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Humphreys, J.
Appellant, James W. Dennis, brought suit in the St. Francis County Chancery Court against E. A. Long and E. A. Long, Jr., for the purpose of cancelling a deed executed by E. A. Long, Sr., on the 6th day of July, 1903, to him for lots 5 and 6 in block 27¿ in the original town site of Forrbst City, Arkansas, and for the purpose of obtaining a judgment against said Long for $1,700, the consideration paid by him to said Long for the real estate; and for the further purpose of obtaining a construction of the will by which Long obtained title to said real estate.
Appellant alleged that he was the owner of the real estate under deed of warranty from E. A. Long, Sr., and had been in possession thereof since the date of purchase ; that at the time he purchased the land, E. A. Long represented that he was the sole owner in fee simple of the land and was willing and did warrant the title to same, but that he was now claiming that he only owned a life estate therein, and that E. A. Long, Jr., was claiming to own the reversionary interest therein, he being the only child of E. A. Long, Sr. Appellant offered to deed the property back to Long and to account for rents upon payment for improvements and repayment of the purchase money with interest. The bill also contained a prayer to have his title quieted as against E. A. Long, Sr., and E. A. Long, Jr., in case the court should hold under the will and deed that he obtained an indefeasible fee simple title to the real estate.
A general demurrer was filed to this complaint on the ground that it did not state facts sufficient to constitute a cause of action against the appellees, or either of them.
The demurrer was sustained, and from the decree dismissing his bill appellant has appealed to this court.
Appellee insists that the bill is for the sole purpose of obtaining the construction of a will disposing of legal estates only, and which makes no attempt to create any trust relations with respect to the real estate in question. If this were the only purpose of the bill, the position of learned counsel for appellees would be sound, for it was said by Mr. Chief Justice Hill, in the case of Frank v. Frank, 88 Ark. 1, involving a question similar to the one involved here, that “in view of these authorities, and many more which may be found cited by the test writers and reviewed in the cases mentioned, it was unquestionably the duty of the chancery court to refuse to entertain the bill; and, for the error in entertaining it and rendering a decree construing the will, the decree is reversed, and the cause remanded with instructions to dismiss the bill. * * *”
The sole purpose of this bill, however, is not to obtain a construction of the will. The gist of the bill is for the purpose of rescinding the contract of sale and purchase and for the cancellation of the deed.
The demurrer presents the further question of whether there are sufficient allegations in the bill to constitute a cause of action for rescission.
The main allegation in the complaint upon which appellant hinges his right to a rescission is as follows: “Plaintiff further alleges that at the time he purchased the said land of the defendant, E. A. Long, Sr., the said E. A. Long represented that he was the sole owner in fee simple of the land and was willing and did ^arrant the title to same, but plaintiff says that if said Long did not have such a title that the plaintiff was defrauded, or at least there was a breach of warranty of title if the defendant, E. A. Long, did not have a good title to said lands in fee simple. Plaintiff says that owing to the fact of the claim of the defendant, E. A. Long, Sr., that he had only a life estate, and the claim also made by the other defendant that he is the owner of the reversion, that the title of the plaintiff is clouded and he is unable to sell the land for any price owing to the uncertainty of his title.”
This allegation does not meet the strict requirement of allegations necessary to set aside conveyances of real estate on the ground of fraud. The allegation, however, taken in connection with the allegations pertaining to the will and the' relations of the parties, is a sufficient allegation charging that E. A. Long, Sr., or both E. A. Long, Sr., and the appellant, James E. Dennis, were mistaken as to the character of title Long obtained under the will. The will devised a life estate only in the lands to E. A. Long, Sr. Dempsey v. Davis, 98 Ark. 570.
It is alleged that .appellee represented to appellant that he owned a fee simple title to said real estate, and his covenant of warranty clearly indicates that he was attempting to convey a fee simple estate in the lands to appellant. It is apparent that this representation was made through a mistake of either or both appellee and appellant. A life estate only having passed from appellee to appellant under the will and by the deed, it is apparent that appellant is deprived of the fruits of his purchase, or, in the language of another, “the substance of the thing he bought.” This court discussed the character of mistakes in matters of law and fact against which courts of equity would relieve, in the case of Fitzhugh v. Davis, Admx., 46 Ark. 337. Many authorities were reviewed in that case, and the court said: ‘ ‘ The rule is, To entitle a vendee of land, who has gone into possession under a deed with general' covenants of warranty, to rescind on the ground of failure of title, the loss must be of such character as that he is thereby deprived substantially of the benefits of his purchase, but if the beneficial enjoyment of his contract be not materially taken away, and there is only a partial failure of consideration which can be compensated in damages, there is no cause for rescission.” ,y
The same principle was recognized in the well considered case of Reggio v. Warren et al., 20 Am. & Eng. Ann. Cas. 1244, and 207 Mass. 525. In that case, it was said by Mr. Justice Sheldon: “But it is now well settled that this rule is not invariably to be applied. In some cases where gréát injustice would be done by its enforcement, this has been avoided by declaring that a mistake as to the title to property or as to the existence of certain particular rights, though caused by an erroneous idea as to the legal effect of a deed or as to the duties or obligations created by an agreement, was really a mistake of fact and not strictly one of law, and so did not constitute an insuperable bar to relief. Again, the learned Justice said: “In other cases, sometimes as a ground of decision and sometimes merely in discussion or argument,, it has been said that there is no established rule forbidding the giving of relief to one injured by reason of .a mistake of law, but that whenever it is clearly shown that parties in their dealings with each other have acted under a common mistake of law and the party injured thereby can be relieved without doing injustice to others, equity will afford him redress.” The rule laid down in Reggio v. Warren, supra, is supported by the great weight of authority.
Since the will in question vested a life estate only in appellant, the two lots for which he paid $1,700 are rendered almost valueless. It would be' next to impossible to ascertain his damages. In fact, a suit will not lie for damages on the covenant of warranty until eviction, and there can be no eviction until after the death of appellee. Thompson v. Brazile, 65 Ark. 495.
He has no remedy at law unless it be a remote, uncertain remedy. His title is clouded by a reversionary in • terest and rendered of little or no value and almost unsalable.
The case comes clearly within the equitable doctrine of rescission laid down in the cases referred to in this opinion.
The decree is reversed with instructions to overrule the demurrer and reinstate the bill. | [
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McCulloch, C. J.'
The plaintiff, L. A. Bodine, alleges that he was employed by the defendant to sell certain property, the latter to pay a commission on the sale, and that he produced a purchaser to whom the defendant subsequently sold a portion of the property. This is a suit to recover the amount of commissions alleged to have been earned on the sale.
(1) Defendant, Penn Lumber Company, is a corporation operating a mill at Beirne, Clark County, Arkansas, and owned a sawmill, logging railroad, cars, locomotives and a large body of timber lands. In February, 1914, defendant entered into a contract with the plaintiff authorizing him to sell certain property and agreed to pay plaintiff a commission on the sale. The property specified to be sold embraced 9,000 acres of timber land, a sawmill, eight miles of steel railroad, ten logging cars, two locomotives, tenant houses, store and office buildings. The timber was estimated at 55,000,000 feet of gum,- oak, hickory, cypress, ash and elm. The price specified was $180,000, and defendant agreed to pay plaintiff a commission of $10,000 on the sale. The contract stipulated that there was to be “a prompt sale only.” All the negotiations between the two parties were by written correspondence through the mails, and there is-no dispute as to the contents of the correspondence or as to what was done thereunder. The trial court directed the jury to return a verdict in favor of the defendant, and the only question with which we are concerned now is as to the correctness of that direction. If there was a conflict in the testimony or as to the legitimate inferences which might have been drawn therefrom, then, the case ought to have been submitted to the jury for a determination of the issue.
The correspondence between the parties began on February 7, 1914, and on February 12, 1914, plaintiff, in a letter to defendant of that date, made the following inquiry: “You say in your letter you will pay me a commission of $10,000 if I furnish you a customer who buys per the enclosed proposition. I understand this to mean I am to get this same commission if I furnish a party who buys at any proposition agreed on between you and him. Is this correct?” Defendant replied by letter as follows: “We have yours of the 12th. Yes, we will expect to pay you the commission of $10,000 if you furnish us a buyer for the property as per ours of the 7th and we make him a different trade. You to accept the same terms on your commission as we accept on the trade in the same proportions. However, we would not consider a price any less than we have named.”
The plaintiff opened up negotiations with the McLean Hardwood Lumber Company, a concern located and doing business at Memphis, Tenn., and in March a representative of that corporation accompanied plaintiff to the locality where the property in question was situated and was introduced to defendant’s representative as a prospective purchaser. They looked over the property together and the plaintiff left the proposed purchaser in the hands of defendant’s representative to make a sale. The McLean Hardwood Lumber Company sent its representative on a number of trips to inspect the property, and negotiations continued up to the month of August, 1914, when they were entirely broken off by a letter to the defendant in which the definite statement was made that the McLean Hardwood Lumber Company would “drop the matter entirely, for we could not expect you to hold the proposition open indefinitely for us.” Defendant immediately addressed a letter to plaintiff as follows:
“Beirne, Ark., 8/22, 1914.
, Mr. L. A. Bodine, Huttig, Ark.:
Dear Sir: We have decided to take onr property off the market and are compelled to call our deal with you off. The interest account is so heavy we expect to operate a little heavier if business will let us.
The McLean H. L. Co. have called the deal off.
The writer is leaving for the North to be gone three weeks, and while I am gone expect to make other arrangements for operating.
Thanking you for the interest you have taken and regretting we could not make the deal, we remain,
Yours very truly,
Penn Lumber Company,
Per J. G. Greene, Secy-Treas.”
There were no further negotiations or dealings between plaintiff and defendant thereafter, except that several times plaintiff inquired by letter about the sale of hickory timber on the land. Nor were there any further negotiations between the defendant and the McLean Hardwood Lumber Company for a year, but after a year had elapsed defendant’s agent went to Memphis and took the matter up again with the McLean Hardwood Lumber Company and made a sale of the oak, ash and cypress timber on the land embraced in the negotiations with the plaintiff and certain other lands in another county, the price on that sale being $50,000, and the contract also embraced an agreement on the part of the defendant to do the logging in getting the timber out.
(2) The contention of the plaintiff is that he was the procuring cause of the sale and is entitled to a commission, notwithstanding there was a cancellation or withdrawal of the agency long before the sale was made. We do not think this contention is well founded. There was no length of time specified in the contract between plaintiff and defendant, and the authority to sell was revocable at any time, subject only to the limitation that it should be done in good faith. The Addressograph Co. v. The Office Appliance Co., 106 Ark. 536; Greenspan v. Miller, 111 Ark. 190; Murray v. Miller, 112 Ark. 227.
(3) There was, according to the undisputed testimony in the case, an unconditional withdrawal of plaintiff’s authority to sell in August, 1914, and there were no further negotiations between the parties concerning the sale to the proposed purchaser, nor is there any dispute in the testimony which relates to the good faith of the defendant in withdrawing the offer. The jury could not have reasonably drawn the inference that the agency was withdrawn in bad faith for the purpose of depriving the plaintiff of his commission upon the resumption of the negotiations with the proposed purchaser. There was, in other words, a complete severance of relations between the defendant and the proposed purchaser, and it was more than a year before the negotiations were resumed, and then they were taken up and concluded upon an entirely different basis. Now, the cases just cited declare the law to be that an owner who has given authority to a party to sell his property has a right to withdraw the offer if done in good faith, and the mere fact that the agent has been instrumental in the introduction of a proposed purchaser does not necessarily give him the right to a commission on a sale subsequently made by negotiations between the owner and the purchaser. Of course, the owner has no right to withdraw the authority for the purpose of preventing the agent from making a sale, but if a reasonable opportunity has been given to the agent to make a sale and he has failed to produce a purchaser who is ready, willing and able to purchase on the terms specified, then the owner has the right to withdraw, and if he subsequently makes a sale he is not liable for a commission, even though it be a purchaser who was originally introduced by the agent. The test, in other words, is good faith on the part of the owner in withdrawing the authority from the quondam agent, and that question should, of course, be submitted to the jury where there is a conflict in the testimony or where the circumstances are such that different inferences might be reasonably drawn, but in the present case there is not the slightest testimony that would justify the inference that the offer was withdrawn in bad faith. A verdict in favor of the plaintiff on that issue would have been entirely unsupported by evidence, and, therefore, the court was correct in refusing to submit the issue to the jury. There is nothing'in the cases cited by learned counsel for the plaintiff which militate against the views here expressed. They rely principally on the case of Scott v. Patterson, 53 Ark. 49, but in that case there had, according to the accredited evidence, been no withdrawal of the authority to sell and a sale was finally made by the owner to a purchaser who had been introduced by the agent or broker, and this court in deciding the case said that “if the agent introduces the purchaser or discloses his name to the- owner, and through such introduction or disclosure negotiations are begun, and the sale of the property is effected, the agent is entitled to his commissions, though the sale may he made by the owner.” Another case relied upon is that of Branch v. Moore, 84 Ark. 462, but the facts of that case were entirely different from those in the present case. In that case the facts were that the agent had procured a purchaser “ready, willing and able,” but the owner declined to consummate the sale on the grounds that his wife would not sign the deed, and a few days later made the sale to the same purchaser whom the agent had introduced. This court decided that there was enough evidence to warrant a verdict in favor of the agent, and that he was entitled to his commissions, and in disposing of the matter the court said: “Appellant contends that he had the right to revoke the agency of appellee at any time before the sale. This is true, if done in good faith. But he could not do so for the purpose of depriving him of his reward and appropriating his services without compensation. He could not make the revocation a pretext for defrauding appellee.”
Counsel for defendant submit other reasons why the judgment should he affirmed, hut it is unnecessary to discuss the matter any further, for the decision of the court was a correct one upon the grounds already stated.
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McCulloch, C. J.
Appellee instituted this action in the circuit court of Pulaski County against appellant, C. P. Harnwell, and his wife, L. B. Harnwell, to recover the' sum of $200, alleged to be due as commission on sale of real estate on Pulaski Heights. Appellee was engaged in the real estate business in the city of Little Rock and employed several salesmen or solicitors, one of whom was a Mr. Spencer. The transactions involved in this controversy were conducted between Spencer and C. P. Harnwell, and the real estate which was the subject of the contract was owned by Mrs. Harnwell. It is alleged in the complaint that Mrs. Harnwell, through her husband and agent, C. P. Harnwell, engaged with Spencer to permit the latter to sell said real estate at a price stated and to pay a commission of 5 per centum for it; that Spencer produced a purchaser with whom Mr. Harnwell entered into a contract for the sale of the property and that subsequently Mr. Harnwell executed his note to appellee for the sum of $200, for the amount of agreed commission, but said note was not given in satisfaction of his account against said L. B. Harnwell, but only as security therefor, and that no part of said commission had been paid. Appellants in their answer denied that Mrs. Harnwell entered into any agreement to pay a commission or that Spencer had procured a sale of the property in question, but that the purchaser produced by Spencer was unable to consummate the attempted sale; that negotiations with that person were abandoned, and the owner of the property subsequently made a sale to the wife of the proposed purchaser and that said note executed by said C. P. Harnwell was given without any consideration. The cause was tried before a jury, but the court gave a peremptory instruction in favor of appellee against both of the appellants, and after judgment was entered against them, they both appealed to this court.
The question presented was whether or not the testimony tended to establish a defense which gave the appellants the right to a submission of the issues to a jury. It appears from the testimony that Mrs. Harnwell owned three lots on Pulaski Heights which her husband had endeavored to sell for her. Spencer, in acting for appellee, approached Mr. Harnwell for the purpose of getting the property on his sales list, and an agreement was entered into for the payment of a commission in the event the purchaser was produced. Spencer negotiated a sale of the property to a Mr. Booher, and presented Booher to Mr. Harnwell, and they entered into a contract for the sale of the lots, which contract was reduced to writing and signed by Mr. Harnwell as agent for his wife. That sale was not, however, consummated, for the reason that Mr. Booher was involved in financial difficulties and unable to pay for the lots, and the contract was abandoned, and a new one entered into between Mrs. Booher and Mrs. Harnwell. The latter sale was consummated by the execution of deeds conveying the property to Mrs. Booher and a mortgage was taken for purchase money in favor of Mrs, Harnwell. At the time of the trial below the transaction stood in that attitude without all of the purchase price of the lots being paid. A few months after Spencer had introduced Booher to Harnwell, the latter, at Spencer’s request, went to see Mr. Arnold, the appellee, about the payment of commission, and, in the absence of Spencer, Harnwell executed his note to appellee for the sum of $200, which note has never been paid. The testimony on the part of appellee tends to show 1hat the note was not executed in payment of commission, but merely as an evidence of the amount, and that there was no intention* to release Mrs. Harnwell from the obligation as the owner of the property and the principal for whom her-, husband acted. Arnold testified that he knew nothing about the details of the transaction when he accepted the note from Mr. Harnwell. On the other hand, Harnwell testified that he denied any liability for commission on she ground that the sale to Booher was not consummated, but was abandoned and that he finally executed the note merely in response to persistent solicitation of Arnold and Spencer. Appellants offered to introduce evidence showing that the contract of sale with Booher was abandoned because of the latter’s inability to arrange to pay the purchase price, and that another trade was negotiated with Mrs. Booher upon different terms, which involved considerable expense and trouble to Mr. Harnwell. The. trial court refused to admit this evidence on the theory that the commission was earned when a purchaser was produced with whom a binding contract was entered into; The court then gave a peremptory instruction in favor of appellee.
We think the judgment against Harnwell was, upon his own testimony, correct. He admits that he executed the note and that he did so voluntarily in order to satisfy the demands of appellee and Spencer for the commission. He pleads in his answer that there was no consideration-for the execution of the note, but we think his own testimony shows clearly that there was a consideration, for there existed a dispute between him and Spencer concerning the liability for a commission, and the settlement of this controversy afforded a sufficient consideration for the execution of the note. The judgment against C. P. Harnwell will, therefore, be affirmed.
The cause stands, however, in a different attitude with respect to the defense of Mrs. Harnwell. She did not join in the execution of the note, nor does it appear from the testimony that she authorized the execution of the note, or that her husband was acting as her agent in that respect, although the testimony is clear that Mr. Harnwell was representing his wife in the execution of contract which was entered into with reference to the sale of the property. We think the court was right in excluding the testimony concerning the abandonment of the contract entered into with Booher, for the undisputed evidence seems to bring the cause within the following rule announced by this court in Moore v. Irwin, 89 Ark. 289; “In the absence of an express contract by which the broker warrants the financial ability of the purchaser procured by him, or in the absence of fraud on his part, he does not lose his commission, where a binding contract of sale is effected through his agency, because the purchaser procured by him is financially unable, or for any other reason fails to carry out his contract of purchase.”
The evidence of Harnwell warrants the inference that the note was executed in settlement of the controversy, and that being true, the note itself is the full measure of the liability and all other liability was extinguished. The question ought, therefore, to have been submitted to the jury to determine whether or not the note was executed as claimed by appellee merely as security or as an evidence of the amount, and without any intention to extinguish the liability of Mrs. Harnwell, or whether, as claimed by Mr. Harnwell, it was executed in settlement of the pending controversy concerning the liability for commission. If Mrs. Harnwell authorized or ratified the contract entered into with Spencer for the payment of commission, as the testimony clearly shows, then the execution of the note by her husband would not absolve her from that liability, but. on the other hand, there was a controversy concerning her liability, and if appellee accepted the note of her husband in settlement of the controversy, there could be no recovery except from Mrs. Harnwell herself. The court erred, therefore, in taking the case from the jury so far as the defense of Mrs. Harnwell is concerned and the judgment against her is reversed and that part of the cause is remanded for a new trial. | [
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Kirby, J.
This appeal challenges the correctness of a decree holding appellee entitled to the proceeds of a check given for the purchase price of cattle sold for- him as against appellant and others.
Magness, a member of the firm of Magness & Bar-ham, cattle dealers, and who was also the president of the Bank of Western G-rove, sold 100 head of. cattle belonging to appellee at an agreed price and commission for making the sale to Evans Brothers of Pulaski County, Missouri. The buyer, Evans, after the cattle had been weighed, being in a hurry to get back home on that day, gave a single check for the balance of the purchase price, instead of two checks, a separate one for the balance of the commission Magness was to receive, Magness remarking at the time that he only had $65 coming. There being no bank in Yellville, Magness said he would take the check and collect it. He deposited the check in his name the next day in the bank at Western Grove, telling the cashier when making the deposit slip that he only had $65 interest therein, and he gave a check on his account to appellee for the balance, $2,786.72.
The Western Grove bank immediately sent the check to its correspondent bank, appellant, “for collection and credit,” and the check was sent on for collection,-and payment was stopped, and suit was brought by appellant bank, and an attachment issued and the proceeds of the check was paid into the registry of the court here on stipulation of the parties.
The court found that appellee was the rightful owner of said fund, that appellant had wrongfully prevented its payment to him by its suit in Missouri, and decreed accordingly, directing the clerk of the court to turn over the fund in the registry, $2,786.72, to appellee. A decree was also rendered against appellant for interest and costs, and from this decree the appeal is prosecuted.
Appellant hank, to which the check was sent for collection and credit, did not collect it, and had no other right to it than as agent, and, not being hound by an entry of credit, it had no power to bind the real owner thereby. The owner or holder of the paper, who delivered it to the bank for collection and credit, was at liberty to treat the bank as an agent “until the proceeds are collected by the bank in money, and authority of the bank to credit the customer does not arise until it has actually received the money, ’ ’ as said by this court in First State Bank v. Taylor, 183 Ark. 967, 39 S. W. (2d) 519. See also Taylor v. Corning Bank & Trust Co., 183 Ark. 757, 38 S. W. (2d) 557.
"When payment of Evans Brothers’ check was stopped because of the insolvency of the Western G-rove bank and the check returned to appellant, it charged the amount of the check back to the Western Grove bank, and should have returned the check to the Bank Commissioner in charge of the bank for delivery to the owner. The Western Grove bank had to its credit in appellant bank during December, when the check was received, a balance of nearly $5,000 the day after it was received, and it never fell below the amount of the check, and on December 14th, when the check was returned and charged back, the balance was more than the amount of the check. The owner sending the paper for collection could have controlled the disposition thereof until it was paid in full. Branch Bank v. U. S. Nat. Bank of Omaha, 50 Neb. 470, 70 N. W. 34.
Magness, the president of the Western Grove bank, told Berry, the appellee, who was entitled to the money for which his cattle had been sold, that he would deposit the check for collection, which was done, the cashier being told, when he was making the deposit slip therefor, that he, Magness, only had an interest of $65 therein, the remainder belonging to Berry, for which a check was sent him by Magness, which was never presented or paid. Magness was bnt a trustee for the collection of the money, and his written transfer, assignment and authority authorized Berry to sue for the purchase money in his own name, completing the collection thereof himself.
We find no error in the record, and the decree is affirmed. | [
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Hughes, J.,
(after stating the facts.) The court is of the opinion that the demurrer to the indictment shouid have been sustained. First, because it does not allege that the defendant railway company was carrying passengers in the state. Second, the indictment does not charge that the defendant had a passenger depot at Huntington.
The statute under which this indictment was found provides that all railway companies carrying passengers in this state shall “provide separate waiting rooms of equal and sufficient accommodations for the two races at all their passenger depots in this state. The foregoing section shall not apply to street railroads.” Sand. & H. Dig., §§ 6219, 6220. It is not clear from the indictment jjwhat criminal act the defendant is charged with. We think there should have been a more particular description of the offense, as there are so many ways in which the statute may be violated, and to charge simply in the language of the statute in such cases would not be sufficient, as in ordinary cases. It is sufficient, as a general rule, to charge a statutory offense in the words of the statute; but when a more particular statement of the facts is necessary to set it forth with requisite certainty, they must be averred. Moffatt v. State, 11 Ark. 169; State v. Graham, 38 Ark. 519.
Then it seems there is a misjoinder of parties by including the agent Richardson in the indictment. It is made the duty of railway companies to provide separate waiting rooms, and for failure to do so the company is subject to indictment. Sand. & H. Dig., § 6219. It is made the duty of the agent at the station to assign passengers, according to race, to these waiting rooms, and for a failure to do so he is subject to indictment: Sand. & H. Dig., §§ 6224, 6227, 6228. These seem to be separate offenses..
Again, we think the defendant ought to have been allowed to show by evidence offered in the case, and excluded by the court, that it did not own and did not operate the road.
Reversed and remanded, with directions to sustain the demurrer to the indictment.
Battle, J., absent. | [
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Bunn, C. J.
This is a suit by the appellee, W. H. Scott, a citizen of Little Rock, against the appellant company, for damages to a horse. Verdict and judgment for $55 in favor of the plaintiff, and defendant appealed to this court.
The plaiutiff, with others, had been to a picnic at HilPs lake some miles northeast of Little Rock and north of the Arkansas river, and was returning home in his buggy along the road that, coming from the direction of Hill's lake, approaches the river below the lower Iron Mountain railroad bridge; and, about one hundred yards from the northern end of this bridge, stopped to water his horse at a watering trough placed there for that purpose. From this point, apparently, the road plaintiff was traveling led directly across the track of the railroad that crosses this bridge. In fact, up to a month or six weeks before this time this road turned in and crossed this bridge, which had been floored and used as a toll-bridge for ordinary travel, but which use had been discontinued after the building of the free county bridge a short distance above, over which all travel over the Hill’s lake and other dirt roads passed. Due notice and warning had been given in the city papers and by posters at the ends of the Iron Mountain bridge aforementioned, and a watchman or guard was kept at the northern end to give notice, and also to prevent further passage of said bridge, except for railroad purposes.
When the plaintiff attempted to get into his buggy, the horse in starting had become frightened at something the evidence does not disclose, and, increasing its speed, was in a run when it reached the railroad crossing, and at that point turned in'towards the bridge, and ran 15 or 20 feet on to the cross ties and then fell through, as to its feet and'iegs. The plaintiff in the meantime had failed to get into his buggy, but, running along between the body and fore and aft wheels, was constantly endeavoring to get into it, until it was stopped by the falling of the horse. From this position he was extricated by the bridge watchman, who with some others extricated the horse, which by the fall had suffered some injury about the legs. The watchman had endeavored to stop the horse before he reached the bridge, but in its frightened condition he was unable to do so.
Railway companies are not expected to keep their bridges and culverts closed to prevent persons and animals from crossing thereon. Ordinarily, these bridges are not for the use of the public. The one in question had formerly been so used, but this use had ceased, and notice had been given thereof, and reasonable precautions taken, if any were necessary to be shown. See Railway Company v. Ferguson, 57 Ark. 21.
This is not a ease where the fright of the animal was occasioned by the running of defendant’s trains, or by anything done by the railroad company or by its employees; but it is simply an injury to a runaway horse, which had got beyond the control of its driver, who was also its owner, and in its fright had left the road upon which it was being driven for some cause, we know not what, and had turned and run upon the railroad track into the bridge as stated. Nor is this a case where the railroad [had produced the necessity for the bridge, and was therefore bound to keep it in condition to admit passage over it by persons and animals, as in case of a ditch or other artificial excavation near and closely connected with the use of a public highway, and over which a bridge is necessary for the public safety or eonvenieneé, as was the case in St. Louis, etc. Ry. Co. v. Aven, 61 Ark. 141. We see no negligence in the defendants which occasioned the injury complained of in this case, and therefore no liability of the defendant. The judgment is therefore reversed, and judgment here for the defendant. | [
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Riddick, J.,
(after stating the facts.) The facts in this case are somewhat peculiar, but we do not think there is much doubt about the law. When the name of a grantee, as written in a deed, is capable of being applied to two or more persons, parol evidence is admissible to identify the grantee named. In such ease a latent ambiguity exists, which may be removed by extrinsic evidence. Following this rule, it is the common and well-established practice to admit parol testimony to identify persons or property named in a deed or record. Jay v. East Livermore, 56 Me. 120; Cole v. Mette, 65 Ark. 506; Andrews v. Dyer, 81 Me. 104; 1 Jones, Law of Real Prop. § 226.
This does not in any way contravene the rule that parol evidence will not be received to contradict or vary the terms of a deed or other written contract; for the object of this evidence is not to contradict the deed, but, by showing the circumstances under which it was made, to enable the court or jury trying the case to ascertain the person or property referred to, so as to carry into effect the intention of the parties to the instrument.
“It may,” says Mr. Taylor, “be laid down as a broad and distinct rule of law that extrinsic evidence of every material fact which will enable the court to ascertain the nature and qualities of the subject-matter of the instrument; or, in other words, to identify the persons and things to which the instrument refers, must of necessity be received.” 2 Taylor on Evidence, § 1194.
Now, the learned circuit judge was no doubt familiar with these rules of law; but in this case, as the grantees in the deed were described as “John Elliott and Amanda Elliott, his wife,” and as John Elliott could have had at that time only one lawful wife, the circuit judge was of the opinion that it must be conclusively presumed that the Amanda Elliott named was his lawful wife, and that it was not proper to show to the contrary. But we are unable to agree that this view of the law was correct. Both of these women had been married to John Elliott. Each of them was known by the name of Amanda Elliott, and as the wife of John Elliott. The question to be determined by the jury was not which one of them was in law the wife of John Elliott, but which Avas the grantee in the deed from Chastain. Now, it has been held that a conveyance to a person under an assumed name is valid, and passes the title intended to be conveyed. Wilson v. White, 84 Cal. 239. And certainly a conveyance to this woman, who was married to Elliott in Jackson county, describing her by the name under Avliich she was generally known in that county, would pass title to her. If the law was otherwise, injustice might often result. In this case there is nothing to show that the Amanda Elliott of Jackson county knew that Elliott had another Avife living. She may have been altogether ignorant of that, and may have honestly believed that she was his lawful wife and entitled to his name; yet, under the law as given by the circuit judge, if she had purchased and paid for this land, a conveyance to her as “Amanda Elliott, wife of John Elliott,” the name by which she was kuown, would have vested the title, not in her, but in another woman, of whom perhaps neither she nor her grantor had ever heard. This would result, uot in carrying out, but in defeating, the intention of the parties to the deed.
For these reasons, we think the presiding judge erred in instructing the jury, and also erred in excluding evidence tending to identify the grantee named in the deed. Judgment reversed, and new trial ordered.
Hughes, J., dissented. | [
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Meecaeey, J.
The appellant, H. M. Gregory, owned or controlled all of the shares of the capital stock of the Gregory Bns Lines, a Tennessee corporation. The bus line at the time of the contract between Gregory and others owed debts amounting approximately to $150,000. On May 1, 1928, O. P. Garnett asked Gregory if he would sell all the stock of the Gregory Bus Lines and at what price. Gregory agreed to sell for $400,000, and thereafter wrote the following letter:
“Memphis, Tennessee, May 8, 1928.
“Mr. O. P. Garnett, Memphis, Tennessee.
“Dear Sir:
“Confirming our conversation of today:
“I will undertake to procure and deliver to you"all the stock of the Gregory Bus Line for the sum of $300,000.
“I will guarantee the debts of the company not to exceed $100,000.
“This sale is to be consummated on the following basis:
“It is understood that I am to have as my own property cash on hand, notes receivable, and accounts receivable, as of date of transfer.
“If you organize a company to take over the Gregory Bus Lines, with a bond issue, preferred stock, or Class A stock issue, not to exceed $500,000 with a guaranteed dividend of 6 per cent., I will invest of this purchase money the sum of $100,000 in such stock; or if you should desire to increase that stock so as to have sufficient funds to purchase the Smith Bus Lines, Oliver Brothers Bus Company and the Schofield Bus Company, I will still be willing to invest $100,000 provided the bond issue of preferred stock issue should not exceed $800,000.
“Of the purchase price, there shall be paid $35,000 in cash; and the balance at any time within ninety days, provided that the debts of the company be liquidated by you as they become due.
“This proposition holds good until noon, May 14, 1928. “Yours truly,
“H. M. Gregory.”
After receiving this letter, Garnett undertook to raise the $35,000, which was to be paid cash and secured the subscription of $32,275. Wils Davis thereafter agreed to subscribe $6,000, making a total subscription of $38,-275. Checks for the subscription were delivered to Gar-nett. There was thereafter some correspondence between Garnett and Gregory, and Garnett and his associates organized in Arkansas a corporation, the Consolidated Utilities, Inc. Thereafter, on May 19, 1928, the parties prepared and executed a contract which is as follows:
“This contract, made this 19th day of May, 1928, by H. M. Gregory for himself and as trustee for the use and benefit of himself and all other stockholders of the Gregory Bus Lines, a corporation, hereinafter called the seller, and Consolidated Utilities, Inc., a corporation organized and existing under the laws of the State of Arkansas, hereinafter called the buyer, witnesseth as follows: '
“1. H. M. Gregory agrees to sell and transfer to the Consolidated Utilities, Inc., all the stock of the Gregory Bus Lines for $300,000.
“2. The stock was to be placed in the hands of W. W. Hughes, trust officer of the Union & Planters ’ Bank & Trust Company of Memphis, to be held by him as security for the payment of the purchase price.
“3. Gregory guaranteed that the debts of the Gregory Bus Lines did not exceed $100,000.
“4. The Consolidated Utilities, Inc., agrees to pay the debts of the Gregory Bns Lines np to $100,000.
“5. The consideration for the stock was to be paid as follows: $35,000 in cash; $165,000 on November 19, 1928, to be evidenced by a note of the Consolidated Utilities, Inc., to Gregory for that amount; and the remainder, $100,000, was to be paid in the capital stock of the Consolidated Utilities, 7,500 shares of Class A and 3,750 shares of Class B stock.
“6. Until the note for $165,000 was paid, no funds of the Gregory Bus Lines were to be applied other than to pay operating expenses — the remainder to go in liquidation of the note.
“7. The Consolidated was to take over the assets and operation of the Bus Line at 11:59 p. m., May 19, 1928. All division of receipts, cost of operation and closing of the corporation by Gregory, and the beginning of operation by the Consolidated, to be figured as of that date and hour.
“8. Gregory was to retain as his own property all cash on hand, and notes and accounts receivable, as of the date and hour mentioned above.
“9. In witness whereof, the seller has hereunto affixed his signature, and the buyer has caused its corporate name to be signed hereto, and its seal affixed, by its duly authorized officers on this the 19th day of May, 1928.
“H. M. Gregory, Seller,
“Consolidated Utilities, Incorporated,
“By W. B. Bayless, President,
“J. T. Morgan, Secretary.”
On July 12, another contract was entered into, and then on November 19, 1928, still another contract. The parties then on February 1, 3929, entered into another contract. It is not important to set out all contracts here. The supplemental contracts entered into by the parties made provision for the payments and manage ment, operation and control of the bus lines, and it was agreed that the Consolidated Utilities, Inc,, should pay Gregory $200,000, $85,000 to he paid cash and $165,000 to he paid later, and the Consolidated Company was to pay $100,000 of the indebtedness of the Gregory Bus Lines, and Gregory was to pay the balance. The remaining $100,000 was to be paid in the capital stock of the Consolidated Utilities. There are numerous other provisions in the contract, but it would serve no useful purpose to set them out here.
A proceeding was instituted in the United States District Court at Memphis by the Seiberling Tire Company against the Gregory Bus Lines and a receiver was appointed, who took charge of the property and sold same for $205,000. There was also a suit tried in the State chancery court in Tennessee.
The appellant then began this suit in the Crittenden Chancery Court against the Consolidated Utilities, Inc., and numerous individuals. His complaint consists of eighteen typewritten pages, and it is entirely too lengthy to set out in full. However he alleged in his complaint the indebtedness due to him from the Consolidated Utilities, Inc., and the individuals named as defendants, and alleged fraud and deceit on the part of the individuals in inducing him to make the contract and that they fraudulently violated the terms of the ¡contract. The appel-lees filed answer denying the material allegations of the complaint. The chancery court heard the evidence and entered a decree in favor of the appellant against the Consolidated Utilities, Inc., for $88,000, and found in favor of the individual defendants. The Consolidated Utilities, Inc., did not appeal, but H. M. Gregory has appealed to this court and seeks a reversal of the chancellor’s finding in favor of the individuals. The chancellor considered all the ¿vidence including the records in the two suits in Memphis, Tennessee, the testimony of the numerous witnesses and documentary evidence. It would make this opinion entirely too long to set out the evidence. The evidence was conflicting*, and there was substantial evidence to support appellant’s claim and also substantial evidence contradicting the evidence of appellant’s witnesses. Counsel on both sides have filed extensive briefs citing many authorities on the question of fraud and deceit, but it would be impossible to review them all here.
It is well established that fraud and deceit and fraudulent representations and promises made by a party and relied on by another who is injured or damaged thereby, give rise to a cause of action by the party injured, and one who deprives another of any . right by such practices is liable therefor. Any false representations and deceit by promoters of a corporation which induce another to purchase stock, or to enter into any sort of contract to his disadvantage, make the promoters liable to the party deceived. There must however be a false statement, and it must be relied on by the other party.
“Fraud involves the idea of intentional deception, and exists where there is a misrepresentation made with intent to deceive, or with actual knowledge of its falsity. But, while a fraudulent intent is an essential ingredient of actual fraud, and hence must be generally shown in order to maintain an action of deceit, an actual wrongful or fraudulent purpose or intent is not always essential. Moreover, the law affords remedies for the consequence of innocent misrepresentations. Where an act is originally tainted with a fraudulent intent the subsequent abandonment of the intent is ineffectual as. against an innocent person who is injured by the act. Actual fraud is the foundation, or, as it is often said,-the gist or gravamen of the action of deceit. Proof of a mere naked falsehood or representation is not enough even though the complaining party relied on it and sustained damages, but, in addition thereto, the false statement must have been knowingly or intentionally made. Moreover, the misrepresentation must have been made with the intention of deceiving the complaining party.” 12 R. C. L. 323-324.
Therefore, if the individual appellees by false and fraudulent representations or deceit, made to Gregory and relied on by him, caused him to enter into the contract or injured or damaged him in any way, they were liable to him for the injury thus done. Whether or not there has been a fraud in any case is usually a question of fact. Fraud is a question of law only when the facts are undisputed, and but one reasonable conclusion can be reached from the evidence or where there is an entire failure to sustain the issue. 12 R. C. L. p. 444.
One who alleges fraud must prove it by a preponderance of the evidence. Of course, it may be established by circumstantial evidence as well as direct. In fact, it is generally difficult to prove fraud by direct evidence, but, whether the evidence is direct or circumstantial, the burden is upon the party alleging fraud to prove it by a preponderance of the evidence. 27 C. J. pp. 52 and 62.
The evidence in this case is entirely too lengthy to set it forth in this opinion. We have already said that it was in conflict, and that there was substantial evidence offered by both parties. The chancellor found against the Consolidated Utilities, Inc., and in favor of the individuals. We have carefully considered the entire evidence and have reached the conclusion that the findings of the chancellor are not against the preponderance of the evidence, and this court will not reverse the chancery court unless we can say that the findings of fact by the chancellor are against the preponderance of the evidence. Kelly Trust Co. v. Paving Imp. Dist., 185 Ark. 397, 47 S. W. (2d) 569; Greer v. Stilwell, 184 Ark. 1102, 44 S. W. (2d) 1082; Smith-Arkansas Traveler Co. v. General Tire & Rubber Co., 182 Ark. 818, 33 S. W. (2d) 712; Mente & Co., Inc., v. Westbrook, 181 Ark. 96, 24 S. W. (2d) 976; Love v. Couch, 181 Ark. 994, 28 S. W. (2d) 1067.
We find no error, and the decree is affirmed. ' | [
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Butler, J.
The appellant, while engaged in the performance of his duties as an employee of the appellees, suffered an injury which caused the loss of an eye. He brought suit to recover damages alleging that his employers were negligent in failing to provide him reasonably safe instrumentalities with which to perform his labor.
Appellees answered denying negligence and pleading assumed risk and contributory negligence as a bar to recovery. At the conclusion of the testimony, on motion of the appellees, the jury returned a verdict at the direction of the court. Judgment was entered in accordance with the verdict, from which this appeal is prosecuted.
There is only one question presented for onr determination — i. e., was the trial court correct under the evidence adduced in directing a verdict for the appellees? It is a rule of universal application that, where the testimony is undisputed and from it all reasonable minds must draw the same conclusion of fact, it is the duty of the court to declare as á matter of law the conclusion to be reached; but, where there is any substantial evidence to support the verdict, the question must be submitted to the jury. In testing whether or not there is any substantial evidence'in a given case, the evidence and all reasonable inferences deducible therefrom should be viewed in the light most favorable to the party against whom the verdict is directed, and, if there is any conflict in the evidence, or where the evidence is not in dispute but is in such a state that fair-minded men might draw different conclusions therefrom, it is error to direct a verdict.
The evidence tended to establish the following facts: Appellant is a “metal cooker,” it being his duty to properly melt metal for use in connecting joints in a pipe line. At the time of the injury the appellees were engaged in constructing a water main, and the appellant was employed by them in his usual capacity. The water main consisted of iron pipe which was being laid in a ditch dug for that purpose, and, on the occasion of the-appellant’s injury, the workmen who were engaged in-excavating the ditch had been sent to another place, leaving some rock in it. The foreman passed by the place where appellant was working and told him to get an iron or steel maul, which he pointed out, and to remove some rock which was lying in the ditch. In order to do this, it was necessary to shatter the rock. The foreman told the appellant to hurry, and, in obedience to the orders of the foreman, he picked up the maul which was lying about 150 feet from the rock to be broken, and, throwing it on his shoulder, hurriedly wenit to the place and struck the rock two or three blows. As he struck the last blow, something hit him in the eye, either a fragment of the rock or a sliver from the maul, resulting in the loss of sight in that eye. The appellant had never used a maul of that kind or for that purpose before. At one time about ten or twelve years before the accident he had used a maul or sledge in breaking up rubble while working on a levee. An examination of the maul after the injury showed that it was in a worn condition. The handle was not straight, and the striking face of the maul had been worn, so that it did not have a flat surface, but “was broken all off around the edges of it, and had a little ball in the middle.”
The appellant testified that he did not make any examination of the maul at the time he picked it up because he had been told to hurry, and he did not think the foreman would order him to take a tool that he could hurt .himself with, and so just did not look at it. There was testimony of a witness who had had sixteen years’ experience in stone quarries to the effect that it was proper, when the striking face of a maul became battered, to have it redressed so as to make the face of it smooth, as there was a tendency of rock to fly outward to the side when struck by a maul with a smooth face, but that if struck by a battered maul with rounded surface the tendency of the broken rock was to fly upward, and that was considered one of the dangers of using a battered maul; that there was also danger of slivers of steel breaking from the maul if it had a battered or rounded surface; that, while any one could observe the condition, it would be only one having experience who would understand the danger from its use.
It is the theory of the appellee that the maul should be classed as a simple tool which the master was not required to inspect, and that the dangers attendant upon its use would be only those ordinary risks which the servant would assume, and also its condition was obvious and the danger of its use" ought to have been as apparent to him as to the master. The duty resting upon the master in the selection and inspection of the instrumentalities which the servant used in his work in all cases is to use ordinary care that they are reasonably adapted and safe
for tlie purpose intended, and, in determining that question, the simplicity of the tool and the skill required in its use is one of the circumstances to he considered in determining whether or not the master has exercised ordinary care. There is no fixed rule by which the liability of the employer for a defect in a common tool can be ascertained. Arnold v. Doniphan Lumber Co., 130 Ark. 486, 198 S. W. 117. Bach case must necessarily depend on its own peculiar circumstances.
In Arnold v. Doniphan Lumber Co., supra, the court approved the following statement: “A master is not required to inspect common tools and appliances which are committed to the custody of a servant who has the capacity to understand their character and uses.”
In Williamson & Williams v. Cates, 183 Ark. 579, 37 S. W. (2d) 88, it is said: “The axes were simple tools such as men engaged in appellee’s occupation are accustomed to use from boyhood, and the fact that they were dull could in no wise contribute to the happening of the injury, for that was occasioned by the falling of a brush, and the mere fact that it was severed with a dull axe instead of a sharp one could make no difference. As we have seen, appellee must have had knowledge of the use and construction of the axes, as he appears to have been a man of ordinary intelligence. Therefore there was no duty resting upon the appellants to exercise ordinary care in the selection of the axes, for they were simple tools in ordinary use.”
In the case of Little Rock M. R. & T. Ry. Co. v. Leverett, Admr., 48 Ark. 333, 3 S. W. 50, quoted in the case of C. R. I. & P. Ry. Co. v. Smith, 107 Ark. 512 (156 W. 166), at page 522, it was held that a servant is not required to inspect the appliances of the business in which he is. employed for latent defects, but only to take notice of such, defects or hazards as a-re obvious to the senses. The fact that he might have known these or had the means and opportunity of knowing them will not preclude him from a recovery unless he did in fact know, or, in the exercise of ordinary care, ought to have known, of them.
After a careful consideration of the evidence adduced on behalf of the appellant, applying to it the principles of law above stated and giving to it its strongest probative value, we are of the opinion that it warranted a submission to the jury of the question of negligence on the part of the master, and whether or not the servant assumed the risk or was himself guilty of negligence contributing to his injury. The question involved in this case, like that of C. R. I. & P. Ry. Co. v. Smith, supra, “is an exceedingly close one.” In that case the defective tool was one in common use and practically identical with’ the tool involved in the instant case. There the servant injured had been directed to get the particular tool for the use of his fellow-servant, which tool, while in such use, glanced from the object struck because of a worn and defective face. The court said: “The undisputed evidence shows that the hammer had an imperfect striking face and was in a defective condition, when considered with reference to the uses for. which it was intended. * * * Hence the jury was justified in finding from the evidence that the face of the hammer was defective, and that its defective condition; was the efficient cause of the injury to the plaintiff. Neither can we say, as a question of law, that, under all the facts and circumstances adduced in evidence, an unskilled laborer of ordinary intelligence should have known that the hammer was defective and should have known and appreciated the dangers that he was exposed to by reason thereof. There is no hard and fast rule that may be laid down as governing the liability of an employer for a defect in common tools. In view of this condition, we do not undertake to say what state of facts the rule of liability should embrace and what state of facts it should not. * * * There was no duty imposed upon either plaintiff or Blackman to search for defects in the hammer. It cannot be said, as a question of law, that the defect in the face of the hammer was so open and obvious that they could have seen the defect by a glance or by such casual observation as it would be natural for plaintiff to have made while carrying tbe hammer to Blackman or by Blackman to have made after receiving it. ’ ’
Since there must be another trial of this case, it is proper that we refrain from commenting npon the effect of the evidence or pointing ont with particularity that which appears to ns to warrant a submission of the case to the jury.
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Mehaeey, J.
Tbe appellee brought this suit for damages, claimed to have been suffered by him, by reason of the negligence and carelessness of appellant, in giving appellee erroneous information as to whether the bus of appellant had already left Van Burén, Arkansas.
The appellant is a corporation organized under the laws of Missouri, and owns and operates a bus line through the States of Missouri, Arkansas, and other States, and operates upon a regular schedule through Crawford County, Arkansas.
Appellee alleged that on August 28,1931, he received a message informing him of the serious illness of his daughter at Harrison, Arkansas, and that she was going to be operated upon immediately for appendicitis; that when he received the message he went to the ticket office of appellant in Van Burén, which was located in a drug store, and asked when he could obtain passage on one of appellant’s busses to Springdale, Arkansas, so that he could go there and then continue his journey at the earliest possible moment; that the agent of appellant ¡carelessly, negligently and wrongfully informed appellee that the bus had already gone, and there was no other bus or means of transportation that day; that said bus had not in fact gone, but left the city of Van Burén 15 or 20 minutes later, but that appellee relied on the information and was unable to catch the bus, and because of the wrongful information given him, he was delayed several hours in arriving at the bedside of his daughter, and was forced to make a part of the trip in an open car, and the exposure caused him to have a severe cold, and he became sick and suffered great mental agony on account of being deprived of being present at the bedside of his daughter during her illness and during the operation. He alleged that he was damaged in the sum of $2,500.
The appellant filed answer admitting that it was a corporation, and was operating busses for the transportation of passengers in and through Crawford County, Arkansas, and admitting that its busses stopped at or near the Palace Drug Store to permit passengers to alight and to take on passengers, and denied all the other material allegations of the complaint.
It also alleged that appellee was guilty of contributory negligence, and that he assumed the risk. It also alleged that there were other means of traveling to Harrison, Arkansas, and that appellee conld have gone much more directly and quickly by other means of travel. Appellant also filed motion to quash service.
There was a jury trial and a verdict for $200, and the case is here on appeal.
It is admitted that appellant is a public carrier; that it operates its busses on regular schedule; and that the drug store where appellant claims to have gone for information is a regular stop for discharging and taking on passengers; and that its agents there sell tickets.
Appellant insists that the relation of passenger and carrier never existed between appellant and appellee, and that the court should have directed a verdict for appellant:
The appellee testified that he had received a message advising him of the serious illness of his daughter, and that an operation would be performed almost immediately; that he desired to go to Harrison by way of Spring-dale because his wife was at Springdale, and it was his intention that he go to Springdale, get his wife, and that both of them make the trip to be with their daughter.
The appellant operated a bus from Van Burén to Springdale. It was appellee’s intention to take passage on this bus to Springdale, and then he and his wife would get other conveyance to Harrison.
He went to the ticket agent at the drug store, Mr. Triplett, and inquired of him the time the bus would leave for Springdale. Mr. Triplett told him it had already gone. Relying on. that information, and knowing that there was no other means of transportation to Spring-dale until late in the afternoon, he went to a restaurant to get lunch, and then saw the bus leaving the city of Van Burén.
If the agent of appellant had given the correct information, he would have taken passage on this bus, and would have arrived at Springdale several hours earlier than he did arrive, and would have taken passage from there on some conveyance other than appellant’s bus.
After the bus bad left van Burén appellee went to Springdale on tbe six o’clock train, tbe first conveyance by wbicb be could go to Springdale. It took bim about 30 minutes to get bis wife and get a conveyance from Springdale to Harrison. They drove practically all nigbt, arriving at Harrison about six o’clock in tbe morning. Tbe weather was inclement; there was a heavy fog, and it was necessary to keep tbe door open a great portion of tbe time in order that they could see to drive. From this exposure be contracted a severe cold, and became sick and was treated by a physician. He paid a man $10 to take bim and bis wife in bis car from Springdale to Harrison.
This evidence of appellee was corroborated by other evidence.
Triplett testified that be did not remember seeing tbe plaintiff that day; be did not think be gave bim tbe information about tbe bus, but did not remember. Other clerks in tbe drug store who sold tickets also testified that they did not remember about tbe matter.
As to whether appellee went to tbe drug store and asked for information about tbe bus, and as to whether Triplett told bim it bad already gone, were questions of fact for tbe jury.
Appellant first contends that there is no liability because tbe relation of carrier and passenger never existed. A common carrier of passengers owes a duty to- tbe public, and to any one of tbe public intending to become a passenger who applies to tbe agent for information as to tbe arrival and departure of trains or busses.
“It is tbe duty of a carrier to furnish intending passenger with such information, instructions and directions as to its own system or course of conduct as may reasonably be necessary to enable them to pursue their journey, and tbe passenger has tbe right to rely upon tbe representations and replies to inquiries made by bim of tbe proper agents or employees of tbe carrier. Thus when a railroad company authorizes an agent to sell tickets over its line, sncli agent has authority and it is his duty, upon application made to him, to furnish information to persons desiring to purchase tickets over the road he represents as to the proper trains upon which to travel, and whether such trains will stop1 at the station to which the ticket is sold, and other like information regarding the use of the ticket. It is also the duty of the carrier to give a passenger reasonable notice of the necessity for changing cars at .junction points.” 4 R. C. L. 1068.
When one intending to take passage applies to the ticket agent of the carrier for information as to the arrival and departure of its trains or busses, it is the duty of the agent to give correct information, and the person intending to take passage has a right to rely on the information given him by the agent. In such case, if the agent of the carrier gives erroneous information which results in damage to the person applying for information, the carrier is liable if its negligence is the proximate cause of the injury. St. Louis S. W. Ry. Co. v. White, 99 Tex. 359, 89 S. W. 746, 2 L. R. A. (N. S.) 110, 122 Am. St. Rep. 631; Shockley v. So. Ry. Co., 93 S. C. 533, 77 S. E. 221; Hutchinson on Carriers, vol. 3, 1240.
It was, of course, the duty of the appellee to exercise ordinary care; but, when he received information that his daughter was seriously ill, he had a right to go to her bedside, and to take passage on whatever conveyance he could, exercising reasonable care. If he did what a person of ordinary prudence would have done under the circumstances, he was not guilty of contributory negligence, and his acts, if not guilty of contributory negligence, would not prevent him from recovering damages for the wrongful conduct of appellant, if such conduct was the proximate cause of his injury.
Appellant contends that some of the instructions given at the request of the appellee were erroneous, and that the court refused to give instructions requested by the appellant which should have been given. The instructions are lengthy, and we do not deem it necessary to set them out. We have carefully examined all the instructions given by the court, and the instructions, as a whole, fairly submitted the case to the jury.
The jury returned a verdict for $200, and it is not contended that the verdict is excessive. The questions as to the negligence of the appellant and the contributory negligence of the appellee were submitted to the jury on correct instructions, and their findings of fact are conclusive here.
There was substantial evidence to support the verdict, and the judgment is affirmed. | [
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Humphreys, J.
Appellant was convicted in the Little Rock Municipal Court for transporting liquor, and, on appeal to the criminal division of the Pulaski Circuit Court, where the case was tried de novo, he was again convicted of said offense and adjudged to pay a fine of $100, from which is this appeal.
The record reflects that appellee lived at 408 West Markham Street and had walked from his house onto the sidewalk and was approaching a taxicab which had stopped near the curb a short distance from the entrance to his home, where he was stopped and searched by officers, who found a small flask of whiskey upon his person. The record is silent as to where he was going and what he was going to do with the whiskey. Under the rule an nounced in the case of Locke v. Fort Smith, 155 Ark. 158, 244 S. W. 11, the evidence detailed above is insufficient to show that he was transporting* liquor within the meaning of the statute prohibiting the transportation thereof.
On account of the error indicated, the .judgment is reversed, and the cause is remanded for a new trial. | [
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Smith, J.
Appellee recovered judgment in the sum of $30,000, to compensate an injury sustained by him while riding as a passenger on one of appellant’s passenger trains. It was alleged that the train made a sudden stop, which threw appellee off his feet as he was returning to his seat from the toilet, throwing him across the arm of a seat and severely injuring him. The railroad company defended upon the ground that the train did not make any violent or unusual or negligent stop, and denied that appellee had sustained any serious injury.
These questions of fact were submitted to the jury under instructions correctly declaring the law, and are concluded by the verdict of the jury in appellee’s favor.
There was a motion for a new trial upon the ground of newly discovered evidence. But, without reviewing this testimony and the circumstances of its production, we announce our conclusion to be that this testimony appears to be cumulative of other testimony offered at tbe trial which tended to corroborate certain testimony offered by appellant or to contradict other testimony offered by appellee, and the rule is well settled that new trials are not granted for newly discovered evidence that is merely cumulative. Forsgren v. Massey, 185 Ark. 90, 46 S. W. (2d) 20.
It is essential also that due diligence be shown in discovering the new testimony, and the circumstances of this case are such that we would not hold that the trial court had abused its discretion in refusing a new trial for the newly discovered evidence, on account of the lack of proper diligence in the discovery and production of this testimony. Forsgren v. Massey, supra.
The engineer in charge of the locomotive pulling the train on which appellee was injured was made a party defendant, but the jury returned a verdict in his favor. It is very earnestly insisted, for the reversal of the judgment against the railroad company that, inasmuch as a verdict was returned in favor of its employee whose negligence is said to have occasioned the injury, a verdict should have been directed in its favor after the jury had found in favor of the employee.
This question was considered by the court in the cases of Patterson v. Risher, 143 Ark. 376, 221 S. W. 468; Davis v. Hareford, 156 Ark. 67, 245 S. W. 833; and Mississippi River Fuel Corp. v. Senn, 184 Ark. 554, 43 S. W. (2d) 255.
The effect of those decisions is that it does not necessarily follow that a corporation is discharged from liability for an injury occasioned by the negligence of its employee because a jury refused to assess damages against that employee when sued in conjunction with the employer. The theory is that the doctrine of comparative negligence obtains in the suit against a railroad company or other corporation, whereas contributory negligence is an absolute defense to the suit against the servant or employee himself.
It is true also, as is pointed out in the cases above cited, that, in suits against railroad companies for damages arising out of the operation of trains, the injured party has the benefit of the statutory presumption of negligence -which arises upon proof being made that one was injured by the operation of a train, whereas there is no such presumption against the servant or employee himself.
These distinctions are fully discussed in the opinions cited and need not be further reviewed. It will suffice to say that the instructions given in the trial of the cause in the court below were correct declarations of the law.
We find no error in the record except that, in our opinion, the judgment was for an excessive amount, and this error may be cured by a remittitur, unless appellee shall elect to have the cause remanded for a new trial.
The testimony on the part of the railroad company was to the effect that appellee could not have sustained any serious injury on the train, as there was no such sudden stopping of the train as to have thrown him down violently, and that the present physical condition of ap-pellee is due to injuries received both before and subsequent to the injury for the compensation of which he here sues. But we must view the testimony on this branch of the case, as well as upon the question of negligence itself, in the light most favorable to appellee, and, when so viewed, the facts may be summarized as follows: Ap-pellee was'thrown very violently across a seat. He thought at the time that his back was broken and so stated to the porter upon leaving the train. He was able to get home unaccompanied after reaching Little Rock, his destination, about 11 p. m. He stopped on his way home for a cup of coffee and a sandwich, although he was suffering greatly. After reaching home he was confined to his bed for twenty-seven days. He requested the railroad company to send its claim agent and a physician to see him. X-ray pictures were later made at the hospital of the railroad company in Little Rock, which were offered in evidence. Appellee went to Hot Springs after bis injury and made that place bis headquarters for some months. He was not examined for purposes of treatment by any physician in that city. He was examined by Doctors H. E. Ruff and A. G. McGill, both of Little Rock. These doctors expressed the opinion that appellee had been severely injured. Dr. McGill was the principal witness for appel-lee on the questions of the extent and character of the injury. He testified that he made X-ray pictures of ap-pellee, but he had made them upon the order of the Brotherhood of Railway Trainmen, and, for that reason, had not brought them to the trial, which did not occur in Little Rock the place where witness maintained his office. Dr. McGill testified as follows: “Q. Aside from whatever the X-ray may have shown, tell the jury what was the result of your physical examination you made, what you learned from that. A. Well, he was swollen over the spine, and there was some swelling over his twelfth rib on the left side, and there was a tender spot on his spine in the upper lumbar region on the other side, on the right side. Q. Tell the jury whether or not from the physical examination, aside from the X-ray, if you could see he was permanently injured. A. I thought he was. Q. How long and in what way will he be affected by this condition? A. Well, he will suffer from pain, and he will have a weak back and stiff back and always be nervous. Q. In what way are the nerves affected? A. From the shock of the injury and possibly from the inflammatory products that were thrown out at the seat of his injuries.”
Appellee testified that his pain was so constant and severe, that he had difficulty sleeping, and that he was compelled to leave his bed at all hours of the night in order to obtain relief. When asked how he suffered, he answered: “Well, with pain and my nerves, and when I walk a little I will get light headed, and if I get in an argument my nerves are completely gone.”
The clerk of the hotel where appellee resided in Hot Springs testified that he had frequently seen appellee at various hours of the night walking around the hotel lobby.
Appellee testified that he could not walk except with the aid of a cane or a crutch, hut he did walk with their aid.
Appellee was 47 years old at the time of his injury. He had been a railroad switchman for twenty-four years, from which employment he earned from one hundred to two hundred dollars per month, but he was not thus employed at the time of his injury. After leaving the railroad service, he wrote insurance, and in one month earned over $500. His earnings did not average this amount. Upon this question he testified as follows: “Q. How much did it amount to when you were selling insurance? A. One month I made $560. I was the third out of 560 agents of the United States; they put on a contest for cash premiums of $100 for the man that sells the most stuff, and I sold $5,510 of the premium business in 1924.” It was not explained what portion of the $5,510 premiums were paid appellee as his compensation. He testified that since his injury he had been unable to obtain employment or to render any service by which he could earn money.
Certain X-ray pictures were offered in evidence by the railroad company, which, it is said, show no injury to appellee’s spine or vertebrae, these being the pictures taken at the railroad company’s hospital. But it is answered that these pictures do not show the vertebrae which were injured according to the testimony of appellee.
We must assume, in view of the testimony on appel-lee’s behalf and the verdict of the jury, that appellee has sustained a serious and a permanent injury, and thát the fall sustained on the train is the cause thereof. But, even so, appellee is not a paralyzed helpless man. Dr. McGill stated: “A. Well, he will suffer from pain, and he will have a weak back and a stiff back, and always be nervous.” In answer to the question, “When, in your opinion, doctor, will he ever recover?” Dr. Buff said: “It is my opinion that he will never be entirely well.”
Viewing the testimony in the light most favorable to appellee, we have concluded that a judgment for any sum above $15,000 will be excessive, and that it was preju dicial error to render judgment for a larg-er sum, but the error may be cured by reducing tbe judgment to tbat amount, and it is so ordered unless appellee shall elect, within fifteen days, to have the cause remanded for a new trial. | [
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Smith, J.
The St.. Louis Joint Stock Land Bank, hereinafter referred to as the hank, made a loan upon a farm in Pulaski County of $25,000, which was secured by a deed of trust describing the farm and reciting1 that there were 620.41 acres of land, more or less. The borrower made default in meeting- his payments, and, to save the expense and delay of foreclosure proceedings, executed a deed to one W. L. Bacon under the direction of the bank. The fact appears without serious question that Bacon was only a nominal purchaser and paid nothing for his deed. The obvious purpose was for the books of the bank to show the ownership of the loan, rather than of the land. On July 29, 1927, Bacon conveyed the land to Mrs. Mary S. Finch, the wife of W. P. Finch, an employee of the bank. Mrs. Finch paid nothing for the land, although she apparently assumed the payment of the mortgage debt. This was also a mere bookkeeping transaction.
W. P. Finch, the husband of the last-named grantee, as the agent of the bank, negotiated a sale of this farm to E. L. Carter. The bank denied that Mr. Finch was its agent, but the court found that he had acted in that capacity, and we think the testimony fully sustains that finding. Finch, as the apparent agent of his wife but as the actual agent of the bank, negotiated the sale of the land to Carter, pursuant to which Mrs. Finch executed a deed on September 6, 1927, to Carter, with the usual„covenant of warranty. This deed described the farm as “containing in all 620.41 acres, more or less.” Carter made a cash payment and assumed the payment of the balance due on the original loan made by the bank, which he testified he would not have done had he known of the deficiency in acreage.
Carter entered into the possession of the land and began to cultivate it, and in April, 1931, wrote the bank that there was a large deficiency in acreage. The hank denied that it was Carter’s grantor, and suit was filed on August 1, 1931, by Carter against the Finches and the hank, in which a rescission of the contract was prayed on the ground of fraud, with the alternative prayer that, if rescission were denied, the purchase price he abated to accord with the actual acreage.
Mrs. Finch filed an answer, in which she alleged that she knew nothing about the farm, and had no interest in it, and that she had received and conveyed the title at the request of her codefendant, the land bank, “without consideration, and without the hope or promise of any compensation; that she was willing and anxious to be of service and to accommodate her husband’s employer, the St. Louis Joint Stock Land Bank,” and that the check which she had received from Carter as a cash payment had been indorsed and delivered by her to the bank at the time she executed her deed. She prayed that she have judgment against the bank for the amount of any judgment rendered against her. The cause, however, was dismissed as to Mrs. Finch.
The bank defended upon the grounds: (1) that it was not the grantor in the deed; (2) that the plaintiff had bought the farm in bulk, without reference to its actual acreage, and (3) that plaintiff had received the acreage described. As to the right of rescission, the bank pleaded the laches of the plaintiff in bringing this suit praying that relief.
We concur in the view of the court below that Carter is barred by laches from maintaining a suit for rescission, for the reason that this relief was not prayed in apt time.
We concur in the findings of the court below on the other questions in the case except as to the extent of relief which should be granted the plaintiff, Carter, on account of the deficiency in the acreage.
The fact that Carter has delayed too long to be granted relief by way of rescission does not affect his right to recover for the shortage in the acreage. It was said in the case of Fort Smith Lumber Co. v. Baker, 123 Ark. 275, 185 S. W. 287: “A party who has been induced to enter into a contract for the purchase of property by the false representations of the vendor concerning the quantity or quality of the property sold may have either of these remedies which he conceives is most to his interest to adopt. ‘ He may annul the contract, and, by returning or offering to return the property purchased within a reasonable time, entitle himself to recover whatever he had paid upon the contract, or he may elect to retain the property and sue for the damages he has sustained by reason of the false and fraudulent representations, and in this event the measure of damages would be the difference between the real value of the property, in its true condition, and the price at which he purchased it; or, to avoid a circuity of action 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 from the price he agreed to pay.’ Matlock v. Reppy, 47 Ark. 148, 14 S. W. 546.”
In the present case we have not only the testimony of Carter that he was induced to buy the land through the false representation as to the acreage, but we have a confirmation of this testimony-as to the supposed acreage by the recitals of the deed itself.
It is true the bank was not the grantor in the deed, but its agent was, and its liability for the misrepresentation as to the acreage rests upon elementary principles.
As to the defense that the plaintiff Carter bought the farm without express warranty as to acreage, and without reference to the exact acreage, we have to say, as was said by Mr. Justice Biddick in the case of Walker v. David, 68 Ark. 544, 60 S. W. 418, that in a deed conveying a certain number of acres “more or less,” the words “more or less” are precautionary, and are intended to cover slight or unimportant inaccuracies, but do not weaken or destroy the indications of quantity, when no other guide is furnished. Slight discrepancies may be ignored when there is no express warranty as to quantity.
The appellant bank insists that the sale was not made at a given price per acre, bnt at a fixed price for 620.41 acres, “more or less,” bnt, even so, the deficiency in the instant case is too great to be treated as immaterial. In the case of First National Bank of Belleville, Ill., v. Tate, 178 Ark. 1098, 13 S. W. (2d) 587, it was said: “Appellant calls attention to Harrell v. Hall, 19 Ark. 108, 68 Am. Dec. 202, and there are a number of other Arkansas cases to which attention might be called. In all of them, however, the words ‘more or less’ were used after the mention of the number of acres, and it is generally held that ‘more or less’ simply means approximately. And, if there is a very small discrepancy or insufficiency, that a statement of ‘more or less,’ or ‘estimated,’ will prevent the purchaser from recovering where the difference is trifling or small. But, even where the words ‘more or less,’ or ‘estimated,’ or ‘approximately’ are used, or either of them, if there is a very great discrepancy, the purchaser is entitled to recover.”
The court below found that the purchase price of the land which plaintiff Carter agreed to pay, including the cash payment, was approximately $25,000, and that there is a deficiency of 56. acres, for which credit should be allowed at $48.86 per acre, and that credit for this acreage, at that price per acre, should be applied on the principal indebtedness in the same manner as an advance payment upon the principal indebtedness. We concur in this finding, except that we are of opinion that the deficiency in acreage was greater than that found by the court below. We have before us the evidence of an engineer who twice surveyed the land and made a plat of each survey. The first survey was made in March, 1926, and, according to this survey, the farm then contained 511 acres. This survey was made before the flood of 1927, and the undisputed testimony shows that this flood occurred before the purchase of the land by plaintiff and had caused the caving of 56 acres of the land into the Arkansas River. This river forms one of the boundaries of the land, which is described as lying south of tliat stream. The court appears to have allowed credit only for the 56 acres which caved into the river in 1927; but there is equal reason for allowing for the shortage which previously existed.
There was testimony as to certain accretions which, it is claimed, equal the shortage shown to exist by the two surveys. There appears to have been an island in the river near the farm, but the testimony shows that the main channel of the river was originally south of the island, that is, between the island and the original farm. The original owner of the farm claimed no title to this island, but stated that he paid taxes on his original acreage under the expectation that the channel of the river would change and run north of the island and that the old river bed might fill up. This appears to have occurred, and there are certain accretions to this island which equal, in acreage, the shortage claimed, but the testimony does not show that the accretions were made to the farm itself. And there is still a channel of the river, except in very low water, between the farm and the island and the accretions.
The court below did not find, nor do we, that any account should be taken of the alleged accretions, as that land now constitutes no part of the farm.
. We conclude therefore that credit should be allowed both for the 56 acres of land lost through the caving banks prior to plaintiff’s purchase, and for the shortage previously existing, amounting, altogether, to 165 acres, at the proportionate price per acre, which appears to be $40.30 per acre, and the decree will be reversed and the cause remanded, with directions to allow this additional credit as in the nature of an advance payment upon the purchase money. | [
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Hart, J.
This was a suit begun in the Randolph Chancery Court in which the New England Securities Company and T. C. Alexander, as trustee, were plaintiffs, and Jas. G. Fry, W. T. Fry, Isabel Fry, U. S. Fry, Willie Fry, J. S. Fry and Fannie Fry, and the United States Fidelity and Guaranty Company and the American Bonding Company, as assignees of W. A. Cunningham, guardian, and the directors of the Raven-den Special School District and Lone Rock Bank of Ravenden, were defendants.
The complaint alleged that the defendants, James G. Fry, W. T. Fry, Isabel Fry, U. S. Fry and Willie Fry on the first day of March, 1909, executed a mortgage to certain lands in Randolph and Lawrence counties to the New England Securities Company for the purpose of securing said company in the sum of $7,000 and the accrued interest; that defendants had defaulted in the payment of said indebtedness and owed plaintiff the principal and the accrued interest.
The prayer of the complaint was for judgment for the amount of the debt and interest and for a foreclosure of the mortgage.
J. S. Fry filed a separate answer in which he admitted the execution of the deed of trust but set up a state of facts which he claimed entitled him to have the land in Lawrence county first sold for the payment of $2,615.90 of the indebtedness.
Appellants also filed an answer in which they admitted the execution of the mortgage and that the amount for which it was given to secure was due and unpaid, but set up a state of facts which they say entitles them to have the Randolph county land first sold for the payment of the indebtedness to the New England Securities Company. The facts relied on by appellee, Jas. G. Fry, and by appellants will be more particularly set out in the statement of facts.
The facts are practically undisputed and the material facts as found by the court are as follows:
On the first day of March, 1909, the defendants, Jas. G. Fry, W. T. Fry, Isabel Fry, IT. S. Fry and Willie Fry executed to the New England Securities Company their promissory note in the sum of $7,000 due on the first day of March, 1916, bearing interest from date until paid at the rate of 6% per annum. They executed a mortgage on certain real estate situated in Randolph and Lawrence counties in the State of Arkansas to secure said indebtedness. Default was made on the interest that became due on March 1, 1915, and under the terms of the mortgage the company was entitled to declare the whole indebtedness due, that on the date of the rendition of the decree herein said parties owed said Securities Company the sum of $8,004.25. On November 28, 1914, Jas. G. Fry, W. T. Fry, Isabel Fry, IT. S. Fry and Willie Fry executed a deed to the Randolph county land on which the New England Securities Company had the mortgage to J. S. Fry. The conveyance to J. S. Fry was made subject to the lien of the New England Securities Company. J. S. Fry undertook and bound himself to pay of this indebtedness the sum of $5,000 and interest thereon from March 1, 1915, which at the date of the decree aggregated the sum of $5,388.35. The grantors in the deed to J. S. Fry agreed that they would pay, and that the Lawrence county land should be liable as between them and J. S. Fry, to the payment of the remainder of said mortgage and indebtedness. J. S. Fry as part of the consideration on his part executed to James G. Fry and the other grantors a deed to certain lands in Lawrence county, including his homestead. As soon as the conveyance was made J. S. Fry moved from Lawrence county to Randolph county and took possession of the Randolph county lands and established his homestead on one hundred and sixty acres of them.
On April 4, 1913, W. A. Cunningham, as guardian, obtained judgment in the Lawrence Circuit Court for the Eastern District, against J. N. BeaHey, the United States Fidelity & Guaranty Co., and the American Bonding Company for the sum of $1,286.09. This judgment was duly transferred to W. E. Beloate and W. M. Ponder, as trustees for the said United States Fidelity & Guaranty Company and the American Bonding Company. On June 10, 1914, said judgment was stayed by a bond executed in conformity with the statutes by W. T. Fry, A. S. Fry and J. G. Fry and filed in the office of the circuit clerk of Lawrence county. The stay bond was conditioned for the payment of the judgment within six months from May 15, 1914. A copy of the stay bond was filed with the circuit clerk of Randolph county on December 16, 1914. The judgment which was stayed was not paid off.
The complaint in the present suit was filed on February 3, 1916. The answer of J. S. Fry was filed on the 7th day of March, 1916. The answer and cross-complaint of appellants was filed on April 17, 1916, more than three years after the rendition of the judgment in the circuit court in favor of Cunningham as guardian against BeaMey. and others. The court rendered judgment against Jas. G. Fry, W. T. Fry and U. S. Fry, for the sum of $8,004.25, in favor of the New England Securities Company and declared it to be a first lien on the lands embraced in the mortgage situated in both Lawrence and Randolph counties.
It was decreed that the mortgaged lands situated in Lawrence county be first sold for the payment of $2,615.90 as agreed between J. S. Fry and W. T. Fry and the others who executed the mortgage to the New England Securities Company and that the Randolph county lands be sold for the payment of the balance of said indebtedness not discharged by the sale of the Lawrence county land.
The cross-complaint of appellants was dismissed for want of equity.
The Ravenden Special School District filed a separate answer and cross-complaint in the case but subsequently took a nonsuit and that district is not concerned with the further proceedings in the case.
Appellants alone have prosecuted an appeal from the decree of the chancery court. The appellants base their right to relief under the stay bond. It will be remembered that Cunningham as guardian obtained a judgment in the circuit court of Lawrence county on April 4, 1913, against Beakley and others. The stay bond was filed on the 15th of May, 1914, and appellants claim that this had the effect of lengthening the time their judgment was a lien on the lands in Lawrence county.
