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Hughes, J.,
(after stating the facts). While the testimony of the old woman, Eliza Lattie, as to the identity of the person who did the shooting that killed Delia Walker was not of the most satisfactory character, it was competent testimony, and there was no error in refusing to exclude it from the jury. It was for the jury to determine its credibility and give it such weight as they thought it entitled to. She testified she saw the man that did the shooting as he passed the window, and took him to be the appellant; that she knew -him by his walk. She admitted she could not see very well, and said, in effect, that one reason she thought it was the defendant was that Delia said it was Tom, and she believed it was. But she swears positively that it was the defendant, but said again that she could not see him well enough to distinguish who he was.
The testimony that Delia, the deceased, said, “Tom, if you want to come in, why don’t you come in like a man ? Why do you treat me that way?” was competent, and there was no error in allowing it. It was part of the res geslae.
The testimony of Stringfellow about the shell being picked up at the house where the shooting was done was incompetent. It was hearsay testimony. He did not testify to it as a fact, but as having been told him by another. He did not know even by whom it was said to have been picked up. He did not profess even to know it. This was material, as it was brought out to support the theory that the defendant had a gun that carried that kind of a shell, a No. 12 Winchester shell. There was no evidence that he had a gun that carried that sort of a shell. There was evidence that his kinsman, Smith, had a No. 12 repeating Winchester shotgun, and that defendant stayed at Smith’s house that night, but there was no proof that defendant had- it at any time. What effect this testimony may have had on the jury it is impossible for us to tell. The state insisted on it as competent, and the prosecuting attorney must have believed that it was material, and it was allowed improperly over the objection of the defendant.
The testimony is meager and weak on the whole ease. For this error the judgment must be reversed, and the canse remanded for a new trial.
Instruction numbered 3 given to the jury over the defendant’s objection, and to which he saved exceptions, is defective. It might be construed to assume the killing was proved to have been done by the defendant. Two of the judges think it is fatally defective in substance, and two think it only defective in form, and that, being defective in form only, a general objection to it was not sufficient, but that there should have been a special exception, calling attention of the court to the defect, that he might have thereupon corrected it; that it was unfair to the court to lay in ambush, as it were, and say nothing about an error which the court would probably have corrected, if his attention had been called to it, and wait to spring the objection to it for the first time in this court. As to this, see the following cases in this court: St. Louis, I. M. & S. Ry. Co. v. Pritchett, 66 Ark., 46; Williams v. State, 66 Ark. 264.
For the error indicated in allowing the testimony of Stringfellow as to the shell, the judgment is reversed, and the cause is remanded for a new trial.
Wood, J., did not participate.
Bunn, O. J., dissents. | [
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Bunn, C. J.
The plaintiff, John B. Bogenschultz, was the owner of the lands in controversy by purchase from the federal government, and for which he had received his patent, dated August 18, 1891. Being indebted to the defendant William O’Toole in the sum of $200, and O’Toole agreeing to furnish him $150' worth of supplies for the year in addition to said indebtedness, John Bogenschultz (his wife, Mary E. Bogenschultz, joining with him in the relinquishment of her dower rights) .executed his.deed, in the form of an absolute deed, to the lands in controversy, for the consideration of $350, dated 14th March, 1894, and recorded 18th April, 1894. This deed was given as a correction of an original deed, dated 23d October, 1893, in which there was a misdescription of the land.
On the 27th day of May, 1895, the said O’Toole, being indebted to Wertheimer-Swarts Shoe Company, executed to S. W. Woods, trustee, to secure two notes, evidencing $233.56, his deed of trust conveying said lands for that purpose. The deed of trust was subsequently foreclosed, and the lands sold by decree in chancery, and at the sale J. J. Wertheimer, one of the defendants herein, became the purchaser. Bogenschultz and wife have always held possession since their purchase from the United States.
The plaintiffs contend that their deed, although absolute in form, was in fact a mortgage to secure the indebtedness of $350 owing at the time and to be owing; the same being the amount of the consideration named in' the deed. On the other hand, O’Toole claims that it was a deed made in consummation of an absolute sale of the property, but that he had agreed with the plaintiffs at the time that they would be privileged to redeem the land by paying said amount, or words to that effect. So they do not materially differ as to the facts, but differ only in their conclusions upon the facts. No time was set, however, when he might so redeem. From the testimony in the case, we are of opinion that their understanding and agreement at the time made the deed in fact a mortgage to secure an indebtedness which was named as the consideration of the deed. O’Toole could convey nothing more than he had to a third party having notice of the rights of the plaintiffs, or who was in possession of knowledge sufficient to put him on reasonable inquiry as to the same. The mortgage was made by O’Toole to S. W. Woods as trustee for the benefit of Wertheimer-Swarts Shoe ■Company, and at the instance of Woods acting as the agent of said company. There is some conflict in the testimony of Bogensehultz and Woods as to whether or not Bogenschultz informed Woods as to the true nature of his transaction with O’Toole before the mortgage was executed, but there is none as to the nature of this information, as it was given after the execution of the mortgage ; nor is there any controversy as to the fact that Bogenschultz, although no party to the foreclosure suit, appeared on the day fixed for the sale, and forbade the same, setting up his claim. In view of the fact that the mortgage was given to secure an antecedent debt, and that Wertheimer-Swarts Shoe Company could not be regarded as an innocent purchaser for value, and in view of the facts in evidence, and that Bogenschultz seemed to have lost no opportunity to assert his claim to the property, and that he always held possession without question, we are of opinion that the Wertheimer-Swarts Shoe Company and J. J. Wertheimer, the purchaser, were all affected with the notice of his claim, and that the foreclosure suit, to which he was not a party, and the sale thereunder, could not affect his rights, and that O’Toole could convey no other right (that of a mortgagee) to a third party (Wertheimer-Swarts Shoe Company) than that he himself had, and that the purchaser at the foreclosure sale, which was forbidden by Bogenschultz, was bound to take notice of his claim, if he, indeed, had not already been affected with such notice.
The decree of the court was as follows, to-wit: “It is therefore considered, ordered and decreed by the court that the plaintiff’s bill be, and the same is hereby, dismissed, and the title to said land be, and the same is, decreed in the defendant, J. J. Wertheimer, and that the defendant do have and recover of and from the plaintiff all of their costs in and about this cause expended,, and that B. F. Fell be allowed for his (fee) as attorney for nonresident defendants, and the same be taxed as costs in this suit.” Appeal was prayed and granted. In our view of the case, as expressed above, this decree was erroneous. It does not appear from the evidence that Bogenschultz ever paid the $350 to O'Toole, or to anyone else; and that for that reason the mortgage from him to O'Toole is still unsettled, so far as the evidence in this ease shows, although this finding is only intended for the case as it is-here considered. It is true plaintiff exhibit with their complaint a receipt for the $350, but that receipt does not necessarily mean that the same was actually paid otherwise than by the sale of the property to O'Toole for that price. But the transaction was not a sale, as contended by plaintiffs themselves. The decree, therefore, should have been to the effect that the deed from Bogenschultz and wife to O’Toole, although absolute in form, was in fact a mortgage, and that the subsequent mortgage of the lands by O'Toole to the Shoe Company could not affect the rights of the plaintiffs as mortgagors, for O'Toole could only convey, in the mortgage he made, the interest he had as a mortgagee from the plaintiffs; and the same is to be said of the sale of the second mortgage and the purchase at the same.
The case, however, does not authorize the granting of the prayer to the bill, — to remove cloud from plaintiffs’ title, and to annul all proceedings to foreclosure, and the sale and deed made thereunder. The bill is dismissed without prejudice; the plaintiffs to pay the costs in the court below, and the defendant to pay the costs of this appeal. | [
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Battle, J.
A. F. Shapleigh Hardware Company instituted an action against W. Y. Hamilton. The complaint is as follows:
“The plaintiff states that it is a corporation, organized and doing business under the laws of Missouri, and that defendant was a merchant at Clarksville, Arkansas, and traded with the plaintiff,, and during the year 1895 purchased goods of the plaintiff, through one W. J. Binley, and that, by a combination between the said Binley and the defendant, a large quantity of the plaintiff's goods, was shipped to and received by the said W. V. Hamilton, at Clarksville, Arkansas, and were by him converted to his own use.; that the same was done with the intent, on the part of the said Binley and the defendant, to defraud, cheat and swindle the plaintiff. Plaintiff says that the same was accomplished through a system of false invoices, whereby a great portion of the goods were never charged to the said defendant, and whereby other portions of the goods were charged at prices greatly below their real value and prices. The plaintiff files herewith a statement of the transaction between the said W. Y. Hamilton, through the said Binley, with the plaintiff, which shows the amount of goods received by him and the value thereof, what portions of the same were not charged at all, and what portions were charged, but at prices below their value, which is marked “Exhibit A,” and made a part of this complaint. The plaintiff states that the statement consists of four bills: One March 19, 1895, showing $6.05 not charged; one August 26, 1895, showing the amount not charged $1,005.35; and one August 28, 1895, showing the amount not charged $706.90; and one October 2, 1895, showing the amount not charged $31 — making a total- of $1,749.30. Plaintiff states that by virtue of these wrongs it has been damaged in the sum of $1,749.30. Wherefore it prays judgment for its damages so sustained, and for all other and proper relief.”
Defendant’s answer to the complaint filed April 6, 1897, is as follows:
“Defendant admits that plaintiff is a corporation, organized and doing business under the laws of the state of Missouri, and that he is a merchant at Clarksville, Arkansas, and during the year 1895 purchased goods from plaintiff, through one Binley, but denies that, by any combination or collusion between said Binley and himself, any quantity of plaintiff’s goods were shipped to and received by him and converted to his own use with any intent, on defendant’s part, to defraud, cheat or swindle plaintiff, or that he had any knowledge whatever of any false or fraudulent invoices of goods bought by him, through said Binley, of plaintiff, whereby any goods were never charged to him or whereby any goods were charged at prices below their real values, or the regular prices charged for same by plaintiff. Defendant states that in all his transactions with plaintiff, through said Binley, he dealt honestly and fairly, believing that plaintiff was fully advised and informed of all particulars as to every purchase of goods by him of them, through said Binley, and that all invoices received by him from plaintiff were apparently fair and regular, and if said Binley, as the agent and salesman, at any time had any purpose to cheat, swindle or defraud plaintiff through a system of false invoices, or otherwise, defendant never at any time had any knowledge of such purpose. Defendant further states that he made full payment to plaintiff for all goods purchased of it by him, through said Binley or otherwise, and denies that by any act of his, or any business transaction Of his with plaintiff, through said Binley or otherwise, plaintiff has suffered any wrongs, or has been damaged in the sum of $1,749.30, or in any sum whatever, or that he is indebted to plaintiff in any sum whatever; and he prays that plaintiff recover nothing in this suit, and that he have judgment against plaintiff for all costs in this behalf expended.”
On December 9, 1897, plaintiff asked and obtained leave to amend its complaint, and accordingly amended it as follows:
“The plaintiff, by way of amendment to its original complaint filed herein, states that, in addition to the amount of goods received by the defendant in manner and form as stated in the original complaint, he procured and received from the plaintiff two other bills of goods which were 'never entered upon the plaintiff’s books nor paid for by the defendant, and which are not embraced in the statement of goods so received, filed as “Exhibit A” to the original complaint, which said goods he received on the 26th and 28th of August and October 2, 1895, and it files herewith itemized statements of the goóds so received or shipped on said days and not embraced in the statement filed with the original complaint, marked “Exhibits B,” “O,” and “D,” which said goods were of the value of $919.33. Whereupon plaintiff says that, by means of the wrongs mentioned in its original and this, its amended, complaint, it has sustained damages in the sum of $2,799.33. Whereupon it prays judgment against said defendant for said sum and for all other and further proper relief.”
The issues in the case were tried by a jury; and the plaintiff adduced evidence tending to prove the allegations of its complaint; and the defendant, in his behalf, produced evidence tending to prove the statements contained in his answer, and that $1,331.50 af the purchase money were paid by him for the goods to the traveling salesman and agent of plaintiff the day after they were ordered and before delivery.
At the request of the plaintiff the court instructed the jury in part as follows :
“2. If, from the evidence, you believe there was a combination or conspiracy between the defendant and Binley, as alleged in the complaint, to defraud or cheat the plaintiff in the sale of the goods made to him by Binley, then he, the defendant, should be made to account for and pay for the goods obtained their fair value, and vour verdict should be the sum of their value, with interest at 6 per cent, from the date of maturity of the debt, less the amount shown to have been paid.”
And refused to instruct, at its request, as follows: “If, however, from the evidence, you believe there was no conspiracy between the defendant and Binley, and that the defendant, in making the purchases, dealt fairly and honestly, without any knowledge of the purpose of Binley to cheat and defraud the plaintiff, if he had such purpose, through a system of false invoices or otherwise, as he alleges in his answer, then the defendant should be made to account and pay for the goods at the prices for which he bought them; and if the evidence discloses that the goods have been fully paid for by the defendant to plaintiff, your verdict should be for him; but if not, your verdict should be for the plaintiff for the amount not paid, with interest thereon at 6 per cent, from date of purchase.”
Other instructions were given at the request of plaintiff, and others were asked by it and refused by the court, which were substantially included in those given.
The following was given, at the request of the defendant, over the objection of the plaintiff:
“11. Fraud is never presumed, but must be affirmatively proved. The law presumes that all men act fairly and honestly, that their dealings are in good faith and without intention- to wrong, cheat or defraud others; and when a transaction called in question is equally capable of two constructions, one that is fair and honest and one that is dishonest, then the law is that the fair and honest construction must prevail, and the transaction called in question must be presumed to be honest and fair.”
The defendant recovered judgment, and the plaintiff appealed.
This is an action ex delicto. It is based upon the theory that the appellee, through a combination and conspiracy with one Binley, wrongfully obtained the goods of appellant, and converted them to his own use, to the damage of appellant in the sum of $3,799.33. It is a denial of the existence of any contract by which the appellant sold the goods to the appellee, and is a repudiation of the undertaking by which Binley, as its agent, undertook to transfer the goods to appellee, upon the ground that it was a scheme to cheat and defraud appellant, and to wrongfully convert its goods, without paying therefor a just and reasonable compensation.
In the instructions asked for by the appellant, which are ■copied in this opinion, one of which was given and the other re fused, the appellant sought to recover damages caused by á tort and a sum of money due upon contract. This cannot be done, for the instructions rest upon theories which are inconsistent. The theory of each denies the right to recover upon the theory of the other, and the two cannot co-exist.
In Fluty v. School District, 49 Ark. 94, it is said: “Under the Code practice, a plaintiff may have any relief which the proof shows he is entitled to, provided it be consistent with the case made by his complaint, and be included in the issue that was tried. By this action the school district seeks to recover damages for the breach of the contract. It therefore affirms that there was a contract, and that it was binding. Now, when it turns out that there was no valid contract, the plaintiff- cannot claim the damages awarded for the violation of the supposed contract, because it might have rescinded or disregarded that contract and have recovered a similar sum in an action for money had and received. This relief was inconsistent with the remedy adopted.”
In Barnes v. Quigley, 59 N. Y. 267, the court says: “The complaint is for fraud, and not upon contract. Whether the facts stated constitute a cause of action is not material. The whole framework is in fraud, and the cause of action, as set forth, is based upon the false and fraudulent representation of defendant, by which the plaintiff was induced to surrender up to defendant his promissory note, held and owned by the plaintiff, for an insufficient consideration, an amount considerably less than its face, by reason whereof, as alleged, the plaintiff has been deceived and defrauded out of the sum of $582.70, and has sustained damages to that amount. The theory of the plaintiff at the commencement of the action, and the foundation of his claim as formally made iu his complaint, was that a surrender of the note upon an agreed sum, less than the amount actually due in satisfaction of the full sum, was equivalent to a release under seal, and effectually discharged 'the debt. Tn that view he could only recover by impeaching the release and discharge for fraud, and he framed his complaint to meet the ease in that form. * * * We are not to speculate upon the question whether the surrender of the note did discharge the obligation. The plaintiff assumed that it did, and brought his suit to recover for the fraud by which the discharge was procured. It was error in the court to change the form of the action, by striking out or treating as surplusage the principal allegations — those •that give form to the action- — because, perchance, there may be facts stated by way of inducement spelled out which would, when put in proper form, have sustained an action in assumpsit. The defendant was called upon to answer the allegations of fraud, and not to resist a claim to recover in assumpsit. * * * The plaintiff was not, under the complaint, entitled to a verdict and judgment as in an action upon the note. * * * While the Code is liberal in disregarding technical defects and omissions in pleading, and in allowing amendments, it does not permit a cause of action to be changed, either because the plaintiff fails to prove the facts necessary to sustain it, or because he has mistaken his remedy, and the force and effect of the allegations of his complaint.” To the same effect, see Carson v. Cummings, 69 Mo. 325; Clements v. Yeates, 69 Mo. 623; Degraw v. Elmore, 50 N. Y. 1; Ross v. Mather, 51 N. Y. 108.
In Pomeroy’s Code Eemedies it is said: “By far the most important distinction directly connected with this doctrine is that which subsists between causes of action ex contractu and those ex delicto. It is settled, by an almost unanimous series of decisions in various, states, that if a complaint or petition in terms alleges a cause of action ex delicto, for fraud, conversion, or any other kind of tort, and the proof establishes a breach of contract, express or implied, no recovery can be had, and the action must be dismissed, even though by disregarding the averments of tort, and treating them as surplusage, there might be left remaining the necessary and sufficient allegations, if they stood alone, to show a liability upon the contract.” Pomeroy, Code Eemedies (3d Ed.), § 558, and cases cited.
The court did not err in refusing to give the instruction asked by the appellant. A party cannot sue in tort and recover in contract or assumpsit.
The instruction which says, “when a transaction called in question is equally capable of two constructions, one that is fair and honest and one that is dishonest, then the law is that the fair and honest construction must prevail, and the transaction called in question must be presumed to be honest and fair,” should not have been given. It was calculated to induce the jury to disregard the preponderance of evidence, in the event they found that it showed that the transaction was dishonest, and there was evidence to the contrary. Under the evidence in the case, it was misleading and prejudicial.
Eeversed and remanded for a new trial. | [
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Riddick, J.,
(after stating the facts.) This is an appeal from a judgment rendered in a case where a resident of the city of Fort Smith, was prosecuted for keeping and. using a wheeled vehicle in that city without having a license therefor. The question in the case relates to the validity of the city ordinance which imposes a license tax upon residents of the city for the privilege of keeping and using wheeled vehicles upon the streets of the city. Our statute on that subject is as follows, to-wit:
“ Cities of the first class are hereby authorized to require residents of such city to pay a tax for the privilege of keeping and using wheeled vehicles, except bicycles, but such tax shall be appropriated and used exclusively for repairing and improving the streets of such city/-’ Acts of 1901, p. 113.
There can be no doubt that the language of this act is broad enough to authorize an ordinance taxing residents of the city for the privilege of keeping and using wheeled vehicles upon the streets of the city. If the act is valid, it follows that the ordinance, if properly passed, is valid unless void because it goes beyond the authority conferred by the statute. It is admitted that the ordinance was properly passed, and the most important question raised by the appeal relates to the validity of the statute upon which the ordinance is based.
The first objection urged against the statute is that it attempts to authorize double taxation. It is said that, as the defendant Had already paid the general state and city taxes on his buggy and wagon, the attempt to make him pay a license fee for the privilege of using them is really an attempt to levy an additional tax upon his wagon and buggy. Counsel say that a tax on the use of an article is a tax on the article itself. While this may be true of a piano, bedstead, or cooking stove, the use of which involves no injury or detriment to the public or its property, as to wheeled vehicles it is different, for they are made to be used upon roads and streets. The streets belong to the public, and are under the control of the legislature, whose province it is to enact laws for their improvement and repair. The chief necessity for keeping-improved streets is that they may be used for the passage of wheeled vehicles, and the wear of the streets caused by the passage of such vehicles over them makes necessary constant and expensive repairs. For this reason, no doubt, the legislature considered it to be equitable and just that owners of such vehicles should, in addition to the general tax upon their property, pay something for the privilege of using the streets as driveways, the amount paid to go towards keeping the streets in good repair. This is' what the legislature attempted to do.
The act, we think, plainly shows that there was no intention to authorize a tax upon vehicles or other property. It authorizes only a tax upon the privilege of keeping and using vehicles upon the streets of the city, and it requires that this tax shall be used exclusively for repairing and improving the streets of the city.
A resident of the city may keep and use at his place in the country as many vehicles as he pleases, but he is subject to no tax, under this statute, unless he uses them on the streets of the city. He can keep and use vehicles anywhere in the world, except on the streets of the city of his residence, and he is not liable to the tax. The license fee imposed is, then, not a tax upon property, but is in the nature of a toll for the use of the improved streets. In other words, it is the privilege of using vehicles on the improved streets, and not the vehicle itself, that is taxed. We are therefore of the opinion that the statute is not subject to the criticism that it authorizes double taxation, and the contention of the defendant on that point must be overruled.
Having reached the conclusion that this ordinance does not attempt to tax property but to tax a privilege, it follows that the provisions of our constitution requiring that all property “shall be taxed according to its value,” and in such manner as to make the same equal and uniform throughout the state, do not apply, for they refer to taxes upon property only. Little Rock v. Prather, 46 Ark. 479; Baker v. State, 44 Ark. 134; Washington v. State, 13 ib. 752.
The next question presented is whether the legislature has the power to authorize cities to impose a tax upon the privilege of driving vehicles upon the public streets. The contention on this point is that a resident of a city has a right to drive upon the public streets;, and that the right to do so is not a privilege that can be taxed. It is no doubt true that the city could not impose a tax upon the privilege of using the streets for driving vehicles upon them without legislative permission to do so. The right to drive on the public streets, could not be treated as a privilege but for the act of the legislature making it one. But the streets belong to the public, and are under the control of the legislature. Elliot on Roads (2d Ed.), § 21. It is within the power of the legislature not only to make needful regulations concerning the use of the public roads and streets, but also, to provide means by which they may be improved and kept in repair. In order to effect that purpose, the legislature has, in effect, declared the use of the streets by wheeled vehicles to be a privilege, and has authorized the city to tax the privilege. We know of no limitation on the power of the legislature that prevents it from passing such an act, and thus authorizing the imposition of a reasonable tax for that purpose. “ Everything,” says Judge Cooley, “to which the legislative power extends may be the subject of taxation, whether it be person or property, or possession, franchise, or privilege, or occupation, or right. Nothing but express constitutional limitation upon legislative authority can exclude anything to which the authority extends from the grasp of the taxing power, if the legislature in its discretion shall at any time select it for revenue purposes.” Cooley; Tax. (2d Ed.), p. 5. Again, he says: “The power to impose taxes is one so unlimited in force and so searching in extent that the courts scarcely venture to declare that it is subject to any restrictions whatever, except such as rest in the discretion of the authority which exercises it. It reaches to every trade or occupation; to every object of industry, use, or enjoyment; to every species of possession; and it imposes a burden which, in case of failure to discharge it, may be followed by seizure and sale or confiscation of property.” Cooley, Const. Lim. (6th Ed.), 587.
These statements of the law by the learned author are well supported by decisions of our highest courts. McCulloch v. Maryland, 4 Wheat. (U. S.), 316, 418; Kirtland v. Hotchkiss, 100 U. S. 491; Youngblood v. Sexton, 32 Mich. 406.
The subject-matter of this statute comes, we think, within the general lawmaking power of the legislature, and, if there be any limitation forbidding the exercise of such power in that respect, it must be found in the constitution. But there is none. Our constitution specially provides that the legislature shall have power to tax privileges in such manner as may be deemed proper. It also authorizes the legislature to delegate the taxing power to towns and cities' of the state to the extent' necessary for their “existence, maintenance and well-being.” Const. 1874, art. 2, § 23; also art. 16, § 5. And it has been established by the decisions of this court that the legislature may delegate to towns and cities the power to tax occupations. Little Rock v. Prather, 46 Ark. 479.
If, notwithstanding the fact that a merchant has paid taxes on all his property, including his stock of goods, the state may yet authorize the city to compel him to pay an additional tax for the privilege of carrying on his business, why may not the state authorize the city to collect a reasonable tax in the nature of a toll for the use of its streets ? It wrould seem that the tax for the use of the streets is more equitable and just than the occupation tax. The goods of the merchant are in his own store. In pursuing his business he is not infringing upon the rights or injuring the property of either the public or its citizens. But the use of the public streets by driving vehicles upon them does w-ear them, and in the end calls for repairs and additional outlay on the part of the public. The improvement of the streets confers upon the class taxed, that is to say, upon those who keep and use vehicles, a special benefit, so that it is right that they should pay a greater proportion of the taxes required to keep them in repair than those who do not use the streets in that way. In other words, to quote the language of a Missouri court, it is just and proper that “those who mainly wear out the streets should mainly pay for keeping them in repair.” St. Louis v. Green, 7 Mo. App. 477.
We are therefore inclined to the opinion that this is a just and equitable statute. But, whatever may be our views about the expediency of the act, it must be sustained on the ground that it comes within the sovereign powers of the legislature, and because we find nothing in the constitution that forbids the exercise of such power. Similar statutes have been sustained in other states. St. Louis v. Green, 7 Mo. App. 474; St. Louis v. Green, 70 Mo. 562; Mason v. Cumberland, 92 Md. 451; Tomlinson v. Indianapolis, 144 Ind. 142; Frommer v. Richmond, 31 Gratt. (Va.), 646 See also Little Rock v. Prather, 46 Ark. 479.
But it is said that, conceding that the legislature had the power to permit cities to levy a toll for the use of the streets, it should be imposed equally upon all who use the streets, and that this act is void for the reason that it discriminates in favor of those who dwell outside of the city, and permits the tax to be levied upon residents only.
It is doubtless true that the legislature could not arbitrarily select certain citizens upon whom to impose the tax, while exempting others in like situation. But the rule of equality only requires that the tax shall be collected impartially of all persons in similar circumstances; and this statute applies equally to all persons of the class taxed. As a class, residents of the city use the streets more, and are more benefited by having them kept in good repair, than those who do not live in the city. It is true that nonresidents of the city also use the streets with their wagons and other vehicles, and it may be true that certain of them use the streets as much or more than certain of the residents of the city, but, as a class, they do not use the streets as much as residents of the city, and this furnishes a reasonable basis for the distinction made in the act between the two classes. The requirement of the statute that the tax must be imposed on residents of the city only is but an adoption by the legislature of the common policy of making each community keep up its own highways. This does not discriminate unjustly in favor of those who live beyond the city limits, for they have to keep other highways which the people of the city may in turn use free of charge. For this reason we think that it was within the discretionary powers of the legislature to make this distinction, and that it does not invalidate the act. After a full consideration of the questions presented we are of the opinion that the enactment of this statute was a valid exercise of legislative power. With the wisdom or expediency of it, as before stated, we have nothing to do. If it should prove to be unsatisfactory, there is still a remedy. The legislature can repeal the statute, or the city council may repeal the ordinance, but the courts cannot do so.
Having reached the conclusion that the statute is valid upon which the ordinance is based, there remains for consideration certain objections to the ordinance which it is contended are not authorized by the statute. First, it is said that the ordinance is invalid because it requires the payment of the license tax in gold and silver or United States currency. Now, this license tax is for a special purpose, and the law requires that the proceeds thereof shall be used for the repair and improvement of the streets exclusively. For this reason there may be room for doubt as to whether it could be paid by warrants of the city drawn on the general fund. But, if this provision of the ordinance was void, it would not annul the whole ordinance. If it be invalid, it can be disregarded. Conceding that this provision of the ordinance requiring the tax to be paid in gold, silver or currency to be void, defendant should have tendered the warrants if he desired to make the payment with city warrants, and demanded a license. He is prosecuted for keeping and using a vehicle in the city without having a license therefor. He had no license, and had made no offer of money or scrip to procure one. We therefore think the defense made on this point is not tenable.
The same thing may be said of the provision making a distinction in rates in favor of persons keeping and using more than five buggies. If we strike out that portion of the ordinance, the material portion of it stands, and this case would not be affected. For this reason it is not necessary to determine those questions in this case. It is not claimed that the amount of the license fee imposed by the ordinance is unreasonable, and it follows from what we have said that in our opinion the circuit court erred in its declaration of law, and in its judgment discharging the defendant. The judgment is therefore reversed, and the cause remanded for a new trial. | [
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Hughes, J.
This is a suit in ejectment for the possession of land described in the complaint, upon which the plaintiff held a mortgage executed by the defendant and his wife to secure a note for $375, which they had given Samuel M. Jarvis, trustee for the Jarvis-Conklin Mortgage Trust Company, with power in said trustee upon default to sell and convey said land, and, in case of his absence from the state of Arkansas or refusal to act, to appoint some one to act in his place and stead, and in conformity with said power he appointed George S. Evans to act for him. The plaintiff alleges that it became the owner of said land by purchase from the Western Investment Company, which became the owner of the same by purchase at the foreclosure sale under said mortgage made by said George S. Evans, substituted trustee as aforesaid.
Defendants in answer deny plaintiff’s ownership; deny that the Western Investment Company became the owner of said land by purchase at trustee’s sale; deny that George S. Evans sold said land as substituted trustee in the power of sale in the mortgage; deny that they were indebted to the Jarvis-Conklin Mortgage Trust Company; plead usury; and pray judgment.
The court, upon the showing made, transferred the cause to equity, over the objection and exception of the appellee, and proceeded to hear the ease on the qustion of usury, and found and decreed that the contract set up, and sought to be enforced, was usurious and void, from which decree the North American Trust Company appealed, and appellee, having excepted to the court’s action in transferring the cause to equity, prayed a cross appeal.
The proof shows that George S. Evans, substituted trustee, was not present at the sale under the mortgage, but that he was some 18 miles away, and that he did not make the sale, but that it was made by G. M. Grandstaff, sheriff. The power to make the sale was personal to Evans, and could not be delegated to another. “ Delegatus non potest delegare.” Therefore the sale was void, and no title passed by virtue of it. Stallings v. Thomas, 55 Ark. 327.
There was no ground stated or shown for transferring the cause to equity. The suit was in ejectment, at law, and, as we have seen, the alleged sale of the land by the substituted trustee, Evans, was void, and passed no title. The judgment should have been for the appellee at law. We have therefore concluded to affirm the judgment, as a judgment at law.
But, inasmuch as the appellant may have right to proceed in equity, this judgment is without prejudice to his right to do so, if he so elect.
Affirmed as stated above. | [
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Bunn, C. J.
This is a proceeding commenced by H. P. Gorman, administrator in succession to James Evans, first administrator of H. Evans, in the probate court of St. Francis county, on the 15th day of January, 1900, by filing a petition to fix another day for the sale of the lands of the estate of said H. Evans, deceased, to pay the debts thereof. The appellants, Mary E. Jackson, and the other heirs at law of H. Evans, on leave asked and obtained, were made parties defendant to this petition; and thereupon they demurred to the petition, and, their demurrer being overruled, filed their answer, to which answer the petitioner interposed his demurrer, which was sustained. The defendants appealed to the circuit court of St. Francis county, and therein filed their amended answer and cross bill, and asked that the cause be transferred to the chancery court of the district. The petitioner interposed his demurrer to this amended answer and cross bill, and resisted the motion to transfer. The demurrer of the petitioner was sustained by the court, and the motion to transfer overruled, and the defendants appealed to this court.
The chancery courts are in no sense appellate coiirts in this state, for there are no courts inferior to them which have chancery jurisdiction. In this ease it was sought to invoke a jurisdiction on appeal which can only act by original bill, or in cases where the code provides for a transfer of cases commenced on the law side of the circuit court by mistake to the proper docket or forum. To transfer a ease on appeal, where the appellate court tries de novo, is to change the cause of action by amendment from what it was in the court of original jurisdiction to a new and different action, Avhieh AAre think cannot be done. Therefore there Avas no error in the refusal by the circuit court to transfer.
The amended ansAver and cross bill is mainly an attack upon the validity of the orders of the probate court allowing claims against the estate under the administration of James Evans, now also deceased, and made years ago. These alloAvances are in the nature of judgments, and after the expiration of the term are not Avithin the control of the probate court. It IoIIoavs that to attack them in the probate court would be in violation of all rules on the subject. The circuit court on appeal can have no other issues before it than had the probate court from which the appeal is taken. These judgments of the probate court, moreover, were final, after the expiration of the term at Avhieh they had been rendered, and could not be reopened by the probate court, and could only be called in question by appeal, or by original bill in chancery, on the allegation of fraud, accident, or mistake. Clark v. Shelton, 16 Ark. 474; Dooley v. Dooley, 14 Ark. 122; West v. Waddill, 33 Ark. 575; Rogers v. Wilson, 13 Ark. 507; Carter v. Engles, 35 Ark. 205.
The other paragraphs of the amended answer and cross bill constitute an attack upon the manner of obtaining the order of sale July 21, 1897, in this, that the petitioner did not make the showing required by statute to obtain the order. The probate court had acted, and, presumptively, upon the proper showing-made, and the term had passed without objection raised; and the conclusion is that everything was properly done. Besides, if it be at all necessary to so state, the record does not show that there was a substantial failure on the part of the petitioner to comply with the statute.
TJpon the whole case, the decree is affirmed.
Riddick, J., did not participate. | [
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Riddick, J.,
(after stating the facts.) This is an action brought by certain creditors of A. L. Dirst to foreclose a trust deed upon 160 acres of land, executed by Dirst and his wife to secure the payments of notes given by him to plaintiffs, and also to set aside and declare void a previous mortgage executed by Dirst and his wife to Margaret S. Williams upon the same land.
Plaintiffs contended that, as the land mortgaged was the homestead of Dirst and his wife, the mortgage to Mrs. Williams was invalid, because the wife did not join in the execution and acknowledgment of the same as required by the statute. But the mortgage on its face appears to be the joint deed of A. L. Dirst and J. W. Dirst, his wife, the names of both of them appearing in the body of the deed as grantors. It is true that the certificate showing the acknowledgment of the deed on the part of the wife was defective in that it did not show that she acknowledged the execution of the deed, but only that she acknowledged that she had signed and sealed a relinquishment of dower. This defect in the acknowledgment was, however, cured by the subsequent act of March 8, 1895. Plaintiffs say that this act was evidently in tended to cure defects in the certificate of acknowledgment resulting from clerical oversight and omissions of the officer taking the same, and that it does not apply here for the reason that there is no proof to show such a defect or omission. But this same argument was made in the recent case of Williamson v. Lazarus, 66 Ark. 226, and overruled, on the authority of the decision in Johnson v. Parker, 51 Ark. 419. In the latter case Chief Justice Cock-rill, who delivered the opinion of the court, said that instances of obvious omissions of words from certificates of acknowledgments may have given rise to the act in question, but he said that the terms of the act “are comprehensive, and enunciate a general rule applicable to all eases in which the acknowledgment is insufficient to give full legal effect to the terms of the conveyance.” These cases are conclusive of the question here, and show that the ruling of the circuit judge on this point was correct.
The next question as to whether the trust deed executed by Dirst to Floyd to secure the debts due from him to the plaintiffs in this action was void by reason of the fact that Dirst was insane at the time of its execution is largely a question of fact, the legal questions involved being well settled. It is unnecessary to set out the testimony in the record bearing on this point in full. It shows clearly that Dirst, the grantor in the trust deed, was partially insane, both before and after it was executed. He was subject to insane delusions on certain subjects. The presence of this form of insanity in Dirst became first distinctly noticeable in the spring of 1896, some two or three months before the trust deed was executed-The following circumstances first attracted attention to his malady: Dirst was the owner of a shepherd dog, to which he seemed much attached, but about the time referred to, without any sufficient reason, he became possessed of the idea that the dog was mad, and killed it. The next day he killed a chicken cock belonging to him, and, upon being asked why he did so, replied that “it was mad, and had been chasing him around, and that he was not going to be killed by a ten-eent rooster.” A physician was called in, and found Dirst laboring under great mental excitement, and possessed with the delusion that his wife was insane. He said to the physician: “There is nothing the matter with me, but my wife is crazy.” “I concluded,” said the doctor, “that he was a monomaniac on the subject of his wife’s insanity.” Ten or twelve days later the physician saw him again, and found him still laboring under the same nervous derangement, but not to sucli an extent as-before. Dirst at this time was engaged in the business of a nurseryman, and was also the proprietor of a country newspaper. Though at times afflicted in this way, he continued to look after his business affairs to a limited extent for over a year after the trust deed was executed. But the delusions continued. At times he believed that certain of his former neighbors who had died were not in fact dead, and asserted that they had been buried alive to fool him. He often asserted that events known to have occurred in the neighborhood were only myths. To one of his sons he said on one occasion that the Mountain Echo, the Baxter County Citizen and the Harrison Times were only myths; that no such papers were published, but that a few sample copies had been sent out to fool the people. Haunted at times by these delusions, with signs and symptoms of insanity increasing and accumulating against him, it was nearly three years after the execution of the trust deed before Dirst was finally adjudged to be insane by the county court, and sent to the state asylum for the insane.
The evidence, as we have before stated, makes it very plain that Dirst was afflicted with some form of insanity, but we think it is equally plain that he was only partially insane, and that on some subjects he was rational. This is shown by the testimony of the witnesses introduced to prove his insanity. “On some subjects,” said one of them, “he seemed sane, and on others he seemed wild. Railroads and minerals seemed to be his hobby. He seemed crazy on those subjects, but on fruit culture and some other subjects he seemed rational.” Two of his sons, who were of age, deposed as witnesses for the defendants to acts of insanity on his part, but both admitted on cross-examination that he was rational on some subjects. “It was owing to the subject of conversation,” said one of them. “There were some subjects on which he was rational at all times.” Even the testimony of his wife, one of the defendants, shows that he ivas only partially insane. “He seemed,” she said, “rational on some subjects, and irrational on others. As long as we talked on agricultural subjects or mineral outcrops, he seemed rational, but when we talked on the subject of railroads or his neighbors he seemed irrational, and would indulge in wild and unreasonable statements.”
The fact that he was only partially insane, and that there were intervals when his'mind was rational, is also shown by the fact that nearly a year after the deed of trust was executed he was still engaged in his nursery business, and in taking orders for the sale of his fruit trees. It is no doubt true that an insane man might, if allowed to do so, undertake to continue the business that he had followed previous to his insanity. The insane physician might endeavor to heal the sick, the insane minister might still try to preach, and so might the insane nurseryman endeavor to carry on his business when his mind was no longer able to comprehend it but this is not a case of that kind. The testimony of every witness here is that on questions concerning fruit trees and the business of nurseryman Dirst was always sane. It was on other and different subjects that his mind was unbalanced.
Coming now to his conduct on the day the trust deed was. executed, the evidence shows that on that day two attorneys, J. C. Floyd and S. W. Woods, who between them represented these creditors, and had the claims for collection, called to see him about the payment thereof. They found Dirst and his young son in the field hoeing corn, lie seemed to be in good health and perfectly rational. When they explained to him the object of their visit, Dirst expressed a desire to pay off the indebtedness, and said that he would do so in the future, but that he had no money at. that time. Upon their suggesting that he could secure the claims by giving a mortgage, Dirst explained to them that his place had been sold under execution, and that he had not redeemed it. The attorneys then told him that, if he would secure the amount of the execution sale along with the other debts, the lands could be released or redeemed from the execution sale. He replied that he was willing to do so if they would give him time to pay the debts, and upon their offering to give him eighteen months’ extension he said that the agreement was satisfactory, and he would go to the house and consult his wife about the matter. They then went to the house,, and after consulting with his wife it was agreed by them to execute the trust deed on the terms proposed. The attorneys took dinner with him at his house, and while waiting for dinner to be prepared Dirst helped one of them to feed their horses, and afterwards showed them his garden and some of his fruit trees, and talked with them of the qualities of the different fruits, and on other-subjects of that kind in a rational and sane manner. It was just after the nominations for president -had been .made by the two-leading parties, and Dirst discussed with them the merits of the respective candidates and platforms. Being in favor of what was nailed the “gold standard,” Dirst took that side of the question, and, the witnesses say, supported it by a very intelligent argument, and seemed in perfect control of himself and his mental faculties. 'The trust deed was prepared in accordance with the- agreement of the parties, and after dinner Dirst and his wife and the two attorneys went together to Dodd City, a neighboring village, and the deed was there acknowledged before a notary public. During all the time they were with Dirst, these two- witnesses say they saw nothing to indicate mental derangement on his part. He appeared to be perfectly rational on all subjects, and they said that the idea that he was mentally unbalanced in any way never once ■occurred to them, as his conduct through the whole matter was that of an intelligent and rational man.
These witnesses must, of course, be treated as to some extent interested, but their statements are not contradicted, but are supported by the testimony of the notary public before whom the deed was acknowledged, and by that of another witness, who saw Dirst on that occasion and heard him talk. It is even corroborated by the testimony of Mrs. Dirst, who, though she was permitted to testify for the defendants, did not contradict these witnesses as to the conduct of her husband on that day, and the only reason she gave for believing that he was insane at the time he executed the deed was that when she came to the house he told her that the attorneys wanted her to sign the trust deed, and said to her that she ■“had better do so,” without consulting or explaining the matter to her as he usually did. But men often act in that way, and this did not show that he was insane or ignorant of the nature .and consequences of the deed he was about to make. Her testimony shows that at the time she was asked to sign the deed by her husband she understood fully why the trust deed was desired and the history and nature of the claims to be secured. It was therefore apparent that no explanation was needed. Her husband probably knew this, and for that reason made none.
The story of the conversation between herself and husband ■on the night following the execution of the deed in which he told her not to cry, that Gray, the officer before whom the deed was acknowledged, “was neither a notary or justice of the peace, and had no authority to take the acknowledgment, and it didn’t amount to •anything,— cannot be considered, for it was a communication from a husband to a wife and was clearly incompetent.
Granting that, as Mrs. Dirst was a party to this suit, and had an interest in the land as a homestead, she could testify in her own behalf, yet still it was not competent for her to testify to communications made by her husband to her as evidence to avoid his deed. Sand. & H. Dig., § 2916. Disregarding such communications, proved by her, we think the evidence shows that Dirst at the time-he made the deed was sane, or at least not insane on any subject, connected therewith.
Counsel for plaintiffs say in their brief that the very fact: that he was willing to incumber his homestead with such a lien is evidence of insanity on his part. But it is a common occurrence-for persons in debt to mortgage their homestead in order to secure the same. A considerable percentage of the homesteads in this city are mortgaged; but, while this indicates that the owners thereof' are in debt, it is no evidence of insanity on their part. Besides, it is shown in this case that Dirst, several years before he was-affected with insanity, mortgaged this same homestead to Margaret Williams for a larger amount than that secured by this trust deed. This mortgage to Mrs. Williams has not been paid, and in the end it may absorb the homestead, and leave little or nothing for the satisfaction of the claims secured by the trust deed. The existence of this prior mortgage on his homestead may account for the willingness of Dirst to give the second one, especially when by giving it he obtained a year and a half extension on his debt. The attorneys who testified said that Dirst expressed a desire to pay the debt, but insisted upon a liberal extension of time in which to pay as the condition upon which he would execute the trust deed. They were compelled to give the extension in order .to get the security, and this indicates that Dirst understood the nature and consequences of the contract he was making.
Now, as before stated, the law bearing on this question is not difficult to state. While it may have formerly been the doctrine of' the courts that an insane person could do no legal- or binding act, that dogma has been long overthrown. The law now recognizes the fact, well established by the investigation and observation of medical experts, that there may be derangement of mind as to particular .subjects, and yet capacity to comprehend and intelligently act on other subjects. It follows, therefore, that the proof which is designed to invalidate a man’s deed or contract on the ground of' insanity must show inability to exercise a reasonable judgment in regard to the matter involved in, the conveyance. The fact that the grantor was a monomaniac, and possessed of insane delusions on some subjects not connected with the conveyance or the matters out of which it grew, is not sufficient to invalidate his deed. To have that effect, the insanity must be such as to disqualify him from intelligently comprehending -and acting upon the business ■affairs out of which the conveyance grew, and to prevent him from understanding the nature and consequences of his act. Bus-well, Insanity, § 270; Burgess v. Pollock, 53 Iowa, 273, 5 N. W. 179, 36 Am. Rep. 218; Elwood v. O’Brien, 105 Iowa, 239; Concord v. Rumney, 45 N H. 428; Aldrich v. Bailey, 132 N Y. 85; Kingsbury v. Whitaker, 32 La. An. 1055, 36 Am. Rep. 278; Banks v. Goodfellow, L. R. 5 Q. B. 549; Bishop on Contracts (Enlarged Ed.), 962, 964; 16 Am. & Eng. Enc. Law (2d Ed.), 624, and cases cited.
Now, applying these rules to the case in hand, we think.the finding must be in favor of the plaintiffs. The burden was on ■defendants to show that the trust deed was void. But, taking all the evidence together, we think it is reasonably clear that they did not make out a ease sufficient to avoid the deed. On the' contrarjr, we believe the decided weight of evidence shows that Dirst, in executing the trust deed, understood very well the nature and consequences of his act. If there had been any fraud or unfairness in the transaction, a different question would have been presented. But the debts secured by the trust deeds were valid and subsisting claims against Dirst. As he owed these debts, and was unable to pay them, it was only natural that he should wish, by securing them, to obtain time in which to pay them. His action in this regard displayed, no't insanity, but honesty and good business intelligence. On the whole case, we think the court erred in declaring the trust deed and notes void.. The judgment in that respect is therefore reversed, with an order to enter a decree in favor of plaintiffs foreclosing the trust deed, but subject to the prior lien of Margaret Williams. The decree as to her mortgage is affirmed. | [
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Riddick, J.,
(after stating the facts.) This is a proceeding to review the findings and orders of the judge of the circuit court denying the petition of R. C. Brady asking to be released from further custody and remanding him to the custody of the sheriff of Craighead county.
Brady was convicted on several different indictments for selling liquor without license. He was pardoned, and the fines against him remitted, on condition that he leave the state and not return. He returned to the state, and was again pardoned on condition that he would not again sell liquor without license, but in a short time violated the condition of his second pardon. The governor of the state thereupon issued his proclamation, declaring that the pardon was null and void by reason of the violation of the condition upon which it was granted, and that the judgments against Brady were in full force and effect.
Counsel for Brady say that the governor “had no more authority to revoke a pardon than a scavenger,” and that his proclamation was without effect. It may be true that the governor had no power to revoke his pardon, but, the pardon having been granted on condition that Brady would not again sell liquor without license, and he having violated that condition, and having pleaded guilty to a charge of selling liquor without license, and the judgment of a court of competent jurisdiction having been rendered against him convicting him of that crime, and it being thus, in effect, judicially established that Brady had, subsequent to the pardon, violated the condition upon which it was granted, the pardon by its own terms became of no effect, and did not protect Brady from the enforcement of the judgments against him. The proclamation of the governor did not revoke the pardon. It had been annulled by the act of Brad}q judicially established, and the proclamation only gave notice of that fact. It might have been more regular to have first brought Brady before the circuit court' to show cause why the judgments should not be enforced against him before proceeding to enforce them, but the failure to do so was an irregularity which furnishes no ground for his discharge, as it clearly appeared, on the trial by the circuit judge before whom Brady was brought by writ of habeas corpus, that the pardon had been annulled by his own act, that the judgments against him were in full force and effect, and that he had no cause to show against their enforcement. Sand. & H. Dig., § 3679.
The next contention is that these judgments are concurrent, and that, the defendant having been in custody the length of time required to discharge him from further imprisonment upon the judgment for the largest fine, he should be discharged from custody on all of them. It is true that, where one is convicted of two or more offenses the punishment for which is imprisonment, the judgment should direct that the imprisonment in one ease commence after the termination of it in the other, and if this is not done the terms of imprisonment may run concurrently, so that the prisoner will be entitled to his discharge on the expiration of the longest term adjudged against him. Sand. & H. Dig., § 2288. But the rule does not apply here, for the judgment against Brady was not imprisonment, but a fine of a certain amount of money, and he was placed in the custody of the sheriff, not as a punishment, but as a means of compelling him to pay the fine. Counsel for appellant have filed very interesting briefs on this point, but, though they have cited a large number of cases, they have cited no ease in which the rule for which they contend has been applied to a case where the judgments pronounced against the defendant were for fines only. Under the statutes of this state, we see no room for the argument that two or more judgments for fines can run concurrently, so that the discharge of one satisfies all. Our statute requires that defendants against whom fines are assessed as a punishment for crime shall, in default of the payment of such fines, be hired out and compelled to work for the payment of their fines under a contractor or upon the roads or other public improvements of the county at 75 cents a day until the fines and costs are discharged. The statute provides that, if the prisoner is delivered to a contractor for the discharge of his fine, the contractor shall keep and work such prisoner for such time as will "discharge all fines and costs for which he may be committed,” at the rate of 75 cents a day. Sand & H. Dig., § 921; Acts 1899, p. 181.
It will be seen from these and other statutes that the imprisonment which follows the failure to pay the fine assessed by the court is not now a form of punishment substituted for the fine, but is a means adopted to compel the payment of the fine. If a prisoner is fined $1,000, it is immaterial whether that is one fine for one offense, or is the aggregate of several fines for distinct offenses, for in either case, if he fails to pay the fine, and is committed to jail in default thereof, the statute directs that he shall be held, and compelled to discharge the fine or fines by working for a contractor or upon the public works of the county until all fines and costs adjudged against him are discharged. When he has worked or been imprisoned the number of days which at 75 cents a day equals the aggregate sum of the fines and costs imposed, he is entitled to his discharge from imprisonment, but not before.
But it is said that the statute provides that, if the punishment of an offense be a fine, the judgment shall specify the extent of the imprisonment which shall be imposed upon the defendant in the event he fails to pay the fine. Sand. & H. Dig., § 2289. As the judgment against Brady simply remanded him to the custody of the sheriff until the fine and costs were paid, without specifying the extent of his imprisonment, defendant contends that- they do not conform to the statutes, and that he should therefore be discharged. But the section of the statute referred to was taken from a statute of 1875, enacted before the passage of the acts relating to the hiring of county convicts. If a judgment for a fine was not paid under the law as it stood then, the prisoner could not be hired out, but was kept in jail for a certain time, which the statute provided should not exceed one day for each dollar of the tine. Act March 24, 1875. The law fixed the maximum time during which the person upon whom a fine was imposed could be confined in jail upon a failure to pay the fine, though it was discretionary with the trial court to name a shorter time, and for that reason the law required that in such eases the extent of the time should be named in the judgment. But afterwards statutes were passed relating to the hiring of county convicts who failed or refused to pay fines imposed upon them, which made it impossible to set out in the judgment the extent of the punishment that ■would result from a failure to pay the fine. For instance, the act of 1881 required that the prisoner should labor two days for each day lost on account of sickness, and the act of 1883 gave the prisoner no credit for time lost through sickness or otherwise, “when not due to the weather -or fault of the contractor.” Acts 1881, p. 150; Acts 1883, p. 126.
Under these acts it was manifestly impossible for the extent of th-s imprisonment to be specified in the judgment, for the duration of it depended upon uncertain and future contingencies, over which the court had no control, and they in effect repealed the law requiring the time to be named in the judgment.
Though frequently amended, the law seems to have remained substantially in this condition on this point until the act of 1899, above referred to. This act contained the following provision, to-wit: “The convict defendant shall receive 75 cents per day, including Sunday, for each day he is hired out to such contractor, in excess of any liability for care or sickness.” Acts 1899, p. 181.
Now, we are not very certain what was nrnant by this provision. We are not sure whether the prisoner was to be allowed 75 cents for each day he was hired out, regardless of whether he was sick or not. Nor is it plain whether the act intended to allow the prisoner 75 cents a day during his imprisonment, or only during time he was hired out. But we shall resolve these doubts in favor of the defendant. As the act gives the county judge the right, when he is unable to make a satisfactory contract for the hire of the prisoners, to work them on the public roads, bridges, levees or other county improvements; as the county judge has the full power either to hire out or work the prisoners, we think, if they are allowed to remain idle in jail, they should still receive 75 cents for each clay they remain in jail, or, rather, that under this act they should not be imprisoned longer than one day for each 75 cents of the fine and costs, though, unless the prisoner works/ the fine will not be paid, and the judgment therefor may still he enforced against his property, if he has any. In the interest of certaidy, it would no doubt be well for judgments of conviction to specify that the imprisonment of the defendant should not exceed one day for each 75 cents of the fine and costs, but the failure to do so does not render the judgment void, for the statute names the limit, and makes the extent of the imprisonment certain. Even if the failure to specify this limit in the judgment was an error, which we doubt, it would furnish no ground for the discharge of the prisoner. 1 Bish. New Or. Proc. § 1410.
We wish in passing to call attention to the uncertain and confused state of the law relating to the imprisonment and hiring of county convicts. Numerous statutes have been passed affecting this subject within the last twenty-five years which, while not expressly, repealing former laws, are more or less inconsistent therewith. To ascertain the law in reference to this question, one must now look through numerous statutes, which are confusing, and suggest forcibly the need of a statute covering the whole question and repealing former statutes, thus relieving the subject from the doubt and uncertainty which now surrounds it.
Again, it is said that the aggregate amount of the fines against the defendant is $3,200, and that with the costs the total sum adjudged against him is about $4,000; that he is without means to pay this sum, and if he is compelled to serve it out under contractors and in jail, it will be about twelve years before he can be released. For this reason, defendant contends that the punishment inflicted is cruel and unusual and forbidden by our constitution. But constitutional provisions against cruel and unusual punishment are directed, not so much against the amount or duration, as against the character of the punishment. The imposition of a fine and imprisonment upon failure to pay the fine is certainly not an unusual punishment, and, though our constitution forbids the imposition of excessive fines, as well as the infliction of cruel and unusual punishments, yet, to justify the courts in interfering and setting aside a judgment for a fine authorized by a statute, the fine imposed must be so excessive and unusual and so disproportionate to the offense committed as to shock public senti ment and violate the judgment of reasonable people concerning what is right and proper under the circumstances. 8 Am. & Eng. Enc. Law (2d Ed.), 440; State v. Hodgson, 66 Vt. 134; Ex parte Swann, 96 Mo. 44.
Now, the statutes under which the fines were imposed in this case permitted a fine as high as $500, and made each day’s selling a separate offense. The defendant was fined in twenty different cases; the highest fine imposed for one offense was $400, and the lowest fine was $100. The fines in the twenty cases average $150 a ease, and amounted in all to $3,200. In determining whether these fines were excessive within the meaning of our constitutional prohibition against excessive fines, we must consider the offense for which they were imposed and the nature of the illegal business in which the defendant was engaged. It is a matter of common knowledge that the retailing of liquors in large towns is a profitable business. In many of the large towns and county seats of the state local option or prohibition laws are in force which forbid the granting of license to sell liquors in such towns. Now, unless a considerable fine can be assessed against those who violate such laws and sell without license, it is evident that those laws will not stop the illegal sale of liquor, for those who violate the law can afford to pay the fines out of the profits of the business . The only effect of the law will be to compel the payment of fines in the place of a license, and to force the business into the hands of a more lawless and irresponsible set of men. It would be equally futile to impose a large fine unless there were adequate means of enforcing its payment, for men who engage in such illegal traffic are generally either destitute of much property, or they have it concealed so that an ordinary execution, without the right to take the body of the defendant, would generally be of no avail. The amount of the fines imposed in this case, and the imprisonment which must follow unless the fines are paid, are no doubt unusual in a certain sense, but the reason therefor is not found in the undue severity and cruelty of the statute under which the punishment was imposed, but in the number of effenses committed by the defendant.
If this were a case where the defendant had through mistake violated the law, or if the circumstances were such as to show that the fines imposed were grossly excessive and disproportionate to the offense, there might be ground for interference, but nothing of the kind is shown. On the contrary, the circumstances, as they are presented in the record, show that there was no disposition on the part of the officers of the law to treat defendant with undue severity. Although defendant was first tried and convicted in seven different cases for selling liquor without license, the highest fine imposed by the law was not assessed in either of the cases. And when, afterwards, he entered pleas of guilty in thirteen other cases for the same offense, the judgments in these eases were suspended until the next term, — no doubt as a favor to the defendant. Soon after these fines were imposed, he was pardoned on condition that he leave the state and not return. He disregarded the- condition, and was again relieved by a pardon on condition that he refrain from selling liquor ■ without license. The purpose of these conditions imposed in the pardon was to prevent a repetition of the offense by the defendant in this state, but he paid no attention to either of the conditions, and within less than a year was again arrested for selling liquor in the same county and town, and pleaded guilty, and was fined for having twice violated the law against selling liquor without license.
So far from any undue severity being shown the defendant, it seems that the leniency exercised towards him by suspension of judgments and frequent pardons had produced in his mind a belief that these judgments would not be enforced against him, even though he continued to violate the conditions of his pardon. The severity of the punishment imposed in the cases against defendant is referable neither to the harshness of the law nor the manner of its enforcement, but altogether to the persistency with which he has violated the law, and we find no ground for interference with the judgments rendered against him. His petition is therefore dismissed.
It seems that the lowest fine permitted by the act is $200, and the highest $500, and the fines imposed were lower than the act authorized, though the defendant cannot complain as to that. Sand. & H. Dig., § 4862. | [
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Wood, J.,
(after stating the facts.) First. The appellee introduced evidence tending to prove that he and Abe Bloch entered into a verbal contract by which appellee was to perform extra services as superintendent on the building in Cleveland, Ohio, and that he was to receive pay for such services from the appellant by a credit on his account with appellant for merchandise. This alleged agreement, it is claimed, was made at Cleveland, Ohio, sometime after the execution of the written contracts. In the fourth instruction the jury are permitted to find “a reasonable amount for extra services, if any, as superintendent,” etc. The only counterclaim for superintendence set up in the answer is that arising out of the written contract, under which it is alleged all of the goods were purchased. This contract provides for superintendence. The appellee did not ask to amend his answer to conform to the proof. We cannot treat it as amended after verdict, for appellant objected to the evidence and to the instruction. In the absence of appropriate allegations setting up a counterclaim for superintendence under the alleged verbal contract, the court erred in admitting proof or instructing the jury upon the subject.
But, even if we concede that the sweeping allegations of the answer are sufficient to set up a counterclaim against appellant under an alleged verbal contract for superintendence, still, in our opinion, the proof utterly fails to establish the liability of appellant for such superintendence. If all the goods were purchased of appellant under the written contract, as expressly alleged, then there was no consideration to appellant for a verbal contract by which it agreed to pay for the alleged extra services of the appellee as superintendent on a building belonging to the Bloch Realty Company. Such an agreement, if made, was voluntary, a mere nudum, pactum,. No counterclaim could be based on it.
Furthermore, Abe Bloch denies, in his evidence, such contract While there was evidence tending to show that Abe Bloch did enter into such a contract, and that he had authority to make contracts for the appellant for the sale of goods and to settle its accounts, there is no proof whatever that he had any authority to make a verbal contract with the appellee on behalf of appellant binding appellant to pay for services rendered the Bloch Realty Company, an independent corporation. The making of such contract was not within the apparent scope of his authority. This disposes of the counterclaim for superintendency under the verbal contract. That was a matter between appellee and the Bloch Bealty Company, or Abe Bloch. It was no concern of appellant.
Second. The counterclaim under the written contracts or contract was established. The contracts should be read together, and considered as one and entire, with the two companies on one side and Metzger on the other. The appellant signed contract “B,” which had for its sole consideration, so far as Metzger was concerned, contract “A.” Considered as one contract, the companies covenant that they will pay Metzger a certain price for doing the carpenter work, superintending, etc., on a certain building in Cleveland, Ohio, and that they will furnish him certain goods, etc., upon certain conditions. Metzger, on his part, covenants that he will do the work and buy the goods upon the terms and conditions agreed upon. The two companies are composed entirely of B Lochs, and all these Blochs, except one, were largely interested in both companies. While nominally and technically they were separate corporations, yet, so far as these contracts were concerned, in their manner of dealing with Metzger, they were, to use the language of Abe Bloch, “the same people.” The jury might have found that Abe Bloch, who was president of botlr companies, and who negotiated the contracts with Metzger, intended that Metzger should understand that the interests of the companies in the contracts were mutual, and that both should be responsible to him for fulfillment. It is immaterial whether the legal status of appellant under the evidence was that of principal or guarantor. In the form in which the suit was brought, the result to appellant would be the same. There was proof to support either view. Considerations in a contract are necessarily reciprocal. The consideration to Metzger was the money he was to receive for -his work, superintendence, etc., on the building in Cleveland, Ohio. He agreed, in consideration of this, that he would buy goods of appellant. The agreement was made primarily, it seems, with the Bealty Company, that he should buy the goods. Neither the Bealty Company nor appellant, as beneficiary of that provision, could enforce the contract in that particular without complying with the cpvenant to pay him for the work, etc., on the building. They could not compel him to pay for goods bought, so long as they refused to pay him for the house he„ built. There was no provision in contract “A” as to how, when, or to whom the balance that might be clue him when he finished the work on May 1 should be paid. These important matters were therefore susceptible of oral proof. The provision in contract “B” was that all goods purchased by Metzger before May 1, 1897, should be paid for on that day; those purchased after to be paid for every sixty days. But there was nothing in the contract binding the appellant to sell, or Metzger to buy, goods after the work was finished, May 1,— the time for the termination of the building contract. These are most cogent facts in corroboration of the testimony of the- Metzgers that the understanding with Abe Bloch was that the appellant should receive its pay for goods out of what was due Metzger for work on building, — that one account should offset the other, etc., as set up in the answer. There are many other circumstances, but wre will not further detail evidence or elaborate reasons.
We do not conceive that the questions of ultra .vires and of accord executory have any place in the case. The appellant could not receive benefits under the contract, and then repudiate its obligations.
Our conclusion of the whole matter, from a review of the evidence in the transcript, is that appellant was liable on the counterclaim of $730 set up in the answer.
Except for the errors indicated, the instructions of the court were correct.
Third. The Realty Company was a proper party defendant, if the appellee had desired to make it so. But the appellant had the right to maintain the suit without joining the Realty Company.
Fourth. By deducting from the appellant’s account of $1,632.22 the sum $730 as of date August 3, 1898, — the date from which appellant assents that interest may be computed on the balance, — we allow all that appellee claimed or could have recovered below under the counterclaim set up under the written contracts. The judgment will therefore be reversed, and judgment entered here for appellant for $902.22 with interest on the same at 6 per cent, per annum from August 3, 1898. | [
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Wood, J.
The court gave the following: “7. If the plaintiff shows by a preponderance of evidence that he was injured by the operation of defendant’s train, it is presumed that the injury was negligent, and the burden in such case is upon defendant to show that the injury was not the result of negligence.”
Section 6349 of Sandels & Hill’s Digest provides: “All railroads which are now or may be hereafter built and operated in whole or in part in this state shall be responsible for all damages to persons and property done or caused by the running of trains in this state.”
The statute, being in derogation of common right, should be .strictly construed. Watkins v. Griffith, 59 Ark. 356. The general rule requires the one who alleges negligence to prove it. This .statute imposes upon the railroads a burden contrary to the general rule. We should not extend it beyond the cases where it obviously ■■applies, giving the words their plain natural meaning. The legislature intended that in all cases where damages resulted to persons •or property by the “running” of trains negligence should be presumed. The damages here referred to mean those produced by moving trains. There is no reason for supposing that the legislature ■used the word “running” in any other than its narrow and restricted sense of causing trains to be moved or propelled.
The rule has its origin in the inability of the plaintiff to prove his injuries to have been the result of negligence in cases where the facts lie -peculiarly within the knowledge of those who produce the injury. That may be said to be the case where the injury is caused by the actual running of the train. Those entrusted with the work of propulsion alone can know, as a general thing, what they have or have not done in that regard, while the injured party or others can only surmise or infer as to what the trainmen actually did know by the circumstances and resultant conditions in any given case. If the word “running” referred to the operation of trains in its broad and general sense, the reason which is supposed to be the origin of the statute would cease. For almost innumerable injuries resulting in damage might occur in the operation of trains where a knowledge of the facts would be equally accessible to both parties, and not be peculiarly with the one or the other. This is not the case, as we have seen, where the proximate cause of the injury is the actual running or propulsion of the train. This work is in the hands of experts, who alone are peculiarly cognizant of the facts connected with such work. The statute is not applicable to eases of the kind under consideration, and the instruction should not have been given. It was a question for the jury, under the evidence, as to whether or not the injury was the result of negligence, or a pure accident without negligence. The instruction was therefore prejudicial.
The question of the offer of settlement will not likely arise again, and we need not pass upon the instruction asked by the appellant and refused on that point. For the error indicated, reverse the judgment, and remand the cause for new trial. | [
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OPINION OF
THE COURT.
This case comes up by appeal from the circuit court of Pope county, and the only ground relied upon for reversing the judgment is, that the court below erred in sustaining the demurrer to a replication filed by the plaintiff. The pleadings in this cause show that [John] Hart, the plaintiff, brought an action of covenant on a writing obligatory, by which, in his declaration, he alleges that [Isaiah D.] Rose, the defendant, covenanted and bound himself, on his part, to build a flat-boat, of a certain description, and have the same completed on, or before the 5th of October, 1832, and,that he, the said plaintiff, on his part, was bound to find and furnish to said Rose the plank for the building said boat, to be delivered at the lower plank landing on Shoal creek, or near the river above James Patterson’s field. He then avers, that within a convenient and proper time after making said agreement, mentioned in said writing obligatory, he did, according to the tenor and effect thereof, furnish to the said Rose the plank necessary for the building of said boat, at the place or places aforesaid, mentioned in said writing obligatory, according to the ten- or and effect thereof. The declaration concludes by protesting that the said Rose did not perform fully and keep any thing in said writing obligatory contained, &c. The defendant plead performance, to which there was a demurrer filed and overruled by the court The replication to the plea of performance was also demurred to by the defendant, which demurrer was sustained, upon the ground that the declaration was defective. It has been urged in argument that the court cannot go back to the declaration on a demurrer to the replication. This position, we think, cannot be sustained. The rule is, that on a demurrer the court ycill consider the whole record, and give judgment for the party who appears to be entitled to it. 4 East, 502. In the course of the pleadings every demurrer puts the sufficiency of all the previous pleadings in issue. Steph. Pl. 162; 1 Saund. PI. & Ev. 432. It was not necessary, therefore, in the case before us, that the replication should have been bad, as a defect in the declaration was sufficient to justify the court in sustaining the demurrer. The stipulation on the part of the plaintiff to furnish the plank necessary for building the boat, at one or the other of two landings, must be regarded as a condition precedent, without the performance of which, no liability would be incurred by Rose on the agreement. The averments, therefore, ought to have been certain and positive as to the place where the plank was furnished, as it constituted a material and traversable fact. In the averment, as made, no issue could have been safely taken by the defendant. The subsequent pleadings in the cause did not cure this defect in the declaration, and the circuit court very properly, in our opinion, sustained the demurrer to the replication, if there had been no other cause. It may be proper to state, that the replication itself is bad in several respects. First, on the ground that it is double; second, that the obligation as to the sufficiency of plank furnished, is not positive and certain; and lastly, that the conclusion is to the country, where it should have been with a verification. We are not prepared to say that the plea of performance is good. We do not deem .it necessary, however, to express any opinion on that subject. Judgment affirmed. | [
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OPINION OF
THE COURT.
This is an action of debt, brought by the appellee against the appellants, upon the following obligation: “Six months after date, we, or either of us, promise to pay to Benjamin Desha, or order, twenty-one hundred and eighty-one dollars and eighty-six cents, for value received; to bear interest from the date, at the rate of ten per cent per annum. "Witness our hands and seals this twenty-first day of May, 1832. (Signed) Jos. Henderson (seal). R. C. Byrd (seal).” The judgment of the circuit court was rendered in favor of the appellee for the sum- of two thousand and ninety-five dollars and seventy; nine cents debt; two hundred dollars thereof having been previously paid, and thirteen dollars and thirty-eight cents interest, and thirty-four dollars and twelve cents damages, together with interest on two thousand ninety^five dollars and seventy-nine cents, at the rate of ten per cent, per annum till paid, and the costs of the suit, which has been brought up to this court by appeal. Numerous objections have been taken by the appellants to the proceedings in the court below, some of which we will proceed to notice. First, it is contended that it is not averred in the declaration that the defendants affixed their scrolls to the writing declared on. By inspecting the declaration, it will be seen that the averment is sufficiently made. Another ground relied upon for reversing the judgment is, that it is rendered for interest at the rate of ten per cent, per annum till paid. By the terms of the contract in this case, ten per cent, per annum was agreed to be paid, and, by referring to our statute on the subject of interest, it will be seen that ten per centum may be lawfully reserved. Geyer, Dig. 240. Judgment affirmed. | [
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OPINION OF THE COURT. The record presents but a single question, which appears from the bill of exceptions to the opinion of the circuit court, rejecting a bill of sale offered in evidence by the plaintiff, on the ground that its execution was not sufficiently proved.' Morgan Cryer and James Cummins were subscribing witnesses to the bill of sale offered as evidence. Morgan Cryer being examined as a witness, stated “that his name, as subscribed as a witness to the bill of sale, was his handwriting, and that the name of James Cum-mins, the other subscribing witness, was the handwriting of said Cummins; that said James Cummins was in Texas about a month ago, having removed there several years ago; that affiant had no recollection of said bill of sale except the identity of his handwriting.” Whereupon the court decided that the execution of the bill of sale had not been sufficiently proved, and refused to permit the same to be read to the jury. We think this decision was erroneous. The supreme court of the United States in the case of Lessee of Clarke v. Courtney, 5 Pet. [30 U. S.] 319, said: “In the ordinary course of legal proceedings, instruments under seal, purporting to be executed in the presence of a witness, must be proved by the testimony of the subscribing witness, or his absence sufficiently accounted for. When he is dead or cannot be found, or is without the jurisdiction, or is otherwise incapable of being produced, the next best secondary evidence is the proof of his handwriting, and that, when proved, affords prima’ facie evidence of a due execution of the instrument.”
In the case before the court, there were two subscribing witnesses to the bill of sale offered in evidence, one of whom stated upon his examination that his name as subscribed as a witness, was in his handwriting; that the name of the other subscribing witness, James Cummins, was the handwriting of Cummins, and that Cummins was in Texas, beyond the jurisdiction of the court. The non-production of the witness who was beyond the jurisdiction being satisfactorily accounted for, proof of his handwriting was properly received, and such proof, taken in connection with the testimony of Morgan Cryer the other subscribing witness to the instrument, afforded, in our opinion, prima facie evidence of the due execution of the bill of sale offered in evidence, and the same ought to have been read to the jury. Morgan Cryer stating that he had no recollection of the bill of sale, except the identity of his handwriting, presents, it is true, some difficulty; but still we think there was prima facie evidence of the due execution of the bill of sale, so far, at least, as to authorize it to be given in evidence to the jury.
Judgment reversed. | [
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WAYMOND M. BROWN, Judge
11 Appellant appeals from the circuit court’s termination of his parental rights to G.E., born 9/12/14. On appeal, appellant argues that the circuit court erred in terminating his parental rights to G.E. because his rights were “nonexisting.” We reverse.
On September 26, 2014, appellee Arkansas Department of Human Services (DHS) filed a petition for emergency custody and dependency-neglect of G.E. due to her birth to an incarcerated mother. Brandon Edgar was listed as G.E.’s putative father in the petition. The circuit court entered an order granting emergency custody on September 29, 2014. Appellant was not listed as a party in the petition or the order.
Following a hearing on September 30, 2014, the circuit court entered a probable-cause order on the same date noting that the parties had stipulated that probable cause existed [ 2at the time of removal and continued to exist. A determination of Edgar’s paternity was reserved therein for adjudication and he was listed in the order as G.E.’s “LEGAL/PUTATIVE FATHER[.]” Appellant still was not listed as a party.
An agreed adjudication order was entered on November 10,2014. In that order, Edgar’s status was changed to that of the putative father only, and appellant was added as G.E.’s “LEGAL FATHER[.]” DHS was ordered “to amend the pleadings to make Mr. Howerton a party to this matter.”
A review order was entered on November 25, 2014, after a hearing on the same date. It stated that appellant was incarcerated in Tucker, Arkansas. Both appellant and Edgar were ordered to comply with the case plan and the orders of the circuit court.
DHS filed a motion to terminate reunification services to appellant on December 22, 2014. It alleged therein that appellant had subjected G.E. to aggravated circumstances where an older sibling of G.E. was subjected to sexual abuse by appellant. It also alleged that appellant had subjected G.E. to aggravated circumstances where there was little likelihood of successful reunification with appellant, who was sentenced to 360 months’ imprisonment in the Arkansas Department of Correction (ADC) for the abuse of G.E.’s siblings, a period of time which constituted a substantial period of time from G.E.’s perspective. It specifically 1 (¡alleged that the fact that appellant was a legal father, and not an apparent biological father of G.E., was a basis for termination. The circuit court noted that Edgar had not established paternity at that point.
The circuit court entered a review-and-no-reunification-services order on April 6, 2015, following a March 12, 2015 hearing. It noted that appellant was G.E.’s legal father “by virtue of his continued marriage” to G.E.’s mother and granted DHS’s no-reunification-services motion finding that G.E. had been subjected to aggravated circumstances in that there was little likelihood of successful reunification with appellant based on his thirty-year sentence for his rape conviction.
Following an October 19, 2015 hearing, a permanency-planning order was entered on January 19, 2015, authorizing a plan of adoption and a petition for termination of parental rights from DHS. Though appellant was referenced as the legal father, the circuit court stated therein that “[hjaving set the goal to be adoption, the Court finds that Brandon Edgar is indigent; the Court finds the putative parent has established significant contacts with the juvenile such that parental rights [hjave attached.” It stated that appellant “shall be removed as a party to this case as he testified today he is not the biological father of the child.” Appellant was denied any contact with G.E., and Edgar was granted supervised visitation.
|4DHS filed a petition for termination of parental rights on November 18, 2015, listing appellant as G.E.’s legal father and Edgar as her putative father. It alleged the following grounds for termination of appellant’s rights:
1. That G.E. had been adjudicated dependent-neglected and continued out of appellant’s custody for a period of twelve months and the conditions necessitating removal had not been remedied despite a meaningful effort of DHS on account of appellant’s conviction and sentence of thirty years’ imprisonment for rape;
2. That G.E. had lived outside of appellant’s home for a period of twelve months and appellant had willfully failed to provide significant meaningful support or to maintain meaningful contact with G.E. on account of appellant having been imprisoned for the duration of G.E.’s life;
3. That other factors or issues arose subsequent to the filing of the origi nal petition for dependency-neglect that demonstrate that placing G.E. in appellant’s custody is contrary to G.E.’s health, safety, or welfare and that, despite the offer of appropriate family services, appellant has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate his circumstances that prevent the placement of G.E. in his custody on account of his imprisonment for a sentence of thirty years;
4. That appellant was sentenced in a criminal proceeding for a period of time that would constitute a substantial period of G.E.’s life on account of his thirty-year prison sentence;
5. That appellant, as the presumptive legal father, was not G.E.’s biological father and her welfare could best be served by terminating appellant’s parental rights as the presumptive legal father; and
\fi. That appellant had subjected G.E. to aggravated circumstances where the circuit court determined on March 12, 2015, that there was little likelihood that services to appellant would result in successful reunification “due to Edward Howertons [sic] conviction for rape of an 11 year old victim and 8 year old victim. Both of which are [G.E.’s] siblings.” ,
The circuit court held a hearing on the petition on February 16, 2016.
At the beginning of the hearing, the following exchange ensued:
AttoRney for Mother: Your Honor, I wanted to point out one thing. I don’t know if it will make a difference in this hearing, but I found it odd, so you may too. The permanency planning order that was entered on January the 19th of 2006, paragraph 8, specifically stated and found that Mr. How-erton shall be removed as a party to this case. As he testified today, he is not the biological father of the child. So I am not understanding exactly why Mr. Howerton, at this point not being a party in this matter, would be entitled to pursue any rights whatsoever or to defend himself against termination of parental rights to which he does not have.
Circuit Court: Well, I vaguely remember the hearing, and I think that the Court would have been correct to make a ruling that based upon his testimony and the time of his incarceration and the lack of access for the purposes of intercourse and conception that he couldn’t be the biological father supporting his testimony that, in fact, he was not the biological father.
U don’t have a problem with all that. I don’t remember saying—and I may have very well done that he should be removed as a party to the case. I think that would have if I did that and its [sic] in the order and I signed it, so I guess I did. I think that’s an error because he’s a legal father, and those legal rights exist, and something has to happen with regard to those legal rights. So I believe—unless some of you have a—want to straighten out my thinking that that’s why he’s here today in spite of what that order may say.
AttoRney for Mother: Well, it was my understanding that Mr. Edgar was found to be the legal father. And to me, I—
CirCuit Court: He was found to be the biological father.
Attorney Ad Litem: Correct.
Attorney for Mother: Not ever made to be the legal father—
Circuit Court: I didn’t find that he was. Now, if there’s an order that said so, there was some—in my review, there was some—and I didn’t focus on that particular issue, but my recollection is, from my review, that he said he was father. There was some testimony about access. And he eventually got around to doing some DNA testing that said he was the biological father or maybe his name’s on the birth certificate. I don’t remember that part. I may have it confused with another case. But I didn’t see that we got to the part where we established and maybe we did.
Attorney for Mother: I’ll look for that.
Attorney for DHS: Your Honor, the Department has submitted to the Court before a paternity test showing that Brandon Edgar was the biological father.
Circuit Court: Yeah. I’ve got that in my notes. I mean, 117remember making that finding. I just didn’t know what we—
Attorney for DHS: I think the hangup was at the time of the—
CirCuit Court: Do you have a birth certificate with his name on it?
Attorney for DHS: No, Your Honor, I don’t.
Circuit Court: Because that would—
Attorney for DHS: I’m being told we submitted it. But I cannot remember doing so.
Circuit Court: Okay. Well, if there’s a birth certificate with his name on it, then by operation of law, he has rights that the Court has to deal with today. You think it’s been offered as an exhibit already? Even if I didn’t make a finding of paternity—if y’all can help me, just take a minute and figure that out. Birth certificate of the juvenile naming Brandon Edgar as the biological father. Paternity established 10/19/15 is my note.
Testimony at the hearing was as follows.
Holly Johnson, family services worker for DHS, testified in pertinent part that appellant is the legal father of G.E. due to her mother being married to appellant at the time G.E. was conceived. However, Edgar was the putative father who was at that time the biological father.
In the midst of Johnson’s testimony, appellant’s attorney questioned why the court was “terminating on [his] client” when Edgar was the legal father and the biological father, to which the attorney for DHS responded that it was because appellant was married to G.E.’s mother when G.E. was conceived, making him a legal father. Appellant’s attorney sought clarification on whether the court had just “made a finding that the other gentlemen was | «legal dad” to which the circuit court responded “[w]hat I did was establish paternity based upon a test and [Edgar’s] name on the birth certificate. If that means I made two legal fathers, that’s what I did. This man has legal rights because of marriage.”
Following Johnson’s testimony, appellant’s counsel moved for a directed verdict, arguing lack of sufficiency on each ground. Of pertinence to this court was his argument regarding the parent-sentenced-to-a-substantial-period-of-the-juvenile’s-life and presumptive-legal-father-not-biological-father grounds in which he argued that appellant was not a parent because the circuit court made a finding that Edgar was G.E.’s biological and legal father and G.E. “can’t have two legal fathers.” He argued that once Edgar was found to be G.E’s legal father, appellant was “divested” of any parental rights and “[had] no parental rights to be terminated.” The circuit court questioned why the parties were “going through this hearing” and why appellant’s counsel did not file a motion at the beginning to have appellant removed as a party. He responded that he was representing his client as appointed. His motion for directed verdict was denied.
Of pertinence, appellant then testified that he was not G.E.’s biological father and did not believe he could be her father because he had been incarcerated since April 6, 2012. He did not have conjugal visits with G.E.’s mother. Following appellant’s testimony, he renewed his motion for directed verdict. The motion was denied.
Appellant’s counsel then reiterated his argument stating that “[i]f Mr. Edgar has been found, factually, to be the biological father and legally to be legal father, then my client is not the legal father. I don’t think that you can have two legal fathers, so his rights shouldn’t be terminated because he has not [sic] rights to be terminated.” The circuit court responded:
| ¡¡For the record, the Court found a copy of the birth certificate which has previously been filed as an exhibit in this case. It was DHS No. 1 on September 24th, 2015, showing Brandon Edgar to be the biological father of G.E. By operation of law, that’ll make Mr. Edgar a parent to her. That does not change the legal rights that Mr. Howerton has by virtue of the marriage to the mother of the child.
The circuit court then terminated appellant’s parental rights. Its order terminating appellant’s parental rights was entered on March 28, 2016. Therein, the circuit court stated that “Edward Howerton was married to Samantha Howerton at the time of [G.E.’s] birth. It was determined by this court through evidence of a birth certificate with Brandon Edgar’s name included as father and evidence of genetic testing that Brandon Edgar is the biological father of [G.E.] ” This timely appeal followed.
This court reviews termination orders de novo. According to Arkansas Code Annotated section 9-27-303, parent means “a biological mother, an adoptive parent, or a man to whom the biological mother was married at the time of conception or birth or who has signed an acknowledgment of paternity pursuant to § 9-10-120 or who has been found by a court of competent jurisdiction to be the biological father of the juvenile[.]” We construe the statute so that no word is left void, superfluous or insignificant, and we give meaning and effect to every word in the statute, if possible. In its ordinary sense, the word lm“or” is a disjunctive particle that marks an alternative, generally corresponding to “either,” as “either this or that”; it is a connective that marks an alternative.
A plain reading of' the statute means that a parent can be biological, or by adoption, or by a man who is married to a biological mother at the time of conception or by a man who’ has signed an ac-knowledgement of paternity, or by being found by a court of competent jurisdiction to be the biological father. In this case, though initially not included, appellant was eventually added as a party and deemed G.E.’s legal father because she was conceived while appellant was married to her mother. Though Edgar was initially named a legal/putative father and then only a putative father, the circuit court eventually deemed him to be G.E.’s legal father on account of his acknowledged paternity from being listed as the legal father on G.E.’s birth certificate and on account of being found to be G.E.’s biological father through a paternity test. Accordingly, the circuit court gave G.E. two legal fathers. In reference to establishing Edgar’s paternity, it stated “If that means I made two legal fathers, that’s what I did.”
The circuit court gave no legal basis to support its finding that G.E. had or could have two legal fathers.-A review of Arkansas statutes provides no definition of a “legal father.” Likewise, a review of Arkansas law reveals no basis for a child having two legal fathers, and there is no case directly on point addressing whether a child can have more than None legal father. A review of case law from other jurisdictions shows a consensus that a child can have only one legal father. While the decisions of other states are not binding on this court, we.find such decisions to be persuasive.
Once the circuit court found that Edgar was G.E.’s legal father, it changed appellant’s status. Appellant could not -be G.E.’s legal father—presumptive or otherwise—once the circuit court found that Edgar was G.E.’s legal father. By finding Edgar to be G.E.’s legal father, the circuit court effectively divested appellant of all parental rights to G.E.; therefore, 112appellant had no rights to G.E. that the circuit court could terminate. We note that an alternative ruling would mean that if appellant were to have another child and became subject to a petition for termination of his parental rights to that child, this termination could be used to justify termination in that case. We hold that the circuit court’s ruling terminating appellant’s parental rights to G.E. was clearly erroneous because he had no rights. We revérse.
Reversed.
Whiteaker, Hixson and Hoofman, JJ., agree.
Gruber and Vaught, JJ., dissent.
.Samantha Howerton’s parental rights were terminated in the same order that terminated appellant’s rights; however, she is not a party to this appeal.
. Edgar was listed as the current legal father on the birth certificate.
. Ark. Code Ann. § 9—27—365(c)(2)(A)(iii) (Repl. 2015) (aggravated circumstances include “a child's being exploited”).
. Ark. Code Ann. § 9-27-365(c)(2)(A)(v) (aggravated circumstances include “[a] determination by the circuit judge that there is little likelihood that services to the family will result in successful reunification”). Though the little-likelihood language was listed, DHS erroneously cited to Ark. Code Ann. § 9-27-365(c)(2)(A)(iv) ("aggravated circumstances include "[a] child's being subjected to extreme or repeated cruelty or sexual abuse”).
. It also alleged that appellant had a prior involuntary termination of parental rights on July 22, 2013, but it later admitted that the previous termination applied to G.E.’s mother only and not appellant.
. The circuit court did not address the other grounds listed in DHS’s no-reunification motion.
. Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a) (Repl. 2015).
. Ark. Code Ann. § 9-27-34 l(b)(3)(B)(ii)(a).
. Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(aj.
. Ark. Code Ann. § 9-27-341(bX3)(B)(viii)(W. We note that although the criminal-proceedings language was listed, DHS erroneously cited to Ark. Code Ann. § 9—27—341 (b)(3)(B)(iii).
. Ark. Code Ann. § 9-27-341(b)(3)(B)(viiyaj.
. Ark. Code Ann. § 9-27-34l(b)(3)(B)(ix)(a)(3)(A) & (B)(i).
.DHS also sought termination of appellant’s parental rights to G.E. on the ground that he was found by a court of competent jurisdiction to have had his parental rights involuntarily terminated as to two siblings of G.E pursuant to Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(aX4). However, the ground was withdrawn at the termination hearing because the order terminating parental rights to G.E.’s siblings was "only in regard to Ms. Howerton” and "[appellant was] not the party involved.”
. Whitehead v. Ark. Dep’t of Human Servs., 2016 Ark. App. 42, at 7, 481 S.W.3d 469, 473 (citing Strickland v. Ark. Dep’t of Human Servs., 103 Ark. App. 193, 287 S.W.3d 633 (2008)).
. Ark. Code Ann. § 9-27-303(40).
. Brown v. Kelton, 2011 Ark. 93, at 5, 380 S.W.3d 361, 365 (citing Dachs v. Hendrix, 2009 Ark. 542, 354 S.W.3d 95).
. State, Dep't of Career Bduc., Div. of Rehab. Servs. v. Means, 2013 Ark. 173, at 10, 426 S.W.3d 922, 928-29 (citing Brown v. Kelton, 2011 Ark. 93, at 4-5, 380 S.W.3d 361, 364 (citing McCoy v. Walker, 317 Ark. 86, 89, 876 S.W.2d 252, 254 (1994))).
. It is noted that Arkansas Code Annotated section 9-27-303 provides a definition for "parent” and "putative father,” but no definition is provided for a "legal father.”
. N.A.H. v. S.L.S., 9 P.3d 354, 360 (Colo. 2000) ("although a child certainly can have emotional attachments to more than one father figure, she can have only one legal father”); G.F.C. v. S.G., 686 So.2d 1382, 1386 (Fla. Dist. Ct. App. 1997) ("Only one could be chosen because there is no such thing as dual fathership”); In re C.N.W., 274 Ga. 765, 560 S.E,2d 1 (2002) (a "legal father” is one who adopted a child, was married to the biological mother at the time the child was conceived, married the biological mother after the child was born and recognized the child as his own, is determined to be the father by a final paternity order, or has "legitimated” the child); In re Custody of C.C., 2013 IL App (3d) 120342, ¶ 94 & 100, 377 Ill.Dec. 351, 1 N.E.3d 1238, 1254 ("the Illinois legislature only contemplated a child having one legal father and one legal mother[,]” so "Illinois law does not authorize a child to have two legal fathers and one legal mother”); Helton v. Beaman, 304 Mich.App. 97, 106, 850 N.W.2d 515, 521 (2014) ("[a] child may have only one legal father.”); Dep’t of Soc. Servs. of State ex rel. Wright v. Byer, 2004 S.D. 41, ¶ 22, 678 N.W.2d 586, 592, on reh’g, 2005 S.D. 37, ¶ 22, 694 N.W.2d 705 (the child "can only have one father”); In re T.K.Y., 205 S.W.3d 343, 351 (Tenn. 2006) (a "legal parent” is a biological mother, a man married to a mother at the time of-the child’s conception, a man who attempted to mariy the child’s mother before the child’s birth even if the marriage was declared invalid, a man adjudicated to be the child’s legal father, or an adoptive parent.); Marriage of Matter of Morales, 968 S.W.2d 508, 511 (Tex. App. 1998) ("A child can have only one legal father.); Pearson v. Pearson, 2008 UT 24, ¶ 25, 182 P.3d 353, 357 ("a child can have only one legal father”).
. See Wright v. Ark. Dep’t of Human Servs., 2014 Ark. App. 676, at 8, 449 S.W.3d 721, 725 (where legal father’s status was changed based on an order voiding a previous order of paternity after a DNA test revealed he was not the biological father, termination was not commensurate with his status which afforded him no rights since he was not a presumptive legal father by any definition; appellant “not a proper party to proceed against with a termination-of-parental-rights action’ ’).
. See Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(fl)(41. | [
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COURTNEY HUDSON GOODSON, Associate Justice
| Appellant Brenda Hendrix, individually, and as the Special Administratrix of the Estate of Guy D. Hendrix, Deceased (the “estate”), appeals the amended judgment entered by the Saline County Circuit Court granting the motion to dismiss filed by appellee Alcoa, Inc. For reversal, the estate contends that the exclusive-remedy provision of the Arkansas Workers’ Compensation Act (the “Act”) does not bar a common-law tort action against the decedent’s employer because the Act provides no remedy for the disease that caused the decedent’s death. We accepted certification of this case from the Arkansas Court of Appeals in accordance with Arkansas Supreme Court Rule l-2(d), on the basis that the appeal presents an issue of first impression concerning a matter of substantial public interest and ^significant question of law concerning the interpretation of an act of the General Assembly. See Ark. Sup. Ct. R. 1—2(b)(1), (4) & (6). In keeping with legislative intent, we must affirm the circuit court’s decision.
The facts of this case are not disputed. The decedent, Guy D. Hendrix, worked for Alcoa from 1966 until his retirement in the fall of 1995. In June 2012, he received a diagnosis of mesothelioma, an asbestos-related cancer. In September 2012, Hendrix filed a claim against Alcoa for workers’ compensation benefits, alleging that he was exposed to asbestos during the course of his employment. On November 7, 2012, an administrative law judge found that the claim was barred under the provisions of Arkansas Code Annotated section 11—9— 702(a)(2) (Repl. 2012). This subsection of the statute provides in relevant part that
(A) A claim for compensation for disability on account of injury which is either an occupational disease or occupational infection shall be barred unless filed with the commission within two (2) years from the date of the last injurious exposure to the hazards of the disease or infection.
(B) However, a claim for disability on account of silicosis or asbestosis must be filed with the commission within one (1) year after the time of disablement, and the disablement must occur within three (3) years from the date of the last injurious exposure to the hazard of silicosis or asbestosis.
The law judge concluded that Hendrix’s claim was time-barred because it was not filed within three years of the last date of the injurious exposure. Hendrix did not appeal the law judge’s decision to the full commission.
Hendrix died in November 2013. In April 2014, the estate initiated this wrongful-death and survival action against Alcoa. Alcoa subsequently filed a motion to dismiss the estate’s amended complaint against it, asserting that the circuit court lacked jurisdiction [^because the claims fell within the exclusive-remedy provision of the Act. After a hearing, the circuit court entered an order dismissing the claims against Alcoa with prejudice. This appeal followed.
For reversal, the estate contends that the circuit court erred in dismissing its complaint against Alcoa. It asserts that a circuit court has jurisdiction to entertain a civil action against an employer when the employee has no remedy under the Act. More specifically, the estate maintains that Hendrix’s opportunity to obtain workers’ compensation benefits ceased before his claim accrued and that the Act provided no remedy for Hendrix’s occupational disease because the disease manifested after the limitations period had expired.
This case requires us to construe the exclusive-remedy provision of the Act in conjunction with section 11-9-702(a)(2)(B). The basic rule of statutory construction is to give effect to the intent of the General Assembly. Gerber Prods. Co. v. Hewitt, 2016 Ark. 222, 492 S.W.3d 856. Statutes relating to the same subject must be construed together and in harmony, if possible. Hammerhead Contracting & Dev., LLC v. Ladd, 2016 Ark. 162, 489 S.W.3d 654. It is axiomatic that this court strives to reconcile statutory provisions to make 4them consistent, harmonious, and sensible. Brock v. Townsell, 2009 Ark. 224, 309 S.W.3d 179. When interpreting the workers’ compensation statutes, we must strictly construe them. Ark. Code Ann. § 11—9—704(c)(3); Miller v. Enders, 2013 Ark. 23, 425 S.W.3d 723. “The doctrine of strict construction requires this court to use the plain meaning of the language employed.” Stewart v. Ark. Glass Container, 2010 Ark. 198, at 6, 366 S.W.3d 358, 361-62. Strict construction means narrow construction and requires that nothing be taken as intended that is not clearly expressed. Lambert v. LQ Mgmt., LLC, 2013 Ark. App. 114, 426 S.W.3d 437.
The question of the correct application and interpretation of an Arkansas statute is a question of law, which this court decides de novo. Worsham v. Bassett, 2016 Ark. 146, 489 S.W.3d 162. We are not bound by the circuit court’s decision; however, in the absence of a showing that the circuit court erred, its interpretation will be accepted as correct. McLemore v. Weiss, 2013 Ark. 161, 427 S.W.3d 56.
The exclusive-remedy provision of the Act is found at Arkansas Code Annotated section ll-9-105(a), which states in part that
(a) The rights and remedies granted to an employee subject to the provisions of this chapter, on account of injury or death, shall be exclusive of all other rights and remedies of the employee, his legal representative, dependents, next of kin, or anyone otherwise entitled to recover damages from the employer[.]
We have said that this provision clearly indicates that any claim for injury or death against an employer may only be brought under the Act, thus eliminating an employer’s tort liability. Elam v. Hartford Fire Ins. Co., 344 Ark. 555, 42 S.W.3d 443 (2001). The reason for such exclusivity is found in the general purpose behind our workers’ compensation laws, which was to change the common law by shifting the burden of all work-related injuries from individual employers and employees to the consuming public, with the concept of fault being virtually immaterial. Craven v. Fulton Sanitation Serv., Inc., 361 Ark. 390, 206 S.W.3d 842 (2005). With the passage of such statutes, employers gave up the common-law defenses of contributory negligence, fellow servant, and assumption of the risk; likewise, employees gave up the chance to recover unlimited damages in tort actions in return for certain recovery in all work-related cases. Brown v. Finney, 326 Ark. 691, 932 S.W.2d 769 (1996).
Because the exclusive-benefits provision of our compensation law favors both the employer and the employee, we have taken a narrow view of any attempt to seek damages beyond that favored, exclusive remedy. Honeysuckle v. Curtis H. Stout, Inc., 2010 Ark. 328, 368 S.W.3d 64. However, we have made exceptions where it is plain that the Act does not provide a remedy for the claim. For instance, in Travelers Insurance Co. v. Smith, 329 Ark. 336, 947 S.W.2d 382 (1997), the widow of an employee killed in a work-related accident sued the employer’s compensation carrier in the circuit court for the emotional distress caused by its mishandling of her late husband’s remains. The carrier sought a writ of prohibition in this court contending that the lawsuit was barred by the exclusive-remedy doctrine. We denied the writ and allowed the case to go forward in the circuit court, framing the issue as “whether the lack of a remedy answers the jurisdictional question.” Travelers, 329 Ark. at 343, 947 S.W.2d at 385. We held that the cause of action was premised on a nonphysical injury, which is not covered under the Act, and because the injury was beyond the scope of coverage under the Act, it was not barred by the exclusive-remedy provision.
6Next, in Davis v. Dillmeier Enterprises, Inc., 330 Ark. 545, 956 S.W.2d 155 (1997), the employee suffered a compensa-ble injury for which benefits were paid. Once she received a release from treatment, she reported for work but was promptly fired. The employee then filed suit in the circuit court asserting a cause of action for discrimination based on physical disability under the Arkansas Civil Rights Act. Citing Travelers, supra, we observed that “in determining whether an action involving a work-related injury may be filed in circuit court, an important consideration is whether the Workers’ Compensation Act provides a remedy to the plaintiff.” Davis, 330 Ark. at 554, 956 S.W.2d at 159. We concluded that the Act did not provide a remedy for an employee who is terminated from his or her job on the basis of a disability. Consequently, we held that the exclusive-remedy provision did not preclude the employee from bringing a civil-rights action in the circuit court grounded on the employer’s alleged discrimination in terminating the employee based on her permanent restrictions and impairment.
We reached a similar result in Automated Conveyor Systems, Inc. v. Hill, 362 Ark. 215, 208 S.W.3d 136 (2005). There, the employee suffered a gradual-onset injury caused by heavy lifting. He presented a claim for workers’ compensation that was denied because the Act covered only gradual-onset injuries caused by rapid and repetitive motion. The employee then sued his employer in the circuit court. When the circuit court denied the employer’s motion to dismiss based on the exclusive-remedy provision, the employer filed a petition for writ of prohibition in this court. We held that the exclusive-remedy provision did not bar the employee’s cause of action because the injury did not meet the definition of a compensable injury and thus the employee did not have a remedy under the Act.
|7We agree with the estate that the common thread running through these decisions is that an employee may bring suit against his or her employer when there is no remedy available under,the Act. Thus, the question here is whether Hendrix had a remedy pursuant to the Act.
In his treatise, Professor Larson draws a distinction “between an injury which does not come within the fundamental coverage provisions of the act, and an injury which is in itself covered but for which, under the facts of the particular case, no compensation is payable.” 9 Lex K. Larson, Larson’s Workers’ Compensation pt. 11, scope (Matthew Bender, Rev. Ed.) (June 2014). Larson further instructs that
[t]he compensation remedy is exclusive of all other remedies by the employee or his dependents against the employer and insurance carrier for the same injury, if the injury falls within the coverage formula of the act. If it does not, as in the case where occupational diseases were deemed omitted because not within the concept of accidental injury, the compensation act does not disturb any existing remedy. However, if the injury itself comes within the coverage formula, an action for damages is barred even though the particular element of damage is not compensated for, as in the case of disfigurement in some states, impotency, or pain and suffering.
Id.
Our decision in Porocel Corp. v. Circuit Court of Saline County, 2013 Ark. 172, 2013 WL 1776648, reflects these principles. In that case, the employee submitted a workers’ compensation claim alleging exposure to asbestos and silica dust that resulted in lung disease and silicosis. An administrative law judge issued an opinion denying the claim under section 11-9-702(a)(2)(B). The law judge found that although his disablement had occurred within three years of the last injurious exposure, the claim was barred because it was not filed within one year from the date of the disablement. The employee subsequently sued his employer in the circuit court, and the employer came before this court seeking a writ of prohibition after | «the circuit court denied the employer’s motion to dismiss. In support of the circuit court’s ruling, the employee argued that the running of the statute of limitations caused him to have no remedy against his employer under the Act, which rendered his disease to be one that was not covered under the Act. This court disagreed, holding that the employee had a covered injury and thus a remedy under the Act, but he failed to avail himself of the remedy when he did not file his claim within the one-year limitation period, as required by section ll-9-702(a)(2)(B).
In Porocel, we left open the question that confronts us in the present case, which is whether the Act provides a remedy for an asbestos-related claim if the time of disablement does not occur within three years of the last injurious exposure, Porocel, 2013 Ark. 172, at 6, n. 1. As we noted in that case, section ll-7-702(a)(2)(B) contains two requirements for the recovery of workers’ compensation benefits: (1) the employee’s time of disablement must have occurred within three years from the date of the last injurious exposure, and (2) the claim for compensation had to be filed within one year after the time of disablement. Because an employer’s liability under the statute is measured from the date of the employee’s last injurious exposure, the statute is accurately described as a “statute of repose” rather than a “statute of limitations.” See Rogers v. Mallory, 328 Ark. 116, 120, 941 S.W.2d 421, 423 (1997). This court has recognized that the effect of such a statute “is to cut off entirely an injured person’s right of action before it accrues, when that action does not arise until after the statutory period has elapsed.” Curry v. Thornsberry, 354 Ark. 631, 638, 128 S.W.3d 438, 441 (2003); see also Okla Homer Smith Furniture Mfg. Co. v. Larson & Wear, Inc., 278 Ark. 467, 646 S.W.2d 696 (1983). A statute of repose is a statute of duration and provides a date upon which the action no longer exists, whether it has accrued by that date or not. Ray & Sons Masonry Contractors, Inc. v. U.S. Fid. & Guar. Co., 353 Ark. 201, 114 S.W.3d 189 (2003). As we observed in Ray & Sons,
A statute of repose creates a substantive right in those protected to be free from liability after a legislatively determined period of time. Id. Statutes of limitations are motivated by considerations of fairness to defendants and are intended to encourage prompt resolution of disputes by providing a simple procedural mechanism to dispose of stale claims. Harig v. Johns-Manville Products Corp., 284 Md. 70, 75, 394 A.2d 299 (1978). Statutes of repose are based on considerations of the economic best interests of the public as a whole and are substantive grants of immunity based on a legislative balance of the respective rights of potential plaintiffs and defendants struck by determining a time limit beyond which liability no longer exists. Whiting-Turner [Contracting Co. v. Coupard], 304 Md. [340,]at 349-50, 499 A.2d 178 [ (1985) ].
