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Carleton Harris, Chief Justice.
On October 12, 1956, around 6:40 p.m., an automobile collision occurred at the intersection of Main and Fourth Streets in the town of Bryant, Saline County, Arkansas, between automobiles operated by Leon Sullivan, who was traveling north on Main Street, and A. A. Fanestiel, who had been traveling south on Main Street, and at the time of the collision, was making a left turn into Fourth Street. Traveling in the Fanestiel automobile were five other passengers, Lena Fanestiel, wife of Mr. Fanestiel, Zora Reed and husband, and D. J. Wagner and wife. Mrs. Fanestiel and Mrs. Reed received personal injuries. On January 16, 1957, Sullivan instituted suit in the circuit court against Fanestiel seeking $1,400 for damages to Ms automobile, and $1,000 for personal injuries. Fanestiel answered with a general denial, and also filed cross complaint seeMng $300 for damages to Ms automobile, and $3,500 for personal injuries. Mrs. Fanestiel, Mrs. Reed and Mr. Wagner filed suit in tbe circuit court against Sullivan, asking damages for personal injuries allegedly sustained by them in the collision. By agreement of counsel, representing all parties concerned, an order was entered consolidating tbe cases for trial. On October 23, 1957, tbe cause proceeded to trial and tbe jury returned a verdict finding Sullivan 60% negligent and Fanestiel 40% negligent; finding Sullivan’s total damages as $1,528, Fanestiel’s total damages in tbe amount of $412, Zora Reed’s total damages as $1,552.38 and Lena Fanestiel’s total damages as $655.33. After making tbe necessary mathematical calculations pursuant to tbe comparative negligence statute (Act 191 of tbe General Assembly of 1955), and tbe necessary offsets, judgment was entered for Sullivan against Fanestiel in tbe sum of $364. Mrs. Reed was given judgment against Sullivan in tbe amount of $1,552.38, and Mrs. Fanestiel was given judgment against Sullivan in the amount of $655.33. From tbe judgment, appellant brings this appeal.
For reversal, Sullivan first contends that tbe trial court erred in refusing to instruct tbe jury relative to unavoidable accident, and second, that Interrogatory No. 6 (which prorated tbe negligence as 60% to Sullivan and 40% to Fanestiel) was concurred in by only eight jurors, and tbe verdict of tbe jury was accordingly void.
After an examination of tbe evidence, we have reached tbe conclusion that there was no error in tbe court’s refusal to submit tbe instruction on unavoidable accident. Appellant’s contention seems to be largely based on tbe fact that Fourth Street, east of tbe intersection, was narrow, with a narrow culvert and ditches along each side, precluding an angle turn. It is argued that bad it not been for tbe narrowness of tbe street and culvert upon which. Fanestiel was attempting to enter, he could have completed the turn and been out of the intersection before appellant’s automobile reached him. Of course, Mr. Fanestiel was in a position to observe the street when he got ready to make the turn, and further, Mr. Sullivan testified that Fanestiel cut in front of him when he (Sullivan) was not more than five feet from the intersection. Fanestiel testified that Sullivan “whipped around” another car, which had stopped and was waiting for him (Fanestiel) to make his turn, and struck him. “Of course, his car was coming so fast, it hit me. It hit me before I got clear across.” As stated in Uncapher v. Baltimore & O. R.R. Co., 127 Ohio St. 351, 188 N. E. 553:
“An unavoidable accident is such an occurrence or happening as, under all the attendant circumstances and conditions, could not have been foreseen or anticipated in the exercise of ordinary care as the proximate cause of injury by any of the parties concerned.
Can there be an unavoidable accident when one of the parties is negligent? Most certainly not.”
This collision was certainly caused by somebody’s negligence, and the jury found that both were negligent.
The case was submitted to the jury on six interrogatories. Four of these were signed only by J. C. New-comb, foreman, as the answer given by the jury was unanimous. One was signed by eleven jurors, including the foreman, and No. 6 appears as follows:
“If your answers to Interrogatories No. 1 and No. 3 are ‘Yes’, then answer this question: Using 100% to represent the total negligence involved in the collision, what percentage of negligence do you find attributable to each of the following parties?
Leon Sullivan:..................................................................60%
A. A. Fanestiel: ............................................................40%
(S) J. C. Newcomb Foreman
“Herbert James Sam Curtis Ernest J. Carlisle Eddie Hunnicutt Roy Martin Earl Crosswhite Henry J. Cohrt H. Montgomery”
Appellant contends that this interrogatory was only signed by eight members of the jury, such contention being based on the assumption that Newcomb signed merely as foreman. Appellant argues that, to concur in the answer to the interrogatory, Newcomb would have had to sign again. We do not agree. Article II, Section 7 of the Constitution of Arkansas, as amended by Amendment No. 16, states:
“The right of trial by jury shall remain inviolate, and shall extend to all cases at law, without regard to the amount in controversy; but a jury trial may be waived by the parties in all cases in the manner prescribed by law; and in all jury trials in civil cases, where as many as nine of the jurors agree upon a verdict, the verdict so agreed upon shall be returned as the verdict of such jury, provided, however, that where a verdict is returned by less than twelve jurors all the jurors consenting to such verdict shall sign the same. ’ ’
This interrogatory was signed by nine jurors. The word, “Foreman”, appearing under the signature of New-comb, is, in our view, mere surplusage.
Finding no reversible error, the judgment is affirmed.
Wagner took a nonsuit, and his suit was dismissed by the court without prejudice. | [
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Carleton Harris, Chief Justice.
This appeal presents the question of sufficiency of the evidence to warrant cancellation of a deed for failure of consideration, the consideration therefor being an agreement by appellees Holt to support and care for appellant Little for the remainder of his life. On January 15, 1952, T. E. Little, then 68 years of age, the owner in fee simple of a 107 acre farm in Washington County, executed and delivered to James and Arlene Holt, husband and wife, a warranty deed conveying said property to the Holts in consideration of their oral agreement to support and care for him for the balance of his life. Mrs. Holt is Mr. Little’s great-niece. Appellant lived with appellees on the said farm from shortly after that date until March 11,1957, at which time he commenced living at the Haws boarding home, near Fayetteville, where he has remained since that time.
On April 1, 1957, Mr. Little filed a complaint in the Washington Chancery Court, setting out the conveyance and agreement with the Holts, alleging that appellees had breached the agreement to support and care for him, and praying that the conveyance be cancelled and held for naught, and that the title to said property be decreed to be in him.
In the meantime, on March 12, 1957, the Holts had conveyed the property (87 acres, including improvements) to J. M. Summers and wife, which deed was allegedly also executed by T. E. Little.
The Holts answered with a general denial, further pleading laches and estoppel, and the Summers answered that they had received a deed from the Holts and Little; that they were bona fide purchasers for value without notice, and that Little was estopped to question the authenticity of either the deed executed and delivered by him to the Holts, or the one executed by him and the Holts to them. They further filed a cross-complaint against the Holts, stating that they had paid the latter $6,500 for the property, and asking alternative relief against them in said amount, should the conveyance he set aside, and praying a lien on the property. On trial of the issues, the court found for appellees Holt as against Little, and further dismissed the cross-complaint filed by the Summers against the Holts. From such decree dismissing his complaint, appellant brings this appeal.
Before entering into a discussion of appellant’s contention of a breach of contract by the Holts, we will consider the validity of the deed received by the Summers. This deed was admittedly signed by the Holts and allegedly signed by Little. Mr. Holt testified that he took the deed to Little at .the Haws home, and the old man signed it. G-oldie Jones, an employee of the Uni versity, was to take the acknowledgment, but was unable to go at that particular time. Approximately a week later she went to the home, along with Holt, his brother, and Mr. Summers and his son, to see Mr. Little for the purpose of taking the acknowledgment. From her testimony:
“At first he was confused, he didn’t know whether he had signed it or not, and the more he talked, he decided he didn’t sign it; however, I got his signature for my own personal benefit.
* * #
Well, I asked him if he would acknowledge his signature, and he looked at it awhile; well, he didn’t know whether it was or not, and then, he was a little confused and talked around there, and then he decided he didn’t. There ivas a lot of conversation.”
She further stated that Mr. Little told Mr. Summers that he had no objection to Holt selling the farm. From the testimony and a comparison of Mr. Little’s signature (taken from exhibits), with the signature on the Summers ’ deed, the court found that Mr. Little had executed the instrument. We are unable to say that this conclusion was incorrect. From cross-examination of the Holts, appellant’s counsel indicated that they attached some importance to the fact that Mr. Little’s signature was even obtained, i. e., if he had no interest in the property or if the contract had been observed by the Holts, why obtain a useless signature? We attach no significance to this fact. Under the agreement by which the Holts received the deed from Little, it would seem a proper precautionary step to take; however, the evidence reveals that this was done because of the requirement of an attorney examining the abstract, and acting on behalf of the purchasers. We consider that the Summers were innocent or bona fide purchasers for value.
We now turn to appellant’s contention that the court erred in holding that the evidence, offered in behalf of his allegations, was insufficient to establish a breach of the agreement by the Holts. In addition to the parties, eleven witnesses testified for appellant, and eight for appellees, though the testimony of one of appellant’s witnesses was probably more favorable to appellees than to appellant. Several of these witnesses were distantly related to appellant and Mrs. Holt. Appellant’s nearest relatives were nephews, but in the early part of 1951, Little, who had lived alone for several years, commenced living with the Holts. He lived in their home for eight months to a year before entering into the agreement, which is the subject of this lawsuit. Following the agreement, and execution of the deed, the parties moved to the Little home. There, extensive repairs, according to Mrs. Holt’s testimony, in the amount of approximately $3,000, were made on the premises by the Holts. In the fall of 1955, Mr. Little moved to a granary back of the house to live. Appellant says that these appellees forced him to move to this building, while the testimony on their part is that he asked to move out to himself, because the operation of a TV set, and the children’s noise disturbed him. A bed, stove, and chairs were placed in the granary, and repairs were made on the building for the purpose of making it more livable. The evidence disclosed, however, that wide cracks were left in some places, and the building was cold in the wintertime. In addition to being moved from tbe house, the evidence of mistreatment upon which appellant relies for a concellation of the contract, is briefly as follows. Mr. Little testified that the children mistreated him and would hit him; that Mr. Holt knocked him down on one occasion; that the family would not permit him to eat his meals with them; that they would lock him out of the house when away; that they gave him no money, and did not look after him. Several witnesses, including one of the nephews, testified that they went to the granary to visit appellant in approximately January, 1956, and found the place dirty, cold, and but little food on the premises. Little himself was dirty and clothes filthy; there was human excrement in the bed, on his person, and around the doorway. It appears from the evidence that the testimony of the several witnesses relative to these conditions, referred to this particular period, except the evidence of Mrs. Winifred Smith, a welfare worker, who found somewhat similar conditions on a visit about a year later. Henry Brewster, the nephew, testified that he visited his uncle from one to three times a year; that since Little started living with the Holts, he had visited him about eight times, and had found him in the granary twice — in January, and October of 1956. Following the first time he found appellant in the granary, complaint was made to the Holts, and the old man was taken back into the house. Subsequently, according to appellees’ testimony, again at Mr. Little’s request, the latter went back to the granary, and stayed there until March, 1957, when he went to the Haws Nursing Home. Appellant’s witnesses testified that Little lost a great deal of weight, and became quite feeble after taking up his abode with the Holts. We are a little prone to wonder, as did the Chancellor, why some of those who testified about the conditions in the granary, took no steps to aid appellant, not even to building a fire. Brewster made an affidavit relating the provisions of the contract, which was recorded at the court house, hut this, of course, was for the primary purpose of placing prospective purchasers of the property on notice, rather than bringing to Mr. Little any physical benefit. One could gain the impression that this nephew was possibly more interested in what happened to the property than what happened to his uncle. After one of the friends wrote a letter to the welfare department at Little’s request, Mrs. Smith, heretofore referred to, paid a visit. Appellant was declared eligible for welfare payments in May, 1956, and drew checks from that time. Little requested Mrs. Smith, in February, 1957, to help him get into the boarding home (apparently already aware of the existence of this home), and subsequently, was moved there. Mrs. Smith testified she advised him that his welfare check would be increased sufficiently to take care of the additional expense. The testimony reflects that after moving to the Haws boarding home, Mr. Little had a more robust appearance, ate well, kept his room tidy, was able to control his bowels, and went to the bathroom on necessary occasions.
On the other hand, the Holts testified that they took care of him in accordance with the living standard of the other members of the family; that he came to live with them while they still resided in Lincoln, and was taken into the home because none of the other rela tives would have him; that his habits, and failure to control his bowels, contributed to this reluctance by closer relatives. Mrs. Holt testified that she generally cleaned his room and washed his clothes twice a week, and never less than three times every two weeks. She stated that, while living in the house, because of the, fact that appellant would dip his hands into the food bowls on the table, he was placed at another table to eat by himself, but received the same food as other members of the family, and in whatever amounts he desired. After obtaining a job, in January, 1957, Mrs. Holt testified that she would prepare his meals before she left. She denied that Mr. Little had been locked out of the house, stating that only the front door was locked. Physical mistreatment of Mr. Little was denied, though she did say that on occasion, the young children would “pick at him,” for which she would whip them. Mr. Holt testified that he gave the old man $2 to $5 per week for tobacco and spending money, denied that he had ever physically abused appellant, stated that he was perfectly willing for Little to return and live with them, and that the agreement with the old man would be observed. The evidence reflects that the Holts called a physician to attend appellant on two occasions, it once being necessary to go after the doctor, as the telephone was out of order. Several witnesses living in the vicinity testified that Little had never complained to them about any mistreatment, and there was evidence to substantiate the Holts’ contention that Mr. Little went to the granary of his own accord. In short, the testimony in this case was in irreconcilable conflict.
We note that while appellant’s witnesses testified as to the weakened condition of Mr. Little, even their testimony reveals that he was able to visit his friends, some 2% or 3 miles away, once or twice per week. Mr. Little walked this distance, and on several occasions, bought a large sack of groceries in the Summers community, and carried it back home. We also observe the testimony relative to the changes in appellant’s attitude and habits after moving to the Haws home. It is nnnsnal for one to suddenly acquire the habit of tidiness, and to industriously clean his room, where he had not done so before. Likewise unusual is the fact that though unable to control his bowels for several years, this affliction ceased soon after appellant moved to different surroundings. One might well be led to believe, that because he was dissatisfied with the arrangements made, Mr. Little really did not make too much effort to look after himself until leaving the premises. While we consider that the conditions testified about in January, 1956, existed, and were extremely bad, still it must be remembered that Little had already lived with the Holts for close to five years, and there is no evidence, other than appellant’s testimony, which indicates any sort of mistreatment during that period. We do not consider the Holts responsible for the application for welfare assistance, since he first applied in 1948, several years before he started living with them; nor does the testimony reflect that the Holts ever received any part of his welfare check. We feel that important evidence as to whether appellees had observed their part of the contract, is shown by the introduction of Little’s application to the welfare department for assistance on May 1, 1956. Appellant was interviewed by Mrs. Smith, and she talked with him and filled out his application. Upon completion, she read the application to him, and he signed it. Paragraph B states: “The source of my (our) support during the past year has been: By Mr. and Mrs. Holt for more than five years.”
The testimony of the various witnesses, contradictory as it is, unquestionably makes this a difficult case to determine. Of course, under such circumstances, the finding of the Chancellor becomes even more persuasive. The trial court apparently listened intently to the testimony of the witnesses, and at the conclusion of the trial, rendered a lengthy oral opinion from the bench. A portion of that opinion indicates that the Chancellor was not too impressed by some of the testimony presented on behalf of appellant. It is true, that when simply read ing the evidence from the transcript as to conditions in the granary, one’s feelings are momentarily outraged, hut when observing a witness from the stand, noting his apparent interest or lack of same in the case, the manner in which he answers questions, such as extreme eagerness or hesitancy, etc., a court can receive an entirely different impression. This, of course, is the reason for the rule, that while we try Chancery cases de novo, the findings of the Chancellor will not be disturbed on appeal unless they are clearly against the preponderance of the evidence. After carefully studying the testimony and exhibits in this case, we are unable to say that the findings of the trial court are against the weight of the evidence.
Let it be remembered that the contract provides that the Holts shall take care of Mr. Little for the balance of his life. It is still their obligation, and if Mr. Little returns to their home, it is incumbent that they do so. The termination of this litigation in a manner adverse to appellant’s contentions, does not affect any future cause of action based upon a subsequent breach of the agreement. A refusal, or a failure, to properly provide for the old man could well subject the Holts to a suit for damages, based on a breach of contract. It may well be that if appellant has received careless attention in the past, this litigation may serve the useful purpose of providing more careful attention to his needs in the future.
Since this litigation involves title to real estate, the cause is remanded solely for the purpose of entry of a decree, declaring the Summers bona fide purchasers and quieting title in them as against the parties herein. In all other respects, the decree is affirmed.
Holt, McF addin and Ward, JJ., dissent.
He lived with the Holts from eight months to a year in their home at Lincoln before deeding his own property to them.
20 acres had several years earlier been conveyed to W. C. Little.
This conveyance was not filed for record until about an hour and a half after appellant’s suit was filed, but that fact is not material to determination of this cause.
On April 4, Little amended his complaint, setting out that he did not sign the deed to the Summers, that if his signature appeared, it had been obtained by trickery and fraud, and asked that the deed to Summers also be cancelled, set aside, and held for naught.
On an old envelope.
From the Chancellor’s oral Opinion: “But the thought that occurs to me is that if a person, a kinsman is found in such a terrible shape, a fellow ought to be able to overcome his inhibitions long enough to at least build a fire for him. Now, that is not to say that Mr. Beaty didn’t tell the truth when he testified as to what he found down there. But it just raises that question as to whether the actual suggested deplorable and terrible condition was quite as bad as Mr. Beaty let on that it was. The Court cannot understand why any person, white or black, finding any other person in a condition like that wouldn’t have done something about it, right then and there. And when asked why he didn’t try to do something himself to give the old gentleman some relief, Mr. Beaty said that he just couldn’t stand the smell, so he just left * * * Now, the same thing is true of Mr. Williams. He seemed to be rather worked up about the fact that the old man didn’t have money to pay for his haircuts and shaves, and appeared to be hungry, and dirty and ragged and messed up. But as far as actually doing anything to alleviate the situation, there is nothing Mr. Williams appears to have done. Perhaps he shouldn’t have done anything; perhaps there was nothing he could have done. But this sense of outrage which appears on the witness stand seems just a little bit off color when it is squared up with what it seems like a fellow would have done under the circumstances then and there.”
He first received $28 per month, then $31, and finally $60, after moving to the Haws home.
The Holts had five children, ranging in age from 7 to 13. | [
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William J. Smith, Associate Justice.
It appears that Mrs. Wilmer A. Bose filed a charge of insanity against her husband in the Probate Court of Arkansas County, Southern District, and following a hearing, without notice to him and at which he was not present, the court adjudged him insane and ordered him committed to the State Hospital for Nervous Diseases. This appeal is by C. P. Bose, father and next friend of Wilmer A. Bose.
The appellant has argued several points for reversal, one of which is the court’s failure to comply with the statutory requirement that a person be present before the court at the time his sanity is inquired into, Sec. 59-101, Ark. Stats. 1917. In the case of Monks v. Duffle, 163 Ark. 118, 259 S. W. 735, we discussed the-mandatory provision of this statute, stating:
“The order contains no recital that appellant was before the probate court when the condition of her mind was inquired into. Under Article 7, Sec. 34, of the Constitution of 1874, exclusive jurisdiction in matters relating to persons of unsound mind and their estates is conferred upon probate courts. Watson v. Banks, 154 Ark. 396. This jurisdiction can be exercised only in the special manner provided in Sec. 5829 of Crawford & Moses’ Digest, which is as follows: ‘If any person shall give information in writing to such court that any person in his county is an idiot, lunatic, or of unsound mind, and pray that an inquiry thereof be had, the court, if satisfied that there is good cause for the exercise of its jurisdiction, shall cause the person so charged to be brought before such court and inquire into the facts by a jury, if the facts be doubtful.’
“It will be observed that, in order to exercise its jurisdiction, it was necessary to have appellant before the court. Where the jurisdiction conferred upon a court must be exercised in a special manner, and not according to the course of the common law, it is necessary for the facts essential to the exercise of such jurisdiction to appear in the record. Oliver v. Routh, 123 Ark. 189; Massey v. Doke, Id., 211; Jones v. Ainell, Id., 532. The failure of the record to affirmatively show the presence of the appellant in court when the condition of her mind was inquired into renders the probate order void. The letter of guardianship must fall with the order. ’ ’
In the case of Hyde v. McNeely, 193 Ark. 1139, 104 S. W. 2d 1068, we said:
“The direction that the subject of the inquiry be brought before the court has been held to be mandatory, and an order which fails to recite such jurisdictional fact is void. ’ ’
It is undisputed that Wilmer A. Rose was not present at the time when the court adjudged him insane and ordered him committed. Accordingly, under the statute and eases, supra, the court was without jurisdiction to make the order and it must be reversed.
The circumstances in this case are quite different from those we had under consideration in Barbee v. Kolb, Superintendent, 207 Ark. 227, 179 S. W. 2d 701, wherein Barbee was seeking his release from the State Hospital for Nervous Diseases in a habeas corpus proceeding. During the hearing on his petition, Barbee established by his own witnesses that he was of unsound mind. In this case Rose has appealed from the order declaring him to be of unsound mind and we are called upon to determine whether there was reversible error in the proceedings in the trial court.
If Wilmer A. Rose is still confined to the State Hospital for Nervous Diseases, he should remain in protective custody while a hearing is had in compliance with the applicable statute, supra.
The order is reversed and remanded for further proceedings consistent with this opinion. | [
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Paul Ward, Associate Justice.
Appellees, Cordell L. Watt and his wife, brought suit against appellant, Farmers Union Mutual Insurance Company, on a fire insurance policy covering their dwelling and smokehouse which were completely destroyed by fire, and covering their cellar which was damaged by fire. The complaint contained all the necessary allegations to establish liability. Appellant’s answer consisted of a denial of each and every material allegation in the complaint.
The cause was tried before a jury, resulting in a verdict and judgment in favor of appellees as prayed. The record contains approximately 20 pages of testimony on behalf of the Watts, 10 pages on behalf of the insurance company, and 6 pages of instructions by the court.
On appeal appellant has not abstracted any of the evidence or any of the instructions. Thus it is seen that appellant has failed to abstract the record as required by Rule 9 (d) of this court.
For the above indicated failure to abstract the record this court must, under the holding in Porter v. Time Stores, Inc., 227 Ark. 286, 298 S. W. 2d 51 and other cases cited therein, affirm the judgment of the trial court, and it is so ordered.
Affirmed. | [
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Paul Ward, Associate Justice.
This appeal comes as an aftermath of a recent decision by this court, involving these same parties, rendered March 11, 1957; Weeks, et. al. v. McClanahan, 227 Ark. 495, 300 S. W. 2d 6. To understand the issue on this appeal it is necessary to set out briefly pertinent portions of the former decision. The parties involved were: Anderson, landowner; McClanahan, lessee, and; Weeks, a subtenant under McClanahan. The trial court in the first case rendered a decision in favor of McClanahan against Anderson (and also Alton Weeks) for double the rental value of 412 acres of land (at $18 per acre) on the theory that Anderson (the owner of the land) conspired with Weeks (who had subrented from lessee McClanahan for the year 1951) to keep McClanahan from getting possession of the 412 acres for the year 1952, in violation of Ark. Stats. § 50-509. This court, on appeal, held that the trial court erred in assessing double damages against Anderson instead of single damages, and remanded the cause to the trial court with instructions to correct that error.
Upon remand the trial court followed this court’s instructions and rendered judgment against Anderson for single damages in favor of McClanahan.
Anderson, appellant here, argues that the trial court should have reduced the judgment against him by the amount of rent which McClanahan was obligated to pay Anderson for the land. It is not disputed that McClanahan Avas to pay Anderson $11 per acre for the 412 acres of land for the year 1952.
On this appeal Anderson says: “The sole question is: Did the Circuit Court err in fixing the damages of appellee as to Anderson ... at one year’s rent based on a value of $18 per acre, instead of rendering judgment only for the difference betAveen the rent reserved and the rental value?” It is of course the contention of appellant that the trial court did so err, and it is the contention of appellee that the question raised by appellant was settled by the first decision rendered by this court. We find ourselves in agreement with appellee’s position for the reasons set out below.
On March 14, 1957, (6 days after the delivery of our first opinion), Anderson filed a Motion in this court to clarify the opinion and judgment. In that Motion Anderson raised precisely the same question which he raises here. He there stated: “That the term ‘single damages’ should be defined as meaning those damages determined by application of the usual and ordinary rule of measurement, that is, the difference between the rent reserved and the rental value of the premises.” A response was filed by McClanahan resisting Anderson’s motion to so clarify in which it was suggested that the “ordinary rule” relied on by Anderson did not apply when damages are assessed under Ark. Stats. § 50-509, and also that under our original opinion Anderson had already been given credit for the rental value of his land. The motion filed by Anderson was denied by this court.
We do not, at this time, attempt to revaluate the validity of the conflicting contentions presented by both parties presented on the said motion, but we do hold that our former opinion, together with our denial of the motion, constitutes the law of the case, and therefore settles the issue here against the contention of appellant.
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Carleton Harris, Chief Justice.
This case involves the provisions of Act 419, of the General Assembly of 1957, known as the Uniform Post-Conviction Procedure Act. Petitioner, Esaw Mitchell, was charged, by Information, on March 20, 1957, with the crime of first degree murder, it being alleged that he, with malice aforethought and after premeditation and deliberation, murdered George Beyerlein, Sr. On October 22,1957, the cause came on for trial, at which time petitioner’s attorneys and the prosecuting attorney entered into an agreement that if Mitchell would plead guilty to the charge, the State would not request the death penalty, and would agree to a sentence of life imprisonment. The plea was entered, and a jury impaneled to hear the evidence. The State then put on sufficient evidence to -make a prima facie case, consisting of the evidence of officer O. A. Allen, who testified as to the oral confession made to him by petitioner, and the introduction of trousers, shoes, and other articles owned by petitioner, containing blood stains. The court then instructed the jury as follows:
“Ladies and gentlemen, you have one function in this case. You heard the State waive the deáth penalty and agree to accept life imprisonment in this ease. In a case of murder in the first degree, nobody but the jury can assess the punishment and of course, any other verdict that you might bring back except life imprisonment I would set aside. You have no choice and your verdict will be: ‘We, the jury, find the defendant guilty of murder in the first degree and fix his punishment at life imprisonment in the State Penitentiary.’ ”
The jury retired, and shortly returned with their verdict, finding petitioner guilty of murder in the first degree. Petitioner was then committed to the state penitentiary.
On December 17, 1957, Mitchell, while in the state penitentiary, filed a petition pro se asking for a new trial, and requesting that an attorney be appointed for him. Present counsel was appointed by the court, and filed an amended petition under Act 419 of the 1957 G-eneral Assembly of the State of Arkansas, challenging the legality of Mitchell’s incarceration. A hearing was held on the petition, at which time petitioner and his sister testified that they did not understand that a plea of guilty to first degree murder was being entered on the day of the trial, and petitioner stated he did not know that a judgment of life imprisonment was rendered, nor did he make any agreement with his attorneys to accept life imprisonment. Petitioner’s two attorneys (at the time of the trial) testified that they entered the plea of guilty to first degree murder after thoroughly discussing the matter with both petitioner and his sister. One of the attorneys testified that he told the sister that if Mitchell could get a life sentence, it should be accepted. This attorney testified that he talked with petitioner at the county jail on several occasions, and Mitchell agreed that he would like to get off with a life sentence. “He thought he could stand that, but he couldn’t stand that chair.” The attorneys both testified that the matter was explained to both petitioner and his sister, and that they appeared satisfied at the time. At the conclusion of the hearing, the court denied the petition, and this appeal follows.
For reversal, petitioner urges four points.
I.
That the Petitioner was denied due process under the 14th Amendment to the United States Constitution, and Article II, Sections 7 and 8 of the Constitution of Arkansas.
II.
That the Court failed to permit the jury to find the degree of the crime of murder in violation of Arkansas Statutes (1947), Section 43-2152.
III.
That the State failed to make a prima facie case of murder in the first degree.
IY.
That the Court directed a verdict of guilty in a felony case where the punishment for said crime was confinement in the State Penitentiary.
For purposes of discussion, these points will be, more or less, grouped together.
Petitioner was charged with Information filed by the prosecuting attorney, and was represented by competent and experienced counsel, retained for his benefit, and of his own choosing. On August 5, 1957, petitioner, through such counsel, filed a motion to quash the information, alleging that the oral confession was obtained after Mitchell had been held in custody for a long period of time, that petitioner had been threatened, physically abused, and subjected to psychological coercion; that he had been denied constitutional and statutory rights in that the arresting officers failed to take him forthwith before a magistrate, and that he had not been allowed to see or speak to any friend, close relative or attorney while being held in confinement; that the purported confession having been obtained under those circumstances, same was not competent evidence; that since the information had been issued solely upon the basis of this incompetent evidence, such information should be quashed. A hearing was held on this petition on August 12th, at which time Mitchell testified that he had been held in jail ten or eleven days before the statement was made, that he had been beaten and threatened by officers, and coerced into making a statement, though admitting that no one told him what to say, and that the statement was given in his own words. At the conclusion of the hearing, the court rendered its ruling as follows : ‘ ‘ The Court thinks it is premature, and I am overruling the motion to quash, holding that the information is good.”
On October 22nd, the case came on for trial, and after consultation between the prosecuting attorney and defense counsel, the plea of guilty was entered, and a jury selected and impaneled to hear the evidence. This plea of guilty was entered by petitioner’s counsel, according to their testimony, only after the proposed plea had been thoroughly discussed with petitioner on several occasions, and Mitchell and family were in the front of the court room when the plea was entered. To enter a plea of guilty in a first degree murder case is not unusual, and numerous cases in this state have been handled in exactly the same manner. It would appear that up to this point, there was nothing in the proceeding of October 22nd which did not fully conform to the requirements of the federal constitution, the state constitution, and our statutory law. It seems clear that both Mitchell, his family, and counsel, felt that his interest was best being served by entering the plea.
It is argued that the State failed to make a prima facie case of murder in the first degree, but we do not agree. A study of the transcript reveals ample evidence to sustain a first degree murder conviction. No point would be served in detailing such evidence, since we do not consider petitioner’s argument in this respect pertinent, in reaching our determination.
Section 43-2152 of Arkansas Statutes (1947) provides as follows:
“The jury shall, in all cases of murder, on conviction of the accused, find by their verdict whether he be guilty of murder in the first or second degree; but if the accused confess his guilt, the court shall impanel a jury and examine testimony, and the degree of crime shall be found by such jury. ’ ’
Accordingly, we agree that the court was beyond its rights in directing the jury to find the defendant guilty of first degree murder. It was the duty of the jury, rather than the court, to find the degree of the crime. In Wells v. State, 193 Ark. 1092, 104 S. W. 2d 451, a plea of guilty was entered by the defendant to first degree murder, and the court instructed the jury as follows:
‘ ‘ The defendant in this case has entered his plea of guilty to the charge against him in the indictment; that is, of murder in the first degree. The law provides in such cases that the jury shall be impaneled to assess his punishment.
The question for you to determine in this case is that of the punishment to be imposed. The law provides that the punishment in such cases shall be death or life imr prisonment in the penitentiary.”
The jury returned the following verdict: “We, the jury, find the defendant guilty and fix his punishment at death.” On appeal, this Court held the instruction to be erroneous, and the verdict bad, the latter conclusion reached because the verdict failed to find the degree of the crime. In the case under discussion, the jury found the degree of the crime as first degree murder, but were given no other choice under the court’s instruction. Justice McHaney, speaking for the Court in the Wells ease, said:
“* * • * The statute provides that ‘the degree of crime shall be found by such jury,’ not merely to fix the punishment. * * * ”
Though, however, the court committed error, it.does not follow that petitioner is entitled to the relief sought. Section One of Act 419 of the General Assembly of 1957, under which petitioner seeks this relief, provides as follows :
“Any person convicted of a felony and incarcerated under sentence of death or imprisonment who claims that the sentence was imposed in violation of. the Constitution of the United States or the Constitution or laws of this State, or that the court was without jurisdiction to impose the sentence, or that='the sentence exceeds the maximum authorized by law, or that the sentence is otherwise subject to collateral attack upon any ground of alleged error heretofore available under a writ of habeas corpus, writ of coram nobis, or other common law or statutory remedy, may institute a proceeding under this Act to set aside or correct the sentence, provided the alleged error has not beeh previously and finally litigated or waived in the proceeding's resulting in the conviction or in any other proceeding that the petitioner has taken to secure relief-from'his conviction.
“The remedy herein provided is not a substitute for nor does it affect any remedies which are incident to the proceedings in the trial court, or any remedy of direct review of the sentence or conviction, but, except as otherwise provided in this Act, it comprehends and takes the place of all other common law and statutory remedies which have heretofore been available for challenging the validity of incarceration under sentence of death or imprisonment, and shall be used exclusively in lieu thereof. A petition for relief under this Act may be filed at any time.”
We call attention to the italicized portion of this Section. It obviously was not the intent of the legislature that the procedure set out in this Act be used in lieu of an appeal from the original conviction; it merely takes the place of other common law and statutory remedies which have long been available for the purpose of challenging the validity of the prisoner’s incarceration. Of course, the act of the court in instructing the jury to bring in a particular verdict was not only a violation of the statute, but actually had the same effect as if the court had acted without a jury, and if Mitchell had appealed after the original trial, this Court doubtless would have directed a reversal because of this error — but no appeal was taken. Instead, this collateral attack is made upon the judgment of the court.
If Act 419 had not been passed, petitioner possibly would have filed his petition with this Court, seeking a writ of habeas corpus. At least, that would have been the available remedy. It would therefore appear that in effect, Act 419 is here used in lieu of the remedy that formerly existed — the petition for writ of habeas corpus. Under the circumstances in this case, we do not see that Act 419 provides any additional grounds for relief that were not available under this previous remedy. We conclude that this matter is determined by Ex Parte O’Neal, 191 Ark. 696, 87 S. W. 2d 401. There, O’Neal had entered his plea of guilty to first degree murder, and had been sentenced by the court, sitting as a jury, to life imprisonment. Petition for writ of habeas corpus was filed by O’Neal, alleging the invalidity of the judgment, because no jury was called as required by statute, to hear evidence and fix the degree of the crime. This Court, quoting an earlier case, said:
i í * * * the person restrained of his liberty is in custody under process, nothing will be inquired into, by virtue of the writ, beyond the validity of the process upon its face, and the jurisdiction of the court by which it was issued. If he be detained under a conviction and sentenced by a court having jurisdiction of the cause, no relief can be given by habeas corpus, the general rule being that a conviction and sentence by a court of competent jurisdiction is lawful cause of imprisonment. # *
“When appellant’s rights are measured by the rule heretofore stated, he is entitled to no relief in this proceeding. By Section 11 of Article 7 of the Constitution of 1874, circuit courts are created, and by Section 45 of the same article the jurisdiction of all criminal proceedings are vested in them. It is plain therefore from the Constitution and laws of this State, that the circuit courts are given exclusive jurisdiction to try and determine all felony cases, and it necessarily follows from this that the circuit courts have the exclusive jurisdiction to try, hear and determine the guilt or innocence of any one charged with a felony under the laws of this State. If this be true, and it must be so conceded, then the Jackson County Circuit Court had jurisdiction to try, hear and determine petitioner’s guilt or innocence in the murder charge pending against him. But petitioner’s insistence seems to be that the Jackson County Circuit Court erroneously exercised the jurisdiction conferred in failing to impanel a jury to determine the degree of homicide of which he was guilty. Granting that this is true, it does not follow that the judgment is void upon its face. Erroneous judgments are not necessarily void judgments. If the court in which the erroneous judgment is entered has jurisdiction of the subject-matter and the parties thereto, such judgment is voidable, but not void. The circuit court of Jackson County had jurisdiction of the subject-matter, and of the person of the petitioner, and the judgment entered, though it may be erroneous, is not void, and its validity can only be brought in question by appeal or writ of error. * # * ”
To say that petitioner could ignore his right of appeal, and then gain relief under the petition herein filed, would have the practical effect of doing away with the statutes governing appeals. There would be no reason for one to appeal a conviction if he knew that subse quently, at any time lie might desire, he could gain another hearing on the validity of his conviction by instituting new proceedings, though raising no new issues.
Summarizing, to concisely state our view, Petitioner could have presented each of the four points herein raised by a direct appeal from the circuit court judgment of October 22, 1957. The claim that the confession was forced rather than free and voluntary, the refusal of the court to quash the information, the alleged failure of the State to establish a prima facie case of first degree murder, the erroneous instruction of the jury, and the contention that the judgment rendered was void, were all proper matters for an appeal.
It was not the intention of the G-eneral Assembly of 1957 in passing Act 419, to authorize the remedy therein set forth as a substitute for, or in lieu of, the time honored procedure of direct appeal.
The judgment of the circuit court denying the petition, is affirmed.
A part of the agreement also was that Mitchell plead guilty to second degree murder for the murder of Beyerlein’s wife. The plea was entered, and Mitchell sentenced to twenty-one years on the charge, the sentence to run consecutively.
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George Rose Smith, J.
This is an action by the appellants to recover $1,300 upon two fire insurance policies, by which the appellee insured a dwelling house and household goods. The insurer denied liability on the ground that, in violation of the terms of the policies, the house had been vacant for more than sixty days at the time of the fire. At the close of the proof the trial judge directed a verdict for the defendant.
Since it is conceded that the dwelling had been vacant for some six months when it burned, the trial court’s action was correct unless there was substantial evidence from which the jury might have found that the insurer waived this clause in the policies. On this point Lizzie Maxfield, one of the appellants, testified that on each of three occasions, as the company’s agent Davidson was collecting a monthly premium, she informed him that the house was unoccupied, and she says that on one occasion Davidson assured her that the insurance was good despite the vacancy. In view of this proof the issue narrows down to that of Davidson’s authority in the matter.
The appellants contend that Davidson was a general agent for the company, while the appellee insists that he was merely a soliciting agent. The familiar distinction between the two types of agency involves a question of substance rather than one of name only. A general agent is ordinarily authorized to accept risks, to agree upon the terms of insurance contracts, to issue and renew policies, and to change or modify the terms of existing contracts. Appleman on Insurance, § 8696. On the other hand a soliciting agent is ordinarily authorized to sell insurance, to receive applications and forward them to the company or its general agent, to deliver the policies when issued, and to collect premiums. American Ins. Co. v. Hampton, 54 Ark. 75, 14 S. W. 1092; German-American Ins. Co. v. Humphrey, 62 Ark. 348, 35 S. W. 428, 54 A. S. R. 297; American Ins. Co. v. Hornbarger, 85 Ark. 337, 108 S. W. 213. He has no authority to agree upon the terms of the policies or to change or waive those terms, nor can his knowledge be imputed to the company he represents. Sadler v. Fireman’s Fund Ins. Co., 185 Ark. 480, 47 S. W. 2d 1086.
The appellants, as the plaintiffs, had the burden of proving Davidson’s real or apparent authority to bind his company to a modification of the written contracts. American Nat. Ins. Co. v. Laird, 228 Ark. 812, 311 S. W. 2d 313. In our opinion the trial court properly held that the burden of proof had not been sustained.
For the most part the evidence relates to matters which, under our prior decisions, fall within the usual duties of a soliciting agent. It is shown that Davidson was authorized to accept applications for fire insurance, to inspect the property to be insured, to forward the applications to the company’s home office for its approval, to deliver the policy if issued by the insurer, and to collect premiums. None of these matters involve a general agent’s discretionary power to accept risks and to agree upon the terms of the contract.
The appellants introduced proof of other services performed by Davidson, to be mentioned in a moment, and now stress the fact that his activity did not invariably end with the delivery of the policy. That, however, is not the test; premiums, for example, are often collected by the soliciting agent after the policy has been delivered. The real issue is whether the subsequent services fall within the scope of a general agent’s real or apparent authority to bind the principal.
Here the evidence does not indicate that Davidson had been delegated the authority to exercise contractual powers on behalf of the appellee. It is shown that he used a rubber stamp referring to him as an agent of the company; but that statement was true, as he was admittedly the insurer’s agent. The situation differs materially from that in Pacific Mut. Life Ins. Co. v. Carter, 92 Ark. 378, 123 S. W. 384, 124 S. W. 764, relied upon by counsel, where the insurer furnished stationery describing Claude D. Head as its general agent and where we said that the uncontroverted facts showed Head to have been a general agent.
Again, it was shown that Davidson delivered the form for the proof of the appellants’ loss and, when it had been completed, forwarded it to the company. This evidence falls decidedly short of suggesting that Davidson was authorized to pass upon the claim; to the contrary, it demonstrates that his duty was merely ministerial and that the power to act upon the claim was reserved by his principal.
The appellants also call attention to a clause in the agreement between Davidson and the appellee, by which Davidson agreed to sell insurance, collect premiums, and "aid in the proper adjustment of claims.” In substance it is argued that this clause clothed Davidson with the authority of an adjuster and therefore empowered him to waive provisions in the policies. Our decision in Queen of Ark. Ins. Co. v. Forlines, 94 Ark. 227, 126 S. W. 719, is cited in support of this contention.
There are at least two defects in this chain of reasoning. To begin with, the agency contract in question provides in another clause that Davidson has no authority to make, alter, or discharge any contract, or to waive forfeitures. Since it is not intimated that the appellants had any knowledge of this agency contract until it was introduced in evidence by the appellee, this issue concerns Davidson’s actual authority rather than any apparent authority on his part. Davidson’s duty to “aid” in the adjustment of claims cannot fairly be supposed to include a power that is elsewhere explicitly denied.
Secondly, unlike the situation in the Forlines case, here Davidson did not act as the adjuster in connection with the appellants’ claim; that duty was performed by other agents of the insurer. Indeed, it is not shown that Davidson’s assistance in the adjustment of claims ever went beyond the ministerial act of delivering checks that had been issued by the insurer for losses approved by it. It must be remembered that Davidson was assertedly told of the vacant house while he was collecting premiums as a soliciting agent, not while he was exercising any limited authority he may have had to aid in the adjustment of claims.
The appellants, in contending that Davidson was authorized to act as a general agent for the appellee, have listed and proved a number of services performed by him, much as it might be shown that a clerk in a retail store performs a variety of duties in the course of his employment. But the question is whether any of Davidson’s activities would justify a jury in finding that he was invested with the discretionary powers of a general agent, and that proof is wanting.
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Ed. F. McFaddin, Associate Justice.
This appeal presents questions concerning (a) limitations and (b) methods of accounting.
For many years E. E. Goins rented land to John Sneed and advanced him money and supplies for cultivation of the land and harvesting of the crops. In addition to the landlord’s lien for the advances, Mr. Goins also had two mortgages as security. One was executed on November 27, 1950, and in addition to securing a specified note, also provided:
‘ ‘ This mortgage shall also be security for any other indebtedness of whatsoever kind that the grantee or holders or owners of this mortgage may hold against grantors by reason of future advances made hereunder, by purchase or otherwise, to the time of the satisfaction of this mortgage.”
The other mortgage was dated July 6, 1953, and secured a described note and was also for the payment of “. . . goods, merchandise, or supplies, live stock, advances or acceptances furnished, and which may be furnished by second party or parties to first party or parties, the exact amount to be determined by the books of the second party or parties and- due and payable on the 1st day of November, 1953.” There does not appear to have been any settlement of accounts between John Sneed and E. E. Goins after the 1950 note.
On August 17, 1953 John Sneed, a widower, died intestate, survived by several sons and daughters. Three of the sons (L. G. Sneed, Nelson Sneed, and Garland Sneed) and one daughter (Rebecca Sneed Hamilton), all of full age, agreed to complete the 1953 crop and apply the proceeds on the John Sneed indebtedness to Mr. Goins. This was all done; and according to Mr. Goins’ accounts, there was still due him, after all credits, a substantial balance secured by the John Sneed mortgages.
In 1954, some or all of the said four adult Sneed children continued to use the John Sneed farming equipment (mortgaged to Mr. Goins), and rented and cultivated the same lands. Mr. Goins continued to advance money and supplies to the said Sneed children, apparently relying on his landlord’s lien and the John Sneed' mortgages. The tacit understanding seems to have been that if the said Sneed children were able to satisfy the mortgage indebtedness of John Sneed to Mr. Goins, then the John Sneed heirs would receive the mortgaged property. There was never any administration on the estate of John Sneed, and no other creditors are'mentioned in the record before us.
The 1954 arrangement between the said Sneed children and Mr. Goins was continued by mutual consent for the crop year of 1955. Mr. Goins refused to continue the arrangement for 1956; and on May 28, 1956 filed the present suit against all of the Sneed heirs for judgment for $2,455.99, together with interest from November 22, 1955; and for foreclosure of the two mortgages executed by John Sneed to Mr. Goins. The defendants filed general denial, denied portions of the claimed indebtedness, and also pleaded limitation against each and both of the mortgages executed by John Sneed to Mr. Goins. After an extended trial, the learned Chancellor delivered a written opinion, in which he held: • *>
(1) That all indebtedness incurred by John Sneed to Mr. Goins prior to May 27, 1953 was barred by the 3-year statute of limitation, since this suit was not filed until May 27, 1956; but that all advances made by Mr. Goins to John Sneed after May 27, 1953 up to the time of his death were valid and secured by the mortgages.
(2) That the dealings for 1954 and 1955 between Mr. Goins and the Sneed children were entirely separate from the John Sneed matters and that the Sneed children had overpaid their account by the sum of $2,733.75 ; but that they had not asked for judgment, so none was rendered.
(3) That during the course of the litigation Mr. Goins had obtained possession of some of the mortgaged chattels by receivership proceedings; and that this can-celled any claim that Mr. Goins had under the John Sneed mortgages.
(4) That Mr. Goins’ accounts were in error in a few instances, which we will discuss in Topic III, infra.
From that decree both sides have appealed: Mr. Goins claiming he is entitled to judgment for the amount prayed and for the foreclosure of the mortgages; and the Sneed children claiming that they are entitled to judgment against Mr. Goins for overpayment. The questions presented are discussed in a number of points; but we group and dispose of them in the following topic headings:
I. Limitation against Goins’ Bight to Foreclose The John Sneed Mortgages. The Trial Court was of the opinion: (a) that the 3-year statute of limitation (§ 37-206 Ark. Stats, on open accounts) applied to the indebtedness due by John Sneed to Mr. Goins;- (b) that the statute continued to run after John Sneed’s death, so; (c) that all items furnished more than three years before the filing of the suit (May 27, 1956) were barred by the statute of limitation. Without deciding whether the 3-year statute of limitation or the 5-year statute of limitation would be applicable (because of the provisions in the notes and mortgages sued on), we nevertheless conclude that no statute of limitation had run against Mr. Goins when he instituted his suit to foreclose the mortgages on May 27, 1956.
When John Sneed died on August 17, 1953, none of his indebtedness to Mr. Goins was barred by any statute of limitation: he had executed a mortgage on the 27th of November, 1950 and none of his indebtedness was due until the fall of 1951; and John Sneed had also executed a mortgage on July 6,1953. In Bowdre & Co. v. Pitts, 94 Ark. 613, 128 S. W. 57, we held that when a debtor died before the right of action against him was barred by limitation, the “general statute of limitation then ceased to run against the debt and was succeeded by the 2-year statute of non-claims, which did not begin to run before administration on the estate of the decedent. . . The action to foreclose the mortgage was, therefore, not barred and the Chancellor erred in dismissing the complaint . . .” That holding was reiterated in Montgomery v. Gant, 100 Ark. 629, 140 S. W. 260.
Applying these holdings to the case at bar, it follows that none of the indebtedness of John Sneed to Mr. Goins was barred by the statute of limitation because (a) no limitation had run before John Sneed’s death; (b) there was nothing to show any holding adverse to Goins’ mortgages; and (c) there was no administration on the estate of John Sneed. So, Mr. Goins was entitled to foreclose his mortgages for whatever amount John Sneed owed him at the time of his death, less whatever amounts the Sneed children had paid on the said indebtedness. Mr. Goins claimed this balance to be $2,455.99. The fact that Mr. Goins had taken possession of some of the mortgaged chattels under a receivership did not operate in any way to prevent him from foreclosing his mortgages. The correct amount for which he was entitled to foreclose will be discussed in Topic III, infra. ,
II. The Sneed Gross Appeal. Appellees on their cross appeal say that they are entitled to judgment for $967.95 not allowed by the Trial Court; hut we find they are not entitled to any judgment because they took charge of the mortgaged chattels and used them for the purpose of assisting in liquidating the indebtedness of John Sneed to Mr. Goins, and they voluntarily allowed all such proceeds of the crops to he applied on the John Sneed indebtedness. As aforesaid, they were trying to free the land and the chattels of the mortgages when they voluntarily allowed the payments to be so applied. They cannot recover for amounts voluntarily paid. Northcross v. Miller, 184 Ark. 463, 43 S. W. 2d 734; Ritchie v. Bluff City Lbr. Co., 86 Ark. 175, 110 S. W. 591; Larrimer v. Murphy, 72 Ark. 552, 82 S. W. 168.
III. The Correct Amount Due Mr. Goins. Mr. Goins had given the defendants memoranda at various undated and unspecified times as to amounts due, but it seems that each one of these memoranda was for an amount greater than the amount now claimed by Mr. Goins. There is, however, the matter of correct credits to be allowed for an oat crop, and the correct amount to be allowed for some corn. The Chancellor found that Mr. Goins had not allowed the correct amount of credits for these items. We conclude that Mr. Goins had not allowed full credit for some items, so the amount claimed by Mr. Goins on his mortgages is reduced by the sum of $300.00. Mr. Goins was entitled to no personal judgment against any of the defendants.
CONCLUSION
The decree is reversed and the cause is remanded, with directions to enter a decree in favor of Mr. Goins for the sum of $2,155.99, with interest at 10 per cent from November 22,1955 until paid; for foreclosure of the two mortgages executed to him by John Sneed; and for all costs.
It described the following property: “The West Half (W%) of the Northeast Quarter (NE%) of the Northwest Quarter (NW14) of Section Sixteen (16), Township Eight (8) South, Range Seven (7) West, containing 20 acres, more or less.
“ALSO, 1 Farmall Tractor together with all attachments; 1 Chevrolet Pickup Truck, % Ton, 1948 Model, Motor No. AFCA-88424; 1 John Deere Wagon; all Farming Implements; one Grey Mule named Hank; one Dark Bay Horse, named Spotlight; all crops raised or caused to be raised by grantor.”
It described the following personal property:
“One Model G John Deere Farm Tractor Serial No. 35632
One Set 4-row John Deere Cultivators
One Set 3-row Busters
1 cream colored Milk Cow wt. 300 lbs. — 6 years old
1 Red Milk Cow wt. 300 lbs. — 5 years old
1 Red White Face Bull — 5 weeks old 1 Black Bull — 2 years old And all increase from cows
And also all of our crops . . . raised during the year 1953.”
Mr. Goins’ figures show that at the time of the death of John Sneed the total amount owed by him to Mr. Goins was $6,626.03; that Mr. Goins advanced $1,462.73 to complete the 1953 crop; that the total proceeds from the 1953 crop were $3,408.64; that when the $1,462.73 was first taken out of the proceeds there was left a balance of $1,945.91 to apply on the John Sneed indebtedness; that this reduced the balance of the indebtedness due by John Sneed and secured by the mortgages to $4,680.12; and that the amounts paid by the Sneed children from 1954 and 1955 crops reduced the balance to $2,455.99. The correctness of Mr. Goins’ figures was disputed in some instances, but on only a few items.
The non-claim statute has now been shortened to six months (see ,§ 62-2602 Ark. Stats).
The case is not reported in full in the Arkansas Reports.
The Chancellor’s opinion said, “. . . a surplus credit due L. G. Sneed of $2,733.75”; but, by reason of the appellees’ claim of yearly credits, they sought only $967.95 on the cross appeal. | [
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William J. Smith, Associate Justice.
On February-27, 1957, Mary Ida Cooper; appellant, filed a petition in the Circuit Court of Izard County for a Writ of Habeas Corpus against Carl G-. Cooper and his parents, Leslie and Juanita Cooper, appellees, seeking possession of her minor son, Stephen Carl Cooper. In this proceeding she relied solely upon a California interlocutory decree awarding her a divorce from Carl Gr. Cooper and the custody of their minor son, Stephen. She contends that under the Federal Constitution, Article IY, Section 1, and the Federal Statute, 28 U. S. C., Section 1738, the California decree should be given full faith and credit by the Courts of Arkansas.
This is an appeal from an order dismissing the appellant’s petition after a hearing of the evidence.
The appellant and Carl G. Cooper were married in 1955. Their son, Stephen, was born in 1956. While these two young people were residing in Sacramento County, California, marital trouble developed between them and on the night of October 30,1957, the husband took Stephen from the couple’s home. On the next day he left California (with Stephen) by automobile and drove to Ms parents’ home in Izard County, Arkansas, where he arrived on November 2, 1957.
Stephen was living with his father and grandparents when his mother filed this action in the lower court.
On November 1, 1957, Mary Ida Cooper filed suit for divorce and custody of Stephen in Sacramento County, California. Service was had on her husband in Izard County, Arkansas, on November 18,1957. Carl G. Cooper did not appear (by answer or otherwise) in that suit and on December 19, 1957, the Superior Court of Sacramento County, California, granted ah interlocutory decree of divorce to Mary Ida Cooper wherein she was awarded the custody of Stephen. This is the decree upon which the appellant relies in this action.
Did the Circuit Court err in dismissing the appellant’s petition? We think not.
The evidence is undisputed that Carl G. Cooper and Stephen were not in the State of California when Mary Ida Cooper filed her suit for divorce. They were not in California when summons was issued, when service was had, nor when the interlocutory decree was granted.
A father’s right to custody of Ms cMld is a personal right, May v. Anderson, 345 U. S. 528, 97 L. Ed. 1221, 73 S. Ct. 840, and since the California Court did not have personal jurisdiction over Carl Gr. Cooper, it could not adjudicate his right to possession of Stephen.
In Frey & Horgan Corporation v. Superior Court, 5 Cal. 2d 401, 55 P. 2d 203, the Supreme Court of California said: ‘ ‘ The general rule has long been established that a court may not acquire jurisdiction in personam over the defendant in an action, by service of notice or other process outside the territory or state in which the forum exists. It was so decided in the case of Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565, and there are innumerable decisions in accordance with that authority.”
In the May case, supra, the Supreme Court of the United States, citing cases, quoted the following: “It is now too well settled to be open to further dispute that the ‘full faith and credit’ clause and the act of Congress passed pursuant to it do not entitle a judgment in personam to extra-territorial effect if it be made to appear that it was rendered without jurisdiction over the person sought to be bound.”
See also Halvey v. Halvey, 330 U. S. 610, 91 L. Ed. 1133, 67 S. Ct. 903 and Kovacs v. Brewer, 356 U. S. 604, 2 L. Ed. 2d 1008, 78 S. Ct. 963, in which the Supreme Court of the United States discusses the effect of the “full faith and credit” clause in child custody cases.
The order of the circuit court is affirmed.
It should be pointed out that this decision does not prejudice this mother’s right to file a habeas corpus action in the Chancery Court of Izard County to obtain custody of her child upon a proper showing that it is to his best interest and welfare that she have such custody. Waller v. Waller, 220 Ark. 19, 245 S. W. 2d 814.
Justice Sam Robinson dissents. | [
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Sam Robinson, Associate Justice.
On the 22nd day of August, 1956, about 7:30 a. m., in Benton, at a place known as tbe Owosso crossing, a Missouri Pacific locomotive pulling a freight train consisting of nine cars collided with a truck being driven by appellee, Maynard C. Yarbrough. Yarbrough filed suit against the railway company and Noble Hatfield, the locomotive engisonal injuries in the sum of $20,000. The railway comneer, and obtained a judgment for damages due to perpany and Hatfield have appealed.
First, the appellants say there is no substantial evidence to support the verdict. We have reached the conclusion that the evidence was sufficient to take the case to the jury on the question of whether the locomotive engineer negligently failed to blow the whistle or ring the bell for the crossing. Several witnesses who were in a position to have heard the bell or whistle if either had been sounded testified that they heard neither a bell nor a whistle. Although such evidence is negative in character, it is admissible, and in this instance was sufficient to take the case to the jury. Missouri Pacific R. R. v. Rogers, 206 Ark. 1052, 178 S. W. 2d 667. This cause accrued at a time when Act 191 of 1955 applied. The rule of comparative negligence governs and will be controlling in a new trial. See St. Louis Southwestern Ry. v. Robinson, 228 Ark. 418, 308 S. W. 2d 282.
One of the allegations of the complaint is that the trainmen failed to keep a proper lookout. This issue was submitted to the jury. Appellants contend that the instruction on keeping a lookout was abstract, contending there is no evidence in the record to the effect that the trainmen failed to keep a proper lookout. In determining the question of whether there is any substantial evidence to support an instruction on the failure to keep a proper lookout, the evidence must he viewed in the light most favorable to appellee.
There are four railroad tracks that cross Neeley street in Benton. At this point the street is running approximately north and south and the tracks are running east and west. There are two main line tracks and to the south of these tracks is a spur track which services the Owosso Manufacturing Company plant. To the north of the main line tracks is another switch track. The spur track going to the Owosso plant is about 50 or 60 feet south of the main line track, and from that point to the main line track it is upgrade.
On the day in question the train was traveling west at a speed of from 20 to 25 miles an hour and was to stop at the railroad depot, about a quarter of a mile west of the Owosso crossing. The appellee, Yarbrough, was traveling north on Neeley street. He was driving a truck equipped with a transmission having four speeds forward and one reverse. One of the forward speeds is known as ‘ ‘ double low ’ ’. Appellee’s truck was empty. He testified that he was going after gas, and when he reached a point where his rear wheels were on the north rail of the spur track south of the main line, he came to a complete stop, looked to his right, then to his left, then to his right again, and seeing no train he put his truck in double low and started to cross the main line track at about 5 miles an hour. He testified that in looking east, to his right, the sun was in his eyes; and he also said that in that direction there was a little railroad tool house that might have interfered with his vision. From the pictures introduced in evidence, it appears that the right front end of his truck collided with the train.
According to the undisputed testimony, when about 100 feet from the crossing the fireman saw appellee’s truck going up the incline to the main line track; it occurred to him that the truck driver was not going to stop; he jumped up to make sure that the engineer heard him, and hollered “Big Ho”, which is the term used as a warning to apply the emergency brakes, that there is danger; the engineer immediately applied the brakes, but, although the brakes on the train were working properly, a train of the character involved, going at a speed of from 20 to 25 miles an hour, conld not be stopped in less than about 350 feet.
Appellee contends that the testimony of Richard Dick, the fireman on the locomotive, shows that the track is straight for a quarter of a mile east of the Owosso crossing, and that pictures admitted in evidence show the track to be straight for a considerable distance, and hence the fireman should have seen Yarbrough sooner than he testified he did see him, and if he had seen Yarbrough sooner the train could have been stopped before reaching the crossing. We do not find any evidence in the record that is fairly open to that construction. The pictures introduced in evidence clearly show that the crossing itself is actually in a curve, that the track is curving as it comes into the crossing and is curving east of there to such an extent that there is no indication that the fireman could see Yarbrough before he says he did see him. Appellee contends that the following testimony given on cross-examination by the fireman, Dick, indicates that the main line track is straight for a considerable distance east of the crossing:
“Q. And you are telling the jury that you do not know how far east it is where the line makes a turn from south to west?
A. I don’t know the exact distance.
Q. Do you have any idea? Can you estimate it for us?
A. I could estimate it, but that would be—
Q. All right, estimate it for us, if you will.
A. My estimation, it would be somewhere close to a quarter of a mile.”
When this evidence is considered along with the pic- . tures and the other evidence in the case, it is clear that the fireman meant that the curve started about a quarter of a mile east of the Owosso crossing.
We have carefully examined the record in this case and find no direct or circumstantial evidence from which an inference could be drawn that the trainmen failed to keep a lookout or that such alleged failure in any way contributed to cause the collision. And furthermore, even assuming that the trainmen were not keeping a lookout, according to the undisputed evidence such failure could have in no way contributed to cause the collision. According to appellee Yarbrough’s testimony, he brought his truck to a complete stop between the spur track and the main line; he then put the truck in double low and started across the track at about 5 miles an hour. When he did this he could not have been over about 40 feet from the main line. At 5 miles an hour he was traveling about 7 feet per second. The train was traveling between 20 and 25 miles an hour. Assuming that it was going 25 miles an hour it would not have been going over 37 feet a second. At 5 miles an hour it would take the truck about 7 seconds to reach the main line track. In this same length of time the train would travel approximately 250 feet. According to the undisputed testimony the train could not be stopped within that distance, and it would go about 140 feet before the brakes would start slackening the speed of the train to any extent. Therefore, a failure to keep a lookout could not have contributed to cause the collision. It was impossible to stop the train before reaching the crossing after the appellee put his truck in motion and started across the track. Certainly if the trainmen saw the appellee with his truck standing still near the track they would not be required to anticipate that he was going to start the truck up and attempt to cross, when to do so would make a collision almost inevitable. In Missouri Pacific R. R. v. Doyle, 203 Ark. 1111, 160 S. W. 2d 856, the court quoted from Blytheville, L. & A. So. Ry. v. Gessell, 158 Ark. 569, 250 S. W. 881, as follows: “ ‘The operatives of trains have the right to assume that a traveler or a pedestrian approaching a railroad track will act in response to the dictates of ordinary prudence and the instinct of self-preservation, and will, in fact, stop before placing himself in peril, and the duty of the railroad employees to take precautions begins only when it becomes apparent that the traveler at a crossing will not do so.’ ”
Appellee further contends that appellants are in no position to complain of the court’s action in giving an instruction submitting to the jury the question of whether the trainmen kept a lookout, because the instruction was given at the request of appellants. It appears that appellants, by their instruction No. 3 requested the court to instruct the jury not to consider the allegation of failure to keep a lookout. The court refused to give this instruction. Among appellants’ instructions was No. 19, dealing with the lookout question. In reading through the instructions requested by both sides, the trial court decided to give this instruction instead of giving appellee’s instruction on that point. The court’s action in giving the instruction was over the objection of appellants. It appears that the court had decided on the instructions that would be given when the attorney for appellants dictated his motion for a directed verdict and at the same time objected to the court’s action in giving the instruction on the issue of keeping a lookout.
Appellants also maintain that the court erred in not submitting the case to the jury in accordance with the comparative negligence statute (Act 191 of 1955), but from what has been said heretofore this point is not likely to arise at a new trial.
Because of the error in submitting to the jury the issue of whether the trainmen kept a proper lookout, the judgment is reversed and the cause remanded for a new trial.
McFaddin, J., not participating; Millwee, J., dissents. | [
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Josephine Linker Hart, Judge.
Appellant, Sue Monk, appeals from the circuit court’s order approving a final accounting, final distribution, and payment of fees in the estate of Ruby C. Griffin. On appeal, appellant argues that appellee, Judy Griffin, who was Ruby Griffin’s guardian and later the co-executrix of Ruby Griffin’s estate, improperly spent funds from a certificate of deposit held jointly by appellant and Ruby Griffin that was cashed but not spent by appellee during the eleven days preceding Ruby Griffin’s death. Further, appellant contends that appellee, in her capacities as guardian and as co-executrix, improperly spent funds from the estates, including expenditures on the farm where appellee resided and that was devised to her through Ruby Griffin’s will. Finally, appellant challenges the award of attorney fees. We reverse and remand.
Only one hearing was held and that was on appellee’s petition for approval of the “First and Final Accounting” in the decedent’s estate administration, which was filed January 13, 2003, just short of two years after Ruby Griffin’s death. Appellee testified that she and appellant were sisters and, as provided by their mother’s will, their mother’s sole beneficiaries. According to appellee, her mother owned a cattle farm and the residence — neither of which were included in the accounting — where appellee had resided with her mother for fifty years. Her mother had a stroke on June 24, 1998, and she was placed in a nursing home, never returning to the residence. Appellee was appointed guardian in August of 1999, and according to appellee, she assisted her mother in her care two to three times a week.
Appellee discussed a number of payments she made during the guardianship. She paid $1394.29 to Still’s Auto Service for repairs on a car and a farm truck owned by her and her mother, which she testified were proper expenditures for the maintenance of her mother’s property during the time she was acting as guardian. She also testified that while acting as her mother’s guardian, she paid $3593.11 for the management and maintenance of her mother’s property. These expenditures included items such as funds for the repair of a water pump; water, gas, and electric utility payments; and payments to Terminix, an appliance store, and a plumbing business. She testified that these expenses were proper for the maintenance of the property while her mother was in the nursing home. She further stated that she was “spending my money mostly, when it played out I didn’t see anything wrong with spending some of that money and besides she would expect me to spend some of the money on the utilities because I was spending money for everything else out of there out of my check.” She stated that her mother was not living there but that it was her mother’s house. She also admitted that she wrote herself several checks. She testified that “[t]here was things that I needed out there to work with and my mother did not care, she already knew what I did. I didn’t take money from her. Every once in a while when I took money she knew about it.” She testified that she did not know whether her mother benefitted from this but that the farm benefitted.
Appellee also testified that on February 13, 2001, she was maintaining a banking account numbered 758558 for the payment of her mother’s nursing-home expenses. On that day, she transferred to that account funds from a certificate of deposit, numbered 16822, in the amount of $19,960.53, that was held jointly by her mother and appellant with rights of survivorship. She testified that she did so because there were not enough funds in the bank account to pay for the next month of nursing-home charges. She acknowledged that there were other certificates of deposit that she could have placed in the account, but that they were of larger amounts, and that the certificate of deposit she used would have matured within a month. Her mother, however, died on February-24, 2001, and she did not spend any of the funds from the certificate of deposit prior to her mother’s death.
In March 2001, following her mother’s death, appellee opened another account numbered 768154, which she described as the farm account. According to appellee’s first and final accounting, she transferred $20,016.15 into the new account. The transfer included the funds that appellee obtained when she cashed certificate of deposit 16822. From March 2001 to August 27, 2002, appellee deposited a total of $40,129.32 into that account. During that time, she spent all the money in that account except for $3102.33.
She testified that she put the funds from the certificate of deposit into that account “to take care of things on the farm.” She stated that she “had one check coming in that was mine. I had to pay my bills and those bills too.” She acknowledged that her mother’s will provided that she would inherit the farm, the cows, and the farm implements. As for the certificate of deposit, she stated that it was her mother’s money and she spent it on her mother for what she needed and that appellant was entitled to the remainder. She further stated that after her mother died, she continued to expend funds on the farm, just as she did prior to her mother’s death. Finally, she acknowledged that all farm equipment and implements belonged to her and that everything spent on them since her mother’s death was for appellee’s benefit only.
In its ruling, the court stated that appellee did not have to return any funds because the funds were paid on the farm, which the court concluded remained estate property. The court also stated that the guardian and personal representative had an obligation to maintain the estate property and spend money on the farm. The court further found that the attorney fees were fair for the work done on behalf of the estate. In an order filed December 19, 2003, the court granted appellee’s petition for approval of the accounting and distribution of the estate and for payment of attorney fees.
On appeal, appellant argues that the court erred in ruling that, following their mother’s death, appellee properly spent the funds from the certificate of deposit. As we have noted, the certificate was held jointly by appellant and her mother with rights of survivorship. Eleven days before her mother’s death, appellee withdrew the funds from the certificate and deposited the funds into a separate account for payment of nursing-home expenses. The funds were not spent prior to her mother’s death; instead they were transferred into a new account and spent after her death on maintenance of the farm.
Even though one has a right to withdraw funds from a joint bank account, a joint tenant may not, by withdrawing funds in a joint tenancy, acquire ownership to the exclusion of the other joint tenant. Dent v. Wright, 322 Ark. 256, 909 S.W.2d 302 (1995). When one withdraws in excess of his moiety, he is liable to the other joint tenant for the excess withdrawn. Id.; Hogan v. Hogan, 313 Ark. 374, 855 S.W.2d 905 (1993). We are mindful that appellee, as guardian of her mother’s estate, could withdraw the funds from the certificate of deposit to pay for her mother’s nursing-home expenses. See Brasel v. Estate of Harp, 317 Ark. 379, 877 S.W.2d 923 (1994). But here, her mother died, and the funds were not used for the purpose of paying the nursing-home expenses. Rather, appellee placed the funds in a farm account to spend on the farm, which was devised to appellee in her mother’s will.
As noted by Justice Newbern’s concurrence in Brasel in his examination of cases from other states, a “guardian of the estate of an incompetent person does not become the alter ego of the ward and has no authority to change an act by which the ward exercised personal discretion before becoming incompetent.” Brasel, 317 Ark. at 383, 877 S.W.2d at 926. Here, appellant was entitled to her moiety in the funds upon her mother’s death, which would have been the entire sum, as it was not spent on Ruby Griffin. Otherwise, appellee as guardian would have effectively changed decisions made by the parties’ mother before she became incompetent, under the guise of gathering in the assets of their mother’s estate.
Appellee argues that the case of South v. Smith, 326 Ark. 774, 934 S.W.2d 503 (1997), is similar to this case. That case, however, did not concern, as here, withdrawal of funds in excess of a joint tenant’s moiety. Rather, in South, the withdrawal of funds by the joint tenant was consistent with the joint tenant’s survivorship interest in the account. There, an estate sought funds from a certificate of deposit held by the deceased and a joint tenant. The court noted that upon the decedent’s death, the funds properly went to the joint tenant and that even if the joint tenant withdrew the funds before the decedent’s death, it did not terminate the joint tenant’s survivorship right in the property. The court concluded that “[jjoint accounts are often used as substitutes for testamentary disposition, and people who establish such account must be able to know with certainty that the courts will follow their desired disposition of their property.” South, 326 Ark. at 784, 934 S.W.2d at 508. We observe that South instead supports our conclusion that appellant’s survivorship right in the funds from the certificate of deposit remained even after the funds were withdrawn. We reverse and remand on this point.
Appellant also argues that, following their mother’s death, appellee improperly spent funds on the farm. Appellee argues that Ark. Code Ann. § 28-49-101 (b)(2) (Repl. 2004) permits a personal representative to preserve and maintain real property, and therefore, she was entitled to spend the funds on maintaining the farm. Title to real property, however, vests in the devisee immediately on the testator’s death, and not at the probate of the will, if the will does not postpone the vesting of title. Blair v. Bradley, 238 Ark. 191, 379 S.W.2d 5 (1964). The statute referred to by appellee provides that “[r]eal property shall be an asset in the hands of the personal representative when so directed by the will,” or “when the court finds that the real property should be sold, mortgaged, leased, or exchanged” for various purposes, none of which are relevant here. Ark. Code Ann. § 28-49-101 (b)(1) (Repl. 2004). Here, there is no indication in the will that title was not to vest immediately. Furthermore, there was no showing, as required by statutory provision cited by appellee, that it was “necessary” that appellee expend funds on the farm “for the preservation of the property, for protecting the rights and interests ofpersons having interests therein, or for the benefit of the estate.” Ark. Code Ann. § 28-49-101 (b)(2) (Repl. 2004). And finally, we note that no real property, farm equipment, or farm animals, were listed as an asset of the estate, suggesting that appellee did not consider them property of the estate. Accordingly, we reverse the circuit court’s approval of any expenditures on the farm made after the death of Ruby Griffin. Thus, in addition to appellee paying to appellant funds received from the certificate of deposit jointly held by appellant and Ruby Griffin, appellee shall also pay a sum equal to one-half of all other funds expended from or remaining in the farm account.
Appellant further contends that appellee, in her capacity as guardian, improperly used funds during the guardianship and while administering the estate. On the approval of funds spent during the guardianship, the court found that funds were paid out for maintenance on the farm. This finding, however, does not address the ultimate issue of whether the payments were proper. The duties of a guardian of an estate include the duty to “exercise due care to protect and preserve it.” Ark. Code Ann. § 28-65-301(b)(1)(A) (Repl. 2004). Thus, the ultimate issue is whether appellee, in fulfilling her duties as guardian of the estate, exercised due care to protect and preserve the estate. See Robinson v. Hammons, 228 Ark. 329, 307 S.W.2d 857 (1957) (reversing the probate court’s allowance of credits to guardian where the guardian failed to meet his burden of showing that he exercised due care to protect and preserve the estate of his ward).
While payments made for maintenance on the farm may be relevant to the question of whether appellee met her statutory obligations as guardian, it does not answer the question at bar. For instance, payments made for maintenance on the farm could have been made, not to preserve and protect the estate, but to enable appellee to live on the farm while her mother remained in the nursing home. We remand for further findings on expenses paid during the guardianship only. See Robinson v. Merritt, 229 Ark. 204, 314 S.W.2d 214 (1958) (clarifying its decision in Robinson v. Hammons as permitting the probate court to take further proof on the credits claimed by the guardian).
Finally, we reverse and remand for reconsideration the circuit court’s award of $7500 in attorney fees. The court awarded a lump sum and did not differentiate between the guardianship and the probate of the estate. Furthermore, in awarding attorney fees for the guardianship pursuant to Ark. Code Ann. § 28-65-319 (Repl. 2004), the circuit court did not consider the factors set forth in Bailey v. Rahe, 355 Ark. 560, 142 S.W.3d 634 (2004), and that we discussed in Scott v. Esate of Prendergast, 90 Ark. App. 66, 204 S.W.3d 110 (2005). As for the award of attorney fees pursuant to Ark. Code Ann. § 28-48-108(d) (Supp. 2005), we are unable to discern whether the fee was “based on the total market value of the real and personal property reportable to the circuit court” or whether it was based on some other measure. We do note that certificates of deposit were inexplicably cashed and placed in a trust and then listed as assets. For purposes of determining attorney fees, which are based in part on the size of the estate, assets listed in the estate should be assets that are properly estate assets. Thus, we remand for reconsideration of this issue as well.
Reversed and remanded.
Neal and Vaught, JJ., agree.
This case began as a guardianship of Ruby Griffin’s estate in which appellee was appointed guardian of the estate. Following Ruby Griffin’s death, appellee and appellant were appointed co-executrixes of the estate, and appellee, without filing an inventory or obtaining an approval of any accounting in the guardianship case, probated the estate as part of the same case. Appellee filed three accountings, two in the guardianship and one in the decedent’s estate.
Subsection (b) provides in part as follows:
(b)(1) Real property shall be an asset in the hands of the personal representative when so directed by the will, if any, or when the court finds that the real property should be sold, mortgaged, leased, or exchanged for any purpose enumerated in § 28-51-103, irrespective of whether any personal property of the estate, other than money, is available for such a purpose.
(2) When real property has become an asset in the hands of the personal representative as provided in this section or when and as long as the court finds it necessary for the preservation of the property, for protecting the rights and interests ofpersons having interests therein, or for the benefit of the estate, the personal representative may collect rents and earnings from the property, pay taxes and special assessments thereon, make necessary repairs thereon, maintain the property in tenantable condition, preserve it against deterioration, protect it by insurance, and maintain or defend an action for the possession of the property, or to determine or protect the title until the real property is sold, mortgaged, leased, exchanged, or is delivered to the distributees thereof, or until the estate is settled.
Ark. Code Ann. § 28-49-101(b)(2) (Repl. 2004). | [
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McCULLOCH, C. J.
This is an attack upon the validity of a statute enacted by the General Assembly of 1917 (Act No. 165), creating a road improvement district designated as Road Improvement District No. 3 of Jackson County, to improve a public road in that county known as the Newport and Augusta Road, which is specifically described in the statute. The controversy arises in a suit instituted by appellant who is the owner of a tract of land within the boundaries of the district, against the commissioners named in the statute, and appellant seeks to restrain the commissioners from proceeding with the construction, the assessment of benefits and levy of taxes, and the issuance of bonds. The territory embraced in the district is not described by metes and bounds, but each tract of land embraced therein is described according to the method of description adopted on the plats of the government survey. The lands lie in a compact body on each side of the road to be improved, except that one tract of eighty acres is disconnected from the other lands, and lies two miles distant from any of the other tracts, and two miles distant from the road to be improved, the intervening lands not being embraced in the district.
The situation thus described with respect to the one disconnected tract is the ground for the principal attack made in this case on the validity of the statute. The road is on the section line between sections sixteen (16) and seventeen (17), sections twenty (20) and twenty-one (21), sections twenty-eight (28) and twenty-nine (29), and sections thirty-two (32) and thirty-three (33), in township (11) north, range two (2) west, but no part of section twenty-eight (28), which abuts on the road, is described. The east half of each of the other sections abutting on the west side of the road are included, and the west half of section twenty-six (26) in that township is included, the last named tract being entirely disconnected from the main body of lands described, and all of sections twenty-seven (27) and twenty-eight (28) lie between it and the proposed road.
