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Griffin Smith, C. J.
Appellee bad, for five years, occupied a building in tlie city of Van Burén, dimensions of wbicb were 26 by 70 feet. There were two partitions. In October, 1937, appellee purchased the property. He operated a liquor store, beauty shop, and barber shop. Complaint was filed June 15, 1938, with trial December 6 of the same year.
Appellant’s railway was constructed in 1882. Between the railway and a street crossing there are buildings other than appellee’s.
Averment of the complaint is that appellee’s premises were overflowed because of the negligence of appellants; that at such flood times appellee’s stock of whisky was worth $4,000; that water came into the building to a depth of three or four inches, and that on two occasions 150 cases of whisky were stored on the floor, with resulting water damage. The first overflow affecting the whisky occcurred in 1936. Later, similar losses were occasioned, the contention being that' in each instance 100 cases were damaged, and that in addition, repairs to the building were necessitated. Appellee’s testimony was that $60 was spent repairing the walls, and that it cost $300 to repaper. New linoleum was put down, but another flood washed cinders under it.
Appellee insists he had a loss of $5 the case on the damaged whisky; that the market price before flooding occurred was $24, and that it was $19 thereafter.
Specifically, damages to the building were: Plaster came off the walls from a point touching the floor and extending up three or four feet. Before inundation the building was worth $1,500; thereafter (and presumably prior to the time .repairs were made), its market value was, $1,000.
On the question of damages to the whisky, appellee testified: “I carry different kinds of whisky that cost me from $15 to $18, and I get $24 a case for it.” He admitted the revenue stamps were not destroyed; that damage was to the containers and labels, and that the whisky was sold to people who, in respect of the labels and cartons, “didn’t care.”
A contractor of Van Burén, who examined the Spradley building in June (1938), testified as to cost of entirely replacing the floor. He said: “The entire damaged portion pointed out to me would cost $380.” Depreciation was 70 per cent., leaving the net damage $117. Papering, plastering, etc., when added to the flooring costs, would bring the total to $528. If depreciation of 70 per cent, were allowed, the actual damage was $256.
Appellee contends flooding was caused by the. railroad company’s act in constructing a “stringer” about eight inches thick and four inches wide. There were two of these timbers “. . . and that wall is about. 60 or 70 feet long.” This structure, he said, was “right on the railroad track — as near the track as it can be and still be in the clear. It looks like a sill from a box car. It is within three or four feet of the end of the ties, between my building and the track, and the top is level with the base of the track. Some addition was made to the wall in June of this year — an addition to what you call the south end of the wall. There was a little culvert built under the track, about three inches deep. They had to build that to carry the water under the track. It is just level with the ties. That little culvert forces the water in under there, but that wouldn’t take care of the water. You can see the high water mark on the wall and it is four inches higher than that.”
In the language of the complaint, the act of negligence alleged is that appellants “. . . erected and maintained a certain wall and abutment immediately north of and adjacent to plaintiff’s said property . . .”
Appellants have pleaded the three-year statute of limitation. It is shown that the structure of which complaint is made was built March 18 or 19, 1935; and, the complaint not having been filed until June 15, 1938, approximately three years and three months intervened.
It is uncontradicted that the track and embankment upon which it rests have not been changed materially since 1882, except in the matter of laying the stringer. •Immediately north is Log Town Hill. Appellee’s building is on the right-of-way line — according to the testimony of appellants’ engineer Collett, 25 feet from the track, one corner being slightly nearer the track than is the other. The right-of-way touches Spradley’s property at the northeast corner. General slope of the ground is to the south and west. Fayetteville street slopes south, with a six pel cent, grade. It is paved with concrete and has concrete curbs. During rainy periods water comes down the gutter in Fayetteville street and at times col leots at a catch basin on the north side of Spencer track. Elevation of the land north of Fayetteville street is greater than that of the railway. Natural drainage from that area is to the south. The amount of water collected is occasionally too great for the catch basin’s capacity. During unusual rains water comes down Fayetteville street very rapidly, overflows at the catch basin, then goes over the tracks on to Main street. The rail flanges hold about three inches of the flood. There is a slope toward Spradley’s building. The buildings between Spradley’s property and Fayetteville street are higher, and drainage is gradually in appellee’s direction.
After describing construction of the stringer, the witness Collett said: “At the west end a drain is under the ties to take care of water collected on the north side of the main track, and it empties into Knox street on the north side. The timber (stringer) is about even with the northeast corner of Spradley’s building . . . Spradley has a down spout on his building and retaining wall paved with brick 14 inches from the back end of his building. . . . Spradley’s drain is a 15-inch gutter, 14 inches wide and 18 inches deep, with 5-inch drain from it. Water from down spout of his building flows in the gutter, which is 14 x 18, supposed to be connected with the sewer, but the spout is broken in two. The pipe starts down, then there is a space where there is no pipe, then it starts again. Water flows down in this 14-inch gutter ... the gutter at the back of his building was filled with debris. The drain at the bottom of the gutter had been stopped up.
‘ ‘ The drain under the track could not be higher than the ties, and a board was put there while water was running to force the water through the tracks over on the other side. . . . The steep grade extends back 2,500 feet from the track. The area of ground drained naturally to this stringer back of the building is 3,406 square feet. The opening through the drain at the west end of the stringer under the track is 9 x 10 inches. . . . It carries 90 square inches, and will take care of an area of two times the [amount of water discharged against the stringer].”
From this testimony it will be seen that appellee’s contention is that construction of the stringer system in 1935 had the effect of interrupting normal flow of the water, with the result that a part of the impounded flow-age was liberated in an unnatural manner, accelerating the normal escapement, with consequent damages.
The law in respect of the statute of limitations is-stated in Chicago, Rock Island & Pacific Railway Co. v. Humphreys, 107 Ark. 330, 155 S. W. 127, L. R. A. 1916E, 962, as follows:
“Permanency of the structure or obstruction impeding the flow of water is not the controlling question. Indeed, the question cannot arise unless the obstruction is of a permanent nature, but its permanency does not of itself determine whether the damages, which result from its' erection, are original or recuring. If it is of such a construction as that damage must necessarily result, and the certainty, nature and extent of this damage may be reasonably ascertained and estimated at the time of its construction, then the damage is original and there can be but a single recovery and the statute of limitation against such cause of action is set in motion on the completion of the obstruction. If it is known merely -that damage is probable, or, that even though some damage is certain, the nature and the extent of that damage cannot be reasonably known and fairly estimated, but would be only speculative and conjectural, then the statute of limitation is not set in motion until the injury occurs, and there may be as many successive recoveries as there are injuries.”
. Tested by this rule, can we say that appellee, when the stringer was erected, was charged with knowledge of its permanent nature and with notice of the extent to which injuries would ensue? Could he reasonably prejudge the injury which would result as a natural consequence? We think there must be a negative answer to the question.
Appellee, of course, knew the property was subject to overflow, for he testified: “ [Flooding] has been going on ever since I have had a liquor store — as far as that is concerned, ever since I went in there.” He had already testified to having been there five years, or since December, 1933. The testimony of Eugene Leigh that the floor was fifteen years old, that it had settled and was “sagging,” indicating that the joists were rotting, is undisputed.
The cross-examination of appellants’ engineer is sufficient to show that the damage incident to construction of the stringer was not original; that consequences were not predictable in March, 1935, and that overflows have been recurring. The engineer testified it could not be told [at the time the structure was placed] that its erection would damage Spradley’s property “any more than it might have been [damaged] in the past.” There is this statement: “I would not think, as an engineer familiar with conditions and rainfall and construction of this wall, that it might cause damage to the property. ’ ’
If the engineer could not predict consequences, appellee will not be held to a higher degree of perspective.
The matter of greatest difficulty is determination of the amount of damages. The whisky, appellee testified, was sold to out-of-state people. The following statements appear in the examination of appellee:
“Q. What kind of liquor do you carry — this $24 whisky? A. I carry different kinds of whisky that cost me from $15 to $18 and I get $24 a case for it.
“Q. You sold this liquor for $19 a case? A. Yes, sir.”
Considering only the cost price, and the price realized for the so-called “damaged” whisky, there was in reality a profit rather than a loss. All of it was sold for $19 a case. Some cost $15, on which there was a profit of $4. Other brands cost $18, on which the profit was $1. Literally construed, appellee’s testimony is to the effect that he sold for $24 whisky that cost $15. His recovery of $1,000 on the flooded cases was predicated upon anticipated or expectant profits.
The authorities generally recognize that a recovery will lie for profits prevented through breach of contract, or by reason of a defendant’s tortious acts. There is the condition, however, that the profits claimed to have been lost would reasonably have been realized except for the defendant’s wrongful conduct. The views expressed in earlier American and English decisions, excluding profits altogether as an element of recoverable damages in such actions, are no longer followed. 15 American Jurisprudence, § 149. The same authority (§ 150) says that to warrant a recovery in such circumstances, profits must be capable of proof with reasonable certainty, and no recovery can be had for loss of profits which are uncertain, contingent, conjectural, or speculative. In Pollock v. Gantt, 69 Ala. 373, 44 Am. Rep. 519; Jones v. Call, 96 N. C. 337, 2 S. E. 647, 60 Am. Rep. 416; Houston & T. C. R. Co. v. Hill, 63 Tex. 381, 51 Am. Rep. 642, it was held that estimated profits of [the businesses in question] were too speculative and remote.
In the American Law institute’s Restatement of the Law of Contracts (§ 331) it is said that damages are recoverable for profits prevented by the breach of a contract only to the extent that the evidence affords a sufficient basis for estimating their amount with reasonable certainty.”
In an opinion of this court — Western Union Telegraph Co. v. Caldwell, 133 Ark. 184, 202 S. W. 232, L. R. A. 1918D, 121 — it was said: “Profits to be recovered must be such as would have accrued and grown out of the contract itself as the direct and immediate result of its fulfillment. Profits cannot be recovered as damages if they result from an independent and collateral under-tailing, although entered into on the faith of the principal contract.” The controversy in the Caldwell Case arose through failure to deliver a telegram.
In the case at bar we have the naked assertion of appellee that the whisky was worth $24 before damage occurred, and that he sold it for $19. His unsupported opinion that it was “worth” $24 falls short of being substantial proof that if the particular whisky had not been damaged he could have sold it for the larger price. True, an inference arises from the testimony, but in computing prospective profits, something more than an inference is necessary. Appellee treats as one and the same commodity liquor costing $15 and that which cost $18.
We think the proof is insufficient on this allegation, and hold that appellee has failed to establish the alleged loss of profit, or any part of it.
As to damages to appellee’s building: There is sufficient evidence to warrant some recovery. Here, again, we have the unsupported declaration of appellee that damages were $500 because the building was worth $1,500 before being flooded, and $1,000 thereafter. It must be remembered, however, that it was flooded many times, and appellee is significantly silent as to when the damages occurred for which compensation is asked. There is an assertion he spent $60 repairing the walls, and $300 repapering, but nothing from this witness as to depreciation.
Appellee says the witness for appellants, after allowing for depreciation, placed the damage at $256 “. . . for necessary repairs caused by the wader.” We do not understand this to be the effect of the testimony referred to. The statement was that the floor had been in place 15 years, and that it was sunk, with rotting sills, etc. In view of appellee’s admissions that water had been causing trouble for five years, it is necessary to attribute a part of the damage to overflows which occurred prior to March, 1935.
The jury speculated in arriving at its verdict, and the result cannot be fully justified upon any evidence introduced. The nearest approach to reasonable accuracy appears in the testimony of the contractor. He gave detailed estimates on replacements, then estimated depreciation. We are not sure his conclusions in respect of depreciation are correct, and will not bind appellee thereby.
Judgment for loss of prospective profits on the whisky is reversed. The cause is dismissed.
If, within 15 days, appellee shall enter a remittitur whereby judgment to compensate damages to the building is reduced to $256, it will be affirmed for such sum. Otherwise, the judgment will be reversed and the cause remanded with directions to retry as to the issue of real property damages. | [
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Griffin Smith, C. J.
Because a bus operated by Missouri Pacific Transportation Company was rendered immobile when a drive shaft broke, the agent in charge chartered taxicabs at Clarksville to carry passengers to Russellville. In one of the conveyances so engaged were Mrs. Fannie Pat Simon, Mrs. Etta Erwin, Mrs. W. M. Adcock and C. G. Bell. This cab collided in Russellville with an automobile driven by Mrs. John Leonard, one of the appellants herein.
' There were jury verdicts and judgments as follows : Mrs. Erwin and Mrs. Adcock, $25,000 each; Bell, $6,000; Mrs. Simon, $1,250; W. M. Adcock (for expenses and loss of his wife’s companionship), $1,000.
The question of negligence has been concluded by the .jury’s verdict, although reasonable minds might sharply differ with that determination. There'was substantial evidence in support of the contention that Mrs. Leonard was at fault, although testimony opposing this allegation is likewise substantial. In these circumstances it was for the jury to decide. No serious objections are urged to the instructions, to admissibility of evidence, or to conduct of the trial.
The principal relief asked by appellants — in fact, the only tenable ground of attach — is that the evidence does not support verdicts amounting in the aggregate to $58,250. We have concluded that the two smaller judgments, one for $1,250 in favor of Mrs. Simon, and one for $1,000 in favor of W. M. Adcock, may be affirmed, and it is so ordered.
The situation is different in respect of the other three judgments.
Mrs. W. M. Adcock. — Mrs. Adcock, recipient of a verdict and judgment for $25,000, was in the hospital at Russellville 26 days, attended by Dr. Roy I. Millard. She testified: “I was hurt down here (indicating). From here to here (indicating) hurt, and I was bruised all the way up. My chest was hurt and through here (indicating) and under the shoulders and the back of my neck and head felt all battered up, but it cleared away; but it was after so long — about 20 days before it quit hurting.”
The following examination of Mrs. Adcock is of importance:
“Q. Where all do you suffer, and how do you suffer at this time from the injuries you received? A. My knee was hurt and it is weak and if I get it bent back, you see. When I wake up at night it is agony to straighten out. Q. What about the scars? A. I don’t know what the doctor will call it. When I was hurt it was black on the left hip down to below the knee. The veins are still black. The black places, they cleared away. I still have pains in my chest and neck and head — all the time. I don’t hear as well as before. About an hour after I got in the hospital I couldn’t hear hardly anything. I asked a nurse what was the matter, and she said, ‘O, I guess it was that shot.’ I.had never taken [a hypodermic injection] that did me that way, but [the deafness] never cleared away. It is better, but not as good as it was. I am bothered about going to sleep and wake up too early. I don’t like [to take-sleeping potions] for fear of forming a habit.”
On page 17 of appellees ’ brief the following appears in connection with the examination of Mrs. Adcock:
“Q. Did you [prior to the collision] have any kind of physical disability that you know about? A. I may have had some, but I was doing fine.” Mrs. Adcock’s counsel then asked: “Were you suffering any way from a disability of any kind?” There was a negative answer.
Mrs. Adcock, 58 years of age, is the wife of a minister. Her duties were such as are ordinarily discharged by a minister’s wife. This question was asked by her counsel: “Have you been able to discharge those things, carry on church work and household duties since [the injuries were inflicted?”] Her answer was: “Yes, sir.” Pursuing the investigation on this phase of disability, counsel then asked: “You say you have been: you mean all the time since November 1 ?” The answer was: “No, sir: I haven’t done anything but walk around in the sun a little since. Before the collision I didn’t have any hired hand and did all the work. . Since being injured I have not been at church. I invited the women to bring the missionary society to the home; then I didn’t sleep until after three o’clock in the morning, and decided I would not do any more of that ’till I got well. ’ ’
Further describing her disability, Mrs. Adcock said: “My back, that hurts sometimes bad and sometimes not so bad. Sometimes I wake up of a morning and if I move my head off the pillow sharp pains hit ine. I have to stay in bed all day, you know. Sometimes in the day it will clear up. ... I can get up and go do something— look out and see my chickens — then I have to go back and lie on the bed or in a reclining chair. That will rest it then. If I get up — -if I stay up long — then I have to rest a long time. Then I take spells every once in a while. I can’t move any way — just such agonizing pains I can’t move any way on the pillow. The doctor, gives me ‘pain dine, ’ or something of that kind. That condition has existed until now [but] is getting better. ”
Dr. J. L. Post, of Van Burén, testifying at the instance of plaintiffs, had examined Mrs. Adcock, but did not treat her. Her history disclosed an old' operation; that she had borne four children; weighed 155 pounds. His opinion was that the patient had only a hazy recollection of the collision. — “She gives a history of headache of the occipital- region — the region back of the head— which is very constant and distressing; complains of pressure in the head with pain in the scalp- and back of neck. She also complains of dizziness, insomnia, photophobia, noises in ears, nausea, and vomiting; loss of appetite, inability to work. She does have lucid moments. ... I find pain on pressure over the region of the left shoulder with a rupture of the pleural sac above the left clavicle or collar bone. I find evidences of injury to the left knee. . . . I find that she is confused and flighty, with memory defects, which are permanent. She is suffering a traumatic encephalitis, which may be for weeks, or months, or years. She is very emotional, with intellectual disturbances and memory defects which remain as results. She laughs at things that should be serious. . . . She has a contusion or infection of the whole part of the brain. Encephalitis of the brain is inflammation of the brain substance itself. . . . She may go on for several years in this same condition, but she will gradually get worse and finally die. There is no chance for improvement in the future.”
Dr. Millard testified that “outside- of the nervous condition there wasn’t anything that would indicate Mrs. Adcock would not completely recover at the time she left the hospital in Russellville. ”
Dr. S. C. Fulmer, of Little Rock, examined Mrs. Adcock February 17,1939 — three and a half months after the injuries were inflicted. (Trial was March 27, 1939). The question'was: “Dr. Fulmer, Mrs. Adcock claims now that she is suffering from a continual nervous condition that at times is irregular; [that] she had a cloudy condition of the mind and is unable to remember things. Do you find from your examination anything which would indicate (if such is the present condition) [that] it would be a result of an injury sustained by her in this accident?” The answer was that he did not.
Dr. Millard testified that Mrs. Adcock, when brought to the hospital, was apparently suffering more than the others. She complained of an injury to her back. An X-ray was negative in this respect. She also complained of her left shbulder. Later Dr. Millard said: “Mrs. Adcock was suffering from slight shock and soreness in both elbows and the right ankle.”
A hypothetical question was addressed to Dr. Millard. It assumed that since -being injured Mrs. Adcock had been unable to do her housework; that she was nervous and forgetful, and had not been in that condition prior to the injuries; that “she can’t remember things at all and when serious things are brought up or asked about, she laughs silly and says something important, and- is nervous all the time. ’ ’ The doctor was asked to leave out of consideration personal knowledge acquired as a result of his examinations of and attentions to Mrs. Adcock; to assume that the information requested was applicable to a person in Mrs. Adcock’s situation — to one in mental and physical conditions similar to those attributes as they applied to Mrs. Adcock prior to the collision — and to state whether, in his opinion, the type of injury or injuries sustained “would cause that sort of condition to happen.” There was an affirmative answer.
Dr. Post testified largely from objective symptoms and from a history of the -case supplied him by the patient and others. The doctor gave it as his opinion that Mrs. Adcock had suffered a fracture to the petrous pyramid or arch under the brain. This conclusion, like others, was based entirely upon symptoms and the history. The history included Mrs. Adcock’s description of blood draining into the throat: Dr. Post conceded there was no way of ascertaining whether the blood was from the interior of the nose or from the back part of the nasal cavity. There was no attempt to confirm the objective symptoms or to connect them with the history through use of the X-ray.
We take judicial notice of the fact that in most cases where bones have been broken or fractured, roentgenology is highly effective as a means of ascertaining the true condition, although it is not an infallible science because of the fallibility of human agencies which must interpret results.
Mrs. Adcock’s medical and hospital bills were $237.50. In 1920 she spent two weeks in a Russellville hospital receiving treatment for a fibriod tumor. Later, the tumor was removed in Memphis by operation. She had undergone an appendectomy. Her tonsils, embedded, were removed in 1926. The question was asked: “How long prior to the accident had it been since you were treated by a physician? A. I don’t remember right now. I know the thing 1 have been treated for since I was in the hospital for an operation. I have habitual, chronic sick headaches.” She ascribed the headaches to gastric acidity.
The award of $1,000 in favor of W. M. Adcock was to compensate loss, past and prospective, of his wife’s companionship and services, and for medical expenses and hospitalization incurred to the date of the trial, and to be incurred in the future. It is significant that, although $5,000 Avas asked in the complaint for these elements of damage, the jury saw fit to reduce the demand by four-fifths. It may well be assumed that the .jury did not believe the husband would long be denied the normal companionship of his wife, nor that other expenses of inordinate proportions would arise in consequence of Mrs. Adcock’s condition. The finding that the injured party should be paid $25,000 was to compensate pain and suffering and the slight loss of earning power as disclosed by the record. The two findings are so obviously inconsistent that we must determine, as a matter of law, whether the evidence sustained the verdict for so large an amount as that recovered by Mrs. Adcock. Her life expectancy was 15.39 years.
In determining whether a judgment is, or is not, excessive, this court is faced with many difficulties. The record is presented to us in cold type, unless there is oral argument. The jury has advantages we do not possess ill that it sees and hears the witnesses, studies their demeanor, their expressions, and measures the degree of interest they may (as is the case at time) have in the subject-matter of litigation, and in the outcome. The mere fact that a judgment seems larg'e does not, alone, warrant its reduction. There must be other’ considerations. But, as was said byi Chief Justice English in an opinion of the court written more than.fifty years ago (Little Rock and Fort Smith Railway Company v. Barker and Wife, 39 Ark. 491) . . a jury is not left without restraint in the matter of assessing damages ... in any . . . case. If the damages assessed are so enormous as to shock the sense of justice, and to indicate that the verdict is the result of passion or prejudice, the trial court may set it aside, and if he refuse, this court, on appeal or writ of error, may do so. ’ ’
In Interurban Railway Company v. Trainer, 150 Ark. 19, 233 S. W. 816, (opinion by Mr. Justice Wood) the court held that it ‘ ‘ could find no basis in reason ’ ’ to sustain a judgment for $5,000. There is this expression: “The judgment, therefore, will be modified by deducting therefrom $2,500. As thus modified, it is affirmed.”
Under similar authority this court, in an opinion written by Mr. Justice Hart (The Railway Ice Company v. Howell, 117 Ark. 198, 174 S. W. 241), modified a judgment of $14,355.75 rendered on a .jury’s verdict compensating a widow for the death of her husband. The language used in that case was: “Therefore, the judgment will be remitted down to $12,000, and for that amount it will be affirmed. ’ ’
In Temple Cotton Oil Company v. Holliday, 185 Ark. 1190, 47 S. W. 2d 4, judgment on a verdict for $23,000 for the death of a foreman who suffered from a mangled arm was affirmed., On rehearing (March 14, 1932) it was reduced to $12,500 for the widow and kin and $5,000 for the estate.
A judgment for $15,000 against Temple 'Cotton Oil Company in favor of the plaintiff Brown (192 Ark. 877, 96 S. W. 2d 401) was reduced-to $7,500. Brown, an employee, sued for personal injuries.
The facts in St. Louis, I. M. & S. Ry. Co. v. Hesterly, 98 Ark. 240, 135 S. W. 874, were that the decedent’s legs were both mashed off to the knees by being run over 'by a train. He was treated by a physician for an hour and a half an-d lived for five hours thereafter, suffering great pain part of the time. He also suffered great mental anguish in contemplation of death and continually begged that prayers be offered in his behalf. This court held that judgment on a verdict for $10,000 for pain and mental anguish was excessive, requiring reversal unless reduced by one-half. The Arkansas decision was reversed in 1913, 228 U. S. 702, 33 S. Ct. 703, 57 L. Ed. 1031.
In respect of an award of $7,500 to compensate damages for death, the deceased having .been 29 years of age when killed and having an expectancy of 35 years (the pecuniary loss being $540 per year), it was held that the judgment should be reduced to $5,692.68. — St. Louis, I. M. & S. Ry. Co. v. Robbins, 57 Ark. 377, 21 S, W. 886.
No rule has been established — and in the nature of things none can be — for determining what compensation should be paid for loss of life, for pain and suffering, for loss or decrease of earning power, for mental anguish accompanied by physical injury, for loss of companionship, and for the various elements entering into damage actions.
The late Mr. Justice Butler, in Missouri & North Arkansas Railroad Company v. Robinson, 188 Ark. 334, 65 S. W. 2d 546, reasoned for the court as follows: “So far as we have been able to ascertain from the record before us it is uncertain how frequently Cunningham [a brakeman who lingered two hours before dying of injuries received when he fell from a moving train and the wheels of the tender and engine passed across his legs, severing them, one above and one below the knee] worked, or for what length of time over any given period. Therefore, any verdict based on this ground must be wholly conjectural and speculative. Ordinary experience and knowledge of human affairs show that, when one has reached the age of the deceased, his opportunities and powers for earning rapidly lessen, and, although Cunningham’s life expectancy was 13 years, it is wholly irrational to believe that during these years he would have earned a wage equal to that of his vigorous manhood.” The verdict was for $5,000 for physical pain and mental anguish for benefit of the estate, and $10,000 as pecuniary loss to the widow. In reducing the judgment Judge Butler said:
“We are of the opinion, therefore, that the amount of the verdict, in any view of the evidence, would not be justified for a sum greater than $2,500. Accordingly, the .judgment for the benefit of the widow will be reduced to that sum, and judgment entered here therefor. In all other respects the judgment is correct, and it is affirmed.”
The other extreme is shown in Missouri Pacific Railroad Company v. Bushey, 180 Ark. 19, 20 S. W. 2d 614, and in Southwestern Bell Telephone Company v. Balesh, 189 Ark. 1085, 76 S. W. 2d 291. In the Bushey Case $48,500 for the death of a 53-year-old locomotive engineer was held'not excessive, while in the Balesh Case $50,000 to the widow and children of a 51'-year-old man was upheld.
In reading our own cases, many of which are not cited in this opinion (and a number of which might be shown as authority either for or against reducing judgments), the conclusion is inescapable that factors other than mere physical or mental injuries and loss of earning capacity and the elements usually enumerated are taken into consideration where the facts as set out in the opinions are seemingly similar. ' Otherwise, such divergent views would not have been expressed.
We approach the subject reluctantly because of a double responsibility: first, the responsibility of modifying a jury’s verdict; and, second, that of substituting our own judgment for the judgment of the triers .of facts and of dispensing justice within the law in so doing.
However, when our views are firmly fixed in respect of a miscalculation by jurors, or of a mistake that has been made through sympathy, prejudice, or partiality, and the record sustains our conclusions that the extrinsic elements or considerations referred to have entered into the result, it then becomes our solemn.duty either to reverse and remand for another trial, or to give judgment here for a sum we think justified, and to eliminate any excess that is not sustained by substantial evidence.
The rule is stated in Corpus Juris Secundum, v. 5, § 1650, as follows: “A finding of value or the amount of damages is so much a matter within the exclusive province of the jury that it will ordinarily not be disturbed by the reviewing court where the issue has been fairly submitted under proper instructions, unless palpably without support in the evidence presented at the trial, unless the jury have departed for the same reason from the legal measure of damages, or unless the verdict is so palpably excessive or grossly inadequate as to indicate bias, passion, prejudice, corruption, outside influence, or mistake, or shock the conscience or sense of justice, or unless manifest error therein otherwise appears. . . . However, (p. 646) it has been held that an appellate court may or must interfere if the verdict is not reasonably within the range of the evidence, or where there has been an abuse of discretion, or if it appears to be the result of passion and prejudice. . . . Since the duty of guarding against excessive verdicts (§ 1651 a) rests to a great extent on the trial judge, who will presumably not allow excessive verdicts to stand, the authority vested in appellate courts to disturb the verdict of the jury on the ground of excessive damages is one which should be exercised with great caution and discretion. . . .
“Notwithstanding the general rule heretofore stated (§ 1651 b), reviewing courts generally have power to set aside verdicts because excessive, and that too, although the trial court has refused to set aside the verdict where it is clear that the latter court has abused the discretion vested in it. A verdict will be set aside by an appellate court as excessive where there is no evidence on- which the amount allowed could properly have been awarded; where the verdict must of necessity be for a smaller sum than that awarded; where the testimony most favorable to the successful party will not sustain the inference of fact on which the damages are estimated; where the amount awarded is so excessive as to lead to the conclusion that the verdict was the result of passion, prejudice, or- corruption or other misconduct, or of some error or mistake of principle, or to warrant conclusion that the jury were not governed by the evidence. . . .”
As to Mrs. Adcock’s injuries and their consequences, the most favorable testimony in her behalf is that given by Dr. Post, who admittedly had not been her physician, and who, presumably, was employed by the plaintiff to make an examination. His statements are inconsistent with this appellee’s own testimony. It must be inferred/ that she appeared as a witness during a lucid interval, even if we should say (which we do not) that the evidence is sufficient to warrant the jury in finding that her memory had been disturbed.
In any view that may be taken in respect of all of the evidence — from which the term “substantial” must be drawn — -it is not sufficient to warrant a judgment of $25,-000. Necessary factors of computation were not taken into consideration by the jury. For example, a present payment of $25,000 compounded annually at 6 per cent, interest is worth $61,315.93 at the expiration of 15.39 years — Mrs. Adcock’s life expectancy.
We have concluded that $15,000 is the most the evidence will warrant. This sum, if paid presently and put at interest during the period in question, (in the manner mentioned in the preceding paragraph) would produce $36,789.56.
Mrs. Etta Erwin. — Mrs. Erwin, a resident of Florida, was awarded $25,000. She had been a teacher of home economics in high school and junior high school. The left side of her mouth was paralyzed by the injury. She testified: “My glasses were broken all to pieces; my eyes were black and closed for almost a week. I received the Tick’ on the right side, of my head, up in my hair. There was a lump, and all across my nose was bruised. This bridge across here (indicating) was jammed, and there was a bruise up here (indicating) until my temple was as big as a goose egg.”
Mrs. Erwin further testified that she was unable to read until she got her glasses; that her physician advised that she refrain from reading too much, and — “I can’t read but a little while at a time because my eye feels like it is going to pop out, and they have to keep a pad on this eye” (indicating).
She was hit behind the ear — “my left ear across that mastoid bone, and my ear has never stopped hurting me since — only when I take something — and that only eases it for a little while. My ribs were bruised and top of that breast back over here and on the right arm and shoulder; and on the left arm and shoulder all over there. There are two big marks across there half way between my elbow, and there were some ridges across there, and I. knew they were broken. For two months I could hardly raise my arm at all.” “Q. Do you use your hand now? A. It hurts me all through the shoulder and back here. ’ ’
Continuing, the witness described what she termed an injury to her right breast and under her shoulder blades. She was unable to raise her head for several weeks. — “I was on my back and had to breathe through my mouth and pains would hit me in the head, and I had to take medicine to rest; and I had my left hip bruised. I am bruised all on the back and on the side of the hip, and here about this muscle.” Other injuries of like nature were described.
Mrs. Erwin insisted that she could not remember anything; that she would put her glasses down, and couldn’t find them; also, that she couldn’t get around “much, either.”
She complained of a growth in her breast, noticed for the first time the last of November or the first of December.
Dr. Post examined Mrs. Erwin the day preceding trial of the suit. After describing the injuries as recounted to him by the patient and mentioning evidences still observable, he said: “I found a lump or enlargement in the right breast which she said was not there before the accident. There is no pain in this enlargement and there are no enlarged lymphatic glands in the axilla or any of the surrounding tissues. . . . This enlargement is a benign tumor of a lobe of the milk gland, which may in time become malignant. . . . She has given birth to five children. . . , She is very pale, which would indicate an anemic condition. ’ ’
The doctor gave it as his professional judgment that the breast ailment was not cancerous; that it could be removed by an operation, .but thought the patient would not be helped by such removal “. . . because of the mental condition: she has been told about the cancer so long that she thinks she has a cancer. She has a cancer complex. ’ ’
Dr. Millard testified: “As for any fracture or anything of that kind, she didn’t have any. From the history, our findings or diagnosis follows: Slight percussion, slight acute brain injury, and slight hemotonia beneath the left eye and left -side of face. Severe contusions of the head, arms, forearms, abdomen, left thigh, knee, and leg. She has apparently recovered from physical ailments except that she still does limp and complains of soreness. We have observed her when she didn’t know we were noticing, and she still limps. However, we are unable to find any evidence of any injury to the bones or .joints. She has hig’h blood pressure. There does seem to be considerable ■ damage to the nervous system from which she has not recovered so far; and if she will, I am unable to say.”
Mrs. Erwin was 61 years old, with a life expectancy of 13.47. She had not been engaged as a teacher since 1936, but prior to that time she had earned $110 per month. Medical and hospital charges were $736.
Our view is that ¿judgment for more than $10,000 would be excessive. The amount awarded ($25,000) at six per cent, compounded annually for 13.47 years would produce $54,826.92. Ten thousand dollars similarly used would yield $21,930.77.
G. G. Bell. — This plaintiff, a farmer, was 72 years of age. His life expectancy was 7.55. The judgment of $6,000 was to compensate for ribs alleged to have been broken. He .claimed to have been unconscious in the hospital for a week following the collision. In addition, he said: “I hurt right down the left hip and back, and right on down this leg to my knee. ’ ’ After the injuries he was unable to stoop and pick up objects from the floor or ground. Has had difficulty in hearing-^*I can’t hear; I don’t know what’s going on here today. ... I can’t sleep nights — I can’t lie on that side.” Developed pneumonia after the collision and nearly died. Has headaches and ringing in the ear — “My head rings all the time and hurts. ’ ’
Dr. A. W. Rye testified he thought the shock to Mr. Bell caused dementia praecox. The same physician admitted he had not made a diagnosis in respect of the disease mentioned, but “. . . that is my judgment, my conviction.”
Dr. Millard testified that while Mr. Bell was in the hospital he had a deep bronchitis and was very sick. The symptoms were such that the patient was first treated for pneumonia.
Dr. Fulmer testified regarding Mr. Bell’s injuries and his condition February‘9,1939, as follows: “His appearance is that of an elderly man with stooped shoulders and showing the appearances of senility. His face is ruddy. The right eyeground shows some sclerosis with a few white patches in the retina. All his teeth are dirty, worn down, and some of them show pus at the gum margins. The throat is negative — no goiter. The chest is emphysematous (barrel-shaped). There is a fatty tumor the size of a small goose egg on his left shoulder. Heart enlarged, rate 96; extra systoles; first sound forceful but roughened; aortic second sound accentuated. Th'ere is a systolic murmur at the apex. Examination of lungs shows scattered moist rales throughout both sides, more at the base, posteriorly. The right side of his chest, posteriorly, is more prominent than the left.” The remainder of the diagnosis is shown in the margin.
The judgment of $6,000 in favor of appellee Bell, computed as a present payment and valued as heretofore set out in respect of the other awards, would yield $9,319.50 in 7.55 years. Three thousand dollars would produce $4,659.75.
We think'the evidence, analyzed in the manner required to give legal effect to the verdicts, does not justify a recovery of more than $3,000.
The judgment for Mrs. Adcock is reduced to $15,000. That for Mrs. Erwin is reduced to $10,000. The Bell judgment is reduced to $3,000. As so reduced, the judgments are affirmed.
Humphreys and Mehaffy, JJ., dissent as to the reductions.
“He complains of severe pain in the region of the left nipple on pressure. This is true only when he has his attention focused on the spot. Pressure here when he is not noticing it does not elicit evidence of pain. There is no deformity in the region complained of. Nothing was made out in the abdomen, except a relaxed condition of the muscles. He has a small, incomplete inguinal hernia, left, which he has had for some years, and wliich is well supported by a truss. All of the arteries in the extremities are pulsating, but he has coarse tremor in his extended fingers not unlike a mild palsy. There is slight edema of both legs over the shin bone. There is no objective evidence of injury or disease in the region of the left hip, where he says the pain is. Lymph glands are not enlarged, but his nerve reflexes are hyperactive, and urinalysis was negative. The rectal examination shows the prostate to be moderately enlarged. During the examination I purposely put an object on the floor for him to stoop over to get. He did this without any evidence of pain in his back. Ears: he can hear moderately loud conversation well. Diagnosis: first, high blood pressure; second, hypertensive heart disease; third, hardening of the arteries, due to high blood pressure; and fourth, hypertrophied prostate.” | [
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McHaney, J.
Appellants are qualified electors in one or more of school districts 11, 13, and 47 of Cleveland county. Desiring to have said districts abolished and consolidated into a new district to be known as Hurricane School District No. 11, they presented their petition to the county court of said county for an order submitting to the qualified electors of the three districts the question of dissolutions and consolidation. Acting on said petition, said court made and entered an order directing the county examiner to publish a notice of the filing of said petition, for the time and in the manner prescribed by law, and the date, time and place of a hearing’ to be had thereon, which notice was given. At the hearing held pursuant to said notice, the court found the petition was signed by the requisite number of electors and made and entered an order submitting the question to the qualified electors at the annual school election to be held on March 18, 1939. The election was held, the returns thereof made to the court, and it was found that the districts voted as follows:
In district No. 11, for 27; against 40
“ “ “ 13, “ 25; “ 6
“ “ “ 47, “ 14; “ 2
Totals in all three, 66 48
The court, therefore, found there was a majority of 18 votes for the question in the territory affected, and made and entered an order dissolving the three districts and consolidating them into one district in accordance with the prayer of the petition.
Appellees who are the directors of district No. 11 and the district, prayed and were granted an appeal to the circuit court, where appellants questioned by demurrer the sufficiency, both as to form and substance, as also the time of filing, of the two affidavits for appeal which were filed by appellees. On a trial de novo in the circuit court, the demurrer was overruled and the order of the county court as above was quashed and set aside. In apt time this appeal followed.
Two questions are argued here for a reversal of, the judgment of the circuit court. One is that the court erred in overruling said demurrer. The other is that it erred in quashing the judgment of the county court. We cannot agree with appellant in either, contention. The first affidavit for appeal stated: “That the appeal is not taken for the purpose of delay, hut that justice may be done to us and to School District No. 11 of Cleveland county.’’ The second is: “do solemnly swear that the appeal taken by us from the 'judgment rendered is not taken for the purpose of delay,” etc., as in No. 1. The right of appeal “from all judgments of county courts” is guaranteed by the Constitution of this state, art. VII, § 33, “to the circuit court under such restrictions and regulations as may be prescribed by law.”
Appellants contend that either or both affidavits are defective in that they fail to aver the identical language used in the statute providing for appeals. Section 2913 of Pope’s Digest is the general statute providing for appeals from all final orders and judgments of the county court to the circuit court within six months, and the last sentence of said section provides: “The party aggrieved, his agent or attorney, shall swear in said affidavit that the appeal is taken because the appellant verily believes that he is aggrieved, and is not taken for vexation or delay, but that justice may be done him. ’ ’ It must be admitted that neither affidavit set out above literally complies with this statute. Section 11481 of Pope’s Digest is the section of the school law relating to the formation of a new district and the dissolution of others or for the annexation of territory to any district, on a petition “purporting to be signed by a majority of the qualified electors in each district affected.” This section provides for appeals to the circuit court on certain grounds and making the findings of the county court otherwise conclusive. We. think this section has no application here as the proceeding to dissolve and consolidate the three districts whs not taken under said section, but under § 11482.
Section 1 of act 183 of 1925 reads in part as follows: “. . . may prosecute an appeal from any such final order or decision, provided, any such person or persons shall within thirty days from the date of the final order or decision complained of, make an affidavit that the appeal taken ... is not taken for the pur pose of delay.” We do not find 'that this section has 'been repealed by act 169 of 1931. There was no specific repeal and repeals by implication are not favored. Only acts in conflict were repealed and § 196 thereof specifically repeals a great many sections of the digest and acts of the Legislature, but § 1 of act 185 of 1925 is not one of them. The affidavits for appeal in question literally comply with that section.
Moreover, years ago, in Hempstead County v. Howard County, 51 Ark. 344, 11 S. W. 478, this court in a case involving an appeal from the county court to the circuit court said: “The repeated decisions of this court discountenancing irregularities ■ of procedure which do not affect the rights of parties upon the merits, and recognizing in the circuit court the power of amending its process and records, as well as pleadings, to any extent short of impairing the substantial rights of the parties, leave no room for an argument against the position assumed by the court in this instance.”
The objection made to the affidavits for appeal are hypercritical and do not affect the rights of the parties on the merits. The appeals were filed in time and might have been granted by the circuit clerk. Tuggle v. Tribble, 173 Ark. 392, 292 S. W. 1020. If not in proper form or substance, they might have been amended in the circuit court. Hempstead County v. Howard County, supra.
As to the second contention, that the court erred in quashing the order of dissolution and consolidation of the county court, we think appellants - are again in error. Section 11477 of Pope’s Digest is the governing statute in this proceeding. It provides in part that: “No existing district shall be included in a new district under the provisions of this section unless a majority of the qualified electors ■ of the district 'to be included sign the petition, or, in case of an election a majority of the voters in the election in the district on the question shall favor it.”
Section 11482 provides for an election “as provided for in § 11487. ” Now, since district No. 11 voted against being dissolved and consolidated with Nos. 13 and 47, it cannot be driven into sncli consolidation under the plain provisions of § 11477, and the county court was without jurisdiction to make the order, and it was void.
The judgment of the circuit court so holding is correct and must be affirmed. | [
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Griffin Smith, C. J.
Jim Davis died intestate in 1924, leaving a widow, Ann, and two daughters, Easter and Mattie.
By a decree of the Miller chancery court the widow’s dower and homestead were assigned in 1925. The widow was the second wife of Jim Davis, and therefore the step-mother of Easter and Mattie. In 1931 she married Andrew Mitchell. Her death occurred in February, 1938.
In December, 1938, Easter Davis filed suit for partition of all the lands owned by her father at the time of his death.
The complaint recited that Mrs. C. W. Person, by virtue of a state tax deed of March 3, 1936, claimed an interest “. . . in Plat B SE14 Sec. 19, 14.14 acres; Plat A N% Sec. 20, 53.83 acres; Plat A SW^ Sec. 20, 41 acres [all in township 17 south, range 25 west”].
Mattie Davis was made a defendant, with others. Mrs. Person demurred on the ground that the plaintiff had not offered to repay tax moneys. The demurrer was overruled.
In her separate answer Mrs. Person admitted that Mattie Davis and her daughter, Rosie, and Arthur McKenzie and his wife, were residing on the lands, but alleged that their occupancy was under a rental contract executed by Mrs. Person; that during the preceding spring Easter Davis lived on a part of the Jim Davis land “outside of levee protection”; that during high water Mrs. Person permitted Easter to move into a house “. . . located on part of said land belonging to her where she has since resided, despite the fact that Mrs. Person has twice given her written notice to move.”
■ • It was then stated that averments in Easter Davis’ complaint constituted the first assertion by either of the heirs that Mrs. Person had not acquired title by adverse possession, the possession, as it was alleged, having-begun in 1929.
Mrs. Person further claimed that she purchased of McKinney Bayou Drainage District its title in 1929; that she afterwards “. . . purchased and kept paid up other tax titles and liens on said lands — levee, county, and state — and entered into possession on said lands claimed by her in the year 1929. Mrs. Person’s possession and notice to said heirs [was] so complete that off and on since the year 1930 she has rented parts of said lands to said heirs and [has] collected rent from the said heirs.”
The fourth paragraph of the answer is: “Mrs. Person does not claim all of said land either by deed or adverse possession. The proof will show the land claimed by her. She is not interested .in paying any part of surveyor’s expense in establishing- said lines so as to correct description thereof. She has no objection to plaintiff’s so doing. Apparently plaintiff is including- land herein that this defendant claims no interest'in.”
The decree of 1925 partitioning the Jim Davis lands described two tracts by metes and bounds — 14.14 acres (more or less) in section 19, township 17 south, range 25 west, and 153.17 acres (more or less) in section 20, same township and range. The two tracts contained 167.17 acres — “more or less.”
Prom the total acreage the decree carved two estates: the homestead, described by metes and bounds, containing 78.1 acres, and the dower, containing- 37.50 acres. Lands assigned to Easter and Mattie Davis, free from'the rights of Ann Davis, were likewise described by metes and bounds, and amounted to 51.7 acres.
Andrew Mitchell testified that when he married Ann Davis in 1931 Ann was in possession of a 63-acre tract; that he worked the land that year and “put up all the hands”; that the “hands” referred-to worked on the halves; that no rent was paid by them, or by himself, or by his wife, to Mrs. Person; that Mrs. Person took possession of the property in 1932; that the land was “inside” the levee; that to the north Mattie and Easter Davis had some land both inside and outside the levee.
Mattie Davis testified that when the land was partitioned in 1925 Ann Davis got the south end of the place, and the north end went to the heirs. There was testimony on behalf of appellant that the Avitnesses had attorned to Mrs. Person prior to 1932.
H. M. Barney testified that McKinney Bayou Drainage District foreclosed certain tax liens and purchased the. lands as to Avhich the betterments were delinquent. In 1935 Mrs. Person purchased “. . . Part fractional section 20, toAvnship 17 south, range 25 west, and Plat B NWNi, same section, township and range. One of the tracts contained 31 acres, the other 56.09.” The witness said that Mrs. Person paid the delinquent taxes, penalty, interest,, and cost, for the years 1931 to 1935, both inclusive.
Barney further testified that in 1929 Mrs. Person bought at a foreclosure sale “. . . which was a judicial sale, part fractional, section 20, toAvnship 17 south, range 25 Avest. A certificate of sale was made to her. Later we tried to correct the description. ... I gave the deed to the land that is described on the tax record. However, the deed I gave in 1936 contained additional lands. It covered the E. M. Davis tract, which is plat P< NW% of section 20, township 17 south, range 25 west.”
Over objections of the plaintiff, the deed of C. M. Blocker as receiver of the drainage district, was introduced. It contained the recital that “. . . the part fractional, and the plat B northwest quarter of section 20, toAvnship 17 south, range 25 Avest, in Miller county, Arkansas [were returned delinquent for the taxes for 1931 to 1935, inclusive, and Avere purchased by Mrs. Charline W. Person”]. The deed was dated November 20, 1936.
On cross-examination Mr. Barney stated that he was testifying from the original tax book of the district used by the collector; that on page 4 the period from 1924 to 1928 was covered; that in section 20, township 17 south, range 25 west the Pete Davis estate was described as . . fractional section 20,” etc., and that for the E. M. Davis tract the description was “Plat B NW%,” etc. Descriptions for other years were similarly indefinite. The “Plat B NW%” showed 31 acres. In other tracts in section 20 taxes on five acres were charged to “Jordan,” and “. . . the others are. in pencil.” The pencil notations were not on the book when it went to the collector — “They were put there in the handwriting of the auditor of the district. The acreage wasn’t listed at the time of the sale.”
There are several pages of testimony relating to descriptions.
Deed to forfeited land sold to the state, dated March .3, 1936, was introduced. It evidenced purchase by Mrs. Person of “Parts of section: Plot B SE^, section 19, township 17 south, range 25 west, containing 14.14 acres forfeited in 1932; plot A N%, section 20, township 17 south, range 25 west, containing 53.83 acres, forfeited in 1932, and plot A SW%, section 20, township 17 south,' range 25 west, containing 41 acres, forfeited in 1931.”
L. Jean Cook testified that he had been in the abstract business in Miller county since 1922. Was familiar with county records, having investigated them as far back as 1905. Had made a search to ascertain if a map' had been recorded designating lands in “Plat A and Plat B.” Pound no record of such map.
Henry Moore, Jr., testified that Judge Richard Mann was attorney for the district when it was organized, with C. S. Christian as engineer. Christian did not make the original surveys. Maps were made showing the levee line and the hill line. To distinguish the lands “inside” and “outside” the levee Mr. Christian prepared Plat A and Plat B, one showing the land inside the levee and the other showing lands outside the levee.
The drainage district was created by order of the Miller county court May 4, 1923, under provisions of the general drainage district laws, known as the alternative system. [See Board of Commissioners of McKinney Bayou Drainage District v. Board of Commissioners of Garland Levee District, 181 Ark. 898, 28 S. W. 2d 721].
The statutory procedure governing assessments, confirmations, etc., in effect when the drainage district was created, appears as § 3615 of Crawford & Moses’ Digest (since amended), and required the district’s commissioners to “: . . subscribe said assessment and deposit it with the county clerk, where it shall be kept and preserved as a public record.” The purpose of the law was to have all property against which betterments had been levied appropriately described.
Section 3618 provided for annual collection of taxes, the assessments to be extended upon the tax books of the county and collected by the collector of the. county, along with other taxes. Methods for enforcing payment were set out in § 3631 of Crawford & Moses’ Digest (now § 4482 of Pope’s Digest), one requirement being that “. . . a descriptive list of said lands” shall be published.
The district, in its creation and subsequent administration, was represented by excellent legal talent who would not have overlooked fundamentals or details essential to its validity of assessments and the collection of amounts annually due. In the instant case, however, appellant did not require that her evidences of purchase reflect facts sufficient to identify the acreage she expected to buy. The descriptions being insufficient, the deeds did not convey title. Likewise, the state deed was vague. Sutton v. Lee, 181 Ark. 914, 28 S. W. 2d 697. In the Sutton Case it was held that the deed was void “because it. described nothing.” That is true here.
In her answer Mrs. Person disclaimed title to part of the land, the admission being that she was not en titled to the full acreage “either by deed or adverse possession.” She thought the proof would show what land came within the descriptions upon which she relied. It did not.
The decree is affirmed. | [
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ROBERT J. GLADWIN, Chief Judge
| lAppellant Timothy Conway appeals the order filed March 21, 2014, by which the Pulaski County Circuit Court terminated his parental rights to his daughter, T.C., born November 20, 2012. He argues that there was insufficient evidence to support the termination of parental rights. We affirm.
On November 20, 2012, Lawanna Bell— a Wrightsville prison inmate — gave birth to T.C. Appellant, who is both Ms. Bell’s husband and T.C.’s legal father, wanted to care for T.C., but he tested positive for illegal drugs. Additionally, his criminal history included convictions for (1) raping a five-year-old female relative when he was a teenager; (2) failing to register as a sex offender; (3) manufacturing and possessing a controlled substance; and (4) possession of a firearm.
|2On November 29, 2012, appellee, the Department of Human Services, (DHS) filed a petition for emergency custody of T.C. because her mother was incarcerated, her father — appellant—was a registered sex offender, and there were no other appropriate legal caretakers willing to provide care for her. The case proceeded, and T.C. was adjudicated dependent-neglected four months after the initial custody petition. The circuit court, given appellant’s criminal history, declined to place custody of T.C. with appellant, stating,
[Appellant] was not — and is still not— appropriate to take [T.C.] into his physical custody because he is a sex offender who is on parole, the conditions of which required that he is not to be around children and not to be around any women with children.
In its disposition order filed on January 16, 2013, the circuit court ordered T.C. to remain in DHS’s custody and made guardianship and reunification with Ms. Bell concurrent case goals. On May 16, 2013, the circuit court reviewed the case, ordered T.C. to remain in DHS’s custody, and made no case-goal changes.
On August 22, 2013, the circuit court again reviewed the case, after which it ordered T.C. to remain in DHS’s custody, and maintained the same concurrent case goals. But the circuit court also made a finding that appellant had threatened DHS personnel, and the circuit court questioned why no request for visitation suspension had been sought:
[Appellant] did visit [T.C.] until July 22, 2013, when, during [Ms. Bell’s] visitation, he threatened the safety of certain DHS personnel. DHS not [sic] allowed him to visit since July 23, 2013, which was his scheduled visitation date. The Court cannot understand why the DHS attorney did not file an ex parte motion to suspend visitation until at least today’s date.
|sThe circuit court suspended appellant’s visitation with T.C. until further order of the court and expressed serious concerns about appellant’s “mental health condition and his propensity for threatening behavior.”
On November 7, 2013, the circuit court conducted a permanency-planning hearing. The circuit court found in its resulting order that, since the last hearing, appellant had been incarcerated and remained an inappropriate placement for T.C. because of his sex-offender status. At that time, the case goal was changed to adoption, authorizing DHS to file a petition to terminate appellant’s parental rights. The petition to terminate was filed as to both appellant and Ms. Bell on November 26, 2013. As to appellant, the petition referenced not only his sex-offender status, but also his parole violation by being in the home with the juvenile, safety concerns due to his violent behavior and threats to DHS staff, and lack of stable employment or housing.
On February 20, 2014, the circuit court heard DHS’s termination petition, and the matter was taken under advisement. On March 21, 2014, DHS’s petition was granted as to both parents, the order stating in pertinent part that appellant failed to remedy issues that arose subsequent to T.C.’s removal by DHS — citing his status as a sex offender, criminal history, threatening behavior toward DHS during this case, and continued incarceration — and also that appellant’s sentence of nine months constituted a substantial period of T.C.’s life. On April 3, 2014, appellant filed his timely notice of appeal.
|4We review termination-of-parental-rights cases de novo. Jones v. Ark. Dep’t of Human Servs., 2014 Ark. App. 717. Termination of parental rights is an extreme remedy and in derogation of the natural rights of parents. Watson v. Ark. Dep’t of Human Servs., 2014 Ark. App. 28. DHS must prove by clear and convincing evidence — that degree of proof that will produce in the finder of fact a firm conviction as to the allegation sought to be established — that it is in a child’s best interest to terminate parental rights, as well as the existence of at least one statutory ground for termination. Jones, supra. In determining the best interest of the juvenile, a circuit court must take into consideration (1) the likelihood that the juvenile will be adopted if the termination petition is granted; and (2) the potential harm, specifically addressing the effect on the health and safety of the child, caused by returning the child to the custody of the parent. Id. When the burden of proof is clear and convincing evidence, the inquiry on appeal is whether the circuit court’s finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous; a finding is clearly erroneous when, although there is evidence to support it, the appellate court, on the entire evidence, is left with a definite and firm conviction that a mistake has been made. Watson, supra. However, we give a high degree of deference to the circuit court, as it is in a far superior position to observe the parties before it and judge the credibility of the witnesses. Jones, supra.
A court may order termination of parental rights if it finds that there is an “appropriate permanency placement plan” for the child, Ark.Code Ann. § 9-27-341(b)(1)(A) (Supp. 2013), and further finds by clear and convincing evidence that termination is in the best | .^interest of the child, taking into consideration the likelihood of adoption and the potential harm to the health and welfare of the child that would be caused by returning him or her to the custody of the parent. Ark.Code Ann. § 9-27-341(b)(3)(A). Finally, there must be clear and convincing evidence supporting one or more of the grounds for termination listed in section 9—27—341(b)(3)(B).
In this case, DHS alleged two grounds against appellant, both of which were included in the findings by the circuit court: (1) that appellant failed to remedy issues that arose subsequent to T.C.’s removal by DHS, and (2) that appellant’s sentence of nine months constituted a substantial period of T.C.’s life.
Arkansas Code Annotated section 9-27-341(b)(3)(B)(vii) provides what is often referred to as the “subsequent factors” ground. It allows for termination of parental rights if it is in the best interest of the child, and
[t]hat other factors or issues arose subsequent to the filing of the original peti tion for dependency-neglect that demonstrate that return of the juvenile to the custody of the parent is contrary to the juvenile’s health, or welfare and that, despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy the subsequent issues or factor or rehabilitate the parent’s circumstances that prevent return of the juvenile to the custody of the parent.
In the petition and termination order, DHS and the circuit court referenced appellant’s status as a sex offender as part of the “subsequent factors” preventing reuni-fícation. IfiAppellant argues that his sex-offender status is wholly irrelevant to this particular ground because his status did not arise “subsequent to the filing of the original petition for dependency-neglect,” which is what this provision addresses. Appellant’s sex-offender status was, in part, the initial cause of T.C.’s removal, and he submits that there is a separate ground that addresses a failure to remedy initial causes of removal, although DHS did not pursue termination of appellant’s parental rights on that ground. See Jones v. Ark. Dep’t of Human Servs., 2011 Ark. App. 632 (holding that courts may not alter or disregard the language of a legislatively enacted ground for termination, and if the ground, as worded, does not fit the facts of the case, it should not be used).
We disagree and hold that the circuit court’s subsequent-factors finding was not clearly erroneous. Although appellant’s bad deeds with respect to his sex-offender status occurred prior to this case, his threats to DHS personnel’s safety did not. Appellant “threatened to blow up the DHS building,” and for the next several days thereafter, he made more violent threats. The evidence presented indicated, and appellant admitted, that as a teenager, he contracted a sexually transmitted disease “from one of the women he had been fooling around with_” This made 'him angry, and in response and out of admitted hate, he raped his five-year-old relative. He served eleven years’ imprisonment on the rape conviction, and afterward he had other criminal convictions, including gun charges, drug charges, and theft of property. Appellant’s admitted criminal history provides context for his present-day threats against DHS, and his historically violent behavior highlights the seriousness of his present-day threats. The circuit court expressed, on multiple occasions, 17concern over appellant’s “mental health condition and his propensity for threatening behavior.” Appellant’s behavior during the case constituted a factor arising subsequent to the filing of the original petition and made it contrary to T.C.’s best interest to return to appellant.
T.C. entered foster care on November 26, 2012, when she was six days old. Appellant was incarcerated at the end of July 2013 for a parole revocation. At the time of the termination hearing on February 20, 2014, appellant was not expected to be released until at least May 2014. More importantly, appellant did not have a viable plan for himself upon his release from prison regarding stable housing or employment. Appellant’s incarceration and lack of a viable plan upon his release were additional issues that arose subsequent to the filing of the original petition and made it not only inadvisable to place T.C. in appellant’s custody but also impossible to do so. See Friend v. Ark. Dep’t of Human Servs., 2009 Ark. App. 606, 344 S.W.3d 670. It was not error to terminate appellant’s parental rights “in light of [appellant’s] obvious inability to provide a stable home for [the child] within a time frame consistent with his development ... or within a reasonable period of time viewed from [the child’s] perspective.” Id. (internal citations omitted).
In addition to appellant’s incarceration, appellant remained in a committed relationship with T.C.’s mother, Ms. Bell. Toward the end of the case, at the permanency-planning hearing, when the goal changed to adoption, Ms. Bell stated that she intended to separate from appellant, but the DHS worker doubted Ms. Bell’s statement and believed they would remain in a relationship. Despite Ms. Bell’s incapacity to provide for T.C., appellant Isdecided to remain in a relationship with her. Ms. Bell, throughout the ease, was never fit to obtain custody of T.C., and her rights were eventually terminated because she could not provide the necessary care for T.C. Ms. Bell did not appeal the termination of her parental rights. This court has affirmed termination cases where a parent continued to have contact with someone who adversely impacted the family’s stability or welfare. See Cariker v. Ark. Dep’t of Human Servs., 2011 Ark. App. 574, 385 S.W.3d 859; Tadlock v. Ark. Dep’t of Human Servs., 2009 Ark. App. 841, 372 S.W.3d 403.
Appellant’s status as a sex offender is also important and relevant because his status prohibited him from having unsupervised contact with children. Appellant’s decision to remain married to Ms. Bell left Ms. Bell as the person who would have to supervise appellant’s contact with T.C. There was concern that Ms. Bell did not fully appreciate the gravity of appellant’s status as a sex offender, and accordingly that she would not sufficiently protect T.C. The testimony was that Ms. Bell was “not up to the task of providing supervision for [appellant].... ” DHS made a referral for appellant regarding his sex-offender status, but he did not follow up on those services.
We hold that the circuit court properly terminated appellant’s parental rights under section 9 — 27—341(b) (3 )(B) (vii) (a) and that DHS proved that (1) other factors or issues arose subsequent to the filing of the original petition; (2) those factors made it contrary to the juvenile’s health, safety, or welfare for the juvenile to be returned to the parent; and (3) despite the offer of appropriate family services, the parent has manifested the incapacity or | indifference to remedy the subsequent issues or factors or rehabilitate the parent’s circumstances. Id.
Although appellant argues that DHS did not demonstrate that appropriate family services were offered to him, the record before us does not reflect that he raised this argument before the circuit court. This court has repeatedly stated that it will not address a reasonable-efforts argument raised for the first time on appeal. Warren v. Ark. Dep’t of Human Servs., 2014 Ark. App. 469, 441 S.W.3d 72; see also Landis-Maynard v. Ark. Dep’t of Human Servs., 2011 Ark. App. 673, 386 S.W.3d 641; Kelley v. Ark. Dep’t of Human Servs., 2011 Ark. App. 481; Friend, supra. Appellant is therefore barred from making this argument now for the first time on appeal.
Because only one statutory ground is necessary for termination of parental rights pursuant to section 9-27-341(b)(3)(B), we need not address appellant’s argument regarding the other ground for termination. See Tankersley v. Ark. Dep’t of Human Servs., 2012 Ark. App. 109, 389 S.W.3d 96.
Affirmed.
Virden and Hixson, JJ., agree.
. Eight months into the case, appellant began a nine-month sentence for a parole violation. He was still incarcerated at the time of the termination hearing in March 2014, scheduled potentially to be released two months after that hearing.
. Appellant does not contest the circuit court’s findings regarding the two "best interest” factors — adoptability and potential harm. Accordingly, this argument is abandoned, see Benedict v. Ark. Dep't of Human Servs., 96 Ark. App. 395, 242 S.W.3d 305 (2006), and no best-interest finding can be considered erroneous. Anderson v. Ark. Dep’t of Human Servs., 2011 Ark. App. 522, 385 S.W.3d 367. | [
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PER CURIAM
hOn March 30, 2011, judgment was entered reflecting that appellant Matthew Esry had entered a plea of guilty to second-degree battery for which a sentence of 96 months’ imprisonment was imposed. While appellant was informed at the plea hearing that the sentence would be enhanced based on his habitual-offender status, the judgment-and-commitment order does not reflect that he was sentenced as a habitual offender.
Appellant was charged by information alleging that he committed second-degree battery and asserting that he was a habitual offender based on prior convictions of criminal mischief and rape. The record reflects that, at the plea hearing on March 22, 2011, appellant was informed that he had been charged with second-degree battery as a habitual offender. He stated that he understood that the punishment range for second-degree battery is zero to six years, that the punishment would be enhanced by habitual-offender status based on two prior felony convictions, and that he was pleading to a sentence of eight years based on that enhancement. ^Thereafter, the trial court sentenced him at the hearing as a habitual offender to eight years’ imprisonment. Appellant also signed a plea agreement filed on March 23, 2011, indicating the imposition of a sentence of eight years based on a guilty plea to second-degree battery and habitual-offender status. While the judgment-and-commitment order entered on March 30, 2011, reflects that appellant was sentenced to serve 96 months’ imprisonment for second-degree battery, the order was not appropriately marked to indicate that appellant was sentenced as a habitual offender.
. In December 2011, appellant filed a petition to correct an illegal sentence, alleging that the sentence imposed was outside the statutory range for second-degree battery. Following a hearing on June 26, 2012, the trial court denied and dismissed the petition based on its finding that, because the petition was untimely, it no longer had jurisdiction over the matter. The trial court found, however, that the eight-year sentence did exceed the presumptive sentence for second-degree battery.
In October 2012, appellant again filed a petition to correct an illegal sentence, repeating the allegation that the imposed sentence was outside the statutory range and raising the additional allegation that he had notified his attorney of this error within ninety days after his sentence was imposed.. In an order entered on February 5, 2018, the trial court “closed the case” and found it would not address the argument raised in the petition based on the doctrine of res judicata.
On August 16, 2013, appellant filed another petition to correct an illegal sentence, contending as he had previously that his sentence was outside the statutory range for second-1 sdegree battery. He alleged that, because the sentence was outside the range, it was illegal on its face. The trial court denied the petition, and appellant has lodged an appeal from that order in this court.
On appeal, appellant argues that, because the judgment-and-commitment order reflects a sentence of 96 months’ imprisonment based on the conviction of second-degree battery and was not marked to indicate that he was sentenced as a habitual offender, his sentence is illegal based on the available sentencing range for second-degree battery. He further argues for the first time on appeal that his plea agreement is void because it was not signed by the prosecuting attorney. We will not consider new arguments raised for the first time on appeal or consider factual substantiation added to bolster the allegations made below. Thornton v. State, 2014 Ark. 118, 2014 WL 1096263 (per curiam).
Second-degree battery is a Class D felony, which is punishable by a sentence that shall not exceed six years. Ark.Code Ann. § 5-13-202(b) (Supp. 2011); Ark.Code Ann. § 5-4-401(a)(5) (Supp. 2011). Arkansas Code Annotated section 5-4-501(a)(2)(E) (Supp. 2011) provides that a habitual offender with more than one but fewer than four prior felonies, who is convicted of a Class D felony, shall be sentenced to a term of imprisonment of not more than twelve years.
Sentencing in Arkansas is entirely a matter of statute. State v. Colvin, 2013 Ark. 203, 427 S.W.3d 635; Glaze v. State, 2011 Ark. 464, 385 S.W.3d 203. No sentence shall be imposed other than as prescribed by statute. Maldonado v. State, 2009 Ark. 432, 2009 WL 3047345. A void or illegal sentence is one that is illegal on its face. Lovelace v. State, 301 Ark. 519, 785 S.W.2d 212 (1990); Fritts v. State, 298 Ark. 533, 768 S.W.2d 541 (1989). A sentence is illegal on its face when it exceeds the statutory maximum for the offense for which the defendant was convicted. Lovelace, 301 Ark. 519, 785 S.W.2d 212; Fritts, 298 Ark. 533, 768 S.W.2d 541. If a sentence is within the limits set by statute, it is legal. Grissom v. State, 2013 Ark. 417, 2013 WL 5775663 (per curiam).
A claim that a sentence is illegal presents an issue of subject-matter jurisdiction that can be addressed at any time under section 16-90-111(a) (Supp. 2011). McClanton v. State, 2014 Ark. 439, 445 S.W.3d 516 (per curiam); Atkins v. State, 2014 Ark. 393, 441 S.W.3d 19 (per curiam). While it is true that this statute was declared superseded by the time limitations in Arkansas Rule of Criminal Procedure 37.2(c), that portion of section 16-90-111 that provides a means to challenge a sentence on the ground that the sentence is illegal on its face remains in effect. See Reeves v. State, 339 Ark. 304, 5 S.W.3d 41 (1999); see also Gilliland v. State, 2014 Ark. 149, 2014 WL 1344405 (per curiam) (holding that, to the extent that a claim is cognizable under Rule 37.1, section 16-90-111 has been superseded, and any allegation that can be considered under Rule 37.1 is subject to the limitations contained in the Rule). For that reason, the trial court had authority to grant relief under the statute if the sentence imposed on appellant was indeed illegal. Hodges v. State, 2013 Ark. 299, 2013 WL 3946080 (per curiam).
Here, the sentence imposed on appellant did not exceed the statutory maximum. The failure to appropriately indicate on the judgment-and-commitment order that appellant was |Rsentenced as a habitual offender is clearly clerical error that does not result in an illegal sentence. See Grissom v. State, 2009 Ark. 557, 2009 WL 3681389 (per curiam) (recognizing the failure to indicate habitual-offender status in the original judgment-and-commitment order was a “clerical oversight” when the transcript of the plea hearing showed that the appellant was informed that his sentence was being enhanced based on his status as a habitual offender). With respect to clerical errors, this court has repeatedly recognized that clerical errors in judgments are subject to correction at any time. Rayford v. Hobbs, 2014 Ark. 244, 2014 WL 2168720 (per curiam); Misenheimer v. Hobbs, 2012 Ark. 343, 2012 WL 4162461 (per curiam); Smith v. State, 2011 Ark. 333, 2011 WL 3930403 (per curiam) (“[A] circuit court has jurisdiction to amend a judgment and commitment order to correct a clerical error.”). Moreover, clerical errors do not prevent enforcement of a judgment-and-commitment order. Rayford, 2014 Ark. 244; Burgie v. Norris, 2010 Ark. 267, 2010 WL 2132272 (per curiam).
Accordingly, we affirm the denial of the petition on the basis that the sentence of 96 months’ imprisonment imposed on appellant is not an illegal sentence. However, we remand with instructions for the trial court to enter a corrected judgment-and-commitment order reflecting that appellant was sentenced as a habitual offender.
Affirmed and remanded with instructions.
. At the June 26, 2012 hearing, the trial court seemed to indicate that, because the sentence exceeded the presumptive sentence for second-degree battery, appellant would only be required to serve the presumptive sentence, plus 120 days. Apparently based on this finding by the trial court, appellant argues for the first time on appeal that he should be resen-tenced to 120 days. Because we do not find that the imposed sentence is excessive, it is not necessary to address this argument.
. We can affirm if the right result is reached even if it is for a different reason. Watkins v. State, 2014 Ark. 283, 437 S.W.3d 685 (2014) (per curiam). | [
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LARRY D. VAUGHT, Judge
|! Counsel for appellant Derek Lemanuel Harmon has filed this no-merit appeal and motion to withdraw from the sentencing order revoking his probation. Pursuant to Arkansas Supreme Court Rule 4 — 3(k)(l) (2014), and Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), counsel’s brief asserts that there is no issue of arguable merit to present on appeal. Because we agree, we affirm the revocation and grant counsel’s motion to withdraw.
On July 17, 2011, Harmon pled guilty to possession of a controlled substance with intent to deliver. He was sentenced to thirty-six months’ probation; ordered to pay fines, court fees and costs, and probation fees; and directed to obey the terms and conditions of his probation. On November 5, 2013, the State filed a petition to revoke Harmon’s probation, alleging that he had failed to pay fines, costs, and fees; failed to report to the probation office; failed to pay |2probation fees; failed to notify the sheriff and the probation office of his current address and employment; and departed from an approved residence without permission.
A revocation hearing was held on March 6, 2014. Amy Peyton, who collects court-imposed fines and fees for the Crittenden County Sheriffs Office, testified that Harmon was ordered to pay $2165 in court fines, costs, and fees in monthly payments of $50. She testified that Harmon never contacted her and made no payments toward his court fines, costs, and fees, leaving a full balance of $2165. During her testimony, a ledger reflecting the amount Harmon owed in fees, fines, and costs was introduced into evidence.
At the conclusion of Peyton’s testimony, Harmon’s counsel moved to dismiss all of the allegations made in the State’s petition, except for the allegations that he failed to pay court fines, costs, and fees and that he failed to notify the sheriff of his current address and employment. The trial court granted the motion.
Harmon testified that following his probation assessment, he secured employment as a cook at the Community Services of the Blind earning $9 per hour. He further testified that he was aware of his financial obligations related to this case, but he stated that he had been unable to satisfy those obligations because he had been “trying to live” and pay child support for his four children. Harmon, who lived with his mother, requested another chance to pay his monetary obligations.
At the conclusion of the hearing, the trial court found that Harmon had inexcusably failed to report to the sheriffs office and to pay his court fees, fines, and costs. The trial court | .^revoked Harmon’s probation and sentenced him to twenty-four months’ imprisonment in the Arkansas Department of Correction, along with a thirty-six-month suspended imposition of sentence. Counsel’s no-merit brief on appeal discusses the trial court’s sole adverse ruling — the revocation — and explains why it is not a meritorious ground for reversal. Harmon has not raised pro se points for reversal; accordingly, the State declined to file a responsive brief.
Probation may be revoked upon a finding by a preponderance of the evidence that the defendant has inexcusably failed to comply with a condition of the probation. Williams v. State, 2013 Ark. App. 422, at 3, 2013 WL 3254365. On appeal, a revocation will not be overturned unless the decision is clearly against the preponderance of the evidence. Id. If the alleged violation involves the failure to pay ordered amounts, after the State has introduced evidence of nonpayment, the burden shifts to the probationer to provide a reasonable excuse for the failure to pay. Scroggins v. State, 2012 Ark. App. 87, at 9, 389 S.W.3d 40, 45. It is the probationer’s obligation to justify his failure to pay, and this shifting of the burden of production provides an opportunity to explain the reasons for nonpayment. Id., 389 S.W.3d at 45. If the probationer asserts an inability to pay, and provides evidence demonstrating that inability, then the State must demonstrate that the probationer did not make a good-faith effort to pay. Id., 389 S.W.3d at 45. Despite the shifting of the burden of production, the State shoulders the ultimate burden of proving that the probationer’s failure to pay was inexcusable. Id., 389 S.W.3d at 45. Because this determination turns on questions of credibility and the weight to be given testimony, we defer to the trial court’s superior position. Rogers v. State, 2014 Ark. App. 310, at 2, 2014 WL 2013333.
| ^Having carefully examined the record and the brief presented to us, we hold that counsel complied with Rule 4-3(k)(l) and Anders, and that there is no merit to this appeal. The State presented evidence from Peyton that Harmon failed to make any payments on his court-imposed financial obligations and that he failed to report to probation as ordered. Additionally, Harmon admitted that he failed to pay court fees, fines, and costs. While he added that he was unable to make the payments, other testimony from Harmon revealed that he had worked as a cook for thirty years, he secured employment after his probation assessment earning $9 per hour, he earned $13,800 in 2013, and he lived with his mother in her home. Thus, there was sufficient testimony as to Harmon’s ability to pay, his earnings, and employment. And the trial court exercised its role as the finder of fact and made a determination of credibility with regard to Harmon’s explanation for nonpayment. Therefore, we hold that the trial court’s finding that Harmon inexcusably failed to report to his probation officer and to pay his financial obligations was not clearly against the preponderance of the evidence. Accordingly, we affirm the revocation and grant counsel’s motion to withdraw.
Affirmed; motion to withdraw granted.
Harrison and Brown, JJ., agree. | [
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PAUL E. DANIELSON, Associate Justice
| lAppellant John (“John”) Kelly appeals from the final order and decree of divorce from appellee Christian Snowden Kelly (“Christy”) that was entered by the Pulaski County Circuit Court. John had appealed from a prior order of that court, and we reversed and remanded the matter. See Kelly v. Kelly, 2011 Ark. 259, 381 S.W.3d 817 (Kelly I). In the instant appeal, John raises four assertions of error by the circuit court: (1) that it erred in denying his motion to strike or bar evidence relating to the unequal distribution of certain stock; (2) that it erred in failing to equitably distribute the stock; (3) that it lacked jurisdiction to examine or alter the circuit court’s prior ruling on the deficiency from the sale of the marital home; and (4) that it abused its discretion in granting Christy’s motion for leave to deposit alimony owed to him into the registry of the court. Christy’s father, David Snowden, Sr. (“Mr.Snowden”) cross-appeals from the circuit court’s order, which denied his motion to intervene in the ^matter, but only if this court fails to affirm the court’s order on direct appeal. We affirm the circuit court’s order on direct appeal and find the cross-appeal moot.
In the prior appeal, John had argued that the circuit court had erred in finding that certain stock from Tarco Roofing Materials, Inc. (“TRM stock”) was nonmarital properly and in finding him liable for half of the deficiency that resulted from the sale of the marital home. See Kelly I, 2011 Ark. 259, 381 S.W.3d 817. We agreed that the stock was marital property and reversed and remanded the circuit court’s order. See id. We further declined to address John’s argument relating to the marital-home deficiency in light of our reversal and remand “for further proceedings relating to the division of property.” Id. at 9, 381 S.W.3d at 824.
On remand to the circuit court, a flurry of motions was filed by both John and Christy. In addition, Christy’s father sought to intervene in the litigation “to pursue an action for rescission of the [TRM] stock he intended to gift to [Christy].” A hearing was held on the motions pending, and on June 19, 2013, the circuit court’s final order and decree of divorce was filed. In its order, the circuit court found that Christy was entitled to an award of all the TRM stock “as an unequal distribution pursuant to Ark.Code Ann. § 9-12-315(a)(l).” It further found that neither Christy nor John was entitled to employ self-help measures in solving their difficulties relating to alimony owed by Christy to John and the one-half deficiency resulting from the sale of the marital home owed by John to Christy. To that end, the circuit court ordered both Christy and John to pay any sums owed the other within thirty days. In addition, the circuit court denied Mr. Snowden’s intervention motion. John then |sfiled a motion for reconsideration, which was deemed denied. John andiMr. Snowden now appeal.
I. Law of the Case
For his first point on appeal, John argues that the circuit court erred in denying his motion to preclude any argument by Christy for an unequal distribution of the TRM stock. He contends that the doctrine of law of the case barred her from making such an argument, because she did not advance that argument until remand. He further maintains that, in order to argue for an unequal division at this time, Christy was required to advance the argument as an alternative one prior to this court’s remand. Christy responds that because the circuit court’s original ruling that the TRM stock was nonmarital was in her favor, she had no basis for arguing at that time for an unequal distribution of marital property. She contends that it was only after remand that the circuit court was faced with distributing the stock as marital property; therefore, it was at that time, she claims, that she was entitled to present her unequal-distribution argument.
Christy is correct. The doctrine of law of the case prohibits a court from reconsidering issues of law and fact that have already been decided in a prior appeal. See Clinical Study Ctrs., Inc. v. Boellner, 2012 Ark. 266, 411 S.W.3d 695. The doctrine provides that a decision of an appellate court establishes the law of the case for the trial upon remand and for the appellate court itself upon subsequent review. See id. The doctrine serves to effectuate efficiency and finality in the judicial process, and its purpose is to maintain consistency and avoid reconsideration of matters once decided during the course of a single, continuing lawsuit. See id. The law-of-the-case doctrine specifically provides that in a second appeal, the decision of the first appeal is conclusive of every question of law or fact decided in the former appeal and also of those questions that might have been, but were not, presented. See id.
John contends that, despite the circuit court’s ruling in Christy’s favor on the nature of the stock, she was required to assert before the circuit court, and on appeal in Kelly I, her position that, if marital, an unequal distribution should be made. However, we have previously rejected such a notion.
In Landers v. Jameson, 355 Ark. 163, 132 S.W.3d 741 (2003), this court observed:
It is true that this court has said time and again that all issues raised or that could have been raised in a first appeal cannot be raised in a second appeal. But this court has never extended the doctrine [of law of the case] to require a prevailing party at the trial level to also obtain a ruling on a constitutional issue that may be an alternative reason to decide the matter in that party’s favor. Nor has this court required that same prevailing party to cross appeal as an appellee on that same non-essential constitutional ground, if and when the matter is appealed to an appellate court.
355 Ark. at 173, 132 S.W.3d at 748. See also N.D. v. State, 2012 Ark. 265, 411 S.W.3d 205 (citing Landers). Prior to the remand, Christy had argued that the TRM stock was nonmarital property, and the circuit court agreed. See Kelly I, 2011 Ark. 259, 381 S.W.3d 817. Christy therefore would be considered the prevailing party before the circuit court on the stock issue; indeed, John appealed the circuit court’s ruling on the matter in Kelly I.
Pursuant to Landers, Christy, as the prevailing party on the issue of the TRM stock, was not required to assert alternatively to the circuit court or this court that were , the stock marital, an unequal distribution should be made. We therefore hold that Christy was not 15barred by the law-of-the-case doctrine from seeking an unequal distribution after our holding in Kelly I that the stock was marital property.
II. Inequitable Distribution
John next asserts that the circuit court erred in failing to equitably distribute the stock. He contends that if the circuit court was going to consider an unequal distribution, it was obliged to receive current testimony and evidence on factors such as the financial status of the parties, the current fair-market value of the stock, and the amount of income Christy had received from the stock during the course of the divorce. He further avers that the circuit court erred in its unequal distribution of the stock because it made no findings on which it based its decision. Christy responds that there was a fully developed record in the matter that contained ample evidence to allow the circuit court to conduct a full inquiry into the factors required to be considered when making an unequal division and to support the circuit court’s decision.
We review division-of-marital-property cases de novo; even though we do so, we will not reverse the circuit court’s findings of fact unless they are clearly erroneous, or against the preponderance of the evidence. See Hernandez v. Hernandez, 371 Ark. 323, 265 S.W.3d 746 (2007). The division of property itself is also reviewed, and the same standard applies. See id. A finding is clearly erroneous when the reviewing court, on the entire evidence, is left with the definite and firm conviction that a mistake has been made. See id. In order to demonstrate that the circuit court’s ruling was erroneous, the appellant must show that the | ^circuit court abused its discretion by making a decision that was arbitrary or groundless. See id.
We turn first to John’s argument that the circuit court’s unequal distribution of the stocks was erroneous because the circuit court failed to hear current testimony and evidence. Our review of the record-reflects that this argument was not raised to the circuit court until John’s motion for reconsideration. Moreover, it is inconsistent with his position taken prior to the circuit court’s ruling now on appeal.
Subsequent to this court’s decision in Kelly I and the assignment of the case to another circuit court after the recusal of the original trial judge, John did, in fact, ask the court to “set a pretrial conference in this case where you could get up to speed on the case; perhaps rule on some of the pending motions and set this matter for a final hearing.” That said, about one and one-half months later, John stated the following in his reply to Christy’s response to his motion to bar her from seeking an unequal distribution of the TRM stock:
Likewise, the Mandate in this case did not direct the trial court to hold a hearing and receive new evidence on unequal distribution of properly....
During the original hearing of this matter, testimony was offered by the parties concerning the value of the TRM stock. Excerpts from the trial transcript and exhibits (attached as Exhibits A through E) constitutes the extent of the evidence as to the value of the stock — which was $7,451,836.00. If this Court decides that it is consistent with the Mandate [in Kelly I] to engage in unequal distribution and to award Christy 100% of the TRM stock, then John should be given a judgment for half of the stock value determined by the trial evidence along with half of the TRM distributions to Christy since the divorce was filed. See, ACA § 9-12-315(a)(4) and ACA § 9-12-] 7315(a)(1)(A). If this Court decides that it is inconsistent with the Mandate to engage in unequal distribution, then John should be awarded half the stock and half the distributions to Christy since the divorce was filed.
This court has stated that an issue must be presented to the circuit court at the earliest opportunity in order to preserve it for appeal. See, e.g., LaFont v. Mooney Mixon, 2010 Ark. 450, 374 S.W.3d 668. Stated another way, a party may not wait until the outcome of a case to bring an error to the circuit court’s attention. See id. Here, John not only waited until after the outcome of the case to demand a hearing, he also specifically claimed that one was not even necessary; that is, until after the circuit court’s decision. We therefore decline to address the merits of his argument. See, e.g., Switzer v. Shelter Mut. Ins. Co., 362 Ark. 419, 208 S.W.3d 792 (2005).
John next takes issue with what he terms the circuit court’s failure to “give a valid basis and reason” for the unequal distribution of the TRM stock. At the time a divorce decree is entered, all marital property is to be distributed one-half to each party, unless the court finds such a division to be inequitable. See Ark. Code Ann. § 9—12—315(a)(1)(A) (Repl. 2009). In that event, the court is to make some other division that the court deems equitable, taking into consideration several factors: the length of the marriage; age, health, and station in life of the parties; occupation of the parties; amount and sources of income; vocational skills; employability; estate, liabilities, and needs of each party and opportunity of each for further acquisition of capital assets and income; contribution of each party in acquisition, preservation, or appreciation of marital property, including services as a homemaker; and the federal income tax consequences of the court’s division of property. See id. When property is divided 18pursuant to the foregoing considerations, the circuit court must state its basis and reasons for not dividing the marital property equally between the parties, and the basis and reasons should be recited in the circuit court’s order. See Ark.Code Ann. § 9-12-315(a)(1)(B).
Here, the circuit court specifically stated that Christy was entitled to an award of “all of the TRM stock as an unequal distribution” under the division-of-property statute and that the award was “equitable and warranted under the facts of this case, as well as the distribution made to ... John ... of other marital property and the awarding of alimony.” We cannot say that the circuit court’s explanation is inadequate or insufficient. While the circuit court must consider the factors set forth in the statute and state its reasons for dividing properly unequally, it is not required to list each factor in its order or to weigh all the factors equally. See, e.g., Hernandez, 371 Ark. 323, 265 S.W.3d 746; Bamburg v. Bamburg, 2011 Ark. App. 546, 386 S.W.3d 31. Furthermore, the specific enumeration of the factors within the statute does not preclude a circuit court from considering other relevant factors, where exclusion of other factors would lead to absurd results or deny the intent of the legislature to allow for the equitable division of property. See Brown v. Brown, 373 Ark. 333, 284 S.W.3d 17 (2008). The statute requires the circuit court to explain its reasons for not dividing the marital property equally, and the circuit court did just that.
We are further unable to say that the circuit court erred in its distribution of the TRM stock to Christy. This court has consistently interpreted section 9-12-315(a) to grant the circuit court broad powers in distributing both nonmari-tal and marital property to achieve an equitable division. See Farrell v. Farrell, 365 Ark. 465, 231 S.W.3d 619 (2006). Our | gproperty-division statute does not compel mathematical precision in the distribution of property; its overriding purpose is to enable the court to make a division that is fair and equitable under the circumstances. See Jones v. Jones, 2014 Ark. 96, 432 S.W.3d 36; Box v. Box, 312 Ark. 550, 851 S.W.2d 437 (1993).
As already set forth, the circuit court premised its distribution of the TRM stock to Christy on the prior distribution of marital property and award of alimony to John, which included a lake house “as an unequal distribution”; a 1999 Tahoe “as an unequal division of property,” in addition to his respective vehicle; several bank and investment accounts, two of which were part of an unequal division to give John “a significant sum to fund any expenses or retirement plans”; and alimony in the amount of $5,000 per month for ten years, “[d]ue to the .disproportionate earnings and earning potential between the parties and the testimony that the parties’ very comfortable lifestyle was attributable to [Christyjs income.” As evidenced quite clearly by the circuit court’s orders, John previously received himself an unequal division of the parties’ real and personal property to “allow him to fund a ‘realistic’ retirement plan and provide for his anticipated expenses.”
The property-division statute simply requires that marital property be distributed equitably. See Jones, 2014 Ark. 96, 432 S.W.3d 36. That the circuit court on remand found it appropriate to award the TRM stock to Christy as an unequal distribution following the previous unequal award in John’s favor fails to leave this court with a definite and firm conviction that a mistake was made; nor has John demonstrated error by showing that the circuit court’s decision was arbitrary or groundless. As we have previously explained, we will | innot substitute our judgment on appeal as to the exact interest each party should have, but will decide only whether the order is clearly wrong. See Pinkston v. Pinkston, 278 Ark. 233, 644 S.W.2d 930 (1983). Any exception to the rule of equal distribution will always depend on the specific facts as reflected by the circuit court’s findings and conclusions. See Gentry v. Gentry, 282 Ark. 413, 668 S.W.2d 947 (1984). Given our standard of review, we must affirm the circuit court’s award of the TRM stock to Christy as an unequal division of properly.
III. Marital-Home Deficiency
John next contends that, because this court did not address his contention in Kelly I relating to the circuit court’s equal division of the deficiency following the sale of the marital home, the debt-on-the-marital-home issue “was placed in appellate limbo” and was not part of this court’s mandate in Kelly I. He urges that our remand was limited solely to the stock issue and, thus, the circuit court had no jurisdiction to order him to pay his portion of the marital-home deficiency within thirty days. John further claims that even if the circuit court had the jurisdiction to do so, the circuit court should have taken into consideration John’s ability to pay the amount claimed due.
John’s assertion that the marital-home deficiency was left in appellate limbo is, quite simply put, mistaken. The division of property necessarily entails consideration of both the assets and the debts, as was explained in our citations to authority in the original appeal. See Kelly I, 2011 Ark. 259, 381 S.W.3d 817 (citing Hackett v. Hackett, 278 Ark. 82, 643 S.W.2d 560 (1982); Gilliam v. Gilliam, 2010 Ark. App. 137, 374 S.W.3d 108; Boxley v. Boxley, 77 Ark. App. 136, 73 S.W.3d 19 (2002)). Here, the circuit court did not reapportion the liability |, ¶ of the parties relating to the deficiency, but its order did direct that both John and Christy had “thirty (30) days to pay any sums owed the other party for alimony or in satisfaction of any deficiency.” Because the circuit court was required to reexamine the division of property pursuant to this court’s mandate, it was entitled to also consider the division of debts, including the deficiency of the marital home. While John further claims that the circuit court should have considered his ability to pay any amount due before directing the payment thereof, he cites to no authority for his proposition. That is sufficient reason not to address his ability-to-pay claim. See, e.g., Ginsburg v. Ginsburg, 359 Ark. 226, 195 S.W.3d 898 (2004). We hold that our mandate in Kelly I did not preclude the circuit court from addressing the deficiency on the marital home; therefore, we find no merit to John’s argument relating to the deficiency.
IV. Court’s Registry
For his final point on appeal, John urges that the circuit court abused its discretion in permitting Christy to deposit alimony payments she owed him into the court’s registry. The thrust of his argument appears to be that permitting her to do so was somehow unfair because she had previously sought a setoff of amounts she claimed were due from him to her, and her request was denied.
The record before us reveals that following the filing of the circuit court’s order on June 19, 2013, Christy filed a motion for leave to deposit funds into the registry of the court. In her motion, Christy admitted that she owed accrued alimony to John and stated her desire to tender the amount owed — $245,000—immediately into the registry of the court. She | ^further sought permission to submit monthly payments for remaining alimony payments due and stated her intention to petition the court “to reduce any remaining unpaid balance on the deficiency owed by John to her from the sale of the marital home to a judgment, and order a set off from this amount against the funds she has deposited [in]to the registry of the court.” Over John’s objections, the circuit court entered an order granting Christy’s motion to deposit funds and ordered the clerk to accept and hold any funds deposited until further order of the court. While John takes issue with the circuit court’s order permitting Christy to do so, he has yet again failed to cite this court to any convincing authority in support of his proposition that the circuit court erred. The failure to cite authority is sufficient reason to affirm the circuit court’s ruling on this point. See Nielsen v. Berger-Nielsen, 347 Ark. 996, 69 S.W.3d 414 (2002).
For the foregoing reasons, we affirm the circuit court. Because we do so, Mr. Snowden’s conditional cross-appeal is rendered moot.
Affirmed on direct appeal; cross-appeal moot.
Hart, J., and Special Justices Amy Grimes and Jodi L. Strother dissent.
Baker and Hoofman, JJ., not participating.
