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Battle, J.
The grand jury of White County indicted Will Bryant for murder in the first degree. He was convicted of murder in' the second degree, and his punishment was assessed at seven years in the penitentiary; and he appealed.
He moved for a change of venue on the ground that the minds of the inhabitants of White County were so prejudiced against him that he could not get a fair and impartial trial in that county. His motion was corroborated by the affidavits of four witnesses. To test their credibility they were examined under oat'h. The testimony of three of them showed that their information as to the minds of the inhabitants was too limited to enable them to form an opinion, and that they swore recklessly, and in this case was not credible. The other was not a qualified elector of the county, as required by the statute. The court committed no error in overruling t'he motion. Kinslow v. State, 85 Ark. 518; White v. State, 83 Ark. 36; Duckworth v. State, 80 Ark. 360; Maxey v. State, 76 Ark. 276; Price v. State, 71 Ark. 180; Jackson v. State, 54 Ark. 243.
On cross examination of Mrs. Minta Potter, the widow of the man killed, the witness testified that the deceased “was quick to get mad and fight, and he was a brave man, and would fight at the drop of a hat.” The State by many witnesses proved in rebuttal that the general reputation of the deceased for being a quiet, peaceable citizen was good. The appellant contends that the court erred in admitting it. It was only admissible for the purpose of sustaining the reputation of the deceased after it had been attacked. In this case the evidence adduced by the defendant on cross examination tended to prove that the deceased was aggressive, quick to take offense, and resent it with force unnecessarily. The evidence adduced by the State was admissible to remove such impression. Wharton on Homicide (3 ed.), § 269, and cases cited.
The court refused to allow the defendant to read as evidence certain notices. The contents of the notices were .not shown, and we are unable to determine whether the court committed a reversible error in excluding them.
The evidence was sufficient- to sustain the verdict in this court.
Judgment affirmed. | [
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Battle, J.
Henry Majors brought this action against the St. Louis, Iron Mountain & Southern Railway 'Company to recover damages caused by a collision of defendant’s engine with a wagon in which he was driving at the time. Plaintiff alleged that such- collision was the result of negligence committed by the defendant as follows:
“First. A failure to either ring a bell or sound a whistle for the public crossing where he was injured.
“Second. • In a failure to keep a lookout as the law requires.
“Third. In a wanton failure to ring a bell or sound a whistle or in any other manner warn the plaintiff after his perilous situation was by them discovered.”
The defendant answered and denied the material allegations of the complaint, and pleaded that the plaintiff’s injuries were caused by his contributory negligence. '
A jury tried the issues made by the pleadings in the case. After they heard the evidence adduced by both parties, the court peremptorily instructed them to return a verdict for the defendant, which they did, and plaintiff appealed.
Was the evidence adduced in the trial legally sufficient to support a verdict in favor of the plaintiff? That is the only question for us to decide. In deciding it we should give the evidence- in his favor its strongest probative force. Crawford v. Sawyer & Austin Lumber Co., 91 Ark. 337.
Henry Majors, the plaintiff, testified that on the 9th day of October, 1908, he was traveling in a wagon on a public road approaching the Polk crossing on the defendant’s railway from the south; that he had stopped at the Oil Mill crossing, about a half mile south of the Polk crossing, and looked for a train; that about one hundred yards before he reached the Polk crossing he looked south for a train and could see none approaching from that direction; that he drove on to the Polk crossing, not expecting a train from the south, but was looking north; that when upon the Polk crossing an engine of the defendant from the south struck his wagon, completely wrecking it, and threw him to the ground and injured him ■seriously; that there was no bell rung or whistle sounded until the engine was upon the- crossing; that the whistle and shock came at the same time; that the engineer came back to where he was, and asked, “Didn’t you hear the whistle ?” and witness replied: “No, you never whistled;” and the engineer said: “I did, and thought you were going to stop;” he didn’t whistle until he struck the wagon.
There was evidence legally sufficient to prove that no bell was rung or whistle sounded until the engine struck the wagon. Montgomery, the engineer in charge of the engine, testified that he was running the engine at a speed of about twenty-five miles an hour; that when he first saw Majors his engine was about one hundred and fifty or two hundred feet south of the crossing, and that Majors was sitting in his wagon with his head “hanging down like,” and the heads of his mules were five or six feet from the track. That “when he saw Majors he shut off steam and applied the lever and threw it on back motion and applied the air, and that is all an engineer can do to stop a train.” The mules and one-half the wagon escaped injury. Had the engineer sounded the whistle when he first saw the heads of the mules within five or six feet from the track, and the engine was one hundred and fifty or two hundred feet from the crossing, Majors might have escaped injury. He came near doing so as it was. What might have been had the whistle been promptly sounded is a matter of conjecture. That was a question for the consideration of the jury.
Garrison v. St. Louis, I. M. & S. Ry. Co., 92 Ark. 437, was similar to this case. The court -in that case -said: “In the case at bar the testimony tended to prove that, when the plaintiff drove upon the track, and his perilous - situation was discovered by the fireman, the train was one hundred feet distant from him. The fireman saw that the plaintiff’s back was towards the train, and that he was looking and had been looking away from the train, and had not seen the train, and the plaintiff’s conduct and appearance gave evidence that he was wholly unaware of the train’s approach. The train was then at such a distance that the plaintiff might have quit the track in safety if he had been warned of the approach of the train. It then became a question for the jury to determine as to whether or not the defendant’s servants were guilty of negligence in failing to give the warning signals.”
The court erred in instructing the jury to return a verdict for the defendant.
Reversed and remanded for a new trial. | [
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Wood, J.,
(after stating the facts), x. The decree was final. It perpetually enjoined appellant from erecting the “building according to the plans shown by the defendant and the testimony.” That was the very building the erection of which appellees sought to enjoin. They were not seeking to enjoin the erection of any other kind of a structure than that specifically described in the complaint and shown by the testimony. They did describe the kind of structure that appellant was erecting and proposing to erect, and asked that he be enjoined from erecting same and from maintaining a nuisance therein such as was described in their complaint. Appellant was not proposing or proceeding to erect any other kind of a structure, or to maintain a nuisance in any other than that set forth in the pleadings and shown by the evidence, and it was the erection of this building that was enjoined. The building and inclosure in process of erection was to be used only for the purposes of a wagon yard, and the injunction necessarily prevented the maintenance of a wagon yard in that particular structure. The appellees obtained the relief they sought by the decree, and it was a final judgment on the issues presented, and therefore one from which an appeal could be prosecuted.
2. “A nuisance per se is a nuisance in itself, and which therefore can not be so conducted or maintained as to be lawfully carried on or permitted to exist.” Joyce on Nuisances, § 12.
The structure for a wagon yard business is not any more a nuisance per se than is a building for a livery stable, a steam gin, a planing mill, a railway depot and the tracks connected therewith. See Durfey v. Thalheimer, 85 Ark. 544; Terrell v. Wright, 87 Ark. 213; Swaim v. Morris, 93 Ark. 362; Lonoke v. Chicago, R. I. & P. Ry. Co., 92 Ark. 546.
This court has recently held that it will not enjoin the erection of a structure that is not a nuisance per se. Swaim v. Morris, 93 Ark. 362. It has also1 held that it will not demolish a structure by mandatory injunction, nor prevent the prosecution of a business that is not per se or necessarily a nuisance. Durfey v. Thalheimer, 85 Ark. 544.
In the former case the facts stated in the complaint and admitted by the demurrer at least tended as strongly to show that the erection of the gin and the maintenance of the ginning business connected therewith would be a nuisance to the residents adjacent as does the evidence here, on behalf of appellees, tend to show that a structure for a wagon yard would be a nuisance to them. In that case we held that the erection of a' gin would not be a nuisance per se, and quoted from note to West v. Ponca City Milling Co., 14 Okla. 646; 79 Pac. 100; 2 Am. & Eng. Ann. Cas. 249, 254, as follows: “Where an injunction. is sought merely on the ground that a lawful erection will be put to a use that will constitute a nuisance, the court will ordinarily refuse to restrain the construction or completion of the erection, leaving the complainant free, however, to assert his rights thereafter in an appropriate manner if the contemplated use results in a nuisance.”
This court is in line with those cases, and they are numerous, which hold that ordinarily an injunction will not be granted unless the act or thing threatened is a nuisance per se. “When it may or may not become a nuisance according to circumstances, dr when the injury apprehended is doubtful or contingent,” equity will not interpose in advance to prevent by injunction. St. James’s Church v. Arrington, 76 Am. Dec. 332, and other cases cited in appellant’s brief.
“It must be a strong and mischievous case of pressing necessity, or the right must have been previously established at law.” 14 Enc. PI. & Pr. 1120; 29 Cyc. 1221. We see nothing in the record to make this case an exception to the rule announced in Swaim v. Morris, supra. The judgment is reversed, and the complaint is dismissed for want of equity. | [
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McCulloch, C. J.
Appellants, Jantes ¡Bundy arid C. S.Bell, who were school directors in a certain common school district in Prairie County, were tried and convicted under an indictment charging them with unlawfully conspiring together to cheat and defraud one Geneva Lucas out of the sum of $20 by exacting and. demanding of her said sum of money as a corrupt consideration to be paid to them for her employment as a teacher in the public school • of said district. Bundy and Bell and one Brown had been directors of the district, but Brown died about the time or shortly before the time a contract was entered into with Geneva Lucas to teach the school, but after negotiations had been entered into for her employment. The evidence adduced establishes beyond dispute the fact that Bell and Brown had been for several years prior to this time exacting pay from the teachers they employed. They had demanded and received from Geneva Lucas the payment of a portion of her monthly salary the year prior to this time for employing her as teacher, and before Brown died he and Bell promised to again employ her, doubtless with the hope, or upon the understanding, that she was to pay them a part of her salary. There is no proof, however, that Bundy ever participated in any of those unscrupulous and unlawful practices. On the contrary, it affirmatively appears from the State’s evidence that Bundy had nothing to do with those transactions.
Geneva Lucas testified that she applied to' Bell for the principalship of the school, and that the latter told her she could have the place if she would give him $20, and that he had been offered that by another person. She said she refused to give him $20, and that he then offered to give her a position as assistant teacher, and demanded $10 for that position. They gave her the position, and she taught one week, but was ordered by Bell to stop when she declined to pay the amount which he demanded. The only way in which she connects Bundy with the transaction is that Bell gave her a note to Bundy, saying that he would find her all right, because she had taught there before, and that Bundy agreed to employ her. Speaking of the interview with Bundy, she made this statement: “He told me that he had heard that Bell and Brown had been charging $5 for the school, and asked me if I had paid it, and I told him that I did, and that I would quit the school before I would pay it any more, and lie told me to go ahead and teach.” Other witnesses testified about paying Bell and Brown for employment as teachers.
The only evidence which tends to show a knowledge on the part of Bundy as to the unlawful practices of Bell and Brown was the above statement of Geneva Lucas and the testimony of her husband to the effect that Bundy said this to him: “We (meaning himself and Bell) met the other night, and he talked like she (meaning Geneva Lucas) wilted on her obligation, and I don’t know anything about it;” also the statement of another witness, who had paid money to Bell and Brown for employment, that some time afterwards Bundy told him that Bell and Brown had made a contract with Geneva Lucas for $15 a month. Now, the most that this testimony established is that at some time Bundy acquired the knowledge that his co-directors, Bell and Brown, were selling positions as teachers and exacting a part of the teachers’ salaries. It does not show that he knew these things at the time they were practiced, or that he ever received this information at or before the time of this transaction with Geneva Lucas. When he made these statements to witnesses, it seems to have become common knowledge that Bell and Brown were doing these things, and it was only a short time afterwards that the matter was taken up by the proscuting attornéy and referred to the grand jury.
We said in the case of Chapline v. State, 77 Ark. 444, that, “to establish a conspiracy, it is not necessary to prove an unlawful agreement by direct and positive evidence; if it be proved that two or more persons pursued by their acts the same unlawful object, each doing a part, so that their acts, though apparently independent, were in fact connected, a conspiracy may be inferred, though no actual meeting among them to concert means is proved.”
The weakness, however, of the State’s case here is that there is no evidence whatever that Bundy ever participated in the plan to exact money from the teachers, or that he had ever done so or sought to do so. All of the State’s' evidence tends to the contrary. Proof is abundant that Bell and Brown both indulged in these practices; but the existence of the alleged conspiracy between Bundy and Bell can not be established solely by evidence of the acts or declarations of the latter in the ab sence of the former. Cumnock v. State, 87 Ark. 34. The evidence being insufficient to establish a conspiracy, neither Bell nor Bundy can be convicted of that offense, even though there is evidence sufficient to establish those unlawful practices on the part of Bell alone, or Bell and Brown. The indictment charges a conspiracy between Bundy and Bell, and in order to convict it devolved upon the State to prove that particular offense. It was, of course, not sufficient under that indictment to show a conspiracy between Bell and Brown.
The sufficiency of the indictment was questioned on demurrer, but we are of the opinion that the indictment charged a public offense with sufficient certainty to put the defendants on their defense; but, the evidence being insufficient to support the verdict, the judgment is reversed, and the cause is remanded for new trial. | [
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Battle, J.
J. A. Anderson brought an action against A. W. S'hirey, in his lifetime, to recover the difference in the value -of two mules and the amount of an account that plaintiff owed the defendant.
On the 15th day of March, 1906, Sam Golden and plaintiff •executed to the defendant a mortgage on two mules and two horses and certain crops of corn and cotton to secure the payment of a promissory note executed by Sam Golden and plaintiff to the defendant for $250, due October 15, 1906, and all other indebtedness they should contract with the defendant on or before the 15th day of October, 1906. In case of default in the payment of the note and other indebtedness, the mortgagors by the mortgage authorized the mortgagee to take possession of the property mortgaged, and sell and dispose of the same at public sale of Minturn, in Lawrence County, Arkansas, for cash in hand, after giving certain notice of the sale, and out -of the proceeds of the sale retain sufficient to pay mortgagor’s indebtedness to him. The two mules were the property of plaintiff,, and .the horses were the property of Golden.
Anderson, the plaintiff, having been convicted of a felony, was imprisoned in the State penitentiary. While in this condition, his mules were delivered to the defendant. The defendant, Shirey, alleges that the mules and horses were delivered to him in payment of the indebtedness of Anderson and Golden to him. He sold the -mules at private sale as his own property for $200. The evidence is conflicting as to their delivery. Plaintiff adduced evidence to prove that they were not delivered in payment of any debt; that they were worth about $250; and that he was indebted to the defendant only in the sum of $81.11. This action was brought to recover $168.89, the difference between these two amounts.
The court after saying: “This ought to have been an action for an accounting, and not one in trover for conversion of the property,” instructed the jury as follows: “Gentlemen of the jury, the evidence in this case shows that these mules were turned over to Mr. Shirey under the mortgage lien, and he would have a legal right to the possession of the mules under that condition. By this form of action that they have brought here the lien would lie. You will find a verdict for the defendant, and one of you sign it as foreman.” Which they did, and the court rendered judgment accordingly; and the plaintiff appealed.
The manner in which Shirey could dispose of the property was prescribed by the mortgage, and he was confined to its provisions. In selling the property at a private sale he asserted a power which was not given by the mortgage, to the exclusion of appellant’s right to redeem -and to a public sale. Shirey had the legal title and the right to the possession of the property, but was not the absolute owner. Notwithstanding default, the plaintiff might have redeemed. By selling the mules as his •own property and converting the proceeds to his own use, he appropriated more than he was entitled to, and was guilty of conversion. Howery v. Hoover, 97 Iowa 581; Colby v. Kimball Co., 99 Iowa 321, 324; Jones v. Horn, 51 Ark. 19, 25; 2 Cooley on Torts (3 ed.), 866.
In Jones v. Horn, 51 Ark. 19, 25, it is said: “Where the defendant is a mortgagee, who was entitled to the possession, with power to sell at the time of the seizure or conversion, and who has become a wrongdoer by reason of the manner of acquiring possession, or in the irregularity of the sale, he is liable to the mortgagor (in the absence of proof of special damages) only for the value of the property at the time of the conversion, less the amount of mortgage debt. McClure v. Hill, 36 Ark. 268.”
Reverse and remand for a new trial.
Upon Shirey’s death the cause was revived in the name of Joseph, his executor. (Rep.) | [
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Frauenthal, J.
This was an action instituted by M. JV Harrison, the plaintiff below, to recover damages for a personal injury which he sustained while in the 'defendant’s employment. The defendant is a foreign corporation, organized under the laws of the State of Missouri, and for some time prior to the time of the alleged injury it was engaged in business in the State of Arkansas of building and constructing depots at the stations along the line of railroad of the Missouri & North Arkansas Railroad Company. It had appointed a superintendent, who managed and conducted its work in this State. The plaintiff was employed by the defendant as a carpenter in erecting a depot at Searcy, Arkansas. He was working upon a scaffold which broke on account of a defective plank, and plaintiff was thrown to- the ground from a considerable height, and was severely injured. He instituted this suit in the White Circuit Court, and service of process of summons against the defendant was made upon its superintendent, who was in control of its business and work at Searcy, Arkansas, and also upon the Auditor of the State.
At the January term, 1909, of the circuit court, the defendant appeared specially, and filed a motion to quash the service of summons upon the ground that it was a foreign corporation, and that service of process had not been made upon any agent of defendant authorized by law as the person upon whom service may be had for it. The motion was heard by the court at the same term upon the testimony of witnesses and the affidavit of defendant’s superintendent, and was overruled. Neither the testimony nor the affidavit introduced upon that hearing has been preserved in the bill of exceptions. At the following term of the circuit court the defendant filed an answer in which it set forth its plea in bar to the action; but in this answer it did not plead by way of abatement' any objection to the service of the summons.
1 ‘l1, Upon the trial of the case a verdict was returned in favor o'f file plaintiff for $500, and from the judgment entered thereon the defendant has prosecuted this appeal.
’ '"It is ufged by counsel for defendant that the court erred in' oveifuling the motion to quash the service of the summons. This motion was heard by the court upon testimony that has not been preserved in the record, and we must therefore indulge the presumption that there was sufficient evidence to sustain the finding of the court if it is not contrary to law.
The defendant was a foreign corporation created by the laws of the State of Missouri, but it sent its officials and agents to the State of Arkansas, and in this State carried on its business. By section 825 of Kirby’s Digest it was required to designate an agent upon whom service of summons might be made before it would be authorized to transact business in this State. It failed to comply with the provisions of said statute, and still it availed itself of the privilege to do business in this State. It brought its property into this State, and was protected by its law while it transacted its business. By this act it must be held to have assented and submitted itself to the laws of the State whose protection it had. In the case of Merchants’ Mfg. Co. v. Grand Trunk Ry. Co., 13 Fed. 358, it is said; “Accordingly, it has been held that a foreign corporation consents to be amenable to suit by such mode of service as the laws of the State provide when it invokes the comity of the State for the transaction of its affairs. It waives the right to object to the mode .of service of process which the State laws authorize.” St. Clair v. Cox, 106 U. S. 350; Lafayette Ins. Co. v. French, 18 How. 404; Libbey v. Hodgdon, 9 N. H. 394; 13 Am. & Eng. Ency. Law, 895.
By section 835 of Kirby’s Digest it is provided that, “where any liability on the part of a foreign corporation shall accrue in favor of any citizen or resident of this State, whether in tort or otherwise, and such foreign corporation has not designated an agent in this State upon whom process may be served, * * * service of process of summons and other process may be had upon the Auditor of State, and such service shall be sufficient to give jurisdiction of the person” of such foreign corporation. Where a foreign corporation sends its agents and officials and its property into this State, and carries on a business in this State, service of process for it may be made upon the Auditor of State, if it fails to designate an agent upon whom such service may be had.
As none of the evidence adduced upon the hearing of the motion was properly preserved, we indulge the presumption that it was sufficient to warrant the lower court in finding .that the service of the summons upon, the Auditor was in full compliance with the provisions of the statutes of this State. We also indulge the presumption that the evidence warranted the court in finding.that the defendant’s superintendent in the county of the venue in this case had such management and control of its business in the State as to be authorized to receive service of summons upon behalf of the defendant. Lesser Cotton Co. v. Yates, 69 Ark. 396.
In addition to this, the defendant at the following term of the court filed its answer in which it only set up a plea in bar to the action. It did not in said answer preserve its plea in abatement for the want of sufficient service of summons. It thereby waived any objection to the mode of the service of the summons, and duly entered its appearance in the case. Boyer v. Robinson, 6 Ark. 552; Hibbard v. Kirby, 38 Ark. 102; Erb v. Perkins, 32 Ark. 432; Trigg v. Ray, 64 Ark. 150.
It is urged by the defendant that the court erred in failing to instruct the jury that it was the duty of the plaintiff .to inspect the material of which the scaffold was- made, and by reason of such failure he was guilty -of negligence or assumed the risk of the danger arising therefrom'. In support of this contention the case of Murch Bros. Const. Co. v. Hays, 88 Ark. 292, is cited. But we do not think that the facts in that case and in the case at bar are similar. In the one case the injured employee-constructed .the scaffold himself; and had the exclusive supervision of the platform in which was the defective plank ¡that caused the injury. In the case at bar the undisputed ¡evidence proved that defendant’s superintendent or foreman built the scaffold with the aid of other workmen, -and that it was not ©né of the. ¡plaintiff’s duties to construct it. The plaintiff was not' ¡present when it was built, and did not know the character of--the-.material -of which it was constructed. The testimony tended to-prove also that, during the progress of the building of ¡¡the scaffold, the ■ attention of the defendant’s foreman was called-'to-the defective plank and to the danger of using it in the"scaffold,-but-that, he insisted on putting it therein. The evidence tended further to prove that this defective plank was covered,, and the- defect-and danger were not obvious. Without any knowledge of the defect, the plaintiff went on this scaffold, which -was furnished by the defendant as the place upon which he -was to work. -.
■ It - is the: duty' of the master to exercise ordinary care to provide 'his servant with a reasonably safe place in which to Wbrlc/an'd it is his duty, in the exercise of that care, to make feüísoh'able -inspection to-see that the place is safe. In the absence1 of knowledge -on his part, the servant has a right to -presrnhe' that the master has performed the duty which he has assumed. It is not ordinarily the duty of the servant to make inspection to discover- latent defects or dangers; that is ordinarily the obligation -of- the master, and, in the absence- of knowledge to the -contrary, the servant has a right to presume that the master has exercised ordinary care to fulfill that obligation. 1 Ijabatt on- Master & Servant, § § 7-14; 26 Cyc. 1204; St. Louis, I. M. & S. Ry. Co. v. Holmes, 88 Ark. 181; Ozan Lumber Co. v. Bryan, 90 Ark. 233; St. Louis S. W. Ry. Co. v. Lewis, 91 Ark. 343; Woodson v. Prescott & N. W. Ry. Co., 91 Ark. 389; Little Rock, M. R. & T. Ry. Co. v. Leverett, 48 Ark. 334.
Under the testimony adduced in this case, it was not a part of the duties of the plaintiff to build or supervise in any vVay the construction of the scaffold;'it was not a part of his duties to discover or remedy defects in' the scaffold; it was only his duty to exercise ordinary'-care to discover patent or obvious defects in'the place where he "worked......
The court did not err, therefore, -in failing to instruct the jury that it was the duty of the plaintiff as a matter of law to inspect the material of which the scaffold was built to discover latent defects therein.
We have examined the testimony relating to the extent and character of the injury sustained by the plaintiff, and we can not say therefrom that the amount of the verdict is excessive.
The judgment is affirmed. | [
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JOHN B. ROBBINS, Judge.
|,Appellant James Edward Williams was convicted by a jury of two counts of aggravated robbery, two counts of first-degree terroristic threatening, theft of property, and third-degree battery. Mr. Williams was sentenced to a total of thirty years in prison. In this appeal, Mr. Williams’ sole argument is that the trial court erred in permitting him to represent himself at trial because his waiver of his constitutional right to counsel was not a knowing and intelligent waiver. We affirm.
At the jury trial the two victims in this case, Louis Dudderar and Grace Dudde-rar, testified about the crimes carried out by Mr. Williams while they were working at their Coin and Stamp Shop on the afternoon of July 10, 2007. On that day, Mr. Williams entered the store armed with a pistol and demanded money. It was a toy pistol, but the victims believed pit to be real and during the episode Mr. Williams threatened to kill both of them. At some point a struggle ensued between Mr. Williams and Mr. Dudderar, and during the altercation Mr. Dudderar suffered injuries. Mr. Williams fled the store with a large sum of cash, but was soon apprehended by the police and arrested. Mr. Williams elected to testify in his defense, and he admitted his involvement but stated that the robbery was staged pursuant to a conspiracy among the victims and himself.
Mr. Williams made his initial request to represent himself at a pretrial hearing held on February 14, 2008. A public defender had been appointed to represent him, but Mr. Williams advised the trial court that he wished to proceed as his own counsel with the public defender as standby counsel. Upon hearing appellant’s request, the trial court stated:
Well, let me just say this. I’ve been in this system for a long time. You’re charged with two counts of aggravated robbery, which carry up to life imprisonment, and those are too serious of charges for you to represent yourself. If you did that, you’d put yourself in jeopardy in front of a jury, and it’s kind [of] my job to be the gatekeeper in here, and if I see someone who’s going to put themselves in that position, I ought to stop it. So I’m going to let [defense counsel] make the calls, okay?
Mr. Williams continued to urge the trial court to let him represent himself, and the trial court indicated that it would not grant the request at that time but would take it up at the next scheduled pretrial hearing. The trial court strongly cautioned against self-representation, stating, “The only two times I’ve seen that happen, a fellow got life for rape, and the other time it was on an aggravated robbery, and I was the prosecutor, and he talked to the jury, |sand they gave him three life sentences.... But I don’t want to let you do this on your own because it’s just inviting disaster.”
The next pretrial hearing was held on April 10, 2008. At the outset of the hearing, appellant’s counsel announced that he had spoken at length with Mr. Williams and went over the dangers of what he was facing given his long criminal history and status as a habitual offender, and that Mr. Williams still wanted to represent himself. Defense counsel indicated that Mr. Williams had attended one or two years of college in the 1970s, and had been involved with the criminal justice system for forty years. Appellant’s counsel gave the opinion that Mr. Williams’ waiver of counsel was being made intelligently.
During the April 10, 2008, hearing, there was a lengthy colloquy between Mr. Williams and the trial court. Mr. Williams indicated that he had been the defendant in one jury trial in 1975, and the trial court asked whether he understood that there is a big difference between watching a trial and trying it yourself. Mr. Williams acknowledged that he did. The discussion continued as follows:
TRIAL Court: You understand that if you represent yourself, that you’re going to be under the same restrictions and obligations as a lawyer would be.
MR. Williams: Yes sir.
Trial Court: You understand that?
Mr. Williams: Yes, sir, Your Honor, I respect my brother defendant, but, see, I’ve been in a commode just about all my life, and I don’t think he understand what goes on down there. I would not embarrass the court, nor will I embarrass myself. But there’s some things that needs to be said as far as my perspective is concerned, and I don’t think the public defender understands at this particular point. And I will not abuse this court if you will allow me to do that.
Trial Court: Well, I’m not worried about you abusing the court because I’m not going to let you because I’ll treat you with the same standard that I would a lawyer. |4So if you ask a question that’s out of line or say something that’s out of line, I’ll stop it.
Mr. Williams: Yes, sir.
Trial Court: But that’s not the problem. The problem is is that you have a right to counsel and a right to representation in front of a jury. And by you taking on that yourself, you’re going to put yourself at a very severe disadvantage.
Mr. Williams: Yes, sir.
Trial Court: In fact, I’ve seen this happen before, and I’ve never seen it work out right. It usually ends up in a disaster, and then the supreme court is going to turn around and tell me that I did wrong in letting you do this if I let you do it. And they’re going to say that you didn’t know what you were doing, that I didn’t explain this process to you; they’re going to say that I didn’t explain that you have a right to cross-examine witnesses. And without the skill to cross-examine witnesses, that you may not necessarily do it in the correct way. They’re going to say that you don’t understand the nuances of the charges, of the jury instructions, of how to structure a defense to the jury, of how to argue that defense to the jury. And, they’re going to say that that’s my fault if I let you do this. But you’re telling me that you want to do it in spite of that.
Mr. Williams: That’s right.
Trial Court: In spite of it being a disaster, a possible disaster.
Mr. Williams: Yes, sir, I do.
Trial Court: So what are you going to tell the supreme court if you get a life sentence and you’re going to come back and say, “Well, that judge was pretty stupid in letting me try this case myself?”
Mr. Williams: No, sir. What I would like to do, if it’s okay with the court, I would like to waive all rights to anything that happened at trial because anything I get is going to be a life sentence for me. I’m fifty-eight years old. I’ve got diabetes; I’ve got high blood pressure. So whatever it is that I get [would] be a life sentence for me. I believe I can win this case. All I need to do is just get up and tell the truth. There’s some things here in this particular case—
Trial Court: Well, you know, by telling the truth that means you’d testify.
Mr. Williams: Yes, sir. I have no problem with that.
Trial Court: And that will open up your criminal record.
Mr. Williams: Yes, sir. That was my plan in the first place.
Trial Court: And by counsel representing you that he may not necessarily agree that that’s the smartest thing to do.
Mr. Williams: I’ve already been told that, your honor. I accept that responsibility.
Trial Court: So, you understand that if you testify that you’re subject to cross-examination about your prior felony convictions.
|bMr. Williams: Your honor, I cannot put on my defense without taking the stand myself. I understand that, believe me. And I also understand that just the fairness of it yourself could influence anybody. Well, see, that’s just the surface. If you look at the surface, then I’m already convicted. But it’s my understanding that I have an opportunity to explain what this loaf of bread is made out of as opposed to us going in the store and buying it. And that’s what I want to do.
DEFENSE COUNSEL: That’s an analogy he draws, your honor. Getting down to the basics, just one other matter that needs to be addressed for sure under the supreme court decision. They do make it plain that a defendant who elects to represent himself cannot thereafter complain about the quality of his own defense amounting to denial [of effective] assistance of counsel. That has to be made plain that that claim is gone once you’ve chosen this route.
Mr. Williams: Yes, sir.
Trial Court: You understand that?
Mr. Williams: Yes, sir, I read it in the book. I accept that.
Trial Court: You’re charged with aggravated robbery. Is he also charged as a habitual?
DEFENSE COUNSEL: Large habitual, your honor.
Trial Court: So, what’s the range if he’s convicted?
DEFENSE COUNSEL: Ten to life per count.
Trial Court: How many counts do we have?
DEFENSE COUNSEL: Two.
DEPUTY PROSECUTING ATTORNEY: There’s one incident, two different victims.
Trial Court: So you understand that except for murdering somebody, that’s about as severe [a] penalty as you can get out of a jury.
Mr. Williams: Like I said, your honor, anything I get is severe because of my record. And I’m willing to put that on the line in order to get my defense in front to a jury. I think I can do it a little better under the circumstances than a lawyer. That’s not to take anything from [defense counsel]. But my lawyer hadn’t been in the streets like I’ve been in the streets. And, believe me, I am not going to get up here and act no fool and go through any changes. It’s just some simple things I’d like to present [what] I believe will make me successful under the circumstances. Trial Court: I’m not worried about you acting like a fool because I’m going to stop that.
Mr. Williams: Oh, I understand that. Trial Court: But what I’m worried about is you presenting a case to the jury and taking the stand when you’re subject to cross-examination about your prior record.
Mr. Williams: Yes, sir.
IbTrial Court: Your credibility would be severely impaired by that act, and your lawyer can take that into consideration in making a recommendation on how to proceed with this trial.
Mr. Williams: Yes, sir. I intend to listen to everything he has to say. But, I still would love to do it myself.
The public defender indicated that Mr. Williams wanted him to act as standby counsel for technical assistance, and Mr. Williams agreed with that. Then the deputy prosecutor expressed concern that Mr. Williams might want to put information before the jury that was not relevant, and wanted to make sure that Mr. Williams understood that he was to abide by the same rules of evidence that counsel would. Upon inquiry by the trial court, Mr. Williams said that he understood. Then there was the following exchange:
TRIAL COURT: Okay. Well, I’m going to let you do that. I think it’s a mistake, and I would advise you against doing that. And, if I were in your shoes, I wouldn’t do that because I’ve seen it happen in this courthouse for the last thirty years, and it never works well. In fact, I’ve never seen it work.
MR. Williams: Yes, sir.
TRIAL COURT: But if you want to take that risk, it’s your life.
Mr. Williams: I do.
The trial court announced that it would let Mr. Williams represent himself with defense counsel sitting in second chair.
On the day of the jury trial, the trial court again advised Mr. Williams against self-representation and gave him the opportunity to change his mind. They had the following discussion:
Trial Court: Mr. Williams, you’re charged with two counts of aggravated robbery. They each carry ten to life. Mr. Williams: Yes, sir.
| ./Trial Court: The theft of property with the habitual allegation in this case carries up to 30 years. The terroristic threatening up to 15. There’s two counts of those, and there’s one misdemeanor. And you’re charged with a large hab having four or more prior felonies. You understand what the charges are?
Mr. Williams: Yes, Your Honor.
Trial Court: And, what the range is? Mr. Williams: Yes, Your Honor.
Trial Court: And before we talked about you representing yourself.
Mr. Williams: Yes, Your Honor.
Trial Court: With [defense counsel’s] assistance?
Mr. Williams: Yes, sir.
Trial Court: And, I think I told you I didn’t think that was a very good idea, but you insisted on it. You understand that, and I’m going to give you another chance to change your mind, but you understand that you’re going to be held to the same standards that a lawyer would be held to if you [try] the case.
Mr. Williams: Yes, sir.
Trial Court: If you ask a question that’s objectionable, [and] if the prosecutor objects and it’s sustainable, it will be sustained, and it could be difficult. You understand that?
Mr. Williams: Yes, sir.
Trial Court: You understand the perils of representing yourself in a trial like this.
Mr. Williams: According to the book, it says the guy that represents himself has a fool for a client.
Trial Court: Well, and that’s a pretty good rule. And even I’ve seen attorneys represent themselves, and [they] have been in trouble doing that.
Mr. Williams: Yes, sir.
Trial Court: So you understand all of that.
Mr. Williams: Yes, sir.
Trial Court: And you still want to go ahead and do this.
Mr. Williams: Yes, sir.
Trial Court: Well, we’re going to let you, but I’m advising you heavily against it. You’ve got a good lawyer; you’ve got a couple of good lawyers..
Mr. Williams: Yes, sir.
Trial Court: All right.
DEFENSE COUNSEL: And, just for the record, he does understand that he gives up Rule 37 when he’s representing himself.
Trial Court: Right. And you also understand that you can’t testify ... through questions, but if you do take the stand and you make that decision, that the State can inquire as to your prior felony convictions. You understand that?
Mr. Williams: Yes, sir.
| sTrial Court: Okay, okay.
DEFENSE COUNSEL: And we did tell you that you couldn’t testify through questions, that you had to ask actual questions.
Mr. Williams: Right, exactly.
Trial Court: All right.
Mr. Williams proceeded to represent himself at the jury trial, with standby counsel, resulting in his convictions and thirty-year prison sentence.
Mr. Williams now argues on appeal that his convictions should be reversed and remanded because the trial court erred in permitting him to represent himself and he was denied his Sixth Amendment constitutional right to assistance of counsel. Mr. Williams contends that he suffered this deprivation because his waiver of counsel was not knowing and intelligent, and therefore it was invalid. Mr. Williams specifically asserts that the trial court failed to make him aware of the dangers and disadvantages of representing himself because the trial court did not sufficiently question him about his understanding of the rules of court procedure and rules of evidence and then explain to him the disadvantages he would suffer from his lack of such knowledge.
The Sixth Amendment to the United States Constitution, made obligatory upon the states by the Due Process Clause of the Fourteenth Amendment, guarantees an accused the right to have the assistance of counsel for his defense. Pierce v. State, 362 Ark. 491, 209 S.W.3d 364 (2005). Article 2, section 10, of the Arkansas Constitution provides that an accused in a criminal prosecution has the right to be heard by himself and his counsel. Id. It is also well established that an accused has a constitutional right to represent himself and |9make a voluntary, knowing, and intelligent waiver of his constitutional right to assistance of counsel in his defense. Bledsoe v. State, 337 Ark. 403, 989 S.W.2d 510 (1999).
In Arkansas, we have long recognized the crucial aspect of informing an accused of his right to represent himself, along with the attendant risks. Hatfield v. State, 346 Ark. 319, 57 S.W.3d 696 (2001). A defendant may proceed pro se in a criminal case when: (1) the request to waive the right to counsel is unequivocal and timely asserted; (2) there has been a knowing and intelligent waiver of the right to counsel; and (3) the defendant has not engaged in conduct that would prevent the fair and orderly exposition of the issues. Mayo v. State, 336 Ark. 275, 984 S.W.2d 801 (1999).
Our supreme court has held that the trial court maintains a weighty responsibility in determining whether an accused has knowingly and intelligently waived his right to counsel. Pierce v. State, supra. Determining whether an intelligent waiver of the right to counsel has been made depends in each case on the particular facts and circumstances, including the background, experience, and conduct of the accused. Id. Every reasonable presumption must be indulged against the waiver of fundamental constitutional rights. Id. A specific warning of the dangers and disadvantages of self-representation, or a record showing that the defendant possessed such required knowledge from other sources, is required to establish the validity of a waiver. Id. The burden is upon the State to show that an accused voluntarily and intelligently waived his fundamental right to the assistance of counsel. Oliver v. State, 328 Ark. 743, 918 S.W.2d 690 (1996).
| inThe constitutional minimum for determining whether a waiver was knowing and intelligent is that the accused be made sufficiently aware of his right to have counsel present and of the possible consequences of a decision to forego the aid of counsel. Parker v. State, 93 Ark. App. 472, 220 S.W.3d 238 (2005). Our standard of review is whether the trial court’s finding that the waiver of rights was knowingly and intelligently made was clearly against the preponderance of the evidence. Id. On the particular facts and circumstances of the instant case, we hold that the trial court conducted a sufficient inquiry, specifically warning Mr. Williams of the dangers of self-representation, and that its finding that his waiver was knowing and intelligent was not clearly against the preponderance of the evidence.
In Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the United States Supreme Court held that, although a defendant need not have the skill and experience of a lawyer in order to competently and intelligently choose self-representation, he should be made aware of the dangers and disadvantages of self-representation so that the record will establish that he knows what he is doing and his choice is made with eyes wide open. In Faretta, the Court also concluded that a defendant’s technical knowledge, as such, is not relevant to an assessment of his knowing exercise of the right to defend himself.
In the case at bar, Mr. Williams made unequivocal requests to waive his right to counsel and represent himself at both pretrial hearings and the trial itself. The trial court explained to Mr. Williams that he had a right to counsel, and repeatedly advised against selfjrepresentation,n stating that this would result in a “very severe disadvantage” and would be a “possible disaster.” The trial court specifically advised Mr. Williams that he would be held to the same restrictions and obligations as a lawyer; that he would be subject to the rules of evidence, meaning that objections by the prosecutor might be sustained; that he would not be permitted to testify through his examination of the witnesses; and that if he elected to testify he would be subject to cross-examination about his criminal record. The trial court also made reference to appellant’s lack of skill to cross-examine witnesses, and lack of understanding of the nuances of the charges, jury instructions, and how to structure a defense. The trial court informed Mr. Williams of the seriousness of the charges and possibility of a life sentence, and despite all of these warnings Mr. Williams still insisted that he wished to represent himself. This record demonstrates that Mr. Williams was made aware of the dangers and disadvantages of self-representation, and that he knew what he was doing and chose to represent himself with eyes wide open. Under such circumstances, we cannot agree with Mr. Williams’ assertion that the trial court erred in permitting his self-representation or that there was any constitutional deprivation of his right to counsel.
Affirmed.
MARSHALL and BAKER, JJ., agree. | [
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ROBERT J. GLADWIN, Judge.
liThis is a termination-of-parental-rights appeal brought by Brandi Flowers, with whom DHS has been involved since November 2004. On March 20, 2009, the Pulaski County Circuit Court terminated her parental rights to M.C., born December 6, 2006. Appellant’s attorney has filed a motion to withdraw pursuant to Linker-Flores v. Arkansas Department of Human Services, 359 Ark. 131, 194 S.W.3d 739 (2004), asserting that there are no issues of arguable merit to support the appeal. Under Rule 6-9(i)(l) of the Arkansas Rules of the Supreme Court and Court of Appeals, counsel’s motion is accompanied by an abstract, |2addendum, and brief stating that no adverse ruling was made at the termination hearing and explaining why there is no meritorious ground for reversal, including a discussion of the sufficiency of the evidence to support the termination order. The clerk of this court sent a copy of counsel’s motion and brief to appellant, informing her that she had the right to file pro se points for reversal. See Ark. Sup. Ct. R. 6-9(i)(3). Appellant filed pro se points for reversal on August 18, 2009. We agree with counsel that appellant’s appeal lacks merit.
In Flowers v. Arkansas Department of Human Services, CA08-1148, 2009 WL 268358 (Feb. 4, 2009) (unpublished), we affirmed the termination of appellant’s parental rights to another child, E.B., born December 2, 2002. M.C. was born during the course of E.B.’s proceeding. DHS filed a petition for emergency custody of M.C. on November 13, 2007, after appellant appeared in court for a review hearing in E.B.’s case. In the affidavit supporting its petition, DHS enumerated the many ways in which appellant had failed to follow the case plan in E.B.’s proceeding. It discussed the agency’s difficulty in locating M.C. and reiterated appellant’s lack of progress; failed drug tests; evasion of unannounced home visits; damage to her landlord’s premises; detrimental association with Randall Colon (a convicted felon, who was finally ruled out as M.C.’s father in 2008); and lack of credibility in court. The court entered a probable-cause order directing appellant to cooperate with DHS and giving her supervised visitation.
[¡The court held the adjudication hearing on January 8, 2008. In the resulting order, the court found M.C. to be dependent-neglected and took judicial notice of E.B.’s case, in which the court had found appellant to be an unfit parent. The court set the goal of reunification and ordered appellant to obtain and maintain stable housing and income; to submit to random drug screens; to stay in touch with DHS; to make herself available for home visits and court-ordered services; to participate in individual counseling at DHS’s expense; to notify DHS and her attorney of any change of residence; and to attend parenting classes. The court found that DHS had made reasonable efforts to provide services and ordered it to conduct a home evaluation of appellant’s residence.
The court held a permanency-planning hearing on May 13, 2008. In the resulting order, it continued the goal of reunification and stated that it would give appellant the full twelve months. Finding that DHS had made reasonable efforts to achieve reunification, the court ordered appellant to be drug-free; to submit to random drug screens at least monthly; and to maintain stable housing and income. It relieved her of the requirement of attending individual counseling because she had testified that it had been of no benefit to her.
The court held another permanency-planning hearing on October 14, 2008. It changed the goal to adoption, finding that it was in M.C.’s best interest that appellant’s parental rights be terminated. Nevertheless, the court directed DHS to continue to provide services to appellant until the termination hearing. It noted that, since the last hearing, appellant had tested positive for drugs on two occasions; had refused to submit to several other Udrug screens; and that the court had involuntarily terminated her parental rights to E.B. The court also stated that it was concerned about the lack of utilities in appellant’s home, given the long period of time that DHS had provided services to her; that she had a credibility problem; that she had not maintained stable employment; and that she had an outstanding warrant on which she might be arrested.
DHS filed a petition for termination of appellant’s parental rights to M.C. At the hearing held on February 20, 2009, the court admitted into evidence several orders from E.B.’s proceeding; appellant’s January 2006 psychological evaluation by Dr. Paul Deyoub; and appellant’s drug-screen results. ■ Dr. Deyoub, Ms. Meredith (the caseworker since February 1, 2008), Brenda Keith (an adoption specialist), and appellant testified. Dr. Deyoub said that, after evaluating appellant in January 2006, he diagnosed her with an antisocial personality disorder, which placed her at high risk of being irresponsible and unstable; putting her own needs ahead of her child’s; and making impulsive decisions. He stated that her highest test score was on the hypomania scale, which indicated the likelihood of her engaging in acting-out behavior, seeking excitement, having antisocial boyfriends, abusing drugs, and relapsing. He noted appellant’s narcissistic traits and said that individuals with antisocial personality disorder live in an unstable, narcissistic, impulsive, and hedonistic manner that can cause major problems in parenting, work, and marriage. Dr. Deyoub stated that appellant’s IQ was 78 and that she needed a lot of direction and supervision. He noted that her prior admission that individual counseling, which he had strongly recommended, had been of no benefit, was | .^consistent with an antisocial personality. He stated that appellant’s failure to remedy the problems that led to termination of her parental rights to E.B. indicated that his diagnosis was still valid; in fact, he said, her failure to reunite with E.B. made it even less likely that she would be successful with M.C. Dr. Deyoub described the potential danger that appellant’s personality disorder posed to M.C.:
The potential harmful consequence to a child if they are raised by a caretaker who consistently or continuously engages in antisocial behavior is going to be lack of care. The danger of lack of physical care is a concern, and neglect, exposure to antisocial boyfriends, associates and friends. Antisocials associate with other character disorders. The more subtle problems are not spending enough time with the child, lack of nurturing, lack of interest in their school.