It is insisted by counsel for appellee that the inclusion of the east half of section twenty-six (26) was an obvious error in framing the statute and that the east half of section twenty-eight (28) was intended to be included, and ought to be treated as being included in the district instead of the tract in section twenty-six (26). In support of that contention counsel call attention to the form in which the framers of the statute grouped the descriptions as clearly indicating an intention to describe the west half of section twenty-eight (28) instead of the west half of section twenty-six (26). All of the lands on the east side of the road are first described and then the following numbers are given in describing the lands on the west side:
“The west half of sections sixteen (16), twenty-one (21), twenty-six (26) and thirty-three (33), of township eleven (11) north, range two (2) west.”
(1) The method of description adopted by the Legislature does, indeed, indicate an intention to embrace all the lands abutting on the west side of the road, and this would indicate that a mistake was made in describing a portion of section twenty-six (26) instead of a portion of section twenty-eight (28), but it is quite a different question for us to undertake to treat this as merely a clerical error and undertake to correct the error by substituting a description of land which the framers of the statute entirely omitted. We may be fully satisfied that the Legislature intended to describe section twenty-eight, but yet we are powerless to correct the error, for the simple reason that to do so would be purely a matter of legislation on our part. That would constitute an amendment of the statute to conform to what we conceive to be the legislative intent. In other words, the case presents a situation where we are reasonably certain that the language, used does not express the legislative will, yet we are not at liberty to substitute the language which we think will express it.
The question comes down to this: Could the owner of the west half of section twenty-eight (28) complain if we were to construe the statute to include that tract? Unquestionably, the owner could complain, for the simple answer to that construction would be that the Legislature has not written the words into the statute which would constitute authority to assess that tract of land as a part of the lands affected by the improvement. It would be clearly a judicial encroachment upon the rights of the owner of that tract for the courts to undertake to substitute words describing that tract of land instead of words which the framers of the statute used in describing another tract. If the Legislature had given any other method of description, even though it conflicted with the present designation of boundaries by listing the lands, we might by construction reconcile the two descriptions by striking out words in one of the methods adopted so as to conform to the other method, but here we only have one method of describing the lands and that is by listing the numbers according to the government plats, and, if we discard that description, we have nothing else to resort to in ascertaining what lands are to be included.
(2) We are of the opinion, therefore, that we must treat the language describing the lands literally, and say that the Legislature intended to describe the west half of section twenty-sis (26), and to omit the lands in section twenty-eight (28). That being true, it necessarily follows that the act is, on its face, arbitrary and discriminatory in that it embraces a tract of land two miles distant from the other lands in the district and from the proposed road, and omits the intervening lands. In other words, the Legislature authorizes the taxation of a tract of land two miles distant from the improvement and omits the two sections of land intervening, and it is a demonstrable mistake on its face. Much is to be left to the judgment and discretion of the Legislature in creating improvement districts, and the court should always respect that determination, unless it is manifestly arbitrary, but it is the duty of the court to interfere where the statute shows on its face that it is arbitrary. Coffman v. St. Francis Drainage District, 83 Ark. 54.
(3) It is next contended that we may strike out the description of the land in section twenty-six (26) so as to eliminate that tract from the operation of the statute and uphold the district as to the other lands described. Counsel invoked the doctrine often announced in'decisions of this court to the effect that the unconstitutional portion of a statute may be stricken out without impairing the effect of the remainder where the provisions are wholly independent and it can be seen that the lawmakers would have enacted the remaining part of the statute. Parkview Land Co. v. Road Improvement District No. 1, 92 Ark. 93, is a typical case announcing that doctrine. 4 The doctrine can not be applied, however, in a case like this which affects the validity of an assessment of lands according to legislative determination. We must treat the statute as a determination by the Legislature that it is appropriate and just to impose the cost of the improvement upon all of the tracts of land included in the district, and if we strike out one of the tracts we vary the legislative decision and impose an additional burden on the other lands described. We can not include section twenty-eight (28) in the district because the Legislature has given no authority to do so, and to uphold the validity of the district with section twenty-six (26) excluded would be to create an improvement district different from that authorized by the Legislature. This feature of the case is, we think, ruled by the decision of this court in Norton v. Bacon, 113 Ark. 566, where we said: “To exclude the territory from the plat would be to form a district of less territory than that included in the boundaries set forth therein; and, on the other hand, if we should include that territory in the .district, it would be done without notice having been'given to the owner as required by the statute. So we think that there is a fatal variance between the description of the lands embraced in the notice and those included in the plat and that this invalidates the formation of the district.”
The principle announced in that case was reaffirmed in Paschal v. Swepston, 120 Ark. 230. The tract of land in question forms a very small part of the large territory embraced in the district, but we can not treat it as being too insignificant to be seriously taken into account in adjudicating the rights of the parties who own lands in the district. We do not know what its value really is compared with the other lands in the district. We must assume, at least, that it is of substantial value, and that is sufficient to call for the application of the principle herein announced, for if we undertake to vary the application of those principles according to the amount or value involved, we would have a very uncertain rule. „
Our conclusion, therefore, is that the words of description employed by the lawmakers can not be varied and that, reading the descriptions literally, we find a statute which is so arbitrary and discriminatory on its face that it is void. The decree is, therefore, reversed and the cause remanded with directions to enter a decree in accordance with this opinion. | [
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Humphreys, J.
Appellants, real estate owners in Special Road Improvement District No. 7, in Polk County, instituted this suit against appellees in tbe chancery court of said county to prevent tbe commissioners from constructing tbe improvement. Tbe district was created by Special Act No. 312 of tbe General Assembly for tbe year 1920. • The basis of tbe injunction proceeding is tbe alleged invalidity of the act creating tbe district and the assessment of benefits made thereunder.
The constitutionality of tbe act is questioned; first, because no provision was made therein for tbe approval by tbe county court of changes that might be made in tbe route; second, because tbe act did not make provision for tbe construction of the bridges to be let to tbe lowest responsible bidder; third, because tbe effect thereof was to take property without due process of law; and fourth, because tbe commissioners were authorized to maintain tbe road after being built, and to make contracts for that purpose.
The validity of assessments is assailed, first, on account of the basis adopted in making them; and second, because arbitrary and confiscatory.
Appellees filed an answer denying all the material allegations of the bill for injunction, and the cause was presented for hearing upon the pleadings and- testimony of G-. L. Clement, one of the assessors for the district, whose testimony was agreed to as facts in the case and incorporated in the decree. The trial resulted in upholding the validity of the act, but enjoining the commissioners from making the improvement without advertising for bids, as being contrary to public policy. Both appellants and appellees have prosecuted an appeal from the decree in so far as same is adverse to them, and the cause is before this court for trial de novo. For convenience we have followed, and will continue to follow, the style of the case by referring to the property owners as .appellants and to the district and commissioners as appellees.
We first proceed to a consideration and determination of the several attacks made upon the constitutionality of the act in the order set forth in our statement of the ease. The principal attack is made upon section 2 thereof, which is as follows:
“Said district is hereby organized for the purpose of building, improving and maintaining the public road in Polk County, Arkansas, beginning near what is known as the Waltman place, or near the section line between sections nine and sixteen, township 2, south, range 30 west, thence in an easterly direction to the Montgomery County line, following as near as practicable what is known as the Mena-Cherry Hill public road. The said public highway extends to Ink, Egger, and thence to the Montgomery line. (Then follow the numbers of the townships through which it runs). Said highway is to be ■constructed of macadam or of such other materials as the commissioners deem best, or the same may be improved as, in the judgment of the commissioners, is best, without rebuilding all the way, and they are authorized to build such bridges and culverts as they may find desirable. Any bridges built shall be built and approved by the county court. In building and improving said highway, the commissioners may proceed by letting the work as a whole, or in sections, or they may build same, or a fractional thereof, by day labor, or they may use county and State convicts as may be conceded them by the State or by Polk County. In case bids are advertised for, the commissioners shall have the right to accept or reject any bid. ’ ’
(1) Appellants interpret § 2 of the act as giving permission to the commissioners of the road to materially deviate from the Mena-Cherry Hill public road, designated in the act as the route to be improved, and to construct a private road in part, which would impair the jurisdiction of the county court over same after completion for purposes of maintenance, etc., in violation of article 7, § 28 of the Constitution of 1874. This interpretation is placed upon the act because the commissioners are directed to follow as near as practicable what is known as the Mena-Cherry Hill public road in constructing the improvements between the points designated. This construction of the act would invalidate it, and should not be adopted if some other construction can be placed upon it, not inconsistent with any of its parts, which would enable it to take effect. Wells Fargo & Co. v. Crawford County, 63 Ark. 576; St. L. I. M. & S. R. Co. v. State, 102 Ark. 205. Effect may be given to each part of the act, and to the act as a whole, without creating any inconsistency between the parts, by construing it to mean that authority is vested in the commissioners to improve the Mena-Cherry Hill .public road, making only immaterial changes in the route thereof. The Legislature could confer this authority without encroaching upon the exclusive jurisdiction of the county court over public roads, and a careful reading of the whole act indicates that this was the intention of the Legislature. Of course, under this construction of the act, material changes cannot be made in the route unless made by an order of the county court. Bennett v. Johnson, 130 Ark. 507; Sallee v. Dalton, 138 Ark. 549; Summers v. Damascus Road Dist., 139 Ark. 227; Easley v. Patterson, 142 Ark. 52.
(2) The act provides for a private letting by the commissioners of a contract to build the bridges, and, for this reason, appellants insist that it is in conflict with § 16, article 19, of the Constitution of 1874, which in part is as follows:
“All contracts for erecting or repairing public buildings or bridges in any county, or for material therefor, * * * shall be given to the lowest responsible bidder, under such regulations as may be provided by law.”
The language used in the act conferring authority upon the commissioners to build bridges has been construed by this court to mean bridges incident to the improvement or necessary appurtenances thereto (Van Dyke v. Mack, 139 Ark. 524; Bullock v. Dermott-Collins Rd. Imp. Dist., 155 Ark. 176), so they are district improvements and not county improvements in the sense of being built with county funds. The section of the Constitution referred to is a limitation upon the expenditure of county funds for bridges, etc., in any county, and was not intended as an inhibition against districts building bridges incident to the main improvement, by pri-' vate contract.
(3) . The effect of the act is not to take property without due process of law, as contended by appellants. They argue that, because no provision is made for an appeal, their property is taken without due process of law. Ample provision is made in the act itself for a judicial review of the assessments made by the board of assessors. Section 10 of the act is, in part, as follows: “Any person, firm or corporation aggrieved by the action of the board of assessors fixing the assessment list, as herein provided, shall have the right for twenty days from the adjournment of said board of assessors sitting as a board of equalization, as before said, to apply to any court of competent jurisdiction to set aside assessment list, or to correct any void or erroneous assessments, and, after the expiration of twenty days, the said list shall become final and incontestable either in law or equity. ’ ’
Appellants also argue that, because no provision is made in § 11 for notice to them when assessments are revised by the assessors, their property is being taken without due process of law. Section 10 of the act provides that assessors shall make assessments of benefits when directed to do so by the commissioners, and, when such assessments are made, shall place same in the hands of the president of the board of commissioners, who shall thereupon cause notice to be published. This requirement in § 10 necessarily applies to revised as well as original assessments. As the notice provided for in § 10 applies to all assessments, we think it unnecessary to have repeated the direction for notice in § 11.
(4) The act is not void because it contained a provision continuing the board of commissioners for the purpose of repairing and maintaining the road after the completion thereof. This precise question was before the court in the case of Dickinson v. Reeder, 143 Ark. 228, and was decided adversely to the contention of appellants. The court said, in that case, “that maintenance is, after all, a local improvement, and is done for the betterment of the contiguous lands, and it does not interfere with the general authority of the county court over public roads. The two powers go hand in hand, that of the county court being superior in event of possible conflict. It is a mere choice in the form of the legislation as to whether the authority to maintain the road shall be embraced in the same statute and conferred upon the same agency as that which concerns the original improvement, and in neither case is the jurisdiction of the county court invaded.” See also Van Hook v. Wallace, 143 Ark. 203.
We next come to a consideration of the attack made upon the assessments of benefits. Ample provision is made in the act to defend against assessments upon all the grounds made the basis of attack in this proceeding., This suit was brought before the day fixed in the notice for the assessors to meet and hear complaints against the assessment of benefits. The property owner should appear at the time and place designated to show that his property is not benefited, or that the tax amounts to a confiscation thereof. Bush v. Delta Road Imp. Dist., 141 Ark. 247; Van Hook v. Wallace, supra.
The decree is affirmed, except in so far as it enjoined the commissioners from awarding any contract for the construction of the improvement, including bridges. In that particular it is reversed, and remanded with direction to dismiss the bill for injunction. | [
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Smith, J.
Appellant was convicted under an indictment which reads as follows: “ The grand jury of Union County, in the name and by the authority of the State of Arkansas, on oath, accuse the defendant, A. Coliman, of the crime of receiving deposits in an insolvent bank, committed as follows, to-wit: The said defendant, on the 20th day of November, 1922, in Union County, Arkansas, did unlawfully, wilfully, knowingly and feloniously accept and receive on deposit in the Guarantv Bank & Trust Company, a corporation organized and doing a banking business under the laws of Arkansas, of El Dorado, Arkansas, from one W. J. Sinclair, the sum of $12,519.62 in gold, silver and paper money, the said A. Coliman then and. there being president of said Guaranty Bank & Trust Company, and acting as such, and said sum of $12,519.62 then and there being the property of said W. J. Sinclair and said deposit consisting of gold, silver and paper money (batik bills, or notes, or United States treasury notes, gold or silver certificates, or currency, or other notes, bills or drafts, circulating as money or currency), said bank then and there being insolvent, and said defendant then and there well knowing same to be insolvent, against the peace and dignity of the State of Arkansas.”
There was a demurrer to this indictment, which was overruled, but defendant did not stand on the demurrer. It was the theory of the court that the italicized words inclosed in parentheses were surplusage. The defendant thereafter filed a motion to strike these words from the indictment. When' this motion was made, the prosecuting attorney reminded counsel for defendant that an indictment could not be amended, whereupon counsel for defendant said: “If the court please: It is only to save confusion, in order to make the indictment certain, so we know what we are being tried upon, and it ought to be stricken, and we urge that it be stricken.” We conclude therefore that any error in overruling the demurrer was waived by striking out, on defendant’s own motion, the portion of the indictment which was said to render it defective.
This observation also disposes of the assignment of error that the court erred in overruling a motion in arrest of judgment.
Sinclair, the man who made the deposit set out in the indictment, testified that on February 14, 1922, he deposited in the bank, to his account, two checks, properly indorsed, amounting to $12,519.62, one of which was for $11,000, and the other for the balance. Witness testified that “a man by the name of Taylor took the deposit, and Medley was standing opposite him when he accepted it.” Objection was made to this answer, and counsel for defendant asked that the answer be stricken ont, for the reason that it was not responsive to the charge in the indictment, and was a variance from the charge contained in the indictment. Exceptions were duly saved to the refusal of the court to strike out the question and the answer. It appears that defendant was not present when the deposit was made, and was not, in fact, in the State at that time, although he was president of the bank and kept a desk there.
A few days after this deposit was made a run started on the bank, which continued for several days, and resulted in the bank closing its doors. The State Banking Department took charge, and gave the officials of the bank five days within which to meet certain prescribed conditions and reopen for business, but the conditions were not met, and the bank did not reopen, and the banking department continued in charge, • and was engaged in winding up its affairs at the time of defendant’s trial.
Defendant returned home while the run on the bank was in progress, and he endeavored to reassure depositors that the bank was solvent, and on two successive days he assured Sinclair that the bank was solvent, and that he would incur no loss on account of his deposit.
The testimony shows that Sinclair not only received credit to his account, which was noted on his passbook, but that the bank itself actually received thé cash on the checks from the bank on which the checks were drawn.
The deputy bank examiner who took charge of the bank detailed at great length the character and value of the different assets belonging to the bank at the time he took charge, and, without reviewing this testimony, it suffices to say that the testimony is sufficient to support the finding that the bank was in fact insolvent when the denosit was received; and we think the testimony also sufficient to support the finding that defendant was aware of its insolvency.
The statement was made during the progress of the trial that the prosecution was under § 730, C. & M. Digest; and this section authorizes the imposition of a sentence in the penitentiary for a period of not less than three years and of not more than five years, and defendant’s sentence was fixed by the jury at four years. This section is a part of an act of 1901, and it is insisted that it was repealed by § 31 of the Act of March 3, 1913, which section of that act appears as § 697, C. & M. Digest, and which provides a punishment of imprisonment in the penitentiary for not less than one year, and it is insisted that, under this § 697, the maximum punishment is imprisonment for a period not exceeding one year.
It is in order to first determine whether § 730, C. & M. Digest, was repealed by the later statute, and we answer this question in the affirmative. A careful study of the two sections makes it apparent that the whole subject-matter to which the older statute relates is fully covered by the later statute. The first statute makes it unlawful for an insolvent bank to accept or receive deposits of the kind there named. The later statute, without naming the various kinds of deposits which might be made, makes it unlawful for an insolvent bank to receive any deposit, and, in addition thereto, makes it unlawful for such a bank to create any debt, and, after doing so, changes the punishment and makes the amended provision in regard to the punishment applicable alike to the receipt of deposits and the creation of debts. This being true, it must be held, in accordance with numerous decisions of this court, that, by implication, the earlier statute has been repealed. Hampton v. Hickey, 88 Ark. 324; C. R. I. & P. Ry. Co. v. McElroy, 92 Ark. 600; Lawyer v. Carpenter, 80 Ark. 411; Western Union Tel. Co. v. State, 82 Ark. 302; Milwee v. Board of Directors, 105 Ark. 77; Eubanks v. Futrell, 112 Ark. 437.
Counsel insist that, if § 697 is the applicable statute, his punishment could not exceed one year’s imprisonment in the State Penitentiary, for the reason that this statute imposes a penalty for its violation of “not less than one year,” the insistence being that this language should be interpreted as meaning one year, neither more nor less; and that if the statute is otherwise interpreted it leaves the jury free to impose a sentence of any length, and would therefore offend against § 9 of article 2 of the Constitution, which provides that cruel or unusual punishment shall not be inflicted, and is .therefore void.
The courts do not, however, so construe such statutes. A leading case on the subject is that of Frese v. State, 2 Sou. 1. In that case it was contended that a statute of the State of Florida, which provided that a person convicted of selling intoxitíating liquors without license should be punished by a fine of not less than double the amount required for the license, but which did not prescribe a maximum fine, violated the provision of the Constitution of that State that “excessive fines shall not be imposed.” In the opinion in that case it was said: “The same provision against excessive fines is to be found in the English bill of rights, and we learn from Blackstone and other authorities that it was not necessary for a statute fixing the punishment of an offense by fine or imprisonment to do more than declare the general nature of the punishment, viz., by fine or imprisonment. The duration and quantity of each must, says' Blackstone, frequently vary from the aggravation, or otherwise, of the offense, the quality and condition of the parties, and from innumerable other circumstances, and ‘the guomtwm, in particular, of pecuniary fines neither can nor ought to be ascertained by an invariable law;’ and he says the -statute law has not often, and the common law never, ascertained the quantity of fines. The bill of rights (which, according to Blackstone, was only declaratory of the old constitutional law of England) restrained or regulated, by the provision referred to, the discretion of the judges in adjudging the quantity of the punishment.” It was there pointed out that, though it was custofnary in that State for either the maximum, or the minimum and the maximum of fine or imprisonment with which an offense can be punished, to be declared by statute, yet there was no constitutional provision expressly providing that such limit or limits should be declared by statute, nor any provision, the effect of which was to make an omission by the legislative department to fix or prescribe a maximum punishment, fatal to a statute which prescribes only the minimum. The court then proceeded to say: “The mere failure to fix the maximum of a fine is not the imposition of an excessive fine. In the absence of a statutory declaration of a maximum, the courts are regulated or restrained by the same provision of the bill of rights that the citizen relies upon for protection against the infliction by them of excessive fines within the maximum, where such a maximum has been prescribed by statute. It cannot be denied that a fine imposed by a court upon a person may, upon the facts and circumstances of the particular case, be excessive, though within the maximum. Though such a statute may be clearly free from the charge of unconstitutionality, yet it might be that a judge, in fixing, or in approving or sustaining a fine fixed 'by a jury, would err in the qucmtvm of the fine inflicted. He may go too far above the minimum, where both a minimum and a maximum were specified, or too close to the maximum, where only a maximum was prescribed by the statute. In such case the citizen’s reliance for an enforcement of the provision of the bill of rights is upon the appellate courts, and upon the executive power to remit fines, commute punishment, and to grant pardons. This reliance is the same where the statute merely prescribes the minimum fine. The statute in question, when judged by the well-known rules governing in such cases, and which reauire that there must be a clear antagonism to some constitutional nrovision, violates no provision of our Constitution. While we deprecate such legislation, and deem it better, and more in accordance with well-established custom, that at least the maximum of any possible fine should be fixed by the Legislature, we can find no authority that makes it necessary. The following authorities sustain the conclusions reached above: 2 Bl. Comm. 377-379; Toml. Law Dict. ‘Fines’ 796; State v. Danforth, 3 Conn. 112; Cooley, Const. Lim., 402 et seq.; Pervear v. Com., 5 Wall. 475.”
In the case of In re Yell, 65 N. W. 97, an attack was made on a statute of the State of Michigan which prescribed only a minimum fine, and the Supreme Court of that State, in upholding a conviction under it, said: “There is no express constitutional requirement that the Legislature shall, in enacting penal statutes, fix the maximum penalty. It is true that this is generally done, but when it is not done the power to impose a fine is limited by the constitutional provision that excessive fines shall not be imposed. The only case to which our attention has been directed in which the constitutionality of a statute fixing the minimum and not the maximum punishment has been considered, is Frese v. State (Fla.) 2 Sou. 1. In a well-reasoned opinion the constitutionalitv of such a statute is maintained, and it is pointed out that the precise penalty is not usually fixed in a penal statute, but, where there is a constitutional provision that excessive fines shall not be imposed, the statute is to be read in connection with it, and such constitutional provision limits the power of the court which administers the law.”
In the case of State v. Stumbaugh, 132 N. W. 666, the Supreme Court of South Dakota reviewed a. judgment in which the appellant had been convicted under a statute of that State which provided that “every person guilty of manslaughter in the first degree is punishable by imprisonment in the State prison for not less than four years.” In upholding a sentence of twelve years it was there said: “It was competent for the Legislature to impose such penaltv as it might deem proper, and leave it discretionary with the trial court as to the term of imprisonment the trial court might impose in excess of four vears, in view of all the circumstances of each particular case. The Legislature therefore, in limiting the trial court to four years as the minimum term, necessarily left it discretionary with the trial court to impose any reasonable term of imprisonment, not in violation of the constitutional provision which prohibits ‘cruel’ punishment. And, in view of the evidence in the case at bar, this court cannot say that the term of 12 years, as designated by the trial court, constituted cruel punishment. Article 6, § 23, St. Const.; State v. Becker, 3 S. D. 29, 51 N. W. 1018.”
A similar conclusion was reached by the Supreme Court of Oklahoma in the case of Baysinger v. Territory, 82 Pac. 728, where a sentence of twenty-five years was imposed on a defendant for manslaughter in the first degree, the statute providing for a punishment of not less than four years for the commission of that offense. See also State v. Kight, 119 N. W. 56; State v. Pearson, 34 Sou. 575; Southern Express Co. v. Com., 92 Va. 59, 41 L. R. A. 436; Latshaw v. State, 59 N. E. 471; State v. Williams, 77 Mo. 310; State v. Fackler, 74 N. W. 1029.
The indictment alleges that defendant “accepted and received” the deposit, and, as we have said, the testimony shows that he was not present when the deposit was received. This offense, like any other, might be committed by one’s own act in accepting or receiving the deposit, and the words “accepting or receiving” have been held to be synonymous (Morris v. State, 102 Ark. 513); or by being an accessory to the receipt, or acceptance by standing by, aiding or assisting in the receipt or acceptance. In either of these events he would be a principal offender, and should be indicted as such. ¡But there might be a case when the accused, not being present, had advised or encouraged the acceptance of the deposit, in which event he would be an accessory, and should be indicted as such.
Section 730 of C. & M. Digest appears to have been copied verbatim from the Kansas statutes (Laws 1891, ch. 43, §16), and before the enactment of our statute the Supreme Court of that State had construed their statute. In the ease in which this was done, it was charged that the accused (the president of a bank) had received and accepted the deposit, while there, as here, there was no testimony showing that the accused had done so, or was present standing by, aiding or abetting the receipt and acceptance of the deposit. The Supreme Court of Kansas held that the testimony' did not support the allegations of the indictment, and in so holding said: “It must be borne in mind that the Baxter Bank was a corporation. The connection of the appellant with it was that of an officer. He is not charged with being the owner. The other persons connected with the bank were its officers and employees. Possibly a private banker, who employed clerks and servants to receive deposits, might be bound, even in a criminal case, by their acts, where their possession immediately became his; but the statute, as framed, seems to denounce its' penalties against the individual who shall take deposits -into the bank when he knows it to be insolvent, and also against all others who knowingly permit’ or connive at their reception (Citing State v. Wells, 35 S. W. 615). Whether the evidence given at the trial in this case was sufficient to uphold a charge against the defendant of having permitted or connived at the receipt of the deposits, we need not decide. The charge is that he accepted and received. The word ‘accepted’ implies that the bank received, and that he agreed and assented to the reception. He could not accept without at least knowing what was received. The proof being insufficient to sustain the conviction under these counts of the information, the motion for a new trial should have been sustained. The judgment is reversed. All the justices concurring.” State v. Warner (Kans.) 55 Pac. 342.
As we have said, § 730 has been superseded by § 697, but the legal principle announced in the Kansas case above is applicable to a prosecution under either § 730 or § 697.
Section 697 provides: “* * * And if any such officer, employee, member of firm or individual shall knowingly receive a deposit or cause a debt to be created, or assent thereto, or in any manner is accessory to such crime, he shall be guilty of a felony, and, upon conviction, shall be punished by imprisonment in the penitentiary for 'not less than one year.”
The principal and the accessory are made equally guilty, but there appears to be nothing in the statute which changes the rule of criminal pleading that only a principal can be indicted as such, and that one guilty as an accessory must be indicted as such.
The decision of the Supreme Court of Missouri in the case of State v. Wells, 35 S. W. 615, construing a similar statute of that State, gives full support to the views expressed above.
Defendant sought, by numerous objections to questions asked, and by objections to instructions given at the suggestion of the prosecution, and by requests for instructions which he asked himself, to raise the question that a conviction could not be had under the allegations of the indictment, without showing that he either accepted or received the deposit, or stood by and aided, abetted or assisted in its receipt or acceptance; but.the court charged the jury, in effect, that it was not necessary that defendant be present at the time the deposit was made, but that he would be criminally liable for the reception of such deposit if he were shown to be president of the bank and knew at the time that the bank was insolvent. This was error, because the allegations of the indictment charged defendant as a principal. Wood v. State, 159 Ark. 503; Harper v. State, 151 Ark. 338; Gill v. State, 59 Ark. 423; Friend v. State, 109 Ark. 498; Hughey v. State, 109 Ark. 389; Williams v. State, 41 Ark. 173; Smith v. State, 37 Ark. 274.
The State cites and relies upon the case of Wilkin v. State, 121 Ark. 219. .But that case does not conflict with the views here expressed. There the accused was charged with knowingly accepting and receiving the deposit, and of permitting and conniving at the receipt and acceptance on deposit of money in the bank of which he was president when the bank was insolvent.' Under these allegations we held that it .was no defense that the deposit was received while the accused was out of the State, this being done on the theory that a conspirator is criminally responsible in any place where any overt act is done by any of his co-conspirators. In that case the instructions ignored the theory of the defendant that he did not conspire with the cashier, who received the deposits, to receive them while he was not present,- and, for the refusal to submit this defense to the jury, the judgment was reversed, and the cause remanded with directions to submit that issue. ,
The defendant requested a number of instructions on the subject of insolvency, and objected to those given by the court which defined that term. The court appears to have committed no error in this respect, and we will not review this question, as the law of the case was reviewed in the recent case of Hanson v. State, 160 Ark. 329.
Appellant raises the question, however, that a bank could not be deemed insolvent if the assets of the bank, in addition to the stockholders’ liability under §702, C. & M. Digest, are sufficient to discharge all liabilities. This section imposes a liability on the stockholders ratably, and not one for the other, for all contracts, debts, and engagements of such bank to the extent of the amount of their stock therein, at the par value thereof, in addition to the amount invested in such stock. But this additional liability cannot be taken into account in determining* solvency, under the definitions of that term- which we have approved in the Hanson case, supra, and in the cases of Wilkin v. State, supra, and that of Skarda v. State, 118 Ark. 176. This stockholders’ liability is not an asset available in the usual and ordinary course of business; indeed, as to manv stockholders, this liability-might never become an available asset, through the unwillingness or the inability of the stockholders to discharge it.
It is insisted that there is a variance as to the deposit made, inasmuch as the testimony shows that no gold, silver nor paper money was received on deposit, but that only bank drafts were received. But these drafts were received at their face value as money, and were cashed by the bank, and thereby converted into money, and there was therefore no variance between the allegations of the indictment and the testimony. Gurley v. State, 157 Ark. 413; Sharda v. State, 118 Ark. 176.
There are other assignments of error, but they relate to matters which are not likely to become important upon a second trial, and for that reason they are not discussed.
As defendant was indicted as a principal, and the testimony shows that, if guilty at all, he was guilty as an accessory, the judgment must be reversed, and it is so ordered. | [
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Humphreys, J.
This suit was instituted in the chancery court of Sevier County on March 12, 1921, by Zilphie Gilmore against appellant, appellee and. G. S. Gilmore, her husband, to cancel an assignment of two certificates of deposit to the First National Bank of Broken Bow, an Oklahoma corporation, one of which had been issued to her and the other to her husband by ■the Bank of Horatio, an Arkansas corporation, and to collect the deposit. She alleged that she deposited $300 in the Bank of Horatio for which the certificates were issued1, and that she was induced to sign them to the First National Bank of Broken Bow, in, payment of her husband’s indebtedness to it, through the false representation that her husband had committed a felony by trading certain property which he had mortgaged to it, when, in truth-and fact, said bank had consented for. him to trade the property. Ancillary to this suit, an injunction was obtained impounding the fund evidenced by the certificates in the Bank of Horatio. S. G. Gilmore and the Bank of Ploratio were personally served with summons, and the First National Bank of Broken Bow was constructively served by delivering a-.copy of the complaint, with summons attached to it, in the manner provided by § 1157 of Crawford & Moses’ Digest.
The Bank of Horatio answered, admitting the deposit of the fund and the issuance of the certificates, offering to pay the fund to the party adjudged to be lawfully entitled thereto.
The First National Bank of Broken Bow entered its appearance specially for the purpose of filing a motion to quash the service, but never obtained a ruling thereon. At the October term, 1921, of the court, the cause was submitted upon the pleadings and testimony, from which the court found that the Bank of Horatio and G-. S. Gilmore had been personally served, and that the First National Bank of Broken Bow had been constructively served; that the assignment of the certificates had been induced through fraud, and for that reason the title thereto had not passed, and that the plaintiff, Zilphie Gilmore, was the owner of them, and ordered the payment of the fund evidenced by the certificates to said plaintiff, upon execution of the bond to the nonresident defendant, the First National Bank of Broken Bow, in the manner provided and for the purpose specified in § 6266 of Crawford & Moses’ Digest. The bond was executed and the money paid to plaintiff in accordance with the decree of the court.
On the fifth day of April, 1922, appellant presented its motion, answer, and cross-bill under the authority of § 6266 of Crawford & Moses’ Digest, to obtain a retrial of the cause upon its merits. The pleading filed by the appellant denied the material allegations in the complaint of Zilphie Gilmore, and alleged that the assignment of the certificates was voluntary on her part; “that the decree entered October 25, 1921, was void and constituted no authority to the Bank of Horatio to pay this money to plaintiff; that personal service had not been obtained upon this bank; that this court had no jurisdiction over the certificates of deposit, said certificates being outstanding negotiable instruments out of the jurisdiction of this court, the situs thereof being in Oklahoma; that said certificates were not impounded and held under any writ of garnishment or attáehment of this court, and that plaintiff and the First National Bank of Broken Bow were at all times during the progress of this suit residents of Oklahoma.” The prayer was that the judgment be set aside, and that it have judgment over against the Bank of Horatio.
The Bank of Horatio answered, in substance, that® the First National Bank of Broken Bow was constructively summoned; that the decree ordering it to pay the fund over to Zilphie Gilmore was not void, but, on the contrary, was regular and valid.
The cause was again heard upon the pleadings and testimony, which resulted in a finding that the assignment of the certificates was not induced through misrepresentations, but was voluntarily made, and a decree against Zilphie Gilmore and her bondsmen for the amount of the deposit, from which no appeal was prosecuted; also a finding that the First National Bank of Broken Bow was not entitled to recover from the Bank of Horatio, and a consequent decree dismissing its cross-complaint against said bank. Appellant has appealed from the decree dismissing its cross-complaint against appellee, and that branch of the case is before us for trial de novo.
Appellant contends for a reversal of the decree upon the ground that the situs of the action was at Broken Bow, Oklahoma, the place of appellant’s residence. In other words, it contends that the action was strictly in personam, and that the chancery court of Sevier County, Arkansas, had no jurisdiction to render a judgment affecting a fund for which it held certificates of deposit, upon constructive service. We cannot agree with appellant that this proceeding was one strictly in personam. The fund evidenced by the certificates was the real subject of litigation. It was in the Bank of Horatio. In form the certificates are not negotiable. They are assignable under the statute of this State (§ 475 of Crawford & Moses’ Digest), but not in the sense of commercial paper. The purchaser of such certificates only acquires title by assignment, subject to all defenses which might have been made to them in . the hands of the original payee. It is true this suit was against appellant, but it concerned the ownership of a fund not evidenced by negotiable paper in a com mercial sense, which fund was within the jurisdiction of the court and which had been impounded by ancillary injunction issued out of the court. It was an action quasi in rem, or in the nature of a suit in rem. 1 R. C. L., Actions, § 13. For this reason the situs of the action was where the fund was located. It follows that constructive service in respect to ownership and disposition of the particular fund was sufficient to bring appellant, who was a nonresident, and who claimed an interest in the property, into court. While no personal decree could have been rendered against appellant upon constructive service, any decree rendered with respect to the disposition of the property was binding upon it, unless after-wards modified or set aside. The fact that the court rendered a decree ordering the Bank of Horatio to pay the fund to Zilphie Gilmore, before passing upon the motion to quash the service, made no difference. Appellant abandoned the motion by not requesting a ruling thereon before or at the time the cause was submitted. The judgment was not void. The reversal of its former finding and decree by the trial court as to the plaintiff, Zilphie Gilmore, upon the merits, did not automatically work a reversal of the decree ordering the Bank of Horatio to pay the fund to said plaintiff. Appellant obtained a reversal of the cause under § 6266 of Crawford & Moses’ Digest, which is as follows:
“When a judgment has been rendered against'a defendant or defendants constructively summoned, and who did not appear, such defendants or any one or more of them may, at any time within two - years, and not thereafter, after the rendition of the judgment, appear in open court and move to have the action retried; and, security for the costs being given, such defendant or defendants shall be permitted to make defense, and thereupon the action shall be tried anew as to such defendant or defendants as if there had been no judgment, and, upon the new trial, the court may 'Confirm, modify or set aside the former judgment, and may order the plaintiff in the action to restore to any such defendant or defendants any money of such defendant or defendants paid to them under such judgment, or any property of such defendants obtained by the plaintiff under it and yet remaining in his possession, and pay to the defendant the value of any property which may have been taken under an attachment in this action or under the judgment and not restored; provided, the provisions of this action shall not apply to judgments granting a divorce, except so far as relates to alimony.”
It will be observed that the only relief accorded a defendant constructively served under that section, if the judgment is modified or set aside, is for an order against the plaintiff and his bondsmen for a restitution of money wrongfully received by him, or the restoration of property wrongfully received which is still in his possession. Appellant received a judgment for the restoration of the fund against appellant and her bondsmen, and this was all it was entitled to under the statute.
No error appearing, the judgment is affirmed.
McCulloch, C. J., and Smith, J., dissent. | [
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Smith, J.
Appellant was indicted for selling intoxicating liquor, and was found guilty as charged.
For the reversal of the judgment of the court sentencing him to the penitentiary, two errors are assigned; (1), that the venue was not proved; and (2), that the testimony did not show a sale-prior to the date of the indictment.
The testimony on the part of the State was to the effect that the sale was made behind Shaffer’s hardware' store, in the town of Manila. Now, the court knows judicially that by-act '81 of the Acts of 1901, page 136, Mississippi County was divided into two judicial districts, which were there called the Osceola District and the Chickasawba District; and we also know that Manila is in the Chickasawba District thereof; indeed, this fact appears from the act itself, as § 4 thereof provides that the citizens of the Chickasawba District should determine, at an election which the -act directed to be held for that purpose, whether the courts of that dis trict should be held at the town of 'Manila or Blythe-ville. The indictment alleges the venue in the Chickasawba District of Mississippi County, and, as we have said, we judicially know that Manila is situated in that district. Bonner v. Jackson, 158 Ark. 526; Guerin v. State, 150 Ark. 295; Wells v. State, 151 Ark. 221.
The indictment was returned by the grand jury and filed in open court on April 6,1922, and the trial was had at the April term, 1923. One of the State’s witnesses did testify that the sale was made in the fall of 1922, but, upon being pressed to be definite, answered that the sale was made in 1921. Another witness, who was asked about the time of'alleged sales, answered that he bought liquor from appellant on Christmas eve. He was further asked: “Q. This last Christmas eve or the one before that? A. The one before that. Q. In the town of Manila? A. Yes sir.. Q. You don’t know whether that was in the Chickasawba District of Mississippi County or not, do you? A. No sir.”
"We think this testimony warranted the finding that the sales were made prior to, and not since, the date of the indictment.
No error appears, and the judgment is affirmed. | [
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■Smith, J.
Appellee was the plaintiff below, and sued in equity to recover on the following writing:
“Birmingham, Ala., May 23, 1921.
“M. W. Elkins & Co., Little Rock, Ark.
“jRe Tyronza-St. Francis Road District, Cross County, Ark.
“Gentlemen: I am today in receipt of bonds Nos. 76, 77, 78, 79, 80, 81, 87 and 88 issued by the above district. I agree to return these to you within sixty (60) days from this date, as you have merely loaned me the bonds to assist me in taking care of my payroll on the above work, and it is thoroughly understood that I am to return to you the above bonds within 60 days without any payment on your part.
“If I should fail to return the bonds to you within sixty days from the above date, I agree to pay you at the rate of 85c on the dollar and accrued interest for the above bonds.
“Tours truly,
“Newell Contracting Company,
“By A. T. Newell.”
He alleged the failure to return the bonds, and prayed for judgment for $6,800. As an incident to this suit appellee alleged that the appellant company (hereinafter referred to as the company), was engaged in construction work under a contract with a road improvement district in Chicot County, and a garnishment issued against the district for the sum due the company under that contract.
The company filed an answer and a cross-complaint. It admitted execution of the writing set out above, and, by way of cross-complaint, alleged that it had entered into a contract to construct the roads in the Parkin & Tyronza Road Improvement District in Cross County and that, prior to the execution of this contract, appellee had contracted with that district to purchase the bonds of the district and to pay therefor 87.75 cents on the dollar, the bonds to be taken np and' paid for in such amounts as was necessary to pay the estimates given to the company on its work under its construction contract. That on December 13, 1920, after, the company had done a considerable amount of work, and had received from the engineer estimates thereon which entitled it to be paid the proceeds of bonds in discharge thereof, appellee made default in his contract with the district to take up the bonds. Whereupon appellee called a meeting of the commissioners of the district and the president of the company to confer with him on the subject of his contract to buy the bonds. At this meeting appellee admitted his inability to take the bonds, and asked the commissioners of the district to hold down the work during the remainder of December and during the months of January and February, and proposed that, if this was done, he would be prepared, after March 1, to pay for enough bonds to pay the company for the work covered by the engineer’s estimates, and would thereafter take up enough of the bonds each month to pay for such work as the company was able to do. It was then agreed that estimates for not exceeding $7,500 should be given by ■ the engineer for work done during the months of January and February, respectively. On the date on which this agreement was reached the parties executed the following writings:
“Little Rock, Ark., Dec. 13, 1920.
“Mr. M. W. Elkins, Little Rock, Arkansas.
“Be: Tyronza & St. Francis Road Improvement District, Cross County, Arkansas.
“Dear sir: On the thirty-six thousand ($36,000) dollars of bonds I am to receive from the Mercantile Trust Company, on a basis of 87.75 cents on the dollar, maturing in the years 1924, 1925 and 1926, I agree to deliver these bonds to the Mercantile Trust Company at any time you request, by having the bonds' shipped to the Mercantile Trust Company. St. Louis, Missouri, and to be paid for when received there at the rate of 87.75 cents on the dollar and accrued interest from December 17, 1920, to date the bonds are taken up and paid for at the Mercantile Trust Company.
“Very truly yours,
“Newell Contracting Cpmpany.
“By A. T. Newell, Pres.”
“December 13,1920.
“Mr. A. T. Newell, 1531 First Ave., Birmingham, Ala.
“Re: Tyronza & St. Francis Boad Improvement
District, Cross County, Arkansas.
“Dear sir: In reply to your letter of this date, I agree to take up the thirty-six thousand ($36,000) dollars of bonds named in your letter, on March 1,1921, and I agree to take up on April 4, 1921, the estimate due January 4, 1921, not to exceed $7,500. On May 4, 1921, I agree to take up the estimate due on February 4, not to exceed $7,500.
“Very truly yours,
“MWE: W M. W. Elkins.”
The cross-complaint further alleged that appellee defaulted in his agreement to redeem bonds, but, when called upon to do so, proposed to furnish either $2,500 in money or eight bonds for a thousand dollars each, to be used by the company as collateral, and the writing herein sued on was executed. That the writings dated December 13 related to bonds to cover estimates then outstanding and the estimates for January and February, which were not to exceed $7,500 for each of those months, and that an oral agreement was made which covered the other estimates to be received from the district’s engineer in the construction of the improvement. This oral agreement was to the effect that the trustee named in the contract for the sale of the bonds by the district to appellee should, on the order of the district, issue to the company bonds at 87.75 in payment of these additional estimates, and that, after March, appellee should redeem the bonds so issued to the company at the contract price for the sale of the bonds to appellee; and it was alleged that, pursuant to this agreement, the company took bonds in payment of estimates to the extent of $100,000, in addition to the $36,000 in bonds covered by the letters of December 13, but appellee failed to redeem the $100,000 of bonds at the contract price as agreed, and the company was compelled to sell them at the best price then obtainable, which was eighty cents on the dollar and accrued interest, and judgment was prayed for the loss thus sustained.. Appellee filed an answer denying the allegations of the cross-complaint.
Upon the issue thus joined the parties proceeded to take testimony, and the company executed, with the perfuission of the court, a bond which secured the release of the funds of the Chicot County Eoad Improvement District.
On January 19, 1922, after most of the testimony had been taken, the company filed an amendment to its answer, in which the jurisdiction of the chancery court was challenged, upon the grounds that the complaint contained no allegation of the company’s insolvency, and did not allege that the Chicot County district had completed its improvements, and the same had not, in fact, been completed, and its funds were not therefore subject to garnishment.
The court sustained a motion to strike this amendment to the answer from the files, on the grounds that it was filed out of time and without permission, and that the company had invoked the aid of the court to secure affirmative relief.
Upon the final hearing the court dismissed the cross-complaint as being without equity, and rendered judgment against the company in the sum of $6,800, and this appeal is from that decree. Other facts will be stated in the opinion.
We agree with counsel for the company that the chancery court was originally without jurisdiction, because there was no allegation of the company’s insolvency, and there should have been no garnishment in this case, because the Chicot County district, the garnishee, had not completed its improvement. .These governmental agencies are not subject to garnishment prior to the completion of the improvement to construct which they are .created. Bayou Meto Drain. Dist. v. Chapline, 143 Ark. 466; Henslee v. Hobley, 148 Ark. 181; Road Imp. Dist. No. 4 v. Southern Trust Co., 152 Ark. 438; Greening v. Planters’ Bank & Trust Co., 147 Ark. 477. See also numerous other authorities to the same effect cited in the appellant’s brief.
However, this question was not raised in apt time; indeed, it was not raised at all until the discharge of the garnishment had been secured; and, by asking affirmative relief, the company waived the failure of the complaint to contain the allegations essential to confer jurisdiction on the chancery court.
The action of the court in dismissing the cross-complaint and in rendering judgment on the writing sued on is defended on the grounds, first, that the testimony supports that finding, and, second, that the testimony offered in the company’s behalf tended to contradict and vary this writing, and was therefore inadmissible.
"We do not concur in either view, and' we discuss these propositions in reverse order.
It is the contention of the company that the writings set out were intended to cover bonds to be issued and redeemed in payment of outstanding estimates and the estimates for January and February, the estimates for those months not to exceed $7,500 for either month, regardless of the amount of work done by the company during those months, and that an additional parol contract was made to cover other estimates.
We recognize, of course,' the legal propositions pressed by appellee, that a contemporaneous or antecedent verbal agreement is not admissible to contradict a written contract, and that prior negotiations are merged when the parties set down the terms upon which they finally agree in writing. But those rules of evidence are not infringed here if the company’s version of what happened -on December 13 is accepted', that is, that the writings covered the payment of the outstanding estimates and those for January and February, not exceeding $7,500, and the parol agreement-related to subsequent estimates.
Appellee was entitled to have judgment rendered in his favor for the price stipulated for the bonds in the writing, which is $6,800; but it does not follow that the company cannot prove there was another agreement. In other words, parties may malee more than one contract, and we have concluded, from a consideration of all the testimony, that the writing was not intended to evidence the only contract.made. It is true that appellee’s testimony is to the effect that on December 13 he made no contract except that set out in the writings executed on that date; but there was much other testimony in the case, and we give a summary of it.
Appellee proved the execution and the delivery of the writing sued on, a fact admitted by the pleadings, and he testified, in effect, that no other contract was made on December 13, and that the company agreed to accept from the district the bonds of the district at the price at which he agreed to purchase them (87.75c on the dollar), and that he made no agreement to redeem the bonds so delivered to the company by the district, and that he only agreed to sell the bonds for the district as fast as,he could, and to account at once for the proceeds of such bonds as he was able to sell.
On behalf of the company the testimony was to the effect that appellee was at all times in default in his contract to take up the bonds of the Cross County Improvement District, and, as a result of this default, the district was unable to pay the engineer’s estimates to the company, less the retained percentage, pursuant to the construction contract, and suit against'-the district was threatened by the company. The district recognized its contractual obligations to the company, and constantly urged appellee to take up bonds in sufficient amounts to meet the engineer’s estimates. Estimates amounting to something less than $36,000 were outstanding and unpaid on December 13, when the meeting was held. This meeting was called by appellee, and was held for his benefit. As appellee was then unable to buy enough bonds to pay the past due estimates, the company agreed to accept bonds for that amount, and the writings bearing that date, which are set out above, were then executed. Pursuant to this agreement, the trustee was directed, with the consent of the commissioners of the district, to release to the company bonds amounting to $36,000. This the trustee did, and bonds for that amount were delivered to the company, and appellee redeemed these bonds on March 8, 1921.
The company commenced the construction of the Cross County improvement in September, 1920, and thereafter was receiving gravel and structural material, but had no funds with which to pay the freight, and the company had on the job an expensive outfit, and appellee was unable to pay for bonds fast enough to take care of the engineer’s estimates to the company. It was appellee who was in default, and it was against him that suit was threatened by the district. He had not been employed as a mere broker to sell the bonds for the district, but he had purchased the bonds, and his contract of purchase required him to take up the bonds in sufficient amounts to meet the engineer’s estimates, and this he had not been doing. There was no reason why appellee should have been released from his contract of purchase, and the preponderance of the testimony is that he did not ask to be released, but only asked indulgence in the way of an extension of time to dispose of the bonds which he had previously obligated himself to take, and testimony on the nart of the comnany is to the effect that, in consideration of this forbearance, appellee agreed, after March 1, to turn the district and the company loose and to allow the work to progress as rapidly as possible, and to take up the bonds, which were to be released to the company by the trustee, at the contract price of sale of those bonds.
It appears, from the writing signed by appellee on December 13, that he agreed to take up the $36,000 of bonds on March 1, and further to take up, on April 4, the estimate due January 4, not to exceed $7,500, and to take up, on May 4, the estimate due February 4, not to exceed $7,500. As has been said, appellee took up the $36,000 in bonds, but failed to take up the estimate for January and February. Thus the matter stood when the writing sued on was executed.
Acting with appellee in the matter was Mr. Duhme, of the firm of Friedman, D’Oenche & Duhme, bond dealers, with their place of business in St. Louis. Mr. Duhme attended the meeting of December 13, but his deposition was not taken, and there is no corroboration of appellee’s version of the transaction. Appellee’s testimony is that he made no agreement to take up the bonds after March 1, and that he agreed only to allow the company to use the eight bonds delivered it, and which were to be returned or paid for within sixty days.
Opposed to the testimony of appellee is the testimony of the president of the company, the secretary of the Cross County district, the president of the district, another commissioner of the district, and the engineer of the district. These five witnesses were all present at the meeting on December 13, and their testimony is substantially the same. In addition to the facts recited above, they testified that -appellee admitted his default in taking up the bonds, but sought to excuse it on the ground that he was unable to make satisfactory sale of the bonds which he had contracted to buy; that he represented the market would improve after March 1, after which time he would ask no further indulgence, and that the commissioners agreed that the trustee might release to the company the $36,000 in bonds covered by the writing then executed, in consideration of appellee’s agree ment to redeem them on March 1, and that it was also agreed that, after March 1, the trustee should release bonds to the company in amounts equivalent to the engineer’s estimates, and that appellee would redeem all the bonds so delivered by.the trustee after March 1.
We conclude the testimony showing there was an independent parol contract is admissible, and that the preponderance of the testimony sustains the company’s contention. This being true, appellee should have judgment for the $6,800 sued for; and the company should have credit for the loss which it sustained on the bonds which appellee failed to redeem.
It appears there were $100,000 of these bond's, and that the best price obtainable, and the one which the company obtained, was eighty cents on the dollar, with accrued interest amounting to $850; so that the company received for these bonds $80,850. Appellee should have redeemed these bonds at $87,750, and', as the company received only $80,850 for them, appellee must sustain this loss of $6,900. The difference in the respective liabilities is $100, and, as the difference is in favor of the company, the judgment will be in its favor for that amount. | [
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Humphreys, J.
Appellees brought suit against appellant in the circuit court of Baxter County to recover a commission of $300 alleged to have been earned under a written contract for the sale of 160 acres of land in said county, owned by appellant. The contract was made an exhibit to the complaint, and in part is as follows:
“I employ you to sell the same for $2,500, and authorize you (or your agents) to make, in my name, a binding contract for the sale of same, in accordance with the terms as herein stated, and to accept and give a receipt for any money received in connection with said contract of sale.
“If a customer is produced through you or your ag’ents, on terms as herein stated, or at a price and upon terms acceptable to me, I will pay you forthwith a commission of $300 of the selling price.
“I reserve the right to sell said property by my own efforts, or through agencies other than yours, and, if sold, no commission or other charge will he due to you, but if sold to a customer produced through or by your agents, at a price and on terms acceptable to me, I will pay you your commission as provided -for above.”
Appellant filed an answer denying that appellees had earned any commission under the contract.
The cause was submitted upon the pleadings, evidence, and instructions of the court, which resulted in a verdict and consequent judgment for the sum claimed, from which is this appeal.
The record reflects the following undisputed facts: The contract listing the land for sale, and which contained the provision set out above, was entered into by appellant and appellees on the first day of December, 1920. Appellees placed an advertisement of. farms for sale in the Baxter County Bulletin, which was read by P. A. Boone of ICirksville, Missouri. As a result, on October 2,1921, Boone wrote appellees as follows:
“I see your ad in the Baxter Bulletin of farms for sale. Please send me your list of farms for sale, also prices of same, as I want to come down in that part of the country and get me a lióme. I want about 80 acres, mostly bottom land, with some timber. I would rather have land that doesn’t overflow. I may not get down till November, but I am coming, so please send me your list, and oblige.”
On October 6, 1921, appellees answered the above letter as follows: £<I am in receipt of your letter, and note that you are interested in Baxter County, and that you want list of farms on my list. I have some excellent bargains, and am sending you my folder with printed description of a number of farms on my list. Bead the folder carefully and you will get a fair idea of Baxter County and what is doing here. By reading the printed description you should find something that will appeal to you. I shall await your early reply with interest, and, when you are .ready to visit Cotter, be sure and let me know what day you will be here, so that I can meet you at the station and care for you.”
In January, 1922, Boone came to Cotter, went to the office of appellees, called attention to the correspondence, and requested them to show him some of the lands they had for sale in Baxter County. After viewing several farms, Boone informed them that he wanted to trade his Montana lands for Baxter County lands. Abner Deatherage, one of the appellees, showed Mm a description of the 160-acre farm which appellant had listed with them for sale. They drove out to the farm, and were shown over it by appellant. A written executory contract for an exchange of the farm for Montana lands was agreed upon between appellant and Boone, the same being reduced to writing and witnessed by Jack Ilornbuckle, who was present at the time. On February 10, 1922, the appellees wrote appellant inclosing a deed to the farm for appellant and his wife to execute. It was stated in the letter that Boone’s deed for the Montana lands would be ready by the time,the inclosed deed was executed and returned. On February 28 following they again wrote- appellant, stating that Boone’s papers were ready, and asked him to execute and mail them the deed for his farm so that the transaction might be closed. It does not appear that appellant ever answered this letter.
In addition to the undisputed evidence disclosed by the record, Abner Deatkerage testified that Boone sent appellees the deed and abstract for the Montana lands, and afterwards, at the request of Boone, the deed and abstract were returned to him. Appellant testified that, a few days prior to the date on which he and Boone entered into the contract for the exchange of lands, he met him on a passenger train in Missouri, at which time they got on a trade of their farms; that Boone promised to come to his place on the 28th of January, 1922, for the purpose of -continuing negotiations, but, instead, he came on the 27th day of said month, in company with Deatherage; that in a short time they entered into a written contract for the exchange of their lands; that Boone asked him if he wanted to go ahead and close the deal which had been proposed when they met on tie train in Missouri; that he signified a willingness to do so, and the written contract for the exchange of the lands was entered into in continuation of the'negotiations begun in Missouri; that the -contract of exchange was not made with Boone as a -customer produced by appellees under the commission contract of date December 1, 1920.
Appellant contends for a reversal of the judgment upon the ground that, under the law and according to the undisputed evidence, appellees were not entitled to a verdict.
His first insistence is that the commission contract contemplated a sale, and not an exchange of the land owned, and listed by him with appellees. It is true that the contract provided for a money consideration of $2,500 for the land, which appellant might have exacted before appellees could have earned the commission, but it also contained a provision broad enough to embrace the exchange of the land, if acceptable to appellant. The provision referred to is as follows:
“If the customer is produced through you or your ag’ent, on terms herein stated, or at a price and upon terms acceptable to me, I will pay you forthwith a commission of $300 of the selling price.”
His next insistence is that, even if responsible for a commission in the event of a sale or exchange of the lands acceptable to him, appellees were not entitled to a recovery because a completed sale or exchange was not effected. The import of the contract was to the effect that there should be a completed sale or exchange of the lands in order for appellees to earn their commission, but, even so, under the law it was only necessary for the agent to produce a purchaser ready, able, and willing to comply with the contract of sale and purchase. After the production of such a purchaser by the broker, the owner could not refuse to sell and thereby escape the payment of the commission. The testimony in the instant case showed that appellant failed to execute a deed for his land to Boone after Boone’s papers were all ready to complete the exchange. The exchange was defeated through appellant’s own fault.
Appellant’s next and last insistence is that the purchaser or exchanger, Boone, was not produced by appellees, but, on the contrary, was secured through his own effort. The testimony was in conflict upon this issue. The disputed question of fact was submitted to the jury under correct declarations of law. The verdict is supported by substantial evidence of a legal nature, and is conclusive upon appellant.
No error appearing, the judgment is affirmed. | [
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Wood, J.
The appellant was convicted on an indictment which charged him, in the first count, with the crime of forging ‘ ‘ a certain writing on a paper purporting to be a check drawn on the People’s Bank of Magnolia, a corporation, which said writing on paper is in words and figures as follows, to-wits ‘Magnolia, Arkansas, 11/22/1922. No.............. The People’s Bank of Mag- . nolia: Pay to Tom Williams or bearer $42.75, fo(u)rtytwo 75/100 dollars. (Signed) Roy Nipper.’ ” It was charged that he forged Roy Nipper’s name with the felonious intent of defrauding him and depriving him of his property. In the second count he was charged with the crime of uttering such instrument. He was convicted on the first count, and acquitted on the second.
Nipper testified that he did business with the People’s Bank of Magnolia, and did not make the check for $42.75 in favor of Tom Williams, which was introduced in evidence. He examined the alleged forged check and read the same as follows:
“Magnolia, Arkansas, 11-22-1922. No................
“The People’s Bank oe Magnolia 81-162
“Pay to Tom Williams or bearer $42.75
Fourty-two 75/100 Dollars.
“Rov Nipper.”
Lyle testified that he was cashier of the People’s Bank of Magnolia; that the alleged forged check was cashed at that bank. He did not see Nipper sign> the check. The first check, or the Roy Nipper check, was presented in November, and the Saunders check was presented by McCoy in December. Witness saw the Saunders check presented, and saw that it was not his signature, and the negro, McCoy, said he was buying something for Mr. Saunders. Witness went back to see if Saunders had enough to pay the $85.75. The party pre senting the check came hack to .where witness was, and witness told him that Saunders did not sign the check, and! the defendant, McCoy, said that he did. Witness refused to pay the check. McCoy said that he was going to the oil-mili and buy something, and that he was driving Saunders’ mules; that Mr. Saunders had sent him there. The negro went out, and, after examining the check very closely, witness concluded that the negro was not coming back, and witness went out to find him, but could not. Witness never saw McCoy again until after he was arrested, and witness then identified him. The negro that presented the Saunders check is the defendant, McCoy.
Miss Julia Stevens testified that she was bookkeeper at the People’s Bank, and her testimony substantially corroborated that of Lyle. She identified the defendant as being the negro who presented the Saunders check, which the bank refused to pay. She didn’t know anything about who presented the Nipper check.
Saunders testified that he didn’t sign the check to Williams or McCoy; that the check presented by McCoy, signed with his name, was a forgery. He never authorized any one to sign it.
John B. Lee testified substantially as follows: He was connected with the Farmers’ Bank & Trust Company, and had seen the defendant before. He identified a letter and contract, and testified that these documents were written by the defendant. Witness had been working in a bank since 1915, and had to examine signatures, and would have a better idea of signatures than the average man, but he had not become an expert. He had been working in the bank at Emerson as cashier. He examined • the alleged forged check and the Saunders check, and compared them with the documents which he testified were signed by McCoy, and stated that he considered that there was a similarity. The body of the checks was not written by the same party who signed the signatures. Witness was asked if he considered the signatures to the checks similar to McCoy’s handwriting and answered, over the objection of appellant, “Yes sir; it is identical.”
The defendant, McCoy, testified that he had nothing to do with forging the check signed by Roy Nipper, and did not present the check for payment. He did not forge the Saunders-check, nor present that for payment. His testimony and the testimony of witnesses in his behalf tended to show that, at the time the alleged forged check was cashed on the 22d of November, he was working on a house five, and a half miles from town. . McCoy testified that he had nothing whatever to do with either of the forged checks; had never forged a check in his life.
1. On this appeal appellant contends, first, that the court erred in permitting the State to introduce in evidence the alleged forged check, which was precisely the same as that described in the first count of the indictment, except that the check introduced contained the following notation: “Indorsement as follows: People’s Bank, Magnolia, Ark., Tom "Williams. ’ ’ The appellant contends that, inasmuch as these words are not contained in the copy of the check set forth in words and figures in the indictment, there was a fatal variance between the indictment and the proof. This was an indictment for forging a check. Our statute makes it a felony to forge any check or draft upon a bank, or any indorsement thereon. Section 2463, C. & M. Digest. But the indictment in this case was for forgery of the check. It is not a charge for forging an indorsement on the check. “An indorsement on a check is no cart of the check itself, and need not be set up in an indictment alleging forgery of the check.” U. S. v. Peacock, 1 Cranch 215; Commonwealth v. Ward, 2 Mass. 397; State v. Carrigan, 210 Mo. 351, 16 L. R. A. (N. S.), 561, 109 S. W. 553 and other cases cited in case-note to People v. Tilden, 31 L. R. A. (N. S.), 217, “Indorsements.” See also Beer v. State, 42 Tex. Crim. 505, 60 S. W. 962, 96 A. S. R. 810; State v. Tutt 2 Bailey Law (S C.), 44, 21 Am. Decisions, 508; 12 R. C. L. 158, § 21; Hess v. State, 5 Ohio 5, 22 Am. Decisions, 766. The cases of McDonnell v. State, 58 Ark. 242; Bennett v. State, 62 Ark. 516; Zachary v. State, 97 Ark. 176, are all oases where the crime charged was the forgery, or the forged alteration, of the instrument itself, and in those cases there was material variance between the instrument alleged to be forged and the instrument offered as proof of such forgery. Such is not the case here. The cheek alleged to be forged and the check adduced in evidence to sustain the charge were, in the body, precisely the same.
2. The appellant next contends that the court erred in permitting the witness, Lee, to testify that he had examined a letter and contract which bore the. genuine signature of the appellant, and also had examined the check purporting to have been signed by Roy Nipper, and also the check adduced in evidence, over the objection of appellant, purporting to have been signed by Saunders, and that, from such comparison, the check alleged to have, been forged in this case and signed by Nipper, as well as the check alleged to have been signed by Saunders, were, in the opinion of the witness, both forged by appellant. This testimony was competent as a circumstance to go to the jury to prove guilty intent on the part of the appellant. Lee stated facts which warranted the court in permitting his testimony to be considered by the jury as an expert. It was proved that the Saunders check was forged and that the appellant had such check in his possession, and attempted to utter the same, about a month after the Nipper check had been presented and cashed. It was proved that the Nipper check was .also forged, and the proof tended to show that it was written by the same man who wrote the Saunders check.
This testimony of Lee was not collateral, but was a circumstance to prove that the appellant was forging and attemnting to utter forged instruments. It is generally held that “proof of similar acts of forgery or of uttering is admissible as bearing on the question of the intent with which the forgery or uttering of forged paper for which the defendant has been informed against was forged or uttered. And the fact that the defendant was under indictment for the forgery of some of the instruments so admitted in evidence does not affect their admissibility in evidence. Such evidence is never admitted, however, as proof of the commission of the criminal act for which the defendant is on trial.” 12 E. C. L., p. 167, § 30. See cases. It is competent only when the alleged forged papers are shown to have been forged or uttered under similar circumstances as tending to show system and intent. Moreover, the court, in this particular case, allowed the testimony to be introduced only for the purpose of identification.
3. The appellant next contends that the State failed to prove venue. Proof of venue is sufficiently established to entitle the State to go to the jury if nothing further appears than that the person charged with the offense is shown to have uttered the forged instrument in the county where the indictment is found. 12 E. C. L. 153,§ 17.
There is no reversible error, and the judgment is therefore affirmed. | [
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McCulloch, C. J.
This appeal involves the construction and effect of an amendment to the severance * tax statute enacted by the General Assembly of 1923, approved February 14, 1923, imposing a tax ou the business of severing certain products from the soil for commercial purposes. Acts 1923, General Statutes, p. 67. The statute is designated, and will be hereinafter referred to, as act No. 118. The amendatory statute was approved March 26, 1923 (Acts 1923, General Statutes, p. 578), and designated as act No. 681. Both of these statutes were enacted at the same session The bill for act No. 681 was introduced in the Senate on March 5, 1923, and passed the House of Representatives on March 7, but was not presented to the Governor for approval until after adjournment.
Section 4 of act No. 118 provides for the imposition of “a privilege tax amounting to two and one-half per cent, of the gross cash market value of the total production of such natural resources” other than -“the production of 'certain natural resources, the privilege tax upon which is hereinafter specially provided for.”
Section 5 of act No. 118 reads as follows:
“Section 5. Special rates.
“ (a) On bauxite. Every producer of bauxite shall be subject to all of the provisions of this act, except, instead, of a tax of two and one-half (2y2) per cent, of the gross market value of said product, the producer of bauxite shall pay a privilege tax equivalent to twenty-five cents (25c) per ton on the total production of bauxite during the preceding quarterly period, irrespective of the market value thereof.
“(b) On coal. Every producer of coal shall be subject to all of the provisions of this act, except that, instead of a tax of two and one-half (2%) per cent, on the gross market value of said products, the producer of coal shall pay a privilege tax equivalent to one cent (lc) per ton on the total production of coal during the preceding quarterly period, irrespective of the market value thereof.
“(c) On timber. Every producer of timber shall be .subject to all the provisions of this act, except that, instead of a tax of two and one-half (2%) per cent, of the gross market value of said products, the producer of timber shall pay a privilege tax equivalent to seven cents (7c) per thousand feet, board measure, on the total stumpage covered or cut during the preceding quarterly period, irrespective of the market value thereof.”
Act No. 681 (omitting § 2, which is the concluding section declaring an emergency and putting the statute into immediate effect) reads as follows:
“Sec. 1. That § 5 of act No. 118 of the Acts of the Legislature of the State of Arkansas, approved February 14, 1923, be amended to read as follows:
“ ‘Special rates’ (d). On manganese ore. The provisions of this act shall not apply to the producer of manganese ore, but every shipper of manganese ore shall pay a privilege tax of ten cents per ton, based on the weight at the point of shipment, irrespective of the market value of the said ore. Said tax to be paid as provided in said act. ”
The Arkansas Railroad Commission, which is clothed with authority to collect the tax, sought to collect from those producing commodities mentioned in § 5 a tax of two and one-half per cent, on value as prescribed in § 4, claiming authority to do so on the theory that the original § 5 had been repealed by act No. 681.
The appellees, each a corporation engaged in the business, respectively, of severing timber and coal from the soil for commercial purposes, disputed this assertion, and claimed the right to pay under § 5 of the original statute as the limit of its taxation. Appellees instituted this' suit in the chancery court of Pulaski County to restrain the Commission from attempting to impose the tax of two and one-half per cent, on valuation of the product. The chancery court granted the relief prayed for by appellees, and the Commission has appealed.
The question presented is whether act No. 681 operates as a repeal of the whole of original § 5 by substitution, or whether it merely amends the statute by adding another subdivision to § 5 relating to the tax on production of manganese. The State contends that the later statute operates as a repeal of § 5 by substitution; and the contention of appellees is that it operates merely as an amendment to the original section by adding another subdivision.
The rule of interpretation has been firmly established by many decisions of this court, as well as by decisions of other courts of last resort, that the use of the formula, “amended so as to read as follows,” in an amendatory statute, means that the new statute is substituted for and repeals the old statute, or that part of it which is thus referred to. The authorities on this subject are reviewed in the case of State ex rel. v. Trulock, 109 Ark. 556. We decided, however, in that case that the rule was not an inflexible -one, and was not applicable where there were other. controlling and unmistakable indicia found in the statute of a contrary intention on the part of the lawmakers. In the opinion in that case it was said: “But that rule of interpretation is not an absolute or an inflexible one, and is not always arbitrarily applied. It must be considered with other rules equally well settled, and must yield place to others which may, under the language of a statute, be more appropriately and accurately employed. The cardinal rule of interpretation is the ascertainment of the meaning of the lawmakers as expressed in the language which they have used. Not what the lawmakers themselves meant, but what the .language they used means; And all rules of interpretation must yield to this as the paramount one.” Again, it was said in the same opinion: “The words, ‘be amended to read as follows,’ constituted a mere formula, in which there is no magic, except that it ordinarily carries the meaning, when not otherwise limited, that the amendatory statute excludes all omitted provisions of the former law.” The conclusion reached in that case was that, notwithstanding the use of this formula in -the new statute, it did not exclude by repeal the omitted provisions in the former law.
In the very recent case of Wallace v. McCartney, 159 Ark. 617, the same question arose in the interpretation of a similar amendatory statute, and we announced the same rule as in the Trulock case, holding that the amendatory statute was not a substitution, but an addition or supplement, to the original statute. In the case just referred to we said that “it is obvious, from a consideration of the whole of the amendatory statute, that the Legislature did not intend to amend the whole of the section named, but had left unimpaired that part of it which covered a subject not treated in the new statute.”
In the Trulock case we followed the decision of the New York Court of Appeals in the case of Bank of the Metropolis v. Faber, 150 N. Y. 200, and quoted from it the following:
“The effect upon a prior statute of a subsequent amendment, '‘so as to read as follows,’ is not to be determined in all cases by any fixed and absolute rule, but frequently becomes á question of legislative intent to be determined from the nature and language of the amendment, from other acts passed at or about the same time, and from all the circumstances of the case. The duty of the courts is to give effect to the legislative intent rather than the literal terms of the act.” There are other decisions of the same court which might have been referred to, where language was used which has much force in the interpretation of the statute now before us. In the case of Smith v. The People, 47 N. Y. 330, where the court had under consideration a similar question, it was said:
“A clause in a statute purporting to repeal other statutes is subject to the same rules of interpretation as other enactments, and the intent must prevail oyer literal interpretation. One part of an act of the Legislature may be referred to in aid of the interpretation of other parts of the same act. So in cases of doubt or uncertainty, ants in pari materia, passed before or after, and whether repealed or unrepealed, may be referred to in order to discern the intent of the Legislature in the use of particular terms; and within the same rule, and the reason of it, contemporaneous legislation, although not precisely in pari materia, may be referred to for. the same purpose. Statutes in pari materia relate to the same subject, the same person or thing, or the same class of persons or things, and are to be read together, for the reason that it is to be implied that a code of statutes relating to one subject is governed by the same spirit, and are intended to be harmonious and consistent. * * * Statutes enacted at the same session of the Legislature should receive a construction, if possible, which will give effect to each. They are within the reason of the rule governing the construction of statutes in pari materia. Each is supposed to speak the mind of the same Legislature, and the words used in each should be qualified and restricted, if necessary, in their construction and effect, so as to give validity and effect to every other act passed at the same session.”
In the case of In re Rochester Water Commission, 66 N. Y. 413, where there was involved the effect of a supplemental statute using the formula, “amended so as to read as follows,” the court said:
“Ordinarily, and in the absence of any evidence of a legislative intent to the contrary, a substitution of one section for another by an amendment in the form in which this amendment was accomplished would work a repeal of the original section from the time of the amendment, and as affecting all eases thereafter arising. But when, from the language of the statute and of the amendment, a different intent is apparent, such effect will not be given to it; and where other acts of the Legislature, passed at or about the same time, corroborate the evidence of intent, as gathered from the statutes under review, the duty of the courts is to give effect to the intent rather than to the literal terms of the act. The intent must not be conjectured, but must be apparent from all the statutes taken together, and consistent with the whole purpose and object as well of the original statute as of the amendment. This rule of interpretation is of frequent application, and is one of the most important and familiar canons of construction.”
It is earnestly contended by learned counsel for the State that the use of the letter “d” in the amendatory statute affords the only evidence of the intention of the framers of the statute to supplement, rather than to repeal by substitution, the original statute, and that this evidence is too slight and uncertain to contravene or overturn the settled interpretation of the formula employed. The use of the letter in the same way that the preceding letters of the alphabet were used in the original statute in designating the different rates of taxation on the several ■ products is undoubtedly of emphatic significance in determining what the real intention of the lawmakers was, but we cannot agree with counsel that this is the only evidence of a contrary intention afforded by the statute itself and the original statute, which had been enacted only a short time before, at the same session of the Legislature. The whole structure and form of the amendatory statute is so identical with the different subdivisions of the original § 5 as to give compelling force to the idea that the addition of another subdivision was intended rather than a substitution for the whole of the original section. The natural and ordinary effect upon the mind ill comparing the new statute with the original section is that an addition to the section was intended, rather than a substitute. It deals solely with taxation of the production of a com modity, manganese, which is of little consequence in this State, compared with the production of the great commodities coal, lumber, and bauxite, mentioned in the original section, and it is scarcely conceivable that the lawmakers intended, in dealing with this commodity, to overturn the carefully laid taxation -scheme prescribed in the recently enacted and yet untried general statute on this subject.
The rule announced by the New York court in the cases cited supra is especially applicable in the present controversy, for the two statutes were passed at the same session and closely together in point of time. The statute was a new one, and when the amendatory statute was passed the former one had not gone into effect, and was wholly untried. There had been no experience in the enforcement of the original statute so as to give rise to the belief that material changes had taken place in the legislative mind. It is true that the repeal of the whole of original § 5 would have left a complete scheme for the uniform taxation of the privilege of production of all commodities mentioned at .the rate of two and one half per cent, on valuation, but this is of little force in inducing the conclusion that the lawmakers had undergone a complete change of mind in the scheme of imposing a specific amount upon most of the great commodities to be produced.
Again, it is insisted by counsel for appellant that if the later statute be construed to be an addition, and not. a substitution for, original § 5, it is brought in conflict with § 23, art. 5, of the Constitution, which provides that a law shall not be “revived, amended or the provisions thereof extended or conferred by reference to title only,” and that we should give such interpretation to this statute as will make it valid rather than to make it invalid. We are unable to agree with counsel in the argument that, if the later statute be interpreted to mean an addition to § 5, it offends against the provisions of the Constitution above referred to. It will be observed that § 1 of tbe amendatory statute, when read and considered separately and apart from the original statute sought to be amended, distinctly and unequivocally imposes a privilege tax of ten cents per ton on the production of manganese ore. This presents the case of a statute which is “original in form” and which “creates some burden or obligation,” and which merely refers to “some other existing statute for the purpose of pointing out the procedure -in executing the power, enforcing- the right,.or discharging the burden.” See the recent case of Farris v. Wright, 158 Ark. 519, and the authorities there collated. The later statute is therefore not invalid as an attempt to amend or extend the law by reference only to the title.
The conclusion now reached is that the effect of the last statute is not to substitute its provisions for the original § 5 in act No. 118, but that it is to add thereto the subdivision set forth in the later statute.
The chancery court was correct in its decision, and the de-eree is affirmed.
Wood and Humphreys, JJ., dissenting. | [
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Wood, J.
The appellant was convicted of the crime of robbing Eli Hufstedler of certain moneys in June, 1922. The testimony of Hufstedler was to the effect that, in June, 1922, in Randolph County, Arkansas,- the appellant crawled up behind him and one McMullen, with his gun drawn, and commanded witness to put up his hands and give up his money. The testimony tended to prove that appellant obtained from the witness and his companion about $172. The witness testified that he had been in the habit of carrying money in a belt on his person. Appellant remarked to witness as follows: “You have more money on you. Where is that belt?” Appellant tore witness’ pants open to see if witness had the belt on. Witness was asked to state who knew that he carried money in Ms belt, and answered, “Clarence Estes knew I carried money in a belt.” The appellant objected to the answer to the question and to the refusal-of the court to withdraw same from the jury. Witness, over the objection of appellant, was permitted to state that Clarence Estes had known for six months that witness carried money in a belt, and that he had known it up to three weeks before the robbery. The witness said he saw Clarence Estes on the day of the robbery, just before and just after the robbery. Estes lived at Imboden, Randolph County, near Sloan’s, on Third Street. Appellant requested the court to exclude the above testimony, which the court refused to do, to which ruling the appellant excepted. Witness had seen appellant and Sam McCoy the Sunday before, but didn’t know appellant then. Witness described in detail the manner in which appellant attempted to disguise himself, his dress and certain marks, a scar on his cheek, and positively identified the appellant as the man who robbed witness of his money. Witness stated that he and other parties sometimes went to the place where the robbery occurred for the purpose of gambling. Witness stated that the robbery occurred between nine and eleven o’clock. The witness was asked, on cross-examination, if he had not stated before that it was twenty minutes to twelve o’clock, and answered, “No sir, I said I got home at twenty minutes to twelve.” Witness stated that he didn’t remember that he -stated before that the robber? took place twenty minutes before twelve o’clock. It happened before that time.
Witness McMullen testified that lie and. Hufstedler were robbed on the day alleged, about twelve o’clock. He could not say positively that appellant was the man, but lie looked like the man who robbed them. Another witness stated that he saw the appellant, on the day of the alleg’ed robbery, coming from Cedar Brake, about half bent over, with a blue handkerchief over his face; that he spoke to appellant, and asked him what he wanted. Appellant replied that it was none of his business. Witness followed appellant, and he got faster as witness approached him. Witness positively identified appellant as being the man that he saw. It was some time between eight and nine o’clock in the morning.
Witness Andy Holcroft said that, on the day of the robbery, he saw appellant or a man that looked like him from his eyes up, at Cedar Brake, at Imboden. Witness had started to town, and heard Hufstedler hollering, and ran up to see what was wrong, and there was a fellow standing behind Hufstedler with a gun on him,’ taking his money. Witness, after describing the appearance of the man he saw, stated that he could not identify the appellant as the man, except his eyes looked natural. Witness stated that the robbery occurred between ten and twelve o’clock. His best judgment was about eleven-thirty. Witness was asked the following question: “If he had not heard Eli Hufstedler say, in private conversation with witness, after the case had been disposed of in the examining court, that the robbery took place within twenty minutes of twelve o’clock?” The State objected to the Question, and the court sustained the objection, to which the appellant excepted.