Id. at 218, 114 S.W.3d at 200 (quoting First United Methodist Church of Hyattsville v. U.S. Gypsum Co., 882 F.2d 862, 866 (4th Cir. 1989)). The United States Supreme Court has described a repose provision as a “cut off’ and an absolute bar on a defendant’s temporal liability. CTS Corp. v. Waldburger, — U.S. —, 134 S.Ct. 2175, 2183, 189 L.Ed.2d 62 (2014). The Waldburger Court also noted the distinctions between statutes of limitation and statutes of repose and discussed the policy considerations that underlie each of them:
Although there is substantial overlap between the policies of the two types of statute, each has a distinct purpose and each is targeted at a different actor. Statutes of limitations require plaintiffs to pursue “diligent prosecution of known claims.” Black’s 1546. Statutes of limitations “promote justice by preventing surprises through [plaintiffs’] revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared.” Railroad Telegraphers v. Railway Express Agency, Inc., 321 U.S. 342, 348-349, 64 S.Ct. 582, 88 L.Ed. 788 (1944). Statutes of repose also encourage plaintiffs to bring actions in a timely manner, and for many of the same reasons. But the rationale has a different emphasis. Statutes of repose effect a legislative judgment that a defendant should “be free from liability after the legislatively determined period of time.” C.J.S. § 7, at 24; see also School Board of Norfolk v. United States Gypsum Co., 234 Va. 32, 37, 360 S.E.2d 325, 328 (1987) (“[Sjtatutes of repose reflect legislative decisions that as a matter of policy there should be a specific time beyond which a defendant should no longer be subjected to protracted liability” (internal quotation marks omitted)). ImLike a discharge in bankruptcy, a statute of repose can be said to provide a fresh start or freedom from liability. Indeed, the Double Jeopardy Clause has been described as “a statute of repose” because it in part embodies the idea that at some point a defendant should be able to put past events behind him. Jones v. Thomas, 491 U.S. 376, 392, 109 S.Ct. 2522, 105 L.Ed.2d 322 (1989) (SCALIA, J., dissenting).
Id. at 2183.
Based on the nature of a statute of repose, the estate asserts that because the statute extinguished Hendrix’s remedy under the Act before it accrued, the exclusive-remedy provision no longer applies and that it is free to pursue its claims in the circuit court. We are constrained to reject this argument. Our case law dictates that an employee may seek relief against an employer in the circuit court only if the Act provides no remedy for the employee’s condition. Applying that logic here, the Act in general covers occupational diseases, and it specifically provides coverage, and thus a remedy, for asbestos-related claims. See Ark. Code Ann. §§ ll-9-601(a) & (g)(1)(B) and ll-9-702(a)(2)(B). Thus, the claim falls within the coverage formula of the Act, even though Hendrix was ultimately denied recovery on the ground that the claim was time-barred under section ll-9-702(a)(2)(B). As Larson instructs, and consistent with our decision in Porocel, supra, the temporal limitation on recovery does not equate to the absence of a remedy under the Act.
According to the authorities mentioned above, as a matter of public policy, a statute of repose creates a substantive right in those protected to be free from liability after a legislatively determined period of time. Mindful that we must strictly construe the provisions of the Act, section ll-9-702(a)(2)(B) represents a policy-driven, legislative judgment to shield an employer from such claims that arise three years after the last injurious exposure. Coupled with the exclusive-remedy provision, it could not have been the intent Inof the General Assembly to absolve an employer of liability for worker’s compensation after a period of time only to subject the employer to liability in tort after that period elapses. Any contrary holding would eviscerate the protection afforded by section ll-9-702(a)(2)(B) and defeat the legislative purpose for enacting the statute of repose. Accordingly, we affirm the circuit court’s dismissal of the complaint against Alcoa.
In conclusion, the remedy afforded by the Act certainly rings hollow under the facts of this case. The result smacks of unfairness, particularly when it is well known that the disease of mesothelioma has a long latency period. However, our General Assembly has seen fit to create a statute of repose with only a three-year duration. In Porocel, supra, we also recognized that the one-year limitations period operated harshly in that case. However, we observed that any inequity must be addressed by the General Assembly and that this court cannot refuse to give effect to the statute of limitations merely because it seems to operate harshly. “Whether three years, four years or five years—or more or less—is the correct or appropriate period, should not and cannot be the concern of the judiciary.” Carter v. Hartenstein, 248 Ark. 1172, 1176, 455 S.W.2d 918, 921 (1970). We must hold true to legislative intent when interpreting and applying the statutes passed by the legislature. Any criticism of the result we are compelled to reach in this case lies at the feet of the General Assembly.
Affirmed; motion to dismiss denied.
Special Justice Kirkman T. Dougherty, joins.
Danielson, Baker, and Hart, JJ., dissent.
. The amended complaint filed by the estate includes claims against Breeding Insulation Co. and Darragh Co. The claims against these entities remain outstanding, and this appeal comes to us with a proper certificate under Rule 54(b) of the Arkansas Rules of Civil Procedure.
. During the course of the appeal, Alcoa filed a motion to dismiss. It submits that this court lacks jurisdiction because Hendrix failed to appeal to the commission the law judge's jurisdictional statement, based on the parties’ stipulation, that the "Arkansas Workers' Compensation Commission has jurisdiction of this claim.” In VanWagoner v. Beverly Enterprises, 334 Ark. 12, 970 S.W.2d 810 (1998), we held that the commission has primary and exclusive jurisdiction to decide whether an employee's injuries are covered by the Act. In this instance, and in accordance with VanWagoner and other decisions of this court, Hendrix first presented his claim before the commission. The law judge’s decision became final once it was not appealed. Ark. Code Ann. § 11—9—711(a)(1). We know of no authority, and Alcoa has cited none, that the failure to appeal that final order erects a jurisdictional barrier for proceeding in this court. Therefore, we deny the motion to dismiss.
. Our holding is consistent with the decisions of our sister states in Illinois, Iowa, and Kansas. See Folta v. Ferro Eng'g, 397 Ill.Dec. 781, 43 N.E.3d 108 (2015); Ganske v. Spahn & Rose Lumber Co., 580 N.W.2d 812 (Iowa 1998); Tomlinson v. Owens-Corning Fiberglas Corp., 244 Kan. 506, 770 P.2d 833 (1989). Only the Pennsylvania Supreme Court’s decision in Tooey v. AK Steel Corp., 623 Pa. 60, 81 A.3d 851 (2013), stands in contradiction. | [
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DAVID M. GLOVER, Judge
|, Jimmy Lee Prickett was convicted by a Drew County jury of possession of a controlled substance (methamphetamine), simultaneous possession of drugs and firearms, and possession of a firearm by certain persons with evidence obtained during a traffic stop. He was sentenced to a total of thirty years in the Arkansas Department of Correction. Prior to trial, Prickett filed a motion to suppress evidence found during the traffic stop, which was denied. On appeal, Prickett contends the trial court erred in denying this motion, arguing the evidence was unlawfully obtained because the officer lacked probable cause to make the stop. We affirm the denial of Prickett’s motion to suppress.
In reviewing a circuit court’s denial of a motion to suppress evidence, we conduct a de novo review based on the totality of the circumstances, reviewing findings of historical facts for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the circuit court and proper | ¡^deference to the circuit court’s findings. Duke v. State, 2016 Ark. App. 402, 2016 WL 4916834. We reverse the circuit court’s ruling only if it is clearly against the preponderance of the evidence. Id.
At the hearing on Prickett’s motion to suppress, Monticello police officer James Slaughter testified he saw Prickett driving a vehicle on July 23, 2015, and pulled him over because he knew Prickett’s driver’s license was suspended. He testified that, two weeks prior to pulling Prickett over, he had learned by radio traffic that another officer had pulled Prickett over, at which time it was determined that Prick-ett’s driver’s license was suspended; Officer Slaughter further stated that on July 22, the day before he pulled Prickett over, he had seen Prickett driving, confirmed that Prickett’s license was still suspended, but was unable to initiate a stop before Prickett pulled into a driveway and entered a house. He testified that, on the day he stopped Prickett, he informed Prickett he was under arrest for driving on a suspended license and then verified that Prickett’s license was still suspended.
According to Officer Slaughter, Prickett gave him consent to search the vehicle, and when he opened the door, he saw the handle of a small pistol between the driver’s seat and the console, as well as a piece of paper rolled into a straw with white residue in it he believed to be methamphetamine on top of the console. Inside the console, Officer Slaughter found a clear baggie tied into a knot containing a white crystal-like substance that appeared to be methamphetamine, as well as a flashlight with a white residue in the battery compartment.
On cross-examination, Officer Slaughter admitted the sole reason he pulled Prickett over was for driving on a suspended license, and he did not check the status of Prickett’s license prior to stopping him for that reason. He further acknowledged he did not mention |sin his report he had confirmed the suspension of Prickett’s driver’s license on two prior recent occasions.
The circuit court denied Prickett’s motion to suppress. The case then proceeded to trial, where Prickett was convicted of the above drug and firearm offenses and acquitted on the offense of driving on a suspended license.
On appeal, Prickett challenges the denial of his motion to suppress the evidence that he contends was illegally obtained during the traffic stop, arguing that Officer Slaughter did not have reasonable suspicion to stop him for driving on a suspended license because Officer Slaughter did not verify with dispatch that his license was still suspended before pulling him over; that it was only after stopping Prickett and informing him he was under arrest that Officer Slaughter confirmed Prickett’s license was still suspended.
In order to make a valid traffic stop, an officer must have probable cause to believe there has been a violation of a traffic law. Robinson v. State, 2014 Ark. 101, 431 S.W.3d 877. Probable cause is defined as “facts or circumstances within a police officer’s knowledge that are sufficient to permit a person of reasonable caution to believe that an offense has been committed by the person suspected.” Id. at 5, 431 S.W.3d at 880. The degree of proof needed to sustain a finding of probable cause is less than the proof needed to sustain a criminal conviction; in assessing whether probable cause exists, the appellate review is liberal rather than strict. Id. Whether a defendant is actually guilty of the traffic violation is for a jury or court— not the officer on the scene—to determine. Id. Under these parameters, Prickett’s argument that Officer Slaughter did not have probable cause to stop him is unavailing.
|4It is a misdemeanor for a person to operate a motor vehicle during a period in which his driving privilege is suspended. Ark. Code Ann. § 5-65-105 (Repl. 2016). In the two weeks prior to pulling Prickett over for driving on a suspended license, Officer Slaughter had twice verified Prick-ett’s license was suspended, with the last verification being the day before Prickett was pulled over and arrested. Under our standard of review, we hold that Officer Slaughter had reasonable cause to believe Prickett’s license was still suspended one day after he had verified the suspension. A belief that Prickett was still committing a traffic violation by driving on a suspended license was all that was required for Officer Slaughter to have had sufficient probable cause to initiate a traffic stop. Travis v. State, 331 Ark. 7, 959 S.W.2d 32 (1998). Because Officer Slaughter had probable cause to stop Prickett, we affirm the circuit court’s denial of Prickett’s motion to suppress.
Affirmed.
Virden and Whiteaker, JJ., agree. | [
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COURTNEY HUDSON GOODSON, Associate Justice
|,A jury in the Little River County Circuit Court found appellant Timothy Lamont Howard guilty of two counts of second-degree murder and one count of attempted second-degree murder for which he received consecutive sentences totaling thirty-eight years in prison. For reversal, he contends that the circuit court erred by failing to grant his motions for directed verdict. We affirm.
This case involves the homicides of Brian Day and his wife, Shannon, and the attempted murder of their seven-month-old son, Trevor, which occurred in December 1997. The prosecuting attorney initially charged Howard with capital murder for the deaths of Brian and Shannon and with the attempted capital murder of Trevor. A jury found Howard guilty as charged, and he received two death sentences for the capital murders and a thirty-year sentence and a $15,000 fine for the offense of attempted capital-murder. This court affirmed his convictions and sentences. Howard v. State, 348 Ark. 471, 79 S.W.3d 273 200. We also upheld the denial of post- conviction relief. Howard v. State, 367 Ark. 18, 238 S.W.3d 24 (2006). In 2012, this court granted Howard permission to pursue a petition for writ of error coram nobis in the circuit court. Howard v. State, 2012 Ark. 177, 403 S.W.3d 38. The circuit court subsequently found merit in Howard’s petition and ordered a new trial. The following facts are adduced from the record of this trial.
On Saturday, December 13,1997, Danny Russell, the Sheriff of Little River County, received a dispatch at 10:00 a.m. about a U-Haul truck that was parked in a field and backed up to a wooded area. This field was located off a county road and on a farm owned by the Howard family near Ogden, Arkansas, approximately three miles from the intersection of Highway 71 and East Ogden Road. The report, which was made by persons searching for their escaped horses, was that blood was dripping out of the back of the U-Haul. After he arrived, Russell saw what appeared to be blood on the left side of the bumper, and he used bolt cutters to remove the padlock on the U-Haul’s cargo area. Inside, he discovered the body of a deceased male.
Although the lease agreement found inside the U-Haul stated that the vehicle had been rented by Brian, the identity of the body was not immediately known. Once the authorities confirmed that it was Brian’s body, they went to the Days’ home near Ashdown to notify Shannon of his death. The officers received no answer at the door, but they later returned and gained entry into the home with the aid of Brian’s brother, David Day. After hearing muffled cries coming from a bedroom, they found Trevor alive stuffed inside a closed Marlboro bag underneath clothing. He had a lamp cord wrapped tightly around his | meek. The officers also found Shannon’s body, who was naked below the waist, in the bedroom on the floor of a closet with clothing and other items stacked on top of her.
According to the medical examiner, Brian had sustained a hinge-type injury to the skull, caused by a massive delivery of force and which accounted for the high volume of blood found in the U-Haul. He also had been shot in the back of the head. The medical examiner offered the opinion that the hinge fracture occurred while Brian lay on the ground after being incapacitated by the gunshot wound. He stated that the hinge fracture was consistent with Brian’s having been run over by the U-Haul while his head was wrapped in a piece of carpet found at the scene. The physical evidence at the site indicated that the assault on Brian had begun at an old cook shed in the field. The medical examiner estimated that Brian’s death occurred between the hours of midnight and 8:00 a.m. Expert testimony also established that the projectile recovered from Brian’s head was a .38-cali-ber bullet that had most likely been fired from a .38 Special or a .357 revolver. Vickie Howard, who was then Howard’s ex-wife, testified that Howard was in possession of a .38-caliber revolver on Friday, December 12, 1997, the day before Brian’s body was found. Howard’s fingerprints were on the outside of the driver’s door of the U-Haul.
That Saturday morning, Herbert Jones was walking home from his aunt’s house. At 8:30 a.m., he found a pair of work boots sitting sixty feet off the roadway at the corner of Highways 71 and 380, a distance of three miles from the Howard field. Blood on the left boot matched Brian’s DNA. In her testimony, Vickie stated that the boots were the same |4size and style of boots she had purchased for Howard. Hairs found inside the boots were a match to Howard’s DNA.
The medical examiner also testified that Shannon died as a result of strangulation and blunt-force trauma. When her body was discovered, she had a ligature tied around her neck and her wrists were bound in handcuffs behind her back. The handcuffs had black fur on them. Jennifer Stanley, one of Howard’s girlfriends, testified that the handcuffs were similar to those Howard had purchased at an adult novelty store. At the Days’ house, officers collected a Mountain Dew bottle with Howard’s fingerprint on it.
By all accounts, Howard and Brian were long-time, close friends. One witness stated that “when I saw one, I saw the other. If one was into something, the other was into something.” The testimony established that they used and sold drugs together. According to Vickie, Brian and Howard’s friendship had cooled until two weeks before the murders. Lloyd Day testified that Brian suspected that Howard had stolen a rifle from him that Brian had borrowed from his brother and that Howard owed Brian a lot of money. There was also testimony suggesting that Howard and Shannon were .having an affair or that Brian suspected they were. Witnesses also testified that Shannon believed she was pregnant with Howard’s child. Nonetheless, Howard accompanied Brian to rent the U-Haul on Thursday, December 11, 1997. The testimony of several witnesses indicates that the two had deals arranged for Thursday and Friday that either involved drugs or stolen merchandise. |fiOn Friday, Shannon confided in David that she and Brian were afraid of Howard because “he found out something.”
Howard’s whereabouts that weekend were established primarily through the testimony of Vickie and Jennifer. Before her shift ended on Friday morning, December 12, 1997, Vickie left work and drove to Ashdown because she was worried about Brian and Shannon. At around 4:00 a.m., she stopped at a café to eat breakfast while waiting for them to wake up. Howard also arrived at the restaurant. Howard told her that he had just left the Days’ house, and he discouraged her from visiting them because, he said, they were fighting. Instead, Vickie and Howard made plans to meet at the Motel 6 in Texarkana. Howard was driving a U-Haul truck, and at the motel, Howard told her not to tell anyone about the U-Haul because it would get her killed. Howard asked her to drive him to the family farm, and they arrived there before daylight. He told her to shine the headlights of her vehicle on the cook shed. Howard informed her that this was where Brian and Shannon were hiding their drugs, and Vickie testified that Howard went inside the shed and that she saw him bend down. Vickie then dropped off Howard at the apartment of Jennifer’s sister, Kimberly Jones, whom Howard was living with at the time. When Vickie returned to the motel, the U-Haul was still there.
At approximately 5:00 p.m. on Friday, Vickie picked up Howard at a friend’s residence near Kimberly’s apartment. They returned to the motel. Vickie stated that Howard was carrying a black nylon camera bag. She asked him what was inside the bag, | fiand Howard replied that the bag contained “kinky stuff.” He did not allow her to look inside the bag, and he said that its contents included handcuffs, rope, and tape. Vickie testified that Howard went to Walmart and that when he returned, she saw a .38 revolver sticking out of his pants. She stated that he left the motel driving the U-Haul at 9:30 p.m., wearing a black sweatshirt, jeans, and. his work boots.
At approximately 11:00 p.m. that night, Howard called Jennifer and asked her to pick him up at a rest area on Highway 71 near the Red River Bridge. When she arrived, Howard emerged from her sister Kimberly’s car and got into her vehicle. He told Jennifer he needed to rest. She testified that Howard was lying in her backseat and that his “body was just jerking and shaking and his eyes were all bugged out.” Jennifer believed that he had been awake too many days doing drugs and that she had never seen him in that condition. They went to bed when they arrived at her duplex, and she said that Howard continued to shake as he lay beside her. He woke up sometime between 1:00 and 1:30 a.m. and told Jennifer that he had to go “take care of some business” and to get his money. She saw him put on his clothes and his work boots. Howard left in her silver 1997 Honda Civic, and he returned between 3:00 and 3:30 a.m. He awoke Jennifer to tell her that Shannon and Trevor would be staying with her while he and Brian “took care of some business.” Jennifer saw Shannon, while she only heard Brian and Trevor. Jennifer went back to sleep, and she was alone when she awoke. Dale Fields testified that he was driving by the Days’ home at 5:45 a.m. that morning and saw a small silver car sitting in the driveway.
Jennifer got up sometime between 6:30 a.m. and 7:00 a.m. that Saturday morning, and she proceeded to get ready for work. Howard came into the bathroom while she was |7bathing and told her that Brian and Shannon were “in hiding” and that he was the only person who knew where they were. Jennifer noticed that her purse and wallet had been disturbed, and she asked Howard about her money. She testified that Howard removed two $100 bills from his pocket and laid them on the counter, saying that the money “should cover it.” Jennifer further testified that Howard said he needed a truck and that he wanted her to ask her boss, Robin Jones, if he could borrow Jones’s truck, a black Ford Splash. Howard told her that he needed to move furniture for Brian. After this conversation, Jennifer agreed to drive Howard back to the rest area. When she got into her car, she saw in. the backseat Howard’s black bag, some luggage, a jacket, and a purse. Upon inquiry, Howard stated that the luggage, the jacket, and the purse belonged to Shannon. When they arrived at the rest area, Howard left the black bag in Jennifer’s vehicle, but he placed the other items in Kimberly’s car, which was still at the rest area. Witnesses who were friends of Shannon’s testified that she did not go anywhere without her purse.
Jennifer returned home to finish preparing for work. Howard came in fifteen minutes later. Jennifer stated that during this time frame, Howard had stopped by Kimberly’s apartment and had given her $700. Jennifer said that Howard was angry- at her because she would not call her boss about borrowing the truck. She testified that he said, “I need a God damn truck, and I gotta go.” Shortly after Jennifer arrived at work, Howard appeared there and asked whether she had contacted Jones about the truck. Jennifer arranged for Howard to borrow the truck, and Howard picked it up from Jones between 9:30 and 10:00 a.m.
| sHoward went to Pro-Truck Outfitters in Texarkana between 9:00 and 10:00 a.m. There, he paid $140 in cash for the largest tool box the store, had in stock. Testimony established that the tool box was large enough to hold an adult human body. Howard told the salesman, Eddie Scroggin, that he was driving a car and would have to return later in a truck to retrieve the tool box. Scroggin testified that Howard turned his back to Scroggin as he retrieved the cash to make the purchase. Scroggin said that Howard returned about an hour and a half later to pick up the tool box.
Also in her testimony, Vickie stated that Howard had called her at 11:00 a.m. on Saturday and asked her to pick him up at Miller Bowie in Texarkana. She said that Howard was driving a black truck she had never seen before. Vickie testified that Howard was nervous and afraid that the police would see him in the truck, and she said that he wanted to leave the truck and get rid of the keys. Howard explained to her that he was on his way to the farm to meet Brian when he saw the police and an ambulance heading in that direction and that he turned around because he thought something had gone wrong. Howard told her that his part of the deal was $4,000. She also said that Howard was worried because his fingerprints would be on a .38 he had given to Brian. Vickie testified that Howard was wearing the same clothes she had last seen him in except that he had on tennis shoes. She also said that when he got into her car, he pulled his coat up around his neck. Howard asked her to take him to the Motel 6, and he gave her $120 for a $30 room, telling her she could use the excess money to buy a Christmas present for her son.
Vickie contacted Jones and facilitated the return of the truck to him. Next, she took Howard to Kimberly’s apartment. Howard called Jennifer that afternoon and told her that |fla body had been found in a U-Haul near Ogden and that the dead person might be his best friend. He told Jennifer to clean out her car because it had been in the area of the U-Haul. Howard also asked her if she was going to “turn him in.” When Jennifer arrived home from work, the tool box Howard had purchased was sitting in her front yard. The box was filled with cleaning supplies, which she discovered had been taken from her home. She also recalled that Howard had asked her to leave a key underneath her doormat.
Meanwhile, Howard and Kimberly checked into a motel room upon learning that a body had been found in the U-Haul. According to Kimberly, Vickie called her and Howard at approximately 4:00 p.m. and told them that Brian and Shannon were dead. Howard and Kimberly appeared at Jennifer’s duplex at 5:00 p.m. They informed Jennifer of Brian’s and Shannon’s deaths. Jennifer said that she walked with Howard while he retrieved his black bag from her car. She asked him where he was going, and she said that Howard replied, “I don’t know” and that he said, “I’m getting out of here because I’m gonna be accused of killing Brian and Shannon.” The three left together in Jennifer’s Honda, and Jennifer stated that Howard returned the black bag to her car. Jennifer said that Howard was quiet and did not appear to be upset about the deaths of his best friend and his wife.
Jennifer further testified that she, Howard, and Kimberly drove to Shreveport. On the way, Howard called Vickie, and she informed him that the police wanted to talk to him, but he told her that he did not want to speak to them right then. Jennifer said she asked Howard what had become of Shannon’s belongings that had been in her car earlier that day. He told her he had “gotten rid of’ her things. Jennifer also overheard Howard asking Kimberly what she had done with the key to the padlock of the U-Haul, and Kimberly told hnhim she had thrown it away. In further conversations, Howard told Jennifer he had purchased the tool box for Brian. Jennifer was not aware that Brian owned a truck. Howard also told her that he and Brian were going to use the supplies she found in the box to clean something. In addition, Howard advised Jennifer that he had been at the Days’ house early that Saturday morning in her vehicle. He said that he had been waiting for Brian to come home and that Shannon wrote Christmas cards while he drank a Mountain Dew.
The trio went to a Walmart in Shreveport, and Howard gave them $50 to buy toiletries because they had not had time to pack before they left. They did not stay the night in Shreveport because there were no hotel rooms available. The three then drove to New Boston, Texas, and rented a motel room there. Sunday, that next morning, Kimberly and Jennifer purchased a newspaper, and they read about the bloody boots being found. Howard commented that his boots had been in the U-Haul and that someone was “setting him up.”
Sunday afternoon, Howard, Kimberly, and Jennifer went to the sheriffs office to give statements. Howard instructed the sisters “not to say anything about the money.” After' Jennifer had given her statement, Howard asked her if she had mentioned the tool box, and she told him she had not. Jennifer stated that she and Howard returned to her duplex after giving their statements. She said that she made a comment about calling the police and that Howard slung her across the room. On Wednesday, Jennifer decided to meet again with the officer who was investigating the murders. She met him at a lake because she was too frightened to be seen at the sheriffs office. Jennifer gave the officers | n permission to search her car, and they found Howard’s black nylon bag. It contained rope and a roll of tape, but no handcuffs.
Based on the evidence, the jury adjudged Howard guilty of second-degree murder in connection with the deaths of Brian and Shannon and of attempted second-degree murder with regard to Trevor. As mentioned, he received a combined term of thirty-eight years’ imprisonment for these convictions. This appeal followed.
As his sole issue on appeal, Howard contends that the circuit court erred by denying his motions for directed verdict because the evidence does not demonstrate that he was the perpetrator of the offenses. He argues that the State’s theories of the murders are not supported by the evidence. Howard points to testimony demonstrating that Shannon was not pregnant at the time of her death. He also maintains that there was no evidence as to how much money Howard owed Brian and that there was testimony that Brian owed other people money. Howard asserts that Brian did not name Howard as a suspect when he reported to the police that the rifle had been stolen, and he suggests that Brian knew what had happened to the gun and reported it as stolen when his brother pressed for its return. He also takes issue with the notion that Brian engaged in a drug deal on Thursday because witnesses stated that Brian had no drugs for sale on Friday. He also contests the State’s theory of how the blood got on the boots and how they came to be placed where they were found. Howard also disputes whether Brian was dragged across the field on a piece of carpet, and he posits that the hinge fracture Brian sustained might have been caused by his being stomped on with a boot. He notes that the boots that were found had no blood on the bottom of them and that unidentified Caucasian hairs were inside the boots. Howard also |iapoints to evidence that unidentified fingerprints were discovered on the picture frames found on top of Shannon’s body. In addition, he notes that no fibers, blood, or DNA of his were on anything tested from Brian and Shannon. Howard asserts that none of his clothes had blood on them and that he had no scratches or injuries on his hands or face. He is also critical of the investigation conducted by the police. Finally, he relies on evidence suggesting that others had a motive to kill Brian and Shannon.
On appeal, we treat a motion for directed verdict as a challenge to the sufficiency of the evidence. Brooks v. State, 2016 Ark. 305, 498 S.W.3d 292. The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence. Wells v. State, 2013 Ark. 389, 430 S.W.3d 65. Substantial evidence is evidence that is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Sylvester v. State, 2016 Ark. 136, 489 S.W.3d 146. In reviewing a sufficiency challenge, we view the evidence in the light most favorable to the State, considering only evidence that supports the verdict. Mercouri v. State, 2016 Ark. 37, 480 S.W.3d 864.
Evidence of guilt is not less because it is circumstantial. Chatmon v. State, 2015 Ark. 28, 467 S.W.3d 731. Circumstantial evidence may provide the basis to support a conviction, but it must be consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion. Airsman v. State, 2014 Ark. 500, 451 S.W.3d 565. Whether circumstantial evidence excludes every other reasonable, hypothesis consistent with innocence is for the jury to decide. Dixon v. State, 2011 Ark. 450, 385 S.W.3d 164. Finally, the credibility of the witnesses is an issue for the jury and not the court. Green v. State, 20 Ark. 497, 430 S.W.3d 729. The trier of fact is free to believe all or part of any witness’s testimony and may resolve questions of conflicting testimony and inconsistent evidence. Conte v. State, 2015 Ark. 220, 463 S.W.3d 686.
Also, efforts to conceal a crime and evade detection can be considered as evidence of consciousness of guilt. Barrett v. State, 354 Ark. 187, 119 S.W.3d 485 (2003). False, improbable, and contradictory statements to explain suspicious circumstances may be considered by the jury in determining guilt. Hill v. State, 299 Ark. 327, 773 S.W.2d 424 (1989).
Howard’s arguments challenging the sufficiency of the evidence overlook the fact that our standard of review requires us to consider the evidence in the light most favorable to the State and to only consider evidence that supports the verdicts. Mercouri, supra. When the evidence is viewed in that fashion, there is substantial evidence to support the jury’s findings of guilt. Brian was found in a remote field on property owned by the Howard family. His body was locked inside a U-Haul truck rented by Brian but driven by Howard before the murder. Howard’s fingerprints were on this truck. According to the testimony, his girlfriend Kimberly disposed of the key to the lock on the U-Haul. Boots like those worn by Howard were found a short distance from the field. Brian’s blood was found on one boot, and Howard’s hair was found inside the boots. Although Howard was wearing boots in the hours before Brian’s body was discovered, he was wearing tennis shoes afterward. In addition, Howard essentially admitted that the boots were his when he proclaimed to Kimberly and Jennifer that he was being set up when they read about the boots in the newspaper. Howard purchased a large tool box that morning, and the lutestimony indicated that he was on his way to the field in a truck that he insisted on borrowing with a tool box filled with cleaning supplies. Upon seeing the police, Howard avoided detection and returned to Texarkana. Although Howard said he believed that something had gone wrong with Brian, he left rather than check on his friend. Howard was also afraid that the police had seen him in the truck, and he distanced himself from that vehicle. Howard had also been in possession of a .38-caliber revolver the day before Brian was shot with a weapon of that kind.
The testimony also reveals that Howard was with Brian, Shannon, and Trevor in the wee hours of that Saturday morning. At that time, he was traveling in Jennifer’s vehicle, which contained Shannon’s purse, jacket, and luggage. Howard later told Jennifer he had disposed of Shannon’s belongings. He also advised Jennifer to clean out her car because it had been located near the U-Haul. A vehicle of this description was also seen at the Days’ home that morning. Shannon’s hands were bound with handcuffs identical to those that Howard was known to possess. Although he had told Vickie that his black bag contained handcuffs, no handcuffs were found inside the bag when it was recovered from Jennifer’s car and searched.
Howard’s actions and other statements also support the jury’s verdict. When he left Jennifer’s house at 1:30 a.m. on Saturday, he told her that he was going to get his money. Despite not having a job, he spent and dispensed a fair amount of cash that day. Howard instructed Kimberly and Jennifer not to mention the money when they gave their statements to the police. It is also telling that Howard left town Saturday night and did not wish to speak to the police. In addition, he made inconsistent statements to Jennifer. At first, he h„told her that the Days were in hiding, but he later said that he had been at the Days’ ■home drinking a Mountain Dew with Shannon while she wrote Christmas cards. A Mountain Dew bottle with Howard’s fingerprint on it was found in the Days’ living room. Howard also told Jennifer that he needed Jones’s truck to help Brian move furniture, although the U-Haul had been rented.
Citing Roderick v. State, 288 Ark. 360, 705 S.W.2d 433 (1986), Howard maintains that evidence demonstrating that he was last seen with the victims is not sufficient to support a conviction. However, the evidence in this case demonstrates much more than that. It is our conclusion that the jury’s verdicts are supported by substantial evidence. Therefore, we affirm his convictions and sentences.
Affirmed.
. It was a 4-3 decision.
. Vickie and Howard remarried in October 2010, while he was in prison.
. At the time of the murders and the first trial, Jennifer's last name was Qualls.
. Art Lamon testified that he purchased this rifle from Howard for $200 in October 1997.
.Kimberly married Howard following his arrest and before the first trial. She died sometime after the first trial, and her testimony from that trial was presented by the defense. | [
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ROBERT J. GLADWIN, Chief Judge
| Appellant Antonio Whitlow appeals his convictions from the Pulaski County Circuit Court on two counts of murder in the first degree and kidnapping. He argues that the trial court incorrectly refused to allow him to represent himself pro se. Specifically, Whitlow claims that the trial court’s reliance on his educational level and prior legal knowledge were invalid bases for its refusal to allow him to appear pro se. We affirm.
I. Fads
Whitlow appeals his convictions for two counts of murder in the first degree (one count in the presence of a child) and kidnapping. He was sentenced to sixty years for each count of murder in the first degree, plus five years for kidnapping, and he received an additional ten years for committing one count of murder in the first degree in the presence |¡>of a child. All sentences are to run consecutive to one another for a total of 135 years to be served in the Arkansas Department of Correction.
On the eve of trial during an omnibus hearing, Whitlow addressed the trial court and indicated that he no longer wanted his court-appointed attorney of record, Ronald L. Davis, to represent him. Whitlow indicated that he intended to hire new counsel, Teresa Bloodman, but stated that she would not assume his representation until counsel of record withdrew. The trial court declined to relieve counsel without other counsel being present to enter an appearance and indicated, “Okay, let’s have this hearing.”
Whitlow then expressed that if he was left with the choice between having counsel of record continue to represent him or of representing himself, he preferred to represent himself. Specifically, Whitlow asked the trial court, “Okay. So why come I can’t represent my own self tomorrow?” After a short recess, the trial court placed Whitlow under oath, and in direct response to the trial court’s asking Whitlow if he wanted to represent himself the following day at trial, Whitlow responded, “If I can’t have [Teresa] Bloodman, yeah.” After exhaustive questioning by the trial court, much of which involved irrelevant inquiries about Whitlow’s legal abilities, the trial court refused to allow Whitlow to proceed pro se.
II. Standard of Review and Applicable Law
Our standard of review is whether the circuit court’s finding that a waiver of rights was knowingly and intelligently made was clearly against the preponderance of the evidence. Williams v. State, 2009 Ark. App. 684, 372 S.W.3d 358. Justice Stewart opined in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), that a defendant in a state criminal trial has a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so. Stated ^another way, the inquiry is whether a State may constitutionally hale a person into its criminal courts and force a lawyer upon him, even when he wants to conduct his own defense. See id.
The Sixth Amendment to the United States Constitution, made obligatory upon the states by the Due Process Clause of the Fourteenth Amendment, guarantees an accused the right to have assistance of counsel for his defense. Williams, supra. Article 2, section 10, of the Arkansas Constitution specifically provides that an accused in a criminal prosecution has the right to be heard by himself and his counsel. Id. It is also well established that an accused has a constitutional right to represent himself and make a voluntary, knowing, and intelligent waiver of his constitutional right to assistance of counsel in his defense. Id.
The constitutional right to counsel is a personal right and may be waived at the pretrial stage or at trial. Walton v. State, 2012 Ark. 336, 423 S.W.3d 56. An accused is entitled to represent himself provided that he knowingly and intelligently forgoes his right to counsel and is able and willing to abide by the rules of procedure and courtroom protocol. Jarrett v. State, 371 Ark. 100, 263 S.W.3d 538 (2007). Our supreme court has said that a defendant in a criminal case may invoke his right to defend himself pro se provided that (1) the request to waive the right to counsel is unequivocal and timely asserted, (2) there has been a knowing and intelligent waiver of the right to counsel, and (3) the defendant has not engaged in conduct that would prevent the fair and orderly exposition of the issues. Id.
III. Discussion
The following exchange, in relevant part, occurred between the trial court and Whit-low:
|4Trial CouRt: Okay. Do you believe that you’re competent to represent yourself?
Whitlow: Yes.
Trial Court: What kind of education have you received?
Whitlow: I received past the twelfth grade education.
Trial Court: Can you read and write?
Whitlow: Yes.
Trial Court: Have you been through criminal trials before? Do you know how to do a trial? Have you sat through a trial? Have you been a defendant in a trial?
Whitlow: Yes.
Whitlow: [Bjeen involved in a trial where I was a defendant. I have seen other trials.
Trial Court: When and where was that?
Whitlow: Right off the top of my brain off the top of my mind it’s been several as far as family members and friends that had different charges. So I’m pretty much familiar.
Trial Court: Pretty much familiar?
Whitlow: Yes.
Trial Court: Do you know how to—how to do a trial?
Whitlow: Okay. Well, it’s a lot of things that you do in a trial, but yes.
Trial Court: What do you mean by when you say—what do you mean by that when you say you’ve had past twelfth grade?
IbWhitlow: No, I said I have twelfth grade.
Trial Court: Did you graduate from high school?
Whitlow: No, I got my GED.
Trial Court: Okay. Okay. At this point I’m not convinced that you can competently represent yourself or make a competent decision regarding representation. I’m not allowing a waiver because of your lack of competence and your earlier disruptive behavior. Also, I feel that you know nothing about a trial that is relevant. You don’t know anything about—you have not demonstrated that you know anything about criminal procedure. And I believe that if you represented yourself tomorrow would just be a long drawn out guilty plea.
Whitlow: What question did I not answer correctly?
Trial Court: I’ve made my ruling. You’re not going to—
Whitlow: Okay. Teresa Blood[man], she’s going to be here tomorrow. I’ll not ask—
Trial Court: —start tomorrow. If she shows—let me just say if she shows up tomorrow, Mr. Davis can leave and she can try the case. That’s fine with me.
Whitlow: He’s going to leave anyway because he’s not representing me.
Trial Court: .No,-he is.
Whitlow: He is not representing me.
Trial Court: He’s on the case.
Whitlow: I can decide if I want to represent—he’s not going to represent me.
Trial Court: Mr. Davis is the attorney of record in this case.
Whitlow: He is not representing me. So what we’re doing right now is he’s giving me my motion of discovery. So either I can—because I—I’m just now getting it today. And with that I’m [going to] speak with Ms. Bloodman and handle it from there.
Trial Court: Okay. Have a seat over there and we’re going to have this hearing on this motion to suppress.
| bTrial Court: I am ruling that he does not have competence in legal civil—excuse me, criminal procedure. You know him better than I. Has he had an Act III already? I do not have the whole docket sheet in front of me.
Whitlow claims that his request to waive the right to counsel was unequivocal. He indicated to the trial court initially that he wanted to hire attorney Teresa Bloodman, but, because she was not present at the hearing and had not filed an entry of appearance, the trial court did not enter her as the new attorney of record. When pressed on the issue of whether he wanted to represent himself, Whitlow clearly indicated he wanted to represent himself rather than have current counsel of record represent him.
We acknowledge the merit in Whitlow’s argument that the trial court incorrectly based the majority of its inquiry on his knowledge of the legal system and his level of education. The trial court, just as in Barnes v. State, 258 Ark. 565, 528 S.W.2d 370 (1975), pointed out his lack of knowledge of procedures and rules and the hazards attendant upon his choice. Just as in Barnes, Whitlow submits that his request was not refused because it was not knowingly and intelligently made; rather, it was refused in an effort to protect him from his ignorance of the rules of evidence and the procedures in presenting evidence.
As to whether Whitlow had engaged in conduct that would prevent the fair and orderly exposition of the issues, he urges that the record is void of any indication that he disrupted of the trial-court proceedings. He acknowledges that there was an instance in which the trial court was questioning him, and Whitlow interrupted in an attempt to continue to address the trial court. The trial court abruptly indicated—apparently to court personnel—“take him back there, you all, take him back there to that little cell and keep him there if he’s going to be disruptive.” Whitlow maintains that there is no indication that |7he was actually removed from the courtroom, and he questions whether the trial court was merely instructing court personnel what to do if he became disruptive. He submits that the record is void of any admonishments given to him regarding any disruptive behavior attributable to him.
We affirm the trial court’s ruling on Whitlow’s only claim of supposed error—that he was denied the right to represent himself—because he never unequivocally requested to represent himself. Rather, he consistently stated that he wanted someone other than his current court-appointed attorney, Ronald L. Davis, to represent him at trial.
In Faretta, supra, the United States Supreme Court held that the accused generally has a right to defend himself under the Sixth Amendment, because it is the accused who will suffer the consequences if the defense fails. Id. This right is not, however, without some outer limit, and Faretta made clear that, although a defendant need not have the skill and experience of a lawyer in order to competently and intelligently choose self-representation, he “should be made aware of the dangers and disadvantages of self-representation so that the record will establish that he knows what he is doing and his choice is made with open eyes.” Id. at 835, 95 S.Ct. 2525.
Where, as here, Whitlow sought to have another attorney represent him, a request to proceed pro se was not unequivocal, and the analysis in Faretta and its progeny does not apply. See Morgan v. State, 359 Ark. 168, 195 S.W.3d 889 (2004) (holding that a defendant’s right to counsel is not absolute, and he may not use his right to counsel to frustrate the inherent power of the court to command the orderly, efficient, and effective administration of justice). We have held that “[t]he right to counsel may not be manipulated or subverted^ obstruct the orderly procedures of the court, or to interfere with the fair, efficient, and effective administration of justice, particularly when a change of counsel is sought on the eve of trial, primarily for the purpose of delay, and without making any effort to obtain substitute counsel.” Liggins v. State, 2015 Ark. App. 321, at 6, 463 S.W.3d 331, 335-36.
Mr. Davis first appeared as Whitlow’s attorney at a hearing on June 4, 2014. On August 28, 2014, the trial court scheduled a jury trial to begin on March 31, 2015. At a hearing held March 4, 2015, Whitlow told the trial court that he was “filling out a grievance” against Mr. Davis with the Arkansas Supreme Court.
The record indicates that Mr. Davis explained to Whitlow that if he had a problem with him, Whitlow needed to get another lawyer. Whitlow then said he was “in the process of hiring another attorney.” The trial court told Whitlow to let it know if he hired someone else.
At the hearing on March 30, 2015, the day before Whitlow’s jury trial began, he informed the trial court that he wanted Mr. Davis to withdraw because “no other attorney will listen to my case because they say it’s against the rules because I have one.” He also said he- had filed a complaint against the trial court with the Judicial Discipline and Disability Commission for holding the hearing that day even though Whitlow was trying to change attorneys. The trial court asked Whitlow if he wanted to fire Mr. Davis and get a new attorney before the trial was to begin the next day. Whitlow replied that he could not get one “before tomorrow.” The trial court informed Whitlow that the trial would begin the next day. During the discussion, this exchange occurred:
|9Tbial Couet: So you want to try—you want to defend yourself tomorrow?
Whitlow: No, I’m hiring another attorney.
Teial Couet: You’re going to have them by tomorrow?
Whitlow: Well, no other—first, we would have to get rid of this procedure. Then another attorney will listen to my case.
Whitlow claimed that he had never “received my motion of discovery.” The trial court told him that his lawyer had taken care of discovery. Whitlow asked how the trial could be held “when I do have a right to choose the attorney that I want to choose.” The trial court told him he was “wrong” about that, reminding Whitlow that the trial had been set since August 28, 2014. The trial court explained that he could hire anyone he wanted as long as it occurred by the next day.
After a break in the hearing, Mr. Davis informed the trial court that Whitlow had told him that he wanted to represent himself and that he may have another lawyer in court for trial the next day. The trial court asked Mr. Davis about the status of discovery. Mr. Davis stated that he had received the complete discovery file and had gone through it with Whitlow. The trial court then put Whitlow under oath, and the following exchange occurred:
Teial Couet: You have indicated that [you] wish to proceed without a lawyer. Is that true?
Whitlow: No. I had said that I will have one tomorrow. He’s saying that.
The trial court reiterated to Whitlow that the trial date had been set since the previous August and that he had “plenty of opportunities” to have Mr. Davis withdraw. The trial court then asked Whitlow if he understood that he was facing a possible sentence Imof life imprisonment without parole. Whitlow replied, “I’m not going to represent myself tomorrow.”
We hold that Whitlow did not pass the initial threshold of unequivocally stating that he wanted to represent himself, telling the trial court instead that Ms. Blood-man would be his new attorney. When asked why Ms. Bloodman had not informed the trial court that she was going to represent him, Whitlow explained that she told him it was “against the rules” for her to talk to him while he was represented by other counsel.
Mr. Davis told the trial court that when he talked to Whitlow after the earlier hearing, Whitlow told him that he did not want Mr. Davis to represent him. Mr. Davis confirmed that he and Whitlow had met to prepare for trial as recently as two days earlier. When the trial court told Whitlow that they would go to trial the next day with Mr. Davis representing him, Whitlow responded, “[n]o,” and insisted that he had been talking with Ms. Blood-man.
The trial court recounted the history of the case and noted that there had been neither a motion by Mr. Davis to withdraw nor a motion to continue the trial date filed in the case. This colloquy then occurred:
Trial Cqukt: Do you wish to represent yourself tomorrow?
Whitlow: If I can’t get [Ms.] Bloodman, yeah.
Trial Court; I’m asking you for a yes or no answer. Do you wish to represent yourself tomorrow?
Whitlow: I wish to get [Ms.] Bloodman, but she will come. But if I have to choose between Ron Davis or myself, I choose myself. But I’m telling you, I can get in contact with her.
[nWe recognize that the trial court conducted an exhaustive inquiry before ruling that Whitlow could not competently represent himself because he did not know trial procedure and previously had been disruptive. Whitlow then announced that Ms. Bloodman would be there the next morning. The trial court told Whitlow that if Ms. Bloodman appeared, she could try the case, and Mr. Davis could leave. Whitlow insisted that Mr. Davis would not represent him, but the trial court told him that Mr. Davis would remain on the case. Whit-low replied that he would speak with Ms. Bloodman and “handle it from there.”
It is undisputed that Ms, Bloodman did not appear for trial the next day and that Mr. Davis represented Whitlow throughout the trial and on appeal. Whitlow never commented further about wanting Ms. Bloodman to represent him, and he never asked that Mr. Davis be relieved or that he be allowed to represent himself. Instead of making an unequivocal request to represent himself, Whitlow said he wanted another attorney, specifically, Ms. Bloodman, to represent him at trial. His statements about representing himself were couched more in terms of preferring to do so rather than having Mr. Davis represent him. Up until the end of the discussion at the hearing the day before trial, Whitlow continued to assert that he wanted Ms. Bloodman to represent him.
In Jarrett, 371 Ark. at 104-05, 263 S.W.3d at 542, our supreme court held that “a request to proceed pro se is not an unequivocal request if it is an attempt on the part of the defendant to have another attorney appointed.” Jarrett had expressed his “extreme displeasure” with his attorney, but his displeasure “did not amount to an unequivocal request to take responsibility, be held accountable, and proceed pro se.” Id. at 105, 263 S.W.3d at 542. The same analysis applies here; accordingly, we affirm.
112Affirmed.
Abramson and Whiteaker, JJ., agree. | [
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RAYMOND R. ABRAMSON, Judge
|, This appeal from a probate case arises out of the denial of two claims appellant CMS Investment Holdings, LLC (CMSIH) made against appellee the Estate of Robert M. Wilson, Jr. (Estate). The overarching questions presented in this appeal are whether CMSIH’s claims were timely made and whether the circuit court erred by denying them. Finding no error, we affirm the circuit court’s order denying CMSIH’s claims.
I. Background
On August 3, 2012, Robert M. Wilson, Jr. (Wilson) died. On August 8, 2012, a case was opened in Pulaski County Circuit Court to probate his Estate, and his former wife, Jennifer Wilson-Harvey, was appointed as personal representative of the Estate.
Arkansas Code Annotated section 28-40-lll(a)(l)(A) requires that a “personal representative shall cause a notice of his or her appointment to be published stating the date |aof his or her appointment and requiring all persons having claims against the estate to exhibit them, properly verified to him or her, within six (6) months from the date of the first publication of the notice, or they shall be forever barred and precluded from any benefit in the estate.” On August 11, 2012, the Estate published notice to creditors pursuant to this requirement, alerting creditors of the necessity of filing their claims against the estate no later than February 11, 2013.
Our law also requires that “within one (1) month after the first publication of the notice, a copy of the notice shall also be served ... upon all unpaid creditors whose names, status as creditors, and addresses are known to or reasonably ascertainable by the personal representative.” Ark. Code Ann. § 28-40-lll(a)(4)(A). Pursuant to this statutory requirement, the Estate served notice on certain creditors, but CMSIH was not among them.
With regard to the acceptance or denial of claims, the general rule is that all claims against a decedent’s estate must be filed with the court within six months after the date of the first publication of notice to creditors. Ark. Code Ann. § 28-50-101(a)(1). Notwithstanding this rule, the claims of all known or reasonably ascertainable creditors shall be barred at the end of two years from the date of first publication of notice to creditors, even if they have not been provided actual notice in accordance with Arkansas Code Annotated § 28-40-lll(a)(2). Ark. Code Ann. § 28-50-101(h).
CMSIH did not file a claim against the Estate prior to the six-month deadline of February 11, 2013. In fact, it did not file its claims until June 6, 2014—twenty-two months after notice was published. After CMSIH filed its claims, the Estate filed a motion to deny |sthe claims as untimely. CMSIH responded contending that its claims were timely filed pursuant to the two-year time limit imposed on known or reasonably ascertainable creditors. Ark. Code Ann. § 28-50-101(h).
The circuit court conducted an evidentia-ry hearing on the Estate’s motion to deny CMSIH’s claims on November 24 and De cember 19, 2014. At the hearing, the Estate presented extensive evidence in support of its position that CMSIH was not entitled to service of notice of the probate of Wilson’s Estate. Most notable was the testimony of Rufus Wolff, Wilson’s longtime attorney and an attorney for his Estate, and Stephanie Pollard, an accounting supervisor at the Wilson Law Firm who was also employed by the Estate. Wolff, who had authority and access to search Wilson’s records and documents, testified that there was no information that CMISH was a creditor or that it sought to assert a claim against the estate. Likewise, Pollard indicated that she prepared an exhaustive list of Wilson’s books and records, including all vendors and creditors, and found no files on CMSIH.
On May 15, 2015, the circuit court entered a detailed order granting the Estate’s motion to deny CMSIH’s claims wherein it outlined its decision and the reasons supporting it. CMSIH brings this appeal.
II. CMSIH’s Claims Against the Estate
This appeal focuses on whether there was evidence to establish that CMSIH was a known or reasonably ascertainable creditor of the Estate. Accordingly, we will discuss the events giving rise to CMSIH’s claims, focusing on the evidence CMISH deems most relevant.
LCMSIH’s claims stem from two lawsuits. Both suits were initiated in March 2014—subsequent to Wilson’s death and the opening of his Estate. CMSIH sued the Estate, Jennifer Wilson-Harvey, and others in Colorado on the basis of fraud. CMSIH also sued the Estate in Delaware alleging breach of contract, breach of fiduciary duty, and various torts. Both lawsuits alleged that CMSIH sustained substantial losses in connection with its investment and membership in a corporation known as RP Holdings Group, LLC (RPHG).
RPHG is a corporation that, in April 2008, purchased the non-legal-services businesses of the Wilson Law Firm. At that time, RPHG and the Wilson Law Firm entered into an Exclusive Services Agreement wherein RPHG agreed to provide certain services to the Wilson Law Firm. It is pertinent to acknowledge that CMSIH invested in this transaction, and an LLC Agreement to which Jennifer Wilson-Harvey was a signatory identifies CMSIH as an owner of RPHG.
Also relevant to our review are the actions of Ben Cukier. Cukier personally participated in the April 2008 negotiations on behalf of RPHG and ultimately became the chairman of the board of RPHG. Cukier also served as a representative of CMSIH and was a partner at FTV Capital—a private equity firm that organized CMSIH.
Financial issues arose with regard to the contract between the Wilson Law Firm and RPHG. In 2011, Cukier, in his role with RPHG, communicated with Wilson and Rufus Wolff about Wilson Law Firm’s non-payment of its obligations and misappropriation of funds. These discussions resulted in a series of interim agreements between Wilson and RPHG regarding the financial issues at RPHG. CMSIH was not a party to any of these agreements, and Cukier did not act on behalf of CMSIH during these negotiations.
|fiThe financial issues persisted. In July 2012, an attorney for Wilson sent a demand letter proposing a settlement with RPHG and all associated owners, affiliates, and individuals but that effort was ultimately unsuccessful. Shortly thereafter, Wilson commenced two lawsuits—one against RPHG in Arkansas and another against Cukier and others in Colorado. The lawsuit against Cukier prompted a letter written on behalf of Cukier by his counsel Scott McMillin, who protested the lawsuit filed by Wilson and threatened claims and litigation by FTV and equity holders in RPHG. CMSIH was not involved or specifically mentioned in any of these communications.
III. Issues on Appeal and Standard of Review
CMSIH’s arguments on appeal are as follows: (1) due process requires actual notice to “known or reasonably ascertainable” creditors; (2) a “creditor” must be given actual notice by personal service; (3) due process requires the personal representative to make a reasonably diligent search for creditors; (4) “actual notice” must be served on any identifiable creditor with more than a conjectural claim; and (5) known or reasonably ascertainable creditors not served actual notice have two years to file claims. In arguing for reversal, CMSIH often contends that findings of fact and conclusions of law made by the circuit court were reached using erroneous legal standards.
On appeal, this court conducts a de novo review of probate cases, but the circuit court will not be reversed unless its findings are clearly erroneous. Whatley v. Estate of McDougal, 2013 Ark. App. 709, 430 S.W.3d 875. Our court gives due deference to the superior position of the circuit court to determine the credibility of witnesses and the weight to be accorded their testimony. Id.
IJV. Due Process Requires Actual Notice to “Known or Reasonably Ascertainable” Creditors
CMSIH begins its argument by basically reciting the legal standards that this court and the circuit court are required to adhere to in this case. Any arguments for reversal raised in this section are addressed more fully in CMSIH’s other points on appeal. For this reason, we take this opportunity to provide a general overview of the law as it relates to claims against estates.
Non-claim probate statutes, such as those at issue in this case, implicate constitutional due-process considerations. Tulsa Prof'l Collection Servs. v. Pope, 485 U.S. 478, 108 S.Ct. 1340, 99 L.Ed.2d 565 (1988). Known or reasonably ascertainable creditors must receive actual notice that will inform them of the need to file a claim, the date and manner by which the claim must be filed, and that any potential claim will be barred if no claim is filed. Id. “[A]ctual notice is a minimum constitutional precondition to a proceeding which will adversely affect the liberty or property interests of any party.” Id. at 485, 108 S.Ct. 1340. Nevertheless, the Supreme Court also held that “extended searches” for potential creditors are not required. Id. at 490, 108 S.Ct. 1340. “[A]ll that the executor or executrix needs to do is make ‘reasonably diligent efforts’ to uncover the identities of creditors.” Id.
V. A “Creditor” Must be Given Actual Notice by Personal Senice
It is undisputed that the Estate did not serve CMSIH with written notice of the probate of Wilson’s Estate. The U.S. Supreme Court requires that a known or reasonably ascertainable creditor receive actual notice that will inform the potential creditor of the need to file a claim, the date and manner by which the claim must be filed, and that the claim will be terminated if no claim is filed. Id. Arkansas builds upon this foundation and imposes 17more stringent notice requirements for estates. Arkansas Code Annotated § 28-40-lll(a)(4)(A) requires service of written notice on all known or reasonably ascertainable creditors.
CMSIH claims that the court found that, because Cukier knew of the probate of this Estate, this was sufficient to satisfy the requirements of Arkansas Code Annotated § 28^0-111 (a)(4)(A). Had the circuit court made that finding, it would certainly be reversible error. Regardless of whether Cukier knew of Wilson’s death and the probate of his Estate, Arkansas law requires service of written notice on all known or reasonably ascertainable creditors. Ark. Code Ann. § 28^0—111(a)(4)(A).
With this in mind, we turn our attention to the circuit court’s order to determine whether it applied the wrong legal standard when considering whether to deny CMSIH’s claims. CMSIH hinges its arguments on the portions of the circuit court’s order wherein it explains that Cukier and, in turn, CMSIH, knew of Wilson’s death and the litigation between the Estate and RPHG. Our review of these provisions, when viewed in context with the order in its entirety, leads us to the conclusion that the circuit court did not improperly determine that written service of notice was unnecessary. Notably, the first conclusion reached by the circuit court in its order is that known or reasonably ascertainable creditors are entitled to service of written notice in Arkansas. We interpret these statements cited by CMSIH as merely providing background information relevant to the issue of whether CMSIH was a known or reasonably ascertainable creditor.
|8VI. Due Process Requires the Personal Representative to Make a Reasonably Diligent Search for Creditors
CMSIH also argues for reversal on the basis that the circuit court erred by failing to make findings regarding whether the personal representative made the constitutionally mandated reasonably diligent efforts to search for creditors. Pope, 485 U.S. at 490-91, 108 S.Ct. 1340. As suggested by the Estate, a threshold matter is whether the issue of reasonable diligence is preserved for our review.
CMSIH raised the issue of reasonable diligence in its pleadings before the circuit court. However, the circuit court did not expressly rule on it. In fact, CMSIH even argued in its brief and at oral argument that the circuit court erred by failing to rule on this issue. It is an appellant’s responsibility to obtain a ruling to preserve an issue for appeal. TEMCO Const., LLC v. Gann, 2013 Ark. 202, 427 S.W.3d 651. This court cannot presume a ruling from a circuit court’s silence, and we will not review a matter on which the circuit court has not ruled. Id. Because CMSIH failed to obtain a ruling on the issue of reasonable diligence, we summarily dispose of this point on appeal.
CMSIH raises an additional argument— that the circuit court erred by imposing an obligation on it that the law does not require. Specifically, CMSIH takes issue with the circuit court’s conclusion that CMSIH “did nothing to make itself known to be a creditor until it filed its two lawsuits.” CMSIH often reiterated this point during oral argument when it perceived that jAis court misunderstood the applicable legal standard. We do not.
The law does not impose a requirement on a creditor to make itself known—in fact, our law is clear that a creditor need only be reasonably ascertainable. Pope, supra. Additionally, it is an Estate’s responsibility to conduct reasonably diligent efforts to identify 19creditors. Id. Nevertheless, when the issue of the approval or denial of a claim is litigated, it is the claimant’s burden to prove that an Estate faded to carry out these requirements. Ark. Code Ann. § 28-40-111(a)(4)(C)(ii).
Turning to the evidence on this issue, the full conclusion of law made by the circuit court reads:
The Court concludes that while the Estate may have known the identity of CMS Investments, CMS Investments did nothing to make itself known to be a creditor until it filed its two lawsuits against the Wilsons, which occurred after the six month non-claim period expired.
Again, CMSIH cherry-picks particular language from the circuit court’s orders in an attempt to make its argument. The mere fact that the Estate knew of CMSIH’s identity is insufficient to make CMSIH a known or reasonably ascertainable creditor of Wilson’s Estate. To conclude otherwise would be in contravention of the purpose of our probate statutes.
The financial issues between the Wilson Law Firm, Wilson, and RPHG are at the heart of CMSIH’s claims. The court’s order, when read as a whole, explains in detail CMSIH’s role in the dispute regarding RPHG, and CMSIH was not a party to any of the agreements or negotiations. This information is pertinent to whether CMSIH’s claims were known or reasonably ascertainable to the Estate. It is clear from our review that the circuit court merely provided background information that it deemed relevant to the issue of whether CMSIH was either known or reasonably ascertainable, and it did not impose requirements on CMSIH that are more stringent than the law provides.
| mVII. “Actual Notice" Must be Served on any Identifiable Creditor with More than a Conjectural Claim
Here, CMSIH primarily argues that the circuit court improperly considered the merits of its claims against the Estate when deciding whether it was entitled to notice. Neither the U.S. Supreme Court nor Arkansas allows for any substantive evaluation of claims when determining whether to provide notice—meaning that an Estate cannot refrain from giving notice to a creditor based on the presumed lack of merit to the creditor’s claim. See Ark. Code Ann. § 28-40-111(a)(4)(A); see also Pope, supra. Thus, we again direct our attention to the circuit court’s order—this time evaluating whether the circuit court improperly considered the merits of CMSIH’s claims when deciding whether it was entitled to notice.
We are not persuaded that the circuit court improperly considered the merits of CMSIH’s claims when determining whether it was a known or reasonably ascertainable creditor. As discussed previously, we are convinced that, when reading the order as a whole, it is clear that the circuit court intended to merely provide a thorough background of the facts relevant to whether CMSIH was a known or reasonably ascertainable creditor.
Inin that vein, we also consider whether the circuit court erred by determining that CMSIH was not a known or reasonably ascertainable creditor. In reviewing this issue, we give due deference to the superi- or position of the circuit court to determine the credibility of the witnesses and the weight to be accorded to their testimony. Whatley, supra. We will not reverse the circuit court’s decision unless it is clearly erroneous. Id.
With this standard in mind, we readily conclude that the circuit court’s decision that CMSIH was not a known or reasonably ascertainable creditor should be affirmed. There is ample evidence to support the court’s decision—not the least of which includes the testimony of Rufus Wolff and Stephanie Pollard that there was no indication that CMSIH was a . creditor of the Estate or sought to assert a claim against it,
VUI. Known or Reasonably Ascertainable Creditors Not Served with Actual Notice Have Two Years to File Claims
Finally, CMSIH asserts that the circuit court erred by finding that its claims were untimely filed. CMSIH alleges that pursuant to Ark. Code Ann. § 28-50-101(h), it had two years to file its claims. However, this point on appeal presupposes that CMSIH was a known or reasonably ascertainable creditor of the Estate and was entitled to service of notiee. For the reasons discussed previously, we have concluded that the circuit court did not err by finding that CMSIH was not a known or reasonably ascertainable creditor of the Estate. Therefore, its claims had to have been filed within the six-month time limit imposed by Arkansas Code Annotated § 28-50-101(a)(1), and the circuit court did not err by denying its claims as untimely.
| ^Affirmed.
Vaught and Brown, JJ., agree.
. Prior to his death, Wilson was the owner of the Wilson Law Firm.
. There are limited instances where the U.S. Supreme Court contemplates that notice is unnecessary. It has held that it is reasonable to dispense with actual notice to those with mere “conjectural claims” as opposed to those with “conceivable claims.” Pope, supra. (citing Mullane v. Central Hanover Bank & Trust, Co., 339 U.S. 306, 317, 70 S.Ct. 652, 94 L.Ed. 865 (1950)). In its brief, CMSIH asks this court to hold that all potential claimants—whether they have conceivable or conjectural claims—are entitled to actual notice. CMSIH conceded this point at oral argument, but even if the issue were still contested, we would refuse to address it. Although this issue was raised in pleadings before the circuit court, the circuit court did not rule on it, and it is an appellant's responsibility to obtain a ruling to preserve an issue for appeal. TEM-CO Const., supra.
. With these conclusions reached, we need not consider the Estate’s alternate argument in favor of affirmance. | [
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RITA W. GRUBER, Judge
bBobby Lee Robinson was charged in the Circuit Court of Washington County as a habitual offender with one count of sec ond-degree sexual assault. He was convicted by a jury and was sentenced to thirty years in the Arkansas Department of Correction and a fíne of $15,000. He now appeals, raising three points. He contends that (1) the trial court violated his right to present a defense by excluding evidence that he had threatened to tell the victim’s mother that the victim was sexually active with her boyfriend, (2) there was insufficient evidence to support the conviction, and (3) the court erred in admitting into evidence prior statements he (Robinson) had made about the size of the victim’s breasts. We affirm.
The State charged Robinson with committing second-degree sexual assault by engaging in sexual contact with the victim, either by forcible compulsion or when she was incapable of giving consent, by putting his penis in her hand and ejaculating on her hand and bedding. Under Arkansas Code Annotated section 5-14-125(a), a person commits sexual 12assault in the second degree if the person:
(1) Engages in sexual contact with another person by forcible compulsion; [or]
(2) Engages in sexual contact with another person who is incapable of consent because he or she is:
(A) Physically helpless;
(B) Mentally defective; or
(C) Mentally incapacitated!.]
Ark. Code Ann. § 5-14-125(a) (Repl. 2013). “Sexual contact” is “any act of sexual gratification involving the touching, directly or through clothing, of the sex organs, buttocks, or anus of a person or the breast of a female.” Ark. Code Ann. § 5-14-101(10).
The trial court conducted a pretrial hearing on two motions: a motion by Robinson to admit evidence that could be barred by the rape-shield statute and a motion by the State to admit testimony that he had made remarks of a sexual nature to the victim before the date of the alleged offense. At the conclusion of the hearing, Robinson’s motion was denied. The State’s motion was granted, and testimony of the remarks was presented at trial.
Sufficiency of the Evidence
Preservation of an appellant’s right to freedom from double jeopardy requires a review of the sufficiency of the evidence before a review of trial errors. Dillon v. State, 317 Ark. 384, 388, 877 S.W.2d 915, 917 (1994). The reviewing court determines if there is substantial evidence to support the verdict. Id. Evidence is substantial if, when viewed in the light most favorable to the appellee, it is of sufficient force to compel reasonable minds to reach a conclusion and to pass beyond suspicion or conjecture. Id.; Brown v. State, 374 Ark. 341, 343, 288 S.W.3d 226, 228 (2008). Evaluating a witness’s credibility and resolving inconsistencies in the evidence are issues for the jury. Id. Even the uncorroborated testimony of a child victim may constitute substantial evidence supporting a guilty verdict for a sexual offense. Id. The jury may resolve conflicting testimony and inconsistent evidence and may choose to believe the State’s account of the facts. Sera v, State, 341 Ark. 415, 439, 17 S.W.3d 61, 76 (2000). Only the evidence supporting the verdict will be considered on appeal. Id. at 434, 17 S.W.3d at 73.
Applying the proper standard of review, we now examine the evidence that supports the verdict in this case. Robinson intermittently stayed overnight in the home of the victim’s family and helped them out. He and the victim’s mother were friends but not romantically involved, and the children in the household called him “Bob” or “Daddy,” He was at the house the first weekend of November in 2013 when the family was insulating windows with plastic.
S.L. testified that, when she was fifteen years old, the following events occurred on the weekend at issue. She was balanced on a step stool by a window and needed no help, but Robinson put his hand on her lower back and bottom and moved his hands lower and lower—actions that made her uncomfortable. She went to bed alone in her room that night, and Robinson went to another bedroom. She was awoken around 3:00 a.m. by her hand “going back and forth” in the air, and she looked up to see him leaning into the side of her bed. She testified,
I asked him what he was doing and at that moment I jerked my hand away. He jerked it back making my hand move faster and ejaculated on my hand and on the Rblanket I was [lying] on. And after he was done he said that, sorry, I’m drunk, pulled up his pants and left my room. I looked down and I was like oh my gosh. Went and washed my hand off and went back to my room. A few minutes passed, I don’t know how much. My grandmother had gotten up went to the bathroom. I went in there to her and I told her when it happened. And she asked me if I was sure if I was dreaming. And I was like no it’s in there [on] my [bed], go check. And then he went in the living room [and] sat down on the couch after she had [gone to] my room and checked. And she saw that it was true, went and got my mom.
S.L. testified that she did not touch Robinson’s penis of her own free will. She said that her hand “was on him” and his hand was on top of hers; that when she tried to pull away, he held her hand tighter and made her hand go faster; and that he let go only after he had ejaculated. She also testified that he had commented about her body before this incident—remarking that she had bigger “tits” than the actress on the television show that Robinson, S.L., and one of her sisters were watching.
S.L.’s grandmother, Matilda Chavis, testified that she slept in a recliner because she was disabled. When she went into the restroom on the night in question, S.L. came in—so hysterical that she wouldn’t talk. Shaking, crying, and holding onto Chavis tightly, S.L. began to tell her what had happened in her bedroom. Chavis went to the bed, looked at the blanket, noticed a wet spot, and felt it; the spot was a slimy substance. She awakened S.L.’s mother, Khristal Lunsford, and told her what had happened.
Lunsford testified that she went to S.L.’s bed to make sure that there was something |fion the blanket. She found the wet spot, several inches in diameter and “right where [S.L.] would have been lying ... beside her ... hip or hand.” Lunsford felt the spot, found it to be “like mucus,” and thought that it was “sperm.” She ordered Robinson to leave the house, and he did. Chavis put the blanket in a plastic trash bag to prevent tampering and put the bag on the couch, where no one “messed with it” before the police arrived.
Detective Matt Ray interviewed Robinson and asked him about the wet spot on the blanket. Robinson told him that the family’s dogs slept with S.L. and were probably the source of the spot. Ray took a DNA sample from Robinson by swabbing the inside of his mouth. The swabs and the blanket were sent to the Arkansas State Crime Laboratory for testing. Forensic serologist Phillip Rains testified that two of the four stains on the blanket were semen: one on the upper left corner of the blanket and the other on the center line. Forensic DNA examiner Maddison Harrell, who compared the semen from the blanket with Robinson’s DNA on the swabs, testified “within all scientific certainty” that the semen was Robinson’s and would be found only once in 143 quintillion times in the Caucasian population.
Robinson moved for a directed verdict after the State rested and after the defense rested without putting on a case. Each time, the trial court denied the motion. Robinson argued to the trial court that he did not sexually touch the victim; rather, S.L. testified that she had touched his penis. He argued that there was no proof of the element of “forcible compulsion”—specifically, there was insufficient proof of physical force and no proof that he threatened to kidnap the victim, and the State did not prove that she was physically helpless. |(iRobinson now argues that the only evidence of a sexual act was the semen on S.L.’s blanket, that testing did not reveal how old the semen was, and that no evidence tied it to S.L.—who could have simply found the blanket and made up a story. He also argues that the State failed to put on evidence of forcible compulsion or that S.L. was physically helpless.
The denial of a motion for directed verdict is treated as a challenge to the sufficiency of the evidence. Jeffries v. State, 2014 Ark. 239, at 3, 434 S.W.3d 889, 893. A party is bound by the scope and nature of his or her directed-verdict motion and cannot change the grounds on appeal; appellate review is limited to those grounds that were presented to the trial court. Plessy v. State, 2012 Ark. App. 74, at 3—4, 388 S.W.3d 509, 513; Holt v. State, 2011 Ark. 391, at 7, 384 S.W.3d 498, 504. The only arguments that Robinson made in his directed-verdict motion and raises on appeal are those concerning the elements of forcible compulsion and physical helplessness.
“Forcible compulsion” is defined as “physical force or a threat, express or implied, of death or physical injury to or kidnapping of any person.” Ark. Code Ann. § 5-14-101(2) (emphasis added). “Physical force” means any bodily impact, restraint or confinement. Dillon v. State, 317 Ark. 384, 389, 877 S.W.2d 915, 917 (1994). The test for determining whether there was force is whether the act was against the will of the party on whom the act was committed. Mosley v. State, 323 Ark. 244, 249, 914 S.W.2d 731, 734 (1996). Here, S.L. testified that she had pulled her hand away from Robinson’s penis when she became aware of what was happening and that he had placed her hand back on his penis and held it there until he ejaculated. We hold that this testimony constituted substantial proof of the element |7of forcible compulsion.
A person is “physically helpless” when unconscious, physically unable to communicate a lack of consent, or rendered unaware that a sexual act is occurring. Ark. Code Ann. § 5-14-101(7), A sex-crime victim who is asleep during a sexual act is physically helpless because she is unconscious and cannot give consent. E.g,, Wilson v. State, 2012 Ark. App. 566, at 4, 2012 WL 4833808. Here, S.L. testified that her hand was already on Robinson’s penis when she woke up. Thus, she was asleep and could not consent when the act began, which satisfies the element of physical helplessness.
Denial of Robinson’s Motion to Admit Evidence of the Victim’s Motive to Lie
Robinson contends that the trial court violated his right _ to present a defense by excluding evidence that he had threatened to tell Lunsford that S.L. was sexually active with her boyfriend. Under our rape-shield statute, “evidence of specific instances of the victim’s prior sexual conduct ... is not admissible by the defendant ... to attack the credibility of the victim, to prove consent or any other defense, or for any other purpose.” Ark. Code Ann. §' 16-42-101(b) (Repl. 1999). An exception may be granted when the circuit court makes a written determination at an in camera hearing that such evidence is relevant to a fact in issue and that its probative value outweighs its inflammatory or prejudicial nature. Ark. Code Ann. § 16-42-101(c)(2)(C). The statute’s purpose is to shield victims of rape or sexual abuse from the humiliation of having their sexual conduct, unrelated to the charges pending, paraded | «before the jury and the public when such conduct is irrelevant to the defendant’s guilt. Jackson v. State, 368 Ark. 610, 614, 249 S.W.3d 127, 129 (2007). The trial court is vested with, a great deal of discretion in determining whether the evidence is relevant, and the appellate court will not overturn the trial court’s decision unless it constitutes a clear error or a manifest abuse of discretion. Id.
Robinson filed a pretrial motion and brief to introduce evidence of S.L.’s prior sexual conduct pursuant to Arkansas Code Annotated section 16-42-101. He asserted that on November 1, 2013, he overheard a sexually explicit conversation between S.L. and her boyfriend; confronted her; gave her a three-day deadline to tell Lunsford that she (S.L.) was sexually active; and said that he would tell Lunsford if S.L. did not. Robinson asserted that S.L. reported the incident at issue the night before the three-day period was to expire. He also asserted that Lunsford had previously forbidden her older daughter from seeing a boyfriend because they were sexually active and that S.L. did not want the same punishment. Robinson stated that the purpose of this evidence was twofold: showing the victim’s motive to fabricate the allegation against him and. showing an independent source of her knowledge of intimate sexual matters and functioning. He claimed that a denial of his right to.present the evidence would violate his constitutional right to present a defense.
At the in camera hearing, Robinson testified that he had given S.L. the three-day deadline to tell Lunsford about what he had allegedly overheard.- The court denied his motion to allow evidence of S.L.’s alleged sexual conduct, stating that to admit it would violate the rape-shield statute’s intent that evidence of a victim’s sexual conduct is inadmissible |9to attack the victim’s credibility, to establish a defense, or for any other purpose. The court' stated that Robinson had not presented independent evidence to corroborate the evidence, that the court would allow his proffer at the end- of the hearing, and that Robinson would have difficulty establishing knowledge that S.L. had not told her mother about the matter. The court did not address Robinson’s argument that he was denied his constitutional right to present a defense.
Robinson relies on Marion v. State, 267 Ark. 345, 590 S.W.2d 288 (1979), a decision by our supreme court soon after our rape- shield statute was enacted. Marion’s defense to rape was that he and the victim did not have sexual intercourse on the alleged occasion. He proffered evidence that the victim falsely accused him because she had threatened to “get even” in their fight over his contracting a venereal disease from her. 267 Ark. at 348, 590 S.W.2d at 290. The Manon court held that under those circumstances, the victim’s bias, prejudice, or ulterior motive for filing the charge was relevant to whether the alleged act of sexual intercourse actually occurred and that the probative value of the evidence outweighed its inflammatory or prejudicial nature.
Subsequent to the Manon decision, our supreme court emphasized that evidence of a victim’s motive or bias is admissible only when it is relevant and its probative value outweighs its prejudicial nature. Jackson v. State, 368 Ark. 610, 249 S.W.3d 127 (2007). The Jackson court found that the defendant’s proffered evidence was barred by the rape-shield statute and lacked any relevance to the question of guilt—specifically, the fact that the victim “had sexual intercourse with a boy her own age” was not related to whether Jackson had “engaged in | ^inappropriate sexual behavior with the minor victim.” 368 Ark. at 615, 249 S.W.3d at 130. Likewise, in the present case, any explanation of S.L.’s motive to lie was irrelevant in light of the evidence that Robinson’s wet semen was on her bed on the night of the alleged incident. The trial court was well within its discretion to reject Robinson’s motion to present evidence about S.L.’s relationship with her boyfriend. Moreover, the evidence he wanted to offer was irrelevant and did not account for the presence of his semen. We cannot say that the trial court abused its discretion by excluding the evidence that Robinson sought to admit; therefore, no error occurred.
Admission of Evidence that Robinson Had Made Sexual Remarks to the Victim
Robinson contends that the trial court erred in admitting the State’s evidence that, before allegedly committing the act of second-degree sexual assault, he had made statements to S.L. about the size of her breasts. The State filed its motion in limine to admit the evidence under Arkansas Rule of Evidence 404(b):
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Ark. R. Evid. 404(b) (2016). The State argued that evidence of Robinson’s remarks was admissible to prove his state of mind and sexual proclivity for the victim, to corroborate the victim’s testimony, to bring to light the entire circumstances surrounding the crime, and to refute the defense asserted. Robinson responded that the alleged statement, although “uncouth,” did not demonstrate a depraved sexual instinct and that its prejudicial effect outweighed its probative value. Without stating a basis for its ruling, the trial court granted In the State’s motion to allow the testimony.
Evidence is not admissible under Rule 404(b) simply to show a prior bad act. Lard v. State, 2014 Ark. 1, at 6-7, 431 S.W.3d 249, 258. Rather, the test for admissibility under Rule 404(b) is whether the evidence is independently relevant: it must have a tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Id. Evidence of circumstances that explain the act, show motive, or illustrate the accused’s state of mind may be independently relevant and admissible. Id. at 9, 431 S.W.3d at 259.
Pursuant to Arkansas Rule of Evidence 403, “[evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice[.]” Thus, a trial court may refuse to admit evidence that is unfairly prejudicial to the defendant, even if it might be relevant. E.g., Lard, 2014 Ark. 1, at 7, 431 S.W.3d at 258. Evidence offered by the State, although likely to be prejudicial to the accused, should not be excluded unless the accused can show that it lacks probative value in view of the risk of unfair prejudice. Id. The admission or rejection of evidence under Rule 404(b) is committed to the sound discretion of the trial court, and the appellate court will not reverse absent a showing of manifest abuse of discretion. Id. Likewise, the balancing mandated by Rule 403 is a matter left to a trial court’s sound discretion, and the appellate court will not reverse the lower court’s ruling absent a showing of manifest abuse. Id. Abuse of discretion is a high threshold that does not simply require error, but requires that the trial court act improvidently, thoughtlessly, or without due consideration. Id.
|12We agree with the State that S.L.’s testimony that Robinson had crudely commented on the size of her breasts showed that he had noticed her in a sexual way. His awareness of her physical development and his comparing her to an actress was relevant to allow the jury to infer that he had a sexual attraction to S.L.—a circumstance that illustrated his state of -mind with regard to her and thus was admissible under Rule 404(b). Robinson has not demonstrated that the testimony’s prejudicial effect outweighed its probative value under Rule 403. We hold that the trial court did not abuse its discretion in allowing S.L. to testify about his comment to her about her breasts.
Affirmed.
Harrison and Hoofman, JJ., agree.
. The abstract of appellant’s brief is replete with spelling errors, which we have silently edited when possible. The words "on my bed” are abstracted as "all my bad,” making the testimony almost nonsensical. We remind counsel that the abstract shall be a condensation of information in the transcript that is essential for us to understand the case and decide the issues on appeal. Ark. Sup. Ct. R. 4—2(a)(5) (2016).
. The State points out that Arkansas Rule of Evidence 411 contains the relevant text of the statute. | [
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BRANDON J. HARRISON, Judge
[ iJane Sexton, as personal representative of the estate of Harold Planchón, appeals the denial of duty-related disability benefits to her late husband. The Arkansas Local Police and Fire Retirement System (LOPFI) found that Planchón had failed to prove a causal relationship between his disability (colon cancer) and his employment as a firefighter and instead awarded him nonduty disability benefits. The LOP-FI Board of Trustees (the Board) confirmed this decision. Now, Sexton argues that the Board used an incorrect standard to decide whether Planchon’s work environment was linked to his disease. We reverse and remand for further proceedings.
Planchón became an employee of the Spripgdale Fire Department in the spring of 1987. During his employment, Planchón not only fought fires but also investigated their origins and causes and worked on the Hazmat team. Planchón was diagnosed with colon bcancer in March 2009 but worked until 2011. In April 2011, the Occupational Health and Safety Division of the Arkansas Department of Labor investigated an allegation that the Springdale Fire Department lacked ventilation systems to prevent exposure to carbon monoxide when the engines were running in the bays. The investigation revealed a number of hazards, including the lack of proper ventilation. In August 2011, the Springdale Fire Department installed ventilation systems in all of its fire stations.
Planchón applied for duty-related disability retirement in June 2011, contending that his cancer was caused by occupational exposure as a firefighter. In deciding his claim, LOPFI considered a number of documents and reports, including physician’s statements of disability from Dr. C.R. Magness, Dr. Terryl Ortego, and Dr. Dan Bradford. In response to the question, “In YOUR opinion is the described disability the result of the LOPFI Member’s duties as a police officer or firefighter?” all three doctors circled ‘YES.” In March 2012, Dr. Samuel Pelk, an occupational-medicine resident with the International Association of Firefighters, opined that “[t]he occupational exposures'of fire fighters put them at increased risk for several cancers, including colo-rectal cancer. This, along with Mr. Planchon’s lack of typical risk factors for cancer, suggests that his occupational exposure was a risk factor for his metastatic adenocarcinoma.” When asked to provide additional thoughts on Planchón in April 2012, Dr. Bradford noted a
significant body of research on firefighter exposure to carcinogens, not only associated with the actual fire suppression and overhaul activities, but also associated [with] the chronic exposure to diesel fumes within the firehouse itself. ... [The] data shows that firefighters have a 21-36% increased incidence of Colon Cancer compared to the general healthy working population, with the only obvious difference being them occupational exposure history. ... While no one can absolutely state that Mr. Planchon’s | ¡¿workplace exposures to carcinogens directly caused his Colon Cancer, the compelling data on this association can not and should not be ignored.
Dr. Ortego further stated in a separate letter dated 10 July 2012 that it was his opinion that “exposure to carcinogens and diesel fumes is the direct cause of [Plan-chon’s] colonic cancer.” A third physician, Dr; Magness, also opined in July 2012 that “Mr. Planchon’s work conditions potentially led to his disease process.” Finally, Dr. Kimberly Agee, who examined Planchón in July 2012, stated that “Mr. Planchon’s early-onset, aggressive colon carcinoma is a result of his service as a firefighter.”
LOPFI also considered a report from Dr. Balan Nair, an oncologist retained by LOPFI, who opined,
Mr. Harold Planchon’s young age at onset, his lack of other risk factors, his prolonged exposure to carcinogens and some studies which have shown an association between a long work history as a firefighter and colon cancer, it is my opinion that these circumstances make it plausible that Mr. Planchon’s colon cancer was caused by his occupational exposure to carcinogens. Although this is plausible, this does not establish a definite causation.
LOPFI agreed that Planchón was totally and permanently disabled from firefighting activity but, citing Dr. Nair’s report, concluded that he “was not able to establish firefighting employment as the definite cause of the disability i.e. the colon cancer.” LOPFI reasoned that
[w]hile some studies have shown an occupational relationship between colon cancer and firefighting, and the LOPFI medical advisor opined that it is plausible that these work exposures caused the cancer, the medical advisor also advised that this plausability does not establish employment as the definite origin of the cancer. ... Because the medical advisor could not definitively opine the colon cancer was the result of LOPFI-covered employment, the system will award you a non-duty disability benefit.
|4LOPFI also noted that in Planchon’s case, there was no monetary difference in the monthly benefit payment amount for a nonduty disability benefit as compared to a duty disability benefit payment.
Planchón requested an administrative appeal hearing before the Board, which was held in December 2012. After taking testimony and reviewing all the documents submitted by Planchón in support of his claim, including the doctors’ reports, the Board announced at the conclusion of the hearing:
We feel like that [sic] you have not been able to confirm the cause of your cancer to a sufficient degree to satisfy the requirement of establishing a duty relationship. The doctors’ opinion[s] that it was duty related do nothing more than draw a conclusion based upon statistical—based upon- statistical information that there was an increased risk. Nothing concrete that can firmly establish that causal relationship was provided. Specifically, your treating oncologist said in an April 16, 2012 letter, “While no one can absolutely state that Mr. Planchon’s workplace exposes [sic] to a carcinogen directly caused his colon cancers [sic], the compelling data on this association cannot and should not be ignored.” The board upholds the decision to award non-duty disability retirement benefit and denies the claim for a duty disability benefit.
Planchón appealed to the Washington County Circuit Court, which affirmed the Board’s decision in August 201B,
Planchón filed a notice of appeal with this court; however, Planchón passed away on 11 April 2014, before the case was submitted. In June 2014, Planchon’s attorney filed a motion for revivor and substitution of parties, requesting that Jane Sexton, Planchon’s widow and personal representative of his estate, be substituted for Planchón as the proper appellant on appeal. This motion was certified to the Arkansas Supreme Court, which took the motion as a ease in August 2014. In April 2015, the supreme court issued an opinion holding that there is no rule or statute in place that would allow the appellate court to revive and substitute the appellant. Planchon v. Local Police & Ret. Sys., 2015 Ark. 131, 458 S.W.3d 728. Instead, the supreme court remanded the case to the circuit court, and in December 2015, the circuit court granted the revivor and substitution of parties.
Our review of an appeal under the Administrative Procedure Act is directed, not toward the circuit court, but toward the decision of the agency. See Ford Motor Co. v. Ark Motor Vehicle Comm’n, 357 Ark. 125, 161 S.W.3d 788 (2004). Our review of administrative decisions is limited in scope; when reviewing such decisions, we uphold them if they are supported by substantial evidence and are not arbitrary, capricious, or characterized by an abuse of discretion. See id.
Substantial evidence is defined as “valid, legal, and persuasive evidence that a reasonable mind might accept as adequate to support a conclusion, and force the mind to pass beyond conjecture.” Ark. State Police Comm’n v. Smith, 338 Ark. 354, 362, 994 S.W.2d 456, 461 (1999). The challenging party must prove an absence of substantial evidence, which means he must demonstrate that the proof before the administrative tribunal was.so nearly undisputed that fair-minded persons could not reach its conclusion. Id. In other words, the question is not whether the testimony would have supported a contrary finding but whether it supports the finding that was made. Id.
Arkansas Code Annotated section 24-10-607(c)(l)(A) (Repl. 2014) provides the legal standard that Planchón (now Sexton) had to meet to receive duty-disability benefits:
Any active member who'while an active member becomes totally and permanently physically or mentally incapacitated for any suitable duty as an employee as the result of a personal injury or disease that the board finds to have arisen out of and in the course of his or her actual performance of duty as an employee may be retired by the board upon proper application filed with the board by or on behalf of the member or former member.
6Emphasis added.) Sexton asserts that it was undisputed that Planchón was exposed to carcinogens on a -daily basis during his twenty-four years of employment with the Springdale Fire Department and that firefighters have a higher risk of developing cancer because of that exposure. She also argues that pursuant to § 24-10-607(c), Planchón was only required to prove that his disability arose out of and in the course of his employment; in other words, he was only required to show a “causal connection” between his disability and.his employment. See, e.g., Pilgrims Pride Corp. v. Caldarera, 54 Ark. App. 92, 94, 923 S.W.2d 290, 291 (1996) (explaining that “arising out of the employment” refers to the origin or cause of the accident while the phrase “in the course of the employment” refers to the time, place, and circumstances under which the injury occurred).
Citing the opinions of Drs. Ortega and Agee, Sexton argues that the medical opinions of the doctors who treated Planchón established that his cancer was proximately caused by his employment; the Board, however, “incorrectly ignored” these opinions and relied solely on the opinions of Dr. Bradford and Dr. Nair in denying his duty-related disability claim. Sexton also contends that the Board erroneously required a physician “to couch opinion evidence in terms of ‘100 percent’ or ‘absolute certainty.’ ” But, in the context of workers’ compensation law, our supreme court has stated:
This court has never required that a doctor be absolute in an opinion or that the magic words “within a reasonable degree of medical certainty” even be used by the doctor. Rather, this court has simply held that the medical opinion be more than speculation. For example, in Howell v. Scroll Technologies, 343 Ark. 297, 35 S.W.3d 800 (2001), the opining doctor stated that his patient’s exposure at work to a coolant mist was at least fifty-one percent the cause of her respiratory problems. We held that that opinion fell within the standard of a reasonable degree of medical certainty. Accordingly, if the doctor renders an opinion about causation with language that goes beyond ^possibilities and establishes that work was the reasonable cause of the injury, this should pass muster.
Freeman v. Con-Agra Frozen Foods, 344 Ark. 296, 303, 40 S.W.3d 760, 765 (2001) (emphasis added). See also Rose Care, Inc. v. Ross, 91 Ark. App. 187, 202, 209 S.W.3d 393, 402 (2005) (“Even in medical-malpractice cases proximate cause may be shown from circumstantial evidence, and such evidence is sufficient to show proximate cause if the facts proved are of such a nature and are so connected and related to each other that the conclusion may be fairly inferred.”).
LOPFI concedes that Planchón was exposed to carcinogens as a firefighter but argues that his medical history also revealed several other risk factors. LOPFI also agrees that “there are studies in the record theorizing that exposure to carcinogens by a firefighter creates an ‘increased risk’ of cancer,” but also says that causation is the primary issue in this case and that Planchón failed to connect the dots. LOPFI argues that Planchón wanted the Board to “make a quantum leap” in deciding that an “increased risk” was sufficient to prove causation.
LOPFI strongly disagrees that the Board required absolute certainty to establish causation. The Board explained that “the doctors’ opinions that it was duty related do nothing more than draw a conclusion based upon statistical information that there was an increased risk.” Finding “nothing concrete that can firmly establish that causal relationship,” the Board upheld the agency’s decision.
We agree that the Board required more than the statute requires in terms of proof of causation. According to the statute, Planchón had to show that his disability, meaning his cancer, had “arisen out of, and in the course of,” his employment. Ark. Code Ann. § |s24-10-607(c)(l)(A). And while “arisen out of’ has not been defined in the context of this particular statute, it generally means that one must show a “causal connection,” as explained by our workers’ compensation law:
When the primary injury is shown to have arisen out of and in the course of the employment, the employer is responsible for every natural consequence that flows from that injury. The basic test is whether there is a causal connection between the two episodes. The determination of whether the causal connection exists is a question of fact for the Commission to determine. It is not, however, essential that the causal relationship between the accident and disability be established by medical evidence. A finding of causation in a workers’ compensation case does not need to be expressed in terms of a reasonable medical certainty when there is supplemental evidence supporting the causal connection.
Koster v. Custom Pak & Trissel, 2009 Ark. App. 780, at 3 (internal citations omitted).
In its written order, the Board cites Dr. Nair’s opinion that a “definite causation” had not been established (emphasis added). And in its oral ruling, which was incorporated into the written order, the Board found that Planchón had not “confirmed the cause of [his] cancer to a sufficient degree” and that “[n]othing concrete” had “firmly establish[ed]” a causal relationship. Finally, the Board noted Dr. Bradford’s opinion that “no one can absolutely state that Mr. Planchon’s workplace exposures to a carcinogen directly caused his colon cancer.” (Emphasis added.) Given this record, we hold that the Board required a level of certainty that goes beyond what is required by the statute. We therefore reverse the Board’s decision and remand for further proceedings consistent with this opinion. See Williams v. Johnson Custom Homes, 374 Ark. 457, 288 S.W.3d 607 (2008) (finding that the Commission based its finding on a misconception of the applicable law and remanding for further proceedings).
Reversed and remanded for further proceedings.
9Abramson and Kinard, JJ., agree. | [
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Smith, J.
Appellant was plaintiff below, and, for lier cause of action, alleged the following facts: The defendant corporation operates a hotel in the city of Forrest City known as “The Marion Hotel,” and on July 31, 1922, plaintiff and her husband, J. W. Stevenson, registered there as Mr. and Mrs. J. W. Stevenson, Memphis, Tenn. They paid for their’ accommodations in the usual and customary manner, and, as guests of the hotel, were assigned to a room, which they occupied for the night. On the morning of August 1, 1922, while plaintiff was in the room to which she had been assigned, in company with her husband, the manager of the hotel, ’ the duly authorized agent of the defendant,' came to the room occupied by her as a guest of the hotel, and ordered her out of the room and out of the hotel, using Insulting and abusive language which imputed adultery to the plaintiff, and which caused her great worry pnd distress of mind, and, although she insisted she and Stevenson were legally married — as they, in fact, were — she was ordered out of the hotel by the'manager, who ridiculed her statement that she was the wife of Stevenson. That the manager of the hotel conducted plaintiff and her husband to the lobby of the hotel, and there, in the presence of mumerous people, again abused her and used insulting language towards her, which was calculated to, and did, leave the impression on the minds of those hearing the language used that plaintiff liad been guilty of adultery in defendant’s hotel.
Plaintiff further .alleged that she and Stevenson had been legally married for twenty years, and that she was conducting herself in the hotel in a proper manner, and gave no cause to the manager to abuse or evict her, and that the hotel catered to the public and was held out to the public as furnishing accommodations to all who should apply in the ordinary and usual manner. That the conduct and action of defendant’s manager in evicting her- from the hotel caused her great worry, humiliation and distress of mind, and was a slander upon her character and virtue, and caused her to be the object of public shame, humiliation and degradation, and exposed her to the ridicule, vulgarity and gossip of all who heard such language and witnessed her eviction from the hotel. She further alleged that the manager’s conduct was wilful, wanton and malicious, and she prayed for damages, both compensatory and punitive.
To this complaint the defendant demurred on the ground that the allegations of the complaint were not sufficient to constitute a cause of action. The demurrer was sustained, and, plaintiff declining to amend or plead further, the complaint was dismissed.
The action of the court below is defended upon the ground that the complaint sues for mental suffering and humiliation alone, unaccompanied by any physical injury or other element of recoverable damages, and we are cited to several decisions of this court holding there can be no recovery in such cases.
Among the cases so cited is that of Chicago, R. I. & P. Ry. Co. v. Moss, 89 Ark. 187, in which the court held that a passenger whose baggage had been carried beyond his destination, and who had suffered an actual loss on that account, could not recover for the mental suffering occasioned by the insulting conduct of 'the employee of the carrier who was responsible, for the miscarriage of the baggage, for the reason that there was no connection between the’ recoverable element and the mental suffering, and the latter could not be sustained as an independent cause of action.
The court in so holding recognized that the physical injury need not be actual in all cases, but might in some cases be constructive, and it was there said: “There are many cases in the books where there is a constructive physical injury, such as duress, ejection from trains, etc., where there is no physical violence, but an actual restraint or coercion of the person. In such cases, and possibly others, it would not be sound to hold that, merely because the finger was not, laid upon the lapel of the coat, there can he no recovery for the wrong done, including the mental suffering resulting from such duress or coerced ejection.”
What was there said is applicable here. There was here a constructive physical injury, for there was an actual restraint and coercion of the plaintiff. In violation of the duty owing to plaintiff, the defendant ejected her from the hotel, and this was a constructive physical injury. The law did not require her to continue her explanations and protestations to the point where the restraint and coercion would have become actual, rather than constructive. When she saw the right to remain in the hotel as a guest would not he accorded her, she had the right to minimize her damages by leaving before actual physical injury was inflicted, and defendant will not be heard to complain that plaintiff obeyed the command of its manager.
The principle applicable is that announced in the cases of Chicago, R. I. & P. Ry. Co. v. Allison, 120 Ark. 54; Hines v. Rice, 142 Ark. 159; and St. Louis-S. F. Ry. Co. v. Smith, 155 Ark. 519.
A cause of action was stated, and the demurrer should have been overruled, and the judgment of dismissal is reversed, and the cause remanded, with directions to overrule the demurrer. | [
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Humphreys, J.
The question for determination on this appeal is whether appellant is liable to appellee for the value of appellee’s cow that died from eating grass on appellant’s rdglit-of-way, which had been sprayed with a poisonous chemical mixture for the purpose of killing it. At the conclusion of the testimony appellant asked for a peremptory instruction, and no other, upon tile theory that the cow was tr-espa.smngfnipnriA3m-xight-of-way, and that appellant owed appellee no duty with reference to his~cow, even though she subsequently died from eating gTassupon which appellant had sprayed poison, with full knowledge that said cow and other cattle were accustomed to graze upon its right-of-way. The court refused to grant the request, but, on the contrary, peremptorily instructed a verdict for appellee, who had requested no instructions. This was, in effect, a submission of the issues of fact to the trial court' by the parties to the action. The verdict is therefore conclusive on appeal to this court, if not contrary to law, and if supported by any substantial evidence.
The record reflects the following facts: At the time the cow ate the grass and died, a special act was in force in Mississippi County prohibiting owners of cattle from allowing them to run out, in which provision was made for impounding cattle running at large. Notwithstanding the law had gone into effect, appellee and his neighbors. residing near Archllion. agreed to allow their"cattle to run at large until the law was enforced. Their cultivated fields were fenced. Appellant’s right-of-way was also fenced, save a short distance .on the west side for entry by the public to the depot and station grounds.
The grass on the right-of-way was good, and cattle in the neighborhood frequently entered the opening, and were in the habit of grazing there, without objection on the part of appellant. On the 14th day of July, 1921, appellant sprayed the right-of-way six or eight feet on each side of the track, from a tank on a slowly moving train, with a chemical mixture, for the purpose of killing the growing weeds and grass on each side of its track. The spraying was done under the supervision of the roadmaster. Not only was it the habit of the cattle to graze on the right-of-way, but during the spraying process five or six of them, then grazing there, fell back out of the way of the spraying tank and returned after the train passed. No warning was given the owners of the cattle of the intention to spray the right-of-way, and no effort was made by appellant to prevent the cattle from grazing upon the poison grass. Appellee’s cow and others in the neighborhood grazed upon the vegetation on the day it was sprayed with the liquid substance, and died with fits, and a greenish foaming from the mouth and nostrils. The poisonous spray wilted and killed everything it touched in the way of vegetation, except sycamore leaves. Little chickens died when they came in contact with it. It was injurious to the skin of human beings.
The facts detailed above are sufficient to support the finding that the chemical mixture sprayed by appellant upon the grass growing upon its right-of-way was a poisonous substance, deadly not only to vegetation but to animals eating the vegetation; also that appellant’s operatives knew that cattle were in the habit of grazing on the right-of-way, and were then grazing, where they sprayed the poison. Appellant’s contention is that its only duty to trespassing cattle was not to invite them upon the right-of-way by placing dangerous, attractive substances thereon; and that it was not liable in damages for spraying poison on vegetation grown on its private property, upon which trespassing animals were then grazing or were accustomed to graze. We are unableX to indulge the nice distinction that the property owner \ may poison uninvited cattle when trespassing on his pri- j vate premises, with impunity, and may not poison tres-y passing cattle, without incurring liability, which were aK tracted thereon by a poisonous mixture. Certainly the\ special stock law did not warrant such a proceeding. It! provided for impounding trespassing animals, not kill.-' • ing them. The result is certainly the same, where one places poison upon an attractive bait and thereby induces domestic animals to come upon its premises and eat thereof until they die, or whether, finding trespassing animals upon his premises, he covers the grass upoli which they are grazing with poison, thereby killing them. In either event, according to our view, he unlawfully killed the cattle. The invitation doctrine, or the doctrine of the turntable cases, in our opinion, has no application to the facts in the instant case, for the very good reason that the poison within itself was not an invitation. • But appellant had knowledge that this and other cows were accustomed to grazing, and were then graz ing, where it sprayed the poison. The mere fact tha^ cattle were trespassing upon the right-of-way did not license appellant to poison them. Certainly appellant owed appellee the negative duty of not knowingly killing his cow. The rule announced by this court in the case of Brinkley Car Company v. Cooper, 70 Ark. 331 (335), on the second appeal, seems to us peculiarly applicable to the facts in this case. Mr. Justice Riddick, in rendering the opinion in that case, used the following-language: “We hold that if the company owning the premises had notice that children had frequented the place-of this pool, or, from the nature of the surroundings, wore likely to do so, and if it careless^ left a pool of hot water there, concealed in such way that one would reasonably expect it to occasion injury to children, the company would be liable for damages to the boy, who, by reason of its concealed nature, walked into the pool of hot water and was burned. The owner of land has a right to use it for any lawful purpose, and this company had a right to operate its manufacturing- plant and empty .the hot water from its boilers on its premises when it became necessary to do so, and, before it can be made liable for an unintentional injury caused to a boy of six years of age by such hot water, two things are necessary; first, it must be shown that the company had notice that the boy or other children were likely to some upon its premises; and second, by reason of the concealed nature of the pool of water, or the want of notice on the part of the children of the condition of the water, injury to them ought to have been foreseen on the part of .the company as a consequence of leaving the pool of water in that condition.” In the instant case the .company had notice that the cattle frequented the place where it was spraying the poison, and that the cattle were grazing there at the time, and should have foreseen that the cattle would be killed, as a consequence of spraying the grass which they were eating, or would eat, with a poisonous mixture.
No error appearing, the judgment is affirmed. | [
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Wood, J.
Tlie William Kelly Milling Company (hereafter called appellee) a corporation of Kansas, engaged in the sale of mill products in this State, purchased of the Eeno Flour Mills Company of Kansas City its plant before the 13th of October, 1920. On the 18th of October, 1920, it also purchased a contract which the Eeno Flour Mills Company had with the Corning Eoller Mills (hereafter called appellant) at Corning, Arkansas, of August 25,1920. Under that contract the Eeno Flour Mills Company agreed to sell to the appellant 310 barrels of “Craftsman” flour at $11.60 per barrel, to be shipped within sixty days. The contract, across its face, carried the following indorsement: “For value received we hereby assign the within contract to the William Kelly Milling Company. Eeno ■ Flour Mills Co., By C. O. Heinley. ’ ’
In the body of the contract, among others, is the following provision: “Contract not subject to change: That there are no conditions, representations, warranties, oral or-otherwise, and that there shall be no assignment or cancellation of this contract, except as herein stated, and that no agent or representative has authority to modify the printed terms of this contract.”
On October 18, 1920, the appellee wrote to the appellant advising the latter that it had purchased its contract with the Eeno Flour Mills Company, and advising the appellant that, unless appellee heard from the appellant to the contrary by wire, appellee would arrange to ship the floür as per appellant’s contract with the Eeno Flour Mills Company. The appellant answered on October 20 and acknowledged the receipt of the letter of the a.n-péllee and stated, among other things, as follows: “We note that yon have control of the Reno mill. In regard, to the flonr that we have hooked with yon for shipment October 25, we do not see how we can use this flour.” Then, after assigning reasons for this action, the letter concludes: “We will have to ask that you cancel our order.” The letter was signed “Corning Roller Mills, by Ed.” On the 23rd of October the appellee wrote the appellant in answer that it had bought high-priced wheat for the purpose of filling appellant’s order, and therefore could not consider cancellation, but would be willing to extend the shipping time thirty days. In answer the appellant wrote appellee as follows: “We are in receipt of your letter of the 23rd, and in reply beg to state im will appreciate it if you, will hold our flour for us thirty days and ship same latter part of November, as you stated.” The appellee in answer 'to the last letter' wrote: “ As requested, we will withhold shipment of your order until the last of this month.” On November 20 the appellant wrote the appellee detailing the financial straits of appellant, and concluded the letter by requesting the appellee to cancel its order. In reply, the appellee stated that it could not cancel the order as requested, but “must insist either upon your accepting the' contract as entered into or make a cash settlement for the difference between the contract price and the price at which we '«muid be obliged to resell the flour, which, on this date, would amount to $914.59. The letter concluded by requesting the appellant to answer by return mail which method it preferred.