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COURTNEY HUDSON GOODSON, Associate Justice
| lAppellant Tina Olson appeals a decree entered by the Pope County Circuit Court granting her amended complaint for divorce on the ground of adultery against appellee Don Olson. For reversal, Tina contends that the circuit court erred (1) by granting the divorce on her amended complaint based on the testimony of Don and his witnesses when she was not present at trial; (2) by dividing the parties’ debts and assets pursuant to the divorce or by making an unequal division of marital property; and (3) by dismissing her claim for alimony or by failing to award alimony. We accepted certification of the appeal from the Arkansas Court of Appeals as raising an issue of first impression; therefore, our jurisdiction is pursuant to Arkansas Supreme Court Rule 1 — 2(b)(1). We reverse and remand on the first point raised on appeal.
Tina initiated this action by filing a complaint for divorce on grounds of general indignities in the Pope County Circuit Court on July 11, 2012. In the complaint, Tina 12alleged that the parties had married in February 1987, that they had an adult child but no minor children, and that they had separated on the date that she filed the complaint. She also stated that the parties owned both real and personal property that would be subject to division by the court, and she requested alimony. Tina filed an amended complaint on August 21, 2012, in which she asserted that the parties had entered into a covenant of marriage following the passage of the Covenant of Marriage Act of 2001. In this complaint, she alleged that she was entitled to a divorce on the ground of adultery.
After a hearing, the circuit court entered a temporary order on August 80, 2012, granting Tina temporary possession of the marital home, which the parties had listed for sale, and ordering Don to pay all of the parties’ bills, in addition to spousal support of $250 per month. On December 11, 2012, the circuit court amended the temporary order by placing Don in possession of the marital home, as Tina had left the state, and by increasing Tina’s spousal support to $400 per month. This order also incorporated a three-page list of personal property that the parties had divided by agreement. On January 14, 2013, Tina filed a motion for contempt alleging that Don was delinquent in his payment of spousal support. On February 5, 2013, Don filed a counterclaim for divorce based on the ground of general indignities. The counterclaim did not mention that the parties had entered into a covenant of marriage.
On July 15, 2013, the circuit court notified the parties by letter that the final divorce hearing would be held on October 2, 2013. On that date, Tina failed to appear for trial. At the outset of the hearing, the circuit court inquired as to whether Don wished to proceed on |ahis counterclaim for divorce. Don’s counsel replied that it would be necessary to amend the counterclaim to allege that the parties had entered into a covenant of marriage and to allege “specific grounds.”
In his testimony, Don introduced into evidence an exhibit listing the parties’ debts, and he asked that any funds Tina received as a result of a medical-device lawsuit be applied toward the payment of their debts. He also stated that the parties’ home had sold at a profit of $57,180 and that he had given Tina $30,000 of the proceeds from the sale. Don also testified that the list of property incorporated into the amended temporary order was intended to settle the division of their personal property. He said that, when Tina moved from the marital home, she had left some of her personal property contained on the list. Don stated that he had placed Tina’s property in a storage unit, along with his items of property that did not fit in his new residence, at a cost of $45 per month. He further testified that Tina had taken four clocks and a pocket watch that he had inherited and that was designated as his property in their agreement. He testified as to other items of property that Tina had retained contrary to the parties’ settlement agreement, including a blender, a television, a DVD player, an autographed picture of John Daly, and books.
With regard to his retirement accounts, Don stated that he and Tina had been married for twenty-six years and that he had been working for Entergy “much longer than that.” He said that he planned to retire the following January, and he expressed the opinion that Tina was entitled to forty percent of his pension, which would amount to approximately $2,000 per month. Don testified that he was not willing to part with any of the funds held in his 14401k account.
In addition, Don acknowledged that he and Tina had entered into a covenant of marriage. He stated that they had sought professional counseling just prior to their separation in a sincere effort to resolve their marital difficulties. Don also testified that he had committed adultery. At this juncture in the testimony, the circuit court interjected to ask whether Don was going forward with his counterclaim for divorce on general indignities or whether he was admitting Tina’s grounds for divorce. Don’s counsel responded that he was moving forward on Don’s counterclaim, saying, “I don’t think I could prosecute hers necessarily.” Counsel added that he was moving orally to amend Don’s counterclaim to reflect the ground of adultery “because of the covenant of marriage.” The circuit court granted Don’s motion to amend his counterclaim to reflect the covenant of marriage and the ground of adultery. Whereupon, Carrie Clayton testified as to that ground. Clayton stated that she had engaged in “a sexual relationship with Mr. Olson subsequent to him being married to Mrs. Olson.”
In oral rulings from the bench, the circuit court dismissed Tina’s pending motion for contempt and her request for alimony based on her “failure to prosecute” and because she had not requested a continuance. The court granted Don’s orally amended counterclaim for divorce on the ground of adultery. The circuit court ordered Tina to return the clocks and |fithe pocket watch that Don had inherited and pursuant to their agreement. Alternatively, if Tina failed to return this property, the court found that the property was worth $2,000, and the court granted judgment in that amount. As for the items of Tina’s personal property that Don had placed in storage, the court found that Tina had abandoned this property and that the value of the properly and the storage costs were offset by the items kept by Tina that belonged to Don according to their settlement agreement. The circuit court directed that any proceeds Tina received from the lawsuit were to be applied to the parties’ debts and that any remaining debt was to be divided equally. The court awarded Tina forty percent of Don’s pension and granted Don’s request to retain the entire 401k account.
On October 4, 2013, Don filed a motion pursuant to Rules 59 and 60 of the Arkansas Rules of Civil Procedure to modify the circuit court’s oral decision in one respect. Instead of granting him the divorce, he asked the court to award Tina the divorce based on her amended complaint and her ground of adultery. In this motion, Don noted that he had presented evidence both proving and corroborating Tina’s grounds for divorce, and he presented as additional evidence the affidavit of Laurie Scallion. In this affidavit, Scallion averred that “Don Olson has told me that within the last fifteen months, he has had a sexual relationship with a girl named Carrie.” On October 10, 2018, the circuit court entered its decree in which the court granted Don’s posttrial motion and awarded Tina a divorce on the ground of adultery. With that one alteration, the decree incorporated the court’s oral rulings made at the hearing. This timely appeal followed.
As her first point on appeal, Tina contends that the circuit court erred in granting her |fithe divorce when she was not present at the hearing. She argues that she was the real party in interest and that she was the only person who could pursue her claim. In this regard, she asserts that neither Don, who is not a lawyer, nor Don’s attorney, because of a conflict of interest, could prosecute her complaint for divorce. Tina asserts that the situation left the circuit court with the options of either continuing the trial to another date, or dismissing her complaint without prejudice pursuant to Rule 41 of the Arkansas Rules of Civil Procedure and allowing Don to proceed with his counterclaim for divorce. With regard to the second option, she points out that Don could not have obtained a divorce on his stated grounds because general indignities is not a ground upon which a covenant of marriage may be dissolved. She also maintains that Don’s admission that he committed adultery provides no grounds upon which he could obtain a divorce and that such an admission cannot force a divorce upon a spouse who chooses not to prosecute a claim for divorce. Further, she contends that the evidence failed to establish the ground of adultery because the evidence did not show that Don had committed adultery before she filed the complaint for divorce.
In response, Don contends that Tina’s arguments are not preserved for appeal because she did not present them at the hearing or in a posttrial motion. He asserts that Tina’s arguments do not call into question the circuit court’s subject-matter jurisdiction and that, therefore, the issues she raises cannot be asserted for the first time on appeal. Don also argues that Tina’s contentions are without merit because she fully participated in the proceedings leading up to the final hearing, because she repeatedly asked for a divorce, and because she testified as to his adultery at the temporary hearing. He maintains that Tina’s “manipulative |7defiance” of the circuit court’s order setting the hearing and her failure to attend the trial does not diminish the fact that she requested a divorce. He also asserts that the circuit court was presented with ample evidence establishing Tina’s claim of adultery.
As an initial matter, we address Don’s contention that Tina’s claim of error is not preserved for appeal. It is well settled that this court will not consider arguments raised for the first time on appeal. Millsap v. Williams, 2014 Ark. 469, 449 S.W.3d 291; Brown v. Lee, 2012 Ark. 417, 424 S.W.3d 817. Although this court reviews divorce cases de novo on the record, as we stated in Jones v. Jones, 320 Ark. 449, 453, 898 S.W.2d 23, 25 (1995), “De novo review does not mean that this court can entertain new issues on appeal when the opportunity presented itself for them to be raised below, and that opportunity was not seized.” Unless a party has no opportunity to object to a ruling of the circuit court, an objection must be made at the time of the ruling, and the objecting party must make known to the court the action desired and the' grounds of the objection. In re Guardianship of S.H., 2012 Ark. 245, 409 S.W.3d 307; Pearrow v. Feagin, 300 Ark. 274, 778 S.W.2d 941 (1989). Thus, in order for this procedural bar to apply, a party must have had the opportunity to voice an objection to the challenged ruling. In this instance, Tina was not present at the hearing. Therefore, she did not have an opportunity to object. As a result, her failure to raise this question of law at trial is no impediment to her ability to contest the circuit court’s decision to grant her complaint for divorce that she did not prosecute. Nor does her failure to file a posttrial motion contesting the court’s action preclude our review. Where a party has no notice or an opportunity to object to a circuit court’s ruling, a posttrial motion is not necessary to preserve lathe point for appellate review. Ark. Dep’t of Human Servs. v. Briley, 366 Ark. 496, 237 S.W.3d 7 (2006). We also note that the circuit court granted Don’s posttrial motion by entering the decree within ten days of Don’s filing of the motion. Thus, Tina was not afforded the benefit of having ten days to respond to Doris posttrial motion. See Ark. R. Civ. P. 59(d) (where a new-trial motion is supported by affidavits, the opposing party has ten days to respond). Because Tina had no opportunity to question the circuit court’s actions, we conclude that Tina may raise this issue on appeal.
We begin with the observation that divorce is a creature of statute and can only be granted when statutory grounds have been proved and corroborated. Coker v. Coker, 2012 Ark. 383, 423 S.W.3d 599. This court has held that divorces are not granted upon the uncorroborated testimony of the parties and the adverse party’s admission of the truth of the matters alleged as grounds for divorce. Settles v. Settles, 210 Ark. 242, 195 S.W.2d 59 (1946). The parties in this case executed a declaration of intent to designate their marriage as a covenant of marriage, which is a form of marriage that is governed by Arkansas Code Annotated sections 11-9-801 to -811 (Repl.. 2009). AricCode Ann. § 11-9-807. Under these provisions, a covenant of marriage is entered into by couples “who understand and agree that the marriage between them is a lifelong relationship” that is to be severed “only when there has been a complete and total breach of the marital covenant commitn%ent.” Ark.Code Ann. § 9-ll-803(a)(l) & (2). Parties who have entered into a covenant of marriage, after participating in authorized counseling, may either obtain a judgment of divorce or a judgment of judicial separation, but only on specified grounds that differ between the two actions. See |aArk.Code Ann. § 9-ll-808(a) & (b). For our purposes here, a spouse to a covenant of marriage may obtain a divorce where “[t]he other spouse has committed adultery.” Ark.Code Ann. § 9-ll-808(a)(l) (emphasis supplied). However, general indignities constitutes grounds only for obtaining a judicial separation. Ark.Code Ann. § 9-11-808(b)(5)(C).
In the case at bar, the circuit court granted Tina a divorce, although she did not attend the trial to prosecute her claim, based solely on testimony offered by Don to prove and to corroborate Tina’s ground of adultery. In effect, Don procured a divorce based on Tina’s amended complaint when he did not have grounds upon which he could have obtained a divorce, either in his original counterclaim in which he sought a divorce on general indignities or in his orally amended counterclaim alleging the ground of his own adultery. We have no hesitation in concluding that the circuit court erred by granting Tina a divorce under these circumstances.
Rule 41 has some bearing on our analysis in light of Tina’s failure to appear at trial. This rule provides in pertinent part,
(a) Voluntary Dismissal; Effect Thereof.
(1) Subject to the provisions of Rule 28(e) and Rule 66, an action may be dismissed without prejudice to a future action by the plaintiff before the final submission of the case to the jury, or to the court where the trial is by the court. Although such a dismissal is a matter of right, it is effective only upon entry of a court order dismissir% the action.
(2) A voluntary dismissal under paragraph (1) operates as an adjudication on the merits when filed by a plaintiff who has once dismissed in any court of the United States or of any state an action based upon or including the same claim, unless all parties agree by written stipulation that such dismissal is without prejudice.
| lft(3) In any case where a set-off or counterclaim has been previously presented, the defendant shall have the right of proceeding on his claim although the plaintiff may have dismissed his action.
(b) Involuntary Dismissal. In any case in which there has been a failure of the plaintiff to comply with these rules or any order of court or in which there has been no action shown on the record for the past 12 months, the court shall cause notice to be mailed to the attorneys of record, and to any party not represented by an attorney, that the case will be dismissed for want of prosecution unless on a stated day application is made, upon a showing of good cause, to continue the case on the court’s docket. A dismissal under this subdivision is without prejudice to a future action by the plaintiff unless the action has been previously dismissed, whether voluntarily or involuntarily, in which event such dismissal operates as an adjudication on the merits.
We have held that a plaintiff has an absolute right to take a voluntary nonsuit under Rule 41(a) before the final submission of the case for trial. Bevans v. Deutsche Bank Nat’l Trust Co., 373 Ark. 105, 281 S.W.3d 740 (2008). More to the point, we have applied the involuntary-dismissal provisions of Rule 41(b) when a party fails to appear at a hearing. Gore v. Heartland Cmty. Bank, 356 Ark. 665, 158 S.W.3d 123 (2004). We have also observed that a dismissal for the failure to prosecute should ordinarily be without prejudice. Wolford v. St. Paul Fire & Marine Ins. Co., 331 Ark. 426, 961 S.W.2d 743 (1998) (citing Prof's Adjustment Bureau v. Strong, 275 Ark. 249, 629 S.W.2d 284 (1982)).
Pursuant to Rule 41(b), the circuit court had the authority to dismiss Tina’s amended complaint for failure to prosecute when she did not attend the hearing. Also, the court may have exercised its discretion to continue the case to another date. See McNutt v. Yates, 2013 Ark. 427, 430 S.W.3d 91 (observing that continuances lie within the sound discretion of the circuit court). However, we know of no authority that would permit the circuit court to allow Don to proceed with Tina’s amended complaint, which she declined to prosecute.
InThe present situation calls to mind our decision in Haller v. Haller, 234 Ark. 984, 356 S.W.2d 9 (1962). There, the wife sued for divorce, and the husband filed a counterclaim for divorce. After hearing the testimony, the chancery court denied the wife’s claim for divorce, but the court awarded the divorce to the husband, even though he withdrew his counterclaim prior to the final submission of the case. On appeal, the husband argued that the chancery court erred by granting him a divorce. Applying the provision of our former civil code that corresponds to Rule 41(a), we reversed and said,
It must be remembered that the policy of the law is to maintain the marriage relationship, rather than to dissolve it. In 27A C.J.S. ‘Divorce’ § 8, page 27, holdings from the various jurisdictions are cited to sustain this text:
It is generally recognized that the state or the public has an interest in the marital status, its continuance, and dissolution, but an unwilling party, although legally entitled to a divorce, cannot be compelled to procure a divorce, or to consent to a divorce, either ecclesiastical or civil, and it is always optional with a party who is legally entitled to a divorce whether to exercise the right. Thus, the guilty party in a divorce action has no personal right to insist that a divorce be granted against the wishes of the innocent spouse.
Haller, 234 Ark. at 988, 356 S.W.2d at 11-12. We believe that the same reasoning applies here, especially when we consider the unusual circumstance that Don supplied the proof upon which the court granted the divorce to Tina. For whatever reason, Tina did not appear for trial to prosecute her amended complaint for divorce. Don, as the opposing party in the divorce action, could not pursue Tina’s claim. Consequently, we hold that the circuit court | ^clearly erred by awarding Tina a divorce. In so holding, we also reverse the circuit court’s division of the marital property and debts. When a circuit court errs by granting a decree of divorce, the court’s division of property cannot stand. See Shelton v. Shelton, 102 Ark. 54, 59, 143 S.W. 110, 112 (1912) (holding that “if appellant is not entitled to a divorce, she is not entitled to a division of the properly at all”).
The only remaining argument for discussion is Tina’s contention that the circuit court erred by dismissing her claim for alimony to the extent that the dismissal was with prejudice or functioned as a ruling on the merits. As we said earlier, a circuit court is authorized to dismiss a claim upon a party’s failure to prosecute pursuant to -Rule 41(b). Gore, supra., Such dismissals are ordinarily without prejudice, Wolford, supra. In the decree, the circuit court did not expressly dismiss the claim with prejudice. Therefore, we construe the court’s decree as dismissing the claim for alimony without prejudice. We find no error on this point.
Reversed and remanded.
. At the temporary hearing, Don testified that he deposits $482.60 per month into the 401k account.
. Clayton had previously testified that she had known the parties for over thirty years and that the parties had resided in Pope County in Arkansas for over sixty days prior to the filing of the complaint for divorce.
. We interpret Rule 41 in the same manner that we construed the former statute. Wright v. Eddinger, 320 Ark. 151, 894 S.W.2d 937 (1995); Lemon v. Laws, 305 Ark. 143, 806 S.W.2d 1 (1991). | [
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LARRY D. VAUGHT, Judge
11 Jimmy Paul Pickle appeals from the Craighead County Circuit Court’s denial of his motion to suppress evidence obtained when two Arkansas Game and Fish officers (“game wardens”) conducted a war-rantless, suspicionless hunting-compliance check on Pickle’s duck-hunting party. Pickle argues that the game wardens unlawfully detained and unlawfully searched him. The State argues that (1) there was no seizure implicating the Fourth Amendment, (2) Pickle had no reasonable expectation of privacy under the open-fields doctrine, and (3) Pickle had no reasonable expectation of privacy as to his identity. Alternatively, the State argues that reasonable suspicion is not required in order for game wardens to conduct routine hunting-compliance checks. The Arkansas Game and Fish Commission has also filed an amicus curiae brief arguing that war-rantless, suspicionless hunting-compliance checks are necessary tools for game wardens, who would not otherwise be able to enforce state and federal regulations.
li>We disagree with the State’s first three arguments. This case involves a seizure implicating the protections of the Fourth Amendment; the open-fields doctrine does not apply, and there is no legal authority exempting identity from the protections of the Fourth Amendment. As for whether reasonable suspicion is required for routine hunting-compliance checks, controlling precedent mandates that, in the absence of reasonable suspicion, law-enforcement activity must be governed by a plan of explicit, neutral limitations that prevent game wardens from exercising unbridled discretion. Because the circuit court’s order is silent on this key element, we reverse and remand.
I. Facts
At the suppression hearing, the facts revealed that on November 18, 2012, Pickle, a friend, and the friend’s minor son were duck hunting on an oxbow lake along the Cache River in' Craighead County, Arkansas. There is no dispute that the party was hunting in an allowed location, during duck season, and within permissible hunting hours. Two game wardens, Jeff McMullin and Brian Aston, were assigned to the area, patrolling for potential hunting violations. The game wardens testified that they observed Pickle’s hunting party for approximately two hours, but saw nothing to indicate any violations of law. They then made contact with Pickle and his fellow hunters in order to perform a routine hunting-compliance check, which involved verification of hunting licenses and searches for and examination of firearms, ammunition, and game. Pickle and his two companions were not actively hunting at the time; they were cooking breakfast at a campsite, with their firearms resting against nearby trees. The game wardens approached the group, identified themselves, and demanded to see the hunters’ licenses. Pickle |sidentified himself and told the game wardens that he had a valid license but that he had left it in his truck. The game wardens then picked up and examined each gun in turn, asking the group to identify the owner of each firearm. Pickle identified one of the guns as belonging to him, and it was found to be in compliance with all relevant regulations. As part of the routine hunting-compliance check, the game wardens also searched the group for ammunition or game that violated state of federal law. Pickle’s friend was issued a citation for a firearm violation. The minor child was given a warning about an ammunition violation.
Because Pickle indicated that he had a valid hunting license but did not have it on his person, the game wardens then retreated a short distance and called dispatch in Little Rock to verify his license. The game wardens first ran a 10-26 Hunting and Fishing License check, which confirmed that Pickle did have a valid license. They then ran a 10-51 outstanding-warrants check, which revealed that Pickle was a convicted felon. The game wardens returned to the hunting party, arrested Pickle for being a felon in possession of a firearm, and conducted a search incident to arrest, which revealed a small amount of methamphetamine and a glass pipe used for smoking methamphetamine. Pickle was charged with felon in possession of a firearm, possession of a controlled substance, and possession of drug paraphernalia.
In a motion to suppress and subsequent hearing, Pickle argued that the game wardens violated his rights under the Fourth Amendment to the United States Constitution and article 2, section 15, of the Arkansas Constitution by unlawfully detaining him and unlawfully searching him without reasonable suspicion. The circuit court took the issue under advisement and issued an order on September 9, 2013, denying the motion to suppress. Pickle then entered a ^conditional guilty plea, preserving his right to appeal the denial of the motion to suppress, and the circuit court accepted the plea. The circuit court placed Pickle on sixty months’ probation and ordered him to pay fees and costs. Pickle filed a timely notice of appeal.
II. Standard of Review
The proponent of a motion to suppress evidence bears the burden of demonstrating the basis for suppression. Norman v. State, 326 Ark. 210, 214, 931 S.W.2d 96, 99 (1996). In reviewing the denial of a motion to suppress evidence in a criminal proceeding, we make an independent examination based on the totality of the circumstances, reviewing findings of historical fact for clear error and determining whether those facts give rise to reasonable suspicion or probable cause. Yarbrough v. State, 370 Ark. 31, 36, 257 S.W.3d 50, 55 (2007). We give due weight to inferences drawn by the circuit court and deference to the circuit court’s findings, and we will reverse the circuit court only if the denial of the motion to suppress was clearly against a preponderance of the evidence. Id., 257 S.W.3d at 55. Moreover, we defer to the circuit court in assessing the credibility of witnesses. Bogard v. State, 88 Ark. App. 214, 219, 197 S.W.3d 1, 3 (2004).
III. Discussion
Pickle argues that he was unlawfully detained and unlawfully searched, in violation of his rights under the Fourth Amendment to the United States Constitution and article 2, section 15 of the Arkansas Constitution because the game wardens had neither a warrant nor a reasonable suspicion of any violation of law. Both constitutional provisions provide essentially identical protection from unreasonable and arbitrary seizures and searches. Additionally, the Arkansas | ¡jRules of Criminal Procedure restrict law enforcement’s ability to detain or search members of the public. See, e.g., Ark. R.Crim. P. 2.2 & 3.1 (2014). There is no dispute that Arkansas Game and Fish officers are certified law enforcement officers. There is also no dispute that the game wardens in this case lacked any reasonable suspicion that Pickle or his companions were engaged in criminal conduct. The issue presented on appeal is whether game wardens are subject to the same constitutional restrictions as traditional law-enforcement officers. However, before reaching that question, we must first address three preliminary arguments presented by the State as to why the protections of the Fourth Amendment are not implicated in this case.
First, we hold that the game wardens’ initial contact with Pickle, during which he identified himself and identified his gun, was a seizure implicating the protections of the Fourth Amendment or article 2, section 15. “A ‘seizure’ occurs when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.” Thompson v. State, 303 Ark. 407, 409, 797 S.W.2d 450, 451 (1990). The State argues that this situation is more akin to one in which “an officer merely approaches an individual on the street and asks if he is willing to answer some questions.” Cockrell v. State, 2010 Ark. 258, at 17, 370 S.W.3d 197, 207 (citing Thompson, 303 Ark. at 409, 797 S.W.2d at 451-52). Under Cockrell and Thompson, such an encounter is not deemed to be a seizure “because it is in a public place and it is consensual.” Id. However, in State v. Allen, 2013 Ark. 35, at 4, 425 S.W.3d 753, 757, the Arkansas Supreme Court found that a game warden’s actions in stopping a watercraft on Lake Hamilton and boarding it briefly to conduct a safety check constituted a seizure. The State attempts to distinguish Allen by arguing that, although Allen would not have felt free to leave while a game warden was | ^aboard his boat, Pickle was free to leave at all times prior to his arrest and was under no obligation to comply with the game wardens’ requests. We disagree.
Although Pickle was not physically restrained or threatened with arrest if he refused to comply, the encounter went beyond that allowable under Rule 2.2, Cock-rell, and Thompson. Rule 2.2 of the Arkansas Rules of Civil Procedure states:
(a) A law enforcement officer may request any person to furnish information or otherwise cooperate in the investigation or prevention of crime. The officer may request the person to respond to questions, to appear at a police station, or to comply with any other reasonable request.
(b) In making a request pursuant to this rule, no law enforcement officer shall indicate that a person is legally obligated to furnish information or to otherwise cooperate if no such legal obligation exists. Compliance with the request for information or other cooperation hereunder shall not be regarded as involuntary or coerced solely on the ground that such a request was made by a law enforcement officer.
Ark. R.Crim. P. 2.2 (2011). The circuit court admitted into evidence the Arkansas Hunting Guidebook, a copy of which is available to everyone at local sporting goods stores and online, which was presented by the prosecutor as evidence of Pickle’s reasonable expectation of privacy in the hunting context. The Arkansas Hunting Guidebook clearly states that “it is not legal to” “refuse an officer’s lawful request to inspect your wildlife, tackle, hunting equipment, devices, license, or any item that can reasonably contain wildlife” or “interfere with an officer performing their duties or flee from an officer.” Arkansas Game and Fish Commission Hunting Guidebook 18 (2012-18). Therefore, we cannot agree that Pickle would have felt free to leave at any time prior to his arrest. As a result, the encounter at issue here, during which the game wardens obtained l7Pickle’s name and asked him to identify his firearm, was a “seizure” under the Fourth Amendment and article 2, section 15.
Second, we reject the State’s argument that Pickle did not have any reasonable expectation of privacy because he was in an open field. While the State correctly articulates the open-fields doctrine, which holds that a person has no reasonable expectation of privacy in open lands or fields, the doctrine is inapplicable here. See, e.g., Hudspeth v. State, 849 Ark. 315, 322-23, 78 S.W.3d 99, 104 (2002). The open-fields doctrine applies to searches outside a property-owner’s home or curtilage, on land visible to others, where the owner has no expectation of privacy. Id., 78 S.W.3d at 104. It does not stand for the much broader proposition that an officer may detain and search a person simply because he happens to be standing in an open field.
Third, we reject the State’s argument that Pickle had no reasonable expectation of privacy in his identity. Citing Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177, 185, 124 S.Ct. 2451, 159 L.Ed.2d 292 (2004) (stating that “in the ordinary course a police officer is free to ask a person for identification without implicating the Fourth Amendment”) and Fowler v. State, 2010 Ark. 431, at 2-4, 371 S.W.3d 677, 680-81 (stating that officers may ask an individual to approach their vehicle and give his name even absent reasonable suspicion), the State argues that because the game wardens’ initial stop produced no prejudicial information or evidence against Pickle other than his name, the Fourth Amendment and article 2, section 15 do not apply. However, the State’s reliance on Hiibel and Fowler is misplaced because both cases involved reasonable suspicion of a crime prior to law enforcement’s initial contact with the defendant. As discussed above, Rule 2.2 allows officers to request that a person voluntarily provide identification or answer questions. | ^However, neither case establishes the broader rule that police officers may demand an individual’s name or identification absent reasonable suspicion. As discussed above, a reasonable person in Pickle’s circumstances would not have believed himself to be free to refuse the game warden’s requests or terminate the encounter. Without reasonable suspicion, neither Hiibel nor Fowler provide authority for the game wardens’ detention and search of Pickle.
Having established that none of the State’s preliminary arguments provide a basis to affirm, we turn to the key inquiry in this case: whether game wardens must have reasonable suspicion in order to legally conduct routine hunting-compliance checks. The State urges the Court to follow Louisiana, Minnesota, and Montana in holding that game wardens may routinely conduct warrantless, suspicionless hunting-compliance checks without violating the Fourth Amendment. See State v. McHugh, 630 So.2d 1259 (La.1994); State v. Colosimo, 669 N.W.2d 1 (Minn.2003); State v. Boyer, 308 Mont. 276, 42 P.3d 771 (2002). The circuit court adopted the rationale presented in these cases and found that,
Hunters and fishermen who elect to participate in those specialized activities do so with the understanding that everything from the guns they may use, the ammunition they may use, the amount . and kind of waterfowl or fish they may kill or catch, the time when they may hunt or fish, and most everything else about their activity is regulated by the state.
Therefore, the circuit court reasoned, hunters like Pickle have no reasonable expectation of privacy as to game wardens’ hunting-related inquiries. Alternatively, the circuit court stated that, even if a reduced expectation of privacy existed, the game wardens’ actions did not violate Pickle’s rights because the State’s interests in conducting routine hunting-compliance checks are Insufficiently compelling, they cannot be achieved through less restrictive means, and the intrusion on Pickle was slight.
We cannot affirm the circuit court’s determination that reasonable suspicion is not required for routine hunting-compliance checks because both Arkansas and federal law are exceedingly clear that, in those rare instances in which reasonable suspicion is not required, a different sort of safeguard must be in place: the stop or search must be conducted under a plan of explicit, neutral limitations that prevent the officers from exercising unbridled discretion. Allen, 2013 Ark. 35, at 4, 425 S.W.3d at 757; Delaware v. Prouse, 440 U.S. 648, 661, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979) (holding that “except in those situations in which there is at least articu-lable and reasonable suspicion ... stopping an automobile and detaining the driver in order to check his driver’s license and registration ... are unreasonable under the Fourth Amendment. This holding does not preclude the State ... from developing methods for spot checks that involve less intrusion or that do not involve the unconstrained exercise of discretion”) (emphasis added). The explicit, neutral limitations-test is a necessary second prong of analysis in cases where reasonable suspicion is not required. Allen, 2013 Ark. 35, at 4, 425 S.W.3d at 757; Prouse, 440 U.S. 648, 661, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979).
In Prouse, the United States Supreme Court struck down Delaware’s use of sus-picionless automobile “spot checks,” stating that “the ‘grave danger’ of abuse of discretion does not disappear simply because the automobile is subject to state regulation resulting in numerous instances of police-citizen contact.” Prouse, 440 U.S. at 662, 99 S.Ct. 1391. The Court specifically stated that, “given the alternative mechanisms available, both those in use and those that might be adopted,” such as permissible roadblock-style stops, Delaware’s use of standardless, unconstrained | mindividual vehicle stops unconstitutionally permitted officers to base such stops upon their own “unbridled discretion.” Id. In Allen, the Arkansas Supreme Court applied the explicit, neutral limitations-test to a suspicionless stop by a game warden, finding a Fourth Amendment violation because the game warden relied solely upon his own discretion rather than the type of explicit, neutral limitations required in Prouse. Allen, 2013 Ark. 35, at 4, 425 S.W.3d at 757.
At the suppression hearing and on appeal, Pickle has repeatedly argued that exempting game wardens from the reasonable-suspicion requirement would allow unfettered discretion to make random stops based solely on the game warden’s will or discretion. Although the State referred to both Prouse and Allen throughout its brief, it never attempted to articulate the explicit, neutral limitations that apply to routine hunting-compliance checks. Despite the fact that the Arkansas Hunter’s Guidebook and relevant federal regulations were introduced at the hearing and both officers took the stand to testify, neither the State nor the circuit court specifically addressed whether current hunting laws and regulations, or possibly internal AGFC policies and procedures, provided the type of explicit, neutral limitations required by Prouse and Allen. The record is simply silent on this issue.
In fact, this case presents the same problems that required suppression in Allen. In Allen, a game warden stopped a boat on Lake Hamilton in order to conduct a warrentless, suspicionless safety-compliance check for items such as life jackets. Allen, 2013 Ark. 35, at 1, 425 S.W.3d at 755. Although no violations had been observed before the stop, the game warden boarded the boat, conducted a search, determined that the operator had been drinking, and charged him with boating while intoxicated. Id., 425 S.W.3d at 755. The Arkansas Supreme |nCourt affirmed the circuit court’s decision to suppress the evidence because the game warden lacked any legal basis for the stop and search, and the stop was not pursuant to a plan that placed explicit, neutral limitations on the game warden’s conduct. 2013 Ark. 35, at 4, 425 S.W.3d at 757. For example, the court noted that the game warden tried to stop as many vessels as he could during each shift, but there were no explicit, neutral criteria for determining which boats to stop. Id., 425 S.W.3d at 757.
Here, the game wardens also testified that they attempted to conduct as many hunting-compliance checks as possible, but there is no evidence to suggest that anything other than their own unbridled discretion determined who would be stopped. Likewise, the game wardens in this case appear to have gone beyond the scope of a routine hunting-compliance check when they chose to run an outstanding-warrants check on Pickle and discovered that he was a convicted felon. Officer Aston testified that it was his own personal protocol to run such a check when a hunter did not have his hunting license in his physical possession. The record is silent on wheth er the warrants check was part of any explicit plan or policy governing the conduct of AGFC officers, or whether the game wardens in this case were doing exactly what the Allen and Prouse courts feared: exercising unbridled discretion.
Because the circuit court’s order denying Pickle’s motion to suppress fails to address a necessary prong of analysis, we hold that the decision was against the preponderance of the evidence. Without a finding that the game wardens acted pursuant to a sufficient plan of explicit, neutral limitations, we must hold that the stop and search violated Pickle’s rights under the | ^Fourth Amendment and article 2, section 15. Accordingly, we reverse the circuit court’s denial of Pickle’s motion to suppress.
Reversed and remanded.
Pittman, Wynne, and Whiteaker, JJ., agree.
Gruber and Brown, JJ., concur.
Gladwin, C.J., and Walmsley and Glover, JJ., dissent. | [
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JIM HANNAH, Chief Justice
_JjAppellant Crafton, Tull, Sparks & Associates, Inc. (“CTSA”) appeals an order of the Washington County Circuit Court granting summary judgment in favor of appellees Ruskin Heights, LLC; Metropolitan National Bank (“Metropolitan”); William B. Benton, Jr.; J. Kevin Adams; Edward A. Labry, III; John G. Britting-ham; Carien G. Hooker; Edward F. Davis; Dirk W. Van Veen; and David Ruff, in his official capacity as Tax Collector for Washington County. For reversal, CTSA argues that the circuit court improperly refused to grant its lien priority over Metropolitan’s mortgage lien that was recorded after construction | ¡.commenced. CTSA also asserted that its lien should relate back to the commencement of construction. We have jurisdiction pursuant to Arkansas Supreme Court Rule 1-2(a)(7)(2014), as we have dismissed two previous appeals. See Crafton, Tull, Sparks & Assocs. v. Ruskin Heights, LLC, 2013 Ark. 85 (“Crafton II”) (dismissing without prejudice for lack of a final order); Crafton, Tull, Sparks & Assocs. v. Ruskin Heights, LLC, 2012 Ark. 56, 2012 WL 401611 (“Crafton I”) (dismissing without prejudice for lack of a final order). We affirm.
An extensive recitation of the facts and procedure was set forth in Crafton I, 2012 Ark. 56, and we provide the relevant facts concerning this appeal. On September 17, 2007, Metropolitan and Ruskin Heights executed a promissory note and loan agreement for $8,606,250 to finance construction of a residential subdivision on real property located in Washington County. As security for the note, Ruskin Heights executed a mortgage on the real property in favor of Metropolitan. In addition, William B. Benton, Jr.; J. Kevin Adams; Edward A. Labry, III; John G. Brittingham; Carien G. Hooker; Edward F. Davis; and Dirk W. Van Veen executed personal guarantees.
Nabholz Construction Company began construction on the project on the morning of October 1, 2007, and Metropolitan filed its mortgage that afternoon. CTSA subsequently began working on the project for Ruskin Heights. On September 25, 2009, Jim Tull, CTSA’s chief financial officer, filed an “Architect’s and Engineer’s Account and Affidavit of Account” stating that Ruskin Heights owed CTSA $37,239.45. Ruskin Heights received notice of CTSA’s lien filing on September 28, 2009. The $37,239.45 balance remained unpaid. Meanwhile, on August 3, 2009, Metropolitan filed a foreclosure complaint alleging | abreach of note and breach of guaranties against Ruskin Heights; William B. Benton, Jr.; J. Kevin Adams; Edward A. Labry, III; John G. Brittingham; Carien G. Hooker; Edward F. Davis; Dirk W. Van Veen; and David Ruff in his official capacity as Tax Collector for Washington County.
On November 2, 2009, CTSA filed a complaint asserting an engineer’s lien against Ruskin Heights. Thereafter, on December 7, 2009, the circuit court granted CTSA’s motion for consolidation and joinder of the two complaints. On December 14, 2009, CTSA filed an amended complaint against Ruskin Heights and Metropolitan. CTSA requested (1) that its lien and that Nabholz’s lien be declared superi- or to any lien or claims by Metropolitan and Ruskin Heights and (2) that CTSA be awarded a monetary judgment against Ruskin Heights and others. On September 10, 2010, CTSA filed a motion for summary judgment as to its claims against Ruskin Heights and Metropolitan, which it amended on September 24, 2010. In addition, Metropolitan filed a cross-motion for summary judgment against CTSA on September 10, 2010. After two hearings on the matter, the court held a final hearing on October 26, 2010, in which it ruled from the bench that CTSA had an engineering and architectural lien against the property at issue; that CTSA’s lien did not have priority over Metropolitan’s mortgage lien; and that CTSA’s lien did not relate back to the date of construction.
On November 29, 2010, the circuit court entered a partial judgment and decree, finding that Ruskin Heights had defaulted and owed Metropolitan damages; that Metropolitan’s mortgage lien was valid and enforceable; that Metropolitan had first priority |4as to any lien claim by Nabholz or CTSA; and that CTSA had a second lien on the property. CTSA filed a notice of appeal from the order on December 10, 2010. Thereafter, on December 13, 2010, the circuit court entered an order granting Metropolitan’s motion for summary judgment against CTSA and denying CTSA’s motion for summary judgment against Metropolitan. In its order, the circuit court ruled that the “Architect’s and Engineer’s Liens are not given the same priority under [Arkansas Code Annotated section] 18^44-105 as Materialmen’s [sic] and Laborer’s Liens,” and further found that “CTSA’s Architect’s and Engineer’s Lien did not attach to the property until August 25, 2009, which [was] the date CTSA’s lien was filed of record.”
CTSA appealed from the November 29, 2010 order finding that CTSA’s lien was second in priority to Metropolitan’s lien. In Crafton I, 2012 Ark. 56, we dismissed the appeal without prejudice for lack of a final order and identified the outstanding issues. On remand, the circuit court entered an order stating that certain parties and actions remained unresolved. CTSA appealed the November 29, 2010 order finding that CTSA’s lien was second in priority to the bank’s lien. We again dismissed without prejudice for lack of a final order on the basis that the order still contained unresolved issues and that the record lacked certain relevant pleadings. See Crafton II, 2013 Ark. 85.
On remand, on February 27, 2014, the circuit court entered an order dismissing 15Nabholz’s complaint in intervention and all remaining claims and cross-claims with prejudice. That same day, the court also entered a final judgment finding that the parties had not litigated or pursued any claims since May 2012 and that such claims were deemed to be dismissed for failure to prosecute. CTSA timely filed its notice of appeal, and we now consider the parties’ arguments before us.
For the first point on appeal, CTSA argues that the circuit court erred in granting summary judgment on the issue of lien priority. Specifically, CTSA contends that the court failed to grant its engineer’s lien priority over a mortgage filed after construction had commenced. CTSA asserts that the circuit court incorrectly interpreted the engineer’s lien statute, Arkansas Code Annotated section 18-44-105 (Supp. 2013), in connection with Arkansas Code Annotated section 18-44-110 (Repl. 2003). CTSA further maintains that its September 25, 2009 lien should have related back to the morning of October 1, 2007, when construction commenced, thereby giving it priority over Metropoli tan’s mortgage lien, which was filed in the afternoon of October 1, 2007. For the second point on appeal, CTSA argues that section 18-44-110 removes any distinction between its engineer’s lien and the materi-alman’s lien and reiterates that CTSA’s lien should relate back to the commencement of construction and should have priority over Metropolitan’s mortgage. Because these are related points, we discuss them together.
Generally, on appeal from a summary-judgment disposition, the evidence is viewed in the light most favorable to the party resisting the motion, and any doubts and inferences are resolved against the moving party. Ark. State Bd. of Election Comm’rs v. Pulaski Cnty. Election Comm’n, 2014 Ark. 236, 437 S.W.3d 80. However, when the parties agree on the facts, we simply determine whether the appellee was entitled to judgment as a matter of law. See id. When parties file cross-motions for summary judgment, as was done in this case, they essentially agree that there are no material facts remaining, and summary judgment is an appropriate means of resolving the case. See id. As to issues of law presented, our review is de novo. See id.
CTSA and Metropolitan present the issue of lien priority as an application of both the materialman’s and engineer’s lien statutes. As background, engineer’s liens were created by the legislature in 1971, enacted by Act 291 of 1971, and are codified at Arkansas Code Annotated section 18-44-105 (Repl. 2003). The distinction between engineer’s liens and material-man’s liens was first noted by this court in Mahaffey & Assocs. v. Brophy, 249 Ark. 884, 462 S.W.2d 226 (1971), in which this court declined to extend the materialman’s lien statute to an engineer who performed engineering and surveying services. This court distinguished the type of services that engineers provide in connection with real estate. See id.
The sole issue on appeal involves our statutory interpretation of sections 18-44-105 and 18^4-110. This court reviews the circuit court’s statutory interpretation de novo, because it is for this eourt to determine the meaning of a statute. Roberson v. Phillips Cnty. Election Comm’n, 2014 Ark. 480, 449 S.W.3d 694. The first rule of statutory construction is to construe the statute just as it reads, giving the words their ordinary and usually accepted meaning in common language. See id. We construe statutes so that, if possible, every word is given meaning and effect. See id. If the language of a statute is clear and unambiguous and |7conveys a clear and definite meaning, it is unnecessary to resort to the rules of statutory interpretation. See id. When a statute is clear, it is given its plain meaning, and this eourt will not search for legislative intent; rather, that intent must be gathered from the plain meaning of the language used. See id. Statutes relating to the same subject should be read in a harmonious manner if possible. See id.
Section 18-4-105, the engineer’s lien statute, provides as follows:
(a) Every architect, engineer, surveyor, appraiser, landscaper, abstractor, or title insurance agent who shall do or perform any architectural, engineering, surveying, appraisal, landscaping, or abstracting services upon any land, or who shall issue a title insurance policy or provide landscaping supplies upon any land, building, erection, or improvement upon land, under or by virtue of any written agreement for the performance of the work with the owner thereof, or his or her agent, shall have a lien upon the land, building, erection, or improvement upon land to the extent of the agreed contract price or a reasonable price for those services.
(b)(1) However, the lien does not attach to the land, building, erection, or improvement upon land unless and until the lien is duly filed of record with the circuit clerk and recorder in the county in which the land, building, erection, or improvement is located.
(2) The lien shall be:
(A) Subject to the notice requirements of §§ 18-44-114 and 18-44-115;
(B) Filed under § 18-44-117; and
(C) Enforced under this subchapter.
(Emphasis added.) Lien statutes are in derogation of the common law and must be strictly construed. BB & B Constr. Co., Inc. v. F.D.I.C., 316 Ark. 663, 875 S.W.2d 48 (1994); Lambert v. Newman, 245 Ark. 125, 431 S.W.2d 480 (1968); Dix v. Olds, 242 Ark. 850, 415 S.W.2d 567 (1967).
| sBased on our de novo standard of review, we strictly construe section 18-44-105 and interpret the plain meaning of the statute, which dictates that engineers shall have a lien, but that lien “does not attach to the land, building, erection, or improvement upon [the] land unless and until the lien is duly filed of record.” (Emphasis added.) Here, CTSA filed its hen on September 25, 2009, and Ruskin Heights received notice of CTSA’s filing on September 28, 2009. Thus, we hold that CTSA’s engineer’s lien attached on September 25, 2009, when it was duly filed of record.
CTSA asserts that, pursuant to section 18-44-105, its engineer’s lien can relate back to the date that the construction commenced under a relate-back provision contained in section 18-44-110. Section 18-44-110 provides in its entirety as follows:
(a)(1) The liens for labor performed or material or fixtures furnished, as provided for in this subchapter, shall have equal priority toward each other without regard to the date of filing the account or lien or the date when the particular labor or material was performed or furnished. All such liens shall date from the time that the construction or repair first commenced.
(2) Construction or repair commences when there is a visible manifestation of activity on real estate that would lead a reasonable person to believe that construction or repair of an improvement to the real estate has begun or will soon begin, including, but not limited to, the following:
(A) Delivery of a significant amount of lumber, bricks, pipe, tile, or other building material to the site;
(B) Grading or excavating the site;
(C) Laying out lines or grade stakes; or
(D) Demolition in an existing structure.
(3) In all cases in which a sale shall be ordered and the property sold, and the proceeds arising from the sale are not sufficient to discharge in full all the liens against the property without reference to the date of filing the account or lien, the proceeds shall be paid pro rata on the respective liens.
(b) (1)(A) The liens for labor performed or materials or fixtures furnished, as provided for in this subchap-ter, shall attach to the improvement on which the labor was performed or the materials or fixtures were furnished in preference to any encumbrance existing on the real estate prior to the commencement of | construction or repair of the improvement.
(B) In all cases in which the prior encumbrance was given for the purpose of funding construction or repair of the improvement, that lien shall have priority over all liens given by this subchap-ter.
(2) The liens, as provided for in this subchapter, shall be enforced by foreclosure, as further provided for in this sub-chapter, and the property ordered sold subject to the lien of the prior encumbrance on the real estate.
(c) The lien for labor performed and materials or fixtures furnished, as provided for in this subchapter, shall have priority over all other encumbrances that attach to the real estate or improvements thereon subsequent to commencement of construction or repair.
(Emphasis added.)
Here, contrary to CTSA’s assertions, we do not read section 18-44-110 to expand the priority-lien privilege to include engineer’s liens. Section 18-44-110(a)(1) contains the sentence, “All such liens shall date from the time that the construction or repair first commenced,” but that sentence does not apply to all liens contained in the code’s subchapter entitled, “Mechanics’ and Materialmen’s liens” as CTSA suggests. Rather, “all such liens” in section 18-44-110(a)(1) specifically modifies “[t]he liens for labor performed or material or fixtures furnished” contained in the first sentence of section 18-44-110(a)(1). In other words, the “[a]ll such liens” language in section 18-14-110(a)(1) refers to materialmen’s, laborer’s, and mechanics’ liens contained in the sub-chapter — not an engineer’s lien, which the legislature set forth separately in section 18-44-105. Further, section 18-44-110(a)(1) expressly gives equal priority to materialmen’s, laborer’s, and mechanics’ liens “without regard to the date of filing,” while section 18-14-105(b)(l) specifically states that engineer’s liens attach upon filing. Thus, given a strict construction of section 18-44-110, we conclude that any relate-back provisions in section 18-14-110 do not apply to engineer’s liens and that | msection 18-44-110 does not allow for an engineer’s lien to relate back to the date of construction. Based on our de novo interpretation of sections 18-44-105 and 18-44-110, we hold that the circuit court properly granted summary judgment as a matter of law by finding that Metropolitan’s lien, filed on October 1, 2007, had priority over CTSA’s engineer’s lien, filed on September 25, 2009.
We decline to reach CTSA’s second argument regarding legislative intent. We have stated repeatedly that if a statute is clear, we will not search for the legislative intent; rather, the intent must be gathered from the plain meaning of the language used. Ark. Dep’t of Econ. Dev. v. William J. Clinton Presidential Found., 364 Ark. 40, 53, 216 S.W.3d 119, 128 (2005); Weiss v. Geisbauer, 363 Ark. 508, 215 S.W.3d 628 (2005); Cave City Nursing Home, Inc. v. Ark. Dep’t of Human Servs., 351 Ark. 13, 89 S.W.3d 884 (2002). While we recognize that the parties argued this issue in their briefs, we have already determined the plain meaning of sections 18-44-105 and 18-44-110, and we do not reach CTSA’s second argument. Because we hold that section 18-44-110 is inapplicable to the case at bar, we do not address CTSA’s argument regarding its labor as satisfying the “visible manifestation of activity” requirement of section 18-14-110.
Affirmed.
. We note that the circuit court’s December 13, 2010 order contained a scrivener’s error. In its order, the court stated that CTSA’s engineer’s lien was filed on August 25, 2009, but the record reveals that CTSA’s lien was recorded on September 25, 2009. We adhere to the September 25, 2009 date. | [
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Hart, J.,
(after stating the facts). In its motion to quash the service of summons upon it the Beal-Doyle Dry Goods Company alleged that it is a corporation organized under the laws of the State of Arkansas; that its principal place of business is in Pulaski County, and that its chief officer resides in Pulaski County, Arkansas; that it is not situated in Clay County and that the summons in this case was served upon it in Pulaski County. These allegations are not denied, and it follows that, under section 6067, Kirby’s Digest, the suit should have been brought against the defendant in Pulaski County, Arkansas. The Acts of 1909 provide that domestic corporations who keep or maintain in any of the counties of this State a branch office or other place of business shall be subject to suits in any of said counties and that service of summons shall be had upon the agent or employee in charge of its branch office in said county. Acts of 1909, page 293.
It is contended by counsel for the plaintiff that the record does not show but that the plaintiff had a branch office in Clay County and that service might have been had under this statute. This was an appeal from the judgment of the circuit court and the presumption in favor of the judgment that all the prerequisites of the law have been complied with, which applies in case of a collateral attack on the judgment does not apply in case of a direct attack on the judgment, as in case of an appeal therefrom. Walker v. Noll, 92 Ark. 148; Davis et al. v. Whittaker et al., 38 Ark. 435; St. Louis, I. M. & S. Ry. Co. v; State,. 68 Ark. 561.
It follows, then, that in order to obtain service on the defendant under the Acts of 1909, above referred to, the record should show that service of summons was had in compliance with the provisions of the act.
Counsel for the plaintiff also seek to uphold the judgment under section 6072, Kirby’s Digest, on the ground that Gallup, the codefendant of Beal-Doyle Dry Goods Company, resided in Clay County, and was served with summons there. In our statement of facts we have copied that portion of the complaint under which the plaintiff seeks, to hold the defendant, Gallup, liable for the rent. A careful reading of it will show that the plaintiff only alleges that Gallup was in the possession of the building as agent for the Beal-Doyle Dry Goods Company, and, therefore, no cause of action against him is alleged in the complaint. The answer of the defendant, Beal-Doyle Dry Goods Company, in the form and manner in which it was made was not a waiver of the service of summons upon it. W. T. Adams Machine Co. v. Castleberry, 84 Ark. 573, and cases cited.
It follows that the judgment must be reversed. The defendant, Beal-Doyle Dry Goods Company, having entered its appearance by its appeal, is now in court, and no further service on it is required. W. T. Adams Machine Co. v. Castleberry, supra; Waggoner v. Fogleman, 53 Ark. 181; Benjamin v. Birmingham, 50 Ark. 433; Gilbreath v. Kuykendall, 1 Ark. 50. | [
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McCulloch, C. J.
The indictment against the. defendant, George W. Sullivan, contained two counts, the first charging him with the crime of grand larceny by stealing two gin belts, of the value of $40 and $20, respectively, the property of one J. P. Parmer, and the other count charging him with receiving stolen property of said J. P. Parmer, knowing it to have been stolen. On trial of the case before a jury, defendant was found guilty of grand larceny under the first count.
The testimony adduced by the State tended to show that two belts, belonging to Parmer, were stolen from the latter’s gin house just across the State line in the State of Louisiana about the last of November, 1912, and that within a few days thereafter, Parmer and his son found the belts on the machinery of the gin operated by the defendant in Miller County, Arkansas. Parmer and his son, and another witness, identified the property as belts which had been recently stolen from his gin house in the State of Louisiana. When Parmer found his belts in possession of defendant, he asked the latter where he had gotten them, and defendant declined to state who he got the belts from, saying, according to the testimony, that he “got them from a dangerous man, a dangerous character,” and that he knew they were stolen belts when he bought them, because he had only paid about half-price for them.
There is a statute in this State with reference to the crime of larceny committed by bringing stolen property into the State, which reads as follows:
“Every person who shall steal or obtain by robbery the property of another, in any other State or country, whether the same be within the jurisdictional limits of the United States or not, and shall bring the same within this State, may be indicted, tried and punished for larceny, in the same manner as if such property had been feloniously stolen or taken within this State, and in any such case the larceny may be charged to have been committed in any county into or through which such stolen property may have been taken.” Section 2100, Kirby’s Digest.
■ In the recent case of Wilson v. State, 97 Ark. 412, the court, speaking of that statute, said:
“In order to convict under the statute, it must be shown that the person who committed the larceny in the first instance brought the property into this State, and in this way show a continuous felonious intent, which is necessary to give the courts of this State jurisdiction. If appellant had no connection with the original stealing, and his only connection with the crime was that of receiving the goods after they were stolen, he committed no crime under the statute in question.”
The court in its instructions to the jury properly defined the- offense, telling the jury that, in order to convict the defendant of larceny, they must find that he stole the property in the State of Louisiana and brought it into Miller County, Arkansas.
It is insisted, however, that the evidence is not sufficient to establish the fact that defendant was a party to the theft of the property in the State of Louisiana, so as to make him guilty of larceny in bringing it into this State.
A consideration of the testimony adduced convinces us, however, that defendant’s unexplained possession of the property shown to have been recently stolen, and his confession of a guilty knowledge of the theft were sufficient to warrant the jury in drawing the inference of fact that he was guilty of stealing the property himself and bringing it into this State. Gunter v. State, 79 Ark. 432; Douglass v. State, 91 Ark. 492; Wiley v. State, 92 Ark. 586; Jackson v. State, 101 Ark. 473.
We think that the case was properly submitted to the jury and that the evidence was sufficient to sustain the conviction.
There is another assignment of error in the overruling of defendant’s motion for a continuance.
He alleged in his motion that his son was an important witness, setting out material testimony which the witness would give, and alleged that the witness was in the State of Louisiana, but that his attendance could be procured at the next term of the court. He further stated in the motion that the witness, though his son, was unfriendly to him.
The motion sets up an unusual state of facts, in showing that the son, only a few months before, at the time of the commission of the offense, was with the defendant, his father, and on friendly terms, yet was unfriendly at the time of the trial, so that the defendant was not accountable for his absence. In Anew of the fact that defendant rested upon the mere statement of these things in his motion, Avithout any proof to establish this unusual condition Avith reference to alleged estrangement between father and son, we are of the opinion that it can not be said that the court abused its discretion in refusing to continue the case for the term. Matters of continuance are peculiarly within the discretion of the trial judge, and unless an arbitrary abuse of such discretion is affirmatively shown, the ruling of the court mil not be disturbed.
We are convinced that this case was fairly tried, and that the judgment should be affirmed. It is so ordered. | [
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Kirby, J.
Appellant brings this appeal to reverse the judgment of conviction of grand larceny for stealing a black cow, belonging to one Robert Boyd, contending that the evidence is not sufficient to support the verdict.
Tom Burke testified that Hughey was in the butcher business, and told him he was in shape to handle cattle, any that he could get, and if he couldn’t get them one way to get them another, and that they went out and caught a black heifer and left it at Hughey’s slaughter pen. “He gave me $6 or $7 and said if I went in with him he would divide the profits.” Hughey wasn’t with Burke when the animal was caught, nor when she was taken to the slaughter house after dark.
Robert Boyd testified that he missed the cow and was informed that it was at Hughey’s butcher shop, and that Tom Burke said he had taken the cow, knew it belonged to Boyd and that he brought it to Helena and let Sharp Hughey have it. Hughey claimed that he had bought the cow and paid for it.
Another witness saw the animal being skinned at the slaughter pen and appellant told him he had bought and paid $6 for it, and witness remarked that if he bought that cow so cheap it must have been stolen. The yearling was small, worth about $12, and he said he had paid $6 for it.
Appellant testified that he was in the butcher business, denied any understanding or agreement with Burke for stealing cattle and any knowledge that he had stolen the cow belonging to Boyd. Said he bought the animal from him, after having sent his son to the butcher pen, where Burke had carried it, to get an idea and estimate of its value. He told the officers when they came for Mm that he had purchased the cow and had a bill of sale for it, which he couldn’t at the time find, but later produced.
Appellant’s son corroborated him as to the purchase of the cow from Tom Burke; said he went to examine it after Burke had put the animal in the slaughter pen and told his father it was worth $8; that they had bought cattle before from Tom Burke. There is no testimony whatever tending to show that there was any agreement or understanding that tMs or any particular animal should be stolen and brought to appellant.
Appellant was not present, aiding, abetting and assisting in stealing the cow, and if he was in accord with the act and encouraged Tom Burke to steal cattle generally, as the evidence tends to show, he was at most an accessory before the fact of the larceny and could not be convicted upon an indictment for larceny. Roberts v. State, 96 Ark. 62; Corley v. State, 50 Ark. 313; Smith v. State, 37 Ark. 274; Williams v. State, 41 Ark. 173.
Neither can he be convicted upon an indictment for larceny of receiving stolen property, knowing it to have been stolen. Not being present aiding, abetting and assisting in the taMng and carrying away of the animal, the asportation of wMch was complete upon her delivery at the slaughter pen for inspection and sale, he was not guilty of the offense of larceny, and the testimony is insufficient to support the verdict.
The judgment is reversed and the cause remanded for a new trial. | [
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Smith, J.,
(after stating the facts). The law is settled that two directors may act for the district and hind it by their contract only at a meeting at which all the directors are present, or of which all have had notice. If notice of a meeting has been given, then the two directors present may act, although the third failed to attend the meeting. Neither is it necessary that any notice of a meeting be given if all the directors are present and participate in a meeting. Subject to these restrictions, the directors may meet at any time or place, and the law prescribes no procedure for the transaction of the business of the district when they have met. School District v. Bennett, 52 Ark. 511; Alex Marr v. School Dist. No. 27, Cleburne County, 107 Ark. 305, 154 S. W. 944. But there must be a meeting, the law contemplates that the directors shall have the power to contract in the name of the district, only after consultation and deliberation, and for this purpose requires the directors to meet. The mere presence together of the three directors is not a school meeting, where they have not met pursuant to notice, unless it is made so by the participation for that purpose of all the directors. A very similar question arose in the case of School District No. 49, Faulkner Co., v. Adams, 69 Ark. 162, where Justice Hughes for the court said:
“It was competent for two of the three school directors, being a majority of the school directors, if all were present and participated in the meeting, or had written notice of the time, place and purpose of the meeting as required by law, to make a legal contract to employ a teacher, by which the district would be bound; but without such notice or the voluntary presence of all the members of the board no legal contract could be made. Where a party or member of the board had no notice of the time, place, or purpose of the meeting, and two members of the board went to the residence of the other member and while he was present for some other purpose, and, not for the purpose of a meeting of the board of school directors and protested against their action as a board, as in this case, the two could make no contract to bind the district.” * * * “The corporate authority must be exercised by the proper body.”
The instructions given declare the law substantially as here announced and the instruction asked by appellant was properly refused for the reason that it told the jury the contract was a valid one if Morgan took any part in anything that was done at his residence, on the occasion above mentioned. The jury had the right to accept as true Morgan’s version of the conversation had between him and the other directors, yet this instruction would require the jury to find that Morgan participated in this meeting even though he did no more than suggest that the notices, when prepared, should submit to the electors the question of moving the schoolhouse.
Affirmed. | [
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Smith, J.,
(after stating the facts). Notwithstanding the reservation of title in the note herein set out, this was a negotiable note. It was an unconditional promise to pay a sum of money named and the recital of the consideration for which it was given, and the security reserved to insure its payment, did not destroy its negotiability. There was no option for the payment of anything but money and the reservation of title to the mules merely furnished a security for its payment which did not affect its negotiability. Third Nat. Bank of Buffalo v. Spring, 63 N. Y. Supp. 410. The rule in such cases and the reasons therefor are stated and discussed in the opinion in the case of Farmer v. Bank of Malvern, 89 Ark. 132.
It is well settled in this State that one who takes negotiable paper before maturity as security for a debt, without notice of any defect, receives it in due course of business and is a bona fide holder. Exchange Nat. Bank v. Coe, 94 Ark. 387; Haldiman v. Taft, 102 Ark. 45, 143 S. W. 112; Miles v. Dodson, 102 Ark. 422, 144 S. W. 908.
In this case, therefore, the bank’s right of recovery can be defeated only upon the theory that Steele had the right to make the payment to Eagle & Co. In the case of Koen v. Miller, 105 Ark. 152, 150 S. W. 411, it was said: “If the maker of a negotiable note pays the same to the payee, who is not the holder, he is not discharged from his obligation to the holder without showing that the payee was authorized to receive payment or that the holder led him to believe that he was so authorized.” And to the same effect is the case of Block v. Kirtland, 21 Ark. 393. But appellees insist that the facts of this case bring them within the exceptions stated in the Koen case, supra. We have quoted the evidence upon that subject, and when we have given it its highest probative value, in appellee’s favor, we think it insufficient to support the finding that Eagle & Co. was authorized to receive this payment or that the bank bad led appellees to so believe. There, is nothing in this'proof which would charge the bank with any knowledge that Eagle & Co. were making any collections for it or that they were taking any action in regard to the collateral notes not consistent with their use as collateral. The undisputed proof is that Eagle & Co. did a very extensive business and handled large sums of money and did only part of their banking business with appellant. The inference is unsupported by any legal evidence that the bank had any knowledge that Eagle was assuming to collect any of these collateral notes as appellant’s agent. The facts in the case of the State Nat. Bank of St. Louis v. Hyatt, 75 Ark. 170, are almost identical with the facts in the case at bar, and the reasoning of the court there applies with full force here, and the court there, speaking through Justice Reddick, said: “The fact that a note is made payable at a particular bank does not of itself make the bank the agent of the payee or holder to receive payment and payment to a bank of the amount due on the note made payable there, when the bank does not have posses-' sion of the note or authority to collect it, does not discharge the maker, for under such circumstances the bank will be treated as the agent of the maker and not the holder. ’ ’
Appellees insist that this case is similar to and should be governed by the rule announced in Ladenberg v. Beal-Doyle Dry Goods Co., 83 Ark. 440, but a study of the facts of the two cases show their dissimilarity. In the Ladenberg case the court found that the jury was warranted in finding from the evidence that the agency, if unauthorized, had been ratified, while under this evidence there is no question of ratification. There could be no safety, nor security, for a bank in lending money if its permission to its debtors to redeem particular collateral by paying the face value of such collateral should be held to be either a grant of authority to the debtor to collect other collateral, or a ratification of the debtor’s act in doing so. Transactions like those between appellant and Eagle & Co. are common and the conflict between their interests is such that no presumption of agency can be indulged, for if so, the value of the collateral as such would be destroyed and had as well be returned, for the bank then would have no protection except the sense of honor of its debtor. And we think the proof here was insufficient to warrant the submission of the question of agency to the jury. In fact, the issue of agency was not raised in the pleadings until after the conclusion of the evidence, when, over appellant’s objection, appellees were permitted to amend their answer by setting up that Eagle & Co. were appellant’s agents.
The judgment of the court is therefore reversed and the cause remanded. | [
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Smith, J.
The appellant was indicted for the crime of murder in the first degree, alleged to have been committed in the Greenwood District of Sebastian County, after premeditation and deliberation, by tying Rose Capps and Priscilla Capps in the bed, upon which they slept, and by then and there perpetrating the crime of arson by setting fire to and burning a certain house which they occupied, and which said house was under the control of the said Marion Capps, and thereby wilfully and feloniously caused the death of the said Rose Capps and Priscilla Capps by then and there causing them to be burned to death. The venue was changed to the Fort Smith District, and, upon a trial there, appellant was found guilty and appeals to this court from the judgment sentencing him to hang. A number of exceptions were saved at the trial and are assigned here as error calling for the reversal of the case. Among other grounds upon which a reversal is asked are the discovery of new evidence and the insufficiency of the evidence, but in view of the fact that the case will be reversed for another reason, we do not discuss those assignments of error. No exceptions were saved to any of the instructions, and, as the other errors complained of are not likely to occur at another trial, we discuss only the error, which in our judgment calls for the reversal of the case, and this error is the misconduct of the jury in reading, and in being permitted to read, newspaper articles relating to the trial.
It was also objected that the verdict of the jury was insufficient to support a judgment imposing the death sentence for the reason that it did not declare the degree of the homicide of which the defendant was guilty. Section 2409 of Kirby’s Digest reads as follows:
‘ ‘ The jury shall, in all eases of murder, on conviction of the accused, find by their verdict whether he be guilty of murder in the first or second degree; but if the accused confess his guilt, the court shall impanel a jury and examine testimony, and the degree of crime shall be found by such jury. ’ ’
The judge in his charge to the jury gave them the following directions:
“Gentlemen: If you find the defendant guilty of murder in the first degree, the crime with which he is charged in the indictment, write your verdict, ‘We, the jury, find the defendant guilty as charged in the indictment. ’
“If you find him guilty of murder in the second degree, write your verdict, ‘We, the jury, find the defendant guilty of murder in the second degree, and assess his punishment at a term in the State penitentiary of not less than five nor more than twenty-one years, the time to be fixed by you, not less than five nor more than twenty-one years.’
“If you find the defendant not guilty, write your verdict, ‘We, the jury, find the defendant not guilty.’
“If you find him not guilty on the ground of insanity, state that fact in your verdict. ’ ’ ■
The jury returned the following verdict: “We, the jury, find the defendant guilty as charged in the indictment.” It is contended, that, although this verdict, read by itself, does not state the degree of the homicide, it is yet made definite and certain by reference to the charge of the court; that the verdict returned employed exactly the language which the court directed to be used in the event appellant was found guilty .of murder in, the first degree. The courts are divided on the question of the sufficiency of such verdicts, and eminent authority could be cited upon both sides of the question of the sufficiency of this verdict. Unquestionably the verdict would be insufficient except by reference to the charge of the court, but, as w7e are reversing the case upon another ground, we pretermit any discussion of its sufficiency here as that question is not likely to arise upon another trial.
The newspaper articles complained of were published in the Fort Smith Times-Record, and the Southwest American, daily papers published in that city, and each was shown to have had a large circulation. The foreman of the jury testified upon the hearing of the motion for a new7 trial that he and other jurors read these articles. But this evidence was not competent for that purpose and would be insufficient to support a finding that members of the jury had read these articles, because jurors are not thus allowed to impeach their verdict. Section 2423 of Kirby’s Digest; Wilder v. State, 29 Ark. 293. Smith v. State, 59 Ark. 132; Hampton v. State, 67 Ark. 266. But the finding that the papers had been read by the jury did not depend alone upon the affidavit of the jurors, as the officer in charge of the jury and the proprietor of the hotel at which the jury was being entertained testified that the jurors bought these papers and some of the jurors read them, and that other jurors had access to the daily papers belonging to the hotel and read them as other guests did. These, articles were very lengthy, extending over several columns of each of these papers, and we will not set them out, in extenso, but copy the following excerpts from them:
(Fort Smith Times-Record):
“HEARS HIS CHILDREN TELL HOW HE TRIED TO BURN THEM TO DEATH IN THEIR BEDS.
‘ ‘ Calmly and dispassionately Bertha and Ellis Capps told the jury in the circuit court this morning a story that, if not broken down, will send their father, Marion Capps, to the electric chair, that mode of capital punishment having been substituted by the present legislature for hanging.
“the elame-scarred brother.
“Ellis Capps, aged fourteen years, bore plainly the evidence, of his close call from death in the flames in scars that disfigured his forehead and hands and mutilated one ear. His testimony did not materially differ from that given by his sister.
“NEIGHBOR TESTIEIED TO ROPE—CAPPS REARED MOB.
“Wiggington says Capps expresses desire for officer to make haste to get him to a place of safety, as it was horrible affair and was afraid neighbors do him bodily harm. ’ ’
And the following excerpts are taken from the Southwest American:
‘ ‘ Children testify that father murders three by firing home, other witnesses for the State told of finding ashes held in perfect form of charred rope, across the breast of the children who met death in the house. ’ ’
“Judge Harp was scored by the court by the non-arrival of a witness from Jenny Lind, whose absence caused a halt in the case. Shortly afterward, when counsel. attempted to place on stand a witness who had been given the privilege of court room throughout hearing, Judge Hon again grew warm in his remarks.to Judge Harp, and said condemned counsel’s action in case of missing witness as well as in other case.”
“on CROSS EXAMINATION WIGGINGTON.
“Said he saw big oil can in the ruins. The top dented, no flames issuing from the holes. The prosecution contends that this proves the can had been emptied of oil and that there was no explosion. Had there been an explosion the State asserts the .can would have been torn and battered.”
“Every one of the three witnesses who testified at the morning session gave startling testimony.
“In fact their stories constitute a series of sensa-tions. Hardly had the audience recovered from the surprising recital of fifteen-year-old Bertha Capps, than Ellis, aged fourteen, droopy-eyed and weary, his hands and face disfigured by the ravages of the fire and standing as mute evidence of the child’s horrible experience, startled the spectators with his testimony. The story of the children corroborated in detail, but with one or two minor exceptions, both related their testimony in a straightforward manner and every neck in the room was stretched so that not a word would escape the listener.
“Their testimony was delivered without emotion, except toward the closing part of the girl’s cross examination when her answers became haughty and snappy. She finally broke into tears as she dramatically exclaimed, after she had given shocking testimony, that ‘I would tell the same story if I was on my dying bed.’
“Despite the insistent and repeated efforts of counsel for the defense to shake stories of the children the youthful witness remained firm. Said father read them twentieth chapter of St. John from the Bible. She did not know that the subject dealt with the resurrection.”
It is always improper for a juror to discuss a. cause, which he is trying as a juror, or to receive any information about it except in open court and in the manner provided by the law. Otherwise some juror might be subjected to some influence, which would control his judgment, something might be 'communicated to him which would be susceptible of some simple explanation which could not be made because of the ignorance of the influence to which the juror had been subjected. But while jurors should never read the newspaper accounts of the progress of the trial for fear they might be influenced by something which was not in evidence and which had not occurred in the view of the jury, yet the mere reading of a newspaper account of a trial does not necessarily call for the reversal of the case, if the article contained nothing of an unfair or prejudicial character and gave no intimation to the jury of the effect of any evidence, or the weight given to it by the public. People v. Leary, 105 Cal. 486, 39 Pac. 24; People v. Gafney, 1 Sheld. 304, note 6, 50 N. Y. 416; Commonwealth v. Fisher, 134 Am. Stat. Reports, 1056. A leading case upon the subject of newspapers read by the jurors engaged in a trial, and the effect of such conduct upon the part of the jurors, is the case of Styles v. State, 12 Am. & Eng. Ann. Cases, 176, 129 Ga. 425, and in this case Justice Atkinson, speaking for the court, said: “The State is jealous of the rights and liberties of its people. When one of its citizens is accused of crime, it throws around him all safeguards possible in order to procure for him a fair and impartial trial. It requires the officer who has charge of the particular jury to swear in substance in open court to take them to the jury room and there keep them safe, and not to communicate -with them himself or suffer any one else to communicate with them, unless by leave of the court. The law contemplates when a jury is selected and sworn to try a citizen for felony they shall be entirely separate from the world and that no communication whatever shall be had with them from the beginning of the trial until the verdict is reached, unless by leave of the court. It contemplates that no outside influence shall be brought to bear on the minds of the jury, and that nothing shall occur outside of the trial which shall disturb their minds in any way; that the minds of the jury shall be entirely occupied with the consideration of the case which they are sworn to try.” It will be observed that the oath taken by the officer in charge of the jury in that State is very similar to the oath which the court administers to the officer in charge of the jury, upon each adjournment of the court, in this State. Section 2390, Kirby’s Digest. And the court there further said: “When a juror enters upon the trial of a crimi nal case, the law contemplates his withdrawal from the public and makes no provision for addresses to him from outside sources, for his entertainment or otherwise, which are calculated directly or indirectly to excite any passions or emotions with respect to the matter upon which he is to sit in judgment. Perfect impartiality in the juror is the object of the law. Anything not legitimate, arising out of the trial of the case which tends to destroy the impartiality of the juror, should be discountenanced.” And in the same opinion the following language was quoted with approval from the case of Cartwright v. State, 71 Miss. 82, 14 Southern, 526: “That this method of communicating to and impressing upon the jury, or any member of it, the opinion of.others is open to the same condemnation which would be visited upon oral expression of opinion touching a defendant injected into the body of the jury by some designing intermeddler. The widely read and influential daily journal, speaking for, as well as to the public, reflecting public sentiment as well as making it, must be held to be much more powerful in influencing the average man than any expression of opinion by a single private individual. ’ ’ And in the note to this Style case, supra, the following language is quoted from the case of State v. Caine, 134 Iowa, page 147, 111 N. W. 443:
“The accounts were written in a somewhat sensational manner, though not perhaps objectionable as news intended for the general public. They were not confined to verbatim reports of the testimony of the witnesses, but to a large extent consisted of condensed accounts of what was testified to by the witnesses, and statements of the facts involved, some of them not shown by any evidence in the case. However fair these' accounts may have been, and for the most part they were unobjectionable as a current report of the proceedings, they were communications with reference to the case which the jurors should not have received. The only discussions of the evidence which the jurors should have an opportunity to consider, before they are secluded for ■deliberation on their verdict, are discussions in open court by the attorneys of each party in the presence of those for the other, in -which errors of statement may be corrected and improper inferences may be controverted. The jurors should not subject themselves to the danger of misconception and error which must exist if outside persons without the checks incident to an orderly trial and discussion in court are allowed to sum up the evidence, emphasize its particular features, and suggest the conclusions to be drawn therefrom.”
It will be observed that the language employed in the first quoted newspaper article is not a verbatim report of the evidence of any witness, but is a statement in narrative form of the reporter’s understanding of it. It will be observed, too, that it communicates to the jury ■the paper’s estimate of its sufficiency for the article in the Times-Record contains the statement that the evidence if not broken down would send the appellant to the electric chair, and also states the opinion that the evidence of Ellis Capps, a son of appellant, did not materially differ from that given by his sister, although the defense contended that neither the boy nor the girl should be believed because of inconsistencies in their statements and contradiction contained therein. The article in the Southwest American is open to substantially the same .objections, and calls especial attention to a circumstance in proof which was regarded by the State as highly significant, and that is that the can, which had contained the oil, supposed to have been used in saturating the bed upon which the children had been sleeping, had not exploded, and that, therefore, the oil had been poured out of the can before the fire occurred. The article in the American also advised the jury that the public was startled by the sensational character of the evidence and that the appearance of the boy bore mute evidence of his horrible experience and the consequent truthfulness of his story. It also stated that the evidence of the daughter was given without emotion, except towards the closing •part she became haughty and snappy, while the theory of the defense was that the girl entertained great animosity towards her father and had made many conflicting statements. The American’s article also contained the statement that counsel for the defense had been unsuccessful in their attempt to shake the story of the children, but that they had remained firm in them, the inference necessarily being that they were therefore true.
We believe these articles were prejudicial because they were not a mere narration of the evidence connected with the trial which had occurred within the view of the jury and that their necessary effect was to convey to the jury the information that public sentiment had crystallized into the conviction that appellant was guilty of the horrible crime of which he was charged; that his. children had stood the ordeal óf a searching cross examination and yet remained firm because, as intimated by the papers, their story was true. These were improper influences, and we can not know what effect they may have had upon the minds of the jury, and no attempt was made to show that the jury was not influenced thereby, and we, therefore, reverse this judgment and remand the cause for a new trial. | [
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Hart, J.,
(after stating the facts). - In several of the States, by statute, actions of ejectment may be brought against persons claiming title to or any interest in real property although not in possession. Counsel for the plaintiffs, to reverse the judgment, have cited decisions under these statutes but they have no application here. Under our statutes in order to entitle the plaintiff to recover in an action of ejectment he must show that he had title to the premises claimed and that the defendant was in possession of same at the time of the commencement of the action. Kirby’s Digest, § 2745.
Again, it is contended by counsel that the plaintiffs are entitled to maintain the action because the lands are wild and unimproved and the defendants and their grantors, under color of title, have paid the taxes on the same from the year 1867 to the time of the commencement of the action in 1904. In support of this contention they rely upon the act of March 18,1899 (section 5057, Kirby’s Digest), and the decisions of this court construing the same. The act provides that unimproved and unenclosed land shall be deemed and held to be in possession of the person who pays taxes thereon if he have color of title thereto. Prior to the passage of this act, the court held that the payment of taxes and the assertion of the exclusive right to land do not constitute possession or disseize the holder of the true title. Brown v. Bocquin, 57 Ark. 97. The question of whether or not this rule has been changed by the passage of the act of 1899, above referred to, is the most serious question of law raised by this appeal, and is one that has given us the gravest concern.
In construing the act of 1899, in the case of Towsen v. Denson, 74 Ark. 302, the court held that the payment of taxes on wild and unimproved land, under color of title, constitutes possession of each successive year in which payment is made, provided, however, that such payments be continued for at least seven years in succession and not less than three years after the passage of the act. The act has been construed in subsequent decisions of the court and it has been uniformly held that the payment of taxes for the full period of time and under the conditions in the statute is equivalent to possession. It is true that in some cases, as in Taylor v. Leonard, 94 Ark. 122, the court says that the act makes the payment of taxes under the condition named in it a constructive possession, but in doing so the court evidently is using the term “constructive possession” as distinguished from actual or pedal possession; for in several cases the court speaks of the payment of taxes for the period and under the conditions prescribed by the statute as being equivalent to possession or as being possession itself.
In actions of ejectment the plaintiff can recover only upon the strength of his own title, and not upon the weakness of his adversary’s. The reason is that possession is always prima facie evidence of title and a party can not be deprived of his possession by any person but the rightful owner who has the right of possession. Dawson v. Parham, 47 Ark. 215. This rule has been reaffirmed in many later decisions of this court. It is equally well settled that the title to real property may be settled in an action of ejectment and where the title is put in issue by the pleadings the verdict and judgment are final and conclusive as to the title. Since this is true, and since the court has held that payment of taxes for the- time and in the manner prescribed by the act of 1899, above referred to, is equivalent to possession, there is no longer any reason for holding that actual or pedal possession by the defendant is an indispensible prerequisite to the right of the plaintiff to bring an ejectment suit against him. And we hold that the holding in Brown v. Bocquin, to the effect that the payment of taxes and the assertion of the exclusive right to land do not constitute possession, has been changed by the act of 1899 under consideration.
The plaintiffs, Mattie Fruit, Melissa Long and Rachel Brown, were married women at the time the act of March 18, 1899, was passed, and their coverture continued until the commencement of 'this suit, therefore, their right to recover is not barred by the statute of limitations. Deane v. Moore, 105 Ark. 309, 151 S. W. 286, and cases cited; Taylor v. Leonard, supra.
A. W. Brasher and Byron Woolridge have not been under any disability and the remaining question is whether their right of recovery is barred. The parties to this suit claim title from- a common source. It is true the deed of T. J. Brasher purported to convey the entire tract of land, but as he had only an undivided one-fifth interest in the land, the effect of his deed was to convey his interest. In the case of Singer v. Naron, 99 Ark. 446, the court said:
“The reason that the possession of one tenant in common is prima facie the possession of all, and that the sole enjoyment of the rents and profits by him does not necessarily amount to a disseizin, is because his acts are susceptible of explanation consistent with the true title. In order, therefore, for the possession of one tenant in common to be adverse to that of his cotenants, knowledge of his adverse claim must be brought home to them directly or by such notorious acts of an unequivocal character that notice may be presumed. ’ ’
It is true that the deed of T. J. Brasher was recorded, but iu accordance with the ruling in the case of Singer v. Naron, supra, the record of a deed which is not in the line of a party’s title is not constructive notice to him. Actual possession of the' land was not taken by defendants so as to bring them within the rule announced in Parsons v. Sharpe, 102 Ark. 611, where the court quoted with approval the following:
“The conveyance by one cotenant of the entire estate gives color of title; and if possession, is taken, and the grantee claims title to the whole, it amounts to an ouster of the cotenants, and the possession of the grantee is adverse to them.”
There is nothing in the record to show that the plaintiffs had actual knowledge that T. J. Brasher had conveyed the entire tract of land to the defendants or their predecessors in title. The fact that the plaintiffs never paid any taxes on the land and made no efforts whatever to assert their title to the land during the long period of time that the taxes were paid by the defendants and their grantors raises a strong presumption that they recognized the claim of title of the defendants and their grantors as superior to their own, or, at least, that they had abandoned any claim of their own to the land, but this is a presumption of fact and does not become a conclusive presumption of law. Therefore, we hold that under the facts as disclosed by the record the question of the adverse possession of the defendants as against the plaintiffs, A. W. Brasher and Byron Woolridge, should have been submitted to the jury. The circuit court did not attempt to pass upon this question but declared as a matter of law that an action of ejectment could not be maintained by the plaintiffs against the defendants, evidently basing his holding on the ground that because the defendants were not- in actual or pedal possession of the land an action of ejectment could not be maintained against them.
It follows that the judgment must he reversed and the cause remanded for a new trial.
Kirby, J., dissents.
McCulloch, C, J., disqualified and not participating. | [
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Hart, J.,
(after stating the facts). It is contended by counsel for appellant that the bill of lading was the contract of shipment between the parties to this suit, and that parol evidence to show a custom of delivering the carload shipments at a designated place next to the sheds of appellee was incompetent because it tended to vary or contradict the written instrument. In the case of Arkadelphia Milling Co. v. Smoker Mdse. Co., 100 Ark. 37, the court said:
“The liability of the common carrier ceases with delivery of the goods at the point of destination according to the directions of the shipper, or according to the usage and custom of the trade at such place of destination.”
Barton was a small station on appellant’s line of railroad. It had no warehouse in which to store freight. It had a small platform on which it delivered small lots of freight. Appellee was the principal shipper at that point, and appellants had built a private spur track run ning next to the sheds at the rear of appellee’s mill, and this spur track was for the exclusive use of appellee. The testimony shows that it was the custom of appellant to deliver carload shipments to appellee by spotting the cars on this spur track next to appellee’s shed. This was an established custom, recognized both by appellants and appellee. The place of unloading was within the limit of the station grounds at Barton, and the proof of these facts did not tend to vary or contradict the bill of lading, and was not, therefore, incompetent. A general custom of the business or a well established usage at the place of delivery becomes a part of the contract and governs as to the place, time and mode of making the delivery. Elliott on Railroads, (2 ed.), vol. 2, § 710.
It is next contended by counsel for appellants that they had delivered the cotton to appellee, and that they were no longer liable as carrier when the cotton was destroyed by fire. . We can not agree with them in this contention. This case is not like the case of Rothchild Brothers v. Northern Pacific Railway Co., 68 Wash. 527, 40 L. R. A. (N. S.) 773, 123 Pac. 1011. There, not only had the bill of lading been surrendered, but the car had been spotted on the delivery track before the fire occurred. Here the car had not been spotted at the place where appellee had requested the cotton to be delivered, but, on the contrary, appellants’ agents had agreed to place it there on the next day according to the existing custom. Appellee had not received the cotton, but had gone into the car only for the purpose of taking out cotton for its immediate use, and it was understood that the remaining cotton should be spotted on the track next to its shed before it would be unloaded. This was in accordance with the established usage between the parties. There was also a definite and recognized custom between appellants and appellee that weekly payments of freight would be made and receipts given for the goods, whether they had arrived or not, and in conformity with, this custom between appellants and appellee, the payment of freight was made and the receipt for the cotton signed. Under these circumstances, it can not he said, that appellants had delivered the cotton to appellee, and that it had accepted it.
The case was submitted to the jury under proper instructions, and the judgment will be affirmed. | [
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Frauenthal, J.
This was an action originally instituted by Martha Smith to set aside and cancel conveyances executed by her for a tract of land'in Pulaski County, upon the ground that they were obtained by. fraud. During the pendency of the suit, and after she had given her testimony in the case, Martha Smith died, and this suit was revived in the name of her representative. She had been twice married, and by her first husband she had a son named Corrie McDonald, who at the time of the institution of this suit was 40 years old, and at her death was her sole heir. In 1885 she married her second husband, W. H. Smith, and at that time was the owner of the land in controversy; and also of about 160 acres additional, which was her .homestead at the time of her death. The tract of land in controversy contains about 28 acres, and in 1888 the house and fences thereon were partially destroyed by a cyclone. The land had been badly cultivated, and the iriiprovements had been greatly neglected. She desired that the house and improvements upon this tract should be repaired, so that it might bring some returns. At the suggestion of her husband she agreed to convey the tract to him if he would make the repairs, and also in order that he might gain the-benefit of his labor and own the land in event of her death. On August 16, 1888, she executed to him a deed for the land, which was recorded on the same day. Smith made the improvements on the land and continued to cultivate and exercise acts of ownership over it from that date until 1901, when he departed from the settlement, leaving his wife there. Several years after obtaining the land he conveyed two acres of it to-Corrie McDonald, and Mrs. Smith testified that during all those years she considered and recognized the land as belonging to her husband, and was perfectly satisfied that she had conveyed it to him. She stated that he made her a good husband. and that she had no reason to complain of him while they lived together. In 1901 the land was rented for fifteen dollars per annum, and it is not claimed that this was not a fair rental value of the land at that time. After this Corrie McDonald built a fence on the land, which he removed about the time of or just after the institution of this suit. About January 1, 1908, W. H. Smith returned, and was endeavoring to sell the land. He told J. M. King he would sell the land for $300. King had lived in the family of Martha Smith from the time he was a child until 1889, when he married. Since that time he had lived in the same community with her, and visited her frequently, but there is no testimony that he transacted any business for her, or that Mrs. Smith either relied upon him to attend to any matters for her or confided to him any of her affairs. King went to the home of Mrs. Smith,'and told her that her husband had returned, and was endeavoring to sell the tract of land. She testified that he told her that Smith had come back with the determination to sell the land to some one, and that he had the right to sell it, and that he (King) would buy it and pay her one-third of the purchase money and also pay her son for the fence he had built on the land. She then asked him: “What are you going to give for it?” And he says: “$300.” “And I says: ‘$300’; that looks like a mighty little to me.” She stated that, believing the representation that her husband could sell the land, she agreed to execute the deed for the land on the terms named. She also stated that she was at the time suffering from neuralgia, and was greatly influenced by King’s statement that Stanith could sell the land. King testified that he told her that Smith was trying to sell the land, and was willing to take $300 for it; that he would buy it and pay her one-third of the purchase money, and also pay her son for the fence built on the land by him; and that she told him to go ahead and buy it. On the following day King purchased the land, paying to Smith $200. He had the deed made in the name of his wife, for the reason, as he claimed, that she advanced the money. Mrs. Smith joined in the execution of the deed, and also relinquished all right of dower in the land. Her acknowledgment to the deed was taken before a notary public, who testified that it was fully read over to her. Mrs. King executed her note to Mrs. Smith for $100, bearing inter est, which was accepted by Mrs. Smith. At the time of the filing of her answer Mrs. King tendered the $100 and interest to Mrs. Smith, and brought the money into court. At the time of the execution of the deed Mrs. Smith was 60 years old, and, while there is some testimony showing that she was weak in body and not strong in mind, yet we think the preponderance of the testimony shows that she was able to read and write and mentally able to attend to her affairs in the same manner that a woman of her years and experience would ordinarily be able to do. The testimony tends to prove that the land at the time of the execution of the deed to Mrs. King was worth about $500.
The chancellor made a finding of fact in favor of the appellees, and denied the prayer of the complaint, which sought the cancellation of the deeds on the ground of fraud. He ordered that the $100 and interest, which had been brought into court by the appellees in payment of the note for the land, be turned over to the representative of Mrs. Smith.
It is urged by counsel for appellant that King obtained the execution of the deed in 1908 by misrepresentation and undue influence and for a grossly inadequate consideration, and on this account that it was secured by fraud and should be cancelled. While the deed to Mrs. King is not necessarily dependent upon the validity of the deed executed by Mrs. Smith to her husband, nevertheless the legal effect of that deed and the manner in which its validity was considered by the parties will materially assist in determining whether or not the deed to Mrs. King was obtained by false representations or by wrongful influence. The chief ground for the assertion that misrepresentation was made by King, or that improper influence was exerted on Mrs. Smith, to obtain the deed is that she was told that her husband could sell the land, when as a matter of fact (or rather of law) her deed to him was void. But, as a matter of law, the deed executed by her to her husband was not necessarily void. Although courts of law will not enforce contracts made between husband and wife, equity will in many instances recognize and enforce them when they are fair and reasonable. This is especially true of conveyances executed by the one to the other. Equity will scrutinize with great jealousy a conveyance from the wife to the husband, but, as is said in the case of Hannaford v. Dowdle, 75 Ark. 127; “After all, the demand for such scrutiny is to ascertain, and not to defeat when ascertained, the real intention of the parties, where the transaction is free from fraud. * * * Transactions between husband and wife, when fairly entered into, are as binding upon the courts as between other parties.” The direct conveyance by the wife to the husband or by the husband to the wife will be sustained in equity, in the absence of fraud. The technical reason of the common law, arising from the unity of the two, for not enforcing such conveyances does not prevail in equity. Such a deed by a wife to the husband will convey to him .the equitable title. Pillow v. Sentelle, 4g Ark. 430; Ogden v. Ogden, 60 Ark. 70; Bowers v. Hutchinson, 67 Ark. 16; Carter v. McNeal, 86 Ark. 150; Mathy v. Mathy, 88 Ark. 56. So that by the deed from his wife Smith, in the absence of fraud, obtained an equitable interest in the land, an interest which could be disposed of because it would be recognized and enforced in equity. There is no testimony adduced in the case tending to prove that King knew that the deed had been obtained by undue influence or by fraud. On the other hand, the testimony tends to prove that for twenty years her conveyance to her husband had been recognized and approved by Mrs. Smith; and for years with her knowledge and consent he held himself out to the world as the owner of the land. When therefore King told Mrs. Smith that her husband was endeavoring to sell the land, and that he could do so, he made no statement which he knew to be untrue or which was necessarily false. Under the circumstances of this case, it is doubtful if the statement was untrue, although it was only an expression of opinion of law, and not strictly a statement of fact. It was therefore not a fraudulent misrepresentation. 2 Pomeroy, Eq. Jur., § 882.