Witness J. A. Baker testified that he saw the appellant two weeks before, near the scene of the robbery, through the cedars, and that when witness and others got up and left he followed them up the creek. Appellant objected to the above testimony of the witness Baker. The court overruled the objection, to which rulipg the appellant duly excepted.
Witness Crabtree testified that he was at the examining trial of the appellant and Clarence Estes for the robbery. The trial was had just across the river from Imboden. ITe saw the appellant that day, and also Clarence Estes. Witness was permitted to testify, over the objection’ of appellant, that he heard a conversation between Clarence Estes and appellant, on the day of the examining trial, as follows: Appellant said, ‘‘Clarence, it is not fair for me to go down there by myself and you get out of this; you ought to go with me. ’ ’ The examining court had just bound appellant over to await 'the action of the grand jury and had turned Clarence Estes loose. The appellant made the remark in a jocular way. Witness didn’t know why he said it. He spoke so every one around could hear him. The appellant duly excepted to the ruling of the court in admitting the above testimony.
J. IT. Turner was a witness for the appellant. He testified that he saw the appellant on the streets on the day of the alleged robbery, at Hoxie, between nine and ten o’clock, and saw him again on the streets at Hoxie about 11:40 o’clock. Witness testified that he didn’t know how far it was from Hoxie to Imboden. He had gone over the route a .number of times. He had driven it in two hours. He didn’t know where the cedar brake was — thé alleged place of the robbery. Witness, at the time of the alleged robbery, was marshal of the town of Hoxie. Witness was asked the following question: “Basing your answer upon your experience as an officer, and knowing the country as you do, and basing your answer upon your knowledge of the distance- from Imboden to Hoxie, and basing your answer upon your knowledge as to the time it would necessarily require to travel over the usual route of travel, .by the method of travel known at the time of the alleged commission.of this offense, could this defendant have been in the town of Imboden, or at a point from a quarter to a-half mile north of Imboden, in that cedar brake, and committed the crime charged against him in this indictment, and been .in Hoxie, at the time you saw him there that day?” The court refused to permit the witness to answer the question, to which ruling the appellant duly excepted.
Several 'witnesses testified on behalf of the appellant, and their testimony tended to establish an alibi. The appellant was a witness in his own behalf, and, among other-things, he stated that he didn’t know anything about the robbery, and had never heard of it until he was arrested at Jonesboro, Arkansas.’ He testified as to his whereabouts on the day of the robbery and also where he stayed the night before. On cross-examination he was asked where he lived, and answered that he lived at Truman. He was asked how long he had been at Hoxie, and stated that he had been there for two or three years, off and on, a week or so at a time. Then he would go home to help his father with his crop.
Over the objection of appellant he was also asked the following question: “Q. You are a gambler — you gamble?” Witness answered, “I gamble some, but I am not a gambler. Q. You have been in jail? A. Yes sir, I have been in jail at Walnut Ridge and here.” Appellant, over his objection, was then asked, “Anywhere else?” and answered, “Yes sir; at Harrisburg.” On redirect examination appellant testified as follows: “Q. The time you were in jail here was when you were charged for this offense? A. Yes sir. Q. And also when you were in jail in Walnut Ridge?” and -answered, “Yes sir.” Appellant was then asked this question: “What were you in jail for at Harrisburg?” and answered, “I was charged with robbery'.” He was-asked, “Were you acquitted on that charge?” and answered, “Yes sir.”
The jury returned a verdict of guilty. The court overruled appellant’s motion for a new trial, and entered a judgment sentencing him to the State Penitentiary for a period of three years, from which is this appeal.
The first assignment of error is that the court erred in permitting the prosecuting witness to state that Clarence Estes knew that he had money, and that he carried money in a belt, and that he saw Clarence Estes on the morning of the day of the robbery — just before the robbery and just after — and that Estes lived at Imboden. The appellant also contends that the court erred in permitting the witness Crabtree to testify that, after the examining trial' of appellant and Estes, he heard appelant say to Estes, in effect, that it was not fair for appellant to be committed to jail and for Estes to get out; that Estes ought to go too.
There was testimony in the record to the effect that appellant and Estes were on trial before the committing magistrate for this alleged robbery and that the above remarks of the appellant were concerning the result of that trial, the appellant haying been bound over to await the action of the grand jury and Estes having been discharged. This testimony was in the nature of a confession by the appellant that Estes was with him in the charge of alleged robbery, and that, if it were fair to bind the appellant to await the action of the grand jury, Estes, under like circumstances, should also be bound. The testimony was competent as a circumstance tending to prove a conspiracy between appellant and Estes to commit the alleged robbery. The testimony was competent as a circumstance because it tended to prove that the appellant and Estes had knowledge of the fact that Hufstedler had money, which he carried on his person in a. belt. If we are correct in oiir conclusion that the effect of the above testimony tended to prove a conspiracy between appellant and Estes to rob Hufstedler, then it was clearly competent.
But, if we are mistaken, and if the testimony did not tend to prove a conspiracy between the appellant and Estes to rob Hufstedler, and if, as appellant contends, it only tended to prove that Estes, and not the appellant, had knowledge of the fact that Hufstedler carried money on his person in a belt, then the testimony could not possibly have been prejudicial to the appellant. Qn the contrary, it would rather tend to show that Estes, and not the appellant, was tlie one who had the guilty knowledge, and was most likely tire one who perpetrated the crime. Certainly there was no error prejudicial to the appellant in the admission of this testimony.
The court did not err in permitting the witness Baker to testify that he saw the appellant about two weeks before the date of the robbery, near the scene of the robbery, and that, when witness and others got up and left, he followed them up the creek. The testimony of this witness further disclosed that at Cedar Creek, the locus of the robbery, there was a thicket which was a resort or rendezvous, where the witness Baker and others went to play cards and shoot craps every Sunday. The testimony was competent. It tended to identify the appellant and to prove that he had, a very short time previous to the robbery, visited the scene thereof and obtained knowledge of the surroundings. The State had the right to prove that the appellant visited the scene of the robbery and obtained knowledge of the surroundings, and also the fact that parties were assembled there to gamble. This knowledge would better enable him to carry out his purpose, if such was his purpose, to commit the crime, which was soon thereafter committed and of which he was accused.
There was no error in refusing to permit-the witness Turner to answer the hypothetical question which appellant’s counsel propounded to him. This question assumed some facts to exist which there .was no testimony tending to establish, and the question was not responsive to any undisputed facts in evidence. Besides, the facts to which the witness had testified were not of a character to call for an opinion -on the part of the witness. It was not expert testimony, nor was it testimony in which it was proper to elicit the opinion of the witness. The witness stated the facts within his knowledge, and the conclusion to he drawn from these facts was for the jury. The question propounded to witness Andy Holcroft, to which appellant objected, was not proper. No proper foundation had been laid for such question. The court did not err in refusing to allow the question to be answered.
The court did not err in refusing to permit counsel for the State, on cross-examination, to ask the appellant if he were a gambler, and whether he had been in jail. The appellant, in answer to these questions, stated that he had gambled some, and that he had been in jail at Walnut Ridge, at Pocahontas, and at Harrisburg. The connection in which these questions were asked shows that the prosecuting attorney was attempting to prove the recent residence, occupation and history of the accused as affecting his credibility. To be sure, it would not be proper to ask an accused, who becomes a witness in his own behalf, whether he had recently been in jail on account of the crime for which he was then being tried, or for other crimes, merely for the purpose of showing that he had been previously accused of crime. Such questions, on cross-examination, would be like asking the accused if he had not been accused or indicted for crime. We have frequently held that it was not proper to ask a defendant, on cross-examination, whether he had been previously indicted for crime. Bates v. State, 60 Ark. 450; Hunt v. State, 114 Ark. 239; Johnson v. State, ante, p. 111; Youngblood v. State, ante, p. 144. An indictment is a mere accusation, and, of itself, does not carry any implication or warrant any inference either of guilt or of immoral or bad character. Likewise, the mere fact that a defendant had recently been in jail would not of itself justify the inference that the accused was a man of bad morals, or guilty of any crime that would affect his credibility as a witness. But where such questions are asked, not for the purpose of showing merely that the witness has been accused or indicted for a crime, or incarcerated merely upon a charge of criminal conduct, but for the purpose of showing that the witness’ habits are vicious, his character immoral, his occupation disgraceful or disreputable, his associations and surroundings with criminal classes, and that the imprisonment might have been the result of, or as punishment for, a felony of which the accused had been convicted, such questions may be asked, for they tend to impair the credibility of the witness.
As is said by Judge Hemingway, speaking for the court, in the well-considered case of Hollingsworth v. State, 53 Ark. 387: “It is always competent to interrogate a witness, on cross-examination, touching his present or recent residence, occupation and associations; and if, in answer to such questions, the witness discloses that he has no residence or lawful occupation, but drifts about in idleness from place to place, associating with the low and vicious, these circumstances are proper for the jury to consider in determining his credibility.” And again, quoting from the case of Real v. People, 42 N. Y. 270: “A witness, upon cross-examination, may be asked whether he had been in jail, the penitentiary or State prison, or'any other place that would tend to impair his credibility, and how much of his life he has passed in such places. ’ ’
In this case it is manifest, from the connection in which the questions were propounded, that the State was endeavoring to ascertain what was the present, the recent, and past history and antecedents of the accused, his occupation and associations, as ¡affecting his credibility. If counsel for the appellant conceived that the questions were propounded merely for the purpose of showing that the appellant had been accused of crime, he should have asked the court specifically to rule that such questions were not proper for that purpose. As these questions were asked just following the previous questions as to appellant’s residence, and whether or not appellant gambled, and after his affirmative answer that he did gamble, it occurs to us that a general objection was not sufficient to warrant the court in excluding the questions. They come well within the rule that such questions are proper for the purpose above stated, as announced in Hollingsworth v. State, supra. See also Clayton v. State, and cases there cited.
We find no prejudicial error in any of the rulings of the court, and the judgment is therefore affirmed | [
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Eskridge, J.,
delivered the opinion of the Court. — ‘This is an action of trespass on the case brought by Peter Holliday against Ambrose PI. Sevier, in the Clark circuit court, and comes to this court by writ of error. The declaration contains three counts, the first two for negligence in the defendant as an attorney in failing to collect and account for a note placed in his hands for collection by the plaintiff, and a third in trover, for converting the note so placed in his hands. There was a judgment in favor of the plaintiff for one hundred and sixty-four dollars and four cents, to reverse which the defendant has brought this writ of error.
Several grounds are relied on in argument for reversing the judgment of the circuit court, only two of which will be noticed.
First, it is contended that the action was improperly brought in the name of Peter Holliday, instead of in the name of William English. There was a receipt given in evidence in the court below, signed by A. H. Sevier to Peter Holliday, in the following language:'—
“ Received of Peter Holliday, one note of $133, against Joshua J. Plenness, drawn in favor of William English, this 14th November, 1825. A. H. Sevier.”
The circuit court decided that the receipt was evidence conducing to prove a privily of contract between Sevier and Holliday, and admitted the receipt in evidence, to which opinion there was a bill of exceptions filed.
The general doctrine that the action must be brought in the name of the person in whom the legal title resides cannot be controverted. 1 Chitty, 3; 1 Saund. 153 n. 1; 8 Term Rep. 332. I cannot perceive how the receipt given by Sevier to Holliday for a note payable to English, can operate as a recognition of title to the note in Holliday. There is nothing in the record of the court below going to show that Holliday had any interest in the note whatever, nor can I perceive how it tends to establish a privity of contract between Sevier and Holliday. The possession of the note by the latter might have established a privity of contract between himself as bearer, and Henness, the maker, but that question it is not necessary to decide. Holliday must be considered as the naked bailee of the note, or as the agent of English, and in either character he cannot recover on the receipt. If Holliday was a naked bailee, and voluntarily parted with the possession of the note to Sevier, he thereby ceased to have any control of it, and divested himself of all right to bring an action. Whilst holding the note as bailee, Holliday had a good title to it against all the world, except English, the rightful owner; but having voluntarily parted with the possession of it, he divested himself of all interest in it. But consider Holliday as the agent of English, and the result is precisely the same. Holliday certainly could not bring an action in his own name, as was settled in Gunn v. Cantine,, 10 Johns. 387, a case strikingly analogous to the one under consideration, in which it was said by the court, that a mere agent or attorney not having any beneficial interest in a contract, cannot maintain an action in his own name.
The second point which I deem it necessary to mention, is the alleged defect in the count in trover, in which it is not stated that Holliday was possessed of the note in controversy, as of his own property. This, by reference to the authorities, will be seen to be a valid objection. 1 Chitty, 185. But the first question being decisive of the cause, it is not necessary to inquire whether the defect in the. count in trover has been aided by verdict. The two first counts in the declaration are fatally defective in not setting out a title in the plaintiff to the note> and that is not cured by verdict. My opinion is that the judgment of the circuit court ought to be reversed.
This case came before the supreme court of Arkansas, and is fully reported in 2 Ark. Hep. 512; and the doctrine advanced in the above opinion was sustained, and the judgment reversed. The following is a synopsis of the decision of the supreme court.
1. An attorney is not liable in the discharge of his official duty for claims put into his hands to collect as such attorney, unless it be shown that he has been guilty of culpable negligence in the prosecution of the suit, or that thereby the plaintiff has lost his debts; nor can he be held liable for moneys collected by him as an attorney, unless a demand be made upon him, and he refuses to pay it over, or remit it, according to the instructions of his client.
In Sneed v. Hanlyport, it was held, that an attorney was not subject to an action for moneys collected by him, until demand, directions to remit, or some equivalent act; and that the statute commenced running from that point of time. 5 Cowen, 376 ; 7 Wend. 320; 3 Barb. 584.
In Cummins v. McLain, 2 Ark. 412, it was decided that an attorney at law cannot be held liable as for money collected by him as attorney, unless it be first proved that by failure to prosecute claims put into his hands for collection with due and proper diligence, the plaintiff lost 1ns debt; or that he had collected the money, and refused to pay it over on demand, or to remit it according to instructions. The liability of the attorney rests upon the principle of his agency for the plaintiff, and he holds the money for his principal in that capacity, and the court said the plaintiff must demand payment or request the money to be remitted before the attorney can be charged with being guilty of laches or culpable negligence; and it was observed that it would be in opposition to the nature of the trust created between the parties, as well as against good faith and justice, to hold the attorney liable before demand and refusal to pay, or remit the money. Sevier v. Holliday, 2 Ark. 570 ; Palmer v. Ashley, 3 Ark. 82.
The legitimate object, however, of a demand is to enable a party to discharge his liability agreeable to the nature of it, without suit. jBut if an attorney denies the liability, or the right of the other to call upon hinr, a demand, or directions to remit, it is conceived, would be as unnecessary as useless, and it was so held in Walradt v. Maynard, 3 Barb. 586. And in chancery the rule is, that if the defendant denies the right of the plaintiff, he cannot insist in his defence that there was no demand. Ayer v. Ayer, 16 Pick. 335.
The law dispenses with the necessity of a demand where the defendant has committed acts inconsistent with the title of the plaintiff, and conducted himself in such a way as to render a demand wholly unavailing. Beebe v. De Baun, 3 Eng. 565 ; La Place v. Aupoix, 1 Johns. Cas. 407.
Where there has been an actual conversion by the defendant, no demand is required. 9 Bac. Abr., Trover (B), 638.
2. Where there is any defect, imperfection, or omission in any pleading, whether in substance or form, which would have been a fatal objection on demurrer, yet if the issue joined be such as necessarily requires on the trial, proof of the facts so defectively or improperly stated or omitted, and without which it is not to be presumed that either the judge would have directed the jury to give, or the jury would have given a verdict, such defect, imperfection, or omission, is by the common law cured by the verdict. 1 Saund. 228, notes; 1 Term Rep. 545 ; 3 lb. 147 ; 4 lb. 472; 7 lb. 518; 1() Bae. Abr. Verdict, (X), 354.
After verdict, nothing is to be presumed except what is expressly stated in the declaration, or what is necessarily implied from the facts that are stated ; that is, where the whole is stated to exist, the existence of the parts is implied; and where the claim is alleged to exist, the existence of the component links will be implied after verdict. But if the plaintiff wholly omits to state a good title or cause of action even by implication, matters which are neither stated nor implied need not be proved at the trial, and there is no room for intendment or presumption, as the intendment must arise from the verdict when considered in connection with the issue upon which it was given. 1 Term Rep. 141 ; 4 lb. 472 ; 7 lb. 519; 3 lb. 481; H. Bl. Rep. 569. The cases of presumption are where the plaintiff has stated a case defective in form, not where he has shown a title defective in itself. 4 T. R. 472. If any thing essential to the plaintiff’s action be not set forth, though the verdict be found for him, he cannot have judgment; because if the essential parts of the declaration be not put in issue, the verdict can have no relation to it, and if it had been put in issue it might have been found false. Therefore, in an action against an attorney for failing to collect a note, a count stating that the plaintiff caused to be delivered to the defendant, and the defendant received from him a note made by a third person for so many dollars to bring suit on, recover, and collect of that third person for the use and benefit of the plaintiff for certain fee and reward to the defendant in that behalf, is so defective in stating the plaintiff’s title to sue, that a verdict on it in favor of the plaintiff will not sustain the judgment. No title to the note in the plaintiff is stated by or implied in any of these allegations, and no facts are stated which could not be proven without at the same time establishing the plaintiff’s title to the note or legal right to receive the proceeds; nor is it stated or implied that the note was due when so delivered, nor to whom payable, nor what sum was due upon it. Such a count shows a defective title, and not a title defectively stated, and no proof is admissible under it, which can make it good. Under such a count a receipt given by the defendant, stating that he had received of the plaintiff a note for so many dollars against A. B., in favor of C. D., so far from proving the title to the note to be in the plaintiff, proves it to be in C. D., who is the legal owner, and is held in law to have possession of it. Such a receipt is, therefore, inadmissible in evidence under such a count.
3. A party cannot be altowed to prove more than he has alleged in his declaration, and when he omits to allege a fact essential to his action and not involved or implied in the pleadings, or inferable from the verdict, he can offer no proof of such a fact.
A party having no interest in a note cannot be injured by the failure of an attorney to collect it. If his declaration does not show such an interest, or such an interest is not legally implied from its allegations, he cannot prove his interest, nor does he show any right to recover.
4. To entitle a plaintiff to recover in trover two things are necessary to be stated and proved, first, property, either general or special, in the plaintiff, and second, a wrongful conversion. In trover for a note, the omission to state in the declaration that the plaintiff was possessed of the note as of his own property, or that it came to the possession of the defendant, would be fatal on general demurrer, but are probably cured by verdict. But the introduction of such a receipt as is mentioned above, disproves the plaintiff’s title to the note, and establishes the interest to be in another, and consequently precluded a recovery.
The opinion of the supreme court was delivered by Dickinson, J., and the case was very elaborately discussed by counsel, as will be seen by reference to it. | [
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Lacy, J.,
delivered the opinion of the Court.— This is an appeal from the Pulaski circuit court. The bill was filed by McLain, the appellee, for the specific performance of a parol agreement in the case of a chattel. It charges that Jesse Roundtree, in his lifetime, was considerably indebted by note and account to the complainant, and in consideration of his forbearance to sue, and give day, Roundtree, on his part, stipulated to procure an obligation of Alien Martin, as soon as he completed the building of a cotton-gin for Martin, and to assign the same to the complainant, or so much thereof as would satisfy and discharge his, Roundtree’s, debt to McLain. It was further stated, as agreed between the parties, if Martin’s note exceeded the amount due McLain, he was to pay the difference or excess to Roundtree. The answer denies the allegations of the bill, and puts the complainant to the proof.
It has been so repeatedly and constantly ruled, that equity will not enforce the specific performance of a contract where either the contract or the proof is uncertain, that reference to the decisions is deemed almost unnecessary and superfluous. Colson v. Thompson, 2 Wheat. 336; 1 Fonb. Eq. 172; 4 Johns. Ch. R. 559; 11 Ves. 522.
The agreement is substantially proved by one witness, and very imperfectly by any other testimony. Under all the circumstances of the case, it is questionable whether the proof would be sufficient to sustain the bill; but waiving that objection, and considering the agreement as fully established, the court will proceed to examine what equity the complainant has to ask for the extraordinary interposition of the chancellor. The jurisdiction to decree the specific performance of the agreement of parties, is founded on a legal title to damage, and will not be enforced, where adequate compensation can be recovered by an action at law. Flint v. Brandon, 8 Ves. 159; Halsey v. Grant, 13 Ib. 73; 1 Peters, 305 ; Holly v. Edwards, Burr. 159 ; Parkhurst v. Van Cortlandt, 1 Johns. Ch. 282 ; 1 Bibb, 212; 2 Ib. 273.
If McLain has actually sustained an injury, bis redress is ample, by an action on the case for damages. It is no answer to say that Roundtree’s estate is insolvent. The question is not, whether it is insolvent or solvent; but has the party as full and complete a remedy at law as in equity ? If so, he cannot come into this court for relief. What legal or equitable right has McLain to the note, or obligation which Roundtree promised to procure from Martin, and in what way or by what means can he set up his claim ? At the time the agreement was entered into, it had no legal existence, for nothing certain was then due Roundtree from Martin, and his indebtedness, which afterwards accrued, depended upon a contingency which might never happen. Could McLain, by bill, or otherwise, have prevented Martin from discharging his own note, after its execution, or Roundtree from assigning it to an innocent purchaser for a valuable consideration ? Surely not. If he had exhibited his bill in the lifetime of the intestate, could a court of chancery have decreed the specific performance of the agreement, when it possessed no means by which Martin could be compelled to give the note, or Roundtree to assign it ? What sort of legal right had the complainant to the note, which could be enforced? None at all.
He does not claim it by delivery, for it never was in his custody or possession; nor by assignment, for this bill is to effect that object. It is contended, however, that this agreement constitutes an equitable charge upon a particular fund in the hands of Martin, and that equity will consider that done which ought to be done, and consequently enforce the agreement. This doctrine is unquestionably true, when a proper case arrives for its application ; but the present case is not embraced by this principle, nor does it fall within the reason of the rule. It is, however, but justice to add, that the position was maintained with much learning and skill, and in a manner highly creditable to the ability of the counsel. The case of Row v. Dawson, 1 Ves. sen. 331, was cited and relied on by the counsel for the complainant; but that case and this are widely different, and the principle there settled by Lord Chancellor Hardwicke, so far from sustaining this bill, shows that it should be dismissed for want of equity. There, money was advanced on a draft drawn by the borrower, on certain moneys then due and to become due to him at Michaelmas, and the draft was also placed in the hands of the proper officer of the exchequer, which the court declared amounted to an assignment, and that the officer could not have paid the money to the drawer without making himself liable, because he had actual notice of the assignment for a valuable consideration. It could not be contended, that Martin could not have discharged his note to Roundtree, without making himself liable to McLain. Besides, in that case there was both assignment and delivery of the draft, and a prior lien for the money advanced, which immediately attached. Here none of these requisites existed, which cannot indeed be dispensed with; there was neither assignment nor delivery, nor was any thing due or certain, at the time of the contract, nor does the bill allege that advancements were made on the faith of the agreement, or of any particular fund.
An application to a court of chancery for the specific performance of a contract, is always addressed to their sound discretion. 1 Ves. jr. 565. Lord Somers, in the celebrated case of The Marquis of Normandy v. Lord Berkley, 5 Viner, Abr. 539, said that a specific performance ought never to be decreed, though the contract might be good in law, and damages recoverable for its breach, unless it was fair and reasonable in every particular. If an executory agreement is hard or oppressive, it is the constant practice to refuse a specific performance. Barnardiston v. Lingood, 2 Atk. 133; Howell v. George, 1 Mad. Ch. R. 15-17; 2 Sch. & Lefr. 554; Cases Temp. Talbot, 234. This bill is to compel the specific performance of a contract respecting a chattel, which is never decreed, except in cases of extreme and peculiar hardship, and when there is no adequate remedy at law. Mason v. Armitage, 13 Ves. 37; 1 P. Williams, 570; 3 Atk. 383; Hardin, 553; 3 Atk. 389; 2 Ves. sen. 238. And to grant relief would violate the rule that a court of equity will never allow one creditor to gain an inequitable or undue advantage or preference over others. Riggs v. Murray, 2 Johns. Ch. R. 576 ; St. John v. Benedict, 6 Johns. Ch. R. 112. This contract is certainly executory, and if enforced, it would prefer one creditor to another, without any lien, assign ment, or legal right in his favor. It is neither fair, reasonable, nor just, for one to appropriate all the estate to his own benefit, without any advancement made in favor of the debtor, on the faith of the particular or expected fund. The bill does not allege, that at the time the contract was made, Roundtree was solvent and afterwards became insolvent, whereby the complainant lost his debt. This contract is deemed hard and oppressive, on the part of Roundtree, for it could easily have been, and probably was, extorted from his fears and necessities. If agreements of this kind should be specifically enforced, then great injustice and oppression might be exercised by creditors adjusting and settliug their claims with their debtors, which ought not to be allowed.
The decree of the circuit court, in favor of McLain, must be reversed, and the bill dismissed for want of equity, at his cost.
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Johnson, J.,
delivered the opinion of the Court. — This suit was brought for the recovery of the penalty provided for a violation of the thirteenth section of the Post-Office Act of 1845. 5 Stat. 736.
That section declares in substance that nothing contained in the last-named act shall have the effect, or be construed to pro hibit the conveyance or transportation of letters by steamboats, as authorized by the sixth section of the act of 1825 regulating the post-office department (4 Stat. 104), provided that the requirements of such sixth section be strictly complied with, by the delivery, within the time specified by that act, of all letters so conveyed not relating to the cargo or some part thereof, to the postmaster at the post or place to which such letters may be directed or intended to be delivered over from the boat; but it is expressly enacted that all the pains and penalties provided by that act for any violation of the provisions of the eleventh section thereof shall attach in every case to any steamboat, or to the owners and persons having charge thereof, the captain, or other person having charge of which, shall not comply with the requirements of the sixth section of the act of 1825. The eleventh, by reference to previous sections, fixes the penalty at $150, and to recover which this action of debt has been instituted.
The sixth section of the act of 1825, above referred to, enacts substantially that it shall be the duty of every master or manager of any steamboat which shall pass from one post or place to another in the United States, where a post-office is established, to deliver within three hours after his arrival, if in the daytime, and within two hours after the next sunrise, if the arrival be in the night, all letters and packets addressed to or destined for such post or place to the postmaster there; and if any master or manager of a steamboat shall fail so to deliver any letter or packet which shall have been brought by him, or shall have been in his care or within his power, he shall incur the penalty therein prescribed; and every person employed on board any steamboat shall deliver every letter and packet of letters intrusted to him to the master or manager of such steamboat before the vessel shall touch at any other post or place; and for every failure or neglect so to deliver, a penalty of ten dollars shall be incurred for each letter or packet. 4 Stat. 104.
These constitute the substance of the Post-Office Acts, as far as applicable to the present case.
On the trial, the plaintiff proved that Robert Beaty, the defendant, was the master and owner of the steamboat “ Arkansas No. 4;” that upon her arrival at Louisburg, in this State,. from the city of New Orleans, at each of which places a post-office had been established, the clerk of the boat was in possession of a letter bearing date at New Orleans, written by M. Greenwood, residing there, and directed to M. Whisler at the town of Louisburg, and that the letter did not relate to the cargo of the boat, or any part thereof; and that on the arrival of the boat at Louisburg, the postmaster there demanded the letter of the clerk of the boat, who refused to deliver it to him, but did deliver it to a private individual, who handed it to the person to whom it was addressed ; and that it was not placed in the post-office at all. This was the substance of the evidence on the part of the plaintiffs.
There was no evidence adduced, other than the above, to prove that the defendant had any knowledge that the letter was on board the boat, or in the possession of the clerk, or that it was in his power, or that he knew of the failure and refusal of the clerk to deliver this letter to the postmaster at Louisburg upon the arrival of the steamboat there.
Before the jury retired, at the request of the district attorney, the court, by the presiding justice (the Hon. Peter Y. Daniel), instructed them that the defendant, as master of the boat, was responsible for the acts of the clerk; and if they found from the evidence that he received the letter at New Orleans and brought it up to Louisburg, and there failed to deliver it to the postmaster, and that the letter did not relate to the cargo of the boat, or any part thereof, the defendant was subject to the penalty, although he was in fact-ignorant of its delivery at New Orleans, of its transmission, and of the failure of the clerk to deliver it to the postmaster at Louisburg.
The jury found a verdict for the plaintiff for the penalty of $150, and the defendant has interposed this motion for a new trial, on the ground of misdirection on the part of the court.
Upon looking into the acts of congress imposing this penalty, and giving them the best consideration of which I am capable, I am of opinion that we erred in the instructions we gave to the jury, and which doubtless influenced their finding.
By the terms of the act of congress, the defendant is subject to the penalty prescribed when he fails to deliver any letter or packet to the postmaster, which shall have been brought by him, or shall have been in his care or within his power. Now, as already observed, there was no evidence adduced to the jury from which they could presume that the defendant had brought the letter, or that it was in his care or within his power. In either of these cases, the letter must have been within his knowledge, for it could hardly be said to be brought by him, or to be in his care or within his power, according to the obvious meaning of the act, if he was ignorant of the existence of the letter, its conveyance, and destination. The clerk alone was proved to have had the letter at Louisburg, in the absence of the defendant; and for any thing that appeared from the evidence, the clerk may have received the letter at New Orleans, secretly, kept it in his own possession, and failed to deliver it to the defendant, or inform him that he had it, or place it in a situation to enable him to obtain a knowledge of it, or bring it to the knowledge of the defendant in any way. It is not necessary to bring express knowledge home to the defendant, and the court is not to be so understood. But it is essential to show such facts and circumstances as render it probable that the defendant, by the use of ordinary and reasonable diligence, obtained that knowledge, or could have done so, and thus authorize the jury to presume it.
If, in the absence of all knowledge, the master or captain or owner of the steamboat is absolutely responsible under this act for the conduct of the clerk, as the district attorney insists, and as we instructed the jury, then the verdict was right; for in that view, the liability was clearly established, and the case fully made out on the part of the government. But under the circumstances of the case, I think, as already stated, that we erred in instructing the jury that the defendant was responsible for the acts of the clerk; that it was not material whether the defendant did or did not know of the existence of the letter, and that in either event he was equally liable for the penalty, provided the letter was delivered to the clerk, brought up by such clerk, and not delivered to the postmaster at Louisburg, according to the sixth section of the act of 1825.
The clerk, for every failure or neglect to deliver to the master of the boat any letter or packet of letters intrusted to him before the vessel touches at any other place, incurs a penalty of ten dollars. 4 Stat. 104. It would seem strange indeed, that the clerk should be subjected to the penalty of ten dollars only for a wilful failure to deliver the letter to the master of the boat, and the master subjected to the penalty of one hundred and fifty dollars for an omission to deliver a letter, of the existence of which he was entirely ignorant. The act is penal in its consequences, and must be strictly construed; and as knowledge is generally a principal and indispensable ingredient in offences, it would seem reasonable to hold the government to the proof of it, or to the proof of circumstances from which it might be fairly inferred, before the penalty can be demanded.
The master of a steamboat is liable for this penalty when he fails to deliver a letter' or packet which has been brought by him, or was in his care, or was in his power; but, in my judgment, the sound construction of the acts of congress is, that the defendant could not be placed in this category at all, where the letter was not within his knowledge, nor placed in a situation to enable him, with the use of reasonable diligence, to obtain such .knowledge. Knowledge on his part, express or implied, I regard as essential to his liability, and without which the acts of congress have no application, and do not embrace the case. It is not to be supposed that it was the intention of the lawmaker to inflict a penalty upon the master of a steamboat in a case where he was ignorant that a letter had been brought up'on the boat, either by the clerk or any person employed on board, and had not the means of ascertaining the fact by the use of reasonable diligence. This would be little less unjust than the disreputable device of the Roman tyrant who placed his laws and edicts on high pillars, so as to prevent the people from reading them, the more effectually to ensnare and bend the people to his purposes.
For these reasons, I think a new trial ought to be granted, and it is so ordered; but, as it was the error of the court which renders this necessary, the costs must abide the event of the suit. ' Ordered accordingly.
On the second trial, which was had 22d April, 1848, the Hon. Benjamin Johnson, district judge, presiding; the Hon. Peter V. Daniel, associate justice of the supreme court of the United States, absent; the plaintiffs, in addition to the evidence on the previous trial, proved that the letter in question was, on its reception at New Orleans, placed by the clerk of the “ Arkansas No. 4” with other letters in the letter box of the boat, and impressed with the boat stamp; that the defendant at all times had access to this letter box, and that it was his habit to examine and see what letters were placed on the boat; but there was no other proof as to his knowledge of the letter.
S. H. Hempstead, district attorney, for the United States.
Daniel Mingo and F. W. Trapnall, for the defendant.
Johnson, J.,
instructed the jury, that by the act of congress of 1845, section thirteen (5 Stat. 736; 4 Stat. 104), the master of a steamboat is liable for a letter brought by him, or committed to his care, or within his power. It is the province of the jury to determine from the evidence whether the letter in question was either brought by the defendant, or committed to his care, or was within his power. If so, he is subject to the penalty of one hundred and fifty dollars claimed by the plaintiffs. Was it in his power by the use of reasonable diligence? The law, in my judgment, does not require the exercise of the utmost diligence of which the case was susceptible. It only requires such diligence to discover the letter as rational men ordinarily employ in their own affairs; and of this the jury must judge.
Verdict and judgment for plaintiffs for one hundred and fifty dollars penalty and costs, and motion for a new trial denied. | [
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The court suppressed depositions taken on the part of the plaintiff under the 30th section of the Judiciary Act of 1789, (1 Stat. 88,) because the judge taking the same certified that the testimony of the witnesses taken by him, “ was reduced to writing under my direction.” It was held, that the act of congress must be strictly complied with, and, as according to the express requisitions of that act, the deposition of a witness shall be reduced to writing “only by the magistrate taking the deposition or by the deponent in his presence; ” no other person was legally competent to perform that duty, and that the magistrate could not depute any one to perform it; that the act itself excluded the idea that any others than those named could perform it, and so it was a fatal defect.
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Opinion oe the Court. — This was a motion made in the Chicot circuit court by Miles against Smith, as constable of Oden township, to compel him to refund money collected from Miles.
Andrew Latting obtained judgment against Miles before Thomas James, a justice of the peace of Oden township, which was taken to the Chicot circuit court by certiorari; and pending the writ of certiorari, the justice issued execution, delivered it to Smith to execute, which he did do, so far as to make the costs; and this is the money prayed to be refunded, and judgment was rendered for that purpose.
It is not shown that Smith, the officer, had any knowledge of the existence of the certiorari; and under this state of case, Smith’s counsel contend that he is not liable at all, but if so, not by motion ; and this we hold is a correct position.
If the subject-matter is within the jurisdiction of the magistrate, and the execution is regular on its face, the constable cannot be liable as a trespasser. 1 Chitty, PL 210 ; Wise v. Withers, 3 Cranch, 331; 8 Johns. 45. This case falls within that rule, as far as we can judge from the record.
If Smith had knowledge of the certiorari, and acted maliciously, he might be liable to an action on the case for such malicious conduct. In speaking of the action of trespass, it is said, that “no person who acts upon a regular writ or warrant can be liable in this action, however malicious his conduct; but case for the malicious motive, and want of probable cause for the proceeding, is the only sustainable form of action.” 1 Chitty, Pl. 214; 1 Strange, 509; 2 Term Rep. 653; 6 lb. 245; Willes, Rep. 32. There is no pretence that Smith acted with a malicious intention, and therefore could not be liable in case, (1 Chitty, PI. 152,) and we have seen is not liable in trespass. Can it, then, be seriously contended, that if not liable in any form of action, he could be held responsible on motion ? Supposing Smith, however, to have acted maliciously, it is a question of fact to be tried by a jury, and not by motion, the latter remedy being founded on the record alone, except in a few cases under the statute, and provided for by statute, to prevent the delay and costs of a regular suit, and which does not usually admit of a trial of disputed facts. Judgment reversed. | [
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Daniel, J.
The proof taken in the case is not sufficient to show that the slaves were unsound at the time of their purchase as alleged by the complainant in his bill. This is a ground to be made out by him clearly and satisfactorily before he could . be entitled to relief in any aspect of the case. And having failed in that respect, he could not in any event succeed. "But there is another objection which is fatal to his claim to relief. It is that he still holds the slaves in possession, and does not offer to surrender them, or to place the parties in statu quo. His object appears to be to enjoin the collection of the purchase-money and retain the negroes. Such conduct a court of equity cannot sanction. If he desires to rescind the contract for any cause whatever, and is entitled to do so, he is bound to restore to the adverse party what he received from him. This is demanded by the rules of equity and fair dealing, and is without exception in the forum of conscience. He cannot hold the property of another, and refuse to pay for it; and as it appears by the evidence that he retains the possession and claims the slaves as his own, and does not offer to surrender them, it is not only a complete bar to relief, but very significant evidence that the slaves are not so valueless as the complainant has alleged them to be in his bill.
The injunction granted in this case must be dissolved, the bill dismissed with costs, and the defendant remitted to his judgment at law, and execution to be issued thereon.
Decreed accordingly. | [
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Lacy, J.,
delivered the opinion of the Court. — This is a writ of error, prosecuted by the defendants below to a judgment of the Phillips circuit court. The suit is in the name of the governor, for the use of William Strong, against Nisa Campbell and Samuel Campbell, as principals, on an administration bond, and William Dunn and Ichabod Dunn, as their sureties. The pleadings present no little perplexity, but the court will, however, without noticing the extraneous matter with which the record is incumbered, proceed to the examination of all the questions they deem important to the decision of the cause.
The breaches are properly assigned, for the declaration avers-that neither Nisa Campbell, before her intermarriage, nor Samuel Campbell, since that time, nor William Dunn, nor Ichabod Dunn, nor either of them, have paid or discharged the bond. Nisa Campbell had no right, to pay, but by the consent and as agent of her husband after her-intermarriage, and hence it was not necessary to aver, as it i§ not contended that she did pay after that time. The demurrer to the declaration was properly overruled.
The suit ought not to have abated upon the suggestion of the death of James Miller, who was then acting governor of the territory, for he was only a nominal party upon the record, and his name might have been stricken out without injury, and that of the governor alone retained, who, in legal contemplation, is always in being. If the party was even improperly ruled to trial' at the same term at which the suit was revived in the name of his successor, it could only have operated as a continuance, and questions of that character are always left to the sound discretion of the court that tries the cause, and it must be a very flagrant case of injustice that this court would interpose to correct.
The appointment of an elisor to summon a jury stands upon the same principle, and will be presumed to be correct, either by agreement of the parties concerned, or for reasons satisfactorily appearing to the court below.
Oyer was rightfully refused as profert was not made.
The testimony offered by the defendant to show that the judgment of allowance was wrongfully or fraudulently obtained, was properly rejected. If there was a judgment of allowance entered up by a competent court, that matter cannot again be inquired into or be reinvestigated in the way that the defendants proposed to do. The proper time was when that subject was under adjudication, and if the court which made the allowance would not permit the parties to appear, or refused to have competent proof to defeat the claim set up by the plaintiff, an exception ought then to have been filed, and this court could have corrected the error. Besides, if it was a fraudulent judgment, the party injured is not without adequate redress. Wherever a judgment in a court having cognizance or jurisdiction of the matter, is rendered against parties or privies, the matter is at an end, unless again reexamined in the manner pointed out by law.
■If the c.ourt is right in this position, it follows necessarily that the demurrer to the defendant’s rejoinder was properly sustained.
The verdict of the jury is considered substantially correct; and even if it was not, as no exception was taken to it in the court below, it is now too late for the party to avail himself of such an advantage.
The only remaining questions for the court to determine, are the demurrer to the plaintiff’s replication and the objection to the execution that was received as evidence in the cause. These points present something more of difficulty than those that have been disposed of, and are much more important in their bearing upon this cause.
The declaration is upon the penalty of the bond, without setting forth the conditions. A plea of general performance is a response to the issue, and the plaintiff then rejoins and avers the special breach upon which he has a right to recover. This breach constitutes in reality the basis of his action, and the bond is the means alone by which that injury can be redressed. The replication should have been as certain and as particular as the declaration, and as if the suit was for the breach. It should have averred that the defendants were indebted by reason of a judgment of allowance in a given court and at a certain term, and in an exact sum or amount, which judgment remained unpaid, and in full force and effect. Does the replication contain such matter? For aught that appears from the record, the judgment may have been paid off and fully discharged, or have been reversed, or a new trial granted, or the parties by our statutes may have been only entitled on the final settlement of the estate, to a certain portion of allowance, which may have been received. Had issue been taken on it, the only question that could have been submitted to the jury, would have been, was there such a judgment, and the defendants would have been precluded from proving they had discharged it, or complied with all the conditions of their bond. The replication nowhere states that the judgment is now in full force and unreversed, nor that the defendants have failed to settle, as they were bound to do, or pay off the debts according to their dignity or grade. Besides, it should have concluded with a verification, for the assignment of a particular breach surely contains new matter. 1 Chitty, Pl. 325, 330; 2 Starkie, 54, 92; Bacon, Abr. tit. Plea and Pleading, J. C. D.; Robins v. Reese, 1 Saund. 59; 9 J. R. 335; 2 Tidd, 826.
The objection that was taken as to excluding from the jury the reading of the execution, is not answered by saying that it was previously given in as testimony, and that after it was once admitted, it could not be rejected. The defendant’s counsel had no right to object to the reading of the execution. Their right to have it excluded, only attached upon the plaintiff not producing a judgment on which it was founded. Besides, the motion to exclude is in the nature of a demurrer to evidence, which never can be made until the proof is heard. This court cannot presume there was a judgment when the record shows none was produced, nor does it alter the case, that both judgments were rendered in the same court. There might have been a fatal variance between the judgment and execution. The judgment might have been absolutely void on its face, or it might have been a forgery. That no execution can be received as evidence without a judgment, (except in a few particular cases,) is a rule of law so universal and important, that it requires neither authority nor argument to sustain it. It follows that the court on this point, as well as overruling the demurrer of the defendants to the plaintiffs’ replication, erred, and the judgment must therefore be reversed, and the case remanded for a new trial, with leave to the parties to amend their pleadings. Judgment reversed. | [
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Opinion or the Court. — This was an action of assumpsit brought by the plaintiffs against the defendants, upon a bill of exchange, for goods sold and delivered, and on an account stated. The defendants filed the plea of nonassumpsit sworn to, the effect of which was to deny the execution of the bill of exchange as well as the whole cause of action. Rev. Stat.
It may be admitted that the plaintiffs failed to prove the execution of the bill of exchange, and cannot recover upon the counts founded upon it. Can they recover on the evidence on the count for goods sold and delivered ?
From the evidence it appeared that John J. Bowie, as the authorized agent of the defendants, purchased the goods from the plaintiffs, and the defendants afterwards received the goods. John J. Bowie expressly stated that Littlebury Hawkins did not assist him in purchasing the goods; he alone purchased them for the defendants, as their authorized agent. He also stated that when he purchased the goods from the plaintiffs, he perhaps told them that he was doing business for the defendants; but informed them that Hawkins was to pay them by a draft on Turman, Curdy & Co. He further stated that he believed that the draft declared on was drawn by Hawkins in liquidation of the amount of the purchase-money of the goods, and that he was present at the time; but did not know that Hawkins signed any other name than his own. It is, then, apparent from the evidence of John J. Bowie, that he, as the authorized agent of the defendants, purchased the goods from the plaintiffs, and at the time informed them that Hawkins was to pay, by a draft on Turman, Curdy & Co.; that Hawkins, in the presence of John J. Bowie, did draw such a draft and deliver it to the plaintiffs ; but that he drew it as agent of the defendants, and not in his own name. Bowie does not say whether Hawkins was to draw in his own name, or as agent of the defendants; but the latter in fact drew as agent of the defendants in the presence of John J. Bowie, and delivered the draft to the plaintiffs.
It is highly improbable that John J. Bowie should have been ignorant of the character in which Hawkins drew the draft; but admitting that he was, still his presence gave sanction and approval to the bill of exchange as drawn by Hawkins. The plaintiffs received it with the approbation of John J. Bowie, because he was present; was cognizant of the matter, and did not object. 13 Peters, 119; 1 Sumner, 314; 2 Stark. Ev. 21.
Take another view of the case. Suppose the contract between the parties to be, that the plaintiffs would take the draft of Hawkins in his own name, as payment for the goods; does that discharge the defendants in case Hawkins does not give such a draft ? I apprehend not. If Hawkins had given such a draft, and the plaintiffs had received it unconditionally as payment, it might have operated to discharge the defendants, whether the draft was afterwards paid or dishonored. 1 Salk. 124; 2 Ld. Raym. 929; 6 Cranch, 253, 264; 5 Johns. 72; 9 lb. 311.
But there is no proof that Hawkins ever gave such a draft, and on the contrary there is full proof by John J. Bowie’s deposition that Hawkins drew a draft as agent of the defendants, in their names and in the presence of John J. Bowie, and delivered it to the plaintiffs. This draft the defendants have refused to pay, and have denied the authority of Hawkins to draw in their names. There is full proof that the plaintiffs sold and delivered the goods to the defendants; and the latter having failed to show payment for the goods, it follows that they are entitled to recover on the common counts therefor. From the testimony it is clear enough that the goods were purchased on the credit of the defendants, and not on the credit of Hawkins, who cannot be held responsible for them, in any manner, or in any form of action.
I am satisfied that the verdict of the jury in favor of the defendant, is contrary to the evidence, and a new trial must therefore be granted, the costs to abide the event of the suit.
Ordered accordingly. | [
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Opinion oe the Court. — Clark brought an action on the case against Campbell, in the circuit court, and obtained a judgment, to reverse which, Campbell has appealed to this court.
The first question material to be decided relates to the continuance of the cause.
At the September term the parties appeared, and by consent, the defendant was allowed to plead on or before the first of December. On the 28th of November, the defendant filed his plea, and on the 27th of February the plaintiff filed a similiter, making up the issue. At the March term the cause was continued on the motion of the defendant; and at the July term the defendant moved for a continuance, on the ground that the plaintiff had not served him with a copy of his replication fifteen days before the term of the court; which motion was overruled. The defendant, in our judgment, was not entitled to a continuance. By referring to the Digest of Geyer, 249, it will be seen that it is only where the plaintiff continues his cause at the first term without filing his replication, that he is bound to file it and serve the defendant or his attorney with a copy fifteen days before court. In this case the plaintiff filed his replication before the second term, and at that term the cause was continued. We do not think it was necessary, under these circumstances, to serve the defendant with a copy of the replication, if indeed a similiter may come under that denomination. It was on file in the court, and the defendant was bound to take notice of it. The motion for a continuance was, therefore, properly overruled.
The only question which relates to the merits, is, whether it was necessary to aver and prove a demand.
The action was brought upon a note in the following words: “ On or before the first of June, 1827, I promise to pay Benjamin Clark, or order, $200, which may be discharged in cotton at the market price in the fall of 1826.”
It has been heretofore decided by this court, that in cases where the time is fixed for the payment of property, by the contract between the parties, no demand is necessary to entitle the plaintiff to maintain his action. This doctrine is clearly settled by the adjudication of the court of appeals of Kentucky, and we see no reason to depart from our former opinion, sustained as it is by authority so respectable. M’Gee v. Beall, 3 Lit. 191. It is only in cases where property is payable on demand, or where nó time is fixed for its payment, that a demand must be averred and proved. But the note in question is not a note for the payment of property. It is a note for the payment of money at a certain day, with a provision that it may be discharged in property before the day on which the money became due. It is an election given to the obligor to pay it in property by a specified time, but he is not bound to pay it in property, and if he fails to avail himself of that stipulation, he is bound to pay the money according to the terms of the contract. In such a ease no demand need be averred or proved; the plaintiff has no right to make the demand. It rests with the defendant whether he will avail himself of the stipulation in his favor, giving him the privilege of paying the debt in property. It is equally well settled, that the defendant’s place of residence is the place for the payment of onerous property, unless a different place is specified in the contract.
We are therefore of opinion, that the court below did not err in refusing to instruct the jury, that a demand was necessary to entitle the plaintiff to maintain his action. With regard to the value of the cotton, we are also of opinion that it was wholly unnecessary to prove it. The note was given for two hundred dollars, which might be paid in cotton at the market price. Upon a failure to discharge the note by delivering, or tendering the cotton, the amount to be paid by the defendant was ascertained and fixed in the note itself, and the value of cotton could not increase or diminish it. Judgment affirmed. | [
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History oe the Claim. — The heirs of Don Joseph Vallieré, formerly captain in the 6th regiment of the Spanish army serving in Louisiana, claimed title to a large tract of land situated partly in the State of Arkansas and partly in Missouri, on the following facts and documents: —
1. The register of the land-office at New Orleans certifies that among the Spanish records under his custody, and forming part of the archives of his office, is a book bearing this title: No. 4, subdivided into volumes or sections, under the title of a “ Register de los Primeros Decretos de concession de tierra; ” which book exhibits at volume 6, page 31, an entry in Spanish, of which the following is a translation: —
“ 11th June, 1793. To Captain Don Joseph Vallieré, in the District of Adcansas, a tract of land situated on the White River, extending from the Rivers Norte Grande and Cíbolos to the source of the said White River, ten leagues in depth.”
2. The surveyor-general of Louisiana certifies that amongst the records of the surveyor-general’s office under his charge, in bundle N, No. 37, he finds a plat of survey and proces verbal, in the Spanish language, of which the following is a translation : —
“ Don Carlos Trudeau, royal and private surveyor of the Province of Louisiana.
“ I certify having measured in favor and in presence of Don Joseph Vallieré, captain of the stationary regiment of Louisiana, a portion of land situated in the jurisdiction of Arkansas, on the north and south banks of Rio Blanco, Rio Cibolos, on the west or superior limit, by the fountainhead or origin of the most western branch of the said Rio Blanco, and by vacant lands of his Majesty, separated from said vacant lands by a line beginning at the same fountainhead of the north-western branch of Rio Blanco, running southwest ten leagues in depth, on the north by lands of his Majesty, separated from these by a drawn line beginning at the Rio Norte Grande, commencing at a point distant ten leagues in a direct line from its mouth or confluence with the said Rio Blanco, running in a course nearly west until it meets the fountainhead or origin of the most western branch of the Bio Blanco, and on the south side by vacant lands of his Majesty, separated from these by a line drawn apart, beginning at a, point where ends the south-west limit, ten leagues from the fountainhead or origin of the most western branch of the Bio Blanco, running on a parallel line with the said Rio Bianco, descending ten leagues in depth, until it meets Bio Cibolos, at the distance of ten leagues in a direct line from Bio Blanco. All of which is fully demonstrated in the figurative plan which precedes, in which is marked the dimensions, courses, limits, trees, and posts, serving as artificial or natural boundaries.
“ The line and limits have been made at the request of the grantee, and in compliance with the order from the governor-general, El Baron de Carondelet.
“ 18th June, 1793. I certify to all which precedes, in order that it may be verified.
“ I delivered the present with the figurative plan 24th October, 1793.
(Signed) “Don Carlos Trudeau, Surveyor-general.”
3. That in the regular record books kept in New Orleans by the Spanish authorities before 1803, but removed by them to Cuba, where the same, as it is said, now are, is recorded a grant of the foregoing land, in the Spanish language, of which the following is a translation:—
“Don Francisco Baron de Carondelet, &c. &c.
“ For the benefit of the public, and for the greater encouragement of agriculture and industry of the country, I have judged it expedient to take steps for surveying and granting the royal lands in this province. Therefore, I grant to Don Joseph Vallieré, captain of the regiment stationed in Louisiana, a portion of land in the jurisdiction of Arkansas, situated on both banks of the Rio Blanco, ten leagues on both banks, beginning, &c. [describing it as in the above procés verbal, and then proceeds] which will be better seen on the figurative plan made by my order by the surveyor-general, Don Carlos Trudeau, of this province. the 24th October last (it being impossible for the royal surveyor to make an actual survey at the time). And, in virtue of my order of June of the current year, by which I made him a grant, and ordered the surveyor-general to put him in possession according to the usual form, in consequence of the power which has been conferred on me by the king, whom God preserve, I grant in his royal name to the said Don Joseph Vallieré, captain of the regiment of infantry of Louisiana, the said portion described above, in order that he and his legitimate successors may dispose of it as property belonging to him.
“ Done in New Orleans, 22d December, 1793.
(Signed) “ El Baron de Carondelet.”
Don Joseph Valliéré died in 1799. Whether he ever took possession of the land, or any part of it, or made any settlement thereon, does not appear; but as it was in the heart of the Indian country, and they hostile, it is probable no settlement of any consequence was made under the grant. No claim of title was presented by his heirs to the commissioners appointed by the act of congress of March 2;> 1805, or the subsequent laws on the subject of French and Spanish grants in the province of Louisiana; nor is the grant mentioned in any of the reports made by any of these commissioners to the treasury department ; nor does it appear to have been set up or brought to the notice of any tribunal, or to the notice of the government in any way until now. The first time it appears to have been brought to notice in any form was, that in 1844 a pamphlet was published in New York by “ Jared W. Bell, printer, corner of' Ann and Nassau streets,” containing copies of what purported to be the original title papers and translations, as above set forth, and legal opinions by Daniel Webster, Rufus Choate, A.. P. Upshur, David B. Ogden, Thomas Addis Emmett, James. Kent, J. Blunt, John Sergeant, and B. F. Butler, pronouncing the claim valid and the title complete.
Daniel Dingo and F. W Trapnall, for petitioners.
S. II. Hempstead, district attorney, for the United States.
' But the fact that a claim of such magnitude, and thus apparently formal and regular as to muniments of title, should be allowed to sleep more than half a century, is a strong circumstance against its validity, and, on the familiar principle of lapse of time, ought to be almost conclusive against it.
The United States, by S. H. Hempstead, district attorney, answered the petition, denying its allegations and the validity of the claim, and demanded strict proof thereof.
On the 22d of June, 1847, the petition was dismissed for want of prosecution, and a motion to reinstate it, made subsequently, was overruled. | [
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Eskridge, J.,
delivered the opinion of the Court. — This was-an action for the recovery of money due upon an account brought by Thomas Jacobs against John Jacobs, before a justice of the peace for the county of Lafayette. There was a verdict and judgment before the justice, in favor of the plaintiff, for $78.00, from which the defendant appealed to the circuit court, which having dismissed the appeal, the cause has been brought by appeal to this court.
Two questions are presented by the record: first, whether the circuit court erred in dismissing the appeal; and second, whether the judgment rendered by that court, upon such dismissal, was, correct and suitable. A justice of the peace is required by the statute to keep a docket, and to note in it every step taken in the progress of a cause pending before him, and a transcript from the docket thus kept is made evidence; and it is incompetent for the justice, after he shall have certified a transcript from his docket to the circuit court, to supply any defect that may exist in it, by certificate or otherwise; nor can such defect be supplied by the testimony of persons who were present at the trial before the justice. The transcript, as certified by the justice, must be taken as true, and no extraneous matter can be received by the court to add to or diminish it.
The circuit court decided correctly in refusing to receive both the certificate of the justice and the affidavits of witnesses, that an appeal was prayed for on the day of trial. The fact, whether an appeal was taken on the day of trial, was an important one in the progress 6f the cause, which ought to have been noted by the justice on his docket. The statute provides, that when an appeal is prayed for on the day of trial, it shall not be necessary to give notice to the adverse party; and, on the other hand, when an appeal is not prayed for on that day, a notice of ten days must be given to the opposite party.
It not appearing from the transcript of the justice’s docket, as certified to the circuit court, that either an appeal was prayed for on the day of trial, or that ten days notice, as required, was given, the appeal was very properly dismissed by the circuit court. But, however correct the decision of the circuit court may have been in dismissing the appeal, the judgment of that court upon the dismission was erroneous, and must be reversed by this court. The circuit court, instead of dismissing the appeal, and rendering a judgment for costs only, gave a judgment for the money in controversy, as also for costs. This was error, and on this ground the judgment of the Lafayette circuit court must be reversed. Judgment reversed accordingly. | [
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Opinion oe the Court.— This is an appeal from a decree of the circuit court of Independence county, pronounced in a suit in chancery for a divorce, in which the appellant was plaintiff, and the appellee, defendant. Various reasons have been assigned by the appellant for reversing the decree of the court below. Conceiving, however, that the first point relied upon, is decisive in favor of the appellant, we shall confine our remarks to that point alone. The point is, that the circuit court erred in overruling the demurrer.
The plaintiff below filed his bill, praying for a divorce from bed and board, and the bonds of matrimony. The defendant instead of answering this bill, filed her cross-bill praying a divorce from bed and board, and for alimony. This was clearly irregular.
The bill should have been answered, and the allegations therein contained contested before the cross-bill could be properly filed. 1 Harrison’s Chancery, 35; 3 Black. 444-448. In the case of Lewis v. Lewis, 3 Johnson’s Chancery Rep. 519, the chancellor refused to grant alimony to the wife before she answered, because it did not appear whether she intended to defend herself against the charges in the bill. "We feel no difficulty in reversing the decree of the court below.
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Opinion or the Court. — This is an action of detinue brought by the appellant, a non-resident, against the appellee, which was dismissed at the cost of the appellant, on the motion of the appellee, on the ground that the bond for costs filed by the plaintiif in the court below was defective and insufficient. The condition of the bond, which is alleged to be defective, is in the following words: “ The condition of the above obligation is such, that whereas a non-resident of the Territory of Arkansas is about to commence an action of detinue in the circuit court, &c., and omitting to insert the appellant’s name as the nonresident about to bring the suit. After the judgment dismissing the suit was rendered by the circuit court, the appellant by her attorney presented to the court a new bond for costs, and moved the court for permission to file the same and to reinstate the cause upon the docket, which motion.was overruled by the court.
The counsel for the appellant contends that the court below .erred, first, in dismissing this suit for want of a sufficient bond for costs, and secondly, in refusing to receive a new bond when tendered, and reinstate the cause on the docket.
The statute (Geyer’s Digest, 244) provides, that “any person who shall not be a resident within this territory shall, before he institutes any suit in the courts of this territory, file or cause to be filed, a bond with sufficient security, with the clerk of the court wherein his suit is instituted, for the payment of all costs which may accrue in said suit.” It has been repeatedly held by this court, that unless a bond for costs is filed by a non-resident before he commences his suit, he. shall not be permitted, after the suit is brought, to file the bond, but the court, on motion, will dismiss the action at the plaintiff’s costs. "We are still satisfied that this is the sound and correct construction of the statute, and feel no inclination to disturb the long and well settled practice. The counsel for the appellant, however, maintains the propositions, that the bond for costs filed by the appellant before the institution of the suit is a good and valid bond. He admits that there is a latent ambiguity in the bond, but contends that this ambiguity can be explained by averment and proved by parol evidence. Admitting the correctness of this position, which we are not disposed to controvert, still we are of opinion that the bond in question was not such a bond as was required by the statute. The plaintiff, before he institutes his suit, is required to file his bond with sufficient security for the payment of all the costs which may accrue in the suit. What description of bond is here required ? Will a bond containing a latent ambiguity upon its face, which may be enforced by averments and parol proof, be sufficient ? We think not. It should be a bond in which there is neither a latent nor patent ambiguity; one requiring neither averment nor parol evidence for its explanation and support; a bond clear and explicit in its terms, and free from any substantial defect.
We are, then, clearly of opinion that the bond originally filed by the plaintiff in the court below, was not such a bond as is contemplated by our statute, and that the judgment of dismission was properly rendered on that ground,
The second point presented in. this case is, whether a nonresident plaintiff, having filed a defective bond for the costs, shall be permitted after the commencement of the suit to file a good and valid bond. We have reflected much upon this question, and the conclusion at which we have arrived is, that the best and soundest construction on the statute is to require a good, sufficient, and valid bond anterior to the institution of the writ, and permit no amendment after the suit is brought. The statute requires the bond before the suit is instituted, and a defective and imperfect bond cannot be said to be a strict compliance with the law. Neither justice nor sound policy, in our judgment, calls upon the court to relax the requisitions of the statute. There is no difficulty in preparing and filing a valid and legal bond, and to permit any other kind to be available might lead to consequences highly pernicious. Judgment affirmed. | [
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Opinion oe the Court. — The object of the motion submitted to the court is, to dismiss the appeal in this cause, upon the ground that no appeal lies from an interlocutory order dissolving an injunction. In England, appeals are allowed from interlocutory orders, as well as from final decrees. 1 Harrison’s Chancery, 454. But such appeals do not stay the execution of the order appealed from, nor suspend the proceedings in the court from which the appeal is taken, without a special order granted to that effect. This is the rule in regard to appeals from the rolls to the lord chancellor, as well as to appeals from the chancellor to the house of lords. Warden of St. Paul's v. Morris, 9 Ves. 316; Gwynn v. Lethbridge, 14 Ves. 585; Willan v. Willan, 16 Ves. 215; Macraughton v. Borhen, 1 Jac. & Walk. 48. The analogy is thus preserved to the doctrine at law that a writ of error does not operate as a supersedeas without a special direction for that purpose. Entwistle v. Shepherd, 2 T. R. 78; Kempland v. Macauley, 4 T. R. 436. The only check ever imposed to prevent the party from proceeding to enforce the decree is, to require bond and security to repay, in the event of a reversal of the decree.
In the United States a different course of practice has prevailed very extensively, to prevent the inconvenience of having a cause pending in the original and appellate court at the same time. The rule has been adopted that appeals should only be allowed from final decrees, and then the whole cause is considered to be open, and every order subject to revision and corree tion. In the case of Young v. Grundy, 5 Cranch, 51, the supreme court of the United States decided that, “ no appeal or writ of error will lie to an interlocutory decree dissolving an injunction.” A similar decision has been made by the court of appeals of Virginia^ and the same doctrine is settled in the courts of Kentucky and Tennessee. In New York it was regarded, so late as the year 1823, as an open question, whether an appeal would lie from an order dissolving an injunction. But it was deemed to be settled that the order must be carried into execution, and could not be suspended by an appeal. Wood v. Dwight, 7 Johns. Ch. 295. By a statute passed at a subsequent period, the right to appeal from an interlocutory decree, under special circumstances, was granted. This statute may be seen 7 Johns. Ch. R. 316, note (a). With this view of the law, let us proceed to the consideration of the statutes in ■force here bearing upon the subject.
The first is the act of 1807, (Geyer’s Digest, p. 251, sec. 54,) which provides in substance, that if any person shall feel himself aggrieved by any final decision or judgment given in any of the courts in any cause wherein the amount in controversy exceeds one hundred dollars, he may appeal to the superior court, and after such appeal the court below shall not proceed any further in such case. If this provision stood alone, there could be no ground to dispute that no appeal will lie from any. other than a final decision. But it is contended in argument,, that the 5th section of the act of congress, passed the 17th day of April, 1828, (Acts, p. 46,) repealed the clause above referred' to. It is our opinion that it does not have such effect. The two laws form part of the same system. They are in pari' materia. They do not of necessity conflict with each other, but may and will stand together. The first act is not inconsistent with the last, and, in our opinion, they are both in force. Yet, if the former were repealed by the latter, the consequence to the appellant would be the same, because, but for the provision in the act of 1807, that after an appeal no further proceedings shall be had in the court below, the appellee in this case might have gone on to enforce his judgment at law, notwithstanding the appeal. Warden of St. Paul’s v. Morris, 9 Ves. 316: Hoyt v. Gelston, 13 Johns. 139.
If this were not the ease, the evil so forcibly depicted by Lord Eldon would ensue. If a petition to stay proceedings were refused, the party would only have to appeal from that order, thus carry his point, and produce interminable delay. The only protection which the court can extend to the complainant in a bill for injunction when the injunction is dissolved, is to require bond and security from the defendant in equity, to refund the amount, in'the event of a different decision upon final hearing. This is consistent with the practice of the English courts. Monkhouse v. Bedford, 17 Ves. 380; Way v. Foy, 18 Ves. 452. And it is in accordance, entirely, with the course pursued in some of the State courts of the Union.
In conclusion, we believe that no greater latitude in regard to appeals was intended to be given, by the act of congress referred to, than had previously been given by the act of 1807, and that no repeal of the act of 1807 was intended. We are, therefore, of opinion that no appeal lies from an interlocutory decree dissolving an injunction, and that this appeal was improvidently granted, and must be dismissed.
Dismissed accordingly. | [
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On motion of the prosecuting attorney, the court imposed a fine of thirty dollars on Radford Ellis, foreman of the grand jury, for intemperance, discharged him from the jury, and ordered execution to issue for the fine, and the court appointed Samuel McCall foreman of the grand jury in his place, and administered the proper oath to him, in presence of the grand jury. | [
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Opinion or the Court. — The only question I deem it necessary to decide on the present demurrer is, whether this suit is brought in the name of a person competent to maintain it. The declaration and writ described the plaintiff in the following manner: “ The governor of the State of Arkansas, who sues for the use of Pinckard & Arnold, &c.”
This suit is not brought in the individual name of the governor of the State of Arkansas, but in the manner above stated, by the style of office.
The administration bond upon which the action is founded was executed to John Pope, governor of the Territory of Arkansas, and his successors in office, in 1833, in accordance with the provisions of the 9th section of the Territorial Act of 1825. Ter. Dig. 50. The thirty-seventh section of the same act provides that “ the bond to be given by the administrator may be put in suit by the party injured in the name of the governor of the territory to the use of the party injured.” Ter. Dig. 64. And the fourth section of the schedule to the constitution of Arkansas declares that all bonds executed to the governor of the territory in his official capacity shall pass over to the governor of the State and his successors in office, for the use therein expressed, and may be sued for and recovered accordingly. Rev. Stat. 40.
In my judgment it is clear, that an action may be maintained if it is brought in the name of the governor of this State at the time it is commenced, and the only question is, Has this suit been so brought? The plain and obvious meaning of bringing a suit in the name of a public officer is, that it shall be in the name of the individual holding the office for the time being. He is a purely naked trustee for any party injured, — a mere conduit through which the law affords a remedy. The legal title is in the officer, and in his name alone can an action at law be maintained; and to that effect are adjudged cases. Brown v. Strode, 5 Cranch, 303; Wormley v. Wormley, 8 Wheaton, 421; Irvine v. Lowry, 14 Peters, 300; McNutt, Governor, v. Bland, 2 Howard, S. C. Rep. 9.
That this is the meaning of the legislature in using these terms is abundantly manifest from the fifteenth section of the Revised Statutes, under the title “ Abatement,” which provides that “ when an action is directed or authorized by law to be brought by or in the name of a public officer, his death or removal from office shall not abate the suit, if the cause of such suit survive to his successor; but the same may be continued in the name of such successor as plaintiff therein.” Rev. Stat. 59. Thus showing that the suit is to be brought in the individual name of the officer and not by his style of office.
This action is brought by using the style of office and not by using the name of the officer, and it can hardly be contended that it can be maintained in its present form. This may be said to be a mere technical objection as the plaintiff on the record cannot prevent the institution or prosecution of the suit, nor exercise any control over it, the real and only plaintiffs being the persons injured by a breach of the bond. To this it may be answered that the legal right to bring an action upon the bond is alone vested in the person exercising the functions of governor and his successors in office, to whom, in his individual name as governor, it is executed, and he alone or his successors in office, although naked trustees for others, can maintain an action on the bond. And this accords with the general rule of pleading, that the right of action at law is vested in the party having the strict legal title and interest. 1 Chitty, Pl. 3; 1 Bast, 497, 501; 7 Ib. 48 ; 5 Wend. 191; 9 Ib. 233.
I have seen no case establishing a different doctrine from that here laid down, and the cases, as far as my researches have extended, were all brought in the individual name of the officer, describing himself as holding the office. McNutt, Governor, v. Bland, 2 Howard, U. S. Rep. 9. Demurrer sustained.
Note. — The plaintiff obtained leave to amend; but subsequently dismissed the suit. | [
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Ringo, J.
On hearing the petition of James L. Dawson, praying a writ of habeas corpus and discharge from imprisonment, and upon hearing the argument of counsel thereupon, as well on behalf of the prisoner as of the United States, it appears by the showing of petitioner that he stands charged by indictment in the circuit court of the United States for the District of Arkansas with the crime of murder, committed in the Indian country, on a white person, on the 8th day of July, A. D. 1844, within the limits of that part of the Indian country then attached to that district; — That this indictment was in due form found by the grand-jury impanelled and sworn in the circuit court, at the April term thereof, A. d. 1845, and by the jury'returned and delivered into court as a true bill, on the 16th day of April, A. D. 1845, and then filed; That writs of capias founded thereupon, for his arrest to answer the United States on said charge have been from time to time by order of court issued thereout, and that the prosecution is still pending; That on and by virtue of one of the writs of capias, issued in due form, bearing date the 20th day of May, A. D. 1852, addressed to the marshal of the district of Texas, and returnable to said court at the April term thereof, 1853, petitioner was on the 8th day of November, 1852, arrested in the State and District of Texas, by a deputy of the marshal of the District of Texas, by whom he was thence conveyed to the District of Arkansas, and on the 24th day of November, turned over and delivered into the custody of- Luther Chase, “ marshal of the United States for the eastern district of Arkan sas, and by him committed to the jail of Pulaski county in the last-named district, where he has ever since remained and still is imprisoned, to answer to said indictment, and that no cause, other than said charge, indictment, capias, and proceedings exist, or ever did exist for his imprisonment and detention in custody. He therefore claims the benefit of the writ of habeas corpus, and that upon the hearing he may be discharged from imprisonment and custody, on the ground that this court is not possessed of jurisdiction of the crime, because the same if committed, was committed at a place not now within its jurisdiction, the place where said crime is charged to have been committed, being in that part of the Indian country, which by act of congress of March 3,1851, dividing the District of Arkansas, is attached to the western district of Arkansas for which a separate district court was by said act created and vested with all the jurisdiction and powers of a circuit court, without any reservation to said circuit court of jurisdiction of any crimes previously committed within the limits of said western district, or the Indian country attached thereto, or any transfer of any prosecution, or case, then pending in the circuit court, to any other court, and without any provision for the trial of such crimes in the district court for the western district. Wherefore he insists he is legally discharged from any prosecution for said crime, no court possessing the power to punish offences committed in the Indian country now attached to said western district committed prior to the creation thereof by the division of said Arkansas District, and is now illegally imprisoned and held in custody to answer the said indictment.
I am not satisfied that by the division of the district, and the attaching of the place and Indian country where the crime is charged to have been committed, to the western district of Arkansas, the jurisdiction of the circuit court over the crime, and the prosecution thereof was divested, or that this court notwithstanding does not possess ample jurisdiction thereof, and may lawfully proceed to try and punish in such case although the place where the crime was committed, if committed at all, is not now within, or attached, to the eastern district of Arkansas and within which the place, where by law the circuit court is required to hold its sessions, is situated, and inasmuch as the crime charged against the petitioner is a felony, and no sufficient ground for his' discharge from imprisonment is shown, admitting all of the facts to be true, as stated in his petition, (with which is exhibited a duly certified copy of the indictment and writ of capias, with the return thereto of the marshal above mentioned,) the prayer of the petition is denied.
At the April term, 1853, a motion was made by Dawson, to quash the indictment on the same ground set out in the petition, namely, that the act of 3d March, 1851, creating a court in the western district of Arkansas, had the effect of destroying the jurisdiction of this court over the case.
This motion was argued, before judges Daniel and Ringo, by Joseph Slilioell, district attorney for the United States ; and A. Pike, E. Cummins, and E. II. English for Dawson, and upon this motion the judges differed in opinion and certified two questions to the supreme court, which are stated in the decision of that court, hereafter introduced.
Dawson applied for bail, but the court on hearing the testimony refused his application.
The case in the supreme court was argued at the December term, 1853, Mr. Cushing, attorney-general for the United States; and Mr. Lawrence and Mr. Pike for Dawson; and will be found reported in 15 How. S. C. R. from 467 to 494.
Mr. Justice Nelson delivered the opinion of the supreme court.— The defendant was indicted in the circuit court of the United States for the District of Arkansas, for the alleged murder of one Seaborn Hill, in the Indian country west of the State of Arkansas.
The defendant is a white man and so was Hill, the deceased.
At a circuit court held at the city of Little Rock, on the 28th of April, 1853, the indictment came on for trial before the judges of that court; whereupon a motion was made on behalf of the defendant, to quash the indictment for want of jurisdiction of the court to try the same.
And upon the argument, the judges being divided in opinion, the following question was certified to this court for its decision : —
1. Did the act of Congress, entitled “ An Act to divide the District of Arkansas into two judicial districts,” approved the 3d of March, 1851, by which the western district of Arkansas was created, take away the power and jurisdiction of the circuit court of the United States for the eastern district of Arkansas, to try the indictment pending against the prisoner, James L. Dawson, a white man, found in the circuit court of the United States for the District of Arkansas, by a grand-jury impanelled on the 16th of April, 1845, for feloniously killing Sea-born Hill, a white man, on the 8th of July, 1844, in the country belonging to the Creek nation of Indians west of Arkansas, and which formed a part of the Indian country annexed to the judicial district of Arkansas by the act of congress, approved on the 17th of June, 1844, entitled “ An Act supplementary to the act entitled An Act to regulate trade and intercourse with the Indian tribes and to preserve peace on the frontiers,’ ” passed 30th June, 1834.
To state the question presented for our decision in a more simple form, it is this: At the time the State of Arkansas composed but one judicial district in which the federal courts were held, the Indian country lying west of the State was annexed to it for the trial of crimes committed therein by persons other than Indians. In this condition of the jurisdiction of these courts, the crime in question was committed in the Indian country, and the indictment found in the circuit court at the April term, 1845, while sitting at the city of Little Rock, the place of holding the court.
Subsequent to this the State was divided into two judicial districts, the one called the Eastern and the other the Western District of Arkansas. The Indian country was attached to, and has since belonged to the western district. The question presented for our decision is, whether or not the circuit court for the eastern district is competent to try this indictment, since the change in the arrangements of the districts.
By the 24th section of the act of congress, June 30,1834, (4 Stat. 733,) it was provided that all that part of the Indian country west of the Mississippi River, bounded north by the northern boundary of lands assigned to the Osage tribe of Indians, west by the Mexican possessions, south by Red River, and east by the west line of the Territory of Arkansas and State of Missouri, should be annexed to the territorial government of Arkansas for the sole purpose of carrying the several provisions of the act into effect. And the 25th section enacted, that so much of the laws of the United States as provides for the punishment of crimes committed within any place within the sole and exclusive jurisdiction of the United States, shall be in force in the Indian country, provided the same shall not extend to crimes committed by one Indian against the person or property of another Indian.
The act of congress of June 7th, 1844, (5 Stat. 680,) which was enacted after the Territory of Arkansas became a State, provided that the courts of the United States for the District of Arkansas should be vested with the same power and jurisdiction to punish crimes committed within the Indian country, designated in the 24th section of the act of 1834, and therein annexed to the Territory of Arkansas, as were vested in the courts of the United States for said territory before the same became a State; and that for the sole purpose of carrying the act into effect, all that Indian country theretofore annexed by said 24th section to the said territory, should be annexed to the State of Arkansas.
As we have already stated, the crime in question was committed in this Indian country, after it was annexed for the purposes stated, to the State of Arkansas; and the indictment was found in the circuit court of the United States for the District of Arkansas, which we have seen was coextensive with the State. And if no change had taken place in the arrangement of the district before the trial, there could of course have been no question as to the jurisdiction of the court.
But by the act of congress 3d March, 1851, it was provided that the counties of Benton and eight others enumerated, and all that part of the Indian country annexed to the State of Arkansas for the purposes stated, should constitute a new-judicial district, to be styled “ The Western District of Arkan sas,” and the residue of said State shall remain a judicial district, to be styled “ The Eastern District of Arkansas.”
The.2d section provides, that the judge of the district court shall hold two terms of his court in this western district in each year at Van Burén, the county seat in Crawford county. And the third confers upon him, in addition to the ordinary powers of a district court, jurisdiction within the district of all causes, civil or criminal, except appeals and writs of error which are cognizable before a circuit court of the United States. The fourth provides for the appointment of a district attorney and marshal for the district, and also for a clerk of the court.
It will be seen, on a careful perusal of this act, that it simply erects a new judicial district out of nine of the western counties in the State, together with the Indian country, and confers on the district judge, besides the jurisdiction already possessed, circuit court powers within the district, subject to the limitation as to appeals and writs of error; leaving the powers and jurisdiction of the circuit and district courts, as they existed in the remaining portion of the State, untouched. These remain and continue within the district after the change, the same as before; the only effect being to restrict the territory over which the jurisdiction extends. Hence no provision is made as to the tinie or place of holding the circuit or district courts in the district, or in respect to the officers of the courts, such as district attorney, marshal, or clerk, or for organizing the courts for the despatch of their business. These are all provided for under the old organization. 5 Stat. 50, 51, 176, 177, 178.
