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Bunn, C. J.,
(after stating the facts). The determination of this case turns on the application of the statute of limitations to the facts. These facts show that there is no separate writing evidencing the debt. secured by the mortgage, and also that, by reason of the payments and credits made by and given to the mortgagor on the debt secured, the statute of limitations, as from a new point, began to run on the 20th October, 1887 ; and this suit to foreclose was instituted on the 23d July, 1892, — the statute having run during the intervening time, to-wit: five years, four months and three days.
Under our statute, approved March 31, 1887, the right of action to foreclose a mortgage is barred after the same length of time as is the action on the debt secured thereby, and therefore it follows that the only inquiry in this case is, what is the limitation on the debt? and to answer this inquiry, what, if any, is the evidence of the debt sued for? If the recitals in the mortgage, above and beyond those merely identifying the debt secured, are not sufficient to support a promise to pay, then it follows that the debt rests on no better foundation than as being a mere item of open account, and is barred in three years, and the plaintiff’s action fails.
The general rule is that a mortgage is not the evidence of the debt, and for that reason, ordinarily, its recitals are not such as make a prima facie case of indebtedness on the part of the mortagor, upon which alone a personal judgment might' be rendered against him. Scott v. Fields, 7 Watts, 360; Fidelity Ins. & Trust Co. v. Miller, 89 Pa. St. 26; Drummond's adm'rs. v. Richards, 2 Munford (Va.), 337; Tonkin v. Baum, 114 Pa. St. 414; Smith v. Stewart, 6 Blackford (Ind.), 162; Weil v. Churchman, 52 Ia. 253; Shelden v. Erskine, 78 Mich. 627; Brown v. Cascaden, 43 Ia. 103; Newbury v. Rutter, 38 Ia. 179; Saunders v. Milsome, L. R. 2 Eq. 573; Marryatt v. Marryatt, 28 Beav. 224; 1 Jones on Mortgages, sec. 70 ; 2 id. sec. 1225 ; 1 Pingrey on Mortgages, sec. 205; 2 id. secs. 1530, 2030 ; Kimball v. Huntington, 10 Wend. 675; and Elder v. Rouse, 15 Wend. 218.
The recitals in a mortgage, however, may be sufficient to support a promise, and if that were so in the case under consideration, the statute bar would be ten years, the same as that of the mortgage, and' the decree should be affirmed ; but a majority of the court are of the opinion that the recitals are not sufficient to support a promise, and that the mortgage is not the evidence of the debt, and, therefore, that the statute bar is three years. Other questions raised it is unnecessary to consider.
Reversed and remanded, with instructions to overrule the demurrer. | [
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Winchester, Special J.
The record discloses that at the-term, 1893, of the Pulaski circuit court, W. E. Woodruff was indicted for the crime of false pretenses, said indictment containing two counts. A demurrer was interposed by the defendant on the ground that more than one offense was charged in the indictment, and, the state electing to stand on the first count in the indictment, the demurrer was overruled. The •defendant entered a plea of not guilty, and filed a motion for a change of venue, and the case was sent to Perry county. Here the defendant entered a demurrer in short •on the record, which was overruled. The case was tried, the jury returning a verdict of guilty, and assessing defendant’s punishment at imprisonment for one year in the state penitentiary. A motion was filed in arrest of judgment, which was overruled, and defendant was sentenced in accordance with the verdict. He filed a motion for new trial, which was. overruled, took his bill of exceptions, and prayed an appeal to this court, which was granted by the chief justice. All of the instructions to the jury asked by the defendant were refused, and the only instructions given were given of the court’s own motion.
The appellant was indicted under section 1573, Sandels & Hill’s Digest, which is as follows: “ Every-person who, with intent to defraud or cheat another, shall designedly, by color of any false token or writing, or by any other false pretense, obtain a signature of any person to any written instrument, or obtain from any person any money, personal property, right in action, or other valuable thing or effects whatever, upon conviction thereof shall be deemed guilty of larceny, and punished accordingly.
■ The indictment charges: “The said William E. Woodruff, in the county and state aforesaid, on the 6th day of January, 1891, being then and there the duly-qualified and acting treasurer of the state of Arkansas, unlawfully and ■ feloniously intending and devising-to cheat and defraud the state of Arkansas, and James, P. Eagle, and W. S. Dunlop, and Ben. B. Chism, who, together with the said William E. Woodruff, constituted, the state debt board of Arkansas, falsely, fraudulently and designedly did pretend and represent to the said James P. Eagle, W. S. Dunlop and Ben B. Chism, members of the state debt board of Arkansas as aforesaid, that he, the said William E. Woodruff, who, at the time-aforesaid, was the duly qualified and acting treasurer of the state of Arkansas, had on the 12th day of Decern ber, 1890, received of and from one Johnson E. Jones certain coupons and bonds of the state of Arkansas, to-wit : (description omitted), being a total of 171 coupons of the value of $30 each, and that the said Johnson L. Jones desired to exchange the same for state certificates of indebtedness, commonly called bond scrip, and that said coupons were a valid and outstanding charge against the state of Arkansas, and that the bonds from which said coupons had been clipped had been redeemed, and which coupons he, the said William E. Woodruff, then and there exhibited and presented to the said Jambs P. Eagle, W. S. Dunlop and Ben B. Chism, members of the state debt board of Arkansas as aforesaid, by means of which false pretenses and representations, he, said William E. Woodruff, did then and there fraudulently and feloniously obtain the signatures of James P. Eagle, governor of Arkansas, and president of the state debt board, W. S. Dunlop, auditor of the state of Arkansas, and member of the state debt board, and of Ben B. Chism, secretary of the state of Arkansas, and secretary of the state debt board of Arkansas, to a written instrument, to-wit, to order No. 126 of the state debt board of Arkansas, authorizing him, the said William E. Woodruff, treasurer of the state of Arkansas as aforesaid, to issue state certificates of indebtedness, commonly called bond scrip, to John E. Jones, to the amount of $5,130, in exchange for the said 171 coupons, as above described and set fo'rth, which said written instrument was in words and figures as follows, to-wit (Order omitted) : and which said written instrument, with the signature of the said above named James P. Eagle, governor of Arkansas, and president of the state debt board, and W. E. Woodruff, treasurer, and W. S. Dunlop, auditor of the state of Arkansas, and a member of said state debt board, and Ben B. Chism, secretary of the state of Arkansas, and secretary of said state debt board, signed thereto, was then and there delivered to the said Win. E. Woodruff, treasurer as aforesaid, it being of the value of $5,130.” Then follows a negation of the alleged false pretenses and representations, and the following : “And the bonds from which said coupons had been clipped had not been redeemed, but said coupons had been received at some date previous to December 12th, 1890, into the treasury of the state of Arkansas, in payment of debts due the state of Arkansas; all of which, he, the said Wm. E. Woodruff, then and there well knew, against the peace and dignity of the state of Arkansas.”
The appellant questions the sufficiency of the indictment by demurrer, in his motion in arrest of judgment, and by apt instructions, saying that it charges no public offense. His main contention is that the order upon which the indictment is predicated is an instrument unknown to the law.
The indictment under our statute sufficiently charges the crime of false pretenses. Sandels & Hill’s Dig. sec. 1573; lb. secs. 2075-2076; Wood v. State, 47 Ark. 488. By the acts of 1887 (approved April 5, 1887), the state debt board was created, composed of the governor, secretary and auditor of state, having certain duties, and clothed with certain powers, as therein set out. This act was amended by an act, approved April 9, 1889, which by its terms Was to take effect and be in force from and after its passage. By the first section of the latter act the treasurer of state was made a member of the state debt board. By. the third section of both acts it is provided “that the entire state debt board shall be necessary for the transaction of business.” Sections six (6), nine (9) and eleven (11) of the act of 1889 will be noticed particularly in this connection. These sections read as follows :
“Sec. 6. The treasurer shall, under and by direction of the state debt board, pay out the money now in or hereafter to be paid into the sinking fund by redeeming, under such regulations as the state debt board may adopt under the provisions of this act, all of the five and six per cent, bonds of the State Bank and .Real Estate Bank of Arkansas, and the bonds and past due coupons of the six per cent, funding bonds of 1869 and 1870, and the overdue interest on the same, now outstanding, excepting those now belonging to the United States, and those held in trust by the United States, and those that have been declared illegal by amendment to the constitution of this state, numbered one (1), and such of the refunded bonds of the state as may be found - to have been issued in lieu of the bonds of the state which were illegally disposed of by the officers, agents or commissioners of the Real Estate ■ Bank- of Arkansas, or of the State Bank of Arkansas.”
“Sec. 9. Said board shall not accept any proposal for sale at a greater price than the par value and accrued interest of any such bonds. Nor shall said board accept a proposal for sale of less than the whole of any bond, including interest, nor at any time make a partial payment on any bond, and no coupons shall be paid unless attached to and surrendered with the bond. Provided, that where interest coupons may be outstanding, and the principal of the bond from which they were taken has been paid in full, such coupons may be treated as though they were original bonds. Provided further, that said state debt board may reject any and all bids under the provisions of this act.”
“Sec. 11. That said board may from time to time direct the treasurer to cause to be engraved and printed, in denominations of 1, 2, 5, 10, 20, 50, or 100 dollars, state certificates of indebtedness, to be signed by the treasurer, and exchanged by him, upon the order of the board, for any of the outstanding, valid and undisputed bonds and matured coupons of the state, under the same restrictions and limitations and upon the same terms and conditions as prescribed for the purchase of bonds in sections six (6) and nine (9) of this act. And the sum of two thousand dollars, payable out of the sinking fund, is hereby appropriated to pay for the engraving and printing of said certificates, for the two years commencing on and after the date of passage of this act.”
In pursuance of the powers granted it in these sections the state debt board adopted the following rules and regulations:
“Littee Rock, May 8, 1889.
“The state debt board met. Present, J. P. Eagle, governor; W. S. Dunlop, auditor; W. E. Woodruff, treasurer, and B. B. Chism, secretary of state. On motion, the following regulations were adopted. Additional regulations for transacting of business of the state debt board.
“4th. Holders desiring to convert bonds into certificates of indebtedness shall file the same with the treasurer of state for examination and safe keeping. If receivable-, the treasurer shall give an official receipt therefor, describing the bonds and coupons by numbers and dates, and the holder shall present the same to the secretary of the board, who shall enter in the record a memorandum authorizing the exchange after the order shall have been signed by the board, also describing the bonds and coupons by numbers and dates. At the next meeting of the board the treasurer shall present all the bonds filed for exchange since the last meeting, for inspection and examination by the board. If found correct, an order shall be made directing the treasurer to issue and deliver to the proper holder of the bonds filed the correct amount in certificates to which each of them is entitled. And all bonds so presented for exchange into certificates shall be immediately canceled by the board, and returned to the treasurer, who shall keep the same as vouchers, and make all proper entries upon his books.
“On motion the board adjourned.
James P. BageE, Governor,
W. S. Duneop,
Ben. B. Chism, Sec’y State.
W. B. "Woodruff.”
It will be seen that the treasurer was authorized by section 11 of this act to exchange the state certificates of indebtedness upon the order of the board for any outstanding, valid and undisputed bonds and matured coupons of the state, under the same restrictions and limitations, and upon the same terms and conditions, as prescribed for the purchase of bonds in sections six (6) and nine (g) of this act.
Hence this order was essential to the exchange of coupons for state certificates of indebtedness, and the treasurer had no authority to act without it. It was as much a part of the transaction of exchanging the coupons for state certificates of indebtedness as was the treasurer’s receipt to the person who deposited the coupons with him for exchange.
By the regulations of the board this order was delivered to the party who presented the treasurer’s official receipt for the coupons, and the holder could get the state certificate of indebtedness from the treasurer only upon this order. It is a paper, a “written instrument,” such as was contemplated in the section under which the indictment was found, and it is alleged that it was signed by all the members of the state debt board, and delivered to the appellant. 2 Bish. Cr. Law, sec. 460, sub. 4; People v. Genung, 11 Wend. 18; People v. Gates, 13 Wend. 311.
The appellant presents for our consideration sixty-six exceptions to as many alleged erroneous rulings of the court in the progress of the trial. We shall notice only such of these as seem to the court essential to a proper disposition of this case.
The appellant excepted to the introduction of the testimony of James P. Eagle and Thomas H. Simms, who were called by the state, as the record recites, “in rebuttal,” and who testified as to the state of appellant’s coupon account, and who were allowed to state, over his objection, the one as to the result of the investigations of the “burning board,” which commenced its work in 1891, of which he was a member, and the other as to the result of his investigations as special master in the case of the State of Arkansas v. W. E. Woodruff, et al., pending in the Pulaski chancery court, which investigation was made in 1892. We discuss these objections together, because the same principle controls in both of them. Each witness states that a report was made showing the result of the investigations, and appellant contends that the reports were the best evidence.
The investigations of the “burning board,” as the record discloses, occupied six months, and the investigation of Special Master Simms sixteen weeks. Each was allowed to state the balance found against appellant on his coupon account. It is proper to say here that these investigations were of the accounts and affairs of appellant’s office as treasurer of state;
It is held that a witness who has inspected the accounts between the parties may be permitted to testify as to a general balance, but will not be permitted to give evidence of the particular contents of the books. 1 Greenl. Ev. (15 ed.), sec. 93; Leeser v. Boekhoff, 38 Mo. App. 453.
And especially is this proper where, as in this case, the evidence is the result of voluminous facts, and the inspection of many books and papers, the examination of which could not conveniently take place in court, and where, too, the appellant was a party to these proceedings, and has had ample time to inspect these reports, and might by cross-examination have tested the accuracy of the statements made by these witnesses. 1 Greenl. Rv. sec. 93; 1 Rice, Rv. sec. 15H
The majority of the court is of opinion that the testimony was properly admitted.
Appellant insists that the testimony of Hudson and x i . Dewoody, witnesses introduced by the state, should have been excluded, because they were allowed to testify as to facts disclosed by memoranda, which appeared upon envelopes which each held in his hands, which memoranda each stated were made by him at the time of the transactions to which they referred, and truly represented the transaction; each stating that he relied upon the memoranda for his statements, and not upon present recollections. The evidence was admissible. 1 Greenl. Rv. secs. 436, 437 and 440.
Appellant also insists that J. B. Moore’s testimony was improperly admitted. This witness testified that he was employed in the office of the secretary of state; that he had searched in that office for the original report made by the state debt board to the legislature of 1887, but could not find it. He stated further, “I have here the original senate journal for that year.” He was allowed to read from said journal extracts from said report with reference to certain bonds from which some of the coupons named in the indictment had been clipped —these extracts tending to prove that the bonds were outstanding, that they had not been redeemed. This testimony was properly admitted. The report was signed by the appellant as a member of the state debt board. The secretary of state was the proper custodian of the original report and of the senate journal. Sandels & Hill’s Dig. sec. 3171 (act Jan. 4, 1849); lb. sec. 3547 (act Dec. 14, 1875). The original not having been found where it ought to be, the original senate journal was admissible. Sandels & Hill’s Dig. sec. 2880 (act Jan. 4, 1849); 1 Greenl. Ev. secs. 483, 484 and 491.
Appellant offered in evidence the deposition of M. D. Bell, taken June 12th, 1893, by which the state, in a case then pending in the Pulaski chancery court wherein the state of Arkansas was - plaintiff, and the appellant, and the sureties on his official bond were defendants. It was admitted by the state that this witness had been duly summoned to testify for defendant on the trial of this case, and that he had since died.
The testimony of a deceased witness can be used in the trial of a cause, when admissible at all, only upon conditions well known to every practitioner. 1 Greenl. Ev. secs. 163, 164 and 165.
It is stated by Mr. Weeks that, as a general rule, depositions are in no case admissible in criminal proceedings unless by force of express statutes, or possibly by consent of the prisoner in open court. Weeks, Dep. sec. 558; 3 Greenl. Ev. sec. 11 ; McLane v. Georgia, 4 Ga. 335, and Dominges v. State, 15 Miss. 475. And in section 540, the same author (Weeks, Dep.), says: “In criminal proceedings, the latitude allowed in some civil cases at common law, in allowing depositions of witnesses who cannot be found after diligent search, does not obtain, whether the depositions be taken before a magistrate or coroner * * * This rule obtains both in England and America. In the latter country it has been held that both where the witness could not be found within the jurisdiction, but was reported to have gone to an adjoining state, and where he was proved to have left the state after being summoned to attend at the trial, his deposition was equally inadmissi ble.” Wilbur v. Selden, 6 Cow. 162; Finn’s Case, 5 Rand. 701; 1 Taylor, Ev. sec. 442.
‘‘Under statutes, or by consent of the prosecuting officer, evidence may be taken by the defendant by ordinary deposition.” Bish. Crim. Pro. (3 ed.), sec 1206; 3 Rice, Ev. p. 381.
“ The state, therefore, cannot authorize the taking and using of depositions against him (defendant), but he may use the depositions of witnesses in his behalf under any state of case that the legislature may allow.” Kaelin v. Com., 84 Ky. 354.
In offering this deposition appellant made no showing except that the witness had been summoned, (and was dead). Without deciding whether the deposition was admissible, had a proper showing been made, the majority of the court is of opinion that it was properly excluded.
The appellant insists that he was prejudiced by certain remarks of the prosecuting attorney, who, in the course of his argument, stated ‘‘that this was a case of special interest to every taxpayer in the state, and to everyone of the jury, and that in consequence of its special interest, and the concern that all the people felt in the result of it, he had asked the attorney general of the state to assist him in the prosecution, and the attorney general had done and was doing so, because it was his duty under the law, relating as it did to the revenue raised by taxes paid by the people.” While we do not find it in the record, yet we gathered it from the oral argument before us, as an admitted fact, that one of the learned attorneys for the appellant had sharply questioned the active participation of the attorney general in the prosecution, and that these remarks of the prosecuting attorney were made in explanation of his presence in the case. We find no prejudicial error in these remarks.
Appellant urges as a ground of reversal that the attorney general, in the closing argument in the case, was guilty of misconduct. The record states that the attorney general “was permitted by the court in said closing argument, and over and against the objection of defendant, for the reason that if the conviction was wrong the governor would pardon him.” The transcript is evidently incomplete, but this court must consider it as it finds it, as to the remarks objected to, and must conclude that the trial judge properly overruled the objection. Every person accused of a public offense is entitled to a fair and impartial trial, and, if convicted, should be convicted because the law and the testimony justify it. This court has heretofore, on more occasions than one, set the seal of its disapproval upon a practice sometimes resorted to by zealous advocates of injecting into their speeches matters outside the record and outside the scope of legitimate argument. And, while the great weight of authority seems to be that a direction from the trial judge to the jury to disregard such remarks cures the harm, yet it is possible that even an admonition from the judge to the jury to disregard the objec-, tionable remarks may not always remove from their minds the impressions made, and it results that harm may come to the accused. Hence the duty of judges and the attorneys representing the state to guard carefully and jealously the constitutional and statutory rights of the accused. Vaughan v. State, 58 Ark. 353; Little Rock, etc., R. Co. v. Cavenesse, 48 Ark. 106; Holder v. State, 58 Ark. 473.
We do not deem it necessary to discuss all the instructions asked by the appellant, nor all of his objections to the instructions given by the court. We notice, however, his instruction No. 4, refused by the court. “If you find from the evidence that the defendant was the holder of the coupons mentioned in the indictment, and if they did not belong to the state, but belonged to the defendant himself, or to some other person for whom he held them, he cannot be convicted for obtaining the signature of the members of the state debt board to an order to exchange these for state certificates, it matters not what representations be made for that purpose.”
In the opinion of a majority of the court this instruction was properly refused. It is true that the writers upon criminal law state the proposition that a false representation tending merely to induce one to pay a debt previously due from him is not within the statute against obtaining money by false pretenses, though payment be thereby obtained (2 Bish. Crim. Law, sec. 466); or, as Mr. Wharton states it, “that the pretence used honestly (the italics ours) to collect a just debt has been ruled to be a defense.” 2 Whart. Crim. Law, sec. 1184«. See also Colby’s Crim. Law, p. 566. These authors quote the same cases as sustaining the text. We have carefully examined all these cases, and find they are decided upon the theory that the accused gets only what is due him, and hence no wrong is done; following Rex v. Williams, 7 Carr. & P. 354. In this case the servant of a creditor went to the debtor’s wife and got from her two sacks of malt, saying his master had purchased them of her husband, which was false. It was ruled by Coleridge, J., on an indictment against the servant, that if his object was not to defraud, but merely to enable his master to compel payment of the debt, he must be acquitted. The cases cited by the text writers in support of this contention can be numbered upon the fingers of the two hands.
It has been held, however, to be no defense to a charge of obtaining money by false pretenses that the person from whom the money was obtained by the prisoner was at the time indebted to the prisoner to an amount equal to said sum obtained by the false repre sentaticm, and that it was the intention of the prisoner to apply such money on such debt. People v. Smith, 5 Parker, 490, cited in Colby’s Crim. Paw, p. 566.
This decision seems really more in consonance with Rex v. Williams, supra, than the others cited contra; and, even applying the law as stated in the opinion of Coleridge, J., to the instruction under consideration, it would seem that it should be qualified by his statement “ if the object was not to defraud,” but merely to collect his debt.
But not one of the text writers, as far as we have been able to discover, and pone of the cases cited, presents such a state of facts as we have here. In those cases one individual had practiced his deceptions upon another individual. Here the contention ■ is that the treasurer of the state, and a member of the state debt board, undertakes by false pretenses to obtain advantage of the state, not to collect a debt, but to obtain in exchange for coupons, which can be used for one purpose only, — “in payment of the purchase money of lands whereof the state has title by reason of the foreclosure of mortgages executed to the said bank,” (Real Estate Bank, Acts 1879, p. 10) and for the payment of which no provision is made, and the collection of which he cannot enforce, — more valuable evidences of indebtedness, to-wit: “state certificates of indebtedness,” which are receivable, not only for the same purpose for which coupons are receivable, but also for sinking fund tax, for the state’s pro rata of the purchase money paid for lands forfeited to the state for nom-payment of taxes, and for liquor licenses collected on the part of the state (Acts 1889, p. 161), and for the payment of which an annual tax is levied “as an inviolable condition” of the contract. And, besides, in the indictment, the appellant is charged with obtaining the signatures of the members of the state debt board to an order authorizing the treasurer to exchange coupons clipped from bonds which had not been redeemed for state certificates of indebtedness, which exchange was forbidden by law, Acts 1889, p. 161. The instruction asked wholly ignores this provision. But, aside from these reasons, we hold that it is against public policy, subversive of sound morals, and injurious to the best interests of the state —a thing not to be tolerated — that an officer of the state shall, in violation of express enactment, in violation of his trust, and by false pretenses obtain and enjoy an advantage, the fruits of his deception, and not be liable to punishment, even though a different rule might prevail as to similar transactions between individuals.
The court is of the opinion that the other instructions asked by the appellant were properly refused ; for, while some of them, no doubt, correctly state the law, yet these, we think, were covered by the instructions given.
We come now to consider appellant’s objections to ... the instructions given by the court, only two of which we will notice. He contends that there was error in the third proposition of the first instruction : “The court instructs the jury that it is not necessary that the state should show that the representations made were false as to all the coupons mentioned in the indictment; but it is sufficient if they were false, and known by defendant to be so, as to any one or more of said coupons, of the value of more than ten dollars.” The contention is that the pretenses must be proved as laid in the indictment as to all the coupons. The law seems well settled against this contention. In presenting these 171 coupons as' exchangeable under the law for state certificates of indebtedness, it is as though he had said of each coupon, this is a valid outstanding obligation of the state, and the bond from which it was clipped has been redeemed. The holder is entitled to the exchange. The authorities are conclusive. State v. Vandimark, 35 Ark. 396; Rapalje on Larceny, secs. 433, 434; 2 Bish. Crim. Law, sec. 418, and cases cited.
Appellant challenges the court’s second instruction, which contains the following statement of the law: “The jury are instructed that coupons clipped from bonds that have not been redeemed cannot be exchanged for bond scrip, and such an exchange is a fraud upon the state, and an intention to have such exchange made, knowing the bonds from which the coupons were clipped had not been redeemed, is an intention to defraud the state.” This statement of the law to the effect that an intention knowingly to exchange coupons clipped from unredeemed bonds is in law an intention to defraud the state, is nowhere modified in the charge of the court. On the contrary, the court returned to it, and emphasized it in another portion of his charge. After having properly told the jury that if the defendant, by inadvertance or mistake, took from the treasury coupons, honestly believing that they were his own, and not the property of the state, leaving in their stead others of same kind and value belonging to him, this would show an absence of intention to defraud, without which intention defendant would not be guilty, he adds these words, “provided he did not know that said coupons so taken were clipped from bonds that had not been redeemed.”
Thus it is apparent that the court announces that, while ordinarily it is necessary, in order to convict, that a fraudulent intent to defraud be shown, yet that such actual'intent to defraud need not be shown if the defendant attempted to exchange coupons known to have been clipped from bonds which were unredeemed. “Such an exchange,” said the court, “is a fraud upon the state, and an intention to have such an exchange made, knowing the bonds from which the coupons were clipped had not been redeemed, is an intention to defraud the state.” We do not think this was a correct statement of the law in this case. A material allegation in this indictment was that the defendant designedly, and with the intention to defraud the state, made certain false representations to the board. In order to convict, it must be shown by the evidence that the defendant made these representations to the board with an.actual intent to defraud the state. Whether such an intention exists on his part is a question for the jury, and the court cannot take it from them by telling them that if certain' facts be proved, they constitute an intention to defraud the state. The defendant may have known that the coupons which he asked to exchange were clipped from unredeemed bonds, and yet intended no fraud upon the state. He testified that he did not intend to defraud the state, nor to make any false representations to the board, and, however unreasonable this statement may have appeared to the court, it was the constitutional right of the defendant to have that question submitted to the jury. He may have known that the coupons which he asked to exchange for state certificates of indebtedness were clipped from bonds which had not been redeemed, and yet as a fact intended no violation of-the law. Ordinarily, one cannot set up ignorance of the law as an excuse for a violation of the law, but there is an exception when, to constitute the offense, a particular intent must exist on the part of the defendant at the commission of the act; in such case ignorance of the law, like any other fact, may be shown in explanation and extenuation of the act.
‘‘When the act done is 7nalum in se, or where the law which has been infringed was settled and plain, the maxim, Jgnorantia legis neminern excusat, in its vigor will be applied, but where the law is not settled, or is obscure, and where guilty intention, being a necessary constituent of the particular offense, is dependent upon a knowledge of the law, this rule,, if enforced, would be misapplied.” Cutler v. State, 36 N. J. L. 127; Rapalje, Larceny, sec. 229; Felker v. State, 54 Ark. 497; State v. Norton, 76 Mo. 180.
We have, in view of the official relation which appellant bore to the state, and in view of the many serious questions presented, given this case careful study. We have considered every one of' 'the many assignments of error presented in the record, and we find that only the one last discussed, to a majority of the court, seems well taken.
For the error indicated above, the judgment is reversed, and the case remanded, with instructions to grant appellant a new trial. | [
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Battle, J.
When the Texas Produce Company held the demised premises after the expiration of the term of two years, and thereafter paid, and Belding received, rent for the same according to the terms of the first tenancy, without any new or different agreement, it thereby became a tenant from year to year upon the terms of the original lease. Belding had the right to terminate the tenancy by selling the premises. When he did so, and at the same time sold his adjoining property, he became liable to the Texas Produce Company for two-thirds of the appraised value of the stable erected on the demised premises, according to the terms of the original lease. Schuyler v. Smith, 51 N. Y. 309, and cases cited.
There is no material or prejudicial error in the instructions of the trial court to the jury, and its judgment is affirmed. | [
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Hughes, J.
We find, from the record of the tax
saqe made by the clerk after the sale of the lots and land in controversy in this suit, and to which the appellant claims title by virtue of her purchase of the same at said sale, that it appears that the lots of land sold were sold for taxes, penalty and costs, and that the costs for which each tract was sold exceeded the amount for which the same could have been lawfully sold by twenty-five cents. It appears from said record that the costs for which each of said lots was sold amounted to eighty-five cents, whereas the greatest amount of costs for which each could have been lawfully sold was sixty cents, to-wit: To clerk, “for furnishing copy of delinquent lands to printer for each tract 5c.” (Sand. & H. Dig. sec. 3310); “for attending sales of ■delinquent lands and making record thereof, for each tract aforesaid, 10c.” {Id. sec. 3310); “for transfer on tax-books of land sold for taxes to name of purchaser 10c.” {Id. sec. 6614); “for each tract of land sold, 10c.” {Id. sec. 6608); “printer’s1 fee 25c.” (Id. sec. 4683); total, 60' cents.
The law allows 25 cents for certificate of purchase, •and this must have been included in the costs for which each tract was sold. At any rate, it appears that each tract was sold for the 25 cents too much costs. Under the decision in Goodrum v. Ayers, 56 Ark. 93, this is fatal to the tax sale. It is contended that, as a block of lots was sold as one tract, 85 cents would not exceed the lawful costs. But in such case the sale is void, as held by the circuit court, because the lots were sold en masse, and not separately. Cocks v. Simmons, 55 Ark. 104; Sub. 2 of sec. 6499, Sand. & H. Digest, and secs. 6502, 6540, 6582, 6607, id.; Montgomery v. Birge, 31 Ark. 491.
In Cooper v. Freeman Lumber Co., ante, p. 36, this court held that the clerk’s record, made after sale, under section 6612, Saudels & Hill’s Digest (5769 Mansfield’s Dig.), and not that made before the sale, under section 6606, Sandels & Hill’s Digest (sec. 5763, Mansfield’s Dig.), is the record which furnishes the evidence of the amount ■of taxes, penalty and costs for which each tract of land was sold, and that the showing made by that record ■cannot be contradicted by parol evidence.
It follows therefore that the tax title of Uena Salinger is void, and the decree of the court so holding is -affirmed.
The court adjudged the costs of the suit of forcible ■entry and detainer against the railroad company. As Mrs. Salinger had no possession of the property, and, without having had possession, could not maintain forcible eatry and detainer, this is error. Her possession would hardly amount to a “scrambling possession.” She had only placed some lumber on the lot, which was moved by the railroad company. Anderson v. Mills, 40 Ark. 192. The decree in this behalf is reversed, with directions to render decree for costs against Tena Salinger in favor of the railroad company in the suit of forcible-entry and detainer.
The heirs of William Black, deceased, were not served with process in the suit after his death, and were not made parties, so as to give the court jurisdiction to adjudicate their rights, though there was an order that the cross suit by the railroad company be revived against the administrator of the estate and the heirs of William Black, deceased, naming the heirs.
The decree is reversed, as to specific performance, for the want of proper parties, and the cause is remanded, as to this, with leave to the railroad company to bring in the heirs of William Black as defendants to their cross complaint against Gunn & Black for specific performance. | [
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Riddick, J.,
(after stating the facts.) We do not find that there was a mortgage on the property insured. The ruling of the circuit court in regard to the contention of appellant on that point seems to us correct, and we pass it without discussion. The main question to consider is whether the appellee, Parker, violated the . clause in his policy by which he agreed to keep a set of books showing a complete record of all business transacted, and to keep such books “in a fireproof safe at night, and at all times when the store mentioned in the policy was not actually open for business,” or in some secure place not exposed to a fire which would destroy the house where the business was carried on, and, in case of loss, to produce such books. The proof shows that' he kept the books mentioned in the policy, but he admits that he did not keep them in a fireproof safe, either by day or night, nor in any secure place not exposed to fire. As a result of this failure to keep the books in a fireproof safe at night, they were destroyed by the fire that burned the house in which the business was carried on. Appellee attempts to avoid the effect of failing to keep the books in a safe at night, as required by the policy, by showing that the saloon was kept open for business both night and day, and only closed on Sundays. His. contention is that he was only required to keep the books in a safe when the store was closed, and that, as the store was open for business both day and night, therefore he was not required to keep the books in a safe either day or night. In support of this contention, he cites Sun Insurance Co. v. Jones, 38 Fed. Rep. 19; and Sun Insurance Co. v. Jones, 54 Ark. 376.
While we agree with the appellee that the clause in this policy is substantially the same as that construed in those cases, we do not think we have in this case the state of facts found in those cases. It is true that some of the expressions of the court in one of those cases may seem to support the contention of appellee, yet, when we consider the facts there, we must conclude that those cases can have little weight here, for it is an established rule that “the language of a court must always be construed in reference to, and in connection with, the facts before it.” Bell v. Tombigbee Railroad Co., 4 Smedes & M. 549; Ram’s Legal Judgments, 250.
The plaintiffs there had a fireproof safe in their storehouse, in which their mercantile books were kept when not in use. It was their custom to take the books out in the morning, and lay them on the desk for use •during business hours. They were kept out until the business of the day was' closed, and the books were posted and written up, when they were put in the safe and locked up. Both of those cases rested on the same facts, and in both of them it was held that the insured .had not violated his covenant to keep the books in a “ safe at night,” etc., and the insured was held liable on his policy. It was said that “ the covenant to keep books, and the covenant to keep them in a safe, must be construed together, and, in the absence of an express stipulation to the contrary, the covenant to keep books will be construed to mean that the books shall be kept in the time and manner usual and customary with merchants.” Sun Insurance Co. v. Jones, 38 Fed. 19.
The covenant to keep the books in a fireproof safe at night, or in some place secure from fire, was recognized as valid and binding, but it was said that the proper construction of that clause was, “not that the books shall be kept in a safe from sunset to sunrise, but that they should be so kept from the time the business •of the day is ended, and the store closed for the night.”
This construction did no violence to that clause of the policy by which the assured obligated himself to keep his books “in a fire proof safe' at night, etc.” It •only gave it a reasonable interpretation. But this would not be true if we should adopt the construction contended for by appellee in this case. If we should hold that the fact that the store of appellee was kept ■open night and day, except on Sundays, excused him from keeping his books in a safe, or some other place secure from fire, what would become of that clause of the policy by which he expressly obligated himself to keep his books “securely locked in a fireproof safe at night,” etc. Manifestly, it would be abrogated, and we would, in effect, be making, by construction, a new contract for the parties. The rule in construing the language of an insurance policy is to resolve all doubts concerning its meaning in favor of the assured. But the courts cannot override the plain letter of the contract, or resort to strained constructions, in order to relieve a party from the effects of a failure to comply with, his contract.
The object and meaning of the clause of' the policy under consideration is, we think, free from doubt. It in effect stipulates that the insured shall keep his books in a fireproof safe, not only at night, but at all other times when the store is not actually open for business. The object in requiring a set of books to be kept, showing a record of the business transacted, and of the changes taking place from day to day in the stock of goods insured, is very apparent. Without such a record, the insurer has no means of ascertaining the amount or value of the goods destroyed, and for which he is liable. Making such a record is of no value unless it can be preserved from the fire that destroys the property. To guard against this, the appellee in this case covenanted that he would “keep such books securely locked in a fire proof safe at night, and at all times when the store mentioned in the policy was not actually open for business, or in some secure place not exposed to a fire which would destroy the house where said business is carried on, and, in case of loss,” that he would produce the books.
This court, in Western Assurance Co. v. Altheimer, 58 Ark. 575, said of a similar provision, that “the stipu lations of the ‘iron safe’ clause constituted an express promissory warranty in the nature of a condition precedent,” and that a strict compliance with it was necessary. In his work on insurance, Mr. Wood also says that siich promissory warranties must be strictly performed, ‘‘and that, too, without reference to the question whether they were material to the risk. The insurer is permitted to judge for himself upon what conditions he will assure a risk, and what is material thereto, and if he sees fit to insert immaterial conditions in the policy, the assured cannot defend against a breach thereof upon that ground. ****** The assured has no election, but must stand upon his performance of them.” 1 Wood on Fire Insurance, p. 448.
There is' no pretense here that the assured complied with this condition in his policy. Though his saloon was closed on Sundays, yet he says that the books were kept under the counter when not in use, and were not placed in the safe oftener than once a mouth. In other words, he neither kept his books in a safe at night, nor during those days on which his saloon was closed.
The books were posted by the bookkeeper each night after the close of the business day. They were thus posted on the night of the fire. After that, instead of placing them in a safe, they were put under the counter. We see no valid reason why, after the books were posted, they could not have been kept in the safe during the remainder of the night; at least that book into which the items for each day had been copied might have been thus kept.
Construing the policy in reference to the necessities of the business, we think there is nothing in it that would prevent the night clerk from having access to the books in the event a customer should offer to settle his account, or if for any other reason they were actually needed during the night. The necessity for consulting the books during the night would have been much lessened had the appellee kept his saloon business separate from that of his hotel. He obligated himself to keep books showing a complete record of his saloon business, and to keep them in a safe at night. It was his own fault that he kept this record in the same books in which the business of the hotel was recorded ; and to show that it would have been inconvenient to open his safe whenever a guest wished to pay his bill is no excuse for a failure to comply with his contract.
However inconvenient it may have been, he had expressly agreed that the saloon books should be kept in a fireproof safe at night, or in some place secure from a fire that might destroy the house where the insured goods were kept, and he should have complied with his contract. He failed to do so, and as a result of that failure the books were destroyed .by the fire that burned the house. For this reason the judgment against the appellant company cannot be sustained. It is therefore reversed, and the cause remanded for a new trial. | [
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Wood, J.,
(after stating the facts). The first question is, did the court have jurisdiction, and was the question of jurisdiction properly raised ? The majority of the court is of the opinion that the allegation in the complaint that the appellee was damaged by the alleged breach of contract in the sum of two hundred dollars was a firima facie showing of jurisdiction, and that, in the absence of any special plea to the want of jurisdiction, or any charge in the answer that said allegation of the complaint was illusive, and made merely for the purpose of giving jurisdiction in fraud of the constitutional jurisdiction, the court was correct in not dismissing the cause for the want of jurisdiction. Heilman v. Martin, 2 Ark. 158; Dillard v. Noel, id. 449; Watkins v. Brown, 5 id. 197. I do not, however, concur in this view, under the allegations of the complaint. See authorities in note.
2. The court erred in instructing the jury that appellee’s measure of damages in case of recovery was thirty-five dollars. Even if the proof sustained the finding of the jury that the contract was for a scholarship which embraced the whole course in bookkeeping, and even if it justified the finding .that a scholarship gave to its owner the privilege of returning, ad libitum et in invitum, to finish the course, still the contract, in that view, had been already partly performed by the appellant, in furnishing to appellee instruction in the whole course of bookkeeping except banking, and in furnishing him books and stationery. The appellee had already received the larger part of what his contract called for. Then, what was the proper measure of its breach? Clearly, the difference between what he had paid and what he would have had to pay to have the contract fulfilled as he understood it, i. e., the difference between thirty-five and fifty dollars. According to the undisputed proof, when appellee returned to the college in the spring of 1893, and asked to be permitted to finish the course, by paying fifteen dollars he could have received all that he asked for, and all that he says he thought he was getting under the contract. This is his measure of damages, if he is damaged at all; for, while he alleged damages in the sum of two hundred dollars, there was no proof to show any special damages, and none were asked on the trial. But there is nothing in this record to show that appellee wTas damaged at all. We have been unable to discover the proof that the contract was really made as the appellee says he “thought” it was. Contracts cannot be established by suppositions. The appellee does not sustain the allegation of his complaint that, at the time the contract was made, “there was an express agreement that he should have the privilege of re-entering said college at any time after the expiration of three months, and completing the course of bookkeeping without additional expense.” On the contrary, he shows that he and appellant had no conversation about the scholarship, and the positive proof on behalf of appellant is that he never sold appellee a scholarship, and never had an agreement with him “that he might return and complete this course at any time.” It was in evi dence that the appellant said “his regular price for scholarship in bookkeeping was forty dollars for the course, but he offered the term for thirty-five dollars, including books and stationery.” If it could be inferred from this that appellee purchased a scholarship, or that “term” and “scholarship,” as used here, meant the same thing, still, there is no proof that a scholarship or term conferred upon its holder the right to come and go at will. On the contrary, it appears that the “average time” for a bookkeeping course was sixteen weeks, and the positive proof of the appellant was that “a scholarship did not permit any student to go away and return at his will.” There was evidence that “the life scholarship” gave the privilege of attending “until he mastered his chosen department,” but not that he could come and go just as it suited him. It conferred upon the owner “the privilege of returning and reviewing at any time,” but not to complete an unfinished course at any time. The appellee sues for a breach of contract. His proof should not have come short of showing every essential element to constitute the breach. It should have shown both the terms of the contract and the manner of its breach. The burden was upon him on all these points, and he failed to meet it with evidence which is legally sufficient.
The cause is reversed, and remanded for a new trial.
Am. & E. Enc. Eaw, p. 309, note 1; Berry v. Linton, 1 Ark. 252; Fisher v. Hall, id. 275; Wilson v. Mason, 3 id. 494; Crabtree v. Moore, 7 id. 74; Collins v. Woodruff, 9 id. ^66. | [
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Bunn, C. J.
Appellant company insured three store-houses in the town of Searcy, belonging to the appellee. The policy was written in the usual form, and, among other things, contained the following stipulation, to-wit: “This company shall not be liable, by virtue of this policy, or any renewal thereof, until the premium therefor be actually paid ; nor for any loss by theft at or after a fire, of which the burden of proof shall be on the assured; nor for money or bullion, bills, notes, accounts, deeds, evidences of debt, or securities of property of any kind; nor for any loss or damage by fire which may happen by means of or during an invasion, insurrection, riot, civil commotion, or military or usurped power; nor for any loss in or on buildings unprovided with good and substantial stone or brick chimneys, nor in consequence of any neglect or deviation from the law or regulation of police, where such exists; nor by lightning unless specifically mentioned ; nor for any loss caused by the bursting of a boiler, or by explosion from any cause, unless fire ensues, and then only for the loss or damage by fire. * *****.’’ The latter part, referring to loss by explosion and its consequences, is the only part of the stipulation necessary to be considered here.
The plaintiff introduced the policy as the contract under which he claimed, and the proof of his damages is substantially as follows : On a night in November, 1892, while this policy was in full force, one of the buildings insured therein was damaged, the door-sill being broken and shattered, and smoked and discolored, as if by burnt gunpowder, and the windows to some extent damaged, as we infer. One witness testified that things seemed torn up generally, but, giving no particulars, it is impossible to know what he meant. Others state the damage to be as stated above. From the testimony of all of them, we gather that the accident, if such it might be called, was produced by some person setting off a fuse connected with dynamite or other explosive on the sidewalk in front of the building. The claim was for $100, and judgment was accordingly against the company, and it excepted and appealed.
There are two grounds presented in the testimony and the argument upon which the claim of recovery is based, — the one that the injury to the building was caused by fire following the explosion; and the other that it was caused by fire, indirectly at least, in this way, that while it is true it was the direct result of the explosion, yet, as the explosion itself must have been caused by fire, in the shape of a lighted match, or the like, the injury must therefore be attributed to fire. There are two-lines of decisions on the subject of loss by fire which is the result of explosion, under stipulations such as the one contained in this policy, and they seem to be somewhat irreconcilable.
Thus in Com. Ins. Co. v. Robinson, 64 Ill. 265, where the policy provided that the company should not be liable for any loss or damage caused by the explosion of gunpowder, camphine or any explosive substance, or explosion of any kind, it was held that, “by a proper construction of the latter clause, the company was not thereby exempted from liability for losses by fire caused by explosion, but only [exempted] from liability for losses caused by the explosion.” That is to say, the company is exempt from liability only when the explosion itself is shown to be the proximate cause of the damage, and not the remote cause, as when the loss is by fire, which itself was caused by the explosion.
On the other hand, in United Life & Fire Ins. Co. v. Foote, 22 Ohio St. 340, where the policy excepted any risk by explosion, the court said : “In an action upon the policy, it appeared that an explosive mixture of whisky, vapor and atmosphere had come in contact with the flame of a gas jet, from which it ignited, and immediately exploded, whereby a fire was set in motion, which destroyed the injured property. Held, that in such case it cannot be said that the destruction was caused by a fire, within the meaning of the policy, but, on the contrary, that the loss was by fire occasioned by an explosion.” And, continuing, the court said: “In construing such policies, wherever the exception embraces any loss or damage occasioned by or resulting firom any explosion whatever, the exemption must be taken to embrace all loss or damage occasioned by any fire of which an explosion was the efficient cause.”
There is an apparent conflict between the two, or, if not so, the distinguishing features of the facts causing the difference are too shadowy to be appreciated by the ordinary mind, and therefore of little use practically. But these cases are cited more to show the run of decisions on the subject than to conclude the matter in hand ; for we think that the stipulations in the exemption clause of the policy under consideration make it plain that if the loss was directly caused by fire, the company is liable, although the fire niay have been the mere result of the explosion, for the language is plainly to that effect. But the controversy here in this respect goes off on a question of fact only, for this consequent fire does not appear to have been a fire at all, except such as is confined to the ignition of gunpowder, — a mere flash, that leaves only discoloration, and can in no sense be denominated the destructive force capable of doing damage to any building. The damage does not appear to have been done by the slower process of fire, but rather by the undue exertion of force such as is the undue accompaniment of an explosion.
The contention that fire, in the shape of a lighted match, brought in contact with the explosive, was the cause of the injury, is equally without foundation, in the light of reason and of the authorities. In such case the fire may be the first cause in the train of causes, but that might receive attention among some philosophers, and in some departments of thought, but the law is more practical, and for that reason attributes injuries to proximate, and not to remote, causes.
To illustrate the trend of the authorities on this subject, we cite one or two. In Heuer v. National Ins. Co. 33 N. E. Rep. 411, the court said (quoting from the syllabus): “Where an insurance policy provides that the insurer shall not be liable for loss caused by explosion of any kind, unless fire ensues, and then for the loss or damage by fire only [just as in this case stipulated], no liability exists for damages done by an explosion produced by the ignition of a match in a room filled with illuminating gas, since the explosion of the gas, and not the lighting of the match, is the proximate cause of the loss.” In the Transatlantic Ins. Co. v. Dorsey, 56 Md. 70, the court said : “A lighted match coming in contact with a keg of powder would certainly produce an explosion, and, as the explosion would be produced by fire, all the injury caused thereby might well be said to be directly caused by fire, or be the result thereof [exactly appellee’s contention here], and yet the burning match could no more be said to be the fire insured against, than the burning lamp or gas jet in the cases to which we have referred.” This, we think, is sufficient to show the trend of the authorities, and they seem to be in accord with the better reason on the subject also.
The judgment of the court below is therefore reversed, and judgment here for defendant.
Battle, J., did not participate in the consideration of this cause. | [
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Riddick, J.,
(after stating the facts.) Under our statute a county examiner has- power to revoke the license of a teacher for immorality, incompetency, and for “other adequate causes.” That portion of the statute defining the powers of such examiner, material for us to consider, is as follows : ‘ ‘He may cite to re-examination any person holding a license and under contract to teach any free school in his county ; and, on being satisfied, by re-examination or by other means, that such person does not sustain a good moral character, or that he has not sufficient learning and ability to render him a competent teacher, he may, for these and other adequate causes, revoke the license of such person.”
When, under this statute, a teacher has been cited to appear and answer charges preferred against him, and, when, after a fair investigation, the examiner honestly concludes that the teacher has been guilty of such conduct as, under the statute, justifies a revocation of his license, we agree with counsel for appellant that he is not liable for damages, whether his decision be correct or not. He must follow the statute from which he receives his authority, but whether the evidence is sufficient to make out a proper case under the statute, is for him to determine. The law reposes this discretion in him, and will protect him when he acts honestly and in the faithful attempt to discharge his duties. To render him liable, it must be shown, not only that he acted erroneously, but also maliciously. Were the law otherwise, it would be hazardous to undertake to discharge the duties of such au office, for an erroneous decision, however honestly made, would expose the officer to an action for damages.
Judge Appleton, of the Supreme Court of Maine, discussing this question in a case where the members of a school committee were sued for wrongfully expelling a student from a public school, said: “ The general principle is established by an almost uniform course of decision that a public officer, when acting in good faith, is never to be held liable for an erroneous judgment in á matter submitted to his determination. All he undertakes to do is to discharge his duty to the best of his ability and with integrity. That he may never err in his judgment, or that he may never decide differently from what some other person may think would be just, is no part of his official undertaking.” Donahoe v. Richards, 38 Me. 392. See also the following authorities : Chamberlain v. Clayton, 56 Iowa, 331; S. C. 41 Am. Rep. 101; Burton v. Fulton, 49 Pa. St. 154; Gregory v. Small, 39 Ohio St. 346; Elmore v. Overton, 104 Ind. 552; Fausler v. Parsons, 20 Am. Rep. 431; Pike v. Megoun, 44 Mo. 491; Kendall v. Stokes, 3 How. (U. S.) 98; Cooley on Torts, (2 ed.) 479-483; Mechem, Public Officers, secs. 638 and 639; 19 Am. & Rng. Rnc. Law. 486-489 ; Bishop, Non-Contract Law, sec. 785.
But the officer must act within his jurisdiction. Before he can claim the protection of the law he must do that which the law directs that he shall do before exercising his discretion.
A fair construction of the statute under consideration compels the conclusion that the examiner, before revoking the license of a teacher, must cite or summon him for examination upon the charges preferred against him. This citation is for the purpose of notifying the teacher of the charges made against him, in order that he may have an opportunity to disprove them, or to render any reasonable excuse in justification of his conduct. This was not done in this case. The license was revoked without notice to the teacher, and before he was given an opportunity to defend or excuse his conduct. The giving of this notice was not a matter left to the discretion of the examiner; for, until it .was given, he had no power to pass upon the conduct of the teacher. As he undertook to do this, — to pass judgment and revoke the license without notice, — he acted in violation of the statute, and without authority, and he is liable for the consequences of his acts. Fausler v. Parsons, 6 W. Va. 486, S. C. 20 Am. Rep. 431; 2 Cooley, Torts, 486..
Some days after the order revoking ,the license had been made, appellee came forward, and requested the appellant to set the order aside, which appellant refused to do. It is now said that this action of appellee was a waiver of notice, but a majority of the court hold that this is not so, for two reasons : First, all reference to this application was, upon motion of the appellant himself, stricken from the complaint; second, the application to set aside could not make valid a previous void order. Had the order revoking the license been set aside at request of appellee, and the matter heard anew, a subsequent decision or order would not have been void for want of notice; but this was not done. Appellant refused to vacate or modify his order revoking, the license in any respect, and his liability for damages must be tested by his authority to make that order. The invalidity of that order is not in anyway affected or cured by the ineffectual attempt to have it set aside. Works, Courts and their Jurisdiction, p. 105; Mills v. State, 10 Ind. 114; Briggs v. Sneghan, 45 Ind. 14.
Our conclusion is that the judgment of the circuit ■court must be affirmed, without regard to whether the •court erred in its instructions or not; and it is so ordered. | [
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JOHNSON, J.
This was an action of trespass on the case for slander, brought by [William] Patterson against [John] Hill. On the trial in the court below, Patterson obtained a verdict against Hill for one cent damages; upon which the court rendered judgment in favor of Patterson for the sum of one cent for his damages, together with his costs in and about the suit in that behalf expended. The only ground relied upon in the assignment of error is, that the court gave judgment in favor of the plaintiff below for all the costs by him expended about his suit in that behalf, when, according to the law, he was entitled to judgment for two thirds of those costs only. The forty-eighth section of the act regulating judicial proceedings (Geyer, Dig. 200) provides, that “if in any action of trespass on the case for slander. or action of trespass vi et armis, that may hereafter be instituted in any court of record within this territory, the plaintiff shall recover less than ten dollars, such plaintiff shall be allowed to recover two thirds of the costs given by law in such suit, and no more.” In accordance with the above provision, the judgment should have been rendered for two thirds of the costs of the suit, and having been given for all the costs, is consequently erroneous, and must be reversed. Judgment reversed. | [
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OPINION OP THE COURT.. Daniel Plott recovered a judgment against William Harris, before a justice of the peace, for the sum of sixty-eight dollars and twelve cents debt, and one dollar and twelve cents costs, from which judgment Harris appealed to uie court below, and entered into a bond with Arch Hodge, security, conditioned in substance that Harris should prosecute his appeal, and if Plott should recover more than the amount of the judgment of the justice, that said Harris, defendant, should pay the amount of such judgment and costs of suit. The court below rendered a judgment against Harris for sixty-six dollars and twelve cents debt, and seven dollars and thirty-seven cents * damages, but' no judgment was taken against Hodge as security. Upon this judgment, execution was issued against Harris, and at the same time a scire facias was sued out against Harris and Hodge to show cause why execution should not issue against them on the above-mentioned bond, and a judgment was rendered by the court below against Hodge for the above debt, and four dollars and ninety-five cents damages, with costs, from which Hodge appealed to this court. We are of opinion that the scire facias was improvidently issued as to Hodge, inasmuch as there was no judgment against him whereon it could rest, as by the statute there must have been, in order to entitle the plaintiff to execution. The law is, that in “all cases of appeals or certiorari from justices of the peace, by virtue of existing laws on those subjects, if the judgment of the justice be affirmed, or judgment given on a trial upon the merits de novo in the circuit court, judgments shall be given and execution issue, not only against the original defendant or défendants in the suit before such justice, but also against his or their security or securities in the appeal bond or bonds to prosecute such certiorari.” Acts 1S18, p. 27. Now, although the law is that judgment shall be entered against the •security as well as the principal, yet it is plain that this provision being for the benefit of the plaintiff, he may waive it. and may make his election and take judgment •against the principal only. .This was done in this case, and afterwards an execution •could not be obtained against the security in ■a summary manner by scire facias. It is a different suit and between different parties, •and does not come within the purview of the •statute. Besides, if there had been a joint judgment in the first instance, still the security would not be bound to pay until it legally appeared that the principal was unable and could not pay, and nothing of this hind has been shown. Reversed. | [
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PEE CUKIAM.
■ The judgment in this case being, rendered for fifty dollars more than the amount claimed in the declaration, is manifestly erroneous, and must be reversed; it being well established, that a greater amount cannot be given than claimed in the declaration. 1 Chit. Pl. 372; Yel. 45; 10 Coke, 117; 3 Com. Dig. tit. “Damages,” E. 3. Eeversed. | [
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Wood, J.,
(after stating the facts). Appellant contends :
First. That the statutes did not empower the railroad commission to relocate stations.
The statute provides: ‘ ‘ Section 1. That the Railroad Commission of Arkansas be and the same is hereby authorized, empowered and required to hear and consider all petitions for train service, depots, stations, spurs, sidetracks, platforms and the establishment, enlargement, equipment and discontinuance of the same along and upon the right-of-way of any railroad in this State; provided, said' petition shall be signed by at least fifteen bona fide citizens residing in the territory sought to be affected by said petitioners.
‘ ‘ Sec. 2. The said Board of Railroad Commissioners shall, within thirty days after the filing of said petition, proceed to make a personal inspection of the conditions complained of and investigate the object sought to be accomplished by said petitioners, and shall have the right to summon and swear witnesses, which' summons shall be served by any sheriff, constable or deputy having legal jurisdiction; whereupon, the said Board of Railroad Commissioners shall determine the amount, degree and character of construction, equipment, changes, enlargements •of stations and depots which should be supplied by such railroad company, its lessee, or operator, and shall have the power and authority to require a reasonable train service for each and every such railroad station and depot within the State of Arkansas, and their finding shall be binding upon all such railroads within the State of Arkansas.” Act 149, p. 356, Acts 1907.
The power conferred upon the commission by the above statute to hear and consider petitions for “depots, stations, spurs, sidetracks,” etc., and “to determine the amount, degree and character of construction, equipment, changes, enlargement of stations and depots,” is sufficiently comprehensive to enable the commission to establish a depot or station in the first place, or to change the location of depots that have been formerly established. The act, in express terms, gives the commission power to hear and consider petitions for the “discontinuance” of depots, stations, spurs, etc., “as well as for their establishment. ’ ’
While the word “relocate” is hot used, yet the terms •employed in the act are broad enough to include the relocation of a depot or station. A discontinuance of a depot or station at one location and the establishment of it at another'is but a relocation. Therefore, the power to “discontinue” and to make “changes” of stations and depots necessarily includes the power to relocate.
Second. Under the statute, a petition for the establishment of depots, stations, etc., or the discontinuance of the same at one point and a relocation and establishment thereof at another, is necessary to give the commission jurisdiction of the subject-matter. But, while a petition “signed by at least fifteen bona fide citizens residing in the territory sought to be affected by said petition” is essential to give the commission jurisdiction, the commission, in the matter of locating or establishing a depot or station, is not required to order the same built or established upon the exact spot designated in the petition. The statute does not require that the petition shall designate the precise point where the depot shall be established, and if the petitioners do define the place for the location of the depot, the commission is not bound to establish the same upon the exact spot and according to the limits set forth in the. petition. The commission is only required to consider “the territory sought to be affected,” and, of course, would be precluded from establishing a depot beyond the territory sought to be affected. But, as we have stated, there is nothing in the act requiring the exact location to be defined, nor circumscribing the authority of the commission to those precise limits where they have been set forth in the petition. A petition emanating from at least fifteen bona fide citizens residing in the territory sought to be affected, setting forth that they desire the establishment of a depot or station, or a discontinuance thereof at one point and a relocation of same along and upon the right-of-way of any railway in this State is sufficient to give the commission jurisdiction-to act in the premises, whether the exact point for the location or establishment, or relocation, of the depot or station is precisely designated and defined or not. Here “the territory sought to be affected” was the city of Benton, 'and the petition was signed by more than the requisite number of bona fide citizens of that territory. This was such a petition as the statute contemplates, and it gives the commission jurisdiction of the subject-matter, and it was then within the power of the commission to discontinue the old station and establish the new depot along the line of appellant’s railroad at any point “within the territory to be affected,” which was found to be most conducive to the public welfare, taking into consideration, of course, the interests of the .railway company, and also the convenience of the general public that was to be subserved by the granting of the petition.
It can not be said that because the commission did not direct the establishment of the new depot at the exact point described in the petition, that it acted without a petition, and therefore had no authority to make the order. There was a petition signed by more than the prescribed number of bona fide citizens, and it was requested at the hearing that if the commission did not see fit to locate the new depot at the site designated in the petition, that it be placed as near that site as practical.
Every requirement of the law was met in the matter of the petition.
Third. Appellant contends that the order under review is unreasonable and invalid because taking its property without due process of law. Appellant, in this connection, says: “The effect of the order is to destroy the value of the property owned by it and to compel it to acquire and improve other property at great and unnecessary expense without any proportionately compensative advantage to the public.”
Appellant was given an opportunity to be'heard before the commission, and was heard. The commission had before it the testimony adduced by the appellant showing the difference between the cost of rebuilding the new depot and the necessary houses and the arrangement of the tracks at the place designated by the commission, and the cost of rebuilding and rearranging the tracks, freight houses, etc, at the place of the old station. These were questions of fact addressed to the commission, and it could serve no useful purpose to set out in detail and discuss the evidence bearing upon these issues. The difference in the expense of establishing and maintaining a station at the point designated by the commission is greater, as shown by the testimony of witnesses for appellant, than the expense of building a new depot and maintaining the station at its present location, but it can not be said that this difference is so great as to amount to a confiscation of appellant’s property. The difference in the cost of the establishment and maintenance between the two locations is not so great as to make the order of the commission unreasonable and arbitrary. This was a matter addressed primarily to the commission* and after a careful consideration of the evidence bearing upon this issue, we are of the opinion that the order of the commission was not arbitrary and unreasonable.
However much we may differ from the finding of the commission, upon the evidence in this record, as to the wisdom and expediency of its order, on account of the increased cost to the appellant in making the necessary expenditures to comply with its order, nevertheless a fair consideration of all the testimony adduced on this issue does not convince us that the order was arbitrary and unreasonable. The order of the commission, under the act, and the facts adduced by this record, was not a taking of property without due process of law. St. Louis, I. M. & S. Ry. Co. v. State, 99 Ark. 1.
Fourth. It is next contended that the order was unreasonable in requiring the appellant to locate its depot at a place where its main line will be upon a curve and its branch line upon a grade.
In Louisiana & Ark. Ry. Co. v. State, 85 Ark. 12, we said: “When the Legislature passes a special act requiring the doing of a certain thing, such as the establishment and maintenance of a station at a given place by a railroad corporation, there may be a judicial question presented whether or not a real necessity exists for the doing of the thing in order to reasonably serve the public convenience. It is a question primarily for legislative determination, and that determination should not be disturbed by the court unless the power has been exercised arbitrarily and without reason. In other words, the legislative determination should be, and is conclusive, unless it is arbitrary and without any foundation in reason or justice. There may be cases where the power is exercised so arbitrarily' and unreasonably that the court should declare, as a matter of law, that the Legislature exceeded its power, and that the legislative determination should be disregarded. ’ ’
We further said: “The utmost force must be given to the legislative determination of the necessity for a station and the reasonableness of requiring the company to erect and ‘maintain one. ’ ’
And, in St. Louis S. W. Ry. Co. v. State, 97 Ark. 473, we held (quoting syllabus) : “The Legislature has primarily the right to determine whether the public necessity and convenience require the establishment of a railway depot at a given point, and the courts will not disturb their determination unless it is clearly shown that such requirement is unreasonable and arbitrary.”
In St. Louis, I. M. & S. Ry. Co. v. State, supra, the court had under consideration the power of the railroad commission, under this statute, to order the construction of a. spur track, and we said: ‘ ‘ The Legislature had the right to require the construction of this spur track, and, having it, could delegate the power to the railroad commission, as it has done by said act of 1907. If it had made the requirement directly by statute instead of conferring the power upon the railroad commission to make it, its action would have been subject to judicial review only as being so arbitrary and unreasonable as to cause it to be void for want of power. The order of the railroad commission, made under the authority delegated to it, is subject to legal review for the same cause.”
These principles doubtless were in the mind of the chancery court when passing upon the facts on the issue as to whether or not the order of the commission was so arbitrary and unreasonable as to render the same void. The court was correct in its conclusion. It can not be said that the order of the commission was ‘‘ arbitrary and without any foundation in reason and justice.”
Appellant contends that the order was unreasonable because the testimony adduced by it showed that the location of the station under the order of the commission was on a curve on the main line; that being on a curve there was difficulty in starting trains, in coupling the cars and in seeing signals, all of which rendered the operation of trains far more difficult and dangerous than it would be on a straight track, like the one at the old statiun or place at which the appellant proposed to erect its new depot building.
The undisputed testimony showed that the. station ■under the order of the commission would be located on a curve on the track of appellant’s main line that was one and one-half degrees. There was much testimony on behalf of appellant tending to show that the difficulty, as well as the hazards, of operating the trains on this curve would be greatly increased; that if the station was located according to the order of the commission, on the branch line the engine would stand upon a one per cent grade, which would make it very difficult to handle long, heavy trains, whereas, at the old station there was a straight track on the main line and the grade of the branch line was of sufficient distance to permit the proper handling of trains. The testimony also tended to show that if the appellant undertook to straighten the curvature at the station under the order of the commission, and to reduce the grade on the branch line so as to enable it to properly handle the trains it would cost about $55,000. It was shown that a larger number of passenger trains passed through Benton than any other town in the State except Little Rock. This fact was because of the numerous passengers to Hot Springs.
It was shown that an effort was once before made before the railroad commission for the removal of the depot from its present location, which was unsuccessful, and likewise an unsuccessful effort was made to have the Legislature pass a special act requiring the removal of the depot from its present location. On the other hand, there was testimony tending to show that the .site where the station is now located, and the site where it would be located under the order of the commission were so nearly identical that either would make a good location; that the curve at the station of the Bock Island railroad at Benton was greater than would be the curve at the station under the commission’s order; that a curve is objectionable if sharp, that is, if over four degrees; that while it is preferable always to have the stations located on a straight track, nevertheless appellant had quite a number of stations located on curves of one and one-half degrees.
It was shown that the appellant owned sufficient land between the two tracks to make a straight track south for five or six hundred feet; that it had room to straighten its tracks without getting off its right-of-way; that from the old station it had 522 feet of straight track; that it had plenty of room to carry the straight track 522 feet south of the new location.
It was shown that the cost of erecting the depot building at the station ordered by the commission and at the old station where the depot building had been burned would be approximately the same; and there was evidence tending to show that the convenience to the people of Benton as a whole would be far greater at the station ordered by the commission than at the old station, and that the danger and difficulty in operating trains at the station as ordered by the commission would be no greater than at the old location.
Without going into further detail concerning the facts, it suffices to say that it was shown that a majority of the commission visited the location, heard the testimony pro and con, and, after making a thorough investigation and giving the parties full opportunity to be heard, made the order now challenged by the appellant.
Under the principles already announced by this court as to the power delegated by the Legislature to the commission, we are of the opinion that the court was correct in holding that the order of the commission, under the facts adduced, was not arbitrary and unreasonable.
The decree, therefore, dismissing the appellant’s complaint for want of equity, is in all things affirmed. | [
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Ed. F. McFaddin, Associate Justice.
The Commissioner of Revenues of Arkansas charged that C. E. Tolliver owed the State a sizeable sum for gross receipts tax on proceeds received from coin-operated music machines. After exhausting administrative remedies, Tolliver filed this proceeding in the Poinsett Chancery Court to cancel the Certificate of Indebtedness filed against him by the Commissioner of Revenues in Poinsett County. Yenue and jurisdiction are not questioned. See Fish v. McLeod, 206 Ark. 142, 174 S. W. 2d 236. The Chancellor delivered a written opinion which we copy in extenso because he reached the correct conclusion:
“MEMORANDUM OPINION
“STATEMENT
“This is an action by the plaintiff to cancel and hold invalid a ‘Certificate of Indebtedness’ on record in the office of the Circuit Clerk in Poinsett County. The certificate was filed by the Commissioner of Revenues deemed to be under the authority of the Arkansas Gross Receipts Act of 1941 and amendments thereto. The plaintiff also seeks to enjoin the Commissioner from filing any future claims based on the Act as it now stands. The plaintiff claims the Act does not apply to his enterprise.
“FACTS
‘ ‘ The plaintiff owns a number of automatic mechanical music machines which are placed in various establishments of others all located in Poinsett County, Arkansas. The machines are activated by alleged lovers of music by placing coins in slots. The coin is then forced along a track within this slot and in turn throws an electrical switch giving life to the machine. The machine also has an electronic brain, which if properly activated by our alleged music lover, will attempt to emit sounds shown by an index of selections.
“According to the stipulated facts, between a period dating from 1 July 1957 and ending 30 June 1960, the plaintiff’s gross receipts from his machines totaled to a snm of $84,514.51, and that.during this period no sales tax was remitted under the Act in question. The Commissioner then caused the certificate to he filed alleging therein that the sum of $2,535.44 was due for sales tax and a penalty of ten per cent amounting to $243.54. Thereafter plaintiff exhausted his administrative rights and now seeks the aid of the Courts.
“TEE ACTS
‘‘ The Acts are compiled as Sections 84-1901 through 84-1929 Arkansas Statutes volume 7-B. Section 84-1903 reads as follows:
“ ‘THREE PER CENT TAX LEVIED —There is hereby levied an excise tax of three per centum (3%) upon the gross proceeds or gross receipts derived from all sales to any person. . . .
“ ‘(e) The sale of tickets or admissions to places of amusement, to athletic, entertainment, recreational events,, or fees for the privilege of having access to or the use of amusement, entertainment, athletic or recreational facilities. . . .’
“In Section 84-1902 it defines the word ‘sale’ as follows:
“ ‘(C) . . . The term “Sale” shall include also the sale, giving away, exchanging or other disposition of admission, dues or fees to clubs, to places of amusement, recreational, or athletic events, or for the privilege of having access to the use of amusement, recreational, athletic or entertainment facilities.”
“CONSIDERATION OF THE ISSUES
“For the issues to he resolved, the court must determine the implications raised by the above two sections.
“Q. Do they cover the proceeds derived from Automatic Mechanical Music Machines?
“To do this, the court will first analyze the section which levies the tax. What does it levy the tax on?
“1. The sale of tickets and admissions to,
a. Places of amusement.
b. To athletic events.
c. To places of entertainment.
d. To recreational events.
“2. It also levies on fees for the privilege of one having access to or the use of,
a. Amusement facilities.
b. Entertainment facilities.
c. Athletic facilities.
d. Recreational facilities.
“Note: (this section does not make a levy on ‘Dues’ unless they are free or complimentary)
“3. The defining section as to what shall consist a ‘sale’ are admissions, dues and fees,
a. To clubs.
b. To places of amusement.
c. To recreational events.
d. To athletic events.
Note: (this part omits anything pertaining to ‘entertainment’)
“This section also defines a ‘sale’ as being any admission, dues or fees for the privilege of access to or use of,
A. Amusement facilities.
B. Entertainment facilities.
C. Recreational facilities.
D. Athletic facilities.
“The court feels that the only possible part of this Act that could be directed toward the issues in the case at bar is as follows:
“ ‘. . . fees for the privilege of having access to or the use of amusement, entertainment . . . facilities . . .’
(84-1903 Arkansas Statutes)
“In Webster’s New Collegiate Dictionary, it defines the word ‘Privilege’ as:
“1. A right or immunity granted as a peculiar advantage or favor.
2. A personal right, in derogation of common rights.
3. A prerogative (a right to exercise a power to the exclusion of others).,
“It defines a ‘facility’ as:
“1. A thing that promotes the ease of any action, operation, or course of conduct, (see also 35 CJS pg. 488)'
2. Facilities can also be animate beings, such as persons, people and groups thereof. It is not restricted to inanimate things, (see 35 CJS 489)
‘ ‘ The dictionary defines the word ‘ Access ’ as:
“1. Approach, admittance, admission.
“It defines the word ‘Use’ as:
“1. Act of employing anything or state or being employed.
“The words ‘entertainment and amusement’ are synonymous, meaning:
“1. That which engages the attention of agreeably or to occupy pleasurably.
“Beading the Act as a whole the only reasonable conclusion the court can arrive at is this:
“1. When the Act refers' to entertainment and amusement facilities, it is considering a place where admission, dues and fees are paid for one to enter and attend.' Having been granted this privilege the customer may then have access and the use of the facilities therein made available to him.
“In Wiseman v. Arkansas Utilities Co., 191 Ark. 854, 88 S. W. 2d 81, it was said:
“ ‘ It is the general rule that a tax cannot be imposed except by express words indicating that purpose. The intention of the Legislature is to be gathered from a consideration of the entire act, and where there is ambiguity or doubt it must be resolved in favor of the taxpayer and against the taxing power. ’
“It would have been very simple for the act the Legislature compiled to have named the Automatic Music Machine as such, had they intended to include them. They did so in Section 84-2604 Arkansas Statutes as follows:
“ ‘ There is hereby imposed . . . a privilege tax for the operation of coin operated machines and vending machines, including automatic music vending phonographs . . . ’
‘ ‘ If one must be pleasurably and agreeably occupied to be entertained and amused, how will we allow for music which is sad and depressing?
“CONCLUSION
‘ The court finds that no gross receipts tax is levied upon the proceeds from automatic music machines as the act now stands. Therefore, the * Certificate of Indebtedness’ filed by the defendant Commissioner against the plaintiff and his property, in the office of the Circuit Clerk of Poinsett County, Arkansas, is hereby deemed void and shall be expunged from said records; that the defendant Commissioner is hereby enjoined from filing any other certificates or taking any action for the collection of this tax. Costs are adjudged against the defendant Commissioner in his official capacity. Precedent will be prepared to conform herewith.
“19 September 1961
“Gene Bradley
‘ ‘ Chancellor ’ ’
We do not deem it necessary to add anything to the Chancellor’s opinion concerning the application of Act No. 386 of 1941, as his reasoning is clear and sound. However, the appellant also relies most strongly on Act No. 120 of 1959, which appellant claims to be a Legislative recognition that the Cross Receipts Act applies to coin-operated machines like those in this case; and we now consider said Act No. 120 with relation to the facts in the case at bar. The Act No. 120 was captioned “AN ACT to License and Regulate The Operation of Amusement Carnes, The Levying of a Tax Therefor, And For Other Purposes.” Section 4 of the Act No. 120 levied an annual privilege tax of $250.00. Section 6 required that any licensee under the Act must, within ten days from the purchase or lease of such amusement device, present evidence to the Revenue Commissioner that the sales tax has been paid on the machine leased or purchased. Section 7 of Act No. 120 is the section strongly relied on by the Commissioner. That Section reads:
“In all cases where a licensee hereunder leases amusement devices to others, it shall be the duty of the licensee to keep records of the amount of rent received by the licensee and the amount retained by the lessee and to furnish carbon copies of such records to the lessee. It is the duty and obligation of the~ licensee to ascertain the amount of sales tax due on the receipts of the machine and to withhold the amount of such tax from such receipts and to remit same to the Arkansas Revenue Department. The amount of such sales tax shall not be taken into consideration in determining the rent due the licensee. All records required to be kept by the licensee under the provisions of this Act shall be made available to the Arkansas Revenue Commissioner within a reasonable time after request or the license of the offending licensee may be revoked as provided herein.” (Emphasis our own])
We have italicized the portion of the Act upon which the appellant most strongly relies. We construed this Act in the recent case of Brown v. Cheney, 233 Ark. 920, 350 S. W. 2d 184. The said Act No. 120 levied a privilege tax on coin-operated machines like the ones in the case at bar. But the said Act No. 120 does not in Section 7 above, or in any other section, levy a gross receipts tax on the money received in the operation of the said machines. Taxes are not levied by implication. The only tax levied by Act No. 120 was a privilege tax. The Act does say that the owner or operator of a machine should “ascertain the amount of sales tax due on the receipts of the machine and to withhold the amount of such tax from such receipts and remit same to the Arkansas Revenue Department.” But, by the italicized language (as well as other language in the Act) the Legislature was saying that the operator should perform those tasks if and when there should be a gross receipts or sales tax levied against the money received in the operation of the machine. The Act No. 120 did not levy the sales tax or gross receipts tax or say anywhere that a gross receipts tax or sales tax was levied against the money received from the operation of said machine. The Act No. 120 merely stated what the operator would have to do if and when a gross receipts tax was levied, but such tax has not yet been levied, as shown by the Chancellor’s Opinion. And what the Chancellor quoted from Wiseman v. Arkansas Utilities Co., 191 Ark. 854, 88 S. W. 2d 81, is apropos here:
“It is the general rule that a tax cannot be imposed except by express words indicating that purpose. The intention of the Legislature is to be gathered from a consideration of the entire act, and where there is ambiguity or doubt it must be resolved in favor of the taxpayer, and against the taxing power.”