Ms. Meredith recommended that appellant’s parental rights to M.C. be terminated because the court had terminated her rights to E.B. She testified at length about appellant’s failure to keep DHS informed of her current address and place of employment, which made it difficult to visit her home. In November 2008, she said, appellant moved without telling DHS, and the apartment was vacant when she arrived for a visit. She said that the information appellant provided about her employment was so inconsistent that she was still not sure where appellant worked. Ms. Meredith testified that appellant had negative drug screens on November 12 and December 3, 2008; that appellant’s February 18, 2009 sample was cold to the touch; and that, on January 28, 2009, appellant said that she could not urinate, which DHS treated as a refusal. Ms. Meredith said that on January 12 and 22, 2009, she made two unsuccessful attempts to perform unannounced visits of appellant’s latest residence. She was concerned about appellant’s continued association, and apparent cohabitation, with Randall |fiColon, who was recently released from prison; his mother had informed Ms. Meredith that they were living together. Ms. Meredith recounted appellant’s lies about the true ownership, of the car she was driving (with a suspended driver’s license). She said that appellant did not show up for the scheduled visit with M.C. on November 5, 2008, although Mr. Colon appeared and told her that appellant was unable to attend that day; later, appellant called her and said that she had mixed up the dates. Ms. Meredith added that, on two occasions, appellant had become hostile at the DHS office and had cursed in front of other clients and children.
Brenda Keith testified that M.C. is adoptable, based on her age, good health, and lack of major delays. She said that she had matched M.C. with 24B families that were available to be considered for adoption of children with her specific characteristics. She confirmed Ms. Meredith’s testimony about appellant’s untrue statements concerning the ownership of the vehicle she drove.
Appellant characterized all of her drug screens as negative; denied living with Mr. Colon but said that she loved him and was in a relationship with him; disputed Ms. Meredith’s testimony about her failure to apprise DHS of her current address and employment; admitted that she did not have a driver’s license; denied lying to Ms. Meredith about the ownership of the automobile she drove; and admitted that she had outstanding court fines.
_JjFrom the bench, the trial court recounted appellant’s lengthy history with DHS and her many instances of noncompliance with the court orders and case plan. The court found that appellant had “flat-out lied to the agency” and at trial, saying, “She’s a chronic liar. That’s always been the case.” The court entered an order finding that DHS had an appropriate placement plan for M.C. (adoption); that M.C. was adoptable; and that termination was in M.C.’s best interest. The court terminated appellant’s parental rights on two grounds: appellant’s failure to correct the conditions that caused the removal while M.C. was out of her custody for twelve months, and the court’s involuntary termination of her parental rights to E.B. Appellant filed a timely notice of appeal.
Pursuant to Arkansas Code Annotated section 9-27-341(b)(3)(A) (Supp. 2009), an order terminating parental rights must be based on a finding that termination is in the child’s best interest, which includes consideration of the likelihood that the juvenile will be adopted and the potential harm caused by returning custody of the child to the parent. The harm referred to in the termination statute is “potential” harm; the circuit court is not required to find that actual harm would result or to affirmatively identify a potential harm. Lee v. Ark. Dep’t of Human Servs., 102 Ark.App. 337, 285 S.W.3d 277 (2008). In addition, the proof must establish at least one of several statutory grounds. Ark.Code Ann. § 9-27-341(b)(3)(B).
Through the testimony of Ms. Keith, DHS presented evidence that M.C. is likely to be adopted, and Dr. Deyoub’s testimony overwhelmingly established that returning the child to appellant held potential harm. The trial court partially based its decision on the termination 18of appellant’s parental rights to M.C.’s sibling, E.B. See Ark.Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(4). Because we affirmed that decision, this ground was conclusively established. The trial court also found that the child had been adjudicated by the court to be dependent-neglected and had continued out of appellant’s custody for twelve months and, despite a meaningful effort by the department to rehabilitate appellant and correct the conditions that had caused removal, those conditions had not been remedied. See Ark.Code Ann. § 9-27-341(b)(3)(B)(i)(a). DHS also established this ground.
In spite of more than four years of services from DHS, appellant made no more progress in this proceeding than she did in E.B.’s case, and did not correct the problems that had caused her to lose her parental rights to E.B. At the time of trial, appellant was marginally employed, and her caseworker was not even sure where she worked. Throughout this proceeding, appellant consistently failed to notify her caseworker of her changes of address; continued to abuse drugs; and lied to DHS and to the court. Dr. Deyoub found no reason to believe that she had improved since he had diagnosed her with antisocial personality disorder in 2006. Additionally, appellant continued her relationship with Mr. Colon, a convicted felon, even though she knew that it was a factor in losing her parental rights to E.B.
Appellant’s pro se points consist of complaints about the bias of the caseworker, which allegedly prevented her from getting a fair trial. She did not, however, raise this issue below. We do not reach arguments in termination cases that were not raised to the trial court. Moore v. Ark. Dep’t of Human Servs., 95 Ark.App. 138, 234 S.W.3d 883 (2006).
¡After careful examination of the record, we find that counsel has complied with the requirements established by the Arkansas Supreme Court for no-merit termination cases, and we hold that appellant’s appeal is wholly without merit. We further hold that the circuit court’s decision to terminate appellant’s parental rights was not clearly erroneous. Accordingly, we grant counsel’s motion to withdraw and affirm the order terminating Flowers’s parental rights.
Affirmed.
VAUGHT, C.J., and MARSHALL, J., agree.'
. The only adverse ruling was the circuit court's refusal to give appellant a final visit with the child, which did not affect its decision to terminate parental rights. | [
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ROBERT L. BROWN, Justice.
|iAppellant Julia Carole Gunn appeals from the circuit court’s grant of summary judgment on all of her claims in favor of the appellees, Farmers Insurance Exchange, Truck Insurance Exchange, Fire Insurance Exchange, Mid-Century Insurance Company, Farmers New World Life Insurance Company, and Farmers Insurance Company (collectively known as Farmers), and Farmers Group Incorporated (FGI). We affirm.
Before becoming an insurance agent for Farmers in 1980, Gunn worked in the office of her husband, who was also a Farmers insurance agent. When she and her husband divorced, she decided she wanted to become an insurance agent. There is some disagreement in the deposition testimony about whether Gunn approached Jerry Carter, who was a Farmers | ¡.district manager, about becoming an agent or whether Carter recruited Gunn as an agent. In either event, Gunn did obtain her insurance agent’s license and began working as a Farmers agent in Greenwood in 1980.
On March 24, 1980, Gunn entered into an agreement (Agreement I) to accept appointment as a reserve agent with Farmers. On September 16, 1980, Gunn signed a second agreement (Agreement II) with Farmers, entitled Agent Appointment Agreement. She signed a third agreement (Agreement III) on August 25, 1991, also entitled Agent Appointment Agreement. Agreements II and III contain the same termination provision, paragraph C, which states: .
C. This Agreement terminates on the death of the Agent and may be terminated by either the Agent or [Farmers] on three (8) months written notice.
If the provisions of this Agreement are breached by either the Agent or [Farmers], the Agreement may be terminated by the other party on thirty (30) days written notice. This Agreement may be terminated immediately by mutual consent or by [Farmers] for the following reasons:
1. Embezzlement of monies belonging to the Companies.
2. Switching insurance from the Companies to another carrier.
3. Abandonment of the Agency.
4. Conviction of a felony.
5. Willfull [sic] misrepresentation that is material to the operation of the Agency.
Gunn asserts that when she signed Agreement II in 1980, Carter assured her that she could be her own boss and create job security by building a profitable agency. She further claims that she expressed concern to Carter about the termination provision and that he assured her she need not worry about termination unless she committed one of the five ^enumerated breaches. Gunn asserts that she entered into Agreement II based on these assurances by Carter. Eleven years later, she signed Agreement III with the same termination provision and without requesting any additional information about the provision.
Carter was Gunn’s district manager from 1980 to 2000. During those years, Carter stated that she ran a generally profitable agency. In 2001, Mike Wolfe became district manager. Gunn maintains that Wolfe began increasing demands on the agents by imposing quotas on them, which was not permitted by Farmers. She contends that Wolfe moved all of her 500 series policies to his girlfriend, who later became his wife. Those policies were transferred back to Gunn about a year later. Sometime around January 1, 2002, Farmers made changes to its policies that resulted in dramatic increases in the premiums charged to customers. According to Gunn, these changes led to a decline in her business. She notes, however, that she earned the maximum contract bonus that year and was inducted into the Farmers Walk of Fame around that time.
In June 2003, Gunn was placed on the Farmers’ Deteriorating Agency Rehabilitation Program (DARG). She next received a letter, dated September 22, 2004, from Don Strum, a division marketing manager for Farmers, stating that Farmers was electing to terminate her contract, pursuant to paragraph C, effective December 27, 2004.
Gunn filed her complaint on November 27, 2007, in which she asserted four causes of action: Count I. Breach of contract and interference with contractual relationship or business expectancy; Count II. Misrepresentation, deceit, and outrage; Count III. ^Negligence; and Count IV. Breach of the Arkansas Franchise Practices Act. Farmers moved for summary judgment on all counts, and after a hearing on the motion, the circuit court issued a letter summarizing findings on each count and granting the motion on all counts. The court’s judgment was entered on March 2, 2009.
I. Standard of Review
Gunn challenges the circuit court’s grant of summary judgment on her contract claims and asserts that the termination provision in Agreements II and III are ambiguous and that she is entitled to protection under the Franchise Act. A trial court may grant summary judgment only when it is clear that there are no genuine issues of material fact to be litigated and that the party is entitled to judgment as a matter of law. Harris v. City of Fort Smith, 359 Ark. 355, 197 S.W.3d 461 (2004). Once the moving party has established a prima facie case showing entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Young v. Gastro-Intestinal Ctr. Inc., 361 Ark. 209, 205 S.W.3d 741 (2005). On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of its motion leave a material fact unanswered. Mitchell v. Lincoln, 366 Ark. 592, 597, 237 S.W.3d 455, 458 (2006). This court views the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id.
1JL Contract Claims
We will first address Gunn’s contract claims. Gunn asserts that Farmers breached Agreement III and wrongfully terminated her. She urges that provision C of Agreement III, the termination provision, is ambiguous as to whether termination may be made only “with cause.” Gunn’s argument on this point has no merit.
To repeat, the provision at issue reads:
C. This Agreement terminates on the death of the Agent and may be terminated by either the Agent or [Farmers] on three (3) months written notice.
If the provisions of this Agreement are breached by either the Agent or [Farmers], the Agreement may be terminated by the other party on thirty (30) days written notice. This Agreement may be terminated immediately by mutual consent or by [Farmers] for the following reasons:
1. Embezzlement of monies belonging to the Companies.
2. Switching insurance from the companies to another carrier.
3. Abandonment of the Agency.
4. Conviction of a felony.
5.Willful [sic] misrepresentation that is material to the operation of the Agency.
As can be seen, there are three termination clauses. The first is a clause allowing termination without cause and permits termination by either the Agent or Farmers on three months’ written notice. The second clause permits termination for breach of contract. Under that clause, the nonbreaching party may terminate on thirty days’ written notice. There, finally, is a “for cause” clause which allows immediate termination if the agent engages in any of the five listed behaviors. Gunn’s belief alone that the contract is ambiguous is not enough to make it so. The contract clearly provides three different ways an agent can be terminated |fiwith three different procedures. The procedures and reasons are not ambiguous in any sense and are easy to understand. Because of this, there is no reason for this court to resort to rules of construction to interpret this contract. See Elam v. First Unum Life Ins. Co., 346 Ark. 291, 57 S.W.3d 165 (2001).
Gunn goes on to argue that even if her contract permitted termination for reasons other than the five-stated reasons, it does not permit termination in bad faith. To support her argument, she relies on Randolph v. New England Mutual Life Ins. Co., 526 F.2d 1383 (6th Cir.1975), and Yarborough v. DeVilbiss Air Power, Inc., 321 F.3d 728 (8th Cir.2003).
Apart from the fact that this federal authority is not binding on this court, the Yarborough case does not appear to be at odds with Farmers’s position that the implied covenant of good faith does not apply (1) where the parties have expressly disavowed any limitations on their discretion, and (2) the consequences of the exercise of that discretion are easily foreseeable. The termination clause at issue provides for termination on three months’ written notice without cause. The parties clearly bargained for such termination on three months’ notice, and an implied covenant should not be used to limit an expressly bargained-for term. Moreover, a genuine issue of material fact that Farmers terminated Gunn’s contract in bad faith is lacking in this case.
III. Tortious Interference
_JjGunn next raises her claim of interference with a contractual relationship or business expectancy. She acknowledges that a party cannot tortiously interfere with its own contract and, therefore, limits her claim to FGI, which was not a named party to the contract. She maintains that her action is not time barred and, also, that FGI was involved in a scheme to terminate her contract without good cause through the use of the DARG program. Gunn’s arguments are without merit because her claim is time barred, and there is no genuine issue of material fact as to whether FGI used the DARG program to terminate her without good cause.
Tortious interference with a contractual relationship or business expectancy is intentional and improper conduct by a person that induces or otherwise causes a third person not to perform a contract. Quality Optical of Jonesboro, Inc. v. Trusty Optical, L.L.C., 365 Ark. 106,109, 225 S.W.3d 369, 372 (2006) (citing Mason v. Wal-Mart Stores, 333 Ark. 3, 969 S.W.2d 160 (1998)). It is well established that a cause of action accrues the moment the right to commence an action comes into being, and the statute of limitations commences to run from that time. Id. at 109-10, 225 S.W.3d at 372. The statute of limitations governing tortious interference with a contract is found in Arkansas Code Annotated section 16-56-105, which provides, in part: “The following actions shall be commenced within three (3) years after the cause of action accrues: (3) All actions founded on any contract or liability, express or implied [and] (6) [a]ll actions for taking or injuring any goods or chattels.” Ark.Code Ann. § 16-56-105 (Repl.2005). The statutory limitations period begins to run when there is a ^complete and full cause of action and, in the absence of concealment or wrong, when the injury occurs, not when it is discovered. Quality Optical, 365 Ark. at 110, 225 S.W.3d at 372. Gunn claims that her cause of action is not time barred because it was not complete until she was actually terminated on December 27, 2004, and not when she was advised of her termination on September 22, 2004.
In her first complaint, Gunn based her tortious interference claim on the following actions:
1. The institution of Consumer Report scoring by Farmers as part of the rate structure in 2002.
2. Effective January 1, 2002, Farmers eliminated the Town Class Exception involving fire departments for two years.
3. Farmers intentionally and regularly interfered with her business, beginning June 18, 2003, by requiring her to produce meaningless data and numbers.
Her amended complaint reveals the same actions and adds only that the DARG program specifically states “in keeping with our contractual relationship, agents are not assigned sales quotas or sales goals, nor are they required to provide written plans and objectives for the development of the agency.” According to her pleadings, Gunn was placed on the DARG program in June 2003.
It appears that Gunn did not contend before the circuit court that her placement on the DARG program consti tuted tortious interference. But in addition to this, if this court construed her original complaint as referring to the DARG program, all of the actions she complains of are time barred. Gunn filed her first complaint on October 17, 2007. All of the |9events which are the essence of her complaint, including her placement on the DARG program, occurred in 2002 and 2008. Her claim, therefore, was not filed until well after the three-year statute of limitations. This court does not recognize a continuing tort theory. Quality Optical, 365 Ark. at 110, 225 S.W.3d at 372. Because all of the actions which form the essence of her complaint occurred more than three years prior to the filing of her complaint, Gunn’s tortious interference claim against FGI is time barred.
IV. Fraud and Deceit
Gunn next claims that Jerry Carter induced her to sign Agreement III by making false representations, and that summary judgment, as a result, was improper.
We first consider whether this issue is time barred. Gunn signed Agreement III in 1991. Arkansas Code Annotated section 16-56-105 provides a three-year statute of limitations on claims for fraud in the inducement. In granting the motion for summary judgment, the circuit court relied on Wilson v. General Electric Capital Auto Lease, Inc., 311 Ark. 84, 841 S.W.2d 619 (1992).
ImThe facts in Wilson are straightforward. In February 1987, Robert and Cindy Wilson signed a contract to lease a 1987 Toyota Camry from Jones Toyota for five years. Id. at 86, 841 S.W.2d at 620. They claimed that the leasing manager told them they could return the car to the car dealership in three years and could walk away not owing anything. Id. They also alleged that he told them they would not need excess-mileage coverage if they returned the car in three years. Id. After three years, the Wilsons reached the 75,-000 mile mark on their Camry and attempted to return the vehicle. Id. General Electric Capital Auto Lease refused to take the car back. Id. Provision K of the contract entitled, “Early Termination,” provided a formula for an early termination charge, should the party contracting to lease the car want to terminate the contract before the five-year term ended. Id.
The Wilsons filed their complaint three years and four months after executing the contract. Id. at 86, 841 S.W.2d at 620. The circuit court granted summary judgment because the claims based on misrepresentation were barred by the statute of limitations. Id., 841 S.W.2d at 620. On appeal, this court affirmed and ruled that the Wilsons knew or should have known of the contract’s actual provisions so there was no genuine issue of material fact precluding summary judgment. Gunn attempts to distinguish her case based on the fact that she asked Carter about the three-month termination provision and exercised reasonable diligence by discussing it with Carter.
The circuit court in the instant case determined that Gunn’s cause of action was time barred because the statute of limitations began to run when she received the letter notifying |nher that Farmers wished to exercise its rights under provision C of Agreement III. She argues that her cause of action was not complete until she was actually terminated. We disagree. The contract required three months’ notice prior to termination. The termination letter dated September 22, 2004, states clearly: “We have elected to exercise Paragraph ‘C’ and terminate your contract effective December 27, 2004.” The statute of limitations began to run at this point, when she knew or should have known that paragraph C did not mean what Carter now contends it meant. Gunn did not file her complaint until December 27, 2007. We conclude that her claim is time barred.
V. Arkansas Franchise Practices Act
Gunn’s final point on appeal is that she was a franchisee under the Arkansas Franchise Practices Act (Franchise Act). Gunn asserts that the circuit court misapplied the Franchise Act when it concluded that as a matter of law she was not a franchisee under these facts. Farmers counters that the circuit court properly applied the Franchise Act and this court’s decision in Stockton v. Sentry Insurance, 337 Ark. 507, 989 S.W.2d 914 (1999), when it determined that there was no genuine issue of material fact over whether Gunn was a franchisee.
A franchise is defined by the Franchise Act as:
|i2a written or oral agreement for a definite or indefinite period in which a person grants to another person a license to use a trade name, trademark, service mark, or related characteristic within an exclusive or nonexclusive territory or to sell or distribute goods or services within an exclusive or nonexclusive territory at wholesale or retail, by lease agreement, or otherwise.
Ark.Code Ann. § 4-72-202(l)(A) (Repl. 2001) (emphasis added).
The General Assembly designed the Franchise Act for the protection of the public and aired its purpose in the emergency clause:
that some franchisors have, without good cause and to the great prejudice and harm of the citizens of the State of Arkansas, cancelled existing franchise agreements and that other such cancellations are threatened; and that only by the immediate passage of this Act can this situation be remedied and it is therefore necessary in the public interest to define the relationship and responsibilities of franchisors and franchisees in connection with franchise agreements.
Act of Mar. 4, 1977, No. 355 § 13, 1977 Ark. Acts 592. This court has held that the Franchise Act should be liberally construed to carry out the legislative goal. Dr. Pepper Bottling Co. of Paragould v. Frantz, 311 Ark. 136, 143, 842 S.W.2d 37, 41 (1992).
In Stockton v. Sentry Insurance, we addressed the issue of whether an insurance agent’s business made him a franchisee under the Franchise Act. Russ Stockton was an insurance agent for Sentry Insurance. Stockton, 337 Ark. at 511, 989 S.W.2d at 916. He signed an “Employment Application” with Sentry that con tained an authorization for investigative reporting and drug testing. Id. at 511-12, 989 S.W.2d at 916. That authorization read that all employees would be “at-will.” Id. at 512, 989 S.W.2d at 916. Stockton also executed a “Sales Representative Employment Contract.” Id. This document delineated the parameters of the | ^relationship between Stockton and Sentry Insurance. Id, 989 S.W.2d at 916-17. In paragraph number two, the following language appears:
[T]he sales representative shall submit each and every such application for insurance to the employer or its appropriate affiliate or subsidiary as directed by the employer, and the Employer, or its affiliate or subsidiary, as the case may be, shall have the absolute right to accept or reject the same.
Id. at 512, 989 S.W.2d at 917 (emphasis added).
Because of this language, this court held in Stockton:
Plainly, the legislature intended the statute to apply where a person grants another person a license to “sell or distribute goods or services within an exclusive or nonexclusive territory ...” In the instant case, Stockton maintained no inventory, had no authority to set prices, and could not enter into a binding contract of insurance. Stockton’s authority went no further than to solicit and procure applications for insurance ... The Illinois appeals court’s holding in Vit-kauskas v. State Farm Mut. Auto. Ins., 157 Ill.App.8d 317, 109 Ill.Dec. 373, 509 N.E.2d 1385 (1987) is also persuasive. There, the court held the Illinois Franchise Act inapplicable to an insurance salesman where he had no authority to consummate a sale but could only solicit applications. We therefore hold that the trial court properly dismissed the claim as a matter of law in that no genuine issue of fact existed as to whether appellant had a franchise from Sentry Insurance.
Id. at 512-13, 989 S.W.2d at 917.
It is clear to this court that our decision in Stockton was grounded on the pivotal fact that Stockton could not consummate a sale of insurance. In holding as we did, we relied on Kent Jenkins Sales, Inc. v. Angelo Brothers Co., 804 F.2d 482 (8th Cir.1986), where a franchise was not found because Jenkins did not have the unqualified authority to transfer the goods involved and, thus, was not an actual seller of the goods. We also looked to Vitkauskas v. State Farm Mutual Automobile Insurance Company, 157 Ill.App.3d 317, 109 Ill.Dec. 373, 509 N.E.2d 1385 (1987), where the 114insurance salesman was deemed not to be an insurance salesman because he had no authority to “consummate a sale,” as already noted. In its discussion of what it meant to sell, the Illinois appellate court said:
The right to sell consists of an unqualified authorization to transfer a product at the point and moment of the agreement to sell or authority to' commit a grantor to sell. The plaintiff did everything he could legally and responsibly do to effect a sale, but the sale could not be effective until approval of the defendant was forthcoming. Plaintiff could not commit the defendant to a binding contract of insurance. He could solicit an application for insurance, but he could not sell within the meaning of the IFDA.
Id. at 1391 (emphasis added).
In the case at hand, Gunn could not change the terms of any insurance policy, and she did not have the “unqualified authorization” to transfer a product at the time of sale or permanently bind Farmers to a contract. Gunn is most fairly characterized as a promoter or solicitor for the insurance procured.
Gunn would like to equate the authority to grant a temporary “binder” for coverage to the authority to issue permanent insurance. This is not correct. Arkansas Code Annotated section 23-79-120 permits oral and written temporary insurance coverage, referred to as a binder. Farmers urges that Gunn’s power to temporarily bind it to insurance derives from this [1fistatute. Section 23-79-120, though, merely permits insurance companies to issue temporary binders and provides rules to govern those binders. It does not require companies to issue binders and cannot, as a consequence, be said to create the power in an agent to bind an insurance company. Farmers’s decision to allow agents to issue temporary coverage, no doubt, was for the convenience of business and to make its policies more attractive to customers because they could get instant coverage. But, ultimately, under Agreement III only business acceptable to Farmers would be permanently covered. Hence, Gunn did not have the unqualified power to bind Farmers permanently to underwrite an insurance policy.
Other jurisdictions have made similar findings where the insurance company retains the power to accept or reject policies written by the agent. While we recognize that these holdings are nonbinding on the court, we find the holdings of these courts to be persuasive. See Keeney v. Kemper Nat’l Ins. Cos., 960 F.Supp. 617 (E.D.N.Y.1997) aff'd sub nom., 133 F.3d 907 (2d Cir.1998) (holding that where the insurance agent was authorized to bind the company only to the extent of a specific authority granted and where the insurance company retained exclusive and absolute control over the underwriting and acceptance of all policies generated, there was no franchise agreement under the New York Franchise Sales Act as a matter of law); Durst v. Illinois Farmers Ins. Co., No. 05 C 574, 2006 WL 140546 (N.D.Ill] lnJan. 12, 2006) (granting insurance company’s motion to dismiss under the Illinois Franchise Disclosure Act where the agreement clearly contemplates that any insurance policies sold by the agent had to be first approved by the insurance company).
Gunn goes on to argue that her case is factually different from Stockton. For example, she asserts that she was an independent contractor — not an employee. That distinction, however, while relevant, is not determinative of whether a franchise exists. See Vitkauslcas v. State Farm Mut. Auto. Ins. Co., 157 Ill.App.3d 317, 109 Ill.Dec. 373, 509 N.E.2d 1385. Gunn adds that she had an office building and had authority to adjust claims by contract, within “her authority.” Her authority to adjust, however, according to her district manager, Mike Wolfe, was on a “very, very limited” basis.
Accordingly, as was the case with Stockton, Gunn did not have the unqualified authority to sell policies or commit Farmers to an insurance contract other than a temporary binder, which, by definition, could be cancelled at any time at the discretion of Farmers. Gunn had no authority to change or set prices, evidenced by her complaint that Farmers continued to change policies and increase prices, which resulted in her loss of business. As she said in her deposition, “I lost a ton of business over credit scoring. I had lost policies like other agents had because of different underwriting rules that had changed.” Gunn had no authority to change the premium, the date the payment was due, or the terms of the insurance policy. She admits that she did not sell any tangible product, and she did not charge money outside of the premium paid to Farmers for insurance services. She farther admits that the money that changed hands consisted of premiums that she forwarded on to the companies.
|,7We conclude that only policies “acceptable” to Farmers could be underwritten under Agreement III, and only Farmers under that agreement could commit the company to coverage. The unqualified authority to sell or distribute goods or services is an essential component of a franchise agreement. See Ark.Code Ann. § 4-72-207(l)(A) (Repl.2001). That authority in Gunn was lacking in this case, as Agreement III makes patently clear. We consider this factor determinative for purposes of the Franchise Act, as it was in Stockton.
The dissent focuses on independent-contractor status and limited binding and adjustment authority but that is not the test under the statute, Arkansas Code Annotated section 4 — 72—202(1)(A), or the Stockton case. The ability to sell is what is critical under the statute and Gunn did not have that authority. Only policies “acceptable” to Farmers could be underwritten. Moreover the Stockton case made it clear that (1) maintaining an inventory, (2) the authority to set prices, and (8) the ability to enter into a binding contract of insurance were essential to franchise status. The authority to enter into a temporary binder does not equate to the ability to sell.
Other jurisdictions have recognized that the single most important factor in determining whether a franchisee has the right to sell the franchisor’s goods or services is the ability to transfer the product itself or commit the franchisor to a transaction at the moment of the agreement to sell. See, e.g., John Maye Co. v. Nordson Corp., 959 F.2d 1402, 1406 (7th Cir.1992). It is not enough that a party has the authority to do everything but give final approval of the order or sale. Id. at 1407-08.
[¡Affirmed.
HANNAH, C.J., DANIELSON and WILLS, JJ., concur in part and dissent in part.
. Gunn was married to Carter for a few months in 1981.
. Gunn has abandoned her negligence claim on appeal.
. Arkansas Code Annotated section 16-56-105(1) provides:
The following actions shall be commenced within three (3) years after the cause of action accrues:
(1) All actions founded upon any contract, obligation, or liability not under seal and not in writing, excepting such as are brought upon the judgment or decree of some court of record of the United States or of this or some other state.
. The circuit court ruled that Gunn was on notice of the potential fraud in 1991, when she signed Agreement III. To support that ruling, the circuit court pointed out that Agreement III plainly contradicts the statements of Carter in 1991. The court, therefore, found that she was on notice the day she signed the contract in 1991. While this may be true, it is certainly clear that she was on notice on September 22, 2004, when she received the termination letter. This court need not decide if she exercised "due diligence” at the time she signed the contract to resolve the statute-of-limitations issue.
. Arkansas Code Annotated section 23-79-120 provides:
(a) Binders or other contracts for temporary insurance may be made orally or in writing and shall be deemed to include all the usual terms of the policy as to which the binder was given together with such applicable endorsements as are designated in the binder, except as superseded by the clear and express terms of the binder.
(b) No binder shall be valid beyond the issuance of the policy with respect to which it was given, or beyond ninety (90) days from its effective date, whichever period is the shorter.
(c) If the policy has not been issued, a binder may be extended or renewed beyond the ninety (90) days with the written approval of the Insurance Commissioner or in accordance with such rules and regulations relative thereto as the commissioner may promulgate.
(d) This section shall not apply to life insurance or accident and health insurance. | [
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PER CURIAM.
_[_¡A jury found appellant Robert James guilty of first-degree murder and sentenced him to life imprisonment for killing Tony Rice. The attorney appointed to represent appellant on appeal of the conviction has filed a motion to withdraw as counsel and a no-merit brief. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Arkansas Supreme Court Rule 4-3(k) (2010) set the requirements for withdrawal of counsel for a defendant in a criminal case after a notice of appeal has been filed on the basis that an appeal is without merit. In accordance with Rule 4 — 3(k)(2), our clerk furnished appellant with a copy of the brief. Appellant submitted pro se points for reversal, and the State has responded.
| pOur jurisdiction is under Arkansas Supreme Court Rule l-2(a)(2) (2010) because appellant received a sentence of life imprisonment. We find no error in the court’s rulings below. We therefore grant counsel’s motion to withdraw, and we affirm the conviction.
The evidence presented at trial showed that appellant had separated from his wife, Heather, and that Heather was having an affair with Tony Rice. Heather testified that she had told appellant about the affair, and it was clear that appellant had been aware of the affair for more than a month before shooting Rice. In the months prior to the attack, appellant had contacted two women who had been married to Rice a number of times, asking questions about Rice and indicating that he thought the affair had been ongoing for several months. Appellant had also spoken to Rice, asking his intentions towards Heather’s son.
On August 8, 2008, appellant told his son that he was going to get bread and went to the Wal-Mart store where Heather and the victim worked together. The State introduced as evidence video from a security camera that showed appellant arriving at the Wal-Mart parking lot, appellant waiting in the car for some minutes, and Heather and Rice crossing the lot to their trucks after their shift ended. As Heather testified, she and Rice opened the doors to their trucks to let the heat out and stood talking for a brief while. The video documented that appellant then drove his truck from a parking space some distance away to the employee section of the lot and blocked Rice’s truck in. Heather testified that appellant got out and began firing. Heather and another witness described how appellant continued firing as he chased Rice when he fled and fired the gun a final time standing over Rice after Rice fell to the ground.
| ¡¡Appellant then emptied the spent shells from his gun and left the parking lot. He drove home, told his son that he had shot Tony, and waited on the porch for the police to arrive. The police found the murder weapon in the house and a note from appellant to Heather. The note expressed sorrow that “it ended this way” and thanked her for the time with her son. Four law enforcement officers testified that appellant had made statements to them admitting that he had shot Rice. The medical examiner testified that Rice had some other minor wounds and had died from two gunshot wounds to his face.
Counsel identifies a number of rulings adverse to appellant that he arranges into eight groups for discussion and explains why none provide a meritorious ground for reversal. We address those arguments first, beginning with appellant’s motions for directed verdict. Although the rulings on the motions for directed verdict are not addressed by counsel as his first rulings for discussion, double-jeopardy considerations require this court to review directed-verdict arguments before other points are addressed. Strong v. State, 372 Ark. 404, 277 S.W.3d 159 (2008).
|4I. Appellant’s Motions for Directed Verdict
Counsel on appeal asserts that appellant’s motions for directed verdict were properly denied by the trial court. We treat a motion for directed verdict as a challenge to the sufficiency of the evidence. Marcyniuk v. State, 2010 Ark. 257, 373 S.W.3d 243. Our standard of review for a sufficiency challenge is well settled; we view the evidence in the light most favorable to the State and consider only the evidence that supports the verdict. Id. We affirm a conviction if substantial evidence exists to support it. Id. Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Id.
Appellant moved for a directed verdict on the basis that the State did not present evidence sufficient to establish that appellant had the purpose necessary for the charge and that the evidence only showed that appellant had “lost it.” The requisite intent for first-degree murder is purposefully. Brown v. State, 374 Ark. 324, 287 S.W.3d 587 (2008); ArkCode Ann. § 5-10-102(a)(2) (Repl.2006). “A person acts purposely ... when it is the person’s conscious object to engage in conduct of that nature or to cause the result.” Ark.Code Ann. § 5-2-202(1) (Repl.2006). A criminal defendant’s intent or state of mind is seldom capable of proof by direct evidence and must usually be inferred from the circumstances of the crime. Robinson v. State, 353 Ark. 372, 108 S.W.3d 622 (2003). In cases of first-degree murder, intent may be inferred from the type of weapon used; the manner of its use; and the nature, extent, and location of the wounds. Leaks v. State, 345 Ark. 182, 45 S.W.3d 363 (2001).
In Leaks, the appellant also presented an argument that evidence of the defendant’s intense emotion at the time of the killing was “provocation” that prevented any proof of the necessary intent. As in Leaks, we do not consider evidence of such emotion because we only consider the evidence that supports the guilty verdict. Id. at 184, 45 S.W.3d at 364-65. Here, there was evidence that appellant had pri- or knowledge of the affair and investigated the victim’s background; that appellant waited in his truck after arriving at the store until Heather and Rice were standing by their vehicles; and that appellant fired multiple shots, chased his victim, and stood over him to deliver a final shot to the head. Under these circumstances, substantial evidence exists to support the conviction.
II. State’s Motion in Limine to Exclude Reference to the Extramarital Affair
The State filed a motion in limine seeking an order from the court that any reference to the affair between Heather and the victim should be excluded. The motion asserted that appellant had raised no defense that would make the information relevant and that the probative value of the evidence would be outweighed by its prejudice. During the hearing |fion the motion, the State argued that appellant had not raised justification or any other defense that would cause the evidence of the affair to be relevant. Appellant in turn asserted that his defense was that the State would not show the frame of mind required for first-degree murder, and evidence of an affair was therefore relevant. Counsel pointed to references to the affair in statements by the witnesses.
The court’s ruling was generally favorable to the defense, finding that the State had been given adequate notice of the defense and that the defense would be allowed to fully develop that defense, including reference to the ongoing affair, during presentation of its case. The only restriction the court placed on the defense’s ability to elicit the information was that it would be limited during the State’s case to the scope on direct.
Although the trial court should afford wide latitude in the use of cross-examination in bringing the facts to the jury, cross is limited to the subject matter of the direct examination and matters affecting the credibility of the witness. See Holloway v. State, 363 Ark. 254, 213 S.W.3d 633 (2005); Ark. R. Evid. 611(b) (2010). Moreover, trial counsel agreed that the evidence could only be introduced in the State’s case if the State opened the door, and he stated that his only issue with the motion was whether the evidence could come in. A party cannot complain on appeal about relief to which he agreed or sought. Holloway, 363 Ark. at 269, 213 S.W.3d at 643.
17III. Request to Excuse Jurors for Cause
The defense asked the court to excuse two jurors for cause. The court declined the requests. Each of the two jurors was excused by one of the parties through a peremptory strike, and neither sat on the jury panel. The loss of peremptory challenges cannot be reviewed on appeal. Jackson v. State, 375 Ark. 321, 290 S.W.3d 574 (2009). An argument as to a venire person who was struck through the exercise of a peremptory challenge by either party is not a claim that may be raised on appeal. See id.
IV. Objections to Counsel’s Cross-examination of Sandra Rice
Sandra Rice testified that she had been married to Tony Rice and had divorced him that April. She said that appellant had approached her at work on two occasions to talk about the affair between Tony and Heather. She responded by telling appellant that she was divorced and that it was not her business. She testified that appellant told her that Tony and Heather had been having an affair since December. Defense counsel questioned Ms. Rice on cross-examination, asking her if she had learned after her divorce that Tony and Heather were having an affair. The State objected to the question on the basis of hearsay, and the court sustained the objection. Counsel then asked if Ms. Rice believed at the time she was divorced that Tony was having an affair with Heather. Ms. Rice responded, “No.” The State objected again, asserting that the question called for speculation by the witness. The court sustained the objection.
| sAppellate counsel argues that the court’s rulings were correct that the questions would have elicited hearsay or speculative information. We note that the objection to the second question was late, coming after the witness responded. Whether the objections were properly sustained or not, we conclude that neither question was relevant to appellant’s defense, and appellant was not prejudiced by any exclusion of the testimony.
Evidence which is not relevant is not admissible. Ark. R. Evid. 402 (2010). Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Ark. R. Evid. 402. Ms. Rice had testified that appellant said he believed that his wife and the victim had been having an affair since December. Appellant’s state of mind had already been established; questions of Ms. Rice’s state of mind, or whether appellant’s beliefs were accurate, were of no consequence to appellant’s defense. This court will not reverse the circuit court’s ruling on the admission of evidence absent an abuse of discretion and a showing of prejudice. Eubanks v. State, 2009 Ark. 170, 303 S.W.3d 450 (2009). Neither ruling provided a meritorious ground for reversal.
V. Appellant’s Objections to Admission of Handwritten Note
Police Chief John O’Brien testified that Special Agent Mendenhall had photographed and later collected appellant’s handwritten note to Heather. At that point, trial counsel raised objections to the admission of the note, asserting that no photographs or reproductions of the note, rather than the handwritten note itself, should be admitted, and protesting that he had not been provided a completely legible copy of the note. The court granted counsel’s ^objection concerning the best evidence rule and found that appellant had notice of the note and should be provided with a copy to read before the note was to be introduced through Officer Mendenhall’s testimony. When the note was admitted during Officer Mendenhall’s testimony, the court inquired and counsel responded that there was no objection.
The court’s ruling on best evidence was not adverse. Appellate counsel asserts that the court correctly ruled that appellant had notice of the contents of the note. In any event, appellant waived any further objection as to the adequacy of notice concerning the note when he failed to renew his objection before the note was offered for admission into evidence. Where the court’s earlier ruling is preliminary, defense counsel must object when the evidence is offered for admission in order to preserve an issue for appeal. See Ward v. State, 370 Ark. 398, 260 S.W.3d 292 (2007); Baker v. State, 334 Ark. 330, 974 S.W.2d 474 (1998).
VI. Objection to Rebuttal Testimony by Bonnie Balasco
The defense called Bonnie Balas-co, Heather’s stepmother, to testify concerning appellant’s knowledge of the affair, how the affair changed appellant’s behavior, and how she became afraid of his unpredictable behavior. During the State’s cross-examination, defense counsel objected to questions to Ms. Balasco about appellant’s previous marriages. The court sustained the objection, ruling that the questions went beyond the scope of the direct examination but indicating that the State could recall her as a witness.
After the defense rested, the State did call Ms. Balasco for rebuttal testimony concerning what appellant told her about his second marriage and that the marriage had ended because his second wife had an affair. The defense objected to the State’s calling Bonnie 11flBaIasco as a rebuttal witness on the basis that she could not rebut her own testimony. The trial court overruled the defense objection.
Appellate counsel points out that trial counsel did not object to the comments about rebuttal that followed the court’s ruling during Ms. Balasco’s cross-examination. But, whether the comments were a ruling that called for an objection or not, Ms. Balasco was a proper rebuttal witness, and the objection did not have merit.
A rebuttal witness is proper if the evidence to be elicited is responsive to new matters raised by the defense; that evidence may overlap with the evidence presented in the case-in-chief. See Cluck v. State, 365 Ark. 166, 226 S.W.3d 780 (2006). Here, appellant raised the issue in his case that he had become so emotional as a result of his wife’s affair that he had “lost it.” In response to that evidence, the State could present evidence that appellant had previously had a similar experience, but had not lost control and committed an act of violence. The fact that the trial court might have used its discretion under Rule 611 to allow the testimony during cross-examination of the witness during the defense case does not disqualify the witness from testifying as a rebuttal wit ness. The issue in determining whether a rebuttal witness is proper concerns whether the evidence to be presented is proper, not whether the witness has previously testified.
VII. Objection to Question Concerning Appellant’s Prior Marriages
Trial counsel objected again to Ms. Ba-lasco’s testimony about appellant’s previous marriages on rebuttal on the basis that the testimony was not relevant because the marriages were remote in time and had nothing to do with the situation that preceded the shooting. |nAs discussed, the evidence was relevant, and the trial court did not abuse its discretion in overruling the objection.
VIII. State’s Objection to Closing Argument
The State objected when the defense asked the jury during closing remarks to put itself in appellant’s position in considering how the shooting occurred. The State based its objection on the “golden rule.” The trial court instructed the jury that it was not to place itself in the position of the defendant, but repeated the portion of the manslaughter instruction that called for the jury to determine the reasonableness of the excuse from the viewpoint of a person in the defendant’s situation, under the circumstances as he believed them to be. The defense indicated that it was satisfied with the admonishment.
We note that a “golden rule” argument is one where the jury is implored to put themselves in the position of the victim. Lee v. State, 340 Ark. 504, 11 S.W.3d 553 (2000). Even if the objection was incorrectly sustained, as appellate counsel points out, the defense indicated its satisfaction with the admonishment given. Appellant could not mount a meritorious appeal concerning an admonishment to which he agreed. See Holloway, 363 Ark. at 269, 213 S.W.3d at 643.
Pro Se Points for Reversal
Appellant submitted ten pro se points for reversal. Briefly, those points are summarized as follows: (1) trial counsel should have requested a change of venue and did not; (2) the jury panel was selected only from a portion of the county; (3) the motion in limine should not have been allowed; (4) the video that was admitted had been tampered with; (5) the 112handwritten note had been written months earlier, and appellant had requested that counsel ask Heather if she had seen it; (6) one of the jurors knew two witnesses and the victim; (7) some of the statements made by the prosecution were inconsistent with the evidence; (8) parts of Heather’s testimony were inconsistent with her previous statement; (9) appellant has been a law-abiding, tax-paying citizen for sixty years; (10) it was a mistake that, on his attorney’s advice, appellant did not testify.
The first, fifth, and last points assert ineffective assistance of counsel, and a number of the other points may be construed to some extent as an attempt to assert the same. A claim of ineffective assistance of counsel is appropriate on direct appeal only when it is raised before the trial court and the facts and circumstances surrounding the claim have been fully developed at the trial level. Rounsaville v. State, 374 Ark. 356, 288 S.W.3d 213 (2008). No claim of ineffective assistance was raised below. Those issues do not present meritorious points for appeal.
With the exception of the third point, which was addressed above because it was discussed in counsel’s brief, none of the remaining points was preserved for appeal because the issues were not raised in the trial court. Issues are waived that are raised for the first time on appeal, and we do not address any argument, including a constitutional argument, that was not raised below. Taylor v. State, 2010 Ark. 372, 372 S.W.3d 769. Moreover, as the State notes in its response, appellant provides no citation to authority or persuasive argument to support his arguments. This court need not address an argument unsupported by citation to authority or convincing argument. Id.
113Compliance with Rule k-3(i)
In compliance with Rule 4 — B(i), the State has provided a supplemental abstract and discussed one further point, asserting that while the point potentially may appear to involve prejudicial error, it does not. This additional point concerns the court’s response to a note from the jury during deliberations that inquired as to the defendant’s age and asked to see the video from the store parking lot again. The court wrote a note to the jurors stating, “The evidence has been submitted to you. You shall refer to the exhibits and testimony in relation to your question. The video will be replayed to you shortly.” The jury was brought back into the court room, which was then cleared of everyone else with the exception of the court reporter, who was to push the button to play the dvd for the jury. The defense agreed that the procedure was satisfactory.
In this case, the trial court brought the jury back into the courtroom and gave a written response through a note that was included in the record. Because the jury was returned to the courtroom and the communication with the jury was documented in the record, there was compliance with Arkansas Code Annotated § 16-89-125 (Repl.2005). See Davlin v. State, 313 Ark. 218, 853 S.W.2d 882 (1993). There was no prejudice to appellant in the replaying of the requested video clip for the jury. See Jackson v. State, 2009 Ark. 336, 321 S.W.3d 260. Moreover, counsel agreed to the procedure for handling the jury’s request and waived any failure to strictly adhere to the requirements of the statute. Davlin, 313 Ark. at 221, 853 S.W.2d at 884-85.
[ ^Finally, the record in this case has been examined in compliance with Rule 4-3(i) for objections, motions, and requests made by either party that were decided adversely to appellant. See Strong, 372 Ark. at 419, 277 S.W.3d at 170-71 (citing Doss v. State, 351 Ark. 667, 97 S.W.3d 413 (2003)). Some rulings, as indicated in this opinion, were not discussed by counsel, but we find no prejudicial error and affirm. Counsel’s motion to withdraw is granted.
Affirmed; motion granted.
. Counsel's motion incorrectly referenced Arkansas Supreme Court Rule 4-8 (2010). Although the procedure is similar, that rule is only applicable in involuntary-commitment cases.
. Counsel did not include as adverse rulings the court’s response to two objections made by the State during cross-examination of Heather's son, Michael James. The objections are included in the abstract and could arguably be construed as adverse. We do not order rebriefing, however, because the circumstances here are unlike those in Sartin v. State, 2010 Ark. 16, 362 S.W.3d 877 (per curiam). Here, the abstract and the broader scope of our required review of the record are sufficient to confirm that the rulings were not prejudicial, even if adverse. This court will not reverse an evidentiary ruling absent a showing of prejudice. McKeever v. State, 367 Ark. 374, 240 S.W.3d 583 (2006). In the first ruling, the trial court required a question directed toward the reason Michael stopped visiting the defendant in jail to be reworded. Counsel was able to obtain the information he sought with the reworded question. The court sustained the second objection after counsel had withdrawn the question.
. Appellate counsel’s argument points to only two motions for directed verdict. The abstract and record, however, show that trial counsel made a third motion, on the same basis as the previous two motions, after the State presented rebuttal testimony. The argument was preserved for appeal in that trial counsel renewed the motion at the close of evidence. See Christian v. State, 318 Ark. 813, 889 S.W.2d 717 (1994); see also Davis v. State, 2009 Ark. 478, 348 S.W.3d 553.