Mrs. Smith had information relative to the entire matter equal to that of King; in fact, she had better information. All persons are bound by their contracts if not laboring under some mental disability; and if the means of information are equally open to both parties, it will be- deemed that the parties have relied upon their own knowledge. Under such circumstances it can not be said that the contract has been induced by such misrepresentation that a court of equity will refuse to enforce the contract or cancel it if executed. Yeates v. Pryor, 11 Ark. 58; Righter v. Roller, 31 Ark. 170; Matlock v. Reppy, 47 Ark. 148; Arkadelphia Lumber Co. v. Thornton, 83 Ark. 403.
Nor can it be said, from the testimony, that the consideration paid for the land by King was so inadequate as to furnish convincing evidence of fraud. The rule is well settled that before inadequacy of price will be considered a sufficient ground for cancelling a conveyance it must be “so gross that it shocks the conscience.” 2 Pomeroy, Eq. Jur., § 927; 6 Cyc. 286; Storthz v. Arnold, 74 Ark. 68.
The land was reasonably worth from $500 to $600. Eor this land King had agreed to pay $300 and the cost of a fence which was estimated to be worth from $65 to $140. We do not think that the inequality between the price agreed to be paid and the value of the land as testified to upon the trial of the .case was so gross as to stamp this transaction as fraudulent.
Nor were the relations existing between Mrs. Smith and King of such a confidential nature as to taint the transaction with fraud. King had at one time lived in the family of Mrs. .Smith, but for twenty years'prior to the execution of this deed he had been as a stranger, although a neighbor to .the family. There is no testimony indicating that King transacted any business for Mrs. Smith, or that she reposed any special confidence or trust in him. He occupied no relation of confidence or trust with reference to her, and it can not be said from the evidence that he exerted any special influence over her by reason of the trust she placed in him.
Mrs. Smith appeared before the chancellor and gave oral testimony in the case. The chancellor had the better opportunity to observe her intelligence and her capacities. While a chancery case is tried upon appeal de novo, and this court passes its own judgment upon the weight of the evidence, nevertheless the findings of the chancellor are persuasive, and more especially is this so when he has had the opportunity to see and hear the witness whose intelligence and mental abilities are also in question.
The chancellor found that the transaction between Mrs. Smith and King which culminated in the execution of the deed by her was not tainted with actual or constructive fraud. We have carefully examined the evidence, and we can not say that the finding of the chancellor is clearly against the preponderance of the evidence.
Under such circumstances the chancellor’s finding will not foe disturbed by this court.
The decree is affirmed. | [
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Hart, J.
The only question involved in this appeal is the liability of Independence County for fees and costs in a ■ case ■before a justice of the peace. Appellee Tomlinson was a justice of the peace. He and the other appellees presented to the county court a claim for fees and costs in a criminal case in bis court. The claim was disallowed, and an appeal was taken to the circuit court, where the case was tried upon an agreed statement of facts. The circuit court found for the claimants, and the appellant, Independence County, has appealed to this court.
No motion for a new trial was made in the court below.“A motion for a new trial is as necessary in trials by-the court as in those by a jury, and as well where the facts are agreed on as where they are proved by witnesses; but it is not necessary at all when the errors complained of do not grow out of the evidence or instructions, but appear from the record itself, without the intervention of a bill of exceptions.” Smith v. Hollis, 46 Ark. 17, and cases cited. .In the present case the errors complained of do not appear from the record itself. Hence there is nothing presented by the record for our review. This is conceded by counsel for both sides; and they attempt to overcome it by entering into a stipulation waiving a motion for a new trial and a bill of exceptions, and joining in a request for us to decide certain questions which they have agreed were involved in the trial of the. cause in the court below.
We regret that we can not accede to their request. As early as 1853, in the case of State Bank v. Conway, 13 Ark., page 344, this court said: “But it is to be understood that if a party merely excepts to the finding of the court or jury setting out the testimony, without any motion for new trial, and with out any exception whereby he shall put his finger upon the alleged error of law as to any ruling or decision of the court below, there is no case presented for the consideration of this court. Such a practice, if allowed to extend itself, would break down the efficiency and dignity of the circuit courts, and they would become in effect so many commissioners to certify evidence up to this .court in any given cause for revision.” This rule has been steadily adhered to ever since.
The judgment will therefore be affirmed | [
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Frauenthal, J.
This was an action instituted by Crawford Robinson against the St. Louis, Iron Mountain & Southern Railway Company to recover damages which he alleged that he sustained by reason of the negligent killing of his son, Joe Robinson, who. was a minor. The appellant maintains a station at Macon Lake, a point upon its line of railroad, at which one of its section foremen resided. On the afternoon of Sunday, July 21, 1907, this section foreman requested some men to take the handcar and get a keg of water for him. The day being Sunday, the section foreman was not engaged during the entire day in performing any work for the appellant. The handcar was situated on an offset or spur on the side of the railroad track, and had been locked to the rails, and not used during the entire day for the purposes of appellant. The men got the handcar, and placed it on the railroad track to proceed to the place where the water was located — about 30a yards from the station. A number of boys were lingering about the station, amongst whom was Joe Robinson, who was twelve years old. When the men started the handcar, these boys got on it for the purpose of taking a ride. There is a sharp conflict in the testimony as to whether or not the section foreman permitted these boys to ride on the car; but the testimony on the part of the appellee establishes the fact that he permitted them to do so. After the water was secured, and while they were returning to the station upon the handcar, the boy, Joe Robinson, fell therefrom. The car ran over him, and he was so seriously injured that he died from the effect of this injury on the following day. There is a conflict in the evidence as to the manner in which the injury occurred. Some witnesses on the part of the appellant testified that the boy jumped from the car just as it neared the station and had slackened its speed, and that after jumping from the car he fell under its wheels. The testimony on the part of the appellee, however, establishes the fact that the car was going at a high rate of speed, and that the boy fell off the car without any fault on his part.
The uncontroverted testimdny, however, establishes the fact that the section foreman was not on that day (which was Sunday) engaged in work of any kind for appellant. He sent for the water for his sole private use at his house. The men whom he requested to go after the water were not in appellant’s employ. The foreman had no authority to employ these men for this purpose; and he had no authority from, nor was there any custom of, the appellant to permit boys to ride on its handcars. The procurement of the water was not for the benefit of the appellant or for any of its employees while engaged in work for it, but was solely for the independent purpose and use' of Williams, the section foreman.
A verdict was returned in favor of appellee for $1,500, and from the judgment entered thereon the railroad company has prosecuted this appeal.
We do not think that it is necessary to set out the instructions that were given by the lower court or which were refused, and the rulings thereon of which appellant complains, because we are of the opinion that, under the uncontroverted testimony, the appellant was not liable for the unfortunate accident which resulted in the death of the boy, and therefore the appellant was entitled- to the peremptory instruction in its favor which it asked.
In the case of Railroad Company v. Dial, 58 Ark. 318, a boy fifteen years old, at the request of the conductor of a freight train, mounted one of the box cars and undertook to throw off the brake on the car. While thus engaged, he was injured " by striking his head against an iron bridge as the car was moving under it. In that case it was held that the railroad company was not liable on account of the permission or direction of the conductor to the boy to go upon the car, because the conductor had no express or implied authority to employ the boy or to direct or permit him to go upon the car. In that case it was further held that the proof showed that the conductor had no power to employ brakemen, and that it was not within the scope of his authority or employment to direct boys to assist the regularly employed brakemen of the, compány, or to direct them to go upon the cars, and that the company could not be bound and thus made liable for the act of the conductor in so doing.
In the case of Railway Company v. Bolling, 59 Ark. 395, a child of tender years was taken on a handcar at the direction of 51 section foreman, and received injuries while riding thereon. At the time of the injury the section crew who were propelling the car were not engaged in any work for the benefit of the company, but were bent on purposes solely their own. In that case this court held that the railway company was not liable for any injuries which the child received by reason of any negligence on the part of the section crew in charge of the handcar. In speaking of the liability of the railway company for the-act of a servant done without the scope of his authority and employment the court, quoting from approved authority, says: “The true rule is that the master is only responsible so long as the servant can be said to be doing the act, in the doing of which he is guilty of negligence, in the course of his employment as servant. Thus it will be seen that, in the absence of express orders to do an act, in order to render the master liable, the act must not only be one that pertains to the business, but must also be fairly within the scope of the authority conferred by the employment.” In the case of Sweeden v. Atkinson Improvement Co., 93 Ark. 397, a child was invited into a passenger elevator by a servant of the defendant' for the purpose of taking her for a ride, and was injured thereby. It was held in that case that this act of the servant was not in the line of his employment, and was unauthorized by the master, and was for the purpose of carrying out the independent object of the servant; and that the defendant was not liable for injuries received by the child through the negligence of the servant. In that case we said: “It will thus be seen that the test of a master’s liability is not whether a given act was done during the existence of the servant’s employment, but whether it was done while carrying out the object and purpose of the master’s business; for, if the act was done without authority and solely for purposes exclusively the servant’s, then the master is not liable during such time that such acts are done. During such time he steps aside from his master’s business and his employment.”
In the case at bar the undisputed evidence shows that the section foreman during the entire Sunday upon which the injury óccurred was not engaged in any work for the appellant. In sending after the water he was carrying out an object that was solely his own and exclusively for his own benefit. He was not authorized to permit boys to ride on the handcar, and it was not within the apparent scope of his authority to do so; and it was not the custom of the company to allow this to be done. The men who were actually propelling the car at the time of the injury were not in the employment of appellant; and, if the injury occurred through any negligence on their part, the appellant cannot be held responsible therefor. Nor can the appellant be held liable for the act of the section foreman in permitting the boy to ride on the handcar. This permission was outside the scope of his employment and authority; it was connected with an act that was done for the exclusive benefit and purpose of the section foreman, and during a time when he had stepped aside from the business of the appellant and his employment.
The judgment is reversed, and the 'cause dismissed. | [
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Battle, J.
In the month of June, 1908, ten owners of real property in the city of Newport, in this State, and in a certain territory in the city, petitioned to the city council of that city to make and declare said territory, which they described By metes and bounds, an improvement district, to be known as “Sewer District No. 1” for the purpose of constructing, operating and managing a sewer system in said district. In the same month the city council of the city of Newport, by ordinance duly passed, granted their petition, and laid off said, territory by metes and bounds in an improvement district for the purpose of establishing, constructing, maintaining and managing sewers therein, and designated the same as “Sewer Improvement District No. 1 of the City of Newport, Arkansas.”'
Within three months after the publication of such ordinance, a majority in value of the owners of real property within said district presented to the city council of the city of Newport a petition asking it to establish and construct a system of sewers, the aggregate cost of constructing the same not to exceed the sum of $42,500, and to maintain, manage and operate the same, and that the cost thereof be assessed and charged upon the real property within said district. The city council thereupon appointed three owners of real property therein to constitute a board of improvement of the district, who took the oath prescribed by law, and formed plans for the improvement asked for by petitioners, and made estimates of the cost thereof and reported the same to the city council as follows:
Construction ............................$38,500.00
Engineers ..............................' 1,850,00
Purchase of lot for pump house.......... 300.00.
Right-of-way ...................... 500.00
Stationery, printing and advertising........ 250.00
Miscellaneous and sundry items of expense.. 1,100.00'
Totai ..............................$42,500.00
They further reported that it would be necessary to borrow the sum of $38,000 with which to build said sewer system, and that the interest on the money so borrowed would amount to about the sum of $21,000, estimating that a portion of the principal of said indebtedness would be paid each year until the end of twenty years, which interest added to the cost of Construction makes a total cost of $63,500. - <■
After the filing of the report of the board of improvement the city -council appointed a board of assessment, who, after taking the oath prescribed by law, assessed the value of the benefits to accrue to the real property in said - district by reason of such improvement, and deposited a list of the same in, the' office of the recorder or city clerk of the city of Newport. Within due time the city council by an ordinance ordained that the real property in the district be assessed according to the assessment list for the district as the same now remains in the office -of the recorder of said city, “and that five per centum of assessed betterment ón each of said blocks, lots and parcels of real property shall be paid annually on or before the -1st day of February until the whole of said local assessment shall be paid.” .¡
The board of improvement brought this suit against David Webster and Alice Webster, .in the Jackson C-hancery Court; and alleged in their complaint that the defendants are the owners of lot 4, block K, in Chastain’s Addition to the city of Newport, Jackson County, Arkansas, and that the lot is embraced 'in said improvement district; that the board of assessors of' said sewer improvement district assessed the benefits - on said lot, together with all other real property in -said ¡district subject to assessment for such improvement, which -assessment on the lot amounts to'the sum of $3.50; that the first annual installment of said assessment amounts to the sum of 17J4 cents; that the defendants 'failed to pay the first installment within the time required by law,' and the collector for the district added a penalty of three and a half cents, and returned the lot delinquent, and the assessment on the lot is still delinquent and unpaid. The board asked that the lot be charged with the assessment of 17/^'cents and the penalty of 3^ cents, and be condemned and sold to pay the same.
The defendant answered, and admitted the allegations of the complaint, but say that the assessment on their lot is illegal and void for the following reasons:
“First. That the petition of the majority of the property owners of the district asked the city council of the city of Newport' to establish, maintain and operate a system of sewers in said district, and that there is no authority of law for the maintaining and operating of sewer systems by said district.
“Second. That the petition praying that the district be established asked that a system be established, ‘the aggregate cost of constructing same not to exceed the sum of $42,500,’ and that the board of commissioners of said district has adopted plans and specifications for a system of sewers the actual cost of which in cash is $42,500, -and that it will be necessary to issue bonds to the amount of $38,000, 90 per cent, of the estimated cost of said sewer, to obtain the money to build said sewer system, and that the interest on said bonds will amount to .the sum of $21,000, making the system cost $63,500, or $21,000 in excess of the limitation placed upon the cost of construction of said system by the original petition.
“Third. That the board of assessors has assessed the benefits accruing to the real property in said district at the sum of $98,700, which exceeds the estimated cost of constructing said system, including interest thereon, by the sum of $35,200, and the city council, acting upon said assessment list, has passed an ordinance levying an assessment on the $98,700 benefits.
“Fourth. Because the board of assessors of said district failed to take the oath as prescribed by law, they having taken the oath required by section 5677 of Kirby’s Digest, and not the Oath required by said section 5677 of Kirby’s Digest, as amended by act 167 of the Acts of Arkansas, 1907.”
The plaintiff, the board, demurred to the defendants’ answer., which the court sustained, and, the defendants refusing to plead further, condemned and ordered the lot sold according to the prayer of the complaint; and defendants appealed.
The defendants’ first ground of defense is untenable. Conceding that the city council had no authority to create a district to manage and operate a sewer district, the remainder of its ordinance to create a district for the purpose of constructing and establishing sewers is valid. The ordinance may be void in part and valid in part, it being severable. Eureka Springs v. O’Neal, 56 Ark. 350, 353.
The second ground is equally untenable. The property owners, ■ in asking for the construction of a system of sewers not costing exceeding $42,500, meant that the actual cost should not exceed that amount. No mention was made by them of borrowing money, and none was made until after the creation of the district; and the board of improvement estimated the actual cost to be $42,500. Under the circumstances the presumption is that the actual cost was intended; the actual cost being as much as that specified ($42,500) indicates that it was intended.
The total assessment of the benefits of the. improvement to the real property in the district does not control the cost of the improvement; for,' when the expenses of the improvement are paid, the authority to collect taxes for that purpose ceases to exist. The statute provides: “No single improvement shall be undertaken which alone will exceed in cost twenty per centum of the value of the real property in such district as shown by the last county assessment,” and beyond that limit taxation can not go for such purposes. Kirby’s Digest, § § 5683, 5716.
The defendants were barred and precluded from attacking the assessments of benefits on the ground that the assessors did not take the oath prescribed by law. It was the duty of the city clerk or recorder to publish -in some newspaper in the city of Newport a copy of the ordinance, which ordered that the real property in the district be assessed according to the assessment list deposited in the recorder’s office .and that five per centum shall be paid annually until the whole of the local assessment shall be paid, within thirty days after its passage; and the statute provides that all persons who shall fail to begin, legal protéedings within thirty days after such publication for the purpose of correcting or invalidating such assessment shall be forever barred and precluded. Kirby’s Digest, § 5685. So the defendants, having failed to begin such proceedings within the time prescribed, are barred by this statute from attacking the assessment because the assessors did not take the proper oath; it not being jurisdictional. Stiewel v. Fencing District, 71 Ark. 17, 24.
Decree affirmed. | [
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McCulloch, C. J.
The present appeal grows out of the election contest between S. A. Buchanan and R. L. Williams for the office of sheriff of Garland County, which was decided •by this court on the appeal of Williams. Williams v. Buchanan, 86 Ark. 259. Buchanan was the. contestant, and judgment in his favor was rendered by the circuit court, declaring him to have been elected to the office of sheriff and ousting the contestee, Williams, from office; and, also, a judgment was rendered in his favor for the emoluments of the office which had been collected by the contestee. This court affirmed that part of the judgment which declared the contestant to have been elected, but reversed the judgment of ouster and for the emoluments; and this court rendered judgment in favor of Williams for all the costs of the appeal.
At the commencement of the contest Buchanan, the contestant, gave a bond, with William McGuigan as surety, in accordance with the statute, conditioned to pay to the contestee and the officers of the court such sums as should be adjudged against him. After the rendition of the aforesaid judgment of this court, Buchanan filed a motion 'iii the Garland Circuit Court to tax the costs of the contest against Williams, his unsuccessful adversary. The latter was served with notice or sum muub, ami appeared and resisted the motion on the ground that the court was without jurisdiction to render a judgment in favor of the contestant for costs in an election contest. At the same time Ed Parham, who was clerk of the circuit court during the pendency of the contest, filed a motion praying that his fee for making the transcript on the appeal to this court be taxed, and that judgment be rendered in his favor for the amount of the unpaid balance against Buchanan and the surety on his bond. This motion was resisted by both Buchanan and McGuigan, his surety. On the hearing of both motions together, the circuit court rendered judgment in favor of Buchanan against Williams for the amount of the costs of the contest in the county court and in the circuit court, and also rendered judgment in favor of Parham against Buchanan and McGuigan for the amount of his unpaid cost for making the transcript on appeal to this court. Williams appeals from the judgment in Buchanan’s favor against him; and Buchanan and McGuigan appeal from the judgment in Parham’s favor against them. It is therefore seen that two distinct controversies are presenrea.
First, as to the controversy between Buchanan and Williams: No express authority is found in the statute for rendering judgment against an unsuccesful contestant in an election contest which originates in the county court. In Rhodes v. Driver, 69 Ark. 606, this court said that in an election contest originating in the county court the jurisdiction of the court is limited “to an order declaring the contestant elected, and, incidentally, to a judgment for cost.” In Davis v. Moore, 70 Ark. 240, the court, in an opinion by Chief Justice Bunn, intimated that there is no authority to render judgment for cost in favor of a successful contestant, arid cited cases in support of that view. In both opinions the language referring to judgments for costs was dictum; but in the last cited case the court decided that “election contests are special proceedings, and not civil actions under the Code, and everything must be done therein according to the statute regulating such proceedings, where such statute exists.”
In Williams v. Buchanan, supra, Chief Justice Hiuu, in delivering the opinion of the court, discussed the several statutes relating to election contests, and pointed out that the sec tion authorizing circuit courts in contests for the office of supreme judge, judges of the circuit, chancery and county courts, and prosecuting attorney, to render judgments of ouster and for damage and cost of suit, had no application to contests originating in the county courts. He further said, however, that “the Legislature has decided that it is not wise to give to the county court power to oust the contestant from office and to give judgment for anything other than the costs.” The question of costs of the contest does not seem to have been argued in the briefs, and the Chief Justice was merely discussing the question of the authority to render judgment of ouster.
Taking the language of all these opinions, it can be said to be yet an open question whether there is any authority for rendering judgment for costs in favor of a successful contestant for office, the contest of which is by statute originated in the county court. It is plain that the statute does not expressly confer such authority, and it is significant that the Legislature expressly authorized judgment for costs against the unsuccessful contestant and also expressly authorized judgment for costs in favor of the successful contestant for an office, the contest of which is by statute originated in the circuit court. We need not seek a reason for the omission to authorize judgments for costs in favor of successful contestants in the first^named class of contests, as it is within the power of the lawmakers either to give or to withhold such authority. Probably the Legislature did not deem it expedient to impose the costs of a contest on a county officer who defends the title vested in him by the declared result of the election, even though he does not succeed in his defense.
Wilson v. Fussell, 60 Ark. 194, was an appeal from a refusal of the circuit judge to tax costs against the unsuccessful appellants from an order of the county court approving the bond of a tax collector. Judge Riddick, speaking for the'court, said: “The right to recover costs did not exist at common law. It rests upon statute only, and it is to the statute we must look for the authority to recover costs in any given case. * * * There is a general provision in our statute that a plaintiff or defendant recovering judgment at law is entitled to his costs, but this is not an action at law or in equity.”
In Buckley v. Williams, 84 Ark. 187, the court said: “It (the cost of suit) is a liability created by statute, and, in the absence of the statute allowing same, there could be no judgment rendered in favor of a defendant against a plaintiff, where the latter fails in his suit.”
The authorities seem to all.agree, as far as they go, that courts have no authority to give judgment for costs in contested election cases unless the statute expressly authorizes it. 15 Cyc. 440; Knox v. Fesler, 17 Ind. 254; Patterson v. Murray, 53 N. C. 278; Borgstede v. Clark, 5 La. Ann. 733; West v. Perguson, 16 Gratt. (Va.) 270; Bayard v. Klinge, 16 Minn. 249.
We believe that is the correct view of the question; and if it is deemed expedient to authorize such judgments, the Legislature should so declare by appropriate legislation. It therefore follows that the judgment of the circuit court awarding costs to Buchanan was void, and that the judgment now appealed from taxing the costs should be reversed.
This court rendered judgment against Buchanan for the costs of the appeal. The circuit court had no power to tax the costs of the appeal, or to enforce the judgment of this court against Buchanan. Parham’s remedy for the collection of his fee for making the transcript, which constituted a part of the costs of the appeal adjudged against Buchanan, is by enforcement of the judgment .of this court. The judgment against Buchanan inured to his benefit, to the extent of the unpaid balance due him for making the transcript. He can apply here for taxation of his unpaid costs, or, if the same has already been taxed, he can apply to the clerk for a fee bill, which has the force and effect of an execution against the goods and chattels of the party against whom' the costs were adjudged. Section 3538 of Kirby’s Digest provides that “all fees which shall not be paid shall be indorsed on the execution, and collected by virtue thereof, for the benefit of the person rendering the service, or the same may be collected on fee bills, according to the preceding provisions of this chapter; but only the cost of the prevailing party shall be so taxed on such execution.”
McGuigan, the surety on ■ Buchanan’s bond, is not liable for the costs of the appeal, for Buchanan won the contest, and only the judgment of ouster was reversed. His liability for costs was not affected by the improper judgment of ouster. Both judgments of the circuit court are therefore reversed, and the proceedings instituted below to tax costs are dismissed. | [
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McCulloch, C. J.
Defendant, Thomas Hampton, is a barber, and owned and operated a barber shop in the town of Walnut Ridge, and on May 19, 1909, sold out to the plaintiffs, Caldwell & Hall. He claims that he sold to them the shop outfit for the sum of $750, and that there was no other agreement concerning the matter save that of the sale. Plaintiffs claim that he sold them the outfit for $500, and the good will of the business for $250, expressly agreeing not to again go into that business at Walnut Ridge. A few months later he started to open another shop at that place, and they instituted this action in the chancery court to restrain him from violating the alleged contract.
Such a contract is reasonable and enforcible, and a court of equity will restrain its breach. Bloom v. Home Insurance Agency, 91 Ark. 367, and cases cited.
An oral contract of that sort is not within the statute of frauds, for it is not one which, according to its terms, does not admit of performance within a year. The death of the obligor within a year would have brought the contract to an end; therefore, it might have been fully performed within a year. Meyer v. Roberts, 46 Ark. 80; Ry. Co. v. Whitley, 54 Ark. 199; Sullivan v. Winters, 91 Ark. 149; Valley Planting Co. v. Wise, 93 Ark. 1; Lyon v. King, 11 Metc. (Mass.) 411, 45 Am. Dec. 219; Smith on the Law of Fraud, § 347.
The evidence is conflicting; but we think it supports the finding of the chancellor, and is sufficient to warrant a court of equity in restraining a breach of the contract.
Decree affirmed. . | [
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Hart, J.
This is an appeal by the St. Louis, Iron Mountain & Southern Railway Company from a judgment recovered against it by Mattie Erisby for an alleged overcharge of passenger fare.
The plaintiff was an orphan girl, 18 years, old, and lived with T. J. Hawkins near Prescott, Arkansas. Mr. Hawkins bought two tickets from Prescott to Hope, Arkansas, for the use of the plaintiff and his daughter, Gladys, who at the time was not quite 12 years of age. He purchased a round trip ticket for an adult for the use of the plaintiff and a half-fare single ticket for his daughter. The girls boarded one of defendant’s passenger trains at Prescott, en route to Hope, and occupied the same seat, the plaintiff being next to the window of the car. By mistake; each had the ticket intended for the other. The train auditor first took up the ticket handed him by Gladys, and gave back to her that part of it intended for the return trip. The plaintiff then handed him the ticket she had, and, after he had punched it, asked him if he was not going to give back to her the return part of it. The auditor then looked at her and asked her how old she was, and she replied 18 years. The auditor then told her that she could not ride on a half-fare ticket. Plaintiff then noticed the mistake in handling the tickets and explained to the auditor that she and Gladys had gotten their tickets changed by mistake. That she had given him Gladys’s ticket and that Gladys had handed him plaintiff’s ticket. The auditor did not accept the explanation, and demanded of her an additional sum to make up the difference between a half and a whole-fare ticket. The plaintiff told him she had no money, but Gladys paid him the additional fare demanded.
This is substantially the version of the transaction as narrated by the plaintiff and her witnesses.
The train auditor testified that they did not tell him that the half-fare ticket was for the little girl. He said he asked them if they had not got their tickets mixed, and that they said they had not. He does admit; however, that he demanded of plaintiff and received the sum of 23 cents, which was the difference in price between a half and a whole fare ticket.
The action was brought under section 6620 of Kirby’s Digest, which is as follows:
“Any of the persons or corporations mentioned in sections 6611, 6612, 6613 and 6614 that shall charge, demand, take or receive from any person or persons aforesaid any greater compensation for the transportation of passengers than is in this act allowed or prescribed shall forfeit and pay for every such offense any sum not less than fifty dollars, nor more than three hundred dollars and costs of suit, including a reasonable attorney’s fee, to be taxed by the court, where the same is heard on original action, by appeal or otherwise, to be recovered in a suit at law by the party aggrieved in any court of competent jurisdiction.”
It is first insisted by counsel for defendant that the plaintiff can not maintain the action because she did not herself purchase the ticket and was not the “party aggrieved” within the meaning of the statute; but this question has been decided adversely to their contention in the recent case of St. Louis, Iron Mountain & Southern Railway Company v. Freeman, ante p. 218.
It is next contended by counsel for appellant that the facts as stated in other respects do not constitute an overcharge for fare. They say: “It is not contended that the ticket seller overcharged plaintiff; and the action of the auditor alone must be looked to to determine whether any was made.”
The statute is directed against the railway company and its object is “to compensate the party injured for his expenses in the prosecution, and to compel the payment of such a sum by the company violating the law as will effectually stop the practice.” Fetter on Carriers of Passengers, § 263; St. Louis, I. M. & S. Ry. Co. v. Waldrop, 93 Ark. 42.
The language of the statute is “shall charge, demand, take or receive from any person or persons any greater compensation,” etc.; and is referable to the company itself, and not to its agents. Of course, a corporation can only act through agents; but where it is in direct and explicit terms forbidden to do a thing, the acts of all its agents, who contributed to the thing done, must be considered the acts of the corporation itself. The thing forbidden by the statute under consideration is charging or receiving fare in excess of the maximum rate provided by law. The tickets in question seem to have been of the kind, merely naming the places between which they were good for passage, and, as such, were in the nature of receipts for the passage money. 1 Fetter on Carriers of Passengers, § 275; Moore on Carriers, p. 806.
The undisputed evidence shows that the tickets were exchanged by mistake. The plaintiff’s evidence shows that the mistake was explained to the train auditor, and that she was entitled to have the mistake corrected. When that is done, we have the case of a passenger presenting to the auditor a receipt for passage money of the amount the company was allowed by law to charge. The auditor refused it, and de manded and received an additional sum in excess of the amount so tendered. The ticket seller and the auditor were each entitled to receive money for passage, and their acts must be deemed to be those of a single agent; and, when so treated, it is evident that a greater fare than that allowed by law was demanded and received by the railroad company.
The disputed questions of fact were submitted to the jury under proper instructions of the court, and the judgment will be affirmed. | [
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Hart, J.,
(after stating the facts). It is earnestly insisted by counsel for appellant that the contract in question is illegal and void as being in restraint of trade. It is well settled that agreements by common carriers which interfere with the performance of their duties to the public are illegal and void as being contrary to public policy. 9 Cyc. 498. No one has a right to enter into a contract where the obligation imposed by it can not be performed by the other party without a violation of law; but we do not think the rule has any application to the facts adduced in evidence in the case at bar. While the tram road from Wesson west into the timber was a'standard gauge steam railroad, it was operated for private carriage. The undisputed evidence shows that the McDaniel Lumber Company built it for the express purpose of hauling its own logs to its sawmill. It was not chartered as a public carrier, and its owner and operator did not hold it out as such. It was operated as a private carrier, and as such its owner had the right to contract to haul exclusively for one person, firm or corporation. As a private carrier, it had a right to give a preferential rate to appellee in consideration of doing all its hauling. The evidence also shows that the spur track from Wesson to Cornie Junction was a private spur, and was not built for the use of the public. The railroad company did not operate its trams on the spur, and that it was built for the exclusive use of the lumber company is shown by the fact that when they ceased to use it the spur track was torn up.. It was attempted to establish the fact that the spur track was' operated as a common or public carrier by showing that the lumber company ran a motor car between Wesson and Cornie Junction in 1906 and 1907 for the purpose of carrying the mail and passengers, but the evidence does not show that any charge was made for their carriage. When it is remembered that the evidence shows that Wesson came into existence by the location of the lumber company’s sawmill, it may be inferred that this motor car was run for the convenience of the company and its employees. In any event the fact that the motor car for mail and passengers was run during the years 1906 and 1907 does not establish the fact that the spur was operated as a public carrier of freight. Indeed, the evidence establishes just the reverse. It shows that the spur track was laid for the exclusive private use of the lumber company, and that it was not operated as a public carrier of freight. In construing a contract in all essential particulars similar to the one in question; the Supreme Court of Virginia in the case of Merriman v. Cover, 104 Va. 429, held (quoting from syllabus) : “2. A contract in restraint of trade is valid when founded on a valuable consideration, if the restraint imposed is reasonable as between the parties and not injurious to the public by reason of its effect upon trade. Whether or not the restraint is reasonable is to be determined by considering whether it is such only as to afford a fair protection to the interests • of the party in whose favor it is given, and not so large as to .interfere with the interests of the public. Upon the evidence in the case at bar the stipulation by defendants as private individuals and owners of a steam railroad, engaged in private carriage, that no chestnut oak bark shall be shipped over their road except to the plaintiffs, unless they refuse to pay the market price therefor at their own or any other large tannery in that county, is reasonable as between the parties, and does not injuriously affect the public, and hence is valid.”
It is next contended by counsel for appellant that the words “to their nearest connection with the Arkansas Southern Railroad,” as used in the contract, did not mean Cornie Junction, but that it meant Wesson. They insist that, if Cornie Junction had been -meant, it would have so stated in the contract by that name. Their contention has no argumentative force; for, as said by counsel for appellee, if Wesson had been meant, it would have been just as easy to have named Wesson in the contract. Indeed, the contention of appellee is more reasonable; for the line of the Arkansas Southern Railroad was located, and was not likely to be changed. The town of Wesson had a fixed location; and if the latter point had been meant, the parties would have used the word “Wesson,” instead of the words, “their nearest connection with the Arkansas Southern Railroad.” On the other hand, the lumber company prepared the contract, and may not have wished to name their point of connection as Cornie Junction for the reason that this would have compelled them to deliver at that point. They doubtless wished to use language that would enable them to change their point of connection with the Arkansas Southern Railroad during the life of the contract without committing a breach of it. This seems to -have been the interpretation placed upon the contract by the parties; for the cars were delivered at Cornie Junction until the spur track was torn up, - and then, by consent, the place of delivery was changed to El Dorado, and the contract as thus construed was carried out until the 16th day of July, 1908. Hence we think the parties are bound by their own construction of the contract as evidenced by their acts in performing it.
It is next contended by counsel for appellant that it did not, by the purchase of the property of the McDaniel Lumber Company, -become liable to perform its contracts. This may be true, and still they are liable under the facts and circumstances in evidence. The evidence shows that the appellant purchased the entire property of the McDaniel Lumber Company in 1904, and its officers state that they found the contract in force and continued to perform it upon the same terms as provided in the original contract. They so continued to perform the contract until July 16, 1908, at which time they refused to further perform it. Their refusal was not based upon the ground that they were not liable to perform it, but was based upon a disagreement as to what was meant by its terms. This act itself was a recognition of the binding force of the contract. While the mere fact that appellant purchased the property of the Me- Daniel Lumber Company did not make it liable upon that company’s contract, yet, having accepted the contract and having undertaken to perform it according to its terms for the period of nearly three years, it may now be said that it assumed the contract. Having reaped the benefits of the contract for that length of time with a full knowledge of its terms and conditions, it is now estopped to deny liability under it.
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PER CURIAM
hln 2011, appellant Arthur Lee Newton whs found guilty by a jury in the Drew County Circuit Court of sexual indecency with a child and sexual assault in the second degree. He was sentenced to an aggregate term of 288 months’ imprisonment. The Arkansas Court of Appeals affirmed. Newton v. State, 2012 Ark. App. 91, 2012 WL 206967. The mandate issued on February 15, 2012.
On July 9, 2012, appellant filed in the trial court a pro se petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2011). In the petition, appellant alleged that he was entitled to relief because trial counsel was ineffective based on the failure to call a key witness to testify, the victim’s statements were coerced, the prosecuting attorney examined the victim at trial with regard to her prior statement, and he was made to sign a “Sex Offender Acknowledgment Form” before he was found guilty of the charged crimes. The trial court dismissed the petition with prejudice based on a finding that it was untimely, and appellant did not appeal the order.
Subsequently, appellant, while incarcerated in a facility in Lee County, filed in the Lee|¡)County Circuit Court a second pro se petition for postconviction relief, and the circuit court denied the petition. Appellant lodged an appeal here, and we dismissed the appeal on the ground that it was clear from the record that appellant could not succeed if the appeal were permitted to go forward as the circuit court did not have jurisdiction to consider the petition. Newton v. State, 2013 Ark. 320, 2013 WL 4774477 (per curiam).
On September 20, 2013, appellant filed in the trial court a third pro se petition for postconviction relief in which he made substantially the same allegations as he raised in his first postconviction petition, namely that he was entitled to relief because counsel was ineffective in failing to call key witnesses to testify, the victim’s statement was coerced, the prosecuting attorney engaged in leading questions during his examination of the victim at trial, he was made to sign a “Sex Offender Acknowledgment Form” before the jury found him guilty of the charged offenses, and the jury was made aware that he had signed the acknowledgment form. Appellant also seemed to allege that his first petition was untimely because he had been ill and was in the infirmary. Considering the petition to be an application for relief pursuant to Rule B7.1, the trial court denied and dismissed the petition. In its order, the trial court, recognizing that it had previously found that the first Rule 37.1 petition was untimely, found that appellant could not file a subsequent petition for postconviction relief when a Rule 37.1 petition alleging .essentially the same claims had already been denied as being untimely. Appellant lodged an appeal from that order.
On appeal, appellant contends that he is entitled to postconviction relief because his trial attorney failed to call key witnesses to testify and allowed the prosecuting attorney to badger a | .¿witness at trial. Appellant also alleges, as he did in his petition, that he failed to timely file his first petition because he had been ill and was in the infirmary. Appellant contends for the first time on appeal that the untimely filing of his first petition should be excused based on ineffective assistance of counsel during “initial-review collateral proceedings” because, after his conviction was affirmed, his attorney told him that he had no other “options” and abandoned him. Because arguments raised for the first time on appeal could not have been considered by the lower court, they will not be addressed by this court. Hill v. State, 2014 Ark. 420, 2014 WL 5089357 (per curiam); Green v. State, 2013 Ark. 455, 2013 WL 5968933 (per curiam).
Appellant’s claim of ineffective assistance of counsel is cognizable under our postconviction rule, Rule 37.1. A petition that states a claim for postconviction relief cognizable under Rule 37.1 is governed by that rule regardless of the label placed on it by a petitioner. Ussery v. State, 2014 Ark. 186, 2014 WL 1673818 (per curiam); Newton, 2013 Ark. 320, 2013 WL 4774477. Rule 37.2(b) provides that all grounds for relief available to a petitioner under the Rule must be raised in his or her original petition- unless the original petition was denied without prejudice to filing a second petition. If a first petition under the Rule is denied without leave to proceed with a second petition, a petitioner under the Rule is barred from submitting a subsequent petition. Ewells v. State, 2014 Ark. 351, 439 S.W.3d 667 (per curiam); Cooper v. State, 2014 Ark. 243, 2014 WL 2158142 (per curiam). Moreover, pursuant to Arkansas Rule of Criminal Procedure 37.2(c), when there was an appeal from a judgment of conviction, a petition for relief must be filed in the trial court 14within sixty days of the date that the mandate was issued by the appellate court. The time limitations imposed in Rule 37.2(c) are jurisdictional in nature, and, if the petition is not filed within that period, a trial court lacks jurisdiction to grant postconviction relief. Ewells, 2014 Ark. 351, 439 S.W.3d 667. A petitioner, even one proceeding pro se, must conform to the prevailing rules of procedure. See Tarry v. State, 346 Ark. 267, 57 S.W.3d 163 (2001). Here, appellant’s first petition was dismissed as untimely with prejudice, and appellant did not appeal that order. Subsequently, the September 20, 2013 petition was likewise untimely as it was not filed within the sixty-day period; thus, the trial court had no jurisdiction to grant the relief sought. When the trial court lacks jurisdiction, the appellate court also lacks jurisdiction. Pruitt v. State, 2014 Ark. 258, 2014 WL 2465502 (per curiam).
To the extent that appellant is seeking appointment of counsel for the appeal, postconviction matters are considered civil in nature, and there is no absolute right to appointment of counsel. Anthony v. State, 2014 Ark. 195, 2014 WL 1716538 (per curiam). We have held that, if an appellant makes a substantial showing that he is entitled to relief in a post-conviction appeal and that he cannot proceed without counsel, we will appoint counsel. Evans v. State, 2014 Ark. 6, 2014 WL 197783. Here, because the trial court did not have jurisdiction to act on the merits of the petition and this court does not have jurisdiction in the matter, appellant cannot meet his burden of establishing that he is entitled to appointment of counsel.
Affirmed.
. The remaining claims alleged in the petition were allegations of trial error, and such alie-gations should have been raised in the trial court at the time of trial. Trial error is a matter for the trial court to address. See Nickelson v. State, 2013 Ark. 252, 2013 WL 2460147 (per curiam), | [
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BRANDON J. HARRISON, Judge
|, Diana McKenzie appeals the Saline County Circuit Court order granting visitation rights to her daughter’s stepmother, Diana Moore. McKenzie argues that the circuit court erred in finding that Moore stood in loco parentis to her daughter and awarding visitation. We affirm.
In November 2013, Moore filed a motion for visitation in the Saline County Circuit Court, explaining that she was M.M.’s stepmother and had been married to M.M.’s father until he passed away in July 2013. Moore asserted that she stood in loco parentis to the child during the marriage and requested that a visitation schedule be set to ensure continuing contact with the child.
12At a hearing held in March 2014, Moore testified that she first became involved in M.M.’s life when she was six years old and that M.M. was now five days away from turning thirteen. Moore said that when her husband passed away M.M. lived with them and that she (Moore) still lived in that home. Moore explained that she and Ron Moore, M.M.’s father, had dated for four and a half years before they married and that she was actively involved in M.M.’s life during that time. Ron was a pilot and traveled frequently out of town, and there were many times that she kept M.M. and saw to her day-to-day needs, including school activities, piano practice, doctor’s appointments, clothes-shopping, and soccer practice.
Beginning in August 2008, Ron had sole custody of M.M., and Moore continued to take care of M.M. when Ron was away. Moore also testified that she was the trustee of a trust that was established by her late husband for his daughters’ benefit. Moore explained that her home' with their father is the place that the girls knew as home, and that their rooms, possessions, and pets were still there. Moore stated that it was in M.M.’s best interest to continue to have a connection with her and the house that she (M.M.) shared with her father.
On cross-examination, she testified that she took her role as trustee very seriously, that she and Ron had many discussions about the girls’ college education, and that she bases any expenditures out of the trust “upon the very best judgment that I can use as a person and as a parent.” She also testified that she had given the girls pocket money outside of the trust. She agreed that she regularly had phone or text conversations with M.M. but wanted more contact. Moore felt that McKenzie interfered with that contact, | ¡¡and that she and McKenzie do not really get along. But she agreed that she “absolutely” would not have a problem working with McKenzie if the court awarded her visitation.
Upon questioning by the court, Moore stated that she had been a parent to the girls; that she kept them on average one or two nights a month while she and Ron were dating; that after they were married, she acted as a parent by preparing meals and sitting down with them as a family; and that she and the children traveled together to meet their father in Florida and New York City. She explained that she and M.M. did homework together at night and that she enrolled M.M. in school and got all her school supplies. She said that she did not make any decisions about the girls’ schooling without their father’s involvement, but she did attend parent-teacher conferences when Ron was not there. She also said that she took the girls to the doctor and had authority to make medical decisions for them.
M.M. testified that she wanted to visit Moore because “she’s a big part of my life.” She testified that Moore had taken care of her by taking her to sport activities, the dentist, to get hair cuts, and shopping for clothes. Moore had also attended her school events. M.M. described her relationship with Moore as “close” and said that she would like to see her at least every other weekend. Prompted by the court’s questioning, M.M. stated of Moore that “She’s special just because I know she loves me. And I know there are other people that love me, too, but it’s just special.” M.M. said that she saw Moore as more than a stepparent and explained that “I know that she really does care for me and I know she has intentions for me and I know that she’ll help me and she’ll support me through as I need.” She agreed that she considered Moore as family and a parent figure.
| ^McKenzie testified that she had “mixed” feelings about her daughter spending more time with Moore. She expressed concern that Moore would not communicate with her but agreed that she and Moore could have an amicable relationship. She agreed that she and Moore had both testified that they were willing to work together for M.M.’s best interest. She also acknowledged that a part of her thought it was a good idea for M.M. to have a relationship with Moore. She agreed that she “really [didn’t] have an issue with them seeing Ms. Moore.”
In its oral ruling, the court found that Moore stood in loco parentis to M.M. and should be granted visitation. The court mentioned several factors that contributed to its decision, including responsibility for medical and educational needs, overnight care, traveling together, and the length of time Moore and M.M. have had a relationship. The court based its decision in large part on M.M.’s testimony, which it found to be credible. The court awarded visitation in the amount of one weekend per month; two weeks per year, which may be divided as agreed to by the parties; and Father’s Day. A written order memorializing these findings was entered, and McKenzie timely appealed.
We review domestic-relations cases de novo on the record, but will not reverse a trial court’s findings of fact unless they are clearly erroneous. Robinson v. Ford-Robinson, 362 Ark. 232, 208 S.W.3d 140 (2004). A finding of fact by a circuit court is clearly erroneous when, despite supporting evidence in the record, the appellate court viewing all of the evidence is left with a definite and firm conviction that a mistake has been committed. Stills v. Stills, 2010 Ark. 132, 361 S.W.3d 823. We give due deference to the superi- or position of the circuit court to view and judge the credibility of the witnesses. Hunt v. Perry, 357 Ark. 224, 162 S.W.3d 891 (2004). This deference to the'circuit court is even greater in cases involving child custody or visitation, as a heavier burden is placed on the circuit court to utilize to the fullest extent its powers of perception in evaluating the witnesses, their testimony, and the best interest of the children. Alphin v. Alphin, 364 Ark. 332, 219 S.W.3d 160 (2005).
Our supreme court has explained the doctrine of in loco parentis:
The Latin phrase, “in loco parentis,” literally translated, means “in the place of a parent.” Simms v. United States, 867 A.2d 200 (D.C. 2005). This court has defined in loco parentis as “in place of a parent; instead of a parent; charged factitiously with a parent’s rights, duties, and responsibilities.” Standridge v. Standridge, 304 Ark. 364, 372, 803 S.W.2d 496, 500 (1991). A person who stands in loco parentis to a child puts himself or herself in the situation of a lawful parent by assuming the obligations incident to the parental relation without going through the formalities necessary to a legal adoption. Babb v. Matlock, 340 Ark. 263, 9 S.W.3d 508 (2000). This relationship involves more than a duty to aid and assist, and more than a feeling of kindness, affection, or generosity. Simms, supra.
One’s mere status as a stepparent does not support a finding of in loco parentis. Stair v. Phillips, 315 Ark. 429, 867 S.W.2d 453 (1993). “Something more must be shown to qualify as standing in loco parentis.” Id. at 535 [435], 867 S.W.2d at 456. In loco parentis refers to a person who has fully put himself in the situation of a lawful parent by assuming all the obligations incident to the parental relationship and who actually discharges those obligations. Rutkowski v. Wasko, 286 A.D. 327, 143 N.Y.S.2d 1 (N.Y. App. Div. 1955). A stepparent who furnishes necessities for a minor child of his or her spouse and who exercises some control over the child does not, by those acts alone, establish a parental relationship. Id. In making a determination as to whether a nonparent stands in loco par-entis, courts consider the totality of the circumstances and do not lightly infer the intent of the person seeking to be considered as standing in loco parentis. Smith v. Smith, 922 So.2d 94 (Ala. 2005). While the length of time a person spends with a child is not determinative, it is a significant factor in considering whether that person intended to assume parental obligations or has performed parental duties. Id.
Daniel v. Spivey, 2012 Ark. 39, at 6-7, 386 S.W.3d 424, 438.
| f,McKenzie argues that Moore has a caring relationship with M.M. but does not stand in loco parentis. She contends that this case aligns more closely with cases in which the appellate court held that no in loco parentis relationship existed, specifically citing Daniel, supra; Standridge v. Standridge, 304 Ark. 364, 803 S.W.2d 496 (1991); and Walchli v. Morris, 2011 Ark. App. 170, 382 S.W.3d 683. In Daniel, our supreme court reversed a finding of in loco parentis, stating that while the stepfather had “occasionally tended to [the child’s] needs, provided necessities, babysat, and attended school programs ... the sum of these facts demonstrates that appellee assumed the role of a caring stepparent, but they fall well short of establishing that appellee embraced the rights, duties, and responsibilities of a parent.” 2012 Ark. 39, at 8-9, 386 S.W.3d 424, 429. In Standridge, a probate case, the supreme court held that there was no evidence that the decedent, Standridge, had formed the intent to assume the duties and benefits of becoming a parent to his stepson. And in Walchli, this court explained that, while a grandmother had been actively involved and helped watch her grandson while his father was at work, there was no evidence that the father intended the grandmother to do so as if she were another parent.
McKenzie argues that, like the cases above, the majority of Moore’s relationship with M.M. was in the role of babysitter, Moore was only married to Ron and lived in the same household as M.M. for thirteen months, and Moore was “just a ‘earing stepparent.’ ” McKenzie acknowledges that Moore “had many duties and responsibilities such as handling the trust he made for his children as well as their basic education, extracurricular, and medical care needs,” but McKenzie claims that “there is no mention in the record |7that the father thought of Ms. Moore as a co-parent with equal decision-making authority, or parental ‘rights,’ that he and the mother had as parents.”
McKenzie also asserts that the court erred when it “over relied” on M.M.’s testimony. Here she cites Daniel, supra, and Zulpo v. Blann, 2013 Ark. App. 750, 2013 WL 6712532, in which this court affirmed a finding that two adult stepsons were not entitled to share money from a wrongful-death settlement because the deceased had not stood in loco parentis to them. We noted that a warm relationship existed between the deceased and the appellants, as evidenced in part by the testimony of both stepsons, but “at no time did Mr. Blann assume the role or responsibilities of a parent with regard to either appellant.” Id. at 4.
In our view, this case is more like the cases in which an in loco parentis relationship has been affirmed: Robinson, v. Ford-Robinson, 362 Ark. 232, 208 S.W.3d 140 (2005) and Bethany v. Jones, 2011 Ark. 67, 378 S.W.3d 731. As this court explained in Walchli: “In both Bethany and Robinson, the petitioner’s relationship to the child was as a primary caregiving parent. In both cases, the child had only one custodial, biological parent along with the petitioning, nonbiological co-parent. The petitioner in both cases stood in the place of a parent to the child.” 2011 Ark. App. 170, at 8, 382 S.W.3d 683, 688. Here, Moore’s husband had full custody of M.M., Moore took care of M.M. during the years that she and Ron dated, and the child lived with Moore and her husband as a family unit after they were married. M.M.’s testimony, which the circuit court credited, further supports that court’s decision. Given the evidence presented to the circuit court, we hold that the court did not clearly err in finding that an in loco parentis relationship existed and affirm the visitation order.
|RAffirmed.
Hixson and Hoofman, JJ., agree.
. Moore was also the stepmother of V.M., M.M.'s sister, but V.M. turned eighteen during this case and was not subject to the visitation order. | [
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ROBERT J. GLADWIN, Chief Judge
_|jThis is a no-merit appeal from the revocation of appellant Ricky Peals’s probation by the Crittenden County Circuit Court, for which he was sentenced to three years in the Arkansas Department of Correction, followed by four years’ suspended imposition of sentence.
Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Rule 4 — 3(k) (2014) of the Rules of the Supreme Court and Court of Appeals, appellant’s couns'el has filed a motion to withdraw on the ground that this appeal is wholly without merit. The motion is accompanied by an abstract and addendum of the proceedings below, alleged to include all objections and motions decided adversely to appellant, and a brief in which counsel explains why there is nothing in the record that would support an appeal. The clerk of this court provided appellant with a copy of his counsel’s brief and notified him of his right to file a pro [2se statement of points for reversal within thirty days. Appellant did not file pro se points, and as a consequence, the State Attorney General has not filed a brief in response.
As this is a no-merit appeal, counsel is required to list each ruling adverse to the defendant and to explain why each adverse ruling does not present a meritorious ground for reversal. See Anders, supra; Ark. Sup. Ct. R. 4-3(k)(l); Eads v. State, 74 Ark. App. 363, 47 S.W.3d 918 (2001). The test is not whether counsel thinks the circuit court committed no reversible error, but whether the points to be raised on appeal would be wholly frivolous. See Anders, supra; Eads, supra. Pursuant to Anders, we are required to make a determination of whether the case is wholly frivolous after a full examination of all the proceedings. See Anders, supra; Eads, supra.
In compliance with the directive in Anders, supra, and' Rule 4-3(k), counsel claims that he has thoroughly examined the record of this proceeding but found no error that would support an appeal. The circuit court in this matter made only one evidentiary ruling adverse to appellant — in addition to the revocation itself — and that was an attempted “confrontation” objection at the revocation hearing that was overruled. During direct examination, witness Albert Caldwell testified that he was on his way to work and received a call from his aunt that the police were at his apartment. The following colloquy occurred:
Mr. Williams: I object to confrontation, Your Honor.
The Court: He can say what the name is, overruled.
Mr. Caldwell: My aunt’s name is Kimberly Garrett.
In his brief, counsel references Arkansas Rule of Evidence 602 (2014):
IsRule 602. Lack of personal knowledge. A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the testimony of the witness himself. This rule is subject to the provisions of Rule 703, relating to opinion testimony by expert witnesses.
Counsel urges that the circuit court was correct in its ruling because the witness had personal knowledge of the name of his aunt.
Additionally, although the rules of evidence are not strictly applicable in revocation proceedings, the right to confront witnesses is applicable. Stillwell v. State, 2010 Ark. App. 546. In Stillwell, this court cited Goforth v. State, 27 Ark. App. 150, 767 S.W.2d 537 (1989), in which we held that a probationer’s right to confront witnesses must be weighed against the State’s reasons asserted for not requiring confrontation. While the circuit court did not specifically perform the balancing test required in Goforth, such error is harmless in this case because appellant’s probation was properly revoked on another basis. The State need only show that the appellant committed one violation in order to sustain a revocation. See Stillwell, supra.
Counsel’s discussion does not squarely reconcile the “confrontation” objection with the ruling by the circuit court. But under either analysis, it was proper for the circuit court to overrule the objection, and there is no basis for a meritorious appeal on this issue.
The second “ruling” that was adverse to appellant is the revocation itself. We hold that there is sufficient evi dence to support the revocation. Appellant’s conditions of probation required, in part, that he (1) pay all fines and costs as ordered, and (2) live a law-abiding life and not violate state law. Probation may be revoked upon a finding by a ^preponderance of the evidence that the defendant has inexcusably failed to comply with a condition of the probation. Vail v. State, 2014 Ark. App. 407, 438 S.W.3d 286. On appeal, a revocation will not be overturned unless the decision is clearly against the preponderance of the evidence. Id. We must give due regard to the circuit court’s superior position in determining the credibility of witnesses and weight to be given their testimony. Id. In order to support revocation of probation, the State has the burden of proof but need to prove only one violation of conditions of probation. Robinson v. State, 2014 Ark. App. 579, 446 S.W.3d 190.
Where the alleged violation involves the failure to pay ordered amounts, after the State has introduced evidence of nonpayment, the burden shifts to the probationer to provide a reasonable excuse for the failure to pay. Scroggins v. State, 2012 Ark. App. 87, 389 S.W.3d 40. It is the probationer’s obligation to justify his failure to pay, and this shifting of the burden of production provides an opportunity to explain the reasons for nonpayment. Id. If the probationer asserts an inability to pay and provides evidence demonstrating that inability, then the State must demonstrate that the probationer did not make a good-faith effort to pay. Id. Despite the shifting of the burden of production, the State shoulders the ultimate burden of proving that the probationer’s failure to pay was inexcusable. Id. If the probationer offers no reasonable explanation for his failure to pay, then it is difficult to find clear error in a circuit court’s finding of inexcusable failure. Id.
The circuit court found by a preponderance of the evidence that appellant had inexcusably failed to comply with condition number one by not paying his fines and costs |sas ordered. The circuit court also found that, based on the testimony of Mr. Caldwell, appellant violated condition number two by committing residential burglary and theft.
Regarding condition one, Amy Peyton, collector of fines at the sheriffs office, testified that she received documentation reflecting that appellant, in case CR-08-667, was assessed a fine of $250 and costs of $770, all of which he was to pay at twenty dollars per month. Between January 12, 2009, and June 7, 2013, his last payment, he paid $405 and had a balance owing of $1020. She identified a computer printout and ledger sheet reflecting the amounts testified to. Appellant did not testify regarding this condition.
With respect to condition two, Mr. Caldwell testified that on September 23, 2011, he was on his way to work when he got a call that the police were at his apartment. When he got there he found that his door was messed up, “like it had been kicked in.” Items missing were a refrigerator, a television, a DVD player, and some pants and shirts. The next day, when appellant saw him coming out of his apartment, he told Mr. Caldwell that he had taken the items because Mr. Caldwell’s roommate, Richard Flowers, had taken a cell phone from appellant, which had nothing to do with appellant breaking into the apartment and taking the items and returning everything taken. Mr. Caldwell also testified that he did not give appellant permission to enter his property. Appellant did not testify regarding this issue.
Appellant did not testify to and provide a reasonable excuse for not having complied with either of these conditions. Therefore, the findings of the court were not clearly against the preponderance of the evidence. See Hutchinson v. State, 2014 Ark. App. 670, 449 S.W.3d 332.
| (¡Counsel has carefully reviewed the record for any meritorious appeal issues and finds none. Counsel has discussed possible appeal issues above, and explained why none have merit. Rule 4 — 3(k)(l). From our review of the record and the brief presented to us, we find compliance with Rule 4-3(k), and we grant counsel’s motion to be relieved and affirm the order of revocation.
Affirmed; motion granted.
Whiteaker and Hixson, JJ., agree. | [
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PER CURIAM
|,In 2008, appellant Ronald Edward Parker entered a plea of guilty to second-degree sexual assault and was sentenced as a habitual offender to 204 months’ imprisonment. On June 10, 2014, appellant filed in the trial court a pro se motion asking that a “prison bond” be set and that he be granted a pardon. The motion was denied by the trial court on June 20, 2014. On July 16, 2014, appellant filed a second motion seeking to have bond set and a pardon granted. He also filed on that day a motion asking the court to “press charges” on two persons for making false accusations against him in 2002 that caused his arrest and ultimately caused him to be imprisoned. The court denied both motions in separate orders entered July 16, 2014. Also on July 16, 2014, appellant filed a notice of appeal in which he stated that he was appealing from the final order of the trial court entered on July 7, 2014.
The record was lodged with this court on October 14, 2014. Parker now asks by pro se motion that counsel be appointed to represent him on appeal.
li>We first note that there is no order in the record that was entered on July 7, 2014. However, Parker may have been intended to appeal from the June 20, 2014 order as the notice of appeal was timely as to that order. Therefore, the date of the order may have been a mere scrivener’s error on Parker’s part. See Lenard v. State, 2014 Ark. 248, 2014 WL 2158139 (per curiam).
Even so, we find cause to dismiss the appeal because it is clear from the record that Parker could not prevail on appeal from any of the orders. All three motions that Parker filed in the trial court sought postconviction relief from the judgment entered in 2003. Such motions are considered as requests for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2003). An appeal of the denial of postconviction relief will not be permitted to go forward where the appeal is without merit. See Stewart v. State, 2014 Ark. 85, 2014 WL 689043 (per curiam).
In the motions before the trial court, Parker argued that he should be released from prison because he had lost contact with family and friends during incarceration, he has been unable to access the legal documents he needs to challenge the judgment in his case, there were inconsistencies in the evidence against him and the evidence was insufficient to sustain the judgment, and he needs to be at home to assist his aging grandmother. The motions, and also the motion seeking to charge two other persons with criminal offenses, raised a variety of allegations seeking relief from the judgment itself. However, regardless of the label placed on a pleading by the petitioner, a pleading that mounts a collateral attack on a judgment is governed by the provisions of our postconviction rule, Rule 37.1. Green v. State, 2014 Ark. 115, 2014 WL 1096184 (per curiam). Because Parker’s motions request postconviction relief from the 2003 judgment, the three motions were not timely filed.
|,-.Pursuant to Rule 37.2, when a petitioner enters a plea of guilty, any petition for postconviction relief must be filed within ninety days of the date that the judgment was entered of record. Ark. R.Crim. P. 37.2(c)(i) (2003). The time limitations imposed in Rule 37.2(c) are jurisdictional in nature, and, if they are not met, the trial court lacks jurisdiction to grant postconviction relief. Talley v. State, 2012 Ark. 314, 2012 WL 3364266 (per curiam). Because Parker’s motions were filed in the trial court more than ninety days after the judgment had been entered of record in 2008, the trial court had no jurisdiction to grant the relief sought. When the lower court lacks jurisdiction, the appellate court also lacks jurisdiction. Ussery v. State, 2014 Ark. 186, 2014 WL 1673818 (per curiam).
With respect to appellant’s request that the trial court grant him a pardon, pardons and executive clemency are within the purview of the executive branch of government. Ark. Const, art. 6, § 18. Under our constitution, the executive branch has sole authority to grant pardons and clemency. See Coones v. State, 280 Ark. 321, 657 S.W.2d 553 (1983) (citing Smith v. State, 262 Ark. 239, 555 S.W.2d 569 (1977)). Requests for a pardon or executive clemency are unavailing as grounds for relief in a petition for postcon-viction relief filed in the trial court. See Watkins v. State, 2010 Ark. 156, 362 S.W.3d 910 (per curiam).
Appeal dismissed; motion moot. | [
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PER CURIAM
bNow before us is an appeal brought by appellant Tommy Hall, an inmate incarcerated in a facility in Jefferson County, from the order of the Jefferson County Circuit Court entered December 11, 2013, dismissing his pro se complaint against the prosecuting attorney, a circuit judge, and the circuit clerk in Miller County.
To understand the claims raised by appellant in the complaint, it is necessary to set out the relevant underlying legal proceedings. Appellant alleged in the complaint that, on February 27, 2004, he was arrested in Miller County based on a violation of drug laws and that cash in the amount of $5093 was recovered from his vehicle at the time of his arrest. The record reflects that, on August 24, 2005, the prosecuting attorney filed an in rem complaint in the Miller County Circuit Court on behalf of the State seeking the condemnation and forfeiture of the $5093, and 12a summons was issued by the circuit clerk. The summons indicates that appellant was served with the complaint at 3:00 p.m. on that same date. Appellant did not respond to the complaint, and, on March 29, 2006, the circuit judge granted the State’s motion for default judgment and ordered the forfeiture of the $5093.00. Subsequently, an amended order of forfeiture was entered in the amount of $5146.42 to reflect the accrual of interest. Appellant did not appeal from the judgment.
On July 23, 2013, appellant filed a complaint in the Jefferson County Circuit Court against the Miller County prosecuting attorney, the circuit clerk, and the circuit judge who presided in the forfeiture action based on allegations stemming from the 2006 default judgment. The crux of the complaint appeared to be a collateral attack on the judgment based on allegations that the Miller County Circuit Court lacked jurisdiction to hear the in rem complaint because it was untimely, that appellant did not receive notice of the in rem complaint or the motion for default judgment, and that the summons stated that he had thirty days instead of twenty days to respond to the complaint. Appellant also alleged that the circuit judge had refused to rule on his petition to vacate the default judgment and that the circuit judge and the circuit clerk were withholding the certified documents necessary to seek an order from this court requiring the circuit judge to rule on his petition to vacate. The circuit court dismissed the complaint with prejudice and noted that the dismissal of the complaint would be considered a strike pursuant to Arkansas Code Annotated section 16-68-607 (Repl. 2005). Appellant brings this appeal. We affirm the order | ^inasmuch as it is clear from the record that the action was barred as a matter of law.
When reviewing a circuit court’s order granting a motion to dismiss, we treat the facts alleged in the complaint as true and view them in the light most favorable to the plaintiff. See Biedenharn v. Thicksten, 361 Ark. 438, 206 S.W.3d 837 (2005). “In viewing the facts in the light most favorable to the plaintiff, the facts should be liberally construed in the plaintiffs favor. Our rules require fact pleading, and a complaint must state facts, not mere conclusions, in order to entitle the pleader to relief.” Id. at 441, 206 S.W.3d at 840 (internal citations omitted). Our standard of review for the granting of a motion to dismiss is whether the circuit court abused its discretion. Doe v. Weiss, 2010 Ark. 150.
There was no abuse of discretion in this matter. First, the circuit judge, who found that the State was entitled to a default judgment and ordered the forfeiture, had judicial immunity for actions taken in the execution of his judicial duties. See Peterson v. Judges of Jefferson Cnty. Circuit Court, 2014 Ark. 228 (per curiam). The United States Supreme Court noted in Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967) that it is the judge’s duty to decide all cases within the judge’s jurisdiction, including cases that evoke intense feelings in the litigants, and that the judge should not have to fear that dissatisfied persons will proceed against the judge with litigation. This immunity provides the judge with not merely a defense from liability for the judge’s actions, but absolute immunity from suit. See Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). The scope of a judge’s jurisdiction is broadly construed where the subject at issue is the immunity of the judge from suit. Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978). If the judicial officer has jurisdiction of the person and of the subject matter, he or she is exempt from civil liability so long as the actions are within the [¿judicial officer’s judicial capacity. See Hutson v. State, 171 Ark. 1132, 287 S.W. 398 (1926). The two-part test for judicial immunity established by Stump, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331, requires that we determine whether the judge named by appellant in the complaint had jurisdiction to act on the in rem complaint filed in Miller County and whether the acts about which appellant complains were judicial acts. While appellant argues that the Miller County Circuit Court did not have jurisdiction over the forfeiture action based on the allegation that the in rem complaint was untimely, the circuit judge clearly had the requisite jurisdiction to hear the in rem complaint and to render a decision in his judicial capacity. Accordingly, the circuit judge named in the complaint was entitled to judicial immunity. Appellant’s recourse was to raise any challenges to the default judgment on appeal; his remedy was not to file a civil complaint against a judicial officer in which he collaterally attacked the judgment.
Second, the prosecuting attorney, who filed the in rem action seeking the forfeiture, had absolute immunity from suit for acts committed in the performance of the duties of his office. See Culpepper v. Smith, 802 Ark. 558, 792 S.W.2d 293 (1990). It has long been held that public policy demands such immunity for prosecutors and has permitted no diminution or erosion of this defense when the acts complained of are committed within the scope of the duties of the prosecuting attorney’s office. Id. In Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976), the United States |sSupreme Court, distinguishing whether a prosecuting attorney was entitled to absolute immunity or qualified immunity, focused on what function the prosecuting attorney was engaged in at the time of the alleged wrong, and it drew a distinction between the prosecutor’s role as an advocate and the role of an administrator or investigator. When the actions of a prosecuting attorney involve his role as an administrator or investigator, he is entitled to qualified, rather than absolute, immunity.
Pursuant to Arkansas Code Annotated section 5-64-505(g)(1)(A) (Supp. 2011), the prosecuting attorney shall initiate forfeiture proceedings by filing a complaint with the circuit clerk of the county where the property was seized. Appellant alleges on appeal that the prosecuting attorney did not provide adequate notice of motions and pleadings filed in the foreclosure action, that he filed an untimely in rem complaint, and that the summons was defective. These allegations clearly involve the prosecuting attorney’s role as the advocate for the State in seeking the foreclosure rather than as an administrator or investigator. Thus, the prosecuting attorney was entitled to absolute immunity from suit.
As appellant does not raise any argument for relief on appeal against the circuit clerk, he has abandoned any claim against her. Because both the circuit judge and the prosecuting attorney had absolute immunity from suit, the circuit court properly dismissed the complaint with prejudice.
Affirmed.
. Appellant alleged in his complaint that he was served with a previously filed in rem complaint seeking forfeiture of the $5093 on March 1, 2004, and that the complaint was later ''secretly” dismissed. The referenced in rem complaint is not included in the record.
. Appellant does not argue on appeal that he is entitled to any relief based on the allegation that the circuit judge or the circuit clerk refused to provide requested certified documents. Rather, he only alleges that the circuit judge refused to rule on his petition to vacate the default judgment "with the circuit clerk saying she cannot act because the judge is re fusing/failing to sign off on judicial documents.” All arguments made below but not raised on appeal are abandoned. Abernathy v. State, 2012 Ark. 59, 386 S.W.3d 477 (per curiam); Shipman v. State, 2010 Ark. 499, 2010 WL 5185781 (per curiam) (citing State v. Grisby, 370 Ark. 66, 257 S.W.3d 104 (2007)). | [
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KAREN R. BAKER, Associate Justice
|! This appeal arises from a dispute over a refund of ad valorem taxes. Appellant, Outdoor Cap Co., Inc. (“Outdoor Cap”) was founded in 1976 and is a headwear company with its headquarters and largest distribution center located in Bentonville, Arkansas, in Benton County. Outdoor Cap has been paying ad valorem personal-property taxes in Benton County since 1976. In 2011, Outdoor Cap sought a refund from the appellee, Benton County Treasurer, Benton County Assessor, and the Benton County Tax Collector (“Benton County”) of certain taxes which Outdoor Cap contended that it was entitled to pursuant to Ark. Code Ann. § 26-26-1102 (Repl. 2012). Specifically, this appeal stems from Outdoor Cap seeking a refund of certain taxes paid in 2008 and 2009 for a total of $247,143.02. Benton County opposed the refund. The parties agree that Outdoor Cap is a manufacturer and is entitled to the “manufacturer’s exemption” or the “Freeport exemption” pursuant to Ark. Code Ann. § 26-26-1102. The parties dispute whether Outdoor Cap is Identified to a refund of the 2008 and 2009 taxes that Outdoor Cap asserts were exempt under the “manufacturer’s exemption” and that the taxes were erroneously assessed.
After the Benton County Assessor’s Office denied Outdoor Cap’s request for a refund, on October 4, 2012, Outdoor Cap filed a petition for tax refund in the County Court of Benton County, and Benton County responded. On November 30, 2012, the County Court denied Outdoor Cap’s petition for tax refund. On December 13, 2012, Outdoor Cap appealed the denial to the Benton County Circuit Coürt. On January 2, 2013, Outdoor Cap filed its complaint in the Benton County Circuit Court seeking reversal of the November 30, 2012 order and sought a refund of the alleged overpaid taxes. On January 11, 2013, Benton County answered the complaint and again, opposed the tax refund. The parties filed competing motions for summary judgment and timely responded and replied. On August 28, 2013, the circuit court conducted a hearing and on September 12, 2013, the circuit court granted Benton County’s motion for summary judgment and denied Outdoor Cap’s motion for summary judgment, finding that Outdoor Cap was not entitled to a refund of any portion of the 2008 and 2009 personal-property taxes it had paid.
From that order, on January 10, 2014, Outdoor Cap timely appealed to the court of appeals and on September 23, 2014, we assumed jurisdiction of this case. Outdoor Cap presents three points on appeal: (1) whether the circuit court erred in finding that the personal-property tax was not “exempt” from taxation; (2) whether the circuit court erred in determining the per sonal property was not erroneously assessed; and (3) whether the circuit court erred in applying the voluntary payment doctrine.
|gl. Standard of Review
We have ceased referring to summary judgement as a “drastic” remedy and now simply regard it as one of the tools in the trial court’s efficiency arsenal. Laird v. Shelnut, 348 Ark. 632, 641, 74 S.W.3d 206, 211 (2002). A summary judgment should be granted only when the state of the evidence as portrayed by the pleadings, affidavits, discovery responses, and admissions on file is such that the nonmoving party is not entitled to a day in court, i.e., when there is not any genuine remaining issue of material fact and the moving party is entitled to judgment as a matter of law. Wallace v. Broyles, 332 Ark. 189, 961 S.W.2d 712 (1998). “Normally, on a summary-judgment appeal, the evidence is viewed most favorably for the party resisting the motion and any doubts and inferences are resolved against the moving party, but in a case where the parties agree on the facts, the appellate court simply determines whether the ap-pellee was entitled to a judgment as a matter of law.” City of Little Rock v. Pfeifer, 318 Ark. 679, 887 S.W.2d 296 (1994).
Additionally, this case presents an issue of statutory interpretation. Issues of statutory construction are reviewed de novo on appeal, and it is for the appellate court to determine the meaning of a statute. Hodges v. Huckabee, 338 Ark. 454, 995 S.W.2d 341 (1999). The appellate court is not bound by the circuit court’s interpretation, but in the absence of a showing that the circuit court misinterpreted the law, the trial court’s interpretation will be accepted as correct. Id. We construe the statute so that no word is left void, superfluous, or insignificant, and we give meaning and effect to every word in the statute, if possible. Miller v. Enders, 2013 Ark. 23, at 6-7, 425 S.W.3d 723, 726-27.
|4II. Points on Appeal
A. Whether The Circuit Court Erred in Finding That the Personal-Property Tax Was Not Exempt From Taxation
For its first point on appeal, Outdoor Cap contends that the circuit court erred in finding that the personal-property tax was not “exempt” from taxation. Citing to Ark. Code Ann. § 26-26-1102(b)(l)(A)-(B) (Repl. 2012) and Omega Tube & Conduit Corp. v. Maples, 312 Ark. 489, 850 S.W.2d 317 (1993), Outdoor Cap contends that its personal property is subject to the manufacturer’s exemption, also known as the “Freeport” or “no situs” law. Thus, it contends that the property at issue was exempt from taxation and that the tax at issue was void and should be refunded.
Outdoor Cap first contends that the property is exempt from taxation pursuant to “the manufacturer’s or Freeport exemption” Ark. Code Ann. § 26-26-1102(b)(£ )(B). Because the property is exempt, the tax must be rendered void because article 16, section 6, of the Arkansas Constitution provides that all other laws outside of Arkansas’s Constitution which exempt property from taxation are void. Accordingly, Outdoor Cap contends that the property is not subject to taxation, is “exempt” from taxation, the taxes are void, and it is entitled to a refund on the 2008 and 2009 years.
Benton County responds that the “manufacturer’s exemption” applies to the taxes at issue, but does not create an “exemption” from taxation. Rather, the property is in transit and will be taxed where the item is eventually sold. It further re sponds that the property is not “exempt” from taxation and a valid tax. Rather than “exempt,” Benton County ^contends that Ark. Code Ann. § 26-26-1102(b)(l)(B) statutorily creates an exception for property in transit to be taxed while being manufactured and the property does not attain “tax situs” allowing it to be taxed in Arkansas. Stated differently, the statute does not create exemption status for the property but creates an exception to attaining tax situs. Benton County further responds that Omega Tube is controlling and that the circuit court correctly denied the refund.
Outdoor Cap replies that based on Omega Tube the property at issue is free from taxation by virtue of not acquiring “situs” in Arkansas and cannot be taxed, and thus a refund is appropriate.
At issue is the circuit court’s September 12, 2013 order, in which the circuit court held,
The personal property at issue here is not exempt. It is not to be assessed because it acquires “no situs in this State.” ARK. CODE ANN. § 26-26-1102(b)(1)(B). If it were to stay in Arkansas, acquire a situs, it would be assessed for taxation. The Defendants have jurisdiction for — tax purposes. The Plaintiff’s error is not a deviation from law.
It is well settled that every taxpayer is charged with knowledge of the law and that a voluntary payment of personal property taxes which the law would not require to be paid, does not provide a basis for a refund of personal property taxes paid by the taxpayer. The Plaintiff paid the 2008 and 2009 personal property taxes as a result of its own error, and therefore is not entitled to a refund of those tax payments. Rutherford vs. Barnes, 312 Ark. 177, 847 S.W.2d 689 (Ark., 1993); and Omega Tube ..., 850 S.W.2d 317, 312 Ark. 489 (Ark., 1993).
The statute at issue, Ark. Code Ann. § 26-26-1102 'provides in pertinent part:
(a) Al real estate and1 tangible personal property shall be assessed for taxation in the taxing district in which the property is located and kept for use.
(b)(1)(A) Tangible personal property in transit for a destination within this state shall |fibe assessed only in the taxing district of its destination.
(B) Tangible personal property in transit through this state, including raw materials from within or outside this state used in the manufacturing process and tangible personal property manufactured, processed, or refined in this state and stored for shipment outside the state, shall, for purposes of ad valorem taxation, acquire no situs in this state and shall not be assessed for taxation in this state.
(C) The owner of tangible personal property in transit through this state and of tangible personal property in transit for a destination within this state may be required, by the appropriate county assessor, to submit documentary proof of the in-transit character and the destination of the property.
In Omega Tube, we interpreted Ark. Code Ann. § 26-26-1102 which contained the same language in our current statute, and the statute’s application to certain materials. We held,
Given the ambiguity of the Statute, our understanding of the intent of the General Assembly, and the interpretation and application given to § 26-26-1102 by officials, we hold § 26-26-1102 exempts from ad valorem taxation raw materials shipped to Arkansas for inclusion in tangible personal property manufac tured, processed, or refined here for shipment outside the state.
Omega Tube, 312 Ark. at 497, 850 S.W.2d at 321.
In Omega Tube, we also issued a supplemental opinion and denied Pulaski County’s petition for rehearing, and we further explained our interpretation of Ark. Code Ann. § 26- 26-1102 and held:
Pulaski County argues our opinion is contrary to Ark. Const, art. 16, §§ 5 and 6. The County, again citing Eoff v. Kennefick-Hammond Co., 80 Ark. 138, 96 S.W. 986 (1906),. says we misused the terms “exempt” and “exemption” as only certain property listed in the Constitution may be “exempted” from taxation. In the Eoff case, in addition to the Commerce Clause issue, we interpreted a statute now codified as Ark. Code Ann. § 26-3-201 (Repl. 1992) which, in relevant part, provides, “All property, whether real or personal, in this state; ... shall be subject to taxation.” We held property brought to Arkansas to use in construction of a railroad |7was not in transit but acquired a tax situs here. We did not have before us Act 269 of 1969 [Ark. Code Ann. § 26-26-1102 (Repl. 1992) ].
It was not our intention to declare the property in question “exempt” in the constitutional sense; rather, according to § 26-26-1102, it does not attain a tax situs in Arkansas.
Id. at 499, 850 S.W.2d at 322 (emphasis added).
Accordingly, based on Omega Tube, we have previously examined this statute at issue and held that the manufacturer’s exemption according to Ark. Code Ann. § 26-26-1102 means that the property does not attain a tax situs in Arkansas. We further held that the property was not exempt in the constitutional sense. Thus, we agree with Benton County that Omega Tube is on point. The property at issue here is not exempt but rather, as in Omega Tube, the property does not attain a tax situs in Arkansas. Accordingly, based on our standard of review, we affirm the circuit court on this first point.
B. Whether The Circuit Court Erred in Determining the Personal Property Was' Not Erroneously Assessed
For its second point on appeal, Outdoor Cap alternatively asserts that it is due a refund of the taxes and that the circuit court erred in finding that the taxes were not erroneously assessed. Outdoor Cap contends that the property at issue was erroneously assessed because the property did not acquire tax situs in Arkansas and was misclassified as taxable property. Outdoor Cap further contends that Ark. Code Ann. § 26-35-901 allows for refunds for erroneously assessed property and its property falls within the definition of “erroneous assessment” in Ark. Code Ann. § 26-28-lll(c) and is therefore entitled to a refund.
Benton County responds that if Outdoor Cap’s property was erroneously assessed, it 18is entitled to a refund. However, Benton County contends that the property was not “erroneously assessed” but rather, Outdoor Cap overvalued its property and failed to claim a credit it was due for the tax period at issue. Stated differently, if Outdoor Cap had properly identified its property as being in transit for the relevant time periods, it would not have acquired tax situs and not been taxed. Benton County further responds that Ark. Code Ann. § 26-35-901 allows for refunds for “erroneously assessed” property and Ark. Code Ann. § 26- 28-lll(c) defines “erroneous assessment,” which does not include the property at issue.
At issue is the circuit court’s order which states in pertinent part:
The Plaintiffs error in completing the personal property tax assessment form is analogous to the tax payer’s error committed in the case of Ritchie Grocer Co. vs. City of Texarkana, 30 S.W.2d 213, 182 Ark. 137 (Ark. 1930). Ritchie Grocer Co. paid personal property tax on its notes, credits, and accounts, and failed to reduce the value of the property by the amount of notes, credits, and accounts it owed to others. In an action seeking a refund, the Arkansas Supreme Court held that an “erroneous assessment” was one which:
deviates from the law and is therefore invalid, and is a defect that is jurisdictional in nature, and does not refer to the judgment of the assessing officers in fixing the amount of the valuation of property. Id. at 214-215. If appellant had listed notes, credits, and accounts with the assessor which it did not own or control, then the assessment would have been erroneous. It, however, owned the notes, credits, and accounts it listed, and overvalued them by failing to deduct credits to which it was entitled. This failure did not constitute an erroneous assessment of them under section 10180 of Crawford & Moses’ Digest. Id. at p. 215.
The personal property at issue here is not exempt. It is not to be assessed because it acquires “no situs in this State.” ARK. CODE ANN. § 26-26-1102(b)(1)(B). If it were to stay in Arkansas, acquire a situs, it would be assessed for taxation. The Defendants have jurisdiction for — tax purposes. The Plaintiffs error is not a deviation from law.
IflTurning to the applicable statutes, Ark. Code Ann. §§ 26-35-901 and 26-28-lll(c), we first review Ark. Code Ann. § 26-28-111, “Manner of correcting errors.” Subsection (c) provides:
(c) The provisions of this section shall be applicable only to the correction of actual and obvious errors on the tax books and related records, with such errors being restricted to extension errors, erroneous property descriptions, classifications, or listings, and shall not be utilized to make any change in the valuation of any real or personal property as shown on the tax books and related records other than a change in valuation necessitated by the correction of actual and obvious errors as provided in this section. In no case shall any reduction in the valuation of any real or personal property be made, except such as shall have been ordered by the county equalization board, the county court, the circuit court, or the Supreme Court, or be caused by the correction of actual and obvious errors as provided in this section.
Id. (emphasis added).
Once an error has been identified, the error shall be corrected pursuant to Ark. Code Ann. § 26-35-901, which provides:
(a)(1) When any person has paid taxes on any real property or personal property, erroneously assessed, as defined and described in § 26-28-lll(c), upon satisfactory proof being adduced to the county court of this fact, the county court shall make an order directed to the county treasurer refunding to the person the amount of tax so erroneously assessed and paid.
(2) All erroneous assessment claims for property tax refunds shall be made within three (3) years from the date the taxes were paid.
(b) The general fund of the county shall be reimbursed by transfer to it from funds of the respective taxing units, and the amount contributed by each taxing unit shall be the amount of the erroneous payment received by the taxing unit.
As both parties note, in Ritchie Grocer Co. v. City of Texarkana, 182 Ark. 137, 30 S.W.2d 213 (1930), we interpreted the term “erroneous assessment” and the difference between an “excessive assessment” and “erroneous valuation” by the taxpayer. In that case, 11flwe explained:
This court has defined the distinction between an excessive assessment and an erroneous assessment as used in section 10180 of Crawford & Moses’ Digest. In the case of Clay County v. Brown Lumber Co., 90 Ark. 413, 119 S.W. 251, 253, it was said thát “the term ‘erroneous assessment,’ as there used, refers to an assessment that deviates from the law and is therefore invalid, and is a defect that is jurisdictional in its nature, and does not refer to the judgment of the assessing officers in fixing the amount of the valuation of the property. If the property paid on was exempt from taxation, or if the property was not located in the county, or if the tax was invalid, or if there was any clear excess of power granted, so as to make the assessment beyond the jurisdiction of the assessing officer or board, then the provisions of Kirby’s Dig. § 7180 [Crawford & Moses’ Digest, section 10180] give the owner a remedy for a refunding of such taxes thus erroneously paid; but a remedy is not given by this section to the party aggrieved by reason only of an excessive assessment or overvaluation of his property.” If appellant had listed notes, credits, and accounts with the assessor which it did not own or control, then the assessment would have been erroneous. It, however, owned the notes, credits, and accounts it listed, and overvalued them by failing to deduct credits to which it was entitled. This failure did not constitute an erroneous assessment of them under section 10180 of Crawford & Moses’ Digest.
Ritchie Grocer Co., 182 Ark. at 138-39, 30 S.W.2d at 214.
Here, Outdoor Cap’s situation is analogous to Ritchie Grocer Co.’s. Outdoor Cap failed to identify the property at issue as property that was “in transit” or eligible for the manufacturer’s exemption and therefore overvalued its property. The property was not erroneously assessed or misclassified by the Benton County tax assessor and the failure to properly classify the property as in transit rested with the taxpayer. Accordingly, based on our standard of review, we cannot say the circuit court erred and we affirm the circuit court on this second point.
C. Whether The Circuit Court Erred in Applying the Voluntary Payment Doctrine
For its third point on appeal, Outdoor Cap contends that the circuit court erred in its ^application of the voluntary payment doctrine. Outdoor Cap asserts that Omega Tube does not directly answer Outdoor Cap’s argument because, in that case, this court summarily applied the voluntary payment doctrine in one sentence. Outdoor Cap further contends that it is entitled to a tax refund for erroneously assessed taxes based on refunds available through Ark. Code Ann. § 26-35-901(a). Finally, Outdoor Cap asserts that its payment of taxes was not voluntary but was made under coercion because, if the taxes were not paid, Benton County had the authority to take and sell Outdoor Cap’s property for failing to file and pay taxes.
Benton County responds that the circuit court correctly applied the voluntary payment doctrine because voluntarily paid taxes are not recoverable unless there is an exception where a statute allows recovery. Benton County contends that because there was not an erroneous assessment there is no statute that would allow for recovery. Benton County further responds that Outdoor Cap did not present its coercion argument to the circuit court and the argument is without merit because every taxpayer would have been “coerced” according to Outdoor Cap’s argument because every taxpayer would be subject to penalties if its taxes weren’t paid. Additionally, Benton County responds that Outdoor Cap’s argument is without merit because every taxpayer is charged with knowledge of the law.
In the circuit court’s order regarding the voluntary payment, the circuit court held:
It is well settled that every taxpayer is charged with knowledge of the law and that a voluntary payment of personal property taxes which the law would not require to be paid, does not provide a basis for a refund of personal property taxes paid by the taxpayer. The Plaintiff paid the 2008 and 2009 personal property taxes as a result of its own error, and therefore is not entitled to a refund of those tax payments. Rutherford vs. Barnes, 312 Ark. 177, 847 S.W.2d 689 Ark., 1998); and Omega Tube.
In Rutherford v. Barnes, 312 Ark. 177, 847 S.W.2d 689 (1993), we explained the doctrine of voluntary payment:
We have adopted in this state the common law rule that taxes voluntarily paid are not recoverable. City of Little Rock v. Cash, 277 Ark. 494, 644 S.W.2d 229 (1982) cert. denied 462 U.S. 1111, 103 S.Ct. 2464, 77 L.Ed.2d 1341 (1983). Thompson v. Continental Southern Lines, Inc., 222 Ark. 108, 257 S.W.2d 375 (1953). In both Cash and Thompson, we quoted from Cooley, The Law of Taxation, Ch. 20, § 1282, in establishing the common law rule:
It is well settled that if the payment of a tax is a voluntary payment, it cannot be recovered back, except where a recovery is authorized by the provisions of a governing statute regardless of whether the payment is voluntary or compulsory.... Where voluntary payments are not recoverable, it is immaterial that the tax or assessment has been illegally laid, or even that the law under which it was laid was unconstitutional. The principle is an ancient one in the common law, and is of general application. Every man is supposed to know the law, and if he voluntarily makes a payment which the law would not compel him to make, he cannot after-wards assign his ignorance of the law as a reason why the State should furnish him with legal remedies to recover it back. Ignorance or mistake of law by one who voluntarily pays a tax illegally assessed furnishes no ground of recovery.
Cash, 277 Ark. at 503-504, 644 S.W.2d at 232; Thompson, 222 Ark. at 115, 257 S.W.2d at 379.
Rutherford, 312 Ark. at 179, 847 S.W.2d at 691.
Here, Outdoor Cap voluntarily paid its taxes for the years 2008 and 2009, and did not claim a manufacturer’s exemption for those years. It is presumed to have known the law and its rights under the law. Accordingly, we do not find error in the circuit court’s application of the voluntary payment doctrine to Outdoor Cap’s refund. Therefore, we affirm the circuit court on Outdoor Cap’s third point on appeal.
Affirmed. | [
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BRANDON J. HARRISON, Judge
11 Jose Peraza and Leticia Orellana, individually and as parents and next friends of Daniel Peraza (collectively referred to as Peraza), appeal the denial of a request for attorney’s fees. United Financial Casualty Company (United) has moved to dismiss this appeal. We grant the motion to dismiss the appeal.
In February 2012, James Beene was involved in an automobile accident when his vehicle struck Peraza’s vehicle. In September 2012, Beene’s insurance company, United, filed a complaint for declaratory judgment in the Faulkner County Circuit Court that raised a number of points: (1) Beene’s insurance policy was cancelled on 25 January 2012; (2) Beene renewed his cancelled policy by telephone immediately after the accident on | ^February 13; (3) Beene was told that United would not cover any loss that occurred between January 25 and when he called United on February 13; and (4) Beene knowingly misrepresented material facts by stating that there had been no auto accidents during that time. United sought to rescind the policy, or reform it, to exclude covering the loss from the February 13 accident. Peraza filed a countercomplaint for a declaratory judgment in October 2012, seeking to establish third-party rights pursuant to Ark.Code Ann. § 23-89-303(d)(1) (Repl. 2004).
In a mid-July 2013 letter opinion, the circuit court entered a default judgment against Beene after he failed to respond to the complaint for declaratory judgment; the court denied the declaratory judgment as to Peraza. In early August 2013, Pera-za notified the court that he was seeking attorney’s fees. United opposed any award, and a series of letters between the parties’ counsel and the court debating this issue, including proposed orders, followed.
A letter from Peraza to the court (dated August 23 and file-marked August 26) asked for “direction from the court on the issue of attorney fees.” On September 10, a copy of the August 23 letter was filed; the following handwritten notation appears at the top: “Attorneys fees denied Amy Brazil 8/26/13.” On September 18, the court entered a final order that disposed of all the parties’ pleadings and awarded Per-aza the relief he requested on the merits. Peraza filed a notice of appeal on October 7 — not from the final order — but from “an Order Denying Attorney Fees filed September 10, 2013.” On October 8, Peraza filed a written motion for attorney’s fees; on October 9, he requested a | shearing on the motion. But no hearing was held on the fee-related motion, and the court did not rule on the motion.
This brings us to United’s motion to dismiss this appeal, which it filed with this court in March 2014. United argues that Peraza’s appeal from the circuit court’s handwritten notation on a letter is improper and that the appeal should be dismissed. Peraza argues against the motion, essentially stating that the denial of attorney’s fees on the September 10 letter was a final, appealable order because it “concluded Peraza’s rights to an award of attorney’s fees at that time.”