We do not, therefore, perceive any objection to the jurisdiction of these courts over cases pending at the time the change took place, civil and criminal, inasmuch as the erection of the new district was not intended to affect it in respect to such cases, nor has it in our judgment necessarily operated to deprive them of it.
It has been supposed that a provision in the sixth amendment of the constitution of the United States has a bearing upon this question, which provides that, “ in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law.” The argument is, that since the erection of the new district out of the nine western counties in the State, together with the Indian country, it is not competent for the circuit court, in view of this amendment, to try the prisoners within the remaining portion of the old district, inasmuch as that amendment requires that the district within which the offence is committed, and the trial to be had, shall be ascertained and fixed previous to the commission of the offence.
But it will be seen from the words of this amendment, that it applies only to the case of offences committed within the limits of a State; and whatever might be our conclusion, if this offence had been committed within the State of Arkansas, it is sufficient here to say, so far as it respects the objection,that the offence was committed out of its limits, and within the Indian country.
The language of the amendment is too particular and specific to leave any doubt about it. “ The accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district wherein the crime shall be committed, which district shall have been previously ascertained by law.”
The only regulation in the constitution, as it respects crimes committed out of the limits of a State, is to be found in the 3d art. sect. 2 of the constitution, as follows: — “ The trial of crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the State where the said crimes shall have been committed; but when not committed within any State, the trial shall be at such place or places as the congress may by law have directed.
Accordingly, in the first Crimes Act, passed April 30,1790, sect. 8 (1 Stat. 114), it was provided, that “the trial of crimes committed on the high seas, or in any place out of the jurisdiction of any particular State, shall be in the district where the offender is apprehended, or into which he may be first brought.”
A crime, therefore, committed against the laws of the United States, out of the limits of a State, is not local, but may be tried at such place as congress shall designate by law. This furnishes an answer to the argument against the jurisdiction of the court, as it respects venue, trial in the county, and jury from the vicinage, as well as in respect to the necessity of particular or fixed districts before the offence. These considerations have no application or bearing upon the question.
In this case, by the annexation of the Indian country to the State of Arkansas, in pursuance of the act of 1844 for the punishment of crimes committed in that country, the place of indictment and trial was in the circuit court of the United States for that State in which the indictment has been found and was pending in 1851, when the western district -was set off; and as that change did not affect the jurisdiction of the court as it respected pending cases, but remained the same after the alteration of the district as before, it follows that the trial of the indictment in this court will be at the place and in the court as prescribed by law, which is all that is required in the case of an offence committed out of the limits of a State.
We shall direct, therefore, an answer in the negative to be certified to the court below to the first question sent up for our decision, as we are of opinion the court possesses jurisdiction to hear and give judgment on the indictment.
The. second question sent up in the division of opinion is as follows: —
Can the district court of the United States for the western district of Arkansas take jurisdiction of the case aforesaid, so found in the year 1845, in said circuit court for the district of Arkansas ?
As our conclusion upon the first question supersedes the. necessity of passing upon the second, it will be unnecessary to examiire it, and shall therefore confine our answer and certificate to the court below to the first. | [
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Mr. Chief Justice Taney
delivered the opinion of the court. — This case has been sent here by the circuit court of the United States for the district of Arkansas, under a certificate of division of opinion between the justices of that court.
It appears by the record, that William S. Rogers, a white man, was indicted in the above-mentioned court for murder, charged to have been committed upon a certain Jacob Nicholson, also a white man, in the country now occupied and allotted by the laws of the United States to the Cherokee Indians.
The accused put in a special plea to the indictment, in which he avers that, having been a citizen of the United States, he, long before the offence charged is supposed to have been committed, voluntarily removed to the Cherokee country and made it his home, without any intention of returning to the United States; that he incorporated himself with the said tribe of Indians as one of them, and was so treated, recognized, and adopted by the said tribe, and the proper authorities thereof, and exercised all the rights and privileges of a Cherokee Indian in the said tribe, and was domiciled in their country; that by these acts he became a citizen of the Cherokee nation, and was, and still is, a Cherokee Indian, within the true intent and meaning of the act of congress in that behalf made and provided; that the said Jacob Nicholson had in like manner become a Cherokee Indian, and was such at the time of the commission of the said supposed crime, within the true intent and meaning of the act of congress in that behalf made and provided; and that, therefore, the court had no jurisdiction to cause the defendant to make a further or other answer to the said indictment. This is the substance of the plea, and to this plea the attorney for the United States demurred, setting down the causes of demurrer, which appear in the foregoing statement of the case.
Several questions have been propounded by the circuit court, which do not arise on the plea of the accused, and some of them we think cannot be material in the decision of the case, and need not, therefore, be answered by this court.
The country in which the crime is charged to have been committed is a part of the territory of the United States, and not within the limits of any particular State. It is true that it is occupied by the tribe of Cherokee Indians. But it has been assigned to them by the United States as a place of domicil for the tribe, and they hold and occupy it with the assent of the United States, and under their authority. The native tribes who were found on this continent at the time of its discovery have never been acknowledged or treated as independent nations by the European governments, nor regarded as the owners of the territories they respectively occupied. On the contrary, the whole continent was divided and parcelled out, and granted by the governments of Europe as if it had been vacant and unoccupied land, and the Indians continually held to be, and treated as, subject to their dominion and control. It would be useless at this day to inquire whether the principle thus adopted is just or not; or to speak of the manner in which the power claimed was in many instances exercised. It is due to the United States, however, to say, that while they have maintained the doctrines upon this subject,- which had been previously established by other nations, and insisted upon the same powers and dominion within their territory, yet from the very moment the general government came into existence to this time, it has exercised its power over this unfortunate race in the spirit of humanity and justice, and has endeavored by every means in its power to enlighten their minds and increase their comforts, and to save them, if possible, from the consequences of their own vices. But had it been otherwise, and were the right and the propriety of exercising this power now-open to question, yet it is a question for the lawmaking and political department of the government, and not for the judicial. It is our duty to expound and execute the law as we find it, and we think it too firmly and clearly established to admit of dis pute, that the Indian tribes residing within the territorial limits of the United States, are subject to their authority, and where the country occupied by them is not within the limits of one of the United States, congress may, by law, punish any offence committed there, no matter whether the offender be a white man or an Indian. Consequently, the fact that Rogers had become a member of the tribe, Cherokees, is no objection to the jurisdiction of the court and no defence to the indictment, provided the case is embraced by the provisions of the act of congress of the 30th June, 1834, entitled, “ An Act to regulate trade and intercourse with the Indian tribes, and to preserve the peace of the frontiers.”
By the 25th section of that act, the prisoner, if found guilty; is undoubtedly liable to punishment, unless he comes within the exception contained in the proviso, which is, that the provisions of that section “ shall not extend to crimes committed by one Indian against the person or property of another Indian.” And we think it very clear, that a white man, who, at mature age, is adopted in an Indian tribe, does not thereby become an Indian, and was not intended to be embraced in the exception above mentioned. '
He may, by such adoption, become entitled to certain privileges in the tribe, and make himself amenable to their laws and usages. Yet he is not an Indian; and the exception is confined to those who, by the usages and customs of the Indians, are regarded as belonging to their race. It does not speak of members of a tribe, but of the race generally, — of the family of Indians; and it intended to leave them both, as regarded their own tribe, and other tribes also, to be governed by Indian usages and customs. And it would, perhaps, be found difficult to preserve peace among them if white men of every description might, at pleasure, settle among them, and, by procuring an adoption by one of the tribes, throw off all responsibility to the laws of the United States, and claim to be treated by the government and its officers as if they were Indians born. It can hardly be supposed that congress intended to grant such exemptions, especially to men of that class who are most likely to become Indians by adoption, and who will generally be found the most mischievous and dangerous inhabitants of the Indian country.
It may have been supposed that the treaty of New Echota, made with the Cherokees in 1835, ought to have some influence upon the construction of this act of congress, and extend the exception to all the adopted members of the tribe. But there is nothing in the treaty in conflict with the construction we have given to the law. The fifth article of the treaty stipulates, it is true, that the United States will secure to the Cherokee nation the right, by their national councils, to make and carry into effect such laws as they may deem necessary for the government and protection of the persons and property within their own country, belonging to their people, or such persons as have connected themselves with them. But a proviso immediately follows, that such laws shall not be inconsistent with the constitution of the United States, and such acts of congress as had been or might be passed regulating trade and intercourse with the Indians. Now the act of congress under which the prisoner is indicted, had been passed but a few months before, and this proviso in the treaty shows that the stipulation above mentioned was not intended or understood to alter in any manner its provisions, or affect its construction. Whatever obligations the prisoner may have taken upon himself by becoming a Cherokee by adoption, his responsibility to the laws of the United States remained unchanged and undiminished. He was still a white man of the white race, and therefore not within the exception in the act of congress.
We are, therefore, of opinion, that the matters stated in the plea of the accused do not constitute a valid objection to the jurisdiction of the court, and that, if he is found guilty upon the indictment, he is liable to the punishment provided by the act of congress before referred to, and is not within the exception in relation to Indians.
And we shall direct this opinion to be certified to the circuit court as the answer to the several questions stated in the certificate of division. We abstain from giving a specific answer to each question, because, as we have already said, some of them do not appear to arise out of the case, and upon questions of that description, we deem it most advisable not to express an opinion.
Rogers was never tried, having been afterwards drowned in the Arkansas River, in attempting to make his escape. | [
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Opinion oe the Court. — The only question made in this cause is, whether the court below erred in dismissing it on the defendant’s motion. The suit was commenced in the circuit court of Independence county in December, 1833, and the process made returnable to the ensuing May term, at which time the defendant appeared by his attorney and plead to the action, and whereupon the cause was continued until the November term, 1834, when the judgment of dismissal was given. At the time the suit was commenced, the circuit court of Independence county was required to be held on the second Mondays of May and November. Acts of 1829, p. 22. By an act of the legislature approved November 5, 1833, the time was changed to the third Mondays of May and November, but this act did not take effect until the first of November, 1834. In changing the time of holding the circuit courts, it seems that the legislature omitted to insert a provision, that all causes then pending should be returnable, have day, and be decided, as though the change had not been made.
The omission, upon principles of either law or reason, could not, as we think, amount to a discontinuance of any matter pending in the court, the time of holding which was changed. If the court had ceased to exist by the act of the legislature, and a new jurisdiction had been created, then such a provision would doubtless have been necessary. But this is not the case, and it will be found upon examination that no such clause has ever been inserted in any act of the legislature, where the time only of holding the court has been changed.
Judgment reversed. | [
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Mr. Justice Grier
delivered the opinion of the court. — As some doubts were entertained and have been expressed by some members of the court, as to its jurisdiction in this case, it will be necessary to notice that subject before proceeding to examine the merits of the controversy. It had its origin in the State court of Dallas county, Arkansas, sitting in chancery. It is a proceeding under a statute of Arkansas, prescribing a special remedy for the confirmation of sales of land by a sheriff or other public officer. Its object is to quiet the title. The purchaser at such sales is authorized to institute, proceedings by a public notice in some newspaper, describing the land, stating the authority under which it was sold, and “ calling on all persons who can set up any right to the lands so purchased, in consequence of any informality, or any irregularity or illegality connected with the sale, to show cause why the sale so made should not be confirmed.”
In case no one appears to contest the regularity of the sale, the court is required to confirm it, on. finding certain facts to exist. But if opposition be made, and it should appear that the sale was made “ contrary to law,” it became the duty of the court to annul it. The judgment or decree in favor of the grantee in the deed operates “ as a complete bar against any and all persons who may thereafter claim such land, in consequence of any informality or illegality in the proceedings.”
It is a very great evil in any community to have titles to land insecure and uncertain; and especially in new States, where its result is to retard the settlement' and improvement of their vacant lands. Where such lands have been sold for taxes, there is a cloud on the title of both claimants, which deters the settler from purchasing from either. A prudent man will not purchase a lawsuit, or risk the loss of his money and labor upon a litigious title. The act now under consideration was intended to remedy this evil. It is in substance a bill of peace. The jurisdiction of the court over the controversy is founded on the presence of the property; and, like a proceeding in rem, it becomes conclusive against the absent claimant, as well as the present contestant. As was said by the court in Clark v. Smith, 13 Peters, 203, with regard to a similar law of Kentucky: “A State has an undoubted power to regulate and protect individual rights to her soil, and declare what shall form a cloud over titles ; and having so declared, the courts of the United States, by removing such clouds, are only applying an old practice to a new equity created by the legislature, having its origin in the peculiar condition of the country. The State legislatures have no authority to prescribe forms and modes of proceeding to the courts of the United States ; yet having created a right, and at the same time prescribed the remedy to enforce it, if the remedy prescribed be substantially consistent with the ordinary modes of proceeding on the chancery side of the federal courts, no reason exists why it should not be pursued in the same form as in the State court.”
In the case before us, the proceeding, though special in its form, is in its nature but the application of a well-known chancery remedy; it acts upon the land, and may be conclusive as to the title of a citizen of another State. He is therefore entitled to have his suit tried in this court, under the same condition as in other suits or controversies.
. In the petition to remove this case from the State court, there was not a proper averment as to the citizenship of the plaintiff’ in error; it alleged that Parker “resided” in Tennessee, and "White in Maryland. “Citizenship” and “residence” are not synonymous terms; but as the record was afterwards so amended as to show conclusively the citizenship of the parties, the court below had, and this court have, undoubted jurisdiction of the case.
What we have already stated sufficiently shows the nature of the present controversy. The decree appealed from “ adjudges the absolute .title to the land to pass and be confirmed to and vest in said William Overman, his heirs, &c., free, clear, and discharged from the claim of said defendants, and all persons whatsoever; and that the said sale thereof for taxes so made by the sheriff of Dallas county to said Overman is hereby confirmed in all things, and said defendants perpetually enjoined from setting up or asserting any claim thereto,” &c.
The plaintiffs in error allege that this decree is erroneous, and should have been for defendants below.
Much of the argument of the learned counsel in this case was wasted on the effect to be attributed to the recitals in the deed, and the decision of this court in the case of Pillow v. Roberts, 13 How. 472.
That was an action of ejectment., in which this court decided that under the 96th section of the revenue law, the sheriff’s or collector’s deed was made primd facie evidence of the regularity of the previous proceedings. The effect of that section of the act, and of the decision in that case, was to cast the burden of proof of irregularity in the proceedings on the party contesting the validity of the deed; but as the present controversy is for the purpose of giving an opportunity “ to all persons who can set up any right or title to the land so purchased, in consequence of any informality or illegality connected with such sale,” to contest its validity, it would be absurd to make the deed, whose validity is in question, conclusive evidence of that fact. Consequently, the statute enacts, that in this proceeding, “ the deed shall be taken and considered by the court as sufficient evidence of the authority under which said sale was made, the description of the land, and the price at which it was purchased. The deed is to be received as primd facie evidence of these three facts, and casts the burden of proof as to them on the defendant. The term “sufficient” is evidently used in the statute as a synonym for primd facie and not for “ conclusive.”
In judicial sales under the process of a court of general jurisdiction, where the owner of the property is a party to the proceedings, and has an opportunity of contesting their regularity at every step, such objections cannot be heard to invalidate or annul the deed in a collateral suit. But one who claims title to the property of another under summary proceedings where a special power has been executed, as in case of lands sold for taxes, is bound to show every fact necessary to give jurisdiction and authority to the officer, and a strict compliance with all things required by the statute.
The principal objection to the regularity of the sale in this case, and the only one necessary to be noticed, is, that the land was not legally assessed. A legal assessment is the foundation of the authority to sell; and if this objection be sustained, it is fatal to the deed.
In order to qualify the sheriff to fulfil the duties of assessor, the statute requires, that “ on or before the 10th day of January, in each year, the sheriff of each county shall make and file in the office of the clerk of the county an affidavit in the following form,” &c.: “ And if any sheriff shall neglect to file such affidavit within the time prescribed in the preceding section, his office shall be deemed vacant, and it shall be the duty of the clerk of the county court, without delay, to notify the governor of such vacancy,” &c.
The statute requires, also, “ that on or before the 25th day of March, in each year, the assessor shall file in the office of the clerk of the county the original assessment, and immediately thereafter give notice that he has filed it,” &c. This notice is required, that the owner may appeal to the county court “ at the next term after the 25th day of March, and have his assessment corrected if it be incorrect.” If the assessor shall fail to file his assessment within the time specified by this act, he is deemed guilty of a misdemeanor, and subjected to a fine of five hundred dollars.
These severe inflictions upon the officer for his neglect to comply with the exigencies of the act, indicate clearly the importance attached to his compliance in the view of the legislature, and that a neglect of them would vitiate any subsequent proceedings, and put it out of the power of the sheriff to enforce the collection of taxes by a sale of the property.
The record shows that Peyton S. Bethel, the then sheriff of the county of Dallas, did not file his oath as assessor on or before the 10th of January, as required by law. He did file an oath on the 15th of March; but this was not a compliance with the law, and conferred no power on him to act as assessor. On the contrary, by his neglect to comply with the law, his office of sheriff became ipso facto vacated, and any assessment made by him in that year was void, and could not be the foundation for a legal sale. The neglect also to file his assessment and give immediate notice on the 25th of March, so' that the purchaser might have his appeal at the next county court, was an irregularity which would have avoided the sale even if the assessment had been legally made.
The statute makes the time within which these acts were to be performed material; and a strict and exact compliance with its requirements is a condition precedent to the vesting of any authority in the officer to sell.
We are of opinion, therefore, that the sale of the land of the- appellants was “contrary to law;” and that the deed from Edward M. Harris, sheriff and collector of Dallas county, to William Overman, set forth and described in the pleadings and exhibits of this case, is void, and should be annulled. | [
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Opinion oe the Court. — This is a writ of error to the circuit court of Pulaski, to reverse a judgment in an action of debt, wherein Sarah Chandler was plaintiff, and Richard C. Byrd and John H. Cocke, defendants.
The declaration alleges “ that Richard C. Byrd, John H. Cocke, and A. W. Cotton, (now deceased,) by their certain writing obligatory, signed with their own proper hands, and sealed with seals, a certified copy of which writing obligatory is now here shown to this court, the original on file among and belonging to the records of the superior court for the Territory of Arkansas, and cannot be produced to this court,” etc. The defendants filed a general demurrer to the plaintiff’s declaration, which was sustained, and final judgment rendered against the plaintiff for costs.
Two questions present themselves for the consideration of this court; first, whether the action was correctly brought against R. C. Byrd and John H. Cocke, there having been a third obligor to the instrument upon which the suit is founded.
The supreme court of the United States in the case of Minor v. The Mechanics Bank of Alexandria, 1 Peters, 46, has settled this point. That court says, that on a joint and several bond the plaintiff may sue one or all of the obligors, but in strictness of law no intermediate number; he must sue all or one. But if an error of this kind is not taken advantage of by plea in abatement, it is waived by pleading to the merits. “ The reason is, that the obligation is still the deed of all the obligors who are sued, though not solely their deed, and therefore it is no variance in point of law between the deed declared on and that proved.”
The same doctrine is clearly illustrated in the case of Cabell v. Vaughan, 1 Saund. Rep. 291, note 4. The act of 1816, (Geyer’s Digest, 241,) it is conceived, does not change the common law in this particular. The object of that act was chiefly to establish the liability of the representatives of deceased joint obligors.
The second question is, whether there is a proper profert of the instrument upon which the action is founded. Admitting the declaration in this respect to be defective according to the rules of the common law, it is an objection of which the party could only avail himself by special demurrer, and special demurrer having been abolished by act of the last legislature, the objection taken to this declaration in this respect is no longer tenable. Judgment reversed. | [
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Trimble, J.
— The appellants brought a suit for forcible entry and detainer before two justices of the peace. On the inquisition, the jury found for the defendant, and the plaintiffs sued out a writ of certiorari; and at the November term of the Crawford circuit court, in 1827, the proceedings were set aside for irregularity, and a trial de novo awarded on the merits. At the May term of the circuit court, in 1828, the defendant moved the court to dismiss the suit, because the court had no jurisdiction to try it. This motion was sustained, and to this decision the plaintiffs ex■cepted, and-filed their bill of exceptions. The question now before this court is, Ought the suit to have been dismissed ? The court at the May term had no power to set aside the order for a trial de novo made at a previous term; for admitting such order to have been erroneous, yet it required the power of an appellate court to correct it, after the term had passed. But the case, having been brought before the circuit court, and the inquisition set aside, ought to have been tried on its merits, and finally disposed of there. It is therefore my opinion, that the cause ought to be remanded to that court to be tried on its merits.
Eskridge, J.
— This is an appeal from the Crawford circuit court. The appellants brought a writ of forcible entry and detainer before two justices of the peace, and the finding of the jury upon the inquisition being for the defendant, the plaintiffs sued out from the Crawford circuit court, at the November term, 1827, their writ of certiorari, according to the statute. The proceedings before the justices were set aside for irregularity, and a trial de novo ordered. At the May term, 1828, the defendant moved to set aside the certiorari, on the ground that the court had not jurisdiction; which motion was sustained, and it is from this decision that the plaintiffs have appealed.
The only question to be determined is, whether the circuit court, having set aside the-proceedings in a case of forcible entry and detainer, brought there by certiorari, could rightfully order a trial de novo. My opinion is, that it could not. The power of the circuit court ceases the moment it has set aside the proceedings for irregularity. The statute giving the remedy of a writ of forcible entry and detainer is in derogation of the common law, is special and peculiar in its nature, and must, according to well-known rules, be strictly pursued in all its provisions. The sixth section of the act regulating the proceedings in writs of forcible entry and detainer, (Geyer’s Digest, 204,) does not give- the circuit court the power to try the case de novo. It only empowers- that court to set aside the proceedings for irregularity, and nothing more. To authorize the circuit court to try the case de novo, that power must be expressly delegated by the statute, and is not to be assumed by implication or construction. The fact that the circuit court set aside the proceedings for irregularity and ordered a trial on the merits at one term, and at a subsequent one dismissed the case, cannot be considered as irregular, because the court is always open to dismiss for want of jurisdiction.
This court being equally divided, however, in opinion, the judgment of the circuit court stands affirmed. | [
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Cross, J.,
delivered the opinion of the Court. — The record in this case shows that the plaintiff in error brought an action of trespass on the case against the defendant, in the Conway circuit court, and in his declaration alleged “ that the said plaintiff and one Alexander Rogers, were indebted to Daniel Gil■more in a large sum of money, namely, in the amount of fifty-five dollars, upon which said Gilmore had brought suit and obtained judgment, and sued out execution against the plaintiff and the said Rogers, and the plaintiff avers that he and Rogers had, in the county of Conway, sufficient goods and chattels to have satisfied the execution, and the plaintiff avers that the de feudant being an evil disposed person, fond of encouraging litigation and fomenting strife, and wishing to harass, impoverish, and distress the plaintiff, did, on the first day of October, 1834, at the county of Conway, and within the jurisdiction of this court, maliciously persuade and procure the said Daniel Gilmore, by offering him to pay all costs and charges, and to see his debt made secure, to have the plaintiff’s body taken in execution ; and by reason of the defendant’s procurements by his several offers and promises as aforesaid made, the plaintiff’s body was taken in execution.” It also appears that the defendant filed a demurrer to the declaration, which was sustained by the court. The writ of error is prosecuted to reverse the judgment sustaining the demurrer.
A mere glance at the declaration will show that it has been drawn by an extremely careless pleader. The object of the action doubtless was, to charge the defendant for a maintenance, which is defined to be an officious intermeddling in a suit depending in a court, with which the person so intermeddling has nothing to do, by assisting- the plaintiff or defendant in the prosecution of such suit. Coke, Lit. 358; 2 Inst. 213. The court is not designated in which the suit was pending, nor is the time or place alleged when and where the execution issued or into whose hands it came. The allegation is in relation to the maintenance, that the defendant offered Gilmore to pay costs and charges, and to see that his debt was secured. Between a mere offer to assist and assistance, there is certainly a material difference, for without the latter, the maintenance is not committed at all.
So far as any thing can be collected on the subject from the declaration, it seems that at the time the offer was made to pay costs and see the debt secured, an execution was rightfully in the hands of an officer of some kind, and the plaintiff and Rogers had a sufficiency of property in the county to satisfy it. If so, the defendant’s offers were made in relation to a matter over which neither he nor Gilmore had any control, as the officer was legally bound in the first place, to levy on and dispose of the property in satisfaction of the writ, notwithstanding the plain tiff in execution might have instructed him to arrest the body of the defendant.
That an action lies in this country for maintenance, we entertain but little doubt. Yet it certainly would be necessary, in order to sustain such an action, to allege not only the pendency of a suit, but designate the particular court in which it was depending, together with time and circumstances, none of which requisites exist in the case before us. Indeed, there is scarcely a single requisite stated necessary to constitute a maintenance, and we have seldom had occasion to examine a declaration in which there was so frail a cause of action set forth.
Judgment affirmed. | [
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Opinion oe the Court. — The only question to be decided, is as to the mode of calculating interest.
We are of opinion that the correct mode of easting interest when partial payments have been made, is to apply the payment in the first place to the discharge of the interest then due, and if the payment exceeds the interest, the surplus goes towards discharging the principal, and the subsequent interest is to be computed on the balance of principal unpaid. If the payment be less than the interest, the surplus interest must not be taken to augment the principal, but interest continues on the principal until the period when the payments taken together exceed the interest due, and then the surplus is to be applied towards discharging the principal, and the interest is to be computed on the balance of principal as above stated. 1 Dallas, 124; 1 Halsted, 408; 2 Wash. C. C. R. 168; 5 Cowen, 331. Judgment for plaintiff. | [
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Clayton, J.,
delivered the opinion of the Court. — The original bill in this case was filed by William Lenox and wife, both now deceased, to divest the legal title of certain property therein mentioned out of the defendants, the Hamiltons, then four in number, to have the bill of sale under which they claimed declared void, and to have the title vested in, and the property decreed to, the complainants. The defendants, the Hamiltons, being still infants, filed a cross-bill by their guardian ad litem for the discovery of certain facts necessary to their defence of the original bill, and prayed that Lenox may be compelled to give bond not to remove the property, and to have the same forthcoming to abide the decree. The answer to the cross-bill states the death of Mrs. Lenox and of two of the heirs of Hamilton, and sets up a title to the property in question upon two grounds distinct from those stated in the original bill. To determine upon this motion for the appointment of a receiver, it is not necessary to consider the title to the property, or-to discuss the merits of the cause. The material affidavit upon which this motion is made, states the administrators of William Lenox, deceased, have failed to inventory the estate and personal property, including the negroes mentioned in the original and cross-bill, in this case, as the property of William,Lenox, deceased, and that as the representatives of said William Lenox, deceased, they do not hold themselves responsible for the property mentioned in said bills. The application for a receiver is addressed to the sound discretion of the court, regulated by legal principles, and is exercised by the courts upon many occasions with great benefit to the parties. It is particularly serviceable when there is danger that the subject-matter of controversy may be wasted and destroyed, impaired, injured, or removed during the progress of the suit. The object is to secure the fund for the party found upon final hearing to be entitled, and to produce as little prejudice as possible to any of those concerned. When one party has a clear right to the possession of property, and when the dispute is as to the title only, the court would very reluctantly disturb that possession. But when the property is exposed to danger and to loss, and the party in possession has not a clear legal right to the possession, it is the duty of the court to interpose and to have it secured. Who is legally entitled to the possession of the property in this case ? It will be borne in mind at the time of filing the original bill, it appears from the papers in this cause, that the complainants, Lenox and wife and the infant children of Hamilton, the defendants here, resided together, the possession was joint, and the law would cast the actual possession upon the legal owners of the property. Who were at that time the legal owners ? The infant children of Hamilton claiming under Notrebe’s deed of conveyance. The very object of the original bill was to divest them of the legal title, to have the deed of Notrebe rescinded, and the property decreed to the complainants. The bill was filed in right of Mrs. Lenox, who had been the wife of Hamilton, and who was the mother of the defendants. In December, 1828, Mrs. Lenox and two of the defendants died, and the suit since has been prosecuted against the remaining defendants without any administration upon her estate. After the death of the mother, the two surviving defendants in February, 1829, ceased to reside with William Lenox, and he kept possession of the property. He had not the legal right to do so. The law cast the right of possession with the legal and apparent right of property, and it was his duty to have given up the possession to them. Having failed to do so, he became a trustee as to the legal estate for them, for a court of equity converts any one who intermeddles with an infant’s property into a trustee for such infant. The answer to the cross-bill states that in January, 1831, the complainant Lenox purchased an outstanding legal title to the same property, and claims to hold it by virtue of this purchase. It is believed that upon well-settled principles this was a breach of trust upon his part, and that an implied trustee cannot purchase an outstanding legal title and claim the trust property under it, at least until he restores possession to the party for whose use as trustee he holds. At the time of the death of Lenox, he held possession in this manner, and so confident were his administrators that he had not either the right of property, or the right of possession, that they refused to return the property in their inventory as his, and state expressly, according to the affidavit, that they do not hold themselves responsible for it, as his administrators. If they are not responsible for it as his administrators, they are not, in the present aspect of the cause, responsible for it at all. They are only before the court in their representative character, and if it should ever become necessary to proceed against them individually, they must be before the court ^in their individual character. If they do not hold the property as administrators, they have no right to the possession, so far as this court can see from the facts before it. They may waste and destroy it, and at the end of this suit the party declared entitled may have to institute new proceedings against new parties, and travel the weary round of a chancery cause a second time. The appointment of a receiver will prevent this, and will have no other effect than to secure property .which seems to be cast upon the world without any legal protector. The only circumstance which has interposed the slightest obstacle to our coming to the conclusion to appoint a receiver in this cause, grows out of the bond executed by William Lenox, in his lifetime, to have the property in question forthcoming to abide the final decree in this cause. The words in the condition of the bond are these: “ now if the above bound William Lenox, shall keep said negroes and property safe, and not remove them beyond the jurisdiction of this territory, until the final hearing of this cause, and to abide the final order and decree of the court in this suit, then this obligation to be4 void.” This obligation is merely personal. It rests upon and binds William Lenox alone. His securities in the bond are not bound for the acts of any other person. If he committed no breach, they would not be bound in our opinion for a breach committed by any third person after his death. Rut if we are mistaken in this opinion, enough doubt hangs over the matter to authorize the court to interpose and place the property beyond doubt, to render the parties safe instead of leaving them to uncertain controversy in a court of law. We think, therefore, the motion ought to be allowed, and a receiver appointed.
Order. —It is hereby directed and ordered that Benjamin Desha be appointed receiver in this cause, upon his entering into bond with Frederick Notrebe, William Cummins, Samuel J. Hall, and Emzy Wilson, as his securities in the penal sum of $10,000, payable to William Field, the clerk of this court, and his successors in the office of clerk of this court, for the use and benefit of such person or persons as this court may finally decree to be entitled to this property, and upon his so giving bond and security within sixty days from this time, his power and authority and duty as receiver in this cause shall be full and complete; and it shall be the duty of said Lenox and Scull to deliver up all the property in the proceedings mentioned, together with the issue and increase of the slaves and stock or such part thereof as is in their possession, to the said Desha, upon his producing to them a certified copy of the order. | [
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Opinion oe the Court.— McCoy, as administrator of Car-lisle, made his motion before the county court of Conway county, for an allowance against Lemons, administrator of McElmurry. After a hearing of the parties, the county court sustained his motion, and allowed him five hundred dollars, with interest at the rate of six per cent, per annum, from the 29th day of October, 1825, from which Lemons appealed to the circuit court; but the appeal was dismissed on the motion of Lemons, on the ground that ten days’ notice had not been given to him, according to the directions of the statute of 1825, and from which latter decision McCoy has appealed to this court.
It appears from an examination of the proceedings before the county court, that the defendant was present at the trial in that court, which, in our opinion, superseded the necessity of notice. The notice prescribed by the act of 1825, can only be considered in the light of process to bring the party into court, and of course his voluntary appearance supersedes the necessity of it. Acts, 1825, p. 66. There is no principle of law better established than that the appearance of the defendant cures all defects and irregularities in process. It cures the want of service. Caldwell v. Martin, 2 Stra. 1072; Wood v. Lide, 4 Cranch, 180; Knox v. Summers, 3 Cranch, 498. Judgment reversed. | [
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Opinion or the Court. —The j udieial act of 1789 (1 Story, L. U. S. sec. 14, p. 59) authorizes all the courts of the United States to issue writs of scire facias, habeas corpus, and all other writs not specially provided for by statute which may be necessary for the exercise of their respective jurisdictions and agreeable to the principles and usages of law. And it is expressly provided by the same act, that either of the justices of the supreme court, as well as judges of the district courts, shall have power to grant writs of habeas corpus for the purpose of inquiring into the cause of commitment, with the .restriction only that writs of habeas corpus shall in no case extend to prisoners in jail, unless where they are in custody under or by color of the authority of the United States, or are committed for trial before some court of the same, or are necessary to be brought into court to testify.
In the case of Tobias Watkins, 3 Peters, 201, it was said by Chief Justice Marshall, in delivering the opinion of the.court, that “ no law of the United States prescribes the cases in which the writ shall be issued, nor the power of the court over the party brought up by it.” The term is used in the constitution as one which was well understood, and the judicial act authorizes this court and all the courts of the United States, and the judges thereof, to issue the writ “ for the purpose of inquiring into the cause of commitment.” This general reference to a power which we are required to exercise without any precise definition of it, imposes on us the necessity of making some inquiries into its use according to that law which is in a considerable degree incorporated into our own.
•The writ of habeas corpus is a great prerogative writ known to the common law, the great object of which is the liberation of those who may be imprisoned without sufficient cause. It is in the nature of a writ of error to examine the legality of the commitment. 1 Chitty, C. L. 180. No doubt exists respecting the power, and the question is, whether such a case is presented as ought to call for its exercise.
The act of congress fixing the military peace establishment of the United States of March 16, 1802, provides “ that no person under the age of twenty-one years, shall be enlisted by any officer, or held in the service of the United States, without the consent of his parent or guardian or master, first had and obtained, if any he have,” and the act then imposes a pecuniary penalty on the enlisting officer. 2 Story, Laws U. S. sec. 11, p. 832.
Such an enlistment being illegal, a minor is entitled to be discharged on the application of his father or guardian or next friend, on a showing satisfactory to the court or judge. It is an illegal confinement of his person, and he may be released on habeas corpus without any application having been first made to the war, or any other, department of the government for his discharge. United States v. Anderson, Cooke, Rep. 143; Matter of Ferguson, 9 Johns. 239; Matter of Carlton, 9 Cowen, 471; Commonwealth v. Cushing, 11 Mass. 67 ; Commonwealth v. Harrison, 11 Ib. 63; Matter of Roberts, 2 Hall’s Law Journal, 192; Husted’s case, 1 Johns. Cas. 136.
In some of these cases the power of State courts and judges over the subject is denied, but in all of them the jurisdiction of the courts and judges of the United States to interfere in a case like this, is held to be complete and unquestionable, and I express no decided opinion as to whether the State courts have or have not jurisdiction, although the inclination of my mind would lead me to adopt the negative of that proposition, for the reasons so strongly urged by Chief Justice Kent in Ferguson's case, 9 Johns. 239, backed by considerations peculiar to the jurisprudence of the courts of the United States, and which would prevent their interference with State authority on the one hand, and should prevent a like interference on the part of the State tribunals with the authority of the United States on the other.
Whenever a case is presented embraced within the provision alluded to, no difficulty would be felt by me in issuing the writ, since the power to do it is clear, and there is nothing in the subject to prevent it or render it improper. The military is subordinate to the civil authority, and the privilege of the writ of habeas corpus cannot be suspended unless when, in cases of rebellion or invasion, the public safety may require it. Const, art. 2, sec. 9. It is only in that event the writ cannot be issued. There is no other restriction. In the Matter of Stacy, 10 Johns. 333, Kent, Ch. J., said: “It is the indispensable duty of this court, and one to which every inferior consideration must be sacrificed, to act as a faithful guardian of the personal liberty of the citizen, and to give ready and effectual aid to the means provided by law for its security. Nor can we hesitate in promptly enforcing a due return to the writ when we recollect that in this country, the law knows no superior; and that in England their courts have taught us, by a series of instructive examples, to exact the strictest obedience to whatever extent the .persons to whom the writ is directed maybe clothed with power or exalted in rank.” And accordingly in that case the court did not hesitate to award an attachment for contempt against Morgan Lewis, a general of division in the army of the United States, (August, 1813,) commanding at Sackett’s Harbor, for a refusal to obey the writ.
In the sentiments expressed by the chief justice on that occasion, I fully concur, and will add that there is no officer, civil or military, so exalted, except the president of the United States, as not to be subject to this writ, and none so low as to escape its operation. The officer and the citizen must alike yield to its mandate, ' The president himself would not be exempt because he is above the law or because he can do no wrong, but because he cannot be held responsible except through the medium of impeachment, and to allow the writ to go to him, would involve the necessity of punishing him for a refusal to obey it, and such a power does not belong to the judiciary. The power to issue the writ in this case and compel obedience to it, is clear; but it is to be observed that the writ of habeas corpus does not issue as a matter of course' on application, although it is frequently called a writ of right, and is so in the enlarged sense of that term. But where the defect or illegality complained of does not appear, an affidavit should be made stating the circumstances under which the person imprisoned or detained is entitled to the benefit of the writ. 1 Chitty, C. L. 124; Hand, Prac. 519; Exparte Bruce, 8 East, 27; Hottentot Venus, 13 East, 195. In the English courts affidavits have been uniformly required, as an examination of the cases will show. And it may not be improper to remark, that as interferences with the military authority for any cause whatever are regarded with jealousy, a strong case ought to be made out, before a court or judge of the United States would send the writ to a military officer. Reasonable grounds must exist for awarding the writ, because if it should issue upon a mere unsupported application, a felon, under sentence of death, or undergoing imprisonment in a prison, or a person confined for insanity, or other prudential reasons, might obtain a temporary enlargement, although certain to be remanded. And therefore, Sir Edward Coke, when chief justice, did not scruple to deny a habeas corpus to one confined by the court of admiralty for piracy, there appearing on his own showing, sufficient grounds to confine him. 3 Bulstrode, 27 ; 2 Roll. Rep. 138 ; 3 Bl. Com. 132. And so the court of King’s Bench in the case of Schiever, 2 Burr. 766, denied the writ, saying, that upon his own showing he was clearly a prisoner of war and lawfully detained as such. It must sufficiently appear that the party is imprisoned or detained against his will, without authority of law, and is consequently entitled to be relieved by the efficacy of this writ. It is the imperative duty of every district judge of the United States, when a proper case is presented either in court or at chambers, to promptly interfere in behalf of the injured party, and for one it will always be my pleasure to do so, because by the constitution itself it is plainly enjoined upon every officer of the government, civil and military, judicial, executive, and legislative, to guard and protect the personal liberty of the citizen, and not sanction any invasion of it without due process of law.
What would be sufficient grounds to issue a writ of habeas corpas., must, to a great extent, depend on each particular case; and while the court or judge, so far from throwing obstacles in the way, would undoubtedly afford every reasonable facility to an injured person to obtain the benefit of this great and salutary remedy, yet too willing an ear should not be lent to these applications, backed as they generally are by our sympathies, lest a doubtful wrong or fanciful injury should be redressed at the expense of public justice. And moreover as these applications are hurtful to the military service, productive of serious inconvenience, not unfrequently attended with great expense, besides encouraging an idea among soldiers, ignorant of law, that a discharge may easily be obtained by appealing to the judicial authorities of the United States ; it would seem to follow as a necessary consequence, that a strong case should be made out, and all the requisites of the law at least substantially complied with, before this extraordinary power can be successfully invoked. The proof of the facts alleged in this application, before a court or judge of the United States, would certainly entitle George B. Keeler to be discharged. But in the exercise of a sound discretion it would not be proper, as it seems to me, to award a writ of habeas corpas 'in the case at present, because the application must be treated as unsupported by affidavit or oath, since judicial notice cannot be taken of a justice of the peace of a sister State, and there is no proof of any kind to show that the person- before whom this application purports to have been verified, was in fact a justice of the peace, and as such authorized to administer oaths, for the false swearing of which a person could be prosecuted for perjury. The certifi-cate of the justice simply, cannot be received as evidence of his authority, because he is not an officer of such grade and rank as to make his official acts prove themselves. He is not like a notary-public, whose acts prove themselves in all commercial countries, when verified by his notarial seal. 3 Wend. 178.
These applications should be supported by oath, taken before some competent person authorized to administer the same, and of whom judicial notice wilL be taken, or who is shown to be so by proper evidence; and this application failing to show that, must be denied, but without prejudice to another application. | [
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Eskridge, J.
delivered the opinion of the Court. — This is an action of debt, brought by the plaintiff against Ashley, administrator of the estate of William M. O’Hara, deceased, upon a judgment recovered in the State of Missouri by the plaintiff Dent against Susan O’Hara, administratrix, and Paul Anderson and Robert Simpson, administrators of the estate of William M. O’Hara, in the State of Missouri.
The defendant filed five several pleas; to the second, fourth, and fifth of which, the plaintiff' demurs generally, and takes issue upon the first and third. This state of pleading enables us to look back to the declaration, and ascertain whether a sufficient cause of action has been set forth in it, to authorize a judgment in favor of the plaintiff. Beauchamp v. Mudd, Plardin, 164.
The judgment upon which ^jis action is founded, is against the administrators of O’Hara, in Missouri, and we are at a loss to see how it can be used as evidence of debt, or be the basis of a suit against the administrator’s of O’Hara here. There is, unquestionably, according to the well-known rules of law, no connection or privity between the administrators in Missouri and the administrator in Arkansas. 3 P. Wms. 369; 2 Rawle, 431; 5 Mass. Rep. 67.
The principle is universally acknowledged, that no one can be bound by a verdict or judgment unless he be a party to the suit, or be in privity with the party, or possess the power of making himself a party. The reason is obvious. He has no power of cross-examining witnesses, or of adducing evidence in maintenance of his rights; in short, he is deprived of all means provided by law for ascertaining the truth, and consequently it would be repugnant to the first principles of justice, that he should be bound by the result of an inquiry to which he is altogether a stranger. Wood v. Davis, 7 Cranch, 271; Davis v. Wood, 1 Wheaton, 6; Paynes v. Coles, 1 Munf. 373; Turpin v. Thomas, 2 Hen. & Munf. 139; Jackson v. Veddor, 3 Johns. R. 8; Case v. Reeves, 14 Johns. R. 79, are in illustration of this rule.
In the case of Grout v. Chamberlin, 4 Mass. Rep. 613, it is decided that a judgment recovered by an executor is no bar to an action brought by the administrator de bonis non, cum testamento annexo, for the same cause, there being no privity. The first judgment cannot, at common law, be enforced by the administrator de bonis non, but becomes inoperative. We are, therefore, of opinion that the declaration is insufficient in not setting forth a ground of action. Judgment for defendant.
Stacy v. Thrasher, 6 How. 44; Pond v. Makepeace, 2 Met. 114; (as to privity, Greenl. Ev. § 523) ; Chapman v. Fish, 6 Hill, 554; Aspden v. Nixon, 4 How. 467. | [
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Opinion or the Court. — This was an action of covenant, brought on a penal obligation for a failure on the part of Flanakin to run a horserace. The plaintiff has made profert of the obligation, and after setting out the terms of the race, states the condition substantially as expressed in the obligation. It is also alleged that Lemmons was ready and offered to perform the condition on his part, and that Flanakin failed and refused to run the race according to the condition of the obligation. The allegation as to the failure to run the race is as follows, namely: “ And it was then and there by the aforesaid parties further agreed, that should either of them fail to run agreeable to the said obligation, that the same for six cows and calves was to be in full force and virtue against the other.”
This allegation conforms to the condition of the obligation, and the defendant by his demurrer questions the right of the plaintiff to maintain this action. He urges that, agreeable to the literal reading of the obligation, the party who failed to comply with the condition would have the right of action against the other ; in other words, that it is not in force against him who fails to run, but against him who complies with the condition. This unquestionably is the literal reading. For the plaintiff it is urged, that it was obviously a mistake in the scrivener, and that the court should disregard the words and construe the obligation according to what may be supposed to have been the intention of the parties; that is, that it should be in full force and virtue against him who failed to comply, contrary to the letter, that it “ should be in full force and virtue against the other.”
When there is ambiguity we will search out, if possible, the true intention and meaning of the parties, and enforce the contract in conformity with that intention and meaning. 11 Co. Rep. 34; 1 Term Rep. 313. But certainly we cannot adopt a construction in direct violation of the reading and letter of an obligation, nor can we say that, under certain circumstances, one party shall be liable to the penalty of an obligation when it is expressed that the other shall be. 1 Term Rep. 51, 52; 6 East, 518; 9 lb. 101. The least that can be said of this contract is, that it is absurd in its terms, and however much the court, for the purpose of doing justice to both parties, might be disposed to rectify, a mistake in a contract entered into in good faith and for a full and valuable consideration, yet we do not feel authorized or required to go the same length in support of one without a valuable consideration, absurd on its face, and immoral in its tendency. We think this action cannot be maintained, and therefore the demurrer must be sustained, and judgment entered for the defendant. Judgment accordingly. | [
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Opinion oe the Court. — The court below dismissed this suit because there was an error in the original writ, although it was not served, but an alias had been regularly obtained and served on the defendant. We can see no reason for dismissing the suit for an error in a writ which was never served. It can only be considered as a clerical misprision, by which the defendant could not possibly be prejudiced. The alias capias which was served on the defendant is in every respect correct, and the court ought not to have looked beyond it. Reversed. | [
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'Opinion oe the Court. — An action of debt was brought by Paschal Buford, executor of Henry Buford, deceased, against William Hickman, founded upon a record of the United States district court of West Tennessee. The defendant filed a special demurrer to the plaintiff’s declaration, but the demurrer was overruled. Issue was then taken on the plea of nul iiel record, upon which issue the court rendered judgment for the defendant; and the assignment of error calls in question the propriety of this judgment.
The whole case, we apprehend, turns upon the question of the sufficiency of the record offered in evidence. If that was full and complete, and properly authenticated, the decision of the court, in refusing to receive it as evidence, was erroneous. But, on the other hand, if it was not full and complete, and properly authenticated, the decision of the court was correct.
The first objection taken in argument to the admissibility of the record was, that it being a record of a district court of the United States, the act of congress of 1790, regulating the mode of authenticating records in order to make them evidence, does not apply. Admitting the act of congress of 1790 to apply alone to the records of the State courts, and this is clearly the case, still it has been decided, by some of the most respectable courts in the Union, that the records of the United States courts are admissible in evidence in the State courts, if authenticated by the seal of the court, attestation of the clerk, and certificate of the judge; and we can perceive no substantial objection to their admission as evidence in the courts of this territory. The United States exercise jurisdiction and sovereignty over Arkansas, and we conceive that we are bound to know the officers of the respective courts of the United States, and to enforce, when called upon, their judgments, for the same reasons that the English courts enforce the judgments of one another. Pepoon v. Jenkins, 2 Johns. Cas. 119; Borden v. Fitch, 15 Johns. 121.
The second objection taken to the admission of the record in evidence, is one of much more difficulty, and about which we have entertained great doubt. It has been contended that the record is incomplete and imperfect, and does not furnish evidence that the defendant was served with process. There is no writ in the record, nor does it appear that issue was joined between the parties. In the introductory part of the declaration, the technical term “attached” is used; from which it might be inferred that there had been a writ, and it had been executed. It further appears from the record, that the parties appeared by their attorneys, that a jury tried the cause and gave a verdict, and that the district court rendered a judgment. But does all this furnish conclusive legal evidence of the existence of a writ and its service ? If a writ be an essential component of a record, and that it is so considered is well settled by authority, can it be dispensed with, or can its legal existence be established in any other way than by its production; or can its service be shown in any other mode than by the return of the proper officer ? Duvall v. Craig, 2 Wheaton, 45, 55; Adams v. Calhoun, Litt. Sel. Cas. 10. It is true, that the appearance of a party by attorney will cure a defective service of a writ, and even supersede the necessity of service, and the consent of the parties entered on the record might doubtless dispense with the writ itself. 2 Strange, 1072; 4 Cranch, 180; 3 Ib. 498. But in the record of the district court, no such consent appears. The parties appeared by their attorneys, but no plea was filed, and no venire facias awarded, although, from the nature of the case, one was necessary. In short, no act was performed by the attorney going to show that he was representing the defendant Hickman. Can Hickman, then, be considered to have been regularly in court? We think not. The record furnished, in our opinion, no legal evidence of the service oh-process on Hickman, or an appearance for him; and if so, the judgment of the district court of Tennessee was not binding upon him, and was properly-excluded. Judgment affirmed. | [
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Opinion ob the Court. — The only question which we have to consider is, whether Gibson and Brown, the defendants in the court below, had the right to appear there and plead to the attachment, without first filing special bail to the action. We have no doubt this right is given to defendants in all cases upon attachment. The act of 1823 (Acts 1823, p. 6) provides, “ that in all cases upon attachment, the defendant may appear and plead the same as in other cases, provided that when such defendant does not enter into special bail as is now prescribed bylaw, the property shall be and remain in the hands of the sheriff until the final determination of the suit.” From the provisions of the above act, we think it clear, that defendants in attachment may in all cases appear and plead without giving bail, and that the property attached by the sheriff is considered as a substitute for bail. We are, therefore, of opinion that the court erred in refusing to hear the defendants unless they filed special bail to the action. Reversed. | [
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Yell, J.,
delivered the opinion of the Court.— This was an action of debt, brought in the name of the governor, for the use of McWilliams, against John Campbell and others, upon a constable’s bond. An execution bad been placed in the hands of Campbell, as constable of Ozan township, in favor of McWilliams against Jam.es W. Judkins, for the sum of sixty-one dollars and fifty cents. Upon the execution the constable made a levy on the property of Judkins, on the 8th day of April, 1833; but took no bond for its delivery, on the day of the sale; and returned on the execution, that he had levied on a quantity of household and kitchen furniture, bedding, medicines, and drugs, but not enough to satisfy the execution. He advertised the property to be sold on the 4th of May, 1833, and proceeded to offer the same publicly, and in separate parcels, at which time no person bid or gave any thing for the property. The plaintiff then sued out a venditioni exponas, and placed it in the hands of the constable, upon which he made the following return, namely: “ This ven. ex. is returned not satisfied; the property levied on, by virtue of an execution, bearing date the 8th of April, 1833, is not to be found in my bailiwick, and I have not found any other goods or chattels of the defendant whereon to levy the ven. ex.; returned this 27th of June, 1833.” Whereupon suit was commenced against Campbell, as constable, and his securities on his official bond, for the amount of the debt. At the May term, 1834, of the Hempstead circuit court, the jury found the following verdict: “We find the assignment of breaches in the plaintiff’s declaration mentioned, to be true, and assess his damage by reason thereof, to the sum of sixty-one dollars and fifty cents.”
In the investigation of this subject, it may be necessary to advert to several points in the cause, for the purpose of settling some questions that may hereafter arise. The material question is, Was there error in the verdict and rendition of the judgment in the court below ? It has been properly contended by the counsel for the plaintiff in error, that the judgment for the plaintiff ought to have been for the full amount of the penalty of the bond, to be discharged by the payment of such damages as the plaintiff had sustained by reason of the breaches assigned; and in support of that position, 1 Saund. 58, n. 1, and Ter. Dig. 348, have been cited. By reference to the statute it will be found, that upon any bond “ for the payment of money, wherein the plaintiff shall recover, judgment shall be entered for the penalty of such bond, to be discharged by the payment of principal and interest due thereon, and costs of suit and execution shall issue accordingly.” Then if this was a bond for money, no possible doubt could exist. But it is a bond with conditions to perform the duties of an office. Will that change the judgment? We believe not: the statute says, “the plaintiff may assign as many breaches as he may think fit, and the jury may assess damages on each of the breaches, and on each verdict the like judgment shall be entered, as heretofore has been usually done in such cases.” From the statute and the English authorities, we are satisfied, that in this judgment there is error in form, sufficient to require us to remand the cause for a more perfect judgment.
The court is asked to decide the question, as to the liability of the constable, in not taking a delivery bond for the property on the first execution, and in failing to obtain the property on the return of the venditioni exponas. The statute requires the officer to take bond from the defendant; but if the defendant fails, or refuses to give it, he can only take the property and keep it until the day of sale. It becomes to a certain extent his own; he could, if it was taken out of his possession, bring an action to recover it, or for any injury to it. And further, if an officer levies on property sufficient to pay the debt, and his return shows the fact, it is a payment of the debt by the defendant, and the plaintiff must look to the officer for his money.
The officer may take a delivery bond (Ter. Dig. 345) ; but if he does not, the. property is at his own risk; and if it is not forthcoming on the day of sale, he becomes liable, in the nature of special bail, to the plaintiff. If the above principles are true, then the officer woul¿ still be responsible for the delivery of the property on the return of the venditioni exponas.
The court refused to permit the defendant, on the inquiry of damages, to give parol evidence of the value of the goods levied on under t.he execution, and instructed the jury, that the officer, failing to state the value of the goods levied on, was conclusive evidence that there were goods enough to pay and satisfy the debt, although the officer had returned that they were not sufficient. We believe the court erred in rejecting the evidence to prove the value of the property. That was one means to arrive at the true amount of damages that ought to have been recovered against the officer. Consequently the court erred in instructing the jury, that the officer not returning the value of the property levied on, was conclusive evidence against him, of sufficient value, and that they ought to find accordingly.
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Opinion oe the Court. — This was an action of trespass on the case, on promises, brought by Rose against Miles, to which the latter pleaded non-assumpsit and payment. Without making an issue, or replying, or noticing these pleas, Rose proceeded, a jury was sworn, the cause tried, and a judgment rendered in his favor, from which Miles has appealed to this court.
The pleas of Miles were a good bar to the action until avoided, traversed, or denied by replications: and without which a jury could not be sworn to try the issue, for in fact there was no issue made up between the parties. This error is too manifest to require reasoning from the court, and was-doubtless the result of inattention on the part of Rose.
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Opinion of the Court. — The complainant, a citizen of the State of Tennessee, has brought this suit in chancery against Elias E. Byrne, a citizen of the State of Mississippi, and Absalom Fowler, Thomas T. Tunstall, and W. W. Tunstall, citizens of the State of Arkansas, and W. B. Miller, whose residence is unknown and not alleged, and thereupon moves for an injunction.
By the 11th section of the Judiciary Act of 1789 (1 Stat. 78), this court can entertain jurisdiction of suits at common law or in equity only “ where the United States are plaintiffs or petitioners, or an alien is a party, or the suit is between a citizen of the State where the suit is brought and a citizen of another State.” The complainant being a citizen of Tennessee, and the defendant (Byrne) a citizen of Mississippi, this court has no jurisdiction, unless there is something in the case itself to take it out of the operation of the rule prescribed by the above act. And to do that, the complainant contends that as thiJ is a suit to enjoin proceedings on a judgment at law rendered in this court, in which Byrne was plaintiff, it is not an original bill, but is auxiliary, growing out of and subsidiary to the suit at law. If this position is correct, the jurisdiction of the court is clear enough.
Now it has been held repeatedly, that the defendant in a judgment at law in the circuit court of the United States may file a bill in chancery in the same court to enjoin the plaintiff from proceeding on the judgment, and that such a bill is not to be regarded as an original suit, but only as auxiliary to and springing from the suit at law. Logan v. Patrick, 5 Cranch, 288; Dunlap v. Stetson, 4 Mason, 349; Dunn v. Clarke, 8 Peters, 3.
Is this such a bill ? It is not the case of a defendant against whom a judgment has been obtained, invoking the aid of the chancellor to relieve him from it as unjust and inequitable, but it is the case of one who was neither party nor privy to the judgment, seeking to restrain the plaintiff from enforcing it, and also praying a decree for the amount recovered. This bill sets up an equity between the complainant therein and Byrne, the plaintiff in the suit at law, but not between the parties to the judgment. The defendant in the judgment has no interest in the subject-matter of this suit. The bill cannot be said to be auxiliary to the defendant Tunstall’s defence, for it is not filed by him; nor has he any interest in any decree that might be made. Is it not, then, an original proceeding? I cannot doubt that it is. In every case in which the courts of the United States have held the bill to be auxiliary to the suit at law, and consequently not original, the defendant at law has become the complainant in chancery.
In Dunn v. Clarke, 8 Peters, 3, the supreme court says: — “ The injunction bill is not considered an original bill between the same parties, as at law; but if other parties are made in the bill, and different interests involved, it must be considered, to that extent at least, an original bill, and consequently the jurisdiction of the circuit court must depend upon the citizenship of the parties.” Under the Judiciary Act, one of the parties must be \ citizen of the State where the suit is brought.
Now here the bill is not between the same parties as at law, and moreover an entirely different interest is involved. For all practical purposes, it must be considered as an original bill; and as the complainant Williams is a citizen of Tennessee, and the defendant Byrne a citizen of Mississippi, this court can take no jurisdiction of the case.
Upon the ground, also, that Williams failed to swear to his bill, without showing any sufficient reason for it, I should not hesitate to overrule the motion for an injunction. | [
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Johnson, J.,
delivered the opinion of the Court. — This is a motion to dismiss the appeal made by the appellee, the plaintiff in the court below, on the ground that the appellant, the defendant in the court below, failed by himself or agent to make the affidavit required by law at the time of taking the appeal. The fifty-fourth section of the statute under the title “ Judicial Proceedings,” in Geyer’s Digest, 261, provides that, .“if any person shall feel himself aggrieved by the final decree or judgment given in any of the circuit courts in any cause wherein the matter in dispute exceeds, exclusive of costs, the sum or value of one hundred dollars, it shall and may be lawful for such person at the term in which judgment is given, to enter his or her appeal to the superior court; provided that no appeal shall be granted to any defendant in actions of debt or in actions upon the case, for note, bill, book account, or assumpsit, unless the defendant or his agent shall make affidavit or affirmation stating that he does not appeal for the purpose of delay or vexation, but that he believes himself aggrieved by the judgment of the inferior court.”
If the proviso just recited be in force, the motion to dismiss this appeal must prevail, as the appellant made no affidavit or affirmation in the circuit court at the time he prayed the appeal. But it is contended that the proviso requiring the affidavit is repealed by subsequent legislation. Mr. Geyer, the compiler of the Digest, has marked it as repealed by the fifty-fifth section of the same title, and in this he was no doubt correct. But the fifty-fifth section has been subsequently repealed by the fifth section of an act supplementary to the several acts establishing courts of justice, and regulating judicial proceedings, passed December 23, 1818. Pamp. Acts, 36.
By the repeal of the fifty-fifth section, all the fifty-fourth section was thereby revived. By the repeal of a repealing statute, the original statute is revived. This principle of the common law is to be found in its earliest records, and is undisputed. The Bishop’s case, 11 Co. Rep. 7; 1 Blackstone, Com. 9,0.
The organic laws of Missouri and this territory have been referred to for the purpose of showing that an appeal is given by these laws, and that it is not competent to the local legislature to restrict the right of appeal. We think it is within the power of the legislature of the territory to prescribe the conditions upon which an appeal may be taken, provided they are not manifestly unreasonable. The condition required in the proviso of the fifty-fourth section, is far from being unreasonable or improper; but, on the contrary, is consistent with the soundest policy.
It is further contended by the counsel for the appellant, that an appeal without affidavit is given by the second section of an act in addition to an act, entitled “ An Act to amend an act regulating the mode of judicial proceedings in certain cases, and extending certain powers to the General Court, passed 21st December, 1818.” We are clearly of opinion, after attentive consideration of this act, that it is applicable to chancery suits alone, and not to actions or suits at law.
It is the opinion of the court that this appeal must be dismissed, on the grounds of a failure of the appellant to make by himself or his agent the affidavit required by law at the time of praying the appeal. Appeal dismissed. | [
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Opinion oe the Court. — To the defendant’s fifth plea of set-off, the plaintiff has replied the statute of limitations of three years, to which the defendant, in his second rejoinder avers, that at the time of the accrual of the causes of action as stated in the plea of set-off, the plaintiffs were, and from thence until within three years next before the commencement of this suit, continued to be out of, and did not return to, the State of Arkansas. The plaintiffs move to strike this rejoinder from the record files, on the ground that it is no answer to the replication.
The rejoinder is valid, unless the 20th section of the statute of limitations, providing for absence from the State, has been repealed. Rev. Stat. 529.
The act of 1844, (Acts of 1844, p. 25,) does, in fact, repeal this section, and the question arises, whether the repealing act is constitutional. I am clearly of opinion that it is not; because it takes from the party all remedy upon his contract, without affording him any, even the shortest time in which to bring suit after the return of the person absent to this State. Piatt v. Vattier, 1 McLean, 156. It has been repeatedly held that a statute of limitations which abrogates all remedy upon contracts, is equivalent to a law impairing the obligation of the contract itself, and, consequently, unconstitutional and void. Bronson v. Kenzie, 1 Howard, Rep. 311.
The motion to strike out must, therefore, be overruled, and the rejoinder adjudged good. | [
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Opinion op the Court. — Phillips, executor of William Patterson, deceased, and defendant in- error, presented an account against the estate of William Patterson, at the December term, 1825, of the circuit court of Phillips county, and obtained a judgment for seven hundred and fifty dollars. John Patterson, one of the heirs, and plaintiff in error, appeared and opposed the allowance of the account, and having failed .in the court below, has brought this case up on a writ of error. A preliminary question has been made and argued, which it is first necessary to notice. The defendant, by his counsel, insists that a writ of error will not lie in the present case. In ordinary cases it is admitted that a writ of error lies from the circuit courts to this court, but it is contended that the proceeding was had under the thirtieth section of the administration law of 1825; and that by the provisions of that section an appeal is the only mode of bringing the case to this court. It is a sufficient answer to this objection, that the present case does not come under the provisions of that section. The provision is, “ that if any person having any claim or demand against the estate of any deceased person, shall apply to the circuit court where administration was granted, to have the same allowed, first giving the executor or administrator ten days previous notice in writing.”
The mode of proceeding is then pointed out, and a further provision made, that if either party feels aggrieved by the decision, he may appeal to the superior court, where the trial is to be had de novo upon the merits.
■ It is very obvious that the present case does not come within the provisions of this section. It provides a remedy for the creditor of the estate, other than the executor himself, who, as the representative of the estate, is to defend the claim. The creditor is to be one party and the executor the other. If Phillips is permitted to exhibit the claim, who is to oppose or defend it? Is he permitted to present it in his individual character, and to defend it in his fiduciary capacity ? Allen v. Gray, 1 Monroe, 98. If this could be tolerated he has not done so ; for he has presented the account as executor, and not in his personal character, or as guardian of the infant heirs. 3 Littell, 8. It is needless to attempt to illustrate that which is so obvious. If the preceding observations be correct, it follows that the plaintiff is entitled to a writ of error in this, as in ordinary cases.
The first error assigned questions the propriety of allowing any part of the account against the estate of William Patterson.
The claim presented by Phillips did not, in our judgment, constitute a proper subject of allowance against Patterson’s estate. It was not a debt created by Patterson, nor was it due from or owing by him; it was, in truth, a claim, not against the estate, but against the heirs of Patterson in their individual character. It was no part of the duty of Phillips, as executor, to board and clothe the infant heirs, and he could have no allowance therefor in his administration accounts. Toller on Exec’rs, 134 ; Brewster v. Brewster, 8 Mass. 149; Hart v. Hart, 2 Bibb, 609; Washburn v. Phillips, 5 Smedes & Marsh. 600.
It is contended that Phillips was constituted guardian by the will, and maintained and educated the infant heirs of Patterson. He is undoubtedly entitled to remuneration ; but in presenting his accounts against those heirs, the defendant, as guardian, should have made it out against them severally and not jointly. It would be manifestly unjust to charge one heir with necessaries furnished to another, and by presenting a joint account this would be the inevitable consequence.
In the present case the heirs had attained to full age, and they were entitled to notice by which their interest was to be affected. No such notice appears to have been given, and one only of the heirs appeared and opposed the proceedings. We do not think the statute of limitations applicable to this case as a positive bar, as the defendant stands in the attitude of a trustee; but the great lapse of time affords a presumption against the justice of the claim, which is entitled to due weight in the consideration of a court or jury.
Judgment reversed. | [
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Opinion oe the Court. — This is an action of debt brought by the appellee against the appellant in the circuit court of Pulaski county, and comes to this court by appeal.
It appears from the record, that the defendant in the court below filed his plea of payment, to which the plaintiff replied; and the defendant refusing to join issue by adding a similiter, a judgment on that account was rendered against him, and he now contends that this judgment should be reversed.
The judgment, although not strictly and formally correct, is certainly substantially good, and ought not to be reversed at the Instance of the appellant, who was in fault in not completing the pleadings. Admitting the English practice, in a case like this, to be, to strike out the plea and enter judgment by default, it is not perceived what advantage it has over the practice heretofore adopted by this court in the case of Russell v. Flanakin, in which a judgment precisely similar was entered. The defendant in refusing to join issue abandoned his defence, and the plea, though not actually, was virtually stricken out. It is a mere matter of form, and when substantial justice has been done between the parties, this court would be unwilling to reverse the judgment of the inferior court on mere technical objections of a doubtful character. Judgment affirmed. | [
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Opinion of the Court. — In this case it is alleged by the complainant that he formed a partnership in trade with the defendant, in April, 1819, which fact is denied by the defendant.
It is, therefore, ordered that a jury come at the next term on the law side of this court to ascertain by their verdict, whether there was or was not a partnership in trade, formed by said Drope and Miller, in April, 1819, and that the verdict of the jury be immediately certified to this court as a court in chancery. | [
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Olly Neal, Judge.
Helen Sullivan appeals from the portion of the order of the Workers’ Compensation Commission that denied the compensability of her claim for permanent partial disability benefits. For reversal of the Commission’s order, appellant argues that the Commission’s decision that she faded to prove, by a preponderance of the evidence, entitlement to permanent partial disability benefits is not supported by substantial evidence. We affirm.
Appellant was employed by appellee as a nurse’s assistant whose job duties included lifting patients out of bed to dress and bathe them. On October 10, 1994, appellant suffered an injury to her right shoulder, for which appellee accepted compensability and paid benefits. Appellant suffered a second injury to her right shoulder and neck on June 12, 1995. Following her compensable injury, appellant underwent a cervical fusion that was performed by Dr. Luis Cesar. Subsequent to that time, appellant developed a number of complaints involving pain in her left heel, left arm, left shoulder and right forearm. Appellant then filed a claim for workers’ compensation disability benefits and contended that she sustained injuries to those parts of her body as a result of repetitive trauma while employed by appellee. The administrative law judge awarded appellant benefits for her admittedly compensable injuries through June 9, 1996. The ALJ also found that appellant had failed to prove by a preponderance of the evidence that she is entitled to any permanent partial disability benefits as the result of her compensable injuries. In addition, the ALJ found that appellant failed to prove that she suffered a compensable injury to her left heel, left arm, left shoulder, or right forearm while employed by appellee. The appellant then appealed to the Commission, which affirmed and adopted the ALJ’s decision as its own.
When reviewing a decision of the Workers’ Compensation Commission, we view the evidence and all reasonably inferences deducible therefrom in the fight most favorable to the findings of the Commission and affirm that decision if it is supported by substantial evidence. Atkins Nursing Home v. Gray, 54 Ark. App. 125, 923 S.W.2d 897 (1996). Substantial evidence is that which a reasonable person might accept as adequate to support a conclusion. Smith v. Gerber Products, 54 Ark. App. 57, 922 S.W.2d 365 (1996).
Arkansas Code Annotated § 11-9-102(5) (f)(ii) (Repl. 1996) provides:
(a) Permanent benefits shall be awarded only upon a determination that the compensable injury was the major cause of the disability or impairment.
(b) If any compensable injury combines with a pre-existing disease or condition or the natural process of aging to cause or prolong disability or a need for treatment, permanent benefits shall be payable for the resultant condition only if the compensable injury is the major cause of the permanent disability or need for treatment.
Arkansas Code Annotated § 11-9-102(14) (A) (Repl. 1996) defines “major cause” as “more than fifty percent (50%) of the cause.”
At trial, the deposed testimony of Dr. Cesar was admitted into evidence. According to Dr. Cesar, he performed a cervical fusion on appellant at the C5-6 level to correct a disc herniation. While conducting the surgery, Dr. Cesar also removed bone spurs that he opined were the result of cervical spondylosis. Dr. Cesar noted that when performing surgery to address an injury to the neck there generally is a combination of the bone spur and disc herniation. Dr. Cesar assigned appellant a permanent impairment rating of 7% to the body as a whole based upon AMA Guidelines. When questioned, Dr. Cesar could not state whether the 7% rating was due mostly to cervical spondylosis or mostly to the disc herniation, because the impairment rating refers to the type of procedure a patient has had and the result.
According to appellant, Dr. Cesar’s testimony should be construed to mean that the ratings do not provide sufficient information or guidance to allow him to award a rating based upon causation, but merely refer to the fact that it was a single level operation to the neck and the results of the surgery. When asked what cervical spondylosis is, Dr. Cesar responded:
Cervical spondylosis is a general term that refers to changes that you see in the spine due to chronic progressive wear and tear alterations that you see as people grow old, and are generally characterized by the drying up of discs, narrowing of the vertebral space, spurs, and many times disc herniations.
Dr. Cesar also stated that the single event in this case would not have caused spondylosis, although it may have cause the disc herniation. Dr. Cesar was unable to state that the compensable injury was the major cause of appellant’s permanent disability. Dr. Cesar also opined that appellant’s neck and shoulder injury were not causally related to her other complaints.
As stated earlier, on appeal we view the evidence in the light most favorable to the Commission’s findings. Here, appellant has failed to produce evidence that the compensable injury is the major cause of her disability.
We hold that there is substantial evidence to support the Commission’s decision.
Affirmed.
Robbins, C.J., and Bird, Rogers, and Griffen, JJ., agree.
Stroud, J., dissents. | [
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Terry Crabtree, Judge.
This case presents a question regarding insurance coverage. The appellants are the parents of the late Dwayne Hawkins. On November 4, 1988, Dwayne collapsed while playing in a Pocahontas High School football game. He was hospitalized and died thirty-nine days later without ever regaining full consciousness. During the period of his hospitalization, Dwayne was insured under an accident policy issued to the Pocahontas School District by the appellee, Heritage Life Insurance Company. The appellants filed a claim with Heritage, seeking benefits for medical expenses incurred during their son’s hospitalization. Heritage denied the claim on the grounds that Dwayne’s death was not “accident-related.” As a result of that denial, the appellants filed suit against Heritage, seeking the maximum amount of medical expense benefits payable under the policy, plus a twelve percent penalty, interest, and attorney’s fees. Heritage filed a motion for summary judgment, which was granted by the trial court. We reverse and remand for trial.
The standard of review in summary judgment cases is well-established. Summary judgment is an extreme remedy which should only be allowed when it is clear that there is no genuine issue of material fact to be litigated. Johnson v. Stuckey & Speer, Inc., 11 Ark. App. 33, 35, 665 S.W.2d 904 (1984). The burden of sustaining a motion for summary judgment is on the moving party. Moeller v. Theis Realty, Inc., 13 Ark. App. 266, 269-70, 683 S.W.2d 239 (1985). On appeal, we must view the evidence in the light most favorable to the non-moving party. Undem v. First Nat’l Bank, 46 Ark. App. 158, 162, 879 S.W.2d 451 (1994). It is our task to decide if the granting of summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion left a material question of fact unanswered. Johnson v. Harrywell, Inc., 47 Ark. App. 61, 63, 885 S.W.2d 25 (1994). With these criteria in mind, we undertake our review of the following facts, as revealed by the attachments to the appellee’s motion for summary judgment and the appellants’ response thereto.
At the time of his death, Dwayne Hawkins was an eighteen-year-old high school senior and a member of the Pocahontas High School football team. His medical history discloses that, during his sophomore and junior years of high school, he experienced two syncopal episodes, one during a track meet and one while he was lifting weights. The episodes were diagnosed, possibly incorrectly, as seizures. Dwayne was prescribed Dilantin and was told to take it every day. There is no evidence of a history of any other medical problems.
During the week before the November 4, 1988, football game, Dwayne had been ill with the flu, yet he recovered in time to dress out for the game. He did not start the game because, according to his father, he had suffered bruised ribs in a game two weeks earlier. However, he eventually entered the game and, according to Mr. Hawkins, was involved in several plays where he encountered physical contact. Mr. Hawkins recalls that Dwayne was participating on punt coverage and ran full speed down the field for over forty yards. At some point, Dwayne was sent into the game as a punter. After kicking the ball, he took a few steps and collapsed on the field.
Mr. Hawkins’s account of these events is disputed. According to Coach David Williams, Dwayne was not allowed to start the November 4 football game because he had missed practice earlier in the week. In Coach Williams’s affidavit, he states that he is positive that Dwayne was only in the football game for the one play during which he punted the ball and collapsed on the field. He further stated that he did not see Dwayne receive any contact during the play, nor did anyone ever tell him that they saw Dwayne get hit.
After his collapse, Dwayne was taken to the emergency room of the Randolph County Medical Center. The emergency room physician noted that the initiating factor behind Dwayne’s collapse could not definitely be determined at that point. Dwayne was stabilized and transferred to St. Bernard’s Regional Medical Center in Jonesboro. The admission report noted that Dwayne had been participating in a high school football game, at which time he experienced a syncopal episode. The report stated that “[h]e received no apparent contact and was simply seen to take a few steps and collapse.” The initial assessment of Dwayne’s condition was probable hypoxic encephalopathy with the initiating event still uncertain. The possibilities listed included cardiac arrhythmia, seizure disorder, cardiac arrest secondary to bronchos-pasm, and asthma.
The day following Dwayne’s admission to St. Bernard’s, a cardiology consultation was performed by Dr. Michael Isaacson. According to Dr. Isaacson’s report, “[n]o obvious contact such as bodily injury was noted prior to this collapse.” The report further noted that Dwayne had failed to take his Dilantin for the last forty-eight preceding his collapse. Dr. Isaacson suspected sudden cardiac death as the initial explanation for the collapse rather than seizure activity.
Dwayne remained hospitalized until his death on December 13, 1988. The death summary prepared by the hospital declared that it was likely that the event which initiated Dwayne’s collapse was ventricular dysrhythmia. The official discharge diagnosis was (1) acute hypoxic encephalopathy secondary to cardiopulmonary arrest; (2) pansinusitis; (3) recurrent ventricular arrhythmia. However, it was noted that the diagnosis could not be made with certainty.
Shortly after Dwayne’s collapse and hospitalization, the appellants had submitted a claim to Heritage Life Insurance Company on an accident claim form. Under the portion of the form which asked the claimant to detail how the injury occurred, the following language appeared: “Heart failure and respiratory arrest (no contact).” The claim form was signed by Benny Hawkins on November 7, 1988.
On April 3, 1989, Heritage Life Insurance Company denied the appellants’ claim for benefits. The denial was based on the fact that the policy provided medical expense benefits only if the insured received treatment because of an “injury.” The term “injury” was defined in the policy as “[b]odily injury or injuries resulting directly and independently of all other causes from an accident sustained while the Policy is in force as to the Insured Person and which results in loss covered by the Policy.”
Four and one-half years after the denial of their claim, Mr. and Mrs. Hawkins filed the lawsuit which is the subject of this appeal. During the course of the lawsuit, the deposition of Benny Hawkins was taken. Mr. Hawkins testified that he remembered Dwayne being in the game for at least two plays other than the play on which he collapsed. He said that he saw Dwayne get hit on at least one of the downs. He also said that he had looked at a videotape of the game and that the tape confirmed his recollection. However, upon viewing the tape with the appellee’s attorneys, he admitted that the tape did not clearly show Dwayne’s participation in more than one play.
Mr. Hawkins also stated in his deposition that he had once contacted Dr. Isaacson for an opinion on whether physical contact could have contributed to Dwayne’s collapse. On July 26, 1991, Dr. Isaacson responded with a letter which contained the following language: “This letter is in regard to our recent telephone conversation of 7-26-91. At the present time, I suppose that prior physical contact could have, in some form or fashion, contributed to your son’s collapse but again, these are only speculations on my behalf.”
Dr. Isaacson’s deposition was also taken during the course of the litigation. The doctor admitted that he did not know exactly what triggered Dwayne’s collapse. His best guess was that Dwayne had experienced a cardiac arrest probably as a result of dysrhythmia, which caused a loss of oxygen to the brain. When asked about the possibility that physical contact or strenuous activity could have contributed to Dwayne’s death, the doctor said the following:
Q. At this point, I don’t know that anyone has seen anything on the films that would show that he was involved in any sort of physical contact, but if the testimony, when this case is tried, produces some testimony that he was involved in physical contact and assuming that he had some underlying cardiac condition, could that have contributed to the arrest?
A. The possibility that it could have contributed I think has to be considered. I would expect it to be significant contact and contact involving the chest before you would really say that it could possibly had [sic] any contribution.