. Although trial counsel referenced testimony from the psychologist who examined appellant in his argument to the trial court, there was no evidence presented concerning a defense of insanity. See Davis v. State, 368 Ark. 401, 246 S.W.3d 862 (2007) (expert-witness testimony that was contradictory concerning the defendant’s mental defect and a diagnosis of dissociative disorder was an issue for the jury to resolve).
. The State also made an oral motion in li-mine before the defense called Bonnie Balas-co that was to exclude hearsay and opinion testimony. There was a series of objections during Ms. Balasco's testimony relating to the affair, particularly as to when it began, during both direct and cross-examination. Appellate counsel has provided no discussion of those rulings, but we note that in each case, to the extent that the court provided a ruling, trial counsel indicated agreement with any adverse ruling.
. Both cases cite the rule prior to the addition of subsection (f) and relettering of the relevant provision from subsection (h) to (i). | [
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KAREN R. BAKER, Judge.
| )AppelIant Ronald Tadlock appeals from an order terminating his parental rights in T.T. (born August 12, 2007), and an order adjudicating another child, C.T. (born December 4, 2008), dependent-neglected. We affirm both orders.
On August 12, 2007, Michelle Hrdlicka gave birth to Padlock’s daughter, T.T., in a hospital bathroom. Hrdlicka tested positive for drugs, and the Arkansas Depart ment of Human Services (DHS) placed a seventy-two-hour hold on T.T. and another of Hrdlicka’s children, six-year-old S.M. DHS obtained emergency custody of the children on August 16, 2007.
On August 22, 2007, Ronald Tadlock tested positive for cocaine. That same day, the ^circuit court found probable cause for the children’s removal from the home and a continuation of DHS custody. The court directed Tadlock and Hrdlicka to follow court orders and the DHS case plan; to cooperate with DHS; to remain clean and sober; to submit to random drug testing; to attend NA/AA meetings and obtain sponsors; to submit to drug assessments and follow recommendations; to attend individual and family counseling and follow recommendations; to view “The Clock Is Ticking” video; and to contact the DHS caseworker and CASA worker weekly. The couple were allowed restricted, supervised visitation upon providing three clean drug screens.
On September 4, 2007, Tadlock again tested positive for cocaine. Thereafter, the court adjudicated T.T. and S.M. dependent-neglected. The court established a goal of reunification; restated its previous orders to the parents; adopted a mediation agreement in which Tadlock and Hrdlicka promised to, among other things, attend NA/AA meetings three times a week and obtain sponsors; and declared that the parents should attend court hearings, maintain stable housing and employment, and maintain a clean, safe, and healthy living environment.
A review order entered on December 12, 2007, continued the goal of reunification despite finding that Tadlock had not complied with the case plan and court orders. A second review order, entered on March 12, 2008, found that Tadlock and Hrdlicka had partially complied with the case plan and court orders. A permanency-planning order entered on July 28, 2008, made similar findings. That order also granted Tad-lock and Hrdlicka weekend visitation as long as they remained clean and sober and maintained suitable housing.
|sOn August 29, 2008, approximately one year after the children were removed from the home, the court granted Tadlock and Hrdlicka an eight-day home visit with T.T. and S.M. On October 24, 2008, the court allowed Tadlock and Hrdlicka a sixty-day trial visit after finding that they were in compliance with the case plan and court orders; that they had made significant, measurable progress toward achieving the case-plan goals; and that they had worked diligently toward reunification. The court stated that, if the sixty-day trial visit proved successful, T.T. and S.M. could return home. The trial visit was successful, and the court returned the children to Tadlock and Hrdlicka on December 22, 2008.
Despite the successful trial visit, the children remained with Tadlock and Hrdlicka only a short time. On January 7, 2009, DHS placed a seventy-two-hour hold on T.T. and S.M. and sought emergency custody of them after Hrdlicka tested positive for cocaine during a DHS home visit. Tadlock tested negative for drugs, as he had on all screens since September 4, 2007. DHS also placed a hold on one-month-old C.T., who had been born to Tadlock and Hrdlicka on December 4, 2008. On January 9, 2009, DHS filed a dependency-neglect petition seeking emergency custody ofC.T.
Within days, the circuit court placed all three children in DHS custody and found probable cause for their removal from the home. DHS subsequently filed a motion to terminate reunification services and to terminate Tadlock’s and Hrdlicka’s parental rights to T.T. and S.M. The court scheduled an adjudication/termination/no-reunification hearing for March 2009. Additionally, the court suspended parental visitation and ordered Tadlock and 14Hrdlicka to attend anger-management classes, based on a counselor’s report that the couple’s “continuous verbal arguments” during visits caused S.M. and T.T. extreme emotional distress.
The evidence at the hearing demonstrated that Tadlock had obeyed court orders by acquiring stable housing, employment, and transportation; by completing parenting classes; and by remaining drug free for approximately a year and a half. However, caseworker Brandi Cannan testified that Tadlock did not comply with the court’s order to attend NA/AA meetings regularly. She also testified that DHS was not certain that Tadlock could take care of the children without the many services that had been in place. According to Cannan, DHS was providing, at the time of the children’s removal in January 2009, daycare vouchers, transportation, utility assistance, food vouchers, counseling services, and twice-weekly visits from a social-service aid. Cannan additionally testified that Tadlock should have known that Hrdlicka had relapsed into drug use, and she felt uncertain that Tadlock could ensure that Hrdlicka was no longer in the home and using drugs. According to Can-nan, Hrdlicka and Tadlock still had a relationship, and Hrdlicka came to the home to eat, visit, and do laundry. Cannan stated further that Tadlock’s job at McDonald’s would not generate sufficient income to care for the family. However, she admitted that she had not gone over Tadlock’s expenses with him. Cannan further stated that Tadlock had a “violent anger.” She said that he “stormed out of the courtroom” at a prior hearing and that, during a DHS staffing, he remarked, “I don’t care no more, you can take the baby.”
Tamara Stricklin, a DHS social-service aid, testified that Tadlock had a “lackadaisical” |sattitude about the problems in the home. Stricklin noted inappropriate meal preparation and housekeeping (including a severe roach problem); people going in and out of the house, using the telephone according to Tadlock; and one occasion where she “smelled what I thought was marijuana.” Stricklin could not remember if Tadlock was present when she detected the odor. Stricklin also said that she observed a younger couple in the home one morning and that the young man was sitting on the sofa without a shirt on. Strick-lin additionally said that Tadlock became very angry with Hrdlicka when he learned that she had tested positive for cocaine and that he yelled at Hrdlicka and made verbal threats; however, according to Stricklin, Tadlock should have known that Hrdlicka was using drugs based on her behavior and demeanor. Stricklin also testified that Tadlock “just doesn’t have control of himself emotionally.” She said that, during one visit with S.M., Tadlock terrified the child by dragging her into a room and demanding that Hrdlicka tell S.M. “what she [Hrdlicka] had done to cause all of it.” Stricklin said that when she tried to discuss the incident with Tad-lock, he became “belligerent” and “defiant,” telling her that she did not need to tell him what to do. Finally, Stricklin expressed her opinion that the children were not getting enough to eat. She said that she once picked up S.M. from a visitation at 10:15 (presumably in the morning) and the child had not eaten breakfast.
CASA worker Ruth Weatherwax testified that she found Tadlock’s home appropriate, that she never smelled marijuana, and that she had no suspicion of drug use (though she had not been to the home since mid-December 2008). She also said that Tadlock cared for the | f,children properly and that they seemed clean and reasonably fed. However, she agreed with DHS’s recommendation to terminate parental rights, citing the great number and frequency of services provided to the couple and their failure to take responsibility to move forward. Weatherwax also observed that Tadlock had not attended NA/AA meetings as ordered.
CASA Supervisor Mary Jepson likewise testified that she had seen no proof of Tadlock’s attendance at NA/AA meetings. She further said that Tadlock had once become angry and “stormed out” of a staffing-review meeting. She also stated that Tadlock said, “Come on Michelle, let’s go do drugs, they’re going to take our kids.” However, Jepson said that Tadlock apologized minutes later. Jepson also testified that Tadlock had “done a good job”; that there was a lot of sympathy for him; that he had arranged to have someone look after the children; and that no one had a factual basis to conclude that he knew of Hrdlicka’s drug use. However, Jepson testified that both Tadlock and Hrdlicka were “emotionally unstable” and “very dependent on each other.” She stated that Tadlock indicated that he would keep Hrdlicka out of the home but that Hrdlicka had been in the home regularly during January and February 2009. According to Jepson, she had no separate address for Hrdlicka that could be verified.
Foster mother Barbara Richie testified that she was worried about T.T.’s new eating habits after the child came back into her care in January 2009. Richie said that T.T. would grab her plate and her drink and hold them closely, would cry for more food, and would eat more than she normally did. Richie was concerned that T.T. had not been getting enough |7food. Richie also noted that on some occasions when she picked up S.M. at 5:00 p.m. after a visitation, the child was hungry and would tell her that she had only eaten breakfast that day. Richie stated further that Tadlock should have known that Hrdlicka was using drugs, given that she herself could tell that something was wrong and that Hrdlicka’s behavior was different.
Kristen McGrew, a therapist for S.M., testified that she had no evidence that Tadlock had done anything inappropriate since T.T. had returned home in December 2008. However, McGrew recommended that visitation be stopped in February 2009 due to Tadlock and Hrdlicka’s arguing in front of the children. McGrew described the arguing as “detrimental.” Family Service Worker Kerri Worley testified that, while Hrdlicka had an extensive history with DHS and that four other children of hers were no longer in her care, Tadlock had no prior history with DHS. Adoption specialist Emily Burns testified that T.T. was. adoptable.
Ronald Tadlock testified that he did not suspect Hrdlicka of relapsing into drug use in January 2009. He acknowledged that, at the January 13, 2009 probable-cause hearing, he indicated that Hrdlicka was no longer living with him. However, he admitted that Hrdlicka had since been to his house to eat or do laundry. He also admitted that Hrdlicka had signed for a package at his home on January 28, 2009, and that Hrdlicka had been staying with him since March 2, 2009 (approximately two weeks before the hearing) because he had injured his ribs. Tadlock also testified that he had not allowed questionable people into his home. He explained that the young couple that Tamara Stricklin observed there one morning were on |sthe premises to take a shower because their water had been disconnected. Tadlock also explained that the smell of marijuana detected by Stricklin could have been coming from his neighbor’s clothes. However, he said that the neighbor was not allowed in the house any longer. The court observed on the record that Tadlock was sobbing during most of his testimony.
Following the hearing, the circuit court entered an order that terminated Tad-lock’s (and Hrdlicka’s) parental rights in T.T. and S.M. The court found that DHS had an appropriate permanency plan for T.T.; that T.T. was likely to be adopted; that there was potential harm in returning T.T. to Tadlock; and that the following grounds for termination had been proved: (1) T.T. had been adjudicated dependent-neglected and continued out of the home for twelve months and that, despite DHS’s meaningful efforts, the conditions that caused removal had not been remedied; (2) T.T. had been subject to neglect or abuse that could endanger her life, specifically, the mother’s drug use; (3) other factors or issues arose after the original petition had been filed and that the parents manifested an incapacity or indifference to remedy those factors or issues; (4) the parents had subjected T.T. to aggravated circumstances. The court also entered an order that adjudicated C.T. dependent-neglected. The court found that the mother had relapsed into drug use and that Tadlock “knew or reasonably should have known that the mother was using illegal substances and failed to protect” C.T. Tadlock appeals from both orders, arguing that the evidence was insufficient to warrant termination of his parental rights to T.T. or to adjudicate C.T. depen-
I. Termination Decision
Termination of parental rights is an extreme remedy and in derogation of the natural rights of parents. Meriweather v. Ark. Dep’t of Health and Human Sens., 98 Ark. App. 328, 255 S.W.3d 505 (2007). DHS must prove by clear and convincing evidence that termination is in the child’s best interest and that at least one statutory ground for termination exists. Ark.Code Ann. § 9-27-341(b)(3)(A) & (B) (Supp.2009). Clear and convincing evidence is that degree of proof that will produce in the fact-finder a firm conviction as to the allegation sought to be established. Meriweather, 98 Ark. App. 328, 255 S.W.3d 505. When the burden of proving a disputed fact is by clear and convincing evidence, the appellate inquiry is whether the trial court’s finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id. We review termination-of-parental-rights cases de novo. Id.
The gist of Tadlock’s argument on appeal is that, while Ms. Hrdlicka was proven to be an unfit parent, he was not. He cites, among other things, his stable, long-term employment; his testing negative on all drug screens after September 2007; and his compliance with the case plan and court orders. According to Tad-lock, these accomplishments, along with his lack of fault in Ms. Hrdlicka’s drug relapse, demonstrate that the circuit court clearly erred in finding potential harm in returning T.T. to him and in |10finding grounds for termination. We disagree.
In conducting its best-interest analysis, the court must consider the potential harm in returning the child to the parent. Ark.Code Arm. § 9-27-841(b)(3)(A)(ii). This potential-harm inquiry is but one of the many factors that a court may consider, and the focus is on the ‘potential harm to the health and safety of a child that might result from continued contact with the parent. Dowdy v. Ark. Dep’t of Human Servs., 2009 Ark. App. 180, 314 S.W.3d 722. The court is not required to find that actual harm would result or to affirmatively identify a potential harm. Id. Furthermore, the potential-harm analysis should be conducted in broad terms. Id.
Given this authority, we cannot say that the circuit court clearly erred in finding that termination was in T.T.’s best interest, based on the potential harm in returning her to Tadlock. Foremost, we note Tadlock’s inability to sever ties with Hrdlicka, a person with a long-term, unresolved drug problem so severe that she tested positive for drugs after giving birth to T.T. and tested positive only a few days after regaining custody of her young children, despite receiving drug treatment. Our courts have affirmed termination cases in which a parent continued to have contact with someone who had harmed the children through abuse or neglect. See generally Trout v. Dep’t of Human Seros., 359 Ark. 283, 197 S.W.3d 486 (2004); Sparkman v. Ark. Dep’t of Human Servs., 96 Ark.App. 363, 242 S.W.3d 282 (2006); Wright v. Ark. Dep’t of Human Servs., 83 Ark. App. 1, 115 S.W.3d 332 (2003). 11 Additionally, DHS presented evidence of Tadlock’s inability to control his anger, his impulses, and his emotions. Witnesses testified that Tadlock had a violent anger; that he was out of control; that he made rash comments about relinquishing custody of the children or resuming drug use; that he had stormed out of the courtroom and DHS staffings; that he had dragged S.M. into a room during visitation and ordered Hrdlicka to explain to the child Hrdlicka’s fault in the family’s situation; that visitation ceased because of this incident; and that he became belligerent with a DHS worker. The presence of anger-management issues has been cited as a factor in upholding a termination decision. Belue v. Ark. Dep’t of Human Seros., 104 Ark. App. 139, 289 S.W.3d 500 (2008).
Further, Tadlock did not regularly attend NA/AA meetings as ordered by the court and as he had agreed to in mediation. Though he had been drug-free for a year and a half, the fact remains that he disregarded this aspect of his recovery. Moreover, witnesses expressed concern that the children in the household were not properly fed. Tamara Stricklin testified about an occasion where S.M. had not eaten breakfast by 10:15 a.m., and foster mother Barbara Richie testified to picking up S.M. from visitation at 5:00 p.m. and the child having had only one meal. Further, T.T.’s medical evaluation stated that she may have been deprived of adequate food and noted that she had been observed saving food to eat later.
The above factors demonstrate the potential for dangerous and unhealthy circumstances in returning T.T. to Tadlock, such as exposure to emotional instability and anger, poor nutrition, and the continued exposure to the drug addiction of the mother who he admitted 112was unfit as a parent. They also support a finding of grounds for termination, namely that other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that returning the child to parental custody is contrary to her health, safety, or welfare and that, despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parent’s circumstances that prevent return of the juvenile to parental custody. Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(<x). We therefore affirm the termination order.
II. Dependency-Neglect Adjudication
Tadlock argues next that the circuit court erred in adjudicating C.T. dependent-neglected. The juvenile code requires proof by a preponderance of the evidence in dependency-neglect proceedings. Ark.Code Ann. § 9-27-825(h)(2)(B) (Supp.2009); Brewer v. Ark. Dep’t of Human Servs., 71 Ark. App. 364, 43 S.W.3d 196 (2001). We review the circuit court’s findings of fact de novo, and will not set them aside unless they are clearly erroneous. Brewer, supra.
A dependent-neglected juvenile is any juvenile who is at substantial risk of serious harm as a result of certain acts or omissions, including neglect or parental unfitness, to the juvenile, a sibling, or another juvenile. Ark.Code Ann. § 9-27-303(18)(A). “Neglect” includes a “failure or the irremediable inability to provide for the essential and necessary physical, mental, or emotional needs of the juvenile.” Ark.Code Ann. § 9-27-303(36)(A)(iv). | ^Tadlock concedes that Ms. Hrdlicka’s relapse into drug use may have constituted such neglect. However, he argues that there was no evidence that he neglected C.T.
We find no clear error. The juvenile code is not concerned, at the adjudication stage, with which parent committed the acts constituting dependency-neglect. Howell v. Ark Dep’t of Human Servs., 2009 Ark. App. 612, 2009 WL 3028987; Albright v. Ark. Dep’t of Human Servs., 97 Ark. App. 277, 248 S.W.3d 498 (2007). The finding of dependency-neglect is not directed at the parents; the question is whether the juvenile is dependent-neglected. See Albright, supra. Because of Ms. Hrdlicka’s relapse into drug use, C.T. was unquestionably dependent-neglected. The court therefore did not clearly err in its adjudication order.
Tadlock also contends that the circuit judge did not realize during the termination hearing that she was also conducting an adjudication hearing with regard to C.T. However, the hearing had just concluded when the judge recalled that dependency-neglect was also an issue, and she was in a position to make the adjudication decision based on the evidence she had just heard. Tadlock therefore cannot show that he was harmed by any confusion regarding the subject of the hearing.
Affirmed.
PITTMAN and KINARD, JJ., agree.
. S.M. was not Tadlock’s biological child. However, he acted in loco parentis to her and filed a petition to adopt her. This appeal does not concern any parental rights that Tadlock may have with regard to S.M.
. The court must also consider the likelihood that the child will be adopted. Ark.Code Ann. § 9-27-341 (b)(3)(A)(i). Tadlock does not contest the circuit court’s consideration of that factor. | [
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D.P. MARSHALL JR., Judge.
I, The circuit courts often condition probation or the suspended imposition of a sentence on restitution. Ark.Code Ann. § 5-4-205(f) (Supp.2009). When a defendant fails to pay and resists revocation by asserting an inability to pay, what amount and kind of evidence must the State offer to justify revocation?
I.
In 2004, Russell Hanna pleaded guilty to Class “C” felony nonsupport. Ark.Code Ann. § 5-26-401(a), (b)(2)(B) (Supp.2009). The circuit court placed Hanna on 10 years’ supervised probation and ordered him to make restitution of his $19,382.00 child-support arrearage. The court fixed the restitution payment in monthly installments of $163.00. This 1 ¡.obligation was on top of his existing weekly $53.00 child-support obligation. The State first petitioned to revoke Hanna’s probation in 2004, but this petition was dismissed at the probation officer’s request. In 2008, the State again petitioned to revoke.
The revocation hearing was short. The probation officer testified that Hanna currently owed around $32,000.00 in child support, and had made only one payment of $300.00 within the last year. The court admitted the 2004 guilty-plea agreement, conditions of probation, and payment order into evidence. They showed Hanna’s $163.00-a-month and $53.00-a-week obligations. The probation officer also testified that a petition to revoke Hanna’s probation had been filed “last year” due to nonpayment — this was either the 2004 petition or a 2007 petition that does not appear in the record. Finally, the probation officer acknowledged on cross-examination that Hanna was disabled.
Hanna also testified. He confirmed that he was disabled. He also said that his $637.00 monthly social security supplemental income was his only source of income. Hanna stated that he was and is unable to work. He also said that he had been disabled when he signed the plea agreement in 2004. He signed the agreement because “[w]ell, I just — I wasn’t able to — I wasn’t able to work, but I had — you know, I had to do what I could when I could.” On cross-examination, Hanna clarified that his wife had made the $300.00 payment. The State asked: “Do you have any change of circumstances that has happened in the last two years that has prevented you from making efforts to change that was not there in Two Thousand and Seven?” Hanna gave a nonresponsive answer: ■ “I’m just not able to work.”
¡;On this record, the circuit court granted the State’s petition. The court found that “the [Sjtate has met its burden of proof, and that the probation is hereby revoked.” A few weeks later, after a second hearing, the court suspended imposition of nine years’ sentence and sentenced Hanna to one year in prison. Hanna appeals.
II.
Two statutes, one general and one specific, frame Hanna’s appeal. Probation may be revoked “if a court finds by a preponderance of the evidence that the defendant has inexcusably failed to comply with a condition of his or her suspension or probation.” Ark.Code Ann. § 5-4-309(d) (Supp.2009). This is the general revocation statute. It applies whenever a defendant allegedly violates any condition of a probated or suspended sentence. E.g., Richardson v. State, 85 Ark.App. 347, 350-51, 157 S.W.3d 536, 538-39 (2004) (failure to surrender as ordered). In 1993, as a part of a comprehensive statute governing restitution, the General Assembly adopted restitution-specific revocation provisions. Act of 16 March 1993, No. 533, 1993 Ark. Acts 1493; Act of 16 March 1993, No. 553, 1993 Ark. Acts 1635. When restitution is ordered as a condition of probation, and the defendant has failed to pay, a court may revoke “if the defendant has not made a good faith effort to comply with the order.” Ark.Code Ann. § 5-4-205(f)(2). This statute lists the kinds of facts that will reveal the probationer’s good-faith effort or lack thereof. “In determining whether to revoke probation” for a failure to pay restitution, the court “shall consider” the defendant’s employment status, earning ability, financial resources, the willfulness of the failure to pay, and |4any other special circumstances that may have a bearing on the defendant’s ability to pay. Ark.Code Ann. § 5-4-205(f)(3)(A)-(E).
The leading precedent recognizes that both statutes apply in these cases. Jordan v. State, 327 Ark. 117, 122, 939 S.W.2d 255, 257 (1997). A good-faith effort to pay restitution is daylight to an inexcusable failure to pay’s dark. Indeed, before the General Assembly spoke with specificity in what is now § 5-4-205(f)(3) about some of the various facts bearing on good faith, the supreme court and this court were considering probationers’ particular economic circumstances, the quantity of their efforts to pay, and the quality of those efforts in deciding whether failures to pay restitution were inexcusable. E.g., Hoffman v. State, 289 Ark. 184, 189-90, 711 S.W.2d 151, 153-54 (1986) (standard of living, purchase of $17,000.00 car, and limited job search); Baldridge v. State, 31 Ark.App. 114,117-18, 789 S.W.2d 735, 737-38 (1990) (young probationer made some payments while supporting four dependents by doing all available manual labor). This inquiry reflects the “delicate balance between the acceptability, and indeed wisdom, of considering all relevant factors when determining an appropriate sentence for an individual and the impermissibility of imprisoning a defendant solely because of his lack of financial resources.” Jordan, 327 Ark. at 120, 939 S.W.2d at 256 (quoting Bearden v. Georgia, 461 U.S. 660, 661, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983)).
The State must prove by a preponderance of the evidence that the probation er inexcusably failed to comply with his payment obligation. Ark.Code Ann. § 5-4-309(d). Our cases recognize and apply a shifting burden here. “[0]nce the State has introduced [¡¡evidence of nonpayment, the burden of going forward does shift to the defendant to offer some reasonable excuse for his failure to pay.” Reese v: State, 26 Ark.App. 42, 44, 759 S.W.2d 576, 577 (1988). The State typically introduces a payment ledger or testimony demonstrating nonpayment. This kind of evidence shifts the burden of going forward, which is also known as the burden of production. Black’s Law Dictionary 209 (8th ed. 2004). But the State always retains the ultimate burden of proving that the probationer’s failure to pay was inexcusable. Ibid.; Thompson v. State, 2009 Ark. App. 620, at 2, 2009 WL 8158210; see also Black’s Law Dictionary 209 (8th ed. 2004) (distinguishing between the two components of the burden of proof: the burden of persuasion and the burden of production or going forward).
This shifting burden of production draws out the probationer’s reason for nonpayment. Reese, 26 Ark.App. at 44, 759 S.W.2d at 577. “[T]he probationer can[not] sit back and rely totally upon the trial court to make inquiry into his excuse for nonpayment.” Brown v. State, 10 Ark. App. 387, 389, 664 S.W.2d 507, 508 (1984). Nor must the State negate every possible excuse for nonpayment — an impossible task — in its case in chief. Reese, supra. The probationer must explain his failure to pay. If he asserts an inability to pay, then the State must carry its ultimate burden of demonstrating no good-faith effort by a preponderance of the evidence. The State must carry this burden of proof guided by the § 5-4-205(f)(2) & (3) factors. Jordan, 327 Ark. at 121-22, 939 S.W.2d at 257; Phillips v. State, 101 Ark.App. 190,192-93, 272 S.W.3d 123, 125 (2008). When the probationer asserts an inability to pay, the State may not stand on the fact of nonpayment alone. Jordan, 327 Ark. at 121-22, 939 |fiS.W.2d at 257; Phillips, 101 Ark. App. at 192-93, 272 S.W.3d at 125.
The State can carry its burden in many ways. It can undermine the probationer’s credibility, which is a matter for the circuit court to judge. Gossett v. State, 87 Ark.App. 317, 319-20, 191 S.W.3d 548, 549-50 (2004). The State can show a lack of effort. “[A] defendant’s failure to make bona fide efforts to seek employment or to borrow money to pay restitution may justify imprisonment.” Gossett, 87 Ark.App. at 319, 191 S.W.3d at 549; see also Thompson v. State, 2009 Ark. App. 620, at 5, 2009 WL 3153210. The State can show that the probationer is spending his money on something nonessential or illegal instead of paying restitution. E.g., Williams v. State, 2009 Ark. App. 554, at 4, 2009 WL 2778000.
This list is illustrative, not exhaustive. The restitution-specific revocation statute should guide the proof, both the probationer’s proof of a good-faith effort and the State’s responding proof showing no such effort. What is the probationer’s employment status and his earning ability? What are his financial resources? What is his payment history? What are all the relevant circumstances about the willfulness of his nonpayment and his ability to pay? Ark.Code Ann. § 5-4-205(f)(3). And just as it guides the proof, this statute must guide the circuit court’s findings in a purported inability-to-pay case. Jordan, 327 Ark. at 120-22, 939 S.W.2d at 256-57.
Some of our precedents emphasize the good-faith inquiry under § 5^4 — 205(f), while others consider the issue as a matter of inexcusability under § 5-4-309(d). Compare Gossett, 87 Ark.App. at 319-20, 191 S.W.3d at 549-50, with Thompson v. State, 2009 Ark. App. 620, [7at 2-5, 2009 WL 3153210. There is less to this distinction than meets the eye. Willfulness is a specified factor under the restitution-specific statute, and this factor overlaps with inexeusableness under the general revocation statute. We routinely consider the probationer’s employment record, as well as what he is spending his money on, no matter which statute we cite. To the extent there is any conflict between the statutes, of course the more specific provision controls. E.g., Wal-Mart Stores, Inc. v. D.A.N. Joint Venture III, L.P., 374 Ark. 489, 494, 288 S.W.3d 627, 632 (2008). But we see no conflict. As Jordan holds, we, and the circuit courts, must apply § 5-4-309(d)’s general “inexcusably failed to comply” standard as refined by § 5-4-205(f)’s restitution-specific factors in all failure-to-pay cases where the probationer asserts an inability to pay. Jordan, 327 Ark. at 120-22, 939 S.W.2d at 256-57.
III.
In this case, the State failed to prove an inexcusable failure to pay by a preponderance of the evidence. The State offered proof of nonpayment. Reese, supra. Hanna’s probation officer testified that Hanna had made only one payment in the last year. This evidence shifted the burden of going forward to Hanna. He had to produce evidence showing, in light of all material circumstances, a good-faith effort to pay. Ark.Code Ann. § 5-4-205(f)(2). Or as expressed in our older cases, he had to offer a reasonable excuse for his nonpayment. Baldridge, 31 Ark. App. at 116, 789 S.W.2d at 737.
He did. At the hearing, Hanna testified that he was disabled and unable to work. He said that he had only one source of income: his monthly SSI disability benefits. Hanna’s SSI |⅜⅛ not income for child-support purposes. Davis v. Office of Child Support Enforcement, 341 Ark. 349, 358, 20 S.W.3d 273, 278 (2000). Hanna made this argument at his sentencing hearing, but has abandoned it on appeal. We must therefore consider the circuit court’s decision in the case as if Hanna had $637.00 in monthly income. In addition, the State proved a monthly support/restitution obligation of almost $400.00, and one $300.00 payment made with the help of Hanna’s wife. The probation officer and Hanna agreed on another fact: Hanna was disabled. Finally, the State proved that Hanna had promised, in his plea agreement, to make restitution when his circumstances were about the same as they were at the time of revocation. The circuit court concluded, on this record, that the State had met its burden of proof.
We are left with the definite and firm conviction that the circuit court made a mistake. Foster v. State, 104 Ark.App. 108, 109-10, 289 S.W.3d 476, 477 (2008); Ridenhour v. State, 98 Ark.App. 116, 119-20, 250 S.W.3d 566, 569 (2007). Hanna’s failure to pay was undisputed. Hanna asserted an inability to pay based on disability. The State’s proof had confirmed his disability. There was thus no credibility judgment for the circuit court to make on this issue. Cf. Hodgson v. State, 2009 Ark.App. 691, at 2-3, 2009 WL 3384437. The State did show that, through his wife, Hanna was able to make one payment. Cf. Gossett, 87 Ark.App. at 319-20,191 S.W.3d at 549-50. The State offered no evidence, however, of Hanna’s other sources of income, his assets, or his expenses. Cf. Ark. Code Ann. § 5-4-205(f)(3). The State could have done so by cross-examining Hanna about these facts. Or the State could have offered |flproof about them in rebuttal. None of this was done. Taken as a whole, the preponderance of the evidence does not weigh in favor of a lack of good-faith effort or an inexcusable failure to pay. The State simply failed to prove, either directly or circumstantially, that Hanna’s failure to pay restitution was based on anything other than his inability to pay. That circumstance is an insufficient basis for revocation. Jordan, supra.
IY.
In almost every similar case where the appellate court has reversed, the court also remanded for more findings on the existing record. E.g., Bearden, 461 U.S. at 674, 103 S.Ct. 2064; Jordan, 327 Ark. at 123, 939 S.W.2d at 258; Phillips, 101 Ark.App. at 193, 272 S.W.3d at 125. But the records in those cases were full of facts, and the defect was in the trial court’s incomplete findings on those facts. This case is different. The defect here is in the proof, not in the findings on the proof. And the failure of the State’s proof requires that we reverse the revocation order and dismiss the petition. Wilcox v. State, 99 Ark. App. 220, 222, 258 S.W.3d 785, 787 (2007).
Hanna’s underlying obligation to support his child, as reflected in the original support order, remains intact. “A parent has a legal and moral duty to support and educate his child and to provide the necessities of life....” Lee v. Lee, 95 Ark. App. 69, 75, 233 S.W.3d 698, 703 (2006). Hanna’s obligation to make restitution for back child support, as agreed in the 2004 payment order, likewise remains undisturbed. Judgment and commitment order reversed and petition to revoke dismissed.
[mVAUGHT, C.J., and HART, KINARD, and BAKER, JJ., agree.
PITTMAN, GLADWIN, GLOVER, and HENRY, JJ., dissent. | [
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ROBERT J. GLADWIN, Judge.
| ;This is the second time that this case has been before us. The primary issue is whether a dismissal of a plaintiffs complaint for lack of proper venue becomes one with prejudice if the plaintiff appeals the venue issue and loses on appeal. The Faulkner County Circuit Court held that our affirmance of the earlier dismissal was with prejudice. We reverse and remand for further proceedings.
Appellant Tasha Orr, individually and as court-appointed personal representative of the estate of her infant son Melvin Wood-son, Jr., filed a complaint in the Lee County Circuit Court |2alleging that appellees Timothy Calicott, M.D., and Stephen Hudson, M.D. (collectively, the doctors), committed medical negligence and wrongful death. The doctors filed a motion to dismiss in which they alleged that venue was improper in Lee County because treatment was rendered in Faulkner County, and Woodson was a resident of Faulkner County. The Lee County Circuit Court initially denied the doctors’ motion. Orr then filed a second amended complaint, and the doctors filed another motion to dismiss for lack of venue, alleging that they had discovered additional information that contradicted Orr’s claim that venue was proper in Lee County. Following a second hearing, the Lee County Circuit Court granted the doctors’ motion to dismiss. We affirmed. Orr v. Calicott, No. CA05-594, 2006 WL 1165844 (Ark.App. May 3, 2006) (unpublished).
After the supreme court denied review, Orr refiled her complaint in Faulkner County. The doctors filed a motion to dismiss, alleging that Orr had waived her right to plead further by appealing the dismissal of her action in Lee County. The circuit court agreed with the doctors and dismissed Orr’s complaint with prejudice. This appeal followed.
Although listed as Orr’s second point on appeal, we first discuss her argument that the circuit court erred in dismissing her complaint with prejudice. The doctors relied on the supreme court’s decision in Servewell Plumbing, LLC v. Summit Contractors, Inc., 362 Ark. 598, 210 S.W.3d 101 (2005), where there is language that, when a plaintiff has the option to either plead further or appeal, the right to plead further is lost if the plaintiff appeals. Under the circumstances of this ease, we believe that the reliance on Servewell is misplaced because the Servewell court relied on cases decided under Ark. R. Civ. P. 12(b)(6) (2009) for the proposition |3that the dismissal was with prejudice. Moreover, the venue issue and the merits of the underlying claims in Servewell were so intertwined that there could not be a second appeal, making a dismissal with prejudice appropriate in that case. In the present case, the merits have yet to be considered.
The Servewell court’s reliance on cases decided under Rule 12(b)(6) was mistaken. A motion to dismiss under Rule 12(b)(6) permits a defendant to challenge not only the legal sufficiency of the complaint, that is, whether the substantive law affords relief, but also the factual sufficiency of the complaint, which is whether the plaintiff has alleged sufficient factual information to determine whether he is entitled to relief. Mann v. Orrell, 322 Ark. 701, 912 S.W.2d 1 (1995). When a complaint is dismissed under Ark. R. Civ. P. 12(b)(6) for factual insufficiency, the dismissal should be without prejudice. Sluder v. Steak & Ale of Little Rock, Inc., 368 Ark. 293, 245 S.W.3d 115 (2006). A plaintiff then has the election to either plead further or appeal. Id. If an appeal is taken, the option to plead further is waived in the event of an affirmance. Id. Thus, when a case is dismissed for factual insufficiency, a determination has been made that goes to the merits of the plaintiffs case. In other words, the plaintiff cannot recover because he has not stated sufficient facts that will allow him to recover under any recognized legal theory. See In re Poston, 318 Ark. 659, 887 S.W.2d 520 (1994).
On the other hand, a dismissal for improper venue does not go to the merits of whether the plaintiff can recover. All that has been determined is that the plaintiff brought suit in the wrong county. Under Arkansas Rule of Civil Procedure 41(b) (2009), an involuntary dismissal, such as Orr suffered in the Lee County case, is ordinarily without prejudice unless there has |4been a prior dismissal. Also a dismissal without prejudice is not an adjudication on the merits and will not bar a subsequent suit on the same cause of action. Middleton v. Lockhart, 344 Ark. 572, 48 S.W.3d 113 (2001); Magness v. McEntire, 305 Ark. 503, 808 S.W.2d 783 (1991).
Both the supreme court and this court have decided cases where the issue of improper venue has been appealed by the plaintiffs after dismissal of their complaint. Fraser Bros. v. Darragh Co., 316 Ark. 297, 871 S.W.2d 367 (1994); Parsons Dispatch, Inc. v. John J. Jerue Truck Broker, Inc., 89 Ark.App. 25, 199 S.W.3d 686 (2004). In neither case did the appellate court suggest that the appeal served to bar further action by the plaintiff in the proper venue. In fact, in Parsons Dispatch we expressly stated that the affirmance was without prejudice, language which was quoted with approval by the supreme court in Servewell.
We reject the doctors’ argument that the savings statute, Ark.Code Ann. § 16-56-125 (Repl.2005), cannot be used to save Orr’s action because it does not contain any tolling provisions. Our supreme court has consistently given a liberal interpretation to the savings statute. Lubin v. Crittenden Mem’l Hosp., 288 Ark. 370, 705 S.W.2d 872 (1986) (Lubin I); Young v. Garrett, 212 Ark. 693, 208 S.W.2d 189 (1948). Our case law is replete with instances where a plaintiff has had his or her complaint dismissed on procedural grounds not reaching the merits and, been allowed to appeal the dismissal and then refile after losing the appeal. See Lyons v. Forrest City Mach. Works, Inc., 301 Ark. 559, 785 S.W.2d 220 (1990) (Lyons I) (lack of proper service on the defendant); Forrest City Mach. Works, Inc. v. Lyons, 315 Ark. 173, 866 S.W.2d 372 (1993) (Lyons II); Carton v. Missouri Pac. R.R., 295 Ark. 126, 747 S.W.2d 93 (1988) (Carton I) (lack of federal subject-matter jurisdiction); Lubin I, supra (lack of federal subject-matter 1 -jurisdiction). If the savings statute is not tolled during the appeal of a dismissal on a procedural issue, the above-cited cases would not have been allowed to proceed because more than one year had elapsed between the dismissal of the action, the appeal, and the commencement of the second action.
Here the circuit court erroneously held that the earlier dismissal had been with prejudice once Orr appealed. Orr refiled her action in the proper venue, Faulkner County, within one year of the earlier dismissal of the Lee County action becoming final. See West v. G.D. Searle & Co., 317 Ark. 525, 879 S.W.2d 412 (1994). Therefore, we reverse and remand the case for further proceedings.
We now turn to Orr’s other points for reversal, none of which have merit. Those points spring from the manner in which the doctors sought to assert that the dismissal of Orr’s complaint should have been with prejudice. In their initial motion to dismiss, the doctors alleged only that Orr had waived the right to plead further by appealing from the dismissal in Lee County. The doctors later amended and supplemented their motion to dismiss to allege that, not only had Orr waived her right to plead further, but also that there was no longer any venue in which Orr’s complaint could be heard. Orr filed both a response to the motion and her own motion for default judgment, alleging that the doctors had failed to properly plead or defend because the “waiver” defense asserted by the doctors could only be asserted in their answer, not by motion. Orr later filed a motion seeking to strike the doctors’ mo tion to dismiss, as well as a motion seeking Rule 11 sanctions. The circuit court denied Orr’s various motions, and she now appeals those rulings.
kFirst, Orr has waived the right to have the doctors’ motions to dismiss struck because she responded to the doctors’ motions before seeking to have them struck. Arkansas Rule of Civil Procedure 12(f) (2009) allows the court to strike pleadings or other matters; however, if it is done on the motion of a party, as here, the motion to strike must be made before responding to the allegedly objectionable pleading. By filing a response to the initial motion to dismiss, Orr has waived her right to have the motion struck. Likewise, she has also waived her right to have the doctors’ amended motion stricken because she responded to the motion. Thus, the circuit court did not abuse its discretion by not granting Orr’s motion to strike.
Second, the circuit court likewise did not abuse its discretion in not finding that the doctors had violated Arkansas Rule of Civil Procedure 11 (2009) by raising their defense in the manner that they did. Ward v. Dapper Dan Cleaners & Laundry, Inc., 309 Ark. 192, 828 S.W.2d 883 (1992).
Orr is correct that, when a circuit court determines that a violation of Rule 11 has occurred because an attorney has signed pleadings in violation of the rule, the rule makes sanctions mandatory. Parker v. Perry, 355 Ark. 97, 131 S.W.3d 338 (2003). However, the circuit court has discretion in determining whether a violation of Rule 11 occurred. Bratton v. Gunn, 300 Ark. 140, 777 S.W.2d 219 (1989). Moreover, it is the moving party’s burden to adduce proof of the violation alleged in its motion for sanctions under Rule 11. Pomtree v. State Farm Mut. Auto. Ins. Co., 353 Ark. 657, 121 S.W.3d 147 (2003); Bratton, supra.
Rule 11 allows the court to sanction a party for filing a pleading for an improper purpose. Orr asserts that the doctors filed their motions to dismiss to manipulate the judicial ^system and to deny her a day in court. However, where the doctors reasonably, but mistakenly, relied on the supreme court’s decision in ServeweU, Orr has failed in her burden of showing that the motion to dismiss was filed for an improper purpose so as to warrant sanctions. See Jones v. Jones, 320 Ark. 449, 898 S.W.2d 23 (1995).
Finally, Orr’s contention that she was entitled to a default judgment because the doctors never properly answered her complaint is likewise without merit. A default judgment may be granted when a party against whom a judgment is sought fails to plead or otherwise defend. Ark. R. Civ. P. 55(a) (2009) (emphasis added). The entry of a default judgment is discretionary rather than mandatory. Collins v. Keller, 333 Ark. 238, 969 S.W.2d 621 (1998). Arkansas Rule of Civil Procedure 8(f) (2009) provides that pleadings shall be liberally construed so as to do substantial justice. This rule of liberal construction of looking to the substance of a pleading beyond its actual form has been applied to motions. Cornett v. Prather, 293 Ark. 108, 737 S.W.2d 159 (1987).
It cannot be seriously argued that the doctors did not defend against Orr’s complaint. Their motion to dismiss went to the merits of Orr’s claim, one of the hallmarks of a “responsive pleading.” See Nucor Corp. v. Kilman, 358 Ark. 107, 186 S.W.3d 720 (2004). The citation to Serve-well should have alerted Orr that the doctors were claiming that the earlier dismissal was with prejudice. This is made clear in paragraph 5 of the motion, which asserts, “Even if the dismissal is considered to be without prejudice.... ” Therefore, the circuit court did not abuse its discretion in denying Orr’s motion for a default judgment.
Affirmed in part; reversed and remanded in part.
VAUGHT, C.J., and MARSHALL, J., agree.
. Prior to submission, we attempted to certify this issue to the supreme court. However, the court declined to accept our certification.
. There are three other secondary issues raised. As discussed below, we affirm on those issues. | [
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JIM GUNTER, Justice.
¡[Appellant Gene Ludwig appeals from the judgment of the Pulaski County Circuit Court permanently enjoining him from creating a private airstrip on his residential property in a rural area of Pulaski County. We granted certification of this case from the court of appeals because it involves an issue of first impression and an issue of law needing clarification or development. Therefore, our jurisdiction is pursuant to Arkansas Supreme Court Rule 1 — 2(b)(1), (5).
On appeal, Ludwig asserts two points of error: (1) that the circuit court erred in 1 ¡.granting a jury trial at the request of appellees, and (2) that the circuit court erred in denying certain jury instructions proffered by appellant. We reverse and remand on the first point and affirm on the second.
Appellant, who owns land in Western Pulaski County near Pinnacle Mountain, built a private airstrip on his property for the purpose of flying his personal airplane. After the Little Rock Planning and Development Department (“the Department”) received notice of construction activity on appellant’s property, it sent a compliance officer to investigate. After discovering that appellant was constructing a private airstrip, the Department issued a notice to appellant that he was not in compliance with zoning ordinances and instructed him to remove the construction within ten days. Appellant appealed that notice to the Little Rock Board of Zoning Adjustment (“the Board”). During a hearing before the Board where appellant was allowed to present his position, the Board determined that appellant’s construction was not an “airport or landing field” as defined by zoning ordinances and that his construction was for “private recreational use.”
On September 27, 2007, appellees filed a Third Amended Complaint in Pulaski County Circuit Court appealing from the Board’s decision in appellant’s favor and stating a claim against appellant for private nuisance. Appellees attached the certified minutes of the Board’s decision to the complaint. Appellees requested a preliminary and a permanent injunction, declaratory judgment, and an award of costs and reasonable attorney’s fees. On ¡.^February 4, 2008, appellant filed a Motion for Trial to Be Heard by the Trial Judge Sitting as Finder of Fact and Law in which he maintained that appellees were not entitled to a jury trial. In an order filed February 12, 2008, the circuit court declared that appellant’s motion was untimely per the scheduling order. However, at a hearing on February 25, 2008, counsel for all parties argued the jury-trial issue. The court took the matter under advisement. The next day, the court again addressed the jury-trial issue at a hearing. Apparently, the circuit court handed down its ruling on the jury issue at this February 26 hearing; however, the court’s recording device and backup recording device were not functioning, and there is no record of that bench ruling. However, it is evident from the record that the court went forward with impaneling a jury.
The trial was conducted February 26-29, 2008. Along with other standard jury instructions, three special interrogatories were submitted to the jury. Answering those interrogatories, the jury found that appellant’s construction of the landing strip did not constitute an “airport or landing field” as defined by the Little Rock Municipal Code; that his proposed use of the landing strip was not for “private recreational use” as defined by the Little Rock Municipal Code; and that a preponderance of the evidence supported that his landing strip was a nuisance. The circuit court entered a judgment on March 6, 2008, stating that the jury “was seated to hear the legal causes of action and issues with the court sitting as the finder of fact concerning the equitable issues and relief.” The judgment also noted that over appellant’s objection, the court determined that Ark.Code Ann. § 14-56-425 allowed for a jury trial in this instance and that the nuisance cause of action was also triable to a jury [4even where the only relief requested was injunctive. Citing to the jury’s findings on the three interrogatories, the court permanently enjoined appellant from operating or permitting the operation of his landing strip for the purpose of air travel.