(1-2) Under section 4438 of Kirby’s Digest a judgment is a lien on the real estate owned by the defendant in the county in which the judgment was rendered from the date of its rendition. Section 4439 provides that the lien authorized by the preceding sec tion shall continue in force for three years from the date of the judgment. We do not think the filing of a stay bond suspended the running of the three years limitation of the judgment lien. The stay bond “was filed on May 15, 1914, and the six months would expire long before the three years’ limitation of the judgment lien expired. We think the effect of the decision in Cook v. Martin, 75 Ark. 40, is to hold that the lien of the judgment is continued in the stay bond, and this lien relates back to the rendition of the judgment, so as to protect the judgment creditor against subsequent liens or conveyances by the judgment debtor. The stay of judgment for six months under section 3250 of Kirby’s Digest did not suspend the judgment lien under sections 4438 and 4439 of Kirby’s Digest. The judgment was a lien on all the land of the defendant in the county during the whole six months. The judgment was stayed by the filing of the bond under the statute and the judgment creditor, as we have already seen, could not have been in any wise prejudiced by the filing of the stay bond, for the reason that there was ample time within which to levy an execution and sell the defendant’s real estate under it after the six months had expired. If the stay bond had been filed at a period of time which would have extended beyond the date of the three years’ limitation of the judgment lien, the judgment creditor would have been entitled to a further reasonable time within which to have caused his execution to be issued and levied upon the real estate of the defendant in the county and sold thereunder. Not having been prejudiced by the filing of the stay bond in the present case, they are not entitled to an extension of the three years’ limitation provided by the statute. It follows then that they had no lien upon the mortgaged property at the time they filed their cross-complaint and the chancellor was correct in holding that their lien ' having expired before they became a party to the suit they were not in a position to ask for a marshaling of the securities and were not entitled to any relief in the action.
They did allege in the answer that J. S. Fry purchased the Lawrence county lands in fraud of their rights as creditors, but no attempt was made by them to establish this by proof. On the other hand J. S. Fry testified that he was a purchaser in good faith of the Randolph county lands for a valuable consideration and further stated that at the time he exchanged his Lawrence county lands for them he did not have any actual notice of the judgment rendered in the Lawrence Circuit Court under which appellants sought to assert their priority.
It follows that the decree of the chancellor was correct and will be affirmed. | [
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Kirby, J.,
(after stating the facts). Appellant insists that the chancery court was without jurisdiction to surcharge and falsify the reports and accounts of the collector already approved by the judge of the Miller •Circuit Court, which action, it is insisted, was conclusive and res judicata. The chancery court was not reviewing the decisión of the circuit court in determining the matter submitted by the pleadings herein, but only exercising its ancient inherent jurisdiction to set aside and falsify accounts for fraud or mistake. The chancery court has not been deprived of such jurisdiction, if it could be done, and the court had jurisdiction of the action as established by our decisions:
“Original jurisdiction of equity to correct mistakes was not divested by the statute granting to the county court the power to readjust the settlements of the collector at any time "within two years.” Big Gum Drainage District v. Crews, 158 Ark. 566, 250 S. W. 865. See also Gladys v. Lovewell, 95 Ark. 618, 130 S. W. 579. Chancery has jurisdiction, as is apparent from these and other Arkansas casesj not only to correct mistakes, hut also to correct fraud in settlements of county officers. In Sims v. Craig, 171 Ark. 492, 286 S. W. 867, chancery was held to be the proper forum for the surcharging of set tlements, the court holding that unintentional error and mistakes as well as fraud might be corrected within two years (under the statute) by the county court, and thereafter (but not exceeding 5 years) by the chancery court. See also Marable v. State, 175 Ark. 589, 2 S. W. (2d) 690; Marshall v. Holland, 168 Ark. 449, 270 S. W. 609. In Johnson County v. Bost, 139 Ark. 35, 213 S. W. 388, in a case where the county court had allowed as credits certain items which were claimed to have been fraudulent and illegal, it was insisted that the chancery court was without jurisdiction and its judgment was sought to be avoided because no sufficient showing of fraud had been made, but this court said: “There is however a modification of that rule with respect to the judgments of county courts in the allowance of claims against the county, and in the recent case of Monroe County v. Brown, 118 Ark. 524, 177 S. W. 40, we stated the law concerning the force and effect of judgments of county courts and the power to set them aside as follows: ‘The statute is not construed to mean that the county court is authorized to review former judgments of the court for mere errors in the allowance of claims, but they are authorized to reject claims [warrants] which have been illegally or fraudulently issued. In other words, where the claim against the county was one which, under any evidence which might have been adduced, could not have been a valid claim against the county, or where the judgment of allowance was obtained by fraud, it may be set aside and warrants issued pursuant thereto canceled.” There is nothing in the statute (§§ 4637-4642 of the Digest) giving final and conclusive effect to the action of the circuit judge in approving such statements of expenses by the officials nor depriving the chancery court of jurisdiction to surcharge and falsify same. Applying the analogous rule of decisions to the action of the circuit judge herein which prevails relative to the judgments of county courts on settlements by county officers, it is apparent that there is no rule of decisions or statute concluding either the county or the State, by the mere approval of the circuit judge, from proceeding in chancery to surcharge and falsify the accounts and settlements of such officers for fraud, mistake, etc. Sims v. Craig, supra.
The approval of the account or report by such circuit judge is rather a ministerial than a judicial act, and his determination of such matters is not res Judicata, nor is this proceeding an attempt to review the decision of a court of equal and coordinate jurisdiction.
The chancellor held that a fraud had been perpetrated upon the circuit judge in obtaining his approval of two items of the accounts or reports, one for $1,000 in 1929 report and one for $300 in the 1930 report, claimed to he paid by the appellant to his wife for services in the collector’s office. It is not claimed that Mrs. Yates had acted as a deputv, and there is no substantial proof tending to show she ever performed any work or service in the office of value to the countv. The testimonv is to the contrary. It appears that her work consisted in addins- up the amounts shown on the tax receipts issued bv the collector day bv dav in their home in the evening- and taking the ba.uk book and carrving fhe funds collected bv him during the dav to the bank. The testimony indicated that she did not work in the office and visited it rarelv. and never for the transaction of anv business. The charging of the amount paid to her in the report and asking approval thereof was a representation bv the officer, of course, that his wife had done work for the couutv during- the two years a,nd earned the monev which was a proper charare aa’ainst the countv. The Constitution provides (article 19. i 23) : “No officer of this State, uor of anv eountv. citv or town, shall receive, directlv or indirectlv. for salarv. fees and perauisites more than five thousand dollars net profits per annum in par funds, and anv and all sums in excess of this amount shall be naid into the State, countv, city or town treamrv as shall hereafter be directed by appropriate legislation.”
In Nixon v. Allen, 150 Ark. 244, 7 S. W. 35, it was held that a statute creating a board to fix salaries of county officials and the number of their clerks and employees was invalid, this court saying:
“The power to fix the salaries and fees of all officers in the State, and the number of their clerks and employees and their salaries, is a function which, within the limits of the Constitution, is lodged in the supreme law-making power of the State — the Legislature. Cain v. Woodruff County, 89 Ark. 456, [117 S. W. 768]; Humphry v. Sadler, 40 Ark. 100; Throop on Public Officers, § 500. The General Assembly cannot delegate this legislative power to any individual, officer or board.”
It is not contended that the wife of the collector, to whom the money was paid, was the deputy or authorized employee of the collector, and there was no such showing made that the work performed by her could not have been as well done ¡by the collector whose duty it was to do it, or his deputies, as would render the expense lawful which the collector represented it to be in making the claim for the credit for expenses of the administration of the office.
On the cross-appeal, the court erred in refusing to surcharge the 1929 settlement with the following items:
1929, Report, to David Elkins.....$250
1929 Report, to J. "W. Stuckey.... 250
1929 Report, to traveling expenses in making the rounds of the county with tax-books..... 500
and in the 1930 report with:
1930 Report, to David Elkins.$300
The law requires the collector to make the tour of the county with the tax books for the purpose of collecting the taxes in the different precincts, and nowhere indicates the payment of his necessary traveling expenses. No place visited by him for the collection of taxes was more than 40 miles distant from his office in the city, and only one that far, and could have been reached under modern methods of travel and the business of collection of taxes transacted with the return of the officers to the office in the same day. The expenses would necessarily not have been great, and it was the intention to permit or require the officials to pay some of their own personal expenses necessarily incurred in the performance of the duties, for which a salary of the net amount of $5,000 is provided by the Constitution. If an official desired to conserve time, he might make such tour in an airplane either purchased or hired for the purpose, but it could hardly be expected that he should charge the expense thereof as a necessary one of administration for which the county could be required to pay in addition to the $5,000 allowed as a salary for such collector. In other words, the Constitution permits only an allowance of $5,000 net salary to him per annum for the discharge of all his duties of the office, and expenditures for extra, unusal or emergency services to be paid out of the excess of fees over the $5,000 must ¡be shown to be lawful before any such allowance can be made; otherwise it must be done at his own expense. Crittenden County v. Crump, 25 Ark. 235; Cain v. Woodruff County, 89 Ark. 456, 117 S. W. 768. And the necessary deputies and employees for assisting him in the discharge of the duties of the office must ¡be authorized to be employees by law before they can be paid out of the excess fees collected over the amount of salary he is entitled to retain under the Constitution, $5,000, which otherwise must be paid into the county treasury in accordance with the law.
It follows from what has been said that the decree will be affirmed on the appeal, and reversed on the cross-appeal, and remanded with directions to enter a decree in accordance with this opinion.
Butler, J., dissents. | [
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Bunn, C. J.
This is a bill to foreclose a lien on defendant’s right of way extending through said improvement district, and the depot buildings and depot grounds situated therein, and to collect the amount of the district assessment made against said property? The answer puts in issue the passage of the ordinance organizing said district, and authorizing and making said assessment.
The defendant first contends that the plaintiff has the burden of proof to show that said ordinances were duly passed, and were published as the law directs.
Section 5341, Sand. & H. Dig., reads thus: “The board [on refusal of any property owner to pay his assessment] shall sti’aightway cause a complaint in equity to be filed in the court having jurisdiction of suits for the enforcement of liens upon real property, for the condemnation and sale of such delinquent property, for payment of said assessment, penalty and costs of suits, in which complaint it shall not be necessary to state more than the fact of the assessment and the non-payment thereof within the time required by law, without any further statement or any steps required to be taken by the council, or the board, or any other officer whatever, concluding with a prayer that the delinquent property be charged with the amount of such assessment, penalty and costs, and be condemned and sold for the payment thereof.” Section 5342: “It shall not be necessary to exhibit with the complaint any copy of any ordinance or other document or paper connected with the assessment and collection of the moneys assessed under this act.” Then follow the provisions for the enforcement of the assessment, all showing the in tention of the legislature to malee the procedure the simplest and most expeditious, consistent with the rights of the parties involved, and it is manifest that its intention was to make the few allegations of the complaint a prima facie case, that is, if not controverted in the pleading and by proof, to be sufficient to authorize the decree of condemnation and foreclosure.
But the defendant contends that the proceeding is under section 5336 of Sand. & H. Dig., and not under the general statute, as expressed in sections 5155 and 5157. Section 5336 has no reference to proof of publication, nor upon which party is the burden to show that the ordinance has been duly published. It only defines the duty of the clerk and of the one aggrieved by the assessment. Section 5157 provides for the recording and publication of all by-laws and ordinances of the council, imposing any fine, forfeiture or penalty, and makes no exception. It is a general ordinance on the subject. Section 5155 reads: “The printed copies of the by-laws and ordinances of any municipal corporation, published under its authority, and transcripts of any by-law, ordinance, or of any act or proceeding of any municipal corporation, recorded in any book or entered on any minutes or journal, kept under the direction of such municipal corporation, and certified by the clerk, shall be received in evidence for any purpose for which the original ordinances, books, minutes or journal would be received [and] with as much effect.” In construing these sections this court, in Van Buren v. Wells, 53 Ark. 377, after discussing other questions in the case, said: “The only remaining question is, was the burden on plaintiff to prove that the ordinances were published in the manner prescribed by the statutes? We think not. The statute makes printed copies of the ordinances of any city or incorporated towns, published by the authority of such city or town [and duly certified copies are in evidence in this ease], and manuscript copies of the same, copied by the proper officer and having the seal of the city or town attached, evidence of the existence of the ordinances and their contents, and makes a failure to publish a sufficient defense to any suit or prosecution for the fines or penalties imposed by the ordinances.” These sections furnish the rule in this ease, and the question of burden of proof is settled in the case cited, and’ rests upon the defendant.
The next contention of defendant is that the city of Siloam Springs and its officers were without power or authority of law to assess its said property for the purpose of local improvements, or to pass the ordinance attempting to create said improvement district, and that they were without power . or authority to make said improvements, or levy said taxes against this defendant railroad company, chartered and organized for that purpose.” This particular objection is not specifically made in the answer, and seems to involve two propositions: First, the power of the city to organize improvement district including all its territory, and second, whether or not the right of way of a railroad is the subject of an assessment for local improvements.
The first of this proposition has been answered by the opinion of this court in Crane v. Siloam Springs, 67 Ark. 34. As to whether or not the right of way of a railroad extended through or into an improvement district was intended by the lawmakers to be subject to these assessments is a question not altogether free from doubt, owing to the peculiar right a railroad has in the property and the peculiar use to which it is exclusively devoted. As to the manner of assessing rights of way, and, incidentally, as to the propriety of including rights of way in the list of property to be assessed, see Welty, Assessment, § 142, and extensive notes thereunder. The statute (and so does the constitution, art. 19, § 27) makes all real estate the subject of these assessments, and another statute makes all real estate, subject to general tax, to be also real estate, subject to these assessments (Sand. & H. Dig., § 5330), and the general revenue laws of the state (Sand. & H. Dig., § 6471) make rights of way, depot grounds, and so forth, real estate, and to be assessed as such.
. Prima facie, then, this class of property is subject to assessment; but, since all burdens of the kind are imposed only on the theory that the improvements for which they are laid are of corresponding benefit to the property itself, if it can be shown that no benefit can accrue, then the property is not subject; but, as the assessment itself by proper authority is prima facie valid, it necessarily devolves on one desiring relief from the burden to show that no benefits will accrue. This leads us to an understanding of the statement of Elliott, where he says in his. work on Railroads (§ 782): “It has been held that if the property against which an assessment has been levied has not been benefited [or may not be] by the improvement, the collection of the assessment may be enjoined, but this doctrine is tobe taken with careful qualification, for it is only in very clear cases that courts can interfere.” Such also is the theory of all the decisions we have been able to find on the subject. Even those which deny that a right of way is In general subject to local assessment, all in one way and another, and to one extent and another, qualify the doctrine maintained by them by saying, or indicating, at least, that when improvements do not benefit the property that fact is the real defense. Detroit, G. H. & M. R. Co. v. Grand Rapids, 28 L. R. A. 793, and citations in the dissenting opinion: Matter of Commissioner of Public Parks, 47 Hun (N. Y.) 302; Chicago, M. & S. P. R. Co. v. Milwaukee, 89 Wis. 506. And these are the strongest cases we are able to cite just now. In the case at bar, it would be assuming too much for us to say that the property assessed is not or will not be benefited naturally by the improvements made, in the absence of a stronger showing to that effect.
The procedure to assess and appraise the property seems to have been in substantial compliance with the statute. Under our revenue laws, railroad rights of way are valued as units, or by the entire lines, by the state board appointed for that purpose, and these appraisements are certified to the county assessors, through the auditor of state and county clerk, and he is required to make his assessment upon such valuation, and certify the same back on the record, from which local assessments are made.
The decree, so far, is affirmed. But there is no authority to sell a section of the right of way of a railroad, although a lien is declared thereon for the assessment. Elliot says (§791) that it is the general rule “that where the statute specially provides a remedy for the enforcement of the assessment, that remedy must be pursued, but if a right be given, and no remedy prescribed, the courts will usually provide the appropriate remedy.” Whether we term this assessment a debt against the railroad in personam, or only in rem against the particular property, it can only be collected against the railroad as a unit; that is, against the whole road within the state. In ordering otherwise, the chancellor was in error. The cause is therefore reversed and remanded, to proceed against the railroad company, as such, to enforce the assessment in equity. | [
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Battle, J.
This action was brought by the Eastern Arkansas Land Company against H. Gr. Logan to quiet title to certain lands described in its complaint. The claim to the lands against which it seeks to quiet its title is based upon a sale of the lands to the defendant in 1895 for the taxes of 1894. It claims that the sale was void, because the clerk of ■the county court failed to record the list of lands returned delinquent on account of the non-payment of the taxes of 1894, ■of which the lands in question were a part, and a notice that the same would be sold by the county collector, in a book kept for that purpose, before the day of sale, with a certificate, made by himself, at the foot of such record, stating in what newspaper said list was published, what length of time published, the date of publication, and the length of time the same was published before the second Monday in June then next ensuing. It is conceded that the certificate which the county clerk was required to make at the foot of such record was not made until after the day fixed for the sale. On account of the failure of the clerk to make such certificate in the manner and within the time stated, the circuit court held that the sale of ■the land in controversy to the defendant fof the taxes of 1894 was void, and quieted the title of the plaintiff against the same; and the defendant appealed.
The only question for our consideration in this case was decided in Martin v. Allard, 55 Ark. 218. In that case the question was, can the certificate which the law requires the clerk to make be superseded by the testimony of the publishers of the list of delinquent lands, showing that the notice of sale was published in the manner required by law. The court said: “The statute prescribes that the list of lands delinquent for non-payment of taxes shall be published for two weeks between certain specified dates, with a notice of the intent to sell them. Mansf.Dig. §5762. It requires the clerk of the county court to record the list and notice of sale in a book to be kept in his office for that purpose, with a certificate showing in what newspaper it was published, for what length of time, and the date of publication, lb. § 5763. The statute denominates this entry a record; it requires that it shallbe made by the clerk before the sale, and provides that it shall be evidence of the facts it recites. 16. § 5763. And the court further said: “But, conceding that the publisher’s testimony goes to the extent of proving that the notice of sale was published as the law requires, the question is whether it is competent to establish the fact in that way. * * * The identical question here presented arose in the circuit court of the United States for the eastern district of Arkansas in a suit by the appellant in this case to confirm a tax title depending upon the forfeiture now under consideration, where the same effort was made to supply the defect in the tax record by the testimony of the publishers of the newspapers. The circuit court rejected the testimony, and the ruling was affirmed on appeal to the Supreme Court of the United States, where it was said: ‘The provision (section 5763, Mansfield’s Digest) is a peremptory one, and it cannot be dispensed with, without invalidating the proceeding;’ that is, the tax sale. Martin v. Barbour, 140 U. S. 634; S. C. 34 Fed. Rep. 701. That conclusion follows from the authorities before cited. The appellant’s title therefore fails.” See also Taylor v. State, 65 Ark. 595.
The court, in effect, held in Martin v. Allard that the provision of the statute requiring the clerk to record the certificate before the day of sale was mandatory. If this ruling be cor rect, it must have been made upon the theory that the provision subserved some useful purpose. Can it do so? Under the statutes of this state, the least quantity of each tract of land delinquent is sold to the person who will pay the taxes, penalty and costs charged against the tract. If the certificate is made before the sale, persons desiring to purchase can ascertain whether the land has been advertised according to law; and, finding that the law has been complied with, would be encouraged to bid and purchase by paying the taxes, penalty and costs for less land than they would if there was no record evidence of a compliance with the statute. In this way it serves as a protection to the original owner of the land; and the failure to comply with it becomes a defense to him against the sale, of which he cannot be deprived by any deed of the county clerk to the purchaser at the tax sale, as held in Cooper v. Freeman Lumber Company, 61 Ark. 36.
While the rule established in Cooper v. Freeman Lumber Company, 61 Ark. 36, does not accord with the views of the writer of this opinion, it is binding upon him as a precedent until it shall be overruled. “Judges are not expected or required to overturn principles which have been considered and acted upon as correct, thereby disturbing contracts and property, and involving everything in inextricable confusion, simply because some abstract” rule of law has been incorrectly established in the outset.
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Hughes, J.
The petitioner, Timpson, was brought before the circuit judge of Lonoke county on a writ of habeas corpus, upon the statement in his petition that he was illegally restrained of his liberty.' The evidence in the case showed that Timpson had been convicted of unlawfully carrying a pistol, and had been fined $50, and, in default of the payment of the fine and costs, had been committed to the county contractor for prisoners for Lonoke county to be by him worked according to law for a period of time not to exceed one day for each 75 cents of said fine and costs, and that thereupon the prisoner was remanded to the custody of the sheriff, and afterwards delivered to the contractor for the county, said John M. Grade. The answer to the petition of the prisoner, by Grade the contractor and the prosecuting attorney, shows that the contract for the hiring of the prisoners of the county was made on the 27th of January,. 1900. Wherefore the petitioner’s counsel contends that the contract was unlawful, and that the county judge had no authority or power to make a contract for biring out the convicts, only before the second Monday of January; that, if not hired out before the second Monday of January, he could hire them out to a contractor afterwards. After hearing the case, the circuit judge remanded the prisoner to the contractor, and he appealed.
The petitioner relies upon act CXI of the Acts of 1899, approved April 12, 1899 (p. 179 of said acts), to support his contention. Section 2 of said act, relating to the matter under .consideration, is as follows: “That section 932 of Sandels & Hill’s Digest be amended so as to read as follows: “In the event that the county court or judge thereof shall order said prisoners to be worked on roads, bridges, levees or other county improvements, as provided in the preceding section, it shall be the duty of tho court or judge thereof to appoint some suitable person as superintendent; * * * and in case no contract as provided in sections 910 and 931 is made by the county court or judge prior to the second Monday of January of any year, then the said court or judge thereof must make the order as provided in section 931 for working the prisoners on the public roads, bridges, levees and other public improvements of the county.” Counsel for the petitioner contends this provision is imperative. If this be granted, it does not appear that the county court, or judge may not hire out the prisoners after he has made the order to work them on the public roads, bridges, levees and other public improvements of the county. Bids for the labor of convicts of Lonoke county had been invited, and there were no offers prior to the 2d Monday of January. No appropriation had been made to defray the necessary expenses of working the prisoners or convicts of the county upon the public improvements of the county, and, without an appropriation made at the proper time, they could not have been so worked. Section 4 of the act under consideration provides that “the county court at its annual meeting for making appropriations shall make the necessary appropriations to carry out the purposes of this act; provided, that no more than ten thousand dollars ($10,000) shall be appropriated for one year.” • In section 933 of Sandel’s & Hill’s Digest it is provided that “said ..superintendent (of prisoners to work on public improvernents), with the permission of the county court or judge thereof, may temporarily contract with any person or corporation for the labor of said prisoners,” etc. This shows that the prisoners, by contract in writing, may be hired out temporarily after the order of the county court to have them worked on roads and bridges shall have been made.
The object of all these statutes about hiring out to labor and working county prisoners on roads, bridges, etc., is to keep them from being burdensome to the county, and in this case we think the action of the county judge was legitimate and proper under the law.
Judgment affirmed.
Battle, J., dissents. | [
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Bunn, C. J.
On the 16th March, 1899, B. F. Latta, the marshal of the town of Marianna, Lee comity, Arkansas, made affidavit for a warrant of arrest against the defendant, in these words, to-wit: “To the best of my knowledge and belief, I hereby state that Louis Vincent did, in the town of Marianna on the 16th day of March, 1899, sell to King Crawford a bottle of whiskey, and pray a warrant for his arrest.” On this affidavit the mayor of said city issued the following warrant, to-wit: “To B. F. Latta, Marshal: ‘It appearing that there are reasonable grounds for believing that Louis Vincent has committed the offense of selling whiskey in the town of Marianna without license, you are therefore commanded to arrest Louis Vincent and bring him forthwith before me, to be dealt with according to law.’ ” In obedience to this warrant, the marshal arrested and brought the defendant before the mayor for trial, and the following recital appears as part of the proceedings of the mayor’s court, to-wit: “On this the 16th day of March, 1899, comes B. F. Latta, marshal of the town, having in his custody the defendant, Louis Vincent, who having been arrested on a warrant of arrest charging him with the offense of unlawfully selling whiskey in the town of Marianna on the 16th day of March, 1899, in violation of a town ordinance. And the defendant announces ready for trial, and pleads not guilty as charged. And the court, after hearing the evidence, finds the defendant guilty, and fixes his punishment at a fine of one hundred dollars. It is therefore ordered and adjudged that the incorporated town of Marianna have and recover of the defendant, Louis Vincent, said sum of one hundred dollars, and all costs of this prosecution.” Then follows the alternative judgment of punishment rendered in such cases.
The defendant appealed to the circuit court, where, after one or two new trials, on motion of defendant, the cause was dismissed for want of jurisdiction, in this, that “the mayor’s court of the town of Marianna had no jurisdiction of the offense of selling whiskey without license, as charged in the affidavit and warrant, and that this court had no jurisdiction on appeal.” Upon this motion the circuit court rendered the following judgment, to-wit: “And said motion being presented, and it appearing to the court that the town of Marianna had no lawful power or authority to adopt or enforce the ordinances upon which this prosecution is based, said motion is by the court sustained. It is therefore by the court considered, ordered and adjudged that the defendant be discharged, and go hence without day.” The town of Marianna at the time, by its attorney, excepted, and appealed to this court.
Much of the discussion is devoted to the inquiry as to whether the town council by ordinance could do more than “license, regulate, tax or suppress tippling houses and dramshops,” as provided in section 5152, Sand. & H. Dig.; the defendant contending that a town council, under the rule laid down by this court in construing that section of the digest, in Tuck v. Town of Waldron, 31 Ark. 462, Town of Magnolia v. Sharman, 46 Ark. 358, and other cases, has no authority to pass an ordinance to deal with the liquor question, further than to license, regulate, tax and suppress tippling houses and dramshops as provided in said section, which is section 12 of the act of municipal incorporation, passed March 9, 1875. In the case of Tuck v. Town of Waldron, this court said: “Under this rule [stated by Judge Dillon], the council of Waldron had no power to pass the ordinance for the violation of which appellant was convicted.” The ordinance prohibited one from selling ardent or vinous liquors without first procuring a license. The rule as stated by Judge Dillon is: “When there are both special and general provisions, the power to pass by-laws under the special or express grant can only be exercised in the cases, and to the extent, as respects those matters, allowed by the charter or incorporating act; and the power to pass by-laws under the general clause, does not enlarge or annul the power conferred by the special provision in relation to their various subject matters, but gives authority to pass by-laws, reasonable in their character, upon all other matters within the scope of their municipal authority, and not repugnant to the constitution and general laws of the state.” The conclusion of this court on the subject was thus expressed in that case. “It (the town council of Waldron) undertook to prohibit the sale of ardent or vinous liquors in any quantities, and by any person, without corporation license; when the act under which the town was incorporated only authorizes the council to license, regulate, tax, or suppress tippling houses and dramshops, and to regulate or to prohibit ale and porter shops or houses and public places of habitual resort for tippling and intemperance. If the legislature intended to authorize municipal corporations to require all persons who wish to engage in selling wine and liquors, in any quantities, within their corporate limits to obtain corporation license, the intention should, and probably would, have been expressed in the act, and not left to inference. Municipal corporations must confine their legislation within the scope of the powers conferred upon them by their charters.”
This was the doctrine of Town of Magnolia v. Sharman also, and it apparently sustains the contention of the defendant in this case, with this explanation, however: The alleged ordinance is not found in this record, and is not mentioned, except by way of recital in the judgment of the mayor’s court and in the judgment of dismissal of the circuit court; and we therefore are not at liberty to say what is its purport, and can only speak of it in general terms, for the purposes of this discussion. On the other hand, it is contended by the prosecution that the decisions of this court cited above do not preclude the adoption of an ordinance on the subject, under the provisions of section 5146 of Sand. & H. Digest. Be this as it may, the question in this case is, did the mayor of Marianna have jurisdiction to hear and determine the case? The affidavit for the warrant and the warrant itself, taken together, determined the jurisdiction of the mayor, not what he or the circuit court said in the rendition of these respective judgments. There is no mention of an ordinance, nor reference to one, in the affidavit nor warrant. The crime alleged in them was, at all events, a violation of the state law; that is, a violation of section 4862 of Sandels & Hill’s Digest. The mayor of a town has the same jurisdiction to hear and determine cases under the criminal laws of the state as has a justice of the peace. See section 5256 of Sandels & Hill’s Digest.
The mayor having once obtained jurisdiction, the case should not have been subsequently dismissed for want of jurisdiction by the circuit court, merely on mistakes of law made by the mayor, or for any other irregularity; but it should have proceeded to try the case de novo, and render such judgment as was proper therein. The judgment of dismissal is therefore reversed, and the cause is remanded for further proceedings not inconsistent herewith.
Battle, J., absent. | [
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McCulloch, C. J.
The plaintiff, P. H. Dickerson, instituted this action in the chancery court of Crawford County, seeking to have the court declare a resulting trust in his favor in a quarter-section of land in that county, the title to which was then held by J. C. Davis, who was the sole, defendant at the time the suit was originally instituted. The land in controversy was originally owned by Fred "Wassmer and his wife, Elizabeth, who conveyed the same on July 13, 1914, to W. M. James. James conveyed the land to defendant, J. C. Davis, by deed, executed November 14, 1914, reciting a consideration of $4,000, paid in cash, and the action against Davis was instituted by plaintiff on Jánuary 12,1915. Lis pen-dens notice was properly filed and recorded in the office of the recorder of that county in accordance . with the terms of the statute. Kirby’s Digest, § 5149, et seq.
The basis of plaintiff’s claim of a resulting trust in his favor is that he furnished the consideration for the deed from the Wassmers to James pursuant to an agreement with James that he was to hold the title as,, trustee, and that James subsequently conveyed the land to Davis in violation of his trust, of which Davis is alleged to have had notice. The facts upon which plaintiff claims the right to have a trust declared need not be discussed for the reason that the case is to be disposed of on other grounds.
On November 1,1915, the chancery court entered an order dismissing plaintiff’s action against Davis for want of prosecution, but four days later, during, the same term, the court entered the following order:
“The order of dismissal herein rendered on November 1, 1915, is modified so as to reserve jurisdiction herein to determine what equities Fred Wassmer and Elizabeth have herein as against plaintiff Dickerson and defendant J. 0. Davis. A restraining order is directed to issue restraining Dickerson and Davis from conveying or encumbering the land herein until further orders of court.”
The Wassmers had not been named in the complaint as parties to the suit, nor does the record show how they were brought in, except that an answer filed by them referred to the fact that they had been brought in by order of the court, and the answer disclaimed any interest in the litigation and asked to be discharged. On May 1, 1916, during a subsequent term of court plaintiff filed his motion to reinstate the cause and to make A. N. Cherry, who had in the meantime become the purchaser of the property from Davis, a party defendant; and .on May 15,1916, the motion was granted and an order was entered reinstating the cause and making Cherry a party. Cherry appeared and filed his answer on June 12, 1916, denying the allegations of the original complaint concerning the facts upon which the trust was sought to be declared, and setting up the fact that subsequent’to the dismissal of the original action he had purchased the property in controversy from Davis without notice of any of the rights of the plaintiff and paid Davis a valuable consideration for the conveyance. The cause was heard by the court on oral evidence reduced to writing and made a part of the record, and the court rendered a decree in plaintiff’s favor in accordance with the prayer of the complaint. Defendants Cherry and' Davis have prosecuted an appeal to this court.
The evidence in the case shows that defendant Cherry purchased the land from Davis and paid a valuable consideration without actual notice-of the pendency of the former action, and without actual notice of, or in-, formation concerning the claim of the plaintiff. His own testimony establishes that fact, and little, if any, effort was made by the plaintiff to show actual notice on the part of Cherry. Therefore, the only question involved on this appeal is whether or not the lis pendens notice filed during the former pendency of the action operated as constructive notice to Cherry, the subsequent purchaser, so as to bar his claim as an innocent purchaser.
(1) The order of the court entered November 1, 1915, dismissing the action for want of prosecution brought the action to an end, and the subsequent order during the term did not operate as a reinstatement. Notwithstanding that it modified the order of dismissal ‘ ‘ so as to reserve jurisdiction herein to determine what equities Fred Wassmer and Elizabeth have herein as against plaintiff Dickerson and defendant J. C. Davis,” there is, as before stated, nothing to show that the Wassmers had been properly made parties, but their answer shows that they disclaimed any interest in the litigation, and, without discussing the propriety of the court’s order in holding the litigants in court fc>r the purpose of determining the unasserted rights of the Wassmers, the order certainly did not have the effect of keeping the action alive so far as it related to the controversy between the plaintiff Dickerson and the defendant J. C. Davis. The order of reinstatement at a subsequent term of court operated merely as a commencement of a new action so far as Cherry was concerned. The former action having been completely ended, Cherry was not bound by any order of reinstatement unless he was brought in by process of the court.
(2) This brings us to a consideration of the effect upon Cherry of the Us pendens notice of the former action. The common law rule as to Us pendens was established to prevent alienation of property, and, while the pendency of the action was held as operative notice, that fact was not the basis of the rule.
“It is a misconception of the rule for the protection of suitors against pendente Ute alienations of the property sued for,” said the Kentucky court in the case of Watson v. Wilson, 2 Dana 407, “to suppose that it rests upon the principle, or upon any analogy to the principle, which protects the'holder of an equity against the purchaser of the legal estate with notice. It is frequently said in the books that Us pendens is notice; but that is a loose mode of expression, not warranted by the reason or spirit of the rule.”
An illuminating exposition of the .rule is found in the case of Newman v. Chapman, 2 Randolph 402, cited by the Virginia Court of Appeals, where the law on the subject was stated as follows:
“The rule, as to the effect of lis pendens, is founded on the necessity of such rule, to give effect to the proceedings of a court of justice. Without it, every judgment and decree for specific property might be rendered abortive by successive alienations. This necessity is so obvious, that there is no occasion to resort to the presumption of notice of the pendency of the suit, to justify the rule. * * * This principle, however necessary, was harsh in its effects on purchasers, and was confined in its operation to the extent of the policy upon which it was founded; that is, to the giving full effect to the judgment or decree which might be rendered in the suit pending at the time of purchase. As a proof of this, if the suit was not prosecuted with effect, as if a suit at law was discontinued, or a suit in chancery dismissed for want of prosecution, or for any other cause not upon the merits, although the plaintiff might bring a new suit for the same cause, he must make him who purchased during the pendency of the former suit a party; and in this suit the purchaser would not be at all affected by the pendency of the former suit at the time of his purchase. If a lis pendens was notice, then it should bind the purchaser, like actual notice in any subsequent suit prosecuted for the same cause; but this it does not. English judges and writers have carelessly called it notice, because in the one single case of the suit prosecuted to judgment or decree it had the same effect upon the interest of a purchaser as notice had, though for a different reason. But the courts have not in any case given it the real effect of notice.”
(3) The authorities are practically in accord in holding that after the dismissal or abandonment of an action, without express reservation, the Us pendens does not continue as constructive notice so as to affect the rights of parties intervening between the dismissal or abandonment and the reinstatement or commencement of the action anew. 25 Cyc. 1470; Hord v. Marshall, 5 Dana (Ky.) 495; Newman v. Chapman, supra; Whitfield v. Riddle, 78 Ala. 99; Davis v. Hall, 90 Mo. 659; Pipe v. Jordan, 22 Col. 392; Herrington v. McCollum, 73 Ill. 476; Ludlow v. Kidd, 3 Ohio 541. The statute of this State on the subject of lis pendens notice is but declaratory of the common law, restricted to written notice of the pendency of the action which must be filed with the recorder of deeds. Jones v. Ainell, 123 Ark. 532.
It follows, therefore, that the court erred in enforcing a trust in favor of the plaintiff against defendant Cherry, who was an innocent purchaser of the property for value and without notice, either actual or constructive. of the alleged rights of the plaintiff.
The decree is reversed and the cause remanded wdth directions to dismiss the complaint for want of equity. | [
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Riddick, J.,
(after stating the facts.) We are of the opinion that the judgment of the chancellor was right. Stephenson was in possession of land which was claimed in an action against him by the widow and heirs of Roman. The plaintiffs recovei’ed, except the widow. As to her, Stephenson had a valid defense, and defeated her claim to the land. It is immaterial that, in order to avail himself of that defense, the ease had to be transferred to the equity docket, or that this dower interest which he had successfully defended was, on his petition, filed in the same action, assigned, and set apart to him. This was, in effect, only a partition of the land between him and the other plaintiffs, and in this state an attorney acquires no lien on land by obtaining a partition thereof. Gibson v. Buckner, 65 Ark. 84.
Stephenson, as before stated, was in possession of all the land at the commencement of the action, and the facts show that he recovered nothing by the litigation, but only succeeded in maintaining his right to a small portion of that which he already held. Under former decisions of this court his attorney held no lien on the land set apart to him. Hershy v. DuVal, 47 Ark. 86; Gibson v. Buckner, 65 Ark. 84.
Judgment affirmed.
Bunn, C. J., dissents. | [
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Bunn, C. J.
Joseph M. Johnson, a citizen of Lee county, died on the 28th day of July, 1887, the owner of a plantation in said county and a small amount of personal property, all of which last was absorbed in the course of the administration of his estate. He made his last will and testament on the 27th day of September, 1886, and after his death this, was duly probated. This suit was brought by the grandchildren of the testator, who are named as beneficiaries in the will, to have the same construed, and to set aside as invalid a certain deed of trust made by their parents, wherein the plantation was conveyed, and for general relief.
The parts of the will involved in this discussion are as follows, viz.: “(2) I want M. J. Johnson, my faithful friend and sister-in-law, to have and be supported out of my effects so long as she shall live, should she not otherwise have a sirfflcient support. (3) I waut half of all the property that I now own or may own at my death to be set apart for the benefit of the heirs of my son, Samuel H. Johnson. My son, Samuel H. Johnson, can have and control said property during his natural life, but said property shall not be subject to the debts of Samuel H. Johnson. If at his death his wife shall be living, she can control the property as long as she remains the widow of Samuel H. Johnson. (4) I want the remaining half of my property at my death to be set apart for the benefit of the heirs of Edna Gibson. I want S. A. Gibson, the husband of my daughter, Edna Gibson, to hold and control said property as long as he remains her husband, but said property shall not be subject to or be taken for his debts. Now, if my daughter should die, and her husband, S. A. Gibson, should marry again, then said property shall be taken charge of by the executors of this will, and used for the benefit of the heirs of Edna Gibson. (5) I want the executors of this will (before my estate is divided) to pay John M. Johnson, B. F. Johnson and Nannie J. Sapp the sum of one hundred dollars each. (6) I leave my dutiful son, Samuel H. Johnson, and my beloved nephew, John M. Johnson, and my son-in-law, S. A. Gibson, executors of my will.”
It is suggested in argument that the very language of this will shows that its author was an ignorant or unlearned person, and this is true, bur it bears no internal evidence of a want of common sense. It is, at all events, sufficiently explicit, we think, as an expression of his will, to show the real intention and wishes of the testator. After the death of the testator the property remained undivided, both as between the two sets of grandchildren, per stirpes, and also as between these grandchildren individually, in respect to each half, and remained in the control and management of Samuel H. Johnson and S. A. Gibson, until taken possession of by the receiver appointed by the court in this case.
Samuel H. Johnson had six children, viz.: Virginia V., born January 31, 1881, died November 20, 1896; Nannie, born September 29, 1882, died June 18, 1896; Joseph L., born April 1, 1879; George W., born May -30, 1884; Ada Belle, born March 26, 1889; and Edward, born October 19, 1893. The last four still live. The first two died without issue, unmarried and intestate, and after the death of the testator, leaving their father, the said Samuel H. Johnson, surviving them as their sole heir at 'law. Ada Belle and Edward were born after the death of the testator. Joseph L. and George W. are therefore the only ones of the children of said Samuel H. Johnson, who were born prior to the death of the testator and still survive.
Mrs. Edna Gibson, sometimes called Curmiller Gibson, had two children only, both still living when this cause was determined in the lower court, and both born prior to the death of the testator, by name Joseph and Fannie Gibson. Acting, apparently, upon the belief that they held the fee in the respective halves set apart to their children by the will, Samuel H. Johnson and Mrs. Edna Gibson (the wife of the former and the husband of the latter joining with them) borrowed the sum of $3,000 of the Globe Investment Company, and to secure the same gave a deed of trust on said plantation, and this debt and deed of trust subsequently became the property of the appellants, Wyman et al., the Globe Investment Company claiming to have had no notice of any defect in the title of said grantors in the deed of trust, and Samuel H. Johnson and S. A. Gibson continuing in possession. These, as mortgagors, paid'the in terest on said secured debt, as it accrued, until tbe institution of this suit.
There was a mortgage debt on the plantation, made by the testator in his lifetime, which amounted to the sum 'of $431, when this $3,000 was borrowed, and by agreement of the parties this mortgage debt was settled out of the $3,000 by the Globe Investment Company at the time of making the loan. Nothing was ever paid on this $3,000 by the debtors, or any one for them, either to the Globe Investment Company, or its assigns, except the interest aforesaid. This is a bill filed in behalf of the said children of Samuel H. Johuson and Edna Gibson, then surviving, on March 18, 1896, by their next friend, John M. Johnson, who was the active executor of the will, and nephew of the testator; the administration, however, having been closed, as we infer.
The main question involved is as to the estate of these grandchildren and their parents, given by the third and fourth clauses or paragraphs of the will of Joseph M'. Johnson, which are set forth above. For several reasons we are of opinion that the rule in Shelley’s case does not apply in the construction of these clauses of the will.
In the first place, we must assume, from the context and surroundings, that the testator did not intend to make any distinction between his own children, and, that being the case, the language of the fourth clause itself does not in any sense give an estate to Mrs. Edna Gibson, the daughter. Consequently the testator did not intend to confer any estate upon the son, Samuel EL Johnson, notwithstanding the language used in his case was somewhat different from that used in the case of the daughter. It is manifest that only a control and management was conferred upon Samuel EL Johnson, the son, as was conferred upon his wife in case of her death, and upon S. A. Gibson, the son- in-law, and, in case of his death or marriage to another after the death of Edna, then upon the executors.
Secondly, these bequests are in terms made directly to the grandchildren of the testator, no intermediate estate being created; and the management and control were the subject of clauses following these direct bequests,, showing that the management and control of the two halves until the grandchildren should he old enough to assume the same, although not expressed in words, was all that was intended to be conferred upon the son and daughter. The whole was devised for the benefit of the grandchildren in express terms, and no others are referred to as beneficiaries.
The estate of these grandchildren is therefore an independent estate, not resting or based upon any estate in their parents, Samuel H. Johnson and Edna Gibson, and, that being so, the rule in Shelley’s case is not applicable. It follows that no estate was conveyed in the deed of trust, except as to the interest of the two children of Samuel H. Johnson, who were living at the death of the testator, but who died without issue before the institution of this suit. Their shares were vested on the death of the testator, and at their deaths respectively fell to their father, the said Samuel H. Johnson, who therefore could lawfully convey the same in his said deed of trust. This interest constitutes one-half of the one-half, or one-fourth of the whole property devised by Joseph M. Johnson, subject to the payment of his debts and special legacies.
Thisiuterest o£ Samuel H. Johnson is therefore bound under his deed of trust for said mortgage debt. The interest paid on said $3,000 debt by Samuel H. Johnson and Edna Gibson is a valid payment as against them, and stands good, as there is no proof here that the interest payment was out of the fund belonging to the estate. The appellants are entitled to be subrogated to the rights of the mortgagee in the mortgage made by the testator, to the extent of the $431 paid to satisfy the same out of the $3,000 loan, and the interest therein specified in said first mortgage.
There is no direct or express provision in the will for the after-born children of Samuel H. Johnson and Edna Gibson, and, as the estates of the other grandchildren vest immediately on the death of the testator, it is to the exclusion of all others than those provided for expressly, or in terms that admit of no reasonable doubt on the subject. In this respect, the principle of the decision in Kilgore v. Kilgore, 26 N. E. Rep. 56, is not applicable ; for enough was said in the will involved in that case to show the [intention of the testator to be to’provide for his grandchildren born after his death. No words of the kind are employed in the will now under consideration. Hence the rule announced in Shotts v. Poe, 47 Md. 513, pertains, in which the court said: “The only-other question is, whether the term‘children’used in the declaration of trust includes children of the son that may be born after the death of the testator? And upon this question there can be no doubt whatever. If there beany question that maybe regarded as incontrovertibly settled, in the construction of wills or testamentary papers, it is that an immediate gift to children, simpliciter, without additional description, means a gift to the children in existence at the death of the testator, provided there be children then in existence to take.”
In construing the will to get at the real "intention of the testator, we have concluded that the testator used the word “heirs” as descriptive of a class of beneficiaries, and in the sense of the word “children,” the two being used synonymously by those unlearned in the law, for the most part. This being true, the case of Shotts v. Poe, supra, seems to be exactly in point, and, as there were others at the death of the testator capable of taking, and no provision was made for after-born children, these are excluded. The testator may have intended otherwise, but we are construing the will and endeavoring to arrive at his intention by its language, and cannot assume to make a will for him to express his merely probable intentions.
Except as herein indicated, the decree of the chancellor is affirmed, and, since the subject-matter of the suit is real estate, the cause is i'emanded, with directions to enter a decree not inconsistent with, but in conformity to, this opinion. | [
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McCulloch, C. J.
Appellant was convicted under an indictment for grand larceny, charging him with having stolen 1,100 pounds of seed cotton, of the value of $40, the property of H. Whitefield and W. L. Jeffries. The evidence tends to show that Whitefield was a tenant of Jeffries on the latter's plantation in Monroe County, and that the crop was mortgaged to Jeffries to secure the rent and also a debt for supplies. Whitefield had turned the crop over to the agent of Jeffries, who weighed up the cotton in a pen on the farm, from which the evidence tends to show it was stolen.
It is contended that there was a variance between the allegations and the proof as to ownership. The rule established by our decisions as well as by other authorities is that in indictments for larceny the allegation as io ownership is material and must be proved as alleged. Merritt v. State, 73 Ark. 34. The proof in this case showed that the cotton was in the actual custody of Hogan, the agent of the mortgagee, Jeffries. The special ownership could therefore have been laid in him, and it would have been sufficient to sustain the indictment,_ but the general ownership could also have been alleged and proved, and it was sufficient to do so. Rapalje on Larceny and Kindred Offenses, § 92. The agent of the mortgagee was also the agent of the mortgagor for the purpose of disposing of the property; and as both had an interest in the property, and it was in the possession of the agent of both, it was sufficient to allege a joint ownership by them.
It is claimed that the cotton was stolen from the pen in' the field, and the evidence is sufficient to warrant a finding that it was stolen one night after it had been weighed up by Hogan. Wagon tracks were traced from the pen, through the field and woods, and signs of cotton on the limbs of trees and bushes were seen along the route of the wagon through the woods. The wagon was traced from the cotton pen to the house of one Will Chestnut, where it appeared to have stopped, and then passed on. Will Chestnut’s wife, Callie, testified that that night appellant and his wife drove up to the house on a wagon load of seed cotton, and inquired about getting out of the gate. Will Chestnut testified that the next day he met appellant at a certain store, and that the latter told him that he had passed the house the night before with some cotton, and asked witness not to say anything about it.
Appellant introduced a number of witnesses tending to show that he attended a party or dance at a house several miles distant, and could not have taken the load of cotton away from the pen that night. These witnesses, if believed, established a complete alibi for appellant. The court, over appellant’s objection, gave the following instruction:
“You are instructed that the defendants .rely upon an alibi, which is a valid defense to the crime charged; but you are further instructed that the burden of proving such alibi is upon the defendants, and, unless you find from the evidence that the defendants have established such alibi, you will find the defendants, or either of them, guilty.”
The court also gave, at the request of appellant, the following instruction:
“The jury are instructed that the burden of showing an alibi is on the defendant, which can be shown by a preponderance of the evidence; but if, upon the whole case, the testimony raises a reasonable doubt that the defendant was present when the crime was committed, he should be acquitted, that is to say, in arriving at a conclusion as to whether the defendant committed the crime or not, they can only take into consideration all the testimony that has been introduced to the jury upon the question of an alibi with all the other testimony in the case, in arriving at the fact as to whether there was a reasonable doubt that the defendant committed the crime or not.”
The instruction on this subject, given by the court over appellant’s objection, was not a correct statement of the law. Blankenship v. State, 55 Ark. 244; Ware v. State, 59 Ark. 379. It was directly in conflict with the other instructions given at the instance of appellant, and the two can not be read together in harmony. . It has often been said that the whole law can not be stated in one instruction, and it is necessary, generally, to set forth different phases of a case in separate instructions. However, where instructions are irreconcilably in conflict, they can not be read together, and are calculated to mislead the jury. St. Louis, I. M. & S. Ry. Co. v. Rogers, 93 Ark. 564. Such is the case here. One of the instructions told the jury that, unless they found from the evidence that the appellant had established an alibi, it was their duty to convict h'm. The other stated that if the proof on that subject was sufficient to raise in the mind of the jury a reasonable doubt as to guilt, then it was their duty to acquit. The two instructions can not be harmonized, and the giving of both left the jury the choice of following either as they saw fit. There was a sharp conflict in the testimony, and appellant had the right to have his case submitted to the jury upon correct instructions. On account of this error the judgment is reversed, and the cause remanded for a new trial. | [
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Lee Seamster, Chief Justice.
In each of these cases, the appellants were found guilty in Pulaski Circuit Court on each of two counts of an information filed by the Prosecuting Attorney of Pulaski County, Arkansas, on behalf of the State of Arkansas. The separate informations charged appellants with violating the provisions of Act 124 of 1939, as amended (Ark. Stats. 1947, §§ 71-701 to 71-721) in that each of the appellants, without authority from the Contractors Licensing Board, (1) submitted a hid to the United States for the construction of certain facilities at a cost in excess of $20,000 on property owned, or leased, by the United States in Arkansas and (2) thereafter executed a contract to do said construction and entered into the performance of the contract. In each case, appellants were assessed a fine in the sum of $100 on each of the two counts of the information.
The contract with appellant, Engineering Construction Corporation, is for construction of an Air National Guard installation in Sebastian County, Arkansas, on property leased from the City of Fort Smith for that purpose. The other appellants, Ramsey and Leftwich, Tecon Corporation and Leslie Miller, Inc., have contracts for construction of facilities at the Air Force Base in Pulaski County, Arkansas. All of the above contracts greatly exceed the statutory minimum of $20,000. It is agreed that the lands on which the facilities are being constructed were purchased or leased, by the United States with the consent of the State of Arkansas but that the United States Government has not accepted jurisdiction over the lands as provided in 40 U. S. C. A. 255.
In each of the instant cases, appellants expressly deny that Act 124 of 1939, as amended, is applicable to its activities in placing the aforesaid bids, procuring the contracts, and performing work thereunder. The appellants contend that the stipulation in each of the cases shows that the lands upon which the contract is to be performed for the agency of the United States Government are either owned or leased by the United States or its agency for one of the purposes mentioned in Article 1, § 8, Paragraph 17, of the United States Constitution and the State by the provisions of § 10-1101 of the Arkansas Statutes, Anno., has consented to the acquisition by the United States of these lands, and has relinquished jurisdiction of the lands. The appellants rely upon the case of Lynch v. Hammock, 204 Ark. 911, 165 S. W. 2d 369, in which this Court stated: “We think it clear, under the above authorities, that the laws, supra, affecting the practice of medicine and surgery in Arkansas do not control and cannot apply to the rights of Dr. Lynch to practice on property, the jurisdiction over which has been surrendered to the United States, and the title to which property has been acquired by the United States by purchase.”
There is nothing in this opinion to indicate that 40 U. S. C. A. 255 was called to this Court’s attention at that time or that the statute was considered. On the other hand it is quite apparent that this Court, in deciding the Lynch case considered only two things: (1) had jurisdiction over the lands in question been surrendered by the State to the United States; and (2) had title to the property been acquired by the United States.
40 U. S. C. A. 255 provides in part as follows: “Notwithstanding any other provision of law, the obtaining of exclusive jurisdiction in the United States over lands or interests therein which have been or shall hereafter be acquired by it shall not be required; but the head or other authorized officer of any department or independent establishment or agency of the Government may, in such cases and at such times as he may deem desirable, accept or secure from the State in which any lands or interests therein under his immediate jurisdiction, custody, or control are situated, consent to or cession of such jurisdiction, exclusive or partial, not theretofore obtained, over any such ]ands or interests as he may deem desirable and indicate acceptance of such jurisdiction on behalf of the United States by filing a notice of such acceptance with the Governor of such State or in such other manner as may be prescribed by the laws of the State where such lands are situated. Unless and until the United States has accepted jurisdiction over lands hereafter to be acquired as aforesaid, it shall be conclusively presumed that no such jurisdiction has been accepted.”
In the case of Adams v. United States, 319 U. S. 312, 63 S. Ct. 1122, 87 L. Ed. 1421, the U. S. Supreme Court stated: ‘ ‘ Since the Government had not given the notice required by the 1940 Act, it clearly did not have either exclusive or partial jurisdiction over the camp area. . . . Since the Government had not accepted jurisdiction in the manner required by the Act, the Federal Court had no juiisdiction of this proceeding. In this view it is immaterial that Louisiana statutes authorize the Government to take jurisdiction, since at the critical time the jurisdiction had not been taken.” The opinion in the Lynch case was delivered on November 9, 1942. The Adams case was decided on May 24, 1943.
There can be no argument to the well settled principle that state sovereignty is complete except as clearly abdicated to the Federal Government by the Federal Constitution or by legislative act of cession. Therefore, state sovereignty is presumed in the absence of clear and explicit constitutional or legislative enactment to the contrary.
The appellants next contend that Ark. Stats., §§ 71-701 to 71-721, directly interferes with the performance of federal functions and cannot, therefore, under the doctrine of implied inter-governmental immunity, con stitutionally apply to appellants’ activities herein. It is contended that the enforcement of the provisions of'the Act is in contravention of the sovereign power of the United States, as Article 4, § 3, Clause 2, of the Constitution of the United States expressly grants to Congress the power to make all needful rules and regulations respecting property belonging to the United States.
The facts in these cases clearly show that the appellants are independent contractors. The fact that each appellant had a contract, in excess of $20,000, with the United States to construct buildings on United States Government property does not grant to them immunity from the State’s law (Ark. Stats., §§ 71-701 to 71-721) which requires contractors to procure a contractor’s license before they can legally bid, contract or perform work on a contract, in Arkansas.
The United States Government is not a party to this suit, nor are the appellants herein, agents or representatives of the United States Government. An independent contractor is not clothed with governmental immunity solely because of his contractual relationship with the Federal Government. A tax imposed upon an independent contractor is not laid upon a government instrumentality. Ernest K. James v. Dravo Contracting Co., 302 U. S. 134, 82 L. Ed. 155, 58 S. Ct. 208; Metcalf and Eddy v. Mitchell, 269 U. S. 514, 46 S. Ct. 172, 70 L. Ed. 384; Alabama v. King and Boozer, 314 U. S. 1, 62 S. Ct. 43, 86 L. Ed. 3; Graves v. New York, ex rel. O’Keefe, 306 U. S. 466, 59 S. Ct. 595, 83 L. Ed. 927.
By analogy to these tax cases, state regulation of independent contractors has also been sustained in the face of increased economic burdens passed on indirectly to the Government by the independent contractors. Penn Dairies v. Milk Control Commission, 318 U. S. 261, 63 S. Ct. 617, 87 L. Ed. 748; Stewart & Co. v. Sadrakula, 309 U. S. 94, 60 S. Ct. 431, 84 L. Ed. 596; Railway Mail Ass’n v. Corsi, 326 U. S. 88, 65 S. Ct. 1483, 89 L. Ed. 2072; E. E. Morgan Co., Inc. v. State, Use Phillips County, 202 Ark. 404, 150 S. W. 2d 736; Sollitt & Sons Construction Co. v. Commonwealth of Virginia, 161 Va. 854, 172 S. E. 290, 91 A. L. R. 774; Ohio River Contract Co. v. Gordon, 244 U. S. 68, 37 S. Ct. 599, 61 L. Ed. 997.
Since the appellants admit that they have violated the provisions of the Act, if the Act is applicable to them, we must therefore affirm the judgment of the trial court in each of the above cases., | [
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George Bose Smith, J.
This is a contest of a local option election that was held in Fourche Township, Pulaski County, on June 1, 1954. As originally certified the vote was in favor of the manufacture and sale of intoxicants. A petition to contest the election was then filed by the appellees. The county court dismissed the proceeding, but on appeal the circuit court reinstated the petition and tried the cause. The court found that a total of fifty-four votes had been illegally cast in favor of the continued sale of intoxicants; the elimination of these votes changed the election result from wet to dry.
The appellants urge two principal points for reversal, both of which are well taken. First, it is contended that the contestants ’ petition was not filed in the county court within the time allowed by law. The result of the election was declared by the county court on June 4. The statute requires that a contest be filed within ten days and invests the county court with original jurisdiction of the proceeding. Ark. Stats. 1947, §§ 48-820 and 3-1205; Hubbard v. Watson, 218 Ark. 737, 238 S. W. 2d 656. Thus the appellees’ petition should have been filed in the county court by June 14, 1954.
The petition was in fact filed with the county clerk on June 9, but it was addressed to the County Board of Election Commissioners. That body is charged, among other things, with the safekeeping of original ballot boxes. Ark. Stats., §§ 3-1008, 3-1013. This petition asks that the board impound the absentee ballot box, that the petitioners be permitted to examine the ballots, and that proof be taken to determine which ballots were irregular. In publishing the statutory notice of the filing of the petition (Ark. Stats., § 48-820), the contestants stated that ‘ ‘ a petition has been filed with the County Board of Election Commissioners.”
It was not until July 2 that the contestants filed a supplemental petition asking the county court to take jurisdiction of the case. That court correctly dismissed the proceeding as being out of time. The only petition filed within the statutory time limit was addressed to the County Board of Election Commissioners and sought relief from that body alone. Had the law directed that the petition be filed with the board in question it is plain enough that this pleading would have been lodged in the proper forum. But the tribunal having jurisdiction is the county court, and it cannot very well be said that this petition was pending before the board and the court at the same time.
In defending their position the appellees put much stress on the fact that the petition was filed in the office of the county clerk. It does not follow, however, that the petition was therefore pending in the county court. The county clerk, in addition to being the clerk of the county court, is the clerk of the probate court, the juvenile court, and the quorum court; he is also the designated custodian of many public' records. It is quite apparent that the mere deposit of a paper with the county clerk does not convert it into a pleading addressed to the county court. We must conclude that the appellees’ petition was originally filed with the County Board of Election Commissioners, which was the wrong forum. The case of Casey v. Burdine, 214 Ark. 680, 217 S. W. 2d 613, is controlling as to the lack of statutory authority for a belated transfer of the cause in such a situation.
Second, it is insisted that the appellants’ demurrer to the contestants’ petition should have been sustained when the case reached the circuit court. We agree with this alternative contention, but it need not be discussed at length. The contestants’ statutory notice pretty well described the petition by stating that it asked that the ballots “be re-examined for irregularities and that if said irregularities be found, said irregular ballots be stricken from the rolls.” The petition does not charge that any specified vote was illegally cast; instead, it asks that the contestants be permitted to examine the ballots “in order that proof may be taken to determine which ballots are irregular.” It is true that the petition contains conclusions of law to the effect that illegal votes were cast by the wets, but the petition contains no information that would identify any allegedly illegal voter. We are not convinced that the legislature, in requiring the contestants to file within ten days “a written statement of the grounds of contest” (Ark. Stats., § 48-820), meant to sanction a petition that might conceivably consist of a mere recitation, in general language, of every election irregularity to be found in the books. Yet the statute would have to he so interpreted if this petition is to he held sufficient.
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George Rose Smith, J.
This is an action by the State of Oklahoma to recover income taxes in the amount of $9,292.91, with interest. The complaint contains three separate counts, one for the year 1948, one for 1949, and one for 1950. It is alleged that for each of those years the defendant failed to pay the Oklahoma income tax upon rentals received by him upon mining machinery located in that state. The defendant’s demurrer to each count in the complaint was sustained by the circuit court, and the action ivas dismissed.
The basic question is whether Oklahoma can maintain a suit in the Arkansas courts for the recovery of taxes. By Act 73 of 1951 it is provided: “Any State of the United States of America, or any political subdivision thereof shall have the right to sue in the courts of Arkansas to recover any tax which may be owing to it when the like right is accorded to the State of Arkansas and its political subdivisions by such State, whether such right is granted by statutory authority or as a matter of comity.” Ark. Stats. 1947, § 84-3203. It is conceded that Oklahoma has a similar statute and thus meets the condition imposed by our law.
The appellee, relying upon Jacobus v. Colgate, 217 N. Y. 235, 111 N. E. 837, Ann. Cas. 1917E, 369, contends that the statute should not be applied retroactively to a suit involving a tax liability that accrued before the effective date of the act. The appellant answers that a prospective application of the statute would merely limit its operation to suits filed after its passage, regardless of when the tax accrued. See Oklahoma ex rel. Okla. Tax Com’n v. H. D. Lee Co., 174 Kan. 114, 254 P. 2d 291.
Without determining the merits of this question we prefer to rest our decision upon the simpler premise that Oklahoma could have maintained this action even if the tax reciprocity statute had not been passed. In our opinion the oft-repeated dogma, that one sovereign does not enforce the revenue laws of another, is rapidly approaching a deserved extinction in those instances in which the dispute is not international but merely interstate.
The history of this rule is traced in a note in 29 Columbia Law Review 782. It originated in England in the latter part of the eighteenth century and is based largely upon two statements by Lord Mansfield, to the effect that one nation does not take notice of the revenue laws of another. The English cases of course involved the laws of nations rather than the laws of the American states. Too, in none of those cases was a foreign sovereign actually denied access to the English courts. Instead, the rule was announced in situations in which the courts elected to enforce commercial contracts despite the fact that they were in some way violative of the revenue laws of the country in which they were executed.
In America the fact that the rule was a familiar principle of law may well have deterred the states from seeking one another’s assistance in the collection of taxes. At any rate, for whatever reason, in the American cases prior to the twentieth century the rule is seldom mentioned and is usually dictum. In 1905, however, North Carolina departed from precedent to the extent of. permitting New Jersey to prove a tax claim in an insolvency proceeding. J. S. Holshouser Co. v. Gold Hill Copper Co., 138 N. C. 248, 50 S. E. 650, 70 L. R. A. 183. The court may have considered the doctrine not to have been involved, for the opinion did not mention it.
It was not until 1921 that the traditional rule was unequivocally applied by an American court of last resort as a ground for denying the assertion of a tax claim by a sister state. In Colorado v. Harbeck, 232 N. Y. 71, 133 N. E. 357, New York refused to entertain a suit brought by Colorado for the collection of inheritance taxes. The Harbeck decision is sometimes referred to as the leading case on the subject, and so it is in New York, where it has been often followed by the lower state and federal courts. Elsewhere, however, its adherents are few, and even in Now York the law has been changed by statute. McKinney’s Consolidated Laws of New York, Tax Law, § 249-t.
After the Harbeck decision the soundness of the ancient doctrine, by then a hundred and fifty years old, became increasingly the subject of reconsideration, at first in the law schools and later in the courts and legislatures. We have already cited an early law review note. In 1932 Robert A. Leflar painstakingly analyzed the entire question and demonstrated, we think unanswerably, that there is no reason whatever for one American state to reject another’s suit for the recovery of taxes, absent some strong ground of local public policy or some inability to provide the remedy sought. Leflar, Extra-state Enforcement of Penal and Governmental Claims, 46 Harv. L. Rev. 193, 215 et seq.
The original rule, in its application to cases of international aspect, may well find some justification in one sovereign’s reluctance to inquire into another’s system of law or to risk the giving of affront by the denial of a sovereign demand. Obviously these considerations are without weight in litigation originating in and confined to the United States.
On the other hand, the rule encourages willful, dishonest tax evasion. As Professor Leflar points out, the higher tax rates that have resulted from the broadening of governmental services have provided a correlatively stronger incentive for tax avoidance. A few decades ago taxes were generally modest enough to constitute an annoyance rather than a substantial burden upon income or property. But today an income or estate levy may consume half or more of the object taxed, supplying a tempting motive for tax evasion.
Enforcement of the rule now in question offers a legally respectable asylum to the tax dodger. An heir, for example, may frequently be in a position to convert an inherited fortune into cash and move to another state. If pursued in his new home by the defrauded state he may confidently demur even to allegations of conscious and deliberate wrongdoing, for one sovereign does not notice the revenue laws of another. Other similar examples come readily to mind.
Once the fallacies in the traditional view had been exposed, the doctrine quickly became obsolescent. By now about half the state legislatures have approved reciprocity laws. In the courts the trend is in the same direction. In 1946 the original principle was re-examined and rejected in Missouri. State of Oklahoma ex rel. Okla. Tax Com’n v. Rodgers, 238 Mo. App. 1115, 193 S. W. 2d 919, 165 A. L. R. 785. Kentucky quickly followed Missouri’s lead. State of Ohio ex rel. Duffy v. Arnett, 314 Ky. 403, 234 S. W. 2d 722. In its 1948 supplement to the Restatement of Conflict of Laws, § 610, the American Law Institute rescinded its earlier assertion of the older view and stated that if a position were to be taken it would seem desirable to follow the Missouri decision.
Since the case at bar is one of first impression in this state, our legislature could not have been certain of the Arkansas law when it adopted a reciprocity statute in 1951. Quite evidently the legislative purpose was not primarily to change the law but to put Arkansas in a position to take advantage of like legislation elsewhere; for the emergency clause declares that the evasion of Arkansas taxes has been continuous and frequent and that there is no adequate legal machinery for the recovery of taxes due the State of Arkansas. In adopting what we think is now the majority rule we confirm the legislative declaration of Arkansas’s position in the matter.
Even though Oklahoma’s action is maintainable, there remains a question of limitations, as to which the law of the forum governs. Moores v. Winter, 67 Ark. 189, 53 S. W. 1057. The appellee demurred separately to the three causes of action, as the Civil Code permits. Ark. Stats., § 27-1120. We assume, without deciding, that the parties are correct in their common contention that the three-year statute of limitations is «controlling. Ark. Stats., § 37-206.
By Oklahoma law an income tax return is due and the tax payable on March 15 next succeeding the close of the taxable calendar year. Okla. Stats., Title 68, §§ 884 and 901. Hence the taxes for the three years now in issue were respectively due on March 15 of 1949, 1950, and 1951. The present suit was not filed until February 11, 1954. It follows that the action is barred for the first two years but not for the third.
Affirmed as to counts one and two, reversed as to count three.
MoFaddin, J., concurs in part and dissents in part. | [
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Ward, J.
This suit was instituted to cancel a deed on the grounds that the grantor lacked the necessary mental capacity and that the grantee, having knowledge of the grantor’s mental condition, exercised over persuasion, fraud, duress and undue influence. The trial court decreed a cancellation on the ground of lack of mental capacity, hence this appeal.
Background, facts. Henry Hamilton, a negro 86 years of age at the time he made the deed in question, held legal title to real property in North Little Rock described as Lots 5, 6, 7 and 8, Block 5, Foraker Grove Addition which he had owned for several years. There was a seven room residence on one of the lots in which Hamilton lived and there was a small rent house on each of the other three lots. The value of this property is estimated at from $3,000 to $9,000. On June 14, 1954 Hamilton, for a consideration of $3,000 paid in cash, executed and delivered to appellant Dick Fikes [and his wife] a regular warranty deed to all of said property. On June 23, 1954 Croteal Lee, a daughter of Hamilton, was legally appointed his guardian and on the same day filed a complaint to have the said deed canceled.
Appellee’s testimony. The record reflects the following testimony, in substance, to establish Hamilton’s lack of mental capacity. Dr. N. T. Hollis, a licensed physician since 1935, served on the staff of the State Hospital until 1947 when he entered the private practice of psychiatry in which field he has specialized for 19 years. He examined Hamilton physically and psychiatrically on June 29 and July 1, 1954 when he also talked to tw'o of Hamilton’s daughters. He found Hamilton to be 86 years old, suffering from hypertension, almost blind, hearing affected, mentally confused, and senile, and it was his opinion that this condition developed gradually over a period of years. In his opinion Hamilton was mentally incompetent on June 14, 1954 to fully understand a transaction involving the sale of real estate, its value, or to execute a deed conveying the same. On cross examination he stated that his examination lasted about a half hour on each occasion; that Hamilton showed confusion and uncertainty on many scores although he knew the names of all of his children and where they were located; and he based his opinion partially on the ground that Hamilton is obviously senile and physically crippled.
Dr. A. C. Kolb, 68 has engaged in the practice of medicine and psychiatry since 1917 and has served as superintendent of the Arkansas State Hospital for several years. He has also been employed by the Veterans Administration in the department of psychiatry and was Chief of the Neuropsychiatric unit of the Medical Division until April 1, 1954, and is certified by the medical board of neurology and psychiatry. He examined Hamilton on October 7, 1954 when he obtained a thorough case history after talking to Hamilton and several members of his family. From this he learned that Hamilton had quit work in January 1954 because his eyesight was not good and because he could not work as efficiently as he had in the past; that his wife died in May 1954 since which time he had become depressed and had drunk considerable liquor — something- like one pint a day, and; his arteries were hard and tortuous with ringlike formations that could be felt, indicating very marked arteriosclerosis. He made a diagnosis of generalized arteriosclerosis which affected Hamilton’s brain and his judgment in conducting business affairs. The doctor also stated Hamilton had a marked mental enfeeblement, secondary only to arteriosclerosis and he didn’t think he had the capacity to make the deed on June 14. On cross examination the doctor stated that if you could see Hamilton’s brain it would be very much sunken due to lack of nourishment.
Some 8 or 10 witnesses, including the County Judge and contractors for whom Hamilton had worked on previous occasions, testified in substance that Hamilton began to fail rapidly about 18 months previously and that while he was working he.would often have to stop and sometimes he would forget to go to work; that he was forgetful and sometimes failed to recognize people whom he knew well; that for 4 or 5 years his wife had attended to most of the business; that since the death of his wife and up until the deed was executed he drank as much as a pint or more of liquor a day, and; that he was apparently worried and morose. Judge Campbell stated that Hamilton had worked for him for many years and that he had never known him to drink during that time but that he saw him about the first of June 1954 and knew he had been drinking and could see “his old friend was slipping”; and that he saw him later in June or July and his mental and physical condition was still about the same. Ben Hogan, a general contractor, for whom Hamilton had worked, saw him shortly before the trial and he noticed that he tottered and seemed very feeble and his statements were not coherent, certainly not comparable to what they were years ago. Two real estate men after carefully inspecting the property estimated it to be worth approximately $9,000.
Appellants’ testimony was substantially as follows: Dr. Elizabeth Fletcher, a graduate of Arkansas School of Medicine in 1934, and at present engaged in the private practice of psychiatry, examined Hamilton on September 20, 1954. She found evidence of generalized arteriosclerosis and a white ring about the eyeballs called arcus senilis; he weighed 123 pounds, shoulders stooped and bent, oral hygiene poor, and eyesight impaired, with no indication of cardiac decomposition. In her opinion his physical condition does not affect his mental capacity. He was quiet, agreeable and cooperative, she found no unusual mannerisms and no evidence of delusions or hallucinations and, in her opinion, he knew what he was doing when he signed the deed and knew the consequences of his act. On cross examination she stated that arcus senilis is indicative of hardening of the arteries. She also found a white ring completely around the iris of his eyes, his heart somewhat enlarged as was to be expected, a loud systolic murmur indicating an ortic insufficiency, but he gave no evidence of lack of blood supply to the brain. She found that he was bright and smart and could evaluate the sale of a piece of land as well as the average person. Hamilton left the impression on her that he had made a mistake in selling the land but since he had agreed to the transaction he ought to suffer the consequences.
Fikes stated that Hamilton first asked him $3,500 for the property and that later he agreed to take $3,000; that after his attorney had examined the abstract, which had not been brought up to date, he gave Hamilton three One Thousand Dollar bills and that Hamilton’s daughter gave him a receipt; and, that later on the same dajr he went back when Hamilton signed the deed. In his opinion the property was not worth more than $3,000 and there was nothing in Hamilton’s appearance to indicate that he had been drinking or that he did not fully understand what he was doing. Under their agreement Hamilton was to get one month’s free rent and after that he was to pay $30 a month rent to live in the main house. Two real estate men estimated the value of the property to be around $3,500. There was testimony that Hamilton did not drink after his wife’s death and that his mind was not affected.
It was shown by the testimony for both sides that at about the time the deed was executed Hamilton contracted for lumber to the extent of $178.95 in order to repair a house nearby which did not belong to him, and that a few days later the lumber was returned and he was refunded the $100 which he had made as a down payment.
In the words of appellants “the sole question (for us to decide) is the adequacy of the evidence to support the chancellor’s finding that Hamilton did not realize the effect, result or import of his acts in selling the property.” In the beginning, however, it is necessary to set forth the correct rule by which we are to be guided. Appellants start their argument with the statement that “the proof of incompetency must rise above a prepon derance and must be clear, cogent and convincing to justify setting the deed aside”. In this statement of the rule appellants are in error, and they are not sustained by Braswell v. Brandon, 208 Ark. 174, 185 S. W. 2d 271, which they cite. There the “preponderance rule” was stated at page 176 [Arkansas Reports]. The Braswell opinion does however cite Stephens v. Keener, 199 Ark. 1051, 137 S. W. 2d 253, as sustaining the “clear, cogent, and convincing rule ’ ’, but in that case there was no question of mental capacity involved. The correct rule by which we are to be guided in this kind of a case is, as stated in McEvoy v. Tucker, 115 Ark. 430, 171 S. W. 888, and Oliphant v. Oliphant, 217 Ark. 446, 230 S. W. 2d 653, whether or not the chancellor’s finding is contrary to the preponderance of the evidence.