If the Legislature had desired to levy a gross receipts tax or sales tax against the proceeds received in the operation of these coin-operated music machines, all the Legislature would have had to say was that such gross receipts tax was levied. We find no such language in the Act No. 120.
Affirmed.
Harris, C. J., and Ward & Johnson, JJ., dissent.
It must be borne in mind that the tax sought to be collected by the Commissioner in the case at bar covered the period from July 1, 1957 through June 30, 1960, and the Act No. 120 of 1959 certainly could not retroactively apply in any event to receipts before the effective date of the Act.
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Hart, J.,
(after stating the facts). Counsel for the defendant seeks to uphold the decree on the authority of Hearin v. Union Sawmill Company, 105 Ark. 455; but we do not think that case is an authority for him. There the deed conveyed “all the pine and oak timber ten inches and up.” It was contended by the seller that this did not embrace the old field pine which was on the land. Among the reasons given was, that at the time the timber deed was executed it was not profitable to cut old field pine. We held that the language of the deed aptly included every kind of pine on the land. There the deed did not purport to convey merchantable timber, but purported to convey all the pine and oak timber ten inches and up. Old field pine was covered by this description, and we held that, to allow the seller to show by parol proof that it was not so intended would be to contradict or vary the terms of the deed. There the description referred to the size of physical characteristics of the timber, and to have allowed parol evidence to show to the contrary would have contradicted the terms of the deed. Here the language of the deed is “all the oak timber suitable to make staves 'or stave bolts. ’ ’ The word ‘ ‘ suitable, ’ ’ as defined in the dictionaries, means: ‘‘Fit, proper or adapted.” So that it will be seen that the word referred not only to the physical characteristics of the timber 'but to its fitness for making staves and stave bolts. According to a preponderance of the testimony, it was not thought or understood in that community at the time the timber deed was executed that red oak timber was suitable for making staves and stave bolts. More over, the undisputed testimony shows that the plaintiff and the agent of the defendant who bought the timber for it both understood that red oak timber was not suitable for making staves and stave bolts and that only white oak timber and .its species was suitable for that purpose. The rule is that, where the contract contains-words of latent ambiguity or where technical terms are used or terms which by custom and usage are used in a sense other than the ordinary meaning of the words, oral testimony is admissible to explain the meaning of the terms or words used. Paepcke-Leicht Lumber Company v. Talley, 106 Ark. 400. In that case it was also said that every legal contract is to be interpreted in accordance with the intention of the parties making it; and usage, when it is uniform -and well settled, and is not in contradiction of the expressed terms of the contract, is deemed to form a part of the contract and to enter into the intention of the parties. As we have already seen, the plaintiff and the agent of the defendant who made the contract for it both testified that it was not their intention to include the red oak timber and that it was not considered suitable for making staves and stave bolts in that community at the time the contract was executed. It may be also said that a preponderance of the evidence showed that at the time the contract was executed red-oak timber, according to the custom of the community, was not considered suitable for making staves and -stave bolts and was not used for that purpose.
In addition to this, J. L. Jean, who acted as -agent for th-e defendant in purchasing the timber, testified that subsequent to the execution of the timber deed he purchased the timber from the defendant at the price it had paid for it. In other words, he testified he had an understanding' and -agreement with the Martin Stave Company that he would take the timber off of its hands at the price it had paid for.it. This contract was not in writing, but Jean stated that, pursuant to its terms, he cut the timber, which it was understood was embraced in the contract, and paid the defendant for it. His testimony in this regard is uneontradioted. So it may he said that the undisputed testimony shows that the defendant made a verbal contract for the sale of the timber which it had purchased from the plaintiff and that pursuant to its terms Jean took possession of the timber and paid the purchase money. The facts proved as to the payment' of the purchase money for the timber by Jean and the taking possession of the timber by him met every requirement of our decisions as to the part performance of a parol contract necessary to give Jean the right to specific performance. Arkadelphia Lumber Company v. Thornton, 83 Ark. 403.
Jean says that he did not demand any deed from the Martin Stave Company because he had cut all the timber from the land that he was entitled to under the deed from the plaintiff to the Martin Stave Company. The Martin Stave Company entered upon the land after it had made this contract with Jean and cut the red oak timber from it. It does not make any difference that Jean did not bring suit for 'specific performance as he was entitled to do. He is not making any claim to the red oak timber, and the Martin Stave Company is not entitled to the red oak timber, because, under the undisputed testimony, it had conveyed to Jean all the timber that it had purchased from the plaintiff. Therefore, it had no right to cut the red oak timber and is liable to the plaintiff for it. The undisputed evidence shows that the defendant cut seventy-five and one-half cords of red oak timber and that the value of this red oak was three dollars per cord. The chancellor should have found for the plaintiff, and for the error in not doing so the decree will be reversed, and inasmuch as the cause has been fully developed, a decree will be entered here in favor of the plaintiff for the sum of $226.50. | [
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Carleton Harris, Chief Justice.
This litigation involves the validity of Act 78 of 1961, entitled, “An Act Relating to Prepaid Funeral Expenses; Requiring Registration of Organizations Dealing Therein and Requir-ing the Establishment of Trusts for the Benefit and Protection of Purchasers of Such Contracts.” The provision particularly under attack is Section 5, which reads as follows:
“SECTION 5. After the effective date of this Act, all funds collected under contracts for prepaid funeral benefits, including funds collected under contracts made before the effective date of this Act, shall be placed in a state or national bank, or building and loan association in this State and so deposited not less than thirty days after collection, to be held in a trust fund in this State for the use, benefit and protection of purchasers of such contracts. Any withdrawals from such trust fund shall be accompanied by a certified copy of the death certificate, together with proper affidavits as may be required by the Securities Division of the State Bank Department, before such funds shall be released in fulfillment of the contract. In no event shall more funds be withdrawn from the trust account than are originally placed into the fund under any one contract, other than through the payment of accrued interest thereon.”
Appellant, Reserve Vault Corporation, is engaged in selling fiberglass grave vaults to the general public, under a procedure sometimes referred to as “px’e-need” contracts. Appellant Washington is one of the salesmen for the corporation. The company has been selling these vaults under two contracts, herein referred to as contract “A”, and contract “B”. Prior to the passage of Act 78, approximately one hundred such vaults had been sold at an average price of $195 each. Under an agreement between the corporation and its salesmen, Washington was to receive a commission of 25% of the selling price of each vault sold by him. Practically all of the contracts under which the vaults were sold provided that the selling price would be paid in moxithly payments, and the salesmen were to receive the first 25% of monies paid in. Washington, as salesman for appellant company, made the sale of a vault to Mrs. Leaether A. Bailey on November 10, 1960, for a total consideration of $190, of which. $5 .was paid in cash, and the balance was to be paid in thirty-seven equal monthly installments in the amount of $5 each. This sale was made under contract “A”, pertinent portions of which read as follows:
“The said vault(s) are sold subject to the following conditions which are hereby agreed to by the parties:
The company agrees to deliver the grave vault or vaults purchased under this contract to any place designated by the purchaser within the State of Arkansas. Purchaser or someone acting for purchaser hereby agrees to notify corporation immediately upon death whereby, the corporation will have a minimum of twenty-four hours notice prior to the delivery of the vault. Purchaser agrees to give a minimum of twenty-four hours notice that a vault is required and of the place and time of delivery. Corporation agrees to effectuate delivery within a twenty-four hour period after notice, however, the corporation shall not be liable for delays in delivery due to acts of God or conditions beyond the control of the corporation. Corporation agrees to maintain a separate account which shall be at least 50% of the amount of this contract. This reserve account shall be a restricted fund to assure performance by the corporation of its contract. Investments of this fund shall be made by the Board of Directors of the corporation.”
On March 18, 1961, the company sold a vault to William and Pauline Dailey for the sum of $200.85, of which $5 was paid in cash, and the balance was to be paid in thirty-nine equal monthly installments of $5 each. This sale was made under contract “B”, termed the “lay away plan”, and pertinent portions read as follows:
“The corportion agrees to deliver grave vault or vaults purchased under this contract to any place designated by the purchaser within the State of Arkansas within a period of ten days subsequent to corporation’s receipt of the final installment due under this contract, however, the corporation shall not be liable for delays in delivery due to Acts of God or conditions beyond the control of the corporation.”
Act 78, containing an emergency clause, became effective on February 13,1961, and on March 23, appellants instituted suit in the Pulaski Chancery Court, seeking a declaratory judgment relative to the validity of Act 78. It was alleged that appellants were about to be adversely affected by the provisions of the Act, and that same was in contravention of both the Constitution of the United States, and the Constitution of the State of Arkansas, As an alternative, appellants prayed that if the Act be held constitutional, the Court enter its judgment finding that Act 78 had no application to the contracts herein involved, as being outside the purview of the Act. On trial, the Court held that Act 78 was a constitutional exercise of the police power of the State of Arkansas to regulate a business susceptible to fraudulent practices. The Court further held:
“3. That said Act does not unconstitutionally impair the contracts of plaintiff corporation with the defendant, Leaether Bailey, or the contract for commissions between plaintiff corporation and its salesman, plaintiff A. J. Washington.
4. That the contract noted as Exhibit “A” is within the purview of said Act.
5. That the contract described as Exhibit ‘ ‘ B ” from the testimony and evidence given at the trial is not within the purview of said Act.
6. That said Act is retroactive to include contracts executed prior to its enactment, but it is not the intent of said Act to require the payment into a trust fund of any collection made on the Leaether Bailey contract prior to the effective date of the Act, but does require the payment into a trust fund of all payments collected on said contract since the effective date of the Act, even though said collections be funds previously relegated by contract to the salesman, A. J. Washington, as a commission. ’ ’
Judgment was entered accordingly, and appellants have appealed from that portion holding the Act constitutional, and finding that contract “A” is covered by the Act. The State has not appealed from that portion of the judgment finding that contract “B” is not within the purview of said Act. For reversal, appellants rely upon several points, which we proceed to discuss.
It is first asserted that the contract, here involved, is not controlled by the Act, and is beyond its scope and purview. In presenting this point, appellants first argue that the Act purports only to cover situations wherein delivery (of a vault) is dependent upon death, and, say appellants, the Bailey contract does not require the death of anyone as a condition precedent to delivery. We do not concur with this contention. We think this statement would be apt relative to contract “B”, which on its face, only requires full payment of the purchase price before delivery can be demanded, but it is evident from the language of contract “A”, that delivery is dependent upon a death. Again quoting the pertinent portion:
“Purchaser or someone acting for purchaser hereby agrees to notify corporation immediately upon death whereby, the corporation will have a minimum of twenty-four hours notice prior to the delivery of the vault. Purchaser agees to give a minimum of twenty-four hours notice that a vault is required and of the place and time of delivery.”
We do not agree with appellant that a purchaser under this contract would be entitled to obtain a vault as soon as same was paid for. Appellants likewise argue that Act 78 relates only to contracts which are dependent upon the death of a “contracting party”, and that the contract in question certainly does not require the death of the contracting party. This same contention was made, and rejected, in the case of Falkner v. Memorial Gardens Association, 298 S. W. 2d 934. There, the Court of Civil Appeals of Texas passed upon an Act identical with the Act here in question. Relative to this contention, the Court said:
“Some contracts are doubtless made for the benefit of a third person or persons and are not necessarily dependent on the death of the actual contracting party. However, it is clear that they are made in contemplation of the death of the party benefited.”
Of course, a purchaser might have in mind another member of his family when buying the vault, and it must be likewise considered that certainly, in numerous instances, the vault would be purchased for the benefit of the contracting party. Accordingly, if appellants’ view were correct, the same exact contract would be sometimes within the purview of the Act, and sometimes without the purview of the Act, depending upon whether the contracting party purchased the vault in contemplation of his own death, or in contemplation of the death of some member of his family. Such an interpretation would leave the matter in total confusion, and would open the door to evasive practices. Actually a purchaser probably would not know for whom the vault was being acquired, the answer to that question depending upon which member of the family first died. At any rate, we find no merit in the contention, and hold that delivery of a vault, under contract “A”, is conditioned upon a demand made pursuant to a death.
Appellants contend that the Act is an unwarranted and unlawful exercise of the police power, stating “the attempted regulation of the money received from the sale of personal property, merchandise or services, in the connection of the disposal of a dead human body is not a matter for the exercise of the police power.” It is contended that to require appellant company to place the full purchase price in trust has no relation to the public health, safety, morals, or general welfare, especially in the absence of facts that appellant company is conducting a fraudulent business or is guilty of immoral or improper business practice. Appellants assert that the purchasers are adequately protected because the cor poration agrees, in the contract, to place a portion of the money paid in by each purchaser in a separate account to guarantee peiiormance, i.e., to guarantee delivery of the vault purchased. According to the president of the company, about one-half of the contracts sold provide for 50% of the money to be invested in this separate account, and about one-half provide for 15%. We do not agree with appellants’ contention. The enactment of statutes for the purpose of prevention of fraud is within the police power of the state. Stuart v. Elk Horn Bank & Trust Co., 123 Ark. 285, 185 S. W. 263. While it is true that there is no charge of fraud against the present ownership of the company, allegations, or proof of fraud, has no bearing on determining the constitutionality of the statute. As set out in 16 C. J. S., Constitutional Law, § 198, p. 968:
“In determining the constitutionality of a statute bearing on its face clear indication that it was designed to prevent fraud, the court may not give weight to the fact that fraud was neither charged or proved. ’ ’
We think unquestionably the Legislature, in passing the Act, had in mind the protection of the public; in fact, this is shown by the language appearing in the Emergency Clause. During the taking of the testimony of the president of Reserve Vault Corporation, it was developed that all shares of stock could, at any time, be sold to some presently unknown individual, who would have complete control of the company; it was further shown that the president has the right to withdraw all company funds simply by writing a check. Let it be borne in mind that many of these contracts will not mature for a long number of years, and vast changes in the status of the corporation and its personnel can well take place. In fact, the witness admitted that even a $1,000 claim against the company at .present could not be met with company funds, since the corporation had only $700 in the bank. In the case of Memorial Gardens Association, Inc. v. Smith, 16 Ill. 2d 116, 156 N. E. 2d 587, the Supreme Court of Illinois said:
“Plaintiffs urge that the act constitutes an unwarranted exercise of the police power; and that it is confiscatory of plaintiffs’ business and thereby violates the due process provisions of the State and Federal constitutions. We will first consider this contention. The police power is an attribute of sovereignty inherent in every government. It has been reserved to all the States by the constitution of the United States, (citing cases) While it is not without limitation and may not be exercised arbitrarily, the legislatures of the States have broad discretion in the passage of statutes in its exercise, (citing cases) When the legislature has considered a problem and enacted legislation thereon, the act is presumptively a valid exercise of the power and the burden rests upon the one assailing the statute to show that it is without reasonable basis and entirely arbitrary, (citing cases) The enactment of statutes having for their object the prevention of fraud, deceit, cheating, and imposition is within the police power of a State, (citing cases)
There can be no doubt that the act relates to a proper subject for the exercise of the police power. The public has a vital interest in the proper disposition of the bodies of its deceased members. * * * There is nothing unique in requiring one who contracts for performance in futuro to give security for that performance. Thus, legislation requires contractors in public construction to give performance bonds, and compels insurance companies to maintain certain reserves and deposit security with administrative authorities charged with the supervision of their activities. The use of such bonds is generally accepted, and it is well settled that the insurance business is affected with a public interest and subject to control by the State in the exercise of its police power, (citing cases)
The contracts here involved are analogous to a form of insurance. By payments made during life, the purchasers seek to insure their burial. The net effect is the same as though a life insurance contract were purchased to provide a sufficient sum payable at death to accomplish that result. In the case of insurance, the right of the legislature to require reserves and the deposit of security is unquestioned. The trust fund provisions of the act in question are designed to accomplish the same purpose, that is, to assure the purchasers that the company will be able to complete their contracts when the time for performance arrives. When we consider that contract payments are to be made in a maximum of three years and that the average time until performance of the ‘pre-need’ contracts is almost 29 years, the justice of the legislation becomes evident. Plaintiffs, themselves, have recognized the need of some protection for the purchaser by including in their form of contract certain vague provisions relative to setting aside a trust fund. These illusory provisions furnish purchaser appeal, but fail to provide the protection which the situation warrants. ’ ’
Appellants complain that the Act is confiscatory, rather than regulatory, and actually has the effect of prohibiting the corporation from operating. Appellant corporation states that it cannot operate if it is required to place all monies collected in a trust fund; that this requirement precludes it from using any funds for operational expenses of the business, and likewise prohibits it from paying its salesmen the 25% commission on each sale until some time in the future. Appellant company states that each salesman will have to outlive the purchaser in order to collect his 25% commission. As was pointed out by the Court in the Memorial Gardens case, “It would be most unusual to expect, or require, prospective purchasers to furnish or advance capital funds necessary for the operation of a business.” The argument that the statute is confiscatory, rather than regulatory, was met by that Court as follows:
“Plaintiffs urge, however, that the act is prohibitory rather than regulatory; that, if refused the right to make the unauthorized deductions from the trust fund, they will be unable to remain in business. They state that the immediate expenses, including commissions and general overhead items, make it impossible to deposit in trust the large amounts required by the act: * * * In the long interval between full receipt of the purchase price and contract performance, the opportunities for fraud are great and risk of insolvency, with consequent inability to perform, apparent. The suggestion that actual costs are a minor item and that the legislature should have required a smaller deposit is unimpressive under the circumstances. The main thrust of plaintiffs’ argument is that the regulations of the act will prevent the operation of its business of ‘pre-need’ sales and that they will be compelled to cease business if forced to make sales only at the time of death. However, the act neither restricts plaintiffs’ sales of such property at the time of death, nor prohibits ‘pre-need’ sales. * * *
We do not believe that the present statute operates to prohibit plaintiffs’ legitimate business. It does regulate the manner in which the business may be conducted. Practically, plaintiffs will no longer be able to collect prospective profits in advance, without furnishing an adequate guarantee for performance. However, this does not prohibit the operation of this type of business. A large discretion is necessarily vested in the legislature to determine not only what the interests of the public welfare require, but what measures are necessary to secure such interests, (citing cases) Plaintiffs’ argument amounts to an admission that they will be unable to compete with others who sell the same merchandise and services at the time of actual need. However, the public welfare need not be abrogated to enable an individual to carry on his business in the particular manner in which he has elected to proceed. The analogy which plaintiffs seek to draw between their contracts and retail sales made on the ‘lay away’ plan is fallacious. The ‘lay away’ sale contemplates performance within a relatively short period of time upon payment of the purchase price. Opportunities for fraud are negligible and remedies for nonperformance are readily available.”
Likewise, the Court of Civil Appeals of Texas, in Falkner v. Memorial Gardens Association, supra, was presented with the same argument. Quoting from that Court’s opinion:
Appellees say:
‘The Act is fundamentally unconstitutional because it is confiscatory. It is not intended to be regulatory or give reasonable protection to that part of the public doing business with appellees. It is intended to put appellees out of business because by Section 5 it requires all of the funds paid under the agreement to be placed in a trust fund until delivery without any recognition for the current expenses of salesmen’s commissions, office expenses in keeping records and making collections of installment payments, or developing and maintaining the memorial cemeteries in which the merchandise is placed. ’
This complaint is largely a criticism of the Act. In Glens Falls Ins. Co. v. Hawkins, 103 Tex. 327, 126 S. W. 114, 115, Judge Brown said:
The policy of enacting the law, whether good or bad, was a question for the Legislature, and the courts cannot consider it.’
* * * The fact that the Act requires all funds collected under the contracts to be deposited in a trust fund is a mode of regulation of the business and does not prohibit its conduct. The fact that the Legislature saw fit to impose on the business a regulation that to appellees may seem onerous will not render the Act unconstitutional because the Legislature acting in the public interest was authorized to impose regulations on the business that operates uniformly on all persons engaged in such business.”
Appellant company, in stating that the Act will prohibit it from doing business, apparently overlooks the fact that it is still permitted to enter into contracts under its “lay away” plan; in fact, the president of Reserve Vault stated that he could operate his business under this last type of contract. At any rate, we find that the Act is regulatory, rather than prohibitory.
Appellants next argue that even if regulation is proper, the present act goes beyond any actual necessity. This argument is closely related and interwoven to that just discussed, and the cases there cited dispose likewise of this contention. It might be added that this Act is, to some extent, more liberal than acts of some of our sister states, in that it permits the company to withdraw the accrued interest. Furthermore, the Commissioner of the Securities Division of the State Bank Department is given some discretion in enforcement provisions, and his testimony before the court indicates a fair and reasonable interpretation of his duties.
Finally, appellants complain that the Act impairs the contract between appellant company and its salesman for any commission earned prior to the passage of the Act. This argument is based on the provisions of the federal and state constitutions which prohibit the impairing of contracts. United States Constitution, Article I, Section 10, Arkansas Constitution, Article II, Section 17. The great weight of authority is contrary to appellants’ contention, it being recognized that these prohibitions do not prevent a proper exercise by the state of its police power. See 16 C. J. S., § 281, p. 1284. In Home Building & Loan Assn. v. Blaisdell, 290 U. S. 398, Chief Justice Charles Evans Hughes stated the reasoning with unusual clarity:
“Not only are existing laws read into contracts in order to fix obligations as between the parties, but the reservation of essential attributes of sovereign power is also read into contracts as a postulate of tbe legal order. Tbe policy of protecting contracts against impairment presupposes the maintenance of the Government by virtue of which contractual relations are worthwhile — a government which retains adequate authority to secure the peace and good order of society. This principle of harmonizing the constitutional prohibition with the necessary residuum of state power has had progressive recognition in the decisions of this Court.”
Further in the Opinion, quoting from an earlier case:
“It is the settled law of this court that the interdiction of statutes impairing the obligation of contracts does not prevent the State from exercising such powers as are vested in it for the promotion of the common weal, or are necessary for the general good of the public, though contracts previously entered into between individuals may thereby be affected. This power, which in its various ramifications is known as the police power, is an exercise off the sovereign right of the Government to protect the lives, health, morals, comfort and general welfare of the people, and is paramount to any rights under contracts between individuals. ’ ’
In Memorial Gardens Association, Inc., v. Smith, supra, the Illinois court commented on this particular question as follows:
“Plaintiffs contend that the act constitutes an unwarranted interference with the right of citizens to contract with each other and thus violates constitutional guarantees of both the State and Federal constitutions. While rights of contract are favored and protected there is no principle of absolute freedom of contract. It is a qualified right and the State may, in its legitimate exercise of the police power, pass laws which limit or affect the right of contract so long as those regulations are reasonably necessary to secure the health, safety, morals or general welfare of the community, (citing cases) The constitutional guarantee does not withdraw from legislative supervision that department of human activity which, consists in the making of contracts, or deny to government the power to provide restrictive safeguards. Liberty implies only the absence of arbitrary restraint, not immunity from reasonable regulations and prohibitions imposed on the interests of the community, (citing-cases) In the exercise of the police power it becomes necessary to prohibit some forms of contract entirely and to restrict others, yet the right to do so is unquestioned when the. public welfare demands it-. ’'
In Reiman v. Rawls, 188 Ark. 983, 68 S. W. 2d 470, this Court, quoting from the Blaisdell case, said:
“But into all contracts, whether made between States and individuals, or between individuals only, there enter conditions which arise not out of the literal terms of the contract itself; they are superinduced by the pre-existing and higher authority of the laws of nature, of nations or of the community to which the parties belong; they are always presumed, and must be presumed, to be known and recognized by all, are binding upon all, and need never, therefore, be carried into express stipulation, for this could add nothing to their force. Every contract is made in subordination to them, and must yield to their control, as conditions inherent and paramount, whenever a necessity for their execution shall occur.”
Affirmed.
Robinson, J., not participating.
The sale of grave vaults is covered under Section One of the Act.
See Section One of the Act.
This is a family corporation, all stock being owned by members of the family. The corporation was created with the minimum of $300 paid in capital.
The decree of the Chancery Court, after finding that contract “B” was not within the purview of the Act, further provided: “If at any time the contract marked Exhibit “B” or a similar contract is used as a subterfuge to evade Act 78 of 1961, this judgment is not res adjudicata and shall not prevent the State of Arkansas from instituting appropriate legal action to insure compliance with the provisions of said Act.”
Numerous states, including (but not limited to) Arizona, Idaho, Kansas, Maine, Montana, New York, North Dakota, South Dakota, Texas, Utah, Virginia, and Wisconsin, require all funds to be deposited and held in trust. Many of these states include the interest accruals. Other states require that the greater percentage of the funds be placed in trust; for instance, Georgia, 85%; Iowa, 80%; and Florida, 75%. Illinois requires that 95 % of the principal be so deposited, and further provides that only 5% of the interest may be used. | [
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Hart, J.,
(after stating the facts). It is first insisted that there is no evidence to warrant the verdict, but we do not agree with counsel in this contention. The note was introduced in evidence by the plaintiff’s attorney. It bore date of November 12, 1908, and was payable to Johnson & Jarrett ten months after date. Jarrett testified that, not later than February, 1909, the note was transferred to the plaintiff in payment of an indebtedness owed by Johnson & Jarrett to him. His testimony in this respect is not attempted to be contradicted. The transfer of a negotiable instrument before maturity, in payment of an antecedent debt, is a sufficient consideration to constitute the purchaser a holder for value. Southern Sand & Material Co. v. Peoples Savings Bank & Trust Co., 101 Ark. 266; Miles v. Dodson, 102 Ark. 422. Jarrett also testified that at the time the note was assigned to Hammons the latter did not have any notice that there was any defense to the note. If it be said that Jarrett’s testimony on this point is not undisputed because he was contradicted in regard to his statement that the note was not procured by fraud, still the burden of proof was upon the defendants to show that the plaintiff had notice of the fraudulent procurement of the note. Where, in an action on a promissory note, the defense is made that the execution of the note was procured by fraud, the burden is on the plaintiff to show that value was given for the note. Tabor et al. v. Merchants National Bank, 48 Ark. 454. The reason assigned for this rule is that “where there is fraud the presumption is that he who is guilty will part with the note for the purpose of enabling some third party to recover upon it, and such presumption operates against the holder, and it devolves upon him to show that he gave value for it. ’ ’ But when such payment is shown, it devolves upon the defendant to prove that plaintiff purchased with notice, actual or constructive, that the execution of the note was procured by fraud. Bank of Monette v. Hale, 104 Ark. 388; Old National Bank of Fort Wayne v. Marcy, 79 Ark. 149. The rule is that the plaintiff must show himself to be a holder for value, and, on having done so, the burden is then .shifted back to the makers of the note to show that plaintiff had notice of the fraudulent procurement of the note at the time that he purchased the paper. The reason is that the facts which constitute the fraud are, for the most part, affirmative in their nature, and must be set up by the defendants as a defense to the action on the note. Therefore, the burden of proof is upon them to establish their defense.
Mr. Daniel, after approving- the rule as announced above, said: “This principle is obviously correct, for to require the plaintiff to show absolutely that he had knowledge of facts would be to burden him with the necessity of proving’ an impossible negative. He makes out a prima facie case by proving that the instrument was endorsed to him for value before maturity. Nothing else appearing, a presumption arises that he purchased the note in good faith without notice of fraud, because it is not likely that he would give full value for a note which he believed to be fraudulent, taking the hazard upon himself, and because it would be difficult to prove good faith in any better way.” Daniel on Negotiable Instruments (6 ed.) vol. 1, § 819; Commercial Bank of Danville v. Burgwyn et al. (N. C.), 17 L. R. A. 326.
Again, it is contended by counsel for defendants that the court erred in instructing the jury as to the amount of proof necessary to establish fraud in the procurement of the note; but we need not determine this assignment of error. As we have already seen, the plaintiff proved that he was a purchaser for value before maturity of the note. The burden of proof was then cast upon the defendants to show that the plaintiff had notice that the note was procured by fraud. The defendants made no effort whatever to establish this fact. If it be held that the testimony of Jarrett to the effect that the plaintiff did not have notice of any fraud in the procurement of the note was not undisputed because his testimony in other respects was contradicted by that of the defendant, J. H. Harbison, this contradiction to his testimony would not be affirmative proof that the plaintiff had notice that the note was procured by fraud. . The burden being upon tbe defendants to establish that fact, and no effort having been made by them to do so, it becomes immaterial whether or not the court erred in instructing the jury as to the amount of proof that would be necessary to show that the note was procured by the fraudulent representations of Johnson & Jarrett, for this issue passed out of the case when the defendants failed to show that the plaintiff had notice of the fraudulent procurement of the note.
It is next urged by counsel for defendants that the court erred in refusing to instruct the jury that if it should find that the note had been altered by adding the words “10 per cent per annum” since its execution, without permission from the maker, it should find for the defendants. This instruction was abstract. Therefore, the court properly refused to give it. J. H. Harbison testified that he could not read and write. He did not state that the words “10 per cent per annum” were added to the note after its execution. He only stated that the words “10 per cent per annum” were not mentioned when the note was read to him before he signed it. The court, when this testimony was introduced, held that it could only be considered competent insofar as it tended to prove fraud in the procurement of the note. His ruling in this respect was not excepted to by the defendants, and the action of the court in thus limiting the testimony was not made one of the grounds of the motion for new trial. In addition, the testimony of Jarrett shows that the words were in .the note when it was signed by the defendants, and that they were not added there afterward. The defendant can not complain that the court did not give an instruction on a matter which the court held was not an issue in the case, and to which ruling no objection was made.
The defendant, Minerva Harbison, was the wife of J. H. Harbison. She was not made a defendant to the original complaint filed in this action. Subsequently an amendment to the complaint was filed by the plaintiff in which she was made a party defendant, and judgment was asked against her in the sum of $73.34. The case' was instituted in the circuit court, and the amount for which Mrs. Harbison was sued not being within the jurisdiction of the court, the judgment against her is void, and will be reversed and the cause of action against her dismissed.
The judgment against the defendants, J. H. Harbison and G-. L. Lynch, will be affirmed. | [
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McCulloch:, C. J.
This is an action at law insti- . tuted by appellant to recover a tract of land in Randolph County, Arkansas, containing 160 acres, the parties to the action all claiming title from a common source, one IT. C. Jarrett, who died on November 4, 1869, while occupying the land as his homestead. He left several chil-. dren, all of whom-are parties to this action, and a widow, who died in the year 1909. The widow occupied the land with her children until she remarried in the year 1884, when she and the children removed therefrom, but the widow continued to hold possession of the land through her tenants and collected the rents up to the time of her death.
There was an .administrator of the estate of H. C. Jarrett, one Thomas Simington, who sold the lands -under order of the court to pay debts on December 18, 1877, one Thomas Poster being the purchaser at the administrator’s sale, and he subsequently conveyed to one of the defendants in this case.
The defendants plead the bar of the statute of limitation, and also defend under the conveyance to one of them from the purchaser at the administrator’s sale.
The court gave a peremptory instruction in favor of the defendants, and the plaintiff has appealed.
The rights of the parties are to he determined by the homestead laws of the State which existed at the time of the death of H. C. Jarrett in the year 1869. That was under the Constitution of 1868, which provided that the homestead of the owner should, after his death, “be ‘exempt from the payment of his debts, in all eases, during the minority of his children, and also so long as his widow shall remain unmarried, unless she be the owner of a homestead in her own right.” Sec. 5, art. 12, Constitution 1868.
The homestead was not subject to sale for the debts of the decedent until the widow abandoned it by remarriage in the year 1884.
It does not appear from the pleadings or proof that any of the children were minors at that time, and the remarriage of the widow operated as an abandonment of it as a homestead.
Notwithstanding her abandonment of the land as a homestead, she still had the right to occupy the premises through her tenants by virtue' of her quarantine rights under the statute. Kirby’s Digest, § 2704.
Her occupancy was, therefore, not adverse to the heirs, and the statute of limitation did not begin to run against any of them so long as the occupancy of the widow continued. Brinkley v. Taylor, 111 Ark. 305, 163 S. W. 521.
The administrator’s sale to Foster was void for the reason that the probate court was without jurisdiction to order it prior to the abandonment by the widow. McCloy & Trotter v. Arnett, 47 Ark. 445; Bond v. Montgomery, 56 Ark. 563.
It is insisted by counsel for defendant that the allegations of the complaint are not sufficient to show that the property was the homestead of H. C. Jarrett at the time of his death, it being contended that the allegations only state conclusions of law on that subject.
We are of the opinion, however,that the allegations of the complaint are sufficient, inferentially at least, to set forth the homestead right, and that in order to properly raise the defect's in the complaint a motion to make more definite and certain would be required. No such motion was presented, and the evidence establishes specifically all the facts necessary to make the property the homestead of H. C. Jarrett at the time of his death.
We are of the opinion, therefore, that the court erred in giving a peremptory instruction in favor of the defendants. Reversed and remanded for a new trial. | [
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Hughes, J.,
(after stating the facts). The only question we have considered and determined in this case is, whether this suit can be maintained, the citizens of Fulton having failed to provide and tender to the railway company means sufficient to defray the reasonable expenses of grading a switch or side track at said town of ffulton for the use of said company, in accordance with the requirement of section 5501 of Mansfield’s Digest. There does not appear to be any ambiguity or obscurity in this section of the statute. Where a statute is unambiguous, as a general rule, but little room is left for construction.
In the case of Sturges v. Crowninshield, 4 Wheaton, 202, it is said: ‘ ‘ Although the spirit of the instrument, especially of a constitution, is to be respected not less than its letter, yet the spirit is to be collected chiefly from its words. It would be dangerous in the extreme to infer from extrinsic circumstances that a case for which the words of the instrument expressly provide shall be exempt from its operation: Where words conflict with each other, where the different clauses of an instrument bear upon each other, and would be inconsistent, unless the natural and common import of the words be varied, construction becomes necessary, and a departure from the obvious meaning of words is justifiable. But if, in any case, the plain meaning of a provision, not contradicted by any other provision in the same instrument, is to be disregarded, because we believe the framers of that instrument could not intend what they say, it must be one in which the obscurity and injustice of applying the provision to the case would be so monstrous that all mankind would, without hesitation, unite in rejecting the application.” Quoted in Sutherland on Statutory Construction, pp. 315, 316, sec. 238.
Mr. Sutherland says: “One who contends that a section of an act must not be read literally must be able to show one of two things: either that there is some ■other section which cuts down or expands its meaning, or else that the section itself is repugnant to the general purview. The question for the courts is, what did the legislature really intend to direct; and this intention must be sought in the whole of the act, taken together, and other acts in pari materia. If the language be plain, unambiguous and uncontrollable by other parts of the act, or other acts or laws upon the same subject, the court cannot give it a different meaning to subserve public policy or to maintain its constitutionality. The limited meaning of the words will be disregarded when it is obvious from the act itself that the use of the word was a clerical error, and that the legislature intended it in a different sense from its common meaning. Where that which is directed to be done is within the sphere of legislation, and the terms used clearly express the intent, all reasoning derived from the supposed inconvenience, or even absurdity, of the result, is out of place. It is not the province of the courts to supervise legislation, and keep it within the bounds of propriety and common sense.” Sutherland on Statutory Construction, sec. 238.
Where the statute makes no exceptions, the courts can make none. It might be very just and reasonable and right that the statute should make an exception, such as is contended it does make, or ought to be construed to make, but this was within the power of the legislature, “and its exercise of the power cannot be restrained or varied by the courts to subserve” convenience, to relieve from hardships or from requirements that seem unreasonable, or even absurd, where the language is plain and unambiguous. Sims v. Cumby, 53 Ark. 421; McGaughey v. Brown, 46 Ark. 37; Springfield, etc. Ry. Co. v. Lambert, 42 Ark. 122; Memphis, etc. Railroad Co. v. Carllee, 39 Ark. 246.
The circuit court erred in awarding the mandamus, for the reason that no tender of amount necessary to pay expenses of grading switch had been made before suit, as required by the statute.
Reversed and dismissed. | [
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Wood, J.
This was an action for damages growing out of an alleged illegal seizure of personal property which appellant claimed belonged to him, and was unlawfully levied upon and taken out of his possession by appellee, under writs of attachment from the United States court, commanding appellee, as United States marshal, to attach and safely keep the property of Martin Bros.
Appellee admitted the levy upon part of the property described in appellant’s complaint, but denied that it was the property of appellant, or in his possession when levied upon; says that he was not a party to. nor bound by the attachment proceedings; that the writs were in due form; and that the property levied upon belonged to Martin Bros. He denies the loss and damage.
Martin Bros., insolvent merchants at Reyno, Ark., on the 29th day of December, 1891, sold their stock of goods and certain other articles of personal property to one B. F. Bowden, the appellant. The consideration for the purchase was $4500, evidenced by various promissory notes. H. T. Simon-Gregory & Co. and Shafer, Schwartz & Co. were creditors of Martin Bros, for large sums, which had accrued before the sale from Martin Bros, to Bowden. Martin Bros, assigned two of the Bowden notes—one for $325 to H. T. Simon-Gregory & Co., and another for $2,75 to Shafer, Schwartz & Co.—as collateral security. These firms did not know, at the time the notes were received by them, that said notes were given as a part of the price of the property sold by Martin Bros, to Bowden. Their collecting agent, however, received information as to the sale, and all the circumstances connected therewith, on the 7th day of January, 1891. On the 12th day of January, 1891, this agent, at the instance of Simon-Gregory & Co. and Shafer, Schwartz & Co., brought suits in the United States court for the eastern district of Arkansas, H. T. Simon-Gregory & Co. and Shafer, Schwartz &■ Co. being the plaintiffs, and Martin Bros, the defendants. Writs of attachment were issued on same day suits were brought, based on the sale of Martin Bros, to Bowden, which the plaintiffs in attachment claimed was fraudulent as to creditors. These were the writs under which appellee seized the property for which damage is sought in this action. The attachments were dissolved on the 6th day of March, 1891. The notes of Bowden, which had been transferred by Martin Bros, to H. T. Simon-Gregory & Co. and Shafer, Schwartz & Co., had never been returned, but were in possession of Muse, their collecting agent, and were referred to and exhibited on the trial of the issue on the attachments.
1. The court over the objection of appellant gave the following instruction : “(7) If the jury believe from the evidence that Martin Bros, delivered two of the notes executed by Bowden, as consideration for the sale of the property to Simon-Gregory & Co., and Shafer, Schwartz & Co., without notifying them that they were the proceeds of a sale of the property to Bowden, and that Simon-Gregory & Co. and Shafer, Schwartz & Co. did not, at the time of receiving and accepting said notes, have information or knowledge that the said notes were the proceeds of a sale to Bowden of the property after-wards attached, then they were not estopped from causing the attachment to issue.” And refused to give the following, asked by appellant, to which ruling he also objected : “ (3) If the jury find that said sale was fraudu lent in law because of its tendency to cheat, hinder or delay the creditors of Martin Bros., still the sale would be good as between the parties to that sale, and could only be set aside on the intervention of creditors, and such creditors might waive their right to attack said sale ; and if the jury further find that, after making said sale, Martin Bros, sent the attaching creditors notes that were given by Bowden for a part of the price of the property thus bought by him, and that they, or their agent acting for them in that behalf, knowing' that said notes were given for a part of said price, have retained said notes until the present time, then they were estopped from maintaining' their said attachments, and they must be considered as having ratified said sale; and, as between them and said Martin Bros, and said Bowden, the property thus sold was the property of the said Bowden, and was not the property of Martin Bros., and was therefore not subject to attachment in favor of said attaching creditors ; and if the jury find that said attachments in favor of H. T. Simon-Gregory & Co. and Shafer, Schwartz & Co. were levied on said property for the debt of Martin Bros, under these circumstances, then said levy was illegal, and-they will find for the plaintiff in this suit.”
It is insisted that the court was correct, for two reasons: (1) Because of a failure to set out all of the testimony, and (2) Because of inherent defects in the instruction refused.
The bill of exceptions begins thus: ‘‘Be it remembered that, on the trial of this cause, evidence was introduced tending to show the following state of facts.” Rule 13 of this court relieves of the burden and expense of setting out. the testimony in extenso. That is no longer required in civil cases or misdemeanors. But, to ke'ep this court from indulging the presumption that all facts necessary to establish the correctness of the rulings of the lower court were proved that could have been proved, the bill of exceptions must show affirmatively that it contains a statement of all the facts required to explain the rulings of the trial court upon the issues involved. This is essential now ; just as it was formerly necessary, where the evidence was fully set out, to say : “This was all the testimony in the case.” The statement “that evidence was introduced tending to show the following state of facts ” would by no means be conclusive that there were not other facts shown on the trial which, if brought before us, would sustain the ruling's and judgment of the lower court. It must not be left for us to say by implication that there were no other facts shown. We should decline, therefore, to reverse for the refusal to give the third instruction, even if it was correct; for we are unable to say from the record that there was not testimony produced at the trial which rendered the giving of the instruction either unnecessary or improper. Por instance, if the plaintiffs offered to return or surrender the notes before bringing the attachment suits, or at the trial, and Martin Bros, refused to accept same, the above prayer would have no place in the case.
Upon the hypothesis that the bill of exceptions contained a statement of all the facts necessary to explain the ruling of the court in refusing it, was the prayer correct ?
In the case of Millington v. Hill, 47 Ark. 309, it is held that “a conveyance to defraud creditors is good as between the parties and their privies, although it may be avoided by the creditors of the fraudulent grantor. If the creditors condone the fraud, the grantee’s title is good against all comers, and when any creditor, with knowledge of the wrong that has been done him, makes his election to take from the grantee the purchase price of the land, his conduct is, in effect, an affirmance of the sale, and a waiver of the right to complain of the fraud.” The principle here announced is elementary, and is as applicable to this case as to the one in which it was announced, although the facts are different. If the attaching creditors, with knowledge of the fraudulent sale, elected to take the notes given for the purchase price of the goods bought, their conduct would be, in effect, an affirmance of the sale, a condonation of the fraud. Thompson v. Peek, 115 Ind. 512. It is urged, however, that, instead of an election to take the hotes, the attaching creditors, by issuing their attachments, were proceeding in the most vigorous and emphatic way to disaffirm the fraudulent sale, and to announce their intention of taking nothing under it. But, in the absence of a return of or offer to return the notes, or a showing that such was impracticable or impossible, how are we to know that it was not their double purpose to hold on to the fruits of the fraud with one hand, while attempting to uproot the tree that bore it with the other? Sumner v. Parker, 36 N. H. 449. Our own court has long ago announced the rule that a party defrauded must, “within a reasonable time after the fraud is discovered, elect to rescind, if such be his purpose. And he can only rescind by returning, or offering to return, whatever he may have received, under the contract, of value to either party.” Desha v. Robinson, 17 Ark. 240; Seaborn v. Sutherland, id. 603; Bellows v. Cheek, 20 id. 438; Hynson v. Dunn, 5 id. 395; Davis v. Tarwater, 15 Ark. 286; Johnson v. Walker, 25 id. 204; Benjamin v. Hobbs, 31 id. 151; Merritt v. Robinson, 35 id. 483; Hanger v. Evans, 38 id. 334; Berman v. Woods, 38 id. 351. To the same effect, see Farwell v. Hanchett, 9 N. E. Rep. 58, S. C. 120 Ill. 573; Bowen v. Schuler, 41 Ill. 192; 8 A. & E. Enc. p. 850, and other cases there cited; Johnson v. McLane, 43 Am. Dec. 102. And the general rule is that such return, or offer to return, must be before the bringing of suit. There are, however, some well settled exceptions, even as firmly established as the rule itself. One is where the vendor who seeks to rescind for fraud has received nothing but the notes of the vendee in payment. In such a case, if the vendor can and does produce them at the trial for return to the vendee, or for cancellation, it is held sufficient. Wood v. Garland; 58 N. H. 154.
If the notes are non-negotiable, a return, or offer to return, at the trial is all that is necessary ; or where the notes are negotiable, and still in the possession of the vendor, if offered or tendered back at the trial, it is sufficient to enable the vendor to maintain his suit. If the notes are negotiable, and not surrendered at the trial, the presumption would be they had been negotiated, and no action to rescind could be maintained. Thurston v. Blanchard, 22 Pick. 18; Emerson v. McNamara, 41 Me. 565; Bassett v. Brown, 105 Mass. 551; Thayer v. Turner, 8 Met. 552; Bartlett v. Drake, 100 Mass. 176. See, also, Dayton v. Monroe, 47 Mich. 193; 21 A. & E. Enc. Law, p. 87, and authorities cited in addition to those supra.
The case at bar comes within the spirit, if not the letter, of the above exception. Under our statute (Mansfield’s Dig. sec. 473), promissory notes are assignable; but the record shows that the attaching creditors, to whom the notes had been assigned as collateral security, still had them in their possession at the trial of the attachment issue:. They were exhibited there, and referred to; and had these notes been tendered and surrendered to the defendants there, they would have been placed in statu quo as to the notes, and the attachments, in that event, should not have been dissolved for failure to return or offer to return them before suit.
It follows, from what we have said, that instruction numbered three needed this qualification after the words ‘ ‘ they were estopped from maintaining their said attach ments,” to-wit, “unless they had offered to return the notes before bringing suit, or at the trial, and said offer had been rejected.” This modification would have made the instruction complete. * It was not error, therefore, to refuse it, for such proof is presumed, in the absence of a showing to the contrary.
The seventh is erroneous. Knowledge of the fraudulent transaction was necessary on the part of the attaching creditors before they could be held to have ratified the same by receiving or accepting the notes, and failing to return or to offer to return them. But such knowledge, in order to estop them, did not have to be coeval with the receiving and accepting the notes, as seems to be the view presented by the instruction. It will be observed, from what has already been said, that it was the duty of the attaching creditors, if they designed to rescind the alleged fraudulent sale, to proceed to do so by offering to return or returning the notes received by them as the result of such sale, within a reasonable time after discovering the alleged fraud, whether such knowledge came to them at the time of receiving the notes or not. And a failure to do so before issuing the attachments, under the general rule, would estop them from maintaining said attachments.
The attaching creditors in this particular case, however, coming within the purview of the exception to the rule, could have maintained their attachments, although they failed to tender back the notes before issuing the attachments, provided they did so, or offered to do so at the trial. The testimony, so far as this record discloses, reveals an imperfect effort on the part of the attaching creditors to repudiaté the sale. Had there been a return of, or offer to return, the notes before bringing suit, or at the trial, their disaffirmance would have been complete. The presumption is this was done, and hence there is no prejudicial error in the giving of the seventh prayer of appellee. McKinney v. Demby, 44 Ark. 74; Railroad Co. v. Amos, 54 Ark. 159.
2. On the trial of this cause, witness Bowden referred to a memorandum purporting to contain a list of the property bought from Martin Bros. When asked by defendant’s counsel who made out the memorandum, he replied, one of the firm of Martin Bros., but that he was satisfied from his own knowledge that it was correct. The court refused, over appellant’s objection, to allow the witness to refer to said memorandum to refresh his memory. This was error. The witness, being satisfied-from his own knowledge of the correctness of the memorandum, and proposing to use it only for the purpose of refreshing his memory, speaking as to the facts from his own recollection of them, could use the memorandum to refresh his memory. The writing does not have to be an original writing, or made by the witness, when it is proposed to use it only for the purpose of refreshing the memory of the witness. 1 Greenleaf, Ev. sec. 436. Appellant could not have been prejudiced by this ruling, however, since his complaint purported to set forth all the articles bought by him of Martin Bros, which had been lost or damaged, and his answer admitted that part of this property was levied upon, and the bill of exceptions says “that the proof tended to'show that the property levied upon was damaged.” Yet the verdict of the jury was against appellant for every thing, showing that their verdict must have been upon the theory that appellant was not the owner of the property, or that the sale was fraudulent.
3. The second assignment of error—that the court allowed “witness Muse to state conversations had between him and Joe N. Martin with regard to the value of the goods and other properties sold after the date of the sale made from Martin Bros, to Bowden and the reasons for making said sale”—is not well taken.
The contention in the lower court seems to have been that, if the sale from Martin Bros, to Bowden was fraudulent as to creditors, appellee was not liable. The proof was principally directed to the issue of the rightful or wrongful suing out of the attachments under which the levy was made. To avoid the sale for fraud, it was necessary to show that Martin Bros, sold with the fraudulent intent to cheat, hinder, etc., that being the ground alleged. What one of the parties to the fraudulent transfer said about his connection with it, made either before or after the sale, would certainly be admissible if it tended to throw any light upon the character of the transaction. Dyer v. Taylor, 50 Ark. 318; Gauss v. Doyle, 46 Ark. 127.
Finding no prejudicial error, the judgment of the Pulaski circuit court is affirmed. | [
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Sam Robinson, Associate Justice.
This is the second appeal in a workmen’s compensation case. In the first appeal a judgment in favor of the employer, Bear Brand Roofing, Inc., was reversed because the Compensation Commission had refused to allow a doctor, produced as a witness by the claimant, to answer a hypothetical question propounded by counsel for the claimant. The judgment was reversed and remanded for further proceedings not inconsistent with the opinion, 232 Ark. 639, 346 S. W. 2d 472.
When the case was returned to the Workmen’s Compensation Commission, without hearing any additional testimony the Commission entered a judgment for the claimant. The employer filed a motion to set aside the judgment and the motion was granted. Claimant then appealed to the Circuit Court from the order setting aside the judgment and applied for a writ of Mandamus to compel the Commission to re-enter the judgment.
Obviously, in the circumstances it was error for the Commission to enter a judgment for the claimant and the Commission quite properly set it aside. The proper procedure is for the Commission to set the cause for a hearing, allow the doctor to answer the hypothetical question and permit either side to introduce any additional admissible evidence that they might wish to produce.
Moreover, in addition to what we have said, the Commission’s action in setting aside the judgment is not a final order from which an appeal will lie. Batesville v. Ball, 100 Ark. 496, 140 S. W. 712.
The appeal is dismissed. | [
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Ed. F. McFaddin, Associate Justice.
This is a controversy for priority as between a construction money mortgage and materialmen’s liens; and necessitates a study of our Lien Statutes (§ 51-601 et seq. Ark. Stats.). The Chancery Court held that the construction money mortgage had priority; and the materialmen have appealed.
The facts are stipulated. Mr. Creed undertook to erect a residence for himself. On October 31, 1959, at his order, Big Bock Stone & Material Company (hereinafter called "Big Bock”) delivered certain building materials to the lot, and they were used in the building and a lien claim duly filed therefor. At eleven A.M. on November 10, 1959 there was filed for record a mortgage from Mr. Creed to appellee, Jack Collier East Company, Inc. (hereinafter called "East”), which instrument recited that it was a construction mortgage for a definite sum of money. On the afternoon of November 10, 1959 Mr. Creed purchased some materials from appellant, Planters Lumber Company (hereinafter called “Planters”), which materials were delivered to the lot on November 11, 1959, and, with other materials subsequently purchased, were all used in the construction of the building, and a lien claim was duly filed for the amount unpaid. On April 1, 1960, appellant Young Tile Company (hereinafter called “Young”), furnished Mr. Greed materials used in the construction of the building and a lien claim was likewise duly filed for the amount unpaid.
On September 14, 1960, Mr. Creed being in default, East filed foreclosure on its said mortgage, naming, inter alia, Big Rock, Planters, and Young as defendants, each of which claimed its lien to be superior to the East mortgage on the theory that Big Rock had delivered materials to the lot ten days before the East mortgage was filed for record; that the date of the delivery of the Big Rock material to the lot was the ‘ ‘ commencement of such building”; and that Planters and Young could claim their liens from the “commencement of such building” because Big Rock furnished the material before the filing of the East mortgage. East recognized the superiority of the claim of Big Rock, and paid it; but insisted that the claims of Planters and Young were inferior to the East mortgage, which had been recorded prior to the furnishing of any materials by Planters or Young. As aforesaid, the Chancery Court held that the East mortgage was superior to the lien claims; and Planters and Young have appealed.
East relies primarily on that part of § 51-605 Ark. Stats. (Section 3 of Act 146 of 1895) which, after stating that materialmen have a lien,' says: “. . . provided, however, that in all cases where said prior lien or incumbrance or mortgage was given or executed for the purpose of raising money or funds with which to make such erections, improvements or building, the said lien shall be prior to the lien given by this act.” Planters and Young rely primarily on § 51-607 Ark. Stats, (being Section 5 of Act 146 of 1895), which says: “The lien for work and materials as aforesaid shall he preferred to all other incumbrances which may be attached to or upon such building ... or other improvements, or the ground, or either of them, subsequent to the commencement of such buildings or improvements.” The appellants insist: (a) that the furnishing of their materials relates back to the “commencement of such building”; (b) that they have a lien from the day Big Rock furnished its materials because that was the “commencement of such building”; and that East could not defeat the priority of their claims by paying the Big Rock claim, as East did.
The determination of the relative superiority between the mortgage lien and the materialmen’s liens requires a careful consideration of the applicable statutes and the cases construing them. Section 51-1002 Ark. Stats, (which comes to us from the Revised Statutes of 1836), provides that a mortgage shall be a lien on the mortgaged property “. . . from the time the same is filed in the recorder’s office for record and not before. . . . ” So the East mortgage in this case was a lien on the property here involved from eleven A. M. November 10, 1959. Now let us examine the Lien Statutes to see the effective date of the liens of Planters and Young.
The statutes prescribing the time when material-men’s liens are effective are later statutes than the mortgage statute previously mentioned. The applicable lien statutes are contained in §51-601 et seq. Ark. Stats, (which come to us from the Act No. 146 of 1895, which was a replacement statute of the earlier Act 107 of 1873). We mention the germane language here applicable :
(A) Section 51-601 Ark. Stats, states: “Every . . . person who shall . . . furnish any material . . . for any building . . . upon land . . . under . . . any contract with the owner . . . upon complying with the provisions of this act . . . shall have for his . . . materials . . . furnished a lien upon such building . . . and upon the land belonging to such owner. . .
(B) Section 51-613 Ark. Stats, requires: “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 (90) days after the things aforesaid shall have been furnished ... a just and true account . . . and ... a correct description of the property. . . . ”
(C) Section 51-607 Ark. Stats, (which comes to us also from Act 146 of 1895). provides: “The lien for . . . materials as aforesaid shall be preferred to all other incumbrances which may be attached to or upon such building ... or the ground . . . subsequent to the commencement of such buildings or improvements. ’ ’
So when the materialman files his account with the circuit clerk as provided by the said § 51-613 Ark. Stats., his lien dates back to the ‘ ‘ commencement of such building,” and becomes superior to any lien on the property that may have been placed there “subsequent to the commencement of such building.” This Legislative design of the subsequently filed materialmen’s lien being superior to the mortgage filed prior thereto has been recognized in many of our cases. One of the most outstanding is Apperson v. Farrell, 56 Ark. 640, 20 S. W. 514, which was decided under the 1873 lien statute hut which had an equivalent provision in Mansfield’s Digest § 4408. Some other cases clearly recognizing this “relation hack” to the commencement of the building for the liens of the mechanics or the materialmen are: Gunter v. Ludlam, 155 Ark. 201, 244 S. W. 348; Ferguson Lumber Co. v. Scriber, 162 Ark. 349, 258 S. W. 353; and Crown Central v. Frick-Reid, 173 Ark. 983, 293 S. W. 1012.
In § 51-605 Ark. Stats, it is provided that if the owner desires to obtain funds with which to erect the building or improvement on the land, he can execute a mortgage for that purpose and place it of record before the work commences, and then “. . . said lien shall be prior to the lien given by this act. ’ ’ However, in this instance, (a) the construction mortgage must he executed before the commencement of the building (Apperson v. Farrell, supra; and Shaw v. Rackensack, 174 Ark. 492, 295 S. W. 966); (b) the mortgagee must be bound to advance the money for the construction (Ashdown Hardware v. Hughes, 223 Ark. 541, 267 S. W. 2d 294); and (c) that fact must be stated in the mortgage (Jack Collier East Co. v. Barton, 228 Ark. 300, 307 S. W. 2d 863). In the case at bar the mortgage was a construction money mortgage and the mortgagee was bound to make the advancements; but it was stipulated that the mortgage was not placed of record before the ' ' commencement ’ ’ of the building. If Big Rock and East were the only litigants here, the case would be easy of decision because Big Rock furnished its materials on October 31, 1959, which was at least ten days before the recording of the mortgage; and the Big Rock lien was therefore superior to the East mortgage under the authority of Apperson v. Farrell, supra.
The complaint and the stipulation admit that Big Rock perfected its lien under § 51-613 Ark. Stats. East recognized this fact by paying the Big Rock lien during the course of this litigation. The question then becomes whether East, by paying the Big Rock lien claim, can defeat the other lien claimants, such as Planters and Young, whose materials were furnished subsequent to the recording of the East mortgage; and we answer that question in the negative. Section 51-611 Ark. Stats, states: “The liens for . . . things furnished as specified in this act . . . shall be upon an equal footing, without reference to the date of filing the account of lien; . . . Provided, such account or liens shall have been filed and suit brought as provided by this act.” This is § 9 of Act 146 of 1895 and clearly states that every lien shall be equal. So when the liens of Planters and Young were filed, they were on an equality with the lien of Big Rock. In Long v. Abeles Co., 77 Ark. 156, 93 S. W. 67, in construing this “equality statute,” this Court said:
“As we construe the provisions of the statute, every person who furnished materials to the contractor that went into appellant’s building, and who had complied with the law for preserving his lien, had a lien for the amount of the materials furnished, and this lien was on an equal footing with all other liens under the contract. If such liens were equal to or less than the contract price,, they had to be discharged by payment in full; if they exceeded the contract price, they had to be prorated. So, appellee, having complied with the lato as to notice and the filing of its claim with the circuit clerk, could, not be defeated of its lien by any payments that appellant may-have made to other bona fide lien claimants, under the-contract. Appellant could not discriminate between those who were entitled to liens under the original contract. He could not pay one and refuse another. To dischargeappellee’s claim for a lien, it was necessary to include it in any payment that was made of the bona fide claims under the contract. It could not be ignored entirely and defeated by the payment of other claims in full that had accrued under the contract, where the amount of these claims exceeded the contract price.” (Emphasis our own.)
Therefore, under the “equality statute” (§ 51-611 Ark. Stats.) when Planters and Young perfected their liens by complying with § 51-613 Ark. Stats., as they did, then their liens related back to “the commencement of such building” as stated in § 51-607 Ark. Stats.; said liens of Planters and Young were on an equality with the lien of Big Rock; and East could not by paying Big-Rock thereby defeat Planters and Young of the priority that they enjoyed because the Big Rock materials were furnished before the construction mortgage was placed of record, and Planters and Young were on an equality with Big Rock.
The Chancery decree is reversed and the cause remanded for the entry of a decree in accordance with this opinion.
G-eorge Rose Smith, J., not participating.
Harris, C. J., and Robinson, J., dissent.
The Chief Justice joins in the dissent.
The language in the mortgage was: “Grantor has applied to the grantee for a loan in the principal sum of Eighteen Thousand and no/100 Dollars ($18,000.00) to he used solely for and in the construction of a six room residence on above described property on the lands above described (sic) and the Grantee has agreed to make said loan for such purposes,. ..”
Several states have mechanic lien statutes which provide that the lien when filed becomes effective from the “commencement of the building.” See Leidigh V. Wyatt (Kan.), 109 P. 2d 87; Security v. Sellards (Kan.), 3 P. 2d 481, 76 A.L.R. 1397; Bassett v. Swarts (R.I.), 21 A. 352; Mutual Benefit v. Rowand, 26 N.J. Equity 389; and Kelly v. Rosenstock, 45 Md. 389. In the case at bar it was stipulated that the Big Rock lien was prior to the recording of the East mortgage, which stipulation is tantamount to an admission that the “commencement of such building” was prior to the filing of the East mortgage.
In Ark. Law Review, Vol. 12 p. 170, there is an article entitled: “Priority of Liens on Real Property in Arkansas: Mortgages, and Mechanics’ and Materialmen’s Liens.” In addition to the cases cited in this opinion, the following are also noted: Rust v. Kelley, 180 Ark. 517, 21 S. W. 2d 973; U. S. v. Westmoreland, 134 F. Supp. 898.
In Lyle v. Latourette, 209 Ark. 721, 192 S.W. 2d 521, we gave a brief history of the more important lien statutes. | [
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OPINION OP THE COURT. This is an appeal from the Conway circuit court. The appellant moved for a new trial, on an affidavit setting forth newly discovered evidence, and stating that the evidence was not known to his counsel on the trial of the cause. But it does not state that it was unknown to himself, which we think indispensable. Judgment affirmed. | [
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Bunn, C. J.
Appellees, the only surviving heirs at law of one J. W. Maddox, deceased, filed the complaint in this cause in the Crittenden circuit court, on the chancery side, against the appellants, the' only surviving heirs at law of one Julia A. Waldron, deceased, formerly the wife and widow of said J. W. Maddox, she having died intestate. The subject matter of the litigation is certain property of the estate of said J. W. Maddox, and, to determine the ownership of the same and for partition, the court was asked to construe the will of said J. W. Maddox. Appellants, defendants in the court below, demurred to the complaint; and, the same having fully set forth the provisions of the will and plaintiffs’ claim thereunder, the only issue in the case was properly raised by the demurrer. The chancellor overruled the demurrer, and, defendants declining to plead over, decree went against them, and they appealed to this court.
The said J. W. Maddox made the following last will and testament [leaving out all that is not essential to this discussion], to-wit: “Second. After the payment of my funeral expenses as well as my just debts, I give and bequeath to my beloved wife, Julia A. Maddox, my entire property and effects of every character and kind, both real and personal, during her natural life, to use and enjoy any and all the rents and profits of every character and kind lawfully arising therefrom. Third. It is my will that my lot, being a certain parcel or piece of ground situate, lying and being in the city of Memphis, on the south side of Market street, being a part of lot known and designated on the original plan or plat of Memphis as lot number four hundred and seventy (470), [then follows a particular description of said part of said lot, by metes and bounds] shall, at the death of my beloved wife, Julia A. Maddox, be by her, the said Julia A. Maddox, given to such of the then living children of my brother Henry S. Maddox and my sister Sophia Cole Graves as she, the said Julia A., in the exercise of her judgment, may deem best; it is my express wish that my wife, the said Julia A. Maddox, shall so dispose of this lot of ground among said children as she may desire. Fourth. It is my will that at the death of my beloved wife, Julia A. Maddox, my lot being part of lot No. 123 on Main street (west side) upon which a two-story brick house now stands, shall go and descend jointly to George R. Byrne, the youngest brother of my wife, Julia A. Maddox, and Wésly Rdmond Moore, son of George and Londora Moore, each to have and own an undivided one-half interest in the same; and in the event that either the said George R. Byrne or Wesly Rdmond Moore, or both of them, should depart this life before arriving at the age of twenty-one years, then and in that event I wish my wife, Julia A. Maddox, to dispose of the interest of the children so dying, in this property, among the living children -of my brother, Henry S. Maddox, and of my sister, Sophia Cole Graves, in such parts and portions as she may desire. ***** Fifth. The remainder of my goods, chattels and effects of every character and kind, both real and personal, I will and bequeath to my beloved wife, Julia A. Maddox, to dispose of as she may choose and desire at her death. Sixth. I do hereby appoint my brother, Henry S. Maddox, and my wife, Julia A. Maddox, my executor and executrix, to qualify without giving bond or security.”
The particular question raised by the demurrer to the complaint is, was the estate of Julia A. Maddox in the “remainder” mentioned in the fifth clause of her husband’s will an'estate in fee, or for life only?
In regard to the disposition of real estate, and of ■course of personal property, by will, no technical or particular words of conveyance are necessary, and any words denoting the-real intention of the testator will be sufficient, unless they contravene some positive and ■established rule of construction; and in this state the liberal rule in favor of wills is much emphasized by the ■statute which does away with the use of many technical words of the common law, even in conveyances by deed. We may also remark, as preliminary to this discussion, "that the case of the appellants is somewhat aided by the fact that, under our conveyance laws, prima facie ■every conveyance is to be regarded as carrying the fee, unless express words of limitation to a less estate are used.
The testator, in the second clause of his will, gave "to his wife, Julia A. Maddox, a life estate in all of his property, real and personal. The reason of this is made apparent in the clauses following. The testator ■evidently intended that his wife should enjoy the use of his entire estate during her natural life, and, being ■childless, and making certain special devises to the children of a brother and sister, he arranged that they should be postponed in enjoyment until the death of his wife. When making these special provisions for the •children of his brother and sister, it occurred to him that these special legacies would not cover or take up ■all the estate, or might not, at all events. So he makes ■a disposition of this residue, or “remainder,” as he calls it, in the fifth clause of his will. The contention of ap pellees, in effect, is that the devising words of this fifth clause amount to a reiteration of the general devise for life contained in the second clause; in so far as concerns this residue ; and that the grant of the power to dispose of it at her death is but a grant to dispose of by will; and that the disposition to take. effect only after her death is a power or privilege in addition to the devise, — a mere power of appointment; and, this being so, that it necessarily follows that the whole clause, taken together, gives the wife but a life estate in the residue. But, according to the contention of the appellant, the testator here in this fifth clause makes a new disposition of this residue part of his entire estate; that the power of disposal is not in addition to the devise of the residue, nor cumulative of it, but confers nothing upon her which she did not already have by the terms of the devise, and only emphasizes one of her rights as the devisee of the fee, — the power to dispose as such. If the doctrine of the appellees be the correct one, it may be pertinently asked, why the necessity or even propriety of this reiteration ? Why make use of any additional words or language denoting a disposition to the wife of this residue, since a life estate in it had already been given her in the second clause of the will, for it was only a part of the whole therein devised to her for life ? Why not simply have said, “This remainder or residue to be disposed of by her at her death as she may choose,” or words to that effect ?
Useless and unnecessary expressions are sometimes, employed, but expressions are not to be construed as surplusage when, by another reasonable and consistent construction, they have a use. Furthermore, if the-devising words in the fifth clause of the will enlarge or diminish the estate devised from what is devised in the preceding clauses, it follows that the two are in so far inconsistent, — at least there is a difference, — in which case the latter controls, and from it we are to gather the true intention of the testator as to the property therein disposed of. If there is any truth in this course of reasing, it follows that we are to determine what estate the wife had in the remainder of the whole estate after the special legacies, not by the language of the second clause of the will, but by that of the fifth — the clause which makes special and particular reference to this remainder. The words of devise of the remainder mentioned in the fifth clause are simple and direct, and there are none expressive of a less estate in the devisee than that of the fee. In such case, even in the case of a conveyance by deed, under the statute, the estate conveyed would be a fee simple; and the statute only, in effect, makes application to conveyances by deed, that which virtually had always been the rule in the case of wills.
It is contended, in effect, by the appellees, that the words expressive of the power of appointment in the fifth clause are themselves words of limitation upon the estate in the remainder therein devised; and this raises the real question at last.
In Benesch v. Clark, 49 Md. 497, the supreme court lays down the rule on this subject thus: (1) “That where an estate is given to a person generally or indefinitely, with power of disposition, such gift carries the entire estate; and the devisee or legatee takes, not a simple power, but the property absolutely. (2) That when the property is given to a person expressly for life, and there be annexed to such gift a power of disposition of the reversion, then the rule is different, and the first taker takes but an estate for life, with the power annexed.” The word “reversion” contained in the second rule, thus announced, is a word of the very greatest importance in its connections, in its influence upon rules of construction. It implies that the devising clause has left something to revert to the testator after the estate given to the devisee. In the case at bar, as we have seen, no words denoting a reversion to the donor appear; and hence the second rule is not apparently applicable to this case, and therefore the first rule must be. In that case, the words of devise were : “ The two houses and lots on Monument street [city of Baltimore] to be disposed with as my wife sees fit, at her decease.” And following was the general devise, to-wit: “And also I give and bequeath unto my said wife all my property, real, personal and mixed, of every description, to have and to hold for her benefit, maintenance and comfort, during life." The widow having conveyed one of the lots on Monument street, and then died without attempting to dispose of said lots by will, the administrator of the testator sold the lots as part of his estate, and the sale was approved by the orphans’ court. Thus arose the controversy as to the widow’s title. Held, that she had a life estate only in the lots. The turning point in the case was, or seems to have been, that, while the first clause gave an estate in the lots generally, the later clause expressly confined it to a life estate, and this was the controlling clause.
In Fullenwider v. Watson, 113 Ind. 18, the words of devise were “to have, use and enjoy the same as she may choose, and to dispose of the same in such manner as she may desire,” and this was coupled with a request that all the property not disposed of by the wife at her death be given to certain named grandchildren of the testator. Now, ordinarily, where the power of disposition or appointment is restricted to go to certain persons or to go in a certain channel, it is considered as a limitation upon the estate of the first, clearly indicating the intention of the testator. However, in that case, it was held that the wife took the fee.
In Jackson v. Robins, 16 Johnson (N. Y.), 588, it was said that it is laid down “as an incontrovertible rule that where an estate is given to a person generally or indefinitely, with a power of disposition, it carries a fee; and the only exception to the rule is where the testator gives to the first taker an estate for life only, by certain and express words, and annexes to it a power of disposal. In that particular and special case, the devisee for life will not take an estate in fee, notwithstanding the distinct and naked gift,of a power of disposition of the reversion.” The word “reversion” here, as was said concerning another case, denotes an intention to reserve the fee, which shall revert to the donor’s estate. In that case, the husband had devised to the wife all his real and personal estate to hold the same to her, her executors, administrators and assigns. The subsequent clause was as follows : In case'of the death of his wife, without giving, devising or bequeathing by will, or otherwise selling or assigning the estate, or any part thereof, he doth give and devise all such estate as should so remain unsold, undevised or unbequeathed, to his daughter, Katherine Duer. Held, that the wife had the fee by virtue of the devise to her, and that the subsequent restriction was void.
In the case of Grove's Estate, 58 Pa. St. 429, a testator gave to his wife as follows: “All my property and estate, real and pérsonal rights and credits, whatsoever may belong to me at the time of my decease, to be absolutely her own for and during her life, giving her full power to collect and receive all debts due me, or to become due, at her pleasure. ****** And all or any residue of my estate, over and above the special legacies hereinafter bequeathed, she may dispose of by her will. * * * * may sell the real estate or any part thereof, and execute the necessary title therefor, which shall be as good to the purchaser as if made by myself in my lifetime ; but shall always keep as much secure as will pay the legacies hereinafter bequeathed, and her estate shall be liable for the amount, to be paid.after her death.” After giving the special legacies referred to, he continues: “By this I mean that, if my wife should not have enough over the amount of the legacies to live comfortably, she may take or appropriate as much of my estate as she may, from time to time, deem necessary for her comfortable living, and in that case my legatees hereinbefore named shall be satisfied with their proportion of what may be left; or, if she should require the whole of said amount of legacies for her - comfortable living, said legatees must be satisfied without receiving any portion thereof. But she cannot by her will bequeath to others any portion or all of said amount of legacies by me herein bequeathed ; she can only use said amount of legacies, or such part thereof as she may need for her comfortable living during life.” Held (Judge Agnew delivering the opinion of the court), to be an absolute gift of all the estate, real and personal, to the wife except the special legacies, in which she had a life estate. The limitation for her life was inserted but as a means for securing the payment of the pecuniary legacies. That case, in all essential features, was very much like the case now under consideration, and the argument and reasoning of the learned judge is expressly based upon principles and ideas underlying this case in almost every particular.
In Musselman's Estate, 39 Pa. St. 469, a testator devised his real and personal property to his wife, “so long as she lives, for her maintenanceadding: “She shall have her choice to sell it or not, as she believes best for her.” And in a subsequent clause, this : “With the third part of his estate she could do and bequeath to whom she pleases.” Held, that her interest in the whole estate was a freehold for life, and in the one-third thereof absolutely. The same principle, is announced in Snyder v. Baer, 144 Pa. St. 278, and such seems to be the tenor of all the authorities we have been able to examine on the subject.