For his first point on appeal, appellant asserts that the circuit court erred in submitting all issues to a jury rather than the trial judge sitting as finder of fact and concluder of law. He argues that, because the only remedy sought by appellees on their claims was injunctive relief, they were not entitled to a jury trial. Appellant claims that a “jury cannot hear equitable causes of action.” In response, appellees contend that they were entitled to a jury trial on both the de novo appeal from the Board’s decision and the nuisance claim. Appellees claim that they had a right to a jury trial on the statutory appeal from the Board’s decision under Ark.Code Ann. § 14-56-425. They also maintain that they had a common-law right to a jury trial on the nuisance claim, or in the alternative, this court should adopt a “flexible approach” to determining whether the right to a jury trial exists following the passage of amendment 80 of the Arkansas Constitution.
Entitlement to a jury trial is a legal issue centered on constitutional interpretation and is reviewed de novo on appeal. See First Nat’l Bank of DeWitt v. Cruthis, 360 Ark. 528, 203 S.W.3d 88 (2005). The constitutional right to a jury trial is limited to those cases which were so triable at common law. Baptist Health v. Murphy, 2010 Ark. 358, 373 S.W.3d 269. This court has clearly stated that article 2, section 7 of the Arkansas Constitution does not assure the right to a jury trial in all possible instances, but rather in those cases where the right to a jury trial existed “when our constitution was framed.” Cruthis, 360 Ark. at 534, 203 S.W.3d at 92 (quoting Jones v. Reed, 267 Ark. 237, 590 S.W.2d 6 (1979)). Furthermore, the right to a jury does not apply to new rights created by the legislature since the adoption of the constitution. Id. at 535, 203 S.W.3d at 92. However, where a cause of action did not exist at common law, but is entirely a creature of statute, it exists in the manner and form prescribed by the statute which created it. St. Paul Mercury Ins. Co. v. Cir. Ct. of Craighead Cnty., 348 Ark. 197, 73 S.W.3d 584 (2002).
Appellees claim that they are entitled to a jury trial on the de novo appeal of the Board’s decision pursuant to the plain language of Ark.Code Ann. § 14-56-425 (Repl.1998), which provides that,
[i]n addition to any remedy provided by law, appeals from final action taken by the administrative and quasi-judicial agencies concerned in the administration of this subchapter may be taken to the circuit court of the appropriate county where they shall be tried de novo according to the same procedure which applies to appeals in civil actions from decisions of inferior courts, including the right of trial by jury.
When reviewing issues of statutory interpretation, we are mindful that the first rule in considering the meaning and effect of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Cave City Nursing Home, Inc. v. Ark. Dep’t of Human Servs., 351 Ark. 13, 89 S.W.3d 884 (2002). When the language of a statute is plain and unambiguous, there is no need to resort to rules of statutory construction. Id. A statute is ambiguous only where it is open to two or more constructions, or where it is of such obscure or doubtful meaning that reasonable minds might disagree or |fibe uncertain as to its meaning. Id. When a statute is clear, however, it is given its plain meaning, and this court will not search for legislative intent; rather, that intent must be gathered from the plain meaning of the language. Id. This court is hesitant to interpret a legislative act in a manner contrary to its express language, unless it is clear that a drafting error or omission has circumvented legislative intent. Id.
Here, the plain language of § 14-56-425 says that appeals taken from final actions of administrative agencies are appealed to the circuit court and should be tried de novo pursuant to normal procedures, including the right to a jury trial. The language of the statute is not ambiguous; therefore, 'it is not necessary for this court to resort to identifying legislative intent. The statute is exclusive to appeals from administrative or quasi-judicial zoning agencies; it involves no other types of actions. There was no right to a jury trial at common law for these types of cases because these agencies did not exist at common law and are creatures of statute. In drafting the statute, the legislature specifically and clearly intended the right to a jury trial to attach to these types of claims. Therefore, because the plain language of the statute confers a jury trial in these types of appeals to circuit court, it was not error for the circuit court to submit the fact issues regarding the statutory appeal to the jury.
Appellant also argues that appellees were not entitled to a jury trial on the nuisance claim because the only relief requested was equitable — an injunction. Ap-pellees, however, maintain that after the adoption of amendment 80 in November 2000, which merged courts of equity and law, this court should take a “flexible approach” to a party’s entitlement to a jury trial. The flexible approach considers three factors when determining whether the right |7to a jury attaches: (1) whether the cause of action was traditionally legal or equitable at common law, (2) whether the remedy sought is legal or equitable, and (3) the practical abilities and limitations of the jury as a fact-finder in complex litigation. See Ross v. Bernhard, 396 U.S. 531, 90 S.Ct. 733, 24 L.Ed.2d 729 (1970). In other words, appellees assert that when a case involves both legal and equitable claims with common questions of fact, the circuit court should try those questions to the jury and reserve the determination of equitable relief to itself. See David New-bern & John Watkins, Arkansas Practice Series: Civil Practice & Procedure § 29:3 (4th ed.).
A private nuisance is conduct on land which disturbs the quiet use and enjoyment of nearby property, and if injury to nearby property is certain and substantial, an injunction may issue. Manitowoc Remanufacturing, Inc. v. Vocque, 307 Ark. 271, 819 S.W.2d 275 (1991). Other states have traditionally viewed the nuisance cause of action as a legal one that permits a trial by jury, even where only injunctive relief is being sought. See, e.g., Morgan Cnty. Concrete Co. v. Tanner, 374 So.2d 1344 (Ala.1979); May v. Brueshaber, 265 Ga. 889, 466 S.E.2d 196 (1995); Davis v. J.C. Nichols Co., 714 S.W.2d 679 (Mo.Ct. App.1986); Storey v. Cent. Hide & Rendering Co., 148 Tex. 509, 226 S.W.2d 615 (1950). However, Arkansas has routinely treated private nuisance cases where the complaining party requested equitable relief as cases to be tried to a chancellor prior to amendment 80. See, e.g., Vocque, supra; Milligan v. Gen. Oil Co., 293 Ark. 401, 738 S.W.2d 404 (1987); Green v. Smith, 231 Ark. 94, 328 S.W.2d 357 (1959); Gus Blass Dry Goods Co. v. Reinman & Wolfort, 102 Ark. 287, 143 S.W. 1087 (1912); Harvey v. De Woody, 18 Ark. 252 (1856). “Courts of chancery exercise jurisdiction ... as to ... private nuisances, by restraining persons from setting them up, by inhibiting their continuance, or compelling |stheir abatement.” Harvey, 18 Ark. at 258.
In Cruthis, we addressed jurisdictional issues following amendment 80’s passage and the merging of courts of equity and courts of law.
As a consequence of Amendment 80, courts that were formerly chancery and circuit courts are now referred to as circuit courts. Because Amendment 80 states that circuit courts assume the jurisdiction of chancery courts, circuit courts simply have added to their already existing jurisdiction as a court of law the equitable jurisdiction which chancery courts held prior to adoption of the Amendment. In other words, no new or expanded jurisdiction beyond that formerly existing in the chancery and circuit courts was created through Amendment 80. Rather, circuit court jurisdiction now includes all matters previously cognizable by circuit, chancery, probate, and juvenile court.
Prior to adoption of Amendment 80, a choice had to be made by a plaintiff of whether it was best to file suit in chancery or circuit court. The clean-up doctrine was used to allow a chancery court to decide law issues because under that longstanding rule, once a chancery court acquired jurisdiction for one purpose, it could decide all other issues. The doctrine reached the point in recent years that unless the chancery court had no tenable nexus to the claim, this court would consider the matter of whether the claim should have been heard in chancery to be one of propriety rather then one of subject-matter jurisdiction. Further, it was possible to sever claims at law to be tried in circuit court.
There is no longer a need to elect in which court to file a lawsuit. However, as already discussed, Amendment 80 did not alter the jurisdiction of law and equity. It only consolidated jurisdiction in the circuit courts. Therefore, matters that could be submitted to a jury for decision and the matters that must be decided by the court remain unaltered.
Cruthis, 360 Ark. at 533-34, 203 S.W.3d at 91-92 (citations omitted). In Cruthis, we reversed the circuit court’s decision to submit an unjust enrichment claim to a jury where the plaintiff sought restitution and an equitable lien, which would have traditionally been handled by chancery court. Because amendment 80 did not alter the jurisdiction of law and equity, we |9held that the circuit judge should have ruled on the claim, not the jury.
We have a similar situation in the present case. The circuit judge submitted the issue of whether appellant’s airstrip was a nuisance to the jury, but reserved the issue of remedy for the court. Traditionally, the determination of whether something constitutes a private nuisance and whether to grant equitable relief was for a chancellor to decide in a court of equity. Relying on our holding in Cruthis, we reverse the circuit court’s decision to submit the private nuisance claim to a jury. As a claim that would normally lie in equity, the circuit court erred in submitting the nuisance issue to the jury.
For his final point on appeal, appellant focuses on perceived errors in the instructions to the jury. He argues that the three special interrogatories the appellees submitted to the jury were not clear and complete; that the circuit court erred in declining to submit appellant’s proffered instruction regarding strict construction of statutes; and that the circuit court erred in declining to submit appellant’s proffered instructions on the definitions of “accessory use” and “recreational.”
This court has held that a party is entitled to a jury instruction when it is a correct statement of the law and there is some basis in the evidence to support giving the instruction. Travis Lumber Co. v. Deichman, 2009 Ark. 299, 319 S.W.3d 239. However, we will not reverse a trial court’s refusal to give a proffered instruction unless there was an abuse of Indiscretion. Id.
It appears that appellant never attempted to proffer special interrogatories different from the three that were submitted to the jury. Therefore, his argument that the appellees failed to proffer clear, complete interrogatories is waived. Arkansas Rule of Civil Procedure 51 states that “[n]o party may assign as error the giving or the failure to give an instruction unless he objects thereto ..., and no party may assign as error the failure to instruct on any issue unless such party has submitted a proposed instruction on that issue.” See also Peoples Bank & Trust Co. v. Wallace, 290 Ark. 589, 721 S.W.2d 659 (1986) (holding that a party must submit a proposed instruction to preserve an objection for appeal).
Appellant did proffer two jury instructions at trial relating to the permitted uses for property zoned agricultural and forestry and the nuisance claim. Appellant’s argument on appeal seems to be limited to the instruction he proffered regarding zoning, in which he instructed the jury to determine if the airstrip was a “usual accessory use” to a single-family residence and instructed the jury that zoning ordinances must be strictly construed.
There was no basis in the record to support giving appellant’s proffered instruction regarding zoning. Appellees appealed the Board’s decision that appellant’s airstrip was not an “airport or landing field” and whether it could be considered “private recreational use.” Appellant never asked the Board to determine that his airstrip was an “accessory use,” and the Board did not make such a determination. That was simply not at issue on appeal from the Board’s decision, and appeals from the Board to the circuit court are to be tried de novo on the same issue that was pending before the Board. Ark. Power & Light Co. v. City of Little Rock, 243 Ark. 290, 420 S.W.2d 85 (1967); City of Little Rock v. Leawood, Prop. Owners’ Ass’n, 242 Ark. 451, 413 S.W.2d 877 (1967). Furthermore, appellant included in that proffered jury instruction the directive that zoning ordinances, in derogation to the common law, must be construed strictly. Appellant is confusing cases involving an appellate court’s review and rules of construction with instructions intended for a jury. Moreover, there was no allegation that the ordinances at issue here were ambiguous and in need of construction. We are not convinced that the circuit court abused its discretion in refusing to instruct the jury as to the proffers made by appellant.
Affirmed in part; reversed and remanded in part.
BROWN, J., concurs in part and dissents in part.
. Appellees are entities or persons who own property near appellant's proposed airstrip.
. We upheld the constitutionality of this statute’s provision allowing de novo appeal to circuit court in City of Fort Smith v. McCutchen, 372 Ark. 541, 279 S.W.3d 78 (2008).
. We also note that section 19(A)(2) of amendment 80, referring to the duties of circuit and chancery judges, states that "the respective jurisdictional responsibilities for matters legal, equitable or juvenile in nature as presently exercised by such Judges shall continue until changed pursuant to law.” | [
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ROBERT L. BROWN, Justice.
1,Appellant Kenneth Isom was convicted of capital murder, aggravated robbery, residential burglary, attempted capital murder, and two counts of rape after a jury trial in the Drew County Circuit Court on December 20, 2001. He was sentenced to death for capital murder and received additional sentences of life in prison for aggravated robbery and rape, sixty years for attempted capital murder, and forty years for residential burglary, with the sentences to run consecutively. His convictions and sentences were affirmed on direct appeal to this court. Isom v. State, 356 Ark. 156, 148 S.W.3d 257 (2004).
The facts surrounding the crimes were detailed in his direct appeal. Id. Dorothy Lawson, who was seventy-two at the time of the crime, testified that he she had been assisting Bill Burton, her deceased husband’s brother-in-law, following hip surgery. She was at his trailer on the night of April 2, 2001, when she heard someone knock on the door. She opened the door and a man pushed past her. She testified that she recognized the man as the |?same man she had been talking to at the neighbor’s residence approximately forty-five minutes earlier. The man walked over to ■Mr. Burton and- demanded money. He brandished a broken pair of scissors after Mr. Burton stated he had no money. Mr. Burton then gave the man $240, which did not satisfy him.
Isom next told Ms. Lawson to remove her pants and underwear. He raped her vaginally and anally and forced her to perform oral sex on. him. Afterwards, he forced her into a closet. Ms. Lawson then testified that she saw the man standing on Mr. Burton’s head. She tried to attack the man, and he took' her into the bedroom and knocked her unconscious. At some point she awoke, and the man was choking her. She testified that she could plainly see his face before she passed out again.
Later she awoke alone, bleeding and partially paralyzed. She and Mr. Burton were found after a neighbor entered the side door of the trailer and heard Ms. Lawson crying for help. Mr. Burton was already dead when police officers arrived. Ms. Lawson was transported to the hospital where a rape kit was performed. The doctor found a black hair in Ms. Lawson’s vaginal opening. Ms. Lawson gave a statement later that day describing her attacker as a dark-complected black male, who was five feet and seven inches tall to six feet tall with a stocky, muscular build. She further relayed the information that she had seen him several times at a neighbor’s home. In a subsequent photographic lineup, Ms. Lawson identified Isom. She told the police lieutenant who conducted the' lineup that she was “adamant” about the identification and made the identification “with no uncertainty.”
(■The black hair was analyzed by the Arkansas State Crime Lab. Evidence was then presented at trial that Isom had DNA bands not inconsistent with the hair recovered from the victim and the likelihood of finding another person with the same consistent DNA bands was one in fifty-seven million in the African American population. Isom was convicted and sentenced as already set out in this opinion, and this court affirmed.
After his convictions were affirmed, Isom filed a Rule 87 petition for postcon-viction relief. His relief was denied by the circuit court on September 18, 2008. He then appealed to this court. Before this court heard his Rule 37 petition, Isom filed a petition for writ of habeas corpus and a motion for DNA testing pursuant to Arkansas Code Annotated sections 16-112-201 to -208. He requested that this court hold briefing on his Rule 37 petition in abeyance until issues relating to his DNA testing petition were resolved, which this court declined to do. Isom’s Rule 37 appeal and his appeal from the denial of his petition for additional DNA testing are now both on appeal to this court.
Subsequent to his trial, Isom moved to re-test the black hair pursuant to Arkansas Code Annotated section 16-112-202, and the State consented to additional testing using a method called “Mini-STR.” The Mini-STR test did not exclude Isom as the contributor of the |4DNA profile developed from the black hair but established that the likelihood of finding another person with the same consistent DNA bands was 1 in 580,000 for a non-relative.
Isom then moved for additional DNA testing and requested specifically that the circuit court order the black hair taken from the crime scene compared to DNA from two men, Kevin Green and Jerry Avery. Isom states in his motion that he is related to both Green and Avery and that both men are suspects in this case. He further asserts that the DNA of each man is already in the Arkansas DNA database because of previous convictions.
To support his motion for additional testing, Isom provided an affidavit from his mother, Linda Isom, that Avery was his third cousin. In his Rule 37 proceeding, he also offered testimony from various people who averred that they spoke to Isom on the phone during the time the crime took place, that Avery was seen with a bandaged and bloodied hand the night of the crime, and that Isom was calm and unbloodied on the night of the crime. Isom claims that because the death penalty is imposed in his case, he has a constitutional right to have the DNA from the black hair compared to Avery’s DNA in the Arkansas DNA database. He ultimately asserts that the circuit court misinterpreted Arkansas Code Annotated sections 16-112-201 to -208 and clearly erred and abused its discretion in denying his motion for additional testing.
hi. Standard of Review
The parties offer different standards of review for this court to use in this case on appeal. Isom urges this court to use a de novo standard of review in its statutory interpretation and contends that the circuit court misinterpreted the Arkansas DNA testing statutes. The State argues, on the other hand, that the standard should be the same as that applied to the denial of postconviction relief, which is clear error.
The operable statute subject to our examination provides, “(b) [i]f the deoxyribo-nucleic acid (DNA) test results obtained under this subchapter are inconclusive, the court may order additional testing or deny further relief to the person who requested the testing.” Ark.Code Ann. § 16 — 112— 208(b) (Repl.2006).
Ordinarily, the clear error standard is the correct standard to apply in a postconviction case. In Misskelley v. State, 2010 Ark. 415, 2010 WL 4866985, this court said:
In appeals of postconviction proceedings, we will not reverse a trial court’s decision granting or denying postconviction relief unless it is clearly erroneous. Johnson v. State, 356 Ark. 534, 542, 157 S.W.3d 151, 158 (2004). A finding is clearly erroneous when, although there is evidence to support it, the appellate court after reviewing the entire evidence is left with the definite and firm conviction that a mistake has been committed. Id. The same standard of review applies when a trial court denies DNA testing under Arkansas Code Annotated sections 16-112-201 to -208. See, e.g., Davis v. State, 366 Ark. 401, 235 S.W.3d 902 (2006).
Id. at 4-5. Nevertheless, because the statute at issue in the instant case says that the court “may order” additional testing upon a finding of inconclusiveness, we conclude that the [(¡standard of abuse of discretion applies when the trial court denies relief under section 16-112-208(b).
II. Inconclusive Test Results
In the order denying further testing, the circuit court did not specifically address inconclusiveness but made the following findings:
2. That while the additional testing allowed by the Court herein, and conducted at the Defendant’s request by Bode Technologies, increased the probability somewhat than another unknown person[al] could have contributed the partial DNA profile, the testing still did not exclude Isom. The testimony at trial was that the chances of the partial profile being attributable to someone else was one in fifty-seven million. The Bode test was that the possibility was one in five-hundred-eighty-seven thousand for non-relatives.
4. The Court has previously found that the Defendant has not shown sufficient facts to conclude that Kevin Green was in any way remotely connected with the facts in this case. The Defendant has simply shown no reason past pure conjecture why Kevin Green should be tested at all.
5. The defendant has submitted an affidavit of his mother that Jerry Avery is his third cousin once removed. The Court concludes from reading Petitioner’s Exhibits One and Two from the hearing herein that such an attenuated relationship could not possibly change the results of the testing in this case, even if the Court allowed testing of Jerry Avery’s DNA against the sample from the hair collected from the person of Dorothy Lawson, which could not be excluded as Isom’s.
Isom contends that these findings by the court support a finding of “inconclusiveness” because only a partial DNA profile of the black hair was used for the Mini-STR testing and the Mini-STR test did not exclude relatives, such as Kevin Green and Jerry Avery, as matches. Isom’s argument to the circuit court and on appeal, however, is not so much that he is not a DNA match but rather that someone else, and specifically Kevin Green or Jerry |7Avery, might also be matches. While we question whether the circuit court actually made a finding that the tests were inconclusive, both Isom’s argument and the State’s argument center on the fact that the test results are inconclusive. We conclude that the court did not abuse its discretion in denying additional testing pursuant to Arkansas Code Annotated section 16 — 112—208(b) (Repl.2006).
III. Right to Additional Testing
Isom contends that he has a constitutional right under the Due Process Clause of article 2, section 8 of the Arkansas Constitution to access the DNA of Kevin Green and Jerry Avery in the state databases for postconviction testing. He emphasizes that this case does not present a Fourth Amendment issue of forcing a third party to give a DNA sample because the State already has DNA samples from Green and Avery in its possession. His contentions must fail.
There is no constitutional right to a postconviction proceeding; but when the State undertakes to provide collateral relief, due-process concerns require that the proceeding be fundamentally fair. See Robinson v. State, 295 Ark. 693, 699, 751 S.W.2d 385, 339 (1988). Arkansas Code Annotated section 16 — 112—208(b) provides, “[i]f the deoxyribonucleic acid (DNA) test results obtained under this subchapter are inconclusive, the court may order additional testing or deny further relief to the person who requested the testing.” As this | scourt recently explained, section 208(b) refers to DNA test results that are scientifically inconclusive, not results that are legally inconclusive. See Echols v. State, 2010 Ark. 417, 373 S.W.3d 892. Isom has not been excluded as the perpetrator under two DNA tests and, indeed, was matched with the hair found on the victim’s person. Further testing of third parties would not change that fact. However, the DNA profile developed was only a partial profile, and, therefore, the results are best characterized as inconclusive rather than as establishing Isom as the source of the DNA evidence.
In denying the motion for additional testing of third persons, the trial court considered the fact that, while the testing somewhat increased the probability that another unknown person could have contributed the partial DNA profile, the testing still did not exclude Isom. We are also mindful that Ms. Lawson was “adamant” and certain about her identification of Isom. Finally, the circuit court found that Isom’s relationship to Avery was “attenuated” and that there had been no showing of Green’s involvement past pure conjecture.
We hold that when DNA test results match the person requesting additional testing, it is not fundamentally unfair to refuse additional testing. We further hold that the circuit court did not abuse its discretion in denying additional testing under section 16-112-208(b) based on the fact that the test results conducted pursuant to Isom’s original petition do not exclude him as the source of the DNA evidence and further testing of third parties would not conclusively eliminate him.
Affirmed.
HANNAH, C.J., and DANIELSON, J., concur.
Special Justice JAMES A. SIMPSON, JR., dissents.
CORBIN, J., not participating.
. Isom’s Rule 37 appeal is Isom v. State, CR08-1386.
. The State argues that the DNA testing did not reduce the chances by much, if at all, because it is unclear whether the new testing looked at additional alleles, different alleles, or a combination of the same and some different alleles, from the alleles reviewed in the original test.
. Isom concedes that there is no federal due-process right to access evidence for postcon-viction testing. See Dist. Attorney's Office for Third Judicial Dist. v. Osborne, 557 U.S. 52, 129 S.Ct. 2308, 174 L.Ed.2d 38 (2009). | [
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KAREN R. BAKER, Judge.
|! Appellant, Ray Dozier, appeals from an order terminating his parental rights to his daughter, R.D., born October 6,1999. On appeal, appellant asserts that the evidence was insufficient to support the trial court’s termination of his parental rights to R.D. We affirm the termination order.
On September 14, 2007, the Department of Human Services (Department) placed a seventy-two-hour hold on R.F. and R.D., children of Rita Adams-Fairrow, due to allegations of domestic violence occurring in the home and Ms. Adams-Fairrow’s inability to protect herself or her two younger children. After a hearing on the Department’s petition for ex-jparte2 emergency custody and dependency-neglect, the court found that immediate removal of the juveniles from the present custodian was necessary to protect the health and safety of the juveniles from immediate danger and entered an order for emergency custody on September 17, 2007. On September 20, 2007, a probable-cause hearing was held. There, the court found that probable cause existed that the emergency conditions that necessitated removal of the juveniles from the custody of the mother continued so that it was necessary that the juveniles continue in the custody of the Department and that it was contrary to the welfare of the children to be returned home.
On November 6, 2007, the children were adjudicated dependent-neglected. The adjudication was based on the mother’s testimony at the adjudication hearing that she used cocaine, her positive drug screen in September, and her positive drug screen at the adjudication hearing. The adjudication was also based on the history of conflict and domestic violence in the home, environmental neglect, and the mother’s significant health problems, including mental-health issues, kidney failure, hepatitis, and congestive heart failure. In the adjudication order, the court noted the issues of drug use in the home and the mother’s alleged association with drug dealers. The goal of the case was reunification, and the Department’s case plan was approved.
A review hearing was held in March 2008, and by the time of that hearing, Rita Adams-Fairrow had passed away. Appellant, father of R.D., appeared at the March 2008 hearing and sought custody of both juveniles. The court ordered that custody remain with the [.^Department pending a paternity test and noted that appellant had a criminal record, including a domestic-battery conviction.
At a permanency-planning hearing on August 12, 2008, the court determined that the case goal was still reunification. The court found that appellant was not credible when he stated that he was not aware of the dependency-neglect case involving LaQualla Plair, to whom appellant was married, and her children. The court further found that appellant “did in fact know of same. In Ms. Plair’s court case, she told the court that she was through with [appellant]. Now it is evident that she and [appellant] got back together right after that case was closed and are now married.” The court noted appellant’s personality disorder, forensic psychologist Dr. Paul Deyoub’s concerns about appellant’s inadequacies, and that appellant was virtually a stranger to R.D. Although reunification did not seem realistic, the court ordered that appellant be given more time in which to receive services due to the Department’s failure to set up domestic-abuse classes for him. Appellant was ordered to obtain and maintain stable housing and employment, attend individual counseling, attend marital counseling with his wife, attend family therapy if recommended by the social worker, and follow recommendations from his psychological evaluation.
At a permanency-planning hearing on November 25, 2008, the court found that returning custody to the parent was contrary to the welfare of R.D. and that continuation of custody in the Department was in the best interest of and necessary for the protection of R.D.’s health and safety. The court determined that it was also in the best interest of R.D. Rthat the goal of the case be termination and adoption. In so finding, the court reviewed the history of this case involving R.D., as well as the history of another related case involving appellant, appellant’s wife LaQual-la Plair, and Plair’s children. Court orders from the Plair case were entered as exhibits in the case involving R.D. The court noted that appellant had no relationship with R.D. before this case began and that appellant had a personality disorder and a history of domestic battery. The court found that appellant had not complied with the case plan and orders of the court and set supervised visitation for one hour per week.
On January 2, 2009, the Department filed a petition to terminate appellant’s parental rights, alleging that R.D. had been adjudicated dependent-neglected and had continued out of the custody of the parents for twelve consecutive months. Despite a meaningful effort by the Department to rehabilitate the parent and to correct the conditions that had caused removal, those conditions had not been remedied by the parent. The petition further alleged that other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrated that return of R.D. to the custody of the parent was contrary to her health, safety, or welfare and that despite the offer of appropriate family services, the parent had manifested the incapacity or indifference to remedy the subsequent issues or factors or to rehabilitate the circumstances that prevented R.D.’s return to appellant.
At a hearing on the petition to terminate parental rights, social worker Nita Spann testified that she was R.D.’s therapist. She had conducted family therapy with appellant and R.D. She testified that she did not foresee reunification with appellant as a viable option for |fiR.D. She stated that R.D. did not know her father, that appellant did not have any sort of relationship with R.D. until her mother died, and that, based on the interaction between appellant and R.D. during therapy, appellant did not display the skills to parent R.D. She testified that appellant had told her that he did not have any relationship with any of his children and had left the children in the care of their drug-dependent mothers. Ms. Spann was concerned about the dependency-neglect case involving appellant’s wife, LaQualla Plair, and Plair’s children, because in that case appellant had placed Plair’s children in danger during domestic disputes. She testified that R.D. needed someone with “very specialized parenting skills” based on the signs of mental illness she already displayed. On more than one occasion, R.D. expressed to her that she did not want to live with appellant. Ms. Spann testified that, although appellant did not miss any of the therapy sessions, in her opinion, appellant did not possess the skills necessary to parent R.D., and it was in R.D.’s best interest that appellant’s rights be terminated.
Dr. Deyoub also testified at the termination hearing. He stated that he did not recommend that R.D. be placed with appellant and Ms. Plair because appellant and Plair had a significant history of domestic abuse (resulting in Plair suffering two broken arms and a fight resulting in a knife wound), which had previously led to removal of Plair’s children from her custody. A no-contact order between appellant and Plair and her children was in place after the removal of Plair’s children. Nevertheless, after the children were returned to her, appellant and Plair reunited, were married, and lived together. Dr. Deyoub testified that placing R.D. |6in that situation would be harmful to her. Appellant had not accepted responsibility for the domestic abuse and denied hitting Plair. Dr. Deyoub’s evaluation revealed that appellant had borderline-personality disorder and was withdrawn and avoidant. Appellant had poor interpersonal skills, an erratic work history, a poor history of family stability and very little involvement in the lives of his three older children.
Romulus Henry, a social worker with HLH Consultants, testified that he worked with appellant and Plair in therapy beginning in December 2008. Both appellant and Plair told him that their relationship was “better.” Both denied having any recent physical altercations or disputes, but Plair later admitted to attacking appellant with a knife. Appellant also later admitted to “pushing” Plair, but not hitting her. Henry testified that appellant was very angry at “the system,” and felt that he had been mistreated by the system. Henry testified that “[t]he amount of treatment [appellant] would need to resolve his anger issues would be left up to [appellant] and how much he [felt] that he [had] to have.” Henry stated that Plair would sit quietly during sessions and would only speak when asked a question. Henry testified that during a therapy session between appellant, Plair and Plair’s three children, appellant and Plair did not show anger toward each other. Henry concluded that it was in R.D.’s best interest that appellant’s parental rights be terminated.
Testimony by the Department’s adoption specialist showed that R.D. was adoptable. Kametric Burley, the Department’s social worker, testified that despite appellant’s compliance with all the services offered to him, she still recommended termination based on appellant’s |7psychological evaluation and the therapist’s reports. She stated that, despite services, appellant was unable to provide the educational services and the social skills and parenting skills necessary to care for R.D. Burley also recognized Mr. Henry’s testimony that appellant had not addressed the domestic-abuse issue in therapy, and thus, Henry could not say that appellant had successfully completed domestic-abuse classes.
LaQualla Plair Dozier testified that she suffered from bipolar and paranoid-schizophrenic disorder. She stated that after the dependency-neglect case regarding her children had been closed in July 2007, she and appellant “decided to give it another try.” They married on March 15, 2008, despite her previous testimony that she would “never be around [appellant] again.” She claimed that there had not been any more incidents of domestic abuse involving appellant.
Appellant testified that he had benefited from the domestic-violence classes and other services offered to him. He had learned to control his attitude and his feelings. He stated that his home was appropriate for R.D. and that R.D. had a bedroom there. He testified that R.D.’s stepsiblings were happy for her to come live with them. Appellant testified that he was very “open” with Dr. Deyoub during Dr. Deyoub’s evaluation.
After considering and reviewing all the evidence submitted and the testimony of the witnesses, the court found that it was contrary to the child’s best interest, health and safety, and welfare to return the child to the parental care and custody of appellant and further found that the Department had proved by clear and convincing evidence that the child had been | ^adjudicated dependent-neglected and had continued out of the custody of the parent for twelve months, and despite a meaningful effort by the Department to rehabilitate the parent and to correct the conditions that had caused removal, those conditions had not been remedied by the parent. Based on these findings the court granted the Department’s petition and terminated appellant’s parental rights to R.D. This appeal followed.
A heavy burden is placed on a party seeking to terminate the parental relationship, and the facts warranting termination must be proved by clear and convincing evidence. Strickland v. Ark Dep’t of Human Servs., 103 Ark.App. 193, 287 S.W.3d 633 (2008). The question this court must answer is whether the trial court clearly erred in finding that there was clear and convincing evidence of facts warranting the termination of parental rights. Hall v. Ark. Dep’t of Human Servs., 101 Ark.App. 417, 278 S.W.3d 609 (2008). Termination of parental rights is an extreme remedy and in derogation of the natural rights of the parents. Ratliff v. Ark. Dep’t of Human Servs., 104 Ark. App. 355, 292 S.W.3d 870 (2009) (citing Albright v. Ark. Dep’t of Human Servs., 97 Ark.App. 277, 248 S.W.3d 498 (2007)). However, courts are not to enforce parental rights to the detriment or destruction of the health and well-being of a child. Id. Pursuant to Arkansas Code Annotated section 9-27-341(b)(3)(A) (Repl.2008), an order terminating parental rights must be based on a finding that termination is in the child’s best interest, which includes consideration of the likelihood that the juvenile will be adopted and the potential harm caused by returning custody of the child to the parents. The harm referred to in the termination statute is “potential” harm; the circuit court is not required to 19find that actual harm would result or to affirmatively identify a potential harm. Lee v. Ark. Dep’t of Human Servs., 102 Ark.App. 337, 285 S.W.3d 277 (2008). In addition, the proof must establish at least one of several statutory grounds set forth in Arkansas Code Annotated section 9-27-341(b)(3)(B).
Here, appellant contends that he has met all the requirements set forth in the case plan. He admits, however, that he needed more time to bond with the child and to develop the skills and attributes necessary to parent a child. The intent of our termination statute is to provide permanency in a child’s life in all instances in which the return of the child to the family home is contrary to the child’s health, safety, or welfare, and it appears from the evidence that a return to the family home cannot be accomplished in a reasonable period of time as viewed from the child’s perspective. Ark.Code Ann. § 9-27-341(a)(3) (Repl.2008). Moreover, a child’s need for permanency and stability may override a parent’s request for additional time to improve the parent’s circumstances. See Camarillo-Cox v. Ark. Dep’t of Human Servs., 360 Ark. 340, 201 S.W.3d 391 (2005); Jones-Lee v. Ark. Dep’t of Human Servs., 2009 ArkApp. 160, 316 S.W.3d 261.
Mere completion of the case plan does not defeat a petition to terminate parental rights. See Wright v. Ark. Dep’t of Human Servs., 83 Ark.App. 1, 115 S.W.3d 332 (2003). What matters is whether completion of the case plan achieved the intended result of making a parent capable of caring for the child. Id. Appellant had no involvement in R.D.’s life until after her mother’s death. Although appellant had completed most classes, the trial court found | inthat appellant received minimal benefit from those services and that potential harm to R.D. existed if returned to appellant’s custody due to appellant’s history of domestic violence, his diagnosis of a personality disorder and borderline intellectual functioning, his wife’s paranoid schizophrenia, and both Dr. Deyoub’s and R.D.’s therapist’s conclusion that appellant was not capable of parenting R.D. Under these facts, we cannot say the trial court erred in terminating appellant’s parental rights.
Affirmed.
HENRY and BROWN, JJ., agree.
. R.D.’s half-sister, R.F., is also the subject of the April 21, 2009 termination order. Appellant is not the biological parent of R.F., and the termination of parental rights as to R.F.'s biological father, Hosea Blackmon, is not at issue in this case. | [
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ROBERT J. GLADWIN, Judge.
| , Tiffany Benedetto appeals from the Faulkner County Circuit Court’s orders denying her motion for default judgment against appellee Justin Wooten Construction, LLC, and granting appellee’s motion to dismiss. We affirm the circuit court’s orders.
In March 2008, appellant sued appellee for malicious prosecution and abuse of process. She alleged that she and her former husband entered into a contract to buy a house from appellee and took possession of it before closing; she and her husband became estranged, and he moved out of the house while continuing to make payments to appellee. Appellant further alleged that, after appellee filed a petition for ejectment against her in March 2006, it permitted her husband to occupy the house. She contended that appellee had exploited her circumstances, abused the legal process, and filed the ejectment action without cause and with ^malicious intent to humiliate her.
Appellee moved to dismiss, alleging that appellant had not responded to or entered an appearance in the ejectment action, and that she had voluntarily moved out of the house. Appellee asserted that, because it had not pursued the action any further, the circuit court involuntarily dismissed the action for failure to prosecute on December 1, 2006, and because it did not refile the action within one year, this case was barred by res judicata.
On May 22, 2008, appellant moved for default judgment and to strike appellee’s motion on the ground that it had been served on April 22, 2008, and failed to file an answer or appear until May 13, 2008, which was one day late. Along with a copy of the receipt, she attached an affidavit of service stating that, on April 22, 2008, Justin Wooten (who owns appellee-company with his wife) had signed a re ceipt for the complaint and summons sent by certified mail.
Appellee asserted that its untimely filing of the motion to dismiss was the result of mistake, inadvertence, or excusable neglect. It argued that, on May 7, 2008, Wooten had informed appellee’s attorney that he had been served on April 23, 2008, not April 22, 2008, as reflected on the certified mail “green card,” and that the attorney had believed that May 13, 2008, was the deadline for filing an answer. Ap-pellee added that its attorney had not known that May 12, 2008, was the deadline because appellant had not filed the proof of service until May 22, 2008, which was not timely. In its accompanying brief, ap-pellee argued that appellant had suffered no surprise or prejudice; that its default in this case was largely |3technical; and that, under the current version of Arkansas Rule of Civil Procedure 55, which was designed to promote judgments on the merits, rather than on technicalities, the entry of a default judgment is discretionary. Appellee pointed out that it had appeared by filing its motion to dismiss, which set forth a meritorious defense. See Ark. R. Civ. P. 55(a) (2009).
Appellant filed a supplemental brief in support of her answer to appellee’s motion to dismiss, stating that res judicata did not apply because the lawsuits were based upon two separate events. See Crockett & Brown, P.A. v. Wilson, 314 Ark. 578, 864 S.W.2d 244 (1993). In her brief, appellant set forth the elements of the torts of malicious prosecution and abuse of process. To prevail on a claim for malicious prosecution, a plaintiff must prove (1) a proceeding instituted or continued by the defendant against the plaintiff; (2) termination of the proceeding in favor of the plaintiff; (3) absence of probable cause for the proceedings; (4) malice on the part of the defendant; and (5) damages. See Farm Serv. Coop., Inc. v. Goshen Farms, Inc., 267 Ark. 324, 590 S.W.2d 861 (1980). Appellant argued that her claim for malicious prosecution did not arise until after the conclusion of the original action.
One asserting an abuse-of-process claim must establish (1) a legal procedure set in motion in proper form, even with probable cause and ultimate success; (2) the procedure is perverted to accomplish an ulterior purpose for which it was not designed; and (3) a willful act is perpetrated in the use of process which is not proper in the regular conduct of the proceeding. South Ark. Petroleum Co. v. Schiesser, 343 Ark. 492, 36 S.W.3d 317 (2001). The test of abuse of process is whether a judicial process is used to extort or coerce. Id. The key 14to the tort is the improper use of process after its issuance in order to accomplish a purpose for which the process was not designed. Id. Thus, it is the purpose for which the process is used, once issued, that is important in reaching a conclusion. Id.
The court held a hearing on July 8, 2008. Wooten testified that he believed that he had signed the green card at the post office on Wednesday, April 23, and not the day before, because as soon as he picked up the complaint, he showed it to his wife, who only worked on Monday, Wednesday, and Friday, at her place of employment. He stated that he did not write the “4/22/08” date on the green card, and that, whoever (he assumed the postal service) did, wrote the wrong date. The court then looked at the postal service’s web site to verify the actual date of service, but concluded its efforts by stating that it was “not helpful.” The court did not take any further testimony, but heard the arguments of counsel.
On July 11, 2008, the circuit court entered an order denying appellant’s motion for default judgment and granting appel-lee’s motion to dismiss. The court noted that Wooten had believed that he picked up the summons on Wednesday, April 23, 2008, and not Tuesday, April 22, 2008, because he remembered taking it to his wife at work, and she worked on Wednesdays, not Tuesdays. The court stated that, since Rule 55 was amended in 1990, it is preferable to decide cases on the merits, rather than on technicalities. It found that appellee had shown mistake or inadvertence, as well as a meritorious defense, while appellant had suffered no prejudice.
The court dismissed appellant’s malicious-prosecution claim because she could not | fi“meet even a perfunctory showing of element two, termination of the proceeding in favor of the Plaintiff.” The court stated that the ejectment action was dismissed sua sponte by the court for lack of prosecution; that there was no termination in favor of either party; and that appellee could have pursued the action, especially in light of appellant’s failure to answer the petition. The court also stated that res judicata did not bar this claim because it requires termination of an earlier legal action, which appellant could not have alleged in the first lawsuit.
Regarding the abuse-of-process claim, the court acknowledged that appellant was not required to establish that the first action was resolved in her favor. Nevertheless, the court reasoned, the claim-preclusion aspect of res judicata barred the abuse-of-process claim because it could have been raised as a counterclaim in the ejectment action, citing South Arkansas Petroleum Co. v. Schiesser, supra; McNair v. McNair, 316 Ark. 299, 870 S.W.2d 756 (1994); and Farm Service Coop., Inc. v. Goshen Farms, Inc., supra. On July 15, 2008, the court entered a “Final Order” stating that appellant’s May 22, 2008 filing of the affidavit of service did not comply with Arkansas Rule of Civil Procedure 4(g), although it did not render the service invalid, and stating that an earlier filing would have “mitigated any mistake or inadvertence argument.”
On August 21, 2008, appellant filed a motion for relief from judgment, asserting that she had obtained a certified copy of the postal service’s electronic-delivery record, which indicated that Wooten had received the complaint and summons on April 22, 2008. Appellant |fiattached a copy of the delivery record obtained from the postal service’s web site. Appellant argued that appellee had failed to plead Wooten’s certainty of having received the complaint on April 23, 2008. Appellee responded that, regardless of whether it had pled that Wooten knew he had received the complaint on April 23, 2008, appellant had waived that argument by failing to object to his testimony at the hearing. The court denied the motion for relief from judgment on September 30, 2008, stating that it had considered the postal service’s documents before issuing its earlier order, and reiterating that appellee had established mistake or inadvertence. Appellant then pursued this appeal.
Appellant argues in her first point that the circuit court erred in denying her motion for default judgment, citing Goston v. Craig, 34 Ark.App. 23, 805 S.W.2d 92 (1991), in which this court followed the requirements of Arkansas Rule of Civil Procedure 55 before it was significantly amended in 1990. The standard by which we review the granting or denying of a motion for default judgment is whether the trial court abused its discretion. B & F Eng’g, Inc. v. Cotroneo, 309 Ark. 175, 830 S.W.2d 835 (1992); Moore v. Taylor Sales, Inc., 59 Ark.App. 30, 953 S.W.2d 889 (1997). Default judgments are not favorites of the law and should be avoided when possible. Id. Under former Rule 55(c), a default judgment could be set aside upon a showing of “excusable neglect, unavoidable casualty, or other just cause.” In 1990, the supreme court amended Rule 55 by making it more lenient, and allowing more |7discretion to trial courts in deciding whether to enter a default judgment. Id. The revised rule reflects a preference for deciding cases on the merits rather than on technicalities. Id. The revised Rule 55(c) reads as follows: “The court may, upon motion, set aside a default judgment previously entered for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; ... or (4) any other reason justifying relief from the operation of the judgment.” This subsection of the rule also requires that the party seeking to have the judgment set aside must demonstrate a meritorious defense to the action. The reporter’s notes to Rule 55 explain that, in deciding whether to enter a default judgment, the court should take into account the factors utilized by the federal courts, including: whether the default is largely technical and the defendant is now ready to defend; whether the plaintiff has been prejudiced by the defendant’s delay in responding; and whether the court would later set aside the default judgment under Rule 55(c). The same considerations apply in considering whether a trial court abused its discretion in denying a default judgment. B & F Eng’g, supra. Whether a trial court abused its discretion in making this ruling should be decided on a case-by-case basis. Id.
The circuit court did not abuse its discretion in denying appellant’s motion for default judgment. Appellee proved that either Justin Wooten or the postal service was mistaken; that the filing was only one day late; that appellee appeared and raised a meritorious defense; and that appellant was not prejudiced. In fact, appellant’s counsel conceded in oral argument that appellant suffered no prejudice, and we agree. Considering all the material circumstances, no | «abuse of discretion occurred, and we affirm as to the motion for default judgment.
In her second point, appellant acknowledges that there are no cases in Arkansas addressing whether a dismissal for failure to prosecute is a “termination in favor of the plaintiff’ sufficient to meet that element of a malicious-prosecution claim. She urges us to follow comment j to Restatement (Second) of Torts § 674 (1977), which states that it may be sufficient:
Civil proceedings may be terminated in favor of the person against whom they are brought ... by (1) the favorable adjudication of the claim by a competent tribunal, or (2) the withdrawal of the proceedings by the person bringing them, or (3) the dismissal of the proceedings because of his failure to prosecute them. A favorable adjudication may be by a judgment rendered by a court after trial, or upon demurrer or its equivalent. In either case the adjudication is a sufficient termination of the proceedings, unless an appeal is taken. If an appeal is taken, the proceedings are not terminated until the final disposition of the appeal and of any further proceedings that it may entail.
The Restatement approach recognizes that the particular circumstances of each case must be considered. This comment adds that whether a withdrawal or an abandonment constitutes a final termination of the case in favor of the person against whom the proceedings are brought, and whether the withdrawal is evidence of a lack of probable cause for their initiation, depends upon the circumstances under which the proceedings are withdrawn. Cult Awareness Network v. Church of Scientology Int’l, 177 Ill.2d 267, 226 Ill.Dec. 604, 685 N.E.2d 1347 (1997), cert. denied, 523 U.S. 1020, 118 S.Ct. 1300, 140 L.Ed.2d 466 (1998) (recognizing that this position avoids the problems inherent in allowing a plaintiff to avoid a malicious prosecution action by obtaining a nonfactual disposition of the action).
We need not decide whether a dismissal for failure to prosecute is a termination in favor of the plaintiff in the context of a malicious-prosecution case. Although there may be | gsituations warranting that conclusion, this is not such a case. The circumstances of this case clearly show that the dismissal of the ejectment action cannot be viewed as a termination in appellant’s favor. Appellant did not bother to file an answer or otherwise appear in the ejectment action, and appellee did not pursue it because it had obtained the relief it sought, i.e., appellant moved out of the house. Accordingly, we reject appellant’s challenge to the circuit court’s ruling on the malicious-prosecution claim.