After the above correspondence the appellee, through the Miller’s Exchange of Kansas City, Missouri, endeavored to have the appellant accept the order. Appellant wired the exchange on December 4, 1920, “Extend shipping period on car of flour.” On December 6 the appellee again wrote the appellant that they had extended the order for shipment of flour on contract until December 24. On December 25, 1920, appellant wired appellee stating, “Just received notice you were ship. ping us car of flour,” and further stating that it could not handle the car just then, and asking appellee to divert it, as it would be left in the hands of the railroad on arrival. Appellant also on that day wrote appellee telling it that it should not have loaded the car without ascertaining whether the appellant would take up the draft $ind unload the car. On December 27, 1920, the appellee wrote to the appellant that it had sent forward the car on the 25th, and that the matter was now out of its hands. The appellant in answer wired the appellee that the car would he refused on arrival.
This action was instituted by the appellee against the appellant. The appellee, in its complaint, set up the contract and the purchase thereof by it, and alleged that, for valuable consideration, it was assigned to the appel-lee by consent of the appellant, and that the appellant was due the appellee the sum of $725.15 for loss growing out of breach of the contract. The appellant answered, and admitted that they had entered into a contract with the Reno Flour Mills Company, but alleged that such contract was not assignable, and denied that it had consented to'the assignment, and denied any liability to the appellee.
The appellee introduced the correspondence by letter and telegram as above set forth. A witness for the appel-lee testified that it had sustained a loss of $725.15 by reason of the refusal of appellant to accept the flour. One of the witnesses for the appellee (Anderson) testified that he was agent of the appellee, and as such on-December 3, 1920, went to Corning, Arkansas, for the purpose of settling the controversy between appellant and the ap-pellee. He talked with Bennett, one of the members of the firm of the appellant, and Bennett told witness that at that time ho could not take any of the flour; that they then had too much on hand. "Witness asked Bennett what date the appellee could ship the flour, and Bennett replied that he could take care of it along about the 20th of December, and it was agreed that the 24th should be the date of shipment.
D. L. 'Bennett testified, on behalf of the appellant, that he was a member of the firm. He stated that he didn’t know anything about the letters introduced in evidence by the appellee referring to the alleged assignment to the appellee of the appellant’s contract with the Reno Flour Mills Company. He denied that he had any knowledge of letters purporting to have been written by the appellant to the appellee requesting the latter to hold the flour order for appellant and ship the same the latter part of November, as stated in one of the letters. Witness never wrote such a letter, and didn’t authorize any one else to write a letter to that effect. Witness admitted having a conference with Anderson, but denied that he had told Anderson that he would accept the flour. The appellee sent witness a contract to sign, but he refused to sign the same.
Anderson also was called as a witness for the appellant, and identified a letter written by the appellee to the appellant of January 5, inclosing new contracts for appellant to sign, and suggesting to appellant that, instead of extending the time on the original contract, it would be better to cancel that and enter into a new contract dated as of January 5, to run for sixty days.
Beard testified that he and Bennett were the partnership composing the firm of appellant. He testified that he did not authorize any one to sign the letter purporting to be the letter of his firm dated October 29, 1920, requesting the appellee to hold the flour for appellant for thirty days, and to ship the same the latter part of November. He stated that “Ed,” who signed the letter, was Ed Stevens, and that witness gave him no authority to write any such letter. He further stated that he (Beard) had nothing to do with running the business; that the same was under the control of D. L: Bennett; that Stevens was the general roustabout. Ben nett either did the correspondence for the firm or-told “Ed” to write, when he wanted to.
Bennett was rcalled, and stated that Stevens was salesman for the appellant; that he had no right to make a contract binding the partnership.
Stevens testified in rebuttal, on behalf of the appel-lee, that he wrote the letter of October 29th, and admitted that he wrote other letters. He stated that if he wrote letters he would sign them “Ed.” He did not consult Bennett when he wrote letters. Bennett had objected to witness writing letters. Witness did a little office work, selling goods, waiting on the trade, and also collecting and keeping books some. He stated that he had no authority or instruction from any member of the firm to write the letter of October 29th.
The above sets forth the salient features of the testimony. The appellant asked the court to instruct the jury to return a verdict in its favor, on the ground that the contract which is the foundation of the action is in writing and unassignable. The court refused this prayer.
The appellant offered instructions numbered from two to nine, inclusive, in which it sought to have the court tell the jury that the contract was unassignable, and that if this provision were waived it must be done in writing and with a full knowledge of all the facts, and with the intention to waive such provision; that the terms of the contract could not be changed by parol; that the appellant must have contracted with the appellee and agreed to accept the Hour included in the contract from the appellee; that the appellant, after knowledge that the appellee was claiming to be the owner of the contract, must have done some act or made some contract or agreement with the intention, at the time, of ratifying the assignment of the original contract to the appellee.
The court refused appellant’s prayers, and granted prayers of the appellee to the following effect: That if appellant entered into a contract with the Reno Mills Company, and that contract was assigned to the appellee, and the latter notified the appellant of such assignment, and if the appellant ratified the assignment by requesting further time for the delivery of the flour under the contract, and further time was granted by the appellee, then appellant would be bound by the contract. And further, if the appellee shipped the flour in accordance with the contract between the Beno Mills Co. and the appellant, if there was a contract between them, and appellant refused to accept the flour, and appellee suffered a loss thereby, the verdict should be in favor of the appellee for such loss.
The court also, on its own motion, instructed the jury that, if Ed Stevens was the agent of the appellant, and appellant had received notice from the appellee of the assignment of the contract, and knew, after receiving such knowledge, that Stevens had written the letter of October 29, 1920, and did not within a reasonable time disavow such letter, then the jury should find for the appellee, unless Stevens wrote the letter without knowledge of the facts relating to the negotiations between the appellant and the appellee in regard to the contract and its assignment.
The court further instructed the jury that if Stevens, when he wrote the letter of Oct. 29, 1920, had authority to write the same, or if he had authority of Bennett to write the same, or if he had authority to act for the defendant generally, or if, in writing the letter, he acted within the apparent scope of his authority, but did not have special or general authority to write the letter, then appellant would be bound by the letter, if Stevens knew all the facts connected with the negotiations between appellant and appellee concerning the matter.
The court further told the jury that, in reaching a conclusion as to whether the appellant assented to. the assignment, if there was an assignment, they should consider all the evidence introduced, including all the correspondence between appellant and the appellee, and all acts of the parties. If they found that the appellant assented to the assignment, then the verdict should be in favor of the appellee, but if appellant did not assent, the verdict should be in favor of the appellant. The jury returned a verdict in favor of the appellee in the sum of .$629.30. Judgment was entered in favor of the appel-lee for that sum, from which is this appeal.
1. The appellant contends that there was -no testimony to prove that appellant consented to the alleged assignment by the Reno Flour Mills Company to the ap-pellee of the contract between the appellant and the Reno Company. We cannot concur with learned counsel in this view of the evidence. The contract itself, by the indorsement across its face, shows that it was assigned, and it was proved that it was assigned for a valuable consideration. It was proved that this was made by the Reno Flour Mills Company and accepted by the appellee». Without reiterating and discussing the evidence, suffice it to say the correspondence between the appellant and the appellee shows that appellant, with frill knowledge that the assignment had been made, ratified the same by recognizing the binding effect of the contract and asking the appellee to cancel the same, or, if it would not cancel the same, to indulge appellant in the matter of exténding the time for shipment. Appellant repudiates the letters on the ground that they were not written by the authority of the appellant. But the issue as to whether or not Stevens, who signed his name to the letters as “Ed,” had authority to do so, was, under the evidence, one for the jury. That issue was submitted to the jury under correct declarations of law.
The contract was not of a special personal nature, and therefore unassignable. It was for the sale and purchase of “Craftsman”'flour, and the flour that was shipped was that kind of flour. “When a bilateral contract, still executory on both sides, is spoken of as assignable, it can mean no more than that performance of the duties can be delegated and that the right can be assigned.” 1 Willistoii on Contracts, 779. But, conceding, for the purpose of the opinion, that the contract contains a provision prohibiting its assignment, the provision nevertheless was one which the appellant could, and did, waive by the alleged letters which it wrote to the appellee above set forth. See also Todd v. Griffin, 55 Ind. App. 605; Griggs v. Landis, 21 N. J. Eq. 490; Staples v. Sommerville, 176 Mass. 237; also 5 C. J. 989.
2. Learned counsel for the appellant presents various other assignments of error in connection with the rulings of the court in granting and refusing prayers for instructions. We have carefully examined these, and find that the court’s charge, when taken as a whole, is free from error, and it would unduly extend this opinion to discuss these rulings in detail, and could serve no useful purpose, as a precedent, to do so.
The most important issue is whether or not the appellant consented to or ratified the alleged assignment of the contract, which is the foundation of this action. That issue, as we have seen, was fully and fairly submitted to the jury by the trial court, and, since there was testimony legally sufficient to sustain it, the verdict is' conclusive here. The judgment is therefore in all things correct, and it is affirmed. | [
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Hart, J.
S. B. Locke & Company sued C. E. For-rester and others to recover damages for tbe breach of an implied warranty of quality of forty-four bales of cotton bought by the for.ro.er from the latter. The plaintiffs recovered judgment in the circuit court against the defendants, and upon appeal to tliis court the judgment was reversed because the lower court erred in holding that the undisputed evidence showed that S. B. Locke & Company was a partnership at the time of the purchase of the cotton.
One of the defenses to the case was that S. B. Locke & Company was a foreign corporation, and was doing business in the State of Arkansas contrary to the provision of our statute. Hence the materiality of the issue as to whether S. B. Locke & Company was a foreign corporation or a partnership.-
Because of the error in the circuit court in holding 'that the undisputed evidence showed that S. B. Locke & Company was a partnership, the judgment was reversed and the cause was remanded for a new trial. Forrester v. Locke, 149 Ark. 225.
1 Upon the-remand of the case and the retrial thereof in the circuit court, the question of whether or not S. B. Locke & Company was a foreign corporation doing business in this State without complying with our statute, was submitted to the jury. The jury returned a verdict in favor of the defendants, and the plaintiffs have duly prosecuted an appeal to this court.
The only assignment of error is that the court erred in not telling the jury that, under the undisputed evidence in the case, S. B. Locke & Company was a partnership. S. B. Locke & Company did not claim to have complied with our statute relative to foreign corporations doing business in this State, and it would be necessarily prejudicial to their rights if the court erroneously submitted to the jury the question of whether S. B. Locke & Company was a partnership, as claimed by the ■ plaintiffs, or whether it was a foreign corporation, as claimed by the defendants.
Counsel for the defendants insist that the holding of this court on the former appeal, that the undisputed pvi- dence did not show that S. B. Locke & Company was'a partnership at the time it purchased the cotton is the law of the case, and is conclusive of that question upon this appeal.
We do not agree with counsel in this contention. Of course it is well settled in this State that, if a cause be appealed to the Supreme Court, and the judgment be reversed, and the cause remanded to the circuit court for a new trial, and a second appeal be taken, it brings up for review nothing but the proceedings subsequent to the reversal.
It is equally well settled that the decision of the Supreme Court rendered upon a given state of facts only becomes the law of the case as applicable to the same facts, and if the cause be remanded for a new trial, the parties have the right to introduce new evidence and establish a new state of facts. When this is done, the decision of the Supreme Court upon the former appeal ceases to be the law of the case, and the circuit court is not conclusively bound by the decision of the Supreme Court on the former appeal, but should apply the law applicable to the new 'and changed state of facts. Hartford Fire Ins. Co. v. Enoch, 79 Ark. 475, and Rushing v. Horner, 135 Ark. 201.
This brings us to a consideration of the question of whether or not, upon the second trial in the circuit court, the evidence on the question of whether or not S. B. Locke & 'Company was a partnership or a foreign corporation was in all essential respects the same as upon the first trial of the case.
W. R. Locke was the manager of the business of the plaintiffs at Fort Smith, Arkansas, and purchased the cotton in question. Upon the former appeal the court said that the only evidence in the record to the effect that S. B. Locke & Company was conducting the business at Fort-Smith was that of J. M. Locke, and that J. M. Locke was one of the parties to the suit. The court also said that his evidence was disputed by that of W. R. Locke. The opinion of the court recites that W. R. Locke first testified that S. B. Locke & Company constituted a partnership and afterwards that it was a corporation in Oklahoma and a partnership in Arkansas. Later on he said that he did not know whether it was doing business in Arkansas as a corporation or as a partnership, although he was the manager of the business in Arkansas.
Upon the present appeal the testimony is much stronger in favor of the plaintiffs, and is practically undisputed. S. B. Locke & Company was organized as a corporation under the laws of the State of Oklahoma on the 6th day of June, 1913. The stockholders were S. B. Locke, J. M. Locke, and J. C. Fahnstock. Subsequently the latter sold his stock to W. P. Cowan. The principal place of business of the corporation was Muskogee, Olda., with authority to establish branch offices at other places. The corporation opened a branch office in Fort Smith, Arkansas, in 1915, with W. R. Locke, a brother of S. B. Locke, as manager, and bought cotton there. It first thought that it was doing business at Muskogee, Oklahoma, but it was advised by counsel that it was doing business in Arkansas, and was required to file articles of incorporation under our statute regulating the doing of business in Arkansas by foreign corporations.
In 1918 the stockholders of the corporation decided to form a partnership, and, under the advice of counsel in October, 1918, all the stockholders were present at a meeting of the corporation and sold its assets to a partnership, of which they became the members with the same interests they respectively had in the corporation, and the partnership was called S. B. Locke & Company. The corporation still retained its entity because of certain unsettled matters. It ceased, however, to buy and sell cotton, and the business was conducted thereafter by the partnership. On the 10th day of September, 1919, a certificate of partnership was filed in the office of the court' clerk at Muskogee, certifying that the partner ship of S. B. Locke & Company was composed of S. B. Locke, J. M. Locke and W. P. Cowan, and that their residence was Muskogee. Immediately the hank where the funds were kept was notified of the change from a corporation to a partnership. The hank at Fort Smith, through which the branch office there transacted business, was likewise notified of the change. The corporation made its return to the United States Government for the year ending August 31, 1920, and showed that all its capital had been retired except $360. The partnership continued to transact the business of buying and selling cotton, and the transaction herein sued on began in December, 1919, and continued during that month and in January, 1920. The fact of the change from the corporation to a partnership, as stated above, was testified to by S. B. Locke, J. M. Locke and W. P. Cowan.
J. P. Solomon, the cashier of the First National Bank of Muskogee, testified that S. B. Locke & Company had been a customer of the bank for ten-years. He was advised when the change was made from a corporation to a partnership. He required them to make financial statements to the bank. They made a final statement dated in August, 1918, of S. B. Locke & Co. as a corporation. In September, 1919, they made a statement to the bank as a partnership, and these statements were on file at the bank. The bank extended credit to S. B. Locke & Company as a partnership since October, 1918, and the funds carried in deposit in the name of S. B. Locke & Company belonged to them as a partnership since that time. They were so regarded by the bank.
J. P. Solomon was a disinterested witness. His testimony is corroborated by the income tax returns made to the United States Government, by the bill of sale of the assets of the corporation to the .partnership, and by the certificate of partnership filed in the office of the court clerk at Muskogee. The reason for the change from a corporation to a partnership is apparent. They had a branch office at Fort Smith in which they did a large bus- in'ess, and they did not wish, to comply with our laws reg: nlating foreign corporations doing business in this State. Hence the reason for a change from a corporation to a partnership. This they had the right to do, and it was done prior -to the time the transactions involved in this lawsuit occurred.
There is no evidence in the record tending to dispute the testimqny as above recited. W. R. Locke was a witness in the case, and testified at length as to the merits of the case. It will be. remembered that he is tbe manager of the business at Fort Smith, Ark., and bought the cotton which is the subject-matter of the lawsuit.
On cross-examination he was asked whether or not there was a corporation under the name of S. B. Locke & Companjr in Oklahoma, and he answered that he did not know whether there was a corporation of that name in Oklahoma or'not, but that there used to be. This testimony is not sufficient to contradict the testimony of the plaintiffs bearing on this question. Under his testimony it would be oidy a matter of conjecture as to whether or not S. B. Locke & Company was a corporation. There is no substantial contradiction in the testimony of the plaintiffs, and it shows that S. B. Locke & Co. was a partnership during the entire time involved by the transactions in question. Hence the court erred in submitting to the jury the question of whether or not .S. B. Locke & Company was a foreign corporation doing business in the State -without complying with our laws, and therefore not entitled to recover in the action.
We cannot know whether the verdict of the jury was based upon a finding that S. B. Locke & Company was a foreign corporation doing business in Arkansas without complying with our laws, and therefore not entitled to sue in our courts, or whether the decision was against them on the merits of the case. Hence the instruction was necessarily prejudicial to tlie rights of the plaintiffs, and the giving of it constituted reversible error.
Therefore the judgment must he reversed, and the cause will he remanded for a new trial. | [
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Smith, J.
This is the third appeal involving Road Improvement District No. 10 of Pulaski County. In the case of Cumnock v. Alexander, 139 Ark. 153, the validity of act No. 436 of the regular 1919 session of the General Assembly creating the district was upheld. At the extra session of the General Assembly acts were passed which changed the plans of the improvement by adding certain roads to be improved and by eliminating one of the subdistricts. The statute as amended provided for the improvement, in subdistrict No. 6, of a road designated as the Perryville road, beginning in the city of Little Rock at Main and Markham' streets, and running out Markham Street to Victory Street, thence south .on Victory to Third Street, thence west past Forest Park, and thence northwesterly to Cross Roads. The commissioners determined that the portion of the improvement extending from the corner of Main and Markham to Third Street, just described, could be eliminated because those streets could be used as a part of the improvement without repair or other work on the part of the district, and the county court approved the amended plans of the commissioners which excluded those street's from the plans of the improvement. A property owner in the district sought to restrain the commissioners from thus changing the plans, but we upheld their right to do so in the case of Crawford v. Pulaski Road Improvement Distinct No. 10, 154 Ark. 311.
The General Assembly of 1923 passed four acts relating to this district, but the construction o-f only two of them appears to be involved in this litigation, those being acts Nos. 316 and 347.
Act 316 authorizes the commissioners to add a hard surface to that part of the Baucum road in section 2 from, its intersection with the Galloway pike to a point about a mile and a half south of Scott Station, and added to the boundaries of the district some land in Lonoke County, and extended the northern boundary of section 2 in Pulaski County about one mile.
This act contained a limitation on the cost of construction, found in section 9A, which reads as follows: ‘■‘■Section 9A. The road provided for in this act shall not be less than 16 feet nor more than 20 feet in width, and shall not cost said district in excess of $330,000, exclusive of interest.”
Section 4 of act 316 also contains a legislative finding that the lands in this section of the district which were also situated in the boundaries of the North Little Bock and Galloway Boad .District would receive no greater benefit per acre than lands in other parts of the district equally distant from the improved road; it also contained a limitation that the entire improvement, together with the interest on the cost, should not cost the rural lands in section 2 more than $250,000.
Act No. 347 provided that the commissioners should have the right to improve Victory Street from Third to Markham, and to improve Markham Street from Victory to Main as a part of the improvement in section 6 of the district, this being a part of the improvement which the commissioners were originally authorized to make,' but later abandoned.
Appellee, the plaintiff below, is the owner of lands in both sections 2 and 6 of the district, and he alleged that the commissioners were incurring expenses in the preparation of plans for the improvement of the Baucum road which would cost exceeding $330,000, the limitation contained in the section of the statute quoted above, and that the limitation of $250,000 on the rural lands found in section 9B of act 316 would also be exceeded.
Plaintiff also attached as arbitrary the legislative finding of benefits contained in section 4 of act 316, and he also attached as unauthorized the action of the commit sioners in incurring expense in mahing plans for the improvement of the streets in the city of Little Bock, set out above, asserting that this could be done only upon' a petition of a majority in value of the owners of property adjacent thereto.
The answer put in issue all the allegations of the complaint, and the cause was heard on the pleadings and on oral testimony, which is before us in the bill of exceptions made at the trial.
The court dismissed all of the complaint for want of equity, except that portion seehing to restrain the commissioners from incurring expense in mahing plané foi the improvement of the Baucum road, thé total cost of which the court found would exceed $330,000. Both parties have appealed.
It appears from the testimony that the commmis-sioners have sold eighty thousand dollars in bonds for the purpose of obtaining money to improve the Bau-cum road, and had expended $50,000 of that amount when act 316 was passed. After the passage of that act the engineer of the district changed the plans of that improvement, and admitted, in his testimony, that the improvement contemplated by the changed plans could not be constructed for $330,000 if the $50,000' already expended was included as a part of the cost.
We think the court properly construed section 9A of the act, and that the $330,000 is a limitation on the total cost. It is true that statutes are construed prospectively, but the aid of rules of construction is invoked in the interpretation of statutes only when the meaning of a statute is uncertain, and rules of construction are never • allowed to defeat what appears to be tlie manifest purpose of the lawmaking body. Hopper v. Fagan, 151 Ark. 428.
Obviously, the thing of interest, to the taxpayer is the cost of the improvement — the total cost thereof. The fifty thousand dollars already expended is a part of the ■cost which the taxpayer will have to discharge, and the work done with this fifty thousand dollars, is a part of the final plans for the improvement, and must be taken into account in ascertaining what the cost of the road will be, because the work done with this fifty thousand dollars will be a part of the road. This fifty thousand dollars worth of work .has not been paid for ’by the property owners, except that bonds have been sold which are liens upon the lands in the district, and their payment lies in the future as the bonds mature, and these liens can be discharged by the property owners only when they have paid the cost of the improvement, and this cost will include the whole amount expended for the construction of the road..
In placing this limitation on cost, the -Legislature excluded interest, but excluded interest only, and it follows therefore that the commissioners are without authority to build a road which will cost exceeding $330,000, exclusive of interest.
What we have said is applicable also to the limitation on the cost to the owners of rural property contained in section 9B, but the testimony shows that this limita- . tion-will not be exceeded.
The Chief Justice and Mr. Justice Humphbeys do not concur in the view that the limitation covers total cost, they being of the opinion that this limitation relates to . the sum to-be expended after the passage of the act which contains the-limitation.
The majority is also of opinion that the legislative finding contained in section 4 of act 316 is not arbitrary. The testimony establishes the fact that the lands af fected are of the same general kind, all being level and arable, except certain lands lying in lakes, bnt the finding of benefits does not apply to the lands covered by water, as they are expressly excepted. This appears to be a case in which the adoption of the zone system as the basis of assessment of benefits is not arbitrary, and, as is pointed out in the brief of counsel for the road district, the obvious reason for the provisions of section 4 is that the Legislature desired security for those landowners whose lands were in both districts that they wonlfi; not have to pay more than other lands not in both sections and no nearer the road. In other words, the assessment of benefits for the new road must take into account the fact that the existing road affords benefits for which they, 'no doubt, liad already been assessed, which fact must be taken into account in assessing for an additional road, and the General Assembly has, for itself, found and declared a limitation on these betterments; and we think there was no abuse of power in this respect. Hill v. Echols, 140 Ark. 474; Hines v. Road Improvement Dist. No. 5, 145 Ark. 382.
Justices Wood and Hart do hot concur in this view, it being their opinion that the legislative finding is arbitrary.
The majority is also of opinion that the section of the act authorizing the paving of Victory and Markham streets in the city of Little Bock is valid. The objection to this provision of this statute is that it violates section 27 of article 19 of the Constitution, in that it authorizes the paving of streets in a city without the consent of the property holders owning property adjoining the locality to be affected.
The question which determines the validity -of this part of the statute is whether the paving of those streets is properly a part of the proposed improvement, and, if that question is answered in the affirmative, the statute is valid, for we have several times held that the Legislature may create a road district and authorize the commissioners to improve tire road through an incorporated town or city, Cumnock v. Alexander, 139 Ark. 153; Summers v. Road Imp. Dist., 139 Ark. 277; Reitzammer v. Road Imp. Dist., 139 Ark. 168; Cox v. Road Imp. Dist., 118 Ark. 119; Nall v. Kelley, 120 Ark. 277; Bennett v. Johnson, 130 Ark. 507; Tarvin v. Road Imp. Dist., 137 Ark. 354. Indeed, in the case of Cumnock v. Alexander, supra, one of the grounds of attack on the statute was that the commissioners were authorized to improve those streets, and we held the commissioners had the right to do so. The commissioners later determined the improvement could be constructed without the improvement of those streets, and we held that if such was the case the district would not be required to improve them. Crawford v. Pulaski Road Imp. Dist No. 10, 154 Ark. 311.
Now the Legislature has determined that this part of the improvement should be restored as a part of the Perryville road, and we must assume that there has been a review or a reconsideration of the finding of the commissioners upon which they abandoned this part of the road.
Of course, the Legislature could not authorize the ' improvement of the streets of a city under the guise of connecting the streets with country road districts, but we do not feel warranted in saying that this is a subterfuge to permit this to be done, but is rather a single improvement of which the city streets mentioned compose a part, and upon that assumption that portion of the act is upheld. Judges Wood and Hart do not agree to the conclusion of the majority on this feature of the case.
The views of the different members of the court result in the affirmance of the decree of the court below in its entirety, and it is so ordered. | [
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Humphreys, J.
This suit was instituted by appellee against appellants in the chancery court of Sebastian County to subject lots 7 and 8, block 560, Reserve Addition to the city of Fort Smith, to the payment of indebt-ednesses owing by F. C. Starr, an undischarged voluntary bankrupt, to appellee and other creditors. The bill is threefold in purpose, and first sought to subject both lots to the payment of said indebtedness, upon the ground that a large part of the money loaned by appel-lee to F; C. Starr to finance his business was fraudulently diverted to the payment of the purchase money of the lots and the cost of the improvement placed thereon; and, failing in the first purpose, next sought to set aside ■certain conveyances made by F. C. Starr to Edith Starr to the undivided one-lialf.interest in the lots, and subject his interest therein to the payment of said indebtedness, on the ground that they were voluntary and made in fraud of the rights of creditors; failing in the second purpose, to set aside said conveyances as to the excess over one-quarter of an acre contained in said lots, and-to subject such excess to the payment of said indebtedness, on the ground that the lots were within the city and exceeded in value the sum of $2,500.
The material allegations of the bill were denied, and, as a further defense, appellants pleaded that each of them, at the time of the purchase of the lots and at all times thereafter, were citizens and residents of the State of Arkansas; that F. C. Starr was a married man and the head of a family; that both resided upon said property, as and for their homestead, after same was purchased, long prior to the adjudication of F. C. Starr in bankruptcy, and prior to the time the indebtednesses were incurred.
Tlie cause was submitted to the court upon the issues joined and the testimony adduced by the respective parties, which resulted in a decree setting aside the two deeds executed byr F. C. Starr to Edith N. Starr, his wife, conveying his interest in said lots to her, and subjecting said lots to the payment of said indebtednesses subject to a mortgage lien in favor of the Arkansas Building & Loan Association on lot 7, and a lien of $283.33 in favor of Mrs. W. S. Cochran on lot 8, from which is this appeal.
Appellant’s first insistence for reversal is that the court erred in subjecting so much of the property as constituted the homestead of appellants to the payment of said indebtedness. The record reflects by stipulation that, on December 3, 1917, Dennis Potts conveyed to appellants, as tenants by entirety, said lot 7 for a consideration of $850, the deed of conveyance being immediately placed of record; that on June 1, 1920, F. C. Starr conveyed to his wife, Edith N. Starr, a one-half interest in the lot for the recited consideration of $1, which deed was also recorded immediately thereafter; that on February 13, 1920, Adams & Boyle Realty Company conveyed to F. C. Starr and wife, as tenants by the entirety, said lot 8, for the consideration of $850, retaining a lien on same in deed for all of the purchase price except $283; that on May 10, 1921, F. C. Starr conveyed to his ’wife, Edith N. Starr, a one-half interest in said lot for' a recited consideration of $1, which deed of conveyance was also placed of record; that at the time lot 7 was purchased from Dennis Potts, F. C. Starr-and wife executed to the Arkansas Building & Loan Association of Little Rock, Ark., their mortgage thereon for $700, and that said mortgage was immediately recorded.
The record also reflects that on December 22, 1919, F. (1 Starr borrowed from appellee bank $500, and on the 21 st dav of February, 1921, $3000, on promissory notes, which were renewed from time to time and were existing’ indebtednesses at the time Starr failed in busi ness; that, immediately after the purchase of lot 7, appellants took actual possession of and occupied same thereafter, as their homstead; that lot 8 was purchased as an addition to their homestead and occupied and used by them in connection with lot 7; that a poultry house was built on the hack part of lot 8, which Starr used in connection with.his business. The fact that the poultry house was built on lot 8 and used by Starr in connection with his business is urged by appellees as proof conclusive that lot 8 was not intended or impressed as part of the homestead.
One does not lose his homestead for using part of it for 'business purposes. Berry v. Meir, 70 Ark. 129. The records fails to show that the money borrowed from appellee by Starr was loaned to him for the specific purpose or purchasing the lands in question.' The relationship of debtor and creditor, and not that of vendor and vendee, was created by the loans. This court is committed to the doctrine that borrowed money for the specific purpose of buying a home and so used is “purchase money” within exception to article 9, section 3, of our Constitution, for which a lien may be declared on the property purchased (Acruman v. Barnes, 66 Ark. 442), but is not “purchase money,” within the meaning of said section, for which a purchase money lien may be declared on the property purchased, if a general loan. Phillips v. Colvin, 114 Ark. 14. It is not and cannot be a fraud upon creditors for an insolvent debtor, who is a resident of this State and a head of a family, to purchase a home, within the constitutional area and value, out of his assets, upon which there is no existing lien. This court ruled in the case for Ferguson v. Little Rock Trust Company, 99 Ark. 45 (quoting syllabus 2): “An insolvent debtor may exchange lots which are subject to the claims of his creditors, but upon which they have no liens, for a homestead which is not subject to their claims.” And in the case of McIlroy Banking Co. v. Dickson, 66 Ark. 327, ruled (quoting syllabus 4) : “Mon ey borrowed of a bank by its casbier by means of an overdraft in the usual course of business, and used by him to build a house, cannot be followed into the building as an express trust fund, so as to subject the building to execution, under Constitution 1874, art. 9, sec. 3, providing that the homestead shall be subject to execution against “trustees of an express -trust for moneys due from them in their fiduciary capacity.” And in the case of Pullen v. Simpson, 74 Ark. 592, in which it appears that a debtor was residing with his wife upon her homestead, ruled (quoting syllabus): '“An insolvent debtor may use his means, upon which his creditors have no lien, in improving his wife’s homestead, if such homestead is within the maximum area and value permitted by the Constitution.” Under the rule announced in the three cases last cited, the homestead of appellants, to the extent of oné-quarter of an acre, is exempt from the indebtednesses owed by F. C. Starr to appellee bank and his other creditors in bankruptcy.
Appellants’ next insistence for reversal is that the court erred in canceling the two deeds from-F. C. Starr to his wife conveying his interest in their homestead to her. We think it practically imdisputed, and quite clear, after a careful reading of the testimony, that appellants acquired, occupied, and used the lots as their homestead. According to the undisputed evidence the lots are urban property, exceeding in value $2,500 and in area one-quarter of an acre; that the conveyances sought to be canceled were voluntary. Under these facts the creditors had no interest in or right to that part of said property constituting the homestead of appellants. There are no creditors, as far as a homestead is concerned, save those entitled to liens thereon under the Constitution. For this reason creditors cannot attack, as fraudulent, the conveyance of a homestead made without consideration and in bad faith as to them. Fluke v. Sharum, 118 Ark. 229, and cases cited therein. The chancery court erred therefore in setting aside the deeds in question in so fai as they conveyed appellants’ homestead and in subjecting that part of the property constituting the homestead of appellants to the payment of the creditors in bankruptcy.
Appellants’ last insistence for reversal is that the court erred in setting aside the two deeds from F. C. Starr to his wife and subjecting the excess over one-quarter of an acre contained in lots 7 and 8 to the payment of said debts. We cannot agree with learned counsel for appellants in this contention. It is true that F. C. Starr and Edith N. Starr testified that both lots were purchased with her individual money, and that none of his money was used in the purchase or improvement of them. We are convinced that this was the case in the purchase of lot 7, but are exceedingly doubtful whether lot 8 was purchased with her money. Mrs. Starr had an individual checking account in the First National Bank from the time they came to Fort Smith, some eight or nine years before she testified. It was her practice to pa}T her debts with checks on that bank. She made the two initial payments on lot 7 and a number of the payments to the Building & Loan Association with checks, as was her custom. Not so when she came to buy lot 8. According to the evidence of herself and husband, she called in her neighbor, Mrs. W. S. Cochran, to count her money (or “boodle,” as she denominated it), and, not having enough to make the first payment, borrowed the deficiency from her friend, Mrs. W. S. Cochran. She was unable to say whether she had $200 or $250, and' could not tell how much she borrowed from Mrs. Cochran. She testified that she gave Mr. Starr the money to go down and buy the lot for her. When pressed, she was unable to make a satisfactory explanation as to why he had the deed made to the two of them instead of to her. She could not satisfactorily explain why he deeded Ms interest in lot 8 to her on May 10, 1921, only a few months before he failed, and in attempting to do so made several contradictory statements. Her attempted explanation that lie deeded the lot to lier because it was paid for with her money was not plausible. He was not moved by an impulse of that kind at the time he bought the lot, else, when he paid her individual money for it, he would have taken the deed in her name. At the time he conveyed lot 8 to his wife his business was not prospering1, and, if not then insolvent, he was on the eve of bankruptcy. He conveyed lot 8 to her without consideration when indebted to the bank in the sum of $3,500. We are convinced that he made this conveyance with the purpose and intent of placing his property beyond the reach of his creditors. The chancellor found that said lot purchased by F. C. Starr was purchased with his own money, and, after a careful reading and consideration of the testimony, we are unable to say the finding was against a clear preponderance of evidence.
The decree is therefore affirmed as to the excess over one-quarter of an acre, but reversed and remanded as to that portion of the lots claimed as a homestead, with directions to allow appellant to select one-quarter of an acre as exempt from the claims of appellees. | [
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Hart, J.
Appellant prosecutes this appeal' to reverse a judgment against it in favor of appellee for damages resulting from appellant’s failure to perform a contract for the sale to it of certain merchandise by appellee. The appellant, who was the defendant below, is a foreign corporation located at Memphis, Tennessee, engaged in selling at wholesale soaps and cooking fats. The appellee is a corporation located at DeQueen, Ark., and is a jobber engaged in selling soaps, cooking fats, and other merchandise. Appellee was a customer of appellant, and purchased from it a considerable quantity of soaps and eookipg fats, which it had on hand on June 30, 1920. Prior to that time appellant had been selling its merchandise through jobbers, and appellee was one of its main customers in this part of the country. On the date above mentioned, appellant changed its method of business and began to sell directly to retailers. Upon learning this fact, appellee wrote to appellant, asking it to take up the merchandise which it had bought from appellant and had on hand.
It is conceded that the appellant agreed to relieve appellee of the stock of soap and Crisco which appellee had bought from it, and that a contract to that effect was entered into by means of certain letters and telegrams between the parties. On the other hand, it is the contention of appellee that appellant also agreed to repurchase the Flakewhite, which is a cooking fat, which ap-pellee had purchased from appellant,
It is well settled in this State that contracts may be made by telegrams and letters, and, when so evidenced, it is the duty of the trial court to interpret the contract and declare its terms. Hart v. Hammett Grocer Co., 132 Ark. 199, and cases cited.
This rule is conceded to be the law in this State, and the only issue raised by the appeal is whether or not the contract between the parties is such that the court was warranted in telling the jury, as a matter of law, to return a verdict in favor of appellee. The instruction to return a verdict for appellee was based on the ground that the letters and telegrams on their face showed an absolute agreement on the part of appellant to repurchase the Flakewhite which appellee had on hand on the same terms as it had agreed to repurchase the stock of soap and Crisco that appellee bad on hand.
The correspondence between the parties commenced on the 13th of July, 1920, and lasted until the 23rd day of December, 1920, at which time appellant denied that it had offered to relieve appellee of its stock of Flakewhite, and refused to do so.
The letters between the parties are numerous and somewhat lengthy. For this reason it is not practical' to set them out in full within the short compass of this opinion. We have reached the conclusion that the circuit court was right in telling the jury, in effect, as a matter of law, that the agreement of appellant to repur-' chase the stock on hand which appellee had originally purchased from it included the Flakewhite as well as the Crisco and the soaps.
On July 13, 1920, appellee wrote appellant as follows: •
“Dear sirs: We have heard rumors that, since you' have gone direct to the retail trade with the line of soaps and shortening, that it is your intention to take up' jobbers’ stocks. We have quite a lot of stock of your soap on hand, and which we bought with the expectation of selling for a profit, and of having your cooperation in doing- so, and we feel that, in justice to us, you should relieve us of the stock of soap and Criseo that we have on hand. Please advise us at once, and oblige.”
On the 16th day of July, 1920, appellants sent to appellee the following answer:
“Gentlemen: We acknowledge receipt of your letter of July 13th, in which you request that we relieve you of your stock our brands. We shall be very glad to adjust the matter, but will ask that you await a visit from one of our representatives before any action is taken.- We will have some one call at the earliest possible moment, but we request your indulgence, as it may be a matter of a week -or ten days before we are able to have our salesman visit you. You of course understand that any- adjustment made will be on the basis of cost-prices-as..of June 30,1920.” ■■
On July 28 appellee answered this letter., and notified appellant that its representative had not yet come. Appellee stated that it had goods of appellant which it was anxious for it to take up, and then enumerated the kind and amount of the goods. The enumeration included certain cases of Criseo, certain cases and drums of Flakewhite, and certain cases of different kinds of soap and washing powder. Appellee reminded appellant that, when it bought the goods, it received no information whatever that the distribution of the goods would be taken out of the hands of the jobbers, and that it had been an important factor in placing appellant’s goods on the market in the town of DeQueen.
Appellant answered this letter, and again told ap-pellee that its representative would soon be there to take up the goods. Appellant promised appellee in the letter that it should be remitted for these goods a't the prices in effect June 30, 1920. On August 14, 1920, ap-pellee wrote appellant that it would like to know something definite about its intention of taking úp the goods in question. On August 20, 1920, appellee sent to appellant a telegram as follows:
“Are you going- to relieve us of stocks of soaps and cooking compounds in yoiir brands? If so, when?”
On August 20 appellant wrote to appellee as follows:
“Gentlemen: In reply to your communication of August 14, we wish to advise that we will give you disposition upon receipt of an up-to-date statement of the merchandise that you have on hand, giving size and the exact number of cases.”
Appellee replied to this letter and gave to appellant a complete itemized list of the goods it had on hand. In the list were certain cases of Flakewhite and Crisco, and certain kinds of soaps. Other letters passed between the parties, but we do not deem it necessary to set them out. Appellant finally refused to take back the Flakewhite on the ground that, when it changed its method of doing-business, it did not relieve jobbers of cooking fats, and reminded appellee that cooking fats were perishable products.
We think it was too late then for appellant to refuse to take the eases of Flakewhite. On the 28th day of July, 1920, appellee sent to appellant an itemized list of the goods on hand which it had purchased from appellant. This itemized list included the Flakewhite as well as the Crisco and the soaps. This was followed by a telegram on August 20, 1920, asking the direct question if appellant was going to relieve appellee of its stock of soap and cooking compounds.- Flakewhite is included in the latter term. Appellant answered this letter by agreeing to give appellee its disposition of the goods upon an up-to-date statement of the amounts and kind on hand. This constituted a binding contract between the parties for the appellant to take up the amount of Flakewhite on hand which appellee had purchased from it, as well as the Crisco and the soap. Appellee included the number of cases of Flakewhite in its itemized list of goods, and appellant agreed to take up- all the goods on hand which it had sold to appellee, only insisting on ap- pellee’s giving a detailed statement of tbe amount and kind of goods on hand.
Appellant paid appellee for all the goods shipped under the agreement, except the Flakewhite, and the court instructed the jury to return a verdict against appellant in favor of appellee in the sum of $815.40. This was the price of the Flakewhite on the date of June 30, 1920.
Appellant insists that, in any event, the judgment should be reversed because it was not allowed the sum of $52.17 which should have been deducted from the amount it was to pay appellee for the goods actually taken back by it. A claim is made for this on the theory that in the original sale of the goods appellant allowed appellee a discount of two per cent, for cash. A sufficient answer to this claim of appellant, however, is that it only paid for part of the goods which it agreed to take back, and absolutely refused to take 'back and pay for the Flakewhite at the agreed price. Under this state of the record it would not, in any event, be entitled to any discount on the purchase price.
Finally it is insisted by appellant that the contract is void for want of mutuality, and for that reason the judgment should be reversed.
We think that there is nothing in this contention. It appears from the record that appellee had paid appellants for the goods it had purchased from it. When appellant changed its method of doing business from dealing with jobbers to dealing with retail merchants, appellee asked appellant to take back the goods it had on hand which it had purchased from appellant, and appellant agreed to do this at the price of these goods on a certain date, when it should receive an itemized list of such goods. This amounted to a repurchase of the goods by appellant from appellee, and this it had a right to do.
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Hart, J.
Crawley Royal prosecutes this appeal to reverse a judgment of conviction against him for selling property subject to a landlord’s lien, in violation of tbe provisions of § 2552 of Crawford & Moses’ Digest.
Tbe main reliance of appellant for reversal of tbe judgment of conviction is that tbe verdict is without evidence to support it. Whether there was any testimony legally sufficient to sustain tbe verdict is a question of law, but whether tbe verdict is justified by tbe testimony presents a question of fact which cannot be considered upon appeal.
According to tbe testimony of T. K. Lee, he made the contract with the appellant, Crawley Royal, to rent him his farm in Chicot County, Ark., for $1,000 for the year 1920. There were 125 acres fit for cultivation, but, on account of the wet season in 1920, there was only between 75 and 100 acres put in cultivation. One of the subtenants of appellant made three bales of cotton and a remnant. This cotton was delivered to appellant, and he delivered two of the bales to the landlord. These two bales were sold for about $100 by the landlord. Appellant told witness that 'he had taken the other bale of cotton to Lake Village and sold it.
A subtenant of appellant testified that he made three bales of cotton and a remnant of 100 pounds. He turned this cotton over to the appellant after it was ginned. This was the same three bales of cotton referred to bv the landlord in his testimony. Another witness testified that she was a subtenant of appellant, and made a' small remnant of cotton, which she turned over to him. Still another witness testified that he made 280 pounds of lint cotton on the place, which he turned over to appellant. Another witness testified that he ginned seven bales of cotton for the appellant and his subtenants in the fall of 1920. All this cotton was turned over to the appellant, except one bale, which he kept to pay for ginning. This . bale was sold for about $50.
It is true that this testimony was contradicted by that of the appellant and his witnesses, but, as above stated, the long-established rule in this State is that this court will not disturb the verdict of a jury upon the mere weight of the evidence.
The jury might have found, from the evidence recited above, that the cotton referred to by the witnesses was raised upon the place of the prosecuting witness in Chicot County, Ark., and that appellant sold a part of it with the intent to defeat the landlord in the collection of his rent.
It is insisted that the value of the cotton sold is a material element in the offense, and that there is no testimony on this point. According to the testimony of the landlord, the two bales of cotton which he did receive from appellant were sold for something like $100. According to the testimony of' the ginner, the bale which he kept as security for the ginning was sold by him and brought something like $50. The cotton was all grown on the same place. At least the jury might have inferred this to be the fact, and the testimony as to what these three bales sold for inferentially showed the value of the other cotton.
No objections were made or exceptions saved to the giving of instructions. Therefore no assignment of error on this account is presented for review. Clardy v. State, 96 Ark. 52.
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Humphreys, J.
Appellee brought suit against appellant in' the First Division of the Crittenden Circuit Court to recover $880 as commission for selling real estate for him. The complaint and answer, embraced in condensed form in appellee’s statement, are as follows:
COMPLAINT.
“The complaint alleges that appellant was the owner of the southeast quarter of section 2, township 8 north, range 7 east, and listed the same with appellee for sale, at a net price of $15,000. That appellee sold said land to j. E. Sheppard for the sum of $17,600, $7,600 in cash, the balance upon the terms proposed by the appellant; that appellee notified appellant of said sale, but appellant failed and refused to consummate the sale, although the purchaser was able, willing, and ready to purchase the land upon the terms and for the price agreed upon; that appellant was a nonresident of the State of Arkansas, and resided at Carlinville, Illinois. Prayer for judgment for the sum of $880, being a reasonable commission upon the sale price of said land, with 6 per cent, interest thereon from September 15, 1919.”
ANSWER.
“Appellant filed the following answer to this complaint : admits that he is the owner of the above described land; denies that he listed said land for sale with ap-pellee at any price at any time; denies that appellee sold said land to Sheppard for $17,600, or at any price; denies that appellee notified appellant of said sale; denies that appellee was appellant’s agent for any purpose, and appellant was therefore not required to execute deed to anyone at appellee’s request. Admits that appellant is a resident of Illinois; denies that appellant is indebted to appellee in any sum.”
The cause was submitted upon the pleadings, testimony, and instructions of the court, which resulted in a verdict and judgment against appellant in the sum of $880, from which is this appeal. At the conclusion of appellee’s testimony, appellant asked for an instructed verdict in his favor, which request was refused, over his objection and exception. This request was made upon the ground that, according to appellee’s own testimony, he did not sell the land for him to Sheppard for $17,600, $7,600 in cash and the balance upon terms proposed by appellant, or present a purchaser ready and willing to pay him that sum for said land upon terms proposed by appellant, and did not report such a sale to him, but, on the contrary, reported a sale of the land for $15,000 net to him, $5,000 cash and balance upon terms proposed by appellant.
Appellant’s main insistence for reversal is that the court erred in not peremptorily instructing a verdict for him on the undisputed facts. We agree with appellant in this contention. According to the undisputed facts, appellee wired appellant on September 9, 1919, who lived, 'at the time, in Carlinville, Illinois, that he had an offer of $15,000 for the land, $5,000 cash, balance one, two, three and four notes, 6 per cent. The contents of this telegram were confirmed by letter on the next day. When the telegram was sent and letter written, appel-lee had an offer of $16,000’ for the land. On the following day, September 11th, appellant wrote appellee as follows:
“Tour message received last night, in reply to the land, would take $15,000, but there is a lease on the land till January 1, 1921, and I would want $5,000 cash and the other $10,000 in two equal parts of $5,000 each 'at 6 per cent, interest, one payment in 1920 and one in 1921. If this appeals to you, let me know, as I cannot give possession till January 1, 1921, unless it would be so. mentioned in the deed that the man would have the right to all crops raised on the place in 1920, that is farming it now. Let me hear from you.”
Thereafter, on September 15th, appellee wired appellant as follows: “I have sol'd your land, price and terms accepted, letter following.” At the time this telegram was sent and letter written, appellee had sold the land to Sheppard for $17,600, and withheld the information from appellant. The following excerpt is taken from appellee’s testimony relative to this letter:
“Q. You never told him that you had sold his land for $17,600, did you? A. No sir; that would have been shown in the face of the deed.”
On December 29, 1919, appellee wrote the following letter to appellant: “Under date of September 15, 1919, I wired you acceptance of the land and that sale had been made as per your offer on the 10th of September, being $15,000 net to you. I sold this place at and for the sum of $17,600, or at a profit of $2,600 to me. You have ignored all letters and telegrams sent you since that time, and this is to advise you that unless you, upon receipt of this letter, or within ten days from this date, accept this sale and so advise me, I will bring suit in the Crittenden ‘Cir-ciut Court -to recover my commission or profit from you.”
Appellee did not earn a commission on the $17,600 sale to Sheppard, because he did not report it to appellant until December 27, and, at that time, did not report it as a sale for that amount to appellant. On that date he reported it as a sale of $15,000 net to appellant and $2,600 to himself as profits or commissions. Although authorized to sell the property for $15,000 net, it was his duty, in good faith and loyalty to his principal, to apprise him at once of the advantageous sale he had made to Sheppard. Appellant was entitled to the full purchase price on the sale, less a reasonable commission to appellee for making it. Appellee was .not entitled to the excess over the list price, for a real estate broker cannot take advantage of his agency to make gain for Mmself. Appellee clearly lost bis right to a commission. by withholding valuable information from his principal, and by demanding the excess above the listed price as a profit to himself. Taylor v. Godbold, 76 Ark. 395; Featherstone v. Trone, 82 Ark. 381; Bennett v. Thompson, 126 Ark. 61.
Other contentions are made by appellant for reversal of the judgment, but it is unnecessary to discuss them, as the judgment must be reversed and cause dismissed for the error indicated. It is so ordered.. | [
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Smith, J.
Tke plaintiff alleged that on tke 8th day of May, 1919, she and her husband and their two children, of tke ages of two and three years, were traveling overland from Oklahoma into-this State by way of the town of Hazen, a station on the line of defendant’s road. That, on account of the public highways becoming bad, she purchased a ticket .at Hazen for Wynne, where she ivas to remain until the arrival of her husband in the automobile. She boarded one of defendant’s passenger trains at Hazen, with the two children and a suitcase. She was not informed by either the station agent who sold her the ticket or the conductor on the train, or any of the employees of the defendant company, that she would have to change cars at Forrest City; neither was she so advised when she reached Forrest City, although her ticket was taken up by the train auditor immediately after leaving Hazen.
Plaintiff was carried by Forrest City to Madison, a town four miles east of Forrest City, where she was picked up by a work-train and carried back to Forrest City, or to a point near there, from which place she had to walk and carrjr her children, and later caught a train to Wynne, where she arrived eight hours later than she would have done had she been told to change cars at Forrest City.
Plaintiff’s testimony supported all these allegations, except the delay in arriving at Wynne. The testimony disclosed the fact that she departed on the train she would have taken had she not been carried by Forrest City, unless she had been willing to make the trip, to Wynne on a local freight train leaving Forrest City earlier in the afternoon.
Plaintiff testified that the train on which she was a passenger stopped at Forrest City for a sufficient length of time for her to have left the train safely, but she did not leave* it for the reason that she did not know she should have changed cars there. She testified that, after leaving Forrest City, a trainman came through the car and asked her rudely why she had not changed at Forrest City, and stated that she should have had sense enough to do so. Except for this rudeness she was treated very courteously by the defendant’s employees with whom she came in contact. The conductor of the train which carried her by Forrest City saw the conductor of the work-train at Madison and asked him to assist plaintiff back to Forrest City, and the conductor of the work-train performed that service very courteously. He did not run his train up to the station, because his train did not have the right-of-way on the track leading there, but he stopped his train in the yards near Forrest City, and carried plaintiff’s suitcase to the depot. Plaintiff says the distance she had to walk was about a mile, and that she carried one child and led the other, and was much exhausted and fatigued when she arrived at the depot. Plaintiff was evidently mistaken as to the distance she walked, but she did walk a distance of from a quarter to half a mile, and she testified that she was much perturbed by the experience.
The court refused to give, at defendant’s request, a peremptory instruction in its favor. The court gave, at the instance of the defendant, an instruction to find for the defendant if the jury found that plaintiff failed to exercise ordinary care on her own behalf in respect to changing cars at Forrest City.
The defendant asked an instruction, numbered 3, which reads as follows: “The jury are instructed that, if you find from the evidence in this case that the ticket purchased by the plaintiff was a coupon form ticket, one portion of which read from Hazen to Forrest City, and the other portion of which read from Forrest City to Wynne, and showed on its face that it was by way of the Missouri Pacific from Forrest City to Wynne, and that this would have been sufficient, under the circumstances, to put a reasonably intelligent person on notice that it was necessary to change ears at Forrest City, your verdict should be for the defendant.”
Tlie .court gave this instruction after adding the following qualification: “If you further find from the evidence that plaintiff knew, or could have known by the exercise of ordinary care, when the train she was on reached Forrest City, that she had reached the place where it was necessary for her to change trains in order to go to Wynne.”
An exception was saved to this modification. After modifying the instruction as indicated the court gave, over defendant’s objection, the following instruction: “2. You are instructed that, if you find from a preponderance of the evidence that the plaintiff bought a ticket from Hazen which entitled her to transportation from there to Wynne, and that under that ticket she became a passenger on defendant’s train, and that it was necessary for her, in order to reach the place of her destination, which was Wynne, that she should make a change of cars at Forrest City, then it became the duty of the railroad company to notify her when the train reached Forrest City, and that that was the junction of its railroad with the Missouri Pacific, the one she would have to travel on to reach Wynne; and if you find from the evidence in this case that the defendant failed to give notice, then your verdict should be for the plaintiff, if you find that the plaintiff in fact suffered any damage because of the failure of the company to give said notice.”
To the giving of this instruction the defendant made the specific objection that it, in effect, imposed an absolute duty on the defendant to give notice of the change of cars at Forrest City,, and left out of consideration tlie fact that due and reasonable notice was given to the plaintiff by the form of the ticket which she had purchased.
We think the court properly refused to direct a verdict in defendant’s favor. And we are also of the opinion that, as modified, defendant’s instruction numbered 3 declared the law as favorably to defendant as it had the right to ask. And we think no error was committed in giving instruction No. 2 set out above.
The instructions should, of course, be read together; and, when so read, they advised the jury that plaintiff could not recover if she knew she should change cars at Forrest City, or, in the exercise of ordinary care, should have known it. In other words, the court submitted to the jury the question whether plaintiff had notice of the change of cars, and told the jury to find against her if she had notice. Of course, if she had this notice, she should have acted upon it, regardless of the manner in which she obtained the notice. But in instruction numbered 2 the court properly told the jury that she was entitled to notice; and so she was.
Plaintiff was not entitled to personal notice, and the instruction does not so declare the law, but she was entitled to notice, and the instruction did not leave out of consideration the fact that she might have had this notice from the form of her ticket, because the third instruction so declared the law.
The instant case is very similar to that of St. L., I. M. & S. R. Co. v. Needham, 122 Ark. 584. There, as here, the plaintiff took passage on one road for a station on another, and was carried by the station at which she should have changed cars. In that case, as in this, the train auditor testified that he advised the passenger of the necessity of changing cars when lie took up the ticket, but that fact was denied in each case by the passenger. In that case the brakeman testified that, as the train approached Kensett, the station at which the plaintiff should have changed cars for ITeber Springs, her destination, a station on the M. & N. A. railroad, he called out in the car in which plaintiff was riding for all passengers to “Chang*e cars for 'Searcy and Eureka Springs,” these being important stations on the M. & N. A. railroad; but the brakeman did not announce that the change should be made for Heber Springs and other intermediate points; but the plaintiff denied having heard the announcement which was made. We there said: “It is clear that if there was an announcement made, as claimed by the flagman, giving notice of the necessity for a change of cars to points north on the. Missouri & North Arkansas Railroad, the plaintiff was bound to take notice of her route and make the necessary change. She was an adult, apparently of ordinary intelligence, and in full possession of her senses, therefore the carrier was not required to give her special notice of the necessity for a dhange of cars. All that the law required was that a suitable regulation be made for the convenience of passengers, and that reasonable steps be taken to bring those regulations to the attention of the passenger, no further individual notice being required.” A number of cases were cited in support of the doctrine announced. It was there also said that “while the defendant (railroad company) had the right to assume that the plaintiff had informed herself as to the route to her destination, yet the obligation rested upon the carrier to give some notice of the arrival at the junction point, and of the fact that it was the junction point applicable to the route plaintiff was traveling.”
In other words, it is the duty of the carrier to give passengers notice of the arrival of trains at junction points for connecting railroads, and the court properly so directed the jury, and, while it is true that no individual notice is required, the instruction complained of did not impose that exaction, and, if it was thought susceptible of that interpretation, a specific objection to that effect should have been made.
It is also urged that the verdict, which was for $200, is excessive. Upon this question it may be said that full compensation was allowed, but we do not find that it was so excessive that it must be reduced. It is true that, while plaintiff'spent the day in Forrest City, she resumed her journey on the train she would have taken had she transferred properly, unless she had taken passage on a local freight train, which she might have done; but she did have an experience which was highly annoying- and which, no doubt, caused her much mental distress. Until the conductor of the work-train took charge of her, she was incumbered with a suitcase and had the care of two small children, and, thus incumbered, she waited for an hour or more at Madison, and she was compelled to carry one of these children and lead the other along the railroad track for a quarter of a mile or more after reaching Forrest City. Upon arriving at the hotel where the conductor escorted plaintiff, she was compelled to take a room and stay the remainder of the day, and, under the circumstances, we do not think the verdict is so excessive that it can he said to he unsupported by the evidence. Hines v. Witherspoon, 143 Ark. 131.
Judgment affirmed. | [
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Smith, J.
On April 13, 1922, appellee, as trustee in bankruptcy, filed a complaint in the chancery court against W. W. Byrd and Ada Y. Byrd, his wife, and J. R. West, alleging that on February 2, 1922, the creditors of W. W. Byrd filed in the United States District Court at Jonesboro a petition to have W. W. Byrd declared an involuntary bankrupt, and' that on February 24,1922, the court made an order so adjudging. That on February 11,1922, B3)-rd paid to West a thousand dollars in partial satisfaction of a note held by West, executed by Byrd and his wife, in part payment of the purchase price on the homestead occupied by Byrd, and which he had bought from West. Byrd bought the house from West on March 1, 1919, and the purchase price was $5,000, of which $1,250 was paid in cash; $2,500 of the purchase money was represented by a mortgage on the house in favor of the American Trust Company of Jones-boro, which Byrd assumed; and the remaining $1,250 was represented by a note.due March 1, 1920, on which the thousand-dollar payment was made. The complaint alleged that the payment to West was fraudulent and void because Byrd was insolvent. His place of business had been levied upon under an execution, and the payment had been made after the petition in bankruptcy had been filed, and when West had knowledge thereof. The complaint prayed that the payment be declared'void as against the creditors of Byrd, and that West be required to reimburse the creditors in said amount, and. that he be required to rely upon and proceed under his mortgage security to obtain satisfaction of his own debt, and that a lien be declared upon the homestead for the payment of said thousand dollars.
Byrd and bis wife answered and denied all the allegations of the complaint, and .alleged that the payment was made by Mrs. Byrd with her individual funds.
West answered and admitted the receipt of the thousand dollars, but denied knowing that the money belonged to the trustee in bankruptcy, but he admitted that he knew the creditors had filed the petition at the time the payment was made to him. He prayed that, in the event he was required to refund the money, his lien he declared superior to that of the other creditors, and that his'lien on the homestead be foreclosed for the full amount of said indebtedness.
The question of fact in the case is whether the thousand-dollar payment was made with funds belonging to Mr. Byrd or with the funds of his wife; and the court expressly found the fact to be that the money belonged to him. We concur in this finding, and announce that conclusion, without attempting to review the testimony leading -thereto.
Having made this finding, the court below directed West to repay to the trustee in bankruptcy, the plaintiff in the action, the thousand-dollar payment, and then granted West the relief prayed by him in his cross-complaint.
Counsel for Byrd insists the decree should be reversed, even though that finding is made from the testimony, on the following grounds:
1. That the filing of an involuntary petition in bankruptcy does not operate as an attachment of the propertjr of the bankrupt until adjudication.
2. That the bankrupt had the right at any time, up to the date of adjudication, to convert non-exempt assets into exempt property.
3. The indebtedness to West, secured by a vendor’s lien on the homestead, was past due, and West had the right to receive payment and Byrd had the right to make the payment up to the date of adjudication.
4. The court erred in undertaking to give to the trustee in bankruptcy a lien upon the joint homestead property of Byrd and his wife, or in attempting to sub-rogate the creditors to the rights of West, since Mrs. Byrd was not a party to the bankruptcy proceeding.
We think the finding that the payment was made with Byrd’s money is decisive of the question stated, because the payment was made after the petition had been filed, and West had notice thereof when he accepted the payment.
We think it immaterial that Byrd was adjudged a bankrupt upon an involuntary petition, rather than upon his own voluntary petition, for the fact adjudged was that he was a bankrupt, and this adjudication was made upon a petition filed before the payment was made.
An involuntary petition was filed in the case of Acme Harvester Co. v. Beekman Lumber Co., 222 U. S. 300, and what was there decided is conclusive of the questions raised here. Mr. Justice Day, for the court, said: “Whatever may be the limitations of the doctrine declared by this court, speaking by the late Chief Justice Fuller in Mueller v. Nugent, 184 U. S. 1, 34, 46 L. ed. 405, 411, 22 Sup. Ct. Rep. 269, where it is said: ‘It is as true of the present law (1898) (30 Stat. at L. 544, chap. 541, U. S. Comp. Stat. 1901, p. 3418) as it was that of 1867 (14 Stat. at L. 517, ch. 176), that the filing of the petition is a caveat to all the world, and, in effect, an attachment and injunction. International Bank v. Sherman, 101 U. S. 403, 25 L. ed. 866. And, on adjudication, title to the bankrupt’s property became vested in the trustee (§§ 70, 21e) with actual or constructive possession, and placed in the custody of the bankruptcy court,’ it is none the less certain that an attachment of the bankrupt’s property, after the filing of the petition and before adjudication, cannot operate to remove the bankrupt’s estate from the jurisdiction of the bankruptcy court for the purpose of administration under the act of Congress. It is the purpose of the bankruptcy law, passed in pursuance of the power of Congress, to establish a uniform system of bankruptcy throughout the United States, to place the property of the bankrupt under the control of the court, wherever it is found, with a view to its equal distribution among the creditors. The filing of the petition is an assertion of jurisdiction with a view to the determination of the status of the bankrupt and a settlement and distribution of his estate. The exclusive jurisdiction of the bankruptcy court is so far in rem that the estate is regarded as in custodia legis from the filing of the petition. It is true that, under sec. 70a of the act of 1898, the trustee of the estate, on his appointment and qualification, is vested by operation of law with the title of the bankrupt as of the date he was adjudicated a bankrupt; but there are many provisions of the law which show its purpose to hold the property of the bankrupt intact from the time of the filing of the petition, in order that it may be administered under the law if an adjudication in bankruptcy shall follow the beginning of the proceedings. Paragraph 5, sec. 70a, in reciting the property which vests in the trustee, says there shall vest ‘property which, prior to the filing of the petition, (the bankrupt) * * * could by any means have transferred or which might have been levied upon and sold under judicial process against * * * (the bankrupt).’ Under sec. 67c attachments within four months before the filing of the petition are dissolved by the adjudication, in the event of the insolvency of the bankrupt, if their enforcement would work a preference. Provision is made for the prompt taking possession of the bankrupt’s property, before adjudication, if necessary (69a). Every person is forbidden to receive any property after the filing of the petition, with intent to defeat the purposes of the act. These provisions, and others might be recited, show the policy and purpose of the bankruptcy act to hold the estate in the custody of the court for the benefit of creditors after the filing of the petition and until the question of adjudication is determined. To permit creditors to attacli the bankrupt’s property between the filing of the petition and the time of adjudication would be to encourage a race of diligence to defeat the purposes of the act and prevent the equal distribution of the estate among all creditors of the same class, which is the policy of the law. The filing of the petition, asserts the jurisdiction of the Federal court, the issuing of its process brings the defendant into court, the selection of the trustee is to follow upon the. adjudication, and thereupon the estate belonging to the bankrupt, held by him or for him, vests in the trustee. Pending the proceedings, the law holds the property to abide the decision of the court upon the question of adjudication as effectively as if an attachment had been issued, and prevents creditors from defeating the purposes of the law by bringing separate attacli•ment suits, which would virtually amount to preferences in favor of such creditors. See in this connection the well-considered cases of State Bank v. Cox, 74 C. C. A. 285, 143 Fed. 91 (C. C. A. Seventh C); Shawnee County v. Hurley, (C. C. A. Eighth C.) 94 C. C. A. 362, 169 Fed. 92, 94.”
We have quoted thus at length "because the questions there decided are conclusive of the points raised by appellant; and upon the authority of that case we hold that the filing of a petition by Byrd’s creditors operated to impound the money then in his possession, and he could not defeat their right to have it applied towards the satisfaction of their demands.
It appears that Byrd and his wife took title to their homestead as tenants by the entirety, and it also appears that Mrs. Byrd was not a party to the bankruptcy proceeding. We think, however, that, notwithstanding these facts, no error was committed in adjudging a lien on the homestead to the extent of the thousand-dollar payment. The effect of the decree below is to adjudge that Byrd .con'd not put the money in property which was itself beyond the reach of creditors, and to compel its disgorge ment. West had a lien on the homestead to secure the payment of the $1,250 and the interest thereon. The court adjudged the thousand dollars was wrongfully paid West by Byrd, because of the pendency of the bankruptcy proceeding, and we concur in that view. West should therefore pay this thousand dollars to the trustee in bankruptcy, and when he has done so the payment to him is annulled and his debt is left unimpaired, as is also his security. It is to be assumed that West will refund the. thousand dollars to the trustee, as the court directs; and it is in the event only that he does not do so that the trustee is given the right to enforce the lien of West to the extent of this payment.
In other words, Byrd is denied the right of having the mortgage on his home reduced by the payment which he wrongfully made to West, and the creditors are awarded the benefit of this payment, and their right thereto is worked out either through West or against the property itself. This decree does Mrs. Byrd no injustice, although she was not a party to the bankruptcy proceeding, because she has no right to have the mortgage lien on her home discharged, in whole or in part, by a payment of money by her husband to which his creditors are entitled.
The decree of the court below is therefore affirmed. | [
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Smith, J.
Appellant, as trustee for himself and a number of others, bought an oil lease -from appellees on a ten-acre tract of land near El Dorado, for the sum of $20,000. The land covered by the lease was a part of a seventy-acre farm owned by A. J. Cornish in his lifetime. Cornish died in 1919, and was survived by his widow, a woman seventy years old, and seven children, all of whom were adults at the time the lease was made.
In 1921, soon after the discovery of oil in Union County, -appellee L. K. Cornish, a son of A. J. Cornish, acting for himself and the other heirs of his father, negotiated the lease to appellant. L. K. Cornish was a commercial traveler, and had not lived on the farm for twenty years. An abstract of the title to the land - was procured from a reputable abstracter in El Dorado, which appellant caused to be examined by his attorney. In connection with the abstract Mrs. Sallie Cornish, the widow of A. J. Cornish, made an affidavit which recited that her husband had been in the possession of the land leased for many years.
The title was approved and the purchase money paid, and appellant entered into a contract with Chai Daniels & Company to drill a well. The lease contract required the lessee to begin drilling a well within sixty days, and the drilling commenced about April 18 or 20. On May 9 notice was served on appellant that the land ' on which the well was being drilled was owned by the Rock Island Railroad Company, and appellant was ordered to vacate. The drilling was suspended for a few' days, during which time an effort was made to secure' 'permission to complete the well. This was not obtained, -and the drilling was resumed, and the well was completed in June.
The well was drilled in and bailed out after the service of the notice, this being,the final work done about the drilling of a well.
It appears that in 1908 A. J. Cornish sold to the Rock Island Railroad Company an irregular strip of land containing about one and a quarter acres of land, which the railroad company required as a part of ■ the land covered by its reservoir or water supply near El Dorado. The land sold the railroad company was a long narrow strip extending along the west front of thefarm. The deed was placed of record, soon after its execution.
Mrs. Cornish admitted she had signed a- deed to the railroad company in which she relinquished her dower, ■ but she is a woman of but little experience in business, and the land was described by metes and bounds, and she testified that she did not know that the land sold by her husband to the railroad company was included in the lease, in which the land leased was also described by metes and bounds; The abstract of the title, was defective in that it failed to show the conveyance to the railroad company, and none of the parties to this litigation had actual knowledge of the fact that a portion of the land embraced in the lease had been previously con veyed to the railroad company, and there is no imputation of fraud on the part of the lessors.
At the time the drilling began on this lease no wells had been drilled north, sonth or east of this well, bnt there was a producing well, known as the Boggs well, about eighteen hundred feet west of the land. As the drilling on the lease progressed there was a showing of oil, and when the well was drilled in and bailed out there was oil in the well. The well is what is known as a pumper, that is, a well out of which it would be necessary to pump the oil, but no pump was ever placed in the well, and its capacity as a producer remains conjectural. Mr. Galloway, the manager of the company which drilled the well, testified that, in his opinion, the well would produce from twenty to fifty barrels per day, but he expressed the opinion that it would not be profitable to install a pump if the production ran less than thirty barrels a day, and that he did not know for what time it would produce even the minimum capacity.
. J. A. Brake, the State Oil and Gas Inspector, testified that he was a geologist, and that he had many years’ experience in the oil fields. He testified that what oil . men and geologists know as a fault ran along the western boundary of this lease. This fault was about a quarter of a mile wide and three miles long, and the well on this lease was drilled in the western edge of the fault. He described a fault as being caused by the fold of the earth, which resulted from the manner in which the earth had cooled, and that this fault defined and limited the oil field on its western side. After appellant commenced drilling this well, other wells were begun north, south and east of this well, but all were dry holes, thus proving positively that the fault terminated this field. Brake further testified that the only part of this lease on which oil could have been found was along its western border, where the well was drilled. He testified that a survey of this field was made by geologists in the service of the Federal Government, in which he participated, in March, 1921, and that the fault was located and platted the latter part of March or the first of April, 1921, but the report had not been given to the public when appellant bought his lease, and neither the lessors nor the lessee knew of this fault when the lease was given. Brake testified, however, that he notified the drillers shortly after they commenced drilling of the presence of this fault, and advised them against continuing the drilling.
Brake also testified that, but for the presence of this fault, any part of the lease would have been regarded as oil land, and that any one acre was as valuable as any other acre for that purpose, but that it was the custom always to drill nearest production, that is, nearest a well which was producing oil.
•Galloway testified that, when he commenced drilling, . the entire ten acres looked like producing territory, and there was no difference in the value of any part of the lease, but that the drilling was begun on the west side of the lease because this was the side nearest to the Boggs well.
There is no intimation of fraud in this case. On the contrary, there is a disclaimer of any intention to charge fraud to the lessors, and, in our opinion, all parties acted in entire good faith. But for the mistake of the abstracter the lease would no doubt have been drawn to exclude the strip of land sold the railroad company, and there was no collusion between him and the lessors. The abstracter’s mistake was probably due to his failure to comprehend the descriptions of the area sold to the railroad company.
Appellant has demanded the return of the entire purchase money paid by him, and the-sum expended in drilling the well. The lessors tendered the proportionate part of the purchase money covering the acre and a quarter to which the title had failed, and the decree of the court was for the return of that sum, and for that amount only, and this appeal is from that decree.
We áre of the opinion that the decree of the court below is correct. There was no fraud practiced, and a case for rescission has not been made. The rule to be applied here is that announced in the case of Fitzhugh v. Davis, 46 Ark. 337, where the court said: “The rule is, to entitle a vendee of land, who has gone into possession under a deed with general covenants of warranty, to rescind on the ground of failure of title, the loss must be of such character as that he is thereby deprived substantially of the benefits of his purchase; but if the beneficial enjoyment of his contract be not materially taken away, and there is only a partial failure of consideration which can be compensated in damages, there is no case for rescission.”
The thing really bought was the right to explore for oil, and the prospect of finding oil was the thing which gave the land its great value. It has now been determined that, because of .the fault, the land is dry territory, just as is the land north, south and east of it, and for the same reason. This exploration was made by appellant 'himself, or for him, and on land to which the title failed.
If the well drilled- was a producing, profitable well, we would have a question not presented by this record; but, as we understand this testimony, the entire lease is, practically speaking, dry territory, and appellant has had the benefit of his lease, which was the right to explore for oil. No oil was found in paying quantities, and the value of the portion to which the title failed is no greater than that of the remainder, and, in our opinion, the equities of the case are met by returning to appellant the proportionate part of the purchase money to cover the area to which the title failed. Such was the decree of the court below, and it is affirmed. | [
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Humphreys, J.
Appellee instituted suit in the chancery court of Polk County to cancel an alleged void tax sale in 1918 for the taxes of 1917, assessed against á certain fourteen-acre tract of land owned by her, the deeds made pursuant thereto, and to recover possession thereof. Such tract of land was described in the bill and deeds exhibited therewith evidencing appellee’s chain of title, as being in Polk County, State of, Arkansas, and as "follows: • -
“Beginning east of the NW corner of the NW% of the SW1/^, section 1, township 5, range 32 yrnst, six chains and 33 links; thence south 10 chains and 20 links to a stake and whiteoak, fifteen inches in diameter, from said stake and whiteoak, south twenty degrees W. 40 links, also whiteoak seventeen inches in diameter S. 44 degrees, east 52 links; thence south 12 degrees and 43 minutes, east 5 chains and 14 links, from which whiteoak 15 inches in diameter N. 7 degrees, W. 10 links; thence south to the south line of said NW% of the SW34; thence east along said south line 6 chains and 42 links; thence north to the north line of said NW% of the SW^; thence west along said north line to place of beginning, containing fourteen acres, more or less.”
A demurrer was filed by appellant, attacking appel-lee’s title upon the ground that the description of the 14-acre tract in the bill and deeds was indefinite, uncertain, and insufficient to support the action. The demurrer was overruled by the court, over the objection and exception of appellant.
An answer was then filed, denying the material allegations of the bill, and the cause was submitted to the court upon the pleadings and testimony. When the deeds evidencing appellee’s title were offered in evidence, ap-pellee objected to their introduction upon the ground that the description of the land described in each was not sufficiently definite upon which to base the action. The court overruled the objectipn, to which ruling an exception was saved by appellant. A decree was rendered in favor of appellee for the land, and in favor of appellant for the value of betterments placed thereon by him. An appeal from that part of the decree adverse to appellant was perfected, and the cause is here for trial de novo.
The land in question was forfeited and sold for the taxes of 1917 under the following description: “Part of the NW^ SW1/^, 1-5-32.” L. V. Simpson purchased the land at the tax sale for $3.49, and sold it to Younee, who sold it to appellant for six hogs. Appellant took possession of it 'and made .some substantial improvements ther.eon. The invalidity of the tax title is admitted, because the description under which the land was forfeited and sold was not. sufficiently definite to identify any particular land. The sole question therefore presented by this appeal is whether the description contained in the bill, und deeds evidencing appellee’s title, is sufficient to identify said fourteen-acre tract of land. The rule is that a deed is not void for uncertainty of description if the land can be located from the description in the deed. If the descriptive words in the deed furnish a means for identifying the land conveyed, nothing more is required. The beginning point of the description in question is definitely located. Proceeding from that point the first call is definite, certain, and complete down to and including the word “diameter.” The latter part of the first call, and the only part of the call in which uncertainty is claimed to exist, was clearly inserted to describe witness or bearing trees' of certain dimensions, in certain directions and at certain distances from the whiteoak tree at the end or terminus of the first call.' The first call was definitely described without witness or bearing trees, and if there is any uncertainty in tiie location of the witness or bearing trees, the location of such witness or bearing trees should be treated as surplusage in reading the call. The second call is definite, certain, and complete down to and including the word “links.” The last part of the second call was apparently thrown in for the purpose also of designating a witness or bearing tree near the terminus of the call, and is the only part of the call in which uncertainty is claimed to exist. The uncertainty or indefiniteness of explanatory terms, attempting to aid a description of land, should not be permitted to destroy a description already certain a,nd definite. The last parts of the first and second calls are meaningless unless they be treated as nn attempt to describe bearing trees or the termini of. the calls. They were certainly not intended as calls within themselves. They did not aid the definite and certain calls to which they were added, and, being indefinite, must be eliminated as surplusage in reading the calls. 8 R. C. L., 128. It is not contended that the other calls are indefinite and uncertain.
The decree is affirmed. | [
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Smith, J.
This is the second appeal in this case, and a summary of the testimony may be found in the former opinion. Flake v. State, 156 Ark. 34.
^Practically the same testimony was offered at the second trial as in the first, there being testimony on behalf of defendant from which the jury could have found that defendant was insane, and that, if he did in fact kill the deceased, he did so in self-defense, or under circumstances which reduced the grade of the homicide to voluntary manslaughter. In accordance with our former opinion, instructions to the jury submitted- all these questions. Defendant was found guilty of murder in the second degree and given a sentence of twenty-one years in the penitentiary.
For the reversal of the judgment it is insisted that the court erred in interrupting defendant’s counsel in the opening statement to the jury by holding that certain statements were incompetent. But the court later admitted this testimony, and we think that action cured the error of the first ruling.
Error is assigned in giving, over defendant’s objection, an instruction numbered 4, which reads as follows: “Manslaughter is the unlawful killing of a human being, without malice, express or implied, and without deliberation. Then the distinguishing point between manslaughter and murder is the absence of malice, the absence of hatred, the absence of an act cruelly done, wickedly done, the absence of an act done without regard for the rights of a human being, and, in addition to that, it must be done upon a sudden heat of passion apparently sufficient to make the passion irresistible, hence it follows that, if the defendant killed the deceased Wallace Wilson, and lie killed him in the absence of premeditation and deliberation, and in the absence of malice, he must have killed him, in order to constitute manslaughter, from some overt act that Wilson committed just before he struck the fatal blow. If he killed him because of any difference that had existed in the past, after which sufficient time had elapsed to give his passion time to subside, it would not be manslaughter, because it could not be the result of a sudden heat of passion.”
The objection to the instruction is that the court told the jury there must have been some overt act on the part of the deceased, just before the defendant struck the fatal blow, to reduce the killing to manslaughter. Another objection to the instruction is that it is argumentative in form.
We dispose of this last objection first by saying that the instruction is argumentative in form, and ob- Actionable on that account. This is a defect which ought never to exist, as it is not a function of the court to argue cases. The court should be content to declare the law applicable to the issues of the case, and leave the argument to the attorneys. But, while objectionable as being argumentative in form, we do not reverse the judgment on that account, as the instruction contains no expression of the court’s opinion, and is a correct statement of the law under the issues joined, as will appear from our discussion of the first objection made to it.
The instruction was not objectionable in requiring the jury to find there was an overt act to constitute manslaughter. As appears from the former opinion, the defendant’s chief defense was insanity, and that defense was chiefly relied upon at the second trial. The law of that subject was fully declared, in instructions to which no objections were made, and the jury was told to acquit the defendant if they found he was insane.
The instruction numbered 4 deals with the defense of justification and mitigation. The defendant testified that the deceased assaulted him, and thus so aroused his passion as to make the impulse to kill irresistible.
There was also testimony that, in defendant’s unbalanced mental condition, he became insane by brooding over the wrongs done his sister by the deceased, her husband, one of these being he had suffered her to be ravished by his associate in the crime of making moonshine whiskey, and had made no effort to have the rapist answer for that crime before the law. So that it was not improper to tell the jury that, if the killing was done because of the sense of wrong, the offense was not reduced to manslaughter if sufficient time had elapsed for the passion to subside, and that the offense was not manslaughter unless there was an overt act which so inflamed defendant’s passion as to make the impulse to kill irresistible.
There.was another instruction, which dealt with the right of self-defense, but, of course, the whole law of the case could not he declared in a single instruction.
It is insisted, for the reversal of the judgment, that the verdict was contrary to the evidence, in that the undisputed testimony shows the defendant was insane. We do not so interpret the testimony, for, while the jury might have found defendant was insane, this was not the only reasonable view of the testimony, considered in its entirety. Indeed, this was very properly a question for the jury, and there was testimony legally sufficient to support a finding that defendant was sane, or that he was insane.
The defendant was cross-examined at great length by the prosecuting attorney, and the court finally questioned him, and the following questions were asked and answers given in response to the interrogatories of the judge: “Q. George, did you use your team or your father’s the next day after this trouble, when you were getting worried over there? A. I don’t know. Q. You did buy a team from him? A. I don’t know that. Q. When you went back to the house and told Wallace Wilson’s wife he had gone off, why did you tell her that? A. I don’t know that I told her that. Q. Who helped you cut that hay? A. I don’t know. Q. Did you drive the machine? A. I don’t remember cutting any hay. Q. Was your arm hurt pretty bad? A. I don’t know. Q. Did you tell any of the folks about your arm being hurt ? A. I don’t know that, Judge. Q. If you did cut hay the next day, your arm wasn’t hurting very bad, was it? A. I don’t know that. Q. Was your head sore? A. I don’t know that. Q. Do you remember anything about your head hurting you any? A. I don’t know. Q. When you were over here in jail and any of the parties would come up, you would go and jump in bed, cover up your head, and those darkevs would pull the cover off? A. I don’t know that. Q. Do you remember, after the jailer would go down, that you would get up and take the cover off of your head? A. I don’t remember.”
The defendant asked an instruction, numbered 18, reading as follows: “You are instructed that you should disregard the question asked by the court of the defendant regarding the defendant covering up his. head in bed while in jail when the sheriff would come into the jail and then uncovering and getting up when the sheriff would leave.”
The court refused this instruction, but gave, over defendant’s objection, an instruction numbered 10, reading as follows: “Now, it is a principle of the law generally that any person who is incapable of distinguishing between right and wrong, or who is incapable of controlling their passion because of a diseased condition of the mind, that they cannot be held accountable and responsible, but it is always incumbent upon them to establish that fact by a preponderance of the evidence, and in determining this question you have a right, and it is your sworn duty, to exercise your common sense, your good judgment and your every day experience in weighing and considering this testimony, and ascertain whether or not such defense is interposed in this case to excuse one who, under the contentions of the State, has taken the life of his fellow man, and is offering, for the purpose of excusing his own alleged criminal acts, or whether such diseased condition of mind existed prior to and at the time of the taking of the life of the deceased. In other words, ascertain from the testimony, from the circumstances, from the surroundings, from the acts of the deceased and the defendant, whether or not this defense is interposed here ■ at this time in an honest belief of the existence of its merits, or whether interposed for the purpose of acquitting a man charged with the offense of murder in the first degree, and the other degrees of murder, as included in this indictment.”
It is now insisted that the court’s questions, in ' connection with instruction numbered 10,' constituted a comment on- the testimony. And we have concluded that such is the case. Instruction numbered 10 is argumentative in form, and objectionable as -such, but, read by itself, it contains no expression of opinion, and we would not reverse the judgment for the giving of this instruction if it did not appear to constitute a comment on the testimony, when read in connection with the examination of the defendant by the court.
The court’s questions are very significant. If defendant did what the questions imply, then he was probably feigning insanity. We find no predicate in the testimony of any witness in the case for these questions. No witness had testified that the defendant had done the things there inquired about. The trial court was right to ask questions, and it is not an improper thing to do when the testimony is obscure_upon some point; and it is also proper to develop the facts in regard to some feature of the case which the court thinks has no’t been properly developed'.
The court’s questions did not tend to remove any obscurity. Indeed, they have the opposite effect. One cannot tell the purpose of the questions unless-they were intended to develop some point about which the court had personal knowledge but about which no witness had testified. It does not appear who the parties were who apparently caught defendant feigning insanity by jumping in the bed and covering up his head, and the court’s questions did not ask the defendant merely if he did this, but asked him if he remembered doing it, the clear intimation being that he had done the thing inquired about. This questioning, when followed by an instruction for the jury to ascertain from the testimony, from the surroundings, from the acts of the deceased and the defendant himself, whether or not the defense of insanity is interposed honestly or for the purpose of acquitting one charged with murder, constitutes, in our opinion, a comment on the testimony.
The trial court is forbidden by the Constitution from charging juries in regard to matters of fact, and, as we think there has been an infringement of this provision, the judgment is reversed, and the cause is remanded for a new trial. | [
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McCulloch, C. J.
Appellant was convicted on the - following indictment (omitting caption) :
-‘‘The said Ed Tumbleson, on the 3rd day of July, 1922, in the county and-district aforesaid, did unlawfully and feloniously possess and have in his possession a certain still, worm and boiler for the purpose and intention of using the same for the production of distilled spirits and for the distillation and manufacture of alcoholic and intoxicating liquors, against the peace and dignity- of - the State of Arkansas.”
The indictment was framed under the second section of act No. 324 of the General Assembly of 1921 (Acts 1921, p. 372). There was a demurrer to the indictment, which the court overruled, and on the trial of the-.case the State introduced testimony tending to show that there were found on appellant’s farm, near Ms house, a copper stillworm, a five-gallon metal oil can, and a -lot of mash. These articles were not connected together so as to constitute a still; but were found in close proximity, and there were indications that a still had been operated there.
The evidence was sufficient to sustain a finding that appellant had set up and operated an .improvised distillery for the purpose of manufacturing distilled spirits. McGarity v. State, 151 Ark. 423.
The most serious question in the case. is whether the. language of the indictment is sufficient to charge an offense under the statute, and the Attorney General confesses error on this point.
It is clear that the indictment is not sufficient, under the first part of the section mentioned above, for the reason that there is no allegation that the still or still-worm was not registered. In order to. constitute an offense under that part of the section there must be such an allegation. McIntyre v. State, 151 Ark. 458.
The language of the indictment is somewhat confused by the use of the comma between the words “still” and “worm,” but it is evident that the pleader did not intend to use .the word “still” separately from the word “worm” so as to charge the possession of a complete still. It is clear that the meaning was to charge the possession of a stillworm and boiler.
The further question arises, then, whether or not •the language of the indictment is sufficient to charge the offense of setting up a still, or a substitute for a still, within the meaning of the latter part of section 2 of the statute. In the recent case of Hodgkiss v. State, 156 Ark. 340, we undertook to make an analysis of this part of the. statute, and in doing so we said:
“The latter part of section 2 relates to the setting up of the apparatus for use as a distillery, and the thing or things set un must be susceptible of that use. A stillworm cannot alone be used as a distillery, neither can a ‘kettle, waslipot, metal tank, or any other vessel’ alone be so used. The'language relates to a complete distillery, technically speaking, or to any substitute therefor, ‘which, after being set up, may be used for the production of distilled spirits.’ It will be observed that the words, ‘any stillworm or substitute therefor,’ are conjunctively joined with the words ‘a still or substitute therefor, ’ which bears out the interpretation that, in order to constitute an offense under this part of the statute, the apparatus set up must be complete so that it may be used for the production of distilled spirits. This part of section 2 of the statute, and section 3 thereof, overlaps to some extent in effect, but an indictment may be framed in the language of either. The indictment in this case was intended to state an offense under the latter part of section 2, but it merely charges the setting up of ‘a certain trough as substitute for a still, for the purpose,’ etc. It does not charge the setting up of a worm in connection with the still, nor that the trough was a thing ‘which, after being set up, may be used for- the production of distilled spirits.’ A trough may be fit for use as a part of the apparatus for the distillation of spirits, but it cannot alone be used for that purpose.”
It is not charged, in so many words, in the indictment that the accused set up a still, but the charge is that he did “possess and have in his possession a certain still, worm and boiler for the purpose and intention of using the same for the production of distilled spirits.” Nor is it charged in the indictment that the stillworm and boiler were contrivances “which, after being set up, may be used for the production of distilled spirits.” Under this part of the statute the indictment must either charge the setting up of a still, or it must charge the settingup of substituted contrivances or articles “which, after being set' up, may be used for the production of distilled spirits.'” Of course,' where the charge in the indictment is that a'still is set up for the purpose of producing distilled spirits, it is unnecessary to allege that it is such a contrivance as may he used for that purpose, for the definition of the word “still” sufficiently indicates its use; hut where there is an attempt to charge the setting up of a substitute, then there must be a charge that such substitute is susceptible of use as a still, or, in the language of the statute, “after being set up, may be used for the production of distilled spirits.”
This indictment neither charges that a still was set up nor such a substitute as could be used in the production of distilled spirits. For that reason the indictment is insufficient, and the court should have sustained appellant’s demurrer.
Reversed and remanded, with directions to sustain the demurrer, and for such further proceedings as the court may deem advisable. | [
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Smith, J.
Appellant is a practicing attorney in the city of Little Nock, and has declined to pay tbe occupation tax assessed by an ordinance of that city upon attorneys. He was fined for bis refusal, both in tbe municipal court and in tbe circuit court on appeal, and .has prosecuted this appeal to reverse that judgment.
Section 7618, C. & M. Digest, authorizes cities of tbe first and second class to enact ordinances requiring every person, firm, individual or corporation engaged in any trade, business, profession, or vocation, to procure a license so to do.
An ordinance enacted pursuant to this statute was upheld in tbe case of Davies v. Hot Springs, 141 Ark. 521.
Tbe statute contains an exemption in favor of “such persons, firms, individuals or corporations who pay a tax to tbe city or State on gross incomes,” such persons being exempted from tbe requirements of tbe statute. Tbe statute authorizes the city to classify tbe persons subject to the tax, but, after doing so, provides that “no classification shall be based upon earnings or income.”
Pursuant to this statute, tbe city of Little Nock enacted an ordinance fixing tbe license to be paid by practicing attorneys, and it was for bis refusal'to pay this' license that appellant was fined.
By act 345 of tbe Acts of tbe General Assembly of 1923, approved March 8, 1923, a tax for tbe benefit of the public schools of the State was imposed upon the entire gross income of every resident of the State. The term “gross income” is defined in the act to include gains, profits, and income derived from salaries, wages, or compensation for personal service, or .from professions, vocations, trades, businesses, commerce, or sale, etc.
Appellant earns an income from his profession, and hah become subject to the payment of this tax, and he says that, having become subject to the payment of this tax on his income, he is now exempt from the payment of the municipal license fee, and he assigns this as his reason for his refusal to procure a city license. It will be observed that appellant does not attack the act of 1923. Indeed, he claims exemption from liability for the city tax through its provisions.
'On behalf of the city it is insisted, first, that the act of' 1923 is unconstitutional, and therefore does not repeal the city ordinance, and second, that the act of 1923, even if constitutional, is not in conflict with § 7618, C. & M. Digest, pursuant to which the city ordinance was passed.
As we are of opinion that the city is correct in its second insistence, we do not consider the constitutionality of the act of 1923, for, as we have said, appellant not only does not attack it, but relies on it to excuse his failure to pay the city tax.
It is the insistence of appellant that the exemption in favor of persons “who pay” a tax on gross incomes refers to those who pay at the time any particular act is passed imposing a tax on gross incomes as to them; and in this he is correct, so that, if the act of 1923 contained no other provision on the subject, the effect of its enactment would be to exempt from, liability for the city license all persons who are required to pay tax on incomes under the act of 1923; but there is another section of the act of 1923 which, we think, must be looked to to ascertain the legislative intent. It reads as fol lows: “Section 24. The taxes imposed by this act are in addition to all other taxes imposed by law, and are levied for the sole nse and benefit of the public schools for the State of Arkansas.”
All new legislation must be construed with reference to existing’ legislation. Thompson v. Road Imp. Dist., 139 Ark. 136; Board of Dir. v. Williford, 120 Ark. 415; Benton v. Willis, 76 Ark. 443.
Section 7618, C. & M. Digest, does not authorize the cities to impose an income tax as such. The authority it confers is to impose an occupation tax; and one subject to it must pay the tax although he derives no income from his attempt to practice his profession or vocation; indeed, it is expressly provided that no classification. shall be based upon earnings or income. So therefore the General Assembly was advised that an occupation tax was levied in the cities, or was authorized to be levied. Now, the acl of 1923 is an additional tax. It was not enacted to relieve any one from the payment of any tax to which he might be subject under the existing laws. The Legislature, ,no doubt, anticipated that questions would be raised as to the purpose and effect of the act, and it sought by § 24 to furnish its own interpretation, and that is that the taxes imposed by this act are in addition to all other taxes imposed by law.
It is a new tax, and a tax in addition.to all other taxes, made so by the express language of the act itself. It is levied upon the income, and is measured by the amount of the income, and we think the legislative intent is clear to impose more taxes, and not to relieve anv one from any impost to which he was otherwise subject.
Under this view, appellant should pay the city license, and the judgment of the court imposing a fine for not doing so is affirmed. | [
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McCulloch, C. J.
This case involves the priority of claims of the respective parties to crops of wheat and oats, both claims arising just after the crops were planted, and while immature. The claim of appellant is based on a chattel mortgage executed by the owner of the crop, a tenant on the farm of a third person, and the claim of appellee is based on the levy of an execution on said crops while immature, the writ being issued by a justice of the peace. In other words, the controlling question is whether growing immature crops are subject, to levy and sale under execution issued by a justice of the peace. The crops were planted about the middle of October, 1921. The execution was issued and placed in the hands of the officer on November 23, 1921, and the mortgage was executed to appellant on November'29, 1921, .by the tenant who planted the crop.
It seems to have been the rule at common, law that growing crops, whether mature or immature, requiring periodical cultivation and technically classed as “fruits of industry,” were subject to levy and sale under execution as personal property, and a majority of the American cases declare that to be the correct rule of law. The rule is based on the theory that such crops are chattels, not forming a part of the realty, and, on the death of the owner, descend to the administrator and not to the heir. Many cases on this subject are collated in 15 Standard Proc. 892. Many of the decisions classed among those announcing that rule are based upon local statutes, and many of them merely declare the rule as applicable to the operation of the statute of frauds in the sale of such property. It must be conceded, however, that a majority of the eases declare it to be the rule that such crops are subject to sale under execution as chattels, but there are decisions to the contrary, and they appeal to us as being more reasonable and in harmony with our own statutes and decisions.
In Penhallow v. Dwight, 7 Mass. 34, the court draws a sharp distinction between mature and immature crops with respect to the right to levy an execution thereon, and holds that immature crops are not subject to execution because they cannot be immediately severed from the soil. The court in that case said:
“And we have no doubt that corn, or any other product of the soil, raised annually, by labor and cultivation, is personal estate, and would go to the executor and not to the heir, on the decease of the proprietor. It is therefore liable to be seized on execution, and may be sold as other personal estate. An entry for the purpose of taking unripe corn or other produce, which would yield nothing, but in fact be wasted 'and destroyed by the very act of severing it from the soil, would not be protected by this decision. ”
In Ellithorpe v. Reidesil, 71 Iowa 315, it was held that immature crops are not subject to levy under execution, and the court said:
“There is no pretense that the constable had any authority or power to levy on or sell any interest in the real estate. Nor is it claimed that he did so. The whole proceeding was on the theory that the crops were personal property, and could be. levied on and sold as such. But while they remained immature, and were being-nurtured by the -soil, they were attached to and constituted part of the realty. They could no more he levied upon and sold on execution as personalty than could the trees growing upon the premises.. This doctrine is elementary, and it has frequently been declared by this court. ’ ’
The same doctrine is declared in the case of Tipton v. Martzell, 21 Wash. 273. The decision in that case was based primarily on the ground that the crop was being grown by a share-cropper, and that a sale would conflict with the contract between the rights of the landlord, but the court recognized the general rule that the immature crop, while still being nurtured by the soil, was a part thereof, and could not be sold while in that condition.
The reason which appeals to us as favoring the latter rule is that a sale of chattels under execution contemplates an immediate separation - from the- estate of the judgment debtor and a delivery to the purchaser, and it is obvious that this cannot be done where the growing-crop is immature and n-ot ready to be -severed from the soil. It requires time and, in most instances, additional labor to bring the crop to maturity, hence the mere right of ingress and egress for the purpose of severing the crop does not eliminate the impediments to the sale.
The common law of England has been adopted as a part of the laws of this State to the extent that “the same is applicable and of a general .nature” and “not inconsistent with the Constitution 'and laws of the United States and’the Constitution and laws of this State.” Crawford & Moses’ Digest, § 1432. We are of the opinion, however, that the common-law rule with respect to sales of crops under execution is impliedly in conflict with our statute which provides that leasehold estates shall not he subject to sale under execution issued by a justice of the peace. Crawford & Moses’ Digest, § 4271. It may be that sales of immature crops under executions issued from courts of record may. be upheld on the ground that such a sale of the crop is to that extent a sale of the lease, but this cannot be so with reference to a sale under an execution issued by a justice of the peace. A sale under such an execution can confer no rights with respect to real estate or anything appurtenant thereto, and the right to enter upon land for the purpose of cultivating crops to maturity necessarily affects the land as much so as the removal of things which are appurtenant to and constitute a part of the land itself. It is otherwise, of course, where the crops are matured and only remain to be severed, for in such case the matured crop is in no different class than any other chattel situated on the land.
Our conclusion therefore is that it is inconsistent with our own statutes to hold that immature crops can be sold under an execution from a justice of the peace. There are other questions involved in this case, but as the one now decided is conclusive, it is unnecessary to discuss the others.
The judgment is therefore reversed, and the cause is remanded, with directions to enter a decree in favor of appellant for the proceeds of the sale of the mortgaged crop, which is being held by agreement to await the decision in this case. | [
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Wood, J.
On May 14,1923, the petitioners filed with the clerk of this court a transcript of the record of the proceedings had in their cases in the Lee Circuit Court, and prayed an appeal from the order of that court overruling the motion to discharge them. Along with this record they filed a petition to this court in which they alleged that they were indicted for murder in the first degree in the Phillips Circuit Court at the October, 1919, term; that they were twice tried and convicted in that court, and, on appeal to this court, the judgments were reversed, and the causes remanded for a new trial; that at the May, 1920, term of the Phillips Circuit Court a change of venue was granted them and their cases were transferred to the Lee Circuit Court; that at the October, 1921, term of the Lee Circuit Court the cases were continued by consent; that at the April, 1922, term of that court the petitioners filed a motion to have their cases set for trial on a day of that term; that the cases were not tried .at that term, but were continued without the consent of the appellants, who were present and demanded a trial ; that at -the October, 1922, term of that court the appellants again filed a motion in open court asking that their cases be set for trial' on a certain day; that the cases were not tried at that time, but were continued, in spite of the fact that the appellants were present demanding a trial.
Appellants further alleged that at the April, 1923, term they filed in open court a motion for a discharge on the ground that they had not been brought to trial before the end of the second term of the court having jurisdiction to try their cases; that the court, upon hearing the motion, found that there had been time to try the causes at the April and October, 1922, terms; that the petitioners had not consented to a continuance of their causes, but the court overruled the motion to discharge. The petitioners moved for a new trial, which was overruled, and they prayed an appeal to this court, which prayer was denied.
The petitioners further alleged that they had been confined in jail in Phillips and Lee counties since the finding of the indictments, and that they are now confined in the Lee County jail. They alleged that, by reason of the delay on the part of the State, they have not been brought to trial before the end of the second term of the court having jurisdiction of the causes, and that, under the Constitution and statutes of this 'State, they are entitled to be discharged from the offenses for which they are indicted. They alleged that the Lee Circuit Court, at its next October term, will proceed to try them, unless prevented by this court, which trials will cause these peti-f tioners to spend large sums of money in defense, which! they are unable to bear; that the Lee Circuit Court is-’ without jurisdiction to try them. Wherefore, they pray that an appeal be granted by this court from the final order of the Lee Circuit Court overruling their motion to discharge, and that they be discharged from said indictments and from custody.
There is an alternative prayer in their petition for a writ of certiorari directed to the clerk of the Lee Circuit Court, commanding him to certify the transcript of the record of the proceedings in the Lee Circuit Court on their petition for discharge, and the further alternative prayer for a writ of prohibition directed to the judge, of the Lee Circuit Court and the prosecuting attorney of that circuit, prohibiting him from proceeding to try the petitioners. The record filed along with the petition shows a motion for discharge in the Lee Circuit Court, in which the facts, substantially as alleged in the petition here, are set up, and a response to that motion, in which the prosecuting attorney -admits that the defendants were twice tried and convicted, as set up in their motion, and that the causes are now awaiting trial. He denies that the causes were continued, as therein alleged, without the consent of the defendants, but alleged that the defendants did not move to have their canses set down for trial at the October, 1922, term of the Lee Circuit Court until it was too late to try these causes during the regular term of that court, and, upon the application of the defendants, the regular October, 1922, term of that court was adjourned until December 11, 1922, for the express purpose of trying these causes; that on the day set for the adjourned term of the Lee Circuit Court the regular term of the Phillips Circuit Court was in session, and the adjourned term of the Lee Circuit Court lapsed for that reason.
The prosecuting attorney alleges that the continuances complained of have been brought about by the consent and at the solicitation of the defendants. The response to the motion to discharge further set up that the State could not get ready to try the causes at that term of the court, for the reason that the witnesses who testified for the State in the two preceding trials, and on whom the State relied for conviction of the defendants, are now confined in the Arkansas State Penitentiary. The prosecuting attorney alleged that he had been informed that these witnesses have recently repudiated their former testimony, and that they will not, if the causes are now tried, testify to the same state of facts testified to by them in the two former trials. He further alleged that, since discovering the fact of repudiation of these witnesses of their former testimony, the State had not had time to ascertain the whereabouts of other witnesses who knew and would testify to substantially the same state of facts. He further alleged “that by reason of the fact that the homicide charged against the defendants was committed three and a half years ago, witnesses whom the State desires to have subpoenaed have become scattered over the State of Arkansas and in many other States, and that the State has not had sufficient time, by reason of said facts, to have the necessary witnesses brought to this court; that it will be impossible, or practically so, to locate the present whereabouts of these witnesses, who are now living in various communities over the State, and to have them served with process sooner than the next regular fall term of this court; that the testimony of these witnesses is material, and that the State cannot be ready for trial at the present term of this court.”