Q. What about running as hard as you can run, say, for 50 yards or so?
A. Hard strenuous activity could have also aggravated an underlying cardiac condition.
All of the above-mentioned evidence was relied upon by Heritage in submitting its motion for summary judgment to the court. The same evidence was relied upon by the appellants. Additionally, Mr. Hawkins provided the court with an affidavit in which he reiterated that his son had engaged in strenuous activity and exertion in kicking the football and had been involved in several plays during the game in which he experienced physical contact. Based upon these exhibits, the court ruled that the appellants failed to demonstrate a compensable “injury” as defined by the policy. The court also found that the appellants failed to establish that a sudden burst of physical activity or contact proximately caused Dwayne’s collapse. It is from that ruling that Mr. and Mrs. Hawkins appeal.
Our supreme court has noted that Arkansas courts, as well as courts throughout the land, have faced difficulty in determining what is an “accidental” death or injury. See Duvall v. Massachusetts Indemnity and Life Ins. Co., 295 Ark. 412, 414, 748 S.W.2d 650 (1988). Our courts have adopted the generally accepted definition of “accident” as something “happening by chance, taking place unexpectedly, not according to the usual course of things. Harford Life Ins. Co. v. Catterson, 247 Ark. 263, 265, 445 S.W.2d 109 (1969). The Arkansas Supreme Court has held that, where an injury following overexertion or strain is unforeseen or unexpected and is not such as would naturally and probably result from a voluntary act done, but is rather an unusual result, such injury is accidental. Union Life Ins. Co. v. Epperson, 221 Ark. 522, 524, 254 S.W.2d 311 (1953); Metropolitan Casualty Ins. Co. v. Fairchild, 215 Ark. 416, 418-20, 220 S.W.2d 803 (1949). However, in Duvall, the most recent case on this subject, the court recognized that not every death that is sudden or unexpected is accidental. The court also noted that the words “bodily injury” are commonly and ordinarily used to designate an injury caused by external violence, and not to indicate disease. See Duvall, supra, at 415-16.
In this case, unlike Duvall, the cause of the decedent’s death is uncertain and disputed. Causation is ordinarily a fact question for the jury to decide. First Commercial Trust Co. v. Rank, 323 Ark. 390, 402, 915 S.W.2d 262 (1996). The testimony of Mr. Hawkins and the testimony of Dr. Isaacson are sufficient to raise material questions of fact regarding the factors which contributed to Dwayne’s death. We therefore reverse and remand for trial.
Reversed and remanded.
Griffen and Roaf, JJ., agree.
The appellants state in their brief that the videotape clearly reflects that Dwayne had participated in a play previous to punting the football. Nothing in the record indicates that the tape was presented to the trial court as an exhibit. Neither has the videotape been furnished to this court on appeal. Therefore, we will not consider it as evidence on behalf of the appellants. | [
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Judith Rogers, Judge.
This is an appeal from the Workers’ Compensation Commission’s order affirming and adopting the administrative law judge’s decision. The ALJ found that appellant failed to establish that he had sustained a compensable injury supported by objective findings as required by Ark. Code Ann..§ 11-9-102(5)(D) (Repl. 1996). On appeal, appellant argues that the Commission erred in not considering deficits in range of motion and mobility as “objective findings.” Also, appellant contends, in the alternative, that there is no substantial evidence to support the Commission’s decision. We affirm the Commission’s decision.
The record reveals that appellant worked for appellee for one month lifting table tops which weighed between twenty-five and forty pounds. On January 4, 1995, between 7:00 a.m. and 9:00 a.m., appellant’s back began to hurt. He saw Dr. Michael W. Cal-laway who diagnosed lumbar strain. Appellant visited doctors from January 1995, through August 1995. Appellant’s overall diagnosis was lumbar strain with no positive, objective tests results. The only sign of appellant’s back strain was the assessment that appellant was unable to bend over more than ninety degrees. There were signs of disc bulges, but the disc problems were said to be unrelated to appellant’s work activity or his back strain.
On appeal, appellant argues that the Commission erred in not considering his inability to bend more than ninety degrees as an “objective finding.” Appellant admits that a range of motion test is not to be considered an “objective finding” when determining impairment ratings as set forth in Ark. Code Ann. § 11 — 9-102(16)(A)(ii) (Repl. 1996). However, appellant reasons that a range of motion test should be considered an “objective finding” when determining compensability. We disagree.
Arkansas Code Annotated § ll-9-102(5)(A)(ii)(b) (Repl. 1996) provides:
(5) (A) ‘Compensable injury’ means:
(ii) An injury causing internal or external physical harm to the body and arising out of and in the course of employment if it is not caused by a specific incident or is not identifiable by time and place of occurrence, if the injury is:
(b) A back injury which is not caused by a specific incident or which is not identifiable by time and place of occurrence.
Arkansas Code Annotated § 11-9-102(5)(D) provides that a com-pensable injury “must be established by medical evidence, supported by ‘objective findings’ as defined in § 11-9-102(16).” “Objective findings” are those findings which cannot come under the voluntary control of the patient. Ark. Code Ann. § 11 — 9— 102(16)(A)(i) (Repl. 1996).
Construing the Act strictly, it is apparent that appellant’s inability to bend more than ninety degrees is not an “objective finding” within the meaning of Ark. Code Ann. § 11-9-102(16)(A)(i). Appellant’s limitation could clearly have come under his voluntary responses, his manipulation, and control. See Duke v. Regis Hairstylists, 55 Ark. App. 327, 935 S.W.2d 600 (1996). The Commission, in determining the compensability of appellant’s claim, proceeded under Ark. Code Ann. § 11-9-102(16)(A)(i), which was a correct application of the law. Consequently, we cannot say that there is no substantial evidence to sup port the Commission’s finding that appellant’s lack of range of motion was not an “objective finding.”
Appellant also argues that even if appellant’s inability to bend ninety degrees is found not to be objective, there is no substantial evidence to support the Commission’s denial of benefits. We disagree.
A compensable injury must be established by “medical evidence supported by ‘objective findings’ as defined in § 11 — 9— 102(16).” Ark. Code Ann. § 11-9-102(5)(D) (Repl. 1996). The record reveals that the only positive finding associated with appellant’s injury was his inability to bend over ninety degrees. As we discussed above, this is not an “objective finding.” The record does not indicate any other objective tests which rendered a positive result indicating that appellant had sustained a compensable injury.
Substantial evidence is that evidence which a reasonable person might accept as adequate to support a conclusion. Crawford v. Pace, 55 Ark. App. 60, 929 S.W.2d 727 (1996). A decision by the Commission should not be reversed unless it is clear that fair-minded persons could not have reached the same conclusions if presented with the same facts. Id. Based on the record and the evidence before us, we cannot say that there is no substantial basis to support the Commission’s denial of benefits.
Affirmed.
Pittman and Meads, JJ., agree. | [
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Olly Neal, Judge.
The Garland County Office of Child Support Enforcement appeals an order entered by the Chancery Court of Garland County denying its petition to require the appellee, Frank Lawrence, to pay child support. For reversal of the chancellor’s order, the appellant argues that the decision of the chancery court is contrary to the law and public policy of the State of Arkansas. We affirm.
The facts in the record indicate that appellee and Kimberly Lawrence were married on September 9, 1987. Prior to the parties’ marriage, Kimberly Lawrence had given birth to one daughter, Erica, who is not the appellee’s biological child. Appellee adopted Erica in February 1990. Subsequent to appellee’s adoption of Erica, Kimberly Lawrence commenced an action to obtain a divorce from appellee. In October, 1990, appellee executed an instrument entitled relinquishment and termination of parent-child relationship. On November 13, 1990, the chancellor entered a divorce decree in which the court approved and incorporated the property settlement and the termination of the parent-child relationship.
In August, 1993, Kimberly Lawrence applied for and received AFDC benefits on behalf of Erica. Kimberly Lawrence received benefits for the minor child from August 10, 1993, through January 1, 1994. On September 7, 1995, appellant filed a petition requesting that the court order appellee to pay child support, and for a judgment against him in an amount equal to the benefits received by Kimberly Lawrence on behalf of the minor child. In his final order on the matter, the chancellor denied appellant’s petition for child support.
On appeal, appellant argues that the lower court’s order is contrary to the law and public policy of the State of Arkansas. Appellant argues that the chancellor was without jurisdiction to grant the relinquishment and termination of parent-child relationship because it was filed in a divorce case, instead of a probate or juvenile proceeding. Appellant is correct in that the authority to terminate parental rights is specifically granted to the juvenile and probate courts. See Ark. Code Ann. §§ 9-9-220, 9-27-341 (1987). Flowever, in the context of a divorce, where child custody is at issue, the chancellor is vested with broad discretion to make decisions that are in the best interests of the minor child. See Ark. Code Ann. § 9-13-101 (1987).
The record reflects that Kimberly Lawrence filed for divorce from appellee some two months after appellee had adopted Erica. Ms. Lawrence, who worked as a legal secretary at the time of the divorce, assisted in drafting the paperwork. At the hearing on the divorce petition, Ms. Lawrence testified that she was a victim of physical abuse inflicted upon her by appellee, that Erica was present on each occasion she suffered physical abuse, and that on one occasion appellee threatened her with a gun. Ms. Lawrence testified that it was her belief that the termination of the parent-child relationship was in the best interest of the minor child, because she did not want appellee to be able to exercise visitation with Erica. Upon hearing Ms. Lawrence’s testimony, the chancellor inquired as to whether she could support the child without appellee’s assistance. Ms. Lawrence assured the chancellor that she could provide for Erica without appellee’s assistance, and that she would work two jobs if necessary. The chancellor also inquired as to whether Ms. Lawrence was aware that termination of the parent-child relationship precluded Erica from inheriting from appellee, and from receiving any benefits she would be entided to as his child. Ms. Lawrence assured the chancellor that she was aware of the consequences of terminating the parent-child relationship, and that she had made plans to execute a will in which she would appoint a guardian for Erica in the event of her death.
Appellant cites Davis v. Office of Child Support Enforcement, 322 Ark. 352, 908 S.W.2d 649 (1995), in support of its argument that it was error for the chancellor to order termination of the parent-child relationship. In Davis, the supreme court stated:
It has long been the law in Arkansas that the interests of a minor cannot be compromised by a guardian without approval by the court. Rankin v. Schofield, 71 Ark. 168, 66 S.W. 197 (1902). It is not sufficient that a court be made aware of a compromise agreement and that it is agreeable to the guardian; rather, the court must make a judicial act of investigation into the merits of the compromise and into its benefits to the minor. Kuykendall v. Zachary, 179 Ark. 478, 16 S.W. 590 (1929).
Id. at 355, 908 S.W.2d at 651.
In the instant case, the required judicial act of investigation into the merits of the compromise and the benefits to the minor child was performed. The law and public policy of the State of Arkansas require that the best interests of the child are of paramount importance in determining issues relative to child custody and support. Indeed, in reviewing Mrs. Lawrence’s testi mony, it becomes evident that the underlying rationale behind requesting the termination of the parent-child relationship and her plans to draft a will that would make provisions for Erica’s custody upon her death, was that she believed it to be in the best interest of the minor child to have no further contact with appellee.
We note that at the time of appellee’s execution of the petition to terminate the parent-child relationship there was no statutory requirement that the parent purporting to relinquish parental rights remain obligated to pay child support until the child is adopted. See Ark. Code Ann. § 9-9-220 (1987). However, the 1995 amendment made it clear that the duty to support continues, despite the relinquishment of parental rights, until an interlocutory decree of adoption is entered. See Ark. Code Ann. § 9-9-220 (Supp. 1995).
We review chancery cases de novo, giving due deference to the chancellor’s superior ability to judge the demeanor and credibility of witnesses and reverse only if the chancellor’s findings are clearly erroneous. Laroe v. Laroe, 48 Ark. App. 192, 893 S.W.2d 344 (1995). Because, at the time of appellee’s execution of the relinquishment of parental rights, the law did not provide that a parent had a continuing duty of support until the entry of an interlocutory decree of adoption, we hold that it was not error for the chancellor to deny the appellant’s petition for child support from appellee.
Affirmed.
Griffen and Crabtree, JJ., agree. | [
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Sam Bird, Judge.
Appellant Leamon Ashe was found guilty by a jury of theft of property and sentenced as an habitual offender to thirty years in the Arkansas Department of Correction and fined $5,000. A motion for judgment NOV, for new trial, and for reduction of sentence was filed, and on December 13, 1995, the trial court entered an order denying appellant a new trial but reducing his sentence to fifteen years with credit for time served. Both appellant and the State have appealed. Appellant argues that the trial court (1) should have granted his motion to dismiss for lack of sufficient evidence to convict, and (2) erred in departing from the model jury instruction. The State, as cross-appellant, argues that the trial court erred in reducing the defendant’s thirty-year prison sentence, which had been fixed by the jury, to a sentence of fifteen years in the Arkansas Department of Correction.
At trial, Susan Foster testified that she was part owner of Clyde’s Used Cars in West Memphis, Arkansas, and on May 5, 1995, she reported the theft of a 1983 greenish-gray Cadillac from her lot. She said she had sold the car the day before for $995, closed the business at about 5:30 p.m., and the next morning when the buyer came to pick the car up, it was gone. Ms. Foster said she did not see the vehicle again until she picked it up at the Memphis impound lot several weeks later. She also testified that she did not know Leamon Ashe and that no one at her business gave him authorization to use the vehicle.
G.R.. Flerbert, a Memphis police officer, testified that on June 26, 1995, he was dispatched to the Overton Manor Apartment Complex at 3046 St. Clair Place about 8:45 p.m. to look for a stolen car. He said that although this was a fairly large apartment complex, each apartment had its own number, and he found a 1983 gray Cadillac parked closest to and in front of 3046 St. Clair. He said the steering column was broken, the trunk lock was punched out, a tire was flat, and it had no license plate. Officer Herbert said he ran the vehicle identification number and found that the car was stolen so he had it towed to the impound lot.
C.I. Woodruff, another Memphis police officer, testified that he worked in the crime scene unit, took photographs, made diagrams of crime scenes, inventoried and tagged evidence, looked for latent fingerprints, and preserved evidence. He processed the Cadillac on June 27, 1995, and took pictures of the car that depicted the damage. Officer Woodruff said the only identifiable fingerprint he found was on the front corner of the rearview mir ror, which was lying on the floorboard near the front passenger’s seat.
Frank Stuckey testified to the procedure he used in taking appellant’s fingerprints, and the fingerprint card was introduced into evidence without objection. Andre Nagoski testified that he is a latent fingerprint examiner for the Memphis police department, and he identified the fingerprint found on the rearview mirror in the floorboard of the Cadillac as matching the right ring finger of the appellant.
Memphis Police Officer Michael W. Allen testified that he had interviewed the appellant, who gave his address as 3046 St. Clair Place, Memphis, Tennessee, and said he had a sister who lived in West Memphis on South 11th Street, within a few blocks of Clyde’s Auto Sales.
Appellant argues in his first point for reversal that the evidence was insufficient to support his conviction. A person commits theft of property if he knowingly takes or exercises unauthorized control over, or makes an unauthorized transfer of an interest in, the property of another person, with the purpose of depriving the owner thereof. Ark. Code Ann. § 5-36-103(a)(1) (Repl. 1993). Our standard of review in a case such as this was stated by the Arkansas Supreme Court in Nichols v. State, 280 Ark. 173, 655 S.W.2d 450 (1983):
On appellate review of the sufficiency of the evidence, we seek to determine whether the verdict is supported by substantial evidence. We reiterated in Jones v. State, 269 Ark. 119, 598 S.W.2d 748 (1980), that substantial evidence, whether direct or circumstantial, must be of “sufficient force and character that it will, with reasonable and material certainty and precision, compel a conclusion one way or the other. It must force or induce the mind to pass beyond suspicion or conjecture .... [T]he test is not satisfied by evidence which merely creates a suspicion or which amounts to no more than a scintilla or which gives equal support to inconsistent inferences.” Evidence is not substantial whenever the factfinders are left “only to speculation and conjecture in choosing between two equally reasonable conclusions, and merely gives rise to a suspicion.” Surridge v. State, 279 Ark. 183, 650 S.W.2d 561 (1983). A directed verdict should be granted where there is no evidence from which the jury could have found, without resorting to surmise and conjecture, the guilt of the defendant. Fortner & Holcombe v. State, 258 Ark. 591, 528 S.W.2d 378 (1975). In Ravellette v. State, 264 Ark. 344, 571 S.W.2d 433 (1978), we said: “Where inferences are relied upon, they should point to guilt so clearly that any other conclusion would be inconsistent. This is so regardless of how suspicious the circumstances are.”
Here, there is no evidence upon which the jury could base its convictions except upon surmise and conjecture. When the evidence is found insubstantial on appeal, the double jeopardy clause of our federal constitution requires a dismissal of the action. Roleson v. State, 277 Ark. 148, 614 S.W.2d 656 (1981); Polland v. State, 264 Ark. 753, 574 S.W.2d 656 (1978); Burks v. U.S., 437 U.S. 1 (1978); and Greene v. Massey, 437 U.S. 19 (1978).
Nichols v. State, 280 Ark. at 175-76, 655 S.W.2d at 452.
Appellant submits that the State’s only evidence against him was: (1) An unsubstantiated report that he had relatives living within two to four blocks of the car lot from which the car was stolen; (2) the car was found in Memphis, Tennessee, about a month after the theft, parked in front of 3046 St. Clair Place, which was the address appellant gave as his address; (3) a fingerprint matching one of appellant’s fingerprints was found on the unattached rearview mirror that was lying on the floor of the car; and (4) a hearsay report about a “Crimestopper’s tip” that led police to the car. Appellant submits various scenarios that would innocently explain these facts.
In determining the sufficiency of the evidence, it is necessary to ascertain only the evidence favorable to the appellee State, and it is permissible to consider only that testimony that supports a verdict of guilt. Gardner v. State, 296 Ark. 41, 67, 754 S.W.2d 518, 531 (1988). The evidence against appellant was circumstantial, but circumstantial evidence is sufficient to constitute substantial evidence. Hooks v. State, 303 Ark. 236, 795 S.W.2d 56 (1990). In determining whether the evidence was substantial we consider only the evidence that supports the conviction without weighing it against other evidence favorable to the accused. Key v. State, 325 Ark. 73, 76, 923 S.W.2d 865 867-68 (1996); Farris v. State, 308 Ark. 561, 826 S.W.2d 241 (1992). Circumstantial evidence alone may constitute substantial evidence when every other reasonable hypothesis consistent with innocence is excluded. Nance v. State, 323 Ark. 583, 918 S.W.2d 114 (1996). Once the evidence is determined to be sufficient to go to the jury, the question of whether the circumstantial evidence excludes any other hypothesis consistent with innocence is for the jury to decide. Key, supra; Hadley v. State, 322 Ark. 472, 910 S.W.2d 675 (1995); Missildine v. State, 314 Ark. 500, 863 S.W.2d 813 (1993); Lolla v. State, 179 Ark. 346, 15 S.W.2d 988 (1929). The credibility of the witnesses who testify in a criminal trial is a matter for the jury to determine, and it may reject, in whole or in part, the testimony of any witness, including the defendant, who is the person most interested in the outcome of the trial. Moore v. State, 315 Ark. 131, 134, 864 S.W.2d 863, 865 (1993); Atkins v. State, 310 Ark. 295, 302, 836 S.W.2d 367, 371 (1992); Zones v. State, 287 Ark. 483, 702 S.W.2d 1 (1985).
In the instant case the State proved that appellant’s sister lived within walking distance of the car lot from which the Cadillac was taken; when the car was located, it was parked directly in front of the apartment in which appellant lived; and one of appellant’s fingerprints was found on the rearview mirror that was lying in the floor of the car.
Appellee informs us that many jurisdictions have held that the State puts before the jury substantial evidence when it proves that the defendant’s fingerprints were found at the scene of the crime. See Annotation, Fingerprints, Palm Prints or Bare Footprints as Evidence, 28 A.L.R.2d 1115, 1150-55 (1953 and Later Case Service). Arkansas has followed this trend. In Tucker v. State, 50 Ark. App. 203, 901 S.W.2d 865 (1995), we reviewed our case law:
Fingerprints, under some circumstances, may be sufficient to sustain a conviction. See Brown v. State, 310 Ark. 427, 837 S.W.2d 457 (1992) (fingerprints found both on exterior window glass and inside the structure); Howard v. State, 286 Ark. 479, 695 S.W.2d 375 (1985) (fingerprint removed from exact place where robber was seen placing his hand as he vaulted into booth); Ebsen v. State, 249 Ark. 477, 459 S.W.2d 548 (1970) (fingerprints on both sides of a plate glass window that had been broken in and propped up inside the store). However, fingerprints alone have been held to be insufficient. See Standridge v. State, 310 Ark. 408, 837 S.W.2d 447 (1992) (thumbprint found on disposable cup beside a tent that was several feet from marijuana plants is not enough where there was no evidence to suggest when or where the appellant had touched the cup, whether he had purchased it, or how it came to be near the marijuana); Holloway v. State, 11 Ark. App. 69, 666 S.W.2d 410 (1984) (fingerprints on piece of glass located outside the house where a burglary occurred are not enough).
50 Ark. App. at 206-07; 901 S.W.2d at 867. The fingerprint on the mirror, the proximity of the stolen Cadillac to the apartment in which appellant was living, and the fact that appellant had relatives living within walking distance of the car lot the Cadillac was stolen item, considered together, constitute sufficient evidence to support the jury’s finding of guilt.
Appellant also argues that the trial court erred in departing from the Arkansas Model Criminal Instructions. During deliberations the jury returned to the courtroom and asked:
JUROR: We have a question, sir. We would like for you to explain in laymen’s terms what you mean by exercised unauthorized control.
THE COURT: Let me see that instruction. That simply means to use the automobile without the permission of the owner.
Appellant contends that with this instruction, the jury was not required to find that he knew the car was stolen or that his purpose was to deprive the owner of its property, but only had to find that he had “use[d] the automobile without the permission of the owner.” Appellant contends the jury was improperly instructed and that gave the State a “much lessened burden from AMCI.” Appellant admits that if the court had read the entire instruction again, substituting “without the permission of the owner” for the words, “exercised unauthorized control,” he would be without this argument. He suggests, however, that because of what the court did “the jury was given the very wrong impression that it only need find that Ashe operated the car without the owner’s permission and need not find that appellant had knowledge and purpose to deprive the owner thereof.”
In support of this argument appellant cites Cavin v. State, 313 Ark. 238, 855 S.W.2d 285 (1993), in which our supreme court said:
It is not error for the trial court to refuse to give a non-AMCI jury instruction if the other instruction given covered the issue. See Williams v. State, 304 Ark. 279, 801 S.W.2d 296 (1990); Henderson v. State, 284 Ark. 493, 684 S.W.2d 231 (1985). An instruction not included in AMCI should be given only when the trial judge finds that the AMCI instruction does not state the law or if AMCI does not contain a needed instruction on the subject. Ventress v. State, 303 Ark. 194, 794 S.W.2d 619 (1990).
313 Ark. at 249-50, 855 S.W.2d at 291. Appellant also cites Donovan v. State, 26 Ark. App. 224, 764 S.W.2d 47 (1989), in which this court said:
Although the appellant argues that the instruction was unduly emphasized when the court did not repeat all the instructions, we do not agree. We do agree that additional instructions must be used with care. The case of Hicks v. State, 225 Ark. 916, 287 S.W.2d 12 (1956), cited by appellant, makes it clear that it is preferable to settle the instructions in chambers. Moreover, Rush v. State, 239 Ark. 878, 395 S.W.2d 3 (1965), shows the danger of giving new or repeated instructions after jury deliberations have begun. However, in McGaha v. State, 216 Ark. 165, 224 S.W.2d 534 (1949), the court said:
The trial court did not err in reinstructing on the degrees of homicide after the jury reported agreement on the question of defendant’s guilt as to some offense. It is within the province of the presiding judge to give further instructions when, in the exercise of proper discretion, he regards 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. (Citations omitted.)
216 Ark. at 171-72. Also, in Wood v. State, 276 Ark. 346, 635 S.W.2d 224 (1982), the court said:
It is within the province of the presiding judge to recall the jury and [give] them further instructions when, in the exercise of a proper discretion, it is necessary to do so in the furtherance of justice. Harrison v. State, 200 Ark. 257, 138 S.W.2d 785 (1940). It is not always necessary in such cases that he should repeat the whole charge. Harrison v. State, supra.
276 Ark. at 349. Furthermore, Rule 33.4 of the Arkansas Rules of Criminal Procedure provides, in part, as follows:
(d) The judge may recall the jury after it has retired to deliberate and give it additional instructions in order to:
(i) correct or withdraw an erroneous instruction;
(ii) clarify an ambiguous instruction; or
(iii) inform the jury on a point of law which should have been covered by the original instructions.
(e) Should additional instructions be given, the judge in his discretion may allow additional argument by counsel.
While McGaha and Wood, supra, approved additional instructions under situations where the jury had requested the instructions, and the appellate court found no error since the jury had indicated it understood all the other instructions, both opinions specifically state that it is not always necessary to repeat all the instructions. Both opinions also say that additional instructions may be necessary in the furtherance of justice, and both opinions recognize that the real problem is the proper exercise of the trial court’s discretion.
26 Ark. App. at 231-33, 764 S.W.2d at 51.
The appellee characterizes appellant’s argument as an assertion that by the way the trial court defined “exercised unauthorized control,” he so emphasized that part of the statutory definition of theft of property that, in the minds of the jurors, the rest of the definition of theft of property faded away, leaving the theft of property a strict-liability offense that did not require proof of a culpable mental state. Appellee concedes that appellant makes a very good argument that the trial court should not have defined the term for the jury but should have reread the entire statutory definition of theft of property. AppeEee argues, however, that appellant has failed to preserve this argument for appeal because appellant did not ask the court to give the entire instruction. The appellant must make known to the court the action he wishes the court to take. Dumond v. State, 290 Ark. 595, 599, 721 S.W.2d 663, 665 (1986) (citing Walker v. State, 280 Ark. 17, 20, 655 S.W.2d 370, 372 (1983)). “It is the duty of a party desiring relief to apprise the trial court of the proper basis upon which he relies in order to preserve an issue for appeal.” Baker v. State, 310 Ark. 485, 490, 837 S.W.2d 471, 473 (1992).
Appellee argues that appellant’s second argument is also procedurally barred because the only relief appellant requested was a mistrial. Mistrial is an extreme remedy that should only be granted when justice cannot be served by continuing the trial. A mistrial is only appropriate when the error is beyond repair and cannot be corrected by any curative relief. A trial court has broad discretion in granting or denying a motion for a mistrial, and the trial court’s decision will not be reversed absent abuse of that discretion. Cook v. State, 316 Ark. 384, 872 S.W.2d 72 (1994); Jiminez v. State, 24 Ark. App. 76, 749 S.W.2d 331 (1988). It was appellant’s burden to request curative relief, and his failure to request a limiting instruction cannot inure to his benefit on appeal. Haynes v. State, 311 Ark. 651, 846 S.W.2d 179 (1993); Sullinger v. State, 310 Ark. 690, 840 S.W.2d 797 (1992). If appellant had brought to the trial court’s attention that he wanted the jury to hear the entire theft-of-property instruction again, as he argues on appeal, the judge probably would have done that. We cannot agree that the trial court’s actions were an abuse of discretion, particularly where appellant did not request the judge to reinstruct the jury on the entire definition of theft of property.
On cross-appeal the State argues that the trial court erred in reducing appellant’s thirty-year sentence, which had been fixed by the jury, to fifteen years. The State is permitted to appeal the imposition on a defendant of a sentence that was illegally imposed by the circuit court. See, e.g., State v. Rodriques, 319 Ark. 366, 891 S.W.2d 63 (1995); State v. Townsend, 314 Ark. 427, 863 S.W.2d 288 (1993); and State v. Freeman, 312 Ark. 34, 846 S.W.2d 660 (1993). The State has the right to such appeals pursuant to Arkansas Rules of Appellate Procedure — Criminal 3(b), (c) (1996) (formerly codified as Arkansas Rule of Criminal Procedure 36.10(b); (c)). Moreover, in a criminal case the State is permitted to pursue an appeal as a cross-appellant. See, e.g. Moore v. State, 321 Ark. 249, 258-61, 903 S.W.2d 154, 158-60 (1995) and State v.Brown, 265 Ark. 41, 577 S.W.2d 581 (1979).
Appellant was convicted of theft of property pursuant to Ark. Code Ann. § 5-36-103 (b)(2) (Repl. 1993), a Class C felony. Arkansas Code Annotated section 5-4-401 (a) (4) (Repl. 1993) sets the sentence for a Class C felony at not less than three nor more than ten years. However, at the beginning of the penalty phase of the trial, the prosecution entered evidence that appellant was a habitual offender with five prior felony convictions. Arkansas Code Annotated section 5-4-501(b)(4) (Supp. 1995) provides that a defendant who is convicted of a Class C felony after June 30, 1993, and has four or more prior felony convictions may be sentenced to a term of not less than three nor more than thirty years. Thus, the sentence of thirty years’ imprisonment imposed by the jury was within the statutory range of permissible sentences for someone with more than four prior felony convictions who is convicted of a Class C felony.
After the jury recommended a sentence of thirty years in the Arkansas Department of Correction, the trial court pronounced sentence from the bench. A formal, written judgment and commitment order was filed on November 15, 1995. On November 28, 1995, appellant filed a motion for reduction of sentence, because “the sentence is clearly too harsh for the crime for which this jury has convicted him.” On December 13, 1995, the court, without a hearing and without explanation, modified appellant’s sentence, stating simply:
The Defendant’s Motion for Judgment NOV and Motion for New Trial are denied, but the Defendant’s Sentence of Thirty (30) years in the Arkansas Department of Correction and fine of five thousand dollars ($5,000) is hereby reduced to a term of fifteen (15) years in the Arkansas Department of Correction with credit for time served.
In response to the State’s argument that the reduction of his sentence was error, appellant argues that appellee did not preserve this issue for appeal because no record was made of the hearing and the prosecution did not object to the reduction of the sentence. The State responds in its reply brief that no hearing was held to make a record of and that it did object to the reduction of appellant’s sentence when it filed an answer to appellant’s motion.
The State may raise at any time the illegality of reducing a sentence, and the issue of an illegal sentence may be raised for the first time on appeal. In Bangs v. State, 310 Ark. 235, 239, 835 S.W.2d 294 (1992), the Arkansas Supreme Court said, “[W]e treat allegations of void or illegal sentences similar to problems of subject matter jurisdiction in that we review such allegations whether or not an objection was made in the trial court. Howard v. State, 289 Ark. 587, 715 S.W.2d 440 (1986). A sentence is void when the trial court lacks authority to impose it. Id.” We also find that the State, by filing its answer objecting to appellant’s motion for reduction of his sentence, reserved this issue for appeal, particularly since the court granted the motion without conducting a hearing.
A criminal defendant is sentenced when the statutory authority of a circuit court to reduce a sentence of imprisonment ends and the constitutional authority of the Governor to grant clemency begins. Our case law tells us that a defendant is sentenced when the trial judge enters a judgment and commitment order. Hadley v. State, 322 Ark. 472, 910 S.W.2d 675 (1995); Pannell v. State, 320 Ark. 250, 895 S.W.2d 911 (1995); Kelly v. Washington, 311 Ark. 73, 843 S.W.2d 797 (1992); Redding v. State, 293 Ark. 411, 738 S.W.2d 410 (1987); Wooten v. State, 32 Ark. App. 194, 799 S.W.2d 555 (1990). A trial court is without jurisdiction to modify a sentence once it has been put into execution. DeHart v. State, 312 Ark. 323, 325, 849 S.W.2d 497, 499 (1993); Jones v. State, 297 Ark. 485, 763 S.W.2d 81 (1989); Toney v. State, 294 Ark. 473, 743 S.W.2d 816 (1987).
Once a defendant has been sentenced, any motion for reduction of the length of the sentence is a request for clemency, Smith v. State, 262 Ark. 239, 555 S.W.2d 569 (1977), which is reserved to the Governor, Ark. Const. art. 6 § 18. In Shelton v. State, 44 Ark. App. 156, 160, 870 S.W.2d 398, 400 (1994), we noted that the Arkansas Supreme Court has been very careful to consider the separation of powers when reviewing the authority of trial courts to reduce a defendant’s sentence. Because of the power to pardon held by the Governor, courts have no authority to reduce a defendant’s sentence on the basis that it is unduly harsh. Parker v. State, 302 Ark. 509, 790 S.W.2d 894 (1990); Coones v. State, 280 Ark. 321, 657 S.W.2d 553 (1983); Rogers v. State, 265 Ark. 945, 582 S.W.2d 7 (1979); Abbott v. State, 256 Ark. 558, 508 S.W.2d 733 (1974).
In Parker the Arkansas Supreme Court said:
In the past this court did reduce sentences. Carson v. State, 206 Ark. 80, 173 S.W.2d 122 (1943). We later decided that such an action was wrong because it violated the separation of powers doctrine. Osborne v. State, 237 Ark. 5, 371 S.W.2d 518 (1963). There we decided that the power to exercise clemency is vested, not in the courts, but in the chief executive. Since then we have uniformly held that the sentence is to be fixed by the jury and not by this court. If the testimony supports the conviction for the offense in question and if the sentence is within the limits set by the legislature, we are not at liberty to reduce it even though we think it unduly harsh. Id. at 7, 371 S.W.2d at 520.
302 Ark. at 512, 790 S.W.2d at 895.
As stated in Coones, supra:
In Williams, Standridge & Deaton v. State, 229 Ark. 42, 313 S.W.2d 242 (1968), we recognized that:
The great weight of authority supports the rule that when a valid sentence has been put into execution, the trial court cannot modify, amend, or revise it in any way either during or after the term or session of the court at which the sentence was pronounced; any attempt to do so is of no effect and the original sentence remains.
We reiterated this rule in the recent cases of Cooper v. State, 278 Ark. 394, 645 S.W.2d 950 (1983); and Hunter v. State, 278 Ark. 428, 645 S.W.2d 954 (1983), where we said that, “Once a valid sentence is put into execution the trial court is without jurisdiction to modify, amend or revise it.” To the same effect are Shipman v. State, 261 Ark. 559, 550 S.W.2d 454 (1977); and Emerson v. Boyles, 170 Ark. 621, 280 S.W. 1005 (1928). In Emer son we recognized “the rule, well established, that where the defendant has entered upon the execution of a valid sentence, the court loses jurisdiction over the case.”
280 Ark. at 322-23, 657 S.W.2d at 555. And Abbott v. State, supra, says:
Appellant also contends that the sentences are excessive and a deterrent to his rehabilitation. The state, in its brief, reminds us that we have held that review of sentences which are not in excess of statutory limits is not within the jurisdiction of this court because the exercise of clemency is a function of the executive branch of the government under Art. 6, Sec. 18 of the Arkansas Constitution, and this court is not at liberty to reduce a sentence within statutory limits, even though we might think it unduly harsh. Osborne v. State, 237 Ark. 5, 371 S.W.2d 518. See also, Hurst v. State, 251 Ark. 40, 470 S.W.2d 815.
256 Ark. at 562, 508 S.W.2d at 733.
Appellant also argues that the sentencing statutes do not prohibit discretion of judges to reduce sentences and cites Ark. Code Ann. § 16-90-111 (1987). That statute is entitled “Fixing of punishment — Correction of illegal sentence — Reduction of sentence” and provides in its entirety:
(a) Any circuit court, upon receipt of petition by the aggrieved party for relief and after the notice of the relief has been served on the prosecuting attorney, may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within the time provided in this section for the reduction of sentence.
(b)(1) The court may reduce a sentence within one hundred twenty (120) days after the sentence is imposed or within one hundred twenty (120) days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal.
(2) The court may also reduce a sentence upon revocation of probation as provided by law.
This statute is not applicable in the instant case. It pertains, as the tide states, only to illegal sentences. In Peterson v. State, 317 Ark. 151, 153, 876 S.W.2d 261 (1994), our supreme court held that Ark. Code Ann. § 16-90-111 (1987) provides a narrow remedy whereby the trial court may correct an illegal sentence at any time, and may correct a sentence imposed in an illegal manner within 120 days after a guilty plea. An illegal sentence is a sentence that is illegal on its face. Lovelace v. State, 301 Ark. 519, 520, 785 S.W.2d 212 (1990); Abdullah v. State, 290 Ark. 537, 720 S.W.2d 902 (1986). Cothrine v. State, 322 Ark. 112, 907 S.W.2d 134 (1995), held that Ark. Code Ann. § 16-90-111 (Supp. 1991), which permits the trial court to correct a sentence imposed in an illegal manner within 120 days after the receipt of the affirming mandate of the appellate court and which permits an illegal sentence to be corrected at any time, is in conflict with Ark. Crim. P. Rule 37. See also, Petree v. State, 323 Ark. 570, 920 S.W.2d 819 (1995), and Smith v. State, 321 Ark. 195, 900 S.W.2d 939 (1995).
Appellant’s original sentence was within the statutory range of permissible sentences for someone convicted of a Class C felony who has more than four prior felony convictions. Therefore, his sentence is modified to reinstate the original sentence recommended by the jury: thirty years in the Arkansas Department of Correction and a five thousand dollar ($5,000) fine.
Affirmed on direct appeal. Reversed on cross appeal and modified.
Stroud and Jennings, JJ., agree.
Cooper, Neal, and Crabtree, JJ., dissent. | [
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John B. Robbins, Chief Judge.
Appellant Lori Hunt appeals the decision of the Board of Review, which allowed the Employment Security Division to recoup overpayments previously made to her. She applied for and was awarded unemploy ment compensation benefits for a period of twenty-four (24) weeks. Incorrect reports of income by appellant while she was receiving benefits resulted in an overpayment to her. Fraudulent misreporting was attributed to appellant.
She appealed the determination of fraud and the amount of overpayment to the Appeal Tribunal, and after affirmation, to the Board of Review. The Board of Review determined (1) that the finding of fraud was final as it had not been timely appealed, and (2) that the Arkansas Employment Security Department’s calculation of overpayment was correct. This appeal resulted.
On appeal, the findings of fact of the Board of Review are conclusive if they are supported by substantial evidence. George’s Inc. v. Director, 50 Ark. App. 77, 900 S.W.2d 590 (1995). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. We review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Board’s findings. Id. Our review is limited to a determination of whether the Board could reasonably reach its decision upon the evidence before it. Id.
The record reveals that appellant was employed by the Dag-gett Law Firm in Marianna, Arkansas, but was terminated in June 1992. Upon termination, she qualified for and began drawing unemployment benefits. During the period of benefits, she obtained variable employment that reduced the amount of unemployment benefits to which she was entitled. Appellant admits that some weeks she unintentionally reported net income instead of gross income. Appellant asserts that she overreported income during some benefit periods to make up for underreporting errors. The record reflects that she did not go to the local employment security office to clear up misreportings. The variations in income resulted in an actual benefit overpay of $548.00, according to her computation. Appellant agrees that she owes monies, but she denies that appellee correctly calculated the amount owed. Appellant asserts that by her calculation she owes $548.00 in actual benefit overpay, whereas appellee found that she owes $1,365.00, the total weekly benefits she received during fraudulent report periods.
The appeal before us is confined only to the issue of whether overpayment is due; the fraud determination is not properly before us. On September 8, 1994, appellant was mailed a determination that she had been disqualified based upon a finding of fraud. On September 22, 1994, a notice of fraud overpayment determination was mailed. Each notice letter included the standard appeal time limit of twenty days. Appellant’s notice of appeal was filed on October 10, 1994. Therefore, notice of appeal was timely filed as to the overpayment determination, but not as to the fraud determination. The Board of Review stated in its opinion: “The controlling issue of fact in this overpayment matter is whether the claimant received the benefits at issue.” Appellant admits she received all her benefit checks. The Board affirmed the lower tribunal in finding that appellant did receive the unemployment benefits during the period she had fraudulently reported income.
Appellant believes that the applicable statute should be construed to only require repayment of the actual amount of overpayment after calculating unreported income. Appellee maintains that the Board of Review was correct and that the statutes in Title 11, Chapter 10, read together, require that a finding of fraud disqualifies appellant from receiving any benefits during that period. Appellee refers us to Ark. Code Ann. § 11-10-519(2)(A) (Repl. 1996), which provides that a claimant shall be disqualified from benefits for any week as to which the claimant has willfully made false representations. Also pertinent to this case, and cited by both parties, is Ark. Code Ann. § 11-10-532(a)(1) (Repl. 1996), the statute on recovery of benefits, which states:
If the Director of the Arkansas Employment Security Department finds that any person has made a false statement or misrepresentation of a material fact knowing it to be false or has knowingly failed to disclose a material fact and as a result of either action has received any amount as benefits under this chapter to which he was not entitled, then the person shall be Hable to repay the amount to the fund, or in lieu of requiring repayment, the director may recover the amount by deductions from any future benefits payable to the person under this chapter. (Emphasis added).
Reading these two statutes together, the Board of Review determined that since it was undisputed that appellant had received benefits, she was bound to return those benefits in their entirety. Her disqualification based upon fraud compelled this determination. It is beyond the scope of this appeal for appellant to argue whether her misrepresentations were intentional or not.
We agree that the sum due was the total benefits she received while disqualified. Appellant cites no legal authority other than the text of Ark. Code Ann. § 11-10-532 (Repl. 1996) to persuade us otherwise. The interpretation advanced by appellant would provide no deterrent to fraudulent reports. Furthermore, such an interpretation would create a disharmony within a chapter of our statutes dealing with employment security law. This result would be undesirable and inappropriate.
Affirmed.
Stroud and Crabtree, JJ., agree. | [
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Terry Crabtree, Judge.
Appellant Mary Jordan appeals from the decision of the Workers’ Compensation Commission, which adopted the decision of the Administrative Law Judge, denying her claim for benefits. We reverse.
Appellant is a sixty-one-year-old high-school graduate who worked as a sales clerk for J.C. Penney for seventeen years. She seeks benefits for an injury that occurred on September 14, 1993, based on her testimony that as she reached into a jewelry case while helping a customer, she felt an immediate severe pain in her back. She became faint and ill and was carried to her home where she stayed for a week on pain medication until she could see Dr. Wilbur Giles in Little Rock. Dr. Giles performed an MRI and then a surgical procedure called a lumbar laminectomy, removing a large ruptured disc from the lumbar region.
Appellee contends that appellant did not sustain an accidental injury in the course of her employment and that she is therefore not entitled to benefits.
The Administrative Law Judge heard testimony from appellant and from her supervisor, Mr. Clayton Alexander. Additionally, appellant’s medical records were introduced. Despite her testimony to the contrary, the Administrative Law Judge found that appellant did not suffer a specific-incident type injury in the course of her employment, see Ark. Code Ann. § 11-9-102(5)(A)(i) (Repl. 1996), and denied appellant all benefits. The Commission adopted the ALJ’s decision.
The only question for this court to review is whether the decision of the Commission denying benefits to appellant is supported by substantial evidence. Based on the abstracted testimony and medical evidence, we find it is not and reverse and remand to the Commission for an award of benefits consistent with this opinion.
This court reviews decisions of the Workers’ Compensation Commission to see if they are supported by substantial evidence. Deffenbaugh Indus. v. Angus, 39 Ark. App. 24, 832 S.W.2d 869 (1992). Substantial evidence is that relevant evidence which a reasonable mind might accept as adequate to support a conclusion. Wright v. ABC Air, Inc., 44 Ark. App. 5, 864 S.W.2d 871 (1993). The issue is not whether this court might have reached a different result from that reached by the Commission, or whether the evidence would have supported a contrary finding. If reasonable minds could reach the result shown by the Commission’s decision, we must affirm the decision. Bradley v. Alumax, 50 Ark. App. 13, 899 S.W.2d 850 (1995).
To make this court’s review process a meaningful one, the Commission has the duty to translate the evidence on all issues before it into findings of fact. Sanyo Manufacturing Corp. v. Leisure, 12 Ark. App. 274, 675 S.W.2d 841 (1984). Despite this stringent standard of review, we have recognized:
Those standards must not totally insulate the Commission from judicial review and render this court’s function in these cases meaningless. We will reverse a decision of the Commission where convinced that fair-minded persons with the same facts before them could not have arrived at the conclusion reached by the Commission.
Wade v. Mr. C. Cavenaugh’s, 25 Ark. App. 237, 242, 756 S.W.2d 923, 925 (1988) (citing Boyd v. General Industries, 22 Ark. App. 103, 733 S.W.2d 750 (1987)).
With the above standard of review in mind, this court assesses the evidence to see if reasonable persons could reach the same conclusion. Here, the evidence is limited to the testimony of two individuals and the appellant’s medical records.
Only two witnesses testified before the ALJ — the claimant/ appellant and her supervisor, Mr. Clayton Alexander.
The appellant related in great detail the onset of her injury. She recounted a specific time, place, and incident — 2:30 p.m. on September 14, 1993, at the J.C. Penney store where she had been employed for seventeen years, while bending to remove a piece of jewelry from a case to show a customer. The only other witness, Mr. Alexander, corroborated appellant’s story: “[s]he looked very pale and weak . . . she was weak, like I said.” Further, Mr. Alexander admitted that he did not see the incident and, therefore, could not possibly testify that it did not occur the way appellant said it did. Mr. Alexander testified:
Q. Was there any doubt in your mind that she was in bad condition when she left the store, health wise?
A. Yes, I was quite concerned because, like I say, she was pale and weak looking.
Q. Had she been waiting on a customer, do you know?
A. I couldn’t say because I was in the office and received the call.
Appellee did attack appellant’s credibility indirectly on cross-examination with questions about appellant’s prior back injury from an auto accident and with questions on appellant’s proximity to retirement. Also, the cross-examination pointed out the differing accounts of the injury in the medical records.
Based on this limited testimony, the ALJ made the following finding: “Although the claimant testified as to an identifiable time and place there was no specific incident which was related to her employment.” The ALJ translated this perceived deficiency in the evidence into the finding that, “The claimant has failed to prove by a preponderance of the evidence that her back condition arose from her employment with the respondent.” These conclusions are not supported by the testimonial evidence in the record. In fact, they cannot even be inferred from the evidence in the record. While we recognize that the testimony of a party is never considered uncontroverted, Nix v. Wilson World Hotel, 46 Ark. App. 303, 307, 879 S.W.2d 457, 460 (1994), the Commission is not entitled to arbitrarily disregard the testimony of any witness. Reeder v. Rheem Mfg. Co., 38 Ark. App. 248, 252, 832 S.W.2d 505, 507 (1992) (citing Wade, supra).
The only other evidence of record is the medical reports submitted to the Commission. These records are never mentioned in the ALJ’s decision, or in the Commission’s adoption of the ALJ’s decision. Further, these records specifically corroborate appellant’s contention and directly contradict the conclusion of the Commission. In a letter report from Dr. Giles to Dr. Bryant dated September 21, 1993, appellant’s treating physician stated:
She had previously undergone a lumbar laminectomy in Spring, 1993. She had gone back to work and had been asymptomatic with no difficulties until the onset of the present symptoms. This appears to be a new injury and not related to her previous problems.
Her MRI scan shows a large disc at 4-5 on the right with marked root compression.
On physical examination she has limitation in flexion, extension and rotation with paralumbar spasm. She has a positive straight leg raising at 60 degrees on the right with accentuation of dorsiflexion and some mild toe weakness.
I am admitting her to the Baptist Hospital for a lumbar laminectomy.
There is no conflicting medical evidence in the record.
Based on the only evidence in the record —■ both testimonial and medical documentation — it is impossible for us to imagine how fair-minded persons with the same cold record before them could agree that appellant did not suffer a compensable specific-incident injury in the course of her employment. Ark. Code Ann. § 11-9-102(5)(A)(i) (Repl. 1996). While the Commission is the finder of fact, and judging the credibility of witnesses is exclusively within the Commission’s province, see Kuhn v. Majestic Hotel, 324 Ark. 21, 24, 918 S.W.2d 158, 160 (1996), the court cannot presume for the Commission adequate findings of fact to support the Commission’s decision when no basis in the record supports such action. Instead, the ALJ chose to base his decision on the lack of a specific incident. This is not based on the facts in the record, and it is contradictory to his own finding of a specific time and place for the injury. For our review process to be mean ingful, such a decision not based on substantial evidence must be reversed. See Wade, supra, and Boyd, supra.
Based on the medical evidence of appellant’s injury, the appellant’s account of the injury, and the Commission’s inconsistent findings of fact, we find that fair-minded persons could not come to the conclusion of the Commission in denying benefits for appellant’s injury. Therefore, the decision is reversed and remanded for an award of benefits consistent with this opinion.
Reversed and remanded.
Robbins, C.J., and Stroud, J., agree. | [
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John E. Jennings, Judge.
James Earl Mays was charged with the aggravated robbery of Mack’s Liquor Store in Blytheville. He was found guilty by a Mississippi County jury and was sentenced by the court to ten years’ imprisonment. On appeal Mays contends that the evidence was insufficient to sustain the conviction and that the court erred in denying his motion to suppress testimony related to a photographic line-up. We find no error and affirm.
When reviewing the sufficiency of the evidence on appeal, we do not weigh the evidence but simply determine whether the evidence in support of the verdict is substantial. Passley v. State, 323 Ark. 301, 915 S.W.2d 248 (1996). Substantial evidence is that which is forceful enough to compel a conclusion one way or the other and passes beyond mere suspicion and con jecture. Drummond v. State, 320 Ark. 385, 897 S.W.2d 553 (1995). In determining whether there is substantial evidence, we review the evidence in the light most favorable to the appellee, and it is permissible to consider only that evidence which supports the guilty verdict. Williams v. State, 321 Ark. 635, 906 S.W.2d 677 (1995). The question of the sufficiency of the evidence to support a conviction is one of law. Bridges v. State, 46 Ark. App. 198, 878 S.W.2d 781 (1994).
Appellant’s conviction rests primarily on the testimony of two witnesses, Robert Pillow and Joseph Bearden. Robert Pillow was the clerk at Mack’s Liquor Store on the day of the robbery. He testified that at about 2:25 or 2:30 p.m. a man entered the store. The man raised his shirt, showing a gun in the front of his pants and said, “You know what I want.” When Mr. Pillow realized he was being robbed, he opened the cash register and gave its contents to the man. The man took Pillow to the back of the store and told Pillow that he could not go out the front door. Pillow gave the man his keys. While they were going into the back room the bell went off at the drive-through window. Pillow said, “I need to get that,” and the man said, “No, no, just come on.” The man tied Mr. Pillow up, went back in the store and got a half-gallon of liquor, and went out the back door. Pillow testified that the man was in the store for five minutes.
The prosecuting attorney asked whether Mr. Pillow got a good look at the person’s face and Mr. Pillow answered, “I didn’t really pay attention too close because I was scared, I was worried about the gun.” Mr. Pillow described the man as black, “medium-skinned,” in his mid-thirties, and having a clean-cut moustache. Pillow testified that the man weighed 160 to 180 pounds. Then:
Q. Do you see that person today?
A. Well, that fellow looks like him except he’s got, he’s got a beard that he didn’t have that day.
Pillow testified that he identified the person that robbed him from a four-photograph line-up provided by the police officers. Finally, on direct examination:
Q. AH right, sir. Now, do I understand your testimony, are you able to say today that the defendant seated over here is the person except for the facial hair?
A. Yes, sir, he resembles the person very much so except for the facial hair. But, you know, he had, you know, he had a hat on so, you know, from here up, I can’t honestly say that that’s him. I cannot say that.
Then on cross-examination:
Q. Good afternoon, Mr. Pillow. You say you cannot honestly say that this person seated at counsel table is the person?
A. No, ma’am. He just, he looks like the fellow, but like I said, there was a hat on. And, you know, from here down, yes, ma’am, except without the beard.
At the conclusion of cross-examination:
Q. And if I recall your testimony earlier, you were not certain of the person’s identity in the line-up, is that correct?
A. Yes, ma’am.
Q. And you’re not certain today of the person’s identity, is that correct?
A. Yes, ma’am.
Q. Okay.
Joseph Bearden was a liquor salesman calling on Mack’s Liquor Store on the day of the robbery. He testified that between 2:30 and 2:45 p.m. a car pulled up to the drive-through window as he, Bearden, drove up. Bearden knocked on the door and got no response. As he headed back to his car he saw a man come from behind the liquor store. He testified that the man did a “stop- step” like he was going to back up. He positively identified the appellant as the man he saw that day. He testified that “it looked like [the man had] a moustache, but I couldn’t tell if there was much of a beard.”
Ross Thompson, a Blytheville police officer, testified that he showed a photographic fine-up to Mr. Pillow. He testified that Mr. Pillow picked out the photograph of the appellant without hesitation but that Pillow could not unequivocally say that that was the person who robbed him. Officer Thompson also testified that the photographic line-up had been lost within the police department.
In ruling on the defendant’s motion for directed verdict the trial judge said:
THE COURT:
In this case here we have a situation where the victim himself has indicated that he could not positively identify the defendant as the person who robbed him. But on the other hand, he has said in open Court that the defendant resembles the individual that came in the store, that the only difference is that he couldn’t identify him because he said he had hair on his face at this point in time. Also when the photo line-up was presented to him that he again made a statement that he couldn’t positively identify him, the individual there as being the one that perpetrated that robbery, but there were two pictures there that he indicated that looked almost like twins. But, in fact, he did pick out the defendant as being the person who committed the robbery. That coupled with the statement from Mr. Bearden that he saw the defendant behind Mack’s Liquor Store and that upon viewing him first that the defendant halted or paused or acted in a suspicious manner before he moved on down the alleyway.
All of that looked upon in the most favorable light certainly constitutes, in the Court’s opinion, substantial evidence enough to allow it to go to the jury. As you know, the Court is not to weigh the evidence, not to decide whether or not it is evidence that even at a preponderance is substantial. And the Court is going to rule that there is substantial evidence and the matter should go to the jury. The motion for directed verdict is denied.
We think that the trial court’s ruling was correct. The law does not require that a witness’s description be totally accurate. State v. Radford, 559 S.W.2d 751 (Mo. App. 1977). In Davis v. State, 284 Ark. 557, 683 S.W.2d 926 (1985), the supreme court said, “The accuracy of the [victim’s] identification of appellant and the alleged weaknesses of that identification were matters of credibility to be resolved by the jury.” While Mr. Pillow was not absolutely certain in his identification of appellant as the robber, appellant’s conviction does not rest on Mr. Pillow’s testimony alone. Under the circumstances the jury could reasonably infer that the man who robbed Mr. Pillow was the same man seen behind Mack’s Liquor Store by Mr. Bearden. Mr. Bearden positively identified the man he saw as the appellant. The circuit judge did not err in denying the motion for directed verdict.
After the State’s opening statement appellant asked the court to rule that any references to the photographic line-up would be inadmissible, because the photographs had been lost by the police department. The court denied the motion. We find no error in the court’s ruling.
Testimony about an out-of-court identification is generally admissible. See Hilton v. State, 278 Ark. 259, 644 S.W.2d 932 (1983); Jacobs v. State, 316 Ark. 698, 875 S.W.2d 52 (1994). Appellant relies, in part, on Hamm v. State, 296 Ark. 385, 757 S.W.2d 932 (1988). In Hamm the supreme court held that when the State lost the tape recording of the defendant’s confession it was error to admit the transcription. The court expressly noted, however, that oral testimony about the confession was admissible.
Appellant’s reliance on Bowden v. State, 297 Ark. 160, 761 S.W.2d 148 (1988), is misplaced. Bowden involved a five line-up and the issue of whether the defendant waived his right to counsel. Neither issue is involved in the case at bar.
For the reasons stated the judgment of the trial court is affirmed.
Robbins, C.J., and Griffen, J., agree.
Neal, Crabtree, and Roaf, JJ., dissent. | [
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Smith, J.
On May 22, 1920, appellant filed suit against appellee company in the municipal court of Tex-arkana, and summoned the State National Bank of that city as garnishee. A bond was given, and the attachment was dissolved and the garnishee discharged. On June 18, 1920, appellee filed its answer, and, by consent, the cause was set for trial on July 1, 1920. The cause was continued and reset for trial on July 20. On that day appellant appeared by his attorney, and appellee failed to appear, and judgment was rendered against it for the amount sued for.
On July 29 appellee filed its motion to set the default judgment aside, and as grounds therefor alleged that the junior member of the firm of attorneys which had charge of the case was confined in a hospital, and that the senior member of the firm did not know the case had been set for trial. This motion was granted on August 18, 1920, the default judgment was set aside, and the case reset for trial on September 1, 1920. On this last-named day appellant appeared in the municipal court and moved the court to set aside the order vacating the default judgment. This motion was granted on September 3, and the order of August 18 was vacated and set aside, and appellee appealed from that order to the circuit court. On September 6 appellant filed in the circuit court a motion to dismiss appellee’s appeal. This motion was granted, and the appeal was dismissed.
On September 14 appellee filed in the circuit court its petition for certiorari, alleging the facts set out above, and further that at the time the original default judgment was rendered appellant had appeared by his attorney, who represented to the court that he believed the defendant (appellee) had no defense, that the answer and bond had been filed to release, money to 'meet a payroll, and that this representation was false and had misled the court and induced it to render judgment by default. That, after filing this motion to set aside the default judgment, appellee’s attorney had asked appellant’s attorney when the motion could be taken up in the court, and appellant’s attorney answered that they would present the motion at any time that was convenient to both parties. That, relying upon said statement, appellee allowed said motion'to remain on file without being acted upon by the court until August 17, on which date he was' advised that the motion would be heard the next day, and on that day the default judgment was set aside. It was further alleged in the petition for certiorari that the order of the court made on September 3, setting aside its order of August 18, was void, for the reason that the court was without jurisdiction to make it, as the judgment, .by the order of August 18 had ceased to exist, and that the petitioner (appellee) had a valid defense to said suit, but the nature of the defense was not alleged.
On September 21, 1920, appellant filed his petition in the circuit court for certiorari to quash the order of the municipal court made on August 18, 1920, setting aside the default judgment rendered July 20, 1920. This petition alleged that the order which it seeks to quash was void because more than ten days had elapsed after the default judgment had been rendered before the court was asked to set it aside, and the court was thereafter without jurisdiction to make that order. It was there alleged that petitioner for this second writ of certiorari (appellant) had never been advised of the filing of the motion to vacate the dfefault judgment and had no notice of its pendency until it had been granted. An answer was filed to this petition by appellee, in which it reiterated the facts alleged in its own petition for certiorari.
The two petitions were heard together, and the court overruled a demurrer filed by appellant to appellee’s petition, and granted appellee’s petition for certiorari, and quashed the order of the municipal court made on September 3 vacating and setting aside the order of August 18, and remanded the case to the municipal court for trial. The court denied appellant’s petition for cer-tiorari to quash the order of August 18. A motion for a new trial was filed in which the orders of' the court were assigned as error.
The municipal court of Texarkana was created by act 138 of the Acts of 1917 (Acts 1917, p. 734), and section 7 thereof makes all provisions of the general law applying to justices of the peace and not inconsistent with the act applicable to that court.
The proceeding sought to be reviewed by this appeal is not one to set aside a judgment as having been obtained by fraud, but is a proceeding by certiorari to quash an alleged void order of the municipal court. The validity or invalidity of the order sought to be quashed depends upon the construction of section 6448, C. & M. Digest. This section reads as follows:
“Judgment of dismissal for want of prosecution, or judgment by default may be set aside by the justice at any time within ten days after being rendered, if the party applying therefor can show a satisfactory excuse for his default, and -a meritorious cause of action or a meritorious defense, whereupon a new day shall be fixed for trial, and notice given to the opposite party; and any execution which may in the meantime have been issued shall be recalled in the same manner as in cases of appeal, and the canse shall proceed to trial as though no such judgment had been taken. ’ ’
This section does not deal with the practice in a case where the parties appeared and a trial was had before .the court. Section 6449, C. &. M. Digest, governs in that case, and requires a notice of ten days of the motion for a new trial or a rehearing.
This court, in the case of Frizzell v. Willard, 37 Ark. 478, held that no notice was required of the filing of a motion under section 6448 until the default judgment had been set aside and a new day fixed for trial. Notice of that fact is required by the statute. It thus appears that it was the legislative will that the parties seeking the benefit of this statute should move expeditiously and within the time limited. This section 6448, under which appellee proceeded, is a special statutory proceeding. It was not intended to deprive one of his right to have a judgment set aside as having been obtained by fraud, nor was it intended to affect one’s right of appeal. It was designed to afford relief to the litigant whose suit was dismissed for want of prosecution or against whom a judgment by default had been taken where the litigant could show a satisfactory excuse for his delay and that he had a meritorious cause of action or defense. But this relief can be granted only where the litigant proceeds within the time limited by law, towit, ten days after the rendition of the judgment. This means that the party must file his motion and invoke the order of the court thereon within ten days. If this is done, and for any reason the court does not act thereon, jurisdiction of the motion is still retained by the court.
This is the construction which the Supreme Court of California gave to a somewhat similar statute of that State in the case of Spencer v. Branham, 41 Pac. 1095, 109 Cal. 336. There a judgment by default was entered on April 20 against Leonard by a justice of the peace. Within the ten days allowed by law, Leonard filed a motion to set the judgment aside, and alleged an excuse for liis neglect. The motion was set for hearing on May 8, and was heard and granted on that day, and the cause f-ct down for trial. Thereafter a proceeding was brought to prohibit the trial on the ground that the justice liad no jurisdiction to grant the motion because it was not made within ten days of the trial. The court there said: “The question then is, when a motion must be made upon notice within a given period, can a party extend liis own time by filing a written motion within the period, and giving notice of a hearing of the motion at a time after the period has expired? To ask the question is to answer it. The application for relief must be by motion, and ‘making and not filing a written application for such rule or order is not sufficient. The attention of the court must be called to it, and the court moved to grant it.’ People v. Ah Sam, 41 Cal. 645. Here, although the attention of the court may have been called to it, no present action was requested.” The court added, however: “If the motion had been made, had the court continued the hearing for argument, or for further evidence, it would not have lost jurisdiction, for in such case the application would have been made in time. ’ ’
In this case, as in that, the motion to vacate was filed within the time limited by law, but in this case, as in that, the ruling of the court was not invoked within the ten days. This fact appears from the recitals of ap-pellee’s petition for certiorari. Appellee seeks to excuse that failure by alleging an agreement with opposing counsel to take the motion up at any time when it was mutually convenient. But the court made no order in regard to this motion, and was not asked to rule thereon, within the ten days, and appellee relied upon the agreement at its peril. The agreement was in contravention of the statute, and the parties could not thus enlarge the time for invoking the action of the court, which the statute provided.
It follows, therefore, that the municipal court should not have set the default judgment aside, and the circuit court shotüd not have set aside the order of the municipal court vacating its order which set aside the default judgment.
The judgment of the court below is therefore reversed, and the cause will be remanded with directions to the circuit court to enter an order directing the municipal court to vacate its order which set aside the judgment rendered on July 20. | [
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Humphreys, J.
Appellees instituted suit against appellant in the circuit court, Western District of Carroll County, to recover damages in the total sum of $696.62, as per itemized statement incorporated in the complaint, on account of the alleged negligence of appellant in failing and refusing to ship two cars of stock on the 22d day of November, 1919, or to deliver same upon the Kansas City market within a reasonable time after said date.
A demurrer was filed to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was overruled, to .which ruling of the court appellant objected and excepted.
Appellant, reserving its exceptions to the ruling of the court on the demurrer, filed an answer, denying the material allegations of the complaint.
The cause then proceeded to a hearing, and at the conclusion of the evidence appellant requested a peremptory instruction directing a verdict in its favor. The court refused to give the instruction, to which ruling appellant objected and excepted. The cause was then submitted to the jury upon the pleadings, evidence and instructions of the court, resulting in a verdict and judgment against appellant for $475, from which an appeal has' been duly prosecuted to this court: '•
Appellant first contends that the court committed reversible error in overruling the demurrer to the complaint. It is asserted that no fact of negligence is alleged in the complaint, the only allegation being that when appellees “arrived at the stockyards it was dark and the stock pens were all full of other stock, and there was no place available in which to drive their stock for shipment.” Appellant argues that common carriers can not be held in damages for a failure to furnish shipping facilities unless it be alleged and shown that the facilities. furnished were inadequate for the accommodation of all normal business at the shipping station, and that the allegation in the complaint that the stock pens were all full of other stock when appellees’ stock arrived was insufficient because it failed to allege that the accommodations were insufficient to accommodate the normal business at the Eureka Springs station. We deem it unnecessary to pass upon this question, as, in our opinion, the complaint sufficiently alleged other facts of negligence upon which to base a recovery. The complaint, in substance, alleged that appellees, on Tuesday before Saturday, November 22, 1919,' engaged two cars to ship a. car of cattle and a car of mixed stock on the 22d day of said month; that, relying upon the promise of appellant to furnish the cars, they purchased the cattle and drove them a distance of eighteen miles to the shipping pens of appellant at its station in Eureka Springs, arriving with the cattle after dark; that the stock pens and grounds around them were filled with cattle and hogs, and that they were advised by appellant to take their cattle across the track and a public road into an adjoining field until they could be loaded; that appellees‘were unable to get their stock out of the field across the railroad track and public road into the stock pens after they were vacated of the other stock therein on account of the darkness of the night; that they were required to keep their stock at the station several days before the same were shipped; that, by reason of the failure of appellant to deliver said stock upon the market at. a reasonable time after November 22, 1919, appellees were damaged, on account of extra expense, shrinkage in weight of cattle, downward bréale in the market and other causes, in the total sum of .$696.62. The following is a verbatim copy of one of the allegations in the complaint: “By reason of the defendant company having failed, neglected and refused to provide a way for the shipment of plaintiff’s, stock on the 22d of November, 1919, and by reason of the failure of their stock to arrive upon the Kansas City market at' a reasonable time when it should have arrived, immediately after the 22d of November, 1919, these plaintiffs have sustained a total loss as above itemized of $696.62.” These allegations, in connection with the substance of others, amount at least to an allegation that appellant received the stock for shipment on the 22d day of November, 1919, and failed to ship them out for three or four days thereafter, from which act damage resulted to appellees. Unexplained, this was an unreasonable delay and constituted an act of negligence upon which to base an action for damages against a common carrier. The court did not therefore err in overruling the demurrer to the complaint.
Appellant’s next and last insistence for reversal is that the evidence is insufficient' upon which to establish any liability against appellant. The facts, in substance, are as follows: On the 18th day of November, 1919, ap-pellees applied to appellant’s agent at Eureka Springs for two cars to ship one car of cattle and a mixed ear of stock on the 22d of November following. The evidence is in dispute as to whether the agent agreed to furnish two cars or whether he simply promised to do the best he could. In reliance upon the promise of the agent to furnish the cars, according to appellees’ testimony, they purchased the stock in Benton County and brought it to Eureka Springs for shipment on said date, arriving at the stock pens at about 5:30 or 6 o’clock p. m. J. B. Mallory arrived in advance of the stock and obtained a shipping contract, or bill of lading, for one car and had the shipping contract or bill of lading filled out for the other car to be delivered when one of his helpers by the name of Evans, who was to accompany the car to Kansas City, arrived. Bills of lading-, or shipping contracts, for eight cars of stock were issued during the afternoon, four of which were upon orders for cars made subsequent to ap-pellees’ order or request for cars. During the afternoon appellee Mallory discovered that the stock pens and the grounds around same had been entirely occupied with cattle and hogs brought there for shipment. He talked to the agent as to where he should put his stock and was advised to put them in a field across the railroad and a wagon road from the stock pens, around which there was a very poor enclosure. The cattle and hogs on the ground near the stock pen were held by guy ropes and guards. Some of them got away before being loaded. After the darkness came on it was discovered by appel-lees that it was impossible to drive their cattle from the field in which they had been placed across the wagon road and over the railroad track or under a culvert through a running stream without a part of them escaping. They then notified the .agent who had come on duty that it was impractical and impossible to load that night. The train to take the stock arrived at 4 a. m. Sunday morning. According to the evidence of appel-lees, only one car remained after all stock in the pens and immediately surrounding it had been loaded. Appellant’s testimony was to the effect that they furnished appellees with two cars, which were refused by them. No other cars for shipping the cattle were furnished until about 4 o’clock the following Tuesday afternoon, after written notice had been given to the railroad demanding-immediate shipment. The cattle .did not arrive in Kansas City until Thursday morning, on Thanksgiving day, which was a national holiday, and could not be sold until the following day, and, when sold, were sold on a declining market. The evidence of appellant was to the effect that when appellees declined to attempt to load on Saturday night, or Sunday morning, they were informed that cars could not be furnished before Monday or Tues day. There was testimony on the part of appellees as to the amount of damages sustained on account of the delay in shipment, which exceeded the amount recovered..
This evidence sufficiently establishes the fact that the cattle were accepted-for shipment on November 22, 1919, and were not shipped until late in the afternoon of the 25th day of said month. Giving the testimony offered by appellees its strongest probative force, it was impossible for them to load the cattle on Saturday night, or Sunday morning, and the cattle remained in the stock pens after the other cattle were shipped until late in the afternoon of the 25th of said month. It is the duty of a common carrier accepting live stock for shipment to ship and deliver same without unnecessary delay. A delay in the shipment of stock from Saturday until the following Tuesday is an unreasonable delay unless there was some good and sufficient cause to justify it. St. L. & S. F. Rd. Co. v. Pierce, 82 Ark. 353. The burden to establish the justification of a delay for such a length of time necessarily rests upon the common carrier. In the instant case, no cause was assigned by appellant for this unreasonable delay. There was evidence to support the verdict and judgment.
No error appearing, the judgment is affirmed. | [
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Habt, J.'
(after stating the facts). Section 3506 of 'Crawford & Moses’ Digest provides that during the pen-dency of an action for divorce or alimony, the court may allow the wife maintenance and a reasonable fee for her attorneys, and enforce the payment of the same by orders and executions and proceedings as in cases of contempt.
In Kincheloe v. Merriman, 54 Ark. 557, the court, in referring to this statute, said that an allowance under it was in the sound discretion of the court, and, before the court would make the allowance, the wife must show merit.
The court further held that in this State an attorney can not recover against the husband in an action at law for services rendered the wife in a suit for divorce. The reason given was that prosecuting or defending a suit for divorce has no relation to her protection as a wife. The liability is therefore purely statutory, and is not a debt by contract within the meaning of article 9, section 1 of the Constitution of 1874, which provides, in effect, that the personal property of any resident of this State, who is not married, in specific articles to be selected by such resident, not exceeding fin value the sum of $200, in addition to his wearing apparel, shall be exempt from seizure on attachment or sale on execution or other process from any court, issued for the collection of any debt by contract.
It will be noticed that, although marriage is a civil contract, yet the allowance in favor of the wife for attorney’s fee against her husband is, under the authority cited above, statutory and is not founded upon a contract, express or implied, within the meaning of the Constitution.
But counsel for appellant claims that the exemption should have been allowed under section 5546 of Crawford & Moses’ Digest relating to the exemption of time wages of laborers. The section, in substance, prescribes that the wages of all laborers and mechanics, not exceeding their wages for sixty days, shall hereafter be exempt from seizure by garnishment, or other legal process, provided that the defendant in any case shall file with the court from which such process shall be issued, a sworn statement that the sixty days’ wages claimed to he exempt, is less than the amount exempt to him under the Constitution of the State, and that he does not own sufficient other personal property, which, together'with the said sixty days’ wages, would exceed in amount the limits of said constitutional exemption.
In Porter v. Navin, 52 Ark. 352, in construing this section, the court held that the right to claim the exemption is limited to persons entitled to the exemption under the Constitution, and does not extend to nonresidents. The court said that the statute only gave the laborer the right to claim as exempt wages which are less than the value of the personal property exempt to him under the Constitution, and thus manifests the intent to limit the right of exemption to those entitled to exemption under the Constitution.
As we have already seen, the Constitution only gives the right of exemption to debts by contract, and the allowance for attorney’s fees to the wife in a divorce proceeding is purely statutory and not founded on contract.
Therefore, the court properly disallowed the claim of Bube Walker for exemption, and the decree will be affirmed. | [
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Hart, J.
This case comes before us on certiorari to review the judgment of the circuit judge of Lincoln County giving to Mrs. Sallie Hoover the custody and control of Zula May Palmertree, a girl eleven years old. The facts are as follows:
Zula May Palmertree was born in September, 1908, and her father, Thomas A. Palmertree, and her mother went to Memphis while she was an infant. The father and mother separated several times and finally the father moved to Arkansas. The mother kept the child until her death, about the 8th day of January; 1915. Soon after that the father had the child sent to him in Lincoln County, Arkansas. The child was then about six years of age. In a short time after the child was brought to Arkansas, the father gave her to a son of Mrs. Sallie Hoover where she remained about one month. The father then thought of placing the child in an orphan’s home, but, at the instance of Mrs. Sallie Hoover, he gave the child to her when she was about six years old, and the child remained in her custody until her father’s death about five years later.
Mrs. Sallie Hoover was a witness for herself. According to her testimony, the father of Zula May Palmer-tree gave her the child and told her that she could have the child as long as she lived. Mrs. Hoover is now fifty-nine years of age and resides with two unmarried sons and an unmarried daughter, on a farm. She does not own any land herself, but her two sons each have a farm comprising a hundred acres of good land. They have a good school in the neighborhood from six to nine months during the year. Zula May has been sent to this school and is now ready for the fifth grade. She has worked in the fields some, but has attended school regularly. Mrs. Hoover has become very much attached to the child and loves her like one of her own children. The relatives of the child have never given her anything since she has been in the custody of Mrs. Hoover. Zula May’s father left her an insurance policy of $1,500 and a very small amount of personal property when he died. He resided in Lincoln County near Mrs. Hoover all the time she had possession of Zula May. He drank and gambled some, but was regarded as a kind-hearted man and loved his daughter.
Several witnesses who lived in the neighborhood testified that Mrs. Hoover was an excellent woman and had cared for Zula May as if she was her own child. Two of. these witnesses said that the father of Zula May had told them that he intended for Mrs. Hoover to have Zula, May and did not intend that she should be raised by his sister in Memphis, who is one of the petitioners for the custody of the child in this case.
Zula May Palmertree was a witness in the case. According to her testimony, she is eleven years old and lives with Mrs. Sallie Hoover in Lincoln County, Arkansas. She has lived with Mrs. Hoover about five years. She thinks a great deal of Mrs. Hoover and is treated well by her. She remembers living with Mrs. Lela P. Rosen-stein a little while. She did not live with her father after the death of her mother. Mrs. Hoover’s sons treat her as if they were her own brothers, and Mrs. Hoover’s daughter treats her like a sister. She would rather live with Mrs. Hoover than to go with Mrs. Rosenstein. Mrs. Hoover has never whipped her and has always treated her well. She attends church and Sunday school, which is about one mile away. Mrs. Hoover goes to Sunday school and is a member of the church. Her sons and daughter go to church.
Mrs. Lela P. Rosenstein was a witness for herself. According to her testimony, her brother, Thomas A. Palmertree and Ms wife did not get along well together. They frequently separated, and she kept Zula May during the periods of their separation. After the father left MempMs, the mother continued to reside there and kept Zula May with her. Finally the mother was taken sick, and, realizing that she was about to die, gave Zula May to Mrs. Rosenstein. After Mrs. Palmertree died, the father sent for Zula May and had her brought to Arkansas. This was some five years before he died. Mrs. Rosenstein did not see Zula May any more after she sent her to Arkansas until she filed her petition in the present case after Zula May’s father had died.
Mrs. Rosenstein was divorced from her first husband in the fall of 1914, and married her present husband soon thereafter. Her present husband is a merchant and worth about $35,000 and has a good income. He has a good residence and is well able and suited to have the care and custody of Zula May.
Other witnesses testified that Mr. and Mrs. Rosen-stein had only one child; that they loved children and were well able to provide for Zula May. Mrs. Rosen-stein’s mother lived with her, and they both loved Zula May. Mr. Rosenstein promised to bring up Zula May at his own expense and save her insurance money and the accumulated interest for her. In this connection it may be also stated that Mrs. Hoover said that she did not want Zula May’s money; that all she wanted was the child.
The authority of a parent over his child, has been generally said to arise from the duty he is under to maintain, protect and educate it. Hence the weight of authority, and the adjudicated cases in this State sustain the doctrine that the right of a parent to the custody of a child can not be defeated by a mere parol gift of the child by the parent to another. While a parent can by agreement surrender the custody of the child so as to make the custody of him to whom he surrenders it legal, yet the gift is not irrevocable, and in all controversies subsequently arising the matter of primary and con trolling importance is the interest and welfare of the child. Washaw v. Gimble, 50 Ark. 351; Coulter v. Sypert, 78 Ark. 193; Clark v. White, 102 Ark. 93 and cases cited; Mantooth v. Hopkins, 106 Ark. 197 and case notes to 6 A. & E. Ann. Cas. at p. 939, and Ann. Cas. 1915 B, 1015 at 1019. Hence, in deciding the delicate question of awarding the custody of a child, the court seeks to promote its physical, mental and moral development.