Appellant also challenges the circuit court’s holding that the abuse-of-process claim was barred by res judicata. The doctrine of res judicata has two aspects: claim preclusion and issue preclusion. See Cox v. Keahey, 84 Ark.App. 121, 133 S.W.3d 430 (2003). Under the claim-preclusion aspect of the doctrine of res judicata, a valid and final judgment rendered on the merits by a court of competent jurisdiction bars another action by the plaintiff or his privies against the defendant or his privies on the same claim or cause of action. Id. Res judicata bars not only the relitigation of claims that were actually litigated in the first suit, but also those that could have been litigated. Id. When a case is based on the same events as the subject matter of a previous lawsuit, res judicata will apply even if the subsequent lawsuit raises new legal issues and seeks additional remedies. Id.
Appellant argues that res judicata did not apply to the abuse-of-process claim because the two lawsuits were based upon different events, and she could not have filed a | ¶ (¡counterclaim alleging that tort in the ejectment action. We disagree. Appellant could have filed a counterclaim for abuse of process in the context of the ejectment action. See McNair v. McNair, supra. The foundation of appellant’s abuse-of-process claim was that, in forcing her to leave the house, appellee perverted the ejectment procedure to accomplish a purpose for which it was not designed. The very object of an ejectment action, however, is to obtain possession of land from one who wrongfully holds possession. See Patterson v. McKay, 199 Ark. 140, 134 S.W.2d 543 (1939); Henry v. Gulf Refining Co., 176 Ark. 133, 2 S.W.2d 687 (1927); Ark.Code Ann. § 18-60-201 (Repl.2003). Clearly, the two lawsuits were based on the same event, appellee’s recovery of possession of the house. The circuit court, therefore, was correct in holding that the abuse-of-process claim was barred by res judicata.
Affirmed.
GLOVER and BROWN, JJ„ agree.
. Appellant also argues that the court should not have found mistake or inadvertence because, at the hearing, Justin Wooten testified that the mistake was made by the USPS in recording the wrong date of delivery of service. The trial court, however, explained that it had considered the USPS's records in mak ing its finding that appellee had proven mistake or inadvertence.
. Appellant erroneously asserts that "there are no cases in Arkansas law which dismiss a claim for abuse of process based on res judi-cata.” In Jayel Corp. v. Cochran, 366 Ark. 175, 234 S.W.3d 278 (2006), the supreme court affirmed, on the basis of res judicata, a trial court’s entry of summary judgment for the defendant on an abuse-of-process claim. | [
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MOTION FOR RULE ON CLERK.
PER CURIAM.
[[Appellant Ben Sisler, by and through his attorney, Frances M. Finley, has filed a motion for rule on the clerk. The circuit court in this ease entered a final order on March 11, 2009, and Finley filed a timely notice of appeal on behalf of her client on April 9, 2009. Under Ark. R.App. P.-Civ. 5(a), the record was due to be filed with this court within ninety days from that date, or no later than July 8, 2009.
Unfortunately, counsel, who had undergone knee surgery in May of 2009, experienced post-operative complications. At a July 6, 2009 appointment with her physician, counsel was scheduled for an outpatient procedure to take place on July 8, 2009. Although the record arrived at counsel’s Little Rock office from the Van Burén County clerk’s office on July 8, by the time counsel got home from the hospital, this court’s clerk’s office had already closed. Counsel seeks a motion for rule on clerk, arguing that she inadvertently | ¿miscalculated the due date and believed she had one more day in which to lodge the record with this court.
We are unable to grant the motion. In criminal cases, under Arkansas Rule of Appellate Procedure — Criminal 2(e), a petitioner may seek to appeal an order, in some circumstances, despite having failed to comply with the time requirements imposed by the rules governing criminal appeals. No comparable rule exists to perfect an appeal in civil cases. This court has recognized some circumstances where an exception may be appropriate, however, such as cases involving the termination of parental rights where a right to appeal is implicated. See Childers v. Ark. Dep’t of Human Servs., 360 Ark. 517, 202 S.W.3d 529 (2005) (per curiam) (refusing to dismiss an appeal in a termination-of-parental-rights case where the parent had failed to timely lodge the record); Linker-Flores v. Ark. Dep’t of Human Servs., 359 Ark. 131, 194 S.W.3d 739 (2004) (holding that indigent parents have a right to an appeal from a judgment terminating parental rights). We have also acknowledged that extraordinary circumstances may exist in other situations not involving the termination of parental rights. See, e.g., Thomas v. Ark. State Plant Bd., 254 Ark. 997- A,497 S.W.2d 9 (1973) (court found extraordinary circumstances and unavoidable casualty to exist where a tornado destroyed counsel’s home and law office, thus warranting the granting of a motion for rule on clerk in a civil case). However, no such circumstances exist here. See Waste Mgmt. & Transp. Ins. Co. v. Estridge, 363 Ark. 42, 210 S.W.3d 869 (2005).
liHere, although counsel avers that she would have filed the record on July 8 if she had gotten back from the hospital before the close of business hours, she also concedes that she miscalculated the date on which the record was due, stating that she “really thought she had another day” to lodge the record. Accordingly, we cannot conclude that there exists the kind of “unavoidable casualty” that would warrant granting the motion for rule on clerk.
IMBER, J., not participating. | [
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JIM HANNAH, Chief Justice.
liThe Arkansas Beverage Retailers Association, Inc., Albert Young, President, and Albert Young, individually (“the Association”), appeal a decision of the Arkansas Alcoholic Beverage Control Board (“Board”) reversing a decision of the Arkansas Alcoholic Beverage Control Division (“Division”) denying the transfer of a retail liquor permit requested by Sam’s West, Inc. The decision of the Board was appealed to the circuit court, and the circuit court affirmed the Board’s decision. The Association asserts it is appealing the decision of the circuit court, and that the circuit court erred in (1) failing to find that Arkansas Code Annotated section 3-4-218(a)(1) (Supp.2003) restricts liquor permits to businesses that sell exclusively liquor, (2) failing to find that allowing sales of liquor by the [ 2seller of goods other than liquor violates the equal protection rights of businesses restricted to selling only liquor, and (3) finding that there was substantial evidence that another retail liquor store serves the public convenience and advantage.
We note first that while the Association asserts error in the circuit court’s decision, it is actually appealing the decision of the Board, both of which found that the liquor permit should issue to Sam’s West. Review by the appellate court is directed not to the decision of the circuit court but to the decision of the administrative agency. Ark. Dep’t of Human Servs. v. A.B., 374 Ark. 193, 199, 286 S.W.3d 712, 717 (2008). Further, it is not the role of the circuit courts or the appellate courts to conduct a de novo review of the record; rather, review is limited to ascertaining whether there is substantial evidence to support the agency’s decision. Id. Substantial evidence is evidence that is valid, legal, and persuasive; it is evidence that a reasonable mind might accept to support a conclusion and force the mind to pass beyond speculation and conjecture. C.C.B. v. Ark. Dep’t of Health & Human Servs., 368 Ark. 540, 247 S.W.3d 870 (2007). The question is not whether the evidence would have supported a contrary finding, but whether it could support the finding that was made. Id. Further, it is the prerogative of the board to believe or disbelieve any witness and to decide what weight to accord witnesses’ testimony. Id. We affirm the decision of the Board. Our jurisdiction is pursuant to Arkansas Supreme Court Rule 1 — 2(a)(7).
Sam’s Club wished to open and operate a package liquor store in conjunction with |..Sam’s Club # 8209 at 3075 North Highway 112, Fayetteville, Arkansas. To that end, Sam’s West, Inc., a subdivision of Sam’s Club, Inc., was created to establish and run the liquor store. Sam’s West filed an application with the Division on May 9, 2005, to transfer a retail liquor license from “The Party Store” at 3107 N. College, Fayetteville, Arkansas, to Sam’s Club # 8209 location, there to be operated by Sam’s West in a separate store with a common wall to Sam’s Club.
Dean Carlson designed the subject Sam’s Club shopping center. According to Carlson’s testimony at the hearing before the Board, Sam’s Club # 8209 and the adjoining Sam’s West store were part of a strip mall design, and Sam’s Club and Sam’s West were designed as if two totally unrelated parties were going to occupy those two stores. In further support of this assertion, Carlson noted that the two stores have separate addresses, separate exterior entrances, no interior entrance from Sam’s Club to Sam’s West, separate loading docks, separate merchandise delivery, separate merchandise storage facilities, separate utilities, and separate heating and air-conditioning systems. Shane Holtrey testified that he would be the general manager of the Sam’s West liquor store, and that he would have liquor store employees who were only employees of the liquor store. He further testified that his financial accounting would be separate, that he would have a separate bank account, and that he has authority to make decisions about hiring employees. He also stated that the store would open at 10:00 a.m., that it would close at 8:30 p.m. to 9:00 p.m., and that it |4would be closed on Sunday.
The Division denied the application to transfer the liquor permit. Sam’s West appealed this decision to the Board, and the Board reversed the decision. The Association appealed the Board’s decision to the Pulaski County Circuit Court. The circuit court granted a motion to dismiss the appeal based on a lack of standing, and that decision was reversed by this court. See Ark. Beverage Retailers Ass’n, Inc. v. Moore, 369 Ark. 498, 256 S.W.3d 488 (2007). Upon remand, the circuit court affirmed the Board and rejected all arguments raised by the Association.
The Division receives applications for liquor permits and decides whether to issue a permit. See Ark. Code Ann. § 3-2-205(c)(1) (Supp.2003). A decision by the Division may be appealed to the Board. See id. § 3-2-201 (h). Further, a decision of the Board may be appealed to the circuit court, and the appeal is taken under the Administrative Procedure Act. See id. § 3-2-216 (Repl. 1996). Judicial review in the circuit court granted by the Administrative Procedure Act is set out in section 25-15-212(h) (Repl. 2002):
(h) The court may affirm the decision of the agency or remand the case for further proceedings. It may reverse or modify the decision if the substantial rights of the petitioner have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the agency’s statutory authority;
(3) Made upon unlawful procedure;
(4) Affected by other error or law;
js(5) Not supported by substantial evidence of record; or
(6)Arbitrary, capricious, or characterized by abuse of discretion.
Before we address the Association’s arguments on appeal, we note that Sam’s West argues that the Board’s reliance on Arkansas Code Annotated section 3-4-218 (Supp.2003) concerning premises where liquor sales may take place was incorrect. This section provides that it applies to permits issued after February 18, 1971. See Ark.Code Ann. § 3-4-218(c) (Supp.2003). Sam’s West argues that section 3-4-218 is not applicable to this case; however, the issue of the section’s applicability to these facts was not raised or decided below. Our review in this case is under appellate jurisdiction, and we may not review an issue raised for the first time on appeal. Plant v. Wilbur, 345 Ark. 487, 496, 47 S.W.3d 889, 894-95 (2001).
To the extent that Sam’s West is arguing a lack of subject-matter jurisdiction, that is an issue that may be raised for the first time on appeal and indeed may be raised by this court. See Seay v. C.A.R. Transp. Brokerage Co., 366 Ark. 527, 237 S.W.3d 48 (2006). Sam’s West argues that the statute may not apply because it only applies to permits issued after February 18, 1971, and the permit at issue was issued prior to that date. However, there is no dispositive evidence in this case as to when the permit was issued. The only evidence offered with respect to the date that the liquor license was issued is that someone worked at “The Party Store” in the early 70s, the site from which the permit was transferred in this case. The license is not before us, and “early 70s” is not evidence that the license was | fior was not issued before February 18, 1971. Thus, although we will raise an issue of subject matter jurisdiction on our own motion, we cannot say that the Board lacked subject matter jurisdiction.
The Association argues that Arkansas Code Annotated section 3-4-218 “prohibits Sam’s Club and other similar department stores from holding retail liquor licenses.” The Association argues that Sam’s Club sells practically all the prohibited products listed in the statute, and according to the Association, the statute seeks to assure that permit holders focus their attention solely on the sale of liquor and not be distracted by the sale of other products. The Association further argues that “the statute prohibits the permitted premises of a liquor store from being operated as part of the profit making business of ‘any drug, grocery, sporting goods, dry goods, hardware or general mercantile store.’ ” According to the Association, the liquor store will be owned by Walmart, financed by Walmart (including building the store and paying employees), and Wal-mart will receive the profits from the store. The Association argues that the liquor store is to be operated as part of “the profit making business of Sam’s Club/Walmart.”
The Association’s argument is that the statute prohibits a business owner from cross-merchandising by ownership, in other words, it prohibits a person from owning both a liquor store and another store that in any way feed off each other in creating a profitable business. The statute provides:
[y(a)(l) No new liquor permits shall be issued to nor shall any outstanding liquor permit be transferred to any person, firm, or corporation by the Alcoholic Beverage Control Division wherein the permitted premises of the liquor permittee is operated as a part of the profit-making business of any drug, gro- eery, sporting goods, dry goods, hardware, or general mercantile store.
Ark.Code Ann. § 3^4 — 218(a)(1) (Supp. 2003). We are called upon to decide an issue of statutory construction:
The basic rule of statutory construction is to give effect to the intent of the legislature. Rose v. Arkansas State Plant Bd., 363 Ark. 281, 213 S.W.3d 607 (2005). Where the language of a statute is plain and unambiguous, we determine legislative intent from the ordinary meaning of the language used. Id. In considering the meaning of a statute, we construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. 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. Id. However, when a statute is ambiguous, we must interpret it according to the legislative intent, and our review becomes an examination of the whole act. Id. We reconcile provisions to make them consistent, harmonious, and sensible in an effort to give effect to every part. Id. We also look to the legislative history, the language, and the subject matter involved.
Ark. Dep’t of Econ. Dev. v. William J. Clinton Presidential Found., 364 Ark. 40, 48, 216 S.W.3d 119, 124-25 (2005).
Section 3-4-218 was enacted as part of Act 106 of 1971, and the title of the bill included the phrase: “Define the Permitted Premises Where Liquor Can Be Sold.” “Premises” is not defined in the code with respect to issuing a liquor permit. The Arkansas Internet Prescription Consumer Protection Act defines premises as “the portion of any building or structure leased, used, or controlled by the licensee in the conduct of the | Sbusiness registered by the Arkansas State Board of Pharmacy at the address for which the registration was issued.” Ark.Code Ann. § 17-92-1003(12) (Supp.2007). The Charitable Bingo and Raffles Act defines premises as “the area subject to the direct control of and actual use by a licensed authorized organization to conduct games of bingo.” Id. § 23-114-1102(13) (Supp. 2007). The Board clearly concluded that “premises” in section 3^1-218 refers to the liquor store. Stated differently, the premises is the actual business located within a specific building or structure where the liquor permittee is allowed to sell liquor. Thus, because Sam’s West liquor sales were limited to the separate premises of the Sam’s West store, the permit was granted, even though Sam’s West is a subsidiary of Sam’s Club, which sells a host of non-liquor products in its adjoining store.
Our review of this decision by the Board is limited in scope, specifically to determining whether it is supported by substantial evidence and is not arbitrary, capricious, or constitutes an abuse of discretion. Holloway v. Ark. State Bd. of Architects, 352 Ark. 427, 433, 101 S.W.3d 805, 809 (2003). As we have often noted, administrative agencies are better equipped by specialization, insight through experience, and more flexible procedures than courts, to determine and analyze legal issues affecting their agencies. Id. “We have further held that it is also a rule of statutory construction that the manner in which a law has been interpreted by executive and administrative officers is to be given consideration and will not be disregarded unless it is clearly wrong.” Cave City Nursing Home v. Ark. Dep’t of Human Servs., 351 Ark. 13, 22, 89 S.W.3d 884, 889 (2003). As the facts show, substantial evidence supports the Board’s decision. We cannot say that the Board’s interpretation and application of section 3-4-218 is clearly wrong.
However, the Association also argues that in granting the permit, Sam’s Club is allowed to sell liquor and nonalcoholic beverage items and that the members of the Association, being similarly situated, are not. They thus argue denial of equal protection.
In deciding whether an equal protection challenge is warranted, there must first be a determination that there is a state action which differentiates among individuals. Bosworth v. Pledger, 305 Ark. 598, 604, 810 S.W.2d 918, 920 (1991). Once equal protection is invoked, the rational basis test must be applied to determine whether there exists any rational basis for the classification. Bosworth v. Pledger, supra. The rational basis test is generally applied to the review of tax legislation. Streight v. Ragland, Comm’r, 280 Ark. 206, 212, 655 S.W.2d 459, 462 (1983).
Pledger v. Featherlite Precast Corp., 308 Ark. 124, 135-36, 823 S.W.2d 852, 859 (1992). As already discussed, the Board and this court reject the argument that Sam’s Club is operating liquor sales as part of its Sam’s Club store # 8209 operation. Rather, the liquor sales at Sam’s West are permissible as sales at a separate premises that are not part of the sales at Sam’s Club store #8209. Therefore, to state a cause of action under equal protection in this case, the Association would have to show that they applied for and were denied a permit to operate a liquor store on a premises near but separate from their operation of, for example, a grocery store. They would have to show that they were similarly situated to Sam’s West and were denied a permit while Sam’s West was granted a permit. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). The Association has not done so. There is no merit to the equal-protection claim.
The Association also argues that it was error to grant the transfer of the liquor permit because the requirement of public convenience and advantage set out in Arkansas Code Annotated section 3-4-201 (Supp.2003) was not met. This section grants the Board discretion to issue permits but does not permit more than one liquor permit per four thousand population. Ark.Code Ann. § 3-4-201(c)(l)(A). This was not the grant of a liquor permit, rather, it was a transfer. After the Board acted, there were precisely as many permits as there were before. There is no merit to the argument that the number of permits was increased. The Board found that the move of the permit to the Sam’s Club site would be in the interest of public convenience. In this regard, the Board considered the statutory requirements regarding where liquor may be sold, and it also found that the transfer served public convenience and advantage and looked not only at the interests of the applicant but also that of the general public. See, e.g., Ark. Alcoholic Beverage Control Bd. v. Muncrief, 308 Ark. 373, 825 S.W.2d 816 (1992). The Board specifically stated that it considered the presentations and found that the move to the Sam’s Club location would be more suitable and to the convenience and advantage of the public. There is substantial evidence to support the Board’s decision.
Affirmed.
Special Justice JOHN GOODSON and Special Justice DAVID MADDOX join.
CORBIN and WILLS, JJ., not participating.
. See Ark.Code Ann. § 25-15-201 (Repl. 2002). | [
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ELANA CUNNINGHAM WILLS, Justice.
liThis court granted appellant Kathy Travis Gilbow’s petition to review the court of appeals’s decision in Gilbow v. Travis, 2009 Ark. App. 254, 2009 WL 936945, which she contends is inconsistent with Smith v. Smith, 341 Ark. 590, 19 S.W.3d 590 (2000). As an issue of first impression, this case requires us to determine whether a trial court has the authority to order that an arrearage resulting from a retroactive increase in child support be placed in an account in the noncustodial parent’s name to provide for the future needs of the children.
Gilbow and appellee Patrick Travis were divorced in 1999. Gilbow received custody of the parties’ two children, and Travis was ordered to pay alimony for five years and child support. In November 2006, Travis filed a petition in the Benton County Circuit Court seeking an order to enforce mid-week visitation rights with the children. Gilbow filed a Rcounter-petition on December 20, 2006, seeking an increase in child support. On October 29, 2007, the circuit court entered an order that granted Gilbow’s petition for an increase in child support, increasing the amount of support from $6,500 to $10,317 per month. The amount awarded was a downward deviation from the child support chart provided by Arkansas Supreme Court Administrative Order No. 10, and disallowed certain items in Gilbow’s “proposed budget.” The circuit court awarded the increase effective as of the date of the petition, which resulted in a ten-month arrearage in the amount of $38,170.00.
Travis filed a motion for a new trial, asserting that the increase in child-support payments should have been effective as to the date of the October 29, 2007 order, rather than retroactive to the date Gilbow filed her petition. Alternatively, at the end of his brief in support of the motion, Travis requested that the circuit court order the retroactive award be placed in a trust or “college fund” to be maintained by himself, or under court control with funds to be dispersed upon court approval. Gil-bow responded to Travis’s motion by as serting that Travis had not stated any grounds for a new trial and that the award was properly made retroactive.
The circuit court entered a November 30, 2007 amended order, again finding that the increase in child support should be retroactive to the date Gilbow filed her petition. But in order to avoid a “windfall” to “Gilbow’s household,” the circuit court ordered Travis to place the $38,170 arrearage into an account “to address any needs of the children that may arise between now and the time the youngest child reaches the age of 18.” The amended order |3further stated that, although the account would be held in Travis’s name, he must “provide an accounting upon request to Ms. Gilbow, and proof that the account is still intact.”
In her appeal from the original and amended orders to the court of appeals, Gilbow argued that the circuit court erred by (1) ordering that the child support ar-rearage be placed into an interest-bearing account controlled by Travis that she could not access; and (2) deviating from the child-support chart provided by Administrative Order No. 10 by refusing to consider Gilbow’s proposed budgeting for $3,000 per month for “mom care,” which “would allow her to work part-time or not at all,” in order for her to be “a stay at home mother for the parties’ children.” The court of appeals affirmed the circuit court’s decision to create the account to hold the retroactive increase but reversed the portion of the trial court’s order that required Travis to set up the account in his name. Instead, the court of appeals instructed that the trial court on remand must modify its order to require that an interest-bearing account be created in Gilbow’s name and “require the chosen financial institution to file with the clerk of the circuit court an agreement not to permit any withdrawal from the account except on authority of the circuit court’s order.” Id. The court of appeals affirmed the circuit court’s deviation from the child-support chart, holding that there was no abuse of discretion on that point.
In her petition for review, Gilbow specifically asserts that the court of appeals’s decision “approving the establishment of a fund by the circuit court to remain under the control of the circuit court,” effectively created a guardianship contrary to “the principals of Smith. ” |4Further, she contends that “our system does not provide for advance court management” of child support funds, which are required to be “spent by the custodial parent to benefit the minor,” and, accordingly, the actions of the circuit court and court of appeals “have changed the nature of the arrearage of child support from child support to something else.”
Upon a grant of a petition for review, we consider the case as though it had originally been filed in this court. Tucker v. Office of Child Support Enforcement, 368 Ark. 481, 247 S.W.3d 485 (2007). The standard of review for an appeal from a child-support order is de novo, and this court will not reverse a finding of fact by the circuit court unless it is clearly erroneous. Ward v. Doss, 361 Ark. 153, 158, 205 S.W.3d 767, 770 (2005). In reviewing a circuit court’s findings, the appellate court gives deference to the circuit court’s superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony. Id. As a rule, when the amount of child support is at issue, this court will not reverse the chancellor absent an abuse of discretion. Id. However, a circuit court’s conclusion of law is given no deference on appeal. Id.
The general assembly amended Ark. Code Ann. § 9-14-107 by enactment of Act 337 of 2003 to provide that, “Any modification of a child support order that is based on a change in gross income of the noncustodial parent shall be effective as of the date of filing a motion for increase or decrease in child support unless otherwise ordered by the court.” Ark.Code Ann. § 9 — 14—107(d) (Supp.2009). Here, the circuit court ordered the increase to be retroactive to the date Gilbow filed her petition. However, citing Smith, supra, Gilbow | .^contends that “there is no basis in the statutes or guidelines” for the circuit court to order the retroactive increase in child support be deposited in an interest-bearing account. Gilbow further asserts that “establishing such a fund is contrary to the purposes of the child support statute and guidelines, which is to provide for the needs of the child,” and that the effect of the circuit. court’s order was to find “a particular amount of support was appropriate, and then deny it.”
In Smith, the noncustodial parent brought an appeal that challenged the amount of child support awarded by the trial court. He also argued that the trial court erred by refusing to order that a trust be created, and for a portion of the awarded child support to be placed in the trust and set aside for the future needs of the child. This court affirmed the trial court, holding that there was no “authority to designate portions of the child-support award for that purpose,” and stated that “child support is not to provide for the accumulation of capital by children, but is to provide for their reasonable needs.” Smith, 341 Ark. at 596, 19 S.W.3d at 594-95.
Although this case involves an increase in child support payments and retroactive award, rather than an initial award of child support, that is a distinction without a difference. As in Smith, there is no authority that would allow a court to order that a retroactive amount resulting from an increase in child support be placed in an interest-bearing account. Accordingly, we reverse the circuit court’s order on this point and remand for disposition consistent with this opinion.
hFor her second point on appeal, Gilbow argues that the circuit court erred in setting Travis’s child support payments “at variance” with the family support chart — “Child Support Guidelines” — delineated by Section VII of Supreme Court Administrative Order No. 10. The amount of child support lies within the discretion of the court and the court’s findings will not be disturbed on appeal, absent a showing of an abuse of discretion. Smith, supra.
Arkansas Code Annotated § 9-12-312(a)(2) (Repl.2008) provides that
In determining a reasonable amount of support, initially or upon review to be paid by the noncustodial parent, the court shall refer to the most recent revision of the family support chart. It shall be a rebuttable presumption for the award of child support that the amount contained in the family support chart is the correct amount of child support to be awarded. Only upon a written finding or specific finding on the record that the application of the support chart would be unjust or inappropriate, as determined under established criteria set forth in the family support chart, shall the presumption be rebutted.
Similarly, Section 1 of Administrative Order No. 10 (2009) states that
It is a rebuttable presumption that the amount of child support calculated pursuant to the most recent version of the Family Support Chart is the amount of child support to be awarded in any judicial proceeding for divorce, separation, paternity, or child support. The court may grant less or more support if the evidence shows that the needs of the dependents require a different level of support.
See also Akins v. Mofield, 355 Ark. 215, 132 S.W.3d 760 (2003) (holding that the presumption under Administrative Order No. 10 applies to retroactive child support).
In Davis v. Bland, 367 Ark. 210, 217, 238 S.W.3d 924, 929 (2006), we affirmed a downward deviation from the child-support guidelines where the chart amount for support of a seven-year-old child of over $24,000 a month would “result in a redistribution of 17wealth,” which was “unjust and inappropriate” and “prohibited by” Smith, supra. We stated that
Although the court must consider the chart, it does not have to use the chart amount if the circumstances of the parties indicate another amount would be more appropriate.... [T]he court may grant more or less support if the evidence shows that the needs of the child require a different level of support.
Id. at 215, 238 S.W.3d at 927. But, “Any deviations from the chart amount [ ] must include written findings, stating why the chart amount is unjust or inappropriate.” Id.
Here, Gilbow acknowledges that the circuit court considered the family support chart and her affidavit describing her financial need, “as well as a list of other items [Gilbow] testified she wanted to provide for the children,” in making its increased monthly support determination. She argues, however, that the circuit court abused its discretion in rejecting her “allowance in her proposed budget” for “mom care” in the amount of $3,000 per month. According to Gilbow, “In seeking an allowance for ‘mom care’ to allow her to work part time or not at all, [she] was not seeking something exotic, at least as far as these parties were concerned.” Instead, her requested “allowance” was intended to “support the lifestyle the children of the parties had at one time.”
In its October 29, 2007 order granting Gilbow’s petition for monthly child support increase, the circuit court found that the presumptive amount of monthly support provided by family support chart— $16,252 per month — was rebutted based on “credible evidence presented to the [e]ourt, the testimony, the exhibits, [and] the needs of the children.” | ^Specifically, the circuit court stated as follows:
According to the figures calculated by the [c]ourt, it appears that Dr. Travis’ income since the last hearing has increased about 59 percent. In the event the Court increased the Plaintiffs child support by that amount, it would be $11,016.19 monthly. The [c]ourt still believes that is somewhat greater than [ ] what is needed to meet the needs of the children. The [c]ourt then looked at the Plaintiffs Exhibit 7, which is basically the Plaintiffs wish list in order to place her in a position to provide for the children and her home, those things that are more in line with [what] is provided to them in Dr. Travis’ home. The [c]ourt deducted the $3,000.00 the Plaintiff had on there for mom care, because the [c]ourt doesn’t think that is appropriate, that would be more in the nature of an alimony payment. In addition, the Court deducted the $1,000 a month for the desire to put in a family pool, because the [e]ourt does not feel that is appropriate.... In addition, the [c]ourt reduced the wish list by $500 a month that she pays on a rental house that the [c]ourt is having difficulty justifying. After all calculation, the [c]ourt determined an appropriate amount of child support would be $10,317.00 per month, resulting in an increase substantially from the $6,500.00 per month presently in place.
The circuit court did not abuse its discretion in deviating from the child support chart by disallowing Gilbow’s request for a $8,000 allowance in order for her to work part time or not at all. The purpose of child support is to provide for children’s “reasonable needs.” Smith, 341 Ark. at 596, 19 S.W.Sd at 595. Considering the child support chart, evidence, testimony, and exhibits, the trial court determined that the increase to ‘ $10,317 per month was “reasonable,” and allowed “both homes to provide for the children, not in identical manner, but in like manner, for the children.” See id. (rejecting an argument that a child was “entitled to a standard of living identical to his father’s”). Accordingly, under the circumstances of this case, we cannot conclude that the circuit court abused its discretion in deviating from the chart amount.
^Circuit court reversed and remanded in part; affirmed in part. Court of appeals reversed in part; affirmed in part.
BOWEN, J., not participating in final opinion. | [
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JOHN B. ROBBINS, Judge.
^Appellant James Poole appeals from the Ashley County Circuit Court’s divorce decree. On June 16, 2008, the circuit court awarded a divorce to appellee Anna (Shelly) Poole, and gave her custody of the parties’ daughters, B.P., born in 1992, and A.P., born in 1997. Appellant has a son, J.P., with Nicki Morgan, and has had custody of J.P. since he was a toddler. Appellant challenges the division of property, the award of attorney’s fees to appellee, certain evidentiary rulings, and the custody award. We affirm the circuit court’s decision in all respects.
The parties married in 1993 and separated in April 2005. Appellee filed for divorce in May 2005. With his answer, appellant counterclaimed for divorce. On June 17, 2005, appellant and Morgan were arrested and charged with possession of marijuana with intent |2to deliver and simultaneous possession of marijuana and firearms. The contraband was located at Morgan’s residence.
The court held a temporary hearing on July 11, 2005, at which appellee testified that she did not want her children around Morgan. Appellant objected on the basis of hearsay. Appellee’s attorney then produced a newspaper article about the arrests,- to which appellant also objected on the basis of hearsay. The court admitted this evidence only to show the nature of the charges filed against appellant. Without objection, appellee testified that she wanted a restraining order because appellant had held a gun to her head more than once; that he had choked her; and that he had intimidated and threatened her in other ways. Appellant objected when appel-lee stated that she had found a note on the windshield of her van at Wal-Mart, where she worked. She stated, “There are security cameras at Wal-Mart and the person who put this on my van was filmed by the security cameras at Wal-Mart and I was given a description.... According to the description, Mr. Poole’s nephew put it on my van.” The court overruled appellant’s hearsay objection to this statement. Ap-pellee also said that appellant had used marijuana in their home within the past five years.
Appellant testified, “Nicki Morgan Robertson has been arrested and charged just like I have_ Since my arrest on Father’s Day I have been required to submit to drug testing because of my work. I passed.” He said that he would be willing to submit to a hair-follicle drug test. Appellant explained that he had nothing to do with the drugs involved in his arrest. He denied hitting, choking, or using a gun to threaten appellee, but admitted, “We just can’t |sget along.” In the temporary order, the court gave appellee temporary custody of the children and stated: “Nicki Morgan is not to be present in the home of the defendant’s parents, next door [where she was then living with appellant’s sister], or in the vicinity of the visitation. She is not to be around the children or have contact with the children at any time.” The court gave appellant standard visitation and directed him to have no contact with appellee.
Appellant’s drug test was positive for methamphetamine. Appellee filed a petition for contempt and to abate or restrict visitation on the basis of the drug test; appellant’s having told B.P. that smoking marijuana was “okay”; forcing B.P. to talk with him about the family’s situation; and permitting Morgan to call him while the children were visiting (when one of the children answered the phone). The court abated appellant’s visitation until the hearing on the petition.
At the next hearing, appellee testified that appellant had placed the children in an unsafe environment. Appellant objected on the basis of hearsay. Appellee said that appellant had continued to harass her by sending letters with child-support checks; driving by her mother’s house frequently; and cursing her at the snow-cone stand. Appellee stated that appellant had verbally threatened her every time he saw her, as recently as the past Monday, and introduced notes that appellant had written to her into evidence. When appellee testified that appellant had told the children that it was okay to smoke marijuana, appellant objected on the ground of hearsay. Appellee explained that she had filed the petition because of the | children’s contact with Morgan; appellant’s failed drug test; and appellant’s harassment. She said that the children had been seeing counselors.
Appellant vaguely denied telling B.P. that it was okay to smoke marijuana. He explained, “I really didn’t tell her it was okay to smoke marijuana. I just feel like it ain’t really nothing really wrong with it. It’s not as bad as people really say it is. Well, it says in the Bible all herbs and seed-bearing plants are good.” Appellant denied using methamphetamine and said that the test must have been affected by his sinus medication. He also denied threatening appellee but admitted showing his diary to B.P. Without objecting to the question, appellant admitted having been arrested in June with Morgan and charged with possession of marijuana with intent to deliver and simultaneous possession of marijuana and firearms.
B.P. testified that she had told her mother that she did not want to visit her father because of the way he had treated appellee; that A.P. had answered the phone when Morgan called appellant; and that appellant had told her “that God put [marijuana] on this earth for a reason and that it says in the Bible that marijuana is a [sic] herb ... and that it’s got to be used for something.” She said that appellant had insisted on talking to her about her mother. She denied having smoked marijuana and said that appellant had not tried to give her any. From the bench, the trial judge told appellant that his sinus-medication explanation insulted his intelligence and gave appellant “one more chance” with visitation.
Appellee filed a petition for contempt on February 2, 2006, stating that appellant had continued to harass and threaten her, even calling Wal-Mart’s main office to complain about [¡¡her. She alleged that appellant had accused her of being the informant for his drug charges and had warned her “that she had better watch her back, that he would get her for this.” She also alleged that he was behind in child support.
On March 24, 2006, appellee filed a motion to abate visitation, stating that appellant had smoked marijuana with B.P. on more than one occasion. Appellant agreed to suspend visitation until a hearing was held. Appellant filed a motion to reinstate visitation on September 12, 2006, and a copy of a negative drug-test report for July 5, 2006. Appellant also passed a drug test in October 2006. The court held another hearing about visitation on November 7, 2006. Appellant testified that he and B.P. had passed drug tests soon after ap-pellee had filed her petition to suspend visitation. The court admitted the drug-test reports into evidence. Appellant denied using marijuana, or even discussing it, with B.P. He admitted permitting her to have her navel pierced for her fourteenth birthday. He said that the jury had acquitted him of the drug charges.
Appellee testified that she had filed the petition to abate visitation because she had found a note from a friend to B.P. discussing B.P.’s doing drugs; that she had asked B.P. about it; and that she had performed a home drug test on B.P., which showed the presence of THC. Over appellant’s hearsay objection, the trial court admitted this testimony to explain why appellee had filed the pleading. Appellee said that appellant had accused B.P. of lying; after the hearing, he had walked up to her and said, “I’ll make you look like the biggest liar 16in Crossett.” Appellee said that B.P. was intimidated and worried about how her father would treat her during visitation.
Stacey Stitch, B.P.’s therapist, testified that B.P. had told her that she had smoked marijuana and drunk alcohol with her father. She said that B.P. felt guilty about what she had done but also felt victimized, because her father and his family had called her a liar. Ms. Stitch recommended supervised visitation. Over appellant’s hearsay objection, the court admitted this testimony because, as an expert, Ms. Stitch was entitled to base her opinion on what B.P. had told her. In rebuttal, appellant denied the substance of B.P’s and Ms. Stitch’s testimony but admitted telling B.P. that she had not told the truth.
Noting that B.P. had “some issues,” the court granted appellant visitation with her once a week, in conjunction with Ms. Stitch’s counseling, and gave him supervised visitation with A.P. After a hearing on February 27, 2007, the court granted appellant standard visitation.
The court held the final hearing on March 19, 2008. Appellee testified that she did not want to share custody of the children with appellant because she did not believe that he was capable of taking care of them. She said that, even when appellant had the children for visitation, she had to bring them food. She said that the children wanted to live with her and that she was worried the whole time they were with appellant. She stated that appellant owed her $7318 in child support. She said that, as a department manager in the photo lab, her net salary was $476 every two weeks; that the balance due on the house was about |7$45,000; that the deed to the land on which the parties built the house was in her name and was a gift from her grandmother; that the parties refinanced the house in December 2003, borrowing $56,000, and receiving $11,000 in cash; and that, when the parties separated, appellant had $7000 of that money in his checking account. The court admitted the November 2003 appraisal reflecting the property’s value as $73,000 into evidence. Appel-lee said that she had paid the mortgage since the parties separated. She stated that it would be acceptable for appellant to receive his one-half equity in the house ($14,000) by receiving credit for the $7000 that he took upon their separation and the $7000 in child support he owed. Appellee said that she had paid $6590 in attorney’s fees and owed her attorney $4265, plus the fees due from this hearing.
Appellant testified that the parties had built the house during the marriage and that he had made most of the payments while he was there. He said that he used the $7000 to pay marital debts. He asked for joint custody and denied not providing enough food for the girls. He admitted owing appellee child support. Appellant stated that he worked at Georgia-Pacific an average of forty hours a week, at $17 to $20 an hour. Appellant also had a retirement plan with his former employer that had a present value of $8,413.78, which would return about $204 a month at retirement age.
In the final order, the trial court awarded appellee a divorce and custody of the children; gave appellant standard visitation; and ordered appellant to pay child support of 18$150 a week, based on a weekly take-home pay of $555. The court awarded the house and the land on which it was built to appellee, stating,
The parties built a home on that tract. There is no record regarding the cost of the construction. There is no evidence as to the value of the labor provided by Mr. Poole. There is no evidence of any increase in equity due to payments made during the marriage. The Court finds the home and 2 1/2 acres on which it stands to be the separate property of Ms. Poole. He obviously contributed some unknown amount to the value of the home. Therefore the Court accepts the offer of Ms. Poole to forgive any child support arrearages as payment for such contribution.
The court ordered the other two-and-a-half-acre tract sold and the proceeds divided equally, leaving appellee liable for any indebtedness on both tracts. The court awarded appellee one-half of appellant’s retirement account, and held appellant responsible for the debts (which he had incurred after the separation). The court found that appellant had applied the $7000 to marital debts. It also distributed the various household items; a boat, motor, and trailer; tools; an ATV; a lawn mower; a guitar and amplifier; a dog pen; two computers; and two vehicles. Appellant filed a timely notice of appeal.
Appellant raises four points on appeal. He does not challenge the trial court’s award of child support or the findings supporting it; the distribution of personal property; or the division of the other tract of land. In his first point, he argues that the trial court erred in its disposition of the marital home, which was built during the marriage on appellee’s nonmarital land. Appellant correctly notes that a non-owning spouse is entitled to some benefit when marital funds have been used to improve or pay off debts on the other spouse’s nonmarital property. See Box v. Box, 812 Ark. 550, 851 S.W.2d 437 (1993); Williford v. Williford, 280 Ark. |a71, 655 S.W.2d 398 (1983); Camp v. Camp, 18 Ark.App. 87, 710 S.W.2d 842 (1986). Appellant argues that appellee received a windfall; that the division was not equal; and that the trial court’s explanation for its decision did not comply with Ark.Code Ann. § 9-12-315(a) (Repl.2008). Appellant urges this court to reverse, using the following computation: subtract the outstanding debt as of the date of the final hearing, $45,882.23, from the November 2003 appraised value of $73,000, leaving a net equity of $27,117.77, of which appellant would be entitled to one-half, $13,558.88; when his arrearages of $7318 are subtracted, there would be a balance of $6,240.88 due him.
Arkansas Code Annotated section 9-12-315 provides that “all marital property shall be distributed one-half to each party unless the court finds such a division to be inequitable.” The court may make some other division that the court deems equitable; however, when it decides not to divide the property equally between the parties, it must recite its basis and reasons for the unequal division in its order. Ark.Code Ann. § 9-12-315(a)(l)(B). With respect to the division of property in a divorce case, we review the circuit court’s findings of fact and affirm unless those findings are clearly erroneous. Dial v. Dial, 74 Ark. App. 30, 44 S.W.3d 768 (2001). The court has broad powers to distribute property in order to achieve an equitable distribution. Keathley v. Keathley, 76 Ark. App. 150, 61 S.W.3d 219 (2001). The overriding purpose of Ark. Code Ann. § 9-12-315 is to enable the court to make a division of property that is fair and equitable under the specific circumstances. Id. Section 9-12-315 does not compel mathematical precision in the distribution of property; it simply requires that | inmarital property be distributed equitably. Copeland v. Copeland, 84 Ark. App. 303, 139 S.W.3d 145 (2003).
A circuit court’s valuation of property for purposes of property division will not be reversed unless it is clearly erroneous. Hoover v. Hoover, 70 Ark. App. 215, 16 S.W.3d 560 (2000). The burden of establishing the increase in the property’s value lay with appellant. See Farrell v. Farrell, 365 Ark. 465, 231 S.W.3d 619 (2006). Here, the trial court attempted to give appellant his benefit in the property’s increase in value, in the absence of much proof by appellant as to what that was. The appraisal indicated that appellee’s land, which was nonmarital property, was worth $8000. Therefore, appellee argues that, if appellant’s analogy is used, $8000 should be subtracted from the $73,000 appraisal, leaving the value of the home at $65,000; if $65,000 is reduced by $45,882.23, their equity would be $19,117.77, and one-half of that amount, $9,558.88, is only $2,240.88 more than the arrearages for which the court gave appellant credit. She also stresses that appellant had $7000 in his checking account from the proceeds of the house’s refinancing at the time of the parties’ separation in April 2005. The court found that appellant used that money to pay marital debts.
Without evidence of the before- and-after value of the property to show the existence and extent of any increase in the value of nonmarital property, any reduction in debt on that property is not considered to be marital property to be divided equally. Powell v. Powell, 82 Ark. App. 17, 110 S.W.3d 290 (2003). Instead, the non-owning spouse is simply entitled to have the marital contribution considered in balancing the equities involved in the property Indivisión. Id. In Rasberry v. Rasberry, 2009 Ark.App. 594, 331 S.W.3d 231, we followed Powell and affirmed the trial court’s refusal to award the appellant husband an interest in real property purchased by the wife before the marriage. We could not say that the trial court erred because the husband failed to present any evidence of the property’s value at the time of the divorce or the amount of the reduction of debt. It is an appellant’s burden to bring up a record sufficient to demonstrate error. Rose Care, Inc. v. Ross, 91 Ark.App. 187, 209 S.W.3d 393 (2005). Considering that there was no evidence of the increase in the value of the house, the trial court’s finding on this issue was not clearly erroneous. Additionally, the trial court’s overall distribution of the parties’ property was equitable.
In his second point, appellant argues that the trial court abused its discretion in admitting hearsay evidence. Appellant argues that the trial court should not have admitted appellee’s testimony that appellant and Morgan had been arrested for drugs. When his attorney objected, appellee’s attorney asked to in troduce a newspaper article about the arrest. Over appellant’s objection, the trial court entered the article into evidence and permitted appellee to testify, but only to show the crimes for which appellant had been charged. Arkansas Rule of Evidence 801(c) defines “hearsay” as “a statement, other than one made by the. declaring while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” We will not reverse a circuit court’s ruling on the admissibility of evidence absent a manifest abuse of discretion. Hopkins v. Ark. Dep’t of Human Servs., 79 Ark. App. 1, 83 S.W.3d 418 (2002). To have abused its discretion, the circuit court must not only 112have made an error in its decision, but also have acted “improvidently, thoughtlessly, or without due consideration.” Chapman v. Ford Motor Co., infra. Even if the trial court erred in making an evidentiary ruling, we would affirm absent a showing of prejudice. Dodson v. Allstate Ins. Co., 345 Ark. 430, 47 S.W.3d 866 (2001).
Although this evidence was hearsay, Chappell Chevrolet, Inc. v. Strickland, 4 Ark. App. 108, 628 S.W.2d 25 (1982), its admission did not prejudice appellant. More than once, appellant admitted that he had been charged with the crimes described above. He also explained that he had been acquitted of those crimes.
Appellant also argues that the trial court should not have permitted appel-lee to testify about the identity of the individual who placed a note on her van while she was at work at Wal-Mart, in violation of the no-contact order. She testified that Wal-Mart’s security cameras filmed the person who placed it there; that someone viewed the video tape and gave her a description of the individual; and that, using this description, she identified appellant’s nephew as that person. Appellant contends that the video tape constituted hearsay and that the information related to appellee about the tape was hearsay. See Nahlen v. State, 330 Ark. 1, 953 S.W.2d 877 (1997). Appellant is correct. However, this evidence was cumulative to appellee’s extensive testimony about how appellant had continually harassed her; thus, appellant suffered no prejudice from its admission.
Appellant also argues that appel-lee’s testimony about statements made by B.P. to her, the contents of the friend’s note, and the results of the at-home drug test, were inadmissible 113hearsay. Although the note was hearsay, the fact of its discovery was admissible, because it prompted appellee to investigate further and file the petition. A statement is not hearsay when it is offered to show the fact of some assertion or some action taken. Chapman v. Ford Motor Co., 368 Ark. 328, 245 S.W.3d 123 (2006).
Appellee testified at the temporary hearing, over appellant’s objection, that appellant told B.P. that it was acceptable to smoke marijuana. Although this was hearsay, any harm from its admission was later cured when B.P. testified and was subject to cross-examination by appellant. The danger of admitting hearsay statements is alleviated by the opportunity to cross-examine the declarant. Duvall v. State, 41 Ark. App. 148, 852 S.W.2d 144 (1993).