The record shows that, on the hearing of the motion, the defendants (petitioners) called as a witness Ed Ware, one of the defendants, who testified, in substance, that he was one of the defendants indicted for murder in the first degree in the Phillips Circuit Court; that he had never consented to the continuance of his case. It is admitted by the State that the other defendants would testify the same.
The clerk of the Lee Circuit Court testified, in substance, that the April, 1922, term of the Lee Circuit Court was in session eleven judicial days out of a total of three weeks, or eighteen judicial days for that term. These eases were not set for trial at that term. On the eighth day of the term a motion was filed by the defendants to have the causes set down for trial. This motion was filed April 6, 1922. The record does not show any action taken on the motion. The October term, 1922, was in session ten judicial days when it adjourned until December 11,1922. At that term the defendants filed a motion to set their cases down for trial. The cases were set for the second Friday. The second Friday the court was engaged in trying another case, State v. Cothran, which was not completed until the next day, Saturday. On that day, while the Cothran trial was proceeding, the court excused the regular panel of the jury for the term, except those engaged in the trial of the Cothran case. The court did not meet on December 11, the day fixed for the adjourned term. The record does not show that the cases against the defendants were continued until the second Monday in December. The record does not show for what purpose the adjourned day was to be held.
Judge J. M. Jackson, who was the judge of the Lee Circuit Court at the time the proceedings were had, testified, for the State, that a motion was filed on the sixth day of the October term by the defendants to set a day for the trial of their cases. The motion was granted, and the cases were set for the second Friday. On the second Friday the court was engaged in the trial of State v. Coth-ran, on trial for murder. The purpose of adjourning the Lee Circuit Court until December 11, 1922, was to try these defendants. Mr. Burk Mann was present as their attorney, and filed the motion and discussed the cases with the court. He said that he had not collected his fee and that on that account he consented in open court to the adjournment until December 11 for the purpose of trying these cases. The Phillips Circuit Court meets after the adjournment of, the Lee Circuit Court, and the Phillips Circuit Court was in session at Helena on December 11. That is the reason the adjourned term of the Lee Circuit Court was not held. After the jury in the Cothran case was impaneled, witness excused the remainder of the jury for the term. The cases against the defendants were not, tried at the regular October term, for the reason that witness and the attorney representing the defendants had agreed on a special term of the Lee Circuit Court for December 11, 1922, to try them, and for the further reason that there was not sufficient time to try them. There was a full week of the Lee Circuit Court after the trial of the Cothran case. Witness was asked this question: i£Q. Then it was not for the lack of time that they were not tried? A. Yes, it was. Q. Couldn’t it have been tried? A. Not with Mr. Smith and you and the other attorneys in this case examining the jurors. I don’t think, if you had had a full week, you could have started. Q. You had a full week after Saturday to try them? A. Oh, possibly we could have tried one — maybe two. ’ ’ The agreement to a continuance of the case was in open court.
Burk Mann was called in rebuttal by the defendants, and testified that he was one of the attorneys for the defendants, and filed the motions requesting the setting of the cases for trial. At neither the April or the October terms, 1922, did witness consent to a continuance. Judge Jackson was mistaken. Witness did not consent to a continuance or to having the cases set down for trial at the adjourned term in December. Witness called the attention of the court to the filing of the motions at the time. As soon as the court got through with the Cothran case the court adjourned, and witness was not present at that time.
R. D. Smith testified for the defendants, in rebuttal,’ that he was one of their attorneys; that he had no knowledge of the continuance or of an agreement to continue, and did not himself agree or acquiesce in a continuance of the cases.
The written motions that were filed to have the oases set down for trial were as follows: “Come the defendants in the above styled cause by their attorneys, Mann & McCulloch, and Murphy, McHaney & Dunaway, and move the court to set their cases for trial for a day certain during the present term of court.”
The order overruling their motion to discharge was as follows: “This cause being heard upon a motion to dismiss the prosecution and the response thereto, and the oral testimony introduced in support of the response, the court finds the facts to be that there was sufficient jl time at the April, 1922, term of this court to try the causes: that there was sufficient time at the regular Octo-1 ber, 1922, term of this court to try the same; that there’ was not sufficient time at the adjourned day of the f October, 1922, term of this court to try the same, because the Phillips Circuit Court was in session on said adjourned day; that neither the defendants nor any one acting for them consented to a continuance ' of said causes either at the April, 1922, term or at the October, 1922, term, nor did the defendants nor any one acting for them consent to the continuance from the October, 1922, term to the adjourned day thereof on December 11, 1922. The court finds the law to he that said defendants were not entitled to he discharged upon said motion. It is therefore ordered by the court that the motion for discharge he overruled, to which ruling of the court the defendants at the time excepted, and caused their exceptions to be noted of record.”
The petitioners filed a motion for a new trial, setting up that the ruling of the court was contrary to the law and .contrary to the evidence. The motion was overruled, and the petitioners prayed an appeal to the Supreme Court, which the trial court denied, and they filed with the clerk of this court their transcript of the proceedings and the petition as above stated, praying an appeal to this court.
1. The Attorney General contends that the order of the trial court overruling the motion of the petitioners (hereafter called appellants) for their discharge is not a final order from which an appeal will lie, and hence the appeal is premature, and the appellants have not pursued the proper remedy. This presents the first question for decision.
The pertinent sections of Crawford & Moses’ Digest are as follows: “Sec. 3132. If any person indicted for any offense, and committed to prison, shall not he brought, to trial before the end of the second term of the, court having .jurisdiction of the offense, which shall be held after the finding of such .indictment, he shall be discharged so far as relates to the offense for which he was committed, unless the delay shall have been on the application of the prisoner.
“Sec. 3134. Nothing in the two preceding sections shall be so construed as to discharge anv -person who may have been indicted for any criminal offense, on account of the failure of the iuda’e to hold any term of the court, or for the want of time to try such persons at any term of the court.
“Sec. 3135. If, when application is made for the discharge of any defendant, under either of the three pre ceding sections, the court shall he satisfied that there is material evidence on the part of the State which cannot he had, that reasonable exertions have been made to procure the same, and that there is just ground to believe that such evidence can be had at the succeeding term, the cause may he continued to the next term, and the prisoner remanded or admitted to hail, as the case may require.”
If the statute is mandatory, and the facts developed at the hearing of the motion entitled the appellants to he discharged, then the order of the trial court overruling their motion to he discharged is a final order from which an appeal will lie. This court has appellate jurisdiction over final orders of all inferior courts of the State when such order affects a substantial right in 'an action, and in effect determines the action and prevents a judgment from which an appeal might be tafeen, or discontinues the action. Sec. 2129, C. & M. Digest, snbdiv. 2.
This court, in Batesville v. Ball, 100 Ark. 496-500, said: ‘ ‘But it may he correctly said that a final judgment from which an appeal will lie is one that either terminates ' the action itself, or operates to divest some right in such' - .a manner as to put it out of the power of the court mafe-' ing the order to place the parties in their former eohdi-' tion after the expiration of the term. ■ * * * When a lower, court renders a final judgment upon which an execution may issue, dr one dismissing the cause or the appeal, it thereby puts it out of the power of such court making the order, after the expiration of the term, to place the parties in their former condition, and thereby divests them of their rights, and such judgment or order is therefore final, and an appeal can he taken therefrom. * * * When an issue of law or of fact is passed upon by a court, and an order is made by it which determines the rights of the parties in the action finally, so far as that court is concerned, then such order becomes the final determination of the cause, from which an appeal will lie.”
If the facts existed which entitled appellants to invoke tbe provisions of the statute, then they had the right to their liberty when they moved the court having jurisdiction of their causes to discharge them, and proved the facts which entitled them to such discharge. The overruling of their motion would have the effect not only of depriving them of their liberty, to which they were entitled immediately from the time the motion was overruled, but also of subjecting them to the humiliation, annoyance and expense of a trial on the indictments. The 'statute, if mandatory, was intended to guarantee persons entitled to its provisions their liberty at the end of the second term of the court having jurisdiction of the offense after the finding of the indictment. They are entitled to their liberty at once at the end of such term. If the facts existed which entitled appellants to their discharge under the statute, then the effect of the court’s order was not only to deprive them of the boon of liberty, but to subject them to all the consequences of a trial, or else to resort to some other remedy to prevent it. It is unnecessary here for us to determine whether appellants could have secured their liberty by habeas corpus or whether they could have prevented the trial court from proceeding against them by prohibition. Suffice it to say, they had the right to move the court having jurisdiction of these causes to discharge them from the indictments; and, if they are entitled to such discharge, the granting of their motion by the court would have given them their rights under the statute, -whereas the overruling of their motion denied them such rights. No order or judgment that any court could have thereafter made would have placed them in the position and given them the rights they were entitled to at the time the order herein appealed from was made by the trial court. That order concluded all the rights they then had under the statute, if any, against them, and this is so even though, after the order overruling their motion, they may have resorted to habeas corpus in the same, or some other court, or to this court for a writ of prohibition. The right of immediate freedom and a discharge from all the consequences, of the offense charged against them were certainly most sacred rights. They hear the brand of ‘£ Magna Charta. ’’
Therefore, as before stated, our conclusion is that the order of the trial court overruling the motion of appellants was final, and their prayer for appeal is granted.
2. The next question is, did the court err in overruling apnellants’ motion to be discharged? We are not concerned with the policy of this law. That is for the Legislature. But, as its manifest purpose is to promote dispatch in the administration of justice, it must commend itself to the enlightened judgment of every one who loves law and order as a wise as well a.s humane enactment. “Justice delayed is justice denied,” says Mr. Gladstone. It is highly important to the public weal i that those accused of .crime shall he brought .to a speedy trial in order that, if guilty, public justice may be meted out without delay. This is as powerful a deterrent to the commission of public offenses as is the knowledge that condign punishment will follow when the lawbreaker is overtaken in his crime. It is also humane and just to the accused, who may be innocent, because it imposes upon the ministers of justice the obligation not to unnecessarily delay the trial of the charge which the State has lodged against him, and to afford him an opportunity to prove his innocence before he has been compelled to endure a prolonged punishment by imprisonment beyond the end of the second'term of the court after the term in which he was indicted. These were doubtless the dominant con- \ siderations in the minds of the Legislature when they enacted this statute. It has been a part of our laws ever.1 since the State had an existence. These sections are found in the Revised Statutes and in all our digests. They aré consonant with that provision of our Bill of Rights, art. 2, § 10 of the Constitution, which declares that “in all criminal prosecutions the accused shall enjoy the right ¡ to a speedy and public trial,” and also with art. 2* §- 13, which declares that “he ought to obtain justice freely, and without purchase, completely, and without denial, promptly, and without delay, conformably to the laws.”
This court, as early as Stewart v. State, 13 Ark. 720, in 'an opinion by Chief Justice WatkiNS, construed the above provisions of our statute, and held that, where the conditions exist which entitle the accused to invoke the statute, the provisions of § 3132, supra, are mandatory. It would unduly extend this opinion to quote at length from the opinion of the learned Chief Justice in that case, but a careful reading of the opinion will disclose that the court reached the conclusion that, unless the delay to bring the prisoner to trial by the end of the second term, after the term at which he was indicted, was caused through some necessity in the practical administration of the law, the prisoner would he entitled to an absolute discharge without delay; that the prisoner would ■ he entitled to a discharge where the delay of the State in bringing him to trial is for the want of evidence, “because the statute contemplates that, where the application is made and the grounds of it are well founded, the State may have a delay of one term more, if the judge be satisfied that there is material evidence on the part of the State which she has been unable to procure, but may procure by another term.” As we interpret that decision, the prisoner will be entitled to his discharge under the statute for want of prosecution — that is, by reason of a failure on the part of the State to demand trial and produce ;her evidence against the prisoner — unless the delay was for some other reason than simply a failure on the part of the State to demand a trial and bring forward its evidence. It is such want of prosecution on the part of those intrusted with the due administration of the law that this statute condemns by discharging the prisoner upon his application and a showing that the State had failed to prosecute as this statute required. Where he makes such showing, the court trying the issue is vested with no discretion in the matter. But to entitle the prisoner to snob, discharge be must place 'himself in -an at-, titnde of “having demanded a trial, at least in an attij tnde of resisting postponement.” ■ !,
In the later cases of Dillard v. State, 65 Ark. 404, and Fox v. State, 102 Ark. 393, the statute was again invoked and treated as mandatory, and the case of Stewart v. State, supra, cited approvingly. In each of these cases it was held that the prisoner was not entitled to his discharge .because he had failed to bring himself within the terms of the statute, as was also the case of Stewart v. State, supra. The interpretation of the statute as given by our court in Stewart v. State, supra, is well supported by the decisions in other jurisdictions that have similar statutes.
In the case of People v. Morino, 85 Cal. 515, 24 Pac. 892, it is said: ‘ ‘ The statute is imperative. ‘ The court, unless good cause to the contrary is shown, must order the prosecution to be dismissed.’ Here no cause for delay was shown. It was enough for the defendant to show that the time fixed by the statute, after information filed, had expired, and that the case had not been postponed on his application. If there was any good cause for holding him for a longer time without a trial, it was for the prosecution to show it. The court could not presume it. Under the facts as shown the case should have been dismissed, and it was error to deny the motion.”
In re Begerow, 133 Cal. 439, 65 Pac. 828, after referring to and approving the doctrine of the Morino case, the court, among other things, said: “And justly it is deemed a matter of the most importance. The government cannot take property from the meanest inhabitant without just compensation paid or tendered in advance; but it takes his liberty, which, it has been justly' said, is to some extent to take his life, upon a mere charge . of crime. This is necessary that society may be pro- , . tected. But necessity is the only excuse, and to imprison i%beyond what is absolutely necessary is tyrannous and op-Jpressive. And this is precisely what the State has .covenanted with each inhabitant that it will not do.” . The prisoner was discharged.
In State v. Kuhn, 154 Ind. 450, 57 N. E. 106, it is said: “When the prisoner brings his case within the limits of the. statute, his right to discharge becomes absolute. The courts seem united upon this point.” And again: The statute “making effective constitutional guaranty o'f a speedy trial confers an absolute right on a person charged with crime and imprisoned to be set at liberty unless tried within the time limit.” In this case it was held that the judgment discharging the prisoner, under a statute similar to ours, will not be reversed on the ground that the time of the court was occupied in the trial of other causes, where it was shown that at least eight days of the third term after defendant was admitted •to bail were occupied in the trial of civil causes. The prisoner was discharged.
In State v. Keefe, 98 Pac. 122, a statute was under ■review which reads as though it might have been copied from our statute, or the Missouri statute, from which our statute was probably borrowed. The court concluded ■a most learned and exhaustive opinion as follows: ‘ ‘ The court decides that the fact of defendant’s imprisonment in the penitentiary, under the circumstances set forth in •the agreed statement of facts, does not constitute a sufficient defense to the application of the defendant for his discharge; that §§ 5382 and 5384 apply to the defendant, and, upon the facts, the defendant has not had a .speedy trial as provided in the Constitution.” See also Hollandsworth v. Godby, 117 S. E. 369.
In State v. Wurdemam, 246 S. W. 189, the Supreme Court of Missouri handed down the opinion December 6; 1922. It' was pleaded that there was time to try the case, and the demurrer admitted that fact, and also admitted that the defendant had made no application for ' delay. The court, among other things, said: “The statute is mandatory, and imposes upon the State the. duty to bring the defendant to trial before the end of the third term of the court after the term at- which-the indictment was found. * * * These are criminal statutes, and should be strictly construed in the interest of the liberty of the citizen. The statute- says the defendant ‘shall be entitled to be discharged’ save in the two excepted situations, supra. Usually the use of the word ‘shall’ indicates a mandate, and unless there are other things in a statute it indicates a mandatory statute. Especially is this true in a statute calling for strict construction. # * A defendant is entitled to the pound of flesh granted to him by the mandatory language of the statute. ’ ’
3. Such is the law. What are the facts? For the sake of clarity we will briefly restate them here as found by the court. There was sufficient time at the April > term, 1922, to try the causes. There was sufficient time ¡ at the regular October, 1922, term, but not sufficient ; time at the adjourned day of the October, 1922, term, ' because the Phillips Circuit Court was in session on that day. Neither of the defendants, nor any one acting for them, have consented to a continuance of the causes at either the April or the October terms, 1922, nor to the continuance from the regular October term, 1922, to the •adjourned day on December 11, 1922. The court might have found the further facts to be that, even at the time of the application of the appellants for their discharge, the State did not show that there were other witnesses who would give material evidence in its behalf to prove the guilt of the defendants, and that reasonable exertions had been made to secure such evidence and failed, and that there was just ground to believe that such evidence could be had at the next term if the cause were continued to such term. True, in the response to the application for a discharge the State set up that it had not had time to ascertain the whereabouts of other witnesses who knew and would testify to substantially the same state of fasts upon which the defendants had been formerly convicted. These allegations of the response were the merest drag-net. They did not name a single witness, nor set up any facts to which any witness would testify if the cause were continued. They did not designate any- place where a single witness could be found. Taken as a whole, the allegations of the response were but tantamount to saying to the court, ‘‘ There are some witnesses somewhere scattered throughout the State, who, if found, will furnish material evidence for the prosecution, and, if the cause is continued, the State will endeavor to produce them.” These allegations were too vague and indefinite to furnish grounds for the refusal of the application, under the provisions of § 3135, supra. They were •equivalent to no more than a pronouncement and promise upon the part of the State that, if the cause were continued, it would enter upon a search for evidence. But the State had no right at that term to continué' for want of evidence; that right had been lost by failure to ask such continuance at the previous October term, 1922.
The facts found by the court show conclusively that the delay in the prosecution was not on account of the failure of the judge to hold any term of the court, because at the time the regular October, 1922, term was adjourned until December 11, 1922, there was sufficient time of the regular term to try the causes.. Likewise, there had been sufficient time at the previous April, 1922, term to try the causes. So the delay in prosecution could not have been based upon the exceptions contained in § 3134, supra.
The court expressly found the facts to be that neither the defendants, nor any one acting for them, consented to the continuance either at the April or October, 1922, terms. The delay to bring the appellants to trial could not have been caused by the application of the prisoners for continuance. The motions asking the court to set the causes down for trial at both the April and-October, 1922, terms, the testimony, and the findings of the court based thereon, show that the appellants were ready for and demanding trial. It must be held that such was the effect of the findings of the court, and that neither the appellants nor any one acting for them have consented to a continuance. The undisputed facts are that the court, on the day the appellants’ causes were set for trial, was engaged in the trial of another murder ease, which trial was not concluded until the next day, Saturday, and before that trial was ended the judge discharged the regular panel of the petit jury for the term. This conduct of the judge was equivalent to an announcement to the attorneys and all parties in attendance upon the uourt that the court would not hear' any jury trials after the trial then in progress was concluded. If such was not the purpose of the court, and the presiding judge would have tried the appellants’ cases, a sense of justice and fairness should have prompted him to notify appellants’ counsel of that fact. The act of the court shall prejudice no one. Therefore appellants cannot be charged, after this act of the court, with a lack of diligence in demanding a trial, or failure to protest against the court’s action. At any rate, the finding of the trial court on the motion to discharge, to the effect that the appellants were not consenting to a continuance of their cases, is sufficient to show that they had exercised due diligence and were demanding a trial at the regular October term, 1922. This finding of the trial court was based upon the undisputed evidence, because when these prisoners filed their motions asking for a trial they ipso facto put themselves on record as resisting a postponement of the cases. Therefore denial of the application could not have been bottomed on the exceptions contained in § 3132, supra.
Nor was there a continuance from the October term on account of failure of the State’s evidence so as to entitle the State to a continuance to another term to procure evidence. It is undisputed that the cause was postponed at that time, not on motion of the State to procure evidence, but merely because the trial judge saw fit to postpone until the adjourned day of the court, which failed because of the holding of the Phillips Circuit Court on that day. Therefore the denial of the application could not have been predicated upon the provisions of § 3135, supra. The truth is there was a failure of prosecution, pure and simple, because the State did not demand a trial and bring forward its evidence in support of the charge made in the indictments.
The conclusion of law of the trial court was not based upon its findings of fact, but was directly contrary to such findings. We are bound by the court’s findings of fact, but not by its conclusion of law. The court erred in its conclusion of law. The law applicable to the facts must be declared, else the appellants will be deprived of the right to a speedy trial, which the framers of our Constitution and the framers of this statute purposed that every person charged with a public offense should have. That every such person has such right, under constitutions and statutes similar to ours, is, so far, proclaimed by the authorities with one voice.
The order of the trial court overruling appellants’ application for discharge is therefore reversed, and an order will be entered here directing the sheriff of Lee County to discharge the appellants -from custody. | [
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Smith, J.
This is the second appeal’in this cause, the opinion on the former appeal being, reported' in 150 Ark. 60 (Knights and Ladies of Security v. Lewellen).
The suit is on a benefit certificate issued to the plaintiff on the life of. her husband, and the former judgment in her favor was reversed because of an erroneous instruction given over the objection of the defendant. We did not set out the testimony in detail, as we found it unnecessary to do so. Upon the remand of the cause there was a verdict and judgment for the plaintiff in the action, from which is this appeal.
We stated in the former opinion that the controlling question of fact is whether the insured had paid dues for two months, or only one; and this question is controlling on this appeal, as the defendant company (hereinafter referred to as the order) admits liability if there were two payments of dues.
The insured’s application for the benefit certificate was taken on May 27, 1919, at which time he was given the following receipt:
“Knights and Ladies oe Security.
“May 27, 1919.
“Received of T. J. Lewellen $2.20 as application fee.
(Signed) “C. A. Smith, Deputy.”
This payment was sufficient to cover, and did in fact cover, dues for one month.
The insured was initiated and the policy was delivered to him on June 30-, at which time it became effective as a policy of insurance, and he died on the 13-th day of August thereafter. The order admits the receipt of the payment made on May 27th, but denies that any other dues were ever paid.
The plaintiff, who is the widow of the insured and the beneficiary in the certificate, gave testimony to the- effect that her husband, who was killed in a railroad wreck, had among his papers at the time of his death a second receipt for the payment of dues. The witness did not remember what month’s dues the receipt covered, but she testified that she read it and knew the receipt covered dues to the order which her husband had paid.
Objection was made to the admission of secondary evidence in regard to this receipt and its contents, but plaintiff testified that it was not in her possession, but had been given by her to an attorney who offered to collect the certificate for her. This attorney denied that he had the receipt or that he had ever seen it, and this conflict made a question for the jury.
It might be said that the testimony of the plaintiff is of itself too indefinite and uncertain to support a finding that there was a second payment of dues. In other words, that she did not sufficiently prove the contents of this lost receipt to warrant the submission of the question whether there was a payment of dues which it covered. But we think the testimony does raise this issue when the testimony of plaintiff is considered in connection with that of her attorney. Her attorney testified that the plaintiff turned over to him certain papers belonging to her husband, one of these being a notice or postal card dated August 6, 1919,. which had been sent out by the collecting officer of the order designated as the financier, and that, after looking over these papers, the attorney went to the office of the financier to inquire if a payment had been made pursuant to this notice.
Objection to the introduction of this testimony was made upon two grounds; first, that the card itself, was the best evidence, and second, for the reason that it made no difference whether the card .was sent or not, as it did not constitute a waiver of the forfeiture resulting from the nonpayment of dues, as, under the rules of the order, one failing to pay dues was automatically suspended. The court overruled the objection made, and in doing so said: “It might show whether he was suspended or not; that might be a circumstance, and I will let it go to the jury for that purpose; of course, on the question of the card being the best evidence, yon -will have to show some reason why it is not produced.” This witness then proceeded to testify what he did after reading this notice, and his testimony will be set out.
The objection to the admission of testimony in regard to finding the card may be disposed of by saying that the card appears to have no substantial bearing on the case. It appears to have been a notice of delinquency, and it is not contended that any dues were paid after its receipt, and no contention was made that it operated to waive the forfeiture because of the nonpayment of dues if the insured was in fact delinquent in the payment of dues.
The delivery of this card to the attorney furnished the occasion for his visit to the financier of the order, and the attorney testified that he presented this notice and asked to be allowed to examine the records of the order in which the account was kept of dues which had been paid. This privilege was accorded the attorney, and he testified that the record at that time showed a payment of dues under date of May 30, and also under date of June 30. This is vigorously denied by the financier of the order, and the record was submitted to the jury and examined by the jurors with the aid of a microscope. This original record has been submitted to us, under stipulation of counsel, and, while we do not feel called upon to review the jury’s finding on this question of fact, we do announce our conclusion that the appearance of the record is not such as to afford no corroboration of the testimony of plaintiff’s attorney. The record does present a soiled appearance, but whether this is from an erasure having been made or from the frequent examination to which it has been subjected we do not decide.
The testimony of the attorney, if true, tends to prove that dues were twice paid, and corroborates the testimony of the plaintiff that the lost paper was a receipt for dues, and the testimony of the two witnesses, taken together, is legally sufficient to support the finding that the in sured. made a second payment, and, if so, it is admitted that the certificate was in force at the time of the insured’s death.
The court gave, over the defendant’s objection, an .instruction numbered 3, reading as follows :■ “The court will instruct you, however, that the issuance of this benefit certificate was evidence that Thomas J. Lewellen was a member in good standing of the defendant society at the time that the certificate was issued, and that condition would be presumed to continue, unless the defendant has shown, by a preponderance of’the evidence, that he forfeited his membership by the nonpayment of dues.”
It will be observed that the instruction does not deal with the question of the reinstatement of a suspended member, but only with the presumption of continued good ■standing. The certificate here sued on was issued by a fraternal insurance order not substantially different'from the one sued on in the case of Grand Lodge K. of P. v. Whitehead, 87 Ark. 115. We there said: “A certificate issued to a member of a benefit society is evidence that the member is in good standing, and such good standing is presumed to continue until there is proof that it no longer exists; and the burden of establishing that the member is not in good standing must be assumed by the association. Royal Circle v. Achterrath, 204 Ill. 549, S. C. 98 Am. St. Rep. 224; Ind. Order Foresters v. Zak, 29 Am. St. Rep. 318; Siebert v. Sup. Council, 23 Mo. App. 268; 25 Cyc. 925, subd. (g).”
Upon the authority of this case, in view of the issue ■ joined, we hold the instruction was not erroneous or prejudicial.
The financier of the order testified that he suspended the insured for the nonpayment of dues, and noted the suspension on the record which he was required to keep, and it is insisted that there was no competent testimony that the insured was not properly suspended, and that the verdict should therefore, have been directed in favor of the order. This insistence leaves out of account the tes timony tending to show that the dues were paid, and, if the dues were paid, there was no authority for the financier to suspend the insured, and the fraternal order was liable.
A case was made for the jury, and the testimony is legally sufficient-to support the verdict; and, as no error appears, the judgment is affirmed. | [
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Smith, J-.
Appellees, plaintiffs below, compose a partnership doing business as Boatright & Cheesman, and for their cause of action alleged that in July, 1921, they were engaged in Union County in drilling for oil under a contract with an oil company on a lease known as the Pratt lease. That at the same time appellant, a corporation, the defendant below, was preparing ’to operate on an adjoining lease known as the Fitzgerald lease. That in drilling operations great care must be exercised to prevent disasters from fire, the character of the work making necessary the presence of inflammable material, a fact known to defendant and to all' other persons in the drilling business; yet, notwithstanding this knowledge which the defendant possessed, it did,- on ,1 uly 23,1921, permit its employees to build and maintain a large fire on the Fitzgerald lease, presumably for tire purpose of destroying underbrush, and it negligently permitted the fire to spread to the Pratt lease, and there ignited and partially destroyed plaintiffs’ drilling rig, equipment and accessories, and so badly damaged the remainder as to render their practical use impossible. There was a prayer for the damages done the drilling outfit and for the loss of its use pending its repair.
Plaintiffs offered testimony which supported the allegation of negligence in allowing the fire to spread, and this notwithstanding the fact that notice was given by plaintiffs to the employees of defendant, having ' charge of the fire, of its danger. Plaintiffs also offered testimony as to the extent of the damages, the testimony being sufficient to sustain the verdict returned.
Defendant answered and denied negligence or responsibility for the fire, and denied the damages.
A verdict for $14,000 was returned in favor of the plaintiffs, and from the judgment pronounced thereon is this appeal.
The first assignment of error argued is that the trial court erred in refusing to grant a new trial on account of newly discovered evidence. This newly discovered evidence was to the effect that the employees of another oil company had set fire to the brush on a tract of land known as the Caddo Central lease, and that the fire which damaged plaintiffs originated there.
The record shows that the suit was commenced February 4, and that at the February term in March defendant was given sixty days in which to file answer, and this resulted in giving the defendant six months to prepare for trial, which occurred at the following term of court. Moreover, testimony was offered at the trial tending to show that the fire had originated in this manner/ so that the newly-discovered testimony was merely cumulative, and we cannot therefore say the trial court abused its discretion in refusing to grant'a new trial on this account. St. Louis S. W. Ry. Co. v. Goodwin, 73 Ark. 528; Arkansas Mut. Fire Ins. Co. v. Stuckey, 85 Ark. 33; McDonald v. Daniel, 103 Ark. 589; Hinkle v. Lassiter, 142 Ark. 223; New Coronado Coal Co. v. Jasper, 144 Ark. 58.
As tending to show that the fire which damaged plaintiffs did not originate on the Fitzgerald lease, defendant offered in evidence a photograph which had been taken by a Mr. Taylor. The witness who offered the photograph in evidence was a Mr. Doyle, who did not take it, but who did testify that it represented the appearance of the Fitzgerald lease on the morning after the fire when the picture was taken. Objection was made to the introduction of the photograph upon the ground that it had not been properly identified. In ruling upon the objection made, the court said there was no testimony to show that the picture was taken from the negative prepared by the photographer, and that the photograph was hearsay evidence, but that, as the witness had testified that the photograph resembled the place of the fire, he would allow the picture to be offered in evidence and be considered by the jury for what it was worth. Objection was made to this comment, whereupon the court said: “I want to make myself clear on that, gentlemen. The witness testified that this picture resembles the condition down there at the time ho saw it on the evening of the 23rd, and the picture may go, and it goes as the testimony of this witness — simply as a picture which he says resembles the condition there at the time, but there is no legal testimony here that the jury could consider as to who made that picture or where it came from.” After this remark, defendant refused to offer the photograph in evidence-, and now insists that the comment of the court destroyed its value as testimony and constituted a charge on the weight of the testimony.
The court might have permitted the introduction of the photograph without comment, but we do not think the court’s comment is open to the objection made. ' The fact, stated by the court was undisputed. The witness liad not taken the picture, and did not know that it had been properly developed. He did testify that the photograph resembled the place of the fire, and the court ordered it admitted as explanatory of the witness’ testimony.
In the case of Sellers v. State, 91 Ark. 179, we quoted from 1 Wigmore on Evidence, §§ 790-792, as follows: “As a general rule, photographs are admissible in evidence when they are shown to have been accurately taken, and to be correct represéntations of the subject in controversy, and are of such a nature as to throw light upon it.” 9 Enc. of Ev., 771; Wharton’s Crim. Ev., § 544; Blair v. Pelham, 118 Mass. 420; Church v. Milwaukee, 31 Wis. 512; Underhill on Criminal Ev., 551. The general objection to the photographs as evidence was sufficient to raise the question of their relevancy. Photographs are admissible as primary evidence upon the same grounds for the same purposes as diagrams, maps and plats. Underhill’s Crim. Ev., § 50; 1 Wig. Ev. 792. They aid the jury to understand the evidence of the witnesses by illustrating the situation of the persons, places or things connected with the subject-matter of the inquiry. People v. Buddensieck, 103 N. Y. 487.” See also Zinn and Cheney v. State, 135 Ark. 342.
The ruling of the court conformed to the statement of the law quoted above. The photograph was admissible only as a map or a plat would have been admissible, to enable the jury to comprehend, to visualize, the testimony of the witness.
It is insisted that the testimony does not support the verdict. On that question, it may be said that piles of brush were fired on the Fitzgerald lease on July 22; and there was also testimony that there were no other fires on that day except the ones on this lease, and that the persons who had set the fires 'were warned of the danger, but, notwithstanding this warning, these employees left the fires burning, unattended, on the afternoon of the 22d.
Objection is made that the-verdict is excessive. Two instructions were given on the measure of damages, one on the court’s own motion, the other at the request of the defendant, and, while they cover the same ground, there appears to be no conflict between them. The testimony shows tliat plaintiffs were drilling in a -producing field, and expedition was highly desirable, and this fire not only involved a suspension of drilling operations, which the testimony .shows were highly profitable to the plaintiffs, but required them to practically rebuild their outfit by way of repairing. The jury has awarded what appears to be full compensation, but we cannot say the testimony does not support the verdict returned. Indeed, the testimony on the part of appellees would have supported an even larger verdict under the instruction on the measure of damages which was given at appellant’s request.
We find no prejudicial error, and the judgment is affirmed. | [
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Humphreys, J.
Appellants were indicted, tried, and convicted in the circuit court of Clark County for making whisky, in violation of § 6160 of Crawford & Moses ’ Digest, which is as follows:
“It shall be unlawful for any person, firm or corporation to manufacture, sell or give away, or be interested, directly or indirectly, in the manufacture, sale or giving away of any alcoholic, vinous, malt, spirituous or fermented liquors, or any compound or preparation thereof, commonly called tonics, bitters or medicated liquors, within the State of Arkansas.”
While the cases were tried together'for convenience, separate verdicts were rendered against the parties. From the respective Judgments of conviction each has duly prosecuted an appeal to this court. The respective appeals will be treated in one opinion, as the same questions are involved in the cases.
Appellants’ first insistence for reversal is that the facts are insufficient to support the verdicts. If, upon all the facts and circumstances in the case, the jury might have indulged 'a reasonable inference that appellants had manufactured whiskey in said county within three years next before the finding of the indictments, then the evidence was sufficient to support the verdicts. The facts and circumstances revealed by the record are, in substance, as follows; four barrels of mash were discovered on the farm of Len Williams by Tom Tollerson, city marshal of Amity, and IT. W. Chambers, deputy sheriff of said county. The mash was inspected every few days by the officers until January 22, 1923, at which time the fer mentation liad progressed until it was ready for distilling, or ripe, as some of the witness said in describing its condition. On that day a part of the mash was removed from the barrels to a still located about seventy-five yards from Williams’ house, on Williams’ land. Early the next morning, before day, the officers concealed themselves from view at a point near the still, to watch for and catch the parties who came to the still for the purpose of operating it. Len Williams came before day, with a flashlight, and built a fire under the still. Just about daylight Oscar Wheeler came on horseback, carrying a coil and two jugs tied together with a rope, and, after holloing in a low tone to Williams, he approached the still from the opposite side of the fence, and placed the coil and jugs against the fence about three feet from the still. Wheeler went to the barn, put up his horse, and returned. It was quite cold, sleet being on the ground, so the officers came from cover and arrested appellants. In response to queries, they stated, in' substance, that, if the run had been successful, they would have been able to make about twenty gallons of whiskey ; that they owned the still and were the only parties interested therein; that they were making the whiskey to sell •to get out of debt; that the still was a good one but old, having been in use for thirty years; that they had not been making whiskey long. Oscar Wheeler stated to the officers, in the presence of Len Williams, that they were caught at the still, were guiltjr, and the best they could do was to submit. W. A. Denton testified that, in conversation with Len Williams, Len told him he was making whiskey for the dollars and cents, not to drink. Bob Allen testified that, after the arrest, he asked Oscar Wheeler what in the world he meant, to which Oscar replied, “Well, if I had had my way, I wouldn’t a pulled this stunt off. I saw some tracks two weeks ago that led me to believe I had better let it alone, but I was thinking it was a kind of a bad morning, thought maybe I could get by with it.” The justice of the peace testified that, when appellants were brought before him, they admitted their guilt, and wanted to throw themselves upon the mercy of the court.
Appellants make the argument that, because no whiskey was found, and because the particular run in process of making had not been distilled, there was no substantial evidence to show that they had manufactured intoxicating liquors within three years next before the finding of the indictment. It is not necessary to find whiskey or intoxicating liquors in the possession of moonshiners in order to convict them of manufacturing intoxicants. It is sufficient, if a reasonable inference may be drawn from all the facts and circumstances, that they have manufactured same within a period covered by the indictment. In the instant case, when appellants were arrested, they were admittedly engaged in making’ whiskey, but had not yet converted the particular mash in hand into a finished product. Mash which was ripe and ready to run had been placed in a still owned by appellants, where, by a heating process, it was being prepared to pass through a coil, which was on the ground ready to be attached. The still was a good one, and had been ' in use for thirty years. Appellants were asked how long they had been making whiskey and said, “Not long,” and that they were making it to sell. There is nothing in the record that this was appellants’ first attempt to make whiskey or that they were novices in the business. On the contrary, a reasonable inference might have been well drawn from the surroundings, facts, and circumstances, that appellants were and had been for' some time regularly engaged in the manufacture of intoxicating liquors. The preparations which had been .-made, the inclement morning selected to make the run, the early hour, the ownership of the still by the parties, and its age, all indicate that appellants were regularly engaged in the business. The facts are ample to support the verdict.
Appellants’ next insistence for reversal is tliat tlie court erred in refusing to give their request No. 3, which is as follows:
“You are instructed that, where the prosecution relies upon circumstantial evidence alone for a conviction, the jury must be satisfied beyond a reasonable doubt that the crime has been committed by some one in manner and form as charged in the indictment, and they must not only be satisfied that all the circumstances proved are consistent with defendant’s having committed the act, but they must also be satisfied that the facts are such as to be inconsistent with any other reasonable conclusion than that the defendant is the guilty person; and if the material facts necessary to constitute a chain of circumstances sufficient to authorize the jury in convicting the defendant under the other instructions herein are wánting in a single link in such chain, it is sufficient to raise a reasonable doubt, and the jury should acquit the defendant.”
It is unnecessary to determine whéther the instruction is a correct declaration of the law. It erroneously assumes that the State relied wholly upon circumstantial evidence, which is not borne out by the record. It was properly excluded for that reason. Griffin v. State, 141 Ark. 43; Jordan v. State, 141 Ark. 504.
Appellants’ last insistence for reversal is that the instruction given by the court upon reasonable doubt was erroneous. The instruction is as follows:
“ A reasonable doubt, gentlemen, is not an imaginary doubt, or far-fetched doubt, but it is a reasonable doubt growing out of the testimony in the case.”
The objection made to it is that it does not include the idea that a reasonable doubt arising from the lack of evidence should be resolved in favor of the defendant. The doubt growing out of the testimony in a case necessarily relates to a lack of testimony as well as to testimony given in the case.
•No error appearing, the judgment is affirmed. | [
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Wood, J.
Act No. 4 of the .Special Aets of 1921 provides for a local option stock law for Miller County. Special Acts, 1921, page 1. The first section of the act provides that, upon the petition of twenty-five per cent, of the qualified electors of any political township in Miller County, the county court or judge thereof shall order an election for such township at the general election, if there be one, within six months from the filing of the petition, and, if not, at a special election, to determine whether the stock law shall take effect in the township, as provided in subsequent sections of the act.
The second section provides that notice shall be published in four successive weekly editions of a newspaper having a bona fide circulation in the township, the first publication to be at least thirty days prior to the election, and not less than twenty written or printed notices of such election to be posted in as many public places in such township at least twenty days prior to the date of the election, and this section concludes as follows: ‘ ‘ Said election shall be held under the general election laws of the State as far as they are applicable.”
This action was instituted by the appellants in the Miller Chancery Court against the appellees. In their complaint the appellants alleged that they were property owners and electors in Sulphur Township, Miller County, Arkansas, and owned stock on the range in that township; that on November 10,1921, an election to determine whether a majoritj^ of the electors was in favor of restraining stock from running at large was held in such township, under the orders of the county court previously made; that the election commissioners certified to the county court that a majority of four had voted in favor of restraining the owners of live stock from allowing same to run at large; that on December 31, 1921, the judge of said county court issued such restraining order; that said election, the election certificate and said restraining order were all void because the notice of said election was not published in four successive weekly editions of a newspaper, and the first publication thereof was less than thirty days prior to said election; that •the appellees and others were wrongfully and unlawfully impounding appellants’ stock and selling the same. The appellants then set. out the substance of the various provisions of the act of which they complain, from section seven to section ten, inclusive, and say: “The provisions of the act are unconstitutional because the owner of said animals, when impounded, is not given a day in court, nor is a hearing provided for him, and said act provides for taking property without due process of law,” contrary to the State and Federal constitutions. The appellants prayed that the act and the election under it be declared null and void, and that the appel-lees be perpetually enjoined from attempting to enforce it.
The appellee demurred on the ground that the court was without jurisdiction, and also that the complaint did not state facts 'sufficient to constitute a cause of action, and answered denying all the material allegations of the. complaint. They pleaded the statute of limitations governing election contests in bar of the action, and set up laches as follows: That appellants “have waited from the tenth of November, 1921, the day of said election, when they and all others in the township knew that a majority had voted in favor of restraining stock from running at large in said township, under the terms of said act, for a period of more than a year and a half, and thereby and on account thereof a great majority of fbe people in Sulphur Townr ship have permitted their fences with which they had their tillable lands inclosed to go down, decay and ruin, and that they have built pastures in which to. inclose and keep, their live stock, all of which has been done on .account of the laches of these plaintiffs and of others residing in that township who are cooperating and aiding or assisting these plaintiffs in their efforts to declare null and void the stock law election held in said township at the time aforesaid, and that to permit the plaintiffs and all others who are opposed to the stock law in Sulphur Township at this date to come in and upset tne conditions that have been brought about 'and that now exist therein, by reason of their laches in bringing this suit, would be ruinous, unjust and inequitable to a great majority of the people living therein.”
The cause was submitted on the pleadings and upon oral testimony taken in open court by agreement of the parties, which has been properly brought into the record. The trial court entered a decree in favor of the appellees, dismissing the complaint for want of equity, from which is this appeal. •
The appellants contend that the decree of the trial court is erroneous for two reasons: first, because the act is unconstitutional; and second, that the provisions of. the act requiring notice of the election were not complied with.
1. Section 7 of the act provides that any person over the age of twenty-one years may impound stock or animals running at large, in a township where the law has become' operative, until his fees and damages, caused by such animals, are paid.
• ‘ .Section 8 provides for notice in writing to the owner, if known, .and that the owner shall be entitled to possession of the impounded stock “upon payment or tender of the fees,' costs, and damagés.”
Section 9 provides in part that “the damages caused by such stock dr animals may be ascertained by any three disinterested householders of such territory chosen by the parties interested, or by some justice of the peace therein, who shall take an oath to assess such damages fairly and honestly, and their assessment shall be final.”
Section 10 provides 'that if 'the owner, after receiving notice, shall neglect to pay the fees and damages, the person impounding the stock may sell the same at public auction to the highest bidder for cash, after having given, five days’ notice of the time, place and teams of :sale, etc., and apply the proceeds of the sale, after deducting the cost thereof, to the satisfaction of his fees and damages.
Section 11 provides that nothing in the act shall deprive the impounder from enforcing his claim for fees and damages in a court of competent jurisdiction, and gives him a lien on the impounded stock for the payment of his claim for fees and damages.
Section 12 provides as follows: “Should any part of this act he held to be unconstitutional, it shall nevertheless be held valid as to such parts as are constitutional. ’ ’
Now, it will be observed that the act does not lay any penalty upon the owner of stock for permitting same to run at large in violation of the act, and make' such nenaltv nay able to the imoounder. It is made a misdemeanor for any owner or keener of stock to knowingly nermit same to run at large in any township where the act is ooerative. but the "penalty therefor is not made pavable to the impounder of the stock. While the'im-pounder of stock under the act is allowed any damages sustained by him caused by such animals, nevertheless we are convinced, after a careful consideration of the act as a whole, that 'all of the provisions of the' act relating to damages may be eliminated, and a perfect workable act will remain. If seems clear to us that the Legislature would have enacted this statute, ■ after all the provisions as to damages had been eliminated; if if had known that these provisions rendered the act unconstitutional. If the act be unconstitutional, it is only so because of these provisions as to damages, and section 12, as we construe it, is a declaration of the purpose of the Legislature not to permit the act to become invalid because of sudh provisions.
This court has held, in numerous decisions, “.that, where a statute is unconstitutional in part, the valid portion will be sustained, if complete in itself, and capable of being- executed in accordance with the apparent legislative intent.” One of the latest of our cases is that of Oliver v. Southern Trust Co., 138 Ark. 381-7. Other decisions of this court are cited there. It becomes therefore unnecessary to decide, and we do not decide, whether or not the act would be unconstitutional if the provisions as to damages were retained therein, because the appellants here do not raise an issue as to the (amount, if any, or the manner of ascertainment, of damages. No testimony is abstracted by the appellants showing that any damages were incurred, or laid and proved, specifically, as such.
2. The appellants contend that the election was void because the notice was not given as required by law. In Patterson v. Adcock, 157 Ark. 186, the validity of the election held under this act was challenged. In that case we said: “It follows from these decisions that, where nothing is involved except the contest of the result of an election, the circuit court has jurisdiction. This, however, does not exclude the jurisdiction of the chancery court under all circumstances. On the contrary, we are of the opinion that, where property or contractual rights are involved in the result of an election putting into force a statute like the one involved in this inciuirv, the .ebaneerv court has jurisdiction to hear and determine the contest and to afford relief where the statute has not been properly put into force. * * * We do not think that the validity of the statute authorizing the formation of the district is affected by the fact that the statute makes no provision for a contest of the election. If a remedy exists in any óf the courts under the Constitution and general laws of the State, the special statute is not invalid by reason of its failure .to provide .a remedy.” That opinion was rendered in February, 1923, and this action was instituted thereafter on April 4,1923.
It is provided in § 2 of the act that-“said election shall he held under the general election laws of the State, so far as they are applicable.” In the general provisions of our election laws relating to contests, chapter 54, Crawford & Moses’ Digest, is § 3847, as follows: “All actions to contest the election of Supreme Judges shall be commenced within one year after the election or commissioning of >said judges, and actions for contesting the elections of ¡all other officers herein mentioned within six months after they are elected or commissioned. ’ ’
The provisions of the act under review bringing the election under the control of the general election laws of the State, so far as they are applicable, subjects •the election, which the appellants challenge in their complaint, to the above limitation under the general election laws. In Patterson v. Adcock, supra, we held that, although no specific provision was made for the election contest before the county court, nevertheless the chancery court has jurisdiction, where property or contractual rights are involved in the result of an election putting into force a ¡statute like this, to hear and determine the contest. As the act does not make any specific provision for instituting a contest, nor when same may be instituted, nor how it may be conducted and determined, it was undoubtedly the intention of the Legislature in these respects to. make the provisions of the general election laws •apply where applicable. As wé have seen by the section above quoted, the general election laws provide for á limitation upon the time when election contests shall be commenced, and that limitation is six months for all other officers except the Judges of the Supreme Court. Surely the Legislature did not intend that as. important a matter as the time for contesting an election held under this act should be left unlimited — “in the air,” so to speak. The serious results that would follow such construction are outlined in the appellees’ plea of laches. It occurs to us that actions such as this instituted in the chancery court to contest the result of 'an election under the act are analogous to any contest that might be brought under the general election laws to contest an election of officers, and that the same limitation should apply.. Under this interpretation there are definite and fixed rules governing such contests. Otherwise, there are no rules applicable thereto.
In State v. McKinley, 120 Ark. 166, the court had under consideration an act ’providing for the holding of elections in municipal corporation©, the concluding sentence of which reads as follows: “All elections shall be held and conducted in' the manner prescribed by law for holding State and county elections, as far as the same may be applicable.” Answering the objection that the provisions of the general election laws did not apply to that act and that the same was in violation of article 5, § 23 of our Constitution, which provides “that no law shall be revived, amended, or the provisions thereof extended or conferred by reference to its title only,” etc., we said: “Where the new act is not complete, but refers tó a prior statute which is changed so that the legislative intent on the subject can only be ascertained by reading both statutes, uncertainty and confusion will exist, .and this constituted the vice sought to be prohibited by this clause of the Constitution. In the case before us the act is very broad and comprehensive. It is' complete in itself, and in no manner attempts to amend or change the existing election laws. On the contrary,’ the general election laws are undisturbed and are in no wise affected by § 5433’ pertaining to municipal elections. It is no objection to the statute that, in order to ascertain how elections in cities and towns shall be held, it becomes necessary to refer to existing laws relative to holding general elections for State and county officers” (Citing oases). So here. Therefore .that part of § 2 of the act under consideration which provides that “said election shall be held under the general election laws of the State, so fiar as they are applicable,” is not contrary to article 5, § 23 of the Constitution, and is applicable to elections under this law.
We conclude that the appellants’ action to contest the result of the election is barred by the six months’ limitation contained in the general election laws. The decree is in all things correct, and it is therefore 'affirmed. | [
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Wood, J.
On the 10th day of April, 1920, one J. A. Burt (hereafter called .appellant) entered into a contract with Road Improvement District No. 11 '(hereafter called district) to construct a road for the district. He was to complete the work within two hundred working days. The appellant deposited a certified check in the sum of $5,000 to guarantee the execution of the contract. The commissioners of the district refused to award the appellant the contract unless the bonds of the district could be sold for par. Appellant procured One H. C. Argo, president of the First National Bank of Cotton Plant, Arkansas, to make a contract with the district to buy the bonds at par. Appellant gave Argo his notes in the sum of $6,200 as a consideration therefor. Argo transferred the notes to the district as part payment of the purchase price of the bonds. Appellant began work on April 26 by putting a crew to moving fences and telephone poles and by employing one W. T. Burks as a subcontractor to grade part of the road. .
Appellant failed to make bond. The appellant was paid for the work done in May and June, amounting to the sum of $7,177.40. Appellant paid W. T. Burks for the work done by him in May, but failed to pay him for his work in June. The district .refused to pay appellant for the work done in July, due August 10, because of his alleged failure to give bond and to pay his subcontractor, but told him it would pay him if he would give the bond, pay his men, and proceed to expedite the work. On August 23 the district employed other contractors to assist appellant, by grading the road through the bottom lands. Burks performed his subcontract and completed the same about August 30. There was due him for his work the sum of $10,445.73. On September 27th the district cashed the $5,000 certified check of the appellant and paid same to Burks, leaving a balance due of $5,445.73. On October 27th the appellant made an assignment of all his property in this State for the benefit of his creditors.
This action was begun by Burks against the appellant and the district and its commissioners. He set up the contract between the appellant and the district, and alleged that he had a subcontract under appellant; that he performed work according to his contract, and that there was due him the balance of $5,445.73. He made the trustees of appellant in the assignment parties, and also the People’s Bank of DeVall’s Bluff, the depository of the district, and'sought to impound the funds in its hands for the payment of his claim.
The appellant and the trustees in the assignment answered and alleged that Burks had been paid all sums of money due him directly by the district. They, made their answer a cross-complaint against the district, setting up the contract of the district with the appellant, and alleged that he did all the work of clearing the right-' of-way, which amounted to the sum of $5,000; that'the district had never paid; that he had sublet the excavation work to Burks; that the district had breached the contract in letting out work to others; and' that, but for such breach, appellant would have been able to complete the work at a large profit. They alleged that appellant had deposited a certified check with the district for $5,000, which the district had cashed, and they prayed that an accounting be had, and that they be given a decree for the .amount due the appellant.
The district answered the cross-complaint, denying that it had violated the contract with appellant, and denying that it was indebted to him in any amount, and alleged that the appellant had failed to give bond, and had abandoned the contract; that he was indebted to the district in the sum of $6,200 on notes given by him to Argo, which had been transferred to the district, for which it asked judgment, or that these notes be set-off against any amount that might be found due the appellant. It .also made its answer a cross-complaint against Burks, and alleged that the appellant had refused to give bond, and had - abandoned his contract; that, under a provision of the contract with the appellant, the district might pay any subcontractor for the work performed by such subcontractor out of any money due the contractor, and that, under such' provision of - the contract, the district had paid to Burks the sum of $5,000; that at that time nothing was due from the district to the appellant, and that the payment of $5,000 to Burks was therefore contrary to the contract, and illegal. The district therefore prayed judgment against Burks in the sum of $5,000.
Burks answered the cross-complaint of the district, and set up that, after the controversy arose .between the appellant and the district, the commissioners and its engineer had Burks to continue the work of the district, and that the $5,000 for which the district asked judgment against him was paid him for construction work which he performed for the district under supervision of its engineer, after the controversy arose between the appellant and the district. Burks also, in an amendment to his ■ complaint, asked that a writ of mandamus he awarded him, directed to the commissioners, commanding them to issue to him certificates of indebtedness for the amount found to Be due him by the district, and that they be required to levy a tax to pay the same.
After the suit had been filed the district, in the summer of 1921, made a new contract with Burks to complete the improvement at a much lower cost than that fixed in the original contract between the appellant and the district, and appellant asked that in the accounting he be allowed credit for the amount saved by the district under this new contract with Burks.
The trial court, after hearing the testimony, found that appellant failed to give the bond required by the statute and by his contract with the district, and that he was not entitled to recover on his claim for profits against the district; that the district was indebted to the appellant in the sum of $10,502.75, which amount should be credited by $7,177.40, leaving a balance due him of $3,325.35; that appellant was indebted to the district in the sum of $6,200, with interest thereon, for the notes, for which the district should have a decree against the appellant, and that, after deducting the $3,325.35 due appellant from the $6,200 and interest due the district, the appellant would be due the district the sum of $3,042, for which the district should be allowed judgment against'appellant and his trustees.
The court further found that the appellant was entitled to a credit in the sum of $5,000 for the certified check which he had deposited with the district, which amount should be set-off against the sum of $5,000 paid by the district for the appellant on his indebtedness to Burks. The court also found that Burks had no cause of action against the district, and dismissed his complaint for want of equity against the district and the Bank of DeVall’s Bluff, and also dismissed the cross- complaint of the district against Burks. The court rendered a decree in favor of Burks against the appellant in the sum of $5,445.73 principal, and $612.64 interest, making the total sum of $6,058.37. The appellant, the district, and Burks appeal from the decree in so far as it is adverse to their respective interests. Such other facts as we deem necessary will be stated as we proceed.
1. We will first dispose of the issues presented by the appeal of the appellant. The first question is, was the appellant entitled to recover under the contract? Section 5446 of C. & M. Digest provides as follows: “All contractors shall be required to give bond for the faithful performance of such contract as may be awarded to them, with good and sufficient security in an amount to be fixed by the board of commissioners, and said bond shall contain an additional obligation that such contractor, or contractors, shall promptly make payment to all persons supplying him, or them, labor and materials in the prosecution of work provided for in such contract.”
Road improvement districts created under what is. known as the Alexander road law, act 338 of the Acts of 1915, ch. 81, C. & M. Digest, §§ 5399 to 5462 inclusive, are g-wasi-governmental agencies of special and limited powers. They can only exercise such powers and in such manner as is expressly authorized by the law under which they are created, or which, by necessary implication, is included in the powers expressly conferred. The language of the above provision in regard to the bond shows that it is mandatory in terms, and a compliance therewith is prerequisite to the validity of any contract between the district and contractors for the building of roads which such district undertakes. The bond is for the benefit and protection, not only of the district, but also of those who supply labor or material to be used in the construction of the improvement.
We cannot agree therefore with learned counsel for the appellant that the giving of the bond is a con dition subsequent, and that it does not affect the validity of the contract. On the contrary, the giving of this bond is a condition precedent, and essential to the validity of the contract for the building of roads under the road improvement district law. The commissioners therefore had no authority to enter into this contract with the appellant, and to allow him to enter upon the performance thereof, before he had executed the bond required by the above statute. While the statute does not specify whether the bond shall be made before or after the contract is actually signed, the language clearly contemplates * that no contract entered into between the district and contractors shall be binding on the district until the bond is made. Such is the effect, we believe, of the doctrine of our own cases construing similar pro-lusions, and the authorities generally. Wiegel v. Pulaski County, 61 Ark. 78; Altheimer v. Board, 79 Ark. 234; Carswell v. Hammock, 127 Ark. 119; Ellison v. Oliver, 147 Ark. 267; Ark. Nat. Bank v. School Dist., 152 Ark. 507; 19 R. C. L. 1063, sec. 352; 28 Cyc. 1043; 9 C. J. 730; Bowditch v. Supt. of Streets of Boston, 46 (Mass.) N. E. 1026; Baker v. So. Const Co. (Ky.), 47 S. W. 608; Donnelly on Public Contracts, § 17. It follows that the contract between the appellant and the district was ultra vires and void because no bond was executed in compliance with the statute, and appellant is entitled to recover nothing under the contract. The decree of the court was correct in so holding.
2. The court allowed appellant the sum of $10,-502.75 as quantum meruit for work lie had done, and of which the district had received the benefit, and charged him with the amount the district had paid him and with three notes in the aggregate sum of $6,200 which the district held, and rendered a judgment in favor of tb-^ district for the balance. The appellant contends that the amount allowed him for his work on a auantum meruit basis was too small, and that the court also erred in not. canceling his notes.
It could serve no useful purpose to set-out and discuss at length, the testimony bearing upon the issue as to whether or not the court should have allowed the appellant a greater sum for the work done by him. The testimony of the engineer of the district tended to show that the work done by appellant was of no real value to the district until the road was completed; that the road, which he had graded in spots, did not become of any real benefit to the district until the entire roadway was completed in 1921. In the meantime a considerable portion of the roadway which appellant had done had washed away because of appellant’s failure to properly drain the work. The engineer deducted the amount that was necessary to pay for the work that had washed away from the cost of doing the work at present prices, which left the sum of $10,502.75, the amount allowed the appellant. The appellant contends that he should have been allowed the amount that it cost him to do the work at the time it was done. But the district, on a quantum meruit, cannot be made to pay more than the value of the work at the time it received the benefit thereof, and, as the preponderance of the evidence shows, the district did not get the benefit of his work until the summer of 1921. Therefore the measure of appellant’s recovery, if he is entitled to recover at all, is the value of his work to the district at that time. 9 C. J. p. 820, § 157.
We cannot agree with learned counsel for the district that the appellant is not entitled to recover on a quantum meruit, and that the district is entitled to recover back the amount paid appellant, because, forsooth, the appellant failed to execute the bond, which thereby rendered the purported contract ultra vires and ineffectual. The district and the appellant were equally at fault and censurable, the one for permitting and the other for performing work without complying with the statute as to the execution of a bond. The commissioners of the district did not stop appellant from proceeding with the work after they knew that the bond had not been executed, but, ou tlie contrary, permitted bim to proceed with the same, and, in effect, received and accepted the benefits of his work by paying for what he had already done and allowing him to perform that for which he had not been paid before he abandoned the ' work. While the contract was ineffectual, the work which the appellant did, and the district permitted, did not involve any fraud against the district; and, while the contract was ultra vires, yet the entering into such contract is not immoral. The language of the statute does not expressly prohibit the making of such a contract and does not expressly make it unlawful to enter into such a contract. Therefore it does not come within the general rule that, where a contract is immoral or expressly prohibited, or is malum prohibitum, no court of justice will entertain an action upon it or upon any asserted rights growing out of it. See Thalman v. Lewis, 124 Ark. 6; Carter v. Bradley County Road Imp. Dists., 155 Ark. 288.
The appellant did the work, the district permitted him to perform it under the supervision of its engineer, and it received the benefit of such work, and it is but just and equitable that the district should pay for the value of the benefit it received at the time the benefit was realized. The court did not err in allowing judgment in favor of the appellant against the district in the sum of $10,502.75, less the amount that had already been paid him by the district.
The judgment rendered by the court in favor of the district against the appellant for the aggregate amount of the notes, $6,200 and interest, was likewise correct. The appellant testified that he gave Argo the notes to help him sell the bonds. He was willing to stand that much loss to hasten the sale of the bonds, so that he could go on with his work. His superintendent of the work advised him that he had a good profit in the job, and that he had best take that much loss in order for the district tb get money on the bonds. His idea in giving the notes was that .the’ bonds could be sold, the district get the money, and he would be paid for his work. Appellant’s superintendent testified that the contract could not be let because the bonds could not be sold at par. He told Arg’o, appellant’s banker, about it, and he got in touch with Thweatt, one of the attorneys of the district. The notes were given to make the bonds bring par. , Then they revised the bid to take up the $6,200. Appellant was still under all bidders.
Argo testified concerning this that he made a contract with the district to buy the bonds. * * * The notes for $6,200 were given him to take care of the difference between the bonds at 96c and at par. The district was not willing to sell below par. When the bonds were finally sold, he turned appellant’s notes over to the district as cash and as part of the purchase price of the bonds. The whole issue of bonds was $155,000. He sold $75,000. He paid $7,500 by paying $1,300 by check and giving the district appellant’s notes for $6,200. The district got $67,000 from the bond purchasers, $1,300 from witness by check, and $6,200 of appellant’s notes, and witness’ original deposit of $2,500, making $77,500 for $75,000 in bonds. Witness lost $3,800 on the transaction, and the arrangement was that the appellant should lose '$6,200.
The testimony of Thweatt, one of the'attorneys of the district, who was mainly instrumental in negotiating the contract for the district, was to the effect that the appellant was the successful bidder for the work of constructing the road for the district. The commissioners first determined not to award a contract unless they could dispose of the bonds at par. Appellant’s bid was $6,200 less than the piice of the next lowest bidder. Appellant agreed that he would find a buyer for the bonds at par if the district would permit him to add $6,200 to the price for his work. This proposition the district ac1 cepted, and the contract figure included the $6,200 added to the bid' prices. Appellant then arranged for Argo to lray the bonds at par, and gave him the $6,200 in notes as a consideration therefor. Argo had no knowledge of the arrangement between the district and the appellant that his bid might be increased the amount of the notes to Argo. Appellant wanted Argo to make the contract to buy the bonds, and agreed to give him $6,200 consideration therefor, which he did by executing his notes. Argo signed the contract to buy the bonds, and appellant carried out his contract with Argo, which was the consideration for the notes. The notes were afterwards transferred to the district. The district received them from Argo at the time of the transaction in lieu of that much cash.
It thus appears that the notes were unconditional. They were given for a consideration that had already been performed by Argo in the execution of the contract to buy bonds of the district. When the district accepted Argo as a satisfactory buyer for the bonds, the consideration for the. notes was performed. The fact that the commissioners of the district entered into a contract whereby they allowed appellant to increase his bid in the amount of the notes did not destroy the consideration upon which the notes were executed to Argo and the consideration from the district to Argo in the contract of the sale of the bonds to him. The district obtained the notes from Argo for a valid consideration, and owns the same, and the appellant is liable therefor. The statute under which this district was created does not prohibit the commissioners from selling bonds below par. The appellant was awarded the contract, and thus secured the opportunity and privilege for doing the work, and received in consideration for his notes an increase of $6,200 in the price that was to be paid him for work that he was to do. The preponderance of the testimony shows that he would have been paid this amount if he had not abandoned the work. Although the contract was ultra vires, there was nothing in the law prohibiting the commissioners from allowing him the sum of $6,200 in crease in his original bid for the work that he had engaged to do, and, as we have stated, the preponderance of the evidence shows that he would have'realized this additional amount which the commissioners agreed to pay him if he had completed his work. The district therefore is entitled to recover the amount of the notes.
3. The court erred in not rendering a decree in favor of Burks against the district in the sum of $5,445.73, with interest. The testimony of Burks was to the effect that, as a subcontractor under the appellant, he did work for which the district received the benefit, and he had not been paid for such work. The total amount of his work in the aggregate was $13,706.82. The district had paid him .thereon the sum of $8,261.09, leaving’ a balance due him of $5,445.73. He performed the work under the supervision of the engine'er of the district. The engineer testified, among other things, that this sum was the correct amount due Burks for his work, and that this amount was due on or before August, 1920. He further testified that the work done by Burks was entirely satisfactory.
The testimony tended to prove that the district had withheld $5,000, the cash in its hands which had been deposited by the appellant, and which it had withheld from him because he had failed to pay his subcontractor, and that it turned over this amount to Burks, on the theory that he should have pay for his work and that they were authorized to pa3>- him under the provisions of § 5448 of 'Crawford & Moses’ Digest. That section provides, among other things, that “when it appears to the board of commissioners that the contractor is not paying for labor and material, they may withhold, in addition to the fifteen per cent., any and all amounts due the said contractor until the labor and material has been paid for, or, if they deem it best, they may, upon proper notice to the contractor, pay out to laborers and material-men such funds as are on hand to the credit of the contractor.”
While Burks’ contract was with the appellant, and while he had no contract with the district, yet the fact remains that Burks did the work under the supervision of the engineer of the district. The commissioners of the district knew that he had not been paid for the work. Neither had the district paid the appellant for this work. The work was satisfactory'; the district received the benefit of it; the district does not deny that the work was worth the amount which Burks claims; therefore it occurs to us that, in equity and good conscience, the district is liable upon a quantum meruit to Burks in the sum of $5,445.73, with interest at 6 per cent, from August, 1920. For this sum the court should have entered its decree. See Kramrath v. Albany, 127 N. Y 575; Buck v. Eureka, 124 Calif. 61; New Athens v. Thomas, 82 Ill. 259; Frankfort Bridge Co. v. Frankfort, 18 B. Monroe, 41; Hardwick v. Wolcott, 61 Atl. 471.
The cause will be remanded, with directions to the trial court to enter final decrees in accordance with this opinión, and for such other and further proceeding’s as may be necessary to conserve the rights of the parties. | [
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Humphreys, J.
Appellant was indicted, tried and convicted of the crime of seduction in Franklin Circuit Court, Ozark District, and as punishment therefor adjudged to serve one year in the State Penitentiary. From that judgment an appeal has been duly prosecuted to this court.
Appellant’s first contention for reversal is that the evidence is insufficient to support the verdict, first, because it does not reveal an unconditional promise by appellant to marry the prosecutrix as an inducement to the act of sexual intercourse; and second, that the evidence of the prosecutrix was without corroboration.
(1) The prosecutrix testified in response to inter- • rogations as follows: “ Q. How did you come to have intercourse with him? A. Because I loved him. Q. And his promise of marriage? A. Yes sir.” The prosecu-trix also testified that two. dates were set for their marriage. This testimony meets the requirement of the law, that there must be unconditional promise of marriage.
(2) The law requires that the testimony of the prosecutrix be corroborated, both as to the promise of marriage and the fact of intercourse, by proof, other than her own, of a direct or inferential nature. Polk v. State, 40 Ark. 482; Laster v. State, 77 Ark. 468; Nichols v. State, 97 Ark. 421. The prosecutrix testified that the courtship of herself and appellant covered a period of about fifteen months; that during the time they were twice engaged; that appellant first promised to marry her in the spring of 1921; that she purchased some clothing for the occasion, and for that purpose went to Webb City in company with Walter Conley and his wife during the month of March, 1921; that subsequently the engagement was broken, but was renewed in August of the same year; that at that time she yielded her person to him, and the illicit relationship continued for a number of months; that in November she became pregnant by appellant, and as a result a child was born in August, 1922; that during the first and second courtships he came to see her from one to four times a week, and that she received him to the exclusion of all others, except very occasionally she would go with some other boy, and he with some other girl. Arch Sewell, father of the prosecuting witness, testified that appellant came to see his daughter continually f or a long period of time, beginning some time in 1921; that his daughter received his attentions to the exclusion of others; that he went with her regularly and took her to parties, church, Sunday-school, and prayer meeting; that during the continued courtship he purchased clothes twice for. his daughter to get married. The deputy sheriff of Logan County, a Mr. Kirkpatrick, testified that, in a conversation with appellant and his father, Mr. Watson, the father said that the boy had fixed to get married at one. time but he put a stop to it, to which statement appellant replied that he would have taken the girl but was damned • proud now that he didn’t.
Walter Conley testified that in March, 1921, the prosecutrix accompanied him and his wife to Webb City, but that he could not remember whether she bought anything on that occasion.
■' It is inferable from the testimony of Arch Sewell that his daughter was engaged to appellant, and that appellant was the father of the child; also that his daughter and appellant were engaged. His testimony showed a long, constant, persistent, exclusive courtship, during which time he purchased clothing for his daughter on two occasions for them to marry. The testimony ■ of Walter Conley corroborates that of the prosecutrix, to ■some extent, with reference to buying a dress in which to marry. The testimony of the deputy sheriff tends to ■establish an admission on the part of appellant that he was engaged to the prosecutrix. There was, then, corroborating testimony from which the promise of marriage and the fact of sexual intercourse might be inferred, and the weight thereof was a question for determination by the jury. Jackson v. State, 154 Ark. 119.
: Appellant’s next contention for reversal is that, in giving instruction No. 1, the court told the jury that it should convict appellant if they found he made “a false, ■feigned, feigned promise of marriage,” instead of a false, feigned, express promise of marriage.” The statute requires that there shall be an express promise ■ of marriage, whether false or feigned, before there can be a .coxiviction. Burnett v. State, 72 Ark. 398. The court not only read the statute to the jury, but, in giving instruction No. 7, called the attention of the jury to the fact that the law required an express promise of mar- . riage as a prerequisite to conviction. It is apparent that the word ‘‘feigned” was used twice in instruction No. 1, through, inadvertence, and was a clerical error.- It could not have misled the jury, as the correct word, ‘’express,” was used in instruction No. 7. The only way to'take ad-wantage of a clerical error in an instruction is to make a specific objection thereto, and this was not done.
Appellant’s next contention for reversal is that ■the' court" erred in refusing to give instruction No. 5, requested by him. The purport of this 'instruction'was 'a direction to the jury to discard the testimony of the prosecutrix, for the time being, in order to ascertain whether there was outside substantial evidence to show a promise of marriage, and the fact of sexual intercourse, The vice in this instruction is that it contained a direction to emphasize one part of the testimony to the exclusion of the other. In order to ascertain whether there was substantial evidence corroborating that of the prosecutrix, it was necessary to use her testimony as a basis therefor, and to consider the bearing of the independent evidence upon her evidence. This could not have been done had her evidence been discarded for the time being. The entire body of the evidence should be retained at all times in the minds of the jurors, and treated and considered as a whole in determining the innocence or guilt of an accused.
Appellant’s next contention for reversal is the refusal of the court to give his requests numbered 1, 6, 7 and 10. Each of these instructions told the jury it was necessary for the evidence of the prosecutrix to be corroborated by other evidence, both as to the promise of' marriage and the fact of sexual intercourse, before they could convict appellant. This point and all other matters touched upon in the instructions were fully covered by instructions given by. the court upon his own motion.
Appellant’s next and last contention for reversal is that the court erred in giving instruction No. 7, over his objection, relative to his right to testify, and the weight to be attached to his evidence. Appellant did not testify in the case, so the instruction was abstract, and for that reason should not have been given. It was prejudicial because it necessarily called the jury’s attention to the fact that he failed to testify in his own behalf, although such right was accorded to him by the law.
For the error indicated the judgment is reversed, and the cause remanded for a new trial. | [
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Hart, J.
Clarence Sheridan prosecutes this appeal to reverse a judgment of conviction against '.him for violating- § 6171 of 'Crawford & Moses’ Digest. The section reads as follows: “It shall he unlawful for any person, firm, corporation or association to receive for storage, distribution, or on consignment, for another, the liquors mentioned in § 6165 of the act, or any of them, or any other liquors, bitters or drinks prohibited by the laws of this State, to be sold, bartered, or otherwise disposed of in this State.”
The liquors mentioned in § 6165 are “any alcoholic, vinous, malt, spirituous, or fermented liquors, or any compound or preparation thereof commonly called tonics, bitters, or medicated liquors.”
According to the testimony of the witnesses for the State, Clarence Sheridan was working in a restaurant in Hot Springs, Ark., for Harry Moore. The constable received information that intoxicating liquors were stored in the residence of Harry Moore in Hot Springs, Ark., and sent two of his deputies there to make an investigation. They found the house locked, and then tried to get in through the windows. They finally found a window in the house unlocked, and went in through it. They found Clarence Sheridan on a bed in the house, asleep. They found 75 or 80 pints of beer and a lot of empty bottles there. The empty bottles appeared to have contained some kind of “home brew.” On cross-examination one of the witnesses testified that-all of the liquor found by them appeared to have been some kind of “home brew.”'Both of them said that they did not know whether or not the liquor contained any per cent, of alcoh ol.
The defendant denied having any possession or control over the liquor whatever, and said that he was unwell and had merely been permitted by his employer to sleep in the house that day. His testimony was corroborated by that of Harry Moore, who said that the liquor belonged to him, and that it did not contain any alcohol.
Reliance is placed by the State for a conviction npon the case of Rogers v. State, 133 Ark. 85. In that case a search was made of Rogers’ house, and a quantity of corn liquor and several empty bottles were found. There were 'also some jugs or containers on the premises. Some of the liquor was found concealed behind the barn, and there were about three dozen bottles which had been cleaned, and a funnel was in one of them, ready for liquor to be poured into it. The court held that this was substantial testimony to sustain the verdict. The difference in the two cases is that the witnesses in the Rog’ers case said that the liquor found by them on 'the premises was corn whiskey. The court will take judicial notice that com whiskey contains alcohol and is intoxicating’.
In the present case the liquor found on the premises is called beer, but it appears from the evidence for the State to have been some kind of “home brew.” The witnesses did not know whether it contained any alcohol or not. The burden of proof was upon the State to show the guilt of the defendant, and it devolved upon it to show that the liquor came within the kind enumerated above. Having failed to show that the “home brew” found on the premises of Harry Moore contained any per cent, of alcohol, a material ingredient of the offense was not proved.
This case is not governed by the long-established rule that this court will not disturb the verdict of the jury upon the mere weight of the evidence. Where, as’ in this case, the evidence wholly fails to sustain the verdict upon a material issue in the cause, it is as much the duty of this court to reverse the judgment below and' to remand the cause for a new trial as it would be for any error of law occurring at the trial and excepted to. The reason is that the question as to the sufficiency of the evidence to support the verdict becomes one of law where there is an entire absence of evidence on some material point.
It follows that the judgment must be reversed, and the cause will he remanded for a new trial. | [
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McCulloch, C. J.
This action was instituted by the plaintiff, Simon Yaffee, against the Fort Smith Light & Traction Company to recover damages on account of personal injuries, and injuries to plaintiff’s automobile, alleged to have been caused by a collision between the automobile and a street-car. .In the complaint, negligence on the part of the men operating the street-car is charged with running the car at high speed and failing to give warning of the approach to a crossing, and with failing to exercise ordinary care to prevent the collision, after discovery of the perilous situation of plaintiff and others in the automobile.
The answer contained appropriate denials of all the allegations of the complaint with respect to the responsibility for the collision, and also a denial of the allegations in regard to the extent of the injuries sustained by plaintiff.
There are two separate allegations in the complaint, the first seeking damages for loss of plaintiff’s eyesight, and in the second paragraph damages are laid on account of the destruction of the automobile.
There was a trial of the issues, which resulted in a verdict in favor of the defendant on the first paragraph of the complaint, and a verdict in favor of the plaintiff on the second paragraph, and assessing the damages for destruction of the automobile in the sum of $700. The form of the verdict was: “We, the jury, find for the plaintiff in the sum of $700 for damages to car, and nothing for personal injury.” Each party asked for a new trial and appealed, and the respective motions were overruled. The case being here on a former appeal of the plaintiff from a judgment in favor of the defendant, we reversed the judgment and remanded-the -cause for a new trial on account of error in the court’s charge to the jury. Yaffee v. Ft. Smith Light & Traction Co. The facts are stated in greater detail in the opinion on the former appeal than is necessary to do at present.
The plaintiff asks for a reversal of the judgment on the ground that the verdict against him -on the paragraph seeking recovery for personal injuries was not supported by any substantial testimony.
The undisputed facts are that appellant, accompanied by members -of his family, was driving an automobile 'along -one of the streets of Fort Smith on Sunday afternoon, August 1, 1920, and there was a collision between his -car and the -street-oar at a -crossing where two streets intersected. The automobile was badly damaged, and there is no contention on the part of defendant that the verdict was excessive on that branch of the case. Plaintiff testified that, when the collision occurred, he was endeavoring to get hold of the emergency brake, and that the impact threw his head against the steering-wheel -and inflicted a painful injury. He and some of the -other witnesses said that there was a gash cut in his head. He claims that the impact and shock caused him to lose his eyesight. There was abundant testimony to support plaintiff’s -contention that he was thrown against the steering-wheel and received an injury which caused the loss of his eyesight. He introduced witnesses whose testimony tended to- show that the loss of his -eyesight was caused by injuries received at the time of the collision.- On the -other hand there is, we -think, substantial testimony that the plaintiff received no physical injury at the time of the collision. He stated that immediately after the collision- he felt pain -and began to notice that -his eyesight was affected, but witnesses introduced by defendant stated that they were at the scen-e a few moments after the collision occurred, and that appellant not only stated that no one Lad 'been hurt, but that be gave no evidence by bis conduct of having received any injury. These witnesses say that they .saw no bruises .or scars, and did not see him holding up his hands to his eyes, as some of the plaintiff’s witnesses claimed they saw.
The collision occurred during the afternoon, and shortly before eight o’clock that night appellant sent for his family physician, Dr. McGrinty, on account of one of his children sticking a nail in his foot, and, after the physician treated the boy’s foot, plaintiff called'on him to examine his eye, claiming, according to Dr. McGrinty’s testimony, that he had received an injury. The doctor testified that he is a general practitioner, and had no special experience in the treatment of eye troubles, but that he examined plaintiff’s head and eyes carefully and found no bruises or other injuries on his head, and could not discover anything wrong with plaintiff’s eye. Some of the witnesses testified that plaintiff’s eyes were bloodshot at that time; Dr. McGrinty testified that he found nothing of that kind. He recommended to plaintiff that he go to a specialist, Dr. Moulton, for treatment the next morning. Plaintiff went to see Dr. Moulton the next morning, and the doctor testified that he found both of plaintiff’s eyes markedly deficient in sight, but that-it was an old trouble and had not recently begun. He testified that there were no scars or bruises about plaintiff’s head or face, and that his eye appeared to be normal, until he examined it with an opthalmoscope and its injured condition was found, but that that condition was, as before stated, of long duration.
We are of the opinion that this testimony was sufficient to warrant the jury in finding that plaintiff received no substantial injury resulting from the collision. We are not called on to weigh the testimony further than its legial sufficiency. Plaintiff was, of course, entitled to :at least nominal damages upon a finding of negligence on the part of defendant’s servants in causing the injury, but causes are not remanded for a new trial on account of failure to award merely nominal damages. Plaintiff recovered costs below on account of the verdict being in his favor on the second paragraph of the complaint, therefore he had no ground to appeal from the judgment merely denying him nominal damages.
The evidence warrants a finding that plaintiff not only did not receive ¡an injury to his eyesight, as claimed, but also that he did not suffer any personal injury at all to the extent that entitled him to anything more than nominal damages.
Wo next consider the appeal of the defendant, and we discover no grounds for reversal of the judgment. There are numerous exceptions to the rulings of the court in giving and refusing instructions, but we find that none of these assignments of error are of sufficient importance to discuss, except the one which relates to the giving of instruction No. 8, at the request of appellant, which reads as follows:
“ Should you believe from the evidence that the defendant’s motorman or conductor in charge of one of its street-cars, while approaching C Street at a point where C Street crosses defendant’s track, saw plaintiff at a distance of fifty or sixty feet from the track at said crossing, approaching said track at a speed of fifteen or twenty miles an hour, and that it was inevitable for plaintiff’s automobile to strike the said street-car, or the said street-car to strike plaintiff’s automobile, then it became and was the duty of said motorman or conductor to use all reasonable means in their power to reduce the speed of said street-ear or stop same in order to avoid the said street-car being struck by plaintiff’s automobile or plaintiff’s automobile being struck by said street-car.. And if you believe from the evidence, circumstantial or direct, that said motorman or conductor failed to exercise reasonable and ordinary care to reduce the speed of said street-car or stop sanie in time to avoid the injury1 complained of, then your verdict should be for plaintiff, although you may believe that plaintiff was himself at the time negligent in so approaching said street-car.”
The objection to this instruction was general, and, unless it was inherently erroneous, this does not call for an analysis of the instruction merely to discover the formal defects. It is clear from a consideration of the language of the instruction that the court meant to tell the jury; in substance, that if the mo-torxnan saw, or the conductor saw, the plaintiff in a perilous position, or, using the language of the instruction, in a situation where “it was inevitable for plaintiff’s automobile to strike the said street-oar, or the said street-ear to strike plaintiff’s automobile,” then it was their duty to use all reasonable means in their power to avoid the collision by reducing the speed of the car or .stopping. This is what the instruction was intended to mean, and what it does mean, taking the language in its ordinary acceptation. The language, it is true, is- of doubtful import, but this ought to have been met by a specific objection to its form. Counsel rely upon our decision in the recent case of Blytheville, Leachville & Ark. Southern Ry. Co. v. Gessell, 158 Ark. 569, where' we reversed a judgment for recovery on account of an injury to an automobile truck at a crossing because of an erroneous instruction on the duty of the railroad company to keep a lookout; however, there was a specific objection in that instance to the erroneous instruction, which -called the attention of the court to the defect. The instruction is not, we think, open to the objection that it assumes the existence of material facts, but, if there was doubt upon that -subject, that too should have been covered by a specific, not a general, objection.
Upon the whole, we are -of the -opinion that -the -cause was sent to the jury on proper instructions, and that there was no prejudicial error in the trial, and that the judgment .should be affirmed -on both appeals. It is so ordered. | [
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Hart, J.
(after stating the facts). As above stated, the ground upon-which the demurrer to the amended complaint was sustained by the court is that the contract sued on is contrary to public policy, and therefore void. This court has held that a contract to procure the passage of an act of the Legislature by lobby services, or by using personal influence with the members, is void as against public policy. Buchanan v. Farmer, 122 Ark. 562, and Miller County H. & B. Dist. v. Cook, 134 Ark. 328.
The Supreme Court of the United States has said that there is no real difference, in principle, between agreements to procure favors from legislative bodies and agreements to procure favors in the shape of ..'contracts from tlie heads of departments of the United States G-overnment. The court further said that the introduction of improper elements to control the action ol both is the direct and inevitable result of all such ar- ' rangements. Tool Co. v. Norris, 2 Wall. (U. S.) 45. See also Cole v. Brown-Hurley Hardware Co. (Iowa), 18 L. R. A. (N. S.) 1161, and Kansas City Paper House v. Foley Railway Printing Co. (Kan.), 39 L. R. A. (N. S.) 747.
In the case from Iowa, just cited, it was said .that no court should hesitate to declare void any agreement or contract to corrupt or improperly influence the official conduct of any public servant, but that it is an equally sound principle which leads courts to declare that, before applying such remedy, and permitting one who has received a valuable consideration for a promise, fair upon its face, to escape its performance by pleading the invalidity of his own agreement, such fatal defect therein must be so clear as to be free from doubt.
The question before the court here is whether or not the language of the complaint'brings the case within the ban of the principles of law above announced. It will be remembered that the court sustained a demurre],’ to the amended complaint, and the plaintiff declined to plead further. Contrary to the common-law rule, under our Code every reasonable intendment and presumption is to be made in favor of a pleading, and a complaint will not be set aside -on demurrer unless it be so fatally defective that, taking all the facts to be admitted, the court can say they furnish no cause of action whatever. Cox v. Smith, 93 Ark. 371.
Now if, under the allegationá of the complaint, the contract in question is susceptible of being carried out in a lawful way without conflicting in any manner with the common intent of the parties at the time the contract was entered into, there is no ground on which it can be held to be invalid. It is not enough, to defeat it that it is susceptible of an illegal use, or that one of the parties to it may have contemplated and designed such illegal use, if the other had a right to suppose, under the circumstances, that the contract was to have effect according to its apparent and lawful construction. Gregory v. Wendall, 40 Mich. 432.
In the instant case, according to the allegations of the complaint, the plaintiff and the defendants had entered into a partnership for the purpose of constructing improved roads under contracts with road improve- . ment districts organized under the statutes of the State. The plaintiff had a third interest in the partnership, but had personally collected data and made preliminary surveys, including a cross-sectioning of a public road whicli was to be constructed in Lawrence County by certain improvement district commissioners. The surveys made and the data collected by the plaintiff were of much value in bidding on said contract. It was a perfectly legal act for the plaintiff to sell the information he liad thus cob leeted to the defendants, to be used by them in bidding upon the contract. Of course, the plaintiff could not sell his personal influence with the commissioners to the defendants. Such an agreement on his part -would be against public policy, within the principles above announced, and would make the agreement void. • .
On the other hand, the sale of the data and information collected by him during the existence of the partnership, as' above recited, -would .not be contrary to public policy, and would afford a good and valuable consideration for a valid agreement between the defendants in relation thereto.
Tested by the rule'announced, it cannot be said that the contract sued on is invalid. The question is one of fact to be decided on by a court, after hearing the evidence of what was done and said by the parties to the agreement in question. It is sufficient here to say-that the complaint and exhibit thereto do not, on their face, necessarily allege illegal dealings between the parties.
Hence the court erred in sustaining the demurrer to the amended complaint, and for that error the judgment must be reversed, and the cause will he remanded, with directions to o'verrule the demurrer, and for further proceedings according to law. | [
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Humphreys, J.
Appellee instituted this suit against appellant in the circuit court of Crawford County, to recover damages for an injury received through the alleged negligence of appellant on January 30, 1921, in its shops at AJton, Oklahoma, while employed by and engaged in placing a spring in engine No. 1262, in pit No. 4. Omitting formal parts, the complaint is as follows :
“1. That the plaintiff is a citizen of the State of Missouri, and resides in Monett, in said State.
“2. That the defendant is a railway corporation, created and existing under and by virtue of the laws of •the State of Missouri, and therefore resides in said State, but is licensed to do business in the Státe of Arkansas, and that upon all days named herein it was operating a line of railway in this State; that it also operates a line of railway in the State of Oklahoma, said line passing through the town of Afton, Oklahoma, and was doing so on all days named herein.
“3. That on or about the 30th day of January, 1921 (the exact date being unknown to the plaintiff but well known to the defendant), the plaintiff was employed by the defendant at the town of Afton, in the State of Oklahoma, as a machinist and mechanic in repairing engines and train equipment; that while in the performance of his duties, engaged in repairing defendant’s engine No. 1262, at pit No. 4, it became and was necessary to put in a main left back driving spring on said engine; that in order to put said spring- in it became and was necessary for the plaintiff to go under the engine; that he did so, and in placing said spring in proper place he rested said spring upon the brake-rigging under said engine, and requested the foreman over him, H. L. Foley, to furnish assistance to aid him in properly placing said spring in position in said engine; that the said Foley in person undertook to assist the plaintiff in placing said spring; that thereupon this plaintiff raised said spring upon the frame, at the time advising said foreman not to undertake to move it until the plaintiff advised him to do so; that, as the plaintiff attempted to raise said spring, the said foreman, without being ordered to do so by the plaintiff, and without right, prematurely, carelessly and negligently shoved a jack lever bar up against said spring, and by the force of such shove pushed and shoved the said spring upon this plaintiff; that the said spring was heavy, and fell with great weight upon this plaintiff while he was stooped over, thereby injuring the plaintiff and wounding him in his back, body, limbs and spine, and otherwise internally and externally injuring and damaging him, and also caused him to have curvature of the spine, from all of which he has been caused to suffer great mental and physical pain, to lose •time, and have medicines and medical attention, and he will be compelled to lose time, to suffer great physical and mental pain and to spend money for medicines and medical attention for all time to come, and lie is permanently injured.
“4. That the said foreman, Foley, negligently shoved the said spring' upon this plaintiff, and without warning the plaintiff that he was going to do so; that the said foreman also negligently used a jack lever bar to handle said spring, the said bar being blunt and too large to fit into the eyes of the spring to hold it, said bar not being the tool usually used or proper to be used in doing what the said Foley was attempting to do; that by using a buggy bar or some other similar tool, small enough to pas® through the eye of the spring, which was a proper tool with which to do such work, it would have hooked into the eye of the spring and held it in position, and would not have shoved it and caused it to fall upon the plaintiff. That in holding the spring as he did the said foreman, Foley, and the said defendant failed to furnish the plaintiff with a reasonably safe place in which to work, and negligently failed to exercise ordinary care to do so, and negligently failed to exercise ordinary care to furnish safe and proper tools and appliances with which to do the work.
“5. The plaintiff further states that, by reason of the aforesaid carelessness 'and negligence of the defendant and its said foreman, Foley, he has been seriously and permanently injured and damaged, as herein set out, in the sum of fifty thousand dollars, for which sum he prays judgment, and for costs'and all proper relief.”
SECOND COUNT.
“The plaintiff, for a further cause of action against the said defendant, states:
“1. That he makes paragraphs 1, 2, 3, 4, and 5 a part of this paragraph the same as if they were specifically set out herein, word for word.
“2. That the said engine No. 1262, upon which'he was working at the time he was injured, as above set out, was a regular road engine of the defendant, and-wa® used by it in hauling and moving and conducting its interstate commerce business; that the said engine was being prepared by the plaintiff for ¡the defendant so that it could move freight and pull its trains in interstate commerce; that at the time the plaintiff was injured he was employed by the defendant in interstate commerce, and the defendant was engaged in interstate commerce, and intended to use said engine for that purpose.
“That by reason of the injuries aforesaid, caused by the carelessness and negligence of the defendant and its said foreman, Foley, the plaintiff had been seriously and permanently injured and damaged, to his great damage in the sum of fifty thousand dollars, for which sum he prays judgment, and for all proper relief herein. ”
Within apt time appellant filed its petition and bond in proper form, praying for a removal of the cause to the United States Court for- the Western- -District of Arkansas, upon the ground of a diversity of .citizenship. The petition was -overruled by the court,- over the objection and exception of appellant. Thereupon-appellant filed an answer, denying the material -allegations of the complaint, and interposing the further defenses of contributory negligence --and assumption of risk. The cause was then submitted upon the- pleadings, evidence, and instructions of the court, which resulted in- the judgment in favor of appellee, from which is this appeal.
Appellant’s first contention for a reversal' -of the judgment is that the -court erred in overruling its motion to -transfer the cause to the District Court of -the United States. The complaint alleges two causes -of -action, in separate counts. In the first count a cause of action, is charged under the State law, -and "in the; second count a cause is charged under the Federal Employers ’ Liability Act. At the time the petition for removal was filed, appellant was -a citizen -of Missouri and appellee a citizen of Oklahoma. It is provided in the amendment to the Federal Employers’"Liability Act that: “The jurisdiction of the courts of the United States under this act shall be concurrent with that of the courts of the several States, and no case arising under this act and brought in any State court of competent jurisdiction shall be removed to any court of the United States.” Appellee admits that, if it were not for this statute, the cause would have been removable on account of the diversity of citizenship. Sec. 28 of the Judicial Code of the United States is as follows:
“Any other suit of a civil nature, at law or in equity, of which the district courts of the United States are given jurisdiction by this title, and which are now pending or which may hereafter be brought in any State court, may be removed into the district court of the United States for the proper district by the defendant or defendants therein, being nonresidents of that State.”
It was said by this court in the case of Mo. Pac. Ry. Co. v. Tompkins, 157 Ark. 16, that “if the plaintiff brings suit in the State court of his district, the defendant, being a nonresident of such State, can remove such suit to the Federal court, whether the plaintiff objects or does not object, if the other conditions of the removability are complied with.” In support of the interpretation given the removal statute last quoted, the court cited the eases of General Investment Co. v. Lake Shore & Michigan So. Ry. Co., 260 U. S. 261, and Lee v. Chesapeake & Ohio Ry. Co., 260 U. S. 653. Appellee’s contention is that, notwithstanding the removability of the cause from the State to the Federal court on account of the diversity of. citizenship, if the cause is within the Federal Employers’ Liability Act, it cannot be removed. This contention would be sound if the cause stated was solely within the Federal Employers’ Liability Act. This court is committed to the doctrine that causes of action under the State law and Federal Employers’ Liability Act are separate and distinct causes of action; that one is not paramount or superior to the other, and, though joined', in the same complaint, which is permissible, they are two. separate causes of action. Midland Valley Rd. Co. v. Ennis, 109 Ark. 206. To adopt the suggestion of appel-lee that the cause alleged in the instant complaint under the State law merges in the cause alleged under the Federal Employers’ Liability Act would, in effect, overrule the Ennis case, supra. In this view, the next question which presents itself for determination is whether an entire case is subject to removal, when two separate causes of action are embraced in the complaint, one being removable and the other not. In the case of Flas v. Ill. Cent. Ry. Co., 229 Fed. 319, the court said: “The prohibition of removal mentioned in section 6 of the Employers’ Liability Act is limited to cases which purport, by the plaintiff’s petition, to arise under that act; and when, to a cause of action arising under that act, there is joined one which does not purport to arise under that act, the prohibition does not apply.” The rule thus announced finds support in the following cases: Lusk v. Osborn, 127 Ark. 170, 1. c. 178; Strother v. Union Pac. Ry. Co., 220 Fed. 731; Bedell v. B. & O. Ry. Co., 245 Id. 788; Givens v. Wright, 247 Id. 233; Patterson v. Buchnall S. S. Line, 203 Id. 1021; 2 Roberts, Fed. Liab., § 657, p. 1150 et seq; Shappirio v. Goldberg, 192 U. S. 232, 48 Law. ed. 419, 1. c. 424; Hayward v. Nordberg Mfg. Co. (C. C. A.), 85 Fed. 4, 1. c. 8; Greenfield v. U. S. Mortgage Co., 133 Fed. 784. Appellee has cited the cases of G. N. Ry. Co. v. Alexander, 246 U. S. 276, and N. T. C. & H. R. Ry. Co. v. Kinney, 260 U. S. 340, in support of his contention that a complaint may be so drawn as to allow a recovery under both the State and Federal law and yet be nonremovable. We do not understand that these cases are applicable to the point involved in ■the instant case. As we read them, only one cause of action is stated in each case. The question in the Alexander case was whether a nonremovable case stated in the complaint became removable under the testimony adduced without a voluntary act on the part of' the plaintiff converting it into a removable case. The court ruled that it required a voluntary act on the part of the plaintiff to convert a nonremovable cause into a removable one. The sole question involved in the Kenney case was one of limitations ,and not one of removal to the Federal court.
We think the weight of authority is to the effect that, when separate and distinct causes of action,are joined in the same complaint, one being removable ’and the other not, the entire case becomes subject to removal.
Other contentions are made by appellant for a reversal of the judgment, but, in our view of the law on the removability of the case, it is unnecessary to determine them.
The court erred in overruling the petition to remove the case to the Federal court, and for that reason the judgment is reversed, and the cause remanded with directions to allow the petition. | [
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Wood, J.
Charlie Clayton, the appellant, was indicted by the grand jury of Crittenden County in two counts. The first count was for 'burglary, and the second for grand larceny. The first count alleged that he “did unlawfully, wilfully, maliciously, burglariously, feloniously and with force break and enter the home of M. C. Williams, with the unlawful, wilful, malicious, burglarious and felonious intent to commit grand larceny, by unlawfully, wilfully, and- feloniously taking, stealing and carrying'away personal property of the value of more than ten dollars.”
The second count alleged that he “did unlawfully and feloniously take, steal and carry away ten bushels of corn of the value of $2 per bushel, of the total value of $20, the property of M. C. Williams.”
Clayton was tried and convicted of grand larceny, and sentenced by judgment of the court to one year in the State Penitentiary. Prom that judgment he appeals.
1. The appellant contends that the indictment was fatally defective because it joined the offenses of bur glary and grand larceny, where the proof showed that there was no relation between the two offenses, the charge of burglary being the entering of the house of Williams with the intent to commit a felony, and the charge of grand larceny being the stealing of com from the field of Williams. This contention of the appellant cannot be sustained, for the reason that the indictment does not on its face reveal the 'alleged defect of which appellant complains. Furthermore, if this defect were shown on the face of the indictment, the State elected to try appellant only on the second count of the indictment for grand larceny, which was a good indictment for that offense.
2. The appellant next contends that there was a fatal variance between the second count and the proof offered to sustain it; that the testimony offered by the State tended to show that the appellant went into a field and severed from the soil of Williams roasting ears growing thereon, of the value of more than $10. Appellant contends that this constituted trespass and not larceny, under § 2518, C. & M. Digest, which provides: “If any person shall sever from the soil of another any vegetable or produce growing thereon, of the value of one dollar or more, * * * and shall take and carry away, or convert the same to his own use, with intent to steal the same, he shall be adjudged guilty of larceny in the same manner as if the article so taken had been severed at some different and previous time.”
The appellant is not in an attitude to complain here of a, fatal variance between the second count in the indictment and the proof offered to sustain it, for the reason that he did not call attention to such objection in the trial court. Such alleged error in the ruling of the trial court is not made one of the grounds of his motion for a new trial. This was necessary. True, the appellant alleges, as one of the grounds of his motion for a new trial, that the verdict was contrary to the evidence, but the testimony for the State tended to prove the charge of grand larceny as set np in the second connt of the indictment.
3. The appellant next contends that the court erred in permitting a purported confession of appellant to go to the jury because the testimony tended to prove that such confession was not free and voluntary. Witness Curlin testified for the State as follows: “Q. Tell the jury whether or not you had any conversation with this defendant concerning M. C. Williams, or concerning this case. A. I did. Q. Where? A. Down in the office. Q. Do you know when it was with reference to the time that the case was to be tried that you talked to him?’ A. No, I don’t know just exactly the number of days, but it was several days after the case should have come'up. Q. To refresh you, do you know whether it was — you talked to him the day it was to come up, or do you know? A. No sir. The day I talked to him was the day they brought him back from Memphis. Q. Mr. Curlin, before he talked to you about the case, was-any inducement held out to him to get him to talk about it? A. None whatever. Q. Or any abuse or anything of that kind used to get him to talk about it? A. No sir. We were just laughing and talking about the circumstances. Q. Was he laughing about it? A. Yes sir. Q. Was he telling you about some occurrence? A. Yes sir. Q. Was the conversation on the part of Clayton free and voluntarily made? A. It was.”
Further along in his testimony the witness stated that the appellant was telling about his capture. He stated that he had stationed several half-pints of whiskey around Williams’ buggy and in his house, and he then put in a call for the officers, and thought the deputy sheriff would come and arrest Williams on a whiskey charge, but the policemen came instead, and the appellant said, “When the policemen came, he knew he had played hell. So they caught him and carried him down to the police station, and I believe he said they hit him on the side of the head, and he told them all about it.”
If it be conceded that the above testimony tended to prove that appellant made a confession, and that- same was not free and voluntary, still no prejudice resulted to the appellant from such testimony, because appellant himself to oh the witness stand and testified to the same state of facts brought out by such testimony.
4. The -appellant contends that the court erred in permitting the prosecuting attorney to propound improper questions in the cross-examination of a witness for the defendant. The character of these questions is indicated by the following examples: “Q. Didn’t you peddle a little liquor for Payton and Charlie, both of them? Q. I’ll ash this: was Charlie getting corn up there -out of that field to mahe liquor down there on his place? Q. Didyouworh at the still for him? Q. Didn’t pay you in the product of his corn?”
There was no error in these questions. It was proper to ash them, as they were calculated to elicit facts which the jury might consider as affecting the credibility of the witnesses. Jordan v. State, 141 Ark. 504; Kyles v. State, 143 Ark. 419, and other cases in Crawford’s Supplement to Digest, Witnesses, 981-2-3. Moreover, to some of the questions -no objection was made at the time, and no ruling of the court was elicited and obtained on any of them. Coon v. State, 109 Ark. 346-55.
The appellant also contends that the court erred in permitting the prosecuting attorney to ash the defendant, who had become a witness in his own behalf, if he had not committed murder, made whishey and sold it illegally, and also to ash him with reference to indictments procured against him for other offenses. These questions were likewise proper as tending to affect the credibility of the defendant as a witness. The court told the jury that they would consider such questions “only for the purpose of goingto the credibility of the witness.” The ruling was correct. Kyles v. State, supra; Jordan v. State, supra; Conner v. State, 132 Ark. 531; Shinn v. State, 150 Ark. 215, and other cases in Crawford’s Supplement to Digest, p. 982.
The record presents no reversible error.
Affirmed. | [
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McCulloch, C. J.
Appellee is a New Jersey corporation, -with its domicile and principal place of business in that State, and it sold and delivered to appellant, S. B. Wilson Telephone Company, a domestic corporation operating a telephone line at Cotton Plant, in this State, a certain quantity of metal cable to be used in the operation of a telephone plant. Co-appellants of the telephone company entered into a contract with appellee, before the sale, to guarantee payment of the price, ap-pellee having refused to make the sale without such guaranty. The negotiations which resulted in the sale were conducted by correspondence between the parties from their respective domiciles, and, when the order was accepted, appellee mannfactnred the cable at its plant in New Jersey and shipped it by common carrier, f. o. b. at the place of shipment, to the telephone company at Cotton Plant. Subsequently the guarantors executed- to appellee a negotiable promissory note f-tir -the price, and the present action was instituted by á'ppbllee on the note.
The only defense offered below was that appellee could not sue in this State because it had not complied with the statutes -of this State with reference to doing business here.
There is no evidence in the record that appellee ever did any business in this State or maintained any place of business here. Unless the character -of this transaction constituted doing business in this State, then ■appellee is not open to the charge of having violated the 'statute by attempting to do business here without complying with its terms.
The subject of what constitutes interstate commerce in the sale and delivery of merchantable articles has-been thoroughly discussed and determined in several very recent cases, in which it was decided that the solicitation of -orders in the State by traveling salesmen or by written correspondence does not constitute doing business in this State, where the contract of sale relates to a sale accepted in another State and shipment therefrom to a purchaser in this -State-. Coblentz & Logsdon v. L. D. Powell Co., 148 Ark. 151; Rose City Bottling Works v. Godchauax Sugars, Inc., 151 Ark. 269; L. D. Powell Co. v. Roundtree, 157 Ark. 121. According to the undisputed evidence in this case, the transaction now under review falls within each of those decisions, and constituted an interstate and not an intrastate transaction. Appellee was entitled to sue on the contract without offending against the terms of the statute.