The definition of what constitutes mental capacity to execute a deed has been stated in varying language by many decisions of this court. Perhaps the language most uniformly approved by our decisions is that set forth in Seawel v. Dirst, 70 Ark. 166, 66 S. W. 1058, McEvoy v. Tucker, supra, and Beaty v. Swift, 123 Ark. 166, 184 S.W. 442, to the effect that proof which is designed to invalidate a person’s deed or contract on the ground of insanity must show inability to exercise reasonable judgment in regard to the transaction involved, and it must be such as to disqualify him from intelligently comprehending and acting upon the business affairs out of which the conveyance grew, and to prevent him from understanding the nature and consequences of his .act.
Guided by these rules we are unable to say that the trial court’s finding in this case was against the preponderance^ the evidence.
At the outset we cannot help but be impressed by the qualifications and testimony of the two psychiatrists who, after careful examinations, concluded that Hamilton lacked the necessary mental capacity to execute the deed to appellants. This specialized testimony was corroborated by the lay testimony of several individuals, some interested and some apparently disinterested, who had the opportunity to observe Hamilton and to compare his physical and mental condition at the time the deed was executed with his condition at prior times. We cannot say that the chancellor was wrong in being more impressed by this testimony than he was by the testimony of the one psychiatrist and other individuals who were of the opinion that Hamilton did have sufficient mental capacity at the time he executed the deed on June 14, 1954 to understand the nature and consequences of his act.
There are some other circumstances in the case which confirm the view we. take. Although the price paid for the property by appellants is not shown by the evidence to be so inadequate as to shock the conscience or to be conclusive of the lack of mental capacity on the part of Hamilton, yet the chancellor may well have found it was worth considerably more than $3,000, and, if so, was a circumstance which the chancellor had the right to take into consideration in his over-all view of the case. In McEvoy v. Tucker, supra, the court said: . .we think the evidence in this ease shows an inadequate consideration, and that is a circumstance to be considered in determining whether relief shall be granted in cases of this character, for if, in addition to mental incapacity, there is also inadequacy of consideration, equity will the more readily intervene to set aside a conveyance”.
While we agree with the chancellor that there is nothing in the testimony in this case to show that Fikes’ conduct in dealing with Hamilton amounted to fraud or deception, yet there is one incident of such significance as to evoke comment by Dr. Kolb which may properly be mentioned. The testimony shows that before the abstract of title had been brought up to date and before the deed in question had been executed appellant Fikes went to Hamilton’s home and offered him three One Thousand Dollar bills for the property, and that Hamilton accepted them with apparent relish. Not only was this procedure on the part of Fikes somewhat unusual, but Dr. Kolb thought it was calculated to produce a psychological effect on Hamilton. The doctor stated it was his frank opinion that Fikes recognized Hamilton’s mental enfeeblement and used the One Thousand Dollar bills as a psychological wedge, and that it worked. Mention is made of this merely because we think it might well have impressed the chancellor as it did the doctor.
Accordingly, the decree of the trial court is affirmed. | [
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Lee Seamster, Chief Justice.
The appellants prosecute this appeal from a decree of the Union Chancery Court, Second Division, which refused to declare certain deeds, absolute in form, to be mortgages and also refused to declare certain tracts of real estate to be held in trust by appellee for appellants.
The undisputed facts reveal that Hope Traylor, the father of appellants, purchased the south 92 feet of Lot 4, Block 1 of Simpson Addition to the City of El Dorado, Arkansas, from S. R. Morgan in 1925. On June 5, 1928, Hope Traylor obtained a loan in the amount of $500 from B. Davis. In consideration for this loan, Traylor entered into an agreement with Davis, whereby, repayment of tlie loan would be made at the rate of $10 monthly, until the indebtedness was liquidated. As security for this loan, Davis required Traylor to execute and deliver to him, a mortgage on the above described property. Hope Traylor died, thereafter, without fully satisfying the amount of his indebtedness to Davis. On February 26, 1934, Davis filed a suit to foreclose the mortgage on the property, and shortly thereafter, the chancery court ordered the property to be sold on June I, 1934, to satisfy the amount of the outstanding indebtedness on the mortgage. B. Davis submitted the highest bid for said property, whereby, the property was sold to him and a commissioner’s deed was issued to him on June 11, 1934. The deed was recorded on June 12, 1934.
In order that Myra Traylor might save the homestead, B. Davis entered into a contract with Myra Traylor on September 17, 1935, whereby, she would pay him the sum of $400 for said property, of which $10 was paid in cash and a series of 39 notes were executed for the balance of $390, payable $10 monthly until the debt was liquidated. On the same date, B. Davis executed to Myra Traylor a sales contract or bond for title, binding himself to convey said property to her, upon payment of the above described indebtedness. Myra Traylor died in 2937, without fully satisfying the amount of the indebtedness.
On August 12, 1939, B. Davis conveyed the above mentioned lands by warranty deed to J. B. Evans, in consideration for the sum of $300. On the same day, August 12, 1939, the appellants herein, who were the occupants of the premises, executed a quitclaim deed to J. B. Evans relinquishing any interest that they might have in the property. The appellants continued to occupy the premises and made monthly payments of $10 each to J. B. Evans, until his death in 1949. Thereafter, the appellants made these monthly payments to Mrs. J. B. Evans, who was the sole beneficiary under J. B. Evans will until October of 1952, at which time Mrs. Evans served notice upon appellants to vacate the premises.
The appellants filed the instant suit on November 12, 1954, claiming that J. B. Evans was holding the above described property in trust for them and they were entitled to have title declared in them; that the deeds executed by them in 1939 were given as a mortgage to secure a debt of $300, which debt has been fully satisfied. Upon trial of this cause, the chancellor dismissed the appellants’ complaint for want of equity and quieted and confirmed title to the property in the appellee. On the appellee’s cross-complaint, the chancellor found that appellants were tenants at will of appellee, whereby, judgment in the sum of $260 was awarded appellee, such amount representing 26 months rent owed by appellants. This appeal follows.
According to the testimony of the appellants, they entered into an oral contract with J. B. Evans, whereby, Evans loaned the appellants the sum of $300, with which to pay off an indebtedness on the property to B. Davis, in return for appellants promise to repay this amount in monthly installments of $10 each, with 10% interest until debt was liquidated. Appellants insist that J. B. Evans required them to execute to him a quitclaim deed to the property herein above described, said deed being dated August 12, 1939, and was given as security for repayment of the $300 loan. On the same date, B. Davis instead of executing the deed to appellants, did execute and deliver a deed to the property to J. B. Evans, who acquired title to the property for the specific purpose of holding this property in trust for appellants, until the $300 loan was repaid, at which time appellants allege that Evans agreed to reeonvey the property to them. The appellants insist that payment was made in accordance with this oral agreement, until October of 1952, at which time they decided that an overpayment had been made on this loan and they refused to make any further payments and sought title to the property.
The testimony of the appellee Mrs. J. B. Evans was to the effect that J. B. Evans acquired title to the above described property by an absolute sale of the property to him by B. Davis, on August 12,1939. Appellee denied that J. B. Evans entered into an oral contract to reconvey the property to appellants and further testified that Evans did not loan the appellants the sum of $300. It is earnestly insisted that had Evans made this purported loan to appellants, they (appellants) would have personally liquidated their indebtedness to B. Davis and also would have procured title to the property in their own name, executing a mortgage to Evans to secure the loan.
The appellee further testified that appellants rented the property for $10 per month, and such payments were made from 1939 to September, 1952, a period of 13 years. In September of 1952, the appellants refused to make further rent payments, at which time the appellee served notice upon appellants to vacate the premises.
The testimony of Floyd Stein, an attorney who prepared all the deeds in question, corroborates the testimony that was adduced by appellee. Mr. Stein testified that he examined the title to the property for Mr. Evans, whereby, the examination revealed that said property was owned by B. Davis under and by virtue of a commissioner’s deed executed on June 11, 1934. Stein further testified that he prepared a warranty deed to said property, which deed was executed before him as a notary public, conveying the property from B. Davis to J. B. Evans; that before he would approve the title to the property, he procured a quitclaim deed from appellants, since they were occupants of the premises; that the only reason for procuring a quitclaim deed from appellants, was to prevent any question being later raised by them that they were anything other than tenants at will of B. Davis. Mr. Stein also stated that the whole transaction was fully explained to all parties.
Appellants seek to reverse the decree of the trial court on the ground that this case calls for an application of the established rule in this State that a court of equity will treat a deed, absolute in form, as a mortgage, whenever executed for the loan of money or as security for a debt. The general doctrine prevails in this State that the grantor may show that a deed absolute on its face was only intended to be a security for the payment of a debt and thus is a mortgage. Since the equity upon which the court acts arises from the real character of the transaction, any evidence, written or oral, tending to show this, is admissible. If there is a debt existing with a loan of money in advance, and the conveyance was intended by the parties to secure its payment, equity will-regard and treat an absolute deed as a mortgage. However, the presumption arises that the instrument is what it purports to be; and, to establish its character as a mortgage, the evidence must be clear, unequivocal, and convincing. By this is meant that the evidence tending to show that the transaction was intended as security for debt, and thus to be a mortgage, must be sufficient to satisfy every reasonable mind without hesitation. See Bailey v. Frank, 170 Ark. 610, 280 S. W. 663; Landers v. Denton, 213 Ark. 87, 209 S. W. 2d 300; Kerby v. Feild, 183 Ark. 714, 38 S. W. 2d 308.
We do not think that the evidence is of that certain, unequivocal and convincing character that would authorize or justify a court of equity to treat the instruments as a mortgage instead of deeds. The oral testimony, when taken in consideration with the written instruments, renders it reasonably certain that it was the intention of the parties'that the deeds should be absolute in fact, as well as in form.
After a careful consideration of the evidence, we are of the opinion that the decree of the chancery court was correct, and it will therefore be affirmed. | [
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Ward, J.
We are concerned here with when and nnder what circumstances a wife is entitled to (a) maintenance and (b) an attorney fee in a divorce proceeding instituted by her husband.
Pleadings. On November 20, 1953 appellee, Grady Welch, filed a petition for divorce against appellant, his wife, alleging indignities in that she continually fussed and argued, displayed ill temper because he would not continually take her to spend most of her time at her parents’ home, and finally deliberately left his home and went to her parents.
On December 3, 1953, appellant filed a motion for attorney fees, suit money and alimony, stating: She had no estate or money to employ counsel to defend the action or to pay court costs and. other expenses, and that appellee was earning about $300 per month. She asked for $25 a week as temporary alimony and an attorney fee.
On July 1, 1954, appellant filed an answer to the divorce suit, without waiving the motion she filed on December 3, 1953, consisting of a general denial and also an allegation that her husband ordered her to leave home and refused to allow her to return, and prayed for separate maintenance.
On July 8, 1954, on his own motion, appellee’s petition for divorce was dismissed without prejudice, and on December 8, 1954 [the day of the hearing] he filed a general denial to appellant’s petition for separate maintenance.
Testimony. The testimony, in substance, shows: The parties were married October 1, 1953 and separated five or six weeks later. Shortly before they were married appellee’s mother died, and upon being married they went to the home of appellee’s father to live with him. At the time of the marriage appellant’s mother was sick. Appellant says her mother was “real sick,” and in the worst stage of diabetes, that she tried to get the wedding postponed but appellee promised to take her once a week (on Sundays) to visit her mother who lived at Smackover — a distance of some 20 miles. During the few weeks they lived together appellee took appellant to see her mother each Sunday, except on one occasion when she voluntarily stayed at home for a family reunion.
Although there was some friction between appellant and her father-in-law over cooking and housekeeping, it seems that the only cause of trouble in the marriage relations was the matter of appellant making weekly visits to her sick mother.
The first difficulty arose three weeks after the marraige when, after returning home from a Sunday visit, appellee told his wife (she says) that he was going to quit taking her to see her mother. This apparently made appellant angry for she left for two or three days but then returned" to her husband. A similar incident occurred after again living together two or three weeks. Appellant says that when they got home (from a visit to her mother) she went to her room when appellee walked in and said: “Buby, I want you to leave. I can’t see any way for us to get along.” Thereupon her husband and his father took her, together with her clothes, to her mother’s home. Appellant later made an effort to effect a reconciliation and she says she is now willing to resume marital relations, hut appellee refused and still refuses to do so.
Appellee’s version of the final separation varies only slightly from that of his wife. He says she took offense (at her mother’s home) when he wanted to leave in time to do the chores at his home, and that she didn’t say a word on the way back; that when they arrived he asked her if she was going to cook supper and she replied: “No, I am not cooking supper on Sunday evening”; that later he went into the bedroom where she was and said: “Buby, don’t look like we can get along, you won’t even try to cooperate. If you want to go and stay with your mother, go on up there and stay”; that she said: “Will you carry me tonight” and he said “I sure will.” Appellee admits that the only difference they had was about going to her mother’s. He filed suit for divorce five days after the separation. Other witnesses testified in corroboration of many of the facts above set forth but not as to what transpired at the time of the final separation.
Appellee works for the Union County Highway Department for $10 a day when the weather permits. He owns no property hut has about $200 in the bank. He had an operation in the summer of 1954 and wasn’t able to work for four months. Appellant has worked at odd jobs before and after her marriage but, as the result of an old back injury, is unable to do work that requires her to stand, and she has no money or property.
After hearing the testimony the Chancellor dismissed appellant’s petition for separate maintenance and refused to allow her an attorney fee. He apparently took the view that she had not met the burden of proving her husband caused her to leave his home or refused to let her remain there, and, particularly, that her testimony was not corroborated.
Appellee contends that the Chancellor’s finding should be sustained under the well known rule that it will stand unless against the weight of the evidence. However, we are of the opinion that this is a case where the rule is not controlling, and that the decree must be reversed.
(a) Separate Maintenance. Appellant’s suit for separate maintenance, unlike a suit for divorce, does not necessarily require corroborating testimony. See Wood v. Wood, 140 Ark. 361, 215 S. W. 681. Where, as here, the husband files for a divorce and the wife asks for separate maintenance, it is not necessary for the wife to show merit. See Jelks v. Jelks, 207 Ark. 475, 181 S. W. 2d 235.
In order for appellant to be entitled to maintenance here it was not incumbent upon her to show appellee forced her to leave. On the other hand, before appellee could defeat her claim it was incumbent on him to show either that she deserted him without just or reasonable cause or that he left her for such cause. Reasonable cause was defined in Rie v. Rie, 34 Ark. 37, at page 41, in this language:
“It has been held, subject to some qualifications, that reasonable cause, which, within the divorce statutes, will justify one of the married parties in abandoning the other, must be such conduct as could be made the foundation of a judicial proceeding for divorce.”
In Bonner v. Bonner, 204 Ark. 1006, 166 S. W. 2d 254, this court said:
“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 bonnden duty to support her as long as the bonds of matrimony exist between them. ’ ’
The record does not support the conclusion that appellant abandoned appellee without good cause, but rather that both were at fault; In fact any abandonment on the part of appellant was nullified when she offered to return to her husband. Likewise appellee failed to show that he quit living with appellant for reasonable cause as defined in the Rie case, supra. Apparently he thought no such cause existed because he dismissed his action for divorce.
Based upon the above applicable rules and the testimony in this case we conclude that the appellant should have been granted separate maintenance in this case in the amount later mentioned.
(b) Attorney fee. The Chancellor should also have allowed a fee for appellant’s attorney. As shown by the record appellee first filed a suit for divorce. Then appellant filed a motion for attorney fee stating that she had no money with which to employ counsel and later counsel was employed and she filed an answer to the divorce suit. Since there was no showing that appellant had either money or property she was thereupon entitled to money with which to employ counsel. In the early case of Glenn v. Glenn, 44 Ark. 46, this court said; “In the absence of any proof of separate property in a wife, it is just and reasonable to compel the husband to furnish the wife with means to defend a suit by him for divorce. Otherwise she would be at his mercy.” This rule was cited with approval in the case of Slocum v. Slocum, 86 Ark. 469, 111 S. W. 806, and in subsequent cases.
Alloivances. We realize that the trial judge is ordinarily in a better position to ascertain the needs of appellant and the ability of appellee to pay than we are, but we also realize that appellant has been denied assistance for several months and that she might be denied assistance for some time in the future if we did not as sume this responsibility. Appellant asked the trial court for $25 a week for maintenance but we do not feel that the record justifies us in making an award in that amount. Based on what the record shows regarding appellee’s financial status and his earnings we have concluded that he should pay to his wife the sum of $10 each week, beginning October 1, 1955. Based on the record we have concluded that appellee should pay $50 for her attorney’s fee in the trial court and $50 for his fee in this court and that he should pay the cost in this court and the court below.
Accordingly the decree of the trial court is reversed with directions to enter judgment for appellant in accordance with this opinion. | [
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George Rose Smith, J.
In December, 1953, the appellant came to Arkansas from Missouri. Some three months later he filed suit for divorce in the Fulton Chancery Court, the service of process upon the appellee being by warning order. At the term beginning in April, 1954, the court entered a default decree granting the divorce. During the same term of court the appellee filed a motion to set aside the decree, upon the ground that the appellant was not a resident of Arkansas. This motion was not presented to the court until the October term, at which time the chancellor, after hearing additional testimony, found that the appellant is not a bona fide resident of Arkansas and that the decree should be set aside as having been obtained by fraud on the court. This appeal is from the order vacating the original decree.
Although the appellee’s motion was filed during the April term of court, the court’s discretionary power to grant the motion ended with the lapse of the term and could not be revived even by consent. Mayor & Aldermen of Little Rock v. Bullock, 6 Ark. 282; Brady v. Hamlett, 33 Ark. 105; Ingram v. Wood, 172 Ark. 226, 288 S. W. 393. Hence the question is whether there is a sufficient showing of fraud on the court to warrant the vacation of the decree under the statute that applies after the expiration of the term. Ark. Stats. 1947, § 29-506.-It may be added that, since the appellee did not enter her appearance prior to the rendition of the divorce decree, the issue of residence is not res judicata and may be re-examined. Anderson v. Anderson, 223 Ark. 571, 267 S. W. 2d 316.
The proof follows a pattern familiar in cases of this kind. Dobbs had first sought to obtain a divorce in Missouri. On the day after his petition there was denied he came to Arkansas and undertook the establishment of residence in this state. At the time of the October hearing Dobbs had been in Arkansas for a little more than ten months. In that period he had started a salvage business (which took him frequently back to Missouri), had assessed and paid taxes in Arkansas, and had begun the construction of a home on land he had bought. Several witnesses corroborate the fact of Dobbs’ presence in the community. Although some of these matters occurred after the entry of the decree in April, they are not without relevance to the question of whether Dobbs came to Arkansas with the intention of making it his domicile.
On the other hand, Dobbs admittedly migrated to Arkansas immediately after his complaint for divorce had been dismissed in Missouri. This is a circumstance to be considered, although it is not necessarily fatal to the acquisition of an Arkansas domicile. Wicker v. Wicker, 223 Ark. 879, 269 S. W. 2d 311. It is also shown that during most of his stay in Arkansas Dobbs has been living in a tent pitched on the site where he is assertedly building a house.
In our opinion the record fails to establish the charge of fraud on the court. It is true that one who obtains a divorce upon perjured testimony as to residence commits a fraud on the court. Vanness v. Vanness, 128 Ark. 543, 194 S. W. 498; Murphy v. Murphy, 200 Ark. 458, 140 S. W. 2d 416. But in those cases the plaintiff was guilty of conscious and deliberate perjury, his testimony as to physical residence having been wholly untrue. That is not the situation in the ease at bar. Too, in each of the above cases the husband had concealed his wife’s true address, so that she failed to receive notice of the suit. Here Dobbs supplied the appellee’s correct address; her failure to receive notice was due to her own refusal to accept the registered letter mailed to her by the attorney a cl litem.
In this case it is fair to say that the evidence as to residence is evenly balanced or very nearly so. If this were simply an appeal from a decree denying the appellant’s request for a divorce it might well be said that the chancellor’s decision was not clearly against the weight of the evidence. But that is not the case before us. The appellee’s present burden of proof is not merely that of disputing the assertion of residence; she must go a step farther by showing that the decree was obtained by fraud. Reasons of public policy make it desirable that decrees affecting the marital status have a high degree of stability. “There are excellent reasons why judgments in matrimonial causes, whether of nullity, dissolution or separation, should be more stable, certainly not less, than in others, and so our courts hold. The matrimonial status of the parties draws with and after it so many collateral rights and interests of third persons that uncertainty and fluctuation in it would be greatly detrimental to the public.” Corney v. Corney, 97 Ark. 117, 133 S. W. 813. We are unwilling to hold that fraud on the court is established by mere proof that the issue of residence is a closely disputed question of fact that might he resolved either way. Under such a rule every uncontested divorce case would be subject to trial de novo for the indefinite future. This appellant undoubtedly made prima facie proof of residence. There being little if any evidence of deliberate perjury, wrongful concealment of the defendant’s whereabouts, or other conduct by which the decree was fraudulently procured, the original decree should have been allowed to stand.
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Sam Robinson, Associate Justice.
Appellant Irene Thompson appeals from a conviction of possessing liquor for sale in a dry county.
First, appellant contends that the trial court should have declared a mistrial because, in his opening statement to the jury, the Prosecuting Attorney said: “We expect to prove that these people bear the reputation of dealing in illicit liquor and have borne that reputation for some considerable length of time and bear that reputation now in the community where they reside, that they have received numerous convictions for illicit dealing in liquor.” Ark. Stats. 48-940 provides: “In any prosecution or proceeding for any violation of this act [the act which the defendant was charged with violating], the general reputation of the defendant or defendants for moonshining, bootlegging, or being engaged in the illicit manufacture of, or trade in, intoxicating liquors, shall be admissible in evidence against said defendant or defendants.” Not only was defendant’s reputation for dealing in illicit liquor admissible in evidence under the above mentioned statute, but evidence of convictions for violations of the liquor laws was also admissible. Of course, the Prosecuting Attorney had the right to mention in Ms opening statement the competent, relevant testimony he relied on for conviction. The statute, as set out above, clearly states that the defendant’s reputation with regard to the liquor business is admissible, and this court has held in a large number of cases that evidence of violations and convictions for violating the liquor laws is admissible. Hughes v. State, 209 Ark. 125, 189 S. W. 2d 713; Casteel v. State, 151 Ark. 69, 235 S. W. 386; Larkin v. State, 131 Ark. 445, 199 S. W. 382; Lowery v. State, 135 Ark. 159, 203 S. W. 838; Burrell v. State, 203 Ark. 1124, 160 S. W. 2d 218.
Appellant also argues that the court erred in not excusing for cause the venireman John E. Brown, alleging: “The juryman clearly displayed that he was prejudiced against the defendant. . . .” We have carefully examined the record, and it does not show any prejudice on the part of Mr. Brown.
Next, appellant states that the evidence is not sufficient to sustain the conviction.' It is shown that appellant had the reputation of being engaged in the liquor business ; that she had been convicted on prior occasions; that many people were noticed going in and out of the defendant’s home, and that, later, these same people would be arrested for drunkenness. It is further shown that people who have the reputation of drinking go to appellant’s home frequently. At the time of her arrest, appellant had in her possession fourteen half pints of liquor of various brands. All of this evidence, when considered together, is sufficient to sustain a conviction of possessing liquor for sale in a dry county.
Finding no error, the judgment is affirmed. | [
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Minor W. Millwee, Justice.
This is a suit hy appellee, W. Lee Clements, against appellants, Missouri Pacific Railroad Company and T. W. Keesee, to recover damages for trespass upon appellee’s lands and to remove a cloud on his title thereto.
The appellant railroad maintained a wooden trestle over its line across Swan Lake in Desha County. In 1944 the trestle was damaged by fire and the company decided to replace it with an earthen fill. The proposed project required the acquisition of land in the vicinity, or easements to excavate such land, in order to obtain a suitable supply of dirt for that purpose. Appellee owned a 40-acre tract adjacent to the fill site upon which there was a high silt ridge of timbered land that was most suitable and economically desirable for making the fill. Appellant Keesee owned a tract immediately north of appellee’s land.
There was an exchange of conveyances between the appellants in August, 1944, whereby the railroad conveyed to Keesee 47.5 acres of farm land lying about a mile north of the land desired for making the fill in exchange for an easement with right to excavate for a 10-year period on 38 acres described by metes and bounds adjacent to the fill site. The lease deed executed by Keesee embraced about 20 acres actually owned by appellee and included the high silt ridge from which the railroad planned to obtain dirt for the fill. The railroad proceeded with the excavation resulting in the digging of a 7.9-acre borrow pit upon and otherwise rendering worthless a total of 10 acres of appellee’s land.
The excavation work was nearly completed before it was discovered by appellee whose protests resulted in extensive negotiations for a settlement without success and the institution of this suit. Appellants offered no evidence at the trial and upon the proof presented by appellee the chancellor made extensive findings and entered a decree removing the cloud on appellee’s title cast by the lease agreement and awarding him damages in the sum of $3,200 for the destruction of his land.
It is undisputed that the location and terrain of the land destroyed made it by far the most suitable and economical in the area for the railroad’s use. The use of any other available land in the area would have entailed a much longer haul and added considerably to the cost of the project. Appellee testified that land in the area like the 10 acres in question was worth $70.00 per acre as timbered and uncleared farm land. He also testified that during the negotiations following the excavation he had a conference with H. H. Gudger, an engineer and Assistant Superintendent of the railroad at Wynne, Arkansas, in which the latter informed appellee that the railroad removed approximately 80,000 cubic yards of dirt from his land. Appellee further testified without objection that prior to the letting of the excavation contract he had a long conference with a contractor named Reed who was doing some work in the vicinity and was a prospective bidder on the excavation job. Reed had approached appellee about purchasing the land in question in the event he became the successful bidder and stated that railroad authorities had advised that the fill would require about 80,000 cubic yards of dirt. It was then and there agreed that Reed would pay appellee $100 per acre for the land used plus 4 cents per cubic yard for the dirt if Reed obtained the contract. There was also uncontradicted evidence to the effect that the 47.5 acres which the railroad deeded to Keesee in exchange for the 10-year lease agreement had a market value of $100 per acre.
In fixing the amount of appellee’s damages the trial court found that the railroad was in reality buying dirt, and not timbered land, and that it removed 80,000 cubic yards of dirt worth 4 cents a yard from appellee’s land in making the fill. The following further findings by the court are fully supported by the record: ‘ ‘ The evidence on the part of the plaintiff which may be treated as competent on the subject, together with the inferences therefrom, establish the gratuitous enrichment of Mr. Keesee in the sum of $4,750.00 and the enrichment of the Railroad Company ,by getting what it wanted, where it wanted it, and at considerable saving to itself. The evidence, also, shows that plaintiff furnished the dirt for this valuable fill or embankment for which he has not received one penny, with practically no effort on the part of the Railroad Company to see that he got remuneration and with actual opposition on the part of Mr. Keesee to prevent him from getting reasonable compensation.”
I. Measure of Damages. Appellants first argue that the chancellor applied the wrong measure in'arriving at the amount of appellee’s damages. They point to appellee’s testimony to the effect that the 10 acres in question was worth $70 per acre as timbered and uncleared farm land and say that this constituted the only evidence in the record which even purported to establish the market valué of the land destroyed. As appellants suggest, we have held that the measure of damages for permanent injury to real estate is the difference in market value before and after the injury. Standard Oil Co. of La. v. Goodwin, 174 Ark. 603, 299 S. W. 2. It would follow that where the injury is both total and permanent, as here, the measure of damages would be the market value of the land destroyed. In establishing market value, however, it does not necessarily follow that the landowner is limited to the value of the land for one purpose only.
In Fort Smith and Van Buren Bridge District v. Scott, 103 Ark. 405, 147 S. W. 440, the court stated: “The measure of the owner’s compensation for the land condemned is the market value thereof at the time of the taldng for all purposes, comprehending its availability for any use to which it is plainly adapted, as well as the most valuable purpose for which it can be used and will bring most in the market.” See, also, Kansas City So. Ry. Co. v. Boles, 88 Ark. 533, 115 S. W. 375; Gurdon and Fort Smith Rd. Co. v. Vaught, 97 Ark. 234, 133 S. W. 1019. Thus in a proceeding to condemn a site for a railroad bridge this court held that evidence showing that the land required for that purpose possessed superior advantages as a bridge site was admissible as affecting the question of its market value. L. R. Junction Ry. v. Woodruff, 49 Ark. 381, 5 S. W. 792, 4 Am. St. Rep. 51. Also in Yonts v. Public Service Co. of Arkansas, 179 Ark. 695, 17 S. W. 2d 886, landowners were held entitled to judgment for the market value of land based on its availability as a damsite and reservoir. While the foregoing cases involved condemnation proceedings under the power of eminent domain of railroads or other utilities, we hold the same rule applicable here. It would be anomalous indeed to say that an owner should receive less for property taken from him tortiously and without authority than when taken by orderly legal process. It follows that the chancellor, in fixing the market value of the land destroyed, was not confined to a consideration of its use for agricultural purposes and had a right to base his findings upon its availability for the most valuable purposes for which it could be used, including its location, character and suitability for use in making the fill.
II. The Evidence. Appellants also contend there was no competent evidence upon which to predicate an award of $3,200 or base a finding that 80,000 cubic yards of dirt had been excavated. They point to the testimony of appellee relative to his conferences with, and statements made by, Gudger and Reed and urge its incompetency as hearsay. But this testimony was admitted without objection in the trial court and it is too late to make such objection here. We so held in Gen. Fire Ext. Co. v. Beal-Doyle D. G. Co., 110 Ark. 49, 1605 S. W. 889, where Ihore was a failure to object in the trial court to testimony fixing an erroneous basis for determining market value. See, also, Sandidge v. Sandidge, 212 Ark. 608, 206 S. W. 2d 755. The rule that all objections to evidence and witnesses must be made in a timely manner in the trial court, and will be considered as waived when the case reaches us on appeal, if not so made, is equally applicable in chancery cases as in cases at law. Umberger v. Westmoreland, 218 Ark. 632, 238 S. W. 2d 495.
Moreover, we do not agree that the statement made by G-udger was incompetent. Several communications between the railroad and appellee tend to show authority to speak for the company. In addition there was the uncontradicted evidence of the peculiar adaptability of the land for the purpose at hand and that the land given by the railroad in exchange for the excavation right had a market value of $4,750. In our opinion the evidence is sufficient to sustain the damages awarded.
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J. Seaborn Holt, Associate Justice.
This appeal questions the action of the Jefferson Probate Court in admitting to probate the will of John W. Knowles, dated August 8, 1949.
For reversal appellants rely on the following points: “1. That the evidence and record conclusively show that the will was not executed at the time, place, or in the manner, alleged by the proponent of the will, and no other proof was submitted bearing on the execution of the will. 2. The proponent of the will has failed to produce testimony as to the circumstances attending the signing of the will and that there is no showing that the essential requirements in the execution of the will, as prescribed under Section 19 of Act 140 of the G-eneral Assembly of 1949, [now § 60-403 Ark. Stats. 1947 Supplement] were met and complied with. ’ ’
It appears to be conceded that the signature of ‘ ‘ John W. Knowles ’ ’ to the will is authentic and that the testator executed it at a time when he possessed mental capacity to do so, and without undue influence. The will recited in part:
“. . . IN TESTIMONY WHEREOF, I have hereunto set my hand, published and declared this to be my last will and testament in the presence of witnesses named below this 8th day of August, 1949.
/s/ John W. Knowles
. John W. Knowles this day signed, published and declared the above as and for his last Will and Testament in our presence and at his request we have subscribed our names hereto as attesting witnesses in the presence of- the testator and in the presence of each other.
ALL DONE this 8th day of August, 1949.
/s/ S. L. MeCohn
/s/ Lillie M. Smith.”
As indicated the testator signed the will. The living witness to the will, “S. L. McCohn” [sister-in-law of the testator] testified that she was called to the office of Mr. Toney, an attorney, by the testator and witnessed the will there; that, Mr. Toney was reading the will to the testator when she walked into his office; that, she saw the testator sign it and then at his request she signed it; that, the other witness, Lillie M. Smith [now deceased] was present and also at the testator’s request signed the will in S. L. McCohn’s presence and in the presence of the testator. Five other witnesses identified the signature of ‘ ‘ Lillie M. Smith, ’ ’ the deceased witness to the will.
In their argument appellants say: “There is only one issue raised by the appeal in this cause. It can be resolved in the answer to the question as to whether or not the widow of John W. Knowles, as the petitioner for the probate of his will, has discharged the burden of proof devolving on her to show that the purported will was executed and witnessed in conformity with the Statutes.
“If the fantastic and incredible narrative of the widow and her sister attains the dignity of preponderant proof that the will was executed by Knowles and witnessed by the sister of the widow in Mr. Toney’s law office, then, concededly, there is no validity to the contention of appellants that this matter should be reviewed in this Court. . . .”
In support of this contention they offer the testimony of two witnesses, Mr. Toney’s secretary, Mrs. Armstrong, and that of Dr. Lawlah. Their testimony, however, which is negative in nature, can afford them little comfort. Mrs. Armstrong testified: “ Q. And now can you tell this court the will wasn’t executed in your office? A. No, I wouldn’t say it wasn’t, but I do not remember anything about the execution of it. . . . Q. If the court should ask this question ‘ Shirley Armstrong, you are under oath, tell us, was the will executed in Mr. Toney’s office, or was it not? ’ You cannot give the answer? A. No. . . . Q. Under that condition, you certainly will not tell the court it was not executed in your of fice ? A. No.” [Tr. pages 72 & 73.]
In an effort to show that Knowles was confined to his bed and could not have gone to Mr. Toney’s office to execute the will on August 8, 1949, they offered the testimony of Dr. Lawlah, who testified: “ Q. Are you willing to swear he would not walk out August 8th? A. I was away, so I couldn’t swear what happened on August 8th. Q. It has been sworn in this courtroom, that on August 8, 1949, he went to Mr. H. K. Toney’s office and signed a will, which will is marked McCohn Exhibit ‘A.’ Could you swear he wasn’t physically able to walk down town, or go in a car, to Mr. Kemp Toney’s office? A. I could not. . . . Q. You didn’t see this man from July 26th to September 1st? A. No.”
After a review of all the evidence we have concluded that the findings of the trial court were not only not against the preponderance of the testimony but are supported by the great preponderance thereof.
On the general rule applying to the execution of wills we said in Anthony v. College of the Ozarks, 207 Ark. 212, 180 S. W. 2d 321, “No presumption of the due execution of a will arises from the mere production of an instrument purporting to be a last will and testament. . . . Where, however, in proceedings for the probate of an instrument as a will it appears to have been duly executed as such, and the attestation is established by proof of the handwriting of the witnesses or otherwise, although their testimony is not available, or they do not remember the transaction, it will be presumed, in the absence of evidence to the contrary, that the will was executed in compliance with all the requirements of law, including those relating to publication, attestation in the presence of the testator, and the affixing of the testator’s signature prior to those of the witnesses.”
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Paul Ward, Associate Justice.
The issues presented by this appeal relate to the relative rights of riparian landowners to the use of a privately owned non-navigable lake and the wafer therein.
Appellant, Theo Mashburn, lessee of riparian landowners conducts a commercial boating and fishing enterprise. In this business he rents cabins, sells fishing bait and equipment, and rents boats to members of the general public who desire to use the lake for fishing and other recreational purposes. He and his lessors filed a complaint in chancery court on July 10, 1954, to enjoin appellees from pumping water from the lake to irrigate a rice crop, alleging that, as of that date, appellees had reduced the water level of the lake to such an extent as to make the lake unsuitable “for fishing, recreation, or other lawful purposes.” After a lengthy hearing, the Chancellor denied injunctive relief, and this appeal is prosecuted to reverse the Chancellor’s decision.
FACTUAL BACKGROUND. Horseshoe Lake, located about 3 miles south of Augusta, is approximately 3 miles long and 300 feet wide, and, as the name implies, resembles a horseshoe in shape. Appellees, John Brooks and John Brooks, Jr., are lessees of Ector Johnson who owns a large tract of land adjacent to the lake, including three-fourths of the lake bed.
Por a number of years appellees have intermittently raised rice on Johnson’s land and have each year, including 1954, irrigated the rice with water pumped from the lake. They pumped no more water in 1954 than they did in 1951 and 1952, no rice being raised in 1953. Approximately 190 acres were cultivated in rice in 1954.
The rest of the lake bed and the adjoining land is divided into four parts, each part owned by a different person or group of persons. One such part is owned by Ed Harris, Jesse Harris, Alice Lynch and Dora Balkin who are also appellants. In March, 1954, Mashburn leased from the above named appellants a relatively small camp site on the bank of the lake and installed the business above mentioned at a cost of approximately $8,000, including boats, cabins, and fishing equipment. Mashburn began operating his business about the first of April, 1954, and fishing and boat rentals were satisfactory from that time until about July 1st or 4th when, he says, the fish quit biting and his income from that source and boat rentals was reduced to practically nothing.
Appellees began pumping water with an 8-inch intake on May 25, 1954, and continued pumping until this suit was filed on July 10, and then until about August 20th. They quit pumping at this time because it was discovered fish life was being endangered. The trial was had September 28, 1954, and the decree was rendered December 29, 1954.
THE TESTIMONY. Because of the disposition we hereafter make of this case, it would serve no useful purpose to set out the voluminous testimony in detail or attempt to evaluate all the conflicting portions thereof. The burden of appellants’ testimony, given by residents who had observed the lake over a period of years and by those familiar with fish life and sea level calculations, was directed at establishing the normal or medium water level of the lake. The years 1952, 1953 and 1954 were unusually dry and the water levels in similar lakes in the same general area were unusually low in August and September of 1954. During August 1954 Horseshoe Lake was below “normal,” but it is not entirely clear from the testimony that this was true on July 10 when the suit was filed. It also appears that during the stated period the water had receded from the bank where Mashburn’s boats were usually docked, making it impossible for him to rent them to the public. There is strong testimony, disputed by appellees, that the normal level of the lake is 189.67 feet above sea level and that the water was below this level on July 10. Unquestionably the water was below normal when this suit was tried the latter part of September, 1954.
On the part of appellees it was attempted to show that; they had used the water for irrigation several years dating back to 1931 and . Mashburn knew this when he rented the camp site; although they had been pumping regularly since May 25, 1954, the water did not begin to fall in the lake until July 1st or 4th; an agent of the Arkansas Game and Fish Commission examined the lake and the water about July 2nd and found no condition endangering fish life, and similar examinations after suit was filed showed the same condition, and; they stopped pumping about August 20th when they first learned that fish life was being endangered.
ISSUES CLARIFIED. In refusing to issue the injunction the Chancellor made no finding of facts, and did not state the ground upon which his decision rested. Appellants strongly insist that the Chancellor was forced by the testimony to conclude first that the normal level of the lake was 189.67 feet above sea level and second that the water in the lake was at or below this level when the suit was filed on July 10th. This being true, appellants say, it was error for the Chancellor to refuse to enjoin appellees from pumping water out of the lake. If it be conceded that the testimony does show and the Chancellor should have found that the water in Horseshoe Lake was at or below the normal level when this suit was filed on July 10th, then appellants would have been entitled to an injunction provided this case was decided strictly under the uniform flow theory mentioned hereafter. However as explained later we are not bound by this theory in this state. It appears to us there might have been some confusion as to the ground upon which appellants based their contention for relief. Under the pleadings it appears that they may be asking for relief on two separate grounds: (a) The right to fish and (b) The right to conduct a commercial boating enterprise. It was incumbent upon appellants to show that one or both rights were unreasonably interfered with when the water level sank below “normal.” It is difficult to tell whether the testimony establishes this fact in either instance. (a) The only testimony in the first instance is that fish quit biting somewhere about the 4th of July but there was no conclusive evidence that this was caused by the lake being below “normal” level. It is common knowledge that fish quit biting sometime for no apparent good reason. There was no testimony that fish life was endangered before July 10th but on the other hand there was positive testimony to the contrary, (b) Likewise there was no conclusive testimony showing that it was impractical to dock or run boats on the lake prior to July 10th. Moreover it would be pure conjecture to say that the same water level, whether normal or otherwise, controlled both fishing and boating. Certainly appellants made no attempt to make any distinction either in the pleadings or by the testimony between the two causes of action.
In view of the above situation it is urged by appellees that the case should therefore be affirmed, but we have concluded that the best interest of the parties hereto and the public in general will be served by concluding this case in the light of the announcements hereafter made and the conclusions hereafter reached. Before attempting such conclusion it appears proper to make some general observations relative to the law regulating the use of water in lakes and streams.
TWO BASIC THEORIES. Generally speaking two separate and distinct theories or doctrines regarding the right to use water are recognized. One is commonly called the “Appropriation Doctrine” and the other is the “Riparian Doctrine.”
Appropriation Doctrine. Since it is unnecessary to do so we make no attempt to discuss the varied implications of this doctrine. Generally speaking, under this doctrine, some governmental agency, acting under constitutional or legislative authority, apportions water to contesting claimants. It has never been adopted in this state, but has been in about 17 western states. This doctrine is inconsistent with the common law relative to water rights in force in this and many other states. One principal distinction between this doctrine and the riparian doctrine is that under the former the use is not limited to riparian landowners.
Riparian Doctrine. This doctrine, long in force in this and many other states, is based on the old common law which gave to the owners of land bordering on streams the right to use the water therefrom for certain purposes, and this right was considered an incident to the ownership of land. Originally it apparently accorded the landowners the right to have the water maintained at its normal level, subject to use for strictly domestic purposes. Later it became evident that this strict limitation placed on the use of water was unreasonable and unutilitarian. Consequently it was not long before tbe demand for a greater use of water caused a relaxation of the strict limitations placed on its use and this doctrine came to be divided into (a) the natural flow theory and (b) the reasonable use theory.
(a) Natural Flow Theory. Generally speaking again, under the natural flow theory, a riparian owner can take water for domestic purposes only, such as water for the family, livestock, and gardening, and he is entitled to have the water in the stream or lake upon which he borders kept at the normal level. There are some expressions in the opinions of this court indicating that we have recognized this theory, at least to a certain extent.
Reasonable TJse Theory. This theory appears to be based on the necessity and desirability of deriving greater benefits from the use of our abundant supply of water. It recognizes that there is no sound reason for maintaining our lakes and streams at a normal level when the water can be beneficially used without causing unreasonable damage to other riparian owners. . The progress of civilization, particularly in regard to manufacturing, irrigation, and recreation, has forced the realization that a strict adherence to the uninterrupted flow doctrine placed an unwarranted limitation on the use of water, and consequently the courts developed what we now call the reasonable use theory. This theory is of course subject to different interpretations and limita tions. In 56 Am. Jur., page 728, it is stated that “The rights of riparian proprietors on both navigable and unnavigable streams are to a great extent mutual, common, or correlative. The use of the stream or water by each proprietor is therefore limited to what is reasonable, having due regard for the rights of others above, below, or on the opposite shore. In general, the special rights of a riparian owner are such as are necessary for the use and enjoyment of his abutting property and the business lawfully conducted thereon, qualified only by the correlative rights of other riparian owners, and by certain rights of the public, and they are to be so exercised as not to injure others in the enjoyment of their rights. ’ ’ It has been stated that each riparian owner has an equal right to make a reasonable use of waters subject to the equal rights of other owners to make the reasonable use (U. S. v. Willow River Power Co., 324 U. S. 499, 65 S. C. 761, 89 L. Ed. 1101). The purpose of the law is to secure to each riparian owner equality in the use of water as near as may be by requiring each to exercise his right reasonably and with due regard to the rights of others similarly situated. (Meng. v. Coffey, 67 Neb. 500, 93 N. W. 713, 108 Am. St. Rep. 697).
This court has to some extent recognized the reasonable use theory (Thomas v. LaCotts, 222 Ark. 171, 257 S. W. 2d 936; Ralph R. Harrell, et al., v. City of Conway, et al., 224 Ark. 100, 271 S. W. 2d 924, but we have also said (in the City of Conway case) that the uniform flow theory and the reasonable use theory are inconsistent and, further that we had not yet made a choice between them. It is not clear that we made a choice in that case. The nucleus of this opinion is, therefore, a definite acceptance of the reasonable use theory. We do not understand that the two theories will necessarily clash in every case, but where there is an inconsistency, and where vested rights may not prevent, it is our conclusion that the reasonable use theory should control.
In embracing the reasonable use theory we caution, however, that we are not necessarily adopting all the interpretations given it by the decisions of other states, and that our own interpretation will be developed in the future as occasions arise. Nor is it intended hereby that we will not in the future, under certain circumstances, possibly adhere to some phases of the uniform flow system. It is recognized that in some instances vested rights may have accrued to riparian landowners and we could not, of course, constitutionally negate those rights.
It should also be made clear that nothing in this opinion is intended to or can infringe upon the powers of the Arkansas State Game and Fish Commission as invested by Amendment No. 35 to the Constitution of this State. It is recognized that said Commission has the power to propagate, preserve, and protect fish in streams and lakes. In exercising this power the Commission will undoubtedly be interested in some instances in the amount of water that may be removed from lakes or streams where injury to fish life is involved.
The result of our examination of the decisions of this court and other authorities relative to the use by riparian proprietors of water in non-navigable lakes and streams justifies the enunciation of the following general rules and principles:
(a) The right to use water for strictly domestic purposes — such as for household use — is superior to many other uses of water — -such as for fishing, recreation and irrigation.
(b) Other than the use mentioned above, all other lawful uses of water are equal.
Some of the lawful uses of water recognized by this state are: fishing, swimming, recreation, and irrigation.
(c) When one lawful use of water is destroyed by another lawful use the latter must yield, or it may be enjoined.
(d) When one lawful use of water interferes with or detracts from another lawful use, then a question arises as to whether, under all the facts and circumstances of that particular case, the interfering use shall be declared unreasonable and as such enjoined, or whether a reasonable and equitable adjustment should be made, having due regard to the reasonable rights of each.
Application to This Case. Some of the questions, therefore, which must be considered are these:
(a) Had appellees on July 10,1954, by the continued use of water from Horseshoe Lake, destroyed appellants ’ right to fish and conduct the boating enterprise? If so, the injunction should be granted.
(b) If it is found, however, that appellants’ rights had only been impaired at the stated time, then it must be judged, under all the facts and circumstances as before mentioned, whether such impairment is unreasonable. If it is so found then the injunction should issue. If it is found that appellants ’ rights have not been unreasonably impaired, having due regard to all the facts and circumstances and the injury which may be caused appellees as weighed against the benefits accruing to appellants, then the injunction should be denied.
We do not minimize the difficulties attendant upon an application of the reasonable use rule to any given set of facts and circumstances and particularly those present in this instance. It is obvious that there are no definite guide posts provided and that necessarily much must be left to judgment and discretion. The breadth and boundaries of this area of discretion are well stated in Restatement of the Law, Torts, § 852c in these words: “The determination in a particular case of the unreasonableness of a particular use is not and should not be an unreasoned, intuitive conclusion on the part of the court or jury. It is rather an evaluating of the conflicting interests of each of the contestants before the court in accordance with the standards of society, and a weighing of those, one against the other. The law accords equal protection to the interests of all the riparian proprietors in the use of water, and seeks to promote the greatest beneficial use of the water, and seeks to promote the greatest beneficial use by each with a minimum of harm to others. But when one riparian proprietor’s use of the water harmfully invades another’s interest in its use there is an incompatibility of interest between the two parties to a greater or lesser extent depending on the extent of the invasion, and there is immediately a question whether such a use is legally permissible. It is axiomatic in the law that individuals in society must put up with a reasonable amount of annoyance and inconvenience resulting from the otherwise lawful activities of their neighbors in the use of their land. Hence it is only when one riparian proprietor’s use of the water is unreasonable that another who is harmed by it can complain, even though the harm is intentional. Substantial intentional harm to another cannot be justified as reasonable unless the legal merit or utility of the activity which produces it outweighs the legal seriousness or gravity of the harm.”
In all our consideration of the reasonable use theory as we have attempted to explain it we have accepted the view that the benefits accruing to society in general from a maximum utilization of our water resources should not be denied merely because of the difficulties that may arise in its application. In the absence of legislative directives, it appears that this rule or theory is the best that the courts can devise.
OUR CONCLUSION. After careful consideration, an application of the rules above announced to the complicated fact situation set forth in this record leads ns to conclude that the Chancellor should have issued- an order enjoining appellees from pumping water out of Horseshoe Lake when the water level reaches 189.67 feet above sea level for as long as the material facts and circumstances are substantially the same as they appear in this record. We make it cléar that this conclusion is not based on the fact that 189.67 is the normal level and that appellees would have no right to reduce such level. Our conclusion is based on the fact that we think the evidence shows this level happens to be the level below which appellants would be unreasonably interfered with. This holding is, we think, in harmony with the holding in the Tampa Coal Company case, supra. That case involved a shallow privately owned lake similar to the one under consideration. Taylor was enjoined from pumping the water from the lake to irrigate his citrus grove on the ground that to do so destroyed the use of the lake by the employees of the Coal Company for recreational purposes. The court held that Taylor could not pump water from the lake after it reached the normal level. A careful reading of the case, however, shows that the decision was not based on the normal level or natural flow theory but rather on the fact that that level happened to be the one below which it would be unreasonable to reduce the water. In reaching its conclusion the court, among other things, said: “. . . each riparian owner has the right to use the water in the lake for all lawful purposes, so long as his use of the water is not detrimental to the rights of other riparian owners. From the evidence in the record it is plain that when the water of the lake here involved is at a normal level the lake is too small in area and content to allow water to be pumped therefrom for irrigation purposes without consequent damage to other riparian owners.” The court then justified its conclusion “when conditions are such that the lake is either at or below normal water level and the use thereof for irrigation purposes will operate to the injury of other riparian owners. . . .”
We think the conclusion we have reached is not only logical but practical. Although appellees had quit using-water from the lake when this ease was tried yet they testified that they intended to use water therefrom in 1955. We might assume that they would want to also use water in subsequent years, so it would seem to be to the best interest of all parties concerned to have a definite level fixed at which pumping for irrigation must cease in order to avoid useless litigation.
Appellees make the point that the Chancellor should be sustained because they have acquired a prescriptive right to the unlimited use of the water in Horseshoe Lake, and, to the same effect, that appellants are estopped from asserting any rights to the contrary. We cannot sustain this contention. Although appellees, according to the record, have used this water for irrigation purposes on several occasions in previous years, dating back for more than seven years, yet it appears that appellants had not been disturbed in the exercise of their riparian rights previous to 1954. Prior to that year appellees had merely been exercising their lawful rights as riparian owners and their exercise of those rights was in no way adverse to the rights of any one. (56 Am. Jur., p. 730, § 343) in the City of Conway case, supra, where the same contention was made that appellees here make the contention was denied, the court saying: “We are unable to find any act or acts on the part of Conway of an adverse claim or nature, or such as would put appellants on notice of any adverse claim. ’ ’ The court then followed with citations which are applicable here.
Reversed with direction to the trial court to enter a decree in conformity with this opinion.
Justice McFaddin concurs.
Wells A. Hutchins, U. S. Department of Agriculture in a paper presented before the Midwestern States Flood Control Conference, East Lansing, Michigan, on June 15, 1954, among other things, said:
“The effect of the repudiation of a common law system and its complete replacement by an appropriative system is to deny the right of an owner of land bordering a stream ... to divert and make use of the water solely by reason of his ownership of the land; to declare all such waters to be the property of the state, and; to make all waters . . . open to appropriation for beneficial use. . . .”
In St. Louis Southwestern Railway Company v. Mackey, 95 Ark. 297, 129 S. W. 78, at page 299 of Ark. Reports, it was said: “It is the right of each proprietor along a natural drain or watercourse to insist that the water shall continue to flow as it has been used and accustomed to do so; . . .”
In Taylor v. Rudy, 99 Ark. 128, 137 S. W. 574, this language was used at page 132 of the Ark. Reports: “Every owner of land through which a stream of water flows is entitled to the use and enjoyment of the water, and to have the same flow in its natural and accustomed course without obstruction, diversion or corruption.”
In Meriwether Sand & Gravel Company v. State Ex Rel. Attorney General, 181 Ark. 216, 26 S. W. 2d 57, at page 226 of the Ark. Reports, it was said: “Every such proprietor is entitled to the usual flow of a stream in its natural channel over his land, undiminished in quantity and unimpaired in quality, subject to the reasonable use by upper proprietors, and with the right to make any reasonable use of the water necessary for his convenience or pleasure, including in non-navigable waters, the exclusive privilege of taking fish from the stream.”
In the case of Meriwether Sand & Gravel Company v. State Ex Rel. Attorney General, supra, at page 226, Ark. Reports, this court said: “Riparian rights inhere in the owner of the soil and are part and parcel of the land itself, and are vested and valuable rights which no more may be destroyed or impaired than any other part of a freehold.” This right was also recognized in the LaCotts case, supra.
The use of water for domestic purposes is usually accorded a preference over the demands of irrigation and manufacturing. 56 Am. Jur. 784, § 343. Humphreys-Mexia Co. v. Arseneaux, 116 Tex. 603, 297 S. W. 225, 53 A. L. R. 1147.
In the case of Taylor v. Tampa Coal Co. (Fla.), 46 So. 2d 392, at page 394, it is stated: “It is the rule that the rights of riparian proprietors to the use of waters in a non-navigable lake such as the one here involved are equal.”
See Meriwether Sand & Gravel Co. v. State Ex Rel. Attorney General, supra, and Barboro v. Boyle, 119 Ark. 377, 178 S. W. 378, at pages 382, 383 of the Ark. Reports.
In 56 Am. Jur., page 783, it is stated: “In determining whether an artificial use of the water of a stream is reasonable or not, it is necessary to consider what the use is for, its extent, duration, necessity, and application, the nature and size of the stream, and the several uses to which it is put, the extent of the injury to one proprietor and the benefit to the other, and all other facts which may bear upon the reasonableness of the use.” | [
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George Rose Smith, J.
This was originally a suit by Kelley Brothers Lumber Company to foreclose a materialman ’s lien upon the house and lot in dispute. There being no question as to the validity of that lien, the real controversy is between the appellant Orr and the appellees Harold and Anita Bergemann. Orr seeks to enforce an oral contract with both the Bergemanns and a written contract with Harold Bergemann only. The chancellor awarded Orr a money judgment upon the written contract but refused to grant any relief upon the oral agreement. Orr contends that he is entitled to specific performance of the parol contract.
In 1951 Orr, having retired from newspaper work in Kansas City, came with his wife to Arkansas in search of a place to live. Harold Bergemann, who is a son of Mrs. Orr by a prior marriage, was then living with his wife Anita near Fayetteville in a home owned by Mrs. Bergemann. The Orrs visited the Bergemanns, and it was agreed between the two couples that the Orrs would build a house next door to the Bergemanns on another part of Mrs. Bergemann’s land, that the Orrs wonld receive a life estate in this property, and that upon the death of Mr. and Mrs. Orr the house and lot would revert to Mrs. Bergemann.
Pursuant to this oral agreement Orr constructed a modern four-room house on Anita’s land. The Orrs, however, were unable to obtain from her the promised conveyance of a life estate; Mrs. Bergemann kept putting the matter off and finally resisted Orr’s present plea for specific performance. When the house Avas completed Orr still owed $663.95 to Kelley Brothers for materials used in the construction.
In April, 1953, Mrs. Orr became so seriously ill that her husband thought it best to take her back to Kansas City for treatment. Before he left Orr made a Avritten contract Avith Harold Bergemann by which Bergemann agreed to pay Orr $2,500, at the rate of $25 a month, for the labor and materials furnished by Orr in the construction of the house. Orr testified that Bergemann also agreed to pay the Kelley Brothers claim in monthly installments of $25. This testimony is undenied; Harold did not take the witness stand at the trial.
After the Orrs’ departure the Bergemanns moved into the new house and Avere still occupying it when the case was tried. Mrs. Orr died in December, 1953; this litigation was begun by Kelley Brothers the folloxving July. It is shown Avithout dispute that Harold Bergemann has paid nothing upon his debt to Orr, that nothing has been paid by anyone upon the Kelley Brothers claim, and that Anita Bergemann refuses either to execute a deed to Orr or to permit him to remove the house from her land. The chancellor’s decree granted foreclosure of the materialman’s lien, reformed Orr’s contract Avith Harold by inserting an acceleration clause that had been omitted by mistake, and awarded Orr a judgment against Harold for $2,500. Orr’s cross-complaint for specific peirformance of the oral agreement Avas dismissed for want of equity.
Upon trial de novo it is clear enough that the Orrs had a cause of action against Mrs. Bergemann for specific performance of the oral contract. The statute of frauds does not supply a defense, for the promisees’ possession and improvements took the agreement out of the statute. Dillard v. Kelley, 205 Ark. 848, 171 S. W. 2d 53.
It is equally clear that this cause of action was not extinguished by, or merged into, Orr’s written contract with Harold. Since the duty of specific performance rested only on Anita, who was the sole owner of the land, it would be necessary to find a novation in order to hold that Anita’s promise had been superseded by her husband’s subsequent obligation. It is essential to a novation, however, that there be a mutual agreement by which the new obligor is substituted for the old. Riddick v. White, 194 Ark. 1010, 110 S. W. 2d 9. Here Anita refused to join in the contract between her husband and Orr, and without her joinder it is evident that a novation was not intended. This is so because Orr’s agreement with Harold necessarily recognized that Orr had an interest in the property, which Orr undertook to sell for $2,500. Since Orr’s interest could only have been his cause of action against Anita for specific performance, the written contract was manifestly an affirmation of Anita’s obligation rather than a discharge thereof.
With respect to the account of Kelley Brothers, the preponderance of the evidence shows that primary liability for the debt has been assumed by the Bergemanns. Harold Bergemann, in purchasing Orr’s interest for $2,500 — a sum substantially smaller than Orr’s investment in the house — agreed to pay the Kelley Brothers claim. There is convincing proof that Anita Bergemann also assumed this obligation after Orr went to Kansas City. An officer of the lumber company states positively that Mrs. Bergemann came to the company’s office and assumed the debt, explaining that as a result of family difficulties the Bergemanns had taken over the property. According to this witness Mrs. Bergemann applied for a federal loan to pay the account. Mrs. Bergemann’s testimony is so contradictory within itself that it fails to over come the adverse proof. Indeed, when it is observed (a) that Harold had already obligated himself to pay the account, (b) that the claim was a lien against the title that Anita was asserting, and (c) that the Bergemanns had moved into the house and were still occupying it rent-free when the case was tried some eighteen months later, there are good reasons for believing that the Bergemanns voluntarily accepted primary responsibility for the debt.
To summarize: The lumber company is entitled to judgment against Orr and the Bergemanns and to a first lien against the property. Orr is entitled to have a life estate vested in him by the decree (Ark. Stats. 1947, § 29-126), to have judgment against Harold Bergemann for the unpaid purchase price due under their contract, and to an equitable lien upon the life estate to secure the payment of his judgment against Harold. In foreclosing the liens the court should marshal the assets by making Mrs. Bergemann’s reversion primarily liable for the materialman’s lien. The proportionate value of the life estate and the reversion may be readily determined by offering those interests for sale separately, although the property should also be offered in gross so that the better bid may be accepted. The proceeds from the sale of the reversion will stand primarily liable for the lumber company’s judgment, with any surplus going to Mrs. Bergemann; the proceeds from the sale of the life estate, to the extent that they are not needed to complete payment of the Kelley Brothers judgment, will be applied in satisfaction of Orr’s judgment against Harold Bergemann, with any surplus going to Bergemann.
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Paul Ward, Associate Justice.
This action was instituted by appellants, Blanche Bridgforth and [her husband] Otto R. Bridgforth, against appellee, Francis Vandiver, to recover damages for alleged injuries to Mrs. Bridgforth resulting from an automobile collision caused, allegedly, by the negligence of appellee.
Appellee pleaded contributory negligence on the part of Mrs. Bridgforth, the driver of one of the vehicles. The cause was submitted to the jury upon instructions which are not questioned on this appeal, and a verdict was returned in favor of appellee. As recognized by appellants this court would not be justified, in the situation outlined above, in setting aside the verdict of the jury unless it is shown by the record that there is no substantial evidence to support the jury in a finding that appellee was not negligent and also that there is no substantial evidence in the record to support the jury in a finding that Mrs. Bridgforth was contributorily negligent. In other words, if we find from the record substantial evidence from which the jury might have found that appellee was not negligent or if we find substantial evidence from which the jury might have found that Mrs. Bridgforth was guilty of contributory negligence, then it is our duty, under well recognized rules, to affirm the judgment of the lower court.
The accident involved here took place on January 6, 1954, around 5:00 P. M. at the intersection of North Rosser Street and Garland Street in the City of Forrest City, Arkansas. North Rosser Street is 36 feet wide and runs north and south while Garland Street is 30 feet wide and runs east and west. There are two stop signs on Garland Street— one at the northeast corner of the intersection and one at the southwest corner of the intersection. The location described is near the business district and there is a building at or near the corner of each block adjacent to the intersection. At the time of the accident it appears that automobiles were parked on the west side of North Rosser Street near the intersection on the north side thereof, and also cars parked on the north side of Garland Street near the intersection on the west side thereof. Mrs. Bridgforth was driving her husband’s car south on North Rosser Street and appellee was driving a pickup truck oast on Garland Street, each vehicle being on the proper side of the street. When the front end of appellee’s pickup truck was about half way between the center line and the west line of North Rosser Street it was hit by or collided with the front end of the automobile being driven by Mrs. Bridgforth. Appellants’ witness stated that the automobile traveled 20 feet into the intersection and appellee’s pickup truck traveled 10 feet into the intersection when the collision occurred. After the collision appellee’s pickup truck came to a stop on the east side of North Rosser Street and the automobile traveled across North Rosser Street, hit the curb at the southeast corner of the intersection and came to rest about the middle of Garland Street — a distance of approximately 90 feet from the place of the collision.
Mrs. Bridgforth and the appellee were the only eye witnesses to the accident. Mrs. Bridgforth states that she was traveling about 25 MPH when she approached the intersection, that when she was about 50 feet from the intersection .she looked to the right and saw no one approaching along Garland Street from the west, and that Avhen she was about two-thirds of the way across the intersection her car and appellee’s truck collided, and; that when she did see appellee’s truck coming into the intersection she tried to turn her wheel just as the pickup truck and car collided, and her car was knocked out of her control. She also stated that there was a 30 mile speed limit sign on North Rosser Street.
Appellee testified that when he came close to the intersection he slowed his truck down and shifted gears hut that he did not come to a complete stop as he did not think it was necessary; that he looked both ways and couldn’t see any one coming in either direction; that after he got a few feet out into the intersection the right front of the automobile struck his truck square on the front axle, turning his truck slightly to the right; that when he stopped his truck on the east side of North Rosser Street the automobile had already hit the telephone pole across the intersection. He stated that he was going about 25 MPH when he was in the middle of the block before he slowed down for the intersection and that he did not dash out in front of Mrs. Bridgforth. He also states that he thinks he got into the intersection first and that when he first sawT the automobile it was only 6 or 8 feet away.
The above factual situation, we think, is sufficient to present a jury question. After a careful consideration we have concluded that there was substantial evidence from which the jury might have found that Mrs. Bridgforth was driving at a careless rate of speed commensurate with the possibilities of danger lurking at the particular intersection she was approaching. The jury might have believed that Mrs. Bridgforth could not have had a clear view of cars approaching the intersection from the west on Garland Street due to the fact that parked cars might have obstructed her view and consequently that she was under the duty of keeping her car under control better than she did. This possible view is strengthened by the fact that her car traveled some 90 feet after the collision. Likewise the jury had a right to conclude that appellee was telling the truth about the speed of his pickup truck since he brought it to a stop within such a short distance.
This court has heretofore had occasion to pass upon questions similar to the one presented here where the evidence of negligence was slight and in these cases we have announced rules which we think are applicable here. We have of course many times stated that this court will not disturb the verdict of a jury if it is supported by substantial evidence.
In tbe case of Baldwin v. Wingfield, 191 Ark. 129, 85 S. W. 2d 689, a similar close question was considered, and the court said: “It may be that it is improbable that the injury occurred in the instant case as stated by the appellee but it is not physically impossible.” And again it was there stated: “The fact that the appellate court would have reached a different conclusion had the judges thereof sat on the jury, or that they are of the opinion that the verdict is against the preponderance of the evidence, will not warrant the setting aside of the verdict based on conflicting evidence.” In the case of Jonesboro Coca-Cola Bottling Company v. Holt, 194 Ark. 992, 110 S. W. 2d 535, it was stated that the credibility of witnesses and the weight to be given their testimony were questions for the jury. In the case of Arkmo Lumber Company v. Luckett, 201 Ark. 140, 143 S. W. 2d 1107, it was stated that: “Substantial evidence does not necessarily mean direct evidence. A fact may be proved by circumstances, ’ ’ and it was also there stated that if there is substantial evidence to support a verdict of the jury this court will not upset it although it may appear to us it is against the preponderance of the evidence. In the case of Ocker v. Nix, 202 Ark. 1064, 155 S. W. 2d 58, the court made an announcement, at page 1067 of the Arkansas Reports, which, in reverse, we think is applicable here. In discussing this question the court said: “In the case at bar the conditions surrounding the plaintiff, as testified to by the defendant’s witnesses, furnish a very strong argument against the credibility of his testimony but this is as far as the record authorizes us to go. It cannot be said that the testimony of the plaintiff is contradicted by the physical facts or is opposed to any unquestioned law’' of nature.”
And so in this case, while we might not agree with the conclusion reached by the jury, we cannot say that this conclusion is not supported by substantial evidence as we have many times defined that phrase. Here the physical facts and circumstances not only do not belie the jury’s verdict but to some extent at least they support it.
Appellants specifically call attention to Ark. Stats., § 75-623(b) which in effect provides that where a driver encounters a stop sign at an intersection he must proceed cautiously and yield to other vehicles not so obligated to stop. Violation of this statute however, if it was violated, did not constitute negligence but was only evidence of negligence to be considered by the jury. See Rogers v. Stillman, 223 Ark. 779, 268 S. W. 2d 614. Not only is this true but it would have been necessary for the jury to find such violation to be the proximate cause of the collision. See Mays v. Ritchie Grocer Co., 177 Ark. 35, 5 S. W. 2d 728. We must of course assume that the jury did consider these features of the case if they were properly submitted by instructions, and if they were not appellants are now in no position to object.
Affirmed.
Justices George Rose Smith and Robinson concur. | [
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PER CURIAM.
|,In 2012, an amended felony information was filed in the Ashley County Circuit Court charging appellant Reginald Fitzgerald Nails with two counts of delivery of cocaine and two counts. of delivery of a counterfeit substance. Following a jury trial, appellant was convicted of one count of delivery of cocaine, and he was sentenced as a habitual offender to 480 months’ imprisonment. The Arkansas Court of Appeals affirmed. Nalls v. State, 2013 Ark. App. 183, 2013 WL 1010414.
In 2013, appellant timely filed in the circuit court a verified pro se petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2012). The petition was denied, and appellant now brings this appeal. This court will reverse the circuit court’s decision granting or denying postconviction relief only when that decision is clearly erroneous. Johnson v. State, 2014 Ark. 74, 2014 WL 688981; Pankau v. State, 2013 Ark. 162, 2013 WL 1694909. A finding is clearly erroneous when, ^although there is evidence to support it, the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Sartin v. State, 2012 Ark. 155, 400 S.W.3d 694.
As his first point for reversal, appellant contends that the circuit court erred in denying the Rule 37.1 petition without holding an evidentiary hearing. Arkansas Rule of Criminal Procedure 37.3(c) provides that an evidentiary hearing should be held in postconviction proceedings unless the files and record of the case conclusively show that the prisoner is entitled to no relief. Eason v. State, 2011 Ark. 352, 2011 WL 4092485 (per curiam); Hayes v. State, 2011 Ark. 327, 383 S.W.3d 824 (per curiam). Where the circuit court denies a Rule 37.1 petition without an evidentiary hearing, it “shall make written findings to that effect, specifying any parts of the files, or records that are relied upon to sustain the court’s findings.” Ark.R.Crim. P. 37.3(a); see Eason, 2011 Ark. 352, 2011 WL 4092485; Montgomery v. State, 2011 Ark. 462, 385 S.W.3d 189 (“[Wjhere no hearing is held on a Rule 37 petition, the trial court has an obligation to provide written findings that conclusively show that the petitioner is entitled to no relief.”).
There is no requirement that the court grant an evidentiary hearing on an allegation other than one of specific facts from which it can be concluded that the petitioner suffered some actual prejudice. McDaniels v. State, 2014 Ark. 181, 432 S.W.3d 644. The strong presumption in favor of counsel’s effectiveness cannot be overcome by a mere possibility that a hearing might produce evidence to support an allegation contained in a petition for postconviction relief. Id. In the instant case, the circuit court’s order addressed the allegations raised in the Rule 37.1 petition in compliance with the requirements of Rule 37.3(a); moreover, it was evident from the |sface of the petition and the record that no relief was warranted. See Lemaster v. State, 2013 Ark. 449, 2013 WL 5968938 (per curiam).
In his remaining points on appeal, appellant argues that the circuit court erred in not finding that counsel rendered ineffective assistance in failing to move to sever the charges and failing to object to the prosecutor’s statements made during voir dire and closing arguments. When considering an appeal from a circuit court’s denial of a Rule 37.1 petition based on ineffective assistance of counsel, the sole question presented is whether, based on a totality of the evidence under the standard set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the circuit court clearly erred in holding that counsel’s performance was not ineffective. Taylor v. State, 2018 Ark. 146, 427 S.W.3d 29. The benchmark for judging a claim of ineffective assistance of counsel must be “whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686, 104 S.Ct. 2052. Pursuant to Strickland, we assess the effectiveness of counsel under a two-prong standard. First, a petitioner raising a claim of ineffective assistance must show that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment to the United States Constitution. Williams v. State, 369 Ark. 104, 251 S.W.3d 290 (2007). There is a strong presumption that trial counsel’s conduct falls within the wide range of professional assistance, and a petitioner has the burden of overcoming this presumption by identifying specific acts or omissions of trial counsel, which, when viewed from counsel’s perspective at the time of the trial, could not have been the result of reasonable professional judgment. Henington v. State, 2012 Ark. 181, 403 S.W.3d 55; McCraney v. State, 2010 Ark. 96, 360 S.W.3d 144 (per curiam).
Second, the petitioner must show that counsel’s deficient performance so prejudiced petitioner’s defense that he was deprived of a fair trial. Holloway v. State, 2013 Ark. 140, 426 S.W.3d 462. A petitioner making an ineffective-assistance-of-counsel claim must show that his counsel’s performance fell below an objective standard of reasonableness. Abernathy v. State, 2012 Ark. 59, 386 S.W.3d 477 (per curiam). The petitioner must show that there is a reasonable probability that, but for counsel’s errors, the fact-finder would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absent the errors. Howard v. State, 367 Ark. 18, 238 S.W.3d 24 (2006). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id. The language, “the outcome of the trial,” refers not only to the finding of guilt or innocence, but also to possible prejudice in sentencing. Id. Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id. “[T]here is no reason for a court deciding an ineffective assistance claim ... to address both components of the inquiry if the defendant makes an insufficient showing on one.” Strickland, 466 U.S. at 697, 104 S.Ct. 2052.
As his first claim of ineffective assistance, appellant argues that counsel was ineffective in failing to file a motion to sever the four charges that were filed against him pursuant to Arkansas Rule of Criminal Procedure 22.2 (2012). In the Rule 37.1 petition, appellant claimed |Bthat, had counsel moved for a severance of the charges, there is a reasonable probability that the outcome of the proceedings would have been different. The circuit court denied relief on the ground that counsel’s decision to not move for a severance was a matter of trial strategy. Because there was no hearing on the merits of appellant’s Rule 37.1 petition, however, there is nothing in the record before us to determine whether counsel’s decision to not fide a motion to sever was one of trial strategy. See Montgomery, 2011 Ark. 462, 385 S.W.3d 189.
While we disagree with the circuit court’s determination in this particular case that counsel’s failure to move for a severance of the charges was one of trial strategy, we nevertheless find no error in the circuit court’s denial of relief on this claim. To demonstrate that counsel could have successfully pursued a motion to sever, appellant must show that the charges were not part of a single scheme or plan or that the same body of evidence would not be offered to prove each offense. Ark. R.Crim. P. 22.2(a). In his petition, appellant failed to demonstrate that counsel could have pursued a successful motion to sever the charges and further failed to put forth facts that supported his conclusion that he was prejudiced by counsel’s actions. The conclusory statements made by appellant cannot form the groundwork for postconviction relief. Caery v. State, 2014 Ark. 247, 2014 WL 2158140 (per curiam). Thus, we affirm the circuit court’s denial of relief on this point.' This court can affirm the circuit court if it reached the right result albeit for the wrong reason. Neal v. State, 375 Ark. 389, 291 S.W.3d 160 (2009).
We note that, on appeal, appellant contends for the first time that he was entitled to have the charges severed because the charges were not part of a single scheme or plan, and he bolsters his claim of prejudice by adding the allegation that counsel’s failure to move for a severance of |fithe charges “allowed for the charges to prop one another up.” On appeal, an appellant is limited to the scope and nature of the arguments he or she made below that were considered by the trial court in rendering its ruling. Thornton v. State, 2014 Ark. 113, 2014 WL 1096263 (per curiam). We will not consider new arguments raised for the first time on appeal or consider factual substantiation added to bolster the allegations made below. Id.; see also Bryant v. State, 2013 Ark. 305, 429 S.W.3d 193 (per curiam); Hogan v. State, 2013 Ark. 223, 2013 WL 2295431 (per curiam).