As we have alluded to already, a main jurisdictional question is whether the September 10 letter is a final, appeal-able order. It is not. First, the September 10 document cannot be categorized as an “order,” because Arkansas Rule of Civil Procedure 58 requires every judgment or decree to be set forth on a “separate document,” and a judge’s handwritten notation on the top of a piece of correspondence from an attorney to a judge does not qualify as a separate document. Ark. R. Civ. P. 58 (2014). Also, an order must be “entered” to be effective, and according to the docket sheet, the only documents entered on September 10 were a letter from attorney Callis Childs to the clerk and a letter from Childs to Judge Brazil. There is no mention in the docket sheet of a judgment or order denying attorney’s fees, a fact that further cuts against Peraza’s argument.
Finally, even if the September 10 letter was deemed an “order,” it was not the final order in this case. The final order was entered eight days after this letter had been filed. For a judgment or order to be final, it must dismiss the parties from the court, discharge |4them from the action, or conclude their rights to the subject matter in controversy. Roberts v. Roberts, 70 Ark. App. 94, 14 S.W.3d 529 (2000). Thus, the order must put the circuit court’s directive into execution, ending the litigation or a separable branch of it. Id. Peraza argues that the letter is a final order as to the attorney’s fees; however, attorney’s fees are a collateral issue, meaning they must be collateral to a final order, so even accepting Peraza’s argument that the letter was the “final ruling” on the attorney’s fee issue, it was filed prematurely. Our supreme court has explained that Ark. R. Civ. P. 54(e), which governs attorney’s fees, is “applicable only upon an entry of judgment that finally concludes the controversy for which attorney’s fees are sought.” Jones v. Flowers, 873 Ark. 213, 217, 283 S.W.3d 551, 555 (2008). Rule 54(e)(2) itself states that a motion for attorney’s fees “must be filed and served no later than 14 days after the entry of judgment”; the rule does not therefore contemplate a motion for, or an award of, attorney’s fees prior to the entry of judgment.
The bottom jurisdictional line is this: we lack jurisdiction over this appeal because the September 10 letter that Peraza has appealed from is not an order, and we have no other fee-related court order to review.
Appeal dismissed.
VAUGHT and BROWN, JJ., agree. | [
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RITA W. GRUBER, Judge
| Manet Tankersley brings this appeal from her conditional guilty plea to first-offense driving while intoxicated. She contends that the circuit court erred in denying her pretrial motion to suppress evidence of her intoxication because an informant’s uncorroborated tip about Tankersley’s illegal behavior was not sufficiently reliable to give the arresting officer reasonable suspicion to pull her over. She argues that the officer did not have reasonable suspicion to make an investigatory stop under our rules of criminal procedure. We find no error, and we affirm the conviction.
When reviewing the denial of a motion to suppress evidence, we conduct a de novo review based on the totality of the circumstances, recognizing the trial court’s supe rior ^opportunity to determine witnesses’ credibility and reversing the findings of historical fact only when they are clearly erroneous. Batchelor v. State, 2014 Ark. App. 682, 450 S.W.3d 245.
At 8:54 p.m. on November 11, 2012, an Arkansas State Police dispatcher took a call from a motorist traveling west on Interstate 40 near Fort Smith, who said that a silver Toyota pickup in front of him was repeatedly “riding the rumble strip.” The dispatcher logged in the call as a possible DWI. The motorist told the dispatcher his name — Barry Gray — and phone number, said that he was driving a black Jeep, and reported the Toyota’s tag number. Gray stayed on the phone with dispatch and followed the pickup on the interstate until a state patrolman made contact with it.
Gray testified at the hearing on the motion to suppress, explaining that he made the phone call after observing the vehicle in front of him:
[I]t would go from one lane to the shoulder of the road, driving down the rumble strip for extended periods of time. Then it would correct, then it would go back and cross to the other lane without signals or anything, and it would drive down the other rumble strip. Yes, on more than one occasion. After watching it go on for several minutes, several occasions, I contacted law enforcement.
Gray testified that he continued his drive home after seeing the officer make contact with the pickup.
Trooper Sam Bass testified that he was at headquarters when dispatch relayed the motorist’s call that he was in a black Jeep following a Toyota pickup “that appeared to be all over the road or intoxicated.” Trooper Bass drove to the crossover at the 9-mile marker, where he observed the two vehicles passing by. He pulled out, got behind the pickup, |sand — without personally observing any traffic violations — made the traffic stop in another mile or two.
Arkansas Rule of Criminal Procedure 3.1 (2014) authorizes a law enforcement officer who is lawfully present in any place to,
in the performance of his duties, stop and detain any person who he reasonably suspects is committing, has committed, or is about to commit (1) a felony, or (2) a misdemeanor involving danger of forcible injury to persons or of appropriation of or damage to property, if such action is reasonably necessary either to obtain or verify the identification of the person or to determine the lawfulness of his conduct.
(Emphasis added.) An investigatory stop is lawful when, considering the totality of the circumstances, an officer acts on particularized and objective reasons indicating that the person may be involved in criminal activity. See Mosley v. State, 2009 Ark. App. 799, at 4, 370 S.W.3d 273, 275. Arkansas Rule of Criminal Procedure 2.1 (2014) defines reasonable suspicion as
a suspicion based on facts or circumstances which of themselves do not give rise to the probable cause requisite to justify a lawful arrest, but which give rise to more than a bare suspicion; that is, a suspicion that is reasonable as opposed to an imaginary or purely conjectural suspicion.
In Frette v. City of Springdale, 331 Ark. 103, 959 S.W.2d 734 (1998), a truck driver phoned the Springdale Police Department and provided the dispatcher with his name, address, and occupation. The caller stated that he had observed an elderly male in a red Volvo tractor-trailer drinking beer in the cab of his vehicle in the commercial-truck parking lot behind McDonald’s. Id. at 106, 959 S.W.2d at 735. Officer Kwano responded to the dispatch and discovered Frette behind the wheel inside a red tractor-trailer parked behind McDonald’s. Id. Officer Kwano approached, ordered Frette to step out of the vehicle, and ^noticed the strong smell of intoxicants on Frette, who swayed as he spoke. Id. Our supreme court used a three-factor approach to determine the reliability of a citizen informant’s report: (1) whether the informant was exposed to possible criminal or civil prosecution if the report is false; '(2) whether the report is based on the personal observations of the informant; and (3) whether the officer’s personal observations corroborated the informant’s observations. Id. at 118, 959 S.W.2d at 741. Under the first factor, the Frette informant’s tip received a high ranking on reliability — above that of an anonymous caller or a confidential informant from the “criminal milieu”— because he identified himself by name, address, and occupation, exposing himself to potential prosecution for making a false report. Id. at 121, 959 S.W.2d at 743. Second, the informant personally observed the alleged criminal activity, providing a basis for knowledge of the tip. Id. Third, the informant’s report was substantially corroborated by the officer’s own observations: he quickly arrived at the specified location and observed the vehicle as described with an older man sitting in the cab. Id. The Frette court concluded that, under the totality of the circumstances, the informant’s tip carried with it sufficient indicia of reliability to justify an investigatory stop under Rule 3.1. Id.
In a recent case, where a 911 caller was run off the road by another vehicle, the Supreme Court used a “commonsense approach” that certain dangerous driving behaviors are “sound indicia of drunk- driving.” Navarette v. California, - U.S. -, 134 S.Ct. 1683, 1690, 188 L.Ed.2d 680 (2014). A reliable tip for dangerous driving behaviors such as “weaving all over the roadway,” crossing the center line and nearly causing head-on collisions, “driving all over the road and weaving back and forth,” and “driving in the median” would generally justify a traffic stop for | ¡^suspicion of drunk driving. Id. at 1690-91 (citations and some internal punctuation omitted); accord Hoay v. State, 348 Ark. 80, 83, 71 S.W.3d 573, 575 (2002) (weaving across lines for a substantial distance would constitute reasonable suspicion of DWI); Piercefield v. State, 316 Ark. 128, 133, 871 S.W.2d 348, 351 (1994) (weaving from highway’s center line to shoulder at late hour gave officer reasonable suspicion). An officer who already has reasonable suspicion of drunk driving need not personally observe suspicious driving. Navarette, 134 S.Ct. at 1691, (citing Adams v. Williams, 407 U.S. 143, 147, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972)) (repudiating the argument that “reasonable cause for a[n investigative stop] can only be based on the officer’s personal observation”). Furthermore,
[o]nee reasonable suspicion of drunk driving arises, the reasonableness of the officer’s decision to stop a suspect does not turn on the availability of less intrusive investigatory techniques. This would be a particularly inappropriate context to depart from that settled rule, because allowing a drunk driver a second chance for dangerous conduct could have disastrous consequences.
Navarette, 134 S.Ct. at 1691-92 (citation and quotation marks omitted).
We now turn to the present case and the reliability of the tip from the citizen informant. Under the first factor of Frette, the tip ranks high in reliability: Gray identified himself by name, phone number, and vehicle — thus exposing himself to possible prosecution for a making false report. The second Frette factor is satisfied because the report to law enforce ment was based on Gray’s personal observation of illegal activity. See also Navarette, 134 S.Ct. at 1689 (noting that an informant’s contemporaneous report of suspicious activity “has long been treated as especially reliable”). As for the third Frette factor — the officer’s corroboration of the informant’s report — Gray’s vehicle and the vehicle that he said was [ fiweaving across the road were observed by Trooper Bass at the location Gray described. An officer need not observe a particular traffic violation to support reasonable suspicion. Navarette at 1691; Frette, 331 Ark. at 121, 959 S.W.2d at 743. In sum, Trooper Bass was not required to personally observe Tankersley’s erratic driving in order to form a reasonable' suspicion of drunken driving and to pull her over.
As a final note, we agree with the State that Tankersley’s reliance on Nottingham, v. State, 29 Ark. App. 95, 778 S.W.2d 629 (1989), is misplaced. In that case, where the owner of a Travel Mart alerted police to a “possible DWI” suspect seen driving a red Ford pickup in a parking lot, the citizen informant’s conclusory allegation was merely the catalyst for further investigation by the officer. Id. Reasonable suspicion was found from the one factor reported by the store owner combined with the officer’s independent observations of the appellant asleep in the parked truck, a beer between his legs, and the truck’s motor still running; the officer’s inability to awaken appellant by tapping on the window; the strong odor of intoxicants when the officer opened the door; and the appellant’s incoherence. Id. at 101, 778 S.W.2d at 632. In the present case, under the common-sense approach of Navarette and the three-factor analysis of Frette, Gray’s tip about Tankersley’s illegal behavior was sufficiently reliable to give Trooper Bass reasonable suspicion to pull her over on suspicion of driving while intoxicated. We affirm the circuit court’s denial of Tankersley’s motion to suppress.
Affirmed.
Kinard and Brown, JJ., agree.
. “With the approval of the court and the consent of the prosecuting attorney, a defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right, on appeal from the judgment, ... to review an adverse determination of a pretrial motion to suppress seized evidence.... ” Ark. R. Crim. P. 24.3(b)(i) (2014). | [
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Wood, J.
This suit was instituted in the Bradley Chancery Court by Mrs. A. A. Hamilton, in behalf of her husband, A. A. Hamilton, and by George Hamilton and Charlie Hamilton, in their own right, to cancel a certain deed executed by the State Land Commissioner to O. C. Colvin, and from C. C. Colvin to the appellant herein, the Bradley Lumber Company, and for an accounting for timber which it was alleged had been cut and removed from the lands by the appellant. The appellees deraigned title from the Government through an alleged patent to one John C. Gillis, and by deed from Gillis to the Hamiltons.
The appellant denied the allegations of appellees’ complaint, and deraigned title through an alleged forfeiture to the State for nonpayment of taxes, and the purchasing thereof by its grantor, C. C. Colvin. Appellant also set up the two years’ statute of limitation under tax title and the seven years ’ statute of limitation by adverse possession.
The decree in the case was rendered May 31, 1912. The decree recited that the action came on for final hearing upon the pleadings and certain documentary evidence and depositions of witnesses (naming them), certain deed and tax records brought in by the clerk, J. A. Watkins, and “the oral testimony of Henley S. Turner, H. E. Bond and J. A. Watkins,” taken ore terms at the bar of the court, and also an agreed statement of facts.
After the term of the court had lapsed at which the decree was rendered, on January 28,1913, appellant filed a motion for a nunc pro tunc order, amending the recitals of the decree so as to show that the oral testimony of Henley S. Turner, H. E. Bond and J. A. Watkins was confined to the point of identifying a record book of the county clerk’s office introduced in evidence, entitled, “Record A of Lands Sold for Taxes.” The court heard and allowed the motion of the 19th day of March, 1913, and ordered the recitals of the decree rendered May 31, 1912, to be amended by adding, after the recital in the decree, “and the oral testimony of Henley S. Turner, H. E. Bond and J. A. Watkins, taken ore terms at the bar of the court,” the following: “And the oral testimony of these three witnesses was to the point, and only to the point of identifying the records of sales of forfeited lands for taxes of 1882, set out above, so far as the court remembers.”
The court could not, by mmc pro tunc entry, bring into the record, by recitals in the decree of what his recollection of the testimony of witnesses was, testimony taken orally before the court. The only way of preserving testimony taken orally before the chancery court was to have same reduced to writing at the time and properly identified by the court and filed and made a part of the record by order of the court, or afterward having it reduced to writing and brought into the record, by bill of exceptions.
The testimony itself must be brought into the transcript of the record, and not the recollection of the judge as to what it contained, or as to what it pertained. Although the recitals of the - decree in the first instance may have been as corrected by the mmó pro tunc order at a later term, still, this would not -have been sufficient to meet the requirements of the law for preserving the testimony taken orally before the court. Beecher v. Beecher, 83 Ark. 426.
To have preserved the testimony taken orally before the court by the recitals in the decree, the testimony itself in haec verba would have to be set forth at length therein, and not merely a recital of the chancellor stating what his recollection of the same was. The memory of the chancellor as to the purport of the testimony can not be taken as a substitute for the testimony itself. In Pirtle v. Southern Lumber Co., 98 Ark. 269, this court held that the certificate of the chancellor as to what a lost deposition contained is a matter outside of the record, and can not be considered on appeal. Only the record itself can be looked to, and the record of the testimony taken orally is the testimony itself, preserved in the ways pointed out above.
The chancellor might be mistaken in Ms recollection concerning the testimony. Therefore, the testimony itself is the only thing that can be considered. The issues in the case could not have been determined except upon a consideration of all the testimony in the case; and whether or not the chancery court erred in its finding’s and decree can only be determined by a consideration of all of the evidence. Since some of the testimony that was before the chancellor has not been brought into this record, we must assume that every question of fact essential under the pleadings to sustain the decree was established by the absent evidence. Barringer v. Bratcher, 90 Ark. 214; London v. Hutchens, 88 Ark. 467; Stuckey v. Lockard, 87 Ark. 232; Brown v. Nelms, 86 Ark. 368; East v. Key, 84 Ark. 429; Beecher v. Beecher, supra; Hardie v. Bissell, 80 Ark. 74.
The decree is affirmed. | [
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Smith, J.
Appellant was indicted for the crime of murder in the second degree, alleged to have been committed by shooting her husband, Arthur Moore, and upon her trial she was convicted of voluntary manslaughter and sentenced to two years’ imprisonment in the penitentiary.
On the 24th of February, 1913, appellant, a negro woman, went to a house of ill repute in the segregated portion of the city of Little Rock, where she found her husband in the company of a negress named Mary Johnson. Appellant says she went to this house to persuade her husband to leave there and return home with her, but that her husband became angry, coaxed her into an alley adjoining the house, and there attacked her with a knife, telling her he would cut her, cursed her, and was about to stab her with the knife when she drew a revolver from her bosom and fired twice, and that deceased then dropped the knife and turned to flee, running out of the alley across the street, and fell dead on the sidewalk. That she then went down the alley in the direction deceased had gone, firing two shots about the time she came out of the alley. She further testified deceased had threatened to kill her if she came to this house for him, that he had beaten her on several occasions, and was a large and powerful man, without regular occupation, and spent Ms time gambling and in places of bad repute; and had been frequently confined in jail. Appellant offered evidence tending to corroborate her in several particulars. It developed that the two first shots both struck the deceased, one striking him in the face and the other in the back part of the shoulder.
The evidence upon the part of the State was to the effect that deceased was unarmed and that defendant went to the house for the purpose of killing her husband; that when she had shot Mm she said, “I killed my husband here, I did, he is my husband;” and, when asked why she Mlled him, she said: “I am the one that done the shooting; I’d soon not to have no man at all than have half a man. ”
Without reviewing the evidence in detail, it is sufficient to say that wMle, according to the evidence on the part of appellant, she fired in her necessary self-defense and should have been acquitted, on the other hand the proof on the part of the State is that the killing was committed deliberately, and the jury tempered justice with mercy because of the circumstances under which the killing was done.
A number of questions are presented by counsel for' appellant, wMch were either not properly saved at the trial, or are not now regarded as prejudicial, or of sufficient importance to require discussion.
Appellant strenuously insists there should be a reversal because of the court’s refusal to give instructions numbered 1 and 3, asked in her behalf. These instructions are as follows:
No. 1. “You are instructed that if you believe from the evidence in this case that defendant saw her husband (this deceased) in the early part of the evening, on the night of the killing, in company with another woman, as she described, she had at least a legal right to interfere and separate them, and that she had a legal right to go to the home where she believed they were staying and to carry with her a weapon to defend herself against any possible attack; and, further, while in an effort to persuade her husband to return home she was attacked by him, she had a perfect right to shoot in her own defense, and should therefore be acquitted.”
No. 3. “If you find from the evidence that defendant fired the first two shots to protect her own life, or to prevent great bodily harm being done her, and that the first two shots were the ones that caused the death of deceased, and though she fired two other shots even after deceased had turned to flee, but that the last two shots neither contributed to nor hastened on the death of deceased, then your verdict should be an acquittal.”
The first instruction is not the law. It is true that one may use in his necessary self-defense a weapon which he is carrying unlawfully; that is, he is not to be deprived of his right to use a weapon in his necessary defense because he is carrying it unlawfully. But this is not the purport of the instruction, for it says: “She had a legal right to go to the home where she believed they were staying and to carry with her a weapon to defend herself against any possible attack.” This instruction, besides being open to the objection that it is argumentative, is subject to the more serious objection that it permits one, who is expecting trouble, and probably looking for it, to be armed and ready for it when it comes.
The third instruction is more nearly correct, and might well have been given. If the first two shots were the fatal shots and were fired in her necessary self-defense, the fact alone that she fired other shots, which neither contributed to nor hastened the death of deceased, would not deprive her of the right to plead self-defense against the fatal shots. But the court gave an extended charge and covered the law of self-defense exhaustively; in fact, appellant complains of the very length of the court’s charge, and the jury was correctly told in the plainest terms when the right of self-defense might he exercised in accordance with the principles announced in many decisions of the court.
It was also urged as a ground for a new trial that appellant could produce some newly-discovered evidence in regard to the finding of the knife in the alley, and to the effect that there were slits in the cloak which appellant wore on the night of the killing. The evidence in regard to finding the knife was cumulative to other testi'mony, and there is no showing why, with any diligence, the cuts in the cloak could not have been proved at the first trial. Moreover, nothing appears of this newly-discovered evidence except in the motion for a new trial, and, as was said in the case of Cravens v. State, 95 Ark. 325, “We can not consider this alleged assignment of error. The bill of exceptions does not show that such testimony was offered to be introduced by the defendant. It is true that such appears to be the case from the. motion for a new trial, but motions for a new trial can not be used to bring into the record that which does not otherwise appear of record.” Here nothing appears in the record in regard to this new evidence except the statements in regard to it found in the motion for a new trial.
Upon the whole case, we think appellant had a fair trial, free from prejudicial error, and the judgment of the court below is accordingly affirmed. | [
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Kirby, J.
(after stating the facts). It is not disputed that the note for $600 to Dan Lewis, and the mortgage to secure the payment thereof, executed by F. F. Erdman and his wife, are valid instruments, and the testimony shows, without contradiction, in fact, that the note secured by the mortgage was duly transferred to Nellie Erdman upon her purchase thereof, and the payment of $600 of her own funds therefor.
Certainly the great preponderance of the evidence, if not the undisputed evidence, shows it was a bona fide transaction, and, under the law, she became the owner of the note, and the mortgage by reason of the purchase of the note and its transfer to her, and had the right to foreclose it without a transfer endorsed upon the mortgage. 27 Cyc. 967; Wilson v. Biscoe, 11 Ark. 44; Biscoe v. Royston, 18 Ark. 509; Hannah v. Harrington, 18 Ark. 85; Pullen v. Ward, 60 Ark. 90.
The mortgaged property was not subject to the execution and attachment, and appellant is entitled to have it subjected to the payment of the note purchased from the mortgagee. Maxey v. Cooper, 94 Ark. 296; Buck v. Bransford, 58 Ark. 289.
The court should have rendered a decree in favor of appellant, subjecting the mortgaged property to the payment of the note secured by the mortgage, of which she was transferee-, free from the attachment lien of the interpleader, and directed the clerk of the 'court to pay the sum for which the property was sold to her to be credited upon the note.
The decree is reversed and the cause remanded with directions to enter a decree in accordance with this opinion. | [
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McCulloch, C. J.
Appellant was convicted of the crime of grand larceny, the charge being that he found a lost pocketbook containing the sum of $22 in money, which was the property of one Elmer Walker, and feloniously appropriated it to his own use, with intent to deprive the owner thereof.
Elmer Walker is a school teacher, and lost his pocketbook, containing the amount of money mentioned above, while going along the road to the country schoolhouse where he was engaged in teaching. He didn’t miss the pocketbook until some time later in the day.
The State introduced as a witness the son of appellant, a child about nine years old, who testified that his father found a pocketbook of the same description as the one that Walker lost, and that it contained money. He testified that he and his father were going along the road on a load of wood, and that his father got down and picked up a pocketbook and put it in his pocket. He said . to his father at the time, “I’ll bet it’s Elmer Walker’s; he lost it.” The witness did not know at that time that Elmer Walker had lost his pocketbook, but came to that -^conclusion from the fact that he had seen Walker pass along the road that morning a short time before his father found the pocketbook, and had seen no one else on ,the road that morning. The child testified that afterward his father told him that the thing he had found and picked up was not a pocketbook, but a stub of a checkbook which he said belonged to a man in the neighborhood by the name of Cotton. It is proved that Cotton ) did not lose the stub of a checkbook. Appellant stated J to other parties that the checkbook belonged to one Clif- ! ton; and Clifton also testified that he had not lost such a book.
Appellant did not introduce any testimony or offer to testify in his own behalf.
The principal contention on behalf of appellant íb that the court erred in permitting the child to testify, who was only about nine years old. The case of Crosby v. State, 93 Ark. 156, is relied on to sustain the contention.
When the child was called upon the witness stand and asked preliminary questions, he began to cry, and the court interposed and sent the child from the room and proceeded with the examination of other witnesses. Later the child was called, and the court very carefully and patiently subjected him to an examination as to his education, degree of intelligence, and other matters necessary to qualify him as a witness. We are of the opinion that the examination does not bring the witness within the rule of disqualification laid down by this court in the Crosby case, supra. It is unnecessary to quote at length the questions propounded to the child or his answers thei'eto, and it is sufficient to say that in our opinion the examination shows that the child possessed the necessary qualifications of a witness as defined by the court in the case above referred to.
The law applicable to this case has been laid down by this court in the recent case of Brewer v. State, 93 Ark. 479, and the trial court accurately followed the law as stated by the court in that opinion. The law is stated there as follows (quoting the syllabus):
“If the finder of lost articles neither knows nor has any means of ascertaining the owner, and appropriates them to his own use, he is not guilty of larceny, whatever may be his intent at the time; if he does know, or has the immediate means of ascertaining, who the owner is, there must be a felonious intent to steal at the time of the taking, in order to constitute larceny.”
The proof is sufficient to establish the fact that Walker lost a pocketbook containing the money, and that it was found by appellant in the public road, and appropriated to his own use. The proof is also sufficient to show that there were at hand immediate means of ascertaining who the owner was. The child jumped at the conclusion that the book had been lost by Walker, and so told his father at the time he picked it up. Of course, he didn’t know that it was Walker’s money, but the conclusion reached was the correct one, and it afforded the finder of the pocketbook immediate means whereby he could have ascertained who was the owner. If appellant, as the finder of the pocketbook, had himself known that Walker was the only person who had recently passed along that way, and for that reason he thought that it was the property of Walker, that would have been sufficient to furnish him with knowledge as to who the owner was, so as to make him guilty of larceny if he undertook to appropriate the property to his own use. So, his receiving that information from one who was possessed of those facts, and had reason to believe that it was Walker’s pocketbook, rendered him guilty of larceny if he took it in his possession with intent to appropriate it to his own use, and deprive the owner thereof of his property.
Our conclusion is that there was enough testimony to establish all the elements of the crime ,of larceny, and that the conviction of appellant was not without evidence legally sufficient to sustain it. It follows, therefore, that the judgment must be affirmed, and it is so ordered. | [
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Wood, J.
The appellants were convicted under the provisions of section 1913, of Kirby’s Digest, which makes it a misdemeanor “to pull down or break the fence, or leave open the gate of the farm, plantation or other enclosed ground of another.”
The appellant, J. C. Miller, sold some land in Q-reene County to J. B. Smith and Mrs. Harrelson. Miller executed separate deeds to the lands, conveying a certain tract to J. B. Smith and a certain other tract to Mrs. Harrelson, which deed contained the following reservation: “The parties of the first part reserve all the merchantable timber upon the tract of land, and shall have the privilege to cut and remove the same within three years from date. The parties of the first part also reserve the sawmill on said tract of land, and shall have three years to remove the same. It is also expressly stipulated and agreed that the parties of the first part heed not deliver possession of the above described property until nine months from this date.”
The proof shows, and the appellants concede, that they cut the gate to an enclosure on the land sold by appellant, J. C. Miller, to Mrs. Harrelson. Appellants contend that the lands did not belong to J. B. Smith, and inasmuch as the indictment charged that the enclosed grounds belonged to Smith, that there was a fatal variance between the indictment and the proof, but the undisputed testimony is, that J. B. Smith, at the time of the alleged trespass, had rented the land on which the alleged trespass took place from Mrs. Harrelson. Therefore, for the purpose of this indictment, the enclosed ground was the property of J. B. Smith. Appellants also testified that they had held possession of the mill lot for three years after the date of the deeds, and had possession of it when the gate was cut. They stated that they had been hauling through the gate all the time, and at the time Smith locked the gate, appellants were hauling with from three to fifteen wagons every day.
Appellants testified that the mill remained on the enclosed lot about eighteen months after the date of the deed. They stated that there was a lot of merchantable timber in the mill lot yet to be cut, and that the mill and boiler were still there; that they did grinding for the public; that during months after the lands were sold; the gates were never, shut, but were left open for the public; that appellants were cutting timber in there any time, and went into the enclosure every day for general purposes—everyday work. Appellants went through the lot when they went in the woods.
The proof on the part of the State tended to show that the fence enclosing the land where the mill was located and on which the trespass is alleged to have taken place was the protection for the crop of J. B. Smith which had not yet been harvested, and that leaving open the gate and tearing down the fence was calculated to turn stock in upon Smith’s crop. Smith explained to appellants that the inside fence which separated the mill lot from the- crop was weak and would not turn stock. Appellants went to the point where Smith had locked up the gate, and J. C. Miller drew his shotgun to prevent Smith or his wife from interfering, while Ben Miller, the son of J. C. cut down the gate. Later Miller hitched his horse to one of the panels of fence and dragged it open, as one of the witnesses testified he said, “for pure hellishness.” This, however, was denied by Ben Miller.
The court instructed the jury to return a verdict of guilty against appellants. Appellants duly excepted to the instruction of the court. The jury returned a verdict in accord with the court’s instructions. Judgment was entered against appellants for the fine imposed by the jury, and this appeal has been duly prosecuted.
The appellants testified that under their contract, they held the lot as they had before the sale, but this must be taken simply as an expression of the opinion of the appellants as to their rights under the contract, for when the deeds are examined, it is manifest that the appellants had no right to the possession of the enclosure for any purpose, except for the purpose of cutting and removing the merchantable timber from the tract of land and also the possession of the sawmill and the right to remove the same from the land. But this reservation only gave to appellants the possession of the lot for the specific purposes named in the deed. It was a mere license to use the land for those purposes, and was not a general right of possession for all purposes in contravention of the possession of the owner. As Smith had the land rented when the alleged trespass occurred, the land, for the purpose of this indictment, must be held as belonging to him. The reservation of the merchantable timber and the privilege to cut and remove the same and also the sawmill, with the privilege of removing it within the time specified, did not give appellants a right to the use of the property for all purposes as the absolute owners thereof, and therefore appellants did not have the right to break down the fence, and to cut down and leave open the gates enclosing the premises belonging to Smith. While they had the right of ingress and egress to the enclosure for the purposes specified in the reservation of the deeds, they had ho right there for any other purpose, and therefore when they left open and broke down the gate and tore down the fence to the enclosure, as the undisputed evidence shows that they did do, they were guilty of the trespass and misdemeanor denounced by the statute, and the court was correct in so telling the jury as a matter of law. The judgment is therefore affirmed. | [
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Wood, J.,
(after stating the facts). The appellant contends that the appellee, Ledwidge, is liable on the contract entered into on the 29th day of Jánuary, 1908, at the organization of the corporation, whereby it wTas agreed between English and Ledwidge, parties of the first part, and J. B. Grant, party of the second part, “that the said Grant has the option at the expiration of one year from that date to return the stock in the English-Grant Lumber Company and receive therefor his said sum of $5,000 without interest.”
Counsel argue that this is the contract upon which the note for $2,000 is based, and that no fraud or mistake induced its execution. No recovery can be had upon the contract of January 29, 1908, for the reason that under the terms of the contract itself appellant Grant had the option to retire one year from the date of that contract, and he could not therefore, before that time, demand of Ledwidge and English the return of the amount of money he had paid in under that contract, upon his offer to surrender the stock which he had received in the English-Grant Lumber Company.
There is no allegation and no proof that the contract of January 29, 1908, was entered into in fraud of appellant’s rights, or that he was induced to enter into said contract upon fraudulent representations made by English and Ledwidge. Appellant does not seek to repudiate that contract and to rescind the same fdr fraud and to sue for a return of the money which he had paid into the English-Grant Lumber Company upon grounds that there had been a breach of said contract; but, on the contrary, he alleged that the contract was in existence and was the basis of the note and contract in suit. Counsel misapprehend the effect of the contract of January 29, 1908, which, as we have stated, permitted him to exercise his option to retire one year from the date of the contract, but not before that time. So the issue in this case is narrowed to whether or not the appellant has the right to recover upon the contract and note executed on May 8, 1908, as set up in his complaint.
Appellee defends on the ground that the note and .contract were executed with the distinct understanding and agreement that the assets of the corporation were sufficient to pay all its outstanding obligations, and that appellant, being informed of the financial condition of the corporation, had made misrepresentations as to its financial condition by which the appellee, Ledwidge, was induced to execute the note and contract.
Concerning the execution of this note and contract, the appellant testified substantially as follows: That he could not get along agreeably with English and Ledwidge. and was to withdraw from the company under agreement. The company at that time had enough money in cash to pay him for his stock. Most of it was in notes and checks. “The notes of the Central Lumber Company,” says appellant, “were to be turned over to me, and the Central Lumber Company owed the English-Grant Lumber Company $1,930 in notes and another $1,000 in cash. Chris Ledwidge was to negotiate for the money on the notes of the Central Lumber Company to pay me out. I never got the money. So they paid me that note in payment of my stock when I sold the stock to them. They gave me this note and I accepted it for fifteen days. Mr. Ledwidge said he would negotiate the note and pay me in cash for the stock. He didn’t do it. Then he gave me that note, the one I am suing on. I don’t remember that I made any statement to Chris Ledwidge or E. Y. English with reference to the financial condition of the English-Grant Lumber Company, because Mr. English was as familiar with the business as I was. I didn’t tell them I had paid the debts of the company, and didn’t tell them that there was any cash in the bank. I don’t remember that I told English and Ledwidge that there was enough bills and accounts receivable to pay all the debts of the.company. I won’t swear to that, as I don.’t remember. Mr. Ledwidge knew about the business. He knew about the condition of the company. He knew through Mr. English, and sometimes he asked me about it and I gave him my knowledge. At the time I was transferring the stock. Mr. English made out the statement, and he and Mr. English understood very thoroughly about it. I was with Mr. English when the statement was made. It was presented by Mr. English. It was a statement of everything in connection with the business. It was a statement of the financial condition. I assisted Mr. English in making it up. I understood it was made up for the purpose of having this trade go through. As far as I know about it, the statement was all right, true, of course. I didn’t tell Ledwidge that certain bills had been paid that had not been paid. I didn’t tell him that certain cheeks had not been drawn on the account when as a matter of fact they had been drawn on the account of the corporation. I didn’t tell Ledwidge anything with reference to the financial condition of the corporation which was not true. The note sued on here and the contract which went with it constituted our entire agreement. This instrument (referring to the statement) is a carbon copy of the original list of assets and liabilities of the English-Grant Lumber Company, which Mr. English and I prepared, and which Mr. English submitted. As far as I know, the statement attached to my deposition is true, as to the condition of the company on May 8, 1908. It was as near as I could get it. I was secretary and had charge of the books, accounts and papers of the company. I was active in the management of the affairs of the company. I understood that they were the assets and liabilities of the company on the statement Mr. English made out.”
Further along in his testimony he states: “Ledwidge said he would be willing to give me back the $2,000 and let me out. I didn’t say anything about the condition of the business. The statement here in evidence was not made to serve any purpose so far as my contract was concerned. It was simply taken off as a preliminary to find out how the books stood with respect to the condition of the company. I think we all thought it represented the condition of the company.”
Appellee testified substantially as follows: “He (appellant) agreed to take a sixty-day note from English of the English-Grant Lumber Company. I told him ‘if they can pay you in sixty days they can pay you in fifteen or ten days.’ He came back afterwards and had that note, and I said that if these statements that he had given 'me, the statements of the financial condition of the company and that he and English had checked np and gone over, were correct (he was secretary and knew all about the business) * * * I would endorse it. We both endorsed it, and then he got a contract from us that we would pay this, etc. In other words, if what had been given me were the facts in regard to the company I was to carry out the agreement that I made. ’ ’
Again Ledwidge testifies: “That is the transaction; he sold it to the English-Grant Lumber Company and took an English-Grant Lumber Company paper for it, and I endorsed that paper upon the condition that he said the company was in. He said there was plenty there to pay everybody out, and really it looked like it was on the point of liquidation. That is what I hoped to do with it.”
Again: “In order to get me to endorse the note Grant represented to me that the company was solvent and was in ample shape to pay all its debts and had plenty of assets to pay them with. It was his business to know the company’s financial condition.”
Again: “He (Grant) represented that there were sufficient assets of the English-Grant Lumber Company, consisting of notes and accounts, to more than pay all the liabilities of the company. He made a statement to me showing all the cash on hand, and that and the notes and accounts were sufficient to pay all of the debts of the company. I relied on the truth of his statements when I endorsed the note. I would not have done it otherwise. The statement was evidently not true.”
Continuing his testimony, he says: “At the time I signed the note it was understood between Grant and myself that the assets of the company, exclusive of the mills and the timber and lands, were sufficient to pay all of the debts of the corporation, and that I would execute this short time paper so it could be paid out of the assets of the company. When Grant told me that the state ment lie made contained all of the liabilities of the corporation, we owed for lumber something like $700, and owed the Peoples Savings Bank about $700. In other words, to make a long story short, his statement to me was not a correct statement of the condition of the company. I relied upon him for a correct statement. Upon investigation immediately afterward I found that he had omitted liabilities of the company in excess of $2,000. Mr. Grant was in active charge of the company. I had nothing whatever to do with the management of it. ’ ’
Appellee further testified that he told Grant as follows: “If they (the corporation) can settle with you in sixty days they can settle with you sooner. We will just make it ten days and grind this thing right straight through. I want to look at the accounts and see if they are like you boys say they are, and if we can let Grant out and pay him off we will do it. We went over and looked at the books, and they said they were in this condition. I said ‘I would like to get a statement to that effect. In the meantime make up your papers.’ The next day, or whenever it was, I signed the note and the agreement, with this understanding, that there was plenty of money to pay all the debts and leave them in the clear, and we would be like we started. This was the agreement I had with him. ’ ’
It will be seen from the above that the testimony of the appellee, Ledwidge, is clear and unequivocal to the effect that he executed the note and contract upon the representations of appellant and with the understanding between them that the assets .of the corporation were sufficient to pay all its debts.
The testimony of the appellant, on the other hand, to say the least of it, is confused and in places apparently contradictory. For instance, in his cross examination in his deposition, speaking of the financial statement, he says: “I understood it was made for thé purpose of having this trade go through.” But, in his testimony given before the court, he states: “The statement here in evidence was not made to serve any pur pose so far as my contract was concerned.” There are other apparent inconsistencies and contradictions in the testimony of appellant, but it could serve no useful purpose to point these out in detail.
We are of the opinion that the chancery court was warranted in finding that the note was endorsed and the contract executed by the appellee upon representations made by the appellant and upon an understanding with him to the effect that the assets of the corporation in excess of its liabilities were sufficient at that time to pay the note in controversy, and upon the representation made by the appellant that the statement furnished appellee reflected the true financial condition of the corporation at the time the statement was made. This finding of the chancellor was certainly not against the clear preponderance of the testimony.
True, appellant testified that Ledwidge was thoroughly familiar with the books of the company and its business, and had access to the books, but his own testimony and the testimony of the appellee shows that appellant was in charge of the books as secretary of the company and that he was in the active management of the affairs of the company. The testimony of the appellee shows that he was unwilling to sign the note and contract until the financial statement of the corporation had been furnished him, and the testimony of the appellant shows that the financial statement was made for the purpose of “having the trade go through.” Appellee testified that he relied upon appellant furnishing him a correct statement, and he relied on the truth of appellant’s statement concerning the financial condition; would not have endorsed the note without it.
This is not a case for the application of the doctrine of a reformation of written instruments. Therefore, what is said in McGuigan v. Gaines, 71 Ark. 614, and Cherry v. Brizzolara, 89 Ark. 309, as to the character of the proof necessary for the reformation of written instruments by parol evidence is not applicable here. This case, on the facts, is ruled by the principle announced in the recent cases of Hunt v. Davis, 98 Ark. 44, and Haldiman v. Taft, 102 Ark. 45. In the latter case the court, speaking of certain representations made in a trade concerning the worth of certain stock, said: “If he (the-seller) made that representation, and knew, or ought to have known, that the stock was not worth that much, he was guilty of making a false representation, which, if relied on by the other party, became the inducement for the trade. There is evidence that he was treasurer of the corporation, and had actual knowledge of its financial condition. But, even if he was without actual knowledge on the subject, he occupied a position which was tantamount to holding himself out as having such knowledge, and it is unimportant whether he did possess the knowledge or not. Under those circumstances, it was his duty to have informed himself before 'making any statement to a party with whom he dealt.”
Appellant claims that any representations he made to appellee concerning the financial condition of the corporation could not have misled the appellee, and that appellee had no right to rely upon same, for the reason that he had the same means of information that appellant had and the same access to the books, and knew as much about the financial condition as did appellant. But the evidence does not warrant this conclusion. While appellee could have looked at the books of the corporation, he did not have charge of the books, whereas appellant did have the custody of the books and papers and was in the active management of the affairs pertaining to the oversight of the books and keeping the same in proper condition. Appellee was not negligent in his failure to consult the books of the corporation to ascertain whether or not the financial statement was true, but he had the right, under the circumstances, to rely upon the representation of the appellant that the same was true.
Appellee, by his conduct with reference to the financial statement, notified the appellant that he was relying upon his furnishing a correct statement. While there was no legal fiduciary relation between appellant and appellee, still, under the circumstances, appellee had the right to rely upon the statement of appellant as to the financial condition of the corporation, because, according to appellee’s testimony, which is not disputed, he made inquiries of appellant and gave him to understand, in effect, that he was. going to rely upon the truth of the statement that appellant furnished.
Mr. Pomeroy says: “Not only where the vendor thus occupies a fiduciary position towards the purchaser, independently of the sale, but also when, in the very contract of sale itself, or in the negotiations preliminary to it, the purchaser expressly reposes a trust and confidence in the vendor, and when, from circumstances of that very transaction, or from the acts or relations of the parties in connection with it, such a trust and confidence reposed by the purchaser is necessarily implied in the contract of sale, it is the duty of the vendor to make a like disclosure, and his failure to do so is a fraudulent concealment.” 2 Pom. Eq. Jur., § 904, p. 1617.
The circumstances under which English and the appellant made the statement and furnished the same to the appellee for the purpose of having him rely on the same, and to influence him to endorse the note and execute the contract, were such as to advise appellant that appellee was relying upon appellant’s peculiar knowledge of the facts disclosed by the statement which appellant was furnishing “for the purpose of having the trade go through.” See Jarratt v. Langston, 99 Ark. 438.
Appellant contends that the appellee is not entitled to recover because the appellant made the statement believing the same to be true. There was testimony by both appellant and appellee to the effect that the appellant believed that the statement was correct and that there was no actual intent upon his part to mislead appellee. In other words, that there was no dishonest motive upon appellant’s part in making the representation contained in the statement, although same proved to be untrue. But, upon this point, Mr. Pomeroy states the doctrine as follows: “If a statement of fact, actually untrue, is made by a person who honestly believes it to be true, but under such circumstances that the duty of knowing the truth rests upon him, which, if fulfilled, would have prevented him from making the statement, such misrepresentation may be fraudulent in equity, and the person answerable as for fraud, forgetfulness, ignorance, mistake, can not avail to overcome the pre-existing duty of knowing and telling the truth. ’ ’ 2 Pom. Eq. Jur., § 888, p. 1584. See also Haldiman v. Taft, supra.
The decree is correct, and it is affirmed. | [
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McCulloch, C. J.
This is an action at law instituted by the Lewisville Light & Water Company, a co-partnership doing business under that name, composed of G-. W. Dobson and A. T. Ward, to recover from the defendant, M. D. Lester, an amount claimed to be due for electric lights furnished during several years prior to the institution of the action. •
The electric light plant in the town of Lewisville was originally owned by a corporation under the same name under which plaintiffs are now doing business, and it sold the plant and franchise to the paintiffs.
The defendant was a citizen of the town, and ten lights were installed in his residence. The customary price for furnishing lights in residences was a fiat rate of fifty cents per light, and ten lights were installed in defendant’s residence, making his monthly bill the sum of $5, according to the customary rates. Defendant claims, however, that the manager of the concern, while being operated as a corporation, made a special contract with him to furnish the ten lights for $3 per month, and that monthly bills were furnished for that amount* which he always paid, and that no notice of any change was ever given until about the time this suit was instituted.
This action is to recover the additional amount of $2 per month, the amount sued for aggregating the sum of $194.25.
Plaintiff’s testimony showed that the customary rate was fifty cents per light in residences; but defendant testified that one Miller, the manager of the plant, .and what he terms the “promoter” of the corporation, made him a special rate of $3 per month at the time the ten lights were installed in his house, and that he paid that amount every month upon bills presented to him, and that he had never been notified of any change in the rate.
The court submitted'the case to the jury upon the sole issue of fact as to whether or not such a contract existed with reference to the price of the lights furnished, and the jury returned a verdict in the defendant’s favor. We think that is the only issue in the case, and the verdict of the jury is conclusive as to the rights of the parties. The fact that plaintiffs, and its predecessor, in rendering monthly bills to’ defendant, only-specified six lights does not alter defendant’s liability according to the contract originally made with him by Miller. There is no evidence of collusion between defendant and Miller to cheat the latter’s principals out of the customary price of lights. No evidence that the contract was not entered into fairly and in good faith.
There is no evidence that the rates had ever been fixed by any ordinance of the town, and there is no statute making a special contract of this kind unlawful. If. the contract was entered into and its existence recognized by both parties by the payment and acceptance of the amount specified therein, then there is no right of action for the recovery of the difference between the customary rates and the rates stipulated in the special contract.
The plaintiffs undoubtedly had the right to terminate the contract and charge the defendant according to the customary rates, but they failed to do so, and, on the contrary, recognized the existence of the contract by furnishing bills for that amount and accepting the monthly payments.
The authority of Miller to make the special contract is challenged. But it was certainly within the apparent scope of his authority, for he was the manager, and had authority to fix rates. In any event, his act in fixing the rates was ratified by the acceptance of the specified amount from month to month.
It is contended that the court erred in refusing to postpone the trial when defendant filed an amendment to his answer. The record merely shows that when the amendment was filed, plaintiff’s attorney “asked the court for permission to continue the case for the term,” and that an exception was saved to the ruling of the court denying the request. No reason was, according to the recitals of the record, stated, and it can not be said that the court abused its discretion in refusing to postpone the trial until the next term.
No objection is pointed out to the instructions of the court, and the evidence is legally sufficient to support the judgment, so the same is affirmed. | [
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OPINION OF
THE COURT.
In this action of replevin, two questions are presented for the consideration of the court. . First, the sufficiency of the affidavit of the plaintiff; and second, the legality of the judgment rendered by the court. The affidavit made by the plaintiff in the court below, is manifestly defective and insufficient. It contains no averment that the plaintiff ever was possessed of the property, or that it was unlawfully taken from his possession and without his consent. These averments are required by the statute (Ter. Dig. 457), and the affidavit being thus fatally defective, the suit was properly dismissed by the court. Our statute provides, that if any plaintiff in replevin shall fail to prosecute his suit with effect, the judgment shall be, that he return the property taken. Ter. Dig. 458. Has the circuit court rendered such a judgment? Although the judgment is not in the technical language of the usual forms, yet we think it substantially corresponds, with approved precedents. The judgment is as follows: “Therefore, it is considered that the said plaintiff take nothing by the said writ, and that the said defendant have a return of the property so replevied as aforesaid.” The judgment rendered in the case is, in our opinion, substantially for a return of the property, and although not formally, is substantially correct Judgment affirmed. | [
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Per Curiam.
This is an action instituted before a justice of the peace to recover a sum of money, within the jurisdiction of that court, alleged to be due on account for the price of a lot of staves and cord-bolts. On appeal to the circuit .court, plaintiff recovered judgment for a portion of his demand, and the defendant appealed to this court.
The motion for new trial was overruled, and an order was made by the court granting defendant ninety days from that date within which to file his bill of exceptions. The bill of exceptions was signed by the judge within the time allowed, but was not filed with the clerk until after the expiration of that time.
Where time is allowed by the court, the bill of exceptions must not only be signed by the judge, but must be filed with the clerk and become a part of the record, before the expiration of the time allowed; otherwise it does not become a part of the record at all.
There is nothing before this court for review, as the exceptions were not properly preserved.
Judgment affirmed. | [
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Hart, J.
In the year 1898 Mrs. M. C. McCaskill, wife of J. M. McCaskill, died seized and possessed of lots seven and eight in block thirty in the town of Rison, Cleveland County, Arkansas, which was her homestead. She left surviving her, Elva E. McCaskill, now Elva E. McCullar, Hugh G. McCaskill and Mary B. McCaskill, minors, as her sole heirs at law. J. M. McCaskill, the father of said minors, was duly appointed as their guardian. ■ On the 17th day of December, 1904, said J. M. McCaskill as such guardian, applied to the-Cleveland Probate Court for an order to exchange said lots for certain other lots in said town of Rison, belonging to N. A. McKinney. On the same day the order was made, and said J. M. McCaskill as said guardian executed a deed to said lots to said McKinney as such guardian, and the exchange was made. The proceedings were approved by said probate court, and N. A. McKinney entered into possession of the lots so conveyed to him.
The present suit was brought by Elva E. McGullar, Hugh G. McCaskill and Mary B. McCaskill by her next friend, Hugh G. McCaskill, against said J. M. McCaskill and N. A. McKinney to cancel and set aside said deed.
The defendant J. M. McCaskill failed to answer, but made default. The defendant N. A. McKinney answered and admitted that the exchange was made .pursuant to the order of the probate court upon the application of the guardian of the plaintiffs herein; but averred that the exchange was made in good faith, and that said guardian received the full value of said lots, and used the same for the benefit of said minors.
The chancellor, after hearing the evidence introduced, found in favor of the plaintiffs, and a decree was accordingly entered, cancelling the deed of said guardian to said McKinney, and that the possession of said premises be restored to said plaintiffs. The defendant McKinney has duly prosecuted an appeal to this court.
In the case of Meyer v. Rousseau, 47 Ark. 460, the court held that the probate court has no power to order the lands of a minor to be exchanged for other lands. The decision has never been overruled, and settles the present case. That case decided that an exchange of a minor’s lands by a guardian under an order of the probate court was not a sale of them and said: “Under no state of facts is the probate court authorized by the statute, so far as we have been able to discover, to order the lands of a minor to be exchanged for other lands. The order of the Lincoln Probate Court directing an exchange of appellee’s lands for other lands is void.”
There is no evidence that the plaintiffs were ever in possession of the exchanged lands, or that they received any benefits therefrom; consequently, as was said in the case of Meyer v. Rousseau, supra, they are not estopped from disputing the validity of the exchange.
It is true that $150 was paid to the guardian of the plaintiff in the exchange, but this was paid to him before the order of court authorizing the exchange was made, and personal security therefor was required and given. Besides, the’ guardian says that only a small part of it was used for the benefit of the minors, and the amount so used is not shown.
•Therefore the decree will be affirmed. | [
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Battle, J.
On the 13th day of June, 1904, the east' half of section 29 in township 6 north, and in range 2 east, in St. Francis County, in this State, was sold for taxes and purchased by W. J. Lanier, who received a certificate of purchase for the ■same. On the 12th day of June, 1906, in consideration of the sum of one hundred dollars paid to him by L. A. Fitzpatrick, Lanier assigned the certificate to Fitzpatrick, who borrowed the one hundred dollars from the Bank of Forrest City, and gave it a check for that amount on the Fitzpatrick Drug Company, of Helena, Arkansas, with the certificate "of purchase attached as security. The check was protested for nonpayment. Fitzpatrick failing to pay it, the bank or its cashier, Eugene Williams, sold the certificate, on the 28th of June, 1906, at private sale, without notice, to the Jácks Real Estate Company for about $130.
Apprehensive that Eugene Williams, cashier of the ¡bank, might assign it to an innocent purchaser, and that T. C. Merwin, county clerk of St. Francis County, might convey the land to the assignee, and before he learned that the certificate was sold to Jacks Real Estate Company, Fitzpatrick brought suit against the bank, Williams and Merwin in the St. Francis Chancery Court, and asked that a temporary restraining order, restraining Williams from assigning the certificate, and Merwin, county clerk, from executing a deed to the land therein described, be issued, and the chancellor granted it.
Afterwards on the 28th day of January, 1908, Jacks Real Estate Company was made a defendant, and the prayer of the complaint was amended, asking that the Jacks Real Estate Company be required to deliver the certificate of purchase to plaintiff upon the payment of the amount of money that was due thereon to the Bank of Forrest City or to Eugene Williams when it or he transferred and sold it, together with the interest that has accrued thereon.
The Bank of Forrest City and Eugene Williams answered, and Jacks Real Estate Company answered on the 18th day of June, 1908, and among other things said that “it is the owner of the land described in the complaint, and that the tax certificate described in the complaint was purchased by E. C. Hornor from the Bank of Forrest City and Eugene Williams for and on its behalf and for the purpose of protecting its title to the land; and it asked that its purchase of the certificate be treated as a redemption.
Upon hearing the court dismissed the complaint for want of equity, and the plaintiff appealed.
Section 7093 of Kirby’s Digest in part provides: “The collector shall make out and deliver to the purchaser of any land, or town or city lot, or parts thereof, sold for delinquent taxes as aforesaid, a certificate of purchase. * * * Such certificate shall be assignable in law, and an assignment shall vest in the assignee, or his legal representative, all the right, title and estate of the original purchaser.” Under this statute Fitzpatrick acquired a title to the certificate in question by the assignment. The Bank of Forrest City or Eugene Williams acquired no title to it, but only the right to hold it as security for the payment of a debt, and Fitzpatrick did not forfeit his-title or interest in the same until it was foreclosed. In the absence of a stipulation of the parties to the contrary, that could hot be done without a public sale after due notice. Sharpe v. National Bank, 87 Ala. 644; Carson v. Iowa City Gas Light Co., 80 Iowa 638; Strong v. National Mechanics’ Banking Association, 45 N. Y. 718; Jones on Pledges and Collateral Securities (2 ed.), § § 602, 603; 22 Am, & Eng. Enc. of Law, 890; 31 Cyc. 878.
The Jacks Real Estate Company acquired no right to the certificate, the transfer to it being without right and it having purchased with notice of the rights of Fitzpatrick to the same. The time for redeeming the lands described in the certificate having expired at the time it purchased, it acquired none by redemption.
The decree of the chancery court is therefore reversed, and the cause is remanded with- directions to the court to compel the Jacks Real Estate Company to surrender to Fitzpatrick the possession of the certificate of purchase upon payment of the amount of money that was due thereon to the Bank of For rest City or to Eugene Williams when it or he transferred and sold the' same, together with the interest that has accrued thereon, within a reasonable time to be specified by the court. | [
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Frauenthal, J.
This was an action for the recovery of damages for the breach of an alleged contract of sale of a car of potatoes. The appellants were merchants, located at St. Paul, Minn., and were engaged in the business of 'selling goods by the wholesale. The appellee was a corporation doing business at Newport, Ark. The appellee alleged that the appellants had contracted to deliver to it at Marianna, Ark., a car of potatoes at an agreed price during the first half of February, 1908, and that they hack wholly failed to do so; and it sought to recover from appellants the damages which it had sustained by reason of said breach of said contract. The appellants denied that they had entered into any contract for the sale of said potatoes. The negotiations leading up to the alleged consummation of said contract were conducted by letters and telegrams. On December 23, 1908, the appellee wrote to appellants from Newport, Ark., as follows:
“Quote us not later than Saturday, December 26, prices, Triumphs, Early Rose, Burbank and Peerless seed potatoes for February shipment.”
Appellants wired on the 25th:
“Triumphs dollar fifteen, Peerless, Rose ninety, Burbank eighty seven bushel, sacked, delivered.”
Appellants also wrote appellee on the 26th:
“On receipt of your letter we at once wired you our price seed potatoes. It seems our crop, especially Triumphs, short and will no doubt be high.”
Appellee on the 28th wired:
“Accept one car yours twenty-fifth. Specifications follow by mail.”
Appellee wrote appellant on the 29th:
“This will confirm our wire order of the 28th, for one car seed potatoes for Marianna, Arkansas, i shipment, same to be made in first half of February, specific shipping date to follow. Of course, you understand that these are to be genuine Northern potatoes, and we want them put up in 150 pound even weight sacks. Ship as follows:
210 bags Triumphs, at........................$1.15
35 bags Early Rose, at........................90
4 bags Burbanks, at..........................87
“Ship direct, sending all papers to us here at Newport. Draft through the Arkansas Bank & Trust Co.”
Appellants answered on the 31st:
“We have your mail order for car seed potatoes to be shipped first half of February to Marianna, Ark. We find the freight rate to Marianna is 5c cwt., or 3c bushel higher than to Newport. We suppose you had figured on the advance freight. On all future orders we damand $100 on car on contract. Please- mail us your check, and we will return you your signed contract.”
On December 29, appellants had written to appellee in regard to the telegram of December 28,, as follows:
“We have your night wire, order car potatoes. You understand that our quotation was for reasonably prompt shipment. Hope to receive full specifications in a few days, so we can make the shipment.”
On January 2, 1909, appellee wrote to appellants as follows: “Yours of the 29th at hand, and you are evidently mistaken as to the time of shipment of car as purchased of you by wire December 28. If you will refer to our letter of December 23, you will note that we ask plainly for price for February shipment, and you say nothing about when shipment was to 'be made, and naturally took your price for answer to our letter as referred to above. Hoping that you will, see this as we do, and wishing you a prosperous year, we remain, very respectfully, etc.” Appellants answered on the 4th:
“Answering yours of the 2d, we will waive the time of shipment, providing you send us your check for $100 on con tract. We will mail you contract on receipt of your check, and ship the potatoes first of February. Let us hear from you promptly.”
On January 6, 1909, appellee then wrote to appellant as follows:
“Inclosed.find our check for $100 to apply on contract for Marianna. Your competitors are offering us same price delivered Marianna, as Newport, as that place takes Little Rock rate. We will expect you to do as much for us as your competitors.”
The above check was deposited by appellants in bank at St. Paul on February 9, and was paid by the bank at Newport, upon which it was drawn, on January 14, 1909; but the appellants did not make any reply to the letter of January 6 immediately upon its receipt. On January 11, 1909, the appellee wired to appellants, asking them to quote prices on another shipment of potatoes to be delivered at Diaz, Ark., and on the same day appellants replied by wire, giving quotations and also in said telegram stated: “Marianna rate as written must have additional freight.” The appellee made no reply to this portion of the telegram relating to the Marianna shipment, but on January 21, 1909, wrote to appellants as follows: “Inclosed find check for $300 to apply $100 each on the three cars as follows: Newport, Newark and Swifton. Please send us. signed contract for these as well as for the Marianna car as sent you some time' ago.”
On January 23, 1909, appellants wrote to appellee as follows : “We have your checks this morning for all the cars but Marianna, as there was some misunderstanding regarding this order. We herein return you that order, which we have cancelled.”
On January 25, 1909, appellee wrote to appellant that it had in its letter of January 6 sent check for $100 on the Marianna shipment, and that the contract for sale thereof was thereby consummated. On January 27, 1909, the appellants wrote to appellee, denying that any contract had been made for the Marianna shipment, and returned to appellee check for $100. This check the appellee returned to appellants on January 29, claiming that the contract for the purchase of the Marianna car of potatoes had been fully consummated.
The appellants introduced testimony tending to prove that when they received the letter of January 6, 1909, with inclosure of check, they deposited the check in bank and held its proceeds pending the further negotiations for arriving at an agreement relative to the price of the potatoes ordered for Marianna shipment, and .that when they learned that no agreement could be arrived at they at once returned the amount to appellee, and that they did not accept the suggested offer or counter-proposition contained in that letter.
At the request of the appellee the court amongst other instructions gave the following to the jury: '
“3. If you find that, upon plaintiff ordering a car of potatoes on Newport quotations delivered at Marianna, defendant notified plaintiff that delivery at Marianna would be at' 3 higher rate, and would require a deposit of $100 for future delivery, and that plaintiff remitted the amount, but asked a modification to the Newport rate, and defendants accepted and used the check so sent, without further notice to plaintiff, it would be an acceptance of the order for the carload of potatoes unless directly declined by defendants, and would be a contract.”
The jury returned a verdict in favor of appellee.
The sole question involved in this case was whether or not there was a contract entered into between the parties by which the appellants sold to appellee a car of potatoes to be delivered at Marianna, Ark., at the prices quoted by them in their telegram of December 25, 1908. This is, we think, under the testimony adduced in the case, a mixed question of law and of fact. It is well settled that, before there can be a contract formed and entered into, there must be a meeting of the minds of both parties to the terms of the agreement. There can be no binding contract of sale until the parties have agreed to the same proposition which is the subject of the contract. There must be an offer to sell upon the one hand and an acceptance of the same offer before it can be said that the contract of sale has been consummated. Mere negotiations for entering into the contract will not suffice, but the proposition to which the negotiations lead for the agreement must be'finally assented to by both parties. So, in determining whether or not a contract of sale has been made, the material inquiry is: did the minds of the parties meet and did they mutually assent to the same thing? Priest v. Hodges, 90 Ark. 131; Tiedeman on Sales, § 33.
A binding contract of sale may be entered into by letters and telegrams; and when an offer is made either by letter or telegram, and such offer is accepted, the contract is complete and binding. Unless the parties have expressly stipulated otherwise, it is not necessary that the offer or the acceptance should be in any particular form. 1 Mechem on Sales, § 241; Rankin v. Mitchem, 141 N. C. 277; Kempner v. Cohn, 47 Ark. 519.
If the contract is actually entered into and made, whether by messages, correspondence or by word of mouth, the agreement becomes at once effective, although it was expected that the terms would afterwards be embodied in a written instrument and signed. The mere reference to a future contract in writing would not negative a present contract if the terms thereof were actually assented to by both parties. The written draft of the contract would only be a convenient record of the agreement and the evidence thereof, but it would only constitute evidence of the agreement, and its absence would not affect the binding force of the contract that was closed. Therefore, if an unconditional offer is made, and that offer accepted, this will constitute an obligatory contract, although the parties also understand that a written contract embodying the terms should be drawn and executed. Bell v. Offutt, 10 Bush 632; Green v. Cole, 103 Mo. 70; Sanders v. Pottlitzer Bros. Fruit Co., 144 N. Y. 209; Cheney v. Eastern Trans. Line, 59 Md. 557. So, in the case at bar, the appellants by telegram made to appellee a definite proposition for the sale of a car of potatoes, and when by wire the appellee accepted that offer the contract became complete, although it was also xtnderstood that the terms of the contract were to be put into a formal writing and signed. But the offer made by appellants in their telegram of December 25 was to deliver the potatoes at Newport, Ark., the place from which they received the inquiry from appellee. In its letter of January 29 the appellee in'effect desired to change the contract by requesting that the potatoes be delivered at Marianna, Ark. To this the appellants did not assent unless they did so upon the receipt of the letter from appellee dated January 6, 1909. The question then is, not whether the terms of the contract were to be embodied in a formal writing and executed, but whether or not the parties actually assented to the same terms of the contract and the same proposition. By this letter of January 6, 1909, the appellee in effect made to the appellants a counter proposition, in which they offered to take the potatoes if they were delivered at Marianna at the same prices quoted in the telegram of December 25 for delivery at Newport.
Before there could be a contract obligatory upon appellants, they must have assented to the offer thus made by appellee. Under the testimony adduced in this case this was a question of fact for the determination of the jury, and not one of law. The mere fact that the appellants received the check which was sent to be applied upon the offer made in the letter of January 6 would not be conclusive proof of such acceptance of the offer by appellants. If the check was sent upon the condition that, if appellants accepted it, that should be an acceptance of the counter proposal for the potatoes, and the appellants, so understanding it, accepted the check, then the counter offer made by appellee in the letter would be accepted by appellants. Barham v. Bank of Delight, 94 Ark. 158. But whether or not the appellants accepted the check with such understanding was a question to be determined by the jury. The mere retention of the check was only evidence of such acceptance, and not conclusive proof thereof. If the appellants retained the check for an unreasonable time without notifying appellee that they only retained it for the purpose of waiting negotiations looking to the agreement of the parties to the terms of the contract, or failed to return it within a reasonable time, then the jury might infer from such action and conduct on the part of appellants that they actually did accept the terms of the offer contained in the letter of January 6 for the purchase of the potatoes. We think that under the testimony it was a question of fact for the jury to determine whether or not the appellants accepted the check upon the terms and in assent to the offer set out in appellee’s letter of January 6, or whether they only held it awaiting negotiations; and that it was also a question of fact, for the jury to determine whether under the circumstances of this case they retained it for an unreasonable time. But by the above instruction number 3 the court in effect instructed the jury that the retention and collection of the check by appéllants was as a matter of law an acceptance of the offer of contract made in the letter of January 6 and an assent to its terms by appellants.
We are therefore of the opinion that the court erred in giving the above instruction number 3 at the request of appellee, and that it should have been modified so as to conform with the principles set out herein.
We have examined the other instructions given at appellee’s request and those which were requested by appellants and refused, and we find no prejudicial error in .the rulings of the court thereon, when said above instruction number 3 is modified as above indicated.
For the error in giving the above instruction number 3, the judgment is reversed, and the cause remanded for a new trial. | [
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Frauenthal, J.
This was an action to recover the value of a team of mules and a wagon which fell from defendant’s bridge, and were lost. It was alleged in the complaint that the loss was due to the defendant’s negligence in failing “to have a safe and sufficient guard rail properly braced and strong enough to insure safe passage over said bridge, and to prevent frightened teams from breaking through into said river.” The defendant owned and operated a bridge .across the Arkansas River near the town of Dardanelle, and charged and collected fare' for the crossing of persons and property over it. The plaintiff had driven his mules and loaded wagon upon the bridge, and was crossing over same when the mules, either from fright or other cause, backed the wagon against the railing of the bridge, which broke and gave way, and the mules and wagon were precipitated into the river; the mules were drowned and the wagon lost.
The testimony on the part of the plaintiff tended to prove that the bridge was built of boats, and was what is known as a “pontoon” bridge. Along its sides the defendant had built a railing or barrier. This railing was composed of upright posts upon which was fastened a plank or streamer. The posts were made of pine, and were fastened to the 'bottom of the boats with bolts. The testimony on behalf of the plaintiff tended to prove that the posts were not built of strong wood', that the timbers in the railing were light and frail, and that the posts and railing were not braced. That because the posts were not braced the railing was not substantial and not strong enough to withstand the weight of a wagon that might ordinárily be expected to be pressed against it. And the testimony tended further to prove that if the railing had been built of heavier and sounder timber, and the posts properly braced, it would have withstood such pressure. And we are of opinion that there was some evidence adduced in the case which was sufficient to warrant the jury in finding that the railings were not constructed and maintained in such a proper and substantial manner as was necessary to secure the safety of teams that ordinarily crossed the bridge, and which might press against the railings with such force that might be, in the exercise of due care and caution, expected and foreseen; that the loss was due to the insecure and unsubstantial manner in which the railing was constructed and maintained; and that the plañir tiff was at the time in the exercise of due care.
At the request of the plaintiff the court gave the following instruction:
“1. If you find that the defendant owned and operated a bridge across the Arkansas River, for the transportation of freight and passengers for toll, it was bound to use reasonable skill and diligence in providing against the ordinary dangers of travel, and to provide and maintain a reasonably safe bridge ; and if guard rails and banisters be reasonably necessary for that purpose and- practicable, it was bound to construct and maintain them in the places needed and of sufficient strength to be reasonably safe; and if you find that the defendant failed to so construct and maintain or keep in repair the said bridge by reason of which the injury complained of occurred you will find for the plaintiff.”
At the request of the defendant the court gave among other instructions the following:
“3. Defendant is not an insurer of the safety of property carried over its bridge; nor is it required to keep guard rails of such strength that they will not give way or break under any circumstances, or resist extraordinary pressure. It is only required to use ordinary care to keep its guard rails in a reasonably safe condition, which means a condition of safety under ordinary circumstances.”
“5. Before you would be justified in finding for the plaintiff, you would have to find from the evidence that at the time of the accident the bridge, by reason of the defective guard rail, was insufficient to furnish protection to teams under such conditions and circumstances as were likely to occur on said bridge; and you would have to find further that such defective condition existed and was caused by defendant’s failure to use ordinary care.”
“6. Before you would be justified in finding for the plaintiff, on account of the defective guard rail as alleged in the complaint, the proof would have to show that, in order to furnish protection to wagons and teams crossing said bridge under the usual and ordinary circumstances, it was necessary to have guard rails of greater strength and sufficiency than the ones shown to have given away; and further that the failure to have rails of greater strength was caused by the negligent failure of defendant to use ordinary care.”
The jury returned a verdict in favor of the plaintiff, and the defendant has appealed to this court.
It is contended by counsel for. defendant that -the evidence adduced in the trial of this case was not sufficient to impose a liability upon it, and was not sufficient to sustain the verdict of the jury. The determination of that question depends upon the duty which the defendant owed to the plaintiff as one of the traveling public over its bridge and the manner in which defendant has performed that duty. The defendant was the proprietor of a bridge, and made a charge against the public for crossing same. It thereby became its duty to exercise reasonable and ordinary care and prudence in the construction and maintenance of its bridge for the safety and protection of those using it and to make reasonable provisions to prevent injuries from causes which are likely to arise in the ordinary use of the bridge.
A toll bridge should be so constructed that it shall be safe for travel, and the degree of the strength of the structure must be determined by the use which -is fairly to be ex pected to be made of it. It should be constructed in a man-, ner strong enough to sustain those weights and to protect from injury that character of property which may fairly be expected to cross over it. While -not an' insurer of the person or property of its customer, the proprietor of a toll bridge is bound to exercise care to see that it is reasonably safe and secure for the purpose for which it was erected and is used. The liability of the proprietor of the bridge is founded upon negligence; and his negligence arises from the failure to exercise the necessary care in seeing that the bridge is safely constructed and maintained. If guard rails are reasonably necessary for the safety of travelers and their property in crossing the bridge, then the owner would be liable for an injury which was caused by a failure to construct and maintain such railing or barrier. In 2 Dillon on Municipal Corporations, § 1005, it is said: “Where a rail or barrier is reasonably necessary for the security of travelers on the road which from its nature would otherwise be unsafe and the erection would have prevented the injury, it is actionable negligence not to construct and maintain such guard or barrier.” Little Rock Traction & Elec. Co. v. Dunlap, 68 Ark. 291; 5 Cyc. 1101; Eads v. Marshall, 29 S. W. 170.
The guard rail should be effective for the purpose for which it is erected,' and should therefore be constructed and maintained in such a reasonably strong and substantial manner as to withstand the ordinary weights and forces that may be likely expected to be pressed against it. This is necessary in order to put the railing in a safe condition for the travel in the ordinary manner over such bridge. Whether or not the railing is in such condition is a question to be determined by the jury under the peculiar circumstances of each case. 2 Dillon on Municipal Corporations, § 1019; Wharton on Negligence (2 ed.), § 103.
In the case of Walrod v. Webster Co., 47 L. R. A. 480, it appears that the horses became frightened and pressed up against the rail of the bridge, which gave way and the horses fell from the bridge. In that case it was held that there was a liability to the owner of the horses in event the accident would not have happened if the railing had been reasonably substantial; and that this was a question for the jury to determine.
In 4 Am. & Eng. Ene. Eaw, 942, it is said: “It is the duty of a bridge proprietor to provide and keep in repair proper railings, so. far as they are necessary to secure the safety of travelers, and a failure of this duty affords ground of action to one sustaining injury in consequence.” See also St. Louis, I. M. & S. Ry. Co. v. Aven, 61 Ark. 149; Tift v. Towns, 53 Ga. 47; Rosedale v. Golding, 55 Kan. 167; Townsend v. Susquehannah Turnpike Road, 6 Johns. 90; Palmer v. Andover, 2 Cush. 600; Gage v. Railroad Co., 105 Mich. 335.
In the case at bar we think that the jury were warranted in finding that railings upon the bridge were reasonably necessary for the safety of travelers and their .property, and there was some evidence tending to prove that the railings that were provided were not reasonably substantial enough and suitable for the safety of the persons and their property that ordinarily might be expected to cross the bridge' and to sustain the weights that ordinarily might be expected to press against them. We are of opinion, therefore, that there was sufficient evidence to sustain the verdict of the jury, and that the court did not err in giving the instruction number 1 at the request of the plaintiff.
The defendant requested the court to instruct the jury in effect that if the guard rail was, not of sufficient strength to meet ordinary requirements at the time of the accident, but that such weakness arose after the rail was placed on the bridge, then before the plaintiff could recover it was necessary to prove that defendant knew of the defect or could have known by the use of ordinary care. The court refused to give the instruction; and in this ruling we do not think that the court committed a prejudicial error. By instruction number 2 given at the request of the defendant the court instructed the jury that, before the plaintiff could recover, he must prove that the defendant had been negligent in the manner alleged in the complaint, and that the act of negligence therein set out caused the injury. The act of negligence set out in the complaint was that the defendant “failed to have a safe and sufficient guard rail properly braced and strong enough to insure safe passage over said bridge;” that is to say, that the rail was not constructed of strong enough timbers and was not properly braced. This was the act of negligence that the plaintiff was required to prove before he could recover. The act of negligence therefore consisted in a failure to properly construct the guard rail in the beginning; and the liability of the defendant was not made dependent upon the weakness of the rail which was caused by some act or agency that occurred after its construction. The instruction requested was therefore without the issue presented by the complaint and pleadings and was abstract. The other instructions given by the court confined the right of the plaintiff to recover to his establishing by proof the act of negligence set forth in the complaint; and in effect covered this instruction requested by defendant. St. Louis, I. M. & S. Ry. Co. v. Freeman, 89 Ark. 327.
It is urged that the court erred in permitting the witness Edgar Shinn to testify that the guard rail was constructed in an improper manner, and that it was not substantial and safe. This contention is made upon the ground that this was but the opinion of. the witness. But we think that this witness possessed an experience and knowledge relative to the subject-matter to qualify him as a skilled witness. The conclusion and judgment of the witness related to a subject-matter not universally understood. The witness was giving evidence in regard to a matter that required the aid of an experience outside of that possessed by the jury to fully understand it. His testimony was therefore admissible. “A witness’ opinion is admissible as evidence, not only where scientific knowledge is required to comprehend the matter testified about, but also where experience and observation in the special calling of the witness give him knowledge of the subject in question beyond that of persons of common intelligence.” Railway Company v. Shoecraft, 56 Ark. 465; T. & C. Ins. Co. v. Fouke, 94 Ark. 358; Lawson on Expert Ev., 73; 17 Cyc. 36; Moore v. Kenockee, 4 L. R. A. 555; Porter v. Pequonnac Mfg. Co., 17 Conn. 249.
Complaint is also made of certain remarks of counsel for the plaintiff in his argument to the jury. Some of these remarks were mere expressions of opinion, and some were instigated by and in retort to remarks made by opposing counsel. Id some of the remarks criticism was made of an opposing witness. The counsel said that the career of this witness was wrapped up in this bridge, and he had to sustain it by' his; testimony. We think that counsel have the right to refer to the interest which opposing witnesses have in the result of the trial, and to comment upon such interest if the testimony of such witnesses is in conflict with other testimony or established facts in the case. We have carefully examined all the remarks complained of, and we are of the opinion that, while some of them were improper, none of them was of such a prejudicial nature as to call for a reversal. Kansas City So. Ry. Co. v. Murphy, 74 Ark. 256; Reese v. State, 76 Ark. 39; Byrd v. State, 76 Ark. 276; Choctaw, O. & G. Rd. Co. v. Doughty, 77 Ark. 1; St. Louis, I. M. & S. Ry. Co. v. Raines, 90 Ark. 398.
We have examined into the other errors which counsel for defendant urge were committed in the trial of this case. We do not deem it useful to set them out. We do not think that any of these alleged errors was so prejudicial as to de-' prive the defendant of a fair and impartial trial upon the issues involved in the case.
The judgment is affirmed. | [
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McCulloch, C. J.
The controlling question to be determined on this appeal is whether the exception in the seven-years statute of limitations in favor of an infant expires in the case of a female infant three years after she attains the age of 18 years, or three years after she becomes 21 years of age. This statute relates to actions to recover land held adversely by another, and the exception in favor of infants and others under disability reads as follows: “Provided, if any person or persons that are or shall be entitled to commence and prosecute such suit or action in law or equity be -or shall be at the time said right or title first accrued, come or fallen within the age of twenty-one years, femme covert or non compos mentis, that such person or persons, his, her or their heirs, shall and may, notwithstanding said seven years may have expired, bring his or her suit or action, so as such infant, femme covert or non compos mentis, his, her or their heirs, shall bring the same within three years next after full age, discoverture or coming of sound mind.” Kirby’s Digest, § 5056.
This statute was .enacted in its present form in 1851, and at tnat time all persons under the age of 21 years, both male and female, were declared by statute to be minors. An act of the General Assembly, approved April 22, 1873, provides that “males of the age of twenty-one years, and females of the age of eighteen years, shall be considered of full age for all purposes, and, until those ages are attained, they shall be considered minors.” (Kirby’s Digest, § 3756). That statute was entitled “An act defining the powers and regulating the duties of guardians, curators and wards,” and it was a comprehensive statute covering the whole scope of guardianship of minors and the control of their estates.
It is insisted that the case of Rankin v. Schofield, 81 Ark. 440, is decisive of the question, but we, do not think that case reaches to it at all. There the court construed a statute which gives an infant the right to show cause against a judgment “within twelve months after arriving at the age of twenty-one years.” (Kirby’s Digest, § 6248). Judge Battle, in delivering the opinion of the court, said: “Section 6248 is a special or particular statute, providing a remedy in particular cases, and it is not repealed or modified by any general affirmative statute, unless it contains negative words or is invincibly repugnant thereto.”
The court held in Jones v. Pond & Decker Mfg. Co., 79 Ark. 194, that under the same statute a female who was 18 years of age when judgment was rendered against her had no right to show cause thereafter, and we do not understand that the. rule in that case was overruled by the later case of Rankin v. Schofield. Two of the judges concurred in both those opinions, and there was no intimation of an intention to overrule the first-named case.
However, we do not think the decision in either of those cases is decisive of the question presented now. Other decisions of this court do shed considerable light on this question, and lead clearly to the conclusion that the suit of a female infant must be brought within three years after she arrives at 18 years of age. The same section of the statute contains an exemption in favor of married women, and provides that they may bring an action in three years after discoverture. This court in several cases has held that the act of 1873° empowering married women to sue alone and in their own names, on account of. their separate property, did not repeal by implication the saving clause - in their favor in the statute of limitations. Mr. Justice Smith, delivering the opinion of the court in the first of those cases, said: “The wording of our statute. limiting the time for the bringing of the action for the recovery of real property is peculiar. It gives the married woman three years after discoverture; that is, after the release from the bonds of matrimony by the death of the husr band, or by divorce. If the language had been ‘three years after the removal of her disability/ we might very well hold that her disability could be removed by an act of the Legislature as well as by the husband’s death.” Hershy v. Latham, 42 Ark. 305.
The limitation statute'of December 14, 1844 (which had no application to the seven-year statute of limitation enacted in 1851), provided that “if any person entitled to bring any action, in this or any other act of limitations now in force specified, shall, at the time of the accrual of the cause of action, be under twenty-one years of age, or insane, or a married woman, or imprisoned beyond the limits of the State, such person shall be at liberty to bring such action within the time now specified by law, or in this act for bringing such action, after such disability miy be removed.” Kirby’s Digest, 5075. •This court held that the married women’s enabling act of 1873 (Kirby’s Digest, § § 5212-20) by implication repealed the exemptions in favor of married women contained in the above-quoted limitation statute of 1844. Mr. Justice Smith again delivered the opinion of the court, and in distinguishing the two cases said: “Hershy v. Latham, 42 Ark/305, stands on the peculiar language of the act of 1851, limiting actions for the recovery of lands. That act gives a married woman three years within which to sue after she becomes discovert, not after removal of her disability.” Garland County v. Gaines, 47 Ark. 558.
Other decisions follow this to the same effect. The distinction made by the court in those two lines of cases is controlling in the present case, and distinguishes it from the case of Rankin v. Schofield, supra. There the peculiar language of the statute construed was that the infa'nt, “within twelve months after arriving at the age of twenty-one years, may show cause against such order or judgment.” The statute now under consideration provides that the infant may bring such action within three years next after full age. The later statute of 1873 provides that “females of the age of eighteen years shall be considered of full age for all purposes.” Kirby’s Digest', • § 3756. We perceive no reason why this is not applicable, and we think it modifies the statute of limitation so as to 'bar the action of a female to recover land in three years next after arriving at the full age fixed by the later statute.
' It is urged that the purpose of the lawmakers in passing the act of 1873 was to encourage early marriages by enabling females to contract marriage at an earlier age than twenty-one years without the consent of parents or guardians. That may have been a reason that appealed to the lawmakers, but there is nothing to show that this was the sole purpose of the act. The statute is broad enough to completely emancipate females at the age of 18 years.
The. decree of the chancellor is therefore affirmed. | [
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Wood, J.,
(after stating the facts). Instruction number 3 given at the request of appellees did not give the jury the correct guide for determining testamentary capacity. It made actual knowledge, rather than capacity to know, the test. There is a wide difference between the two, and one necessary to be observed in order to correctly declare the law where testamentary capacity is the issue. A testator might not have “full knowledge of the property he possessed and its extent,” and yet, if he has the mental capacity to know about it, his will in the absence of fraud would nevertheless be valid. One might not know the natural objects of his bounty and their relation to him, and yet, if he had the capacity to know or to be informed about them and to comprehend his relation to them when so informed, his will would not be invalid because he did not have actual knowledge or “a reasonable perception and understanding of the persons he desired to be the recipients of his bounty.” We endeavored to make clear the distinction of which we are speaking in the-recent case of Taylor v. McClintock, 87 Ark. 273. In that case we had under consideration insane delusion as an alleged ground of incapacity. Here the alleged ground is senile dementia, or general insanity from that cause. But, as we said in Taylor v. McClintock, supra: “The test of testamentary capacity is necessarily the same, whether the insanity be attributable to dementia or insane delusion — paranoia.”
In the above case we approved an instruction which prescribed the following as a test of testamentary capacity: “By soundness of mind in this connection is meant the capacity of the testator to comprehend the nature of the transactions in which he is engaged at the time; to recollect the property to be disposed of, and the persons who would naturally be supposed to have claims upon him, their deserts and relation to him; and to comprehend the manner in which the instrument would distribute the property among the objects of his bounty; if one who, at the very time he undertakes to make a will, is possessed of sufficient intelligence and memory to fairly and rationally know and comprehend the effect of what he is doing, the nature and condition of his property, who are or would be natural objects of his bounty, and his relations to them, the manner in which he wishes to distribute his estate among or withhold it from them, and the scope and bearing of the will he is making, * * * he has capacity to make a will.”
The Supreme Court of Connecticut in Havens v. Mason, 78 Conn. 410, 3 L. R. A. (N. S.) 172, passed on an instruction similar to the above except that it had also the following: “It is for the jury to say whether or not at the time of the execution of the will Mrs. Stevens knew that she was making a will, knew what property she possessed, and knew the natural objects of her bounty; and if you find that these essentials she knew and understood at the time of the execution of this will, then the will should be sustained.”
The court approved the instruction as sanctioned by us above, but condemned as error and reversed the cause on account of the added language last above quoted. The court said: “The first of these sentences states a sound legal proposition. But, while one possessing the intelligence and memory which it describes has, as matter of law, sufficient testamentary capacity, it does not follow that one without actual knowledge of all the various matters specified may not have it also. Persons of large means rarely know precisely what property they own, or even the nature and present condition of every considerable item of it.”
“If by the class described as those who were or should be the natural objects of her bounty was meant her heirs at law, as seems probable by the reference to their relations to her, a test of capacity was imposed which was too severe.. She had fourteen nephews and nieces living, who were her next of kin. She might have had sufficient testamentary capacity, without knowing whether all were alive, or whether any other who might have died previously had left issue that then represented them.” See also note in 3 L,. R. A. (N. S.) to the above case.
It will be noted that in the instruction approved by this court in Taylor v. McClintock, supra, and other cases there cited, the test is capacity to know, and not actual knowledge, whereas the instruction under consideration in the instant case makes actual knowledge, and not capacity to know, the test. To be sure, if one knows and understands what he is doing when he executes his will, and can retain in his memory, without prompting, the nature and extent of his property, etc., then -he has the testamentary capacity. But one may not actually know and understand, and yet have the capacity to do so. Therefore instruction number four given at the instance of appellants does not cure the error of instruction number three given at appellee’s request. Nor is this error cured by other instructions in the case. The error of instruction number three is not one of mere verbiage that could and should have been corrected by specific request of appellants. The instruction is an erroneous statement of a fundamental rule of the law applicable to the issue being tried and essential to its correct determination. The error is one of substance, and not •of mere form. A general objection is sufficient.
Other assignments of error are argued in the briefs, and have been considered, but the above is the only prejudicial error we find in the record. For this the judgment is reversed, and the cause is remanded for new trial. | [
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Battle, J.
P. J. Delaney and J. B. Johnson entered into a written contract of lease, which is in part as follows: “This agreement, between P. J. Delaney and J. B. Johnson, as lessee, entered into at Hot Springs, Arkansas, this 15th day of September, 1908, witnesseth:
“That said lessor hereby leases and demises to said lessee the following described house and premises, namely, a certain two-story frame building house, known as the Marion Hotel, situated on Whittington Avenue and on lot 7, in block 132, of the city of Hot Springs, county of Garland and State of Arkansas, from the 15th day of September, 1908, to the 15th day of September, 1909, for the consideration of the monthly rent of one hundred ($100) dollars to be paid in advance on the first day of each and every month of said term, and for other valuable considerations hereinafter mentioned and described in the premises and covenants of said lessee hereinafter set forth.
“The said lessee hereby agrees and promises to pay to the lessor the sum of one hundred ($100) dollars on the first day of.each and every month during the continuance hereof as rent for said premises. That is to say, said lessee is to pay one hundred ($100) dollars upon the execution and delivery of this lease and one-hundred ($100) dollars on the 15th day of each succeeding month during the.term of this lease; and, as security for the payment of said rent and the faithful performance of his covenants as lessee herein, he has agreed, and does hereby agree, to pay to said lessor, upon the execution of this lease, the sum of three hundred ($300) dollars in lawful money of the United States, which said sum is to be held by said lessor to secure' him against all loss from the nonpayment of rent on the part of said lessee, and for all damage done, suffered or permitted by said lessee to the property herein leased during the term of this lease.”
The contract was signed by both parties. It contained no stipulation or warranty that the roof of the house was in good repair, or that it would not leak, or to keep the same or house in repair.
Johnson instituted an action against Delaney on this contract, in the Garland Circuit Court, to recover the $300. He alleged in his complaint that he and defendant entered into the foregoing contract; that pursuant to the terms thereof he deposited with the defendant the $300 as security for the payment of rent; that the house at the time he rented it was untenantable; that its roof, in rainy weather, leaked to such an extent as to - make the rooms of the house untenantable; that this defect was not known to him at the time he executed the lease; that defendant warranted the roof to be in good condition, and that it would be kept in good repair during the term of the lease; that plaintiff, on account of the condition of the roof, was compelled to surrender the house on the 15th day of January, 1909; that he demanded the return of the $300, and the defendant refused to pay it. He therefore asked for judgment for the. $300 and interest.
Defendant answered and denied all the material allegations of the complaint.
In a trial before a jury plaintiff, Johnson, testified that he entered into the foregoing contract of lease with the defendant; that while he and defendant were looking at the house, before 'executing the contract, he asked the defendant if the house leaked, and he replied it had, but it did not then. He testified, over the objection of the defendant, that the defendant further replied that he would guaranty that the house did not leak, and that the roof was in good condition. He also testified 'that he deposited the $300 with the defendant, who still had it; that when the first rain fell after he took possession of the house he discovered that it leaked to such an extent as to be untenantable; that he notified defendant that it leaked and requested him to repair it, and he failed to do so; that he gave up the house on the 15th of January, 1909, on account of the leaking roof, and paid the rent up to that time but no more; that he demanded the $300, and the defendant refused to pay it, • saying he would do so if plaintiff would comply with his contract.
Delaney, the defendant, testified that he told plaintiff, before renting the house to him, that it did not leak, and it did not at that time; that “it was in good shape at the time he took it; that he had no knowledge of any leaks until after plaintiff had given the house up.” “That he never agreed to make any repairs or changes in the house at all; it was to be turned over to plaintiff just as it was. After plaintiff left he had the roof repaired and leales closed for three dollars and fifty cents or four dollars.”
Much other evidence, unnecessary to set out, was adduced by both parties.
The court at the request of plaintiff gave to the jury, over the objections of the defendant, three instructions, among which is the following:
3. “You are instructed that it is the duty of the landlord to keep the roof of a demised building in reasonably good condition to prevent leaking, and, if the roof became leaky, it is his duty to make the repairs within a reasonable time after notice thereof, failing in which the tenant may terminate the lease and recover any sum deposited by him as security for the rent.”
And the defendant asked for six, and the court gave two and refused the other four. It is unnecessary to copy the other instructions given or those refused. It is sufficient to state the law by which the court should have been governed when acting upon them.
The jury -returned a verdict in favor of the plaintiff for $300, for which the court rendered judgment in- his favor. The defendant appealed.
Appellee says that appellant excepted en masse to the three instructions given by the -court at his request, and that, if'any one of the three should have been given, his objection should not have been sustained; and that he excepted in the same manner to the refusal of the instructions asked by himself, and that, if any one of them should have been refused, his objections was properly overruled. But appellee’s contention is not tenable. The following is the exception to instructions given as noted of record: “To the giving of each of said instructions numbered one, two and three the defendant at the proper time excepted and asked that his exception to the giving of each of said instructions be noted of record, which was accordingly-done.” His exception to the refusal of instructions is noted as follows: “The court gave instructions numbered three and four as asked by the defendant, but refused to give instructions numbered one and two, asked by the defendant, to which refusal to give said instructions one and two and each of them, the defendant at the time excepted and asked that his exceptions to the refusal to give each of said instructions be noted of record, which was accordingly done. That the court, refused to give instructions numbered five and six as asked by the defendant, to which refusal of the court to give said instructions and each of them respectively as asked by the defendant, the defendant at the time excepted, and asked that his exceptions to the refusal of the court to give each of said instructions respectively be noted of record, which was accordingly done.” From these notes on record it appears that the word used to designate the instructions excepted to was “each,” which means that every instruction to which it refers was excepted to separately, and not collectively. It is not an appropriate word to designate several collectively and independently of each other, without considering them severally, but is sufficient to raise objections to instructions severally when designated by it as excepted to. Geary v. Parker, 65 Ark. 521, 525. Defendant’s exceptions were properly reserved.
Unless a landlord agrees with his tenant to repair leased premises, he cannot, in the absence of a statute, be compelled to do so, and cannot be held liable for repairs. 1 Taylor’s Landlord and Tenant (9th ed.), § § 327, 328; Jones v. Felker, 72 Ark. 405; Gocio v. Day, 51 Ark. 46; Haizlip v. Rosenberg, 63 Ark. 430.
The court erred in giving instruction numbered 3 and copied in this opinion.