At the hearing for reinstatement of temporary visitation, the trial court permitted B.P.’s counselor to testify that B.P. had told her that she had smoked marijuana and drunk alcohol with appellant, over appellant’s objection. This testimony was admissible to explain the basis for the counselor’s diagnosis. Meins v. Meins, 93 Ark.App. 292, 218 S.W.3d 366 (2005).
Appellee testified that she had given B.P. a drug test at home, which had indicated the presence of marijuana, over appellant’s objection. Appellee did not remember the brand name of the test; explain how it was conducted; or have the test results with her. Appellant argues that, because the drug sample was handled and tested in an unreliable manner, it could not have yielded a reliable result, and that appellee was not qualified as an expert on drug testing or analysis. Even if this testimony was inadmissible, it did not prejudice appellant, in light of the counselor’s testimony.
114In his third point, appellant argues that the trial court abused its discretion in awarding $6,000 in attorney’s fees to appellee. Arkansas Code Annotated section 9 — 12—309(a)(2) (Repl.2008) provides that, in the final divorce decree, the trial court may award the wife or husband a reasonable attorney’s fee. A trial court has considerable discretion to award attorney’s fees in a divorce case. McKay v. McKay, 840 Ark. 171, 8 S.W.3d 525 (2000). In determining whether to award attorney’s fees, the trial court must consider the relative financial abilities of the parties. Id.
Appellant testified that his take-home pay was between $17 and $20 an hour, forty hours a week. He does not challenge the trial court’s finding that his net income was $555 a week. Appellee testified that she brought home $476 every two weeks, and that she had already paid her attorney $6950; that she still owed him $4265 for past services; and that she would also owe him his fees for the final hearing. Because appellant earns over twice as much as appellee, the trial court did not abuse its discretion in its award of attorney’s fees to appellee.
In his fourth point, appellant argues that the trial court abused its discretion in awarding custody of the children to appellee. He points out that, according to Arkansas Code Annotated section 9-13-101(b)(l)(A)(ii) (Repl.2008), the court may consider awarding joint custody of a child to the parents. Appellant admits that, in July 2005, he tested positive for methamphetamine by a hair-follicle drug test, but stresses that he explained to the court that he was taking sinus medication at that time. Appellant further notes that he never had another [^positive drug test, and that, even though he was tried before a jury for the drug charges, he was acquitted. The trial court did not believe appellant’s sinus-medicine explanation. Even •without the drug-related evidence, however, there was more than enough evidence to justify the trial court’s custody decision.
The standard of review in child-custody appeals is well settled. The primary consideration in child-custody eases is the welfare and best interest of the child involved; all other considerations are secondary. Walker v. Torres, 83 Ark. App. 135, 118 S.W.3d 148 (2003). We review child-custody cases de novo, but will not reverse a circuit court’s findings in this regard unless the findings are clearly erroneous. Id. Because the question of whether the circuit court’s findings are clearly erroneous turns largely on the credibility of the witnesses, we give special deference to the superior position of the trial judge to evaluate the witnesses, their testimony, and the child’s best interest. Sharp v. Keeler, 99 Ark. App. 42, 256 S.W.3d 528 (2007). There are no cases in which the superior position, ability, and opportunity of the trial judge to observe the parties carry as great a weight as those involving minor children. Id.; Judkins v. Duvall, 97 Ark. App. 260, 248 S.W.3d 492 (2007).
Although Arkansas Code Annotated section 9-13-101(b)(l)(A) was amended in 2003 to specifically permit a court to consider an award of joint custody, joint or equally divided custody remains disfavored in Arkansas. Dansby v. Dansby, 87 Ark. App. 156, 189 S.W.3d 473 (2004). The crucial factor bearing on the propriety of joint custody is the mutual ability of the parties to cooperate in reaching shared decisions in matters affecting the child’s welfare. Id. |1fiThe record plainly demonstrates that these parties cannot cooperate well enough to share custody. See id. Additionally, the evidence overall demonstrated that appellee was a better choice of custodial parent.
Affirmed.
KINARD and GRUBER, JJ., agree. | [
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RITA W. GRUBER, Judge.
hJ.S. was charged in the Benton County Circuit Court with aggravated robbery, felony kidnapping, felony fleeing on foot with serious physical injury, and criminal use of a prohibited weapon. J.S. was sixteen at the time of the alleged crimes. The charges stem from an incident in which appellant and six other teenagers allegedly robbed a Wendy’s restaurant in Rogers while under the influence of vari ous substances. Although he did not carry the weapon, J.S. allegedly provided a sawed-off shotgun for the robbery along with the group’s means of transportation. The kidnapping charge arose out of a code-fendant’s forcing a Wendy’s employee out of her car. The circuit court denied his motion to transfer to the juvenile division of circuit court. He appeals. We affirm the circuit court’s order.
For his first point on appeal, appellant contends that the circuit court applied the wrong burden of proof in deciding whether to transfer appellant’s case: the court used a clear-and-convincing burden of proof, and appellant contends the proper burden of proof was by |2a preponderance of the evidence. Specifically, appellant claims that he sought to transfer his case to the juvenile division of circuit court under the extended juvenile jurisdiction (“EJJ”) designation. While appellant agrees that the burden of proof in a transfer hearing is generally by clear and convincing evidence, see Ark.Code Ann. § 9-27-318(h)(2) (Repl. 2008), he argues that, where one is requesting transfer to the juvenile division of circuit court under the EJJ designation, the party requesting the designation only has the burden to prove “by a preponderance of the evidence that such a designation is warranted.” Ark.Code Ann. § 9-27-503(b) (Supp.2009).
Before we determine whether the circuit court used the correct burden of proof, we must first consider whether the issue is properly before us. Appellant admits that he did not raise this argument in the circuit court. Our law is well settled that we will not consider issues raised for the first time on appeal, even constitutional ones, because the trial court never had the opportunity to rule on them. Thomas v. State, 370 Ark. 70, 74, 257 S.W.3d 92, 96 (2007). A contemporaneous objection is required to preserve an issue for appeal; however, the supreme court has recognized four exceptions to the contemporaneous-objection rule, known as the Wicks exceptions. Id. at 74, 257 S.W.3d at 97 (citing Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980)). Wicks presents only the following four, narrow exceptions that are to be rarely applied: (1) when the trial court, in a death-penalty case, fails to bring to the | fury’s attention a matter essential to its consideration of the death penalty itself; (2) when defense counsel has no knowledge of the error and thus no opportunity to object; (3) when the error is so flagrant and so highly prejudicial in character that the trial court should intervene on its own motion to correct the error; and (4) when the admission or exclusion of evidence affects a defendant’s substantial rights. See Thomas, 370 Ark. at 75, 257 S.W.3d at 97; Anderson v. State, 353 Ark. 384, 395, 398, 108 S.W.3d 592, 599-600 (2003).
Appellant argues that the court’s alleged error in this case falls within the third and fourth Wicks exceptions. With regard to the fourth exception, we hold that it does not apply in this instance because the alleged error did not involve the admission or exclusion of evidence but the proper burden of proof. The fourth Wicks exception is based on Arkansas Rule of Evidence 103(d) and, as stated in Wicks, “at most applies only to a ruling which admits or excludes evidence.” Wicks, 270 Ark. at 787, 606 S.W.2d at 370. Appellant has cited no contrary authority.
The third exception is also not applicable in this case. This exception applies when the error is so flagrant and so highly prejudicial in character that the trial court should intervene on its own motion to correct the error. In this case, appellant argues that the circuit court used the clear-and-eonvincing burden of proof rather than by a preponderance of the evidence in determining whether to transfer his case to the juvenile division of circuit court under the EJJ designation. First, even if the circuit court used the wrong burden of proof, we do not find that this affected one of appellant’s fundamental rights, as the supreme court has required in applying this exception. See, e.g., Anderson, supra. This exception has been |4applied only where the error affected the very structure of the criminal trial. Anderson, 358 Ark. at 396, 108 S.W.3d at 600 (holding error involving companion rights of presumption of innocence and burden of proof beyond a reasonable doubt fell within the third Wicfcs exception); Cal-nan v. State, 310 Ark. 744, 841 S.W.2d 593 (1992) (holding error involving fundamental right to jury trial in criminal case fell within the third Wicks exception). The alleged error in this case did not occur in the criminal trial itself but in a transfer hearing. Moreover, the alleged error did not affect the very structure of the criminal trial because the circuit court did not apply the wrong burden of proof.
Arkansas Code Annotated section 9-27-318(e) permits any party to move to transfer a case from one division of circuit court to another, in this case from the criminal division to the juvenile division. The circuit court must then conduct a transfer hearing to make the determination; make written findings on the ten factors set forth in subsection 318(g); and, upon a finding by clear and convincing evidence that the case should be transferred to another division of the circuit court, the court shall enter an order to that effect. Ark. Code Ann. § 9-27-318(e), (g), (h).
A party desiring an extended juvenile jurisdiction designation may request such a designation and the court shall then hold a designation hearing pursuant to Ark.Code Ann. § 9-27-503. The party requesting the designation has the burden to prove by a preponderance -of the evidence that such a designation is warranted. Ark. Code Ann. § 9-27-503(b). “The EJJ designation factors and transfer factors the court must consider are almost identical. As a result, an EJJ designation hearing and transfer hearing may be conducted at the Issame time.” Connie Hickman Tanner, Arkansas’s Extended Juvenile Jurisdiction Act: The Balance of Offender Rehabilitation and Accountability, 22 U. Ark. Little Rock L. Rev. 647, 656-57 (2000). However, there can be no EJJ designation unless the case either is already in the juvenile division or is transferred to the juvenile division. Subsection 503(e) states that if the court denies the requested EJJ designation, then it shall “proceed with the case as a delinquency proceeding.” Clearly, this presupposes that, before a request for designation is considered, the case is in the juvenile division.
For example, in Lofton v. State, 2009 Ark. 341, 321 S.W.3d 255, the supreme court affirmed the circuit court’s denial of the appellant’s motion to transfer to the juvenile division. With regard to the appellant’s simultaneous request for extended juvenile jurisdiction, the court stated, “Arkansas Code Annotated section 9-27-318(i) provides that, upon the finding by the criminal division of a circuit court that a juvenile should be transferred to the juvenile division, the criminal division may enter an order to transfer as an extended juvenile jurisdiction case. Here, the cir- euit court found that Appellant should not be transferred to the juvenile division. Therefore, extended juvenile jurisdiction is not applicable in this situation.” Lofton, 2009 Ark. 341, at 9, 321 S.W.3d at 260. The fact that the hearings are conducted simultaneously does not lessen the requesting party’s burden of proof regarding his request to transfer from the criminal division to the juvenile division.
Appellant’s case was filed in the criminal division of circuit court. In order for his case to have been eligible for an EJJ designation, the circuit court must have made a finding by clear and convincing evidence that the case should have been transferred to the juvenile [ fidivision. The court made no such finding here; rather, it denied appellant’s motion to transfer. Therefore, we hold there was no error that the trial court should have intervened to correct and thus no Wicks exception to the contemporaneous-objection rule.
For his second point on appeal, appellant contends that, under either burden of proof, the court erred in denying his request for transfer to the juvenile division under the EJJ designation. While appellant does not point to any one of the ten factors the court considered in deciding whether to transfer, he argues that he did not “murder or rape anyone,” he was immature, and he was amenable to rehabilitation. We will not reverse a circuit court’s order denying transfer unless it was clearly erroneous. Lofton, 2009 Ark. 341, at 5, 321 S.W.3d at 258.
The circuit court denied appellant’s motion to transfer, finding appellant failed to provide clear and convincing evidence that the case should be transferred and making the following findings on the ten factors:
a.In regards to the seriousness of the alleged offense and whether the protection of society requires prosecution in the criminal division of the circuit court, that the alleged offense is serious in nature and the seriousness requires prosecution in the criminal division of Circuit court;
b. In regards to whether the alleged offense was committed in an aggressive, violent, premeditated, or willful manner, that evidence was presented showing that the alleged offense was committed in an aggressive, willful, or premeditated manner;
c. In regards to whether the offense was against a person or property, with greater weight being given to offenses against persons, especially if personal injury resulted, that the commission of this offense was a crime against persons and not property;
d. In regards to the culpability of the juvenile, including the level of planning l7and participation in the alleged offense, that the Defendant was as culpable as his co-defendants;
e. In regards to the previous history of the juvenile, including whether the juvenile had been adjudicated a juvenile offender and, if so, whether the offenses were against persons or property, and any other previous history of antisocial behavior or patterns of physical violence, that the Defendant has no previous juvenile court history or history of violence;
f. In regards to the sophistication or maturity of the juvenile as determined by consideration of the juvenile’s home, environment, emotional attitude, pattern of living, or desire to be treated as an adult, that the Defendant had the benefit of the opportunity to be in a family with strong support and who was willing to intervene directly when he was not making good choices;
g. In regards to whether there are facilities or programs available to the judges of the juvenile division of circuit court that are likely to rehabilitate the juvenile before the expiration of the juvenile’s twenty-first birthday, that there are facilities available on the juvenile level for the Defendant.
h. In regards to whether the juvenile acted alone or was part of a group in the commission of the alleged offense, that Defendant clearly acted as a member of a group;
i. In regards to written reports and other materials relating to the juvenile’s mental, physical, educational, and social history, evidence was presented regarding his history and reviewed by the Court in the making of this decision.
j. In regards to other factors deemed relevant by the Judge, this Court deems it relevant that this Defendant participated in much of the planning of the offense and went to the restaurant twice on the night of the alleged crime, once before returning to commit the alleged offense.
In making its decision denying appellant’s motion to transfer, the circuit court specifically addressed each of the ten factors in writing as required by Ark.Code Ann. § 9 — 27—318(g),(h). The circuit court is not required to give equal weight to each of the statutory factors, and it may use its discretion in deciding the weight to be afforded to each factor. Lofton, 2009 Ark. 341, at 9, 321 S.W.3d at 260. While the court noted that appellant |shad no criminal history and that there were rehabilitation facilities available, the court also found that the alleged offenses were serious; that the alleged crimes were committed in an aggressive, willful, or premeditated manner; that the offenses were against persons rather than property; that appellant was as culpable as his codefendants; that appellant had the benefit of a supportive family willing to intervene directly when he was not making good choices; and that appellant participated in the planning of the offense shortly after this intervention. In light of the evidence presented at the hearing, we hold that the circuit court’s order is supported by clear and convincing evidence and that appellant has not shown that the circuit court’s order was clearly erroneous.
Affirmed.
BAKER and BROWN, JJ., agree.
. We note that appellant did not file a motion to transfer, either with or without an EJJ designation request, but the' court held a two-day hearing on the matter on June 25 and 27, 2008. This hearing was referenced by the court in its omnibus/pretrial order dated May 5, 2008. | [
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D.P. MARSHALL JR., Judge.
| t After a bench trial, the circuit court often issues a letter opinion, which decides the case and directs the prevailing party’s lawyer to prepare a judgment. Arkansas Rule of Civil Procedure 58 authorizes the circuit court to do this or prepare its own judgment. Many times, the judgment either echoes the circuit court’s findings from the letter opinion, or incorporates the letter opinion, or both. When the terms of the judgment vary from the letter opinion, and the letter opinion is not incorporated in the judgment, questions arise. The question here presented is whether a clearly erroneous finding in the court’s unincorporated letter opinion, a finding which is absent from the judgment, should be overlooked or considered on appeal.
|2The Facts and Procedural History. T & S Machine Shop produced custom machine parts for KD Sales, which then used those parts to manufacture earth-moving equipment and replace parts in that equipment. T & S sued KD Sales, alleging that the manufacturer owed money for unpaid invoices. KD Sales answered and counterclaimed, alleging that some of T & S’s parts were defective. KD Sales eventually acknowledged that it owed T & S around $24,000.00.
The bench trial turned on whether T & 5 had provided KD Sales with defective parts. Though this dispute seems to fall under the Uniform Commercial Code, and KD Sales pleaded Code warranties, the parties tried it as a matter of the common law of contracts. The parties presented conflicting evidence on three key issues: whether the parts were defective; whether T & S or some other company had actually manufactured any defective parts; and how many defective parts T & S provided. The circuit court had to resolve the conflicting testimony, and evaluate the witnesses’ credibility, on all these issues. In a letter opinion issued three months after the trial, the circuit court ruled in favor of KD Sales.
In its letter opinion, the circuit court made a general finding based on all the evidence that T & S had provided defective machine parts to KD Sales. The court went on to make one specific finding in support of this general conclusion. The court found “specifically” that T & S issued “Returned Goods Authorization[s]” that became “credit memos” based on defective parts. This was incorrect. KD Sales, it was undisputed, had issued the returned-goods authorizations and the credit memos to its customers — the folks who had ultimately |sreceived T & S’s allegedly defective parts in KD Sales-manufactured equipment. In making this finding, the circuit court did one of two things: either the court inadvertently misnamed the parties, or it incorrectly thought that T 6 S had issued the credit memos, and thus essentially admitted liability. The circuit court offset the roughly $48,000.00 of credit memos against the approximately $24,000.00 KD Sales owed T & S. Based on the math, the court ordered T & S to pay KD Sales about $24,000.00.
The circuit court directed KD Sales’s lawyer to “submit an order ... in conformity with this letter opinion.” The court also offered to arrange a conference call “[i]f there are any questions concerning the Court’s ruling.” The record shows no action of any kind until the court signed and filed the judgment prepared by KD Sales’s lawyer. The judgment does not contain the mistaken specific finding about T & S issuing the credit memos. Instead, the judgment simply found that T & S sold defective parts without elaboration. Nor does the judgment reflect submission to T & S’s lawyer for approval as to form. Although this submission is required by Rule 58 and usually done, it was not directed by the circuit court here. Once the court entered its judgment, T & S did not use the option created by Rule of Civil Procedure 52(b)(1) to move for additional findings or amended findings. T & S appeals.
The Law. There is a preliminary point. KD Sales urges us to affirm because T & S never raised the clearly erroneous finding to the circuit court. This omission, however, is not dispositive. Rule 52(b)(2) authorizes T & S’s challenge to the sufficiency of the evidence supporting the circuit court’s findings even though T & S neither objected to them nor 14moved to amend them in the circuit court. Cogburn v. Wolfenbarger, 85 Ark.App. 206, 211, 148 S.W.3d 787, 791 (2004). With this threshold issue resolved, we turn to the question presented.
When may an appellate court look behind a judgment to findings in an unincorporated letter opinion in deciding the case on appeal? The precedent covers two situations. The first is where the circuit court’s judgment contains a gap that can be filled by the court’s letter opinion. Bishop v. Bishop, 98 Ark.App. 111, 250 S.W.3d 570 (2007); Guest v. San Pedro, 70 Ark.App. 389, 19 S.W.3d 62 (2000). The divorced Bishops, for example, were wrangling over the husband’s petition to decrease his alimony and child-support obligations. The circuit court entered an order, which failed to recite the presumptively correct chart amount of child support. Mr. Bishop appealed. In affirming the circuit court’s decision on support, our court looked behind the circuit court’s order to its earlier letter opinions. In those letters, the circuit court had discussed the proper chart amount in detail. 98 Ark. App. at 113, 250 S.W.3d at 571-72.
In Moses u Dautartas this court faced a different situation. 53 ArkApp. 242, 922 S.W.2d 345 (1996). Dautartas claimed part of the Moseses’ land by adverse possession. The chancery court found for Dautartas, and our court, by a vote of 4-2, affirmed. The dissent argued, however, that we should reverse and remand because of an inconsistency between the court’s letter opinion and its judgment. The court’s letter opinion found that Dau-tartas had proved adverse possession of an area north of a certain structure, while the judgment contained a legal description which gave Dautartas land south of the structure. In responding to the |5dissent on the inconsistency issue, this court held:
The decisions, opinions, and findings of a court do not constitute a judgment or decree. They merely form the bases upon which the judgment or decree is subsequently to be rendered and are not conclusive unless incorporated in a judgment or a judgment be entered thereon. They are more in the nature of the verdict óf a jury and no more a judgment than such a verdict.
53 Ark.App. at 247, 922 S.W.2d at 348 (citations omitted). Having concluded that the letter opinion was not a judgment, this court confined its review to the judgment. Moses holds this: if a circuit court’s unincorporated letter opinion and its judgment- conflict, then the judgment controls and the appellate, court may not look behind it. 53 Ark.App. at 247, 922 S.W.2d at 348.
This ease is not exactly like Moses. Here the circuit court’s letter opinion and judgment do not conflict. The court’s judgment on defect is consistent with its letter-opinion findings. The bar against considering the letter opinion therefore does not exist. But this case is not exactly like Bishop either. There is no obvious legal gap in this judgment. The clear path allowing consideration of the letter opinion to supplement the judgment therefore does not exist either.
This case seems to present a choice. We could expand Moses to cover this situation, and refuse to consider the clearly erroneous finding in the letter opinion. Of course a presumption of correctness attends this judgment even though it contains no specific findings on defect. McCracken v. McCracken, 2009 Ark. App. 758, at 7, 358 S.W.3d 474, 479. But 16resting on that presumption here would mean pretending that the troubling finding in the letter opinion does not exist. Or we could expand Bishop, affirming or reversing the judgment outright as supplemented by the letter opinion. But this conclusion would allow an appellate court to look behind the judgment in deciding any case where an unincorporated letter opinion is consistent with the judgment. Taking that step would give insufficient weight to the circuit court’s final word.
Both Moses and Bishop must guide our decision, but this case falls between these precedents. Here the circuit court did not incorporate its findings from the letter opinion. It requested a judgment from KD Sales’s lawyer, however, that conformed to its letter opinion. The record shows no action in the case between the letter opinion and the judgment — no motion papers, or exchange of letters between counsel and the court, about the findings. The judgment does not reflect submission for approval as to form by T & S’s lawyer. Defect was the fighting issue. Considering all these circumstances, we hold that we should not ignore the letter opinion’s clearly erroneous finding on defect or ignore that the judgment must have been “entered thereon” even though it did not so state. Moses, 53 Ark.App. at 247, 922 S.W.2d at 348. Though it is not a gap that must be filled like in Bishop, the absence of a specific finding on defect in the judgment and the presence of a specific finding that was clearly wrong in the letter opinion casts doubt over the circuit court’s decision on the critical issue. Cf. Bishop, 98 Ark. App. at 113, 250 S.W.3d at 571-72.
Unlike in Moses and Bishop, we do not decide the merits at this point. Instead, we reverse the judgment and remand for clarification. We remand, rather than reaching the 17merits now, for several reasons. The circuit court may have simply reversed the parties’ names in the erroneous finding. That court is entitled to the opportunity to clarify its findings in what was essentially a swearing-match. This is the kind of case in which the circuit court’s weighing of the evidence and evaluations of credibility are entitled to substantial deference on appeal. Ark. R. Civ. P. 52(a); City of Little Rock v. Rhee, 375 Ark. 491, 497, 292 S.W.3d 292, 296 (2009). Our holding costs these parties immediate finality in their dispute. But it charts a middle course between Moses and Bishop. This course, we conclude, gives the proper respect to the letter of the circuit court’s judgment, while not ignoring the undisputed and critical factual error in the genesis of that judgment. If either T & S or KD Sales sees error in the circuit court’s clarified judgment, then that party may appeal.
Reversed and remanded for clarification.
HART, GLADWIN, and GLOVER, JJ„ agree.
GRUBER and HENRY, JJ., dissent.
Moses relied upon two supreme court decisions about what constitutes a judgment: Mason v. Mason, 319 Ark. 722, 733-34, 895 S.W.2d 513, 518-19 (1995) and Thomas v. McElroy, 243 Ark. 465, 468-71, 420 S.W.2d 530, 532-34 (1967). Neither of those cases involved an inconsistent letter opinion. | [
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JIM GUNTER, Justice.
liAppellant appeals his convictions for capital murder and kidnapping, for which he received sentences of death and life imprisonment, respectively. On appeal, he argues that the circuit court erred in (1) denying his motion for directed verdict, (2) refusing to declare Christina Head an accomplice as a matter of law and refusing to submit the issue to the jury, (3) denying his motion to quash the felony information based on the unconstitutionality of the death penalty statute, and (4) allowing prosecutorial misconduct. Because this is a criminal appeal in which the death penalty has been imposed, this court has jurisdiction pursuant to Ark. Sup. Ct. R. 1 — 2(a)(2). We affirm.
On October 15, 2008, several friends on a mud ride in a rural, wooded area of Saline County discovered the body of Derrick Utsey in the middle of a logging road. Detective Aaron Washington of the Saline County Sheriffs Department testified that he observed the victim’s body at the crime scene. He noticed that the victim was not wearing shoes; his |2pockets were turned out; his shirt was pulled up to his chest; he had black electrical tape and a sock around his neck; and he had a gunshot wound to the left side of his head. Detective Washington stated that he found footprints and tire-print impressions near the body, as well as several beer cans. There was no identification, wallet, or money on the victim. Once the body had been identified, the investigation focused on who the last person was to see him. Detective Washington testified that, based on a tip from an FBI agent, he contacted David Head, the father of Christina Head, who stated that his daughter was appellant Jason Taylor’s girlfriend and that she had information about the crime. Detective Washington stated that he spoke to Christina on November 6, 2008. He stated that during the meeting, she was emotional and fearful. She told the detective that she and appellant had met Utsey in the parking lot of a Little Rock motel and that appellant had given Utsey a ride. She said that several hours later, appellant contacted her and told her he had shot Utsey. She gave a description of Utsey that matched the body found in the woods. Detective Washington secured an arrest warrant for appellant based on Head’s statement.
Detective Washington interviewed appellant on November 10 following his arrest. The detective testified that appellant freely and voluntarily waived his right to an attorney and that he did not appear to be under the influence of drugs or alcohol at the time of his statement. During that statement, appellant admitted that the property where the body was found was on his deer lease.
During her testimony, Christina Head identified appellant in the courtroom and stated that in October 2008, she had been his live-in girlfriend. She explained that on October 12, |s2008, she stayed at the Best Value Inn on Scott Hamilton in Little Rock after she and appellant had an argument. Head produced a receipt from that motel stay, and both parties stipulated that the receipt was accurate. Head stated that while she was staying at the motel, appellant came to see her. She identified the victim, Derrick Utsey, as a man whom she saw in the parking lot of the motel prior to appellant’s arrival. Later, she saw the two men talking and heard Utsey ask for a ride. She stated that she also heard Utsey ask for drugs. She testified that she overheard Utsey tell appellant that he had $500 in his pocket. She said that appellant was driving a black truck that night that he had borrowed from Brad Carter. She stated that later, appellant and Utsey left in the truck. She said that a couple of hours later, appellant called her and asked her to gather all her stuff and come meet him. Head testified that she did so and that appellant was still in the same truck but that Brad Carter was also with him. She described appellant as “shocked” and “frightened.” Utsey was no longer present. She testified that appellant made several incriminating statements to her that night after he had returned, including that he had shot the victim after Brad had beat him. Appellant stated that they had tied the man up but did not explain how he was restrained. Appellant also admitted to Head that they dumped the victim in the woods. Appellant gave her several explanations for his actions, including that he thought Utsey had robbed him, that Utsey had “screwed” him out of some money, and that he thought Utsey was “messing” with her. Appellant described how Utsey begged for his life. Appellant stated that he and Brad had burned their clothes at Buster Logan’s house. Appellant also showed Head the gun he said he had used to shoot Utsey. She described the gun as an “old western looking” revolver.
[Head testified that appellant wanted her to secure another motel room, so she checked into the Executive Inn in the early morning hours of October 14. Head produced a receipt for that stay as well. After checking in, she and appellant dropped the truck off at Buster Logan’s house. She described how appellant cleaned out the interior of the truck. She stated that although appellant told her later that he had disposed of the gun in a lake, he eventually admitted that he had kept the gun and it was on him when he was pulled over for speeding. She said that he admitted throwing the gun out the window of the moving vehicle.
Head explained that she had confessed to her father what she had seen and what appellant had told her, and her father convinced her to go to authorities. At the time she gave her statement to police, Head was living with appellant and his family. She stated that she was scared but in love with him. After giving her statement, she moved in with a friend. She testified that she and appellant continued to have contact after he was arrested. The two wrote many letters to each other during that time, which Head kept. The court allowed into evidence the letters appellant had written to Head during his incarceration. As to the content of the letters, appellant asked Head not to testify in court or else he will “get the death sentence,” asked her not to “say something stupid to the police or [his] lawyer,” mentioned the two getting married or signed the letters as her husband, told her to “fix what you said to the police,” said that the reason he committed the crime was “because I love you and I thought he was fucking with you,” encouraged her to blame Brad Carter for the murder, and stated that he will probably kill himself. Head stated that she felt pressured by appellant’s letters. She explained that he had told her to give him an alibi if questioned by the police.
[Head stated that she was asked to talk with appellant’s attorney. She testified that during that interview, she and the attorney were the only people present. She explained that she and appellant’s attorney went over appellant’s statements and that she agreed with everything that was said because she was scared. She stated that she did not swear or take an oath to tell the truth when she met with appellant’s attorney. She testified that her statement to the defense attorney was not truthful. On cross-examination, Head stated that although her statement to appellant’s attorney was notarized, she did not realize she was giving a sworn statement. Head admitted she wrote appellant several letters while he was incarcerated stating that she had lied to police about his involvement in the crime. Head claimed she wrote those things because she loved appellant and because she was scared.
Brad Carter, a codefendant in the case, testified on behalf of the State. He admitted to being a convicted felon and being incarcerated since November 2008 for the murder of Utsey. He stated he had not been promised any leniency by the State in exchange for his testimony. He stated that he had known appellant for a couple of years and had bought drugs from him. Carter admitted to using methamphetamine on October 13, 2008. In fact, he claimed to have been up for several days due to his drug use. Carter testified that he let appellant borrow a black Chevrolet S10 truck that day (that Carter had borrowed from his friend James Bennett two weeks earlier) and that appellant also asked that day to borrow a gun (that Carter had borrowed from Josh Sidney). Carter said that he first saw appellant on October 13 at Buster Logan’s house, but that appellant dropped Carter off at Gus Bocksnick’s home around noon that day. Appellant left in the truck, and Carter was at Gus’s home for height to ten hours. Carter explained that appellant came back to the house around midnight and picked up the gun, saying he had to go kill someone. Carter stated that he did not believe appellant at first but that when he came back a few minutes later and said he had “a nigger tied up in the back of the truck,” Carter went outside. Carter observed a black man in the bed of the truck who was tied at the feet and wrists with rope. Carter testified that he had never seen the man before and did not know him but that he agreed to drive the truck. He stated that he was “anxious” and “curious.” He heard the victim beg to be let go. Carter stated that appellant told the victim to “shut up” and “be quiet.” Carter described how they traveled to Buster Logan’s house where appellant picked up electrical tape and a sock. Appellant gagged Utsey with the sock and used the tape to secure it. Carter stated that he drove down a gravel road into the woods and that appellant removed the victim from the truck bed. Carter removed the gag from the victim’s mouth, and Utsey began begging for his life and talking about his kids. Carter stated that before he could get an explanation about what was going on, appellant shot Utsey in the head. Carter testified that appellant then dragged the victim into the brush and shot him again. Carter said that appellant never spoke before or during the shooting. Carter and appellant then drove back to Logan’s house to get a flashlight and blanket to hide the body before deer hunters found it. When they arrived back at the crime scene, Carter stated that appellant rolled the body into the blanket and placed it back in the bed of the truck. They drove a few miles to another wooded area and dumped the body. Carter testified that appellant burned the clothes they were wearing, along with the blanket and the bed liner. Carter stated that they then drove to the motel where Christina Head was ^staying and spent the night. Carter stated that after his arrest and subsequent confession, he took the police to the scene where Utsey was shot.
Dr. Frank Peretti, Associate Medical Examiner at the Arkansas State Crime Lab, testified regarding the autopsy results. Dr. Peretti described the body as that of a twenty-eight-year-old male with two gunshot wounds to his head, one to the left forehead and one on the back left side. Both gunshot wounds were close-contact wounds, which Dr. Peretti stated meant the gun was held closely to the skin. Either gunshot wound, standing alone, would be fatal. There were no exit wounds, and the doctor recovered two bullets from the victim. Dr. Peretti explained that black electrical tape was fastened tightly around the victim’s neck attached to a blood-soaked sock near his mouth. There were several abrasions on the victim’s body, illustrating he had been dragged postmortem. Evidence of a contusion on the victim’s left posterior thyroid gland established that he had been strangled while he was still alive. Dr. Peretti stated that although fatal, neither gunshot wound would have killed the victim instantly. Rather, death would have been imminent within a few minutes. Dr. Per-etti stated that his conclusion was that the cause of death was gunshot wounds to the head with strangulation.
Arkansas State Police Officer Elvis Mull testified that on October 22, 2008, he was observing traffic on State Highway 367 near Arch Street when a white vehicle passed him driving over the posted speed limit. He initiated a traffic stop, but prior to pulling the car over, he discovered a handgun in the roadway. The driver of the speeding vehicle was cited for speeding. The passenger in the car was appellant. Officer Mull asked appellant about the Ishandgun, and he responded that a friend had left it in the vehicle and that because he did not want to “be around it,” he threw it out of the moving vehicle. Appellant admitted that it had been in his possession. Officer Mull testified that the gun was recovered after it had been run over by another vehicle and broken into pieces.
James Bennett testified that he knew Brad Carter and that the two of them had switched vehicles prior to October 2008. When Carter borrowed Bennett’s black S10, it had a bed liner and tailgate. When Carter returned it, those items were missing. Additionally, the truck was covered in mud and the tires were “blown.” Bennett stated that Carter explained the condition of the truck by saying that he had gone deer hunting and gotten blood in the bed of the truck.
Megan Crews testified that she was living with her boyfriend, Gus Boeksnick, in October 2008 when appellant and Carter came by the house. She stated that Carter stayed at the house for a while to sleep while appellant left. She testified that when appellant returned a few hours later to get Carter, she overheard appellant say “come on, Brad, I’m fixing to go kill this guy.” Gus Boeksnick testified that he recalled appellant and Carter being at his home in October 2008. He stated that appellant left after he dropped Carter off at the house.
Robert Wayne Burnett of the Saline County Sheriffs Department testified that he assisted in the homicide investigation by securing a dark-colored Chevrolet S10 pickup truck from James Bennett after being informed the truck might have been used during the commission of the crime. The truck was missing its tailgate and bed liner. Bobby Humphries, latent-print examiner with the state' crime lab, testified that he evaluated the tire impression 19from the scene and the tires on the Chevy S10 and concluded that the S10 could have made the impression found at the scene. Although he could not exclude all other tires, the rear-left tire on the S10 had a defect that caused a significant pattern that was visible in the impression.
Steve Hargis, firearms examiner with the state crime lab, testified that the gun that was recovered from Officer Mull was so damaged that it could not be test fired and that the complete serial number could not be obtained. Hargis stated that the bullets recovered from the victim were both feed from a gun barrel that had been manufactured with six lands and six grooves with a right twist. Hargis explained that gun manufacturers cut grooves into the barrel of a firearm so that it could perform properly. Although unable to test fire the firearm in this case, Hargis was able to compare the grooves on the bullets and the grooves on the firearm and determined that the grooves in the bullets recovered from the victim were consistent with the grooves cut into the barrel of the firearm recovered by Officer Mull. However, Hargis stated he could not state with certainty that those bullets were fired from that gun because the groove pattern was a common pattern used by multiple manufacturers for .22-caliber pistols.
Forensic investigators from the state crime lab testified that transfer DNA in the form of skin cells were found on the barrel of the .22 revolver recovered by Officer Mull that matched appellant within all scientific certainty; that Carter and the victim were excluded as contributors of the DNA profile found on the gun; and that DNA in the form of blood found on the bumper of the S10 truck matched the victim within all scientific certainty. The | inforensic examiner testified that the term “within all scientific certainty” meant the results were greater than one in three hundred billion.
The case was submitted to the jury, which found appellant guilty of capital murder and kidnapping but rejected the aggravated-robbery charge. The jury sentenced appellant to death by lethal injection on the capital-murder conviction and life imprisonment on the kidnapping conviction.
I. Sufficiency of the Evidence
For his first point on appeal, appellant asserts that the circuit court erred in denying his motions for directed verdict on both the charge of capital murder and kidnapping. Specifically, appellant contends that the State failed to sufficiently prove that appellant interfered substantially with the victim’s liberty or used force to restrain the victim to sustain a conviction for kidnapping and that the State failed to provide sufficient evidence of premeditation and deliberation to support the capital-murder charge. Appellant asserts that the State relied on the uncorroborated testimony of the codefendant, Bradley Carter, who appellant maintains was not credible.
This court treats a motion for directed verdict as a challenge to the sufficiency of the evidence. Tubbs v. State, 370 Ark. 47, 257 S.W.3d 47 (2007). In reviewing a challenge to the sufficiency of the evidence, this court determines whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. This |n court views the evidence in the light most favorable to the verdict, and only evidence supporting the verdict will be considered. Id.
Although circumstantial evidence may provide a basis to support a conviction, it must be consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion. Morgan v. State, 2009 Ark. 257, 308 S.W.3d 147. Whether the evidence excludes every other hypothesis is left to the jury to decide. Id. The credibility of witnesses is an issue for the jury and not the court. Id. The trier of fact is free to believe all or part of any witness’s testimony and may resolve questions of conflicting testimony and inconsistent evidence. Id.
When accomplice testimony is considered in reaching a verdict, Arkansas law provides that a person caniiot be convicted based upon the testimony of an accomplice “unless corroborated by other evidence tending to connect the defendant ... with the commission of the offense.” ArkCode Ann. § 16-89-lll(e)(l)(A) (Repl. 2005). Furthermore, “corroboration is not sufficient if it merely shows that the offense was committed and the circumstances thereof.” ArkCode Ann. § 16-89-111(e)(1)(B) (Repl.2005). Corroborating evidence need not establish each element of an offense or corroborate every detail of the accomplice testimony. MacKool v. State, 365 Ark. 416, 231 S.W.3d 676 (2006). It must be evidence of a substantive nature since it must be directed toward proving the connection of the accused with a crime and not toward corroborating the accomplice testimony. Stephenson v. State, 373 Ark. 134, 282 S.W.3d 772 (2008). The corroborating evidence need not be sufficient standing alone to sustain the conviction, but it must, independent from that of the [ ^accomplice, tend to connect to a substantial degree the accused with the commission of the crime. Id. The test is whether, if the testimony of the accomplice were completely eliminated from the case, the other evidence independently establishes the crime and tends to connect the accused with its commission. Id.
It is well settled that the acts, conduct, and declarations of the accused, before or after the crime, may furnish necessary corroboration. MacKool, 365 Ark. at 433, 231 S.W.3d at 690-91. Moreover, we have held that a family member’s testimony that he or she was asked to lie about an appellant’s whereabouts during the commission of a crime is sufficient to connect the appellant to the crimes as well as corroborate an accomplice’s testimony. Stephenson, 373 Ark. at 139, 282 S.W.3d at 777. We have further held that the jury is not required to lay aside its common sense in evaluating the ordinary affairs of life. Id.
Appellant first argues that the State failed to present sufficient evidence to support the jury’s finding that appellant committed the felony of kidnapping. A person commits kidnapping if, without consent, he restrains another person so as to interfere substantially with the other person’s liberty with the purpose of facilitating the commission of any felony; facilitating flight after the commission of any felony; inflicting physical injury upon the other person; or terrorizing the other person. ArkCode Ann. § 5-11-102 (Repl. 2006).
While it is true that the. State relied heavily on the codefendant’s testimony— who testified that he saw the victim bound with rope in the bed of the truck — to support the kidnapping charge, we are satisfied that the State provided sufficient corroborating evidence 11sto support Carter’s testimony. Appellant’s girlfriend, Christina Head, testified that the appellant admitted to her that he had tied up the victim. Additionally, the victim was found with black electrical tape wound around his neck attached to a sock that had been used as a gag, and the medical examiner testified that the victim had been strangled and gagged before his death. The testimony of both Megan Crews and Gus Bock-snick was consistent with Carter’s testimony that appellant had dropped him at Bocksnick’s home, left, and returned later. Megan also overheard appellant say that he was going to kill “this guy,” which further substantiated Carter’s same testimony. Moreover, blood was found on the bumper of the truck appellant was driving that night and, when returned to its owner, the truck was missing its bed liner. Taken together, these facts support Carter’s testimony that the victim was restrained in the bed of the truck. Additionally, Head testified that appellant asked her to lie about the events of the night in question, provide him an alibi, and to implicate Carter. Letters appellant wrote to Head while he was incarcerated illustrate that he was pressuring Head regarding her statements to police. Appellant’s conduct and declarations after the crime are indicative of his guilt and can be used for corroborating the testimony of the accomplice. We affirm appellant’s kidnapping conviction because there is sufficient evidence to corroborate Carter’s testimony that appellant restrained the victim to the point of interfering with his liberty.
Appellant also argues that the State failed to prove sufficient evidence of premeditation and deliberation to support the capital-murder conviction. The State submitted to the jury |14two theories on which it could find appellant committed capital murder — felony murder and premeditated and deliberated murder. With regard to felony murder, a person commits capital murder if, acting alone or with another person, he commits or attempts to commit kidnapping, and in the course of and in furtherance of the kidnapping or in immediate flight therefrom, he or an accomplice causes the death of any person under circumstances manifesting extreme indifference to the value of human life. Ark.Code Ann. § 5 — 10—101(a)(1) (Repl. 2006). In addition, a person commits capital murder if, with the premeditated and deliberated purpose of causing the death of another person, he causes the death of any person. Ark.Code Ann. § 5-10-101(a)(4) (Repl.2006). Premeditation and deliberation may be formed in an instant. Marcyniuk v. State, 2010 Ark. 257, 378 S.W.3d 243. Intent can rarely be proven by direct evidence; however, a jury can infer premeditation and deliberation from circumstantial evidence, such as the type and character of the weapon used; the nature, extent, and location of wounds inflicted; and the conduct of the accused. Id.
Because the capital-murder charge was submitted to the jury as a general verdict, the jury did not specify if it had found upon the basis of felony murder, premeditated and deliberated murder, or both. Moreover, appellant fails in his brief to challenge the sufficiency of the capital-murder conviction on the basis of felony murder. However, we will affirm a general verdict without regard to the State’s proof on a particular element of a charge if there is sufficient evidence to convict on the alternative ground. Williams v. State, 347 Ark. 728, 67 S.W.3d 548 (2002). Thus, we may affirm the capital-murder conviction if there was sufficient |1fievidence to prove appellant, with premeditation and deliberation, caused the death of the victim.
Sufficient evidence supports the jury’s verdict on premeditated and deliberated capital murder. The majority of evidence to prove premeditation and deliberation is provided via accomplice testimony from Carter, but that testimony is corroborated by forensic evidence and testimony from other witnesses. The State established that appellant borrowed a truck from Carter on October 13, 2008, then dropped Carter off at Gus Bocksnick’s house for several hours. Appellant went to the motel where his girlfriend, Christina Head, was staying and encountered the victim in the parking lot. Head testified that appellant and the victim left the motel in order to purchase drugs. Appellant returned to Bocksnick’s house and borrowed a gun from Carter. Carter and Megan Crews heard appellant say he was going to kill someone. Appellant returned fifteen minutes later and picked up Carter, who saw the victim bound in the bed of the truck. Carter and appellant drove to Buster Logan’s house, where the appellant picked up black electrical tape. Using the tape and a sock, appellant gagged the victim. Carter and appellant then drove approximately ten miles away to a wooded location. Carter testified that appellant held a gun on the victim during the drive. Once they arrived, appellant shot the victim twice in the head as he begged for his life. The two left the victim in the woods, and they drove back to Logan’s house, where appellant obtained a flashlight and blanket. Returning to the murder site, appellant and Carter moved the body to another remote, wooded location. Next, they burned their clothes. Appellant then picked up his | ^girlfriend, admitted to her that he had shot the victim, and moved to another motel. Head testified that she saw appellant cleaning out the truck. The truck was later returned missing a bed liner and the tailgate. Head testified that appellant asked her to provide him an alibi for the night of the incident and to implicate Carter as the shooter. Appellant wrote letters to Head while he was incarcerated where he encouraged her to “fix” what she told police.
Forensic evidence corroborates much of Carter’s testimony — the victim was found in a remote, wooded area with two gunshot wounds to his head and black electrical tape with a sock was wrapped around his neck. The victim’s blood was found on the bumper of the truck appellant was driving that night. Furthermore, appellant’s DNA was found on a gun that could have fired the bullets recovered from the victim. Additionally, testimonial evidence supports the finding of premeditation and deliberation. Megan Crews corroborated that appellant stated he needed a gun to shoot someone. Head testified that appellant told her he shot the victim and showed her the gun he had used. Her description of the murder weapon was consistent with the gun that was recovered. Taken as a whole, the evidence is sufficient to prove appellant, with premeditation and deliberation, caused the death of the victim.
II. Co-Accomplice Liability
Appellant’s third argument on appeal is that the circuit court erred in refusing to declare appellant’s girlfriend as an accomplice and in refusing to instruct the jury that it could find she was an accomplice so that her testimony would require corroboration.
For an individual to be an accomplice, he must engage in one of the activities articulated in Ark. Code Ann. § 5-2-408 (Repl.2006):
|[7(a) A person is an accomplice of another person in the commission of an offense if, with the purpose of promoting or facilitating the commission of an offense, the person:
(1) Solicits, advises, encourages, or coerces the other person to commit the offense;
(2) Aids, agrees to aid, or attempts to aid the other person in planning or committing the offense; or
(3) Having a legal duty to prevent the commission of the offense, fails to make a proper effort to prevent the commission of the offense.