Our conclusion is that the devise of the whole estate for life, in the second clause of the will, was merely for convenience in effecting, the more readily the special legacies ; and that the meaning and extent of the disposition of the residue of the estate must be found solely in the language of the devise contained in the fifth clause of the will; and, since this language is without words expressly limiting the devise to a less estate than the fee, that the same carries the fee, and the words of disposition therein contained, to take effect after the death of the wife, are surplusage, as the owner of the fee already had the right there attempted to be conferred. Reversed, and decree for appellants with costs.
Riddick,'J., being disqualified, did not participate. | [
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BATTLE, I.
John W. Aven brought this action against the St. Bouis, Iron Mountain and Southern Railway Company to recover damages for a personal injury which he alleges was received by him through the negligent construction and maintenance of a bridge and the approaches thereto, which constituted the highway crossing of the defendant’s railway track.
In 1882 the defendant constructed a railway over a public road in St. Francis county. It erected an embankment 6 feet high, and dug a ditch on east side thereof 10 feet deep, 18 feet wide at the top, and 5 feet and 4 inches at the bottom, and thereby rendered the road impassable. In order to restore the road to use, and make a crossing for it over the railway, it made an inclined embankment to its track on the west, and placed a bridge across the ditch on the east, and approaches to the same. The bridge was 25g feet long, and from 12 to 16 feet wide. One witness said that the principal part of the flooring of the bridge was 16 feet long, and that there were two or three planks near the center 12 feet in length; and another said about one-half were 12 feet long, and the other half 16 feet, and that the short planks began about the center of the bridge, and extended to the east end of it. “The fall of the approach to the bridge was about 21 inches to 10 feet, on the west side of the bridge, the side upon which the plaintiff approached at the time” the injury was received. The incline on the west side of the embankment was very steep. There were no railings or banisters on the bridge at the time of the injury.
On the morning of the 17th of September, 1892, the plaintiff approached the bridge from the west, driving a horse and cart or buggy. What followed he relates as follows : “I drove off, and my mare trotted on up to the railroad dump, and walked on the railroad track, and just about the time the cart got in the center of the track, the horse took a scare from something, I never have known what, but she made a fearful lunge, and jumped just as far as she could, and partially fell right at the edge of the bridge ; and as she came up I made an effort to jump out of the cart, and as I did that she came up, and went right over the bridge. The shafts of my cart struck the bridge, and she jumped square down on her head, and I and the cart and all pitched right over into the ditch and struck the bottom.” The evidence shows that she jumped off about the center of the bridge. In the fall the plaintiff’s right leg was broken just above the ankle joint; both bones were broken ; one pierced through the skin at the ankle. The joint was opened ; the membranes around it were ruptured; and the synovial fluid escaped. He was confined to his bed many weeks, and suffered excruciating pain.
Plaintiff considered his mare safe; and testified that he never knew her to become frightened before she leaped from the bridge, but she was a “high-headed animal.” His wife constantly refused to cross the bridge with him, in his buggy, while driving the mare, and would get out and walk across, but she did ride over with him when he was driving another horse, which died prior to the time he purchased the mare. He further testified that he never knew that the mare was partially blind, but she had a white speck in one eye. He traded her about four weeks after he was injured, and while he was confined to the house. One witness testified that she was blind in one eye; and another that he knew that she was a “fiery and high-headed animal.” One witness testified that he asked the plaintiff, on the day of the accident, how it happened, and he replied, “I can’t tell, but she must have had a fit.”
The court instructed the jury, in part, over the objections of the defendant, as follows :
1. “The court instructs the jury that where a railroad is built across a public highway, it is the duty of the railroad company to construct and maintain proper crossings for the benefit of the traveling public ; and if, in the construction of the railway at and across the public highway, the railroad company cuts a ditch along the side of the track, and across the highway, it is its duty to construct and maintain a safe and suitable bridge across and over said ditch, so that the highway may be restored to a safe condition for travel.”
2. “If the jury find from the evidence that the defendant cut a ditch across the public highway, as alleged in the complaint, and failed and neglected to erect and maintain a safe and suitable bridge across the same, and that the failure and neglect of the defendant railroad company to construct and maintain a safe and suitable bridge across the said ditch was the proximate cause of the injury to plaintiff, then you should find for the plaintiff.”
3. - “If the jury find from the evidence that the defendant railroad company cut a ditch across the public highway, as alleged in the complaint, and that it constructed a bridge across the same', then it is a question of fact for you to determine whether or not the same was sustained and maintained in a safe and suitable manner, and whether, or not it was necessary that guard rails should have been constructed and maintained on said bridge; and if you find that it was necessary, and that the defendant failed and neglected to construct and maintain such guard rails, and that its negligence and failure in this behalf was the proximate cause of the injury and damage to plaintiff, then you .should find for the plaintiff.”
4. “If the jury find from the evidence that the construction of the said railway made it necessary for a bridge to be erected at the crossing of the railroad and public highway, in order to make this highway available to the public, the court instructs you that it was the duty of the railroad to erect and maintain such bridge so that the highway should be restored to as passable a condition, and so kept, as was consistent with the use of the railroad company, and if guard rails were required for that purpose, then it was the duty of the railroad company to place guard rails or banisters upon the bridge; and if you find that such was necessary, and that the railroad failed and neglected to provide and maintain the same, and that the absence of the said guard rails or banisters was the proximate cause of the injury to plaintiff, then you will find for the plaintiff.”
And instructed the jury as follows, at the request of the defendant:
“You are instructed, if you find from the evidence that the plaintiff’s horse had a fit upon him, and was thereby rendered uncontrollable at the time of the accident, and that without such fit, and the consequent escape from control, the accident would not have happened, you will find for the defendant.
“If the jury believe from the evidence that plaintiff’s horse was, at the time of the accident, blind, in one eye, and that this fact was known to plaintiff, and further believe from the evidence that a reasonable and prudent man would not have attempted to drive such a horse across such a bridge as this is described to be, in the manner that plaintiff attempted to drive his horse, then you are instructed that the plaintiff was guilty of negligence in so attempting to drive over said bridge, and if you find that such act on his part contributed to the injury, you will find for the defendant.”
And refused to give the following at the request of the defendant:
“(You are instructed that there is no statute in this state prescribing that bridges of the character of this one should be provided with banisters or side rails), and unless you find from the evidence that the bridge in question was constructed and maintained as to banisters and side rails in a manner different from what a reasonable and prudent man would have done under the circumstances, then you will find that there was no negligence on the part of the railway company with reference to the construction and maintenance thereof, and you will find for the defendant.” But modified it by striking out the words in brackets, and gave it as amended over the objections of the defendant.
And the defendant asked, and the court refused to give, the following:
“You are instructed that if you find from the evidence that the plaintiff’s horse became frightened, and by reason thereof plaintiff was unable to control him, and that without such fright the accident would not have happened, you will find for the defendant.”
The jury returned a verdict in favor of plaintiff for $10,000. A motion for a new trial was filed by the defendant, and was overruled by the court. Exceptions were duly saved, and the defendant appealed.
In returning a verdict in favor of the plaintiff, the jury necessarily found that the evidence was insufficient to authorize them to return a verdict in favor of the appellant under the instructions given at its request. There being evidence to sustain them in that respect, we are concluded by the verdict to that extent; and the appellee stands acquitted of contributory negligence as to this appeal.
The main questions for our consideration are presented by the instructions given and refused by the court, and they are : (1) What was the duty of appellant as to the construction of the highway crossing over its railway track ? and (2) what is its liability for the injuries received by the appellee, they being results of a leap of his horse from the bridge which (leap) was caused by fright ?
As to the duty of railroad companies, the statutes provide that whenever they shall build a railway across any public road or highway in this state, they shall so construct the'crossing, or so alter the roadbed of such public road or highway, that the approaches to the railroad bed, on either side, shall be made and kept in good repair, “at no greater elevation or depression than one perpendicular foot for every five feet of horizontal distance, such elevation or depression being caused by reason of the construction of said railroad.” Except as to the elevation or depression, the same duties rest upon them as are imposed on municipal corporations, which are bound to keep their streets in repair. In neither case is there any exact legal standard of care to be exercised in the construction or maintenance of public streets, roads, or crossings. They are only bound to use reasonable skill and diligence in constructing and maintaining in repair these highways, according to circumstances. They are not insurers of the safety of travelers, and are not bound to provide against everything that may happen on the highway, ‘‘but only for such things as ordinarily exist, or such as may be reasonably expected to occur.” Where no danger may be anticipated, on account of the peculiar location of the highway, no vigilance is required for protection against liability for injuries; but where the road, bridge, or other public highway, by reason of its proximity to or construction over excavations, declivities, streams of water, or other places of peril, is manifestly so unsafe as to imperil the life or body of the traveler, it is the duty of the corporations or persons whose duty it is to keep it in repair to do whatever is practicable and reasonable to avert the threatened danger. If rails, guards or barriers be reasonably necessary for that purpose, and practicable, it is their duty to construct and maintain them in the places needed. Ring v. City of Cohoes, 77 N. Y. 83; Plymouth Tp. v. Graver, 125 Pa. St. 24; Hey v. Philadelphia, 81 Pa. St. 44; Horstick v. Dunkle, 145 Pa. St. 220; Hunt v. Mayor, 109 N. Y. 134; Wharton on Negligence (2 ed.), secs. 103, 104; 2 Dillon on Municipal Corporations (4 ed.), secs. 1005, 1007, 1015, 1019, 1020.
Corporations bound to build, or keep in repair, highways (bridges included) are not required to construct or maintain them in such a condition “that a traveler thereon may with safety run his horse at a furious rate of speed, or drive thereon unmanageable horses, .nor are they bound to keep them in such condition that damage may not be caused thereon by horses which have escaped from the control of their driver and are running away.” Highways are not built for such purposes. They are extraordinary incidents, out of the usual course of travel, for which no provision is required to be made. But, as all horses are, more or less, prone to shy and deflect from the beaten track, all public highways should be built and maintained in such a manner as to provide for the ordinary shying or starting of horses, and consequent deviations. Where practicable, the highway should be sufficiently wide and reasonably safe for that purpose, and guard rails or barriers should be constructed and maintained where necessary to protect the traveler against injuries from accidents which may be reasonably anticipated from such shying. To this end, the corporations charged with the duty of constructing or maintaining the highway are only bound to the exercise of ordinary care and diligence. Baltimore, etc. Turnpike Co. v. Bateman, 68 Md. 389, and see other authorities above cited.
As to the limits of liability in cases where an unruly or frightened horse is one of the causes of an accident on a public highway, there is a diversity of opinion, and some difficulty. In Titus v. Northbridge, 97 Mass. 258, the court said : “When a horse, while being driven with due care upon a highway, which a town is bound to keep in repair, becomes, by reason of fright, disease, or viciousness, actually uncontrollable, so that his driver cannot stop him, or direct his course, or exercise or regain control over his movements, and in this con dition comes upon a defect in the highway, by which an injury is occasioned, the town is not liable for the injury, unless it appears that it would have occurred if the horse had not been so uncontrollable. But a horse is not to be considered uncontrollable in this sense, if he merely shies or starts or is momentarily not controlled by his driver.” Fogg v. Nahant, 98 Mass. 578; S. C. 106 Mass. 278. In Maine the courts take the same view. Aldrich v. Gorham, 77 Me. 287. “In such cases,” says Earl, J., “it is said that the conduct of the horse is the primary cause of the accident ; that there are two efficient, independent proximate causes, the primary cause being one for which the corporation is not liable, and as to which the traveler himself is in no fault, and the other being a defect in the highway; and hence, that it is impossible to determine that the accident would have happened but for the primary cause. But, within the rule laid down in those states, a horse is not to be considered uncontrollable that merely shies, or starts, or is momentarily not controlled by his driver.” Ring v. City of Cohoes, 77 N. Y. 83.
In Hinckley v. Somerset, 145 Mass. 333, 336, the following rule was approved: “When the horse shies, and comes upon something which is claimed to be a defect, and. which it is claimed the vehicle would not have come in contact with, except for the want of a suitable railing, the question for the jury is this : Can we say that, if there had been a suitable railing there, the control of the horse would have been regained by his driver, and the accident and injury would not have happened? If the plaintiff makes it appear, by a fair preponderance of all the evidence, that that was the state of things, then he cannot recover.”
In Baldwin v. Turnpike Co. 40 Conn. 238, Minor, J., said : “ The failure of a traveler to be. continually present with his team up to the time and place of injury, when that failure proceeds from some cause entirely beyond his control, and not from any negligence on his part, ought not to impose upon him the loss from such injury, particularly when the direct cause of the same is the negligence of some other party; the loss should be charged upon the party guilty of the first and only negligence with reference to the matter.” And in the same case the rule is said to be this : “If the plaintifE is in the exercise of ordinary care and prudence, and the injury is attributable to the negligence of the defendants, combined with some accidental cause, to which the plaintiff has not negligently contributed, the defendants are liable. Nor will the fact that the horse of plaintiff was uncontrolled some distance before the injury change or in any way affect the liability of the defendants.”
After stating the rule laid down in this case, the. court, in Ring v. City of Cohoes, 77 N. Y. 83, said : “This appears to us to be the reasonable rule. It exacts no duty from municipalities which has not always rested upon them. They must use proper care and vigilance to keep their streets and highways in a reasonably safe and convenient condition for travel. This is an absolute duty which they owe to all travelers ; and when that duty is not discharged, and, in consequence thereof, a traveler is injured, without any fault on his part, they incur liability. They are not bound to furnish roads upon which it will be safe for horses to run away, but they are bound to furnish reasonably safe roads ; and if they do not, and a traveler is injured by culpable defects in the road, it is no defense that his horse was at the time running away, or was beyond his control.”
The rule laid down and followed in the New York and Connecticut cases was adopted and enforced in the following and other causes: Plymouth Tp. v. Graver, 125 Pa. St. 24; Burrell Tp. v. Uncapher, 117 Pa. St. 353; Horstick v. Dunkle, 145 Pa. St. 220; Hull v. City of Kansas, 54 Mo. 598; Hunt v. Pownall, 9 Vt. 411; Baltimore, etc., Turnpike. Co. v. Bateman, 68 Md. 389; Byerly v. Anamosa, 79 Iowa, 204.
The rule maintained by the New York and Connecticut courts, it seems to us, is reasonable, and sustained by thé weight of authority. We see no good and sufficient reason for holding a municipality or corporation, which is bound to keep a highway in repair, liable for damages occasioned by a horse shying, starting or backing, and coming, or bringing a vehicle, in contact with a culpable defect in the highway, when at the time he was momentarily not controlled or uncontrollable, and that it is not liable if the horse had escaped control and was running away. In neither case is the corporation liable if it had done its duty in keeping the highway in repair, or the accident would not have happened if the rider or driver had exercised ordinary care, or would have occurred although the corporation had discharged its duties. In the former case the corporation is liable because it is its duty to use reasonable diligence to so construct and maintain the highway as to avoid accidents from the shying, starting, or backing of horses; in the latter case it should be liable, because it had not done its duty, and the accident would not have happened if it had. Palmer v. Andover, 2 Cush. 600; Houfe v. Town of Fulton, 29 Wis. 296; 2 Dillon on Municipal Corporations (4 ed.), sec. 1005., In both cases the damage was occasioned by the neglect of the corporation to discharge its duties. Why should it not be liable in the latter as in the former case ? In the latter case the running away or action of the horse was an accidental occurrence for which the rider or driver was not responsible. Ring v. City of Cohoes, 77 N. Y. 83. In both cases the action of the horse and the neglect of the corporation were proximate and efficient causes of the accident, and the injury is attributable to the latter ; and the corporation should be liable, if at all, in either, on the ground it failed to perform its duty to the injured party. Plymouth Tp. v. Graver, 125 Pa. St. 24; Ring v. City of Cohoes, supra; Shearman & Redfield on Negligence, 10; 2 Thompson on Negligence, p. 1085; 2 Dillon on Municipal Corporations, (4 ed.), sec. 1007, 1020.
Something was said in Railway Co. v. Roberts, 56 Ark. 387, which is, at least apparently, inconsistent with the view we have taken in this case. In that case the team of plaintiff’s intestate ran away and carried him, without his will, over the public highway crossing of the railway track, where he was thrown from the wagon in which he was riding, and killed by a passing train. “There was testimony that the crossing was defective; also that a wagon could have been driven over it safely at an ordinary rate of speed.” In speaking of an instruction given to the jury by the trial court, this court said : “The effect of that instruction was to direct a verdict for the plaintiff if the jury found that the injury to his intestate was caused by the defendant’s negligence, either in blowing off steam, or in failing to keep the crossing in repair. It made the defendant’s liability the same in either case ; and the plaintiff was thus allowed to recover if the jury found there was negligence as to the crossing, although they were unable to find that there was any whatever in frightening the team. But all the evidence shows that the proximate cause of the injury was the frightening of the team. Billman v. Railway Co. 76 Ind. 166. If that was due to the company's negligence, it was liable for all the consequences resulting directly from it; otherwise it was liable for none of them. The deceased was not injured in driving or attempting to drive over the crossing. He was carried there involuntarily by the frightened team, and the defendant was not responsible for his being there if its negligence was not the cause of the fright to the team. The question as to the company’s liability would not be changed if it were shown that the condition of the crossing was perfect, and that the deceased would have been carried safely over it but for a defect in the wagon. The condition of the crossing was not, therefore, material to the issue.”
Prom this it appears that the court found that “all the evidence shows that the proximate cause of the injury was the frightening of the team;”, that the deceased was carried to the crossing against his will ; that the defendant was not responsible for his being there; and hence the instruction as to the crossing was improper. It does not appear from the report of the case that there was any evidence showing that the accident was directly or indirectly occasioned through the failure of the defendant to perform its duty in keeping the crossing in repair. At all events, it does not appear that the question in the present case was much considered, if at all, in Railway Co. v. Roberts. What, therefore, was said in that case should not be controlling as to the question in this.
Were the instructions given in the case under consideration correct? The trial court told the jury that it was the duty of appellant to erect and maintain a safe and suitable bridge across and over the ditch cut by it along the side of its railway track. That is not true. The appellant did not guaranty the safety of travelers in passing over the bridge. The same duty rested upon it as upon municipal corporations bound to keep streets in repair, and it is subject to liability for a failure to perform them. It was simply bound to exercise common prudence and ordinary care and diligence in making the bridge safe.
It is true that the court instructed the jury that, unless they found from the evidence that the bridge was “constructed and maintained, as to banisters and side rails, in a manner different from what a reasonable and prudent man would have done under the circumstances,” then they should find “ that there was no negligence on the part of the railway company with reference to the construction and maintenance thereof;” but it is also true that it instructed the jury that if “ the construction of the railway made it necessary for a bridge to be erected at the crossing of the railroad and public way, in order to make this highway available to the public, then “ it was the duty of the railroad to erect and maintain such bridge so that the highway should be restored to as passable a condition, and so kept, as was consistent with the use of the railroad company, and if guard rails were required for that purpose, then it was the duty of the railroad company to place guard rails or banisters upon the bridge.” These instructions are not explanatory, but contradictory, of each other. If the latter had stopped at saying that it was the duty of the railroad company to erect and maintain a bridge in a passable condition, it would have meant that the bridge should have been placed and kept in such a condition that travelers could go over it, but it did not stop there. It meant more. It said that the bridge must be in “as passable a Condition, and so kept, as was consistent with the use of the railroad company,” implying that the bridge must be made and kept as safe as it could be consistently with the right of the company to use its railway track. If it did not mean this, why add, “ and if guard rails were required for that purpose, then it was the duty of the railroad company to place guard rails or banisters upon the bridge?” The crossing would have been passable without guard rails or banisters. Construed in the manner indicated, the jury were virtually informed by it that it was the absolute duty of the railroad company to place the guard rails upon the bridge, because they would unquestionably have added to the safety of the bridge, and would not have interfered with the use of the railway track by the appellant; and the two instructions are in conflict.
The latter instruction is objectionable for another reason. Construed in the manner indicated, it made it the duty of the jury to return a verdict in favor of the plaintiff on the conditions named therein, notwithstanding it had appeared to them that the accident would have happened if the defendant had exercised ordinary care and diligence in constructing and maintaining the bridge, and made the appellant liable when appellee was injured through no default of duty on its part.
As the judgment of the trial court will be reversed, we express no opinion as to the amount of the verdict.
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Hughes, J.,
(after stating the facts). The motion for a new trial sets out twenty grounds, but not all of these are seriously relied upon in argument here for reversal, and we will discuss such only as we understand counsel to urge here as grounds for reversal.
The application for continuance upon the ground that, at the same term of the court at which appellant was put upon his trial for the murder of Jesse Hibdon, he had been convicted of the murder of Charles Hibdon, which was calculated to prejudice him on his trial at the same term of the court for the murder of Jesse Hibdon, was denied by the court. Applications for continuance are so largely in the sound discretion of the circuit court that this court will not control it, unless there has been a flagrant abuse of the court’s discretion that amounts to a denial of justice. Thompson v. State, 26 Ark. 323; Price v. State, 57 Ark. 167. We are unable to say that there was such abuse of discretion in refusing the continuance in this case as manifestly operates as a denial of justice, and for which the judgment should be reversed. Loftin v. State, 41 Ark. 153.
The court overruled the appellant’s demurrer to the indictment, and this is urged as error. We have examined carefully the indictment, and think it sufficiently charges the crime of murder in the first degree, though not in the most artistic and approved form. It fully advises the defendant of the charge he is called upon to answer, and fulfills, in substance, the requirements of our statute in reference to the sufficiency of indictments. Section 2075 Sandels & Hill’s Digest provides : “ The indictment is sufficient if it can be understood therefrom: First. That it was found by a grand jury of a county impaneled in a court having authority to receive it, though the name of the court is not accurately stated. Second, that the offense was committed within the jurisdiction of the court, and at some time prior to the finding of the indictment. Third, that the act or omission charged as the offense is stated with such a degree of certainty as to enable the court to pronounce judgment on conviction according to the right of the case.”
Section 2076 provides: “No indictment is insufficient, nor can the trial, judgment, or other proceeding thereon be affected by any defect which does not tend to the prejudice of the substantial rights of the defendant on the merits.”
Section 2090 provides : “ The indictment must contain * * * * . second, a statement of the acts constituting the offense, in ordinary and concise language, and in such a manner as to enable a person of common understanding to know what is intended.”
Section 2074 of Sandels & Hill’s Digest provides that: “The indictment must be direct and certain as regards, first, the party charged; second, the offense charged ; third, the county in which the offense was committed ; fourth, the particular circumstances of the offense charged, where they are necessary to constitute a complete offense.”
The indictment is substantially in the form prescribed by the statute. Section 2091, Sandels & Hill’s Digest. It is substantially the very same as the indictment in the case of Dixon v. State, 29 Ark. 165. There was no error in overruling the demurrer to the indictment, and the motion in arrest of judgment, they being in substance the same.
The court overruled the defendant’s application for a special judge to try the cause, and this is assigned as error, Section 20 of article 7 of the constitution provides that: “No judge or justice shall preside in the trial of any cause in the event of which he may be interested, or where either of the parties shall be connected with him by consanguinity or affinity, within such degree as may be prescribed by law ; or in which he may have been of counsel or have presided in any inferior court.” None of the matters mentioned in this provision as disqualifying a judge to preside in a cause are alleged in the application of appellant, which was based upon the ground, first, that the regular judge was a material witness in the cause, to which the attorney for the state responded that the judge knew no material facts in the case, and that he had no intention to use him as a wdtness. The judge himself in passing upon the motion stated that he knew no material facts in the case. He did not testify in the case. The second ground of the motion was that the judge was so prejudiced against the defendant that said defendant could not obtain a fair and impartial trial before said judge. In passing upon the last ground of the motion, the judge stated that he had a fixed opinion as to the guilt or innocence of the defendant, but that it was not true that he was prejudiced against him. There is no provision of our constitution or statutes that disqualifies a judge for prejudice. If having formed an opinion as to the guilt or innocence of a defendant on'trial in a criminal case was a disqualification of a judge presiding at the trial, it would often be a difficult matter to find a judge that would not be disqualified.
In the case of the State v. Flynn, 31 Ark. 35, 39, Judge English, delivering the opinion of the court, said: “Where a circuit judge labors under none of the causes of disqualification prescribed by the constitution, he has the right to preside, and is bound by his official oath, and by honor, to decide impar tially, regardless of his social relation to parties,” etc. In that case an affidavit was filed stating that “the defendant, Frank Flynn, who is indicted for murder, states on oath that he verily believes that his honor, J. M. Smith, judge of this court, will not give the said defendant a fair and impartial trial.” Upon this the venue was changed from Garland to Pulaski county. In the Pulaski circuit court the prosecuting attorney moved that the cause be stricken from the docket for want of jurisdiction, and remanded to the Garland circuit court, which motion was overruled, and the state appealed. The supreme court reversed the judgment, with directions that the cause be remanded to the Garland circuit court, and there proceed according to law.
It is the province of the jury solely to determine the facts of the case, and of the judge to determine questions of law that arise in the case. If he err, his judgment may be reversed on appeal. It is not to be supposed that the judge will exhibit partisan feeling or prejudice in the trial of a cause, which would be indecorous and reprehensible, and bring into contempt the administration of justice. McCauley v. Weller, 12 Cal. 523. The court did not err in overruling the application for a special judge.
It is insisted upon as error that the court sustained a demurrer to the appellant’s plea of former conviction. The plea is as follows :
State of Arkansas
v.
Jesse H. Jones.
‘ ‘ In the Franklin Circuit Court
For Ozark District,
February Term, 1895.
Comes the defendant, Jesse H. Jones, in person and by his counsel, and says that he was on the 2d day of March, 1895, in this court convicted of this identical offense by a jury previously empaneled to try him upon the same, and that the verdict in that case still stands undisturbed against defendant. See copy of indictment and record to this date in No. 57 hereto attached, and marked exhibit ‘A.’ And defendant says that the testimony in the case in which he, defendant, has as aforesaid been convicted is precisely the same throughout as in this case, and defendant says that the same facts, circumstances and matters urged against the defendant in the former trial will in every respect be the same facts, circumstances and matters that will be urged against him, the defendant, upon this trial.
Whereupon defendant in person and by his counsel alleges that for the above and foregoing reasons this prosecution ought to abate and cease, and ought not to be further urged against this defendant.
Robt. J. White,
E. Hiner,
Evans & Cockran,
Miees & Miees.”
This plea fails to state that by the same act and volition both Charles and Jesse Hibdon were killed, and the exhibit to the plea, i. c., the indictment against appellant for the murder of Charles Hibdon, and upon which appellant had been convicted of murder in the first degree, before he was tried in this case for the murder of Jesse Hibdon, at or about the same time he is charged to have murdered Charles Hibdon, shows that the parties charged to have been murdered were not the same in both cases.
In the case of People v. Majors, 65 Cal. 138 to 150, it is held, in an opinion reviewing the cases upon the question delivered by Morrison, C. J., that the murder of two persons by the same act constitutes two offenses for each of which a separate prosecution will lie, and a conviction or acquittal in one case does not bar a prosecution in the other. In that opinion the court quoted the following passage from the opinion in Clem v. State, 42 Ind. 420, to-wit: “It does not follow because one of the indictments was for the murder of Nancy Jane Young and the other for the murder of Jacob Young, that the crime is not the same.” And the court admitted that this was an authority in favor of defendant, if the death of the two persons murdered resulted from one and the same act.
In the case of the State v. Elder, 65 Ind. 282, the rule on this question is stated as follows: “When the same facts constitute two or more offenses, wherein the lessor offense is not necessarily included in the greater, and when the facts necessary to convict in the second prosecution would not necessarily have convicted in the first, then the first prosecution will not be a bar to the second, although the offenses were both committed at the same time and by the same act.”
In the State v. Hattabaugh, 66 Ind., 223, the court said: “The usual test by which to determine whether the former conviction or acquittal was for the same offense, as that charged in the second prosecution, and therefore whether the former is a bar to the latter, is to inquire, whether the evidence necessary to sustain the latter would have justified a conviction in the former case.” The California court, in People v. Majors, say: “Testing the case of Clem v. State, supra, by the rule laid down in the latter cases referred to (65 and 66 Ind.), it would be difficult to sustain the authority of the former.”
Jones, the appellant, on an indictment for the murder of Jesse Hibdon, could not be convicted for the murder of Charles Hibdon, nor vice versa. In the case of Teat v. State, 53 Miss. 439, the court said : “ A putting in'jeopardy for one act is no bar to a prosecution for a separate and distinct act, merely because they are so closely connected in point of time, that it is impossible to separate the evidence relating to them on the trial for one of them first had.” And the court expressed the belief that no well considered case could be found, “where a putting in jeopardy for one act was held to bar a prosecution for another separate and distinct one, because they were so closely connected in point of time, that it was impossible to separate the evidence relating to them.”
Many other cases are cited to support the judgment of the court on this point. It is said by some authorities, that where the same act and volition results in the death of two persons, there is but one offense. We do not understand that the plea in this case states that Charles and Jesse Hibdon were killed by one and the same act. The fact that the act of killing Jesse Hibdon, and the act of killing Chas. Hibdon were so closely connected in point of • time, that it was impossible to separate the evidence relating to each of them, would not necessarily make the killing of the two one act, or one offense.
Section 2148 of Sandels & Hill’s Digest provides, that: “Neither a joinder in demurrer nor a reply to the plea of former acquittal or conviction shall be necessary, but the demurrer shall be heard and decided, and the plea shall be considered as controverted by denial, and by any matter of avoidance, that may be shown in evidence.” It does not appear that any evidence was heard in determining the demurrer to the plea, and we presume that only the plea and the exhibit thereto (the indictment against Charles Hibdon) were considered by the court.
We think there was no error in sustaining the demurrer to the plea.
The court on two different occasions refused the request of the appellant not to hold a night session of court for the reason that Oscar D. Miles, his leading counsel, was sick and unable to attend at such night session. This is assigned as error. It appears from the transcript that at these night sessions the defend-, ant was ably represented by Mr. Hiner, Mr. White, Jas.; Cockran and A. F. Miles — all competent counsel. It therefore does not appear that the appellant was prejudiced by the refusal of his request. Such motions are. addressed largely to the sound discretion of the court, and, unless there is abuse of that discretion, this court will not interfere. Edmonds v. State, 34 Ark. 725; State v. Dusenberry, 112 Mo. 289.
It is assigned as error that the court gave to the-jury instructions numbered 1, 2, 3, 4, 5, 6, 7, 8 and 9, and that 4 and 9 particularly are erroneous. . For. error adjudged to exist in the latter part of instruction 4,. as given on the trial of appellant for the murder of Charles Hibdon, the judgment in that case was reversed. Jones v. State, 59 Ark. 417. The instruction as given in this case, however, is not obnoxious to the error for .which it was held bad in the other case. In the case in 59 Ark. it read thus: “The false, improbable and contradictory statements, of the accused, if made, in explaining suspicious circumstances against him, are evidence to be considered by the jury,” etc. As given in this case it reads : “If you find from the evidence that the defendant has made any false, improbable and contradictory statements explaining suspicious circumstances against him, then this may be considered by you,” etc. The first is obnoxious to the objection that it assumes facts, the other does not, but leaves it to the. jury to determine upon the evidence whether they exist or not. It seems that there is a material difference, between them. We find no reversible error in this instruction as given in this case.
Instruction numbered nine is as follows: “The court instructs the jury that, under the law, the defendant, Jesse Jones, has the right to testify in hisJ own behalf; blit his credibility, and the weight to be given to his testimony, are matters exclusively for the jury. In weighing the testimony of the defendant in this case, you have a right to take into consideration his manner of testifying, the reasonableness or unreasonableness of his account of transactions, and his interest in the result of your verdict, as affecting his credibility. You are not required to receive blindly the testimony of the accused as true; but you are to consider whether it is true, and made in good faith, or only for the purpose of avoiding conviction.”
Number 10 is as follows : “The court tells the jury that nowhere in these instructions does the court mean that you are to disregard the testimony given by any witness in this case. That is a matter solely with the jury, and it is not within the province of the court to tell the jury what weight you should give to the testimony of any witness.”
The ninth instruction given in this case is an exact copy of the one given in the case of Vaughan v. State, 58 Ark. 362, which was approved by the court.
Following Vaughan v. State, supra, and the many cases cited to support it, we find no error in instruction numbered nine. We find no reversible error in the instructions, taken together, as given by the court.
The instruction asked by the defendant and refused by the court is as follows : “If the jury find that this is a case dependant entirely upon circumstantial testimony, then the coúrt charges you that, before the defendant can be convicted, you must find that the circumstances proved establish the guilt of the defendant to the exclusion of every other reasonable hypothesis ; and if you do not so find, it is your duty to acquit the defendant.” It appears from instruction numbered three, given by the court, that the court said to the jury: “ This is a case of circumstantial evidence, and if it satisfies the minds of the jury beyond a reasonable doubt, they should convict, the same as they would upon direct evidence, which satisfies them beyond a reasonable doubt.” The instruction numbered six, given by the court, is as follows: “The burden is upon the state to prove to the satisfaction of the jury beyond a reasonable doubt every material allegation in the indictment, and unless that has been done, the jury should find the defendant not guilty.” In the case of Green v. State, 38 Ark. 316, the appellant asked the following instruction, which was refused, to-wit: “That incases of circumstantial evidence, before the jury can convict, the guilt of the defendant should be made out, not only beyond a reasonable doubt, but to the exclusion of every other reasonable hypothesis.” In delivering the opinion of the court, Chief Justice English said: “It was putting it very strong to require the state not only to prove the guilt of the accused beyond a reasonable doubt, but to go further and prove it to the exclusion of every other reasonable hypothesis. Either would be sufficient.” There was no error in refusing the instruction asked by the appellant.
Finding no substantial error in the other matters assigned for reversal, we pass them without comment.
Lastly, it is objected that the verdict of the jury is not supported by sufficient evidence. It is possible that a defendant might be the victim of such a remarkable concatenation of circumstances, as exist and were proved in this case, and be innocent, but it is not at all probable. The evidence was amply sufficient to warrant the verdict of guilty of murder in the first degree, as found by the jury.
The judgment is affirmed. | [
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Bunn, C. J.
The town council of Brinkley resolved, in the regular way, by a yea and nay vote, and by a majority of all the members elected to the council, to lay sewer piping along its streets for the purpose of drainage. Subsequently, it resolved to lay this piping along certain streets and certain blocks, presumably as an installment of the general work. This resolution does not seem to have been adopted by a majority of all the members elected to the council, nor by a yea and nay vote. The mayor, however, as authorized by the last named resolution, proceeded to advertise for bids to furnish the piping or tiling necessary to accomplish the object in hand; and, receiving no bids from any one, a number of citizens interested appealed to the council to purchase the necessary tiling and have the work done at once. At this juncture, the appellant, who was an alderman and chairman of the council improvement committee, and who was a dealer in tiling, but who seems not to have taken any part in the council’s proceedings, offered to sell the necessary porous tiling, at the rate of $1.10 per foot, worth, as he afterwards testified, 95 cents per foot actual value, at that place. Under the circumstances the mayor accepted this offer, and the appellant laid the tiling, and made the openings and connections, and made no charge for his labor in the matter. The evidence is to the effect, that the kind of tiling thus sold to the town was worth 95 cents, actual value delivered at Brinkley, and $1.10 mercantile value, for this tiling the town council ratified the payment of the sum of $840 to appellant, being according to the price per foot agreed upon as aforesaid, by approving the account of the treasurer to that effect.
Subsequently, after a change in the composition of the council had been made, the town instituted this action against appellant to recover back the whole amount thus paid him, on the ground that the purchase was made without authority on the part of the town, and because appellant, as a member of the council and chairman of its improvement committee, could not contract with the town.
The evidence adduced to show that the price given for the tiling was excessive seems to have had reference altogether to a different class of tiling, and therefore was not contradictory of appellant’s testimony as to the value of the tiling actually sold and laid. Some effort was made to show that the piping, as laid, did not properly answer the ends designed, but the testimony as to that is not satisfactory enough to be seriously considered in determining the particular issue made in this proceeding.
The court below made three declarations of law bearing on the subject, as follows, to-wit: (1) “ That in all contracts for payment of money, votes must be taken by yeas and nays, and that a member of council cannot make a contract with town and share in the profits. (2) That a town may ratify the act of its agent by accepting property purchased, if the corporation has the power to make the contract. (3) That a town has the right to contract to drain its streets.” With proper explanations, there does not seem to be any substantial error in these declarations of law.
As to the first, the last clause of section 5166, Sandels & Hill’s Digest reads as follows : “Nor shall any alderman or member (of council) be interested, directly or indirectly, in the profits of any contract or job for work or services to be performed for the corporation.” Presumably, this declaration of law was based upon this clause of the statute. If so, it is not certain that it was not erroneous, for the sale made by the appellant to the town, is not necessarily or even reasonably to be considered a “contract, or job for work or services to be performed,” as is contemplated by the statute. In enacting this clause, the legislature evidently had in mind an abuse that had grown up, whereby public officials became the recipients of the unusually large profits, made on public contracts for work and services to be performed as a fulfillment of the contracts. Sales were not generally the subject of such abuses, for unfairness of price, as well as inferiority of quality, are of too easy detection to encourage such. But since, by the common law, a trustee or agent is not permitted to enjoy profits which rightfully belong to his cestui qui trust or principal, the court’s declaration of law, looking at it from that standpoint, may not be materially wrong.
There is no serious objection to the second declaration, except that ratification, as a principle, may not be exactly applicable to the case in hand, because, generally speaking, ratification of a contract must be after the same formalities as are requisite in making it in the first instance. Another doctrine may, however, cure any defects of this declaration in this regard.
The third declaration is indisputably correct, for to deny a town the right or power to drain its streets would be to denude it of the very privilege of decent existence.
Upon these declarations of law, and the testimony, the court below refused to adjudge a repayment of the actual value of the piping, but rendered judgment against defendant, Brick, for what it found to be the profits, to-wit: the sum' of $219.50. We do not think the evidence supports the findings of the court as to the amount of the profits. The piping was shown to be of the actual value of 95 cents per foot, and the fair selling price of $1.10. The difference, 15 cents per foot, therefore, represents the profit, and for the 784 feet the sum of $117.60.
It may be conceded that, while the council had power to purchase the piping, its method of making or authorizing the contract of purchase was irregular, and not in accordance with a statute which is mandatory on the subject. We need not discuss the question as if the town was without power to purchase and lay the tiling, or inquire what would be the consequences to appellant, were there no such power in the town.
Our concern now is to determine what must be the consequences to the parties in the case as made and presented to us; that is, where there is a failure to comply with the forms of law in an attempt to exercise a power which the town possessed. In other words, where the contract made is not void in the strict sense, but only voidable, and where it has been fully executed by both parties, and the object .of the litigation, is, in effect, to annul and rescind it.
In Town of Searcy v. Yarnell, 47 Ark. 269, a similar question, in many of its aspects, was presented and determined by this court. There the town of Searcy, a stockholder and principal owner of the stock in a corporation owning and operating a horse car wooden tramway connecting that town with the Iron Mountain railroad, three or four miles in length, sold the same to the two Yarn ell brothers, one of whom was, at the time the sale to them was first suggested, a member of the town council, but who resigned immediately, presumably that he might be free to consummate the purchase with his brother from the town. No question of profits arose in that case, except, perhaps, by inference, and no such question was discussed, for the very good reason, doubtless, that whatever profits there might have been in the transaction were the direct and legitimate results of the" expenditure of money and labor and exercise of intelligent foresight and management of the Yarnells subsequently to the purchase and delivery of possession to them, and in no true sense belonged to the town. In that case, the sale having been shown to be fair to the town, the Yarnells having shown that they had fully and honestly complied with their part of the contract, and it appearing that a restoration was impossible, at least impracticable, and the whole matter executed, the court declined to interfere when such interference could have done nothing more than to commit a great injustice and that too for the sole and only purpose of asserting and putting in force a mere technical rule. In that case the private persons were the purchasers from the town, and the question of ultra vires could only arise on the proposition of the right of the town council to sell, not to buy. Otherwise that case and this one are not materially different.
It appears to us that the sale of the piping in this case was fair as to price and quality, that there was at leagt an urgent demand for the improvement to be made at the time, that it fairly answered the ends designed, and that the town is still enjoying its use and benefits; and, therefore, we think it cannot, in good conscience, be allowed to receive the value back, while at the same time it is enjoying the benefits of its purchase, — at all events, when it does not even offer to restore that which it claims could not have been its property, and consequently is not now its own.
This is not the assertion of any right which the ■appellant has, nor any obligation resting upon the appellee, under the contract of purchase, but it is a rule of justice and right growing out of an implied contract and obligation of every one, whether natural or artificial person, to restore to another that which belongs to him, and that is in the possession of the former or in his power to restore ; and when the power to restore does not exist, or when - the restoration, in the nature of things, becomes impracticable, then to be precluded from recovering back the fair price paid. Beach, Pub. Corp. sec. 217. In such cases as this, the sole duty of the courts seems to be to see that the public corporation suffers no material loss nor injustice, but further than this they could but inflict burdens upon others more or less disastrous, where no resulting good can follow — a thing courts of justice ought not to .indulge in.
As to the common law rule that an agent ought not to take unto himself the profits of a contract or transaction which properly belongs to his principal, while, by a strained construction, it may be made to apply to this case, yet we cannot see that the town has lost anything, whatever by making the purchase from appellant, or that it could have got the same class of piping elsewhere,' or from any one else, at a less cost. He seems to have acted in good faith, and it does not appear that he can be placed in statu quo, or that it is the intention of the town to attempt i:t. Under the circumstances, any judgment against him would be in the nature of a penalty for a seeming breach of his relationship to the town. Such a penalty might be inflicted in a proper case, but not upon one who has acted in good faith.
We make no ruling as to what might be the judgment here, were this contract executory; but, as it has been fully executed, and its annulment is now all that is called for, we simply hold that we cannot grant the relief sought, except on the principles of right and justice, and these are not with the plaintiff in this case.
The judgment is reversed, and judgment will be entered here for appellant. | [
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Riddick, J.,
(after stating the facts.) The first\ question presented is whether, in a case, where there has been a trial and judgment at law, and the right of appeal has been cut off by the death of the presiding judge before signing the bill of exceptions, a court of equity has power to grant relief against such a judgment, however unjust and oppressive it may be. The practice in such cases is not uniform in the different states of the Union. In some of them it seems to be held that there is no relief. Davis v. President of Menasha Village, 20 Wis. 42. In other states, .the appellate courts grant a new trial as a matter of right, without regard to the merits of the controversy, where a party has, by the death of the presiding judge, lost the power^/ to file a bill of exceptions. State v. Weiskittle, 61 Md. 49; Wright v. Judge of Superior Court, 41 Mich. 726; Commissioners v. Steamship Co. 98 N. C. 163. The exact point has never been before this court, though in one case it was said that, “courts of chan eery are competent to relieve against any hardships arising from accident, or mistake, or fraud, if from any such cause the bill could not be presented in the time allowed.” Carroll v. Pryor, 38 Ark. 283. And the power of courts of equity to grant relief against fraud, accident or mistake has always been recognized. In the case of Leigh v. Armor, 35 Ark. 123, the court said: “It is well settled that when a judgment is obtained in a court of law by fraud, accident or mistake, unmixed with negligence on the part of the party against whom it is rendered, a court of equity has jurisdiction, on a showing of a meritorious defense or cause of action, to compel the party obtaining the judgment to submit to a new trial. But it is agreed that this power should be exercised with great caution, and the application of the' doctrine is generally restricted, and is confined to cases which present peculiar circumstances, under the maxim that there must be an end of litigation.” In that case it was held that when a judge of the circuit court was prevented by sudden sickness from disposing of a motion for new trial during the term at which the judgment was rendered, the party filing the motion might, upon showing that he has a meritorious defense or cause of action, and that he has been guilty of no negligence, obtain relief in a court of equity. The reason given was that the party had no remedy at law. The doctrine of this case has been several times approved. Vallentine v. Holland, 40 Ark. 338; Harkey v. Tillman, Ib. 551; Johnson v. Branch, 48 Ark. 535; State v. Hill, 50 Ark. 458; Whitehill v. Butler, 51 Ark. 341; Jackson v. Woodruff, 57 Ark. 599.
The circuit court in Leigh v. Armor had not passed upon the motion for a new trial. In this case the motion for a new trial was presented to and determined by the circuit court, and the party lost his right of appeal by the death of the circuit judge before signing the bill of exceptions. But, while the facts are different, the principle seems to us the same, and, after considering the matter, we have concluded that when a party who is himself free from fault, and against whom an unjust and inequitable judgment has been rendered, has lost his right of appeal by unavoidable accident; a court of equity in this state has the power to grant relief. Carroll v. Pryor, 38 Ark. 283; Oliver v. Pray, 19 Am. Dec. 595, and note ; Black on Judg. 1 vol. 356; Freeman on Judg. 2 vol. 484-485. While the enlarged powers of law courts, under modern procedure, to grant new trials after the expiration of the term has dispensed with the frequent exercise of this ancient jurisdiction of courts of equity, yet in this state it still exists, to be used in peculiar cases where the party is without remedy at law. Leigh v. Armor, 35 Ark. 126; Jacks v. Adair, 33 Ark. 161.
In assuming jurisdiction in such cases, courts of equity do not undertake to exercise supervisory or appellate power over the circuit courts. They have no right to interfere in any way with the judgments or other proceedings of a court at law. They assume only the right to act upon the parties to the suits a,t law. Pelham v. Moreland, 11 Ark. 442; Yancey v. Downer, 15 Am. Dec. 38; Pomeroy’s Equity, vol. 3, sec. 136 ; Black on Judgments, 1 vol. 356.
When a case of hardship in the judgment of a court at law is alleged, against which the party has lost his remedy at law by unavoidable accident, fraud, or mistake, a court of equity, though proceeding with great caution, will inquire into the facts, and, if deemed proper, will compel the successful party to submit to a new trial at law, or, in default thereof, will restrain him by. injunction. But, as has been frequently said, a court of equity will not interfere in such cases, unless “justice imperatively demands it.” “It must clearly appear that it would be contrary to equity and good conscience to allow the judgment to be enforced, else it declines to impose terms upon the prevailing party.” Whitehill v. Butler, 51 Ark. 343; Johnson v. Brande, 48 Ark. 535; Jackson v. Woodruff, 57 ib. 599.
We will now consider whether the case made here ' is one calling for the interference of a court of equity. John Franklin, an employee of the appellants, while working in their yards at Van Burén, was struck and killed by an engine owned by them and operated by their employees. H. B. Fitzhugh, the administrator of his estate, brought suit against appellants, alleging that the death of Franklin was occasioned by the negligence of appellants' and their employees while operating said engine. The answer of appellants denied negligence, and set up contributory negligence, and, further, that the injury was occasioned by the act. of a fellow servant, for which they were not liable. The evidence at the trial showed that Franklin, at the time of the injury, was working in the yards of appellants at Van Burén. He was clearing under a switch rod, stooping over at his work, with his back towards a switch engine, which was approaching along the same track upon which he was working. Within eight or ten feet of him, on a different track, was another engine which, to use the language of the witness, was “popping off steam.” The noise of this escaping steam deadened the sound made by the approaching switch engine. The testimony of several witnesses show that Franklin’s position and actions indicated that he was unaware of the approach of the switch engine and of the danger that threatened him. So apparent was his danger, and the fact that he was ignorant of it, that several of these witnesses hallooed at him, but the noise of the steam from the other engine was so great that he did not hear. Both the en gineer and fireman in charge of the switch engine testify that they saw Franklin as they approached the place where he was working. The engine was backing, but it had no cars attached, and the tank was wedge shaped, and offered no obstruction to the sight of the engineer until he came within a few feet of Franklin. He was in plain view for some distance before they reached him. They noticed that he was stooping over at work, his back to the engine, apparently unaware of its approach. When about forty yards from him, the fireman hallooed at him, and again endeavored to attract his attention when he was within twenty-five or thirty steps of him. The fireman testified that he did not signal the engineer, because the engineer saw Franklin as well as he did. Before reaching Franklin, the engineer applied the air brakes, and checked the speed of the engine, but when within seven or eight feet of him he released the brakes, and the engine rolled on, and Franklin was struck and killed. The engineer says that he saw Franklin step off the track before he released the brakes, but in this he is plainly mistaken. Franklin became aware of the approach of the engine, and endeavored to escape, but the engine struck either his leg or the handle of his shovel, and be was thrown on the track and killed. There was also evidence tending to show that no sufficient effort was made to stop the engine, and that the engineer was guilty of carelessness.
But it is said that Franklin was himself guilty of negligence. This may be true, yet the finding of the jury is justified on the ground that the employees of defendants in charge of the engine became aware of his danger in time to have avoided the injury by the use of ordinary care. It is well established that when a defendant, after having become aware of the plaintiff’s negligence, and the danger to which it exposes him, fails to exercise ordinary care in avoiding it, he is liable for the injury. St. L. I. M. & So. Ry. v. Wilkerson, 46 Ark. 523; St. L. I. M. & So. Ry. Co. v. Monday, 49 ib. 263; Whittaker’s Smith on Neg. 375; Thompson on Neg. 2 vol. 1157 ; Wharton on Neg. secs. 334 and 335 ; Sherman & Redfield on Neg. sec. 493.
It is further said that if the engineer was guilty of negligence causing the injury, it was the act of a fellow servant, for which defendants are not liable. But the evidence shows that on the trial at law the defendants expressly admitted that the deceased, John Franklin, and the engineer were not fellow servants. The bill of exceptions, which was agreed to be correct, and introduced as evidence by appellant, after setting out the evidence introduced by the plaintiff, proceeds as follows: “Defendants here admitted that the deceased, John Franklin, and the engineer and fireman were not fellow servants( and told plaintiff that they so admitted to the jury. The plaintiff then rested.” This is what is called in the books a “solemn admission,” made in the course of a judicial proceeding for the purpose of dispensing with evidence or argument touching the matter admitted. Having solemnly admitted on the trial that the deceased John Franklin and the engineer and fireman were not fellow servants, the defendant cannot now dispute it, or assume a position inconsistent with the admission. If the circuit court committed an error on that point, it was one invited by the defendants, and of which they cannot complain. 1 Greenleaf on Fv. 186; 1 Taylor on Fv. 676; Elliott’s Appellate Pro. sec. 630.
Our conclusion is that the facts of this case are not sufficient to warrant the interference of a court of equity, and the decree of the chancellor dismissing the complaint for the want of equity is affirmed. | [
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Bunn, C. J.
This is an action determined in the Bogan circuit court, in chancery, wherein the appellant, as plaintiff in the court below, filed his bill to foreclose a mortgage of record, on the failure of the mortgagor to pay off two detached interest coupons; the principal bond and other coupons being outstanding and in the hands of other parties referred to in the complaint. The mortgage, bond and coupons, are dated 1st January, 1889, and the mortgage was acknowledged 11th of January, 1889, and subsequently recorded. The mortgagor, Thomas . C. Scarbrough, and his wife, Nannie I/. Scarbrough, subsequently to the execution of said mortgage or deed of trust, on the 17th day of November, 1890, made their deed to defendant Leroy Hick-son, conveying to him the lands conveyed in said mortgage. The mortgagees were not made parties, but Samuel M. Jarvis, the trustee holding the legal title, was made a party, and answered, and one of the contentions of plaintiff is that all parties in interest should have been brought in; otherwise the chancellor should not have rendered a decree cancelling the deed of trust, as he did, and thus the only decree he could have rendered would be to the effect that the complaint be dismissed for want of equity.
The principal question in the case, and the only one apparently considered, grows out of the allegation in the answer of Hickson and wife, that the deed of trust is invalid for the reason that, at the time of its execution, the lands conveyed therein constituted the homestead of Scarbrough and wife, — the wife not having joined in the conveyance of the homestead under the act of the general assembly, approved March 18th, 1887 (the deed of trust and certificate of acknowledgment in fact showing only that the wife had relinquished her right of dower), — and that Hickson had purchased from them, and held under a deed executed in accordance with the act referred to, and therefore, having vested rights, was not affected by the curative act of April 13th, 1893, as construed by this court in Sidway v. Lawson, 58 Ark. 124. The argument is not thus made, for defendants file no brief, but we take it that such is the theory of Hickson’s contention.
If it be true that the grantors in the deed of trust occupied the lands as a homesteád at the time of the execution of the deed of trust, or at the time when the same took effect as a conveyance, if otherwise valid, and assuming that the act of 18th March, 1887, was a valid act, and that the deed to Hickson was a valid deed under that and the curative act mentioned, it follows that the decree against plaintiff is proper.
But the question really is, does the record and the proof show -that Scarbrough occupied the lands as a homestead, or even owned the same at the time he conveyed the same in said deed of trust? It is alleged, in the answer of Hickson and wife, that Scarbrough was the owner of, and occupied the lands on the 1st January, 1889, the date of the deed of trust, as well, as on the 11th January, 1889, the date of the acknowledgment of the execution of the same. The reply of plaintiff puts in issue all these allegations of the answer, and the only evidence adduced in the case was by the defendant Hickson, in the deposition of J. R. Scarbrough, a brother of S. C. Scarbrough ; and he testifies that his brother was the owner of and occupied the lands as a homestead on the 11th day of January, 1889, the.date of the acknowledgment of the deed of trust. There is no proof that he was the owner of the homestead prior to that date. We are thus left to determine at what date the deed of trust took effect as a conveyance to the trustee, by the rules of construction which the courts have applied in such cases.
In Welch v. Fowler, 14 Ark. 29, and Wheeler v. Single, 62 Wis. 380 (cited by appellant’s counsel), it is. held that the date of the deed is prima facie proof of the execution of the same at that time.
It is further said in Scobey v. Walker, 15 N. E. Rep. 674, Sweetser v. Lowell, 33 Me. 446, Jayne v. Gregg, 42 Ill. 413, Ford v. Gregory, 10 B. Mon. 175, also cited by appellant’s counsel, that the acknowledgment is prima facie evidence of delivery on the day of the date of the deed, at least of some date prior to the date of the acknowledgment.
“The rule is well established that, where a document purporting to be a duly acknowledged deed, with regular evidence of its execution upon its face, is found in the hands of the grantee, or if such deed is found upon the proper records, a presumption arises that it was delivered at the time it bears date, or at some time prior to the date of its acknowledgement.” Scobey v. Walker, supra; Vaughan v. Godman, 94 Ind. 191; Wheeler v. Single, supra; Wallace v. Berdell, 97 N. Y. 13; People v. Snyder, 41 N. Y. 397; Trustees v. McKechnie, 90 N. Y. 618; McCurdy's Appeal, 65 Penn. St. 290.
We have been unable to find any case wherein a different doctrine is announced. It would seem, according to the usual custom of dealing in such matters, that, as the acknowledgment is the act of a grantor which fits the instrument for record, this would naturally precede the delivery, ordinarily looked upon as the grantor’s last act in respect to the deed, but it is agreed, in the cases which have become authorities on the subject, that there is no necessary inference that the act of acknowledging precedes the act of delivery, but rather that the contrary is true.
The decree of the court below canceling the deed of trust was erroneous, for the foregoing reason.
Decree reversed, and cause remanded for further proceedings in accordance herewith.
Battue, J., absent. | [
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Wood, J.,
(after stating the facts.) The statute does not place owners of the animals named beyond the protection of that universal rule which exempts men from liability for inevitable accidents. This is plain when all the provisions of the section quoted are considered together. It is not to be supposed that the legislature demanded an impossibility, and imposed a penalty for inability to avoid the inevitable. No human prescience could forestall the various contingencies of escape to which such animals are liable. Yet if the unfortunate owner is to be held responsible at all hazards, the anomalous result would be to inflict upon him a penalty for something which might be impossible for him to avoid.
The ownership of the animals named is not forbidden, but expressly recognized, and the imposition of such burdens as would tend directly or indirectly to prevent or discourage the ownership and use of such animals was never contemplated. By the somewhat rigorous results to follow to the owner in case of his failure to use proper care in restraining the animals designated, the legislature evidently only designed to enforce upon him the strict observance of that ancient maxim, ‘ ‘Sic utere iuo ut alienum non laedas.” What degree of care is required? Only that which a prudent man under similar circumstances would exercise to prevent animals of the kind mentioned from running at large, taking into consideration their natural habits and propensities. It is the intentional or negligent permission of the owner for his animal to run at large, which subjects him to the civil and penal consequences prescribed by the statute. Whether the owner has exercised such care as the law requires, if the facts are-disputed, is a question for the jury. The following authorities are cited to support the' views we have expressed. Bish. Non-Cont. Law, sec. 1220 et seq.; Wolf v. Nicholson, 27 N. R. 505; McBride v. Hicklin, 124 Ind. 499; Rutter v. Henry, 46 Ohio St. 272; Leavenworth, etc., R. Co. v. Forbes, 37 Kas. 448; Fallon v. O'Brien, 12 R. I. 518 ; Presnall v. Raley, 27 S. W. 200; Klenberg v. Russell, 25 N. E. 596; McIlvaine v. Lantz, 100 Penn. St. 586,—all cited by appellee’s counsel.
Counsel for appellant has called our attention to statutes and decisions of other states in which the owner of dogs are made liable absolutely for damages done by them. The status of the dog before the law is sui generis. Bish. Non-Cont. Law, sec. 1233. The vicious dog in general, and the odious sheep killer in particular (to which several of the cases cited refer), are under the-law’s especial condemnation. Without entering upon a. discussion of the reasons therefor, it suffices to say that, no legislation or decision with reference to injuries by-dogs do we regard as analogous to that of the other purely domestic animals of the kind enumerated in our statute.
The instructions of the trial court were in accord with this opinion, and there was no error in its ruling admitting certain testimony to which objection was made. Its judgment is therefore affirmed. | [
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BaTTeE, J.
Houston Raley and Barry Shaeffer were jointly indicted for burglary. They were charged with breaking open the store house of B. C. Black, in the night time, with the intent “unlawfully, willfully, maliciously, feloniously and burglariously to steal-, take, and carry away” goods, wares and merchandise-of B. C. Black, of the value of fifteen dollars. They were tried separately, and Shaeffer was convicted.
1. One of Shaeffer’s defenses was that he was laboring under such a defect of mind as not to know the nature and quality of the act with which he was charged ; or, if he did know, that- he was ignorant of doing wrong in committing it. In connection with other evidence tending to sustain this defense, he offered to prove by his. mother that “she had another son, just two years older than the defendant, who lived to be eight years of age, and was 'all of his life an imbecile, not knowing either his father or mother, and not being able to walk or talk;” and the court refused to admit the evidence; In this it erred. Such evidence is cumulative, and is only admissible in connection with other evidence bearing upon the same subject. • People v. Garbutt, 17 Mich. 9; Wharton & Stille’s Medical Jurisprudence, secs. 375, 377,
2. Appellant introduced John Cargwill and others, as witnesses, who testified that they had known him for many years and what they knew of his condition ; and that they did not think that he was able to distinguish -between right and wrong to such an extent as to be able to know that it was wrong to commit burglary or larceny. After this his attorneys asked him the following question: “Prom your observation of the defendant during your acquaintance with him, and from the acts you have detailed, do you think, if he could distinguish between right and wrong as to a crime like he is charged with, he would have sufficient mental power to keep from committipg the crime?” They were not permitted to answer it, and no error was committed in the refusal.
When a person’s mental condition or capacity is in question, the opinions of witnesses, who are not experts, as to such capacity are only admissible in evidence, when taken in connection with the facts upon which such opinions are based. Before such evidence can be admissible, “ the specific facts upon which the opinions are based must first be stated by the witnesses, or their testimony must show that such intimate and close relations have existed between the party alleged to be insane and themselves as fairly to lead to the conclusion that their opinions will be justified by their opportunities for observing the party.” In other words, the opinion of such a witness is not admissible in evidence until it be first shown by his own testimony that he has information upon which it can reasonably be based. Whether the information is sufficient for that purpose is a question for the court to decide before it can be admitted. After its admission, the weight to be given it is determined by the jury. Buswell on Insanity, secs, 240, 241, and cases cited.
In the case under consideration, the foundation laid was not sufficient to render the opinion sought admissible as evidence. The witnesses did not show that they had opportunities to know what capacity the appellant had to resist any propensity or temptation to commit what constitutes burglary or larceny, if done by a sane person. The facts within their knowledge convinced them that he could not distinguish between right and wrong as to such crimes. In their opinion, the opportunity never had offered itself for them to determine whether he could abstain from the commission of the crime of burglary, when he knew or believed such crimes were wrong, and he had an opportunity to commit any of them. Never having seen him tested under such circumstances, they could form no opinion as to his capacity to refrain from the commission of the crime charged against him, which would be admissible as evidence. How could they? Upon what could they base it?
No foundation having been laid for the introduction of the opinion sought by the question propounded, which the court refused to allow witnesses to answer, there is no occasion for us to consider the admissibility of evidence to show that appellant was incapable of resisting an impulse to commit the acts with which he was charged. As to the admissibility of such evidence, there is a conflict of authority, and we express no opinion.
3. To rebut the evidence adduced by the appellant to show that he did not have the capacity to distinguish between right and wrong as to the acts with which he was charged, the state introduced J. Iv. Moore, B. C. Black, and others as witnesses. Moore testified as follows: “I have known the defendant for five or six years. During that time I have seen him on the street very often. I have never had him working around me. From what I have seen of him during that time and observed, I don’t think there is anything wrong with him.” Black said : ‘‘I have seen the defendant on the street for several years. I never noticed anything peculiar about him. From what I have seen of him, I never thought but that he was all right.” All this testimony was admitted over the objection of the appellant. In this the court erred.' They did not show that they were possessed of information sufficient to form an opinion entitled to be adduced as evidence.
4. The appellant asked and the court refused to give the following instruction : “If the jury find from the evidence that the defendant did in fact break and enter the house of B. C. Black with the intent to commit petit larceny only, he would not be guilty as charged, and the jury should acquit him.”
While this instruction was covered by one given, and no reversible error was committed in refusing it, the court would have done well if it had granted the request.
Had it done so, the jury would more certainly have understood their duty in the premises.
There are other questions in the case, which we deem unnecessary to notice in this opinion.
For the errors indicated, the judgment of the circuit court is reversed, and the cause is remanded for a new trial. | [
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Bunn, C. J.,
(after stating the facts). The first question that presents itself for our consideration is, was there an abandonment of the purchase, and an election to stand on the alternative part of the contract, to-wit, the lease? By their suit plaintiffs elected to proceed under the lease or rent clause of the contract. The appellants, by their contention, deny that plaintiffs below (and appellees here) had any election in the matter, and from that standpoint contend that “the burden is on appel lees to show, by a preponderance of the testimony, some sort of contract whereby Benson became their tenant of the premises for the year 1892, and obligated himself to pay rent therefor.”
In the first place, as to the four absent rent notes, we think that all of the notes for the rent were either given to Smith & Hamilton by Benson, and afterwards all except the one were lost or mislaid by them, so that they could not be produced on the trial; or else that, by inadvertence, they were not actually executed and delivered, as was agreed upon, and as was intended, by the terms of the contract, to be executed. In either case, it is but just and equitable that the appellant should be held bound just as if the note of 1892, as well as the other absent notes, had been produced in court, because in equity that which was agreed to be done, and ought to have been done, as a part of the contract, is to be considered as done.
It was said in Ish v. Morgan, 48 Ark. 415: “If the contract shows that the defendant was in under an agreement to purchase, the idea of a tenancy was rebutted, and neither Hampton, nor those succeeding to his rights, could evict him by the summary process of unlawful detainer, although he had not strictly complied with the contract of purchase. But if, on the other hand, the meaning of it is, that he is to pay rent, or a compensation for the use of the land, then he was a tenant, and as he held over after the expiration of his term, he could be evicted by the remedy here adopted. The first stipulation of the contract is one of purchase and sale. It binds the vendor to convey to the defendant; but to the terms of this agreement there is annexed the condition that, in case of failure in the performance of the agreement to pay the first installment of purchase money, the intended vendee shall thereafter pay rent for the use of the land. It was certainly com petent for the parties to enter into a binding agreement of this nature. The vendor, being unwilling to take the hazard of losing both principal and interest of the purchase price, and the rent of the land as well, may .make a sale upon condition, and give the vendee an option to hold as purchaser or as tenant after a given day. The vendee here has in effect agreed that his rights shall depend upon the scrupulous adherence to the engagement he made to pay the purchase price, and that time should be a material consideration in the contract.’’ The vendee in that case, having failed to pay the first installment of purchase money when due, was held in effect to have, by his failure, elected to become the tenant of the vendor, under the rent clause of the contract, and was subjected to the burden of a mere tenant. It is apparent that a contract may be drawn in which the vendor might have the option to stand on either clause after default by the vendee. But it *is unnecessary to do more than suggest this here, since we hold that by the absolute terms of the contract now under consideration the option was with the vendee, and by his default in payment of either of his purchase money notes when due, he has made his election. So, then, it required no evidence on the part of the plaintiffs to establish their right of action on the rent note, except that default in payment of some one of the purchase money notes had been made, and that they were the legal owners of the note sued on. That default in the purchase money had been made- by appellants is shown without controversy, and, that being the case, the right of action in the owners of the rent notes follows as a conclusion upon a proper construction of the contract.
The doctrine of the case of Ish v. Morgan, supra, is in effect re-affirmed in Quertermous v. Hatfield, 54 Ark. 16, for the doctrine in both cases is simply that men are bound by the terms of their contracts, which they may lawfully make, and that these contracts are such as they lawfully may make.
It is contended, under this head, that “the mere failure of the defendant (Benson), therefore, to make payment at the time named did not extinguish his equitable rights.” That is true, at least in most cases, where the defeasance is absolute, and no alternative contractual relation is created or provided in the contract itself ; and this distinction will appear by a close examination of nearly all, if not quits all, the authorities cited by them in support of the contention. Thus, differently from those in the case at bar, do the facts appear in the following cases cited by appellant: Converse v. Blumrich, 14 Mich. 109; (90 Am. Dec. 230) Sornborger v. Berggren, 30 N. W. (Neb.) 413; Coles v. Shepard, 16 N. W. 153 (Minn.); Orr v. State, 56 Ark. 107; Gibbs v. Champion, 3 Ohio, 335; O'Connor v. Hughes, 29 N. W. (Minn.) 152; and Duryee v. Mayor, 96 N. Y. 477.
In C. B. & Q. Ry. Co. v. Skupa, 20 N. W. (Neb.), 393, and Robinson v. Cheney, 24 N. W. (Neb.), 378, there are apparent likenesses to the case at bar, but each of them seems to have gone off on the manner in which the vendor declared the forfeiture, rather than the existence of an alternative contract that should or should not have been acted upon. In the first of the two cases, the court merely construed a peculiar statute of Nebraska on the subject of unlawful detainer ; and in the second case, the equities rendered a forfeiture of the contract of purchase unconscionable under the peculiar state of facts.
Much of the discussion, in those cases where it is provided that on failure of the vendee to pay installments of the purchase money the vendor may treat the contract of sale as at an end, is with reference to the effect of a provision that time shall be of the essence of the contract, always designed for the purpose of giving an option to the vendor to declare a forfeiture of the contract of purchase on default of performance on the part of the vendee. We have no occasion to enter into such a discussion, for it is altogether foreign to the case under consideration.
The more difficult question for us to determine grows out of the fact that the rent note sued on, and which is sought to be made a lien on certain cotton raised by Benson on the lands in question during the year 1892, was purchased by appellees, Smith, Graham & Jones, from their co-appellees, before the institution of this suit. It is contended by appellants that the landlord’s lien for rent on the crop of the tenant is personal to himself, and is not assignable, so as to vest the right of action as to the lien in the assignee. This is certainly true, and is the doctrine of Varner v. Rice, 39 Ark. 344, Nolen v. Royston, 36 Ark. 561, and Roberts v. Jacks, 31 Ark. 597. That is to say, it goes without question or controversy, in this state, that the assignee of a rent note has his action at law for recovery on the note, but has no right at law or in equity to have the landlord’s lien enforced in his favor; for, as has been said, the lien is personal to the landlord himself, and is not assignable ; or, as stated by this court in Nolen v. Royston, supra, “is not assignable, so as to give a right of action in the assignee.”
The only evidence of the transfer of these rent notes, or rent claim, by Smith & Hamilton to Smith, Graham & Jones, is the testimony of Smith, a member of each of the firms and partnerships, who simply states “that, under the terms of this contract, they (he and Hamilton) claimed that Benson was their tenant of the premises described in the complaint in the year 1892 ; that the land they were seeking to recover rent for is the same land they had sold Benson under this contract; that Smith, Graham & Jones succeeded Hamilton and himself in business, and were the owners of all rights under the contract with Benson.” Now, whether this language is to be construed to mean that the firm of Smith, Graham & Jones are the assignees and absolute owners of the rent notes; or “are the owners of all rights (of Smith & Hamilton) under the contract with Benson,” as the witness has it, is a question of fact about which we have had some difficulty in coming to a conclusion. If the one is true, the other cannot be true, because if the note has been absolutely assigned, the legal and equitable right, once united in Smith & Hamilton, have been separated, and ifi that case Smith, Graham & Jones have the sole and exclusive right to the remedy to recover the debt, and nothing more; the court holding that the evidence shows there has been an absolute assignment or transfor of the debt.
The decree is affirmed as to the debt against Benson, and reversed as to the lien, and also as to the debt against Block. | [
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Bunn, C. J.
This is a prosecution begun before-T. W. Wilson, one of the justices of the peace of Pulaski county, upon the following affidavit, and the warrant issued thereon, to-wit: “I, T. C. Miller, do solemnly swear, that Thomas Dodson and Mrs.-Dodson, in said county of Pulaski, did on the first day of' March, 1891, live and cohabit together as husband and wife, he being a negro man and she being a white-woman, in violation of the statute laws of the State of Arkansas ; and pray a warrant from T. W. Wilson,, justice of the peace for said county, to apprehend and bring said Thomas Dodson before said justice, to be dealt with according to law.”
The defendant, Thomas Dodson, was found guilty of the charge by the justice of the peace, and fined in the sum of twenty-five dollars, from which judgment the defendant appealed.
In the circuit court the case was submitted to the court sitting as a jury, on an agreed statement of facts, which is as follows : “ That the defendant, Thomas Dodson, is a negro man, and that Mary Dodson is a white woman ; that in 1874 they applied to the county clerk of Pulaski county, and obtained a license to marry; that they took said license to a minister of the gospel, and he performed the ceremony of marriage between said Thomas Dodson and Mary Dodson, since which time they have lived together as husband and wife, and have raised a family, in Pulaski county; that there was no legal objection or impediment in the way of their marrying, except that one was white and the other a negro, which was the only question submitted for the decision of the Pulaski circuit court.”
The court found that the parties could not legally marry, and found the appellant guilty, and assessed his punishment at twenty-five dollars. Whereupon defendant appealed to this court.
The only questions in this case are: ‘‘Is section 4909, Sand. & H. Digest, constitutional? and was it in force at the time of the marriage, and is it still in force? That section was enacted and approved February 20, 1838, and is section 4, chapter 94, of the Revised Statutes. It was continued in all the digests of the statute laws of this state down to the Digest of 1874, in which it does not appear. It was brought forward in the Digest of 1884, and has never been repealed by any act of the legislature. The evidence shows that appellant and Mary Dodson, the one being, a negro man and the other a white woman, took out license to marry from the county clerk.of Pulaski county, and were mar ried by a minister of the gospel accordingly, sometime in the year 1874, and have been living together as husband and wife since that time.
The first contention of appellant is, that the statute named was repealed by the several constitutions of the state, adopted in 1864, 1868 and 1874. The argument on this point develops the fact that the contention is based on the abolition of negro slavery in those constitutions, and the consequent conferring upon that race equal rights and privileges with other races enjoying the rights and privileges of citizenship theretofore ; and, proceeding upon this foundation, it is contended that, as the making of contracts is one of the rights and privileges of the citizen, and marriage being in the eyes of the law only a civil contract,, therefore the right and privilege of entering into such a contract cannot be lawfully abridged. The fallacy of the contention is two-fold. First, the prohibitory statute makes no reference to the condition of the races named, whether free or in slavery; and, secondly, it is not true that marriage is only a civil contract. It is more than that. It is a social and domestic relation, subject to the exercise of the highest governmental power of the sovereign state — the police power. Green v. State, 58 Ala. 190.
Nor does the continued existence of the prohibitory act depend on the rather uncertain foundation that its' repeal cannot be asserted because, although in spirit repealed, yet, since this is only by implication, it must stand. The act is on a more solid foundation than. that. If repealed in the way contended for, it involves a surrender by the people of one of the attributes of sovereignty. That cannot be attributed to the people, unless made by express declaration, if at all.