As to other questions in the case, it is sufficient to say: Parol evidence is inadmissible to vary, qualify or contradict, to add to or subtract from, the absolute terms of a valid written contract containing no ambiguity. (Richie v. Frazer, 50 Ark. 393). But “an intentionally false and misleading representation, which induces a written contract, to another’s injury, is a tort outside the contract, and provable by parol.” (Hanger v. Evins, 38 Ark. 334). “In order to vitiate a contract on the ground of fraudulent misrepresentation, the misrepresentation must relate to a matter material to the contract and in regard to which the other party had a right to rely, and did rely, to his injury.” If the means of information as to the matters represented is equally accessible to both parties, they will be presumed to have informed themselves; “and, if they have not done so, they must abide the consequences of their own carelessness.” Righter v. Roller, 31 Ark. 170; Cooper v. Merritt, 30 Ark. 686; Yeates v. Pryor, 11 Ark. 58; Wilson v. Strayhorn, 26 Ark. 28; Hill v. Bush, 19 Ark. 522; Grider v. Clopton, 27 Ark. 244; Dugan v. Cureton, 1 Ark. 31; Hughes v. Sloan, 8 Ark. 146.
Reverse and remand for a new trial. | [
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Battle, J.
At the August, 1909, term of the Columbia Circuit Court, the grand jury indicted John Ferguson for murder in the first degree, committed by killing Dock Owens. He was tried by a jury, and convicted of voluntary manslaughter, and his punishment was assessed at two years in the State penitentiary. He filed a motion for a new trial, one ground of which .was the misconduct of one of the jurors, and filed two affidavits to sustain it, which are as follows:
“G. B. Mixon states that he lives in the town of Magnolia, county of Columbia, and State of Arkansas; that he is engaged in the mercantile business in said town in a brick building on the north side of the square in said town, adjoining the building owned by the Farmers’ Bank & Trust Company; that, while the jury in the case of the State of Arkansas against John Ferguson were in the custody of W. A. Scott, the officer having charge of said jury, while they were passing his store, one of the jurymen, towit, S. T. Bright, left said jury, and went to the rear end of his store, while the remaining panel of said jury, together with the officer in charge, passed on by his store to the corner of the Farmers’ Bank & Trust Company; and there .remained until S. T. Bright returned to them; that the said S. T. Bright, when he went to the rear end of his store build.ing, was out of the presence of the jury and officer in charge, and was out of the sight, presence and hearing of each and all the remaining panel on the jury and the officer in charge. This occurred after the jury was impaneled to try the case of the State against John Ferguson and placed in charge of W. A. Scott, and before the verdict was rendered in this case by them. G. B. Mixon.
“Subscribed and sworn to (before me this the 4th day of March, 1910.
“Walker Smith, Notary Public.”
The other was the affidavit of Vaughan Stewart, and is the same as the affidavit of G. B. Mixon, except as to the name ■of the affiant.
Immediately after the filing the motion and affidavits, it was submitted to the court. The court asked the counsel of the defendant if he desired to argue the motion, and, upon his answering that he did not, overruled the same. It was not read to the court, nor was there any request therefor by the court or counsel; nor was the court’s attention directed to any improper conduct of the jury, or to the affidavits of Mixon and Stewart. The defendant appealed.
The failure of the court to read or have read the motion for a new trial and the affidavits supporting it can not deprive the accused of a new trial, if he was entitled to it. He should have' understood upon what he was ruling before deciding.
The rule as to the separation of jurors during a trial in ■a felony case is stated in Maclin v. State, 44 Ark. 115, 119, as follows: “But it has long been the rule of this court in case of felony that a separation of a juror from his fellows pending the trial casts upon the State the burden of showing that no improper influence was brought to bear upon the juror during his absence. In other words, the mere fact that a juror separates from his fellows, without the order of court, is prima facie ground for a new trial, unless it affirmatively appears that the separating juror was not subjected to any noxious influence.” The object of this rule is apparent. The jury are kept together, and an officer is put in charge of them and directed to see that they do not separate to protect the defendant against out side influence. They are not allowed to have any communication with outside persons with respect to the guilt or innocence of the defendant on trial, and it is the duty of the officer in charge to see that they do not. This protection is due to the defendant, and the State should see that he receives it. It is not expected of him to employ some one to watch the jury and report any misconduct on their part. Hence, when they separate, the burden is upon the State to show, by circumstances or directly, that the absent juror was not subjected to any injurious influence.
In this case it was shown that, while the jury were in the custody of W. A. Scott, the officer in charge of them, were passing a certain store, one of the jury, S. T. Bright, left them and went to the rear of the store, and the remainder of the jury and officer in charge passed on to the corner of the Farmers’ Bank & Trust Company, and there remained until Bright returned to them. During that time he was out of the sight, presence and hearing of each and all of the other jurors and the officer in charge. How long he was absent, or where he went, or whether he could have been subjected to any prejudicial influence in the time and place of his absence, does not appear. The State, failed to show that he was not subjected to undue influence during his absence, and the defendant is entitled to a new trial.
Inasmuch as the appellant can not be tried again for any offense except for manslaughter, it is not necessary to notice any question that arose in the trial that can not' arise in the next trial.
Appellant and Owens were on friendly terms at all times previous to the trouble which ended in the killing of Owens. The killing was the result of anger suddénly aroused at the time. The law of self-defense in such cases is as follows: “No one, in resisting an assault made upon him in the course of a sudden brawl or quarrel, or upon a sudden encounter, or in a combat on a sudden quarrel, or from anger suddenly aroused at the time' it is made, or in a mutual combat, is justified or excused in taking the life of the assailant, unless he is so endangered by such assault as to make it necessary to kill the assailant to save his own life, or to prevent a great bodily injury, and he employed all the means in his power, consistent with his safety, to avoid the danger and avert the necessity of killing. He can not provoke an attack, bring on the combat, and then slay his assailant, and claim exemption from the consequences of killing his adversary on the ground of self-defense. He can not invite or voluntarily bring upon himself an attack with the view of resisting it, and, when he has done so, slay his assailant, and then shield himself on the assumption that he was defending himself. He can not take advantage of a necessity produced by his own unlawful or wrongful act. After having provoked' or invited the attack, or brought on the combat, he can not be .excused or justified in killing his assailant for the purpose of saving his own life, or preventing a great bodily injury, until he has in good faith withdrawn from the combat as far as he can, and done all in his power to avoid the danger and avert the necessity of the killing. If he has done so, and the other pursues him, and the taking of life becomes necessary to save life or prevent a great bodily injury, he is excusable.” Carpenter v. State, 62 Ark. 306, 307, and cases cited.
It is unnecessary to comment on instruction numbered ten given at the instance of the plaintiff as to the burden of proving circumstances that will justify or excuse the defendant for killing .the deceased, the killing being proved, as it will be inappropriate in the next trial.
It is also unnecessary to discuss the admissibility of the protest against the re-employment of the defendant as a teacher in the trial had, as it will be inadmissible in a second trial, malicious intent in the killing of Owens being eliminated by the verdict of the jury in the first trial.
Reverse and remand for a new trial. | [
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Battle, J.
The Pulaski Heights Sewerage Company is a corporation organized under the laws of Arkansas for the purpose of -building a sewer in the territory known as Pulaski Heights. Before the sewer was constructed J.. F. Loughborough purchased many lots of ground in that territory. After his purchase the sewer was completed. Loughborough built a residence upon a part of his lots, and connected his house with the sewer in usual manner. He did so without compensating the sewerage company for the same. On this account' the sewerage company severed his connection, and Loughborough thereupon again united and filed a complaint in the Pulaski Chancery Court against the Pulaski Heights Sewerage Company and Pulaski Heights Land Company, and asked that defendants be restrained from interfering with his connections with the sewer until the town council of Pulaski Heights has given the sewerage company a right to operate the sewer and has fixed the fees for connection with the same. An order temporarily restraining the defendants from interfering with the sewer connection was 'made by the court. The defendants answered.
The only question in the case is, what compensation will entitle Loughborough’s house to connection with the sewer of Pulaski Heights Sewerage Company? The chancery court, after hearing the evidence, held that plaintiff was entitled to connect his house with the sewer upon payment of $50, and made the temporary restraining order perpetual, and the defendants appealed.
The sewerage company contends that it is a private corporation, and no one has a right to connect with its sewer except upon terms to which it shall agree. Is it correct? In Munn v. Illinois, 94 U. S. 113, 126, it is said: “Property does become clothed with a public interest when used in a manner to make it of public consequence, and affect the community at large. When, therefore,' one devotes his property to a use in which the public has an interest, he, in effect, grants to the public an interest in that use, and must submit to be controlled by the public for the common good, to the extent of the interest he has thus created. He may withdraw his grant by discontinuing the use; but, so long as he maintains the use, he must submit to the control.” “Upon this principle, the Legislature can fix the maximum of charge for the storage of grain in public warehouses, and for carriage of freight and passengers by common carriers. From the same source comes the power to regulate millers, bakers, hackmen, ferriers, wharfingers, innkeepers, and the like; ‘and in so doing to fix the maximum of charge to be made for services rendered, accommodations furnished and articles sold.’ Munn v. Illinois, 94 U. S. 113; Budd v. New York, 143 U. S. 517; Dow v. Beidelman, 125 U. S. 680; S. C. 49 Ark. 325; Mobile v. Yuille, 3 Ala. (N. S.) 140. Upon the same principal it was held in Spring Valley Waterworks v. Schottler, no U. S. 347, ‘that it is within the power of the government to regulate the price at which water shall be sold by one who enjoys a virtual monopoly of the sale.’ ” Leep v. Railway Company, 58 Ark. 416.
The sewerage company was organized for the purpose of constructing, maintaining and operating sewers, and renting or selling the right to connect with and use the same. It constructed a sewer about twelve or thirteen hundred yards long, or long&r. All persons who wish, upon payment of the fee demanded, are allowed to connect with and use it. About one-third of it is built upon private property. It is not confined to the use of any particular persons, but all who can are invited to connect with and use it upon the payment of a fee agreed upon. All persons hereafter buying real estate sufficiently near to make it useful, upon paying the fee, may make connection and use it. To the public within reach of it, or who may come within reach of it, it is useful and necessary in many ways. The sewerage company has in this way devoted the sewer to a use in which the public has an interest.
In the absence of legislation as to the maximum of charges for the use of sewers courts in cases like this can determine what is reasonable. They can not prescribe rates which shall be charged in the future and in cases other than that before them. That would be a legislative act. Munn v. Illinois, 94 U. S. 133, 134; Salt River Valley Canal Co. v. Nelssen (Ariz.), 85 Pac. 117.
In Salt River Valley Canal Co. v. Nelssen, 85 Pac. 117, in which the court determined the amount a corporation should charge, the court said: “In determining what.is a reasonable price to be charged for services by a public corporation, an examination must not only be made from the point of view of the corporation, but from that of the one served also. A reasonable rate is not one ascertained solely from considering the bearing of the facts upon the profits of the corporation. The effect of the rate upon persons to whom services are to be rendered is a deep concern in fixing thereof, as is the effect upon the stockholders or bondholders. A reasonable rate is the one that is as fair as possible to all whose interests are involved.”
In Covington & Lexington Turnpike Road Co. v. Sandford, 164 U. S. 578, 596, the question under consideration was what was a reasonable toll to be charged by a turnpike company ? The court said: “It can not. be. said that a corporation is entitled as of right, and without reference to the interest of the public, to realize a given per cent, on its capital stock. When the question arises whether the Legislature has exceeded its constitutional power in prescribing rates to be charged by a corporation controlling a public highway, stockholders are not the only persons whose rights or interest are to be considered. The rights of the public are not to be ignored. It is ■ alleged here that the rates prescribed are unreasonable and unjust to the company and its stockholders. But that involves an inquiry as to what is reasonable and just to the. public. * * * The public can not be properly subjected to unreasonable rates in order simply that the stockholders may earn dividends. * * * If a corporation can not maintain such a highway and earn dividends for stockholders, it is a misfortune for it and them which the Constitution does not require to be remedied by imposing unjust burdens upon the public. So that the right of the public to use the defendant’s turnpike upon the payment of such tolls as, in view of the nature and value of the services rendered by the company, are reasonable is an element in the general inquiry whether the rates established by law are unjust and unreasonable.” See also Smyth v. Ames, 169 U. S. 466. 544; San Diego Land Co. v. National City, 174 U. S. 739, 757; Railway Co. v. Smith, 60 Ark. 221.
The evidence in this case fails to furnish a satisfactory standard to determine what compensation for connection of plaintiff’s residence with the sewer of Pulaski Heights Sewerage Company would be reasonable and just to all parties. The nearest approach is the average costs of connections with sewers in Little Rock. The sewer in question is in the vicinity of that city. In Little Rock the average cost is about fifty or sixty dollars for a connection, mostly $50. One charge was as high as $83. As the cost of the sewer in question was expensive, more so than the average in Little Rock, we think that $60 should be allowed for a connection ■ with it in this case, the highest average in Little Rock; and it is so ordered.
Decree modified in accordance with this opinion. | [
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Hart, J.
This is an appeal by the North Arkansas Telephone Company from a judgment recovered against it by A. F. Steiner, suing by M. A. Williams as his next friend, for damages for injuries suffered by him on account of the alleged negligence of the company in failing to warn and instruct him as to the dangers incident to his employment.
The injury was received on the 3d day of December, 1907, and Steiner was at that time 17 years old. He was in the service of the company as a lineman, and had worked in that capacity for about two weeks. He had, however, previously worked for the company for several months as night operator. He was engaged in removing the wires from old pole to a new one when he was injured. The pole was an old one, but it was not being moved because it was old, but because the city wanted to build a sidewalk where it was placed. The pole appeared to be sound. 'Steiner climbed the old pole by means of climbing spurs, and, after reaching the top, fastened his body to the pole by means of a safety strap in order that he might have free use of his hands. The pole which he-climbed was not guyed or braced in any manner except by the service wires strung on it. When he cut these wires 'loose for the purpose of transferring them to the new pole, the old pole broke where it 'entered1 the earth, and Steiner fell to the ground with it. He jerked his feet loose, but 'his body being fastened to .the pole by his safety belt, he could not detach himself from it, and fell face downward with the pole. As the result of the fall -his right shoulder was dislocated, his left ankle badly torn up, and both bones of his right leg just below the knee were broken. He adduced testimony tending to show that his right leg had not recovered, and that he might become permanently lame. He stated that he still suffered pain from it when he walked a great deal. The trial occurred about two years after the accident happened. Steiner also testified that the pole was rotten where it entered the earth; that he had had no previous experience as a lineman except his two weeks’ service with the company, and that he had not been warned or instructed as to the dangers incident thereto.
The only assignment of error insisted upon by 'counsel for appellant is the action of the court in giving the following instruction :
“If defendant, by its authorized agent, ordered plaintiff into a place of danger to aid in disconnecting wires from a pole, and plaintiff by reason of youth and inexperience did not know of and appreciate the danger of the situation, and defendant knew this, or ought, in the exercise of ordinary care on its part, to have known it, then it was defendant’s duty to warn him of his danger, so that, as far as might be by proper care on his part, plaintiff could perform his duty in safety to himself; if the defendant failed in this respect, and plaintiff, while exercising due care for his own safety, by such failure suffered the injuries sued for, then plaintiff should recover in this action.”
The instruction in all essential respects is similar to one approved 'by this court'in the St. Louis Stave & Lumber Com pany v. Sawyer, 90 Ark. 473; and the principles of law embodied in it are discussed and approved in the case of the Arkansas Midland Ry. Co. v. Worden, 90 Ark. 406, in which our previous decisions on the subject are cited. Hence it may be said that the only question presented for our consideration is, was there sufficient testimony upon which to base the instruction? We must answer that question in the affirmative. The evidence shows that the pole was rotten at the point where it emerged from the earth. That experienced linemen always test old poles with a crowbar or other instrument at this point before climbing them. If found unsafe, the pole is braced in some way before the lineman climbs it; for the pole is in some measure braced by the service wires attached to it, and when these are removed there is no support whatever to the pole. If it has become decayed where it comes out of the ground, the swaying motion of the lineman while engaged in his work has a tendency to cause the pole to break at this point and fall when, the support of the service wires is taken away. Of these dangers Steiner says the company gave him no instructions or warning whatever, and of them he had no knowledge himself. It is true that he was well developed physically, as contended by counsel for appellant, and, so far as the record discloses, was possessed of average intelligence for a boy of his age. But he testified that, while he had worked for several months in the office as an operator, he had no experience in the work of a lineman. And on cross examination he said that, while he would naturally suppose that the work was dangerous to some extent, he did not know the dangers of rotten poles. His testimony, when considered as a whole, warranted the court in giving the instruction to the jury.
The jury returned a verdict for $3,850, and it is insisted that this was excessive. We do not think so. One of the physicians who attended Steiner testified tha.t his injuries were extremely painful, and healed very slowly. He stated that he examined the break in the right leg three or four days before the trial, and that there was a surplus fluid in the joint that did not belong there. That a diseased condition of the limb caused the fluid., That, while he believed the fluid would disappear in time and restore the knee to its normal condition, he could not state it as a positive fact. That it might continue to increase and cause lameness.
The judgment will be affirmed. | [
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Griffin Smith, C. J.
November 5,1940, an initiated salary law was adopted by tbe voters of Chicot county. Section 2 provides: “The county judge . . . shall receive as his salary, to cover, all and singular, his services and duties as county judge, judge of the juvenile court, judge of the court of common pleas, road commissioner, and county farm supervisor, and any and all other services rendered by him to the county, the sum of $2,500, and no more. The county judge shall serve as road commissioner; and the quorum court shall have the right to make a reasonable appropriation from road funds of the county for an expense account to him as such road commissioner, not to exceed, however, the sum of $500 per year. ’ ’
In January, 1941, the quorum court appropriated $900 to pay salary of a secretary to the county judge, $400 for rent and expenses of the welfare department, and $600 for county sewing rooms.
The county judge employed a road superintendent at $150 per month. An automobile was purchased for use of the judge as road commissioner, and for use of the salaried employe who had been designated road superintendent.
Claims have been filed covering the activities enumerated. With the exception of the judge’s salary it was sought, by injunction, to prevent payment. The chancellor held there was no authority for the county judge to employ a secretary, and granted relief as to that item. An appeal was taken. It was held that other contested claims were proper expenses of the county, and they were directed to be paid. From that order there is an appeal.
Under previous holdings of this court county salary acts are valid if properly enacted; and while and where they are in effect, their provisions must be looked to for authority to pay salaries if the person to whom payment is alleged to be due is embraced within such special act or if by necessary implication it is authorized.
In the instant case the county judge is to be paid $2,500 annually. There was no thought by those who drafted the salary act, or by the electors who adopted it, that the judge would require a secretary. If the people had intended he should be thus accommodated, or if they had felt that duties of the office required additional help, it is reasonable to suppose authority for the payment would have been expressed. In the absence of such authority, the item cannot be allowed.
It is stipulated that Chicot county owns two large diesel-driven caterpillar tractors with graders and various attachments for road building, also three large diesel-driven maintainers, and two small gasoline-driven motor maintainers. There are more than 800 miles of public roads in the county.
It is insisted that the county judge has not the time nor the experience to superintend operation of the machinery, etc. This may be true. Still, in adopting the salary act the people of Chicot county directed that the county judge should be road commissioner, and authorized the quorum court to make a reasonable appropriation from road funds “for an expense account to him as such road commissioner. ’ ’ Surely here is strikingly clear language denoting an intent that the county judge should supervise road work.
In 1929, by general act No. 97, p. 502, salaries of county judges were fixed. Section two of the act made such judges ex-officio road commissioners and provided that half of the salary might be paid from the county road fund, or county highway fund. The purpose of act 97 in superimposing a new duty — that of road commissioner —was implicit. No other construction would be rational. And so in respect of the Chicot salary act. There is nothing left for conjecture; and authority for enactment of the measure is found in Amendment No. 7 to the Constitution. Therefore, in spite of art. 7, § 28, of the Constitution, the act controls, because supported by constitutional authority to that end.
Although, the county judge is made road commissioner, the term is only slightly varied when a “superintendent” is employed. Whether the employe is called “superintendent,” or “commissioner,” the result is the same — an additional salary item of $150 per month, as to which nothing is to be found in the local act of 1940.
Expense of the county judge as road commissioner may aggregate $500 a year — no more — and there is no authority for buying an automobile for the so-called superintendent; nor may the county judge pass upon claims he files covering expense items. Ladd v. Stubblefield, 195 Ark. 261, 111 S. W. 2d 555.
It is our view that payments of rent and expenses of the welfare department, and payments for county sewing rooms, were proper. In Johnson v. Donham, 191 Ark. 192, 84 S. W. 2d 374, it was said, in effect, that in authorizing disbursement of money for county purposes, art. 7, § 28, of the Constitution, contemplates those purposes which promote -the welfare of the county as a whole.
That part of the decree denying* salary for a secretary to the judge and allowing payments to be made from the appropriation of $400 for rent and expenses of the welfare department, and from the appropriation of $600 for county sewing rooms, is affirmed. Allowance of salary to the road superintendent is reversed. Payment for an automobile for use of the county judge as road commissioner may be made from the appropriation of $500; provided, however, that all other expenses, for the year shall likewise come from the same appropriation; and provided, further, that when allowances of expense items in favor of the county judge are made, the rule announced in Ladd v. Stubblefield, supra, is not violated.
Nothing herein is intended to prohibit the county judge from employing competent men to handle county machinery and equipment, such employment to be from time to time as necessity may require.
“The county court has exclusive original jurisdiction in all matters relating to county taxes, roads, ferries, paupers, bastardy, vagrants, the apprenticeship of minors, the disbursement of money for county purposes, and in every other case that may be necessary to the internal improvement and local concerns of the respective counties.”
In Ladd v. Stubblefield, supra, it was said: “Sec. 20, art. 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.’ The county court, as county judge, being ex-officio road commissioner, was not competent to pass upon the road commissioner’s expense account.” | [
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Mehaffy, J.
The appellee brought this suit in the southern district of the circuit court of Logan county on February 17, 1910, to recover damages in the sum of $3,000 for personal injuries alleged to have been caused by pouring dry cement and lime into the hopper of a concrete mixer used by appellant in constructing buildings at the State Sanitorium near Booneville, Arkansas.
Appellee alleged in his complaint that he was a resident of the southern district of Logan county, Arkansas, and that appellant is a resident of the state of Oklahoma • engaged in the general contracting business, and was so engaged at all of the dates mentioned herein; that appellar 1 was awarded a contract to erect a building near Booneville and entered upon the performance of the contract on his part; appellee was born and reared on a farm and has spent his entire life upon the farm, knows no other business, calling or profession except, before’ receiving the injuries herein complained of, he could do unskilled manual labor; in August, 1939, appellee was employed by the appellant as a common laborer, and doing such jobs as he was directed to do by his superiors; he had been working only a short time when he was directed by his foreman, an employee of appellant, to pour dry cement and lime into the hopper of a concrete mixer; he had never before performed such a duty, was wholly inexperienced in working with and about dry cement and lime and did not know» the danger to himself, and the appellant, his agents, servants and employees in charge of the business did not instruct and warn plaintiff of the danger incident to such work; in obedience to the command of his superior, and in complete ignorance of the danger to himself, he proceeded for a number of hours to carry sacks of cement and lime which he emptied into the hopper as directed; in handling the cement and lime the same sifted through appellee’s clothes, covering his body and when emptying the sacks of cement and lime as directed, a large amount of dust therefrom would arise and envelop appellee, getting-into his eyes, ears, nose and throat, as well as covering his clothes and body; after four or five hours of this work his throat became sore, one eye began to burn and pain him severely; he began to burn under his arms, on his hands and arms, chest, stomach, legs and other parts of his body; that. night appellee could not sleep because of the pain he suffered resulting from the burns and the effect of cement and lime which he handled; next day he called a physician and has since that time been under the care and treatment of a physician; his injuries became so serious and painful that he was compelled to go to a hospital and remain there several days; he has expended more than $100 for medical attention and treatment, and has been unable to work until the present time; he is 28 years of age, and, at the time of his burns and injuries, he was strong, healthy and able-bodied, capable of doing and did do hard manual labor, but since his injuries he has been wholly and continuously disabled from per forming any work or labor; as the result of the negligence of appellant and Ms servants and employees, he has suffered great and excruciating pain and anguish; that appellant was negligent in failing to warn and instruct appellee of the danger of handling dry cement and lime; was negligent in failing to exercise ordinary care to provide a reasonably safe place to work, and was negligent in failing to take such precautions as were necessary and proper to protect appellee from injury; appellee has suffered constant physical pain and mental anguish as a result of the burns and injuries suffered, and his injuries are permanent.
The appellant, on April 10, 1940, filed motion to require appellee to make the complaint more definite and certain. Appellee did this by interlining and adding the name of appellant’s foreman. On the same date, appellant filed answer denying the material allegations of the complaint, and pleading specially contributory negligence and assumption of risk.
There was a verdict and judgment in favor of appellee in the sum of $3,000. Motion for new trial was filed and overruled, and the case is here on appeal.
The appellee testified in substance that he was 28 years old, married, and had one child; he was a farmer; was employed by appellant in constructing sanitorium buildings; had worked three days and six hours on the fourth day; when he first went to work he rolled a wheelbarrow, and also rolled a wheelbarrow on the second and third days that he worked; the next day he worked at the mixer; the foreman directed him to go to the mixer and dump cement and lime and he worked at that until five o’clock; he was told what proportion of lime and cement to mix; he had never handled dry cement before; was told to dump two sacks of cement and- a measure of lime in each hopper full; cement and lime were put in the hopper and the machinery dumped it pretty fast; had no time to keep down the dust; the weather was hot, he perspired freely; had to lift cement 16 or 18 inches to pour it into the hopper and the dust would fog up from the lime and cement; he did not know that there was any danger to him in handling the cement or lime; no one told him; he worked the entire afternoon that way; the cement was in sacks and weighed about 100 pounds; in handling these sacks during the afternoon the dust settled all over him, and just before finishing work he noticed that his arms were burning; he was also burning all over and had sweated through his clothes; it affected his throat; his eyes were burning; it was in his nose and burning on the arms; before he left the foreman told him to get vinegar, and he washed in vinegar and then went home; Short said the vinegar would cut off the lime and cement; he went home so hoarse he could not talk and his eyes were burning; he washed again in vinegar and used vaseline, but it did no good; the next day Mr. Short, the foreman, sent him to Dr. McConnell and he told him he was the worst burned man he ever saw; he took a knife and cut blisters, and then pulled it out of the skin with tweezers; his throat and eyes have not been the same since he was injured; he continued to go to Dr. McConnell until September 7th when he was released; his arms and hands had practically healed; the doctor gave him a statement that he was ready to go to work, but not in cement or lime; he would get worse, and then better, but he is still suffering constantly with his eyes, ears, nose and throat, and all over his body; he knew nothing about any kind of work, when he went to work for appellant, except farm work and common labor; he was strong and healthy and never had a doctor; since his injury, he has been unable to work, and suffers all the time with the injury to his throat, eyes, nose, ears, and other parts of his body.
Other witnesses testified to the injury received by appellee, and also as to his condition of health prior to the injury.
The evidence clearly shows that the appellant knew of the danger of working in cement and lime, and that appellee did not know of it. It was, therefore, the duty of the master to warn appellee of the danger.
This court recently said, in a very similar case: “Appellant was cognizant of the latent danger incident to wading in green concrete, and thé appellee-was not. Appellee had no knowledge by experience or otherwise that if the green concrete got into his boots or overalls, it would burn his feet and legs. Under these circumstances, the law imposed the duty on the appellant (employer) to warn appellee (employee) of the latent danger incident to the employment. The danger was not patent; so, under the circumstances, appellee was not required as a matter of law to take notice of it.” Barber v. Parker, 190 Ark. 34, 76 S. W. 2d 973.
“Where an employer knows the danger to which his servant will be exposed in the performance of any labor to which he assigns him, and does not give him sufficient and reasonable notice thereof, its dangers not being obvious, and the servant, without negligence on his own part, through inexperience, or through reliance on the directions given, fails to perceive or understand the risk, and is injured, the employer is responsible. The dangers of a particular position or mode of doing work are often apparent to a person of capacity.or knowledge of the subject, while others, from youth, inexperience, or want of capacity, may fail to appreciate them; and a servant, even with his own consent, is not to be exposed to such dangers, unless with instructions and cautions sufficient to enable him to comprehend them, and to do his work safely with proper care on his own part. ’ ’ 3 Labatt’s Master and Servant, (2 ed.) 3059, 3060.
Appellant’s first contention is that no actionable negligence of appellant was proved, and that appellee was not entitled to recover. If the master failed to warn the servant and because of that failure the servant was injured, this failure to warn him was negligence, and it seems clear from the evidence that the appellee did not know about the danger, and that the employer did. The appellee testified that the master did not give him any warning, and whether he did give warning or not was a question of fact for the jury, and its finding is conclusive here.
It is the province of the jury to determine the credibility of the witnesses and the weight of the testimony, and this court will not set aside a verdict supported by substantial evidence. In this case, there was substantial evidence not only that the appellee was ignorant of the danger, but that the master did not give him any warning.
In determining the sufficiency of the evidence, this court will consider the appellee’s evidence alone, and if there is any substantial evidence to support the verdict, it will not be disturbed by this court. Browne v. Dugan, 189 Ark. 551, 74 S. W. 2d 640; Missouri Pacific Transportation Co. v. Sharp, 194 Ark. 405, 108 S. W. 2d 579.
We said, in the last case: “In testing the sufficiency of the evidence, such evidence will be viewed in the light most favorable to the appellee and will be sustained where there is any substantial testimony to support it, although it may appear to the appellate court to be against the preponderance.”
Appellant has cited and quoted from many authorities. We do not discuss them because practically all of them are cases in 'which the knowledge of the servant was equal to the knowledge of the master, and here it is conclusively shown that the servant had no knowledge of the danger.
It is next contended by appellant that the appellee’s injury was not proximately caused by the appellant’s negligence. This contention is apparently based on the testimony of the doctors, who said that in their opinion appellee was suffering from dermatitis. Webster defines dermatitis as an “inflammation of the skin.” The American Illustrated Medical Dictionary gives numbers of causes, but one of the causes given is that it is due to a burn, scald, or sunburn. In appellee’s case, it was due to a burn by the cement and lime.
It is argued that he recovered from the concrete burns, but that opinion is against the evidence. Moreover, this question was settled by the verdict of the jury under proper instructions from the court, and they evidently believed, as they had a right to believe from the evidence, that the burn from the cement and lime was the cause of appellee’s injury and suffering. The doctors did not pretend to know what caused the dermatitis, but they apparently concluded that it was caused from something other than the burns.
The verdict on this question is supported by substantial evidence.
It is next contended that the court erred in giving appellee’s instruction No. 1, which reads as follows:
“If you find from the preponderance of the evidence that the plaintiff, Ward, was inexperienced in handling cement and lime, it was the duty of the defendant, Harmon, before orderiiig plaintiff, Ward, to handle, pour and mix the cement and lime, if you find that he so ordered him, to warn plaintiff fully of the latent or hidden dangers incident thereto, if there were any, of which defendant, Harmon, knew, or, in the exercise of ordinary care, he ought to have known, and defendant Harmon’s duty to plaintiff Ward extended even to patent or known dangers which Harmon knew that Ward, by reason of inexperience, was not aware of the danger to which he was exposed, if any, or which were unknown to Ward from any cause, and which would not be ascertained except by a person of peculiar knowledge, which he had no reason to suspect that Ward possessed.”
Appellant argues that the instruction was abstract and did not hate reference to the evidence in the case and the issues presented by the facts. The appellant is in error about this. The instruction states the facts and tells the jury that if they find from the evidence that Ward was inexperienced, it was the duty of appellant to warn and instruct him. As it appears to us, the instruction is based squarely on the evidence.
Appellant also objects to instruction No. 2 and says that the vice in this instruction is manifest because it is erroneously assumed therein that defendant failed in his duty to the plaintiff. The instruction does not assume this. In fact, it tells the jury that if appellant failed in his duty, as explained in these instructions, and such failure was the proximate cause of. the injury, if any, then they should find for the plaintiff, unless he was guilty of contributory negligence, or assumed the risk. It is argued that the court assumed that the injuries were proximately caused by appellant’s negligence. Not only is this incorrect, but the question was submitted to the jury for it to decide.
It is then argued that the evidence shows that the appellee’s skin disease had no connection-with any negligent failure to warn appellee of cement burns. The argument is that the evidence shows that the injury to appellee was not from cement burns at all, and that only surmise and conjecture support such a claim. The evidence introduced by appellee shows that the injuries were caused by the cement burns, and the surmise or conjecture is that it was caused by something else. However, this was a question submitted to the jury under proper instructions, and is conclusive here.
Objection is also made to instruction No. 10. There was only a general objection, and appellant argues that No. 10 should not have béen given because it assumed the evidence was sufficient to entitle plaintiff to recover. We think that the instruction not only does not assume this, but it submits this question to the jury for its determination, and its verdict is binding on this court.
Appellant’s last contention is that the verdict is excessive. The verdict is for $3,000 and we are of opinion that the evidence as to his injury, pain and suffering, was ample to justify the jury in finding for appellee in this amount.
A great number of instructions were given. We have carefully considered them all, and have reached the conclusion that there was no error in giving or refusing to give any instructions, and that the instructions as a whole fairly submitted the questions to the jury, and there was substantial evidence to support its finding.
The judgment is affirmed. | [
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Holt, J.
Gr. A. Dyer died testate May 30, 1929. He owned a tract of land in Mississippi county the title of which is involved here. He left surviving his widow, Grace G. Dyer, and a son, Haskell A. Dyer. His widow and son, appellants here, entered into a written contract with appellee, Will Lane, to sell to him the land above referred to. Lane refused to accept warranty deed from them to the land for the reason that they could not convey fee simple title. March 25,1941, appellants sued appellee to enforce specific performance of the contract. The trial court found the issues in favor of appellee and dismissed appellants’ complaint for want of equity. This appeal followed.
G. A. Dyer’s will contained the following provisions: “I, G. A. Dyer, give to my wife, Grace G. Dyer, all my possessions and valuables, regardless of what and where they may be. The possessions and valuables shall be the property of my wife, Grace G. Dyer, during her single life. Should she marry she shall retain half of my possessions and valuables, the other half going to my son, Haskell A. Dyer.
“Upon the death of my wife, Grace G. Dyer, all my possessions and valuables shall become the property of my son, Haskell A. Dyer.
“If my son, Haskell A. Dyer, dies prior to my wife, Grace G. Dyer, all my possessions and valuables shall become the property of my wife, Grace G. Dyer; and she, Grace G. Dyer, shall retain full possession of my possessions and valuables during her life, after which all of my possessions and valuables shall become the property of the heirs of my son, Haskell A. Dyer. If my son, Haskell A. Dyer, shall leave no heirs, all my possessions and valuables shall revert to my heirs.
“This will shall be administered by my wife, Grace G. Dyer, and my son, Haskell A. Dyer.”
The only question presented for our determination is: Does Haskell A. Dyer, the son, take a contingent or vested remainder in the real property of G. A. Dyer ?
The court below held that Haskell A. Dyer’s interest was that of a contingent remainderman and it is our view that ihis holding is correct.
It is a fundamental rule that in construing a will we try first to ascertain the intention of the testator and in arriving at this intention we take the will from its four corners and give consideration to the language used, and to give effect to such intention, if it can he done without doing violence to the law.
As was said in Hurst v. Hilderbrandt, 178 Ark. 337, 10 S. W. 2d 491, (quoting from Booe v. Vinson, 104 Ark. 439, 149 S. W. 524): “The purpose of construction of a will is to ascertain the intention of the testator from the language used, as it appears from the consideration of the entire instrument, and, when such intention is ascertained, it must prevail, if not contrary to some rule of law; the court placing itself as near as may be in the position of the testator when making the will.”
In the Hilderbrandt case, supra, this court in distinguishing* between contingent and vested remainders quotes with approval 23 R. C. L. 500, § 32, which is as follows:
“The fundamental distinction between the two kinds of remainders is that, in the case of vested remainder, the right to the estate is fixed and certain, though the right to possession is deferred to some future period, while, in the case of a contingent remainder, the right to the estate as well as the right to the possession of such estate is not only deferred to a future period, but is dependent on the happening of some future contingency. The broad distinction between vested and contingent remainders is this: In the first there is some person in esse known and ascertained, who by the will or deed creating the estate, is to take and enjoy the estate, and whose right to such remainder no contingency can defeat. In the second, it depends upon the happening of a contingent event, whether the estate limited as a remainder shall ever take effect at all. The event may either never happen, or it may not happen until after the particular estate upon which it depended shall have been determined, so that the estate in remainder will never take effect.”
It is apparent from the will before us that the testator’s widow, Grace G. Dyer, has a life estate in all of his property, unless she should re-marry, in which event her life estate would be only one-half. The son, Haskell A. Dyer, takes all the real estate on the death of his mother, should he survive her. Should the mother survive her son, she takes all for her life and upon her death it goes to the heirs of her son. If the son should die without heirs, then on the mother’s death the property reverts to the testator’s heirs.
We think a proper construction of this will means, that the testator, when he speaks of “the heirs of my son, Haskell A. Dyer,” meant the children of Haskell A. Dyer. Children may include adopted children as well as the children of one’s body. Deener v. Watkins, 191 Ark. 776, 87 S. W. 2d 994. In Powell v. Hayes, 176 Ark. 660, 3 S. W. 2d 974, this court said: “In the alleged will under consideration in this case the testator gave the balance of his property to his wife and heirs, as the law provides. In its strict legal sense the word ‘heirs’ signifies ‘those upon whom the law casts the inheritance of real estate. ’ But this construction will give way if there be upon the face of the instrument sufficient to show that it was to be applied to children. Flint v. Wisconsin Trust Co., 151 Wis. 231, 138 N. W. 629, Ann. Cas. 1914B, p. 67, and case note at p. 70; Commentary on Wills by Alexander, vol. 2, par. 850-852, inclusive; Page on Wills, 2d ed., vol. 1, p. 1496, § 891, and 28 R. C. L., p. 248, § 216.
“The word ‘heirs’ has been held to be susceptible of two interpretations; the one which is technical, and embraces the whole line of heirs; the other, not technical, but common, and is used to denote the heirs who may come under the designation of heirs at a particular time, and it is often used in common speech as synonymous with children. Turman v. White, 14 B. Mon. (Ky.) 560, and Feltman v. Butts, (Ky.) 8 Bush 115. The holding of this court is in accordance with this rule. Robinson v. Bishop, 23 Ark. 378, and Galloway v. Darby, 105 Ark. 558, 151 S. W. 1014, 44 L. R. A. (N. S.) 782, Ann. Cas. 1914B, 712.
“Looking at the entire will and all the circumstances surrounding the testator, we think the word ‘heirs,’ as used in the will, manifestly meant children.”
The statement in the will that if his son died without heirs the property should go-to the testator’s heirs would be meaningless, if the word “heirs,” as used, did not mean children, as the son could not die without heirs, if the father had heirs at the son’s death. In that case the son’s heirs would be in the ascending line.
Looking to the entire contents of this will and thus construing the words “heirs of my son, Haskell A. Dyer,” to mean the children of this son, necessarily Haskell A. Dyer’s interest must be contingent because it cannot be known what children would survive the son until the death of the mother who holds the life estate. Haskell A. Dyer is still alive and, of course, may or may not have children during his mother’s lifetime. The remainder could not vest in Haskell A. Dyer until the death of the mother, Grace G. Dyer. That is the time fixed for his remainder interest to take effect. Harrington v. Cooper, 126 Ark. 53, 189 S. W. 667, and Bell v. Gentry, 141 Ark. 484, 218 S. W. 194.
Finding no error, the decree is affirmed. | [
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Holt, J.
Appellant, H. D. Cole, was convicted in the municipal court of Fort Smith, Arkansas, for an alleged violation of the provisions of ordinance No. 1568 of that city. Appellants, Lois Bowden and Zada Sanders, were convicted in the same court for a violation of ordinance No. 1172. On appeal to the circuit court a jury was waived, and, by agreement, the causes were consolidated for trial and submitted to the court. Appellants were again convicted and fines assessed. This appeal followed.
That part of the ordinance under which H. D. Cole was convicted is as follows: “Item 10. Advertising: Distributors of circulars, handbills, samples or other advertising matter, $25 per annum, $5 per month, $1 per day; and each person engaging in distributing such advertising matter, whether upon his own account or as an agent, servant, or employee, shall pay said tax and shall keep in his or her possession, while so engaged, a receipt for said tax and exhibit same to the officers of the city upon demand.” Violation of this ordinance under another section is made a misdemeanor and punishable by fine.
And the ordinance under which Lois Bowden and Zada Sanders were convicted provides: “Section 1. That the license hereinafter named shall be fixed and imposed and collected at the following rates and sums and it shall be unlawful for any person or persons to exercise or pursue any of the following vocations of business in the city of Fort Smith, Arkansas, without first having obtained a license therefor from the city clerk and having paid for the same in geld, silver or United States currency as hereinafter provided. . . . Section 40. For each person peddling dry goods, notions, wearing apparel, household goods or other articles, not herein or otherwise specifically mentioned, $25 per month, $10 per week, $2.50 per day. A person, firm or corporation using two or more men in their peddling business $50 per annum. ’ ’ .Section 3 makes a violation a misdemeanor.
These causes are submitted on an agreed statement of facts:
Each of the appellants is a member of what is known as Jehovah’s Witnesses, which is not a religious sect. Appellants claim to be ordained ministers of the gospel and that the authority of ordination or commission of Jehovah’s Witnesses is given to them exclusively by Jehovah God. “They do not engage in this work for any selfish reason, but because they feel called to publish the news and preach the gospel of the Kingdom to all the world as a witness before the end comes. (Matt. 24:14.) They believe that in doing this they are engaged in work that the Almighty God declared must be done. To them the words ‘to preach’ mean to proclaim or publish. They claim to be publishers of the message of Jehovah making known His name and His government. Such publication is done by word of mouth, by distribution of the printed message, by the reproduction of recorded speech, by means of electrical transcription and phonographs and by the radio. They believe that the only effective way to preach is to go from house to house and make personal contact with the people and distribute to them books and pamphlets setting forth their views of Christianity.”
Appellant Cole on June 15, 1940, went about on the streets of Fort Smith selling “a paper magazine ‘Consolation’ setting forth their views of Christianity as held by Jehovah’s Witnesses upon the contribution of five cents. Enclosed in the magazine was a printed handbill giving information concerning a convention and extending an invitation to all interested to attend. This was a convention to be held in Columbus and other large cities simultaneously. The police officers of the city asked the price of the magazine. The defendant Cole stated that anyone who would contribute a nickel could have a copy. The defendant had no privilege license issued by the city of Fort Smith for passing out and selling handbills.
Appellants, Lois Bowden and Zada Sanders, on September 12, 1940, “were going from house to house in the residential section within the city of Fort Smith playing phonograph records upon which Bible lectures had been recorded at each house after having first secured permission. Also they were presenting to the residents of these houses various booklets, leaflets and periodicals setting forth their views of Christianity held by Jehovah’s Witnesses. . . . These defendants undertook to distribute these books to the residents of the city soliciting at the same time contribution of twenty-five cents for each book. . . . These books in some instances are distributed free when the people wishing them are unable to contribute. . . .”
Appellants earnestly urge here that the ordinances under which they were convicted violated their rights under the constitution of the United States in abridging the freedom of the press and prohibiting- a free exercise of their religion.
Amendment No. 1 to the constitution of the United States provides: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble and to petition the government for a redress of grievances.”
And § 1 of Amendment. No. 14 is: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
We take up first for consideration the charge against appellant Cole. Is the ordinance under which this appellant was convicted unconstitutional and therefore void? It is our view that it is unconstitutional and void.
As was said by the United States Supreme Court in Lovell v. City of Griffin, 303 U. S. 444, 58 S. Ct. 666, 82 Law ed. 949: “Freedom of speech and freedom of the press, which are protected by the First Amendment from infringement by Congress, are among the fundamental personal rights and liberties which are protected by the Fourteenth Amendment from invasion by state action. (Citing cases.) It is also well settled that municipal ordinances adopted under state authority constitute state action and are within the prohibition of the amendment. (Citing cases.) . . . The liberty of the press is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets. . . . ”
It will be observed from the agreed statement of facts, and the trial court so found, that “the defendant, H. D. Cole, is not charged with the violation of any ordinance in passing out or offering to the public said magazine ‘Consolation’.” He was convicted for distributing the circulars or handbills enclosed in the magazine, which magazine only he was selling for five cents per copy.
Under the plain terms of the ordinance in question it is made an offense punishable by fine, for any one to distribute circulars or handbills on the streets of Fort Smith without first having paid for a license to distribute them. The ordinance says nothing about distributing for profit nor is there any reference to peddling or engaging in a business such as referred to in the ordinance under which the other two appellants were convicted.
In the comparatively recent case of Schneider v. State (Town of Irvington), decided by the Supreme Court of the United States November 22, 1939, 308 U. S. 147, 60 S. Ct. 146, 84 Law ed. 155, the court had before it for joint consideration four causes, each of which presented the question whether regulations embodied in a municipal ordinance abridged the freedom of speech and of the press secured against state invasion by the Fourteenth Amendment to the Constitution.
The first ordinance considered was that of the city of Los Angeles, California, which provided, “No person shall distribute any handbill to or among pedestrians along or upon any street, sidewalk, or park, or to passengers on any street car, or throw, place or attach any handbill in, to or upon any automobile or other vehicle.” Ordinances similar in effect were considered from the cities of Milwaukee, Wisconsin, Worcester, Massachusetts, and Irvington, New Jersey.
The Los Angeles ordinance was upheld by the Superior Court of Los Angeles county, “that court being the highest court in the state authorized to pass upon such a case,” on the ground “that experience shows littering of the streets results from the indiscriminate distribution of handbills.” People v. Young, 33 Cal. App. 2d Supp., 747, 85 Pac. 2d 231.
The Milwaukee ordinance was held valid by the highest court of that state on the ground that “the purpose of the ordinance was to prevent an unsightly, untidy and offensive condition of the sidewalks.” City of Milwaukee v. Snyder, 230 Wis. 131, 283 N. W. 301.
The Worcester ordinance was upheld by the highest court of -that state on similar grounds. Commonwealth v. Nichols, 301 Mass. 584, 18 N. E. 2d 166.
The ordinance of the town of Irvington, New Jersey, provides: “No person except as in this ordinance provided shall canvass, solicit, distribute circulars, or other matter, or call from house to house in the town of Irving-ton without first having reported to and received a written permit from the chief of police or the officer in charge of police headquarters.” The Supreme Court of that state held: “That the petitioner’s conduct amounted to the solicitation and acceptance of money contributions without a permit, and held the ordinance prohibiting such action a valid regulation, aimed at protecting occupants and others from disturbance and annoyance and preventing unknown strangers from visiting houses by day and night.”
In holding each of these four ordinances unconstitutional and void, and reversing the judgment in each case, the Supreme Court of the United States, among other things, said:
“The motive of the legislation under attack in numbers 13,18 and 29, (the Los Angeles, Milwaukee and Worcester cases), is held by the courts below to be the prevention of littering of the streets, and, although the alleged offenders were not charged with themselves scattering paper in the streets, their convictions were sustained upon the theory that distribution by them encour aged or resulted in such littering. We are of the opinion that the purpose to keep the streets clean and of good appearance is insufficient to justify an ordinance which prohibits a person rightfully on a public street from handing literature to one willing to receive it. Any burden imposed upon the city authorities in cleaning and caring for the streets as an indirect consequence of such distribution results from the constitutional protection of the freedom of speech and press. This constitutional protection does not deprive a city of all power to prevent street littering. There are obvious methods of preventing littering. Amongst these is the punishment of those who actually throw papers on the streets.”
There is no contention that the ordinance under which Cole was convicted was intended to prevent the littering of the streets. As has been indicated, the ordinance denied to appellant the right to distribute the circulars in question without first having paid for a license.
The opinion in the Irvington case, supra, is concluded with this language: “We are not to be taken as holding that commercial soliciting and canvassing may not be subjected to such regulation as the ordinance requires. Nor do we hold that the town may not fix reasonable hourá when canvassing may be done by persons having such objects as the petitioner. Doubtless there are other features of such activities which may be regulated in the public interest without prior licensing or other invasion of constitutional liberty. We do hold, however, that the ordinance in question, as applied to the petitioner’s conduct, is void, and she cannot be punished for acting without a permit. The judgment in each case is reversed and the causes are remanded for further proceedings not inconsistent with this opinion. ’ ’
We come now to a consideration of the charges against appellants, Lois Bowden and Zada Sanders, for violating ordinance No. 1172. Under this ordinance these two appellants were charged with carrying on the business of peddling religious books at twenty-five cents per copy without first having procured a license. We think it clear that this ordinance is broad enough to embrace the character of goods, under the term “other articles,” that appellants were peddling, under the facts presented. We think it can make no difference as to what motives, religious or otherwise, that may have prompted appellants to peddle these books. We think there is no inhibition in the Constitution of the United States against the imposition of the license imposed by the ordinance in question. A similar question was presented in the case of Cook v. City of Harrison, 180 Ark. 546, 21 S. W. 2d 966, in which one of Jehovah’s Witnesses had appealed from a conviction of violating an ordinance of the city of Harrison, the applicable provisions of which were: ‘ ‘ That it shall be unlawful for any person or persons to engage in, exercise or pursue any of the following avocations or businesses without first having obtained and paid for a license therefor from the proper city officials, the amount of which license is hereby fixed as follows, to-wit: . . . Section 13. For each book, picture or picture frame peddler, five dollars per month, or twenty-five dollars per year. . . . Section 31. Whoever shall engage in any business for which a license is required by this ordinance, without first obtaining and paying for same as above required, shall be deemed guilty of misdemeanor, and upon conviction shall be fined in any sum not exceeding $300,”
The facts in this Harrison ease are in all respects similar to those presented here. There this court said: “The gist of appellants’ contention for a reversal of the judgment is that the ordinance does not forbid the hawking or peddling of religious tracts, or books, especially if the parties distributing them are prompted by religious motives. We find no such exception in the' ordinance. No distinction appears in the ordinance between the character of books distributed or the motives prompting the distribution thereof. The Constitution of the state authorizes the imposition of a tax or license on hawkers or peddlers, irrespective, of the kind of goods, wares or merchandise distributed by them, and there is no inhibition in the Constitution of the United States against the imposition of a tax or license upon them. The imposition of such a tax is not an abridgment of religious freedom or an infringement upon the constitutional guaranty of religious liberty.”
We do not think the case of Lovell v. Griffin, 58 S. Ct. 666, 303 U. S. 444, 82 L. ed. 949, controls here. The provisions of the ordinance considered there were materially different from the one before us. We think the case of Cook v. City of Harrison, supra, controls here and that the ordinance under which appellants, Lois Bowden and Zada Sanders, were convicted is valid and constitutional and must stand. Accordingly the judgment as to appellant, H. D. Cole, is reversed and the cause dismissed. As to appellants, Lois Bowden and Zada Sanders, the judgments are affirmed. | [
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Griffin Smith, C. J.
Appellant, a citizen and taxpayer, brought suit against designated Pulaski county officials to prevent payment for publishing the list of real property delinquent in 1940 on 1939 assessments. The Arkansas Democrat 'Company intervened, alleging it had in good faith rendered the service under direction of the county clerk. The intervener also relied upon a letter written by the attorney general in June, 1935, in which the opinion was expressed that the publication was authorized.
The trial court thought § 10084 of Crawford & Moses’ Digest had been amended in such manner as to dispense with publication of the list of landowners and the description of property, but adjudged that the intervener should be paid because it had rendered the services under contract with the county clerk.
As stated by appellant, the two questions are (1) whether the list of delinquent lands and the names of taxpayers should be published, and (2) whether the printer may be paid-if there was no legal authority for publication.
Because of distressed financial conditions in 1933, the Forty-ninth General Assembly carried into effect a program of retrenchment. In lieu of publication in full of delinquent land lists, a notice not larger than six inches double column was substituted. Act 250, March 30, 1933. In Smith v. Cole, 187 Ark. 471, 61 S. W. 2d 55, the first four sections of the act were held unconstitutional.
•Sections five and six of act 250 amended §§ 10084 and 10085 of Crawford & Moses’ Digest. It was held in Matthews v. Byrd, 187 Ark. 458, 60 S. W. 2d 909, that these sections were severable from those declared invalid in the 'Smith-Cole Case, and they were not affected by the decision.
It is conceded by appellees that act 250 dispensed with publication of delinquent lists and substituted notice.
Act 16 of the special session of 1933, approved August 25, amended act 250, but the requirement for publication is substantially the same.
It is appellees’ contention that the section of act 170 of 1935 requiring publication of the “list of delinquent lands” was not repealed by act 282 of 1935.
The word “notice” appears twice in the pertinent parts of act 282, the final reference being that it shall be printed “as may be provided by law.”
In Hirsch and Schuman v. Dabbs and Mivelaz, 197 Ark. 756, 126 S. W. 2d 116, act 250 of 1933 was discussed. The statement was made (referring to § 6 of act 250 as it amended § 10085 of Crawford & Moses’ Digest) that “. . . under this amendatory section [a permanent record of lands returned delinquent] becomes indispensable. This amendatory section dispenses with the necessity of publishing the list and description of the delinquent lands. A six-inch, double column notice advises that delinquent lands will be sold, but does not describe the land to be sold. That information cannot be obtained from the published notice, but can only be had by examining the permanent'record in which the delinquent list of lands has been copied.”
Then there is reference to act 16, with the statement that it, also, dispensed with publication of land descriptions.
The construction given act 250 in the Hirsch Case was affirmed in McAllister v. Wright, Trustee, 197 Ark. 1156, 127 S. W. 2d 645.
From act 282 there was omitted the limitation found in acts 250 and 16 that not more than six inches of double column space should be used in giving notice that the delinquent list was on file with the county clerk.
It is insisted by appellant that § 5 of act 282, with § 5 of act 250, “furnish a complete law, clear and unmistakable in its terms, providing that the clerk of the sev eral comities shall record the delinquent list in a well-bound book, appropriately labeled, which shall become a permanent record and open to the inspection of the public; and, that there shall be published a notice to the effect that the delinquent lands recorded in said delinquent landbook will be sold on a day certain.”
In respect' of the two cases appearing in the, 197th Reports, appellant says: “'Counsel evidently overlooked that this was the act in effect when this court rendered the decisions ... in which it was held that the act dispensed with the necessity of describing the land. Unless those decisions are to be overruled, this court has already decided this question against appellee’s contention. ’ ’
The Sehuman-Mivelaz Case was consolidated, for trial with the Hirsch-Dabbs Case. In the Mivelaz Case the land was sold in 1933 for taxes assessed in 1932, while in the Dabbs Case the sale was in 1934 for taxes assessed in 1933. In the McAllister-W right Case the sale was in 1933 for taxes assessed in 1932. The opinions were written in March and April, 1939, but dealt with the law applicable to sales for the years in which made. Hence, acts 170 and 282 were not involved, and the cases referred to do not control here.
No emergency was declared in respect of act 282; hence, it became effective June 13. As to act 170 an emergency was declared, and it became a law when signed by the governor March 21, as to the provisions not in conflict with act 282, or other subsequent statutes.
Act 16 granted to taxpayers the right to pay in three installments. It was directed that the delinquent notice be printed once weekly between the first and third Mon days in November, with sale on the third Monday in November. Final installment of taxes was payable not later than the third Monday in October.
Act 170 makes no reference to installment payments. It is entitled: “An act to provide a more efficient means of collecting real property taxes and to provide means by which the state may acquire good title to lands upon which taxes have not been paid.”
The collector is required, not later than the first Monday in November, to file with the county clerk the so-called delinquent list. The clerk must cause the list to be published once weekly for two weeks between the second Monday in November and the second Monday in December. Following the descriptions a form of notice is prescribed, the effect of which, prima facie, is to vest in the state on the second Monday in December title to all real property not privately redeemed. Dqties of other officers, both state and county, are set out, but are not material here»
Act 282 is entitled: “An act providing for the settlement of all county officials and to amend §§ 1, 4, 5, and 6 of act 16 of the special session of'August 14th, 1933, of the general assembly of the state of Arkansas, and for other purposes.”
■Section 1 declares delinquent all taxes unpaid after the first day of October. The collector’s settlement must be made before the first Monday in December.
In amending § 1 of act 16, ultimate time for payment of the third tax installment is October 1.
Section 4 of act 282 amends § 4 of act 16 by making it the duty of the collector to file with the clerk his list of delinquent taxes not later than October 15.
Section 5 of act 282 amends § 5 of act 16, causing it, as amended, to read:
“There shall be published once weekly between the fifteenth day of October and the first Monday in November, in each year, in any county publication qualified by law, a notice to the effect that the delinquent lands, tracts, lots or parcels of lots so entered in said delinquent book will be sold, or so much thereof as is necessary to pay the taxes, penalties and costs due thereon, by the county collector, at the court house in said county (or district) on the first Monday in November next, unless the taxes, penalties and-costs be paid before that time, and that the sale will be continued from day to day until the said tracts, lots and parcels of lots be sold. Said notice of sale of delinquent real estate for taxes shall be printed as may be provided by law.”
'Section 6 of act 282 amends % 6 of act 16 by providing: “The collector shall attend at the court house in his county on the first Monday in November next after the publication of the list as herein described” . . . and shall offer the property for sale. In respect of lands not privately purchased, the collector is directed to bid all such off in the name of the state.
The question is, Did act 282 repeal act 170, or by implication amend § 2 of act 170; or, otherwise considered, are the two statutes in pari materia¶
It would be difficult to adopt language more clearly .expressing an intent to require publication of the delinquent list than that used in act 170. Section 9 fixes the printer’s fee at twenty-five cents per tract; but, as heretofore shown, publication is for two weeks between the second Monday in November and the second Monday in December, while act 282 calls for publication “once weekly between the fifteenth day of October and the first Monday in November.” Under act 170 the notice following the delinquent list is that “title to [the property] will vest absolutely in the state of Arkansas on the second Monday in December, . . . unless sooner redeemed by any party of interest in said lands upon the payment of the taxes for which said lands are now delinquent, together with all taxes which would have been paid up to the time of redemption, together with the penalty as fixed by law, officers’ cost and cost of publication. Said redemption shall be made in the manner now provided by law. ’ ’
Section 4 of act 170 requires the clerk, before the first day of January in each year, to certify to the state land commissioner all delinquent property “which has not been redeemed within the time prescribed by this act. ’ ’
It will be seen that act 170 does not contemplate a sale of delinquent property in the manner formerly known; but, on the contrary, the publication is intended as notice to delinquent taxpayers that unless they or those in interest redeem prior to the second Monday in December, title will vest in the state without further formality.
Act 282 directs that a sale be had, and authorizes the collector to bid in for the state all unredeemed property.
The acts, therefore, are in conflict both as to the time of publication and as to the duties of the collectors.
While the word “notice” is used in § 5 of act 282, ■§ 4 refers to “a list or lists of all such taxes levied” and the descriptions attending the assessment of such property. The last sentence in the section is that “Said notice of sale of delinquent real estate for taxes shall be printed as may be provided by law”; and this is followed by a direction to the collector to offer the property for sale “on the first Monday in November next after the publication of the list as herein described.”
The only “list” described is the delinquent tax roll-^not the notice, or a notice.
The use of particular words suggests on the one hand a possible intention by the general 'assembly to limit publication to the notice provided by act 16; yet on the other hand- it seems to have been in the legislative mind that there would be publication “of the list as herein described.”
Act 16 expressly limited notice to newspaper space not exceeding six inches, double column. It is noteworthy that in act 282 this restriction was abandoned. It is also a matter of common knowledge that since the attorney general’s opinion was given in 1935, newspapers generally have published the detailed delinquent lists, and the general assemblies of 1937 and 1939 did not deal with the subject.
We hold, therefore, that omission from act 282 of the provision contained in act 16 limiting newspaper space to six inches, double column, was evidence of an intention by the general assembly not to re-enact the old law, and that reference to publication of “the list herein described” could only mean the delinquent list. Hence, the county clerk was not without the authority questioned.
Affirmed.
Defendants were L. B. Branch, sheriff and collector; J. G. Burlingame, county judge; L. A. Mashburn, county clerk, and Gus Bush, county treasurer.
The county officials demurred to the complaint. Plaintiff (appellant here) demurred to the intervention. It was overruled. Plaintiff elected to stand on the demurrer; whereupon the complaint was dismissed. In the decree it was said: “It is not necessary to pass upon the demurrer of the defendants to the complaint, as the judgment of the court in overruling the demurrer to the intervention relates back to the complaint and effectually disposed of all questions arising herein.”
The sections related to salaries of county officials.
The mandate of act 250 was that the notice be published for two weeks between the second Monday in May and the second Monday in June.
Hirsch & Schumann v. Dabbs and Mivelaz, and McAllister v. Wright, Trustee, supra.
The reference seems to be to act 16 of the special session of 1933.
Act 170 was house bill 258. Final vote in the house was had March 8. The bill was then sent to the Senate and passed March 32.
Act 282 was Senate bill 532 and was approved by that body March 12 and sent to the House, where it was passed March 13. It was returned to the Senate, March 13. The Fiftieth General Assembly (1935) adjourned March 14. Both acts, therefore, were on the governor’s desk after adjournment — act 170 until March 21, and act 282 until March 28.
According to the form of notice, redemption could be by “any party of interest in said lands.” | [
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Smith, J.
The Coca-Cola Bottling Company filed here its petition for a writ of prohibition against the Honorable J. 0. Kincannon, judge of the Crawford circuit court, and, as grounds therefor, alleged the following-facts. Mattie Cromwell filed suit in the Crawford circuit court against petitioner, in which she alleged that she purchased a bottle, of Coca-Cola, bottled by peti tioner, in Sebastian county, and after having drunk a part thereof became suddenly and violently ill, and she prayed judgment for $10,000 to compensate the illness.
The summons which issued out of the office of the clerk of the Crawford circuit court was directed to the sheriff of Sebastian county, in which county it was served upon petitioner, and no service was had upon petitioner in Crawford county.
Respondent held this service sufficient to confer jurisdiction upon the Crawford circuit court under the authority of act 314 of the 1939 Acts of the General Assembly of Arkansas, p. 769.
It is alleged that this service is not sufficient, for the reason that act 314 contemplated only such causes of action as result from accident or casualty, and does not include a claim for damages by reason of being sick or ill.
Act 314 is entitled, “An act to fix the venue of actions for personal injury and death,” and, exclusive of its emergency clause, which failed of adoption, reads as follows:
“Section 1. All actions for damages for personal injury or death by wrongful act shall be brought in the county where the accident occurred which caused the injury or death or in the county where the person injured or lulled resided at the time of injury, and provided further that in all such actions service of summons may be had upon any party to such action, in addition to other methods now provided by law, by service of summons upon any agent who is a regular employee of such party, and on duty at the time of such service.
‘ ‘ Section 2. This act shall not repeal any provision for venue of actions except such as are inconsistent herewith and all laws and parts of laws in conflict herewith are repealed. ’ ’
This act is — as it professes to be — a venue statute, and localizes actions for personal injury by requiring that such actions shall be brought (a) in the county where the accident occurred which caused the injury or death, or (b) in the county where the person injured or killed resided at the time of the injury, and its interpretation, as applied to the issues here presented, is unaffected by act 21 of the Acts of the 1941 session of the General Assembly. This latter act provides that “In any action which may lawfully be brought only in some one or more particular counties in this state, and not in any county of the state in which service may be had on the defendant, so that the venue for such action is local and not transitory in nature, summons may be served upon the defendant or defendants in such action in any county in this state. ’ ’
Without reference to act 21 of 1941, act 314 of the Acts of 1939 confers jurisdiction upon the Crawford circuit court, in which county the injury was sustained, and in which the plaintiff resides, provided the injury was a personal injury. The question for decision is, therefore, whether the complaint alleges a personal injury within the meaning of act 314.
The insistence of the petitioner is that the clause, “where the accident occurred which caused the injury or death,” indicates a legislative intention to localize only those suits for traumatic injuries resulting from collisions, and that if not so construed the act would localize suits for false arrest, false imprisonment, malicious prosecution, alienation of affections, and other like causes of action. But- that clause is to be read and interpreted in connection with the remainder of the sentence of which it is a part, and, when so read, we find that the act provides that “All actions for damages for personal injury or death by wrongful act shall be brought . . ., etc. ’ ’ The act is not limited to traumatic injuries, but covers wrongful acts from which personal injury results.
The word “accident” has been defined in many cases, both of our own and of other jurisdictions. It was defined in the case of Standard Life & Accident Ins. Co. v. Schmaltz, 66 Ark. 588, 53 S. W. 49, 74 Am. St. Rep. 112, as meaning “happening by chance; unexpectedly taking place; not according to the usual course of things; or not as expected.” This is the dictionary meaning as defined in Webster’s New International Dictionary.
The word ‘ ‘ accident ’ ’ was not used in a metaphysical sense, but as commonly employed and usually understood, and in the act means the incident or the wrongful act which caused the injury. For a pure accident, not caused by negligence or wrongful act, there would be no liability.
The controlling question in the case appears, therefore, to be whether the complaint alleges that a personal injury was sustained. The complaint alleges “That by reason thereof (that is, drinking a portion of the contents of a bottle of Coca-Cola, which contained a bug or spider or other deleterious substance), the muscles, ligaments, nerves, tendons and other portions in and about her stomach and intestines have been seriously and permanently injured, . . .” These are personal injuries, and no better definition of a personal injury could be given than that it is an injury to the person.
The first paragraph in the opinion in the case of Coca-Cola Bottling Co. v. Adcox, 189 Ark. 610, 74 S. W. 2d 771, reads as follows: “This action was begum by appellee in the Jackson circuit court against the appellant, Coca-Cola Bottling Company, to recover for personal injuries caused by drinking a part of a bottle of Coca-Cola which contained foreign substances, alleged to be glass and hairs.”
In the case of Coca-Cola Bottling Co. v. McNeece, 191 Ark. 609, 87 S. W. 2d 38, the plaintiff recovered judgment to compensate the damages alleged to have been occasioned by drinking a bottle of. Coca-Cola in which there was a fly or other foreign substance. Reversal of the judgment was prayed upon the ground “that there was no actual physical injury brought about or proximately caused by the alleged occurrence, and hence any damages suffered would be unaccompanied by any physical injury attributable to or proximately caused by the incident complained of.” That contention was not sustained, and it was held that “There is ample evidence to show that the appellee suffered physical pain and in jury.” This injury was personal; it could have been nothing else.
It is to such injuries, that is, personal injuries, to which the act relates, and not such actions as malicious prosecution, etc., which are not ordinarily understood to be personal injuries.
In support of the contention that the complaint does not allege a personal injury three California cases are cited. .These are: Monk v. Ehret, 192 Cal. 186, 219 P. 452; Plum v. Newhart, 118 Cal. App. 73, 4 P. 2d 805; and Lucas v. Lucas Ranching Co., 18 Cal. App. 2d 453, 64 P. 2d 160.
It will suffice to review only one of these cases, this being the case of Monk v. Ehret, the only one of the three,eases decided by the Supreme Court of California. The plaintiff in that case alleged that he had been falsely imprisoned. There was involved the construction of a section of the Code of Civil Procedure of that state somewhat similar to our act 314. It was there said [192 Cal. 186, 219 P. 454]: “We are of the opinion that the words ‘injury to person’ are, by the language which follows in the Code section, limited to the wrongful or negligent act of another, and that it was not intended by said amendment to extend the right of place of trial to such a trespass as is described by the complaint in the instant case. The specific terms indicate that the injuries to person within the contemplation of the Legislature were those which cause physical injury or incapacity or which result in death.”
In the case of Destefano v. Alpha Lunch Co. (Mass.), 30 N. E. 2d 827, waitresses who received meals as part of their pay contracted trichinosis as a result of eating insufficiently cooked pork furnished by their employer, which was insured under the Workmen’s Compensation Act of that state; but as they made no reservation of common-law rights it was held that they could not maintain actions for breach of implied warranty of the fitness of the food. It was held that “What happened to the plaintiffs constituted a ‘personal injury’ within the Workmen’s Compensation Act. . . .,” and “Since the in jury was compensable under tbe Workmen’s Compensation Act, it will not support an action against the employer at law, whether in tort or in contract, or whether or not based upon a statute.”
In re Hurle’s case, 217 Mass. 223, 104 N. E. 336, L. R. A. 1916A, 279, Ann. Cas. 1915C, 919, the same court said: “At common law the incurring of a disease of harm to health is such a personal wrong as to warrant a recovery if the other elements of liability for tort are present. ’ ’
We conclude that the complaint alleges a personal injury, and as it alleges, not only that the injury occurred in Crawford county (this being the place of sale, which determines the place of injury. Jacobs v. State, 155 Ark. 95, 243 S. W. 952), but also that the plaintiff was a resident of that county at the time of her injury, (either of which allegations would confer jurisdiction), the Crawford circuit court has jurisdiction to hear the cause, and the application for prohibition will, therefore, be denied. | [
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McHaney, J.
Appellant, a minor 5 years of age, by her next friend, brought this action against appellees, the city of Little Rock, the Little Rock Municipal Water Works and its Commissioners, to recover damages for personal injuries she alleged she sustained through the negligence of the water works employees in leaving open and uncovered a water meter box located on the east side of Poster street in the city of Little Rock. Further negligence alleged was that appellees allowed “grass to grow over the hole which caused same to be hidden and could not be ascertained or seen by a person and that said meter box was placed almost directly in front of plaintiff’s house. ’ ’ The injuries were described and damages prayed in the sum of $15,500. In an amended and substituted complaint, it was alleged that the city is the owner and operator of the Little Rock Municipal Water Works, hereinafter called Water Works, and that under act 131 of 1933, it had the authority to purchase and operate the Water Works, and that by act 215 of 1937, it was provided that commissioners should be appointed to operate the Water Works; that the latter by its commissioners is engaged in the business of selling and distributing water to the citizens of the city and charges the consumer certain rates therefor, and, in doing so, it installs water mains and metal water boxes for meters to determine the amount consumed. The negligence, injuries and damages were alleged as in the original complaint.
To this complaint a demurrer was interposed on two grounds: 1, that the Water Works is not a legal entity nor do the commissioners thereof have the power under the law to sue or be sued as such, and that the court has no jurisdiction in this action; 2, that the city, which is the owner and operator- of the Water Works, cannot be sued in this action, as the operation of the Water Works by it is a governmental and public function, which cannot be hampered or interfered with by suits of this nature, nor is the city liable to respond in damages for the matters and things set forth in the complaint.
The court sustained the demurrer. Appellant de-. dined to plead further and elected to stand on her amended and substituted complaint, which was dismissed, and this appeal followed.
Appellant makes this concession: “It is conceded that if the state imposed upon the municipality a duty to carry out a function of the state, there is no question but that the municipality would be engaged in a governmental function and so would be immune from suit.” Section 1 of act 131 of 1933 provides: ‘ ‘ That any city or incorporated town in the state of Arkansas may purchase or construct a waterworks system or construct betterments and improvements to its waterworks system as in this act provided.” Appellant says that, because of the use of the word “may,” a distinction between a mandate and the extension of a. privilege should be made, and cites a 'Connecticut case to sustain the distinction. The act referred to conferred on municipalities the power to pur chase or construct a waterworks system. It did not require them to do so. If they exercised the power conferred, then said act provided for the operation thereof by the city as set out therein. Act 215 of 1937 permitted the operation of municipally owned water works by Boards of Commissioners and prescribed their powers and duties. So, it would appear that the distinction claimed does not in fact exist. The city is, therefore, engaged in a governmental function in the operation of the Water Works by its board of commissioners, and cannot be sued in this action under the concession made.
But without the concession, it has been held in many similar cases that the city in the operation of water works, electric light plants, sewer systems, etc., is engaged in a governmental function and that an action for damages, based on the negligence of its officers and agents, cannot be maintained. Browne v. Bentonville, 94 Ark. 80, 126 S. W. 93; Little Rock v. Holland, 184 Ark. 381, 42 S. W. 2d 383; Hope v. Dodson, 166 Ark. 236, 266 S. W. 68; North Little Rock Water Co. v. Waterworks Commission, of Little Rock, 199 Ark. 773, 136 S. W. 2d 194. In the last cited case it was said: “That the operation and maintenance of the water plant by Little Rock was a governmental function, and not a proprietary activity, was the point expressly decided in the case of Little Rock v. Holland, supra, and the case of Browne v. Bentonville, supra, is to the same effect.” See, also, Bourland v. City of Ft. Smith, 190 Ark. 289, 78 S. W. 2d 383; Ark. Utilities Co. v. City of Paragould, 200 Ark. 1051, 143 S. W. 2d 11; Ark. Valley Cooperative Rural Electric Co. v. Elkins, 200 Ark. 883, 141 S. W. 2d 538; and Thomas v. Town of Luxora, 201 Ark. 608, 146 S. W. 2d 692.
It necessarily follows that the judgment must be affirmed. | [
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Smith, J.
Herman Center died testate June 6,1939. His estate was administered upon and distributed, except that his widow claimed that her deceased husband owned an undivided one-third interest in a liquor business in the city of Siloam Springs, operated in the names of the testator’s son and stepson, which the executor had not listed with the assets of the estate, and the widow brought suit to recover her interest in this business.
The testator had a son named LeRoy Branton Center, and he had married a widow who had a son named J. W. Gose. Center had no children by his surviving widow. Both these boys were reared by Mr. Center, and were regarded by him as his sons. They decided to engage in the liquor business, but had only a thousand dol lars between them, which was insufficient to launch the enterprise. They proposed to their father that a partnership be formed, each to have a third interest. Mr. Center declined the proposal, but he did advance his sons the sum of $1,200. The widow contended that this was not a mere loan, but was a contribution of her husband to the partnership enterprise, which was intended to make, and did make, Mr. Center an equal partner, owning a one-third interest.
To sustain this contention a number of persons testified as to statements made by Mr. Center showing that he was interested in the business. This was hearsay testimony, and it was not shown that Mr. Center asserted ownership of a one-third interest in the business in the presence of either of his sons. Strickland v. Strickland, 103 Ark. 183, 146 S. W. 501; Waldroop v. Ruddell, 96 Ark. 171, 131 S. W. 670; Beichslich v. Beichslich, 177 Ark. 47, 5 S. W. 2d 739; Mushrush v. Downing, 181 Ark. 85, 24 S. W. 2d 972.
Mr. Center did, however, have an interest in the business, and the sons explained that interest. The explanation was that their father declined to become a partner, but did make a $1,200 loan with the understanding that so long as the loan remained unpaid he should receive one-third of the profits, but that he assumed no responsibility for the partnership, and might retire when he pleased, whereupon the loan should be repaid.
The business was very profitable, and Mr. Center shared equally with his sons in the profits, and was paid as profits a much larger sum that he had advanced. Mr. Center’s health failed, and his sons testified that their father decided that he would sever his connection Avith the business, and this retirement was accomplished by the execution of the following written instrument:
“Contract of Sale.
“Memoranda of an agreement, made and entered into this 3d day of January, 1939, by and between I, H. Center of Siloam Springs, Arkansas, being in poor health and not being able to assist or engage in any active business and being desirous of winding up my business and other affairs; and having invested about $1,200 in the Kentucky and Silver Dollar Liquor Stores, located at St. Nichlos Avenue, in Siloam Springs, Arkansas, to assist my son Branton Center and J. W. Gose, my stepson, both of whom I raised, to engage in said business and from which I have received about $12,000, having been able to assist them and not now being able to do so, and to wind up my affairs as I would like, I, for and in consideration of the sum of $1,200 payment by promissory note and other considerations; that is they being my son and stepson, I hereby sell, quitclaim and deliver up to them all my right, title and interest in both the Kentucky and Silver Dollar Liquor Stores as described above, which shall and does include all furniture, fixtures, stock of merchandise, moneys and accounts now as of January 1, 1939, belonging to the partial partnership of Center, Center & Gose to my son Branton Center and my stepson J. W. Gose.
“And it is further agreed that we, Branton Center and J. W. Gose, hereby purchase the interest of the said H. Center and all his right, title and interest in the furniture, fixtures, stock of merchandise, moneys and accounts of the partnership of Center, Center & Gose, owners of the Kentucky and Silver Dollar Liquor Stores located on St. Nichlos Avenue, in the city of Siloam Springs, Arkansas, upon the conditions as above set forth.
“Witness our hands and seals in triplicate this 3d day of January, 1939.
“(Signed) H. Center,
Party of the First Part. (Signed) Branton Center,
(Signed) J. W. Gose,
Parties of the Second Part.
“Witnesses to signatures of the signing and signatures of H. Center, party of the first part, and Branton Center and J. W. Gose, parties of the second part.
“(Signed) Glenn Williams, (Signed) R, W. Egy.”
The complaint of Center’s widow was dismissed as being without equity, and from that decree is this appeal.
The large record presents only the question of fact whether Mr. Center was a partner, and, if so, whether he had retired from the partnership.
The paper writing above exhibited appears to be conclusive of this question of fact. It is contended, however, that the signature of Mr. Center was forged, and that, if not so, he did not have mental capacity to make the contract.
There appears but little testimony to support the contention that Mr. Center lacked mental capacity to make a valid contract. He did have a stroke, following which his health was very poor, but the contract was executed before the stroke.
Much and very conflicting testimony was offered as to the genuineness of Mr. Center’s signature, and the usual conflict appears in the testimony of witnesses testifying as experts. It would serve no useful purpose to review these conflicts. The attesting witnesses tipped the balance in favor of the finding made by the court below. Unless the crimes both of forgery and of perjury have been committed, Mr. Center signed the contract, and we do not find that either of these offenses was committed. The testimony shows that the consideration inducing the contract was paid.
Being unable to say that the finding of the court below is contrary to the preponderance of the testimony, the decree must be affirmed, and it is so ordered. | [
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Griffin Smith, C. J.
In September, 1939, A. D. Reddick as father and next friend sued in Prentiss county, Mississippi, for personal injuries alleged to have been sustained by his minor daughter, Zelmetta, through negligence chargeable to Standard Oil Company of Louisiana, a corporation. Service was procured through garnishment. '
The injuries complained of were inflicted in December, 1938, at Mounds, Arkansas. Zelmetta, then as now, resided with her father, a citizen of Greene county.
Soon after suit was filed in Mississippi- the defendant procured a temporary order from the Greene chancery court restraining A. D. Reddick -and Zelmetta from prosecuting the action. There was transfer of the cause to United.States district court for the eastern division of the northern district of Mississippi. The defendant filed a plea in abatement, to which was attached an exemplified copy of the restraining- order. Through, comity the federal court stayed further proceedings.
In December, 1940, the chancellor denied a permanent injunction. This appeal is from such order.
In support of the prayer for injunctive relief the defendant alleged that the suit was brought in Mississippi for the purpose of evading domestic laws; that if compelled to defend in a foreign jurisdiction it will be deprived of rights guaranteed by the constitution of Arkansas and by the Fourteenth Amendment to the federal constitution; that irreparable injury will be occasioned the defendant by compelling it to answer in Mississippi.
Specifically, it is alleged that under the laws of Arkansas applicable to personal injury actions such as the minor here complains of, the plaintiff would be required, on motion of the defendant prior to trial, and as a matter of legal right, to submit to physical examination by a physician designated by the court, and that such right does-not exist in Mississippi. Also, that by % 5159 of Pope’s Digest of the statutes of Arkansas, if two or more physicians or nurses are or have been in attendance on the patient, administering* for the same injury or illness, the patient in waiving his or her rights as to one of the nurses or physicians in respect of privileged communications shall be deemed to have waived the privilege as to others. Such waiver, it is argued, does not -exist under the laws of Mississippi.
It is further insisted that if the defendant is forced to trial in Mississippi, it will be burdened with excessive and unnecessary expense because all necessary de-' fense witnesses reside in Greene and Clay counties, Arkansas, and cannot be compelled to appear or testify in person in Mississippi, and none of the plaintiff’s agents or servants who might be required as witnesses resides in Mississippi.
Appellees concede that in certain circumstances one asserting a cause of action may be restrained from apply ing for relief in a foreign jurisdiction. But, they say, in order to justify injunction, it must be clearly shown that prosecution of the action elsewhere would be “inequitable, unfair, and unjust.” See American Jurisprudence, “Injunction,” v. 28, § 210. As this court said in Pickett v. Ferguson, 45 Ark. 177, 55 Am. Rep. 545, the jurisdiction of equity is established by the clear weight of authority, “as well as by the necessity of interposition under special circumstances where the foreign suit appears to be ill-calculated to answer the ends of justice. ’ ’
Operation of the injunction is not upon the foreign court, but upon the person of the plaintiff.
In Greer v. Cook, 88 Ark. 93, 113 S. W. 1009, 16 Ann. Cas. 671, authority of chancery courts to enjoin a citizen of Arkansas from suing other residents of this state in a foreign jurisdiction was upheld, the court’s purpose in that case being to prevent evasion of exemption and other laws of this state.
Prof. Robert A. Leñar, in his excellent work on Conflict of Laws, § 82, pp. 194-5, says: ‘ ‘ Generally speaking, causes of action for tort are transitory, that is, can be sued upon anywhere that service is had on the defendant tortfeasor. The Arkansas courts have regularly and frequently entertained actions upon, many kinds of extrastate torts, including both those which were actionable at common law and those which have become actionable only by operation of statutes, such as the death acts, though of course they always insist upon the existence of a valid cause of action by the law of the place of the tort. The state whose law creates a cause of action in-fact cannot prevent other states from entertaining actions upon it, even by providing that no such action shall be maintainable elsewhere. ’ ’
Prof. Leflar’s statement refers to jurisdiction, or power of a court, to entertain a transitory cause of action, which, of course, may be done even though the plaintiff has been enjoined. The fact that such plaintiff might be in contempt of the enjoining court is not a matter the foreign authority would be compelled to recognize, even though as a matter of comity it might do so.
In Tennessee Coal, Iron & Railroad Company v. George, 233 U. S. 354, 34 S. Ct. 587, 58 L. Ed. 997, L. R. A. 1916D, 685, a headnote is: “The statute of Alabama making the master liable to the employe for defective machinery created a transitory cause of action which can be sued on in another state having jurisdiction of the parties, notwithstanding the statute provides that all actions must be brought thereunder in the courts of Alabama and not elsewhere. ’ ’
The rule adopted by most courts is that injunctive relief will not be granted a defendant merely because the rules of evidence of a foreign state, or the state’s procedure, differ from those of the state in which the cause of action arose. Appellant concedes it has found no Arkansas case directly in point. Ruling Case Law, v. 14, §§ 113-117, is cited. Attention is also directed to Cole v. Cunningham, 133 U. S. 107, 10 S. Ct. 269, 33 L. Ed. 538, where Mr. Justice Fuluer quoted from Story’s Equity Jurisprudence, §§ 899, 900.
In Phelps v. McDonald, 99 U. S. 298, 25 L. Ed. 473, Mr. Justice Swayne said: “Where the necessary parties are before a court of equity, it is immaterial that the res of the controversy, whether it be real or personal property, is beyond the territorial jurisdiction of the tribunal. It has the power to compel the defendant to do all things necessary, according to the lex loci rei sitae, which he could do voluntarily, to give full effect to the decree against him. Without regard to the situation of the subject-matter, such courts consider the equities between the parties, and decree in personam according to those equities, and enforce obedience to their decrees by process in personam.”
The precedent has not been' established in this state to enjoin a citizen from bringing a tort action in the court of a foreign state. In effect, in the instant case, the citizen merely seeks to enforce in the foreign state a cause of action given by Arkansas law. That some inconvenience will be occasioned the defendant in procuring witnesses, and that rules of evidence and procedure differ, are not sufficient to justify this court in saying that the transaction is so grossly inequitable as to call for judicial restraint ag’ainst tbe person of the plaintiff.
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Humphreys, J.
Paving Improvement District No. 13, Rogers, Arkansas, was formed in the year 1927, and 'benefits were assessed on account of the improvement against each parcel of property embraced within the district. In assessing the benefits against certain property belonging to J. E. Felker it was described as the. north half, block 12, Duckworth’s Addition to Rogers, Arkansas, and the total benefits assessed against it amounted to $1,400 under that description. That description was carried on the books of the district until and through the year 1931. In the year 1931, through a clerical mistake in transposing the descriptions of the property to another book the description was changed to read the north half of lots 1 and 2 in block 12, Duckworth’s Addition to Rogers, Arkansas, and was then carried on the books of the district until December 28, 1937, under the latter description at which time the commissioners of the district, by written instructions to the collector of the district, had the description changed to read the north 198 feet of block 12, Duckworth’s Addition to Rogers, Arkansas. . Appellant paid the taxes assessed against his property under the description of the north half, block 12, Duckworth’s Addition to Rogers, Arkansas, as long as it was carried on the district’s books under that description and then paid one year’s taxes assessed against his property after the description was changed on the books of the district through clerical error to the north half of lots 1 and 2, block 12, Duckworth’s Addition to Rogers, Arkansas, and he neglected to pay the annual assessments thereafter and failed to pay any assessments extended against the property for the years 1933 to 1940, inclusive. On the first day of April, 1937, appellant filed a protest with the mayor and city council of the city of Rogers to reduce his assessment. His letter is as follows:
“To the Mayor, Hon. E. W. Vinson, and the City Council of the City of Rogers, Benton county, Arkansas:
“Comes J. E. Felker and files this his petition as to assessment of benefits against his property in the above mentioned district, hereinafter described, and petitions your Honorable Body to adequately reduce same; petitioner ’s being described as follows:
“North one-half of block 12 in Duckworth’s Addition to the town of Rogers.
“Your petitioner represents, under the purported reassessment on said property as returned by the assessors for 1937, the assessment is $1,400, which is now on file with the recorder of the city of Rogers; that the same is not equally and ratably assessed as other property in the district, but that same is much higher in assessment than the other property in the district.
“This 1st day of April, 1937.
“J. E. Felker,
“By Duty & Duty,
“His attorneys.”
In this letter he describes the property owned by him as the north half of block 12 in Duckworth’s Addition to Rogers, Arkansas. The assessment seems not to have been reduced on his application. At this time he had not discovered that his property through clerical error had been described as the north half of lots 1 and 2 in block 12, Duckworth’s Addition to the town of Rogers, Arkansas, instead of the north half of block 12 in Duckworth’s Addition to the town of Rogers, Arkansas, as it was described in the original formation of the district.
The deed which Felker received from a man by the name of Bailey to the property dated the 6th day of March, 1909, described the property as beginning 16 feet west from the northeast corner of block 12, Duck-worth’s Addition to the town of Rogers, Arkansas, and running thence west 236 feet; thence south 198 feet; thence east 236 feet; thence north 198 feet to the place of beginning.
■ The board of commissioners of Paving District No. 13 of Rogers, Arkansas, filed this suit in the Benton chancery court, December 11, 1937, to collect past due taxes- which had been annually assessed and levied against certain real estate within the district owned by different property owners, which included real estate owned by the appellant, J. E. Felker, and to have a lien declared against the real estate and foreclosure of the lien in the amount of the taxes past due together with a penalty and interest and a sale of the property.
On May 2, 1940, appellee filed an amendment to the complaint setting out the facts that the betterment assessment for benefits when the district was organized was against the north half of block 12 in Duckworth’s Addition to the tovra of Rogers, Arkansas, and that this description was used from the year 1927 to the year 1931, inclusive, and that thereafter until the year 1937 it was carried on the books through clerical error as the north half of lots 1 and 2 in block 12, Duckworth’s Addition to Rogers, Arkansas, at which time the commissioners inspected appellant’s deed and found that the property was described by metes and bounds therein and directed the collector of the district to change the description so as to read the north 198 feet of block 12, Duckworth’s Addition to Rogers, Arkansas.
Appellee alleged further that each year the assessors actually assessed the real estate either as the north half of block 12 or the north 198 feet of block 12 and asked the court to reform the record made by the scrivener through inadvertence in describing it as the north half of lots 1 and 2, Duckworth’s Addition so as to describe it either as the north half of block 12 or the north 198 feet of block 12 in Duckworth’s Addition to the city of Rogers, Arkansas, and to decree a lien thereon for the delinquent taxes in the total sum of $740.60.
Appellant filed an answer to the complaint and amended complaint admitting that he was the owner of the north 198 feet of block 12 in Duckworth’s Addition to the city of Rogers, Arkansas, and against which a judgment and lien for delinquent taxes is sought, and that he ovmed same at the time of the formation of the district, but denied that same was correctly described so that assessments of benefits against same created a lien thereon, and also denied that the court had jurisdiction to correct the description and alleged that the assessed benefits against the property were unfair, inequitable, illegal, discriminatory and confiscatory.
The cause was submitted to the court upon the pleadings and testimony introduced by the parties covering every step taken from the formation and creation of the district down to the time of the submission of this case with the result that the court found that appellant owned the north 198 feet of block 12 in Duckworth’s Addition to the city of Rogers, Arkansas; that this description was substantially the same description as the north half of block 12 in Duckworth’s Addition to the city of Rogers, Arkansas, and that the assessment of benefits were made against the same piece of property and the apportionment of benefits was extended each year against the same property; that from and after the year 1932 to and including the year 1937 it was carried on the books of the district under the description of the north half of lots 1 and 2 in block 12 of Duckworth’s Addition to the city of Rogers, Arkansas, through the mistake and inadvertence of an employed scrivener in transferring the property from one book to another, and that after the year 1937, it was carried on the book under the description of the north 198 feet of block 12 of said addition by direction of the board of commissioners.
Based upon the finding aforesaid the court decreed a reformation of the error made by the scrivener in carrying forward the description on the district assessment records for the years 1932 to 1937, inclusive, so as to have the description read the north 198 feet of block 12 in Duckworth’s Addition to the city of Rogers, Arkansas, and declared a lien for the delinquent taxes for the years 1933 to 1940, inclusive, in the total sum of $740.60 against the north 198 feet of block 12, Duckworth’s Addition to the city of Rogers, Arkansas, and decreed a foreclosure of the lien, from which findings and decree an appeal has been duly prosecuted to this court.