In the instant case both parties have expressed a willingness to rear the child at their own expense and have declared their great love for the child. Mrs. Bosen-stein is an aunt of the child and her husband is a well-to-do business man in the city of Memphis, Tennessee. They have only one child, and they expressed themselves as willing to rear Zula May at their own expense and to give her the amount of insurance left her by her father with the accumulated interest when she reaches full age. They have the reputation of being kind-hearted people and are well respected by their friends and acquaintances. They had not seen the child for five years before filing the petition for her custody in this case.
On the other hand, Mrs. Hoover, while poorer in this world’s goods, lives with two unmarried sons, who have good farms and are taking care of her. It has been urged that they might marry and leave Mrs. Hoover to shift for herself. The family is shown, by the record, to be a very affectionate one, and there is nothing to indicate any separation of them. Zula May testified that Mrs. Hoover’s children appear to love her as if she was their own sister.' It might with equal propriety be said that the Bosen-steins might grow tired of her and place her in an orphanage or other institution. They live beyond the jurisdiction of the court, and it would have no way of compelling them to care for her.
Another thing- to be considered is that ties of affection have grown up between Mrs. Hoover and the child. The father saw fit to place her in the custody of Mrs. Hoover. While he was addicted to drink, the evidence shows that he was a kind-hearted man and loved his daughter. He evidently thought that he was acting for her best interest in giving her to Mrs. Hoover. So far as the record discloses, Mrs. Rosenstein did not write to Zula May after she came to Arkansas or make any effort to induce the father to return the child to her, although, if she had made any inquiry, she could have ascertained that the father had given the child to Mrs. Hoover. The child testified that she wished to continue to live with Mrs. Hoover. She has been sent regularly to school and to church. Her testimony shows that she is intelligent and is capable of judging to some extent for herself. Courts will consult the inclination of an infant if it be of a sufficiently mature age to judge for itself. 2 Kent’s Com. (14 ed.), p. 194. Of course the court should not listen to the mere whim of the child, but it should consider the child’s feelings, its affections, and its probable contentment in the future. The record discloses that both parties love Zula May and would try to make her happy; and are capable of taking care of her.
When we consider, however, that her father was a resident of this State and chose to give her to Mrs. Hoover, coupled with the fact that Zula May has lived with Mrs. Hoover for five years, and that the warmest feelings of affection have sprung up between them and now exist, the court is of the opinion that the circuit judge did not err in awarding the custody of Zula May to Mrs. Hoover.
The judgment will therefore be affirmed. | [
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McCulloch, C. J.
Appellant was convicted in the circuit court of Johnson County of the statutory crime of obtaining carnal knowledge of a certain unmarried female, by virtue of ‘ ‘ a false or feigned expressed promise of marriage.” Crawford & Moses’ Digest, § 2414. The principal contention here is that the testimony is not sufficient to sustain the verdict, in that the testimony of the injured female was not corroborated with respect to the alleged promise of marriage.
Bertha Ketcheside, who at the time of the commission of the offense was a girl of about eighteen years of age, resided with her widowed mother near the town of Knoxville, in Johnson County, and appellant, a young unmarried man, lived in the same community. According to the testimony of the girl, she and appellant became acquainted with each other in December, 1917, and from that time until' the first act of sexual intercourse between them he visited her frequently and his attentions to her were marked. He visited her every Saturday night and 'Sunday and occasionally other nights during the week. They became engaged to be married in May, 1919, and the first act of intercourse occurred on the night of the second Saturday in October, 1919. On that day, according to the girl’s testimony, they set the date for their marriage, which was to take place at the county fair to be held on October 16, 1919. The act of sexual intercourse was repeated a number of times after the first act, and a few months later it was found that the girl was pregnant, and appellant ceased to visit her. They met at the county fair at Clarksville on October 16, for the purpose, as the girl supposed, of being married, but appellant asked for a postponement until the following Sunday, and when they returned home that night he declared to her that he would not marry her at all. The baby was horn on April 7, 1920. This is the girl’s narrative of her relations with appellant, who admitted on the witness stand that he had intercourse with her at the first time and place which she described, and frequently thereafter as late as in December, 1919, but he denied that he had ever promised to marry the girl.
The alleged acts of sexual intercourse being admitted, corroboration of the testimony of the injured girl-on that issue was not essential to a conviction. It was, however, essential that her testimony should be corroborated as to the alleged promise of marriage, and we are of the opinion that there was sufficient corroborating testimony. She testified that appellant visited her weekly and at times of tener than that for a period of about a year, and that about the time of their engagement in May, 1917, his attentions to her were almost entirely exclusive of the attentions to her of any other young man. The girl’s mother corroborated her testimony in this respect and stated that appellant visited the girl frequently — always as often as once a week and sometimes oftener — and that during the summer of 1919 no other young men were visiting her. This is sufficient to constitute corroboration of the testimony of the injured girl, and was a circumstance which warranted the inference that there was an engagement between them to marry. Lasater v. State, 77 Ark. 468. In addition to those circumstances, we are of the opinion that corroboration is found in the contents of a letter shown to have been written by appellant to the injured girl on August 10, 1919, in which he referred to the arrangement for them to be married at Clarksville on October 16. The girl produced the letter at the trial and testified that it was one that she received from appellant, and that she kept it in a drawer at her mother’s house with other letters from him and had burned the others, but by accident this one had not been burned. The girl’s sister testified that this letter was in the same handwriting as the other letters which she had seen in the drawer. Appellant admitted that he had been carrying on correspondence with the girl. This testimony, when taken together, warranted the jury in finding that the letter produced was written by appellant, and, if so, there can be no question that the language of the letter constituted abundant corroboration of the girl’s testimony with reference to the promise to marry.
Error of the court is assigned in refusing to give the following instruction:
“You are instructed that social attention on the part of defendant is not in itself corroboration, unless you find that such attention was exclusive, and was such as to raise the natural presumption that an engagement existed. In other words, to amount to corroboration, social attention must he such as usually exists, or is practiced, between parties who are engaged to he married. ’ ’
This instruction was erroneous in telling the jury that the social attentions on the part of appellant to the girl could not be taken as corroboration unless such attentions were exclusive. This amounted to an instruction on the weight of the evidence, for it can not be said as a matter of law that the testimony of marked social attentions by a young man to a girl is without force as a circumstance indicating a promise to marry merely because such attentions were not exclusive. There may be cases where visits and social attentions of young men are so infrequent that it should be said as a matter of law they were not sufficient to carry any force as testimony to establish a promise of marriage, but it would be going too far to say that, because the attentions were not exclusive of the attentions of the man to other females, or of the attentions of other men to the injured female in question, they are without probative -force as indicating-promise of marriage. The court therefore properly refused to give this instruction.
Counsel also insists that the court erred in refusing to give instruction number 5, which told the jury that there must be corroboration of the promise of marriage as well as of the alleged act of intercourse, but this was fully covered by another instruction given on the court’s own motion, and it was not error therefore to refuse the instruction requested by appellant, even though it was correct in form.
We find no error in the record, and the judgment is therefore affirmed. | [
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McCulloch, C. J.
Appellant is a banking: corporation engaged in business in the city of Blytheville, -in this State, and during the antumn of the year 1919 appellee, a farmer living eight or ten miles out in the country from Blytheville, was one of its depositors. He claimed that he made a deposit of $250 on October 17, 1919, which does not appear to his credit, and on the refusal of the hank to place it to his credit he instituted this action to recover that sum.
The issues in the case are whether the amount was deposited by appellee, as claimed by him; whether the deposit was received by an employee of the bank, if at all, at such time as he was authorized to receive de-dospits; and whether appellee is precluded from recovery of the sum by his failure, within apt time, to make objection to the account rendered him by the bank.
Appellee was a tenant on the farm of a Mr. Bay, who was formerly the president of appellant bank, and at the time of the transaction in controversy was one of its directors. According to appellee’s testimony, he brought cotton to Blytheville on October 17, 1919, and after selling it he and Mr. Gray had a settlement of their accounts, and he paid Mr. Gray a small balance due him, and, having the sum of $250 left out of the proceeds of the cotton, he deposited it'in appellant bank. He described the method of deposit as follows: That he counted out the money to Mr. Gay, who made out a deposit slip and handed it to Mr. Cheatham, the assistant cashier, who accepted the money and placed the letters O. K. on the deposit slip with his initials attached. This was after the usual closing time of the bank, but the assistant cashier was in the bank at the time and received this deposit. Appellee testified further that he was accustomed to making deposits in this way after the usual banking hours for the reason that he came a long distance with his cotton, and did not usually sell it until after the bank closed. There was other testimony tending to show that it was the custom of the bank to receive deposits after the usual banldng hours.
The testimony adduced by appellant tended to show that the money was never received by the bank or any of its employees. Cheatham testified that he had no recollection of the deposit, and it is shown by his testimony and that of other employees that the deposit had never been entered on the books of the bank, and that the amount of funds in the bank did not indicate that they exceeded the amount entered on the books. Mr. Cheatham also testified that the initials on the deposit slip held by appellee were not in his handwriting.
On October 21 appellant sent to appellee, by mail, a statement of his account which did not show this deposit. The statement concluded with the following notice:
“This statement is furnished you instead of balancing your pass book. It saves you the trouble of bringing your pass book to the bank and waiting for it to be balanced. These statements will be found very convenient to cheek up and file. All items are credited subject to final payment. Use your pass book only as a receipt book when making deposits.”
Another statement was furnished in like manner on December 15, 1919. There is a conflict in the testimony as to when appellee made objection to the bank that his account was not correctly set forth in the statement furnished to him. He testified that he made the discovery in three or four days after he received the statement by checking up the account with his deposit slips at home; that because of the fact that Mr. Gay. was one of the directors of the bank he had made the deposit through the latter, and waited to see him before making his protest to the bank, and that it was several weeks before he could find Mr. Gay in town. He testified that at the first opportunity he presented the matter to Mr. Gay, and that they went to see the cashier of the bank, and presented the deposit slip showing the deposit of this amount on the date mentioned.
The issues were properly submitted to the jury, and the court, among other instructions, gave the following: “Even though you may believe from the evidence that the .deposit- in question was received by the officers of the bank, if you further find and believe from the evidence that thereafter the plaintiff Boshears received a statement or statements from the bank showing the amount of the deposits made by him and the charges against his account, as shown by the vouchers, and upon receiving such statement or statements he did not in a reasonable time thereafter notify the bank of the errors here complained of and that such failure upon his part to so notify the bank occasioned injury to the bank, you will find for the defendant.”
The contention of appellant’s counsel is that the court should have given a peremptory instruction, for the reason that the undisputed evidence shows that the money was received by the bank’s employees, if at all, after banking hours when there was no officer to receive such deposit and also because the undisputed evidence shows that appellant waited an unreasonable length of time before he made objection to the statement sent to him omitting this deposit. We think the contention of counsel in both respects is unfounded. There is testimony tending to show that it was the custom of the employees of the bank to receive deposits in the bank after the usual banking hours for the purpose of accommodating belated customers. The testimony also warranted a-submission of the issue as to whether or not the objection made by appellee to the statement of his account was within a reasonable time. The rule approved by this court in several cases was stated by the Supreme Court of the United States in Leather Manufacturers’ National Bank v. Morgan, 117 U. S. 96, as follows: “While no rule can be laid dowin that will, cover every transaction between a bank and its depositors, it is sufficient to say that the latter’s duty is discharged when he exercises such diligence as is required by the circumstances of the particular case, including the relations of the parties, and the established or known usages of banking business.” Citizens Bank & Trust Co. v. Hinkle, 126 Ark. 266; Bank of Black Rock v. B. Johnson & Son Tie Co., 148 Ark. 11.
Considering the circumstances under which the alleged deposit was made and the circumstances under which appellee was placed when he received the notice omitting this deposit, we think that the trial jury was warranted in drawing the inference that appellant proceeded with proper diligence in presenting his protest to the bank, and that it was made within a reasonable time, considering all those circumstances.
The testimony was conflicting as to whether or not the deposit was actually made, hut there was sufficient evidence to warrant the jury in finding that appellee deposited the sum mentioned in the manner which he described in his testimony.
Judgment is therefore affirmed. | [
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Hast, J.
(after stating tíre facts). It is first insisted that the conveyance of lot 2 on which the store building was situated was void because it was in violatipn of our bulk sales law. Under it the sale in bulk of any part of, or the whole stock of merchandise and the fixtures pertaining to the conduct of any such business otherwise than in the ordinary course of trade is void against the creditors of the seller, unless the provisions of the act in regard to such sale are complied with. Crawford & Moses’ Digest, section 4870.
It is contended that the storehouse is a fixture under the statute. The statement of the proposition negatives its soundness, and we need only say that the statute refers to the trade fixtures connected with the business and not to the building in which the business is carried on. The building itself is a part of the ground on which it is situated.
It is also sought to set aside the conveyance of lots 2 and 3 in block 22 in the town of Womble, on the ground that they were made in fraud of creditors, and in this contention we think counsel is correct.
In regard to lot 3, but little need be said. W. 0. Robbins made a deed to it to his father, B. Robbins, on the 5th day of January, 1919, and closed his store on account of insolvency on the first of February of the same year. His father allowed him $50 for the lot to be applied on the indebtedness which the son owed the father. The evidence showed the-lot was worth'from $150 to $200. The father visited the store of his son almost daily, and •father and son were seen in frequent-and apparently earnest conversations.
It is fairly inferable,'under the circumstances, that the insolvent condition of- the son must have been known to the father at the -tiine-he made the purchase, although .the father denies'this-to-be the faet.- Therefore, the-court was: correct in" holding' the conveyance fraúdulént.' Den nis v. Ball-Warren Commission Company, 72 Ark. 58, and Godfrey v. Herring, 74 Ark. 186.
The chancellor was also correct as to his finding with regard to lot 2. This was the lot upon which the storehouse in which W. 0. Robbins carried on his business was situated.
W. E. Womble, who sold the property toW. 0. Robbins, testified that it was worth $800. For the reasons above given, B. Robbins must have known that his son was insolvent at the time that it was agreed that the deed to said lots should be made to him upon the payment to Womble of the balance of the purchase money. The transaction was had at a time when Womble was threatening to foreclose his lien and when the undisputed proof shows that W. 0. Robbins was insolvent. The only other consideration paid was the sum of $’85 which B. Robbins said that he allowed to his son for Womble dn the son’s indebtedness to him.
W. 0. Robbins owed Womble $425 as balance of the purchase money. When Womble agreed with W. 0. Robbins to sell him lot 2 and executed to him a bond for title, the effect of the contract was to create a mortgage upon the lot in favor of Womble to secure the balance of the purchase money. Mamoaring v. Farmers’ Bonnie of Commerce, 139 Ark. 218. When W. 0. Robbins purchased lot 2 and received a bond for title from Womble, he became the equitable owner of the lot, and his executory contract was assignable in equity. Corcorren v. Sharum, 141 Ark. 572.
Therefore when he agreed that Womble should make the deed to his father upon the payment by the latter to Womble of the balance of the purchase price, the effect of the transaction was the assignment by W. 0. Robbins of his equitable interest in the lot to his father. The lot was worth substantially more than the balance of the purchase price due upon it, and the sale under the circumstances detailed above was in fraud of the creditors of W. 0. Robbins. See, in addition to the authorities above cited, Wilks v. Vaughan, 73 Ark. 174.
B. Bobbins paid the balance of the purchase price at the time the conveyance was executed to him.. The payment was made with money of his own, and he had an equity to be substituted to the rights of Womble to that extent.
It is well settled that when a conveyance is only constructively fraudulent as, for instance, where it is in part voluntary — it will be allowed to stand as security for the money advanced by the grantor to pay off incum-brances.
In Boyd v. Dunlap, 1 Johns. Ch. 478, Chancellor Kent states the law on this question as follows: “A court of law can hold no middle course. The entire claim of each party must rest and be determined, at law, on the single point of the validity of,the deed; but it is an ordinary case, in this court, that a deed, though not absolutely void, yet, if obtained under inequitable circumstances, should stand only as a security for the sum actually due. * * * A deed, fraudulent in fact, is absolutely void, and is not permitted to stand as a security for any purpose of reimbursement or indemnity; but it is otherwise with a deed obtained under suspicious or inequitable circumstances, or which is only constructively fraudulent.”
In Clements v. Moore, 6 Wall. U. S. 299, Justice Swayne states the law as follows: “When the proceeding is in chancery, the jurisdiction exercised is more flexible and tolerant. The equity appealed to, while it scans the transaction with the severest scrutiny, looks at the facts, and, giving to each its due weight, deals with the subject before it according to its own. ideas of right and justice. In some instances it visits the buyer with the same consequences which would have followed in an action at law. In others it allows a security to stand for the amount advanced upon it. In others it compels the buyer to account only for the difference between the under price which he paid and the value of the property. In others, although he may have paid full value, and the property may have passed beyond the reach of the court, it regards him as trustee, and charges him accordingly. When he has honestly applied the property to the liabilities of the seller, it may hold him excused from further liability. The cardinal principle in all such eases is that the property of the debtor shall not he diverted from the payment of his debts, to the injury of the creditors, by means of the fraud.”
Many other cases of proving the rule are cited in a case note to 8 A. L. R. at pp. 535-536.
As we have already seen, lot 2 was worth at least $800, and the father only agreed to pay the balance of the purchase price, which was $425, and the sum of $85 to his son. Under the circumstances there was a considerable inadequacy of price, and the court correctly allowed the deed to stand as security only for the $425 and ordered the lot sold in payment of the creditors of W. 0. Bobbins upon their reimbursing B. Bobbins for the amount advanced by him.
The plaintiffs, who are the creditors of W. 0. Bobbins, deposited $425 in the registry of the court upon the refusal of B. Bobbins to accept that amount when it was tendered to him.
It follows that the decree must be affirmed. | [
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PER CURIAM.
hOn January 3, 2014, appellant Walter J. Sims, Jr., who is incarcerated in Lee County, Arkansas, filed a pro se petition for writ of habeas corpus in the Lee County Circuit Court. The circuit court denied the petition, and appellant lodged an appeal in this court. Now before us is appellant’s motions for appointment of counsel and for leave to file a belated reply brief.
We do not reach the merits of the motions and dismiss the appeal because it is clear from the record that appellant did not allege a basis on which the circuit court could properly grant a writ of habeas corpus. Accordingly, appellant could not prevail on appeal. An appeal of the denial of postconvietion relief, including an appeal from an order that denied a petition for writ of habeas corpus, will not be permitted to go forward where the appeal is without merit. Chance v. Hobbs, 2014 Ark. 400, 441 S.W.3d 897 (per curiam).
| ¾A writ of habeas corpus is proper when a judgment of conviction is invalid on its face or when a trial court lacked jurisdiction over the cause. Glaze v. Hobbs, 2013 Ark. 458, 2013 WL 5968931 (per curiam); Davis v. Reed, 316 Ark. 575, 873 S.W.2d 524 (1994). The burden is on the petitioner in a habeas-corpus petition to establish that the trial court lacked jurisdiction or that the judgment-and-commitment order was invalid on its face; otherwise, there is no basis for a finding that a writ of habeas corpus should issue. Young v. Norris, 365 Ark. 219, 226 S.W.3d 797 (2006) (per curiam). The petitioner must plead either the facial invalidity or the lack of jurisdiction and make a “showing by affidavit or other evidence [of] probable cause to believe” that he is illegally detained. Id. at 221, 226 S.W.3d at 798.
In his habeas petition, appellant argued that the writ should issue on grounds pertaining to his criminal conviction. He contended that the evidence was insufficient to sustain the judgment of conviction; the prosecutor at trial committed misconduct; he was denied his Sixth and Fourteenth Amendment rights to a fair, impartial, just, and unbiased trial before an impartial and unbiased judge; and he was denied effective assistance of counsel.
None of the claims called into question the trial court’s jurisdiction or the facial validity of the judgment. Jurisdiction is the power of the court to hear and determine the subject matter in controversy. Bliss v. Hobbs, 2012 Ark. 315, 2012 WL 3374058 (per curiam). There was no claim to demonstrate that the trial court in his case did not have subject-matter jurisdiction to hear and determine cases involving violations of criminal statutes or to establish that the judgment-and-commitment border entered in the case was facially invalid.
Claims of mere trial error, such as those raised by appellant in his habeas petition, are properly settled in the trial court and do not implicate the facial validity of the judgment or the jurisdiction of the trial court. Tucker v. Hobbs, 2014 Ark. 449, 2014 WL 5497320 (per curiam). A claim of prosecutorial misconduct is a claim of trial error. See Hill v. State, 2014 Ark. 420, 2014 WL 5089357 (per curiam). Whether the evidence adduced at trial was sufficient to sustain the judgment of conviction is also a matter to be settled at trial, and the issue is thus outside the purview of a habeas proceeding. Holliday v. Hobbs, 2014 Ark. 408, 2014 WL 4926040 (per curiam). A habeas-eorpus proceeding does not afford a convicted defendant an opportunity to retry his case and argue or reargue issues that were, or could have been, settled in the trial court and on the record on direct appeal. Id.; Wesson v. Hobbs, 2014 Ark. 285, 2014 WL 2814958 (per curiam).
With respect to appellant’s contention that he was denied effective assistance of counsel, allegations of ineffective assistance of counsel are properly raised in the trial court in a timely proceeding under Arkansas Rule of Criminal Procedure 37.1 and are not within the purview of a habeas proceeding. Tolefree v. State, 2014 Ark. 26, 2014 WL 260990 (per curiam). A petition for writ of habeas corpus is not a substitute for a petition under Rule 37.1. Friend v. Norris, 364 Ark. 315, 219 S.W.3d 123 (2005) (per curiam).
When a petitioner in a habeas proceeding fails to raise a claim within the purview of a habeas action, the petitioner fails to meet his burden of demonstrating a basis for a writ of habeas corpus to issue. Quezada v. Hobbs, 2014 Ark. 396, 441 S.W.3d 910 (per curiam); Benton v. State, 2013 Ark. 385, 2013 WL 5519866 (per curiam). A circuit court’s denial of habeas relief will not be reversed 4unless the court’s findings are erroneous. Sanders v. Straughn, 2014 Ark. 312, 439 S.W.3d 1 (per curiam) (citing Henderson v. State, 2014 Ark. 180, 2014 WL 1515878 (per curiam)). 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. Bryant v. Hobbs, 2014 Ark. 287, 2014 WL 2813280 (per curiam). Inasmuch as .appellant failed to state a basis on which the writ could issue, the circuit court did not err in denying relief. See Quezada, 2014 Ark. 396, 441 S.W.3d 910.
Appeal dismissed; motions moot.
. As of the date of this opinion, appellant remains incarcerated in Lee County.
. Appellant was found guilty in 2008 of first-degree murder in the Jefferson County Circuit Court and sentenced as a habitual offender to 600 months’ imprisonment. The Arkansas Court of Appeals affirmed. Sims v. State, 2009 Ark. App. 99, 2009 WL 398117 (unpublished). | [
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Battle, J.
On the 11th of August, 1881, appellees filed their complaint in the Pulaski chancery court against appellant, as administrator of the estate of James Anderson, deceased, alleging that the appellee, Martha E. Jones, wife of John T. Jones, on the 11th of January, 1879, purchased of the widow and heirs of James Anderson, deceased, the southwest quarter of the northeast quarter, and the fractional north half of the southwest quarter, and the fractional south half of the northwest quarter, in section 30, in township 3 north, and in range 15 west; and the northeast quarter of the northwest quarter, and the northwest quarter of the northeasU quarter, in section 4, in township 1 north, and in range 13 west. That the said James Anderson was, at the time of his death residing on and claiming as his homestead, the southwest quarter of the northeast quarter, and fractional north half of the southwest, quarter, and fractional south half of the northwest quarter, section 30, in township 3 north, and in range 15 west, and containing 160 acres. That the above lands, after the death of Anderson, were, by the probate court of Pulaski county, set aside to Lucy Anderson, the widow of James Anderson, as her homestead. That the said Lucy, and the heirs of said James Anderson, all of whom were of full age, conveyed said lands to appellee, Martha E. Jones. That James G-arabaldi, the administrator of the estate of James Anderson, had obtained an order of the Pulaski probate court to sell said lands to pay the debts-of said estate, and had advertised the lands for sale. That James Andersou died seized and possessed of other lands, which had not been conveyed by his heirs, and were amply sufficient to pay all the debts probated against his estate.
Appellees prayed that appellant be restrained and enjoined from selling the lands purchased by them from the widow and heirs of James Anderson, deceased, and be compelled to sell the lands belonging to the estate of Anderson, which have not been sold by his widow and heirs, and for general relief. An order was made by the Chancellor restraining appellant, temporarily, from selling the-lands claimed by the appellees.
Appellant answered, saying that a portion of the lands-alleged by appellees to belong to the estate of Anderson, and to have not been sold, had been sold by Anderson in his lifetime; and that the remainder had been sold for taxes, and were not worth redeeming ; and that the time for redemption had expired before appellant was appointed administrator. That the widow and heirs had, in 1879, conveyed the lands in question to the appellee, Martha E. Jones; that there are unpaid debts of Anderson, -contracted while the constitution of 1868 was in force, probated against his estate; that there are no assets belonging to his estate to pay these debts, except the lands in question; that in 1879 the widow removed from these lands, with no intent of returning, or claiming them ■as a homestead; that she had acquired a home and residence in a distant part of the state, and had fully and forever abandoned any homestead right she may have had in the lands conveyed to appellees; and that the probate court of Pulaski county, having full jurisdiction, had ordered these lands to be sold to pay the debts probated against Anderson’s estate, and remaining unpaid.
Appellees demurred to the answer, which was sustained, and the court, decreed in favor of appellees, making the injunction as to the lands claimed as the homestead of Anderson perpetual, and dissolving, it as to all other lands, and appellant appealed. '
The constitution of 1868 ordained as follows: “If the -owner of a homestead die, leaving a widow but no chil-dren, the same shall be exempt,, and the rents and profits thereof shall accrue to her benefit during the time of her widowhood, unless she be the owner of a homestead in her own right. The homestead of a family, after the •death of the owner, shall be exempt from the payment of debts, in all cases, during the minority of his children, and also, so long as his widow shall remain unmarried, unless she be the owner of a homestead in her own right.”
Section 6, of article 9, of the constitution of 1874, reads •as follows: “If the owner of a homestead die, leaving a widow, but no children, and said widow has no separate homestead in her own right, the same shall be exempt, and the rents and profits thereof shall vest in her during her natural life; provided, that if the owner leaves children, one or more, said child, or children shall share with said widow, and be entitled to half of the rents and profits till each of them arrive at twenty-one years of age — each child’s rights to cease at twenty-one years of age — and the shares to go to the younger children; and then all to go to the widow; and provided, that said widow or children may reside on the homestead or not. And in the case of the death of the widow, all of said homestead shall be vested in the minor children of the testator or intestate.”
It is unnecessary to decide in this case under which of these constitutions the widow of Anderson was entitled to the homestead. So far as they afiect the questions involved the provisions of each are the same. Under each of them the widow of Anderson was entitled to the homestead, and the rents and profits thereof during her widowhood, there being no minor children, unless she be the owner of a homestead in her own right. The question is, does the answer show that she has forfeited this right?
The answer alleges that she has acquired another homestead, and that she and the heirs of Anderson conveyed the lands constituting the homestead to Mrs. Jones. Appellant insists she cannot hold two homesteads, and that when she acquired a homestead in her own right she forfeited the homestead of her deceased husband ; that her right to the homestead of her husband did not vest in Mrs. Jones; that the widow of Anderson, by selling and conveying, abandoned and forfeited the right to hold any of the lands so conveyed as a homestead ; and that the same, immediately and thereupon, became assets in his hands for the payment of debts and subject to sale.
In Davenport v. Devereux, 45 Ark., 343, this court held that the constitution of 1868 “extended the homestead privilege to the widow only so long as she had no home of her own.” The same condition is annexed to her right to hold the husband’s homestead by the constitution of 1874, and she cannot anymore hold two homesteads under one coustitution than she can under the other.
^aieo£by mentof.on"
Can a widow alienate her right to the homestead? The-only rights in respect to the homestead guaranteed to her by the constitution are, that it shall be exempt from the-payment of debts, and that the rents and profits thereof shall accrue to her, there being no minor children, during-her widowhood, under one constitution ; and for her natural life, under the other. The object of this provision of the constitution is to provide for her and the minor children a home from which the creditoi*, by the process of law, cannot force them, and to provide for them some-means of maintenance and support. To provide means for her support she is authorized to rent the homestead, as in that way she would be in possession by tenant, and using it in the only way she could enjoy the rents thereof, as-guaranteed to her by the constitution. In some cases it. may be, this is the only way in which it can be made available to her and her children. She may not be able to cultivate the soil, or control or manage the labor necessary for that purpose. The homestead may be, as is sometimes-the case, their only means of maintenance; and it may happen that, in order to rent it and derive from it any means of support, the dwelling must be temporarily given up to. the tenant. “Thus the family might — sometimes from necessity, sometimes for convenience — be locally absent from the homestead for years without in any degree affecting their rights. The law is not concerned about the precise locality of the family at any time, but it is concerned that, wherever they maybe carried by convenience, chance- or misfortune, there shall be a place, a sanctuary, to which they may return to find the shelter, comfort and security of ahorne.” Foreman v. Meroney, 62 Texas, 726; Walters v. The People, 21 Ill., 178; Phipps v. Acton, 12 Bush., 375 ; Locke v. Rowell, 37 N. H., 46; Davenport v. Devereux, 45 Ark., 343.
One of the objects of the constitution is to secure to the widow and orphans the family roof-tree as a fixed home, •during the widowhood or life of the widow, and minority •of the children. It would be clearly against the policy and ■spirit of the constitution, in thus providing a. home for her, to permit her to alienate it, and to allow others to enjoy the benefits of the homestead of a deceased husband and father, which were only intended for the widow and orphan. If she could do so the exemption which passes, under the constitution, to the widow and minor children upon the death of the husband and father, would not be a reservation of a homestead, but a reservation of land of a ■certain quantity or value, irrespective of its uses.
It follows, then, the widow cannot alienate the homestead of her deceased husband. But she is. not bound to accept and enjoy the beneficent provision made for her by the constitution. Being under no disability, she can abandon the homestead and renounce the benefit of the rents and profits thereof, and thereby surrender and forfeit all claims to it. She can do so by any act which evinces such to be her purpose. If she sells and conveys it, she, most unquestionably, evinces such intention, and thereby forfeits her homestead rights. Wright v. Dunning, 48 Ill., 271; Orman v. Orman, 26 Iowa, 361; Phipps v. Acton, 12 Bush., 375; Whittle v. Samuels, 54 Ga., 548; Locke v. Rowell, 37 N. H., 46.
2. Admin-r?ghat°t o lands sold by heirs,
When the widow of Anderson conveyed the lands in •question to appellees and abandoned them, they became . , , , „ , , . , „ ,, assets m the hands of the administrator for the payment of the debts against the estate. The heirs of Anderson took these lands subject to his debts and the widow’s rights therein, and conveyed to appellee no greater right or interest in them than they themselves had. The lands sold by them to appellee may be sold, if necessary, by the administrator of Anderson’s estate, under an order of the proper probate court, to pay the debts of the estate. But if there be other lands of the estate which have not been sold, appellee has the equitable right to have the assets of .the estate marshaled so as to compel the administrator to sell the lands and other assets still belonging to the estate before he can sell the lands conveyed to them. If, after the other assets of the estate are sold, and the proceeds of the sale are not sufficient to pay the debts, then the lands in question may be sold to pay what is lacking, or so much thereof as may be necessary for that purpose. Howell v. Duke, 40 Ark., 102.
3. Same: ing assets,
The decree of the court below is therefore reversed, and this cause is remanded with an instruction to the court to overrulé the demurrer to appellant’s answer, and for other proceedings not inconsistent with this opinion.. . | [
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Smith, J.
In the year 1872 Edgerton sold to William H. Rector and Henry Powers a block of ground in Capital Hill extension to the city of Little Rock for $1750; of which sum $550 were paid down, and for the residue the notes of the purchasers were taken. In 1874, shortly before the maturity of the last of these purchase notes, Rector conveyed his other lands to Powers; and Powers on the same day reconveyed to Rector’s wife, Celine. The consideration expressed in the two deeds is respectively $1000. and $1200; but no money was in fact paid, nor any other thing of value delivered or agreed to be paid or delivered. So that the transaction is transparently' a voluntary settlement by Rector upon his wife.
In 1876 Edgerton obtained a decree in the proper court against Rector and Powers for $1528, and for the enforcement of his lien as vendor on the block sold them. Under this decree the property was sold for $100.
In 1878 Celine Rector died childless, her heirs being her mother and her brothers and sisters.
In 1881 Edgerton caused execution to be issued for the balance due on his decree, and it was levied upon one of the tracts which had been conveyed to Celine Rector. Edgerton and Rector then agreed to compromise the indebtedness at $500, for which sum Rector executed his notes, and secured the same by a mortgage upon the tract so levied upon. Edgerton seems to have been ignorant of the previous conveyances to Powers and to Celine Rector; but this is immaterial, if he was chargeable with constructive notice by their registry. The conveyances had been in fact duly acknowledged and admitted to record in the proper office shortly after their execution. In those deeds the land is described as “Three-fourths of the south part of the northwest quarter of section 30, township 1 south, range 10 west,” containing forty-four and 31-100 acres. The correct technical description is: “Undivided three-fourths interest in and to the south half of the northwest quarter of section 30, township 1 south, range 10 west.” And the land is so described in the mortgage.
Edgerton now exhibited his bill against Rector and the heirs at law of his deceased wife (Powers being out of the jurisdiction) to set aside these conveyances as fraudulent against him, a pre-existing creditor and a subsequent purchaser, and also to foreclose his mortgage. Rector made no defense; but the other defendants allege that the conveyances were made in good faith and upon a valuable consideration. They deny Rector’s insolvency at the date of the transfer, or that he owed the plaintiff any debt, having, as they say, been imposed on and deceived by the plaintiff as to the present and prospective value of the block, whereby it was sold at a grossly exorbitant figure. They further deny that Rector had any estate in the land, or power to incumber it, at the time the mortgage was executed. And they assert that the land described in the mortgage is the same tract that was intended to be conveyed to Celine Rector; that the description of it in the deeds under which they claim, follows the description contained in Rector’s title papers; and that if there is any inaccuracy, it was the mistake of the draftsman, there being no uncertainty about the tract that was meant, and Rector owning no other lands in that section. But they aver that the description is sufficiently certain to ascertain and identify the land. Their answer was made a cross-bill, in which it was prayed that the deeds might be reformed, if the description was found to be inadequate. The court sustained a demurrer to so much of the answer and cross-bill as sought to reopen the question of Rector’s indebtedness to Edgerton, holding that matter concluded by the judgment that Edgerton had recovered in the former suit. And the plaintiff answered the other allegations of the cross-bill. Depositions were taken and at the hearing a decree was entered, declaring the mortgage a lien superior to the rights of the defendants and ordering its foreclosure.
It is irregular, and according to some authorities fruitless, to litigate in a foreclosure suit an adverse claim which is paramount to the title of the mortgagor. There is no privity between such an adverse claimant and the mortgagee. 2 Jones on Mortgages, sec. 1440, and cases cited; Wiltsie on Mortgage Foreclosures, secs. 118-9; Dial v. Reynolds, 96 U. S., 340; Peters v. Bowman, 98 ib., 66.
1. Mort gage: Foreclos ure: Par ties, etc.
Section 4940 of Mansfield’s Digest authorizes any person to be made a defendant “who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination and settlement of the questions involved in the action.” But the holder of an adverse title, prior to the mortgage, is a stranger. His interest is not opposed to a recovery of judgment by the plaintiff, as he is not affected by it. Nor is his presence necessary to a complete determination of the question of foreclosure; for his rights were not acquired subsequent to the giving of the mortgage. He is therefore neither a necessary nor a proper party; and disputes involving his title should be settled by an action of ejectment or other appropriate action, apart from the fore closure. Pomeroy on Remedies, sec. 333 et seq. But the defect is only a misjoinder of causes of action and of parties, and does not go to the jurisdiction of the court. The remedy is by motion to strike out of the bill the names of the parties and the cause of action improperly joined; and the objection is waived unless made. Mansf. Dig., secs. 5016-17; Crawford v. Fuller, 28 Ark., 370; Terry v. Rosell, 32 ib., 478; Clements v. Lumpkin, 34 ib.,598; Oliphint v. Mansfield, 36 ib., 191; Riley v. Norman, 39 ib.,.158.
In this case the defendants have interposed no objection, here or below, to the litigation of their title.
2. Fraudulent Conveyance:
Post-nuptial settle-me n t on wife.
We entertain no doubt of the fraudulent character of the conveyances under which the appellants hold. They were without any consideration deemed valuable in law, and were in legal effect a voluntary post-nuptial settlement upon the. wife. This is enough to stamp them as presumptively fraudulent against existing creditors, and ta cast upon those, who claimed title under them, the onus of proving the entire good faith of the transaction and that the gift was a reasonable provision for the wife, comprehending but a small portion of the debtor’s estate, and leaving ample funds unincumbered for the satisfaction of his creditors. But the proofs show that Rector thereby stripped himself of all, or very nearly all, of his property that was subject to execution. Wait on Fraudulent Conveyances, secs. 93, 94, 307, 308; Leach v. Fowler’s Devisees, 22 Ark., 143; Bertrand v. Elder, 23 ib.,494; Kehn v. Smith, 20 Wall, 35; Salmon v. Bennett, 1 Conn., 525; S. C., 1 Amer. Lead. Cas., 82.
S. Same: Same.
There is another view that may be taken. Section 3374 of Mansfield’s Digest, which is a re-enactment of the statute of 27 Elizabeth, C. 4-, as well as that of 13 Elizabeth, C. 6, avoids covinous transfers against subsequent purchasers, as well as creditors. Now, a mortgagee is a purchaser within the meaning of this statute. And according to the-English authorities, which were followed in Cathcart v. Robinson, 5 Peters, 263 (per Marshall, G. J.), a voluntary-settlement by a husband upon his wife of the whole-of his property is absolutely void against a subsequent purchaser, even though he had notice. The weight of American authority seems to be against this proposition. But the conveyance is certainly void against a subsequent bona fide purchaser without notice. 1 Amer. Lead. Cas.. 5th Ed. note to the case of Sexton v. Wheaton. Then-the inquiry arises: Was Edgerton affected with notice by the recording of the deeds? According to the previous decisions of this court, the description of the land is so-vague and indefinite as to be void for uncertainty. No boundaries are given and no land marks, natural or artificial, are mentioned. A surveyor could find the northwest quarter of section 30, township 1 south, range 10 west, without difficulty. But he would not know where to begin to lay off forty-four acres in the south part of' that quarter. Mooney v. Cooledge, 30 Ark., 640; Jacks v. Chaffin, 34 ib., 534.; Freed v. Brown, 41 ib., 495.
The deeds, being voluntary, could not be reformed so-as to affect Edgerton. Dyer v. Bean, 15 Ark., 519.
Decree affirmed. | [
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Josephine Linker Hart, Associate Justice
11 This appeal presents a choice-of-law question concerning whether California or Texas law applies to an automobile-insurance policy and what analysis we should use to reach our decision. In their complaint, the Hoosiers alleged that on September 10, 2009, a vehicle driven by Jerry Adams entered a westbound lane of 1-30 in Arkansas and collided with a vehicle occupied by Joey Hoosier, Cyrena Hoosier, and Rebecka Hoosier. The collision pushed the Hoosier vehicle across the median into oncoming eastbound traffic, where the Hoosier vehicle collided with another vehicle. The Hoosiers sought recovery against Adams for the damages they sustained and pursued underinsured-motorist-coverage benefits provided for in an automobile-insurance policy issued to Joey and Cyrena Hoosier by appellee In-terinsurance Exchange of the Automobile Club (IEAC). Adams settled, and IEAC sought summary | judgment, arguing that California law applied, and that based on California law, the Hoosiers were not entitled to recovery. The circuit court agreed and granted IEAC’s summary-judgment motion. The Hoosiers appealed, and the Arkansas Court of Appeals affirmed the circuit court’s decision. Hoosier v. Interinsurance Exch. of Auto. Club, 2014 Ark. App. 120, 433 S.W.3d 259. On review to this court, the Hoosiers argue that the circuit court should have conducted a significant-relationship analysis, concluded that Texas law applied to the policy, and awarded underinsured-motorist benefits. After considering this argument, we reverse and remand the circuit court’s decision and vacate the decision of the Arkansas Court of Appeals.
In determining this choice-of-law question, the essential facts are that on March 21, 2009, Joey and Cyrena Hoosier held an automobile-insurance policy issued by IEAC that provided underinsured-motorist coverage. At that time, Joey and Cyrena Hoosier were residents of California. On June 4, 2009, however, a policy-change declaration was issued by IEAC. According to the declaration, the subject of the policy change was a “RESIDENCE CHANGE” to an address in Houston, Texas. The declaration noted that there was no change to the premium.
In their motion for summary judgment, IEAC argued that the circuit court should apply the choice-of-law rule of lex loci contractus, which provides that questions regarding insurance coverage are resolved by applying the law of the state where the insurance contract was made. See generally Cross v. State Farm Mut. Auto. Ins. Co., 2011 Ark. App. 62; S. Farm Bureau Cas. Ins. Co. v. Craven, 79 Ark. App. 423, 89 S.W.3d 369 (2002). IEAC contended that under that rule, California law applied to the interpretation of the underinsured-motorist provision in the | (¡insurance policy. Further, IEAC contended that under California law, the loss would not meet the qualifications for an underinsured-motorist claim because the bodily-injury limits in Adams’s insurance policy were equal to and not less than the amount of underin-sured-motorist coverage available under Joey and Cyrena Hoosier’s IEAC policy.
In reply, the Hoosiers argued that Texas law applied under the lex loci contrac-tus rule, or, alternatively, a significant-relationship analysis in which the court applies to a particular issue the law of the state with the more significant relationship to the transaction and the parties. See generally Restatement (Second) of Conflict of Laws §§ 188(2), 193 (1971). The Hoosiers asserted it was undisputed that Joey and Cyrena Hoosier resided in Texas and that they had notified IEAC of their change in residence from California to Texas. The Hoosiers further asserted that Texas law applied and that under Texas law, they were entitled to underin-sured-motorist benefits because, in Texas, a motorist is considered underinsured whenever his liability insurance is insufficient to cover the injured party’s damages.
In its written order, the circuit court concluded that the rights and liabilities of the parties to an insurance contract should be determined by the law of the state where the contract was made. The circuit court found that California law applied to the underinsured-motorist-coverage provision and that the move to Texas and the change of residence “did not change this finding.” After applying California law, the court granted summary judgment in favor of IEAC.
On appeal, the parties do not dispute that the Hoosiers would be entitled to an award of underinsured-motorist benefits under Texas law while California law would preclude |4coverage. The Hoosiers contend that Texas law applies under the lex loci contractus rule, arguing that the policy was effectively reissued in Texas. They also argue that Texas law applies under the significant-relationship analysis. The Hoosiers observe that the insurance policy required that they inform IEAC of a change in residence and that the policy was changed in June 2009 to reflect the change in residence to a Texas address, which was three months prior to the accident. They further contend that Texas was the principal location of the insured risk.
In reply, IEAC contends that the change of address was not sufficient to show that the policy had become a Texas policy. Further, IEAC argues that under the significant-relationship analysis, California law should apply because the place of negotiation and contracting was California, where IEAC was incorporated. IEAC further asserts that because Joey and Cyrena Hoosier moved back to California after the accident, California was their residence, the place of performance of the policy, and the place for a claim for any benefits after the accident.
In instances where an insurance policy does not contain an effective choice-of-law provision, this court has applied what is known as the significant-relationship analysis to determine which state’s law applied to the policy. Scottsdale Ins. Co. v. Morrow Valley Land Co., 2012 Ark. 247, 411 S.W.3d 184; Crisler v. Unum Ins. Co. of Am., 366 Ark. 130, 233 S.W.3d 658 (2006). The Restatement (Second) of Conflict of Laws § 193, provides as follows:
The validity of a contract of fire, surety or casualty insurance and the rights created thereby are determined by the local law of the state which the parties understood was to be the principal location of the insured risk during the term of the policy, unless with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the transaction and the parties, in which event the local law of the other state will be applied.
| ¡¡Accordingly, with respect to an automobile-insurance policy, which is a form of casualty insurance, unless some other state has a more significant relationship to the transaction and the parties, the law of the state which the parties understood to be the principal location of the insured risk during the term of policy controls. In applying the significant-relationship analysis in Scottsdale and Crisler, this court considered the factors set out in Restatement (Second) of Conflict of Laws § 188(2), which provides as follows:
In the absence of an effective choice of law by the parties (see § 187), the contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include:
(a) the place of contracting,
(b) the place of negotiation of the contract,
(c) the place of performance,
(d) the location of the subject matter of the contract, and
(e) the domicil, residence, nationality, place of incorporation and place of business of the parties.
These contacts are to be evaluated according to their relative importance with respect to the particular issue.
In Scottsdale and Crisler, this court adopted the significant-relationship analysis in deciding choice-of-law questions relating to an insurance policy. The adoption of the significant-relationship analysis with respect to the automobile-insurance policy in this case is supported by sound policy. Because the lex loci contractus rule has been considered too rigid, a majority of the states now apply the law of the state with the most significant relationship to the dispute. Jeffrey E. Thomas, New Appleman on Insurance Law Library Edition § 6.02[3][a] |n(2013). The significant-relationship analysis provides a “flexible approach that takes into account each state’s contacts with the parties and the transaction to determine which state has the greatest interest in resolving the issues raised in the lawsuit.” Id. The lex loci contractus rule, which applies the law of the state in which the contract was made, has become more difficult to apply in multi-state commerce. Id. § 6.02[2], In contrast, the significant-relationship analysis permits a court to take into account the location of where the insured automobile will be garaged because the automobile’s location would have a bearing on the nature and extent of the risk. Id. § 6.02[3][c]. Moreover, the state where the insured risk will be principally located has an interest in the determination of issues arising under the insurance policy. Id. Further, the significant-relationship analysis permits consideration of other factors, such as the place of contracting; the place of negotiation of the contract; the place of performance; the location of the subject matter of the contract; and the domicil, residence, nationality, place of incorporation and place of business of the parties. Restatement (Second) of Conflict of Laws § 188(2).
Like the insurance policies in Scottsdale and Crisler, the automobile-insurance policy at issue here does not contain a choice-of-law provision. In keeping with our application of the significant-relationship analysis to an insurance policy to answer a choice-of-law question in both Scottsdale and Crisler, we likewise apply this analysis to Joey and Cyrena Hoosier’s automobile-insurance policy to determine whether Texas or California law applies. Thus, we reject the notion that the choice-of-law rule of lex loci contractus applies in this case. Because there are no disputed facts, our standard of review is de novo. Scottsdale Ins. Co., 2012 Ark. 7247, at 6-8, 411 S.W.3d at 189-90 (affirming the granting of summary judgment after conducting a de novo review of the above factors and concluding that Arkansas law applied); see Crisler, 366 Ark. at 133-35, 233 S.W.3d at 660-61 (reversing the granting of summary judgment after considering the factors and concluding that Arkansas law applied). In considering these factors de novo, we conclude that Texas law applies.
Under the policy, an underinsured motor vehicle was defined as a “motor vehicle which at the time of the accident is either: (a) insured under a motor vehicle liability policy or an automobile liability insurance policy; or (b) self-insured; or (c) covered under a cash deposit or bond posted to satisfy a financial responsibility law;' but for an amount that is less than the limits shown in the declarations for COVERAGE F.” Given the change of address provided for in the policy declaration issued by IEAC, at the time of the accident, the parties understood that Texas was the’ principal location of the insured risk. Further, in considering these factors, while the insurance policy was originally negotiated in California, Joey and Cyrena Hoosier notified IEAC that they were moving to Houston, Texas, and IEAC issued |sto them a policy declaration showing a residence change to an address in Houston, Texas. Thus, at the time of the accident, the place of performance, the location of the subject matter of the contract, and the residence of the Hoosiers were all in Texas. Considering these factors and evaluating the factors according to their relative importance with respect to this issue, Texas had a more significant relationship to the transaction and the parties than did California. IEAC argues that under the significant-relationship analysis, California law applies because Joey and Cyrena Hoosier moved back to California. The policy, however, indicates that the definition of an underinsured motor vehicle is determined “at the time of the accident.” Accordingly, we hold that the circuit court improperly granted summary judgment to IEAC and reverse and remand.
Reversed and remanded; court of appeals opinion vacated.
Hannah, C.J., and Corbin and Danielson, JJ., dissent.
. “Casualty insurance" is defined as an "agreement to indemnify against loss resulting from a broad group of causes such as legal liability, theft, accident, property damage, and workers' compensation.” Black's Law Dictionary 871 (9th ed. 2009).
. The dissent asserts that the majority has reversed a circuit court for following precedent, citing Southern Farm Bureau Casualty Insurance Company v. Craven, 79 Ark. App. 423, 89 S.W.3d 369 (2002). As explained above, we are applying precedent, specifically this court’s decisions in Scottsdale Insurance Company v. Morrow Valley Land Co., 2012 Ark. 247, 411 S.W.3d 184, and Crisler v. Unum Insurance Company of America, 366 Ark. 130, 233 S.W.3d 658 (2006), which applied the significant-relationship analysis to insurance policies. Moreover, Craven did not hold that the choice-of-law rule of lex loci contractus applied. Rather, it held that "whether the lex loci contractus rule or the significant contacts analysis is applied, the insurance contract in the present case is governed by Arkansas law." Craven, 79 Ark. App. at 428, 89 S.W.3d at 373. To the extent that Craven applied the lex loci contractus rule to automobile-insurance policies, we reject it. | [
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Battle, J.
This was an action brought by Sallie L. Leverett, as administratrix of the estate of James W. Leverett, deceased, against the Little Rock, Mississippi River and Texas Railway Company, to recover damages alleged to have resulted from the negligence of the defendant in wrongfully causing the death of the deceased. . The action was brought under section 5226 of Mansfield’s Digest, to recover damages for the benefit of the next of kin of the ■deceased. ■
The negligence averred is, that defendant’s road-bed, tracks and station at the town of Arkansas City were constructed on a high embankment, with a narrow and insufficient crown, and steep, slippery and insufficient slopes; that the cross-ties placed on the embankment extended over the sides of the embankment; that there was no walk-way for switchmen to walk or stand upon when in the necessary discharge of their duties in. coupling and uncoupling ears; and that the road-bed at this place was not sufficiently ballasted or surfaced up. It is averred that the deceased was employed by defendant as a switch-man in the yard at this station, and was engaged on the night of the 12th of January, 1883, in the line of his duty, in uncoupling cars, and that while so engaged one of his feet slipped between the ties and was caught, and before he could extricate it he was run over by defendant’s cars and killed. That the deceased had then been recently employed by defendant and was ignorant of the dangerous and defective construction of the embankment, road-bed and tracks on which he was engaged at the time he was killed, and that his death was the result of the negligence of defendant in constructing its road-bed and tracks in the manner stated.
l. Evidrncb: Hen gestee,
On a trial in the circuit court, plaintiff recovered a judgment for |3500, and defendant appealed to this court, It is first insisted that the circuit court erred in admitting evidence of the declarations of the deceased as to the manner in which he was injured. Thomas Leverett, a brother of the deceased, testified that he heard a noise on the railroad and immediately went over and found the deceased under the car, lying partly on the rails, between the track, trying to get out, but could not do so, being unable to move his legs; and he asked him how he was caught, and that deceased told him he had stepped in between the cars to uncouple them; that the pin was tight, and he stepped out and signaled the engineer to back up to loosen the pin, and that he then stepped iu between the cars to uncouple them, and as he did so, he stepped between the ties and his feet slipped, and before he could recover, his foot was caught against the tie by the breakbeam, and he was thrown down. This statement was made by the deceased while he was under the car and in the condition found by his brother.
Appellant insists that this statement was incompetent evidence, because it was not a part of the res gestee.
Wharton says: “ The res gestee may be defined as those-circumstances which are the undesigned incidents of a. particular litigated act, and which are admissible when illustrative of such aet% These incidents may be separated from the act by a lapse of time more or less appreciable. They may consist of speeches of any one concerned,, whether participant or bystander; they may comprise-things left undone as well as things done. Their sole distinguishing feature is that they should be the necessary incidents of the litigated act; necessary,in this sense, that- they are part of’ the immediate preparations for, or emanations of, such act, and are not produced by the calculated policy of the actors. In other words, they must stand in immediate causal relation to the act — a relation not broken by the interposition of voluntary individual wariness, seeking to manufacture evidence for itself. Incidents that are thus immediately and unconsciously associated with an act, whether such incidents are doings or declarations, become in this way evidence of the character of the act. * * * Therefore, declarations which are the immediate accompaniments of an act are admissible as a part of the res gestee; remembering that immediateness is tested by closeness, not of time, but by causal relation as just explained.” Wharton on Evidence, secs. 258, 267, and authorities cited.
In Clinton v. Estes, 20 Ark., 225, it is said: “It may be difficult to determine at all times, when declarations shall be received as a part of the res gestee. But when they explain and illustrate it, they are clearly admissible. Mere narratives of past events, having no necessary connection with the act done, would not tend to explain it. But the declaration may properly refer to a past event as the true reason of the present conduct.”
In Carr v. The State, 43 Ark., 102, in speaking of what declarations constitute a part of the res gestae, the court said: “ Nor need any such declarations be strictly coincident as to time* if they are generated by an excited feeling which extends without break or let down from the moment of the event they illustrate. But they must stand in immediate causal relation to the act, and become part either of the action immediately preceding it, or of the action which it immediately precedes.” Again, in Flynn v. State, ib., 292, it is said: “ It often becomes difficult to determine when declarations shall be received as part of the res gestae. In cases like this, words uttered during the continuance of the main action, or so soon thereafter as to preclude the hypothesis of concoction or premeditation, whether by the active .or passive party, become a part of the transaction itself,' and if they are relevant, may be proved as any other fact, without calling the party who uttered them.”
In Commonwealth v. Hackett, 2 Allen, 136, upon a trial for murder, a witness testified that at the moment the fatal stabs were given hé heard the victim cry out: “I am stabbed,” and he at once went to him and reached him within twenty seconds after that, and then heard him say : “I am stabbed — I am gone — Dave Hackett has stabbed me.” This evidence was held competent as a part of the res gestee. Chief Justice Bigelow, for the court, said : “If it was a narrative statement, wholly unconnected with any transaction or principal fact, it would be clearly inadmissible. But such was not its character. It was uttered immediately after the alleged homicidal act, in the hearing of a person who was present when the mortal stroke was given, who heard the first words uttered by the deceased, and who went to him after so brief an interval of time that the declaration or exclamation of the deceased may fairly be deemed a part of the same sentence as that which followed instantly after the stab with the knife was inflicted. It was not, therefore, an abstract or narrative statement of a past occurrence, depending for its force and effect solely on the credit of the deceased, unsupported by any principal fact, and receiving no credit or significance from the accompanying circumstances. But it was an exclamation or statement contemporary with the main transaction, forming a natural and material part of it, and competent as being original evidence in the nature of res gestae.” Again, the learned judge said: “The true test of the competency of the evidence is not, as was argued by the counsel for the defendants, that the declaration was made after the act was done, and in the absence of the defendant. These are important circumstances, and * * * if they stood alone, quite decisive. But they are outweighed by the other facts in proof, from which it appears that they were uttered after the lapse of so brief an interval, and in such connection with the principal transaction as to form a legitimate part of' it, and to receive credit and support as one of the circumstances which accompanies and illustrates the main fact which was the subject of inquiry before the jury.”
In the case of Hanover R. R. Co. v. Coyle, 55 Penn. St., 402, where a peddler’s wagon was struck and the peddler injured by the negligence of the engineer, the latter’s declaration, made after the infliction of the injury, was admitted as a part of the transaction itself, the court saying: “We cannot say that the declaration was no part of the res gestee. It was made at the time in view of the goods strewn along the road by the breaking up of the boxes, and seems to have grown directly out of and immediately after the happening of the fact. The negligence complained of being that of the engineer himself, we cannot say that his declarations, made upon the spot at the time, and in view of the effects of his conduct, are not evidence against the company as a part of the very transaction itself.”
In the case of Elkins v. McKean, 79 Penn. St., 493, the plaintiff sued the defendant for damages caused by oil, manufactured and sold by him to plaintiff’s husband, exploding while the husband was using- it in a lamp, and catching fire and burning the husband to death. The court held what the husband said as to the cause of the accident when found enveloped in the flames, or within a few minutes afterwards, was clearly competent evidence as a part of-the res gestee.
In Cosey v. N. Y. C. & H. R. R. Co., 78 N. Y., 518, the plaintiff sued for damages resulting from the death of a child who had been run over and killed by the defendant’s ears. ' On the trial a police officer who went to the place of the accident immediately after the child was killed, and found the child under the wheels of the car, was permitted as a witness for the plaintiff to state what the engineer in charge of the engine said and did in extricating the body of the child from under the wheels of the car. The court held the statements • of the engineer were admissible as a part of the res gestee. Waldele v. N. Y. C. & H. R. R. Co., 95 N. Y., 284.
McLeod v. Ginthers, admr., 80 Ky., 399, was a suit for damages resulting from the willful neglect of appellant’s servants in sending dispatches to two conductors of trains which were to run on the same day over the same part of defendant’s road. The dispatches were alike and ambiguous and construed differently by the two conductors. The result was a collision of trains and the death of Ginther, plaintiff’s intestate, who was an engineer on one of the trains.- Fish, the conductor on the same train, within a few seconds after the casualty, remarked to the engineer of the other train : “I had until 10:10-to make Beards.” It was held by the court that it was important to show what Fish and Ginther thought of the meaning of the dispatch while they were acting under it, as the negligence in this case consisted of the wording, of the dispatch so as to mislead them, and that the declaration of Fish having been made within a few seconds after the acccident in view of, the wrecked trains and amidst the search for persons whose fate was then unknown, and while G-inther, who lived but thirty minutes, was dying from the injuries he had received, was admissible for that purpose as a part of the res gestee. The court said : “ He had no time to contrive or devise a falsehood by which to exonerate himself from blame, and his declaration was so ■connected with the circumstances then surrounding him, and which form a part of this case, as to give it importance in determining the fact that he and the engineer had run the engine in the honest belief that they had until ten minutes after ten o’clock to reach Beards station. * * * If we ignore the credit to which Fish may have been entitled'as a truthful man,' his declaration made under the circumstances impresses the mind with confidence in its truth, and is entitled to be given its weight as any other fact going to make up the transaction.”
The statement of Leverett was made immediately after he was run over, and while the wrong complained of was incomplete, he being still under the car, and was a part of the res gestee, and fairly go to explain the cause of the condition in which he was at the time it was made. It was an emanation of the act in question, and so connected with the cause of his injuries as to preclude any idea that it was the product of calculated policy. Aside from any credit due Leverett for veracity, the circumstances immediately preceding and connected with his statement, impress the mind with confidence in its truth. It was competent evidence.
It is next urged that the trial court erred in admitting evidence as to the dependence of plaintiff, Sallie L. Leverett, on the deceased for maintenance and support. The proof was, the deceased was her son ; that he was about twenty-three years old at the time he was killed; and that he had never been married, and that he left a mother, brothers and a sister, but no father, surviving him.
2. Damages To parent from death of son. Evidenoe of paren poverty.
The evidence objected to was, that plaintiff was poor and deceased lived with and supported her; and that she was dependent on him for support and maintenance. This evidence was admitted by the court over the objection of defendant.
In actions of this character the statute says: “The jury may give such damages as they shall deem a fair and just compensation, with reference to the pecuniary injuries resulting from such death, to the wife and next of kin of such deceased person.” Under the statute, the plaintiff being next of kin of the deceased, had a right to show the pecuniary damage suffered by her by reason of his death. The effect and object of the evidence objected to was to show she had suffered a pecuniary damage by the death of her son, and for that purpose it was admissible. Ewen v. Chicago & Northern Railway Co., 38 Wis., 622; Barley v. Chicago & Alton R. R. Co., 4 Biss., 434; Cook v. Clay Street Hill R. R. Co., 60 Cal., 609; Opsahl v. Judd, 30 Minn., 126.
In instructing the jury the court told them, if they found for the plaintiff, they should assess her damages at whatever sum they believed would compensate her for the pecuniary loss she had sustained; and that the law prescribes no rule for the measurement of damages, except that the jury should give such damages as they should deem a fair and just compensation with reference to the pecuniary injuries resulting from the death of plaintiff’s intestate to his next of kin. The damages allowed by the jury were reasonable, and it does not appear that appellánt was prejudiced, or could have been prejudiced, by the evidence objected to under the instructions of the court.
3. Same-Duty of companyto employe,
^ is contended by the appellant that the first, second, third and eighth instructions given by the court to the ° ° , jury, at the instance of the plaintiff, are erroneous. The instructions informed the jury that when appellant employed plaintiff’s intestate to work as a switchman in its yards at Arkansas City, it assumed a duty to him to construct and maintain its road-bed and tracks in a reasonably safe condition, so as not to unnecessarily enhance the dangers attending upon the employment; that he assumed the natural risks of his employment, but did not assume the risks arising from the negligence of the appellant in constructing a defective road-bed or track ; and that if the injuries received by plaintiff’s intestate were caused by the defective condition of appellant’s road-bed or track, plaintiff was entitled to recover such pecuniary damages as plaintiff sustained by the death of her son, unless the injuries were the result of the contributory negligence of her intestate. In this connection the court further instructed the jury, that if plaintiff’s intestate entered and continued in the employment of defendant, knowing the dangerous condition of the road-bed, plaintiff was not entitled to recover for an injury resulting from the condition of the road bed; and that if the injury received, by him occurred on account of the steep banks of the road-bed, or on account of the lack of ballasting on the track, plaintiff could not recover, if he knew this was the condition of the road-bed at and before the time of the injury; and that, if at the point he was injured, the road-bed was in a defective and dangerous condition, and he knew it, plaintiff could not recover for an injury occasioned by such defective road bed.
Construing these instructions together, appellant was not prejudiced by any of them. In employing the deceased, the appellant assumed the duty of exercising reasonable care and prudence to provide him a safe place, and tools to exercise the employment, and to-maintain the place and tools in a reasonably safe ■condition, during the time for which he was employed; and the deceased assumed the risks and hazards which ■ordinarily attend or are incident to the service he was engaged to perform. The negligence of appellant to supply a safe road-bed, or place and tools for deceased, was not a hazard and risk usually or necessarily attendant upon or incident to the performance of his contract; nor was it one which the deceased, in legal contemplation, is presumed to have assumed, for the obvious reason that he was to use such road-bed, place and tools as were to be provided by appellant, and had and was to have nothing to do with constructing the road bed and place, and purchasing the tools, or with the preservation or maintenance of such road-bed and tools in suitable condition after they were supplied. This risk is not within the contract of service. If it was, appellant would have been relieved of all pecuniary responsibility for failing to perform the obligations he had assumed. Such a doctrine would be suBversive of all just ideas of the obligations arising out of ■such contracts of service, and would withdraw all protection from such employes. A doctrine that leads to such results is contrary to reason, and unworthy the sanction of any court. St. L., I. M. & S. Ry. v. Higgins, 44 Ark., 300; Davis v. Central Vermont R. Co , 11 Am. & Eng. R R. cases, 175; Missouri Pacif. Ry. Co. v. Lyda, ib., 190; Texas-Mexican Ry. Co. v. Whitmore, ib., 199; Galveston, etc., R. R., v. Lempe, ib., 201; Atchison, Topeka & Santa Fe R. R. Co. v. Holt, ib., 211; same v. Moore, ib., 247, 252; Brown v. Atchison, Topeka & Santa Fe R. R. Co., 15 ib., 271; Elmer v. Locke, 135 Mass., 575; Pierce on Railroads, 370 ; Hough v. Railway Co., 100 U. S., 213.
While there was an implied contract between the appellant and the deceased, that the former should furnish and provide for deceased a safe place and road-bed in and •on which to perform the labors required of him, yet the failure of appellant in that regard furnished no excuse for the conduct of the' deceased, if he voluntarily and knowingly incurred the risks and dangers of performing the labors of his employment on a defective and dangerous road-bed. If he had, at and before he was injured, full knowledge of the dangerous character and defects of the road-bed, or place on and in which he was required to work, he had the right to decline to work, or require that the roadbed or place should first be made safe ; but if he did not, and with this knowledge entered upon the work, he assumed the risk and should bear the consequences. L. R. & Ft. S. R. R. Co. v. Duffey, 35 Ark., 613; Fones v. Phillips, 39 Ark., 36; Gibson v. Erie Ry. Co., 63 N. Y., 452; Woods’ Master and Servant, secs. 335, 372; Pierce on Rail-roads, p. 379.
A servant is not required to inspect the appliances of the business in which he is employed, to see whether or not there are latent defects that render their use more than ordinarily hazardous, but is only required to take notice of such defects or hazards as are obvious to the senses.
4. master ^ant?™’ duty ai^to tools,-eto'
The fact that he might have known of defects, or that he had the means and opportunity of knowing of them, will not preclude him from a recovery unless he did in fact know of them, or in the exercise of ordinary care ought to have known of them. He is not bound to make an examination to find defects. There is no such legal obligation imposed upon him. That is the duty of the master.
The servant is not bound to search for dangers, except those risks that are patent to ordinary observation ; he has a right to rely upon the judgment and discretion of his master, and that he will fully perform his duty toward him. Ft. Wayne, Jackson & Saginaw R. R. Co. v. Gilders-leave, 33 Mich., 133; Hughes v. Winna & St. Peter R. R. Co., 27 Minn., 137; Reber v. Tower, 11 Mo. App., 203; Woods Master and Servant, sec. 376, and authorities cited.
5. Duty of théUcompany‘
The circuit court instructed the jury that'an employe is not bound by a rule of the company not brought to his attention, or which is habitually violated with the knowledge of his superior officers, and without any effort on their part to enforce it, or where the'usage and practice of the company would tend to mislead him in the violation of the rule. Appellant insists that this instruction is erroneous; but we see no error in it. Fay v. Minneapolis & St. L. Ry. Co., 11 Am. & Eng. R. R. Cases, 193.
Appellant asked the court below to instruct the jury to the effect: That if the defects in the road-bed where Leverett was thrown down and mortally injured by its cars were easily and readily seen, and Leverett had been accustomed to working there, and in attempting to uncouple cars, while in motion, received the injuries which caused his death, plaintiff was not entitled to recover. And the court refused to give the instruction. Appellant, insists that the court erred in so doing.
Contributory negligence is a matter of defense. It is not presumed, but must be proved, and the burden of proving it rests on defendant. Hough v. Ry. Co., 100 U. S., 225; Burlington, Cedar Rapids & Northern R. R. Co. v. Coats, 15 Am. & Eng. R. R. Cases, 865.
We have failed to find, and appellant has not called our attention to any evidence which would have made the instructions asked for by it, and refused by the court, applicable or appropriate. There was no evidence, so far as we have discovered, to prove that the deceased, before he was hurt, knew or ought to have known of the condition of the track where he was fatally injured. There was evidence tending to prove that he was employed to work, and had been working, in a part of appellant’s yard at Arkan sas City, where the tracks and yard were in a good condition. The first time we have any evidence of his working on the road where he was killed, or his having been there, was the night and time he was killed. It was then dark, cloudy, and had been raining. He was called to fill the place of an absent employe, and while attempting to uncouple a car, at half-past 4 o’clock in the morning, was run over by the cars and so injured that he died within two or three days thereafter. The evidence does not show that the defects which led to his injury were patent to ordinary observation, at the time and under the circumstances he was hurt, it being in the night and dark and cloudy; and we do not feel at liberty to indulge in the presumption that they were. Brown v. A. T. & S. F. R. R. Co., supra. We find no error in the proceedings of the court below prejudicial to appellant. .And the judgment is affirmed. | [
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Battle, J.
.On the 16th of January, 1887, the Arkansas Industrial Company presented a petition to this court, alleging therein, among other things, that on the 10th day of January, 1887, it presented to the Pulaski chancery court its petition, in which it set forth and showed the following facts : That in 1883 the state of Arkansas, for a valuable consideration, made and executed to Townsend & Fitzpatrick a lease of the state penitentiary, together with the custody, use and control of all the convicts therein confined, for a period of ten years. That, for a valuable consideration Townsend & Fitzpatrick subsequently transferred and assigned this lease to relator, and that thereby it became the lessee of the state penitentiary.
That prior to this assignment, on the 22d day of January, 1883, Townsend & Fitzpatrick hired to the defendant, C. M. Neel, for ten years, one.hundred of the convicts confined in the state penitentiary, at twelve dollars and fifty cents per capita per month. That this contract with Neel was assigned to it at the time the lease was transferred. "That under this contract the defendants unlawfully hold in their possession and control, and detain ninety-five convicts, named in the petition, who are duly and lawfully sentenced to confinement in the state penitentiary, by courts of competent jurisdiction of the state of Arkansas. That relator is entitled to the custody of these convicts by virtue of its being the lessee of the penitentiary. That relator had demanded the custody and possession of these convicts, and defendants had refused to surrender them; and that it asked the chancery court in that petition for a writ of habeas corpus, directing the defendants to produce the bodies of these convicts, and that they be delivered to relator.
And relator further states in its petition to this court, that defendant filed a response to its petition in the Pulaski chancery court, and that the chancery court, upon a hearing, refused to issue a writ of habeas corpus, and dismissed its petition.
The prayer of the petition filed here is, that the proceedings of the chancery court be reviewed by this court, and that a writ of habeas corpus be issued as prayed for in its first petition, and that the convicts named in its petition be delivered to it, and for general relief.
In response to a writ of certiorari the record and proceedings of the chancery court have been certified to this court, from whicn it appears that the allegation of relator in both petitions, so far as they are stated in this opinion, are true. They are not denied by the defendants. Both parties appear in this court.
Section 4 of article 7 of the constitution of this state, reads as follows: “The Supreme Court, except in cases other-wise provided by this constitution, shall have appellate jurisdiction only, which shall be coextensive with the state, under such restrictions as may from time to time be prescribed by law. It shall have a general superintending control over all inferior courts of law and equity; and, in aid of its appellate and supervisory jurisdiction, it shall have power to issue writs of error, and supersedeas, certiorari, habeas corpus, prohibition, mandamus and quo warranto, and other remedial writs, and to hear and determine the same.”
The jurisdiction of the Supreme Court of the United States is similar to that of this court. After saying to what cases and controversies the judical power of the United States shall be limited, the constitution of the United States defines the jurisdiction of the Supreme Court as follows : “In all eases affecting ambassadors,
other public ministers and consuls, and those in which a state shall be a party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the congress shall make.”
In defining the jurisdiction of the district, circuit and supreme courts of the United States congress, by an act of September 24, 1789, enacted, “that all the before-mentioned courts shall have power to issue writs of scire facias, habeas corpus, and all other writs not especially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law, and that either of the justices of the supreme court, as well as judges of the district courts, shall have power to grant writs of habeas corpus, for the purpose of inquiry into the cause of commitment: provided, that writs of habeas corpus shall in no case extend to prisoners in jail, unless they are in custody under or by color of the authority of the United States, or are committed for trial before some court of the same, or are necessary to be brought into court to testify.”
Under the constitution of the United States, and this act of congress, the Supreme Court of the United States has, in numerous cases, held that it can, in the exercise of its appellate jurisdiction, issue the writ of habeas corpus, and hear and determine the same.
In ex parte Terger, 8 Wall., 85, Chief Justice Chase, after an exhaustive review of the decisions upon that subject, announced the conclusion of the court as follows: .“We are obliged to hold, therefore, that in all cases where a circuit court of the United States has, in the exercise of its original jurisdiction, caused a prisoner to be brought before it, and has, after inquiring into the cause of the detention, remanded him to the custody from which he was taken, this court, in the exercise of its appellate jurisdiction, may, by the writ of habeas corpus, aided by the writ of certiorari, revise the decision of the circuit court, and if it be found unwarranted by law, release the prisoner from the unlawful restraint to which he has been remanded.”
In commenting upon this jurisdiction, in ex parte Siebold, 100 TJ. 8., 37J¡., the Supreme Court of the United States said: “The question is, whether a party imprisoned under a sentence of a United States court, upon conviction of a crime created by and indictable under an unconstitutional act of congress, may be discharged from imprisonment by this court on habeas corpus, although it has no appellate jurisdiction by writ of error over the judgment. It is objected that the case is one of original and not appellate jurisdiction, and, therefore, not within the jurisdiction of this court. But we are clearly of the opinion that it is appellate in its character. It requires us to revise the act of the circuit court in making the warrants of commitment upon the conviction referred to. This, according to all the decisions, is an exercise of appellate power. Ex parte Burford, 3 Cranch., 448 ; ex parte Boleman, and Swortout, 4 ib , 100, 101; ex parte Yerger, 8 Wall., 98.
“That this court is authorized to exercise appellate jurisdiction by habeas corpus directly, is a position sustained by abundant authority. It has general power to issue the writ, subject to the constitutional limitations of its jurisdiction, which are, that it can only exercise original jurisdiction in cases affecting ambassadors, public ministers and consuls, and in cases in which a state is a party ; but has appellate jurisdiction in all other cases of federal cognizance, with such exceptions and under such regulations as congress shall make. Having this general power to issue the writ, the court may issue it in the exercise of original jurisdiction where it has original jurisdiction; and may issue it in the exercise of appellate jurisdiction where it has such jurisdiction, which is in all cases not prohibited by law, except those in which it has original jurisdiction only. Ex parte Boleman and Swortout, supra.; ex parte Watkins, 3 Pet., 202; ib., 568; ex parte Wells, 18 How., 307, 328; Ableman v. Booth, 21 ib., 506; ex parte Yerger, 8 Wall, 85.”
3. Habeas Corpus: Jurisdiction of Sup r e m o Court.
The appellate jurisdiction exercised by the Supreme Court of the United States in the issue of writs of habeas corpus has been expressly conferred upon this court by the constitution of this state. It is not, however, confined to a- review of the action of a court, as in the case of the Supreme Court of the United States, but it extends to a review of the proceedings of chancellors and judges at chambers upon applications for habeas corpus and certiorari, and upon proper transcripts of the proceedings.
Ex parte Jackson, J¡.5 Ark., 168. In both courts this jurisdiction is brought into exercise by the aid of the writ of certiorari, it being issued in connection with the writ of habeas corpus in order to bring up the proceedings of the lower court or judge, and thereby enable the court to review, revise and correct the action of the inferior court or judge.
It is, however, to be borne iu mind that the right to issue a writ of habeas corpus in the exercise of its appellate and supervisory jurisdiction does not authorize the court to convert it into a writ of error. The great object of the writ is the liberation of those who may be imprisoned without sufficient cause, and to deliver them from unlawful custody. It is not the function of this writ to inquire into or correct errors. But its object is to require the person who answers it to show upon what authority he detains the prisoner. If the person restrained of his liberty is in custody under process, nothing will be inquired into, by virtue of the writ, beyond the validity of the process upon its face, and the jurisdiction of the court by which it was issued. If he be detained under a conviction and sentence by a court having jurisdiction of the cause, no relief can be given by habeas corpus, the general rule being that a conviction and sentence by a court of competent jurisdiction is lawful cause of imprisonment.
2. Same: 00ire“tio°n of 6"01:3,
Ex parte Siebold, 100 U. S., 375; ex parte Yarbrough, 110 U. S., 651.
3 gAMB.
The object of the writ of habeas corpus, as a general rule, is not to recover possession of the persons unlawfully detained in custody, but simply to free them from all illegal restraints upon their liberty. But this rule is not without its exceptions. It has been frequently held that the detention of a child of tender years from the one entitled to his custody amounts to illegal restraint, and that in a proceeding by habeas corpus, if he is not of sufficient age to determine for himself, the court or judge hearing the application must decide for him, and make an ordej for his being placed in the proper custody. Not being competent to govern and direct his own actions, he is not permitted to decide for himself what they shall be. The King v. Johnson, 2 Raymond, 1333; Rex v. Delorai, 3 Bur., 1436; Verser v. Ford, 37 Ark., 27; The People v. Kling, 6 Barb., 366; The State ex rel. Sharpe v. Banks, 25 Ind., 495; Church on Habeas Corpus, sec. 439.
Milligan v State, 97 Ind., 355, was an application by a foreign corporation. The Children’s Home of Cincinnati, Ohio, applied to a court of the state oflndianafora writ of habeas corpus. The object of the application was to obtain possession of a minor. The facts in that case were as follows : The Children’s Home of Cincinnati was a corporation organized under the laws of the state of Ohio, and as such had the lawful charge and custody of an infant, and had authority to procure for her a permanent home in a Christian family. By a written agreement executed at the city of Cincinnati, in the state of Ohio, the Home transferred the care, custody and education of the infant to the defendant. It was provided in . the statutes of Ohio, under which the home was incorporated, that its trustees and managers might remove a child from a home when in their judgment the same had become an unsuitable one; and that they should, in such case, resume the same power and authority they originally possessed. In the judgment of the trustees and managers of' the Children’s Home, the defendant’s home had become and was an unsuitable one for the child, and he was not a proper person to have the custody and management of such child, and the Home demanded of the defendant the surrender to it of the custody and control of the child, which was refused. The court held upon this state of facts,s that the Children’s Home had the right to remove the child from the home of the defendant, and to resume its original power and authority over such child, and decreed accordingly.