The act in question has not been repealed or affected by any of the amendments to the federal constitution, and its validity, from a constitutional standpoint, is unquestioned. Francois v. State, 9 Tex. App. 144; Stewart on Marriage & Divorce, sec. 157; State v. Gibson, 36 Ind. 389; Kinney v. Commonwealth, 30 Grattan (Va.) 858; In re Hobbs, 1 Woods (U. S. C. C.) 537; Bishop on St. Cr. (2 ed.) sec. 738; 1 Bishop on Mar., Div. and Separation, sec. 689. Our statute declares all such marriages illegal and void, and, that being the case, it is constitutional. Hoover v. State, 59 Ala. 57; Frasher v. State, 3 Tex. App. 263; Scott v. State, 39 Ga. 321; State v. Kennedy, 76 N. C. 251; State v. Brady, 9 Humphreys (Tenn.), 74; Bailey v. Fiske, 34 Me. 77.
[Note. — The equal rights and privileges of negroes are the subject of annotation to Louisville, S. V. & T. Co. v. Louisville & N. R. Co., (Ky.) 14 E. R. A. 579.— Rep.j
Another plea of defendant is that he married in good faith, the statute in question not then being included in the digest of the statutes. If the plea was based on the facts as claimed, it would be unavailing, since ignorance of the law can never affect the judgment of a court of justice, however much it may be addressed to other departments of the government; but the evidence is that the marriage was entered into in 1874, and the digest in which the statute does not appear appears to have been published in the same year. No special date appears as marking either event, and we cannot determine that point, even if it were important to attempt to do so.
Seeing no error, the judgment of the lower court is affirmed. | [
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BATTEE, J.
The defendant, Pruitt Turner, was accused of murder in the first degree. The indictment against him, omitting the caption, was as-follows:
“The grand jury of Franklin county, in and for the Ozark district thereof, in the name and by the authority of the State of Arkansas, accuse P. Turner of the crime of murder in first degree, committed as follows, to-wit: The said P. Turner on the 17th day of February, 1895, in the county and district aforesaid, did unlawfully, willfully, and of his malice aforethought, and after premeditation and deliberation, kill and murder one Bob Hawkins, by shooting him, the said Bob Hawkins, with a certain gun which he, the said P. Turner, had and held in his hands, the said gun being then and there loaded with gunpowder and leaden bullets, with the felonious intent to then and there kill and murder him, the said Bob Hawkins, in manner and form aforesaid, against the peace and dignity of the state of Arkansas.”
He was tried, and convicted of murder in the first degree. Having filed a motion for a new trial, which was overruled, and a bill of exceptions, he appealed to this'court.
Is the indictment sufficient? This is the only question necessary for us to notice in this opinion. He is entitled to no relief on account of the other grounds set forth in his motion for a new trial.
The statutes upon which the indictment was based define murder to be “the unlawful killing of a human being, • in the peace of the state, with malice aforethought, either express or implied and define murder in the first degree to be “all murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of willful, deliberate, malicious, and premeditated hilling, or which shall be committed in the perpetration of, or in the attempt to perpetrate, arson, rape, robbery, burglary, or larceny.” Sand. & H. Dig. secs. 1639, 1644. All the acts necessary to constitute murder in the first degree, as defined by the statutes, are stated in the indictment in question. It is alleged that appellant killed Bob Hawkins by shooting him with a gun loaded with gunpowder and leaden bullets; that he shot him with the felonious intent to kill him, that is, he willfully, unlawfully, and feloniously killed him; and that he did so with malice aforethought, and after deliberation and premeditation. It is true it is not alleged that the “accused feloniously, willfully, and of his deliberately premeditated malice aforethought, did make an assault upon the deceased, and, a certain gun, which then and there wás loaded with gunpowder and one leaden bullet, and by him, the said Pruitt Turner, held in both his hands, he, the said Turner, did then and there feloniously and of his deliberately premeditated malice aforethought shoot off and discharge at and upon the said Bob Hawkins, thereby, and by thus striking the said Bob Hawkins with the said leaden bullet, inflicting on and in the left side of his head one mortal wound, of which mortal wound the said Hawkins instantly died,” according to the form recommended by Mr. Bishop, but all these allegations are substantially contained in the indictment. The allegations as to the assault, and the manner thereof, are virtually stated in it, because the appellant could not have killed Hawkins in the manner alleged without committing an assault in- the same manner. It is virtually alleged, that he unlawfully, willfully, feloniously, and with malice aforethought, and after deliberation and premeditation, shot Hawkins, because it said that he unlawfully, willfully, and with malice aforethought, and after premeditation and deliberation, killed him by shooting him with a gun with the “felonious intent to then and there kill and murder him.” The killing having been willfully committed by shooting, the shooting was done in the manner the killing was alleged to have been perpetrated. It is not alleged that Turner shot off and discharged the gun at and upon Hawkins, but the same allegation is in effect made by the -statement that the gun was loaded with gunpowder and leaden bullets, and that he killed Hawkins by shooting .him with the gun thus loaded. All the essentials of the approved forms for indictments for murder in the first degree are substantially set out in the indictment in question, “in ordinary and concise language, and in such a manner as to enable a person of common understanding to know what is intended.”'
But appellant contends that the indictment is fatally defective because the word “feloniously” is not used in charging the offense, and cites Edwards v. State, 25 Ark. 444, and Mott v. State, 29 Ark. 147, to sustain his contention. In neither of them was the crime of which the defendant was accused alleged to have been committed with a felonious intent, as in the indictment before us. The question we have under consideration was not presented for determination. While, according to them, it is necessary for indictments for felonies to show that the crime charged was feloniously committed, we think that is done when it is alleged to have been perpetrated with a felonious intent. There is no magic in words. Ideas are important. Wheh they are conveyed in lan guage sufficient to enable a person of common understanding to fully comprehend them, as a general rule, the whole mission of words is accomplished.
The indictment in this case is unskillfully drawn, but we think it is sufficient.
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Battle, J.
John Sokal brought this action against the Kansas City, Port Scott and Memphis Railroad Company, in the Crittenden circuit court, to recover damages sustained by him through the unlawful acts of the defendant. He alleged that, having purchased of the defendant a ticket on the 24th of December, 1890, which entitled him to transportation over its road from West Memphis to Jericho, in this state, he entered a passenger train of the defendant going to Jericho, at West Memphis, and delivered his ticket to the conductor ; and that thereafter, before he reached Jericho, without any fault or misconduct on his part, the employees of the defendant, with force and arms, seized him, and wantonly ejected him, with great indignity, from the train to the ground below, whereby he was damaged in the sum of $10,000.
The defendant answered, and denied the allegations of the plaintiff, and alleged that he was drunk and disorderly on the train, and guilty of using profane and vulgar language in the presence of lady passengers, and otherwise so misconducted himself as to make it the duty of the conductor to eject him.
The venue in the case was changed, on the application of defendant, from Crittenden to Mississippi county.
The issues were tried by a jury. The evidence adduced in the trial was conflicting. It was proved that Sokal entered a train of the defendant at West Memphis, and was put off by the conductor before he reached Jericho, the place of his destination, at a place which was not a station. But as to the delivery of a ticket, or payment of fare by him to the conductor, witnesses were not agreed. The conductor and a brakeman testified that he did not, while he swore that he purchased a ticket from the defendant, which entitled him to transportation in a passenger train over its road from West Memphis to Jericho, and delivered it to the conductor after entering the train, and introduced evidence corroborating his statement. As to the place he was put off, evidence was adduced tending to show it was a short distance beyond the station of Marion, near a trestle, and where the road bed was four or five feet high, and a ditch filled with water was at the foot of the embankment. It was raining or sleeting at the time he was ejected.
Evidence was also adduced tending to show that Sokal was intoxicated and noisy at the time he was put off the train; that he used profane language in the presence of ladies ; and that he attempted to sit in the lap of a colored woman, and, when she remonstrated, cursed. But this evidence was contradicted by other testimony. It does not appear, however, that he was ejected on account of his noise, profane language, or improper conduct, but because he failed to pay fare, or deliver a ticket showing that he had done so.
Witnesses do not agree as to the manner in which he was ejected. Some testified that he was put off in a rude manner; was pitched off while the train was moving with such force that he fell down the embankment, and lay prostrate in the mud and water. Others testified that no violence was used, and that he alighted on his feet, and fell after the men who put him off had left him standing.
The conductor testified that he made a report to the defendant showing how many tickets he received from West Memphis to Jericho on the day Sokal was ejected, which was sent to Kansas City, but he did not know whether it was then in existence, and did not remember what it showed. There was no evidence that any record was kept of the names of those who purchased tickets or delivered them to the conductor.
Upon the last argument of the case before the jury, Mr. Percy, counsel for plaintiff, who was making it, said :
“Now, gentlemen of the jury, why is this case here, and why are the people of Mississippi county called upon tó try a railroad company running through another county for an offense committed in that county? The case is here on a change of venue from the good county of Crittenden, and who got it? Gentlemen of the jury, how did it come here? We find the papers of this case after the trial of it at Marion — ”
Mr. Trimble, counsel for the defendant, interrupting, said : “If the court please, we think that it is an improper argument.”
Mr. Percy said: “I have no doubt they will try to interrupt me. It is the hit dog that always howls.”
The court said: “I expect that is an improper argument.”
Mr. Percy said: “I am not going to read any of the evidence in that case.”
The court: “I think it is improper to refer to the change of venue.”
Mr. Percy : “I have a right to read the record in this case.”
The court: “ I do not think the jury has anything to do with the change of venue.”
Mr. Percy: “Your honor will not let me state to the jury why this case was brought from Crittenden county.”
The court: “No, sir, because that might defeat the object the defendant had in bringing it from one county to another.”
Mr. Percy said: “Very well, sir, I don’t blame them for wanting to keep that fact away from the jury.”1
Mr. Trimble: “Now, we except to that. We think it is an improper statement to make to the jury.”'
The court: “I think our supreme court has passed, upon the question, and has properly held that it is. entirely foreign to the case, and the jury should not. consider and counsel should not argue it. I am satisfied; Mr. Percy overlooked that at the time.”
Mr. Percy : “I do not want to travel out of the record.”
The court: “ It is not outside of the record, but it is not proper to comment on it, because it is not a matter that the jury have anything to do with.”
Mr. Percy: “I submit this, that if the record shows that this case was removed from Crittenden county upon the affidavits of these parties that they could not get a fair trial, that the feeling in Crittenden county is so strongly against them there, I submit that is a matter of record which can be read to the jury.”
The Court: “No sir. It is not a matter you can read or the jury can consider in arriving at their verdict in the case.”
Mr. Percy: “Very well, sir,” etc.
Again, in the concluding portion of his argument Mr. Percy said : “A great many passengers were on board that train, some going to Kansas City. This railroad knows of everybody on there, where all those passengers are, and where they can be found, and they could have been brought here to testify.”
Mr. Trimble: “That is not in evidence, and not the truth.”
The court said that counsel must confine himself to the evidence.
Mr. Percy: “That is all right. I say this, that they have a record showing where everybody got off that train, and they could, had they so desired, have made an investigation, and found where everybody got off that train. It is probably true that they made an investigation, and found out it would not do them any good to bring them here.”
Later in his argument Mr. Percy said: “Now gentlemen, taking their own theory of this law suit, that they put him off because he was too drunk to behave himself, could they sit there and see him fall down — a man in that condition in that sort of weather? They knew that ten, fifteen or twenty trains a day were running on that track, and the last that they saw of him was while he was falling down the side of the track. They did not know, and, in the language of Mr. Vanderbilt, they didn’t give a damn, whether the next train that came along ran over him or not.”
Mr. Trimble: “If the court please, we object to that as an improper argument.”
Mr. Percy: “Let the hit dog howl always. But these men know that what I am saying is so.”
The Court: “I hardly think the expression used is in keeping with the dignity of the court, and counsel should not use such expressions.”
Mr. Percy : “I used it in quotation. I have heard it spoken in that way. I say the inhumanity of putting a man off in that condition, in that sort of weather, is something these people should be made to smart for.”
The jury returned a verdict in favor of the plaintiff for $500 ; and the court rendered judgment accordingly ; and the defendant appealed.
The remarks of counsel as to the change of venue and the record kept by the appellant were unquestion ably improper. The question is, should the judgment of the trial court be reversed on account of them?
Courts are instituted for the purpose of enforcing a ° the right, and redressing wrongs, according to the laws. In jury trials, evidence is adduced for the purpose of ascertaining the truth, and instructions are given by the court to inform the jury as to the law applicable to the facts. Jurors should ascertain the truth from the evidence, and apply the law as given by the court to the facts as they find them, and return a verdict accordingly. Except as to those facts of which courts take judicial notice,, juries should consider only the evidence adduced. Arguments by counsel of the evidence adduced and the law as given by the court are allowed only to aid them in the discharge of their duty. Within these limits counsel may present their client’s case in the most favorable light they can. When they go beyond them, and undertake to supply the deficiencies of their client’s case by assertions as to facts which are unsupported by the evidence, or by appeals to prejudices foreign to the case, they travel outside of their duty and right, and abuse the privilege of addressing the jury by using it for a purpose it was never intended to accomplish; for such assertions or appeals can serve no purpose except to mislead the jury and defeat the ends of the law in requiring them to confine their consideration to the evidence adduced and the law embodied in the instructions of the court. Hence it is the obvious duty of courts, in furtherance of the object of their creation, to prevent such assertions or appeals or, when made, to remove their evil effects, so far as they can ; and attorneys, in the making of them, if they are calculated to prejudice the rights of parties, are guilty of a violation of the law, of an abuse of their privileges, of conduct unfair and unbecoming to their profession, and should be promptly and sternly rebuked by the court, and, if need be, punished. L. R. & F. S. Ry. Co. v. Cavenesse, 48 Ark. 131, 132; Brown v. Swineford, 44 Wis. 282; Holder v. State, 58 Ark. 473; Ferguson v. State, 49 Ind. 34; Shular v. State, 105 Ind. 304; and Waldron v. Waldron, 156 U. S. 361.
While it is the duty of trial courts to confine counsel within the limits of legitimate debate, an omission to do this duty, while it may be a good reason for criticism, will not always entitle the appellant to a reversal of the judgment of the court below. A failure in this respect, which is not calculated to prejudice the cause of the appellant in the minds of honest men of fair intelligence, is not a ground for reversal. But material statements made by counsel of appellee outside the evidence, which were likely to injure appellant, and were excepted to by him at the time, and were not cured by the court, do constitute a good cause for reversal. Ordinarily, “an objection by the opposing counsel, promptly interposed, followed by a rebuke from the bench, and an admonition from the presiding judge to the jury to disregard prejudicial statements,” is sufficient to cure the prejudice ; but instances sometimes occur in which it is not sufficient, as Holder v State, 58 Ark. 473. Combs v. State, 75 Ind. 220.
The remarks of appellee’s counsel in this case in respect to the change of venue were unquestionably improper, for the jury had nothing to do with that subject. The mild and doubting way in which the court sustained the objection to the remarks, and the positive manner in which counsel insisted upon his right to make them, were calculated to render the ruling of the court of no effect. When counsel for appellee sought to convert the objection of appellant’s counsel into a confession that the record referred to was evidence damaging to the cause of appellant, the court said : “I expect that is an improper argument;” and counsel for appellee, emboldened by the doubting manner in which the court expressed his opinion, positively and unqualifiedly asserted that he had “a right to read the record in this case.” When counsel said, “I don’t want to travel out of the record,” the court replied, “ It is not outside of the record, but it is not proper to comment on it, because it is not a matter that the jury have anything to do with.” Encouraged by this remark, counsel again insisted on his right to read to the jury the record showing the proceedings in court in respect to the change of venue, by saying: “I submit this, that if the record shows that this cause was removed from Crittenden county upon the affidavit of these parties , that they could not get a fair trial, that the feeling in Crittenden county is so strongly against them there, I submit that is a matter of record which can be read to the jury.” And when the record as to the change of venue was in this manner brought before the jury, the court virtually bearing witness to the fact that counsel’s statements were sustained by the record, counsel for appellee ceased to contend that it was proper for the jury to consider it. These statements, admitted by the court to be true, had then made impressions upon the minds of the jury which could not be easily removed. The apparent doubt of the court, and the positive, unqualified, and repeated assertions of counsel, were not likely to accomplish that effect. We think the statements were prejudicial to appellant. The liberal verdict of the jury tends to confirm us in that conclusion.
The statements made by counsel to the effect that . 1 ■» r 1 appellant kept a record of the passengers on the tram from which appellee was ejected, and knows where they are, and can produce their testimony, were unsustained by the evidence, and likewise improper, and should have been excluded from the jury. The other remarks objected to were based on evidence, except as to the ten, fifteen or twenty trains passing daily over the track of appellant’s railroad.
Appellant asked the court to instruct the jury as follows : “If the plaintiff had a ticket entitling him to ride from Memphis to Jericho, but failed or refused to exhibit or surrender his ticket, claiming that he had surrendered it to the conductor, when he had not, the conductor had a right to put him off anywhere; and if he did put him- off under these circumstances, your verdict should be for the defendant.” And the court amended it by adding : “Unless the jury find from the , proof that he wTas put off at an unsafe or dangerous place, and that he was thereby injured, or unless the employees of defendant’s train used more force than was necessary in ejecting plaintiff from the trainand gave it as amended. Another instruction as to the right of appellant to eject appellee from the train for disorderly conduct was requested by appellant, and was amended by the court in the same manner and given. Appellant insists that these amendments were erroneous, “because there was no evidence whatever that appellee was put off -at an unsafe or dangerous place and was thereby injured, or that more force was used than was necessary.” We do not find any evidence to show that the place was unsafe or dangerous, but there was to prove that more force was used to put him off than was necessary. As the judgment in the case will be reversed, it is unnecessary to say more about these amendments. The defect indicated can be corrected in the next trial.
The judgment of the circuit court is reversed, and the cause remanded for a new trial.
Riddick, J., being disqualified, did not sit in this case. | [
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Wood, J.
The appellant, Sparks, filed a schedule before the clerk of the circuit court, claiming his homestead, and selecting it by metes and bounds. It is situated in the town of Wynne, and is of a value that required the area to be reduced to one-quarter of an acre. In selecting his quarter of an acre, he took, as a part of it, a walk two feet wide to his stable, and a walk two feet wide from the stable to the servants’ house. The parcel left after he made his selection abutted on an alley, but nowhere on a street. The following plat shows the shape of the homestead selected, and the residue after the homestead was laid off:
The part claimed as a homestead and the residue all belonged to Sparks, and constituted the entire east half of block five in the town of Wynne. The description of his homestead as contained in his schedule is as' follows : “Commencing at the southwest corner of the east half of block five, thence east 96 feet, thence north 216 feet, thence west 96 feet, thence south 20 feet, thence east 20 feet, thence north 18 feet and 6 inches, thence east 58 feet, thence south 23 feet, thence east 17 feet and 6 inches, thence south 134 feet, thence west 20 feet, thence north 30 feet, thence west 12 feet, thence north 27 feet, thence west 50 feet, thence south 134 feet to point of beginning, all in the town of Wynne, Arkansas.” The homestead, as thus.selected, almost surrounds the residue, cutting it off from access to any street, and leaving only an outlet of sixty-two feet on an alley on the west side thereof. It was in proof that this manner ■ of the selection and the peculiar shape in which it left the residue, making it inaccessible to the street, would make .it of little value; that in this shape it would probably be worth one hundred and forty or fifty dollars, but that, if the homestead had been selected so as to give a street front to the remainder, it would be worth two or three times that amount, and would not reduce the value of the homestead. The appellant said that he would not have had much objection to laying off his homestead so as to give a street front of fifty-eight feet on the north to the parcel left, but preferred, if the law would allow him, to take it the way it had been designated.
The court below found that the homestead was ■ “selected and laid off in an arbitrary, capricious and unreasonable shape, to the injury of plaintiffs, and without any corresponding benefit to the defendant,” and declared such selection of no effect and void, and thereupon set aside and quashed the supersedeas, and gave leave to defendant to file another schedule. The appellant seeks to reverse the judgment.
The supreme court of Alabama, in Jaffrey v. McGough, 88 Ala. 648, uses this language, which applies to this case, and exactly expresses our views : “An inspection of the remarkable diagram of the homestead attempted to be selected in this case, — running, as its boundaries do, in a zigzag direction, and shifting towards every possible point of the compass; shapeless in its capricious irregularity, and without apparent design except to take unjust advantage — a most casual inspection of it, we repeat, is. the surest demonstration, that such a thing cannot he tolerated by the law.” Mr. Thompson, in his work on Homesteads and Exemptions, says there is a “growing disposition on the part of the courts, in determining what is to be included in the homestead, to take into consideration the legal sub-divisions of land, such as public surveys and recorded town plats.” Thompson, Homest. & Ex. sec. 120. And Mr. Waples, we think, announces the just and correct doctrine, when he says “that, in the absence of any statute prescribing the form- of the homestead, courts ought never to permit a selection manifestly made in disregard of the rights of others;” and he continues: “Creditors are interested in the parts of a tract which are not exempt; and it never was the intent of the legislature to cut them. off from their remedy against non-exempt property, while protecting a limited quantity as a homestead. While the confinement of a homestead to the regular shape of * * * city lots is not a rule, because not everywhere practicable, it may be laid down as a rule that one authorized to select, declare, and record a homestead with a quantitative limitation cannot be permitted to carve it out of his land in such form as to leave the remainder worthless, or to impair its value, so that creditors shall be injured.” And we add, es pecially would that be the case where it is shown, as here, that the meandering was of no benefit to the homestead claimant. Waples, Homest. & Ex.- pp. 158, 160.
It follows that the judgment of the lower court is correct, and must be affirmed. So ordered. | [
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Hughes, J.,
(after stating the facts). There was no evidence that Cowen & Co. refused, or would have refused, to take the cotton at what they had offered for it, 7| cents per pound, and it is apparent that at this price the appellee would have lost nothing. But he chose to hold the cotton, and afterwards sold it at cents, and for the loss he sustained thereby the appellant is not liable. Had he delivered the cotton to Cowen & Co. at their offer, 7f cents per pound, be would have realized a profit of 1-16 of a cent per pound on the 39 bales he bought from Higgins at 7 9-16 cents per pound, and a profit on the 31 bales he bought from Clopton at 7¶ cents of | of a cent per pound, and upon the 5 bales he bought from Hornor a profit of 1-16 of a cent per pound. Cowen & Co., by their offer,, were bound to accept the 75 bales at 7# cents per pound, if delivered in accordance with their telegram. It is apparent, therefore, that the appellee suffered no damages by the mistake in sending the telegram.
The judgment is reversed, and, as the appellee would be entitled to nominal damages only if the case were remanded, judgment will be entered here in favor of the appellee for costs in the circuit court. “Nominal damages may be recovered for the bare infringement of a right, or for a breach of contract unaccompanied by any actual damage.” 1 Sedgwick on Damages, sec. 98. | [
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Riddick, J.
This action arose upon a petition of James O’Brien, as collector for the city of Little Rock, for a writ of mandamus to compel A. J. Quindley, as collector, and certain others, as commissioners of the Scott Street Paving District No. 46, to deliver the tax books for said district to said petitioner. The only question before us is whether the act of the legislature, approved April 19, 1895, entitled “An act to provide for the collection of assessments by the local improvement districts in cities of the first class,” is a valid law or not. The act in question requires that “in the collec-: tion of all assessments in local improvement districts in cities of the first class the assessment shall be payable to the city collector,” etc. Under this act the appellant, as city collector, claims the right to possession of the tax books for certain improvement districts in the city of Little Rock.
It is contended by the appellee that the act is in conflict with section 23 of article 5 of the state constitution, which provides that “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.” It is argued that the statute in question is amendatory of certain sections of the digest relating to the levying and collecting of assessments for local improvements in towns and cities, and that it- is void because it does not re-enact and publish at length the sections as amended. After a consideration of the question, our conclusion is that this position is not tenable. The act in question does not expressly amend any section of the statute. Whatever amendatory effect it had upon the law existing at the time of its passage was by implication only. The rule is settled, by a decided weight of authority, that repeals by implication are not within the meaning of this provision of the constitution, and it is not essential that they should re-enact, or even refer to, the acts or sections which, by implication, they repeal or amend. Watkins v. Eureka Springs, 49 Ark. 134; Scales v. State, 47 Ark. 480; People v. Mahaney, 13 Mich. 481; Cooley's Con. Lim. 182, 185; Sutherland, Stat. Construction,' sec. 135, and cases cited.
The purpose of such a provision in the constitution has seldom been better expressed than by Mr. Justice Cooley in the old case of People v. Mahaney, “The mischief designed to be remedied,” he said, “was the enactment of amendatory statutes in terms so blind that legislatures themselves were sometimes deceived in regard to their effect, and the public, from the difficulty in making the necessary examination and comparison, failed to become apprised of the changes made .in the laws. An amendatory act which purported only to insert certain words, or -to substitute one phrase for another in an act or section which was only referred to but not republished, was well calculated to mislead the careless as to its effect, and was, perhaps, sometimes drawn in that form for that express purpose. Endless confusion was thus introduced into the law, and the constitution wisely prohibited such legislation.” People v. Mahaney, 13 Mich. 497.
The statute under consideration does not purport to .amend any statute by a reference to its title or otherwise. No one can say that its terms are blind, or in any sense obscure or misleading. It plainly appears from it that the intention of the legislature was to require all assessments by local improvement districts in cities of the first class to be paid to, and collected by, the collector. To understand its meaning and effect, no reference is required to be made to any other section or statute. It was said by Chief Justice Cockrill, speaking for this court, in Watkins v. Eureka Springs, that “it could not have been the intention of the framers of the constitution to put unreasonable restraints upon the power of legislation, and thus unnecessarily embarrass the legislature in its work. They meant only to lay a restraint upon legislation where the bill was presented in such form that the legislature could not determine what its provisions were upon an inspection of it. . What is not within the mischief is not within the inhibition.” Watkins v. Eureka Springs, 49 Ark. 134; Montgomery Ass’n. v. Robinson, 69 Ala. 415; Home Ins. Co. v. Tax Dist. 4 Lea, 644.
For these reasons, we do not believe that this act is in conflict with the provision of the constitution mentioned above. The legislature, we think, had the power to pass it, and the courts must uphold it. The judgment of the circuit court is reversed, and the case remanded with an order for further proceedings.
Bunn, C. J., dissents. | [
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Bunn, C. J.
The defendant, Bill Cole, was indicted for trespass, in the Woodruff circuit court, and the indictment, omitting the formal parts, is as follows, to-wit: “The said Bill Cole, on the 1st day of August, 1895, in the county of Woodruff aforesaid, then and there, unlawfully and willfully, one horse, the property of O. C. Dillard, did ride, drive, take and carry away, without the knowledge or consent of him, the said O. C. Dillard, against the peace and dignity of the state of Arkansas.” A demurrer to this indictment, to the-effect that it charged no offense known to the law, was interposed by the defendant, and the same was, by the court, overruled; exceptions taken and reserved, and defendant was convicted, and appealed. .
It is conceded by the state that there is no statute making the particular act a crime in this state, but it is contended that the act alleged was a crime at common law, and, therefore, punishable in this state ; and the defendant contends to the contrary.
It is difficult to discuss the subject of trespass to personal property without considering it either as an element of larceny or of malicious mischief; for, when not considered in connection'with one or the other of these crimes, it was rarely the subject of indictment at common law. The modern state of the law, it would seem, is to restrict the scope even of malicious mischief, as an indictable offense, from what it was at common law. Thus Mr. Wharton, in his work on Criminal Law, (9th edition), section 1068, says: “The recent inclination, however, so far as the common law is concerned, is to restrict the party injured to his civil remedies, except where the offense is committed secretly, in the night time, or in such other way as to inflict peculiarly wanton injury, so as to imply malice to the owner ; or where it is accompanied with a breach of the peace.” And elsewhere it is added, where the act is marked with malignant cruelty to animals.
The act complained of is not charged to have been done secretly, or in the night time; nor in the presence of the owner, in such a manner as to cause a breach of the peace; nor is it alleged that any injury was done to the animal or to the owner thereof, nor that the act was committed in a manner and under circumstances indicating malice or ill will toward the owner, or malignant cruelty to the animal, nor in a mere spirit of wantonness. In fact, the indictment fails to contain any of the elements of a criminal offense, except it be that the act was without the knowledge and consent of the. owner, and that it was done against the peace and dignity of the state ; and these of themselves are not sufficient to charge a crime to any one.
The demurrer should have been sustained, and, for this error in overruling the same, the judgment is reversed, and the cause is remanded, with instructions to sustain the demurrer. | [
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PER Curiam.
This was an attachment by the Mansur & Tebbetts Implement Company against Robert Filis, in the Miller circuit court, on the ground that he had disposed of his property with the fraudulent intent to cheat, hinder and delay his creditors. N. B. Davis, the appellee, interpleaded, claiming the goods by purchase from the defendant. Defendant, Ellis, filed an affidavit controverting the affidavit for attachment; and, on the trial of this issue, judgment was for plaintiff for its debt, and the attachment was sustained.
Thereupon, plaintiff filed an answer to the interplea, admitting the sale by defendant to interpleader, and the delivery to him of the possession of the goods sold, as alleged in the interplea, previous to the issuance of the writ of attachment, and that the property was so in the possession of the interpleader when the writ of attachment was served by the sheriff, but alleged that, at the time of said sale by defendant, Ellis, to interpleader, Davis, the defendant was largely indebted, and was, in fact., insolvent, and that said sale and transfer was without consideration, and for the purpose of cheating and defrauding the defendant’s creditors, and of hindering and delaying them in the collection of their debts.
Before the introduction of testimony, plaintiff asked to assume the burden of proof, and this was refused; and after the evidence was all in, and the instructions settled, plaintiff moved the court that, as it had admitted the sale to, and possession of, the interpleader, and thus made a frima facie case for him, and as the remaining issue was as to the dona fides of said sale, as to which issue the burden was on it, to permit it to open and conclude the argument. This motion was overruled, and plaintiff reserved exceptions.
Section 2927, Sandels & Hill’s Digest, reads thus: “The party holding the affirmative of an issue must produce the evidence to prove it.” Section 2928 : “ The burden of proof in the whole action lies on the party who would be defeated if no evidence were given on either side.” The 3rd sub-division of section 5820, Sandels & Hill’s Digest, reads thus: “Third. The party on whom rests the burden of proof in the whole action must first produce his evidence. The adverse party will then produce his evidence.” The 6th sub-division of the same section reads thus: “Sixth. The parties may then submit or argue the case to the jury. In the argument the party having the burden of proof shall have the opening and conclusion; and if, upon demand of his adversary, he shall refuse to open and fully state the grounds upon which he claims a verdict, he shall be refused the conclusion.”
The majority of the court are of the opinion, that upon the state of case here made by the pleadings, the motion of plaintiff should have been sustained, and that, in overruling the same, the court erred, and that the error is such that the judgment must be reversed. Railway Co. v. Taylor, 57 Ark. 137; Tobin v. Jenkins, 29 Ark. 151.
In other respects this cauese is on a footing with the cases of Hargadine-McKittrick Dry Goods Co. against N. L. Davis, Interpleader (No. 2811), and Stern, Lauer, Shohl & Co. against N. L. Davis, Interpleader, (No. 2881), determined to-day, and would be affirmed except for the error mentioned.
Reversed, and remanded for further proceedings not inconsistent with this opinion.
Orally decided. | [
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HetghES, J.,
(after stating the facts). The agreed statement of facts in- this case states “that on the 20fch day of July, 1893, the town organized itself into a single school district, in the manner provided by law.” This is conclusive in this case that the Mt. Nebo school district was legally formed. The fact that', after the incorporation of the town, and before the formation of the Mt. Nebo single school district, the clerk apportioned to it $225, though irregular, will not deprive that district of the apportionment, as it is provided by section 3, act of April 8th, 1887, now section 6992, Sandels & Hill’s Digest, that “in case there be a surplus fund on hand at the time of the formation of said district [a new district], it shall be entitled to a proportionate part of said fund, the same to be ascertained and determined by the county court of the county in which said new district may be created, as in the judgment of said court may be right and proper.”
The district, when formed, was entitled to the apportionment, and it was not proper to deprive it of it because it was made before the district was formed. ,
The decree is reversed, and the cause is dismissed. | [
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Riddick, J.,
(after stating the facts). The judgment of the circuit court must be reversed, for the facts in proof do not make out a case of robbery. Robbery, as defined by the text books and the previous decisions of this court, is a felonious and forcible taking of the property of another from his person or in his presence, against his will, by violence, or putting him in fear. And this violence must precede or accompany the taking of the property, Clary v. State, 33 Ark. 561; 1 Wharton’s Crim. Law, sec. 846.
The taking must be done through force or fear. “If force is relied on in proof of the charge, it must be the force by which another is deprived of, and the offender gains, possession. If putting in fear is relied oni it must be the fear under duress of which the possession of the property is parted with. * * * The fear of physical ill must come before the relinquishment of the property to the thief, and not after ; else, the offense is not robbery.” Thomas v. State, 91 Ala. 36; 2 Bish. New Crim. Law, sec. 1175; Rex v. Harman, 2 East, P. C. 736. It is well established that the snatching of money or goods from the hand of another is not robbery, unless some injury is done to the person, or there be some previous struggle for the possession of the property, or some force used in order to obtain it. In an Indiana case the complainant was fraudulently induced by two confederates to expose some money in his hands. One of them then snatched it from him, and ran away, while the other held him, so that he could not pursue, and a struggle between them ensued. The court held that this did not constitute robbery. Shinn v. State, 64 Ind. 13, S. C.; 31 Am. Rep. 110. We need not discuss the authorities further, for there are numerous cases holding that where the property is obtained by artifice or trick, or by merely snatching from the hand, and where the only display of force is used to prevent the re-taking of the property by the owner, the crime is not robbery. Thomas v. State, 91 Ala. 36; Shinn v. State, 64 Ind. 13; 31 Am. Rep. 110; State v. John, 69 Am. Dec. 777; S. C. 5 Jones, Law, (N. C.), 163; State v. McCune, 70 Am. Dec. 176, and note ; Rex v. Harman, 2 East. P. C. 736; 2 Bish. New Crim. Law, sec. 1167; 1 Wharton, Crim. Law, sec. 854.
Opinion delivered February 22, 1896.
In this case the money was obtained by snatching from the hand. There was no force, or display of force, or putting in fear, until Holt drew his pistol to prevent Morgan from leaving the car with the money. Morgan then drew his pistol, but this was done, not to force Holt to surrender the possession of the money, for he had already parted with it, but only to prevent him from regaining possession. The proof, we think, clearly shows that Routt and Morgan were guilty of larceny, but it is not sufficient to sustain a conviction of robbery.
The judgment of the circuit court is reversed, and the cause is remanded for a new trial. | [
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Riddick, J.,
(after stating the facts)-. We agree with the circuit court in holding that the right, of action of appellant is barred by the statute of limitation and the lapse of time. Wm. C. Sypert, the ancestor of appellees, purchased the land in controversy at a sale ordered by a court for partition, in the year 1873. The sale was duly confirmed, and a deed made in pursuance; thereto. Under this sale and conveyance, Sypert took possession of the lands, and held the same openly, adversely and continuously under a claim of title from the year 1873 till the time of his death, in 1891, and this action was not commenced until 1893, twenty years after Sypert took possession of the land. This open, notorious and adverse possession of the land was, in law, notice to all the world of Sypert’s possession and claim of ownership, but the appellant had also actual notice of these facts. He also knew that his father had at one time owned or claimed the land, for, when questioned on this point, he said : “I had heard people say that the land around Nashville was once known as the “Thomas Place,” but I did not know what title my father held, the amount, or the numbers,” etc. Again, referring to this matter, he said : ‘ ‘In my former deposition I said all I knew about the land in controversy being sold was what Wm. C. Sypert told me, just before I was married, that he had bought all the property. I did not know what kind of a sale was made, nor when it was made, nor how the sale was made.” This conversation with Sypert, in which he told plaintiff of the purchase, occurred before plaintiff was married, and plaintiff was married before he became of age. The testimony of plaintiff himself, we think, shows that, before he became of age, he knew that the land in controversy had been a portion of his father’s estate, and that afterwards it had been purchased by Sypert at a judicial sale of some kind. But, apart from this testimony, it would be strange if appellant, a man of fair intelligence, who was nearly nine years of age at the time of the marriage of his mother with the ancestor of appellees, and who lived till grown on the land in controversy, in the midst of neighbors and acquaintances, most, if not all, of whom knew, for it was a matter of common knowledge in the neighborhood that the land had been the home stead and a part of the estate left by his father, — it would be exceedingly strange if he remained ignorant of that fact till long after he became of age. But if he knew that this land had belonged to the estate of his father, and we think there can be no doubt that he had this knowledge, this was sufficient to put him on an inquiry which, if properly pursued, would have led to the discovery of all the other matters essential to the establishment of his rights. That he did not know the exact nature of his father’s title, or the numbers of the land, was a matter of no consequence, for this could have, been ascertained from the public records of the county. These records would'also have fully informed him of the nature of the title under which Sypert claimed the land. He must have known of these facts before he became of age, and yet, with nothing to prevent him from bringing suit, he waited fifteen years after becoming of age, and until Sypert was dead, before commencing his action.
The evidence impresses us with the belief that this long delay in asserting his rights was occasioned, not by reason of any concealment on the part of Sypert, or from ignorance of the facts on the part of appellant, but that it was due, either to ignorance of the law,— which, according to an old maxim, excuses no one, — or, what is more probable, to the natural repugnance felt by appellant ■ against harassing, by a law suit, the old age of a man who had adopted him as a son, had long stood towards him in the relation of a parent, and in whom, to use his own language, he “had the greatest confidence.” While this delay was not discreditable to appellant, attesting as it does a due regard for his adopted father, it was yet fatal to his right to recover.
The defects, whatever they may have been, that existed in the title of appellees are now cured by lapse of time, and covered by the mantle of repose which the statute places over rights long openly, adversely and peaceably asserted. “The law wisely holds that there shall come a time when even the wrongful possessor shall have peace.” Cunningham v. Brumback, 23 Ark. 338.
The fact that Sypert was the administrator of the J A estate of appellant’s father, and also stood in loco fiarenlis towards appellant, can now avail nothing, after so great a lapse of time; for, by the purchase and adverse possession of the land; Sypert had, so far as it was concerned, openly repudiated the trust. The rule is that “the statute begins to run from the time that the trust is openly repudiated or disclaimed by the trustee.” Lawson’s Rights & Rem. sec. 2036 ; Bland v. Fleeman, 58 Ark. 90; Gibson v. Herriott, 55 Ark. 92; Hindman v. O'Connor, 54 Ark. 645; McGaughey v. Brown, 46 Ark. 34; Merriam v. Hassam, 14 Allen, 516; S. C. 92 Am. Dec. 795; Kane v. Bloodgood, 7 Johns. Ch. 90; S. C. 11 Am. Dec. 172; Wood v. Carpenter, 101 U. S. 139.
The learned special judge who heard this cause in the circuit court having favored us with an opinion correctly stating the facts and the law of the case, we concur in the same, and refer to it for a fuller discussion of the questions arising in this case. Por the reasons stated in that opinion, as well for those given above, the judgment of the circuit court is affirmed.
Battle, J., took no part in the determination of this cause. | [
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Bunn, C. J.
This is a petition for a writ of habeas corpus, originally presented to the Hon. James F. Robinson, chancellor of the second chancery district, and from his judgment of refusal to grant the same is appealed to this court, the record and all formal matters being properly presented.
The petitioner, S. G. Purcell, was indicted in the Jefferson circuit court for making an assault with a deadly weapon, was tried and convicted of a simple assault, and fined fifty dollars, and judgment rendered to the effect that he “remain in the custody until fine and costs are paid.” On his application, the governor ■of the State, on the 17th day of. May, 1895, remitted the fine aforesaid, and the language employed is as ■follows, to-wit: “I, James P. Clarke, governor of .Arkansas, do hereby grant to the said S. G. Purcell a free and full remission of, for and from payment of fifty •dollars of the said judgment rendered as aforesaid, and hereby absolving him from the payment of the said •sum of fifty dollars of the said judgment, and all the effects and consequences thereof.”
Subsequently, the clerk of said circuit court issued his execution for the collection, of the costs, as is provided in criminal cases, and placed the same in the hands of the sheriff of said county, and he thereupon arrested the petitioner, and placed him in jail, in accordance with the judgment of the circuit court and said execution issued thereon. Thereupon the petition herein was filed, and the same was heard and refused, as aforesaid.
A correct determination of the question involved in this proceeding depends upon a proper construction of the law' defining the pardoning power of the executive, and of the language employed in the grant of the pardon itself. Section 18, article 6, of the constitution provides that “in all criminal and penal cases, except in those of treason and impeachment, the governor shall have power to grant reprieves, commutations of sentence, and pardons after conviction; and to remit fines and forfeitures, under such rules and regulations as shall be prescribed by law.”
In Baldwin v. Scoggin, 15 Ark. 427, it is held that the power of the governor to remit fines exists even without an act of the legislature prescribing the method of doing so, and he can remit a fine even when the legislature has directed that it be paid into the county treasury for the use of the common school fund, when collected. But in Edwards v. State, 12 Ark. 122, which was a felony, this court said : “Costs are neither fines nor forfeitures, nor are they imposed by way of punishment, or as amercement at common law, but by way of sequence to every .judgment, whether in a civil or criminal case, as a matter of common justice to the party complainant, witnesses and officers of court, although the judgment is in favor of complainant alone. Costs, then, partaking in no respect of the nature either of punishment or of guilt, are without the sphere of the legitimate legal operation of a pardon, however general in terms.” And upon this reasoning this court in that case held that a “general pardon from the governor does not discharge the criminal from the costs of the prosecution.”
It is contended by the petitioner’s counsel herein that there is a difference between felonies and misdemeanors in this respect, since, by section 896 of Sand. & H. Digest, the misdemeanant is imprisoned for the costs as well as for the fine. There is force in the suggestion, and yet it may be suggested on the other hand that persons interested in the costs have no vested right in the criminal remedy for their collection, or in the imposition of the penalty for failing to pay them.
Besides, it appears that one of the reasons why a general pardon cannot exonerate the criminal from the payment of costs is that they go and belong to individuals, and not the public. Logically, then, a general pardon extends to all of the judgment that the public has an interest in, but not to that part in which individuals only are interested.
Upon reason, then; we think a general pardon exonerates from the payment of the fine proper, because that is a public concern, and for the same reason it takes away the criminal character of the judgment for the costs — the imprisonment part — leaving the civil obligation still resting upon the delinquent to be enforced as other civil obligations. In this view we are supported by the case of Ex parte Gregory, 56 Miss. 164, in which the supreme court of Mississippi, by Judge Chalmers, said: “When the pardon is granted before conviction, no judgment for costs can be rendered against the party. When it is granted after conviction, and after rendition of judgment for costs, the pardon does not extinguish the civil liability for costs ; because it is uniformly held, both in England and America, that the pardoning power does not extend to the remission, after judgment, of any pecuniary penalty which has inured to private persons or public officers, and hence that execution may be levied on the property of the party, notwithstanding the pardon. But there can be no right in the officers or other persons to hold the party in confinement, because this would amount substantially to imprisonment for debt. The imprisonment is part of the punishment, and is remitted by the pardon ; but the judgment for the costs is a debt, which, while it cannot be extinguished by the governor, must be collected, like other judgments, after the term of imprisonment has expired, or been abrogated by executive clemency.” That was a case of imprisonment in the county jail, and to pay costs.
It remains now to construe the language of the pardon, as granted above.
Since the remission is as to the payment of fifty dollars — the exact amount of the fine — -it is evident that the language of the pardon, in that respect, is the same as if the fine had been in terms remitted. Again, the words, “and all the effects and consequences thereof,” plainly have reference, not merely to the sum remitted, for there could be no effects and consequences of a something so passive, but to the judgment in the case, and one of the effects and consequences of it is the imprisonment not only for the remitted fine, but also for the costs, and the petitioner was relieved from the criminal effect and consequence of the judgment. Upon the whole, this amounts to a general pardon.
We conclude, therefore, that the chancellor erred in refusing the relief asked for, and the petitioner will be discharged from custody. | [
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Riddick, J.
(after stating the facts). The question for us to determine is whether this statement of the brakeman McFadden was part of the res gestae, and proper to go to the jury as evidence tending to show negligence. This statement was made after the accident, in response to an inquiry by the witness Cornelius. The acts to which it referred were completely past. The injured child had been borne away from the place of the accident. It was not a spontaneous utterance called forth by the accident, but was made in response to an inquiry, and was only a narration of past transactions by which McPadden was endeavoring to show that not himself, but another, was to blame for the accident. While there are cases that support the admission of such statements as part of the res gestae, yet we believe the best considered cases and the weight of authority to be the other way. It was said in a recent case that the “res gestae are events speaking for themselves through the instinctive words and acts of participants, not the words and acts of participants when narrating the events.” Graves v. People, 32 Pac. 63. See also Vicksburg etc. R. Co. v. O'Brien, 119 U. S. 105, and note; Waldele v. Railway Co. 95 N. Y. 274; Sullivan v. Oregon R. & N. Co. 12 Oregon, 392; 1 Greenl. Ev. sec. 108; Fort Smith Oil Co. v. Slover, 58 Ark. 179; 1 Wharton, Ev. secs. 258 and 259; Barker v. St. L., I. M. & S. Ry. Co. 126 Mo. 143; Wharton, Crim. Pv. sec. 262.
If, at the time of the accident, or immediately after-wards, the brakeman McPadden, moved by the excitement of the occasion, had exclaimed to the engineer “I gave you the signal in time to have stopped, but you were looking the other way,” such an instinctive exclamation, made under the effect of the excitement caused by the accident, would have been a part of the res gestae, and admissible. And so a spontaneous utterance of that kind, if made to bystanders immediately after accident, would be admissible, when it emanated from, and was called forth by, the excitement of the occasion. But the statement of McUaddeu to Cornelius did not accompany the act, nor was it an instinctive exclamation called forth by the accident, and emanating directly from it. It is difficult to lay down general rules to cover all cases, but, in our opinion, this was only a statement of an employee of defendant concerning a past transaction, and not a part of the res gestae. Under well known rules, it might, under some circumstances, have been used to contradict and. impeach 'the testimony of the witness McPadden, but it was not competent as evidence to show negligence on the part of the "defendant company.
This ruling, we think, is not in conflict with the case of L. R. etc. Railway Co. v. Leverett, 48 Ark. 343. In that case the evidence complained of was the statement of the injured person concerning the cause of his injuries. Mr. Justice Battle, who delivered the opinion of the court, said that “the statement of Leverett was made immediately after he was run over, and while the wrong complained of was incomplete, he being still under the car, and was a part of the res gestae, and fairly goes to explain the cause of the condition in which he was at the time it was made.” We do not think the case here falls within the rule laid down and followed in that case.
There were other rulings of the trial court complained of by the appellant. The court refused to allow the appellant to cross-examine witnesses concerning their family relations. The extent to which either party may be allowed to cross-examine a witness of the opposing side concerning collateral facts and matters not in issue is a question, to a large extent, within the discretion of the trial court, and we do not.see that the ■court abused its discretion in this regard, or committed any error, except as above noted. Por that error the judgment of the circuit court is reversed, and the case remanded for a new trial.
[Note. — A great number of authorities -on the question how near in time declarations must be to constitute a part of res gestae are collected in a note to Ohio & M. R. Co. v. Stein, (Ind.), 19 L. R. A. 633.—Rep.] | [
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Wood, J.
The appellee alleges in his complaint that he had bought 192 bales of cotton in the town of Ozark, for which he paid the current market price, and that this cotton was bought for the express purpose of selling same to cotton buyers in said town, who were, in the months of November and December, buying cotton in said town, and paying the current market price. He alleges that he failed to sell to these cotton buyers because the appellant negligently refused and failed to receive said cotton, and to provide transportation for same, notwithstanding appellee had at divers times requested appellant so to do, and had offered and tendered said cotton, and had been ready and willing to pay to appellant any sum they might legally demand for receiving and transporting the same ; and that, by reason of said failure and refusal of the appellant to furnish transportation for said cotton, appellee had been unable to sell the same, to his damage, as he alleged, in the sum of $375.89, for which he asks judgment. The appellant answered, denying all the material allegations, and set up matters in defense, which it becomes unnecessary to set out in the view we take of the case.
The appellee must fail for two reasons.
First. It is nowhere shown in the proof that the r • j 1 • • i i relation or carrier and snipper ever existed, or was m-tended or attempted to be created, between the appellant and appellee as to this 192 bales of cotton. Neither the appellee for himself, nor any witness on his behalf, states that this cotton was offered to the carrier for shipment, and that he refused to receive and ship same. The most definite proof on that point is from the plaintiff himself, who says: “I would not undertake to say that we went down there, and tendered these 192 bales, and asked them to ship them ; but I undertake to say we tried to ship cotton all along, and could not, and these 192 bales were on hand then.” Again, the plaintiff says, with reference to this particular lot of cotton: ‘T don’t remember whether I tried to ship this or not, but I remember I tried to ship some other. I don’t remember whether this was in it or not, but we did finally ship that.” Tru.e, there was proof that the railway had failed to.furnish transportation for cotton, and that same had accumulated on the yards ; but to hold the carrier liable for damages growing out of the failure to ship a specific lot of cotton, it should have been made to appear that the contractual relation of shipper and carrier existed, or was sought to be established, with reference to that specific cotton. On this proposition the proof is too vague and uncertain to be the basis of a judgment. The liability of common carriers of freight for a failure to furnish sufficient accommodation for the transportation of such property as they may be legally called upon to carry, (Sand. & H. Dig. secs. 6193-4; Fordyce v. Nix, 58 Ark. 140), attaches only in favor of those who come, or offer to come, into contractual relation with the carrier as shippers. This the appellee failed to do with reference to this particular cotton. The company, therefore, owed him no duty, and was subject to no liability.
Second. But the real gravamen of appellee’s grievanee, as he has stated it in his complaint, is that, as the carrier failed to ship, he failed to sell, and, in failing to sell, his damage accrued. The complaint states, and the proof shows, that he bought the cotton for the express purpose of selling in Ozark,-and .not to ship away from Ozark. In other words, he states and shows that he was a seller of cotton, not a shipper. Then how could he hold the carrier liable for a failure to ship when he not only did not ship, but never expected or intended to ship the cotton he bought? A plainer case for the application of the ancient maxim, ■‘‘Causa próxima, non remota, spectatur,” could hardly be stated or imagined.
Reversed and dismissed. | [
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CLAYTON, J.
This was an action of debt, brought by Richard C. Byrd against Absalom Fowler, in the circuit court of Pulaski county, in which the defence set up was a plea of the pending of a former suit for the same cause of action. The circuit court permitted the clerk to prove by parol that the writ in the former suit had been dismissed, overruled the plea, and gave judgment for the plaintiff; from which judgment an appeal was taken to this court. In chancery it is settled, that a lis pendens is created by filing a bill and actual service of the subpoena. 2 Madd. 256; 1 Johns. Ch. 560.
At law, suing out a writ constitutes the pendency of a suit, without any further step, and neither service of process, nor any other proceeding, is required to form the ground of a plea of another action pending for the same cause. 1 Bac. Abr. 23; 5 Coke, 48, 51. The plea of another action pending is an affirmative plea, and casts the onus probandi upon the defendant pleading it, and the proof to sustain it must be record evidence. 1 Saund. Pl. & Bv. 19. A record is a memorial of a proceeding or act of a court of record, entered in a roll for the preservation of it. 7 Com. Dig. tit. “Record,” A. When, in this case, the defendant in the court below showed the issuing of a writ for the same cause of action, he proved, prima facie, at least, the pendency of a suit; and it then devolved on the plaintiff to prove, by competent testimony, that the suit had been disposed of, and was no longer pending. The parol evidence introduced for the purpose was not, in our opinion, legal. Brush v. Taggart 7 Johns. 20; Hasbrouck v. Baker, 10 Johns. 248; Jenner v. Joliffe, 6 Johns. 9. Had he moved for leave to enter at that time a dismission of the first writ, or an order directing the clerk to make out upon the record a statement of the facts and dismission, as they had actually occurred, nunc pro tunc, we think upon that state of the case the plaintiff would have been entitled to succeed. • But the failure to do'so, and the attempt to supply the omission by parol testimony, constitutes such an error as to warrant the reversal of the judgment.
It is probable that even now, the plaintiff, by entering of record a dismissal of the first suit in the circuit court, will be entitled to have judgment in that court Judgment reversed. | [
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Smiti-i, J.,
(after stating the facts). We think there is no conflict between the acts creating the drainage dis triot, and the act creating the levee district. The former was organized for the purpose of draining a large territory and free it, not merely from overflow, bnt from the existence of a sluggish stream, while the levee district was organized for the purpose of affording protection from overflows to a much smaller section of country. From the description of the two districts, it is apparent that a much smaller area was contained in and protected by the levee district than was contained in and benefited by the drainage district. That the drainage district was larger than the levee district is of no significance, .as it is a matter of common knowledge that there are levee districts in the State which contain many drainage districts, and it may be the drainage may not become entirely effective without levee protection. Here the levee district was organized to protect the land against overflows of the Arkansas River. This drainage district was organized principally to protect that district against the inundations of Fourche Bayou and from the diseases which it engenders. It is true that these acts resulted in a double assessment against numerous tracts of land; but a tract of land may be benefited by two drainage districts or by drainage and levee districts, and, if so, there is no want of authority to assess it for the benefits received by each district, the assessment being ascertained by the respective agents making the assessments. Wilson v. Compton Bond & Mortgage Co., 103 Ark. 452.
It is true the act of 1907 provided a method for the assessment of benefits against the lands therein situated, and further provided a method by which any land owner who felt himself aggrieved might have his assessment reviewed. And it is true that these appellants were proceeding under the authority of this act at the time of the passage of the repealing act of 1913. But the Legislature might in the first instance have made this assessment without the interposition of any board of assessors, in which event its action would have been final and subject only to the right of the.courts to review for an arbitrary and manifest abuse of that power, and having this power in the first instance, it could, afterward exercise it at its pleasure, and it has done so. By this act of 1913, the Legislature ascertained and declared that the assessment previously made was a proper one and validated it, and its action in so doing is beyond judicial review in the absence of a showing that the assessment so validated was arbitrarily made regardless of benefit; or a showing that no benefit could possibly accrue from the improvement sought to be made to the property sought to be taxed.
These are questions of very great importance, but they have been raised and considered and decided in numerous recent cases by this court. Moore v. Board of Directors of Long Prairie Levee District, 98 Ark. 113; St. Louis S. W. Ry. Co. v. Board of Directors of Red River Levee District No. 1, 81 Ark. 562; Board of Directors of Jefferson County Bridge Dist. v. Collier, 104 Ark. 425; St. Louis S. W. Ry. Co. v. Grayson, 72 Ark. 126; St. Louis, I. M. & S. Ry. Co. v. Board of Directors of Levee District, 103 Ark. 132; Sudberry v. Graves, 83 Ark. 344; Salmon v. Board of Directors, 100 Ark. 369; Alexander v. Board of Directors, Crawford County Levee District, 97 Ark. 322. It does not appear from the pleadings how the assessors revised the assessments which were attacked in the original complaint, but it is alleged that they are still unjust, illegal and confiscatory.
In Moore v. Board of Directors of Long Prairie Levee District, it was said: “Nor can the courts review merely on general allegations that the assessments are ‘arbitrary, excessive and confiscatory.’ Facts must be pleaded which 'show that the decision of the lawmakers was not merely erroneous, but that it was manifestly outside of the rango of the facts, so as to amount to an arbitrary abuse of power; for nothing short of that will authorize a review by the courts. ’ ’
It was not alleged here that appellants’ lands would not have been benefited at all by the improvement. They simply contend that the assessment validated by the Legislature, is unequal and unjust, and these allegations are not sufficient to authorize the court to review a legislative assessment.
Nor do we think that appellants acquired any vested rig’hts in the remedy provided for the review of their assessments hy the act of 1907; creating the drainage district; because one must pursue'whatever remedy is provided by law for the redress of his grievances. Green v. Abraham, 43 Ark. 421; Sudberry v. Graves, 83 Ark. 348; Pelt v. Payne, 90 Ark. 601; Sidway v. Lawson, 58 Ark. 122; Johnson v. Richardson, 44 Ark. 372; Vaughan v. Bowie, 30 Ark. 282.
It is insisted that the Legislature did not intend to foreclose the right of appellants to proceed under the authority of the act of 1907, because there was no final assessment for the Legislature to validate; and that there could be no final assessment until all errors had been corrected and all inequalities adjusted. But the Legislature determined these matters for itself, when it conferred jurisdiction upon the Pulaski Chancery Court to wind up the affairs of the district, and to adjudicate the claims against it, and to direct its receiver “to collect upon the assessment of benefits heretofore made a sum sufficient to-pay all claims found to be due, the tax necessary for the payment thereof to be divided into fiye installments, as near equal as possible.” Three months were given for the adjudication of the claims against the district, and it is manifest that the Legislature. having ascertained’ what the assessment of benefits should be, required only that the indebtedness of the district be ascertained, and then, by calculation, that indebtedness should be divided into five installments.
This assessment is based upon prospective benefits, which can not be realized because of the repeal of the acts creating the district, but such assessments may be made. Board of Directors, Crawford County Levee Dist. v. Dunbar, 107 Ark. 285; Davies v. Chicot County Drainage Dist., 166 S. W. 170.
The decree of the court below sustaining the demurrer is therefore affirmed. | [
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Per Curiam.
This is a proceeding, instituted kere, by two judgment-debtors, moving’ tbe court to quash an execution issued by the clerk of this court, on the ground that the judgment has been satisfied. They also ask that assignments of the judgment by the original judgment-creditor, and its assignee, be stricken from the files.
The American Insurance Company was doing business in Arkansas and gave bond, in accordance with the statute, signed by petitioner A. B. Poe and certain others.
The McGrehee Liquor Company sustained a loss under a policy, which was adjusted, and the adjuster gave a draft on the home office in another State, and the draft was endorsed by petitioner; Poe and John B. Driver. Before the draft could be presented for collection, the insurance company became insolvent and passed into the hands of a receiver. The policy holder instituted an action against the company and the endorsers on the draft, and also against the sureties on the bond, and recovered judgment in the trial court against all of them. A supersedeas bond on appeal to this court was executed, and petitioners A. B. Poe and A. J. Graham signed the bond as sureties. When the case was heard here the judgment against the sureties on the original bond of the insurance company, was reversed and the cause was dismissed as to them, but the judgment against the insurance company and Poe and Driver as endorsers of the draft was affirmed, and, judgment was also rendered against Poe and Graham as sureties on the supersedeas bond. American Ins. Co. v. McGehee Liquor Co., 93 Ark. 62.
The petitioners, Poe and Graham, allege in their petition or motion, now filed, that shortly after the affirmance of the judgment -an execution was sued out by the judgment-creditor, but that said execution was paid, either by the American Insurance Company or by one of the sureties on the bond. In a supplemental petition it is alleged that the payment was made by W. B. Calhoun and that the judgment was assigned to him by the plaintiff, and that he assigned it to the German Investment Company. It is further alleged that one of the attorneys for the judgment-creditor, instead of having the execution returned satisfied, “caused the same to be returned unsatisfied, and then proceeded to secure the said McGehee Liquor Company to assign said judgment to the corporation named, the German Investment Company, and that this was done * * * for the purpose of defrauding the petitioner” and preventing him from enforcing his right of subrogation against the sureties for amounts that he had paid out for the insurance company on other judgments. There are other allegations in the motion unnecessary to recite.
The response contains a general denial that the judgment has been satisfied, and contains also denials of the other allegations of the petition except the written assignment set forth therein. But it contains the statement also that, after the case had been appealed to this court and before the reversal of the judgment as to the sureties a writ of execution was issued from the Pulaski Circuit Court to the sheriff of Mississippi County against W. B. Calhoun, and that Calhoun, “to prevent the levy or sale of his property, satisfied said execution and the judgment was assigned to him, * # * as appears upon the margin of the record of said judgment.” The records of this court show the assignment made by the plaintiff to the German Investment Company and the subsequent assignments.
It is argued in the first place that the assignments should be stricken from the files because there is no statutory authority to 'assign a judgment of this court, or to place an assignment upon the files of this court.
It is quite true that there is no statute authorizing an assignment of a judgment of this court, the only statute on the subject of assignment of judgments being one which relates to the assignment of causes of action as well as of judgments rendered thereon. Kirby’s Digest, § 4457.
We have held that that statute has no reference to cases pending in this court. St. Louis, I. M. & S. Ry. Co. v. Hambright, 87 Ark. 242.
But aside from any statute on the subject, the rights of a judgment-creditor can be transferred to another so as to carry the right to enforce the judgment. Such assignment does not vest the legal title in the assignee, but he can enforce the judgment in the name of his assignor. 2 Black on Judgments, § § 940 and 948; 2 Freeman on Judgments, § 421.
A judgment is not negotiable, and, of course, the assignee takes the assignment subject to all the equities between the parties to the judgment. 2 Freeman on Judgments, § 427.
It would not, therefore, be proper to strike out the ■assignments unless it is shown that the judgment has been satisfied. .
There is, as before stated, an allegation in the petition to the effect that the judgment has, in fact, been paid and satisfied; but that is denied, and the record shows an assignment of the judgment by the judgment-plaintiff.
This court has power over its own process, and it would be proper for this court, upon proof of payment of the judgment, to make an order quashing any process erroneously issued thereon. That is not the exercise of original jurisdiction, but is merely the exercise of powers which courts inherently possess in the control of their own judgments and process: 17 Cyc., p. 1135.
That is as far, however, as this court can go, because it would be an exercise of original jurisdiction for this court to attempt to adjust the equities between the sureties on the bond of the defendant insurance company. If there exists any equities between the parties to be adjusted, a remedy must be sought in a court of original jurisdiction. The admission that Calhoun satisfied the execiition issued from the Pulaski Circuit Court and caused the judgment to be assigned' to him, and later, to the German Investment Company, raises a question of fact which relates only to the alleged equities between petitioners and Calhoun and those who claim under him, for the judgment of this court was not rendered against Calhoun. The effect of the admission is merely that Calhoun purchased an assignment of the judgment, and the question whether he had a right to do so is one for investigation in a court of original jurisdiction. It is alleged in the petition that the petitioners have instituted an action in the chancery court of Pulaski County against all of the parties claiming an interest in the judgment, and they are seeking to have the petitioners’ rights of contribution enforced and the judgment stayed until that can be done. The sheriff of Pulaski County, to whom the execution was delivered, is also made a party to that suit.
Now, it would be improper to undertake to decide, in advance, the questions involved in that case; but it is not improper to say at this time that, if á cause of action on behalf of the petitioners to prevent enforcement of this judgment against them be established, the chancery court, acting in personam, has the power to.prevent the enforcement of the judgment, even though it be a judgment of this court. The court can not coerce the officers of this court, but when it acquires jurisdiction of the persons of those who are parties to the judgment, it has the power to prevent them from taking any steps toward the enforcement of the judgment. This, of course, is dependent upon there being a statement of grounds for equitable relief.
The motion of petitioners is, therefore, overruled without prejudice to their rights to seek relief in a court of competent jurisdiction. | [
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Smith, J.,
(after stating the facts). We think the jurors, Wells and Henry, were disqualified, because of the state of their feelings toward the appellant, as shown by the answers given by them upon their examination by the court. Numerous cases have discussed the competency of jurors, and the.effect of these oases is that the entertainment of preconceived opinions'about the merits of a criminal case renders a juror prima facie incompetent. But, if it is shown that the opinion was founded on rumor, and is not of a nature to influence his verdict, this disqualification is removed. Sneed v. State, 47 Ark. 180; Decker v. State, 85 Ark. 64. But while it is true that an opinion based on mere rumor does not disqualify a juror, provided the juror can say upon his oath that he can and will disregard such opinion, and will try the case solely upon the law and evidence, it can not be said, however, that an opinion based upon a rumor can not disqualify. The juror is supposed to stand disinterested between the parties to the litigation, and to be able to make up his verdict solely on the law and evidence; and if he. can not do this, he is not a competent juror, and it is immaterial what the cause may be which prevents him from doing so. _ One might be so impressed with a rumor as to form ah opinion which he would be unable to disregard, and which would enter into his deliberations and conclusions upon the case, and in such cases the juror is dis qualified, and we conclude, therefore, that these jurors were disqualified, and the court erred in holding that they were not.
The defendant exhausted all of- his challenges, and after he had dóne so the State was permitted, over his objection, to challenge three of the jurors who had,been previously selected. It has been held that the -court may, in its discretion, permit the State or the -defendant to exercise peremptory challenges after having accepted a juror; but it has also been held that an election by the State -to challenge a juror, after his acceptance by both parties, must be -exercised before the defendant has exhausted his challenges, and it can not thereafter be done. Williams v. State, 63 Ark. 527.
The action of the court in permitting the State to challenge the jurors, after appellant had exhausted his challenges, was error, calling for the reversal of the case.
It may be true .that appellant was guilty of either murder in the first degree, or that he was not guilty of any crime at -all. But the deceased was the only witness to the killing, and we can not know what part of his story was accepted by the jury, nor what parts were rejected. While the jury under the evidence might have found the appellant guilty of a higher degree -of homicide than -it did, he can not complain of their failure to do so. Roberts v. State, 96 Ark. 58.
For -the errors indicated, the judgment of the court below will be reversed, and the case remanded for a new trial. | [
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Smith, J.
Appellant was .a passenger on one of appellee ’s trains, and was injured as she attempted to alight from the train at her destination. She alleged in her complaint, and offered proof tending to show, that when the train had stopped .at the .station she arose for the purpose of getting off, when, suddenly and without warning, the operatives of the. train carelessly and negligently caused the coach in which she was riding to jerk or bump with great force and violence, whereby she was thrown against a seat in said coach and sustained serious injuries. Appellant testified that she incurred expenses for medical attention in the sum of $45, and that she suffered much pain for a period of four months after her injuries, and one of her symptoms of illness was nausea and a dizziness, accompanied by fever at nights.
At the trial a Doctor Harris was called as a witness on behalf of appellant and testified that he had formerly been appellant’s physician and had attended her in a pro fessional capacity at intervals covering a period of three or four years, and that during this time had treated her for nausea and fever; and he testified that she was always bothered with a sick stomach when she took medicine. The effect of this evidence was to show that appellant had practically the same ailment and symptoms prior to her injury as those she testified about subsequent to her injury. When this witness was interrogated in regard to appellant’s previous illness, appellant’s attorney objected to this evidence, and his objections were overruled, and exceptions were saved at the time. But the objection made was a general one, and the point was not made that the witness was testifying about matters that were privileged.
The case appears to have been submitted to the jury under proper instructions, and the jury returned a verdict for appellant in the sum of $375, and she appealed from that judgment.
Practically the only question urged for reversal of the judgment is the action of the court in admitting the evidence of .the witness, Doctor Harris, over appellant’s objection.
It appears from the evidence of the witness Harris that he acquired the information concerning appellant’s condition while attending her in a professional capacity, and this information was evidently disclosed to him to enable him to prescribe as a physician, and it was therefore privileged. Kirby’s Digest, § 3098; Mo. & North Ark. Rd. Co. v. Daniels, 98 Ark. 352.
But the objection offered to this evidence was a general one, and the attention of the court was not called to the fact that the evidence was within the inhibition of the statute which precludes a physician from disclosing information which he acquired in a professional capacity and which was necessary for him to possess to prescribe as a physician. This evidence was not incompetent, nor was it irrelevant or immaterial, and a general objection to evidence only raises the question of competency or relevancy.
Discussing the method and form of objection to the admission of privileged communications, the rule is stated in 40 Cyc. 2395, as follows: “A party objecting to testimony as involving the disclosure of a privileged communication must indicate the ground of his objection, and a general objection to a question as incompetent, irrelevant and immaterial is insufficient.” Cases are cited to support the text; but as against the rule as there announced the case of Humphrey v. Pope, 82 Pac. 223, is there .cited, as holding that an objection to a question as wholly incompetent, irrelevant and immaterial is insufficient to invoke the inhibition of the Code of Civil Procedure, section 1881, prohibiting the examination of a husband or the wife, as to any communication made by one to the other during marriage. But in this case cited as announcing a rule contrary to the statement contained in the text, the facts were, that in a suit by a wife for the alienation of the affections of her husband, the wife was permitted to testify about conversations she had had with her husband, in the .absence of the defendant in that case. It was contended in that case (Humphrey v. Pope) that this evidence, which related to the relationship between plaintiff’s husband and the defendant, was a part of the res gestae .and .admissible under exceptions to the rule excluding hearsay evidence, and also that the objection was not sufficiently specific to invoke the inhibition contained in section 1881 of the Code of Civil Procedure, which prohibits the examination of a husband or wife, as to any communication made by one to the other during marriage. It was there said: “The latter contention rests on the proposition that the objection should have extended to the competency of the witness. It has been repeatedly held that, where evidence objected to is absolutely incompetent, the general objection is sufficient. And the solution of the question now under consideration depends upon whether the plaintiff’s evidence falls within this rule. We can readily see why an objection to the competency of experts, children under ten years of age, and persons of unsound mind, as witnesses would be nee essary. We Pan also understand why the specific objection, that particular communications between attorney and client, physician and patient, priest and penitent, were privileged, must be urged. But the lips of both husband and wife are forever sealed as to all communications between them during the marital relation, unless consent is shown, or the cause of action falls within the exceptions. Neither spouse can be examined as to such communications, -without the consent of the other, and in our opinion the evidence is incompetent, unless this consent is shown. ”
Thus it appears that, even under the California case a specific objection would be necessary to exclude evidence which was merely privileged. The California code like that of this State renders the husband and wife incompetent to testify for or against each other, except in certain specific cases.
Appellant should have made specific objection that the witness was being interrogated in regard to a privileged communication, and, had this been done, the admission of the evidence would constitute error calling for reversal of the case; but we think that a general objection to the admission of the evidence, -as was made here, was insufficient to raise the question of the privileged character of the evidence.
In the case of Vaughan v. State, 58 Ark. 353, it was insisted that a witness 'had been permitted to state what the testimony of an absent witness had been, at a former trial, without having laid a sufficient foundation for the introduction of this secondary evidence; but only a general objection to this evidence had been Offered at the trial, and in the opinion in that case it was there said: “But if the foundation, as thus laid, was not sufficient, appellant interposed no specific objection to it in the court below. Had the court’s attention been called to it at the time as insufficient, it might have been an easy matter to have had additional evidence on the. subject. This court has often ruled that a general objection is not sufficient except as to competency or relevancy.”
The objection here made was a general one, 'and, while the evidence was privileged, it was both competent and relevant.
The judgment of the court below is therefore affirmed. | [
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Ed. F. McFaddin, Associate Justice.
This appeal involves a claim by a minor against the estate of his guardian. Roy E. Shinley was born on August 14, 1940. In 1946, he became the adopted and only child of A. R. Shinley and Mrs. Mary Lou Shinley, who then lived in the State of Colorado. A. R. Shinley died intestate in Colorado in 1951, and a guardian for the estate of said minor was appointed in Colorado. Mrs. Mary Lou Shinley and the minor son moved to Searcy, Arkansas; in 1952 Mrs. Shinley was appointed by the White County Probate Court as guardian of the estate of her minor son, Roy Shinley; and as such guardian she received from the Colorado guardian the sum of $7,136.04 in cash for her ward. Mrs. Shinley made a bond with personal sureties, who were cited to appear in the present proceedings in the Probate Court. After Mrs. Shinley was appointed guardian by the White Probate Court and received the said amount in 1952, she never filed any petition, report, accounting, or other paper at any time in the White Probate Court as said guardian. Some time prior to June 27, 1960, Mrs. Shinley departed this life testate, and Mollie Ricks was appointed executrix of Mrs. Shinley’s estate.
On June 27,1960, Wilma J. Shinley, as wife and next friend of the minor, Roy Shinley, filed a petition in the White Probate Court suggesting the death of the former guardian, praying that a guardian in succession be appointed for the Estate of Roy E. Shinley: that an accounting be made and judgment rendered against Mollie Ricks, as Executrix of the Estate of Mrs. Mary Lou Shinley, for the amount owed the minor ward. Later, the sureties on the guardian’s bond were brought into the litigation. A guardian in succession was appointed, answers and other defensive pleadings were filed, and in due time, the White Probate Court heard the evidence and rendered a judgment on June 20, 1961, for the estate of the minor and against Mollie Ricks, Executrix of the Estate of Mary Lou Shinley, for the sum of $1,788.06. From that judgment the next friend of the minor (and now the former minor who is of age.) prosecutes this appeal, claiming that a much larger amount is due than the award which was made. Three topics are presented by the appellants, which we combine and discuss in Topic II, infra.