Decree affirmed. | [
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Hart, J.,
(after stating the facts). There is a division of authorities on the question of whether a parol agreement of adoption whereby a parent surrenders a child to others upon their promise to adopt, rear, and educate it as their own, and to give it the same right of inheritance a.s a natural child, but which is not consummated by a statutory adoption, will, if otherwise 'fully performed, be enforced after the death of the adoptive parents. The views which we shall hereinafter express render it unnecessary to decide this question.
An agreement of separation between husband and' wife in which their property rights are settled is valid and binding between the parties. The law- is that, having entered into a valid separation agreement, the courts will not deem such contract avoidable unless the conduct of the parties is such that they themselves so regarded it. Carter v. Younger, 112 Ark. 483, and Dennis v. Perkins, 129 Pac. (Kan.) 165, and cases cited.
These cases also hold that where the panties to a valid separation agreement afterward come together, and live together as lmsband and wife, where their conduct towards each other is such that no other reasonable conclusion can be indulged than that they had set aside or abrogated their agreement of separation, then such agreement will be held to have been annulled by the parties to it, and their marital rights determined accordingly.
Tested by this rule, we think that the facts and circumstances of this case warranted the chancery court in finding that the marital relations between J. W.. Sherman and his wife never ceased, and that there was mutual forgiveness of the past misconduct on the part of each.
In the first place, it may be said that the agreement of separation shows on its face that it was an indivisible contract. It recites that the parties to it had married in Texas in September, 1917, and had since lived together as husband and wife. It further recites that it is impossible for them to live together any longer as husband and wife. Under the terms of the agreement the husband agreed to make certain repairs on a house belonging to his wife. She agreed to remove all of her property 'and furniture from his residence in a reasonable time. Each waived any right in the property of the other, and agreed to join in the execution of any deed necessary to convey the property.
J. "W. Sherman agreed to leave the city of Arkadel-phia and not again live there so long as his wife should do sd. The agreement was executed on the 14th day of April, 1921. The parties never, in fact, separated, but lived together in the home of the husband until he died on January 10, 1922. The husband was sick for five weeks, and his wife attended him faithfully during his last illness. The attending physician and their neigh bors testified that slie conducted herself as a faithful wife towards her husband.
The wife testified that they lived together during all of this time as husband and wife, and that her husband, for the most part, made the repairs on her house himself. According to her testimony, they never separated, and never considered that the separation agreement had any binding force and effect.
The agreement of separation contemplated that- he should leave the city of Arkadelphia, where they résided at the time. He not only did not leave, but the parties continued to live together in his home until his death nearly a year later. During all this time there was nothing in their conduct towards each other to indicate to their neighbors that they had separated and were not living together as husband and wife. The husband continued to support his wife, and they discharged their marital duties to each other. This conduct shows an intention on the part of bath of them to consider the separation agreement ended in all respects. .
The preponderance of the evidence indicates that it was not only their intention to end the contract, in so far as it required them to live apart, but also to annul it as to the settlement of their property rights. Hence the wife became entitled to support from her husband, and was supported by him until he died. She then became entitled to dower in his estate.
The evidence shows that, the property in controversy was a new acquisition, and that J. W. Sherman died without having any children of his own. Hence it was the contention of the widow that she was entitled to one-half of his property in fee simple, as her dower, under § 3536 of Crawford & Moses’ Digest. Earl v. Earl, 145 Ark. 559.
On the other hand, it is the contention of Frank Grould 'Sherman that, even if the separation agreement be deemed annulled, the- widow is entitled to only one-third of the personal property absolutely as her dower, and one-third of the realty for her life only.
The chancellor upheld the contention of the widow, and we think that his decision is correct. In the first place, it may be stated that Mrs. N. E. Sherman was the second wife of J. W. Sherman, and. was no party to the agreement to adopt Frank Gould Sherman. That agreement was made during the life of J. W. Sherman’s first wife. Frank Gould Sherman was never legally adopted by them. They agreed verbally to adopt him and raise him as their own child. The father of Frank Gould Sherman turned him over to J. W. Sherman and his wife, to be raised by them and treated as their own child. He knew that no statutory adoption was made or undertaken ■by them. Eelianee was placed entirely upon their- verbal agreement to take him and care for him as their own child. This they did, and always manifested the like affection for him as parents usually do 'for their own children.
When the first wife of J. W. Sherman died, Frank Gould .Sherman continued to reside with J. W. Sherman. After the latter married again, he continued to reside with them until after they moved from Texas to Arkansas. Frank Gould Sherman then went to Michigan, and resided there until he was summoned back to Arkansas during the last illness of J. W. Sherman. Hence, under the undisputed testimony, he does not occupy the relation of an adopted child, but only stands in the relation of an infant child for whose benefit a parol contract to adopt had been made.
As we have just seen, the plaintiff was not a party to that agreement, and such an agreement could not in any wise operate to bar her dower. The agreement had not been carried into effect when her husband died. Our statute now under consideration gives the widow an absolute estate in the property of her husband, and the interest thus conferred vests immediately in her upon the death of her husband. She takes absolutely an undivided oue-lialf interest in fee simple, and it is such an interest as immediately vests at her husband’s death. Barton v. Wilson, 116 Ark. 400; Crowley v. Mellon, 52 Ark. 1; Jacks v. Dyer, 31 Ark. 334; Tate v. Jay, 31 Ark. 576, and McGuire v. Cook, 98 Ark. 118.
J. W. Sherman died seized and possessed of the real and personal estate involved in this lawsuit, and there was no valid lien on it. Mrs. N. E. Sherman had not released or relinquished her dower in any.part of said estate. The verbal promise of her husband to adopt Frank Gould Sherman could not have the effect to' deprive her of her dower in his estate. She could only do that by some affirmative act on her part releasing or relinquishing her dower, or by some act which would operate as an equitable estoppel against her.
Nothing of this sort is shown by the record, and it follows that tlie chancellor was correct in holding ‘that she was entitled to dower under the provisions of § 3536 of Crawford & Moses’ Digest.
No other issues are raised by the appeal, and it follows that the decree will be affirmed. | [
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Humphreys, J.
The priority between a mortgage and a materialman’s lien is involved on this appeal. T. H. Tucker owned a certain two-acre parcel of land In the town of Hughes, St. Francis County, Arkansas. He built four bungalows, including walks into the houses and sidewalks in front of them, during the year 1920. Tucker was adjudged a bankrupt in October, 1921, and his trustee in bankruptcy was made a party to the suit, but asserted no rigid 'in the property. Appellant filed its claim for a lien with the circuit clerk of St. Francis County on January 21, 1921, for material furnished in the construction of the bungalows and walks. On De'cember 23, 1920, appellee obtained a renewal note and mortgage upon said two-acre tract from T. H. Tucker, then a single man, .evidencing an indebtedness of $5,638.35, which Tucker owed it. The mortgage was placed of record. Subsequent to the execution of the mortgage T. H. Tucker was married, and his wife was made a party to this suit for the purpose of foreclosing her dower interest in said lands. All the material which entered hito the. construction of the houses proper was ■furnished and delivered upon the ground by appellant more than ninety clays before it filed its claim for a lien. The material which was furnished, by appellant for the construction of the whlks was delivered upon the ground within ninety clays before the claim for the lien was filed. Part of the material furnished for the construction of the bungalows was stored in one of the houses and actually used in completing one or two of them within ninety days from the date the claim for a lien was filed. The value of the material furnished to construct the walks was $193.15. The balance due for material used in the construction of the bungalows was $3,326.49. All the material furnished for the construction, of the bunga-galows was charged on the books of appellant to T. IT. Tucker. The material used to construct the walks was first charged to Robert Porter, who had been employed to supervise the construction of the bungalows on a cost plus ten per cent. plan. There is .a dispute in the testimony as to whether the contract for material between Tucker and appellant included material for the walks, and whether the contract with Robert Porter for supervision included the construction of the walks. The charge against Porter for the sidewalk material was transferred on appellant’s books to the account of T. IT. Tucker. Warren Moore, bookkeeper for T. H. Tucker, and P. M. Van Houten, general manager of appellant, explained that a mistake was made in charging the sidewalk material to Porter’s personal account, and that the transfer was made upon discovery by Van Houten that the material in question was used in the construction of Tucker’s walks. Early in January, 1920, Tucker decided to build four, and maybe six, bungalows, dependent upon the cost. If built, Porter was to receive as compensation ten per cent, commission on the cost of the labor and material for supervision. He estimated the cost of the bungalows, based upon prices for material furnished by Van Houten, who participated in the conferences leading up to the agreement to build the houses. On January 8, 1920, an estimate was placed by Tucker with appellant for all the material supposed to be necessary in the construction of the buildings, with the understanding that it should be ordered out as needed. This estimate contained no material for the construction of the sidewalks, and made no reference to the material for walks. Van Houten testified that the first definite statement concerning material for the walks occurred in April or May, when it was understood that appellant was to furnish cement and gravel for them at Memphis prices when they got ready for the material. Tucker testified that he intended from the beginning to build the walks, but was not certain whether the bungalows and walks were embraced in a single contract. He later testified that the walks were constructed under a separate contract with Porter, who was to build them for thirty cents a foot and furnish the material himself, and that part furnished by appellant was originally charged to him individually. Porter testified that the materials were embraced in a single contract, but' admitted that he settled with Tucker on a basis of ten per cent, on cost of houses for supervising their construction, and for the walks on a foot basis. He stated that, in the settlement for the walks on a foot basis, Tucker assumed the cost of material charged to him personally on the walks, and, when transferred and charged to Tucker, the amount thereof was deducted from his contract price per foot for building the walks. Warren Moore testified that the walks were to be constructed, at first, on a cost plus ten per .cent, .basis,' but during the summer the contract was changed, and that the walks were built under a different contract from that under which the bungalows were built; that along through the summer an arrangement was made by which Porter was to furnish the material and labor and build the walks for so much per foot.
The chancellor found, upon sharply conflicting testimony, that the bungalows and walks were constructed under different contracts, the bungalows on a basis of ten per cent, plus cost, and the walks on a foot basis; that material for the walks was not embraced in the first estimate, but was sold later directly to Porter, who built the walks for so much per foot, furnishing the material himself. We are unable to say, after carefully reading the testimony, that the finding of the chancellor is contrary to a clear preponderance of the testimony. The finding is strongly supported by the original estimate, the book entries as originally made, and the settlement between Tucker and Porter. Based upon this finding, a decree was rendered in favor of appellant, declaring its lien for material furnished to build the walks paramount to the mortgage lien of appellee, but that the mortgage lien was superior to appellant’s claim for the unpaid balance due for material furnished to construct the bungalows. Upon the theory that the materials furnished for the construction of the bungalows and sidewalks were furnished upon separate contracts, this decree was correct. This court said in the case of Kizer Lumber Co. v. Mosely, 56 Ark. 544, that, “if the materials were furnished under one contract, he should file the account within ninety days after the last was delivered, but if the materials were furnished under separate and distinct contracts, it should be filed under each contract within the time limit.” This rule was approved in the case of Marianna Hotel Co. v. Livermore Foundry & Machine Co., 107 Ark. 245. The materials for the construction of the bungalows was delivered upon the ground" more than ninety da3rs before the lien was filed, and the material for the walks within ninety days from the date the lien was filed.
Appellant makes the further contention that its lien is superior to the mortgage lien because a part of the material furnished on the ground to construct the bungalows was not used in completing one or two" of them until the latter part of November, within ninety days prior to filing the lien. In construing the statute this court said, in the case of Marianna Hotel Co. v. Liver more, supra: “The date from which the limitation of the time.of filing a mechanic’s lien is to he taken is the date on which the last article is furnished under the contract.” We cannot agree with the suggestion of learned counsel for appellant that material is not furnished within the meaning of the statute until it is actually put into the building. A delivery of the material upon the ground, near the place where a building is to be constructed is furnishing material within the meaning of the statute, provided it is subsequently used in completing the building. • The limitation for filing a lien begins on the date of delivery of the last item or items. The burden, of course, rests upon the owner, after delivery on the ground, to show that the material was not used in the construction of the building in order to defeat a lien for the- material thus furnished. Central Lumber Co. v. Land & Granite Co., 84 Ark. 560.
.No error appearing, the decree is affirmed. | [
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LARRY D. VAUGHT, Judge
| Appellants Travis Sexton, Christina Bargiel, and Beaver Liquor, Inc., appeal the Sebastian County Circuit Court’s October 22, 2015 order granting summary judgment in favor of appellees Scott So-well, Lynn Sowell, and Town & Country, LLC. Appellants argue that the circuit court’s damage award was clearly erroneous. Because the appellants’ argument on appeal is not preserved, we affirm.
This case involves the purchase of a liquor store located in Fort Smith, Arkansas. In May 2012, appellants and appellees entered into an asset-purchase agreement, whereby appellants agreed to pay appel-lees $450,000 for the store assets. Appellants paid appellees $80,000 at closing, with the remaining $370,000 to be paid pursuant to a promissory note executed by appellants contemporaneously. The note provided that appellants were to make monthly payments of $7,153.14 to appellees beginning July 15, 2012, and continuing for sixty months until paid in full. Appellants also contemporaneously, executed and delivered to | ^appellees a security agreement, pledging all of the assets of the store as collateral for payment of the indebtedness. Finally, the parties executed an assignment of sublease, wherein appellees assigned their rights, title, and interest pursuant to a sublease of the store premises to appellants.
From July 2012 through April 2013, appellants made the required payments pursuant to the asset-purchase agreement, although some of the payments may not have been timely. In May 2013, appellant Travis Sexton asked appellee Scott Sowell if he would accept half of the May payment, and Sowell agreed. Appellants made the June and July 2013 payments.
Around midnight on August 11, 2013, Sowell texted Sexton and asked for a meeting. At that meeting, Sowell told Sex ton that appellees had repossessed the assets and had changed the locks at the store.
Appellants filed a complaint for breach of the asset-purchase agreement and for conversion against appellees on September 18, 2013. Appellees answered and filed a counterclaim, alleging that appellants had breached the asset-purchase agreement and the sublease. Thereafter, appellees filed a motion for summary judgment claiming that notice prior to their repossession of the assets was not required pursuant to the asset-purchase agreement and the assignment of sublease/sublease. Appellants filed a competing motion for summary judgment on September 11, 2015, arguing that the facts were undisputed that appellees breached the asset-purchase agreement by repossessing the store without notice.
|sOn October 19, 2015, the circuit court issued a letter opinion denying appellants’ motion for summary judgment and granting appellees’ motion. The court found that based on the contracts executed by the parties, the facts were undisputed that appellants were in breach and that appellees were not required to provide notice prior to repossessing the assets. The circuit court granted appellees rescission of the contracts, awarding appellees possession of the assets, which it found had retained their $450,000 purchase-price value. The court awarded no other damages, finding that appellees’ repossession expenses of approximately $81,324.13 were offset by appellants’ $80,000 down payment. On October 22, 2015, the circuit court issued an order granting summary judgment in favor of appellees.
On November 3, 2015, pursuant to Arkansas Rule of Civil Procedure 52(b), appellants filed a motion to amend findings of fact and order granting summary judgment. They argued, for the first timé, that the circuit court, when it rescinded the contracts, should have restored the status quo by accounting for the monthly payments they had made against the promissory note, entitling them to an award of $91,666.69.
On November 19,2015, appellants filed a notice of appeal from the October 22, 2015 summary-judgment order. Thereafter, ap-pellees, on November 30, 2015, filed a response to appellants’ motion to amend findings of fact and order granting summary judgment, requésting the circuit court to remove all references to rescission in its order because neither 1 ¿party requested rescission. On December 7, 2015, the circuit court enteréd an amended order granting summary judgment, which was identical to the October 22, 2015 summary-judgment order except it contained no rescission findings. Appellants did not file an amended notice of appeal from the December 7, 2015 order.
On appeal, appellants raise the argument they made in their November 3, 2015 Rule 52(b) posttrial motion to amend. They contend that, based on the circuit court’s rescission of the contracts, it erred in failing to account for the monthly payments they made against the asset-purchase agreement and in failing to award them $91,666.69 to restore the status quo. We cannot reach the argument because it is not preserved for appeal.
Arkansas Rule of Civil Procedure 52(b)(1) provides that if the court neither grants nor denies the motion within thirty days of the date on which it is filed, it shall be deemed denied as of the thirtieth day. Ark. R. Civ. P. 52(b)(1) (2016). Here, the circuit court did not take action on appellants’ motion to amend within the thirty-day window; thus, the motion was deemed denied on December 3, 2015.
Because appellants’ November 19, 2015 notice of appeal was filed before the disposition of their motion to amend, the notice is treated as filed on December 4, 2015, the day after their motion to amend was deemed denied. Ark. R. App. P.-Civ. 4(b)(2) (2016).- Pursuant to Rule 4(b)(2), appellants’ notice of appeal was effective to appeal only the underlying order, in this case the October 22, 2015 order granting summary judgment. Ark. R. App. P.-Civ. 4(b)(2). See Tate-Smith v. Cupples, 355 Ark. 230, 244, 134 S.W.3d 535, 543 (2003) (holding | (¡that when a posttrial motion has been deemed denied, the only appealable matter is the original order). Here, appellants’ argument on appeal was made for the first time after the circuit court’s entry of the October 22, 2015 order granting summary judgment. They could not have made the rescission-damages argument prior to the entry of the October 22, 2015 because neither party pled or argued for rescission at trial.
Appellants’ argument on appeal stems from the deemed denial of their November 3, 2015 motion to amend factual findings and order granting summary judgment. According to Rule 4(b)(2), a party who seeks to appeal from the denial of the Rule 52(b) motion shall, within thirty days, amend the previously filed notice. Ark. R. App. P.-Civ. 4(b)(2). See Addition to Reporter’s Notes to Rule 52, 1999 Amendment (stating that a party seeking to appeal from disposition of the posttrial motion must amend the original notice to so indicate).
Appellants did not file an amended notice of appeal from the denial of its November 3, 2015 motion to amend. Therefore, their argument on appeal—the one they made only in their motion to amend-— is not preserved. See Vibo Corp. v. State ex rel. McDaniel, 2011 Ark. 124, at 12-13, 380 S.W.3d 411, 420-21 (citing Rule 4(b)(2) and holding that the appellant failed to preserve its argument on appeal where its notice of appeal was filed prior to the disposition of its motion to amend and was treated as filed on the day after the motion was deemed denied; that notice was effective to appeal only the underlying judgment; and the appellant failed to amend the previously filed notice of appeal to include an appeal from the denial of its motion to amend or alter the judgment); Tate-Smith, 355 Ark. at 244 n.3, 134 S.W.3d at 543 (holding | nthat when a post-trial motion has been deemed denied, the only appealable matter is the original order and that any previously filed notice of appeal must be amended to appeal from the deemed-denied motion). Accordingly, we are precluded from reaching appellants’ point on appeal because it is not preserved.
We must affirm.
Affirmed.
Abramson and Brown, JJ., agree.
. On October 8, 2015, appellants filed an amended complaint, adding a claim for unjust enrichment.
. The summary-judgment order disposes of appellants’ conversion and unjust-enrichment claims.
.Appellants argued that to restore the parties to the status quo, they were entitled to $80,000 for their down payment plus $92,990,82 for the monthly payments they had made for a total of $172,990.82 and that appellees were entitled to $81,324.13 for their repossession expenses. The difference is $91,666.69.
. The Addition to Reporter's Notes to Rule 52, 1999 Amendment, provides further explanation of the rule, stating that the effect of paragraph (b)(2) is to suspend a premature notice until the motion is ruled on or deemed denied, and a new notice is not necessary to appeal the underlying case.
. It is of no significance that the circuit court entered an amended order granting summary judgment on December 7, 2015. The order was ineffective as to arguments made by appellants in their motion to amend because that motion had already been deemed denied. | [
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DAVID M. GLOVER, Judge
1 ¶Appellant Virgie Kelly appeals the Columbia County Circuit Court’s denial of her motion to dismiss guardianships of her person and estate based on Rule 4 of the Arkansas Rules of Civil Procedure and its denial of her requests to set aside or consider void previous orders of the trial court appointing guardians of her person. On appeal, Kelly argues her motion to dismiss should have been granted; she further contends the guardianship order, as initially entered, was not properly supported by expert evidence that she was incompetent or, at the very least, it far exceeded the type of guardianship necessary. We dismiss this appeal as moot because of an agreed order entered ten days after the order from which Kelly has appealed.
12This action began in October 2014 when Kelly’s brother, H.L. Haynes, petitioned for appointment of a temporary and permanent guardian of her person and estate, alleging each was necessary due to her medical issues. Haynes attached an affidavit from Kelly’s physician detailing the medical issues; he asked that he, being Kelly’s only sibling and closest living relative, be appointed guardian of her person, and that Farmers Bank & Trust be named the guardian of her estate. The circuit court granted Haynes’s petition, appointing him as guardian of Kelly’s person and Farmers Bank & Trust as guardian of Kelly’s estate in an order filed November 17, 2014. Thereafter, an order was filed April 13, 2015, granting Haynes’s request to substitute Brenda Sue Kennedy (Kelly’s niece) and John Haynes (Kelly’s nephew) as co-guardians of Kelly’s person due to H.L. Haynes’s health problems.
Two weeks later, on April 28, the co-guardians filed a petition to institutionalize Kelly due to the deterioration of her medical condition. This petition was supported with affidavits from a trust officer and a trust assistant from the bank; Brenda Sue Kennedy; John Haynes’s wife, Susan; and Kelly’s physician. An order filed May 7, 2015, granted the petition.
Three weeks later, on May 22, Kelly filed a petition requesting the guardianship be set aside and a comprehensive neurop-sychological evaluation be performed on her. The co-guardians contested this request. Then, on July 24, 2015, Kelly filed an emergency petition to have her previous motion heard by the circuit court; in the petition, her attorney also requested access to her medical records. The co-guardians again contested this petition, | ^arguing no party with standing brought the petition; the order appointing the guardians for Kelly was filed in November 2014, from which no appeal was taken; and more than ninety days had elapsed since the order appointing guardians was entered, and there was no basis- under Rule 60 of the Arkansas Rules of Civil Procedure to set aside the order. In.an order filed August 17, 2015, the circuit court authorized a complete mental evaluation for Kelly and ordered that Kelly’s counsel be granted access to her medical records. In a petition filed September 21, 2015, Kelly asserted a neuropsychological evaluation had been performed by Dr. Bryan Smith; that Dr. Smith was of the opinion there was a mild level of dementia for which Kelly would need some degree of caregiving support, but Kelly cbuld live at home with caregiver assistance; that while Kelly would need some degree of assistance and oversight, she could be involved in making decisions about her finances and other activities; that the guardianship should be removed or at least limited; that she was being held against her will in a nursing home, at times behind locked doors; and that she objected to her current guardians, fearing the purpose behind the guardianship was to control not only her person but also her estate until her death. The co-guardians responded, objecting to Kelly’s interpretation of Dr. Smith’s report; denying she was capable of making arrangements for caregiver assistance or of living at home with caregiver assistance; and denying Kelly was being restrained against her will. Kelly filed a motion on October 29, 2015, asking that she be released from the nursing home and be allowed to live in her home with qualified caregivers; the co-guardians asked that the motion be denied.
|4On November 13, 2015, Kelly filed a motion to dismiss the guardianships on the basis that the summons she received at the start of the proceeding provided she had thirty days to answer the petition, but the guardianship hearing was held only twenty-five days after the petition was filed and served. Kelly argued that defective service deprived the circuit court of jurisdiction and required the action to be dismissed. Kelly further asserted that numerous motions were filed and orders obtained which were not served on her; the petition to substitute guardians was not served on her; her niece and nephew were prohibited under the code from being co-guard ians, yet they were still appointed; and no hearing had been set on her motions seeking relief from the commitment-and-guardianship order. The co-guardians responded, asking that Kelly’s motion to dismiss be denied; they admitted co-guardians of the person were not permitted to be appointed unless married; and they asserted one of them would submit a resignation. The co-guardians also pleaded the affirmative defenses of waiver, laches, estoppel, unclean hands, and setoff. John Haynes immediately petitioned the circuit court for acceptance of his resignation as co-guardian of the person and for appointment of a successor guardian.
On November 24, 2015, Barbara Erland-son, another of Kelly’s nieces, sought and was granted intervention. The circuit court then, on December 7, 2015, entered an order releasing Kelly from confinement in the nursing home, accepting the resignation of Brenda Sue Kennedy as guardian of Kelly’s person, and appointing Barbara Erlandson as guardian of Kelly’s person.
On December 21, 2015, the circuit court denied Kelly’s motion to dismiss and denied | sher motion to set aside or consider void the previous orders of the court appointing guardians of Kelly’s person. It is this December 21 order that is the subject of this appeal. However, on December 31, 2015, ten days after the trial court had entered the order denying Kelly’s motion to dismiss and refusing to set aside the previous orders appointing guardians of Kelly’s person, the parties entered into and filed an agreed order. In this order, the parties agreed to continue both the guardianships of Kelly’s person and estate, with Barbara Erlandson, Kelly’s niece, to be substituted as the guardian of Kelly’s person, which Kelly approved; also, the resignations of both John Haynes and Brenda Sue Kennedy as Kelly’s co-guardians were approved; and Kelly was to be allowed to return to her home in Erland-son’s care. The agreed order further provided if Erlandson should leave or become unavailable for her duties, it was in Kelly’s best interest that she be subject to immediate confinement in a facility that offers caretaking assistance, and if Erlandson could not discharge her duties as guardian of Kelly’s person, Brenda Sue Kennedy would be appointed temporary guardian until a hearing could be held to appoint a substitute guardian. In the agreed order, Farmers Bank & Trust continued to serve as guardian of Kelly’s estate, but arrangements were made for Kelly and Erlandson to have access to a portion of the assets for Kelly’s use and benefit. The agreed order set forth Erlandson’s compensation for serving as guardian of Kelly’s person, as well as provisions for Erlandson to hire caregivers to give her respite from her duties; it provided prohibitions that Kelly not be removed from the court’s jurisdiction without prior court approval other than trips to surrounding areas, that Kelly not be allowed access or use of firearms or alcohol, and that Kelly not be allowed to drive or renew her driver’s license; and Uthe agreed order specified arrangements for Kelly’s medical appointments.
This agreed order was filed ten days after the December 21 order from which Kelly appeals; the agreed order was not appealed. We note in this order, Kelly agreed to continue the guardianship of her person and estate, and, more specifically, there is no limiting language in the agreed order to indicate it was contingent on the success of her appeal of the December 21 order. Because the parties have agreed to continue the guardianship, setting forth specific parameters for such in the agreed order, we hold Kelly’s appeal is moot and must therefore be dismissed.
As a general rule, our appellate courts will not review moot issues. State v. First Serv. Bank of Greenbrier, 2013 Ark. 101. A case becomes moot when any judgment rendered would have no practical legal effect on a then existing legal controversy. Id. There are two exceptions to the mootness doctrine, neither of which is applicable here. Id. Thus, because the parties entered an agreed order after the order from which Kelly brings her appeal, there is no existing legal controversy, and any decision rendered would merely be advisory, which we will not do. We therefore dismiss Kelly’s appeal as moot.
Appeal dismissed.
Hixson and Hoofman, JJ., agree.
. This order also granted the motion to accept the resignation of John Haynes as coguardian of Kelly’s person; this is not an issue on appeal.
. Although the order appointing guardians states Kelly was not present for the hearing, this was an error; the record clearly indicates that she. testified at the hearing. | [
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Hart, J.,
(after stating the facts). Art. 16, § 5, of the Constitution of 1874, among other things, provides that all propertjr subject to taxation shall be taxed according to its value, that value to be ..ascertained in such manner as the Q-eneral Assembly shall direct, making the same equal and uniform throughout the State. The object of this provision of the Constitution is to secure equality and uniformity in the imposition of the public burdens. The tax must be laid according to some rule of apportionment which is not arbitrary, but is such that the burden may be made to fall with something like impartiality upon the property sought to be taxed. The settled construction placed upon constitutional provisions similar to the one in question is that uniform taxation requires uniformity not only in the rate of taxation but in the mode of assessment upon the taxable valuation.
Counsel for appellants concede the general ride that, if a State tax is imposed, it must be uniform over ihe whole State; if by a county, city, town or other subordinate district, the tax must be uniform throughout the territory to which it is applicable. They claim, however, that the constitutional requirement of uniformity is not violated by the fact that, outside of the school dis-' triets in question, or within the school districts as regards other than school taxes, a different method of valuation prevails. In other words, they contend that the school taxes fall equally on all property in the special school districts, and that the State, county, and municipal taxes are in no wise disturbed thereby. We cannot agree with counsel in this contention. The manifest purpose of the provision of the Constitution above referred to is to secure uniformity and equality of burden upon all the property in the State with regard to general taxes of every kind' and description, whether they be levied for State,. county, municipal, school district, or road purposes. The imposition of the burden of general taxation in disregard of any rule of uniformity is always held unwarranted. The property owners of the school districts in question owe the State, county, and school districts the same duty, and are tinder the same obligations with every other property owner-in the State, and no more.
It is true that property such as railroads may be classified for taxation and assessed by different methods and by different officers from those assessing other property. But the object is nevertheless the same, and that is to arrive at the value of the property and tax it according to its value, making- the same equal and uniform throughout the State. While exact equality in taxation cannot be achieved, intentional inequality of assessments violates the mandate of the Constitution in question and invalidates the tax. The statutes under consideration intentionally provide a different valuation for the property in the school districts for taxation for school purposes than for other general taxation. The statute thus requires a mode or system of valuation by the assessor which is designed to operate unequally on the property in the school districts, in that it places a greater burden of taxation for school purposes than it does for State, county, and road purposes, and thereby disregards the plain mandate of the Constitution requiring the value of the property to be ascertained in a manner making the same equal and uniform throughout the State. The property owners in the school districts in question had a right to insist that all the property be valued on the same basis for general taxation, and had just grounds of complaint,because the statute in question violates the principles of the constitutional mandate in fixing the value of the same property at a given per cent, for taxation for school purposes and at a different valuation for other general taxes. While the Constitution does not require a full valuation, it does guarantee that the property shall be taxed according to its value, and that value shall be ascertained by laws making the same equal and uniform throughout the State. Ex parte Fort Smith & Van Buren Bridge Co., 62 Ark. 461: Bank of Jonesboro v. Hampton, 92 Ark. 492; and State ex rel. Nelson v. Meek, 127 Ark. 349.
It follows that the decree of the chancery court in each case will be affirmed. | [
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Hart, J.,
(after stating the facts). This court has held that, in a proceeding under the statute to call in the outstanding warrants of a county to redeem, cancel, reissue or classify them, only those warrants may be rejected which could not have been valid claims against the county under any state of the proof, or where the judgment of allowance was obtained by fraud. Monroe County v. Brown, 118 Ark. 524, and Izard County v. Vincennes Bridge Company, 122 Ark. 557. Those cases hold, further, that a review for mere errors of the court in canceling and refusing’ to reissue, warrants is a collateral attack on the judgment of the county court, which is not authorized under the statute.. It appears from the record that the order of allowance of the warrants in question in favor of the Illinois Steel Bridge Company was made on the 30th day of December, 1920, which was a day of the adjourned term of the county court. The order of cancellation and the refusal to reissue said warrants was made at á subsequent term of the county court held in August, 1921.
Hence, under the rule announced in the decisions cited above, the county court could not review the former judgment of the county court for errors in the allowance of the warrants, but could only refuse to reissue the warrants if the judgment of allowance was obtained by fraud, or if, under any evidence which might have been adduced, the claim of the Illinois Steel Bridge Company could not have been a valid one. There is no evidence tending to show that the judgment of allowance was obtained by fraud, and no claim on that account is made.
The county court canceled the warrants in question, and refused to reissue them because they had been issued without authority in the first instance. The county court erred in this conclusion. The bridge across Roaring Slough was a county bridge, which it was the duty of the county court to construct in the first instance, and to replace after the old bridge had worn out. Crawford & Moses’ Digest, § 827.
This court has held that, in an action against a county to recover for building a bridge, the presumption is that money to build the same has been appropriated. Howard County v. Lambright, 72 Ark. 330, and Watkins v. Stough, 103 Ark. 468. Hence the county court could liave made a valid contract in tlie first instance for tlie construction of tlie bridge across Eoaring Slough.
This court has held that a county may, like an individual, ratify an authorized contract made in its behalf if it is one tlie county could have made in the first instance. Leathem & Company v. Jackson County, 122 Ark. 114.
It follows that, if a county could ratify an unauthorized contract, it could ratify one which it had authorized. The bridge was let at public bidding, and the Illinois Steel Bridge Company, being the lowest bidder, received the contract. The bridge actually cost $8,398.97, and the cost of it was paid out of the funds of Eoad Improvement District No. 14 of Woodruff County. The road commissioners asked that the allowance be made in favor of the Illinois Steel Bridge Company, which had performed the' work of constructing the. bridge, and this was done by the county court, under an order duly entered of record. Hence, under the authority cited above, the most that can be said in the matter is that there was an irregularity in the allowance of the claim. It could not be said, in any event, that the county court was without authority to make the allowance under any evidence that might have been adduced in the matter. If it should be said that the claim should have been issued in favor of the road improvement district instead of the Illinois Steel Bridge Company because the latter company had already been paid for constructing- the bridge by the road improvement district, this would not render the allowance void and beyond the jurisdiction of the court, but would only be an error. The order of the allowance was obtained in favor of the Illinois Steel Bridge Company by the board of commissioners of the road improvement district. It was for steel used in a bridge for the county, and it could in no sense be said to be a void order of allowance.
Therefore we are of the opinion that the county court erred in refusing to reissue the warrants.
It cannot be said that the warrants were not presented for reissuance. They were in the hands of the county clerk, and the county court directed him not to deliver them to the board of commissioners of Eoad Improvement District No. 14. On the face of each warrant is the following, written in pen and ink: “Filed 7-30-21, by payee. Eoy Mitchell, clerk. Wrongfully issued without authority.” It would have been a vain and idle thing for the board of commissioners of the road improvement district to have formally demanded the reis-suance of the warrants when the county court had directed the county clerk not'to deliver the warrants to said board.
Again, it is insisted that the appeal should have been dismissed because it was taken by the chairman of the board of commissioners of the road improvement district, and not by an agent of the Illinois Steel Bridge Company. The record shows that the Illinois Steel Bridge Company had been paid by the road improvement district for the construction of the bridge, and that the bridge company had, in writing, assigned its claim in the warrants to the road improvement district. Sec. 475 of Crawford & Moses’ Digest provides that all bonds, bills, notes, agreements and contracts in writing for the payment of money or property shall be assignable. Under this statute the bridge company had a right to assign its interest in the warrants to the road improvement district. The latter then became the owner of the warrants and the real party in interest -in this proceeding. It therefore had the right to prosecute an appeal from the order of the county court canceling said warrants and refusing to reissue the same. Sec. 1091 of Crawford & Moses’ Digest provides that, where the right of the plaintiff is transferred or assigned during the pendency of the action, it may be continued in his name, or the court may allow the person to whom the transfer or assignment is made to be substituted in the action.
Finally, it is insisted that the court erred in not allowing oral evidence tending to show that the order of allowance on December 30, 1920, was made in vacation.
The record of the county court shows that the order of allowance was made on an adjourned day of the term of the county court, and this brings up the question as to whether or not the court erred in refusing to allow that record to be contradicted by parol evidence. This court has held that parol evidence may be introduced in a direct attack on a judgment or decree to show that it was rendered in vacation. The reason given was that, if the fact of the rendition of the decree in vacation could not be shown by parol evidence, we would have the .anomalous condition of a decree being'a nullity and of the parties affected by it being denied the right to establish that fact. Jackson v. Becktold Printing & Book Mfg. Co., 86 Ark. 591.
The rule is quite different, however, on collateral attack. The county court is a court of record, and upon collateral attack its judgments entered of record import absolute verity. If they are erroneous, the errors must be corrected in an application for that purpose to the court of which they are records. They cannot be impeached collaterally. Any other doctrine would make the records too uncertain and unreliable. Ferguson v. Kumbler, 25 Minn. 183. Such sanctity and protection must be afforded by the judgments and decrees of courts of record as are necessary to the protection of property and the preservation of the rights of the parties obtained under such judgment or decrees. Were the rule otherwise it would be in vain that the law prescribed an act of limitation or a mode of reversing the proceedings of tribunals in the appropriate forum, if the parties should be permitted to controvert their validity whenever collaterally drawn in question in any court. This would be enabling a court to do that indirectly which it could not do directly, and exercise appellate jurisdiction when none is conferred upon it. Evans & Black v. Percifull, 5 Ark. 424, and Clay v. Bilby, 72 Ark. 101.
Under tbe authorities cited above, the present proceeding is one to review the judgment of the county court in making the allowance for error, and it is therefore a collateral attack upon the judgment.
From the views we have expressed it follows that the judgment of the circuit court is correct, and should be affirmed. It is so ordered. | [
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Smith, J.
Appellant was convicted of murder in the first degree, and has been sentenced to be electrocuted. The indictment under which he was tried contained three counts, each charging him with having killed Hugh Throckmorton. The first count alleged that he killed Throckmorton by twisting and breaking his neck with his hands; the second count alleged that appellant killed Throckmorton by striking and beating him with a pistol; and the third count alleged that the manner and means of the commission of the crime were unknown to the grand jury; but both the second and third counts contained the allegation that the crime there charged was identical with that charged in the first count.
The court refused to require the State to elect upon which count appellant would be tried, and an exception was saved to that ruling. No error was eommitteed in this ruling, as it was not improper to thus charge the offense to meet the uncertainty in the proof and thereby prevent a variance. Williams v. State, 153 Ark. 289; Nordin v. State, 143 Ark. 364; Harris v. State, 140 Ark. 46; Davidson v. State, 108 Ark. 191; Grayson v. State, 92 Ark. 413.
According to the testimony on the part of the State, the crime was one of revolting brutality. Appellant was engaged in the manufacture and sale of moonshine whiskey, and was being freely patronized by deceased and several other neighbors, but he drank with them, and they all became more or less intoxicated. Appellant took charge of the party and ran it to suit himself. He conceived the idea that some one had stolen his money, about two hundred dollars, and he accused Euclid Cooper of having taken it. Cooper had got drunk and had left the scene of the carousal, and appellant ordered Throck-morton to find and bring Cooper to him, and he told Throckmorton that if he did not bring Cooper back he would kill him. Appellant had a controversy with one Jim Parham about a gun which he unsuccessfully attempted to take away from Parham, and then turned to Throckmorton and said: “You go get Cooper, or I’ll kill you.” Throckmorton protested that he did not know where Cooper was, but appellant marched Throck-morton out of the house and started with him towards the river, and cursed and abused him as he went, and he fired his pistol twice as he marched Throckmorton towards the river. Appellant does not appear to have shot Throckmorton, but the testimony strongly indicates that, after taking Throckmorton to the river bank, ar>-pellant beat him with his pistol and left him for dead, and he then returned and found Taylor and Lovewell, who testified that appellant compelled them to go with him to dispose of the body, and the three went back to the place where Throckmorton was lying, and they found he was not dead, but had regained consciousness, and he begged appellant not to kill him, but appellant seized Throckmorton’s head and, by turning it and twisting it, broke Throckmorton’s- neck. Taylor and Lovewell assisted appellant in putting the body in the boat, and they carried it down the river about three-auarters of a mile and dumped it into the stream. Before doing so, appellant ■ removed Throckmorton’s coat and had Taylor hang it on a snag in the river, and explained that he was having this done to make it appear, if the body was found, that Throckmorton had in some way drowned himself.
A physician who held a post-mortem testified that Throckmorton was dead when the body was placed in the river, and that the neck was broken. He testified that he conld not tell how the neck was broken, bnt that Throckmorton had not been hung.
Appellant was a witness in his own behalf, and admitted the trnth of much of the testimony against him, bnt denied having assaulted Throckmorton in any manner, and denied that Taylor and Lovewell went with him to the river bank, or that Throckmorton’s body was lying thereon, or that it was thrown into the river. Appellant admitted having quarreled with Parham, but • testified that it was because Parham, who was his partner in the liquor business and owned half of the money which had been stolen from him, would not give him his gun to be used in searching for Cooper. Appellant’s disagreement with Parham was renewed after his return from the river, where he had taken Throckmorton, and the admission of this testimony is assigned as error. We think this testimony was properly admitted, as the entire narrative was necessary to a correct appreciation of what appellant had done and why he did it.
What we have just said disposes of the objection to certain other testimony, all of which related to appellant’s conduct in connection with the maudlin quarrel which led to the killing, or tended to explain appellant’s connection with it.
Objection was made to the testimony of witnesses Waldrop and Smith, on the ground that their testimony showed that appellant was guilty of another felony, that of operating an illicit still. That fact was not proved as a circumstance unrelated to the crime with which appellant was charged, but was a circumstance mentioned by the witnesses in their testimony. Waldrop testified that he was notified that Throckmorton was reported missing the day after he was killed, and that he joined in the search for the body, and, during his search, went to appellant’s house, where he was offered some whis key by appellant, and appellant sent away for more whiskey, and on the next morning witness came upon the still, which was about a mile and a quarter from appellant’s house. This witness saw deceased’s mule, which he had ridden the day he was killed, at appellant’s house; and he also saw there two shotguns which the deceased and Cooper had been seen with on the day of the killing. The testimony of the witness Waldrop tends to show that appellant was taking no part in the search, although Throckmorton’s mule was at his place and the guns belonging to deceased and Cooper were in his house, and the still was located by the witness while searching for the dead man. Moreover, it was an admitted, undisputed fact that appellant was making and selling liquor. He made no denial of that fact, and the testimony of Waldrop and Smith was merely cumulative of that of other witnesses, whose - narrative of the incidents leading up to the killing necessarily involved the statement that appellant was making and selling whiskey.
W. C. Mize was called as a witness for appellant, and admitted, in his cross-examination, that armellant had bought at his store three hundred pounds of sugar a short time before Throckmorton was killed. It is no doubt true, as counsel for appellant insists, that the purpose of this cross-examination was to show that appellant was engaged in the manufacture of liquor; but, as we have said, this was one of the undisputed facts in the case, and we think no prejudicial error was committed in not excluding that testimony. Maddox v. State, 155 Ark. 19.
Appellant insists that the testimony of Taylor and Lovewell, if true, shows that they were accomplices, and that there was no corroboration of their testimony. Those witnesses testified that they went with appellant to the river and assisted him in disposing of the bodv onlv because they were required to do so, as appellant was armed with two pistols, and told them he would kill them if they did not assist him, and that he would kill them if they ever told what they had seen. The court submitted to the jury the question whether Taylor and Lovewell were accomplices or not, and gave a correct instruction on the subject of their corroboration if they were found to be accomplices. If the story told by these witnesses is accepted as true, they were not accomplices, and no corroboration of their testimony would have been required to support a conviction. But there was corroboration of their testimony. Other witnesses saw appellant march Throck-morton towards the river and heard him curse and abuse him and threaten to kill him if he did not produce Cooper, and in a short time appellant returned without either Throckmorton or Cooper. The sheriff of the county testified that, on the afternoon when the body was found, appellant told him that it would be found about twenty or thirty steps down the river, directly across the river from where the coat was hung on the snag in the river, and the body was found at about that place.
Upon a consideration of the whole case we are of opinion that no error prejudicial to appellant was committed, and that the testimony is legally sufficient to support the verdict, and the judgment must therefore be affirmed. | [
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Hart, J.
Eugene Jones prosecutes this appeal to reverse a judgment and sentence of conviction against him for assault with the intent to kill, charged to have been committed .by shooting Winfiéld Edwards with a shotgun.
According to the evidence for the .State, Winfield Edwards was in a houseboat of Miles Edwards on White River, in the Northern District of Arkansas County, Ark., at the time he was shot, in September, 1922. Eugene Jones came to the houseboat in the night time and asked for Goldie Ridgeway. Miles Edwards told Jones that Goldie Ridgeway was in the houseboat. Jones went away, and came back in about an hour. He asked Edwards to tell Ridg*eway to come out of the boat, and Edwards did so. Ridgeway refused to leave the boat. The wife of the defendant was also staying all night in the boat. Jones then said that he was going to shoot the “whole damn bunch” if Ridgeway did not come out of the boat. Ridgeway -still refused to leave the boat, and J ones then fired an automatic shotgun into the boat three times. Some of the shot hit Winfield Edwards, but did not hurt him much. Some of the shot also struck the wife of the defendant, but did not hurt her much.
■ Aeording to the testimony of .the defendant, he was drinking at the time, aiid did not intend to shoot into the boat or to harm any one in there. He admitted that he did not have a friendly feeling towards Eidgeway.
The evidence for the State was sufficient to warrant the jury in finding a verdict of guilty.
The first assignment of error is that the court erred in refusing to give the following instruction: “You are instructed that, before you can convict the defendant, Jones, for assault with intent to Mil, the State must prove beyond a reasonable doubt that the defendant, at the time he fired the gun, intended to Mil May Jones and Winfield Edwards, and in determining the intent you may consider the nature of the weapon and the manner of using it, together with all the other circumstances of the case. The intent must be proved and not presumed. ’ ’
This assignment of error is well taken. This court has several times held that when one intending to kill A shoots B, or if it be doubtful which 'he shot at, he cannot be convicted of an assault with an intent to kill B. Lacefield v. State, 34 Ark. 275; Scott v. State, 49 Ark. 156; Chrisman v. State, 54 Ark. 283; Chowning v. State, 91 Ark. 503; Roberson v. State, 94 Ark. 69, and Hankins v. State, 103 Ark. 28.
In the Lacefield case the court said that, while it is true that every person is presumed to contemplate the ordinary and natural consequences of his acts, such presumption does not arise where the act fails of effect, or is attended by no consequences; and where such act is charged to have been done with a specific intent, such intent must be proved, and not presumed from the act. In all of these .cases the court has held that, as the essence of the crime charged was the specific intention to take the life of a certain person named in the indictment, it was necessary to prove the intent laid in the indictment, to the satisfaction of the jury.
Tested by the ruling of this court in these cases, the refusal to give the instruction asked for by the defendant constitutes reversible error. Whether the defend ant assaulted Winfield Edwards -with, the specific intent to take his life, as alleged in the indictment, was a question of fact which it was his right to have determined by the jury, upon the evidence in the cause.
The court did not give any instruction covering this phase of the case. Hence, for the error we have indicated the judgment must he reversed, and the cause remanded for a new trial. | [
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Humphreys, J.
Appellee instituted suit against appellant in the circuit court of -Stone 'County to recover $1,000 alleged to be due him as a commission for selling the timber on about 700 acres of land owned by appellant. Appellant filed an answer denying the indebtedness, and this formed the only issue in the case. The issue thus joined was submitted to the jury upon testimony introduced by the parties and instructions given by the court, to which no objections were made, which resulted in a verdict and consequent judgment against appellant in said sum. From the judgment an appeal has been duly prosecuted to this court. As no objections were made to the instructions, it will be presumed that the court correctly declared the -law applicable to the facts in the case, so the only question which can arise on the appeal is whether, under the law, the judgment is supported by the evidence. The contract between the parties was that appellee should sell the timber for cash, and receive as commission for making the sale the excess purchase price over $10,000. Appellee presented a purchaser, J. P. Ivy, ready, willing, and able to purchase the timber for $11,000, $1,500 in cash and the balance on time, who was accepted by appellant, upon condition that appellee’s commission should be paid either with the two last notes, or out of them when collected. ■ Ivy then purchased the timber from appellant, paying him therefor $1,500 oasli and executing nineteen notes to him for $500 each, payable monthly, the first becoming due two months after date, which notes were secured by a vendor’s lien retained in the timber deed executed by appellant to said purchaser. . There is a conflict in the testimony as to whether appellee should have the last two notes, or the proceeds thereof when collected, as a commission. This conflict is immaterial, the effect of the contract being for appellant to receive $10,000 for his timber before appellee should receive his commission. The notes and timber deed were executed and5 delivered on August 31, 1920. At that time timber and lumber prices were at the pinnacle. Ivy was regarded as solvent. Appellee did not warrant his finan-.eial ability or guarantee the payment of the notes representing the unpaid purchase money. Later there was a sharp decline in the prices of timber and lumber, which demoralized the business. Ivy failed to make the monthly payments, and in March, 1921, claimed that he was unable to carry out the contract. After some investigation of the financial condition of Ivy by appellant and his- attorney, they concluded he was insolvent, and, on that account, agreed to a rescission of the contract, without the knowledge or consent of appellee, whereby the timber was deeded back to appellant and the notes returned to Ivy. Testimony was introduced by appellee, tending to show that Ivy was solvent when the contract was rescinded. Olay S. Henderson, who lived at Walnut Ridge, where Ivy resided, testified that in March, 1921, Ivy owned eighty acres of land, his home, a sawmill, and some personal property; that he carried $15,000 or $16,000 life insurance; that he considered him ¿rood for $3,000 to $5,000. This was in addition to the timber purchased from appellant, which was then worth $7.000. While appellee had agreecl’to wait for his commission until appellant had first received $10,000, appellant had no right to make an unnecessarv compromise and thereby defeat the recovery of appellee’s commission. It was appellant’s duty, under his interpretation of the contract, to collect the unpaid purchase money, if possible, and the testimony tended to show that he might have done so had he not compromised the matter and returned the notes. It is argued that, as the indebtedness was $9,500, Ivy was unable to nav same, even if it he conceded that he was g’ood for $3,000. This argument is not sound, for it leaves out of consideration the value of the timber. If $3,000 were added to the value of the timber, the amount would exceed the indebtedness by $500 or more. The testimony is susceptible of the construction that appellant prevented the payment of the notes by returning them to Ivy, when he might have collected them by legal proceedings. Appellant cannot avail himself of the defense of a nonperformance which he has occasioned. Pinkerton v. Hudson, 87 Ark. 506; Vaughan v. Odell & Kleiner, 149 Ark. 118. In this view of the testimony the evidence is sufficient to support the verdict and judgment.
No error appearing, the judgment is affirmed. | [
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Smith, J.
This is a suit on tbe part of tbe First National Bank of Monette against tbe First National Bank ' of Lepanto for the alleged unlawful conversion of a • promissory note. Tbe complaint alleged that the plaintiff bank was tbe owner of a negotiable promissory note, dated June 25, 1920, executed by J. H. Harkins as principal and L. D. Mullins as surety, to plaintiff as payee, for $2,000, and due in ninety days; that this note was sent by tbe plaintiff to defendant for collection, and was wrongfully converted by tbe defendant.
Ned Fraser was the cashier of the plaintiff bank, and bis brother, Clinton Fraser, was tbe president thereof, and they both testified that the note described above was sent to the defendant bank by registered mail, along with two other notes, for collection. Tbe other notes received proper attention, but no acknowledgment was made of the note sued on. There was considerable correspondence about this note, chiefly on the part of the plaintiff bank, and both the Frasers made trips to Le-panto to see about it.
It is practically conceded that Harkins received, from the plaintiff bank a note for $2,000, dated. June 25,' 1920, due ninety days from date, which he had signed; but, whether expressly conceded or not, the testimony. leaves no room for doubt on that subject, but there is a . question of fact whether Harkins received the note for the defendant bank or in his individual capacity, and there is also a question as to who the surety was, ■
The testimony is undisputed that plaintiff bank had held Harkins’ note for $2,000, with Mullins a,s surety thereon, and that this note was renewed, and Mullins was surety on it also-. This second note was not paid, but was renewed, and the note sued on is the note which was given in renewal. The president and' the cashier- of the plaintiff bank testified that Mullins had signed this note —the one sued on.
Harkins was tbe casliier of the defendant bank, and, before the expiration of the year in which the note was executed, he was succeeded as cashier by Mullins. Har-kins does not deny signing- the note sued on, but he did not state who signed the note with him. Indeed, objections were sustained to questions which would have elicited that information, it being the theory of the court that plaintiff bank could recover only for the conversion of the note described in the complaint. Mullins admitted having signed two notes as surety for Harkins, but he testified that he had signed only two, and denied that he had signed the last renewal note. On the contrary, he testified that Harkins told him the note had not been renewed, but had been paid.
The correspondence and the other testimony make it plain that the plaintiff bank did not expect the note to be paid at the time it was sent to the defendant bank for collection, but did expect a renewal, and Harkins finally attempted a renewal of it. This he did by sending to the plaintiff bank ¡a note for $2,000 signed by himself and Nawlyn, but this note was payable to the Bank of Lepanto, and not to the order of the Bank of Monette, and was returned bv the latter bank on that account. Harkins explained that this was a mistake, but he never corrected it.
Nawlyn testified that the only note of Harkins which he ever signed was the one payable to the defendant bank, and he denied that he had ever signed a note payable to the plaintiff bank.
It was shown that any mail addressed to the defend ant bank would, in the usual course of business, have passed through Harkins’ hands, and he no doubt received the note in question. What he did with it is not explained..
The tesfimorv developed the fact that the cashier of each of these banks was lending money to the other, and in about equal amounts; but they both testified that tliev had authority from their resnective boards to do so, Tt is the theory of the defendant that the cashier of the plaintiff bank knew Harkins was acting for himself, and not for the defendant bank, in this transaction, and an attempt was made, on his cross-examination, to develop the fact that the note was not sent to the defendant hank, hut was sent to Harkins individually. An objection was made to this testimony, bnt we think it was proper. If there was, in fact, a collusive agreement between these cashiers to lend each other money, and the cashier of the plaintiff bank sent the note to Harkins knowing that in what Harkins did he would be acting for himself individually, and not for the bank, the defendant bank would not be liable for the conversion of the note by Harkins, oven though he should admit its conversion, because, in a transaction of that kind, he would not be the bank’s agent. Little Red River Levee District No. 2 v. Garrett, 154 Ark. 76.
The Frasers denied there was any such purpose or understanding; bnt the question of fact is for the jury, ■ and we cannot say there was not sufficient testimony to carry that question to the jury.
This issue was submitted to the jury, and we would not reverse the judgment had the case gone to the jury on that theory alone; but the case was also submitted upon the theory that the plaintiff could recover in the event only that the jury found that the defendant bank had received the identical note sued on, that is, one signed by both Harkins and Mullins.
The plaintiff asked, but the court refused to give, the following instruction: “1. If you find from the evidence that the plaintiff bank sent to the defendant bank for collection a promissory note; that the defendant bank actually received said note; and that the defendant bank, after having either failed or neglected to collect said note, failed or refused, upon demand made by plaintiff, to return said note to plaintiff bank, the defendant bank is liable to the plaintiff bank for the conversion of said note, and you.should return a verdict for the plaintiff.”
It 'will be observed that this instruction did not deal with the amount of the recovery, which would, of course, be for the value of the note, whatever that was. Hooten v. State, 119 Ark. 334; Norman v. Rogers, 29 Ark. 365. Prima facie, the value of the note is its face, but the defendant is at liberty to show any fact or circumstance tending to invalidate it or reduce its value. Ray v. Light, 34 Ark. 421.
We think the instruction set out should have been given. If the defendant bank received for collection a note belonging to the plaintiff bank, it should account for it or surrender it. This is elementary law.
,The court gave, over plain tiff !’s objection, an in-structioh numbered 2, reading .as follows: “2. Unless you find from the evidence that the plaintiff owned the note set out and described in the complaint, your verdict should be for the defendant.”
To this instruction six specific objections were made, the third, fourth and sixth being as follows:
“3rd. Whether Mullins was surety on the note or not, it does not go to the question of liability. The defendant bank had no right to convert the note to its own use, whether Mullins was surety or not, or whether some one else was surety. This instruction is equivalent to stating to the jury that, even though they find that a note was sent to the defendant bank for collection, and that defendant received the note and converted it, still defendant would not be liable unless Mullins was the surety thereon.
“4th. The court should instruct the jury that the indebtedness involved in this action is the principal indebtedness of John Harkins, that there is no question that both banks are referring to the same debt, as the defendant bank has produced purported prior notes covering the same debt on which Mullins was surety; that the matter of who was surety on the third renewal of' this indebtedness, so far as a description of the debt is concerned, is not of the substance of the issue; that if the defendant bank converted a -note to plaintiff on which Harkins was principal, defendant is liable for the conversion, whether Mullins or some other person was surety on said renewal.
‘ ‘ 6th. This instruction makes the entire description of the note sued on material. Thus, a difference in date or interest rate would, under this instruction, justify the jury in returning a verdict for the defendant, which would not be the law.”
We think the instruction should not have been given, and that the objections set out were well taken. Sections 1234, 1235, and 1236, C. & M. Digest.
In the case of Molen v. Orr, 44 Ark. 486, Chief Justice Cockrill, for the court, said: “That there was a variance between the proof and the allegations of the complaint there is no question; but the materiality of the variance is not to be determined, as at common law, by the incoherence of the two statements on their face. It must be shown by the party alleging the variance that he has been misled to his prejudice. (Mansf. Dig., § 5075; Newman on Pl. & Pr. 720 et seq.; Green, Ib. 467). There was no pretense of surprise or of being misled in this case. Indeed, the only fact in the proof that is not found in the pleadings is the dissolution of the copart-nership, and the release by one copartner to the other of his interest in the matter in controversy. This evidence was admitted without objection, and we must take it that the parties deemed the variance immaterial, or that they treated the complaint as amended to admit siich evidence. Burke v. Snell, 42 Ark. 57; Green, Pl. & Pr. § 468; Manice v. Brady, 15 Abb. Pr. (O. S.) 173; Speer v. Bishop, 24 Ohio St. 598. So long as the claim proved is within the,‘general scope .and meaning’ of the pleadings the variance cannot amount to a failure of proof .(Mansf. Dig., § 5077), and it is apparent from -the record that no other claim than the one proved was within the meaning of either the complaint or answer.”
If the bank received a .note signed by Harkins and some one else, it should account for it. There was no attempt to- show that the note was without value, and if the defendant bank converted the note, then it should pay the plaintiff bank its value, whatever that may be.
A question is raised about the alleged misconduct of the jury, but as this is a question which is not likely to occur on a trial anew, we do not discuss this assignment of error.
For the errqrs indicated the judgment is reversed, and the cause remanded for a new trial. | [
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Wood, J.
G. G. Billings, a lawyer living in the city of DeQueen, Arkansas, whose office was situated upstairs in what is designated as the Tobin building, on the morning of September 21, 1922, was shot and killed in his office by Boy Selman. Selman was indicted for the crime of murder in the first degree for the killing of Billings, and was tried and convicted of murder in the second degree, and sentenced, by judgment of the court, to imprisonment in the State Penitentiary for five years, from which judgment he appeals.
Mrs. Billings, who assisted her husband in the office work, was in the office on the morning of the killing. Selman was in the office that morning about fifteen minutes before the shooting. He left the office, stating that he was going to the courthouse. While he was in the office, fie showed no feeling of anger toward Billings. Mrs. Billings beard her husband asking Selman if fie had come up there for trouble, and Selman replied, “No,” that lie was not looking for trouble. After fie left the office she took her baby and went to the drugstore, and while standing just outside the drugstore heard that her husband was shot. She ran to the office, and found him sitting in the chair where she had left him. There were two shots in his neck, one almost in the center and the other through the collar, and one' finger of his right hand was almost severed. Billings said, “B-oy Selman walked into the room and says, ‘I have got the dope for you,’ and shot me twice.” She asked Billings what he said to Selman, and Billings replied that he didn’t say anything —that Selman didn’t give him time.
Another witness, who heard two shots fired, in a few seconds thereafter saw Selman emerge from the Tobin building and go towards the courthouse. He saw Selman hand his pistol to another party. Witness asked him what was the matter, and he replied that he had shot Billings. He said: “I started in to see him, and he made for his old gun, and I shot him.” Witness went up to Billings’ office and found him sitting in a rocking-chair, with two bullet wounds in his neck. He spoke to witness and said, “Tom, he has killed me.”
Several witnesses who went into Billings’ office immediately after the shooting' testified to the effect that Billings said that when Selman came in he said, “T have got the drop on you,” and shot me. One of these witnesses, Abe Collins, a lawyer living at DeQueen, stated that when he went into Billings’ office he found Billings sitting in his rocking-chair with his head thrown back. Billings said, “Roy Selman has killed me.” Two or three minutes after this they put Billings on a stretcher and he assisted in carrying him to the hospital. While carrying him he asked Billings what he had done to Selman, and Billings replied, “Tried to collect a debt.” Witness then asked Billings, “What did you do to try to collect the debt?” and Billings replied, “Garnish.” Billing's told witness, in the conversation, that when Sel-man' came in the office he said, ”1 have got the dope on yon, or dope for yon.” Witness asked Billings if he did anything or attempted to do anything to Selman, and Billings replied, “Not a. thing.” Billings died about an honr thereafter.
Other witnesses testified to the effect that they heard Billings say that Roy Selman shot him and had killed him. One of the witnesses stated that he heard Billing say that Roy Selman had made the second trip to his office; that he came to the door the second time and Billings invited him in. He stepped in and said, “I have got the dead wood on you and, d- you, I am going to use it.” Another witness, who was rooming in the Tobin building, just across from Billings’ office, was sitting in his room when he heard the shots, and just prior to the shooting he heard some one come up stairs and go to Billings’ room, and heard Billings say, “Come in.” Then the door slammed, and the two shots were fired.
Another witness, who was on a telephone pole where he could look into Billings’ office, stated that he just hap-pended to look over in the window, and just as he did so he saw something.bright up there, and saw Billings sitting in the chair, and saw whoever it was in front of him with the bright gun. He saw the gun flash twice and Billings sitting in the chair when the first shot was fired. When the first shot was fired Billings jumped out, and when the second shot was fired he jumped back in his chair.
The appellant testified in his own behalf, and, after relating various conversations and controversies he had had with Billings concerning the claims of parties against appellant that had been put in the hands of Billings for collection, stated that Billings had in his hands the claim of one McKinney. He had paid Billings twenty dollars on this claim. Billings denied this, and said to witness, “I am darn tired of fooling with yon.” Billings said concerning this claim, “That is one debt yon are going to pay.” Appellant told Billings that if he would give him credit for the $20 he had paid him, he would give him an order for ten dollars out of every two weeks’ wages until the whole debt was paid, but that-he could not pay it at that time. Billings replied to this, “That is one debt you are going to pay. I will send two or three of you sons of a b-s to hell.” Appellant made no reply to this statement. Appellant stated that he had been to Billings’ office that morning to see him about this claim. He told Billings that he had been summoned. Billings told him to go and get the summons and bring it to him. Appellant went out and found it where he had dropped it, and, after a short conversation with one McCowan, whom he met on the street, in which conversation nothing was said about Billings, he again started up to Billings’ office to carry the paper. When he got to the office the door was closed. He knocked on the door, and Billings told him to come in. He walked inside and closed the door. He had the paper in his left hand. He took two steps and said: “Here is that paper for you.” Billings came over like this (demonstrating) and said, “You son of a b--, I have fooled with you the last time I am going to.” When Billings made that remark he moved toward the drawer of the desk. Appellant jerked his gun out and fired twice. He shot Billings because he thought Billings was preparing to shoot him with a pistol. Appellant had seen a gun in the drawer once or twice before that, and he thought Billings was trying to get it. During all the conversations with Billings the appellant was not mad and used no angry word toward him. He shot at Billings’ hand, thinking that would stop him. The shots were fired abo.ut as close together as a double-action could be fired.
Appellant’s testimony further shows that he was employed by the Kansas City Southern Railway Com pany, working as night-watchman at the roundhouse. In the performance of his duties as a guard at the roundhouse he had a pistol, and that was the pistol with which he shot Billings. He had been carrying it home with him when he was off duty.
Various witnesses testified on behalf of the appellant as to his conduct on the morning of, and prior to, the killing. One witness, Irwin, a justice of the peace, stated that Selman came to his office on that morning about 7:15 and stated the facts to him with reference to garnishments that had been issued on the McKinney and Tobin claims against appellant. Irwin had succeeded McKinley as justice of the peace, and he prepared certain papers for Selman, reciting that no judgment had been rendered by McKinley against Selman on the McKinney claim.
The attorneys of the appellant, with whom he had consulted on the morning of the killing in regard to the claims that Billings had in his hands for collection, testified to the effect that at the time appellant was consulting with them he talked in an ordinary tone of voice and did not show any malice or anger toward Billings. The testimony of other witnesses on behalf of the appellant was to the effect that they hea] d Billings, in the conversation with reference to these claims, make the remarks which appellant testified that he did malee, showing that he was angry with appellant, and that appellant made no reply to the angry remarks of Billings, and did not manifest any anger himself. On the contrary, two of the witnesses stated that he was not mad at all, and one of them stated that he seemed to be in a good humor. There was testimony tending to show that Billings, shortly before the killing, stated that he had a pistol in his drawer that he kept for fellows that got unruly in his office, and he indicated the drawer right by his side in which he said he kept it. There was testimony that the pistol had been seen in this drawer the Satur-da3r before the shooting and the Thursday before the shooting. Witnesses for the State had testified that there was no pistol in the desk drawer in Billing’s’ office.
The above states substantially the material facts which the testimony for the State and the appellant tended to prove. The court instructed the jury on the law of murder in the first and second degree, and also on the law of self-defense. The motion for a new trial contained forty-one assignments of error, but learned counsel insist here upon only three of these.
1. The first ground urged for reversal of the judgment is that the trial court erred in giving instruction No. 25, requested by the State, which is as follows: “You are instructed that declarations of the accused to third persons immediately prior to the alleged shooting are competent evidence to show the motive or state of mind of the defendant, but, in accepting such testimony, you have a right to judge whether the accused was sincere in the avowal of his purpose or merely made such statements in order to provide testimony in his favor in case of need.”
The testimon}^ as to the conduct of the appellant immediately preceding the killing, to the effect that he had expressed no ill-will on that morning against Billings and that he was in a good humor, and that he went to the office of Billings on a peaceful mission, was allowed to go to the jury without objection on the part of the State. The court admitted this evidence on the theory that it was a part of the res gestae. The pertinent inquiry was whether or not appellant’s visits to Billings’ office on the morning of the killing were on the legitimate and peaceful mission of consulting with him about the claim which he had in his hands for collection against the appellant, or whether these visits were to avenge what he conceived to be a wrong done him by Billings in persistently pursuing him by suits and garnishment of his wages for the collection of these claims. The testimony, under the circumstances, was relevant only to prove motive or the absence of motive and appellant’s state of mind at the time of the killing, and the court, properly so limited it. Appellant’s declarations concerning the summons and Avrits of garnishment pertaining to the claims which Billings had in his hands for collection, and his conduct and appearance while discussing these claims with Billings on that morning, and his declarations, conduct and appearance while talking with others preceding the killing, were so closely connected to the killing in time, and apparently so free from any self-serving purpose, that the court properly admitted same as tending to illustrate and explain the motive of appellant-in going to Billings’ office. Cornelius v. State, 12 Ark. 782-805. See also Prewitt v. State, 150 Ark. 279; Sneed v. State, ante p. 65. But, in the light of what happened — the killing of Billings by .appellant, under the circumstances which the testimony of the State tended to prove — it was for the jury at last to determine whether the declarations of appellant, tending to prove that his mission was peaceful, were truthful and his acts sincere, or whether they were only simulated for the purpose of disguising a motive to kill.
The instruction of the court was not an instruction on the weight of the evidence, and it did not invade the province of the jury, but, on the contrary, left the jury to determine, upon the consideration of the testimony, what the real motive of the appellant was in going to the office of Billings. The ruling of the court in granting this prayer for instruction was in harmony with the law as announced by the court in Cornelius v. State, supra.
2. The appellant next contends that the court erred in refusing to give his prayer for instruction numbered “O” as follows: “If you find from the evidence that the defendant shot deceased under the belief that he was about to be assaulted by the deceased, but that he acted too hastily and without due care, and for that reason was not justified in taking the life of the deceased, in the absence of malice, he would at most only be guilty of voluntary manslaughter.”
Learned counsel for appellant in their brief say: “In this instruction the jury were told-that if they should find from the evidence that defendant shot deceased under the belief that he was about to he assaulted by the deceased, hut that he acted too hastily and without due care, and for that reason was not justified in taking the life of the deceased, in the absence of malice he would only he guilty of voluntary manslaughter.” If the language of the prayer for instruction “0” had been as set forth above in the brief of counsel for appellant, then the court should have granted the prayer, and would have erred in not doing so. See Allison v. State, 74 Ark. 444; Collins v. State, 102 Ark. 180; Brandes v. State, 110 Ark. 402; Phares v. State, 155 Ark. 75. But the refused prayer was not in the form set forth in the “brief and argument” of counsel, and, in the form presented, it was not a correct declaration of law. The concluding clause of the instruction, to-wit: “he would at most only be guilty of voluntary manslaughter,” was argumentative in form and incorrect in substance, because it carried the implication that the appellant might he guilty, under the evidence adduced, of a lower grade of homicide than voluntary manslaughter. Whereas, the undisputed testimony shows that, if guilty at all, he could not have been guilty of a less degree of homicide than voluntary manslaughter. The jury, under the evidence, could not have found him guilty of involuntary manslaughter. Although appellant would have been entitled to an instruction correctly declaring the law on voluntary manslaughter as applicable to the facts, if such an instruction had been prayed, yet it was not reversible error for the court to refuse the prayer of appellant on that subject, because such prayer was erroneous. See Allison v. State, 74 Ark. 444; Prewitt v. State, 150 Ark. 279, and cases there cited.
3. The appellant testified that his first experience with Billings was in 1921, when the latter had a claim in favor of Tobin Brothers against the appellant, which claim was reduced to judgment-before oné O. Edington, a justice of tlie peace, and on which, judgment a garnishment was issued; that he had settled this claim. The docket entries of the justice of the peace and writ of garnishment in regard to the Tobin claim were identified and introduced in evidence by the appellant. Among these entries was the following: “9-20-22 Garnishment issued Kansas City Southern Railway Company, returnable Oct. 22, 1922. Oct. 13, 1922, settled in full.” The writ of garnishment introduced by appellant showed that it was based on the Tobin Brothers judgment of the 21st of May, 1921, before 0. Edington, justice of the peace. It stated that the judgment remained unsatisfied, and a writ was issued against the Kansas City Southern Railway Company commanding it to appear and answer on Oct. 2, 1922. The writ showed that it was served on the 20th of September, 1922, by delivering a copy to T. H. Short, agent of the Kansas City Southern Railway Company,' as therein commanded. On cross-examination, the State, over the objection of the appellant, was permitted to introduce a letter purporting to have 'been written b}^ an agent of the Kansas City Southern Railway Company which accompanied the justice docket and the other papers which had been introduced in the cause by appellant. It appeared from this letter that inclosed therein to the justice of the peace was a pay-check of the Kansas City Southern Railway Company to Roy Selman, properly indorsed, to settle the claim of Tobin Brothers against Roy Selman. The appellant objected on the ground that the letter purported to be written by the agent of the Kansas City Southern Railway Company after the death of Billings, and that it was therefore incompetent. The court permitted it to be introduced in confirmation of the indorsement on the judgment, “settled in full,” which was not dated.
Counsel for the appellant contend that the ruling of the court in allowing this letter to be read to the jury was erroneous and prejudicial to appellant, as it tended-lo discredit the testimony of appellant to the effect that lie bad paid the Tobin claim in full in 1921. It was error to permit the introduction of the letter in evidence, but the error 'was one which the appellant invited, and therefore lie is not in an attitude to complain. The docket entries and court writs which appellant was permitted to introduce concerning the Tobin claim were wholly incompetent and irrelevant to the issue of the guilt or innocence of the appellant. It was perhaps permissible for the appellant himself to testify concerning this claim as a part of the history of the transactions which led to the fatal rencounter between himself and Billings, but when appellant introduced docket entries and papers before the justice of the peace concerning that claim, in corroboration of his testimony, he was thus permitted to resort to wholly collateral matters in corroboration of his own testimony. The court should not have allowed this, but, having done so at the instance of the appellant, he was then not in an attitude to object to the testimony which the State introduced of the same character tending to rebut the testimony of the appellant on the collateral matters which he had brought into the record. The appellant cannot complain of error which he himself invited. Beck v. Biggers, 66 Ark. 368; Kan. City So. Ry. Co. v. Belknap, 80 Ark. 587; Mitchell v. Smith, 86 Ark. 486; Tarkinqton v. State, 154 Ark. 365-367.
The judgment is correct, and it is affirmed. | [
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Humphreys, J.
On February 21, 1910, William Brewer was the owner of a 627-acre tract of land in Conway County, Arkansas. He resided with his family upon the land, four hundred acres being under fence, and three hundred acres thereof in cultivation. Five sets of improvements were upon the property. Brewer was a negro of little or no education, but through his own management and industry had accumulated this large tract of land. In carrying on his business he became indebted to A. R. Bowdre & Company in the sum of $2,614.12, as well as to the Bank of Plumerville. The bank took over the indebtedness of A. R. Bowdre & Company, and, in order to secure that and the amount due it, took a mortgage from Brewer for $4,500 on said date, February 1, 1910, covering the entire tract of land. Cn the 4th day of March, 1911, William Brewer' and his wife, Emma, whom he had married after the execution of said mortgage, executed a warranty deed for these lands to the Bank of Plumerville for a recited consideration of $4,000. The main issue involved in this suit is Avhether said warranty deed, absolute upon its face, was in fact a mortgage to secure the balance due, covered by the mortgage given on February 21, 1910. Two other issues, incidental to the main'issue, were presented by the pleadings, the first being whether M. 0. McKindra and Sam M..Yancey are innocent purchasers of certain parts of tlie tract of land, purchased respectively by tliem, and the second being the amount of the indebtedness secured by the deed, if in fact a mortgage. We incorporate herein an excerpt from the narrative of appellant giving a succinct statement of the proceedings and substance of the various pleadings presenting the issues in the case. It is as follows:
“This suit had its origin in the circuit court of Conway County. On January 17,1918, J. R. Yancey and the Bank of Plumerville joined in a suit in unlawful detainer against Alonzo and Elijah Brewer, alleging ownership in Yancey, by purchase from the bank, of the SW14 and the south 2/3 of the SE% of sec. 26, of the lands in dispute, and praying for possession. The Brewers were ousted. They answered denying the allegations of the complaint. This suit was No. 1493. On February 28, 1918, the bank filed an attachment suit in the court of C. E. Millen, a justice of the peace, against Elijah Brewer, to collect certain rents from him for a part of these lands. This cause was appealed to the circuit court, and became cause No. 1507. On October 7, 1918, William Brewer and his sons, Charlie and William Jr., filed in cause No. 1493 an intervention in the nature of a bill of discovery, asking for a disclosure of the rights under which plaintiffs claimed title aiid for a transfer of the cause to equity. On November 21, 1918, the circuit court made an order consolidating the two causes and transferring them to equity, where they became cause No. 1917, which is the case at bar. On December 30, 1919, after certain discoveries, and by permission of the court, the original defendants, Alonzo and Elijah Brewer, joined their father, William, and their two brothers, Charlie and William Jr., in an amended intervention and cross-complaint, alleging ownership of the lands in dispute, together with the remaining portion of the entire 627-acre tract, making M. 0. McKindra, who bad purchased from the bank the BWi/j. of sec. 25, a cross-defendant, praying for a reformation of the jnstru ment of March 4, 1911, and for Yancey and McKindra to be declared purchasers of the parts of these lands claimed by them with notice of the rights of the Brewers. With all these parties properly in court, the cause was heard on August 14, 1920, the instrument of March 4, 1911, was declared to be a mortgage, and Yancey and McKindra were declared to be purchasers of the parts of the lands claimed by them with notice of the rights of the Brewers. On September 11, 1920, this decree was vacated on motion of Sam M. Yancey, who filed an intervention alleging ownership by purchase from J. K. Yancey of the lands described in the original complaint. On September 20, 1920, the decree of August 14th was reentered, reserving to Sam M. Yancey his rights of intervention. On this same date E. H. Coulter and T. M. Williams filed their interplea in the cause, alleging that Coulter had become the owner of the south 2/3 of the SE% of sec. 26, by purchase from William Brewer, and that he had conveyed the same to Williams. On January 6, 1921, on motion of plaintiffs and Sam M. Yancey, the decree of August 14 and September 30 was again vacated. On a rehearing of the cause on November 30, 1921, the court held the instrument of March 4, 1911, to be a deed absolute, and, in keeping with that finding, granted other relief. On that same date a motion was filed to vacate the decree, and, in order to save the rights of the parties over to the ensuing term, the decree was vacated for the purpose of hearing the motion at a later date. An order was made on April 19, 1922, overruling this motion and reentering the decree of November 30, 1921, as of the date of April 19, 1922. From this order and decree the Brewers, Coulter and Williams perfect this appeal.
The trial court did not have occasion to decide either incidental issue. It was admitted that on November 30, 1917, the Bank of Plumerville executed and delivered to J. R. Yancey a deed to 267 acres of said tract, which he conveyed to Sam M. Yancey on December 23, 1919; and that said bank conveyed 160 acres of said tract to M. -C. McKindra on January 28, 1919. After finding that the deed executed by William Brewer and Emma Brewer, on March 4, 1911, was executed and delivered as a deed and not as a mortgage, it follows that Yancey and McKindra were entitled to the lands' conveyed to each by the bank, and that it was unnecessary to state an account between the bank and William Brewer. The court therefore decreed the lands to the Bank of Plumer-ville, Sam M. Yancey, and M. C. McKindra, according* to their several interests as shown by their deeds, and dismissed the suits of appellants for the want of equity.
Appellants contend for a reversal of the decree upon the ground that the testimony shows the deed was given to secure the balance due on the preexisting mortgage indebtedness. Testimony was introduced pro and con as to the capacity of William Brewer to execute the instrument-' in question, and as to whether he was induced to execute it through undue influence. Appellant does not now contend that the evidence is sufficient to show incapacity on the part of William Brewer, and, after reading the testimony, we are convinced that he executed the deed of his own free ■will and without being unduly influenced by the bank’s representative, D. F. Sutton. The testimony does not support the contention of appellant that a fraud was practiced upon William Brewer and his wife, by deception or otherwise, to obtain their signatures to the instrument in question. While of opinion that no fraud was practiced upon William Brewer by Sutton in obtaining the deed,' we are convinced, after carefully reading the testimony, that the instrument was intended by the parties, at the time of its execution, as a mortgage, and not a deed. In arriving at this conclusion we are mindful of the rule that “a conveyance absolute in form is presumed to be a deed, and to overcome the presumption, in the absence of fraud, the evidence must be clear, unequivocal and convincing.” Snell v. White, 132 Ark. 349; Henry v. Henry, 143 Ark, 607. The character of the instrument in cases of this kind is determined by ascertaining whether it was given to secure a debt. If given to secure a debt, the instrument is a mortgage, although a deed absolute on its face. Gates v. McPeace, 106 Ark. 587. In ascertaining the character of the instrument in the instant case, little aid is afforded by the parol testimony of the witnesses introduced by the parties to the action, for the testimony of the witnesses on each side is in sharp conflict. It would extend this opinion to unusual length to set out the testimony of each witness, even in substance. Suffice it to say that the witnesses introduced by appellant testified that the instrument was intended as a mortgage, and that William Brewer remained in possession until ousted therefrom in this litigation, renting' out a large part thereof to tenants, who paid the rent- to the bank on the indebtedness of Brewer, and that he paid the net proceeds of the lands he cultivated to the bank upon his indebtedness; and that the witnesses introduced by ap-pellees testified that William Brewer and all others who occupied the land after the execution of said deed occupied same as tenants of the bank and paid rent to it 'as the exclusive owner thereof. Notwithstanding the conflict in testimony, certain facts are revealed by the record which cannot be reconciled upon any other theory than that the instrument was executed and intended as a security. There was a preexisting mortgage debt at the time the deed was executed. The debt had not increased to an amount equal to or in excess of the value of the land. In fact, according to the face of the two instruments, the mortgage indebtedness had been reduced from $4,500 to $4,000. No urgent necessity appeared for selling the land, especially at a great sacrifice. According to the decided weight of the testimony, the land was worth a great deal more than the consideration expressed in the deed. The deed expressed the correct amount of the existing indebtedness. For more than eleven months after the deed was executed and recorded, the notes of 'William Brewer, evidencing liis indebtedness to the bank, were carried on the books of the bank as bank assets. On December 27, 1911, after the execution of the deed on March 4, 1911, the bank, by its cashier, Sutton, who had procured the deed in question from Brewer, wrote the following letter to him:
“Plumerville, Ark., Dec. 27, 1911.
“William Brewer, Esq., Plumerville, Ark.
“Dear sir: It will soon be time for people to want to begin to make arrangements so as to prepare to farm, and in view of that fact it would be a good idea for you to come down within the next week or so, so we may have an understanding with you about renewing your land debt. If yoh can come soon, kindly do not come on Saturday or Monday, as those are the most busy days we have, and it is generally that we are croweded on those days.
“Yours truly,
“Bank of Plumerville,
“B. F. Sutton.”
At the time the letter was written William Brewer owed no other land debt to the bank except the notes evidencing the mortgage indebtedness, which were carried' upon the books as an asset of the bank, after the execution of the deed in question. Appellee suggests that this letter had reference to a land indebtedness growing out of the execution of a bond for title to 107 acres of land which the bank sold back to Brewer for $1,800. According to the bank’s testimony, the bond for title referred to was not executed until February 14, 1912, some time after the letter was written. A. J. Nesbett, who succeeded Sutton as cashier of the bank in January, 1915, testified that he found a copy of a title bond for 107 acres covering Brewer’s home place, which the bank had executed to William Brewer for $1,800, and that a foreclosure proceeding on the bond was brought and prosecuted to a conclusion in the chancery court of said county against William Brewer. William Brewer denied buying his home place back from the bank, or that a bond was executed to him for same by the bank, or that he executed notes to the bank in the sum of $1,800 to pay for same. He testified that when summons was served upon him in the foreclosure proceding, he and his two sons went to Mr. Nesbett about the matter; that they were disturbed, and Mr. Nesbett told them “to just go ahead, and he would make it all right.” Mr. Nesbett denied making any statement concerning the suit.
We think the offer in the Sutton letter to renew the land debt referred to the mortgage indebtedness and not to the title bond indebtedness, which, according to the bank’s own statement, was not executed for several months after the letter was written. We also think the letter, together with the fact that the mortgage indebtedness was carried on the bank 'books as an asset and not canceled off until Feburary 14, 1912, is proof conclusive that the deed in question was given to secure the mortgage indebtedness.
It was agreed between the parties at the time this cause was submited to the chancellor that he should try and determine the question only of whether the deed of date March 4, 1911, was intended as a deed or mortgage, and, if a mortgage, to fix the amount of the indebtedness due from William Brewer to the Bank of Plumerville. The decree rendered by the chancellor contains the following recital:
“It appears from the pleadings and proofs that the issues to be determined are whether or not the deed executed by William Brewer and Emma Brewer, his wife, on March 4, 1911, and conveying the lands as mentioned above, should be held to have been executed and delivered as a deed, or as a mortgage to secure indebtedness due the Bank of Plumerville; and, if a mortgage, to fix the amount of the indebtedness.” In keeping with this understanding, when appellants filed their original abstract and brief, they did not abstract any evidence relating to the issue of whether M. C. McKindra and Sam M. Yancey were innocent purchasers of certain parts of the. land, purchased by them out of the 627-acre tract in controversy. M. C. McKindra and Sam M. Yancey later filed an abstract and brief upon the issue of whether or not they were innocent purchasers of certain parcels of said tract. In view of the fact that this issue was not tried and determined b3r the chancellor, and perhaps not fully developed, and the further fact that the decree of the trial court must be reversed, ive have concluded to remand the cause in order that the issue as to whether McKindra and Yancey were innocent purchasers may be more fully developed and first determined by the trial court. We also think it more practical for the trial court to state an account, or appoint a master to do so, than to attempt it ourselves in the present state of the record.
The decree of the court is therefore reversed, and the cause is remanded, with directions to the trial court to render'a decree to the effect that the deed in question is, in fact, a mortgage; to determine whether M. C. Mc-Kindra and Sam M: Yancey are innocent purchasers of the particular parcels of land purchased by them out of the 627-acre tract in controversy, and to state an account between William Brewer and the Bank of Plumerville, with permission to the parties to adduce additional testimony, if desired, upon the undecided issues. | [
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McCulloch, C. J.
Appellant, William Azbill, owned a farm in White County, and in the year 1920 he placed appellee, Harry Lewis, in possession as a share-cropper to cultivate and gather crops of cotton, corn and straw-oerries. In May, 1921, just before the strawberries were ready for picking, Azbill instituted an action of unlawful detainer against appellee to recover possession of the farm, and he secured possession under a writ issued in the action. Appellant proceeded to gather the strawberries and to market the same through an association in that locality, known as the McRae Strawberry Association. The crop bf strawberries was sold for a net price of about $1,400, after deducting the cost of gather ing and marketing. Abont that time appellee instituted an action in the chancery court of White County against appellant for an accounting and to recover damages on account of alleged breach of contract with respect to the transactions between the parties. Appellee claimed in that action one-half of the proceeds of the sale of the strawberry crop, and also claimed damages for a large sum, composed of different items. One of the claims was for unpaid labor. That case was transferred to the circuit court, and was consolidated with the other action instituted by appellant against appellee to recover possession of the land.
At this juncture the parties agreed, acting through their respective attorneys, that the McRae Strawberry Association should pay over to appellant one-half of the funds on hand from the proceeds of the crop as his share therein, and that the remainder should be held as appel-lee’s share. Appellant was asserting a claim against ap-pellee on account, amounting to about $600, and was about to cause to be issued a writ of garnishment to sequester the funds belonging to appellee in the hands of the McRae Strawberry Association, and the attorneys for the respective parties agreed that, in lieu of a garnishment issued and served on the association, the funds should be paid over to the clerk of the circuit court, to be held awaiting the determination of appellant’s claim against appellee. The funds, in other words, were agreed to be treated as the property of appellee Lewis, but should be held by the clerk as upon a garnishment, subject to the claim that appellant was making against appellee.
On the trial of the consolidated actions in the circuit court each party asserted their respective claims against the other, and the jury returned a verdict in the following language:
“We, the jury,, find for the landlord, in that we giv.e him the possession of the property. Also for the tenant for the sum of $2 as difference in settlement.”
Thereupon the .court rendered a judgment in favor of appellant for retention of possession of the land, and also rendered judgment in favor of appellee for the sum of two dollars.
Prior to the trial in the circuit court, and while the consolidated cases were pending therein, appellant, through his attorney, agreed that the clerk should release to appellee two portions of the funds, $100 at one time and $250 at another, and it was also agreed that the clerk should pay over to appellant the sum of $301.84, upon the execution by appellant of a bond with security, conditioned that appellant would return the money “unless we prove our claim against the said defendant, Harry Lewis, for the amount above named, and procure judgment against the said Lewis for said amount.” The bond’was made to the clerk “for the use and benefit of Harry Lewis in the sum of $301.84.”
After the judgment was rendered in the circuit court demand was made upon appellant that he return the money to the clerk which .had been paid under the bond aforesaid, but appellant refused to pay, and this action was instituted by appellee against him -and his sureties to recover that amount. The chancery court rendered a decree in favor of appellee for the recovery of this money, and an appeal has been prosecuted to this court.
We are of the opinion that the chancery court was correct in its decree. It is unnecessary to analyze the pleadings and the proof in the action which was tried in the circuit court to determine the effect of the verdict rendered by the jury. There were conflicting contentions at.the trial of the present case as to what issue was involved in that action, but it is shown in the present case, by a preponderance of the testimony, that .the money in the hands of the clerk was conceded to he the property of appellee Lewis as his share of the proceeds of the sale of the strawberry' crop, and that this fund was by agreement turned over to the clerk, not as funds in dispute between the parties, but as funds belonging to appellee, sequestered for the purpose of satisfying any judgment which appellant might recover against ap-pellee on his asserted claim against the latter. Viewing the status of the funds in that light, it is clear that the verdict of the jury in the other case was merely a settlement of the conflicting claims of the parties against each other, and not a settlement of the title to the funds in the hands of the clerk. At any rate, the proof shows that this property in the hands of the clerk was treated as appellant’s property and that it belongs to him as his share of the proceeds of the crop that he cultivated, and, since appellant failed to secure any judgment against ap-pellee for the recovery of money, it necessarily follows that appellee is entitled to a return of the funds. Appellant received the money under an express agreement that he would return the funds unless he secured a judgment, and the chancery court was correct in rendering a decree against him and the sureties on his bond.
Affirmed. | [
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Smith, J.
The widow and heirs of T. J. McGinnis brought this suit to recover the possession of a tract of land from the heirs of Isaac Less. A demurrer to the complaint was sustained, and the plaintiffs appealed, and we reversed the judgment of the court below, and remanded the cause, with directions to overrule the demurrer. McGinnis v. Less, 147 Ark. 211.
We held that the action should be treated as one against the mortgagees of land in possession for an accounting, and that when so treated a cause of action was stated. The complaint alleged that McGinnis departed this life intestate in the j^ear 1898, and that the plaintiffs were his widow and his heirs at law; that on April 16,1898, Isaac Less sold and conveyed to T. J. McGinnis a quarter section of land for $2,500, evidenced by ten notes each for $250, payable one each year on the an•niversary of the notes. The deed reserved a lien on the land and upon the crops grown thereon, and that clause of* the deed was copied in full in the former opinion. The complaint further alleged that McGinnis moved oh to and occupied the land as ids homestead, and that, upon the death of McGinnis, Less took possession of the land and has held it since, and has collected the rents thereon. The prayer of the complaint was for an accounting.
We held that the writing set out in the complaint as a basis of appellant’s title was a deed of conveyance, and not an executory contract to convey, and that, under the ollegations of the complaint, the title passed to McGin-nis upon the delivery of the deed, and upon his death descended to his heirs at law, subject to the widow’s homestead and dower rights, and that, when the grantor took possession for the purpose -of collecting rents in accordance with the stipulation in the deed, he was in the attitude of a mortgagee in possession.
Upon tlie remand of the cause the court sustained a motion to make the complaint more specific, and that was done, and the defendants filed an answer in which they alleged that the contract of sale had been rescinded, and that McGinnis, realizing that he could never pay for the land, had agreed to turn it back to Less, and, pursuant to this agreement, had placed Less in possession. The answer did not allege whether this agreement was in writing or not, and it is now insisted that the court erred in refusing to sustain a demurrer to that paragraph of the answer. Upon the remand of the cause the case was fully developed, and there was a finding and decree in favor of the defendant, from which is this appeal.
The plea of the statute of frauds was raised for the first time on appeal, and is therefore too late to be considered, as one is not required to plead it, and may waive that defense. Skinner v. Fisher, 120 Ark. 91.
It is insisted that the demurrer filed in the cause raised that question. But we do not think so. It is true the question may be raised by demurrer, but only when it appears, from the face of the pleading demurred to, that the contract is oral when it should have been in writing. Izard v. Connecticut Fire Ins. Co., 128 Ark. 433.
As we have'said, the answer in this case did not recite whether the contract of rescission was oral or in writing, and there was no motion to make the e^nwlamt specific in that respect. We think, however, that defense, if pleaded, was not available, for reasons hereinafter stated.
The testimony shows that on October 15, 1895, Less and his wife conveyed the land in litigation to McGinnis and one A. C. Estes for a consideration of $2,500, to be paid in ten years, but this consideration was never paid, and in some manner not explained Less reacquired title, and in 1898 executed the conveyance to McGinnis set out above.
An attempt was made to show that McGinnis impressed the land as his homestead, bnt we think this attempt failed. McGinnis placed his son-in-law, Pickens, in possession, and assisted him in making a crop in 1898, and spent a portion of each week on the farm, but his wife never left her home in town, where she and her husband were living when they bought the land, and Mc-Ginnis spent the week-ends at his home with his wife and his family, and he died in December, 1898, without ever having .abandoned his home in town by moving on the farm.
Pickens testified that McGinnis directed him to at-torn to Less, and that he did so, and it is insisted that this was done pursuant to the provision of the contract giving Less a lien on the crop of each year to secure the payment of purchase money due that year. But McGin-nis was not in default when be died, as no payment of principal fell due until after his death.
We think the testimony establishes the fact that Mc-Ginnis directed Pickens to attorn to Less for the reason that McGinnis had in fact surrendered the possession to Less, and the deed which should have been made to Less was not made because McGinnis died suddenly. Several disinterested witnesses testified that they heard McGinnis say that he found he could not pay for the land and that he had turned it back to Less for that reason, and, in our opinion, the testimony establishes this to be a fact. This agreement to surrender the land and to reconvey it became effective, notwithstanding it should have been evidenced by a deed o.f conveyance when the possession was taken under that agreement. Certainly it formed a point from which the statute of limitations would begin to run. Garretson v. White, 69 Ark. 603; Briggs v. Moore, 128 Ark. 390; Branstetter v. Branstetter, 115 Ark. 154; Pindall v. Trevor, 30 Ark. 249; Pledger v. Garrison, 42 Ark. 246.
There is testimony showing that certain of the plaintiffs have been laboring under the disability of infancy, and an attempt was made to show that Mrs. McGinnis was insane, but, in our opinion, this attempt failed. At any rate, there is but little testimony that she became insane prior to the death of her husband, and, if she was ever insane, she became so many years after his death.
Neither the subsequent insanity of the widow nor the infancy of the heirs would avail to prevent the running of the statute of limitations, because, in the lifetime of the husband and ancestor, Less reentered and took possession of the land under an agreement entitling him to do so. His holding was actual and adverse in the lifetime of McGinnis, and, as the statute of limitations was put in motion in McGinnis ’ lifetime, its running was not arrested by his death, and the widow is now dead, and as this adverse possession is shown to have continued from the fall of 1898 to the institution of this suit in 1919, it necessarily follows that the plaintiffs were barred by the statute of limitations, and the court below properly so found, and dismissed the complaint. Bender v. Bean, 52 Ark. 132; Gibson v. Herriott, 55 Ark. 85.
It is also insisted that the cause of action is barred by laches; but, as we have found that it was barred by limitations, we need not consider whether it is not also harried by laches.
The testimony is by no means undisputed; on the contrary, there are a number of sharp conflicts in it, but we think two facts are clearly established; first, that the land, and that he had turned it back to Less for that second, that McGinnis surrendered the possession to Less, who occupied the land until his' death, and whose heirs have since occupied it continuously and adversely. These facts being established, it follows that the suit is barred b}^ limitations, and the decree of the court below so holding is affirmed. | [
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Hart, J.,
(after stating the facts). The plaintiff and the defendant both claim title at a sale under a decree in the overdue tax proceeding. The defendant deraigns title under the original decree rendered at the November term, 1882, of the Phillips Chancery Court, and the plaintiff deraigns title under what purports to be a decree mmc pro tunc rendered in tbe overdue tax case at the May term, 1883.
It is well settled that, in any case where a judgment or a decree has been actually rendered but not entered on the record, in consequence of an accident or mistake, or the neglect of the clerk, the court has power at a subsequent term to order that the judgment or decree be en- fcered of record nunc pro tunc, provided tlie fact of its rendition is satisfactorily established.
If anything has been omitted from tlie decree which is necessarily or properly a part of it, but failed to be incorporated in it through the negligence or inadvertence of the court or the clerk, then the omission may be supplied by an amendment after the term.
If, on the other hand, the amendment is for the purpose of changing the judgment actually rendered to one which was not rendered, this cannot be done. The power to amend the judgment as entered cannot be used for the purpose of correcting errors or omissions of the court. Such procedure cannot be allowed so as to enable the court to review or reverse its action in respect to what it has already done. Such amendment would not speak the truth, but would speak what should have been done and was not done. Gregory v. Bartlett, 55 Ark. 30; St. L. & N. Ark. Rd. Co. v. Bratton, 93 Ark. 234, and Sloan v. Williams, 118 Ark. 593.
In the case at bar the record shows that the decree rendered at the November term, 1882, in the overdue tax case, was in every respect a complete decree. A sale was had under it, and the predecessors in title of the defendant became the purchasers at the sale. ■ It is not clearly shown what the purpose of the decree rendered at the May term, 1883, of the court in the overdue tax ■ sale was, but it is in no sense a mine pro tunc decree, for, as we have already seen, the former decree was in all respects as complete a decree as the one purporting to be a decree nunc pro twic. Each decree is very lengthy, and we do not deem it necessary to set either one out in extenso. It is sufficient to say that each is a complete decree and covers everything that is essential to be set out in an overdue tax decree. Hence, under the authorities cited above, and many others which might be cited, the chancery court could not correct its original decree b3;r nunc pro tunc decree after the term at which the' first decree had been entered of record had lapsed. After the term was ended the court lost its power over the decree, and under the guise of an amendment had no power to revise the decree or to correct a judicial mistake or any errors or irregularities in the sale under the original decree.
It follows that the court had no authority to render what purports to be the nunc pro tunc decree in the overdue tax case, and consequently the purchasers at the sale under it derived no title whatever.
The plaintiff also claims title because the land in controversy is wild and unimproved, and it and its predecessors in title has paid the taxes on the land for seven 3rears in succession, three of which payments were made after the passage of the act of 'March 18, 1899, which is § 6943 of Crawford & Moses’ Digest.
It is a sufficient answer to this contention to say that the plaintiff can only avail itself of the payment of taxes for the years 1899 to 1903 inclusive, which is only five years. The reason is that the Legislature of 1893 granted the land in controversy to the Laconia Levee District and exempted it from State and county taxes for the term of five years from the passage of the act. The act was approved April 14, 1893. Acts of 1893, p. 308. Moreover, in Robinson v. Indiana, & Ark. Lbr. & Mfg. Co., 128 Ark. 550, it was held that land in the hands of a levee district is exempt from taxation for State and county purposes.
It thus appears from the record that the'title to the land in question was in the Laconia Levee District during a part of the seven years relied upon by the plaintiff to obtain title to the land by the payment of taxes for seven years in succession, and the plaintiff acquired no title by the payment of taxes.
Tt follows that the decree will be affirmed. | [
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Hart, J.
The main question raised by this appeal is whether a county court of this State, which has 'granted a privilege to a person to build a toll 'bridge in the county over a navigable river, hiais also the right to fix the tolls for crossing isaid bridge for the period of' ten years.
The circuit court held that no such power -was vested in the county court, and' to reverse a judgment based upon that holding this appeal has been prosecuted.
Under art. 7, § 28 of the Constitution of 1874, the county courts of this State have exclusive original jurisdiction in all matters relating to county taxes, roads, bridges, ferries, etc. Under this provision of the Constitution the county courts have exclusive jurisdiction of the matter of building bridges over watercourses. The Legislature might authorize the county courts to build such bridges at the public expense, or it might authorize them to grant the privilege to any person or corporation to build a toll bridge in the county over any navigable stream or other watercourse, where .it might be deemed necessary for the public convenience, and too burdensome to be constructed by general taxation. Wright v. Norris, 43 Ark. 193, and Gray v. Duffy, 152 Ark. 291.
A toll bridge is a part of the public highway, the same as a bridge built by general taxation. The only difference is that, instead of being made at the public expense in the first instance, a toll bridge is authorized and laid out by the county court and made at the expense of individuals or corporations in the first instance; and the cost of construction and maintenance is reimbursed by a toll fixed by tbe county court for tbe purpose. Every traveler has tbe same right to us-e .it, paying tbe toll established by law, as be would have to use any other bridge.
Tbe Legislature of 1875 passed an act granting toll-bridge 'and turnpike privileges, which is a part of our statute law today. Crawford & Moses’ Digest, § 10255-10260 inclusive.
Sec. 10255 reads as follows: “The several county courts, through whose counties run any watercourse, lake, bay or swamp which may be too burdensome to bridge and keep in repair by the inhabitants thereof, are hereby fully and exclusively empowered to grant privileges to persons to build toll-bridges over, or turnpikes or causeways along the same, or through any overflowed or wet land, whenever the interest of the county or the traveling public shall, in their discretion, demand such improvements.”
See. 10256 reads as follows: “The county courts shall have a general superintending control over such bridges and turnpikes, and they are hereby required to 'fix the rates of toll for crossing any bridge, causeway or turnpike which may be built under the provisions of this act, and to compel the same to be kept in good repair at all times.”
It is conceded that the right to grant a franchise to build a toll bridge can be.obtained only from the counts court, and that it can be sold or transferred; and such is 'the law. That is to say, the legal mode of granting a franchise to construct a toll bridge is by a contract between the county court and the grantee of the franchise. It is also conceeded that, under the statute, the county court is required to fix the rates of toll, but it is contended that the power thus conferred is a continuing •' one which the county courts may be required to exercise from year to year, and that it cannot fix the toll for ten years in advance.
It may be stated in the outset that it is a rule of construction that existing statutes become a part of contracts like the kind under consideration. Pocahontas v. Central P. & L. Co., 152 Ark. 276, and Camden v. Ark. Light & Power Co., 145 Ark. 205. Hence this court has held that municipal corporations have the continuing power to lower rates of any water company, gas, or electric light plant. Lonoke v. Bransford, 141 Ark. 18, and Pocahontas v. Central Power & Light Co., 152 Ark 276, and eases cited. The reason is that § 5445 of Kirby’s Digest, which was in force at the time of the granting of the franchise to the public utilities in the cases cited, authorized cities and towns, upon complaint filed, to examine the rates charged consumers and determine whether they are reasonable, .and, if found unreasonable, makes it their duty to fix ¡such prices as might be deemed to be a reasonable -charge. The statute is read into every contract to which it relates made since its enactment. Therefore it becomes -our duty to construe § 10256 of the Digest to determine whether or not it was intended that the county court should have a continuing power to fix the rates of toll.