Appellant’s final point on appeal concerns counsel’s performance during voir dire and closing arguments. Appellant argues, as he did in the Rule 37.1 petition, that the prosecutor made comments during voir dire and closing arguments, which tended to shift the burden of proof to the defense, and that counsel failed to effectively assist appellant at these stages of the trial. The burden is entirely on the petitioner in a Rule 37.1 proceeding to provide facts that affirmatively support the claims of prejudice. Payton v. State, 2011 Ark. 217, 2011 WL 1805340 (per curiam). Neither conclüsory statements nor allegations without factual substantiation are sufficient to overcome the presumption that counsel was effective, and such statements and allegations will not warrant granting postconviction relief. Id. To demonstrate prejudice as a result of counsel’s failure to object, appellant must have submitted facts to support the proposition that counsel could have raised a specific meritorious argument and that failing to raise a specific argument would not have been a decision supported by reasonable professional judgment. Cunningham v. State, 2013 Ark. 304, 429 S.W.3d 201 (per curiam).
Appellant’s claim that counsel was ineffective in failing to object to the prosecutor’s statements during voir dire is not supported by the record. As the circuit court found, the trial record reflects-that the prosecutor’s explanation of the reasonable-doubt standard was not improper and that the jury was instructed by the court on the appropriate burden of proof and its definition. Jurors are presumed to comprehend and follow court instructions, and appellant has offered nothing in his argument on appeal to overcome this presumption or to demonstrate prejudice beyond a conclusory statement. Gwathney v. State, 2009 Ark. 544, 381 S.W.3d 744 (citing Kelly v. State, 350 Ark. 238, 85 S.W.3d 893 (2002)).
Likewise, appellant’s claim that counsel was ineffective in failing to object to the prosecutor’s statements during closing arguments is also not supported by the record. The trial record reflects that counsel did indeed object to statements made by the prosecutor during the State’s closing argument and rebuttal. Specifically, counsel objected on the ground that said statements impermissibly shifted the burden of proof to the defense. To the extent that appellant argues that counsel was ineffective in failing to raise further objections, the matter was settled in appellant’s direct appeal. The Arkansas Court of Appeals noted that the prosecutor’s statements were not impermissible because they did not shift the burden of proof. Nalls, 2013 Ark. App. 183, 2013 WL 1010414. A proceeding under Rule 37.1 does not allow a petitioner the opportunity to reargue points that were decided on direct appeal. Sartin, 2012 Ark. 155, 400 S.W.3d 694 (citing Goodman v. State, 2011 Ark. 438, 2011 WL 4840650 (per curiam)).
Based on the Strickland standard, we cannot say that counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. As stated, this court will uphold the judgment of the circuit court denying postconviction relief unless the appellant demonstrates that the judgment was clearly erroneous. To establish that the circuit court erred in finding that counsel was not ineffective, the petitioner has the burden of overcoming the presumption by identifying specific acts and omissions that, when viewed from counsel’s perspective at the time of trial, could not have been the result of reasonable professional judgment. Thompson v. State, 2013 Ark. 179, 2013 WL 1776683 (per curiam); see also Moore v. State, 2014 Ark. 231, 2014 WL 2019280 (per curiam). Appellant has not met that burden. Accordingly, the circuit court’s order is affirmed.
Affirmed.
. The first three counts arose out of three separate controlled buys occurring on January 25, 27, and February 1, 2011, between appellant and a confidential informant. The fourth count arose out of a controlled buy occurring on February 14, 2011, between appellant and another confidential informant. The jury was unable to reach a verdict on the first three counts, resulting in a mistrial.
. Under Arkansas Rule of Criminal Procedure 22.2, a defendant has a right to sever criminal charges that are joined solely on the ground that the charges are of the same or similar character and do not constitute charges that are part of a single scheme or plan.
. On appeal, appellant does not specify the statements to which he contends counsel should have objected. In the Rule 37.1 petition, however, appellant alleged that the prosecutor’s explanation during voir dire of the meaning of reasonable doubt and the prosecutor's comments during closing arguments regarding the lack of evidence put on by the defense were improper and should have been objected to by counsel.
. During voir dire, the prosecutor explained what would not constitute reasonable doubt via an analogy. Specifically, the prosecutor elaborated that reasonable doubt would not arise if it were contended by the defense that drugs were planted on a person by aliens if evidence was not also introduced to support that contention. | [
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Smith, J.
The Hot Springs Street Railway Company prays a writ of prohibition to restrain the presiding judge of the judicial circuit, of which Cleveland County is a part, from proceeding with the trial of certain causes now pending in Cleveland County, in each of which it was made a party defendant.
A motion was filed in the court below to quash the summonses which had been issued and served in these cases, upon which motion testimony was heard. The undisputed testimony appears to he as follows: Louis Cone, a resident of Pulaski County, while driving an automobile in the city of Hot Springs, had a collision with a street ear in that city, and he and two young ladies, who were riding with him, were injured. The young ladies, as well as Cone himself, resided in Pulaski County. Complaints were prepared to be filed in the Cleveland Circuit Court by the attorney for each of these young ladies against both Cone and the street car company, and during the day upon which they were filed service was had upon Cone under the following circumstances: The complaints were filed with the clerk of the Cleveland Circuit Court in the morning, and the plaintiffs’ attorney advised a deputy sheriff that the defendant, Cone, would be at the court house that afternoon. The defendant, Cone, drove up to the courthouse gate that afternoon, accompanied by another man whom the officers thought was Cone’s brother. This man came to a deputy sheriff, and told the officer that the defendant, Cone, was in his car. The officer did not know either party, but the man in the car was introduced to him as Louis Cone, and he served the summonses on him as he had been directed by the plaintiffs’ attorney in the morning. The complaints upon which these summonses had issued alleged that the young lady plaintiffs had been injured through the concurring negligence of the street car company and Cone, and prayed judgment against each of them.
Cone filed an answer, in which he denied that he had been guilty of any negligence which had caused or contributed to the injury. In connection with this answer, he filed a cross-complaint against the street car company, in i^hich he alleged that he had been injured himself through the negligence of the company, and he prayed judgment against the company for $10,000 to compensate the injury. .
The court declined to quash the summonses in the cases of the two young ladies, hut did dismiss the cross-complaint of Cone against the street car company.
Thereupon, pleadings were filed in this court to prohibit the circuit court of Cleveland County from proceeding with the trial of the two original suits.
It was and is insisted that, as the street railway company is located only in the city of Hot Springs, in Garland County, and does not run through or into Cleveland County, any suit against it was local under § 1172, Crawford & Moses ’ Digest, and can he maintained only in Garland County, although the street car company was sued in conjunction with a defendant who was served with process in Cleveland County. We do not decide this question, as the writ of .prohibition will he awarded upon another ground.
The respondents defend the action of the court in refusing to quash the service and seek to sustain the right of the circuit court to proceed with the trial of the causes under the authority of § 1178, Crawford & Moses’ Digest, which reads as follows: “Where any action embraced in § 1176 is against several defendants, the plaintiff shall not be entitled to judgment against any of them on the service of summons in any other county than that in which the action is brought, where no one of the defendants is summoned in that county or resided therein at the commencement of the action, or where, if any of them resided or were summoned in that county, the action is discontinued or dismissed as to them, or judgment therein is rendered in their favor, unless the defendant summoned in another county, having appeared in the action, failed to object before the .judgment to its proceeding against him.”
It is insisted that, as Cone was found in Cleveland County and served with summonses there, the plaintiffs have the right to compel his codefendant, the street car company, to answer in the same county, inasmuch as the plaintiffs alleged their injuries were occasioned by the concurring negligence of Cone and that of the street car company.
We do not concur in the view that § 1178, Crawford & Moses’ Digest, above quoted, conferred jurisdiction upon the Cleveland County Circuit Court under the circumstances stated. This section does permit a defendant to be sued, not only in the county of his residence, but in another county in which he is found and is served with process. But this means, of course, where one is found and served with process in the usual and ordinary course of circumstances, and not where service was had col-lusively, as was done in the instant case.
The law of the subject was declared in the ease of Wernimont v. State, 101 Ark. 210, 142 S. W. 194. The opinion in that case discussed the manner of obtaining service by summons, and, after referring to § 6074, Kirby’s Digest, which is identical with § 1178, Crawford & Moses’ Digest, above quoted, says: “If the transaction is colorable and collusive, and the resident person not a defendant in fact and in good faith, then service of process of summons upon him would be incapable of laying the foundation for jurisdiction of the court over nonresident defendants served with summons in other counties. Upon such facts being made known to the court, it would be its duty to quash the service of summons upon such nonresident defendants. Such defendants cannot be dragged from the forum of their residence by any sham or contrivance to evade suit against them in a court in the county where they reside. Such a perversion of the court’s process is a fraud practiced upon the court, which should receive its condemnation upon being made aware of it.”
We think the conclusion is inescapable; in fact, it does not appear to be seriously denied that Cone was “found” and summoned in Cleveland County in accordance with a prior arrangement, to which he was a party, to that effect. It was the intention of all parties concerned to confer jurisdiction upon the Cleveland Circuit Court, although no person connected with the lawsuit in any capacity resided there, and -to confer jurisdiction, not only of the suits of the young ladies plaintiff against the street car company, hut to confer jurisdiction also of Cone’s own suit. It is true the court dismissed Cone’s cross-complaint, but it is true also that the filing of this cross-complaint shows the collusive character of the proceeding. The courts should not lend their aid to such practices, and no statute requires them to do so.
The writ of prohibition will therefore be granted as prayed, restraining the Cleveland Circuit Court from proceeding further in the causes. | [
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Butler, J.
Silbernagel & Company, the appellant, is a wholesale grocery and furnishing concern with its prin cipal place of business in Pine Bluff. In 1930 it bad a customer, H. B. Chambliss, to whom it had advanced money and merchandise, who owed a balance at the end of that year. Chambliss rented a farm from the appel-lees, Ed Taliaferro and J. H. Taliaferro, at the beginning of the year 1931, at an agreed rental of $1,200. Cham-bliss applied to the appellant to furnish supplies to make his crop, and the appellant declined to do so unless the landlords would waive the lien for rents. At that time the appellant prepared a written waiver and gave it to Chambliss to obtain the signature of the landlords. The landlords declined to sign because there was no limit fixed in the waiver as to the amount of indebtedness, and thereupon the appellant, acting through its agent, wrote an additional clause at the end of the waiver limiting the amount of the waiver to the sum of $3,000. The waiver was then returned to the landlords, who signed the same, and which in its entirety is as follows:
“In consideration of Silbernagel'& Company, Pine Bluff, Arkansas, furnishing cash, merchandise, supplies, etc., to H. B. Chambliss, for purposes of making crop for the year 1931 on lands belonging to me in Lincoln County, Arkansas, and described herein, I herewith agree to waive to Silbernagel & Company any and all amounts that may be due me for rents from said lands for year 1931, until such time as Silbernagel & Company shall have been paid any and all amounts due them by said H. B. Chambliss. I further agree not to furnish said H. B. Chambliss any cash or supplies myself, and any advances so made shall likewise be waived to Silbernagel & Company. The lands mentioned herein are described as follows: (Here follows land description.)
“Signed.
“This agreement entered into with Silbernagel & Company, excepting that the amount waived by me shall in no event exceed the total sum of $3,000, and is limited by me to that amount.
“J. H. Taliaferro.”
After a considerable part of the crops had been harvested and turned over to the appellant, the landlords brought this suit to recover rents due by Chambliss, alleging that the amount advanced to make the crop had been paid out of the cotton already appropriated, and that the appellees were entitled to the remainder as rent, and that the appellant was attempting to include an old indebtedness of .Chambliss. The appellant answered, alleging that the waiver signed by the landlords was intended to, and did, include the indebtedness that Cham-bliss owed for the year 1930.
There is little, if any, dispute in the evidence. It tended to establish that the landlords and the appellant had never discussed the waiver, but that Chambliss had acted as the intermediary, and that neither he nor any one representing the appellant informed the landlords that Chambliss, at the time the waiver was signed, was indebted to the appellant for a balance on an old account. Witnesses for the appellant testified that it was the intention of the appellant and Chambliss that the waiver should extend, not only to the advances made for the year 1931, but to cover the balance for the year 1930, and that the balance for the year 1930 was covered and the inducement for appellant to furnish Chambliss supplies to make the crop of 1931. This understanding between Chambliss and the appellant, however, was never communicated to the landlords, and they did not know of any such understanding at the time they signed the waiver. They testified that they thought they were signing a waiver only as to the supplies advanced to make the crop of 1931, and that the sum of $3,000 named was for the purpose of limiting the advances of 1931 within that sum.
The chancellor found that the landlords, appellees, waived the rents only for the amounts furnished the tenant in 1931, and did not in fact waive any part of their rents for the past due account which Chambliss owed the appellant. He further found that, at the time of the rendition of the decree, there was a balance of $131.99 due the appellant for supplies for the year 1931 which it was entitled to recover, and ordered the crops which had been taken charge of by a receiver to be sold and the proceeds first applied to the payment of the balance found to be due and the remainder applied to the payment of rents due the appellees.
We think a fair interpretation of the waiver in the light of the attendant circumstances fully justified the conclusion reached by the trial court. The language of the waiver discloses the purpose for which appellees signed the contract, and it is fairly to be inferred that, when they waived their rents for all amounts due by Chambliss and agreed not to furnish him anything themselves, they had in mind that the indebtedness referred to was that to be incurred for the purpose of making the crop for the year 1931, as that was the reason for which they were signing the waiver. The undisclosed intention of the appellant and Chambliss could not, and did not, bind the landlords. However, if the contract of waiver is ambiguous and calls for construction, we must construe it most strongly against the appellant, as the contract of waiver was prepared by it. Leslie v. Bell, 73 Ark. 338, 84 S. W. 491; Wright Chevrolet Co. v. Kent, 181 Ark. 923, 28 S. W. (2d) 700.
Affirmed. | [
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Mbhaeey, J.
W. S. Davidson and J. R. Crowe, on May 10, 1930, entered into a contract to exchange lands. The contract provided that Davidson was to convey to Crowe, free of all incumbrances, certain lands in Mississippi County, Arkansas, and Crowe agreed to convey, and did convey, to Davidson certain lands in Prairie County, Arkansas, subject to a government loan in the sum of $7,000, which Davidson assumed and agreed to pay. The contract also provided that Crowe was to retain possession of the Prairie County land for the years of 1930 and 1931, rent free, and further, as a part of the consideration, Crowe agreed to lease the Prairie County land for the year 1932 for the sum of $3,600, and agreed to execute and deliver a note for this amount. There are several other paragraphs in the contract, but it is unnecessary to set them out here.
Crowe did not pay the $3,600, but sometime in October, 1930, Davidson filed his complaint in the chancery court of Mississippi County against J. R. Crowe and Mrs. J. R. Crowe, and, at the time of filing the suit Davidson filed lis pendens notice, setting forth the nature of his suit and his effort to secure lien on the 160 acres of land in Mississippi County, which he had deeded to Crowe.
At the time complaint was filed, and for several years prior thereto, J. R. Crowe and Mrs. J. R. Crowe had been citizens and residents of Stuttgart, in Arkansas County, and summons was issued by the clerk of Mississippi County, directed to the sheriff of Arkansas County.
On November 23, 1932, the petitioners appeared specially and filed a motion to quash the service. In said motion they did not enter their general appearance, hut appeared specially for the purpose of filing the motion to quash the service. In said motion they alleged that they are both citizens and residents of the northern district of Arkansas County, Arkansas, and were citizens and residents of Arkansas County at the time of filing the suit; that they were served by the sheriff in Arkansas County, and that the court acquired no jurisdiction over them by virtue of the service of the summons, and that the court had no jurisdiction of the cause of action, and prayed that the service of summons upon them be quashed, and the cause dismissed.
The court heard the motion, overruled the same, and required the defendants to answer within 20 days. They excepted to the ruling of the court. Petitioners then filed their petition in this court, praying that summons and service thereof be quashed, and that said court be prohibited from proceeding further therein.
It is the contention of the petitioners that the suit filed in Mississippi County by respondent is a suit to collect $3,600 as rent, and is a transitory action, and must be brought in the county in which the defendant or one of several defendants resides or is summoned. They rely on § 1176 of Crawford & Moses’ Digest, which reads as follows: ‘ ‘ Every other action may be brought in any county in which the defendant or one of several defendants resides or is summoned.”
If this were a transitory action and no right to a lien on the land in Mississippi County existed, this section would apply.
Davidson and Crowe agreed to an exchange of lands. Davidson assumed and agreed to pay an indebtedness of $7,000, which was a lien on the lands in Prairie County. Crowe agreed to keep the lands and rent them for the year 1932 for $3,600. The contract, however, expressly states that, as a part of the consideration of this exchange of properties, the party of the second part agrees to rent or lease the land from the party of the first part for the year 1932 for $3,600. In the suit brought in the Mississippi court, the plaintiff alleged that this $3,600 was a part of the consideration, that it had not been paid, and that he was entitled tof a lien on the lands in Mississippi County to secure the payment. If this was a part of the consideration entitling the plaintiff in the case to a lien on the lands in Mississippi County, the court had jurisdiction.
We have held: “It is well settled that, if the existence or nonexistence of jurisdiction depends on contested facts which the inferior court is competent to inquire into and determine, a writ of prohibition will not be granted, although the superior court should be of the opinion that the claims of fact had been wrongfully determined by the lower court, and, if rightfully determined, would have ousted the jurisdiction.” Merchants’ & Planters’ Bank v. Hammock, 178 Ark. 746, 12 S. W. (2d) 421.
The chancery court, in the action brought in Mississippi County, had jurisdiction of the subject-matter, and it had jurisdiction to inquire into the fact whether the $3,600 was as alleged in plaintiff’s complaint, a part of the consideration for the Mississippi County land, entitling plaintiff to a lien on said land.
We must take the cause of action as it was alleged in the original complaint. Otherwise, we would try the merits of the controversy for the purpose of determining whether or not we have power to try them.
If the allegations in the complaint are true, the court had jurisdiction, not only of the subject-matter, but of the person of the defendants; and, since the allegations in the complaint depend upon the proof, the chancery court bad a right to pass upon the facts, and the writ of prohibition is denied.
See Roach v. Henry, ante p. 884 (Rep.). | [
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Smith, J.
A citizen of Texas, who bad both a savings and a «becking account with the American Exchange Trust Company in Little Rock, drew checks, payable to the Valley State Bank of Harlingen, Texas, against these deposits for the total amount thereof, and delivered these checks for collection to the Valley State Bank. The checks were sent by the Texas bank direct to the American Exchange Trust Company, accompanied by a notation: “Por collection and return.” ' The drawee bank (American Exchange Trust Company) accepted the checks and remitted to the Texas bank in payment thereof its drafts on a Dallas, Texas, bank, with which it had deposits in excess of the drafts. Upon receipt of these drafts on the Dallas bank, the Valley State Bank paid the amount of one of the drafts to the original drawer — the Texas citizen — and gave her credit upon its books for the amount of the other draft upon the assumption that the exchange on the Dallas bank would be paid. But, upon presenting to the Dallas bank the drafts drawn upon it by the American Exchange Trust Company, payment was refused by the Dallas bank for the reason that the Dallas bank had information that the American Exchange Trust Company had closed its doors.
• The checks drawn by the Texas citizen on the American Exchange Trust Company were dated November 10 and 12, 1930, and were received by the American Exchange Trust Company through the mail at its- banking house in Little Rock on November 14, 1930, and on that day the exchange on Dallas was remitted to the Valley State Bank, and received by the latter on November 17, 1930, and disposed of as above stated. The American Exchange Trust Company became insolvent and closed its doors on November 17, 1930, of which fact the Dallas bank was advised, and for that reason it refused payment of the drafts drawn on it by the American Exchange Trust Company,, although it had on hand funds belonging to the American Exchange Trust Company in excess of the drafts.
The assets of the American Exchange Trust Company have been taken over and are being wound up by the State Bank Commissioner, with whom the Yalley State Bank filed its claim for allowance as a prior or preferred one. The court below disallowed the claim as a prior or preferred one, but did allow it as a common claim, and this appeal is from that decree. The question for decision is therefore whether, under the facts stated, the Yalley State Bank, as the holder and owner of the remittance drafts, is a preferred creditor of the American Exchange Trust Company?
The answer to this question, and the one which accords with the previous holdings of this court, appears in the 1931 edition of Michie on Banks and Banking, vol. 3, page 321, where it is said: “Although probably contrary to the weight of authority, the modern trend of decisions seems to support the rule that, where paper is sent for collection and remittance, the collecting bank, as agent of the sender, holds the amount collected in trust so as to give a right of preference therefor upon its insolvency; and this is true, even though the collecting bank collects the paper by charging it against the account of the individual drawer and issues its draft on another bank in favor of the sender for the amount.”
In the case of Rainwater v. Federal Reserve Bank of St. Louis, 172 Ark. 631, 290 S. W. 69, it was held (to quote a headnote) that “The claim of the Federal Reserve Bank against the Bank Commissioner in charge of a bank which made collections for claimant and had funds sufficient to honor drafts sent as remittance of collections, which were not paid, owing to the bank being closed, held a preferred claim, since the collecting bank was the claimant’s agent and held the money collected in trust.”
In reaching this conclusion, we recognized and stated in the Rainwater case, supra, that the authorities were not harmonious, but we there followed our own earlier case of Darragh Co. v. Goodman, 124 Ark. 532, 187 S. W. 673, which had announced the controlling principles.
The annotated eases of Bank of Poplar Bluff v. Millspaugh, 313 Mo. 412, 281 S. W. 733, 47 A. L. R. 754, and Shull v. Beasley, 49 Okla. 106, 209 Pac. 149, 77 A. L. R. 465, collect the leading cases on the subject and reflect the conflicting views of the courts.
Counsel for appellee Bank Commissioner endeavors to distinguish the Rainwater case, supra, from the instant case by pointing out that in the Rainwater case the remittance check transmitted the collection pursuant to a permanent arrangement existing between the banks. But this distinction is not of controlling importance. The remittance in the instant case was made pursuant to a custom, so uniform and well-established among banks, as to be as binding as a permanent arrangement; in fact, the banking custom, pursuant to which remittance was made, was, in effect, a permanent arrangement, because it conformed to a custom among banks so general and well known and so long established that parties will be presumed to have contracted with reference thereto.
We find nothing in the provisions of act 107 of the Acts of 1927, page 297, leading to a different conclusion. This act deals with and makes classification of the creditors of insolvent banks which have been taken over by the State Bank Commissioner.
In the recent case of Taylor v. Union Trust Company, 185 Ark. 128, 46 S. W. (2d) 18, the facts were as follows: On Saturday, November 15, 1930, the Union Trust Company delivered to the American Exchange Trust Company certain drafts with bills of lading attached, of which it was the owner, for collection and remittance, and received in payment therefor a check drawn by the American Exchange Trust Company upon itself for the amount of the drafts, which check was delivered to the messenger of the Union Trust Company. Before the check could be presented'for payment on the following Monday — November 17 — the American Exchange Trust Company closed its doors; but the chancery court held that the check was a preferred claim under the act of 1927, supra. In affirming that holding it was there said: “The proceeds of the col lection were never the property of the collecting bank. It only held the same in trnst for the appellee, and the check delivered to the messenger of the appellee was nothing more than the symbol of the cash so held, issued according to the custom of banks and accepted, not in lieu of the money, but only as a token of it, and by a presentation of which the cash might be obtained. In other words, it was the vehicle of the transfer of the cash spoken of in subdivision 7, supra, as ‘a remittance of the said bank,’ and as it represented the proceeds of a collection made by the collecting hank by charging the different items collected against the accounts of the depositors — drawees of the drafts — it created a preferred claim, although the transaction did not increase its cash assets, because the drafts with the documents attached had been surrendered to the drawees upon their collection, and therefore could not be restored to the appellee and it be placed in the same condition with respect thereto as it had been before. As stated by the appellee, it is just this state of case where the security could not be restored that the Legislature gives as a substituted security a preference in the assets of the insolvent institution.
“The conclusion reached finds support in the recent cases of Taylor v. Corning Bank & Trust Co., 183 Ark. 757, 38 S. W. (2d) 557, and Taylor v. Dermott Grocery & Commission Co., 184 Ark. 947, 45 S. W. (2d) 23, and the case of Taylor v. First National Bank of De Queen, supra, (184 Ark. 947, 43 S. W. (2d) 1078).”
We conclude therefore that the chancellor erred in refusing to allow the claim of the Valley State Bank as a preferred claim, and that decree is reversed, and the cause is remanded with directions to so allow and class it.
McHaNey, J., dissents. | [
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Smith, J.
This appeal is from a judgment sentencing appellant for a term of twenty-one years in the penitentiary upon a conviction for murder in the second degree. Only one assignment of error appears to be of sufficient importance to require discussion, and that is, whether the testimony is legally sufficient to support a conviction for that crime.
There is no serious conflict in the testimony, which is to the following effect: Deceased, accompanied by Ott Reynolds and a son of Ott Reynolds, came to appellant’s home early in the evening for the purpose of visiting one Jack Wilson, who was there at appellant’s home suffering from a burned arm. Ott Reynolds is a cousin of appellant.
Appellant heard a noise at his barn, and took his shotgun and went to the barn to investigate. When he returned from his investigation, he found deceased and Ott Reynolds and the latter’s son in the house. The visitors did not go into Wilson’s room, but remained in the room where appellant and the members of his family and the wife of Mr. Wilson were. There was a small dog in the room, concerning which deceased made a remark so vulgar that only a man maudlin drunk would have made it. Deceased also injured the dog by trying to break its leg. Ott Reynolds enticed deceased out of the room and endeavored to take him home. Deceased refused to go, and declared he would re-enter the room. To prevent him from doing so, the door was closed and latched. The door consisted of four planks, held together by two braces or cross-pieces, with a wooden latch in the center. Deceased shook and kicked the door, and continued kicking it until he kicked it open, and in doing so one of the planks of the door had been kicked loose from the crosspieces to which it had been fastened. The occupants of the house were screaming while deceased was kicking the door. The testimony is confusing as to whether deceased attempted to enter the room immediately after kicking the door open, or whether he kicked it open when he first left the house. In any event, deceased returned to the house, after having been taken away from it by Ott Reynolds, and was warned several times by appellant not to re-enter. Deceased was shot with, a shotgun, and fell on the porch just in front of the door, where he died in a short time.
For the reversal of the judgment, it is insisted that the undisputed evidence shows that appellant killed deceased in defense of his home and the inmates therein, from the aggression of one who was attempting, by violence, to enter it.
On behalf of the State, it is pointed out that all of the witnesses to the killing who so testified were either relatives or friends of the defendant, and it is insisted that the presumption arising from the proof of the killing under § 2342, Crawford & Moses’ Digest, was not overcome by this testimony.
This section reads as follows: “The killing being proved, the burden of proving circumstances of mitigation that justify or excuse the homicide shall devolve on the accused, unless by the proof on the part of the prosecution it is sufficiently manifest that the offense. committed only amounted to manslaughter, or that the accused was justified or excused in committing the homicide. ’ ’
This statute has been construed in numerous cases, and the case of Brock v. State, 101 Ark. 147, 141 S. W. 756, is exactly in point on the application of the statute to the facts of this case. In the Brock case, supra, the court read the statute as an instruction in the case, and prosecuting counsel, in commenting upon the statute, said: “The instruction means that, the killing being proved, the burden of proving that he was justified in doing it is on the defendant; and°if the defendant does not prove to your satisfaction that he is not guilty, you must convict him of murder. ’ ’ The trial court overruled an objection to this argument, aDd in holding that this was error, this court said: “The remarks of the counsel, sanctioned by the court in its refusal to sustain an objection to them, were a misinterpretation of the instruction that had been given by the court, and were an incorrect statement of the law. It was a statement, too, in direct conflict with the instruction upon which the attorney was commenting.
“The court correctly instructed the jury in the instruction that the burden rested upon the State to prove the crime charged, and that this burden did not, at any time, shift to the defendant, but, according to the construction which the attorney placed upon the instruction, with the sanction of the court, the jury were told in effect that, after the killing had been proved by the State, then the. burden shifted to the defendant to prove that he was not guilty of the crime charged, and that he must make such proof, too, to the satisfaction of the jury. This was well calculated to confuse and mislead the jury, and to cause them to fail to understand the true meaning of the instruction.
“The killing being proved, unless the evidence on the part of the State shows circumstances of mitigation, justification, or excuse, it devolves upon the appellant if he relies upon such circumstances to show them, but the burden is still on the State to show that the defendant is guilty of every grade or degree of crime included in the indictment. The burden, in other words, in a charge for murder, never shifts to the defendant, but always remains on the State. Cogburn v. State, 76 Ark. 110, [88 S. W. 822].”
Other cases to the same effect are as follows: Scoggin v. State, 109 Ark. 510, 159 S. W. 211; Johnson v. State, 120 Ark. 193, 179 S. W. 361; Parsley v. State, 148 Ark. 518, 230 S. W. 587; Williams v. State, 149 Ark. 601, 233 S. W. 776; Black v. State, 171 Ark. 307, 284 S. W. 751; Walker v. State, 100 Ark. 180, 139 S. W. 1139; Maddox v. State, 155 Ark. 19, 243 S. W. 853.
The burden was therefore upon the State to prove that appellant was guilty of murder, notwithstanding this statute, and we do not think the testimony was sufficient for that purpose. On the other hand, we are unable to say, as a matter of law, that the testimony excuses and justifies the killing. There was no testimony of previous ill-will between the parties. Deceased was found to be unarmed after his death, but the testimony does not show whether appellant knew this. Appellant probably knew, or should have known, that neither he nor the other inmates of the house were in danger of great bodily harm from deceased, in view of the number of persons present to restrain him, but deceased’s conduct was such as to arouse the anger of appellant to an irresistible point.
We therefore feel constrained to reverse the judgment sentencing appellant to a term in the penitentiary for murder in the second degree, and to cure that error by reducing the grade of the homicide tó voluntary manslaughter.
The judgment of the court below will therefore be reversed, and the judgment will be modified by reducing the conviction to voluntary manslaughter, and a sentence of seven years, the highest punishment for that offense, is hereby imposed. Blake v. State, ante p. 77. It is so ordered. | [
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Humphreys, J.
The sole question presented on this appeal is whether the trial court erred in instructing a verdict for appellee upon the ground that appellant had not established by any substantial testimony that he was engaged in interstate commerce at the time he claimed he was injured. By so instructing the jury, the trial court eliminated all issues joined on liability, assumed risk, contributory negligence, etc., holding that the Miller County Circuit Court had no jurisdiction to try and determine the cause under the Federal Employers’ Liability Act, upon which act appellant sought to recover.
The testimony, viewed in its most favorable light to appellant, showed that he received the injury complained of while engaged in inspecting and repairing a switch engine, numbered 516, constantly theretofore used, and was thereafter to be used, indiscriminately in making and breaking up trains and in placing cars employed in interstate and intrastate commerce in the yard owned by ap- pellee; that said engine was removed into the roundhouse situated in the yard for the federal monthly routine inspection, and for such repairs as the inspection might disclose to he necessary under order of the United States Government: that the engine needed only the removal of the main throttle and draw-bar for inspection and the tightening of nuts, binders, etc., and the packing of valves, which would require about a day to do after beginning the inspection; that the engine was in the roundhouse three days altogether, and was returned to the switch yard for its accustomed use after being inspected and repaired; that a report of the inspection and repairs made was mailed to the Interstate Commerce Commission; that the injury complained of was received while the engine was being inspected and repaired.
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It was not a road engine removed from an interstate haul indefinitely or for any considerable length of time for repairs, nor was it a disabled, broken-down engine which was to all intents and purposes out of commission.
The facts stated above differentiate the instant case from the cases of Minneapolis & St. Louis Railroad Company v. Winters, 242 U. S. 253, 37 S. Ct. 170, and Hines, Director General, v. Industrial Accident Commission, 184 Cal. 1, 192 Pac. 859, 14 A. L. R. 720, relied upon by ap-pellee for an affirmance of the judgment.
The judgment of dismissal is reversed, and the cause is remanded for a new trial of the case upon its merits under the Federal Employers’ Liability Act. | [
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Humphreys, J.
This is an appeal from a decree overruling exceptions to the final report of the receiver filed in the cause in the chancery court of Franklin County,. Ozark District. The report was filed subsequent to the final decree in the case on the merits rendered on the 30th day of March, 1931. Exceptions to the final report of the receiver were filed July 17, 1931, and were heard and overruled by the court on December 18, 1931. The transcript of the record necessary to determine the correctness of the trial court in overruling the exceptions to the final report of the receiver, from which ruling an appeal was prayed oilt of this court, was lodged with the clerk of the Supreme Court on June 8, 1932.
Appellee has filed a motion to dismiss the appeal because not perfected within six months after the final decree overruling the exceptions to the receiver’s report. This motion is not well taken, for the transcript was lodged here on June 8, 1932, or within six months from December 18, 1931, the day on which the exceptions were overruled by the trial court.
Appellee also has filed a motion to dismiss the appeal because the transcript does not contain the entire record made in the case below. It was only necessary to embrace in the transcript all the record relating to and bearing upon the correctness of the court’s decree in overruling the exceptions to the final report of the receiver.
The exceptions challenged allowances made to the receiver by the former chancellor at chambers at Fort Smith in vacation without notice to appellant or without having taken the matter of such allowances under consideration in term time for determination in vacation.
The record reflects that the receiver was appointed on application of parties who had no interest in or claim to the property he took into his possession, and that appellants intervened, and on the trial of the intervention on the merits obtained a decree for the property or the proceeds thereof in the hands of the receiver. In accounting for the funds in his final report, the receiver claimed and requested the court to allow him credits for the amounts allowed him by the former chancellor at chambers at Ft. Smith, which items or allowances were excepted to by appellant. The court overruled appellant’s exceptions and allowed the receiver credit for the items claimed, consisting of a fee to himself and to the attorneys who secured his appointment and certain court costs. The authority under which the chancellor made the order herein involved is said to be conferred by §§ 2190 and 2191 of Crawford & Moses ’ Digest, but such authority is not given by said sections. If the claim for these allowances he treated as an application to the chancery court for them, it was improper to make the allow- anees out of the fund in the hands of the receiver, for the fund had been adjudged to appellant in the trial of the intervention. To make such allowances -would amount to paying debts incurred by one party out of the property belonging to another.
On account of the error indicated, the judgment is reversed, and the cause remanded with directions to sustain the exceptions and disallow the claim of the receiver. | [
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McHaNBy, J.
This is a special statutory proceeding brought under the provisions of act 135, Acts 1927, p. 452, regulating the granting of franchises for toll bridges, turnpikes or causeways. Section 3 of the act reads as follows: “Upon application being made to the county court for the granting of a franchise or privilege as herein provided, the applicant shall give notice by publication in some newspaper in the county or counties where said toll bridge, turnpike or causeway is situated, having a bona fide circulation therein once a week for two weeks, setting forth the fact that application has been made for the granting of such franchise or privilege, giving the name of the stream to be bridged or the location of the turnpike or causeway, and the date when said petition will be heard by the county court, which notice may be in the following form, to-wit:
“FORM OF NOTICE
“Upon the date named in said notice, unless the hearing is continued for cause, the court shall hear all inter-, ested parties, and, in the event said franchise or privilege is granted, an order of the county court shall be made, fixing the rates or tolls to be charged, which shall be entered of record.” ■
The point involved in this appeal is the sufficiency of the notice under the above statute.
On November 28, 1930, a notice was published in the Earl Enterprise of Earl, Arkansas, to the effect that appellant has made application to the county court of Crittenden County, Arkansas, for a franchise to operate a toll bridge over the Mississippi bottoms in said county, and that same would be heard by the county court on December 15, 1930. The first publication of the notice was made on November 28th, and the application or petition for franchise was not filed until December 1, 1930. Thereafter, the same notice was published on December 5th and 12th. At the hearing on December 15th, 256 protestants appeared and objected to the granting of the franchise. One of the grounds of protest was that no notice of the application had been published as required by law. The county court overruled the protest, granted the franchise, and an appeal was prosecuted to the circuit court, where it was held “that the first publication of the notice on November 28, 1930, was ineffective for the reason that the application was not filed with the clerk of the county court until December 1, 1930.” The judgment of the county court granting the franchise was adjudged to be null and void. This appeal is from that order.
We think the court correctly so held. No notice could be given until application had been made to the county court as provided in the statute. The publication of the notice on November 28th was without effect because at that time no application had been made to the county court. The publication of the notice on December 5th and 12th was insufficient to give two weeks ’ notice of the application, because two weeks had not elapsed between the date of the first effective publication and the date of the hearing. Strict compliance with the statute relative to notice must be had in order to give the county court jurisdiction, this being a special statutory proceeding and the jurisdiction of the court being dependent upon strict compliance therewith. It would make no difference if all the people in the county had appeared to protest the application, because the jurisdiction did not depend upon the appearance of the protestants, but upon compliance with the provisions of the statute. Nevius v. Reed, 176 Ark. 903, 5 S. W. (2d) 327. As said by Judge Battle in Gibney v. Crawford, 51 Ark. 34, 9 S. W. 309: “The statute having prescribed the manner in which the notice should be given, it could not be given legally in any other man ner.” In Townsend v. Martin, 55 Ark. 192, 17 S. W. 875 we held that, where the statute prescribes that the list of delinquent lands shall be published “weekly for two weeks,” the first insertion of the notice should be made two full weeks before the day of sale, and failure to comply with the statute in this respect renders the sale void. There are many cases in our reports to the same effect, one of the latest being Giese v. Jones, 185 Ark. 548, 48 S. W. (2d) 232.
Since two full weeks did not elapse between December 5, the date of the first publication, and December 15, the date of the hearing, notice was not given “once a week for two weeks” as provided in the statute, the county court had no jurisdiction to make the order granting the franchise, and the circuit court correctly held it null and void.
Affirmed. | [
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Humphreys, .J.
Appellee instituted suit against appellant in the circuit court of Hot Spring County to recover $2,000 for permanent injuries received by bim in an automobile accident on a certificate of insurance issued to bim by appellant under group policy G--2377, issued by appellant to tbe Missouri Pacific Railroad Company, protecting its employees from total disability on account of bodily injury or disease; and to recover $1,000 for tbe loss of an eye in tbe same accident on a certificate of insurance issued to bim by appellant under group policy ADD-501, issued by appellant to tbe same railroad company, protecting its employees against accidental injuries. Appellee alleged that be was totally and permanently injured in an automobile accident on tbe 8th day of March, 1930, before be attained tbe age of sixty years, and, as a result of tbe accident, also lost tbe sight of his right eye, and prayed for judgment in tbe sum of $3,000 and costs, including an. attorney’s fee.
Appellant filed a motion to transfer tbe cause to the United States District Court for tbe Eastern District of Arkansas, alleging’ a diversity of citizenship, and that the amount sued for., including an attorney’s fee, exceeded $3,000. This motion- was denied over the objection and exception of appellant.
Appellant, reserving its objection to tbe jurisdiction of tbe cofirt to try the cause, filed an answer denying the "^^^ierfal allegations of the complaint.
The cause was submitted upon the pleadings and testimony, resulting in a judgment for $3,000 and costs, including an allowance of an attorney’s fee in the sum of $550, from which is this appeal.
The group insurance policies were issued and delivered to the Missouri Pacific Railroad Company and remained in its possession in its general office at St. Louis. They were never in the possession of appellee nor subject to his inspection as far as the record reflects. The certificates were the only documents issued to him under the terms of the major policies. The only provision in the certificates as to either notice or proof of loss is as follows:
“Immediately upon receipt of due proof of loss, the company will pay to the employee, in full settlement of all obligations hereunder the amount set opposite such loss:***.”
Only those protected under group policy G--2377 were eligible for protection under group policy ADD-501. Group policy ADD-501 contained the following provision relative to notice and proof of claim:
“Immediate written notice with full particulars and full name and address of insured employee shall be given by the employer to the company of any accident, injury or loss for which claim shall be made under the terms thereof. Affirmative proof of loss, on forms furnished by the company, must be furnished to the company at its home office, St. Louis, Missouri, within ninety days after the date of the loss for which claim is made.”
Group policy G-2377 and the certificate issued under same provide that indemnity benefits of $2,000 shall be payable only if the insured, before attaining the age of sixty years, has become totally and permanently disabled; and group policy ADD-501 and the certificate issued under same provide that an indemnity of $1,000 shall be paid for the loss of one eye resulting from bodily injuries effected through external, violent and accidental means, independently of all other causes, * * *.”
Tbe facts, stated most favorably to appellee, are as follows:
On March 8, 1930, before appellee attained tbe age of sixty years, be was injured in an automobile wreck. As a result of tbe accident, appellee received a severe injury to bis neck and spine and lost tbe sight of bis right eye. After recovering to some extent from tbe injury to bis neck and spine, be returned to bis work on April 28, 1930, and performed tbe light duties connected with tbe character of work be was employed to do with tbe assistance and aid of bis co-laborers until tbe shops closed down in December, 1930. He was unable to do tbe heavy work connected with bis job. He did not realize tbe serious condition .of bis neck and spine until October, 1931, at which time Dr. Law, of Little Rock, made an X-ray picture of tbe injured parts, which revealed that bis neck bones bad been fractured. Tbe picture showed that there was a compression type fracture of tbe bodies of tbe fifth and sixth cervical vertebrae; that tbe sixth cervical vertebra was crushed and tilted; that there was a dislocation of tbe cervical column; that tbe thoracic and dorsal vertebrae were jammed together; that tbe articulation between tbe vertebrae in tbe lower spine were narrowed and tbe bodies of tbe third and fourth dorsal vertebrae tilted; and that ankylosis bad followed as a result of tbe injuries to tbe spine.
According to tbe testimony of a majority of tbe physicians who were witnesses in tbe case, appellee should never have returned to work and bis neck and spine injuries permanently disabled him from performing bard manual labor. His duties required that he perform labor of that character.
Appellant contends for a reversal of tbe judgment upon the gro.und that tbe trial court erred .in denying its petition-for removal of tbe cause to tbe Federal court. It is argued that to include an attorney’s fee in the amount sued for exceeds $3,000, interest and costs, and in amount makes the cause a removable one under tbe Federal Removal statute (28 USCA 41, 71). This court has ruled otherwise in the case of Mutual Life Insurance Company v. Marsh, 185 Ark. 332, 47 S. W. (2d) 585. In the case referred to it was ruled that an attorney’s fee in cases of this nature must he taxed as costs in compliance with the express terms of § 6155 of Crawford & Moses’ Digest.
Appellant also contends for’a reversal of the judgment on the ground that the undisputed testimony reflects that appellee was not totally and permanently disabled. This court has said that total disability as used in contracts of this character exists when the injury of the insured prevents him from doing all the substantial and material acts necessary to be done in the prosecution of his business, and that common care and prudence would require him, in his condition, not to do. Industrial Mutual Insurance Company v. Hawkins, 94 Ark. 417, 127 S. W. 457, 29 L. R. A. (N. S.) 635, 21 Ann. Cas. 1029; Mutual Benefit Health & Accident Association v. Bird, 185 Ark. 445, 47 S. W. (2d) 812. The testimony in the instant case tends to show that appellee should not have attempted to perform his accustomed duties in the due exercise of common care and prudence. The testimony warranted the submission of the issue of total and permanent disability of appellee to the jury.
Appellant also contends for a reversal of the judgment on the ground that appellee failed to notify appellant within a reasonable time of his total and permanent disability and loss of eye resulting from the automobile accident. It is true, as argued, that he did not notify appellant of the accident and consequent injuries for about nineteen months, but he testified that his failure was due to the fact that the major policy requiring that notice be given was not in his possession or subject to his inspection. The requirement for notice and proof of the injuries was not in the certificate delivered to him. When he obtained information that notice was required, he notified appellant. The question as to whether he gave the notice within a reasonable time was a question for the jury and not the court. The facts in this case bring it within the rule announced in the eases of Concordia Fire Insurance Company v. Waterford, 145 Ark. 420, 224 S. W. 953, 13 A. L. R. 1387, and Missouri State Life Insurance Company v. Barron, ante p. 46.
Under onr view of the case, the issue whether the injury received by appellee in the automobile accident resulted in permanent and total disability and the loss of his right eye, and whether he g’ave appellant timely notice, were questions for determination by the jury under proper instructions. We have examined the instructions and find no conflict in them, and that they correctly announced the law applicable to the facts in the case.
No error appearing, the judgment is affirmed. | [
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Battle, J.
Harve Bruce, Alva Church, Dave Milsaps and Turner Skidmore were jointly indicted by the grand jury of the Pope circuit court for murder in the first degree, which was alleged to have been committed on the 29 th day of August, 1897, in Pope county, in this state, by killing B. F. Taylor. The defendants severed their trials, and Harve Bruce was tried and convicted of involuntary manslaughter, and his punishment was assessed at six months' imprisonment in the penitentiary, and he appealed.
The appellant killed B. F. Taylor at the time and place and by the means alleged in the indictment. Taylor was a deputy marshal of the United States at the time he was killed. At this time he and others under his command were attempting to arrest Bruce, the appellant, and others, for illicitly distilling whiskey, and to capture an illicit distillery. The killing occurred at the distillery. Alva Church and the appellant were there at that time. The appellant had committed an offense by distilling liquor contrary to the statutes of the United States, and was carrying arms, sleeping in the’woods, and avoiding arrest by the United States marshal. At the time Taylor was killed he and his posse eomitatus had approached within twenty-five or thirty steps of Bruce, without his knowledge. The evidence adduced by the state in the trial tended to prove that Taylor commanded Church aud Bruce to surrender, he and those assisting him at the same time presenting arms and advancing, and that Bruce immediately fired his gun several times at them, and killed Taylor, before they had made any attempt to do him violence. On the other hand, the evidence adduced by the appellant tended to prove that Taylor and those with him approached Bruce in a fast trot or run, and commenced firing their guns at him before he had made any resistance.
As Bruce was convicted of involuntary manslaughter, it is unnecessary for us to notice any of the errors complained of, except those which relate to self-defense. If Taylor was attempting to arrest Bruce unlawfully, Bruce had no right to kill him to avoid arrest. If in doing so he did not necessarily act in self-defense, in the protection of his own life or to prevent great bodily harm, he was at least guilty of manslaughter. Mr. Bishop, in his work on Criminal Law, says: -“If one, even an officer, undertakes to arrest another unlawfully, the latter may resist him. He has no protection from his office, or from the fact that the other is an offender. But the doctrine already stated that nothing short of an endeavor to destroy life or inflict great bodily harm will justify the taking of life, prevails in this case, so that, if the person thus being unlawfully arrested kills the aggressor in resisting, he commits thereby the lower degree of felonious homicide called ‘manslaughter.’ Still, in principle, life and liberty stand substantially on one foundation; life being valueless without liberty. And the reason why a man may not oppose an attempt on his liberty by the same extreme measures permissible in an attempt on his life appears to be because liberty can be secured by a resort to the laws.” 1 Bishop’s New Criminal Law, § 868, and cases cited.
Upon self-defense the court instructed the jury, at the request of the appellant, as follows: “If the jury, from the evidence, believes that the defendant was placed in the position, at the time of the killing, in which his life was imperiled by the deceased, and he slew him without having any.notice of his official character, and the killing was apparently necessary to save his own life, or to prevent his receiving a great bodily injury, then the killing of deceased was homicide in self-defense; nor does it matter that deceased was legally seeking to arrest the defendant, if the defendant had no notice of the faet, or reasonable grounds to know that he was an officer.”
And the court refused to instruct the jury, at the request of the appellant, as follows: “The defendant claims that the killing was justifiable, because done in necessary self-defense; and you are instructed that, in determining whether the killing was necessary, the defendant had the right to be governed by the situation as it appeared to him at the time; so that, under the law, if from the appearance the defendant honestly believed, without fault on his part, that he was in danger of losing his life or receiving great bodily harm from his assailants, he was as much justified as if the danger had been actual or real.”
The appellant insists that the court erred in refusing to instruct the jury as requested. His contention is that he had the right to act upon his situation as it appeared to him at the time he did the killing. As to how it did appear, the evidence was conflicting. The evidence adduced by the state tended to prove that Taylor was a deputy marshal of the United States, ■as he was; that he approached within twenty-flve or thirty steps of the appellant, and, presenting his gun, commanded him to surrender, and, instead of obeying, he immediately fired his gun at Taylor, and killed him. On the other hand, the •evidence on the part of appellant tended to prove that Bruce was ignorant of the fact that Taylor was a deputy marshal; that Taylor and those with him, without any warning, approached him in a run, and commenced firing their guns at him before he had made any resistance or -shown that he would; and that Bruce then killed Taylor. Upon this evidence the court instructed the jury, at the request of the appellant, that if Bruce “had no notice of the fact, or reasonable grounds to know, that he was an officer,” “and the killing was appai’ently necessary to save his own life, or prevent his receiving a great bodily injury, that the killing of the deceased was homicide in self-defense;” and he sought to have thisdnstruction amended by an additional one to the effect that, if the killing appeared to Bruce to be necessary, he was justified in taking the life of Taylor to protect his own. But it seems to us that, he was not prejudiced by the refusal to give that instruction; for, if the evidence adduced by him was true, then it must have so appeared to the jury and to him; and, if the evidence adduced by the state was true, it could not have so appeared to the jury or Bruce, and he at least acted recklessly and carelessly, without due circumspection, and was guilty of manslaughter; so that, according to any view the jury could have taken of the evidence, he was not prejudiced by the refusal to instruct as he requested.
The verdict of the jury is remarkable. There was no evidence to sustain it as to the degree of homicide of which they found the defendant guilty. They found that he was not justified or excusable, and found him guilty of the least offense they could. They were unreasonably lenient to him, and he has no, right to complain. Sand. & H. Dig., § 2260; Pratt v. State, 51 Ark. 167; Fagg v. State, 50 Ark. 506, 508.
Judgment affirmed. | [
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Battle, J.,
(after stating the facts.) “Mutuality,” it has been said, “is the essential principle of a building association.” Its principal object is to raise a fund to advance to those of its members who may desire to borrow money. For this purpose each member subscribes for the number of shares in its stock he desires, and at stated times and short intervals pays upon the same small sums of moAey, called dues. He continues these payments until they, with the profits derived from other sources, after the deduction of expenses and losses, equal the face value of the stock, when the stock is matured. The shares are then called in, and the owner receives the face value thereof in cash, unless he has received an advance on his shares, and in that event his obligation based upon such advance is cancelled. Before the maturity of the stock the dues paid are usually advanced to the member who will relinquish to the association the prospective dividend to be paid upon his shares at their maturity in exchange for the lowest present cash payments per share, he agreeing to pay the dues on the shares and interest on the sum advanced “until the association is able to divide, to each share of the stock held by the members, the par value of those shares as fixed in the charter.” In other words, he agrees to pay the dues and interest until his shares reach their par válue, in consideration of the amount advanced to him before that time. The dues and interest so paid contribute to create the common fund with which the stock of the association is matured and paid.
The member, who has received the advance on his stock still holds his interest in the common fund and in the management and success of the association. He is as much interested as the members who have received no advance. All are bound in proportion to the amount of their shares for the payment of the expenses and losses of the association. The latter class of members is interested in the increase of the common fund because upon it depends the payment of its shares; and the former is interested because upon it depends his discharge from the obligation to pay dues and interest until the maturity of his shares. Eversmann v. Schmitt, (Ohio) 41 N. E. Rep. 139.
The duty of all the members of both classes to pay dues until the maturity of their shares depends,' however, upon the solvency of the association. The insolvency of the company subjects it to being wound up by judicial proceedings at the instance of any of its members; and when insolvency occurs, and such proceedings are instituted, the association becomes unable to carry out its contracts with its shareholders; its stock can never be matured; its members are relieved of the further payment of dues on their shares; and the further performance of its executory contracts is placed beyond its power. In such a state of affairs nothing remains but liquidation; and so much of the amount advanced to a member, and interest thereon, as has not been paid immediately becomes due and collectible. This is a result of the necessity of the situation. How shall this amount be ascertained? See Weir v. Granite State Provident Association, 38 Atl. 643; Knutson v. Northwestern Loan & Building Association, 67 Minn. 201; Rogers v. Raines, 38 S. W. Rep. (Ky.) 483; Strohen v. Franklin Savings & Loan Association, 115 Pa. St. 273; Hale v. Cairns, 77 N. W. Rep. (N. D.) 1010; and Thompson on Building Associations (2d Ed.) §§ 171, 297, and cases cited.
He, of course, should be charged with the amount he actually received, with legal interest thereon. The question is, with what should he be credited? The insolvency of the association and the consequential winding up of its affairs place him in a dual relation to the association, which is that of a borrower whose debt is due, and of a stockholder. The dues paid by him on his shares are a part of its capital stock, and belong to all of its members alike, and should bear their proportionate part of the losses and expenses of the corporation. In this way he is made to bear his part of the burden. Being liable in this manner, it is evident that he is not entitled to receive, or be credited with, anything on account of dues paid until the expenses and losses are ascertained and deducted and his proportion of the assets of the- company is determined. Were it otherwise, and he entitled to be credited with dues on the amount of his indebtedness for advances, it is evident that he would receive the value of his shares, so far as that value is the result of dues, while the members who have received nothing would be compelled to bear all the losses. This would be subversive of that mutuality, equality and fairness upon which building associations are supposed to be based. It follows, then, that, as to his proportionate . part of the assets of the company, he must await the period of final distribution. See cases above cited, and Rogers v. Hargo, 20 S. W. Rep. (Tenn.) 430; Price v. Kendall, 36 S. W. Rep. (Texas) 810; Wohlford v. Association, 140 Ind. 662; Phelps v. American Savings & Loan Association, 80 N. W. Rep. 120.
What we have said of dues does not apply to interest and premiums actually paid. The latter were paid solely on account of the advance. The member who paid the same did so in consideration of the complete execution of his contract with the association. That consideration, by reason of the insolvency of the company and consequent proceedings, has failed, and he, as to the advance, has become a borrower, whose debt therefore is due, and the interest and premium paid should be credited to him on such debt. The members who have received no advances, having paid no premiums and interest, are not entitled to share in those paid by the member who has. See cases cited above.
, The rule adopted and followed in Roberts v. American Building & Loan Association, 62 Ark. 572, does not apply to this case. The object of the rule in that case was to ascertain the amount due when the member who received the advance was in default aud the association was a going concern.- In this case the reverse is true, and all the stockholders are in default by reason of the insolvency of the association. Weir v. Granite State Provident Association, 38 Atl. (N. J.) 643; Price v. Kendall, 36 S. W. Rep. (Ky.) 810. For the same reason the penalty that the bond sued on authorizes the association to sue for and recover cannot be enforced. The condition upon which the right to it depends has never occurred, and the association has never elected to sue for it.
In the case before us the appellee, James L. Phillips, bid fifty per cent, of the face value of his shares for the advance received by him from the association. The monthly payment of sixty cents upon each share was paid to and received by the association as dues, according to the terms of his bond. When the advance was made, he, in consideration thereof, agreed to pay the monthly dues on his stock until its maturity. In this he undertook to perform what he agreed with the association, and thereby indirectly-with its members, to do when he became a fellow stockholder. His duty as to his shares was not changed by the advance. When his stock matured by the performance of his contract, he was to receive all the benefits accruing, All the sums paid on the stock were dues; the whole of each, and every sum so paid was a due as much as any part of any of them. It is, therefore, evident that, in the equitable adjustment of the rights of all parties made necessary by the insolvency of the association, he should be credited with the whole of the sixty cents per share per month on his account as a shareholder, and not as a borrower. Hale v. Cairns, 77 N. W. Rep. (N. D.)1010.
Appellant does not seek to recover any premium in this action.
It is said by appellee, James L. Phillips, that he is entitled to offset the present value of his stock against any judgment that may be recovered against him. That cannot be done in this action. The amount due on the stock cannot be ascertained until the final account of the receiver is filed in the action in which he was appointed. This court has not sufficient information to enable it to ascertain the amount. As to it, appellee must await the period of final distribution of the assets. Rogers v. Raines, 38 S. W. (Ky.) 483; Weir v. Granite State Provident Association, 38 Atl. (N. J.) 643.
The decree of the circuit court is therefore set aside, and the cause is remanded, with instructions to the court to enter a judgment in accordance with this opinion and to foreclose the mortgage to pay the same, and for other proceedings.
Riddick, J., dissents. | [
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Hughes, J.,
(after stating the facts.) The judgment of the circuit court sufficiently states the facts in this case, without further statement of them by this court.-
The cause was tried before the Hon. John Fletcher, a special judge, sitting as a jury, and the findings of facts by the court, where there is evidence upon which they might be sustained, are conclusive upon this court. We therefore consider these findings of facts first.
We take it that there is no serious question upon the evidence or doubt that the bonds of Hot Spring county for $22,-000, numbered from 1 to 220', both inclusive, were issued, and! became a part of the indebtedness of Hot Spring county prior to the 5th of April, 1873, when the act was passed for the formation of Garland county out of territory taken from Hot Spring and other counties. While it seems not to be so certain that the bonds numbered from 221 to 320, both inclusive, were not issued till after the 5th of April, 1873, still there is some evidence to support the finding of the circuit court that said bonds were not issued and delivered so as to constitute a part of the indebtedness of Hot Spring county till after-April 5, 1873. The finding therefore must stand as to this. The finding that the territory taken from Hot Spring to form part of Garland county constituted on the 5th of April, 1873, 38.5 per cent, of the assessed value of all the real and personal property liable to taxation in Hot Spring county is supported by the evidence in the case. We cannot disturb this finding, nor the finding of the court that the value of the jail remaining in Hot Spring county after the 5th of April, 1873, was $3,600. The fact that it cost originally more than that is not evidence of its value on the 5th of April, 1873. We think the facts and circumstances as proved sustain the court’s-finding as to its value; at all events, it is not without some evidence in the record to sustain it.
The court found that the court house in Hot Spring county-had been one-third completed on the 5th of April, 1873, and that it was of no value to Hot Spring county. The evidence shows that the court house was never turned over to Hot Spring county, but that it was sold in its unfinished condition to Emmerson and another, under a mortgage, and was torn down, and the material removed.
But, says the counsel for Garland county, Hot Spring county, through her board of supervisors, prevented the building of the court house to completion by releasing the contractor, and cancelling the contract; but for this the court house would have been completed, and Hot Spring county would have had it when completed. But the evidence tends to show that, owing to the condition of things in Hot Spring county, the court house, had it been completed, would have been of nominal value only, at most, to the county. A movement was pending to change the county site of Hot Spring county from Rockport to Malvern in said county, Malvern being on the St. Louis, Iron Mountain & Southern Railway, while Rockport was off the line of said railroad, then approaching completion through Hot Spring county. It was a foregone conclusion that the county seat would be moved from Rockport to Malvern, which was soon afterwards done.
In reality it seems that this decree releasing the sureties on the bond of the contractor Nickles was a nullity, for Hot Spring county was not a party to the proceedings in which this was done, as we think the record shows. This seems to have been an effort to rid the county of Hot Spring of these bonds, for the decree, while it purported to release Nickels and his sureties, directed the delivery of all the bonds issued and put in circulation, and the cancellation thereof, which however was never done.
We are of the opinion that there was no error in the finding of the court that the court house was of no value to Hot Spring county. If it can be said that this decree bound Hot Spring county, it also bound Garland county, for Hot Spring stood for and represented Garland county, so far as the territory in Garland that was taken from Hot Spring county is concerned. Board of Supervisors of Chickasaw County v. Board of Supervisors of Clay County, 62 Miss. 325.
The judgments of the United States circuit court against Hot Spring county settled the validity of these bonds, and the rate of interest recoverable upon them, and cannot be collaterally attacked, even if erroneous in the amount of interest recovered against Hot Spring county. Chollar v. Temple, 39 Ark. 238. Garland county is bound by these judgments. She was represented by Hot Spring county. Board of Supervisors of Chickasaw County v. Board of Supervisors of Clay County, 62 Miss. 325.
These judgments are res judicatae, and estop both Hot Spring and'Garland counties. 1 Herman on Estoppel §§ 53, 54, 348, 349.
The evidence of- Latta and Sumpter that the territory-taken from Clark and Montgomery counties, and attached to Hot Spring county when Garland county was established, was intended by the legislature as a compensation to Hot Spring county for territory taken from Hot Spring county and attached to Garland county, was properly excluded by the circuit court. The act of the legislature speaks for itself, and the intention .is derived from a construction of the act by the courts. There was no error in refusing to allow Garland county credit for territory taken from Clark and Montgomery counties and attached to Hot Spring county at the time of the formation of Garland county. Why Garland county should claim credit on this account we aré unable to see.
It is not insisted that the act under consideration is unconstitutional, though this is made the third ground of the motion for a new trial by Garland county. It is waived in the 'argument of counsel, conceding that the constitutionality of the act was settled by this court in Perry County v. Conway County, which we think is correct (52 Ark. 430).
The appellee, in its second assignment of error in its motion for a new trial, says “that the court erred in refusing to include in the sum of the indebtedness part of which Garland county was, by the general assembly, made liable, to pay,, the costs incurred in the United States circuit court in mandamus proceedings to compel levy of taxes with which .to pay judgments on causes of action, which the court in this case held to be such indebtedness as said Garland county was so liable to discharge in part.” Hot Spring county might have arranged.to meet her ■ indebtedness without being compelled by mandamus, and it was no fault of Garland county that she had to be com - pelled by mandamus to do so. The coui’t did not err in holding that Garland county was not liable for part of the costs of these mandamus proceedings, or for poundage paid the clerk of the United States court, or the fees paid the tax collector and treasurer of Hot Spring county for collecting and paying out.
In the sixth assignment of error in appellee’s motion for a new trial it is said “that the court erred in refusing to allow interest to Hot Spring county on that part of the, indebtedness for which Garland county is now adjudged to be liable from the dates upon which Hot Spring county made the ■ several payments that paid and discharged the same down to the date of the judgment of this circuit court adjusting the indebtedness between Hot Spring county and Garland county. We think there was no error in this ruling. Debts against counties do not bear interest as matter of law. There is no statute allowing interest on such debts in this state, and it seems that interest was not allowed at common law. 11 Am. & Eng. Enc. Law, 379, 380; Perley on Interest, 65 (1) and cases cited; 11 Am. & Eng. Enc Law (1 Ed.), 388d, note 3, and389 note 1'.
The judgment of the circuit court is in all things affirmed.' | [
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Wood, J.
Gip Earnest brought this suit before a justice of the peace to recover the possession of a certain cow and calf. The affidavit recites: “The plaintiff, Gip Earnest, states that the cow and calf claimed by him in this action is [here deseribes the cow]; that he is the owner of said cow and calf, and is entitled to the immediate possession of them,” etc. The record shows that the defendant, Gunter, filed before the justice a motion “to dismiss on the ground that the court had no jurisdiction of the subject-matter, as the cause had been adjudicated in the case of Frank Bowen, Administrator, v. Nannie Earnest.” No written answer was filed in the justice’s court. The case was tried by jury, judgment entered in accord with its verdict, and an appeal taken to the circuit court. In the circuit court, Gip Earnest testified that “this case was tried in the justice court as the property of my wife.” The reason he brought the suit as he did, he explains, was “because what is mine is my wife’s, and what is my wife’s is mine.” Mrs. Nannie Earnest testified: “I am the wife of Gip Earnest. He brought this suit at my request. I authorized him to bring it.” The circuit court allowed an amendment to be made to the affidavit showing that, “as agent of his wife Nancy,” he claimed the cow and calf, and that he was the owner “of said cow and calf as such agent.” It is urged:
First, that the court erred in permitting the amendment. The court was warranted in the conclusion that the cause was begun and prosecuted before the justice by Gip Earnest for his wife. That being true, there was no error in allowing the amendment, for it did not in any manner change the cause of actiou. It would have been more formal, to be sure, to have the docket entries of the proceedings in the name of Nancy Earnest instead of Gip. But there is no doubt from the proof that the cause progressed before the justice upon the theory, on behalf of the plaintiff, that the cow was the property of Nancy Earnest. The defendant himself, while claiming to own the cow, yet admitted or conceded that the cause was in fact being prosecuted by Gip Earnest for his wife Nancy. His motion to dismiss before the justice for the reason stated was tantamount to this, for how could he have pleaded that the title to the cow in controversy had been previously adjudicated in a suit between Bowen and Nancy Earnest, without recognizing that she was the proper party in the present suit? The real party in interest was revealed, and the failure to have the name of Nancy Earnest entered as the plaintiff in the justice’s and circuit courts was a mere irregularity of form. The court below evidently treated the affidavit as hers, although it was signed by Gip Earnest.. The body of the affidavit, as amended, -disclosed that Nancy Earnest was the real party in interest, and that Gip Earnest was acting as her agent. The proof was taken, and the case progressed to judgment, upon the theory that it was her title and right to the possession that was being litigated in the name of her husband and agent. The law looks to the substance rather than the form:
Second. From this point of view neither the testimony of Gip or Nancy Earnest was improper. Section 2916 of Sandels & Hill’s Digest allows the husband or wife to testify “for the other in regard to any business transacted by the one for the other in the capacity of agent.”
Third. It is contended that “parol evidence was not admissible to contradict the record of the justice of the peace,” and that “the court erred in refusing to instruct the jury, at request of defendant, that the judgment of C. A. Gunter, J. P., introduced in evidence, was valid and binding upon the parties until reversed by appeal or otherwise.”
C. A. Gunter testified: “I am a justice of the peace of Saline county. Two suits were brought in my court by W. T. Bowen, as administrator of Seth Bowen; one against Gip Earnest and the other against his wife, Nannie Earnest, for cow and calf and bed. The parties to the suit against Nannie Earnest and their attorneys had a consultation, and the attorneys said they had agreed upon a settlement without jury trial, and wanted me to make a record of same on my docket. The attorney for Mrs. Earnest dictated and the attorney for the administrator wrote it upon my docket, aud at their request I signed it as justice of the peace.” Witness then read from his docket entry, showing the beginning of replevin suit, the issuing of the necessary writs, the day set for trial, etc., and then read the following from his docket:
“W. Frank Bowen v. Nannie Earnest. On this day, March 31, 1897, comes the plaintiff, W. F. Bowen, administrator, and comes the defendant, Nannie Earnest, being the return day of the writ, and asked to have this suit dismissed, the plaintiff, W. F. Bowen, administrator, paying all the costs; and it is agreed by the parties, and ordered by the court, that the defendant, Nannie Earnest, take and retain possession of the bed, and that the plaintiff, W. F. Bowen, take possession of said cow and calf on the day of the administrator’s sale, the said Nancy Earnest delivering the same at the place of sale on the day of sale; and John Bowen agrees to pay Nancy Earnest four dollars out of his part of the estate on the day of sale, as a part payment on the cow and calf, if Nancy Earnest or Gip Earnest buys the same, the defendant waiving all damages. C. A. Gunter, Justice of the Peace.”
' Crip Earnest testified concerning the suits brought by the administrator against himself and wife,, inter alia, as follows: “The administrator was to have the cow and .calf in controversy, and Nannie Earnest was to have the feather bed. Nannie Earnest was to keep the cow and calf until the day of the administration sale, and on that day deliver them, so they might be sold with the other personal property of the estate. There was also an agreement that, if my wife bid in the cow and calf at the sale, John Bowen on the day of sale was to pay five dollars of the purchase money out of his pocket, and the balance was to be taken out of my wife’s part of the estate. My wife, was to be charged in her part of the estate for balance of the purchase money of the cow. My attorney told me that was the agreement the plaintiff had consented to, and I told him I would agree to it; but I never did agree nor did I authorize myattorneyto compromise the case according to the terms of the docket entry. My wife bought the cow and calf at the sale for $11.75. John Bowen was present, as he had agreed to be, at the sale, and did not pay the five dollars, and I refused to pay any part of the purchase money or to give note for the same. * * * My wife had kept the bed, and we had delivered the cow and calf at the sale. I left the cow and calf in the hands of the administrator, and he advertised them again for sale. At this second sale I appeared and forbade the sale, claiming them as my wife’s property, but the administrator sold them to the defendant, C. A. Gunter, who bought them for nine dollars, and he took possession of them, and I instituted this suit against him as the agent of my wife.” There was evidence tending to show that Seth Bowen gave the cow in controversy to his daughter, Nancy Earnest.
Mr. Black defines a judgment as “the determination or sentence of the law, pronounced by a competent judge or court, as the result of an action or proceeding instituted in such court, affirming that upon the matters submitted for its decision a legal duty or liability does or does not exist.” 1 Black, Judg. § 1, p. 2. See also Bouvier’s Law Diet., “Judgment.”
The docket entry of C. A. Gunter, supra, does not come within this definition. There is nothing in it of the authorita tive character of a judgment determining the rights of parties to the controversy, and capable of enforcement by the court on whose docket it was entered. It was nothing more nor less than a dismissal of the suit at plaintiff’s cost, by the consent of both parties; a compromise settlement of the differences upon certain terms and conditions, which were entered upon the record, and which, Mrs. Earnest contends, were never complied with. Neither of the parties to the above settlement nor their privies could plead this docket entry as res pidicata in a suit afterwards brought to try the title and right of possession to the same property.
We find no error, therefore, in the ruling admitting the evidence and refusing the instruction. We deem it unnecessary to discuss other instructions. The objection urged here to them relates to matters already discussed, and it follows that there was no reversible error.
Affirmed.
Battle, J., dissents. | [
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Butler, J.
In 1917 the appellant district was organized under the provisions of § 3607 et seq. of Crawford & Moses’ Digest for the purpose of constructing a drain in the Southern District of Arkansas County. After the original district was organized, the assessment of benefits levied and bonds sold, the commissioners discovered that other lands would he benefited by the making of the improvement, and, under the provisions of § 3614 of the Digest, caused the benefits accruing to said lands to be assessed reporting the same to the court with a description of the lands and praying that the assessments be confirmed and the district extended so as to include the lands described.
The county court caused the notice required by said section to he published, hut, on account of typographical errors in the notice furnished the printer, one tract of land was entirely omitted, and section 33, which was intended to be included, was described as section 3. The lands sought to be included and correctly described in the report of the commissioners filed with the court, were the west one-half of section 26, west one-half of southeast section 26, east one-half of section 27, all of section 33, northeast one-fourth of section 34, township 3, range 2 west, while the notice as shown by the proof of publication omitted the west one-half of section 26, and, instead of describing the whole section as section 33, described it as section 3. These errors appear not to have been noticed, for when the matter came on for hearing before the court the prayer of the petition was granted, the assessments confirmed and the boundaries of the district extended as prayed for in the report and the assessments extended against the lands therein described.
This order was made at the October term, 1919, of the county court. Afterward, on a petition filed by the commissioners, additional bonds of the said district were authorized in the sum of $3,000, and the revenues of the district as extended were pledged therefor. The annual installments of the assessment of benefits were extended on the tax books against the lands above described for the years 1919 to 1922, both inclusive, and paid by the landowners without protest. Inadvertently the clerk of the court omitted to extend the amiual installments of the assessed benefits on the tax books for the years 1923 to 1927, both inclusive. The original commissioners had moved away or died, and it became necessary to appoint a new board in the latter part of 1927. This board caused an audit to be made, and the omission above mentioned was discovered. By appropriate proceeding the delinquent assessments were-extended on the tax books, and, not having been paid, this suit was brought to recover, the taxes delinquent.
It was the contention of the appellees (landowners) in the court below that:
(a) The notice published in an annexation proceeding which left out one tract and misdescribed another was jurisdictional and fatal to all subsequent proceedings.
(b) That appellant’s right to subject the lands to the payment of said assessments was barred by the three year statute of limitation.
(c) That the failure of appellant to attach a certified list of the lands to its complaint was jurisdictional, and the court had no jurisdiction to hear and determine this cause.
The appellant contended in the court below and also in this court that the landowners were estopped from setting up the defense interposed in this suit because of their acquiescence in the order of the court extending the district and approving the assessments by having paid the installment of benefits for fonr years without protest.
The commissioners reported, and the court found, in 1919 that the contemplated improvement would benefit the lands of the appellees to the extent of the benefits assessed, and on a hearing of this case the preponderance of the evidence established the fact that these lands, becausee of their slashy and low and flat character, were valueless before the improvement was made, and that the drain constructed has made the lands fit for tillage. When the order was made including the lands of appellees in the district, the drain was extended so as to practically parallel the northeast quarter of section 34 and touch the south boundary of the west one-half of section” 26, and a lateral drain was made to approximately the center of section 33. This appears from a plat filed and introduced in evidence.
By reason of the annual installments extended against the lands of appellees for the years 1919 and 1920 as early as January, 1920, they had knowledge that the drains were being constructed so as to drain their property. An additional bond issue of $3,000 necessitated by the extension of the district was issued and sold, which became a burden not only upon the lands of the appellees, but upon all the lands of the district. It is clear therefore that they acquiesced in the action of the commissioners and accepted the benefits to their lands without protest.
As eárly as the case of Rector v. Board of Improvement, 50 Ark. 116, 6 S. W. 519, it was decided that property owners might estop themselves from questioning the validity of the organization of an improvement district by remaining silent while the improvements are being made when they had an opportunity to speak. In that case, the court said: “The assessment being made for the special benefit and improvement of his and the other real property in the district, he cannot stand by and receive the .benefit of the improvement in the enhanced value of his property, and refuse to pay his proportion of the assessment, on the faith of which it was made. Under such circumstances it would he his duty to speak and assert his rights, and, failing to do so, he would thereby waive them. Having failed to speak when, in the exercise of good faith, he ought to have done so, he will not he permitted to do so, when, in the exercise of the same good faith, he ought to remain silent.”
In Harnwell v. White, 115 Ark. 99, 171 S. W. 108, the court in effect held that mere silence of the property owner with respect to illegality of an improvement district would not estop him from subsequently questioning its validity; hut, where he does some affirmative act which induces persons to spend money or surrender substantial rights on the faith of such conduct, there is no reason for not applying the doctrine of estoppel to his conduct.
In Brownfield v. Bookout, 147 Ark. 555, 228 S. W. 51, it was held that where a person with actual or constructive knowledge of the facts by his words or conduct induces another to believe that he acquiesces in a transaction or that he will offer no opposition thereto, and the other, in reliance on said belief, alters his position, the former is estopped from repudiating the transaction.
The facts of this case bring it within the principle announced in the cases above cited. Here the appel-lees, because of the assessments made in 1920, had actual knowledge that their lands had been included in the district. They paid these assessments without protest when, if they desired to object, it was their duty to make such objection known and not to acquiesce by the payment of the annual assessments while the drains were being extended to their benefit, and when an additional indebtedness was 'incurred which would work an increased burden on the. remaining landowners of the district, if, after the improvement was made, the appel-lees might repudiate the extension of the district, having recognized its validity and permitted the work to progress to completion without demur.