(b) When causing a particular result is an element of an offense, a person is an accomplice of another person in the commission of that offense if, acting with respect to that particular result with the kind of culpable mental state sufficient for the commission of the offense, the person:
(1) Solicits, advises, encourages, or coerces the other person to engage in the conduct causing the particular result;
(2) Aids, agrees to aid, or attempts to aid the other person in. planning or engaging in the conduct causing the particular result; or
(3) Having a legal duty to prevent the conduct causing the particular result, fails to make a proper effort to prevent the conduct causing the particular result.
Mere presence at the crime scene or failure to inform law enforcement officers of a crime does not make one an accomplice as a matter of law. Cook v. State, 350 Ark. 398, 86 S.W.3d 916 (2002). Relevant factors in determining the connection of an accomplice to a crime are the presence of the accused in proximity to the crime, the opportunity to commit the crime, and an association with a person involved in the crime in a manner suggestive of joint participation. Raynor v.'State, 343 Ark. 575, 36 S.W.3d 315 (2001).
The appellant bears the burden of proving that a witness is an accomplice whose testimony must be corroborated. Cook, supra. A defendant must either have the circuit court declare a witness to be an accomplice as a matter of law or submit the issue to the jury for determination. Price v. State, 365 Ark. 25, 223 S.W.3d 817 (2006). The law is well settled that a witness’s status as an accomplice is a mixed question of law and fact. McGehee v. State, 348 Ark. 395, 72 S.W.3d 867 (2002). However, when the facts show conclusively that the witness is an accomplice, the issue may be decided as a matter of law. Id. When the accomplice status instead presents- issues of facts, the question is submitted to the jury. Id. An instruction should only be excluded when there is no rational basis for giving it. Grillot v. State, 353 Ark. 294, 107 S.W.3d 136 (2003). A circuit court’s ruling on whether to submit a jury instruction will not be reversed absent an abuse of discretion. Id.
We affirm on this point because the circuit court did not abuse its discretion in determining there was no rational basis for finding Christina Head was an accomplice. No facts were presented that she solicited, advised, encouraged, or coerced appellant to kidnap or murder the victim. There was no evidence that she aided or agreed to aid him in the planning or commission of the crime. In fact, there is no evidence to support that she knew about the crime until after it had been committed. No testimony or evidence suggests Head was at the crime scene. All incriminating actions by Head occurred after the crime was committed, such as assisting the appellant in moving to a different hotel and being present when he cleaned out the truck. At most, her actions establish that she was an accessory after the fact and possibly hindered the apprehension and prosecution of appellant. There is no evidence to support a finding of accomplice liability. Therefore, the circuit court did not abuse its discretion in refusing to find Head was an accomplice and in refusing to instruct the jury that it could do so.
11flIII. Constitutionality of the Death Penalty
Appellant’s next argument is that the circuit court erred by denying his pretrial motion to quash the criminal information, resulting in a violation of appellant’s fourth, fifth, sixth, eighth, and fourteenth amendment rights. Specifically, he contends that the death penalty is, per se and as applied to him, cruel, unusual, and excessive punishment; that our state statutory capital-punishment scheme is overly broad, vague, and allows for an arbitrary and capricious imposition of death; and that our state statutory capital-punishment scheme is unconstitutional because it requires a mandatory imposition of death and lacks sufficient constitutionally required standards.
Appellant’s assertions under this point are mostly public-policy arguments against the death penalty, and he cites only one Arkansas case in support of his contentions. This court need not address an argument unsupported by citation to authority or convincing argument, and we could reject this argument for this reason alone. See Harrison v. State, 371 Ark. 652, 269 S.W.3d 321 (2007). However, as to the merits of appellant’s argument that the death penalty violates the Eighth Amendment’s prohibition against cruel and unusual punishment, we have upheld the death penalty against this same argument many times. See Newman v. State, 353 Ark. 258, 106 S.W.3d 438 (2003); Echols v. State, 326 Ark. 917, 936 S.W.2d 509 (1996); Fairchild v. State, 284 Ark. 289, 681 S.W.2d 380 (1984). Appellant has provided no basis to reverse our precedent on this point.
Appellant also argues on appeal that the death penalty is unconstitutional as applied to his specific case. However, he failed to preserve this argument for our review. His motions |2nto quash did not cover his “as applied” argument (those motions were filed before trial and the facts against him had not yet been established), and he failed to make a motion to that effect after the State rested or before the case was submitted to the jury. Rather, his directed-verdict motions focused on the sufficiency of the evidence. We do not address arguments raised for the first time on appeal. Even constitutional arguments are waived on appeal when not raised below. Springs v. State, 368 Ark. 256, 244 S.W.3d 683 (2006). Furthermore, appellant again fails to cite one Arkansas case on point or provide any convincing argument to persuade this court. Therefore, we reject his arguments for failure to provide convincing argument or citation to authority as well. See Harrison, supra.
Appellant’s final constitutional argument focuses on our state statutes regarding the implementation of the death penalty. None of his arguments have merit as all the contentions he makes have been addressed and rejected in prior cases, including: that our death-penalty |⅞1 statutes are not unconstitutional for lack of comparative proportionality, Williams v. State, 321 Ark. 344, 902 S.W.2d 767 (1995); are not void for vagueness, are not overly broad, and do not unconstitutionally overlap the first-degree murder statute, Echols, 326 Ark. at 982-84, 936 S.W.2d at 543-44; and our capital-murder sentencing statutes do not impose a mandatory death sentence because the jury is allowed to sentence the defendant to life imprisonment without parole, Nooner v. State, 322 Ark. 87, 907 S.W.2d 677 (1995).
IV. Prosecutorial Misconduct
Appellant’s final point on appeal is that the prosecutor in his case “took improper actions that both rendered Appellant’s trial and sentencing fundamentally unfair and substantially risked arbitrary infliction of the death penalty.” In support of this contention, appellant claims the State was allowed to “continually” lead its witnesses, make improper statements during closing, and mislead the jury as to whether a plea bargain was imminent for the codefendant. For the following reasons, appellant’s argument is not persuasive.
First, for a cumulative-error argument with regard to prosecutorial misconduct to be upheld on appeal, the appellant must show that there were objections to the alleged errors individually and that a cumulative-error objection was made to the circuit court and a ruling obtained. Brown v. State, 368 Ark. 344, 246 S.W.3d 414 (2007). No such ruling was made here, and we can decline to address appellant’s argument on that basis. Id.
Nevertheless, as to the leading questions, appellant concedes in his brief that he oft objected to the State leading its witnesses and that the circuit court sustained those objections. Appellant maintains that the circuit court should have, upon its own motion, recognized the | ^excessive leading by the State and granted a mistrial. This appears to be a Wicks — type argument, for which appellant has provided no basis. See Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980). Appellant never moved for a mistrial on this basis, and his argument does not fall within any of the enumerated exceptions under Wicks; therefore, this argument is not preserved for our review.
Appellant also argues that statements made by the prosecutor during closing, in regard to lesser-included offenses and appellant’s inconsistent explanations, rose to the level of prosecutorial misconduct. Specifically, he maintains that the prosecutor improperly commented on his defense of general denial and his decision not to testify. However, appellant failed to object on this basis at trial. Early in the State’s closing argument, appellant’s counsel objected without specifying his basis. Instead, his counsel said “I don’t think I said that.” The court reminded the jury it was instructed that remarks by attorneys are not evidence. After that, appellant’s counsel never again objected during the prosecutor’s closing. It is appellant’s responsibility to obtain a clear ruling from the court, and we do not consider issues where the appellant has failed to do so. Burton v. State, 327 Ark. 65, 937 S.W.2d 634 (1997). Without a specific, contemporaneous objection, this point is not preserved for review.
On the merits, however, appellant’s argument still fails. We have made it clear that a mistrial is a drastic remedy that should only be granted when justice cannot be served by continuing at trial, or when the error cannot be cured by an instruction or admonishment. Jackson v. State, 368 Ark. 610, 249 S.W.3d 127 (2007). We have also explained that “some leeway is given to counsel in closing argument and that counsel are free to argue every [^plausible inference which can be drawn from the testimony.” Newman v. State, 353 Ark. 258, 290, 106 S.W.3d 438, 459 (2003). Therefore, a trial court is given broad discretion in controlling the argu- merits of counsel, such that, absent an abuse of that discretion, the trial court’s decision will not be disturbed on appeal. Jackson, 368 Ark. at 615-16, 249 S.W.3d at 130. The prosecutor’s comments during closing regarding inconsistent statements given by appellant were related to evidence before the jury, including the various inconsistent explanations appellant gave to police and his girlfriend regarding what happened on the night in question. Moreover, the prosecutor’s comments with regard to the lesser-included offenses occurred during rebuttal after the defense had asked the jury to convict on a lesser offense even though the defense had also argued that appellant’s defense was that he had nothing to do with the crime. The prosecutor noted that appellant’s defense was general denial, and that if the jury believed him, then it could not convict on any of the charges. We are not convinced that any misconduct here rose to the level to require the circuit court to sua sponte grant a mistrial.
For his final prosecutorial-misconduct argument, appellant maintains that the State failed to inform the jury that the codefendant, Carter, would receive a favorable plea bargain in exchange for his testimony against appellant. At the time of appellant’s trial, Carter did not have a plea arrangement with the State. Everything he said could have been used against him. Appellant provides no citation to authority to support his argument that the State had any duty in this regard or that the circuit court erred in any way. This court need not address an ^argument unsupported by citation to authority or convincing argument, and we reject this argument for this reason alone. See Harrison, supra.
Y. Rule i-3(i) & Rule 10 Compliance
The record in this case has been reviewed pursuant to Rule 4 — 3(i) of the Rules of the Arkansas Supreme Court, Ark.Code Ann. § 16-91-113(a), and Rule 10 of the Rules of Appellate Procedure-Criminal as required by law, and no reversible error has been found. We have considered each of the factors enumerated in Rule 10 and found no error.
Affirmed.
DANIELSON, J., concurs in part; dissents in part.
. Mindful of our obligation under Rule 10 of the Arkansas Rules of Appellate Procedure-Criminal, however, we note that there is no merit to appellant’s contention. The jury here was instructed on the elements of capital murder and the appropriate aggravators and mitigators in applying the death penalty. Where there is substantial evidence to support the jury's finding of guilty on capital murder and one or more statutory aggravators have been proven beyond a reasonable doubt, we have held the imposition of the death penalty is not unconstitutional. See Echols, 326 Ark. at 987-88, 936 S.W.2d at 545-46. Appellant does not challenge the accuracy of the jury instructions in this case, and as explained in more detail earlier on his sufficiency point, there was substantial evidence to support his capital-murder conviction. Neither does appellant argue that there was insufficient evidence to support the jury’s finding of the statutory aggravator in this case — that the murder was committed in an especially cruel or depraved manner. That finding is supported by the evidence that the victim was bound, strangled, gagged, and driven down a dirt road into the woods where he was shot once at close range, dragged several feet, and then shot again at close range, the entire time pleading for his life. | [
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PER CURIAM.
liRichard Leon Strong was found guilty by a jury of two counts of rape, and he was sentenced to life imprisonment in the Arkansas Department of Correction on each count, with the sentences to run consecutively. We affirmed. Strong v. State, 372 Ark. 404, 277 S.W.3d 159 (2008). Appellant filed a motion to vacate judgment pursuant to Arkansas Act 1780 of 2001, which was denied by the trial court in an order entered October 16, 2009. Appellant timely filed an appeal from that order. Appellant subsequently filed the motions for access to the record and for appointment of counsel that are now before us.
Because we determine that the allegations in the petition are such that it is clear that appellant cannot prevail, we dismiss the appeal, and appellant’s motions are moot. An appeal from an order that denied a petition for postconviction relief, including an appeal from an 12order denying a petition for writ of habeas corpus based on new scientific evidence, will not be permitted to go forward where it is clear that the appellant could not prevail. Douthitt v. State, 366 Ark. 579, 237 S.W.3d 76 (2006) (per curiam); see Pierce v. State, 2009 Ark. 606, 2009 WL 4405790 (per cu-riam); Grissom v. State, 2009 Ark. 557, 2009 WL 3681389 (per curiam); Lukach v. State, 369 Ark. 475, 255 S.W.3d 832 (2007) (per curiam); Pardue v. State, 338 Ark. 606, 999 S.W.2d 198 (1999) (per curiam); Seaton v. State, 324 Ark. 236, 920 S.W.2d 13 (1996) (per curiam).
Appellant asserted the following in his motion to vacate judgment under Act 1780 of 2001, codified at Arkansas Code Annotated §§ 16-112-201 to -208 (Repl.2006): a request for further DNA testing of a sock and a bed sheet, a request for scientific comparison of fibers allegedly found at the crime scene, a claim of prosecutorial misconduct based on appellant’s allegation that the State hid evidence regarding the ownership of the sock in question, claims of due process and equal protection violations, a claim that the trial court abused its discretion, and a general claim that the evidence used to convict appellant was insufficient. Inasmuch as appellant’s identity was never at issue as required by the statute, appellant’s petition fails to satisfy a predicate requirement, and it warrants no relief.
Act 1780 of 2001 provides that a writ of habeas corpus can issue based upon new scientific evidence proving a person actually innocent of the offense for which he was convicted. Douthitt, 366 Ark. at 580, 237 S.W.3d at 77; Ark.Code Ann. § 16-112-103(a)(1) (Repl.2006); Ark.Code Ann. § 16-112-201. We have held that DNA testing of evidence |sis authorized under this statute if testing or retesting can provide materially relevant evidence that will significantly advance the defendant’s claim of innocence in light of all the evidence presented to the jury. Johnson v. State, 356 Ark. 534, 546, 157 S.W.3d 151, 161 (2004). Evidence does not have to completely exonerate the defendant in order to be “materially relevant,” but it must tend to significantly advance his claim of innocence. Id. at 546-47, 157 S.W.3d at 161 (internal citation omitted). However, Act 1780 of 2001 was amended by Arkansas Act 2250 of 2005, and, as revised, there are a number of predicate requirements that must be met before a circuit court can order that testing be done. Douthitt, 366 Ark. at 580, 237 S.W.3d at 77; Ark.Code Ann. §§ 16-112-201 to -203. Appellant’s petition fails to satisfy these.
A. DNA testing or retesting of evidence
Appellant’s petition referenced a number of common DNA tests that he requested to have performed on the evidence. Specifically, appellant sought to have the DNA found on the sock retested to determine if it matched appellant’s DNA, and he sought to have the bed sheet retested to determine if it contained any DNA whatsoever. Appellant failed, however, to satisfy the predicate requirement that the petitioner’s identity has been at issue during either the investigation or prosecution of the crime. Ark.Code Ann. § 16-112-202(7).
As we noted in appellant’s direct appeal, the fifteen-year-old victim in this case, KM., grew up in the home of appellant and his wife after she was left in their care by her biological mother. Strong, 372 Ark. at 406, 277 S.W.3d at 162. KM. lived with appellant and his wife 14from the time that she was an infant, and, though they never adopted her, KM. considered appellant and his wife to be her parents. Id. Accompanied by appellant’s three biological daughters and appellant’s mother, K.M. went to the Paragould Police Department and reported two specific instances on which appellant had raped her. Id. at 407, 277 S.W.3d at 162. The first was six days earlier, when appellant had taken her to the Sunset Motel in Paragould. Id. The date and appellant’s identity as the person who rented the room were verified at trial by the owner of the motel. Id.
The second rape occurred in appellant’s mother’s apartment three days after the first incident, and it was following this rape that appellant had cleaned himself with the sock, according to K.M. Id. at 407-08, 277 S.W.3d at 163. At trial, a DNA analyst from the Arkansas State Crime Laboratory testified that, within all scientific certainty, a DNA sample given by appellant matched DNA taken from semen found on both a sock that appellant allegedly used to clean himself after raping the victim as well as on a pair of underwear worn by K.M. that evening. Id. at 408-10, 277 S.W.3d at 163-64. The expert further testified that epithelial cells from the victim were found on the sock, but that no semen was found on the sheet taken from the bed at the crime scene. Id. In appellant’s direct appeal, we held that this scientific evidence corroborated the testimony of the victim. Id. at 409-10, 277 S.W.3d at 164.
hCIearly, it is essential to every case that the defendant be shown as the one who committed the crime. Standridge v. State, 357 Ark. 105, 113, 161 S.W.3d 815, 818 (2004). However, that connection can be inferred from all the facts and circumstances of the case. Id. Moreover, we have held that the clear identification of the defendant by the victim is sufficient to establish the defendant as the rapist. See Bryant v. State, 2010 Ark. 7, — S.W.3d
Regarding whether the identity of appellant was at issue during his trial, we note that there is a subtle, but important, distinction between allegations of rape when the attacker is someone the victim knows and when the attacker is unknown to the victim at the time. In the former situation, the questions of whether the victim was raped and whether the defendant was the rapist are inextricably intertwined, such that answering one in the affirmative requires answering the other in the affirmative. See generally Bryant, 2010 Ark. 7, at 8-9, — S.W.3d at-. In such a case, the defendant’s identity is not “at issue” for purposes of a petition under Act 1780 because the defendant was the only possible rapist, and the question was whether he committed the crime. If he did not, then no crime was committed.
Conversely, in the latter situation, where the attacker is unknown to the victim, the questions of whether the victim was raped and whether the defendant was the rapist are not linked because it is possible that someone other than the defendant committed the crime. Thus, the evidence at trial could establish beyond a reasonable doubt that the victim was |firaped, but the defendant could nevertheless be acquitted due to a failure to establish the rapist’s identity beyond a reasonable doubt. It is only in this second scenario that the defendant’s identity was “at issue” within the meaning of Act 1780.
The instant case is of the former type, where the attacker’s identity was known at the time of the alleged rape, as K.M. did not allege generally that she was raped, but specifically that she was raped by appellant. Strong, 372 Ark. at 406-07, 277 S.W.3d at 162. K.M. said that appellant raped her at the Sunset Motel; the owner of the motel confirmed that appellant had rented a room. Id. KM. said that appellant had cleaned himself with a sock; the crime lab verified that appellant’s semen was found on that sock. Id. at 408, 277 S.W.3d at 163. Thus, both KM.’s allegations as well as the corroborating testimony clearly identified appellant as the only possible rapist, and any defense to the charge would have to focus on creating reasonable doubt that KM. was actually raped. That issue is one of the victim’s credibility, not of identity of the attacker. This court defers to the trial court on issues of witness credibility. See, e.g., Rounsaville v. State, 374 Ark. 356, 288 S.W.3d 213 (2008); MacKool v. State, 365 Ark. 416, 231 S.W.3d 676 (2006).
B. Scientific Comparison of Fibers Found at the Crime Scene
As an additional basis for relief under Act 1780, appellant requested that certain unspecified fibers found at the crime scene be “compared with samples had from (clothing, carpet, etc.) from any crime scene, or suspect.” Appellant argued that he might be able to “make use” of the results of such testing to establish his actual innocence. A petition for this |7type of scientific testing is governed by the same statute as a request for DNA testing, and that statute imposes the same predicate requirements on all petitions thereunder. Again, appellant has failed to establish the predicate requirement that his identity was at issue during the investigation of the alleged rapes or at his trial. Appellant therefore fails to satisfy the predicate requirements under Arkansas Code Annotated § 16-112-202(7); see Douthitt, 366 Ark. at 580, 237 S.W.3d at 77. Based on this failure, appellant’s request for comparison of fibers found at the crime scene failed to warrant relief under Act 1780.
C. Non-cognizable Claims Under Act 1780
The remainder of appellant’s petition asserted a number of claims that are not cognizable under Act 1780, including a claim of prosecutorial misconduct based on appellant’s allegation that the State hid evidence regarding the ownership of the socks in question, claims of due process and equal protection violations, a claim that the trial court abused its discretion, and a general claim that the evidence used to convict appellant was insufficient. All of these claims should have been raised on direct appeal, in a petition for postconviction relief, or in a petition for writ of error coram nobis. An Act 1780 petition is limited to issues of scientific testing. See Davis v. State, 366 Ark. 401, 235 S.W.3d 902 (2006); see generally Ark.Code Ann. §§ 16-112-201 to -202. Act 1780 does not provide a substitute for proceeding under Arkansas Rule of Criminal Procedure 37.1 (2009), and the Act does not provide a substitute for a petition for writ of error coram nobis. Graham v. State, 358 Ark. 296, 188 S.W.3d 893 (2004).
kD. Conclusion
The record clearly shows that appellant was not entitled to relief under Act 1780. As such, he could not prevail if his appeal were to proceed, and we dismiss the appeal accordingly. His motions for access to the record and for appointment of counsel are moot.
Appeal dismissed; motions moot.
. Appellant was convicted of two counts of rape against the same victim. Strong v. State, 372 Ark. 404, 406, 277 S.W.3d 159, 162 (2008).
. Appellant did not actually explain in what way the trial court abused its discretion.
. We noted, however, that no corroboration was needed to sustain a conviction for rape. Strong, 372 Ark. at 409-10, 277 S.W.3d at 164 (citing Pinder v. State, 357 Ark. 275, 166 S.W.3d 49 (2004)). | [
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RONALD L. SHEFFIELD, Justice.
I,The Arkansas Court of Appeals certified this case to us pursuant to Arkansas Supreme Court Rule 1 — 2(b)(1), (4), and (5) (2009), as a case involving an issue of first impression, having a substantial public interest and needing clarification or development of the law. We have been asked to determine whether nonwaiver and no-unwritten-modifications clauses in a financing agreement preclude a creditor from waiving future strict compliance with the agreement by accepting late payments. In Mercedes-Benz Credit Corp. v. Morgan, 312 Ark. 225, 850 S.W.2d 297 (1993), this court explicitly reserved ruling on this question until it had been properly raised and argued in an appropriate case. The question is now ripe for our review.
On March 15, 2003, Appellant, Mose Minor (Minor), entered into a Simple Interest Motor Vehicle Contract and Security Agreement with Appellee, Chase Auto Finance 1 ¡.Corporation (Chase), to finance the purchase of a 2003 Toyota Tundra. By the terms of the agreement, Minor was to make sixty-six payments of $456.99 on the fourteenth of each month. The payments would start on April 14, 2003, and end on September 14, 2008. The agreement also included the following relevant provisions:
G. Default: If you breach any warranty or default in the performance of any promise you make in this contract or any other contract you have with us, including, but not limited to, failing to make any payments when due, or become insolvent, or file any proceeding under the U.S. Bankruptcy Code, ... we may at our option and without notice or demand (1) declare all unpaid sums immediately due and payable subject to any right of reinstatement as required by law (2) file suit against you for all unpaid sums (3) take immediate possession of the vehicle (4) exercise any other legal or equitable remedy.... Our remedies are cumulative and taking of any action shall not be a waiver or prohibit us from pursuing any other remedy. You agree that upon your default we shall be entitled to recover from you our reasonable collection costs, including, but not limited to, any attorney’s fee. In addition, if we repossess the vehicle, you grant to us and our agents permission to enter upon any premises where the vehicle is located. Any repossession will be performed peacefully.
J. Other Agreements of Buyer: ... (2) You agree that if we accept moneys in sums less than those due or make extensions of due dates of payments under this contract, doing so will not be a waiver of any later right to enforce the contract terms as written.... (12) All of the agreements between us and you are set forth in this contract and no modification of this contract shall be.valid unless it is made in writing and signed by you and us....
K. Delay in Enforcement: We can delay or waive enforcement of any of our rights under this contract without losing them.
Minor’s first payment was late, as were several subsequent payments. At times he failed to make any payment for months. Chase charged a late fee for each late payment, and sent several letters requesting payment and offering to assist Minor with his account. Chase also warned Minor that continued failure to make payments would result in Chase exercising its Islegal options available under the agreement, including repossession of the vehicle. Minor claims he never received these letters. At one point, Minor fell so far behind in his payments that Chase was on the verge of repossessing the vehicle. However, on October 19, 2004, the parties agreed to a two-month extension of the agreement, such that the final installment would be due on November 14, 2008. The extension agreement indicated that all other terms and conditions of the original contract would remain the same.
On November 2, 2004, Minor filed for Chapter 7 bankruptcy in the Eastern District of Arkansas. In his petition, Minor stated that the value of the vehicle was SSOOO.OO. On February 24, 2005, Chase sent Minor a letter acknowledging that Minor’s debt to Chase had been discharged in bankruptcy. The letter further stated that Chase still had a valid lien on the vehicle, and if Minor wished to keep the vehicle, he would have to continue to make payments to Chase. Otherwise, Chase would repossess the vehicle. Chase sent a similar letter to Minor on May 22, 2006, and to Minor’s bankruptcy attorney on November 16, 2004. Minor claimed he never received any of these letters.
On September 28, 2006, a repossession agent, Joshua Niles of Chamras Asset Recovery Specialists, arrived at Minor’s home some time in the afternoon to repossess the vehicle. The prepossession agent checked the VIN number of the vehicle and began to hoist it on his truck. There were no fences, gates, or garages barring the agent’s access to the vehicle. When Minor objected to the repossession, the agent gave him a telephone number for Chase to call to obtain more information. Minor returned to his house to make the phone call, and spoke to a representative of Chase, who told him that Chase was repossessing the car because he was three months behind on his payments. Minor objected to the Chase representative and insisted that he could provide proof of payment in the form of money-order receipts. The repossession agent waited outside for several minutes, but when Minor did not return from inside his house, the agent removed Minor’s possessions from the vehicle and towed it away. Chase sold the vehicle. The amount of the purchase price was reflected on Minor’s account on November 17, 2006.
On January 7, 2008, Minor filed a complaint against Chase in the Johnson County Circuit Court. In the complaint, Minor alleged that, during the course of the contract, the parties had altered the provisions of the contract regarding Chase’s right to repossess the vehicle and Chase had waived the right to strictly enforce the repossession clause. Minor further claimed that the repossession agent committed trespass and repossessed the vehicle forcibly, without Minor’s permission, and through trickery and deceit, in violation of Arkansas Code Annotated section 4 — 9—609(b)(2) (Repl.2001). Also, Minor asserted that he was not in default on his payments, pursuant to the repayment schedule, at the time Chase authorized repossession. Therefore, according to Minor, Chase committed conversion, and | gbreached the Arkansas Deceptive Trade Practices Act, specifically Arkansas Code Annotated section 4-88-107(a)(10) (Supp. 2007), and enhanced by Arkansas Code Annotated section 4-88-202 (Repl.2001), because Minor is an elderly person. Minor sought compensatory and punitive damages.
A jury trial was held on February 19, 2009. At the close of Minor’s case, Chase moved for a directed verdict. Chase argued that Minor had not asserted sufficient grounds for an award of punitive damages because the act of conversion, alone, does not constitute sufficient grounds for an award of punitive damages, and Minor had not provided any evidence that there had been a breach of the peace. Chase further maintained that, by Minor’s own admission when he testified before the circuit court, he was at least three payments past due at the time of the repossession. Therefore, under the terms of the contract, Chase asserted that it had a right to repossess the vehicle peacefully, and Minor’s argument that he should have re ceived notice that Chase would require strict compliance with the contract failed because the contract included nonwaiver and no-unwritten modification clauses. Chase argued that the case upon which Minor relied, Mercedes-Benz Credit Corp. v. Morgan, 312 Ark. 225, 850 S.W.2d 297 (1993), was distinguishable, and instead the holding of Westlund v. Melson, 7 Ark.App. 268, 647 S.W.2d 488 (1983), indicated that Chase’s acceptance of late payments had not effected a waiver of its right to demand future strict compliance. Finally, Chase asserted that Minor had failed to show that Chase had committed deception or false pretense in order to sustain a claim for a violation of the Arkansas Deceptive Trade Practices Act.
1-Jn response, Minor argued that the jury should be allowed to rule on the evidence because there was a question of whether Minor was in default at the time of the repossession, since the evidence indicated that Chase had failed to properly credit his account. What is more, Minor maintained that Chase was aware of this error but repossessed the vehicle anyway, against Minor’s will, an action that constituted an intentional and willful violation of Minor’s rights, warranting an award of punitive damages. Also, according to Minor, his request that the repossession agent stop the repossession constituted a confrontation rising to the level of a breach of the peace. Further, Minor asserted that he had presented sufficient evidence that he had a right to possess the vehicle, and that, by continually accepting late payments, Chase had established a course of dealing that modified the contract and waived Chase’s right to repossess the vehicle without notice to Minor that Chase would require strict compliance in the future. Minor cited Mercedes-Benz Credit Corp. v. Morgan, 312 Ark. 225, 850 S.W.2d 297 (1993), and Ford Motor Credit Co. v. Ellison, 334 Ark. 357, 974 S.W.2d 464 (1998), as support for this position. Finally, Minor argued that Chase had violated the Arkansas Deceptive Trade Practices Act by repossessing the vehicle over Minor’s objections and failing to timely acknowledge payments Minor had made.
After hearing these arguments, the circuit court ruled that Minor had presented no evidence that the conduct of Chase or the repossession agent constituted grounds for punitive damages; that by the express terms of the contract Chase’s acceptance of late payments did not effect a waiver of its rights in the future; that at the time of repossession, Minor was behind |7in his payments and in breach of the contract; that Chase had the right under the contract to repossess the vehicle and did not commit conversion; and that there was no evidence to support a claim that Chase had violated the Arkansas Deceptive Trade Practices Act. Therefore, the court granted Chase’s motion for a directed verdict on all grounds. On March 27, 2009, the circuit court entered an order reflecting this ruling and dismissed the complaint with prejudice. Minor filed a timely notice of appeal on April 23, 2009.
We have accepted certification of this case from the court of appeals in order to determine the effect of nonwaiver and no-unwritten-modification clauses in a contract when a secured creditor has routinely accepted delinquent payments from a debtor. While we have never considered this specific issue, Arkansas courts have held that, when the contract does not contain the provisions at issue before us now, the creditor’s previous acceptance of late payments in the past from the debtor waives the creditor’s right to demand strict compliance from the debtor in the future. See, e.g., Ford Motor Credit Co. v. Ellison, 334 Ark. 357, 974 S.W.2d 464 (1998); Am. Law Book Co. v. Hurst, 168 Ark. 28, 268 S.W. 605 (1925). This waiver remains in effect until the creditor notifies the debtor that it will no longer accept late payments, and instead will require strict compliance. Ellison, 334 Ark. at 367, 974 S.W.2d at 470. The majority of jurisdictions around the country have adopted this same general rule. See, e.g., Ford Motor Credit Co. v. Waters, 273 So.2d 96, 100 (Fla.Dist.Ct.App.1973); Dunn v. Gen. Equities of Iowa, Ltd., 319 N.W.2d 515 (Iowa 1982); Nev. Nat’l Bank v. Huff, 94 Nev. 506, 582 P.2d 364 (1978); Slusser v. Wyrick, 28 Ohio App.3d 96, 502 N.E.2d 259 (1986); Lee v. Wood Prods. Credit Union, 275 Or. 445, 551 P.2d 446 (1976); Ford Motor Credit Co. v. Washington, 573 S.W.2d 616 (Tex.Civ.App.1978).
The existence of nonwaiver and no-unwritten-modification provisions in the contract changes the situation, however. As previously mentioned, this court in Mercedes-Benz Credit Corp. v. Morgan, 312 Ark. 225, 850 S.W.2d 297 (1993), reserved considering the effect of such clauses. In Morgan, Morgan purchased a Porsche with an installment contract assigned to Mercedes-Benz Credit Corporation (MBCC). Morgan made many late payments, and about a year into the forty-eight month contract, MBCC decided to exercise its right to repossess the vehicle under the contract. Morgan then brought his account current, and MBCC offered to return the Porsche, but Morgan refused and filed an action for conversion. On appeal, this court considered Morgan’s argument that the fact that MBCC had routinely accepted Morgan’s late payments constituted a waiver of strict compliance, and, at the very least, MBCC had to provide notice to Morgan before it repossessed the vehicle. This court noted that its prior decisions in Commercial Credit Co. v. Ragland, 189 Ark. 349, 72 S.W.2d 226 (1934), and General Motors Acceptance Corp. v. Hicks, 189 Ark. 62, 70 S.W.2d 509 (1934), decided before the adoption of the Uniform Commercial Code, required a creditor, who had accepted late payments in the past, to notify a debtor that the practice would no longer be continued before the creditor could take appropriate action to declare a default. The court then quoted a long passage from Steve H. Nickles’s Rethinking Some U.C.C. Article 9 Problems, 34 Ark. Law Rev. 1, 136-37 (1980-1981), that indicated that this rule did not change with lflthe adoption of the Uniform Commercial Code. This court concluded that, given this authority, the jury could have found that MBCC had waived its right to repossession by its course of dealing in accepting late payments, and that MBCC would need to provide Morgan with notice in order to reinstate its right to strict compliance.
However, this court noted that MBCC relied on the holding in Westlund v. Mel-son, 7 Ark.App. 268, 647 S.W.2d 488 (1983), that acceptance of a late payment precludes acceleration of the due date of the note because of the lateness of that payment, but is not a waiver for the right to accelerate when default occurs in a subsequent installment. While this court rejected MBCC’s argument because MBCC had brought it up for the first time on appeal, the court did not reject the holding in Westlund outright. Further, the court sua sponte acknowledged that the contract at issue in the case before it contained nonwaiver and no-unwritten-modification clauses, and seemed to imply that if MBCC had addressed these clauses in its argument, the outcome of the case might have been different.
Accordingly, we affirm our previous decisions that when a contract does not contain a nonwaiver and a no-unwritten-modification provision and the creditor has established a course of dealing in accepting late payments from the debtor, the creditor waives its right to insist on strict compliance with the contract and must give notice to the debtor that it will no longer accept late payments before it can declare default of the debt. However, we announce today that, if a contract includes nonwaiver and no-unwritten-modification clauses,- the creditor, in accepting late payments, does not waive its right under the contract to declare |10default of the debt, and need not give notice that it will enforce that right in the event of future late payments.
In arriving at this conclusion, we adhere to the principle that “a security agreement is effective according to its terms between the parties.” Ark.Code Ann. § 4-9-201 (Repl.2001); Fordyce Bank & Trust Co. v. Bean Timberland, Inc., 369 Ark. 90, 97, 251 S.W.3d 267, 273 (2007). We have long held that nonwaiver clauses are legal and valid. See Philmon v. Mid-State Homes, Inc., 245 Ark. 680, 684, 434 S.W.2d 84, 87 (1968) (citing Johnson v. Guar. Bank & Trust Co., 177 Ark. 770, 9 S.W.2d 3 (1928)). Also, section 4-2-209(2) (Repl.2001) of the Arkansas Code declares that no-unwritten-modification provisions are binding.
We acknowledge that there is a difference of opinion among the courts in other jurisdictions over the effect of nonwaiver and no-unwritten-modification clauses. The United States District Court for the District of Connecticut described this split of authority best:
There are three schools of .thought on the anti-waiver provision and its effect on the general rule. One line of cases has construed the anti-waiver provision
as giving the secured party the right to take possession of the collateral without notice upon “default. Virgil Van Bibber, et al, v. Norris [275 Ind. 555], 419 N.E.2d 115 (Ind.1981); Hale v. Ford Motor Credit Co., 374 So.2d 849 (Ala. 1979); Wade v. Ford Motor Credit Co., 455 F.Supp. 147 (D.C.E.D.Mo.1978). In contrast, a second line of cases holds that the anti-waiver clause is irrelevant because acceptance of late payments does not constitute |na waiver of the secured party’s right to demand prompt payments. These jurisdictions have decided that waiver is not the issue to be determined, but rather “the issue is the right of the [debtor] ... to be notified of a modification of such conduct on part of the [creditor].” Waters, 273 So.2d at 100. In reaching a determination of this issue, the courts essentially reverted to the general rule concluding that the debtor has the right to be notified of the secured party’s demand of prompt payments. “The basis for imposing this duty on the secured party is that the secured party is estopped from asserting his contract rights because his conduct had induced the justified reliance of the debtor in believing that late payments were acceptable.” Cobb, 295 N.W.2d at 236.
In Westinghouse [Credit Corporation v. Shelton, 645 F.2d 869 (10th Cir. 1981) ], supra, the United States Court of Appeals for the Tenth Circuit expressed a third view with respect to the anti-waiver provision. The court concluded that it was possible for the credi tor to waive the anti-waiver provision pursuant to basic contract principles as illustrated in Article 2 of the Uniform Commercial Code. Id. at 871-74. Arriving at this conclusion, the court reasoned that an Article 9 security agreement may also be a contract for a sale and, therefore, Article 2 principles are applicable. Id. at 872 n. 3. The court went on to state that U.C.C. § 2-208 permitted' the creditor to waive its right to strictly enforce the contract’s terms. Id. at 872-73.
Tillquist v. Ford Motor Credit Co., 714 F.Supp. 607, 611 (D.Conn.1989); see also Smith v. Gen. Fin. Corp. of Ga., 243 Ga. 500, 255 S.E.2d 14, 14 (1979) (“[EJvidence of the buyer’s repeated, late, irregular payments, which are accepted by the seller, does create a factual dispute as to whether a quasi new agreement was created under Code § 20-116, and a jury question is also raised as to whether the anti-waiver provision in the loan contract was itself waived.”); Battista v. Sav. Bank of Balt., 67 Md.App. 257, 507 A.2d 203, 209 (1986) (“We hold, therefore, that a waiver of a contractual right to prompt payment or a waiver of a contractual right to repossess ... may be effected by conduct, and the same is true as to the provisions of a non-waiver clause. When such a waiver has occurred, the creditor, before it can insist on future performance in strict compliance with the contract, must give plain and reasonable notice to the debtor that it intends to do so.”); Moe v. John Deere Co., 516 N.W.2d 332, 338 (S.D.1994) (‘We hold that the repeated acceptance of late payments by a creditor who has the contractual right to repossess the property imposes a duty on the creditor to notify the debtor that strict compliance with the contract terms will be required before the creditor can lawfully repossess the collateral.”).
By our holding, we have adopted the reasoning of the first line of cases. We concur with the Supreme Court of Indiana’s decision in Van Bibber v. Norris, 275 Ind. 555, 419 N.E.2d 115 (1981), that a rule providing that nonwaiver clauses could themselves be waived by the acceptance of late payments is “illogical, since the very conduct which the [non-waiver] clause is designed to permit[,] acceptance of late payment[,] is turned around to constitute waiver of the clause permitting the conduct.” Id. at 121. We also agree that the approach of jurisdictions that require creditors who have accepted late payments in the past to notify debtors that they expect strict compliance in the future, despite the existence of a nonwaiver provision in the contract, is not “sound.” Id. at 121. Such a rule, we recognize, “begs the question of validity of the non-waiver clause.” Id. at 121. Finally, our holding is in line with the Indiana Supreme Court’s ruling that it would enforce the provisions of the contract, since the parties had agreed to them, and that it would not require the creditor to give notice, because the nonwaiver clause placed the secured party in the same position as one who had never accepted a late payment. Id. at 122; see also Hale v. Ford Motor Credit Co., 374 So.2d 849 (Ala.1979); Gen. Grocer Co. of Ill. v. Bachar, 51 Ill.App.3d 907, 8 Ill. Dec. 720, 365 N.E.2d 1106 (1977); First Nat’l Bank of Cincinnati v. Cianelli, 73 Ohio App.3d 781, 598 N.E.2d 789 (1991).
liJn holding that nonwaiver and no-unwritten-modification clauses in a contract preclude waiver of a secured creditor’s right to demand strict compliance with the contract in the future, even where the creditor’s past acceptance of late payments has established a course of dealing, we address only the question certified to us by the court of appeals. We remand this case to the court of appeals for a determination on the merits.
Certified question answered; remanded to court of appeals.
GUNTER and WILLS, JJ., concur.
. Minor later asserted, when he testified before the circuit court, that this amount was a mistake and a significant understatement. It has also been said by both parties in their arguments and in testimony before the circuit court that Minor did not include his debt to Chase in the petition. This statement is inconsistent with the bankruptcy filing since Chase is listed in the creditor matrix and in the schedule of creditors holding unsecured nonpriority claims in Minor’s petition, though the amount indicated as owed to Chase in the petition is significantly less than the amount actually owed.
. Before certifying this case to this court, the court of appeals requested that the parties submit letter briefs addressing its recent decision in Turley v. Staley, 2009 Ark. App. 840, 372 S.W.3d 821. In that case, involving a contract for the sale of land, the court of appeals found that the acceptance of late payments effected a waiver that remained in place until the seller notified the buyer otherwise, despite the existence of a nonwaiver clause in the contract. We find Turley distinguishable from this case because it involved the sale of real property, and therefore was not a secured transaction governed by Article 9 of the Uniform Commercial Code, as in this case. Ark.Code Ann. § 4-9-109 (Supp.2009). | [
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PER CURIAM.
|,Appellant Donald Thompson, by and through his attorney Cindy M. Baker, has filed a motion for belated appeal. The State filed a petition to revoke Thompson’s suspended sentence that had been entered on July 5, 2008, pursuant to a plea agreement. At a hearing on July 21, 2008, the Carroll County Circuit Court revoked Thompson’s suspended sentences and ordered him to report to the Carroll County Sheriffs Office on July 28, 2008. The judgment and commitment order reflecting the court’s decision was entered on July 28, 2008. However, on July 25, 2008, Thompson filed a motion for new trial, which was denied in an order entered on August 5, 2008. The deadline for Thompson’s notice of appeal thus fell on September 4, 2008. See Ark. R.App. P.-Crim. 2(a)(3).
According to Thompson’s motion, Baker notified Thompson that a notice of appeal would need to be filed within thirty days, but he expressed reservations about whether he [¡would want to appeal. He further said that he would have his mother and girlfriend get estimates of how much an appeal would cost and would “have them get back to” Baker. Baker contacted Thompson’s mother and girlfriend on September 2, 2008, to ask whether Thompson wanted to pursue an appeal. The mother and girlfriend both told Baker that Thompson would be calling them that day with an answer, and they would contact Baker before the end of the day. However, Baker never heard back from Thompson, his mother, or his girlfriend.
On September 17, 2008, Thompson contacted Baker’s office. Although Baker was out of the office at the time, Thompson left a message asking her to visit him in the jail the next day. Baker went to the jail to meet with Thompson on September 18, 2008. At that time, Thompson stated that he wanted to appeal and had the money to do so, but that he had been on administrative lockdown at the time his answer was due and unable to have visitors or make phone calls to anyone. That same day, Baker filed a notice of appeal on Thompson’s behalf in Carroll County Circuit Court. The present motion for belated appeal was filed in this court on March 10, 2009.
If a petitioner fails to timely file a notice of appeal, a belated appeal will not be allowed absent a showing by the petitioner of good cause for the failure to comply with [3proper procedure. Ark. RApp. P.-Crim. 2(e); Garner v. State, 293 Ark. 309, 737 S.W.2d 637 (1987) (per curiam). Relief from the failure to perfect an appeal is provided as part of the appellate procedure granting the right to an appeal. McDonald v. State, 356 Ark. 106, 146 S.W.3d 883 (2004). Where it is plain from the motion, affidavits, and record that relief is proper under Rule 2(e), based upon error or good reason, this court will grant a belated appeal. Id. However, where a motion seeking relief from failure to perfect an appeal is filed, and it is not plain from the motion, affidavits, and record whether there is attorney error, the clerk of this court will be ordered to accept the notice of appeal or record, and the appeal will proceed without delay. Id. The matter of attorney error will be remanded to the trial court to make findings of fact. Id. (citing Frazier v. State, 339 Ark. 173, 3 S.W.3d 334 (1999)). Upon receipt by this court of the findings, this court will render a decision on attorney error. Id.
In the instant motion for belated appeal, Baker asserts on Thompson’s behalf that his inability to communicate his desire to appeal to his attorney constitutes good cause for granting the motion. She does not admit fault. Because the allegations in the motion for belated appeal raise questions of fact, we remand this matter to the trial court for an evidentiary hearing on the circumstances surrounding Thompson’s alleged inability to communicate with counsel. The circuit court is directed to provide findings of fact detailing when and whether Thompson was placed in administrative lockdown and prohibited from 14 communicating with anyone, including his attorney. These findings are to be provided to this court within forty-five days.
Remanded.
. Thompson subsequently filed a motion in circuit court for an extension of time in which to lodge the record. Although the order was purportedly granted, Thompson alleges that the court reporter failed to include a copy of that order in the record and asserts that, if this motion for belated appeal is granted, he will file a motion to correct the record. | [
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WAYMOND M. BROWN, Judge.
|,Appellant Anthony Owens appeals the revocation of his suspended imposition of sentence (SIS) on three underlying cases (forgery in the second degree in case CR-2004-379; overdraft in case CR-2004-1471; conspiracy to possess cocaine with intent to deliver (reduced) and possession of drug paraphernalia in case CR-2007-79(b)). Appellant was sentenced to ten years’ imprisonment for the underlying charges and received an additional twelve-year SIS in case CR-2007-79(b). Appellant argues on appeal that the trial court erred in finding that he failed to provide support and failed to pay restitution without just cause. We find no error and affirm.
The State filed a petition to revoke appellant’s SIS in the underlying cases on December 3, 2008, alleging that appellant had violated the terms and conditions of his 12suspended sentence by failing to pay restitution as ordered. At the time of the petition, appellant owed $991.20 in restitution. The petition also alleged that appellant had charges pending in Sebastian County for failing to pay his court-ordered child support.
Appellant’s revocation hearing took place on February 25, 2009. Anita Elaine Welch, appellant’s child’s mother, testified that the last time she received a child support payment from appellant was in November or December 2008, when appellant was released from jail. She stated that “the payment prior to the one in late 2008 was made years ago; and [she] don’t remember when it was.” According to Welch, appellant told her to “keep them people out of [his] business.” She stated that she has known appellant to have a job and he still would not pay child support. Welch testified that, as of December 2008, appellant was almost $26,000 in arrears.