As we understand this record the north half of block 12 in Duckworth’s Addition to the city of Rogers, Arkansas, was included -within the boundary lines of Felker’s deed from Bailey so when the district was formed Felker owned the north half of block 12 in said addition as well as a harrow additional strip running east and west across the block. Benefits were assessed against the north half of block 12 in said addition in the total sum of $1,400. This benefit assessment was appor tioned over a long period of time, only a certain per cent, thereof being payable each year. These were the only benefits ever assessed against the north half of block 12 of said addition. No benefits were assessed against the additional narrow strip of land embraced in the boundaries of Felker’s deed. Just why they were not assessed against the strip of land also does not appear from the record.
Appellant contends that the assessment of benefits was void because they were laid upon land by an indefinite and uncertain description and he cites in support of his contention § 916 of Sloan on Improvement Districts, which is as follows: “A description of the land assessed is an essential part of the assessment record, especially when the assessment is made in rem and not in personam.”
We agree that in assessing benefits to land in improvement districts the assessments are made against the lands and not against the owner thereof.' That being the case the description is essential and must be a correct description. The description must be such as “will fully apprise the owner without recourse to his superior knowledge peculiar to him as owner; that the particular tract of land is sought to be charged with a tax lien. It must be such as will notify the public what lands are to be offered for sale in ease the tax be not paid.” Brinkley v. Halliburton, 129 Ark. 334, 196 S. W. 118, 1 A. L. R. 1225; Buckner v. Sugg, 79 Ark. 442, 96 S. W. 184. Other cases might be cited to the same effect, but it is unnecessary as the courts are unanimous in the opinion that no lien is created by reason of an assessment of taxes against property unless the description is accurate and correct on the assessment books. The reason of course is that the proceeding is one in rem against the land and not in personam, against the owner thereof.
We differ from appellant when he contends that the north half of block 12 in Duckworth’s Addition to the city of Eogers, Arkansas, is not a definite, certain and accurate description. On the contrary, it is such a correct and certain description as will notify the public what land will he sold or offered for sale in case the tax will not he paid.
From the description employed in making the assessment, Mr. Felker conld not help hut know and he did know what land benefits were assessed -against. He paid the improvement taxes under the assessment against the north half of block 12 in Duckworth’s Addition to the city of Rogers, Arkansas, for four years and also paid an additional year’s taxes after the scrivener through inadvertence in transferring the particular piece of property as the north half of lots 1 and 2 in block 12 in Duckworth’s Addition to the city of Rogers, Arkansas. And in 1937, when he complained to the city council that benefits assessed were out of proportion to benefits assessed against the property of others near his property, he described his property as the north half of block 12 in Duckworth’s Addition to the city of Rogers, Arkansas.
There was only one assessment of benefits against his property which property was described correctly, accurately and certainly as being the north half of block 12 in Duckworth’s Addition to the city of Rogers, Arkansas.
He never appealed from the benefits assessed against the property under the description of the north half of block 12 in Duckworth’s Addition to the city of Rogers, Arkansas, within the time allowed by statute, although he now answers as a reason why he should not pay the delinquent assessment taxes that the assessment benefits against the land were unfair, inequitable, illegal, discriminatory and confiscatory. The property has never been sold or offered for sale for delinquent taxes until this suit was brought and appellant can not at this late date collaterally attack the assessment of benefits against his lands under a correct and accurate description.
This court said in the case of Osborn, et al. v. Board of Improvement of Paving Improvement Dist. No. 5 of the City of Fort Smith, 94 Ark. 563, 128 S. W. 357, that: “The questions of the. benefit to particular property to be derived from a particular improvement, and the correctness of the assessments levied thereon, are concluded, except for fraud or demonstrable mistake, by the action of the city council in establishing the district and of the assessor in assessing each piece of property, unless set aside in a proceeding instituted within thirty days after publication of the ordinance levying the assessments.”
No fraud is alleged and none proved. No demonstrable mistake was made in making the assessment for benefits against the property in 1927 when the district was formed.. On this collateral attack the only defense appellant could possibly make to the payment of delinquent taxes is that fraud was practiced or that a demonstrable mistake was made, neither of which appears.
No question is made as to the amount due against the land. The only material question in the case is whether the property was definitely and specifically described against which a lien was declared by the assessors for benefits to the particular property, and we find in this record that there was a definite, certain and correct description of the property at the time the lien was declared thereon.
The error the court made in this case was to declare a lien for the amount of delinquent taxes due against the north 198 feet of block 12 in Duckworth’s Addition to the city of Rogers, Arkansas, instead of declaring the lien on the particular land described which particular and correct description was the north half of block 12 in Duckworth’s Addition to the city of Rogers, Arkansas.
We see no reason why the court could not reform the descriptions which were carried on the books erroneously through the inadvertence and mistake of the scrivener in transferring* the descriptions to another book.
On account of the error indicated in declaring the lien upon the north 198 feet in block 12 in Duckworth’s Addition to the city of Rogers, Arkansas, instead of declaring the lien against the north half of block 12 in Duckworth’s Addition to the city of Rogers, Arkansas, the decree is reversed and remanded with directions to declare the lien for delinquent taxes due against the north half of block 12 in Duckworth’s Addition to Rogers, Arkansas, and to foreclose same, unless paid within sixty days, against the north half of said block.
Smith and McHaney, JJ., dissent. | [
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Humphreys, j.
On June the 11th, 1927, appellant and appellee inter-married at Fort Smith, Arkansas, and a boy child was born to them who is nine and one-half years old. Appellant is thirty-si'x and his wife thirty-four years of age. Appellant has a dental practice which nets him $1,800 to $2,000 per annum. Appellee is also an earner, being a music teacher. They own a home jointly and together resided therein, with the child, until the 25th day of April, 1940, when appellee, without cause, removed' the household goods to' a cottage which she rented on Belle avenue in said city in which she took up her abode taking their child with her.
Appellant brought suit in the chancery court of Sebastian county on May 2, 1940, against appellee to obtain the custody of the child, alleging that it is to the best interest of the child that the care, custody and control of it be awarded to appellant with reasonable rights of visitation in appellee.
Appellee filed an answer denying that it is to the best interest of the child that its custody be awarded to appellant during the period of its tender years and praying that appellant be required to make contributions to her for its support and maintenance. No prayer for her support was requested in her answer..
On the 5th day of November, 1940, the cause was submitted to the court upon the sole issues of which should have the custody of the child, and in the event it was awarded to appellee, what amount appellant should be required to contribute to its support. Evidence was introduced pro and con responsive to these issues which resulted in a decree awarding its custody to appellee and an allowance of $30 a month from appellant for its support and maintenance, from which is this appeal.
So far as the record reflects appellee abandoned appellant without cause and took the child with her and refuses to return to their home with the child or to surrender its custody to appellant.
Appellee did not testify as to her reasons for leaving the joint home, and appellant testified that she had no cause for leaving.
Each introduced testimony showing a good moral character, love for and devotion to the child.
There is no evidence in the record tending to show that either had ever neglected the child or failed to perform his or her whole duty to it. On the contrary, appellant had been a good father and appellee a good mother and, judging from the past, the welfare of the child is safe and will be preserved in the custody of either. Each is physically able and otherwise capable of rearing the child. Each is intelligent, and both are earners.
The love that led them to the marriage altar and moved them to vow most solemnly that they would cling to each other forever is now paralyzed or dead, and this record is as silent as a tomb as to which is at fault.
A few days before the suit was instituted for the custody of the child the golden cord of love had been broken and, sad to say, they were living in' separate homes. As a result of the separation they have surrendered their privilege of joint parents to rear and educate their child in a happy home to the direction of the courts in separate homes, seemingly without any thought of the unhappiness, humiliation, embarrassment and misery in store for their child. Courts, however, cannot compel parents to regard their marriage vows and live together, so the duty is imposed upon courts to grant divorces upon certain grounds and to award the custody of children to one or the other by statutory law in this state.
Our statute on the subject is § 6205 of Pope’s Digest which is as follows: “Where the husband and wife are living apart, there may be an adjudication of the court as to their power, rights and duties with respect to the persons and property or their unmarried minor children. In such cases there shall be no preference between the husband and wife, but the welfare of the child must be considered first in determining the custody of such child, or the control of its property. Pending such adjudication the court may award the custody of the child and the control of its property to the father, or the mother as may be to the best interest of all concerned, regarding the interest of the child as of the first importance.”
There is nothing in this case from which it can definitely be said that it is to the best interest of the child for the mother to have custody of it, save and except the humanitarian rule which has most generally been adopted by the courts that during the period of tender years the child should be left in the care of the mother. The trial court who heard the testimony was of the opinion that the mother, appellee, should have the custody of it and that the father, appellant, should contribute $30 a month towards its support, and we agree with him because the child is now only nine and one-half years of age or within the period of tender years. During the period of tender years it is to the best interest of the child for the mother to have it.
In agreeing with the trial court, we are not placing our stamp of approval on the right of either spouse in any case to walk out of the house without cause and take the children with him or her.
No error appearing, the decree is affirmed. | [
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Mehaeey, J.
The appellant, Harry Meyer, on April 18, 1940, filed a petition for additional and further construction of the will of S. Meyer, deceased, in Garland chancery court. The original petition mentioned in the petition in this case was filed on November 30, 1937.
A decree was entered by the chancery court in favor of the executor, and among other things stated in the decree, that the plaintiff, as trustee, shall continue with the distribution of said income payments therefrom. The court had already decided that the $18,500 involved here was a part of the trust -estate and should be distributed in accordance with the directions of the will.
The appellant here prosecuted an appeal in the former case to this court, and the decree of the chancellor was affirmed. The opinion in the former appeal is Meyer v. Eichenbaum, Executor, 197 Ark. 650, 124 S. W. 2d 830.
When the petition was filed in the instant case, demurrers were filed; the court sustained the demurrers, and Meyer prosecuted this appeal.
The plaintiff filed as exhibits to his petition a copy of the will of S. Meyer, deceased, and the decree of the Garland chancery court in the original case, the case which was appealed to this court and affirmed in 197 Ark. 650, 124 S. W. 2d 830.
It was contended in the former case by the appellant that the word “proceeds” must be taken to mean the entire amount of the notes executed as evidence of the money loaned. The appellee contended that it was the intention of the testator to create a trust estate, and that his wife would be supported by the income or proceeds during her lifetime, and upon her death the proceeds or income from this loan should be divided according to the provisions of the will, in which appellant would receive 50 per cent. ’ .
The appellant contended that when the $18,500 loan was paid, he should receive 50 per cent, of it. The appellee contended that it belonged to the trust estate and he should receive the income or interest.
In the instant case the same question is involved. It is here contended by appellant that under the provisions of the will such part of the trust estate, consisting of the loan of $18,500, was to be divided and the appellant was to receive 50 per cent, thereof, and that said trust ends and terminates at the time the said loan falls due and payable.
We think that the judgment of the court in the first case is conclusive of the rights of the parties in this case. 15 B. C. L., § 429, p. 949, gives the following statement of the doctrine of res judicata: “The doctrine of res judicata is a principle of universal jurisprudence forming part of the legal systems of all civilized nations. It may be said to inhere in them all as an obvious rule of expediency and justice. 'Briefly stated, this doctrine is that an existing final judgment or decree rendered upon the merits,' and without fraud or collusion, by a, court of competent jurisdiction, upon a matter within its jurisdiction, is-conclusive of the rights of the parties or their privies, in all other actions or suits in the same or any other judicial tribunal of concurrent jurisdiction, on the points and matters in issue in the first suit.”
The two main rules of the doctrine of res judicata are stated in 34 C. J. 743, as follows: “(1) The judgment or decree of a court of competent jurisdiction upon the merits concludes the parties and privies to the liti gation and constitutes a bar to a new action or suit involving the same cause of action either before the same or any other tribunal. (2) Any right, fact, or matter in issue, and directly adjudicated upon, or necessarily involved in, the determination of an action before a competent court in which a judgment or decree is rendered upon the merits is conclusively settled by the judgment therein and cannot again be litigated between the parties and privies whether the claim or demand, purpose, or subject-matter of the two suits is the same or not. ’ ’
The chancery court is a court of competent jurisdiction. The judgment there was upon the merits, and the parties are the same in the instant suit as in the original suit. The matter argued here was an issue and directly adjudicated upon and was necessarily involved in the determination in the chancery court in the former case. Under all the authorities, where the judgment is upon the merits, the parties the same, the subject-matter the same, and the issue the same, the former judgment constitutes a bar to a new action.
For a discussion of the doctrine of res judicata see McCarroll, Commissioner of Revenues v. Farrar, 199 Ark. 320, 134 S. W. 2d 561. Also, see Gates v. Mortgage Loan & Ins. Agency, Inc., 200 Ark. 276, 139 S. W. 2d 19.
The parties being the same and the subject-matter being the same, the decree of the chancery court in the original case affirmed by this court in 197 Ark. 650, 124 S. W. 2d 830, is conclusive.
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Griffin Smith, C. J.
Certain lands in Miller county were federal gwernment grants to St. Louis, Iron Mountain & Southern Railway Company. The Iron Mountain Company’s rights were acquired by Missouri Pacific Railroad Company. In 1892 and 1893, however, the Iron Mountain Company made certain conveyances, reserving “all coal and mineral deposits.”
Appellees, as fee-simple owners, seek to cancel the reservations and to quiet in themselves title to oil and gas. Their contentions are that when the reservations were written into the deeds it was not intended by the term ‘ ‘ all coal and mineral deposits” to include gas and oil.
The chancellor sustained contentions of the plaintiffs. The question here is one of construction, or intent.
The government grant to Iron Mountain Company reserved “all mineral lands within the limits of the grant made in § 2 [of the Act of Congress in question].”
An agreed statement covers all facts considered by the chancellor. Essentials are as follows:
F. E. Bates, Missouri Pacific chief engineer, made an examination of office files, and found that the land in question was originally conveyed to Big Wood Lumber Company. In 1892 and 1893, when the deeds were delivered, counsel for Iron Mountain were not certain what construction should be placed on the government’s reservations. It was feared by the attorneys that, after the patents had been issued, the government might undertake to reclaim minerals, and “at least one of the reasons for reservations [in Iron Mountain deeds] was this fear . . . that if a fee-simple absolute title were conveyed by the railroad company and the government should subsequently reclaim any minerals within said lands under the provisions of [Act of Congress of 1866, 14 Stat. 1, 338], the railroad would be required to respond to the purchasers of the land for damages under its warranties. ’ ’
The engineer’s statement was predicated upon various letters in the railroad company’s files — letters evidencing* correspondence between the company proper, and officers of Missouri Pacific Land Grant Land Depart ment. May 9, 1887, attorneys for Iron Mountain wrote the Iron Mountain land commissioner that it was the opinion of Judge Portis, as well as that of Judge Pike, that the act reserving mineral lands from grants to railroad companies was binding upon the company, “and for that reason, whenever land is sold, it is sold with the reservation attached. ’ ’
In 1898 certain government granted lands were conveyed, the railroad company reserving “all coal and mineral deposits.” Thereafter a wheatstone company undertook to purchase the mineral rights so reserved by the railroad company. In a letter written by the company’s general attorney in 1899, addressed to the company’s land commissioner, it was recommended that the conveyance be in exact terms of the reservation, and by special warranty deed. It was said: “The reason I advise a special warranty is that some question may possibly arise as to your having anything to'convey under the mining reservations of the United States. I therefore would not by general warranty convey the ‘mineral deposits’ of any land. ’ ’
The agreed statement commits the parties to the proposition that the phrase “coal and mineral deposits” was used in the deeds to make the reservation as broad as any possible reservations of the government under the federal statutes.
The entry on coal lands was under act of March 3, 1873, 17 Stat. L. 607, and for this reason the department of the interior in its circulars and letters usually referred to coal lands as not included in the general classification of “mineral lands.” In 1883 Commissioner McFarland of the interior department ruled that while coal lands, in the general sense of the word, are minerals, they had not been held subject to entry under the mining laws, “but have always, since a date long prior to passage of the mining act of 1866, been disposed .of under special statutes at private cash entry. Said entries are not mineral entries, and have never been so designated in this office.”
The -agreed statement mentions that between June and December, 1890, First Assistant -Secretary Chandler, in writing to the commissioner of the general land office, stated that certain lands were not shown to be, “as a present fact, valuable for coal or other minerals.”
A letter from the interior department, written in 1890, made comment that the act of 1864, which amended an act of 1862, ‘ ‘ enlarged the grant from five to ten sections per mile on each side of said road, and provided, among other things, that the term ‘mineral lands’ wheréver used therein, or in the original act, should not be construed to include coal and iron lands; that no lands granted by the act of 1864 or the original act should include any mineral lands. ’ ’
It was the view of Engineer Bates that the phrase “coal and mineral deposits” was a common expression in various documents of the interior department and in files of the Iron Mountain land department at Little Rock.
On the question of intent as to the reservations, the history of oil and gas discovery is reviewed by O. W. Rapp, U. S. land commissioner, as shown in the footnote.
In Arkansas exploratory work seems to have been done as early as 1888, according to reports made by State Geologist John C. Branner, In respect of that period, Branner mentions the occurrence of oil and gas in the vicinity of Fayetteville. His summary was that many people had been led to believe that “something substantial might be realized from it. ’ ’ His comments are shown in the margin.
Appellant quotes certain data to show that congress, in 1886, may have liad in mind the possibility of oil in Arkansas when the land grant act was passed. In a second report entitled, “Geological Eeconnoissance of Arkansas,” David Dale Owen, in'1860, discusses discoveries in Pennsylvania. Regarding Arkansas geology he made the observations shown in the fourth footnote.* **
Union Coal Company, of Ouachita county, was (in 1860) erecting a plant for distillation of oil from lignite.
In further substantiation of its contention that oil was recognized as a possibility when the land grants were executed, appellant quotes from communications by Secretary Lamar, dated in 1885 and 1886. ,
■Beginning in 1932 mineral rights to the lands here involved were separately assessed under authority of act 221, approved March 27,1929.* *****7 It is argued by appellees, however, that for 35 years appellant and its predecessor failed to make separate assessments, and that by conduct it permitted those who acquired the lands either originally, through inheritance, by mesne conveyances, or by purchase of tax titles, to assume that no claim would ever be advanced for subterranean products not looked upon as minerals at the time conveyances were executed. Insistence is that it would be inequitable, at this late period, for the railroad company to recover under the reservations when, by admissions of its own officials, the primary purpose in excluding “coal and mineral deposits” from the conveyances was to protect itself from liability in the event it should be determined that “all mineral lands within the limits of the grants made” were reserved by the government in the sense that any product finally classified as mineral would come within the general classification.
If the reservations had been made at a time when oil and gas production, or explorations, were general, and legal or commercial usage had assumed them to be within the term “minerals,” certainly appellant should prevail. As early as 1911 gas was referred to in this state as a mineral. Osborn v. Arkansas Territorial Oil & Gas Company, 103 Ark. 175, 146 S. W. 122. See, also, Bodcaw Lumber Company v. Goode, 160 Ark. 48, 254 S. W. 345, 29 A. L. R. 578, where Euling Case Law, and Thornton on the Law Eelating to Oil and Gas, are quoted.
Our attention is directed to Belleville Land & Lumber Co. v. Griffith, 177 Ark. 170, 6 S. W. 2d 36. After identifying the reservation considered in that case as similar to that contested in the instant case, appellants argue that since such reservation was upheld in the Griffith Case it should be upheld in the ease at bar. The difference is that in the Griffith Case oil and gas were not the subjects of controversy. In the opinion there is also this language: ‘ ‘ The mineral rights were not thought of by either party, and there is no evidence in the case tending to show that the mineral rights on the land in controversy are valuable. ’ ’ The chancellor allowed a reduction of $1 per acre from the purchase price as offset against value of the minerals. There was no appeal from this allowance.
If appellant were otherwise entitled to a reversal, such right would not be affected by adverse possession. Grayson-McLeod Lumber Co. v. Duke, 160 Ark. 76, 254 S. W. 350; nor are mineral rights underlying a tract of land lost on failure to pay taxes thereon unless there has been a separate assessment. Claybrook v. Barnes, 180 Ark. 678, 22 S. W. 2d 390, 67 A. L. R. 1436.
In Greene County v. Smith, 148 Ark. 33, 228 S. W. 738, it was held that certificates evidencing interest of $3,000 in a common-law trust were not personal property in Arkansas where the trust holdings consisted exclusively of an oil and gas lease covering lands in .Texas. The opinion, written by Mr. Justice Wood, concludes with this expression: “For the purpose of taxation, a lease on land in Texas for oil and gas production is real property and not subject to taxation in this state.”
We expressly held, in Sheppard v. Zeppa, Trustee, 199 Ark. 1, 133 S. W. 2d 860, that a reservation of ‘ ‘ min eral rights” pertaining to certain lands was effective to withhold oil, gas and other minerals from a conveyance.
It can no longer be doubted that a reservation of minerals, or of mineral rights, is sufficient to identify oil and gas.
In United States v. Southern Pacific Company, 40 S. Ct. 47, 251 U. S. 1, 64 L. Ed. 97, it was said: “All ‘mineral lands’ other than those containing coal and iron were excluded from the grant, and this exclusion embraced oil lands.” This opinion was written in 1919, but it does not purport to interpret the intent of the railroad company’s management in the execution of deeds conveying to the company’s grantees. This case preceded by five years that of Burke v. Southern Pac. Railroad Company, 234 U. S. 669, 34 S. Ct. 907, 58 L. Ed. 1527. It was there said [in respect of granting' acts expressly excluding “all mineral lands”] that no attempt was made to define mineral lands other than iron and coal lands, and that doubtless the ordinary or popular signification of that term was intended. Apparently, says the opinion, it was used in a sense which, if not restricted, would embrace iron and coal lands, “else care hardly would have been taken to declare that it should not include them.” This, said Mr. Justice 'Brown, was deemed a reasonable inference in Northern Pacific Railroad v. Soderberg, 188 U. S. 526, 47 L. Ed. 575, 23 Sup. Ct. Rep. 365 (1903), where a contention that it embraced only metaliferous lands was rejected.”* Other cases to the same effect might be mentioned, e. g., Bourdieu v. Pacific Western Oil Company et al., 8 Fed. Supp. 407 (1934); Crain v. Pure Oil Co., 25 Fed. 2d 824 (8th C.C.A.).
A case referred to 'by appellants as being on “all fours” with the instant appeal is Luse v. Boatman (Tex.), 217 S. W. 1096. The decision was handed down in 1919 and has frequently been cited by other courts. It discusses what was termed the minority rule of Pennsylvania (Dunham v. Kirkpatrick, 101 Pa. 36, 47 Am. Rep. 696), announced in 1882. Subsequently Pennsylvania courts treated gas and oil as minerals. The Luse case concludes:
“In view of the great preponderance of judicial expression from the various state courts of last resort, announced prior to the time when Ammerman acquired title to the land, to the effect that oil and gas should be construed as within the term ‘mineral’ or ‘minerals’ in a reservation, we are of the opinion that Ammerman himself acquired no title to the oil and gas under his land, and therefore could not convey such title.”
In most of the decisions holding that oil and gas were included in reservations of minerals, there were circumstances denoting such intent; and, where purposes of the parties can be ascertained from a writing or from general customs, and effect can be given such intentions without impinging a settled rule of law, it should be done. Beasley v. Shinn, 201 Ark. 31, 144 S. W. 2d 710, 131 A. L. R. 1234.
It was said in Detlor v. Holland, 57 Ohio St. 492, 49 N. E. 690, 40 L. R. A. 266 (Ohio), that a deed made in 1890 conveying mining rights- should be construed in the light of oil developments as they then existed in the vicinity of the land.
A conveyance of “all the coal and other minerals” was held to exclude oil and gas. Gordon v. Carter Oil Co., 19 Ohio App. 319. The case was decided in 1924, and ■ the opinion says that in determining whether oil and gas passed under the conveyance, the question should be answered in the light of the deed’s language, together with facts, circumstances, and surroundings of the parties at the time the deed was executed.
In Lehigh Zinc & Iron Co. v. New Jersey Z. & I. Co., 55 N. J. L. 350, 26 A. 920, it was held that the best and surest method of expounding an instrument is by referring to the time when, and the circumstances under which, it was made. Or, expressed differently, a contemporaneous construction is best and most powerful in law. See Boyd v. United States, 116 U. S. 616, 29 L. Ed. 746, 6 S. Ct. 524.
Devlin on Deeds, v. 2, edition of 1887, states the rule of that time to be: “ Petroleum is not included under a reservation of all minerals.”
In Beury v. Shelton, 151 Va. 28, 144 S. E. 629, the court said: “If it had been intended to reserve limestone, it seems rather clear that it would have been done explicitly in an instrument which bears every evidence of careful and skilled preparation.”
A Kentucky case — McKinney’s Heirs v. Central Kentucky Natural Gas Co., 134 Ky. 239, 120 S. W. 314 — decided in 1909, contains this language: “We may here remark that, if the excitement at time was caused by the discovery of natural gas, it is strange that in drawing the conveyance they did not use words which would have, without doubt, included natural gas. In addition to the oral testimony as to the history of natural gas at the time the conveyances were made, we will consider the language of the conveyances to ascertain the intention of the parties .at the time they were executed. . . . There is nothing to show that natural gas should be included in the word ‘minerals,’ and the easements granted in connection with the rights therein conveyed are not applicable to the production of natural gas, which shows that it was not intended that gas was to be included in the conveyances.”
A reservation of “all the minerals on said land” is discussed in Kentucky Coke Co. v. Keystone Gas Co., 296 F. 320 (C.C.A., Ky., 1924). It was thought that the clause was ambiguous and that a proper construction of the deed required consideration of the circumstances connected with its execution, and the understanding and intention of the parties. Commenting that at the time the deed was executed there existed no understanding on the part of the grantee that the word “mineral” embraced oil and gas, the court said: “The word ‘mineral’ was used in its narrow and restricted sense, but as then understood by tlie parties as referring to coal, and nothing else; and to give the word any other meaning as it appears in this deed would be to do violence to the evident intention of the parties and the construction which they placed upon it.”
Other decisions to the same effect might be cited.
We agree with Chief Justice Gibson of Pennsylvania that “The best construction is that which is made by viewing the subject of the contract as the mass of mankind would view it; for it may be safely assumed that such was the aspect in which the parties themselves viewed it.” Schuylkill Nav. Co. v. Moore, 2 Whart. (Pa.) 477.
In 29 Texas Jurisprudence, 680, the following appears: “A grant of minerals does not, of course, include mineral rights not embraced in the deed, nor minerals which were not within the contemplation of the parties.” There is a citation to .Carothers v. Mills, 233 S. W. 155 (Tex. C.C.A., 1921), in which this language is used: “. . . However, it does not follow that the term [minerals] must be [construed as including oil and gas], as a matter of law, despite the intention of the parties, especially with relation to a clause in a deed, made when the conveyance in controversy was executed, which was in the year 1899. It may be at this late day, when the exploration for and development of oil and gas are so common, and when courts are so uniformly holding these substances to be minerals, that the ordinary acceptation of the term ‘minerals’ must be held to include oil and gas.”
The Supreme Court of the United States — Deffeback v. Hawke, 115 U. S. 392, 6 S. Ct. 95, 29 L. Ed. 423 (1886) —held that a statutory reservation of “valuable mineral deposits” applied only to deposits known to be valuable at the time of the grant.
Just what was meant by the reservations affecting-lands conveyed to Iron Mountain under the land grant acts is not controlling here. Our task is to decide what Iron Mountain meant when it reserved “all coal and mineral deposits.” Although there were court decisions holding oil and gas to be minerals, such was not the general construction; and this was particularly true in a country where oil and gas were not given the slightest commercial consideration in connection with land values. “All coal and mineral deposits” undoubtedly were thought to mean, in addition to coal, deposits of substances commonly recognized as minerals; and as to such the reservations are good. Belleville Land & Lumber Co. v. Griffith, supra.
Since the complaints only ask the court to construe the language as not reserving oil and g*as, other minerals are not affected.
The decree is affirmed.
Mr. Justice Mehaffy took no part in the consideration or disposition of this case.
Recitals in the deeds were: “Reserving all coal and mineral deposits in and upon said lands with the right to said [grantor], its successors and assigns at any and all times to enter upon said lands and to mine and remove any and all coal and mineral deposits found thereon without any claim for damages on behalf of said [grantee], his heirs or assigns.”
“Oil in the United States is generally accepted as having been discovered near Oil Creek in North Pennsylvania on August 29, 1859. In 1860 a showing of oil was discovered in a shallow pool near Paola, Kansas. In 1862 a small well was brought in near Florence, Colorado, and in 1867 some minor production was obtained in the Hilliard field in Southwest Wyoming. In 1873 oil was found in central Wyoming. In 1875 oil was being produced from small wells in the Los Angeles basin of California, and in the year 1876 California is credited with the production of 12,000 barrels of oil. . In 1889 some shallow wells were produced in Southeast Kansas, and exploration had extended across the line into the then Indian territory, the production in the Indian territory in 1891 being only 30 barrels of oil, which had increased in 1897 to 625 barrels. In Texas oil was being produced from a few shallow wells near Nacogdoches in 1887, and from the San Antonio area in 1889. In 1895 the Corsicana field was opened.”
“During the summer of 1888, Mr. J. W. McWilliams, a representative of the Union Oil Company, is said to have made an examination of the region within a radius of 5 miles of Prairie Grove for the purpose of boring for oil. The project has apparently been abandoned on the ground that the company could not lease the amount of land desired. . . . There was more or less excitement a few years ago about oil found in - Cove Creek. . . . One hole about 12 feet deep and another about 50 feet deep were drilled about 1887, but nothing of importance was developed. . . . The rock in which the oil occurs is a soft, snuff-colored sandstone having a total thickness of about 50 feet.” In Volume II of the Arkansas Geological Survey for 1888, written by the late John C. Branner, then State Geologist, in discussing the Mesozoic Border across Pike county in Southwest Arkansas, on page 281, it is-said: “In the southeast corner of section 4, a boring was made some years ago in the expectation of finding oil. Within 10 feet of,the surface a black substance was struck which resembled coal in appearance and which burned rapidly when ignited. The boring was continued about 60 feet, at which depth a hard rock was struck and work discontinued.” In another report of the Arkansas Geological Survey, Volume II for 1891, the same authority, on page 66, under the heading “Oil and Gas — the deep well at Fayetteville” states: “Inquiries are often made of the geological survey regarding the chances of finding oil and gas in Benton county. . . . An expensive deep well (1,480 feet) was put down at Fayetteville in 1891 in the hope of finding oil or gas, or both. . . . The Fayetteville deep well was sunk by the Washington County Mining Co. to a depth of 1,480 feet.”
“These tertiary and quaternary lignites, according to the distillation analyses conducted in my laboratory, yield from 80 to 45 gallons of crude oil to the ton of 2,000 lbs. The oil is of superior quality generally. . . . Since the wonderful discoveries of native ‘rock oil’ which have recently been made, the price of coal oil has been greatly reduced.”
Mr. Owen said: “According to the report of a chemist in New Orleans, who tested this coal, the most oil obtained was 20.9 gallons; but Mr. Britton, the superintendent, thinks it will not average more than 20 gallons to the ton. The upper part, underneath the Shaley layers on the very top,- is the richest in oil.”
The secretary said: “A careful examination of the testimony shows that the contestant has failed to establish the character of the land as oil land and, therefore, subject to location under the mineral laws. ... I have before me the request of counsel for Samuel E. Rogers, applicant for patent for the Washington, Adams, Jefferson, and Madison locations of oil placer claims in the Cheyenne, Wyoming, land district, for the allowance of the entry as applied for. Said request is based on the finding that the land is only fit for extracting petroleum, in the report of a special agent of your office, who was directed to investigate the tracts in question. . . . The above mentioned investigation into the character of the improvements upon the claim was ordered in view of department ruling of January 30, 1883. . . . And for the purpose of determining ‘whether or not the same ruling should apply to oil land’.”
Following is the testimony of “a competent witness”: “No wells for oil or gas or distillate have ever been drilled on any of the lands in question, and no oil or gas or distillate has ever been.produced therefrom. No oil or gas or distillate had been produced in Arkansas at the date of the deeds from the St. Louis, Iron Mountain & Southern Railway Co. described in the complaints as conveying the lands involved in these suits. There was then no production in Louisiana, and production in Texas was very small, amounting to only 50 barrels in 1894. There had been no litigation in Arkansas about oil or gas at the time of said deeds, and the first such reported case in Arkansas was Mansfield Gas Co. v. Alexander, 97 Ark. 167, decided in 1911. The first reported oil case in Louisiana was in 1904. There was no oil or gas in substantial quantities being produced at the date of these deeds in any state through which the lines of the Iron Mountain extended. Coal and iron were produced in Arkansas prior to the date of said deeds.”
The act, is referred to in the briefs as § 1360 of Pope’s Digest. It appears as § 13600, and amended § 9856 of Crawford & Moses’ Digest. [See act 30, approved March 1, 1897, p. 38.]
See cases upon which the text is predicated, 40 C. J., pages 738 and 980; 18 R. C. L., pages 1176 and 1206; Thornton, Oil and Gas (Willis Edition), § 474, p. 795; Summers on Oil arid Gas (Permanent Edition), § 135, p. 332.
The case was decided in 1914.
The opinion concluded with this expression: “. . . But, passing this seeming divergence in opinion, and assuming that, when subjected to a strictly scientific test, petroleum is not a mineral, we think that is not the test contemplated by the statute. It was dealing with a practical subject in a practical way, and we think it used the words ‘mineral lands,’ and intended that they should be applied, in their ordinary and popular sense. In that sense, as before indicated, they embrace lands chiefly valuable for petroleum.”
In the opinion use is made of the phrase: “Contemporánea expositio est optima et fortissima in lege.”
xhe “easements” referred to were reservations “to enter upon said lands and to mine and remove any and all coal and mineral deposits found.”
It was further said, in respect of the construction given a deed executed in 1921: “The construction given the word ‘minerals’ by the courts had become known in that community.” | [
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Smith, J.
This is an appeal from a judgment sentencing appellant to a term of one year in the state penitentiary upon his trial, in which he was charged with the crime of grand larceny. For the reversal of this judgment only two errors are assigned which are of enough importance to require discussion. These are: (1) That the testimony is not sufficient to support the verdict; and (2) That error was committed in the cross-examination of appellant, which the court permitted over the objection and exception of appellant.
The testimony on the part of the state was to the effect that appellant stole from the person of Roy Davis a bill fold containing $23 or $24. Davis and appellant met at a roadhouse, where beer was sold, and both were drinking heavily. They went to the restroom, and Davis testified that as he stepped on the second step going into the restroom, appellant ran his hand into Davis’ hip pocket and extracted the bill fold containing the money. Davis testified that he made no protest at the time, because appellant was armed, but when he returned to the main room he asked “If there was no law there,” and accused appellant of having robbed him. He borrowed a dime to pay for a telephone call to the State Police. But before the officers arrived appellant returned to the restroom and threw the bill fold away. Appellant denied having stolen the money, and he and Davis engaged in a fight. When the officers arrived they searched for and found the bill fold about where Davis said it had been thrown.
This testimony, if accepted as true, as it evidently was, is sufficient to sustain the verdict.
Testimony on the part of appellant sharply conflicted with this testimony, and was to the effect that appellant did not steal the bill fold containing the money. It is unnecessary to recite this testimony in detail, as the conflicts presented by the testimony were, of course, questions for the jury.
On his cross-examination appellant was asked about another incident which had occurred previously in Missouri. Over appellant’s objection the following cross-examination was permitted: ££Q. Let me ask this and for the purpose of impeachment, not long before this happened, didn’t they swear out a warrant for you robbing a man in Missouri and didn’t they take you back and you all pay $140 for that? Answer yes or no. A. No, sir. Q. You were arrested and taken back? A. I wasn’t arrested. Q. Didn’t you pay $140 to get out of what the gentleman charged? A. Yes, sir. Q. You remember that old man you took from here to Monette and after you got him asleep you took $160 off of him? A. No, sir, I found $106 — $103 laying on the floor board loose and the man was drunk and I taken his wife back down there the next day. Q. You and your brother went back the next day? A. This man — I come to get his wife. He come here on business after his wife and he give me $5 to get his wife and bring her back. If she wouldn’t go to come back and tell him. Q. I am not asking so much about that, but how much did you and your brother pay to keep from answering that? A. $160. Q. That is all. A. And that man, he didn’t say that I got it. Q. If you didn’t get it, why did you give him the money? A. Would you rather somebody would lock you up in jail? Q. I never tried it. If you didn’t get the money, why did you give the money back? A. I didn’t get it and I didn’t feel like laying in jail. Q. And you didn’t get this off of Davis either? A. No, sir.”
It is insisted, upon the authority of the cases of Parnell v. State, 163 Ark. 316, 260 S. W. 30, and Beauchamp v. State, 190 Ark. 440, 79 S. W. 2d 267, that this cross-examination was erroneous and prejudicial and calls for the reversal of the judgment.
From the first of these cases appellant quotes as follows: “We have frequently held that it is improper to permit a witness to be interrogated concerning mere accusations, or indictments for crime.” And from the second case appears the following quotation: “The prosecuting attorney had the right if appellant saw fit to take the stand as a witness in his own behalf, to interrogate him concerning conviction of crime which might affect his credibility as a witness, but the officer had no right to introduce independent proof of those facts, and, on the contrary, was bound by appellant’s answers. .This is so, even as to convictions, and as to mere indictments for crime it would not have been proper to ask appellant concerning them. At any rate, the prosecuting attorney had no right to narrate before the jury other charges against appellant.”
It is recited in the opinion in this Beauchamp case, supra, that the prosecuting attorney, in his closing argument, stated: “The attorney for the defendant failed to call to the attention of this jury the fact that there are three more indictments pending in this court against the defendant for bootlegging.” It was this statement of the prosecuting attorney which was held erroneous and for which error the judgment was reversed.
Here, appellant was not interrogated concerning the accusation of another crime or an indictment charging one, nor was any independent testimony offered to the effect that he had been accused of or indicted for the commission of another crime. His cross-examination concluded the inquiry as to the other crime. In permitting this cross-examination the court admonished the jury that it could be considered only as affecting the credibility of the witness. As thus limited, many cases have held that the cross-examination was proper. A recent case, citing others to the same effect, is that of Phillips v. State, 190 Ark. 1004, 82 S. W. 2d 836.
No error appears, and the judgment will be affirmed. | [
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McHaney, J.
Appellant and one L. B. Miller were charged in count 1 of one information with the crime of forgery by forging the name of Bruce Burton to a check drawn on the First National Bank of Newport for $18.75, and in the second count with uttering said check on P. K. Holmes, Jr. They were likewise charged in a second information of forging the name of Bruce Burton to another check on the same bank for $30.75, and uttering same on Economy Store. Miller entered a plea of guilty. Appellant was tried, both cases having been consolidated for trial, was found guilty on the second count of the second information only and sentenced to two years in the penitentiary.
Appellant says the evidence failed to show that there was a Bruce Burton, except that I). H. 'Burton had gone by that name. It was definitely shown that D. H. Burton was a well known person in Jackson county and was frequently called and known as Bruce Burton. He carried an account in said bank in the name of D. H. Burton. It is undisputed that both checks were forgeries, and it is undisputed that D. H. and Bruce Burton are one and the same person. The forger spelled Burton’s name with two t’s, but this fact can avail appellant nothing. He was not convicted of forgery, but of uttering.
Appellant’s principal and only other argument for a reversal of the judgment is that he should not have been forced to go to trial on both informations, charging two different forgeries and utterings. A sufficient answer is that he made no objection to the consolidation and trial of the charges together, until the case was ready to go to the jury. The record recites the objection then made as follows: “After the evidence was in and the argument of counsel for both parties was had and after the jury had been instructed as above the defendant requests the court to treat the cases as severed and try the defendant only on the one case and not on the two cases at the same time, which request was by the court refused and to which refusal of the court the defendant at the time excepted and asked that his exceptions be noted of record which is accordingly done.”
This objection came too late, even though it might have been availing, if made in apt time. Silvie v. State, 117 Ark. 108, 173 S. W. 857; Herdison v. State, 166 Ark. 33, 265 S. W. 84. No prejudice is shown to have resulted from a consolidation. He was acquitted on one information and on one. count of another, when the evidence was sufficient to have supported a conviction on both counts of both informations!
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Humphreys, J.
This is an appeal by appellant from a consent judgment rendered on tbe 24th day of June in tbe probate court of Pulaski county, Arkansas.
Tbe transcript of tbe proceedings in tbe probate court filed in this court does not contain tbe testimony beard by the probate court nor a motion for a new trial, if such motion were filed.
Tbe record before us, as reflected by the transcript, contains an affidavit and application of A. C. Mayberry for letters of administration on tbe estate, valued at $200, of E. F. Mayberry, deceased, in which it is stated that E. F. Mayberry died intestate in Pulaski county, Arkansas, on tbe 2nd day of February, 194.0, leaving surviving him tbe following heirs, A. C. Mayberry, W. A. Mayberry, Mrs. W. M. Eighme, H. V. Mayberry, Mrs. Thelma M. Nelson, R. A. Mayberry, Mrs. Lucy M. Langley, Giles Mayberry and Mrs. Walter Trice; and also contains an administrator’s bond in tbe penal sum of $200, in regular form, with surety, conditioned for tbe performance of bis duties as administrator; and also contains an order of tbe probate court on March 24, 1940, as follows:
“In the matter of the estate of E. F. Mayberry, deceased.
“Now on this day is presented to the court for approval the application of A. C. Mayberry, for appointment as administrator of the estate of E. F. Mayberry, deceased, late of Pulaski county, Arkansas, also is presented herein his bond in the sum of two. hundred ($200) dollars, with Central Surety & Insurance Corporation, as surety thereon; said bond is by the court deemed good and sufficient, is approved and confirmed, the application granted and letters of administration are hereby ordered to issue ’ ’; and also contains the last will and testament of E. F. Mayberry executed according to statutory requirements on May 8, 1936, and proof of the will by the subscribing witnesses on the 12th day of February, 1940, the body of which will is as follows:
“Last Will and Testament of
E. F. Mayberry
“Item 1: I give to my sister, Lillian Eighme, the proceeds of a certain life insurance policy in the Brotherhood of Railroad Trainmen after paying from the said policy my funeral expenses and one thousand dollars ($1,000) which I owe Mrs. Gr. W. Black of Little Rock, Arkansas, which I direct to be paid out of the proceeds of this policy.
“Item 2: I hereby give, devise and bequeath to the said Mrs. Gr. W. Black my farm consisting of forty-one and 87/100ths acres in Pulaski county, Arkansas, known as the old Bashman Place.
“This gift is in consideration of many kindnesses and helpful care rendered me by the said Mrs. Gr. W. Black, over a period of many months. It is my desire that this will be not contested by either beneficiary herein,
(Signed) E. F. Mayberry.”;
It also contains a contest of the will by the heirs of E. F. Mayberry, deceased, heretofore named, on the grounds that said will is not the last will of E. F. May-berry and the alleged invalidity thereof because it does not comply with §§ 14511 and 14513 of Pope’s Digest; and also contains the judgment of the court entered on June 24, 1940, a day of the April, 1940, term of said court, which judgment is as follows:
“In the matter of the estate of E. P. Mayberry, deceased.
‘ ‘ Judgment
“Now on this day is presented to the court the will of E. P. Mayberry, attested by Mrs. Mary Wynne and W._N. Lewellen, and come all parties interested in said will in open court and with their counsel and after hearing the testimony and seeing the will, it is the opinion of the court, and by consent of the parties, agreed that said will should be probated.
“It is, therefore, by the court considered, ordered and adjudged that the paper presented is the last will and testament of E. P. Mayberry, deceased, duly attested, and all the prerequisites complied with and the said will is ordered probated and letters of administration with a copy of the will attached issued to Mrs. G. W. Black; and that the proceeds of the policy in the Brotherhood of Railroad Trainmen by the court and with the consent of all parties is given to Mrs. Lillian Eighme; that the other property of said E. P. Mayberry to be vested in Mrs. G. W. Black; however, as to $100 due to Mr. Mayberry as salary, from the railroad, same is to be paid to A. P. Mayberry, to cover his expenses; however, further by consent, Mrs. Lillian Eighme, upon the payment of $67 to cover lien on diamonds, Mrs. Eighme is to get the diamond stickpin and Mrs. Black the diamond ring.
“The court finds that by agreement, A. C. Mayberry was appointed administrator of the estate of E. P. May-berry on April 24, 1940, and by consent of all parties, without any report being filed by A. C. Mayberry, he and his bondsmen are hereby released a«td discharged. And by consent it is agreed that the funeral expenses and other expenses of administration to date have been paid and are not to be a charge against the real estate or any other property.
“And it is so ordered.
“(Signed) Frank JEL Dodge, Probate Judge.
6/24/40
“O.K.
“Fred A. Snodgress “A. H. Rowell.”
According to the record of the proceedings in the probate court as revealed by the record, one of the heirs of E. F. Mayberry, deceased, applied for letters, of administration on his estate and tendered a bond for the performance of his duties setting out in the application the names of the heirs of E. F. Mayberry and the value of the estate. The court approved the bond and granted letters of administration to A. 0. Mayberry, one of the heirs.
This was done on the theory that E. F. Mayberry made no will. Before anything had been done by the administrator the last will and testament of E. F. May-berry was produced and proof of the will was made by the subscribing witnesses thereto. A contest of the will was then filed upon the grounds set out above. Subsequently the judgment which is assailed on this appeal was entered by the court.
By reference to the judgment which has been set out in full, it will be found that it recites that all parties interested in said will appeared in open court with their counsel and after hearing the testimony and seeing the will the court by consent of all the parties agreed that the will should be probated which was done and letters, of administration with the will annexed were issued to Mrs. G-. W. Black who is the appellant herein. The judgment then recites that by consent of all the parties the proceeds of the policy mentioned in the will was given to Mrs. William Eighme and that the other property was vested in Mrs. Gr. W. Black and that the $100 which was due Mr. Mayberry as salary from the railroad should be paid to A. C. Mayberry who had been appointed administrator to cover his expenses and that by agreement of all parties, Mrs. Eighme, upon the pay ment of $67 to cover a lien on diamonds, is to get the diamond stickpin and Mrs. Black the diamond ring and that by agreement of the parties, A. C. Mayberry, who had been appointed administrator together with his bondsmen should be released and discharged. It further recites that the funeral expenses and other expenses of the administration to date had been paid and were not to be charged against the real estate. .
Appellant contends that the judgment should be canceled because it is indefinite as to who the parties interested were. We think the record before us reflects very definitely who the parties were. The parties were the heirs of E. F. Mayberry, deceased, and the legatees in the will.
Appellant contends that there is nothing in the record to show that the insurance company that issued the policy and the creditors of the estate were parties to the proceedings. This is true, but neither the insurance company nor any creditor is complaining and have not appealed and are not asking that the judgment be canceled.
Appellant also assails the judgment on the ground that the probate court had no jurisdiction to interpret or construe the provisions of the will and cites authorities to this effect and if the probate court had construed or interpreted the provisions of the will and adjudged the property covered by the will to any or all of the contending parties that part of the judgment would be void on its face, but we do not so read or interpret the judgment of the court. The court admitted the will to probate and appointed Mrs. Gr. W. Black as administratrix with the will annexed which it had a legal right to do. According to the judgment even this was done by agreement of the parties, but there is nothing in the judgment showing that the court construed the provisions of the will and adjudged the property to the legatees in accordance with or contrary to the terms of the will. The judgment reflects that, by agreement of the parties, certain property of the estate was to be given to Mrs. Eighme and the other property was given to Mrs’. Gr. W. Black and that the administrator and his bondsmen were discharged. In other words, as we read the judgment it was nothing more nor less than an entry of a settlement between the parties interested of the issue of whether the will was the last will and testament of deceased and a division among themselves of certain property belonging to the estate. Certainly, interested parties have a right in or out of court to settle a suit involving issues between them and to divide the property of the decedent between themselves. As stated above the division of the property between them was not on account of the construction of the provisions of the will by the court, but because the interested parties agreed to such division. There is nothing’ in the judgment to show that any of the parties were minors, and it recites on its face that all the parties interested were present in person and by attorneys. Had the judgment on its face shown that after admitting the will to probate as the last will and testament of E.. F. Mayberry, deceased, the court then construed and interpreted the provisions of the will and awarded certain property to the legatees under his construction thereof, the judgment would be void insofar as he exceeded his jurisdiction; but since it reflects that the parties thems'elves agreed to a division of the property on condition that the will be admitted to probate as the last will and testament of E. P. Mayberry, deceased, the action of the parties must be treated as a settlement between them of the issues involved in the suit.
No error appearing, the judgment is affirmed. | [
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Humphreys, J.
Appellant was indicted, tried, and convicted of the crime of carnal abuse in the circuit court of Polk county of having sexual intercourse with Bonnie James, a female person, when she was under the age of sixteen years, resulting in a verdict and judgment incarcerating him in the state penitentiary for one year as a punishment for the crime, from which is this appeal.
The indictment charged that the crime was committed on September 14, 193-9.
At the beginning of the trial the prosecuting attorney, in making his opening statement to the jury, stated that he would not rely upon the act of sexuhl intercourse alleged in the indictment as having occurred on September 14, 1939, but would make -proof of other acts of sexual intercourse within the period of limitation, whereupon attorneys for the appellant made the following motion:
“The prosecuting attorney, in his opening statement having stated that the prosecution will not rely upon the act of the intercourse as alleged in the indictment to have taken place on September 14, but will attempt to prove other acts of intercourse within the period of limitation, the defendant, before making opening statement to the jury, moves the court to require the state to elect upon which offense it will rely.”
Appellant first contends for a reversal of the judgment on the ground that the state failed to prove that the act of sexual intercourse occurred in Polk county. The prosecutrix testified that on Sunday night, September 3, 1939, appellant had sexual intercourse with her between the towns of DeQueen and Wickes, and that the following week he had sexual intercourse at Wickes, where they are building a new school house. This testimony means that the act of sexual intercourse occurred at the new school house being built at Wiekes. Wiekes is a village about eight miles from the county line in Polk county of which location this court takes judicial knowledge. The evidence is, therefore, sufficient to show that the offense occurred in Polk county under authority of the cases of Forehand v. State, 53 Ark. 46, 13 S. W. 728; Scott v. State, 75 Ark. 142, 86 S. W. 1004; Guerin v. State, 150 Ark. 295, 234 S. W. 26; Harris v. State, 186 Ark. 10, 52 S. W. 2d 631; and Meadow v. State, 201 Ark. 1083, 148 S. W. 2d 653.
Appellant also contends for a reversal of the judgment on the ground that the trial court erred in refusing to require the state to elect which particular act of sexual intercourse it would rely upon after the prosecuting attorney announced in his opening statement that he would not rely upon the act of sexual intercourse alleged in the indictment to have occurred on September 14, 1939, but would attempt to prove other acts of sexual intercourse within the three year period of limitation. The state was not required to elect. Section 3841 of Pope’s Digest governs in cases of this kind and is as follows: “The statement in the indictment as to the time at which the offense was committed is not material, further than as a statement that it was committed before the time of finding the indictment, except when the time is a material ingredient in the offense.”
“In Williams v. State, 103 Ark. 70, 146 S. W. 471, we held that, on a charge of carnal abuse ‘a conviction will be sustained by proof that the crime was committed by defendant at any time within three years next before the finding of the indictment. ’
“Under the above statute, although the offense was alleged to have been committed on December 10, 1915, evidence that the offense was committed on that or any other date within three years before the finding of the indictment would sustain the conviction.” Stinson v. State, 125 Ark. 339, 189 S. W. 49.
This court also said in the case of McGehee v. State, 162 Ark. 560, 258 S. W. 358, that: “It is true Lena did not specify any exact date on which an act of sexual intercourse occurred, but we think her statement that these acts of intercourse continued during a period of three years was sufficiently definite.
“It is true also, as is pointed out by counsel for. appellant, that the indictment alleged the date of the commission of the offense as being September 1, 1921, but this date is immaterial if the offense was in fact committed within three years of the date of the indictment and at a time when Lena was under sixteen years of age.”
No error appearing, the judgment is affirmed. | [
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Smith, J.
Appellee brought suit in ejectment against appellants to recover possession of a lot in the city of El Dorado, Arkansas, described as follows: “Commencing at the northeast corner of the southwest quarter of northwest quarter (SW14 NW1/^) of section thirty-three (33), township seventeen (17) south, range fifteen (15) west, run thence south 565 feet to point of beginning; thence run west 150 feet, thence south 70 feet, thence east 150 feet, thence north 70 feet to point of beginning. ’ ’
Appellants filed an answer alleging ownership of the lot under a deed from the Commissioner of State Lands dated March 8, 1939. It was alleged in the answer that this lot forfeited to the state for the nonpayment of the general taxes dne thereon for the year 1932, said lot having been assessed, advertised and sold for taxes under the following description: “SW NW 70x155, block 5, Askew’s Second Addition to El Dorado, Arkansas.” It was alleged in the answer that appellants entered into the possession of this lot under the deed and paid improvement district taxes thereon amounting to $58.14 and made improvements of the value of $425, and it was prayed that the complaint be dismissed because tender thereof had not been made.
The court found that the sale was void, and that appellee was entitled to possession upon paying the amount of the improvement taxes which the tax purchaser had paid, hut that appellants were not entitled to recover the value of their improvements. Appellants have appealed from the judgment disallowing the improvements, and appellee has prayed a cross-appeal from the allowance of the taxes.
The invalidity of the tax sale is admitted. The impexTect description alone would make it so; but appellants insist that they should have judgment for the value of the improvements notwithstanding that fact. The case of Wilkins v. Maggard, 190 Ark. 532, 79 S. W. 2d 1003, is relied upon to support that contention. In that case a tract of land had been sold for taxes under a void description; but the tax purchaser had entered upon the land and made improvements thereon. It was there held that the tax purchaser was entitled to recover the value of his improvements notwithstanding the invalidity of the tax sale.
But that case has no applicatioxx here, for the reason that the purchaser did not enter upon and improve the land which was sold for taxes. There was offered in evidence a map of the Askew Second Addition to the city .of El Dorado, which shows also the northeast corner of the southwest quarter northwest quarter section 33. This map shows that it is 635 feet from the northeast corner of the southwest quarter northwest quarter to the north end of the Askew 'Second Addition, and block 5 of that addition is at the extreme southwest corner of the addition.
The point at which the description of the lot in controversy begins is 565 feet south of the northeast corner of the southwest quarter northwest quarter. From this beginning point the lot in controversy extends south 70 feet, which would carry it to an alley on the north side of the addition. In other words, the lot is just outside and north of the addition, and is no part of the addition. Block 5 of this addition consists of lots' numbered 1, 2, 3, and 4, which are each 54 x 139 feet, so that the description “70x155, Block 5, Askew’s Second Addition” is meaningless. But it is unimportant to consider what part of block 5 was sold for taxes, as the land here sued for was no part of that block. The county surveyor, who made a survey of the lot here in suit, was asked: “Q. How far is block 5 of Second Askew’s Addition from the property which you surveyed for the defendants?”, and he answered, “It is approximately 750 feet south, and about 400 feet west.” In other words, appellants have improved a lot which did not sell for taxes, and the case of Wilkins v. Maggard, supra, has, therefore, no application.
The effect of the opinion in the case of Wilkins v. Maggard, supra, is that, if one acquires a tax title to land, which was sold for the taxes, due thereon under a void description, and enters into possession under his void tax deed, he may, notwithstanding the tax deed is too indefinite to constitute color of title, recover the value of improvements made at a later date than two years after the expiration of the period of redemption. But in that case the tax purchaser took possession of the land improperly described. Here, the tax purchaser has taken possession of land which was not sold. The Wilkins case, supra, does not apply.
The ease which does apply is that of Wallace v. Snow, 197 Ark. 632, 124 S. W. 2d 209. In that case Wallace, through a mistake as to the boundary between a tract of land which he owned, and an adjoining tract of land owned by iSnow, made permanent improvements on Snow’s land. The location of the correct boundary was determined in favor of Snow, from which Wallace appealed. It was there said, “It is further argued that the court should have allowed him judgment for improvements. In Marlow v. Adams, 24 Ark. 109, it was held that a party-in possession of lands, who fails to establish his title thereto, cannot be allowed for improvements more than the value of the rents. And in McDonald v. Rankin, 92 Ark. 173, 122 S. W. 88, it was held that at common law there could be no recovery for improvements by the possessor against the true owner; that the true owner was entitled to the improvements even against a bona fide possessor; but that equity adopted the doctrine requiring the value of permanent improvements placed by a bona fide possessor to be off-set against the rents and profits, whenever the true owner applied to equity for an accounting by the possessor of the rents and profits. In this case there is no demand by appellees for rents and profits, and appellant cannot recover for his improvements. Not having color of title to the disputed strip of land he cannot claim under the betterment statute, § 4658, Pope’s Digest. See, also, Foltz v. Alford, 102 Ark. 191, 143 S. W. 905, Ann. Cas. 1914A, 236.”
In this case, as in the Wallace case, supra, there was no demand for rents, or for an accounting, or for any equitable relief. Possession of the land only was prayed, and no other relief was awarded.
We conclude, therefore, upon the authority of the Wallace case, supra, that the court properly denied recovery for the value of the improvements, and the judgment is, therefore, affirmed upon the direct appeal.
We are of opinion also that it was error to award judgment for the improvement taxes paid by appellants, and the judgment will be reversed upon the cross-appeal. Appellants were volunteers in paying these taxes. Ap pellee might have intended to resist the collection of the improvement taxes; hut, whether so or not, no volunteer had the right to pay them in his own name, and thus east a cloud upon the title and thereafter recover the taxes paid. Brunson v. Board of Directors of Crawford County Levee Dist., 107 Ark. 24, 153 S. W. 828, 44 L. R. A., N. S., 293, Ann. Cas. 1915A, 493.
As the award for the improvement taxes was made a lien upon the land, the cause will he remanded with directions to award appellee possession of the lot sued for, free of any claim for the taxes paid. | [
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Holt, J.
Appellant, J. B. Hall, sued appellees, a partnership, to compensate personal injuries growing out of a collision between an automobile in which appellant was riding, driven by appellant’s son, and a Chevrolet truck driven by an employee of appellees. The negligent acts of appellees alleged in the complaint were that on September 11,1939, appellant accompanied by his son, Kenneth Hall, his wife and two others, in a Chevrolet coach traveling west on paved highway No. 67 ■ at a speed of 35 or 40 miles per hour, about ten miles from the city of Hope, Arkansas, came up behind a truck driven by appellees’ employee, Floyd Creen, driving in the same direction; that when they had reached a point about “30 feet” to the rear of the truck, the driver of the truck negligently and without any signal or warning suddenly stopped the truck in the middle of the highway and as a result appellant “was unable to stop his car or pass the truck on the left-hand side of the high way and as a result the cars collided and caused plaintiff’s injuries.”
Appellees answered with a general denial and pleaded contributory negligence of appellant.
Upon a jury trial there was a verdict in favor of appellant, signed by nine members of the jury panel, in the amount of $750. On the same day this verdict was rendered, appellees filed motion for a new trial and among the grounds alleged in said motion were that the verdict of the jury was contrary to the evidence, contrary to the law, and that errors wer¿ committed in giving, and in refusing, certain instructions, and that the verdict was excessive.
Upon a hearing the trial court granted appellees’ motion for a new trial and set aside the judgment, assigning no specific ground or grounds therefor, and this appeal is from that order, appellant having stipulated that if the judgment granting the new trial be affirmed judgment absolute may be rendered in this cohrt under § 2735 of Pope’s Digest. Appellees have not favored us with a brief.
Appellant earnestly urges here that the chuse was submitted to the jury under proper instructions, on conflicting testimony, and that the jury having decided the issues of fact in appellant’s favor, the trial court erred in setting the judgment aside and granting a new trial. We cannot agree with this contention.
It has long been the established rule that the trial court not only has the power, but that it is his duty, to set aside a jury’s verdict and grant a motion for a new trial if he concludes that the verdict is against the clear preponderance of the evidence.
In McDonnell v. St. Louis S. W. Ry. Co., 98 Ark. 334, 135 S. W. 925, this court said: “It is reversible error for the trial court to direct a verdict for one party where there is any substantial evidence to warrant a verdict for the other party. The trial court cannot take from the jury its prerogative to determine disputed questions of fact (citing cases). . . .
“It is not invadixig the province of the jury for the trial judge to set aside its verdict where there is a con flict in the evidence. On the contrary, it is the duty of the trial court to set aside a verdict that it believes to be against the clear preponderance of the evidence. But it should not, and the presumption is that it will not, set aside a verdict unless it is against the preponderance of evidence. This court will not reverse the ruling of the lower court in setting aside a verdict where there is substantial conflict in the evidence upon which the verdict was rendered, but will leave the trial court to determine the question of preponderance. Taylor v. Grant Lumber Co., 94 Ark. 566, 127 S. W. 962; Blackwood v. Eads, 98 Ark. 304, 135 S. W. 922.”
And in Twist v. Mullinix, 126 Árk. 427, 190 S. W. 851, one of our leading cases on the subject, this court said: “After the jury has concluded its deliberations and returned its verdict, if there is a motion for a new trial setting up that the verdict is not sustained by sufficient evidence, or that it is contrary to law, or both, it is then the province of the trial court to review the verdict and to determine whether or not the jury has correctly applied the law as contained in the court’s instructions, and whether or not the verdict is responsive to the preponderance of the evidence. . . .
“Where there is a decided conflict in the evidence this court will leave the question of determining the preponderance with the trial court, and will not disturb his ruling in either sustaining a motion for a new trial or overruling same. . . .
“The witnesses give their testimony under the eye and within the hearing of the trial judge. His opportunities for passing upon the weight of the evidence are far superior to those of this court. Therefore, his judgment in ordering a new trial will not be interfered with unless his discretion has been manifestly abused. See, also, McDonnell v. St. L., S. W. Ry. Co., 98 Ark. 334, 135 S. W. 925; McIlroy v. Arkansas Valley Trust Co., 100 Ark. 596, 141 S. W. 196.
‘‘ The only tribunal, under our judicial system, vested with the power to determine whether or not a verdict is against the preponderance of the evidence is the trial court. Where there is a conflict in the evidence and the trial court finds that the verdict, upon a material issue of fact, is against the preponderance of the evidence, the logical and necessary result of such finding as matter of law is that the verdict must be set aside; otherwise, it would be impossible to correct the error.”
And in Wilhelm v. Collison, 133 Ark. 166, 202 S. W. 28, this court again said: “We are not called upon to pass upon the legal sufficiency of this testimony to support a verdict based upon it, because the court below granted a new trial pursuant to the prayer of a motion therefor, which assigned as a ground therefor that the verdict of the jury was contrary to the preponderance of the evidence. We have many times said that the trial court should grant the motion for a new trial when convinced that the verdict of the jury was clearly against the preponderance of the evidence. Mueller v. Coffman, 132 Ark. 45, 200 S. W. 136; Twist v. Mullinix, 126 Ark. 427, 190 S. W. 851. And when the trial court reaches that conclusion and takes that action we have announced as a rule governing us in our review of that action that ‘this court will not reverse a decision of the trial court granting a new trial on the weight of the evidence unless it appears that there has been an abuse of the discretion in setting aside the verdict 'which is sustained by the clear preponderance of the evidence.’ McIlroy v. Arkansas Valley Trust Co., 100 Ark. 599, 141 S. W, 196.”
While it is our view that the cause was submitted under proper instructions, the evidence upon which the verdict was based was in sharp conflict. The evidence on the part of appellant is that he was on a trip with his family from Shelbyville, Kentucky, to Tuscon, Arizona. On the first day of the journey the car being driven by his son, after driving approximately 13 hours and covering 580 miles, they reached Little Rock at about six p. m. and left the next morning at four o ’clock. The collision occurred about seven-thirty. They were driving along paved highway No. 67 at a speed between 35 and 40 miles per hour. Visibility in either direction was clear for a mile or more. Brakes and tires on the car were good. Appellant was about 30 yards behind the truck when the truck stopped. Appellant’s son, who was driving the car, testified:
“I have not figured how long a distance it would take to stop. I think it would take around 90 or 100 feet. I couldn’t stop the car in 30 feet. I was more than 30 feet behind him. . . . Q. Did this man come to a stop before you hit him? A. Yes, sir. I mean to say he came to a dead stop right on the highway over the black line. He gave no signal whatever. . . . Q. You were trying to get around the truck? A. Yes, sir. After he stopped I was about 90 feet behind him when I saw he stopped. I couldn’t get around — not with him with all the road. He stopped in the middle of the road. For 90 feet I could see this. I could not pass him. ... I had my car under control, but I didn’t know he was going to stop. He stopped without any warning and then I took my foot off the accelerator and put the brakes on.”
There was other evidence tending to corroborate appellant’s testimony.
The testimony of appellees is in direct conflict with appellant as to the cause of the collision. Appellees’ truck driver, Floyd Green, testified: “Q. You were driving a truck? A. Yes, sir. I was driving down the road and met a car and there were some negro boys on the side of the road and I slowed down to let the boys get out of the way and when I did this car hit me. Q. What did you do with reference to giving a signal? A. I threw out my hand. *Q. Did you ever stop your car at all? A. No, sir, not plumb stopped. I imagine I was driving eight or ten miles an hour. I gave a signal. I was driving a dual wheel truck. I was on the right-hand side of the road, the proper side. Both of my truck wheels were not over the black mark for a foot or foot and one-half. They were on the right-hand side. My car was moving at the time this car hit me.” There was other evidence tending to corroborate appellees’ testimony.
We cannot say, however, that the trial court abused its discretion in granting the motion for a new trial and setting aside the judgment, the evidence being in sharp conflict on the issue of appellees’ negligence.
While the record reflects that the order of the court in granting the motion for a new trial was general in its terms and no specific ground was stated, since the motion for a new trial alleged as a ground the insufficiency of the evidence to support the verdict, we must affirm the trial court’s action if it can be supported on this or any other ground set up in the motion.
The rule governing is stated by the textwriter in American Jurisprudence, vol. 3, p. 371, § 829, in this language: “Where, however, the order is expressed in general terms, without a specification of the grounds therefor, it will be affirmed if it can be supported on any ground alleged in the motion, even though it is one which is discretionary with the court, as, for instance, the insufficiency of the evidence. ’ ’
. And in 5 C. J. S. 88, § 1464, subdivision g (a), the author states the rule as follows: “Where an order granting a motion for a new trial is general in its terms and does not state that it is based on any particular ground, the reviewing court may and will examine and consider the entire record and all the grounds of the motion to ascertain if the order can be sustained on any ground; and it will affirm or uphold the order if it is warranted or justified on any ground stated in the motion or notice of motion or if error in making it does not affirmatively appear from the record. Indeed, the view has been taken that no error can be based on the action of the trial court in granting a new trial where it did not specify the particular ground on which it granted the new trial. Another view, however, is that a general order granting a new trial will not be affirmed where there is no ground in the motion on which the new trial could properly have been granted.”
Finding no error, the judgment is affirmed.
Humphreys and Mehaffy, JJ., dissent. | [
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Holt, J.
Appellee, Yvette Lewis, obtained a decree of divorce from appellant, Charles H. Lewis, in the Sebastian chancery court, on the grounds of personal indignities, cruel treatment and adultery. The decree also embraced a property settlement and awarded appellee $60 per month alimony. The appellant on this appeal questions only the amount of the alimony award.
This court has many times announced the rule that in fixing the amount of alimony to be awarded a wide discretion rests with the trial court ánd unless there appears to be a clear abuse in the exercise of this discretion it will not be disturbed by this court. In fixing the amount of alimony, of foremost consideration is the ability of the husband to pay. Consideration should also be given to the station in life of the parties and the conduct of each as bearing upon the cause of the separation. Shirey v. Shirey, 87 Ark. 175, 112 S. W. 369; Johnson v. Johnson, 165 Ark. 195, 263 S. W. 379; Upchurch v. Upchurch, 196 Ark. 324, 117 S. W. 2d 339.
The rule is stated in 17 American Jurisprudence 470, §§ 602, 603, in the following language: “In addition to the financial circumstances of the parties, the courts should give consideration to their social standing and their general physical condition in reaching a decision as to the amount of permanent alimony. The amount of alimony awarded should be so apportioned as to secure to her the same social standing, comforts, and luxuries of life as she would probably have enjoyed had it not been for the enforced separation, but care should be taken that it does not amount to an appropriation of the entire estate of the husband. . . .
“The conduct of the parties may enter into the determination of the amount of alimony to be allowed. Thus, if the wife is free from blame, the allowance will be greater than if her conduct was conducive to her- husband’s fault. Similarly, where the husband’s offense has been exceedingly base . . . 'there should be no hesitancy in making a liberal allowance. Also, the con duct of the wife during the existence of the marriage relation will have weight in determining the amount of alimony to he allowed.”
This record reflects that the parties to this proceeding' were married in 1914 and lived together until the early part of 1941, a period of approximately 27 years. Three children were born to them, all of whom died in infancy. Appellee is now 40 years of age, her health materially impaired largely on account of abusive treatment at the hands of appellant. She is not physically able to support herself, has no property other than a one-half interest in a farm renting for $10 per month, certain household furniture, and $500 awarded to her in the property settlement. It is practically undisputed that she has been without fault.
Appellant operates daily a four-seated passenger bus between Fort Smith and Mansfield, making three round trips per day, except on Sunday when only two trips are made. According to his testimony he realizes an average of $7 per day from passengers and $125 per month from a mail contract and from carrying newspapers. His mail contract will expire June 31, 1943. He estimates his gross annual revenue at approximately $4,030 and expense of operating the bus and other necessary expenses at $2,768.50, or an average monthly net income of $105. Appellant submitted an itemized operating expense account but admitted that in the main it was but an estimate since he did not keep books. There was some other testimony tending to corroborate appellant.
Appellee testified that her husband told her his expenses did not exceed $100 per month and his receipts from passengers would amount to approximately $10' per day instead of the $7 as claimed by appellant. Appellee further testified that appellant’s gross income was approximately $5,150 per year, or $3,950 per year net, or an averag’e monthly income of $329.16. The testimony of Mr. Dunn tended to corroborate appellee. Dunn also testified: “Q. When you say $100 a month, do you mean $1,200 a year for his gross operating expenses? A. That is what he told me when he was trying to sell it; that the expenses on the bus would run $100 a month.”
The bus in question was a 1939 Ford which cost $1,600. A new motor had been installed at a cost of $117. Two new sets of tires are required annually at a cost of $170. There were many other items of expense in connection with the operation that we do not deem it necessary to set out here.
Appellant also testified (quoting from appellant’s brief): “. . . that he gets $10 a month rent and every time he collects it he gives his wife half of it; that in July or May of 1940 they separated and he has paid her $50 a month every month since then and also paid the household expenses; . . .”
After a careful review of the testimony presented, we have reached the conclusion that while the amount of alimony awarded appellee appears to be liberal, we think the preponderance of the testimony is in support of the trial court’s action. As has been indicated, the undisputed testimony in this case shows appellee to be without blame; the fault lies with appellant and a liberal allowance is justified. Able counsel for appellant, with becoming frankness, admit that his conduct cannot be condoned or upheld. Appellant does not deny his adulterous relationship with the other woman, that his conduct has been of the basest kind and the great preponderance of the testimony shows that appellee’s present illness is due in most part to appellant’s cruel treatment. Prior to the time that appellant became enamored of the other woman in this case, the married life of these two parties appeared to be happy and they had managed to buy a small farm and save more than $1,000 above living and business expenses. Since their separation appellant has, according to his own testimony, been able to pay his wife $50 per month and household expenses in addition. This voluntary action of appellant, standing alone, is strong evidence of his ability to pay the award in question. While the cause is tried ele novo here, the court below, who heard the testimony, is in a much better position to pass upon the reasonableness of the alimony awarded than the judges of this court could possibly be.
On the whole case, in the present circumstances in which we find the parties, we conclude that the decree is not against the preponderance of the testimony and accordingly we affirm. | [
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Grieein Smith, C. J.
Appellant thinks an order of the White chancery court made September 14, 1940, dismissing plaintiffs’ complaint for want of equity, should be reversed because the court assumed jurisdiction in respect of an appeal from probate to circuit court involving a deficiency judgment; also, it is insisted error was committed when the court (March 9, 1936) confirmed a commissioner’s sale and directed execution of deed.
In. a suit filed in June, 1940, by F. B. Redus and others against T. W. Wells, administrator, and Commonwealth Federal Savings & Loan Association, it was alleged that the plaintiffs were creditors of M. H. Creer, who died November 11, 1935. Greer left a will in which P. D. Phillips was named executor. By an order of probate court Phillips was removed as executor, and Wells was designated administrator. In 1929 Greer and his wife borrowed $1,700 of Commonwealth Building & Loan Association under the methods then employed by building and loan associations, and as an incident mortgaged certain property in Searcy. Default having occurred in making monthly payments, suit was filed October 30, 1933, seeking foreclosure, the debt then amounting to $1,460.09. Decree was entered June 11, 1934. There was delay (seemingly in an effort to accommodate the debtors), and a receiver was appointed October 8, 1934. Rents were thereafter collected and paid to the mortgagee.
Sale was had October 8, 1934, under the decree of June 11. Objection to confirmation was interposed, and •by consent deferred. However (April 8, 1935) there was confirmation, with delivery of deed to the purchaser, Commonwealth Building & Loan Association, on its bid of $1,200.
June 10,1935, in response to a petition by the Greers, who proposed to pay $200 on the judgment (in addition to rents then in the hands of the mortgagee) confirmation 'was set aside and the deed canceled. The complaint contains this paragraph: .
“On December 9, 1935, the cause was passed. February 10, 1936, Commonwealth Federal Savings & Loan Association asked that the cause be revived, but no proper order of revivor was ever made or served upon the executor or administrator, ... or upon his heirs or his creditors.”
It is then alleged that the order of March 9, 1936, approving the sale, was wrongfully obtained; that the deficiency claim of $492.52 filed [in probate court] was improperly approved by the chancellor; that fraud was practiced upon the court by Commonwealth Federal Savings & Loan Association in that the original obligation, if any, was in favor of Commonwealth Building & Loan Association, a defunct corporation; that “said defendant is not and-never was a party to said foreclosure proceedings'and it does not pretend to show what interest, if any, it has in the assets of the mortgagee, the Commonwealth Building & Loan Association. ” It is further alleged that the claim, upon its face, shows an excess charge of $159.22, "which renders it usurious and fraudulent.”
In a suit filed September 24,1940, by D. D. Thornton, administrator in succession, an allegation was: "Should the deficiency claim be allowed, defendant [Commonwealth Federal Savings & Loan Association] will receive more than $500 in excess of the amount due it on the judgment debt, and all other beneficiaries of the estate will suffer in the same proportion, which in effect would be a fraud upon their rights.”
Other facts are stated in the briefs, but are not essential here.
There was no appeal from the decree of foreclosure. It appears to have been acquiesced in. Appellant, however, insists that ". . . the order of June 10, 1935, set aside and canceled the sale.” We do not agree that this was the effect of the decree, which contained the following paragraph:
"It is therefore ordered, adjudged and decreed that the confirmation of the sale herein be canceled and set aside; that the commissioner’s deed issued thereon be also canceled and ,the title to the property described herein be and the same is hereby vested in the defendants, subject, however, to the plaintiff’s judgment, and also subject to the sale hereinbefore had wherein the plaintiff was the successful bidder.”
The purpose (expressed, we think, but if not, then certainly implied) was to preserve the decree of foreclosure and the sale pursuant thereto.
If the court’s action of February 10, 1941, in sustaining appellee’s demurrer to the complaints in the con solidated causes should be reversed, the judgment and sale would stand. Approximately six years have intervened, and five years have passed since the sale was set aside'on request of the mortgagors, with payment of $200 on the judgment. The first order of confirmation (April 8, 1935) was set aside because rendered on the fifth day of the term. It is now insisted that the confirmation order of March 9, 1936, should be set aside because, as it is alleged, the decree was rendered on the fourth day of the term. We think appellants have overlooked act 84, approved February 14, 1925, which provides that “For the purpose of expediting business in the chancery courts of Pulaski, Lonoke, White, and Prairie counties, the chancery courts of said counties shall always be open for the transaction of business, and may hear cases and render decrees in said counties at any time.”
Of course the subsequent act would control if the two conflict. But we do not think there is a conflict. Purpose of the 1935 enactment was to liberalize time in favor of an harassed debtor; therefore, foreclosures and orders confirming sales were restricted to the first three days of a regular term of court. When, however, there is no regular term, and action of the court shows conclusively that every indulgence has been favorable to the debtor, it is difficult to see how the letter or spirit of the law has been transgressed.
We are also of opinion that appellants are guilty of laches. They have stood by since 1936 and permitted appellee to make improvements on the property, and sell it. Even now there is no offer to pay the debt, or to bid on the property if it should again be offered for sale. As was said in Nobles v. Poe, 121 Ark. 613, 182 S. W. 270, laches is not mere delay, but, rather, delay that works disadvantage to another. The disadvantage may arise from change of title, or intervention of equities and other causes.
Jackson v. Becktold Printing & Book Mfg. Co., 86 Ark. 591, 112 S. W. 161, 20 L. R. A., N. S., 454, was a suit to set aside a foreclosure decree alleged to have been ren dered in vacation. It was held that the action was barred by laches because plaintiff, knowing the facts, waited nearly five years before bringing suit. In the meantime defendants 'became purchasers of the land, sold large quantities of timber from it, changed the fences, and used the property as owners by purchase under a valid decree.
No possible relief is available to appellants if we should hold that the chancellor erred in not setting aside confirmation and cancelling’ the deed, unless the decree of foreclosure and sale may also be avoided. It is not in conformity with practice to overrule the chancellor and reverse a decree where no fraud is found, and where as in the case at bar, the transaction occurred nearly six years prior to the filing of the suit for cancellation.
The parties could not by consent confer upon chancery the power to adjudicate an appeal taken from probate to circuit court; and this is true notwithstanding the probate courts are presided over by chancellors. Wooten v. Penuel, 200 Ark. 353, 140 S. W. 2d 108.
The case is unlike Sewell v. Benson, 198 Ark. 339, 128 S. W. 2d 683, where it was held that, although a curator’s final settlement had been approved by the probate court, with discharge of the curator, equity had jurisdiction of a complaint in which it was alleged that a conspiracy had been formed to defraud minors, and that in execution of the scheme fraud had been perpetrated upon the probate court. It was held that, since the probate court could not grant full relief, recourse might be had to chancery. In the instant case the appeal was pending in circuit court, where it had been lodged prior to the effective date of Amendment No. 24 to the Constitution. The appeal, therefore, will be considered as undisposed of.
Finally, it is insisted that Commonwealth Building & Loan Association, and the judgment creditor, Commonwealth Federal Savings & Loan Association, are not identical. Records show that Commonwealth Savings & Loan Association filed certified copy of its charter with the state bank department December 16, 1935. Application was made by Commonwealth Building & Loan Association to Federal Home Loan Bank Board, Washington, D. C., for permission to “convert itself” into a federal savings and loan association. There is identity of ownership of assets, and no prejudice to appellants can result.
The order of confirmation and approval of the commissioner’s deed is affirmed. As to the deficiency judgment, it is remanded to circuit court. As modified, the decree is affirmed.
Administrator in succession of thé estate of M. H. Greer, deceased.
A balance of $492.52 alleged by appellee to be due in connection with foreclosure decree was allowed by probate court as a claim of the second class. An appeal was taken to circuit court, and by consent transferred to chancery. It was allowed by chancery court.
Case No. 863 (F. B. Redus and others) and Case No. 912 (D. D. Thornton, administrator) were consolidated by an order dated February 10, 1941, which recited that the decree in Case No. 863 should be set aside “. . . except as to the finding of fact set forth therein that there was no fraud.”
Italics supplied.
Act 21, approved February 9, 1933; Act 49, approved February 18, 1935. Pope’s Digest, § 9479.
See Horn v. Hull, 169 Ark. 463, 275 S. W. 905; Clark v. Wilson, 174 Ark. 669, 297 S. W. 1008; Tatum v. Arkansas Lumber Co., 103 Ark. 251, 146 S. W. 135. | [
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Smith, J.
Dr. A. F. Hoge is and for a number of years has been a resident of Sebastian county in which county he sustained, on July 22, 1940, a. personal injury, which he alleged was occasioned by the negligence of the Fort Smith Gas Company, a corporation, hereinafter referred to as petitioner. On November 4, 1940, he filed suit in the Crawford circuit court against petitioner to recover damages to compensate this injury, and obtained service of summons upon petitioner according to the venue laws as they existed on that date. The service of summons was had on the day on which the suit was filed.
At the 1939 session of the General Assembly, act 314 was passed, entitled, “An act to fix the venue of actions for personal injury and death.” This act, exclusive of its emergency clause, which failed of adoption, reads as follows:
“Section 1. All actions for damages for personal injury or death by wrongful act shall be brought in the county where the accident occurred which caused the injury or death or in the county where the person injured or killed resided at the time of injury, and provided further that .in all such actions service of summons may be had upon any party to such action, in addition to other methods now provided by law, by service of summons upon any agent who is a regular employee of such party, and on duty at the time of such service.
“Section 2. This act shall not repeal any provision for venue of actions except such as are inconsistent herewith and all laws and parts of laws in conflict herewith are repealed.”
Upon proper petitions the act was referred to the people to be voted upon at the ensuing general election held November 5, 1940, and it was not, therefore, a law when the suit was filed.
After the adoption of the act by the electorate of the state, and before the trial of the cause, petitioner moved to dismiss the pending case, upon the ground that the Crawford circuit court had lost jurisdiction thereof. This motion was overruled, whereupon the defendant petitioner applied here for a writ of prohibition against the judge of the Crawford circuit court.
Act 314 is a venue act, and its purpose and effect is to localize personal injury actions; but the respondent circuit judge says that the act does not apply here,' for the reason that the complaint had been filed and service thereon had in accordance with the law as it existed prior to the passage of act 314. His insistence is that it was the legislative intent to make the act apply to actions brought after the act became effective, but not to suits pending- when it became effective. In support of this contention many of our own cases are cited, as well as cases from other jurisdictions, which hold that it is a settled rule of law that all statutes must be construed to be prospective only in operation unless otherwise expressly declared, or a clear intent otherwise is shown.
The service in the instant case was had under the authority of § 1398, Pope’s Digest, and was valid when had. This section is a venue act, but so also is act 314, and the effect of-the later act is to. repeal § 1398, Pope’s Digest, in so far as it relates to personal injury actions. The clear and express purpose of act 314 is to require personal injury actions to be brought (a) in the county where the injury occurred, or (b) in the county where the plaintiff resides. The injury did not occur in Crawford county, and the plaintiff is not a resident of that county.
The Crawford circuit court derived its jurisdiction to try the case pursuant to the service had under the provisions of § 1398, Pope’s Digest, but the provisions of that section have been repealed in so far as they relate to personal injury actions.
At § 172 of the chapter entitled “Courts,” Yol. 14, Am. Jur., p. 372, it is said: “Whenever a statute from which a court derives its jurisdiction in particular cases is repealed, the court cannot proceed under the repealed statute, even in suits pending at the time of the repeal, unless they are saved by a clause in the repealing statute.” Act 314 has no saving.clause as to pending suits.
What was the purpose of act 314? The answer must be to localize personal injury actions, and to require that they be brought in the county where the injury occurred or where the plaintiff resides, and to repeal so much of § 1398, Pope’s Digest, as previously permitted them to be brought in any county where service might be had on the defendant; and, of course, it was contemplated that they be tried in the county in which they must be brought. The necessity for the legislation, real or supposed, would apply as well to pending suits as to those thereafter brought, and the act contains no saving clause as to pending suits.
The argument is made that “shall” is a future auxiliary, and Webster’s Few International Dictionary so defines it; but counsel for respondent cite many cases holding that “shall” is frequently used as a synonym of “must.” Act 314 declares the public policy in regard to actions of this character, and this policy would apply alike to suits pending when the act became effective as well as to those thereafter brought in the absence of a saving clause as to pending suits.
The opinion in the case of Roberson v. Roberson, 193 Ark. 669, 101 S. W. 2d 961, is in point upon this subject. That case construed act 61 of the Acts of 1935 (§ 1302, Pope’s Digest), commonly referred to as the Guest Statute. That act denied the right of one riding in an automobile as the guest of another to recover damages sustained while riding as a guest except under certain designated conditions. Its effect was to destroy a cause of action which had previously existed. The plaintiff in that case was injured August 23, 1934, and filed suit against his host August 13, 1935. Between those dates act 61 became effective. The act did not provide that it should be retroactive, and it was, therefore, insisted that it did not apply to a cause of action which had accrued before its passage.
Upon a review of the authorities we held that the act did apply to causes of action which had accrued prior to its passage, notwithstanding the act did not expressly declare that it should have retroactive effect, and among the cases there cited was that of Hazzard v. Alexander, 6 W. W. Harr., 212, 173 Atl. 517, from which we quoted as follows: “The view of the Legislature is that suits against owners or operators of automobiles by or on behalf of gratuitous passengers to recover damages arising out of ordinary negligence constitute an evil to be suppressed. Striking directly against that evil, it is not to be supposed that the General Assembly, not having incorporated in the act a saving clause, had a cer tain sympathy for accrued rights of action, but none for actions yet to arise, and therefore purposed to preserve and protect accrued and pending actions.’ ” Here, the legislative purpose was to make personal injury suits local, and not transitory, as they had been prior to the passage of act 314, and in the absence of a saving clause as to pending suits there is no reason to believe that the change of policy should not apply to all cases which had not been reduced to judgment.
In the ease of State, ex rel. Attorney General v. Anderson-Tully Co., 186 Ark. 170, 53 S. W. 2d 17, 85 A. L. R. 100, the construction of an act was involved which provided that no proceeding should thereafter be brought or maintained for back taxes except for actual fraud on the part of the taxpayer. The act did not provide that it should be retroactive, yet it was held to apply to suits pending at the time the act became effective, for the reason that the suit could not be maintained on a cause of action which had ceased to exist.
Here, the legislative "will is that for one to recover damages to compensate a personal injury he must sue therefor either (a) in the county in which he was injured or (b) in the county in which he resided at the time of his injury; and there is no exception or saving clause in favor of pending suits.
In opposition to awarding the writ here prayed for we are cited to § 13284, Pope’s Digest. This is an old statute, brought forward from § 31 of chapter 129 of the Revised Statutes, and has been frequently cited by this court. The latest case to which our attention has been called citing it is the case of McAllister v. Wright, Trustee, 197 Ark. 1156, 127 S. W. 2d 645. That case cited and reaffirmed the case of Carle v. Gehl, 193 Ark. 1061, 104 S. W. 2d 445. In this Carle v. Gehl ease the provisions of act 142 of the Acts of 1935, curing certain defects in tax sales, were relied upon, it being in force when the judgment appealed from was rendered, but pending the appeal act 142 was repealed. Upon the authority of § 13284, Pope’s Digest, then appearing as § 9759, Crawford & Moses’ Digest, there quoted, we held that the rights conferred hy act 142 had been continued in force and effect. In other words, § 13284, Pope’s Digest, preserved rights in existence under other statutes, which were not divested by the repeal of the law under which those rights had accrued.
We adhere to that position; but we do not think it was the purpose of § 13284, Pope’s Digest, to prohibit the passage of subsequent legislation regulating the venue of actions to enforce existing rights, nor to regulate the procedure under which those rights might be enforced.
Act 314 does not divest the plaintiff of his right to sue to recover damages to compensate his injury. That right now exists, and may be enforced in the proper forum. Act 314 merely prescribes the venue of the action — the court or courts in which the suit may be prosecuted. It is a venue statute, and § 13284 was not intended to confer a vested right in a matter of procedure. It is not contended that the plaintiff has any such vested right, and it is conceded that the General Assembly had the power to prescribe the venue, and many cases are cited in the brief of petitioner to sustain that proposition. The contention of respondent is that the General Assembly has not exercised that power; but, for the reasons herein stated, we think it has, and that the venue of the action has been localized in' Sebastian county, where the injury occurred and where the plaintiff resided at the time of his injury.
In the case of Yocum v. Oklahoma Tire & Supply Co., 191 Ark. 1126, 89 S. W. 2d 919, it was held that act No. 70 of the Acts of 1935, providing for the service of process upon agents and employees of owners and operators of buses, coaches and trucks, etc., over the highways of this state, applied to a cause of action which arose prior to the passage of said act. There, a plaintiff who was injured on January 23,-1935, obtained service under the provisions of act 70, passed subsequent to the date of his injury. The sufficiency of this service was upheld, it being there said: “The act is necessarily and exclusively procedural in its scope and effect and must ¡be construed and applied as such. We have repeatedly held that under procedural acts a case must be determined on the law as it is at the time of the judgment unless the contrary appears from its contest. (Citing cases.)”
Act 314 does not divest the plaintiff of any substantive rights. His rights remain. It is a procedural statute, which prescribes the venue or forum in which his rights may be adjudged and enforced.
We conclude, therefore, that the Crawford circuit court is without jurisdiction to proceed with the trial of this case, and -the writ will be awarded.
Humphreys and Mehaeey, JJ., dissent. | [
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Holt, J.
September 15, 1939, Bill Benson executed a note in favor of appellant, May Way Mills, Inc., in the amount of $372.40 in payment for 1,000 “Barred Rock” chickens and the necessary feed to prepare them for the market. On the same date, to secure payment, Benson executed a chattel mortgage on the chickens in question and two Jersey cows. The mortgage was duly filed with the recorder of Washington county, Arkansas, in compliance with the statute. (Section 9434, Pope’s Digest.)
January 23, 1940, while the lien of this mortgage was in full force and effect, Benson sold to appellee, Jerpe Dairy Products Corporation at Fayetteville, Arkansas, 656 of these chickens, but failed to account to appellant for any part of the proceeds from this sale.