'We are therefore of the opinion that the contention of the appellant is well taken. This makes it unnecessary to discuss the first question raised by appellee, and we consider only questions (b) and (c).
(b) It was the duty of the commissioners to see that the clerk extended the annual installments of the assessed benefits on the tax books. The lien for the assessments attached in 1919, when the order of the court was made approving the benefits to the lands as assessed by the commissioners, and the installment for any one year was due and payable within the period of time in that year in which the general tax for the preceding year would have been payable. Section 3618, Crawford & Moses’ Digest. The annual assessment payable in 1923 therefore would be due and payable within the period from the first Monday in January to and including the 10th day of April, 1923, and became delinquent after said last mentioned date and thus for each of the years succeeding. As no suit for the collection of delinquent taxes shall be brought after three years from the date the same became delinquent (Act 506, 1923, § 2), it follows that the instant suit is barred against all of the taxes which became delinquent three years before the suit was instituted, and appellees’ claim in this particular should be sustained. In this connection we do not agree with the contention of the appellant that the installment for any one year was not due and payable until the year following, but think the language of the act makes it clear that the installment for any one year is payable in that year within the regular tax paying time and not in the following year. Tallman v. Board, etc., 185 Ark. 851, 49 S. W. (2d) 1039.
There is no merit in the contention made by the appellant that the question of limitation was not raised • in the court below. The complaint as amended showed on its face that the assessments due for the years 1923-4-5-6 were delinquent for more than three years before the filing of the complaint and barred. Therefore the question of limitation could be raised by demurrer. This was done, and the decree recites that the cause was submitted upon the pleadings and testimony and that the demurrer was overruled.
(c) We also find no merit in the contention of the appellees that the complaint in the instant case was insufficient in that it failed to have attached to it a certified list of the lands delinquent. The record shows there was such a list attached to the amended complaint to which answers were made by appellees. See also Moore v. Long Prairie Levee Dist., 153 Ark. 85, 239 S. W. 380.
It follows from the views expressed that the decree of the trial court must be reversed, and the cause remanded for further proceedings in accordance with the principles of equity and with this opinion. | [
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Smith, J.
Three cases were consolidated and tried together, and from a verdict and judgment in favor of each plaintiff is this appeal.
Two of the plaintiffs were riding in a truck owned by the third plaintiff on the afternoon of July 4, 1931, at which time the truck was struck by an eastbound passenger train of the defendant, and the suits were brought to recover the damages thus inflicted. No complaint is made that the verdicts returned were excessive, hut it is insisted that certain errors were committed which call for the reversal of the judgments.
The first assignment of error is that the court erred in submitting to the .jury the question whether there was a failure on the part of the operatives of the train to keep a lookout and in refusing to instruct the jury that the lookout statute was not involved.
The collision between the truck and the train occurred at a crossing inside the limits of the city of Wynne, and the operatives admit that the train was running about twenty-five miles per hour. The witnesses for the plaintiffs place the speed at a higher rate. Certain box cars were standing on a track running parallel to the one on which the train entered the city. These box cars were standing about 150 feet from the crossing, and certain flat cars were nearer the crossing. Plaintiff Brown testified that the tracks were straight and ran east and west, and that the highway- ran north and south. There are two switch tracks on the south side of the main line, and one switch track on the north side of the main line. Plaintiff Seago, who was driving the truck, stopped it before crossing any of the tracks, which were all surface tracks and on a level with the highway. Plaintiff Brown further testified that box cars were standing both east and west of the crossing, and that there was “just a narrow space between for us to go through. ’ ’ Near the crossing was a signal light, but it was not working, and did not indicate the approach of the train. Will Jones, a pedestrian, crossed the tracks just as witness and Seago drove up to them, and no signal of any kind was given as they did so. The bell did not ring and the whistle was not sounded. The testimony of Seago, the driver of the truck, was to the same effect, and these witnesses were corroborated by a number of others.
The testimony on the part of the railroad company was to the effect that the crossing light was in working order when it was inspected shortly after the collision, and that the hell was rung and the whistle was sonnded as the train approached the crossing, and that the truck came upon the main-line track from behind the box cars so near the engine that the collision conld not be averted.
Under the facts stated, it was not error to admit testimony as to the speed of the train, nor was it error to instruct upon the duty of the railroad company to keep a lookout, and the duty also to ring the bell or sound the whistle as the train approached the crossing.
In the recent case of Missouri Pacific R. Co. v. Rogers, 184 Ark. 725, 43 S. W. (2d) 757, we held, in effect, that, where no warning was given of the approach of a train to a crossing, the speed at which the train is moving is of material consideration on the question of negligence; that the lookout answers one purpose, the warning another, and the control of the speed yet another. That the requirement as to the lookout is primarily to enable the trainmen to control the movement of the train when they discover danger, while the warning with whistle or bell is to give the traveler notice to keep out of danger, and the control of the speed is designed to make both the lookout and the warning more effective.
The plaintiffs testified, as did also certain bystanders who saw the collision, that the trainmen gave no notice of the train’s rapid approach by ringing the bell or blowing the whistle, as the law required, and as they would, no doubt, have done had a lookout been kept. These were at least questions for the jury, and there was no error in submitting them.
The court gave, over appellant’s objection, an instruction, numbered 4, reading as follows: “If you find from the evidence in this case that the defendant had placed signal lights at the crossing where this accident occurred for the purpose of warning the traveling public at said crossing of the approach of its trains, that fact would not relieve the plaintiffs of the duty to look and listen for the approach of trains at said crossing, but, if they were inoperative and not working at the time this plaintiff attempted to cross the said crossing, he might infer, from the fact that the said lights did not show that a train was coming, that no train was coming, and thereby be impliedly invited to cross said tracks.”
Testimony was offered by the defendant railroad company to the effect that the crossing light was burning, which would have indicated to one who looked and observed it that a train was approaching; while the evidence of the plaintiffs was to the effect that the light was not burning, at least that no red light showed, as was usual when a train was approaching and the light burning, and that therefore the light gave no warning.
Upon this issue, the instruction was not erroneous, as it appears to conform to the law as declared in the case of Bush v. Brewer, 136 Ark. 246, 206 S. W. 322. See also,Missouri Pacific R. R. Co. v. Havens, 164 Ark. 108, 261 S. W. 31; Missouri Pacific R. R. Co. v. Elvins, 176 Ark. 737, 4 S. W. (2d) 528.
The instruction did not absolve plaintiffs from the duty to look and listen because the light was there, although it was not burning, but declared the law to be that, having looked and listened, the plaintiffs had the right to infer that no train was approaching, as the light did not show that there was danger.
The court gave numerous instructions defining the duties of both the plaintiffs and the operatives of the train. Accurate definitions of contributory negligence were given at the request of appellant, after which the court gave, on its own motion and over appellant’s objection, an instruction reading as follows: “Contributory negligence on the part of the plaintiffs as mentioned in the preceding instructions means negligence that is equal to, or greater than, the negligence, if any, of the defendant company; and, if you find that the plaintiffs are guilty of contributory negligence, and that such negligence equals, or is greater than, the negligence, if any, of the defendant company, then your verdict in all thrée cases shall be for the defendant. The burden of proving such contributory negligence is on the defendant company. ’ ’
Read by itself, this instruction is not an accurate definition of contributory negligence, but it was not intended to be read by itself. When read in conjunction with the instructions to which it referred, it does not tell the jury that the contributory negligence of the plaintiffs could not be considered unless that negligence was equal to, or greater than, that of the defendant, but declared the law to be that, if the plaintiff’s negligence was equal to or greater than that of the railroad company, the cause of action was defeated, although the railroad company was itself guilty of negligence. In other words, the instruction appears to have been given, not to define contributory negligence, as that had been done in other instructions to which reference was made, but to declare the law id regard to the effect of contributory negligence. We conclude therefore that the instruction, while not accurately phrased, was not erroneous and prejudicial. Section 8575, Crawford & Moses’ Digest.
Upon the whole case we find no prejudicial error, and the judgment must therefore be affirmed, and it is so ordered. | [
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Mehafey, J.
This action was begun by appellee in the Lincoln Chancery Court, in which judgment was asked against the appellant for $2,450 and interest..
In 1929 the appellant made a loan in the sum of $10,000 to the Merchants ’ & Farmers ’ Grin Company, and, as security therefor, took a mortgage on the gin and land on which it was located.
The Merchants’ & Farmers’ Gin Company, in addition to the mortgage, executed a written contract by which it agreed to sell and ship to the Buckeye Cotton Oil Company all cotton seed ginned at its gin during the year 1930, and until said loan was repaid.
The complaint alleged that on February 22‘, 1930, the Merchants’ & Farmers’ Gin Company executed and delivered to the Merchants ’ & Planters ’ Bank & Trust Company its promissory note in the sum of $5,000, due November 1, 1930, bearing interest from date until paid at the rate of 10 per cent, per annum; that on April 25, 1930, the Merchants’ & Farmers’ Gin Company executed and delivered to the Merchants’ & Planters’ Bank & Trust Company its promissory note in the sum of $7,000, due on or before November 1,1930, bearing interest from date at the rate of 10 per cent, per annum, this note being indorsed and the payment guaranteed by W. E. Massey.
It further alleged in the complaint that, in order to secure the payment of said $5,000 note and all other sums which might be advanced by the bank to the gin company during the year 1930, the said gin company, on February 22, 1930, executed a deed of trust conveying all crops of cotton, cotton seed, corn, hay and all other agricultural crops grown or caused to be grown by the parties of the first part, or either of them, or grown by their tenants or share-croppers, or in which the mortgagor might have any interest, to the Merchants’ & Planters’ Bank & Trust Company. The deed of trust also covered other property, but it is not involved in this suit.
It was further alleged that the appellant, during the months of October and November, 1930, obtained and took possession of cotton seed which was mortgaged to the bank to secure its indebtedness, being cotton seed grown by or for W. E. Massey, and the Merchants’ & Farmers’ Gin Company, on lands owned and cultivated by Massey and the gin company, in Lincoln and Desha counties.
The complaint then described the seed, the date on which it alleged the appellant got possession of them, and the number of pounds, and alleged that the value of.the mortgaged property received by the appellant was $2,450, and that said seed was in the possession of the appellant, or had been appropriated, used, and converted for its use and benefit.
It was further alleged that Massey and the gin company were insolvent, and that the value of the mortgaged property was entirely inadequate to. discharge the mortgage debt.
The appellant filed answer denying all the allegations of the complaint.
There was a decree in favor of the appellee against the appellant for the sum of $1,474.97. The case is here on appeal.
It appears that the gin company not . only ginned cotton for Massey and the gin company, but for the public, and on the seed from the cotton ginned for the public the appellee had no mortgage.
The court found that on October 17, November 18, and November 25, shipments of seed were made to the appellant aggregating 175,000 pounds (108,660 pounds, of the market value of $1,391.97), were seed mortgaged to the plaintiff, and found that the appellant was liable to the appellee in this sum, together with interest at the rate of 6 per cent, per annum, making a total sum of $1,474.97.
The seed from the cotton ginned for the public is called free seed. When the cotton was ginned, the seed from the cotton on which there was no mortgage, and the seed from the mortgaged cotton, were all put in the same seed house, and thereby became mixed, so that it was impossible to segregate the mortgaged seed from the free seed.
It is appellant’s first contention that appellee assented to the intermixture of the seed and thereby lost its right to the seed.
There is no evidence in' the record showing that appellee assented to the intermixture, but it may be rea sonably inferred, we think, from the evidence that both appellant and appellee knew of the intermixture of the seed, and that neither made any objection.
The appellant knew of the mortgage to appellee, and it concedes that it was not entitled to any of the mortgaged seed, unless it was so entitled by the intermixture of the seed.
The evidence does not show that the appellee, in the instant case, permitted or assented to the confusion of the goods. The seeds were confused or put tog-ether by the mortgagor, and not by either the appellee or the appellant, but where there is a confusion of goods of the same kind and quality, such as the cotton seed in this case, there is no difficulty at all, where the quantity of each kind is known. The cotton seed were of the same kind, and the evidence showed how many pounds of mortgaged seed and how many pounds of free seed were put into the seed house.
The intermixture in this case was without the fault of either the appellant or the appellee, and therefore neither party forfeited any rights by such intermixture. 12 C. J. 492; 5 R. C. L. 1053.
The appellant contends that it is an innocent third party, that is, an innocent purchaser.
The evidence in this case tends to show that the ap-pellee furnished the money to purchase the free seed, and that the appellant did not pay anything for the free seed, but only credited the account against the gin company with the purchase price of the seed. It was therefore not an innocent purchaser. Hamilton v. Rankin, 108 Ark. 552, 158 S. W. 496; S. E. Lux, Jr., Merc. Co. v. Jones, 177 Ark. 342, 6 S. W. (2d) 302; 32 C. J. 574.
Appellant calls attention to the rule stated in 12 C. J. 497, but we think this authority has no application here. We have already said that both parties probably knew that the mortgaged seed were intermixed, but the appellant had no lien on the free seed, and no more claim to the free seed than the appellee had. It knew that a portion of the seed was mortgaged to appellee. It was, in fact, no more entitled to the free seed than appellee was.
It is contended that appellee waived its lien, and appellant cites and relies on Williamson v. Lesser, ante p. 281.
In that case the mortgagee expressly authorized the mortgagor to sell the cotton. At least, the court held that the evidence clearly preponderates in favor of the appel-lee in their contention that Williamson, who represented the mortgagee, was present on the streets when Perkins, the mortgagor, was selling cotton, and made no objections to the sale. The lower court also found that the mortgagee expressly agreed with the purchaser that he could buy from the mortgagor, and this court said that it could not say that the finding of the chancery court was against the preponderance of the evidence.
It was stated in the opinion in that case:
“It is a mere statement of elemental principles of law that where a mortgagee of chattels authorizes the mortgagor to sell the property, he is bound by a sale made to a purchaser from the mortgagor, and cannot complain, even though the purchaser knew of the existence of the mortgage.”
Appellant calls attention to several authorities or cases of replevin. They have no application here; this was not a suit in replevin, and, as we have already said, the mortgaged seed and the free seed were of the same kind and quality.
It was stated in one of the cases cited by appellant, Rust Land & Lbr. Co. v. Isom, 70 Ark. 99, 66 S. W. 434: “The plaintiff owns a certain number of staves, which, without its fault, have been mixed by defendant with other staves of his own. Conceding that this was innocently done, yet, if the staves are of the same kind, quality and value, a majority of us are of the opinion that plaintiff can in this action recover his staves, or an equal number to be taken from the common mass., if the separation can be made without injury.”
The mixture of the seed in the instant case was innocently done. They were of the same kind, quality and value. The appellant had no lien on any of the seed, and, as neither the appellant nor the appellee were the cause of the confusion of the goods, no rights were lost by the intermixture of the seed.
The court found that on October 11, 1930, the seed house was empty, and that the seed obtained from the ginning of cotton prior to that time had been disposed of, and that such seed did not enter into the calculation necessary to the determination of this cause. The chancellor also found from the evidence that the seed sold to the appellant after October 11 aggregated 175,000 pounds; that of this amount sold to the Buckeye Company after said date, 10.8,660 pounds, of the value of $1,391.97, were seed mortgaged to the appellee, and that the appellant was liable to the appellee for the value of this quantity of mortgaged seed.
There is very little conflict in the evidence. It would serve no useful purpose to set forth the evidence.
We have carefully examined the same, and have reached the conclusion that the finding of the chancellor was not against the preponderance of the evidence, and the decree is therefore affirmed. | [
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Lamar WilliamsoN, Special Judge.
This action is to test the constitutionality of act No. 21 of the General Assembly approved February 16, 1931, entitled, “An Act to Make the Office of Separate Chancery Clerk Appointive Instead of Elective, and for Other Purposes.” This issue is presented to the court by appellant having undertaken to qualify under the rules of the Democratic party as a candidate for nomination at the primary election to be held August 9, 1932, for the office of clerk of the Pulaski Chancery Court in the manner and within the time prescribed by the rules of the party. The Democratic County Committee declined to permit the' appellant to comply with the party rules for the purpose of becoming such candidate on the ground that no such office would be in existence to be filled at the general election because of the provisions of said act No. 21, § 1 of which provides:
‘ ‘ Clerks of chancery courts in counties in which the circuit clerk is not ex-officio chancery clerk shall be appointed by the chancellor of the district in which the county is located, and shall hold office for the term of the chancellor making such appointment. Said clerk shall receive an annual salary of forty-two hundred ($4,200) dollars, payable in equal monthly installments and such clerk may appoint or select his own deputies. No appointment shall be made under this act until the term of office of the present incumbents shall expire or the office become vacant.”
Appellant then, in apt time, filed in the Pulaski Circuit Court his petition for mandamus making the chair man and secretary of the Pulaski County Democratic Central Committee defendants. These defendants plead act No. 21 in justification of their refusal to permit the appellant to qualify as a candidate. To this pleading appellant demurred 'by alleging that said act No. 21 was void because of the provisions of Amendment No. 14 to the Constitution providing that the General Assembly shall not pass any local or special act. The lower court overruled appellant’s demurrer, and, appellant declining’ to plead further, dismissed his complaint resulting in the present appeal.
The court is of the opinion that the judgment of the lower court should be affirmed.
It is the well known rule of this court that statutes are presumed to be framed in accordance with the Constitution, and should not be held invalid for repugnance thereto unless such conflict is clear and unmistakable. Dobson v. State, 69 Ark. 376, 378, 63 S. W. 796. All doubts as to the constitutionality of a statute are therefore to be resolved in favor of the statute. In Waterman v. Hawkins, 75 Ark. 120, 86 S. W. 844, this court approved the decision of the Supreme Court of Missouri in State ex rel. v. Yancy, 123 Mo. 391, 27 S. W. 380, where the court used the following language which expresses well the principle controlling numerous decisions of this court: '‘The presumption is in favor of the constitutionality of the act, and, before this court would be justified in holding it invalid because in conflict with the Constitution, it should be satisfied of its invalidity beyond a reasonable doubt.”
The majority of the court is of the opinion that the question is determined by the decision of this court in Waterman v. Hawkins, supra, which announces as the controlling principle: ‘ ‘ Statutes establishing or abolishing separate courts relate to the administration of justice,. and are not either local or special in their operation. Though such an act relates to a court exercising jurisdiction over limited territory, it is general in its operation, and affects all citizens coming within the jurisdiction of the court.
“ ‘Whether an act of the Legislature he a local or general law must be determined by the generality with which it affects the people as a whole, rather than the extent of the territory over which it operates; and if it affects equally all persons who come within its range, it can be neither special nor local within the meaning of the Constitution.’ State v. Yancy, supra. In the case last cited, the Supreme Court of Missouri held that, under a provision of the Constitution identical with the provision of the Constitution of this State now under consideration, neither an act of the Legislature establishing a separate court, nor one detaching the clerical duties of that court and creating a separate clerk of the court, were local or special acts within the meaning of the Constitution.” See also State ex rel. v. Woodruff, 120 Ark. 406, 179 S. W. 813; State v. Hughes, 104 Mo. 459, 16 S. W. 489; State v. Shields, 4 Mo. App. 259; State v. Etchman, 189 Mo. 648, 88 S. W. 643; Greene County v. Lydy, 263 Mo. 77, 172 S. W. 376, Ann. Cas. 1917C, p. 274.
The full force of this principle has been recognized in even the more recent decisions of this court. For instance, in the opinion in Cannon v. May, 183 Ark. 107, 35 S. W. (2d) 70, the court is careful to remark: “In this opinion in the case of Webb v. Adams, supra, (180 Ark. 713, 23 S. W. (2d) 617) on rehearing, we further said: ‘In this connection we do not wish to be understood as impairing in the least the force of the decisions in State v. Crawford, 35 Ark. 236, which holds that a statute settling accounts between the State and certain parties is a general and not a special act; and in Waterman v. Hawkins, 75 Ark. 120, 86 S. W. 844, holding that statutes establishing or abolishing separate courts relate to the administration of justice, and are not either local or special in their operation. This is in recognition of that principle of State sovereignty under which the State, through its Legislature, may protect its own interest, and by virtue of it the Legislature may treat every subject of sovereignty as within a class by itself, and bills of that kind are usually held to be general and not local or special laws. There are cases where the State, by its Legislature, commits the discharge of its sovereign political functions to agencies selected by it for that purpose, and such acts have usually been held to be general acts’.”
The court again approved the Missouri decisions hereinbefore referred to by stating: “The Supreme Court of Missouri based its holding on the principle that the judicial system of the .State was a whole, and that acts dealing with the courts have been usually held general, although not applicable to every court of like nature in the State. The ruling proceeds upon the doctrine that the judicial department of the State is a ‘composite unit ’. ’ ’
The clerk of the Pulaski County Chancery Court, under the statutes of this State, is a very vital part of the court organization. Without him there is no court. He is required to perform numerous duties pertaining to judicial functions as well as many administrative matters of the court. Act No. 21 therefore deals directly with the necessary functions of a court for the entire State of Arkansas, and is a general act.
Furthermore, a study of the decisions hereinbefore cited establishes the well-recognized principle that, where there is a specific grant of power confe'rred by the Constitution upon the Legislature upon any certain or particular subject, an act passed in pursuance of such grant will not be held unconstitutional upon the ground that it is local or special legislation. See also Kenefick v. City of St. Louis, 127 Mo. 10, 29 S. W. 241; Spaulding v. Brady, 128 Mo. 658, 31 S. W. 104.
Section 15, article 7 of the Constitution is a specific grant of power conferred by the Constitution upon the General Assembly of Arkansas to establish chancery courts. As will be hereinafter mentioned, the Pu laski County Chancery Court has always been treated as unique since its original creation. The Legislature, not being expressly prohibited by the Constitution, is fully authorized to create separate courts of chancery. This necessarily infers the power to provide its complete organization, and there is no constitutional inhibition against providing separate clerks for chancery courts. The clerks of chancery courts are at present the result of legislation and are not constitutional officers. See § 2196, Crawford & Moses’ Digest. If the Legislature has the power to create the office of chancery clerk under the provisions of the Constitution, it is not unreasonable to conclude that it also - has the power to provide the manner of filling that office, its tenure, and all other necessary provisions to make the organization of the court complete and effective. We therefore conclude that act No. 21 is a general act, not only because it deals exclusively with the functions of a court of Statewide jurisdiction and importance, hut because the Legislature in passing the act in question was exercising a specific grant of power conferred upon it by the Constitution of the State.
The majority of the court is also of the opinion that the act is' not local or special because it is general in its terms, and is not based upon an unreasonable or arbitrary classification. The act affects every one alike coming within its general terms, and is not to be nullified merely because under present conditions only the county of the seat of the State government happens to, fall within the general classification.
A review of the history of the Pulaski County Chancery Court discloses that both the Constitution makers of the State and her General Assemblies have always considered this court as being within a classification unique to Pulaski County. It was created by the act of January 15, 1855, as amended by act of January 13, 1857, under the provisions of the Constitution of 1836. The distinctive classification of this court was recognized in the Constitution of 1874 by the provisions of § 44 of article 7. It was recognized by the G-eneral Assembly as a court of special distinction in act No. 106, approved April 1, 1885, which created the first chancery district of the State, § 18 of the act reciting: “That, inasmuch as the State will necessarily have business, and be interested in cases arising within the jurisdiction of the chancery court of Pulaski County, where the seat of government is situated, the said court shall be provided with a court room and clerk’s office, for the accommodation of said chancery court, in the State House building. ’ ’
Being the seat of the State government, this court exercised jurisdiction over the constitutional officers of the State, and the court may well take judicial knowledge of the fact that every citizen of the State is interested in a large body of the decisions of this court which are applicable to well nigh every department of the State government and organization. Inasmuch as the clerk of this court is exclusively a judicial officer, it cannot be said to be inappropriate that he shall be treated differently from the other clerks of the State who are not exclusively judicial officers. Many cogent reasons for the classification adopted by act No. 21 ■ are suggested in able argument of counsel and come to mind, but suffice it to say that the majority of the court are of the opinion that the classification adopted by the Legislature cannot be said to be either unreasonable or arbitrary.
For either of the several reasons suggested, the judgment of the lower court is correct, and it is therefore affirmed.
Mr. Justice Mehaeey, having certified his disqualification, did not participate.
Hart, C. J., and Kirby, J., dissent. | [
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Frauenthal, J.
This is an action instituted by J. E. Williford and Sudie Reddit,- the plaintiffs below, seeking to impress a trust upon a tract of land in Crittenden County, the legal title to which had been obtained by the defendants, S. P. Williford and his wife, E. E. Williford, and to divest them there of and vest same in plaintiffs. The complaint alleged that the land, which is described as the west half of section 12, township 4 north, range 7 east, was owned by J. M. Williford, who departed this life in 1887, leaving surviving him as his only heirs the plaintiffs, who are his children; that'the defendant S. P. Williford was duly appointed administrator of the estate of said J. M. Williford, and in that capacity took charge of said land and attended to paying the taxes thereon. It was also alleged that in 1886 Bettie and Ida Burgett instituted an ejectment suit against said J. M. Williford for the recovery of the above and other lands, which, after the death of J. M. Williford, was revived in the name of his said administrator and heirs. That suit resulted in a judgment in favor of the representatives of said Williford and was appealed to the Supreme Court, where the judgment was affirmed except as to a tract of land not involved in the present case. It was further alleged that said S. P. Williford as the administrator of said estate, and also representing the plaintiffs, attended to the above suit; that, after the determination of said case by the Supreme Court, the further litigation thereof was compromised, and, in pursuance of such compromise agreement, the said Burgetts conveyed to said J. E. Williford and Sudie Redditt a number of tracts of land, amongst which was the land involved in the present case. It was also alleged that, during the progress of said administration and said above litigation, the said S.P. Williford permitted a portion of said lands to forfeit for the nonpayment of levee taxes, and the remainder to forfeit for the nonpayment of State and county taxes; that through the sales therefor the defendant S. P. Williford obtained the legal title to said land, and subsequently conveyed same to his wife.
The defendants denied that the land involved in the. present case was ever owned by J. M. Williford, or that he ever claimed the same, or that he was ever in the possession thereof. They denied that said land was included in the ejectment suit instituted by the said Burgetts against said J. M. Williford, or that the defendant S. P. Williford, as administrator of said estate of J. M. Williford, deceased, had ever taken charge of or paid taxes on said land. They also denied that the land was ever owned by said Bettie and Ida Burgett. They alleged that a portion of the land was sold under decree of the Crittenden Chancery Court in a suit instituted by the St. Francis Levee Board for the nonpayment of levee taxes thereon for the years of 1895, 1896 and 1897, and was purchased by S. P. Williford, who, in January, 1899, obtained the commissioner’s deed therefor after due confirmation of such sale; that the remainder .of said land was sold to the State for the nonpayment of taxes, and was thereafter acquired by the St. Francis Levee District, which sold and conveyed same to J. F. Hodges on March 21, 1896, and that said Hodges subsequently conveyed same to S. P. Williford. They also alleged that they had held the open and adverse possession of said land for more than seven years prior to the institution of the present suit, and they pleaded in bar of any claim or right that plaintiffs might have in the land the seven years, five years and two years statutes of limitation.
It appears that the present action was instituted on September 2, 1907, in the names of both J. E. Williford and Sudie Redditt as parties plaintiff, and that N. W. Norton, Esq., an attorney of the lower court, prepared and filed the complaint and therein represented the' plaintiff J. E. Williford. On February 24, 1908, upon the motion of said N. W. Norton, Esq., the chancery court entered an order dismissing the case as to said J. E. Williford. On September 27, 1910, said J. E. Williford filed a petition in said chancery court asking that he be made or reinstated as a party plaintiff to the suit, upon the ground that same had been dismissed as to him without his knowledge and without authority. The lower court refused this request, and from the judgment denying his prayer to be made a party J. E. Williford has appealed to this court. Thereafter the case proceeded with said Sudie Reddit as sole plaintiff. Upon the final hearing, the court entered a decree dismissing the complaint for want of equity.
Relative to 'the petition of J. E. Williford to be made or reinstated as a party plaintiff to the suit, the chancery court heard testimony from which it found that said N. W. Norton, Esq., was duly employed by J. E. Williford to institute the action for him and was authorized thereafter to dismiss same as to him. From the testimony of N. W Norton, Esq., and the letters exhibited by him, we think the court was warranted in the finding which it made. After the nonsuit, J. E. Williford had, by virtue of section 5083 of Kirby’s Digest, a right to bring a new suit within a year after he had suffered the nonsuit; and it appears that the, court denied the petition to make or reinstate him as a party because it was not filed within said year. But we are of the opinion that this statute did not narrow; the period of limitation, but extended the period provided by the general statute of limitation applicable to this cause of action, so that, if J. E. Williford was not then barred as to this action by the general statute of limitátion, he had still the right to institute a new suit. Love v. Cahn, 93 Ark. 215. But, according to the view which we have taken of the merits of this case under the evidence which was adduced at the trial thereof, we do not deem it necessary to pass upon the question as to whether or not the court was in error or abused its discretion in refusing said J. E. Williford to be made or reinstated as a party plaintiff in the action. And for the same reason we do not deem it necessary to note or pass upon the questions raised by the pleas of the statute of limitation.
This was an action instituted for the purpose of impressing upon the land involved herein a constructive trust and to declare the defendants as trustees thereof for the benefit of the plaintiffs. The right of plaintiffs to this relief is predicated upon the allegations that the land was owned originally by their father, from whom they acquired title by descent, and that the defendant S. P. Williford occupied a relation of trust and confidence as to them in regard to this property which he violated by purchasing the land for the nonpayment of taxes and by thus obtaining the legal title thereto. It has been held that no one can be permitted to purchase an interest where he has a duty to perform that is inconsistent with the character of a purchaser. When, therefore, an administrator or a trustee, without knowledge of his beneficiary, purchases the property charged to his care, either at a private or public sale, equity will impress a constructive trust upon the property so purchased for the benefit of those beneficially entitled thereto. 3 Pom. Eq. § 1052; Wright v. Walker, 30 Ark. 44; West v. Waddell, 33 Ark. 575; McGaughey v. Brown, 46 Ark. 25; Montgomery v. Black, 75 Ark. 184; Bank of Pine Bluff v. Levi, 90 Ark. 166. The foundation of the right of the plaintiffs to have a trust for their benefit declared upon this land is based upon the allegation and claim that this land was owned and possessed by their father, and thatS. P. Williford, as his administrator, was charged with the duty of caring for and protecting it from sale, and thereby was prohibited under the law from purchasing it. The primary fact, then, to determine is whether or not the land was owned by the father of plaintiffs. For, if the land was not owned by him, then S. P. Williford, as his administrator, owed no duty and was not chargeable with any trust relative thereto, If the land was not owned by plaintiffs’ father, then it was not litigated in said suit instituted by said Burgetts, and, therefore, S. P. Williford did not as agent or otherwise, during said litigation, occupy any relation of trust or confidence relative thereto for the plaintiffs in the present case.
The testimony on the part of the defendants tended to prove that the land was never owned, possessed or claimed by J. M. Williford. . The defendant S. P. Williford, who was well acquainted with all the lands claimed or owned, by his brother, J. M. Williford, testified positively that said J. M. Williford never owned or claimed this land; and there was no witness who testified that he did own it, or that he ever claimed it or paid taxes on it or was ever in possession of it. This testimony tended to prove that the land originally belonged to the State and was acquired by it as Internal Improvement land. In 1874 M. A. Wolf obtained from the State title to the northwest quarter of said section 12 and conveyed it to the Second National Bank of St. Louis in 1878, which, during the same year, executed a deed therefor to Orman Pierson, and he in 1884 conveyed it to Robert Pierson. The tax books show that Orman and Robert Pierson paid the taxes On this land continuously for the years from 1883 to 1893. On February 14, 1898, the Crittenden Chancery Court, in a suit pending in that court instituted by the St. Francis Levee Board, entered a decree subjecting this land to sale for the nonpayment of the levee taxes for the years of 1895, 1896 and 1897. Under that decree this portion of the land was sold to S. P. Williford, and the sale thereof was duly confirmed at the July term, .1898, of said court, and deed therefor was executed by the commissioner of said court to S. P. Williford on January 18, 1899. This testimony tended further to prove that Wm. Chapline acquired from the State the southwest quarter of said section 12, and that thereafter it had forfeited to the State for the nonpayment of the taxes of 1884 and 1885; that by virtue of an 'áct of the Legislature entitled “An act to donate to the St. Francis Levee District all the lands of this State within the limits of said levee district,” which became a law March 29, 1893 (Acts 1893, p. 172), the St. Francis Levee District acquired the State’s title to the land, and in 1896 conveyed it to J. F. Hodges, who at that time was a partner of said S. P. Williford; thereafter the said Hodges conveyed 120 acres of this land to said S. P. Williford. From this testimony, we think the court was warranted in finding that the land involved in this suit was not owned by J. M. Williford.
The plaintiffs introduced no record evidence to show, nor did they offer any witness who testified, that this land was ever owned by or in the possession of said J. M. Williford. They urge that this is shown by the proceedings in said suit instituted by Bettie and Ida Burgett against J. M. Williford. That was an ejectment suit instituted on November 16, 1886, in the law court for the recovery of about 3,000 acres of land, and it was appealed to the Supreme Court. The opinion was rendered upon that appeal on May 7, 1892, and will be found in 56 Ark. 187, under the style of Burgett v. Williford. The original complaint and papers in that case, however, were lost, and the transcript filed in the Supreme Court upon said appeal was also lost, and no testimony as to what these various lost documents contained was introduced upon the trial of this case. The only documents relating to that suit in the lower and appellate courts that were introduced were the abstracts and briefs filed by counsel for appellants and appellee in the Supreme Court. From these we are wholly unable to find or say whether the tract of land involved in the present suit was mentioned in the complaint filed in that case, or whether the defendants in that case claimed any right or ownership in this tract of land. In some parts of the abstract the tract of land is referred to; but that suit involved a great number of tracts of land, and in showing the deraignment of title to these various tracts the description of the tract involved in this suit may have been set out in some of the deeds with the description of the lands which were actually involved in that case. However that may be, in said brief of appellees filed in the Supreme Court, it is stated that J. M. Williford claimed title to the vari* ous lands then litigated for under and by virtue of a purchase made by him from and a deed executed to him by Ferguson and Hampson. From this deed and the testimony introduced, it appears that on January 19, 1880, Ferguson and Hampson sold to J. M. Williford 2,878.34 acres of land for $13,625, and on that day executed to him a bond for title therefor, and later, on March 19,1885, executed to him a deed, which was thereafter duly recorded, and in which the lands are specifically described. Now, the land involved in the present suit is not contained in said deed, and it is not contended by counsel for plaintiffs that J. M. Williford acquired said land from said Ferguson and Hampson. From this statement of the brief of appellees filed in the Supreme Court of what the answer in said case contained, we are led to believe that the only lands involved in that litigation which J. M. Williford claimed title to were those described in the deed which he obtained from said Ferguson and Hampson. We are also influenced in making this finding by reason of the controlling question discussed in the opinion which was rendered by this court in that case. It was there held that the Burgetts, who were the appellants in that case, were concluded from setting up any title to the lands by reason of a decree rendered against them in a case instituted by said Ferguson and Hampson against them for the purpose of quieting the title thereto. That case was filed on September 29, 1880, and the decree therein was rendered in April, 1881, and the tract of land involved in the present case is not embraced in that decree.
There was no other testimony introduced by the plaintiffs upon the trial of this case showing any title, possession of or claim made by J. M. Williford to the land involved in the present suit. There was no testimony showing or tending to show from what person or source he acquired this land, if he ever owned it or laid claim to it; nor is there any testimony showing that he ever paid taxes thereon. Nor can we say from the meager references in said briefs that -there is sufficient evidence showing that this land was involved in the litigation between the Burgetts and J. M. Williford. It appears that in 1900 Bettie and Ida Burgett executed to the plaintiffs a deed for a number of tracts of land, including the land involved in this suit. It is contended that this conveyance was made in compromise of that litigation; but it may be that they simply conveyed to the plaintiffs all lands to which they laid any claim in Crittenden County, and it does not necessarily follow that the land involved in the present suit was also involved in the case brought by said Burgetts. But whether this tract'was described in the complaint in that suit or not, it does not appear from any testimony which was adduced upon the trial of the present case that J. M. Williford ever owned or claimed to own any interest in this land. The rights of plaintiffs to have a constructive trust declared upon this land as against the defendants must depend upon the proof of title and ownership of their father, J. M. Williford, to this land, and their right to relief must fail with a failure to make that proof. The burden was upon the plaintiffs to make this showing by a preponderance of the evidence.
It is apparent, we think, that the evidence which was adduced upon the trial of the present case is not sufficient to authorize the court to declare that this land was owned by J. M. Williford, and that S. P. Williford purchased it while acting as his administrator and in a fiduciary relation to the plaintiffs. The chancellor found that this land did not belong to J. M. Williford; that S. P. Williford occupied no trust relation either to his estate or to the plaintiffs when he purchased it; that any other claim to or interest in the land that the plaintiffs may have obtained from the Burgetts, if they owned any right or interest in the land, was barred by the statute of limitation; and upon an examination of the "entire record we are of the opinion that these findings are not contrary to the weight of the evidence adduced in this case.
Finding no errors in the decree rendered by the lower court, it is accordingly affirmed. | [
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Wood, J.,
(after stating the facts). Upon the authority of Gross v. State, 89 Ark. 482, and other recent cases, the Attorney General contends that, inasmuch as the transcript filed with the clerk of this court within the sixty days did not show the record entry of a judgment against the appellant, his appeal was not perfected in time. ’ These cases hold that to give this court jurisdiction on appeal the record must be lodged in the office of the clerk of the Supreme Court within sixty days after the judgment. See also section 2614, Kirby’s Digest.
The majority of the court are of the opinion that this statute is complied with when there is a transcript filed within sixty days wherein the bill of exceptions is set out, which shows that a trial was had upon the testimony and a final judgment was rendered although that judgment is not copied as a part of the record. The transcript thus showing is sufficient to give this court jurisdiction, and, although the court will not look to the bill of exceptions to see what the judgment of the court was, as- that is not the proper place for it, still the court will, upon filing of such transcript, permit the appellant to bring up by certiorari the record entry of the judgment. This has been done in this case, and we have now embodied, as a part of the record, the final judgment of the court from which the appeal has been prosecuted. In the opinion of the majority of the court it is not essential to give this court jurisdiction that the entire record of the proceedings of the trial court shall be lodged in the office of the clerk of the Supreme Court within the sixty days; but if a transcript is lodged within the sixty days, from which this court can see that there was a trial and a final judgment rendered, by a statement to that effect in the bill of exceptions, then the court will entertain the appeal and allow the transcript of the record to be amended to show the record entry of the final judgment. A recital in the bill of exceptions to the effect that a judgment was rendered and a copy of-the judgment itself set forth therein is not sufficient evidence of such judgment. Gray v. Singer, 137 Ind. 257; Clark v, McDade, 165 U. S. 168.
But where there is such a statement and such a copy in the bill of exceptions contained in the transcript lodged in this court, the court will entertain the appeal and allow the transcript to be amended so as to embody the record entry of the judgment in the court below. Of course, if the transcript can not be so amended for the reason that no final judgment has been rendered in the court below, then this court would dismiss the appeal, notwithstanding the statement in the bill of exceptions that there had been a final judgment, and even though a purported copy of such final judgment were contained in the bill of exceptions, for, in. the last analysis, thé court would have to look to the record proper for the judgment, and not to the bill of exceptions. Arkadelphia Lbr. Co. v. Asman, 72 Ark. 320; Berger v. Houghton, 84 Ark. 343.
Upon the issue as to whether or not the appellant had violated his agreement with the prosecuting attorney, as set forth in the bill of exceptions, the court found “that the defendant heretofore, during this term of court, entered his plea of guilty in this cause, and that the same was continued, for the term in pursuance of an agreement made between the prosecuting attorney and the defendant and his counsel, which agreement was offered in evidence.” The court further found “that said plea of guilty was entered upon the condition that the court’s discretion to impose a fine under the defendant's plea should be exercised in the event only that the defendant violated the terms of the said agreement; and upon a consideration of all the evidence offered in this cause the court finds that said agreement was in fact violated by the defendant, and therefore the court should now impose a fine in this case.”
It thus appears that the plea of guilty was entered in this case upon condition that the court would impose a fine under the plea only in the event that the defendant violated the terms of the agreement. In other words, if the appellant complied with the terms of his agreement not to sell liquor in the future as therein specified, then the court would not impose a fine upon him in the cases in which he had entered pleas of guilty.
The court expressly finds that the plea of guilty was entered upon condition, and the effect of the court’s construction of the agreement was that it permitted the court to allow the appellant to enter pleas of guilty upon condition that the punishment which the law imposes for a violation of the statute would not be inflicted on appellant for past offenses provided appellant complied with the law in the future.
Now, the law does not authorize any such agreements as here entered into with the prosecuting attorney, and pleas of guilty can not be accepted on condition that the fines imposed by statute as a result of a violation of the law will be pretermitted provided the offenders do not commit similar. off enses in the future. There is no authority in the statute “for a plea of guilty to be entered and received on any kind of condition, or for judgment to be suspended on condition.” Joiner v. State, 94 Ark. 198.
Under the law a party is' either guilty or not guilty; and when he enters á plea-of guilty upon the indictment under a statute which he has violated, the law fixes the punishment, which it is not in the discretion of the court to withhold unless the.plea of guilty is withdrawn. Joiner v. State, supra.
While it is within the discretion of the court to permit a plea of guilty to be withdrawn, it is not within the power of the court to withhold the punishment if the plea of guilty is not withdrawn. Kirby’s Digest, § 2296.
In the case, since the court finds that the appellant’s pleas of guilty were entered upon condition, it results that they were not such plea of guilty as the law authorizes or contemplates, and therefore the court was not justified in inflicting punishment upon such pleas. In the case of Joiner v. State, supra, “the record made by the clerk at the time showed that the pleas of guilty were entered unconditionally.” The court should not in any case except a plea of guilty on condition, and can not render judgment upon a plea of guilty that has been entered upon condition. If the court has accepted and has entered on record a plea of' guilty on condition, then the only authority which the court has over such a plea is to allow the same to be withdrawn and to allow a proper plea to be entered. The only plea is either guilty or not guilty.
This case differs from the case of Joiner v. State, supra, in the very fact that in that case the plea was entered unconditionally, whereas in this case, as found by the court, the plea was entered upon certain conditions. The question in Joiner v. State was as to whether the court could exercise its discretion to allow the appellant to withdraw his plea of guilty which, as appeared from the record, was properly entered, that is, unconditionally. That, under the statute, as we have seen, was within the court’s discretion.
Here the question, is as to whether or not the court has the discretion to allow a plea of guilty to be entered upon a condition, and thereafter render a judgment against and impose a punishment upon the party entering such plea because he had failed to comply with the conditions upon which the plea was entered. The whole proceeding was without authority of law and void. The court should have granted appellant’s motion for a new trial arid have allowed him to enter his plea of not guilty, as requested. It was not within the discretion of the court, upon the showing made in this record, to withhold such request.
The judgment is therefore reversed, and the cause is remanded with directions to allow appellant to enter his plea of not guilty and for further proceedings according to law.
McCulloch, C. J., and Kirby, J., dissent. | [
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Ed. F. MoFaddin, Justice.
The question presented is whether Act 115 of 1955 applies to a suburban improvement district organized under the provisions of § 20-701, et seq., Ark. Stats. In considering the posed issue, we leave open any and all questions regarding the constitutionality of the Act 115. Constitutional questions are never decided unless necessary. Porter v. Waterman, 77 Ark. 383, 91 S. W. 754; Honea v. Federal Land Bank of St. Louis, 187 Ark. 619, 61 S. W. 2d 436; and Winston v. Personal Finance, 220 Ark. 580, 249 S. W. 2d 315.
The appellants are the Commissioners of Highway 67 Water Pipe Line Improvement District No. 25 (hereinafter called “District”), created by order of the Pulaski Chancery Court on January 3, 1955, pursuant to said § 20-701, et seq., Ark. Stats. The District was created —as its name implies — to lay a water pipe line for use of suburban property owners. On April 20, 1955, appellee filed his complaint in the Pulaski Chancery Court, alleging : (1) that he was a property owner in the District and sued for himself and all other property owners; (2) that the District originally intended to issue $175,000.00 in bonds, which was sufficient to make the contemplated improvement; and (3) that after the passage of Act 115 of 1955 the Commissioners decided to increase the bond issue to $185,000.00 because the provisions of the Act will add $10,000.00 to the labor cost of the improvement. The complaint also alleged:
“Said Act 115 of 1955 is not applicable to the construction work to be done by said District. It is not a ‘taxing agency’ within the meaning of that phrase as used in said Act 115. On the contrary, it pays for the cost of the improvement by special assessments levied against the lands of the property owners in the District. The improvement which is to be made by the District does not come within the meaning of ‘public buildings or public works’ as used in said Act 115. On the contrary, the funds used for the construction work come sole]y from the property owners in the District and the improvement is made, not for the benefit of the public but for the property owners who bear the cost thereof.”
The prayer of the complaint was that the Court find that the said Act 115 was not applicable to this improvement and that the District be empowered to issue only $175,000.00 of bonds. The answer stated that the Act 115 was' applicable to the District and prayed that the complaint be dismissed. The case was tried on facts stipulated substantially as hereinbefore stated; and resulted in a decree holding that the Act 115 was not applicable to the District. This appeal challenges that decree.
The Act 115 is captioned:
“An Act to provide for minimum prevailing wages lo be paid on certain state, county, municipal or taxing agency, public construction or works; to repeal conflicting laws; to declare an emergency; and for other purposes.”
Section 1 of the Act says:
‘ ‘ The advertised specifications for every contract to which the State of Arkansas, any county of this state, any city or town in this state, or any taxing agency of this state, or any of the agencies thereof, is a party, for construction ... of public buildings or public works of the State of Arkansas, any of its counties, cities or towns, or of any taxing agencies of this state except as herein provided . . . shall contain a provision stating the minimum wages. . . .”
Section 7 of the Act says;
“It is the purpose and intent of this Act to provide and prescribe and establish minimum prevailing wage scales on all public state, county, municipal or taxing agency buildings and -works, except as herein exempted. . . (Italics our own.)
If the suburban improvement district here involved is a “taxing agency,” then the Act applies. That is the point for decision.
Our method of making improvements, by the formation of districts which make assessments of benefits against the property for the improvement made, has long been recognized in legislative enactments and judicial decisions. A scholarly two-volume treatise was written by Honorable Horace Sloan of the Jonesboro Bar in 1928, entitled “The Law of Improvement Districts in Arkansas.” In § 69 of that treatise, Mr. Sloan quoted Art. II, § 23 of our Constitution:
“ ‘The State’s ancient right of eminent domain and of taxation is herein fully and expressly conceded; and the G-eneral Assembly may delegate the taxing power, with the necessary restriction, to the State’s subordinate political and municipal corporations to the extent of providing for their existence, maintenance and well being, but no further.’ ”
Immediately following the above quotation, and in § 70 of his work, Mr. Sloan states the following as the rationale of our holdings:
“The words ‘taxation’ and ‘the taxing power,’ as employed in the foregoing provision, refer to general taxation only and not to local assessments. The words ‘the State’s subordinate political and municipal corporations’ do not include districts (whether corporations or not) created for the special purpose of constructing or maintaining public improvements to be paid for by local assessments on the real property benefited, but do include counties and municipal corporations. Under these definitions there is no constitutional restriction to prevent the Legislature from delegating to' an improvement district the power to fix and levy local assessments upon property specially and peculiarly benefited; but it can not delegate to an improvement district any powers of general taxation. ’ ’
Our cases hold that a local improvement district is not a taxing agency. In Whaley v. Northern Road Imp. Dist., 152 Ark. 573, 240 S. W. 1, 24 A. L. R. 934, we said:
“. . . a local improvement district is not a subordinate political agency of the State, but is merely a governmental agency created for the specific purpose of constructing or maintaining a local improvement. Altheimer v. Board of Directors of Plum Bayou Levee District, 79 Ark. 229. General powers of taxation cannot be delegated to such an agency, for, as we have already said, the only theory upon which taxation of any kind can be justified in the construction of local improvements is that benefits accrue corresponding in value with the cost of the improvement. ’ ’
Again, in State v. Berry, 158 Ark. 84, 249 S. W. 572, we said:
"Taking all of the provisions of this act together, it would be more appropriately classified as a delegation of power to improvement districts to lay a privilege tax than a delegation of power to the county. But it cannot be upheld as a delegation of power to improvement districts, for they do not constitute subordinate political agencies of the State for the purpose of taxation, under the Constitution, and are therefore not authorized to lay a tax of any kind. ’ ’
It is true that in some of our Statutes regarding improvement districts the Legislature has used the words "tax” and "taxes” in reference to annual payments of installments of benefits and interest ; but it is clear that in all such instances the words "tax” and "taxes” were intended to mean "matured assessment of benefits and interest due thereon.” It would do violence to our entire theory of assessment of benefits of local improvement districts to allow these isolated instances of the loose use of the words “tax” and “taxes” to be seized on to support a claim that an improvement district levied a tax, particularly in view of the cases heretofore cited and the many cases in which this Court has repeatedly held to the contrary, some of which are: Sanders v. Brown, 65 Ark. 498, 47 S. W. 461; Paving Dist. of Ft. Smith v. Sisters of Mercy, 86 Ark. 109, 109 S. W. 1165; Shibley v. Ft. Smith Dist., 96 Ark. 410, 132 S. W. 444; and Lewis v. Delinquent Lands, 182 Ark. 838, 33 S. W. 2d 379.
We therefore conclude that the Chancery Court was correct in holding that the district here involved is not a “taxing agency” within the purview of Act 115 of 1955.
Accordingly the decree is affirmed.
Justice George Rose Smith not participating.
Originally the Commissioner of Labor of Arkansas intervened to defend the Act; but has been allowed to withdraw after both sides agreed that the question of the constitutionality of the Act could be eliminated from the decree.
The Legislative records show that the emergency clause received sufficient affirmative votes in each branch of the Legislature to make the Act effective immediately upon approval.
Section 3 of the Act says that it does not apply to any highway, state or bridge construction.
A few such instances may be noticed: in §§ 20-710 to 712, inclusive, Ark. Stats, (the suburban improvement district law here involved) the word “taxes” occurs several times; likewise in §§ 20-1120-1128, inclusive, in speaking of various kinds of districts, the word “taxes” occurs several times; and also in § 20-412 and in § 20-420 (the municipal improvement district law) the word “tax” and the word “taxes” occur several times. | [
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Ed. F. McFaddin, Justice.
The question here presented is the legality of the picketing in which the appellants were engaged. The Chancery Court found that the picketing was unlawful and issued a permanent injunction. The correctness of that decree is challenged by appellants, who are the International Brotherhood of Electrical Workers Local Union No. 295, and Harold Veazey the business agent of the Local Union.
Broadmoor is a residential addition in the City of Little Rock and contains an area of 190 acres. In the addition there are many streets dedicated and used by the public. The addition is just West of Hayes Street; there are two streets opening from Hayes Street into Broadmoor; and there are two other streets that lead from Broadmoor to other streets, in Little Rock. In short, there are four streets that serve as ways of ingress and egress for Broadmoor Addition, in which are many residences. Fausett and Company are the developers of Broadmoor; and the appellee, Broadmoor Builders, Inc., is the Fausett corporation that serves as a general contractor for the building of the homes in the addition. According to the evidence in the record here, all the electrical work in the construction of the houses in Broadmoor was sub-contracted by Broadmoor to Price-Fewell Company, an electrical firm.
A short time prior to July 9,1954, Mr. Goode, Secretary of the Building Trades Council of Little Rock, contacted appellee for a conference for the purpose of having the electrical sub-contracts let to union contractors for all electrical work on any houses to be constructed in Broadmoor. Mrs. Fausett, secretary of the appellee company, advised Mr. Goode that the electrical work was already sub-contracted to Price-Fewell Company and that there was nothing that appellee could do about it. Mrs. Fausett testified, without contradiction, that Mr. Goode told her “ . . . there are always loopholes where you can break contracts.”
The effort of Mr. Goode, as above stated, was the only attempt by any of the unions to obtain sub-contracts for union sub-contractors, to gain recognition as bargaining agents, to obtain a higher wage scale, or to obtain any other benefits from appellee or Price-Fewell Company. Then on July 9, 1954, the appellant Union placed pickets at each of the four entrances to Broad-moor Addition, as hereinbefore described. Each picket carried a sign reading:
“No member of L.U. 295 I.B.E.W. Employed on this Job.”
Appellee sought injunction to restrain the picketing, claiming (inter alia):
* ‘ The union is picketing the plaintiff for the further unlawful purpose of forcing and coercing the plaintiff and its employees in the choice of whether the plaintiff will employ union labor and whether its employees will join the unions. Said purpose is contrary to the law and public policy of Arkansas as expressed by Amendment 34 to the Constitution of Arkansas and Act 101 of 1947.
“In the course of picketing the plaintiff’s construction job, the pickets have unlawfully obstructed traffic into and out of Broadmoor Addition. The principal entrances to Broadmoor Addition lie on Hayes Street in Little Bock which is a busy thoroughfare. The unlawful action of the pickets in blocking and obstructing these entrances is causing traffic to stop on Hayes Street an abnormal length of time, obstructs the view and attention of persons entering and leaving Broadmoor Addition, and creates a serious traffic hazard. ’ ’
Among other defendants, the complaint named the present appellant Union and Harold Veazey, its business agent. These are the only appellants here. A portion of Mr. Veazey’s deposition, taken by discovery under Act 335 of 1953, was introduced by appellee; and the remainder of the deposition was introduced by appellants as their only offered evidence.
As aforesaid, the Chancery Court held that the picketing by appellants was unlawful, and issued a permanent injunction; and appellants claim that the decree violates their right of free speech under the 14th Amendment to the United States Constitution; and appellants —in addition to cases from Arkansas and other State Courts — cite the following cases from the Supreme Court of the United States: Thornhill v. Alabama, 310 U. S. 88, 84 L. Ed. 1093, 60 S. Ct. 736; American Federation of Labor v. Swing, 312 U. S. 321, 85 L. Ed. 855, 61 S. Ct. 568; Bakery & Pastry Drivers v. Wohl, 315 U. S. 769, 86 L. Ed. 1178, 62 S. Ct. 816; and Cafeteria Employees Union v. Angelos, 320 U. S. 293, 88 L. Ed. 58, 64 S. Ct. 126. And to these we add other cases from the Supreme Court of the United States involving questions of picketing, to-wit: Senn v. Tile Layers Protective Union, 301 U. S. 468, 81 L. Ed. 1229, 57 S. Ct. 857; Milk Wagon Drivers Union v. Meadowmoor Dairies, 312 U. S. 287, 85 L. Ed. 836, 61 S. Ct. 552; Carpenters & Joiners Union v. Ritter’s Cafe, 315 U. S. 722, 86 L. Ed. 1143, 62 S. Ct. 807; Lincoln Fed. Labor Union v. Northwestern Iron & Metal, Co., 335 U. S. 525, 93 L. Ed. 212, 69 S. Ct. 251; American Fed. of Labor v. American Sash & Door Co., 335 U. S. 538, 93 L. Ed. 222, 69 S. Ct. 258; Giboney v. Empire Storage & Ice Co., 336 U. S. 490, 93 L. Ed. 834, 69 S. Ct. 684; Hughes v. Superior Court, 339 U. S. 460, 94 L. Ed. 985, 70 S. Ct. 718; International Brotherhood v. Hanke, 339 U. S. 470, 94 L. Ed. 995, 70 S. Ct. 773; Building Service Employees v. Gazzam, 339 U. S. 532, 94 L. Ed. 1045, 70 S. Ct. 784; Local Union No. 10 v. Graham, 345 U. S. 192, 97 L. Ed. 946, 73 S. Ct. 585; Garner v. Teamster’s Union, 346 U. S. 485, 98 L. Ed. 228, 74 S. Ct. 161; Capital Service v. N. L. R. B., 347 U. S. 501, 98 L. Ed. 887, 74 S. Ct. 699; and United Const. Workers v. Laburnum Const. Corp., 347 U. S. 656, 98 L. Ed. 1025, 74 S. Ct. 833.
The appellee urges several contentions, each designed to obtain an affirmance of the Chancery decree which found the picketing to he unlawful. Some of these contentions are:
(1) The real purpose of the picketing was to force the appellee to breach its contract with Price-Fewell Company; and on this point appellee cites our own cases of Lion Oil Co. v. Marsh, 220 Ark. 678, 249 S. W. 2d 569; and Sheet Metal Workers v. E. W. Daniels Co., 223 Ark. 48, 264 S. W. 2d 597.
(2) The real purpose of the picketing was to force a violation of the Arkansas “Freedom to Work’-’ Constitutional Amendment No. 34, and the Act 101 of 1947, passed in pursuance to said amendment.
(3) That the assigned reason for the picketing was at variance with the rights of picketing; and on this point appellant Yeazey testified:
“Q. What was the purpose of the picketing?
“A. To advise our members that we weren’t working on the job. We have an awful lot of workers fooling around loose. We did have and have had for the last four months; and they would telephone in; ‘Is this or is that job paying the scale?’; and we would have to advise them. ’ ’
(4) That the business of appellee was not within the economic contest of any potential dispute between the Union and the sub-contractor; and on this point appellee gives Mr. Yeazey’s testimony:
“Q. The picketing was aimed at Broadmoor Builders, Inc.?
“A. Not necessarily. It just happened on that job that the electrical scale was not that which we were receiving from contractors for whom we do work and on this job they were not being paid that rate. . . .
“Q. Had you or your Union ever had any negotiations with Broadmoor Builders, Inc.?
“A. No, our local Union as a rule does not furnish work direct to the building contractor; and Mr. Fausett being a mass builder, in our catalog, he would be a gen eral contractor. Even though he does not do any electrical work, he sub-contracts it out. I couldn’t have had any contract with him. . . . We don’t do business with general contractors. We work with sub-contractors.”
We find it unnecessary to discuss any of the above listed points, because we rest our opinion on another ground; that is, the picketing was too broad and in too general a locality. It interfered with normal business transportation, entirely disconnected from the purpose or designs of lawful picketing. It was shown that PricePewell Company was engaged in doing the electrical work in only six houses in Broadmoor. Addition; that at least 75 other houses were under construction in -the 190-acre area of the Broadmoor Addition; that at these other 75 houses there were no electrical workers and there was no labor dispute or other dispute of any kind; that these other 75 jobs of construction were in need of concrete, lumber, doors, etc.; that, because of appellant’s picketing of the four streets leading into Broadmoor, the truck-drivers would not deliver concrete, lumber, doors, etc. to the other 75 jobs entirely distinct and separated from the six jobs on which there were electrical workers; that truck shipments of doors would normally have been delivered direct to some of the other 75 jobs, but, because of the pickets of the appellant over all of the four streets leading into Broadmoor, the truck shipments were left at a storage depot in Little Rock and appellee was forced to have the shipments delivered to the jobs by other truckers Avho would cross the picket lines of the appellant.
The right to picket under lawful conditions has been recognized in numerous cases by this Court, some of which are: Local Union v. Asimos, 216 Ark. 694, 227 S. W. 2d 154; Boyd v. Dodge, 217 Ark. 919, 234 S. W. 2d 204; and Self v. Taylor, 217 Ark. 953, 235 S. W. 2d 45. The Supreme Court of the United States has recognized that the right of picketing has its limitations. In Giboney v. Empire Storage Co. (supra), picketing was enjoined where its purpose was to force a violation of the law. In Hughes v. Superior Court (supra) it was recognized that the picketing of a store to compel the employment of a proportion of Negro clerks was against the public policy of California. In Hanke v. International Brotherhood (supra) the U. S. Supreme Court declared that the Courts, as well as the Legislature, may declare the public policy of the State.
In the case of Mo. Pac. v. United Brick & Clay Workers Union, 218 Ark. 707, 238 S. W. 2d 945, we refused to enjoin picketing which prevented the delivery of railroad shipments by a carrier to the affected plant; but at the first session of the Legislature after our opinion, the Arkansas Legislature passed Act 257 of 1953, which declared that picketing was unlawful when it prevented the moving of trains to a plant when the railroad company was not a party to the strike. That enactment of the Legislature as to trains clearly indicates the public policy of Arkansas, which we now declare, as to the delivery of merchandise or other articles to persons or places entirely disconnected from any picketing that might be legal as against the limited person or place to be picketed. Here, truck shipments to 75 jobs of Broadmoor Builders, Inc. were effectively stopped by the presence of pickets who were concerned with only six jobs of PriceFewell Company; and it has been recognized in many cases that the respecting of picket lines is prevalent. If the appellant’s picket line was aimed at anyone it was directed toward Price-Fewell Company, which had the electrical snb-eontract and was working on six electrical construction jobs in Broadmoor. The appellant Union— as testified by Mr. Veazey — had no dispute with the appellee and would not have entered into a contract with the appellee, who is a general contractor. By placing the pickets as they were, appellants effectively stopped the delivery of concrete, doors, lumber, etc., to 75 jobs of appellee’s construction, and these jobs were in no way connected with the electrical work then being done by Price-Fewell Company on six other jobs. If appellant could legally picket all the streets leading into Broad-moor because there were six houses under construction therein where there were electrical workers, then, by the same token, the appellant could picket all of the highways leading into Little Eock because Price-Fewell Company had six jobs in the City on which no member of appellant Union was employed, and on which jobs the wages paid were below the Union scale. The picketing by appellant should have been confined to the jobs on which PriceFewell Company was working — provided the matters between Price-Fewell Company and the Union were at the picketing stage — and not to the entire addition of 190 acres on which were under construction 75 other houses in no way connected with the kind of work desired to be performed by appellant Union. We therefore conclude that the appellant’s picketing is unlawful under the facts in this case; and the decree is affirmed.
Mrs. Fausett testified that Mr. Goode’s purpose was that he wanted the sub-contracts let to union sub-contractors. This was not denied in any way; and Mr. Veazey said that Mr. Goode reported the conversations with Mrs. Fausett just as Mrs. Fausett had testified.
When appellee obtained injunctions against picketing in the Chancery Court in this case, there were other defendants besides the present appellee: Bricklayers, Masons & Plasterers International Union of America A.F.L., Local No. 1, and Ted Brewer, its business agent, were defendants, as well as United Brotherhood of Carpenters & Joiners of America Local Union No. 690 and Z. W. Burnett, its business agent. The said Local No. 1 and Local No. 690 and the business agent of each have not appealed to this Court from the injunction issued by the Chancery Court.
Mr. Veazey also testified:
“Q. Was there anything Broadmoor Builders, Inc., could have done that would have brought about a removal of the Local No. 295 pickets?
“A. Yes, they could have insisted that the prevailing wage scale for electrical workers be paid. . . .
“Q. Assuming that Broadmoor Builders, Inc., did have a contract with Price-Fewell, was there anything that Broadmoor could have done which would have brought about the removal of your pickets?
“A. I don’t know. . . .”
In 70 C. J. S. 1049, et seq., picketing is defined as the stationing of men “at or near the plant or job.” The basic idea, as reflected by the cases, is that the picketing must be in the immediate vicinity of the place of business of the institution or plant picketed. To the same effect, see 34 Am. Jur. 943.
In the Hanke case, Mr. Justice Frankfurter used this cogent and descriptive language: “Here, as in Hughes v. Superior Court, 339 U. S. 460, ante, 985, 70 S. Ct. 718, we must start with the fact that while picketing has an ingredient of communication it cannot dogmatically be equated with the constitutionally protected freedom of speech. Our decisions reflect recognition that picketing is ‘indeed a hybrid.’ Freund, On Understanding the Supreme Court 18 (1949). See also Jaffe, In Defense of the Supreme Court’s Picketing Doctrine, 41 Mich. L. Rev. 1037 (1943). The effort in the cases has been to strike a balance between the constitutional protection of the element of communication in picketing and ‘the power of the State to set the limits of permissible contest open to industrial combatants.’ Thornhill v. Ala., 310 U. S. 88, 104, 84 L. Ed. 1093, 1103, 60 S. Ct. 736. A State’s judgment on striking such a balance is, of course, subject to limitations of the Fourteenth Amendment. Embracing as such a judgment does, however, a State’s social and economic policies, which in turn depend on knowledge and appraisal of local social and economic factors, such judgment on these matters comes to this Court bearing a weighty title of respect.”
In Hughes v. Superior Court (supra), Mr. Justice Frankfurter emphasized the force of the picket line, as compared to ordinary dissemination of information by publication in these words: “But while picketing is a mode of communication it is inseparably something more and different. Industrial picketing ‘is more than free speech, since it involves patrol of a particular locality and since the very presence of a picket line may induce action of one kind or another, quite irrespective of the nature of the ideas which are being disseminated.’ Mr. Justice Douglas, joined by Black and Murphy, JJ., concurring in Bakery & Pastry D. & H. Local v. Wohl, 315 U. S. 769, 775, 776, 86 L. Ed. 1178, 1183, 1184, 62 S. Ct. 816. Publication in a newspaper, or by distribution of circulars, may convey the same information or make the same charge as do those patrolling a picket line. But the very purpose of a picket line is to exert influences, and it produces consequences, different from other modes of communication. The loyalties and responses evoked and exacted by picket lines are unlike those flowing from appeals by printed word. See Gregory, Labor and the Law 346-348 (rev. ed. 1949); Teller, Picketing and Free Speech, 56 Harv. L. Rev. 180, 200, 202 (1942); Dodd, Picketing and Free Speech: A Dissent, 56 Harv. L. Rev. 513, 517 (1943); Hellerstein, Picketing Legislation and the Courts, 10 N. C. L. Rev. 158, 186, 187, note 135 (1932).
We recognize that in Capital Service v. N. L. R. B., 347 U. S. 501, 98 L. Ed. 887, 74 S. Ct. 699, and in Garner v. Teamster’s Union, 346 U. S. 485, 98 L. Ed. 228, 74 S. Ct. 161, the Supreme Court of the United States held that in some matters the National Labor Relations Act preempted the field in labor matters and that the State courts were not free to act. Yet, in United Const. Workers v. Laburnum, 347 U. S. 656, 98 L. Ed. 1025, 74 S. Ct. 833, the United States Supreme Court recognized that actions in regard to labor matters might still be maintained in the State courts in some instances; and we understand the Laburnum case as recognizing that Hughes v. Superior Court and Henke v. International Brotherhood of Teamsters, still give the State courts the right to determine public policy and to “set the limits of permissible contests open to industrial combatants.” | [
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Wood, J.
The Legislature of 1905 passed a special act providing for the election of a county cotton weigher for Polk and certain other counties. Séctions 1 and 6 of this act were amended in 1907 to read as follows:
“Section 1. That at the -next- general election for State and county officers and every two years thereafter there shall be elected, in the same manner and under the same restrictions as is provided by law for the election of other officials, a county cotton weigher for the counties of Howard, Columbia, Polk, Montgomery, Nevada, White and Clark, who shall hold his office for the term of two years, or until his successor shall have been elected and qualified: provided, the law now in force in Columbia shall remain in full force and effect in Columbia County.
“Section 6. Any cotton weigher elected under the provisions of this act, or any deputy appointed, shall receive as compensation for his services ten cents for each bale of cotton weighed, and five cents for each wagon load of cotton, cotton seed, or other product that he may be called upon to weigh, and he shall make no extra charges for any kind of produce he may be called upon to weigh, said fees to be paid by the purchaser. And it is further, provided that if any person or persons, other than the said cotton weigher or his legally appointed deputy, shall weigh or attempt to weigh any cotton sold or marketed in the town or village where the said cotton weigher or his legally appointed deputy keeps his scales and is acting in his official capacity, such person or persons shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined in any sum not less than ten dollars ($10) nor more than twenty-five dollars ($25), and each bale of cotton so weighed or attempted to be weighed shall constitute a separate offense. ”
The indictment in this case was drawn under section 6, as amended by the act of 1907, and, omitting formal parts, is as follows:
“The grand jury of Polk County, in the name and by the authority of the State of Arkansas, accuse George Petty of the crime of violating the cotton weighing law, committed as follows, towit: The said George Petty, in the county and State aforesaid, on the 10th of November, A. D. 1910, the said George Petty not being then and there duly elected, qualified and acting cotton weigher, or his deputy, for Polk County, Arkansas, and not having then and there the right and authority under the law to weigh cotton sold and marketed in the town of Mena, Polk County, Arkansas, did unlawfully weigh cotton sold and marketed in the town of Mena, Polk County, Arkansas, when one J. H. Sims was then and there the duly elected, qualified and acting cotton weigher for Polk County, Arkansas, and having then and there his scales for the purpose of weighing cotton sold and marketed in said town of Mena, Polk County, Arkansas, the said J. H. Sims, cotton weigher as aforesaid, was then and there acting in his official capacity as such cotton weigher and attempted to weigh cotton sold and marketed in the town of Mena, Polk County, Arkansas, as aforesaid, all of which the said George Petty then and there well knew, against the peace and dignity of the State of Arkansas.”
A demurrer to the indictment was overruled, and exceptions saved. A plea of not guilty being entered by the defendant, the cause proceeded to trial.
It was in evidence and undenied that J. H. Sims was the duly elected, qualified and acting cotton weigher for Polk County, and had scales situated in the town of Mena for the purpose of weighing cotton. It is also undenied that George Petty bought cotton and weighed it in the town of Mena, where official scales were situated.
The appellant testified, in substance, as follows: “I am the defendant. I have no recollection of weighing any cotton myself, but my clerks and employees weighed cotton on my scales. There was no cotton weighed by them on my scales except my own cotton, after I had already bought and branded it. I bought it before it was weighed, and settlement was to be made according to iny scales. I reweighed some that had been weighed by Mr. Sims. I already had scales located at this place long before there was a weigher or even scales established by him.
“Sims had his scales about 120 feet from the platform, and the people had to come with their cotton and wait for Sims to weigh it and reload it on the wagon and carry it to the railroad platform before any of the men who bought cotton would receive it. Now, the reason they would not receive cotton on Sims’ platform was because it cost money to transfer it from Sims’ platform to where the railroad would issue bills of lading for it. Buyers would not pay for it there at Sims’ platform, and the railroad would not issue bills of lading for it out there on a vacant lot. Before the seller could get any money for it after it was weighed by Sims, it had to be moved to where the company would receive it. I do not know what it was worth to reload and move the cotton. However, I always had to pay ten cents to get it moved per bale. Sometimes I paid for cotton as per Sims’ weights, and some of the time by mine. I reweighed some of it for the reason there was complaint at Sims’ weights. When I weighed, I charged ten cents, the same as the law allowed. I did not weigh cotton for the public. I only weighed my own cotton; in other words, I did not weigh for the other buyers. ”
Motions in arrest of judgment and for new trial were filed, overruled and exceptions saved; appeal prayed and perfected.
The indictment was valid. The indictment was framed under section 6 of the act of 1907 and follows substantially the language of that section. It was not necessary for the pleader to allege that the public cotton weigher had prepared a convenient place, easy of access to the public, for the performance of his duties, and that he had provided a pair of scales which had been tested as required by law. These were requirements of the statute for the public weigher in prescribing his duties, but it is not essential to the validity of the indictment to set them out. The indictment specifically alleges that J. H. Sims was the “duly elected, qualified and acting cotton weigher for Polk County, and having then and there his scales for the purpose of weighing cotton sold and marketed in said town of Mena, and that he was then and there acting in his official capacity as such cotton weigher, ” and that the appellant knew these facts. These allegations were sufficient to call for and to have admitted evidence on the part of the State showing that the public weigher was complying with the requirements of the statute so far as he was concerned. It was not necessary for the indictment to allege that the cotton weighed by defendant, for which he was indicted, had been presented to the cotton weigher and a demand made upon him to weigh such cotton. There is no provision in the act that the services of the public weigher should be demanded except for cotton in the seed. The law made it the duty of all persons engaged in the business of buying and selling cotton in the bale to have same weighed by the public weigher; but whether demand was made upon the public weigher by persons buying and selling cotton to weigh the same or not, any one not a public weigher who undertook to weigh cotton in the bale that had not been weighed by the public weigher would be guilty of a violation of the statute.
It is not necessary for an indictment to follow the statute literally. Charging the offense substantially in the language is all that is required. Richardson v. State, 77 Ark 321; State v. Peyton, 93 Ark. 406; Harding v. State, 94 Ark. 65; State v. Pearce, 97 Ark. 6; sections 2228, 2241-2-3, Kirby’s Digest.
The statute under which appellant was indicted is not unconstitutional.
In the case of Wills v. Fort Smith, 70 Ark. 221, an ordinance was under consideration, which provided as follows: “It shall be unlawful for any person hereafter to sell, barter or exchange coal in any quantity in the corporate limits of this city until they have first weighed the same upon the city scales of the city of Fort Smith and paid the weigher the sum of ten cents for the weighing of any load or part of a load, of coal. ”
Judge Riddick, speaking for the court, in passing upon this statute, said: “Now, our statute expressly grants power to cities 'to provide for the measuring or weighing of any wood or other article of sale.’ Under this statute the city had the power to require parties selling coal -in the city to weigh the same on scales provided by the city, and to pay a reasonable fee for the weighing;” citing Taylor v. Pine Bluff, 34 Ark. 603. These cases are in point, and rule the question as to the validity of the act under consideration. The principles announced by this court also in the cases of Woodson v. State, 69 Ark. 521, and McLean v. State, 81 Ark. 304, when applied to the act under consideration, establish its validity.
The uncontradicted evidence showed that appellant was guilty of the offense charged, and therefore the court did not err in directing a verdict against him.' The judgment is affirmed.