There is no hard and fast rule on the question, and the truth is that in each case the meaning of a statute must be .sought by -a study of its general ¡scope and tenor and the consideration ¡of its purposes; for it cannot be gathered from the consideration of one- word, or even many words. Elloitt on Boads and Streets, 3 ed., §51. i
It has been well said that half of the English language is interpreted by the context. As we have -already seen,' the only reason for granting a franchise to build a toll bridge is that the cost of construction is too burdensome to be borne by general taxation. B'ealizing that toll bridges ¡are p-arts of the public highways- constructed to meet the public -convenience, -the Legislature provided'that the -county courts should have a general superintending control over them. This i-s- for the pur pose of seeing that they are kept in good repair and are free from obstruction, to the end that the public may travel over them in the same manner that a bridge built by the county is traveled. The same section also provides that the county courts are required to fix the rates of toll for crossing such bridges. This is done for the very purpose of enabling the person or corporation who has obtained the franchise for building such bridges to charge a toll for recompense for the cost of construction.
It is manifest that, if the county court could not fix the toll for a reasonable number of years in the future, no reasonable contract could be made for the construction of such a bridge. If the Legislature had. intended that the county courts could not fix the tolls for a reasonably definite time for the future, it would have limited the right by appropriate language, as was done in other cases. To illustrate: § 10278 provides that the county judge shall regulate the tolls to be charged by turnpike companies upon a scale equitable to the corporation' obtaining the franchise and the public. ' This could prevent a lowering of the tolls to the point of confiscating the property of the corporation.
This view of the turnpike statute, while not directly before the court for construction, is evidently the one taken by this court in the case of Ratcliffe v. Pulaski Turnpike Co., 69 Ark. 264. In that case it was recognized that the county court, in consideration of the construction of the turnpike and keeping the same in repair, granted the corporation constructing it the exclusive privilege of collecting the stipulated' toll. ' The court recognized that the privilege g*ranted was exclusive, and was for a valuable consideration'.' The rule adopted was that, where the privileges granted are exclusive, and are for a valuable consideration, the'matter assumes the nature of a contract between the county court and the individual g’ranfee, the obligation of which cannot be impaired. The county court was declared 'to be the agency of the State in the matter.
Again § 4701 of -the Digest provides for the regulation of tolls on ferries. The language used is that the tolls shall at 'all times he subject to regulation by the county court. The reason is that annual franchises are granted in the case of ferries, and no injustice could he done by the -county courts having power at all times to regulate the rates.
Therefore we have concluded' that any apparent ambiguity in the statute is made certain when interpreted according to the evident purposes of the act, and are of the opinion that the act conferred upon the county court the power not only to grant the franchise, but to fix the toll for the first ten yeans of the life of the franchise. There is nothing in the record to show that the fixing of the tolls for this period of time would be unreasonable or arbitrary.
It is next contended that the privilege granted is exclusive, iand that the county court, after conferring it, could not grant a ferry license to operate a ferry within a mile of the bridge. We think this construction is borne out by § 10258. This section provides that no county court, after conferring the privileges of this act upon any person, shall have power to confer same, or like privileges, upon any person to the injury of him upon whom such privileges were first conferred.. This principle was recognized in Ratcliffe v. Pulaski Turnpike Co., 69 Ark. 264, where it was held that the county court, after having granted the exclusive privilege for the construction of a turnpike, cannot, during the life of the franchise, open a parallel public road which would divert the travel from the pike. Bridges and ferries are designed for the same purpose. That is to say, they are used for the purpose of crossing navigable streams or •other watercourses where there is a public road. They are primarily for the convenience and use of the traveling public, and no useful purpose could be served by adopting both as the means of crossing a river at the same point. The county court is the agency of the State in the matter, and has the power to grant an exclusive franchise for the construction of a toll bridge, and this in itself would prevent the granting of such franchise to another bridge company or to a ferry company.
It follows that the judgment will be reversed, and the cause will be remanded for further proceedings according to law and not inconsistent with 'this opinion. | [
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Wood, J.
Gage & Spencer, a partnership (hereafter called appellants) were contractors. They were nonresidents. They entered into a contract with Road Improvement District No. 3 of Newton County, Arkansas (¡hereafter called appellee), to do work on its read. Appellants instituted this action against the appellee for damages and for failure to pay for work done under the contract. The appellee filed a motion to require appellants to make bond for costs, and also a cross-complaint setting up the particulars in which it alleged that the appellants bad violated their 'contract, and made the National Surety Company (hereafter called surety company) a defendant. Appellee alleged that the surety company was on appellants’ bond for the faithful performance of their contract. The surety company, through its attorneys, entered its appearance. The appellants failed to file their bond, and their cause of action was dismissed. Sec. 1845, Crawford & Moses’ Digest. It was -alleged in the cross-complaint that the appellee had been damaged by failure cf appellants to perform their contract in certain particulars, which are specified, in the sum of $2,999.99, for which it prayed judgment against the appellants and the surety company.
The appellants -and the surety company, in their answer to the cross-complaint, denied all the allegations of the cross-complaint, and denied liability. The cause was submitted upon these issues and the testimony adduced at the trial, and the jury returned a verdict in favor of the appellee against the appellants for the amount prayed in the cross-complaint, and against the surety company in the sum of $1,778.77, rnom Which judgment the appellants and the surety company appeal.
The contract between the appellants and the appellee was introduced in evidence. It provided that the appellants should build a road for the appellee according to the plans and specifications, which were made a part of the contract, and the appellee was to pay for the work at the prices 'Stipulated, The appellants were to 'begin work under the contract on the 21st of June and to complete the work within 156 working days after they began. If they failed to complete the work in the time specified they were to pay $15 each day delayed, which sum was to be liquidated damages 'and deducted from the final amount due the appellants under the contract. The bond bound the surety company, in case of the failure of appellants to perform their contract, to indemnify and -save harmless the appellee against any loss or damage of whatever kind and character, arising or occasioned by deed of negligence of the appellants, their agents, servants and employees, in the prosecution of the work, or by reason of improper safeguards or incomplete protection to the work, or by reason of failure to pay all bills for material and labor which entered into the construction of the work or used in the course of the performance of the work, and by reason of a failure to complete the work within the time specified.
The specifications; made a part of the contract, contained the following provisions: “The engineer shall have full supervision over the entire work, and his decision as to quality of material, construction and rate of progress of said work and the meaning of all drawings land specifications shall be final and conclusive. He shall determine the amount and quantity of work of the several kinds performed, materials! furnished which are to be paid for under the contract. In case any question shall arise (his decision) shall be a condition precedent to the right of the contractor to receive any money due under the contract. All 'orders and instructions to the contractor shall be given by the. engineer.” And the further provision that “the final estimate of the engineer should take the place of all prior certificates or estimates upon which payments had been made.” The final estimate of the engineer showed that the district was indebted to the appellants in the total sum of $20,821.37, less previous estimates of $17,637.49, leaving a balance due appellants of $3,183.88.
The appellants, after setting forth the above as their abstract of the record, further state: “Neither wifi we abstract the evidence in regard to the fraud and collusion charged and attempted to be proved. The only suspicious 'circumstance shown in that instance is that Stanley, the engineer in charge of the work, While he was engaged as such engineer, also was hired to the contractors to do certain work for them.”
The appellee has abstracted the testimony of E. D. Alexander. He testified that his company was a corporation, and was employed as engineer of the appellee to superintend the building of the road. He employed 0. A. Stanley as local engineer to lay out the work according to the plans given him. Witness was never called on to make a final estimate under the contract with the appellants, but did of the road he worked. He had some sort of report from Stanley. He did not make an estimate from this report — checked them up, but they did not balance. There was a discrepancy, and then if was that Eoberts and witness came and calculated it on the ground. Thev found matters that caused witness to come himself. In trying to verify, witness took numerous observations of the road, and it did not show that Stanley was making too large an allowance to Gage & Soeneer under the contract. Witness found places where the road was not over eleven feet wide. The contract called for the road to he sixteen feet wide. Stanley had no right to make a final estimate. Witness’ company did that. The defect in the road as left by the contractors was deficiency in ditches and points of narrow width that were not up to 'specifications. It had very little value-r-could have been constructed rea sonably for from $2,500 to $3,000 per mile. Witness was on the job while Gage & Spencer were at work on it very seldom — one timé, possibly twice, not to exceed that. Witness thought that he was1 there only one time, and ■spent probably half <a day. He had nothing but a tapeline. Witness did not find Stanley’s work generally satisfactory. Stanley had no right to work for Gage & Spencer. Witness did not authorize it — would not have authorized him or any other man to do that.
Witness Cantrell testified that he was a graduate in engineering of the University of Arkansas; that the contractors had not removed the dirt and rock claimed, and under the contract they had been greatly overpaid.
W. M. Moore testified that he was one of the commissioners of the appellee; that the board had overpaid the appellants; that it had paid them $20,000, 'and they should have been paid for actual work performed under the contract $13,000.
Gage testified that before they quit Stanley was in their employ. - He worked for us while he had employment from the other side. Witness took his orders from Stanley absolutely. Stanley did not take orders from witness.
Stanley testified that lie acted as foreman in the employ of Gage & Spencer in their absence, and sometimes when they were present. He got $5 a day; his boy got $3 a day and board. Gage & Spencer fed witness’ horse. His brother-in-law got thirty cents an hour, and they fed his horse. The appellee paid witness $125 a month and expenses when he was away from headquarters. Witness was to look after the construction of the road — to give appellee, his time and ability. He had accepted employment from the appellee and had been working for the other fellow. Witness never told the commissioners of the district of his employment by Gage & Spencer. The inference of his language to Moore was that he was not in the employ of Gage & Spencer and would not stand under that accusation.
Spencer 'testified tliatt Stanley got an automobile from him. If be said tbat be did not, be was a liar. Tbat was a private transaction between Stanley and witness. Witness sold it to Stanley for casb.
In tbe erosis-complaint filed by tbe appellee against tbe appellants it is, among other things, alleged: “They (appellants) conspired and entered corruptly a conspiracy with O. A. Stanley, then and there employed by B. D. Alexander Engineering Company, by which they undertook to and did claim tbat they bad moved a large number of cubic yards of dirt and broken rock, and claimed tbe same to be solid rook. By this conspiracy and fraud they did succeed in securing from plaintiff in cross-complaint (appellee) vast sums of money, tbe amount of which is known to them and unknown to this plaintiff” (appellee), etc.
The appellants invoke the doctrine of our cases to tbe effect tbat, where tbe parties to a building contract agree tbat in disputes between them concerning tbe provisions of tbe contract or tbe performance thereof the decision of tbe engineer or of tbe architect shall be final' and conclusive, tbe decision of tbe engineer or architect under such contract is binding upon the parties to it, and such decision cannot be challenged except upon proof of fraud, or such gross mistake as necessarily implies bad faith on tbe part of tbe engineer. Carlile v. Corrigan, 83 Ark. 140; Boston Store v. Schleuter, 88 Ark. 213. But tbe doctrine of these oases cannot avail the appellants, for the reason tbat they have not abstracted the pleadings, tbe testimony, or the instructions bearing upon the issue of fraud and gross mistake upon the part of tbe engineer. Tbe appellants content themselves on this issue by saying: “We will not abstract the-evidence in regard to tbe fraud and collusion charged and attempted to be proved.” And again: “There is no allegation of fraud on the part of Alexander, tbe chief engineer, who made tbe final estimates m person. The only evidence of mistake is the testimony of other engineer's and witnesses that t-lie work could have been done for less. Tbis, as quoted above, is not sufficient to establish, fraud or gross mistake.”
But tbe appellee, as we have seen, does charge that the appellants ‘ ‘corruptly entered into a conspiracy with O. A. Stanley, then and there employed by R. D. Alex ander Engineering Company, by which they defrauded the appellee of vast sums of money,” etc. And the appellee, in its abstract, sets forth some testimony tending to prove that Stanley, the local engineer, was employed by the R. D. Alexander Engineering Company, and that while so employed he also accepted employment from appellants; hence that, through his fraud or gross mistake, the appellee had paid out sums largely in excess of what they 'Should have oaid under the contract. Any fraud or gross mistake of Staule}*- was the fraud or gross mistake of the chief engineer who employed him, and the 'appellee therefore was not bound by the estimate made by Stanley or the engineering company predicated upon any repoohs made by Stanley, that might have been the result of fraud or gross mistake on his part. The record as abstracted by the appellee is sufficient to show that there was, at least, an issue for the jury as to whether or not the appellants had been overpaid in the sum claimed by the appellee through the fraud or giros® mistake of the engineering company, whose decision, under the contract, was made final and conclusive.
In the absence of any abstract of the testimony or the instructions upon that issue by the appellants, we must presume that the issue was correctly submitted by the trial court, and that there was testimony to sustain the verdict. The judgment therefore against the appellant must be affirmed.
But, as to the surety company, the case is different. It is only liable for a breach of the conditions of its bond. After a careful scrutiny of the provisions of the bond, we find that it does not bind the surety company to refund to the appellee any money it may have overpaid to the appellants by reason of fraud or gross mistake of the engineer. It must be remembered that this is an action by tire appellee against the appellants for money which the appellee alleges had been overpaid to the appellants through the fraud or gross mistake of the engineer. The bond contains no condition which, upon a breach thereof, would make the surety company liable to appellee for money it had overpaid appellants. The judgment therefore against the surety company is erroneous, and same will be reversed, and the cause dismissed as to it. As to the appellants, the judgment is affirmed. . . | [
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Smith, J.
This suit was brought to foreclose a deed of trust, and the appeal is from a decree ordering its foreclosure.
The complaint alleged that on February 14, 1916, Calvin Snider executed a note due October 1, 1916, to the order of J. H. Askew, and, to secure its payment, also executed on the same day a deed of trust conveying an eighty-acre tract of land to P. H. Alsobrooks as trustee for Askew. Snider died intestate May 14, 1916, and his heirs are the defendants to this suit. A -credit of $219.82 of date February 15, 1919, was indorsed on the note by Askew, and on the same date Askew assigned the note and deed of trust to Charles Clark, who, in turn, assigned the note and deed of trust on February 14, 1920, to B. D. Dennis, appellee, the plaintiff in the foreclosure.
Subsequent to the recording of said deed of trust, and prior to the assignment thereof to Clark, Askew, on February 14, 1919, under the power of substitution contained in said deed -of trust, by indorsement on the margin of the record thereof, appointed W. H. Bussell as substituted trustee in lieu of Alsobrooks.
Defendants demurred to tbe complaint on the ground that there was a defect of parties, in that the trustee was not a party thereto. The demurrer was overruled, and exceptions saved. On January 23, 1922, plaintiff amended the complaint and made Alsobrooks a party plaintiff. On April 28, 1922, defendants again demurred to the complaint on the ground that Russell, the substituted trustee, was a necessary party to the action. This demurrer was overruled, the court holding that the substituted trustee was not a necessary party.
It is now insisted that the decree of the court below should he reversed for the failure to sustain the demurrers. There was testimony challenging the credit indorsed on the note under date of February 15, 1919, it being the insistence of the defendants that no such payment was ever made, and that the note was barred by the statute of limitations. The court found the payment had been made, and allowed credit therefor; but we do not review this testimony, as, in our opinion, the debt was not barred, whether that payment was ever made or not.
It is true that the trustee was not originally made a party, and, as he is a necessary party in a proceeding of this character, the original demurrer should have been sustained, but, before the rendition of the decree, that error was cured by making Alsobrooks a party.
It is insisted that Alsobrooks was not made a party until the bar of the statute had fallen, and that the cause of action was therefore barred. It is true that full five years expired after the maturity of the note before the trustee was made a party, but this did not bar the cause of action, for the reason that before the bar of the statute had fallen suit liad been begun by the owner of the debt secured — the real party in interest; and before the rendition of the decree the trustee to whom the title had been conveyed was made a party. The party who had the right to foreclose was the plaintiff, and lie commenced the action before the statute of limitations had run, and the heirs of the mortgagor were the defendants.
It is unimportant that the substituted trustee was never made a party. The substituted trustee was not a necessary party. By the act of substitution he had merely been clothed with- the power which the deed of trust authorized the beneficiary to confer. The title was conveyed to Alsobrooks, as was also the power to sell. By the substitution which the deed of trust authorized the beneficiary to make, this power to sell was transferred from Alsobrooks to Russell, but the title remained in Alsobrooks, and he was made a party before the rendition of the decree.
We conclude therefore that the proper and necessary parties to foreclose the deed of trust were before the court, and that decree is affirmed. | [
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WAYMOND M. BROWN, Judge
| Appellant appeals from the circuit court’s September 28, 2015 order. On ap peal, appellant argues that the circuit court erred in (1) imputing income of $2,500 to her bank account on the entry date of the divorce decree; (2) granting appellee’s motion to reduce child support; (3) allowing a reduction of income for child support purposes; (4) its ruling refusing to order appellee to remove a video camera from the room on the parties’ minor child, G.L.B; and (5) denying appellant’s motion that appellee’s tax refunds be considered income for purposes of child support. We affirmed in part and reverse in part.
I. Facts
2A divorce decree was entered on February 8, 2013, granting appellant a divorce from appellee pursuant to Arkansas Code Annotated section 9-12-401(b)(4). In pertinent part, appellee was ordered to pay child support in the amount of $357 biweekly in addition to 15% of any additional net bonuses from his job and 15% of any additional net farm income over and above the periodic support obligation. He was to remit any additional support from net bonuses within five days of receipt and from farm income within ten days of receipt. Appellee was ordered to continue to provide and maintain the current health insurance for G.L.B.
Appellant filed a verified motion for contempt on September 20, 2013. Appellant then filed a motion to modify the divorce decree on October 10, 2013, seeking payment of appellee’s child support obligation by wage withholding. Appellee responded to appellant’s motion to modify the divorce decree on October 17, 2013, and did not object to a wage-assignment order. Appel-lee also responded to appellant’s motion for contempt on October 17, 2013.
Appellant filed a motion to modify appel-lee’s child support obligation on January 2, 2014, asserting a material change in circumstances “in that there exist[ed] an inconsistency between the current child support and the amount of support which results from the application of the family support chart to [appellee’s] net income after allowable withholdings are made through his regular take-home pay as well as his bonuses.” She | .^alleged that appellee was “manipulating” the amount of his net biweekly take home pay by claiming zero dependents and receiving monies in the form of a tax refund that should be going toward increased child support. Appellee responded to appellant’s motion to modify child support, denying all allegations, on January 9, 2014.
Appellant then submitted an entry of appearance as her own co-counsel on May 15, 2014. The circuit judge ultimately re-cused himself from the case.
Appellee then filed a motion to reduce child support on June 2, 2014, alleging a material change in circumstances that warranted a reduction of his child support obligation. He sought retroactive application of reduced child support to the date of the motion plus reimbursement of any “overpaid amounts” while awaiting a hearing on the matter. By order entered on June 6, 2014, our supreme court assigned a new judge to the case.
Appellant responded to appellee’s motion for reduced child support on June 9, 2014, arguing that appellee’s child support obligation should not be reduced because he voluntarily left his job and therefore, his voluntary actions did not constitute a material change in circumstances.
A number of other motions were filed between the parties including multiple motions for contempt by appellant. All motions were heard in a hearing held on September 22 and 23, 2014. Sticking mainly to information not already covered in the pleadings, Lappellant testified that ap-pellee allowed the insurance for the child to lapse before he left his employment for Walmart. She testified that appellee told her the insurance was not valid as of May 9, 2014, and that the child did not have insurance again until June 1, 2014. Accordingly, she had had to pay a couple of medical bills out-of-pocket that she wanted to be reimbursed for.
Appellee testified that he left his employment with Walmart after 28 years because he “noticed over the last probably seven months that [he] was being harassed.” He ultimately was given the option to “step down to be an assistant manager” with a “cap” pay of $45,000 per year or resign. The bonus structure was different for assistant managers getting $2,000 a year, “if they get that.” He chose to resign and his last day was May 9, 2014. He bought an outdoors, guns, and ammunition business in Kennett, Missouri, taking over operations on May 31, 2014. He was the only employee of the business at the time of the hearing. He was not “currently drawing” income from the business; he was “living off of [his] wife’s income” and “[his] cashed out retirement.” He had numerous debts including a loan for inventory in his store and monthly payments to the previous owner of the business for the purchase of the business.
Appellee had collected “about $41,000[,]” including taxes, from June 1, 2014, through September 17, 2014, “before [his] overhead was considered.” With an income of 15$45,000, in addition to $8,400 that his wife was paying for insurance, he calculated that his net income was approximately $1,908.00 per month, which would require a child support payment of $419 per month according to the child support chart. With an income of $60,000 plus the amount paid for insurance, his child support payment should be $487 per month. Appellee was able to add G.L.B. to his wife’s insurance without additional cost.
At appellant’s request, appellee read a couple of articles, one in which he was quoted as stating that he left Walmart “primarily because of the quality of life he was giving up” and because “it was time to do something else[,]” and another in which it stated that he took over his new business from his wife’s grandfather and that “[b]usiness has really picked up[.]” He admitted that he could have found another retail job, but had not applied for any other options of employment. He bought the business because it allowed him to stay in the area. A “very rough ballpark” of his salary the year before was $85,000, though he might have been off and it might have been around $100,000.
Appellee admitted having a camera in G.L.B.’s room and testified that he thought it was “appropriate to have a camera in a little girl’s room.” He noted that he had a camera in every room in the house since a break-in, though her room was “untouched” during the break-in, and that the camera was in G.L.B.’s room for “[his] purpose.” He did not have an objection to taking the camera out of G.LJB.’s room and would take it out if the child wanted him to; she never told him that she liked or disliked having the camera in her room.
The circuit court entered its order on September 23, 2015. Therein, in pertinent part, it granted appellee’s motion to reduce child support and made the award retroactive to June 1, 2014, awarding child support of $542 per month based on an estimated income |,;Of $60,000 per year; imputed $2,500 to the account balance in her bank account on the entry date of the divorce decree; made half of the $700 appellee’s wife spent on insurance attributable to G.L.B., thereby allowing appellee an annual deduction of $4,200 for payment of G.L.B.’s health insurance; ordered that the camera in G.L.B.’s room was not required to be removed, but must be nonoperational when G.L.B. was in appellee’s care during his visitation; and denied appellant’s motion to have appellee’s tax refunds considered income for child support purposes. This timely appeal followed.
II. Standard of Review
We review traditional cases of equity de novo on the record. While we will not reverse factual findings by the trial court unless they are clearly erroneous, a trial court’s conclusion of law is given no deference on appeal.
III. Imputation of $2,500 Income to Appellant
Appellant’s first argument on appeal is that the circuit court erred in imputing income of $2,500 to her bank account on the entry date of the divorce decree. The statutory authority for a circuit court’s division of property upon divorce is set forth in Arkansas Code |7Annotated section 9-12-315. Arkansas Code Annotated section 9-12-315(a) provides that “[a]ll marital property shall be distributed one-half to each party unless the court finds such a division to be inequitable.” We will not substitute our judgment on appeal as to the exact interest each party should have but will only decide whether the order is clearly wrong.
The overriding purpose of the property-division statute is to enable the court to make a division of property that is fair and equitable under the circumstances. With respect to the division of property in a divorce case, we review the circuit court’s findings of fact and affirm them unless they are clearly erroneous or against the preponderance of the evi- dence. A circuit court’s finding of fact is clearly erroneous when, although there is evidence to support it, the reviewing court is left with the definite and firm conviction that a mistake has been committed. In reviewing a circuit court’s findings, we defer to the circuit judge’s superior position to determine the credibility of witnesses and the weight to be accorded to their testimony.
|8In the circuit court’s order imputing $2,500 income to her bank account on the entry date of the divorce decree, it stated:
With respect to the division of the parties’ three (3) bank accounts, the Court believes that Judge Laser gave notice to both parties that if money was in the accounts to get it out, and the Court states that there was nothing which prevented the Defendant from reducing the balance in her checking account by payment of bills between the time of the Court’s opinion on February 1, 2013 and the entry of the Divorce Decree on February 8, 2013. However, the Court finds that the Defendant’s act of depositing $1,000 and then $1,500 into the account following the entry of the decree was evasive and therefore imputes the account balance on the entry of the Decree to be $2,500.00.
At the time of the divorce decree, there was $127.71 in the account. There was no evidence or assertions that the money appellant spent from the account was not used for payment of bills. The evidence before the circuit court was simply that appellant took money from the account prior to the divorce decree, as was permitted. Because she was permitted to remove money from the account prior to the entry of the divorce decree, any money appellant deposited into the account following the entry of the decree could not be evasive and was irrelevant. Accordingly, the circuit court clearly erred. We therefore reverse on this point and order division of the $127.71 that was in the account on the entry date of the divorce decree.
IV. Child Support Reduction
Appellant’s second argument on appeal is that the circuit court erred in granting appellee’s motion to reduce child support. Appellee requested modification of his child ^support because he left his job as an employee at Walmart to purchase and run a guns and ammunition store. As a rule, when the amount of child support is at issue, we will not reverse the circuit court absent an abuse of discretion, but we give a trial court’s conclusions of law no deference on appeal.
It is axiomatic that a change in circumstances must be shown before a court can modify an order for child support. In addition, the party seeking modification has the burden of showing a change in circumstances. In determining whether there has been a change in cir cumstances warranting adjustment in support, the court should consider such matters as a change in the income and financial conditions of the parties, the financial conditions of the parties and families, and the child-support chart. The supreme court has made it clear that a finding that a material change in circumstances has occurred is subject to a clearly erroneous standard of review. The question of whether there has been a material change in circumstances is governed by Arkansas Code Annotated section 9—14—107(a)(1), which provides as follows:
A change in gross income of the payor in an amount equal to or more than twenty percent (20%) or more than one hundred dollars ($100) per month shall constitute a Immaterial change of circumstances sufficient to petition the court for modification of child support according to the family support chart after appropriate deductions.
In determining an appropriate amount of child support, courts are to refer to the family support chart contained in our Administrative Order Number 10, which provides a means of calculating child support based on the payor’s net income. Pursuant to Administrative Order No. 10(III)(c), for self-employed payors, the circuit court should first consider the pay- or’s tax returns. If the circuit court determines that the tax returns are unreliable, then it shall make specific findings explaining the basis of its determination and shall then proceed using the net-worth method. Where the trial court relies on the tax record, there is no need for it to consider the net-worth approach.
Appellant relies on Grady v. Grady for the holdings that it is appropriate to order child support based on a party’s earning capacity rather than on actual earnings; that while there is no specific provision identifying “earning capacity” as an element to be considered when ordering child support, it is a recognized factor under our statutes; that a court may |nin proper circumstances impute an income to a spouse according to what could be earned by the use of his or her best efforts to gain employment suitable to his or her capabilities; and that a person’s decision to establish them own business or to voluntarily assume new financial burdens cannot take unquestioned precedence over the duty owed to a dependent family. While all true statements, Grady and this case are distinguishable on the facts.
In Grady, Dale Grady was a licensed attorney, in good health, with the capability of earning income to pay $600 per month for child support, who left his employment with the State to become a solo practitioner without explanation beyond statements that he and Norma Grady were having serious marital problems at the time he resigned from his job. The circuit court had awarded child support based on his income before becoming a solo practitioner rather than based on the $81 per week he was earning at the time of the divorce. There, our supreme court remanded the matter to permit the record to be enlarged on the issue of whether his reasons for leaving gainful employment were proper and not to evade his responsibilities. Grady was distinguished in Grable v. Grable.
hiJn Grable, where Leslie Ann Grable made the same voluntary-change-in-employment argument, our supreme court noted that in 'Grady, it had also “cautioned that a trial court’s decision on whether to impute income must be based on the facts and circumstances of each case because situations exist where income reductions are reasonable and justifiable.” In Grable, James Grable left his- employment, according to his testimony alone, because the company was facing bankruptcy; and obtained new employment which was substantially similar, but averaged only $850 to $600 per week. The circuit court had granted James’ petition for a reduction of his child support obligation and reduced his obligation from $870 per week:to $220 per week plus $30 per week toward arrear-ages. Our supreme court noted that the circuit court reduced James’s child support “[biased upon [James’s] testimony concerning his weekly income at his current place of employment” and affirmed the circuit court’s decision stating that it could not find' an abuse of discretion based on the circuit court’s “explicit explanation in this case regarding his perception of both the law and the facts necessitating modification of appellee’s support obligation^]”
In the case before us, the facts regarding appellant’s earning capacity, like in Grable, came from appellee alone. He testified that he left his job at Walmart because he was being harassed and that he was given the option to resign or be demoted to a lower position paying 11S$45,000 per year when he had been making between $85,000 and $100,000 per year when bonuses were included.
The circuit court stated from the bench that it was accepting “$60,000 as the imputed income and that’s based not just on the fact of the materials he submitted but also his testimony of what an Assistant Manager [sic] at $45,000.” It specifically found that it did not “consider [appellee’s voluntary resignation] the same as that he just blew it off.” It then stated in its order that appellee would have made $45,000 had he remained at Walmart. The circuit court obviously found appellee’s testimony regarding why he left and the amount he would have made had he stayed at Wal-mart to be credible. In reviewing a circuit court’s findings, we give due deference to that court’s superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony.
The circuit court stated from the bench that because appellee no longer worked at Walmart, it did not believe the last couple of years of tax returns would be very useful—therefore unreliable—in determining the proper child support obligation under these facts. It specifically stated in its order that the prior owner, according to documentation attached to appellee’s affidavit of means “was netting $60,000 after a payment of a $12,000 salary to himself.” However, it noted in its order that higher income might be imputed if looking at appellee’s lifestyle. Finally, it stated that the income basis for appellee’s child support obligation was just an estimate, noting that setting support in cases where parties are self-employed is difficult and that it was “particularly difficult to know here since he’s just beginning.”
In order to reverse a circuit’s modification of child support, this court must find an abuse of discretion. An abuse of discretion occurs when discretion is applied thoughtlessly, without due consideration, or improvidently. By accepting $60,000 as appellee’s imputed income, the circuit court found a material change in circumstances supporting a reduction of appellee’s child support obligation. A find-; ing that a material change in circumstances has occurred is subject to a clearly-erroneous standard of review.
Appellant is essentially arguing that since appellee voluntarily left his job, his child support should not be modified. Section 11(b) of Administrative Order No. 10 states “If earnings are reduced as a matter of choice and not for reasonable cause, the court may attribute income to a payor up to his or her earning capacity, including consideration of the payor’s lifestyle.” There is no rule that voluntarily leaving a job cannot be a basis for a material change of circumstances to support a reduction of one’s child support obligation; such a determination is fact- and case-specific. Better stated, voluntarily leaving a job may be a basis for a finding of a material change in circumstances as long as there is a reasonable cause for the departure. It is clear that the circuit court found appellee to be credible in the reasons he gave for leaving his job with Wal-mart and found the same to be reasonable cause. hfA plain reading of the circuit court’s order, in conjunction with its ruling from the bench, prevents this court from finding that the circuit court clearly erred in finding a material change in circumstances or abused its discretion in modifying appellee’s child support obligation.
V. HealtU-Insumnce Deduction
Appellant’s third argument on appeal is that the circuit court erred in allowing a reduction of income for child support purposes based on its practice of splitting the cost of the health insurance premium between appellee and G.L.B. when there was no additional cost to appellee to add G.L.B. Section (V)(a)(10) of Administrative Order No. 10 lists insurance as a relevant factor in determining appropriate amounts of child support. Section (V)(b)(l) of Administrative Order No, 10 lists the procurement of health insurance for the child’s benefit as an additional factor that may warrant an adjustment to the child support obligation. Section (III)(g) of Administrative Order No. 10 defines the cost of dependent coverage as “the difference between self- only and self with dependents or family coverage or the eost of adding the child(ren) to existing coverage.”
In In re Changes to Arkansas Rules of Civil Procedure, which appellant relies on for the finding that local rules have been abolished, our supreme court stated
It is not our intention to subvert the power of the trial courts to preside as they see fit within the universal procedural rules we have established. We presume there will be ⅛ need for trial judges to publish administrative orders which will attend to necessary “housekeeping” matters, such as the time and place court shall commence, the duties of the bailiff and the reporter and so on. It is, however, our intention that we will no longer sanction the promulgation by the trial courts of orders which may be characterized as procedural rules which will detract from the ability of any litigant or member of the bar of this state to know the fundamental rules of litigation which hfiinay affect their rights adversely no matter what court of this state they may be before.
It is clear that what the circuit court in this case did in evenly dividing the costs of the health insurance was not to impose its own procedural “local rule,” which is prohibited; it made a decision based on what it deemed to be equitable, which is fact- and case-specific. The fact that this was not a procedural matter, but the circuit court’s reasonable attempt at an equitable conclusion on the health insurance matter is bolstered by the fact that the amount attributable to appellee as payment for G.L.B.’s health insurance would be reduced if and when appellee’s wife gave birth to their pending child, who would be covered under the same policy. As noted by the circuit court with regard to health insurance that covers a number of people, “[Y[ou could say, [G.L.B’s] free because once [appellee] is covered, she doesn’t cost. On the other hand, you could say he’s free because once the child is covered, he doesn’t cost.” The fact remains that the cost for the additional family coverage, which included G.L.B., was $700. We find no error in the circuit court’s decision to attribute half, and more likely only a third, of that amount to coverage for G.L.B.
VI. Video Camera Removal
Appellant’s fourth argument is that the circuit court erred in refusing to order removal of a video camera from G.L.B.’s room. Again, appellant provides no legal authority for her argument.. We have consistently held that we will not consider an argument on appeal that has no citation to authority or convincing legal argument, nor will we research | i7or develop an argument for appellant. It is impossible for our court to. conduct a meaningful review in a case where the appellant offers no authority or convincing argument to support allegations of error. However, we do note that no proof or assertion of harm to G.L.B. was ever provided to the court. To quote the circuit court, “[s]o long as [appellee and his wife] are not endangering the child, [appellant] just has to butt out.”
VII. Consideration of Tax Refunds as Income
Appellant’s final argument is that the circuit court erred in denying appellant’s motion that appellee’s tax refunds be
considered income for purposes of child support'. This argument was initially made in appellant’s January 2, 2014 motion to modify child support, almost one year after the circuit court’s entry of the parties’ divorce decree. However, she raised this issue before both judges below and each judge denied her request. The party seeking modification of a support award has the burden of showing a change in circumstances. Appellant concedes in her brief that appellee “claimed zero dependents for tax purposes every year he worked at Wal-Mart.” It is unquestioned that appellee worked |1sfor Walmart for 28 years. Accordingly, appellant proved no changed circumstances. Though appellant argues that appellee was “purposeful” in seeking extra withholding, the evidence was that appellee simply did what he had always done, even throughout the parties’ marriage. This court finds no error.
Affirmed in part; reversed in part.
Virden and Harrison, JJ., agree.
. G.L.B. was six years of age at the time of the divorce decree.
. (Repl. 2015).
. Appellant is a district judge.
.Appellant also argued, however, that appel-lee had submitted no proof of income with which a determination of whether appellee qualified for a reduction of child support could be made. She requested that appellee be required to provide proof of his current income.
. There had been a previous hearing in which appellee had testified and put on all his witnesses; however, appellant requested the judge's recusal thereafter, which he agreed to, and a special judge was assigned to hear the case. The new judge read all the testimony from the previous hearing.
. Appellee had remarried.
. The amount was to be $233 monthly of the $700 in the event that appellee’s then-pregnant wife gave birth as planned, thereby allowing appellee an annual deduction of $2,796 for payment of G.L.B.’s health insurance.
. Williams v. Nesbitt, 2012 Ark. App. 408, at 4, 421 S.W.3d 320, 323 (citing Hudson v. Hilo, 88 Ark. App. 317, 198 S.W.3d 569 (2004)).
. Id.
. McCormick v. McCormick, 2012 Ark. App. 318, at 4, 416 S.W.3d 770, 774 (citing Ark. Code Ann. § 9-12-315 (Repl. 2009)).
. Dew v. Dew, 2012 Ark. App. 122, at 7, 390 S.W.3d 764, 769.
. Id. at 8, 390 S.W.3d at 769 (citing Gilliam v. Gilliam, 2010 Ark. App. 137, 374 S.W.3d 108).
. McCormick, supra (citing Baxley v. Baxley, 86 Ark. App. 200, 167 S.W.3d 158 (2004)).
. Id. at 4-5, 416 S.W.3d at 774 (citing Baxley, supra).
. Id. at 5, 416 S.W.3d at 774.
. Id.
. (Emphasis added.)
. Metz v. Langston, 2015 Ark. App. 319, at 9, 463 S.W.3d 305, 311 (citing Stevenson v. Stevenson, 2011 Ark. App. 552).
. Troutman v. Troutman, 2016 Ark. App. 70, at 5, 482 S.W.3d 365, 369 (citing Hall v. Hall, 2013 Ark. 330, 429 S.W.3d 219; Brown v. Brown, 2014 Ark. App. 455, 440 S.W.3d 361; Hill v. Kelly, 368 Ark. 200, 243 S.W.3d 886 (2006)).
. Id. (citing Hall, supra).
. Id. at 5-6, 482 S.W.3d at 369.
. Id. at 6, 482 S.W.3d at 369.
. (Repl.2015).
. Browning v. Browning, 2015 Ark. App. 104, at 6, 455 S.W.3d 863, 867 (citing Cowell v. Long, 2013 Ark. App. 311).
. Id. (citing Tucker v. Office of Child Support Enf't, 368 Ark. 481, 247 S.W.3d 485 (2007)).
. Id.
. Id. (citing Cowell, supra).
. 295 Ark. 94, 97, 747 S.W.2d 77, 78 (1988) (citing 27C C.J.S. Divorce § 675 (1986); Annot, Child Support-Excessiveness or Adequacy, 27 A.L.R.4th 864 (1984)).
. Id. at 97, 747 S.W.2d at 78.
. Id. at 97, 747 S.W.2d at 78-79 (citing Klinge v. Klinge, 554 S.W.2d 474 (Mo. 1977)).
. Id. at 98, 747 S.W.2d at 79 (citing Weiser v. Weiser, 238 Pa.Super. 488, 362 A.2d 287 (1976); Henderson v. Lekvold, 95 N.M. 288, 621 P.2d 505 (1980); Klinge v. Klinge, supra; Rohloff v. Rohloff, 161 Mich.App. 766, 411 N.W.2d 484 (1987)).
. No other statements regarding Dale's reason for leaving his job were detailed in the opinion.
. 307 Ark. 410, 821 S.W.2d 16 (1991).
. Id., 307 Ark. at 416, 821 S.W.2d at 20 (quoting Grady, 295 Ark. at 98, 747 S.W.2d at 79).
. Id. at 416, 821 S.W.2d at 20.
. Id. at 417, 821 S.W.2d at 20.
. Troutman, 2016 Ark. App. 70, at 1-2, 482 S.W.3d at 367 (citing Brown v. Brown, 2014 Ark. App. 455, 440 S.W.3d 361).
. Guthrie v. Guthrie, 2015 Ark. App. 108, at 11, 455 S.W.3d 839, 846 (citing Stevenson v. Stevenson, 2011 Ark. App. 552).
. Hill v. Kelly, 368 Ark. 200, 207, 243 S.W.3d 886, 891 (2006) (citing Evans v. Tillery, 361 Ark. 63, 204 S.W.3d 547 (2005)).
. (Emphasis added.)
. 294 Ark. 664, 666, 742 S.W.2d 551, 552 (1987).
. Zimmerman v. Pope, 2015 Ark. App. 499, at 13, 471 S.W.3d 646, 655 (citing Cooper v. Cooper, 2013 Ark. App. 748, at 9, 431 S.W.3d 349, 355).
. Id. (citing City of Greenbrier v. Roberts, 354 Ark. 591, 594, 127 S.W.3d 454, 456 (2003)).
.The initial judge denied her request because appellee's withholding patterns were known at the time of the divorce decree and the special judge denied her request asserting that it could not retroactively modify support to the time of the divorce decree and appellee no longer worked for Walmart.
. Guthrie, 2015 Ark. App. 108, at 8, 455 S.W.3d at 845 (citing Hall v. Hall, 2013 Ark. 330, 429 S.W.3d 219).
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ROBIN F. WYNNE, Associate Justice
|Jn this interlocutory appeal, SEECO, Inc., appeals from an order of the Conway County Circuit Court granting class certification pursuant to Rule 23 of the Arkansas Rules of Civil Procedure. The circuit court granted appellee Eldridge Snow’s motion to represent a class of Arkansas citizens who entered into certain lease agreements with SEECO for the production of natural gas on their property in the Fayetteville Shale. These lease agreements allow SEECO to deduct “reasonable” costs of production from the royalty owners’ payments, and that provision of the contract is at the heart of the class’s claims. On appeal, SEECO challenges the circuit court’s findings regarding the - requirements for class certification, particularly focusing on the decision to limit the class to citizens of the State |2of Arkansas; in addition, SEECO contends that the class certification violates its federal and state constitutional rights to due process. An order granting class certification is immediately appealable to this court under Rule 2(a)(9) of the Arkansas Rules of Appellate Procedure-Civil. We find no abuse of the circuit court’s discretion and affirm.
On May 7, 2010, Snow, individually and as putative class representative on behalf of all similarly situated people, filed a complaint in the Conway County Circuit Court against SEECO, alleging that SEE-CO had underpaid royalties to plaintiffs. Snow filed a first amended complaint on November 3, 2010. As summarized by the circuit court, in the first amended complaint Snow asserts that SEECO has engaged in a fraudulent scheme to underpay and misrepresent the true value of gas production from Snow and the class members’ wells and to deprive Snow and the class of a portion of their royalties through a policy of related schemes, resulting in substantial financial benefit to SEECO and, ultimately, SEECO’s parent company, Southwestern Energy Company (SWN), at the royalty owners’ expense. Snow and the class assert theories of recovery for breach of lease, SEECO’s breach of the duty to act in good faith and as a reasonable prudent operator, conversion, deceit, actual and constructive fraud, unjust enrichment, accounting and constructive trust, and violation of Arkansas statutory law. They allege that SEECO has engaged in a fraudulent | Sscheme, design, plan, and pattern of unlawful activity and common course of conduct to misrepresent the true value of gas production and to deprive royalty owners of a portion of their royalties through a policy of related schemes, resulting in substantial financial benefit to SEECO at the royalty Owners’ expense.
Following extensive discovery, on September 19, 2013, Snow filed a motion for class certification, and on January 7, 2014, he filed a brief in support of class certification. SEECO filed a motion to strike plaintiffs belated motion for class certification on October 4, 2013; a response to plaintiffs belated motion for class certification on October 18, 2013; and a brief in opposition to plaintiffs motion for class certification on January 27, 2014.
In November 2013, the circuit court granted partial summary judgment to SEECO on the following three points: (1) SEECO is entitled to deduct from royalty payments the reasonable costs as outlined in the lease agreements (leaving open the issue of whether the costs deducted were unreasonable); (2) SEECO is entitled to use gas underlying Snow’s property in the conduct of its operations in accordance with the lease; and (3) SEECO does not owe a fiduciary duty or obligation to Snow in accordance with Arkansas Code Annotated section 15-73-207 (Repl. 2009), which is titled “Prudent operator standard.”
The circuit court held a class-certification hearing on February 12 and 13, 2014. At the hearing, both parties presented additional evidence through testimony and evidentiary exhibits, including expert witnesses. The court held a hearing on April 28, 2014, | concerning the proposed findings of fact and conclusions of law. Following this hearing, Snow submitted proposed findings of fact and conclusions of law, to which SEECO objected; Snow filed a response to SEECO’s objections.
On May 19, 2014, SEECO filed a notice of removal in the United States District Court for the Eastern District of Arkansas. SEECO alleged that the federal court had jurisdiction of this case under the Class Action Fairness Act of 2005, in that the putative class would include over 100 members, the amount in controversy is over $5 million, and minimal diversity existed. Regarding the required minimal diversity, SEECO stated that while at the time the complaint had been filed it was an Arkansas corporation, in May 2014 SEE-CO filed papers, and was approved, to become a Domestic For-Profit Corporation in the State of Texas with the name SWN Production (Arkansas), Inc. In addition, in Snow’s Response to SEECO’s Objections to Plaintiffs Proposed Findings of Fact and Conclusions of Law he proposed a class definition of “All non-excluded persons or entities who are citizens of the State of Arkansas as of the date of this Order” (rather than at the time the law suit was filed). On September 25, 2014, the federal district court remanded the case to the Conway County Circuit Court.
On October 14, 2014, the circuit court entered its findings of fact and conclusions of law and order granting plaintiffs motion for class certification. In its forty-page order, the court made extensive findings on the requirements for class certification. The court certified the following class:
All non-excluded persons or entities who are citizens of the State of Arkansas as of the commencement date of this civil action (that is, the date of filing of the original |sComplaint) and who are, or were, royalty owners in wells producing natural gas from the Fayetteville Shale where SEECO, Inc. is or was the operator and/or working interest owner/lessee under oil and gas leases that provide for the payment of royalty as follows:
a) “Lessee shall pay Lessor [stated fraction or %] of the proceeds derived from the sale of all gas including substances contained in such gas)-produced, saved and sold by Lessee. Proceeds are defined as the actual amount received by the Lessee for the sale of said gas. In calculating the proceeds derived from the sale of gas produced, saved and sold by Lessee, Lessee shall be entitled to deduct all reasonable gathering, transportation, treatment, compression, processing and marketing costs that are incurred by Lessee in connection with the sale of such gas” and
b) “Lessee shall have the right to use, free of cost, gas, oil and water found on said land for its operations, except water from the wells of the lessor,”
from and after January 1, 2006, and where DeSoto Gathering Company, LLC and Southwestern Energy Services, Inc. are gathering and purchasing the natural gas, respectively. The Class Claims relate only to the proper payment of royalty arising from SEECO, Inc.’s sales of natural gas to these affiliated entities and produced from the wells completed in the Fayetteville Shale and located in the State of Arkansas. The Class does not include overriding royalty owners or other owners who derive their interest through the oil and gas lessee. The Class is limited to natural gas production from the Fay-etteville Shale.
The Class Claims shall not include royalty owners’ claims in those wells and during those periods where SEECO, Inc. did not, through itself or DeSoto Gathering Company, LLC and Southwestern Energy Services, Inc., gather, market and sell natural gas.
The class definition goes on to list persons or entities excluded from the class. The circuit court appointed Snow as class representative and his attorneys as class counsel. SEECO filed a notice of appeal on October 28,2014.
Class certification of a lawsuit is governed by Rule 23 of the Arkansas Rules of Civil Procedure. Our law is well settled that the six requirements for class-action certification include (1) numerosity, (2) commonality, (3) typicality, (4) adequacy; (5) predominance, Land (6) superiority. Campbell v. Asbury Auto., Inc,, 2011 Ark. 157, at 14, 381 S.W.3d 21, 33. In addition, there must be a defined class that will make it administratively feasible for a court -to determine membership in the class; in other words, class identity must be feasible, and the class cannot be excessively broad or amorphous. Arkansas Blue Cross & Blue Shield v. Hicks, 349 Ark. 269, 281, 78 S.W.3d 58, 65 (2002) (citing Ferguson v. Kroger Co., 343 Ark. 627, 37 S.W.3d 590 (2001)).
Circuit courts are given broad discretion in matters regarding class certification, and we will not reverse a circuit court’s decision to grant or deny class certification absent an abuse of discretion. GGNSC Arkadelphia, LLC v. Lamb, 2015 Ark. 253, at 8, 465 S.W.3d 826, 831. When reviewing a circuit court’s class-certification order, we review the evidence contained in the record to determine whether it supports the circuit court’s decision. Rosenow v. Alltel Corp., 2010 Ark. 26, at 5, 358 S.W.3d 879, 884. Neither this court nor the circuit court delves into the merits of the underlying claims at this stage, as the issue of whether to certify a class is not determined by whether the plaintiff has stated a cause of action for the proposed class that will prevail. Id. We thus view the propriety of a class action as a procedural question: Teris, LLC v. Chandler, 375 Ark. 70, 76, 289 S.W.3d 63, 68 (2008).
On appeal, SEECO argues the following points: (I) The erroneous partial class for citizens of Arkansas is an artifice with no logical relationship to the class or its interests, which renders Mr. Snow and his counsel unfit to represent SEECO’s lessors; (II) Class counsel’s choice to represent part of SEECO’s lessors creates conflicts that make them |7inadequate to represent any SEECO lessor; (III) The gerrymandered class definition fails the “ascertainability” requirement of Rule 23; (IV) The circuit court’s order fails to define the “class claims” and to address the elements of each underlying cause of action as required by Rule 23(b); (V) Common questions do not predominate; (VI) Mr. Snow’s claims are not typical of other Arkansas citizens; (VII) Representative litigation is not superior because Mr. Snow’s gerrymandered class requires multiple suits; and (VIII) The partial, gerrymandered class violates SEECO’s federal and state constitutional rights to due process. In sum, SEECO challenges all requirements for class certification save numerosity.
For its first point on appeal, SEECO argues that “the erroneous partial class for ‘citizens of Arkansas’ is an artifice with no logical relationship to the class or its interests, which renders Mr. Snow and his counsel unfit to represent SEECO’s lessors.” This is a theme to which SEECO returns throughout its brief. SEECO contends that if a class action is appropriate for these leases, it should include all such leases, not only those in the hands of Arkansas citizens. SEECO cites Rule 23(a)’s language that “[o]ne or more members of a class may sue or be sued as representative parties on behalf of all.” (Emphasis added). According to SEECO, a “partial class” of Arkansas citizens is an artifice without a rational relationship to the claims and facts of this case and is designed solely to avoid federal jurisdiction. SEECO cites language from a footnote in an unpublished federal district court case to the effect that a citizenship requirement “when employed solely to preserve the class or for other litigation advantage, [is] generally unworthy of certification.” Elsea v. Jackson Cty., No. 10-0620-CV-W-ODS, 2010 WL 4386538, at *3 (W.D. Mo. Oct. 28, 2010), abrogated by Hood v. Gilster-Mary Lee Corp., 785 F.3d 263 (8th Cir. 2015). We reject |sSEECO’s broad argument that there is something inherently wrong with limiting the class to citizens of Arkansas. However, we believe this argument is more appropriately addressed below, within the context of the particular certification requirements that SEECO challenges.
For its second point on appeal, SEECO challenges the circuit court’s finding regarding adequacy. The adequacy criteria under Rule 23 require that the class representatives “fairly and adequately protect the interests of the class.” Ark. R. Civ. P. 23(a)(4). This coui’t has held that three elements are required under the adequacy criteria:
(1) the representative counsel must be qualified, experienced and generally able to conduct the litigation; (2) that there be no evidence of collusion or conflicting interest between the representative and the class; and (3) the representative must display some minimal level of interest in the action, familiarity with the practices challenged, and ability to assist in decision making as to the conduct of the litigation.
Beverly Enters-Ark., Inc. v. Thomas, 370 Ark. 310, 320, 259 S.W.3d 445, 452 (2007) (citing Asbury Automotive Group, Inc., 366 Ark. at 605, 237 S.W.3d at 465).
Here, SEECO argues that class counsel’s choice to represent part of SEECO’s lessors creates conflicts that make them inadequate to represent any SEECO lessor. SEECO does not cite any authority for the proposition that limiting a class to Arkansas citizens amounts to claim-splitting and a conflict of interest for counsel. It does cite Hunt v. McWilliams, 218 Ark. 922, 240 S.W.2d 865 (1950), for the proposition that, in Arkansas, every party to a contract is an indispensable party to litigation affecting that contract and presents as an example a lease that passes by inheritance to a daughter domiciled in Arkansas and a son domiciled in another state. Hunt is distinguishable from the present ease in that it concerned ] 9the cancellation of an oil and gas lease, which necessarily affected the rights of royalty owners who had not had the opportunity to participate in the case. Here, as Snow points out in his brief, the rights of non-citizen royalty owners are not impaired, and they are free to pursue their claims in another class action or individually.
SEECO further argues that Mr. Snow is not an adequate class representative because he leaves too much decision-making to his attorneys, and he has an actual conflict with other SEECO lessors because his well is close to the interstate pipeline, which places him in conflict with those whose wells are far from the pipeline when a cost-of-service analysis is conducted. Mr. Snow testified at deposition and at the certification hearing, and he expressed his willingness to represent the class. There is no requirement that he participate in the case to the extent suggested by SEECO (reviewing motions and reading depositions, directing his attorneys regarding how to proceed in litigation). The class representative need not be a legal expert or an oil-and-gas expert; rather, he must “display some minimal level of interest in the action, familiarity with the practices challenged, and ability to assist in decision making as to the conduct of the litigation.” See Beverly Enters-Ark., supra. The circuit court’s determination that Mr. Snow met these requirements is not an abuse of discretion. Furthermore, the argument about the location of Mr. Snow’s well goes to the merits of the case and the amount of damages he may be entitled to receive; it does not bar him from serving as class representative, as those same arguments could be made about any 10potential representative—one royalty owner’s well will always be closer or farther from the pipeline than other royalty owners’ wells.
For its third point on appeal, SEECO challenges the circuit court’s finding regarding “ascertainability,” or the requirement that the identity of class members be ascertainable by objective criteria and be administratively feasible. First, we find no support in the record for SEECO’s claim that the circuit court’s findings on this point are based on the faulty legal premise that “citizenship” and “residency” are synonymous. Citizenship is synonymous with “domicile” and means “actual residence plus the intent to remain in a particular place.” See Leathers v. Warmack, 341 Ark. 609, 618, 19 S.W.3d 27, 34 (2000). Nonetheless, intent may be shown through acts. Id. For business entities, the citizenship determination depends on multiple factors and turns on the type of entity at issue. In addressing the argument, the circuit court found as follows:
The court concludes that Plaintiff has satisfactorily explained how class members will be identified by the use of Defendant’s records and other publicly available information (objective criteria). Based on Defendant’s records, over 70% of the roughly 8,000 royalty owner payees have Arkansas addresses, which leads the court to conclude that it is more likely than not that the citizenship of the class members should be ascertainable through objective criteria including the use and confirmation of public records such as voting registration records, property tax records, length of residence and other modes of inquiry, where necessary. Once an initial evaluation is made, with an understanding that it is more likely than not that those persons within Arkansas have a greater likelihood of being Arkansas citizens than those without the state, the court does not envision a problem with making any necessary citizenship determinations based on good faith challenges by Defendant.
We are satisfied that the circuit court did not abuse its discretion in finding that citizenship may be determined by objective criteria for most class members, with those questionable cases identified by SEECO requiring a determination by the court. We note that we have previously accepted the argument that class members may prove their membership through affidavits or testimony. Philip Morris Cos., Inc. v. Miner, 2015 Ark. 73, at 16, 462 S.W.3d 313, 323. The circuit court is in the better position to determine administrative feasibility, and we hold that there was no abuse of discretion on this point.
For its fourth point, SEECO argues that the circuit court’s "order fails to define the “class claims” and to address the elements of each underlying cause of action. An order certifying a class action must define the class and the class claims, issues, or defenses. Ark. R. Civ. P. 23(b). Here, SEECO argues that the certification order requires speculation regarding which claims or elements will proceed on a class basis. However, we observe that the class is defined, the class claims turn on the allegation that the class has been underpaid on their royalties, and the causes of action are outlined in the complaint and certification order. We agree with Snow’s argument that this point spills over into commonality and is better addressed there.
For its fifth point on appeal, SEECO argues that common questions do not predominate. Thus, SEECO challenges the circuit court’s findings regarding commonality and predominance. Rule 23(a)(2) l-equires the circuit court to make a determination that “there are questions of law or fact common to the class.” Rule 23(a)(2) does not require that all questions of law or fact be common; rather, the standard is that there need be only a single issue common to all members of the class. Johnson’s Sales Co. v. Harris, 370 Ark. 387, 391, 260 S.W.3d 273, 276 (2007). Here, SEECO contends that the question whether it charged unreasonable post-production costs depends on the individual lease, the particular 112well to which it is connected, and what post-production costs were charged. However, SEECO ignores that the class members were charged at the same postage-stamp rate for post-production costs; thus, there is a common question whether the rate SEECO charged is unreasonable. The circuit court identified multiple common issues, including “whether SEECO has breached, and continues to breach, the leases and statutory duties based on the SEECO’s method of calculating and paying royalty.” We see no abuse of discretion in the circuit court’s finding that the commonality requirement had been met.
Next, SEECO contends that no common lease questions predominate over individual issues. Rule 23(b) requires that “the questions of law or fact common to the members of the class predominate over any questions affecting only individual members.” Predominance is a more stringent requirement than commonality. GGNSC Arkadelphia, LLC v. Lamb, 2015 Ark. 253, at 10, 465 S.W.3d 826, 832. Here, in addressing the predominance requirement, the circuit court found that “the overreaching issues in this case are whether Defendant’s course of conduct that was directed at both Plaintiff and the Class Members is a breach of the Plaintiffs and Class Members’ identical lease clauses and a breach of Defendant’s statutory duty to act ‘as a prudent operator for the mutual benefit of the mineral lessor and mineral lessee’ imposed by A.C.A. § 15-73-207.” This court has held that the mere fact that individual issues and defenses may be raised by the defendant regarding the recovery of individual class members cannot defeat class certification where there are common questions concerning the defendant’s alleged wrongdoing that must be resolved for all class members. Gen. Motors Corp. v. Bryant, 374 Ark. 38, 49, 285 S.W.3d 634, 643 (2008). The circuit court did not abuse its discretion ini finding that the predominance requirement had been satisfied.
For its sixth point on appeal, SEECO challenges the circuit court’s finding regarding typicality. The typicality requirement is satisfied if the representative’s claim arises from the same wrong allegedly committed against the members of the class. FirstPlus Home Loan Owner 1997-1 v. Bryant, 372 Ark. 466, 476, 277 S.W.3d 576, 584 (2008). When analyzing this factor, we focus on the defendant’s conduct and not the injuries or damages suffered by the plaintiffs. Id. Here, SEE-CO argues that the circuit court erred in finding typicality because Snow’s lease contains a notice-of-breach clause requiring the lessor to notify the lessee in writing if the lessor believes the lease has been breached and to give the lessee sixty days to cure the alleged breach. According to SEECO, other leases may contain this provision, and Snow would have no incentive to argue that this provision is invalid and not required. It is SEECO’s burden to show an abuse of discretion on appeal, and it has failed to show that the notice-of-breach provision even applies to claims for money damages, especially as to class members who themselves have not filed suit or taken any action.
For its seventh point on appeal, SEECO challenges the circuit court’s finding regarding superiority. It argues that representative litigation is not superior in this case because Snow’s “gerrymandered” class requires multiple law suits. Rule 23(b) requires “that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” The superiority requirement is satisfied if class certification is the more “efficient” way of handling the case, and it is fair to both sides. Baptist Health v. Hutson, 142011 Ark. 210, at 9, 382 S.W.3d 662, 668. Thus, the proper inquiry is whether the class action is superior to the thousands of individual law-suits that the class members might otherwise bring; SEECO’s focus on the other two class actions against it, Stewmon and a class action in federal court; is misplaced. Furthermore, we have noted that the question of superiority is very much related to the broad discretion conferred on a circuit court. Id. (citing FirstPlus Home Loan Owner 1997-1 v. Bryant, 372 Ark. 466, 277 S.W.3d 576 (2008)). We see no abuse of discretion on this point.
For its final point on appeal, SEECO raises a procedural due-process argument. This argument is yet again fo cused on the “partial, gerrymandered class” of Arkansas citizens. SEECO contends that its federal and state constitutional rights to due process were violated by the certification of a class limited to citizens of Arkansas because that class prevents it from raising every available defense and, further, the existence of competing class actions sacrifices basic fairness. We do not address SEECO’s due-process arguments because, as SEECO conceded at oral argument, the circuit court did not rule on them below. The failure to obtain a ruling on an issue, even a constitutional one, precludes our review on appeal. Meador v. Total Compliance Consultants, Inc., 2013 Ark. 22, at 4-5, 425 S.W.3d 718, 721.
As a final note, we address a pending motion in this case. After the briefs were filed in this appeal, a “Notice of Various SEECO Royalty Owners That They Are Exercising Their Right to Opt Out of This Class Litigation If It Is Finally Certified” was filed in this court; the 248 royalty owners who wish to opt out were listed in an attached exhibit. Appellees have filed a motion to strike this notice, and the 248 royalty owners have h ¿responded. We find it unnecessary to comment on the necessity or propriety of this notice, and we deny the motion to strike the notice of opt out.
Affirmed; motion to strike denied.
Special Justices Bob Estes, Scott P. Richardson, and M. Scott Willhite join.
Brill, C.J., and Wood, J., concur.
Danielson, Baker, and Goodson, JJ., not participating.
. Although the record reflects that when SEE-CO, Inc., filed a certificate of formation as a for-profit corporation in the State of Texas in May 2014 it also changed its name to SWN Production (Arkansas), Inc., we will refer to the appellant as “SEECO” in this opinion.
. This case was submitted as a companion case to SEECO, Inc. v. Stewmon, 2016 Ark. 435, 506 S.W.3d 828, 2016 WL 7157969 (CV-15-198), also decided on this date.
. M.L. Tester was also a named plaintiff. His claims were later voluntarily dismissed without prejudice.
.In November 2013, consistent with Snow's lead counsel's statements at a hearing, the circuit court entered an order dismissing with prejudice all claims and alleged causes of action for alter ego, piercing the corporate veil, and the like that would attempt to impose liability on any entity other than the named defendant SEECO, Inc., namely Southwestern Energy Company, DeSoto Gathering Company, LLC, or Southwestern Energy Services Company.
. For any given leaseholder the charges for conveyance of the gas decrease the closer the leaseholder's well is to the interstate pipeline. SEECO contends that there is a conflict between leaseholders who are charged more and those who are charged less when a cost-of-service analysis is conducted. | [
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BRANDON J. HARRISON, Judge
| ^Darlene Rodgers appeals the order of the Mississippi County Circuit Court that terminated her parental rights to her adopted child, C.R. Rodgers challenges the statutory grounds for termination. We affirm.
On 30 October 2014, the Arkansas Department of Human Services (DHS) filed a petition for emergency custody and dependency-neglect of nine-year-old C.R. The accompanying affidavit explained that on October 28, a call to the child-abuse hotline reported that C.R. refused to get on the school bus to go home because he was scared. The caller said that C.R. had been whipped at the bus stop and had approximately twenty |abruises on his arms, legs, and back that were in the process of healing. The police investigated, and Rodgers was arrested for second-degree domestic battery.
The circuit court granted the petition for emergency custody and on November 5 found probable cause to continue DHS’s custody of C.R. Rodgers was ordered to complete parenting classes, watch “The Clock is Ticking” video, maintain stable housing, obtain and maintain stable employment and/or income, and attend anger-management classes. On November 20, C.R. was adjudicated dependent-neglected due to cuts/welts and bruises on his arms, legs, and back. In addition to the above requirements, Rodgers - was ordered to comply with a no-contact order issued in her criminal case and to submit a 2011 psychological evaluation to her attorney or her DHS caseworker.
The circuit court reviewed the case in February 2015 and found that Rodgers had stable income and housing but still needed to complete parenting classes and watch “The Clock is Ticking” video. Another review order in August 2015 noted that Rodgers had completed parenting and anger-management classes and had watched the required video. That order found that the case plan was moving toward an appropriate permanency plan and that the goal of the case would continue to be reunification with Rodgers.
In October 2015, however, the circuit court held a permanency-planning hearing and changed the goal of the case to termination of parental rights and adoption. In its order, the court found that C.R. had been out of his mother’s home for twelve months, had been diagnosed with posttrau-matic stress disorder, and “continued] to have panic attacks and recurrent nightmares in regards to being placed back with his mother.” On October 29, DHS and C.R.’s attorney ad litem filed a joint petition for termination of |3parental rights alleging that (1) C.R. had been “chronically abused” and “subjected to extreme and repeated cruelty in the form of both mental and physical abuse,” and (2) the conditions that resulted in C.R.’s being removed had not been remedied by Rodgers despite a meaningful effort by DHS to remedy those conditions.
The court held a termination hearing on 26 February 2016. Chelsea Fife, a therapist with Families, Inc., testified that C.R. had been her client since June 2015. Fife explained that C.R. had been diagnosed with posttraumatie stress disorder, that she helped him with coping skills and identifying his feelings, and that his therapy was going well. Fife said that when C.R. is asked about Rodgers, he shakes and cries and “will go from smiling and being a happy child to being completely fearful.” C.R. told Fife that he did not wish to return to Rodgers’s home and that he was “scared to go back.” Fife recommended that C.R. not be returned to Rodgers’s custody. She also noted that C.R. was “very comfortable” with his foster parents.
Greg Watson, the DHS caseworker assigned to the case, testified that he had regular contact with Rodgers throughout the case and that she had completed all services required of her. He said that he last spoke with Rodgers six weeks previously about C.R.’s coming home, and Rodgers stated that C.R. “would have to admit to what he had done before she would let him come back home.” Rodgers explained to Watson that C.R. would get up in the middle of the night and steal food out of the refrigerator and that “[h]e needed to admit to what he had done.” Watson testified that Rodgers had not visited C.R. because of the no-contact order and that Rodgers was scheduled to go to 14court on her criminal charges in April. Finally, Watson said that C.R. was doing well at school and was “usually happy ... like a normal kid” around his foster parents.
Sylvia Ware, a DHS supervisor, testified that she was familiar with this case and had spoken with Rodgers about the progression of the case. Ware stated that Rodgers admitted spanking C.R. with a belt. Rodgers also told Ware that C.R. could come home and that she would “put the belt away,” but “he needs to remember that the belt can always come back out.” Ware was also concerned with Rodgers’s statement to her that C.R. had a “demon possessed spirit.”
Tyler Dunegan, C.R.’s foster dad, testified that C.R. was placed with his family in October 2014 and that he wished to adopt C.R. Tyler stated that C.R. has minor behavioral problems, “typical ten-year-old boy behavior; but nothing out of the ordinary.” Tyler explained that when he first arrived, C.R. had frequent nightmares and did not sleep well, but that has improved. Tyler said that he and his wife Carolyn take C.R. to the Calvary Baptist Church in Osceola and that C.R. “loves the church family.” He also stated that C.R. likes to play sports and is very social. He described C.R. as “happy” and “full of joy.” Tyler also explained that he and his wife now have two other foster children, siblings who are three years old and four months old, and that C.R. and the other children “call each other brother and sisters.”
Carolyn Dunegan, C.R.’s foster mom, testified that in April 2015, she and C.R, were in Wal-Mart and C.R. saw Rodgers, which caused him to have a panic attack. Carolyn stated that she has had no issues with C.R. lying to her or stealing. She explained that he was quiet when he first arrived in their home and has always been “very polite” | sand “very loving.” She said that now “he loves life and loves doing things and being active and everything that we do.” Carolyn said that he loves the other foster children in their home and that he is also close to the Dunegans’ extended family. She confirmed that she and her husband were interested in adopting C.R.
Rodgers testified that C.R. had been removed from her home after an incident at a bus stop in October 2014. Rodgers said that C.R. had attempted to take some candy from a “city worker,” that she had yelled at him, and that she had asked a friend for a belt. At that point, the circuit court interrupted the testimony, reminded counsel of Rodgers’s pending criminal charges, and asked if counsel wanted to let Rodgers continue to describe the incident, to which counsel responded, “No.” Continuing her testimony, Rodgers said that she had taken C.R. to a therapist in April 2014 because he had been lying to her and getting in trouble at school. She said he would get up in the middle of the night and get food out of the refrigerator and then he about it. She also described an instance in which he had stolen a toy from a store. She denied having disciplined him for lying or stealing; she said that she employed “talk therapy with him.” With regard to her “demon” comment to Sylvia Ware, Rodgers said that she “didn’t state it the way you said it.” When asked if she feels that C.R. “has the demon in him,” Rodgers said, “I believe he have whatever that’s in him that’s in him.” She also stated that she was “willing for C.R. to come home” and that she was “not planning to using a belt” in the future.
On cross-examination, Rodgers explained that C.R. had moved into her home in April 2013 and had some developmental delays. She said that he had problems with | flSpeech and fíne motor skills and did not know how to write or brush his teeth. She also stated that he had hostile and inappropriate behavior with other children.
Ten-year-old C.R. testified and described his foster dad as “nice” and “awesome.” About his foster mom, he said that she “gets me things and loves me.” He said that he went to live with the Dune-gans because he “had got abused.” He identified Rodgers in the courtroom and said that he had met her at a restaurant before he went to live with her. He thought she was nice at first but “just didn’t like the way she looked at me when she laughed, she had an angry face.” He said that once he began living with her, she was no longer nice, and he became scared of her. He explained that Rodgers had hit him with a stick or a belt every day, usually on his legs and back. He said there had been one time that she hit him in the face, which was the incident at the bus stop. He explained that he had taken a piece of candy from a man from church and that “she came with a belt and she started hitting me with it.” He also stated that Rodgers had locked him in his bedroom at night, which scared him and forced him to use the bathroom on himself if he had to use the bathroom, and she would then hit him with the stick the next morning. He also explained that he had not been allowed to get any food from the kitchen or he would be hit with the stick. He confirmed that he wanted to stay with the Dunegans and that he was scared of going back to Rodgers,
On cross-examination, C.R. agreed that he used to get in trouble at school for backtalking. He also agreed that he used to scratch and bruise himself because he “used to get mad.” He also said that he had gotten paddlings at school that left bruises.
17After DHS rested and Rodgers moved for a directed verdict, which was denied, Rodgers returned to the stand and testb fied that she and C.R. had a good relation^ ship and that she had protected him. She said that when he came to live with her, he had “emotional difficulties” and displayed both suicidal and homicidal behaviors. She also stated that he had been on medication for attention deficit hyperactivity disorder, conduct disorder, and oppositional defiant disorder. She said that she learned from his medical records that he had an acute psychiatric break in 2011 that had been treated at Bridgeway. She denied that she had ever abused C.R. She testified that she wanted.C.R. to live with her again, that she felt she was a good parent, and that she had plans for C.R. to be treated by a cognitive therapist and to start karate classes.
At the conclusion of the hearing, the circuit court orally granted the petition to terminate Rodgers’s parental rights. The court entered a written order on 28 March 2016 terminating Rodgers’s parental rights based'on two statutory bases: (1) the juvenile has been adjudicated dependent-neglected and continued out of the custody of the parent for twelve months, and despite a meaningful effort by DHS to rehabilitate the parent and correct the conditions that caused removal, those conditions have not been remedied by the parent; (2) the parent has subjected the child to aggravated circumstances. On the “failure to remedy” ground, the court found that
[ejven though the mother has complied with the Case Plan and Court Orders and completed services, this is not dis-positive of the issue in this ground pursuant to appellate case law. There are still safety issues and fears expressed by the child if he is returned to the mother. The child was seriously physically abused according to the evidence.
|sOn the “aggravated circumstances” ground, the court stated, “The court finds aggravated circumstances as pled and based on the credible evidence at the hearing, the court finds by clear and convincing evidence based on the testimony of the child at the hearing that he has been chronically abused, physically and emotionally.” The circuit court made clear that its order was based on the totality of the evidence and credibility findings, specifically the testimony of C.R. and Chelsea Fife. Rodgers filed a timely appeal from this order,
We review termination-of-parental-rights cases de novo. Hune v. Ark. Dep’t of Human Servs., 2010 Ark. App. 543, 2010 WL 2612681. Termination of parental rights is an extreme remedy and in derogation of the natural rights of parents, but parental rights will not be enforced to the detriment or destruction of the health and well-being of the child. Id. Grounds for termination of parental rights must be proved by clear and convincing evidence. Id. Clear and convincing evidence is that degree of proof that will produce in the fact-finder a firm conviction as to the allegation sought to be established. Id. The appellate inquiry is whether the circuit court’s finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id. In determining whether a finding is clearly erroneous, an appellate court gives due deference to the opportunity of the circuit court to assess the witnesses’ credibility. Dinkins v. Ark. Dep’t of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001).
The goal of Arkansas Code Annotated section 9-27-341 (Repl. 2015) is to provide permanency in a minor child’s life in circumstances in which returning the child to the |nfamily home is contrary to the minor’s health, safety, or welfare, and the evidence demonstrates that a return to the home cannot be accomplished in a reasonable period of time as viewed from the minor child’s perspective. Id.; Ark. Code Ann. § 9-27-341(a)(3). Parental rights may be terminated if clear and convincing evidence shows (1) that it is in the child’s best interest and (2) that statutory grounds have been proved. Hune, supra.
On appeal, Rodgers challenges both statutory grounds for termination found by the circuit court. She does not challenge the circuit court’s best-interest finding. The first ground, the “out-of-cus tody for twelve months and failure-to-rém-edy” ground, requires the circuit court to find 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.” Ark. Code Ann. § 9-27-341(b)(3)(B)(i)fo).
On this point, Rodgers notes that C.R.’s adjudication was based on “neglect due to cuts/welts and bruises on the juvenile’s arms, legs, and back.” She also notes that there was no finding of abuse in any proceeding leading up to the termination hearing and that she had not been convicted of any crime at the time of the termination hearing. Nevertheless, the circuit court found that there were “still safety issues and fears expressed by the child” and that C.R. was “seriously physically abused.” Rodgers argues, however, that abuse was not a basis for removal and that she “cannot be required to remedy a cause for removal that the circuit court did not find at the adjudication hearing.” She contends that the circuit court “had no authority to retroactively find that Darlene abused [C.R.] |1f)and that abuse was the basis for the adjudication.” She argues that the adjudication was based on neglect, so that was what she was tasked with remedying, and there was no evidence that she had failed to remedy any issues, of neglect.
In response, DHS notes that there are two problems with Rodgers’s argument: (1) the statute does not pertain to remedying the cause for removal but the conditions of removal, and (2) the scope of the “conditions that caused removal” is not necessarily equivalent to, or limited by, how the circuit court characterizes its finding of dependency-neglect in the adjudication order. DHS explains that according to the initial removal and adjudication order, the conditions that caused removal were the presence of numerous unexplained injuries on C.R.’s body, C.R.’s fear of his mother, and the court’s concern for his safety. And, citing the testimony at the termination hearing, especially C.R.’s and Fife’s testimony, DHS argues that the circuit court correctly found that the conditions that had caused removal had not been remedied. According to DHS, both Fife and C.R. testified that he was still afraid of Rodgers, and this evidence supported the circuit court’s finding that “safety issues and concern for the child” still exist.
In support, DHS cites Wheatley v. Arkansas Department of Human Services, 2016 Ark. App. 438, 503 S.W.3d 86, in which a nearly identical argument was made by the appellant. In that case, Wheatley argued that the circuit court made a mistake of fact in its order and that she could not be required to remedy an issue she was never found to have committed.' Specifically, Wheatley argued that there was no finding of abuse in the adjudication order, so the circuit court erred in later basing termination in part on abuse perpetrated by Wheatley. This court disagreed with Wheatley’s argument and stated,
| iiWe are not left with a definite and firm conviction that the trial court’s finding was a mistake or that in making its finding it was operating under a mistaken belief that the court had earlier found Randi to be the actual perpetrator of K.W.’s abuse. Rather, it was operating under the conviction that, regardless of whether Randi had been the actual abuser or had failed to protect her children from the abuse, they were not safe in her care.
Id. at 5. DHS asserts that the circuit court made a similar determination in this case and should be affirmed.
In reply, Rodgers continues to insist that “[s]he cannot be required to remedy an issue or condition that was not determined to exist at the time of the adjudication hearing” and cites Jackson v. Arkansas Department of Human Services, 2013 Ark. App. 411, 429 S.W.3d 276, in support. In Jackson, at the time the child was taken from his mother’s custody, the father’s whereabouts were unknown, and he did not participate in the case until the termination hearing. On appeal, the father argued that the twelve-month failure-to-remedy ground could not apply to him because his conduct did not cause the removal, and this court agreed.
We find no error on this point and affirm. Rodgers cites no authority for. the proposition that the circuit court is limited to determining only whether the stated basis for the adjudication has been remedied at the termination hearing. The statute requires that “the conditions that caused removal” be remedied, not just the named basis for the dependency-neglect adjudication. Based on the testimony presented, especially C.R.’s testimony, which the circuit court found credible, the circuit court found that the conditions that had caused removal had not been remedied, specifically “safety issues and fears expressed by the child if he is returned to the mother.” These conditions existed at the time of removal and continued to exist at the time of termination.
112The case cited by Rodgers, Jackson, is clearly distinguishable; in that case, the child was not in Jackson’s custody when the removal occurred, meaning that Jackson could not be responsible for the conditions that had caused removal. Here, C,R. was clearly in Rodgers’s custody at the time of his removal.
Progress toward or even completion of the case plan is not a bar to termination of parental rights. Weatherspoon v. Ark. Dep’t of Human Servs., 2013 Ark. App. 104, 426 S.W.3d 520. What matters is whether completion- of the case plan achieved the intended result of making a parent capable of caring for his or her child; mere compliance with the directives of the court-and DHS is not sufficient if the root cause of the problem was not adequately addressed. See Lee v. Ark. Dep’t of Human Servs., 102 Ark. App. 337, 285 S,W.3d 277 (2008). In this case, we hold that the circuit court did not err in determining that the root cause of the problem was still present and that termination on this statutory basis was proper.
We also hold that there was sufficient evidence presented to support the second ground for termination, which was aggravated circumstances. For this ground, the circuit court is required to find that the parent has subjected any juvenile to aggravated circumstances, meaning the juvenile has been abandoned, chronically abused, subjected to extreme or repeated cruelty, sexually abused, or a determination has been or is made by a judge that there is little likelihood that services to the family will result in successful reunification. Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)('q)®(A; & (B).
The circuit court found that C.R. had been chronically abused, both physically and emotionally, but Rodgers argues that the evidence was insufficient to support such a | ^finding. She asserts that the circuit court based this finding on C.R.’s testimony and denies that his testimony established any abuse and certainly not chronic abuse. However, we note that the court’s finding was based not just on C.R.’s testimony, but on the totality of the evidence, and especially Fife’s testimony, which the court specifically noted and found credible. We also note that C.R.’s testimony alone is sufficient to support a finding of abuse; daily beatings with a stick or a belt .certainly support a finding of “extreme or repeated cruelty,” which constitutes abuse under the statute. The circuit court is in a superior position to observe the parties before it and judge the credibility of the witnesses, and we will not second-guess that determination. Dinkins, supra.
Affirmed.
Gruber and Hoofman, JJ., agree. | [
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PER CURIAM
|!Appellant Edmond, McClinton, Jr. was convicted of raping a mentally handicapped, sixteen-year-old girl and was sentenced as a habitual offender to a term of life imprisonment. His conviction and sentence were affirmed by this court. McClinton v. State, 2015 Ark. 245, 464 S.W.3d 913, cert. denied, — U.S. —, 136 S.Ct. 367, 193 L.Ed.2d 297 (2015). The mandate issued on July 23, 2015. On September 22, 2015, McClinton filed in the trial court a pro se petition under Arkansas Rule of Criminal Procedure 37.1 (2015) and motion for error coram nobis. On November 18, 2015, the trial court dismissed the petition for postconviction relief and coram-nobis relief, and McClinton lodged an appeal from the denial.
On appeal, McClinton contends that his postconviction petition was not untimely as the trial court held because the postmark on his petition indicates it was mailed on September 16, 2015, well before the September 21, 2016 due-date, and that the file-mark |2of September 22, 2015, is a clerical error. He further contends he is entitled to coram-nobis relief because his conviction “rest[ed] upon errors of fact[,]” including that there was no evidence or signs of sexual intercourse; the police-evidence log did not have the DNA used at trial in its records; there was no probable cause supporting his arrest; evidence should have been suppressed; he did not have a preliminary hearing after his arrest; his counsel refused to argue various violations of his due-process rights and counsel was otherwise ineffective; and the jury “convicted [him] without burden of proof.”
Rule 37.2(c) requires that, when an appeal was taken of the judgment of conviction, a petition under the Rule must be filed in the trial court within sixty days of the date the mandate is issued by the appellate court. Ark. R. Crim. P. 37.2(c)(ii); see Hunt v. State, 2016 Ark. 168 (per curiam) (Petitioner’s Rule 37.1 petition was untimely filed on the sixty-first day after the mandate issued.). The time requirements are mandatory, and, when a petition under Rule 37.1 is not timely filed, a trial court shall not grant postconviction relief. Hunt, 2016 Ark. 168; see Joslin v. State, 2015 Ark. 328 (per curiam).
Although this court adopted limited implementation of the prison-mailbox rule through amendments to Rule 37 effective September 1, 2015, as McClinton indicates, a petition under Rule 37.1 is not deemed filed on the date an incarcerated inmate deposited his or her petition in the prison facility’s legal mail system unless conditions that are set out in the Rule have been satisfied. See Anderson v. Kelley, 2016 Ark. 46 (per curiam); see also In re Ark. Sup. Ct. Comm, on Criminal Practice—Ark. R. App. P.—Crim. 2 & Ark. R. Crim. P. 37.2, 2015 Ark. 296 (per curiam). Those requirements under Rule 37.2(g) include: on the date the petition is deposited in the mail, the petitioner is confined in a state correctional facility, a federal correctional facility, or a regional or county detention facility that maintains a system designed for legal mail; the petition is filed pro se; the petition is deposited with first-class postage prepaid, addressed to the clerk of the circuit court; and the petition contains a notarized statement by the petitioner in the form as follows:
I declare under penalty of perjury: that I am incarcerated in_ [name of facility];
that I am filing this petition pro se; that the petition is being deposited in the facility’s legal mail system on _[date];
that first-class postage has been prepaid; and that the petition is being mailed to _[list the name and address of each person served with a copy of the petition].
(Signature) [NOTARY]
Additionally, under Rule 37.2 (g), the envelope in which the petition is mailed to the circuit clerk shall be retained by the circuit clerk and included in the record of any appeal of the petition. Because McClinton did not meet the requirements of the prison-mailbox rule, specifically that he did not include the above-referenced notarized statement in his Rule 37.1 petition, he does not benefit from its application.
Although the mailbox rule alleviates the need to question delays in the mail and had McClinton utilized the mailbox-rule, which was an available option had he met the above-referenced conditions, his Rule 37.1 petition would have been timely filed. However, absent McClinton’s utilization of the mailbox-rule, this court may still consider his contention of a clerical error regarding the reason for the delay—-which included a weekend, between September 16, 2015, a Wednesday, to September 22, 2015, a Tuesday—in the 14receipt and filing of the petition, which remains unexplained; although seven days of .mail-delivery time from Grady, Arkansas, to Pine Bluff, Arkansas, seems a bit incongruent for the distance between the two locales. Although McClinton in his reply brief claimed he had no knowledge of the mailbox rule, a petitioner, even one proceeding pro se, must conform to the prevailing rules of procedure. See Newton v. State, 2014 Ark. 538, 453 S.W.3d 125 (per curiam). Ignorance of the applicable procedural rules does not excuse a petitioner from conforming to the prevailing rules of procedure. Adkins v. State, 2015 Ark. 336, at 3, 469 S.W.3d 790, 794 (per curiam).
Notwithstanding these requirements, this court finds, under these unique facts and very limited circumstances, that McClinton’s Rule 37.1 and coram-nobis petition should have been filed prior to the 60-day filing deadline. The matter is remanded for the circuit clerk to file-mark McClinton’s Rule 37.1 petition as of September 21, 2015. Upon the filing of the Rule 37.1 petition, the trial court should determine whether it has jurisdiction over the matter and can reach the merits of the petition for Rule 37.1 relief and issue an order accordingly ruling on and disposing of the Rule 37.1 petition—an order from which McClinton may or may not subsequently seek to perfect an appeal.
Although McClinton stated various grounds alleging entitlement to coram-no-bis relief, many of which cannot be distinguished from his claims for Rule 37 relief, the trial court denied relief, finding it did not have jurisdiction to entertain a petition for writ of | terror coram nobis because this court had not granted McClinton permission by reinvesting jurisdiction in the trial court. During the pendency of his direct appeal in this court, McClinton filed a petition asking this court to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis. McClinton v. State, 2015 Ark. 161 (per curiam). We found no ground for the issuance of a writ of error coram nobis, as it was evident on the face of the petition that the alleged grounds for relief could easily have been discerned at the time of the proceedings and raised in the trial court; that is, none of the allegations of error was such that it could not have been settled at trial. Id. at 3.
A prisoner who appealed his judgment and who wishes to attack his conviction by means of a petition for writ of error coram nobis must first request that this court reinvest jurisdiction in the trial court because the filing of the transcript in an appellate court deprives the trial court of jurisdiction. Maxwell v. State, 2012 Ark. 251 (per curiam).... The petition for leave to proceed in the trial court is necessary because the trial court can entertain a petition for writ of error coram nobis after a judgment has been affirmed on appeal only after we grant permission. Mackey v. State, 2014 Ark. 491 (per curiam).
Noble v. State, 2015 Ark. 141, at 5-6, 460 S.W.3d 774, 778-79 (quoting Green v. State, 2015 Ark. 25, 453 S.W.3d 677). Because McClintoris record was in this court, the trial court was deprived of jurisdiction to entertain his petition for coram-nobis relief at the trial-court level, and, absent permission from this court to reinvest jurisdiction—which was not granted when he requested it—the trial court properly dismissed the coram-nobis petition, and we affirm that aspect of the court’s order. See Noble, 2015 Ark. 141, 460 S.W.3d 774.
Affirmed in part; reversed and remanded in part.
. There appears to be a handwritten notation, "9/22/15,” on the envelope that contained McClinton’s petition, although there is no other notation with the date to indicate that it is a received date or any other correlation for that date or whether the circuit clerk’s office was responsible for writing the date. | [
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PHILLIP T. WHITEAKER, Judge
1Jesse Everett appeals a Pulaski County Circuit Court order terminating his parental rights to his son L.E. Everett’s counsel has filed a motion to withdraw from representation and a no-merit brief pursuant to Linker-Flores v. Arkansas Department of Human Services, 359 Ark. 131, 194 S.W.3d 739 (2004) and Arkansas Supreme Court Rule 6—9(i) (2015), stating that there are no meritorious grounds to support an appeal. Counsel identified three adverse rulings: the termination decision, the denial of his request for additional time for rehabilitation, and the trial court’s failure to make a relative placement. The clerk twice mailed a certified copy of counsel’s motion and brief to Everett, informing him of his right to file pro se points for reversal. Everett failed to file his pro se points by the deadline specified in our rules. His pro se points are, therefore, untimely and are not properly before us for review. Because there are no issues of arguable merit presented, we affirm and grant counsel’s motion to withdraw.
The facts surrounding the removal of the child and the ultimate termination of parental rights are these. L.E. was removed from the care of Jordan Goff, L.E.’s mother, by the Department of Human Services (DHS) due to Goffs drug use and inadequate supervision. DHS filed a dependency-neglect petition to which Everett was named as a party. Everett appeared at the probable-cause hearing and testified that he was incarcerated at the time of L.E.’s birth, but that he believed he is L.E.’s father and agreed to take a paternity test. Everett further admitted that he had a pending misdemeanor drug charge in Sherwood but insisted he did not have a drug problem. He was on parole from previous drug charges at the time of the probable-cause hearing. L.E. was adjudicated dependent-neglected on June 23, 2014, based on a stipulation of parental unfitness due to Goffs drug usage.
Throughout the course of the dependency-neglect proceeding, Everett was granted supervised visitation with L.E. twice a week, which was contingent upon negative drug screens. Everett was also ordered to submit to random drug screens; to complete a drug-and-j ^alcohol assessment, a counseling assessment, and a psychological evaluation; to complete parenting classes; to establish paternity; and to maintain stable housing and employment.
At times, the court noted that Everett had made some progress. However, the court also expressed concern that Everett had lied to the court about his drug usage, which created an apprehension that he was either using, selling, or stockpiling hydro-codone prescribed for his knee. By September 2014, Everett was incarcerated. His incarceration resulted in several delays of the proceedings due to irregularities in executing transport orders.
In August 2015, DHS filed a petition to terminate Everett’s rights to L.E. The petition alleged first that Everett had not proved significant contacts with the juvenile sufficient for his parental rights to attach. In the alternative, DHS also alleged the following grounds for termination with respect to Everett: (1) that L.E. had been adjudicated dependent-neglected and had continued outside Everett’s custody for more than twelve months and that, despite meaningful effort by DHS to rehabilitate him and correct the conditions which caused removal, the conditions had not been remedied; (2) that other factors had arisen subsequent to the filing of the dependency-neglect petition which demonstrated that return of the child to Everett’s custody would be contrary to his health, safety, or welfare and that, despite the offer of appropriate family services, Everett had manifested an incapacity or indifference to remedy the subsequent issues; and (3) that Everett had been sentenced in a criminal proceeding for a period of time that would constitute a substantial period of the child’s life.
After a hearing on the petition to terminate, the court entered an order terminating Everett’s parental rights on the subsequent-factors and lengthy-incarceration grounds alleged in the petition. The court further found that, because L.E. was adoptable and that potential [4harm existed if L.E. were returned to Everett’s custody, termination was in L.E.’s best interest. This appeal followed.
Our standard of review in termination-of-parental-rights cases is well settled. The termination of parental rights is an extreme remedy and in derogation of the natural rights of the parents. Fox v. Ark Dep’t of Human Servs., 2014 Ark. App. 666, 448 S.W.3d 735; Stockstill v. Ark. Dep’t of Human Servs., 2014 Ark. App. 427, 439 S.W.3d 95. As a result, the law places a heavy burden on the party seeking to terminate the relationship of a parent. Fox, supra.
Here, DHS sought to terminate Everett’s natural rights as a parent. In order to terminate Everett’s rights, DHS had to prove two things. First, that termination is in the best interest of the child, considering the likelihood that the child will be adopted if the parent’s rights are terminated and the potential harm caused by returning the child to the custody of the parent. Weatherspoon v. Ark. Dep’t of Human Servs., 2013 Ark. App. 104, 426 S.W.3d 520; Ark. Code Ann. § 9-27-341(b)(3)(A) (Repl. 2015). Second, the existence of one or more of the grounds for termination listed in section 9-27-341(b)(3)(B). Henson v. Ark. Dep’t of Human Servs., 2014 Ark. App. 225, 434 S.W.3d 371. Both of these requirements must be proved by clear and convincing evidence.
Clear and convincing evidence is the degree of proof that will produce in the fact-finder a firm conviction regarding the allegation sought to be established. Fox, supra. When the burden of proving a disputed fact in equity is by clear and convincing evidence, the question that we must answer on appeal is whether the trial court’s finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. Id. A finding is clearly |fierroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id.
I. Statutory Ground
The trial court found sufficient evidence of two statutory grounds on which to base its termination of Everett’s parental rights. However, only one ground must be proved to support termination. Lee v. Ark Dep't of Human Servs., 102 Ark. App. 337, 285 S.W.3d 277 (2008). DHS proved the substantial-incarceration ground.
Arkansas Code Annotated section 9—27—341(b) (3) (B) (viii) provides for termination “when [t]he parent is sentenced in a criminal proceeding for a period of time that would constitute a substantial period of the juvenile’s life[.]” This court looks at the length of the prison sentence, not'the potential release date, when reviewing whether this statutory ground has been met. Sanford v. Ark Dep’t of Human Servs., 2015 Ark. App. 578, at 11-12, 474 S.W.3d 503, 510.
The uncontroverted evidence here is that, on May 3, 2010, Everett was convicted of possession of methamphetamine, third-offense possession of marijuana, third-offense possession of alprazolam, third-offense possession of diazepam, and third-offense possession of clonazepam. He was sentenced to ten years in prison with three years suspended. This sentence was to be served concurrently with his sentencing on three other criminal convictions. Everett served thirteen and one-half months of his eighty-four month sentence prior to his parole on April 20, 2011. He was reincarcerated in July 2014 for violating his parole. Everett testified that he was due to be released on either November 30 or December 4, 2015, upon completion of his drug-treatment program. No official documentation of his | f,potential release date was provided. At the time of the termination hearing L.E. was five years old, and Everett had already been in prison for almost half of L.E.’s life. Given that Everett was unable to remain out of prison for more than a few years and given the substantial amount of incarceration remaining on his original sentence, the trial court’s determination that Everett had been sentenced in a criminal proceeding for a substantial portion of L.E.’s life was not clearly erroneous.
II. Best Interest
Next, we must determine if there was sufficient evidence to support the trial court’s best-interest finding. Here, the social worker testified that L.E. ,was adoptable and that there were over 150 families on the data-matching list, even taking L.E.’s reactive-attachment-disorder diagnosis into consideration. As for potential harm, Everett was incarcerated at. the time, of the hearing. He expressed his intent to stay either at Our House or his grandmother’s home upon his release, neither of which the court found to be suitable for L.E. During the short period of time that Everett .was. not incarcerated while L.E. was in foster care, he visited the child only three times and, once incarcerated, he made no effort to contact the child. Moreover, while Everett had nearly completed a .substance-abuse treatment program at the time of the hearing, he attended the program while incarcerated, and there was no evidence that he would be able to maintain his sobriety once released. A parent’s lack of stable housing or employment can demonstrate potential harm to & child, as can a parent’s continued illegal-drug usage. See, e.g., Jung v. Ark Dep’t of Human Servs., 2014 Ark. App. 523, 443 S.W.3d 555 7(holding that, while there was some evidence that Jung was recently employed and sober at the time of the hearing, there was insufficient proof that, given her history, she could maintain employment or sobriety.) As a result, it was not clear error for the court to find that there was potential harm if the child was returned to Everett’s custody.
III. Other Adverse Rulings
Counsel next addresses two potentially adverse rulings. The first relates to Everett’s request for additional time to facilitate reunification. However, we have often stated that a child’s need for permanency and stability may override a parent’s request for more time to improve the parent’s circumstances. Shaffer v. Ark. Dep’t of Human Servs., 2016 Ark. App. 208, at 6, 489 S.W.3d 182, 185; Knuckles v. Ark. Dep’t of Human Servs., 2015 Ark. App. 463, 469 S.W.3d 377; Loveday v. Ark. Dep’t of Human Servs., 2014 Ark. App. 282, 435 S.W.3d 504. Here, the child had been out of the home for over fifteen months at the time of the termination hearing. Everett, at that time, had done little to comply with the case plan and had almost no contact with the child. He was incarcerated at the time of the termination hearing and did not have an appropriate home to return to upon his release from prison. While he was participating in a substance-abuse treatment program in prison, there was no guarantee that he could maintain sobriety once he left the drug-free institution.
Finally, counsel addresses Everett’s request for L.E. to be placed with relatives rather than have his rights terminated. Arkansas law permits a trial court to set termination or adoption as the case goal even when a relative is available and requests custody. Ark. Code Ann. § 9-27-338(c)(1)—(7). Arkansas Code Annotated section 9-27-338(c)(l)-(7) lists the permanency goals that the circuit court is to consider in determining the best interest of the Ischildren in an order of preference. Permanent relative placement is listed after termination and adoption for the court’s preferential consideration, unless the child was already being cared for by a relative and certain other factors are found to exist. See Ark. Code Ann. § 9-27-338(c)(4) & (6). Thus, according to the public policy of this state, termination and adoption are preferred to permanent relative placement when, as here, the child is not in the care of a relative at the time of the termination hearing. No error occurred.
Based on the foregoing, the termination order is affirmed, and the motion to withdraw granted.
Gladwin, C.J., and Abramson, J., agree.
. Everett may have parental rights to two other children, R.E. and C.E. Everett’s rights to these children were not terminated by this order, and they are not a subject of this appeal because they were living with relatives at the time of the initial removal and at the time of termination.
. The green Card evidencing service was not returned on the first attempt, so a second attempt was made. The green card was returned on the second attempt.
. Rule 6-9 of the Arkansas Rules of the Supreme Court and Court of Appeals grants the appellant thirty days from the date the written notification from the Clerk is mailed to file his pro se points. Ark. Sup. Ct. R. 6—9(i)(3).
. The subsequent paternity test confirmed that Everett is L.E.’s biological father.
. The court on several occasions during the pendency of the case expressed concern that L.E.’s sibling was being cared for by the grandmother. | [
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Wood, J.
This is an action in replevin by Thos. Cox & Sons Machinery Co. (hereafter called the appellant) against Gr. R. Pulton to replevy'certain machinery sold by the appellant to Pulton. The appellant alleged that it owned the machinery, which it described in its complaint, and was entitled to possession thereof; that Pul-ton wrongfully detained the property from the appellant. It prayed judgment for the return of the property or its value in the sum of $529, and for wrongful detention thereof in the sum of $453. After service of the writ it was discovered that the property was in the possession of the Blue Trap Rock Company (hereafter called company). Appellant then amended its complaint, making the company a party defendant. The company executed a bond for the detention of the property, and answered denying that it was in the possession of the property without right, and denying that it unlawfully detained same. It further alleged that on April 1, 1919, by written agreement, it leased to Pulton its rock quarry plant; that Fulton agreed to operate the plant at his own expense and make such necessary repairs as might be needed, and that it was provided that he should not bind the lessor on any obligation whatever; that the appellant had notice of the conditions of the lease; that in September, 1919, Pulton purchased the machinery and supplies for making the repairs from the appellant, and the company notified the appellant o.f the conditions under which Pulton was operating the plant';-that the company indorsed certain notes of Fulton to the appellant, in which the appellant retained title to certain machinery that had been installed in the plant of the company, and, at the time of indorsing these notes, warned the appellant that Fulton was obligated to make the repairs to the plant and not authorized to bind the company. The company further alleged that the lease of its plant to Fulton had expired and been surrendered to the lessor several months before the appellant instituted this action. The company also alleged that the property in controversy had been permanently attached to the realty.
The secretary and treasurer of the appellant testified that he sold the property in controversy to Fulton. He demanded $1,000 in cash of Fulton, and required also that he have the notes for the balance of the purchase money indorsed by the company. Witness talked the matter over with Ledwidge of the company, and the company agreed to indorse the notes, and did indorse for the first part of the machinery ordered. When the balance of the order arrived, appellant took two notes of $210 each. The notes recited that they were given for certain machinery, which is described therein. The notes contained a recital that the sale was on the express condition that the title and right of possession did not pass from the appellant until the balance of the purchase money was paid in full. The property was sold and delivered to Fulton upon an understanding with him and Ledwidge that the company should indorse the notes. The notes for $210 each are still due. The machinery which was purchased by Fulton consisted of pulleys, bearings for a shaft, and a conveyor belt running over two pulleys. The machinery sold Fulton could be taken out without damaging the machinery that was there before it was put in. The present value of the machinery is, as second-hand machinery, about $500. The fair estimate of the damage to the machinery since it had been put into the plant was $453. In. September, 1919, the appellant refused to deliver the other machinery that. had been ordered until the company indorsed the notes. All the machinery was bought about the same time, but at the time it was purchased it was impossible to have all of the articles delivered at once. That accounts for the fact that the two notes sued on were taken after the other notes. The first notes which were taken when the machinery was purchased (and which are indorsed by the company) were paid. The notes in suit dated Jan. 1, 1920, were presented to the company for its indorsement immediately thereafter. Witness took the notes to the company for indorsement, which the company refused.
Fulton testified that he executed the notes in controversy, got the machinery described therein, and installed it at the plant of the company. He had not paid the notes. The machinery purchased is a belt conveyor to handle rock. It is absolutely separate from the rest of the plant, and would work if the rest of the plant were gone. It could be taken out and not affect the rest of the plant. Before installing’ tills belt conveyor he removed an elevator which was in the plant. The company knew that witness was buying these supplies, and talked it over with him before the purchase, and gave witness $1,000 to make the first payment. The items which composed the belt conve3mr are fastened together, and the frame is bolted to the plant. It could be removed without damaging the rest of the plant.
The president of the appellant testified corroborating substantially the testimony of the secretary and treasurer. He stated that the whole'thing was practically one transaction, but the execution of the notes in suit was delayed because the machinery was not all delivered at once, but in relays. The machinery was not a part of the machinery of the plant.
Ledwidve testified, for the company, that the com-•>mnv’s lease to Fulton expired in April, 1920. After Fulton bad leased'the plant he wanted to install a belt eonvevor. and the company let him have $1,000 upon his representation that he could finance the rest of the pur chase. After the machinery had come, Williams, the secretary and treasurer of appellant, stated to witness that he had promised to indorse Fulton’s note. Witness didn’t think he had made Williams that promise; He had no authority to make such a promise, but the machinery had come, and Fulton could not get it unless the notes were indorsed, and so witness indorsed the notes. Witness told Cox at the time he indorsed these notes that if he sold Fulton any more machinery witness hoped Fulton would beat him out of it. That was the last witness heard of the matter until several months afterward, when Williams advised witness that he had taken two other notes for $210 each from Fulton, and asked that the company indorse them. The notes in suit were dated January 1, 1920, but witness had never heard of that up to the time of his renewal of one of the original notes on January 19, 1920. It was witness’ understanding with Fulton that the whole transaction was completed at the time the company indorsed the first notes. Witness thought that Fulton had a separate running account with the company, and that the new notes represented the balance due on that account.
Cammack, who is also an officer of the company, testified that there was some confusion about notes, but after going into the matter the company agreed that it would indorse the first notes given in purchase of the machinery. Later witness heard Ledwidge tell Cox that if he sold Fulton anything more he did so at his peril. That was at the time -the original notes were signed. Witness understood that that was a complete transaction. Witness never heard of the notes in suit. Witness didn’t think that the machinery could be removed without dismantling the plant. The company had always had a conveyor, and could not operate without it.