I. Motion To Dismiss. As a preface to her brief filed in this Court on January 6, 1962, the appellee, Mollie Ricks, suggests that the appeal should be dismissed as moot; and she claims that on December 13,1961, the Probate Court of White County entered an order closing the Estate of Mary Lou Shinley and discharging the Executrix. The motion to dismiss is not properly filed here, being only in the printed brief and not otherwise; but even if it had been properly filed, we would deny the motion for several reasons: (a) there might be some question of the personal liability of Mollie Ricks for closing an estate with this appeal pending; (b) the estate may be reopened in accordance with § 62-2912 Ark. Stats.; and (c) if the Estate of Mary Lou Shinley is liable to the appellant, then the sureties on her guardian’s bond are liable to the appellant, and they were before the Probate Court. So there is a real need to settle the issues on this appeal.
II. The Amount Due The Minor. We come, then, to the real question on this appeal, which embraces all three of appellant’s points. A careful review of the record convinces us that the Probate Court was extremely liberal in allowing the minor any amount of recovery; but, since there is no cross-appeal, we cannot reduce the amount awarded. The minor was the only witness in the case. After the death of Mrs. A. R. Shinley, Mrs. Shinley moved to Searcy where the minor attended Searcy Public School in 1952, and entered Harding Academy in 1953, from which he graduated in 1957. As can well be imagined, Mrs. Shinley was a most indulgent mother since this adopted boy was her only child. She purchased a car for the boy at a cost of $2,325.00. He wanted to become an aviator; so she paid for flying lessons for him. The boy determined he would marry, which was against the wishes and better judgment of the mother, but she went with the minor and his fiancee to Mississippi and consented to the wedding, which occurred on November 14,1957. Thereafter, the minor enlisted in the United States Air Force; and on December 14, 1957 (one month after he had married) the boy and his mother had what purported to be a final settlement of the mother’s account as guardian. The minor wrote out a list of the expenses that his mother had paid for him from his estate during her entire period of guardianship. In the record before us it is a four-page typewritten instrument and concludes with these words: £ £ This Statement, prepared by me, Roy A. Shinley, is to certify that I received my legal share of the Estate of A. R. Shinley, my father, deceased.”
The mother must have concluded (though erroneously) that as a matter of law the marriage emancipated the minor in all respects and that the signed receipt cleared her of all liability. But after Mrs. Shinley died, the son, using his wife as his next friend, filed this proceeding against his mother’s estate, evidently because she left him only $5.00 in her will. Of course, the boy was a minor when he signed the receipt and cannot be bound by it; and, of course, the guardian should have complied with the law and obtained prior authorization to expend any portion of the corpus of the estate and should also have filed regular reports of expenditures, all as provided by the Probate Code. (See 57-632 and 57-642 Ark. Stats.) However, in Robinson v. Hammons, 228 Ark. 329, 307 S. W. 2d 857, we decided, that even though under § 57-632 Ark. Stats., the guardian should have obtained prior authorization from the Court before expending for the ward any portion of the corpus of the estate, nevertheless, if the guardian did expend on the ward the corpus of the estate without prior authorization, the Probate Court could approve the expenditures even after they had been made if the guardian could establish to the satisfaction of the Probate Court that such expenditures were reasonable and proper and were actually expended for the ward.
It was in keeping with this holding in Robinson v. Hammons, supra, that the Probate Court proceeded in the hearing in the case at bar. The Court considered all of the expenditures made by Mrs. Shinley from the time of her appointment until the time of her demise and determined which items were proper and reasonable for the minor, disregarding the receipt that the minor had signed. The Court considered reasonable charges for groceries, clothing, board, tuition, drug and doctor bills, band lessons, cash for personal expenditures — -all of these and other items — and the conclusion was reached that the estate of Mrs. Shinley was still indebted to the then minor in the sum of $1,788.06.
It thus appears that the Probate Court gave the minor every penny to which he was entitled, and the judgment is affirmed.
He was a minor on June 20, 1961, when the case was tried and judgment rendered from whence comes this appeal.
She had remarried and had become Mrs. Lytle, but we will continue to refer to her as Mrs. Shinley for convenient identification.
Under § 57-103 Ark. Stats., minority for a male continues until age 21 is attained. Under § 57-643 Ark. Stats., marriage terminates the guardianship of the person but not of the estate of the ward, except with respect to the ward’s earnings for personal services. Mrs. Shinley was the guardian of the estate of the minor, Roy E. Shinley. For the benefit of these interested in the question as to the extent, if any, that marriage may emancipate a minor, attention is called to Harrod v. Myers, 21 Ark. 592, 76 Am. Dec. 409; Watson v. Billings, 38 Ark. 278, 42 Am. Rep. 1; Pace v. Richardson, 133 Ark. 422, 202 S. W. 852; Miller v. U.S., 123 F. 2d 715. See also 31 C.J. 1008 “Infants” § 38; 43 C.J.S. 91 “Infants" § 29; 39 C.J.S. 63 “Guardian & Ward” § 43; and 27 Am. Jur. 748 “Infants” § 5. | [
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Jim Johnson, Associate Justice.
This is an appeal from a Chancery decree granting appellee, Betty LaG-asse, a divorce from appellant, George Autry LaGasse; awarding alimony pendente lite and permanent alimony, and adjudicating property rights between the parties.
Appellee sought the divorce upon the grounds of general indignities, asked for alimony pendente lite, permanent alimony, attorney’s fees, suit money and costs of the action, and further requested that she be awarded her share of all properties and monies owned by appellant. During the course of the litigation in the trial court, appellee caused a writ of equitable garnishment to be issued against appellant’s funds in the Pike County Bank in Murfreesboro wherein he maintained an account. Appellee, by amendment to her complaint, also made appellant’s father, George LaGasse, a defendant in the action in the trial court alleging, inter alia, that appellant’s father had entered into a conspiracy with appellant to defraud her of her property rights by the attempted transfer of appellant’s interest in the LaGasse Lumber Company to his father.
Appellant and his father answered denying collusion but asserting that the transfer was effected in order that a contract with the Louisville Cooperage Company of Louisville, Kentucky, could be fulfilled.
Neither George LaGasse, appellant’s father, nor Pike County Bank have appealed from the Chancellor’s decree.
Appellant argues first that appellee did not state a cause of action for a divorce in her complaint. There is no merit to this contention. The complaint alleged the race of the parties; their marriage; their residence in Arkansas, and stated in some particularity the studied contempt and neglect habitually and continuously practiced by the appellant against the appellee extending for more than a year. The complaint contained other allegations and without detailing all of them, suffice it to say the complaint stated a cause of action. No such question was raised in the lower court.
Next the appellant says that the appellee failed to prove sufficient grounds for a divorce under the Arkansas law. The appellee’s testimony went into detail concerning the indignities that she had suffered and the matter of corroboration will subsequently be considered.
Appellant next contends that the trial court erred in granting a divorce to appellee on her own uncorroborated testimony. Appellee testified to numerous indignities which have occurred since the couple moved to Mt. Ida in 1951 which evidenced a general lack of harmony and compatibility in the home, much of which was brought about by appellant’s excessive drinking. She related that on numerous occasions appellant would stay out all night and her inquiry concerning his whereabouts met with profanity and anger and his answer to her inquiries was “out”; that on three occasions he struck her and when he was drinking he was always in a bad humor and cross and would attempt to pick a fight when he came home. That on the night he left permanently he came home after midnight ranting and cursing and kept it up until 2:30 a.m. and then left. The above testimony is undisputed by appellant and there is some corroboration by appellee’s witness. This Court has adhered to the rule that in an action for divorce a decree will not be granted upon the uncorroborated testimony of one of the parties. Smith v. Smith, 215 Ark. 839, 223 S. W. 2d 776. But the purpose of the rule requiring corroboration is to prevent the procuring of divorces through collusion and when it is plain that there is no collusion, the corroboration may be comparatively slight. Kirk v. Kirk, 218 Ark. 880, 239 S. W. 2d 6. In the instant case the action was contested and there was no manifestation of collusion. We said in the recent case of Anderson v. Anderson, 234 Ark. 375, 352 S. W. 2d 369, quoting the rule which was stated in Morgan v. Morgan, 202 Ark. 76, 148 S. W. 2d 1078:
“It is not necessary that the testimony of the complaining spouse be corroborated upon every element or essential of his or her divorce. It has been said;that since the object of the requirement as to corroboration is to prevent collusion, where the whole case precludes any possibility of collusion, the corroboration only needs to be very slight.”
The next six points relied on by appellant for reversal are:
The trial court abused its discretion and erred in issuing a garnishment order against the funds in the Pike County Bank; the trial court erred, abused its discretion and exceeded its legal jurisdiction in awarding to appellee alimony pendente lite which it found should have been previously awarded to her and in rendering judgment against the appellant for an amount he should have paid without order and while petition and motion therefor was still pending; the trial court’s finding that the appellant and his father entered into a conspiracy to defraud the appellee is not supported by the evidence and the trial court erred, abused its discretion and exceeded its legal jurisdiction in setting aside the lease of the stave mill equipment to George LaGasse; the trial court’s finding that appellee is unable to work and support herself is not supported by the evidence; the trial court’s finding that the appellant is financially able to pay to the appellee $150 per month alimony is not supported by the evidence and the trial court erred in making such award; the trial court erred in awarding attorney fees of $250 against the appellant in addition to the fee to be paid by the appellee without settling the amount to be paid by appellee.
Each of these asserted errors involve a determination of fact by the Chancellor and/or an exercise of his sound discretion. Although divorce cases are tried de novo on appeal, the Chancellor’s findings on questions of fact will not be disturbed unless such findings are clearly contrary to the preponderance of the evidence, the reason being of course that the Chancellor is in a much better position to determine the questions of fact since he is able to view the demeanor of the witnesses and the manner in which they answer questions and to determine their credibility. Coffey v. Coffey, 223 Ark. 607; 267 S. W. 2d 499; Anderson v. Anderson, supra. From the record here presented, we are unable to say that the Chancellor’s conclusions are contrary to the preponderance of the evidence or that he abused his sound discretion.
For the reasons above stated, the Chancellor’s decree is in all things affirmed. | [
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Riddick, J.
The facts in this case are as follows; One Ike Deloney, a justice of the peace, was trying a case in which Bud Sturdivant, a son of appellant, was defendant, and Buck Sturdivant, another son of appellant, was a witness. While Buck Sturdivant was testifying, he made some statement that was offensive to Deloney, and was told by Deloney to shut his mouth, that he, Deloney, would not allow his word disputed. Sturdivant, in reply, told Deloney to shut his own mouth. Thereupon, they began to fight. The defendant, who had been placed -under the rule as a witness, and was about fifteen yards away, seeing the disturbance, and hearing some one say, “Deloney is cutting Buck Sturdivant,” ran up to Deloney, and stabbed him with a knife. The defendant was indicted for an assault with intent to kill, and convicted of an aggravated assault. A judgment for a fine of fifty dollars and one hour in jail was rendered against him.
During the progress of the trial, the court, on motion of the attorney for the State, excluded from the jury the right to consider anything that was said during the trial of Bud Sturdivant, between Buck Sturdivant and witness Ike Deloney, before the fight commenced. Defendant ■ excepted to this ruling of the court, and the ■question here is whether the ruling of the court was a reversible error or not.
Conceding that these words that passed between Buck Sturdivant and Deloney before the fight began were so closely connected with the subsequent fight and stabbing as to constitute part of the res g-estce, and were-therefore admissible in evidence, it does not necessarily follow that the action of the court in excluding them will justify this court in reversing the judgement. This, court will only reverse a judgment of the trial court for errors that are prejudicial to the rights of the appellant.. Fitzpatrick v. State, 37 Ark. 238. The rule followed by appellate courts generally is not to reverse for harmless errors. Elliott’s Appellate Procedure, 632.
It appears, we think, very plainly that these words, whether excluded or admitted, could have had no proper-influence on the verdict of the jury. They were not spoken in the presence of defendant; and, even if they had been, they furnished no excuse or justification for the assault upon Deloney. The defendant did not testify, but some of the witnesses testified that, after the-fight was over, he said to them that he was sorry he had cut Deloney, and “would not have done it if he had not thought he was cutting Buck.” This evidence, and the testimony of the witnesses that one of the bystanders had called out to appellant, “Deloney is cutting Buck Sturdivant all to pieces,” and all the other circumstances that could have furnished any legitimate excuse or justification for the assault on Deloney by the-appellant, or that could have been taken in mitigation of the offense, were allowed to go to the jury. There-was also evidence tending to show that Deloney was stabbed in the back by appellant, and that the assault was made without any considerable provocation, and was of such a nature as justified the jury in finding that the defendant was guilty of an aggravated assault. It was for the jury to judge of the weight of the evidence and the credibility of the witnesses. It appears that the evidence was sufficient to sustain the-verdict. Finding no prejudicial error, the judgment of the circuit court is affirmed. | [
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Mansfield, J.,
(after stating the facts). It is conceded that, the defendant having appropriated the lots in controversy to general railroad purposes by occupying them with its main track and side tracks, the plaintiff could not have maintained ejectment to recover them ; and that this action was simply to recover their value. Such being the nature of the case, it is urged that the plaintiffs could only proceed as upon a complaint in equity to enforce a vendor’s lien; and this, it is said, is the doctrine of Organ v. Railway Co. 51 Ark. 265. But that decision, while it upholds the right to relief in equity on the facts there presented, does not limit the land-owner to an equitable remedy in all cases where his property is taken without statutory proceedings and without compensation ; and the opinion of the court does not undertake to say that such compensation might not, in some cases, be the subject of a recovery at law. The. following extract from the opinion referred to will indicate that the rule stated was not confined to equitable proceedings :
“The right,” said the court, to property taken by a railroad company “can only be acquired by the company by purchase, by adverse possession for the statutory period, or by statutory proceedings for the assessment of damages. The company can only acquire it through the right of eminent domain by making just compensation. Until then, it remains in the original ■ owner. The power to take, and the obligation to indemnify for the taking, are inseparable. But the owner may waive formal condemnation proceedings and all formal modes of transfer, and elect to regard the action of the railroad company as taking the land under the right of eminent domain, and demand and recover just compensation.” Among the cases cited by the opinion in this connection is one in which the Supreme Court of Kansas sustained the right of a land-owner to recover, in an ordinary action, compensation for damages suffered by the wrongful appropriation of his land by a railroad company. Cohen v. St. Louis, etc. R. Co. 34 Kas. 158. But the question as to whether the remedy should be equitable is not raised on this record. The defendant made no motion to transfer the cause to the equity docket, and is not therefore in a situation to complain that it was tried at law. Without regard to the form of the proceeding, the plaintiffs, if they were entitled to' recover at all, were entitled to a judgment for the value of the land ; and this could have been so framed as to vest title to the property in the company.
Although much of the argument of counsel on both sides is devoted to a construction of the condition of the grant to the defendant, neither of the parties appear to have insisted at the trial upon any interpretation different from that found in the court’s charge. No part of the charge was objected to by the plaintiffs, and the defendant’s request is not materially different from the court’s third instruction, as to the effect of the condition. The objection made to the fourth instruction has not been insisted upon, and the only questions to be decided, are, (1) whether it was error to submit to the jury the question of reasonable time, and (2) whether the evidence is sufficient to support the verdict.
Bxcept with reference to some particular classes of cases, the authorities do not lay down any general rule J J ° for determining when the question of reasonable time is for the court, and when it is for the jury. It is always for the court, it seems, when it may be decided by applying some positive rule of law or by the construction of a written instrument. In other cases, whether the ques tion is one that may be resolved without the aid of a jury depends upon the circumstances out of which it arises. Derosia v. Railroad Co. 18 Minn. 133-143; 19 Am. & Eng. Enc. 640-641, note 4, 642, note 2; Starkie’s Ev. 774; Mayor v. East Tenn. etc. R. Co. 9 S. E. Rep. 1129 . The time may be “so short or so long that the -court will declare it to be reasonable or unreasonable as matter of law.” Johnson v. Agricultural Co. 20 Mo. App. 100; Lancaster Bank v. Woodward, 18 Pa. St. 362. .But where the time falls between these extremes, or the motives of a- party are involved, or where the facts are not clearly established, or are such that men of equal •intelligence might draw from them different conclusions, in such cases what constitutes a reasonable time is a ■question to be answered by a jury. Lamb v. C. & A. R. R. and Trans. Co. 2 Daly, 473; Hill v. Hobart, 16 Me. 164; Druse v. Wheeler, 26 Mich. 189; Lancaster Bank v. Woodward, 18 Pa. St. 162.
Leaving out of view for the present the question made here as to the sufficiency of the evidence to establish the plaintiff’s cause of action, we think the court ■did not err in treating this case as one which it was not improper to submit to a jury, and the defendant’s request was therefore properly denied.
But although the reasonable time to be arrived at was not one that could be defined and limited by the mere application of a legal principle' , and was therefore ■one to be drawn, in a general sense, as a conclusion of fact from the evidence, it was so nearly a conclusion of law that a just solution of the question would no doubt have been facilitated by a special finding of facts . A special finding was not, however, requested, and we dis cover no objection to the charge under which the general verdict was returned.
Whether the verdict rests upon evidence legally suf- ~ . . . . . . 1 . . . ficient to support it, is a more embarrassing* question,
In returning whether “ in point of fact ” the time during which the depot was maintained upon the lots was a reasonable time, within the meaning of the court’s charge, the jury were not at liberty to act upon a mere opinion of their own that it was unreasonable ; but it was for them to say whether the time was reasonable in the sense that it gave the plaintiffs “ full opportunity ” to substantially realize the benefits they at the time of the ■donation ‘ ‘ reasonably expected to accrue to them from the location of the depot.” And the issue was such that the plaintiffs were not entitled to a verdict unless they had ■shown, by a preponderance of the evidence, that the time was not, in the sense suggested, reasonable. Their cause of action was grounded upon the alleged fact that the lots had reverted to them; and this reversion they could only prove by showing that the depot had not remained upon the lots for such length of time as amounted to a performance of the condition on which the property was granted. That the proposition on which they relied might be stated in a negative form, namely, that the time was not reasonable, did not relieve them of the burden of proof1 . With more propriety their proposition can be said to be the affirmative one—that the defendant’s right to the lot has been forfeited ; and this they were required to sustain by showing that a greater time was essential to a fulfillment of-the condition subsequent. Unless a forfeiture had occurred, the plaintiffs did not own the depot lots, and, if they did not own them, they had no right to recover their value. Now, it seems to us that the plaintiffs did not make a frima facie case by merely proving that the railway company,'after occupying- the land donated, in the manner required by the grant, for eleven years, had removed the depot from them, and that this removal had rendered the two adjacent lots less valuable for hotel purposes; and yet these facts appear to be subsantially all that the jury could have found, favorable to the cause of the plaintiffs, from the evidence set forth in the abstracts of the record. From these facts, standing alone, it does not result, as a conclusion of law, that the time during which the depot was maintained at its original location was not a reasonable one; for, notwithstanding such facts, it may have been true that all the enhancement of value reasonably anticipated to lots one and two for hotel purposes might have been realized long before the change of location, or may have been received by the plaintiffs on the sale of the property to Belt. It is not shown that lots one and two had any peculiar advantages as a site for a hotel over other lots in the same vicinity, or that they were ever improved or used for that purpose, or were likely to be at the time the depot was removed; and from all the circumstances of the case it is reasonable to suppose that any influence exerted on the value of the lots for hotel purposes by the mere presence of the depot may have been fully developed before they were sold. And if that influence had reached its maximum before the removal of the depot, it does not aid the plaintiffs’ case to show that the removal depreciated the value of the lots, or that they were sold in anticipation of such depreciation, for it still may be true that eleven years had afforded the opportunity for enjoying all the benefits originally expected.
The evidence shows that Fort Smith nearly or quite doubled its population between the date of the depot’s first establishment and the month of September following its removal to a new location. Eleven years, falling within this era of the city’s growth, would seem to be a sufficient period in which to obtain all the benefits constituting the inducement to the plaintiffs’ donation. 2It was a period during which the business of the city moved away from the vicinity of lots one and two, and if there was anything peculiar in the situation of that property, making a longer time necessary to the enjoyment of all the advantages, or benefits, contemplated by the condition of the grant, as construed by the court, it was incumbent upon the plaintiffs to show it.
As the evidence on the part of the plaintiff is, in our opinion, entirely consistent with the proposition that the time in question was in fact reasonable, we cannot hold it sufficient to sustain the verdict.
The judgment is therefore reversed, and the cause remanded for a new trial.
Judge Hughes did not participate.
Wood, J., dissents.
. See Reichert v. St. L. & S. Fr. Ry. 51 Ark. 491.
. See also Luckhart v. Ogden, 30 Cal. 547.
. Starkie’s Ev. 776, 774, and note s.
. Ib. See also Mansf. Dig. secs. 5142, 5143.
. Starkie’s Ev. 774; Luckhart v. Ogden, 30 Cal. 560.
. 1 Whart. Ev. 3S6-3S7; Goodwin v. Smith, 72 Ind. 114.
. Jeffersonville, etc. Railway v. Barbour, 89 Ind. 378; Texas, etc. R. Co. v. Marshall, 136 U. S. 393; Close v. Railway Co. 17 Am. & Eng. R. Cases, 35.
. Railway Co. v. Henderson, 57 Ark. 402; Catlett v. Railway Co. 57 Ark. 461. | [
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Bunn, C. J.
The appellants filed their bill in the Crittenden circuit court, seeking to enjoin the appellee, the Board of Devee Directors of St. Francis Devee District, from the collection of a tax levied by appellee for the purpose of constructing a levee on the west side of the Mississippi' river, within the defined boundaries of the district, and as provided in the act of Feb. 15, 1893, entitled ‘ An act to lay off and establish that part of the St. Francis basin lying within the State of Arkansas into a levee district, and for protecting and maintaining the same, and to incorporate a board of levee directors for said district and for other purposes.” There are also amendatory acts—March 21, 1893, and March 29, 1893. Neither the original act of Feb. 15, 1893, nor the one of March 29, 1893, was signed by the Governor, but went into effect by reason of their having remained with the Governor five days, the general assembly being in session. In the court below the bill was dismissed on demurrer, and the plaintiff appealed to this court.
The first section of the original act, as amended by the act of March 21, 1893, creates a levee district with definite boundaries, and comprises, as the act says, a. part of the St. Francis basin. Within the boundaries are included lands in eig’ht counties. The second section, as amended by the act of March 21, appoints, by-name, three citizens of each of the éig-ht counties levee-directors for the counties, respectively, and provides, that their terms shall be one, two and three years, respectively, in the order in which they are named, and' until their successors are appointed and qualified. This-section, as amended, further provides: “The directors herein named and their successors in office shall constitute, and are hereby declared to be, a body politic and corporate by the name and style of the Board of Directors of the St. Francis Bevee District, and by that name-may sue and be sued, plead and be impleaded, and have-perpetual succession for the purposes hereinafter desig-nated. They may have a common seal, and may make-such by-laws and regulations, from time to time, as. they may deem proper, not inconsistent with this charter and the laws of this State, for the purpose of carrying- into effect the objects of their incorporation ; they may appoint all officers and ag’ents which they may deem necessary and suitable in the conduct of the business of said corporation, and may do all other acts and thing's, not inconsistent with the laws of this State, which may be proper to carry into effect the provisions and objects of this act.” The third section provides-that the Governor of the State shall appoint the successors of these directors, and fill vacancies. The fourth section makes it the duty of said board of levee directors to levee the St. Francis front in this State, with further provisions in detail as to the employment of necessary agents, and to determine the crown, height, slope, grade, etc., of the levee. The fifth section gives the board of levee directors the power, and makes it their duty, “to assess and levy, annually, a tax not exceeding 5 per cent, of the increased value or betterment estimated to accrue from the protection given against floods from the Mississippi river by said levee on all lands within said levee district; ” and provides for the call of a meeting of landowners in the respective counties, at which meeting a proposition to levy said annual assessment shall be submitted to them, and also provides that if a majority of the land-owners are present at said meeting, in person or by proxy, and two-thirds of these shall vote for such assessment, it then becomes the duty of the board of directors to levy the tax. This section further contains provisions in detail concerning the appointment of election ■clerks by the directors, the oath to be taken by the clerks, and the making of the returns of the election to the levee board, a canvassing of the vote by the president and treasurer, and a declaration of the result. It has further provisions with reference to the annual levy of the tax, so long as necessary to effect the object of the act, without any further vote being taken. The sixth section ■declares said board of levee directors to be the leg'al successor of the Levee Board of St. Francis Levee District, ■and entitled to its books and papers, and provides that said board 'shall organize by electing a president, secretary, treasurer and chief engineer, prescribe their duties .and fix their salaries. Sections seven to fourteen, inclusive, contain provisions for the appointment, by the board, of assessors and collectors in each county; the ■duties of such assessors and collectors; fixes the time for annual meeting of the board ; duties of the chief ■engineer ; defines the character of lien created by the •levy of taxes, and provides for its enforcement in the chancery court of the county where the lands lie ; pro vides for a penalty to attach upon delinquency, and that at sales for taxes the lands shall be bought in by the levee board, if not otherwise sold ; that suits shall be in the name of the St. Francis Devee District, and that the several collectors shall make annual settlement with the treasurer of the board of levee directors. The remaining ten sections of the original act provide for giving notice for the letting of the work; for the receipt of sealed proposals; the contracting; for the giving of a bond by the treasurer ; for a per diem of $5 to directors while actually engaged; for acquiring right of way, when not gratuitously given ; for keeping the levee in repair after it is constructed ; for joining with the levee system of the State of Missouri, and for issuing evidences of indebtedness.
The act of March 29, 1893, by its first section, donates to the St. Francis Devee District all lands of the State within its boundaries, except sixteenth sections, and all that the State may acquire therein through forfeitures for taxes within the five years then next ensuing. The second section provides for the sale or mortgage of these lands by the board of levee directors, and execution of deeds by the president in the name of the corporation. The third section exempts the lands so donated from taxation for five years. And the fourth section provides that the district may confirm tax titles, the same as individuals, “providing the president of said levee board shall make a bond to the Governor payable to the State of Arkansas in the sum of $50,000, conditioned upon the faithful and honest appropriation of the aforesaid lands to the building and maintaining of the levee of said district.”
There are several cases on appeal to this court against the appellee board, all involving substantially the same questions, and the decision in the one case will apply to all of them.
The constitutionality of the act of the general assembly organising the St. Francis Devee District, which went into effect by operation of law on the 15th February, 1893, is called in question, and two or more constitutional provisions are alleged by appellants to have-been disregarded and violated in the passage of the act. This of itself suggests the very great importance of this litigation, but a brief reference to general principles involved will serve to emphasise the importance of the subject, and may throw light on the real merits of the-discussion.
The act, if it has any authoritative basis at all, is-an expression of the highest governmental power; and the legislature—-the mouthpiece and active force of the State government—-has expressed no more in the act-than is possessed by the State government. Whatever, therefore, of want of power there is in the act to accomplish the work intended marks also a want of power in the State government. The State government is not one of merely delegated powers, having at every step to account for its actions, and to show its authority for anything it may undertake to do. On the contrary, it is-primarily sovereign in character, and all who would question its exercise of power in any direction must, affirmatively show that it is restricted expressly or by necessary implication in its. own or the national constitution. Hence it is that every doubt arising in controversies of this kind must be resolved in favor of the-legislative enactment. Ex parte Reynolds, 52 Ark. 339; Wilkins v. State, 16 N. E. 193; Hedderich v. State, 101 Ind. 564; Cooley, Const. Dim. (5 ed.) secs. 197, 201; Neal v. Shinn, 49 Ark. 231; Vance v. Austell, 45 Ib. 400; Leep v. Ry. Co. 58 Ark. 407; Penn. Ry. Co. v. Riblet, 66 Pa. St. 164-169; Commonwealth v. Moore, 25 Grat. 951.
The contention of appellants that this act of the legislative department is in violation of the spirit of the constitution of our free government—is subversive of the right of local self-government, the great boast of all the Anglo-Saxon race—does honor to the head and heart of their learned counsel, who so eloquently present this phase of the question. The doctrine of local self-government must ever remain the political faith of every free people, and the expression of that sentiment should ever be a potent sound in every legislative hall. But this is dangerous ground for the courts to get upon. What may be local self-government, what may be inimical to it in any case, and what may be the best method of preserving so precious a boon, are questions about which its votaries most widely differ among themselves, and questions for the determination of which, in our weakness, we have never been able to create an impartial arbiter. The same may be said, negatively, of the oft recounted wrong of “taxation without representation.” The entertainment of these sentiments, as we have said, is honorable to the heart, and the manner in which they are expressed is creditable to the head, of the counsel, but further than this we ought not to go. Our inquiry is not as to what ought to be, but rather as to what is—-yea, more, as to what is written as—the law. Gosnell v. State, 52 Ark. 232; Hedderich v. State, 101 Ind. 564; Commonwealth v. McCloskey, 2 Rawle, 373; Chicago, etc. Ry. Co. v. Smith, 62 Ill. 268; Martin v. Dix, 52 Miss. 53; Cooley, Const. Lim..(6 ed.) p. 200 et seq.
One of the contentions of appellants is that the act under consideration is a local or special act, and that a ' general law would be equally as available to accomplish the end in view ; and therefore that the legislature, in passing this act, disobeyed the mandate of the constitu tion, as expressed in article 5, section 24. The object of the act is undoubtedly a local work in the first instance, and for this reason we may concede that the act itself is a local or special one. This court (and its decisions are supported by the decision of every other court having under consideration the same question, so far as we know) has held that the legislature is the exclusive judge in determining when a general law will not subserve the purpose as well as a special act. There is a line of decision which modifies this statement, to the effect that the legislature has a sound discretion to determine such a question. None, we believe, go further, however, towards rendering legislative- determination questionable in cases like this. Boyd v. Bryant, 35 Ark. 73; Davis v. Gaines, 48 Ark. 384; and authorities in the two cases cited.
It is contended that the legislature cannot delegate . . . the taxing power to any but counties, cities and towns ° r J —its subordinate political and municipal corporations— since the authority to delegate the power is restricted to these by section 23, article 2, of the constitution.
It will be seen at a glance, however, that this section contains no prohibitory expressions whatever. The delegation of the taxing power was not, as will be readily seen, the main object of the section, for the delegation of this power to these corporations had grown to be such a matter of course, and withal was such a conceded right in all government, that the expression in the section was a mere recital of the pre-existing right made in order to give a more noticeable meaning to the restrictions that close the section—the tax limitation.
Nor can the reference to delegation of the taxing power in that section be tortured into an unnatural meaning by coupling it with sec. 27, art. 19, of -the constitution. This last section is connected with no particular preceding section of the constitution; for, as its lan guage shows, it gives authority to the legislature to provide for assessments for local improvements in cities and towns, notwithstanding anything else in the constitution which might otherwise be construed against such a right. We cannot see that the case cited (Little Rock v. Improvement Dist. 42 Ark. 152) supports the contention, because, if we regard the latter section as intended solely to qualify the former, the meaning would be, in •effect, as follows: Taxation by cities and towns may be to the extent of their maintenance and well being, and no further, but nevertheless, beyond this limitation, the legislature may authorize assessments for local improvements within their territories.
We do not see how the State’s inherent right of taxing and delegating the taxing power for public purposes is affected by anything said in these sections, otherwise than as pertains to the affairs of cities and towns and their inhabitants.
But the assessments upon real estate for local improvements has no connection whatever with the general taxing power mentioned, defined and limited in the constitution, and this has been so well settled as really to •require no citation of authorities, much less argument. •Sufficient is it, at all events, to quote from Cooley on Taxation (2 ed.), page 636: “It is safe to assume, as the result of the cases, that the constitutional provisions refer solely to State taxation, or when they go further, to the general taxation for State, county and municipal purposes; and though assessments are laid under the taxing power, and are, in a certain sense, taxes ; yet, that they are a peculiar class of taxes, and not within the meaning of that term as it is usually employed in •our constitution and statutes. They may therefore be .laid on property specially benefited, notwithstanding ■,such constitutional restrictions as have been mentioned.”
We shall not devote much time nor space to the discussion of the power of the State government to provide for public works, in general, nor of the kind contemplated in the act under consideration, in particular. The leveeing of the western bank of the Mississippi river, to prevent the periodical inundation of the lands included in the district, is undoubtedly a local improvement, having for its object, primarily, the reclamation and enhancement of the value of the lands included therein, and, secondarily and consequently, to add to the prosperity, welfare, comfort, convenience and wealth of the whole State. True, the State does not recite in the statute the «objects of the work, in so far as it affects the public, but the legislative department is not such an inferior tribunal as that its acts must necessarily show their object on their face. The presumption will be indulged that the legislature has in every case a proper object in view. Whether it acts under the right of eminent domain, or under the police power, all agree that, unless restrained by express constitutional restrictions, the legislature has full power in the premises. Perhaps, it is safe to say that when the taking of private property for the location of the necessary levees, ditches and drains becomes necessary, the right of eminent domain will be asserted. On the other hand, the work and its costs, within the scope of the benefits, will be attributable to the police power. For a discussion of this matter, and particularly for an able discussion of the nature and application of the police power, we refer to the case of Donnelly v. Decker, 58 Wis. 461, which has become a leading case on the subject. Public works of the kind have been very generally considered as coming within the scope of legislative power. Mayor of Baltimore v. State, 74 Am. Dec. 572, note 590-595; Munn v. Illinois, 94 U. S. 113; Williams v. Mayor, 2 Mich. 567; Egyptian Levee Co. v. Hardin, 27 Mo. 495; Hagar v. Reclamation. District, 111 U. S. 701, 704; Wurts v. Hoagland, 114 U. S. 606, 611; Draining Company's Case, 11 La. An. 338; Anderson v. Kerns Draining Co. 14 Ind. 199; Cooley, Const. Lim. (6 ed.) 627, 633.
The most important question in this case, and the one most difficult of solution, is that raised by the contention that the legislature, in conferring corporate powers upon the appellees, disregarded the inhibition of section 2, article 12, of the constitution. The particular contention is that the inhibition is against conferring corporate powers by special act on public as well as private corporate bodies.
We will not enter upon a construction of that section, to show to the contrary, since, from our view of the case, it makes little difference whether the section has reference solely to private corporations (as we think is the case), or to both private and public corporations, •since, in the latter case, what would be denominated 41 public corporations ” might only be public quasi corporations, at best. In fact, we are inclined to think that, under the latest and best rule of construction, acts of the legislature conferring corporate powers upon mere 'State agencies—bodies of citizens who have no personal or private interests to be subserved, but are simply required by the State to do some public work—are not acts conferring corporate powers, such as are referred to in the constitution.
The principle of construction here referred to is •most frequently illustrated in the instances of counties, -townships, school districts and the like. Counties are ■ordinarily created corporate bodies, in a sense, and yet their corporate powers, in each instance, are necessarily conferred by special acts. They are therefore no longer considered as falling within the inhibitory clause of the constitution. And, if this is necessarily the case with counties, why not with any other agency the State gov ernment may choose to employ in the matters of civil government? The object of the restriction was, evidently, the apprehended abuse of the power conferred-This was the reason of the constitutional restriction. The reason does not exist where the State merely clothes one of its own agencies or instrumentalities with such power. This subject is ably and forcibly presented in Beach v. Leahy, 11 Kas. 23, which was a case wherein the legislature, by special enactment, conferred certain-corporate powers upon a school district. The constitution of that State contained the same provision as ours-against conferring corporate power by special acts, without, however, the exception in favor of educational, charitable, and penal or reformatory institutions. Judge Brewer, in delivering the opinion of the court, said: “Does it (the act) conflict with sec. 1 of art. 12? The question here raised is one of more difficulty. * * * Sec. 24 of ch. 92 of the Gen. Stat. provides that ‘ every school district organized in pursuance of this act shall be a body corporate, and shall possess the usual powers-of a corporation for public purposes.’ The act under discussion is a -special act conferring powers upon this-body corporate which it did not possess before. It seems, therefore, to conflict with the letter of this section. Á critical examination however leads us to the conclusion that this conflict is seeming and not real, or, perhaps more correctly, leaves our minds so doubtful of the existence of any conflict that, according to well settled rules of construction and decision, we must pronounce the-law not unconstitutional.” The court, in that case, held that school districts are merely quasi corporations, because “they are primarily political subdivisions; agencies in the administration of civil government; and their corporate functions are granted to them the more readily to perform their public duties. The legislature have created the regents of the agricultural college, and the regents of the State university, bodies corporate, and given them certain corporate powers ; yet, are they thereby inhibited from special legislation concerning them? Giving corporate capacity to certain agencies in the administration of civil government is not the creation of such an organization as was sought to be protected (prohibited) by article 12 of the constitution.” Continuing, he said : “ The mere fact that these organizations (quasi corporations) are declared in the statute to be bodies corporate has little weight. We look behind the name for the thing named. Its character, its relations, and its functions, determine its position, and not the mere title under which it passes.” To the same effect is the case of State v. Stewart, 74 Wis. 620. The principles announced in these decisions, and thetnumerous authorities cited therein for their support, meet our views on the subject; and the main doctrine therein announced, to the effect that conferring corporate powers by the legislature upon agencies of the State, appointed to perform some public work, in the course of the administration of civil government, in order to the more efficient performance of the duties imposed, is not such an act as is prohibited by the constitution, we think, is founded upon sound reason as well as authority.
Applying the principle to the case at bar, we think the conferring of corporate power by special act upon the Board of Directors of the St. Francis Bevee District is not in violation of the constitution.
It is contended that the act in question authorizes _ . the taking ot property without due process of law. The 8th section of the act requires the assessors to make their assessments between the first Monday in April and the first Tuesday in May of each year; that they shall hold a meeting at the office of the levee board (as provided in section 9) on the second Tuesday in May next after completing their assessments, and then organize and equalize their assessments ; and when this is done, the result shall be the assessment for that year. No special mention is made of contests before either of the boards, or appeals from their decision on the matter of assessment. This fixing of time and place is probably meant to furnish an occasion for the hearing of complaints, etc. The eleventh section provides for suits of foreclosure to collect the taxes levied, and this provision seems to be as full as provisions of the kind usually are in such cases. To our minds, the language of section 8 might have been more specific in regard to the oppor- . tunity and manner of making complaints ag'ainst the assessments, before one or both of these boards, and the minds of those interested might have been freed from all doubt on the subject; but defects of the kind are largely, if not altogether, for the consideration of the legislature; and it may be that they become the less worthy of note, in view of the full opportunity to be heard, as provided in section 11 of the act. Such seems to be the conclusion of the authorities. Davidson v. New Orleans, 96 U. S. 104.
jg contended that appellants’ lands will not be benefited by the proposed levee. This is, ordinarily at least, a question which the legislature has the power to determine, either directly or through its own instrumentality. The question whether any particular tract of land should or should not be included in the list to be burdened with the assessment is not one, in this instance, of absolute or entire inclusion or exclusion, but the solution of it is on the rule of proportion. By provision of this act, the lands in the district are to be assessed according to their real present value, and then according to what they will be really worth after the improvement shall have been completed, and its beneficial effects have been realized; and the difference between these two, is to be the valuation upon which the assessment is to be made. It follows that the value of the benefits is the true basis of the assessment. This being the case, no question as to whether any particular land is now subject to overflow or not is the real question to be solved. A tract within the district may be above overflow without the levee, and yet, in various ways, greatly benefited by the levee. Under the method set forth in the act, if there is no difference between the present value of a tract and the value it is estimated it will have when the levee shall have been made, then there will be no assessment on that tract; and if the difference is small, the assessment will be proportionately small, and so on until the tract which is to receive the greatest benefit is involved, and its assessment will be the highest.
From this statement, it naturally occurs that the issue raised by the pleadings in this case, in this connection, is not one the court can take hold of, and therefore must be determined in favor of the demurrer. The ■amount of the estimated benefits is the sole subject of contest, and when and how this contest should be made is apparent. McDermott v. Mathis, 21 Ark. 60; Cooley, Tax. (2 ed.) pp. 660-4.
There are other questions raised, but they are of minor importance, and, besides, what we have said on the questions herein discussed renders it unnecessary to discuss these minor ones. There may be defects in the act, as there may be in the judgment of those appointed to give effect to the act, but these are not questions addressed to us.
The decree of the court below is therefore affirmed, with costs.
Battle and Hughes, JJ., concur. | [
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Wood, J.
Appellee obtained judgment against appellant for $85, for killing and injuring stock. The record shows: “The defendant, in open court, agreed to admit that the plaintiff’s horse was of the value of $75, and that same had been killed as alleged, and that plaintiff’s mule was struck by defendant’s train at same time and place, and damaged to the extent of ten dollars, and offered to take the burden of proof. Thereupon, without objection, defendant proceeded to pass upon the jury; and, having passed upon same, plaintiff also passed upon the jury, and, also without objection from plaintiff or his counsel and under the direction of the court, defendant proceeded to state his cause to the jury ; and thereafter plaintiff by counsel stated his cause to the jury. Thereupon defendant, without objection of plaintiff, and under the direction of the court, introduced its proof.” And, after the proof was in, the record recites that “the attorney for the railway company asked leave to make the opening and concluding arguments to the jury, but the court refused to allow him to do so, and ruled that the attorneys for the plaintiff were entitled to open and conclude the argument ; to which the defendant by attorney at the time excepted.” This is the last ground of the motion for new trial.
1. The admission of appellant upon the record was equivalent to an abandonment of that part of his answer denying the killing. The injury being admitted, the law makes it prima facie negligent. L. R. etc. Ry. v. Henson, 39 Ark. 413. The appellant having also admitted the extent of the injury, had no proof been introduced, the verdict should have been for appellee, i. <?., the appellant would have been defeated. Mansf. Dig. 2871. After the appellant, under the direction of the court, and by the acquiescence of the appellee, had taken the initiative in passing upon the jury, stating the case and introducing the proof, there should not have been a “change of front” at the critical moment when it expected the only reward for its admission, to-wit: the right to begin and conclude the argument. Mansf. Digest, sec. 5131; Rogers v. Diamond, 13 Ark. 474-79.
2. A witness was asked : ‘ ‘ Have you noticed how far a head light throws a light forward to the right and left?” and answered, “Yes, somewhat.” “How far does it throw a light forward, and how wide a space does it light? ” Ans. “It would throw a light about 100 yards in front, I think, and cover a space from fifty to 100 feet wide, I suppose. I never was on an engine at night. The closer the engine, the narrower the light, I suppose; and the further from it, the dimmer. The light is concentrated ahead, and does not fall on the track close to the engine.” The admission of this testimony is assigned as error. We can see nothing in the distance or range of the reflection of light by the head light of an engine calling for the exercise of peculiar skill, the possession of professional knowledge, or requiring any peculiar habit of study in order to qualify a person to understand it, and to testify about it intelligently. The witness was testifying to matters of fact which he says he had observed, and about which men of common understanding might be informed upon observation. Any person cognizant of the facts upon which he bases his judgment may give his opinion on questions of identity, size, weight, distance and time. Such questions are open to all men of ordinary information. The evidence is competent. Its weight is for the jury. 1 Green-leaf. Fv. sec. 440, note a; Com. v. O'Brien, 134 Mass. 198; 1 Smith’s Lead. Cas. 286, note.
3. The court did not err in refusing requests for instructions. It had declared the law correctly upon the propositions which appellant asked, since the killing was admitted, and repetition was unnecessary and improper. For the error in denying appellant the right to open and conclude the argument, the judgment is reversed, and cause remanded. Tobin v. Jenkins, 29 Ark. 157; Mann v. Scott, 32 ib. 593. | [
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Smith, J.
Appellants were plaintiffs below, and alleged the following facts in their complaint: That they were citizens and taxpayers of School District No. 64 of Lawrence County, Arkansas, and interested in the educational interests of that district, and that appellees, who were defendants below, were school directors of said district, and as such had control of the schoolhóuse and grounds, and that school was being taught in the school building, all of which was needed for the accommodation of the children attending school. That the said directors, notwithstanding that fact, are about to lease a part of said building to the Independent Order of Odd Fellows, as a lodge hall, and are about to cause said building to be remodeled without right or authority from the voters of said district, by causing the stairway to be moved and other changes to be made, and that if such changes are made it will entirely unfit the building for the use for which it was originally designed, and will make the same totally unfit for use as a school building.
That the use of said building as a lodge room is entirely inconsistent with its use as a school, and will interfere with the use and enjoyment of the other rooms of the building as school rooms, and will cause great and irreparable injury to the public and'nnterfere with the educational interests of said district.
Plaintiffs prayed that said directors and all other persons be forever enjoined from changing or altering said building in any way, without first submitting the plans thereof to the voters of said district, and that said directors be enjoined from leasing any part of the building to any person, for any purpose whatever, except for the conduct of schools.
The 'answer denied that the directors were about to make any change in the building, which was detrimental to it, or any contract or lease with reference to the use of the building, which would in any way interfere with the school being taught therein.
There was offered in evidence a contract dated December 27, 1911, made between representatives of the local Odd Fellows Lodge and the directors of the district, under the terms of which for the consideration of $50, to be paid on or before October 1,1912, the directors rented to said lodge -the upper part, or 'Second story, of the school building for the use of said lodge, for a term of one year from January 1, 1912, with an option to renew said lease for a period of five years. The school district, however, reserved the right to use the building for school exhibitions and entertainments of its own.
At the annual school election in May, 1912, the directors caused the question of the ratification of this lease to be submitted to the electors voting at that election, and it was ratified by a vote of nineteen for, and one against.
It appears that the revenues of the district had been insufficient to provide the necessary funds for school purposes, and subscription lists had been circulated upon which private contributions were asked for school purposes. The evidence was conflicting as to the interf erence with the school on account of this lease, and of the damage to the building in adapting it to the uses of the Odd Fellows. But the court found the fact to be that no damage was occasioned to the said school building by reason of the changes made in the building by the Odd Fellows Lodge, and that no interference had resulted, or would result, to the school being taught, or that would thereafter be taught in. said building, by reason of the upper story thereof being used as a lodge room, and that the plaintiffs’ complaint should be dismissed for want of equity.
Wé think this finding was not contrary to the preponderance of the evidence.
Appellants cite us to section 7643, of Kirby’s Digest, which provides that directors may permit a private school to be taught in the district schoolhouse during such time as the said house is not occupied by a public school, unless they be otherwise directed by a majority of the legal voters of the district, and contend that the express granting of power for this purpose is in effect a denial of power to let it for any other purpose. But we do not agree with that contentioil. Section 7614, of Kirby’s Digest, provides that the directors shall have charge of the school affairs and the school educational interests of their district, and shall have the care and custody of the schoolhouses and grounds and property of the district, and shall carefully preserve same, and gives to them authority to purchase or lease a schoolhouse site and to rent, purchase or build a schoolhouse with the funds of the district. ■ And this section vests them with the duty and discretion of making the most advantageous arrangements possible, within the powers conferred, for the interest of the district. In the case of Boyd v. Mitchell, 69 Ark. 202, this section was construed to give school directors the right to prohibit the use of a school building for religious worship, where it was shown the building and contents were being injured, notwithstanding the land on which the school building wás situated was conveyed to trustees for the purpose of religious worship, and was by them conveyed to the school directors for the same purpose, and the building was erected in part by subscriptions, with the understanding that it was to be so used under the charge of the directors. The court pretermitted any discussion of the power of the directors to make any arrangement to build a house to be used as a schoolhouse, and also as a church or as a place for re ligious worship, as it found, under the facts in that ease, that the schoolhouse was, when built, to be under the control of the directors of the school district and the property of said district, and after so finding the facts to be, it was there said: “If it was to be under their control, in contemplation of law it was within their province, and' was, perhaps, in strictness, their duty, not to allow it used for purposes other than school purposes. It seems that this is apparent. They have no powér beyond those expressly granted or arising by necessary implication.” The court found in that case that the schoolhouse was being damaged by the use which was being made of the building, and that the directors in the exercise of their power of control, and their duty to preserve the property of the district, had the right to prohibit the use of the schoolhouse for religious purposes, and that this was true notwithstanding the individual contributions which had been made, and which were used in erecting the schoolhouse, upon the understanding that the house was to be used as a schoolhouse and for religious worship.
So here, we should not hesitate to hold that the contract was void, if its performance interfered with the school. But the chancellor has expressly found that such was not the case. The electors of that district, who were the patrons of that school, voted for the ratification of the contract, and in their depositions made it appear, by a preponderance of the evidence, that the schools were not being interfered with nor the building damaged, Upon the contrary, the revenues of the district were being sup-' plemented by the annual rental in the sum of $50, and under the circumstances we think the contract was not an unlawful one, nor void as being against public policy. Of course, the district could not divert its funds for the purpose >of building or providing lodge rooms for any association or society, however benevolent its purposes might be, neither would the directors have the right to make any contract which authorized the use of the school property in a manner which interfered with the schools. But as has been stated, that was not done in this case.
It is a matter of common knowledge that many quasi-public uses are made of the rural school buildings of the State. We do not believe it was the purpose of the Legislature in granting express authority for private schools to be taught in the public school building, to exclude other uses where such uses do not interfere with the schools nor injure the buildings.
We think the decree of the chancellor is correct, and it is affirmed. | [
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Riddick, J.
The questions to be determined in this case arose in an action of replevin brought by the appellee, the Adler-Goldman Commission Company, a corporation organized under the laws of Missouri, against O. C. Wood, the sheriff of Bogan county, to recover a stock of merchandise, store fixtures, etc., which said sheriff had seized as the property of Oppenheimer & Co., under writs of attachment against them. The appellee claimed to have purchased said property and certain lands from Oppenheimer & Co. for the consideration of eight thous- and and five hundred dollars, which sum it placed as a credit on the indebtedness of Oppenheimer & Co to them. Oppenheimer & Co. were insolvent, and, before said credit was entered, were indebted to appellee in a sum amounting to over fifty thousand dollars, in addition to indebtedness to other parties. On the same day that the bill of sale for the property in controversy was executed, Oppenheimer & Co. executed another instrument in which, after reciting that they were indebted to appellee in a large amount, they say : “And also for the further consideration that the said Adler-Goldman Commission Company agree to pay the following named parties, to whom we are justly indebted as per amount set opposite their names: (Here follows a list of certain creditors and amounts due them). Now, therefore, for the purpose of securing the same, we hereby transfer to the said Adler-Goldman Commission Company, by way of pledge, the choses in action described in the schedule hereto annexed ; also twelve hundred and sixty-one bales of cotton now in their hands and in transit, consigned to them, said cotton to be sold by them in the usual way within thirty days from this date, and the net amount, after deducting usual expenses, to be credited to above indebtedness. If, after thirty days from this date, any of said choses in action should remain uncollected, and any of our debts unpaid, we hereby authorize the said Adler-Goldman Commission Company to sell said choses in action at public sale for cash at the front door of our store house in the town of Paris, Arkansas, after giving ten days notice of the time, place and terms of sale, by advertisement in some newspaper published in the county of Logan, Arkansas, or by written or printed notices posted in at least ten conspicuous places in said county, and out of the proceeds of said sale the said Adler-Goldman Commission Company shall pay our debts due them as above, so far as said proceeds will extend, rendering the overplus to us. Witness our hands this 11th day of January, 1892. (Signed) Ike Oppenheimer, S. Stern-berg, of the firm of Oppenheimer & Co.”
Appellant contends that these two instruments—the bill of sale of the property in controversy and the transfer of the cotton and choses in action—having been executed on the same day, and for the purpose of carrying out a preconceived intention, must be construed together, and that they amount in law to an assignment for the benefit of creditors, and are void because not made in conformity to the statute. Conceding that -these instruments must be construed together, as part of the same transaction, the question for this court to determine is whether, when thus construed, they constitute an assignment for the benefit of creditors.
By the term “voluntary assignment” is meant a conveyance of some or all of a debtor’s property in trust for the purpose of being disposed of by the trustee to raise a fund to pay debts, as distinguished from a sale to a creditor in payment of his claim, and from a pledge ■or hypothecation as a security, in the nature of a mortgag-e. Anderson’s Dictionary of Law, 83; Dias v. Bouchaud, 10 Paige, Ch. 461.
“To constitute an assignment, the property must be conveyed absolutely to raise a fund to pay debts.” Richmond v. Mississippi Mills, 52 Ark. 30.
One of the conveyances mentioned above purported to be a bill of sale of the stock of merchandise and chattels in controversy, in part payment of the debt due from Oppenheimer & Company to appellee. The other purported to be a pledge of certain choses in action and bales of cotton to secure the remainder of the debt due appellee, and also for an additional sum which, in consideration of the making of such pledge, appellee agreed to pay to certain creditors of Oppenheimer & Company. Oppenheimer & Co. had refused to make these transfers until appellee expressly agreed to pay these sums for them to the creditors designated. Having agreed to pay these sums as an inducement and a consideration for these conveyances, after they were executed, appellee was in the same position as if Oppenheimer ■& Co. had paid it so much money for the use and benefit of the creditors. The statute regulating assignments for the benefit of creditors was not intended to prevent embarrassed creditors from selling property to pay debts, nor from mortgaging or pledging it for that purpose. A debtor, when he has pledged, mortgaged, or sold his property to obtain money to pay debts, may, if he chooses, allow the lender of the money to distribute the fund among the creditors, provided the transaction is free from any dishonest intent. Although, in such a case,r,|the lender would hold the fund in trust for the creditors, and could be compelled to perform the trust, the statute regulating assignments for the benefit of creditors would not apply, for the reason that, in such a transaction, there would be no conveyance of property in trust for the purpose of being disposed of by the trustee to raise a fund to pay debts, and, without such a conveyance of property in trust for the purpose of being disposed of by the trustee, there is no assignment. It is only where property is conveyed to another in trust to be disposed of by him for the purpose of raising a fund to pay debts that the statute applies and undertakes “to regulate, direct and secure a performance of the trust.” Burrill on Assignments, (6 ed.) 24.
In the case at bar, the property was not conveyed or delivered to appellee to be disposed of for the purpose of raising a fund to pay creditors, nor to be held in trust for creditors. A portion of it was sold to appellee in part payment of its debt, and the remainder delivered as a pledge to secure the balance of the debt due appellee, including the sums it had assumed and agreed to pay other creditors. After appellee had received the property, under this agreement, the creditors whose debts he had assumed could have enforced the agreement by an action at law to compel it to pay the sums of money it had agreed to pay, which sums would be treated as a fund received by appellee for the use and benefit of these creditors. Keller v. Ashford, 133 U. S. 610; Mellen v. Whipple, 1 Gray, 322; Carnegie v. Morrison, 2 Met. 381; 1 Parsons on Contracts (8 ed.), 468, and authorities cited.
The rig-ht of these creditors to recover was not limited to the property pledged or its proceeds; and that this was the understanding of the parties is shown by the action of appellee, for it paid the assumed debts at once, without waiting to dispose of the property.
It is a general rule of law that no one can sue on a contract to which he is not a party, but there are exceptions to the rule. The cases from the Supreme Court of Pennsylvania, cited by counsel for appellant, only lay down the exception mentioned above—that when one receives money or property upon a promise to pay the debt of a third person, such person can maintain an action on such promise. “ These cases,” say the court in Delp v. Bartholomay Brewing Co. 15 Alantic Rep. 871, “are cases in which the third person, although nota party to the contract, may be fairly said to be a party to the consideration on which it rests.” In that case Delp received from Bingham & Spencer, proprietors of the Hotel Albemarle, its entire stock and assets, under an agreement that he would pay the debts of said Bingham & Spencer. One of the creditors brought an action on this promise, and it was sustained. The court, speaking of Delp, said “he assumed the payment of these debts, and the property was put into his hands for this express purpose. Whether thereby a technical trust was created is not material. It has always been held that the creditor in such a case has a right of action to compel payment in accordance with the agreement.” Although it may be true that cases can be found holding that, where property is conveyed to one under promise that he will pay the debt of another, he will be treated as a trustee until he performs his promise and pays the debt, yet such transfers do not come with the meaning of our statute of assignments, unless the conveyance is made to the grantee for the purpose of having him dispose of the property to raise a fund to pay debts.
In the case of one who sells property to another upon the consideration that he will pay certain debts of the vendor, the transaction, if without fraud, is distinguished from an assignment by the fact that the title passes absolutely to the vendor, and, after he pays the debts, there is no resulting trust in favor of the vendor for the residue of the property, or its proceeds, as there always is in cases of assignment. When one pledges or mortgages property to another for the purpose of securing a debt, or to obtain money to pay a debt, it is distinguished from an assignment by the fact that a beneficial interest remains in the mortgagor or pledgor, and he has the right to redeem, and an assignor does not have. These distinctions are elementary, and may be found in Burrill on Assignments, or any other text book on the subject of assignments, with authorities collated. In the case of Goodbar v. Locke, 56 Ark. 315, a pledge of choses in action for the benefit of certain creditors was held not to be an assignment. Justice Hemingway, who delivered the opinion of the court, said : “As the debtors were not by the terms of the instrument divested of the beneficial ownership, it was not an assignment; and, although the debtors may have had no reasonable hope of paying the debts and retaking the collaterals, the property remained in them, and could be reached by unsecured creditors as other equitable assets may be.”
In the case at bar the right to redeem within thirty days remained to Oppenheimer & Co. in che property pledged.
Some of the cases from the supreme court of Ohio, cited by counsel for appellant, may seem to hold that such transfers as those umier consideration would, in that State, constitute an assignment for the benefit of creditors, but those cases are, to a certain extent, governed by a statute of that State which, in effect, provides that all conveyances by debtors to trustees in contemplation of insolvency, with the intention to prefer one or more creditors, shall be held to inure to the benefit of all the creditors in proportion to their respective demands. All conveyances coming within the meaning of this statute are held in Ohio to be assignments, and the property conveyed inures to the benefit of all the creditors. Bagaley v. Waters, 7 Ohio St. 359, where the statute is quoted.
delivered July 14, 1894.
After a due consideration of the matter and of the authorities cited by the learned counsel for appellant, we feel convinced that this pledge was made, not to secure the creditors named in the instrument, but to secure the debt due appellee, including the sums assumed by him; that a right of redemption remained in Oppenheimer & Co. after the execution, and that these instruments, whether construed separately or together, are not conveyances in trust for creditors, within the meaning of our statute regulating voluntary assignments.
In the absence of any evidence tending to show a fraudulent intent, the determination of this question disposes of the case, and we deem it unnecessary to discuss the other point raised. The judgment of the circuit court was, in our opinion, right, and is therefore affirmed.
Judges Battle and Hughes concur in the judgment, but not in the reasons given. | [
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Battle, J.
This is an action-of ejectment for the recovery of a small part of lot 11 in block 22, in the town of Eorrest City, the width of which is 20 inches. The defendant owns the adjoining lot. One of the grantors, nnder whom she holds it, built a house on it, and in building extended it over on lot 11 about 20 inches. There is no evidence that he, the builder of the house, or any ■one claiming under him, ever held any written evidence of title to lot 11 or any part of it. Plaintiff says he built the house on the 20 inches through mistake, and with no intention of claiming or holding it. The defendant, on the other hand, says that she is entitled to, and does hold, it by virtue of adverse possession thereof held by her and her grantors for the statutory period. The documentary evidence read at the trial shows that the title was in the plaintiff and his grantors. Evidence ■was also adduced which tended to prove the claim of the defendant by adverse possession. The court instructed the jury that if they found from the evidence that the defendant, and the grantors under whom she claims, held ■open, notorious and adverse possession of the land in controversy for seven years before the commencement of this action, the plaintiff could not recover, and to find for the defendant. The jury found for the defendant, and the plaintiff appealed.
The only question of law in the case is', what possession was necessary to enable the appellee to hold the land in controversy? We shall not, in answer to this ■question, attempt to review the numerous cases in which courts have decided similar questions, but shall state our own views, and cite some of the cases sustaining them.
Where land belonging to one of two coterminous proprietors is inclosed or built upon by the other, the intention with which the possession was taken and held is important in determining what rights, if any, were thereby acquired. No right or title can be gained against the owner by mere possession. To bar an action for the recovery of the land so held the possession must be actual, open, continuous, hostile, exclusive, and be accompanied by an intent to hold adversely and “in derogation of,” and not in “ conformity with,” the rights of the true owner, and must continue for the full period prescribed by the statute of limitations. There must be an intention to claim title. If one of two adjacent owners inclose or build upon his neighbor’s land, “through mere inadvertence or ignorance of the location of the real line, or for purposes of convenience, and with no intention to claim such extended area,” as said by the court in Alexander v. Wheeler, 69 Ala. 340, “ but intending to claim adversely only to the real or true boundary line, wherever it might be, such possession would not be adverse or hostile to the true owner.” But it would be, if he inclosed, or built upon and held, the land under the belief and'" claim that it .was his own, even though the claim of title was the result of a mistake as to the boundaries of his own land. “ In such-a case,” as said in Alexander v. Wheeler 69 Ala. supra, “ there is a clear intention to claim ” the land occupied or inclosed, “and the possession does not originate in an admitted possibility of mistake.” Brown v. Cockerell, 33 Ala. 45; Alexander v. Wheeler, 69 Ala. 340; Abbott v. Abbott, 51 Me. 584; Hitchings v. Morrison, 72 Me. 333; Ricker v. Hibbard, 73 Me. 105; Ayers v. Reidel, (Wis.) 54 N. W. 588; Hamilton v. West, 63 Mo. 93; Walbrunn v. Ballen, 68 Mo. 164; Bunce v. Bidwell, 43 Mich. 546.
In the case at bar, there was evidence adduced at the trial which tended to show an intention to hold the land in controversy adversely, and that the possession of the appellee was in other respects sufficient to bar the appellant from recovering the land.
Judgment affirmed. | [
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Wood, J.,
(after stating the facts). The sole issue was the ownership of the property. Appellant offered to prove that Atherton, after the day of the alleged .sale and delivery, claimed the mule as his own, fixed a price upon her, and offered a number of times to sell her. This testimony was rejected, and the ruling of the court in that regard is the only question for our consideration.
The general rule that the declarations of the grantor cannot be admitted to impeach the title of the grantee is well understood, and has been recognized by this court in a number of cases. Gullett v. Lamberton, 6 Ark. 109; Brown v. Wright, 17 id. 9; Clinton v. Estes, 20 id. 216; Finn v. Hempstead, 24 id. 111; Smith v. Hamlet, 43 id. 321. But where there has been no change of possession, and the transfer is alleged or shown to be fraudulent, or where there is such doubt of the delivery of the property as would justify a jury in saying there was no completed sale, in such cases the after-declaration's of the vendor in possession are admissible. These are well settled exceptions to the general rule. See Bowden v. Spellman, ante, p. 251, and authorities there cited (where fraud was charged and shown). See also Pier v. Duff, 63 Pa. St. 63, where it is said : “The possession is a fact, and how it is held is a fact, and this may be shown on the same grounds upon which mere hearsay is permitted, when it forms a part of t-he res gestee.” Helfrich v. Stern, 5 Pa. St. 143; 1 Greenleaf, Ev. sec. 109; 2 Whart. Ev. sec. 1166.
The testimony offered tended to characterize the transaction between appellee and Atherton. It was material to the issue. Its rejection was prejudicial to appellant, and for this error he is entitled to have the judgment reversed and cause remanded. So ordered.
Hughes, J., dissents. | [
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Carleton Harris, Chief Justice.
Minnie Warren filed an action against Arkansas Motor Coaches in the Circuit Court of St. Francis County, seeking to recover monetary damages for personal injuries suffered because of the alleged negligence of the bus company’s driver. Sixteen interrogatories were addressed to Arkansas Motor Coaches. The company answered the first five interrogatories, objected to numbers six through twelve, then proceeded to answer the balance. A motion was then filed by counsel for Minnie Warren asking that the company be ordered and directed to answer the interrogatories which they had refused to answer. On hearing, the court sustained the defendant’s objection to interrogatories No. 7, No. 8, No. 9, No. 11 and No. 12, but defendant’s objection to plaintiff’s interrogatory No. 10 was overruled “to the extent that Defendant should be required to furnish to the Plaintiff copies of statements obtained from witnesses, including the parties, now in Defendant’s possession.” Arkansas Motor Coaches has petitioned this Court for a Writ of Prohibition, maintaining that the order of the court directing that statements obtained by petitioner be furnished Minnie Warren exceeds the power and jurisdiction of the Court; that the order will have to be complied with unless this Court intervenes by issuance of Writ of Prohibition, and that to comply with said order will cause irreparable injury and damage to petitioner, which cannot be corrected as a practical matter on appeal.
Minnie Warren likewise seeks a Writ of Prohibition, stating:
“Petitioner alleges that the issuance of a Writ of Prohibition in this case is proper because the Circuit Court has exceeded its authority in failing to require Arkansas Motor Coaches, Defendant in said Circuit Court to respond to Interrogatories No. 7, 8 and 9. There is no other remedy that will afford the Petitioner protection against the wrong.”
The cases have been consolidated for hearing.
Actually, both sides are endeavoring to present to this Court for determination the scope and extent of the discovery statutes, Arkansas Statutes 28-348 et seq. Petitioner, Arkansas Motor Coaches, states that the petition raises three questions.
“1. Is prohibition the appropriate procedure under the facts in this case;
2. May the trial court order the witnesses’ statements on bare interrogatory; and
3. To what extent are witnesses’ statements, obtained for the purpose of assisting counsel in his preparation for a case, protected from the discovery rules?” We recognize that the question of the proper utilization of discovery procedures has not been developed to a great extent in this state; in fact, though our Act was passed in 1953, there are no Arkansas cases bearing on the question of when, or under what circumstances, statements of witnesses are subject to pretrial disclosure, production, or inspection. Nonetheless, though we recognize the exigency of a guidepost for attorneys and courts, we are unable to answer questions two and three, listed above, for question number one is quickly answered in the negative.
Petitioners are contending that the Circuit Court acted in excess of its jurisdiction (rather than lacking jurisdiction), but the Writ of Prohibition cannot be used as a substitute for appeal. In H. B. Deal & Co., Inc. v. Marlin, Judge, 209 Ark. 967, 193 S. W. 2d 315, this Court quoted from 42 Am. Jur. 165, under the topic “Prohibition”, as follows:
“It is the universal rule that mere error, irregularity, or mistake in the proceedings of a court having jurisdiction does not justify a resort to the extraordinary remedy by prohibition, and that a writ of prohibition never issues to restrain a lower tribunal from committing mere error in deciding a question properly before it ; or, as it has sometimes been said, the writ of prohibition cannot be converted into, or made to serve the purpose of an appeal, writ of error, or writ of review to undo what already has.been. done. This is true both because there has been no usurpation or abuse of power and because there exist other adequate remedies. Thus, when jurisdiction is clear, an erroneous decision in ruling on the sufficiency of the petition or complaint or on a motion to dismiss, or on matters of defense, or in rendering judgment, is not ground for a writ of prohibition.”
Also, in Vale, Admr. v. Huff, Judge, 228 Ark. 272, 306 S. W. 2d 861, we held that an order for discovery is interlocutory and not appealable, and a writ of prohibition will not lie.
Writs denied.
These interrogatories, in general, dealt with such matters as the names, addresses, and telephone numbers of witnesses, and their employment. Similar information was sought relative to agents or private investigators who investigated the casualty; also information relative to the reports of investigations that had been prepared, and photographs, charts, or drawings made on behalf of defendant. | [
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Battle, J.
The sale of wine in this state without license is regulated by an act entitled “An act to regulate the sale of wine in the state of Arkansas,” approved April 3, 1889, which, as enacted, is, in part, as follows :
“Section 1. That it shall be unlawful for any person to sell wine at any place in this state except as authorized in this act.
‘ ‘Section 2. Any person who grows or raises grapes or berries may make wine thereof, and sell the same upon the premises where such grapes or berries are grown and the wine made, in quantities not less than one quart; such person may also sell the wine of his own make in any place where the sale of intoxicating liquors is licensed and authorized by law, in quantities not less than one quart. Provided, This act shall not authorize the sale of wine in any district or locality where its sale is prohibited under special act of the general assembly.
“Section 3. Nothing in this act shall prevent regularly licensed liquor dealers from selling wine at the same places they are authorized to sell liquors.”
Under this act any person who grows or raises grapes or berries, and makes wine thereof, is permitted to sell the same in any quantities not less than one quart, without license, upon the premises where the grapes or berries are grown and the wine made, and in any place where the sale of intoxicating liquors is licensed and authorized by law.
The constitutionality of the act was contested in State v. Deschamp, 53 Ark. 490. The indictment against Deschamp in that case, omitting caption, was as follows : “The grand jury of Scott county, in the name and by authority of the State of Arkansas, ¿ccuse LineDeschamp of the crime of selling wine unlawfully, committed as follows, viz : The said Line Deschamp on the 3d day of August, 1889, in the county, of Scott aforesaid, unlawfully did sell one quart of wine, the said sale not being made upon the premises where the grapes and berries were grown and the wine made, and said sale not being made in any place where the sale of intoxicating liquors .are [is] licensed and authorized by law, against the peace and dignity of the state of Arkansas.” A demurrer to the indictment was filed and sustained, and the defendant was discharged.
The indictment was based upon the act of April 3, 1889. In passing upon its sufficiency, it became necessary to determine whether the act upon which it was based was constitutional. The court held that the effect of it was to allow any person growing or raising grapes or berries, and making wine thereof, to sell the same within the three-mile districts formed under section 4524 of Mansfield’s Digest, if the premises upon which such grapes or berries were grown and the wine made were in such districts, and to prohibit the sale in the same districts of wine made of grapes or berries grown out of this state. This was the joint effect of the act and section 4524, which prohibited the sale of wines, spirituous or intoxicating- liquors by any one within such districts.
The result was, we found the act was unconstitutional, to the extent the joint effect of it and section 4524 was as stated, and eliminated so much of the act as produced this effect by striking- out the words, “at any place,” in the first section, and the words, “upon the premises where such grapes or berries are grown and the wine made,” in the second section, and held the remainder of the act constitutional.
The judgrneut of the circuit court sustaining- the demurrer to the indictment was affirmed by this court, but upon what grounds was not stated. But they are apparent. In the first place, the indictment was based on the second section of the act, and did not show that the wine sold was not made out of grapes or berries grown by the defendant, or, if it was, that the sale of intoxicating- liquors were not licensed and authorized by law at the time and place it was sold. Wilson v. State, 35 Ark. 414, 416. In other words, it failed to show that he was affected by the second section ; and, in the second place, did not alleg’e that he sold the wine without license, and, therefore, was not entitled to the benefit of the third section of the act. State v. Keith, 37 Ark. 96.
In Galloway v. State, 60 Ark. 362, Chief Justice Bunn, in delivering- the opinion of the court, said: “The case really turns upon the construction to be given to the act entitled, ‘An act to reg’ulate the sale of wine in the state of Arkansas,’ approved April 3, 1889. * * * Certain words have been eliminated from the first and second sections of the act, to conform to the decisions of this court in the case of State v. Deschamp, 53 Ark. 490, the eliminated words having- a reference solely to the place of sale, and therefore not affecting- the issues in this case. The state contends that this act of 1889 repeals, or takes the place of, all other acts on the special subject of wine-selling in this state, especially the 15th section of the special act approved March 8, 1879, and its contention seems to us to be well founded, notwithstanding- the repealing act contains no repealing clause.”
In Boldt v. State, 60 Ark. 600, Mr. Justice Hughes, in delivering the opinion of the court, said: “If the act of April 3, 1889, had not been repealed, as above shown [that is to say, so far as it relates to the sale of wine in local option districts], still this case is settled by the decision in State v. Deschamp; for the effect of that decision is that wine made of grapes and berries grown by the maker of the wine can be sold, in quantities not less than one quart, only where the sale of intoxicating liquors is licensed and authorized by law.”
The opinions in these three cases, it seems, ought to decide the question as to the places in which a manufacturer can sell, without license, wine made from grapes ór berries grown by himself, and to restrict this right to places where the sale of intoxicating liquors is licensed and authorized by law. But it is contended that he has the right to sell such wine “anywhere in this state, except in localities where the sale of intoxicants is prohibited, either by special act of the legislature or by the three-mile law.” This contention is based on section 4851 of Sandels & Hill’s Digest, which reads as follows: “It shall not be lawful for any person to sell alcohol or any spirituous, ardent, vinous, malt-or fermented liquors in this state, or any compound or preparation thereof, commonly called tonics, bitters or medicated liquors, or intoxicating spirits of any character which are used and drank as a beverage in any quantity or for any purpose whatever, without first procuring a license from the county court of the county in which such sale is to be made, authorizing such person to exercise such privilege. Provided, manufacturers of alcohol, vinous, ardent, malt or fermented liquors can sell in original packages without license. Provided, further, such original packages shall not contain less than five gallons.” Under this statute, and section 4868 of the digest, it is-said the manufacturers mentioned in section 4851 can sell in original packages containing not less than five gallons’, without license, in any place in this state, except in local option districts, and localities where the sale of intoxicating liquors is prohibited by a special act of the legislature. How can this be true as to the manufacturers of wine? The act of April 3, 1889, was enacted subsequently to both the statutes named. The first section of it is explicit and comprehensive. As enacted it says : “It shall be unlawful for any ferson to sell wine at any flace in this state except as authorized in this act.” The persons who can sell without license are those who grow grapes or berries, and make w'ine thereof, and they were authorized to sell only in quantities not less than a quart, and upon the premises where the grapes or berries were grown and the wine made, and in places where the sale of intoxicating liquors is licensed and authorized by law. The act declares it shall be unlawful for them to sell wine without license, except in the quantities and at the places named. When amended to conform to the opinion of the court in State v. Deschamf, no change is made except to restrict the right to sell to places where “the sale of intoxicating liquors is licensed and authorized by law.”