Frauenthal, J., dissents. | [
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Frauenthal, J.,
(after stating the facts). It is contended by counsel for defendants that, at the time the written contract was entered into for the adjustment of the alleged shortage, it was agreed that Goodrum should be present during the entire examination made by the accountants of the books of the bank. It is claimed that this portion of the agreement was omitted from the written contract by mistake, which could be rectified by. reformation, or that it did not add to or vary the terms of the written contract. They urge, on the contrary, that this portion of the agreement was either a part of the consideration of the contract or a condition precedent to its consummation, and that, in either event, it could be proved by parol evidence. We do not think, however, that this contention is correct. The written contract was signed and delivered, and was, therefore, fully executed. It is plain, unambiguous and complete in its terms. One of its objects was to provide for an examination of the books of the bank and therefrom to determine the state of the accounts. The written contract sets out how this examination shall be made and by whom. It does not provide that the examination shall be made either by Goodrum or with his assistance. It is- claimed that one of the chief inducements for making the contract was the agreement that Goodrum should be constantly present at such examination; his presence would be unnecessary unless it was also the purpose of such agreement that he would take part in and assist at such examination. We are of the opinion that this would be as distinct a term of the contract as if it had been agreed that, in the event of any disagreement between the two accountants, a third should be called in to make the examination of the books. This would add to the terms of the written contract. It has been uniformly held that where a written contract is plain, unambiguous and complete in its terms, parol evidence is not admissible to add to or vary it. It has been said by this court: “Antecedent propositions, correspondence and prior writings, as well as oral statements and representations, are deemed to be merged into the written contract which concerns the subject-matter of such antecedent negotiations when it is free of ambiguity and complete.” Barry-Wehmiller Machine Co. v. Thompson, 83 Ark. 283. See, also, Cox v. Smith, 99 Ark. 218, and cases there cited. It has also been held by this court that where the written contract is complete in its terms it can not be varied by adding theretoor engrafting thereon any conditión'by parol evidence. Lower v. Hickman, 80 Ark. 505; Johnson v. Hughes, 83 Ark. 105; Collins v. So. Brick Co., 92 Ark. 504. Nor would it be permissible, under the evidence adduced herein, to show by parol testimony this alleged term of the contract upon the ground that it was a condition precedent to the final completion thereof. It is not claimed by any witness that the contract and deed of trust, which were duly signed and delivered, were not fully executed. There is no testimony indicating that this written contract was not to be effective until this alleged condition or term was complied with. If such term of the contract was actually agreed to and was to be a part of the completed contract, then at most it was inadvertently and by mistake omitted from the written instrument; but under the testimony it was not understood or agreed that the written contract should be be deemed finally executed until such condition should be complied with. It follows that this portion of the agreement alleged to have been omitted from the written contract can not be deemed a condition precedent to the completion of the contract. American Sales Book Co. v. Whittaker, 100 Ark. 360.
Nor, under the evidence adduced, can parol testimony of this alleged omitted portion of the contract be considered for the purpose of reforming the written instrument or deeming it a part óf a reformed contract. It is true that this is a suit instituted in a court of chancery, and is to be determined by principles enforceable in such court, and that equity will reform a written contract on the ground of mistake. But, to entitle a party to reform a written instrument upon the ground of mistake, it is essential that the mistake be mutual and common to both parties; in other words, it must be found from the testimony that the instrument as written does not express the contract of either of the parties thereto. It is also necessary to prove such mutual mistake by testimony which is clear and decisive before a court of equity will add to or change by reformation the solemn terms of a written instrument. Varner v. Turner, 83 Ark. 131; McGuigan v. Gaines, 71 Ark. 614; Goerke v. Rodgers, 75 Ark. 72; Cherry v. Brizzolara, 89 Ark.309. The testimony in the case at bar as to whether or not it was agreed, as a part of said contract, that Goodrum, the cashier, should be present at the examination to be made by the accountants is conflicting. We do not deem it necessary to set this testimony out in detail. Considering all of this testimony, we can not say that it appears beyond reasonable controversy that such agreement was made and entered into and understood to be a part of the contract, and that, by mistake, it was omitted therefrom. It follows, therefore, that the contract as written must be considered as containing all terms of the agreement which were then made, and we do not think that plaintiff violated any provision of the contract by objecting to the presence of Goodrum constantly during the examination of the books by the accountants. The contract was binding and enforceable, and could not thereafter be defeated by any act of Good- rum or the accountant whom he had chosen attempting to avoid or annul its binding force.
It is earnestly insisted by counsel for defendants that the contract entered into and the deed of trust executed are illegal and void because, as a part of the consideration thereof, either express or implied, it was agreed that Goodrum should be protected or shielded from criminal prosecution for any embezzlement by him of the bank’s funds. Especial insistence is made upon this defense, because the property conveyed by the deed of trust was principally that of the wife, and it is strongly urged that the chief, if not sole, motive inducing her to execute the contract and deed of trust was to secure immunity for her husband from criminal prosecution. The determination of this question has given us much concern. This question is one of fact. The principles of law involved in the determination thereof, are, we think, well settled. Any contract, the consideration of which, in whole or in part, is to conceal a crime or to stifle a prosecution therefor, is necessarily repugnant to public policy, and, for that reason, is illegal and void. Such an agreement constitutes the compounding of a felony, which is made a crime by the statute of this State, which provides:
“Every person who shall have a knowledge of the actual commission of any offense punishable with death, or of any felony, who shall take any money or any gratuity or receive any promise, engagement or undertaking therefor, upon agreement or understanding, express or implied, to compound or conceal such crime, or to abstain from any prosecution therefor, or withhold any evidence thereof, shall upon conviction be fined in any sum not less than three hundred dollars, and be imprisoned not less than three months.” Kirby’s Digest, § 1599.
Any contract, therefore, the consideration of which i's to conceal or withhold evidence of a crime or to abstain from the prosecution therefor, is void, although it may represent a just debt and security for its payment. Rogers v. Blythe, 51 Ark. 519; Kirkland v. Benjamin, 67 Ark. 480; Beal & Doyle Dry Goods Co. v. Barton, 80 Ark. 326; Johnson v. Graham Bros., 98 Ark. 274. But it is equally well settled that it is perfectly lawful for the parties to compromise and provide for the payment of the civil liability which arises from the commission of an offense. The commission of crime may result, and usually does, in a private as well as a public wrong, and an obligation given in settlement of the civil liability arising from such wrong is not invalid because the offender is also liable for criminal prosecution. If the purpose of the agreement is to obtain security for the loss suffered, and not to suppress a criminal prosecution, then the contract therefor is perfectly valid. The rule of law is thus stated in 2 Chitty on Contracts, p. 991: “In all cases of offenses which involve damages to an injured party for which he may maintain an action, it is competent for him, notwithstanding they are also of a public nature, to compromise or settle his private damage any way he may think fit, but an agreement for suppressing evidence or for stifling or compounding a' criminal prosecution for a felony is void.” See also Breathwit v. Rogers, 32 Ark. 758; Martin v. Tucker, 35 Ark. 279; Rogers v. Blythe, 51 Ark. 519. Thus in the case of Provident Association Society v. Edmunds, 95 Tenn., p. 53, it was held that a note given in settlement of a deficit of an agent is not invalid because the agent was liable to criminal prosecution for his defalcation, in the absence of an agreement not to prosecute. In the case of School District v. Collins, (Dak.) 41 N. W. 466, the defense was that the note was given to compound a felony, and the court said: “In defenses of this kind, where it is sought to invalidate a written contract by parol evidence, it should be made to clearly appear that the arrangement was in contravention of public policy. Vague and indefinite statements are not sufficient. The understanding or agreement relied on must be positive and certain, entered into and relied on by both parties.” In the case of Barrett v. Webber, 125 N. Y. 18, it was held that a mortgage given by a married woman to secure the payment of goods stolen by her husband is not void as given to compound a felony, in the absence of a promise on the part of the mortgagees to forbear prosecution for the crime or to suppress evidence tending to prove it. In the case of Cass County Bank v. Bricker, 34 Neb. 516, the court says: “In order to establish the offense of compounding a felony, it must appear that there was an agreement not to prosecute the case or to suppress evidence tending to prove it. The owner of the goods stolen has a right to receive compensation therefor.” And in the case of Swan v. Swan, 21 Fed. 299, Judge Caldwell says: “No court ought to refuse its aid to enforce a contract on doubtful and uncertain grounds. The burden is on the defendant to show that its enforcement would be in violation of the settled public policy of the State or injurious to the morals of its people, and vague surmises are not to be indulged in.” In a note to the case of Schrim v. Wieman, 7 A. & E. Ann. Cas. 1008, the rule is thus formulated and appears to be sustained by the weight of authority: “An agreement by which the owner of stolen or embezzled property accepts securities representing the value of his property, or part thereof, and given by way of compensation for the debt or loss, or for securing the same, is not invalid as compounding a felony where the agreement does not include an offer of immunity from criminal prosecution to the perpetrator of the crime.” In the ease at bar, the contract entered into was put in writing, stating fully all of its terms. Two personal friends of Goodrum represented him at the conference with the bank officials when this contract was entered into and drafted. One of them was the sheriff of the county, who, before going to the conference, stated to Goodrum that if he had taken the money of the bank, he should give up his property in order to make restitution, to which Goodrum acceded. At that time no mention was made of any immunity to Goodrum from prosecution. The terms of the contract were discussed at the conference with the bank officials and there agreed upon, and the attorney of the bank and parties representing Goodrum then proceeded to the attorney’s office to draft the contract. At the conference, no mention was- made of any prosecution or of any promise of immunity from prosecution. The matter of prosecution was not then spoken of at all. After the contract was drafted, Mr. Gates then, for the first time, mentioned the matter of immunity from prosecution, and endeavored to obtain an agreement to that effect if the matters were fixed up, but, instead of acceding to that request, the president of the bank refused to make such an agreement. It was understood by all parties that the president of the bank owned the principal part of its stock, and that its actions would be controlled entirely by him in the matter. It was understood by all present that no other official of the bank could make any agreement or arrangement by which the bank would be bound.
Mr. Gates, one of the personal friends of Goodrum, and who represented him at this conference, was asked:
“Q. Was there in that meeting, in the presence of all the parties there present, any agreement with either Mr. Eagle or the directors of that bank that they would not prosecute Mr. Goodrum provided he would sign a contract or deed his property?
“A. Do you mean in the rear of his bank?
"Q. Yes.
“A. There was not. I didn’t hear it.
“Q. Was there anything mentioned in regard to it?
“A. There was not that I heard there.”
He testified further that after the contract had been drafted in Mr. Gray’s office, he then asked Mr. Eagle, or the bank directors, if they would agree not to prosecute Mr. Goodrum if he and his wife would sign the agreement, and that Mr. Eagle replied that he could not make such an agreement, and that if he was summoned before the grand jury he would tell the whole truth relative to the matter. He was further asked whether Mr. Eagle agreed at any time not to prosecute Mr. Goodrum, or to refrain or abstain from telling the whole truth in reference to the transaction if he was summoned before the grand jury, and he answered that he did not. He also stated that it was his understanding, and, as we think, his opinion, that it would not be the disposition of the bank to prosecute, but we can not say from 'his testimony that there was any agreement to that effect on the part of the bank. Mr. Fletcher, the other friend of Mr. Goodrum, testified relative to the entire matters of the agreement constituting the contract as follows: "The essence of that contract is this and nothing else: for consideration of Goodrum being allowed to take those books, with an accountant and their accountant, and all of their board of directors, if they so desire, show to the board of directors that he had not stolen $18,800, but, if he was not able to show that, confiscate his property by deed of trust to W. P. Fletcher, to be turned over to the bank to cover whatever shortage there may be. That is the essence of the contract.” He further testified: “I was there as a citizen and officer, in a way as a citizen more, to try and bring about between these two neighbors, if possible, an -understanding over a business misunderstanding, or to bring together, if this man was criminal, the payment to this bank of what was due them. If he was not, let him have an opportunity to show them that he was not. Now, that is all there is to it.” It is true that Mr. Swaim, one of the directors, also testified that he said that he was willing that there should be no prosecution, but, as before stated, it was understood by all parties that Mr. Eagle, and not Mr. Swaim, would represent the bank in its actions. Mr. Eagle testified that when he was asked if the bank would agree not to prosecute Goodrum he said: “Not on your tintype. I would’nt sign an agreement like that if I never got a dollar of the money back. I said: Tf you will turn this property back if there is a shortage, we won’t lie around the courthouse and try to prosecute him; but if the grand jury calls on me and asks me to explain these books and asks me if the shortage occurred upon the expert’s report, I will tell them every thing I know about it.’ ” We do not think that this statement of Mr. Eagle in effect that he would not go before the grand jury until summoned to appear was an implied agreement either to withhold testimony, conceal the crime or to stifle a prosecution under the facts and circumstances of this case. The charges made against Goodrum that he was short in his accounts with the hank, and criminally so, were not only known to all the directors and persons present at the conference, but they had been published to the world, and the knowledge thereof was rife amongst the people of that community, if not also amongst the people of the county. This is not a case where the charges were only known by a few persons, and upon their failure to divulge them they would not come to the notice or knowledge of the public or to those to whom the prosecution of crime is entrusted by the law. The charges were already within the knowledge of the public, and there could be no concealment thereof if any member of the public started a prosecution therefor. At the most, Eagle only stated that he would not instigate a prosecution. He also said that he not only refused to agree not to prosecute but, if asked by any public official, he would tell everything relative to the matter; instead of going of his own motion before the grand jury, he would await a summons that might come to him from the public authorities who, the testimony shows, had full knowledge of these charges. Under these circumstances-, we do not think that there was any agreement, either express or implied, to conceal a crime or to withhold any evidence thereof. Because he would remain passive relative to matters of which the public authorities had full knowledge, it can not be said that he thereby-agreed to shield Goodrum from any public prosecution. Davis v. State, 95 Ark. 555. The chancellor found that the plaintiff did not agree, either expressly or by implication, to shield Good-rum from proseccution or to withhold any evidence which it had showing the commission of crime by him. We have examined all the testimony, and we can not say that his finding in this regard is clearly against the preponderance of the evidence. Under such circumstances, his finding should not be disturbed. It is true that Mr. Gates told Mrs. Goodrum that there would be no prosecution of her husband if the matter was arranged; but there is no testimony in the case that he had any authority to make any such representation to her from the plaintiff or any one connected with it, and the plaintiff, as mortgagee, can not, therefore, be bound by any representation that he made under these circumstances without its knowledge or direction. Moyer v. Dodson, 212 Pa. St. 344.
It is also claimed in this connection that Mrs. Goodrum executed the contract and deed of trust through duress by reason of a dread of prosecution of her husband; but we do not find from the testimony that any threat of prosecution of her husband was ever made to her by any one representing the plaintiff, or that any representative of the plaintiff induced her to execute the contract and deed of trust by any threat of such prosecution. It can not be said, therefore, that these instruments were executed by her through duress. Compton v. Bunker Hill Bank, 96 Ill. 301.
It is further urged that certain of the lands conveyed by the deed of trust were the separate property of the wife, and therefore should not be sold for an executory contract to pay the-debt of the husband. But a married woman, under the laws of this State, may convey by mortgage her property in order to secure the debt of her husband, and the mortgage thus executed, it has been uniformly held, will be enforced. Collins v. Wassell, 34 Ark. 17; Scott v. Ward, 35 Ark. 480; Petty v. Grisard, 45 Ark. 117; Goldsmith v. Lewine, 70 Ark. 516.
It is urged that the testimony does not show that Good-rum was criminally short in his accounts with the bank, and that on this account recovery should not be had. We understand from the contract that if Goodrum himself had wrongfully taken any of the funds of the bank and converted same to his own use, then he would be criminally short in his accounts, within the meaning of this contract, and we think the contract was so understood by Goodrum aiid all the parties. He would not be liable for the payment of any moneys arising from errors in keeping the accounts or for any funds taken by any other person, but he would be liable under this contract for such moneys as he wrongfully took himself and converted. Under the law, he was civilly liable to' the bank for such conversion, and an agreement to pay such liability was perfectly valid. We do not deem it necessary to enter into any discussion of the testimony relative to this shortage. It was fully investigated by the master and by the chancellor, and we have also endeavored carefully to examine it. The testimony is voluminous, and consists, amongst other things, of an examination and inspection of the books, papers and accounts of the bank, of alleged false entries and of altered figures. The master, in his report, states in detail the matters relating to these accounts and the evidence showing that Goodrum had wilfully made false entries therein and changed the figures thereof in many instances in order to cover moneys which he had wrongfully taken. The chancellor also examined Goodrum in open court in order to more fully understand these matters and to see if any explanation could be made thereof- consistent with his claim, and it appears to us that- the chancellor proceeded with a great deal of care. After this investigation, he confirmed the report of the master. The findings made by the master and the chancellor are not only persuasive upon us, but, after as careful an examination as we are able to make of this testimony, we are of the opinion that they are not contrary to the weight of the evidence. These findings must therefore stand.
Objection is made to the report of the master upon the ground that he was not sworn before beginning the performance of his duties. By section 6327 of Kirby’s Digest it is provided that, before entering upon his duties, the master shall be sworn in open court to faithfully and impartially perform said duties, and it is provided further that an entry of such oath should be made upon the record. It appears that, through inadvertence, the master did not take the oath thus required before beginning his duties; but the defendant and his counsel appeared before the master and during the extended time in which the testimony was taken by him no, objection was made to his proceeding on this account. It is provided by the statute that the oath should be taken in open court, and it will be presumed that all parties were present in court when any step was taken in the progress of this case. The defendant is, therefore, presumed to have known whether or not the master was sworn and could have definitely learned this by an inspection of the record where, by statute, it is provided such oath should be noted. By failing to raise any objection to the proceedings of the master at the time they were had, we think that the defendant waived any right to object because the master was not sworn. 17 Enc. Pl. & Pr. 1016; 24 Cyc. 817; Newcomb v. Wood, 97 U. S. 581; Nason v. Luddington, 8 Daly (N. Y.) 149; Garritty v. Hamburger, 136 Ill. 499. After the master had made and filed his report, counsel for defendant, for the first time, raised objection thereto on the ground that he was not sworn. Thereupon, by direction of the chancellor, the master was duly sworn, and he then stated that all the proceedings had by him and all the findings made by him in his report were correct. By stipulation, duly signed by counsel for defendant, it was further agreed that all testimony taken on the part of defendant before the master should be read in evidence with the same and like effect as if taken before the master after he had taken the oath as required by law. Thereupon the chancellor considered the testimony returned and the report made by the master, and passed thereon. We are of the opinion that, even if it should be considered that the failure of the master to take the oath required by law was not a mere irregularity, his proceedings and report were in effect made after such oath had been duly taken by him, and that the law in this particular was in effect duly complied with.
Finally, it is urged that the court erred in not transferring this cause to the law court and thus granting to the defendant the right to have the issues involved in this case tried by jury. It appears that, after the master had made and filed his final report, and after the trial of the case had begun and progressed to the point where the chancellor had partially, if not finally, passed upon the master’s report, counsel for the defendant requested that the cause be transferred to the law court, in order that the issues might be tried by a jury. At this time all the testimony in the case had been taken, both parties had announced ready for trial before the chancellor, and the trial was proceeded with. Up to that time, the defendant had not made any request for a trial of the issues by a jury. If he was entitled to a trial by jury of the issues involved herein, we think that, in failing to ask for a jury or to request that the cause be transferred to a law court before the trial was actually begun,he waived anyrighttoaskforajury to try the issues. Love v. Bryson, 57 Ark. 590; Gerstle v. Vandergriff, 72 Ark. 261. But the matters involved in this suit were within the jurisdiction of a court of equity. Whether or not an issue involved in a cause over the subject-matter of which a court of chancery has jurisdiction shall be submitted to a jury is within the sound discretion of the chancellor, and when so submitted its finding would only be persuasive and not conclusive. Hinkle v. Hinkle, 55 Ark. 583. The defendant did not have an absolute right to a trial by a jury of an issue involved in a subject-matter over which the chancery court had jurisdiction, and this is especially true where extended accounts, difficult of determination, are involved. State v. Churchill, 48 Ark. 226; Williams v. Citizens, 40 Ark. 290. Upon an examination of the entire record, we can not say that- the chancellor committed any error calling for a reversal of the decree which he entered in this case. His decree must accordingly be affirmed, and it is so ordered.
Wood and Hart, JJ., dissent. | [
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McCulloch, C. J.
The Pine Bluff Corporation (a private corporation) is engaged in the business of furnishing water, gas and electricity to the people of the city of Pine Bluff, and John Byrd was employed as a workman in the gas and water department. He was killed by an electric shock on account of a wire, of which he had hold and which he was removing from a building, coming in contact with an uninsulated electric light wire, and this is an action against the company to recover damages on account of his death. The trial court instructed a verdict in favor of the defendant, and this appeal raises solely the question whether or not the evidence was sufficient to warrant the submission of the case to the jury.
Byrd was sent by his employer to remove from a store building, then occupied by Stern & Levy, the old gas fixtures and apparatus, the use of which had been discontinued by the occupants. He had with him a helper, who was working under him, and they both were advised of the danger of allowing the wire to come in contact with an electric light wire. After taking down the fixtures inside of the building, it became necessary to remove the small copper wire tubing through which the gas had been supplied. This wire ran along the ceiling of the building between two electric light wires, and came out of the building at the top of a window, and thence to the ground through a three-quarter inch iron pipe. After cutting loose his wire on the inside, Byrd was standing on a box on the outside of the window, drawing the wire through a hole in the window casing, when the end of the wire on the inside of the building fell across an uninsulated electric light wire, and the shock resulted. Byrd cried out in his pain, and his companion came to him and removed the wire, but too late to save his life. The uninsulated part of the electric wire, with which the gas wire came in contact, covered a space of about two inches, and was about a foot from the meter, which was up on the inside of the wall near the top of the window through which the gas wire came, the uninsulated space being between the meter and the ceiling.
It does not appear from the testimony who put in the electric wiring in the building, and there is no evidence that the defendant corporation had anything to do with it. Mr. Levy, the only witness who testified on that subject, stated that the house was wired for electricity before they moved into the building about three years before the accident, and that the electricity had been supplied by another company in Pine Bluff engaged in that business, but the service had been discontinued after the installation of the gas in the building. Later they decided to use electric lights instead of gas, and employed the defendant to furnish electricity and remove the gas fixtures. Some time before this — the exact time is not disclosed — the defendant attached its wires to the wires on the outside of the building and proceeded to furnish electric current. There is no evidence that defendant had anything to do with the installation ór maintenance of the wires and appliances on the inside of the building.
The burden was upon the plaintiff to show by competent testimony that the death of Byrd was caused by some negligent act of his employer, the Pine Bluff Corporation. This we think plaintiff has entirely failed to do. The defendant was not responsible for the defective condition of the wires on the inside of the building. It had the right by contract with the owner to furnish the current of electricity and to allow the owner to assume the responsibility for the condition of the appliances in the building. It was not bound to maintain a system of inspection to see that the wires were kept properly insulated. 1 Joyce on Electric Law, § 445-C; National Fire Ins. Co. v. Denver Consolidated Electric Co., 16 Col. App. 86; 63 Pac. 949.
We are aware that there are authorities which tend to sustain the contrary view, but we believe it to be unjust, as well as unsound upon principle, to say that a lighting company is compelled to maintain in' good repair appliances on the inside of a private building which the owner has a right to install for himself or by some one else of his own selection, and who does, in fact, install and maintain the same.
An obligation on the part of the lighting company to inspect and maintain the wires and other appliances on the inside of the building necessarily excludes the right of the owner to assume that responsibility himself. Of course, it would be different where the company was employed to put in the appliances, and maintain them, for then there would be a continuing duty to exercise proper care to see that they were kept in safe condition. We think it is sound to hold that the owner has the right to have his own building wired, and to contract with the lighting company merely to furnish the electricity, and under those circumstances the company is not responsible for the condition of the wires on the inside of the building. This disposes of any contention of negligence on the part of the-defendant in failing to keep the wires insulated.
But it is insisted that there was a special duty resting upon the master to make the working place of the servant reasonably safe, and that this involved the duty to inspect the wires for the purpose of ascertaining whether it was reasonably safe for the servant to work there. It is not correct to say that there is always a duty on the part of the master to make the working place safe. Sometimes that devolves upon the servant himself. Southern Anthracite Coal Co. v. Bowen, 93 Ark. 140. And so it is in this case. Byrd was sent there to remove the gas wires and other apparatus from the building. His employer was guilty of no negligence in causing the alleged dangerous condition. It was not guilty of negligence in failing to warn him of the danger of coming in contact with electric light wires, for the plaintiff’s evidence shows affirmatively that he was properly warned on that subject, and that he, in turn, warned his helper to observe the same precaution. He knew, in other words, that it was dangerous for the wire which he was removing to be allowed to come in contact with a live electric wire, and it was a part of his duty to see that there should be no such contact. Under the circumstances it was, as before stated, a part of his duty to take the necessary precautions for his own safety, and no obligation rested upon the master to inspect the place in advance and make the necessary repairs, so that he could remove the gas apparatus in safety.
The proof in this case fails entirely to show any negligence on the part of the defendant or a failure in the discharge of any duty which it owed to its injured servant. Under the circumstances, the servant assumed the risk of any danger attending the work which he was sent there to perform. The instruction of the court was therefore correct, and the judgment is affirmed. | [
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Frauenthal, J.
This is an appeal from a judgment convicting the defendant of the crime of grand larceny based upon an indictment charging him with stealing a cow, the property of one Ella Pool. He seeks to reverse the judgment upon the grounds, (1) that there is not sufficient legal testimony to sustain the verdict of guilty returned by the jury, and (2) that the court erred in giving certain instructions to the jury. The testimony on behalf of the prosecution tended to prove the following facts: Ella Pool was the owner of the cow alleged to have been stolen, and resided about one-half mile from the city of Clarendon. The cow was a milk cow, and about three years old. She had owned the cow for some time, and milked her each morning and evening. After milking her in the morning, she would turn the cow out, and each evening the cow would return to her home, where she was again milked and remained during the night. The cow had a young calf, which was kept at the home of Ella Pool during the time that the cow was out. In order that the cow should not stray “into the city limits, the owner drove her each day about two miles away from the city to a point known as Martin branch, where she roamed and fed. This place was a creek bottom leading to the bottom lands of White River, and was covered with woods. Here the cow ranged and fed during the day, returning each evening along the public highway to Ella Pool’s home. On the afternoon of April 4, the defendant and one Will Jordan drove this cow from from a place near Martin branch, where she was feeding, and sold her to a butcher for $15. We are of the opinion that there was sufficient evidence to warrant the jury in finding that the defendant was guilty of stealing this cow if it was a subject of larceny. The uncontroverted evidence shows that the cow was over the age of twelve months, and was unmarked and unbranded. The court, in the instructions which it gave to the jury, defined the crime of larceny and also instructed them that “owners of cattle, hogs and sheep, which run at large in the range or woods, shall designate such animals, if over twelve months old, by brands or earmarks; otherwise, if taken or converted to the use of any other person, such person shall not be deemed guilty of larceny, but the owner may have his action for the value of such unmarked or unbranded animal.” The court further said: “This is a good and valid statute, but it was not passed for the purpose of protecting any one in stealing cattle which are not on the range or where one knows the owner of them.” Objection being made to this last statement, the court further said: If you believe from the testimony that the cow was running on the range or in the woods as a range cow, unmarked and over the age of twelve months, then the defendant would not be guilty of larceny; but if you find she was coming up regularly and just going out to get something to eat, and defendant knew the owner of the cow and stole her, he would be guilty. The question is with you as to whether or not the cow was running on the range or in the woods, within the meaning of this law.”
By section 1898 of Kirby’s Digest it is provided: “Owners of cattle, hogs or sheep which run at large in the range or woods shall designate such animals, if over twelve months old, by brands or earmarks; otherwise, if taken or converted to the use of any other person, such person shall not be deemed guilty of larceny, but the owner may have his action for the value of such unmarked or unbranded animals.” This statute was enacted in 1834, and amended in 1868, and has not been repealed by any subsequent legislation. Thompson v. State, 60 Ark. 59. It has been held that by virtue of this statute the animals therein designated running at large in the range or woods and not branded or marked as therein required are not the subject of larceny. Matthews v. State, 24 Ark. 484; Perry v. State, 37 Ark. 54. According to the undisputed testimony, as above stated, this cow was more than twelve months old, and it was neither marked nor branded. The question, therefore, involved in this case for determination is whether or not, under the testimony adduced upon the trial of this case, the cow was running at large in the range or woods within the meaning of the above statute. It is commonly understood that a range is a sparsely populated and uninclosed tract of land over which stock and cattle are permitted to roam and feed without restraint; and likewise the expression “in the woods,” as used in this statute, refers to uninclosed and unpopulated woodland. But, before it can be held that the animals mentioned in this statute are not the subject of larceny, it is necessary, not only to show that they were running in the range or in the woods, but it is also essential to prove that they were running at large. Stock running at large are animals which roam and feed at will, and which are not under the control or direction of any one. Where such animals, though left to their free movements, are still subject to the control and restraint of their owner, they are not running at large within the meaning of this statute. This restraint exercised by the owner over such stock or cattle need not be entirely of a physical nature; that is to say, the animal need not be confined in an inclosure or held by a halter. The restraint may depend upon the habits, training and instincts of the animal in the particular case; and the sufficiency of such restraint will be determined from the effect of such habits, training and domestication of the animal and their controlling and restraining influence over it. Elliott v. Kitchens, (Ala.) 33 L. R. A. 364; Keeney v. O. B. & N. Co., 19 Ore. 291. If the movements of the stock or cattle are controlled by the owner who is present, or, if such owner is absent, then by the habits and training of such animal, so that, although such animal remains for a time in the woods or on the range, yet by reason of such habits and training it returns each day to the home of its owner, then it can not be said that its movements are so urestrained that the animal is running at large within the meaning of this statute. Bertwhistle v. Goodrich, 53 Mich. 457; Beeson v. Tice, 17 Ind. App. 78. There are ordinances enacted by cities prohibiting stock and cattle from running at large within the limits of such municipalities; the object of such enactments is to prevent the injury and depredations which may be committed by such animals. Such animals would, therefore, be running at large if roaming at will within the city limits and not under the immediate control or restraint of some one. McKenzie v. Newton, 89 Ark. 564. But the manifest purpose of the statute in question is to declare those animals only not the subject of larceny which, being uncontrolled or unrestrained, roam at will on the range or in the woods for a long period, that is to say, for weeks or months, so that it would not or could not be known who was the owner thereof; but where the animal is domestic in its nature, .like a milch cow, and it is permitted to go from the home of the owner only for a short distance and for a short period of time, as for a day, in order to roam and feed upon the commons or on the range or in the woods, and, by reason" of its habits and training as in the case of a milch cow, returns each day to the home of its owner, then such animal does not run at large within the meaning of this statute. Such animal is still the subject of larceny, although over twelve months old and unmarked and unbranded.'
As was said in the case of Holy Trinity Church v. United States, 143 U. S. 457: “It is a familiar rale that a thing may be within the letter of the statute, and yet not within the statute, because not within its spirit nor within the intention of its makers. This has been often asserted, and the reports are full of cases illustrating its application. This is not the substitution of the will of the judge for that of the Legislature, for frequently words of general meaning are used in a statute — words broad enough to include an act in question, and yet a consideration of the whole legislation or of the circumstances surrounding its enactment, or of the absurd results which follow from giving such broad meaning to the words, makes it unreasonable to believe that the Legislature intended to include the particular act.”
Under the uncontroverted testimony adduced in this case, we are of the opinion that the cow alleged to have been stolen was not running at large, and was the subject of larceny. Therefore, the court did not err in the above instructions given by it to the jury. There being sufficient evidence to warrant the jury in finding that the defendant was guilty of the larceny of this cow, the judgment is affirmed. | [
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McCulloch, C. J.
The plaintiff, E. H. Dickson, and his wife, Arizona Dickson, the defendant in this case, were married in the year 1872, and lived together in Benton County, Arkansas, until December, 1905, when the defendant instituted suit in the chancery court for divorce. The pleadings were made up and proof taken, and the cause was submitted to the chancellor and taken under advisement until the next term of court. In the meantime Mr. Floyd, one of the attorneys for the plaintiff, E. H. Dickson, endeavored to bring about a reconciliation of the parties, and succeeded in his effort. The plaintiff, besides other property, owned two lots in the city of Bentonville, and he moved a house thereon from another piece of property, improved it at a cost of several thousand dollars, and conveyed it to his wife by warranty deed, the consideration expressed in the deed being “the love and affection subsisting .between him and his wife. Arizona Dickson, and the sum- of $1.00 paid. ” Thereupon she dismissed her action for divorce, and returned to her husband, and they resided together in the house just referred to. After having lived together for awhile, they again separated, and the plaintiff instituted this suit for divorce, on the grounds of desertion and cruel treatment; and he also asked that the deed to his wife be cancelled and the property conveyed thereby be restored to him. He alleged in his complaint that the deed was executed in order to bring about a reconciliation between him and his wife, and on condition that they continue to live together as husband and wife and occupy the property jointly as a home. He alleged further in the complaint that he did not intend to convey her the absolute title, but merely a life estate. Mrs. Dickson had, prior to this time, employed one Jesse Crabaugh to construct a sidewalk around the property under the requirement of the city ordiance, and in consideration therefor had agreed to convey to Crabaugh a strip seventy-five feet wide off the west side of said lots. The plaintiff alleged in his complaint that Mrs. Dickson had no authority to enter into such contract or make such conveyance, and that he had notified Crabaugh of his objections thereto, and he sought also to enjoin his wife from executing a deed pursuant to her agreement with Crabaugh, who was joined as defendant in the action.
The defendant, Mrs. Dickson, filed her answer and a cross complaint, in which she denied all the allegations of her husband’s -complaint with reference to misconduct on her part, and she asked for a divorce on the alleged ground that her husband had been guilty of such indignities as rendered her condition intolerable. She denied that said deed was executed by her husband upon any condition whatever or upon any consideration except that named in the deed itself'.
Crabaugh answered, and' asked that, in the event his contract with Mrs. Dickson for the conveyance of the portion' of the lots be set aside, a lien in his favor be declared on the property for'the price of the construction of the sidewalk.
The case was heard by the chancellor upon the depositions of witnesses, including the plaintiff and defendant themselves, and oral testimony, and a decree was rendered denying the plaintiff’s prayer for divorce but granting a divorce on cross complaint of the defendant. The court found that, the deed from the plaintiff to defendant having been executed upon the consideration of “love and affection subsisting between him and his wife, Arizona Dickson, and the sum of $1.00,” the consideration failed because “no love and affection existed between the plaintiff and defendant at the time of the execution of said deed, and that the attempted reconciliation failed.” The court cancelled the deed and restored the property to plaintiff, but, in accordance with the terms of the statute, decreed to the wife one-third of the personal property of her husband absolutely and one-third of all the lands of which he was seized and possessed, and appointed a commissioner to set apart the same to her. The court further found that the conveyance to Crabaugh of the seventy-five foot strip off the west end of said lots was an exorbitant consideration for the construction of the sidewalk, and should not be enforced, but declared a lien in favor of Crabaugh for the fair price for the construction of the sidewalk, which the court found to be the sum of $168.70, which included interest.
The plaintiff and defendant each appealed to this court. Crabaugh did not appeal.
After a careful consideration of the record, we are of the opinion that the evidence is sufficient to sustain the finding of the chancellor as to the alleged grounds of divorce set forth by the respective parties, and sufficient to sustain the decree denying the divorce upon the allegations of the complaint and granting it on the allegations of the cross complaint. The decree in that respect is not against the preponderance of the • testimony.
Both parties, in their' respective testimony, as well as in their pleadings, make charges against, each other of ill-treatment, but the plaintiffs charges against his wife are entirely uncorroborated, and the charges made against him by his wife were sustained by her own testimony, which finds distinct corroboration in the testimony of their married daughter. It is shown that the plaintiff treated his wife with studied neglect, and frequently quarreled with her, and offered her gross insults. He called her a liar and a thief, and frequently reproached her on account of the alleged standing and conduct of her family, which he said brought disgrace upon his children. . He admitted some of these things on the witness stand, and attempted to justify them by saying that his statements were true. Their daughter, Mrs. Patten, testified that she was present on occasions, and heard her father speak to her mother in terms of gross insult, calling her a liar and thief, and also heard him accuse her of prowling around at night. She said that her father frequently used insulting language towards her mother, and that such conduct on his part was almost an everyday occurrence. Upon that state of the proof, we are of the opinion that the finding of the chancellor is sustained by the preponderance of the evidence, and the decree in this respect should be affirmed.
The decree with respect to the cancellation of the deed can not, however, be sustained. The plaintiff claims in his testimony that he executed the deed to his wife on condition that she would come back and live with him as they had lived before. And, to use his exact language, he stated that “the conditions were that she was to return home and live a more faithful and agreeable wife than she had theretofore.” He does not undertake to state any other condition upon which the deed was executed, but he does say that it was contemplated that the property was to be a home for both of them, and that he had no intention of conveying her the absolute title. Mr. Floyd, who was plaintiff’s attorney and prepared the deed, but who withdrew from the case before the trial below, was called as a witness and testified, without objection from either party. He states that he brought about the reconciliation be tween Mr. Dickson and Ms wife, and that, after conferring with Mrs. Dickson’s attorney, it was agreed that plaintiff would convey the property to his wife. He does not state any condition in the execution of the conveyance, though he does say that he advised Mr. Dickson that, in the event plaintiff became entitled to a divorce, the property would be restored to him. The defendant and her daughter, Mrs. Patten, both testified that there was no agreement with reference to the conveyance' except that, “if she would live with him, he would treat her right and make her the deed.” Their testimony tends to establish the fact that she did go back to her husband, and was not thereafter at fault in her conduct toward him. The chancellor’s finding upon the question of divorce necessarily implies a finding that the plaintiff was at fault in his conduct toward defendant, and that the latter was not at fault. It necessarily follows that, under this state of the case, the plaintiff was not entitled to a restoration of the property. Under those circumstances the property was not “obtained from or through the other during the marriage and in consideration and by reason, thereof,” within the meaning of the statute. McNutt v. McNutt, 78 Ark. 348. The ground upon which the chancellor decreed the restoration of the property, namely, that there was a failure of consideration, because no affection actually existed between the parties at the time of the execution of the deed, is untenable. This is settled by the case of McNutt v. McNutt, supra, and the case of Kinzey v. Kinzey, 115 Mo. 496, which we cited with approval in the McNutt case. In that case it was said: “No property was obtained from the plaintiff by imposition or deceit. ■ He was simply mistaken in the moral worth and virtue of one of the objects of his bounty. From the consequences of such a mistake of judgment a court of equity can not relieve him. ”
In this case, as in the McNutt case, there is no claim of imposition or deceit having been practiced. The proof does not sustain the contention that the deed was executed upon any kind of conditions, and, as before stated, a court of equity will not set aside a conveyance on account of a mistake as to the extent of affection which existed between the parties at the time of the conveyance.
That part of the decree which declares a lien on the lots, instead of enforcing the agreement to convey seventy-five feet off the west end, operated for the benefit of the defendant, and Crabaugh did not appeal. The defendant does not now complain of that part of the decree, and the same should be affirmed.
The decree, in so far as it cancels the deed from plaintiff to defendant and restores the title to plaintiff, is reversed, and the cause is remanded with directions to enter a decree dismissing the complaint with reference thereto. | [
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Kirby, J.,
(after stating the facts). It is contended that the court erred in giving said instruction numbered 18 at the time and in the manner it did, without calling attention to the other instructions as part of the law of the case, and that the instruction itself is not the law.
It was within the province of the presiding judge to recall the jury and give them further instructions when, in the exercise of a proper discretion, he regarded it necessary to do so in the furtherance of justice, and it is not always necessary in such cases- that he should repeat the whole charge, but this instruction was given to the jury after they had returned once and asked to be instructed again as to the extent of drunkenness that would affect the degree of the crime and all the instructions of the case had been reread to them, and without any request upon their part for further instruction, and also without any caution or admonition from the judge that they should regard it with all the other instructions given as the law of the case. Such practice is not to be commended, although in this instance it may be that the cause would not have been reversed because of it if the instruction complained of had been a correct declaration of law. Lee v. State, 73 Ark. 148.
The law relating to the extent of drunkenness or the effect necessary to be produced by it upon the mind of the defendant, to reduce the grade of the offense, was properly declared in instruction No. 14 given by the court. Casat v. State, 40 Ar.k 511; Chrisman v. State, 54 Ark. 284; Chowning v. State, 91 Ark. 503; Wood v. State, 34 Ark. 341.
Defendant’s requested instruction No. 1 applied the law as stated in No. 14 to the case as made, and in connection with it was a correct statement of the law, and should have been given. The cause would not have been reversed, however, for the court’s failure to give it, since such failure could not have been prejudicial because of instruction No. 14 given. Instruction No. 18 given at the State’s solicitation and without request from the jury, after it had retired the second time for the consideration of its verdict, was not the law. It tells the jury that if the defendant, prior to the killing, formed the specific intent to take life of the deceased, and afterwards voluntarily became so drunk that he did not know what he was doing at the time of the killing, he would still be guilty of murder in the first degree, if he was But carrying out his predetermined purpose to.kill the deceased at the time the act was committed; and is contradictory of the law as heretofore laid down in the decisions of the court and as properly declared in instruction No. 14. Henslee v. State, 97 Ark. 105.
For this error, the judgment is reversed, and the cause remanded for a new trial. | [
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Sam Robinson, Associate Justice.
The principal issues here are whether one D. F. Keepers was an agent of appellant, G. W. Wilson, or an independent contractor, and whether a credit once applied to an open account can be changed to the detriment of a third party when such party is not consulted.
Appellant, Dr. G. W. Wilson, is a member of the School Board of the Greenland School District. At his own expense he had three buildings constructed for the school. The first structure was built in 1949 at a cost of $9,815.83; the second in 1950 at a cost of $7,596.93; and the third building was completed in 1952 at the cost of $45,170.41. Dr. Wilson employed D. F. Keepers to construct these buildings. After the last building was completed, there was owed to appellee, Morse Mill Company, $2,591.54 for material furnished on the job. Morse filed this suit for that amount against Dr. Wilson. Wilson contends that he is not liable because Keepers was an independent contractor, and further that, in any event, Morse cannot recover more than $1,197.28 because the account had been credited with $1,394.26 paid by Keepers which was later canceled without the consent of Wilson. It is the contention of Morse that Keepers was Wilson’s agent and that Wilson is liable for the entire amount. The cause was submitted to the court sitting as a jury and there was judgment for Morse Mill Company in the sum of $2,591.54. Dr. Wilson has appealed.
Whether Keepers was an independent contractor or an agent of Dr. Wilson’s is a question of fact. A finding of fact by the trial court has the same force and effect as a jury verdict. Gray v. Ford, Bacon & Davis, Inc., 210 Ark. 995, 198 S. W. 2d 508; Harvell v. Matthews, 189 Ark. 356, 72 S. W. 2d 214. The trial court’s finding of fact when a jury is waived is considered conclusive and will not be reviewed if supported by any substantial evidence. Wallis v. Stubblefield, 216 Ark. 119, 225 S. W. 2d 322. This court gives evidence adduced on behalf of the prevailing party the strongest probative force it will reasonably bear. Wall v. Robling, 207 Ark. 987, 183 S. W. 2d 605. Here, there is substantial evidence to support the finding that Keepers was Wilson’s agent. At the time of the trial of this cause Keepers had died, but by agreement of counsel the testimony he had given in a cause in the federal court, in which the government was seeking to recover social security taxes from Dr. Wilson, was admitted as evidence. According to this testimony, Keepers was acting in the capacity of Wilson’s agent and not as an independent contractor. He testified that there was no contract between him and Wilson:
‘ ‘ Q. And you had no contract with him to build the building? A. No contract whatever. Q. How-were you to be paid? A. Just as he paid me. Q. Did you draw a salary there, too? A. That’s what I worked on all the way through — a salary. Q. By the hour? A. By the hour. Q. How much an hour ? A. A dollar and a quarter an hour. ’ ’
This is substantial testimony to the effect that Keepers was not an independent contractor and, even though we should find that the judgment is contrary to a pre ponderarme of the evidence, we must affirm where there is substantial evidence to support the judgment.
Subsequent to the completion of the third building in 1952, Morse Mill Company rendered a statement to Dr. Wilson in the sum of $1,197.28, but later claimed that Wilson owed them $2,591.54. The change came about in this manner: Morse Mill Company was indebted to Keepers in the sum of $2,379.00. They paid this account by giving Keepers credit for that amount on the school job, but later they were directed by Keepers to credit $1,394.26 to another account Keepers owed to Morse. Morse then withdrew the credit from the school job and applied it to the other account. The question is, in these circumstances, could Morse legally void the credit given on the school job without the consent of Wilson.
In National Surety Company v. Southern Lumber & Supply Company, 181 Ark. 105, 24 S. W. 2d 964, the court said: “The exercise of the right of appropriation of payments belongs exclusively to the debtor and creditor, and no third person can control or be heard for the purpose of compelling a different appropriation from that agreed upon by them. But an appropriation by either party cannot afterward be changed so as to injuriously affect the rights of third persons.” The account was carried on the books of the Morse Mill Company in the name of Keepers, but it is their contention that Wilson is primarily liable. There is evidence in this case to the effect that Keepers had not applied to the school building account all of the money furnished to him by Dr. Wilson for that purpose, and it is not beyond the range of possibility that Wilson could have compelled the application to the school account of all the money owed to Keepers by the Morse Company.
In Smart, Administratrix, v. Owen, 208 Ark. 662, 187 S. W. 2d 312, this court quoted with approval from 41 C. J. S. 792 as follows: “The parties may agree as to the application of a payment, and may, by agreement withdraw a payment once credited on the mortgage and apply it otherwise, provided no third person is prej noticed thereby. ’ ’ In this case, Dr. Wilson was certainly prejudiced when the credit of $1,394.26 on the school account was withdrawn, and this credit should be restored. Since the cause appears to have been fully developed, the judgment is reduced to $1,197.28 and, as modified, is affirmed.
Justices Millwee and George Rose Smith dissent. | [
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George Rose Smith, J.
This is an action by the appellants for a writ of mandamus to compel the Commissioner of Revenues to issue permits authorizing the appellants to sell cigarettes at retail without payment of an Arkansas excise tax thereon. The appellants have places of business located either within three hundred feet of the Arkansas-Missouri state line or within a city adjacent to that line. Missouri does not now collect a tax upon the sale of cigarettes. The appellants, in claiming an exemption from the Arkansas tax, rely upon the last sentence in the following section of Act 249 of 1951, Ark. Stats. 1947, § 84-2304:
“There is hereby levied the following excises or privilege tax, to-wit: on all cigarettes a tax of three dollars ($3.00) per thousand cigarettes is hereby imposed. Provided, whenever there are two adjoining cities of a population of five thousand or more separated by a state line, the tax on cigarettes sold in such adjoining Arkansas city shall be at the rate imposed by law on cigarettes sold in such adjoining city without Arkansas, but not to exceed three dollars ($3.00) per thousand cigarettes. Provided, further, that the tax on cigarettes sold in Arkansas within three hundred (300) feet of a state line, or in any city in Arkansas which adjoins a state line, shall be at the rate imposed by law on cigarettes sold in the adjoining state, but not to exceed three dollars ($3.00) per thousand cigarettes.”
Before examining the statute we mention a preliminary matter. It is suggested by the appellee’s pleadings and brief that the issuance of a writ of mandamus would not terminate the dispute, since the form of retail permit used by the revenue department merely authorizes the holder to sell cigarettes, without reference to the matter of taxation. Even so, the complaint may equally well be treated as one for a declaratory judgment — a remedy peculiarly appropriate to controversies between private citizens and public officials about tbe meaning of statutes. Ark. Stats., § 34-2502; Quinones v. Landron, (CCA 1) 99 F. 2d 618; Alabama State Milk Control Bd. v. Graham, 250 Ala. 49, 33 So. 2d 11; Railroad Com’n v. Houston Nat. Gas Corp., (Tex. Civ. App.) 186 S. W. 2d 117. This complaint states all the facts necessary to a petition for a declaratory judgment, and it is the statement of facts rather than the prayer for relief that makes up the cause of action. Grytbak v. Grytbak, 216 Ark. 674, 227 S. W. 2d 633. Since the effect of a declaratory judgment in this case will be to terminate an actual controversy in a matter of public interest, it is manifestly desirable that the case be decided on its merits. See Ark. Stats., § 34-2505.
The appellee’s argument against what seems to be the plain meaning of the exemption clause in question is twofold. First, it is insisted that since the statute provides that the Arkansas tax ‘ ‘ shall be at the rate imposed by law” in the adjoining state, the legislature meant to condition the proviso upon the existence of at least some tax rate in the adjoining state. Hence it is argued that although a lower rate applies along the border of neighboring states that impose a cigarette tax, such as Oklahoma and Texas, it does not apply when the sister state has no tax at all, as in the case of Missouri.
The history of this section of the law conclusively refutes the appellee’s contention. By Act 152 of 1929 the legislature imposed a tax upon the sale of cigarettes and directed by § 29 thereof that the first revenue arising from the tax should be paid into the Common School Fund. Section 30 of that act contained this significant language:
“Wherever there are two adjoining cities of a population of five thousand or more separated by a State line, the tax on tobacco products sold in such adjoining Arkansas city shall be at the same rate imposed by law on tobacco products sold in such adjoining city without Arkansas. Provided, however, that in the event there is no tax imposed by law upon tobacco products sold in such adjoining city without Arkansas, then the schools in such adjoining city in Arkansas shall not be entitled to participate in the revenue derived from this Act. ’ ’
It will be observed that the 1929 statute contained the very language now relied upon by the appellee: ‘1 the tax shall be at the same rate imposed by law” across the state line. Yet the legislature obviously meant for these words to include the situation in which there was no tax imposed on the other side of the line; for in the next sentence it was provided that in such a situation the local Arkansas schools would not be entitled to participate in the revenue from the tax. To adopt the appellee’s construction of the exempting clause would involve the unjust condition, under the 1929 law, of the Arkansas citizens being required to pay the tax when there was no tax imposed by the adjoining state and yet being denied any share in the revenues simply because the sister state did not impose a tax. It goes without saying that no such inequitable result was intended by the legislature.
The language of the 1929 law was again used in Act 416 of 1941, with the same direction that the local schools should not participate in the revenue when there was no tax imposed across the line. By Act 109 of 1947 the legislature directed that the revenues from this tax be paid into the General Revenue Fund instead of the Common School Fund. Inasmuch as there was no longer any need for the special provision depriving the local schools of a share in the benefits of the tax, that clause of the prior law was not re-enacted.
Thus it is plain enough that in 1929 and again in 1941 the General Assembly meant for the exemption to apply to the situation now before us, in which no tax is imposed by the adjoining state. There is no reason to think that the legislature had a different intention when it repeated the identical language in Act 249 of 1951.
Second, the appellee’s brief is primarily devoted to the practical argument that if retail outlets in Arkansas are permitted to sell unstamped cigarettes it will be next to impossible to enforce the law against the importation of untaxed cigarettes, since the legal unstamped packages and the contraband ones will be indistinguishable. A complete answer to these fears is to be found in the statute itself, which enables the Commissioner of Revenues to anticipate the suggested pondition. The statute authorizes the Commissioner to “prescribe the kind of stamps to be used in the administration of this act.” Ark. Stats., § 84-2314. It also permits him “to make such rules and regulations as he deems requisite and advisable for the administration of this act.” Section 84-2325. There is thus ample authority for the Commissioner to prescribe an identifying stamp for cigarettes lawfully exempt from the tax.
Reversed, a declaratory judgment to be entered here.
McFaddin, J., dissents. | [
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Ed. F. McFaddin, Justice.
Aside from a procedural matter, the question here presented is whether the Trial Court was correct in sustaining the demurrer to the complaint.
On May 27, 1954, appellant Cranna, as administrator of the estate of Chumley, deceased, filed complaint against appellees, Long and wife, alleging that in January, 1950, Chumley-(then 83 years of age) -was mentally incapable of transacting business; that the Longs, • by duress and undue influence, obtained a deed from Chumley for certain lands; and that the Longs also received and converted personal property (cattle, furniture and silverware)' belonging to Chumley of the value of $5,-000.00. The prayer of the complaint was for cancellation of the deed, and for judgment for the value of the converted personal property. The Trial Court sustained the Long’s demurrer to the entire complaint; and Cranna, administrator, brings this appeal.
I. Procedural Matter. The appellees have moved to dismiss the appeal, saying: . . that the notice of appeal, as required by § 2 of Act 555 of 1953, was not given within 30 days after the date of the decree of the Fulton Chancery Court on October 12, 1954.” The majority of this Court holds this motion to be without merit. The record shows: that on October 12, 1954, the Trial Court announced that the demurrer would be sustained; that on October 14, 1954, the attorneys agreed on the form of the decree which sustained the demurrer and dismissed the complaint; that, on October 16, 1954, this de croc was filed with, the Clerk for entry; and that the notice of appeal was filed on November 12, 1954, which was within thirty days from the date the judgment was filed with the Clerk for entry.
Section 2 of Act 555 of 1953 says: “When an appeal is permitted by law . . . any party to the action may appeal from a judgment or decree, by filing with the Court in which the case is tried a notice of appeal within 30 days from the entry of the judgment or decree appealed from. . . .” (Italics our own.) The filing of the judgment with the Clerk for entry is the decisive date under the above quoted Statute. A case indicating this conclusion is Norfleet v. Norfleet, 223 Ark. 751, 268 S. W. 2d 287.
II. Sufficiency of the Complaint to Cancel the Deed. The administrator was the only plaintiff; the deceased had died intestate; and there was no allegation that the land was necessary to pay debts or expenses of administration. Prior to Act 140 of 1949 (the Probate Code), § 66 of Pope’s Digest was the governing Statute and said: “Lands shall be assets in the hands of the executor or administrator, and shall be deemed in their possession and subject to their control for the payment of debts.” Sec. 94 of the Probate Code (as now found in § 62-2401, Ark. Stats. ) says: “. . . real property shall be an asset in the hands of the personal representative when so directed by the will, or when and if necessary for the payment of debts, or expenses of administration. ’ ’ The quoted language of the Probate Code was not designed to make the administrator automatically entitled to the real estate of a deceased intestate. The quoted language of the Probate Code continues the rationale of our cases decided under § 66 of Pope’s Digest; and these cases hold that the legal title of an intestate’s land, upon his death, descends and vests in his heirs at law, subject to the widow’s dower and the payment of debts through his administrator. See Stewart v. Smiley, 46 Ark. 373; Jones v. Jones, 107 Ark. 402, 155 S. W. 117; and Mayo v. Bank of Marvell, 188 Ark. 330, 65 S. W. 2d 549. Sec. 62-2701, Ark. Stats., in abolishing the priority between personal property and real property for the payments of the debts of the deceased, applies after it has been determined that the lands are necessary for the payment of debts. That section does not change the long established rule of onr cases, as above cited.
Sec. 62-2401, Ark. Stats., says: “When real property has become an asset in the hands of the personal, representative, as hereinbefore provided . . . the personal representative may . . . maintain or defend an action for the possession thereof, or to determine or protect the title thereto until such real property is sold. . . . ’ ’ In the case at bar, there is no allegation that the real property had ever become an asset in the hands of the administrator, so the above quoted section does not support the appellant’s claim in this Court. The complaint contained no allegation so as to make applicable § 62-2402. Likewise, neither § 62-2409 nor § 62-2714 has been invoked. Therefore, we find no allegation in the complaint sufficient to support the administrator’s effort to recover the lands; and the Chancery Court was correct in sustaining the demurrer to the complaint insofar as the lands were concerned.
III. Sufficiency of the Complaint to Recover the Value of the Personal Property. The complaint alleged that the Longs had converted to their own use various items of personal property of Chumley’s of a value of $5,000.00, and there was prayer for judgment. The Trial Court was in error in sustaining the demurrer to that portion of the complaint concerning the personal property. Sec. 62-2401, Ark. Stats., says: “A personal representative shall have the right to and shall take possession of all of the personal property of the estate of the decedent. . . .” This section is in keeping with our Statutes and the cases theretofore existing. The administrator is empowered to sue for and recover the personal property of the estate, so the complaint stated a good cause of action insofar as the personal property is concerned.
If the defendants thought the complaint indefinite they should have filed a motion to make more definite and certain. A demurrer was not proper for that purpose. State v. Aetna Fire Ins. Co., 66 Ark. 480, 51 S. W. 638; Murrell v. Henry, 70 Ark. 161, 66 S. W. 647; and Ottinger v. Ferrell, 171 Ark. 1085, 287 S. W. 391. Limitations did not appear on the face of the complaint so the demurrer could not raise that issue. Driesbach v. Beckham, 178 Ark. 816, 12 S. W. 2d 408; and Cullins v. Webb, 207 Ark. 407, 180 S. W. 2d 835.
Therefore the decree is reversed insofar as it dismissed the complaint as to the personal property, and the cause is remanded as to the personal property.
The section references herein are to those in the Cumulative Pocket Supplement to Ark. Stats. | [
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J. Seaborn Holt, J.
December 21, 1954, appellant was charged by information with the crime of manslaughter as follows: “The said defendant on the 18th day of December, 1954, in Phillips County, Arkansas, did unlawfully, and feloniously operate his automobile upon the highways in a negligent and careless manner with willful, wanton and reckless disregard for the safety of others using said highways and did strike one Neville Hollowell and inflict upon him severe injuries from which said injuries he died.”
A jury trial, May 9, 1955, resulted in the verdict of guilty of the crime as charged and his punishment fixed at a term of one year in the penitentiary. Prom the judgment is this appeal.
Appellant relies for reversal on the single ground that the evidence was not sufficient to support the verdict. We do not agree.
The evidence viewed in the light most favorable to the State was that about 5:00 o’clock p. m. December 18, 1954, Sergeant Galloway, of the State Police, went to the scene of a collision of automobiles at a point near a bridge on the paved highway which runs east and west between Helena and Barton, Arkansas. On arrival he testified that he found one car off the highway in the ditch and another car involved was on the highway in the south traffic lane headed east. The north lane was clear. Officer Galloway directed Otto Yonkendal, father of Paul Yonkendal- — -who was involved in the first collision, to go across the east end of the bridge to flag oncoming traffic. Meanwhile Galloway, Junior Phillips and Neville Hollowell were pushing the damaged car off the highway. The first collision that occurred, before the officers reached the scene, happened about 235 feet from the east end of the bridge. Before Otto Yonkendal had reached the bridge he heard appellant’s car coming and called to Galloway, “Dwight, look out, here he comes, ’ ’ and he tried to slow appellant down with a flashlight, but appellant made no attempt to stop but “plowed into” the car they were pushing off the highway. The pavement was dry and there were no skid marks following this collision. Officer Galloway was struck by appellant’s car and knocked about 20 feet into a ditch at the side. When he got up he saw Phillips had been knocked down the road and the little Hollowell boy (who later died from his injuries) was lying unconcious with his left leg severed below the knee. Appellant, after he got out of his car, was staggering around in a drunken condition. Galloway said he smelled whiskey on appellant, who frankly admitted he had consumed about two-thirds of a bottle of whiskey that afternoon and that he was going between 50 and 55 miles per hour when the mishap occurred. Appellant further testified:
“A. . . . there were people standing around the ears.
“Q. Weren’t you looking at the car before you hit it?
“A. No, sir, I saw some people around it, but it happened so fast I couldn’t tell about it.
“Q. If the road was, as you say, wet and it was just dusk dark and your lights didn’t do much good, do you think you were using proper precautions along there under those circumstances'?
“A. No, sir, I guess I wasn’t.”
It was not dark at the time. The testimony of other witnesses tended to corroborate Officer Galloway.
Appellant testified that he was not drunk, that the road was slick, that he applied his brakes in an effort to avoid the collision but went into a skid and could not stop. As pointed out there was evidence on the part of the State that the pavement was dry and that there were no signs of skid marks.
The section of the statute under which appellant was convicted reads:
Stats. § 41-2209, Ark. Stats. 1947 — -“Involuntary manslaughter defined. — -If the killing be in the commission of an unlawful act, without malice, and without the means calculated to produce death, or in the prosecution of a lawful act, done without due caution and circumspection, it shall be manslaughter. Provided further that when the death of any person ensues within one [1] year as a proximate result of injury received by the driving of any vehicle in reckless, willful or wanton disregard of the safety of others, the person so operating such vehicle shall be deemed guilty of involuntary manslaughter. [Rev. Stat., ch. 44, div. 3, art. 2, § 3; C. & M. Dig., § 2356; Pope’s Dig., § 2982; Acts 1947, No. 169, § 1, p. 397.] ”
We hold that there was ample evidence to support the State’s contention that appellant was at the time of collision driving his car in “a reckless, willful, wanton disregard of the safety of others” and that the jury was warranted in so finding and in rendering a verdict of guilty. See Campbell v. State, 215 Ark. 785, 223 S. W. 2d 505.
There is no complaint as to any of the instructions. Finding no error, the judgment is affirmed. | [
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Frauenthal, J.
This is an action instituted by the appellee to recover damages for an injury which he alleged he received by reason of appellant’s negligence. The appellee was employed by appellant as a carpenter, and was engaged in the construction of a roundhouse in the city of Argenta. On the day of the injury, he and five other workmen in appellant’s employ were directed to carry certain heavy timbers to the roundhouse. At the time of the injury, they were carrying a large timber twenty-five to thirty feet long, and weighing about 425 to 450 pounds. The workmen were divided into pairs, and each pair had a lug-hook, which caught beneath the timber and supported it, while the workmen held the ends of the bars or handles. This arrangement caused three men to be on each side of the timber, one being at each end and one in the center.
The appellee and a fellow-servant named Meadow occupied the center position. In taking a timber from a pile, it was necessary for Meadow to get upon the pile and go down after the timber had been lifted. According to the usual manner in which this was done, he would walk along the timber on the pile to its end, where it sloped nearer to the ground, before stepping off. On this occasion, Meadow had mounted on the pile, which was from eighteen to twenty inches high, and the workmen picked up the timber and started to walk away with it. The appellee was holding on to the handle of the lug-hook upon his side of the timber, and Meadow was holding to the other handle upon the opposite side. The lug-hook was so constructed that as Meadow raised his end of the handle while standing upon the pile it lowered the end of the handle, which was held by appellee. Instead of walking down to the end of the timber upon which he was standing, Meadow suddenly and without notice to the appellee stepped off the timber, from the elevation of eighteen to twenty inches, on to the ground. The effect of making this step was to cause the handle of the lug-hook in appellee’s hand to go up, and when Meadow reached the ground he gave the hook a severe pull, which jerked the handle in appellee’s hands suddenly downward. The testimony on the part of appellee tended to prove that the effect of this was to make a greater lift or strain upon him, and cause a sudden strain upon his abdominal muscles, resulting in an injury known as inguinal hernia. The appellee testified that at the time he received the injury he felt a severe pain in the groin, and immediately sat down and quit work. His foreman gave him a certificate for admission to the ap pellant’s hospital, but appellee returned to his home and there secured the services of a physician. Since the injury he has suffered much pain, and has been compelled to wear a truss. He has been unable to perform the work of a carpenter since the injury was received.
The witness Meadow testified that in carrying all other timber he had walked to the end of the pile where it was nearer to the ground before stepping off. That upon this occasion he did not do this, but was about eighteen or twenty inches above the ground and stepped off the timber upon which he was standing, in an awkward and unusual way. Upon the trial of the case, a verdict was returned in favor of appellee.
The chief reasons urged by counsel for appellant why the judgment rendered on this verdict should be reversed are, (1) that the injury was due to a risk which appellee assumed when he undertook the employment in which he was engaged; and (2) that there is not sufficient evidence to warrant the jury in finding that the alleged injury was caused by any act of the appellant or its servants.
It is urged that appellee’s employment was of a very simple character, unconnected with any complex machinery or appliances wherein there might lurk unsuspected and unknown dangers, and that the injury was but the result of one of the ordinary risks incident to the work in which appellee was engaged. It is contended that the appellee is precluded from a recovery because he assumed such risk.
It has been repeatedly held by this court that a servant assumes all the ordinary and usual risks and hazards that are incident to the service in which he is engaged. When he knows the methods that are adopted, the place which is furnished and the appliances, with which the work is done, he assumes the ordinary risks of injury which may result from such known methods and appliances. But it has been also repeatedly held that a servant does not assume the risk of any injury which arises from the master’s negligence; and when such master is a railroad corporation, as in this case, he does not assume the risk of any danger or peril arising from the negligence of a fellow-servant. St. Louis, I. M. & S. Ry. Co. v. Ledford, 90 Ark. 543; St. Louis S. W. Ry. Co.v. Burdg, 93 Ark. 88.
From the testimony which was given by the appellee and his fellow-servant upon the trial of this case, we are of the opinion that the jury were warranted in finding that the injury was caused by an act of said fellow-servant, and that such act was one of negligence. According to this testimony, appellee was in the exercise of due care at the time, and he had a right to presume that his fellow-servant would also exercise due and ordinary care in the performance of his part of the work in which both were engaged. He was justified in believing, and in acting upon the belief, that this fellow-servant would do his part of the work in the ordinary and usual manner in which it had been done — that is, that, after lifting the timber which was being carried, his fellow-servant would walk down the timber upon which he was standing to its end, where it was nearer the ground, before stepping off. The jury, we think, were warranted in finding that in the exercise of due care he should have done this, or that he should have warned appellee before stepping off the timber at a point where he was at a great height from the ground. In stepping from the timber' at this point to the ground, contrary to the usual way in which the work was done, and without giving any warning to appellee of his unexpected action, we are of the opinion that the jury was justified in finding that he was guilty of an act of negligence. If this act of negligence resulted in the injury of appellee while he was in the exercise of due care for his own safety, then appellant is liable for the damages which he sustained thereby. Missouri & North Ark. Ry. Co. v. Van Zant, 97 Ark. 486.
It is insisted that, according to the undisputed testimony, the injury which appellee complains of was not caused by the act of his fellow-servant, or by the work in which he was then engaged. It is urged that the trouble from which he suffers was the result of his former weakened physical condition, making him subject to hernia; but we do not think that this contention is borne out by the evidence. The testimony of the physicians tended to prove that inguinal hernia, from which appellee now suffers, might be caused by a sudden jerk, strain or fall. One of these physicians had treated appellee a few months prior to the time that he claims to have received this injury, and at that time appellee did not complain of any sore ness or injury in the inguinal canal. ' Immediately after undergoing the strain caused by the jerk or jar, the appellee felt a severe pain in the groin, and on that account had to sit down and quit the work. The witness Meadow testified that he made an awkward and unusual step in going from the pile of timber on to the ground; and the jury were warranted in finding that this caused the handle of the lug-hook in appellee’s hand to be suddenly jerked down, so as to throw on him a greater lift or strain, which might have resulted in this injury.
We are therefore of the opinion that there was some evidence adduced upon the trial of this case from which the jury were warranted in finding that the injury which appellee received was caused by the negligent act of his fellow-servant.
In this connection, the appellant complains of the following instruction which was given: “If you find that the defendant company in this case is liable under the instructions given by the court, and that the plaintiff received injuries complained of in the manner alleged, and that at the time of such injury he was predisposed to hernia, but otherwise in good health, and that said injury was solely excited or caused by the sudden jerk of the handle of the lug-hook in plaintiff’s hand, and without his fault, and that his injury, whatever you find that to be, has directly resulted therefrom, then you are instructed that the plaintiff is entitled to recover to the fullest extent of whatever you find his injuries so received to warrant, notwithstanding such predisposition or weakness in regard to hernia.”
A similar instruction was approved by this court in the case of St. Louis S. W. Ry. Co. v. Lewis, 91 Ark. 343. The facts in the case at bar as to the cause of the injury are in many respects similar to those in that' case; at least, they are not so different as to make the above instruction inapplicable to the facts of this case.
Upon an examination of the entire record, we do not find that there was any prejudicial error committed in the trial of this case. The judgment is accordingly affirmed. | [
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Robinson, J.
The appellant is the widow of Arnold G. Triebsch. Prior to his death, Triebsch had been awarded compensation for an injury received in the course of his employment, and for which he was being paid compensation at the time of his death. The issue is whether he died from the effects of the injury causing his disability or from some other cause. The Workmen’s Compensation Commission held that his death was not the result of the disability for which he had been awarded compensation and hence that the widow is not entitled to recover death benefits.
The law is settled in this State that if the employee dies as a result of the disability for which he had been awarded compensation, the cause of such disability is res judicata. We said in Bell v. Batesville White Lime Company, 217 Ark. 379, 280 S. W. 2d 643: “We think the Commission erred in retrying the issue of accidental injury. When the Commission’s finding upon an employee’s claim is res judicata as to his widow and children is a question of first impression in Arkansas. Several states have held that the rule of res judicata does not apply, but in most of them the peculiar wording of the compensation act permits the commission to modify its awards at any time. Our own provision for modification is not so broad. See § 81-1326. We believe the better reasoned cases to be those holding that a decision rendered during the employee’s lifetime upon his assertion of compensable disability is binding when his dependents raise the same issue after his death.”
This court has held previously that Triebsch’s disability was compensable. Triebsch v. Athletic Mining & Smelting Company, 218 Ark. 379, 237 S. W. 2d 26. Hence, there is only one issue in the case at bar and that is: Did Triebsch die from the same cause that brought about his disability?
For nineteen years, Triebsch had worked in the boiler room of the Athletic Mining & Smelting Company’s plant at Fort Smith. On the night of January 28, 1949, he became disabled. With reference to his disability, this court made the specific finding: “In the course of his work on that night appellant (Triebsch) collapsed and suffered a physically disabling attack, or breakdown, so that he is now totally and permanently disabled.”
The record in the first case was made a part of the record in the case at bar. There was evidence in the first case that Triebsch suffered with bronchial asthma, bronchiectasis, emphysema and chronic nephritis. Whether the nephritis was caused by the pulmonary trouble, which was in turn caused by his working conditions, was a sharply contested point. In the first case, the employer contended that Triebsch’s disability was due to a “combination of renal (pertaining to the kidney) and pulmonary factors, the primary cause being principally of renal origin”, and that “the renal disease was degenerative in character and in no way associated with the pulmonary condition”.
Whether the kidney condition resulted from the lung condition was an issue in the first case. In that case, Dr. Cull, who was a witness on behalf of the employer, said: “In my opinion, Mr. Triebsch’s disability is definitely due to a combination of both pulmonary emphysema and nephritis. ... I do not regard the pulmonary emphysema in this case as either a causative or contributory factor in the chronic nephritis.” On the other hand Dr. Iloge, who testified on behalf of the employee, stated: “I further disagree with Dr. Gull in his statement that the pulmonary emphysema is not a causative or contributory factor in the chronic nephritis. I disagree with this statement because his (Triebsch’s) previous records show that he had had an infection associated with emphysema, and there is no other factor to which one can attribute the etiology of this nephritis. It is a known fact that infection in any part of the body can and usually is the etiologic factor causing chronic glomerulonephritis.” Appellees’ principal contention in the case at bar is that Triebsch did not have glomerulonephritis; that glomerulonephritis can be due to an infection but that the kind of nephritis that Triebsch had could not be caused by an infection. This is one of the same issues that was present in the first case.
In the first case, it was shown that Triebsch was totally and permanently disabled due to lung and kidney trouble which was aggravated by his working conditions and was therefore compensable. According to the undisputed evidence in the case at bar, he died because of lung and kidney trouble, the very same lung and kidney trouble this court has previously held to be compensable. Therefore, the issue is res judicata and appellant is entitled to collect the death benefits provided by the Workmen’s Compensation Law.
Reversed.
Justices McF addin and George Rose Sm;ith dissent.
Justice Holt not participating. | [
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J. Seaborn Holt, Associate Justice.
May 16, 1955 a jury found appellant, John Gabbard, guilty of the crime of indecent exposure of the person under § 41-1127 Ark. Stats. 1947-Supplement, and fixed his punishment at a term of six months in prison. From the judgment comes this appeal. Only one brief, that of the State, has been filed here.
Appellant’s motion for a new trial contains nine alleged assignments of errors. Under the first five he, in effect, contends that the evidence was not sufficient to support the verdict. We do not agree. Section 41-1127 above provides: “It shall be unlawful for any person with lascivious intent to knowingly and intentionally expose his or her private parts or genital organs to any other person, male or female, under the age of sixteen (16) years. [Acts 1953, No. 94, § 2, p. 281.] ”
I
R. E. Griffin, a witness for the State, testified that appellant came to his home on Mitchell Strqet in Fayetteville and inquired for the mother of the little 14 year old girl involved here. Quoting from his testimony: “A. Well, he just come down there, said he wanted to talk with me awhile and this little girl and me was out in the yard there and he kept throwin’ his gab at her and directly they went off to see her mother . . . Q. Now, did you hear him talking to the little girl? A. I sure did. Q. Do you remember what he said to her? A. I couldn’t remember it all. He just said that he wanted to see her mother, it had been a long time since he had seen her. Q. Did she go with him in the ear? A. She went with him in the car. Q. Which way did they leave from your house? A. They went east to the fair ground where the new street is. Q. Went east? A. Yes, east on Mitchell Street in front of my door. Q. When did you next see these two people that afternoon, if you did see them? A. Well, they come from the north and when he got even with this street, he stopped and let her out and she didn’t much more than hit the ground until he put the gas to it and left. Q. Now, will you tell the jury or describe to the jury the condition of the little girl when she got out? A. Well, sir, she was a cryin’ and she didn’t get much further than that table there, she said, ‘He mistreated me.’ ”
The little girl testified that Gabbard asked her where her mother was and she told him her mother was working at the Home Town Cafe. Gabbard asked her to go with him and she did. Gabbard drove out by the University farm and on out by the lime kiln and then stopped on the top of a mountain, then came around and opened the car door, shoved her down in the seat. He had his personal parts out and asked her to zip up his breeches but she refused to do so. A car then came along and he acted like something was wrong with the car. After the car passed he got on top of her. She was crying at the time. She saw his private parts when he got off her and that he tried to have sexual intercourse with her. As indicated, this evidence was ample to support the verdict.