July 12, 1940, appellant brought suit against Bill Benson on the note in question and against appellee, Jerpe Dairy Products Corporation, alleging “. . . that said sale was made without the knowledge of or notice to plaintiff, and that plaintiff has never received any part of the purchase price of said mortgaged property; that said sale constitutes a conversion of the said property, and that the purchaser, Jerpe Dairy Products Corporation, defendant herein, is liable to plaintiff for a conversion of the mortgaged property,” and asked that the mortgage be foreclosed and for judgment against Benson and appellee for $476.53, plus interest and costs.
Appellee defended on the ground that the chickens had been sold to it with the consent of the mortgagee, May Way Mills, Inc., (appellant here), and that appellant had thereby waived its mortgage lien.
Upon a trial, the court entered a decree against Bill Benson in the amount of $474.19, and further decreed (quoting from the decree): “. . . that said sum is secured by a valid duly filed chattel mortgage upon two Jersey cows and the balance of 1,000 Barred Rock chickens after deducting 656 chickens sold to defendant, Jerpe Dairy Products Corporation, on January 23, 1940; that the said plaintiff’s chattel mortgage included the said chickens sold to Jerpe Dairy Products-Corporation and that said defendant bought said chickens from Bill Benson and paid therefor the sum of $306; that said sale to Jerpe Dairy Products Corporation was made without the knowledge of or notice to the plaintiff; that before the sale of said chickens to defendant, Jerpe Dairy Products Corporation, the said plaintiff gave defendant, Bill Benson, permission to sell said chickens.”
The court then declared the judgment against Bill Benson to be a first lien on the remainder of the 1,000 chickens, after deducting the 656 head sold to appellee, and a first lien on the two Jersey cows described in the mortgage, ordered foreclosure, and dismissed the cause as to appellee. Prom this decree appellant has appealed.
The question for determination here is: Did appellant waive the lien secured to it by the chattel mortgage in question, by consenting to the sale of the chickens to appellee?
It is undisputed that the chattel mortgage in question was on file and covered the chickens which Benson sold to appellee. On the question presented the rule governing is stated by this court in Mitchell v. Mason, 184 Ark. 1000, 44 S. W. 2d 672:
“This court has held that the sale of mortgaged property by the mortgagor without the knowledge or consent of the mortgagee constitutes a conversion of the property and that both the mortgagor and the purchaser are liable to the mortgagee for a conversion of the mortgaged property. Sternberg v. Strong, 158 Ark. 419, 250 S. W. 344.
“On the other hand, if a mortgagee consents to a sale of the property by the mortgagor, the purchaser takes title free from the lien. In such cases, the waiver on the part of the mortgagee may be established by oral evidence, which may be direct and positive, or may be established by circumstances surrounding the transaction. Fincher v. Bennett, 94 Ark. 165, 126 S. W. 392, and Vaughan v. Hinkle, 131 Ark. 197, 198 S. W. 705. In these eases, the court expressly held that, where a mortgagee verbally authorizes a mortgagor to sell the property and the property is sold to a bona fide purchaser for value, the latter acquires a good title, whether he knew of the existence of the mortgage or not. ’ ’
The mortgage here contains this provision: ‘ ‘ Should I, prior to the payment of said indebtedness, sell or at tempt to sell, ship, remove, or otherwise dispose of the property herein conveyed, or any part thereof, without the consent in writing of the said May Way Mills, Inc., . . . then . . . the said May Way Mills, Inc., . . . is hereby authorized ... to take charge of said property on demand without process of law, and sell and dispose of same, or as much thereof as will be necessary at public sale. . . .”
Appellee does not claim that appellant gave written consent to Benson to sell the chickens in question, but that it gave its oral consent, and attempts to establish this contention largely by the testimony of two witnesses: Wood Benson, a brother of Bill Benson, the mortgagor, and Jim Lewis, agent of appellant.
Wood Benson testified: “Q. Did you hear the conversation between Bill and Mr. Lewis about selling the chickens or their being ready for sale? A. Yes, Mr. Lewis said they were ready for sale. Q. What else did he say? A. He said the price was as good as he thought it would be. Q. Did he advise him to sell them? A. Yes. Q. You heard that conversation? A. Yes. Q. You heard him say that? A. Yes. Q. That was, you think, about ten days before Bill did sell? A. Yes.”
And on cross-examination Wood Benson testified: “Q. How did he advise him? If he didn’t tell him to (sell them), how did he advise him? A. He told him the chickens were ready to sell and the price was pretty good, as high as he thought it would be. Q. But he never did tell him to sell them? A. Not at any special date. Q. He never told him to sell them, he just said they were ready? A. I believe that’s right. Q. And that the price was right? A. Yes. Q. But he didn’t tell him to go sell the chickens? A. I don’t believe he did.”
Jim Lewis testified that he was appellant’s agent, sold its feed and handled its business in Washington county, and quoting from his testimony: “Q. Did you at any time tell Mr. Bill Benson to sell his chickens? A, No, sir, I had no right to, Q. Did he ever tell you lie was going to sell? A. No. Q. Did you have any knowledge, otherwise than this you tell about, that he was going to sell his chickens? A. No, sir. . . . Q. Do you deny telling him to go sell the chickens? A. I did not. Q. How were you aiming for them to get on the market? A. That’s his lookout. I wasn’t at the selling end of it at all. Q. He was? A. He did. Q. If you weren’t, who was? A. The grower sold them, I guess. - Q. There was nobody else to sell them but you or him, was there? A. I had no right to. Q. Was there anybody else who could? A. May Way Mills could, I guess. ...
“Q. How long had it been before you had seen these chickens until they were sold? A. A week or ten days. Q. You knew they'were about ready for market? A. Yes. Q. And you knew you weren’t going to sell them? A. Yes. Q. And you knew Mr. Tribble wasn’t going to? A. No, I didn’t. . . .
“Q. Did you advise him to sell? A. No. Q. What did you think he was going to do, keep them? A. I didn’t care. I didn’t care if he ate them. Q. You knew they were grown for the broiler market? A. Yes. Q. You knew they had to be sold on that market when they were ready ? A. Yes. . . . Q. And you.knew you weren’t going to sell them? A. Yes. Q. You knew Bill had to; you didn’t tell him not to? A. No. Q. You knew he had to sell them when they were ready? A. That was his job. Q. You expect that of all growers? A. Yes. Q. And you trust them to pay the balance when the chickens are sold? A. They’re all notified to make the check to May Way when they sell the chickens. . . .
“Q. You had told other growers to sell their chickens? A. Since then, I have. . . . Q. These people I have asked you about, you say you didn’t tell them to sell; that they did sell their chickens, but settled with the company? A. Yes. Q. You trusted Bill Benson to do the same thing? A. Yes, sir. Q. You say you expected them to sell their chickens when they were ready? A, YpsW
Appellee’s manager, George Melburn, testified that Benson called Mm on the 22d of January, 1940, asking for a price on the chickens, and a few minutes later came to the plant and sold him the chickens. The next afternoon appellee’s truck went out and got the chickens and delivered them around 6:00 p. m. “I asked him how he wanted the check made out and he (Bill Benson) said, ‘Make it to me.’ I said, ‘No one has any equity in the chickens beside you?’ and he said, positively, ‘No.’ I talked about it. He said, ‘I’ve been buying my own feed and paying cash, so make the check to me. ’ Under the conditions, it was late at night, that was all I could do. He was in a hurry, and we made the check out to him and gave it to him and he left with the check. ’ ’
Benson cashed the check at a Fayetteville bank early the next morning, January 24th.
The morning of the 24th, after the sale, appellant learned about it, complained to appellee that appellee had bought chickens on which appellant had a mortgage. Whereupon appellee attempted to stop payment on the check, which it had given to Benson, but was informed by the bank that the check had already been cashed.
Benson did not pay to appellant any of the proceeds from the check in question.
There is other evidence in the record, which we do not deem it necessary to abstract. After a careful review of all the testimony we have reached the conclusion that a preponderance thereof supports the contention of appellant that it did not consent to waive the lien of its mortgage in this cause and that the court erred in holding otherwise.
The chattel mortgage here in question was on file at the time Benson sold the chickens to appellee and appellee was bound to take notice thereof and bought subject thereto. We think the most that can be said of Lewis’ testimony, in support of appellee’s position, is that as appellant’s agent he called on Benson, from time to time, to note the development of the chickens and when they had reached the marketing stage, to make sug gestions to Benson as to the best time that Benson should market them. He did not order Benson to sell or to do anything. While the chickens belonged to Benson, yet under the express terms of the mortgage he could not sell or dispose of them without the written consent of appellant. Nowhere in Lewis’ testimony did he direct Benson to sell the chickens. In fact the actual sale to appellee by Benson was not made until almost ten days after Lewis ’ last conversation with Benson.
Wood Benson, the mortgagor’s brother who heard Lewis’ conversation with Bill Benson, did not testify that Lewis told his brother to sell the chickens, but what he did say in this connection was: “Q. But he (meaning Jim Lewis) did not tell him (meaning Bill Benson) to go sell the chickens? A. I don’t believe he did.”
There had never been any previous similar dealings between appellant and Bill Benson,'but even had there been the result would have been the same in the circumstances here.
In Imperial Valley Savings Bank v. Huff, 126 Ark. 281, 190 S. W. 116, this .court said: “The mortgage in question contained a clause providing that the mortgagor should not sell the property without the written consent of the mortgagee or remove it from the county. It is insisted by the appellee that appellants waived this provision of the mortgage. They relied on the testimony of the cashier of the bank to sustain their contention. . . .
“On cross-examination the cashier admitted that there had been one or two mortgages executed by Phillips in favor of appellants before this time, and that they had permitted him to sell the cattle and apply the proceeds to the mortgage. The fact that they had done this on two previous occasions does not show that they gave Phillips the right to sell the cattle embraced in the mortgage under consideration and apply the proceeds to the payment of the mortgage debt.”
In Morton v. Williamson, 72 Ark. 390, 81 S. W. 235, there was involved a provision in a chattel mortgage similar to the one here and this court said: “The mortgage contained this provision: ‘But in default of payment hy the time specified, or should we suffer to he removed or disposed of, or attempt to remove or dispose of any of said personal property, then said Williamson Bros, are hereby empowered to take immediate possession of any or all of such property. . . .’ This was notice to appellant that the mortgagors had no right to remove or dispose of any of the lumber without the consent of the mortgagees, and it was sufficient to put appellant upon inquiry as to the right of the mortgagors to make the sale to him.”
As indicated, we think the preponderance of the testimony shows that appellant did not consent to waive the lien created by its mortgage and we hold that appellee bought the chickens in question subject to appellant’s lien.
For the error indicated, the decree is reversed and the cause remanded with directions to the court to proceed in conformity with this opinion. | [
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Grieein Smith, C. J.
Charlie Str-awn, a.mill worker forty-six y#ars of age, killed his wife in circumstances which caused a jury to find him guilty of first degree murder. The death penalty was assessed.
This appeal questions the trial court’s action in giving certain instructions, in refusing to give other instructions, in admitting evidence relating* to prior crimes it was intimated the defendant had committed, and in permitting the prosecuting attorney to argue the case in an inflammatory manner.
Our conclusion is that the only error occurred when the court instructed on murder in the first degree, malice and premeditation not having been shown by substantial evidence.
Appellant, at the age of eighteen, married Nellie Vance, who at that time had a three-year-old illegitimate son. Five children were born to Nellie and her husband, three of whom survive.
The prosecuting attorney, as expositor of appellant and .his family, drew comparisons to “wolves, rats, dogs, and other lower animals.” The record points with certitude to family life .devoid of moral integration. Hus-' band and wife were addicted to drink. Profanity and foul language were the usual media of communication. The children had grown so accustomed to turmoil that they gave but little heed if mother or father merely swore at the other, or if in accent tinctured with verbal venom they invoked an alliance with unseen powers in aid of a purpose to damn.
A neighbor spoke of Nellie as a hellcat who, knowing of a murder her husband had committed, used threats of exposure as a means to an end. Fighting seems to have been engaged in as an outlet for strange emotions, while alcoholic beverages contributed their potentials in provoking controversy and creating false courage.
Ed Strawn, a married son of appellant, at whose home the drama of death was enacted, did not sense a note of seriousness when his father and mother exchanged maledictions for imprecations; nor was he emotionally disturbed by the victim’s screams, for evidence is that he left the comfort of his 'bed only when urged to do so— and this did not occur until his mother’s struggles had ceased. The only substantial service rendered by this young man consisted in a casual direction to his father not to strike the prostrate woman with a stick; and then, upon discovering that the conflict had been more brutal than usual, he carried his dead mother into the house and called a doctor. A short time later, after the body had been taken to an undertaking establishment, this unusual son retired to the bed from which his mother’s corpse had just been removed, and when officers arrived three hours later he was sleeping so soundly that difficulty was experienced in arousing* him.
Appellant’s testimony is a composite of native shrewdness prompted by the natural law of self-preservation, and an apparent frankness indicating an absence of malice. It negatives the state’s contention that the crime was premeditated. Charlie Webb, only eye-witness to the fight, testified that appellant replied to a statement that he had killed Nellie: “Hell, no; it will take more than that to kill her.” When appellant was asked why (in view of testimony that Mrs. Strawn was usually the aggressor when difficulties arose) he did not leave his wife, the reply was, “She had raised me a family.”
Two physicians testified the decedent’s neck had ■been broken; that fractured vertebrae were shown by X-ray films. Another physician thought differently. There was a bruise on the head, with indentation, but neither the skin nor the skull had been broken. Testimony was that Mrs. Strawn struck appellant with a rock; that the fight occurred on the front porch of Ed Strawn’s home; that two or three hairs resembling those of the dead woman (and fabric from her dress) were found on a piece of “two by four” timber, this being the stick held by appellant when the son directed that it be not used. The witness Webb, when about a hundred yards from the house, saw appellant and his wife “go together. ’’ There is this testimony: “Appellant slapped his woman three or four times. She was screaming like she was screaming for her life. She fell. I don’t know whether Charlie knocked her down, or she fell in the scuffle. After she got down she ‘hollered’ about once and quit right at one time. He went down on the ground with her and struck her three or four licks. I walked within nine steps of them, 'but I just kept walking. ’ ’
Appellant, after describing preliminary movements of the family, testified: “My wife was cursing and foaming, and her face was red. I have seen her have lots of mad spells that way, and didn’t pay any attention. We walked up to [Ed’s] house. I started to open the door. [My wife] was right behind me, jerking, ‘hollering,’ and shouting. It was just as I reached the door she hit me with something, but it was not a hard lick. I turned around and she was spewing and sputtering. ... I pushed her back. She was hysterical.....She got me at the bib of the overalls and I never did push her loose. About that time I pulled backward off the little porch. There were some [cut-offs from the mill, used for fuel] scattered around out there; some ‘two-inch,’ some ‘one-inch.’ and some ‘ship-lap.’ ¥e stumbled around with her holding to my overalls — stumbled off the little porch and kept going backward until we were in the pile of cut-offs, and fell. She hit on her left side and I went across her. I got up and picked up that stick. Ed was standing there in his B. V. D.’s and he said, ‘Dad, throw that stick down; you ain’t going to hit her with that.’ She was not screaming, so I dropped the stick and went on in the house.”
If it should be said that circumstantial evidence supports a theory that appellant used' the “two-by-four” as a club, it may also be said that the disinterested eye-witness,-Webb, who was called by the state, testified that appellant only used his fists. It is equally. clear that Mrs. Strawn’s neck could have been broken by the fall, and this possibility would be greater if appellant’s body fell upon her. Other witnesses testified to conditions of intermittent belligerency existing between the couple. While it was competent for the jury to find that death was produced by the beating administered, we think the record fails to disclose a murderous intent. Appellant’s statement that “It would take more than that to kill her,” while abhorrent and repulsive, indicates he did not think Mrs. Strawn was dead; and the practice of fighting, both formally and informally, had created in the minds of the participants a blurred psychology in accord with the husband’s wanton conduct — a concept quite difficult for orderly minds to comprehend, yet a condition for which society is in a measure responsible.
Because of the court’s error in instructing the jury as it did (the elements of premeditation and deliberation not having been proved) the judgment will be modified by substituting second degree murder for murder in the first degree, the sentence to be 21 years in the penitentiary. As modified, the judgment is affirmed. It is so ordered. | [
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Holt, J.
July 5,1940, appellee, Southern Coal Company, Inc., brought suit against Arthur L. Rains, Rains Coal Corporation and Ben H. Bedwell, appellants, to cancel a coal mining lease contract and for possession of the property described in the lease. The lease contract is made a part of the complaint. As grounds for cancellation and possession of the leased property, the complaint alleged, among other things, the insolvency of the lessees; that they had abandoned the property; and had committed waste and had breached the terms of the lease contract. A demurrer by the defendants below to the complaint was overruled. They then answered denying every material allegation in the complaint and alleged that appellee had breached the terms of the lease contract thereby preventing continued performance thereof by the lessees. Along with the answer, the lessees (defendants below) filed a “counterclaim” against appellee in which a large sum was sought as damages.
■ Upon a trial the chancellor found the issues in favor of appellee (plaintiff below) and quoting from the decree:
“The court further finds that on September 30,1939, plaintiff entered into a written lease contract with the defendant, Arthur L. Rains, whereby it leased to him the mining property and equipment described in said lease contract and the inventory attached thereto; that said lease was transferred and assigned to said Rains Coal Corporation, and said property was used by it in operating its mine until February 15, 1940, when it ceased operations; that said defendant was insolvent and that it abandoned said,lease and property, and forfeited said contract; that plaintiff is entitled to the cancellation of said lease and to immediate possession of all property therein described, and to the relief prayed against the said defendant, Rains Coal Corporation.
£ £ The court further finds that the defendant, Arthur L. Rains and Ben H. Bedwell, have no right, title, claim, interest or equity in or to said lease, or the property therein described and that they are not personally interested therein, and that the complaint should be dismissed as to them.”
Accordingly the lease contract in question was ordered canceled and all rights thereunder of the lessees annulled. It was decreed that appellee (plaintiff below) be given immediate possession of the leased property and that the complaint be dismissed as to Arthur L. Bains and Ben H. Bedwell. From this decree appellant, Bains Coal Corporation, has appealed.
Under the terms of the lease contract appellee, as lessor, leased to Arthur L. Bains all the mining machinery, equipment, and appurtenances, tracks and tipple situated on the land in Sebastian county, Arkansas, described in the lease for a term of three years. This lease was assigned to appellant by Arthur L. Bains.
The lease provides, among other things, that the property was leased to appellant “for the purpose of using the same in mining and removing the coal lying underneath said described premises and such adjoining lands as the lessee may hereafter acquire, by lease or otherwise, upon the conditions hereinafter stated . . .; ” that the lessee pay for the use of the leased property twenty-five cents per ton for all coal removed from the premises and adjoining lands and a minimum annual royalty of not less than $2,500 for the first year and $3,750 for the remaining two years of the lease term.
The lease further provided “that if at any time the said lessee, or the corporation to be organized by him, shall become insolvent, or if waste be committed,, or if said leased property, or any part thereof, is attached, seized or levied upon, then, in any or either event, the said lessor shall be entitled to immediately terminate this lease. . . . Said lessee further agrees to procure and maintain at his sole expense insurance against loss and damage by fire and tornado on said leased property in one or more reliable insurance companies to be approved by lessor, in the sum of ten thousand ($10,000) dollars, with loss payable clause in favor of said lessor.”
The lease further provided: “Upon the expiration or termination of this lease, said lessee agrees to surrender and deliver up to the lessor the possession of said property in as good condition as the same is now in, ordinary wear and tear excepted. . . . Said lessee cove nants and agrees to take good care of all of said leased property and to make all necessary and proper repairs and replacements thereto, and to at all times preserve and protect all said machinery, equipment, appliances and appurtenances situated in said mine, and that all such repairs and replacements as shall be necessary on said property, shall be made at the sole cost and expense of said lessee.”
It is also provided that if lessee “fails to keep and perform any or all of the covenants and agreements herein specified upon his part to be kept and performed, then said lessor, shall be entitled to give said lessee thirty days’ notice in writing of such default, and in the event the said lessee fails to fully comply with and perform all such requirements of said lease within said period, the said lessor shall thereupon be entitled to immediately declare this lease forfeited.
There was a further provision that the lessee should not allow the water in the mine to rise above the third east entry, nor waste to be committed.
It is undisputed that appellant operated the mine under the lease agreement until February 15,1940, or for a period of approximately five months. November, 1939, mining operations in the mine broke into an adjoining abandoned mine from which large quantities of water flowed into the leased mine, causing, the death of four employees of appellant. February 15, 1940, suits were brought against appellant claiming total damages as a result of these deaths in the amount of $140,000. Garnishments were immediately served on the Farmers Bank at Greenwood, the Frisco Railroad and appellee, and the funds and property of appellant were impounded to apply on these death claims. Following the filing of the above damage claims and the impounding of appellant’s funds, appellant, Rains Coal Corporation, filed a voluntary petition in bankruptcy and it was adjudged a bankrupt on February 26, 1940. It filed its verified schedule of assets and liabilities, listing debts of $154,795.53 and assets, $12,712.47. The listed debts, other than the death claims, amount to $14,795.53, or $2,083.06 in excess of all assets. The four death claims were settled for a total of $3,000.
After mining operations ceased on February 15, 1940, water began to accumulate in the mine and while appellee at its own expense pumped water from the mine for a short time, no pumping has been done since the latter part of February, 1940.
In March, 1940, Mr. Rains, who was president of the Rains Coal Corporation, appellant, and in charge of its mining operations, according to the great preponderance of the testimony as reflected by this record, abandoned the leased property and accepted employment with the Bates Coal Company at Bates, Arkansas, and has since been employed by that company. The bankruptcy proceedings were terminated the latter part of March, 1940, and according to the testimony of Rains, after an adjustment with appellant’s creditors, except for the four death claims amounting to $3,000, all property of appellant, except its lease, was “wiped out completely,” leaving it “flat broke.” He further testified that after he left the leased property the mine filled with water.
On April 27, 1940, the tipple and the boiler house of the mine were destroyed by fire. This was after appellant had abandoned the property. Insurance in the amount of $6,200 was paid to appellee for this loss. The insurance covering the tipple and boiler house carried by- appellant and effective during the time appellant operated the mine, had been canceled in March, 1940, and other insurance had been acquired by appellee at its own expense.
The mining lease in question had first been acquired by Arthur L. Rains from Edward Abrams. As has been indicated, Rains assigned this lease to appellant corporation, of which he was president. The record reflects that Rains paid nothing for the lease from Abrams, although at the trial in the instant case he valued the lease at $40,000. It had been previously owned by the Midland Coal Company, which had gone into bankruptcy and its property sold on June 12, 1939. Said lease, however, was not sold, but was surrendered to the owner of the land (Abrams). When appellant corporation became bankrupt in February, 1940, Mr. Rains’ verified valúa-' tion of all the assets and property of appellant corporation was $12,712.47. Clearly at that time he considered the lease of no value. Appellant’s creditors were entitled to all of its assets of any value and according to the testimony of Rains himself, they got these assets. The chancellor found on what we think to be the great preponderance of the testimony that appellant had breached the plain terms of the lease contract by becoming insolvent and unable to perform under its terms and by abandoning the property and committing waste. The lease contract specifically stipulates “that if at any time the said lessee, or the corporation to be organized by him, shall become insolvent or if waste be committed . . . lessor shall be entitled to immediately terminate this lease.” It is difficult to understand how insolvency, abandonment and waste could be more clearly established than under the evidence before us.
In the bankruptcy proceedings of February, 1940, Mr. Rains, in a verified, itemized statement of appellant’s assets, shows them to be less than its debts by $2,083.06 and he frankly admits that the company was “flat broke,” “wiped out,” and, of course, unable to carry on. This does not take into account the $3,000 in death claims which appellant owed. Not only this, but the preponderance of the testimony shows that Rains abandoned the property and secured employment elsewhere and allowed the mine to fill with water. After leaving the property, the tipple and boiler house burned. In the circumstances here the thirty days’ notice provision set out in the contract does not apply and appellant was not entitled to such notice since the lease was terminated and forfeited and appellee had the right to enter and take possession immediately upon the insolvency, abandonment or the commission of waste. Munson v. Baldwin, 88 Wash. 379, 153 Pac. 338.
Clearly appellant was unable to carry on operations because it was without the ability to perform. The lease required lessee “to begin and to continue the work of development,” and the rental to be paid lessor for the property depended upon the development of the mine, lessor receiving “a percentage of the output from development.” This, we think, made it a lease for mining purposes.
The lease contract provides “that the relationship between the parties hereto being solely that of lessor and lessee” . . . “And the said lessee hereby accepts the foregoing grant and leases said described property for the purpose of using the same in mining and removing the coal lying underneath said described promises and such adjoining lands as the lessee may hereafter acquire, by lease or otherwise, upon the conditions hereinafter stated, with all and each of which he agrees to comply and be bound . . .”
We think the lease here was in form and effect a mining lease for mining purposes similar to that under consideration by this court in Millar v. Mauney, 150 Ark. 161, 234 S. W. 498. There it is said:
“. . . As compensation for the use of his land for such purposes, the lessor receives by way of rental or royalty a certain percentage of the output from the development of the leased property. In other words, this is strictly a lease for ‘mining purposes,’ such as was under consideration by this court in the case of Mansfield Gas Co. v. Alexander, 97 Ark. 167, 133 S. W. 837. In that case we said:
“ ‘In the construction of mineral leases such as is involved in this ease, the authorities uniformly hold that there is an implied obligation on the part of the lessee to proceed with the search and also with the development of the land with reasonable diligence according to the usual course of such business, and that a failure to do so amounts in effect to an abandonment and works a forfeiture of the lease.’ And further: ‘According to the uniform holding of the authorities, the law will read into this lease a covenant on the part of the lessee that it will with due and proper diligence search the land described in the lease for minerals and with due and proper diligence develop the same. This implied covenant is in effect a condition upon which the lease was made; a failure or refusal to perform that condition results in a forfeiture of the lease. ’
“. . . Although the above doctrine- was enunciated in suits in chancery to cancel the lease, it is equally applicable in actions at law to recover the possession of the property if there has been such a failure on the part of the lessees, still in possession, to observe the covenants by which they are bound as to be tantamount to an abandonment of those covenants and a consequent forfeiture of all their rights under the contract. If the conduct of the lessees in contracts of this nature is such as to show that they do not intend in good faith to perform the covenants by which they are bound, then they have, in legal effect, rescinded those covenants and released the lessors from the obligations of the contract, and the latter are justified likewise in treating the contract as rescinded.
. . Unless it is otherwise provided in the lease, it is always in the contemplation of the parties to such a contract that the lessee is able, financially and in every other way, to perform his undertakings in the time and manner specified in the contract. If, after a reasonable time, he fails to begin and to continue the work of development and exploration provided in the contract, but nevertheless holds possession and exercises control over the leased lands for promotion purposes or financial exploitations, he lias by such conduct worked a forfeiture of his rights under ^the lease and may thereafter be treated as having abandoned his contract and as holding the land as a trespasser adversely to the lessor. . . .
‘‘ The good intentions of the lessee in such contracts to perform the same will not avail him unless he also has the ability to perform, and actually does perform the covenants of his contract within a reasonable time. To abandon means to quit; usually the voluntary relinquishment of a right or privilege which one enjoys. But in cases like this the lessee will be held to have abandoned his right or privilege if he, without fault on the part of the lessor, is unable after a reasonable time to perforin the covenants of his lease. Abandonment is ordinarily a mixed question of law and fact.”
We think the principles of law announced in the Millar case apply here.
Here, as we have indicated, the lease was one for mining purposes since appellee’s compensation depended upon the quantity of coal mined by the lessee and the lessee was obligated to carry on operations with reasonable diligence and (as said in the Millar case) “a failure to do so amounts in effect to an abandonment and works a forfeiture of the lease.” Here appellant could not continue performance under the-lease on account of insolvency, abandonment and waste, as has been indicated.
Appellant also urges here that under the lease contract it was the duty of appellee to rebuild the tipple and boiler house and that its failure so to do prevented appellant’s further operation of the mine and resulted in great damage to appellant. We cannot agree with this construction of the lease contract.
It will be observed that under the plain terms of this lease the lessee (appellant here) agreed to take good care of all of said leased property, and to make all necessary repairs and replacements at its sole cost and expense. This placed the duty on the lessee to rebuild the tipple at its own expense. Courts cannot make contracts for parties, but must construe and enforce them as written.
In St. L., S. W. Ry. Co. v. Cooh-Bahlau Co., 187 Ark. 106, 58 S. W. 2d 428, this court said: “The courts do not make contracts for the parties but only construe them. The parties having made this contract in clear and unambiguous language, it is the duty of the court to construe it according to the plain meaning of the language employed, and not to enlarge or extend its terms on any theory. . . .” See, also, Brotherhood Ry. Tr. v. Deaton, 175 Ark. 733, 1 S. W. 2d 51.
In Bradley v. Holliman, 134 Ark. 588, 202 S. W. 469, Bradley leased a zinc mine to Rambo for ten years. During the life of the lease the mine plant and most of the machinery was damaged or washed away and in considering the effect of the provisions of the lease agreement, this court said:
“There was an express covenant on the part of appellee Rambo, ‘to keep the machinery in as good work ing order'as when he took possession, less the natural wear and tear of the same.’
“ ‘Under an express covenant to repair, the lessee’s liability is not confined to cases of ordinary and gradual decay, but extends to injuries done to the property by fire, although accidental; and even if the premises are entirely consumed, he is still bound to repair within a reasonable time. And the principle applies to all damages occasioned by a public enemjr, or by a mob, flood or tempest. Thus, where the covenant is to “repair” in general terms, or “to repair, uphold and support,” or however otherwise phrased, if it prescribes the duty of repair, it binds the lessee to rebuild if the premises are destroyed. ’ 1 Taylor’s Landlord & Tenant, § 364, p. 454. See cases cited in note, and Tedstrom v. Puddephatt, 99 Ark. 193, 137 S. W. 816, Ann. Cas. 1913A, 1092.
‘ ‘ There was no exception in the contract against accident by flood, therefore, the appellee, Rambo, and his assignees are bound by the express covenant to repair.”
Appellant further contends that appellee made a verbal agreement, after the lease was executed, that the proceeds of the fire insurance should be used to replace property destroyed by fire. As we have indicated, the lease contract here which is complete in itself contains no such provision, and any parol testimony tending to vary the plain terms of the contract would be incompetent for the reason that you cannot add to or take from written contracts by parol evidence.
In Lawrence v. Mahoney, 145 Ark. 310, 225 S. W. 340, this court said: “It is well settled that parties cannot add to or vary the terms of a written contract by parol evidence. It is manifest that, if the lessor should be allowed to go to trial and prove this allegation of the complaint, that would impose obligations in the contract which are not now recited in the written instrument. The written instrument is complete in itself and embodies the last expression of the parties with regard to the matters contained therein.”
And in Bloch v. Tucker, 107 Ark. 349, 154 S. W. 1140, this court said: “The contract did not contain a covenant on the part of the landlord to repair the premises, nor did it contain a warranty of. the condition of the roof. Any attempt to engraft a warranty upon the written contract of lease would vary its terms and is, therefore, not permissible, under the rule of evidence. Delaney v. Jackson, 95 Ark. 131, 128 S. W. 859; Maxfield v. Jones, 106 Ark. 346, 153 S. W. 584.”
In view of our conclusions as expressed above, it follows that appellant is not entitled to recover on its counterclaim.
Finding no error in this record, the decree is affirmed. | [
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Smith, J.
Appellant was found guilty of three separate violations of § 785a, Pope’s Digest, and from judgments Sentencing him to the penitentiary is this appeal.
The indictment in each case charged that appellant, with the fraudulent intent to cheat the First National Bank of Paris, Arkansas, drew, uttered and delivered to the payees námed checks, which were deposited by the payees with said bank in Paris, and which were not honored by the Missouri Valley Trust Company of St. Joseph, Missouri, the bank on which they were drawn, on presentation for payment. Appellant’s explanation of his good faith was not accepted by the jury, and, without reciting the testimony, it may be said that it is legally sufficient to support the allegations of facts contained in the indictments.
Act 258 passed at the 1913 session of the General Assembly (page 1066), is entitled “An act to regulate the giving and making of checks and overdrafts,” which, as amended by act 304 of the Acts of 1929 (page 1309, vol. 2), appears as §§ 785a and 785b, Pope’s Digest, which sections read as follows:
“Section 785a. Any person who, with intent to defraud, shall make or draw, or utter or deliver any check, draft or order, for the payment of money upon any bank or depository, knowing at the time of such making, uttering or delivering, that the maker or drawer has not sufficient funds in, or credit with such bank or other depository, for the payment of such cheek, draft or order, in full, upon its presentation, shall be guilty of a misdemeanor, and punishable by imprisonment for not more than one year, or by a fine of not more than one thousand dollars, or both fine and imprisonment.
“Section 785b. As against the maker or drawer thereof, the making, drawing, uttering or delivering of a check, draft or order, payment of which is refused by the drawee, shall be prima facie evidence of intent to defraud and of knowledge of insufficient funds in, or credit with, such bank or other depository, provided such maker or drawer shall not have paid the drawee thereof the amount due thereon, together with all costs and protest fees, within ten days after receiving notice that such check, draft or order has not been paid by the drawee.”
These sections were read to the jury as instructions in the case.
■ The essence of this offense is the drawing of a check, draft, or order for the payment of money, upon any bank, or other depository, by one who knows, when the .check is drawn, that he does not have on deposit sufficient funds for the payment of the check or draft in full upon its presentation for payment.
Our laws have no extraterritorial effect, and § 785a, Pope’s Digest, means, of course, the drawing of a check or draft upon some bank or depository in this state. The checks here in question were not drawn on any bank in this state, but were drawn on a bank in the state of Missouri. They were deposited, for collection and account, in a bank in this state; but they might have been deposited, for collection and account, in a bank in another state, and conceivably in a state having no statute similar to § 785a, Pope’s Digest.
The question here is not whether appellant committed a fraud which constitutes a violation of the law, but is, rather, whether he has violated the statute under which the indictments were drawn.
Appellant insists that, in no event, can he be guilty of a violation of this statute, for the reason that he drew and mailed the checks to the payees in Arkansas from his office in Kansas City, Missouri. But that circumstance is not determinative of his violation of the statute. Had he drawn these checks on the bank in which they were deposited for collection and account, or upon any other bank in this state, he would have violated the statute, although the checks were not drawn in this state.
A case illustrative of this principle, and one frequently cited, is that of State v. Chapin, 17 Ark. 561, 65 Am. Dec. 452, in which Chief Justice English said: “For example, if a man standing beyond our boundary line, in Texas, were, by firing a gun, or propelling any other implement of death, to kill a person in Arkansas, he would be guilty of murder here, and answerable to our laws, because the crime is regarded as being committed where the shot, or other implement propelled, takes effect.”
At § 134 of the chapter on Criminal Law, 22 C. J. S., p. 219, it is said: “If a crime covers only the conscious act of the wrongdoer, regardless of its consequences, the crime takes place and is punishable only where he acts; but, if a crime is defined so -as to include some of the consequences of an act, as well as the act itself, the crime is generally regarded as having been committed where the consequences occur, regardless of where the act took place, and under a statute so providing a person who commits an act outside the state which affects persons or property within the state, and which, if committed within the state, would be a crime, is punishable as if the act were committed within the ' state. ’ ’
This, we think, is a sound statement of the law, and is the law of this state; but it must be remembered that appellant was indicted for, and has been convicted of, a violation of the statutory offense of drawing cheeks against a deposit insufficient to honor the checks, but these checks were not drawn, on any bank in this state. The venue of this offense is not transitory. The payees in these checks, instead of depositing them in a bank in this state, might have deposited them, for collection and account, in a bank in some other state which might not have an overdraft statute. The payees in such case would have been equally defrauded, as they were here, but if a prosecution in this state would not lie in the case stated, it would not lie in this. Our statute is violated when an overdraft is drawn on a bank in this state. To construe it otherwise is to give it extraterritorial effect. Now, it is to be remembered that appellant was not prosecuted for and has not been convicted of obtaining money or other thing of value by false pretenses.
Our statute covers the case of one who draws an overdraft against a bank in this state. The statute is highly penal, and must be strictly construed, and, when so construed, it cannot be held to cover an overdraft drawn against a bank in another state, although that act results in defrauding a person resident in this state in whose favor the draft was drawn.
In the case of Hadley v. State, 196 Ark. 307, 117 S. W. 2d 352, the defendant had drawn a worthless check on a bank in Oklahoma City, Oklahoma, which was dishonored upon presentation, and his conviction was affirmed on the appeal to this court. But in that case the defendant was charged with obtaining money under false pretenses, although the check was drawn on a bank in another state, while here appellant is not charged with that offense, but with a violation of a statute applicable only to overdrafts drawn against banks in this state.
The demurrer to the ir1' ir*,'meats in this case should have been sustained, and the judgment will be reversed, and the cause dismissed. | [
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MoHaney, J.
This is an action by appellant to enjoin appellees from constructing a state highway over a changed route of the Mayesville-East Road, No. 102, through lands belonging to it in Benton county. It is alleged that no condemnation has been had of the land and that it is an attempt to take private property without compensation. Also that under the law no damage could be recovered, but if so, no appropriation has been made and no damage could be recovered. The answer denied there had been no condemnation, and asserted that an order was made on July 15,1910, condemning a right-of-way over and across the lands of appellant, a copy of which was attached. It recites it was made on petition of the State Highway Commission, defines the route of the road as changed, and provided that any land owner affected, who feels aggrieved or damaged by reason of the changes made, shall present his claim to the court within one year from said date. Trial resulted in a decree dismissing the complaint for want of equity.
For a reversal of this decree, two contentions are made, first, that a letter from the county judge of Benton county to Judge Carmichael, attorney for appellant, in which it was stated: “I can’t see how your clients would be damaged by the establishment of this road as the farm is already divided by a county road. The only damage that possibly could be had is the extra land taken” is a denial of damages under the constitution; and second, that the act under which the county court acted in making the order of condemnation is unconstitutional and void.
As to the first proposition, we agree with counsel for appellant that the constitution prohibits the taking of private property for public use without just compensation, and that this prohibition extends, not only to the property actually taken, but to the damage, if any, done to the property not taken. Perhaps the county judge should not have pre-judged appellant’s right to recover damages to the land not taken, and in expressing- the view that “the only damage that possibly could be had is the extra land taken. ’ ’ The county court might change its view of the matter on a trial before it, if and when such, a claim is ever presented to the court. If not, and appellant still feels aggrieved, an appeal will lie. So far as this record discloses, no claim has yet been filed with or presented to the county court. The case of Dowdle v. Raney, County Judge, 201 Ark. 836, 147 S. W. 2d 42, is cited and relied on in this connection, but we can see no application to be made of the facts in that case to this, as to this point. Appellant had and still has a complete and adequate remedy at law. It is not alleged or attempted to be proven that 'Benton county is insolvent and cannot pay any damage suffered by appellant, and the burden was on it to do so. There is no presumption of insolvency as to the state or any of its political subdivisions. In fact the presumption is to the contrary. Crawford County v. Simmons, 175 Ark. 1051, 1 S. W. 2d 561.
As to the second contention, that the statute, § 6968 of Pope’s Digest, authorizing the county court to condemn land for highway purposes without notice and without actual payment therefor in money, is unconstitutional, it is conceded that we have held to the contrary. We are asked to overrule Sloan v. Lawrence County, 134 Ark. 121, 203 S. W. 260, and Crawford County v. Simmons, 175 Ark. 1051, 1 S. W. 2d 561. The rule stated in the Sloan case and reaffirmed in the Crawford county ease has been many times followed, and such cases are collected in Shepard’s Arkansas Citations, vol. 2, p. 128, as also in the February, 1941, supplement thereto. The most recent cases on the subject are Ark. State Highway Comm. v. Means, Judge, 192 Ark. 628, 93 S. W. 2d 314; Dowdle v. Raney, supra; and State Highway Comm. v. Hammock, Chancellor, 201 Ark. 927, 148 S. W. 2d 324. We decline to overrule all these cases, even though “this court will be flooded with cases on the question of whether a county is solvent or insolvent,” as suggested by learned counsel for appellant. The rule announced in Sloan v. Lawrence County, supra, is, that the sovereign state may, under said-statute, without notice, condemn private property for a public road, but that a statute which undertakes to determine the question of compensation, without notice, is void. The decision in that case was not unanimous, and one of the dissenting judges wrote the unanimous opinion in Crawford County v. Simmons, and the other dissenting judge agreed to it, and later wrote the case of England v. State Highway Commission, 177 Ark. 157, 6 S. W. 2d 23, in which it was stated that “the opinion in the case -of Crawford County v. Simmons, 175 Ark. 1051, 1 S. W. 2d 561, is decisive of all the questions raised by this appeal.”
Affirmed. | [
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McHaney, J.
Petitioner is a domestic corporation with its principal office and place of business in Osceola, in Mississippi county. It has .a resident agent for service of summons at Marked Tree, in Poinsett county. Two personal injury actions were brought against it in Poinsett county, service being had on said resident agent, on October 16, 1940. In one of said actions H. F. Gray was the plaintiff and in the other Margaret Anne Gray, a minor, by said H. F. Gray as her father and next friend, was plaintiff. Each complaint alleged that the plaintiff is a resident of Pulaski county, and that the cause of action arose out of a collision between a truck of petitioner and an automobile in which the plaintiffs were riding, in Osceola, in Mississippi county, on August 27, 1937. Each complaint alleged serious and permanent injuries, and prayed damages in large amounts, on account of the alleged negligent operation of said truck.
On the return day of the writ, petitioner appeared specially in each case and filed a motion to dismiss on account of the provisions of act 314 of 1939, generally referred to as the “Venue Act.” Said motions were arg-ued and submitted to the court, the regular circuit judge sitting and presiding, and they were taken under advisement. At the next regular term of said court, which convened on May 12,1941, at which the respondent was presiding on exchange, said motions were again argued to respondent who made and entered an order overruling same. Petitioner then presented its petition for writs of prohibition in the two cases which have been consolidated and briefed together.
We think the court erred, not in overruling the motions to dismiss, but in not treating them as motions to change the -venue, and in not transferring them to either Pulaski county, where plaintiffs reside, or did reside at the date of the injury, or to Mississippi county, where-the injury occurred. The fact that the injury occurred in 1937 and that the suit was brought in October, 1939, before said act 314 became effective because it was referred to the people by petition and was voted upon and adopted November 5, 1940, does not alter the situation. In the very recent case of Fort Smith Gas Co. v. Kincannon, Judge, ante, p. 216, 150 S. W. 2d 968, the exact point was decided against the respondent’s contentions. There, the complaint was filed in Crawford county on November 4, 1940, by a plaintiff residing in Sebastian county to recover damages for personal injuries alleged to have been sustained in Sebastian county against a corporation domiciled in Sebastian county. It was said there: “Act 314 declares the public policy in regard to actions of this character, and this policy would apply alike to suits pending when the act became effective as well as to those thereafter brought in the absence of a saving clause as to pending suits.” And again, it was there said: “Here, the legislative will is that for one to recover damages to compensate a personal injury he must sue therefor either (a) in the county in which he was injured or (b) in the county in which he resided at the time of his injury; and there is no exception or saving clause in favor of pending suits.” What we there said is controlling here and this case is ruled by that in favor of petitioner.
In order to clarify the-question of service under said act 314, the legislature of 1941 enacted act 21, entitled “An Act to provide for statewide service of process in local actions.” Section 1 thereof reads a.s follows: “In any action which may lawfully be brought only in some one or more- particular counties in this state, and not in any county of the state in which service may be had on the defendant, so that the venue of such action is local and not transitory in nature, summons may be served upon the defendant or defendants in such action in any county in this state.”
Respondent, while conceding’ the force of the Fort Smith Gas Co. case, supra, undertakes to distinguish this case from that in that here the suit was filed in the county where the resident agent for service resided, whereas in that there was no resident agent in Crawford county. We think this distinction is unimportant. In that case, service was good, as here, under existing law when the actions were commenced, but act 314 changed the venue of existing actions, those already brought as well as those thereafter to be brought, and localized such actions to one or the other of the two counties named. It is not á question of service, but a question of venue, and the circuit court of Poinsett county is without jurisdiction to proceed with the trial of these cases. It should have treated said motions to dismiss as ones for change of venue, and have sustained them by ordering a removal either to Pulaski or to Mississippi county, Osceola district, as the plaintiffs may elect, they having such right of election in the first instance.'
The writ of prohibition will be awarded.
Mehaeey, J., dissents. | [
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Humphreys, J.
Appellees brought suit in the chancery court of Arkansas county on October 6, 1938, alleging that they were the owners of a building in the city of DeWitt, and that the front part of the building including doors, windows, hinges, lights and porch were attached to and were a part of the building. Appellees also alleged that they are the owners of the land immediately in the rear of the building upon which is a projection room built of concrete and tin and all wiring and light fixtures attached to the building are a part of the same, and that such fixtures can not be removed without defacing or impairing the value of the building. They also alleged that appellant was threatening to tear out all of the fixtures and parts of the building which would cause them irreparable damage and injury. They prayed for an order of the'court enjoining and restraining appellant from entering upon said property and removing said appurtenances and fixtures and for damages.
A temporary restraining order was issued enjoining appellant from removing or tearing from the building the front end, the porch, doors, hinges, locks, windows, light wires, concrete foundation in the rear of the building and the tin shed located thereon. No notice of the application for the restraining order was given appellant, but the order was served on him on the 6th day of October, 1938.
On October 28, 1938, appellant filed a motion to vacate the temporary restraining order alleging that no summons was ever served upon him notifying him of the pendency of the spit, and that he never received any notice that plaintiffs would apply for a temporary restraining order.
It seems that no action was taken by the court on the motion to vacate the temporary restraining order.
Appellant filed an answer denying each and every material allegation contained in the complaint and prayed that it be dismissed.
He also filed a cross-complaint alleging that he entered into possession of the building in question on the first day of February, 1926, under a written contract with T. J. Davis which contained a provision to rent the building for additional time until January 1, 1933, at $75 per month. He alleged that the lease was renewed from time to time by attaching written riders to the contract, and that subsequent to the death of T. J. Davis, R. M. Davis, one of the appellees, continued to accept the rentals from such building under the terms of the lease. He also alleged that the written contract contained a provision as follows:
“And the second party reserves the right when he discontinues the use of said building to remove therefrom all furniture, fixtures, woodwork, screen, booths, and other material of every kind and nature placed there by him or by others for him. Except flooring.”
A copy of the lease was attached to the cross-complaint and marked “Exhibit A.” Appellant alleged in his cross-complaint that appellees without notice to him, unlawfully seized the building described in the lease contract and refused to allow appellant to remove the front partition from the building of the value of $150, the front porch of the value of $100, the projection booth of the value of $300, light wires of the value of $40, and screen frames and ticket booth of the value of $100 all of which belonged to him under the reservations set out in the contract and that appellees deprived appellant of $65 rent which he paid them for the month of October, 1938, and that he was evicted from the building before the expiration of the term. He prayed for $775 damages on account of the breach of the contract 'by appellees and for a mandatory injunction directing him to deliver possession of the personal property aforesaid to him.
Appellees filed an answer in reply to the cross-complaint alleging, in substance, that after the death of T. J. Davis in 1935, appellant had no contract with appellees or with R. ÍL Davis, administrator of the estate of T. J. Davis, deceased, for the occupancy of the building or of the land in the rear of the building; denied that T. J. Davis was the true owner of the building, and the land in the rear thereof in 1926 when appellant rented said property from him; denied that appellant had paid the rent for the month of October, 1938, but stated that appellant was in arrears with the rent. They also prayed for an accounting of all checks, receipts, and other evidences showing payment of rent. They also alleged that appellant had built for himself another building- to operate a picture show and had moved into the new building and left the old building* open and exposed to the danger of trespassers and vandalism and fire hazard and that appellant had torn out and destroyed doors, hinges, locks, light wiring and permanent fixtures. They alleged that they had been damaged in the sum of $766.90 on account of his removal of the fixtures from the building and for the removal of the building* and projection booth, etc., in the rear of the building which had been attached to the building.
The cause was submitted to the court upon the pleading’s and the testimony introduced by the respective parties which resulted in a finding that neither the appellees nor appellant had been damaged in any sum whatever, and based upon such finding rendered a decree dismissing* appellees’ complaint and appellant’s cross-complaint for want of equity, and that appellees were entitled to retain, keep and hold all of the fixtures and personal property located in the building, and that neither appellees nor appellant should recover any damages, and denied a mandatory injunction directing the appellees to deliver the possession of the remaining property, and that the costs incurred should be borne by each equally.
From the findings and judgment of the court dismissing’ the cross-complaint of appellant and from the ■ findings and decree of the court refusing the issuance of a mandatory injunction appellant prayed and has duly prosecuted an appeal to this court.
The lease contract relied upon by appellant as authority for dismantling the building and removing therefrom all the improvements he had made therein and the structures he had placed on the land back of the building in remodeling same for use as a picture show was introduced in evidence. It contains erasures appearing in the face of the instrument and is as follows:
“Contract of Lease
“Know all men by these presents:
“That this contract of lease, made and entered into on this the 1st day of February by and between T. J. Davis, party of the first part, and Kay A. Wilson, party of the second part, both of DeWitt, Arkansas.
“Witnesseth: That for and in consideration of the sum of $65 per month, payable on the first of each month, the party of the first part does hereby lease to party of the second part his brick building on south side of the court square, in the town of DeWitt, Arkansas county, • Arkansas, formerly occupied by the DeWitt Pharmacy for a period of one year with the option on the part of the second party of retaining said building another year or as much longer as he may desire up to Jan. 1, 1330 1933, at $75 per month payable as above stated. Immediate possession is to be given to second party.
“It is expressly understood and agreed that the second party may remodel said building in any way he may see fit at his own expense to make it suitable for the operation of a picture show therein, both as to floor, front and rear entrance of building or in any other way without impairing or materially weakening the structure. Second party may at his option build an operating booth at the outside of the building at rear if he so desires, and make any changes he may deem necessary for the sue- ■ cessful operation of a picture show therein except altering east and west walls.
¿i atront ¿ (T-t- ---s —* ss-rppr! ttmt j_U ID iUi UlOi UAplCDOlj UUU^l OIVVU CXXXV. aglbCU UX1CLU vf -f Vi /zx ct/ynr\TT VI •waT^-cr an -cr/ua ■»-»’*'•* +1-%/^ "ÍT!"í ”! 1 rí 1 Ti C Vltri J. U 1/JJ.V OVW11VI jycxtj- \Jj QJ.VUK3 ULjy U1IV K7 1/lAAV.AAA^ y XXXD DU.CCGSSOVS IS 1-0 TGjplcLCG uxxo gxuDD xxx xavixl ui X.X, — 1^-.-.-I"I J3 ^ c~. •*-±. 1 i-. -V-W /\TTT i P •¿'T'»*-* /\TtmA-W Cl /~k VI £1 C11 I1» d CJ CV V» VI li’VXXTAT1 UXXV UU.lXU.XXig ao XL XD XXV YY XX bAXV vVYUOi OO UVOÜVO wnvi rv rrv* ■Pl/%r\T> Izvcr-eVl voiola/m "KnilVIvn rv in aama riAi'iclii'i nil £10. W J.-KJ V J \_< J. H. V-' KJ t-l.Jl.i'-l.XAxg S.J.J. WW^. V— received. And the second party reserves the right when he discontinues the use of said building to remove therefrom all furniture, fixtures, woodwork, screen, booths, and other material of every kind and nature placed there by him' or by others for him. Except flooring.
“Given under our hands this 1st day of February, 1926.
“ T. J. Davis,
“Party of the First Part. “Ray A. Wilson,
“Party of the Second Part.”
It contains indorsements extending the lease from year to year and also the amounts to be paid for rent, the last indorsement appearing being as follows :
“It is hereby agreed that this lease attached is extended for the term of one year beginning January 1, 1935. Amount of rent to be $65 per month. Attached to and made a part of lease this 8th day of December, 1935.
“R. A. Wilson,
“T. J. Davis.”
T. J. Davis died on the 5th day of June, 1935. He owned only a small interest in the store building and did not own the land in the rear of the building at all. That was owned by appellees.' A short time after his death, R. M. Davis, one of the appellees, was appointed administrator for the estate of T. J. Davis, deceased. R. M. Davis testified that after the death of T. J. Davis appellant said something' to him about repairing the floor and that he asked appellant if he had any contract and that he was told by appellant that he had no contract. Appellant denied that he made such a statement to R. M. Davis. The testimony reflects without dispute that appellant made no renewal contract and obtained no extension of his contract with the administrator of the estate of T. J. Davis, deceased, or with anyone claiming to own an'interest in the property after the death of T. J. Davis. It seems that the Robinsons and the Davises and perhaps others became involved in a lawsuit as to the ownership of the store building immediately after the death of T. J. Davis and that during the pendency of the suit appellant paid no rent to anyone. He testified that he deposited same in one of the banks awaiting the result of the suit so that he mig'ht pay the rent to the party or parties entitled thereto. Finally Miss Jane Davis, one of the appellees, purchased the interest of the remainder of the Davis heirs and the Robinson heirs, and after acquiring title thereto appellant paid the back rent to R. M. Davis and according to the evidence paid him rent down to and including the month of October, 1938. Nothing was said between them about the extension of the old contract or whether it was in existence, but it seems that he paid him the amount per month which the last extension of the contract provided should be paid. During the summer or fall of 1938, appellant purchased land and constructed a picture show or building thereon. He notified appellee, R. M. Davis, that he was going to move into the new building either before or about the time he made the last payment of rent, and that said appellee mig'ht rent the store building to someone else and mentioned two parties to him that might be interested in renting it, but they were not parties who would likely rent it to run a picture show. R. M. Davis then entered into negotiations for the rental of the property to a Mr. W. W. Davis, not related to him, whereupon appellant removed the projection building he erected at the back end of the store and which was attached in a way to the store building, tore the doors out of the house and left practically nothing except the concrete upon which it rested. He went into the building and removed all the chairs except the two rows of children’s chairs all of which were screwed down to the floor and in doing so jerked the seats out aud did considerable damage to the floor. He also removed everything around the curtain and tore it so that it' could not be used again and tore the celotex off the wall in the back of the building. He tore most of the wiring out of the building and left part of the wiring hanging. He cut the light fixtures off the wall so short they could not be used again. He left the back end of the building open after taking off the celotex, the removal of which left one hole in the back end of the building six feet by six feet, another hole two feet by six feet, another hole four feet by four feet. Appellant later put some strips or slats across the front end of the building. In other words he dismantled the building save and except the front part, of it and damaged it considerably practically destroying the ticket booth. He had not removed the porch in front of the building nor the two rows of children’s chairs. At this juncture appellee, R. M. Davis, discovered what was being done and brought suit to prevent further removal of property from the building. While attempting to put the door back and stop the holes so as to prevent trespassers from entering the building, appellant appeared on the scene. After some discussion as to respective rights, appellant, according to the weight of the evidence, said to appellee, R. M. Davis, “I am through with the whole building if you will let me get those seats out, then you can go ahead and have it.” He took the chairs out the next morning.
S. A. Gentry testified that he was hanging some doors in the building for Mr. Davis, which was after the injunction suit had been brought, and Mr. Wilson came by and said to Mr. Davis, “You can’t do that.’’ Mr. Davis said, “Why can’t I protect my building?” and he (Wilson) told him (Davis) he couldn’t do it; that ho was hanging the doors and Mr. Wilson was objecting. Mr. Wilson walked off a few steps and then came back. They had a conversation, and he understood him (Wilson) to say that he would get the seats out and let him (Davis) have it. He further stated that Mr. Wilson said to Mr. Davis, “I will get the seats out and let you have it.” He further stated that Mr. Wilson did not say any thing about taking anything except the seats and that he understood that Mr. Wilson was turning the building over to Mr. Davis, but that he (Wilson) was to get the seats. He said that the way he understood it was that he (Wilson) told Davis he could have the building. According to the weight of the evidence appellant removed practically everything of value out of the building and from behind the building in total disregard of the injury to the building in its original condition.
We have concluded that appellant’s lease contract had expired with the last extension thereof and that thereafter no provision of same was in force and effect. His right to remove the repairs he had placed upon the original property fell with the expiration of the contract. He did not move out at the expiration of the contract or attempt to do so, but remained in the building and used it as a picture show without consulting anyone. He made no effort to get an extension of his original contract or to make a new one. We think he clearly abandoned any rights he might have under the contract to dismantle the building or waived his right to dismantle it and remove therefrom the repairs he had made thereon by his acts and conduct. We do not think that two or three years thereafter he could rely upon the provisions of his original contract which reserved in him the right when he discontinued the use of the building to remove therefrom all “furniture, fixtures, woodwork, screen, booths and other material of every kind and nature placed there by him or by others for him. Except flooring.” The contract itself contains erasures favorable to appellant, and he should have produced the contract when he was asked immediately after the death of T.. J. Davis whether a written contract existed between him and T. J. Davis. One of the erasures from the contract was as follows:
“It is further expressly understood and agreed that in the event the second party gives up the building, his .assigns or successors is to replace the glass in front of the building as it is now if the owner so desires and lower floor, to level, replace building in same condition as received.”
If this provision had not been erased from the contract, appellant would have no right to remove anything from the building without leaving it in the same condition it was in when he remodeled it in 1926.
But even conceding that the contract with its changes and cancellations was a contract made and entered into between T. J. Davis and Bay A. Wilson we think appellant clearly abandoned and waived 'any rights he had thereunder when the contract expired unless he had moved out. He was nothing more nor less after the expiration of the contract than a tenant by sufferance, and under such tenancy would not have any right to dismantle the building when he moved out. The written right to do so expired when he failed to move and, instead retained possession of the building by sufferance only.
But aside from all this, even after the injunction proceeding was brought, according to the weight of the evidence in this case, appellant agreed to turn the building over to appellees on condition they would allow him to remove the remaining seats which had not been removed from the building. We think this was clearly a compromise agreement of all their differences, and that it was supported by sufficient consideration. A good faith controversy existed between them as to whether appellant had any right to dismantle the building when he moved out of same and the damage he had already done to the building in removing fixtures, etc., therefrom. The settlement of this good faith controversy by allowing appellees to take the building as it then stood and appellant to take the remainder of his chairs was a valuable consideration and supported the compromise and settlement.
No error appearing, the decree is affirmed. | [
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McHaney, J.
Appellants are three of the four heirs at law of Rudolph C. Bollinger who died testate in Fort Smith, Sebastian county, March 27, 1940 — a son, C. R. Bollinger, and two daughters, Mrs. Ida Leard and Mrs. Lillian Galloway. A third daughter, Mrs. Emma Hollingshead, is not a party to this litigation, but her daughter, Mrs. Doris Duncan, a granddaughter of the testator, is the principal beneficiary under the will.
The will was filed for probate March 30, 1940, and appellants objected to its probate on the grounds of testamentary incapacity and undue influence of the principal beneficiary. Trial resulted in a finding, on May 31,1940, against appellants on both grounds, that is, that the testator had mental capacity to make said will, and that its execution was not procured through undue influence of Doris Duncan or any other person, and an order was accordingly made and entered admitting said will to probate.
In the first paragraph thereof,' the testator appointed appellee as his executor and directed it to pay his just debts, funeral expenses, the legacies thereinafter given and all inheritance taxes and other charges against his estate. In the second paragraph he gave to his two daughters, appellants, $500 each and to his son, appellant, and Mrs. Hollingshead, his daughter, $1,000 each, all upon, condition that they should “not in any manner contest or oppose the probate of this will or contest the same after it may have been probated, ’ ’ under the penalty of forfeiting the bequests named, and they “shall have no interest in such property (of his estate), either under this will or under the laws of descent and distribution. ’ ’ In the third paragraph he said: “I give, devise and bequeath unto the Arkansas Valley Trust Company, a corporation of Fort Smith, Arkansas, as trustee for my granddaughter, Doris McTavis, (now Doris Duncan), all of the rest, residue and remainder of my estate, of every character and description, including any part thereof that may be forfeited by any of my children under the provisions of the second paragraph of this instrument.
“The purpose of this paragraph being* to vest in said trustee all property owned by me at the time of my death, after the payment of my just debts, funeral expenses and all other charges against my estate, and after the payment of the above mentioned bequests to my four children, as provided in the second paragraph hereof.” In the fourth, fifth, sixth and seventh paragraphs powers and directions are conferred upon and given to the trustee relative to the management and disposition of the estate, the net income from which shall be paid to his said granddaughter in monthly installments, or if she should die before his death, leaving issue surviving her, then such trust estate shall be held for the benefit of such living issue, such trust to continue for 20 years after his death, at which time it should be turned over to said beneficiary.
Twenty witnesses were produced by appellants and twenty-five by appellee, making a large record of some 600 pages. We have carefully considered their testimony as abstracted by counsel for both sides, as also the opinion of the trial court based thereon, and we agree with the trial court and appellee that the great preponderance of the evidence shows not only that the testator was mentally capable of making a valid will, but that he was not unduly influenced in so doing by the principal beneficiary. We cannot undertake to review all this testimony pro and con, or pro or con.
The three appellants, vitally interested in the outcome expressed the view that their father was mentally incompetent, not only at the time of making his will, April 28, 1934, but that he had been so for several years prior thereto. They testified to his failing memory, his forgetfulness, giving instances thereof, and to some peculiarities and eccentricities of their aged father and are corroborated in certain respects by other witnesses. He was 77 years old at the time of making his will and died at the age of 83. The testator and his wife had been living together as husband and wife for upwards of fifty years at her death in April, 1934. Each was the owner of substantial property. In 1920 they went to one of counsel for appellee and had him draw a will for each of them. Mrs. Bollinger’s will gave to the children $1,000 each and all else of her estate to her husband, if he survived her, if not to the children equally. In March, 1927, they again went to their attorney’s office and had him make new wills for them. Mrs. Bollinger’s will was substantially the same as her former will, except she created a trust for her children for 10 years, in the event her husband predeceased her. But if he survived her, the provision was the same as in the 1920 will. In May of the same year, they again called on their attorney to draw new wills, but the only change was in the executors named in the wills. Her will, drawn in May, was executed in June, 1927, and was probated April 0, 1934.
Mrs. Bollinger had owned for many years a building on Garrison Avenue, the principal business street in Fort Smith, known as the Bootery, valued by the executor at $30,000 to $35,000. A few months before her death, her brother, William Wegman, died intestate, and she inherited a net estate from him of $40,000. A year or mor.e prior to her death, she became mentally deranged, but there is no substantial evidence of her incapacity to make a will in 1927. Notwithstanding this fact the children contemplated and threatened a contest of their mother’s will because of her mental incapacity to make it, and as a result thereof, after several weeks of consultation and bargaining, a written agreement dated April 27, 1934, was entered into by and between the father and his children whereby each received from their mother’s estate so given him in her will about $10,000 or a total of $40,000. On the very next day, April 28, 1934, Mr. Bollinger went to his attorney’s office and executed the will now attacked for lack of mental capacity to make it. It is agreed that his mind was as good on April 28, 1934, as it was the previous day, and it was good enough on that day for him to make a written contract with them by which each received $10,000. In this written contract of settlement he was given a certain property on Garrison Avenue on condition that he would not sell or encumber same during his lifetime, but “that this agreement shall not prevent the said party of the first part (testator) from disposing of said property by valid will:” This was a recognition by them that at that time he was capable of making a valid will.
On account of this experience with his children, no doubt, Mr. Bollinger decided to forestall, if possible, a successful contest of his will by them on account of lack of testamentary capacity. So, he advised his attorney that, before executing the will, he would be examined by two capable physicians and he was so examined. They made written favorable reports, of his testamentary capacity, which he placed with his will in his lock box, and shortly before he died, he turned them and the will over to his attorney. He was examined by Dr. Poster of the Cooper Clinic and by Dr. Krock of the Holt-Krock Clinic, and the latter testified for appellee in this case to the effect that he was mentally competent.
There are many other facts and circumstances, both before and after April 28,1934, tending strongly to show his mental ability. He testified as a witness in one or more divorce cases of his said granddaughter, Doris, she having been married six times and divorced five times. He also testified as a witness in his son’s bankruptcy proceeding. He collected his rents, made minor repairs to his rental houses, renewed a contract of lease for a term of years on the Bootery property at an increase of $10 per month rental, borrowed substantial sums of money from his bank by executing' notes therefor, consulted with Mr. Andrews relative to his life insurance contracts and closed them out, consulted with his attorney on various matters, and all of these parties with whom he transacted business noticed nothing wrong with him mentally. Of course there was testimony from appellants, a brother of the testator and others that tended to show lack of capacity. But as said in Pernot v. King, 194 Ark. 896, 110 S. W. 2d 539, “In almost every instance where a witness testified to mental incapacity, a qualifying explanation, or a disarming' admission on cross-examination, or circumstance incidental to observations, or the time fixed as a basis, was such as to negative allegations of continuous incapacity.” For instance, when appellants say their father was incompetent as far back as 1930, they are at once confronted with a solemn written contract or assignment between father and son, by which his business as a musical instrument dealer should be wound up, liquidated and his debts paid. When they say he was incompetent on April 28, 1934, they are immediately confronted with their written contract with him by which they each received from him $10,000. No wonder the trial court did not accept their testimony as true, in the face of their own business dealings with him as well as a mass of other evidence showing ordinary everyday business transactions attributable only to a person of sound mind and memory.
What constitutes testamentary capacity has been many times stated or defined by this court. McCullouch v. Campbell, 49 Ark. 367, 5 S. W. 590; Ouachita Baptist College v. Scott, 64 Ark. 349, 42 S. W. 536; Taylor v. McClintock, 87 Ark. 243, 112 S. W. 405; Puryear v. Puryear, 192 Ark. 692, 94 S. W. 2d 695; Pernot v. King, supra. All of them are to the effect that, if the testator has “capacity to retain in his memory, without prompting, the extent and condition of his property, and comprehend to whom he was giving it, and be capable of appreciating’ the deserts and relations to him of others whom he excluded from participation in the estate,” he has testamentary capacity. While some of us might think he dealt unjustly with his children, we think his mental capacity was established by the great weight of the evidence and, of course, he had the right to dispose of his property as he saw fit.
As to the alleged undue influence of the principal beneficiary, we think little need be said. There is no doubt that she has been a headstrong, spendthrift girl, committing many acts of indiscretion. Many marriages and divorces are to her credit or discredit. Doris came to live with her grandparents when she was about 12 years old and has continuously resided with and been supported by them, together with her various husbands, with one exception. Strong ties of love and affection grew up between her grandfather and her, and it may be that her unconventional disposition drew him more closely to her, which resulted in the creation of this spendthrift trust by him. There is no doubt of her extravagance and of his yielding disposition or her importunities, but there is no substantial evidence in this record that she had anything to do with the making of this will or that she knew it had been done until sometime afterwards. One or more of appellants testified that she told them they would get nothing out of their father’s estate — that she would attend to that. Her then husband, McTavis, accompanied Mr. ‘Bollinger to the attorney’s office at the time the will was drawn, but he was not in the room where it was drawn and did not know what it contained. In Lavenue v. Lewis, 185 Ark. 159, 46 S. W. 2d 649, where fraud and undue influence were charged to defeat a will, we quoted from McCullouch v. Campbell, supra, where it was said that “the fraud and undue influence which is required to avoid a will must be directly connected with its execution. The influence which the law condemns is not the legitimate influence which springs from natural affection, but the malign influence which results from fear, coercion, or any other cause that deprives the testator of his free agency in the disposition of his property. And the influence must be specifically directed toward the object of procuring a will in favor of particular parties. It is not sufficient that the testator was influenced by the beneficiaries in the ordinary affairs of life, or that he was surrounded by them and in confidential relations with" them at the time of its execution.” Judge Battle quoted the above in Smith v. Boswell, 93 Ark. 66, 124 S. W. 264, as also the following from 3 Elliott on Evidence, § 2696: “The influence of the husband over the wife, that of the wife over the husband, of the parents over the children, and of the children over the parents, are legitimate, so long as they do not extend to positive dictation and control over the mind of the testator.”
When viewed in the light of these rules, the evidence wholly fails to show any undue influence of the kind the law recognizes. Doris, no doubt, had great influence with the testator, but not an “undue influence” as above defined.
We are, therefore, of the opinion that the order of the probate court, admitting the will to probate, is cor- ■ rect, and it is accordingly affirmed. | [
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Mehaeey, J.
This action was instituted in the Ouachita chancery court by the appellant, Herman Tarrence, against Annie Berg, Henry Mike Berg, Leah Berg Shyer, and Gette Berg Jordan.
It is alleged that the appellant is the son of Will Tarrence who died intestate on September 23, 1916, and the grandson of Ben Tarrence who died on August 30, 1892. Ben Tarrence was the owner of certain lands described in the complaint, and was in possession of and occupied said lands as his homestead up to the time of his death. He left surviving him Will Tarrence, John Tarrence, Levie Tarrence, and Margaret Tarrence. The lands described forfeited for taxes the year of his death, and were sold for taxes in 1893. Leo Berg and Henry Berg bought the lands at the tax sale and a tax deed was executed and delivered to them in 1895. The widow of Ben .Tarrence and their children lived on the land at the time of the tax sale and continued to live there for about five years when they were put off the lands and the purchasers took possession. Will Tarrence was the oldest of the heirs, and was insane all his life and incompetent to transact any sort of business. Notwithstanding his mental incapacity and incompetency, he married and five children were born of the marriage, the youngest'one being Herman Tarrence, appellant here. Herman Tarrence was born on June 2, 1917, after his father died. He was 23 years of age on June 2, 1940, after beginning this suit on May 6, 1940.
The defendants filed a demurrer to the complaint of plaintiff, which demurrer was sustained and the complaint dismissed for want of equity. The plaintiff elected to stand on his complaint and appealed to this court. The case is now here on appeal.
Appellant calls attention to § 13860 of Pope’s Digest. That part of the section relied on 'by appellant reads as follows: “All lands, town or city lots, or parts thereof, which may hereafter be sold for taxes at delinquent sales, under the laws of this state, may be redeemed at any time within two years from and after the sale thereof; and all lands, city or town lots belonging' to insane persons or minors or persons in confinement, and which have been or may hereafter be sold for taxes, may be redeemed within two years after the expiration of such disability.”
It is argued that this statute makes a plain distinction between adult persons and insane persons and minors, and that the minor has two years after his disability is removed in which to bring suit.
It is true that the right to redeem descends to the heir of the person who had the right to redeem, but this right must be exercised within the time fixed by law. Will Tarrence, being insane, would have two years after the removal of his disability in which to redeem the land from tax sale. His disabilities were never removed until he died, and his heirs, inheriting the right to redeem, would have to exercise that right within two years after his death.
Appellant cites and relies on the case of Pulaski County et al. v. Hill, 97 Ark. 450, 134 S. W. 973. In that case the court said: “The owner who labors under the disability mentioned in the statute could assert the right of redemption for the period therein named, and his death, while still, laboring under such disability, would not abridge that right in his heir upon whom the law cast the estate and every right incident thereto. In the case of McNamara v. Baird, 72 Miss. 89, 16 So. 384, it was held that where an infant having until one year after majority to redeem land from a tax sale dies, his heir has the same right and time in which to redeem, and that giving' to the heir this right to redeem is but giving effect to the right existing in the ancestor which by operation of law is cast upon the heir.”
In the Hill case, it was alleged that John Hill was insane at the time the lands forfeited for taxes, and labored under such disability continuously from that date until his death in 1906, during all of which time he owned and resided upon said land. In that case, however, his disability was removed by death and the suit was begun by the heirs one year after his death. It was held that the heirs could enforce the right to redeem at any time within two years after his disability was removed- by death. The action in that case was begun within the time fixed by law for Hill to redeem, and it would make no difference whether the heirs, who inherited the right to redeem, were minors or not. The right would have to be exercised within the time fixed by statute, which was within two years after Hill’s disability was removed by death.
The statute makes no provision for one disability being tacked to another, and therefore the disability of minority cannot be tacked to the disability of insanity to extend the time fixed by statute to redeem. 17 R. C. L. 830.
Appellant also cites from Neil v. Rosier, 49 Ark. 551, 6 S. W. 157. In that case, when the land was forfeited for taxes, the owner was a minor, and of course had two years after the removal of her disability in which to redeem the land. She sold all of her interest to Neil, and the purchaser had the same right to redeem that the vendor had, but this right would have to be exercised within the time allowed the vendor. In that case the court said: “When the land was forfeited to the state, Ruberna Smith, who was then a minor, was the owner of an undivided share of it. A few months after reaching her majority, she executed a deed of all her interest in the land to the appellant, Neil. The tax title had in the meantime come through mesne conveyances to the appellees.' Shortly after his purchase, and within a year after Ruberna’s majority, Neil took the proper steps, as it is conceded, to redeem the land, if he conld redeem at all.”
This question of tacking disabilities is annotated in the case of Martin v. Goodman, 126 Okla. 34, 258 Pac. 871, 53 A. L. R. 1298. In one of the notes, on page 1313 of 53 A. L. R., it is said:
“ The rule in this country . . . is that successive disabilities in different persons taking the same estate by devise, descent, or purchase cannot be tacked to prolong the time within which suit may be brought on a cause of action, beyond the time allowed by the statute to bring suit after the removal of the disability existing at the time the cause of action accrued; in other words, although a cause of action passed from one person under disability, to another also under disability, suit must be commenced within the time allowed by the statute to those under disability for bringing suit, computed .from the date of the death of the one in whose favor the cause of action first arose.”
The appellant here cannot tack his disability to that of his father in order to suspend or continue the suspension of the operation of the statute. Hoggard v. Mitchell, 164 Ark. 296, 261 S. W. 643.
Will Tarrence was insane, and under the statute he had two years after the removal of his disability to exercise his right of redemption. His heirs had the right under the statute to redeem within two years after his disability was removed by death, and they could not tack the disability of minority to that of the father and thereby extend the statute.
While the right to redeem descended to the minor, that right must be exercised within two years after the death of his father, and not thereafter.
The decree of the chancery court is affirmed. | [
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McHaney, J.
Appellant was charged by information with the crime of carnal abuse upon the person of one Katie Page, a girl not 14 years of age at the time of the alleged offense. Trial resulted in a verdict of guilty and a judgment of conviction was entered, sentencing him to the penitentiary for one year.
For a reversal of this judgment appellant first contends that the evidence is insufficient to sustain the verdict and judgment — that ‘ ‘ there is no testimony whatever to sustain the conviction of this man, except the testimony of this little girl herself.” And this quoted statement is true. She testified very positively that appellant did have sexual intercourse with her, stating the approximate time, the place and the circumstances of its occurrence. He, just as positively, denied the truth of her statements. This made a question of fact for the jury. She is not an accomplice within the meaning of § 4017 of Pope’s Digest, and corroboration was not necessary. Boyd v. State, 63 Ark. 504, 39 S. W. 554, 58 Am. St. Rep. 129. While we might not have voted for the verdict had we been on the jury, this is no reason why we should reverse the judgment. There was substantial evidence to support the verdict and the jury is the judge of the credibility of the witnesses and the weight to be given their testimony.
Another assignment of error relates to the refusal of the court to permit the witness, Ollie Gribson, to testify that she saw the prosecutrix and one Joseph Page having sexual intercourse, which was offered to impeach her testimony that she did not have such relation with said Joseph Page and also to attack her credibility as a witness. She was asked whether she had had such relation with him and denied it, although .she admitted she had had such relations with other men. We think the court correctly excluded the offered testimony because it was a collateral matter which could not be proven for impeachment purposes. She having testified on cross-examination that she had no such relationship with Joseph Page could not be contradicted by even Joseph Page or Ollie Gribson. King v. State, 106 Ark. 160, 152 S. W. 990. Nor was it competent as going to her credibility to be contradicted on a collateral matter. The question was properly asked of her on cross-examination, as going to her credibility, but her answer concluded the inquiry. See, also, Plunkett v. State, 72 Ark. 409, 82 S. W. 845; Renfroe v. State, 84 Ark. 16, 104 S. W. 542.
Another assignment argued is that appellant was impotent and could not have committed the offense. This was raised for the first time in the motion for a new trial. We think the suggestion comes too late.
The final argument is that the court erred in permitting the father of the prosecutrix to sit in the court room during the trial, and that his presence compelled the little girl to give false testimony against appellant. This contention cannot be sustained, even though there was anything in the record to show that such was or might have been the case. No objection was made to his presence in the court room until the hearing on the motion for a new trial, when it was objected to his being present at that time.
We find no error, so the judgment must be affirmed. | [
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Griffin Smith, C. J.
The question is whether funds realized from a sale of bonds by the City of Little Rock under authority of Amendment No. 13 to the constitution may be used in purchasing right-of-way in order that East Twenty-fifth Street Extension may be accommodated by construction over Chicago, Rock Island & Pacific Railroad lines west of Adams Field, the latter being familiarly known as the municipal airport.
At an election August 23, 194.0, authorized by city ordinance No. 5947, there was approval of a bond issue of $300,000, proceeds to be used for purchase of additional lands for airport purposes and in “constructing and keeping buildings for administration, passenger terminal, hangars, taxi strips, driveways, ’ ’ and in providing “other things incidental and necessary to a modern airport.”
Area of the airport has been more than doubled, and additional enlargements are contemplated.
Missouri Pacific Railroad Company lines are on a right-of-way extending northwest and southeast, and at certain points the property adjoins western extremities ■of the airport. Rook Island is west of Missouri Pacific, .and from a point south of Twenty-fifth Street Extension the Rock Island road curves sharply from southwest until the direction is virtually due north-south where the railroad is crossed by the street extension. The city’s plan Is to construct an overpass which will continue Twenty-fifth Street Extension west by north to highway No. 65. The overpass is an enterprise of the federal government, estimated to cost $150,000, construction depending upon procurement of the right to use private property for which expenditures aggregating $10,662.50 must be made before the government will proceed. Payment of this sum from the bond fund was authorized by city ordinance No. 6211 of May 19, 1941. Appellant, a Little Rook citizen and taxpayer, seeks by injunction to prevent issuance of warrants, alleging use it is proposed to make of the funds constituted a diversion. An additional $5,000 from the city’s general fund was appropriated to supplement the item of $10,662.50, as to which no question is raised.
The city’s answer reviews enlargement and development of the airport at expense of the federal government, . . . “best described [as a plan] to grade and drain an airport extension on 700 acres of city property, paving two runways with concrete and one with asphalt, and all incidental work' of sodding, fencing and lighting in conformance with standards of the Civil Aeronautics Administration, ... at a cost of approximately $1,000,000.”
The answer further recites that the expenditures referred to were predicated upon plans for an airport free of physical obstructions; that a county highway known as Fourche Dam Pike traverses the field, and that it creates an obstruction impeding* development of runways and other facilities essential to aviation.
The so-called “pike” forms the southern boundary of the original municipal airport, leading from its intersection with East Seventeenth street. The obstructing part of the highway extends east from a western boundary of the field where Frazier Pike is crossed. It extends east, then northeast, and east again.
Fourche Bayou is bridged at a point approximately a mile and a half east of the southeast corner of Adams Field. Beginning at the southeast comer of Adams Field, Factoria avenue marks the eastern boundary for half a mile, intersecting* with Fourche Dam Pike at the field’s terminus. The pike extends east (with direction variations) to the bayou bridge. Twenty-fifth Street Extension, from the proposed overpass, leads due east more than three miles to Fourche Bayou bridge, and immediately north of the street extension (from Missouri Pa cific railroad to Factoria avenue, a distance slightly less than one mile) the airport is contiguous.
East Sixth, Ninth, Eleventh, Thirteenth, and Seventeenth streets, somewhat circuitously, lead to Adams Field. East Sixth leads into Picron avenue, .and the latter intersects East Tenth street at the northeast cornier of the airport and extends southeast to Fourche Dam Pike. East of Picron avenue the city owns property which is to be used for further expansion of Adams Field.
It appears, therefore, that the. county road lying within confines of the .airport serves residents of the area lying east of the airport, but upon completion of the government’s expansion program travel by the old route will be attended by danger to those who use it, and such use will necessarily constitute a hazard to aviation.
It is the county’s belief that if the right of user is to be surrendered, reasonable facilities should be substituted, .and to this end (July 12, 1940) there was a judgment vacating the road on condition that East Tenth and East Eleventh streets be widened and repaired, and that Twenty-fifth Street Extension be improved, as set out in the order.
The complaint of James T. Tunnah named as defendants Charles E. Moyer, mayor; H. C. Graham, city clerk, and G. L. Alexander, city treasurer. The City of Little Rock, asserting a vital interest in the subject-matter of the cause of action, interpleaded, adopting the answer of the original defendants. Tunnah’s demurrer to the answer was overruled. There was a decree denying injunctive relief.
Other Facts — and Opinion
Appellant predicates his allegation of error upon the assertion that lands sought to be condemned are not contiguous to the airport, and that there are other means of ingress and egress. It is not contended that if the city owned an airport,■'“and had no possible means of access,” it could not purchase land to facilitate use of the property. It is argued that East Sixth street is an important thoroughfare; that it accommodates traffic and crosses two railroads through underpasses; that East Ninth street is also paved, and in addition East Fifteenth and East Seventeenth streets are available. There is this statement in appellant’s brief:
“The building of the overpass and construction of a road from Frazier pike to Highway 65 are in no sense a part of the airport development, but are merely a link in the creation of a new highway out of Little Rock. The fact that it can be used by persons going to and from the airport is incidental to the building of the road. The construction of this highway is neither necessary nor incidental to maintenance of the airport.”
Amendment No. 13. to our constitution expressly authorizes bonds to be issued “. . . for the purchase, development, and improvement of . . . flying fields located either within or without the corporate limits of [a] municipality.” But it is further provided that “No municipality shall ever grant financial aid toward the construction of railroads or other private enterprises, . . . and no money raised under the provisions of this amendment by taxation or by sale of bonds for a specific purpose shall ever be used for any other or different purpose.”
By approving the bond issue in 1940, citizens of Little Rock authoiized funds to be used for the purposes expressed “. . . and [for] other things incidental and necessary to a modern airport.” The word “incidental” must be read in connection with “necessary.” Amendment No. 13 fixes limitations, and “incidental” is not used. But the express grant of authority carries with it powers implied by reason of the purpose to be served.
In Bulloch v. Dermott-Collins Road Improvement District, 155 Ark. 176, 244 S. W. 327, the question was whether assessments of benefits were void. Plans provided for wooden bridges to cost from $10,000 to $12,000, spanning non-navigable waters. The legislative act authorized the commissioners to construct “necessary bridges.” In the opinion it was said: “This means, of course, bridges incident to the main improvement, and not bridges of such magnitude that themselves would constitute independent improvements. We do not think the character of bridges ... or their estimated cost, stamp them as independent improvements. They are incidental and necessary to the construction of the road. In other words, they are component parts of one improvement.”
In Railey v. City of Magnolia, 197 Ark. 1047, 126 S. W. 2d 273, it was held that an election to determine whether the city should erect a hospital was not “ineffective” because the ordinance made no reference to equipment, the holding being that authority to erect the •'hospital impliedly authorized it to be equipped. “A naked building,” says the opinion, “would not be a hospital. It would require the essential equipment to make it such.”
The holding in Rhodes v. City of Stuttgart, 192 Ark. 822, 95 S. W. 2d 101, was that an ordinance providing for an election on a bond issue to construct, widen, straighten, and pave streets, was not void because it failed to designate the amount to be used on each kind of work in making the general improvement.
Mr. Justice Btttlee, in Atkinson v. Pine Bluff, 190 Ark. 65, 76 S. W. 2d 982, expressed the view of the court that under Amendment No. 13, authorizing cities to issue bonds “for the construction of sewers,” the power was impliedly granted to adopt the means reasonably appropriate to carry into effect the authority expressly given.
No precise definition can be formulated as a hard and fast rule for determining just where “incidental” infringes upon “necessary,” or where “necessary” excludes “incidental.”
In the case at bar city authorities, believing they have exercised a sound discretion, will apply bond money to the purchase of highway right-of-ways located almost a mile west of the airfield; but in exchange the county highway on the field will be eliminated and access to the field over an improved highway will be assured. It is not alleged that unreasonable amounts are to be paid for overpass lands. Value to the county of its public road may be equal to the fund expended by the city; and cer tainly value to the airport (and incidentally to the city) is substantial when the road is closed.
Express authority in Amendment No. 13 for cities to acquire "flying fields” beyond the corporate limits carries with it implied authority to employ reasonable means in making the field available to the public, and this means roads. It is true there are streets by which the airport can be reached, but in view of the development of aviation, enlargement of local facilities, and of the fact that the airport forms a link in transcontinental flying, we do not agree with appellant that authority to consummate the questioned transaction is lacking; nor do we think the county court order was invalid because of the conditional nature of its recitals.
The decree is affirmed. | [
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Smith, J.
Appellees recovered judgment for the value of certain timber alleged to have been cut and removed from fractional south half of section 36, township 7 south, range 4 west, in Arkansas county, of which land they were the owners, and from that judgment is this appeal. The question in the case is the one of fact whether the timber was cut and removed from the southeast quarter of this section or from the northeast quarter thereof, and appellants say in their brief that “The only question here at issue is the boundary line between the northeast quarter and the southeast quarter.” The land in controversy is a part of Thedford’s Island— made an island by the changing course of the Arkansas river.
Three surveyors ran the line between these two quarter sections, but their surveys do not coincide, and the question as to which was correct was submitted to the jury. The county surveyor ran this line, beginning at what he said was an established corner and blazed trees along its route. This line, according to his testimony, was run in conformity with the government field notes. According to this survey the timber was cut on appellees’ land, and there is no controversy as to its quantity or value.
Frank Quertermous, a former county surveyor, ran the line, and made a map of the survey, according to which the timber was cut from appellees’ land.
H. P. Stewart, a civil engineer, also made a survey, which challenged the accuracy of the other surveys, and placed the land from which the timber was removed on appellants’ side of the dividing line. •
These questions of fact were decided by the verdict of the jury, and the sufficiency of the testimony to support the finding is not seriously questioned.
It is insisted, however, that the jury’s verdict was, or may have been, influenced and controlled by certain incompetent testimony. Lay witnesses, who claimed to know where the line had been located in former surveys, testified as to the location of the line. These witnesses testified in regard to an old fence row, referred to as the mulberry fence, which was the south line of what the witnesses called the White homestead. Appellees’ testimony was to the effect that this old fence row was on the line between the two quarter-sections, and that the timber was cut on the land south of that line.
The insistence is that the court erred in permitting witness Bob Allen to testify as to statements made by White, long dead, who was appellants’ predecessor in title, in regard to the location of this line. Counsel for appellees interrogated witness Allen as follows: “Q. Were you familiar with White’s homestead down there? A. Yes, some. Q. Do you know .where the south line of his land was? A. I know where he said it was. Q. Where was it — from the information you got? A. Where the mulberry fence was. Q. Did White claim any land south of that old fence row?” An objection to this question was overruled, but the question was not answered, whereupon the witness was cross-examined as follows: “Q. He told you — or did he tell you where his line was? A. Yes, he told me where his line run. Q. (Interrupting) Where did he tell you the line was ? A. The old mulberry fence was the line.”
It is our opinion that, if this testimony as to the mulberry fence being on the line was.error, the error was invited, as the answer that the mulberry fence was the line was given in answer to a question of appellants’ counsel. We think, however, that it was not incompetent. White was in possession of the land which he claimed to own, and this statement was in derogation of his title, as it tended to show the limit or boundary of his land.
At § 96 of the chapter on Boundaries, 8 Am. Jur., p. 814, it was said: “The declarations of a deceased former owner are admissible in evidence, but in order that they may be received, they must establish some fact,- as. a cornerstone or particular marked line, and they are not admissible when they are mere statements that certain lands lay within the boundary of such former owner, or that it was the same as had been conveyed in a certain deed, or merely as to facts which might tend to a general reputation as to the true boundary. Evidences of declarations by a deceased owner as to boundaries is inadmissible unless made while he was actually in possession and claiming it as owner.”
In the case of Cadwalader v. Price, 111 Md. 310, there appears an extended note to the case in 19 Ann. Cas. 551, in which, the annotator says: “There is considerable authority to the effect that the declarations of a person who is deceased at the time of trial, made while he was in possession of land owned 'by him, and pointing out the boundaries thereof on the land itself, are admissible in evidence, where it does not appear that it was to the interest of the owner to misrepresent the facts as to the boundaries; and it need not appear affirmatively that the declarations were made in restriction of, or against, his own rights. (Citing many cases.)”
In the case of Russell v. Webb, 96 Ark. 190, 131 S. W. 456, the late Justice Frauenthal said: “It is well settled that declarations and admissions of one in possession of land, relating to the title thereof and adverse to his interest, are admissible against him; and declarations and admissions of a person made while in possession, adverse to his title are admissible against his successors in interest and all who claim under him. We do not think the court erred in admitting this evidence.” See, also, Seawell v. Young, 77 Ark. 309, 91 S. W. 544; Cotton v. Citizens Bank, 97 Ark. 568, 574, 135 S. W. 340; Butler v. Hines, 101 Ark. 409, 142 S. W. 509; Cole v. Burnett, 119 Ark. 386, 177 S. W. 1146; Jefferson v. Souter, 150 Ark. 55, 233 S. W. 804; Meekins v. Meekins, 168 Ark. 654, 271 S. W. 18.
It is not questioned that the testimony is sufficient to support the verdict and judgment, and we do not think the testimony of Allen calls for its reversal, and it is, therefore, affirmed. | [
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Humphreys, J.
Appellant obtained a decree of divorce from appellee in the chancery court of Lawrence county on the 12th day of June, 1930, in which the custody of their minor child, Beulah Mamie Downing, was awarded to her free from the control or interference of appellee.