The word “licensed” has a well settled meaning: “Black on Intoxicating Uiquors” says : “A license is essentially the granting of a special privilege to one or more persons, not enjoyed by citizens generally, or at least, not enjoyed by a class of citizens to which the license belongs. A- common right is not the creature of a license law. In a general sense, a license is permission granted by some competent authority to do an act which, without such permission would be illegal. The popular understanding of the word ‘license’ is. undoubtedly a permission to do something which without the. license would not be allowable. This is also the legal meaning. The object of a license is to confer a right which does not exist without a license. A license is a privilege granted by the state, usually on payment of a valuable consideration, though this is not essential. To constitute a privilege, the grant must confer authority to do something which, without the grant, would be illegal; for, if w.hat is to be done under the license is open to every'one without it, the grant would be merely idle and nugatory, conferring no privilege whatever. But the thing to be done may be something lawful in itself, and only prohibited for the .purposes of the license ; that is to say, prohibited in order to compel the taking out of a license. From these definitions, which are among the best tó be found in the books, it will be apparent that three leading ideas are involved in the definition of a license under the liquor laws. First, it confers a special privilege or franchise, upon selected persons,- to pursue a calling not open to all. Second, it legalizes acts which, if done without its protection, would be offenses against the state. Third, it is a privilege granted as part of a system of police regulations, and herein is distinguishable from taxation.” Sec. 117.
As used in the liquor laws of this state, a license is a privilege granted by the county court, or other competent authority, to sell liquor. In this sense it was doubtless used in the act of April'3. Construed in this sense, in the connection it is used in the act, the manufacturer cannot sell wine made out of grapes or berries grown by himself, without license, under the act regulating the sale of wine in this state, except in places where the county court, or other competent authority, can, in conformity with “the statutes in such cases made and provided,” grant the privilege of selling intoxicating liquors.
But it is said that it has been the policy of the legislature to encourage the manufacture of native wine, and that “it would be absurd to suppose that the legislature intended to permit the sale of all other intoxicating liquors in original packages, and prohibit the sale of wine.” While the supposition may be absurd, the truth is it has not been done. The manufacturer of native wine can sell in quantities of not less than one quart. The legislature probably thought it was favoring him when it authorized him to sell in such quantities when other manufacturers were prohibited from selling their liquors, without license, except in original packages containing not less than five gallons.
The language of the act of April 3d is plain and unambiguous. We cannot give it a meaning different from that it clearly conveys, to subserve some particular policy. As said by Mr. Justice Hughes in Railway Co. v. B' Shears, 59 Ark. 244, “it might be very just and reasonable and right that the statute should make an exception, such as is contended it does make, or ought to be construed to make, but this was within the power of the legislature, and its exercise of the power cannot be restrained or varied by the courts to subserve convenience, to relieve from hardships or from requirements that seem unreasonable, or even absurd, when the language is plain and unambiguous.”
Our conclusion is, the manufacturer cannot lawfully sell wine made out of grapes or berries grown by himself, without license, except in places where the sale of intoxicating liquors can be licensed according to law.
This opinion, of course, has no reference or application to special acts of the legislature governing the sale of wine in particular localities.
Judgment affirmed.
Bunn, C. J., and Wood, J., concur. | [
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BatteE, J.
The City Electric Street Railway Company is a corporation, and operates a street railway in the city of Little Rock, in this state, by means of electricity. Its railway traverses an extensive territory, and extends through many streets. One of the appliances used in its operation is a trolley wire, suspended by means of poles and charged with strong currents of electricity. A part of the railway was constructed in Fourth street. Above it were suspended the trolley wires. Intersecting Fourth street at right angles is Cross street, funning north and south, while Fourth runs east and west. At the southwest corner of Fourth and Cross, O. E. White resided. Three blocks distant, an the corner of Markham and Cross streets, was a drug store, which he owned and occupied. The residence and store were connected by a private telephone wire, which was suspended by passing it through loops of wire attached to insulators on poles, and was extended over the trolley wire of the street railway at Fourth and Cross streets, its distance above it, at the lowest point, being between six and twelve feet. In the course of time the telephone wire began to sag, sagged two or three feet between poles, and was finally broken near the corner of Markam and Cross by two electricians attempting to make it straight. The broken end was tied to a post, and in a few days became untied, or was again broken at or near the same place, and hung suspended in the street, the north end resting upon the ground. Two days afterwards, Arthur Conery, a lad of about ten years, — playing, perhaps, in the street in front of the home of his father and mother, — stepped upon it, and was shocked, thrown down, and burned. His mother, hearing his cries, went to his rescue, and, attempting to relieve him, was likewise thrown down. A workman, laboring near by, next went to his assistance, and cut the wire and relieved him. After this he sued White and the railway company for damages, recovered a judgment for $300, and the company appealed.
The appellant denies that the evidence shows that the trolley communicated to the telephone wire the electricity with which it was charged when appellee was shocked and burned. It says that it was not proved “that there was any contact between the two wires.” It is true that there was no positive evidence to that effect, but there was only one other electric wire in that vicinity, and it was an “electric light wire,” which was suspended above the telephone, and there is no evidence that it ever sagged or fell sufficiently low to come in contact with any wire below it. According to the evidence, there is only one reasonable theory upon which the condition of the telephone wire at the time appellee was injured by it can be accounted for, and that is that it came in contact with the trolley wire, while down, and received the electricity with which it was charged at the time. This fact is sufficient to sustain the verdict in that respect.
' This fact being established, the next question is, upon what duty of the appellant to the appellee can this action be based ? The answer to it is, upon the duty enjoined by the rule which requires every one to so use his property as not to injure another. The applica-' bility of this rule may be shown by many illustrations. One is where an owner of a vicious animal accustomed to do hurt, knowing his habits, negligently allows him to escape. He is responsible for the mischief the animal does, because it was the duty of the owner to keep him secure. So it is lawful for any person to gather water on his own premises for useful and ornamental purposes, but it is his duty to construct the reservoirs for that purpose , with sufficient strength to retain the water under all circumstances which can reasonably be anticipated, and afterwards to preserve and guard them with due care. “Nor any negligence, either in construction or in subsequent attention, from which injury results, parties maintaining such reservoirs must be responsible.” It is the duty of railway companies to keep their tracks and rights of way free from inflammable matter, so as to prevent the communication of fire from their locomotives to adjoining property, and for a failure to discharge this duty they are liable for injuries occasioned by the neglect.
This rule applies with equal force to electric companies. They are bound to use reasonable care in the construction and maintenance of their poles, cross-arms and wires, and other apparatus, along streets and other highways. They are required to do so for the protection of persons and property. If they negligently allow their wires to fall or sag, or poles or other apparatus to fall, to the injury of another, they are responsible in damage for the wrong done, if the party injured is guilty of no culpable negligence contributing to the injury. Uggla v. West End Street Railway, 160 Mass. 351; Haynes v. Raleigh Gas Co. (N. C.), 48 Am. & Eng. Corp. Cases, 225; Western Union Telegraph Co. v. Eyser, 91 U. S. 495.
In Texarkana Gas & Electric Light Co. v. Orr, 59 Ark. 215, it appeared that the defendant owned, maintained and operated in the city of Texarkana a system of electric lights. During the night of the 22d of August, 1891, or early in the morning of the next day, its wires became disabled and out of repair, and, being either broken or disengaged from their fastenings, fell to the ground or sidewalks of the city, and lay there from 12:30 o’clock a. m. until after daylight in the morning, when the street on which they lay was thronged with people. The company ascertained that the wires were down about 2 o’clock a. m. of the same day, but not the exact locality. Ed Walker, a boy, walking along the street about 6 o’clock in the morning of the day the wires had fallen, after some conversation with a bystander about the danger of the wires, picked up a dead wire. Being told to throw it down, he obeyed, but “flipped” it, as a witness said, into the air as he did so, and the wire struck a live wire before he let it go, and thereby transmitted through him an electric current which killed him instantly. The company was held responsible for damages on account of the injury.
The main difference between the case last cited and this is, the electricity was communicated to the party injured in the former by the electric company’s own wire, and in the latter by the wire of another, but the principle upon which the liability is based is the same in both cases. All persons have the right to use the streets, in or over which the wires were suspended, as p'ublic highways. Subjecting the dangerous element of electricity to their control., and using it for their own purposes, by means of wires suspended over the streets, it is their duty to maintain it in such a manner as to protect such persons against injury by it to the extent they can do so by the exercise of reasonable care and diligence. This duty is not limited to keeping their own wires out of the streets, or other public highways, but extends to the prevention of the escape of the dangerous force in their service through any wires brought in contact with their own, and of its transmission thereby to any one using the streets. Only in this way can the public receive that protection due it while exercising its rights in the highways in or over which electric wires are suspended. Electric Ry. Co. v. Shelton, 89 Tenn. 423 (14 S. W. Rep. 863); Block v. Milwaukee St. Ry. Co. (Wis.), 61 N. W. Rep. 1101.
Electric companies are bound to use “reasonable . « care m the construction and maintenance ot their lines and apparatus, — that is, such care as a reasonable man would use under the circumstances, — and will be responsible for any conduct falling short of this standard.” This care varies with the danger which will be incurred by negligence. In cases where the wires carry a strong and dangerous current of electricity, and the result of negligence might be exposure to death, or most serious accidents, the highest degree of care is required. This is especially true of electric railway wires suspended over the streets of populous cities or towns. Here the danger is great, and the care exercised must be commensurate with it. But this duty does not make them insurers against accidents; for they are not responsible for accidents which a reasonable man in the exercise of the greatest prudence would not, under the circumstances, have guarded against. Haynes v. Raleigh Gas Co. (N. C.), 48 Am. & Eng. Corp. Cases, 225; Uggla v. West End Street Railway Co. 160 Mass. 351.
In this case the cause of the accident was the falling^ of White’s telephone wire and the contact of the same with the trolley wire of the appellant. The jury found both of them guilty of negligence — White, in permitting his wire "to fall and remain down until appellee was hurt, and the appellant, in allowing the same to become charged with electricity by contact with its wire at the time of the injury. If this be true, the injury was the result of the concurring negligence of the two parties, and would not have occurred in the absence of either. In that case the negligence of the two was the proximate cause of the same, and both parties are liable. Shear. & Redf. on Neg. (4 ed.), sec. 31; Thompson Negligence, p. 1088.
We have examined the evidence in this case, and the instructions of the trial court based on the same. Without setting out either, it is sufficient to say that, tested • by what we have said in this opinion as to the law, we find no reversible error in the instructions, taken as a whole, and that the evidence is sufficient to sustain the verdict of the jury-in this court. Judgment affirmed. | [
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OPINION OP THE COURT. This was an action of trover and conversion brought by [Thomas N.] Hawthorn against [Joshua] Hightower, in the circuit court of Independence county, and came on to be tried at the July term of that court in 1826, before Justice Scott.. By the record it appears that a jury was impanelled and sworn to try the issue between the parties, and afterwards the jury were discharged, no plea having ‘.been filed and no issue made up, and judgment by default was entered against the defendant, Hightower, and a writ of inquiry ¡awarded to the next term of the court. By a bill of exceptions signed by William' Quarles, Caleb S. Manly, John Ruddle, and A. S. Walker, by-standers, it appears that Hightower, by his counsel, offered to file the plea of the general issue, which plea the ■court rejected, alleging that Hightower had no right to appear by counsel in the case. By another bill of exceptions signed by William Quarles, Thomas Moore, and John Reed, it appears that the court decided that Richard Searcy, counsel of the defendant, High-tower, had no right to appear, and ordered that the bills of exception tendered to the court should not be filed, noticed, or received by the clerk, and refused to sign either of them. The first point made by the plaintiff in error is. whether the court below ought to have admitted the plea of the general issue. We are of that opinion. It was not calculated to take the plaintiff by surprise, and he having omitted to take judgment by default at the previous term, the cause would stand over, as on an appearance, to the succeeding term. At each continuance, all the rights of both plaintiff and defendant were also continued, and the parties stood in precisely the same attitude that they did at each preceding term.
As to the second point, made in consequence of the court denying to the defendant the right ofi the counsel to appear in the case. By an act of the legislature of 1807 (Geyer, Dig. 250), parties may appear in person or by attorney. With a knowledge of this statute and the well-known doctrine of the common law on this subject for centuries, we cannot conceive how a court could deny, not only the right of counsel, but the unqualified right of every litigant To deny the party the right to appear by attorney, is at once shutting out from him that source of information and that exercise of his legal rights which would enable him to make a just and fair defence to the suit brought against him. Even after judgment by default, the counsel for the defendant may contest the right to a recovery of more than nominal damages; may cross-examine the plaintiff’s witnesses; may introduce witnesses in mitigation of damages; may make any motion in the progress of the case, and in fact do every thing as in other cases, except he is not permitted to deny the plaintiff’s cause of action, and his right to recover nominal damages. Reversed. | [
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Battle, J.
According to the well settled practice in this state the writ of certiorari can be used by the circuit court in the exercise of its appellate power and superintending control over inferior courts in the following classes- of cases: (1) Where the tribunal to which it is issued has exceeded its jurisdiction; (2) where the party applying for it had the right of appeal, but lost it- through no fault of his own ; and (3) in cases where it has superintending contról over a tribunal which has proceeded illegally, and no other mode has been provided for directly reviewing its proceedings. But it cannot be used as a substitute for an appeal or writ 'of error, for the mere correction of errors or irregularities in the proceedings of inferior courts (Ex parte Pearce, 44 Ark. 513; Railway Company v. State, 55 Ark. 205; McCoy v. Jackson County Court, 21 Ark. 475; Randle v. Williams, 18 Ark. 383; Hill v. Steel, 17 Ark. 440; Ex parte Allston, 17 Ark. 580; Baskins v. Wylds, 39 Ark. 347; Haynes v. Semmes, 39 Ark. 399; State v. Hinkle, 37 Ark. 532; Pettigrew v. Washington County, 43 Ark. 33; Hickey v. Matthews, 43 Ark. 341; Burgett v. Apperson, 52 Ark. 213; Flournoy v. Payne, 28 Ark. 87; 2 Spelling on Extraordinary Relief, secs. 1918-1920, and cases cited), except in cases where the appeal or writ of error was lost through no fault of the party "applying for it (Payne v. McCabe, 37 Ark. 318; Roberts v. Williams, 15 Ark. 43, 49; Wyatt v. Burr, 25 Ark. 476; Smith v. Parker, 25 Ark. 518; Burgett v. Apperson, 52 Ark. 213; Baker v. Halstead, Busbee, L. (N. C.), 41; 2 Spelling on Extraordinary Relief, secs. 1923-24, and cases cited), and in cases in the third class (Ex parte Couch, 14 Ark. 337; Carnall v. Crawford County, 11 Ark. 613; Lindsay v. Lindley, 20 Ark. 573; Baxter v. Brooks, 29 Ark. 180; People v. Williamson, 13 Ill. 660, 661, 663; Groenvelt v. Burwell, 1 Ld. Raymond, 469; Rex v. Inhabitants, Id. 580 ; C. & I. R. Co. v. Whipple, 22 Ill. 105; Nicoulin v. Lowery, 49 N. J. L. 391, 396; Doolittle v. G. & C. V. R. Co., 14 Ill. 381, 383; Trustees v. Shepherd, 139 Ill. 114; Mendon v. Worcester, 2 Allen, 463; 2 Spelling on Extraordinary Relief, sec. 1921, and cases cited).
In violation of this rule, it was held, in Tucker v. Yell, 25 Ark. 420, that certiorari lies in behalf of a creditor holding a claim against the estate of a deceased person, to correct an error of the probate, court in allowing his claim in the wrong class. In that case the court, allowed the claim in the fourth class when it should have been allowed in the third. This court held-that the circuit court on certiorari should have set aside the classification, and allowed it in the proper class.
In Flournoy v. Payne, 28 Ark. 87, “John B. Payne, as administrator of the estate of Sally C. Flournoy, deceased, presented for allowance and classification a claim against the estate of D. J. Flournoy, deceased, notice having been given to Robért C. Flournoy, as executor of the last will and testament of the said D. J. Flournoy, deceased, that said claim would be presented. The claim was allowed and classified. Over two years afterward, Robert C. Flournoy and others interested in the estate petitioned the Desha circuit court for a writ of certiorari requiring the clerk of the probate court to certify to the circuit court the proceedings and judgment of the probate court in relation to the presentation and allowance of said claim, etc.” They “alleged, substantially, that the probate court erroneously allowed said claim upon a certain decree * * * obtained by the appellee against Robert C. Flournoy, as executor, etc.., in the Fayette circuit court of Kentucky; that * * * three of the petitioners, namely, Elizabeth Stevenson, Mary Stone and Letitia Hume * * * were residents of the state ©f'Kentucky, and had no-notice that said claim,would be presented, and therefore had no opportunity of appealing from the judgment allowing and classifying said claim, and that, as to the said Robert C. Flournoy, although he was served with notice that the said claim would be presented for probate and allowance, it was in the city of Eouisville, Ky., where he was then living, and that his engagements were such that he could not, on such short notice, then go to the state of Arkansas to attend said court, and therefore he had no opportunity of appealing from the said judgment,” etc. Upon this state of facts, the court, after holding the excuse of the executor insufficient, said : “As to the other petitioners, they were represented by the executor at the time this claim was presented for allowance, and were not entitled to be parties in the adjudication thereof. They can, therefore, plead the negligence of the executor neither as an excuse for their failure to appeal, nor as in any manner giving them rights in a -proceeding of this character. The appellant, Robert C. Flournoy, not having shown circumstances sufficient to excuse him from his neglect to appeal, his only remedy was by appeal, and the circuit court had not the jurisdiction to determine the case upon certiorari.”
In Burgett v. Apperson, 52 Ark. 213, “the' appellant, who is the daughter and sole heir of Isaac Burgett, deceased, presented her petition to the circuit court for a writ of certiorari to quash an order of the probate court confirming a sale of her father’s lands made by the administrator to pay debts.” This court ordered the sale to be quashed, holding that it was erroneous, and finding that the heir, though entitled to be a party to the proceeding in which the sale was made, was not, and had lost her right to become such without fault on her part, and thereby the right to-an appeal. It said : “The writ [certiorari] is granted in two classes of cases; first, where it is shown that the inferior tribunal has exceeded its jurisdiction ; and, second, where it appears that it had proceeded illegally, and no appeal will lie, or that the right has been unavoidably lost. * * * Mere errors are never reviewable on certiorari, at the instance of one who has lost the right of appeal by his own fault, or who neglects to apply for the writ as soon as possible after it becomes necessary to resort to it. * * It cannot be used as a substitute for appeal to correct errors where an appeal is provided, except by a party who could have appealed.”
In determining the manner in which the writ of certiorari can be used in this state, we have not overlooked the. statute which provides that circuit courts shall have power to issue writs of certiorari to any officer or board of officers, or any inferior tribunal of their respective counties, to correct any erroneous or void proceeding, and to hear and determine the same.” As to its effect upon the office of the writ, it was held in St. Louis, etc., R. Company v. Burns, 35 Ark. 95, that it did not so enlarge the use of the writ “as to make it answer the ends of an appeal or writ of error for the correction of mere errors in judicial proceedings.” And such has been the settled doctrine of this court, as shown-by subsequent cases ; and to it we adhere.
In this case, creditors sued out a writ of certiorari for the purpose of setting aside the classification of a claim allowed by the probate court in favor of the Merchants & Planters Bank against the estate of Nannie W. Nichol, deceased, it having been allowed in the third class, and the}' insisting that it should have been in the fourth. This defect, which they invoke the writ to remedy, is an error committed by the probate court in the exercise of its jurisdiction, for the correction of which an appeal was allowed by statute, and no person was authorized to take it except the administrator. He and the creditor presenting the claim were the only parties. The other creditors were not entitled to become such. The administrator was the representative of them and all other persons interested, as creditors and otherwise, in the estate of his intestate, and in that respect stood to them in the relation of a trustee, and it was his duty to protect their interest in the estate of the deceased.
The law imposes on administrators the duty to “prosecute all actions that may become necessary to recover debts owing to the estate of their intestates, or property of any kind, and to protect the interest of the estate whenever the same is jeoparded.” “To this end,” says Woerner, on the American Law of Administration, “they must act not only ynth honest intent and perfect integrity, but also with" promptness and diligence, and reasonable prudence and foresight. They are required to investigate the circumstances attending the affairs of the estate, lest by indifference and indolence its debtors escape or become insolvent, and the -estate suffer. If they are remiss in their duty in this respect, they become liable personally, and on their bond, for whatever loss may ensue. * * * * But they are not bound to attempt the collection of bad or doubtful debts, or to prosecute claims of a doubtful character, at least not unless the parties demanding such prosecution will indemnify the estate or the executor or administrator against costs.” Griswold v. Chandler, 5 N. H. 492, 494; Sanborn v. Goodhue, 28 N. H. 48, 58; Andrews v. Tucker, 7 Pick. 250; 2 Woerner on the American Daw of Administration, sec. 324.
The law also imposes on them the duty to defend all actions, proceedings, or claims brought against them in their fiduciary character, or the estates of their intestates, and to plead all meritorious defenses that may become necessary to protect the estate or its creditors, and prosecute such appellate proceedings as may be necessary to sustain the same. In the discharge of this duty they should act with the same honest intent, integ-rity, prudence, promptness, and diligence as is required of them in the prosecution of actions, and for the failure to perform it are liable to the parties injured, under such circumstances and upon such conditions as they would be for the neglect' of duty in the prosecution of actions, the reason for the requirements and liabilities being the same in both cases. Davis v. Smith, 5 Ga. 274, 291; Hutchcraft v. Tilford, 5 Dana, 353, 360; Shackelford v. Gates, 35 Texas, 781.
In the manner indicated, the entire care, custody, management, preservation, and protection of the personal estate of a deceased person is entrusted to the administrator, with the duty of protecting the rights and interests of all persons in the same, and in this way the interference of creditors with all things concerning the estate is excluded, and they are left to enforce their rights in the estate in and through the administrator.
It therefore follows that the appellees had no right to sue out the writ of certiorari in this case, that the judgment of the circuit court should be reversed, and the writ quashed ; and it is so ordered. | [
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Bunn, C. J.,
(after stating the facts). The proceedings, as regard form, appear to have been substantially in accordance with the statute on the subject, and that provides that the bail bond endorsed by the justice of the peace as “forfeited,” and filed with the clerk of the circuit court, is a sufficient basis upon which the latter may issue his summons to the bondsmen in pursuance of the other section of the statute cited above. The objection that there was no complaint in the circuit court upon which the summons should issue is not well founded.
If the allegations of the answer were true, the appellant had a good defense. Therefore he should have been permitted to show by his witnesses, which he offered to do, that the allegations of his answer were true. The court, however, over his objections, excluded this testimony, and in that erred, and fatally so.
This case is nearly on all fours with the case of Flynn v. State, 42 Ark. 315, the only difference being, so far as we can discern, that in the latter case the defendant Flynn actually appeared at the justice’s office, and, on account of the press of business, the case could not be heard on that day, and another time for hearing was set, but of which the justice failed to notify the defendant, and the forfeiture was taken, notwithstanding this want of notice; whereas, in the present case, while the defendant did not actually appear, according to the very letter of her bond, yet her attorney and representative was present all the day, and the defendant was close at hand to appear whenever called. It follows that, in order to make the difference material, we would necessarily hold that the defendant, Burns, having failed to go through with the useless and reasonless performance of remaining all day personally present at the door of the closed office, was therefore guilty of a breach of her bond. We think that would be a too rigid construction of her obligation, in view of the explanatory circumstances offered to be shown as really existing at the time.
Reversed and remanded, with instructions to proceed according to this opinion. | [
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Heartsill Ragon, Special Justice.
At approximately 5:00 A. M., while returning to McCrory from Newport, Arkansas, after a sociable evening, Joe P. Stobaugh was killed while a passenger in a car driven and owned by J. M. Hubbard. Hubbard was also killed and Edward E. Peebles, a passenger, was seriously hurt.
The administrator of Stobaugh’s estate sued Hubbard’s estate and the owner of the truck with which Hubbard’s car collided. At the conclusion of the evidence, a verdict was directed against the administrator of Stobaugh’s estate in the action against Hubbard’s estate, resulting in the appeal herein.
If there was any substantial evidence presented, then it was the duty of the court to submit the question for consideration by the jury. The evidence and all reasonable inferences deducible therefrom should be viewed in the light most favorable to the appellant in determining if there is any substantial evidence. Callett v. Loews, 203 Ark. 756, 158 S. W. 2d 658; Smith v. McEachlin, 186 Ark. 1132, 57 S. W. 2d 1043.
Appellant argues, first, that Stobaugh, at the time of the accident was not a guest within the provision of the Arkansas Guest Statute, Ark. Stats. § 75-913 et seq, and was, therefore, entitled to have the actions of Hubbard in driving the automobile reviewed in the light of ordinary negligence, rather than the wilful and wanton negligence. This is predicated upon the contention that the preceding evening’s activities were of a business character rather than social. The sole evidence adduced in this regard was the testimony of Peebles that Hubbard owned a motel patronized by Stobaugh and that Hubbard and Stobaugh had previously known each other.
This is insufficient to overcome the admitted fact that the parties were engaged in spending the evening and early morning pursuing their mutual pleasure and companionship. Under the authority of Ward v. George, 195 Ark. 216, 112 S. W. 2d 30, and subsequent cases, there is presented here a case within the purview of the Guest Statute.
It is then insisted that if Stobaugh was a guest, there is substantial evidence that Hubbard was guilty of wilful and wanton negligence constituting a proximate cause of Stobaugh’s death. Such a finding must be based upon the allegation of the complaint which reads as follows:
“Alpheus Hubbard was wilfully and wantonly negligent in that he operated his vehicle wantonly and recklessly at a speed greatly in excess of that which was reasonable and prudent under the circumstances then existing and with a conscious disregard of the consequences of his acts with reference to the rights and safety of others.”
At approximately 8:00 P. M. the three men left McCrory to go to Newport. Considerable time was spent in two taverns in Newport where a fifth of whiskey purchased by Peebles and Hubbard was consumed by them and others. Stobaugh drank several bottles of beer. Appellant’s Statement of Pacts fairly sets forth the circumstances of the collision.
‘ ‘ Sometime after 2:00 a.m. these three men went to Phillips Cafe at Newport and remained there for a period of time variously estimated from one to two hours, and they all ate breakfast and had coffee. Mrs. Phillips, operator of the cafe, testified that she visited with them during the time they were in her cafe, and Hubbard and Stobaugh showed no indication of any impairment of their faculties due to intoxicants. She stated that she could tell that Peebles had had a drink, but he wasn’t drunk.
‘ ‘ Sometime before 5:00 a.m. the three men left the cafe to return to McCrory with Hubbard driving, Stobaugh in the right front seat and Peebles asleep in the back seat. They proceeded south on Highway 17 to Shoffner, approximately 11 miles south of Newport, where the Hubbard car struck the rear of a 1% ton truck. Hubbard was killed in the collision, Stobaugh sustained fatal injuries and died 85 days later, and Peebles was injured. John Hall, the only eye witness to the collision, testified that the truck was on the highway without lights and that its lights were turned on only an instant or two before the collision. He further stated that the Hubbard automobile had its lights on and was traveling not in excess of 65 miles per hour. The driver of the truck testified that his lights were on at the time of the collision and had been on since he left Newport.
“Pertinent physical facts in evidence were that the Hubbard car made 23 feet and 5 inches of skid marks before the point of impact, and traveled 81 feet after impact. The highway at this point is straight and level except for a very minor curve which does not materially affect the vision of drivers on the highway as demonstrated by pictures in the Record. Almost all witnesses were in agreement that it was dark at the time of the collision, and the driver of the truck testified that there was fog in the vicinity. The front of the automobile was almost completely demolished and the truck came to rest 300 feet from the point of impact.”
The evidence, construed most favorably to appellant and based upon her pleadings, is insufficient to support a finding that Hubbard was guilty of wilful and wanton negligence in operating his vehicle at a speed in excess of that which was reasonable and prudent under existing circumstances.
The applicable test is set forth in Poole v. James, 231 Ark. 810, 333 S. W. 2d 833.
In arriving at the conclusion herein, all evidence by all parties has been considered.
The action of the lower court is accordingly affirmed.
The Chief Justice and Justices McFaddin and Bohlinger not participating.
Justice Johnson and Special Justice J. L. Shaver dissent. Special Justice E. A. Henry joins in the majority opinion. | [
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Sam Robinson, Associate Justice.
Appellant, Martha Gertrude Crawford, filed this suit to foreclose a vendor’s lien. Foreclosure was denied on the ground that a mutual mistake had been made in preparing the instruments sued on. Reformation was ordered and the grantor has appealed.
On the 11th day of August, 1960, appellant sold the property involved to James Vinyard and his wife, Jimmie, for the consideration of $3,500.00. Six hundred dollars was paid in cash and a note was executed by the purchasers for the balance of $2,900.00, payable in monthly installments of $35.00 each, with interest from date until due at the rate of six per cent per annum and thereafter at the rate of ten per cent per annum until paid. A vendor’s lien was retained to secure the payment of the purchase money. At the end of the first month after execution of the note the purchasers paid to appellant $35.00 and made 11 consecutive monthly payments of $35.00 each.
On July 15, 1961, the Vinyards sold the property to appellees, Neilan Huchingson and his wife Delores, subject to the vendor’s lien. The Hutchingsons attempted to continue to make the monthly payments by sending to appellant a check in the sum of $35.00 each month. Appellant was unhappy with the Vinyards having sold the property and filed this action alleging that the purchasers had not paid the interest on the monthly payments. Appellees answered alleging that at the time the property was purchased it was agreed that the $35.00 monthly payments would include interest; that the note and deed prepared by the grantor’s attorney failed to express the true agreement of the parties and should be reformed accordingly. After considering all the evidence, the Chancellor held in favor of reformation.
The evidence is clear and convincing that the parties agreed that the $35.00 monthly payments would include interest. In addition to the direct testimony of James Yinyard to that effect, and no denial by appellant in her testimony, all the circumstances point to that conclusion. Just four days after the execution of the note and deed, appellant’s attorney, who prepared the instruments, wrote to appellant as follows: “In regard to the balance owed you by Mr. Yinyard, you are advised that the table to which I referred shows that the time required to liquidate a debt of $2,900.00 at $35.00 per month with interest at 6% per annum is 107 months. In other words Mr. Yinyard will owe you 107 monthly payments of $35.00 each, in the event he lets this run the full time. ’ ’
A copy of the letter was sent to appellee, James Vinyard. The letter shows rather conclusively that the attorney’s understanding of the agreement was that the debt was payable in 107 monthly payments. Hence, the $35.00 monthly payments would include interest. If interest were payable monthly, in addition to the $35.00 payments, there would not be 107 payments. Moreover, for 11 months appellant accepted the $35.00 monthly payments without complaining or contending that interest in addition to the sum received was due. This is a strong circumstance that appellant’s understanding was that the $35.00 payments included the interest.
In Fuller v. Hawkins, 60 Ark. 304, 30 S. W. 34, the Court said: “The rule that a Court of Equity has the power to correct mistakes in deeds and mortgages, so as to make them conform to the intention of the parties in executing the same, is well settled.” To the same effect is Wood v. Wood, 207 Ark. 518, 181 S. W. 2d 481. In discussing reformation because of mutual mistake in 12 Am. Jur. 631 it is stated: “Relief is not precluded because of negligence if it is excused as where the mistake is mutual and both parties have been negligent. This is the rule where the parties have instructed the drafting of the writing to an attorney or scrivener and it does not express what the parties intended it to express.”
The decree erroneously provides that the agreement of the parties was that the note shall bear interest at six per cent per annum until paid. Appellees admit that this is error. The note provides that the interest shall be six per cent per annum until due and ten per cent thereafter until paid. To the extent indicated the decree is modified, and as modified it is affirmed. | [
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BaTTDE, J.
The chancery court erred in striking from its files appellant’s bill of review for the reason that it was filed without leave first had and obtained. It was brought to procure- an examination and reversal of a decree made on a bill for divorce on account of alleged errors of law apparent on the face of the record. It is not necessary to obtain leave of the court before a bill of this kind can be filed. Perry v. Phelips, 17 Ves. 178; Story’s Eq. PI. secs. 404, 405; Mitford’s Eq. PI. 84. In Jacks v. Adair, 33 Ark. 173, and Webster v. Diamond, 36 Ark. 538, this court held that a bill-of review founded on newly discovered evidence cannot be lawfully filed without leave of the court first ob tained; but this rule does not apply to bills of review for errors of law apparent on the face of the decree.
The order to strike the bill from the files of the court should not be reversed, notwithstanding it was erroneous, unless it was prejudicial to the appellant; and it was not if the bill fails to show that she was entitled to the relief asked for therein, and should be affirmed. Woodall v. Moore, 55 Ark. 22; Denson v. Denson, 33 Miss. 560; Bleight v. M'Ilvoy, 4 Mon. 142. Was it prejudicial?
Appellant assigns in her complaint three errors of law in the decree of divorce: 1st, the appellant had not resided in this State for a period of one year before she commenced the action in which the decree of divorce was rendered; 2d, the allowance of alimony was too small and inadequate; and 3d, the alimony should not have been given her in bar of dower in the estate of appellee. The prayer of the bill was that the decree be so modified as to allow her reasonable alimony, and a divorce from bed and board instead of from the bonds of matrimony.
In an examination of the errors assigned, we are confined to the pleadings, proceedings, and decree, as set out in the complaint. In an attack upon a decree by a bill of review for errors of law, a court cannot look into the evidence to see whether the decree is based upon a correct finding of the facts. That is the proper office of a court of competent jurisdiction upon an appeal. But, assuming that the facts upon which the decree rests have been properly found, it is the sole duty of a court to inquire whether the record, exclusive of the evidence, contains any substantial error of law pointed out by the bill of review. Story’s E}q. PI. sec. 407; Buffington v. Harvey, 95 U. S. 99.
1. Before any person can be entitled to a divorce, under our statute, he or she must allege and prove, in addition to a legal cause of divorce, a residence in this State for one year next before the commencement of the action. The appellant failed to comply with this statutory prerequisite in the beginning of her action as first instituted. She first became a resident of this State on the 17th of April, 1888, and brought suit for a divorce on the 26th of June next following ; and was not, therefore, entitled to a decree for divorce in the action as originally brought. But she amended her complaint by adding an entirely new and distinct cause of divorce, of which the cause on which her action was originally founded formed no part, and by stating that she had been a resident of this State for more than two years next before the filing of the amendment, and by asking for a divorce from the bonds of matrimony, and for alimony. This amendment was filed in June, 1891. Appellee answered it, and denied the allegations as to the grounds of divorce. Depositions were taken to show the residence of the appellant in this State for the one year before the filing of the amendment and the new cause of divorce. Upon this evidence she obtained the decree which she now seeks to set asidé by bill of review.
The filing of the amendment setting up an entirely separate and distinct cause of divorce, and the answer to it of appellee, were equivalent to, and not distinguishable from, the beginning of a new suit. In answering, the appellee entered his appearance, and waived summons. The same result was reached as would have been accomplished had a new and original complaint been filed. In that case the appellee could have entered his appearance, as he did, and waived summons, and the same end would have been obtained as was reached by the filing of the amendment. The legal effect of the two proceedings is the same. When a new cause of action is introduced by amendment, a lis pendens is not created as to the subject matter of the amendment, and the statute of limitation does not cease to run until the filing of the amendment. Curtis v. Hitchcock, 10 Paige, 400; Holmes v. Trout, 7 Pet. 214; Sicard v. Davis, 6 Pet. 124; Wilkes v. Elliot, 5 Cr. C. C. 611. Such has been held to be the effect of an amendment setting up a new cause of divorce in Kentucky. In Logan v. Logan, 2 B. Mon. 148, it was held that “though an original bill for alimony and divorce may be prematurely filed, yet, if grounds for alimony occur before the hearing, and the facts are set out in an amended bill, and not answered, the court may give the appropriate decree for the complainant. ” “And so, in McCrocklin v. McCrocklin, Id. 370, the same court held that, though the time of abandonment may not have authorized any decree when the original bill was filed, yet if, before the filing of an amended bill, the abandonment has been sufficiently long to authorize a decree of divorce and for alimony, it may be decreed.”
2. As to the sufficiency of the alimony decreed to the appellant, no error of law appears upon the record. That is a fact which appears only in the evidence. Upon this point the decree says : “In the matter of alimony, the same having been heard by the court on proof and arguments of solicitors, and the parties consenting that alimony may be awarded in a gross sum, and the court being well and sufficiently advised in the premises, it is ordered and adjudged that out of the estate of the said defendant, Henry Wood, the plaintiff, Mary J. Wood, be, and she is hereby, allowed the sum of $33,000 by way of alimony to be paid to her by the said Henry Wood (or to her solicitors of record, Caruth & Erb), together with the costs accrued in this cause.” This is conclusive in this proceeding as to the sufficiency of the alimony, it being a matter which was determined by the court by hearing the evidence. If it was inadequate, the remedy of the appellant was by appeal from the de cree by which it was allowed. Bauman v. Bauman, 18 Ark. 330.
In allowing, alimony in a gross sum the court departed from the course usually pursued in such matters, but this was done by consent. She was represented by solicitors, who were acting within the apparent scope of their authority. She has no right to repudiate her acts of record done by them, but she must abide by them, and hold her solicitors responsible, if they were derelict in their duties, or unfaithful to her injury. In rendering a decree in accordance with consent of parties, given by their respective solicitors, no error of law was committed by the court. Coster v. Clarke, 3 Edw. Ch. 405; Price v. Notrebe, 17 Ark. 56; Beck v. Bellamy, 93 N. C. 129; Shattuck v. Bill, 142 Mass. 56; Brockley v. Brockley, 122 Pa. St. 1, 6.
3. In allowing alimony the court decreed that it should be a “bar of all the plaintiff’s right of dower in the estate of the said Henry Wood,” her former husband. She insists that, the divorce not having been granted on account of her misconduct, the court erred in barring her dotal rights. But this is not true, unless she could have retained her right to dower after her divorce from the bonds of matrimony. She could not at common law. To entitle a party to dower, she must be the wife at the death of the husband. A divorce from the bonds of matrimony barred the claim of dower. Frampton v. Stephens, 21 Ch. Div. 164; McCraney v. McCraney, 5 Iowa, 241; Gleason v. Emerson, 51 N. H. 405; Barrett v. Failing, 111 U. S. 525; Day v. West, 2 Edw. Ch. 596; Reynolds v. Reynolds, 24 Wend. 196; Wait v. Wait, 4 N. Y. 95; 1 Coke, Bit. c. 5, sec. 36, 32a.; 3 Blackstone, 130; 4 Kent, Com. 54; 2 Bishop on Marriage, Divorce and Separation, sec. 1631.
But section 2578 of Mansfield’s Digest provides: “In case of divorce dissolving the marriage contract for the misconduct of the wife, she shall not be endowed.” This is a peculiar statute. Without undertaking to declare the rights of a divorced wife, the legislature declared by this section in what event she shall not be endowed. It is a copy of a New York statute without the enactment of the statutes of the State from which it was borrowed, which explained and gave it vitality and effect in that State.
In Reynolds v. Reynolds, 24 Wend. 193, the origin and effect of this statute in New York is explained as follows: “By the statute, Westm. second, (13 Ed. I) c. 34, it was enacted that ‘if a wife willingly leave her husband, and go away, and continue with her advouterer, she shall be barred forever of action to demand her dower that she ought to have of her husband’s lands, if she be convicted threupon, except that her husband willingly and without coercion of the church reconcile her, and suffer her to dwell with him ; in which case she shall be restored to her action. 2 Inst. 433. This statute was, in substance, re-enacted in this State in 1787, 1 Greenl. 294, sec. 7; and it remained in force down to the revision of the laws in 1830. * * * In 1830, the act of 1877 was repealed, and, after declaring that a widow shall be entitled to dower, a new provision was made in the following words : “In case of divorce dissolving the marriage contract, for the misconduct of the wife, she shall not be endowed.’ 1 R. S. 741, sec. 8. Under this statute the adultery is not enough. It must be followed by a divorce dissolving the marriage contract. This brought us back to the common law, as it stood before the statute of 13 Ed. I, for, as we have already seen, adultery did not work a forfeiture at common law. And as to a divorce a vinculo, that always put an end to the claim of dower; for, although it was not necessary that the seisin of the husband should continue during the coverture, it was necessary that the marrige should continue until the death, of the husband. Co. Lit. 32a; 2 Bl. Com. 130; 2 Kent, Com. 52c and p. 54. The statute bar for the mere act of adultery, which had existed for more than five centuries and a half, was blotted out by the repeal of the act of 1787—the British statutes not being in force in this State; and the 8th section of the act of 1830 has added nothing to the law as it would have stood had the legislature stopped with a simple repeal of the act of 1787.”
In Wait v. Wait, 4 N. Y. 95, the court, overlooking Day v. West, 2 Edw. Ch. 592, and Reynolds v. Reynolds, 24 Wend. 193, “held that a judgment dissolving a valid marriage for the adultery of the husband did not cut off the wife’s inchoate right to dower in lands of which he was at the date of the judgment, or theretofore had been, seized.” In speaking of the decree dissolving the marriage in that case, the court said: ‘ ‘The statutory divorce is limited in its operation, and only affects the rights and obligations of the parties, to the extent declared by statute. * * * * * It is true, that the decree is, that the marriage be dissolved, and that each party be freed from the obligations thereof. This dissolution and release, however, is not absolute. The wife, when the husband is the guilty party, is still entitled to her support, and the obligation of marriage still rests upon the husband, so far as to render it unlawful for him again to marry. When the wife is the guilty party, the marriage still continues in force, so far as to give the husband a title to her property, and to render it unlawful for her to marry. As a further penalty for her offense, the legislature has declared, that when the wife is convicted of adultery, she shall not be entitled to dower in her husband’s real estate.”
Holding that a decree of divorce had no other effect than that declared by the statute, and finding that the dissolution of marriage by the decree was not absolute, but that the obligation of marriage, according to the statutes of New York, still rested upon the husband, so far as to render it unlawful for him again to marry, the court rested its decision in Wait v. Wait on the ground that the section which provided that, “in case of divorce dissolving the marriage contract for the misconduct of the wife, she shall not be endowed,” by denying a wife’s right to dower when divorced for adultery, by fair implication saved it when a divorce was granted for the adultery of the husband. This decision, even under the peculiar laws of New York, has been questioned. Moore v. Hegeman, 27 Hun, 70; aff’d 92 N. Y. 521; Price v. Price, 124 N. Y. 599; 2 Bishop on Marriage, Divorce and Separation, sec. 1635.
But there is no statute in this State limiting the dissolution of the marital ties to either party. Under the statutes the courts can impose on the husband the obligation to support the divorced wife by way of alimony, but in a divorce a vinculo the dissolution of the marriage is absolute. The common law in this respect is unrepealed. Here no quasi marital relation or condition exists, after a divorce from the bonds of matrimony has been granted, upon which the right to dower can attach. Under the statutes of this State the widow only is entitled to dower. It is true that the language of section 2578 of Mansfield’s Digest indicates the opinion that the wife would be entitled to dower if the divorce should be granted on account of the misconduct of the husband, but, as said by Chief Justice Marshall in Postmaster General v. Early, 12 Wheat. 148, ‘ ‘a mistaken opinion of the legislature concerning the law does not make law.” Bndlich on Statutes, sec. 372.
At the time appellant was granted a divorce, a statute of this State, enacted on the second of March, 1891, provided that a wife who has been granted a divorce from the bonds of matrimony “shall be entitled to one-third of her husband’s personal property absolutely, and one third part of all the lands whereof her husband was siezed of an estate of inheritance at any time during the marriage, for her life, unless the same shall have been relinquished by her in legal form,” and the final order or judgment of divorce “shall designate the specific property, both real and personal, to which such wife is entitled.” It is contended by appellant that if the filing of the amendment to her complaint was the beginning of a new action, the act of March 2nd was in force at its commencement, and the one-third part of the estate of her divorced husband should been set apart to her, according to its terms. But she did not assign the failure to do so as an error in her bill of review, and seek to have it corrected. On the contrary, she sought to have the decree of divorce from the bonds of matrimony set aside, and thereby to surrender the right to one-third of her husband’s estate, if she was entitled to it, and for a divorce from bed and board and for alimony against appellee. She, therefore, has no right to complain in this court that she did not recover that which she neither asked for nor desired.
Appellant did not undertake to show, in her original or amended bill for divorce, that she was entitled to the benefits of the act of March 2, 1891. Her original bill was filed before it was passed, and- it was not amended thereafter in that respect. For the purpose of showing that she was entitled to considerable alimony, she alleged in the original bill that the defendant was not worth less than $200,000, but did not say in what his estate consisted, or that it was within the jurisdiction of the court. No information is given to show that the court had the jurisdiction, by reason of the quality and location of the property, to set apart to her one-third of it under the act. It might have been real estate situate in another State. Nothing appears in the record, outside of the evidence, to show that the court committed an error of law in failing to divide the estate of the husband in accordance with the act.
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McCulloch, C. J.
This is an action instituted by the appellee, Dora Jackson Fulks, against J. M. Williams and his wife, Nancy Williams, to recover damages on account of slanderous words alleged to have been spoken by defendant, Nancy Williams, concerning the plaintiff.
This is the third appeal. The first judgment was in favor of defendants, and, on appeal, that judgment was reversed and the cause remanded for a new trial. 92 Ark. 486. The second trial resulted in a judgment in favor of plaintiff, and, on appeal, that judgment was reversed and the cause remanded for a new trial. 103 Ark. 196.
The facts are fully set forth in the former opinions and need not be again rehearsed.
The words alleged to have been spoken were slanderous per se, and the law applicable to the case is fully settled on the former appeals.
In the last trial plaintiff recovered judgment in the sum of $1,000, and the defendants have prosecuted the appeal to this court.
The only assignments of error relate to rulings of the court in admitting testimony. There are several of these assignments, and they all relate to testimony which had bearing only on the question of the amount of damages, except one of the assignments, which related to testimony affecting the credibility of one of the witnesses.
After a careful examination of these assignments we are of the opinion that none of them constitute reversible error. It is unnecessary to discuss them all, as the principles affecting them are not unconnected.
One of the assignments is as to the ruling of the court in permitting the plaintiff to testify about certain postal cards which she had received through the mails subsequent to the utterance of the slander.
This occurred on re-direct examination, after counsel for defendants had subjected her ito ia searching cross-examination on all phases of the case, and particularly with reference to the amount of her injury by reason of the slander. She was asked about the persons who knew of the slander and their character, and whether she had reason to think that the slanderous words were believed by people in the community. On re-direct examination, immediately following this part of the cross-examination, she was asked by counsel for plaintiff whether or not she had received postal cards through the mails (then handed to her), and what was her state of mind after she received'them. Objection was made by defendant’s counsel to the introduction of the postal cards, and the court sustained the objection, telling the jury at the time to disregard anything said in their hearing insofar as the cards were concerned, but that the degree of plaintiff’s mental suffering being a matter at issue as affecting the damages she could be permitted to state that she received postal cards, and what the condition of her mind was at the time as the result of the slanderous words uttered by the defendant, Mrs. Williams. She was then permitted to state that she received postal cards, and that her heart was almost‘broken over the incident.
The defendants can not complain at the failure of the court to permit the postal cards to be read, because the cards were excluded upon their request. They objected to the plaintiff making any statement about the condition of her feeling at that time; but we are of the opinion that the testimony was not prejudicial when considered in the light in which the jury must have understood it. The whole purpose of it was to show what she believed, and that she was humiliated in consequence of a belief that the slander affected the minds of people in the community toward her. This testimony was merely introduced for the purpose of responding to the attempt of defendants to show that she did not suffer any humiliation from the slander because she did not believe it had any effect. After all, the manner in which the testimony was'admitted made it relate to the plaintiff’s own statement that she believed that the slanderous words were in some quarters accepted as. true. It could only have affected the amount recovered, and we do not think that the mention of the postal cards had any prejudicial effect upon the minds of the jury.
Another assignment relates to the testimony of plaintiff’s sister about a friend of hers telling her of the use of the slanderous words by defendant, Mrs. Williams.
Now, there is much contrariety of opinion among the authorities on -this subject as to effect of repetition of slanderous words by third persons, and whether the original slanderer is responsible therefor.
We need not go into that question here, for it is apparent that this assignment does not raise it, as the testimony of plaintiff’s sister only had a tendency to show that the slander was generally known, and had been communicated to her by a third person. It was not such repetition of the slander as was calculated to augment the damages, and therefore could not be held to be prejudicial, even if it be held that under the law the defendant was not liable for damages resulting from the repetition of the slander by third persons.
Another assignment relates to testimony of plaintiff tending to show that she was a member of a certain lodge and was the next highest officer therein, and that about the time the slander was circulated, she was, without apparent cause, dropped out of line, and not promoted to the highest office.
We think that testimony was competent, for the jury might fairly have drawn the inference that her failure to attain the office was caused by the slanders circulated against her good name.
Other testimony adduced which has been objected to related to the circulation of the slander, or, rather, to evidence of the fact that it had been generally circulated in the community as the result of utterance of the slanderous words by defendant, Mrs. Williams; and we think it was competent for the purpose of showing the extent of the damages.
The question whether the defendants are responsible for damages resulting from mere repetition by other per sons is not properly raised in this case, and the court will not undertake to decide it.
Upon the whole we are unable to discover any prejudicial error in the record.
■ We have already decided that the defendant, J. M. Williams, is, under the law, liable for damages resulting from slanderous words spoken by his wife, and, however innocent he may be of any participation in the wrong, he can not escape the effect thereof.
The assessment of damages is assailed as being excessive ; but after considering all the evidence in the case, we are unable to say that the jury were without warrant to fix it at the amount named.
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Smith, J.,
(after stating the facts). This suit was brought upon the theory that the notes had matured and become payable because of appellants’ failure to insure the property, as required by the contract of sale.
Appellants alleged that the suit had been prematurely brought because of the subsequent agreement, by the terms of which appellee agreed to insure the property. The effect of such agreement, if valid, would be to abate the suit on the notes for the reason that it was prematurely brought. Appellees’ failure to insure the property would not make the notes due and payable, before they would otherwise become due, if they had been relieved of that obligation by a subsequent parol agreement, by which the insurance should be taken out and paid for by the gin company.
We think the court erred in sustaining the demurrer to the answer. In the case of Von Berg v. Goodman, 85 Ark. 605, it was said: “No rule is violated by allowing proof of a subsequent parol agreement changing the terms of a prior written contract.” The original contract gave appellee the right to insure the property in the event the appellants failed to do so, and to charge the costs thereof to appellants, together with interest at the rate of 8 per cent per annum.
The answer presents a question of fact, and if it be true that this subsequent agreement was entered into, then this suit must abate as having been prematurely brought. Rodgers v. Wise, 106 Ark. 310; Hickey v. Thompson, 52 Ark. 234.
Appellee insists that the parol agreement is void under the statute of frauds because the contract of sale was made April 25, 1913, and the last note would not fall due until November 15, 1914, and that the suit itself was begun more than a year before the maturity of the last note, and that therefore the period for which the insurance was to be carried was more than one year. But while the .contract of insurance would have continued for more than a year, the agreement to take out the insurance was one to be performed immediately, and the statute of frauds has no application. Meyer v. Roberts, 46 Ark. 80.
The judgment will therefore be reversed, and the cause remanded with directions to overrule the demurrer. | [
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McCulloch, C. J.
The subject-matter of this controversy is a lot on Garrison Avenue, in the city of Fort Smith, and plaintiffs, who are appellees here, are endeavoring to prove that the title is held in trust by their mother, who was one of the defendants and who died 'while the cause was pending in the court below. The action was instituted at law by the plaintiffs, Mrs. H. C. Lark and Mrs. Y. L. McCoy, against their mother, Mrs. Mary L. Mayers, and her three other daughters, Mrs. Rapley, Mrs. Rogers and Mrs. Linde, the object of the suit being to have the property partitioned.
The cause was transferred to the chancery court, and proceeded to final decree, from which an appeal has been .prosecuted to this court.
The plaintiffs, in théir amended complaint, alleged that the property in controversy was purchased by their father, Michael Mayers, from one Raphael M. Johnson, and, at his instance, conveyed to his daughter, Harriett C. Lark, one of the plaintiffs, with the understanding and agreement that the latter should hold the title for him (the said Michael Mayers), and .that subsequently, towit, in the year 1874, said Harriett C.' Lark executed a deed by which she intended to convey the property to her father, said Michael Mayers, but by mistake conveyed the same to his wife, Mrs. M. L. Mayers, one of the defendants.
The prayer of the complaint was that defendant, Mrs. Mayers, be declared a trustee holding the legal title for the benefit of plaintiffs and other children of said Michael Mayers, and that the court divest the title out of said trustee and vest it in said children.
The suit embraced other property in the State, but which was afterwards eliminated from the litigation.
Mrs. Mayers and the other defendants answered, denying that the property in controversy was purchased by Michael Mayers, or that he had any interest therein save as the husband of said Mrs. M. L. Mayers, and denied that there was any mistake with reference to the conveyance. They alleged that the property was purchased by said Mary L. Mayers with her own funds, and that the title was conveyed to her daughter, Mrs. Lark, then Mrs. Ayers, to hold for her, and that subsequently, at her request, Mrs. Lark conveyed the property to her. Mrs. Mayers also pleaded that she had been in undisputed possession of the property for more than forty years, and had paid taxes thereon during that time and up- to the commencement of this action.
The original -complaint was filed and summons was issued on April 28, 1909.
The depositions and proof in the case, at least, most of it, was taken prior to the death of Mrs. Mayers, which occurred in March, 1912.
During the pendency of the action, Mrs. Mayers conveyed the middle third of the lot to her daughter, Mrs. Linde, and the east third thereof to her great granddaughter, Eleanor May Anderson, who was a child four or five years old. After the death of Mrs. Mayers, the guardian of Mrs. Linde, who had been adjudged to be non compos mentis, intervened in the action and asserted title under said conveyance; and also the guardian of the child, Eleanor May Anderson, applied to be- made a party, also claiming the portion of the- lot conveyed to her. They ■ were accordingly made parties.
Mrs. Mayers resided in Texas at the time of her death, and the probate court there appointed an administrator, and the chancery court revived the case in the name of said special administrator.
The order of revivor in the name of the special administrator was improper, for title to land being involved the canse should have been revived in the name of the heirs; but inasmuch as the heirs were all parties to the action and were actively litigating the cause, and the two grantees in the conveyances of Mrs. Mayers were made parties subsequent to her death, the error in the order of revivor is unimportant.
Michael Mayers and his wife, Mary L. Mayers, intermarried in the year 1848 at Fort Smith, Arkansas, and lived there continuously until a few years after the close of the war between the States. Michael Mayers was a druggist and was called Doctor Mayers. The property in controversy was purchased from one William Sweeney in January, 1868, and a part of the purchase money was paid in cash at the time of the purchase, the total price being about nine hundred or one thousand dollars. No conveyance was made by Sweeney at that time. On August 19, 1869, the balance of the purchase money was paid with money borrowed from Raphael M. Johnson, and on that day Sweeney conveyed the lot to Johnson; and on November 4, .1869, Johnson conveyed the property to Harriett O. Lark, the daughter of Michael and Mary L. Mayers, she being then the wife of Captain Ayers of the United States Army.
It is unnecessary to determine 'whose money was used, whether that of Michael Mayers or his wife, in purchasing the property from Sweeney, and a discussion of those details is immaterial, for we rest our opinion upon subsequent transactions. Mrs. Ayres held the title to the property until December 1, 1874, when she and her husband joined in a quitclaim deed conveying the title to her mother, Mrs. Mayers.
When'the property was purchased from Sweeney, it • had no improvements thereon of any value, but a building was subsequently placed upon it which was destroyed •by a cyclone which swept over the city of Fort Smith about the year 1877. After that money was borrowed and used in constructing a brick building on the property and a mortgage was executed on the property by Mrs., Mayers to secure payment of the borrowed money. In applying for the loan, there was discovered a defect in the acknowledgment to the deed of -Mrs. Ayres to her mother, and she was asked to execute a new deed to correct the mistake in the old, which was done, and the deed was duly executed June 2, 1884.
Doctor Mayers died in the year 1904. He and his wife, Mary L., lived together uninterruptedly from the time they married up until the date of his-death. They removed to Texas a few years after the purchase of the Fort Smith property, the precise year of their removal not being disclosed in the record so far as we have observed, and property was acquired in the State of Texas, which, subsequent to the death of Doctor Mayers, was adjudged to be community property.
The property in controversy was carried on the tax books of Sebastian County, Arkansas, in the name of Mrs. Mayers, and she paid the taxes thereon continuously from the year 1874 until the date of her death.
The principles applicable to this case are so well settled that there can be no controversy as'to the law of the case.
It is unnecessary to determine, as before stated, who purchased the property from Sweeney, whether Doctor Mayers or his wife. Nor need we inquire into the details as to whose money was used in making the purchase, for it is undisputed that Raphael M. Johnson conveyed the property to Mrs. Lark, then Mrs. Ayres, to hold the title as trustee, and that subsequently Mrs. Ayres conveyed the property to her mother, Mrs. Mayers, at the request of her father, as well as her mother. There can be no dispute about that, and the testimony of Mrs. Lark herself shows that her father knew of the execution of the conveyance to her mother. That deed was placed of record, as was the second deed' executed in 1884 to. correct the error in the first one. It is true that Mrs. Lark-says that the understanding was, at the time Johnis-on jnade- the- deed to her, that she -should convey it to her father when requested, and that when she executed the deed to her mother, she thought she was conveying it to her father. But it is conceded that she was merely holding the title as trustee, and had no beneficial interest therein, and it was immaterial what she thought about it if, as a matter of fact, her father authorized the conveyance to her mother, or consented thereto. It is, as before stated, undisputed that Doctor Mayers knew that the property was conveyed to his wife and authorized it to be done, and he knew throughout the remainder of his life that the title was in his wife. She testified that he knew all about it and treated it as her property and acted for her under a power of attorney which she executed.
The case stands* then, regardless of the details of the original purchase, as one where the husband voluntarily conveys property to his wife, or causes it to be conveyed to her, and under those circumstances, even if he furnishes the money, there is a presumption that it is a gift.
In the similar case of Womack v. Womack, 73 Ark. 281, it was said:
“Conceding that Womack purchased the land, and paid for it, and had the title taken in name of his wife, it was absolutely her property. Mf a husband purchases property, and has it conveyed to his wife, or expends money in improving her property, the advances will be presumed to be gifts.’ ”,
The cases in which that principle is announced are very numerous, and it is unnecessary to cite any more of them.
The plaintiffs in this case, therefore, upon the undisputed facts, started with the presumption against them that the conveyance to Mrs. Mayers was a gift from their father, even if his money was used in the purchase,, and the only remaining question is whether or not .they have overcome that presumption with sufficient proof to justify the court in declaring that it was not a gift, and that a trust resulted.
Our opinion is that they have not adduced sufficient proof for that purpose, and that the chancellor erred in declaring a resulting trust. There is, in fact, little, if any, proof of a substantial character, in the record tending to show that Doctor Mayers ever treated the property other than as being owned by his wife. All the proof adduced tends the other way. Of course, there is an attempt on the part of the plaintiffs to discredit the testimony adduced by defendants in support of their claim that Doctor Mayers, by affirmative acts, showed that he treated the property as his wife’s; but the plaintiffs offer little, if any, testimony themselves, which has any substantial effect in showing that Doctor Mayers intended the conveyance otherwise than as vesting the title absolutely in his wife. The only thing seriously urged as showing a claim on the part of Doctor Mayers to ownership of the property is an agreement in the record with reference to a will that he is said to have executed. Neither of the parties introduced any such instrument, but in the examination of Mrs. Lark, it developed that after the death of Doctor Mayers, Mrs. Mayers had proposed for probate in Texas a will purporting to be that of Doctor Mayers, but that she (Mrs. Lark) produced a later will revoking the former one. These instruments are referred to as being brought out in certain litigation in Texas concerning the property there, and the record shows a concession on the part of the defendants that such a will was in existence whereby Doctor Mayers devised whatever reversionary interest he might have in certain mortgaged property.
The record does not show what property was meant, ■ as the wills were not produced and copied in the record, but the inference is, from the way in which the matter appears in the record, that it referred to the mortgaged property in Texas. Be that as it may, however, we ..are of the opinion that mere execution of a will by Doctor Mayers referring in that vague way to whatever interest he might have was insufficient to rebut the presumption of a voluntary gift on his part.
The rule is that in order to establish a resulting trust, the evidence must be “full, clear and convincing.” Johnson v. Richardson, 44 Ark. 365.
Instead of the proof in this case being convincing that a trust was intended, it appears to us that the weight of the evidence is against the existence of any trust or any intention to create one. The decree must, therefore, be reversed, and the cause is remanded with directions to dismiss the complaint of the plaintiffs for want of equity.
The allowance by the court of fees to the attorneys for plaintiffs, of course, falls with the reversal of the decree in favor of plaintiffs and the decree allowing such fees is also reversed. | [
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Kirby, J.,
(after stating the facts). The only question presented for consideration is whether appellants have been discharged from liability on the bond, executed by the lessee to the lessor for securing the payment of the rent, upon which they are sureties. It is conceded that before the end of the first year of the term of the lease, the lessee agreed with the lessor to, and did surrender, one of the store rooms and release it to the lessor for the consideration of $250 paid by her, and that she immediately thereafter leased said store room for $75 per month. This was done without the knowledge or consent of the sureties upon the bond. It was a material alteration of the terms of the contract without their consent, and released them from the further performance of it. They may have been perfectly willing to have been bound for tbe payment of $100 rent for the two store rooms, and bad a right certainly to rely upon their principal paying bis rent out of tbe entire property leased. If be bad abandoned it, they could have taken bis place and would have been in much better condition to save themselves a loss with both tbe store rooms. The one released was immediately thereafter rented for $75 per month, and tbe two store rooms might have been more easily rented together than separately. The courts have long held that any material alteration in tbe terms of a contract, whereby a surety is bound, discharges tbe surety if be has not consented to tbe change, and this is so even if tbe alteration be for tbe benefit of tbe surety-; for, although tbe principals may change their contract to suit their pleasure or convenience, they can not bind tbe surety thereto without bis consent, and, as tbe new contract abrogates tbe old, tbe surety is discharged from all liability unless be has consented to tbe alteration. O’Neal v. Kelley, 65 Ark. 550; Singer Manufacturing Company v. Boyette, 74 Ark. 601; 1 Brandt on Suretyship, § 427; Hubbard v. Reilly, 98 N. E. 886; Warren v. Lyons, 9 L. R. A. 353; Stern v. Sawyer, 61 Atl. 36; Miller v. Stewart, 9 Wheaton 702; Penn. v. Collins, 5 Rob. (La.) 213. In Berman v. Shelby, 93 Ark. 479, tbe court said, “For ‘a surety will be discharged by any material and unauthorized alteration of bis contract, and it is immaterial that tbe principal assured tbe obligee that tbe alteration would not affect the original contract, or that be failed to carry out tbe contract as altered.”
Appellants were only sureties for tbe payment of the rent in accordance with tbe terms of their bond and the lease in ease of tbe lessee’s failure to pay, and tbe contract having been materially changed without their consent, they were thereby released from further liability. The judgment is reversed and tbe cause dismissed. | [
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Wood, J.,
(after stating the facts). Section 2421 of Kirby’s Digest, provides: “The application for a new trial must be made at the same term at which the verdict ■is rendered, unless the judgment is postponed to another term, in which case it may be made at any time before judgment. ’ ’
This statute contemplates that the motion for a new trial shall be made at the same term of the court at which the verdict is rendered, and that it shall be acted upon at that term unless the judgment is postponed to another term. In the present case, judgment was entered at the term of the court at which the trial was had, and that term of the court adjourned without the court setting aside the judgment. This judgment, therefore, became final, and the court had no power to set the same aside at the succeeding term.
The order of the court continuing the cause after the motion for a new trial was filed did not have the effect to set -aside the judgment. Under the statute, when the appellee filed his motion for a new trial, the court might have postponed entering the judgment until another term of the court, and continued the hearing on the motion, and that woiild have operated as a continuance of the cause. In that case the appellee might have had his motion for a new trial passed on at the subsequent term, but this was not done, and therefore the appellee lost the benefit of his motion for a new trial when the term of the court at which his trial was had and judgment entered was adjourned until court in course.
Where judgment is entered and becomes final by adjournment of the term of court during which the verdict was rendered, it can not be opened up and a new trial granted at any subsequent term. See Ayers v. Anderson-Tully Co., 89 Ark. 160.
It follows that the court erred in entering a judgment setting aside the verdict and discharging the defendant, and exonerating the bondsmen, and entering a judgment for costs against the appellant. The judgment is therefore reversed and remanded, with directions to dismiss the application for a new trial. | [
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Per Curiam.
Appellant was convicted of the crime of seduction, and his appeal from that judgment is pending in this court, the case not being yet ready for submission.
He now presents a motion for suspension of further proceedings under a statute which provides that “if any man, against whom a prosecution has begun, either before a justice of the peace, or by an indictment by a grand jury, for the crime of seduction, shall marry the female alleged to have been seduced, such prosecution shall not then be .terminated, biut shall be suspended; provided, that if at any time thereafter the accused shall wilfully and without such cause, as now constitutes a legal cause for divorce, desert and abandon such female, then at such time said prosecution shall be continued,” etc. Kirby’s Digest, § 2044.
He exhibits with his motion satisfactory evidence of his intermarriage with the injured female since the judgment of conviction was rendered.
The question presented is whether or not the statute applies to cases pending in this court on appeal.
We are of the opinion that the statute does not apply. The prosecution ends when the judgment of conviction is entered, and the purpose of the statute is to provide for a suspension of the proceedings at any time before the rendition of the judgment. There is no authority for suspending proceedings under the judgment. The appeal does not vacate the judgment, but only serves to stay proceedings thereunder, and it, therefore, does not continue the prosecution within the meaning of the statute. Miller v. Nuckolls, 76 Ark. 485.
The statute contemplates that, when the accused shall wilfully and without cause desert and abandon his wife, the court shall be required to ascertain that fact before reviving the-case, and there is no indication, from the language employed in the statute, that the lawmakers intended to confer any such authority upon this court. This affords the best of reasons for holding that the statute was not intended to apply after judgment of conviction. St. Louis, I. M. & S. Ry. Co. v. Hambright, 87 Ark. 242. The motion is, therefore, overruled. | [
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Carleton Harris, Chief Justice.
This appeal is the result of a judgment entered by the Garland County Circuit Court wherein Mrs. Charlotte Jones, appellee, was awarded the sum of $12,500 for injuries allegedly sustained through the negligence of the bus operator of appellant company. According to appellee’s proof, Mrs. Jones, a widow, 91 years of age, attempted to board one of appellant’s buses on September 21, 1959. As she started onto tbe bus, placing her right foot on the step, and her hand on the rod, the bus started up, and the door closed, catching her by the wrist. When the door was opened, she fell to the street, and sustained painful injuries. The driver testified that he did not see appellee, that the bus did not move while she was attempting to get on, and that he did not know anyone had fallen until one of the passengers called out that appellee had fallen. In reaching a determination in this litigation, it is unnecessary to set out the evidence introduced in support of either side, other than to say that such evidence presented a question of fact, relative to appellant’s liability, for the jury to determine. For reversal, appellant relies upon three points, which we proceed to discuss, though not in the order listed in the briefs.
It is asserted that, “The Court Erred in Granting Plaintiff’s Requested Instruction No. 3 and Telling the Jury That Where a Person Is Injured While Attempting to Board a Bus That a Presumption of Negligence on the Part of the Bus Owner is Created.” The questioned instruction reads as follows:
“You are instructed that if you find from a preponderance of the evidence that the Plaintiff, Mrs. Charlotte Jones, was attempting to board the bus belonging to the Defendant and you further find that she sustained injuries because of the manner in which the bus was being operated by the driver, then you are instructed that this creates a presumption of negligence on the part of the Defendant.”
This instruction was erroneous. It, in effect, told the jury if they found that Mrs. Jones was attempting to board the bus, and was injured because of the manner of operation of the vehicle, whether the manner of operation was negligent or otherwise — that negligence was to be presumed. In other words, the traditional function and duty of the jury to determine what facts constitute negligence was taken away. Appellee relies upon the cases of Dillahunty v. Chicago, Rock Island & Pacific Railroad Company, 119 Ark. 392, 178 S. W. 420, and Huckaby v. St. Louis I. M. & S. Railway Co., 119 Ark. 179, 177 S. W. 923. It is true that formerly, in railroad cases, we said that where an injury results, from the operation of the train, to the passenger while, boarding or alighting from the train, a presumption of negligence arises in favor of such passenger, — and further, the Court might so instruct the jury. However, this last is no longer the law. Following the decision of the United States Supreme Court in Western & Atlantic R. Co. v. Henderson, 279 U. S. 639, this rule was changed, and several eases have held similar instructions fatally defective. In Mo. Pac. Railroad Co. v. Vaughan, Admr., 225 Ark. 848, 286 S. W. 2d 6, appellee obtained a judgment against appellant company, and an appeal was lodged in this Court. The judgment was reversed because of the following instruction which had been given, and which this Court held to be erroneous:
“You are instructed that if you find from a preponderance of the evidence in this case that the deceased, Joseph C. Caruth, was injured and killed by the operation of one of the trains of the defendant company, as alleged in the complaint, then you are told and instructed by the Court that the law presumes negligence on the part of the defendant company, and it will be your duty and you are instructed to find for the plaintiff, unless the defendant has overcome that presumption by a preponderance of the evidence in this case.”
Quoting from the Opinion: 767, 136 S. W. 2d 158; and St. L. S. F. Ry. v. Hovley (opinion on rehearing), 199 Ark. 853, 137 S. W. 2d 231.” It will. be noted that the instruction at bar even goes further than the instruction in the Vaughan case, since the instruction before us simply declares a presumption of negligence on the part of the defendant without adding the words “unless the defendant has overcome that presumption by a preponderance of the evidence in this case.” In either event, the instruction constituted error.
“The appellee seeks to defend the above instruction by citing such cases as St. L. S. W. Ry. Co. v. Vaughan, 180 Ark. 559, 21 S. W. 2d 971; Mo. Pac. R. Co. v. Overton, 194 Ark. 754, 109 S. W. 2d 435; and Mo. Pac. R. Co. v. Thompson, 195 Ark. 665, 113 S. W. 2d 720. It is true that in some of these cases an instruction like the one here involved was sustained; but our later cases (necessitated by the decision of the U. S. Supreme Court in Western & Atlantic R. v. Henderson, 279 U. S. 639, 73 L. Ed. 884, 49 S. Ct. 445) have held fatally defective an instruction like the one here involved. Some of our later cases holding the instruction fatally defective are: Mo. Pac. R. Co. v. Beard, 198 Ark. 346, 128 S. W. 2d 697; Mo. Pac. R. Co. v. Ross, 199 Ark. 182, 133 S. W. 2d 29; St. L. S. F. Ry. v. Mangum, 199 Ark.
Were it otherwise, it would still appear that the instruction was erroneous, for our cases have held that the presumption of negligence rule was not applicable to street railway cases. See, inter alia, Hot Springs Street Railroad Co. v. Hildreth, 72 Ark. 572, 82 S. W. 245; Little Rock Ry. & Elect. Co. v. Newman, 77 Ark. 599, 92 S. W. 864. Logically, it seems that this holding would apply to buses, since this means of transportation has replaced the street railway.
It is also urged that Plaintiff’s Requested Instruction No. 5, given to the jury over appellant’s objection, was error. This instruction told the jury that if they found that Mrs. Jones was standing at or near the regular bus stop of the appellant corporation, that the bus in question stopped at or near the regular bus stop for the purpose of taking on passengers, and that appellee was attempting to board the bus, then Mrs. Jones would be considered a passenger. This was a correct declaration of the law. See 10 Am. Jur., § 965.
Appellant complains that the Court permitted appellee’s daughter, in listing separately the medical bills that were incurred because of her mother’s injuries, to state in response to interrogation from appellee’s counsel, that same had not been paid. Appellant asserts that this testimony was not material, and was prejudicial, for it could only serve the purpose of arousing sympathy among the jurors for appellee. Inasmuch as the judgment is being reversed on other grounds, it is not essential that we determine whether the admission of this evidence constituted reversible error. We do agree that the matter of whether the bills had been paid, was immaterial to the pertinent issues, and better practice would seem to indicate that these questions should not be asked.