The appellant prayed the court to instruct the jury to the effect that whether the articles in controversy are fixtures is a question to be determined by the intention of the parties in placing them in the plant; that, if the intention of the parties was that .appellant should recover the articles upon Fulton’s failure to pay for the same, then such articles were not fixtures; tliat, if the jury found that the articles had become fixtures, hut that the company agreed to pay for them, the appellant would be entitled to a verdict against the company for the return of the articles, or their value, and for damages. The court refused to so instruct the jury. On its own motion the court instructed the jury to the effect that the articles in controversy had become fixtures by attachment' to the realty, and that the appellant could not recover the property from the company, and directed the jury to return a verdict in favor of the company. The court further directed the jury to return a verdict in favor of the appellant against Fulton for the return of the articles or for the value of the property, $420, with interest from January 1, 1920’ at the rate of 10 per cent, per annum, or $520.70.
The jury returned a verdict as directed. Judgment was entered in favor of the company against the appellant, from which is this appeal.
The trial court erred in declaring, as a matter of law, that the articles sued for were fixtures. Under the evidence this was an issue for the jury. The jury might have found from the testimony that the company knew when the machinery for which the notes in controversy were executed was purchased by Fulton and installed by him on land leased to him by the company, that the company had knowledge of the fact that the machinery would be installed on its land, and that it also had knowledge of the fact that the appellant had retained title thereto until the purchase money was paid. If the company had this knowledge, then it would be estopped from asserting that the appellant had no right to remove the property from its land; and if it had such knowledge, it could not set.up in defense to appellant’s action that the articles in controversy were fixtures to which the company had acquired title by virtue of its ownership of the soil. See Fears v. Watson, 124 Ark. 342, and oases there cited.
On the other hand, if appellant sold Fulton machinery and reserved tlie title thereto, which machinery appellant knew at the time Fulton intended to attach to the realty of the company, and if the appellant knew at the time that the machinery was of a character that, when attached, would become a fixture and could not be removed without injury to the freehold, and if the company was ignorant of the fact that appellant had reserved the title to the machinery for which the notes in - controversy were executed, then the appellant would not be entitled to recover. Peck & Hammond v. Walnut Ridge Dist., 93 Ark. 77.
The issues under the evidence were not properly submitted to the jury, and for this error the judgment is reversed, and the cause is remanded for a new trial. | [
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Wood, J.
Westmoreland Brothers, hereafter called appellees, were a partnership engaged in the manufacture of staves in Nevada County. The Arkadelphia Milling Company had advanced money to the appellees on the staves manufactured by them. The Valley Lumber Company, hereafter called the appellant, is a domestic corporation which operated a sawmill at Reeder, in Ouachita County, Arkansas, and it operated a logging road extending from its mill into Nevada County. The appellant was not a common carrier and did not maintain any published tariffs, but handled- shipments of freight by special contract with the shippers. The ap-pellees entered into an agreement with the manager of the appellant that the appellees would put their staves along appellant’s right-of-way, on which a spur track was afterwards located. The appellees began to place their staves on this right-of-way some time in September or October, 1919. On account of nnnsnal conditions the appellant was unable to haul them out at that time, and because of unfavorable logging conditions appellant abandoned operations on its spur until August, 1920. About ten days after it started operating again the staves were destroyed by fire.
In December, 1921, appellees instituted this action against the appellant. They alleged, in substance, that the appellant, in operating its locomotive and engine over its line of railroad in Nevada County, set out fire which resulted in the burning of 76,400 staves stacked along the right-of-way of appellant, to appellees’ damage in the sum of $6,122, for which they prayed judgment.
The appellant, in its answer, denied that it had destroyed the staves of the appellees; denied that the staves were stacked along its right-of-way with the knowledge and consent of the appellant. The appellant alleged that the appellees were relying on § 8569 of Crawford & Moses’ Digest, which is set out at length in its answer, and set up that the appellant was not liable under this section of the statute, for the reason that to apply the statute would have the effect of depriving it of its property without due process of law and to deny it equal protection of the law. Appellant denied that the fire was caused by the carelessness of its agents or servants. It denied that the appellees were damaged as alleged in their complaint.
The testimony on behalf of the appellees tended to prove that the staves in controversy, which had been placed by the appellees on appellant’s right-of-way, with the knowledge and consent of appellant, were destroyed by fire set out by a locomotive that was being operated by employees of the appellant. The court, at the request of the appellees, in instruction No. 1, in substance told the jury that, if the appellees placed their staves upon- appellant’s right-of-way with the consent of the appellant and under an agreement -with appellant that it was to transport the same to Reeder, and if the staves were destroyed by fire set out by a locomotive of appellant, the appellant would be liable. The court refused to grant appellant’s prayer for instruction No. 7, which, in effect, told the jury that the appellees would not be entitled to recover unless the appellant was guilty of negligence in regard to the equipment or operation of the locomotive. The trial resulted in a judgment in favor of the appellees, from which is this appeal.
The first question for our consideration is whether or not the appellant is liable under § 8569 of C. & M. Digest, which is as follows: “All corporations, companies or persons, engaged in operating any railroad wholly or partly in this State, shall be liable for the destruction of, or injury to, any property, real or personal, which may be caused by fire, or result from any locomotive, engine, machinery, train, car, or other thing used upon said railroad, or in the operation thereof, or which may result from, or be caused by, any employee, agent or servant of such corporation, company or person, upon or in the operation of such railroad, and the owner of any such property, real or personal, which may be destroyed or injured, may recover all such damage to said property by suit in any court in the county where the damage occurred, having jurisdiction of the amount of such damage, and, upon the trial of any such action or suit for such damage, it shall not be lawful for the defendant in such suit or action to plead or prove as a defense thereto that the fire which caused such injury was not the result of negligence or carelessness upon the part of such defendant, its employees, agents or servants; but in all such actions it shall only be necessary for the owner of such property so injured to prove that the fire which caused or resulted in the injury originated or was caused by the operation of such railroad, or resulted from the acts of the employees, agents or servants of such defendant, and if the plaintiff recover in such suit or action, lie shall also recover a reasonable attorney’s fee, to be ascertained from the evidence in the case by the court or jury trying the same. Provided, that the penalty prescribed by this section shall apply only when such employee, agent or servant is in the discharge of his duty as such.”
This statute was upheld as to railroad corporations in the case of St. Louis & S. F. Ry. Co. v. Shore, 89 Ark 418. See also Evins v. St. Louis & S. F. Rd. Co., 104 Ark. 79; Kansas City So. Ry. Co. v. Harris, 105 Ark. 374; Cairo, T. & S. Rd. Co. v. Brooks, 112 Ark. 298; St. Louis, I. M. & S. Ry. Co. v. Ross, 120 Ark. 595; Union S. & F. Co. v. St. Louis, I. M. & S. Ry. Co., 121 Ark. 585, and exhaustive note to St. Louis & S. F. Rd. Co. v. Shore, supra, 16 A. & E. Ann. Cases, 941. Learned counsel for appellant contend 'that the statute was held valid as to railroad corporations because they are chartered as common carriers for hire, and have certain privileges by virtue of their charter, such as eminent domain, etc.; that the statute is unconstitutional and void when applied to corporations, companies and persons which own and operate railroads, not as common carriers, but in connection with the industrial business or enterprises for which they are incorporated, or which they conduct as unincorporated companies, or. as individuals. Counsel for appellant are correct in this contention.
In St. Louis & S. F. Rd. Co. v. Shore, supra, wo followed the doctrine announced in St. Louis & S. F. R. Co. v. Matthews, 165 U. S. 1. The Supreme Court of the United States in that case had under review a statute of Missouri which made eacli railroad corporation owning or operating a railroad in that State responsible in damages to every person or corporation whose property might be injured or destroyed by fire communicated directly or indirectly by locomotive engines in use upon the railroad owned or operated by such, railroad corporation. The act defined the term “railroad corporation” to mean “all corporations, companies and individuals now owning or operating, or which may hereafter own or operate, any railroad in this State.” The Supreme Court of the United States, in a learned and exhaustive opinion by Mr. Justice Cray, held that the act was a valid exercise of the legislative power, and did not deprive the railroad company of its property without due process of law, or deny to it the equal protection of the law. The acts of Parliament and the statutes of various States are reviewed in which railroads are made liable for the destruction of property caused by their locomotives. The authorities and the reasoning of the court show that the doctrine upon which such statutes are declared valid is that railroad corporations are common carriers, which, under their charter powers, have the right of eminent domain, that is, the right to take the lands of others for the purpose of operating a railroad in the transportation of freight and passengers for the profit of the railroad corporation. Because of this unusual privilege, as well as the dangerous character of the agency which they operate, they can be justly classified and made to bear the burdens of the extraordinary risks to which they subject the property of others.
As was said in Grissell v. Housatonic Rd., 54 Conn. 561-462, one of the cases quoted by Mr. Justice Gray, in St. Louis & S. F. Rd. Co. v. Matthews, supra: “It it confined to them, because they alone have the privilege of taking a narrow . strip of land from each owner, without his consent, along the route selected for the track, and of traversing the same at all hours of the day and night, and at all seasons, whether wet or dry, with locomotive engines that scatter fire along the margin of the land not' taken, thereby subjecting all combustible property to extraordinary hazard of loss, and that, too, for the sole profit of the corporation.”
The term “railroad” used in our statute refers to railroads that are operated by corporations, companies or individuals as common carriers in the State of Arkansas. A legislative classification which makes corporations, companies or individuals operating any locomotive, engine, etc., upon railroads that are operated as common carriers absolutely liable for destruction of property by fire is just and reasonable. Because the operation of their railroad is devoted in part, at least, to the use of the public, and the manner of its use so nearly approximates the operation of chartered railroads as to' bring them within the same classification.
It will be observed that the statute makes such corporations, companies or individuals liable for the destruction of property by fire caused by any employee, agent or servant of such corporation, company or individual, upon or in the operation of such railroad, and that, in actions by the owner for damage, it is only necessary for him to prove that the fire which caused or resulted in the injury originated or was caused by the operation of such railroad, or resulted from the acts of the employees, agents or servants of such defendant. The act makes it unnecessary, in such cases, for the plaintiff to prove negligence on the part of the defendant, and makes it unlawful for the defendant to set up negligence in the defense. The general rule in this country, as well as in England, now is that, in the absence of a statute, a private owner of property on whose premises a fire is accidentally started, or who sets out fire on his own premises for a lawful purpose, is not liable for the damages caused thereby to the property of another, unless the fire was started, or allowed to spread, through negligence. See McNally v. Colwell, 91 Mich. 527, 30 Am. St. Rep. 494, case note 501; Weitzman v. Barber Asphalt Co., 123 Am. St. Rep. 560, case note 576; 11 R. C. L. 940, and numerous authorities cited in note 6.
It is well established that the Legislature, in the exercise of the police power of the State in the regulation and control of the use of dangerous agencies which may cause the destruction of property, may classify corporations, companies and individuals who own and use such agencies and impose upon them certain liabilities and restrictions. Such legislation is valid so long as the classification is not arbitrary, unreasonable and discriminatory. The dangerous character of steam and'the use of locomotives by railroad corporations chartered as such, or corporations, companies or individuals operating railroads as common carriers, though not chartered, places them all in the category where they may be classified and subjected to such special legislation as that provided in § 8569, supra. St. Louis & S. F. Rd. Co. v. Shore, supra; Pittsburgh, etc., Ry. Co. v. Chappell, 183 Ind. 141, Ann. Cases, 1918-A, 627, and note; Tullis v. Lake Erie & W. Rd. Co., 175 U. S. 348 ; Missouri Pac. Ry. Co. v. Mackay, 127 U. S. 205.
But it occurs to us that the act under review, if applied to corporations, companies or persons whieh only operate a railroad in connection with their business or- industrial enterprises, and not as a railroad corporation, or as a common carrier, would be unreasonable, discriminatory, arbitrary, and therefore invalid. Corporations, companies or individuals operating locomotives and trains over railroads which are not chartered, or which do not operate their railroads as common carriers, cannot be classified as railroad corporations, and do not come within the purview of this statute. As we have seen, this statute was leveled wholly at railroad corporations, or corporations, companies or individuals operating railroads as common carriers. Corporations, companies or persons which do not have the charter powers of railroad corporations, or which do not operate their railroads as common carriers, cannot be embraced in the same class with railroad corporations or common carriers by railroads, because they do not have the same ■ privileges and burdens under tlie law and do not operate their railroads under the same conditions. See Presson v. Vail Cooperage Co., 155 Ark. 424. We do not perceive why such corporations, companies or persons could or -should be subjected to greater liabilities than hundreds -of other corporations, companies and individuals which in the prosecution of their business use fire, steam, and other dangerous agencies, but who, under the general rule of law, are only made liable for the damages caused through their negligence.
It follows from what we have said that the court erred in granting appellee’s prayer for instruction No. 1 and in refusing appellant’s prayer for instruction No. *7. The cause was therefore sent to the jury upon an erroneous theory. We find no other reversible errors in the record. For the errors indicated the judgment is reversed, and the cause is remanded for a new trial.
Mr. Justice Hart dissents. | [
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Humphreys, J.
This is a suit upon a contract and bond by appellant against O. C. Langford, as principal, and R. -F. Marsh, and appellee, sureties, for the faithful performance of the contract. The contract sued upon was an employment contract, whereby O. C. Langford was employed by appellant as its sales representative in Little Rock. O. C. Langford was obligated in the contract to pay appellant all sums collected by him for it in the prosecution of the business. The bond was an obligation in the sum of $500 executed by Langford, as prin cipal, and Marsh, and appellee, sureties, to appellant, conditioned for the faithful performance of the contract. The contract contained a provision to the effect that Langford should make weekly reports to appellant showing total sales, cash collected, amount outstanding, and stock on hand and in transit.
The action against the several defendants was submitted on different days.
On June 23, 1922, appellant obtained judgment against O. C. Langford for $606.54, from which there was no appeal.
On June 16, 1922, it obtained judgment by default against E. F. Marsh for $500, the face of the bond, from which no appeal has been prosecuted. On the same day the cause between appellant and appellee was tried, which, at the conclusion of appellant’s testimony, resulted in an instructed verdict in behalf of appellee. The judgment was rendered in accordance with the verdict exempting appellee from liability on the bond, and dismissing* the complaint of appellant, from which is this appeal. For the purposes of the appeal it is agreed between the parties “that the principal to the contract, O. C. Langford, furnished weekly reports during the time of his employment up to and including December 20, 1920, but that none of the reports, after the report for the week of ¡September 13, 1920, show ‘stock on hand and in transit, ’ and that plaintiff failed to notify defendant McCormack of this omission.” The court held that the provision in the contract for a weekly report embracing total sales, cash collected, amount outstanding, and stock on hand and in transit, was an essential part of the contract, for the benefit of the sureties in the bond as well as appellant, and that the acceptance by appellant of weekly reports from O. C. Langford which omitted “stock on hand and in transit” amounted to a material change in the terms .of the contract without the consent of appellee, thereby discharging him as the surety on the bond. Appellant’s contention for reversal is that the provision of the contract referred to was for the sole benefit of appellant, and that a waiver of same on its part in no way affected the sureties. We cannot agree with learned counsel for appellant in this contention. Had the- weekly reports been made in conformity to the contract, it would have reflected, at the end of each week, the exact state of the account between Langford and appellant. Sucli an account would have served as a check upon Langford and a means for discovering any deficit that might exist in its very inception. A bondsmaii would naturally rely upon such restrictions in a contract, for they tend to protect him from loss. It cannot be said of a clause in a contract which serves as a protection to a surety that it was for the sole benefit of an obligee in the bond conditioned for the faithful performance of the contract. The weekly reports omitted matter which was necessary in order to ascertain the exact condition of the account between Langford and appellant. Without showing the amount of goods on hand and in transit, it was impossible to determine at the end of any week whether the deficit or shortage existed in fact. In determining the effect upon a surety of a waiver -of a stipulation in a contract similar to the stipulation in question by an employer, this court, in the case of Singer Mfg. Co. v. Boyette, 74 Ark. 600, said: “The stipulation for weekly settlements in this case was an essential part of the' contract. The enforcement of it would have made a record of the business transactions of Mrs. Boyette, and lessened litigation as to the same, and would have held her in surveillance, and checked the misappropriation by her of moneys in her hands belonging to the company, and would probably have led to the discovery of any misappropriation of money before it could have assumed considerable proportions. This, doubtless, was the object of the stipulation, and its enforcement would a.t least have afforded some protection to the sureties on the bond. Plaintiff having, without their consent, acquiesced in the violation and breach thereof, thereby re leased and discharged them from all liability on the bond. ’ ’
Appellant’s second and last contention for reversal is that the waiver was not pleaded as a defense. It is true appellee did not interpose the waiver as a defense, in his written answer, but, without objection on the part of appellant, evidence was introduced, and the case tried, upon the theory that appellee had been released as surety because appellant waived the weekly reports required by the contract.
No error appearing, the judgment is affirmed. | [
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McCulloch, C. J.
The relators, Charles E. Thomas and Charles H. Proetz, allege that they were stockholders in, and officers of, the Oalion Land and Lumber Company, a Missouri. corporation, now dissolved, and they filed their petition here for a writ of prohibition to prevent the chancery court of Columbia County from proceeding against said corporation in a certain action pending in that court, instituted by the plaintiffs therein, who are the heirs at law of I. F. Langston, deceased.
The pleadings in the chancery court are. set forth in extenso in the petition filed in this court, and it appears therefrom that the -plaintiffs commenced the action in the chancery court of Columbia County asserting title to a certain tract of land by inheritance from their father, and asking that an accounting be had of timber, removed from the land, that a certain ¡mortgage executed.by their father '' be canceled, and that their title be quieted. The defendants named in the complaint are the Freeman-Smith Lumber Company, a domestic corporation; the Calion Land and Lumber Company,, also alleged, to be a domestic’ corporation, and C. Gr. Fletcher.
It is alleged ’ in’ the complaint that plaintiffs ’ ancestor executed a mortgage on the land in controversy to one Bass to secure a debt of $100, and that Bass attempted to foreclose tbe mortgage, but tbat tbe foreclosure was void for certain reasons set forth in tbe complaint, and tbat tbe defendants claim title to tbe land, or interests therein, under this foreclosure. It is alleged that tbe defendants bad cut valuable timber from tbe land, and there is a prayer for 'an accounting to ascertain tbe value of tbe timber .so taken.
It is alleged tbat tbe Calion Land and Lumber Company is a corporation organized under the laws of tbe State of Arkansas, with its principal place of business at Calion, in Union County. Summons was issued and served, tbe return showing service on tbe Gabon Land and Lumber Company at its place of business in the town of Calion.
Tbe Calion Land and Lumber Company appeared specially in tbe chancery court by its attorney for the purpose of quashing tbe service, and filed a motion'for tbat purpose, stating tbat it was not a domestic corporation, as alleged in tbe complaint, but tbat it was organized in tbe State of Missouri, and, after having entered tbe State of Arkansas for the purpose of doing business here, it bad properly been dissolved in tbe State of Missouri, and bad filed its certificate with the Secretary of State of Arkansas, withdrawing from this State.
This motion contains a statement tbat tbe chancery court was without jurisdiction of tbe corporation named, for tbe reason that it bad been dissolved. It is alleged in tbe petition filed here tbat this motion was not passed upon by tbe court, but tbat, on tbe filing thereof, tbe plaintiffs filed an 'amendment to tbe complaint, alleging tbat tbe Calion Land and Lumber Company bad, by proper deed, conveyed all.of its land and other property, including its interest in tbe lands in controversy, to tbe Calion Lumber Company, a corporation organized under tbe laws of this State to take over the assets of the Calion Land and Lumber Company, and the prayer of tbe amendment was that tbe Calion Lumber Company be made a defendant. The petition alleges that the eo-nrt is about to proceed to an adjudication of the cause with the motion of the 'Calion Land and Lumber Company un-disposed of, and that it is without jurisdiction to do so on account of the fact that the corporation had been dissolved.
It is clear that the relators have adopted an inappropriate remedy to raise the question concerning the correctness of the power of the chancery court to proceed against the Calion Land and Lumber Company. The jurisdiction of the court must, of course, be determined by the allegations of the complaint, and there is a distinct allegation that the Calion Land and Lumber Company is an Arkansas corporation doing business at Calion, Arkansas, and the corporation was brought into court by what purports to be valid service. The plea to the jurisdiction of the court, and the motion to quash, filed by the Calion Land and Lumber Company, raised the issue whether or not the corporation is defunct, and, if so, who had succeeded to its rights, but an erroneous ruling of the court on that motion, or a failure to rule, cannot be reached by a writ of prohibition. For an, error made by the court in that respect, the remedy to obtain a review by this court is by appeal. Brown & Hackney, Inc., v. Stephenson, 157 Ark. 470. The plaintiffs below are entitled to join as defendants in the action all parties who are alleged to be claiming interests, and, if the corporation named as one of the defendants has in fact been dissolved, that question must be raised by an appropriate plea in the chancery court. Where there are allegations in the complaint setting forth facts upon which the jurisdiction of the court may be properly based, the right of the court to exercise jurisdiction cannot 'be challenged by a writ of prohibition.
It follows therefore that the petition for prohibition must be denied, and it is so ordered. | [
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Wood, J.
This action was instituted in the Jefferson Chancery Court by the Arkmo Lumber Company, hereafter sailed company, against the appellee, as executrix of the estate of J. II. McClung, deceased, to recover from the estate upon an account in the sum of $992.75, for lumber and material furnished McClung at the request of his alleged agent, D. H. Scroggin. The company alleged that the material furnished was used in the construction of certain tenant houses and barns and improvements situated on the lands of MoClung, which are described in the complaint, consisting of 1,380 acres in Jefferson County, Arkansas. The company alleged that within three months after the account became due it filed in the office of the clerk of the circuit court the account, duly verified, together with a description of the property upon which the lien was claimed, after giving ten days’ notice in writing to D. H. Scroggin, agent, of such claim. The company prayed for judgment and that a lien be declared on the lands described, and that, unless the judgment be satisfied, the lands be sold, etc.
The company filed a supplemental complaint against the appellee in which it reiterated the allegations in its original complaint. It moved to have Scroggin made a party, which was done. The company, in its complaint against Scroggin, alleged that, in the year 1919, Scrog-gin was in the possession of the lands of MoClung, and represented that he had authority to purchase the material for making the repairs and improvements on the lands; that the company furnished the material at Scrog-gin’s request, and had taken necessary steps to establish its lien. It prayed in the alternative that, if it were determined that Scroggin was not the agent of McClung and not authorized by him to purchase the lumber, it have judgment against Scroggin for the amount of its claim, with interest.
The appellee answered, denying that the estate of her father, J. H. McClung, deceased, was indebted to the company. She denied that the company furnished any materials at the request or upon the authority of Mc-Clung or of Scroggin. She denied that Scroggin was the agent of, or that he had authority from, MoClung to order materials as set forth in the complaint, and denied that the alleged materials were actually used, or entered into the construction of improvements situated on the lands of McClnng. She denied all other material allegations ©f the complaint. By way of cross-complaint, the appellee averred that the alleged agent, Scroggin, was a tenant of McClnng, and that he falsely represented to the company that he had authority to purchase material and make the account on which the company’s action is based. She alleged that the action could not be determined without the presence of Scroggin, and prayed that he be made a party, and that if, upon final hearing, judgment should be rendered against the estate of McClung, it have judgment over against Scroggin.
Scroggin answered the appellee’s cross-complaint against him, and admitted that he was the tenant of Mc-Clung. He denied all other material' allegations, and set up, by way of cross-complaint against the appellee, that the estate of McClung was indebted to him in the sum of $1,428, with interest, for labor and material in repairs and improvements which he placed upon the lands of McClung under his authority and direction. Scroggin attached to his cross-complaint an itemized account, duly verified, for which he prayed judgment against the appellee as executrix of the McClung estate. The appellee denied the allegations of Scroggin’s cross-complaint.
The appellee moved to nonsuit the claim of the company on the ground that the same had not been duly authenticated and presented to the appellee, but, if so, then appellee averred that the company had not taken the necessary steps to entitle it to judgment and a lien on the lands under the statute.
There was introduced in evidence a “rent contract” entered into in March, 1918, between J. H. McClung, party of the first part, and D. Ii. Scroggin, party of the second part, by the terms of which McClung leased to Scroggin certain lands, including'the lands described in the complaint, except certain small tracts that were then under leases to other parties. The lease was for a term of five years, beginning January 1, 1919, and ending He- oember 31,1923. The consideration for the lease was the sum of $7.50 per acre for all lands then cleared or that might he cleared by consent of the parties. The consideration was to be evidenced by notes for one-fourtli of the annual rent, to be paid October first and fifteenth and November first and fifteenth of each respective year.
The lease, among other provisions, contained the following: “It is further mutually agreed by and between the parties hereto that the said party of the second part shall not have the right to construct any buildings or repairs or additions to any buildings or structures on said premises at the cost of the party of the first part, without his written consent first procured; and it is further agreed that the party of the first part shall not be responsible for any repairs, structures or improvements placed on said premises without such written consent, and that the cost thereof so incurred without such written consent shall be paid by the party of the second part, it being specifically agreed and understood between the parties hereto that the said party of the first part shall be liable only, in respect to repairs and improvements, for such repairs as he may himself desire to make and construct upon said premises and to the dwelling houses, which matter is left entirely to his own discretion, and for «uch other repairs as he may hereafter assume to pay for in writing, it being further agreed that no verbal contract for repairs shall be binding upon or create a liability against the party of the first part therefor.”
There was a further provision that a failure upon the part of Scroggin to comply with all the terms of the contract should, at the option of MeClung, constitute a breach and termination of the contract, in which event, if MeClung so elected, he could have the work and labor provided for in the contract done, and the cost thereof should constitute liquidated damages to be paid by Scrog-gin, in addition to the rents as provided for in the contract in the year in which the breach should occur; and, in case of a breach., McClnng' had the right to take immediate possession of the lands without process of law.
Notwithstanding this written lease, the appellants contend that it was the understanding between Scroggin and MeClung, at the time the written lease was executed, that MoClung was to place the premises in a good state of repair by .rebuilding such houses and barns as were necessary, and repairing and re-roofing all old barns and houses, so that the buildings on the leased premises would be in good condition and in good repair at the time Scroggin was to take possession on the first day of January, 1919; that, pursuant to this understanding between them, MoClung, who was in very poor health and therefore personally unable to supervise the tentative improvements which he contemplated before delivering the possession to Scroggin, entered into an independent verbal agreement with Scroggin in the fall of 1919, by which he authorized Scroggin, as his agent, to purchase the necessary material from the company and make the improvements' contemplated, to pay for the work, and, when it was completed, to send MeClung an itemized statement; and that MoClung agreed he would send a check to cover the amount thus expended for him by Scroggin.
On the other hand, the appellee contends that no such verbal agreement was entered into by MeClung and Scroggin, and that .Scroggin therefore was not the agent of MoClung, and had no authority to purchase the material from the company that went into the improvements.
1. This presents the first question in the case. It could 'serve no useful purpose to set out in detail the testimony that was adduced on this issue. Suffice it to say we have reached the conclusion that, if the oral testimony adduced by the appellants to sustain this issue is competent, then a decided preponderance of the competent testimony proves that Scroggin was authorized by MeClung to purchase the material from the company and to make the improvements on bis lands; that Mc-Clung constituted Scroggin bis agent for that purpose. We have held in several cases that the rule which excludes parol evidence for the purpose of varying a written contract is confined to the parties to the contract, and does not preclude a stranger to it from introducing such evidence. Talbot v. Williams, 31 Ark. 411; Gates & Bro. v. Steele, 48 Ark. 539; Barfield Mercantile Co. v. Connery, 150 .Ark. 428. In addition see Allen v. Roulan, 8 Ann. Cases, 347;. 10 R. C. L. p. 1020, § 213, and cases' cited.
Now the company was an entire stranger to the written contract between McClung and Scroggin. The company’s right to recover did not depend upon that contract. The company proved by Scroggin and seven other witnesses, whose testimony we do not feel at liberty to discredit, that McClung authorized and directed Scroggin to purchase the material for making repairs and improvements on his land. While the declarations of Scroggin would not he competent to prove his agency, and bis assumption of agency would not he sufficient to establish it, yet his testimony that be was the agent of McClung to make the improvements was competent testimony. The testimony of certain witnesses introduced on behalf of the appellee as to the statements of McClung at and after the time that bills were presented to him for the material purchased, and as to the contract between himself and Scroggin for repairs and improvements, and as to the effect of the presentation of the bills on his health, in the absence of any duly authorized representative of the company, was incompetent. These statements were not res gestae; they were not declarations against interest, but, on the contrary, were self-serving. This testimony was purely hearsay and incompetent. Hence we reach the conclusion that the company is entitled to recover from the estate of McClung, provided it has complied with the law for establishing its claim against such estate.
McCIung died in 1919. After Ms death, the account of the company against his e'state for the materials purchased was presented to his executrix on the 11th of September, 1919, and was disallowed by her. The demand against the estate of McCIung was not properly authenticated to establish the claim in favor of the company as a general creditor of the estate. ' The company is a corporation, and the statute requires that, in case of a debt due a corporation, the cashier- or treasurer shall make the affidavit for the verification of the claim. The affidavit here was substantially in the form required by the statute, but it was made by one H. M. Euart, and it is not recited therein, and not otherwise proved, that he was the cashier or treasurer of the company. Secs. 101 and 103, C. & M. Digest; Wilkerson v. Eades, 97 Ark. 296; Kaufmam v. Redwine, 97 Ark. 546; Saunders v. Rudd, 21 Ark. 519.
However, the company contends that, inasmuch as it was seeking the satisfaction of its demand, not as a general creditor out of the general assets of the estate, but by virtue of a lien for materials furnished for making improvements on specific property, it was unnecessary to make the authenticating affidavit required by §§ 101 and 103, supra, and that a compliance with § 6922, supra, would be sufficient.
This court has held that these sections of our administration laws which relate to the authentication of demands against estates before suits are brought refer alone to suits against executors and administrators, as such, to subject the general assets of estates to payment of debts; that, in an action to foreclose a mortgage executed by a decedent, it is unnecessary to probate the claim against his estate, and hence the authenticating affidavit is not required before filing a bill to foreclose the mortgage. Hall v. Denckla, 28 Ark. 506; Nicholls v. Barrett, 30 Ark. 135; Simms v. Richardson & May, 32 Ark. 297; McClure v. Owens, 32 Ark. 443. See also Edwards v. Hill, 59 Fed. 722. The same rule and principle, by analogy, is applicable to any action asserting an original, specific and absolute charge on land. The authentication and presentation of such, claims to the administrator or executor of an estate for allowance and payment through the probate court are not prerequisite to the maintenance of an action for the enforcement of a specific lien, the right to which the plaintiff acquired during the life of the decedent. It follows that the death of McOlung did not have the effect to deprive the company of its right to establish and enforce its lien against his estate, and that it mould do so, provided it complied with the requirements of the statute for perfecting its lien. In addition to the above authorities, see Richardson v. Hickman, 32 Ark. 407; Barber v. Peay, 31 Ark. 392.
Section 6922, C. & M. Digest, reads as follows: “It shall be the duty' of every person who wishes to avail himself of this act to file with the clerk of the circuit court of the county in which the building, erection or other improvement to be charged with the lien is situated, and within ninety days after the things aforesaid shall have been furnished or the work or labor done or performed, a just and true account of the demand due or owing to him, after allowing all credits, and containing a correct description of the property to be charged with said lien, verified by affidavit.”
The company filed an account in the clerk’s office of Jefferson County showing the description of the lumber, the amount furnished and the price thereof, amounting to the sum of $992.75. This account is designated “a mechanic’s lien in favor of the company against the property of J. H. MsClung, deceased, Bessie Cantrell, administratrix.” The account was verified by the affidavit of H. M. Euart, who stated that he,was.the duly authorized agent of the company, and knew, of his own personal knowledge, the facts set forth in his affidavit. He stated that the lumber and materials in the account were furnished within ninety days prior to the date of the filing of the account and were used in the erection and repair of the following buildings and improvements on land situated in Jefferson County (describing the land), the whole tract, hut not the improvements. He stated that the account was a just and true account of the materials furnished, and the demand due, after allowing all credits, amounting to the balance claimed, and that the description of the lands set forth was a correct description of the property to be charged with the mechanic’s lien. The record also shows that the company filed in the office of the circuit clerk of Jefferson County a notice to D. H. Scroggin, as agent of J. H. McClung, and Bessie Cantrell, as administratrix of the estate of McClung (and which was served on D. H. Scroggin but not on appellee), that the company had a claim for a mechanic’s lien against the following described property (describing generally the lands and the buildings located thereon), for the sum of $992.75 for materials furnished by the company to McClung, which material, the notice recites, was furnished for use in the construction and repair of the said buildings located upon the above described property, and the notice concludes: “You are hereby notified that, after ten days from date hereof, the Arkmo Lumber Company will file with the clerk of the circuit court of said county a just and true account of said demand, after allowing all credits, verified by affidavit.”
The appellee contends that the above proceedings were not a sufficient compliance with the statute for the perfecting of the company’s lien against the lands described in the claim for a lien, which are the same as those described in the complaint; that the same is defective as a lien because it fails to describe the specific improvements into which the materials entered, and the specific acre of ground upon which the improvements were situated.
This court, in the case of Conway Lumber Co. v. Hardin, 119 Ark. 43, held that there must be a substantial observance of the statutory requirements in order to perfect a lieu under the mechanic’s lien law. But the same case holds that a literal compliance with the statute is not required. The company furnished material, according to the proof of this record, under contract directly with Scroggin, the agent of MeClung. The company was therefore not a subcontractor under the statute (§ 6935, Crawford & Moses’ Digest), and was not required to give to the appellee, the executrix of the estate of MeClung, the ten days’ notice specified in § 7917, Crawford & Moses’ Digest. Leifer Mfg. Co. v. Gross, 93 Ark. 277.
The statute (§ 6906, C. & M.) provides that, upon complying with the provisions of the act, the parties mentioned shall have “a lien upon such building, erection or improvement, and upon the land belonging to such owner or proprietor on which the same are situated, to the extent of one acre.” It will be observed that the claim for a lien filed only describes the lands according to the government subdivisions constituting the MeClung plantation, consisting of 1,380 acres, more or less. It does not describe any particular tract or acre on which the buildings are situated, nor any particular building or buildings upon which the lien is sought to be established. A majority of the court have reached the conclusion that, while the mechanics’ lien law should be liberally construed with a view to advancing the remedy, nevertheless the account or claim for a lien is too vague and indefinite, since it does not describe the particular land or the particular buildings upon which the lien is sought to be established, and it does not, therefore, comply with §§ 6906 and 6922, Crawford & Moses’ Digest. Bedsole v. Peters, 79 Ala. 133; Montgomery Iron Works v. Darman, 78 Ala. 218; Ransom v. Sheehan, 78 Mo. 668; Wright v. Berdsley, 69 Mo. 548; Williams v. Porter, 51 Mo. 441.
The majority does not mean to say that either the acre of land on which the lien is sought, or the building thereon, must necessarily be described in any particular form. All that is essential is that the acre of land or the building be designated in sucli language as will afford information concerning the situation of the property to he charged with the lien. Of course, if the building be described so as to properly designate its location, this is sufficient, for the statute itself fixes the quantity of land to be charged.
The writer, however, is of the opinion that the correct rule, supported by the better reason as well as the weight of authority, is announced in 27 Cyc. 159, as follows: “As a general rule the fact that the claim or statement describes more land than is subject to the lien does not defeat the lien as to the land properly subject thereto, if there is no fraudulent intent and no one is injured thereby; and, where the tract on which the improvement is erected is of greater area than the statute allows to be subjected to the lien, a claim or statement describing the entire tract is sufficient, and it is not necessary to specifically describe a portion thereof which is of the permitted area, as in such case it is for the court to decide what portion of the land is to be subjected to the lien.” See many cases cited in note to text. A majority of the court therefore has reached the conclusion that, as between the company and the estate of McClung, the company is not entitled to recover. The writer, however, is of the opinion that the company has established its claim for a lien; that the particular acre and the particular buildings could have been delineated by the testimony at the hearing.
2. While the company is not entitled to recover from the estate of McClung, it does not follow that it cannot recover from Scroggin. The company alleges in its complaint against Scroggin that he falsely represented to the company that he had authority from Mc-Clung to purchase the lumber; and materials for which a lien is claimed. Scroggin denies that he falsely represented that he was the agent of McClung, and avers that he was the dulv authorized agent of McClung to purchase the materials in controversy. It is conceded there fore that Scroggin purchased of the company the material in controversy. The testimony of Scoggin on this issue was to the effect that he was the agent of McClung, and had authority to, and did, purchase the materials as such agent, and the testimony of seven witnesses tended to corroborate his testimony, which, as we have seen, was sufficient to establish that fact as between the company and McClung, because the appellee, as executrix of the McClung estate, could not use the written contract between McClung and Scroggin to rebut such testimony. It was incompetent for that purpose because it was 'in the nature of self-serving evidence, and the company was not privy to it, nor bound by it. But in the action between the company and Scroggin the contract between Scroggin and McClung is competent to rebut the testimony of Scroggin. Scroggin admitted that he executed this contract, and, as we construe the contract, it forbids Scroggin from acting as the agent of McClung in making the repairs and improvements on the McClung planta^ tion, unless authority to act as such agent was given by McClung in writing. The contract in the action between the company and Scroggin was in the nature of a declaration or admission against his interest, and it was entirely competent for the purpose of controverting the testimony of Scroggin and proving that he did not have the authority he claimed to have to purchase the materials in controversy as the agent of McClung.
A majority of the court therefore are convinced-that a preponderance of the evidence proves that Scrog-gin did not purchase the materials of the company as the agent of McClung. Scroggin therefore was liable to the company, and the trial court ruled correctly in so holding.
3. This, brings us, in the last place, to the question as to whether or not Scroggin is entitled to recover on his cross-complaint against the estate of McClung. Scroggin alleged that he had expended for materials and labor in making repairs and improvements on the Mc-Clung plantation the sum of $1,428.89. The appellee de- niecl liability, and in defense of this claim of Scroggin set up the written contract, supra, between McClung and Scroggin, and .contends that to permit Scroggin to establish his claim by oral testimony is to contravene the familiar rule that oral testimony cannot be introduced to contradict, add to, or modify the terms of a written contract. The lease contract was for five years, and therefore within the statute of frauds, § 4862, subdiv, 5, C. & M. Digest. A contract which the statute of frauds requires to be in writing cannot be contradicted, modified or changed by a subsequent oral contract. "We have often ruled that parties to a written contract may abandon the same by subsequent parol agreement, or they may rescind it in part or m toto, by substituting a new agreement therefor. Thompson v. Short, 157 Ark. 314; Caldwell v. Dunn, 156 Ark. 126, and cases there cited.
Scroggin invokes the doctrine of these cases to justify the introduction of parol testimony to prove that he and McClung, after the written contract was executed, entered into an oral contract by which McClung authorized him to make the repairs and improvements upon which the claim is based. But an examination of the above cases will show that the doctrine therein announced was concerning contracts which, to be valid, were not required to be in writing. The law is aptly stated in the case of Boyd v. Big Tree Ranch Co., 133 Pac. (Cal.) 623-624, as follows: “Were it possible to make an oral modification of a contract which, by the statute of frauds, is required to be in writing, and enforce such oral modification, the door would be open for the perpetration .of such frauds as the statute seeks to prevent. If the contract is in writing, though not required to be, as where the subject-matter is not within the statute of frauds, it may of course be changed by new subsequent agreement in writing.” Bonicamp v. Starbuck, 106 Pac. (Okla.) 839; Augusta So. Ry. Co. v. Smith, 33 S. E. (Ga.) 28-29; 1 Beach on Contracts, § 577; Browne on Statute of Frauds, § 411; 29 A. & E. Ency. of Law, and other authorities cited in appellee’s brief.
McClung and Scroggin could have entered into a valid parol contract for the repairs and improvements on the McClung plantation, but they did not elect to do so. They chose to embody the' contracts as to repairs and improvements in the written contract of lease. Having thus made it a part of the written contract of lease, they could not afterwards take it out and substitute a new parol contract as to the improvements without modifying the written lease contract, which the statute of frauds required to be in writing. The contract was executed in March, 1918, and took effect in January, 1919. Scroggin made the improvements and repairs after he took possession under his written contract. These repairs and improvements grew out of his relation to McClung as a tenant, and were referable to the written contract. This lease contract could not rest partly in writing and partly in parol. It had to be in writing, • and, if the provisions as to the repairs and improvements were taken out, it would have the effect of destroying the mutuality of the entire contract, for it could not be said that the parties would have entered into the contract but for these provisions. The provisions of the contract as to the repairs and improvements leave no doubt that it was the intention of McClung that, after the contract took effect, no improvements could be made upon the plantation by Scroggin except such as were made by his written consent.
A majority of the court therefore are convinced that Scroggin has not established his claim against the estate of McClung* bv anv competent testimony, and the trial court ruled correctly in so holding,’. The decree is therefore i.n all things correct, and it is affirmed. | [
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McCulloch, C. J.
Appellant was tried before a justice of the peace on imformation charging the offense of transporting whiskey, in violation of the statute which makes it unlawful for any -person “in any manner to transport into this State or from one-place to another place in this State * * * any alcoholic, vinous, malt, spirituous or fermented liquors or any compound or preparation thereof, commonly called tonics, bitters or medicated liquors * * Crawford & Moses’ Digest, § 6165.
Appellant was convicted, and prosecuted an appeal to the circuit court, where he was again convicted, and a fine of $100 imposed.
The offense is alleged to have been committed in the city of Hope. The sheriff of the county testified that he went to the store of a Mr. Wiggins to “make a search,” and that, as he was leaving the store, he saw appellant enter with a heavy overcoat on, which aroused his suspicion, as the weather was warm, and that he searched appellant and found in his pocket a pint bottle of whiskey. The sheriff and other witnesses testified that appellant stated, at the time the whiskey was found on his person, that he was carrying it home for the use of his wife, who was sick. The sheriff testified that appellant must have brought the whiskey, into the store with him, because he saw him walk into the store' and he had no opportunity to secure it after he got in there before it was found on his person. There was no objection made to this testimony, but the contention isfhat'.the..testimony is not sufficient to sustain the verdict.
We think that the testimonv is leg-ally sufficient. It shows that appellant had in his possession a bottle of whiskey, which he was carrying to his home. The testi mony does not show where appellant obtained the whiskey, but that is unimportant, if he was transporting it from one place to another within the meaning of the statute. The transportation of the liquor had 'commenced and was in progress, for, as before stated, appellant evidently had the whiskey in his possession when he came into Wiggins’ store. According to his own confession he was transporting it to his home, and the fact that he was temporarily stopping in the store does not take the act of transportation out of the operation of the statute. The law applicable to the case is fully stated in the recent case of Locke v. Fort Smith, 155 Ark. 158, and leaves little to be said. In that case we stated the law as follows:
“From the language used the court is of the opinion that the Legislature only intended to make criminal the removal of intoxicating liquors from one locality in the State, or in va city or county, to another locality in the State, or city or county. These places must be separate and distinct from each other, or the offense under the statute is not complete. To constitute the offense, the liquor must be in the act of being conveyed from one objective point to another. The name of one or even both of the places might be unknown, but it must be shown, inferentially at least, that the defendant was in the act of carrying the intoxicating liquor from one place or locality to another in order to render him guilty under the statute * *
It should be added to. what was there said that the statute does uot specify, directly or indirectly, the extent of the change brought about by the transportation in order to constitute the. offense, nor specify the distance it must be transported. The words “from one place to another in this State” mean, of course, a substantial change in the situs of the liquor. A slight and unimportant movement, of course, would not be sufficient, bu4 a transportation from one place to another in a city or town, or elsewhere, is sufficient to constitute transportation. The manifest purpose of the law was to obstruct the traffic in liqnor by making' it unlawful to transport it, even by one who had received it in possession without violating the law. In other words, the present case is illustrative of the scope of the statute, and we think that where, as in this instance, appellant procured whiskey at some place in the city of Hope and transported, or was in the act of transporting, it to his home in the same city, this constituted transporting within the meaning of the statute.
Counsel for appellant asked the court to give an instruction as to what constituted transportation, and this instruction was a correct declaration of the law, but it was fully covered by another instruction given by the court of its own motion. The charge of the court was, we think, accurate in every respect, and we find no error in the record.
The judgment is therefore affirmed. | [
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McCulloch, C. J.
Charles H. Sevick, one of the appellees, was the owner of several small manufacturing plants in White County, one a veneer mill at Higginson, and four sawmill plants, one at Walker, one at Higgin-son, one at Crosby, and another at West Point. iSevick owned the real estate on which some of the plants were situated, and was also the cwner of certain other real estate used in connection .with the plants.
In January, 1922, Sevick executed two separate bills of sale conveying all of the property mentioned above to W. T. Riner, his co-appellee. The two bills of sale were executed contemporaneously, and were properly placed of record in White County. Each of the conveyances mentioned a consideration of the sum of one dollar “and other good and valuable considerations, the receipt of which is hereby acknowledged.”. On the date of these conveyances appellee Riner executed a mortgage to the Nebraska National Bank of Omaha to secure a debt of $24,500. Appellants were creditors of Sevick, and, soon after the filing of the bills of sale, they commenced tin’s action in the chancery court of White County to cancel the conveyances to Riner as in fraud of the rights of Sevick’s -creditors. Sevick and Riner were both made defendants, and later the Nebraska National Bank filed an intervention asking that its mortgage executed by Riner be foreclosed, the interplea containing an allegation that no part of the debt had been paid.
The answer in the case contained appropriate denials of the allegations of fraud in the sale from Sevick to Riner, and also contained allegations that the real consideration for the purchase was the sum of $24,500 and the assumption by Riner of certain debts of Sevick to third parties in the sum of approximately $4,000, making a total consideration of about $28,000.
It appears from the allegations of the answer and also from the proof adduced by the appellees that, prior to the execution of these conveyances, Sevick was indebted to the Nebraska National Bank in the sum of $24,500, which had been carried by the bank for some time, and was past due. Sevick was anxious to dispose of the property in order to raise funds to pay the debt of the bank, was seeking a purchaser to raise funds for that purpose, and was being assisted by the bank to find a purchaser. Riner was employed by one of the officers of the bank in service not connected with the bank, but Riner’s employers suggested to him the purchase of this property and the operation of it. After thorough exaim ination, Riner decided to purchase the property, and entered into negotiations with Sevick, and the purchase was consummated by the two conveyances mentioned above. The payment of the purchase price was made, according to the testimony, by the extinguishment of the debt of Sevick to the bank and by the execution by Riner of a note and mortgage to the.bank for the amount of the original indebtedness of Sevick.
There was a receiver appointed by the court, on the application of appellants and over the protest and objection of appellee Riner.
On the final hearing of the cause upon oral and documentary evidence the court rndered a decree dismissing the complaint for want of equity, and adjudging the costs, including the expenses of receivership, against appellants, who have prosecuted an appeal to this court.
There was a conflict in the testimony. At least the state of the testimony is such that different inferences might have been drawn from it as to the good faith of the transaction, but we have reached the conclusion that the evidence is sufficient to support the finding of the chancellor and to justify the decree which was rendered. In the first place, it is not satisfactorily shown that Se- vick was insolvent at the time of these conveyances. The finding of the chancellor on this issue is not against the preponderance of the evidence. Nor does the evidence preponderate to the effect that the transaction was not made in good faith, nor that the consideration was inadequate. There is a wide conflict in the testimony as to the value of the property at the time of the conveyance. The testimony adduced by appellants tends to show that the aggregate value of the property may have been as high as $37,000, whereas much testimony was introduced on this subject by appellees, and in that testimony the lowest value was fixed at about $22,000. There is abundant testimony which justifies a finding that the value of the property was not appreciably more than $28,000, the price paid by Riner to Sevick for it. Certainly the preponderance of the evidence does not justify the finding that the value was sufficiently in excess of the purchase price as to manifest bad faith. The principle is elemental that mere inadequacy of price is hot of itself sufficient to establish fraud. While it cannot be said that the testimony in the case fixes a definite value beyond question, it is sufficient to .show that the price was not grossly inadequate. We therefore agree with the chancellor in his finding that there was not sufficient testimony to establish fraud in the transaction.
It is also contended that the sale is void because-it falls within our statute commonly known as the “bulk sales law” (Crawford & Moses’ Digest, § 4870 et seq.). The statute in question is entitled, “An act to prevent the fraudulent sales of stocks of merchandise,” and the first section provides that sales or transfers “in bulk of any part of or the whole of a stock of merchandise, or merchandise and the fixtures pertaining to the conduct of any such business, otherwise than in the ordinary course of trade-and in the regular prosecution of the business of the seller,” shall be void unless a notice to the creditors be given and the sale otherwise be made in accordance with the terms of the statute. It is clear, from the language used, that the purpose was to regulate bulk sales of merchandise as a part of the stock of -a mercantile establishment. It has no application to a manufacturing plant which sells its product merely as an incident to the business. That was evidently the thought in the minds of the court in the cases of Fiske Rubber Co. v. Hays, 131 Ark. 248, and Robbins v. Fuller, 148 Ark. 173, though the precise question now under consideration was not involved in that case. Other courts have so interpreted similar or identical statutes. Balter v. Crum, 199 Mo. App. 380, 203 S. W. 507; Cooney, Eckstein & Co. v. Sweat, 133 Ga. 511, 66 S. E. 257; Wright v. Hart, 182 N. Y. 330, 75 N. E. 404; Everett Produce Co. v. Smith Bros., 40 Wash. 566, 82 Pac. 905.
In the present case the merchantable property consisted of logs and lumber of small value compared to the aggregate value of all of property conveyed, and it is quite clear, we think, that the bulk sales law has no application to it.
Finally, it is contended that the chancery court erred in decreeing the costs, including the expenses of the receivership, against appellants. The receiver was ap- ' pointed over the protest of appellees, and the appointment turned out to be unwarranted, for the reason that the appellants failed to make out their case by sufficient testimony. It is not a case where the title to the property itself was in controversy and the appointment of the receiver was for the purpose of its preservation and protection against damage, but the receivership was .to sequester the property so as to subject it to the payment of appellants’ claims. We are already committed to the rule that the question of imposing the burden of the costs of a receivership is, to some extent, one of discretion of the courts, and that that discretion will not be disturbed unless there has been a clear abuse. Myers v. Hines, 122 Ark. 320. While there is some contrariety in the authorities on this subject, our decisions seem to be in entire accord with tlie weight of authority. High on Receiver', § 809-A; 1 Clark on Receivers, § 850.
Finding no error in the -decree, it is in all things affirmed. | [
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Wood, J.
This action was instituted by the appellant against the appellee to recover the sum of $1,000, the amount of the policy of insurance which appellant alleged it had been compelled to pay to Mrs. Ransomi. The. appellant alleged it issued its policy and mailed the same from its home office at Louisville, Kentucky, to its agent, Coffee, at Clarksville; that with the policy was inclosed a receipt which reads as follows: "Policy No. 87363 for Isaac H. Ransom has been received by me while in sound health, is as represented, and is satisfactory.
"Insured. 1920
"Date policy delivered..”
"Also inclosed with the policy was the following direction to the agents: ‘Agents must have this receipt dated and signed by policy owner and mailed immediately to home office’.”
Pasted to the policy was a green slip which provided:
"This policy shall not take effect until it shall be personally received by the applicant and satisfactory settlement of the first premium has actually been made, all within the lifetime and during good health of the applicant. If the applicant is not in good health at the time the policy is received, it should be held subject to the company’s order, and notice to that effect immediately sent to the company at its home office in Louisville, Ky.”
The appellant alleged that Coffee, in violation of his contract as agent and contrary to instructions as above set forth, tore from the policy the notice as above set forth, and failed and refused to present the receipt as set out above; that the agent knowingly and fraudulently failed to present the receipt to Ransom, because such agent knew at the time that Ransom was suffering from a fatal sickness; that bv such negligence and fraudulent conduct on the part of Coffee he permitted a valid contract of insurance to be consummated imder which the appellant was compelled to pay the sum above mentioned. for which it asked judgment.
The appellee, in his answer, admitted that he was appellant’s agent under a contract 'which became effective on the 13th day of August, 1920, which contract was signed by the appellee and Fred W. Bailey, State agent of the appellant for Arkansas. He admitted that, on the 13th day of July, 1920, Isaac H. Ransom made application to the appellant for a policy of insurance upon his life, and denied the other material allegations of the complaint.
The testimony for the appellant tended to prove that the manager of its Southwestern Department, which embraced in its territory the States of Arkansas ■and Oklahoma and seventeen counties in Tennessee, was Fred W. Bailey, with office at Memphis, Tennessee. He testified that he was general manager of all local agents in Arkansas, so far as producing business is concerned. He gets all the local agents and manages them. He made the contract with appellant, subject to the approval of Ms company, which contract the company approved. This contract, among other things, provided: “The agent agrees that he will not deliver a policy of insurance where he has reason to believe that a change has occurred in the applicant’s health or other conditions have arisen that would affect the desirability of the risk, but that he will return the policy to the home office and await instructions.” The appellant also had a contract with agents in the Arkansas territory, Baker and Kavanaugh, which contract was a duplicate of that of the appellee. Bach of these agents was furnished a rate book which contained, among others, the following instruction: “A. If any unfavorable change has taken place in applicant’s health, occupation, surroundings or family history since he was examined,, the agent must not accept premium and deliver policy, but must promptly return policy to home office,” etc.
The appellant issued two postcard receipts with each policy, one of which was to be returned to the State agent at Memphis, and the other to the home office at Louisville. The form of the receipt is as above set forth. It was the duty of the local agent to have the receipt dated and signed by the policy owner and to mail the same to the home office. The appellant issued a policy upon an application of Ransom, which was taken by its agents, Coffee and Kavanaugh. Kavanaugh was directed by the manager at Memphis to go to Clarksville and assist Coffee in securing applications. Witness was asked why Kavanaugh would be working with some new man and in what particular he gave the new man instructions, and answered, “Nothing other than he familiarized himself' with our various policy forms and how the rates were figured and the settlements made— how we filled out applications and what disposition was made of them when they were filled out, and what -disposition was made of the policy, and the way it was delivered when the policy was issued.” He was asked the. following question: “Did Mr. Kavanaugh have any authority to direct Mr. Coffee in regard to what his contract of agency was or meant?” and answered, “No, he didn’t have any authority. He just showed him the way that we done it — the way we handled business.” The only object of Kavanaugh’s work with Coffee was to assist Coffee in producing business.
The policy insuring the life of Ransom for $1,000, hi-s wife being the beneficiary, was mailed from the office at Memphis. The application was secured on the 13th day of July, 1920. At that time Ransom was engaged in the coal.mining business, a hazardous occupation, and on that account the appellant did not issue the particular kind of policy 'called for in his application, but instead mailed to its agent, Coffee, a different kind of policy from that applied for, with directions to deliver the same to Ransom. Pasted in the policy when it was mailed out was the notice set out above. The appellant never received the postcard receipt above mentioned which was to be signed by the insured and sent to. its manager. At the time the application was procured Ransom was in good health, but before the policy was received by the appellee for delivery Ransom was stricken .with typhoid fever. Coffee did not deliver the policy in person to Ransom and take a receipt therefor, but instead gave the policy to one Mardis, an employee of Ransom, and directed him to deliver the policy to Mrs. Ransom. Coffee knew at the time that Ransom was sick.
It was shown on behalf of the appellant that Coffee said he tore off the green slip pasted to the policy and had not had the receipt card signed, giving as his reason that he was not going to permit Mrs. Ransom to forge Ransom’s name on the card when Ransom was sick. It was also proved that at the end of a lawsuit the appellant had to pay Mrs. Ransom the amount of the policy, which the appellant here seeks to collect from the appellee.
Kavanaug’h testified on behalf of the appellant that lie lived in Memphis; that-he had the same contract with the appellant that Coffee had. He worked with Coffee in Johnson County to produce business -for both of them. He was not giving Coffee any instructions. Sometimes he was sent out of the Memohis office, and other times went of his own accord. Bailey, the manager, suggested that witness go over to Johnson County — that he could get business over there. -Witness’ and Coffee’s names were signed to the application.
The appellee testified that he had'a conversation with Bailey about the agency. He supposed Bailey approached him because of his connection with the Bank of Clarksville. He had verbal agreement with Bailey that lie'was to take’the agency of the appellant in Johnson County with men whom Bailey would send. Those men were usually termed “high power” or “high pressure” men whose'business it would be to solicit and sell insurance to people to whom witness would' introduce them. Appellee was to introduce them to at least ten men per day and was to share in the profits of the business they wrote. Kavanaugh came' and spent about three weeks with the appellee. Baker came into the county and was- working with another agent at Cabin' Creek. Appellee introduced Kavanaugh to Ransom, and Kavan-augh-signed appellee’s name to the application. Appel-lee received the policy on the 25th of August, 1920. Mardis, who was in the employ of Ransom, told appellee that he thought Ransom was sick, and that he was going by to see him. Appellee hardly knew what to do about it, since Mardis said that Ransom was sick. After consulting with Baker, he asked Mardis if he would take the policy with him and turn it over to Mrs. Ransom. The policy received was not the kind that Ransom had applied for, and the appellant had written Kavanaugh with reference to it, and Kavanaugh inclosed that letter to appellee with the following note. “Mr. Coffee: I would show this letter to Mr. Ransom, and if he does not accept this contract he is certainly foolish, for it is the very best any good company will do for him. With personal regards to yourself and Mrs. Coffee, I remain, 0. C. K.” Also in the letter was the following: “I trust that you will make this clear to Mr. Ransom, and that you will be successful in delivering same, or, as per our talk, you might get Mrs. Ransom to carry same herself for the boy in case he will not carry it.” That letter had been received by the appellee before he gave the policy to Mardis to give to Mrs. Ransom,. Appellee requested Mardis to hand the policy to Mr. or Mrs. Ransom, but to tell them not to sign this receipt for it, because appellee didn’t consider it as a delivery, and the receipt was worded in such a way that they would have had to sign a falsehood, should they sign it, and appellee didn’t want that to happen. The agents had a period of sixty days in which to make delivery of policies, and at the end of that time had to make delivery or settlement and return the policies to the company. Appellee further testified that he didn’t recall that he had told any one that he had torn the green slip out of the policy. He didn’t remember whether the green slip was in there or not when he gave the policy to Mardis. He turned the policy over to Mardis, not to be. delivered to the Ransoms, but merely to submit to them for approval or rejection, because it was a different policy than he had applied for, and Ransom had a right to exercise Ms judgment as to . whether lie would -take, a different policy from that applied for. Appellee didn’t make any further inquiries to find out the condition of Ransom, nor did he say anything to Mardis about getting the policy hack.
On cross-examination appellee further stated that he testified in the litigation between Mrs. Ransom and the appellant, and that, if he testified in that case that he tore the notice out, it ivas correct; that the notice was not a part of the policy at all. It was only a notice to the agent, and witness thought it would not affect the policy if it was torn out. It was only a notice to the appellee as to the disposition to be made of it. If witness removed it. he had a. right to do so, and put it in his pocket or on Ms file. Further along in his testimony witness stated that the agents had a right to leave the policy with the applicant for insurance sixty days for approval or rejection; that it always had been appellee’s custom.
The appellant in a number of instances sent a different policy than was applied for, and the policies were submitted to the applicants for their approval or rejection. The testimony of Mardis, Mrs. Ransom and witness Cobb, who were present when Mardis gave the policy to Mrs. Ransom, was to the effect that Mardis turned the policy over to Mrs. Ransom and told her that Coffee had sent it to her to look over; that it was -sent for their approval or disapproval, and that the receipt was not to be signed because Ransom was sick.
At the conclusion of the testimony the appellant asked the court to direct the jury to return a verdict in its favor, which prayer for instruction the court refused, and to which ruling the appellant excepted.
Among other instructions, the court on its own motion gave the following:
“4. The court instructs you, gentlemen of the jury, that, under the terms of the contract here and under the evidence, Mr. Coffee was tire agent of tlie InterS.oúthern Life Insurance Company to deliver tliis policy. The court instructs you that this policy was delivered under the law.”
And also instruction No. 5, which, in effect, told the jury that the only question for them to consider was whether or not the policy was delivered intentionally or by mistake or inadvertence, and, if delivered by mistake or inadvertence, whether such mistake or inadvertence was caused by Coffee undertaking to carry out instructions delivered to him by any person who had any au-tliority to direct him in the premises. In this instruction the court told the jury that if Coffee delivered the policy by mistake, that is, if he didn’t intend to deliver it while the man was sick, 'he would be responsible to the company for such mistake or inadvertence, unless, in making shell mistake, he was carrying- out instructions of some agent of the company who had authority to direct his actions.
Among other prayers for instructions, the appellee asked the following: “If you find from the evidence that the defendant did not deliver the insurance policy to the deceased. Isaac Ransom, but sent it to Mrs. Ransom to be examined and approved by her before accepting it, then y'ou are instructed that the plaintiff can not recover, hud your verdict should be for the defendant.” The court refused this prayer.
The jury returned a verdict in favor of the appel-lee against the an-nellnnt. Judgment was rendered in his favor, from which is this appeal.
■■ The coui’t erred in giving instruction No. 4 on its own motion, because, under the evidence, it was an issue for the jury to determine whether or not the policy was delivered to Ransom, and the court should not have declared that, under the law, the policy was.delivered, and should have given the prayer of appellee above mentioned. However, instruction No. 4 was in favor of the appellant, and it could not, and does not, complain because the court gave it. But appellant contends that, after the court gave this instruction, it should have further de-. dared as a matter of law that, under the terms of the contract of agency, which were written and unambiguous, there could be no recovery in favor of the appellee against the appellant for the reason that the contract of agency forbade the appellee from delivering the policy when he knew that the insured was not in good health at the time the policy was delivered. This contention of the appellant cannot be sustained. While the contract of agency, and the receipt to be signed by the insured when the policy was delivered, and what is called the green slip attached to the policy, all provided, in effect, that there was not to be delivery of the policy while the insured was in bad health, nevertheless, there was testimony in this record which warranted a finding that the policy was delivered by the appellee to Mrs. Ransom, not for the purpose of consummating a contract of insurance between appellant and Ransom, but only for the purpose of permitting Ransom to look over the policy to see whether same would be accepted by him. There was testimony on behalf of the appellee tending to prove that, before he sent the policy to Mrs. Ransom, lie received the- letter from the Memphis office' inclosing the policy; that this policy was not the same as the one applied for by?' Ransom; that the letter contained directions to show the letter to Ransom, stating that'if he didn’t accept the contract inclosed he was certainly foolish, for it was the veiy best any company would do for him. The letter contained the statement: “I trust you will make this clear to Mr. Ransom, and that you wili be successful in delivering same, or, as per our talk, you might get Mrs. Ransom to carry same herself for the ■boy in case he will not carry it.” When this letter came, the appellee states that he did not know what to do about it, but, after talking with another agent, he concluded to send it to Mrs. Ransom for her approval or rejection. Appellee testified 'that he instructed-his messenger to hand- the -policy to Mr. or Mrs. .Bansom, but to tell- them not to sign the receipt because -the appellee didn’t consider the same- a delivery, and he didn’t want them to sign the receipt, because if they did they would be telling a falsehood, which he didn’t want to happen. He testified that Ransom had said distinctly that he wouldn’t accept that kind of a policy, and that his purpose in sending the same to them was, not as a delivery, but merely to submit to them for approval or rejection, because it was a different policy than that Bansom applied for. He further stated that Ransom had a right to keep the policy sixty days to see whether he wanted it or not; that the agent had that right; that it had always been appellee’s -custom. He further testified that the appellant in a number of instances had submitted policies to applicants in this way for their approval or rejection.
The above-testimony of the appellee, which was not disputed, and other testimony set forth above which it is unnecessary to further reiterate, justified the court in submitting the issue to the jury, as to whether -or not the delivery of the policy by the appellee was through a mistake or inadvertence on the part of appellee, and, if a mistake, whether or not it was -caused by underták-ing to carry out the instructions of those who had authority to direct him in the premises. Under the contract of -agency between the appellant and the appellee the appellee was intrusted with the duty of delivering policies, and, if he made a mistake, intentional or unintentional, in delivering the policy to Ransom, contrary to the contract of agency, resulting in damage to the appellant, he would be liable for such damage. Since Mardis was the messenger selected bjr the ap-pellee, any mistake that Mardis may have made in delivering the policy in violation of the contract of agency, appellee would be responsible for. Inter-Southern Life Ins. Co. v. Ransom, 149 Ark. 517-527. But the undisputed testimony shows that Mardis carried out strictly the directions of the appellee. He delivered the policy to Mrs. Ransom with -instructions that he did so for the purpose of enabling them to look it over to see whether or not they would approve it. As we have already stated, under the evidence in this record the court erred in declaring as a matter of law that there had been a delivery of the policy. But, conceding that there was a delivery, such, delivery would not make the appellee liable to appellant for a breach of the contract of agency where the appellee delivered the policy under instructions of agents of the appellant who had authority to direct him in the premises. If the appellee delivered the policy under such circumstances, he was not liable to the appellant for so doing. Under the testimony this was an issue of fact for the jury.
The instructions of the court are not happily drawn, but it cannot be said that they are prejudicial to appellant. We are convinced that the court did not err under the evidence in refusing appellant’s prayer for a peremptory instruction. The appellant did not ask any other prayers for instructions.. The court did not err in submitting to the jury the isue as to whether or pot the appellee, under the testimony, was liable to the appellant, and it occurs to us that the charge of the court, considered as a whole, fairly submitted this issue to the jury. The judgment is therefore correct, and it is affirmed. | [
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McCulloch, C. J.
Appellant and appellee, together with one other person, were candidates for the Democratic nomination for sheriff of Lincoln County at the primary election held on August 8, 1922, and, on the face of the returns made by the judges of election, appellant received a plurality of eight votes, but the county central committee recounted some of the votes and in other respects inquired into the returns and found that ap-pellee had received a plurality of one vote, and certified the "latter’s nomination.
Appellant instituted this action in the circuit court of Lincoln County, and, on the hearing of the cause, judgment was rendered in appellee’s favor, reciting that he had received a plurality of thirty-two votes.
- Appellant alleged in his complaint, as grounds for contest, that the committee did not certify appellee’s nomination until after the expiration of the time provided by law for the certification of nominations, and also that in one of the townships ten qualified electors who offered to vote for appellant had been rejected. There is an allegation in the complaint with respect to fraudulent votes being cast by persons lacking qualifications as voters.
Appellee answered, denying the allegations of the complaint with respect to fraudulent votes, and also alleged that there were returned by the election judges votes cast for appellant by persons whose qualifications were not shown by the returns and whose names did not appear on the certified list of electors. The answer also contained a statement that the rejected voters set forth in appellant’s complaint were not qualified electors, in that they had, contrary to party rules, voted against the nominees at the previous election.
Appellant filed a motion to strike out the affirmative allegations of the answer with respect to charges of illegal voting, on the ground that these allegations constituted a cross-complaint, 'and that such an attack could not be filed except within ten days after the date of the certificate of nomination, and must be supported by the affidavits of ten qualified electors. The court overruled the motion, and appellant saved his exceptions.
The election under inquiry and the contest involved in this appeal was held under an initiated statute adopted by the people, and now found in Crawford & Moses’ Digest, § 3757 et seq. Section 3772 provides that the complaint in a contest “shall be supported by the affidavit of at least ten reputable citizens, and shall be filed within ten days of the certification complained of. ’ ’ We have decided that this statutory requirement is jurisdictional, and must be complied with in order to support the contest. Logan v. Russell, 136 Ark. 217.
The contention of counsel for appellant is that the allegations in the answer containing countercharges‘are, in effect; a contest of the election on cross-complaint, and that'the statute applies. We do not think so, and the decision of this court in Ferguson v. Montgomery, 148 Ark. 83, appears to be against the contention of counsel, though the point is not expressly decided. The opinion shows that there were similar allegations in the answer, or cross-complaint, of the defendant with respect to fraudulent or illegal votes in townships other than those named in the complaint, and, without deciding the point expressly concerning the application of this statute, it was held proper to investigate charges thus made in order to determine which of the parties had rightfully received the nomination. In the opinion attention is called to the fact that “the real inquiry in election contests was as to whether the contestant or the respondent received the highest number of legal votes, and was not confined to the ground specified in the contestant’s notice of contest,” citing Govan v. Jackson, 32 Ark. 553. Continuing, the court said: “,So here the object of the pleadings was to produce a single issue, and that issue was whether or not certain illegal votes of a designated kind had been received at the primary election. ’ ’
The contestee, or defendant, in such a contest is not required to file the affidavit for the reason that he holds a certificate of nomination and is not in a position to contest the result of the election. Being the holder of a certificate of nomination, he cannot initiate a contest, and any allegations made by him in a contest instituted by an adversary are necessarily matters of defense, whether presented in an answer or in the form of a cross-complaint. A contestee, for the purpose of raising issues of fact concerning the true result of an election, may present new matter without being required to comply with the statute with respect to the time and manner of instituting the contest. Our conclusion is therefore that the point made by appellant cannot be sustained.
It is next urged that the certificate of nomination-issued to appellee was void because it was made by the committee after the expiration of the time provided by law. The statute (Crawford & Moses’ Digest, § 3767) provides that the central committee shall convene at noon on Friday following the primary, and that the returns-shall be delivered to the committee on or before that time. Section 3768 reads as follows:
“If the returns and ballots -of any precinct are not then delivered, the committee shall send any peace officer for the returns and ballots, and the peace officer' so’ selected is authorized to take the same forcibly, if necessary, from any one in whose possession they may he, and immediately bring the same to said committee. If all returns and ballots are not before the committee by Friday noon, it may adjourn until it receives them, not later -than Saturday noon. The committee shall canvass the returns, and, when demanded, examine the ballots, may hear testimony, if offered, of fraudulent practices and illegal votes, and may cast out illegal votes, fraudulent returns, and find the true and legal vote .cast for each candidate, and shall certify the results not later than Monday following the primary.”
It is shown in the present instance that the county neutral committee met on Friday, August 11, both of the parties to this contest being present in person and by attorneys, and with appellee demanding- a recount of the ballot. The committee adjourned over to August 17 for the purpose of recount, and the meeting was so held, and, as before stated, the certificate of nomination was awarded to appellee. The argument of appellant’s counsel is that the statute is mandatory, and that any certificate issued after Monday following the primary is void. The general rule established by the authorities on this subject is that statutory requirements as to the time of completing the canvass of an election and the issuance of certificates concerning same are directory, and .that strict compliance is not essential. 20 C. J. 199. There is nothing in the form or subject-matter of this statute that is sufficient to take it out of the operation of that rule. On the contrary, we think that a mandatory application of this statutory requirement might result so disastrously that the Legislature could not have had in mind a strict enforcement to the extent of rendering the result of an election illegal merely because the committee had not acted within the statutory time. The language of the statute manifests an intention on the part of the lawmakers to require expedition in ascertaining and declaring the result of a primary election, but the statute does not declare the certificate of the election to be void on account of failure to comply with, tbe statute as to time for the certification. If the lawmakers had intended to avoid the result, they would have manifested it by a plain declaration to that effect.
The next contention is that the court erred in not counting in appellant’s favor the votes of ten electors who offered to vote in the town of Could, but were rejected by the election officers for the alleged reason that they had violated party rules with respect to voting for party nominees.
One of the rules of the Democratic party provides that if any person presents himself to vote “who is known to have voted against a Democratic nominee at a general election, held within two years last preceding, or who by his words or action has espoused the cause of other than Democratic nominees preceding a general or special election within said time, his right to vote at such Democratic primary may be questioned by any well known Democrat or by any of the election officials, and, upon satisfactory proof of such person’s action, the said judge shall prohibit such person from voting at such primary election.” It appears in the proof that the ten persons were qualified electors, but that at the regular biennial election in 1920 these persons had signed a petition of nomination of independent candidates for justice of the peace in opposition to the Democratic nominees, and had voted for such independent candidates. Counsel contend, in the first place, that this rule is void because it is an unreasonable restriction upon the constitutional right to vote, and that such restriction cannot be imposed by party rules.
In Ferguson v. Montgomery, supra, we held that political parties “have exclusive jurisdiction as to the regularity of primary elections, except as taken away by statute,” and that party rules prescribing test for qualifications of voters will be upheld unless in conflict with th e statute. ■ Continuing further, we said:
“The act in question prescribes no tests for party affiliations. Therefore the duly constituted authorities of the recognized political parties had a right to prescribe the tests for the voters at the primary elections to be held by such political parties. To hold otherwise would be to destroy the usefulness of the act and to render it unreasonable in its application or practical effect.”
It is urged that the ten persons in question had hot violated the party rules, and that the rejection of their ballots was not authorized by those rules. The contention is that the circuit court of Lincoln County had declared the whole election invalid on account of the failure of the clerk to publish a list of voters, and that there were therefore no Democratic nominees before the people at the regular election. This contention is not sound, for the judgment of the circuit court only related to a contest for the office of sheriff, and, whether rightfully so or not, the nominees for other offices were dute' certified as Democratic nominees. The refusal to abide by the nominations certified constituted an infraction of party rules and barred those persons from voting at the next Democratic primary election.
Where nominations are duly certified, voters have no right to question the nominations collaterally, and if they do so they thereby bid defiance to party rules and subject themselves to party discipline. They cannot justify themselves under the rule by saying that the nominations were not legal.
The final contention of counsel for appellant is that the court erroneously excluded thirty votes for appellant on the ground that their names did not appear on the published lists of electors, and that the evidences of their qualifications as electors were not returned by the election cfficers in the manner provided by law. A solution of this question turns upon the interpretation and validity of a section of the statute (Crawford & Moses’ Digest, § 3777), which reads, in part, as follows:
“No person shall be allowed to vote at any primary election held under the laws of this State who shall not exhibit a poll-tax receipt, or other evidence that he has paid his poll-tax within the time prescribed by law to entitle him to vote at the succeeding general State election. Such other evidence shall be (a) : A copy of such receipt, duly certified by the clerk of the county court of the county where such tax is paid, (b) Or such person’s name shall appear upon the list required to be certified to the judges of election >by § 3740. Or, if any person offering to vote shall have attained the age of twenty-cne years since the time of assessing taxes next preceding such election, * * * and possesses the other necessary qualifications, and shall submit evidence by written affidavit, satisfactory to the judges of election, establishing that fact, he shall be permitted to vote. All such original and certified copies of poll-tax receipts and written affidavits shall be filed with the judges of election and returned by them with their other returns of election, and the said judges of election shall, in addition to the regular list of voters, make an additional list upon their poll-books of all such persons permitted by them to vote, whose names do not appear upon the certified list of poll-tax payers, and such poll-books shall have a separate page for the purpose of recording names of such persons. * * * In any contest arising upon any election held under this act it shall be a ground of rejection of any ballot cast by an elector whose name (a) does not appear upon the certified list of poll-tax payers; or (b) who has not filed with the judges of election his original or certified copy of poll-tax receipt, or written affidavit of the attainment of his majority; or (c) if such original or certified copy of such poll-tax receipt or written affidavit has not been returned by the judges of election; or (d) the name of such person listed separately and certified as required by this act.”
It is urged against the validity of this statute that it is a restriction upon the constitutional qualifications of voters at elections. Constitutional provisions with respect to elections do not apply to party primaries. Hester v. Bourland, 80 Ark. 145. We said in Ferguson v. Montgomery, supra, that primary elections were unknown at common law, and that they are purely the creatures of statute. Whether or not a statutory restriction upon the right to vote in a party primary could be declared to be unreasonable and violative.of a natural right or as being wrongfully discriminatory, we need not decide in this case, for the statute now under consideration does not restrict the right of a voter, but it merely regulates the method of voting and the preservation of the evidence of an elector’s right to vote.
The statute quoted above provides that, if the name of an elector does not appear on the certified list, he must produce his poll-tax receipt or a copy thereof, or, if he has come of age since assessing time, he must furnish an affidavit to that effect, and that such original poll-tax receipt or copy or affidavit must be filed with the election officers and returned by them. This requirement rests upon the voter himself, as well as a duty imposed upon the election officers. The individual voter is chargeable with knowledge of the law, and, when his name does not appear on the certified list, he must prove, in the manner prescribed by statute, his qualification as an elector so as to entitle him to vote, and if he fails to do so, his ballot may be rejected, and if permitted to vote by the judges without presentation and preservation of such evidence, his ballot may be rejected on a contest in the court. ¡But it is further contended that, if the election officers permit a voter whose name is not on the certified list to vote without furnishing other evidence of his qualification, the court has no right to reject the ballot on a contest. This contention is in the face of the statute itself, which expressly provides that the court may reject the ballot where the evidence of the qualification of the voter has not been preserved in the manner prescribed by statute. This is a matter entirely within legislative con trol, and we perceive no reason why the Legislature should not prescribe such a method of preserving the evidence of a voter’s qualifications and for the rejection of a ballot not supported by such evidence. Appellant proved in the trial that these thirty electors were duly qualified, twenty-three of whom had paid poll-tax, and that the other seven were young men who had come of age since assessing time, but this is not sufficient, in the face of the statute, which requires other evidence. The lawmakers had a good reason for prescribing this requirement concerning the qualifications of electors whose names do not appear on published lists. The reason is that it may be difficult, after an election is over and a contest arises, to produce proof pro and con as to the qualifications of a voter, but, if that evidence is produced at the time of the election and preserved, all uncertainty on the subject is eliminated. This makes the provision a reasonable one and in the interest of fairness in elections.
Mr. Justice Hart dissents from the conclusion on this feature of this case.
After examination of the whole record, we are of the opinion that there is no error in the proceedings, so the judgment is affirmed. | [
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Humphreys, J.
Appellee acquired title to a forty-acre tract of land from her former husband, B». S. Bradley, in his lifetime. He died on November 9,1916. Thereafter, on October 31, 1917, appellee conveyed same to her brother-in-law and sister, Homer ft. Bradley and Minnie Bradley, in consideration that they support, board, lodge and clothe her during the rest of her life. The deed contained a provision to the effect that, should the grantees fail to support appellee, the land should revert to her, and that the improvements and repairs should be offset by rents. Also a provision that, should appellee remarry, the obligation to support her should cease as long as she resided with and was supported by her husband,with the privilege, however, of returning and residing with them again in case she and her husband should separate. Also a further provision to the effect that appellee and appellants, by mutual agreement, might cancel the deed and reinvest the title in appellee, or vest ©ame absolutely in appellants -or -some third party. Pursuant to the terms of the deed -appellee resided upon the land with appellants from December 6, 1916, until January 12, 1919, as a member of their family, at which time she married D. P. Minton. During the time ap-pellee resided with appellants she permitted her brother-in-law to manage -and control her personal property. "When appellee married and moved away she left her personal property with appellants. Subsequently she entered into -an agreement with her brother-in-law whereby he and his wife should reconvey the land to her absolutely for title to the personal property, the pay ment of taxes of 1918, the crops of tliat year, and a release from tlieir obligation to support her. Homer R. Bradley and appellee repaired to the.law office of Hon. Basil Baker, who prepared .a deed of conveyance in keeping with the agreement, which instrument was read by the attorney to them. Appellee’s sister, Minnie Bradley, did not accompany them to Mr. Baker’s office on account of influenza in the family. Homer R. .Bradley took the deed home for execution. His wife declined to sign the deed, because it purported to convey a fee simple title to said real estate. About three weeks later, without the knowledge of appellee, appellants went to Mr. Baker’s office and had him prepare a deed from them to appellee conveying a life estate in said land to her. They took the deed home, and Homer R. Bradley told his wife to call the attention of appellee, when she came for the deed, to the fact that it conveyed a life estate only in the lands to her. When appellee called for the deed, Homer R. Bradley was absent, and her sister, Minnie Bradley, handed it to her without explanation. Appel-lee accepted the substituted deed, believing it was the deed which had been read to her, and, under that belief, placed same of record. The deed given her recited a consideration of $1 and the title to the personal property which belonged to her, and which she had left in appellant’s possession. In a few weeks after the delivery of the substituted deed. appellee discovered, through a friend, that it conveyed a life estate in said lands to her, whereupon she instituted this suit in the chancery court of Craighead County for a reformation of the deed so as to conform to the original deed prepared and read to her by Mr. Baker. TJpon a hearing of the cause the chancery court decreed a reformation of the deed of conveyance so as to convey a fee simple instead of a life estate in said land, from which is this appeal.
Appellant’s first contention for reversal is that Minnie Bradley, who owned the land in entirety with her husband, never agreed or consented to convey it in fee simple to her sister, the appellee. There is practically no dispute in the evidence concerning- the entire transaction. Appellants had certain personal property in their possession belonging to appellee, and were under obligations to support her, should she separate from her husband and return to live with them. After appellee’s marriage to Mr. Minton she demanded a reconveyance of the land, and talked the matter over on several occasions with appellants. The negotiations continued quite a while, and resulted in an agreement by Homer R. Bradley, acting for himself and his wife, with appellee to convey a fee simple title in said real estate to her in consideration of certain personal property, a release of the crops growing upon the land, and of future support. After a careful reading of the testimony we are convinced, beyond the peradventu-re of a doubt, that Homer Bradley acted throughout the negotiations not only for himself but as agent for his wife. Pursuant to the agreement detailed above, a deed was drawn from the Bradleys to Mrs. Minton, and given to- Homer Bradley for execution. The transaction was completed -and the deed..shown to Minnie Bradley by her husband. Appellants then fell upon the plan of preparing and executing a deed conveying a -life estate- only in -said land to appel-lee, without consulting her. They did this, and, when -ap-. pellee called for the deed which had been read to her, Minnie Bradley gave her the deed conveying a life estate only in the land, without explanation, -although she- had been admonished by her husband to explain the matter to her sister, the appellee. In -substituting the deed without explanation a fraud was practiced by appellants upon appellee. Appellee accepted and recorded the deed under the belief that it was the deed which had been read to her. The facts bring this case within the rule that equity will reform an instrument to conform to the intention of the parties, where a mistake has been made by one, and fraud practiced by the other, inducing the execution and delivery of the instrument. Doniphan, Kensett & Searcy Rd. Co. v. Mo. & N. Ark. Rd. Co., 104 Ark. 475. Mrs. Minton accepted the deed under a mistaken, belief that it conveyed a fee simple title, which acceptance was induced through the deceit of Minnie Bradley by substituting a deed conveying a life estate only in said land to her.
Appellants’ nest 'and last contention for reversal is that the deed was without consideration and not subject to reformation. They invoke the equitable doctrine that equity will not reform voluntary conveyances. The doctrine contended for is not applicable to the facts of the instant case. There was a consideration for the deed. Appellee surrendered certain personal property to appellants and released them from further obligation to support her.
No error appearing, the decree is affirmed. | [
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Wood, J.
This is an action by the appellee against the appellant. The appellee alleges that the appellant issued to the General Construction Company (hereafter called company) its certificate of indebtedness No. 26 for the sum of $1,000, bearing interest at the rate of six per cent, per annum; that the company was a contractor, and that the certificate of indebtedness was issued to it for work performed for the appellant; that the appellee purchased the certificate of indebtedness from the company on July 24, 1920; that the company indorsed said certificate and became liable as an indorser to the ap-pellee; that, in an agreed decree in the District Court of the United States for the Eastern District of Arkansas, rendered at its November, 1921, term, in a case between the company and the appellant, the appellant expressly allowed and approved the certificate of indebtedness; that in compliance with act 208 of the Acts of 1921 the appellant, through its commissioners, made a report to the county court of Randolph County setting forth the claims allowed by the appellant, and the certificate of indebtedness which is the foundation of this action was expressly set forth in said report. This report was filed December 15, 1921. It prayed for a levy of a tax sufficient to take care of the indebtedness evidenced by this certificate and other indebtedness; that said report was approved by the county court on Dec. 15, 1921, and taxes were levied for the purpose of paying -this eer- tifieate and other indebtedness; that any purported defenses are barred by the aforesaid acknowledgments of the appellant. There was a prayer for judgment for the sum of $1,157, principal and interest on the certificate.
The appellant denied the material allegations of the complaint, and set up act 208 of the Acts of 1921 as a bar to the appellee’s action, and alleged that the appel-lee had not in any way complied with the provisions of said act, and denied that it had acknowledged any indebtedness to the appellee. Appellant denied that the appellee filed its claim with the district within ninety days after the passage of act 208, and denied that the appellee brought suit within the time allowed by law. It alleged that -the company claimed that it hád hypo-thecated certain certificates of indebtedness with certain persons at the time the decree in the United States -court was taken; that it was stipulated that execution should not issue on a certain portion of that decree until the company took np the certificates of indebtedness which it had hypothecated; that a large sum of money was deposited in the Pocahontas State Bank; that the fund was held by the Pocahontas State Bank for the convenience of persons to whom the company owed debts; that the appellee claimed the company owed it between $4,500 and $5,000, and claimed this amount out of the deposit; that this sum was paid the appellee, and ap-pellee had made no further request for further payment; that, after the appellee collected such sum, all other funds on deposit with the Pocahontas State Bank were withdrawn by the company; that the appellee did not ask that the certificate sued on be paid until many months after appellee had been paid all that it claimed and many months after the company had withdrawn the balance on deposit with the Pocahontas State Bank.
The undisputed facts áre as follows': Appellant road district was created by act' 135 of the Acts of 1919. After letting á contract and incurring considerable in debtedness, the work of improvement for which it was created was suspended by act 208 of the Special Acts of 1921. That act, among other things, provides as follows: “Within three months after the passage of this act all persons having claims against the district shall present the same to the president or secretary of the board of commissioners thereof, and ;all claims not presented within that time shall be forever barred.” That act was approved March 2, 1921. The claim on which the appel-lee’s canse of action is based was a certificate of indebtedness issued by the district on June 10, 1920, to the company, and was sold by the company to the appel-lee on July 24, 1920. On May 21, 1921, the company presented a claim against the district which was on that day rejected by the appellant. In this claim the company asserted that it still owned all the certificates that had been issued to it.
At the November term, 1921, of the United States District Court, sitting at Jonesboro, a judgment was rendered in favor of the company against the appellant. This judgment recited as follows: “Likewise, by consent, it is considered, ordered and adjudged that the plaintiff have and recover of and from defendant the further sum of $16,828.30, with interest thereon at the rate of six per cent, per annum from.the 27th day of May, 1921, until paid, but no execution shall be issued on said sum of $16,828.30, or any steps be taken to enforce its collection, until the plaintiff shall deliver to the secretary of the Western Randolph County Road Improvement District the following certificates of indebtedness issued by the defendant to the plaintiff and hypothecated by the plaintiff to various parties, to-wit: (Certificate No. 26 for $1,000 is mentioned, together with others, and the judgment continues): “Jurisdiction is expressly retained over the judgment for said $16,828.30, not only for the purpose of executing and enforcing same but for the purpose of crediting thereon any payments which have been or may hereafter be paid to the holders of any of the certificates described above as partial payments on same.”
On December 15, 1921, the commissioners of appellant district filed a report and petition in the county court for a tax levy to support a bond issue. The report contained a tabulated statement of all certificates "which the district had issued during its existence, giving their number. The appellee was not a party to any of these proceedings. When the funds were placed in the Pocahontas State Bank to pay the debts of the company, the company’s note to the appellee, amounting to $5,000, was paid out of this fund. There had been deposited with the appellee, as collateral to the note of the company, certificates amounting to $5,700. The company’s note to the appellee was paid by check on the Pocahontas State Bank, dated March 16, 1922. The appellee at that time surrendered all certificates of indebtedness which it held as collateral. It did not surrender the certificate on which this action is based, which is owned outright. The certificate on which this action is founded was first presented to the district on the 18th of August, 1922.
The above are the issues and facts upon which the trial court, by consent of parties sitting as a jury, rendered a judgment in favor of the appellee in the sum of $1,159.85, with interest from the date of the judgment, from which is this appeal.
In Morgan Construction Company v. Pitts, 154 Ark. 420, a road improvement district had been created by special statute, and, after incurring obligations, the act creating the district was repealed, and provision was made for the winding up of the affairs of the district and paying its obligations. The act provided “that all persons having claims against the district are required to present the same to the said receiver for adjudication within ninety days after the passage of this act.” In that case we said: “The statute required, as before stated, the filing of all claims within ninety days. This is a reasonable provision, and the court was correct in refusing to allow a claim not filed within the time specified. The statute does not authorize the allowance of any claim except those filed within the time allowed.” That case, in principle, rules this. The statute under review here, as indicated by its title, was to provide for the payment of- existing indebtedness which would include all claims against the district, disputed and undisputed. The word “claims,” as used in this statute, embraced every species of legal demand. W. U. Tel. Co. v. Jones, 95 Ind. 228. The various provisions of the act, which it is unnecessary to set forth, show that it was the intention of the lawmakers to provide a method for the settlement of all the indebtedness of the appellant, and to require those to whom appellant was indebted to present their claims against the district which they desired to have paid, within three months after the passage of the act.
The' testimony in the case shows that the appellant had issued a certificate of indebtedness amounting in the aggregate to $9,324.53. It was the intention to have all of these claims presented to the president and secretary of the appellant for allowance or rejection, and for the payment of those allowed, through the issuance of bonds and the levy of a tax for such purpose. It was essential, under the act, for the payment of any claim that it be presented to the president and secretary of the district for allowance within the time required, and the board was required to pass upon such claim within a month after presentation, and, if any of the claims thus presented were rejected, then the claimant could institute an action within ninety days after such rejection.
The provisions of the act show an expeditious plan for the payment of the obligations of the district. The provisions requiring presentation of the claim within ninety days is not to be likened unto a statute of limitation, but rather unto a statute of nonclaim. It was therefore not within the power of the commissioners of the district and the company to obviate the necessity of appel- lee presenting its claim by having a judgment entered by consent in favor of the company against the appellant, in which certificates of indebtedness of the company, including the certificate upon which this action is based, were recognized as valid and outstanding claims. A presentation of a claim by the company to the appellant for allowance or rejection could not inure to the benefit of the appellee, for the reason that the company did not own the certificate. It was owned by the appellee. When the claim was presented by the company to the appellant, it rejected the claim, and the appellee did not institute any action within ninety days to establish its claim against the appellant, and the action instituted by the company against the appellant in the United States court could not redound to the benefit of the ap-pellee under this statute.
The express language of this statute is that “all claims not presented within that time (three months) shall be forever barred.” It occurs to us that this statute was intended to declare a right of claimants to recover on their claims by pursuing the terms of the statute or not at all. Therefore, as we have stated, it is not like a statute of limitation, and the claim of the ap-pellee, being barred by a failure to comply with its terms, could not afterwards be revived by any promise on the part of the appellant, through its commissioners, to pay the same. After the olaim was barred no act of theirs could waive the terms of the statute. See Hill v. State, 23 Ark. 604; Rhodes v. Cannon, 112 Ark. 15.
The judgment of the court is therefore erroneous, and the cause is. reversed and remanded, with directions that judgment be entered in favor of the appellant, dismissing the appellee’s complaint, and for costs. ■ | [
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Wood, J.
The appellant, an owner and taxpayer of real estate in District No. 340 of the city of Little Bock, filed Ms complaint in the Pulaski Chancery Court against the district and its commissioners, the appellee, in which he set up, in substance, that District No. 340 was -duly established for the purpose of paving and improving Broadway Street in the city of Little Bock from Markham Street southward to the north line of Tenth Street; that thereafter a majority in value of the owners of real property abutting on Broadway Street petitioned the. city council of the city of Little Bock to annex the real property extending on-Broadway Street from the north line of -Tenth Street southward to the south line of Twenty-second Street; that the council on May 7, 1923, enacted ordinance No. 3181, which provided for the annexation to Street Improvement District No. 340 of all territory described in the petition; that the commissioners of District No. 340 have accepted the annexation and treated the property s-o annexed as part of the territory of District No. 340, and are proceeding to assess benefits in the annexed territory, and will complete said assessment of benefits and construct the improvement unless restrained; that act No. 280 of the Acts of 1919, under which the council is proceeding to annex the territory, is void because no sufficient provisions are made therein for the assessment of benefits and collection of taxes in the annexed territory, in that no notice of said assessment to the landowners and no opportunity to be heard'thereoh is provided, and no provision is made for the adjustment and correction of assessments, and no appeal from such assessments is provided; that no appointment of assessors is provided for, and no oath of those making the assessment is required; that no provision is made in the aot for the levy or collection of any assessment or tax ont of the assessment of benefits; that the commissioners of District No. 340 have caused plans to he made for the improvement in the annexed territory and incurred expense therefor, and are proceeding and will proceed to incur additional expense in making the assessments, if not restrained; that it is the intention of the commissioners to borrow money and issue bonds for the construction of the improvement in the annexed territory, and to pledge and mortgage the assessment of benefits on all the lands in such territory to secure the payment of these bonds, which will create a cloud upon the title of the appellant.
The appellant prayed that ordinance No. 3181, únder which the appellees are proceeding, be declared invalid, and that the intended annexation of the territory thereunder be canceled and held for naught, and that the ap-pellees be enjoined from proceeding thereunder. The appellant made ordinance No. 3181 an exhibit to his' complaint.
The appellees demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The court sustained the demurrer. The appellant stood on his compaint, and the court entered a judgment dismissing the complaint for want of equity, and for costs against the appellant, from which is this appeal.
Act No. 280 of the acts of 1919 (5733 of Crawford & Moses’ Digest), is as follows: “When persons claiming to be a majority in value of the owners of real property in any territory contiguous to any improvement district organized in any city or town desire that said territory shall be annexed to such improvement district, they may present their petition in writing to the city or town council, describing the territory to be annexed and the character of the improvement desired. Thereupon the city or town council shall direct the clerk or recorder to publish for two weeks, in some newspaper issued and having a general circulation in the county where such city or town is situated, a notice calling upon the property owners to appear before said council on <a day named, and show cause for or against such annexation. On the day named in said notice the city or town , council shall' hear all persons who desire to be heard on the question whether a majority in value of the owners of real property in the territory sought to be annexed have signed such petition, and its findings shall have all the force and effect of a judgment, and shall be conclusive, unless, within thirty days thereafter, suit is brought in the chancery court to review it. The finding of the council shall be expressed in an ordinance in case it is in favor of the petitioners, and in that event the territory sought to be annexed shall become a part of the improvement district, and the improvements petitioned for shall be made by the commissioners. The commissioners shall' make the assessment for said improvement on the territory annexed, under the provisions of this act, on the same basis as if said territory was included in the original district. If petitioned for, the improvement in the territory annexed may be of different material or of a different method of construction from that in the original district.”
, The appellant contends that the act under which the appellees are proceeding provides no fixed place or date for the meeting of the commissioners for the assessment of benefits, and does not provide any notice to the landowner of the assessment of benefits and does not give him any opportunity to be heard on the assessment of benefits, and does not require the commissioners to take an oath that they will truly and justly assess the benefits, and does not provide for the adjustment and correction of the assessment of benefits after it is made, and that therefore the act and the ordinance, thereunder, if carried out, would result in depriving the appellant and other property owners of their property without due process, of law.
It will be observed that the act provides as follows: “The commissioners shall make the assessment for said improvement on the territory annexed under the provisions of this act on the same basis as if said territory was included in the original district.” This language clearly evinces the intention of the Legislature to allow the city or town council the power to annex territory to any improvement district in a city or town when the provisions of § 5733, supra, are complied with. When this is done, the annexed territory becomes a part of the original improvement district to which it is annexed, and the commissioners of the district are to proceed in making the improvements contemplated in the annexed territory just as they would in making; the original improvement. When the annexation ordinance is passed, then the board of commissioners of the district, which now embraces the original and the annexed territory, shall proceed to form the plans for the improvement to be made in the annexed territory, as prayed in the petition of the property owners in such territory, and proceed in like manner to make the improvement in the annexed territory as they did in making the improvement constituting the original district. In other words, when the territory is annexed under the provisions of act No. 280 (5733, supra), then the improvements in the annexed territory are to be made by the commissioners of the district according to the provisions relating to municipal improvement districts as* contained in §§ 5656-5701 of Crawford & Moses’ Digest. These provisions meet all the objections enumerated in the complaint, and urged by learned counsel for the appellant in their brief to the statute under review, as not constituting due process. They afford ampie protection to the property owners of the annexed territory.
In Easley v. Patterson, 142 Ark. 52-59, the courtj in construing .an act creating an improvement district in which tibe commissioners were required to add additional territory to the district upon certain conditions therein named, but without providing for the assessment of benefits in the territory to be added, said: “Giving the language the force which its use necessarily implies., it seems to confer authority for the creation of entirely new districts, but it is ineffectual for that purpose, for the reason that there is no provision made in the statute for the assessment of benefits and the levy and collection of taxes for that purpose.”
And in White v. Arkansas-Missouri Highway District, 147 Ark. 160, the court had under review certain acts which, in effect, created three new road improvement districts, but did not provide any machinery for the assessment of benefits, and we held such acts void.
The appellant contends that, under the doctrine of these cases, the act under review is likewise void. But not so, because this act does make provision for the assessment of benefits in the annexed territory, under the same provisions of law as are applicable to the territory in the original district. The act contemplates that the commissioners, after the territory is annexed, shall cause the assessors of the district to make the assessment for the improvement of the territory annexed on the same basis as the original territory was assessed. This act does not have the effect of creating a new district, but only annexes territory to the original district and makes such territory, when so amiexed, a part of the original district, and provides for the assessment of 'benefits in the annexed territory according to the provisions of the law applicable to the territory in the original district. Where such is the case, it cannot be said that no provision is made for the assessment of benefits in the territory annexed. McCord v. Welch, 147 Ark. 363.
2. The statute under consideration providing for the annexation of territory to original improvement districts in cities and towns, and making them a part of the original district, and providing that 'the improvement shall be made under the laws applicable to these original districts without reenacting .all these laws, does not violate the provisions of § 23, .article 5 of the Constitution. That section is as follows: “No law shall be revived, amended, or the provisions thereof extended or conferred by reference to its title only; 'but so much thereof as is revived, amended, extended or conferred shall be reenacted and published at length.”
In the recent case of Farris v. Wright, 158 Ark. 519; we said: “This court has often considered the application and effect of this provision of the Constitution, and in each instance has adhered to the rule that ‘when a new right is conferred or cause of action given, the provisions of the Constitution quoted require the whole law governing the remedy to be reenacted in order to enable the court to effect its enforcement,’ but that if the statute ‘is original in form, and by its own language grants some power, confers some right or creates some burden or obligation, it is not in conflict with the Constitution, although, it may refer to some other existing statute for the purpose of pointing out the procedure in executing the power, enforcing the right, or discharging the burden.’ ” (Citing many previous decisions of this court on the subject).
The statute under consideration confers upon the city or town council, when the conditions therein prescribed are complied with, the power to pass an ordinance annexing territory to any improvement district, and to as: sess the benefits to the lands in the annexed territory of the contemplated improvements, and to make these improvements under the law applicable to the territory of the original district. Reference is thus made to these laws by which the improvements are made in the district as originally created for the purpose of pointing-out the remedy or procedure to be followed by the commissioners of the district in making the improvements contemplated in the annexed territory.
As was said in White v. Loughborough, 125 Ark. 57-64: ‘ ‘ It is an instance of the Legislature declaring a right and referring to other existing laws for the remedy, which method of legislation does not offend against that provision of the Constitution which declares that ‘no law shall be revived, amended, or the provisions thereof extended or conferred by reference to its title only’.”
Onr conclusion therefore is that act No., 280 of the Acts of 1919, (§ 5733, C. & M. Digest, supra), and ordinance 3181 are valid, and the trial court did not err in so holding and in rendering a decree dismissing the appellant’s complaint for want of equity. The decree is affirmed.
■Smith, J., did not participate. | [
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Wood, J.
This is an appeal from a judgment sentencing the appellant to imprisonment in the State Penitentiary for one year. The appellant was tried and convicted on an indictment which, in proper form, charged him with the crime of selling intoxicating liquors.
B. T. Murphy testified that in the latter part of the year 1922 he was engaged in the mercantile business at DeQueen, Sevier County, Arkansas. Pie bought a gallon of whiskey from the appellant. He paid him in cash the sum of $2 and traded him merchandise in the sum of $4. Witness asked appellant if he could find him any whiskey to bring him a gallon; that his wife was sick_ and he needed it. Appellant said he didn’t have any, but thought lie could get some. Witness afterwards found the whiskey back in the store in a box; didn’t know how it got there. Appellant told witness it cost $6, and witness paid him that amount, as stated above, in money and merchandise.
The appellant testified that Murphy asked him to get some whiskey for his wife, and he told Murphy that he would look around and see if he could get it. Ón the Saturday 'before appellant was arrested he was in a wagon-yard in DeQueen and there he met a man from Oklahoma by the name of M elver. He vspoke of having some whiskey. Appellant handed him $6 and asked him (o deliver the whisker to Murphy. Appellant afterwards asked Murphy if he had received it, and Murphy replied that lie liad not. Witness told Murphy tliat be bad sent a gallon up there and supposed it was in the hack of the store. They went back and found it there in a box. Murphy paid appellant $2 and appellant took the balance of $4 in trade in the store. Appellant didn’t make any profit in the transaction.
The court instructed the jury, among other things, that if they believed from the evidence that the appellant was not interested in the sale of the liquor, but that he was acting merely as the agent of Murphy, the purchaser, he would not be guilty, and that, if they should so find, they should acquit lrim. The instruction of the court was more favorable to the appellant than he was entitled to, under the testimony. Bobo v. State, 105 Ark. 462; Williams v. State, 129 Ark. 344; Bryant v. State, 156 Ark. 580.
There was no prejudicial error in the instructions, and there was testimony to sustain the verdict. The judgment is therefore correct, and it is affirmed. | [
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McCulloch, C. J.