Some time in 1933, appellant married John Bradas and moved to Shreveport, Louisiana, tailing the child with them. The child resided in the home with her mother and stepfather in Shreveport during the school year and spent the summer with her aunt in Little Rock until July, 1939, since which time she has been in the care and custody of her aunt in Little Rock so that she might receive medical treatment from specialists for her affliction commonly called muscular atrophy. Symptoms of the affliction first appeared in 1934 and will progressively get worse as the child grows into adolescence and may develop into curvature of the spine unless she can receive treatment from specialists. She needs huge doses of vitamin “E” which is an expensive preparation. The child is now eleven years old and the disease has already progressed until it impairs muscular activity throughout the body, even involving her face. When the child smiles she does not smile like an ordinary person. When the child attempts to walk she has a tottery, drunken gait. The movements of her hands and arms are jerky and undecided.
Her stepfather supported and maintained her in his home until she came to Little Rock for special treatment and even then sent the aunt money with which to pay specialists and on March 19, 1940, sent the aunt a Western Union money order for a considerable sum. The aunt, Mrs. Mamie Crump, and her husband, together with the aid of the stepfather and mother have borne the entire expense of the specialists to this day. Her aunt, Mrs. Crump, took the child to Dr. Willis Campbell in Memphis, Tennessee, and at the time requested appellee to meet her in Memphis so that he might help with the cost of any treatment that Dr. Campbell might deem necessary. She made this request by letter to which she received no answer. The stepfather has a position with a laundry in Shreveport.
Appellee testified that subsequent to the divorce he married again, and that he has a child by his second wife, and that he contributes to their support; that he earns $126 a month, and that his monthly expenses and debts amount to about $152 a month; that his expenses consist of old obligations and the maintenance and support of himself and new family.
Mrs. Mamie Crump testified that she and her husband were not in a financial condition to continue or to assist in paying for the services of specialists in treating the child.
Appellant brought this suit in the Lawrence chancery court on March 20, 1940, seeking to recover from appellee $50 per month or such sum as the court may deem proper to be expended for medical services in the treatment and care of the child.
Appellee filed an answer stating that in June, 1930, the court granted a divorce to appellant against appellee and awarded the custody of the child to appellant without imposing upon him the support and maintenance of the child; that appellant had intermarried with John Bradas, who, by virtue of such marriage, took the status of a parent and that the stepfather is responsible for the care and maintenance of his stepdaughter and prayed that her complaint be dismissed for the want of equity.
Upon a hearing of the cause on the pleadings and evidence the court dismissed the complaint upon authority of the case of McWilliams v. Kinney, 180 Ark. 836, 22 S. W. 2d 1003.
In the case of McWilliams v. Kinney, supra, this court said that: “It is the rule in this state, and, generally elsewhere, that the father is bound, primarily, in case of divorce to support his infant children, and this is true where the decree of divorce awards the custody of the child to the mother with no provision being made regarding support of the child.”
In support of the general rule announced above, the court cited Holt v. Holt, 42 Ark. 495, and quoted from the Holt case, supra, as follows: “The dissolution of the marriage tie and decreeing the custody of the children, either permanently or temporarily to the mother, do not relieve the father of his obligation to support them. If they are too young to earn their own livelihood, the father must continue to furnish them a maintenance out of Ms estate, regard being bad to bis means and condition in life.” See, also, Shue v. Shue, 162 Ark. 216, 258 S. W. 128, and Longinotti v. Longinotti, 169 Ark. 1001, 277 S. W. 41. The case of Holt v. Holt, supra, was again cited with approval in the case of Daily v. Daily, 175 Ark. 161, 298 S. W. 1012.
The court ruled in the case of McWilliams v. Kinney that the principles announced in Holt v. Holt, supra, were correct principles of law and it was not meant or intended to impair those principles of law in the least in deciding the McWilliams v. Kinney case, supra. In affirming the judgment of the trial court in the McWilliams v. Kinney case, supra, the court differentiated the facts from the facts in the Holt case and called attention to the fact that Mrs. McWilliams soon after obtaining her divorce from Kinney married McWilliams who had alienated her affections from him and that McWilliams as a volunteer had taken the child into his home and supported it for about two and a half years without any claim being made, and then only when pay day had come on the alienation judgment against him. The McWilliams v. Kinney case is not authority for changing the rule that a father is bound primarily to support his infant children, notwithstanding the decree of divorce awards the custody to the mother with no provision for their support, since, although the ties of matrimony may be broken by decree the relationship of parent and child can not be severed; and a divorced wife may maintain an action against the former husband for the future support and education of their minor child even where the divorce is silent as to its custody and maintenance.
In the case of Owen v. Watson, 157 Tenn. 352, 8 S. W. 2d 484, the court ruled that the father of a fourteen-year-old boy whose custody was awarded the mother by a divorce decree was liable to a surgeon and the hospital for hospital bills and the performance of an appendectomy on the boy and the rendering of services incident thereto although the boy was supported by the stepfather as a member of the latter’s family.
In the ease at bar, we have an innocent minor child afflicted in such a way that she needs the treatment from specialists in order that her life may not entirely be destroyed. The appellee is the author of her existence and is primarily responsible for her support and maintenance and certainly he should be required under the facts and circumstances in this case to assume a part of the extraordinary expense incident to medical treatment for the insidious disease which has come upon her.
The thing that troubles us most is the amount we should adjudge in favor of appellant to assist her to procure the treatment of specialists for the afflicted child. We think the amount prayed for is reasonable if and the child’s aunt and her husband are not able to pay the entire expense and it is also evident that appellee is not in a financial position to pay $50 a month toward the services of specialists in attending upon the child. We think the amount prayed for is reasonable if appellee was in a position to pay it. Fifty dollars a month would not be exorbitant, but he only earns $126 a month and the law imposes upon him the duty of maintaining his new family. Under all the circumstances a contribution on his part of $12.50 a month would not prevent him from supporting his new family if they live economically. The decree dismissing appellant’s complaint for want of equity is reversed, and the cause is remanded with directions to the trial court to enter a decree of $12.50 a month in favor of appellant for the support and maintenance of their afflicted child. | [
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Holt, J.
C. L. Holm, who owns farm land in Jackson county, Arkansas, contracted in writing with S. 0. Ivy for the construction of certain improvements on his property. Hohn was a tenant-purchaser of the Farm Security Administration (F. S. A.) and the improvements were made with its approval. The contract was dated July 18,1939, and provided that Ivy should furnish all the materials and perform all the work required to construct one dwelling house, one barn, one poultry house and one smokehouse, for a consideration of $1,795, “less salvage deducted $140,” making the cash consideration after deducting the $140 salvage allowance, $1,655.
The contract further provided that work should start within ten days from the date of approval of the contract and completed within sixty days from the date of authorization to begin work, and that should Ivy fail to complete the contract according to its terms, Hohn could terminate it by giving written notice to Ivy, take possession and utilize such materials as may be on the site of the work.
Ivy began work in August and on September 23, 1939, by bill of sale, sold to appellee an old three-room box dwelling house (referred to in his contract with Hohn as “salvage”) located on the land for a consideration of $90, $60 being paid in cash and the remaining $30 to be paid “on delivery of possession of the property.” The bill of sale also contained this recital “having taken said house as a part consideration for building the residence. ’ ’
In his efforts to perform the contract, Ivy became indebted to appellants, Heinemann & Wilf, for materials in the amount of $1,000 to each, or a total of $2,000', and was unable to pay them. Approximately nine months after Ivy began work (April 24, 1940) Hohn terminated the contract by written notice to Ivy.
April 30, 1940, appellants, Heinemann & Wilf, with the approval of the F. S. A., entered into a written contract with Hohn to complete the construction begun by Ivy. This contract provided: “I, S. Heinemann, and Wilf Lumber Company of Jackson county, state of Arkansas, hereby offer to furnish all labor and materials and perform all work required for complete construction house plan No. 7, barn plan No. 3, poultry house 50C, and smoke house 412-1 for the consideration of $1,383.60. The work shall be commenced on April 30,1940, and shall be completed on or before June 1,1940. It is agreed that in the event this offer is accepted in writing by yon, the offer must be approved in writing by the representative of the Farm Security Administration, U. S. Department of Agriculture, before it becomes binding on either of us. The work to be performed and labor and materials to be furnished by me hereunder must meet with the written approval of said representative before you are obligated to pay therefor. ’ ’
At the time this latter contract was entered into the old dwelling house was still standing and had not been removed from the property by appellee. In July, 1940, Heinemann & Wilf sold this old dwelling house to Luther Victory, who demolished and removed it.
Appellee, drainage district, brought suit against appellants and Luther Victory, alleging in its complaint that it was the owner of the building in question, having purchased it from S. O. Ivy; that appellants (defendants ■below) knew it was the owner, but nevertheless demolished it and carried it away; and asked for damages in the amount of $300.
Luther Victory answered that he had purchased the building from appellants, who warranted the title. Ap pellants, Heinomann & Wilf, answered that they were partners and denied generally the allegations of the complaint.
• At the conclusion of all the testimony, the trial court gave a peremptory instruction to the jury in favor of appellee to the effect that the undisputed evidence showed that the house in question belonged to appellee under its purchase from contractor Ivy, and submitted to the jury for determination the question of the value of the house in question. The jury found the value to be $250 and from a judgment on this verdict comes this appeal.
For reversal appellants urge here that (quoting from their brief) : “The trial court erred in refusing to submit to the jury the question whether title to the house passed to Ivy, permitting his sale of it to appellee.”
The evidence presented in this record is undisputed. All parties to this litigation understood what was meant by the following provision in the contract between Hohn and Ivy: “Less salvage deducted $140.” All understood it to mean an old three-room box dwelling house. The value of this salvage was deducted from the contract price of $1,795. Ivy had the right as the owner of this house to sell it and apply the proceeds as he might think best, or to demolish the house and use the materials in the construction of the buildings which he had contracted to erect.
While- it is true that appellee did not remove the building after its purchase from Ivy, appellants admitted that they knew long before they sold this building to Luther Victory Ivy had sold it to appellee. On this point we quote from appellant Heinemann’s testimony: “Q. You say Mr. Pennington told you before you ever took over that and started the work out there that he had bought the house and paid for it? A. Yes, sir. Q. He told you that before you ever agreed to take it over didn’t he? A. Yes, sir.”
Hohn, who testified on behalf of appellants, did not sa}^ that appellants were to have the house as part of the consideration for completing- Ivy’s contract. It will be observed from the contract set out, supra, between Hohn and appellants that the sole consideration mentioned therein is $1,383.60. Nowhere in that contract is this house in question, or the salvage therefrom, mentioned as any part of the consideration.
On the other hand, under the terms of Ivy’s contract with Hohn, Ivy became the owner of, and took the house in part payment for his work. Its value, $140, was deducted from the contract price and constituted payment to him in the same manner as payments of money to him on the contract. As we have said, appellants admit that they knew of the sale of the house from Ivy to appellee long before their contract, supra, with Hohn and it is our view that appellants never at any time acquired title to the house or the right to possess and dispose of it.
It is' also our view that on the facts presented here an actual manual delivery of the house in question to appellee was not necessary in order to pass title to appellee. The rule on this point is clearly stated in 24 R- C. L. 56, § 320, in this language: “In the case of the sale of bulky or ponderous articles which from their nature are not capable of a manual possession, the same indicia of a delivery and change of possession is not required to sustain the sale as against creditors of the seller as in the case of articles readify movable.” In support of the text, the author cites McDermott v. Kimball Lumber Co., 102 Ark. 344, 144 S. W. 524, 36 L. R. A., N. S., 466, and in that case this court said: “Thus, in the case of Lynch v. Daggett, 62 Ark. 592, 37 S. W. 227, it was held that a contract of sale was complete, although the property was thereafter to be moved by the seller to the place named. In the case of Anderson Tully Co. v. Rozell, 68 Ark. 307, 57 S. W. 1102, it was held that a sale was complete and the title to the lumber passed to the buyer although it was thereafter to be hauled to another place and there measured, and the balance of the purchase price determined by such measurement was then to be paid.”
No error appearing, the judgment is affirmed. | [
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Smith, J.
This is a suit upon a note for $6,500 dated February 1, 1928, due August 1, 1928, payable to the order of W. Higginbotham, signed by Gr. W. Culberhouse and Ola Culberhouse, his wife, and bearing* interest at the rate of ten per cent, per annum after maturity until paid. Higginbotham, the payee, died intestate March 15, 1928. Gr. W. Culberhouse died testate in August, 1929, and his wife, Ola D., died testate January 3, 1938.
Higginbotham was survived by Frances A., his widow, and R. F., their only child. Mrs. Culberhouse died testate, and Mrs. Flossie Ritter, the principal beneficiary in her will, qualified as her executrix. Mrs. Ritter had been reared in the Culberhouse home as a daughter, but had never been legally adopted.
The widow and sole heir of Higginbotham filed the note as a claim against Mrs. Culberhouse’s estate, and appealed to the circuit court from the order of the probate court disallowing it. On the day set for the trial of the cause in the circuit court, R. W. Higginbotham, a son of R. F., filed a motion alleging his sole ownership of the note under its assignment to him, and prayed that he be substituted as sole plaintiff. This motion was overruled, and the trial resulted in a judgment in favor of the executrix, which judgment, upon the appeal to this court, was reversed, for the refusal of the court to permit R. W. Higginbotham to prosecute as sole plaintiff. Higginbotham v. Ritter, Executrix, 200 Ark. 376, 139 S. W. 2d 27.
The purpose and effect of that motion was, of course, to remove the disqualification of the widow and son of W. Higginbotham to testify imposed by § 5154, Pope’s Digest.
Upon the remand, the cause was tried upon the issue of fact whether the statute of limitations had been tolled by the alleged payment of $15 made by Mrs. Culberhouse. A previous payment of $2,000 had kept the note alive up to and beyond the date of the alleged payment of $15.
As stated in the former opinion, the note was filed as a claim against Mrs. Culberhouse’s estate February 3, 1938. The court found that plaintiff had failed to prove the $15 payment, and that the note was barred by the statute of limitations, and from that judgment is this appeal.
The controlling question in the case is, therefore, the one of fact whether Mrs. Culberhouse made the $15 payment. Upon this question of fact many'witnesses testified, and we have a large record before us.
We first state the rule which we must follow in reviewing the finding of the trial court on the testimony. The case having reached the circuit court on appeal from the probate court, it was heard by the circuit court without a jury.
In the case of Matthews v. Cargill, 125 Ark. 136, 188 S. W. 564, it was held that when the law makes the trial judge the trier of facts in cases to which the constitutional right of trial by jury does not apply, the same presumption attends his findings as when a jury is waived by the parties. That case was an appeal to the circuit court from the county court; but the same rule was stated and applied in the cases of France v. Shockey, 92 Ark. 41, 121 S. W. 1056; Thomas v. Thomas, 150 Ark. 43, 233 S. W. 808, and Mangrum v. Benton, 194 Ark. 1007, 109 S. W. 2d 1250, which were all appeals to the circuit court from the probate court. There are many other cases to the same effect.
Gr. W. Culberhouse, one of the makers of the note, died testate and childless, and R. E. Robertson, a nephew of Mrs. Culberhouse, qualified and served as executor of his estate, which proved to be heavily incumbered and insolvent. The note was not filed as a claim against Mr. Culberhouse’s estate.
After the death of Mr. Culberhouse, his widow removed to the home of Mrs. W. Higginbotham, his sister, with whom she resided for several years, and the testimony is to the effect that Mrs. Culberhouse paid8 no board while residing with her sister.
Mrs. Frances A. Higginbotham identified the signature of Mrs. Culberhouse as that of her sister, and testified that she and Mrs. Culberhouse had frequently discussed the debt evidenced by the note, and that Mrs. Culberhouse repeatedly expressed the intention to see that it was paid. Mrs. Higginbotham further testified that her son Robert purchased a bill of can goods in Paragould costing $30. Concerning this transaction, out of which the alleged payment of $15 was made, Mrs. Higginbotham testified as follows: “A. I never expected anything to come up, but she was out there living with us and she wanted to give Bob the $15 on the grocery bill. She just hated to stay here all the time and she wanted to pay.her part of it. Bob said, ‘Aunt Ola, I have done paid it’ and he didn’t want to take it and she says, ‘"Well, you Avill take it — you know and I know that I want to pay my way.’ Bob told her he had already paid it, but she just insisted that he take this money and he said, ‘Well, I will apply it on the note’ and she said that was all right, for him to do that.”
B. P. Higginbotham testified in the probate court that his aunt, Mrs. Culberhouse, gave him the $15 to apply on the groceries, but he did not want to take her money on that account, ‘ ‘ and she insisted, and I told her, ‘No,’ and tried to give her the money back, and finding she would not take it back, I said, ‘I will apply the money on that note,’ and let it go at that, and she said, ‘Very well.’ ”
The presiding judge made only a general finding of fact; but it may have been in his mind that Mrs. Culberhouse did not make a payment on the note, but intended only to pay half the price of the groceries, for he asked the witness this question: “Q. The actual taking of the currency, did she give you as a part of the grocery bill?”, and he answered: “A. I would not take it until after I convinced her I would not put it on the grocery bill. ’ ’
The conflict between B. P. Higginbotham’s testimony before the probate court and that at the trial appears slight, and yet it may be significant, and we cannot know, in the absence of specific findings, just what weight the trial judge gave to this, conflict. At the trial.from which is this appeal Higginbotham testified that he would not accept the money until Mrs. Culberhouse had said, “Very well,” in response to his suggestion that the payment be credited on the note; whereas, in the probate court, he testified that “I tried to give her the money back,” a thing he could not have done unless she had first given him the money; and if she intended to pay one-half the cost of the groceries it was not a payment on the note.
B. E. Bobertson, a nephew of Mrs. Culberhouse, was named executor in the will of Mr. Culberhouse, and wound up the estate in that capacity. , He testified that his aunt frequently referred to the Higginbotham note, and expressed the desire that it be paid, but he did not specifically state whether his aunt wanted it paid out of her estate or out of that of Mr. Culberhouse.
A nurse who attended Mrs. Culberhouse during the last two weeks of her life testified that Mrs. Culberhouse referred to the Higginbotham note, and the night before she died stated that she wanted it paid.
A Mrs. Arnold, who had lived in the Culberhouse home as a daughter until her marriage, but who was left nothing in Mrs. Culberhouse’s will, testified that she had frequently heard Mrs. Culberhouse express the desire and intention to see that the note was paid. •
Opposed to this testimony was that .of three witnesses, who detailed conversations with Mrs. Culberhouse, in which a contrary purpose and intention in regard to the note was expressed. Mrs. Culberhouse expressed the opinion that she was not responsible for the note, which evidenced her husband’s debt, and she expressed resentment at the manner in which the $2,000 credit was obtained and applied, this being the proceeds of a fire insurance policy covering a house owned by Mrs. Culberhouse which had burned and Higginbotham collected the insurance for the same. One of these witnesses was an attorney who testified that he advised Mrs. Culberhouse as to the statute of limitations, and that at .Mrs. Culberhouse’s request he watched to see if suit was filed before the bar of the statute had fallen, and that no suit was filed in Mrs. Culberhouse’s lifetime.
The court held the testimony of these three witnesses incompetent; and it was, no doubt, disregarded; but, even so, we are unable to say that the finding that the $15 payment was not made is not fairly supported as a reasonable inference to be deduced from all the testimony.
The time when the $15 payment was made is second only in importance to the question as to whether it was made at all. Witness R. F. Higginbotham was asked: “Q. You couldn’t be mistaken about that date (of payment) of March 21 (1933)?”, and he answered, “No, sir.” He was asked, “Q. If she paid you at all, she paid you on that date?”, and he answered, “Yes, sir.”
As appears from appellant’s testimony, Mrs. Culberhouse desired to pay the $15 as a part of the living expenses of the family of which' she was a member; but it was not so received or applied by Mr. Higginbotham. But the testimony on appellee’s behalf, is to the effect that Mrs. Culberhonse had ceased to be a member of the Higginbotham household, and had left that home as early as December 26, 1932, so that any payment made prior to that date would have been more than five years prior to the date of Mrs. Culberhonse’s death, which occurred January 3, 1938.
It is true, of course, as appellant insists, that Mrs. Culberhonse might have made this payment after leaving the Higginbotham home; but Mrs. Higginbotham testified that Mrs. Culberhonse “was out here living with us, and she wanted to give Bob $15 on the grocery bill.”
The court below found only that the $15 payment had not been made, and there was no amplification of that finding, and as we are unable to say that this finding is not substantially supported by the testimony, it must be affirmed, and it is so ordered. | [
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Smith, J.
Appellant was tried under an indictment charging Mm with the crime of grand larceny. He was convicted, and has appealed, and for the reversal of the judgment, sentencing him to a term of five years in the penitentiary, assigns only two errors. These are: (1), The refusal of the court to grant a continuance, and (2) the refusal of the court to quash the indictment.
When the ease was called for trial, appellant filed a motion for a continuance, upon which motion testimony was heard. The testimony was to the effect that appellant had employed Hon. Geo. E. Steel to defend him, and that Mr. Steel was a member of the state senate, and was at that time in attendance upon the sessions of that body. It was shown, however, by appellant’s own testimony that he applied to the Hon. J. S. McConnell to defend him, and that Mr. McConnell advised that Mr. Steel be employed in the case, because of his greater experience in criminal law practice, and that Mr. Steel had been employed. This employment was made after the General Assembly had convened, and while it was in session, and Mr. Steel was not appellant’s regularly retained attorney, and had not represented appellant in. any other matter. Upon this showing, the motion for a continuance was properly overruled. Lynch v. State, 188 Ark. 831, 67 S. W. 2d 1011; Barton-Mansfield Co. v. Higgason, 192 Ark. 535, 92 S. W. 2d 841; Cox v. State, 183 Ark. 1077, 40 S. W. 2d 427. The headnote to the case last cited reads as follows: “Under Crawford & Moses’ Dig., § 430, as amended' by act of 1931, providing that proceedings in pending suits in which an attorney for either party is a member of the legislature shall be stayed for 15 days preceding the convening of the legislature and for 30 days after adjournment thereof, held that a party is not entitled to a continuance because his attorney is a member of the legislature, and in attendance thereon, unless such attorney was his regular attorney, or was employed in the case before the legislature convened.”
After the motion for a continuance was overruled, Mr. McConnell proceeded and continued to represent appellant, and Mr. Steel has not since appeared in the case, and does not appear here, as counsel for appellant.
After the motion for a continuance had been overruled, there was then presented a written motion to quash the indictment. This motion alleged that the citizenship of Howard county is composed of approximately 80 per cent, of people of the white race and approximately 20 per cent, of the colored or negro race; that many of the persons of the negro race possessed the qualifications of electors, and are eligible to serve upon the juries, both grand and petit, of the county; yet, for many years, these negro citizens have been excluded from jury service on account of their race, and members of that race have, for many years, been entirely excluded from jury service on account of their race. This motion was duly verified.
The record contains the following recital as to the proceedings had upon this motion: “On this day the above styled cause coming on for trial, defendant waives arraignment and enters his plea of not guilty, motion for continuance filed by defendant, motion overruled, motion to quash indictment filed, motion overruled because defendant offers no evidence in support of said motion, defendant excepts, and after judgment on said motion defendant asks permission to introduce further testimony, motion overruled, exception. Jury empaneled and sworn and trial proceeds. ”
There has also been incorporated in the record the notations of the trial judge upon his docket, which read as follows:
“3/3/41 Defendant waives arraignment and enters his plea of not guilty. Motion for continuance filed by defendant. Motion overruled. Motion to quash indictment filed. Motion overruled because defendant offers no evidence in support of said motion. Defendant excepts after judgment on said motion defendant asks permission to introduce further testimony. Motion overruled, exceptions — jury empaneled and sworn — trial proceeds.”
The- trial began on March 3d, and was concluded on March 4th. There was filed, on March 4th, a motion in arrest of judgment, and on March 6th there was filed a motion for a new trial, which assigned as error the action of the trial court in refusing to grant a continuance and in overruling the motion to quash the indictment.
Testimony was heard on the motion to arrest judgment, the effect of which was to establish as true the allegations of the motion to quash the indictment in regard to the exclusion of members of the negro race from jury service. After the admission of this testimony, an objection to it was sustained, and in sustaining the objection the court said: “The court sustains the motion on the ground that there is nothing in the motion to arrest judgment which would make this testimony admissible, and the matter has already been passed on before the trial.”
The motion to arrest the judgment was properly overruled. The statute, § 4064, Pope’s Digest, provides that “The only ground upon which a judgment shall be arrested is, that the facts stated in the indictment do not constitute a public offense within the jurisdiction of the court; and the court may arrest the judgment without motion on observing such defect.”
The appeal in this case was perfected May 16, 1941. On July 5th thereafter, a motion was presented to the trial court to correct the record in the case. This motion was heard in DeQueen, the county seat of another county, and in the absence of the defendant. As amended, the record reads as follows: “On this 3d day of March, 1941, comes the defendant by his attorney, Jas. S. McConnell, and comes the State of Arkansas by her Prosecuting Attorney, Boyd Tackett, and both parties announce ready for hearing on the Motion to Quash the Indictment heretofore filed herein by the defendant. Both parties announce ready for hearing on said Motion to Quash and same is submitted to the Court upon the verified motion of defendant ■ herein and argument of counsel, and it is the judgment of the Court that said motion be and the same is hereby overruled for the reason that defendant offers no evidence in support of said motion. Defendant excepts.”
It is very doubtful, under the authority of the case of McNamara v. State, 60 Ark. 400, 30 S. W. 762, whether this amended order may be considered for any purpose; but, even so, it shows only that the motion was overruled because no testimony was offered to support it, but it does not contradict or vacate the other recitals of the record, including notations upon the docket of the trial judge to the effect that after the motion had been overruled, for the reasons stated, the defendant asked permission to introduce testimony to support its recitals.
The request to be permitted to offer testimony to support the motion was made before the trial began, and we think it was in apt time, and that it was an abuse of discretion to deny appellant this right. He did not stand upon his motion, as did the defendant in the case of Brownfield v.South Carolina, 189 U. S. 426, 23 S. Ct. 513, 47 L. Ed. 882, in which case it was said: “It is suggested that the allegations of the motion to quash not having been controverted, and having been supported by the affidavit of the defendant, must be taken to be true. But a motion, although reduced to writing, is not a pleading, and does not require a written answer. It appears from the grounds on which the judge decided it, apart from anything else, that the allegations were controverted, and under such circumstances it was necessary for the defendant to make an attempt to introduce evidence. The formal words of the motion were not enough. Smith v. Mississippi, 162 U. S. 592, 16 S. Ct. 900, 40 L. Ed. 1082.”
Here, instead of standing upon the motion, appellant asked to be'allowed to introduce testimony to support it before the trial began. The testimony was immediately available, and when appellant was finally permitted to make this proof upon the hearing of the motion in arrest of judgment, the allegations of the motion were shown to be true by the testimony of the clerk of the court, who, no doubt, was in attendance upon the court of which he was the clerk. This testimony was not actually offered until after the trial, which was, of course, too late; but the request to be permitted to offer the testimony was made after the motion to quash had been overruled but before the trial of the case commenced, which was in apt time.
The law of this subject has been definitely settled by several recent decisions of the Supreme Court of the United States, a number of which are cited and reviewed in our own recent ease of Bone v. State, 198 Ark. 519, 129 S. W. 2d 240, which case cited also our previous case of Ware v. State, 146 Ark. 321, 225 S. W. 626.
We have no discretion in following these decisions of the United States Supreme Court, and should we fail to do so, our decisions would he reversed upon appeal to that court.
It may he that appellant will he unahle to perfect and prosecute an appeal to the Supreme Court of the United States; hut this is no reason for us to deny him the relief which he would obtain, if he did so.
We think the refusal of the trial court to permit appellant to introduce testimony in support óf the allegations of his motion, made before the trial began, was error, and for this error the judgment will he reversed, and the cause will he remanded, with directions to permit appellant to make this proof, and if the truth of the allegations of the motion are established, the indictment must he quashed in accordance with the following decisions of the Supreme Court of the United States: Carter v. Texas, 177 U. S. 442, 20 S. Ct. 687, 44 L. Ed. 839; Martin v. Texas, 200 U. S. 316, 26 S. Ct. 338, 50 L. Ed. 497; Norris v. Alabama, 294 U. S. 587, 55 S. Ct. 579, 79 L. Ed. 1074; Hale v. Kentucky, 303 U. S. 613, 58 S. Ct. 753, 82 L. Ed. 1050; Pierre v. Louisiana, 306 U. S. 354, 59 S. Ct. 536, 83 L. Ed. 757. | [
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Smith, J.
On June 5, 1920, the appellant, Standard Oil Company of Louisiana, acquired an oil and gas lease on a tract of land in Union county, in which J. W. Taitón owned a 1-512 royalty interest. In 1932, H. 0. Craig obtained a judgment in the Union circuit court against Taitón and others, the lien of which has been kept alive by several writs of scire facias. The oil company had no actual notice of this judgment, and made royalty payments to Taitón for his proportionate interest until advised in May, 1935, of the existence of the judgment. Craig’s administratrix brought this suit, and recovered judgment for the amount of the royalty accruing to Taitón between the dates of the judgment and the suspension of payment of royalty to Taitón, and this appeal is from that decree.
In support of this decree we are cited § 8255, Pope’s Digest, which provides that judgments recovered in the circuit and certain other courts in this state shall.be a lien on the real estate owned by the defendant in the county in which the judgment was rendered, from the date of its rendition. We are cited also to cases holding that oil in place is real estate. It is insisted, therefore, that the judgment should be affirmed for the reason that there has been conversion’ of property which was subject to the judgment lien.
The lease under which the oil was captured and converted by the oil company contains the following clause: “If the estate of either party hereto is assigned, and the privilege of assigning in whole or in part is expressly allowed, the conveyance hereof shall extend to their heirs, executors, administrators, successors or assigns, but no change in the ownership of the land or assignment of rentals or royalties shall be binding on the lessee until after the lessee has been furnished with a written transfer or assignment or a true copy thereof.” The lease containing this clause was duly recorded.
If it be said — as it must be — that the oil company had constructive notice of the existence of the judgment, it must also be said that Craig, the judgment creditor, had notice, of the same character, of this provision of the oil and gas lease, and it is not contended that the judgment creditor advised the oil company of the existence of his judgment. It does not appear how many people were interested in this lease, but Taitón, the judgment debtor, owned only a 1-512 interest. This judgment was not shown in the abstract of title upon the faith of which the oil company purchased the lease, and could not have been, because the judgment was rendered twelve years after the lease had been acquired.
The question, therefore, appears to be whether it was the duty of the oil company to malee constant examinations of the judgment records to see if any one had acquired a subsequent lien, or whether the holder of the judgment should have advised the oil company of its rendition. The royalty accrued under this lease, which was of record, and the judgment creditor was affected with notice of its recitals, the manifest purpose of which was to provide the oil company with notice of any change in the right to collect royalties.
The judgment creditor is dead, and the suit was brought by his administratrix. Any one of the many lessors may have died, and his interest inherited by his heir or heirs. A daughter of one of the lessors might have been an only heir, and might, by marriage, have changed her name, but a judgment recovered against this heir would be a lien, under § 8255 of Pope’s Digest against her interest in the leased land. In such a case, or in similar cases, it would be difficult, if not impossible, for the oil company to know to whom payment should be made.
It would, in our opinion, impose an unreasonable burden upon the lessee to keep informed as to these possible changes in ownership, and especially so when, by the terms of the lease, it had the contractual right to be advised as to changes in ownership. The purpose of this provision in the lease was to enable- the lessee to pay the royalty to the persons with whom it had contracted to pay without the peril of being compelled to pay royalty more than once.
In some cases, if not in this, the judgment creditor might not be unwilling for the judgment debtor to collect the royalties, but, if not, the judgment creditor should have so advised the lessee, and have given it the information for which the lease provided.
In Volume 3, Summers Oil and Gas, § 590, p. 428, it is said: “Covenants to pay royalties run with the land so that an assignee of a royalty interest is entitled to receive the royalty from the lessee or his assignee. Leases practically always provide that the lessee is not bound by changes in royalty ownership until notice of such change has been given in writing. In the absence of such notice, a lessee is not guilty of conversion of royalty oil for nondelivery or nonpayment to the assignee of a royalty interest, constructive notice of recorded transfers of royalty interests not being sufficient. A pipe line company purchasing the oil from a lease is protected against conversion of royalty oil at the suit of a royalty owner or his assignee in the absence of notice of change of ownership in the royalty interest. ’ ’ Our case of Shreveport-El Dorado Pipe Line Co. v. Bennett, 172 Ark. 804, 290 S. W. 929, which construed a lease containing identical provisions in regard to notice of change of ownership, as herein set forth, is. cited in support of the text quoted.
The decree will, therefore, be reversed, and the cause will be dismissed. | [
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Smith, J.
Appellant, L. K. Person, brought suit to recover damages resulting from the construction of a loop levee through and across the north half and the southwest quarter of section 13, township 15 south, range 26 west. There was a judgment in his favor for $1,306.80, from which he has appealed.
This land is protected from the flood waters of the Red River by a levee built by Miller Levee District No. 2. Because of caving banks, the original levee was regarded as insecure. It was shown that the average rate of caving of the banks of the river over a period of ten years had been 25 feet a year, and at one point in this section 13 the river was only 40 feet from the levee, and for a quarter of a mile the river was not farther than 100 feet from the top of the levee. The aid of the federal government was invoked and promised to build a loop levee, but upon the condition that the necessary right-of-way should be secured without cost to the government, and that the government should be indemnified against lia bility for any damages incident to the construction of the loop levee.
The application for this aid was made May 17, 1938, and a survey was made by the government engineers, and a map of the survey was made under date of July 19, 1938. The loop levee was necessary for the protection from overflow of about 75,000 acres of land, largely in cultivation, and the safety of the two thousand to two thousand five hundred people living thereon, and it was desired that this loop levee be constructed in time to afford protection against the annual rise of the river during the winter and spring.
Negotiations for the necessary right-of-way were begun with the riparian owners whose lands were affected, and Mrs. May B. Dale was one of this number. She owned a tract of land adjacent to section 13. When these negotiations were begun, the Texarkana National Bank had title to the land in section 13, having acquired title in the manner recited in the opinion in the recent case of Person v. Miller Levee District No. 2, ante p. 173, 150 S. W. 2d 950. These negotiations, so far as section 13 is concerned, were conducted by a committee of the levee district with the president of the bank and its officer having charge of its lands. The testimony in regard to these negotiations is voluminous and to some extent conflicting. The point about which they disagreed was that of compensating the bank for the damages to the land which would be left on the river side of the levee without flood protection. The president of the bank desired compensation for this damage, which the committee of the levee district declined to pay.
The lands of Mrs. Dale were in the same situation, and the committee of the levee district agreed with her to compensate all her damages by paying her $40 per acre for all of her lands taken for levee purposes, and moving her houses back of the levee. The president of the bank was advised of this situation, and knew that the levee district would not agree to pay damages resulting from the failure to afford levee protection to a portion of the land.
The time arrived when the levee district could no longer delay, and it was determined to institute condemnation proceedings if the right-of-way could not be acquired by agreement. Accordingly, a meeting of the board of directors was called on November 3rd to close the deal for the right-of-way or to institute condemnation proceedings. The right-of-way committee reported that they had reached an agreement with Mrs. Dale, whereby she would be paid $40 per acre and have her plantation houses moved at the cost of the levee district. The chairman of the board called the president of the bank over the telephone from the room where the board meeting was in session. Other members of the board present in the room could hear only one end of the conversation, but from this they knew what was being said. At the conclusion of the telephone conversation the chairman reported to the other members that the president of the bank had accepted the same terms offered Mrs. Dale.
The federal engineers were notified that the right-of-way had been procured, and signs were at once placed on the land by the government engineers showing the right-of-way to be used, and the construction contract was let on November 8, 1938, and the removal of the houses off the right-of-way began between the middle of November and the first of December. Before moving the houses, the district’s engineer asked the bank’s land man about their removal and relocation, and was told to consult the tenant in possession, and this was done. All the right-of-way was cleared during January and the work of moving earth began in the early part of February. The levee was completed in May, 1939. The land was measured, and it was ascertained that 32.67 acres of the land had been taken. This acreage at $40 per acre amounted to $1,306.80, and a check for that amount was delivered to the president of the bank, who, upon examination of the check, found that it was tendered in full satisfaction of all damages, whereupon he declined to accept the check and returned it.
In the meantime the bank had, on December 8, 1938, contracted to sell the land to one Lowe, it being agreed between the bank and Lowe that any damages collected from the levee district should be credited on the purchase price of the land. The contract between the bank and Lowe expired, by its terms, December 31, 1938, but at some time before that date, and in some manner not entirely clear, appellant, Person, acquired the contract from Lowe with the consent of the bank. However, as the result of an independent trade between the bank and appellant, the bank, on March 27,1939, conveyed the land to appellant.
On August 4, 1939, appellant, Person, filed suit for the damages to the land, upon the allegation that he was the owner of the “equitable right of redemption” of the land. On January 11, 1940, the bank filed an intervention, in which it alleged that it had, on March 27, 1939, conveyed the land in controversy to appellant, and had, on December 21,1939, executed a supplement to said deed to appellant containing the following recitals:
“Whereas, in the negotiations leading to the execution and delivery of said deed it was the understanding on the part of the grantor that all rights of the grantor entitling it to any compensation for land taken, and damages done to land not taken, which it might collect or be entitled to collect, from said Miller Levee District No. 2, through negotiations or otherwise should be credited to or pass to the grantee as his property incidental to the land as conveyed by said deed, and it was so understood by grantee; and
“Whereas, said grantor has collected nothing from said Miller Levee District No. 2, and grantee being entitled to the claim and the right to collect or enforce payment of same for any part of the land taken and any damage done to any land not taken which is included in said deed, and it being understood by both parties to said deed that all such rights passed by said deed to grantee; and as grantee is the legal and equitable owner of same, and it being the desire of the grantor to remove any doubt as to this,” etc.
After this intervention was filed the levee district, on March 4, 1940, filed a motion to transfer to equity, which motion was sustained over the objections and exceptions of appellant. Thereafter the cause proceeded as a suit pending- in the chancery court, and after hearing-much testimony a decree was rendered upon the following finding of facts recited in the decree:
“That, the defendant levee district purchased from the Texarkana National Bank on or about the third day of November, 1938, and that on said date the Texarkana National Bank, then being the owner of the land, sold to the defendant the right-of-way needed for levee purposes over and across the lands at issue in this cause, with all the appurtenances and damages incident thereto.
“That, the price to be paid for said right-of-way was the same price paid Mrs. May B. Dale for right-of-way over and across her land immediately adjoining and lying south of the lands at issue in this cause. Said price being the. sum of $40 per acre, and the agreement on behalf of the defendant to move without expense to the bank all houses and buildings from said right-of-way or on lands outside of said right-of-way to the inside, or land side, so they would be protected by the new levee.
“The court further finds that the defendant, with the knowledge and consent of said bank, immediately after purchasing said right-of-way from the bank, entered into possession of same, moved the houses in accordance with the agreement and delivered possession of the land to the engineers of the U. S. Government who caused the levee to be built as at present located over and across said right-of-way.
‘ ‘ The court further finds that immediately after the completion of the building of said levee the lands were measured and the defendant tendered to the Texarkana National Bank the agreed price for the lands taken and used at $40 per acre, to-wit: $1,306.80, and that said sum has been tendered into court by the defendant, on date answer was filed, and the.tender has at all times been kept in effect by the defendant.
“The court further finds that by deed of date December 21, 1939, now of record in Deed Beeord Book 124, p. 48 of the county of Miller, state of Arkansas, the. plaintiff, Texarkana National Bank, conveyed unto its joint plaintiff, L. K. Person, all rights and claims that it had against Miller Levee District No. 2 for the lands taken for right-of-way purposes, over and across the land at issue, and authorized said L. K. Person upon the collection of the consideration for said right-of-way and damages, to receipt for all moneys collected and to execute a complete release to the defendant, levee district, for said moneys and from any further liability.
“The court further finds that the agreed price of $40 per acre was for the use of the land taken for levee purposes, and also for all injuries or damages connected with or incident to the erection of said levee over and across said right-of-way.”
If this finding of facts is not contrary to the preponderance of the testimony, we are relieved of the necessity of considering and deciding several interesting questions discussed in the briefs of opposing counsel; and we think it is not.
Upon the issues joined, we think there was no error in transferring the case to the chancery court. The plaintiff alleged only an equitable title (the nature of which is explained in the recent case of Person v. Levee District, supra) to the land which had been conveyed to him when the bank sold the right-of-way to the levee district. The legal title was conveyed by the subsequent deed from the bank, whereas the right-of-way had been previously acquired from the bank for an agreed consideration.
The bank, with knowledge that possession had been taken of the levee right-of-way and under an agreement, as found by the court, for an agreed consideration, contracted to sell the land to Lowe. According to appellant’s pleadings, the bank had agreed to the sale of its contract with Lowe to appellant, and had deeded the land to appellant on March 27,1939, and had later, on December 21, 1939, conveyed to appellant the right to collect from the levee district any compensation for lands taken or damaged, which right the bank was apparently holding as trustee for appellant under its trade with him. After the rendition of the judgment for damages, appellant assigned the judgment to the bank. The state of this title and the respective interests of the parties was, we think, a matter cognizable in equity.
Here, the levee district had acquired the equitable title to the land through its oral agreement with the bank, and the right to have the legal title vested in it upon paying this acreage price after taking possession of the land. After this had been done the bank contracted to sell to Lowe who sold his contract to appellant, and the bank, still later, sold and delivered the land to appellant, who had knowledge of the possession of the land by the levee district. The true state of this title was, therefore, a question cognizable in equity.
The statute of frauds is pleaded against the assertion of the title in the levee district; but it was said in the case of Pledger v. Garrison, 42 Ark. 246, that “. . . no principle is more firmly established than that delivery of possession under a parol contract for the sale of land takes the case out of the statute of frauds.” That holding has since been reaffirmed in many cases, one of the latest being that of Ferguson v. The C. H. Triplett Co., 199 Ark. 546, 134 S. W. 2d 538.
Here, under the findings of the trial court, which we think the testimony sustains, there were no damages to be assessed. These were compromised under an agreement to pay $40' per acre for the land actually taken, and to remove the houses, which was done. It remained only to ascertain the acreage taken, and this was done as soon as that fact could be ascertained by a survey, the accuracy of which is not questioned.
In other words, the levee district, through its trade with the bank, under which possession was taken and the levee constructed, acquired the same title it would have acquired had a deed been made to the right-of-way. The agreement to pay $40 per acre for the land taken and to remove the houses is, in effect, a consideration for the deed to which the levee district became entitled, and this was intended to compensate the right-of-way damages.
It was held in the case of Daniels v. Board of Directors of St. Francis Levee District, 84 Ark. 333, 105 S. W. 578, that where a landowner granted to a levee district a right-of-way across his land for the purpose of constructing a levee, he cannot thereafter sue the district for damages which resulted from its construction or maintenance if the levee was constructed and maintained in a skillful manner. There is no allegation or proof here of improper construction or maintenance.
The decree is, therefore, correct and will he affirmed. | [
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Mehaffy, J.
This is a suit by the appellee on a claim against the estate of Dr. J. H. Colay, deceased, and therefore the appellee was not a competent witness to testify to transactions with, and statements made by, the intestate in reference to the matter in controversy. Section 5154-, Pope’s Dig'est.
This court has construed this statute many times, one of the late cases being Graves v. Bowles, 190 Ark. 579, 79 S. W. 2d 995. The court there said: “While the burden of'proof is upon the claimant to show such facts as would justify the court in .implying that there was a contract to be performed, he cannot do so by his own testimony when it violates the above mentioned statute.”
The appellee filed her claim against the estate of Dr. Colay and attached a canceled check for $500 which she testified was a loan to Dr. Colay.
The appellant objected to the testimony of appellee and the trial court evidently took- the view that her testimony was not sufficient to prove her claim, and the court therefore stated: “I would advise you, if you are sincere in your objection, not to introduce any testimony.” The attorney said he was sincere; that it was the contention of the appellant that the check was given in payment of services rendered by Dr. Colay to Mrs. Reid.
The appellant thereupon introduced Miss Pauline Kendrick. She testified that she was the bookkeeper and office girl for Dr. Colay during his lifetime; that she began working on August 1, 1938, and worked for him until his death on August 15, 1939, and made most of the entries in the books. She was then handed a book and asked if that was the book kept in the office of Dr. Colay, and she answered that it was; that the entries were in his handwriting until she began to work for him. She was then asked what the -book showed, and the appellee objected, and witness was asked if she entered on that book such items as Dr. Colay gave her to enter, and she said that she did; that all she knew about the correctness of these items is that Dr. Colay gave them to her to enter on the book; she made the entries on the book on instructions from the doctor. She further testified that she was in the office the day the check was given by Mrs. Reid to Dr. Colay; she was not in the private office, but was in the outer office when Mrs. Reid came out, and Dr. Colay told her to mark Mrs. Reid’s account paid in full, that she had paid him $500; the item was not dated, but simply marked “paid in full.” She also testified that the doctor told her the $50 cash from him was money Mrs. Reid borrowed; she balanced the book after Dr. Colay’s death, and it showed a balance of $52.50. On the day that Mrs. Reid gave him the $500, he told witness to mark the account paid in full, and she did that, and he said she gave the $500 for medical services and other work. None of these statements was made to witness in the presence of the appellee.
Here appellant introduced page 36 of the account book of Dr. Colay. This account, as shown by the books, began in 1937, about a year before the secretary went to work for him, and continued down to April 28, 1939, and after that was marked “paid in full.” This account shows numerous charges, something over 20, for services and also shows several'payments made at different times, reducing the amount that the book showed Mrs. Reid owed Dr. Colay, approximately $34 on the day he received the check for $500.
There are no other items on the books, no other charges against Mrs. Reid. It therefore appears from the evidence introduced by appellant, that her account was approximately $34 at the time the $500 check was given, and there is no evidence in the record that the appellee owed Dr. Colay any other amounts. If he had any other charges against her, they would evidently have been shown on the books.
The appellee testified that at the time she loaned him the $500 she paid her account. There is no evidence as to how she^ paid it, whether by check or cash. The evidence also shows that Mrs. Reid had received money from the insurance company after the death of her husband, and it was with this insurance money that she paid her account and loaned the doctor $500.
The evidence, therefore, shows conclusively without the appellee’s testimony that at the time Mrs. Reid gave the check for $500 she owed the doctor approximately $34, and this is evidence introduced by the appellant. There is some evidence that the doctor advised her and helped her with ordering lumber for her building, but the evidence also shows, by appellant’s witnesses, that the doctor did not pay anything to the lumber companies, but that it was all paid by Mrs. Reid.
The probate judge found in favor of appellee, and the case is here on appeal.
The question is whether there-is sufficient evidence to sustain the finding of the lower court that this $500 was a loan, and not the payment of a debt.
It is stated in 5 R. C. L. 486: “It is undoubtedly the general rule that in the absence of explanation the presumption arising from the delivery of a check is that it was delivered in payment of a debt and not.as a loan. A check, on its face, is a mere order to another to pay money; it does not by its terms settle the question whether the money was to pay a. debt or was a loan. The presumption that it was to pay a debt arises, like other presumptions, from the ordinary course of business; it puts the party to show that in the case in hand the ordinary course of business was departed from. It is to be remembered that the presumption is one of fact, a mere rule of argument, proceeding from convenience, the common experience being that a check drawn on a bank of deposit is much more frequently a means of payment than otherwise; and the presumption is overcome by proof of circumstances from which it may fairly and reasonably be inferred that the transaction was in fact a loan.”
The same rule is announced in a note on page 1203, Ann. Cas. 1913D; Jones Commentaries on Evidence, Yol. 1, p. 392.
The witnesses for appellant having testified that the account was paid in full, it was competent for the appellee to testify that it was paid in addition to the $500 loan.
In the case of Nay v. Curley, 113 N. Y. 575, 21 N. E. 698, the New York court said: “If, in substance, the fact sought to be elicited respects a personal transaction, and tends directly to disclose a personal transaction, or the presence or absence of .some element in a personal transaction, then the fact is not, we think, an independent one, and the survivor is precluded from testifying to it, unless the way is opened by his examination by the other party. Tooley v. Bacon, 70 N. Y. 34; Maverick v. Marvel, 90 N. Y. 656; Koehler v. Adler, [70 N. Y. 287] supra; Lerche v. Brasher, 104 N. Y. 157, 10 N. E. 58; Clift v. Moses, 112 N. Y. 426, 20 N. E. 392. The examination of the defendant by the plaintiffs as to the existence of a debt between the witness and the intestate when the check was given, directly bore upon the nature and character of the transaction, and was an indirect method of proving* the transaction itself. They therefore made the defendant a competent witness to testify in his own behalf as to the same transaction. ’ ’
The law seems to be well settled that the presumption that a check was given for the payment of a debt is overcome by proof of circumstances from which it may fairly and reasonably be inferred that the transaction was, in fact, a loan.
We think the facts and circumstances introduced by the appellant overcome the presumption, and show that the check was given as a loan and not in payment of a debt.
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Smith, J.
Appellee is the widow of Bob Severe, and in that capacity sued the appellant railroad company for damages to compensate the alleged negligent killing of her husband. Sbe recovered judgment for a thousand dollars, from which is this appeal.
The testimony is to the effect that deceased had been drinking for several days. His wife had not seen him for three days; indeed, she had gone to the home of her mother, as she had done on four or five previous occasions when her husband became intoxicated.
About 7 o’clock p. m., or a little later, on November 28, 1939, Severe entered the store of Archie Maroney. He had a 16-pound sack containing bottled beer. Severe opened and drank one of these bottles while in Maroney’s store. A train had just passed the flag-station at Perla where mail had been discharged, and Maroney went to the station to get the mail and put it in the post office. He drove to the station in his car and Severe accompanied Mm. After putting up the mail, Maroney started to accompany Severe to Severe’s home, which would have been reached by walking about a quarter-of-a-mile south or along the railroad track. Severe’s home was about 500 feet from the railroad track. There was a path, which the witnesses referred to as a trail, along the west side of the track. Holding Severe by the arm Maroney walked with him down this path for a distance of about 150 feet, when Severe asked Maroney where he was going. When Maroney answered that he was going home with him, Severe said he did not want anyone to go home with him, and Maroney went no farther, but he testified that he watched Severe for a minute or two as he sauntered down the path.
Maroney was, no doubt, the last person to see Severe-alive. When Maroney learned early the next morning that Severe had been killed by a train, he went to the place where Severe’s body was lying, and he testified that the body was about 600 feet south of the place where he parted company with Severe. The body was lying in the trail about three or four feet from the cross-ties. Maroney testified that when he got on the track at the street — the point from which he and Severe started walking towards Severe’s home — he could see something near the track, but could not tell what it was. It was then daylight. The sack, containing four unopened bottles of beer, was found near the body. There is a slight, but unimportant, difference in the testimony as to the exact distance of Severe’s body from the track; but none of the witnesses placed the distance at less than three feet. Severe had been struck on his head, evidently by some portion of a train, and his skull crushed. A number of witnesses testified that after making an examination they discovered no blood or brains on the rails or between them, but one witness, a young lady, testified: ‘ ‘ There was brains and blood all over the rails, and four or five cross-ties had brains and blood on them in the middle of the track.” We must assume that the jury credited this testimony, although it is opposed by that of numerous other witnesses, and that there were brains and blood in the middle of the track. But, even so, this did not prove that the body was between the rails when struck. The body was not mutilated except the wound on the skull, and otherwise there were no broken bones. None of the beer bottles were broken, and none of them were found between the rails. They were still in the sack. All the witnesses agree that there was no disturbance of the gravel between the rails, and there was no evidence that the body had been dragged for any distance. Severe’s vest was torn. When last seen Severe was not between the rails nor on the track. He was walking in the trail. But he had walked only about 600 feet after Maroney left him. Maroney testified that when he left Severe the signal lights were green at the time, which indicated there was no train in the block. Maroney further testified that it was an hour or more after he left Severe before any train passed traveling either north or south. In that hour’s time, Severe had traveled only about 600 feet. The track was straight in both directions.
The complaint alleged and the testimony shows that Severe was struck by a southbound train. Five trains, either passenger or freight, passed Perla between 7 p. m. and the time when Severe’s body was found. The engineers and firemen of all these trains testified that proper lookout had been kept, but no one had seen Severe.
To hold the railroad company liable in this case would be to make it an insurer against inflicting injury on a trespasser. It would be necessary — to make a case for the jury — to prove only that a body was found near the track upon which a traumatic injury had been inflicted sufficient to produce death. But the law has never been so declared.
Our present Lookout Statute — § 11144, Pope’s Digest — upon which appellee relies for the affirmance of the judgment was first construed in the case of St. Louis, Iron Mountain & Sou. Ry. Co. v. Gibson, 107 Ark. 431, 155 S. W. 510, and in the second appeal in the same case, reported in 113 Ark. 417, 168 S. W. 1129.
The facts in the Gibson case are more fully stated in the first opinion than in the second. In the first opinion it is recited that ‘ ‘ There was testimony to the effect that Gibson had been drinking during the day and several persons saw him sitting on the side of the railroad track; one witness stated that he passed him sitting there, and that he had gone about 1,000 yards down the track when he met the approaching train and stepped off the track to let it pass; that before he did so he looked back and could see Gibson still sitting up and could see the headlight shining on him.” [107 Ark. 431, 155 S. W. 511.]
It was stated in both opinions that the testimony presented a question for the jury whether Gibson’s presence on the track could have been discovered in time to have avoided injuring him had a proper lookout been kept.
But in the construction of our Lookout Statute in the first opinion, it was said that “It was not intended, however, that upon proof of the killing of a trespasser by the operation of a train that the presumption should arise that the killing was negligent and the plaintiff entitled to recover damages without showing anything further, and casting the burden of proof upon the company to show that it was not guilty of any negligence, causing the death, as declared in said instruction numbered 1.”
In the second opinion in the same case it was again held that a case had been made for submission • to the jury as to whether an efficient lookout had been maintained, that question having been submitted under an instruction reading, in part, as follows: “ ‘And the burden is upon the plaintiff to prove by the testimony, facts sufficient to raise a reasonable inference that the danger might have been discovered and the injury prevented by the trainmen, if a lookout had been kept. And, if the plaintiff has proved such facts sufficient to raise such inference, your verdict should still be' for the defendant, if you find from a preponderance of the testimony that a constant lookout was kept by the- enginemen, and that they used ordinary care to prevent the injury after actually discovering that deceased was in peril.’ ”
In approving this instruction it was there said: ‘ ‘ The giving of this instruction shows conclusively that the court did not intend to place the burden upon the defend ant in the whole case, but it in express terms told the jury that the mere fact that Mr. Gibson was killed by the train did not entitle appellee to recover damages for his death, and that before appellee could recover she must make out a prima facie case by the introduction of proof from which the jury might have inferred that the danger to Gibson might have been discovered', and his death avoided, if the lookout required by the statute had been kept and that when this prima facie case was made by appellee, then the burden devolved upon the defendant to show by a preponderance of the evidence that such lookout was kept.”
In other words, the mere finding -of the body of' a trespasser, apparently killed by a train, near or on the track, does not, of itself, make a case for the jury. It must be further shown, by testimony sufficient to raise a reasonable inference, that the danger might have been discovered and the injury averted by the trainmen, if a proper lookout had been kept. When testimony has been offered, sufficient to sustain the reasonable inference that the danger could have been discovered had the efficient lookout required by law been kept, then the burden devolves upon the railroad company to show, by a preponderance of the evidence, that such a lookout had been kept, and it is liable when it fails to do so.
Here, the undisputed testimony shows a lookout had been kept, and there is no testimony to support any reasonable inference to the contrary. Unlike Gibson, Severe was not seen sitting on the track. Under the undisputed testimony, Severe had been, for more than an hour, at the' place where his body was found, and the only reasonable inference to be drawn from the testimony Is that, in his inebriated condition, he had fallen into a drunken sleep, with his head near enough to the rail to be struck by. a southbound train. That he was not between the rails or on one of them is shown conclusively by the fact that, except for the injury to his skull, his body was not mutilated.
Under these circumstances, we think it was error to submit to the jury the question whether an efficient lookout had been maintained, and ■ whether the injury would have been averted had such lookout been maintained, when the only testimony upon this issue is to the effect that it had been.
This case is controlled by such cases as St. Louis-San Francisco Ry. Co. v. Pace, 193 Ark. 484, 101 S. W. 2d 447; Missouri Pacific Rd. Co. v. Ross, Admr., 194 Ark. 877, 109 S. W. 2d 1246; Missouri Pacific Rd. Co. v. Penny, 200 Ark. 69, 137 S. W. 2d 934.
In our opinion, no liability upon the part of appellant railroad company has been shown, and as the ease has been fully developed, the judgment will be reversed, and the cause dismissed.
Humphreys and Mehafey, JJ., dissent. | [
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McHaney, J.
In November, 1928, H. S. Dorsey purchased at a foreclosure sale in the Federal District Court •at Texarkana, Arkansas, a large body of lands in Miller county, including the lands in controversy now claimed by appellees and described as south half, southwest' quarter, section 16 and the west half of section 21, 18 south, 26 west. Shortly after acquiring the title, Dorsey executed deeds of trust upon said lands, including those just described, to a trustee to secure a large indebtedness to John W. Seids, Jr. The deed of trust covering the above described lands in section 16 also included a total acreage of 880 acres, securing an indebtedness of $30,000, and the deed of trust covering the above tract in section 21 also included a total acreage of 1,431 acres, securing an indebtedness of $29,000, both deeds of trust being promptly recorded in Miller county. These deeds of trust were assigned by Seids to Northern States Life Ins. Co. and by its receiver to appellant on April 4, 1933. In that year G-arland Levee District and its receiver brought suit against Dorsey and others to foreclose its lien for delinquent levee taxes due for the years 1930 and 1931, which resulted in a decree of foreclosure on July 27,1933. Sale was had under this decree on February 28, 1935, at which time the district became the purchaser. The sale was approved, and commissioner’s deed issued to the district on April 25, 1935, which appellant says was “within the two years’ period of redemption provided for by law.”
On September 1,1935, Dorsey conveyed by quitclaim deed to appellees, Martin and wife, 80 acres of the land above described in section 21, and in September, 1935, Dorsey conveyed by quitclaim deed to appellees, Combs and wife, 40 acres of the land above described in section 16. There was no deed from Dorsey to the other appellee, W. O. Potts.
In November, 1935, appellant brought suit to foreclose said deeds of trust, which it held as assignee, against Dorsey and wife, and many other persons, but none of said appellees were made parties, as the deeds 'of Dorsey to Martin and Combs were not recorded until December 23, 1935, more than one month thereafter. This suit resulted in a decree of foreclosure on September 30, 1936, condemning all the lands for sale covered by said deeds of trust including the lands claimed by appellees abové described. Sale was had on March 15, 1937, and appellant became the purchaser of all the lands, which sale was reported to and approved by the court, and the com missioner’s deed to it was executed and approved on March 22, 1937.
On March 23, 1936, the Garland Levee District and its receiver procured another foreclosure decree against said lands for the levee taxes of 1932 and 1933, which resulted in another sale to the district on June 13, 1936. Another foreclosure and sale to the district occurred in 1937 for the delinquent taxes of 1934-35. On October 3, 1936, the district by its receiver conveyed to appellee Martin the 80 acres now claimed by him in section 21, the consideration being’ the taxes, penalties, interest and costs accrued and owing thereon for the years 1930-1935, inclusive. On October 20, 1936, the district conveyed to appellee, Combs, the 40 acres in section 16 now claimed by her and to appellee, Potts, the 40 acres in section 21 now claimed by him for like considerations.
On May 7, 1938, appellant filed separate actions against each appellee, by which it sought to redeem the land purchased by each from the district from the levee district sale of 1936. By an .amendment filed in June, 1940, it alleged that appellees had acquired title to said lands from Dorsey in 1935, while subject to its mortgage, and that their purchase from the district in 1936 amounted only to a redemption from the district sales, which inured to its benefit, and prayed that it be permitted to redeem from appellees, and that a time be fixed in which appellees might pay off a proportionate amount of its mortgage indebtedness against said lands, and if not paid, title thereto be quieted in it upon payment by it to them of any taxes paid by them.
While this suit was pending, appellant brought another action against the district and its receiver on October 17, 1939, to cancel, set aside and hold for naught the three decrees above mentioned by which said lands were sold to the district for delinquent levee'taxes. Trial of that suit resulted in a decree sustaining the 1935 sale to the district and in holding the 1936 and 1937 sales ineffectual and invalid because, at that time, title was already in the district by reason of the 1935 sale. This case was appealed to this court and was affirmed, Jan- nary 22, 1940. Lincoln Nat. Life Ins. Co. v. Wilson, Receiver, 199 Ark. 732, 135 S. W. 2d 846. We there said: “In the present action it was admitted by the receiver and appellant that if the sale and deed in canse No. 3811 (1935 sale) for levee taxes of 1930 and 1931 were valid, the lands being owned by the district or its receiver, they could not again be sold for levee taxes, since the title was in the district, under the authority of Crowe v. Wells River Savings Bank, 182 Ark. 672, 32 S. W. 2d 617, and Oliver v. Gann, 183 Ark. 959, 39 S. W. 2d 521.” Appellees here intervened in that action and were also appellees there. The effect of that decision was to hold the 1935 sale to the district valid and the 1936 and 1937 sales invalid. It was there stipulated in open court that said “cause, shall be heard as to said interveners only upon the issue of the validity of the decrees and foreclosure sales set forth in plaintiff’s amended and substituted complaint, and sought by said complaint to be set aside.”
Appellees in the case now at bar denied appellant’s right to redeem, or that their quitclaim deeds from Dorsey obligated them either to pay the mortgage indebtedness to it or the levee taxes for its benefit, or that their purchase from the district was a redemption. They also pleaded the decision in the former appeal in bar of the present action to redeem and that the 1936 sale to the • district, being invalid, there was nothing to redeem from. Trial resulted in a decree dismissing appellant’s complaints as 'being without equity, and quieted the title to the respective tracts in the respective appellees. This appeal followed.
The former appeal is res adjudicata of the question of the validity of the 1935 sale to the district and of the invalidity of the 1936 and 1937 sales.
Appellant makes two contentions for a reversal of this decree, as follows: 1, That appellees’ levee district deeds amount to a redemption only; and, 2, if that is true, then their only right is to redeem from the Dorsey mortgages.
We cannot agree with either contention. In fact, if appellant is wrong as to the first proposition, the second necessarily falls, as it assumes the correctness of the first. Appellant acquired its mortgages in April, 1933, the year in which the first suit to foreclose for the delinquent levee taxes of 1930 and 1931 was brought, which resulted in the decree' of July 27, 1933, and sale on February 28, 1935. Appellant could have paid these taxes at any time before sale and could have redeemed at any time after sale within the period of redemption which appellant says is two years, or on or prior to February 28, 1937. It did not do so, but instead waited until May 7, 1938, more than a year after the period of redemption had expired from the only valid sale made to the district, when it brought these actions to redeem from the 1936 sale. The contention now relied on was not raised by appellant, until June 27,1940, about five months after the decision of this court on the former appeal, in a third amendment to the complaint, and more than two years after the original complaint was filed. Appellant says: “Having acquired the interest of Dorsey in these lands, and having entered into possession under their purchases from him, they stand in the shoes of Dorsey and any taxes paid or redemptions made by them after their purchases amounted to no more than if Dorsey himself had made the payments and redemptions.” They assume a state of facts, that appellees entered into possession under their purchase from Dorsey, that do not exist, or, at least, not shown by this record. It cannot be true as to Potts, because he does not cMm under a deed from Dorsey, and it is not shown that either of the appellees entered into possession until after they acquired title from the district under deeds based on valid sales in 1935. Reliance is placed by appellant on such cases as Deaner v. Gwaltney, 194 Ark. 332, 108 S. W. 2d 600, holding that a deed executed by a levee district to one in possession, claiming to be the owner, and deriving the rents and profits therefrom, is a mere redemption, because it was his duty to pay the taxes for which the land was sold to the district. Such a person is held, in many cases, to be under the legal obligation to pay such taxes and, therefore, cannot acquire title by a sale for the taxes which he should have paid. That principle is well settled as shown by the numerous cases cited in that case, but it has no application here because it is not shown that Martin and Combs entered into possession under the deed from Dorsey or that they were receiving* the rents and profits under a claim of ownership, or that they were under any duty to pay the taxes to the district, and in no event could it apply to Potts.
Appellant also relies on Vernon v. Lincoln National Life Ins. Co., 200 Ark. 47, 138 S. W. 2d 61, in which a tract of land, covered by the mortgages herein mentioned, was in controversy, and in which Vernon was claiming title under a quitclaim deed from Dorsey. The case has no application here. Vernon was in possession under his deed from Dorsey, was made a defendant in the foreclosure action by the Lincoln National and that action was to dispossess him by a writ of assistance. This court stated “that the only question involved in this appeal is whether appellant was entitled to improvements . . .”
We agree with the trial court that the complaint was without equity and the decree so holding is accordingly affirmed. | [
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McHaney, J.
The late Michael Meager died testate in Texarkana, Miller county, Arkansas, in 1910. His will was duly admitted to probate. After making provision, in the first paragraph of his will, for the payment of his debts, etc., he devised certain real properties in Texarkana and elsewhere, in paragraph two, to certain persons named, in trust for the purposes set out in paragraph three, as follows: “It shall be the duty of the trustees above named, after my death, to proceed as speedily as possible to convert all of the property conveyed to them by these presents into money, in any event within five years, and out of same, first pay my debts, legal liabilities and funeral expenses aforementioned, and then out of the remainder first purchase a suitable lot in or near said city of Texarkana, and erect thereon a suitable building for a charity hospital, for the treatment of all poor and indigent persons in need of medical attention, and such other persons as the trustees above named, or their successors, shall under rules and regulations permit and that the remainder of said fund after erecting a suitable hospital building, shall be invested by said trustees in such securities as they may deem safe and the interest arising therefrom shall be devoted annually to the maintenance of said hospital.
“I leave it to the discretion of the said trustees or their successors in trust, as to what proportion of the fund which shall be at their disposal, shall be invested for the ground and buildings aforesaid and the furnishings thereof and what proportion shall be used for investment for the maintenance of same.”
The remaining trustees were given the power.to fill vacancies in their number caused by death, resignation or refusal to serve. Appellees are the successors to those trustees named in the will. On October 26, 1940, they entered into a written contract with appellaht for the sale to it of lots 11 and 12, block 73, of the city of Texarkana-for the sum of $36,000 in cash, by the terms of which it was provided that, in the event counsel for it failed to approve the title and the authority of the trustees to convey, the latter should bring a test suit in chancery which should be prosecuted to this court to determine these questions. Thereupon a deed was executed by appellees conveying the property to appellant, which deed and $36,000 in cash were deposited in escrow, together with the assignment by appellees to appellant of a 99-year lease on said lots to appellant, executed by the testator in his lifetime, to await the outcome of said suit. Apx>ellees brought this action for specific performance. Issue was joined on the title of the trustees, but it is now conceded that they have a good title, and upon their power under the will to convey, under the circumstances hereinafter stated. Trial resulted in a decree for appellees and this appeal followed.
Acting pursuant to the directions contained in the will above quoted, the trustees liquidated all-the testator’s property, exoexct the two lots here involved and the 99-year lease thereon from which they received an annual rental of $1,800 from appellant plus all general and special taxes thereon. With the funds so received they purchased a property known as the Dale Sanitarium, being four lots with the buildings thereon, and converted it into a 35-bed hospital, equipping same with X-ray and other laboratory facilities needed and necessary in the operation of a hospital. In 1916, they leased the hospital and all its facilities for a period of 25 years to the Sisters of Charity of the Incarnate Word of the Diocese of Gralveston, a Texas corporation, organized for the purpose of charity and engaged in the business of operating hospitals for the poor and others in several cities. The reason for this lease was, that, after building and equipping the hospital, they had insufficient funds on hand to maintain it. Said lease expires September. 26, 1911, and the lessees have given notice that they will not renew the lease. The complaint alleges and the proof shows that the plant of the hospital is old, inadequate-, obsolete, and so small as to render it impossible for the Sisters of Charity to maintain same and properly carry on their charitable work; that appellants do not have sufficient funds to maintain and operate the hospital even if a proper plant were provided; and that the charitable purposes declared in said will of the testator will be defeated, unless the trustees are permitted to sell these lots and make the donation provided in a contract which they have executed with said Sisters of Charity and with the trustees of Memorial Hospital. In 1939, the public-spirited citizens of Texarkana pledged contributions to what is now known as Trustees of Memorial Hospital, aggregating approximately $150,000, for the purpose of building a new hospital, and the Sisters of Charity will contribute $150,000 for a new hospital if the memorial trustees and appellees will contribute a like sum for the building and equipping thereof. The present site of the hospital is neither suitable nor adequate, and the present plan is to purchase a new site at a cost of about $20,000. The contract provides that appellees should prosecute a suit to final determination to determine the right of appellees to contribute the proceeds of the proposed sale to Trustees of Memorial Hospital to supplement the public subscriptions and the whole to be contributed to said Sisters of Charity for the purpose of constructing and equipping a new hospital on a new site, such site and hospital to belong to said Sisters of Charity; It binds said Sisters of Charity to forthwith prepare plans and specifications for a new hospital to cost not less than $300,000 to he approved by the Sisters. Paragraphs 4 and 5 of the contract provide: “That the sole obligation of the Sisters is to proceed speedily with the construction and equipment of the hospital and thereafter operate and maintain it in the manner customarily done in other hospitals operated by said Sisters in other towns and cities.
“That the absolute indefeasible title to the new hospital and grounds will be vested in the Sisters of Charity with the sole right to operate the same free of all conditions, reservations or restrictions, provided that should the said Sisters cease to operate or maintain the hospital for a period of six months then that the same should be sold by said Sisters together with the equipment and grounds and that the Trustees of the Memorial Hospital should be reimbursed out of the proceeds of the sale in the proportion of their contribution to the expense incident to the purchase of the lots and the erection and construction of the building.”
Appellant contends that appellees have no power to sell; that by the express terms of the will, they exercised the power given to sell within five years, sold all the property except the lots and lease here involved, set aside a portion for the construction of the hospital and set aside the remaining funds, including this property, for maintenance, as directed in the will; and that, having made an election so to proceed, their power ceased “and the remainder of the funds must be forever devoted to the maintenance of the hospital contemplated by the testator; they have executed the powers conferred; they have no further right or discretion to make a sale,” etc. We cannot agree. The undisputed proof shows that the trust will fail unless the dilemma in which appellees find themselves is relieved. The Sisters of Charity will cease to operate the old hospital on the termination of their lease on November 26, 1941. The appellees are unable to provide an adequate plant with their own funds or to even operate the old one. Confronted with this situation, they applied to the chancery court to administer the trust under the cy pres doctrine, or the doctrine of approximation, and, pursuant thereto, have formulated the plan in the contract they have entered into with the Sisters of Charity and the so-called Trustees of Memorial Hospital by which they will pool their assets with those of the others, build a charity and pay hospital to be operated by a well known charitable organization, which practically insures its perpetuity.
This court has applied the cy pres doctrine in a number of cases. One of the leading cases was written by the late Judge U. M. Bose, in Fordyce v. Woman’s Christian Nat’l Library Association, 79 Ark. 550, 96 S. W. 155, 7 L. R. A., N. S., 485, where it was said: “Devises for charitable purposes that are void at law are often sustained in chancery. 2 Story, Eq., § 1170. Where a literal execution of a charitable devise becomes inexpedient or impracticable, the court will execute it as nearly as it can according to the original purpose. Icl., § 1169. The court will supply all defects of conveyances where the donor has capacity to convey, unless the mode of donation contravenes some statutory provision. Id., % 1171.”
Another leading case where this court applied said doctrine to prevent the failure of a charitable trust is McCarroll v. Grand Lodge, etc., 154 Ark. 376, 234 S. W. 870. There, one Shirey attempted to create in his will a charitable trust for two purposes. He left a portion of his estate to the Grand Lodge I. O. O. F. to establish and maintain a sanitarium at Hot Springs, and another portion to establish and maintain an orphan’s home, both to be under the exclusive control of the Grand Lodge of which he was a member. Due to matters over which Shirey had no control, his estate was insufficient to carry out either purpose. The Grand Lodge owned and operated a sanitarium at Batesville and it determined to use the Shirey trust fund to operate its own hospital at Batesville. To this end it made a contract with McCarroll to sell him its remaining real estate assets and his attorney declined to approve the title and their right to devote the proceeds to the purpose stated. This court sustained the sale and ordered specific performance and held the proceeds could be used as stated under the cy pres rule. See, also, State, ex rel., v. Van Buren Special School Dist. No. 42, 191 Ark. 1096, 89 S. W. 2d 605.
We think such cases as Hicks Mem. Christian Assn. v. Locke, 178 Ark. 892, 12 S. W. 2d 866; Union Nat’l Bank v. Kirby, 189 Ark. 369, 72 S. W. 2d 229; and Atkinson v. Lyle, 191 Ark. 61, 85 S. W. 2d 715, are not in point.
Here, the appellees are confronted with a situation that the charitable trust of the testator will fail unless some such scheme is adopted as is here proposed. We cannot cause this trust to be executed in the precise manner contemplated by the testator, but we can apply the trust fund to another charity as nearly as possible like that mentioned in the will. The trustees are men of high standing and business ability. They say they cannot longer operate the present hospital with the fund in hand. Mr. Wilson, one of the trustees of the Memorial Hospital, said the “ offer of the Sisters of Charity was like manna from Heaven.” Appellees own no property except that here involved, the outmoded hospital, and about $1,500 cash in bank. They have no income except the $1,800 per year rent from appellant. It is not difficult to see the impracticability, if not impossibility, of continuing to operate a charity hospital.
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Geieein Smith, C. J.
January 7, 1927, H. K. Fuller and Ms wife mortgaged forty acres of land to secure two notes for $125 each, payable to George Hughes.. The notes were due December 1, 1927, and December 1, 1928. Neither was paid. Indorsements showed payments of interest May 5, 1931, amounting to $1 on each note.
Hughes died January 30, 1930, his wife having been named executrix of his estate.
The mortgaged land forfeited to the state in 1930 for nonpayment of 1929 taxes. February 4, 1933, Mrs. Hughes obtained a tax deed from the state land commissioner, and in 1936 she conveyed the property to John Saugey.
In a confirmation suit brought by the state the land was included. Fuller intervened. Mrs. Hughes and Saugey were made defendants. Fuller alleged irregularities in sale, and resisted confirmation. His prayer was that title be quieted in himself, and that he have $300 as damages.
Mrs. Hughes and .Saugey (hereafter referred to as appellees) pleaded limitation under act 142 of 1935, and other defenses. May 6, 1937, a decree was entered in the confirmation suit dismissing appellant’s intervention and complaint, and quieting title in Saugey.
In the meantime (May 4, 1936) Mrs. Hughes, as executrix, filed suit to foreclose the Fuller mortgage. Appellant and wife answered, pleading the five-year statute of limitation on written instruments. No further action was taken until August 3, 1939, when appellant filed an amended answer and cross-complaint, alleging that Mrs. Hughes’ purchase from the state amounted to a redemption; that because of her status as executrix of her husband’s estate she was incapable of acquiring the property in her own rights, and therefore could not convey to Saugey.
In their answer appellees pleaded res judicata, the two-year statute of limitations (Pope’s Digest, § 8925), and laches. Appellant demurred to the plea of res judicata. The demurrer was sustained. Appellees then moved to vacate the order sustaining the demurrer. This motion was sustained and a decree entered accordingly, from which is this appeal.
The decree quieting title in Saugey recites that the court’s findings were made after each side had adduced evidence. What this evidence was is not shown by the record. For aught we may know, George Hughes’ will may have bequeathed the notes and mortgage to his wife. No one interested in the estate is complaining of Mrs. Hughes’ action in personally purchasing and conveying to Saugey. The foreclosure suit of the executrix might well have been dismissed, but it was not. From June, 1937, (when eviction occurred) until August, 1939, appellant was not in possession.
Neither note has been paid; nor has there been a payment of interest in ten years; but appellant, hoping he may be able to disprove payment of $1 in interest on each note, seeks through limitation to defeat the obligation by attacking Mrs. Hughes’ purchase — -a purchase necessitated because appellant defaulted in his obligation to pay taxes. He asks the court to say, as a matter of public policy, that Mrs. Hughes, being executrix, could not purchase personally, but that in her representative capacity she might have acted, and in that event — maybe—he would have paid the debt and repossessed the property.
Our holding is that appellant is bound by the decree of 1937. He knew then, as he knows now, that the purchase was not intended as a redemption. Saugey’s rights were adjudicated in a proceeding instituted by appellant, from which there was no appeal.
Affirmed.
Prior interest payments aggregating $37.50 were indorsed on each note.
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Griffin 'Smith, C. J.
The issue is whether, within the period of limitation, an amended complaint when' considered with the original, stated a cause of action. The trial court held that, it did not.
The suit was brought by Jesse Tipler as administrator of the estate of Frank Tipler. It was alleged that a truck operated by a servant of James and Rupert Crafton was negligently parked on Highway No. 61 near Hayti, in the state of Missouri, in consequence of which an automobile driven by Walker Crawford struck the back end of the truck and fatally injured Frank Tipler, who was with Crawford.
It is conceded appellants’ rights are created by and subject to restrictions of Missouri laws. Revised Statutes of Missouri, 1939, §§ 3652, 3653, and 3654. The applicable statute in the instant case is § 3652.
The civil penalty or forfeiture for negligence resulting in death is fixed by § 3652 at not less than $2,000 nor more than $10,000, in the discretion of the jury.
Frank Tipler died October 17, 1938. Suit was filed by the administrator May 9, 1939 — twenty-two days after six months from the date of death. During the first six months the widow had the exclusive right of action. Thereafter, for six months, the right to sue was in the minor children. The complaint conforms to the 'Arkansas procedure in causes arising from wrongful death, one of the allegations being:
“At the time of [Tipler’s death] he was in good health, of sound body and mind, 52 years of age, and was earning $2,400' a year, all of which he contributed to the support of his wife and family.' By reason of the carelessness and negligence of the defendant’s . . . servants, . . . the plaintiff is entitled to recover for the benefit of the estate of the deceased and for the benefit of the widow and next of kin of the deceased the sum of $50,000.”
June 12, 1939, defendant’s motion to dismiss on the ground that the administrator had no cause of action was passed at the request of plaintiff’s counsel in order to allow them time to check authorities. A year later (June 13, 1940) the amended complaint was filed. " It alleged that the five plaintiffs were the minor children and the next of kin of Frank Tipler.
The trial court thought the amended complaint introduced new plaintiffs, and sustained a motion to dismiss.
Appellant insists that the amendment does not allege a different cause of action, or set out new facts; that it “simply made the complaint more definite and certain as to who the beneficiaries were,” and alleged in more explicit terms that Jessé Tipler, although administrator of the estate, was bringing the action “in the name of and for the^ benefit of the minor children.” Attention is directed to §§ 1305, 1317, and 1463 of Pope’s Digest, wherein it is required that actions must be prosecuted in the name of the real party in interest, except as provided in §§ 1307, 1309, and 1310; and that in furtherance of justice the trial court may permit amendments to pleadings, etc. We are also cited to Buckley v. Collins, 119 Ark. 231, 177 S. W. 920; Arkansas Land & Lumber Co. v. Davis, 155 Ark. 541, 244 S. W. 730; McGraw v. Miller, 184 Ark. 916, 44 S. W. 2d 366, and other cases shown in the. footnote.
The difficulty in applying to the case at bar the principles announced in the decisions to which attention is called by appellants is that at the time the administrator sued he had, prima facie, a cause of action under the fourth classification of § 3652, Revised Statutes of Missouri, 1939. That right is given when the wife fails to sue within six months, if there are no minor children; subject to other exceptions not applicable here.
Since the administrator may act only “if there be no husband, or wife, minor child or minor children, . . . or if the deceased be an unmarried minor and there be no father or mother,” a presumption arose when the administrator (after the wife’s cause became barred) sued “for the benefit of the next of kin” that he was acting’ for those interested, other than as minor children. After six months and within a year appellants were apprised of the status of the law and the pleadings, but they did not, within a year, amend the complaint by alleging the existence of minor children of the decedent, and therefore incapacity of the administrator to sne.
Baker v. The Hannibal & St. Joseph Ry. Co., 91 Mo. 86, 14 S. W. 280, is in point. While the statute considered in that case has been changed in some respects, the widow’s right to sue was restricted to six months, and the general limitation was one year.
After mentioning that damages for a tort to the person resulting in death were not recoverable at common law, nor could husband or wife, parent or child, recover any pecuniary .compensation from the wrongdoer, the statutory remedy was discussed. The court said:
“In the statute which creates the right of action, and in the same section in which the statutory right and remedy is thus conferred upon the husband or wife, it is further provided, by the second subdivision, . . . that if there be no husband or wife, or he or she fails to sue in six months after the death, the right of action thereafter shall 'be vested in the minor children of the deceased, if there be such. This provision is not, we think, merely a limitation or bar to the remedy of tlie wife, but is a bar to the right itself, if there are minor children, and the existence, or non-existence, of such minor children is to be .held, we think, as of the substance of the right of the wife to sue after the six months have expired. ’ ’
At page 93 of the opinion it is said: “ So in the case now before us, where the action is brought by the widow after the expiration of the six months, her right to maintain the same is conditional and depends on the nonexistence of the minor children, a. material and necessary fact, we think, and which was not alleged or proved. . . . As in our judgment the fact, if such it is, that there was no minor child, was one material and necessary to be shown, to entitle the plaintiff to recover in this action, which was bfegun after the six months had expired, and as there w;as no evidence offered in that behalf, the instruction in the nature of a demurrer to the evi dence, asked by the defendant at the close of tbe evidence, should have been given.”
In Goldschmidt et al. v. Pevely Dairy Co. et al., 341 Mo. 982, 111 S. W. 2d 1, there is this statement:
“The first and second amended petitions disclose that deceased left minor children, and, this being so, the widow was required to file suit within six months from the date of death of her husband, otherwise the cause of action passed from her and vested in the minor children. Section 3262, E. S. 1929, [and cases cited]. The widow did not sue within six months; therefore, when the first petition was filed 'by her alone, there was no cause of action in her to state. The first amended petition making the minor children parties plaintiff, along with their mother, the employer, and the insurer, was not filed until ... a year, two months and nine days after the death of the deceased. Section 3262 provides that, if the wife fails to sue within the six months, then the minor child or children may sue, and % 3266 E. S. 1929, Mo. St. Ann. § 3266, p. 3385, provides that ‘every action instituted by virtue of the preceding sections of this article shall be commenced within one year after the cause of action shall accrue’ . . . And notwithstanding that the cause of action was in the widow for the six-month period, the minors were required to file suit within one year from date of death of deceased. . . . They did not sue within the year, hence any cause of action in them was barred upon the.lapse of the one year.
“But it is contended that the filing of the first amended petition, two months and nine days after the lapse of the one year, relates back ‘to the time of the filing of the original petition, and the joining of additional parties plaintiff or the substitution of a new plaintiff is not barred even though they were at the time of the amendment barred by limitations from instituting a new action.’ As supporting these contentions plaintiffs call our attention to Drakopulos v. Biddle et al., 288 Mo. 424, 231 S. W. 924 [and other cases cited at page 3, S. W. Reporter, vol. 111 S. W. 2d]. There would be merit in the relating back contention if there had been a cause of action vested in the widow when she, as sole plaintiff, filed the original petition, but when the original petition was filed there was no cause of action in the widow, hence there was nothing to relate back to. There being no cause of action in the widow when the original petition was filed, such petition could not be amended by bringing in the minor children as parties plaintiff, who had no cause of action when the first amended petition was filed, and this because they did not sue within one year from the date of the death of their father. We do not mean to imply that if the first amended petition, in which the minor children were added as plaintiffs, had been filed within the one year that such would have been an amendment. to the original petition. Had that situation obtained, what is called the first amended petition could, we think, have been considered as a petition on behalf of the minor children, independent of the widow. To rule in accordance with the relating back theory, under the facts as appear here, would be to nullify § 3263 et seq. Mo. St. Ann. § 3362 et seq., p. 3353 et seq., as to what parties may sue under the wrongful death statute and when they must sue, if at all. We are constrained to rule that the second amended petition, under any theory, stated no cause of action in the widow and minor children. ’ ’
In Betz v. Kansas City Southern Ry. Co., 314 Mo. 390, 284 S. W. 455, at p. 457, the court quoted from Coover v. Moore, 31 Mo. 574, as follows:
“There being thus no general right of recovery open to all persons representing the estate of the deceased or interested in his life, only such persons can recover in such time and in such manner as is set forth in the statute, and from Barker v. Railroad Company, 91 Mo. 86, 14 S. W. 280: “In statutory actions of this sort, the party suing must bring himself strictly within the statutory requirements, necessary to confer the right, and this must appear in> his petition; otherwise it shows no cause of action.”
A headnote to Packard et al. v. Hannibal & St. J. Ry. Co., 181 Mo. 421, 80 S. W. 951, at p. 952, is: “Under Rev. St. 1899, § 2864, giving a right of action for wrongful death to the widow of the person killed, or, if she fails to sue within six months, to the children, the act of the widow in suing within six months constitutes an election to appropriate the cause of action, and cuts off the right of the children to sue after the expiration of six months, although the widow elects to sue the wrong defendant, and does not sue the one actually liable for the wrong. ’ ’
It will be seen from the quoted Missouri decisions that the right to amend a complaint in circumstances such as we are dealing with is substantive, and not procedural, and the right to recover, under the statute, depends upon allegations made by the complaining party, who must bring himself within the terms of the law, as construed by the courts of that state.
St. Louis & S. F. Rd. Co. v. Coy, 113 Ark. 265, 168 S. W. 1106 (not a death case) is authority for the proposition that where liability for personal injuries which occurred in another state are being determined by an Arkansas court, the laws of the foreign state govern as to liability, but the remedy must be pursued according to the laws of the forum. It was there said: “As the lex fori controls with respect to the pleadings and procedure, the complaint will be treated as amended to conform to the proof.” This was the court’s holding in spite of the fact that in Missouri (where the injury occurred) the petition might have been attacked at any time, though not demurred to.
If, as the Missouri Supreme Court said in the case of Baker v. Railway, the provision of the law permitting differently related parties to bring suit within stated periods is “not a mere.limitation or bar to the remedy, . . . but is a bar to the right itself,” substitution of parties is not procedural.
Nowhere in the record of the instant case is there an allegation, prior to expiration of a year following the death of Tipler, that there were minor children. If there were no such minors, and other conditions concurred, it was the duty'of the administrator to sue for the benefit of the next of kin. That the original complaint sought recovery for the benefit of the widow is unimportant because, at the time suit was filed, the widow had no cause of action. The complaint, then, stands as though the administrator, who might have had a cause of action, was proceeding regularly under the laws of Missouri to recover for those to whom his obligation extended. . If, when the motion was made to dismiss the administrator’s suit, the pleadings had been amended to show that there were minor children, -and that they desired to be made parties, there would have been no question as to the right to do so, for at that time the statute of limitation had not run.
Affirmed.
The Craftons, as partners, were engaged in the wholesale grocery business in Mississippi county, Arkansas.
These sections are referred to in appellees’ brief as 3262, 3263, and 3264, Revised Statutes of Missouri, 1929. [The 1939 Revision was not available at the time the brief was written.]
The right to sue is: First, by the husband or wife of the deceased; or, second, if there be no wife or husband, or he or she fails to sue within six months after such death, then by the minor child or children of the deceased, whether such minor child or children of the deceased be the natural born or adopted child of the deceased; . . . or, third, if such deceased be a minor and unmarried, . . . then by the father and mother, who may join in the suit; . . . or, if either of them be dead, then by the survivor; or, fourth, if there be no husband, wife, minor child or minor children, ... or if the deceased be an unmarried minor and there be no father or mother, then in such case suit may be instituted and recovery had by the administrator or executor of the deceased and the amount recovered shall be distributed according to the laws of descent.
The collision occurred October 7, 1938.
Separate suit, filed in the Chickasawba district of Mississippi county against the Craftons by Walker Crawford resulted in a verdict for the defendants.
Caption of the amended complaint was: “Paralee Tipler, Raymond Tipler, Gladys Tipler, Marsh Tipler, and Dean Tipler, by Jesse Tipler, administrator of the estate of Frank Tipler, deceased, as their next friend.”
The amended complaint further alleged: “The cause of action herein was brought for’ and on behalf of these plaintiffs, but they were inadvertently referred to in the body of the complaint as ‘next of kin’ instead of setting forth the names and ages of the respective parties; that no other cause of action has been brought by anyone for the death of Frank Tipler. Said cause of action set forth in said complaint is and was at all times herein mentioned for their exclusive benefit, and said action was originally brought for and on their behalf, and their names should, therefore, be set forth in the caption of the complaint and in the body thereof.”
Missouri-Kansas & Texas Railway Co. v. Salley C. Wulf, 226 U. S. 570, 33 S. Ct. 135, 57 L. ed. 355, Ann. Cas. 1914B, 134; Lopez v. United States, 82 Fed. 2d 982; Quaker City Cab Company v. Fixter, 4 Fed. 2d 327; Michael Uorko v. Benjamin W. Rau, 107 N. J. L. 479, 154 Atl. 766; Pyle v. University City, (Mo. App., 1926), 279 S. W. 217; Neubeck v. Lynch, (1911), 37 App. D. C. 576, 37 L. R. A., N. S., 813; Atlanta, K. & N. R. Co. v. Smith, (1907), 1 Ga. App. 162, 58 S. E. 106; Cox v. San Joaquin Light & P. Co., (1917), 33 Cal. App. 522, 166 Pac. 578; Davis v. Preston, (1924), Tex. Civ. App., 264 S. W. 331 (affirmed in 1929), 118 Tex. 303, 16 S. W. 2d 117, which has certiorari denied in 1930, 280 U. S. 406, 74 L. ed. 514, 50 S. Ct. 171; Reardon v. Balaklala Consol. Copper Co., (1912), (C. C.), 193 Fed. 189 (affirmed in 1915); 136 C. C. A. 186, 220 Fed. 584.
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