Reversed and remanded.
In this case, the Court said: “Sec. 6773, Kirby’s Digest, making all railroads responsible for all damages to property caused by the running of trains in this State, is not applicable to street railways. They do not run trains, in the sense in which the term was intended by the lawmakers. The whole act, February 3, 1875, shows that the Legislature did not have in mind street railways. This court, since Little Rock & F. S. Rd. Co. v. Payne, 33 Ark. 816, has often held under this statute that where stock is killed by the running of trains there is a presumption that such killing was through the negligence of the company operating such trains. St. Louis S. W. Ry. Co. v. Russell, 64 Ark. 236; St. Louis, I.M. & S. Ry. Co. v. Bragg, 66 Ark. 248, Little Rock & F. S. Ry. Co. v. Wilson, 66 Ark. 414; St. Louis S. W. Ry. Co. v. Costello, 68 Ark. 32. But no such presumption prevails in the case of street railways. In such cases it is not a question of presumption, but a matter of proof.” Section 6773 of Kirby’s Digest is identical with Section 73-1001, Ark. Stats., Anno. | [
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George Rose Smith, J.
This is a suit by the appellants, the heirs of Lewis L. Watkins, to establish their title to a 120-acre tract that was owned by Watkins at Ms death intestate in 1901. The chancellor sustained a demurrer to the complaint, holding that it showed the plaintiffs to be barred by limitations and laches. The proceeding was accordingly dismissed.
WatMns was survived by his widow and five children, the oldest child then being eight years old. The plaintiffs in this case are the four children now living and the three daughters of the fifth child, who died sometime before this suit was begun in 1960.
After Watkins’ death in 1901 his widow, Jennie, continued to live on the land now in controversy. She remarried and had another cMld, Oliver Woods, by her second husband. Upon the death of Jennie Watkins Woods in 1905 her brother, William H. Johnson, who was named as a defendant, was appointed by the probate court as guardian for the five Watkins children.
The complaint asserts two alternative causes of action against Johnson and those who claim under him. It is first alleged that during the minority of the Watkins children their guardian, Johnson, wrongfully obtained from each of them a quitclaim deed to an undivided one-sixth interest in the land now in dispute, each deed having been executed within a year or two before that particular grantor attained his majority. In asking for a cancellation of the deeds the plaintiffs assert that Johnson defrauded and overreached his wards by paying an inadequate consideration for the land, by concealing from the minors all knowledge of their legal rights and of the fact that he had mismanaged and embezzled their funds, and by dealing at all with the wards while he was their fiduciary. It is also alleged that in 1915 Johnson-as guardian redeemed the land from an earlier tax forfeiture.
The demurrer to this first count in the complaint was properly sustained, for the plaintiffs’ delay of almost forty years is fatal to their rights. A suit to set aside a conveyance by a minor must ordinarily be filed within seven years after the grantor becomes of age. Walker v. Ellis, 212 Ark. 498, 207 S. W. 2d 39. The fact that Johnson wrongfully acquired an interest in the property of his wards would entitle them to impress the land with a constructive trust, Williford v. Williford, 102 Ark. 65, 143 S. W. 132; Waldstein v. Barnett, 112 Ark. 141, 165 S. W. 459; but the statute of limitations runs in favor of the trustee of such a trust. Matthews v. Simmons, 49 Ark. 468, 5 S. W. 797; Rest., Trusts, Ark. Anno., § 219.
In seeking to avoid the bar of the statute the appellants cite a section of the Revised Statutes, repealed by the Probate Code, which provided that a guardian ££ shall not dispute the right of the ward to any property that shall have come to his possession as guardian.” Rev. Stats., ch. 72, § 23; Ark. Stats. 1947, § 57-353. A sufficient answer to this argument is that the statute by its terms applies to property possessed by the guardian as such, not to property claimed by him individually through a transaction with his ward. There is a similar common law rule by which a tenant is estopped to question the title of his landlord, but of course this principle does not prevent the tenant from buying the property from his landlord and asserting the title so acquired.
In their second count the plaintiffs seek to recover a one-sixth interest in the land. It is asserted that J ohnson obtained quitclaim deeds, each conveying an undivided one-sixth interest, from the five Watkins children and from Oliver Woods, their half brother. It is alleged that the Watkins children inherited the entire fee simple title from their father and that Oliver Woods had no interest whatever in the land. Hence it is said that the five deeds from the Watkins children conveyed only an undivided five-sixths interest in the land, leaving them with a sixth which they held as tenants in common with their guardian and his grantees.
This part of the complaint is not demurrable, for it does not show on its face that the cause of action is barred. The complaint indicates that the defendants have been in possession of the land, but the possession of a tenant in common is not adverse to Ms cotenants until notice of a hostile claim is brought home to them. Singer v. Naron, 99 Ark. 446, 138 S. W. 958. There is no allegation of such a notice to these appellants. The appellees rely upon the fact that the complaint alleges that Johnson conveyed the land to his son in 1943 and that the grantee took possession. Even so, the younger Johnson would have had to claim title to the whole, openly and notoriously, in order for his conduct to have amounted to an ouster of his cotenants, Parsons v. Sharpe, 102 Ark. 611, 145 S. W. 537, and there is no allegation to that effect. On demurrer doubts are to he resolved in favor of the sufficiency of the complaint.
As to the first count the decree is affirmed; as to the second it is reversed and the cause remanded with directions that the demurrer he overruled. | [
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George Rose Smith, J.
The appellant, in an effort to collect a $5,346.47 judgment against Harold and Velma Millsap, obtained a writ of garnishment against the appellee. The garnishee failed to answer the writ within twenty days after it was purportedly served. Later on, and before the entry of judgment by default, the garnishee filed a motion to quash the service. This appeal is from an order granting that motion and quashing the service of the writ of garnishment.
There is ample evidence to support the trial court’s finding that the attempted service was invalid. The deputy sheriff’s return merely recited that he had served the writ by delivering a copy to Shorty Parsons, vice president of the appellee. The proof indicates that Shorty Parsons was not in control of the corporation’s business. The governing statute requires that the service be had upon the president of the corporation or, in his absence, upon certain other officers, but there is no authority for serving a vice president not in control of the business. Ark. Stats. 1947, % 27-346. The return did not recite, and the evidence does not show, that the president of the corporation was unavailable. The purported service was therefore void. Ark. Coal, Gas, etc., Co. v. Haley, 62 Ark. 144, 34 S. W. 545; Brick v. Sovereign Grand Lodge, 196 Ark. 372, 117 S. W. 2d 1060.
It is insisted that the garnishee entered its appearance by filing this motion to quash the service:
“Comes now the above named garnishee and for its motion to quash service of the writ of garnishment filed herein alleges and states as follows:
“1. That said writ was not served upon the garnishee in the time or manner prescribed by law.
“Wherefore, the garnishee prays that the service of said writ be quashed.”
The appellant argues that the filing of this motion constituted a general appearance, because the garnishee did not expressly state that it was appearing specially and only for the purpose of the motion.
This contention is untenable. Whether the filing of a particular pleading amounts to a general appearance or a special one is a question of substance rather than of form. Smith Chickeries v. Cummings, 224 Ark. 743, 276 S. W. 2d 48. Elsewhere it is uniformly held that a pleading such as a motion to quash, which raises only a jurisdictional issue, is a special appearance regardless of whether it contains an express statement to that effect. In re Hite’s Estate, 155 Calif. 390, 101 P. 8; Clark Milling Co. v. St. L. S. W. Ry. Co., 33 Ga. App. 660, 127 S. E. 783; Whitesides v. Drage, 56 Ind. App. 679, 106 N. E. 382; Driscoll v. Tillman, 165 Wis. 245, 161 N. W. 795.
Our own cases are in harmony with those cited. The mere filing of a motion to quash service is not a general entry of appearance, for the pleader does not intend to submit to the court’s jurisdiction. Gooch v. Jeter, 5 Ark. 383; Ferguson v. Ross, 5 Ark. 517. “This court has adopted the rule that any action on the part of the defendant, except to object to the jurisdiction, which recognizes the case as in court, will amount to a general appearance.” (Italics added.) Payne v. Stockton, 147 Ark. 598, 229 S. W. 44. It is clear that a motion such as the one before us, asking no relief except that the service be set aside, does not necessarily defeat its own needs by bringing the pleader into court for all purposes.
The holding in Harrison v. Bank of Fordyce, 178 Ark. 760, 12 S. W. 2d 400, is not contrary to this view. There the court mentioned the fact that the motion to dismiss did not recite a special appearance, but the decision was based upon a finding that the motion was in the nature of a demurrer, seeking a dismissal of the complaint rather than a mere quashing of the service. A similar set of facts was considered in Roach v. Henry, 186 Ark. 884, 56 S. W. 2d 577. After reviewing our cases we are convinced that this garnishee’s motion did not have the effect of entering its appearance generally.
There is also a suggestion in the appellant’s brief that the appellee went beyond the scope of its motion: and sought to develop the merits of the case by proving that it was not indebted to the Millsaps. The record does not support this contention; the only point actually in issue was whether the service of the writ was valid.
Affirmed. | [
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Hughes, J.
The appellant sued the appellee before a justice of the peace, and the summons issued by the justice was served by the appellant’s attorney. Moody moved to quash the service upon him, because made by appellant’s attorney. The motion was sustained, and thereupon the cause was dismissed as to Moody, who then tendered to the appellant the amount of his debt, which appellant refused to receive, which Moody thereupon paid into court. The appellant appealed to circuit court, where appellee renewed the motion to quash, which was sustained, and he appealed to this court.
The service of process, in a suit, should be made by . . an mditterent person, and not by a party, or one inter- • ested in the suit, as attorney, or otherwise. Weeks on Attorneys, sec. 122; Ingraham v. Leland, 19 Vt. 304; White v. Haffaker, 27 Ill. 349.
There does not appear to have been any intention upon the part of appellant to appear in the action, and his tender and subsequent payment of the debt into court, was not an appearance to the action.
The judgment is affirmed. | [
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Riddick, J.
This was an action of ejectment, brought by the appellant against appellee to recover possession of the following tract of land in Drew county, Ark., to-wit: The N. half of the NE. quarter of Section 3, Township 15 S., R. 6 West of 5th principal meridian. Appellee in his answer alleged, in substance, that he became the owner of the land by virtue of a purchase of the same at a sale of lands lawfully held by the sheriff and collector of Drew county in the year 1887 for the non-payment of taxes for the year 1886; that the same had not been redeemed; that a deed in due form of law had been made and delivered to him by the clerk of said county conveying said lands to him ; that under said deed he had taken actual possesion of said land; and that he had been in the open, adverse and continuous possession of said land for over two years before the commencement of this action, and that appellant’s right of action was barred. The case was submitted to the court sitting as a jury, and, the finding and judgment being against appellant, he appealed.
It is contended that the tax title under which defendant holds is void for several reasons. The description of the land by which it was advertised and sold is as follows: “N. NE. Section 2, Township 15, Range 6, 87.19 acres.”
A description of the land sufficient to identify it and notify the owner is essential to a valid sale in a proceeding to sell land for the non-payment of taxes. Was the ■above description sufficient to authorize a valid sale? A question similar to this came for determination before the supreme court of Minnesota. The land had been described in the tax proceedings as follows: S. 2 NT. E. 4 of a designated section, township and range. The court from .which the case was appealed had permitted evidence to be introduced to show that such descriptions in that locality were common, and the meaning thereof. In deciding the case, the court said : “We are of the opinion that the attempted description is fatally defective. As is found in this case by the court below, there may be a local usage in that part of the State where the judgment was entered, according to which this description would be understood to mean the south half of the northeast quarter, * * but there is no general usage of this kind. Neither is this the import of the letters and figures employed, according to the common and ordinary usages of the English language, as the same is spoken or written in this State or in general, nor as it is used in the judgments of the courts.” Keith v. Hayden, 26 Minn. 212; 2 N. W. 495. The supreme court of North Dakota followed this ruling in a case where the sufficiency of a similar description was involved. “We hold,” said the court, “that the alleged description is wholly insufficient as a description ■of the lands in question, or of any lands, and that it cannot be sustained as a means of identifying the lands for purposes of assessment for taxation, or for the ulterior purpose of transferring the title of the realty from the general owner to the tax-title holder and his successors in interest. The alleged description is neither written out in words, nor is the same expressed “by characters or abbreviations commonly used by conveyancers, or generally understood and used by the people at large in describing land.” Powers v. Larabee, 49 N. W. 724.
It is said that the purposes in describing the land are: “First, that the owner may have information of the ■claim made upon him or his property; second, that the public, in case the tax is not paid, may be notified what land is to be offered for sale for the non-payment; and, third, that the purchaser may be able to obtain a sufficient conveyance.” Cooley on Taxation (2d ed.), 405. A description of land in a tax proceeding that does not sufficiently identify it “defeats one of the most just and obvious purposes of the statute—that of giving the owner notice that his land is to be sold, so that he may pay the tax and prevent the sale,” or at least redeem his land before the expiration of the time allowed for that purpose. To effect the laudable purpose of protecting the owner, the description should be such as will be readily understood by persons even ordinarily versed in such matters. A description which is intelligible only to persons possessing more than the average intelligence, or the use and understanding of which is confined to the locality in which the land lies, is' not sufficient. Schattler v. Cassinelli, 56 Ark. 178.
A description of the land by the abbreviations commonly used to designate government subdivisions sufficiently identifies it; but the use of abbreviations in a tax assessment or notice must be confined to those commonly used and understood. Had the description of the land been “N. \ of N. E.” followed by section, township and range, we should have felt no doubt in saying that it correctly designated the land in controversy by abbreviations commonly used and understood, but the letters N. NE. do not, to our minds, have such well defined and accepted meaning. For this reason we feel compelled to hold that the description of the land in controversy as the “N. NE. Sec. 3, Town. 15, Range 6, 87.19 acres” was not a description by abbreviations the knowledge and use of which is so general as to warrant the court in holding that they sufficiently identify the land to be sold. On the contrary, we hold that it was not a sufficient description, and that the sale of the land must be treated as a sale without notice, and therefore void.
But it does not follow, because the sale was without n°tice and void, that the plaintiff can now recover. The defendant in his answer set up the two-years statute of limitations, alleging that he had been in the actual, adverse and continuous possession of the land in controversy for over two years before the suit was brought, claiming to be the owner thereof under the deed executed to him in pursuance of said tax-sale. It has never been seriously doubted that, in cases where the purchaser at a sale of land for the non-payment of taxes takes actual possession of the land purchased, under a proper deed conveying said land to him, the legislature may prescribe a period of limitation after the expiration of which the title of the original owner is barred. By the adverse possession of the purchaser the owner is excluded from the possession of his premises, and notified that an adverse claimant, hostile to his interests, holds the land. Public policy, no less than justice to the tax purchaser, requires that he should bring his suit within a reasonable time, in order that all contested questions may be put at rest while the facts are recent and susceptible of proof. Cooley on Taxation (2 ed.), 557. In this case it is not contended either that no taxes were due, or that they were paid before the sale, or that the land was redeemed afterwards. The deed is in proper form, and correctly describes the land. The agreed statement of facts justified the court in finding that the defendant had held actual, continuous and adverse posession of the land under his deed for over two years before the commencement of this action. Under our statute this barred the right of the appellant to recover. Mansf. Dig., sec. 4475; Sims v. Cumby, 53 Ark. 418; Helena v. Hornor, 58 id. 151; Cairo & Fulton R. Co. v. Parks, 32 id. 132.
The judgment of the circuit court was therefore correct, £nd must be affirmed.
We were asked to decide other questions raised by the record in this case, but as the right of the appellant is barred, and as those questions are under consideration by this court in another case now before the court, we have thought it unnecessary to do so.
Bunn, C. J., and Wood, J., being disqualified, did not participate in the decision of this cause. | [
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Riddick, J.
In this case the appellant was arrested on a warrant, issued by a justice of the peace of Lee county, charging him • with an unlawful sale of liquor. He was tried before the justice of the peace, and .convicted, and took an appeal to the circuit court. On ■fche trial in that court, there was proof tending to show that the appellant loaned the witness for the State a bottle of whiskey, under an agreement with him that he would return it in kind at some future day. The defendant, by his attorney, requested the court to instruct, in effect, that a delivery of whiskey under an agreement, made in good faith, that it should be replaced by the return of an equal quantity of other whiskey would not be a “sale”, within the meaning of a statute forbidding the sale of liquors. The court refused to give such an instruction, and, in effect, charged the jury that such a transaction would come within the meaning of the word “sale,” used in the statute, and that proof of an exchange of liquor for other liquor would sustain a conviction on a charge of selling liquor. The defendant excepted to this ruling of the court, and the question for us to determine is whether it was correct or not.
There is not wanting eminent authority to uphold the ruling of the learned judge of the circuit court. In the case of Commonwealth v. Abrams, 150 Mass. 393, the Supreme Court of Massachusetts held that a delivery of intoxicating liquors upon an agreement, express or implied, that other liquor will be returned in payment for it is a ‘ ‘sale, ’ ’ within the meaning of the statute of that State relating to the sale of intoxicating liquors. The correctness of this ruling has been doubted, and the decided, weight of authority seems to be against it. Mr. Black, in his work on Intoxicating Liquors, speaking of this- and other cases from the same court, says : “We think these decisions cannot be sustained on principle. ‘Sale,’’ we are told, is a word of precise legal import, both at law and in equity. It means, at all times, a contract between parties to give and to pass rights of property for money, which the buyer pays or promises to pay to the seller for the thing sold.’” Black on Intoxicating Liquors,, sec. 403; Williamson v. Berry, 8 How. 495. He then proceeds to argue that where the legislature has used a word of precise legal import like the word “sale,” the courts are not justified in adding to the law as-enacted by making such word include barters, exchanges and the like. Black on Intoxicating Liquors,, sec. 403.
Having regard to the rule that criminal statutes are to be strictly construed, this court has uniformly held that, in criminal statutes, the word “sale” does not include an exchange. Cooper v. State, 37 Ark. 412; Gillan v. State, 47 Ark. 555. In the last mentioned case, Chief Justice Cockrill, who delivered the opinion of the court, held that exchanging liquor with a minor is not within the terms of the statute prohibiting the sale of liquors to minors, and that proof showing that the defendant exchanged liquor with a minor for other liquor would not justify a conviction under an indictment charging the defendant with having sold liquor to a minor without the consent of his parent or guardian in writing. These cases are supported by a citation of cases from other States.
The prosecuting witness in this case stated that he was sick, and procured the whiskey to be used as a medicine, under promise that he would return it 'in kind. The law does not allow sales without license or within districts where sales are prohibited, even to sick people. To do so would be to encourage subterfuges and devices to cover illegal sales. But, under an act prohibiting only the sale or giving away of intoxicating liquor, it might not be unreasonable for one to believe, if his neighbor or friend became sick, that he could, without violating the law, deliver him a bottle of whiskey, under a promise in good faith that it should be returned in kind. Por the court to hold that such a transaction comes within the meaning of the word “sale” would be to render all persons who had, even in good faith, made such exchanges liable to heavy fines unless the offense was barred by the statute of limitation. When one procures liquor, and agrees, as the only consideration for the same, to return an equal quantity of liquor of the same kind, such a transfer is, in common parlance, usually denominated a “loan,” and does not come within the legal meaning of the word “sale.” If it be desirable to prohibit such exchanges, it is safer to allow the legislature to do so by an act forbidding not only the “sale” but also the bartering, exchanging or giving away of intoxicating liquors. The law wili not tolerate subterfuges of any kind; and if the defendant, under pretense of making a loan of whiskey, to be returned in kind, actually sold the whiskey, as alleged, he should be punished. But whether he sold it, or only in good faith exchanged it for other liquor of the same kind,.is a question of fact; and it is his right,to have that question submitted to a jury, to be determined by them after a consideration of all the facts and circumstances surrounding the transaction. Being of opinion that it was error to refuse to submit this question to the jury, the judgment of the circuit court is reversed, and the cause remanded for a new trial. As to whether a transfer of liquor fob a consideration to be paid in property of a kind different from the liquor delivered would be a “sale,”- within the meaning of the statute, the court does not determine. | [
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Paul Ward, Associate Justice.
The issue for deci - sion is: When is a chicken raiser a farmer? This issue, as it appears from the record in this case, presents a question of law rather than a question of fact.
Appellant, Louise Franklin, as an employee of appellee, Mitchell McCoy, (uninsured) filed a claim for compensation before a Workmen’s Compensation Referee for an injury received on July 18, 1959 arising out of and in the course of her employment. The only real question presented to the Referee was whether appellee’s employees were engaged in “agricultural farm labor”. The Referee and (later) the full Commission held the said employees were not so engaged. On appeal the Circuit Court held to the contrary and dismissed appellant’s claim — hence this appeal.
• Ark. Stats. § 81-1302 (c) 1 defines “employment”, as it is material here, to mean:
‘ ‘ Every employment carried on in the state in which five [5] or more employees are regularly employed by the same employer in the course of business or businesses, except domestic service, agricultural farm labor. . . .” (Emphasis added.)
For the purpose of this opinion it will be assumed that appellee employed five or more persons. The Com mission so held, and we find substantial evidence to support that holding. It was not necessary for the Circuit Court to pass on this particular question since it held appellee’s employees were not engaged in “agricultural farm labor”.
Facts. The pertinent facts on which the Commission and the Circuit Court based their respective decisions are not in dispute. Appellee owns 188 acres of land of which 144 are woodland. For many years prior to about 1958 he was unquestionably engaged in farming the land by raising cotton, hay, peanuts, popcorn, corn, soybeans, hogs and cattle. He was not raising any of those things however when appellant was injured in July, 1959. The same situation obtained in 1958 with the exception that he did raise some hay but did not get to cut and bale it because of lack of help.
In 1946 appellee began raising chickens for market in connection with his other operations and has continued raising chickens for the market ever since. By 1959, and possibly sooner, the chicken business had grown to the extent that appellee had (on the land) eight chicken houses containing approximately 75,000 chickens at a given time. In that year he marketed some 5,500 chickens twice a week. Feed for the chickens was not raised on the land, but grain was purchased and prepared on the land by appellee’s employees. The result was that in 1959, and possibly in 1958, nothing was produced on appellee’s land except chickens for the market.
The Issue. Under the above state of facts was appellee engaged in agricultural farming in 1959 or, to be more specific, was appellant at the time of her injury engaged in “agricultural farm labor” in the sense those words are used in the statute above quoted? In trying to find the answer to the above question we find no certain guidepost in our own or other decisions.
Our Court, on three occasions, has considered the clause in our statute excepting “agricultural farm labor” from Workmen’s Compensation coverage. In Gwin v. J. W. Vestal & Son, 205 Ark. 742, 170 S. W. 2d 598, the Court held that Gwin was not covered by the Workmen’s Compensation Act although he was, at the time of the injury, a night watchman at a greenhouse located on a farm where hay was also grown. The decision apparently turned on the finding that floriculture or horticulture was a form of farming. In so holding the Court pointed with approval to a statement that “agricultural labor” had a broader meaning than just “farm labor”. We take this to mean that there could be some phase of activity included in agricultural labor that might not be included in farm labor.
In the case of Bailey v. Great American Indemnity Company, et al, 221 Ark. 469, 254 S. W. 2d 322, it was held that Bailey was covered by the Compensation Act for an injury received by falling from a tree on an 18-acre (so-called) farm belonging to his employer. This decision is of little value to us here because it seems to have been based on the fact that the so-called farm was merely a sideline to another (non-farming) operation also owned by the employer and was used merely as an advertising or diversional activity. A similar result on similar grounds was reached in the case of Dockery v. Thomas, 226 Ark. 946, 295 S. W. 2d 319, where the claimant was engaged in crop dusting. In effect the Court said there could be no logical or reasonable similarity between crop dusting and farming where the employer was engaged solely in the business of commercial crop dusting.
In order to determine what definition the courts and authorities have given to the term “agriculture” we have examined the following: 3 C. J. S. 365; 2 Am. Jur. 395; Hight v. Industrial Commission, 44 Ariz. 129, 34 P. 2d 404; Greischar v. St. Mary’s College, 176 Minn. 100, 222 N. W. 525; De Fontenay v. Childs, 93 Mont. 480, 19 P. 2d 650; and Beyer v. Decker, 159 Md. 289, 150 Atl. 804. All these cases and authorities say that feeding and raising cattle and horses come within the term agricultural farming; some of them include poultry.
In the case of Fleckles v. Hille, et al, 83 Ind. App. 715, 149 N. E. 915, the employer owned and operated a farm consisting of 40 acres, 10 acres being in cultivation and the rest of it being used for the production of eggs and poultry for the market. The principal part of claimant’s work was feeding and caring for the poultry, and claimant was so engaged when injured. The trial court held claimant was not a farm or agricultural employee and accordingly denied his claim. The appellate court reversed the trial court on the ground that the term “agriculture” means not only tilling the soil but includes raising, feeding and management of livestock and poultry. To the same effect is the decision in Bennett v. Stoneleigh Farms, Inc., et al, 4 N. Y. S. 2d 255, 254 App. Div. 790, where claimant worked on a farm where only cattle and chickens were raised.
Webster’s Third International Dictionary includes in its definition of “agriculture” the raising of animals useful to man and the disposition of same for market.
In view of the foregoing we are unwilling to say the legislature, in using the words found in the statute heretofore quoted, meant that raising chickens (in the manner previously set out) is not an agricultural farm activity. If that is what the legislature meant we pass to them the responsibility of saying so in unmistakable terms. The legislature may have indicated what its action would be in this situation when it passed Act 166 of 1961 where it defined the term “agriculture” to include the “cultivation, growing, harvesting and/or marketing of domesticated fish”.
It is accordingly our conclusion that the trial court was correct in dismissing the appellant’s claim.
Affirmed.
McFaddin, J,. not participating. | [
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George Rose Smith, J.
In 1958 the city of Fort Smith bought from the appellees, Charlie France and his wife, a small tract of land near Lake Fort Smith, which is the municipal water supply. Two years later the sellers brought this suit to reform the deed, contending that by mutual mistake the description included more land than they meant to convey. This appeal is from a decree granting the prayer for reformation. For reversal the city contends that no mutual mistake existed, for the reason that the city commissioners intended to accept the deed in the exact form in which it was presented to them by the sellers.
France owned several acres near the lake. In negotiating the sale in question he talked only with John Luce, the superintendent of the city’s water department, and with Ira Cole, the caretaker of the lake property. France testified that he proposed to sell to the city his garden lot, which was completely enclosed by a fence and contained 1.3 acres. He says that during the negotiations he showed this enclosed parcel to Luce and Cole, who understood that it was the property being offered to the city. We have some difficulty in following the testimony, because the witnesses repeatedly referred to a plat that was not introduced in evidence and is not before us. As we understand the proof, however, the chancellor was not in error in finding that the plaintiffs proved by clear and convincing evidence that Luce and Cole thought that the city was buying the enclosed garden lot.
After Luce had examined the property he suggested that France have a deed prepared so that it could be tendered to the city commissioners. France accordingly went to an abstract office, where the abstracter, apparently after consulting his records, prepared a deed containing this description of the land being conveyed:
“All that part of the Southwest Quarter of the Northwest Quarter of Section 30, Township 12 North, Range 29 West, which lies East of the Shepherd Springs Road as now located over and across said forty, and North of that part of said forty owned by the City of Fort Smith, and that part of said forty owned by Joe G-. Bennett and others and described in deed to them, of record in the office of the recorder of Crawford County, in Deed Record 178 at Page 52.”
This description was erroneous in that it described a total of 3.9 acres instead of the 1.3-acre lot that France meant to offer the city. France and his wife executed the deed and delivered it to the office of the municipal water department. A few days later the purchase was approved at a meeting of the city commissioners (Fort Smith, has a commission form of government), and the purchase price of $3,000 was paid. The chancellor reformed the deed to describe only the garden lot instead of the entire 3.9 acres.
It is conceded that Luce and Cole did not have the power to bind the city by contract. That authority rested solely in the board of commissioners. Upon that premise the city insists that its authorized agents could not have acted under a mistake. The commissioners did not inspect the land and are not shown to have known that the sellers meant to convey the garden lot only. Hence, it is argued, the commissioners must be taken to have intended to purchase the 3.9 acres described in the deed they accepted.
This argument might have merit if the deed had specifically and intelligibly described 3.9 acres, so that it could be said that the commissioners knew that the city was to receive that quantity of land. Such a patent factor was involved in Armory Comm. v. Palmer, 253 Ky. 425, 69 S. W. 2d 681. There the Palmers negotiated with the adjutant general in an effort to lease their land to the state armory commission. The Palmers and the adjutant general intended for the lease to be absolutely binding for a ten-year term, but by mistake a provision was inserted which empowered the state to terminate the lease at the end of any semiannual period. The lease was approved by the armory commission, which had the sole power to act for the state. Several of the commissioners testified that they would not have approved the lease if it had not contained the clause permitting the state to terminate it before the expiration of the term. The court properly held that the adjutant general’s mistake was not attributable to the commissoners, for they were unaware of it and consciously intended for the cancellation provision to be included in the contract.
The case at bar differs from the one just cited in that here the city commissioners could determine nothing whatever about the size or shape of the land merely by reading the erroneous description in the deed. The tract was described simply as that part of the forty lying east of Shepherd Springs Road and north of property owned by the city and by Bennett and others. Within the limits of such a description the tract might vary in size from a fraction of an acre to almost the entire forty. Hence the commissioners conld not have learned from the language of the deed that the city was to receive 3.9 acres. Only one of the commissioners testified at the trial, and he did not even intimate that he approved the transaction with the conscious realization that the city was to obtain 3.9 acres.
The proof is not as complete as it might be, but we may fairly infer from the record that Luce, who had viewed the garden lot, recommended its purchase to the commissioner in charge of public works, and he in turn recommended it to his fellow commissioners. Obviously the board did not blindly authorize the expenditure of $3,000; so one of two possibilities must have existed. First, Luce may have informed the board, through the commissioner of public works, that the city was being offered the enclosed garden lot. In that case the board consciously shared France’s mistake in thinking that the deed described only that lot. Secondly, Luce may have merely recommended the purchase as a desirable one for the city, without describing the land in detail. In that case the commissioners unquestionably meant to purchase the land that Luce had in mind when he made his recommendation. Any other view of the matter leads to the absurd conclusion that a mutual mistake was an impossibility in the circumstances, so that the city could not have obtained reformation even if the deed had erroneously described a few square feet of nominal value instead of the garden lot that was really the subject of the contract.
The city relies mainly upon Fagan v. Graves, 173 Ark. 842, 293 S. W. 712. There a mother and son were engaged in litigation about the ownership of two lots standing in the son’s name. They agreed to compromise their dispute by dividing the property. The son had stepped it off and thought that if he retained one lot and six feet off the side of the other he would acquire the land upon which a small building was situated. The son’s deed to his mother was so prepared and executed, but it later developed that he had been mistaken, that the six-foot strip did not include all of the building. In affirming the chancellor’s refusal to reform the deed we observed that the son’s proof of mutual mistake was not clear, decisive, and unequivocal.
As we interpret that case the mother’s dominant intention was open to question. If she meant to release the site of the building, whether or not it was correctly described in the deed, then a reformation would have been proper. On the other hand, if she meant to release only the six-foot strip, regardless of the location of the building, then there was no mutual mistake, for she did what she intended. By contrast, in the case at hand the commissioners could not have understood that the city was getting title to 3.9 acres, for that information was not supplied either by the bare language of the deed or by Luce. Hence the chancellor properly reformed the instrument to correct what was actually a mutual mistake.
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Batti,:©, J.
(after stating the facts.)
First. Was the wife a competent witness ?
The statute provides that the husband and wife shall be incompetent to testify “for or against each other.” Did she testify for him? This action was brought for the sole benefit of the infant. She was the real party in interest. The husband did not sue, but the infant by him as next friend. He was merely the manager and conductor of the suit for the minor. The court could remove him at pleasure, and substitute another person for him. Mansfiéld’s Digest, sec. 4955. Mrs. Rexroad did not testify for him, but for her child. Bonett v. Stowell, 37 Vt. 260; Lapleine v. Rd. Company, 40 La. An. 663; Van Fleet v. Stout, 44 Kas. 526; Belk v. Cooper, 34 Ill. App. 649. The fact he was liable for costs did not disqualify her. Bonett v. Stowell, 37 Vt. supra. She was a competent witness.
Second. Were the instructions properly given?
In Railway Co. v. Murray, 55 Ark. 254, we said : “ Railroad companies, in the carriage of passengers, are required to use the utmost care and foresight, and are held responsible for the slightest negligence. The first and most important duty incumbent on them is to provide for the safety of their passengers. To this end they are required to provide all things necessary to their security reasonably consistent with their business and appropriate to the means of conveyance employed by them, and to exercise the highest degree of practicable care, diligence and skill in the operation of their trains.”
As to the cars and machinery furnished for the carriage of passengers, the fitness of the road-bed, the competency and faithfulness of the servants, and mechanical appliances used to insure safety, the railroad carrier is bound to use the highest reasonable skill and diligence, because the passenger in that respect must rely solely on the carrier, and can do nothing to insure his personal safety. As to the dangers which a passenger of ordinary prudence would foresee and avoid, no duty is imposed on the carrier. In such cases the carrier has the right to rely on human experience, and presume that the passenger will act upon the principles of common sense, and the motive of self-preservation common to mankind, and avoid the danger. The carrier is not bound to anticipate what a reasonable and prudent person, under the circumstances in which it is placed, guided by a reasonable estimate of probabilities, would not have foreseen. In the case of children of tender years, in the care of their parents, upon a train, it would have a right to rely and act on the presumption that the parents would take such care of them as the natural love of a prudent father or mother would prompt them to exercise, under such circumstances. But when its employees operating the trains see that they are or will be exposed, or, seeing them, and exercising reasonable care and diligence, ought to know that they are or will be exposed to danger or injury by the acts or neglects of its servants, it has no right to act upon such a presumptiQii, but it is its duty to use all reasonable and practicable care and diligence to avoid the danger and avert the injury. In such cases the negligence of the parent cannot be imputed to the infant child as contributory neglig'ence for the purpose of relieving the carrier of liability to the child for damages on account of its failure to discharge its duties. Winter v. Kansas City Cable R. Co. 6 Lawyer’s Reports Annotated, 536, and notes ; Wymore v. Mahaska County, ib. 545, and notes; Beach on Contributory Negligence (2d ed.), sets. 116,131, and cases cited.
In the instructions given in this case at the instance of the plaintiff, the court told the jury that if the conductor, in passing out of the car in which plaintiff was riding, might, by the exercise of, reasonable diligence, have seen her while standing at the water cooler, near the door, and, knowing that the train was about to stop, closed the door negligently or carelessly, and thereby injured her, the defendant would be liable for damages. According to this instruction, the conductor had no right to rely on the mother taking care of her child, but was bound to use reasonable diligence in seeing that she was not exposed to danger at the time she was injured. This was error, for the reason indicated.
Reversed and remanded for a new trial. | [
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Wood, J.,
(after stating the facts). It was error to exclude the testimony of the witnesses to the effect “that appellants had been making staves and getting timber off the lauds from which the logs in controversy were cut, and that they had claimed to own the same for the last five years, and that it was known as the Oxley Stave Company’s land.” The defendants stand mute, and put the appellant to the test of its right to recover the possession upon the strength of its own title. They set up no affirmative title in themselves. Under this state of case, it devolves upon the appellant to show only a prima facie right to the possession. Has it done this? The proof shows that one of the appellees admitted that most of the logs in controversy were not cut on lands belonging to them, and that they knew that the lands from which these logs were taken had been claimed by the Oxley Stave Company for six years. With this knowledge, they permit the agent of the appellant company to take charge of the logs in controversy, as the property of the company, to put the brand of the company upon them, and, without objection, to roll them into the river, and to raft them to Corning. On the contrary, instead of objecting, assisting one who had peacefully and lawfully taken possession of the property under a claim of ownership to raft it down the river. Then, in the absence of the one who had thus taken possession, but was still evidencing his claim of ownership, they proceed forcibly to take the possession, and threaten even a breach of the peace, and personal violence, in its retention. The conduct of appellees does not present them in any favorable attitude before this court. The testimony of Barnett tends to show that they are self-* confessed trespassers upon some one’s lands—one of them said the lands of a firm in Illinois, but that “the Oxley Stave Company had claimed them for six years.” It was the duty of the appellees, when the agent of appellant first took charge of these logs, and branded them, and began to roll them in the river, to speak out and assert their rights then, if they had any. This would have been the ordinary and natural course of human conduct, especially of those who knew or believed themselves the bona fide owners of property. Nailing to do so, their conduct was tantamount to an admission of the rights of appellant to the possession of the property. The proof by several witnesses that the land was known as the appellant’s land, that it claimed it, and had exercised acts of ownership, such as cutting timber, making staves, etc., for five or six years, would tend to show that appellant itself was not a trespasser, but had the right to the timber of the land.
If the appellant, as this proof tended to show, was or had been in the possession of this land for five or six years, for the purpose of cutting timber, and claiming the land as its own, the presumption would be that it was the true owner, until the contrary was shown. Barry v. Otto, 56 Mo. 177; Smith v. Lorillard, 10 Johns. 356; Crockett v. Morrison, 11 Mo. 3; Dale v. Faivre, 43 Mo. 556. Certainly these facts, taken in connection with appellees’ own conduct, were sufficient to make a frima facie case of appellant’s ownership and right to the possession of the logs in controversy.
The objection to the instructions given was in gross, and we have only considered them to the extent of ascertaining that some one them is correct, which we find to be the case.
Nor the error indicated the judgment is reversed, and cause remanded for new trial.
Riddick, J., was disqualified. | [
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Riddick, J.
The appellant, Houston Stafford, was, on the 6th day of May 1892, indicted by the grand jury of Washington county for the crime of forgery. The indictment charged, in substance, that he forged a certain instrument of writing, which purported to be a check or order of Funsten & Co. for $39.67, in words and figures as follows, to-wit:
“Funsten & Co. Commission.
“$39.67 St. Bouis, 30th Jan. 1890.
“Pay to the order of W. H. Peters thirty-nine and 67-100 dollars. Funsten & Co.
“Merchants National Bank, St. Bouis.
“No. 41383.
Indorsed on the back, “W. H. Peters.”
—That said forgery was made with the intent to cheat and defraud said W. H. Peters and Funsten & Co.
This indictment was pending against the defendant until October, 1893. The case’ was then re-submitted to the grand jury, and on October 30, 1893, another indictment for the same offense was returned against appellant. The second indictment set out the same check, but, instead of alleging that defendant forged the check, it alleged that he forged the indorsement of “W. JEL Peters” upon said check, and that the forgery was committed with the intent to defraud H. K. Wade. On a trial upon the second indictment, the.evidence tended to show that defendant had got possession of the check of Funsten & Co., which was made payable to W. H. Peters ; that he forged the indorsement “W. H. Peters” on the back of the check, and induced H. K. Wade to cash the same for him, and thus cheated Wade out of that sum of money. Defendant was convicted, and sentenced to two years in the State penitentiary.
It is contended by appellant that the two indictments were for different offenses, and that, over three years having elapsed from the date the crime is said to have been committed before the finding of the last indictment, upon which appellant was convicted, the offense was barred by our statute of limitations. A similar question came before this court in the case of Lay v. State, 42 Ark. 108. The facts were that Lay was first indicted for an assault upon John W. Sivils with a gun, with the intent to kill him. Afterwards, this indictment was nol-prossed, and a new indictment returned by the grand jury. The second indictment charged that one Neal made the assault upon Sivils, and that Lay was an accessory before the fact. It was contended that the two indictments were for separate offenses, and that the indictment upon which Lay was tried and convicted was barred by the statute of limitations. But the court held that the time during which the first indictment was pending was properly counted out, and that the last indictment was not barred. Chief Justice Fnglish, who delivered the opinion of the court, said that “the offense charged in the indictment was the same, but the agency of appellant in the crime was not charged in the second as in the first indictment.”
In the case at bar it is conceded that the appellant committed only one forgery. By that means he wrongfully procured a certain sum of money. It was for this-forgery he was prosecuted. By some inadvertence or oversight of the prosecuting attorney, the first indictment charged him with having forged a check endorsed “ W. H. Peters,” with the intent to cheat Punsten & Co. and W. H. Peters. This indictment was nol-prossed, and the second indictment set out the same check, and alleged that he forged the endorsement of W. H. Peters upon it with intent to cheat H. K. Wade.
Section 1991, Mansfield’s Digest, provides that “when any indictment or prosecution shall be quashed, set aside- or reversed, the time during which the same was pending shall not be computed as part of the time of the limitation prescribed for the offense.” Both of the indictments against appellant were based on the same transaction, and in each case the State was prosecuting him for the same forgery. The circuit court, in our opinion, correctly held that the time during which the first indictment was pending should not be computed as part of the time of the limitation prescribed for the offense. In charging the jury on this point the court said : “ The-jury are not to compute, as part of the three years, any time during which a former indictment for forgery was pending against him in the court.” We agree with counsel for appellant that only an indictment for the same forgery will prevent the running of the statute,, but as the evidence shows that the former indictment. was for the same forgery, and no indictment for a different forgery is referred to in the evidence, we think that this is what the court meant, and that the jury could not have been misled, or appellant prejudiced, by this-instruction.
The testimony of H. K. Wade and other witnesses was sufficient to support the verdict of the jury, and, as. we find no prejudicial error, the judgment of the circuit court is affirmed.
Justices Hughes and Wood, concur in this opinion. Bunn, C. J., and Battle, J,,, dissent. | [
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Hughes, J.
(after stating the facts.) There was no reversible error in the refusal of the court to require the jury to answer questions which the appellant proposed. This was in the sound discretion of the court.
Instruction numbered fourteen, asked by appellant and refused, was substantially covered by instructions one and two for appellee, given by the court, and there was no reversible error in refusing number fourteen.
The court improperly permitted the appellee to state in testifying that he estimated his loss at $10 per acre. This was opinion evidence, without a statement of facts bn which it was based sufficiently full to admit the opinion of the witness, which, with proper foundation, might have been admissible. “A witness is never permitted to estimate the amount of damages which a party has sustained by the doing or not doing of a particular act. That is the province of the jury, and not of the witness. He may state the facts showing the extent of the injury, and any other pertinent matter ; but the measuring of damages is not a fact, but matter of opinion ‘or speculation.” L. R. M. R. & Tex. Ry. v. Haynes, 47 Ark. 497. It is stated in Railway Company v. Lyman, 57 Ark. 512, that “a farmer suing for the destruction of his crop may give his opinion as to the value of the crop at the time of its destruction, and state, as the basis of his valuation, the usual yield of the land in crop seasons similar to that in question.”
The evidence that other fires had occurred on the line of the railroad than the one which destroyed the plaintiff’s meadow was improperly admitted, as it was not shown that these fires were caused by the engines of the railroad, or that they occurred from the operation of its trains. If this had been shown, it might have been admissible as a circumstance tending to show that the condition of the right of way of the railroad was such that a fire might have occurred from sparks escaping from its engines, and igniting the dry grass and inflamable material on its right of way. But the fact that other fires had occurred, without proof that they were caused by the railroad, was inadmissible. And it was inadmissible to show that other engines had set fire to materials on or near the right of way, as a circumstance to show that the engine which caused the fire on this occasion, or its appliances, were defective or in bad condition. For such purpose the proof would have to be confined to fires caused by the engine that is said to have caused the fire that burned the appellant’s meadow. In Tilley v. St. Louis and San Francisco R. Co., 49 Ark. 542, it is said: “A railway company is bound to keep its track and contiguous land free from inflammable matter. It is not however negligence per se for it to permit the dry grass and vegetation to remain on its right of way. This is only a circumstance from which the jury may infer negligence.” It is also said in this opinion, p. 540, that “a railway company, having the legal right to propel its cars by steam, is not liable for fires communicated by its engines, unless it has been negligent in their construction or management.” It is also held in this case that where the fire that causes the injury is shown to have escaped from the locomotive of the railway, there is, under the statute (sec. 5537, Mansfield’s Digest), a presumption of negligence upon the part of the railway, which it must, to exonerate itself, overcome by proving that it was using proper and safe locomotives and engines, and that its-servants were conducting them in a proper and safe way.
* Note.—-As to when the cost of restoration is the measure of damage to real property, see Hartshorn v. Chaddock, 17 L- R. A. 426. (Rep.)..
The instruction given at the instance of the appellee, which we number 3, was erroneous, as it failed to fix any measure of damages, but left the jury without any proper-direction how to measure the damages, and was calculated, to mislead them into the belief that the matter rested wholly with them to fix upon such a measure of damages-as they saw fit. Where a meadow is destroyed by fire, the measure of damages is the cost of re-seeding the meadow, and its rental value until it is restored.* Vermilya v. Chicago, etc. R. Co. 66 Iowa, 108; Pittsburgh, etc. R. Co. v. Hixon, 110 Ind. 225.
There was no evidence to sustain the first count of’ the complaint. There was no evidence to sustain a verdict for the amount found by the jury in this case, as-there was no proof of loss, save as to the cost of-re-seeding-the meadow. There was no proof of the rental value of the meadow, or of how long it would have required to-restore it, after the fire, to as good condition as it was-in before.
For the giving of the third instruction, and for want, of proof to sustain the verdict, the judgment is reversed,, and the cause is remanded for a new trial. | [
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Ed. F. McFaddin, Associate Justice.
From a conviction of second degree murder for the homicide of D. L. Russell, Lee Mode prosecutes the present appeal. The first appeal is Mode v. State, 231 Ark. 477, 330 S. W. 2d 88, wherein we recited the facts and held that the appellant had shown only one error in the trial, which error concerned an instruction. The cause was remanded and, on retrial, Mode was again convicted of second degree murder and now prosecutes the present appeal. The error in the instruction in the first trial did not occur in the second trial.
With only a few exceptions, to he subsequently-noted, the- assignments in the motion for new trial in the present appeal are .the same as the assignments in the motion for new trial in the first appeal, since the evidence offered and the rulings made were practically the same in both trials. The rule of “law of the case” precludes the appellant from now urging any point that was assigned as error on the first appeal. Rankin v. Schofield, 81 Ark. 440, 98 S. W. 674; St. L. I. M. & S. Ry. Co. v. Hill, 92 Ark. 484, 123 S. W. 760; St. L. I. M. & S. Ry. Co. v. DeLambert, 120 Ark. 61, 178 S. W. 926; and Ford Motor Co. v. Fish, 232 Ark. 270, 346 S. W. 2d 469. In Bowman v. State, 93 Ark. 168, 129 S. W. 80, this Court held that the rule of ‘ ‘ law of the case ’ ’ was applicable to criminal eases as well as to civil cases, and such is also the rule in other jurisdictions. In 24 C. J. S. 690, “Criminal Law” § 1840, under the topic, “Former Decision as Law of Case.” Cases from sixteen jurisdictions are cited to sustain this statement:
“Generally, the determination of the appellate court as to all questions within the record which are or might have been raised and decided will be the law of that ease in subsequent proceedings in the case.”
The text also says :
“Hence, a decision on a prior appeal in the same case as to the sufficiency of the evidence to authorize a conviction ... is the law of the case on a subsequent appeal, where practically the same evidence is involved.”
Our long established rule in felony appeals is that this Court will consider every assignment in the motion for new trial, regardless of whether the assignment be argued in the briefs. In Martin v. State, 206 Ark. 151, 174 S. W. 2d 242, we said:
‘ ‘ For reversal he has brought forward in his motion for a new trial fourteen assignments of error. While appellant, in his brief, argues but one alleged error— that the evidence is not sufficient to support the verdict — it becomes our duty, since appellant is charged with a felony, to consider all other alleged errors contained in the motion for a new trial, whether argued in appellant’s brief or not. Eveland v. State, use of Fossett, 189 Ark. 517, 74 S. W. 2d 221; Van Hook v. Helena, 170 Ark. 1083, 282 S.W. 673; Knighton v. State, 169 Ark. 293, 274 S. W. 10, and Babers v. State, 168 Ark. 1055, 272 S.W. 659.”
See also Boyd v. State, 215 Ark. 156, 219 S. W. 2d 623.
The application of the foregoing rules means that the appellant is now precluded from urging as error any assignment in the motion for new trial in the present appeal if that assignment was contained in the motion for new trial in the first appeal, and based on a record exception. This is a sound rule: it prevents an appellant from failing to argue a point on the first appeal in order to save it as a possible ground for reversal should he be convicted at a second trial, and thus obtain a successive number of trials, with each involving an identical ruling in a previous trial, which ruling was not argued on the previous appeal.
We have made a careful comparison of the assignments contained in the motion for new trial in the present appeal, as against those contained in the motion for new trial in the first appeal. Under the rule of “law of the case,” we eliminate all such, and we proceed now to discuss the assignments concerning matters which were not foreclosed by the first appeal.
I.
Testimony Of Jerry Russell At The Former Trial. Jerry Russell testified in the first trial, and a transcript of his testimony was read at the present trial after the State had offered evidence that the witness could not be found. Appellant claims the Court committed error in alloAving the transcript of testimony to be read to the jury. The efforts to locate the witness were shown in considerable detail: subpoenas were returned “non-est,” the State Police had been unsuccessful in a search for the witness, and the grandparents of the witness testified that they did not know where he was. In the light of such shoAAdng, we find no error committed by the Trial Court in allowing the State to read to the jury the testimony of the Avitness given at the former trial. Section 28-713 Ark. Stats, is the applicable statute, and says, inter alia, that such former testimony may be read to the jury “. . . when for any reason the former witness may not be available.” There was such a showing in this case. The objections to the content of the testimony of the witness, Jerry Russell, are foreclosed by the rule of “law of the case,” supra.
II.
Relationship Retween Mr. Mode And Mrs. Russell Subsequent To The Homicide. The Avitness, Clara Eggleston, introduced pictures of Mrs. Mildred Russell (wife of the deceased) taken in Sallisaw, Oklahoma, in 1959 and 1960. The Avitness also testified that in June, July, and August, 1959, Mrs. Russell was then going under the name of Mildred Mode and was living with Lee Mode in a trailer court in Sallisaw, Oklahoma. Two other witnesses also testified as to pictures of Mrs. Mildred Russell taken about the same time in Sallisaw, Oklahoma. In admitting such testimony of these Avitnesses, the Trial Court ruled:
“The court Avill repeat at this time that this testimony tending to show this association or togetherness of the two parties, that is, Mildred Russell and Lee Mode, if it does show, is admitted .for the purpose of shedding light, if it does shed light, upon any motive for the killing involved in the trial of this case and to the relationship of the parties, if it does shed such light, prior to the difficulty or trouble resulting in the death of D. L. Russell, and it is not to .be considered for any other purpose.”
We find no error in the Court’s ruling. In Hornsby v. State, 163 Ark. 396, 260 S. W. 41, Hornsby was accused of killing Mr. Fells because of Hornsby’s love and infatuation for Mrs. Fells. In that case the Trial Court allowed letters to be introduced that Hornsby had written Mrs. Fells after they were put in jail. This Court affirmed the ruling of the Trial Court, saying:
“The court did not err in permitting the State to introduce the letters of the appellant to Mrs. Fells after they were put in jail. These letters were identified as the letters of the appellant, and he does not dispute that they were his letters. They were filled with protestations of love for Mrs. Fells,- and tended to corroborate her testimony to the effect that appellant was in love with her at the time he killed Fells, and tended to prove a motive on the part of the appellant for killing Fells. Stokes v. State, 71 Ark. 112-117. ‘The State may show the existence of a motive for taking the life of the deceased in determining guilt or innocence of the accused.’ Avery v. State, 149 Ark. 642, and cases there cited. See also Sneed v. State, 159 Ark. 65-72.”
So, in the ease at bar, the evidence that Mrs. Russell and Mr. Mode were living together in a trailer court in Sallisaw, Oklahoma during the summer of 1959 would be admissible on the question of motive, if any, as to the cause of the homicide; and also the conduct of Mode and
So, in the case at bar, the evidence that Mrs. Russell and Mr. Mode were living together in a trailer court in Sallisaw, Oklahoma during the summer of 1959 would be admissible on the question of motive, if any, as to the cause of the homicide; and also the conduct of Mode and Mrs. Russell subsequent to the homicide could be shown as shedding light on the relationship toward each'other prior to the homicide.
Ill
Evidence of Good Character of Deceased. This is 'the point that has given us the- most serious concern. Assignment No. 43 in the motion for neAv trial reads:
‘ ‘ The court erred in admitting the testimony of Ted L. Welborn, over the objection and exceptions of the defendant, to the effect that the reputation of D. L. Bus-sell was good; that he Avas a peaceable, law-abiding citizen; to Avhich ruling of the court the defendant at the time objected and duly saved his exceptions.”
This assignment cannot be disposed of by the rule of “laAv of the case” because, in the first trial, there was no objection to testimony of the good character of the deceased. But in the trial from Avhence comes this appeal, the folloAAÚng occurred Avhen the Avitness Welborn Avas testifying for the State on rebuttal:
“Q. Did ybu knoAv D. L. Bussell prior to his death?
A. Yes, sir.
Q. Was he a resident of Faulkner County?
A. He was.
Q. Did you knoAv his reputation among those Avho kneAv him for being a peaceable laAv abiding citizen?
MB. HOLT: We object to that, as being improper.
BY THE COUBT: Your objection avíII be overruled.
MB. HOLT: Save our exceptions.
A. I do.
Q. Did you know him on October 13, 1958?
A. I did.
Q. Do you know what his reputation was on October 13, 1958 for being a peaceable, law-abiding citizen?
A. I think so, yes, sir.
Q. What was that reputation, good or bad?
A. Well — that puts me on the spot. There had been a disturbance that I had been called to.
Q. We are talking about his reputation, Mr. Welborn.
A. His reputation was good.
Q. Those times that you were called, you testified about those yesterday?
A. Yes, sir.
Q. Once at the instance of ‘Mutt’ Jones?
A. That is right.
Q. And the instance of Lee Mode?
A. Yes, sir.
Q. And once at the instance of Gerald Mode?
A. That is right.”
Appellant insists that the general reputation of D. L. Bussell for being a peaceable and law-abiding citizen had never been attacked by evidence offered by the defense, and for that reason it was fatal error for the Court to allow the State on rebuttal to show Bussell’s reputation as being a peaceable and law-abiding citizen. We have a number of cases which deal with various phases of this matter, but in each there was a state of facts different from those presented in the case at bar. Some such cases are: Palmore v. State, 29 Ark. 248; Bloomer v. State, 75 Ark. 297, 87 S. W. 438; Bryant v. State, 95 Ark. 239, 129 S. W. 295; Shuffield v. State, 120 Ark. 458, 179 S. W. 650; Kelley v. State, 146 Ark. 509, 226 S. W. 137; Carr v. State, 147 Ark. 524, 227 S. W. 776; Fisher v. State, 149 Ark. 48, 231 S. W. 181; Jett v. State, 151 Ark. 439, 236 S. W. 621; Bogue v. State, 152 Ark. 378, 238 S. W. 64; Bridges v. State, 169 Ark. 335, 275 S. W. 671: Day v. State, 185 Ark. 710, 49 S. W. 2d 380; and Burton v. State, 204 Ark. 548, 163 S. W. 2d 160.
From these eases, we recognize the pertinent rules in Arkansas in a homicide case (as is the one at bar) to be: (a) that in the case in chief the State may not show the general reputation of the deceased as a peaceable and law-abiding citizen; (b) that unless the defendant undertakes to show that the deceased was not a peaceable and law-abiding citizen, then the State may not, on rebuttal, offer evidence of such good reputation; and (c) that bad reputation may not be shown by testimony as to specific acts of violence or turbulence. These are the general rules, but in the case at bar the defendant, under his claim of self-defense, showed — as was his right — a vast number of specific acts of bad conduct on the part of the deceased. This testimony related to threats, shooting, carrying a gun, fighting, etc., concerning all of which Mode was aware personally or was so advised by others. We list the following specific instances, wherein the defense elicited testimony about the conduct of the deceased;
(a) Witness Dave Ward testified that a year before the fatal shooting, Russell told Ward that he (Russell) was carrying a gun for Mode and that he was going to kill Mode; that Ward conveyed that threat to Mode; that Ward got Russell to put up his gun in July, and Russell said he could kill Mode without a gun; that hard feelings existed between Russell and Mode; that Ward saw a gun in the glove compartment of Russell’s car two or three times; that Russell “jumped on” John McCracken and got into a heated argument with Ward and Elbert Ryan, Shop Superintendent, in Ward’s office in July.
(b) Roy Barton testified that Russell came to his garage one day looking for Mode; that Russell was “mad” and said that if he. found Mode he would kill him.
(c) George W. Robinson testified .that Russell asked him if he had a gun (which he didn’t); that Russell cursed and said he was getting tired of.Mode coming out to his house; that the next time or two Russell 'went to town he “picked up a gun” and said he was going up there and get some shells and kill Mr. Mode and J. D. (Mode) both, if necessary; that Robinson told Mr. Mode about the threats and told Mode “to watch him — to watch out for him.”
(d) Virgil McCoy testified that Russell said he didn’t want Mode out on the farm —• that he was going to shoot him if he came back out there; and McCoy gave the information to Mode.
(e) Charles Hartsell testified that Russell came to Mode’s house, cursed Mode, and told him to come out, and then stated that he would kill him if he did come out.
(f) Bruce Henderson testified that Russell tried to borrow a gun from him; that, later, Russell had a gun that was jammed and asked Henderson to show him how it would shoot; that he said he took the gun from Mode and wanted it with which to kill Mode.
(g) Leo Looper testified that Russell said he and Mode .were having trouble, and Russell cursed and said if he could find Mode he would kill him.
(h) Elmer Joe Swaffer testified that Russell attacked Mr. Mode — made a lunge at Mode and grabbed him around the neck (at the fatal encounter).
(i) Gerald Mode testified that Russell came to Mode’s house and cursed him and threatened to kill him; that Russell told Gerald downtown that he would get his father, Lee Mode, sooner or later, and that Russell came to Mode’s house one night and shot two or three times over the house.
We hold that when the defense offered all of the foregoing evidence, the defense thereby opened the door for the State to show on rebuttal the general reputation of the deceased Russell sis a peaceable and law-abiding citizen. Such evidence certainly tended to rebut the defendant’s evidence as to acts of bad conduct, turbulence and violence on the part of the deceased. Even though general reputation cannot be shown by acts of specific misconduct, yet when, under the claim of self-defense, there is offered — as here — such an abundance of testimony of specific acts of bad conduct as to present a picture of the deceased being a violent and turbulent man, then the defense has, in effect, attacked the good reputation of the deceased and has opened the door for the State to show on rebuttal the general reputation of the deceased as a paeceable and law-abiding citizen. In Carr v. State, 147 Ark. 524, 227 S. W. 776, the appellant attacked the reputation of the deceased for peace and quietude; the State introduced a witness to show that the reputation of the deceased, was good. Appellant attempted on cross-examination of the witness to elicit his knowledge of acts of violence on the part of the deceased indicating otherwise. The defense offered to show testimony of nine specific acts of violence, but this evidence was rejected. In holding that the Court was in error in refusing the proffered testimony, we said:
“We think the form of the question immaterial in the instant case, because the very nature of the specific acts of violence offered to be established by the witness were of such a notorious and public nature within themselves as would tend to establish general reputation. Especially is that true in view of the great number of violent acts offered to be proved, covering so short a period of time.”
It is true that in two subsequent cases there were attempts by this Court to limit or distinguish the language in the Carr case. These cases are Fisher v. State, 149 Ark. 48, 231 S. W. 181, and Bridges v. State, 169 Ark. 335, 275 S. W. 671. In each of these cases the factual situations and the defenses were different from those in the Carr case and also in the case at bar. In Bridges v. State, supra, there was no plea of self-defense and no testimony of threats offered by the deceased against the appellant, and no evidence of specific acts of violence by the deceased. So the Bridges case is not in point. In Fisher v. State, supra, the defense offered evidence about the deceased seeking to borrow a pistol, and the State contended that such testimony allowed the State, on rebuttal, to show the good reputation of the deceased. But this Court said:
“We do not think what the defendant proved concerning the deceased was equivalent to proving his geveral character as a violent, quarrelsome and fighting man. It is clear that the proof made in the Carr case by the defendant as to the character of the deceased was of an entirely different nature from, the proof made in the case at bar . . . The character of the deceased as being peaceful and quiet is presumed to be good until the contrary appears, and, the testimony of the defendant not being sufficient to show that the general reputation of the deceased in that respect was that of a quarrelsome and fighting man, the State was not entitled to introduce original evidence upon that subject.”
The case of Bryant v. State, 95 Ark. 239, 129 S. W. 295, shows how slight need be the evidence offered by the defense in order for the State on rebuttal to show the general reputation of the deceased. In that case, Mr. Justice Battle, speaking for the Court, said:
“On cross examination of Mrs. Minta Potter, the widow of the man killed, the witness testified that the deceased ‘was quick to get mad and fight, and he was a brave man, and would fight at the drop of a hat.’ The State by many witnesses proved in rebuttal that the general reputation of the deceased for being a quiet peaceable citizen was good. The appellant contends that the court erred in admitting it. It was only admissible for the purpose of sustaining the reputation of the de ceased after it had been attacked. In this case the evidence adduced by the defendant on cross-examination tended to prove that the deceased was aggressive, quick to take offense, and resent it with force unnecessarily. The evidence adduced by the State was admissible to remove such impression. Wharton on Homicide (3 ed.), — 269, and cases cited.”
Our holding, that the Defense opened the door to allow the questioned testimony on rebuttal, is in accord with the holdings in other jurisdictions and also in accord with the text writers.
The case of State v. Rutledge, 243 Iowa 179, 47 N. W. 2d 251, goes thoroughly into the matter. Testimony was admitted in rebuttal that deceased was a quiet and peaceable citizen, and the defense asserted that no attack had been made on deceased’s character or reputation and that the admission of the evidence constituted error. The testimony complained of was to the effect that deceased had made various telephone calls to the accused in which he abused, cursed, and threatened to come to the hospital and beat him up; that he brandished a knife while talking to defendant’s detective and told him to warn defendant that he was not a doctor but that he could operate; and that deceased was frequently intoxicated. In holding that the testimony concerning deceased’s good character as a quiet and peaceable citizen was admissible in rebuttal, the Iowa Sureme Court said:
“40 C. J. S. Homicide, § 272e, pp. 1225, 1226, states although such evidence cannot be introduced by the prosecution in the first instance, where the accused, in a homicide case in which self defense has been set up, has introduced evidence tending to show the turbulent, violent and quarrelsome character of the deceased, the prosecution may in rebuttal introduce reputation or character evidence to the contrary. 26 Am. Jur. 397, Homicide, section 349, states: ‘No general rule can be laid down for the determination of what will be held to constitute an attack by the defendant upon the character or reputation of the deceased, so as to open the door for rebuttal evidence; each-.case must be decided according to the circumstances thereof.’ . . . Most authorities hold the attack on the character of the deceased need not be direct as to his character or reputation to render admissible in rebuttal evidence of his good character as to being a quiet and peaceable citizen. Whether the attack is made by evidence of general reputation or otherwise the state may meet it by evidence of such good character. We hold the evidence introduced by the defense in this case constituted an attack upon Hattman’s character within the rule above mentioned.”
Another case is Sweazy v. State, 210 Ind. 674, 5 N. E. 2d 511. The question presented was whether testimony as to the general reputation of the deceased for peace and quietude could be introduced. The Indiana Supreme Court said:
“We think the evidence competent and material. Appellant testified in his own behalf and claimed that the deceased made an attack upon him. That he was standing in the doorway with his gun standing beside him, and as soon as the deceased observed his presence he made the remark, ‘There is the so of b’ and raised his gun and shot appellant. This is a direct attack upon the character of the deceased and put his reputation for peace and quietude in issue. While appellant’s defense was not self defense, yet he charged the deceased as being the aggressor and making the assault upon him.” The Indiana Court further quoted from Fields v. State (1892), 134 Ind. 46, 32 N. E. 780, as follows:
“ ‘The defendant testified that the deceased assaulted him, and that he apprehended great injury to life or limb from the assault. On rebuttal the court permitted the state to prove that the deceased was a peaceable, quiet man. This was not erroneous.’ ”
The question was before the New Mexico Supreme Court in State v. Brock, 56 N. M. 338, 244 P. 2d 131, wherein the specific acts testified to were as follows: Deceased came to defendant’s house and asked to borrow money to help pay for a rifle, and was refused. Thereupon, deceased made the statement that if the defendant didn’t get out of there he would throw him out or blow him out. The same threat was repeated on two subsequent occasions. Later, when the two were attempting to talk things over, deceased pulled a gtm on defendant and defendant shot first and killed deceased. In holding that testimony concerning deceased’s reputation for being a quiet and peaceable man was admissible on rebuttal, the New Mexico Court cited, inter alia, State v. Todd, 28 N. M. 518, 214 P. 899; State v. Rutledge 243 Iowa, 179, 47 N. W. 2d 251; and DeWoody v. State, 21 Ariz. 613, 193 P. 299; and quoted from the DeWoody opinion, as follows:
“ ‘It is to be observed, however, that when the defense in a prosecution for homicide puts the character of the deceased as a quarrelsome, turbulent or violent and dangerous man in issue, the state may support it by proofs that the deceased was a peaceable, quiet, and law-abiding man. Wharton on Homicide (3d Ed.) par. 269. Furthermore, the attack on the character of the deceased need not be direct as to his general reputation to render admissible evidence of his good character on the part of the state. It is immaterial in what manner the attack is made, whether by evidence of general reputation or by any other species of evidence. If the issue is raised by the defense at all, the state may meet it by evidence of general reputation as to good character. Wharton on Homicide, 3d Ed., par. 270; People v. Gallagher, 174 N. Y. 505, 66 N. E. 1113, affirming 75 App. Div. 39, 78 N. Y. S. 5. No general rule can be laid down for the determination of what will be held to constitute an attack by the defendant on the character of the deceased so as to “open the door” for rebuttal on behalf of the state, but each case must be decided according to its own circumstances or facts. 13 R. C. L., par. 219, p. 917; Kelly v. People, supra. (229 Ill. 81. 82 N. E. 198. 12 L. R. A. N. S., 1169.)”’
CONCLUSION
We have carefully considered all the assignments and find no error.
Affirmed.
Johnson, J., dissents.
This is particularly demonstrated in the case at bar wherein the opinion on the first appeal concludes with the language: “Appellant argues several other points, all of which we have examined, but we find no error other than the giving of Instruction No. 9.”
This point was not argued in the appellant’s brief but was urged in the oral argument. Because of our rule previously mentioned — that in felony cases this Court examines all assignments in the motion for new trial — this point is properly before us because it was an assignment in the motion for new trial. The rule in felony cases is different from the rule in civil cases, in which latter we consider onlv the noints listed in the briefs.
There is an enlightening discussion in McCormick on Evidence, pages 339 and 340. | [
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Neill Bohlinger, Associate Justice.
The appellant is an agency created as a body corporate and politic under the Housing Authority Act of the State Legislature, same being Act 298 of 1937. The appellee is owner of two lots in West Rock Addition, same being Lot 8 of Block 1 and Lot 10 of Block 1.
In carrying out its work in slum clearance and urban renewal, the appellant filed its complaint in Pulaski Circuit Court seeking to condemn the above named lots. The appellee answered and raised an equitable defense and the case was transferred to Pulaski Chancery Court where it was duly tried and from a decree and judgment awarding the appellee the sum of $11,000.00 as just compensation for the taking of her property this appeal is prosecuted and presented here.
It appears from the record that appellee is the owner of an area on the north of Cantrell Eoad that is approximately the width of the road plus 100 feet from the lots involved in this case. It is the contention of the appellee, however, that these two lots are a part of her scheme for the development of the balance of her property in that she contemplates the erection of commercial establishments in addition to some buildings now in the area and that the two lots involved in this case will be necessary for a parking area for the employees who she contemplates will find work in her completed project. It would appear at the outset that the principle of substitution or replacement might be considered in this case but if either principle would be adopted it would fall upon the property owner to show the value of the property which is to be acquired to replace the condemned property. This the appellee has failed to do.
It appears that there is a piece of property directly west of appellee’s main holdings that is referred to as the ‘ ‘ Cheek Property ’ ’ which would no doubt be suitable for a parking area but is of greater extent than the condemned property and the only testimony as to value of the Cheek Property was given by appellee’s witness who thought the Cheek Property was worth $50,000.00. The other property that is suggested as a substitute or replacement is referred to as the “Collins Property” which adjoins appellee’s Lot 8 and which appellee’s witness, without fixing a value, thought was worth less than Lot 8 or Lot 10.
Appellee testified that she had tried to get property to substitute for her lots 8 and 10, and that she had inquired from the owner the price of the Collins Property and that the owner had asked $10,000.00 for it.
This is not the measure of market value and the statement in State v. Lincoln Memory Gardens, Inc., Ind., 177 N. E. 2d 655, succinctly states the rule:
“A mere offer to buy or sell property is not a measure of the market value of a similar property. It is incompetent to prove the market value of property because the asking price is only the opinion of one who is not bound by his statement, and is too unreliable to be accepted as a correct test of value. A witness in an eminent domain proceeding may state the cost of a particular property at a given place in order to establish the value of a similar property. But evidence of the price for which someone might be willing to sell such similar property or how much he may have refused to take for it would not tend to prove the market value of the property taken.”
Therefore, there being no competent testimony as to the value of any property that might be used for replacement or substitution, we turn to the value of the two lots based upon every fact concerning the property which would naturally be disposed to place it in an advantageous light if a negotiated sale to a private individual was in prospect. The purpose of the lots, as shown by appellee’s testimony, is for a parking area but appellee states that she had not parked any automobiles on either of these lots during the five, or six year period she had owned them because she had not had the buildings to warrant it but stated, “however, we never know what ten years will bring.” Appellee’s only witness on this point was Mr. Hood who stated that he was familiar with values in that neighborhood and that he speculated in real estate and he would be willing to give $10,000.00 or $12,000.00 for these two lots and would subsequently expect to sell them for $15,000.00.
In Arkansas State Highway Comm. v. Watkins, 229 Ark. 27, 313 S. W. 2d 86, this court said:
“In United States v. 620 Acres of Land, Etc., 101 Fed. Supp. 686, which concerned the condemnation of land in Marion County, Arkansas, the Court, at page-690, approved this statement: ‘ To warrant the admission of testimony as to value for purposes other than that, for which it is actually used, however, regard must be-had for existing conditions and wants of the community,, or such as may reasonably be expected in the immediate future. The uses considered in fixing value must be so reasonably probable as to have an effect upon the present market value of the land and a speculative value cannot be considered.’ In the case of Carolina Power and Light Company v. Clark, 243 N. C. 577, 91 S. E. 2d 569, the court, in dealing with fixing the value of property based on its best adaptable usage, said that consideration must be given to existing business ‘or wants of the community, or such as may be reasonably expected in the immediate future to affect present market value.’ It was then said by the court: ‘purely imaginative or speculative value should not be considered, ’ citing a long line of cases. This court, in L.R. Junction Ry. v. Woodruff, 49 Ark. 381, 5 S. W. 792, made this pertinent observation : ‘ One who anticipates an increase in the value of his property may feel it a hardship to surrender it without receiving more than its present market value, but it would be a hopeless task to either measure or satisfy the anticipations of a sanguine land owner.’ ”
On the other hand, the witnesses for the appellant who, like Mr. Hood, testified as experts, fixed a value of $2,000.00 on one lot and from $4,000.00 to $4,250.00 on the other lot, basing their judgment on such factors as the highest and best use of the property, its general contour, market for the property and comparable sales.
In the matter of comparable sales, the appellant offered evidence as to two sales which were excluded by the chancellor as being over three years prior to the filing of this action. There is no hard and fast rule that sets a time beyond which comparable sales cannot be shown. The remoteness in time goes to the weight of the evidence and not to its admissibility.
Trying this case de novo here and striving to arrive at a judgment from experience as against a judgment from speculation, giving the testimony of all the witnesses the strongest probative effect, we fail to find that the testimony taken as a whole justifies the award of $11,000.00. We conclude, however, that the testimony in this case justifies an award of $8,000.00.
The judgment of the chancery court is, therefore, modified and we enter judgment here in favor of the appellees and against the appellant in the sum of $8,000.00. Appellant recovers its costs. | [
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Sam Robinson, Associate Justice.
This is an appeal by W. S. Rooker and others from an order of the Pulaski Circuit Court entered on February 2, 1961, annexing 17.8 square miles to the City of Little Bock.
The annexation proceeding was instituted pursuant to Ark. Stats. § 19-101. An ordinance was passed by the City whereby the question of annexation was submitted to the qualified legal voters at the general election of 1959. The measure called for an addition to the City of 22.2 square miles, specifically excluding three small plots of land completely surrounded, thus creating enclaves of unincorporated land within that sought to be added to the municipality. The reason for the exclusion of these plots was to permit the location thereon of branch banks without offending Ark. Stats. § 67-319. A majority of the qualified voters of the City approved the measure, and the City on November 12,1959, filed with the Pulaski County Court its petition of annexation.