From the cases referred to it is clear that while the writ of habeas corpus is eminently the writ of liberty, and its office is to inquire into the ground upon which any person is restrained of his liberty, and, when it is found that the restraint is illegal, to deliver him from such illegal restraint, courts may in some cases of habeas corpus award the custody of such person to whom it may belong; While the great object of the writ is to restore the person unlawfully restrained to liberty, and that end is ordinarily attained by allowing the party improperly detained the free exercise of his volition, it will not restore him, in all cases, to a liberty to which he is not entitled and is incompetent to exercise. It would be contrary to reason to say that when a person shall be relieved by this writ of illegal restraints he should be allowed the free exercise of his own volition, when the law positively demands and commands he shall be held in custody.
The next question is, are the convicts named in the petition filed in this ease in unlawful custody ? It appears they are held under a contract made by Townsend & Fitzpatrick, former lessees and keepers of the state penitentiary, and the defendant, C. M. Neel, by which Townsend & Fitzpatrick hired them as so many chattels, and surrendered their care and custody to Neel. Had they authority to do so ?
4. Same: To reclaim convicts from unlawful custody.
The statutes of this state, under which Townsend & Fitzpatrick leased the state penitentiary, make it the duty of the lessee to provide the convicts with clothing, and with good and wholesome food ; to treat them humanely ; to preserve discipline among them by the enforcement of such rules as shall be prescribed by the penitentiary board of commissioners; and make it the duty of the board to appoint a physician of the penitentiary, whose duty it is to visit the convicts daily, and see that they are not inhumanly punished; that they are properly clothed; that they are sufficiently supplied with bed clothing; that they are not overworked; that they are sufficiently fed on good, healthy and sound food; that they are not worked when their state of health forbids; that their cells'are properly warmed and ventilated; that they are, in all things, whether within or without the walls, humanely treated; and to make a quarterly report to the board of commissioners; and make it the duty of the board, on receiving notice from the physician, or otherwise, that the lessee is inhumanely treating the convicts or not faithfully performing his duty as lessee, to notify the lessee; and on his failure or refusal to comply with the terms of his lease, or to treat the convicts humanely, to take such steps as may be warranted by law. These statutes impose all the duties to convicts upon the lessee. If he fails to perform them he suffers the penalty. No provision is made for the hiring of convicts by the lessee to other persons, and what their duties shall be and the penalty of their failure to perform them. All the duties to the convicts are to be performed by the lessee, and are such as necessarily preclude any idea that he can surrender the control and custody of the convicts to any other person. The requirements of the statutes are such as he only can perform by keeping the convicts in his custody. And to prevent any question in this respect the statutes expressly say he “ shall receive and receipt in duplicate for any person who shall be con victed by any federal or state court in this state and sentenced to confinement in said penitentiary, and shall keep any such person according to sentence until the expiration of the term thereof, unless sooner discharged by due course of law.” Mansf. Dig., secs. ¿881, ¿88¿, ¿890.
The rSlator is conceded to be the lessee and keeper of the state penitentiary. As such it is entitled to the exclusive custody of the state convicts. The convicts in question are unlawfully detained and held in custody by the defendants. This being true, it becomes the duty of this court to relieve them of this unlawful restraint, and award their custody to the relator. And it is so ordered. | [
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Oockrill C. J.
A father who was tenant by curtesy sold his life interest in his deceased wife’s lands, and at the same time, having obtained an order of the probate court for that purpose as guardian of his minor children, sold their estate in the lauds and invested the entire proceeds in the purchase of other real estate, taking the title to himself as guardian of the children. This was in 1873.
1 VanoeI púr0hase nyamhero^ Curtesy.6"’
He entered into possession after the purchase, put improvements on the land, enjoyed the rents and profits, and maintained his children. One of the daughters who is now married brings this action of ejectment against him for the possession of her undivided interest in the lands.
The father set up the facts above stated in his answer and prayed that he be allowed “to hold and enjoy said lands to his own use during his natural life, as by curtesy in lieu of his estate in the lands sold.” The court held upon demurrer that the answer presented no defense. The defendant submitted to judgment for the possession of an undivided interest in the lands and appealed.
No objection has been made to the plaintiff’s right to maintain an action at law for possession upon the deed to her father or guardian. The only question pressed here or below is the appellant’s claim to a life interest in the land.
First — The appellant had no estate as tenant by curtesy in the lands in suit, because his wife was never seized of them.
2. Same: Evidence.
Second — The purchase of land by the father in the name of his children is presumed to be an advancement to them by him, and the equitable as well as the legal estate vests in them. Kemp v. Cossart, ante; Robinson v. Robinson, 45 Ark., 481; Milner v. Freeman, 40 Ark., 62.
Where the proof does not make it clear and manifest that a trust only was intended by the purchase, equity follows the law and leaves the estate with the child. The father’s possession, making improvements and enjoying the rents after his purchase, were at one time held to evince the intention that an advancement was not intended. The doctrine, however, never had a firm foothold in authority, and is now exploded. Perry on Trusts, secs. 145-6. Lord Eldon said, in Finch v. Finch, 15 Vesey, 50, the principle that the purchase is presumed prima facie to be an advancement is not to be frittered away by refinements. Judge Story, in his work on Equity Jurisprudence, adds: “ It is perhaps rather to be lamented that it has ever been suffered to be broken in upon by any sort of evidence of a merely circumstantial nature.” 2 Story’s Eq., sec. 1203; Grey v. Grey, 2 Swans, 299; See Kemp v. Cossart, and Robinson v. Robinson, sup.
It may be an unfilial act, or as Lord Nottingham expressed it in Grey v. Grey, sup., “ not in good manners,” for the daughter to contradict the right of the father to the rents during his life, but his answer does not present the facts upon which the courts can interfere to prevent it.
Affirm. | [
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Smith, J.
Appellee, as administratrix of J. C. Eubanks, sued appellant in the Eranklin circuit court, alleging that she was the mother of the deceased, and administratrix, etc. That on the 7th day of October, 1884, her intestate was employed under a contract as brakeman on appellant’s railway, and that on or before that time appellant’s railway at the town of Ozark was in a defective condition, in this : “The defendant had constructed on its said road, and as a part of it on the track thereof at said pláce, a ‘switch’ and a ‘frog,’ which was so worn, ill-constructed and defective as to render it uusafe and unfit for use.” The complaint alleges knowledge by appellant of these defects, and that by reason thereof, and the unsafe condition of the road at that point, and appellant’s negligence, her intestate, while in the performance of his duty as brakeman under his contract, was thrown from the car, run over and killed.
The answer denies that the “switch” or “frog” was defective, ill-constructed or unfit for use, or that plaintiff’s intestate was thrown from the car and killed by reason of any such defects; denies that the deceased was free from negligence, and alleges that his death was caused by negligence on his part. The answer also sets up and relies upon the following contract, executed by the deceased before his employment by the defendant as a release of liability.
“Clinton Eubanks having been employed, at his request, by the Little Rock & Eort Smith railway in the capacity of brakeman, hereby agrees with said railway, in consideration of such employment, that he will take upon himself all risks incident to his position on the road, and will in no case hold the company liable for any injury or damage he may sustain, in his person or otherwise, by accidents or collisions on the trains or road, or which may result from defective machinery, or carelessness or misconduct of himself or any other employe and servant of the company.”
The issues were submitted to a jury, which returned a verdict fortthe plaintiff for $9360; upon which judgment was entered. A motion for a new trial was subsequently overruled; and a bill of exceptions was signed, saving the points hereinafter noticed.
The execution of the contract copied above was admitted by the plaintiff. But the court refused this prayer of the defendant: “If you find that before entering the ser vice of defendant, deceased executed the release, a copy of which is set out in defendant’s answer, you are instructed that by reason of said release plaintiff will be precluded from recovering anything in this suit, and you will find for defendant.”
A common carrier, or a telegraph company, cannot, by pre-contract with its customers, relieve itself from liability r for its own negligent acts. This, however, may be on the grounds of its public employment. Railroad Co. v. Lock-wood, 17 Wall., 357; Penn. R. Co. v. Butler, 57 Penn. St., 335; L. R., M. R. & T. R. Co. v. Talbot, 39 Ark., 523; St. L., I. M. & S. Ry. v. Lesser, 46 ib., 236; 1 Wharton on Contracts, see. 438.
1-B0^^SI.L" Release from liato
The validity of the contract before us is not affected by such considerations. The relation existing between the parties to it is essentially a private relation — that, namely, of master and servant. And the question is, whether a servant employed in the operation of dangerous machinery, can waive in advance the .duties and liabilities which the master owes him, and which do not depend on contract, but spring out of the relation itself. Of course if he can waive them so as to bind himself, a waiver will also bar his personal representative ; for the personal representative only succeeds to the right of action which the deceased would have had but for his death.
In 1880 the English parliament passed the “employer’s liability act,” the object of which was to make employers liable for injury to wmrkmen caused by the negligence of those having the supervision and control of them. In Griffith v. Earl of Dudley, 9 Q. B, Div. 357, it was held • that a workman might contract himself and his representatives out of the benefits of this act.
An opposite conclusion has been reached by the Supreme Courts of Ohio and Kansas. They hold that it is not com petent for a railroad company to stipulate with its employes, at the time of hiring them, and as a part of the contract, that it shall not be liable for injuries caused by the carelessness of other employes. (Lake Shore & M. L. R. R. Co. v. Spangler, Sup. Ct. of Ohio, 1886, 8 N. E. Rep., 467; Kansas Pacific Ry. Co. v. Peavey, 29 Kan., 169; S. C., 44 Amer. Rep. 630; S. C., 11 Amer. & Eng. R. R. Cases. 260.) In the notes to the last mentioned case, as reported in the two series of reports last cited, the substance of Griffith v. Earl of Dudley is set out. This, however, is not precisely the same question we have to deal with. For the negligence of a fellow sesvant is not in fact and in morals the negligence of the master, although by virtue of a statute it may be imputed to the master. It is impossible for the master always to be present and control the actions of his servants. Hence, a stipulation not to be answerable for their negligence, beyond the selection of competent servants in the first instance, and the discharge of such as prove to be reckless or incompetent, might be upheld as reasonable, notwithstanding a statute might abolish the old rule of non-liability for the acts and omissions of a co-servant.
But the Supreme Court of Georgia have, in several cases, sustained contracts like the one before us as legal and binding upon the employe, so far as it does not waive any criminal neglect of the employer. The effect of these decisions is, that the servant of the railroad company, for instance, not only takes upon himself the incidental risks of' the service, but he may, by previous contract, l’elease the company from its duty to furnish him a safe track, safe cars, machinery and materials, and suitable tools to work with. Western & Atlantic R. Co. v. Bishop, 50 Ga., 465; W. & A. R. Co. v. Strong, 52 ib., 461; Galloway v. W. & A. R. Co., 57 ib., 512.
On the other hand, in Roesner v. Hermann, 10 Bissell, 486; S. C., 8 Federal Reporter, 782, a contract by a master against his own negligence, was declared to be void as against public policy. Gresham, J., saying: “If there was no negligence, the defendant needed no contract to exempt him from liability; if he was negligent, the contract set out in his answer will be of no avail.” Compare Memphis & Charleston R. Co. v. Jones, 2 Head, 517, where it was decided that such a contract would not protect the master against gross negligence.
It is an elementary principle in the law of contracts that “modus et conventio uineunt legem,” the form of agreement and the convention of' parties overide the law. But the maxim is not of universal application. Parties are permitted, by contract, to make a law for themselves only in cases where their agreements do not violate the express provisions of any law, nor injuriously affect the interests of the public. Broom’s Legal Maxims [*543]; Krettle v. Newcomb, 22 N. Y., 249.
Our constitution and laws provide that all railroads operated in this state shall be responsible for all damages to persons and property done by the running of trains. Const. 1874> art• 17, see. 12; Mansf. Dig., sec., 5537.
This means that they shall be responsible only in cases where they have been guilty of some negligence. And it may be questionable whether it is in their power to denude themselves of such responsibility by a stipulation in advance. But we prefer to rest our decision upon the broader ground of considerations of public policy. The law requires the master to furnish his servant with a reasonably safe place to work in, and with sound and suitable tools and appliances tq do his work. If he can supply an unsafe machine, or defective instruments, and then excuse himself against the consequences of his own negligence by the terms of his contract with his servant, he is enabled to evade a most salutary rule.
In the English case above cited it is said this is not against public policy, because it does not affect all society, but only the interest, of the employed. But surely the state has an intetest in the lives and limbs of all its citizens. Laborers for hire constitute a numerous and meritorious class in every community. And it is for the welfare of society that their employers shall not be permitted, under the guise of enforcing contract rights, to abdicate their duties to them. The consequence would be that every railroad company and every owner of a factory, mill or mine, would make it a condition, precedent to the employment of labor, that the laborer should release all right of action for injuries sustained in the course of the service, whether by the employer’s negligence or otherwise. The natural tendency of this would be to relax the employer’s carefulness in those matters of which he has the ordering and control, such as the supplying of machinery and materials, and thus increase the perils of occupations which are hazardous, even when well managed. And the final outcome would be to fill the country with disabled men and paupers, whose support would become a charge upon the counties or upon public charity.
2. Same: track6Evijury. °e'
II- The next question is, whether the testimony is sufficient t° support the verdict. The freight train, upon which the deceased was a brakeman, was bound for Eort Smith, but. had stopped at Ozark station about 11 p. m., and the trainmen were engaged in switching off cars from the main track toa sidetrack. The plaintiff’s intestate was assisting in this operation, being on top of one of the cars with a lantern in his hand. The evidence does not show clearly what it was that caused him to fall between the cars. But it is probable that he was thrown off by the jolting of the car, and that this jolting was produced by the car having left the track. The theory of the plaintiff’s case was that there was a defect in the “switch,” or in the “ frog,” or in both, which caused the car to run off at that particular place.
The substance of the testimony on this point was as follows :
J. V. Bourland, for plaintiff', testified: “It was about 11 o’clock at night when I rushed to the railroad. They were taking deceased from under the wheels. It was about twelve to fifteen feet from the ‘ frog ’ towards the depot. He was lying across the track. Could see where the border or flange of the wheel cut the rail and frog; think the car got off at the frog, and it jumped across the ties. Heard trains had got off there before; knew of as many as two or three getting off there. Conductor and two or three others were there. Don’t know how many ears were attached to engine. Think both trucks of second car from rear of train were off'; the wheels on one side of the car were off. Don’t know whether the track is in good or bad repair. About fifteen or twenty feet south of the frog is where the man was killed. I know of no cars being off there before. Judge from indentations on the ties; don’t know how long they had been there; Judge from the sear on the frog that the car wheels ran on top of it and the track about two feet. Don’t know how long the scar had been there, or if it had been made by this car; am satisfied the sear I saw on the frog was made by this car running off. Did not examine on the outside of ties or switch rail to see if there were any indentations on the ties. Was there next morning. Saw scars on the old ties where the accident occurred. Two or three days afterward these old ties were gone and new ones in. Live at Ozark. Was never employed on a railroad.”
Henry Woollum: “Don’t remember exact tirtxe of tbe accident. Was in Argenta at the time running as fireman on an c extra.’ Was at Ozark six or eight days before going into defendant’s employ. Don’t know as to condition of switch at time of accident, but afterwards it was bad. Shortly after the accident was yard-master of this yard, and' was notified by engineers that this switch was in bad condition. Notified section foreman, whose duty it was to fix it; also told McLoud, road-master. The train-dispatcher gave notice to me two or three times to run slow over that switch. This was the train-dispatcher under Mr. Hartman, three years ago, while I was running an engine. [Evidence of above notification of condition of track, switch, etc., objected to; objection overruled and exception saved.] The defect in the switch was that the switch rail was one and one-half inches lower than tbe main track. An engine got off the track there one night and I tried two or three times to get over and could not do so. The foreman came down and fixed it. The wheel would drop between the switch and- main rail. This was two months after the accident occurred, and while I was yardmaster. It would throw the train to north side of track; could throw it south. Kile, the section boss, fixed it. Did not notice ties cut by wheels. Switch fails are between main rails of track. It was a ‘ split ’ switch. Engine was hard to getov§r; cars would go over because so much lighter. It is the duty of road-master and section foreman to look after track. I knew there was a defect there, but not what it was. Was notified switch was defective after accident occurred; could not see any defects. I went and looked. Every time engine would go off to the north side. Have been in railroad business about nine years. This frog and switch are the kind usually used. I made no report of defects to officers of road. Looked at track inside of fifteen days after accident. Had coal cars off here while engineer. Cause of engine jumping was that switch rail was lower than main rail.”
None of the remaining witnesses for the plaintiff professed to have any knowledge of the condition of the track; but two of them stated that they had seen a car off the track about the same place recently before the accident occurred.
Eor the defendant the following witnessess testified :
L. Treadway : “Was conductor of the train and handling the switch, switching cars; gave signal to back; heard jumping and signaled to stop. Went down to where car was ; saw it was Eubanks under the ear, and said: ‘ My God ! How did he' get over there?’ Saw signal from man on top of second car from rear end to ‘ come back ;’ did not see him afterwards. He was killed eight or ten feet east of frog, and one hundred and eight or ten feet east of switch ; body was under last pair of trucks of second car at the rear of train. Had been handling switch thirty-five or forty minutes. It was all right and a good one. I examined car and track after the accident; both were all right. I pulled the car over the ties up to the frog to get it back on. The track at this point has been good ever since I’ve been on the road — eighteen months. The car rolled about six feet after it jumped; only one pair of trucks off. He was my rear brakeman, and his position was rear-brakeman on train or caboose. He ought to have stayed in rear of the train and caught cars as they came back. He was in the head brakeman’s place, and I gave him no orders to change. Brakemen were all under my orders. I did not know of the change until after his death. We passed over this track ten or fifteen times that night before the accident. Car ran off because of something on the track to throw it, not on account of de fective ‘ frog.’ The signs on the ties were made by us in trying to get the car back on track. It is the duty of the yard-master and section boss to look after the track; McLoud and Kyle filled those positions ; both competent men. There was no defect in the switch, frog or track in any respect. Am not in defendant’s employ now. Had three brakemen. It was necessary for some one to be on top of car with engine. I would be willing to swear point blank that it was the body of the man that threw the car off'. It is a brakeman’s duty to do work anywhere on the train when necessary. After a brakeman has been assigned to a position he has no right to change places without orders from conductor. I gave no such orders in this case, nor knew of it until I found deceased dead.”
McLoud: “Am road-master, and have charge of the track. Was at place of accident the morning after it occurred ; examined track, switch and frqg, and found everything all right. Nothing has been done to change switch, frog, or anything else, since the accident. New switch ties were put in a day or two before injury, and were all right; trains ran over the track the day and night before the injury ; nothing was the matter with the track. It is necessary for the point of the switch rail to be a little lower than main rail, so as to slip under in order to make the switch.1' If a car passes the frog and gets ofl, it would require something to throw it off; both switch, frog and track were in good condition at the time, and are now. If switch is being made and frog is defective, and the car leaves the track, it would go off on north side. There is a little open place between the rails at frog, and if the wheels strike the point of frog it would go through this and off the north side. Mr. Kyle is section foremau, and a competent man.”
Kyle: “Was section foreman, and duty to keep track in good order. Came down morning after accident, gauged1 the track and found it all right; switch, frog and track were in good condition. I put in ties day before the accident, surfaced, leveled and gauged the track. All regular-trains passed over day before the accident. No report was ever made to me that track was defective. About two-months before the accident a king bolt broke on a lumber car and threw it off near the water tank. The frog is east of switch eighty feet. I put in new ties October 8th ; the accident occurred next night. Put new ties from point of switch up to and five under the frog. I have done no work there since. Have been railroading twenty-one years.”
John Edwards: “Was a hand under Mr. Kyle. There was nothing wrong with the switch, frog or track; they are the same to-day as then, no work having been done there since.”
The evidence of Dock Smith and Charles Cole was in substance same as Edwards’.
Aside from the testimony of Woollum, there is nothing here that tends to prove the existence of the defect complained of; and Woollum’s testimony, when analyzed, will be found to be vague, inconclusive and contradictory, based largely on hearsay, and relating chiefly to times long antecedent or subsequent to the accident. He says expressly that he was not acquainted with the condition of the switch at the time of the accident. His statements as to its condition three years before the trial and some twenty-one months before Eubanks was killed, should have been excluded. Proof of what occurred two months afterwards was also irrelevant to any issue that was before the jury, being too remote to afford any fair inference.
The evidence in such cases should be confined to the time, place and circumstances of the injury and negligence then and there. Parker v. Portland Publishing Co., 69 Me., 174; G. R. & Ind. Ry. Co. v. Huntley, 38 Mich. 341.
' Where a defective track is alleged to be the cause of the •casualty, it is often impracticable to adduce evidence of the •condition of the track at the precise moment the casualty ■occurred. It is enough to prove such a state of facts shortly before or after as will induce a reasonable presumption that the condition is unchanged.
Woollum had not examined the track before the accident; nor can his examination afterwards be brought nearer than fifteen days. Assuming thatthere was nochangeof condition within that time, the only defect he was able to discover was that the switch rail was a little lower than the main rail. He does not seem to be very positive that this was a defect which could be remedied, and the evidence for the defendant shows that it is necessary for the point of the switch rail to be lower than the main rail, so as to slip under in order to make a switch.
„ 3. Liabiiptioye°as1to
The evidence, then, is lacking on a material point which it was essential for the plaintiff to establish, that the apliance was defective. It may be said this was a question for the jury. But the jury could not infer it without proof. The duties of a railroad company to its servants in these matters are not measured by the same rule that is applied in the case of passengers. “Railways do not warrant to their servants the safe condition of their line and machinery ; and they guarantee only that due care shall be used in constructing and in keeping in repair, and in operating the line, appliances and machinery.” Patterson’s Railroad Accident Law, sec. 284, and cases cited; L. R. & Ft. S. Ry. Co. v. Duffey, 35 Ark., 602; St. L , I. M. & S. Ry. v. Harper, 44 ib , 529; St. L., I. M. & S. Ry. v. Morgart,45 ib., 318; Probst v. Delawater, 100 N. Y., 266.
So far as appears, the deceased lost his life by a casualty, which, in the absence of evidence showing that the defendant was in fault, must be ascribed to the ordinary risks incident to his employment. L. R. & Ft. S. Ry. v. Townsend, 41 Ark., 382.
The testimony fails to establish the defense of contributory negligence. Eubanks merely exchanged places with one of his fellow-brakemen, without orders from the conductor. Although it is probable he would not have been injured if he had remained in the position to which he had been assigned, yet it is not shown that the place he assumed was more dangerous than the one he vacated. In this connection we- notice the court charged that the plaintiff must prove that her intestate was free from fault or negligence. This was an error in favor of the defendant, and we only call attention to it for the purpose of another trial. Contributory negligence is a defense to be affirmatively proved. It will be presumed the injured party was in the exercise of due care until the contrary is made to appear.
4. CONTRIBUTO ET Negligence: Proof.
In other respects the jury was properly charged, except that the court should have granted this prayer of the defendant : “ If you find the defects relied on in this action were such as are common to railroads, and such as could not have been avoided by reasonable care and attention on the part of defendant, you will find for defendant.”
5. Same: Employe: Action for defects, etc
A direction of this sort was necessary to guard the jury against being misled by the testimony in relation to the difference in height between the main and switch rails.
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KENNETH S. HIXSON, Judge
| ¶After a jury trial in Independence County Circuit Court, appellant Akeem Al-lajowuan Lewis was convicted of two counts of second-degree murder in the shooting deaths of John L. Weeams and Omar Scales. Appellant was sentenced to consecutive eight- and twenty-year prison terms, respectively. On appeal, appellant argues (1) that the State failed to negate his justification defense, and (2) that the trial court abused its discretion in running his sentences consecutively instead of concurrently. We affirm.
Appellant’s criminal charges were the result of a shootout between John L. Weeams and appellant. The shootout happened at a night-time gathering on July 6, 2013, at Bennie Dodd’s residence located at 295 Dry Run Circle in Batesville, Arkansas. Appellant concedes on appeal that he shot both victims, although shooting Omar Scales was accidental because Scales was an innocent bystander. Appellant’s first argument is that he raised the defense of | ^justification and that the State failed to carry its burden to disprove that defense beyond a reasonable doubt. We disagree with his argument.
Justification becomes a defense when any evidence tending to support its existence is offered, and once raised, it becomes an element that must be disproved by the State beyond a reasonable doubt. Green v. State, 2011 Ark. App. 700, 2011 WL 5562803. Whether one is justified is largely a matter of the defendant’s intent and is generally a fact question for the jury. Id. A defendant’s intent is ordinarily not subject to proof by direct evidence but must usually be established by circumstantial evidence. Id. Critical to this inquiry is the reasonableness of the accused’s apprehension that he was in danger of death or of suffering great bodily harm. Id. Also critical is whether the accused used all reasonable means within his power and consistent with his personal safety to avoid the use of deadly force. Id; see also Ark.Code Ann. § 5-2-607 (Repl. 2006).
As requested by defense counsel, the jury was instructed on the justification defense as to the murder of Weeams based on Arkansas Model Jury Instruction — Criminal 705:
Akeem Lewis asserts as a defense to the charge of second degree murder that deadly physical force was necessary to defend himself. This is a defense only if; First, Akeem Lewis reasonably believed that John Weeams was committing or was using or about to use unlawful deadly physical force; And second, Akeem Lewis only used such force as he reasonably believed to be necessary.
A person is not justified in using deadly physical force if he knows that the use of deadly physical force can be avoided with complete safety by retreating. However, he is not required to retreat if he was not the original aggressor.
IsAkeem Lewis is asserting this defense and is required only to raise a reasonable doubt in your minds- Reasonably believes or reasonable belief means the belief that an ordinary, prudent man would form under the circumstances in question and one not recklessly or negligently formed.
When reviewing the sufficiency of the State’s negation of a justification defense, the appellate court employs a substantial-evidence standard of review. Jones v. State, 2011 Ark. App. 92, 2011 WL 589113. Substantial evidence is evidence that is forceful enough to compel a conclusion beyond suspicion and conjecture. Id. We view the evidence in the light most favorable to the State and consider only the evidence that supports the verdict. Id. We will not reverse the jury’s decision in rejecting a justification defense unless the verdict required speculation and conjecture. Moody v. State, 2014 Ark. App. 538, 444 S.W.3d 389. The jury, not our court on appeal, weighs the evidence and judges credibility of witnesses. Id. The fact-finder is not required to set aside common sense and need not view each fact in isolation, but rather considers the evidence as a whole. Williams v. State, 96 Ark. App. 277, 241 S.W.3d 290 (2006). Flight is probative evidence of guilt. Gillard v. State, 366 Ark. 217, 234 S.W.3d 310 (2006).
Testimony at the jury trial revealed the following. There was a party at Mr. Dodd’s residence that night. Weeams and appellant were both outside, on or near Dodd’s porch, shortly before the shooting started. The men exchanged words; it was interpreted as “a verbal altercation” between the two. Moments later, the men started shooting at one another. Weeams fired his .38 revolver several times in appellant’s direction, and appellant fired his 9mm semiautomatic weapon several times in Weeams’s direction. Appellant then fled on |4foot. Weeams was struck by one bullet in the upper left chest; that bullet exited his back slightly lower and toward the right side. Weeams bled to death at Dodd’s house.
Scales was nearby but not involved in this gunfight; he was struck in his torso near his pelvis. Although conscious at the scene, Scales was transported by ambulance to the local hospital, where he died. A 9mm bullet was removed from Scales’s body at autopsy.
The jury had to decide, among other things, who drew his weapon and began firing first and whether appellant was justified in acting as he did. Datra Strick land testified that she and Weeams were living together at the time of his death, and she was with him at the gathering at Dodd’s house. She said that although she had been drinking at the gathering, she was clear on the circumstances of the shootout. She said that she and Weeams were on Dodd’s porch, about five feet away from appellant, when appellant made a comment to Weeams, pulled a gun from his pants, and started shooting. Strickland testified that Weeams fired many shots in return but that appellant’s gun fired a lot faster than Weeams’s gun. She saw appellant run away. When it was over, she and Weeams went inside Dodd’s house and sat on Dodd’s couch. Very soon she observed blood coming out of Weeams’s mouth. Strickland called 911, but Weeams died on the scene.
Sergeant Shawn Stephens testified that in responding to the call just after 8:00 p.m., and in speaking with Strickland, she described appellant as a lighter-skinned, tall, thin African-American man in his twenties. According to Stephens, Strickland told him that she did not know what happened.
| sAnother person at Dodd’s house that night was Robert Tosh Smith (a/k/a “Juk-ie”). Smith was interviewed by law enforcement officers three days after the shooting. In that recorded interview, Smith told officers that appellant was the first to pull his 9mm gun out and start shooting at Weeams. Smith described appellant firing his gun, running backward off the porch, and continuing to fire as he ran toward the street. Smith provided a handwritten statement the same day, reflecting this same course of events. Smith testified, however, that he later “made a correction” by telling law enforcement that Weeams was the first to pull his .38 revolver. Smith agreed that the recorded interview with officers was his “best recollection at that particular time,” but stated that he was pretty traumatized by the shooting. On the stand, Smith testified that he saw Weeams pull his gun first, but “I mean it seemed like it was at the same time.” Appellant did not testify at trial.
Appellant argues that because these were the only two witnesses to the actual shooting, and because Strickland was not credible and Smith’s testimony at trial was that Weeams was the aggressor, the State failed to disprove the justification defense beyond a reasonable doubt. We disagree.
The jury is free to accept or reject any part of a witness’s testimony, and credibility and the weight to give any evidence are issues left solely to the jury. Moody v. State, supra. The jury decides whether the circumstantial evidence excludes every hypothesis consistent with innocence, and it turns largely on what the jury concluded regarding appellant’s intent. Id. Because there was evidence from which the jury could find appellant not to be justified in his use of deadly force in this instance, we affirm on this point.
| ^Appellant’s other argument on appeal is that the trial court abused its discretion in ordering that the eight- and twenty-year prison sentences run consecutively instead of concurrently. The State contends that this issue is not preserved for appellate review, and alternatively, that appellant fails to demonstrate an abuse of discretion. We reach the merits of the argument and affirm.
Prior to the pronouncement of sentence, appellant’s attorney requested that the trial court exercise its discretion and be merciful by running the sentences concurrently. The prosecutor asked that they run consecutively. The trial court ruled as follows:
[H]aving heard all the evidence in this case and also the argument presented as to whether the sentences should run concurrent or consecutive, the Court will exercise its discretion and order that the sentences run consecutively for a total of twenty-eight years to serve in the Arkansas Department of Correction.
This issue was preserved for our review.
To the merits, when multiple' sentences of imprisonment are imposed on a defendant convicted of more than one offense, the sentences shall run concurrently unless, upon recommendation of the jury or the trial court’s own motion, the court orders the sentences to run consecutively. Ark.Code Ann. § 5-4-403(a) (Repl. 2006). The question of whether sentences should run consecutively or concurrently lies solely within the province of the trial court. Throneberry v. State, 2009 Ark. 507, 342 S.W.3d 269. The exercise of that discretion will not be altered on appeal ■unless it is clearly shown to have been abused. Steele v. State, 2014 Ark. App. 257, 434 S.W.3d 424. The appellant assumes a heavy burden of demonstrating that the trial judge failed to give due consideration to the exercise of his discretion in the matter of consecutive sentences. Id; see also Bunch v. State, 344 Ark. 730, 43 S.W.3d 132 (2001); Turner v. State, 2012 Ark. App. 150, 391 S.W.3d 358. The circuit court must actually exercise discretion in sentencing. Throneberry v. State, supra.
Here, the jury heard testimony from some members of the victims’ families that, although pained by their losses, they had forgiven appellant for killing their loved ones. Appellant took the stand and asked for mercy. The jury was not asked to, and thus did not, make a recommendation as to concurrent or consecutive sentencing.
Appellant was exposed to six-to-thirty years, up to a $15,000 fine, or both on each count of second-degree murder. The jury sentenced appellant to eight years for the second-degree murder of Weeams and to twenty years for the second-degree murder of Scales. The trial judge sentenced appellant to consecutive sentences totaling twenty-eight years rather than concurrent sentences totaling twenty years. Appellant’s sentence is well within the statutory sentencing range, even for a single count of second-degree murder. The judge’s commentary demonstrates that he exercised his discretion in ordering consecutive sentences, and appellant has failed to demonstrate an abuse of that discretion. Thus, we affirm on appellant’s second point on appeal.
Affirmed.
Gladwin, C.J., and Whiteaker, J., agree.
. Defense counsel did not request a justification defense instruction with regard to the murder of Scales. The jury was, consequently, not asked to consider justification as to that count of second-degree murder.
. Appellant allegedly said to Weeams just pri- or to the shootout, "I'm about what I'm talking about." | [
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RITA W. GRUBER, Judge
|;Anita Harbin appeals the circuit court’s May 8, 2014 order that terminated her parental rights to B.T., who was born on November 2, 2011. Harbin challenges the circuit court’s finding that statutory grounds of unfitness existed for termination. She also contends that there was not sufficient evidence to support the court’s finding that B.T. would be subject to potential harm if returned to appellant’s care. We affirm.
Our review of termination-of-parental-rights cases is de novo. Dinkins v. Ark. Dep’t of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). Grounds for termination must be proven by clear and convincing evidence, which is such a degree of proof that will produce in the fact-finder a firm conviction as to the allegation sought to be established. Hughes v. 2Ark. Dep’t of Human Servs., 2010 Ark. App. 526, 2010 WL 2522197. Our inquiry is whether the trial court’s finding that the disputed fact was proven by clear and convincing evidence is clearly erroneous. Id. Credibility determinations are left to the fact-finder. Schaible v. Ark. Dep’t of Human Servs., 2014 Ark. App. 541, 444 S.W.3d 366.
The intent of our termination statute is to provide permanency in a minor child’s life in circumstances where returning the child to the family home is contrary to the child’s health, safety, or welfare, and where the evidence demonstrates that the return cannot be accomplished in a reasonable period of time as viewed from the child’s perspective. Ark. Code Ann. § 9-27-341(a)(3) (Supp. 2013). The child’s need for permanency and stability may override the parent’s request for additional time to improve the parent’s circumstances. Schaible, 2014 Ark. App. 541, at 8, 444 S.W.3d at 371. The issue is whether the parent has become a stable, safe parent able to care for the child. Id. The court may consider the parent’s past behavior as an indicator of future behavior, and even full compliance with the case plan is not determinative. Id.
Termination of parental rights is a two-step process requiring a determination that the parent is unfit and that termination is in the best interest of the child. Jessup v. Ark. Dep’t of Human Servs., 2011 Ark. App. 463, 385 S.W.3d 304. The first step requires proof of one or more statutory grounds for termination; the second step, the best-interest analysis, includes consideration of the likelihood that the juvenile will be adopted and of the “potential harm ... caused by returning custody of the child to the parentf.]” Ark. Code Ann. § 9-27-341(b)(3)(B), (b)(3)(A) (Supp. 2013); Schaible, 2014 Ark. App. 541, 444 S.W.3d 366. In determining potential harm, which Ris forward-looking, the court may consider past behavior as a predictor of likely potential harm should the child be returned to the parent’s care and custody. Dowdy v. Ark. Dep’t of Human Servs., 2009 Ark. App. 180, 314 S.W.3d 722. There is no requirement to establish every factor by clear and convincing evidence; after consideration of all factors, the evidence must be clear and convincing that termination is in the best interest of the child. Jessup, 2011 Ark. App. 463, 385 S.W.3d 304.
In the present case, the Arkansas Department of Human Services (ADHS) filed its petition for emergency custody and dependency-neglect of B.T. on September 6, 2012. Attached to the petition was an affidavit by family-services worker Susan Morrow about visiting appellant’s home on September 4, 2012, to investigate a report to the child-abuse hotline. According to the caller, an ambulance had been called because appellant “was out of her mind” and B.T. had been sent away with a family member. That day, when someone tried to wake appellant over concern about the length of time B.T. was sleeping, appellant began spinning in circles and calling out “Momma, Momma.” A call to 911 was made, and the ambulance took appellant to the hospital for a possible overdose or reaction to something she had ingested. Morrow subsequently met with appellant, who said that her aunt took B.T. from the home and that B.T. was with appellant’s cousin Carissa, whose last name appellant did not know. When Carissa returned B.T. to the home, Morrow saw appellant pick up B.T., walk a few steps, make a telephone call, and — with no apparent regard for the child in her arms — begin yelling into the phone and bending over. Appellant said that she did not use drugs, but she tested positive for methamphetamine and benzodiazepine. ADHS then took 14a seventy-two-hour hold on B.T., and she was placed in ADHS’s legal custody by an ex parte order for emergency custody.
On September 26, 2012, the circuit court adjudicated B.T. dependent-neglected due to appellant’s drug use and irrational behavior while supervising B.T. The court found that it was contrary to B.T.’s welfare to be returned to appellant’s custody. The goal of the case was established as reunification. Appellant was ordered to cooperate with ADHS, follow the case plan, refrain from using or possessing controlled substances, submit to random drug screens, and obtain a drug-alcohol assessment and follow its recommendations.
At the February 20, 2013 review hearing, the circuit court again found that returning B.T. to appellant was contrary to B.T.’s welfare. The court found that appellant had partially complied with the case plan and court orders; specifically, she had failed to provide proof of drug therapy. The court stated that appellant needed “to work on stable housing, counseling, and providing documentation of completion of services.” She was again ordered to cooperate with ADHS, follow the case plan, refrain from using or possessing controlled substances, submit to random drug screens, and obtain a drug- alcohol assessment and follow its recommendations.
On August 14, 2013, the day of the permanency-planning hearing, ADHS filed its petition to terminate parental rights. In the August 26, 2013 permanency-planning order, the circuit court found that appellant had been minimally compliant with the case plan:
She has recently obtained housing, but has since entered in-patient treatment and will now have to establish a safe, stable home prior to reunification, and now receives disability income. She has also completed parenting classes. The mother passed random drug screens on 4/4/13, 4/17/13, and 7/3/13. The mother has not attended drug counseling or | ¿mental health counseling, which were designated to address the issues that caused removal. The mother failed a random drug screen on 6/6/13 for methamphetamine and THC.
(Emphasis added.) The court found that B.T.’s biological father, John Timberlake, was completely noncompliant: he had no stable housing or income, failed to attend counseling, had an open ADHS case concerning his other children, and had a true finding for sexual abuse. The court found it contrary to B.T.’s welfare to be returned to the custody of a parent, and the goal of the case was changed to adoption.
ADHS alleged in its termination petition that terminating appellant’s parental rights was in B.T.’s best interest and that appellant was unfit under statutory grounds including these:
That B.T. had been out of her custody for at least twelve months, and despite meaningful effort by ADHS to remedy the issues causing removal, those issues had not been remedied. Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a).
That, subsequent to the filing of the original dependency-neglect petition, other factors arose demonstrating that returning B.T. to appellant’s custody “is contrary to [B.T.’s] health, safety or welfare and that despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parent’s circumstances which prevent return of [B.T.] to the custody of the parent.” Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a).
The termination hearing took place on October 28, 2013 (five days before B.T.’s second birthday), and December 4, 2013. Miranda Monroe, appellant’s caseworker throughout the case, explained on October 28 why she was recommending termination even though appellant was “substantially compliant” with the case plan: appellant was noncompliant at the August 2013 hearing, only recently returned for mental-health counseling, and finished drug-treatment counseling only twenty days before the termination | shearing. Appellant’s mental-health and drug-treatment services were through the Wilbur D. Mills program, and she was currently an inpatient in the Kay Goss program — a part of Wilbur D. Mills — where services included drug counseling, support groups, and random drug screens, and where residents could be kicked out for using drugs or breaking rules. Monroe testified that appellant tested positive for meth and THC in June 2013, that later drug screens were negative, but that there was a period of time when ADHS could not find her for the screens. Monroe recommended termination because appellant had shown no stability in a drug-free life, a stable home, or parenting:
[I]i’s all very late. And as far as stable housing, she has not done that. As far as her remaining drug free, there’s not been a very long period of time. It’s only been since she has [gone] into Wil bur D. Mills. I mean, she has not been staying drug free since shortly after this case opened. It’s just been since ... we stated that we want to change the goal to adoption that she has decided to become compliant.
(Emphasis added.)
In December 2013, appellant testified that she used methamphetamine in June 2013 and lived with Timberlake and different friends, tried to find residence at shelters, and slept in an abandoned home before she began drug treatment. She testified that she relapsed and used drugs after she walked into a house where two people had been shot and meth was being cooked; one victim, Timberlake’s six-month-pregnant cousin, had been shot in the head and killed. Appellant testified that Paul Hicks, her current boyfriend of a month-and-a-half, was a convicted felon with alcohol problems; they had met at church; he was an outpatient at Wilbur D. Mills; they regularly attended AA/NA meetings; and they had been told that relationships with other former addicts could lead to relapse. Monroe testified that appellant 17had continued to live with Timberlake until June 2013 despite being told around February 2013 that he had a “true finding” of sexual activity with a minor. The circuit court took the case under advisement.
On February 19, 2014, the court announced its findings in open court. First, the court found that termination of appellant’s parental rights was in B.T.’s best interest because of the likelihood that B.T. would be adopted and because of potential harm to her health and safety should she be returned to appellant. The court then turned to statutory grounds for termination, finding that B.T. had been adjudicated dependent-neglected and had continued outside the home of the parent for more than twelve months despite a meaningful effort by the department, and that conditions that caused removal had not been remedied:
I’ll specifically find that at the time of removal John Timberlake is who she was living with, which obviously caused me a great deal of concern. At this time my concern is the new boyfriend who she engaged in a relationship in ... the eleventh hour of the case. His criminal history including felony convictions for violence. The fact that he was previously in prison.... They met in drug rehab. He obviously has his own set of addictions and problems as does she.... [Tjhat’s really a concern that in the eleventh hour of a case ... knowing that your parental rights are on the line ... you would engage in a relationship with someone that you met in drug rehab.
I am concerned about the continued drug usage of the mother late in the case. I’m also concerned ... that she continued to live with John Timberlake early in the case, from February 2013 through June 2013, knowing that he was a sex offender- I’m also concerned that throughout the case she spent time with people engaged in criminal activity. I was very'concerned about the evidence presented where [she] was at a meth lab where she witnessed someone getting shot in the head ... She did complete a program ... very, very late in the game. I’ll find it eleventh hour compliance. And, like I said, at this time her boyfriend is a felon who just got out of drug rehab.
The other big concern I have is that ... in the course of this case, ... close to the year mark there were kids that were, in her custody in White County while she was living with John Timber-lake in a White County case, and those kids came into |sfoster care. And there’s a White County Dependency Ne- gleet Case now and she was in the home at the time those kids were removed ....
The court reiterated its finding that it was in B.T.’s best interest to terminate parental rights.
The court’s written order of termination set forth two statutory grounds of Ark. Code Ann. § 9-27-341 (b)(3)(B):
(i)(a) That a juvenile has been adjudicated by the court to be dependent-neglected and has continued to be out of the custody of the parent for twelve (12) months and, despite a meaningful effort by the department to rehabilitate the parent and correct the conditions that caused removal, those conditions have not been remedied by the parent.
(vii)(a) That other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that placement of the juvenile in the custody of the parent is contrary to the juvenile’s health, safety, or welfare and that, despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parent’s circumstances that prevent the placement of the juvenile in the custody of the parent.
In her first point on appeal, appellant contends that the circuit court clearly erred in finding statutory grounds for termination. She argues that, even if her compliance was eleventh hour, her six-month sobriety left no question that she had remedied the condition causing removal. She points to Kight v. Arkansas Department of Human Services, 87 Ark. App. 230, 189 S.W.3d 498 (2004) (Kight I), where we reversed an order terminating the mother’s parental rights to two children.
|9In Kight I, A.W. was removed due to Right’s drug use in July 2002 and L.M. was removed at birth in January 2003 because mother and child tested positive for cocaine. The circuit court terminated Right’s parental rights to A.W. on the statutory grounds that the conditions causing removal had not been remedied and that A.W. had been out of the home for more than twelve months; regarding L.M., termination was due to little likelihood that reunification would result; and as to both children, termination was in their best interests. We concluded that the reason for A.W.’s removal was not that Right was an unfit parent or unable to care for her child, but drug abuse — which she corrected after A.W.’s removal. We noted that Right followed the court’s directive for treatment following AW.’s removal by enrolling in Freedom House, where her drug tests were negative from July 2002 through December 2002, but that she but tested posi tive in January 2003. Following her positive test, she enrolled in Chance Sobriety. CASA originally recommended a ninety-day stay, but she completed six months of residential drug counseling there. The caseworker testified that she was prepared to return A.W. to the home. We noted the testimony of Chance’s Ben Perkins regarding Right’s improvement: she had been drug free for the entire program, even after | inutilizing unsupervised weekend passes and spending some of them in the home of a man who abused drugs; she had responsibilities in the house, including oversight of other patients’ drug testing; and he believed that she would be successful once she reentered society. We noted that A.W. was initially stable with Eight— doing well in her care despite her drug abuse — and was not removed from the home in 2001 when ADHS began its investigation. We concluded that Eight, by maintaining full-time employment while at Chance and remaining clean and sober for over six months, had done exactly what DHS asked her to do. Regarding L.M., we found that the sole reason leading to removal was Right’s one-time drug relapse and that she had corrected the condition leading to removal.
The present case is easily distinguishable from Right I regarding failure to remedy conditions. As the circuit court noted, adjudication occurred in September 2012 and appellant did not complete drug treatment until October 2013. Her live-in boyfriend, Timberlake, had continuing drug issues to the point that ADHS became involved with him and his older children from their home. Appellant did diligently comply with the ease plan after B.T.’s removal and did not enter drug treatment until the goal was being changed to adoption, which appellant’s caseworker believed was appellant’s only motivation for complying. Appellant made no progress until she was in the restrictive environment at Wilbur D. Mills and did not complete drug treatment until B.T. had been out of her custody for over a year. Even on the final day of the termination hearing, she was in a relationship with a former addict and it was unknown if she would remain drug free outside the confines of the rules and regulations of her current inpatient treatment. We hold that the circuit court |ndid not clearly err in finding that appellant failed to remedy the drug abuse that led to B.T.’s removal.
Appellant also argues that she had no notice of the subsequent-factors statutory ground for termination. This argument is not preserved for review. After twice objecting at the termination hearing to questions regarding her boyfriend, her counsel replied affirmatively when the circuit court specifically asked if the objection was to relevance. We will not address on appeal arguments that were not raised to the trial court. Lamontagne v. Ark. Dep’t of Human Servs., 2010 Ark. 190, 366 S.W.3d 351.
As her second point on appeal, appellant contends that the circuit court clearly erred in finding that termination was in B.T.’s best interest and that B.T. would be subject to potential harm if returned to her care. Appellant argues that she substantially complied with the case plan, making the improvements she was asked to make, and that neither her onetime drug relapse nor her relationship with men demonstrated instability.
In finding that potential harm would be caused by returning B.T. to appellant, the court found that appellant had not demonstrated through her eleventh-hour compliance that she was a safe and appropriate placement for B.T. The evidence we have previously summarized demonstrated the risk of potential harm that B.T. would face if returned to appellant. Appellant used drugs and had unstable housing long after the case had begun and continuously made decisions contrary to B.T.’s best interest that prevented returning B.T. to her custody. Fifteen months after ■ the case had begun — while living in the controlled environment of Kay Goss, while receiving counseling and treatment, and despite knowing 112that it was inadvisable to have a relationship with an addict — she was in a relationship with a recovering addict who was a felon. B.T. had spent the majority of her young life in foster care, a fact attributable to appellant’s failure to diligently comply with the case plan, and was bonded with her foster family. Based on appellant’s delays in diligently complying, her caseworker believed termination to be in B.T.’s best interest and believed that B.T. would be harmed by a delay in permanency.
The circuit court is not required to find that actual harm would result or to affirmatively identify a potential harm. Welch v. Ark. Dep’t of Human Servs., 2010 Ark. App. 798, 378 S.W.3d 290. The potential-harm evidence must be viewed in a forward-looking manner and considered' in broad terms. Dowdy, 2009 Ark. App. 180, 314 S.W.3d 722. We find no clear error in the circuit court’s finding that termination of appellant’s parental rights is in B.T.’s best interest, including the consideration of potential harm that would result from returning B.T. to appellant. Ark. Code Ann. § 9-27—341(b)(3)(A).
Affirmed.
Harrison and Glover, JJ., agree.
. The order also terminated the parental rights of the legal father, who consented to the termination, and the putative father, who did not attend the termination hearing. Neither man is a party to this appeal.
. See also Kight v. Ark. Dep’t of Human Servs., 94 Ark. App. 400, 231 S.W.3d 103 (2006) (Kight II) (affirming the circuit court's subsequent order terminating Right's parental rights):
Our prior opinion in this case was largely based on Trout v. Arkansas Dep’t of Human Servs., 84 Ark. App. 446, 146 S.W.3d 895 (2004), where we held that the trial court erred by disregarding appellant's eleventh-hour progress made toward reunification. That case, however, was reversed by the Arkansas Supreme Court in an opinion that expressly held that the trial court was not bound to attach significant weight to such tardy improvements, and which restated the fundamental principle that we give great deference to the superior position of the trial court, through observation and extended experience with the parties, to determine whether last-minute efforts are sincere, or instead merely a ruse to prevent imminent termination of parental rights. Trout v. Dep’t of Human Servs., 359 Ark. 283, 197 S.W.3d 486 (2004).
Kight, 94 Ark. App. at 410-11, 231 S.W.3d at 110 (Pittman, J., concurring). | [
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Battle, J.
Eerguson brought suit against W. F. Moore on an account, and sued out an attachment on the Alleged ground that Moore was about to sell his property with the intent to defraud his creditors. The constable levied the order of attachment on certain property of Moore, who caused a bond to be executed to Ferguson by H. E. Clidewell, as surety, to the effect that Moore would perform the judgment of the court. The bond was approved and the property released. Moore filed an affidavit denying the statement of the affidavit of plaintiff upon which the attachment was issued. Judgment was rendered in favor of plaintiff against defendant on the account, and the attach ment was ordered to be discharged. Eerguson then brought this action against Glidewell on the bond executed by him for the amount of the judgment recovered against Moore. Glidewell answered, setting up the order discharging the attachment as his defense. Judgment was rendered in favor of Glidewell, and Eerguson appealed.
Effect of discharge,
The only question in the case is, did the order of the court discharging the attachment release Glidewell from the obligation of his bond? This question has not been before this court since the adoption of the Code, but it is sometimes insisted that it did arise under prior statutes of this state, which were the legal equivalent of the statute under which the bond sued on was executed, and that this court decided it in the affirmative in Delano v. Kennedy, 5 Ark., 455; Childress v. Fowler, 9 Ark., 159; and Wood v. Carlton, 26 Ark, 662.
The statutes of this state prior to the Code provided that suits at law by attachment might be commenced in any of the circuit courts of this state by filing in the office of the clerk of such court a declaration, petition, or statement in writing, setting forth the plaintiff’s cause of action, an affidavit setting forth grounds of attachment, and a bond to'the defendant, with sufficient security, to the effect that plaintiff will prove his debt or demand on a trial at law, or that he will pay such damages as shall be adjudged against him, and by suing out a writ of attachment against the property of defendant; that the defendant, at the time of the service of the writ of attachment, or at any time before judgment shall be rendered against him, might file a bond, “ conditioned that he will appear to and answer the plaintiff’’s demand at such time and place as by law he should, and that he will pay and abide the judgment of the court, or that his surety will do the same for him;” and that when the defendant should file such bond, as re quired by law, the attachment should be released and the suit proceed as other suits at law. This court held that the proceeding authorized by these statutes was, in its intention, a compound proceeding, combining a proceeding in rem with a proceeding in personam, each having a distinct identity, but liable to be transformed, at any time before final judgment, into a proceeding solely in personam, and, as a whole, was founded upon the declaration, bond, affidavit and writ in harmonious combination; and that should this foundation be defective, as it would be in case the affidavit, the bond, or the writ should not be in conformity with the statute, or either should vary, the one from the other, in so much as to disturb the harmony of the whole as one suit, the entire proceedings, if appropriately assailed, would necessarily fail. It further held, that the object of these statutes was to obtain jurisdiction of the person of the defendant; that the bond which the defendant was authorized by these statutes to execute to secure the release of his property was essentially an instrument of bail, which accomplished substantially all the ends that were accomplished at common law by the taking of the bail bond below, together with the subsequent filing, entering and perfection of bail to the action above; that when a defendant in an action of attachment executed such a bond he did nothing more than a defendant did in England in an ordinary action, when he first executed a bail bond below to the sheriff and subsequently appeared, as he had covenanted to do, and entered into a recognizance of special bail to the action above, and perfected appearance there by the justification of his bail; that the bail bond below to the sheriff, and the recognizance of special bail to the action above, did not have the effect, at common law, of cutting off’ any of the defenses of the defendant; and that, therefore, the execution of the bond by the defendant for the purpose of discharging the attachment, under the statutes referred to, did not impair any of. the defendant’s rights of defense, and that after its execution, he might defend the action either by plea in abatement, interposed in apt time and in due form, or by plea in bar, in the same manner, in every respect, as if he had not executed the bond, and had suffered the property attached to remain in the hands of the sheriff. Childress v. Fowler, supra.
But the Code has made radical changes in the pleading and practice in the courts of this state. The bond and affidavit made by the plaintiff to secure an attachment, and the writ of attachment, no longer form a part of the original proceedings by which an action at law may be commenced. Under the Code, attachment is a provisional remedy and merely ancillary to the action in which it is sued out. Its object, as expressly defined by the Code, is to secure the satisfaction of such judgment as may be recovered by the plaintiff. The bond the defendant is authorized to give to dissolve an attachment no longer fills the office of a bail bond at common law. It does not bind him to appear to and answer the plaintiff'’s demand at such time and place as by law he should, as it did under the former statute. The rules-of construction heretofore followed by this court, in passing upon the effect of a bond of the defendant to dissolve an attachment upon his right to attack the attachment proceedings, are not, therefore, applicable to a dissolution bond executed under the Code, the reason having ceased to exist.
The bond sued on was executed under seetion 337, of Mansfield’s Digest, which reads as follows:
“If the defendant, at any time before judgment, causes a bond to be executed to the plaintiff by one or more sufficient sureties, to be approved by the court, to the effect that defendant shall perform the judgment of the court, the attachment shall be discharged, and restitution made of any property taken under it, or the proceeds thereof.”
In construing statutes like this the courts are not in accord. In Lehman v. Berdin, 5 Dillon, 340, the United States circuit court for the eastern district of Arkansas, in construing the section under which the bond in question was executed, held that a bond executed in accordance therewith “does not estop the defendant from traversing the affidavit for attachment, and defending against the attachment in every respect, as if such bond had’ not been executed, and the property had remained in the hands of the officer ;” and that, “if the attachment is not sustained, the plaintiff, though he recover judgment for his debt, cannot resort to the bond to compel payment of such judgment.”
Section %65, of the Code of South Carolina, is a section similar to section 337, of Mansfield’s Digest, and concludes as follows : “In all cases the defendant may move to discharge the attachment, as in the case of other provisional remedies.”
In Bates v. Killian, 17 S. C., 553, the defendant having given a bond under this section, the court held he did not thereby waive his right to have the attachment discharged as irregularly and improvidently granted, the court laying stress upon the conclusion of the section under which the bond was given.
Article %59, of the Louisiana Code of Practice, as amended by the act of 17th of March, 1852, provided, that “the defendant, if he appear either in person or by attorney, may, moreover, in every stage of the suit, have the property attached released, by delivering to the sheriff his obligation for the same, exceeding by one half the value of the property attached, with the surety of a good and solvent per son residing within the jurisdiction of the court where the action was brought, that he will satisfy such judgment, to the value of the property attached, as may be rendered against him in the suit pending.”
In Love v. Voorhies, 13 La. Ann., 549, the defendant having given bond under this article, the court held the bond had the effect to release the seizure of the property attached, but did not dissolve the attachment, and that the ■defendant was not thereby debarred from subsequently moving to quash the order of attachment.
In the Ohio Code there are the same provisions as those contained in seotions 387 and 337, of Mansfield’s Digest.
In Myers v. Smith, 29 Ohio St., 120, an attachment was issued, and the defendant thereafter executed a bond to the effect that he would perform the judgment of the court, and the court held that the effect of the bond was to supersede all proceedings under the attachment, and to bind the sureties on the bond to perform the judgment that might be recovered against them in the action.
In McAllister v. Eichengreen, 34 Md., 54, the appellant was ■one of the obligors in a bond, given for the purpose of dissolving an attachment, which had been sued out of the court of common pleas of Baltimore city against Moses Coleman and-Coleman, and levied upon their goods. The condition in it was, “that if the said Moses Coleman and-Coleman, should satisfy any judgment that shall be recovered in said case against them, then the said obligation should be void; else to be and remain full force and virtue in law.” The bond was filed and the attachment •dissolved. The case was then proceeded in and a judgment obtained against the Colemans in favor of the appellee, for $771.75, aud $13.60 costs. The court said: “This bond and judgment constitute the cause of action set forth in the declaration, upon which the appellees base their right to recover. By the very terms of the bond the recovery of the judgment fixed the amount to be paid under it. * * * A judgment had settled it beyond controversy.”
The Code of Iowa, of 1851, provided that the defendant in an attachment might, at any time before judgment, discharge the property attached, or any part thereof, by giving bond “ in a penalty at least double the value of the property sought to be released, conditioned that such property or its estimated value shall be delivered to the sheriff to satisfy any judgment which may be obtained against the defendant in that suit, within twenty days after the rendition thereof.”
In Austin v. Burgett, 10 Iowa, 302, an attachment was issued, and the property of the defendant was attached, and he gave the bond prescribed by the Code, and thereafter moved to quash the attachment. The court held that the bond had the effect to release the property from the custody of the law, and to leave it in the possession of the debtor or his legal representatives, free from the attachment, and subject to any disposition he or they might think proper. The court said : “Thi3 bond is á new security and takes the place of the attachment lien; and when executed and delivered, it follows that the attachment has expended its force and is no longer operative. Under such circumstances, to dissolve the attachment upon motion would be, in our judgment, a useless, not to say nugatory act on the part of the court.”
Section 337 of Mansfield’s Digest is a copy of a Kéntucky statute. In Inman v. Strattan, 4 Bush., 445, an attachment was issued, and the defendant, after his property was attached, executed a bond to the plaintiff to the effect that he would perform the judgment of the court; and thereafter filed an affidavit controverting the grounds of the attachment. The court decided that the execution of such a bond discharged the attachment by operation of law, and rendered the obligors in the bond unconditionally bound to perform the judgment of the court in the action; that the sufficiency of the grounds for obtaining the order of attachment- could not thereafter be entered into; and that the defendant was thereby concluded from controverting the grounds of the attachment. See, also, Hazelrigg v. Donaldson, 2 Metcalf, 445.
New York, Illinois, Wisconsin, Missouri, Michigan, Kansas and Texas, have, or have had, statutes containing substantially the same provisions as are contained in section 337 of Mansfield’s Digest. The courts in these states have held that the execution of a bond under and in accordance with these statutes, estops the defendant from controverting the attachment, and renders the obligors in the bond absolutely liable for the amount of any judgment the plaintiffs may recover in the action, without reference to the question whether the attachment was rightfully or wrongfully sued out. Haggart v. Morgan, 1 Seld., 428; Coleman v. Bean, 42 N. Y., 94; Delany v. Brett, 4 Robertson, 712; Bildersee v. Aden, 62 Barb., 175; Dieroff v. Winterfield, 24 Wis., 143; Payne v. Snell, 3 Mo., 490; Paddock v. Matthews, 3 Mich., 18; Kennedy v. Morrison, 31 Tex., 220; Endress v. Ent, 18 Kan., 236; The People v. Cameron, 2 Gilman, 468.
But it is sometimes contended that this court has decided this question differently in Ward v. Carlton, 26 Ark., 662. The act construed in that case was the act of March 7, 1867, which amended the attachment laws of the state so as to allow the defendant to contorvert the grounds of attachment set forth in the plaintiff’s affidavit; and reenact the statute allowing the defendant to dissolve the attachment by giving bond, conditioned, that he will appear and answer the plaintiff’s demand at such time and place as by law he should, and that he will pay and abide the judgment of the court; and limited the liability of the sureties on such bond to the value of the property attached. This court held that the intention of this act was to allow the defendant to controvert the truth of the affidavit on which the attachment was issued, and to allow him to do so, notwithstanding he has given bond to dissolve the attachment. The reason given for this construction is, if he was not allowed to do so, an unscrupulous creditor, by perjury, could take advantage of the necessities of his debtor, cause his property to be attached, and force him to give bond and preclude himself from putting in issue the truth of plaintiff’s affidavit, in order to get possession of his property and thereby save himself from ruin ; and that the object of the act was to remedy such hardships. Such is not the condition of a defendant under the present attachment laws of the state. He can get- the possession of his property without giving a bond to dissolve the attachment. The present attachment laws of this state are entirely different from the act of March 7, 1867, and the statutes to which it is an amendment, and Ward v. Carleton, can furnish no aid in construing them.
Prior to the adoption of the code the defendant in an attachment suit could get possession of his property after it was attached by giving the bond to dissolve the attachment. This was the only bond he could give. Now he can do so by giving either one of two bonds. Section 3%7 of Mansfield’s Digest provides that the sheriff’ may deliver to him any property attached and taken from his possession, upon the execution of a bond by him and one or more sufficient sureties, to the effect that the obligors are bound, in double the value of the property, that the defendant shall perform the judgment of the court in the action, or that the property, or its value, shall be forth coming and subject to the order of the court for the satisfaction of such judgment. Section 337 says: “If the defendant, at any time before judgment, causes a bond to-be executed to the plaintiff by one or more sufficient sureties, to the effect that defendant shall perform the judgment of the court, the attachment shall be discharged and restitution made of any property taken under it, or the proceeds thereof.” If he wishes to contest the attachment, and, in the meantime, remain in possession of his property, he can do so by giving the forthcoming bond. Section 380' provides that the defendant may controvert the attachment by filing an affidavit denying all or any of the material statements of the affidavit upon which'the attachment is issued. Can he do so after he has given bond in accordance with section 337? Sections 377-380 provide that an attachment shall be sustained or discharged at the time-judgment is rendered in the action, unless for sufficient cause the court extends the time of deciding it; that if judgment is rendered in favor of the defendant the attachment shall be discharged; that if judgment is rendered in favor of the plaintiff, and no affidavit or answer, verified by oath, by the defendant be filed, denying the statements of the affidavit upon which the attachment was issued, or motion be made to discharge it, the court shall sustain the attachment; and that upon the attachment being sustained, the property attached, or its proceeds, or the securities taken upon the attachment, shall, by appropriate orders, be applied in satisfaction of the judgment. Section 337, as we have seen, provides that the defendant may discharge the attachment by giving bond that he will perform the judgment of the court. How can the attachment be sustained or discharged after the defendant has discharged it by giving bond ? If the court sustains the attachment, the statute makes it its duty to apply, by appropriate or ders, to the satisfaction of the judgment recovered by the plaintiff, the property attached, or its proceeds, or the securities taken upon the attachment. This cannot be done if the defendant has given bond to discharge the attachment, because the property attached, its proceeds, .and the securities taken upon the attachment have passed beyond the control of the court, and are no longer in the custody of the law. By securities referred to in this connection cannot be meant the bond to discharge the attachment, because no action could be taken or judgment rendered upon it in the action in which it was given prior to the act of November 10, 1875, amending the attachment laws of the state, which was passed long after the statute saying what the action of the court should be upon sustaining the attachment.
But this is not all. Section 354, a part of the act of November 10, 1875, says: “If the plaintiff shall recover against the defendant, and the attachment shall have been discharged upon the execution of a bond, as provided by section 337, then the court shall render judgment against the defendant and his sureties in said bond for the amount recovered and the costs of the suit.”
Section 355, also a part of the same act, reads as follows:
“If the defendant shall have given bond for the retention of the property attached, as provided by section 327, and the attachment shall he sustained, the court or jury, in addition to finding the amount of debt or damage due to the plaintiff, shall, upon demand of the plaintiff', also assess the value of the property attached, and the court shall, in addition to judgment against the defendant for the amount found due to the plaintiff and costs, render further judgment, that in case said property shall not be delivered up to the proper officer to be sold, and said officer shall not be able to make said judgment out of the property of said defendant, execution shall issue against the property of said sureties for so much of said judgment as shall not exceed the value of said property, which execution shall be ' enforced as in other cases."
Construing all the statutes we have, cited together, our conclusion is, Moore was precluded by the bond sued on from controverting the grounds of the attachment it was given to discharge, and that Glidewell, the obligor therein, was absolutely liable for the amount recovered by the plaintiff in the action in which it was given, without reference to the question whether the attachment was rightfully or wrongfully sued out.
The judgment of the court below is, therefore, reversed, aud this cause is remanded with an instruction to the court to grant appellant a new trial. | [
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Battle, J.
On the 18th day of April, 1882, A. Sophia. Crease and Laura C. Lewis filed their complaint in equity, in the Saline circuit court, against W. A. Lawrence, alleging the following facts : About the year 1844, John H. Crease, the father of the plaintiff, occupied certain lands lying in Saline county. On the 28th day of June, 1855, George C. "Watkins conveyed these lands to Jane^ Crease, the wife of John H. Crease. On the 26th day of July, 1871, Crease and wife conveyed the lands to plaintiffs. John H. Crease and wife were in actual, adverse and peaceable possession of the land from 1844 until 1872, when they both died, and from the time of their death plaintiffs remained in like possession until 1880, making a continuous possession of more than thirty years. About the 27th day of February, 1880, defendant, knowing these facts entered upon one tract of the land, and made a small improvement on it, claiming by virtue of a deed executed by John T. Jones, as an attorney in fact for L. A. Epperson, C. W. Epperson, C. L. Scrutchfield and S. F. Scrutchfield, dated the 27th day of February, 1880. Since his entry defendant has committed many trespasses on the tract claimed by him, and still continues to do so, and by his claim casts a cloud over the title of plaintiffs. And they prayed for an injunction against the trespasses complained of, for possession, for an account of rents, and for general relief.
The defendant answered, and denied that John H. Crease ever occupied the land in controversy; that plaintiff had actual and continued occupancy and possession thereof for seven years next before the 28th day of February, 1880; and that Watkins had any title to the land, on the 28th day .of June, 1855, when he conveyed to Mrs. Crease. He averred that Watkins pretended to derive title from one S. M. Rutherford, who conveyed to him by deed, dated September 30, 1854. That on the 12th day of June, 1846, in a suit then pending in the chancery court of Pulaski ■county, wherein Albert Epperson was plaintiff and Much-berry, H. Beatty and Samuel M. Rutherford and others were defendants, it was decreed, among other things, that all the right, title and interest of said defendants in the land in question should be divested out of them, and vested in Beatty, and that the land should be sold by Milton Eowler, as commissioner. That Eowler, as such commissioner, sold the land on the 19th day of October, 1846, pursuant to the decree, and executed a deed to Epperson, who bought at his sale. That on the 27th day of February, 1880, L. A. Epperson and others, only heirs of Albert Epperson, who had died in the meantime, by John T. Jones, their attorney in fact, conveyed the land to defendant. That since the conveyance of the land by Fowler, or soon thereafter, Epperson, and those claiming under him have had possession and control of the land openly and adversely. He denied that he took forcible possession of the land, but averred that possession was delivered to him by his grantor peaceably, and that he had made valuable improvements on it.
He demurred to the complaint because there was no equity in it, and the facts therein stated were not sufficient to constitute a cause of action.
He made his answer a cross-complaint against the plaintiffs, and prayed that the complaint be dismissed, and that the deeds from Rutherford to Watkins, from Watkins to Mrs. Crease, and from Crease and wife to plaintiffs, be set aside, and that the title of the defendant to the land be forever quieted, and for other relief.
Plaintiffs answered the cross-complaint, and repeated the allegations of their complaint as part of their answer. They denied that Watkins or any one occupying the land and claiming title to it, were parties to the suit brought by Epperson against Beatty and others; that Fowler, as commissioner, ever made any valid deed to the land as alleged. They said they knew nothing of the death of Epperson, nor whether he died intestate, nor who his heirs were; and they denied the right of defendant as claimed under Epperson. They denied the authority of Jones to act as attorney in fact; that Epperson or any one claiming under him had possession and control of the land, and that defendant entered peaceably into the possession of the land, and made valuable improvements thereon.
The court sustained the demurrer to the complaint, because there was no equity in it, and dismissed it without prejudice. And plaintiffs appealed.
1. Jurisdiction i n equity supplied by cross -complaint.
According to the allegations of the complaint plaintiffs were not entitled to any relief in equity. But defendant’s cross-complaint showed he was, and this supplied any defect in the equitable jurisdiction of the court, placed the court in the possession of the whole cause, and imposed the duty on the court of granting relief to the party entitled to it — the original and cross-complaints being but one cause. The court below, therefore, erred in sustaining the demurrer of defendant, and dismissing the complaint. Radcliffe v. Scruggs, 46 Ark., 102.
As the cause was ready for hearing, we proceed to consider the-merits and to render such decree as should have been entered'below.
2. Adverse possession.
The evidence established that plaintiffs and their grantors held, occupied and cultivated a farm on the land in controversy, and lands contiguous thereto, under deeds conveying the same to them, respectively, for about twenty years before defendant’s purchase. Only a small part of the farm, however, was on the land in controversy; the remainder thereof, except two or three acres, being woodland. During the entire twenty years plaintiffs and their grantors claimed the land as their own, and used so much thereof as was not enclosed, as a wood lot, and cut on it the fire wood and timber used on the farm, as they did on their other woodland. Their claim was open, adverse and notorious. Soon after the close of the late war between the states Epperson’s agent had notice of their claim, both insisting on paying the taxes on the land. For more than ten years before he purchased defendant knew of their claim. Taking all these circumstances together, it is evident that the possession of plaintiffs and their grantors was open, notorious and adverse ; and continued for more than seven successive years before the defendant purchased or entered into possession. This was sufficient, as held by this court in Logan v. Jelks, 34. Ark., 547, to vest in plaintiffs the title to the land, if it was not already vested, and enable them to maintain an action of ejectment for it.
The decree of the court below is therefore reversed, and a decree will be entered here in favor of plaintiffs quieting their title to the land in controversy, and for the possession thereof, and for the costs of this court and the court below. | [
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OPINION.
Cockrill, C. J.
When an affidavit for an appeal from a judgment of a justice of the peace is filed, the judgment superseded and the appeal not perfected until the time prescribed by the statute has expired {Mansf. Dig , sec. £139), and a satisfactory excuse is not given for the delay, the judgment of the justice may be affirmed by the circuit court and judgment rendered against the sureties in the appeal bond. Smith v. Allen, 31 Ark, 268; McGehee v.Carroll, ib., 558; Hughes v. Wheat,32 ib., 292: Whittaker v.'Tracy, 41 ib., 259.
II. It is the appellant’s duty in such a case to see that his appeal is perfected in time, and if he relies on the justice of the peace, cr upon his attorney, to see to it for him, and it is neglected, the default comes through his own want of diligence. Cases supra.
III. The fact that an order has been made in the case previous to the filing of the motion to affirm, does not deprive the court of the power to exercise its discretion to grant the prayer of the motion.
The court should regard the general appearance of an appellee to the cause as a waiver of the delay; but the appearance in this cause was solely for the purpose of dismissing the appeal, and could not be so construed. It is true his first motion was to dismiss for want of an affidavit for appeal, and when this was denied it was renewed to dismiss or affirm for delay in prosecution, but neither effort recognized the appellant’s standing in court.
"We cannot say there was an abuse of official discretion, and the judgment is affirmed. | [
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LARRY D. VAUGHT, Judge
| Appellants Christa Gregory Lowder and Robert Edward Lowder appeal from an order awarding custody of their biological children to Christa’s former husband, appellee David Gregory. Appellants raise numerous assignments of error, none of which warrant reversal. We therefore affirm the custody order.
I. Background,
Christa and David “Creed” Gregory were married in 1997, and two children were born during their marriage: a son, Cl in 2001, and a daughter, C2 in 2002. While married to Creed, Christa engaged in a long-term affair with appellant Robert Edward “Eddie” Lowder. In July 2004, she and Eddie underwent DNA testing, which revealed him to be the biological father of Cl and C2.
In October 2004, Christa sued Creed for divorce in the Crawford County Circuit Court. Her complaint recited that she and Creed were residents of Crawford County and that 12there were “two children born of the marriage.” She prayed for custody of the children, subject to Creed’s visitation, and asked for child support. No mention was made of Eddie’s being the children’s biological father.
The circuit court entered a divorce decree on January 12, 2005, and awarded Christa custody of the “two children born of this marriage.” Creed received standard visitation and was ordered to pay child support of $150 per month, plus all of the children’s non-covered medical and dental expenses. Soon after the divorce, Christa married Eddie, and they moved with the children to Oklahoma.
In July 2005, Creed asked the court to place the children in his custody due to Christa and Eddie’s interfering with his visitation and making derogatory remarks about him in the children’s presence. In response, Eddie filed a motion to intervene, citing his status as the children’s biological father. Both he and Christa asked the court to alter that portion of the divorce decree recognizing Creed as the children’s father and to declare Eddie’s paternity. Creed responded that he was the children’s legal father and that Christa had misled both him and the court regarding the children’s paternity.
On June 13, 2006, the court entered an order that allowed Eddie to intervene and established his paternity of Cl and C2. The order also vacated the divorce decree’s finding that the children were born of Christa and Creed’s marriage. Despite these rulings, the court found Creed to be a person standing in loco parentis to the children and continued his |svisitation and his child-support obligation.
Following the June 2006 order, the children lived with Christa and Eddie in Oklahoma and visited Creed in Arkansas. The parties continued to file motions for modification of visitation and custody, but there was little change in those arrangements until August 2011, when Creed filed a motion for custody of Cl and C2. The motion cited a material change of circumstances in that the children were living in “deplorable” conditions at Christa and Eddie’s home and were subject to “physical abuse” while living there. The court heard the motion on July 2, 2012.
At the hearing, Creed testified that Eddie was verbally abusive to the children and had hit Cl on the back hard enough to leave a mark. He also said that the children had come to his home covered with flea or chigger bites and that Eddie had cursed at him and threatened him in front of the children. Creed’s mother testified that Creed had taken good care of the children and that they were happy in his care. She said that she lived near Creed and kept the children overnight if Creed had to work, and that she would continue to do so if Creed obtained custody.
The children, ages eleven and nine, testified in a closed session, and their testimony was later sealed. They stated unequivocally that they would prefer to live with Creed rather than Christa and Eddie. Cl offered photographic evidence depicting Christa and Eddie’s house as extremely-cluttered, so much so that there was little space for walking around. He also produced a photograph of a large red mark on his back where Eddie had hit him. He said that he was afraid of Eddie and that Eddie hit him “a bunch.” He also said that Eddie called him |/‘nasty” names and threatened him if he failed to testify that he wanted to live with Christa and Eddie. Cl further stated that there was not enough food or milk at Christa and Eddie’s house and that Christa, who stayed at home during the day, had no vehicle or phone while Eddie was at work.
C2 likewise testified that Christa and Eddie’s house was very messy and lacking in food and milk. She said that Eddie hit them and used bad language and that he told her how she should testify at the hearing. She stated that she got sick and nervous upon returning to Christa and Eddie’s house after visiting Creed and that she liked being with Creed.
Christa testified that her house was clean, that she had sufficient groceries, and that she had never heard Eddie curse or yell at the children but only spank them once or twice. She explained the clutter in her house by saying that Creed ordered the children to be messy and disrespectful and threatened to kill their pets if they did not comply. She also said that she could borrow a neighbor’s car if needed, which was confirmed by neighbor Joann Thode. Ms. Thode testified that she had never seen Eddie be extremely harsh with the children, nor had she ever seen the Low-der home in a “filthy” condition.
Eddie did not appear at the hearing because he had not been served with Creed’s motion to change custody. He was aware of the hearing, however.
At the close of the evidence, the children’s attorney ad litem recommended that the children be placed with Creed. The court continued the hearing until Eddie could appear and testify but entered a temporary order granting custody of the children to Creed, with Christa to receive visitation and to supervise all contact between the kids and Eddie.
[¿Not long after the July 2 hearing, the ad litem moved for an immediate suspension of Christa and Eddie’s visitation based on Eddie’s threatening the children with corporal punishment and banishment to a foster home if théy did not divulge their sealed testimony. The court temporarily suspended the children’s visitation with Christa but soon restored it on the condition that Eddie not be present or communicate with the children.
On September 13, 2012, Eddie appeared before the court to offer his testimony. He denied that the children were uncomfortable with him and denied threatening the children or Creed. Christa also testified and denied the allegations in the ad litem’s motion. She said that the children were fabricating stories because Creed was “working on” them. The children were not present, so the court again postponed a final custody ruling and instructed the ad litem to explore avenues for Eddie to visit the children at a neutral location.