II
Appellant next contends that the court erred in allowing R. E. Griffin to testify over his objections, that the prosecutrix told him [Griffin] on her return that the appellant had mistreated her. This evidence was properly admitted in the circumstances. It was proper evidence to show that this little girl accused appellant of the offense charged. It was proper for Griffin to state that the accusation of the prosecutrix was made to him, but he was not permitted to state any of the details as stated to him by the little girl. “The true rule would seem to be that while evidence may be admitted to show that the prosecutrix, within a reasonable time, reported the crime to an appropriate person and told what occurred, and the person receiving the information may testify that an accusation was made, yet it is not competent for such witness to support testimony of the prosecutrix by repeating in detail what was said by the prosecutrix.” Lindsey v. State, 213 Ark. 136, 209 S. W. 2d 462.
III
Next, appellant says that the court erred in allowing the following question to be propounded to the mother of the prosecutrix and her answer :
“Q. As her mother, do you know whether or not she has menstruated yet?
A. No sir, she hasn’t.”
The record reflects there was no objection made to this question and answer. It is now too late to raise this question for the first time here. See Yarbrough v. State, 206 Ark. 549, 176 S. W. 2d 702.
We have carefully examined the remaining assignments of alleged errors and find each to he wholly without merit. The judgment is affirmed. | [
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Ward, J.
This ease arose out of the condemnation of certain lands situated in Sebastian County, Fort Smith District, Arkansas. On July 16, 1952, the County Court of Sebastian County, Fort Smith District, Arkansas, at the request of the Arkansas State Highway Commission, proceeding under Ark. Stats., § 76-510, entered its order condemning lands belonging to appellee, B. L. Croom, and other property owners, in connection with the widening and resurfacing of Towson Avenue located principally within the City limits of Fort Smith, Arkansas. The condemnation order specified that the City of Fort Smith and Sebastian County [Fort Smith District] were to share the cost of right of way acquisition on an equal basis, and that the Highway Commission was to remove and clear obstructions. The order further stated that claims for damages must be presented within one year.
Pursuant to said order appellant, the Arkansas State Highway Commission, entered upon the lands of appellee for the purpose of clearing the right of way and reconstructing the said street. However, appellee objected to such entry and thereupon appellant, on May 13, 1953, made application in the Chancery Court for an order enjoining appellee from interfering with and molesting its operations. The Chancery Court restrained appellee but required appellant to make a deposit in the registry of the court to guarantee the payment of any damages that might be adjudged in favor of appellee if same were not paid.
The pertinent part of the Court’s order reads: “. . . the defendant [appellee] is entitled to have deposited in the registry of this Court the sum of $6,500 to be held therein as a cash bond to guarantee payment of defendant’s damages, if any, occasioned by the taking of his said lands by condemnation order of Sebastian County Court, Fort Smith District, as is set forth in the complaint filed herein, and by construction of the highway, if such damages, if any, are not paid after being-ascertained in the manner provided by law by Sebastian County, Arkansas, Fort Smith District and/or the City of Fort Smith, Arkansas, in accordance with said condemnation order . . . ”
Subsequent to the above proceedings appellee filed his claim for damages in the County Court, but not being satisfied with the allowance, he appealed to the Sebastian Circuit Court where a judgment in the sum of $6,500 was secured against the County. Appellant was not a party to that proceeding, and no appeal has been taken from the judgment.
Following the judgment in circuit court, appellee filed a motion in the Sebastian Chancery Court on January 11, 1955, praying that the deposit of $6,500 placed in the registry of the court by appellant be paid to him in satisfaction of the judgment theretofore rendered against Sebastian County. Appellant resisted the above motion and, after a hearing on January 14, 1955, the Chancery Court sustained appellee’s motion and directed appellant to pay over to appellee the amount of its deposit. From the above order of the Chancery Court appellant prosecutes this appeal.
The trial court erred in sustaining appellee’s motion and in directing that the sum of $6,500 be summarily paid to appellee. It is clear that appellant is not hable for damages caused. appellee as a result of the County Court condemnation order since appellant was not a party to that procedure and was not otherwise bound thereby, as we have heretofore held in the cases of Arkansas State Highway Commission v. McNeil, 222 Ark. 643, 262 S. W. 2d 129, and State of Arkansas Highway Commission v. Palmer, 222 Ark. 603, 261 S. W. 2d 772. This court in those cases discussed the methods of obtaining rights of way as set forth in Ark. Stats., § 76-510 and § 76-511. It was stated in the latter case that if the procedure was instituted at the request of the Highway Commission [as it was in the case under consideration] “the county became liable for all damages for such taking.” It was there also further explained that if the Highway Commission had instituted proceedings under § 76-511 [as it did not do here] “it would have been obligated to pay all damages, but could have charged back to the County fifty per cent of the cost.”
It follows therefore that if any liability for damages to appellee exists now or may exist in the future it is because of the deposit it made in chancery court as a prerequisite to obtaining the writ of injunction against appellee. It will be noted that the injunction order specified in effect that there would be no obligation on appellant to pay damages to appellee unless such damages, if any, were not paid by Sebastian County. Therefore it is obvious that the obligation placed on appellant [to pay damages to appellee] was in the nature of the obligation of a guarantor and not a primary debtor.
At the time the chancellor made the order from which comes this appeal no showing was made that appellee had legally and properly presented for collection his judgment against the County, no showing that the County had legally refused to pay him, and no adequate showing that the County was financially unable to pay. The only attempt on the part of appellee to show the County was unable to pay his judgment was testimony to the following effect: The Prosecuting Attorney said the County Judge said no appropriation had been made. The County Judge said that none had been made, that he had asked for none, that appellee had presented no claim, and that he thought the Arkansas Highway Commission’s bond would take care of appellee’s judgment. Appellee admitted that no formal or written claim had, to his knowledge, been presented to the County. In dealing with a similar situation, in The State Life Insurance Company of Indianapolis, Indiana v. Arkansas State Highway Commission, 202 Ark. 12, 148 S. W. 2d 671, this court said:
“Appellant had and still has a complete and adequate remedy at law. It is not alleged or attempted to be proven that Benton County is insolvent and cannot pay any damage suffered by appellant, and the burden was on it to do so. There is no presumption of insol vency as to the state or any of its political subdivisions. In fact the presumption is to the contrary. ’ ’
In accordance with the many decisions of this court it is well established of course that a person’s land cannot be taken under condemnation proceedings without just compensation, but we can think of no possible way by which appellee in this instance will not eventually receive compensation for his land, if he pursues the legal remedies available to him to collect the judgment he has against the County. If however it later develops that appellee cannot obtain compensation from the County because of its financial inability to pay, or for any other legal reason, the deposit which appellant has made will then be available in the Chancery Court for that purpose.
The views expressed above force the conclusion that the trial court was premature in ordering appellant’s deposit in that court paid to appellee.
It was the opinion of the trial court that its action was justified under the holding in the McNeil case, supra. The trial court quoted and laid stress on a certain portion of the opinion where it was said ‘ ‘ perhaps, as counsel suggest, the State will ultimately bear a substantial part of the liability as a result of having made the $15,000 deposit as a condition to entering upon the land.” We can see nothing in the McNeil case to sustain the court in its conclusion. It was plainly stated in the cited case that “the State is not lawfully subject to liability in this case.” It was further stated “the Palmer case and its predecessors have established the rule that in a proceeding such as this one, brought under Ark. Stats. 1947, § 76-510, the State is immune from liability; the sole responsibility rests upon the County, as a result of the County Court’s action in granting the request that a right of way be provided at County expense.” It is true that in the McNeil case the court said that perhaps the State will ultimately be liable on the deposit made in chancery court. The statement was correct in that case and it would be, as explained above, correct to make the same statement in connection with the deposit in this case.
Appellee makes this statement: “This court’s decision in Arkansas State Highway Commission v. Partain, 192 Ark. [127] at page 131, [90 S. W. 2d 968], we think, is clearly decisive of all the issues in this case,” and quotes extensively from the opinion. Then special reliance is placed on this phrase [from the quote]: “This deposit is in effect the payment in advance which the Constitution requires as a condition upon which the property must be taken.” A careful reading of the Partain opinion reveals facts and issues so different from those obtaining here that it obviously does not support appellee’s contention. In the cited case there had not been any condemnation proceeding, the property owner had recovered no judgment for damages, and no deposit of cash or bond had been made in court for the property owner’s protection over which the court had control. The language [quoted above] which appellee considers significant in this case is fully explained by the court’s language immediately preceding the quotation. The explanatory language we refer to was a general statement of law made by the court as follows:
“There is authority in the law whereby the court. in which condemnation is prayed, may require a deposit in court of a sum of money sufficient to pay any and all damages which may reasonably be assessed; and the deposit must he in the registry of the court where the damages will he assessed. . . .” [Emphasis supplied.]
In using the above language and in using the language relied on by appellee, the court obviously ivas not talking about the kind of a deposit made in the case before us. Here the deposit of $6,500 was not made in the court which condemned appellee’s property and it was not made by the condemner.
Accordingly the decree of the trial court is reversed. | [
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J. SeaborN Holt, J.
This appeal involves the question of the right of the Arkansas Game and Fish Commission to adopt rules and regulations for the conservation and regulation of wildlife in Arkansas. Specifically the question is whether the Commission could promulgate a rule to require a license fee of $1.50 on each hound dog used for chasing foxes for pleasure, and also a penalty for failure to comply.
The question arose in this manner: Appellee Chester Casey was on March 31, 1954, charged in a Justice of the Peace Court with the offense of hunting foxes with a fox hound without first having- procured a license at a cost of $1.50 for said hound. Appellee, before trial was had in the Justice Court, filed petition in the Carroll Circuit Court alleging “that the Justice of the Peace was without jurisdiction to try said cause, for the reason the petitioner is not charged with an offense in violation of the laws of the State of Arkansas or any municipality therein and asked that said Justice of the Peace be prohibited and restrained from proceeding further in said cause.” Hearing was had on this petition January 29, 1955, and the court found that the petition should be granted “for the reason that Section J of the Game and Pish Commission Code No. 100 issued and effective January 1, 1953, is an attempt to abrogate, § 47-201, Sub-section K, of the Arkansas Statutes (1947) which fixes the fee at $.50 and that the Pish and Game Commission is without power to arbitrarily raise the fees for revenue purposes, fixed by the legislature.”
This appeal followed. In this court the appellant has waived any objection to the method of proceeding, by prohibition, in the circuit court, and that issue is not before us. Amendment 35 to the Constitution of Arkaiisas became effective July 1, 1945, by which the Arkansas Game and Pish Commission was created and given broad and comprehensive powers. This amendment “is complete within itself, and prior legislative Acts, whether directive or restrictive in nature, have been superseded. It seems to have been the purpose of those who ivrote the Amendment to cover the whole subject, and to either provide, or leave to the Commission, methods for reaching these ends,” W. R. Wrape Stave Co. v. Arkansas State Game and Fish Commission, 215 Ark. 229, 219 S. W. 2d 948.
Section 1 of the amendment provides “The control, management, restoration, conservation and regulation of birds, fish, game and wildlife resources of the State, including hatcheries, sanctuaries, refuges, reservation and all property now owned, or used for said purposes and the acquisition and establishment of same, the administration of the laws now and/or hereafter pertaining thereto, shall be vested in a Commission to be known as the Arkansas State Game and Pish Commission” arid in Section 8 we find this provision, “Resident hunting and fishing license, each, shall be One and 50/100 Dollars annually, and shall not exceed this amount unless a higher license fee is authorized by an Act of Legislature.”
We think it clear from this unambiguous language that the people in enacting Amendment 35 intended that the Game and Fish Commission should collect from all resident hunters and fishermen a license fee of $1.50 each for the privilege of hunting and fishing, until such time as the Legislature should authorize a higher license fee to he collected. The power to fix this license fee at more than $1.50 rested solely with the Legislature and not the Commission.
The Commission on January 1, 1953, promulgated in its ‘ ‘ Game and Fish Code ’ ’ the following rule and regulation in Section 22-J-100, “It shall he unlawful to hunt, pursue, chase or take any deer, rabbit, squirrel, raccoon, opossum, fox or other fur-bearing animal, wild turkey, wild duck, quail, snipe, woodcock or other wild fowl, game bird or wild animal or fur-bearing animal in this State with a dog without first procuring a license for each dog so used for which license the sum of $1.50 shall be paid.”
As indicated, Appellee argues and the trial court held that this Section J in so far as it raises the licénse fee on fox hounds used for pleasure in chasing foxes, from $.50 to $1.50, violates or abrogates § 47-201-K-Arkansas Stats. 1947, which section provides “It shall be unlawful to hunt, pursue,- chase, or take any deer, wild turkey, wild duck, quail, snipe, woodcock or other wild fowl or game bird in this state, with a dog, without first procuring a license for each dog so used, for which license the sum of one dollar and. fifty cents ($1.50) shall be paid, provided a special license, a.t a fee of fifty cents (50 cents), shall be procured for each dog used in chasing fox for pleasure.”
We do not agree. The above § 47-201-was enacted by the 1943 Legislature which was prior to the effective date of Amendment 35 (July 1,1945). This Amendment 35 in § 1, as pointed out above, gave the Commission broad power and authority to control, manage, restore, conserve and regulate the game and wildlife resources of Arkansas, including sanctuaries, refuges, reservations, and all property now owned or that may be acquired by the Commission and used for said purposes.
Section 8 of the amendment further provides, “The Commission ¿hall have the exclusive power and authority to issue licenses and permits, to regulate bag limits and the manner of taking game and fish, and fur-bearing animals, and shall have the authority to divide the State into zones, and regulate seasons and manner of taking game, and fish and fur-bearing animals therein, and fix penalties for violations.” Under these provisions of this amendment we hold that the Commission has been given full and complete administrative power and authority to promulgate rules and regulations necessary for the conservation and preservation of all wildlife including not only the power to establish a bag limit, set seasons in which to hunt and fish and the penalty for violations but also the power to levy a license fee on all hunting dogs, just so long as such license fees are not unreasonable or arbitrary and are for regulatory purposes — as appears here — and not for revenue. This power to levy and to fix the amount of license fee on each hound dog has been reserved to the Commission alone. Obviously the people by enacting this amendment intended that the Commission should have sufficient and ample funds with which to function in preserving and propagating wildlife in the manner provided therein. As pointed out above, it was the purpose of those who wrote this amendment to cover the whole subject relating to the wildlife conservation and to provide or leave to the Grame and Fish Commission methods of reaching those ends.
Section 8 above contains this further language “The fees, monies, or funds arising from all sources by the operation and transaction of the said Commission and from the application and administration of the laws and regulations pertaining to birds, game, fish and wildlife resources of the State and the sale of property used for said xmrposes shall be expended by the Commission for the control, management, restoration, conservation and regulation of the birds, fish and wildlife resources of the State, including the purchases or other acquisitions of property for said purposes and for the administration of the laws pertaining thereto and for no other purposes.”
We hold, therefore, that Amendment 35 vested in the Commission the power to fix the amount of license fees, with the exception that the fees for resident hunting and fishing licenses can be increased only by legislative act. With respect to other license fees, such as the one involved here, the Commission’s authority is clearly stated in this sentence in the Amendment: “All laws now in effect shall continue in force until changed by the Commission.’’ It follows that § 47-201-K of the statutes, which fixed the annual license fee for fox hounds at fifty cents, has been repealed and superseded by the Commission’s regulation raising the fee to $1.50 annually.
Accordingly the judgment is reversed and the ease remanded for further proceedings consistent with this opinion.
Chief Justice Seamster and Justice Millwee dissent. | [
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J. Seaborn Holt, Associate Justice.
This is a suit by appellee, Arrington, to quiet his title to the oil, gas and other minerals in and under the of NW14 of NE% of Sec. 19, Tp. 19 S, R 18 W, Columbia County and to remove cloud on his title created by Sheriff’s deed made pursuant to an execution sale to T. S. Gray-son, now deceased, and who was survived by appellants. Appellee deraigned title from the State by virtue of a tax correction deed of August 19, 1946, duly recorded, and by a mineral deed dated September 7, 1946, recorded, and made by "W. C. Taylor and wife to appellee. (Taylor had previously owned both surface and minerals but had conveyed the surface, which eventually went to T. S. Grayson, and retained all minerals.)
October 30, 1945, the State conveyed by tax deed to appellee the minerals in the 20 acres here involved, but erroneously described it to be in Range 19 when it should have been Range 18. The. State did not own any interest in Range 19, but did own the royalty in the 20 acres in Range 18, which had forfeited for the 1941 taxes. In 1946 [exact date not shown] the State filed a confirmation suit to confirm its title to delinquent lands and mineral rights described therein [under Act 119, 1935, §§ 84-1315 — 84-1332, Ark. Stats. 1947], Case 6439, and included the oil, gas and minerals in the W% N¥]4 NE14, Sec. 19, Tp. 19 S, R 19 W.
August 22, 1946, Grayson and Foster, who claimed to be the owners of the surface and mineral rights in said 20 acre tract in Range 19, intervened naming Arrington and his wife as cross-defendants.
September 23, 1946, on the first day of the next term of Court, Arrington and wife appeared by their attorney Ezra Garner and filed a disclaimer as to any right, title or interest in the property claimed by Gray-son and Foster in Range 19. On the same day a decree was entered finding that Grayson and Foster owned the oil, gas and minerals in the 20 acres described as W% NW% NE%, Sec. 19, Tp. 19 S, R 19 W, and that on October 30, 1945, Arrington had obtained a deed from the State Land Commissioner based on a purported sale of part of said lands in Bange 19, for taxes of 1941, that said deed was void for the reason that all taxes had been paid in Bange 19 and had not forfeited; that the complaint filed by the State in so far as it affected said land in Bange 19 should be dismissed and it was decreed that said tax deed be cancelled and the title to the oil, gas and minerals be quieted in Grayson and Foster. The court then ordered that Grayson and Foster recover from Arrington all costs expended by them. It appears that Arrington, appellee, was without knowledge of this decree.
Execution was issued by appellants on the decree for costs, levy was made on the mineral rights of Arrington in the 20 acre tract located in Bange 18 for the purpose of satisfying the judgment and the property was sold by the Sheriff to the said Grayson for $36 and deed executed to him. From the time appellee first obtained title to the 20 acres in Bange 18, up to and including 1953, he paid all taxes charged thereon. On a trial of the present suit the trial court found that the judgment against Arrington in favor of Grayson and Foster in the confirmation suit for costs was void and without effect; that the Sheriff’s deed to Grayson for minerals in the 20 acre tract in Bange 18 constituted a cloud on Arrington’s title; decreed that the deed be can-celled and title quieted in Arrington. For reversal appellants list these three points: “First, that the judgment for costs in the confirmation suit was not void; second, that the present suit constitutes a collateral attack on the confirmation decree of September 23, 1946; and third, that the judgment for costs in the confirmation suit was within the discretion of the chancellor.”
Material facts appear not to be in dispute. After a careful review of the entire record we have concluded that the findings of the Chancellor were not against the preponderance of the evidence and, therefore, that the decree must be affirmed.
The confirmation suit was instituted pursuant to the provisions of Act 119 of 1935 as amended, [§§ 84-1315— 84-1332 inch, Ark. Stats. 1947] and was based thereon. Grayson and Foster intervened in that suit as provided in § 84-1322. Section 84-1327 above provides: “Court costs and the publication fees for the notice of such confirmation suit shall hereafter be paid from the amounts received by the State for the confirmation of title of all lands certified to the State for non-payment of taxes.”
Section 84-1329 provides: “All costs and fees due and payable hereunder may be paid when proof is made that the services for which the payment is made have been fully performed.”
Section 84-1330 provides: “The State Land Commissioner shall hereafter, upon proper application therefor, refund the confirmation fees paid by any person, firm, corporation, association or trustee where the title to state lands have failed.”
Since the above confirmation statute provides the specific method for the payment of costs in all confirmation suits in which the State seeks to establish its title, the trial court was without authority or power to disregard the statute and adjudge the costs on the intervention against appellee and that part of the judgment, assessing the costs against appellee, was therefore void because it was beyond the power of the court to make. Section 84-1327 above, as indicated, expressly provides that all court costs incurred in such confirmation proceedings shall be paid from the amounts received by the State for the confirmation of title of all lands certified to the State for non-payment of taxes, and directed the Land Commissioner to refund costs paid by any person where the State’s title has failed.
The general statute, in effect, allowing costs to be assessed by the trial court in the exercising of its sound discretion, § 27-2308, Ark. Stats. 1947, relied upon strongly by appellant, has no application here where the court is clearly exercising special statutory power and the measure of the court’s authority is the statute itself. Since the statute clearly provides the method for paying costs in confirmation suits, the court was without authority to disregard the statute and adjudge costs on the intervention against appellee. The rule of the law appears to be well settled that costs are a creature of the statute and can only be taxed by statutory authority: “We have often held that the allowance of costs is purely statutory, since at common law neither party is entitled to recover his costs.” Arkansas State Game & Fish Commission v. Kizer, et al., 222 Ark. 673, 262 S. W. 2d 265, 38 A. L. R. 2d 1372.
“A judgment is void when the court proceeds without authority and in a manner forbidden by law with respect to the matter being adjudicated, although it may have jurisdiction of the parties and of the subject matter,” Soper v. Foster, 244 Ky. 658, 51 S. W. 2d 929.
“Where the court, as here, is exercising special statutory powers, the measure of its authority is the statute itself; and a judgment or order in excess of the power thereby conferred is null and void. In such a case even though the court may have jurisdiction of the general subject matter and of the parties, an adjudication with reference thereto which is not within the powers granted to it is coram non judice,” Aetna Cas. & S. Co. v. Bd. of Suprvs., 160 Va. 11, 168 S. E. 617, 626.
It is true, as appellant asserts, that Grayson and Foster intervened in the confirmation suit but this intervention and cross-complaint was not an independent action but was ancillary to the State’s confirmation suit. “Intervention is not an independent proceeding, but an ancillary and. supplemental one which, in the nature of things; unless otherwise provided for by legislation, must be in subordination to the main proceeding, and it may be laid down as a general rule that an intervener is limited to the field of litigation open to the original parties. . . . ” 39 Am. Jur., § 79, p. 950.
Here Grayson and Foster intervened and cross-complained [§ 84-1322 above] and claimed to own the minerals in the tract of land in Range 19, in which they made Arrington and wife cross-defendants. This intervention and cross-complaint was ancillary to the confirmation suit and was in no sense a new action. It is true that the present suit constitutes a collateral attack, however, since we hold that the decree for costs in the confirmation suit, and the Sheriff’s deed made pursuant to the execution sale, were void, the court lacked authority and the power to make the decree and was subject to collateral attack. Lambert v. Reeves, 194 Ark. 1109, 110 S. W. 2d 503: “It is furthermore contended that this is a collateral attack upon the decree of confirmation. Even so, if the confirmation decree is void, in so far as it attempts to confirm a tax sale that is void for the defect above mentioned, then it is open to collateral attack, as a void judgment may be attacked collaterally.”
The decree is affirmed.
Justice McFaddin not participating.
Justices Millwee and Smith dissent. | [
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Lee Seamster, Cbief Justice.
On information, appellant was charged with the crime of arson. It was alleged that appellant did unlawfully, maliciously and feloniously set fire to and cause to be burned a nursing home, the property of Mrs. Jewell Massengill, located at 803 East Division Street in the City of Hope, Arkansas. Upon trial in the Hempstead Circuit Court appellant was convicted of the crime of arson and punishment was fixed at two years in the State Penitentiary. From the judgment on this verdict comes this appeal.
The appellant lists three points for reversal of the trial court’s verdict, they are: (1) insufficiency of the evidence; (2) the statement of the court to the jury with respect to suspended sentence; and, (3) the court grossly abused its discretion in not suspending sentence in keeping with its statement to the jury.
Initially, the appellant contends there is insufficient corroborative evidence to sustain his conviction of the crime of arson. He alleges that the testimony of record, when given its strongest force for the State, is only sufficient to raise a suspicion of guilt. It is further alleged that the testimony is as consistent with appellant’s innocence as with his guilt and, therefore, is not sufficient corroboration of the accomplices.
In this case, the State relied heavily upon the testimony of the accomplices. They were, Mrs. Jewell Massengill, the owner of the nursing home that was destroyed by fire, her son Bob and Sam Sampson, an employee of Mrs. Massengill’s.
Mrs. Jewell Massengill testified as follows: that she and appellant discussed the burning of her nursing home sometime in September of 1954, when he came to hex-home in response to her request, and that appellant said he and his company were in that business; that appellant told her that he would do the job for a price of $3,500— $750 of this amount to be paid in advance as a down payment ; that she saw appellant several times after the first meeting and upon inquiry she was told by appellant that she could take some of the fuimiture out of the house before the burning; that she later took some of the furniture out of the nursing home and stored it at Prescott, Arkansas; that she went to Texarkana, Ai’kansas, with the appellant to look at some buildings that had been burned, to prove to her that it could be done; that she and appellant made a trip to Texarkana about two or three weeks before the fire, they looked at a tourist court; that she issued a $750 check, payable to cash, cashed it at First National Bank of Hope and gave the money to the appellant. She also testified that she had in force $25,000 worth of fire insurance on the nursing-home and contents, which she had obtained from Leonard Ellis, and she purchased an additional $15,000 fire insurance policy from the appellant on the home and contents shortly before the fire.
Bob Massengill testified to the following: that he was the son of Mrs. Jewell Massengill and that he knew about the storage of his mother’s furniture in Mrs. Dudney’s place in Prescott, Arkansas; that he and his brother-in-law moved said furniture to Weatherford, Texas; that Sam Sampson helped them move the furniture and that the furniture was moved at night; that he knew about the fire and the reason for hiding the furniture.
Sam Sampson, an employee of Mrs. Massengill’s, testified to the following: that he took the furniture to Mrs. Dudney’s place in Prescott, Arkansas; that he had made a confession to police officers to the effect that he knew about the fire and that he was under indictment and was awaiting trial; that he recognized the appellant and that he had seen the appellant several times in the past when he was visiting Mrs. Massengill at her home.
Mrs. Callie Dudney, a witness, testified to- the following: that Mrs. Massengill stored some of her household goods in her house shortly before the fire and that appellant visited her home about three times after the fire; that at one time when shown the household goods of Mrs. Massengill’s, he stated, “I told her she could move some of it, but I didn’t tell her she could move all of it ”; that appellant said that he thought she had better sense than to move that much; that after the fire the appellant returned to have her sign a statement that his lawyer had prepared, when she refused he returned again at a later date to try to secure from her a written statement, in her own words, to the effect that the appellant had nothing to do with the fire. She also testified that appellant in the past had tried to sell her a fire insurance policy and a box of matches; that she went to Texarkana with the appellant and Mrs. Massengill to look at a tourist court which Mrs. Massengill wanted her to operate if she bought it, hut she told her that she couldn’t because of her own business.
Mr. Herman Morris, a witness, testified to the following : that he owned and operated the Morris Motel, a tourist court on East 9th Street in Texarkana; that the appellant and two women were in his place of business in October, 1954, and the appellant held himself out as a prospective buyer for the Motel; that he recognized Mrs. Massengill as one of the women and that she was going to help appellant buy the Motel or was interested in forming a partnership with appellant for the purchase of the Motel; that he told them that he wanted $75,000 for the Motel — $35,000 of this sum as a down payment.
Mrs. Herman Morris testified that appellant was at the Motel about September 22, 1954, and said that he liked the place and was going to try to make a deal for the purchase of it. She also stated that she saw appellant and the two women in the Motel in October, 1954, when they talked to her husband.
Lyle McMahan, a neighbor of the appellant, testified that before the fire the appellant tried to sell him an insurance policy on some of his trucks and that he replied that he already had them insured for more than they were worth; that when appellant told him that he could get a man to burn the trucks, he replied that he was not interested. He further testified that appellant saw him some two or three days later and asked him if he had changed his mind, he stated that he had not changed his mind.
Mr. Leonard Ellis, a witness, testified that the fair market value of the nursing home before the fire was $18,000 and the contents were worth about $10,000.
The appellant admitted selling the additional insurance to Mrs. Massengill on the nursing home before the fire and also admitted that he did not inform the insurance adjustor about the household goods that were stored in Prescott.
We think there is sufficient corroboration of the accomplices’ testimony to sustain the conviction. The rule is laid down in Casteel v. State, 205 Ark. 82, 167 S. W. 2d 634, as follows: “This Court in the recent case of Fleeman and Williams v. State, 204 Ark. 772, 165 S. W. 2d 62, with reference to this section of the Statute, reiterates the long established rule in this language: ‘The rule in this State is that the corroborating evidence need only tend to connect the defendant with the commission of the offense, and not that such evidence of itself be sufficient, and where there is substantial corroborating evidence tending to connect the defendant with the offense, its sufficiency is a question for the jury, together with that of the accomplice. Middleton v. State, 162 Ark. 530, 258 S. W. 995; Mullen v. State, 193 Ark. 648, 102 S. W. 2d 82; Smith v. State, 199 Ark. 900, 136 S. W. 2d 673; McDougal v. State, 202 Ark. 936, 154 S. W. 2d 810.’ See also, Powell v. State, 177 Ark. 938, 9 S. W. 2d 583.”
The appellant’s objection to the Court’s instructions to the jury with reference to suspended sentence is based upon the following statements:
“BY THE COURT: You want to know if you have authority to recommend a suspended sentence; I will answer that, members of the jury, this way: You certainly have the authority. I would, however, caution you that no juror should interpret that to mean that you are being encouraged to compromise on the question of guilt or innocence. The question of a man’s guilt or innocence is based solely and exclusively upon the law given you by the Court and the evidence gleaned from the witness stand. Does that answer your question, or do you have any additional questions?
“MR. KENT: If anybody’s got a question, speak up.
“MR. ATKINS: If the Court please, I would like, as the attorney for the defendant, to ask the Court to further instruct the jury that by recommending the suspended sentence, that the Court is in no way bound to give a suspended sentence.
“BY THE COURT: Yes, the Court would not intentionally say anything at any step in this proceeding, and particularly now, to lead you to believe that the Court wants anybody to compromise their convictions, and please be advised that the Court is not bound by your recommendation, one way or the other. Thus far, I believe I have followed jury recommendations on matters of clemency, but the Court is not saying that it will or that it will not; the Court will simply say to you that you have a perfect right to make this recommendation. If you so desire, the Court will be glad to receive it.”
We feel that the above italicized statements are objectionable. The only statement a Court should make to a jury about a suspended sentence is: That the jury has the right to recommend a suspended sentence for any defendant they convict, if they determine such recommendation is justified. That the Court is not bound by such recommendation to suspend the sentence and may or may not do so. The whole question as to whether a sentence of a convicted person will be suspended, or not, is to be finally determined by the Court trying the case. No statement should be made by the Court that might tend to lead the jury to believe a suspended sentence would be granted if requested.
No objections were made by the appellant at the time the statements were made. This Court in the case of Pendleton v. State, 211 Ark. 1054, 204 S. W. 2d 559, and in Filtingberger v. State, 216 Ark. 754, 227 S. W. 2d 443, upheld the trial court in similar cases where no objections were made in the trial court. The Ark. Statutes, § 43-2813, 1947, requires the parole officer, when requested by the Circuit Judge — of any Judicial Circuit, to investigate the past history of any persons applying for suspended sentence or other clemency and to make available to the Court his findings.
Judgment affirmed.
Justice George Rose Smith concurs. | [
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George Rose Smith, J.
This is an appeal from a probate court order holding that the appellant’s claim against the estate of Ella Hampton, deceased, is barred by the three-year statute of limitations, which applies to oral contracts. Ark. Stats. 1947, § 37-206. It is contended by the appellant that the case is governed by the five-year statute, applicable to written contracts. Ark. Stats., § 37-209.
Early in 1949 the appellant lent $405 to Ella Hampton upon the borrower’s oral promise to repay the money in the fall of that year. Ella Hampton died, without having repaid the debt, on December 16, 1952, which was more than three years after the last day of fall (November 30), 1949. After the appellee’s appointment in 1954 as administrator of the decedent’s estate the appellant filed her claim for $405 and accrued interest. The claim and its supporting affidavit refer only to the oral loan agreement between the parties. Upon the face of the pleadings the trial court was undoubtedly correct in applying the three-year statute.
In the course of the trial, however, the appellant testified that Ella Hampton, as security for the loan, had endorsed and pledged an overdue rent note for $450 that had been executed by Steve Hellems as maker to Ella as payee. This note was received in evidence without objection. It is now suggested that the appellant’s claim was thereby converted to a demand upon a written contract or that the court should have treated the original claim as having been amended to conform to the proof.
Neither suggestion is sound. Ella Hampton was liable during her lifetime upon two separate contracts — the oral agreement to repay the $405 loan and the written endorsement of the $450 note. The appellant, entitled to but one satisfaction, elected to base her claim upon the oral obligation. Her proof is directed to that issue rather than to the materially different facts that would be needed to establish Ella Hampton’s secondary liability as the endorser of Steve Hellems’ note. The note was properly admitted in evidence, as it tended to corroborate the appellant’s assertion that she had lent money to the decedent. But it is plain that the borrower’s act of endorsing a past-dne note for $450 did not have the effect of reducing to writing her oral promise to repay a smaller sum in the fall of the year.
Nor, for at least two reasons, would the court have been justified in treating the claim as having been amended by the proof. In the first place, the amendment would have asserted a new cause of action, upon a different contract. "We have held that it is reversible error for the trial court to permit such an amendment even when it is requested to do so. Patrick v. Whitely, 75 Ark. 465, 87 S. W. 1179. There would be still less justification for the court’s commission of the same error upon its own motion.
Second, it is essential that a claim against an estate be supported by an affidavit in statutory form. Belatively slight deviations from the statutory language have been held fatal to the validity of the claim. Superior Oil & Gas Co. v. Sudbury, 146 Ark. 319, 225 S. W. 609; Rinehart v. Wheeler, 168 Ark. 251, 270 S. W. 537. The mere introduction of the Hellems note in evidence did not and could not bring into existence the affidavit that is vital to the assertion of a claim upon that note. Whether the probate court could, without infringing upon the doctrine of election of remedies, have permitted the appellant to withdraw her claim and substitute a demand founded upon the Hellems note, is a question not presented by this record. It is enough to say that the principle of treating the pleadings as amended by the proof cannot supply the mandatory requirement that a claim upon a written instrument be supported by proper verification.
Affirmed.
Holt, J., dissents. | [
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Lee Seamster, Chief Justice.
The appellant, Harold Oliver, was tried in Union Circuit Court, 1st division, under an information charging him with the crime of murder in the first degree, alleged to have been committed by shooting and killing one H. H. Parks. A verdict was returned finding him guilty of murder in the second degree, and fixing his punishment at twenty-one years in the penitentiary, and from the judgment pronounced on that verdict is this appeal.
For reversal of the judgment, the appellant lists the following points: (1) the evidence is insufficient to support the verdict; (2) the court erred in giving State’s instruction No. 7%; and, (3) the court erred in permitting the State to introduce the State’s exhibit No. 7; also State’s exhibits Nos. 8, 9, 3, 2, 12 and 10.
The evidence was to the following effect: On March 26, 1955, Harold Oliver, the appellant, along with Gene Jerry, Paul Martin and Harry Stevenson, were playing-dominoes and drinking beer in the store of PI. H. Parks, the victim. After playing four games, Martin had to leave, breaking up the domino game. Gene Jerry then bought a beer for himself, Oliver and Stevenson. Oliver then sat down at the counter directly in front of the stores cash register. Plarry Stevenson was sitting on the next stool beside Oliver while Parks was standing behind the counter. J. C. Ward then entered the store and after inquiry Ward told Oliver that he would sell him some fish for twenty-five (25) cents per pound. Parks then said, “That is a devil of a note, me trying to sell them for fifty (50) cents dressed and you selling them (fish) for twenty-five (25) cents in tlie rough..” Oliver said, “Well, you don’t blame me for trying to buy them as cheap as I can, do you?’’ Parks answered, ‘‘No.’’ Shortly thereafter, Felton Haynes entered the store and Parks made an inquiry as to why his son-in-law had not brought him some fish as he had promised and Oliver interjected, ‘ ‘ A man can’t always do what he says about fish. ’ ’ Parks told Oliver, “I wasn’t talking to you, and it is not any of your business.” After Haynes left, Parks told Oliver that he should tend to his own business and not butt into his conversations with other people. Oliver then cursed Parks, who replied, “there was not but one man that ever called me that and got away with it and that was my daddy and he held a gun on me.” Oliver reached up and removed a “no credit” sign from the top of the cash register. Parks then reached for a drawer behind the cash register and Oliver stood up, pulled a pistol and fired twice at Parks. Parks then ran to the end of the counter and Oliver moved in the same direction and emptied his gun into Parks. The evidence does not reflect whether Parks died immediately or a few minutes thereafter. Two witnesses, Harry F. Stevenson and Grene Jerry, testified that they did not see a gun in-Parks’ hand at anytime. Deputy Sheriff Kinard found only one pistol in the store and that one was on the floor under the counter, behind a five-gallon can.
Appellant, Harold Oliver, testified in his own beha.ll. He admitted that he shot and killed H. H. Parks but earnestly insists that he acted in self-defense, since he was under the belief that the deceased was going to either kill him or do him great bodily harm and injury. The appellant insists that the deceased removed a pistol from the drawer under the counter.
We do not attempt to detail all of the evidence. It suffices to say that after considering all of the evidence, and when we give to it, as we must, its strongest probative force in favor of the State, the evidence was ample to warrant the jury’s verdict of murder in the second degree. This Court has many times held that it would give the testimony tending to support the verdict its highest probative value. See Powell v. State, 213 Ark. 442, 210 S. W. 2d 909; Everett v. State, 213 Ark. 470, 210 S. W. 2d 918.
In his brief, the appellant alleges that the court erred in giving State’s instruction No. 7%. The appellant fails to list this assignment in his motion for a new trial, therefore, this court will not take this assignment under consideration.
Finally, the appellant alleges that the court erred in permitting the State to introduce State’s exhibits Nos. 2, 3, 7, 8; 9, 10 and 12. These exhibits were photographs of the body of the deceased, the scene of the shooting and a color picture showing the spot where the deceased fell, after he was mortally wounded.
A careful review of the record reveals that State’s exhibits Nos. 3 and 10 were ruled out by the trial court. The State withdrew its exhibit No. 9. Therefore, there is no merit as to appellant’s objection to these three exhibits.
Exhibits 7 and 12 are photographs of the scene of the killing. These pictures were introduced only after proper foundation was laid showing that they were properly taken after the killing and accurately show the condition of the premises with reference to the cash register, the “no credit” sign and the blood stains showing where the deceased fell after the shooting. Exhibit No. 8 is a picture showing two wounds in the back of the deceased’s body; this picture was taken at the morgue. Exhibit No. 2 is a picture of the front of the deceased’s body, which was taken at the scene of the shooting, after the body had been placed on a stretcher. The photographs of the deceased’s body showing the bullet wounds are admissible to show the area of injury to the deceased.
The admission and relevancy of photographs must necessarily rest largely in the discretion of the trial judge. We find no abuse of discretion in the admission of photographs in the instant case. Admissibility of photographs does not depend upon whether the objects they portray could be described in words, but rather on wheth er it would be useful to enable tbe witness better to describe and tbe jury better to understand, tbe testimony concerned. Where they are otherwise properly admitted, it is not a valid objection to tbe admissibility of photographs that they tend to prejudice the jury. Competent and material evidence should not be excluded merely because it may have a tendency to cause an influence beyond the strict limits for which it is admissible.
At the conclusion of all the testimony in the case, the trial court gave a number of 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; but rather made a general objection to all the instructions. Appellant’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. Owen v. State, 86 Ark. 317, 111 S. W. 466; Tiner v. State, 109 Ark. 138, 158 S. W. 1087; Massey v. State, 207 Ark. 675, 182 S. W. 2d 671. As indicated, we think none of the instructions given by the trial court were erroneous.
We have examined other assignments in the motion for a new trial and find no prejudicial error in the record. The judgment is, therefore, affirmed. | [
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Smith, J.
Appellants, Lonis and Elbert Blake, who are father and son, have prosecuted this appeal from the judgment of the Ouachita Circuit Court sentencing them to death for the murder of Brad Polk. The testimony on the part of the State was to the following effect. Louis Blake was a tenant on the farm of Polk, and they had disagreed about Blake’s account and had been unable to effect a settlement. Blake had stated that he would not leave the farm where he lived until a settlement had been effected, and that he would kill Polk, if necessary, to secure a settlement. This threat was made in the presence of Walter Jones about 10:30 at the People’s Bank in Stephens, Arkansas, on the morning of the day before the killing. Louis Blake owned a pistol, which he had been known to carry. Polk went to Blake’s home at about noon on Christmas Day to effect a settlement. This conclusion was arrived at from the following facts. When deceased was found after he had been shot, it was discovered that he had been shot in his left eye. Deceased’s glasses were found upon his breast with the left lens shot out. Polk used his glasses only when reading, and an envelope was found in his pocket covered with figures. The Blakes were in their home when the fatal shot was fired. The elder Blake fired four shots. His son fired only once, but this was the fatal shot, and it struck Polk while the latter was standing near the porch on the outside.
Louis Blake denied making the threat about which the witness Jones testified, and two other witnesses testified that at the time when the alleged threat was made Louis Blake was not°at the bank but was at work on the house of a Mr. Gfuttry. This, however, was a question of fact for the jury.
Louis Blake admitted that he and Polk had disagreed about their settlement.
This testimony, standing alone, might, with the inferences reasonably dedncible therefrom, support the finding that the Blakes had killed Polk after deliberation and premeditation, and were therefore guilty of murder in the first degree as found by the jury. But it does not stand alone. There are certain other facts which cannot he ignored, although we may say that the jury had the right to disbelieve the testimony of the defendants as to the circumstances under which the fatal shot was fired, according to which the killing occurred in their necessary self-defense and in defense of their home and the protection of its inmates from a murderous assault.
After the shooting, young Blake ran away, but he was later arrested. The older Blake went at once to the home of the deceased and informed deceased’s daughter that Elbert Blake had shot her father, and he went with her for a doctor. The doctor — Dr. Sanders — went at once to the scene of the killing. Polk was dead when he arrived, having been killed instantly. Deceased’s glasses were lying across his chest, they having apparently fallen off his face. Deceased had a pint of liquor in his left hip pocket, but none of it had been consumed. Other witnesses testified that Polk'had not been drinking that day. Deceased’s pistol was found lying near his feet.
R. L. Elliott, a deputy sheriff who investigated the killing and arrested Louis Blake, arrived at the scene of the killing a short time after it had occurred. He and others searched the house and found two pistols, one of .38 caliber, the other .45 caliber Colt’s revolver. There were four empty shells in the .38 caliber pistol and one in the .45. In regard to bullet holes found in the Blakes’ home, Elliott testified as follows: ‘£ Q. Did you examine the house to ascertain whether or not any bullet holes were in it? A. Yes, sir. Q. What did you find? A. There were three bullet holes through .the wall and one bullet was taken about the door, it went in straight, and there was a bullet fired from the outside that went through the window sash and through a 2 x 4 and then stuck into the wall. There was a bullet hole up over the door, kind o’ at the corner of the door facing. Q. What was your statement with reference to the window? A. ' That was fired from the door, whoever fired it was on the outside of the door. Q. The bullet that went through the sash was fired from the outside? A. Yes, sir, and went to the corner of the building on the inside. ’ ’
The sheriff, who also examined the house in which the Blakes lived, testified that he found where three shots had been fired from the inside of the house through the wall thereof and one through the window from the inside, hut he also found one which had been fired from the outside, there being one or two shots over the door. Louis Blake, when first arrested, denied that he had fired any shot, but later admitted that he had shot three or four times through the wall of the house.
A witness who was hunting near the Blakes’ home testified that he heard the report of the guns, and that all of the shots were fired within a short time of each other, and he and other hunters with him supposed that other hunters were shooting birds.
We have concluded that, while this testimony is sufficient to support a verdict of murder in the second degree, it is not sufficient to' support a verdict of murder in the first degree. We think there is' lacking that deliberation and premeditation required to constitute the higher degree of murder. The appellants were in their home at the time of the shooting, and, while the jury evidently did not believe their testimony that deceased began the shooting, it is certain that he participated in it. Guests present in appellants’ home to partake of a Christmas dinner, then about ready to be served, testified that when they saw deceased coming to appellants’ home they thought there would be trouble, and they left hurriedly, and that immediately after they had left the house through a rear door the shooting began, but they did not know who had commenced it.
In numerous cases this court has announced the power of the court to reduce' a punishment imposed upon the verdict of a jury. One of the leading cases is that of Routt v. State, 61 Ark. 594, 34 S. W. 262, in which a defendant had been convicted of robbing one Morgan of several hundred dollars. The court was of the opinion that, while the testimony established the fact that Boutt had stolen Morgan’s money, it did not suffice to establish the crime of robbery. In discussing the power of the court to reverse the judgment of the trial court convicting appellant of robbery and to reduce the punishment to that appropriate for grand larceny, the court pointed out that “the charge of robbery made against the defendant includes larceny,” and the judgment of imprisonment for robbery was set aside, and the case remanded with directions to the circuit court to sentence the prisoner for grand larceny.
In discussing this power of the court, Justice Ero-eiok there said: “Our statute provides that ‘the Supreme Court may reverse, affirm or modify the judgment or order appealed from, in whole or in part, and as to any or all parties, and when the judgment or order has been reversed, the Supreme Court may remand or dismiss the cause, and enter such judgment upon the 'record as it may in its discretion deem just.’ Sand. & H. Digest § 1064. We have twice held that this statute applies to judgments in criminal as well as civil cases. Simpson v. State, 56 Ark. 19, 19 S. W. 99; Brown v. State, 34 Ark. 232.”
It was there also said: “We have said that the evidence does not sustain the charge of robbery, but that it does clearly make out a case of grand larceny. The fact that the defendant was found guilty of a greater crime than was warranted by the evidence does not compel us to set the entire conviction aside when it is in part clearly correct. It was to avoid such an unreasonable and costly procedure that'the statute above referred to was enacted. The defendant in this case was sentenced to be imprisoned for ten years, when the maximum punishment for larceny of money is imprisonment for five years. Under the statute and the authorities cited above, we will relieve the defendant from the ex cessive judgment, of which he has a right to complain, hut affirm the conviction to the extent that it seems clearly right. The judgment of imprisonment for robbery is set aside, and the cause remanded, with an order that the circuit court sentence the prisoner for grand larceny. ’ ’
This power has frequently been exercised by this court in subsequent cases, and, while the practice usually followed is to reverse the judgment on account of the excessive punishment, unless the Attorney General will consent that the trial court impose a lower sentence, that practice has not always been followed. The court, when it is thought proper to do so, has itself fixed the reduced punishment.
One of the first cases in which this was done was that of Howard v. State, 82 Ark. 97, 100 S. W. 756. The headnote in that case reads as follows: “A conviction of murder in the first degree will be reduced to the second degree where the evidence shows that the killing was done with a deadly weapon but without deliberation or premeditation.” The court there said: “We will set aside the judgment for murder in the first degree, and affirm it for murder in the second degree, and will assess the punishment at imprisonment in the penitentiary as provided by the statute.” The final judgment of this court in that case shows that the punishment imposed by this court, after reversing the death sentence, was imprisonment for twenty-one years, the highest punishment provided by law for murder in the second degree.
■Other cases in which this court has itself reduced the punishment are as follows: Williams v. State, 66 Ark. 264, 50 S. W. 517; Noble v. State, 75 Ark. 246, 87 S. W. 120; Petty v. State, 76 Ark. 515, 89 S. W. 465; Walker v. State, 91 Ark. 497, 121 S. W. 925; Quinn v. State, 114 Ark. 201, 169 S. W. 791; Trotter v. State, 148 Ark. 466, 231 S. W. 177; Williams v. State, 183 Ark. 870, 39 S. W. (2d) 295; Stanley v. State, 183 Ark. 1093, 43 S. W. (2d) 415.
The judgment of the court below sentencing the appellants to death will therefore be reversed, and the judgment will be modified by reducing tbeir conviction to that of murder in the second degree, and a sentence of twenty-one years upon each of them is hereby imposed. | [
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Smith, J.
There appears to be no substantial conflict in the testimony heard in the court below in the decision of this case in that court. The facts were as follows: Castellaw Brothers are merchants at Quitman, Arkansas, and are also engaged in buying cotton, which they sold at Conway, a city thirty-five miles distant from their place of business. The transaction out of which this litigation arose was similar to a number of others, and may be briefly related.
On November 20, 1930, Castellaw Brothers sent a truck, carrying six bales of cotton, from Quitman to be sold at Conway. An agent of Anderson Clayton Cotton Company at Conway bought the cotton, and gave the truck driver a price ticket, which the latter carried, with the cotton, to the compress at Conway, where the cotton was delivered and weighed and a compress receipt issued therefor. The driver took the price ticket and the compress receipt to the Faulkner County Bank & Trust Company in Conway, and that bank paid for the cotton. The driver of the truck had the option to receive either money or a check from the bank, but, pursuant to the direction of his employers, he received a cashier’s check for $319.96, the price of the cotton. Upon his return to Quitman, the truck driver delivered the check to his employers, who indorsed the check and deposited it for collection for their account with a bank at Quitman. "When the bank at Conway had paid for enough, cotton in this manner to load a railroad car, the cotton would be shipped to Anderson Clayton Cotton Company, with draft covering all the cotton in the car attached to the bill of lading. This draft was not for any particular cotton, but covered all the cotton in the car.
The owners of the cotton were not required to await the cashing of the draft accompanying the bill of lading, but had the option to receive cash or a cashier’s check, and, as has been said, the six bales here involved were paid for with a cashier’s check. The bank at Quitman forwarded the check to its Little Bock correspondent for collection, but before the collection had been completed in the usual manner the Conway bank closed its doors. The Little Bock bank returned the check to the bank at Quitman, and that bank charged the check back to the account of Castellaw Brothers. This check was filed with the Deputy Bank Commissioner, who was winding up the affairs of the bank at Conway, as a preferred claim. The chancellor denied the claim of preference, and allowed it as a general claim against the bank, from which order is this appeal.
The case of Taylor v. Dermott Grocery & Commission Co., 185 Ark. 7, 45 S. W. (2d) 23, is decisive of this case. The headnote in that case reads as follows: “The payee of a depositor’s check, indorsing it and accepting a casbier’s check from the drawee bank which was not paid on account of the failure of the bank, held not entitled to preference under Acts 1927, No. 107.”
In the case cited, the bank honored the check of a depositor, but, instead of paying in money, payment was made with a cashier’s check. Here the Conway bank honored the price ticket and the compress receipt just as it would have done a check pursuant to a prior understanding with Anderson Clayton Company to that effect. It did not pay in money, as it would have done if requested, but paid with a cashier’s check. This check was not deposited with the Conway bank, but upon its acceptance the payee became a mere creditor of the bank, the amount of the indebtedness being evidenced by the check. As was said in the Taylor v. Dermott Gro. & Com. Co. case, supra: “No new funds were deposited in the bank, but the bank simply shifted the liability from one creditor, Townsend, to another creditor, appellee.”
So here there was no accession to the funds of the bank, which charged the amount of the cashier’s check, which it had issued to Castellaw Brothers, to the account of Anderson Clayton Cotton Company.
The decree of the court below, holding that Castel-law Brothers were creditors only, is correct, and it is therefore affirmed. | [
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McCulloch, C. J.
This is an action instituted by the plaintiff Harrison against his employer to recover wages alleged to be due under a contract which the defendant had broken. The plaintiff alleges that he was employed by defendant Moline Lumber Company to work for the latter as woods foreman for a period of one year at a salary of $1,800.00 a year, payable monthly, and that after working for the defendant for something over three months he was discharged without cause. Plaintiff further alleges that for the greater portion of the unexpired period of the contract he was unable to secure employment elsewhere, and that by reason of the discharge he sustained damages to the extent of the unpaid wages or salary for the remainder of the period. Plaintiff sued to recover the sum of $1,240.00, and on the trial of the case the jury rendered a verdict in favor of the plaintiff for the sum of $749.00. The evidence shows that plaintiff was unable to secure employment for the whole of the remaining period of the alleged contract, but that he did secure employment for a portion of the time, and it is manifest that the jury only allowed for the time during which the plaintiff was actually out of employment. The .only question involved in this appeal is whether or not the evidence is sufficient to sustain the finding that there was a contract of employment entered into between plaintiff and defendant to cover a period of one year. There is very little conflict in the testimony on the material points so far as the case is presented here. Defendant, in dealing with plaintiff, was represented by its manager, Mr. W. R. Day, and on a certain day in June, 1914, plaintiff talked with Mr. Day over the telephone from a lumber camp, with regard to employment as woods foreman. Plaintiff’s version of the contract was that after a few preliminary remarks passing between them concerning the matter of the work to be done he asked Day “how much the job paid” and that Day replied “the job pays $1,800.00 a year.” Day testified that during the telephone conversation described, plaintiff asked him what the job paid, and he replied as follows: “Well, we paid Mr. Goss $1,900.00 a year and I will pay you $1,800.00, at the rate of $150.00 per month, and Mr. Harrison said that is satisfactory.” They agree that nothing else was ever said between them concerning the terms of the employment. It was agreed in the conversation referred to that plaintiff was to go to Malvern to see Mr. Day and look over the timber land to ascertain the character of the work and that he went up there to see Mr. Day about a week later and that they went out together to look over the ground, that nothing was said about the terms of the employment. Plaintiff went to work on the 8th of June, 1914, and after working until June 17, he received a note from Mr. Day in the following words:
“6-17-14.
Mr. Harrison:
You should have Mr. Lee to arrange div. of supt. and clerks salaries so as to include your salary at $150.00 per month. W. R. D.”
There is no proof of custom or usage with reference to the period of employment for this character of service, and we are left entirely to the somewhat indefinite words of the contract to determine whether or not it constituted a contract for a period of service for a year or whether it was merely an employment at will. The question is by no means free of doubt, and the authorities, though very numerous, are sharply conflicting. In a note to the case of Warden v. Hinds, 25 L. R. A. (N. S.) 529, the authorities on the subject are collated, and it is said that the conflict is such as to leave doubt as to which view is better supported. One line of cases holds that “a hiring at so much per year, month, or week is, in the absence of other circumstances controlling its duration, an indefinite hiring only, terminable at the will of either party”; whereas the other line of authorities holds to the view that where the matter of duration of a contract of employment is not specified in so many words, a hiring being at a specified rate per year, month or week imports a hiring for the full period named. The cases are carefully reviewed by the Supreme Court of Massachusetts in Maynard v. Royal Worcester Corset Co., 200 Mass. 1, and the weight of authority is declared to be in favor of the rule that a hiring at so much a year, month or week is, in the absence of any other consideration impairing the force of the circumstances, sufficient to sustain a finding that the hiring was for that period. There are many English as well as American cases sustaining that view, among which the following are cited: Emmens v. Elderton, 4 H. L. Cas. 624; Foxall v. International Land Credit Co., 16 L. T. (N. S.) 637; Buckingham v. Surrey & Hants Canal Co., 46 L. T. (N. S.) 885; Horn v. Western Land Association, 22 Minn. 233; Smith v. Theobald, 86 Ky. 141; Moss v. Decatur Land Improvement & Furnace Co., 93 Ala. 269; Chamberlain v. Detroit Stove Works, 103 Mich. 124; Kellogg v. Citizens Ins. Co., 94 Wis. 554; Norton v. Cowell, 65 Md. 359; Beach v. Mullin, 34 N. J. L. 344; Magarahan v. Wright, 83 Ga. 773.
That is, we think the best view of the matter, for where a unit of time is described in mentioning the compensation without any other reference to time it is fairly inferable that the parties intended to contract for that period of time. Of course, the terms thus specified are to some extent indefinite and may be controlled by the circumstances of any particular case, but in the absence of countervailing circumstances we think that a trial court or jury is warranted in construing the terms of the contract to be for a hiring for the unit of time specified in fixing the wages or salary. The language of the contract now before us is even stronger in that view than that used in some of the cases cited. In fact, we think that the testimony of Mr. Day, the defendant’s manager, makes out a stronger case than does the statement of the plaintiff himself, for he states the terms at $1,800.00 a year, and follows with the specifications “at the rate of $150.00 a month,” indicating that the period of hiring was to be for a year, but that the payments were to be made in monthly installments. It is earnestly insisted by counsel for defendants that two of the early decisions of this court place the court in line with authorities which hold to the view that a specification of the compensation for a certain period is not sufficient evidence of a contract to hire for that period. Wright v. Morris, 15 Ark. 444; Haney v. Caldwell, 35 Ark. 156. In the case first cited (Wright v. Morris) the contract was one for the hire of an overseer “to oversee for Wright that year at the rate of $500.00 per annum; that Trulove was to make a fair average crop, and if he failed to do this he' was to forfeit his wages.” This court said that the language used did not constitute a special contract for a definite time at a fixed price, but that it was a contract to oversee at the rate of $500.00; not for $500.00. Trulove was discharged before the crop was made and gathered, and the question was whether he was entitled to specified compensation of $500.00 for the year, or for the making of the crop, and this court held that there was no agreement as to the length of time Trulove was to serve, as the contract only fixed the rate instead of the period of time and that “it must necessarily have been intended that the engagement should continue until after the crop was made.” That case, therefore, has no application to the contract involved in the present case, nor is there any analogy between the facts of this case and those in Haney v. Caldwell, supra, where the contract of employment was evidenced by a letter in which Caldwell stated to Haney that “you are hereby employed to act as my engineer in connection with my contract for the completion of the Little Rock & Fort Smith Railroad, at a salary of $2,500.00 per annum.” Haney served for more than a year. The court held that this was not a contract for a definite time at a fixed price. The reason for that ruling is plain, for there was a specification of employment as engineer “in connection with my contract for the completion of the Little Rock & Fort Smith Railroad,” which shows that the employment was not for a year but merely at the rate per annum mentioned in the letter. We do not regard either of those cases as being against the views which we express in the present case. From this view of the matter the evidence was sufficient to sustain the finding, and, as that is the only grounds urged for the reversal, it follows that the judgment must be affirmed, and it is so ordered. | [
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Hart, J.
W. C. Green sued John F. McCullar before a justice of the peace to recover on a promissory note which had been transferred to him for a valuable consideration in the usual course of trade.
The justice found the defendant not liable on the note and the plaintiff appealed to the circuit court. In the circuit court there was again a verdict and judgment for the defendant and the plaintiff has appealed to this court. .The material facts are as follows:
On February 2, 1914', L. G. Riles, J. J. Watson and J. F. McCullar executed a promissory note to John Whitsett, or bearer for $59.50, due ten and one-half months after date with interest at the rate of ten per cent, per annum from date until paid. Whitsett transferred the note in the ordinary course of business to W. C. Green for a valuable consideration. The note was given by Riles and Watson to Whitsett for a shingle mill, and McCullar signed the note as surety. After the note had become due, McCullar had a conversation with Whitsett about the payment of the note. No preparations that he knew of had been made by either Watson or Riles to pay the note. Watson had left the country but Riles was still, there. The shingle mill for which-the note was given was also still there and in possession of Riles. McCullar told Whitsett that he wanted him to try to recover his money on the note. He said that he would no longer stand surety on the note. Whitsett told McCullar that he should not be hurt or put to trouble over it.
Subsequently Riles left the country. He left the mill, standing right where it was, which was about one-quarter of a mile from McCullar’s house, and took with Mm a cow and a yearling. TMs was the version of the matter testified to by McCullar. He did not speak of Riles having any other property except the shingle mill and cow and calf.
Whitsett testified that he did not at any time release McCullar from the payment of the note and that McCullar did not notify in writing or otherwise his intention to institute proceedings to collect the note.
In the case of Sims v. Everett, 113 Ark. 198, it was held that at common law, a surety could not compel the creditor to sue the principal debtor, and become discharged by the failure of the creditor to do so, and Kdrby’s Digest, sections 7921 and 7922, giving the surety that right, is in derogation of the common law and should be strictly construed. The court after reviewing and discussing the authorities on the question, said that the statute on the subject controls, and unless complied with, the surety is not discharged by mere inactivity on the part of the creditor or failure or refusal to sue the principal.
Professor Daniel states the rule as follows: “Mere delay and passivity of the creditor does not discharge a drawer or indorser, or other surety, even when the delay and subsequent insolvency. of the principal deprives him of all means of reimbursement, and unless authorized so to do by statute, he cannot, by request or notice, compel the creditor to sue the principal debtor.” Daniel on Negotiable Instruments, 6th ed., vol. 2, see. 1326, p. 1493. See also 3 Euling Case Law, sec. 604, p. 1274.
Under the facts of this case the court was wrong in holding that the defendant was not liable on the note. For that error the judgment will be reversed and the cause will be remanded for a new trial. | [
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Wood, J.
The indictment charges that Frank Roetzel “on the 22d day of December, 1899, in the county of White aforesaid, then and there unlawfully did catch fish with a net in the waters of this state, to-wit: Horseshoe lake, said fish not then and there being caught for family use, nor for a picnic.”
There was proof from which the jury might have found that defendant assisted in seining Horseshoe lake with a seine over 60 feet in length, and the meshes of which were less than 4 inches apart; that fish were taken from said lake; and that defendant took two of them home with him. There was evidence also to the effect that the meshes of the seine were 4 inches or over.
The court read to the jury the act of June 26, 1897, and gave the following instructions:
“1. The material allegations in the indictment are that the defendant, Frank Roetzel, in the county of White, on or about the time alleged in the indictment, or within one year next before the filing of the indictment, which was filed in this court on the 23d day of January, 1900, unlawfully caught fish, or aided and abetted or assented to the unlawful catching of fish, in Horseshoe lake.
“2. The first thing for the jury to determine is, did the defendant take fish from Horseshoe lake unlawfully, or aid or assist in doing so? The next question, did the defendant use a seine 60 feet in length? If you so find beyond a reasonable doubt, then the defendant would be guilty.
“3. Meshes 4 inches square applies to a lawful seine, and 60 feet is a lawful seine. Over that length is unlawful.
“4. The jury are instructed that one may use a seine not to exceed 60 feet in leugth, with meshes not less than 4 inches square, to catch fish for family use, or for picnics, or for stocking other waters or ponds.
“5. The jury are instructed that the use of a seine of more than 60 feet for taking or catching fish is unlawful without regard to the size of the meshes. To the giving of each of which instructions, the defendant excepted separately.”
The defendant asked, but the court refused, to instruct the jury, as follows:
“1. Before the defendant, Frank Roetzel, can be convicted of the offense charged in this indictment, it must appear to the jury from the testimony, beyond a reasonable doubt, that the defendant caught fish with a net in Horseshoe lake, in White county, Arkansas, not for family use or picnic, and that the net used by him was so made that the meshes of the net were less than 4 inches square, or that he was aiding or abetting in such fishing.”
“2. The court instructs the jury that it is not unlawful to catch fish in the waters of this state by use of a seine with meshes not less than 4 inches square.”
The first section of the act of 1897 is as follows: “No person shall be allowed to place, erect, or cause to be placed or erected, or maintained in any of the waters of this state, * * * any seine, net, etc., or by any such means to take or catch any fish in the waters of this .state. * * * Provided, further, it may be lawful to use a very small seine not to exceed 15 feet, for catching very small fish, usually called minnows, which may be thus caught to be used for bait or for stocking other waters with fish, but for no other purposes. * * * Provided, further, it shall not be unlawful for any person or persons to use a seine with meshes not less than 4 inches square in width, and any person using a seine with meshes less than 4 inches in width shall be guilty of a misdemeanor, and upon conviction shall be fined in any sum not less than twenty-five dollars nor more than fifty dollars, etc.* * * Provided, further, it shall not be unlawful for any person or persons to use a seine or net not exceeding 60 feet in length in any unnavigable stream or lake in this state to catch fish for family use, or for picnics, and not for sale,” etc.
The circuit court erred in its charge. It is not unlawful to use a seine of any length in any of the waters of this state to catch fish where the meshes of such seine are 4 or more inches square in width. One may use a seine not over 60 feet in length, regardless of the size of the meshes, in any unnavigable stream or lake to catch fish for family use, or for picnics, and not for sale. One may catch minnows to be used for bait or stocking other waters, but for no other purpose, with a seine not to exceed 15 feet in length.
The court should have granted appellant’s prayer for instruction numbered two.
Reversed and remanded for a new trial.
Battle and Hughes, JJ., not participating. | [
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McHaNey, J.
Appellee sued appellant for personal injuries sustained by him while in its employ, under the Federal Employers’ Liability Act, and recovered judgment against it in the sum of $5,000.
At the conclusion of the testimony appellant requested the court to direct a verdict in its favor, which was refused, and this assignment of error is now urged for a reversal of the case on two grounds; first, that the undisputed evidence shows that appellee assumed the risk; and, second, that it also shows appellee was not engaged in interstate commerce at the time of the injury, and that therefore the Federal law has no application in this suit.
We assume, for the purpose of this opinion, that appellee was engaged in interstate commerce, and it becomes unnecessary to decide whether he was or not, because of the disposition we make of the other assignment.
The facts, briefly stated, are as follows: Appellee was in the employ of appellant as a stationary engineer at McG-ehee, Arkansas. He operated a stationary engine used to pump water into water tanks and crude oil into oil tanks, to be used in the operation of locomotive engines in both State and interstate commerce. It was a part of bis duty to unload crude oil which was shipped into Mc-Gehee in tank cars. When a shipment of oil was received for unloading, the switching crew would spot the car so it could he unloaded into the underground tank by gravity. When the car was spotted over this underground tank, it was appellee’s duty to go on top of the tank car, unscrew the cap in the top of the dome, open the valves, and the oil would then run out by gravity into the underground tank, from which it would he pumped out by him into the storage tank. As above stated, such oil was used to operate locomotives on the road, as well as the stationary engines and the power plant in the shops. Appellee had been engaged in the same work for appellant for about four years. About 2:30 in the afternoon of February 1, 1931, while engaged in unloading a tank car of crude oil which had been shipped from El Dorado, Arkansas, through Louisiana, to McGehee, and which had been spotted over the underground tank, he was injured in the right knee by slipping in a small quantity of crude oil on top of the tank car, striking his knee against one of the pointed rivets in the tank car. The tank car was constructed with a ladder at each end, on both sides, ivith a walkway on both sides of the car at or near the bottom of the tank. At the middle of the tank another ladder goes up to the top of the car on either side with a platform constructed at or near the bottom of the dome which extends up about three feet from the top of the car. Appellee climbed up to the platform for the purpose of unscrewing the cap to the dome and opening the valve in the bottom of the car. He says that the cap had been put in crooked, or that the threads had become crossed, and did not readily come loose; that he then stepped out on top of the tánk from the platform on which he had been standing, and that he stepped into a small amount of oil on top of the car, which caused his foot to slip and him to fall, receiving a severe and painful injury to his right knee. He says he did not notice the oil until he slipped, and that he supposed that if he had looked down where he put his foot he might have seen it; that oil tank cars usually have oil spilled on top of them.
This is substantially the evidence in the case as given by appellee himself. There were .no eyewitnesses other than himself. Under these facts, we are of the opinion that appellee assumed the risk as a matter of law, and that the court should have directed a verdict in appellant’s favor at its request. Appellee had been engaged in this same character of work for about four years. He had unloaded many tank cars of oil. He knew that all or nearly all such cars have oil spilled on them. He knew that it was dangerous to step in oil on the rounded surface of a tank car, and that his foot might slip and cause him to fall. He was unloading this car in broad open daylight, and the only excuse he gives for not seeing the oil and thereby avoiding it is that he did not look. Had he looked, he would have seen the oil, as it was plainly visible on the top of the car. The law, under such circumstances, is well settled. In the recent case of Mississippi Valley Power Co. v. Hubbard, 181 Ark. 487, 26 S. W. (2d) 118, we said: “It is true employees do not ordinarily assume risks created by the negligent act of the master, and that he has a right to require of the master to provide suitable appliances and a safe place in which to do his work, and-to do such is the clear duty of the master. St. L., I. M. & S. R. Co. v. Touhey, 67 Ark. 209, 54 S. W. 577, 77 Am. St. Rep. 109 ; Pettus & Buford v. Kerr, 87 Ark. 396, 112 S. W. 886; St. L., I. M. & S. R. Co. v. Holmes, 88 Ark. 181, 114 S. W. 221. But it is equally true that, where the danger arising from the negligent conduct of the master is so apparent and obvious in its nature as to be at once discoverable to one of ordinary intelligence, an employee, by voluntarily under taking to perforin Ms work in snob, a situation, assumes the hazards which exempts the employer from liability on account of injury to the employee. Wisconsin & Ark. Lbr. Co. v. Allison, 171 Ark. 983, 287 S. W. 197; Ward Furniture Co. v. Weigand, 173 Ark. 762, 293 S. W. 1002.” Other recent cases on the subject are Howell v. Harvill, 185 Ark. 977, 50 S. W. (2d) 597, and Koss Construction Co. v. Vanderberg, 185 Ark. 316, 47 S. W. (2d) 41.
No one knew how the oil happened to be on the top of the tank, whether it had sloshed out of the tank car through the dome, or whether it had been spilt there by the oil company, from whom it was purchased, in loading it, but this can make no difference. The undisputed proof shows that it was quite the usual thing for oil to be on top of such cars, to the knowledge of appellee, and he could not blindly step therein under the circumstances of this case without assuming the risk of so doing.
The judgment will be reversed, and the cause dismissed. | [
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Smith, J.
The facts out of which the present litigation arises are stated in the opinion rendered upon the former appeal. 117 Ark. 628. Such of the facts as are material to an understanding of the questions raised on this appeal may be summarized as follows: Doctor Bugg sold a tract of land to Huffman and Hunter, for $21,400, of which $10,400 was paid in cash, and notes were executed for the balance. Hunter furnished his half of this cash payment, and, in addition, loaned Huffman $5,000, with which to pay his half, and, by way of security therefor, Huffman gave Hunter a note and executed a mortgage on his half interest in the land to secure the payment of the note. Subsequently Huffman conveyed his interest in the land to Doctor Bugg by a quitclaim deed, which recited a consideration of ‘ ‘ One Dollar and other valuable considerations.” Hunter sued Huffman on the note, and recovered judgment for the amount thereof, and interest, aggregating $9,322.41, and Huffman paid this amount to Hunter in satisfaction of the judgment. Huffman filed a claim against the estate of Doctor Bugg, who had died in the meantime, to recover this money, and alleged that the “other valuable considerations” referred to in his deed to Doctor Bugg was an agreement on Bugg’s part to assume and pay Huffman’s note to the order of Hunter. A verdict was directed by the court at the first trial, upon the ground that there was not enough testimony to warrant the submission of the question, whether Doctor Bugg' agreed, as a part of the consideration for the conveyance to him. by Huffman, to assume and pay off the note to Hunter. The judgment there rendered upon the ver- . diet so directed was reversed, because, in our opinion, the . evidence of a witness named Barber made a case for the • jury. This witness testified that Doctor Bugg told him that he (Bugg) had assumed and agreed to pay this note to Hunter, as a consideration for the execution of the deed to him.
Upon the remand of the cause, Barber gave substantially the same testimony, and was cross-examined at. length for the purpose of developing alleged inconsistencies in his statements, which we need not consider here, as the reasonableness of his testimony was a question solely for the jury. It was shown that Huffman paid the judgment against him on February 4, 1911, and filed a claim therefor against the estate of Doctor Bugg on the same day. It was also shown that Doctor Bugg lived in Blythe-ville, and Huffman near there, and that Doctor Bugg lived for more than a year after the recovery of the judgment by Hunter against Huffman, during which time Huffman appears to have made no demand on Doctor Bugg to assume or pay this debt.
A number of instructions were given, and, among ' others, an instruction numbered 6, which reads as follows :
“6. You are instructed that although you may find from the evidence that Bugg informed one Barber that he had assumed Huffman’s debt to Hunter, such evidence would not here be sufficient to charge the Bugg estate in this action. You must further find from such evidence that there was a consideration for the assumption of such indebtedness—if you find that such indebtedness was assumed—and the burden is on the plaintiff to show a consideration by- such preponderance of the evidence. ’ ’
This instruction was given orally, and appellee did not know that any objection had been made, or exceptions saved, to giving it, until the bill of exceptions came on for approval. At that time, counsel for appellant had incorporated in the bill of exceptions the following specific objections to this instruction:
“The plaintiff objects to the above instruction No. 6 generally on the ground that it is abstract, and is not the law. Plaintiff objects to said instruction No. 6 specific ally on the ground that it singles out the evidence of Barber. Plaintiff objects to said instruction No. 6 further on the ground that it is an instruction on the weight to be given to the evidence, and is therefore an invasion of the province of the jury. The plaintiff objects specifically td said instruction further on the ground that the language ‘such evidence,’ in the second paragraph of said instruction, limits the jury to the consideration of Barber’s evidence alone to find a consideration for the promise of Bugg. Plaintiff objects to said instruction No. 6 further on the ground that it excludes from the consideration of the jury all evidence of a consideration for the promise of Bugg except the evidence of Barber. Plaintiff objects further to said instruction 6 on the ground that it emphasizes again the fa,ct that the burden is on the plaintiff to show a consideration for the promise of Bugg, the jury having already been 'told three times in previous instructions that the burden is on the plaintiff.”