A public hearing on the matter was set by the county court for December 15, 1959, and on that day a number of persons, including the appellants herein, appeared and filed written objections to the annexation. Subsequently the City, with the permission of the court, filed an amendment to their petition which created two additional exclusions or enclaves, added a small amount of territory to the extreme northwest corner of the land sought to be annexed by the original petition, and reduced the territory to be added to the City from 22.2 to 17.8 square miles. A hearing on the amended petition was had on February 12, 1960, and on that date the county court entered an order approving the petition as amended.
The appellants duly perfected an appeal of the county court’s order to the Circuit Court of Pulaski County, Second Division. While the matter was pending in the circuit court the City made amendments two and three to their original petition. The second amendment was identical to the first made in the county court, except that the small acreage in the northwest corner added by the first amendment was deleted. The third amendment was made for the purpose of clarifying a possible ambiguity in the description of the land contained in the original petition. The third amendment, however, neither added to nor reduced the territory set forth by the original petition as modified by amendment two. On February 2, 1961, the circuit court entered an order approving the petition of annexation as amended.
First, the appellants claim that the ordinance passed by the City submitting the question of annexation to the voters is void as violating Ark. Stats. § 19-2402, prohibiting an ordinance from containing more than one subject, which shall be clearly expressed in its title. The reasoning employed by the appellants is that the ordinance had a dual purpose, the first being to annex land to the City and the second to exclude certain land from the annexation in order to favor local banks which might maintain branch offices on the excluded land. It is true that the description of the land placed on the ballot and proposed to be annexed by the City contained three small enclaves, completely surrounded by land of the proposed annexation. However, the record reflects that the parties stipulated in the circuit court that the ordinance “was legally submitted to a vote of the qualified electors of the City of Little Bock . . .” The appellants cannot in one breath stipulate that the ordinance is valid and in the next assert that it is invalid. They are bound by their stipulation that the ordinance is valid and cannot now assert its invalidity.
Appellants contend that the ordinance passed by the City which proposed the annexation is void as conflicting with Amendment 14 to the Arkansas Constitution, which forbids the passage by the General Assembly of local legislation. They reason that since the power of a municipal corporation to extend its borders is derived from the legislature, the City also has the restrictions of Amendment 14 placed upon it; that the City by carving out certain enclaves in the territory annexed has conferred a special favor upon the local banks, and therefore the ordinance is forbidden by Amendment 14.
This argument is unsound for the reason that Amendment 14 is a restriction on the General Assembly and not on the municipal corporations of the state. Of course, it is not inconceivable that a city within the state might pass an ordinance which would so unreasonably and arbitrarily affect certain persons, their rights or their property, as to be unconstitutional. If so, the ordinance might be attacked in the courts on constitutional grounds, but certainly not on the basis of Amendment 14.
The appellants assert that the circuit court was without jurisdiction to hear this case because at the time the City passed its ordinance of annexation which is the subject of the present litigation, there was an appeal pending in the Pulaski Circuit Court from an order of the Pulaski County Court denying annexation of identically the same territory. We need not consider the merit of the assertion because appellants introduced no evidence in support thereof, and neither this Court nor the circuit courts will take judicial notice of such a matter. Adams v. Billingsley, 107 Ark. 38, 153 S. W. 1105; Parker v. Sims, 185 Ark. 1111, 51 S. W. 2d 517.
Appellants’ next contention is that appellee’s first amendment to its original petition made in the county court added territory to that described in the original petition, and for that reason the circuit court’s order annexing territory described in the third amended petition should be reversed.
It is true that the amendment allowed in the county court was void as being in excess of the jurisdiction of the court. Ark. Stats. § 19-102 provides that “. . . no amendment shall be permitted [by the county court], whereby territory not before embraced [by the original petition] shall be permitted. . . .” As was said in Grayson v. Arrington, 225 Ark. 922, 286 S. W. 2d 501: “Where the court ... is exercising special statutory powers, the measure of its authority is the statute itself; and a judgment or order in excess of the power thereby conferred is null and void.”
It must be borne in mind, however, that the appellants herein took the present case from the county court to the circuit court by direct appeal. Article 7, § 33 of the Arkansas Constitution provides “appeals from all judgments of the county courts . . . may be taken to the circuit court. . . .” Ark. Stats. § 27-2006 states that “the circuit court shall proceed to try all such appeals [from the county court] de novo. . . .” Upon trial de novo in the circuit court the court has jurisdiction of the subject matter for final judgment, to the same extent as though original jurisdiction had been in the circuit court. Ark. Stats. § 27-2007; Batesville v. Ball, 100 Ark. 496, 140 S. W. 712. Thus it is apparent that the circuit court was clearly within the bounds of its authority when it disregarded the void amendment allowed by the couhty court and proceeded to hear this case on the original petition, as if it had been originally brought in the circuit court, and as if no amendment had been made at all in the county court.
On the date set by the circuit court for a hearing on the matter, the City filed amendment two to its original petition, which was identical to the first amendment made in the county court, with the exception of the small acreage in the northwest corner added by the first amendment, which was deleted. This brought the land sought to be annexed within the territorial limits of the original petition. Amendment three neither added to nor subtracted from the territory described in the original petition as modified by amendment two. The order of the circuit court in approving the original petition as modified by amendments two and three was proper.
The appellants allege that amendment one made in the county court was made by the appellee at the request of the county judge, a sort of condition precedent, so to speak, for the approval by the court to the annexation, but appellants offer no proof as to this allegation, and in the absence of evidence to the contrary we must assume, as we do, that the City acted at all times during this litigation in absolute good faith, and that through its agents it has honestly sought to carry out its public trust.
Appellants argue that the description in the third amended petition and the map filed therewith are inac curate and do not sufficiently identify the limits of the territory sought to be annexed. John P. Powers, a registered professional civil engineer, testified that the map is as accurate as it is humanly possible to show it, and that he could take the map and the description contained in the third amended petition and locate the proposed boundaries of the City on the ground. No witnesses were offered by the appellants to testify as to the alleged inaccuracy of the description and map. We think the circuit judge correctly found the map and the description to be sufficiently accurate. Burton v. City of Fort Smith, 214 Ark. 516, 216 S. W. 2d 884; Marsh v. City of El Dorado, 217 Ark. 838, 233 S. W. 2d 536.
Appellants urge that the City is not financially able to provide ordinary municipal services to the area in question, but offered no concrete evidence to support their conclusion. On the other hand, the City put in evidence the testimony of various city officials who testified as to the services which their departments could and would furnish to the area. The circuit court, apparently relying heavily upon the testimony of the city manager, who testified at length on the financial status of the City, specifically found that “the proof in this record does not arise to the point of persuasiveness to find that the City could not furnish the ordinary municipal services to the territory sought to be annexed, if the petition for annexation should be granted.”
In City of Little Rock v. Findley, 224 Ark. 305, 272 S. W. 2d 823, it was said: “The law governing appellate review in cases of this kind has been settled for many years. It is our duty to affirm the circuit court’s judgment if it is supported by substantial evidence.” We think the rule set forth in the Findley case is applicable to the case at bar; there is substantial evidence to support the finding of the trial court regarding the financial ability of the City to furnish services to the territory proposed to be annexed.
The last point raised by the appellants is the assertion that by reason of the enclaves or “islands” of unin corporated land lying completely within that which is sought to be incorporated, the contiguity of the desired territory is destroyed, and therefore it cannot be annexed.
The exact question was before this Court in the recent case of Mann v. City of Hot Springs, 234 Ark. 9, 350 S. W. 2d 317, wherein two small plots of ground on which two branch banks were located were not included in the annexation. In footnote 3 of the Mann case it was stated that, “the exclusion of the two plots does not destroy the contiguity of the territory to be annexed.” The statement is equally applicable in the present case, and the enclaves in the territory do not destroy its contiguity.
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Ed. F. McFaddin, Associate Justice.
This is a Workmen’s Compensation case and necessitates a study of paragraphs (b) and (e) of § 81-1318 Ark. Stats.
On March 4, 1955, Appellee Jordan, while an employee of Dickmann-Farnsworth, sustained accidental injuries in the course of his employment at Crossett, Arkansas. Aetna Casualty & Surety Company, as the insurance carrier of Dickmann-Farnsworth, upon learn ing of Jordan’s injuries immediately commenced payment of compensation to him for temporary total disability. The last of these payments was on August 16, 1955. Jordan lived in the State of Louisiana and instituted action in the District Court of that State for continuation of the Workmen’s Compensation payments, claiming that he was totally and permanently disabled. In that action, Jordan insisted that the Louisiana Workmen’s Compensation Law was applicable, and he proceeded by a suit in the District Court as provided by § 23:1311 Louisiana Revised Statutes of 1950.
Aetna Casualty & Surety Company, as Dickmann-Farnsworth’s insurance carrier, resisted the jurisdiction of the Louisiana Court, claiming that the Arkansas Workmen’s Compensation Commission had exclusive jurisdiction. On May 2, 1957, the Louisiana District Court held that the Arkansas Workmen’s Compensation Commission had exclusive jurisdiction and dismissed Jordan’s action there pending; and on July 6, 1957, Jordan filed his claim with the Arkansas Workmen’s Compensation Commission, claiming total permanent disability. The insurance carrier and the employer then insisted that Jordan’s claim was barred by limitations under § 81-1318(b) Ark. Stats., the argument being that Jordan was injured on March 4, 1955; received his last payment for compensation on August 16, 1955; the claim was not filed with the Arkansas Workmen’s Compensation Commission until July 6, 1957; and the cited statute says that in a claim for additional compensation, the claim must be filed “within one (1) year from the date of the last payment of compensation, or two (2) years from the date of the accident, whichever is greater.”
The Referee and the Full Commission on appeal held that Jordan’s claim was barred by limitations; the Circuit Court reversed the Commission and remanded the claim to the Commission for development on the question of disability; and the insurance carrier and the employer prosecute this appeal. The determination of continued disability vel non has not been made. We have repeatedly held that the filing of a claim within the prescribed time is mandatory. The filing of the claim with the Commission on July 6, 1957, was more than one year from the date of the last payment and more than two years from the date of the accident. So the claim is barred pursuant to the provisions of § 81-1318 (b) Ark. Stats., unless the claimant can successfully rely on § 81-1318(e), which reads:
“Whenever recovery in an action at law to recover damages for injury to or death of an employee is denied to any person on the ground that the employee and his employer were subject to the provisions of this act (§§ 81-1301 — 81-1349), the limitations prescribed in subsections (a) and (b) shall begin to run from the date of the termination of such action. In such event the employer or carrier shall be allowed a credit for actual cost of defending the action at law, not to exceed two hundred fifty dollars ($250), which shall be deducted from any compensation paid.”
We look now at the facts in the record which cause the claimant to rely on the above section. At all times herein involved the claimant lived in the State of Louisiana. After the insurance carrier ceased making compensation payments on August 16, 1955, the claimant filed suit in Louisiana against the Aetna Casualty & Surety Company, as the insurance carrier of the employer. This was the correct procedure in Louisiana for the adjudication of compensation claims, i. e., rather than seeking an award from a commission, the claim is filed in the proper district court (§ 23:1311 Louisiana Revised Statutes of 1950). Originally, the claimant sued in the Eighth Judicial District Court in Louisiana, but took a nonsuit and refiled the action in the Nineteenth Judicial District Court in and for the Parish of East Baton Rouge, Louisiana. The insurance carrier excepted to the jurisdiction of the Louisiana Court and claimed that the claimant was employed in Arkansas; that the injury occurred in Arkansas; and that the Arkansas Workmen’s Compensation Commission had exclusive jurisdiction. Evidence was heard on whether the claim would he governed by the Louisiana Compensation Law or the Arkansas Compensation Law. The Nineteenth Judicial District Court sustained the insurance carrier’s exception to jurisdiction and dismissed the action on May 2, 1957. Thereupon, the claim was filed with the Arkansas Workmen’s Compensation Commission on July 6, 1957.
In view of the Arkansas Statutes and the facts as recited, we hold that § 81-1318(e) is applicable, and that the claim is not barred by limitation. Learned counsel for the insurance carrier says that the action in the Louisiana District Court was not “an action for damages” and is therefore not within the purview of the said paragraph (e), but this argument is not impressive. The purpose of filing a claim is to set in motion the approved machinery for adjudication. The action in the Louisiana District Court certainly put the insurance carrier of the employer on notice. The purpose of subsection (e) is to toll the statute of limitations while an action is pending. The action in the Louisiana Court was to recover money for injuries sustained by the claimant. It was in a court of law. What more is a damage suit than an action in a law court to recover money for injuries sustained?
It would be putting form above substance to hold that subsection (e) of § 81-1318 Ark. Stats, was not applicable in this case. In Reynolds v. Brumley, supra, we said:
‘ ‘ In this situation we are committed to the rule that if a substantial doubt exists as to which is the applicable statute of limitations, the longer rather than the shorter period is to be preferred and adopted. Jefferson v. Nero, 225 Ark. 302, 280 S. W. 2d 884. This rule is in harmony with our settled policy of giving a broad and liberal interpretation to the construction of the provisions of the Compensation Act to effectuate its purposes, and the further policy of resolving doubtful eases in favor of the claimant. E. H. Noel Coal Company v. Grile, 215 Ark. 430, 221 S. W. 2d 49; Triebsch v. Athletic Mining and Smelting Co., 218 Ark. 379, 237 S. W. 2d 26. ”
In view of the foregoing, we affirm the judgment of the Circuit Court which remanded the claim to the Commission with directions to overrule the plea of limitations and for determination of compensation, if any, and for whatever sum, if any, the carrier should be allowed as a credit for the cost of defending the Louisiana action.
Affirmed.
Ward, J., dissents.
Some of our cases involving § 81-1318 (b) Ark. Stats., or the earlier and somewhat similar statute, are: Sanderson & Porter v. Crow, 214 Ark. 416, 216 S. W. 2d 796; Wilson v. Border Queen Kitchen Cabinet Co., 221 Ark. 580, 254 S. W. 2d 682; Little v. Smith, 223 Ark. 601, 267 S. W. 2d 511; and Reynolds Metal Co. v. Brumley, 226 Ark. 388, 290 S. W. 2d 211.
The Judge of the Louisiana Court wrote an opinion in the case which recited in part:
“Suit was first instituted in the Eighth Judicial District Court of Louisiana, and upon an exception to the jurisdiction of that Court being filed, testimony was taken thereon. Prior to judgment on the exception in that suit Plaintiff voluntarily nonsuited same and instituted the suit in this District. By stipulation of counsel, the evidence previously taken was offered on the trial of the exception before this Court and the matter submitted thereon.
“From the testimony of Mr. Jack C. Copeman, General Superintendent of Dickmann-Farnsworth Construction Company, and of a Mr. Charles R. Anding, Financial Secretary-Treasurer and Business Agent of the Iron Workers Local Union Number 710 of Monroe, Louisiana, it is my opinion that the Plaintiff herein became employed by Dickmann-Farnsworth Company only after he had arrived in Crossett, Arkansas, the place where the construction job was under way, and following the determination of the management of the Construction Company that Plaintiff was acceptable.
“Inasmuch as the evidence shows that the Construction Company had an arrangement with the Union by which prospective employees were referred to the Construction Company by the Union and were guaranteed the equivalent of two (2) hours pay for reporting to the place of employment, counsel for Plaintiff contend that this was the actual employment of the Plaintiff by the Construction Company. Both the representative of the Union and the Superintendent of the Construction Company deny that, in fact, the Plaintiff was so employed — Mr. Anding disclaiming any authority to employ Plaintiff on behalf of the Construction Company and likewise Mr. Copeman testifying that the Agent had no such authority from the Construction Company. At most, the arrangement in my opinion was for a paid interview but under no circumstances could it be classed as an employment contract.
“The cases of Cobb v. International Paper Company, 76 So. 2d 460; Reed v. Zurich General Accident and Liability Insurance Company, 83 So. 2d 660, and Rushing v. Travelers Insurance Company, 85 So. 2d 298, are, in my opinion, applicable to the issue here involved and therefore in my opinion the contract of employment between the Construction Company and Plaintiff was made and entered into in the State of Arkansas where Plaintiff allegedly sustained the injuries about which this suit was brought, and, in consequence, this Court has no jurisdiction.”
In addition to the cases cited in this opinion, the following authorities have been cited in the briefs or discovered in the study made by the Court: Schneider’s Workmen’s Compensation Text, Vol. XII § 2369, “Conflict of Laws in Limitation Statutes,” and § 2404 “Louisiana Law on Limitations”; Giacalone v. Industrial Accident Commission (Cal.), 262 P. 2d 79; Rushing v. Travelers Ins. Co. (La. Ct. App.) 85 So. 2d 298; 100 C.J.S. §§ 355, 362; City of Brunswick v. King (Ga. App.), 14 S. E. 2d 760; Westrich v. Industrial Comm. of Ohio, 197 N.E. 823; Lineberry v. Town of Mebane (N. C.), 12 S. E. 2d 252; Hayes v. Barras, 6 So. 2d 66; and annotation in 78 A.L.R. 1294. | [
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Carleton Harris, Chief Justice.
William Eugene Decker was charged with first degree murder, the Information alleging that appellant murdered his wife, Nettie Jean Decker, on September 7, 1960. On trial, Decker was convicted of second degree murder, and sentenced to ten years imprisonment. From the judgment so entered, comes this appeal. In urging a reversal, appellant relies upon four points, which we proceed to discuss, though not in the order listed in appellant’s brief. It is contended that the evidence was not sufficient to sustain a conviction of second degree murder, but we do not agree. Proof on the part of the State reflected that a man, identifying himself as Decker, telephoned Gale Williams, deputy coroner, on the day of the killing, and informed Williams that he (Decker) had just shot his wife. The-caller gave the location of his home, and the coroner' went to the premises. He found a young white woman-dead, and noted several gunshot wounds. His report reflected that she died of multiple gunshot wounds. Horace Wilson, a witness, who was not acquainted with either Decker or his wife, testified that he was in his potato patch, picking up sweet potatoes, when he noticed a cattle truck pass, which was being driven rather rapidly. The truck stopped at the Decker home, and a man went into the house. Soon, he came back out of the house, and appeared to be setting something down on the porch. The person then went to the truck, and thence back into the house. Shortly, Wilson heard three shots, and after a few minutes, two more shots. The man went out of the house, got in the truck, and drove away. Clifford Taylor, who operates a grocery store at Judsonia, testified that he had known Mr. and Mrs. Decker for about two months, and they were customers at his store; that the store was located about three hundred yards from the Decker home. He stated that about 3:15 in the afternoon, Decker came into his store, and said, “Call the ambulance and the sheriff. I have shot my wife.”; that Decker had a gun, and gave it to Taylor at the latter’s request. Decker called the sheriff, and told the witness, “If you will give me my gun, I’ll go back and wait for the sheriff.’’ Taylor returned the pistol, and Decker left the store. Bill Bogle, deputy sheriff, testified that he went to the Decker home, together with Pulley Bailey, Judsonia marshal. “I found Bill Decker sitting on a couch across from his wife. She was in a rocking chair, dead. He was sitting on a couch with a pistol by his side.” A three or four year old child, crying, was present. An examination of the premises disclosed a trail of blood from the back kitchen door to the bedroom, and blood was there found around a rocking chair, a dresser, and under the bed. Bloodstains were also found on the curtain which separated the two rooms. Six or seven empty cartridges were located, and two lead slugs were taken out of the wall. The gun used was a .22 caliber pistol, mounted on a .45 caliber frame. The child was taken to relatives in Bald Knob, and Decker was taken into custody. Subsequently, on rebuttal, Mrs. Carl Scott, a resident of McRae, testified that she saw Decker on the day he killed his wife, at “Dollie’s Place”, where he drank two bottles of beer; that Decker told her his wife had sued him for divorce, and he was under a restraining order not to go around her, but he was going to the home to see his children, and would shoot his wife if he had to. The evidence was sufficient to sustain the conviction for second degree murder, without the rebuttal testimony. See Section 41-2246, Ark. Stats. Also, Wooten v. State, 220 Ark. 755, 249 S. W. 2d 968, and Band v. State, 232 Ark. 909, 341 S. W. 2d 9.
Appellant asserts that the trial court erred by permitting the prosecuting attorney to cross-examine appellant relative to statements which Decker had given to officers on the day of the shooting. It is contended that while no confession, as such, was introduced against appellant, questions asked relative to statements previously given should be placed in that category, and no proper foundation had been laid for the admission of a confession. Of course, a defendant in a criminal case who elects to testify is subject to impeachment like any other witness, and the purpose of the questioning was to establish that Decker had earlier made contradictory statements as to the circumstances of the killing. In Brown v. State, 231 Ark. 363, 329 S. W. 2d 521, the same contention was made. We held, quoting from earlier cases, Black v. State, 215 Ark. 618, 222 S. W. 2d 816, and Hamm v. State, 214 Ark. 171, 214 S. W. 2d 917, that there was no error in permitting the State to show the prior inconsistent statements. In the Hamm case, this Court said:
“Appellant was questioned by the Prosecuting Attorney after his arrest, and his answers were taken down by the Prosecuting Attorney’s stenographer. * * * The stenographer was called to read her notes in contradiction of the testimony given by appellant at the trial. It is permissible always to impeach the testimony of a witness by showing that he had previously made statements in conflict with his testimony.”
Accordingly, this was not error.
For his third contention, appellant says that the court erred in refusing to give his requested instructions No. 3 and No. 4. We cannot consider the contention, for this matter was not noted as an assignment of error in the motion for new trial. It is well settled in this state that error cannot be predicated on the rulings of the trial court which were not assigned as erroneous in the defendant’s motion for new trial. Franklin v. State, 153 Ark. 536, 240 S. W. 708, Poe v. State, 168 Ark. 167, 269 S. W. 355.
Finally, it is contended that the court erred in excluding competent testimony on behalf of appellant. This assignment referred to the proffered testimony of witness Lewis Western before the court in chambers. There, counsel for appellant stated that Western, if permitted to testify, would state that on Monday afternoon, September 5th (two days before the shooting), he and his brother went with Mrs. Decker and a girl friend of Mrs. Decker’s to the home of appellant and deceased, and while there, “Something was said about what would happen if Bill, the deceased’s husband, happened to come in now.” If permitted to testify, the witness would state that the deceased stated that, “ ‘If he comes in, I will shoot hell out of him.’ ” The court refused to permit the testimony. It is admitted that the threat was not communicated to Decker. Under the particular circumstances of this case, we do not think error was committed. Of course, it is well settled that a communicated threat by the victim against the accused is admissible to explain the conduct, or show motive of the accused, when self-defense is relied upon, or an overt demonstration of violence on the part of the victim is present. Lee v. State, 72 Ark. 436, 8 S. W. 385.
It is likewise true, that where the defendant relies upon self-defense, uncommunicated threats are admissi ble where there is doubt as to who was the aggressor, but this evidence is admissible solely for the purpose of bearing on this question. See Parsley v. State, 151 Ark. 246, 235 S. W. 797, and Bell v. State, 69 Ark. 148, 61 S. W. 918, Lee v. State, supra.
The testimony relied upon by appellant as placing-in issue the theory of self-defense is as follows:
“A. I went in the front door, the other doors were •closed, and the air conditioner and the television was going and I walked in and my wife and Fred Davis, were lying or sitting on the bed and he jumped up and run out the back door and I started to see who it was and she grabbed me and blocked the door and I slapped her and she grabbed the gun and I tried to take it away from her.
Q. Where was the gun?
A. On the kitchen table.
Q. At the time she grabbed the gun did she make any statement to you?
A. I said, ‘Who was that?’ and she said, ‘None of your damned business.’
Q. That is what she said about this man?
A. Yes, sir.
Q. Did she say anything when she picked the gun up about what she was going to do to you?
A. Yes, sir, she said she would shoot me and I was trying to take the gun away from her.
Q. Did you ever at any time take the gun away from her and intentionally shoot?
A. No, sir, I did not.
Q. How do you account for the fact that she was shot?
A. I don’t know only just in the scuffle.”
Further:
“Q. At the time your wife grabbed the gun off of the — -was it the dresser in the kitchen?
A. No, it was a table.
Q. At that particular time were you doing anything at all, or attempting to do anything to her or offer any physical violence to her?
A. No, sir, I was not.
Q. At the time she grabbed it and said, among-other things, that she was going to shoot you, when you reached her and wrestled with her, state whether or not. Avhat you did you did it with —
Mr. Henry: He is leading the witness again. I object.
The Court: Yes, sir, the objection is sustained.
Q. Why did you do, when she got the pistol, why did you do what you did?
A. Because I was afraid she would shoot me and shoot the kids too.
Q. In other words, if she shot you she would shoot the children too?
A. That is what I was afraid of, yes, sir.”
The transcript reflects still further:
Q. You say she tried to get between you and bim and he ran out the back door?
A. Yes, sir.
Q. You say you asked her who it was?
A. I asked her who it was and what was he doing there, or something, I don’t remember just what I did say.
Q. I understood you to say awhile ago that you asked her who that was and what he was doing there and she said, ‘None of your damned business.’
A. I asked her who it was and what he was doing there and she said, 'It is none of your damned business.’
Q. Then she grabbed up the gun?
A. After I shoved her.
Q. Where did you shove her, which direction?
I shoved her backwards and she went back against the table.”
Subsequently he was asked the question, “Did you ever get the gun in your hands?”, and answered, “I don’t know. ’ ’
In the average case of self-defense, both parties generally have a weapon, or it is contended that because of greater physical strength on the part of the deceased, the defendant was forced to use a weapon to protect himself from great bodily harm. Here, there is only the one weapon, and appellant testified that he did not know whether he ever obtained possession of the pistol; that he did not intentionally shoot his wife. Of course, if he obtained possession, there was no necessity to shoot her, for she was then unarmed. But if otherwise, we do not feel that appellant’s testimony was such as to render the proffered proof of the uncommunicated threat admissible. It is apparent that his testimony itself is not completely consistent with the defense claimed, for it varies all the way from the contention that he shot her because he was afraid that she would kill him, and the children, to a claim that the killing was more or less an accident, occurring in the scuffle over the gun. The record also reflects that Decker, upon being arrested, told officers that his wife was trying to commit suicide, and in scuffling with her and endeavoring to take the gun away from her, the pistol discharged and killed his spouse.
Let us keep in mind that the evidence excluded is only admissible as tending to show the probable aggressor — the person who committed the first act of aggres sion. It appears from appellant’s testimony that Mrs. Decker only picked np the pistol after she was slapped and shoved against the table by her husband. In addition, the record reflects that appellant was under a court restraining order to stay away from his wife, children, and the house in which Mrs. Decker was living. In the face, and in defiance, of this order, he went to the home, and the killing occurred. It is also somewhat difficult to understand the statement that he was afraid ‘ ‘ she would shoot me and shoot the kids, too.” Only one child was present at the time of the killing, so this remark could have no reference to a fear of immediate danger at the time of the shooting. A belief that she might, at some time in the future, act in accordance with his statement, would, of course, have no bearing on the question of self-defense.
We find no error in the court’s refusal to admit the testimony of Lewis Western.
Affirmed.
An interesting article is found in Ark. L. Rev., Vol. 5 (1950-51), p. 207, by Bob Hogan, entitled, “Evidence of Uncommunicated Threats in Excusable Homicide Cases.” This article traces the development of the law in this state on the stated subject.
The pistol was fired six or seven times, and several bullets entered Mrs. Decker’s body. It is not entirely clear from the record whether she was struck three, or five, times. | [
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Neill Bohlinger, Associate Justice.
The appellant and the appellee were married on March 2, 1942, the appellant at that time being a stockholder in the Greater Little Bock Stock Yards, a corporation. The appellee was employed by the corporation as a bookkeeper. In November 1943 the corporation was dissolved. The appellant had acquired all the stock of the corporation and continued to operate the business. The appellee continued as bookkeeper for the business but was paid no salary.
The appellee herein contends that after the dissolution of the corporation she and the appellant became joint partners in the business and that thereafter the business filed partnership returns for income tax accounting and that for the last two months of 1943 and the years 1944-45-46 the profits of the business were divided equally between appellant and appellee. After the year 1946, the profits remained in the business and the living expenses of the parties and the expenses of the business were withdrawn from the joint business account as needed.
On February 12, 1960 the appellee filed in the Chancery Court her complaint seeking a divorce from the appellant. Two children had been born of the marriage and she asked permanent care and custody of the minor children; alimony and support money; possession of the premises which appellant and appellee had used jointly up until that time; and further asked for a division of the property commonly owned by the parties and for her statutory rights in all property individually owned by appellant.
The matter was presented to the Chancery Court which granted the appellee a divorce from the appellant, giving her the exclusive possession of the residence of the parties, custody of the minor children and awarded the appellee $300.00 per month for the maintenance and support of the minor children and also attorney’s fees. The part of decree granting the divorce, use of the living quarters, the $300.00 a month support money and attorney’s fees is not questioned here.
The chancellor further found that the parties herein were the owners and operators of the Greater Little Rock Stock Yards, a partnership in which each partner owned a one-half undivided interest; that the net worth of said business was $33,439.52; that the appellant was due the partnership account $17,500.00 as the proceeds from some bank stock that had been bought with partnership funds; that there was a refund of federal taxes due the partnership in the sum of $9,327.57, making the adjusted value of the partnership $60,267.09, one-half of which sum was awarded to the appellee. The court further found that the appellee was entitled to a one-third interest in the cash surrender value of certain life insurance policies which one-third interest amounted to the sum of $12,004.00. The appellant was further required to execute a proper conveyance of the residence to appellee so as to create an estate by the entirety in the said real property. The court further awarded the appellee a one-third interest for life in 17 acres of land in appellant’s name in Pulaski County, Arkansas, of a value of approximately $5,000.00.
The court further found that purchases of U. S. Savings Bonds had been made from partnership funds for benefit of the two minor daughters of the parties; bonds in the amount of $30,000.00 for Lou Ann Hogan and of $20,000.00 for Patti Hogan. The bonds purchased for Patti Hogan were cashed by the appellant and invested in the business and the transaction appears as a credit account in the name of Patti Hogan on the books of the Stock Yards Company and is listed in the accounting as a liability. The court directed that this sum and the bonds purchased for Lou Ann Hogan be held in trust.
Prom this decree the appellant prosecutes this appeal, alleging that the Greater Little Rock Stock Yards was never a partnership and that the court erred in dividing that property equally between the parties herein. It does not appear to be questioned that the parties filed a partnership return in reporting their income. The returns, as filed, showed that each of the parties hereto owned fifty per cent of the business and the appellant had signed the statement on the tax form, in which he declared, under the penalty of perjury, that the return had been examined and was true and complete. The federal partnership return appears to have been questioned by the Internal Revenue Service and the partners herein went to the Regional Office in Oklahoma where they jointly urged that Mrs. Hogan was a partner in the business and the Treasury Department thereafter recognized Mrs. Hogan as a partner in the Greater Little Rock Stock Yards and made an adjustment in the partnership returns on that basis. The appellant further, in his testi mony, used the expression that “he fought the government for it to be a partnership” and that the partnership relationship had saved him approximately $100,-000.00 in four or five years. It further appears that for more than three years the profits of the business were divided equally between Mr. and Mrs. Hogan. The profits were not divided after 1946 for it is stated that profits were deemed necessary for the expansion and progress of the business and the parties hereto thereafter only took their living and business expenses from the joint business account.
The appellant herein now says that a partnership did not exist for the reason that inter alia Mrs. Hogan had not put any money into the partnership or purchased any part thereof from him. It was not necessary for her to so do in order to create a partnership. A partner may bring to the business of the partnership other things than money. A partner may contribute skill or other things that are necessary to accomplish the purpose for which all business partnerships are formed — namely, making money. This seems to have been accomplished by Mrs. Hogan’s participation in the partnership when we consider the appellant said the partnership arrangement saved him $100,000.00 over a period of several years and appellee continued to work at the business. This has all the earmarks of a partnership and we are unable to say that the chancellor erred in so holding and making a division on the basis of a partnership.
In Reed v. Reed, 223 Ark. 292, 265 S. W. 2d 531, this court said:
“There is a sharp conflict in the testimony as to whether Helen is a partner in the plumbing business, and although there is substantial evidence to sustain the contention of such a partnership, there is also convincing evidence to the contrary; and we cannot say the Chancellor’s finding in that respect is against the preponderance of the evidence.”
Further, in Williams v. Williams, 186 Ark. 160, 52 S. W. 2d 971, a divorce action in which there was a controversy over the property settlement, this court said:
“* * * jg c]ear from the evidence that both appellant and appellee worked and conducted the business which resulted in the accumulation of the property in controversy. It is immaterial whether there was a partnership. If appellee and appellant, by their joint work, labor and management, acquired the property, a court of equity would, even before the recent statutes, protect the wife’s interest in the property.
* * * The Chancellor found that the appellee was the owner of one-half of the property, and we cannot say that his finding is against the preponderance of the evidence. ’ ’
We are further unwilling to disturb the chancellor’s finding as to the value of the partnership property. The finding was largely in line with the testimony of the appellee but the appellant had the books of the business and testified that he had an auditor, whom he neither named nor produced, and offered only generalized statements that were not, in the opinion of the chancellor, sufficient to overcome the testimony and evidence presented by the appellee. This finding we do not disturb.
Point two argued by appellant for reversal alleges that the court erred in admitting certain ledger sheets introduced by the appellee. We take it that the point is directed solely at the two ledger sheets which the appellee identified and introduced as the original ledger sheets from the books of the Greater Little Rock Stock Yards. They were identified as to the date they were made, the person making them, the transactions they purported to show and that they were made during the regular course of business. These sheets were admissible under Ark. Stats. 28-928 for the purpose of showing that the appellee had participated in the profits of the business. The ledger sheets were not admitted to show the partnership itself, but for the purpose of showing par ticipation in the profits which is only one of the criteria for showing the existence of a partnership. Even if the ledger sheets had not been admitted, there was other sufficient evidence to show that the partnership did exist.
For his third point the appellant contends that if a partnership did exist, the lower court erred in ordering appellant to pay one-half of the book value without complying with the Uniform Partnership Act. We do not agree. The Uniform Partnership Act does not prevent a chancellor, in a divorce proceeding, from dividing the partnership property between a man and wife who are the partners, when there are no other partners or creditors involved.
In the case of Johnson v. Lion Oil Company, 216 Ark. 736, 227 S. W. 2d 162, this court said:
“As long as the agreement creates the basic structure of a partnership, we think the parties may insert details that would be treated differently by the Act in the absence of the contractual provisions.”
Since partners can agree that certain matters can be handled in a different manner than that provided under the Uniform Partnership Act in the absence of other partners or creditors, a chancery court, in dividing property between man and wife in a divorce proceeding, may proceed in a different manner than provided in the Partnership Act. We find no error and the case is affirmed on direct appeal.
The appellee has cross-appealed from the denial of the chancery court of her prayer for a one-third interest in the one-half of the partnership property decreed to appellant. We think it is well settled that the wife is entitled to a one-third interest in the personal property owned by her husband as an individual. But the rule applicable in this case is found in McLerkin v. Schilling, 192 Ark. 1083, 96 S. W. 2d 445:
“It will be noticed that the statute is applicable to ‘the personal estate of such deceased person.’ Partnership assets are not the personal estate of the individual partners during their lifetime, and death of one of the partners does not make them such. Partnership assets belong to the partnership, and not to the individual partners. Such assets never become the personal estate of the individual partners until the partnership is dissolved, its debts paid, and the remaining funds distributed. The death of one of the partners dissolves the partnership. We have so held since Bernie v. Vandever, 16 Ark. 616. In the same case and ever since, it was and has been held that the surviving partner is entitled to the partnership property and effects for the purpose of paying the debts of the firm. Marlatt v. Scantland, 19 Ark. 443; Adams v. Ward, 26 Ark. 135; Cline v. Wilson, 26 Ark. 154; Hill v. Draper, 54 Ark. 395, 15 S. W. 1025; Coolidge v. Burke, 69 Ark. 237, 62 S. W. 583; Evans v. Hoyt, 153 Ark. 334, 240 S. W. 409.”
As this court said in the case of Richardson v. Adler, Goldman & Co., 46 Ark. 43, “property belonging to the firm cannot be said to belong to either partner as his separate property.”
In the case of Reed v. Reed, 223 Ark. 292, 265 S. W. 2d 531, it was stated, in connection with the statutory interest of the wife in her husband’s property, that she is entitled to one-third of her husband’s personal property absolutely [Citing cases]. This would include one-third of any interest the husband might own in a partnership with his brother or anyone else. Since it is pointed out that the wife might be entitled to an interest in a partnership between her husband and someone else, it is thus stated that the application is to a partnership in which the wife is not involved. To reach the interest of the husband under those circumstances, a charge order must be resorted to.
In a partnership, the partners are co-principals and the partnership estate is not altogether dissimilar from an estate in the entirety. In any event, it cannot be said to be individual personal property. Ark. Stats. 65-125, Nature of partner’s right in specific partnership property — states:
“A partner is coowner with his partners of specific partnership property holding as a tenant in partnership. * * *
(e) A partner’s right to specific partnership property is not subject to dower, curtesy, or allowances to widows, heirs, or next of kin.”
Since the one-half interest which the appellant had in the partnership was not specific personal property, it follows that the statutory one-third interest of the appellee does not apply and the chancellor was correct in so holding.
This case is affirmed both on direct and cross-appeal.
Bobinson and Johnson, JJ., dissent.
Ward, J., not participating. | [
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Paul Ward, Associate Justice.
This is the second appeal involving the same parties and the same 80 acres of land in Jefferson County. In the first opinion (Vernon v. McEntire, 232 Ark. 74, 339 S. W. 2d 855) it was held that Luchers Vernon and his wife had the right to redeem the land from the McEntires. The background facts are set forth in that opinion.
When the mandate on the first opinion was filed in the trial court no further pleadings were filed by either party. At the beginning of the second hearing the trial court correctly stated the issues in the following language :
“The sole question before the Court is whether the McEntires, appellees in the case of Vernon v. McEntire, 339 S. W. 2d 855, have made improvements on the land in controversy since the Decree of this Court and if so, whether they are entitled to be compensated for said improvements in addition to being compensated for taxes and insurance premiums they paid. Also, the question of rents due the Vernons is before the Court.”
At this hearing it was agreed that the record on the first appeal would be considered as a part of the record on this appeal, but testimony was also introduced by both sides on the issues as above defined. It is agreed by both parties that the Vernons owe the McEntires the sum of $3,100 (as principal) on the purchase price of the land.
At the conclusion of the hearing the trial court, after first fully setting out its reasons, found the account between the parties to be as follows:
Appellants owe appellees
1. 1,100.00 592.57 Balance on land Q°/o interest, 1-1-58 to 3-31-61
2. For permanent improvements 2,000.00
3. 1958-1960 taxes 6% interest to 3-31-61 Total 531.52 68.37 $6,292.46
Appellees owe appellants
1. $ 400.00 Rent on land 6% interest, 1-1-61- to 3-31-61 6.00
2. House sold from land 6% interest, 4-17-60 to 3-31-61 65.00 3.65
3. Costs, first appeal 6% interest, 12-15-60 to 3-31-61 137.50 2.38 $ 614.53 Total
Accordingly the trial court decreed it would be necessary for appellants to pay appellees the sum of $5,677.93 in order to redeem the land, giving appellants 10 days to deposit said amount in the registry of the court, otherwise fee simple title would vest in appellees.
Appellants in prosecuting this appeal object to only two items in the decree rendered by the trial court. One is the $2,000 allowed appellees for improvements and the other is the date from which interest was allowed on the $3,100 balance.
One. We agree with appellants’ contention that appellees are not entitled to reimbursement for money-spent in making improvements on the land. We reach this conclusion because we find no evidence in the record to support a finding that appellees acted in good faith (as defined by this Court) when they made the improvements. It may be conceded, for the purpose of this opinion, that appellees spent $2,000 in clearing, draining, ditching, etc. on the 80 acres of land, but we do point out that the amount of recovery for improvements under the Betterment Statute is based on the enhanced value of the land and not on the cost of improvements. See: Wallis v. McGuire, 234 Ark. 491, 352 S. W. 2d 940. We find no evidence of enhanced value in this case.
There are two ways or theories by which appellees could seek recovery for improvements in this case, providing, of course, they had proven the enhanced value of the property. One, under Ark. Stats., § 34-1423 (commonly known as the Betterment Act) and the other would be to enforce an equitable right, as recognized in Foltz v. Alford, 102 Ark. 191, 143 S. W. 905. However, in either event, there can be no recovery for improvements unless made in good faith. Therefore, it is in order now to find out how this Court has defined “good faith” when used in this connection.
A case closely in point on principle is Douglass v. Hunt, 98 Ark. 320, 136 S. W. 170. In that case Hunt testified:
“. . . he was advised by attorneys of well known learning and integrity that his deed from Lovejoy conveyed the title in fee simple, and that he occupied and improved the land in the honest belief that he had a perfect title. He testified, however, that both before and after he purchased the land from Lovejoy he received information that appellants, who were the children of Mrs. Hackney, were going to lay claim to the land at her death.”
There, in denying Hunt’s claim for improvements, we said: “ ‘It must be an honest belief and an ignorance that any other person claims a better right to the land. ’ ’ ’
In the case of Graves v. Bean, 200 Ark. 863, 141 S. W. 2d 50, the Court, in dealing with this same question, made the following statement:
"Cases as to the good faith required are illustrated by such authorities as Patton v. Taylor, 144 Ark. 254, 224 S. W. 49; McDonald v. Rankin, 92 Ark. 173, 122 S. W. 88; Foltz v. Alford, 102 Ark. 191, 143 S. W. 905, Ann. Cas. 1914A 236.
“One chargeable with notice as to the kind of title he holds certainly may not, under the foregoing authorities, make such improvements as will impair the title in fee.”
In the same connection the Court also said:
“It can serve no beneficial purpose or interest to enter upon any extended discussions of these matters as her estate must fail in the event she did not make the improvements under color of title or in event that she did not make them in that good faith within the meaning of that expression as defined.”
In Patton v. Taylor, 144 Ark. 254, 222 S. W 49., the test of good faith was put this way :
“To entitle an occupant to remuneration for his improvements, the test of good faith is: Did he make them in the honest belief that he was the true proprietor and in ignorance that any other person claimed a better right to the land?”
Likewise, in the case of McDonald v. Rankin, 92 Ark. Ark. 173, 122 S. W. 88, the Court, after reviewing at length many cases on the meaning of good faith, said:
“From all these cases it will be seen that the cardinal requisite that the occupant should possess is good faith, and an honest belief in the title under which he occupies the land, and an ignorance of his title being questioned by another who claims a better right, in order for him to be entitled to the benefits of the statute.”
The meaning of good faith was very clearly restated in Welch v. Burton, 221 Ark. 173, 252 S. W. 2d 411, this way:
“The statute governing betterments is Ark. Stats. 34-1423, and runs in favor of anyone believing himself to be the owner. This has been interpreted to refer to anyone who acts in good faith and our cases define good faith, and places the burden of proof on the claimant. Greer v. Fontaine, 71 Ark. 605, 77 S. W. 56. In Beard v. Dansby, 48 Ark. 183, 2 S. W. 701, it was said that good faith consists of ‘ an honest belief and an ignorance that any other person claims a better right to the land’.”
Applying the definition of the words “good faith” as so clearly set forth in the previously cited cases, we cannot escape the conclusion that appellees were not acting in good faith when they made the improvements for which they seek recovery here. As stated in the Burton case, supra, the burden was on appellees to prove good faith. It can hardly be seriously contended that appellees did not know appellants were claiming title to the land at the very time they (appellees) were making the improvements thereon. The pertinent facts on that question are set out below.
The earliest date any improvements were made by appellees was in February, 1960 after taking possession of the land in January of that year. Did appellees know in February, 1960 that appellants were claiming title to the 80 acres ? Obviously the answer is that they did know. The record on the first appeal which is a part of the record on this appeal, shows that on January 30, 1959 appellants filed a complaint against appellees in which they asked the court to require appellees to convey title to them. It also shows that on November 10, 1959 the trial court refused the relief asked for by appellants. It further shows that on November 30, 1959 appellant filed a notice of appeal to this Court. Appellees do not disclaim knowledge of appellants’ intention to appeal nor are they in any position to do so, because Section 3 of Act 555 of 1953 required the clerk to give them written notice. Therefore when appellees began making improvements on the land some two months later (February, 1960) they did know appellants were still claiming title to the land, and also that appellants were prosecuting that claim in court. That being true, appellees proceeded to make improvements at their own risk, and it cannot be said they did so in “good faith” as those words have been defined by this Court.
Two. The trial court also erred in requiring appellants to pay interest on the balance of $3,100 from January 1, 1958. The trial court fell into this error because it found appellants had never made a tender of payment to appellees. In our opinion on the first appeal we made the specific finding that appellants did make such tender, and that finding is not subject to change after the opinion became final. Appellants cannot be charged with interest on the $3,100 after the tender was made. Although appellants necessarily made the tender before they filed the original complaint on January 30, 1959 yet, in the absence of proof of the exact time, we will give appellees the benefit of the uncertainty and fix the date of tender as of January 30, 1959. This means that appellants are charged with interest from January 1, 1958 to January 30, 1959 but not thereafter.
Except for the two items above discussed the decree of the trial court is affirmed.
For the errors above indicated and to that extent the decree is reversed, and the cause is remanded with instructions to enter a decree not inconsistent with this opinion.
Reversed and remanded.
Harris, C. J., and McFaddin, J., dissent. | [
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Sam Robinson, Associate Justice.
This is a personal injury case. A pickup truck belonging to the appellant, J. P. Pilgrim, broke down and he got his friend, Robert Cheek, to pull the disabled truck to White’s Garage, located on the west side of Highway 65 north of Conway. This was done by attaching Pilgrim’s truck to the back end of Cheek’s truck with a chain about six feet long.
Cheek and Pilgrim then proceeded north on Highway 65 with Cheek driving his pickup and pulling the other truck with Pilgrim at the steering wheel. They agreed that Pilgrim would give whatever arm signals Cheek gave. When they reached a point near White’s Garage, which was on their left, Cheek turned to the left across the highway and, of course, he pulled Pilgrim’s truck across the highway.
At this time, James Bostic was travelling south on Highway 65 in his automobile at a rapid rate of speed. In an effort to avoid a collision with Cheek and Pilgrim, who were executing a left turn in front of him, Bostic pulled to his left, sideswiped Pilgrim’s truck and ran into a car occupied by appellee, Glover Joyner, and other members of the Joyner family, who were travel-ling north on the highway and all of whom were injured as a result of the collision. There is no contention that the Joyners were in any manner negligent.
The Joyners filed suit against Bostic, Cheek and Pilgrim. The actions were consolidated for trial. Upon a trial there were verdicts for the Joyners against all three defendants. Only Pilgrim has appealed.
There are two points for decision. First, is there any substantial evidence of negligence on the part of Pilgrim. We think there is. Pilgrim testified that before he and Cheek started north on Highway 65 they agreed that Pilgrim would also give any arm signals made by Cheek. Both Pilgrim and Cheek testified that they gave a left turn signal before they turned across the highway, which, of course, it was their duty to do. Ark. Stats. 75-618(b) provides: “A signal of intention to turn right or left shall be given continuously during not less than the last 100 feet travelled by the vehicle before turning. ’ ’ The jury could have found that Pilgrim was negligent if he failed to give such signal. Both Bostic and Mrs. Montean Joyner, who was driving the Joyner car, testified that neither Cheek nor Pilgrim gave any signal.
The Complaint alleges that the defendants failed to give the proper signal upon turning to the left. Pilgrim knew he was to turn to his left at White’s Grarage. Of course, he actually steered the towed vehicle to his left across the highway. The jury could have found from the evidence that no left turn signal was given and in failing to give such signal Pilgrim failed to do that which an ordinarily prudent person would have done under the circumstances. If such signal had been given Bostic might have seen it and avoided the collision. In 5 Am. Jur. 687, it is said: “The driver of the automobile which is doing the towing and the person in charge of the towed car owe a duty to pedestrians and other vehicles to exercise reasonable and ordinary care.” In Musgrave v. Studebaker Bros. Co., 48 Utah 410, 160 P. 117 the Court said: “The law does not prescribe any particular method by which vehicles may be moved on the streets. But in moving them it imposes the duty of exercising due or ordinary care. What constitutes ordinary care in view of a particular set of facts is ordinarily for the jury. That is, it is for the jury to say whether, in view of all the facts and circumstances in case of dispute, or where different inferences may be deduced by different minds, the conduct of the party charged with negligence did or did not constitute negligence, and if such conduct was negligence whether it was the proximate cause of the accident.”
Appellant further contends that even if Pilgrim was negligent there is no substantial evidence that such negligence, if any, was the proximate cause of the collision. In the circumstances of this ease it was a jury question as to whether Pilgrim’s negligence was the proximate cause of the injuries sustained by the Joyners. Without objection, the Court gave the following instruction: “Proximate cause, means that to be actionable the negligence relied upon to give a right of recovery must be the direct and proximate cause of the injury or damage complained of. The proximate cause of an injury or damage, in that cause, which in natural and continuous sequence unbroken by any efficient intervening cause. produces the injury or damage, and without which the result would not have occurred, and being a cause from which a person of ordinary sagacity and experience could foresee that the result might happen.
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Smith, J.,
(after stating the facts. It is true that instruction No. 4, given at appellee’s request, did not comport with what he said the facts were, but the instruction correctly declared the law, and if the jury found the facts to be as they were there hypothetically stated, then appellee was entitled to a verdict. We think the court properly gave this instruction under the circumstances. The fact that appellee was drunk constituted no defense, if his presence was discovered in time to have avoided injuring him, or if, by keeping a constant lookout, his presence could have been so discovered.
The court gave numerous instructions declaring the law in conformity with the opinion of this court in the case of Russell v. St. Louis S. W. Ry. Co., 113 Ark. 353, 168 S. W. 135.
We think no error was committed in reading the lookout statute to the jury, although the better practice is for the court to interpret any statute, about the interpretation of which there is or may be a difference of opinion. But the facts in this case are unlike those in the case of Kansas City, F. S. & M. Ry. Co. v. Becker, 63 Ark. 477., which last mentioned case was reversed because of the action of the court in reading the fellow-servant statute, then in force, to the jury, that statute being what are now sections 6658 to 6660 of Kirby’s Digest. In the Becker case there wias ia sharp conflict over the construction of this statute, and in the opinion it was there said:
“The circuit court erred in giving the statutes, without explanation, as an instruction to the jury. They were susceptible of more than one interpretation, as shown by the contention of counsel in this ease, and parts of them were not applicable to the facts before the jury. It was the duty of the court, and not of the jury, to interpret the statutes. The instructions of the court should be susceptible of only one construction.”
The point there in controversy was whether an engineer iand fireman were ifellow-servants, and the court held that the reading of the statute was improper in the elucidation of that question, as it was capable of more than one construction. But no such question arises in this ease, for, while the lookout statute is susceptible of more than one construction, only one construction was given it at the trial.
The majority of the court are of the opinion that, while the argument of appellee’s counsel was improper, under the circumstances, it did not constitute prejudicial error calling for the reversal of the case. It has been said in numerous decisions of this court that a certain discretion abides with the trial judge in rebuking improper arguments, and that a judgment will not be reversed because an improper argument was made, if it appears that no prejudice resulted therefrom. It is true the court overruled the objection made to this argument, but it must have appeared to the jury that, upon further reflection, the court had concluded that an erroneous ruling had been made upon this subject, and the court’s former ruling was reversed and the jury told that the argument was, in fact, an improper one, and should not be regarded by them. The court did finally rule with sufficient firmness on this question, but it is insisted that this ruling should have been made immediately, upon •objection being offered, and, further, that the argument itself was of such an incendiary character that no reproof of counsel could cure the harm resulting from its having 'been made.
A number of our oases, on the subject of improper arguments are reviewed in appellant’s brief and among those chiefly relied upon are the eases of Union Compress Co. v. Wolf, 63 Ark. 174, and German-American Insurance Co. v. Harper, 70 Ark. 305. In the first of these cases the attorney for appellee referred to the fact that appellant had taken a change of venue and offered to read the affidavit in support of the petition therefor, after he had been told by tthe court (that this was exceedingly improper. The argument was held prejudicial because, as the court there said, “where counsel persevere in saying things that are not pertinent to the issue and are prejudicial to the other party, the court in civil cases should see that they do not reap any benefits from such statements, even to the extent-of setting aside a-verdict in favor of the client of the attorney thus offending, if the court should deem that the prejudice can not otherwise he overcome.”
* In the insurance company case, supra, the judgment was reversed because appellee’s attorney made a statement of fact, not supported by any -evidence, concerning the integrity and veracity of -a material witness for appellant. The court held that under the circumstances the statement of counsel left an unfavorable impression on the jury, as to the veracity of the witness, which no admonition from the court could eradicate.
For similar reasons other cases have been reversed, for improper arguments, but in each of them it appears that the court either gave no directions to the jury to disregard the argument, or the argument itself was so prejudicial that no direction to the jury could have secured a fair trial, or that the direction which was given did not accomplish that purpose. Here the argument was n-ot in defiance of the court, nor did it question the veracity of 'any witness, and while it was highly improper and the trial court should have so held immediately, even though no objection had been made, yet it appears that the court did make a proper ruling upon the conclusion of the speech in which the language quoted was used. The record does not show whether this speech was concluded soon after this statement was made or not, but it does show that at its conclusion the court reversed its action, in overruling the objection, and made the ruling which should have been made earlier.
The- presumption is that the jury followed the directions of the court and the moderate verdict returned gives no indication to the contrary. The judgment is affirmed. | [
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Smith, J.,
(after stating the facts). No point is made as to the illegality of the transaction out of which this litigation arose. No contention is made that this was a (lottery, or that the element of chance entered into the award of the prize. Had such been- the case, the entire transaction would have been illegal and the courts would have refused any aid in enforcing any rights depending upon it. McDaniel v. Orner, 91 Ark. 171; Watkins v. Curry, 103 Ark. 414; Carey v. Watkins, 97 Ark. 153; Burks v. Harris, 91 Ark. 205; Wood v. Stewart, 81 Ark. 41.
The jury was warranted, under the evidence, in finding that appellee became a contestant upon the condition that coupons would be issued by the members of the clufb, only to purchasers of goods from them, or to persons making collections for them. Appellant, of course, could have prescribed any terms he saw fit for the use of the coupons which he furnished the members of the club, but fairness required that the same terms be pre-
scribed for all contestants and that the contest be carried out upon the terms which induced persons to become contestants, and that no changes should thereafter be made, to which the contestants themselves 'did not assent. The jury might have found from the evidence that appellant induced appellee to become a contestant by the representation made to her that votes would be permitted only where goods had (been sold by club members, or •collections had been made for them, and that appellee would have earned the prize had that engagement been kept, but that appellant permitted votes to be cast in sufficient numbers to defeat appellee, which were not based upon either sales or collection's.
The instruction given at appellee’s request correctly submitted these issues to the jury, and the modification which the court made of appellant’s instruction, set out above, was a proper one.
Finding no prejudicial error, the judgment of the court below is affirmed. | [
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Smith, J.
Special School District No. 2, of Miller County, Arkansas, by its directors, sued the stockholders of the Texarkana Trust Company, to recover the sum of $3,217.66, which had been deposited with the trust company prior to October 1,1913, by the directors of the school district, the character of the funds being known at the time the deposit was received. The trust com pany was placed in the hands of a receiver on November 12, 1913, and its affairs are now being administered under the insolvency laws of this State. This deposit was derived principally from the sale of bonds, although the amount was credited by interest allowed, and by the proceeds of the sale of a certain lot, and by some insurance collected. It is sought to charge the directors of the trust company with liability for this deposit under the provisions of sections 1990-1993, of Kirby’s Digest, and this uppeal involves the applicability of those sections to the facts of this case, the trial court having directed a verdict in favor of the school district.
It is said, too, that Act No. 113, of the General Assembly approved March 3, 1913, page 462, supersedes the above numbered sections of the Digest, as it undertakes to cover the entire subject of the liability of shareholders in a banking corporation. It is urged that section 36 of this banking act of 1913 accomplishes this result. That section reads, as follows:
“(Section 36. The stockholders of every bank doing business in this 'State shall be held individually responsible equally and ratably, and not one for 'another, for all contracts, debts and engagements of such bank, to the extent of the amount of their stock therein, at the par value thereof, in addition to the amount invested in such stock; provided, that persons holding stock as executors, administrators, guardians or trustees shall not be personally subject to liability as stockholders, but the estates and funds in their hands shall be liable in like man-: ner and to the same extent as the testator, intestate, ward or person interested in such trust fund would be, if living, and competent to act and hold the estate in his own name.”
It is unnecessary to decide here the liability of shareholders in banking corporations where that liability accrues after the banking .act of 1913 became effective. The facts here are that this banking act of 1913 was not in force at the time the liability of appellants became fixed. The deposit in this case was made and the trust company had failed and been placed in the hands of a receiver before this banking -act was in force. The presumption is that all legislation is intended to .act prospectively, and not retrospectively. Sections. 1990-1993, of Kirby’s Digest, were intended for the protection of the custodians .of the public funds therein named, and we find nothing in the banking act to indicate any purpose to change the liability of shareholders of .banking institutions in which public funds had been deposited where that liability had become fixed bv the failure to pay over as required by those sections. And we need not, therefore, consider the power of the Legislature to .change this liability, had such purpose been manifested by the banking act.
By an act numbered 137 of the General Assembly of 1891, found at page 230, of the acts of that year, it was enacted that “It shall be unlawful for any officer of this State, or of any county, township, city or incorporated town in this State, or any deputy clerk or other person employed by any such officer, having the custody or possession of any public funds, by virtue of his office or employment, to use any of such funds in any manner whatsoever for his own purpose or benefit, or to loan any of such funds to any person or corporation whomsoever or whatsoever, or to permit .any person or corporation whomsoever or whatsoever, to use any of such funds, or to pay or deliver any such funds to any person or corporation, knowing that he is not entitled to receive it, or for any such officer to wilfully fail or omit to pay over any such funds to his successor in office at the expiration of his term of office. ’ ’
The Legislature of 1903 amended this act by the addition of the following proviso :
“But collectors of taxes, county treasurers .and treasurers of cities and incorporated towns may deposit the public funds in their custody in incorporated banks for safekeeping; and the said officers and the sureties on their official bonds, the bank and the stockholders of the bank shall be liable for .all funds that such bank on demand shall fail to pay to the person entitled to receive the same.”
Section 1993 of Kirby’s Digest, is a portion of the above-mentioned act of 1891, and it provides:
“For the purpose of this -act ‘public funds’ shall be -construed to mean all lawful money of the United States, -and all State, county, city, town, or school warrants -or bonds, or -other paper having a -money value, belonging to the State, or to any county, city, incorporated town or school district therein. ’ ’
It is thus seen that by the act of 1891, -it was made unlawful for the custodian -of public funds to make a general deposit of such funds with any bank or trust company; but by the act -of 1903, (Kirby’s Digest, § 1990), collectors of taxes, county treasurers and -treas-' ur-ers -of -cities and incorporated towns were permitted to deposit funds in their custody in incorporated banks for safekeeping. And, when so deposited, the stockholders of -such bank were made liable for the deposit, upon the failure of the bank to pay the deposit on demand to the person -entitled to receive it.
It is -said th-at this act should be strictly construed and that, when -so -construed, it can have no application to this deposit, for the reason that it was made by school directors, and not by a collector -of taxes, nor by the treasurer of -any -county, city or town, and that this -act inures only to the benefit -of collectors and treasurers, and that no -other persons depositing public funds can claim the benefits of its provisions.
The majority of the'-court -are of the opinion that only -collectors and the treasurers named can have’ the benefit of this a-ct, and the stockholders of the bank are, therefore, only liabl-e for -su-oh deposits. The majority of the court are further -of the opinion that, although this deposit was made' by the officers of the school district, it was necessarily for the benefit of the county treasurer, as the legal -custodian of all such funds.
The -directors of school districts, whether common school or -special, are n-ot the -custodians of -the funds of their respective districts. No provision is contained in the law for the election, óf any member -of a school board as treasurer of such board. It is contrary to the spirit and genius of our laws that any one should handle public funds except bonded officers, whose bonds are conditioned to faithfully account for all moneys coming into their hands by virtue of their offices.
Section 46 of article 7 of the Constitution of this State names the officers to be elected by the qualified electors of each county, and, among others, ‘ ‘ one treasurer, who shall 'be ex-officio '.treasurer of the common school fund of the county.”
All special free school districts are authorized by sections 7696 to 7699 of Kirby’s Digest to borrow money for certain designated purposes, and to mortgage the property of the district as security therefor and to evidence the indebtedness by certificates of indebtedness issued by the board of directors of the school 'district. Section 7697 provides that such evidences of indebtedness, whether warrants or promissory notes, shall be as valid as if there were money in the county treasury to pay them at the time they were drawn, and provides that such evidences of indebtedness need not be registered with the county treasurer till the time for payment, but shall be drawn upon the building fund and paid out of that fund in the order of their date, as that fund is collected by successive levies of taxes.
It is true it is not expressly provided that the treasurer shall be the custodian of the proceeds of money derived from the sale of bonds, but the context of the sections above quoted from makes it plain that the Legislature so intended, and that the Legislature assumed that the treasurer would necessarily be the custodian of such funds, without express provision to that effect.
The section of the Constitution quoted mentions only “common school fund,” but no provision is made for any other officer to be the custodian of public funds, after the same have been collected.
Various sections of the Digest, which we need not set out, defining the duties of the treasurer and providing for Ms settlements, together with various sections of the statutes relating to the conduct of the public schools of the State, and the disbursement of their funds, make it evident that the Legislature contemplated the county treasurer should be the custodian of ¡all the funds belonging to the various districts of the county, whether common school or special.
The case of Helena Special School District v. Kitchens, 108 Ark. 137, does not conflict with this view. It was decided in that case that the county treasurer was not entitled to commissions upon the proceeds of a sale of bonds issued by the Helena Special School District, but it was not there decided that the treasurer was not the proper custodian of the money. It does appear, from the statement of facts in that 'Cáse, that the funds derived from the >siale of the bonds were never placed in the treasurer’s hands; but the right to the custody of those funds was not involved in that litigation. Indeed, if appears, from the statement of facts, that the fund had been entirely disbursed by the officers of the district in the construction of the buildings, for the payment of which the bonds had been issued. The decision in that .case was uninfluenced by the fact that the treasurer had never had the custody of the money.
In the case of Honey v. Greene County, 102 Ark. 106, we held, in a case where the county treasurer had had the custody of certain drainage funds under the general drainage law of the State entitles him to such custody, that no commission could be charged because none had been provided for. And in the more recent case of Haley v. Thompson, 116 Ark. 354, we held that a collector was not entitled to commissions .on certain drainage funds, although he had been required by the law to make this collection, for the reason that no provision had been made for the payment of his commission. So, an 'officer'may be entitled to the custody of public funds and may he required under his bond to account for them, and yet be entitled to no commission for handling them.
The treasurer of Miller County is not a party to this litigation; yet he is the beneficiary of it, because he is entitled to the custody of the deposit, for, although it was not made in his name, it should .have been. This bank is no longer a going concern, but is now in the hands of a receiver, and. there has been a consequent failure to pay this deposit to the person entitled to receive it, and that person is a county treasurer, who has the right, under section 1990 of Kirby’s Digest, to- deposit public funds in the custody of an incorporated bank, the stockholders of which are thereby made liable to him individually for the full amount thereof.
The judgment of the court below will not be reversed because the treasurer of the county is not a party to this litigation.
In the case of Clarke v. School District No. 16, 84 Ark. 516, which was a suit by a school district against one of the directors thereof for money which had erroneously been paid to said director, in which suit, however, the county treasurer had 'been made a party, the court said:
“The school district, having been reimbursed by Bussell (the county treasurer), was not va necessary party. It was not, however, an improper party, for the funds belonged to it; and, as it had been paid, it could sue for Bussell’s benefit. * * * In reality, the school district here was only a party for1 the benefit of Bussell, it having already been paid.”
So here the recovery is for the benefit of the -county treasurer as the legal custodian of the funds and the judgment of the court below is, therefore, affirmed. | [
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McCulloch, C. J.
This case involves a controversy over the title to a tract of 120 acres of land in Lincoln County, Arkansas. Appellees, Ella Josephine -and Edwin R. Dyer, are the widow and only child, respectively, of E. R. Dyer, deceased, who it is claimed, was the owner of the land. Their contention is that appellant, J. W. Dyer, entered into possession of said land as a tenant of said E. R. Dyer, and since 'the death .of the latter appellant has refused to surrender possession after termination of his tenancy. Appellant contends, on the contrary, that he entered into possession of the land in controversy under parol agreement with E. R. Dyer that the latter would convey the same to him in consideration of Ms occupancy of certain other lands for said E. R. Dyer. He asked the court, in his cross-complaint, to decree specific performance of said contract on the ground that he performed his part of it by occupying the land in controversy, as well as the other lands owned by E. R. Dyer, and that he made valuable improvements on the tract in controversy pursuant to s;aid contract. The ease was heard upon the pleadings and depositions of witnesses, and the chancellor found against appellant upon the facts alleged in Ms cross-complaint and rendered a decree accordingly.
The evidence shows that E. E. Dyer was the owner of 320 acres of land in Lincoln County, including the 120 acres in controversy, but that there was an .apparent defect in the title which (he, the said E. E. Dyer, considered it necessary to cure by actual occupancy of the land for the statutory period necessary to confer title by limitation. There was a small amount of cleared land on this particular tract and improvements of inconsequential value. Appellant was a brother of E. E. Dyer and he introduced proof to the effect that E. E. Dyer proposed to him that if he would occupy the whole 320 acres as his (E. E. Dyer’s) tenant, and hold possession during the period of statutory limitation, the s-aid E. E. Dyer would make hkn a deed conveying this 120 acres. He testified that pursuant to that agreement he took possession of ■all the lands and held possession up to the time of the death of E. E. Dyer, .and made valuable improvements. The testimony adduced by appellees tends to contradict that of appellant and to show that appellant occupied the lands - solely as the tenant of E. E. Dyer. The conflict in the testimony is so sharp that we think that it can not be said that the finding of the chancellor on the facts is against the- preponderance of the testimony.
Learned -counsel for appellant. are correct in their contention as to the law of the case, that if appellant occupied the land under a parol contract such as he claims to have made with E. E. Dyer, the owner, and that he made valuable improvements, the case would not fall within the statute- of frauds. However, the facts as found by the chancellor, are that there was no agreement for conveyance of the property as contended by appellant, and also that the improvements made by him are so slight in value, as compared with the rental value of the land during the time he occupied it, that the case is not taken out of the operation of the statute of frauds. There is much proof introduced by appellant of persuasive force tending to show that he is right in his contention that his brother, E. E. Dyer, agreed to convey the land to him; but upon the whole, the testimony is not altogether satisfactory, and is not clear enough to justify us in overturning the finding of the chancellor. This is true, also, as to the value of the improvements made; for if the improvements were of little consequence, compared with the amount of rents he received on the place, that would not take the case out of the operation of the statute. Young v. Crawford, 82 Ark. 33.
'Chancery cases are tried here de novo, hut the established rule of practice is that the findings of the chancellor are of such persuasive force upon evenly balanced testimony that a decree will-not be reversed; .and it1 not appearing to ns in tbis case that the decree -is against the preponderance of the evidence, it follows that the same must be affirmed, and it is so ordered. | [
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McCulloch, C. J.
Appellant, Dominic Brignardello, an Italian by birtb, came to this country many years ago and left his wife and child in his native land. He settled in Memphis, Tennessee, and lived there several years and then moved to the city of Hot Springs, in this State, where he still resides. He became the owner of certain lots of real estate in Hot Springs, on which a house is situated, and he mortgaged the property to appellee, Cooper, to secure payment of a debt for borrowed money. His wife did not join in the conveyance. She had not come to this country at that time, and, according to the testimony of appellee and his witnesses, said appellant held himself out as an unmarried man and obtained the loan from appellee on the faith of such representation. Appellee instituted an action against said appellant in the chancery court of Garland County to foreclose the mortgage, and was met with the plea that said appellant was a married man, that the property embraced in the mortgage was his homestead and that the mortgage is void on account of the fact that the wife of the mortgagor had not joined in the execution of the instrument. Issue was joined on that plea, evidence was adduced, and the court rendered a decree in favor of appellee, foreclosing the mortgage. There was no appeal from that decree. Subsequently, appellants, Dominic Brignardello, and his wife, Mariah Brignardello, instituted this proceeding in the nature of a bill of review, praying that the decree of foreclosure be set aside and the mortgage declared to be void on the same ground which had been pleaded in the former suit, namely, that the mortgaged property constituted the homestead of the mortgagor and that the wife had not joined in the execution of the instrument. The court sustained a demurrer to the bill and rendered a decree dismissing it.
If the wife is entitled to relief, under the facts stated, she can have that relief in an independent suit and this proceeding can be so treated. It is therefore unnecessary to decide whether or not she can attack the decree by proceedings in the nature of a bill of review.
The wife is not a necessary party to a suit to foreclose a mortgage executed by the husband, save for the purpose of barring her inchoate right of dower. To hold otherwise would be to say that the wife’s interest in the homestead is direct and not one derived from the fact that it is the homestead of the husband as the head of the family. The homestead right depends upon, the impressment as such and the continued occupancy thereof. He may abandon it -and thus destroy the homestead right. Pipkin v. Williams, 57 Ark. 242; Sidway v. Lawson, 58 Ark. 117; Farmers Building & Loan Association v. Jones, 68 Ark. 76; Mason v. Dierks Lbr. & Coal Co., 94 Ark. 107; Stewart v. Pritchard, 101 Ark. 101; Brown v. Brown, 104 Ark. 313; Newman v. Jacobson, 108 Ark. 297.
We have a statute here which provides that “a debtor’s right of homestead shall not be lost or forfeited by his omission to select and claim it as exempt before the sale thereof on -execution * * * but he may * * * set up his right of homestead when suit is brought -against' him for possession, and if the husband neglects or refuses to make such claim his wife may intervene and -set it up; provided, if the debtor does not reside on his homestead, and is the owner of more land than he is entitled to hold as a homestead, he or his wife, as the case may be, shall select the same before sale.” Kirby’s Digest, § 3902. Now, this statute, so far as its terms are- expressed, applies to- sales of the homestead under execution, and it is only by analogy that it can be applied to a suit in equity to foreclose a mortgage. It will be seen that the statute gives the wife the right to select and claim the homestead only in case the husband “neglects or refuses to make such claim,” and it -can have no analogous application except in those eases. So, if the wife has the right to intervene in a foreclosure suit for the purpose of claiming the homestead, it is only where thé husband fails to claim it, and such is not the case here. The husband did set up the claim to the homestead and his claim proved ineffectual. He failed to sue cessfully maintain Ms claim, and there has been an adjudication against him which bars the right of the wife to assert a similar claim. Farmers Building & Loan Association v. Jones, supra.
In the case just cited, which was a suit against the husband and wife to foreclose a mortgage, in the execution of wMoh the wife had not joined, the court said: “While the act of March 18, 1887, is -a limitation upon the right of the husband to:convey his homestead, except by the consent of Ms wife, it'does not in any manner affect or restrict his right of abandonment. This right he has by virtue of his marital and parental authority, and when he has chosen to exercise it, as he did here, he renders the property which had formerly been Ms homestead the proper subject of alienation without his wife’s concurrence. * * * He could not be heard after the execution of the mortgage; under the circumstances, to say that he had not abandoned his homestead; and if there was an abandonment by him, Ms wife is bound by it.” It follows, therefore, that a decree against the husband, which adjudicated all of the questions 'relating to the right to claim the homestead necessarily bound the wife to the extent of her right to claim the homestead.
Appellants rely on the decision in Montgomery v. Dane, 81 Ark. 154, as sustaimng their contention, but that case involved the right of a purchaser at execution sale. The husband failed to claim the homestead and the wife, being still in possession, was accorded the privilege of asserting the‘claim to the homestead and protecting it from the effect of the sale. . The decisión followed the case of Newton v. Russian, 74 Ark. 88, and other oases holding that where the wife continued to occupy the homestead there was a presumption that the husband, who had deserted his family, would return to his duty, and that under those circumstances there was, in law, no abandonment of the homestead. Counsel also rely on the case of Mason v. Dierks Lbr. & Coal Co., supra, but in that case there had been no assertion of the homestead claim by the husband and the wife was permitted to make the claim after Ms death. It was not decided in that case that the hnsiband had in fact abandoned the homestead; and the debt being void as to the wife, she was permitted to assert her homestead claim after the hnsiband’s death.
Our conclusion in this case, therefore, is that the wife is bound by the adjudication against her husband and can not reassert the homestead claim. The decree does not, of course, bar ber dower right. Affirmed.
Hart and Kirby, JJ., dissent. | [
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