A few weeks later, the children returned to court to offer more testimony. Cl again testified that he was afraid of Eddie because “he always hits us and he yells at us.” He also said that, since his last court. appearance, both Christa and Eddie asked him about his sealed testimony and that Eddie pushed him when he refused to tell what he had said. He further testified that Christa did not intervene on that occasion and that she made him and his sister write letters saying that they loved and missed Eddie. C2 testified in a simi lar fashion and also said that she had only a few items of ill-fitting clothing at her mother’s house. Both children denied that Creed had asked them to mess up Christa and Eddie’s house. Upon hearing this testimony, the court maintained temporary custody with Creed and visitation with Christa, and eventually allowed Eddie to visit the children at STEPS, a local community organization. | nA final custody hearing was scheduled for May 2013.
Before the final hearing, the parties presented legal arguments concerning the court’s jurisdiction and the viability of the June 2006 paternity order that had named Eddie as the children’s father and vacated that part of the divorce decree establishing Creed’s paternity. Creed argued that the June 2006 order was void because the divorce decree’s finding of his parentage was res judicata and because the court’s attempt to modify the divorce decree came too late under Arkansas Rule of Civil Procedure 60. Christa argued that the court lacked jurisdiction to change custody to Creed because, under the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA), the children’s home state was Oklahoma. The court reserved a ruling on these issues.
At the final hearing on May 18, 2013, much of the testimony mirrored what was said at earlier hearings. However, some new and relevant evidence emerged. Christa and Eddie’s Oklahoma neighbors, friends, and relatives testified that Christa and Eddie were good parents, that Eddie did not curse or mistreat the children, and that the family seemed normal. Two of the children’s former Oklahoma teachers testified that they saw no sign of problems with the children. Further, a STEPS representative testified that the children were relaxed during their visits with Eddie but that Creed had made inappropriate comments about the visitation in the children’s presence.
However, Amanda Epsy testified that she performed drug tests on the parties and that Eddie tested positive for marijuana. Deidre Underhill, who was C2’s teacher in Alma (where Creed lived), said that C2 was anxious and even became sick in the classroom in the days 17before she visited Christa and Eddie. Underhill also said that Creed was very active in the children’s schooling but that she had never seen or spoken to Christa.
Rachel Steinbeck from the Western Arkansas Guidance Center testified that she observed Creed to be a concerned father who came to counseling sessions promptly and was forthcoming with information. She said that the family counseling sessions involving Creed and the children went “great” but that the sessions with Christa were characterized by the children’s reluctance to speak for fear of saying something wrong. Steinbeck also said that Christa asked the children to leave the sessions within five or ten minutes. Steinbeck testified that she did not complete any family counseling with Eddie because the children made it obvious that they were afraid of him. According to her, it was in the children’s best interest to be in Creed’s custody.
Creed testified that he received a series of vulgar and somewhat menacing text messages from Eddie after gaining temporary custody of the children in July 2012. One of the texts referred to Creed’s female attorney as a “whore lawyer.” Eddie testified and admitted to sending the texts. He also apologized to Creed’s counsel and said that he meant to call her a “prostitute attorney.” Eddie further admitted to making a Facebook post after the July 2 hearing that criticized the attorney ad li-tem and the court.
The children testified again, and, on this occasion, Christa and Eddie objected to leaving the courtroom while the children were on the stand. The children testified in open |scourt and were cross-examined by Eddie, who was representing himself. They essentially stood by their prior testimony.
On August 6, 2013, the court entered an order granting custody of the children to Creed, with visitation to Christa and supervised visitation to Eddie. In doing so, the court referred to the July 2012 temporary order that changed custody to Creed based on the best interest of the children and certain material changes of circumstances, including the wishes of the children, excessive disciplinary measures, flea bites, transportation and telephone problems, and environmental issues at Christa and Eddie’s home. The court also ruled that it had continuing jurisdiction under the UCCJEA and that the June 2006 paternity order naming Eddie as the children’s father should be set aside. Finally, the court ordered Christa and Creed to each pay one-half of the attorney ad li-tem’s fee. Christa and Eddie appeal and argue that the court erred in these and other rulings.
II. Voiding the June 2006 Paternity Order
The August 6, 2013 custody decree, from which this appeal is taken, set aside the court’s June 2006 order, which had vacated the divorce decree’s recognition of Creed’s paternity and declared Eddie to be the children’s father. Christa and Eddie argue that the circuit court erred in setting aside the 2006 order. We address ⅛⅛' issue first because the question of which man is the children’s legal father will have an impact on many of the issues that follow.
The court set forth two distinct reasons for voiding the June 2006 order. First, the court ruled that the 2005 divorce decree was a final and permanent determination of Creed’s ¡¡paternity under the doctrine of res judicata. Secondly, the court ruled that “at the very least, the Court lost jurisdiction of the paternity issue ninety (90) days after the entry of the Divorce Decree in January 2005” and that “any modification that might have been entered after that ninety (90) day period would be void and the Court would have no jurisdiction to enter such an Order.” The court was clearly referring to Creed’s argument under Arkansas Rule of Civil Procedure 60, which provides that, with certain exceptions, a court may modify or vacate a decree within ninety days of its having been filed. After that ninety-day period, the court loses jurisdiction to modify or vacate the decree. See Stuart v. Stuart, 2012 Ark. App. 458, 422 S.W.3d 147.
Christa and Eddie contend that the court erred in setting aside the decree, but their argument on appeal is directed to the court’s finding that the divorce decree was res judicata on the issue of paternity. They do not attack the court’s separate ruling that it lost jurisdiction to modify the divorce decree more than ninety days after the decree was entered. When a trial court makes independent, alternative rulings that are each dispositive of an appellant’s claim and the appellant attacks only one of those rulings, the case will be affirmed without addressing either ruling. Midyett v. Midyett, 2013 Ark. App. 597, 2013 WL 5745119. That is the situation before us. We therefore affirm this point without addressing the merits. According ly, the divorce decree’s declaration of Creed’s paternity stands.
III. Jurisdiction Under the UCCJEA
When the circuit court entered the temporary order granting custody of the children to Creed in July 2012, the children had been living in Oklahoma with Christa and Eddie for |10seven years and exercising their visitation with Creed in Arkansas. Christa and Eddie argue that the circuit court lacked subject-matter jurisdiction under the UCCJEA to change custody to Creed in July 2012 or thereafter because the children’s home state was Oklahoma.
The UCCJEA, codified at Arkansas Code Annotated sections 9-19-101 to - 401 (Repl. 2009), provides the exclusive method for determining the proper state for jurisdictional purposes in child-custody proceedings that involve other jurisdictions. Harris v. Harris, 2010 Ark. App. 160, 379 S.W.3d 8. We review rulings under the UCCJEA de novo, although we will not reverse a circuit court’s findings of fact unless they are clearly erroneous. Piccioni v. Piccioni 2011 Ark. App. 177, 378 S.W.3d 838. A trial court has the discretion to decide whether to decline to exercise jurisdiction, and we will not reverse the court’s decision absent an abuse of discretion. Id., 378 S.W.3d 838.
We begin our analysis by recognizing that the Crawford County Circuit Court unquestionably had jurisdiction to make the initial child-custody determination, which occurred during the 2004-05 divorce proceeding. A court may make an initial child-custody determination if, among other things, it sits in the child’s home state on the date the custody proceeding is commenced. Ark.Code Ann. § 9-19-201(a)(l) (Repl. 2009). There is no dispute that Christa, Creed, and the children lived in the State of Arkansas in the months before the divorce/custody complaint was filed. The Arkansas court therefore had the Inauthority to make the initial child-custody determination under section 9-19-201. See West v. West, 364 Ark. 73, 216 S.W.3d 557 (2005).
Having decided that the Arkansas court had jurisdiction to make the initial child-custody determination, we must next consider whether the court had continuing jurisdiction to enter subsequent custody orders. With exceptions not applicable here, a court that has made an initial child-custody determination consistent with section 9-19-201 has continuing, exclusive jurisdiction over the determination until:
(1) a court of this state determines that neither the child, nor the child and one (1) parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child’s care, protection, training, and personal relationships; or
(2) a court of this state or a court of another state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in this state.
Ark.Code Ann. § 9-19-202(a) (Repl. 2009).
Under subsection (a)(1), quoted above, an Arkansas court may continue its jurisdiction if the children have a significant connection with this state. West, 364 Ark. 73, 216 S.W.3d 557; Hatfield v. Miller, 2009 Ark. App. 832, 373 S.W.3d 366. Here, the children have maintained significant Arkansas connections during the case. Before entry of the temporary-custody order, they came to Arkansas for court-ordered visitation with Creed. They had their own rooms at Creed’s house, had pets there, had friends over, and had a relationship with their Arkansas grandmother and uncle, with whom they occasionally spent the night. Additionally, the children’s father, Creed, maintained significant connections with Arkansas, having lived and worked here over the course of this case. These connections justify the 1 iaArkansas court’s continuing jurisdiction, and the court did not abuse its discretion in exercising that jurisdiction. See Thomas v. Avant, 370 Ark. 377, 260 S.W.3d 266 (2007); West, 364 Ark. 73, 216 S.W.3d 557; Hatfield, 2009 Ark.App. 832, 373 S.W.3d 366. Moreover, even though the children lived in Oklahoma for a lengthy period, we have recognized that “continuing jurisdiction” is favored over “home-state” jurisdiction. Thomas, 370 Ark. at 382-83, 260 S.W.3d at 270-71 (citing the Parental Kidnapping Prevention Act, 28 U.S.C. § 1738A (2003)).
Christa and Eddie argue alternatively that the trial court should have declined to exercise jurisdiction because Arkansas was an inconvenient forum, given that key witnesses and records were in Oklahoma. A court may refuse jurisdiction under the UCCJEA if it considers itself an inconvenient forum and finds that another state is the more appropriate forum. Ark.Code Ann. § 9-19-207 (Repl. 2009). However, if a court chooses to retain jurisdiction, we will not reverse that decision absent an abuse of discretion. Harris, 2010 Ark. App. 160, 379 S.W.3d 8.
The evidence shows that Christa and Eddie were able to produce witnesses and records in their favor at the Arkansas hearing. Further, by the time of the final hearing in May 2013, the children had been in Creed’s custody in Arkansas for almost a year and had attended school here, making many Arkansas records and witnesses relevant as well. Additionally, the Arkansas court was familiar with the long and complicated history of this case. We therefore [ 13see no abuse of discretion in the court’s continuing its jurisdiction.
IV. Hearings and Evidence
As previously mentioned, the parties filed numerous motions during this case. Christa and Eddie argue that the circuit court erred by not holding a hearing on all of their motions. We disagree.
Arkansas Rule of Civil Procedure 78(c) (2014) provides that a circuit court “may” hold a hearing on a motion. The word “may” is generally permissive rather than mandatory, see Wye Comm. Club, Inc. v. Harmon, 26 Ark. App. 247, 764 S.W.2d 55 (1989), so a motion hearing is discretionary with the court. David Newbern, John J. Watkins, & D.P. Marshall Jr., Ark. Civ. Proc. & Proc. §§ 13:4 & 20:5 (5th ed.2010). Furthermore, Christa and Eddie have not explained how they were prejudiced by the lack of a hearing on any particular motion. We will not reverse in the absence of a showing of prejudice. See Peters v. Pierce, 314 Ark. 8, 858 S.W.2d 680 (1993).
Christa also argues that she was not allowed to present additional evidence at the final hearing on May 6, 2013. However, she does not explain what particular proof she was prohibited from admitting into evidence or how she was prejudiced by its exclusion. It is the appellant’s burden to demonstrate and explain reversible error. Tri-Eagle Enters. v. Regions Bank, 2010 Ark. App. 64, 373 S.W.3d 399. That has not been done here.
114Eddie also makes a brief argument that the circuit court should not have held the July 2012 hearing without him being present. We see no reversible error because the court continued the hearing to allow Eddie to testify. We therefore affirm on this point.
V. Custody Award to Creed
Christa and Eddie present two arguments on this issue. First, they assert that the circuit court erred by depriving them of custody of their children without first finding them to be unfit parents.
As a general rule, there must be a finding of the natural parents’ unfitness before custody can be granted to a third party. Meadough v. Bulliner, 2009 Ark. App. 263, 2009 WL 936907. Here, the circuit court did not find Christa and Eddie unfit. However, no such finding was necessary. Once the June 2006 order was set aside and Creed was again the children’s legal father, this case became a custody battle between Creed and Christa as parents. Between parents, a showing of unfitness is not necessary to warrant a change of custody. Vo v. Vo, 78 Ark. App. 134, 79 S.W.3d 388 (2002).
Next, Christa and Eddie argue that granting custody of the children to Creed was not in the children’s best interest and that Creed failed to prove a material change in circumstances that would justify a change of custody.
In reviewing child-custody cases, we consider the evidence de novo but will not reverse a trial court’s findings unless they are clearly erroneous or clearly against the preponderance of the evi-. dence. McCoy v. Kincade, 2014 Ark. App. 664, 448 S.W.3d 740. We give due deference to the superior position of the trial court to view and judge the credibility 11Bof the witnesses. Id., 448 S.W.3d 740. This deference is even greater in cases involving child custody, as a heavier burden is placed on the trial court to use the fullest extent of its powers of perception in evaluating the witnesses, their testimony, and the best interest of the children. Id., 448 S.W.3d 740.
In order to change child custody, the trial court must first determine that a material change of circumstances has occurred since the last order of custody; if that threshold requirement is met, the court must then determine who should have custody with the sole consideration being the best interest of the child. Evans v. McKinney, 2014 Ark. App. 440, 440 S.W.3d 357.
We have no hesitancy in holding that the circuit court did not clearly err in changing custody to Creed. First, the evidence showed that a material change of circumstances occurred. After entry of the last custody order in the case (which, according to Christa and Eddie, occurred in 2007), Creed saw photographic evidence that Eddie had hit Cl on the back hard enough to leave a mark. Creed also had to treat the children several times for flea bites when they arrived for visitation. Moreover, the children, who were older and necessarily more articulate and aware of their circum stances than they had been in 2007, expressed a clearly defined preference to live with Creed. See generally Hollinger v. Hollinger, 65 Ark. App. 110, 986 S.W.2d 105 (1999). The cumulative effect of these matters was sufficient to constitute a material change of circumstances.
The children’s testimony also supports the court’s finding that changing custody to Creed was in their best interest. It was proper for the court to consider the children’s | ^preference to live with Creed. Ark.Code Ann. § 9 — 13—101(a)(l)(A)(ii) (Repl. 2009 & Supp. 2013). Additionally, their testimony of physical and verbal abuse, coercion, and lack of food in their mother’s home was deemed credible by the court:
The Court, as evidenced by numerous academic awards, believes the children in this matter are credible, very smart, intelligent young people. There is no evidence before the Court to indicate that they could or would be brainwashed, coerced, or threatened into testifying a certain way or relating facts that were untrue.
The court also noted that it had the benefit of the ad litem’s recommendation and investigation in determining the children’s best interest. On these facts, and the evidence in its entirety as set forth in the hearings, we affirm the court’s custody ruling.
VI. Ad Litem’s Fees
Christa argues that the court erred in requiring her to pay part of the attorney ad litem’s fee. A circuit judge may appoint an attorney ad litem if it will facilitate a custody case and protect the rights of the child. Ark.Code Ann. § 9-13 — 101(e)(2) (Supp.2013). The ad litem’s fees and reimbursable expenses shall be paid by the Administrative Office of the Courts (AOC) from funds appropriated for that' purpose. Ark.Code Ann. § 9-13-101(e)(4) (Supp.2013). The court is required to send a copy of its fee order to the AOC. Ark.Code Ann. § 9-13-101(e)(5)(A) (Supp.2013). The court may also require the parties to pay all or a portion of the ad litem expenses depending on their ability to pay. Ark.Code Ann. § 9-13-101(e)(5)(B) (Supp.2013).
In this case, the court ordered the AOC to pay some of the ad litem’s fee. The AOC apparently paid $1250, and Creed paid part of the fees as well. It appears that Christa has paid nothing.
117Christa argues first that the court should have transmitted the fee order to the AOC rather than relying on the attorney ad litem to “handle that part of the process.” While it is not clear exactly how the AOC received the order, it obviously did receive it and made payment on it. Christa does not explain how she was prejudiced by the fee order’s mode of transmittal. She also argues that she cannot afford the fees. However, she makes no specific, convincing argument of her inability to pay. Again, it is the appellant’s burden to demonstrate and explain reversible error, and that was not done in this instance. Tri-Eagle Enters., supra.
VII. Conclusion
For the reasons set forth in this opinion, we affirm the order entered by the Crawford County Circuit Court.
Affirmed.
Gladwin, C.J., and Walmsley, J., agree.
. The same order was re-entered on July 3, 2006, and similar findings were set forth in subsequent orders.
. Eventually, all family sessions were suspended so that the children could feel free to express themselves.
. Appellants initially argue that the court erred in ruling that Christa raised her issues under the UCCJEA too late in the proceedings. Appellants are correct in this regard. The UCCJEA involves subject-matter jurisdiction, which may be raised at any time. See Adams v. Adams, 2014 Ark. App. 67, 432 S.W.3d 49. However, because the court went on to address the merits of the jurisdictional issue, we see no reversible error.
. Appellants cite Czupil v. Jernigan, 103 Ark. App. 132, 286 S.W.3d 753 (2008), but that case is inapposite because, among other reasons, the child there had never been to Arkansas at the time of the initial custody ruling.
. Because we have affirmed the circuit court’s decision to set aside the June 2006 order, thereby reinstating Creed's paternity, we need not address Christa and Eddie's arguments that Creed does not meet the definition of a "person acting as a parent” under the UCCJEA or that the June 2006 order affected the court’s jurisdiction under the UC-CJEA. | [
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Daniel, J,
This is a case in which the cause of action survives. Digest, 98; 1 Blatch. 394. It appears that administration has been granted to John T. Trigg on the estate of Frances B. Trigg by the proper authority,-and he is entitled to be substituted as plaintiff, and to prosecute the suit to final judgment. This is expressly authorized by the Judiciary Act of 1789. 1 Stat. 90.
It is objected by the counsel of the defendant, that after the commencement of the suit, the deceased plaintiff ceased to be a citizen of Missouri, and became a citizen of Arkansas, and of which last-named State her administrator is a citizen, and here took out letters of administration, and that as the suit is now between citizens of the same State, it should be dismissed for want of jurisdiction.
This objection is not maintainable, for it is undeniable that where jurisdiction has once vested, a change of residence of either of the parties will not divest it. That has frequently been decided by the Supreme Court of the United States. 2 Wheat. 297 ; 2 Peters, 564; 9 Wheat. 537 ; 8 Peters, 1. The death of either party, pending the suit, does not, where the cause of action survives, amount to a determination of it. The substitution of the representative of the deceased is not the commencement of a new suit, but a mere continuation of the original suit, and whether the representative belongs to the same State where the suit is pending or not, is quite immaterial. If the jurisdiction attached, as between the original parties, it still subsists. Clarke v. Mathewson, 12 Peters, 164. It is proper to substitute the administrator, and to direct a scire facias to bring in the representatives of the deceased defendant, returnable to the next term.
Ordered accordingly.
The 31st section of the Judiciary Act of 1789 is as follows (1 stat. 90; Gordon’s Digest, 687), namely : “ Where any suit shall be depending in any court of the United States, and either of the parties shall die before final judgment, the executor or administrator of such deceased party who was plaintiff, petitioner, or defendant, in case the cause of action doth by law survive, shall have full power to prosecute or defend any such suit or action until final judgment; and the defendant or defendants are hereby obliged to answer thereto accordingly; and the court before whom such cause may be depending is hereby empowered and directed to hear and detei-mine the same, and to render judgment for or against the executor or administrator, as the case may require. And if such executor or administrator, having been duly served with a scire facias from the office of the clerk of the court where such suit is depending, twenty days beforehand, shall neglect or refuse to become a party to the suit,' the court may render judgment against the estate of the deceased party in the same manner as if the executor or administrator had voluntarily made himself a party to the suit. And the executor or administrator who shall become a party as aforesaid, shall, upon motion to the court where the suit is depending, be entitled to a continuance of the same until the next term of said court. And if there be two or more plaintiffs or defendants, and one or more of them shall die, if the cause of action shall survive to the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants, the writ or action shall not be thereby abated; but such death being suggested upon record, the action shall proceed at the suit of the surviving plaintiff or plaintiffs against the surviving defendant or defendants.”
As to construction of the section. — This statute embraces all cases of death before final judgment, and is more extensive than the 17 Car. 2, and 8 and 9 W. 3. The death may happen before or after plea pleaded, before or after issue joined, before or after verdict, or before or after interlocutory judgment; and in all these cases the proceedings are to be exactly as if the executor or administrator were a voluntary party to the suit. Hatch v. Eustis, 1 Gall. C. C. R. 160; Green v. Watkins, 6 Wheat. 260. In real actions, the death of the ancestor without having* appeared to the suit, abates the suit, and it cannot he revived and prosecuted against the heirs of the original defendant. The 31st section of the act of 1789 is clearly confined to personal actions, as the power to prosecute or defend is given to the executor or administrator of the deceased party, and not to. the heir or devisee. Mocker’s Heirs v. Thomas, 7 Wheat. 530,
As to substitution of parties. — Unless the fact be admitted by the parties, the person applying to be substituted as representative must show himself to be such, by the production of his letters testamentary or of administration, before he can be permitted to prosecute; but if the order for his admission as a party be made, it is too late to contest the fact of his being such representative. Wilson v. Codman’s Executor, 3 Cranch, 193.
Upon the death of the plaintiff, and appearance of his executor, the defendant is not entitled to a continuance. Nothing in the act induces the opinion that any delay is to be occasioned where the executor is substituted and is ready to go to trial. But an executor made defendant is entitled to one continuance to allow him to inform himself of the proper defence. Ib. 207.
As to jurisdiction. — If the jurisdiction of the court has attached, it cannot be divested by any subsequent events. If, after the commencement of the suit, the original plaintiff removes into and becomes a citizen of the same State with the adverse party, the jurisdiction over the cause is not divested by sucli change of domicil. Morgan’s Heirs v. Morgan, 2 Wheat. 290, 297; Mollan v. Torrance, 9. Wheat. 537; Dunn v. Clarke, 8 Peters, 1; Clarke v. Mathewson, 12 Peters, 170; Hatch v. Dorr, 4 McLean, C. C. R. 112; Hatfield v. Bushnell, 1 Blatchford, C. C. R. 393,
In the section above alluded to, Congress manifestly treat the revivor of the suit by or against the representative of the deceased, as a matter of right, and as a mere continuation of the original suit, without any distinction as to the citizenship of the representative, whether he belongs to the same State where the cause is depending, or to another State. Clarke v. Mathewson, 12 Peters, 172. And accordingly in the last case, a bill of revivor, being treated as the continuance of the old suit, brought by the representative, who was a citizen of the same State with the defendants, was allowed, and the jurisdiction of the court sustained, and the decree of dismissal (2 Sumner, 262) reversed.
As an original suit, it could not be maintained (4 Cranch, 306; 8 Wheat. 642 ; 4 Mason, 435 ; 12 Peters, 170), because the parties to the record would be citizens of the same State. The court has jurisdiction, because it had it originally, and because the substituted party comes in to represent the deceased, and to prosecute a pending suit, and not to begin a new one.
In Dunn v. Clarke, 8 Peters, 1, an injunction bill was sustained, although the parties were citizens of the same State, because the original judgment under vvhieh the defendant in the injunction bill made title, as the representative in the realty of the deceased, had been obtained by a citizen of another State in the same circuit court.
And so in Hatch v. Dorr, 4 McLean, C. C. R. 112, it is held, that as a cred itor’s bill is merely the continuation of the suit at law, and intended to realize the fruits of the judgment, and cannot be considered as an original proceeding, the jurisdiction may be maintained, although the complainant has become a citizen of the same State with the defendant, whore the judgment was rendered.
It was said, in Green v. Watkins, 6 Wheat. 260, that the death of the party neither raises any new right or cause of action, nor produces any change in the condition of the cause or in the rights of the parties. If these remain unaffected, it would seem to follow that the jurisdiction is likewise unaffected, irre^ spective of the citizenship of the personal representative.
The administrator, if admitted, is not to be considered in the light of an original party. The action was commenced and regularly pending in the lifetime of his intestate, who was the original party; and he comes in, not in his own right, but merely as the representative of such original party. It is in this special character, and under these special circumstances, that he appears and prosecutes. Hatfield v. Bushnell, 1 Blatch. 395.
An executor or administrator may bring a scire facias in the circuit court to revive a judgment recovered therein in a suit brought by the testator or intestate, or to have execution against the bail in the suit, or if no judgment be recovered in the suit so brought, but it be still pending, may become a party to and prosecute the same, although ho may be a citizen of the same State with the adverse party, and for that cause incompetent to bring in such court an original suit against him. Ib. | [
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Opinion on the Court. — In this case, the plaintiffs obtained a judgment on the law side of this court against Maxwell, on which execution issued, directed to the sheriff of Arkansas county. The defendant applied to the circuit court of that county to stay proceedings, and obtained an injunction, as appears by the sheriff’s return on the execution. The plaintiffs now ask the issuing of an alias execution, notwithstanding the injunction, which they contend is a nullity. The bill is made returnable to the circuit court of Arkansas county, and is there to be tried and heard; and the question is directly involved, whether the circuit court has the power to stay the process and proceedings of the superior court, and by interlocutory or final decree enjoin, restrain, or control our acts.
We believe there is no power so to do; nor do we think one circuit court has the right to restrain or control the proceedings of another, so as to draw to itself an investigation properly belonging to the court where the suit at law was tried, much less to enjoin the proceedings of this court and retain the bill there. A course of practice fraught with so much inconvenience to suitors, and embarrassment to this tribunal, cannot be submitted to nor supported. It is disrespectful to us, and badly calculated to attain the ends of justice and equity. It is due to the superior court to know whether its judgments and process are properly or improperly intercepted. If improperly, must this court await the tedious investigation of a suit in chancery in the circuit court before it can enforce its judgments, and before it can know in any legitimate way whether the restraint is in conformity with equity or not ? Can it be insisted, that after having permitted a judgment to go against him in this court, a party may, by applying to an inferior, paralyze the arm of the superior court, and make the efficacy of our judgments and decrees dependent on an inferior tribunal? We think not.
Besides, this bill ought to have been addressed to and returned into this court, where the judgment was rendered, so as to have afforded an early opportunity of withdrawing or continuing the restraint on the judgment, as should seem most consistent with equity. The power of the circuit judges to grant injunctions in proper cases is not denied. Such a power may well be said to be an incident to every court of record that can exercise chancery jurisdiction. But the right to retain this bill, and to proceed to the determination of it, is quite a different thing, and cannot be admitted.
If the circuit court has a right to stay our proceedings during an investigation in a suit in chancery, and at last forbid our proceeding at all to execute our judgments, it has as good a right to interfere in the trial of every suit here, and thus enfeeble our powers, forbid the trial of any and every suit on the docket, and hold our judgments and decrees subject to its will; in fact, it would make the inferior paramount to the superior tribunal. It need only be proposed to insure the rejection of such a doctrine. We are, therefore, of opinion that an alias execution should issue, and that the plaintiff should recover the costs of this motion. Ordered accordingly. | [
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Carleton Harris, Chief Justice.
Appellee, C. D. Van Houten, instituted this action to obtain possession of a certain 80 acres of land located in Prairie County, Arkansas. The complaint was filed in November, 1955, in the Circuit Court of Prairie County (Northern District), and a default judgment was granted in favor of Van Houten February, 1956, which was later set aside. Appellant herein, Anne Board, intervened during the same month, claiming title to the lands in controversy by virtue of a deed from her mother and father, dated April 17, 1947, and recorded March 19, 1954. Upon her motion, the cause was transferred to the Chancery Court of the Northern District of Prairie County.
The background of this litigation is as follows. The Crittenden County Chancery Court entered a decree on July 25, 1952, awarding judgment against Mrs. Howell in the amount of $3,416, and to secure same, a constructive trust was declared. An alias execution was issued by the clerk of the Crittenden County Chancery Court pursuant to said decree. The judgment creditor caused a certified copy of the decree to be recorded with the clerk and recorder of the Northern District of Prairie County on August 14, 1953. As of that date, the record title to the lands in controversy was in the name of Maurine Howell, who had acquired her title by deed in 1945. Subsequently, execution was issued in September, 1953, and an order was issued by the Prairie Chancery Court, restraining the sale until after a further hearing in the Crittenden County Chancery Court; following the refusal of the latter court to set aside its decree, the Prairie County sheriff advertised the lands for sale, and said sale was held on June 5, 1954. Appellee was the highest bidder for the lands, and at the end of the statutory period for redemption, received his sheriff’s deed (June 5, 1955). Upon trial of the issues, the chancellor dismissed appellant’s intervention and cross complaint, awarded appellee possession of the lands in controversy, and quieted and confirmed his title in and to said lands, as against the defendant, Maurine Howell, and the intervener, Anne Board. From such decree, comes this appeal.
For reversal, appellant simply asserts that the chancellor had no authority to cancel appellant’s deed, dated April 17, 1947, except for fraud in its procurement, and contends that the appellee failed to meet the burden of' proof necessary to establish such fraud. Appellee contends that the deed from Maurine Howell to her daughter was a fraudulent conveyance, made in an attempt to-defeat the right of judgment creditors, and furthermore contends, that because appellant had personal knowledge of proceedings to sell the land, and the sale itself, and did not assert any right to said lands for long months afterwards, Mrs. Board is barred by laches and estopped from claiming title to said lands. We shall not discuss the latter contention, since we feel the issue is determined by the former.
After a review of the testimony and exhibits, we have come to the conclusion that the proof was ample to support the chancellor’s action in cancelling the deed dated April 17, 1947, for we consider the preponderance of the evidence to reflect that the deed was not actually executed at that time.
Appellant testified that she lives at Miami, Florida, with her husband, having lived there since 1956 . . . the property was deeded to her by her father and mother on April 17, 1947 . . . her child had been stricken with polio the summer before, and the purpose of the conveyance was to provide witness and her child with a permanent home . . . she was living on the property at the time of the execution of the deed . . . did not record the deed at the time because she had gotten a divorce in January of 1946 and “I just did not want any legal complications coming up ... put the deed with some other papers and misplaced it . . . later located it, but saw no need to record it until March, 1954 . . . recorded it at that time because “they were going to sell the property in my mother’s name,” and witness did not want her own property sold . . . she lived in “West Memphis in 1951 and part of 1952 . . . returned to Prairie County in May of 1952, and moved to an adjoining 40 acres, her mother and father living on the 80 acres in question . . . she continued to live on the 40 acres from 1952 to 1956 and her mother and father continued to live on the land here in litigation . . . the reason for such arrangement was that the house on the 40 acres was larger and appellant needed more room . . her mother has paid all taxes on the 80 acres from 1947 through 1956 (except for the year of 1955 when taxes were paid by Van Houten) . . . though her parents have lived upon and farmed the land in question, no rent has been paid by them ... in 1956, appellant moved to Florida, where she presently resides.
A pertinent exhibit is a deed from Mrs. Howell to her daughter dated August 18, 1953. This deed conveys identically the same property as purportedly was conveyed by the deed of April 17, 1947, and was also recorded on August 18, 1953. When questioned about the need for this deed, if the first had already been executed, Mrs. Board testified that it was executed because the first one had been misplaced. We think it significant that it was recorded on the same date it was executed, though she testified that one reason for not recording the 1947 deed was that she did not know “it was necessary.” Of even more significance is the fact that the 1953 deed was executed and recorded only four days after the certified copy of the judgment of the Crittenden Chancery Court was recorded in Prairie County. Since such deed was executed after the recording of the judgment, it, of course, was of no aid in defeating creditors, as the lien on the real estate had already attached. Such lien could only be defeated if a bona fide deed had been executed prior to the recording of the judgment. One of the most incongruous parts of Mrs. Board’s testimony dealt with certain language used in both deeds. Appellant testified that the deeds were prepared by her mother. Both convey the property to appellant and contain the typed in language:
“As feme sole, to her sole and separate use, free from debts, contracts, control and marital rights (including courtesy both initiate and consummate) of her present or any future husband she may have, with full power in her to sell, mortgage, convey, encumber, devise or otherwise dispose of same as though she were a feme sole. ’ ’
This knowledge of the law hardly seems compatible with Mrs. Howell’s general background.
The deed, purportedly executed in 1947, was acknowledged by one M. S. Dorsett, justice of the peace, and in going to the home of Mr. Dorsett, the Howells drove several miles further than would have been necessary had they gone to the county seat at Des Arc. Mr. Dorsett testified that the date had already been typed in when presented to him, and that he could not state upon what date the deed was acknowledged. From the testimony:
“Q. You wouldn’t know whether it was in 1947 or 1954 when they came before you?
A. Well, I am not swearing to it, not the date, not the exact date on that, no, I am not. * * * It was several years back. I don’t keep no records of it.”
Sheriff E. O. Hamilton of Prairie County testified that he conducted the sale on June 4, 1954, and that Mrs. Howell and Mrs. Board were present. He testified they were objecting to the sale, and when asked as to their reason for objecting, answered:
u* * * They gtated the land belonged to Mrs. Howell, that she did not want it sold until she could finish her lawsuit, was my understanding.
Q. I will ask you if at any time Mrs. Howell or Mrs. Board, during the execution of sale or before the execution of sale, stated to you that Mrs. Anne Board was the owner of that property or that she was claiming to be the owner?
A. I just don’t recall them claiming it was hers.”
Appellant admitted that she knew her mother had brought a suit in the Prairie Chancery Court in October, 1953, seeking to restrain the sheriff from proceeding with the sale at that time, and stated: “I was not into it at all, other than it was my property, and she was trying to have this judgment set aside, as far as I knew.” She further admitted she was aware that her mother had filed a motion in the Crittenden court to set aside the original judgment, and that that court had entered an adverse ruling. She testified that her reason for not joining in the court actions to prevent the sale was that her child required all of her attention, “and still does.” This explanation appears a bit “shallow” since it takes but little time to consult an attorney, and more particularly, since Mrs. Board seems to have had sufficient time to subsequently consult attorneys.
Summarizing the evidence upon which we base this opinion, we find:
1. That although appellant claims the property became hers in April, 1947, she has never paid any taxes, and the taxes through 1956 have been paid by her mother.
2. Her reasons for failure to record the deed are unimpressive. First, she stated she was afraid of legal complications from her ex-husband (from whom she had been divorced more than a year prior to receiving the deed) concerning the property; subsequently, she misplaced the deed, then, after locating it, failed to record same because she didn’t know it was necessary.
3. While stating that the property was given to her as a home for herself and child, she apparently has made no such use of it, since the evidence reflects she has not lived on the place since prior to 1951, though living on an adjoining forty for four years of that time.
4. During the above period, the land involved was farmed by her mother and Mr. Howell, though admittedly no rent was paid to appellant.
5. The deed of August 18, 1953, was executed, and recorded, only four days after the certified copy of judgment of the Crittenden Chancery Court was recorded in Prairie County.
6. Appellant admitted she was familiar with her mother’s efforts to prevent the sale of the property, but did not join in such efforts.
7. Sheriff Hamilton stated that at the time of the sale in June, 1954, both were present, and claiming the land belonged to Mrs. Howell.
8. The 1947 deed was not recorded until Mrs. Howell’s motion to vacate the original judgment had been denied.
We are of the opinion that this evidence was sufficient to establish that the deed dated April 17, 1947, was not actually executed at that time; that it was executed subsequent to the recording of the certified copy of judgment from Crittenden Chancery Court; was executed for the purpose of defrauding creditors, and the Chancellor was justified in cancelling both deeds.
Affirmed.
See Howell v. Van Houten, 227 Ark. 84, 296 S. W. 2d 428.
Appellant also filed a cross complaint against Van Houten, Sheriff E. O. Hamilton, and one Fletcher Livesay, seeking damages allegedly resulting from the wrongful sale of the property. This issue was not developed during the trial.
See Section 29-130, Ark. Stats. 1947 Anno. | [
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Larry D. Vaught, Judge.
Jerrell Yancey appeals the decision of the Workers’ Compensation Commission finding that he had been made whole by the proceeds of a third-party lawsuit and that appellees, B&B Supply and Federated Mutual Insurance Company, were entitled to subrogation pursuant to Ark. Code Ann. § 11-9-410 (Supp. 2005). We reverse the decision of the Commission and remand for an award of benefits.
On August 24, 1999, Yancey worked as a truck driver for B&B Supply. While having his truck loaded at the premises of a third party, he was struck by a forklift driven by an employee of the third party. Yancey was thrown into the air and received injuries to his back and left knee, requiring surgery on the knee. Appellees initially accepted Yancey’s claim and paid benefits. Appellees later argued Yancey was not entitled to permanent disability benefits. The Administrative Law Judge conducted a hearing and assigned a permanent impairment rating of two percent to Yancey’s left lower extremity and ten percent impairment to his body as a whole as a result of the back injury.
Yancey also filed a civil action against the third party seeking damages for past and future medical expenses, permanent injury, and pain and suffering. The jury awarded him $235,000. The jury found that Yancey was thirty percent at fault for the accident, so his award was reduced to $164,500. The jury also awarded Yancey’s wife damages in the amount of $15,000, which was reduced to $10,500 due to Yancey’s contributory negligence.
In reviewing decisions from the Workers’ Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings and affirm if they are supported by substantial evidence. Logan County v. McDonald, 90 Ark. App. 409, 206 S.W.3d 258 (2005). Substantial evidence is that evidence that a reasonable person might accept as adequate to support a conclusion. Id. The issue is not whether this court might have reached a different result from that of the Commission or whether the evidence would have supported a contrary finding. Id. We will not reverse the Commission’s decision unless we are convinced that fair-minded persons with the same facts before them could not have reached the conclusions arrived at by the Commission. Id.
Under Ark. Code Ann. § 11-9-410, employers or workers’ compensation insurance carriers have a statutory lien against proceeds recovered from a third party for the injury sustained by the employee. However, that right is not absolute; rather, the insurer’s lien right against an insured’s settlement with a third party is subject to a court’s approval after the carrier has been afforded an opportunity to be heard. S. Cent. Ark. Elec. Coop. v. Buck, 354 Ark. 11, 117 S.W.3d 591 (2003); see also Gen. Accident Ins. Co. v. Jaynes, 343 Ark. 143, 33 S.W.3d 161 (2000); Phillip Morris USA v. James, 79 Ark. App. 72, 83 S.W.3d 441 (2002). An insured’s right to be made whole takes precedence over an insurer’s right to subrogation, and an insured must be fully compensated before the insurer’s right to subrogation arises. Buck, 354 Ark. at 18, 117 S.W.3d at 595. Therefore, the insurer’s right to subrogation arises only in situations where the recovery by the insured exceeds his or her total amount of damages incurred. Id., 117 S.W.3d at 595.
Our supreme court has stated that “the precise measure of reimbursement is the amount by which the sum received by the insured from the [third party], together with the insurance proceeds, exceeds the loss sustained and the expense incurred by the insured in realizing on his claim.” Franklin v. Heathsource of Ark., 328 Ark. 163, 168, 942 S.W.2d 837, 839-40 (1997); see also Buck, 354 Ark. at 20, 117 S.W.3d at 597.
The court’s analysis in Buck is illustrative of how to apply the formula. In Buck, the claimant was removing a limb from a power line for his employer when he was hit by a car driven by a third party. He received workers’ compensation benefits in the amount of $21,979.33 (medical expenses and lost wages). The claimant subsequently filed a lawsuit against the third party for lost wages, medical expenses, and pain and suffering. The compensation carrier intervened asserting its right of subrogation. The jury found the claimant had sustained damages of $80,000, but the jury reduced the award by forty percent because of the claimant’s contributory negligence and awarded the claimant $48,000. The court found that the claimant had not been made whole and applied the formula in the following way:
Here, the jury determined that [the claimant] incurred damages of $80,000. He actually received a judgment of $48,000. From that judgment amount, costs and attorneys’ fees totaling $21,973.22 must be deducted, leaving $26,026.78 in settlement proceeds. This amount combined with the $21,979.33 that [the claimant] received in compensation benefits totals $48,006.11. Clearly this amount does not exceed the damages incurred by [the claimant]. Assuming arguendo that the jury did take into account the $21,979.33 paid by [the compensation carrier], [the claimant] still incurred $58,020.67 in non-reimbursed losses; thus, the judgment of $48,000 is still less than the damages incurred by [the claimant].
Buck, 354 Ark. at 20, 117 S.W.3d at 597.
In applying our supreme court’s analysis to the facts of the present case, the jury determined that Yancey incurred damages amounting to $235,000. Yancey actually received a judgment in the amount of $164,500, which totaled $166,334.18 including interest. After deducting $77,762.34 for Yancey’s costs and attorneys’ fees, Yancey had $86,737.66 in proceeds. This amount added to the $21,335.50 in compensation benefits paid to Yancey totals $108,073.16, an amount clearly not exceeding the total amount the jury found Yancey had incurred as damages — $235,000. Even if we added the amount awarded to his wife, $10,500, to the total amount, it would not exceed the total amount the jury had determined as Yancey’s damages.
Appellees argue that allowing Yancey to keep his third-party proceeds and his workers’ compensation benefits establishes double recovery. However, the jury awarded him damages in an amount more than what had been paid by the compensation carrier. In Franklin, the supreme court found that the claimant was not made whole because the compensation insurance carrier had not paid all of the claimant’s medical expenses, let alone any of the additional expenses he had incurred as a result of the incident. 328 Ark. at 168, 942 S.W.2d at 840. Furthermore, in Logan County, supra, we stated that a third-party settlement is a tort action, for which a portion of the jury award can be due to pain and suffering •— a damage award not available through workers’ compensation. The jury could base its award of damages on more than just past medical expenses and permanent injury. It could also award damages for mental anguish and pain and suffering.
Based on our previous case law and the mandate of our supreme court, we reverse the decision of the Commission. The Commission’s order did not attempt to apply the formula established in Franklin and applied in Buck. It is clear from our calculations using the formula that Yancey was not made whole by the third-party recovery. For this reason, the Commission’s decision was not supported by substantial evidence.
Reversed and remanded.
Hart and Neal, JJ., agree. | [
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Sam Robinson, Associate Justice.
Appellant, H. O. Williams, a school teacher, was convicted of the crime of involuntary manslaughter and sentenced to two years in the penitentiary and fined $1,000. On appeal appellant contends, among other things, that the evidence is not sufficient to support the verdict.
On the 25th day of February, 1957, Williams attempted to drive an old truck in a bad state of repair, to a shop at Weldon, in Jackson County, Arkansas, to have it repaired. He could not get the vehicle started, and it was therefore necessary to get assistance by having the truck pushed. Before he reached the hard surfaced road he got stuck in a mud hole. He left the truck there overnight; went back the next day and got Mr. Carr, who lived nearby, to pull him out of the mud hole with a tractor. Finally Williams arrived at the hard surfaced road with the truck and started north toward Weldon, about two miles distant. After traveling about one-half mile the truck began to sputter and stopped. The hard surfaced part of the road is 23 feet wide, and the truck came to a stop in the middle of the east travel lane. This was about 7:00 p. m. It was dark and drizzling rain. Williams had no flares. There was no tail light on the truck, and although one headlight had been burning when the truck was running, no light on the truck would burn after it stopped. Accepting Williams’ testimony as true, he attempted to push the truck off the paved portion of the highway but was unable to do so. He attempted, also, to get other travelers on the highway to stop and help him, but none would stop. He then started walking toward Weldon with the intention of getting a garageman to come and move the truck. He had gone only a short distance when Mr. Burton, with whom he was acquainted, stopped and picked him up. At that time Burton cautioned Williams that the truck had been left in a dangerous place. Williams rode to Weldon with Mr. Burton and proceeded to the garage to get Euil Malden to go move the truck. Malden was eating his supper at the time, and he told Williams that he would have to finish his supper and finish the work he had been doing on a tractor before he could go after the truck. Williams was under the impression that this would not be too long. He sat down and waited for Malden until work was finished on the tractor. This work was not completed until about nine o’clock.
In the meantime Mr. Jimmy Ray Simmons was driving his car north on the same road where the truck had been left; he was going in the same direction the Williams truck was headed when it stopped. In the car with Mr. Simmons were his wife and son, and Mr. Jim Benning and his wife and son, and Mrs. Benning’s daughter, Linda, nine years of age. As Mr. Simmons approached the Williams truck, but before he got to a point where he could see it, he was met by a truck driven by Clyde Henderson, traveling south. The lights from the Henderson truck blinded Simmons to the extent that he did not see the Williams truck until just a few feet from it. In an attempt to miss the Williams truck, he swerved to his left in such a manner that he struck the end of the rear bumper of the Henderson truck, which was passing at that moment, but he was unable to avoid striking the left rear of the Williams truck, which had a grain bed on it. As a result of the collision, Mrs. Benning and her daughter, Linda, received injuries from which they died two days later. The prosecuting attorney filed a felony information against Williams, charging him with manslaughter.
The point that has caused us considerable concern is whether the evidence is sufficient to sustain the conviction. After careful deliberation we have reached the conclusion that the evidence is sufficient. The facts are pretty well outlined above. On a dark and misty night the appellant left a heavy, two-ton, unlighted truck, equipped with a wide grain bed, in the middle of one of the travel lanes of a good hard surfaced road. He set out no flares, and had left the truck unguarded for about an hour and a half, when the tragedy occurred. Although, even if it is considered that it was necessary that he leave the truck on the highway unguarded in the first instance, it was a question for the jury as to whether Williams should have returned to the truck as soon as possible to help guard against the very thing that did happen. When he found out that Mr. Malden could not go after the truck immediately, he could have started walking and reached the truck a long time before the collision occurred. And if he had been with the truck when the cars approached at the same time from opposite directions, it is not beyond the range of possibility that he could have given signals that would have saved two lives. He knew the truck was in a dangerous place ; he knew the night was dark and that weather conditions caused poor visibility; and yet, for one and one-half hours, he did nothing to remedy the extremely dangerous situation he had brought about. Ark. Stat. § 41-2209 provides: “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.” The defendant was charged in the words of the statute.
Appellant contends that the second part of § 41-2209 covers the offense of involuntary manslaughter resulting from the driving of an automobile exclusively; that the first part has no application when the death grows out of driving an automobile; and that the court erred in instructing the jury on doing a lawful act without due caution and circumspection. It is not necessary, however, to discuss this point, because an exception was not saved to the instruction as given. As far back as the year 1915, in the case of Madding v. State, 118 Ark. 506, 177 S. W. 410, the court held that the first part of the statute, which was the only part in effect at that time, applied to the driving of an automobile “with reckless abandon and wanton disregard of the rights of others upon the streets and without a care as to their safety.”
Appellant requested instructions dealing with efficient and immediate cause of the accident, and proximate cause. We think these instructions were covered by other instructions given by the court.
The defendant requested, also, instructions on “misfortune or accident.” There is no evidence in the record to justify any instruction along that line.
Appellant also complains of the court’s refusal to excuse for cause the venireman Breckenridge. On examination by counsel for the defendant Mr. Breckenridge stated that he had an opinion about the case that would take evidence to remove. But on further examination, he stated that he could and would go into the jury box with his mind completely open and try the case solely on the law and the evidence.
The appellant is a Negro. On December 9th, two days before the trial began, he filed a motion to quash the jury panel on the ground that there has been systematic exclusion of Negroes from jury panels in Jackson County and that there was no Negro on the present jury panel. Two days later when the case was called to trial, no action had been taken on the motion. Counsel for defendant orally renewed the motion; it was overruled and exceptions were saved. The court stated: “Since January 1, 1952, the matter of selecting jury commissioners and instructing such commissioners has been the responsibility of this court. In every case, when jury commissioners were called upon to serve by the court, they have been instructed specifically and in considerable detail to the effect that there should be no discrimination on their part in the selection of members of jury panels because of race, color, creed or sex. Of course, - no suggestion has ever been made as to whom should be placed on jury panels, but particular care has been used by the court to instruct these commissioners that they should place on such lists the names of people who were qualified electors and who, in their judgment, were people of good character and possessing such qualifications that in their considered opinions would make good jurors. Embodied in these instructions has been an explanation of the fact that a part of their duty was to carefully consider all of the population of Jackson County and if, in their opinions, there were members of the Negro race who possessed the necessary good character and judgment to qualify them for jury service that it would certainly be proper for them to include them on these lists. During these years it has been the court’s personal observation, and the court takes judicial notice of the fact that frequently names of members of the Negro race have appeared on the jury panel lists, and not only that, but they have qualified and have served as petit jurors during this period of time.” Counsel for the defendant then stated: “We are tendering the proof that there is no Negro on this panel, or these panels; there was one Negro, Willie Booker, on the February, 1957, panel; there were two Negroes, O. A. Porter and John Laird, on the September, 1956, panel; and there were two Negroes, Mack Newton and one other person, on the February, 1956, panel.”
Purposeful and systematic exclusion of the members of any race from jury service is contrary to law, but, as we said in Dorsey v. State, 219 Ark. 101, 240 S. W. 2d 30, ‘ ‘ The burden of showing facts which permit an inference of purposeful limitation is on the defendant. Martin v. Texas, 200 U. S. 316, 26 S. Ct. 338, 50 L. Ed. 497.” In the case at bar the proffered testimony falls far short of showing that there was purposeful or systematic exclusion of Negroes from jury service.
The State introduced as evidence pictures of the scene of the collision. In one of these pictures there is a State policeman’s automobile. We do not see how the automobile in the picture could in any way be prejudicial to the defendant. The width of the road and the width of the shoulders of the road were shown by other uncontroverted evidence. We do not think there was an abuse of discretion by the trial court in admitting the picture in evidence. Southern National Ins. Co. v. Williams, 224 Ark. 938, 277 S. W. 2d 487.
Dr. T. E. Williams, who treated Mrs. Benning and her daughter for the fatal injuries they received in the collision, over objections and exceptions of defendant, was allowed to state the nature of the injuries which resulted in their deaths. The prosecution made no effort to emphasize or dwell on the nature of the injuries for the purpose of arousing emotions of the jury. The doctor ’s testimony as abstracted by appellant is as follows: “Mabel Benning was very severely injured and was in deep shock; she had a compound fracture of the right elbow and of the right ankle; she had a cerebral contusion, cerebral concussions, multiple bruises and lacerations scattered around her body; Linda Schol was in extreme shock, she had cerebral contusions, a comminuted fracture of the forearm, multiple abrasions, lacerations and bruises around her body; Mabel Benning was given the usual shock treatment of glucose and an attempt was made to reduce the fracture as much as possible to help relieve the shock; she was given narcotics for pain and an attempt was made to get her out of shock (Tr. p. 114); she died February 28th at 5:20 P. M. from brain damage; Linda Schol died February 28th at 10:45 P. M. from shock plus brain damage. ’ ’
Of course, it was incumbent upon the State to prove the corpus delicti. Failure to prove the cause of death could be fatal to the State’s case. Cole v. State, 59 Ark. 50, 26 S. W. 377. And, although the State may have had the right to rely on the defendant’s admission in open court that the deaths were the result of the collision, the State was not required to rely on such admission to establish the corpus delicti.
Other points are argued, all of which we have examined carefully, but we find nothing calling for a reversal.
Affirmed.
Harris, C. J., dissents.
Johnson, J., not participating. | [
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HUMPHREYS, J.
Appellant, prosecuting attorney of the Nineteenth Judicial Circuit, was indicted, tried and convicted in the Garland Circuit Court of prosecuting W. S. Jacobs, Porter Austeel, Butch Wright and George Ryan, operators of a gambling house at 336% Central Avenue, in the city of Hot Springs, for misdemeanors instead of felonies. The indictment charged in substance that appellant filed information against said parties for misdemeanors for gaming, instead of prosecuting them for felonies for operating a gambling house, in order to encourage said parties in the commission of the offenses. A fine of $400.00 was imposed by the verdict. Judgment for the fine and cost's was rendered against the appellant, the validity of which is questioned by appeal to this court.
The first assignment of error insisted upon for reversal is the overruling of appellant’s motion suggesting the trial court’s disqualification and requesting him to certify such disqualification. The identical question was recently decided adversely to the contention of appellant by this court. We think our conclusions were correct and adhere to the principles announced in the case of Bledsoe, Sheriff v. State, 130 Ark. 122.
Appellant filed a motion to quash the indictment and insists that the court erred in overruling it. This is a second indictment against appellant for malfeasance in office. The first indictment was quashed by the trial court on motion of appellant, presumably for the reason that the court had 'conducted the examination of the witnesses before the grand jury, upon whose testimony the original indictment was returned. After quashing the first indictment, the question of gambling and whether such offenses had been countenanced and encouraged by certain officers was referred by the court to another grand jury. On request of appellant, Mr. Wootton, a member of the Hot Springs bar, was selected to assist the grand jury in the investigation of the gambling situation. It was held by this court in the case of Bledsoe, Sheriff v. State, supra, that the participation of the trial court in the examination of witnesses in a former investigation before the grand jury, did not constitute him either an attorney or counsel in the case within the meaning of Section 20, Article 7, of the Constitution of Arkansas. We also held that the trial court’s participation in a former investigation of the same question before a grand jury could not be urged as cause for quashing an indictment returned by a different grand jury upon a subsequent investigation in which he did not participate.
(1) But it is now urged that the instructions given the grand jury that returned the present indictment were of an inflammatory nature, and that the purport of the charge indicated that the trial judge desired that the grand jury return an indictment against appellant. Errors committed by a trial court in instructing grand juries do not constitute grounds for quashing indictments returned by them. Section 2279 of Kirby’s Digest points out only three grounds upon which an indictment can be set aside on motion. The reasons insisted upon for setting aside the indictments in the instant case do not come within the authorized grounds under said section of the digest.
(2) Appellant’s motion for a change of venue specified that the minds of the inhabitants of G-arland County were so prejudiced against him that he could not obtain a fair and impartial trial therein. Twelve citizens of the county subscribed to an affidavit supporting the motion. They were brought before the court and thoroughly examined as to the extent of their knowledge concerning the matters set forth in the motion. One of them was related by marriage to appellant; others wavered on the proposition of whether it was not possible for appellant to get a fair and impartial trial, and most of them confined their knowledge to the feeling of inhabitants residing in a particular locality in the county. The statute contemplates that the subscribing witnesses shall have fairly accurate information concerning the state of mind of the inhabitants of the entire county toward the defendant. The subscribing witnesses in the instant case failed to meet the requirement of’ the statute in this respect. This court has uniformly held that unless the trial court has abused its discretion in overruling a motion for change of venue, the order is conclusive on appeal. Bryant v. State, 95 Ark. 239, and cases cited. Ford v. State, 98 Ark. 139; McElroy v. State, 100 Ark. 301.
After a careful reading of the testimony of these witnesses, we cannot say the court abused its discretion in overruling the motion for change of venue.
(3) The sufficiency of the indictment is questioned. The indictment, in effect, charges that appellant fostered the crime of running gambling houses by proceeding against the operators thereof severally for gaming, a misdemeanor under the statute; instead of proceeding against them for feloniously operating a gambling house, a felony under the statute. It is said no such crime is known to the law. We differ from learned counsel in this contention. It is the duty of the prosecuting attorney to initiate proceedings against parties whom he knows, or has reason to believe, have committed crimes. Kirby’s Digest, Secs. 6398-6400.
(4) The fact that his duties rise to the dignity of exercising discretion cannot excuse neglect of duty on his part. Section 6395 of Kirby’s Digest imposes a penalty of not less than $50.00 nor more than $1,000.00 on the prosecuting attorney for neglect of duty. If the indictment sufficiently charges a neglect of duty, which this indictment does, it cannot avail to say that a demurrer should be sustained to it because the indictment charges malfeasance in office. “The name of the crime is controlled by the specific acts charged, and an erroneous name of the charge does not vitiate the indictment.” Lacefield v. State, 34 Ark. 275; State v. Culbreath, 71 Ark. 80; Harrington v. State, 77 Ark. 480; Kelley v. State, 102 Ark. 651.
(5) Another assignment of error insisted upon for reversal was the court’s refusal to permit appellant to ask veniremen on voir dire examination whether they opposed or supported appellant in his election to the office of prosecuting attorney. Electors are not supposed to cast their ballots for or against aspirants for office on account of bias or prejudice. The qualification of the candidate is the true criterion. Again, the secrecy of the ballot is accorded electors in this State and questions of this character would be a clear invasion of their right.
(6) Again,, it is urged that the court erred in admitting evidence tending to show the existence of other gambling houses in Hot Springs than the one mentioned in the indictment. The charge in the indictment challenged the good faith of the prosecuting attorney for not prosecuting operators of a certain gambling house under the anti-gambling act. His intention and motive was drawn in question. When a question of good or bad faith in the performance or non-performance of an official duty is involved, similar acts of commission or omission occurring about the same time, tending to prove the issue, are admissible. Howard v. State, 72 Ark. 586; Johnson v. State, 75 Ark. 427; Davis & Thomas v. State, 117 Ark. 296; Bledsoe v. State, 197 S. W. Rep. 17, 130 Ark. 122.
(7) In support of reversal, appellant challenges the correctness of the instructions given by the court, for the same reasons urged against the sufficiency of the indictment. Having upheld the indictment, it is unnecessary to reiterate the conclusions of the court in these particulars. The contention made ¡by the appellant is to the effect that because a wide discretion is vested in the prosecuting attorney with reference to the prosecution of parties for crime, that the right of discretion must necessarily shield him from indictment or prosecution' for omission to perform his duties. • This court takes a contrary view of the law. It is the duty of the prosecuting attorney, under the statute, though endowed with discretion in the performance of his duties, to exercise his discretionary powers in good faith. The jury was fairly instructed on this theory of the law, and after a careful reading of the instructions, we find nothing contained in any of them 'conflicting with this theory.
Instructions A, B, C and D, requested by appellant* were peremptory in nature and presented the opposite theory. We think they were properly refused.
(8) But it is contended that even under the State’s theory, reflected'by the instructions given by the court/ the verdict is not-warranted by the evidence. It is not within the province of this court to pass upon the weakness or strength of the evidence. If there is any legal evidence to support the verdict, the rule prevails that on appeal the verdict must stand. The record discloses that gambling houses were being operated openly in many places in Hot Springs in the months of December, 1916, and January, 1917. Not only so, but the very parties against whom the prosecuting attorney proceeded for gambling were operators of a gambling house during a portion of that time.- The sum total of the evidence discloses that with little effort the gambling houses could have been discovered. We think from the prosecuting at torney’s own statement lie obtained sufficient information from witness Young to warrant him in thoroughly investigating the gambling situation in Hot Springs. An ordinary investigation would have discovered the location of gambling houses in many parts of the city, and the paraphernalia and devices used therein. There was no lack of participants in the games, so witnesses were abundant. While the law does not impose the duties of a detective upon a prosecuting attorney, it does impose upon him ordinary diligence in discovering and abating crime.
(9) Lastly, it is urged that the verdict of the jury was determined by lot. Lot involves an element of chance. The quotient verdict is not the result of a lottery. It is a certain result ascertained by adding twelve separate amounts together and dividing the sum total by twelve. Only one result can be reached. It would be a lottery if twelve different amounts were placed on separate slips of paper and one slip then drawn out, which by agreement should become the verdict. The case of Williams v. State, 129 Ark. 344, cited by appellant in support of his contention, is not authority that a quotient verdict is a lottery. The quotient method of arriving at a verdict is condemned in the Williams case. The effect of fixing the punishment in that manner would compel a reduction of the punishment to the minimum fine under the rule laid down in the case of Williams v. State, supra. Verdicts o'f juries cannot be impeached by the evidence of jurors except where the verdict was reached by lottery. This kind of misconduct cannot be established by jurors. Thompson on Trials (2d Ed.), Sec. 2603.
Our attention is -called to the case of Walker v. State, 91 Ark. 497, as holding contrary to the view herein expressed. In that case, the record showed the term of imprisonment was fixed by lot and on that account the attorney general confessed error. In the case at bar, the record does not show that the amount of the fine was ascertained by lot.
No other evidence except the evidence of jurors being offered to establish the manner of arriving at the verdict in the instant case, and the method adopted not being a lottery, reversible error is not established by •competent evidence. The judgment is therefore affirmed.
SMITH, J., dissents. | [
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HART, J.,
(after stating the facts). It is insisted by counsel for, the defendant that there is a variance between the indictment and the proof. In this contention we think counsel is correct. The indictment was framed under section 1839 of Kirby’s Digest, which provides in effect that if any carrier or other bailee shall embezzle or convert to his own use money, property, etc., which shall have come into his possession as such bailee, he shall be deemed guilty of larceny and on conviction shall be punished as in eases of larceny. The defendant .should have been indicted under section 1841 of Kirby’s Digest. The section reads as follows:
“Section 1841. Every executor, administrator or guardian who shall embezzle or fraudulently convert to his own use, or make way with or secrete with intent to embezzle, or fraudulently convert to his own use, any money, goods, rights in action, property, effects or valuable security of his testator, intestate or ward, shall be deemed guilty of larceny, and on conviction shall be punished as in cases of larceny. ’ ’
The two sections provide that the offense of embezzlement as described in each section shall be deemed larceny and'punished as such, but different classes of offenders are sought to be reached.
Mr. Wharton says: “A trustee is one to whom certain property is given to hold and use for the benefit of a person called a cestui que trust. The term, therefore, is more comprehensive than bailee, a bailee being simply the custodian of specific property, and is less comprehensive than that of agent, an agent being employed to acquire as well as to hold.” Wharton’s Criminal Law (11 ed.), Yol. 2, Par. 1299.
Administrators, executors and guardians are frequently named in statutes as persons who may commit embezzlements of funds intrusted to their care. State v. Adamson (Ind.), 16 N. E. 181; State. v. Gillis (Miss.), 24 So. 25, and People v. Page (Cal.), 48 Pac. 326.
It is evident that the Legislature had in mind the distinction made by Mr. Wharton when it enacted section 1841 of Kirby’s Digest. The crime defined in that section of the statute is purely a statutory crime. In order that an indictment for the offense described in the statute be sufficient, the facts should be charged which would bring the case within the terms of the statute. The proof on the part of the State tended to establish the guilt of the defendant under this section of the statute. The indictment, however, failed to charge facts which would bring the case within the terms of the statute. In short, the indictment charged a crime under .section 1839 of Kirby’s Digest, and the facts shown by the State establish the offense described in section 1841 of Kirby’s Digest.
As we have already seen, the Legislature had in mind the punishment of different offenses in these two sections of the statute, and there was a fatal variance between the allegations of the indictment and the proof made in the case.
Therefore the judgment will be reversed and the cause remanded for a new trial. | [
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HUMPHREYS, J.
Appellants, collateral heirs of John R. Walden, deceased, brought suit in the White Chancery Court to recover the E. % of the S. E. % of Sec. 14; S. E. %, S. W. 14 of Sec. 13; and an undivided one-half interest in the W. % of the S. W. Sec. 13, T. 6 N., R. 10 W., in White County, Arkansas, from appellees. The vital issue presented by the pleadings and evidence to be determined by this court on ele novo trial is whether the deed of date June 22, 1893, of John R. Walden to Julia Walden, his wife, is a genuine or forged instrument. Appellants claim title to said land by inheritance from John R. Walden, deceased. Appellees claim title through mesne conveyances from the common source, John R. Walden. If the deed in question from John R. Walden to Julia Walden, of date June 22, 1893, is a forgery, appellants must prevail. If said deed is genuine, appellees must prevail.
(1) John R. Walden died in October, 1894. His only child died in infancy a few months thereafter. His wife afterwards married W. W. Duncan, and died in the early part of the year 1909. Prior to her death she and her husband, W. W. Duncan, who were residing upon the lands in question, conveyed same to David A. Blassin-game on the 3d day of August, 1899. On January 13, 1908, David A. Blassingame and wife executed a deed of trust on said real estate to David M. Doyle to secure the sum of $975.38. After Blassingame purchased said real estate from Julia Walden and her husband, W. W. Duncan, he entered into negotiations with appellants to purchase their remainder interest in said lands as heirs of John R. Walden, deceased, and agreed to pay them $400 for a quitclaim deed to said real estate. The deed was executed and, by agreement, a draft for $400 was attached thereto and same was deposited in the Peoples Bank in the city of Searcy in escrow, with instructions that the deed should be delivered to Blassingame when the $400 draft was paid. Blassingame failed to pay the money and the deed was never delivered to him. ÍTpon investigation, appellants discovered that the alleged forged deed from John R. Walden, deceased, to Julia Walden, of date June 22,1893, had been placed of record. They were advised by an attorney that the deed in question precluded them from successfully maintaining a suit "for the lands. Appellants then dropped the matter until the month of March, 1916, when they obtained information from Blassingame to the effect that the deed from John R. Walden for said real estate to his wife, Julia Walden was a forgery. Within a reasonable time, thereafter, appellants brought this suit against appellees to cancel the alleged forged deed and the mortgage executed by the Blassingames to David M. Doyle of date January 13, 1908, and to quiet the title to said real estate in said appellants as against appellees. Prior to the institution of the suit, David M. Doyle had died, and appellee, H. D. Russell, had been appointed executor in succession of the estate of D. M. Doyle, deceased, when this suit was commenced. The executor had brought suit to foreclose the mortgage on said real estate against the Blassin-games, and when Blassingame determined he could not liquidate or extend the mortgage, he divulged the alleged forgery of the deed in question to J. M. Walden, one of the appellants herein. He exacted a one-half interest in the real estate from Walden on account of improvements he had made upon the property for divulging the information, and at first Walden agreed to give him a one-half interest therein, but after Blassingame made the disclosure that he was a party to the fraud and after consultation with an attorney, he declined to enter into such an arrangement and brought suit against both Blassingame and the Doyle estate to cancel the deed and mortgage aforesaid. Blassingame testified positively that D. M. Doyle had agreed to advance him $400.00 to purchase the interest of appellants in said lands, and when he asked Doyle for it, Doyle told him he had a better plan and turned the deed in question oyer to him and suggested that he place same of record, which he did. The deed, including the acknowledgment and signature of the magistrate, is shown to be in the handwriting of Doyle. The justice of the peace who was supposed to have acknowledged the alleged forged instrument died prior to the institution of this suit. David M. Doyle told B. R. Picard that he had fixed up the deed, and Blassin-game showed him where they had torn the name “McClain” out of the J. P. docket, in order to imitate the name, and stated that was the way they kept from paying the $400.00 to appellant. Other witnesses testified to like statements and admissions by both Doyle and Blassingame. It is true that the cross-examination of some of the witnesses developed inaccuracies and conflicts, but after a careful reading of all the testimony, we believe the finding of the chancellor is contrary to a clear preponderance of the evidence. It is insisted that Blas-singame is an active plaintiff, and, therefore, precluded from giving testimony as to any transactions with or statements of the intestate, David M. Doyle. Blassin-game was made a defendant and filed answer denying all the material allegations in the complaint. He does not appear as a voluntary witness. It is affirmatively shown that before this suit was brought, and since, appellants positively declined to give or contract him any interest in the lands. He has no interest in the result of the suit. He is not pursuing the executor and is a co-defendant, hence, the provision of Sec. 3093 of Kirby’s Digest has no application to him and does not fender his testimony incompetent.
But it is contended that the evidence necessary to impeach a certificate of acknowledgment must be clear, cogent and convincing beyond reasonable controversy. The issue here is whether or not the officer ever certified the acknowledgment. It is not an attempt to impeach an acknowledgment duly certified. The question is — was the deed, acknowledgment and certificate forged? In the recent case of Nevada County Bank v. Wm. Gee and N. T. Gee, 130 Ark. 312, this court in construing the case of Polk v. Brown, 117 Ark. 321, cited by appellant, said that “where there is a claim that the grantor did not make any acknowledgment whatever before the officer, the weight of the evidence should not he affected by any particular rule peculiar to the subject, hut that the court should be left to determine from all the circumstances disclosed whether the certificate of acknowledgment is true or false.” We do not think the clear, cogent rule of evidence contended for is applicable to the issues involved in this case, but the rule laid down in Polk v. Brown, and Nevada County Bank v. Gee, supra, obtains.
It is insisted that one of the appellants, Walden, and Blassingame entered into a conspiracy to defeat the Doyle estate in the collection of its indebtedness secured by the mortgage in question; and not being'in court with clean hands, the bill should be dismissed. The record is not sufficient to warrant a finding that such a conspiracy exists.
(3) Our attention is called to the fact that Blassin-game was holding under a deed from Julia Duncan and her husband, W- W. Duncan, and that he held open and adverse possession thereof for more than seven years. The evidence clearly showed that Blassingame claimed a life estate only under the Duncan deed from date thereof, until June 22, 1893, a less period than seven years. During that period, he recognized the interests of appellants by contracting to buy the fee from them. On and after June 22, 1893, Blassingame relied upon the forged instrument as the source and foundation of his title. Appellants were induced not to bring suit for the recovery of their land on account of the forged deed being placed of record. Neither Blassingame nor Doyle were innocent purchasers, both having participated in the forgery of the deed in question, and for this reason the statute of limitations would not begin to run in their favor against appellants until the discovery of the fraud. This suit was instituted as soon as the fraud was discovered.
The cause is therefore reversed and remanded with instructions to enter a decree canceling the deed from J. R. Walden, deceased, to Julia Walden, of date June 22, 1893; also the mortgage from David A. Blassingame and wife to David M. Doyle of date January 13, 1908; and to quiet and confirm the title to said real estate in appellants as against appellees. | [
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HAET, J.
The grand jury returned two indictments against Pete Condit for selling intoxicating liquors. Each indictment charged him with the sale of intoxicating liquors on the 28th day of May, 1917. By agreement between the defendant and the prosecuting attorney, the two' cases were consolidated and tried together. The jury returned a verdict of guilty in each case. From the judgment of conviction the defendant has duly prosecuted an appeal to this court. It is agreed that the circuit court granted a new trial in one of the. cases and that alleged errors in only one of the cases are involved in this appeal.
(1) A detective was employed by the city of Fort Smith for the purpose of catching those who sold liquor there in May, 1917. This detective, the defendant, and another person drank some liquor together in an office building in the city of Fort Smith in Sebastian County, Arkansas. The defendant told the detective that they could purchase more liquor at a rooming house kept by Amy Cline in the city of Fort Smith. They went to her house and the defendant was given two dollars by the detective for the purpose of buying whiskey. The detective said the defendant was gone possibly two minutes and came back with a pint of whiskey which he set on the table; that he, the defendant, and the rooming house keeper all drank pretty freely out of it. Both the defendant and Amy Cline, the rooming house keeper, denied that the defendant sold or'delivered to the detective any quantity of whiskey at her rooming house. They said that the detective was very drunk when he arrived at her house and. that finally the rooming house keeper threatened him with the police before she could get him to leave. The testimony of the detective, if believed by the jury, was sufficient to warrant a conviction. Bobo v. State, 105 Ark. 462, and Williams v. State, 129 Ark. 344.
(2) It is also contended by the defendant that the court erred in refusing to give the following instruction:.
“2, Before the jury would be authorized to find the defendant guilty they must be satisfied from the evidence, beyond a reasonable doubt, that the defendant either sold the liquor himself or was in some way either directly or indirectly interested in the sale, if you find a sale was made.”
There was no error in refusing to give this instruction. It had a tendency to confuse and mislead the jury. Where the intermediary between the purchaser and the seller is a necessary factor without whose assistance the sale could not have been consummated, he is interested in the sale in the sense of the law, whether he has any pecuniary interest or not. Bobo v. State, 105 Ark. 462; Williams v. State, 129 Ark. 344, and Wilson v. State, 130 Ark. 204.
The instruction under consideration was misleading in this respect. The jury might have gathered from it that they should not find the defendant guilty unless he was pecuniarily interested in the sale of the liquor. The court instructed the jury fully on the question of the interest of the defendant necessary to be proved to convict him in accordance with the principles of law laid down in the cases just cited.
(3) Again it is contended that the court erred in giving instruction No. 3. The instruction is as follows:
“3. On the sale that is alleged to have been made at Amy Cline’s place, I charge you that if you find from the evidence in this case, beyond a reasonable doubt, that the prosecuting witness gave the defendant $2, and that the defendant took the same and left the prosecuting witness for a few minutes and then returned and delivered to him a pint of whiskey, or' any other amount, then in this event you should convict the defendant.”
The defendant contended that in this instruction the court invaded the province of the jury by expressing an opinion on the facts. "We do not agree with counsel in this contention. The issue of fact in this case was simple and the instruction is hypothetical in form. It contains a statement of the facts testified.to by the prosecuting witness and tells the jury if they find such facts to be true from the evidence in the case beyond a reasonable doubt, they should convict the defendant. This was not equivalent to directing a verdict nor was it a comment on the facts by the trial court. Parker v. State, 130 Ark. 234.
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HUMPHREYS, J.
Appellant instituted suit against appellees in replevin on the 14th day of December, 1916, in the circuit court of Sevier County to recover the possession of a lot of personal property covered by a certain mortgage executed by the Oil Well Drilling Company to it to secure two promissory notes for the sum of $1,030.96 each, due in sixty and ninety days after date, bearing interest at the rate of 8 per cent, per annum from date until paid.
Appellant had foreclosed its mortgage and purchased the property under the foreclosure sale. On the 16th day of May, 1916, the chattel mortgage in question had been mailed to the circuit clerk of Sevier County, Arkansas, in the same envelope with the following letter:
“Shreveport, La., May 16,1916.
“Circuit Clerk, Sevier County, De Queen, Ark.:
“Sir: We are enclosing herewith chattel mortgage •executed May 11, by the Oil Well Drilling Company, to the Continental Supply Company, amounting to $2,161.92 with notes payable in sixty and ninety days at 8 per cent, covering a drilling rig which the Oil Well Drilling Company are shipping to Lockesburg in your county.
“We are also enclosing herewith 25 cents in postage as we understand this to be the fee charged for the filing of this record, and we will thank you for your prompt attention in this matter.
“Yours truly,
“The Continental Supply Company,
“John T. Harrington,
“Local Manager.”
Appellees had possession and claimed title to said property, as attaching and judgment creditors of the Oil Well Drilling Company.
The cause was tried upon the pleadings, exhibits thereto and an agreed statement of facts before the court sitting as a jury. From the finding and judgment of the court adverse to appellant, an appeal has been prosecuted to this court.
The only error assigned by appellant for a reversal of the judgment is the declaration of law made by the trial court to the effect that the letter enclosing the mortgage to the clerk was not a sufficient endorsement by the mortgagee to meet the requisites of section 5407 of Kirby’s Digest in order to preserve a lien against strangers upon the property described in the mortgage. Section 5407 of Kirby’s Digest, is as follows:
“Whenever any mortgage or conveyance intended to operate as a mortgage of personal property, or any deed of trust upon personal property, shall be filed with any recorder in this State, upon which is endorsed the following words, ‘This instrument is to be filed, but not recorded,’ and which endorsement is signed by the mortgagee, his agent or attorney, the said instrument when so received shall be marked ‘filed’ by the recorder, with the time o'f the filing upon the back of said instrument; and he shall file the same in his office, and it shall be a lien upon the property therein described from the time of filing, and the same shall be kept there for the inspection of all persons interested; and such instrument shall thenceforth be notice to all the world of the contents thereof without further record.”
(1) This court has held that a substantial compliance with the statute is all that is required in order to create'a lien good as against strangers, on the personal property described in a chattel mortgage. State of Arkansas v. Smith, 40 Ark. 431; Price v. Skillern, 60 Ark. 112.
The agreed statement of facts discloses that the mortgagee did not actually endorse the following words,' in substance or in part, on the mortgage: ‘ ‘ This instrument is to be filed, but not recorded, ’ ’ and sign same. It is contended that the direction in the letter signed by the mortgagee enclosed with the mortgage in the envelope directed to the clerk, constituted an endorsement of the required words in substance upon the’ instrument, and a signing of same by the mortgagee.
There is no warrant in the statute for endorsing the words or their substance upon a separate piece of paper. The letter was no part of the instrument. The statute requires the endorsement to be upon the instrument. If the letter had been pasted on, or securely fastened to the mortgage, it might then be argued with some semblance of reason that the endorsement was on the instrument. Carrier v. Comstock, 108 Ark. 515. To hold, however, that the substance of the words written upon a separate sheet of paper and signed by the mortgagee is tantamount to an endorsement on the instrument itself, would amount to an arbitrary ruling, or a ruling unsupported by reason.
(2) In order to create and maintain a lien good as against strangers, a chattel mortgage must either be filed with the clerk for record or must bear an endorsement signed by the mortgagee, his agent or attorney, of import required by the statute. Unless the instrument bears such an endorsement in substance, signed by the mortgagee, no lien can exist on the chattels described in the mortgage as against the rights or liens of strangers. Bowen, Trustee, v. Fassett, 37 Ark. 507; Case & Co. v. Hargadine, 43 Ark. 144; Dedman v. Earle, 52 Ark. 164; First National Bank v. Bedingfield, 83 Ark. 109; Nix v. Watts, 121 Ark. 346.
Under this construction of the statute, the title to the property constituting the subject-matter of this litigation is in appellees.
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