A hearing was had before the court upon a motion to correct the bill of exceptions, at which time attorneys representing the opposing sides testified, and the judge himself made a statement, all of which evidence is incorporated in the bill of exceptions. Prom the evidence heard upon the matter of the correction of the bill of exceptions, the following facts appear: The instruction was given orally, whereupon, before making the opening argument to the jury, Mr. Coston, of counsel for appellant, approached the judge’s stand, and said: “In keeping with the practice of this court, I presume all objections and exceptions to instructions are saved. ’ ’ And the court replied, “Certainly, such exceptions will be noted, and you may read same into the record. ’ ’ The bill of exceptions contains the following finding of fact made by the court:
“The attorneys for tie defendant did not know that the attorneys for the plaintiff, or either of them, had saved any exceptions whatever to any part of the charge of the court. The court finds, however, that it has in dulged the practice of permitting attorneys to assume that objections and exceptions to instructions are made and saved without calling the attention to them at the time, the practice requiring that the objections and exceptions be subsequently written out and entered in the bill of exceptions. Nothing was said by either attorney for the plaintiff to either of the attorneys for the defendant during the term of court that would put them on notice that any objections had been made or exceptions saved to any part of the charge of the court. ’ ’
It further appears that Mr. Coston did not limit his argument to Barber’s o< ussing the question of the consideration referred to in the deed to Doctor Bugg, and that, in this connection, he called attention to the other facts herein recited as showing there was a consideration for the assumption of this debt by Doctor Bugg, and his right to do so under the instructions given was not questioned. He now urges the specific objections set out above, and insists that the instruction excluded from the jury any evidence of a consideration for the promise of Doctor Bugg except the evidence of Barber. The court, however, made the following finding of fact:
‘ ‘ The court has no personal recollection whether the word ‘such’ which appears in the fifth line of instruction No. 6, given by the court to the jury, as the same .now appears in the transcript of this cause in the Supreme Court, was used by the court instead of the word ‘the’ which should have been used. The court finds, however, that if the word ‘such’ was used at that place in the instruction instead of the word ‘the’ it was a mere inadvertence that escaped the attention of the court, and the attention of the attorneys for the defendant.”
(1-2) Under this state of the record, we must treat this instruction as if only a general objection had been made to it. It was entirely proper for the court to conform to a practice adopted by it to treat exceptions as saved to oral instructions where objections had been made during the trial. The statute provides that this may be done. Section 6222, Kirby’s Digest. But it is a different matter to say that specific objections can be made after the conclusion of the trial. To so assert is a contradiction in terms. Such practice would defeat the very purpose of requiring specific objections. Such objections could ■serve no purpose if not made at the trial and opposing counsel have the right to be advised if such objections are made, and it is not contended here that counsel for appellee was so advised.
We conclude, therefore, that the instruction is not open to the objection that it limited the consideration of the jury to the evidence of Barber in determining whether there was a consideration moving to Doctor Bugg to assume the payment of Huffman’s debt. We are made more ceitain of this when we read this instruction in connection with the other instructions given in the case, as we must do in determining the meaning of any particular instruction. Nor do we think the instruction is open to the objection that it is argumentative. It was, of course, proper for the court to tell the jury that Doctor Bugg’s mere statement that he had assumed the payment of Huffman’s debt was not binding unless there was, in fact, a consideration for this promise.
Nor do we think that error was committed by the repetition of the statement of the law upon the question of the burden of proof. This burden rested upon Huffman’s administrator, not only to show a consideration for the promise to pay Huffman’s debt, but the burden was upon the plaintiff upon the whole case, and we see nothing in the instruction, as a whole, which lays undue stress upon that fact.
Finding no prejudicial error, the judgment of the court below is affirmed. | [
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Smith;, J.
Appellant says, in his brief, that “the only question to be determined on this appeal is whether or not the plaintiff in this case has a right to garnishee the State Highway Commission after filing suit in the Pulaski Circuit Court against the defendant, S. B. Ziegler, doing business as Ziegler Construction Company, which company holds an indebtedness against the State Highway Commission on account of constructing highways under a contract with the Highway Commission, and which has been specifically authorized to construct highways and to sue and be sued, the appellant being employed by the defendant in the construction of said hig’hways and injured while so employed.”
We think the court below correctly held that the right did not exist to garnishee money due Ziegler by the State Highway Commission, for the reason that the commission is an agency of the State, and, as such, is not subject to suits of this character.
The case of Arkansas State Highway Commission v. Dodge, 181 Ark. 539, 26 S. W. (2d) 879, is cited as authorizing this garnishment proceeding. But such is not the effect of that ease. We did there hold that the State Highway Commission had been created as a corporate entity to contract with reference to the construction of certain State highways, and that the Commission might be sued in relation thereto, but we stated that the whole proceeding was statutory, and suits could be maintained only to the extent and in the manner authorized by statute. See also Baer v. Arkansas State Highway Commission, 185 Ark. 590 48 S. W. (2d) 842.
The instant case is not a suit to enforce a construction contract, hut is a suit at law for damages for personal injuries by an employee of a contractor against his employer, with a writ of garnishment to impound money due the contractor by the State Highway Commission, in order that the money may be applied to the satisfaction of any judgment which the employee may finally recover.
In the chapter on Garnishment, 2iS C. J., page 55, it is said that there is authority to the effect that, under a provision authorizing the summoning of persons and corporations generally as garnishees, a municipal or public corporation may thus be brought into the case. It is, however, also said: “But, according to the weight of authority, general provisions authorizing garnishment do not, in the absence of a clearly expressed legislative intention to such effect, apply to the Federal and State governments, or their officers or agencies. This rule includes all municipal or quasi municipal corporations or other public bodies charged with the performance of governmental functions, or their officers or agents.”
An answer was filed on behalf of the Highway Commission, admitting its indebtedness to Ziegler, which raised no question as to the right of the plaintiff to impound the money due from the Commission to Ziegler by writ of garnishment, and it is argued that as the Commission does not raise the question that it is not subject to garnishment, the defendant cannot do so; in other words, that there has been a waiver by the Commission of its exemption from garnishment. We think, however, that this exemption may not be waived, and that the de- • fendant, Ziegler, had the right to move, as he did do, to quash the writ, although the Highway Commission has not done so.
Numerous authorities on this question are reviewed in the case of Welch Lumber Co. v. Carter, 78 W. Va. 11, 88 S. E. 1034, by the Supreme Court of Appeals of West Virginia, where it is stated that, while there are cases holding that the exemption from process of garnishment is a privilege personal to the agency possessing it, yet the weight of authority is opposed to this view, and that the public policy which forbids the process in the first instance forbids also its waiver. This case is annotated in 2 A. L. R. 1582, where many cases on the subject are cited.
It was- held by the Supreme Court of Alabama, in the case of Porter & Blair Hardware Co. v. Perdue, 105 Ala 293, 16 So. 713, that garnishment is a remedy of statutory creation and existence, and that there is no authority to resort to it except in cases and against parties which are and who are within the terms of the statute. And, further, that public corporations and governmental agencies are held not to be subject to this process unless included, in unequivocal terms, by the letter of the statute, on grounds of public policy. It was there further said: ‘ ‘ But whether the nonliability of such corporations to this process be put upon the idea of exemption merely from the operation of a statute broad enough to embrace them, or upon the idea that they are not embraced at all in the terms of the statute, is of no practical consequence. If they are not within the statute at all, no court has, nor by consent can acquire, jurisdiction to proceed against them in this way; and, if it is a mere matter of exemption, the same public policy which gives life to it is potent also to prevent the officers and agents for the time being of such corporations from waiving the exemption by appearing without objection and admitting indebtedness for the corporation. 8 Am. & Eng. Ehc. Law, p. 1135. ”
Like the State of Alabama, we have no statute making these governmental agencies subject to garnishment.
We have held, in several cases, that, where contracts' have been fully completed for certain governmental agencies, and nothing remains to be done except to pay the contract price due the contractor, the creditors of such contractor, if he be insolvent, may, by equitable garnishment, impound the money due him and subject it to the payment of their demands against him. The following are cases of this kind: Henslee v. Mobley, 148 Ark. 181, 230 S. W. 17; Riggin v. Hilliard, 56 Ark. 451, 20 S. W. 402. See also First Nat. Bank v. Mays, 175 Ark. 542, 299 S. W. 1002. These cases appear to have no application to the facts of this case.
We conclude therefore that the garnishment was properly quashed, and that judgment is affirmed. | [
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Kirby, J.
(after stating the facts). It is first urged that the court erred in refusing to direct a verdict in appellant’s favor at the conclusion of the testimony for appellee and also after all the testimony was introduced. It is insisted that there was no substantial testimony supporting the allegations of negligence on the part of appellant or that working in the water and slush caused the injury to appellee; appellant insisting that the undisputed testimony disclosed that appellee was an experienced workman, knew as much about the conditions under which the work was to be done as any one, and assumed the risk of any injury therefrom. It is undisputed that one of the men in the gang, when they were ordered to clean up the pumping station in the presence of appellee asked Mr. Hamilton, the foreman, “What about some boots to get in and clean it out,” and that he was told they didn’t need any boots, that it was not dangerous and that they couldn’t do any good with boots in there.
Appellee testified about Ms experience working in the oil fields, denied that he knew that he might become infected from working in oil and slush in cleaning out the pumping station, saying: “No, sir. I never heard of it before; I didn’t know anything about it.”
It was not denied that the men had requested that they be furnished rubber boots for doing the work; and the foreman stated that the company did furnish rubber boots to employees in certain places “where they were working in oil, where there was acid and stuff like that, like down here below these refineries.” He also said that several of the men under his supervision had complained about sore feet, which they said was the result of oil poisoning.
The company’s physician, to whom appellee was sent for treatment, pronounced the trouble “oil poisoning” and cautioned appellee not to work around where he would get oil on his feet after he begun to recover.
Appellee had the right, in the absence of knowledge on his part, to rely upon the assumption that the master had performed his duties so as not to expose him to extraordinary hazards, and, being directed by his foreman to do this work in this place, was justified in obeying the order and did not assume the risk incident thereto, not realizing the danger to which he was thereby exposed. A. L. Clark Lumber Co. v. Northcutt, 95 Ark. 291, 129 S. W. 88, Woodley Pet. Co. v. Willis, 172 Ark. 671, 290 S. W. 953; Dickinson v. Mooneyham, 136 Ark. 606, 203 S. W. 840; Central Coal & Coke Co. v. Fitzgerald, 146 Ark. 109, 225 S. W. 433; St. L. S. W. Ry. Co. v. Gant, 164 Ark. 621, 262 S. W. 654; and Western Coal & Mining Co. v. Burns, 168 Ark. 976, 272 S. W. 357.
The jury was also warranted in finding from the testimony that the performance of the service under the direction of the master resulted in the injury, as appellant’s physician, to whom appellee was sent for treatment, declared he was suffering from oil poisoning; and he was not shown to have been so afflicted before he did this work, nor was there any evidence or indication that he had performed any labor of any kind thereafter which did expose him to the danger of oil poisoning. The testimony is sufficient to support the verdict, and the court did not err in refusing to direct a verdict in appellant’s favor.
Neither did the court err in giving appellee’s requested instruction No. 1, which was not abstract, and submitted to the jury the question of appellant’s negligence in not exercising proper icare to furnish appellee a reasonably safe place in which to work. If the foreman knew, or by the exercise of ordinary care could have known, that it was not safe to work in the oil and slush without protective covering, and the plaintiff did not know of such danger, he should have been notified thereof, and certainly did not assume the risk of any such danger. Appellee stated he did not know of any such danger; and it was shown that appellant’s foreman knew that many of the men under his supervision had complained of oil poisoning, and that the company supplied rubber boots for the protection of its employees who were required to work where there was oil and acid and stuff like that.
Neither was error committed in the instruction complained of upon the assumption of risk. Appellee might well have been considered inexperienced, in so far as being unacquainted with the dangers that might result from working in the oil and slush without rubber boots where he was directed to work, and the jury could have found that appellant knew such danger, or should have known of such danger, through the knowledge of its foreman from the different cases of poisoning with which he was shown to have been acquainted, leaving the jury to determine whether he exercised reasonable care in failing to warn the appellee of such danger. Appellee was experienced in many kinds of service about an oil field, but testified he knew nothing about any oil poisoning resulting from working in the oil, and he was not only not warned about the attendant danger but was assured by the foreman that there was no danger when directed to do the work.
Neither did the conrt err in refusing to give appellant’s requested instructions telling the jury that appellant would not be liable for injury resulting from walking and standing in the oil and slush while cleaning out the pumping station, if they believed that an ordinary individual under the same circumstances doing the work would not have been injuriously affected by it, or if appellee’s feet were over sensitive and more susceptible to poison for any reason than any ordinary person making it a place of peculiar danger to him on account of his physical condition, unless the foreman was aware of such fact or by the exercise of ordinary care could have known of it. There was no testimony to show that appellee was any more susceptible to oil poisoning than the ordinary man, nor that he had knowledge of such condition, if it had been a fact, and did not disclose it to appellant’s foreman when he was directed to assist in cleaning out the pumping station, where he would be compelled to walk and stand in the slush and waste oil.
It is true that only one of the other men enga'ged in the service of appellant with appellee in cleaning out the pumping station was poisoned, and the effects of the poisoning developed on his arm, but such fact does not show that appellee had any knowledge of any such physical condition that would make him more susceptible to oil poisoning than the ordinary man, and certainly he was ignorant of any such condition if it existed, never having suffered from such poisoning theretofore. The negligence here consisted in not exercising ordinary care to furnish a reasonably safe place in which to do the work which appellee was directed to and did perform in cleaning out the pumping station, being assured that the work was not dangerous and that the employees did not need to use rubber boots, which were usually supplied the workmen for performance of such service under conditions that might otherwise result in injury to them.
The appellee was injured, has suffered much and has long been out of employment and has not yet recovered, but the verdict is not claimed to be excessive. We find no error in the record, and the judgment is affirmed. | [
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Smith, J.
This is a petition for mandamus, directed against the Hon. Guy Fulk, as judge of the second division of the Pulaski circuit court.
The case arises out of the proceedings had in that court upon the suing out of the mandate from this court in the case of Nothwang v. Harrison, decided January 1, 1917, and reported in 126 Ark. 548, 191 S. W. 2. As appears from the opinion in that case, Nothwang had attached a lot of shingles belonging to Harrison Bros., and after a mistrial of that cause and pending another trial the court made an order directing the sale of these shingles, and, pursuant thereto, the shingles were sold to Nothwang for $350.00. In due time, and before the first trial of that cause, the defendant in the attachment case filed an answer and cross-complaint, in which the material allegations of the complaint were denied, and a cause of action in their own favor set up, in winch it was alleged that damages in the sum of $719.50 had been sustained. After this sale, the defendants filed an amendment to their cross-complaint, reciting the sale of the shingles, and stating their value, at the time they were attached, to be $742.59, and judgment was thereupon prayed in the sum of $1,462.09, which sum included the alleged value of the shingles and the amount of damages for which judgment had been originally prayed.
These questions were gone into at the original trial, and, at the request of the defendants, the court gave an instruction on the measure of damages, in which the jury was told that, “In this connection, if you find against the plaintiff, and for the defendants, you will ascertain, from the evidence, the value of the shingles attached, at the time attached, and render a verdict for defendants for the amount so found, with interest at 6 per cent, per annum from May 18, 1915 (the date of the attachment). Further, in ascertaining this value, you will not consider, or be guided by, the amount plaintiff paid for said shingles at the sheriff’s sale.”
A judgment was returned in favor of defendants for the sum of $500 and this judgment was affirmed by us on appeal.
The cause was further heard on January 20, 1917, by the court below, on the mandate from this court, at which time defendants prayed the court to render judgment against Nothwang and his sureties in the sum of $500, with interest from date of the judgment appealed from, and, in addition, that the court order the sheriff to pay to them the $350 for which the shingles sold. The court refused to make this order, but on the contrary, directed the sheriff to turn over to defendants the said $350, “to be by them applied on the judgment of $500 secured by them against Nothwang, et al.” Whereupon, this petition for mandamus was filed, to require the court to make the order prayed bqlow.
The prayer of this petition must be denied for two reasons. The first is that the petitioners have had their day in coutb on the question of the value of the shingles. They had the right to treat the $350 as representing the value of the shingles, but they were not required to do so. Had they done so, they would have been entitled, under section 380 of Kirby’s Digest, to this money upon the dissolution of the attachment. This section provides that the attached property, or its proceeds, shall be returned to the defendant upon the dissolution of the attachment. Defendants elected, however, to amend their cross-complaint to allege the value of the shingles was not $350, but was $742.59, and that issue has been passed upon by the jury.
(1) In C. J. Yol. 6, 420, it is said: “Where plaintiff was totally deprived of his property, the measure of damages is the value of the property taken, at the time of the seizure, with interest from the date of the levy up to the time of trial.” The cases of Perkins v. Ewan, 66 Ark. 175, and Straub v. Wooten, 45 Ark. 112, are there cited to support that statement of the law.
(2) This rule is in accordance with our statute upon the subject. Section 381 of Kirby’s Digest provides that, in all cases of attachment in which the attachment is discharged, the court or jury trying such attachment shall assess the damages sustained by reason thereof, and judgment shall be rendered against the plaintiff, and his sureties in the attachment bond, for the amount of such damages, and the cost of the attachment.
The practice under this section has been defined in the following eases: Rogers v. Coates, 103 Ark. 191; Holliday v. Cohn, 34 Ark. 710; Boatwright v. Stewart, 37 Ark. 614; Goodbar v. Lindsley, 51 Ark. 382; Poppewell v. Hill, 55 Ark. 622; Blass v. Lee, 55 Ark. 329; Scanlan v. Guiling, 63 Ark. 540; Norman v. Fife, 61 Ark. 33; Walker v. Fetzer, 62 Ark. 135.
Defendants might have availed themselves of the benefits of section 380, in which event, upon the dissolution of the attachment, they would have been entitled to the proceeds of the sale of the attached property in the hands of the sheriff. But, as has been said, they had the right to proceed under section 381 of Kirby’s Digest, and have the jury find the value of the property which had been sold, and, having done this, they can not also avail themselves of the provisions of section 380. The positions are inconsistent.
(3) Moreover, mandamus will not lie, because the action of the court was a judicial, and not a ministerial, one, and, if it be assumed that the court erroneously refused to render judgment for the $350, by directing the payment of the $350 to petitioners, to apply on their judgment, then the error was one to be corrected by appeal, and not by mandamus. Maxey v. Coffin, 94 Ark. 214; Rolfe v. Drainage District, 101 Ark. 29, and cases cited.
The petition for mandamus is therefore denied. | [
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Hart, J.
(after stating the facts). (1) Counsel for the plaintiff, Montague, filed what they termed a bill of review, but it was, in effect, a motion under section 4431, of Kirby’s Digest, after the expiration of the term, to vacate the decree. The evidence shows that the original decree was not based upon an agreed statement of facts, as it purports to be, but that it was in reality a decree by default. A proceeding seeking the vacation of a default judgment or decree is warranted by section 4431, of Kirby’s Digest, and such judgment or decree may be vacated or modified for fraud or mistake in its procurement in a proceeding instituted for that purpose in the court in which it was rendered. Norman v. Cammack, 105 Ark. 121, and Dale v. Bland, 93 Ark. 266. Hence it will be readily seen that the petition to vacate the judgment in the present action was more properly a proceeding under section 4431, of Kirby’s Digest, and it will be so treated.
(2) A party moving to set aside a judgment or a decree rendered against him by default must state his defense and make a prima facie showing of merit in order that the court may determine whether he is injured by not being permitted to have the benefit of it. Citizens Bank of Lavaca v. Barr, 123 Ark. 443.
The record in the present case shows that the mortgage of Montague was prior, in point of time, to that of Craddock and Stotts. The same pair of horses was included in both mortgages. The mortgage to Montague was executed and filed for record more than a month before the mortgage to Craddock and Stotts was executed. Montague deposited the mortgage in the recorder’s office of the district of Craighead County in which Needham at the time resided. It is claimed that the mortgage was recorded on the record for real estate mortgages, and for that reason was not notice to subsequent purchasers. We need not decide that question, for the mortgage was filed in the proper office for record.
(3-4) To secure a party his full rights under our registry laws, the substantial act to be done is to take the mortgage and cause it to be placed on file for record in the office where such instruments are to be recorded, and when this is done and the mortgage is received by the officer for record, this is sufficient to effect with notice all who subsequently deal with the property. Oats v. Walls, 28 Ark. 244, and Case & Co. v. Hargadine, 43 Ark. 144. The mortgage to Montague was to secure the purchase price of the horses embraced in it, and the mortgage debt has not been paid. This makes a showing of merit and brings us to the question of whether or not the decree should be set aside for fraud or mistake in its procurement.
(5-6) We think it sufficiently appears from the testimony of Baker that he was misled by the statement of Judge Walker, who was the attorney for Craddock and Stotts. He had a right to assume from- his version of their conversation, that the case would not be taken up without notifying him. It appears that he thought that the court had no jurisdiction because an attempt was made to foreclose in the same action a mortgage on real estate which was situated in another district in the same county. He says it was understood that he should be notified when the case was to be taken up and did not appear at the adjourned term because no depositions had been taken by either party, and he relied upon his understanding that the case would not be taken up without notice to him. He stated that Craddock was only present during a part of the conversation that he had with Judge Walker. Judge Walker was not a witness in the case, and there is nothing to contradict the testimony of Baker. It is true Craddock contradicted his testimony in regard to some other matters which occurred during the conversation, but we do not think there is any contradiction of Baker’s testimony with regard to the postponement of the trial. There was no negligence on his part in placing reliance upon the statements made to him, and while we do not think that any fraud was intended to be practiced upon Montague, the result was that Montague was deprived of his right to appear and defend the action, and this constituted a fraud in law. This principle has been recognized in the case of Lawson v. Bettison, 12 Ark. 401. Belief against fraud in judgment and decrees has also been recognized as a ground for equitable jurisdiction. Where by mistake or fraud a party has gained an unfair advantage in proceedings in a court which must operate to make that court an instrument of injustice, courts of equity will interfere and restrain him from reaping fruits of the advantage thus improperly gained. In the application of the principle, an injunction will be granted against a judgment taken in violation of an agreement to continue the case, where there is a good defense to the action. Beams v. Denham, 2 Ill. 58; Moore v. Lipscombe, 82 Va. 546; Sanderson v. Voelcker, 51 Mo. App. 328; Brooks v. Twitchell, 182 Mass. 443, 94 A. S. R. 662; see, also, 15 R. C. L. sec. 217, p. 766.
It follows that the court erred in not vacating the decree in the original case. For that error the decree will be reversed and the cause remanded for further proceedings in accordance with this opinion. | [
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Hart, J.
On September 16, 1916, appellant purchased a tract of land under a mortgage foreclosure sale, and the sale was confirmed by the chancery court on September 20,1916. From the decree of the chancellor denying him the right to the rents, the appellant prosecutes this appeal. This is the second appeal in the case. The opinion on the former appeal is reported in 124 Ark. 360, under the style of Coffin v. Planters Cotton Company. The original suit involved the priority of the mortgages of appellee and other parties and also a foreclosure of the same. On January 17,1915, the parties consented to the appointment of a receiver for the lands involved in the action. The receiver was ordered to rent the farm for the best price obtainable for the year 1915, and was further authorized to discount any of the rent notes and to apply the proceeds to the payment of taxes and drainage and levee assessments against the property.
Some time in the summer of 1915, the court rendered a decree in which it settled the priority of the mortgages on the lands and ordered a sale of the lands to satisfy the mortgage indebtedness. The decree of foreclosure provided that the sale should be made without equity of redemption and that the purchaser should be entitled to the possession on January 1,1916, if the sale be made before that date, and if the sale be not made before that date that the purchaser shall have immediate possession. An appeal was taken from the decree to this court and for that reason a sale of the premises under the decree was ■ not had. The receiver had been appointed by the court as special commissioner to make the sale. The decree of the chancellor was affirmed in an opinion delivered by this court on June 12, 1916. In March of that year the receiver had rented the land again, and in the rent contract it was provided that the rents should be payable on November 15, 1916. The mandate of the Supreme Court was issued on the 21st day of July, 1916. It is not shown on what day the mandate was filed in the chancery court, but the record does show that notice of the mandate was waived.
The special commissioner advertised the lands for sale under the original decree by the chancery court and fixed September 16, 1916, as the day for the sale. The notice stated that the sale would be in bar of the equity of redemption and that the purchaser would be entitled to the possession on January 1, 1917. The land sold for $19,000 and the Planters Mercantile Company became the purchaser. Exceptions to the report of sale were filed in the chancery court and were acted on on the 20th day of September, 1916. On that day the court confirmed the sale and the purchaser having elected to waive the time and pay the purchase price in cash, the commissioner was ordered to make him a deed. In the order of confirmation, the court held that the Planters Mercantile Company was not entitled to the rents for 1916, and decreed the same to belong to the Planters Cotton Company, one of the mortgagees and a party to the suit. The receivership was continued with directions to the receiver to collect the rent for 1916, and pay out of it all taxes and assessments which may have accrued and remained unpaid upon the land.
The special commissioner testified that on the day of the sale there was a difference of opinion between the parties interested as to whether the purchaser would get the rents for the current year. He stated that he announced to the bidders that the sale'would be made on the supposition that the rents would not go to the purchaser and they could bid accordingly. On cross-examination he was asked that, if instead of making this statement, he did not say it was uncertain as to what would become of the rents and he said it was uncertain, and therefore the bidders would bid with the understanding of a possibility of the rents not going with the land.
It is the contention of appellant, the purchaser at the sale, that it is entitled to the rents under the authority of Gailey v. Ricketts, 123 Ark. 18. Under the facts of that case there was no reservation of the right to the rents and the court held that the deed of the commissioner conveyed to the purchaser that interest which a deed from the heirs as of that date would have conveyed. In that case the commissioner himself did not make any announcement about any reservation of the rents. The notice of sale contained a clause that possession would be given to the entire premises November 1, 1914, and for fall sowing October 15,1914. There was a tenant in possession of the property and the court held that the notice only undertook to say when and for what purpose the purchaser might share possession with the tenant. The court further said that the decree of foreclosure made no reservation of the rents and that the authority of the commissioner related to its provisions. Here it may be said that the facts are essentially different. A receiver had been appointed in the early part of January, 1915, and had been given authority to rent out the land and take rent notes therefor. He was directed to discount the rent notes and pay certain taxes and assessments against the lands.
A final decree was entered of record in the latter part of the summer in which the priority of the mortgages was settled and the mortgages ordered to be foreclosed. The decree of foreclosure provided that the sale should be made without equity of redemption and that the purchaser should be entitled to possession on January 1, 1916, if the sale was made before that date, and, if afterward, the purchaser should have immediate possession. This indicates that the court had in mind that he had already directed the receiver to rent out the lands and to discount the rent notes in order that he might pay certain fixed charges against the land and that it intended to reserve the rents from the sale. It was evidently intended that the sale should be made during the fall of 1915, or in any event during the first part of 1916. No sale was made as contemplated by the decree because an appeal was taken to this court. The record shows that the receiver rented out the land again for the year 1916. This court affirmed the decree of the chancellor on June 12, 1916, and its mandate was issued on July 21,1916. After the mandate was filed in the chancery court, it appears that the special commissioner advertised the lands for sale without any further directions from the court. The notice of sale provided that it should be in bar of the equity of redemption and that the purchaser would be entitled to possession on January 1,1917. It will be remembered that the special commissioner was also the receiver in the case. It is evident then that the recital in the notice just referred to was in conformity with the decree and not contrary to its provisions. The evident purpose of the decree was to reserve the rents from sale because they had already been sequestered by the appointment of a receiver to collect them and dispose of them under orders of the court. On account of the appeal to this court the sale was postponed for about one year and the commissioner in his notice of sale stated that the sale would be in bar of the equity of redemption and that the purchaser would be entitled to possession on January 1, 1917, instead of saying January 1, 1916, as literally directed in the original decree. The evident purpose of the language of the original decree was to reserve the rents from the bale regardless of when the sale should be made. This reservation of the rents no doubt was made because of the appointment of the receiver and the disposition ordered to be made of them by him. Therefore, under the circumstances of this case we think there was an express reservation of the rents from the sale and that the court properly directed them to be applied to the mortgage debt instead of giving them to the purchaser under the foreclosure sale.
It follows that the decree must be affirmed. | [
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Hart, J.
Toledo Scales Company sued W. H. Miellmier to recover the purchase price of certain computing scales.
The complaint alleges that plaintiff is a corporation domiciled at Toledo, Ohio, and that defendant is a resident of the Greenwood District of Sebastian county; that it entered into a written contract with defendant for the sale of scales to be used in his grocery business, and that defendant owes it the balance of the purchase price in the sum of $125.00. The defendant in his answer stated that he did not deny that the plaintiff is a corporation organized under the laws of Ohio but asserts that the contract was entered into in the State of Arkansas and that plaintiff has failed and refused to comply with the laws of the State in regard to foreign corporations doing business within the State. The defendant for further defense alleged that the contract for the sale of the scales was not an absolute one and averred that under it, he had a right to return the scales if they proved unsatisfactory.. He stated that he did offer to return the scales and the plaintiff refused to receive them.
The plaintiff introduced in evidence the written contract which was absolute in its terms. The defendant testified that Campbell, the sales agent for the plaintiff, first exhibited to him a contract absolute in its terms and that he refused to sign it and that there was attached to it a written contract whereby it was agreed-that he should have sixty days within which to try the scales and that if they did not prove satisfactory he might return them at any time within the sixty days; that the scales were delivered to him at his place of business i-n the State of Arkansas, by the plaintiff’s agent at the time the contract was executed; that the scales proved to be unsatisfactory and that he offered to return them to the plaintiff within sixty days as provided in the contract and that the plaintiff refused to accept them; that the scales were subsequently destroyed by fire without his fault, and the contract was destroyed by the same fire, which burned down his place of business.
The defendant was corroborated by the sales agent of the plaintiff in all respects. He testified that he sent in the contract to the district manager of the plaintiff at Fort Smith and that the contract sent in was in all respects as testified to by the defendant. At the conclusion of the testimony each party asked the court for a directed verdict. The court directed a verdict for the plaintiff and the defendant has appealed.
(1) The effect of our decisions is that where both parties request peremptory instructions and do nothing more, they thereby assume the facts to be undisputed and submit to the trial judge the determination of the inferences proper to be drawn from them. St. L. Sw. Ry. Co. v. Mulkey, 100 Ark. 71, and St. L., I. M. & S. R. Co. v. Ingram, 118 Ark. 377. Under this rule the direction of the verdict by the court must have been sustained had there been no issue raised by the appeal except as to whether the sale was an absolute one or was made with right of the defendant to return the property if the scales were not satisfactory.
The answer of the defendant, however, alleges that the plaintiff had failed and refused to comply with the laws of the State of Arkansas in regard to doing business in this State. Before authority is granted to any foreign corporation to do business in this State it must file with the Secretary of State a resolution adopted by its Board of Directors consenting there that service of process upon any agent of such company in the State or upoli the Secretary of State shall be a valid service upon said company in any action brought in this State. It is also required to fiíe a copy of its charter, duly certified by the proper authority, together with a statement of its assets and liabilities and the amount of its capital employed in this State, and shall designate its general office in this State and name an agent upon whom process may be served. Acts of 1907, p. 744. The Aet also provides that any foreign corporation which shall fail or refuse to file its articles of incorporation or certificate as provided cannot make any con tract in this State which can be enforced by it either in law or in equity.
In the case of Lehigh Valley Coal Co. v. J. K. Gilmore et al., 93 Minn. 432, vol. 2 A. & E. Ann. Cas. 1004, it was held that a foreign corporation doing business within a State will be presumed to have complied with the statutes thereof prescribing the condition upon which such corporations may do business within the State, and in an action brought by a foreign corporation, where its failure to comply with the statutes does not appear upon the face of the complaint, the defendant must plead such failure or it will not be available to him as a defense. The failure of a foreign corporation to comply with the law of the State before it may maintain an action goes to its capacity to sue and unless it complies with the law, it has no capacity to sue. A note to the case just cited states that the reported case is in accord with the weight of authority. See also note to 9 A. & E. Ann. Cas. at p. 492.
In a case note to 13 A. & E. Ann. Cas. at p. 69, it is said that compliance by a foreign corporation with domestic statutes will be presumed unless the failure to comply therewith appears on the face of the complaint and that the failure to comply with such statute is held to be a defense which must be taken advantage of by answer. See also 12 R. C. L., sec. 79, p. 101.
In the present case the complaint did not show on its face the failure of the plaintiff to comply with the domestic statutes in regard to foreign corporations doing business in this State but the answer of the defendant pleaded this as a defense to the action. This cast upon the plaintiff the burden of showing its right to maintain the action. It was a matter which related to the plaintiff’s right to sue and having been put in issue by the defendant’s answer the burden was upon the plaintiff to establish it. There was no proof in the record tending to show that the plaintiff had complied with the statutes of Arkansas in regard to filing its certificate with the Secretary of State as provided by the Act of 1907 above referred to, but it is contended by counsel for plaintiff tbat it did not do business witbin tbe meaning of the statute just referred to. Tbe agent of tbe plaintiff who made tbe sale of tbe scales and tbe defendant himself, both testified tbat tbe contract for tbe sale of tbe scales was made at tbe defendant’s place of business in tbe State of Arkansas and tbat tbe agent bad tbe scales with him and delivered them- to tbe defendant at tbe time. Tbe agent also testified tbat he sent tbe contract to tbe district manager of tbe defendant at Fort Smith, Arkansas. Under tbis state of facts it might have been found tbat tbe plaintiff was doing business in tbe State witbin tbe meaning of our statute on tbe subject. Clark v. The J. R. Watkins Medical Co., 115 Ark. 166.
It follows tbat tbe court erred in directing a verdict for tbe plaintiff and for tbat error tbe judgment will be reversed and tbe cause remanded for a new trial. | [
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Wood, J.
The coui’t below found “that on or about the 1st day of May, 1882, Amanda Youngblood * * gave to defendant, F. F. Youngblood, the fund sued for, to-wit, $1,600, for the plaintiffs, to be held by him for them for and during the term of her natural life, and to be paid over to plaintiffs in equal proportions at her death, she reserving the interest for her life for the support and maintenance of herself and plaintiffs; the said F. F. Youngblood to loan and invest the same to best advantage, and pay the interest over to her annually.” After a careful consideration of the evidence set forth in the transcript, we have reached the conclusion that the chancellor’s findings on the facts are correct. Certainly, it cannot be said that they are clearly against the preponderance of the evidence. This being true, the following principle of law is applicable: “The delivery of property to a third person as trustee for the donee, and not as the agent of the donor, where the latter relinquishes all dominion of the property to the trustee for the purposes of the trust, is a sufficient delivery to complete the gift, which in such ease is not revoked by the subsequent death of the donor before the property has been actually delivered to the donee. And the validity of the gift is not affected by the fact that the trustee is not to deliver the property to the donee until after the donor’s death.” 14 Am. & Eng. Enc. Law (2d Ed.), 1026, and authorities cited in note, — especially Green v. Tulane, 52 N. J. Eq. 169. The doctrine announced in Nolen v. Harden, 43 Ark. 307, applies here. The transaction here shown by the proof constitutes a gift inter vivos. See 1 Crawf. Dig., title, “Gift,” p. 887, for cases showing prerequisites for such gifts.
Affirm. | [
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Wood, J.
(after stating the facts).
(1) The answer contained only a general denial of the contract and the indebtedness. It does not raise the issue of the agency of Morris or of his authority to make the contract. The answer did not deny that appellant was a corporation. On the contrary, it expressly admitted that it was a corporation. So the only issue tendered by the answer was as to whether or not there was a contract and an indebtedness.
The uncontradicted evidence on the part of the . appellee was to the effect that Morris was the general manager of the appellant and that as such he authorized the contract upon which the suit was instituted. The undisputed evidence also shows that Dudley, as local agent and manager of the appellant, went into posses sion of the store under the contract and occupied the same for a period of four months and then sold out the business and abandoned its contract. Upon the issues thus made by the pleadings and the undisputed evidence, the instructions of the court were correct. The appellant having tendered no issue as to the authority of its agent to make the contract, it was not entitled to have such issue presented to the jury in its prayers for instructions.
In Simon v. Calfee, 80 Ark. 65, 67, we said: “But a corporation can not avail itself of a want of power or lack of authority of its officers to bind it unless the defense is made on such grounds.” See also 6 Thompson on Corporations, sec. 7617.
The name “Co-operative Stores” is suggestive of the business that the undisputed evidence shows that appellant was engaged in, that of conducting co-operative stores, and that Morris was the general manager and authorized Dudley, the local manager to enter into the contract with the appellee. Even if the authority of Morris or Dudley had been challenged, and even if it had been shown that they had no express authority to make such contract, still the making of such contract was within the apparent scope of the authority of such agents, and the company would be bound by such contract.
(2) In 7 R. C. L., p. 628, it is said: “At the present time the general business of corporations is frequently entrusted to the management of a general manager and it is well recognized that the corporation is bound by the acts of such manager within the apparent scope of his authority.” Again, “the manager or superintendent of a department stands in the same relation to his department as does the general manager or superintendent to the general affairs of the corporation and the corporation is liable for his acts within the apparent scope of his authority.”
(3) The appellee having shown that Morris was the general manager of the appellant, and that the contract was made under Ms direction, it will not be presumed that as general manager he made the contract without authority from his company to do so. See Walnut Ridge Merc. Co. v. Cohn, 79 Ark. 338, 345. Moreover, even if it had been shown that Morris and Dudley were without authority to make the contract, nevertheless the undisputed evidence shows that the appellant knew of the lease and accepted the benefits thereof, having transacted its business in the store under the contract for four months, when it sold out to anóther. Under these circumstances the appellant was undoubtedly liable for the indebtedness incurred under this contract. See Arkansas Amusement Co. v. Higgins, 96 Ark. 493.
In 7' R. C. L., sec. 667, it is said: “As a general rule if a corporation with knowledge of its agent’s unauthorized act received and enjoys the benefits thereof, it impliedly ratifies the unauthorized act if it is one capable of ratification by parol.”
(4) The appellant contends that after the store room was abandoned by appellant the appellee made no effort to lease it, but that the store nevertheless was occupied by appellee’s tenant. The president of the Hotel Company testified that since the appellant vacated the store appellee had received rent for it for the months of October and November, 1915; that it was vacant the balance of the time; that he did not have an opportunity to rent it before the fall season came on. He made no special effort to rent the building until he rented it to the tenant in the fall.
On tMs branch of the case the court instructed the jury that if they found from the evidence that the defendant abandoned the store in April, 1915, it would be the duty of the plaintiff to use reasonable diligence to lease the building; that before it can recover, plaintiff must show that it exercised such diligence. The appellant asked the court to instruct the jury that if the store room was used by the Hotel Company, or its lessee with its consent, for any purpose, the duty de volved upon the Hotel Company to show accurately the amount received and the exact use to which the store was put or it could not recover. The court refused this prayer.
There was no error in the ruling of the court on this branch of the case. The testimony tended to prove that the appellee rented the building as soon as practicable after appellant vacated the same, and there was no' evidence tending to prove that the building was occupied by the appellee or any one with its consent until it was rented by appellee in the fall for the months of October and November, and appellant got the benefit of a reduction of appellee’s claim for these two months.
The judgment is in all things correct, and it is therefore affirmed. | [
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Riddick, J.,
(after stating the facts.) This is a controversy concerning the title to certain lots and tracts of land formerly owned by the Kentucky & Arkansas Land & Industrial Company. The company mortgaged the lands, and, failing to pay its debt thus secured, the lands were sold under the power contained in the mortgage, and purchased by one Bergholz. He in turn sold to the Arkansas City Improvement Company, one of the parties to this action. It is admitted that this mortgage, upon which the claim of the Arkansas City Improvement Company to these lands is based, was executed and recorded before the commencement of either of the attachment suits upon which, and the judgments and orders rendered therein, the other claimants rest their several claims to the ownership of the land. If the lien given by this mortgage upon the land was superior to that acquired by the attachment suits, then the title of the party holding under the mortgage sale is [superior to that acquired by those purchasing under sales had in the attachment proceedings.
It is not claimed that there was any defect in the execution of the mortgage itself, but it is asserted that it was never acknowledged as required by statute, and that for this reason, under our law, it was not a lien upon the land as against the attaching creditors. Counsel for Steers contend that the certificate of the notary public attached to the mortgage shows that there was in fact no acknowledgment to the mortgage, but only an affidavit, and that for this reason the statute curing defective acknowledgments does not apply. Now, the acknowledgment of a deed is a declaration or admission made by the party executing the deed to a public officer having authority to take such acknowledgments that it is his deed and executed by him. Bouvier’s Law Diet. (Rawle’s Ed.) Our statute prescribes a particular form, with which a substantial compliance is necessary. The certificate of the notary attached to the mortgage shows that the statute was not followed, but still we think that this certificate shows an acknowledgment, though a defective one. A corporation acts by its agents, and the deed in this case was executed by the president of the corporation, and attested by the secretary. The certificate of the notary public shows that the president appeared before him, and stated under oath that the seal of the corporation had been affixed to the deed by virtue of a resolution of the board of directors, and that he and the secretary had each signed the deed by virtue of such resolution. This was in effect an acknowledgment that he had executed the deed, and the fact that this declaration or admission was made under oath cannot change its nature. Chouteau v. Allen, 70 Mo. 290.
While the acknowledgment was defective, it was cured by the act of March 11, 1891, curing defective acknowledgments. The statute in question provides that it shall not apply “to any conveyance or other instrument in writing when the same is brought in question in any suit now pending in any court in this state.” The attachment suits brought by Steers & Co. and by Kinsey were pending at that time, but we are unable to agree with the contention that these suits brought in question the mortgage under which the Arkansas City Improvement Company claims the land; for, whether the mortgage was good or bad, the lands were subject to attachment. The fact that one mortgages his land to secure the claim of a creditor does not prevent his other creditors from levying an attachment upon the land, though, if the mortgage be valid, and has been properly recorded prior to the attachment suits, the attachment lien will be subject to the mortgage. In such an action the mortgagee is not required to be made a party. The recovery of judgment and sale of the land in the attachment suit does not affect his rights, the validity of his mortgage not being questioned by such action. The lien or title acquired by the attaching creditor may furnish a basis for another suit or proceeding by which the validity of the mortgage may be questioned, but the action of attachment itself does not question it, for the right to maintain such action does not depend upon the invalidity of the mortgage. After the land had been sold in the attachment proceeding, the purchasers thereof, or those holding under them, brought this action, which does question the validity of the mortgage given by the Kentucky & Arkansas Land & Industrial Company; but these actions were commenced after the passage of the statute referred to above. And if the statute made the mortgage valid as to the attaching creditors, the rights of those holding under the mortgage could not be affected by the present suit. The statute cured defects in the acknowledgment to the mortgage, and gave it, except as to persons having acquired vested rights in the land before the passage of the acts, the same force and effect it would have had, had it been properly acknowledged in the first instance.
.The only question that remains, then, is whether the parties who brought the attachment suits acquired vested rights in the land by the bringing of the suits and the levy upon the lands. Now, a vested right “must be something more than a mere expectation based upon the anticipated continuance of existing laws. It must have become a title, legal or equitable, to the present or future enjoyment of property,” in some way or another.' Black, Const. Law, 430; Sutherland, Stat. Const. § 164. But parties have no vested rights in remedies or matters of procedure, and we see nothing in these attachment proceedings that constituted a vested right on the part of the plaintiffs therein to the property attached. The attachments were levied upon the land after the mortgage under which the Arkansas City Improvement Company holds had been executed and recorded, and we think that it was within the power of the legislature to give to such mortgage the effect intended by the parties thereto, by curing the formal defect in the acknowledgment. Rosenthal v. Wehe, 58 Wis. 621; 6 Am. & Eng. Enc. Law (2d Ed.) 947; Stephenson v. Doe, 8 Blackford, 508, S. C. 46 Am. Dec. 489; Butler v. Palmer, 1 Hill (N. Y.) 324.
We are therefore of the opinion that the mortgage under which the improvement company claims the land was, after the passage of the act of 1891, superior to the liens acquired by the attachments. The attachments were subject to the mortgage, and the title acquired by the improvement company under the mortgage sale to the lands conveyed by the mortgage is superior to that acquired by those who purchased these same lands at the sale ordered to satisfy the judgments obtained in the attachment suits.
It is stated in the argument of counsel for Kinsey that certain of the lands attached and purchased by Post & Co., and which are now claimed by Kinsey, were not included in the mortgage above referred to. As to such lands, and as to the lien declared in favor of Steers & Company for sums expended in paying taxes upon the lands and redeeming them from tax sales, the judgment of the chancellor is affirmed, but as to the title of the lands described in the mortgage, the decree is reversed, and the cause remanded, with an order to enter a decree in favor of the Arkansas City Impi-ovement Company, as suggested in this opinion. | [
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Humphreys, .J.
This suit was instituted in the Desha circuit court, by appellant J. C. Rapp, against J. L. Parker, appellee, for damages on account of slander.
It is alleged that the appellee on several occasions, without right, truth or authority, did unlawfully and maliciously slander and speak wrongfully and falsely of appellant, as follows:
“1st. That on or about October 15, 1915, the said ‘ defendant, in Desha county, Arkansas, did falsely charge and utter to and in the presence of Hilliard Miles, that the said plaintiff had been guilty of a dishonest and unlawful transaction, towit: the act of voting twice in an election held in Desha county, towit: An election for the office of drainage commissioners of the Cypress Creek Drainage District on the-Monday of April, 1915, by voting once'for Ed Warrington and at the same election voting for one Scott McGehee, unlawfully and in violation of law. The effect of which charge so falsely made was to injure the business standing and bring into disrepute the good name and character of this said plaintiff.
“2nd. And further, about the 15th of September, 1915, a previous slander of like kind was made by this defendant against this plaintiff as follows: On said date in Desha county, Arkansas, the said defendant did invite one Ed Warrington into his private office in the court house in Desha county, Arkansas, and then and there did lock the door, draw the blinds and turn on the light and in the presence of two friends and associates of the said defendant, towit: F. M. Rogers and G. C. Hemingway, open a ballot box and take therefrom a tally sheet and poll book of the election held for drainage inspectors of Desha county, Arkansas, on the-Monday of April, 1915, and exhibit said tally sheet with the pretended name of this plaintiff appearing thereon as a voter at said election for Scott McGehee and did then and there assert, utter and charge that the said plaintiff had at said election unlawfully voted twice for drainage inspector, once for Ed Warrington and once for Scott McGehee, unlawfully, in violation of law, and attempt to prove the said charge by exhibiting the said tally sheet to the said Warrington with the name of this plaintiff falsely appearing thereon. The effect of which charge was to injure the business standing and bring into disrepute the good name and character of this plaintiff.
“3rd. And on other and further occasions within the year 1915, the said defendant did falsely charge and utter the same slander in the presence of Frank Bond and later in the presence of Sam Defer. That each of the said charges so made against this plaintiff was false and untrue, recklessly and maliciously made.”
Appellee filed a motion to require appellant to make his complaint more definite and certain, as follows:
“Comes the defendant and moves the court to require plaintiff to make the complaint herein more definite and certain, and for cause says:
1. That the first paragraph of the complaint does not set out the language alleged to have been addressed to Hilliard Miles, but only the substance thereof.
2. That second paragraph of the complaint does not set out the language alleged to have been addressed to Ed Warrington in the presence of F. M. Rogers and C. C. Hemingway.
3. That the third paragraph of the complaint does not set out the language alleged to have been addressed to Frank Bond.
4. That the fourth paragraph of the complaint does not set out the language alleged to have been addressed to Sam Defer.
5. That the complaint does not specify the name of the precinct of which the ballot box, tally sheet and poll book therein referred to purport to evidence the returns of said election.”
The trial court sustained the motion because the appellant had not set. out the exact language used by appellee toward and about appellant.
Appellant declined to plead further and the court entered final judgment dismissing the complaint at appellant’s cost.
The sole question in the case is whether in charging slander it is necessary to set out the defamatory words. The reasoning of the cases decided by our own court, on the various phases of slander and libel, unerringly point to the conclusion that a slander by words must be charged by setting out the specific words used. This court said in the case of Jackson v. Williams, 92 Ark. 486, that “In actions for slander or libel the words are to be taken in their plain and natural meaning, and to be understood by courts and juries as other people would understand them, and according to the sense in which they appear to have been used and the ideas they are adapted to convey to those who heard or read them.” Unless the words used were set out, it would be impossible for judge or jury to properly construe them. In the case of Laster v. Bragg, 107 Ark. 74, this court took occasion to say in substance that it was not necessary to prove all the words alleged as spoken by a defendant, but it was necessary to prove a sufficient number of the words to sustain the cause of action. It was clearly pointed out in that ease, as well as in the later case of Waters v. Moore, 122 Ark. 250, that there must be no material variance between the defamatory words alleged and the proof thereof. The great weight of authority is to the effect that the defamatory words must be set out in haec verba. See ease note to 9 A. and E. Ann. Cas. at p. 495. The decisions of this court on the necessity of particularity of allegation in slander and libel suits seem to be in line with the weight of authority. The whole trend of the complaint was to charge the substance and effect of the language used instead of pleading the specific language and the setting thereof. The language, its setting, and circumstances under which used, are matters of allegation and proof—effect and conclusions are questions for judges and juries.
Treating the complaint as a cause of action defectively stated, a motion to make more definite and certain was the proper pleading to file; and when said motion was sustained, if the plaintiff refused to make the complaint more definite and certain in the manner required by the court, the only course open to the court was to dismiss the complaint. Treating the complaint as stating ho cause of action, it was within the province of the court, when plaintiff failed to state a cause of action, to treat the motion as a demurrer and dismiss the complaint.
Finding no error in the record, the judgment is affirmed. | [
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Wood, J.
This suit was brought by the building and. loan association to foreclose a mortgage executed by Jones and his wife on certain land. The complaint also set up the right of the appellant to be subrogated to a mortgage of one D. L„ Coleman, which a part of the money borrowed from appellant had been used to satisfy. The defense was usury, and the failure of Mrs. Jones to acknowledge the mortgage so as to convey the homestead under the act of March 18, 1887. The trial court held: (1.) That the mortgage was not properly acknowledged in accordance with said act, and was therefore void. (2.) That there was no usury in the contract. (3.) That appellant was not entitled to subrogation. (4.) That appellant was entitled to personal judgment for the amount claimed, and judgment was so rendered.
We have carefully considered all the points raised, and find no error in the ruling of the court except in refusing to foreclose the mortgage.
Peter C. Jones was a married man, and had a large family. At the time of the application for a loan, and the execution of the mortgage, he resided with his family at Mineral Springs, in Howard county, on land which belonged to his wife’s mother, where he had lived for several years. In the application which Jones made to the appellant for the loan he was asked'this question: “Is this property your homestead?” and he answered, “No.” He also swore to the application, using the following language: “I, Peter C. Jones, the above-named applicant, do solemnly swear that the foregoing statements, facts and answers to the questions are absolutely and unqualifiedly true; * * * that I am the same person who made and subscribed the within and foregoing application for the advance; that I made the statements therein for the purpose of obtaining the advance, and that I fully understand that the advance, if allowed, will be made with reliance on the truth of the statements therein given, and that each and every statement made in the foregoing application is true. I also agree that the above application shall be a part of the contract between myself and the association, and I bind myself, heirs and assigns, to faithfully perform all conditions, agreements and promises contained therein. [Signed and sworn to.]
“Peter C. Jones.” ■
The application was made on the 2d day of January, 1895. The mortgage in suit was executed on the 12th day of March, 1895. The above facts show clearly that Peter C. Jones, the husband and father, before and at the time of the execution of the mortgage, had abandoned his homestead. He was not living on it; and the answer in the application, and his sworn statement, made for the purpose of obtaining the loan, show that he did not claim, nor intend to claim, it as his homestead. While the act of March 18, 1887, is a limitation upon the right of the husband to convey his homestead except by the consent of his wife, it does not in any manner affect or restrict his right of abandonment. This right he has by virtue of his marital and parental authority, and when he has chosen to exercise it, as he did here, he renders the property which had formerly been his homestead the proper subject of alienation without his wife’s concurrence. Thompson on Homestead and Exemptions, §§ 42, 276, 483; Titman v. Moore, 43 Ill. 169, 174, et seq.; Guiod v. Guiod, 14 Cal. 506; Thoms v. Thoms, 45 Miss. 263, 276; Story, Confl. Laws; Williams v. Swetland, 10 Iowa, 51.
He could not be heard after the execution of the mortgage, under the circumstances, to say that he had not abandoned his homestead; and if there was an abandonment by him, his wife is bound by it. In Sidway v. Lawson,58 Ark. 117, we said: ‘‘The husband could abandon the homestead, and it would become liable to his debts, notwithstanding the act of March 18, 1887.” See also Pipkin v. Williams, 57 Ark. 242.
The view we have thus taken renders it unnecessary to discuss the other interesting questions upon which we think the court correctly ruled. Reversed, and remanded for further proceedings not inconsistent with this opinion. | [
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Smith, J.
The issues presented on this appeal sufficiently appear from the recitals of the judgment from which this appeal comes. This judgment reads as follows:
“On this day these two causes, being consolidated, coming on to he heard, the State being present by Hon. George H. Holmes, prosecuting' attorney, and the defendants being present by their attorney, E. P. Toney, and both sides agreeing to submit the cases to the court upon an agreed statement of facts, which was done, and, after argument of counsel, the court finds:
“That Will Craig is a resident of Chicot County, Arkansas, and hunted deer in said county without having-paid a State license so to do, but had paid for a Chicot County license.
“That Claud Brooks is a resident of Ashley County, Arkansas, and hunted deer in Chicot County, Arkansas, with dogs, and had not paid State license on dogs but had paid Chicot County license on dogs.
“That both cases arise under the 1923 special act numbered 678, approved March 26, 1923.
“That so much of § 4773 of Crawford & Moses’ Digest, and so much of § 4778 of Crawford & Moses’ Digest as requires a State license on dogs, as well as a State license to an individual, to hunt in Chicot County, Arkansas, was superseded by said special act numbered 678 of the Acts of the General Assembly, approved March 26, 1923, and said special act repealed that part of said sections of Crawford & Moses’ Digest (in so far as.it applied to Chicot County).
“It is therefore by the court ordered and adjudged that the said 19'23 special act, numbered 678, supersedes that part of §§ 4773 and 4778 so far as a State license for dogs or for men to hunt in Chicot County, and that part of said Crawford & Moses’ Digest is repealed.”
The controlling question is the one of law, whether special act 678 of the Acts of 1923 (Special Acts 1923, page 1771) supersedes §§ 4773 and 4778, Crawford & Moses’ Digest, in so far as they apply to Chicot County. The court below held that they did, and we concur in this view.
Another statement of the question is, whether, having taken out a license required by the special act, the defendants were required also to take out a State license to hunt in Chicot County.
Sections 4773 and 4778, Crawford & Moses’ Digest, are parts of act 276 of the General Acts of 1919 (General Acts 1919, page 204) creating the Fish and Game Commission. This is a comprehensive act for the protection of the wild life of the State. Section 4 of this act, which appears as § 4773, Crawford & Moses’ Digest, fixes the State license fees for hunting and fishing. Section 9 of this act, which appears as § 4778, Crawford & Moses’ Digest, makes it unlawful to hunt any deer, etc., with a dog without first procuring a license for each dog so used, for which license the sum of $1.50 shall be paid.
At the 1923 session of the General Assembly, special act 678 was passed (Special Acts 1923, page 1771), which was an act entitled, “An act to increase, propagate, preserve and protect the game and fish of Chicot, Desha and Phillips counties, Arkansas, and for other purposes.” This act provides a comprehensive system for the protection of game and fish in the three counties named, and leaves no doubt that it was intended to supersede the general game and fish law in those counties. The special act 'embraces many subjects comprehended in the general fish and game law, and many of its provisions are similar, if- not identical. This special act was passed prior to the adoption of the constitutional amendment prohibiting the passage of local or special hills, and was upheld as valid legislation in the case of Merritt v. Gravenmier, 169 Ark. 779, 277 S. W. 526, where it was said: “The General Assembly of 1923 enacted still another local statute (Acts 1923, p. 1771) covering Chicot, Desha and Phillips counties, and providing a complete game and fish law for these three counties, with six game commissioners, two from each county, to enforce its provisions. This statute contains a complete scheme for the protection of game and fish and the regulation of taking the same, similar to the general statutes of the .State creating the Pish and Game Commission. This statute provides for license fees similar to the general law for taking game and fish, prescribes open seasons and closed seasons, a daily hag limit and catch, and requires all persons fishing or hunting to pay a license except persons under sixteen years of age.”
Section 5 of special act 678 provides, in separate paragraphs, the fees to he paid in each of the three connties there included. The portion of this section relating to Chicot County reads as follows:
“For Chicot County.
“1. Every person fishing with artificial bait shall pay the sum of one ($1) dollar and ten cents ($0.10).
“'2. Every person a resident of Arkansas and over the age of sixteen years who desires a license to kill any kind of game in accord with the provisions of this act, shall pay an annual license of five ($5) dollars and twenty-five cents ($0.25). Provided, that should such person desire to secure license without the privilege of hunting or killing hear, deer and turkeys, such license shall be the sum of two dollars and twenty-five cents ($2.25). Every person keeping a dog for the purpose of hunting deer or quail shall, before using such dog, secure a license for such dog and pay therefor the sum of one dollar and ten cents ($1.10), as other licenses herein provided for are paid. ’ ’
We think the effect of this special act is to prescribe the license fees to he paid in the counties of Chicot, Desha and Phillips, and that these license fees are not in addition to the fees charged and collected by the State Fish and Game Commission under the general statute, hut are to their exclusion. In other words, to hunt and fish in Chicot County one is required to pay only the fees for hunting and fishing in that county, and is not required to pay the State license fee in addition. The defendants paid the fees required in Chicot County, and are not required to pay any other.
At the 1927 session of the General Assembly an act was passed numbered 160 (Acts 1927, page 556), entitled, “An act to protect and propagate game birds and animals and other wild life, to regulate the taking thereof, and for other purposes.”
This act of 1927 contains various regulations in regard to hunting and fishing which we need not consider, as that act expressly provides that it shall not repeal special act 678 of the General Assembly of 1923 except in so far as it affects the open and closed seasons and bag limits for game and the provisions of the special act in regard to fishing with artificial bait.
As the provisions of the special act have not been repealed in so far as they relate to the charge against the defendants in this case, who have complied with this special act, the judgment of the court below must be affirmed, and it is so ordered.
Mehaeet, J., dissents. | [
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Wood, J.
This is a petition to quash, on certiorari, a decree of the Hempstead chancery court in the case of David and Harriett Green against D. M. Goodlet, administrator of the estate of H. K. Lyons, deceased, et al. The petitioner, after alleging that he was one of the defendants in that case, sets forth, as grounds for setting aside the decree, that on the 28th day of August, 1897, W. S. Eakin, as attorney for Green and wife, the plaintiffs in the suit, did on August 28, 1897, dismiss the suit befoi’e the clerk of the Hempstead court, in vacation, as to W. T. Lyons, petitioner, and that afterwards, on October 14, 1897, the plaintiffs in the suit obtained judgment against petitioner, and had a lien declared upon his land; that the court had no jurisdiction of the person or property of petitioner, as he was not served with notice after the action had been dismissed, nor did he appear in person, nor authorize any one to appear for him in the action. The return to the writ of certiorari shows that on August 26, 1897, the following entry was made in the ease of David Green and Harriett Green, plaintiffs, against D. M. Goodlet, administrator of estate of H. K. Lyons, deceased, et al., to-wit: “Comes W. S. Bakin, attorney for plaintiffs, and on his motion this cause is dismissed as to D. M. Goodlet, administrator of W. W. Goodlet, Rebecca Brown and J. C. Brown. Teste: Geo. W. Sandefur, Clerk, by L. B. Monroe, D. C.” Also the following: “Before the clerk in vacation, August 28, 1897. David Green and Harriett Green, plaintiffs, against D. M. Goodlet, administrator of the estate of H. K. Lyons, deceased, * * * W. T. Lyons,” et al. Comes W. S. Eakin, attorney for plaintiffs, and on his motion this case is dismissed as to W. T. Lyons. Teste: Geo. W. Sandefur, Clerk, by L. F. Monroe, D. C.”
After this the decree was rendered against the petitioner, W. T. Lyons, on the 14th day of October, 1897, which he here seeks to annul. It is not denied that petitioner had no other or further notice after these entries. In other words, the only service upon him was that had when the suit was begun. The respondents insist that the petitioner is not entitled to the relief sought for three reasons, viz.: “(1) He was guilty of laches in not applying sooner for relief by this proceeding; (2) his proper remedy is by appeal from the judgment of which he complains; (3) the court of equity rendering the judgment had complete jurisdiction of his person and property at the time the judgment was rendered.” Considering these in the order presented by counsel, we are of the opinion:
First, that the petitioner is not barred by laches. Even if petitioner had knowledge of the judgment from the date of its rendition, a delay of ábout thirteen months before seeking to have same set aside would not subject him to the charge of laches, when it appears that no efforts had been made in the meanwhile to enforce the judgment. The petitioner, we observe, gave notice that he would apply to have the judgment quashed some fourteen days before the owners of the judgment advertised the land for sale under execution. Petitioner could hardly be said to have shown any sort of acquiescence in a judgment which he sought to avoid even before any effort was made by the owners thereof for its enforcement. “What delay must be regarded as so unreasonable as to preclude the complainant from resorting to this writ” is not settled by the authorities. Each case must depend upon its own peculiar facts Respondent cites us to Keyes v. Marion County, 42 Cal. 252, where a delay of one year was held, under the circumstances of that ease, to be fatal. But the facts of that case were so different from those at bar as to render it valueless as an authority for respondent’s contention. The rule, as stated by this court, “is to refuse the writ when the party seeking it fails to show that he has proceeded with expedition after discovering that it was necessary to resort to it.” Black v. Brinkley, 54 Ark. 375. The application of the rule to the facts of this ease does not call for a denial of the relief sought.
Second. The remedy of petitioner was not by appeal; for, if his contention be correct, he was not a party to the record when the judgment was entered, and had no notice of the proceedings subsequent to the dismissal of the case as to him, and hence no opportunity to be made a party, and therefore no right to appeal.
Third. Counsel insist that the court had jurisdiction of the person and property of petitioner at the time of the rendition of the decree, for the reason (1) that “the petitioner was a party to an injunction proceeding, growing out of, and a part of, the suit decided by the chancellor at the time of the rendition of the decree.” The facts concerning this are substantially as follows: Respondents (plaintiffs in the suit in which the judgment here in question was rendered) prayed an injunction against defendant D. M. Goodlet, administrator, to restrain him from collecting rents from their lands to satisfy a judgment of the probate court against the estate of H. K. Lyons, deceased. The prayer for injunction was predicated upon a recital of facts setting up their equities. Defendant Lyons, the petitioner, in his answer to the original complaint, “reiterates that part of the plaintiffs’ complaint wherein they pray an injunction against D. M. Goodlet, as the administrá tor of suid estate, restraining said administrator from collecting rent on said land, and prays that the land now held by him be included in said injunction.” Petitioner joined in the execution of the injunction bond, and his land and property were included in the writ of injunction issued in the case. The order granting the injunction was that D. M. Goodlet, administrator, etc., be estopped and enjoined “until the further order of the court.” This order for injunction was made October 9, 1896. The next entry of record in the case was that before the clerk in vacation August 26, 1897, supra, where W. S. Eakin, attorney for plaintiffs, dismissed as to D. M. Goodlet, administrator, W. W. Goodlet, Rebecca Brown and J. C. Brown, and the next was that before the clerk in vacation August 28,1897, supra, dismissing as to W. T. Lyons. If these dismissals were valid, at the time the judgment was rendered there were no parties to the suit except the plaintiffs and Mitchell and Hyatt All the other parties had been eliminated by these dismissals in vacation. So that, when the final decree was rendered, the party against whom the injunction had been granted, and the petitioner, Lyons, who had joined in asking the injunction, were both out of the case. The dismissal of the case as to them ipso facto dissolved the injunction. The chancellor seems to have recognized that fact in the final decree, for that contains no reference to the injunction. (2) It is urged, as a further reason why the court had jurisdiction of the person and property of petitioner, that the record does not import absolute verity, and that the deputy clerk had no power to enter up the order and sign same in vacation, so as to make it valid and binding on the parties. And, again, that the .order as entered did not reflect the facts, and that proof may be considered here to show what the plaintiff actually did and intended to do before the clerk. A dismissal by the plaintiff in vacation is expressly authorized by the statute (section 5792 of Sandels & Hill’s Digest), and what the plaintiff did through his attorney he did himself. It was proper for the clerk, as the custodian of the record, to enter up the order of dismissal at the request of the plaintiff. If, by any misprision of the clerk, the actual order desired by the plaintiff as to the dismissal was not entered, that could and should have been corrected in the circuit court before the final decree was taken by proper notice and proceedings. It is too late to do so here. We have to do in this proceeding only with the record as it is. Oral proof is not authorized before us to change it.
It follows that the judgment, in so far as it affected the petitioner, was coram non judice and void. The same, therefore', as to him, is hereby quashed, set aside, and held for naught. | [
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Butler, J.
This is an appeal from judgments in favor of the appellees in suits for personal injuries and property damage alleged to have been sustained by them. The occurrence which gave rise to the litigation happened on December 12, 1931, when a truck owned by the appellant and driven by his son, J. B. Waddington, collided with an automobile belonging to the appellee, Dr. L. L. Marshall, in which the other appellees were riding.
It is admitted that the evidence is sufficient to sustain the finding that J. B. Waddington was negligent, in the operation of the truck driven by him, and the only point urged here is that there was an absence of proof showing that J. B. Waddington was the servant, agent, or employee of the appellant at the time of the accident. Both the appellant and his son, J. B. Waddington, testified in round terms that there was no connection between them in a business way; that each was engaged in a business, which, though similar in nature, was wholly independent. They were engaged in selling and delivering oatmeal cookies manufactured by Mrs. Mamie Ashton. They testified that each had a separate territory; that the appellant used a Chevrolet sedan and J. B. Waddington used a truck in working their respective territories; that they were not partners or connected in any way in business, and, while the truck was the property of appellant, J. B. Waddington, his son, rented it from appellant and paid for its use at the rate of ten cents for each package of cookies he distributed amounting to about $3 per day.
Mrs. Ashton testified that she had a contract with the appellant and J. B. Waddington by which they worked on a commission basis independent of her; that they would take the goods out, sell them, pay the witness the wholesale price and retain the profit; that the Wad-dingtons divided the routes between themselves and she kept separate accounts with them; that when J. B. Wad- dington bought cookies the charge was entered on his account and he settled with the witness. At one point in her testimony witness stated that J. B. Waddington always drove the truck and appellant drove the car.
It is insisted that this is all the testimony relative to the relationship between the appellant and J. B. Wad-dington, father and son, and that this fails to show any business connection between the two, either as partners or as employer and employee, and that the court should have directed a verdict for the appellant. We do not accept this contention. It is true that the Waddingtons testified emphatically that there was no business connection between them, but the jury was the sole judge of their credibility, and it did not believe what they said. Waddington, Jr., had also testified as emphatically regarding the collision as he did regarding the business relation with his father and his testimony was in direct conflict with that of disinterested bystanders who witnessed the accident. J. B. Waddington had no separate contract with Mrs. Ashton. The contract was between her as party of the first part and E. Gr. Waddington and J. B. Waddington as parties of the second part, and it, of itself, indicated that they were jointly engaged in the enterprise.
The undisputed facts are that the appellant had been in the business for four years before his son became interested; that this son was a high school boy in May, 1930, having graduated about that time. The record does not show whether he was a minor or not on the 12th day of December, 1931, or upon the date the contract was entered into, October 22, 1931. About the latter date however the appellant asked Mrs. Ashton if it would be all right for Jimmie (J. B. Waddington) to help him in the business and upon"her agreeing to this a joint contract was entered into. The Waddingtons made their own arrangements for separate routes. The truck which J. B. Waddington drove belonged to the appellant, and he kept it in repair, and, while Mrs. Ash-ton at one time stated that J. B. Waddington always drove the truck, in answer to a question by a juror she replied that both drove it from time to time. At the time of the accident the appellant was out of the State visiting in Illinois. Just how long he had been away and the date of his return was not shown, but during his absence J. B. Waddington was running the entire business. Mrs. Ashton testified that during the absence of the appellant, his son, J. B. Waddington, bought all the cookies which were handled under the contract in question.
J. B. Waddington, while testifying, was asked “When he (appellant) was out of the city, you had the whole territory?” He answered, “I had serviced his territory for him.” He was further asked, “You didn’t buy separately when he was out of town and you were running his route for him?” He answered, “I bought cookies for his territory under his account.” We think this testimony of J. B, Waddington and the circumstances connected with the operation of the business was substantial evidence to warrant the jury in the conclusion it reached, and the judgment is affirmed. | [
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Humphreys, J.
Appellant instituted this suit against appellee before S. H. Smith, a magistrate, in Center township, Polk County, on June 13, 1916, to recover $90 on an account for sixty thousand staves, property claimed by appellant and alleged to have been wrongfully purchased from Jones & Lovett and appropriated to the use'of appellee.
An attempt was made to serve appellee under Act 98 of the Acts of Arkansas, 1909.
Appellee appeared for the sole purpose of filing the following motion to quash the summons, towit:
“Comes the defendant in this cause, and appears solely for the purpose of this motion, and for no other purpose, and moves the court to quash the service of summons upon the defendant herein, and for causes states: That the defendant is a corporation organized under the laws of the State of Arkansas, with its domicile and principal place of business in Ashdown, Little River County, Arkansas, and has no principal office, branch office or place of business in Polk County, Arkansas, and its chief officer does not reside in Polk County, Arkansas; and that it does not maintain a branch office or other place of business, or any employee in charge of any office or place of business or other place of business in Polk County, Arkansas, and did not so maintain any such office or place of business as aforesaid in Polk County, Arkansas, at the time of the filing of this suit, or the service of the pretended summons herein, or since that time.
“Further states that the summons, as shown by the return thereof in this cause, was served upon W. H. Conger, who is simply one of the field men or traveling employees of this defendant, and not such a person that service may be had upon as against this defendant in this cause in said county.
“Wherefore, premises considered, prays that the service of summons be quashed herein and this cause dismissed.”
Upon hearing, the motion was overruled and appellee filed its answer to the merits, reserving in the answer its rights under the motion to quash service in the following language, towit: “Comes the defendant (referring to appellee) and without waiving its motion to quash service herein, or any of its rights thereunder, but renewing and insisting upon the same, for its answer states. * * *”
A. D. Dulaney, attorney for appellee, cross-examined witnesses introduced in béhalf of appellant who testified in regard to the merits of the cause.
A judgment was rendered by the magistrate in favor of appellant against appellee for $60, whereupon appellee immediately filed its affidavit and bond for an appeal from said judgment to the circuit court of Polk County.
The transcript of the proceedings before the magistrate was filed in the circuit court, and on the 17th day of the October, 1916, term thereof the court heard and sustained appellant’s motion to quash the service.
Proper proceedings were had, and the cause is here on appeal.
It is insisted that appellee entered its appearance:
First, by filing an affidavit and bond for an appeal from the judgment o'f the magistrate.
Second, by filing an answer in the magistrate’s court, joining issue on the merits of the cause.
Third, by a cross-examination of the witnesses on the trial upon the merits in the magistrate’s court.
In support of appellant’s contention, the following cases are cited: Harrison v. Trader, 29 Ark. 85; Holloway v. Holloway, 85 Ark. 431; Carden v. Bailey, 87 Ark. 230; Dunbar v. Bell, 90 Ark. 316; Foohs v. Bilby, 95 Ark. 302; Bixler v. Taylor, 122 Ark. 278. None of the cases are in point.
The case at bar is ruled by Spratley v. Louisiana S Ark. Ry., 77 Ark. 412. It was said by the court in that case, ‘ ‘ There is no doubt but that where a party who has not been served with summons, consents to a continuance, goes to trial, takes an appeal, or does any other substantial act in a causé, such party by such act will be deemed to have entered his appearance. But this rule of practice does not apply in cases where the party on the threshold objects to the jurisdiction of his person and maintains his objection in every pleading he may thereafter file in the case. Where he thus preserves his protest he can not be said to have waived his objection to the jurisdiction of his person.”
In the instant case, only two pleadings were filed by appellee. These were its motion to quash service, and the answer. In the motion to quash service, the pleading filed at the threshold, appellee objected to the jurisdiction of his person. In the answer filed by it, the protest was preserved.
The rule laid down in Spratley v. La. & Ark. Ry. Co., supra, was reaffirmed in the case of C., R. I. & P. Ry. Co. v. Jaber, 85 Ark. 232.
This being the only question presented, the judgment of the circuit court was correct and is affirmed. | [
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Humphreys, J.
The sole question presented by this appeal is whether the circuit court of Jackson County erred in dismissing appellants’ petitions to exempt Bicli-woods and Cow Lake townships from the county-wide stock law adopted by the voters of Jackson County at the general election on November 4, 1930, because said petitions for the exemption thereof were not filed before the county- court within three months after the adoption of the county-wide stock law. Under the law, as it existed when the county-wide stock law was adopted, a majority of the voters in any township in said county were privileged by petition within six months from the date of the adoption to exempt the township from the provisions of the stock law. A majority of the voters in each of said townships filed petitions for this purpose on February 23, 1931, more than three months after the adoption of the stock law by the counties; but, in the meantime, and before the petitions were filed, act 44 of the Acts of 1931 ■was passed amending § 324 of Crawford & Moses’ Digest as amended by act 206, Acts of 1925, by allowing petitioners in the several townships in said counties only three instead of six months in which to petition to exempt the townships after the adoption of the general stock law. The circuit court, on appeal from the county court, dismissed the petitions of appellants for the reason that they were not filed within the three months after the adoption of the general stock law.
Appellants contend that the court erred in dismissing the petitions for the alleged reason that the effect of the amendment changing the time from six to three months in which they might file petitions to exempt their townships from the provisions of the general stock law deprived them of vested rights. This argument would be sound if amendatory act 44 of 1931 swept away any contractual obligation or title, legal or equitable, to the enjoyment of property. The amendatory act operated upon a remedy only by changing the time from six to three months in which appellants might file petitions to exempt their townships from the provisions of the general stock law from the date of the adoption thereof. One does not have a vested right in remedies or matters of procedure. Steers v. Kinsey, 68 Ark. 360, 58 S. W. 1050; Little Rock Railway & Electric Company v. Dowell, 101 Ark. 223, 142 S. W. 165.
No error appearing, the judgment is affirmed. | [
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