The court sustained a demurrer to appellant’s complaint on a bond exhibited therewith as follows:
“In consideration of Lawrence McSpadden dismissing, with prejudice, a suit which he has pending in the Independence 'Circuit Court for $15,000 damages against the undersigned, T. P. Leonard, the undersigned, T. F. Leonard, agrees as follows:
“First: That he will leave Independence County not later than September first, 1922, and not return to Independence County or to Stone County for fifteen years, unless he is called back to said counties on account of sickness or death of some member of his family, or on some urgent business that cannot be otherwise attended to except by his coming back, and, should he come back on either of the above missions, he agrees to leave said counties as soon as his mission is ended.
“Second: The undersigned agrees to pay all expenses of this suit, including the attorney’s fees incurred by Lawrence McSpadden.
“Should the undersigned violate any part of this agreement he agrees to forfeit to and pay to Lawrence McSpadden the sum of five thousand ($5,000) dollars. And the undersigned Yirgie Leonard hereby signs this bond for the consideration as surety.
“Witness our hands this April 4, 1922.
“T. F. LEONARD,
“Yirgie Leonard. ”
It is alleged in the complaint that appellee, T. F. Leonard, prior to the execution of said bond, invaded the home of appellant, seduced his wife and alienated her affections from appellant, and thereby greatly injured him; that he instituted an action in the circuit court of Independence County against Leonard to recover damages in the sum of $15,000, and that the bond exhibited with the complaint was executed in consideration of appellant’s dismissal of that action.
The ground upon which the court sustained the demurrer was that the bond was void because it involved an agreement contrary to public policy; at least this is the ground upon which the decision of the court is defended by counsel for appellees.
In the first place, it is contended that there is a fair implication, from the language of the bond, that appellee Leonard was required by its terms to leave his immediate family, that is, his wife and children, for the stipulated time, and not to return except in case of sickness. This contention is easily disposed of by mere reference to the language of the bond, which does not speak of the immediate family of Leonard, and there is no inference that he was required to desert them. The bond’is signed by Leornard’s wife as surety, and the implication would rather be that she would follow her husband in complying with its terms by absenting themselves from the territory mentioned. But, at any rate, there is nothing in the language of the bond which requires appellant to desert his family, the clause in question being put in there for his protection, to merely per mit him to temporarily return in the event of an emergency arising on account of “sickness or death of some member of his family.” He is not compelled to leave any of his family there, but in the event he does so he is permitted to return in such an emergency.
It is next urged that the bond is contrary to public policy because it compels Leonard to leave and remain away from the county where he resides and from one of the adjoining counties. The contract is a peculiar one, and there is little authority bearing directly upon the question of its validity. The only case of this kind brought to our attention by counsel is the decision of the Supreme Court of Tennessee in the case of Wallace v. McPherson, 138 Tenn. 458, 197 S. W. 565. In that case the Tennessee court held that, where one of the parties to a contract, “in consideration of sums to be paid monthly, agreed to remove from the city and remain absent so long as the adverse parties maintained their residences in such city,” the contract was not invalid as contrary to public policy. In disposing of the question, the court said:
“There is, indeed, no question of the public health or public safety, and, so far as morality is concerned, such an arrangement seems promotive of it. Being pro-motive of private morals, the safety of individuals comprising a part of the public, and the peace of families, it seems to result in a distinct gain to the public welfare. The complainant was by the contract denied residence only in one city and county of Tennessee. Every other county in the State was open to him. He was not required to remove from the State; likewise the time was subject to his own control. He could resume his residence in Shelby County whenever he was willing to fore-go future payments. There was no forfeiture of sums previously paid, or any possibility of a claim for damages for breach of the contract. The condition imposed had no tendency to deprive complainant of any fundamental right of citizenship.”
Tbe validity of this contract should be determined, we think,, by analogy to a contract in partial restraint Of trade. It is the settled doctrine of this court that such a contract is valid, though it is equally well settled that the contract is not valid if it is so extensive in its scope as to amount substantially to a total exclusion of one of the contracting parties from the pursuit of any trade or avocation. Edgar Lumber Co. v. Cornie Stave Co., 95 Ark. 449; Shapard v. Lesser, 127 Ark. 590; Wakenight v. Spear & Rogers, 147 Ark. 342. The effect of those deoisons is, in other words, that such a contract is valid where the restraint is only partial as to time and place.' Reasoning by analogy, it follows that the contract in question is valid because it is limited in those respects. The time is limited to fifteen years, which is not unreasonable to accomplish the desired ends in completely eradicating the evil effects of the alleged misconduct of Leonard, and the place from which he is to be excluded during that time is limited to two counties. The dismissal of the pending action constituted sufficient consideration, and, as before stated, we think that the agreement on the part of Leonard to absent himself from the county and adjoining county for a period of fifteen years was not contrary to public policy.
It is also contended that the contract provides for a penalty and not for liquidated damages, and for this reason also it is unenforceable.
According to the test laid down in the cases cited by counsel for appellee, we think that the stipulation should be treated as one for liquated damages. The test as to the character of the stipulation has been prescribed by this court in the following language:
“Where the contract is of such a nature that the damages caused by its breach would be uncertain and difficult, of proof, the sum named by the .parties is generally held to be liquidated damages, if the form and language of the instrument are not unfavorable to that construction, and the magnitude of the sum does not for bid it.” Nilson v. Jonesboro, 57 Ark. 168; Stilwell v. Paepcke-Leicht Lbr. Co., 73 Ark. 432; Foran v. Wisconsin & Ark. Lbr. Co., 156 Ark. 346.
The court erred in sustaining the demurrer to the complaint, so the judgment is reversed, and the cause is remanded, with directions to overrule the demurer, and t‘or further procedings. | [
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Hart, J.
Granville Wood was indicted for the crime of murder in the second degree, charged to have been committed by killing John Hughes. He was tried before a jury and convicted of voluntary manslaughter, his punishment being fixed at five years in the State Penitentiary.
It appears from the record that John Hughes was killed by Granville Wood in Baxter County, Ark., on the morning of March 5, 1922.
Oscar Gaines was the principal witness for the State. According to his testimony, he had known Gran-ville Wood for seventeen or eighteen years, and Gran-ville Wood had married his sister. Granville Wood and his wife were separated at the time of the killing. John Hughes had spent the night with Oscar Gaines, and on the next morning, while on their • way to get Hughes ’ wagon and harness, they saw Granville Wood' and his ■wife standing in the road, talking. When they approached within a hundred yards of them, Wood’s wife left him and came down the road towards Gaines and Hughes. Wood stood in the road where his wife had left him. Mrs. Wood was about half crying. Just as Gaines and Hughes came to where Wood was, Hughes said to Wood “Hello,” and Wood replied, “How are you?” Wood then stepped to one side of the road, and immediately raised his gun and shot Hughes in the forehead, near the left eye. Without lowering his gun, he began shooting at Gaines. One load struck Gaines in the elbow, and he was again shot in the back and in the back of his head as he ran away. Wood used an automatic twelve-gauge shotgun. Hughes was killed instantly. Gaines denied that Hughes attempted to shoot Wood. He admitted that Hughes had a double-barreled shotgun, but . said that it was a gun which he had borrowed from Hughes, and that he had given it to Hughes to carry home. He said that the loads in the gun had been placed there by him the week before he returned the gun to Hughes. Gaines denied having a pistol on the morning in question, or that he was armed in any way.
Granville Wood was the principal witness for himself. According to his testimony, he shot Hughes because Hughes attempted to shoot him with a double-barreled shotgun. The first trouble Wood had with Hughes came up over a still near a spring on a place which Wood had bought. Wood asked Hughes to move the still away from the spring, and Hughes refused to do so. Hughes said that he would kill the first man that tried to make him move it. Wood told him that he was not going to force him to move it. Hughes told Wood that he was not going to move the still, and that if he fooled with him be would take his wife away from him. Several witnesses told Wood, on the morning of the killing, that John Hughes had told them the evening before that he was hunting for Wood ¡and was going to kill him. When they met on the morning of the kill ing, Hughes told Wood that this would he a good time bo settle their trouble. Hughes then attempted to shoot Wood, and Wood shot him first in his own necessary self-defense.
Riley Casteel was also a witness for the defendant. According to his testimony, John Hughes told him, on the day before the 'killing, that he was going to kill Granville Wood the first time he saw him. Hughes said that he and Wood had had trouble, but the biggest trouble they had was over a still near a spring where Wood got water.
Ferd Gaines was also a witness for the defendant. According to his testimony, Hughes told him, on the evening before the killing, that he was going to take Wood’s wife away from him, and that if he did'not like it he would kill him. He also stated that Granville Wood was trying to get him to move his still, and that he was not going to do it. If believed by the jury, the testimony for the State was sufficient to warrant the verdict.
It is earnestly insisted by counsel for the defendant that the court erred in not granting his motion for a continuance. The defendant’s motion for a continuance contains the names of several witnesses, and it is frankly conceded by counsel for the defendant that the motion is not sufficient except as to one witness. The reason is that, as to the rest of the witnesses, their testimony was either cumulative or the witnesses themselves were beyond the jurisdiction of the court, and no showing was made by the defendant that they would return within the jurisdiction of the court.
It is earnestly insisted, however, that the court erred in not granting a continuance on account of the absence of Wesley Gaines. It is claimed that he would testify, if present, that John Hughes and Oscar Gaines were at his home on the morning of the killing; that they armed themselves, and said that they were going to hunt for Granville Wood and kill him. A subpoena had been 'Served on tbis witness. In presenting the defendant’s motion for a continuance, the court asked the defendant’s attorney where Wesley Gaines was, and the attorney replied that he heard that he was sick. No showing was made ;as to the character of his sickness, and no postponement of the case was asked until it could be ascertained how sick the absent witness was. No attachment was asked for the witness, and no showing was made of a definite character which would require the court to grant a continuance for the term.
We have uniformly held that it is a matter within the sound discretion of the trial court to grant ór refuse a continuance. The circumstances stated above do not show :any abuse of discretion upon the part of the trial court in refusing to grant the defendant a continuance for the term. Hence this assignment of error is not well taken. Jackson v. State, 54 Ark. 243; Allison v. State, 74 Ark. 450 ; and Tarkington v. State, 154 Ark. 365.
The next assignment of error is that the court erred in 'allowing the State to prove by Oscar Gaines that Granville Wood was engaged in the manufacture of whiskey, and had a still about three-quarters of a mile from his house. This testimony was asked the witness in rebuttal, and we do not think that there was any error in admitting the testimony. It is true that this court has uniformly held that one offense cannot be proved by evidence of the commission of another crime, unless the two are so connected as to form parts of one transaction. The reason is that the introduction of such testimony would raise another and different issue which would call for the introduction of other testimony upon such issue, and thus tend to divert the minds of the jury from the real issue in the case. Ware v. State, 91 Ark. 555.
There are certain well-defined exceptions to this general rule, and, in recognition of them, this court held, in a homicide case, that testimony concerning the sale :and manufacture of intoxicating liquor by -tbe- defendant may be introduced under 'certain circumstances, not for tbe purpose of proving other crimes committed by him, but to show tbe relations between tbe parties and tbe probable motive for tbe killing. Priest v. State, 154 Ark. 145.
In tbe case at bar it was tbe theory of the defendant that Hughes was looking for bim to kill bim, because tbe defendant bad asked Hughes to move a still which he had set up on the defendant’s farm. The defendant not only testified to this as a fact himself, but introduced two other witnesses who also testified that Hughes had threatened to kill the defendant because the latter bad asked bim to move bis still.
It was the theory of the State that Wood himself was operating a still near bis residence, and the testimony referred to was competent as tending to show a motive on tbe part of tbe defendant to kill Hughes. It is admitted on all sides that there was bad blood between tbe parties. Hence this assignment of error is not well taken.
Tbe next assignment of error is that the court erred in permitting tbe prosecuting attorney, in his closing argument, to say tbe following: “Gentlemen of tbe jury, bow are we going to stop just such conditions as existed down there? You can stop it bv vour verdicts. I expect all of these parties were engaged in tbe illegal liquor traffic and made, transported and sold liquor in open violation and defiance of tbe law. In my opinion the reason defendant killed John Hughes was because tbe said John Hughes was in competition with the defendant, in the manufacture of moonshine whiskey.”
It will be noted from our statement of facts that both Hughes and Wood were thought to be engaged in the illegal manufacture o:f whiskev. It also appears from tbe evidence in the record that other witnesses were engaged in tbe illegal manufacture of whiskey. Therefore the prosecuting attorney was warranted in making the deduction set out above and in tbis way pointing out to the jury matters which might affect the credibility of the witnesses.
The next assignment of error is the refusal of the court to instruct the jury as follows: “You are instructed that previous threats by the deceased, John Hughes, either communicated or not communicated to the defendant, would justify the defendant to act on less demonstration made by deceased, Hughes, to take the life of the defendant, at the time of the killing, than if such previous threats had not been made by said deceased, and the defendant would be justified in believing the danger was more imminent, at the time of the killing, had the previous threats not been made.”
• There was no error in refusing to give this instruction. It was argumentative in form, and amounted to an expression of an opinion by the court as to the weight to be given to the evidence. The court was not required to single out evidence and thus invade the province of the jury by telling it the weight to be given to any particular part of the testimony. Fields v. State, 154 Ark. 188; and Johnson v. State, 156 Ark. 459.
There is no reversible error in the record, and the judgment will be affirmed. | [
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Humphreys, J.
Appellee instituted suit against appellant in the circuit court of Miller County to recover $196.44, the value of three bales of cotton purchased by appellant from Joe Wright, who had, prior to the sale, executed a chattel mortgage thereon to appellee for supplies. All the allegations of the complaint were admitted by appellant, who interposed the affirmative defense that appellee trusted Joe Wright, the mortgagee, as was his custom in preceding years, to sell the cotton and account for the proceeds thereof. Over the objection of appellant a demurrer was sustained to the plea of custom. The case then proceeded to a hearing, and at the conclusion of the testimony the court, over the objection of appellant, instructed a verdict for appellee. The judgment, was rendered in accordance with the instructed verdict, from which is this appeal.
In the course of the trial appellant offered proof, which was excluded, over its objection, tending to show that in the years 1916, 1917, and 1918 appellee had permitted Joe Wright to sell his crop, which had been mortgaged to him, in the open market, and to account for the proceeds. It appeared that Joe Wright procured his supplies elsewhere in the year 1919, and did not trade with or mortgage his crop to appellee that year. Appellant insists upon a reversal of the judgment because the court sustained a demurrer to that part of its answer interposing the affirmative defense of custom, and because proof tending to establish such custom was excluded by the court. It is unnecessary to determine whether such usage was proper matter for defense in this case, as the undisputed testimony showed a break of an entire year in business transactions between appel-lee and Joe Wright. The chattel mortgage, made the basis for this suit, covered supplies for the year 1920. No supplies were furnished to Joe Wright in' 1919 and no mortgage was given by him to secure same. He settled his account with appellee in 1918, and traded elsewhere during the year 1919.
Appellant next insists for a reversal of the judgment because it was alleged that no demand was made for the cotton before the institution of the suit. The in sistence is not supported by the evidence. W. R. Orton, appellant’s bookkeeper and manager, testified tbat he demanded the cotton from appellant’s agent before the suit was commenced. The testimony on this point was not contradicted.
Appellant’s last insistence for a reversal of the judgment is that the court erred in instructing the jury to return a verdict for appellee. The three bales of cotton in question were under shelter on the farm cultivated by Joe Wright. Appellee had an employee who was keeping watch upon it. Joe Wright sold two bales of the cotton to appellant and the third bale to A. Goldman, who sold same to appellant. It was soon discovered that the cotton, as well as Joe Wright, had disappeared, whereupon W. R¡ Orton, a manager and bookkeeper for appellee, immediately communicated with him, and received directions to search for and recover the cotton. Orton discovered who had purchased the cotton, and had a conversation with Oscar Oliver, bookkeeper and cotton buyer for A. Goldman, concerning same. Touching upon the issue of whether permission had been given Joe Wright to sell the cotton upon the market, Oliver and Orton, in response to questions, testified as follows:
Oliver’s testimony: “Q. Mr. Oliver, did Mr. Or-ton state to you that he had trusted his negro, or words to that effect, to bring this cotton into Ashdown and sell it, and that he had run off and had not brought the money back to him, and when you asked him about it he said he guessed he had talked too much? A. Yes sir.”
Orton’s testimony: “Q. Did you say to Mr. Oliver, in words or in substance, in Pulton, at anv time — I mean in Ashdown — that you had trusted this negro Joe Wright to bring this cotton (referring to the cotton for 1920) to Fulton — I mean Ashdown — and sell it and bring the money to you in Fulton, and then you said to him that you guessed you had talked too much. Did you make that statement to Mr. Oliver? A. T certainly did not. Q. Did you make that statement in substance, or in auv-tliing like it? A. No sir, I never. Q. Did you tell him, or anybody else, that yon or Mr. Temple, or any one for Mr. Temple or yon, had given this negro, Joe Wright, permission to sell his cotton for 1920, or any part of it? A. I did not, no sir. I was sending up to see about this cotton all the time.”
Appellee virtually admits that the conflict in the testimony of these witnesses presented an issue of fact for determination by the jury, for there had been no substantial evidence to show authority in Orton to grant permission to Joe Wright to sell the cotton freed from the mortgage liens. The record reflects that appellee’s mercantile business was in Fulton, quite a distance from his home, which was in Texarkana, and that the business was supervised largely by employees. Appel-dee visited the place of business every week or two. Or-ton was the bookkeeper and assistant manager for the business. He had charge of the accounts, credits, collections, settlements, and other things ordinarily incident to the business. At the time he made the statement attributed to him he was in pursuit of the cotton. It was a part of his duty to “keep a line on the cotton” of tenants to whom theAr had furnished supplies. From these facts the jury might have reasonably inferred, had the opportunity been extended, that it was within the scope of Orton’s apparent authority to authorise the mortgagee to sell the cotton and accouilt to him for the proceeds thereof.
“A principal is bound by all that is done by his agent "within the scope of his apparent power, and cannot avoid the conseauences of his acts because no authority was in fact given to him to do them, unless they were in excess of the agent’s apparent authority, or were done under such circumstances as to put the person dealing with him upon notice or inquiry as to his real authority.” Jacoway v. Insurance Co., 49 Ark. 320; Brown v. Brown, 96 Ark. 456; Pierce v. Fioretti. 140 Ark. 306. The testimony was conflicting upon the issues of whether Orton had authority to release the mortgage liens and whether he gave Joe Wright permission to sell the cotton in the open market, so it constituted reversible error to withdraw the case from th& jury. Bell v. S. W. Veneer Co., 132 Ark. 63.
The. judgment is therefore reversed, and the cause remanded for a new trial. | [
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Humphreys, J.
Appellee was indicted, tried, and convicted in the Lincoln Circuit Court for the crime of selling liquor in said county, and as punishment therefor sentenced to serve one year in the State Penitentiary. Prom the judgment an appeal has been duly prosecuted to this court.
Appellant was convicted on February 15, 1923, and the court pronounced judgment against him on the following day. Appellant contends that this action on the part of the trial court constituted reversible error. It is provided by § 3229 of Crawford & Moses’ Digest that judgment shall not be pronounced in felony cases until two days after the rendition of the vérdict, unless the court is about to adjourn, and then in not less than six hours after the verdict, except by the consent of the defendant. No objection was made or exception saved by appellant to the pronouncement of the judgment, so, under a well-established rule of practice in this State, the action of the trial court cannot be reviewed. Patton v. Cobb, 26 Ark. 616; Ward v. Fort Smith Light & Traction Co., 123 Ark. 548.
Appellant’s next insistence for reversal is that while the evidence showed appellant procured or pur chased whiskey for Fred Morrison and others, it was insufficient to show that ho sold it to them. It is true appellant testified that he was not interested in the sale of the liquor, and that he purchased it as a matter of accommodation for Fred Morrison and several boys with him. On cross-examination appellant was unable to give the name of the negro from whom he purchased the liquor or to describe the manner in which he was dressed. The testimony on the part of the State was to the effect that Fred Morrison, in company with three friends, went to Palmyra in a buggy for the purpose of buying a gallon of whiskey. "When they arrived in Palmyra, Fred Morrison asked appellant if he knew where they could buy some whiskey. Appellant told him lie had none himself, but he thought he could get some from a negro that night, at $12.50 or $13 a gallon; that, after supper, Fred Morrison gave appellant the necessary amount of money, and the two got in the buggy and went out in the country about a mile and a half, turned to the left, and stopped; that appellant got out of the buggy and went away alone, stating he was. going to meet the negro and get the whiskey; that he was gone, five or ten minutes, and came back with a gallon of moonshine whiskey which he delivered to Fred; that they returned to town, where Fred joined his companions and went home. The time and manner of getting the whiskey, taken in connection with the inability of appellant to give the name of the negro or to tell how he was dressed, warranted an inference that the negro was a myth, and that appellant was interested in the liquor. The testimony was sufficient to- support a verdict and judgment for selling liquor.
Appellant’s last insistence for reversal is that instructions Nos. 3 and 4, given by the court, were conflicting and misleading. The instructions are as follows:
“3. If the. defendant, at the request of the witness, Fred Morrison, and solely as the agent of the said Fred Morrison, and without having any interest in the sale of the liquor other than to procure the whiskey for the said Fred Morrison and the other witnesses who testified for the State, went to the party from whom the whiskey' was purchased and, with the money furnished him by the said Morrison, and without making any profit or having' any pecuniary interest or other- interest in the sale, purchased whiskey which he carried to Morrison, as a matter solely to accommodate Morrison and the other State’s witnesses, and not for the purpose of procuring a purchaser for the whiskey, or to assist in any way in making the sale, then you should acquit the defendant.”
“4. If you believe 'from the evidence in this case beyond a reasonable doubt that the defendant either sold or was interested in the sale of intoxicating liquors, as charged in the indictment, you should convict the defendant. And if you find from the evidence in this case beyond a reasonable doubt that the defendant did not sell the whiskey himself, but that he acted as the intermediary between the buyer and seller, and in that way aided and abetted and assisted the' seller in making the sale, then he is guilty just the same as if he had sold the whiskey himself, although you may further find that he received no pecuniary benefit from the sale.”
We cannot agree with learned counsel that the instructions are in conflict with each other. Instruction No. 3 relates to and defines one acting merely as an agent for a purchaser of liquor, while instruction No. 4 relates to one acting as an agent for a vendor of liquors. One being the converse of the other, there is no conflict between them.
The judgment is affirmed. | [
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Wood, J.
This is an action by the appellee (plaintiff below) against the .appellant (defendant below) to recover possession of a diamond ring No. 1268, stone weighing 1.17 carats, mounted in platinum, hexagon top, ladies’ fancy ring, of the value of $1,000. An order of delivery and summons with capias was issued, and returned “duly served by delivering a copy and stating the substance thereof to the within named Reece Jones, and, failing to find said property, have released said Reece Jones, upon his giving bond, as required under § 8645, Crawford & Moses’ Digest, as herein commanded.” The bond executed by Jones was in the sum of $2,000, and conditioned that Jones “shall abide the order and judgment of the court in the above entitled cause, and that he will cause special bail to be put in if the same be required.”
An answer was filed by Jones, in which he admitted that the appellee wag the owner of the ring and was entitled to the immediate possession thereof. Appellant denied that he unlawfully detained the ring or that he was concealing it to de'feat the action, and denied that the appellee was entitled to any damages against him for the wrongful detention of the ring. He alleged the facts to be as follows: That Miss Elizabeth Aubrey, with the knowledge and consent of plaintiff, took possession of the ring and kept possession at all times. Afterwards defendant married Miss Aubrey and lived with her eight months, when she went back to Little Rock. Defendant immediately notified the plaintiff. He tried to get the ring for plaintiff, and tried to get plaintiff to recover the ring, telling plaintiff where it was. Plaintiff knew that defendant was trying to get the ring and could not. Plaintiff then made a false affidavit to the effect that the defendant was concealing the ring, and had the defendant arrested, and had him and his mother, brother and uncle coerced into making a bond to prevent defendant from going to jail. The defendant prayed that the bond be canceled, and that the complaint be dismissed.
The bill of exceptions recites that, “oh oral motion of plaintiff for á judgment on the record or pleadings, the court found that the answer set up no defense to the complaint, and granted plaintiff’s motion for judgment, after the introduction of two notes filed as a basis for the action. To which action of the court in granting-said motion the defendant at the time objected and saved his exceptions.” The notes introduced were notes for $408.75 each, executed by R. W. Jones and James E. Hyatt. It is recited in the notes that they were given for the purchase price of the diamond ring, describing it as in the complaint; that the ring was delivered to the maker of the notes wiithi the understanding and agreement between the maker of the notes and R. W. Jones that the title of the property is and shall remain in the name of P. G-. Keebey until the indebtedness is paid in full. The notes further recited that, in the event of default in payment of one of the notes, all should become due November 1, 1921.
The judgment recited that the answer showed that the plaintiff was the owner and entitled to the possession of the property sought to be recovered, or its value, ‘ ‘ and, the plaintiff having .in open conrt waived all and every right and claim for the recovery of damages from defendant for. the detention of the property hereinafter referred to, it. is by the conrt considered, ordered and adjudged that plaintiff have and recover of and from defendant and of and from Mrs. Blanche Jones, Eg-bert Jones, and :B. F. Jones, sureties upon the forthcoming bond herein given by defendant, the possession of the diamond ring described as in the complaint, and that, in case delivery thereof cannot be had, he shall recover of and from defendant and said sureties the sum of $817.50, together with interest at the rate of eight per cent, per annum from the sixth day of December, 1920, to the date of said payment. ”
The appellant filed his motion for a new trial, the fourth ground of which is “that the court erred in finding that the answer filed herein stated no defense, and in granting a peremptory judgment for plaintiff, and in depriving defendant of a trial by jury, over his protest.” This motion was overruled, and the appellant prosecutes this appeal.
The court erred in rendering a judgment on the pleadings in favor of the appellee. The appellant should have been allowed to prove the allegations of his answer, and these allegations, if proved, would have constituted a defense. The court disposed of the cause as if on demurrer to the answer. The allegations of the answer show that the ring was neither in the actual or constructive possession of the appellant. The appellant admitted that the title to the ring was in the appellee; that the appellant had delivered the possession of the ring to Miss Aubrey, his prospective wife, as an engagement ring; that, after they were married, appellant’s wife lived with him for eight months, and then returned to Little Bock, where she lives with her mother; that appellant notified the appellee that he was not able to pay for the ring, and notified the appellee that the ring was in the possession of his wife in Little Bock; that appellant, after making honest efforts, was unable to get possession of the ring, all of which appellee knew, and appellant requested appellee to recover the possession of the ring from Mrs. Jones by legal proceedings, if necessary.
To be sure, if the possession which appellaht alleged to be in his wife was collusive, then the appellant, to whom the possession was delivered, would still be in the constructive possession of the property, and the action would lie. But the allegations of the answer do not justify the conclusion, as a matter of law, that appellant entered into a collusion with his wife whereby she was to retain possession of the property and thereby defeat an action of replevin, if one should be brought against the appellant, by asserting that the possession was in his wife. On the contrary, the allegations of the answer show that the appellant had made many honest efforts to get possession of the ring for the appellee, but that he was unable to succeed; that he was unable to pay for the ring, and was willing for the appellee to have the ring. Under these circumstances it occurs to us that the cause should have been sent to the jury on the issue of fact as to whether or not the appellant had actual or constructive possession of the ring.
The allegations of the complaint do not show that any demand was made upon the appellant before the institution of the action, and the allegations of the answer show that, if demand had been made upon him for the possession of the ring before the institution of the action, he would have made every effort in his power to deliver possession of the ring to the appellee, and would not have contested his right to such possession. When the facts show that a defendant in replevin does not deny the right of the plaintiff to the possession and will not contest the same, but he does not have the possession of the article, either actual or constructive, so that it is out of his power to deliver the same, then the plaintiff at least should malee demand upon the defendant and give him an opportunity of surrendering possession before haling him into court and subjecting him to the harassment of a lawsuit. As is said in Triplett v. Rugby Distilling Co., 66 Ark. 219, “Demand is necessary only when the defendant would not deny or contest the plaintiff’s right to recover. - The defendant in such a case should have the opportunity of surrendering that which the plaintiff claims, without being subjected to the annoyance and expense of a lawsuit.”
The mere fact that the statute provides for the alternative recovery in damages is not sufficient to justify the bringing of an action against the defendant who is not in possession. See note to Andrews v. Hoeslech, 18 L. R. A. (N. S.) 1265-75, and other cases there cited. In Dow v. Dempsey, 21 Wash. 86, it is said: “The primary object of the action of claim and delivery, under the Code, is to recover the possession of personal property in specie; and the gist of the action is the'wrongful detention of the property by the defendant. In such an action it is necessary for the complainant, in order to state a cause ■ of action, to allege that the property, recovery of which is sought, is wrongfully detained by the defendant. * * * And a failure to prove the allegation must of necessity be a fatal variance. ' True, the action has as its secondary object the recovery of the value of the property in case delivery cannot be had, but the purpose of this is to prevent the action from becoming fruitless or ineffectual by reason of the property being lost, destroyed, or disposed of by the holder after action brought. It never becomes the primary object of the action, nor does it change the action into one for damages for the tortious taking and conversion of personal property.” See also Casey v. Scott, 82 Ark. 364. The action of replevin is not for the collection of a debt, but it is a possessory action for the recovery of specific personal property. Carpenter v. Ingram, 77 Ark. 299; Eaton v. Langley, 65 Ark. 448; Spear v. Arka nsas National Bank of Hot Springs, 111 Ark. 29; Bowser Furniture Co. v. Johnson, 117 Ark. 496. Treating the allegations of the answer as true, they do not show that the appellant is unlawfully detaining the ring.
2. The court likewise erred in directing judgment to be entered against the appellant and his bondsmen. The order of delivery contained a capias clause, and the allegations of the answer were sufficient to show that the appellant was arrested under the provisions of §§ 8642 and 8644 of Crawford & Moses’ Digest, and executed bond pursuant to § 8645 of Crawford & Moses’ Digest, which was a bail bond. Such being the case, the trial court erred in rendering a summary judgment on this bond. Daniels v. Wagner, 156 Ark. 198. The judgment is therefore reversed, and the cause remanded for a new trial. | [
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McCulloch, C. J.
Appellant, Southern Trust Company, a banking institution doing business 'in the city of Little Bock, was joined as one of the defendants in the suit'instituted by Empire Cotton Oil Company against T. H. Bunch and wife, Laura L. Bunch, to subject certain real estate in the city'of Little Rock to the payment of a debt due by T. H. Bunch to the Empire Cotton Oil Company. The present appellant was joined in the action by reason of the fact that it held the legal title, as trustee, and also held a mortgage on the property, executed to it by Bunch and wife. There was a decree in favor of the Empire Cotton Oil Company-, deciding- that the property had been frauduently conveyed or attempted to be conveyed to Laura L. Bunch to defeat the creditors of T. H. Bunch, and subjecting the property to the indebtedness held by the Empire Cotton Oil Company. The decree, however, was subject to the prior incumbrance of the appellant Southern Trust Company. Appellant filed a cross-complaint in that action, alleging that T. Ii. Bunch and Laura L. Bunch were indebted to it in the sum of $2,500 as earned commission for procuring a purchaser of the property under written contract. Appellant set up a contract between it and the appellees, T. H. Bunch and Laura L. Bunch, authorizing appellant to .sell the property for a commission of five per centum, and it was alleged that it produced a purchaser ready, willing and able to take the property, but that the deal was not consummated for the reason that a marketable title was'not furnished by appellees.
The facts concerning the difficulties in which the Bunches were in are recited in the opinion handed down today in Bunch v. Empire Cotton Oil Company, 158 Ark. 462. Briefly stated, the facts are that T. H. Bunch had acquired the title to the property involved partly by purchase and partly by inheritance, and had conveyed the property to W. B. Worthen Company as trustee, the deed failing to disclose, however,"the purpose of the trust, and it was claimed that the W. B. Worthen Company held the beneficial interest as trustee for Mrs. Bunch. In the'final decree the chancery court held that the attempt to put the beneficial 'interest in Mrs. -Bunch was fraudulent-, and the property' was decreed' to be subjected to the' .debt of the Empire Cotton Oil Company. Tbe W. B. Worthen Company had, prior to this litigation, conveyed the property to the Southern Trust Company, and Bunch and wife had executed to the Southern Trust Company, or to a trustee for its benefit, the property as security for a debt aggregating at that time something over $60,000.
The real estate department of appellant had been managing the property since it was mortgaged in the year 1913, and after Bunch and wife removed from Little Rock, about the year 1916, or a little later, they became anxious to sell the property, and entered into a contract with appellant to find a purchaser and effect a sale.. A sale was. negotiated to E. O. Bagley for an agreed consideration of $50,000, and Bagley made a deposit of $500 to close the deal. Bunch and wife executed a deed. to Bagley and forwarded it to appellant from New York, where they resided, but Bagley’s attorney declined to approve the title on account of the pendency of the action instituted b3r the Empire Cotton Oil Company. This broke up the deal, and the sale was not consummated.
The contract between appellant and appellee was dated May 17, 1920, and provided that appellee should “have the sole and exclusive agency of sale for said property for a period of three months from this date, and thereafter until notified * '* * of its withdrawal from sale,” and that appellees should “furnish complete abstract showing merchantable title.”
The action of Empire Cotton Oil Co. against ap-■pellees was instituted on August 20, 1920, and the sale to Bagley was negotiated by appellant on November 22, 1920, which was after the expiration of the period prescribed in the contract for the agency to be exclusive and irrevocable. . .
Appellant claims the right of recovery on the ground that it furnished a purchaser ready, willing and able to take, the property and who was accepted by ap- pellees, and a binding contract was entered into, but the sale was frustrated by the failure of appellees to furnish a marketable title. The .contention of counsel for appellant is that the claim of the Empire Cotton Oil Company was merely an incumbrance on the property, and that it was the duty of appellees, Bunch and wife, to remove it so as to make the title marketable.'
Counsel for appellees contend that appellees are relieved from liability for the commission on account of the failure to furnish a marketable title for the reason that the defect was known to appellant at the time it negotiated the sale to Bagley. The authorities seem to sustain this rule, and it appeals to us as being one highly just and reasonable. The rule has been stated in a Virginia case as follows
“If at the time a broker makes sale of property he has knowledge of, or information of defects in the title, and by reason of these defects the sale cannot be made effective, he is not entitled to his commission.” Foltz v. Conrad Realty Co., 131 Va. 496, 109 S. E. 468. See also Hoyt v. Shipherd, 70 Ill. 309; Appleby v. Sperling, 194 Mich. 681, 161 N. W. 876; Wilson v. Crawford, 61 Tex. Civ. App. 508, 130 S. W. 227.
It is contended, on the other hand, by counsel for appellant that this rule does not apply where .the defect is a mere incumbrance which can be removed by the vendor; We do not, however, think that the pendency of litigation with the Empire Cotton Oil Company can be treated as a mere incumbrance, for the debt was not that of Mrs. Bunch, and she was contending that the property belonged to her. It is true that the chancery court subsequently decided that the property should be subjected to the payment of the debt of plaintiff in the case, but the situation constituted a defect in the title which prevented it from being marketable, and it was not a mere incumbrance which imposed upon Mrs. Bunch the duty to remove in order to carry out the contract of sale negotiated by appellant. Appellant was acting as -the rental agent of Bunch, and managed the property Its officers knew of the pendency of this suit and knew that it was being resisted on the ground that Mrs. Bunch claimed the property. In other words, it was aware of the fact, When the sale was negotiated, that, if the purchaser insisted upon a removal of the defect created by the litigation with the Empire Cotton Oil Compaq, the sale could 'not be effected, and this knowledge prevents a recovery of the commission, and brings the case within the rule announced in the authorities just cited. The fact is unimportant that the contract between the parties provided for an exclusive agency for a definite period for the sale of the property (Blumenthal v. Bridges, 91 Ark. 212), for the reason that the period prescribed for an exclusive agency had expired when appellant negotiated the sale to Bagle}1', and the agency was revocable at that time. The effect of appellant’s knowledge at that time of the defect in the title was the same-as if it had possessed that knowledge at the time of the original contract. The court was correct therefore in refusing to decree a recovery of the commission.
Affirmed. | [
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McCulloch, C. J.
Plaintiff, 0. II. Clirisp, was formerly employed by the Missouri Pacific Railroad Company as a brakeman, and, when the railroad passed into the hands of the United States Government for operation under the act of Congress providing for government control of railroads during the period of the war (act of Congress August 29, 1916), he continued in the employment of the government on that railroad. On January 17, 1917, while plaintiff was engaged in said service as a freight brakeman on a run between Memphis, Tennessee, and Bald Knob, Arkansas, he received serious personal injuries, which resulted in the loss of one of his legs, and the injuries were caused, according to the allegations of the oomplaint and as shown by proof in this case, by the negligence of defendant’s employees in the operation of the railroad.
This action was originally instituted by plaintiff on January 14, 1921, against the Missouri Pacific Railroad Company. The railroad company demurred to the complaint on the ground that it was shown on the face of the complaint that, at the time of .the alleged injury, the railroad property of the company and its operation were under government control, under the provisions of the Federal Control Act. The court sustained the demurrer on January 18, 1921, and on the same day the court made an order, on petition of the plaintiff, directing that James C. Davis, as agent of the government, be made party defendant and that a summons be served on him. Nothing further seems to have been done under that order, so far as this record shows, until August 23, 1921, when the plaintiff filed an amended complaint against Jamos C. Davis, as such agent, alleging the same fasts with respect to the injury and tlie cause thereof as in the original complaint, and alleging that the railroad was under government control. Summons was thereafter duty served on Davis, as agent, and on January 30, 1922, he appeared by counsel and demurred to the amended complaint on the ground that the action against said defendant Davis had not been instituted within two years after the happening of the alleged injury. The court overruled the demurrer, and the defendant then filed his answer, reserving the objections raised on the demurrer, and denying the allegations of the amended complaint with respect to negligence and the cause and extent of plaintiff’s injury. The answer also contained a plea that the alleged injury of plaintiff occurred while lie was engaged in interstate commerce for his employer and was therefore governed by the Federal Employers’ Liability Act, and that the action was not instituted within two years after such injury occurred. There was a trial of the issues before a jury, which resulted in a judgment in favor of plaintiff for the recovery of a large sum as damages.
It is undisputed, both in the pleadings and the proof, that plaintiff’s injury occurred on January 17, 1917, while he was engaged in the service of defendant, which constituted interstate commerce.
The first and principal contention of counsel for defendant as grounds for reversal is that the trial court had no authority, under our statute, to allow an amendment to the complaint substituting as defendant a new party, against whom there was alleged to be a cause of action, in the place of an original defendant, against whom there was no cause of action; that this was tantamount to the commencement of a new action after the expiration of the time allowed by the Federal statute for bringing such action. It is the contention of counsel for plaintiff that the substitution of a new party was permissible as an amendment to the complaint stating the same cause of action as in the original complaint, and that the substitution related back to the commencement of the action against the railroad company.
Tlie Federal Employers’ Liability Act (sec. 6‘) provides that no action may be maintained under the statute unless commenced within two years from the day the cause of action accrued. IT. S. Comp. Stat., § 8662. The rule seems to be established by all of the authorities on the subject that, where a statute creates a right of action unknown at common law and also specifies the time within which the action may be commenced, it operates as a condition of liability thus created, and not merely as a period of limitation. Anthony v. Railway Co., 108 Ark. 219; Partee v. Railroad Co., 204 Fed. 970; Rodman v. Railway Co., 65 Kas. 645; Kerley v. Hoelham, 8 A. L. R (Okla.) 141; Porter v. St. Louis-San Francisco Ry. Co., 51 L. R A. (N. S.) 721.
' Counsel for plaintiff cite cases — especially the decision of the Supreme Judicial Court of Massachusetts in Genga v. New York, N. H. & H. Ry. Co., 137 N. E. 637—which support their contention that, under statutes similar to ours on the subject of amendments, a new party defendant may be substituted after the expiration of the period of limitation so as to relate back to the commencement of the original action and to prevent the bar of the statute, but this court is firmly committed to the contrary rule. Our statute (Crawford & Moses’ Digest, § 1239) reads as follows:
“The court may, at any time, in furtherance of justice, and on such terms as may be proper, amend any pleadings or proceedings by adding or striking out the name of any party, or by correcting' a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case; or, when- the amendment does not change substantially the claim of defense, by conforming the pleading or proceeding to the facts proved.”
Another section (1101) provides that “when a determination of the controversy between the parties before the court cannot be made without the presence of other parties, the court must order them to be brought in.”
This court lias repeatedly decided that these statutes are uot broad enough to authorize a substitution of a new party for one in whose favor or against whom there is no right of action. State v. Rottaken, 34 Ark. 144; Railway Co. v. State, 56 Ark. 166; Schiele v. Dillard, 94 Ark. 277; Coleman v. Floyd, 105 Ark. 300.
Judge Battle, as special Justice, speaking for the court in the case of State v. Rottaken, supra, after referring to the Code provision set forth above, said:
“Tins provision of the Code assumes that the plaintiff has a cause of action, and does not authorize the court in any case, where the plaintiff has failed to show any cause of action, to amend by adding the name of a party in whose favor a cause of action is shown by the complaint to exist, because such a proceeding would be practically instituting a new action, and forcing a party, at the instance of one who has no right to demand it, to commence an action when he does not wish to do so. Broad and. liberal as the provisions of the statute of amendments are, we see no authority in them for such a proceeding. ’ ’
In Schiele v. Dillard, supra, the court said:
“The appellants sought, by amendment to their complaint, to substitute new parties defendant. This could not be done. While the court may, in its discretion, al.low additional parties plaintiff or defendant to be added or struck out, it cannot make an entire change of parties plaintiff or defendant. That would be tantamount to a new suit between entirely different parties.”
Our cases also hold that, where there is an amendment stating a new cause of action or bringing in new parties interested in the controversy, the statute of limitations runs to the date of 'the amendment and operates as a bar when the statutory period of limitation has already expired. Lytle v. State. 17 Ark. 663; Little Rock Traction Co. v. Miller, 80 Ark. 245; Western C. & M. Co. v. Corkille, 96 Ark. 388; Warner v. Askew, 97 Ark. 19.
Ill tlie recent case of Arkansas Land & Lumber Co. v. Davis, 155 Ark. 541, we recognized this principle as -being sound, but held that the substitution of the Federal agent under the Transportation Act in the place of the Director General of Railroads, appointed under the Federal Control Act, did not amount to a change in parties, for the reason that the government was a defendant, and the change from one agent to another was not a change of the real parties in interest. Payne v. Stockton, 147 Ark. 598; Missouri Pacific Rd. Co. v. Johnson, 153 Ark. 146.
O’ther authorities to the same effect are as follows: Miller v. McIntyre, 6 Pet. (U. S.) 61; Seaboard Air Line v. Renn, 241 U. S. 290; Union Pacific R. Co. v. Wyler, 158 U. S. 285; Atmore Milling & Elevator Co. v. L. & N. R. Co. (Ala.), 19 A. L. R. 675; Maegerlin v. Chicago, 237 Ill. 159; Peterson v. Delaware River & Ferry Co., 190 Pa. 364; Boyd v. Mutual Fire Ins. Assn., 116 Wis. 155; 96 Amer. St. Rep. 928; Leatherman v. Times Co. (Ky.), 3 L. R. A. 324; Seibs v. Englehart, 78 Ala. 508; Morrison v. R. & O. R. Co., Ann. Cas., 1914-C, p. 1026; Carpenter v. Vermont R. Co. (Vermont), 107 Atl. 569-Hogardy v. P. & R. R. Co., 255 Pa. 236; 17 R. C. L. 822.
The cases cited on the brief of counsel for plaintiff merely go to the extent of holding that, where there is no substantial change in the cause of action or the parties, and where the change is merely formal or as an expansion or elaboration of the cause of action already stated, it can be done under statutes authorizing amendments, and does not constitute a new cause of action. In the Genga case, supra, decided by the Massachusetts court, the action against the railroad company was based on common-law liability, where the statute of limitation was invoked, and was not based on the Employers ’ Liability Act, which prescribes the period within which suit may be brought as a condition upon which liability rests. How far this may have influenced the Massachusetts court in reaching its conclusion that the substitution of a Federal agent for the original defendant was permissible we need not consider, for the decision in that case, if given its broadest application to the case now before us, would put it in direct conflict with repeated decisions of our own court.
The provision in the transportation act approved February 28, 1920 (41 U. S. Stat. at Large, 446), to the effect that actions against a Federal agent might be instituted “within the period of limitation now prescribed by the State or Federal statutes, but not later than two years from the date of the passage-of this act,” has no application, since the action is one under1 the Federal Employers’ Liability Act, which prescribes a period of two 3rears within which action may be brought. This provision of the transportation statute does not constitute an extension of time for commencing an action, but its effect is rather a restriction, for it limits the period for bringing such suits to two years after the enactment of the statute. Ellis v. Davis, 23 Sup. Ct. Reporter, 243.
Our conclusion is therefore that defendant is correct in the contention that the amendment substituting the Federal agent for the railroad companj7 was not authorized by our statute, and was tantamount to the commencement of a new action, which could not be done after the period prescribed by the Federal statutes within which such actions may be instituted. The substitution was not a mere change of representatives, as in the case of change from the director general to the Federal agent. The effect of the substitution was to change the action from one against the railroad corporation to one against the Lnited'States Government, and, as before1 stated, it constituted a complete change of parties. The Federal agent was not bound to take cognizance of an action against the railroad corporation, even though the service was on the same local station agent, and even though the complaint stated a cause of action for personal injuries sustained during government control. The identity of the corporation was not lost by its railroad property passing under government control, and it still could be sued on its legal obligations, therefore the commencement of an action against it was not notice to the government.
There was no waiver of the substitution, for the defendant preserved his objection in the answer filed, and also pleaded specially that the action against the present defendant was not commenced within two years from the date of plaintiff’s injury.
The judgment must be reversed and the cause dismissed, and it is so ordered. | [
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Smith, J.
The question for decision in this ease is whether there is authority under the statute for the commissioners of drainage districts organized under the alternative system, sometimes called the Turner Act, to employ and pay engineers. The act referred to was approved April 28, 1911, and is found beginning at page 193 of the Acts of 1911, and, as amended from time to time, appears as 3607 'et seq., C. & M. Digest.
At the 1921 session of the General Assembly, act 353 was passed, the same being “An Act to amend §§ 3607 and 3610 of Crawford & Moses’ Digest of the statutes of the State of Arkansas” (Acts 1921, page 388).
The change made ájn-§ 3607 was to provide that, where the lands of a drainage- district were situated in more than one county, the district should be organized in the 'County where the largest portion of the lands was situated, whereas, under the statute before it was amended, the district could be organized by the circuit court of any county in the district.
Section 3610, C. & M. Digest, consists of three paragraphs, the three, together, covering more than a page of the Digest. The first paragraph deals with the appointment and removal of commissioners; and by the last sentence of that paragraph the court is authorized to remove any member -of the board on the petition of a majority of the owners of land within the district, who shall also own a majority of the acreage therein.
Section 2 of act 353 purports to amend § 3610, C. & M. Digest, and does so by providing that the court may remove commissioners on the petition of a majority in value of the owners of real property in the district; whereas the statute, before it was amended, required that the petition should contain a majority of the owners of the land, who should also own a majority of the acreage. Section 2 of act 353 reads as follows: “Section 2. That § 3610 of Crawford & Moses’ Digest be amended to read as follows ’ ’ and the- first paragraph of § 3610 is then reenacted with the change shown above.
The second and third paragraphs of § 3610 were not reenacted by the amendatory act, and the insistence is that the failure to ¡set ont the second and third paragraphs of § 3610 in the amendatory act operates to repeal those paragraphs. If this contention is correct, then the express anthority to employ engineers is repealed, for that anthority appears in the second paragraph. The court held against this contention, and the landowner who raised the point has appealed.
The insistence that the second and third paragraphs of § 3610 have been repealed is based upon the decisions -of this 'and other courts, in which it was held that, when an act amends a former statute “so as to read as follows” it operates as a repeal, by implication, of inconsistent provisions in the former statute and all provisions omitted in the amended law.
The question raised is not a new one; indeed, the exact question was decided in the case of State v. Trulock, 109 Ark. 556. In that case an act of 1913 amended § 5667, Kirby’s Digest, it being provided by the .amendatory act that § 5667, Kirby’s Digest, “be amended to read 'as follows: * * * ” The statute amended provided for the appointment of commissioners, whereas the amendatory act omitted any reference to the appointment of .commissioners, and the argument was made that the power of appointment had ceased to exist.
The opinion in that case contains an extensive review of the authorities, and no useful purpose would be served by again reviewing them. “We recognized the rule of construction that an amendatory statute containing the words that an existing law “be amended to read as follows” ordinarily carried the meaning, when not otherwise limited, that the amendatory statute ex- eluded all omitted provisions of the former law; but we held that this was a mere rule of construction, and would not be followed when to do so would defeat the manifest purpose of the Legislature, made apparent by the statute when considered in its entirety.
That rule is applicable here. One cannot read the drainage act in its entirety and conclude that there was a legislative purpose of withdrawing the authority from the commissioners to employ engineers contained in the ■second paragraph of § 3610. Other portions of the drainage statute refer to work which would necessarily be done by an engineer. Indeed, this is true of the amendatory act itself, for, by § 3607, as thus amended, it is provided that the property owners petitioning for the organization of the district shall file a bond to pay for the expenses of a survey of the proposed district, in case the district is not formed, and that the court shall enter upon its records an order appointing an engineer to he selected by the petitioners, provided the person selected is satisfactory to. the court, - and that the engineer shall give bond, etc. It is there further provided, in the said amended § 3607, that the engineer shall make a survey and a report, and provision is made for the payment of that expense. This, however, is all of a preliminary character, and the second paragraph of § 3610 provides for the employment of an engineer to do the actual construction work.
The third paragraph of § 3610 contains provisions for the use of permanent plans of a drainage district, prepared pursuant to the authority of the second paragraph of that section, in the event the improvement is, for any cause, abandoned but later taken over by another district, and for the payment of the value of those plans, in that event; and if this third paragraph, is held to be repealed, there is nothing in the amended act to take the place of the provisions there contained.
There is nothing in the act to indicate a legislative purpose of depriving the commissioners of the services of an engineer in the construction of a proposed improvement, except the failure to set out in the amended act this second paragraph of section 3610.
In the case of State v. Trulock, supra, we said that it was 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, namely, the third and last clause of the section, which related to the appointment of the commissioners and prescribed their qualifications. And we think it equally obvious here that the Legislature intended to amend only the first paragraph of § 3610 and to leave unchanged the second and third paragraphs thereof.
The judgment of the court below accorded with this view, and it is therefore affirmed. | [
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LARRY D. VAUGHT, Judge
| Appellants, Mountain Pure, LLC d/b/a Mountain Pure Water Company; Mountain Pure MS, LLC; MPAR, LLC; MPMS, LLC; Mountain Pure Holdings, LLC; and John B. Stacks, appeal the Pulaski County Circuit Court’s order denying their petition for contempt filed against appellee Clear Water Holdings, LLC, as successor in interest to Simmons First National Bank. We affirm.
Appellants’ petition for contempt arose out of a foreclosure action. Simmons First National Bank initiated the action on March 17, 2014, by filing a complaint to foreclose its mortgages and security interests in certain real and personal property secured by loans 12Simmons made to appellants. On April 16, 2014, the circuit court entered a consent order appointing Michael McAfee as receiver to preserve the property by managing the Mountain Pure entities.
On September 22, 2014, Simmons and appellants executed a settlement agreement and mutual release of claims and security interests, which, pertinent to this appeal, included the following provision:
5. Information for Preparation of Mountain Pure Entities Tax Returns. Within 30 days of the date of this agreement, the Receiver shall in the ordinary course of its business provide a copy of all information from the Mountain Pure MAS-90 computer system in Little Rock, Arkansas to enable the Mountain Pure Entities to prepare and file tax returns for the year 2013 and the partial year 2014 through September, 2014. After the Receivership is concluded, Simmons and the Receiver shall turn over the actual hard drive(s) and computer towers that contain the hard drives to the Stacks Parties. Simmons and the Receiver have no responsibility in this regard other than providing copies of information on the computer system, and the Stacks Parties have no right or claim to any information of the Mountain Pure Entities on the computer system except as set forth in this paragraph.
A foreclosure decree was entered on September 24, 2014; the Little Rock Mountain Pure plant was sold at a foreclosure sale on October 16, 2014, to Clear Water Holdings, LLC; an order confirming the sale was entered on October 21, 2014; and Clear Water Holdings was subsequently substituted as the proper party plaintiff.
On January 9, 2015, McAfee delivered one computer tower, the main file server containing the MAS-90 system, to appellant. Stacks; however, Stacks claimed that there was no data on the tower. McAfee claimed that his delivery of the computer tower with the MAS-90 system satisfied the terms of the settlement agreement.
|aOn February 26, 2015, appellants filed a motion for emergency relief to enforce settlement, and later, on March 26, 2015, filed an amended motion. Although Stacks had possession of the computer tower containing the MAS-90 system, he requested that McAfee be ordered to immediately turn over the computer towers containing the hard drives and that nothing be removed from the hard drives and computer systems, particularly the MAS-90 system. Appellants claimed that the data on the hard drives was extremely important to prepare their taxes and to seek funding for continuing businesses.
A hearing was held on appellants’ motion for emergency relief on April 1, 2015. On April 13, 2015, the circuit court entered an order providing, “Immediately upon the conclusion of the Receivership, the Receiver shall turn oyer and surrender the remaining computer towers and hard drives from the Mountain Pure facility to John Stacks. The Receiver shall not delete or remove any data, software or anything else from said hard drives.”
On May 6, 2015, McAfee delivered a second computer tower to appellants—the terminal server; however, Stacks claimed that data had been deleted from the hard drive. As a result, on May 15, 2015, appellants filed a petition for contempt against McAfee.
At the contempt hearing on August 3, 2015, Stacks testified that on May 6, 2015, McAfee delivered a computer tower; however, data on it had been deleted. Stacks testified that he hired Tracy Bush, a former employee, and Gordon Bond, a computer expert, who both confirmed that the data had been deleted. Stacks stated that two weeks prior to the contempt hearing, on July 21, 2015, McAfee delivered a USB drive containing 300GB of data. Stacks further testified that he had been trying to obtain the computers and the data thereon since |4September 2014 and that he desperately needed it to file his taxes and to secure loans for his other businesses. He claimed that the ordeal had caused him considerable trouble and expense.
Tracy Bush testified that the computers delivered by McAfee in January (the main file server) and May 2015 (the terminal server) had no data. Gordon Bond, service manager of The Computer Works, testified that he had been retained by Stacks to examine the terminal server Stacks received from McAfee on May 6, 2015. Bond’s examination revealed that data had been deleted from the terminal server on May 5, 2015, the day before it was delivered. Bond further stated that the 300GB of data on the USB drive that was provided by McAfee in July 2015 was not data from the terminal server.
Marvin Bonney worked for a computer-networking company that was hired by Clear Water Holdings. He testified that in January 2015 he was asked to “decommission” the main file server and replace it with another server. He said that he was told by McAfee not to compromise the MAS-90 system or its data but to remove all remaining data—300GB—from the main file server. Bonney copied the 300GB of data to a USB drive and then deleted that data from the main file server before it was delivered to Stacks. Bonney testified that he was later asked by McAfee to remove the terminal server from the network so that it could be delivered to Stacks. Bonney was told not to delete anything from the terminal server; however, he did delete user names, files, and data of hackers that he claimed compromised the server.
McAfee testified that it was his understanding based on the settlement agreement that he was to deliver a copy of the MAS-90 system and its data from the main file server to appellants so they could prepare their tax returns. He said that he did that in January 2015. McAfee stated that he did not believe that he was obligated, pursuant to the settlement | ¡¡agreement, to provide appellants any other data from the main file server or the server itself until the end of the receivership. Nevertheless, he testified that the data deleted from the main file server was delivered to Stacks in July 2015. McAfee conceded that at the April 2015 hearing he did not report to the circuit court that he had caused data from the main file server to be deleted in January 2015. However, he testified that he complied with the April 2015 order when he delivered the remaining server—the terminal server—to Stacks in May 2015. He testified that to his knowledge there was no usable data on the terminal server that had been deleted pri- or to its delivery.
Johnny Pabian testified that he is the owner of Pabian Partners, a SAGE software reseller. He stated that on January 19,2015, he met with Tracy Bush, who had possession of a working copy of the MAS-90 system. Pabian testified that he and Bush accessed all the data available on the MAS-90 system, including income statements, revenue and expense statements, balance sheets, a general-ledger module, accounts receivable, and spreadsheets.
From the bench, the circuit court, on multiple occasions, voiced its dissatisfaction with McAfee’s conduct. The court noted that McAfee failed to disclose at the April hearing that he had caused data to be deleted from the main file server before it was delivered to Stacks. It noted that McAfee delivered the terminal server that had data deleted from it as well. The court stated that McAfee “poured jet fuel on a fire that had been burning for a year with Mr. Stacks.” While the court stated that it was not concerned. that McAfee deleted anything of “great importance,” the court stated that McAfee added “further suspicion,” “distrust,” “ill-|fiwill,” and “animosity to a bad situation.” Before taking the matter under advisement, the circuit court stated, “Mr. _ McAfee, you may not have violated any rules, but you played in a manner that I’d call chicken manure.” The court said that McAfee’s conduct left a “very bad taste in my mouth today after having heard all of this. It makes me very unhappy.”
On January 6, 2016, the circuit court issued a letter ruling:
I have had an opportunity to fully review and consider your respective letters and briefs regarding Mr. Stacks’s contempt motion against Mr. McAfee. While I do not necessarily agree with every action taken by Mr. McAfee in his capacity as receiver, I do not find that his actions rise to the level of contemptible conduct. Therefore, Mr. Stacks’s contempt motion is denied and no damages are awarded. Each party shall bear their own fees and costs in connection with this particular motion.
On January 12, 2016, the circuit court entered an order denying the petition for contempt. This appeal followed.
We review a circuit court’s refusal to punish an alleged contemnor for an abuse of discretion. Harral v. McGaha, 2013 Ark. App. 320, at 10, 427 S.W.3d 769, 775 (citing Jones v. Jones, 320 Ark. 449, 451, 898 S.W.2d 23, 24 (1995)). A circuit court abuses its discretion when it acts thoughtlessly and without due consideration. Harral, 2013 Ark. App. 320, at 10, 427 S.W.3d at 775-76.
Appellants argue that the circuit court abused its discretion in denying their petition for contempt based on the undisputed facts that McAfee
1. Directed that all of the data from the main file server, except the MAS-90 system and its data, be deleted before the main file server was delivered to Stacks in January 2015.
2. Did not report to the parties or the court at the April 1, 2015 hearing on appellants’ motion for emergency relief to enforce the settlement agreement that in January 2015 he had ordered that all data, other than the MAS-90 system and its data, be deleted from the main file server.
3. Delivered the terminal server to appellants on May 6, 2015, yet some data from that server had been deleted the day before.
^[¿Appellants further rely on many of the circuit court’s comments following the contempt hearing, wherein it voiced its strong dissatisfaction with McAfee’s conduct.
A contempt proceeding is a cause of action to enforce valid orders of a court. Davenport v. Uselton, 2013 Ark. App. 344, at 3. Contempt is a matter between the judge and the litigant and not between the two opposing litigants. Id. In order to establish contempt, there must be willful disobedience of a valid order of a court. Lone v. Koch, 2015 Ark. App. 373, at 14, 467 S.W.3d 152, 160. For a person to be held in contempt for violating a court order, that order must be clear and definite as to the duties imposed upon the party, and the directions must be expressed rather than implied. Jones, 320 Ark. at 451, 898 S.W.2d at 24. A person cannot be held in contempt for failing to do something which the circuit court did not order. Id., 898 S.W.2d at 24 (citing McCullough v. Lessenberry, 300 Ark. 426, 780 S.W.2d 9 (1989); Waldon v. Waldon, 34 Ark. App. 118, 806 S.W.2d 387 (1991)).
The order that appellants contend McAfee violated is the April 13, 2015 order, which stated:
Immediately upon the conclusion of the Receivership, the Receiver shall turn over and surrender the remaining computer towers and hard drives from the Mountain Pure facility to John Stacks. The Receiver shall not delete or remove any data, software ór anything else from said hard drives.
The language of this order—drafted by appellants’ counsel—is clear and unambiguous. McAfee was required to turn over the remaining computer, the terminal server, to Stacks after the receivership had been concluded. The receivership was terminated on September 10, 2015. Nevertheless, it is undisputed that prior to the conclusion of the receivership McAfee delivered the terminal server, and he delivered the 300GB of data that had been removed from the main |sfile server. Therefore, McAfee not only complied with the specific requirements of the order, he provided more information than was required and he did so prior to the time period stated in the order. Accordingly, we hold that the circuit court did not abuse its discretion in finding that McAfee did not willfully violate the order.
We' acknowledge that McAfee directed that all of the data from the main file server, except the MAS-90 system and its data, be deleted before the main file server was delivered to Stacks in January 2015. It is also true that McAfee did not report either to the parties or to the court at the April 1, 2015 hearing that he had deleted that information from the main file server. However, those are matters that took place prior to the entry of the April 13, 2015 order; thus, they cannot constitute evidence of a willful violation of that order.
We further acknowledge that after the April 13, 2015 order had. been entered, McAfee delivered ‘ the terminal server to Stacks and that some data from that server had been deleted from the server the day before delivery. However, the evidence presented supports the circuit court’s finding that McAfee’s actions in this regard did not rise to the level of contemptible conduct. Bonney testified that McAfee said not to delete anything from the terminal server before it was delivered to Stacks. Bonney testified as follows:
To the best of my memory, "when I was asked to make the terminal server ready, I was not told to delete anything or just—it was just get it off the network so that we can give it to Mr. Stacks. When I got to the server, I determined it had been compromised by outside people—hackers, essentially— within the last several days. I dumped all of those user profiles from the hackers into the recycle bin and spent a lot of time changing passwords and locking the system back down to where that it could be usable ... [I] deleted the data [the hackers] had placed on the server _ I ... didn’t delete any—any data, any spreadsheets, things like that.
|9The circuit court could conclude from Bonney’s testimony that McAfee did not order Bonney to delete data from the terminal server. To the contrary, McAfee ordered Bonney to remove the terminal server from the network so it could be delivered to Stacks. McAfee testified that to his knowledge there was no usable data on the terminal server that had been deleted prior to its delivery to Stacks. Under these facts McAfee’s conduct could, at most, rise to the level of negligence for unknowingly delivering the terminal server that had some data deleted. We cannot say that such conduct rises to the level of willful contempt.
A circuit court abuses its discretion when it acts thoughtlessly and without due consideration. Here, it is clear that at the conclusion of the contempt hearing the circuit court was displeased with McAfee’s conduct. However, the court took the matter under advisement and, after careful consideration of the entire record, concluded that McAfee’s actions did not rise to the level of contemptible conduct. Based on the language of the April 13, 2015 order, along with the evidence in this case, we cannot say that the court abused its discretion. We affirm.
Affirmed.
Kinard and Gruber, JJ., agree.
. Stacks is the manager of Mountain Pure Holdings and the sole member of MPAR, LLC, and MPMS, LLC.
. At issue were two computer towers: (1) the main file server, which included the MAS-90 (accounting) system; and (2) the terminal server.
. SAGE was formerly known as MAS-90.
. In contrast, Bonney testified that McAfee directed him to delete all data, except for the MAS-90 system and its data, from the main file server, | [
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BRANDON J. HARRISON, Judge
11 This case is a companion case to Sherman v. Boeckmann, 2016 Ark. App. 568, 507. S.W.3d 535, 2016 WL 6994826, also handed down today. These two appeals arise out of very contentious and protracted divorce litigation between appellant Jeannie Sherman and appellee Raymond Boeckmann. In this appeal, Sherman argues that the circuit court erred in the division of the parties’ marital property. We affirm.
The crux of the dispute is the ownership of four' family business corporations the parties agreed are marital property: B and L Properties, Inc. (B & L); L and K Properties, Inc. (L & K); Boeckmann and Sons, Inc. (Sons Inc.); and Logan Centers, Inc. (Logan or Logan Center). It is the valuation and disposition of Logan that is at the heart of this appeal. Prior to the litigation, Boeckmann owned 100 percent of the stock in Sons Inc; Sherman owned 12100 percent of the stock in Logan Center; and each party owned 50 percent of the stock in L & K and B & L.
Sherman filed her complaint for divorce on 10 April 2012. Boeckmann answered and counterclaimed. In his counterclaim, Boeckmann sought a mutual restraining order because, according to Boeckmann, Sherman began removing his name from various bank accounts, both personal and corporate, almost immediately after she filed her complaint for divorce. The court entered an ex parte mutual restraining order, prohibiting the parties from disposing of any of the property belonging to the parties except in the ordinary course of business or by prior written agreement. Further, Sherman was ordered to have Boeckmann’s name restored to the various accounts and to return the monies removed from those accounts since 1 March 2012 and not used in the ordinary course of business. Later, the parties were given authority to access the other party’s personal accounts and the Logan and the Sons Inc. accounts for the purpose of monitoring the balances and the use of the funds. They could not write checks or otherwise withdraw funds from those accounts.
A three-day trial was held in late June 2013. The contested issues were the valuation and division of the marital property. Later, the circuit court issued a letter opinion stating that it could not use the testimony provided at trial to value the four corporations. The court asked the parties for the names of three experts to conduct another valuation.
Without having another valuation of the corporations performed, the court issued another letter opinion ordering the marital property, real and personal, sold with the proceeds divided equally between the parties. This included the parties’ various personal |3and corporate bank accounts. Bo-eckmann was given offsets for money Sherman had taken from Logan Center accounts that was not in the ordinary course of business.
After noting that it had three options concerning the division of the stock in the businesses, the court ordered the stock in all four businesses sold and the proceeds equally divided. The court concluded that it could not award each party one-half of the stock because “[t]he disdain, the hostility these parties have for each other would create an intolerable situation by having them to business [sic] with each other.” The court further concluded that it could not award all of the stock to one party, with the other party to receive an offsetting amount from other marital assets, because of the lack of a proper valuation of the Logan Center.
Following the issuance of the court’s letter opinion, but prior to entry of the decree, Sherman moved the court to reconsider the stock division. She argued that there was no statutory authority for the court to order a sale of the stock. She also conceded that the parties could not work together, precluding an equal division of the stock. Sherman therefore requested that the court award her all of the stock, with Boeckmann to receive a corresponding amount from the other marital assets. In response, Boeckmann argued that, if the court believed that it could not properly order the stock in the four corporations sold, the court should award each party 50 percent of the stock in each corporation.
The decree of divorce awarded each party one-half of the stock in each of the four corporations. Otherwise, the property was divided as set out in the court’s letter opinion. The court later amended the decree to include the exhibits listing the parties’ various accounts and the balances on the first day of trial. Boeckmann was also awarded 14approximately $365,000 from the Logan Center accounts and approximately $110,000 from other joint accounts in order to equalize monies Sherman removed for her personal use without prior approval.
We dismissed Sherman’s appeal of the divorce decree for lack of a final order. Sherman v. Boeckmann, 2015 Ark. App. 566, 2015 WL 6269348 (Sherman I). We also ordered rebriefing in the companion case. Sherman v. Boeckmann, 2015 Ark. App. 567, 2015 WL 6164043 (Sherman II). Sherman filed a petition for review of our decision in Sherman I. Relying on its earlier decision in Kelly v. Kelly, 2016 Ark. 72, 483 S.W.3d 296, the supreme court granted Sherman’s petition for review, vacated our opinion in Sherman I, and remanded the appeal to this court for consideration of the merits. Sherman v. Boeckmann, 2016 Ark. 203, 2016 WL 2866391 (per curiam) (Sherman III).
On appeal, Sherman argues that the circuit court erred in (1) failing to make specific findings as to the value of the four corporate entities; (2) awarding one-half of the stock in the four corporations to each party; and (3) failing to adopt the valuation of the Logan Center or seek an independent valuation. We disagree with these arguments and affirm the circuit court.
Our supreme court recently stated our standard of review:
On appeal, divorce cases are reviewed de novo. We review the circuit court’s findings pertaining to division of property and alimony and affirm them unless they are clearly erroneous or against the preponderance of evidence. A finding is clearly erroneous when the reviewing court, on the entire evidence, is left with the definite and firm conviction that a mistake has been committed. The appellant must show that the trial court abused its discretion by making a decision that was arbitrary or grotindless. We give due deference to the circuit judge’s position to determine the credibility of witnesses and the weight given to their testimony.
Moore v. Moore, 2016 Ark. 105, at 4, 486 S.W.3d 766, 770 (internal citations omitted).
| (jSherman first argues that the circuit court erred in failing to make specific findings as to the values of each corporation. The value of marital property is a factual question. So a circuit court’s valuation of property for purposes of property division will not be reversed unless it is clearly erroneous. Poole v. Poole, 2009 Ark. App. 860, 372 S.W.3d 420. The .value of a marital asset is determined by considering all relevant evidence regarding value. In re Marriage of Rosen, 126 Ill.App.3d 766, 81 Ill.Dec. 840, 467 N.E.2d 962 (1984); Grasty v. Grasty, 125 N.C.App. 736, 482 S.E.2d 752 (1997); Wallace v. Wallace, 733 S.W.2d 102 (Tenn. App. 1987). The burden is on the parties to produce competent evidence of value, and the parties are bound by the evidence they present. In re Marriage of Deem, 123 Ill.App.3d 1019, 79 Ill.Dec. 542, 463 N.E.2d 1317 (1984); In re Marriage of Larkin, 462 N.E.2d 1338 (Ind. App. 1984); Grasty, supra; Martin v. Martin, 358 N.W.2d 793 (S.D. 1984); Wallace, supra. The circuit court has the discretion to place a value on a marital asset that is within the range of the evidence submitted. See Wadley v. Wadley, 2012 Ark. App. 208, 395 S.W.3d 411.
While Sherman’s argument purports to challenge the court’s lack of valuation of each of the four corporations, her main focus is on the lack of valuation of Logan Center. Sherman’s expert, Steve Orr, gave a liquidation value of approximately $1.2 million for the Logan Center. As the court noted in its letter opinion, Orr did not have information regarding the entire income stream of the Logan Center, and he did not review the contracts with all entities the Logan Center provided services to. As a result, the court was unable to render a decision based on Orr’s opinion. Although Boeckmann proffered Cheryl Shuffield to provide valuation testimony, her testimony was excluded as a discovery sanction. In her proffered testimony, Shuffield disagreed with Orr’s valuation as a liquidation value. She | ¿valued the Logan Center at approximately $4.7 million. She also prepared valuations for the other three corporations.
Sherman argues that there was enough evidence concerning the real property owned by the corporations for the court to value the corporations. But the court disagreed, stating that the parties failed to present sufficient evidence as to the value of Logan Center. Indeed, in the circuit court’s view, there was -no need to place values on each of the corporations because the court divided the corporate stock equally between the parties. - This distinguishes this case ease from Farrell v. Farrell, 2013 Ark. App. 23, 425 S.W.3d 824, where the circuit court expressly made an unequal division of the stock in a closely-held corporation. Moreover, the court was honoring the presumption that an equal division is fair and equitable. Davis v. Davis, 2016 Ark. App. 210, 489 S.W.3d 195; Webb v. Webb, 2014 Ark. App. 697, 450 S.W.3d 265. Here, the circuit court did not err in failing to value the corporations.
Sherman’s second point is that the circuit court erred in awarding each party one-half of the stock in each of the four corporations. We disagree. Arkansas Code Annotated section 9-12-315(a)(4) (Repl. 2015) governs this issue and provides as follows:
(4) When stocks, bonds, or other securities issued by a corporation, association, or government entity make up part of the marital property, the court shall designate in its final order or judgment the specific property in securities to which each party is entitled, or after determining the fair market value of the securities, may order and adjudge that the securities be distributed to one party on condition that one-half (1/2) the fair market value of the securities in money or other property be set aside and distributed to the other party in lieu of division and distribution of the securities.
In Hodges v. Hodges, 27 Ark.App. 250, 770 S.W.2d 164 (1989), we applied the statute and pointed out that a circuit court has two options when dividing corporate stock in a divorce: |7(1) designate the specific property in stock to which each party is entitled or (2) order that the stock be distributed to one party and the other party receive one-half of the fair market value of the stock in money or other property. We specifically held that the statute did not authorize a stock sale. Awarding each party one-half of the stock in each of the four corporations is not an error. The choice is one of the court’s options under the statute because it could designate the specific percentage of stock to which each party was entitled. Hodges also pointed out that the court could make an unequal division of the stock. 27 Ark.App. at 256-57, 770 S.W.2d at 168.
Finally, Sherman argues that absent proper evidence of the four corporations’ value, the circuit court should have appointed an expert to appraise the value of the Logan Center and the other corporations. The rules of evidence empower a circuit court to appoint an expert to value an asset in reaching an equitable distribution in a divorce proceeding, Ark. R. Evid. 706(a), and call that expert as a witness in the trial. Ark. R. Evid. 706(a); Ark. R. Evid. 614(a) (court may call witness). Courts, however, “rarely call witnesses, and rightly so,” because it “is hard for judges to maintain impartiality while becoming an active participant in summoning witnesses.” Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 335, at 542-46 (2d ed. 1994) (Federal Evidence). Furthermore, the calling of a witness by the circuit court “interferes with the presentation of evidence by the parties, depriving them of a portion of the control which the adversary system normally confers upon them.” Federal Evidence § 366, at 737. In any event, the decision to appoint an expert and to call that expert as a witness are matters left to the sound discretion of the circuit court. Federal Evidence § 367, at 741; see Wilson v. Kemp, 7 Ark. App. 44, 644 S.W.2d 306 (1982) (judge has discretion to appoint an expert). Here, nothing suggests that the circuit court abused its discretion by not appointing an expert to value the four corporations. The circuit court was certainly not required, as Sherman argues, to appoint an expert to value the four corporations.
Affirmed.
Abramson and Kinard, JJ., agree. | [
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BART F. VIRDEN, Judge
h Randy Harold Morris, Jr., appeals his conviction by a jury on one count of rape by a Washington County jury. His sole point on appeal is that the circuit court erred in denying his motion to suppress his statement to police. Specifically, Morris contends that the circuit court erred in finding that he was not “in custody” when he was interrogated by the police immediately prior to his arrest and that Morris’s statement was made pursuant to an interrogation without his having been informed of his Miranda rights. We agree, and we reverse and remand for a new trial.
I. Facts
On August 24 and 26, 2015, there was a suppression hearing concerning certain statements made by Morris to police immediately prior to his arrest. At the hearing, Springdale police officer Christopher James Eagle testified that on April 30, 2014, he responded to a report of rape at the Sleep Inn in Springdale. Eagle testified that he and other officers met with C.K. | gin a conference room at the motel, where she told them the details of her attack. Officer Eagle stated that C.K. told officers that she and some friends had formed a plan to rob Morris. Instead, she met Morris at his hotel room and bought methamphetamine from him, and then she asked if she could use his shower. Eagle testified that C.K. had told them that, while she was in the shower, Morris pulled her from the shower, put her on the bed, tied her wrists with a zip tie, and injected her in the crook of her arm with an unknown substance. C.K. told officers that Morris had raped her orally, anally, and vaginally. Eagle stated that C.K. had told officers that, after the rape had occurred and while Morris was cleaning, she left to go get change at a nearby store so that Morris could do laundry. C.K. warned the officers that Morris had a knife and that he had used it to cut the zip ties.
Officer Eagle testified that he and Officer Landrum were in the hallway outside Morris’s hotel room when Morris exited the room carrying a plastic bag that had a zip tie protruding from the top. Morris was also carrying a basket of clothes. Officer Eagle testified that he had his gun drawn and was holding it in a low position and that when Officer Landrum patted Morris down, he put his gun away.
Officer Jerry Corken testified that after Morris had been patted down, Morris asked if he could go check on his laundry but that “we asked him to wait.” Officer Corken stated that after speaking to Morris in the hallway for a while, “the conversation was moved into the room because the hallway was starting to get really crowded with people coming out of their rooms.” Officer Corken testified that, for safety reasons, they moved police and Morris into the hotel room.
laOfficer Kyle Naish testified that he stood opposite the hotel-room door with his back to the bedroom area so he could watch Detective Matt Ray and Morris. He testified that Detective Nelson was also in the room and that Morris was sitting on the couch. Officer Naish testified that Detective Robert Nelson took pictures of the room, while Officer Eagle came in to the room to remove drug paraphernalia from the couch cushions and that other officers “made a circle around the room to see if there was anything around.” Officer Naish testified that the officers searched the bedroom, the bathroom, the closet, the television stand, and the dresser. After the search, they escorted Morris to his truck, obtained Morris’s consent to search the truck, and then arrested Morris.
Officer Ray testified that Morris had not been informed by any of the officers that he could refuse to allow them into his room and that Morris had not been provided any Miranda warnings before or during the questioning that took place in his room. Officer Ray testified that he had asked Morris’s permission to wrap the zip tie on Morris’s wrist and that Morris had agreed. Officer Ray testified that the interview with Morris in his room lasted somewhere between thirty and forty-five minutes. Officer Ray agreed that the questions he asked Morris were designed to elicit a confession or a self-incriminating statement and that the questions “were the type where his responses were either going to put him in prison or not.”
The circuit court ruled that Morris had not been in custody that evening in his hotel room; therefore, Morris’s statements would not be suppressed at the trial. The court reasoned that the facts recited at the hearing were analogous to those in Collins v. State, 2014 Ark. App. 574, 446 S.W.3d 199. It also stated that because Morris never objected, because he voluntarily 14answered the police questions, and because he had prior felonies and was familiar with the police and police procedure, Morris “did not feel that he was under arrest.”
A jury trial was held on September 28-29, 2015. At the trial Morris’s recorded statement was played for the jury. In the statement, Morris admitted that he and C.K had consensual sex. Morris explained to police that he had a legal prescription for methamphetamine but that C.K. did not receive any drugs from him, or do any drugs in front of him. In his recorded statement, Morris questioned why someone claiming to have been raped would have gone to the store and come back with change to do laundry. At that point, the following exchange occurred:
OpfioeR Ray: I know why. Because you raped her. You tied her up and you raped her. That’s the conclusion I just got.
Morris: Why did she leave and come back and leave and come back? In her own car? Maybe she’s full of it! You are not going to call me a liar. If you want to take me to jail, take me to jail. Do not call me a liar.
Officer Ray: Then don’t lie to me. Tell me the truth.
Morris: I told you. She’s a freak. We had sex. We watched half a movie. No, I did not film it. I’ve been married eighteen years, and she comes up wanting to do this. This guy that introduced us can tell you that she wanted to have sex with me the night before, but I was too tired. No, she did not want to have sex for meth. I don’t have any meth.
Unidentified Officer: Yeah you do; it’s right here.
Officer Ray: And you’re sitting here saying I’m calling you a liar. I’m sure we’re going to find meth in your truck, too.
Morris: If there is meth in the truck, somebody put it there. You just accused me of raping a woman. You know that’s disrespectful. She raped me. I didn’t want to have sex with her.
In his recorded statement, Morris also described having sex with C.K., and he explained that, afterward, C.K. took a shower and went to get breakfast for them.
| (¡Officer Ray: Here’s the deal. You’re being accused of rape. I’ve given you every opportunity to tell me exactly what happened. I’m not scared of you. Quit being intimidating.
Morris: I’m not. You ask the same things over and over again.
Unknown Officer: When I first talked to you, what did I say? These are the allegations.
Morris: These aren’t allegations when you are trying to beat something in me. Unknown Officer: Listen to what Detective Ray is saying. He’s working for you. We have been doing this long enough to know something’s wrong.
Officer Ray: Did you rape her?
Morris: No, I did not.
Shortly thereafter Morris was placed under arrest on a charge of rape.
At the trial, C.K. testified that when she arrived at Morris’s hotel room on April 29, 2014, she and Morris smoked methamphetamine, and then she took a shower. C.K. told police that while she was in the shower, Morris entered, threw her over his shoulder, and threw her on the bed. She testified that he held her down, restrained her wrists with zip ties, tied off her arm with a neutral-colored rubber band, and injected her with a substance she believed to be methamphetamine. C.K. testified that Morris had raped her orally, vaginally, and anally and that he had ejaculated in her mouth. C.K. stated that when he had finished raping her, he cut the zip tie with a black knife. C.K. said she got dressed and then Morris told her to go to his truck to get cleaning supplies. C.K. testified that, when she returned, Morris told her to go to the gas station across the street to get quarters. C.K. explained that she wrote a note and gave it to the gas-station attendant. In the note, C.K. stated that she had been raped, and she requested that |Bthe attendant call the police. C.K. testified that she went back to the hotel room, that she told Morris that she was going to the lobby to get breakfast, and that the police arrived while she was out of the room.
Irene Whitaker, a nurse examiner specializing in sexual-assault cases, testified that she had examined C.K. on April 30, 2014. Whitaker testified that C.K. told her that she was on methamphetamine and that she had been orally, anally, and vaginally raped. Whitaker stated that C.K. explained that she had bitten her own lip and that she had pain in her wrists from being tied up. Whitaker testified that she made note- of the red marks on C.K.’s wrists, the puncture where C.K. said she had been injected, and an unhealed, bleeding wound with bruising at the opening of C.K’s cervix. Whitaker testified that the bruising was consistent with blunt-force trauma. Whitaker stated that though there was no injury to C.K.’s anus, this was consistent with C.K.’s statement. Whitaker testified that though C.K. had, recounted being strangled with a belt, the fact that there was no bruising on her neck was still consistent with C-K.’s story.
In the State’s closing argument, it stated, “Let’s dispense with the first element, Sexual intercourse. The victim told you they had sexual intercourse. You heard the defendant’s recorded statement, and he agrees they had sexual intercourse. So we can scratch that off the list right now. The only thing we are here to determine is forcible compulsion.” The State argued that the differences between the version of events presented in Morris’s recorded statement and C.K’s testimony about what had occurred that evening showed that Morris was lying.
The jury found Morris guilty of one count of rape. Morris was found to be a habitual offender pursuant to Arkansas Code Annotated section 5-4-501(b)(Supp. 2015), ■ and he was 17sentenced to twelve years in the Arkansas Department of Correction. Morris filed a timely notice of appeal.
■ II. Standard of Review and Applicable Law
This court reviews a circuit court’s decision to deny a motion to suppress a statement by making an independent determination based on the totality of the circumstances, and we will reverse the ruling only if it is clearly against the preponderance of the evidence. Matar v. State, 2016 Ark. App. 243, at 5-6, 492 S.W.3d 106, 110.
The Fifth Amendment to the United States Constitution provides, in part, that “no person ,,. shall be compelled in any criminal case to be a witness against himself.” In Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) the United States Supreme Court held that
the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.
In Hall v. State, 361 Ark. 379, 389, 206 S.W.3d 830, 837 (2005) our supreme court set forth the standard for determining when a suspect is in custody:
This court has held that the safeguards prescribed by Miranda become applicable as soon as a suspect’s freedom of action is curtailed to a degree associated with formal arrest. The Miranda warnings are not required simply because the questioned person is one whom the police suspect. A person is “in custody” for purposes of the Miranda warnings when he or she is “deprived of his freedom by formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.” In resolving the question of whether a suspect was in custody at a particular time, the only relevant inquiry is how a reasonable man in the suspect’s shoes would have understood his situation. The initial determination of custody depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being interrogated.
(Citations omitted.)
|8A. Custodial Interrogation
Morris argues that he was “in custody” when the police interviewed him in his hotel room. Based on our review of the totality of the objective circumstances present at the time of the police interview of Morris, we agree, and we hold that Morris was in police custody for purposes of Miranda.
The circuit court stated that the present case was similar to Collins v. State, 2014 Ark. App. 574, 446 S.W.3d 199, and found that Morris was not in custody at the time his statement was recorded. We disagree and hold that Collins is distinguishable from the instant case. In Collins, this cornet held that the circuit court did not clearly err by denying appellant’s motion to suppress and based that decision in part on the fact that Collins never indicated that he wished to leave and partly on the extent of Collins’s voluntary interaction with the police. In Collins, the appellant arrived home to find the police searching his house pursuant to a warrant. While they were searching his home, the police asked him to get into a patrol car and take them to a storage unit. Collins did so, and when they arrived at the storage unit, Collins agreed to let the police search the unit and signed a consent form. Collins did not try to leave or indicate that he wished to leave. By contrast, Morris asked if he could leave to go check on his laundry and Officer Cork-en testified that he said “ ‘Could you hold on a little bit while we figure out what is going on?’ I didn’t tell him ‘no,’ but I didn’t let him go get the laundry.’ ” Officer Cork-en’s refusal to allow Morris to leave the presence of the police officers is an important difference between the present case and Collins.
The fact that Morris showed some compliance with the police was also cited by the circuit court in support of its ruling that Morris was not in police custody. Indeed, to a certain 19extent, Morris complied with the police officers’ requests. Morris answered questions, went back into his hotel room with police officers, and allowed officers to search his truck after around thirty to forty-five minutes of being questioned inside his room with multiple officers present. Morris exhibited more compliance when the issue was whether he was in possession of methamphetamine. He explained to officers that he had a prescription for the drug and even showed them the pharmacy-issued bottle. The consent for the police to search his truck was related to the methamphetamine issues; however, on the issue of whether he raped C.K. Morris did not demonstrate the same level of compliance. Morris argued with police, and he loudly, verbally confronted them about their accusation that he had raped C.K. In Collins, there is no mention of the appellant having argued with police or disputing their accusations against him as Morris did.
In addition to the facts that distinguish this case from Collins, the unique facts of this case indicate that a reasonable person would have felt that he or she was in custody. When Morris exited his hotel room, he encountered a police officer with his gun drawn. Morris was immediately searched by another police officer. The police officer escorted Morris back into his hotel room, and Officer Corken testified that he positioned himself in front of the door, effectively blocking the entrance. The small hotel room was filled with police officers and detectives extensively searching Morris’s hotel room without a warrant, taking photographs, and bagging evidence, and at one point, even trying to fit zip ties around Morris’s wrists in order to check his story against C.K.’s. “This court has consistently held that it is the objective circumstances that this court reviews on appeal rather than the subjective views harbored by the Imparties.” Collins, 2014 Ark. App. 574, at 9, 446 S.W.3d at 206. We hold that, under these facts, a reasonable person would have felt that he or she was in custody for the purposes of Miranda.
We now turn to whether the custodial statement was made in the context of a police interrogation. Our supreme court has held that “interrogation” is direct or indirect questioning put to appellant by the police with the purpose of eliciting a statement from him or her. Arnett v. State, 353 Ark. 165, 172, 122 S.W.3d 484, 488 (2003). Clearly, Morris was the subject of a police interrogation, as the police officer who questioned Morris testified:
Defense Counsel: ... [Y]ou ask him a lot of questions that have to do with him, either his response is either going to put him in prison or not, right?
Detective Ray: Yes, sir.
Defense Counsel: That’s the kind of questions you’re asking. This is an interrogation.
Detective Ray: Okay.
Defense Counsel: Is it? I don’t know.
Deteotive Ray: I mean, yes, there were probably some—there were questions there could elicit a confession. Yes, sir.
The police officers who questioned Morris that morning testified that they had asked questions with an aim toward eliciting incriminating information. They accused Morris of rape, and the interview ended with Morris’s arrest on rape charges. We hold that the circuit court’s ruling that Morris’s statements were admissible because he was not in police custody was in error. Morris was in custody for the purposes of Miranda, yet he was subjected to a custodial interrogation by the police without having been informed of his right to remain silent, to seek counsel, or to stop the police questioning at any point even though he had already cooperated by answering their questions about the prior events that morning.
| UB. Harmless Error
Some constitutional rights are so fundamental that their violation can never be deemed harmless error, others are subject to the harmless-error analysis. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Jones v. State, 336 Ark. 191, 984 S.W.2d 432 (1999). The admission of statements obtained in violation of Miranda may constitute harmless error when there remains overwhelming independent evidence as to the defendant’s guilt. United States v. Packer, 730 F.2d 1151, 1157 (8th Cir. 1984). To conclude that a constitutional error is harmless and does not mandate a reversal, this court must conclude beyond a reasonable doubt that the error did not contribute to the verdict. Jones v. State, 336 Ark. 191, 207, 984 S.W.2d 432, 440 (1999). The admission of evidence may be considered harmless when there is overwhelming evidence of guilt, and the error is slight. Johnston v. State, 2014 Ark. 110, at 7, 431 S.W.3d 895, 899, reh’g denied (Apr. 17, 2014). In determining whether the error is slight, we look to see if the defendant is prejudiced. Id.
We cannot say that the evidence of Morris’s guilt was overwhelming. This case turns on C.K.’s and Morris’s credibility, and both presented a different version of the events of the evening. In his statement, Morris admitted having sex with C.K., and the only thing left for the jury to determine was whether Morris had used forcible compulsion to rape C.K.—a determination that relies entirely on the parties’ credibility and the resolution of their conflicting versions of events. Morris states that he had sex with C.K., eliminating the State’s burden of proving that Morris committed the first element of rape. As stated by the prosecutor: “You |12heard defendant’s recorded statement, and he agrees they had sexual intercourse. So we can scratch that off the list right now. The only thing we are really here to determine is forcible compulsion.” Because we cannot say the error in allowing Morris’s statement is harmless, we reverse his conviction and remand for a new trial.
Reversed and remanded.
Harrison and Brown, JJ., agree.
. Morris's redacted recorded statement included in the addendum measured a little over an hour in length.
. Arkansas Code Annotated section 5—14— 103(a)(l)(Repl. 2013) sets forth that a person commits rape if he or she engages in sexual intercourse or deviate sexual activity with another person by forcible compulsion. | [
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LARRY D. VAUGHT, Judge
h Brittany Walden appeals the Montgomery County Circuit Court’s July 8, 2015 order finding that Jacob Jackson is the father of her son H.R.W., changing the child’s last name to Jackson, establishing visitation for Jackson, ordering Jackson to pay future child support, and declining Walden’s request for retroactive child support. Walden argues that the current appeal was rendered moot by the circuit court’s subsequent modification of the order from which this appeal was taken. Because we held that the circuit court lacked jurisdiction to modify the order and therefore reversed and dismissed Walden’s companion appeal, Walden v. Jackson, 2016 Ark. App. 578, 2016 WL 6994815, we hold that the current appeal is not moot. We therefore address the merits of Walden’s appeal of the circuit court’s July 8, 2015 order.
12Brittany Walden gave birth to H.R.W. on November 11, 2014. The following January, Jacob Jackson filed suit to establish paternity, change the child’s birth certificate to reflect that he is the father, and to change the child’s last name from Walden to Jackson. Walden requested that, if Jackson was found to be the father, he be ordered to pay retroactive and future child support. Jackson was then conclusively determined to be H.R.W.’s father through DNA testing.
At a hearing on the matter, Jackson agreed to pay child support. Jackson testified that he had wanted to see H.R.W. since birth, but that, although Walden had repeatedly offered to let him come over and visit the child, he never did. The court ruled from the bench that the child’s last name would be changed because Jackson was proved to be the father, the child was still very young, Jackson was planning to be involved in the child’s life, and “that’s only right.” The court awarded Walden sole custody and ordered Jackson to pay future child support but denied Walden’s request for retroactive child support because Jackson had not had any contact with the child. The court issued a written order on July 8, 2015. It stated that the child’s name should be changed. It also stated that the court declined to award retroactive child support because “Jackson was not able to have visitation with the child pending this hearing.” Walden filed a timely notice of appeal.
Walden argues that the circuit court’s July 8 order was clearly erroneous in two regards: (1) it failed to determine, after consideration of the factors required pursuant to Huffman v. Fisher, 337 Ark. 58, 987 S.W.2d 269 (1999) (.Huffman I), that it was in H.R.W.’s best interest to change his name, and (2) it failed to award retroactive child support. We have previously held that “[w]here a full inquiry is made by the circuit court of the factors set out [in Huffman /] and | sa determination is made with due regard to the best interest of the child, the circuit court’s decision will be upheld so long as it is not clearly erroneous.” Poindexter v. Poindexter, 360 Ark. 538, 541, 203 S.W.3d 84, 87 (2005) (citing Huffman I, 337 Ark. at 69, 987 S.W.2d at 274). However, where the circuit court has failed to consider whether the name change is in the child’s best interest pursuant to the Huffman I factors, we must reverse. See id.
Our standard of review for an appeal from a child-support order is de novo on the record, and we will not reverse a finding of fact by the circuit court unless it is clearly erroneous. Ward v. Doss, 361 Ark. 153, 158, 205 S.W.3d 767, 770 (2005) (citing McWhorter v. McWhorter, 346 Ark. 475, 58 S.W.3d 840 (2001)). In reviewing a circuit court’s findings, we give due deference to that court’s superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony. Id. at 158, 205 S.W.3d at 770. As a rule, when the amount of child support is at issue, we will not reverse the chancellor absent an abuse of discretion. Id., 205 S.W.3d at 770. However, a circuit court’s conclusion of law is given no deference on appeal. Id., 205 S.W.3d at 770.
In Huffman I, the Arkansas Supreme Court held that the party who petitions for the change of a child’s name has the burden to demonstrate that such change is in the child’s best interest, and the court must consider the following factors in determining best interest;
(1) The child’s preference;
(2) The effect of the change of the child’s surname on the preservation and development of the child’s relationship with each parent;
(3) The length of time the child has borne a given name;
(4) The degree of community respect associated with the present and proposed surnames;
(5) The difficulties, harassment, or embarrassment that the child may experience from bearing the proposed surname; and
(6) The existence of any parental misconduct or neglect.
Huffman I, 337 Ark. at 68, 987 S.W.2d at 274. The Arkansas Supreme Court later explained that the circuit court may weigh only those factors for which the parties provide evidence and which are relevant to the circumstances. Huffman v. Fisher, 343 Ark. 737, 38 S.W.3d 327 (2001) {Huffman II). The court stated that a name change cannot be based on a noncustodial parent’s desire to “connect” with the child. Id.
In this case, the court’s July 8, 2015 order simply states that H.R.W.’s last name shall be changed. It neither provides any analysis as to any of the Huffman factors nor states that the name change is in the child’s best interest. Pursuant to Poindexter and Huffman I, we must reverse and remand in order for the circuit court to conduct the required best-interest analysis.
Walden also argues that the circuit court erred in declining to award retroactive child support because it found that Jackson had. not been able to have visitation with the child since birth. Arkansas law is clear that child support is an obligation owed to the child independent of the noncustodial parent’s relationship or visitation with the child. Newton v. State, Office of Child Support Enft, 2013 Ark. App. 53, 5, 2013 WL 361827 (citing Lyons v. McInvale, 98 Ark. App. 433, 439, 256 S.W.3d 512, 516 (2007); Henson v. Money, 273 Ark. 203, 617 S.W.2d 367 (1981)). Our courts have repeatedly upheld a circuit court’s order awarding retroactive child support from the date of the child’s birth to the date of judgment. See Barnes v. Barnes, 311 Ark. 287, 843 S.W.2d 835 (1992). Moreover, Arkansas Code Annotated section 9-10-lll(a) (Repl. 2015) states that “[i]f it is found by the circuit court that the accused is the father of the child and, if claimed by the mother, the circuit court or circuit judge shall give judgment for a monthly sum of not less than ten dollars ($10.00) per month for every month from the birth of the child until the child attains eighteen (18) years of age.” (Emphasis added.) The plain language of the statute requires |sthat an award of child support under the statute must flow from the date of the child’s birth. Therefore, we hold that the circuit court’s determination that Jackson is not be required to pay retroactive child support based on his lack of contact with the child was in violation of section 9-10-lll(a). The statute provides no exceptions, and our caselaw is clear that a parent’s child-support obligation does not depend on his relationship or visitation with the child. Newton, 2013 Ark. App. 53, at 5. Accordingly, we reverse the circuit court’s order declining to award retroactive child support.
Reversed and remanded.
ABRAMSON and BROWN, JJ., agree.
. Walden’s brief asserted that this appeal is moot but alternatively presented points for reversal.
. Moreover, the court’s decision on this point was clearly erroneous because the parties agreed that Walden had repeatedly offered Jackson opportunities to see the child, which he chose not to do. | [
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PER CURIAM
_JjThis is a pro se appeal from the dismissal of a petition for judicial review that was filed pursuant to the Administrative Procedure Act-Arkansas Code Annotated sections 25-15-212 to -219 (Repl. 2014). After a thorough review, the State concedes that the 2014 amended sentencing order appears illegal on its face. The circuit court’s dismissal of Ward’s petition is affirmed, however the matter is remanded to the sentencing court to vacate the August 25, 2014 amended sentencing order.
Appellant Cody Ward pleaded guilty to one count of manslaughter and is incarcerated in the Arkansas Department of Correction (ADC) pursuant to a sentencing order entered by the Mississippi County Circuit Court on March 5, 2013. The order ^reflected a sentence of 240 months’ imprisonment for the crime of manslaughter and the imposition of a consecutive firearm enhancement of 120 months’ imprisonment pursuant to Arkansas Code Annotated section 16-90-120 (Repl. 2006). The sentencing order further reflected that the crime had been committed on June 18, 2012, that Ward had a “0” criminal history score, and that Ward had not been sentenced as a habitual offender. The second page of the March 5, 2013 sentencing order reflected that the total term to be served “for all offenses” was 240 months’ imprisonment.
The ADC initially calculated Ward’s term of imprisonment to total an aggregate term of 240 months’ imprisonment. However, Ward’s time computation card was changed by the ADC on July 14, 2015, to reflect an increase in the time to be served from an aggregate term of 240 months’ imprisonment to a term of 360 months’ imprisonment. The ADC’s recalculation of Ward’s sentence moved his parole date from March 6, 2016, to November 5, 2017. In response to the recalculation of his sentence Ward filed a grievance and alleged that he was a first-time offender that had been convicted of a Class C felony offense which carried a maximum penalty of 120 months’ imprisonment; that the enhancement of an additional 120 months’ imprisonment was included in the total sentence of 240 months’ imprisonment; and that the ADC had misinterpreted the sentencing order and had illegally increased his sentence for manslaughter by 120 months. Ward contended below, and in his argument on appeal, that the sentencing order itself was not illegal, but that the ADC had interpreted the order to illegally extend 'the duration of his incarceration.
While the ADC alleged that the Mississippi County Circuit Court had entered an amended sentencing order on August 25, 2014, which increased the aggregate sentence to | s360 months’ imprisonment, it did not include this amended order in the record that was initially brought before this court. Because the ADC failed to include the amended sentencing order in the record, and in view of Ward’s allegations that the ADC had extended his term of imprisonment by misinterpreting the ambiguous sentencing order entered on March 5, 2013, we found that Ward had stated sufficient facts to raise a liberty interest that entitled Ward to judicial review of the ADC’s actions under our holding in Clinton v. Bonds, 306 Ark. 554, 557-58, 816 S,W.2d 169, 171-72 (1991). We ordered the ADC to supplement the record with a certified copy of the amended judgement and commitment order that the ADC alleged was the basis for its recalculation. The ADC supplemented the record with a certified copy of the 2014 amended sentencing order which reflected that the circuit court of Mississippi County had increased Ward’s aggregate sentence from 240 months’ imprisonment to 360 months’ imprisonment.
Both parties were subsequently ordered to file supplemental briefs to address the issue of whether the amended sentencing order results in an illegal sentence. Ward argues that the amended sentencing order is illegal on its face and that the ADC erred by recalculating his sentence based on an invalid amended order. Ward further argues that the ADC and the circuit court had a duty to address the illegality of the amended order and to correct the' sentence. In its supplemental response, the ADC concedes that the amended sentencing order is illegal on its face in that it exceeds the maximum penalty for manslaughter and that there is no indication in the record that any statutory enhancement was applied to the sentence.
However, the ADC correctly argues that it has not been granted the authority either by statute or through case law to modify a sentence imposed by a circuit court, and that the Administrative Procedure Act is not the correct vehicle by which Ward can obtain relief. We therefore affirm the dismissal of the action by the Jefferson County Circuit Court.
Nevertheless, notwithstanding the procedural posture of this case, the issue of the illegality of a sentence may be raised at any time, because the unlawful confinement of an individual under a sentence longer than that permitted by statute constitutes a denial of liberty without due process. Renshaw v. Norris, 337 Ark. 494, 497-98, 989 S.W.2d 515, 517 (1999). Because the imposition of an illegal sentence is viewed as a violation of basic constitutional rights, this court has consistently viewed the issue as being an issue of subject-matter jurisdiction, in that it cannot be waived by the parties and may be addressed for the first time on appeal. State v. Webb, 373 Ark. 65, 69, 281 S.W.3d 273, 276 (2008). Sentencing in Arkansas is entirely a matter of statute. Esry v. State, 2014 Ark. 539, at 3-4, 453 S.W.3d 144, 146-47 (per curiam). No sentence shall be imposed other than as prescribed by statute. Id. A void or illegal sentence is one that is illegal on its. face. Id. A sentence is illegal on its face when it exceeds the statutory maximum for the offense for which the defendant was convicted. Id. Because the amended sentencing order had the effect of extending Ward’s parole eligibility date beyond March 6, 2016, and. in view of the fact that the ADC has conceded that the amended order imposed a sentence that exceeded the maximum statutory penalty, it is likely that Ward is currently being wrongfully detained.
Accordingly, the circuit court’s order dismissing the petition is affirmed; the matter is remanded to the circuit court of Mississippi County to vacate the amended sentencing 1 ¿order within 5 days and notify the ADC of the change in Ward’s sentence. We note that although we are affirming the appeal from the administrative decision, we encourage the ADC to review his parole eligibility in light of this opinion.
Affirmed in part and remanded to the Mississippi County Circuit Court in part. | [
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