Deborah Cooksey Avillion, an attorney specialist with the Office of Child Support Enforcement in Van Burén, testified that appellant’s child-support arrearage through February 2009 was $26,790. She stated that, since February 5, 2003, she has had seven hearings and several conversations with appellant. Avillion said that she was in court with appellant on April 26, 2006, following appellant’s arrest for nonpayment of child support. According to Avillion, appellant was released after he told the court he had a $4964 cheek at his house and was going to apply it to his child-support arrearages. However, the money was never received. Avillion also testified that in September 2005 appellant was released on a $520 bond, the amount found on his person, subsequent to being arrested for nonpayment of child 13support. Avillion stated that appellant claimed disability at various times but never provided them with a doctor’s statement that he was disabled and unable to work. She testified that appellant appeared at a review hearing on December 12, 2008, in a business suit, possessing business cards, and indicating that he was working and would pay $150 by December 12; however, he only made a fifty-dollar payment on December 9. Avillion stated that appellant told her office that he was filing a workers’ compensation claim, but they were never able to intercept any money from the claim. According to Avillion, the workers’ compensation claim with Rheem Air Conditioning was closed on August 15, 2002, and no active claim was on file. She conceded that “there was at least some notice to the Office of Child Support Enforcement of at least the [appellant’s] claim to injury; the back surgery, the Worker’s [sic] Comp, and that he had applied for Social Security.” However, she stated that appellant had never shown her an application for SSI disability or provided her with proof of any application of rehabilitation services. She stated that the medical records appellant did provide her with “would actually prove that he was able to work.”
•The Office of Child Support Enforcement’s activity log was introduced without objection during Avillion’s testimony. The restitution ledger was introduced without objection at the conclusion of the State’s case. The ledger showed that appellant owed $991.20 in restitution at the time of his revocation hearing.
David Lee Jones, a retired minister, testified that he had known appellant for twelve years. According to Jones, he and appellant were in the Brother’s Keeper program together. |4 Jones testified that appellant had a seasonal job, keeping up yards. Jones stated that appellant cleaned his yard and that appellant had done work for other people Jones knew. Jones said that he did not think that appellant had the ability to do a lot of physical labor because of his back injury. Jones also stated, “It seems a little inconsistent that he would have a back injury and not be able to do much physical work and yet operate a lawn care business, but he had other people working for him.” Jones testified that appellant had made a considerable amount of changes since he had been released from prison the last time.
Appellant testified that he has had two back surgeries and was presently in need of a third surgery. According to appellant, he had a work-related injury in 2008 and had to have surgery on his mid-back. Appellant stated that he returned to work following his surgery, but was soon fired. Appellant testified that he was performing his work “all right after [his] surgery.” He also stated that he was “always going to have pain in [his] back.” Appellant said that his work history ceased after his termination from Rheem. Appellant further testified,
I needed to have surgery again on my back so I filed for disability and I didn’t work until I got out of prison because I was waiting on a claim from Social Security. I’ve been waiting since 2002, 2003, when I first filed a claim for disability and every time that I go to jail, they stop it and then I have to wait and apply again. I developed the lawn care business to keep some cash coming so that I could help Tim and Nita and myself as far as medicine and trying to see the doctor. I have not got the second surgery I needed on my mid-back.... I do as much of the lawn care business as I can then I got a guy who works for me.... They help me out when it comes to the hard labor part of the work. I just go out and contract the work and they come and do the work.
Appellant stated that he had contracts for five yards from January 15, 2008, to the time of the hearing, for twenty to thirty dollars a yard. However, he stated that he did not do all the 15yards each week — he had help. According to appellant, he paid his help ten dollars a yard, and he kept twenty dollars. Appellant testified that he was doing his lawn business in 2005, whenever he could get lawns. According to appellant, in 2005 he lived with his mother and she supported him; he was also on food stamps. Appellant stated that he made between $2000 and $3000 in 2006 because business was slow and that “[t]hey kept putting [him] in jail.” Appellant said that he was in jail from April 22, 2006, to June 28, 2006. Appellant was also imprisoned from January 16, 2007, to January 15, 2008, on a matter unrelated to this case. Appellant testified that there were occasions when he would give money directly to his child. He also stated that he would buy his child clothes and shoes every year. According to appellant, he spent $400 to $500 on his child yearly. Appellant testified, “I haven’t been doing what I should have been doing or what I could have done. I would ask you to have mercy on me so I can be the father to the son I’ve never had.”
On cross, appellant stated that he never paid child support at the Office of Child Support. He also conceded that buying his child clothes once a year “is not supporting a child.” Appellant excused his behavior by stating that he had doubts about the child being his because Welch had different boyfriends. Appellant stated that he paid all of his probation fees to stay out of jail; however, he insisted that he was not more concerned with staying out of jail than with his child having food to eat. Appellant testified that he contracts lawns and his helper does all the work. He stated that his helper has stayed with him for years under this arrangement. Appellant said he does what physical labor he can with his back problems. | fiWhen asked whether he could work at McDonald’s, appellant replied, “I could work at McDonald’s but they probably wouldn’t hire me because of my record.” He further indicated that the long standing and moving around would probably prevent him from holding down a job at McDonald’s because his left leg gets numb. According to appellant, he would rather be using his mind.
The trial court found that appellant had, without just cause, failed to provide support to his minor child. The trial court gave little weight to appellant’s testimony, stating that it was “despicable.” The trial court told appellant that if he is “physically capable of doing lawn care, [he is] physically capable of finding some employment that exists in the workplace.” The trial court found appellant in violation of his suspended sentence and sentenced him to ten years’ imprisonment. Appellant also received an additional twelve years’ SIS. This appeal followed.
A trial court may revoke a defendant’s suspension at any time prior to the expiration of the period of suspension if it finds by a preponderance of the evidence that the defendant has inexcusably failed to comply with a condition of his suspension. Ark.Code Ann. § 5-4-309(d) (Supp.2009); Reese v. State, 26 Ark.App. 42, 759 S.W.2d 576 (1988). This court will not reverse the trial court’s decision to revoke unless it is clearly against the preponderance of the evidence. Williams v. State, 351 Ark. 229, 91 S.W.3d 68 (2002). Because the determination of a preponderance of the evidence turns on questions of credibility and the weight to be given testimony, we defer to the trial judge’s superi- or position. Richardson v. State, 85 Ark.App. 347, 157 S.W.3d 536 (2004). The State need only show that the appellant committed one violation in order to sustain a revocation. Id.
Where the alleged violation is a failure to make payments as ordered, the State has the burden of proving by a preponderance of the evidence that the failure to pay was inexcusable. Reese, supra. Once the State has introduced evidence of nonpayment, the burden shifts to the defendant to offer some reasonable excuse for his failure to pay. Id. Arkansas Code Annotated section 5 — 4—205(f)(3) (Supp. 2009) sets forth several factors to be considered by the trial court, including the defendant’s employment status, earning ability, financial resources, the willfulness of the defendant’s failure to pay, and any other special circumstances that may have a bearing on the defendant’s ability to pay. Although a probationer cannot be imprisoned solely on the basis of failure to pay, his failure to seek employment or make bona fide efforts to borrow money to pay may support a finding that his failure to pay was a willful act warranting imprisonment. See Jordan v. State, 327 Ark. 117, 939 S.W.2d 255 (1997); Gossett v. State, 87 Ark.App. 317,191 S.W.3d 548 (2004).
Appellant argues that the trial court erred by finding that he had violated the terms and conditions of his suspended sentence without just cause. According to appellant, he has just cause for his failure to pay: he does not have the ability to pay. This argument is without merit.
The testimony adduced at the revocation hearing showed that appellant was over $26,000 behind in child support. Appellant operated a lawn-care business, but still failed to |smake payments toward his child-support obligation. Following a body attachment, $520 was paid toward appellant’s arrearage. In addition to the $520, appellant paid approximately seventy dollars in child support. Appellant admitted to the trial court that he knew that he did not do what he could. While appellant offered excuses for his violations, the trial judge was not required to believe him or excuse his failure to comply with the conditions of his suspended sentence. See, e.g., Jones v. State, 52 Ark.App. 179, 916 S.W.2d 766 (1996). In fact, the trial court gave very little weight to appellant’s explanations, stating that it did not believe much of what appellant had said and finding his testimony “despicable.” We defer to the fact-finder on issues of credibility. McChristian v. State, 70 Ark.App. 514, 20 S.W.3d 461 (2000). Additionally, appellant’s failure to seek employment, stating that he would rather work with his mind, supports the trial court’s finding that his failure to pay was willful. Therefore, we affirm.
Affirmed.
HENRY and BAKER, JJ., agree. | [
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LARRY D. VAUGHT, Chief Judge.
| Appellant Robert Dotson brings this interlocutory appeal from the decision of the Probate Division of the Carroll County Circuit Court. Robert contends that the circuit court erred in finding that Mark Dotson’s claim, pursuant to the After-Born Child Statute, extinguished Robert’s rights as a named beneficiary of the joint will of Elbert M. Dotson and Irma L. Dotson. We affirm.
On November 21, 1958, Elbert and his wife Irma, the appellee, signed and filed a joint Last Will and Testament. At the time, Elbert and Irma had no children, but Elbert had a nephew, Robert. The will provided:
It is our will and desire, and the will and desire of each of us, that one-half of all real and personal property owned by us jointly, or by Elbert M. Dotson separately, shall go to [Robert] H. Dotson, newphew [sic] of Elbert M. Dotson, absolutely at the death of Elbert M. Dotson, and should Elbert M. Dotson precede Irma L. Dotson in death then the other one-half shall go to Irma L. Dotson. However, should Irma L. Dotson precede Elbert M. Dotson in death, Elbert M. Dotson shall have control of all property, both real and personal, during his lifetime, then at his death all property, real, personal or mixed, |2shall be divided equally between [Robert] H. Dotson and Deborah Dotson, daughter of Irma L. Dotson and stepdaughter of Elbert M. Dotson. '
Sometime after executing their will, Elbert and Irma had a son, Mark.
Elbert died on June 6, 2005. Robert obtained the will from the clerk’s office, and Irma petitioned the court to probate the will and to be appointed personal representative. Robert objected to the appointment of Irma as the personal representative arid' demanded notice of all proceedings as a named beneficiary of Elbert’s will. Irma then filed a petition for determination of heirship, claiming that Mark, an after-born child, was entitled to inherit all of Elbert’s estate as if Elbert had died intestate. Robert countered that Irma was precluded from making any arguments that contradicted the terms of the joint will, i.e., arguing that any property of Elbert’s should devolve by operation of law outside the will because it provided that one-half of Elbert’s property shall go to Robert upon Elbert’s death.
After a hearing, the circuit court entered an order, finding that (1) Robert was a named beneficiary under Elbert’s will; (2) Mark was the sole and only child of Elbert and Irma and was born subsequent to the making of the will; (8) Mark was not mentioned in the will specifically or as a member of a class; and (4) the will was joint and reciprocal and constituted an enforceable contract between Elbert and Irma. The court ordered that the will be admitted to probate and that Irma be appointed personal representative. The order further found:
[Notwithstanding that the Will constitutes an enforceable contract between Elbert Dotson and Irma L. Dotson (which could be enforced against Irma L. Dotson), pursuant to Arkansas Code Section 28-39-407 subsection (a) [the After-Born Child Statute], the testator, Elbert Dotson, is deemed to have died intestate with respect to Mark Dotson, and is entitled to recover from the devi-see, Robert Dotson, that portion of the estate which Mark Dotson would have inherited had there been no will.
| ^Robert filed an interlocutory appeal from this order, and argues that the circuit court erred in holding that Mark’s claim, as an after-born child under Arkansas Code Annotated section 28-39-407(a) (Repl.2004), extinguished his rights as a named beneficiary of the joint will and testament of Elbert and Irma.
Probate cases are reviewed de novo on appeal, and we do not reverse the circuit court’s decision unless it is clearly erroneous. Abdin v. Abdin, 101 Ark.App. 56, 58, 270 S.W.3d 361, 363 (2007). A circuit court’s conclusion on a question of law is given no deference on appeal. Id., 270 S.W.3d at 363.
The After-Born Child Statute provides:
Subsequently Born or Adopted Children. Whenever a child shall have been born to or adopted by a testator after the testator has made his or her will, and the testator shall die leaving the after-born or adopted child not mentioned or provided for in his or her will either specifically or as a member of a class, the testator shall be deemed to have died intestate with respect to the child. The child shall be entitled to recover from the devisees in proportion to the amounts of their respective shares, that portion of the estate which he or she would have inherited had there been no will.
Ark.Code Ann. § 28-39-407(a). Under the laws of intestate succession, the estate of an | ¿individual who dies without a will shall pass “[f]irst, to the children of the intestate and the descendants of each child of the intestate, who may have predeceased the intestate.” Ark.Code Ann. § 28-9-214(1) (Repl.2004).
The purpose of the after-born child and pretermitted-child statute is:
[N]ot to interfere with the right of a person to dispose of his property accord ing to his own will, but to avoid the inadvertent or unintentional omission of children (or issue of a deceased child) unless an intent to disinherit is expressed in the will.... Thus, where the testator fails to mention children or provide for them as member of a class, it will be presumed that the omission was unintentional, no contrary intent appearing in the will itself.
Robinson v. Mays, 271 Ark. 818, 821, 610 S.W.2d 885, 887 (1981).
So strong is the presumption that a father would not intentionally omit to provide for all his children, that in case the name of one or more of the children is left out of the will, by statute it is held to be an unintentional oversight, and the law brings the[m] within the provisions of the will, and makes them joint heirs in the inheritance.
Id., 610 S.W.2d at 887 (citing Cockrill v. Armstrong, 31 Ark. 580 (1876)). More recently, our supreme court has held that the purpose of the pretermitted-child statute is not to compel a testator to make a provision for his children, but to guard against testamentary thoughtlessness. Young v. Young, 288 Ark. 199, 202, 703 S.W.2d 457, 459 (1986).
Despite the strong policy arguments supporting the application of the After-Born Child Statute, Robert argues that the statute should be trumped by Elbert and Irma’s use of a joint and reciprocal will. Arkansas recognizes reciprocal wills, whether joint or mutual, as a legitimate estate-planning device to effect the intent of a married couple to dispose of collective property. Gregory v. Estate of Gregory, 315 Ark. 187, 191, 866 S.W.2d 379, 382 (1993). Generally, the surviving spouse is required to dispose of the collective property according to the joint will or |.smutual wills. Id., 866 S.W.2d at 382.
Here, the two competing public policies confronting us are the right of a couple to execute a joint will to dispose of their estates and the rights of an after-born child. We hold that the rights of the after-born child must prevail and that this is precisely the situation where the After-Born Child Statute should apply. Elbert and Irma executed a joint and reciprocal will when they were young and had no children. One child and fifty years later, the will should be subject to the After-Born Child Statute. As such, we hold that the circuit court did not err in finding that the After-Born Child Statute entitled Mark to take against his father’s will and extinguished the rights of Robert, a named beneficiary of the will.
The case at bar is most similar to Holland v. Willis, 293 Ark. 518, 739 S.W.2d 529 (1987). There the testator’s will left his entire estate to the appellant, his nephew. However, the testator had two children. The will specifically mentioned one of his children and disinherited her. The will made no mention of the other child, who had two children of his own (the testator’s grandchildren) and who had predeceased the testator. Upon the testator’s death, the testator’s grandchildren petitioned the court to take against the will pursuant to the pretermitted-heir statute. Holland, 293 Ark. at 521, 739 S.W.2d at 531. The appellant, the sole beneficiary under the will, objected. Id., 739 S.W.2d at 531. The circuit court entered an order determining that the testator’s grandchildren were pretermitted heirs and entitled to share in the estate and finding that the statute was constitutional. Our supreme court affirmed. Id. at 522-23, 739 S.W.2d at 531-32.
We disagree with Robert’s argument that Gregory provides a blueprint for the analysis in | fithis case and that it supports his position that the joint will of Elbert and Irma prevails over Mark’s statutory rights. In Gregory, H.T. Gregory and his first wife, Gladys Gregory, executed “an Agreement to Make Reciprocal Wills and Not to Revoke Same,” and they simultaneously executed reciprocal wills that were attached and incorporated into the agreement. Gregory, 815 Ark. at 188-89, 866 S.W.2d at 880. The reciprocal wills provided that when one died, the surviving spouse would hold in trust the deceased’s estate, and upon the death of the surviving spouse, the couple’s six children would inherit. Id. at 189, 866 S.W.2d at 381. Gladys died first, and her property went into trust for the benefit of H.T. pursuant to the agreement and her will. Id., 866 S.W.2d at 381. H.T. subsequently married Genevive, and with the consent of his children, H.T. executed a codicil to his will giving Genevive a life interest in the marital home that would revert back to H.T. and Gladys’s children upon Genevive’s death. Id., 866 S.W.2d at 381.
When H.T. died, Genevive filed an election to take her dower and homestead interests and statutory allowances in the estate against H.T.’s will, pursuant to Arkansas Code Annotated section 28-39-401 (1987), the surviving-spouse statute. Id., 866 S.W.2d at 381. The circuit court rejected Genevive’s statutory claim. Gregory, 315 Ark. at 191, 866 S.W.2d at 382. On appeal, our supreme court acknowledged that there were two competing public policies at issue — the right of a couple to contract to make mutual wills that are irrevocable and that dispose of both estates to third-party beneficiaries, and the right of a surviving spouse to take an elective share. Id., 866 S.W.2d at 382. However, the court affirmed, holding that the reciprocal wills and the agreement not to revoke prevailed over the statutory right of the surviving spouse. Id. at 194-95, 866 17S.W.2d at 383-84. Specifically, the court held that Genevive could have no rights greater than H.T.’s rights, which during his lifetime, were subject to his agreement not to revoke his reciprocal will that vested in his children upon his death. Id. at 193, 866 S.W.2d at 383.
Gregory is distinguishable from the case at bar. Here, Mark’s right to inherit accrued upon his birth and applied to both of his parents’ estates. In contrast, in Gregory, the new spouse came into a situation where the rights to H.T.’s estate had already been established and made irrevocable by the agreement and the death of H.T.’s first spouse. Therefore, the Gregory court focused on the agreement not to revoke, not the reciprocal wills, in its analysis and ultimate conclusion that the agreemeni/will prevailed. The court stated:
H.T. Gregory’s estate was subject to and encumbered by the superior contractual rights of the six children. This was clearly part of an estate plan effectuated between H.T. Gregory and Gladys Gregory to benefit themselves and then their children. The wills were not to be changed and would affect all of their property.
Id. at 194, 866 S.W.2d at 383.
While the circuit court in the instant case found that the will of Elbert and Irma was joint and reciprocal, it did not find that there was an agreement between Elbert and Irma not to revoke the joint will. Without evidence of the existence of an agreement not to revoke, we need not reach the issue of whether such an agreement could ever prevail over the paramount right of an after-born child, who is entitled to the highest level of protection.
On a final note, Irma argues on appeal that the circuit court’s finding that the joint will was a binding contract was unnecessary and incorrect and that this conclusion should be vacated. The record, however, does not contain a notice of cross-appeal. Our case law is well settled that when an appellee seeks something more than he or she received in the lower court, a notice of cross-appeal is necessary to give us jurisdiction of the cross-appeal. Hoffman v. Gregory, |R361 Ark. 73, 80-81, 204 S.W.3d 541, 547 (2005) (citing Ark. R.App. P.-Civ. 3(d) (2004); Boothe v. Boothe, 341 Ark. 381,17 S.W.3d 464 (2000); Brown v. Minor, 305 Ark. 556, 810 S.W.2d 334 (1991)). Because Irma failed to file a notice of cross-appeal, we are without jurisdiction to consider her argument.
Affirmed.
HART and ROBBINS, JJ., agree.
. While subsection (a) of Arkansas Code Annotated § 28-39-407 provides for subsequently born or adopted children omitted from their parents’ will, subsection (b) provides for pretermitted children in a similar fashion:
Pretermitted Children. If, at the time of the execution of a will, there is a living child of the testator, or living child or issue of a deceased child of the testator, whom the testator shall omit to mention or provide for, either specifically or as a member of a class, the testator shall be deemed to have died intestate with respect to the child or issue. The child or issue shall be entitled to recover from the devisees in proportion to the amounts of their respective shares, that portion of the estate which he or she or they would have inherited had there been no will. | [
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DONALD L. CORBIN, Justice.
¡[Appellant Robert D. Loggins appeals the judgment of the Union County Circuit Court convicting him of two counts of possession of a controlled substance with intent to deliver and one count each of simultaneous possession of drugs and firearms, possession of drug paraphernalia, and maintaining a drug premises. He was sentenced to life imprisonment on the simultaneous-possession charge and consecutive terms of imprisonment totaling 1,344 months on the remaining convictions; Log-gins was also fined a total of $70,000. Jurisdiction is properly in this court pursuant to Ark. Sup. Ct.. R. l-2(a)(2) (2010). Loggins’s sole point for reversal is that there was insufficient evidence to support his convictions because the State failed to prove actual or constructive possession. We find . no merit to his argument and affirm the judgment. '
[Loggins was tried by a jury along with a codefendant, Benjamin Carter. This court recently affirmed the judgment of Carter’s convictions. Carter v. State, 2010 Ark. 293, 867 S.W.3d 544. The evidence presented at trial was recited in Carter as follows:
On July 31, 2008, the El Dorado Police Department executed a search warrant at 1020 Craig Street after conducting two controlled drug buys at that location using a confidential informant. In executing the warrant, the police focused first on apprehending the people in the house. The police located [Carter] in a bathroom connected to the southwest bedroom of the home near the toilet. Several other people were present in the southwest bedroom, but [Carter] was the only person found in the bathroom. [Loggins was found at the doorway between the bathroom and the southwest bedroom.] When [Carter] was searched incident to arrest, $500 was recovered from his person that matched the serial numbers of the buy money the informant had been given the previous day to purchase drugs. [When Loggins was searched, $500 was also recovered from his person that matched the serial numbers of the buy money given to the informant earlier that same day.]
The police then performed a full search of the home and found: (1) a 9 mm handgun in the grass approximately ten feet from the southwest corner of the residence near an open window to the southwest bedroom; (2) a box of 9 mm ammunition and three loose 9 mm rounds in a cabinet in the kitchen; (3) two large blocks of crack cocaine in the hallway of the home leading to the bedrooms; (4) a 9 mm handgun on the floor of the closet off the hallway; (5) two small walkie talkies, switched to the same channel, on a chair in a room north of the kitchen; (6) a plate containing several rocks of crack cocaine under the sofa in the living room; (7) on a table near the east door, an open box of plastic baggies, three bags of marijuana, a bag of crack cocaine, a set of digital scales, a ledger list of names and dollar amounts, and three dry cleaners’ receipts bearing [Carter’s] name; (8) a video surveillance system connected to a flat-screen television directed to observe the outside of the home; (9) two large chunks of crack cocaine and a crack pipe in the southwest bedroom; and (10) a baggie containing crack cocaine in the bottom of the toilet bowl in the bathroom where [Carter] was apprehended.
At trial, the confidential informant testified that he had purchased drugs from [Carter] on July 30, 2008, [and from Loggins on July 31, 2008,] in cooperation with the El Dorado Police Department in exchange for a reduction of his own drug-possession charges. A forensic chemist from the state crime lab testified to the tests she performed on the over fifty-eight grams of crack cocaine and thirteen grams 1 sof marijuana that was found in the home. Additionally, Peggy Meeks testified that she owned the home at 1020 Craig Street and had rented it to [Carter]. Meeks stated that although [Carter] gave her the money, he asked that the rental agreement be in his sister’s name, which Meeks remembered as Rolanda Loggins.
Douglas Henry testified that he was the “door man” at 1020 Craig Street, patting down people who came in the house to check for weapons or wires. He stated that he bought drugs from [Carter and Loggins] at the home. Henry said that he saw people buy drugs from [Carter and Loggins] in late July 2008, including the confidential informant. Henry stated that he was at the house when the police raided it. Just before the police entered the home, he stated that he saw [Carter] with drugs and a handgun [and Loggins with a handgun]. He testified that it was normal for [Carter and Loggins] to carry a gun. Henry admitted his testimony was in exchange for a plea agreement.
[Carter] testified in his own defense, claiming that he was innocent of the charges against him. He denied renting the house at 1020 Craig Street and stated that Rolanda Loggins was his co-defendant’s sister. He admitted being in the house on the day of the raid and knowing it was a “crack house,” but denied being there for the purpose of buying or selling drugs. He stated that he went to the house to “shoot dice” and “smoke weed” and that he had never seen anyone “smoke crack” at the home. He stated that he was in the “front room” playing a video game when the police came in and that he ran to a back bedroom.
Carter, 2010 Ark. 293, at 1-4, 367 S.W.3d 544, 545-47.
Loggins also testified in his own defense, likewise denying that he ever sold drugs out of the house at 1020 Craig Street. He admitted to being in the house when it was raided, but stated only that he was there to gamble and shoot dice. He explained that the informant was there making crazy bets and not getting upset about losing money, and that is how Log-gins ended up with the buy money in his pocket.
The sole point on appeal is a challenge to the sufficiency of the evidence. Loggins timely moved for a directed verdict on each of the five counts on the specific grounds that the |4State had failed to prove actual or constructive possession. The trial court considered each motion carefully and denied each one, although the court did agree to give lesser-included instructions for the charges related to the marijuana and crack-cocaine possessions.
This court treats a motion for directed verdict as a challenge to the sufficiency of the evidence. Fernandez v. State, 2010 Ark. 148, 362 S.W.3d 905. The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Id. When a criminal defendant challenges on appeal the sufficiency of the evidence convicting him, we view the evidence in the light most favorable to the State, considering only that evidence that supports the verdict. Id. On appeal, this court does not weigh the evidence presented at trial, as that is a matter for the fact-finder; nor do we assess the credibility of the witnesses. Id.
Although circumstantial evidence may provide a basis to support a conviction, it must be consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion. Morgan v. State, 2009 Ark. 257, 308 S.W.3d 147. Whether the evidence excludes every other hypothesis is left to the jury to decide. Id. The credibility of witnesses is an issue for the jury and not the court. Id. The trier of fact is free to believe all or part of any witness’s testimony and may resolve questions of conflicting testimony and inconsistent evidence. Id.
It is not necessary for the State to prove that an accused physically held the contraband, as possession of contraband can be proven by constructive possession, which is the control or fright to control the contraband. Tubbs v. State, 370 Ark. 47, 257 S.W.3d 47 (2007). Con structive possession can be implied where the contraband is found in a place immediately and exclusively accessible to the defendant and subject to his control. Id. Where there is joint occupancy of the premises where contraband is found, some additional factors must be present linking the accused to the contraband. Morgan, 2009 Ark. 257, 308 S.W.3d 147. Those additional factors include (1) that the accused exercised care, control, or management over the contraband; and (2) that the accused knew the matter possessed was contraband. Id. This control and knowledge can be inferred from the circumstances, such as the proximity of the contraband to the accused, the fact that it is in plain view, and the ownership of the property where the contraband is found. Id. In addition, an accused’s suspicious behavior coupled with proximity to the contraband is clearly indicative of possession. Tubbs, 370 Ark. 47, 257 S.W.3d 47.
On appeal, Loggins points out that, at the time the search warrant was executed, he was not in actual possession of any crack cocaine, marijuana, drug paraphernalia, or firearms; therefore, he argues that the State was required to prove his constructive possession. Loggins maintains that the State failed to prove that the contraband was subject to his dominion and control or that it was found in an area within his reach or immediately accessible to him. Loggins points out that numerous other persons had access to the contraband and were found in much closer proximity to it at the time the warrant was executed. He further maintains that there was no evidence that he owned or controlled the premises.
[We view the following evidence in the light most favorable to the State. Johnny Tubbs, the confidential informant, testified that, through a controlled buy, he purchased crack cocaine from Loggins on the day the search warrant was executed. Police found the money used in the control buy on Loggins’s person when he was arrested. Henry, who conducted security checks at the door in exchange for drugs, testified that he understood the house to be Loggins and Carter’s “[b]ecause they rented it. It was whatever they said.” Just prior to the execution of the warrant, Loggins was in the living room of the house. Officer Phillips testified that Log-gins resisted police entry into the bathroom where crack cocaine was found in the toilet. During the search, police found in plain view throughout the house large amounts of crack cocaine as well as marijuana and various ledgers and paraphernalia used for packaging smaller amounts of the drugs for sale. The firearms were found in plain view in the hall closet and outside the window of the southwest bedroom.
That the firearms, the controlled substances, and the paraphernalia were found in plain view and in many rooms throughout the house — including the living room where Loggins had been just prior to the search, as well as the hallway where Log-gins was first seen and the bedroom where Loggins was eventually apprehended — are all circumstances from which a jury could infer that Loggins had control or the right to control the contraband and that he knew it was contraband. In addition, that Loggins resisted police entry into the bathroom where Carter was found standing over the crack cocaine in the toilet, amounts to suspicious behavior in close proximity to contraband and constitutes circumstances from which a jury |7could infer Loggins exercised control of the contraband and knew it was contraband. Accordingly, we conclude that the foregoing evidence constitutes substantial evidence of Loggins’s constructive possession.
In reaching this conclusion, we are aware of Loggins’s argument, with respect to the charge of maintaining a drug premises, that there was no competent evidence that he had a right to exercise any control over the house because there was no evidence that he was the lessee or that he paid rent or utilities, that he ever received mail there, or that he ever stayed in the house on a regular basis. This argument is simply without merit, however. Arkansas Code Annotated section 5-64-402 (Supp.2009) provides that it is unlawful for any person to knowingly keep or maintain any dwelling that is resorted to by a person for the purpose of using or obtaining a controlled substance. The State presented evidence that Loggins sold controlled substances from the house and allowed others to use controlled substances in the house. The State also presented evidence that controlled substances, paraphernalia, and firearms were stored in the house and that the house had communication radios, a security camera, and guarded entry. Henry testified that Carter and Loggins rented the house and sold drugs at the house. At least one officer testified that the police had information that Carter and Loggins were in control of the house. The owner of the house testified that she rented it to Carter pursuant to his request to rent it in the name of Loggins’s sister Rolanda Loggins. These are all circumstances from which the jury could infer that Loggins knowingly maintained the house for the purpose of using and obtaining controlled substances.
[¡Finally, in reaching our conclusion, we note Loggins’s contention that the only evidence tending to connect him with a firearm was the testimony of “co-defendant Robert [sic] Henry, who received a sweet plea deal from the prosecution in exchange for his testimony.” Without any citation to authority, Loggins then states in his brief that “[t]he law has been long established that Appellant cannot be convicted on the testimony of a co-defendant without independent proof of the crime charged.” We note that Henry’s first name is Douglas, and he was not Loggins’s codefendant, although he may arguably have been considered Loggins’s accomplice. The abstract does not reveal, however, that Loggins ever requested that the circuit court declare Henry to be an accomplice as a matter of law or that the issue of Henry’s status as an accomplice be submitted to the jury for its determination. Thus, Loggins has not carried his burden of proving that Henry was an accomplice whose testimony required corroboration. See Taylor v. State, 2010 Ark. 372, 372 S.W.3d 769. Accordingly, we do not consider this aspect of Loggins’s argument any further. We do reiterate, however, that one officer found one of the 9 mm handguns in the yard outside the broken window of the southwest bedroom, which is where Loggins was eventually apprehended. One officer testified that the gun was visible about twelve feet from the window and was in good condition. The other 9 mm handgun was found in plain view in the hall closet, which is near where Loggins initially encountered and resisted the officers. Another officer testified that, from the hallway, he could see the gun lying in the closet. This | aconstitutes substantial evidence from which the jury could infer Loggins’s constructive possession of either or both of the handguns found during the search.
For the aforementioned reasons, we are satisfied that even though there were several persons present when Loggins was arrested, there was substantial evidence from which the jury could find Loggins’s constructive possession of the contraband and the premises. Accordingly, we affirm the judgment of all Loggins’s convictions.
In compliance with Ark. Sup. Ct. R. 4-3(i) (2010), we have reviewed the record for all objections, motions, and requests made by either party that were decided adversely to appellant and find no prejudicial error.
Affirmed. | [
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Humphreys, J.
This is an appeal from a refusal of the chancery court of Pulaski County to render a personal judgment for $75 in favor of the estate of M. D. Fernanzo, deceased, and for $125 in favor of Alice Fernanzo, and costs against appellee, in a proceeding in said court to cancel the tax deed from the State of Arkansas to appel-lee and all deeds thereunder to lot 11, block 4, of Industrial Park addition to the city of Little Rock, Arkansas, in which proceeding, judgments were sought in the amounts set out above.
The facts are that, in the spring of 1926, M. D. Fer-nanzo and Alice Fernanzo purchased said property in entirety from W. E. Lenon, on the installment plan, for $264 with the understanding that the grantor would pay the taxes thereon during the period for the payment of installments if the purchasers kept up the payments. This they did. After purchasing the property, they built a house upon the lot and moved into and occupied same as their homestead. During their occupancy thereof, the lot was forfeited under a void tax proceeding for the taxes of 1925 and sold to the State in 1926. The property remained on the books in the State Land Office until after the passage of act 129 of the Acts of 1929, which provided for the sale of tax lands to applicants after personal service of a notice upon the owners.thereof, unless such owners were nonresidents or unknown. W. W. Shepard and W. L. Tedford purchased said lot from the Commissioner of State Lands under said act without serving personal notice upon appellant and her husband, although they were residing thereon at the time. At the time of the purchase they did not inform the Commissioner of State Lands of this fact. On June 24,1929, W. W. Shepard and his wife conveyed same by quitclaim deed to appellee. The weight of the evidence reflects that, after appellee obtained a quitclaim deed, he informed appellant and her husband, through his agents, that he had obtained a good title to the lot from the State, which was paramount to their title, and they must pay bim rent or buy the property or move out. The weight of the evidence also shows that, under this misrepresentation and threat, appellee obtained a purchase contract for said lot from appellant’s husband, and that, after the payment to him of $75 by ber bnsband and $125 by her, he executed a quitclaim deed to her husband. The payment of $125 by her was made at the urgent request and insistence of her husband, who feared he would have to. move out of the property, and without any admission on her part that appellee was entitled thereto.
The rule is, as between vendor and vendee, in a conveyance by quitclaim deed, although the vendor makes no covenants which cover a defect in the title, the purchase money can be recovered by the vendee in case the vendor practiced fraud or its legal equivalent upon the vendee. Tune v. Rector, 21 Ark. 283; Diggs v. Kirby, 40 Ark. 420.
The refusal of the chancellor to render a personal .judgment against appellee for $75 in favor of the administrator of the estate of M. D. Pernanzo, deceased, and for $125 in favor of Alice Pernanzo is reversed, and judgments for said amounts in favor of the respective appellants are rendered here, less a remittitur by appellants of $2.23. | [
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Hughes, J.
Appellant, Joshua James, was indicted by the grand jury of Chicot county for the crime of murder in the first degree. He was duly served with a copy of the indictment, waived arraignment and the drawing of the jury, entered his plea of not guilty, was tried, convicted of murder in the first degree, and sentenced to be hanged, filed his motion for a new trial, which was overruled, and appealed to this court.
There are only two questions presented by counsel in their brief for a reversal of this cause. The first is that there was no proof of venue in the original record filed in this court. The venue was- inadvertently omitted, but this was supplied by certiorari, which leaves only one other question in the ease.
Felix Lawson was summoned as a juror in the ease, and, upon being asked whether he was a qualified elector, answered that he was. He was duly accepted as a juror, and served on the case. After the verdict was returned, it was found that said Felix Lawson had not paid his poll tax. This was shown by the list of paid-up poll taxes as cei'tified to by the collector of Chicot county. This is an attempt to raise the question in the case, whether one who has not paid his poll tax, although otherwise qualified, could legally serve on a petit jury. This objection comes too late after verdict. • It was not shown nor contended that the juror was prejudiced, that he was corrupt, or had been bribed, or anything of that kind, and only the technical objection is made that he had not paid his poll tax. Even if the failure to pay his poll tax had been a disqualification as a juror, which we do not decide, still the objection should have been made to the juror before he was accepted as such. It is not shown that appellant cross-examined the juror Lawson on his voir dire, or that he was challenged for cause or peremptorily. It was not attempted to be shown that the appellant was prejudiced in any manner by the presence of the juror Lawson upon the jury. Section 4255 of Sand. & H. Dig. provides that “no person shall be qualified to serve as a grand juryman unless he is an elector and citizen of the county in which he may be called to serve, temperate and of good behavior.” Section 4256 provides that “no person shall serve as a petit juror who is related to either party to a suit within the fourth degree of consanguinity or affinity.” Section 4259 provides that “no verdict shall be void or voidable because any of the jurymen fail to possess any of the qualifications required in this chapter, nor shall exceptions be taken to any juryman for that cause, after he is taken upon the jury and sworn as a juryman.” The appellant should have used some diligence to ascertain the qualifications of the juror before accepting him as one of the jury, and, having failed to do so, and no prejudice appearing, his objection after verdict comes too late.
Cases may be imagined where an objection after verdict to the qualification of a juror might be available, but the objection in this case is not such. In Casat v. State, 40 Ark. 515, Judge Smith delivering the opinion of the court said: “Ordinarily, objections of this sort come too late after verdict. Still it is possible to imagine a case, where a person who had prejudged the matter to be tried might, by concealment or prevarication, impose himself upon the panel. But it ought to appear that the party complaining had availed himself of all the privileges which the law affords him for obtaining an impartial jury. The defendant in a prosecution for felony has an opportunity to examine each individual juror, when he is produced, touching his qualifications, and to challenge him for bias or other sufficient cause.” When the juror Felix Lawson answered that he was a qualified elector, he doubtless thought he was. It was his opinion that he was. He was not asked if he had paid his poll tax, and, if we conclude that this was necessary to qualify him as an elector, no diligence was used to ascertain that fact, and the objection to him as a juror comes too late after verdict.
The judgment is affirmed. | [
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McCulloch, C. J.
Appellants, who were plaintiffs below, allege in their complaint that they are citizens and taxpayers of Bald Knob Special School District in White County, and the action, as originally instituted, was to restrain the board of directors from accepting and paying for a school building then in process of erection by J. Col lis on, one of the appellees. Collison and the sureties on his bond and all of the members of the board of directors were joined in the action as defendants.
It is alleged in the complaint that the school district, acting through its directors, entered into a contract with Collison for the erection of a school building according to the plans and specifications of an architect employed by the board, and that the building was then in process of construction, and was not being built in accordance with the plans of the architect, but was defective to an important extent in workmanship and material, and that notwithstanding the said defects, the board of directors was about to accept the building In that condition and pay the contract price. The defects and damages resulting therefrom were described in the complaint, which then set forth the following allegations: ‘ ‘ That, notwithstanding the fact that the defendant directors on the said date decided, after due examination, that the said work was not in accordance with the plans and specifications, they have not required and now fail and refuse to require the removal of said inferior brick work and are about to -receive and accept said work in its inferior condition to the great damage of the plaintiffs and other patrons of the said school district; that the said inferior work consists in practically one-half of the brick work of said buildings, and, notwithstanding the work is inferior and some of it of its own weight has fallen, the above named board of directors are now about to accept the same and to discharge said Collison and his bondsmen from all liability in accordance with the contract and the plans and specifications. ’ ’
In other portions of the complaint the allegations were sufficient to constitute the charge of collusion between the members of the board and the contractor. The prayer of the complaint was that the board of directors should be restrained from accepting said building as completed under the contract and from releasing the contractor and his bondsmen from the obligations of the contract and bond. The complaint was filed on April 12, 1916, and it does not appear from the record that any action was taken thereon in the way of granting a temporary injunction, but when the court convened for the June term appellants filed an amendment to the complaint, alleging that since the institution of the suit the board of directors had accepted the building and paid to the contractor the balance of the contract price and the further sum of $740.70 in excess of the contract price. It is further alleged that the building was accepted in its defective condition as set forth in the original complaint, and that by reason of those defects the school district sustained damages in the sum of $5,000. The said defective work is fully described in the amended complaint as was done in the original complaint. The prayer of the complaint, as amended, was that appellants as taxpayers recover of the contractor and the sureties on his bond, for the use of the school district, the sum of $5,740.70, as damages sustained by the district. Appellants moved the court to transfer the case to the circuit court of White County and the court made the order for the transfer. Appellees filed in the circuit court a demurrer to the complaint on the ground that appellants had no legal right to maintain the action, and also on the ground that the complaint did not state facts sufficient to constitute a cause of action. The court sustained the demurrer and dismissed the complaint, and an appeal has been prosecuted to this court.
The complaint may not be sufficiently specific, but that defect should have been met by a motion to make more definite and certain rather than by demurrer. Treating the allegations of the complaint in their strongest sense they amount to a charge that the contract for the construction of the building had been violated, but notwithstanding the violation of the contract, the board of directors in fraudulent collusion with the contractor had wrongfully accepted the building and paid the contract price and more, to the injury of the district in the sum mentioned in the complaint. The charge in the com plaint of collusion on the part of the representatives of the district with the contractor was sufficient to establish the right of taxpayers to maintain the suit. Seitz v. Meriwether, 114 Ark. 289, 119 Ark. 271. That was a suit by owners of property in a drainage district to restrain the board of directors from fraudulently paying out funds to a contractor and to recover the funds so misappropriated, and it was there held that the suit could be thus maintained.' In the opinion it was said: “ It is true there is a provision in the Constitution to the effect that any citizen of any county, city or town may institute suit in behalf of himself and all others interested, to protect the inhabitants thereof against the enforcement of any illegal exactions whatever (Constitution of 1874, sec. 13, art. 16). And it has been held by this court that the provision gives authority to a taxpayer to prevent the illegal disbursement of moneys by counties and municipalities. That provision of the Constitution does not include improvement districts, but the principle is the same, and it is the duty of the court of equity to mold a remedy for taxpayers whose interests are involved in the operation of improvement districts.” * * * ‘ ‘In all cases where the district itself had the right to maintain an action to prevent the misappropriation of funds or to recover misappropriated funds, the taxpayers had a complete remedy in the event of the refusal of the board to institute such an action. ’ ’
The chancery court ought not to have transferred the cause, but should have retained jurisdiction on the - allegations of the complaint as amended. However, the cause reached the circuit court, and it was improper for that court to sustain a demurrer, notwithstanding the fact that appellants had chosen the wrong forum in which to seek relief. It was the duty of that court to treat the demurrer as a motion to transfer to the chancery court and to have made the order accordingly. Moss v. Adams, 32 Ark. 562; Newman v. Mountain Park Land Co., 85 Ark. 208; Grooms v. Bartlett, 123 Ark. 255.
The decree is, therefore, reversed with directions to the circuit court to overrule the demurrer and to transfer the cause to the chancery court of White County for further proceedings not inconsistent with this opinion. | [
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Kirby, J.,
(after stating the facts). The case was tried by the court without the intervention of a jury, and without any special findings of facts requested or made or separate conclusions of law stated.
It is insisted that the court erred in treating the complaint as amended to conform to the proof, and that there is not sufficient evidence to support the judgment.
The suit was brought upon the theory of the sale of the materials by the appellee company directly to the appellant company, and the failure to pay the balance due therefor, and apparently decided upon the theory that appellant was the agent only of an undisclosed principal in making the sale of the materials to the Construction Company and in collecting and remitting the money due therefor, the complaint being amended, after the introduction of the proof without objection, to conform and correspond thereto.
If appellant was only the agent, as he claims to have been, in the sale and delivery of the materials to the contractor, he evidently regarded himself bound to the collection and remittance of the money due and received for the materials, and deposited the contractor’s drafts and check paid therefor in his own bank to the credit of his checking account, sending’ the amount due appellee company by his own check after taldng out his commission, etc.
He received the check from the construction company for the balance due the Arkansas Foundry Company, together with the amount due him and his ¡company, deposited it to his own credit in his hank, and sent his own check for the balance due for the materials furnished by the appellee company. This check was put in the hank here, forwarded to the bank at Pine Bluff for collection, and charged against appellant’s account, but the bank failed and was taken over by the Bank Commissioner, who afterwards reversed the charge on the bank’s books against appellant’s account and returned the check unpaid. Appellant made out his claim for all his account in the failed bank, including the $600 not paid out on this •check, which was returned to the payee and afterwards demanded by appellant company, and paid out of the two dividends received on the amount from the failed bank, $120, to appellee company for credit on its account.
Appellant need not have been considered a guarantor of the collection of the account and sale price of the materials delivered by him to the contractor, but, according to his own understanding, he was authorized to collect for the materials, and could, not, of course, accept other than money in payment therefor. The undisputed testimony shows that he deposited the money received for the materials in his own bank to his credit without anything to indicate that he received it on account of or for his principal, or anything to indicate that it was not his own money, and, having so deposited it, he became liable for the loss of it through the bank failure. Of course, if he had deposited it to his principal’s credit or in such a manner as to indicate that it was not to his own personal account, such would not have been the case. Darragh Company v. Goodman, 124 Ark. 532, 187 S. W. 673, 31 Cyc. 1468 (f); see also 2 C. J. 742.
No error was committed by the court in allowing the complaint to be amended to conform to the proof intro duced without objection, since no new or different cause of action was stated thereby. Griffin v. Anderson-Tully Co., 91 Ark. 292, 121 S. W. 297; Shapleigh Hdw. Co. v. Hamilton, 70 Ark. 319, 68 S. W. 490.
The original suit was on account for goods or ma-. terials sold and delivered to appellant, and the facts showed that the materials were delivered to appellant only as agent and by him sold to the Construction Company without disclosure of his principal and with authority to collect and remit the proceeds of the sale.
We find no error in the record, and the judgment is affirmed. | [
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Kieby, J.
Mrs. Alice Tate became a member of the appellant order at the solicitation of its agent and was duly initiated into the local lodge of the order, and a policy of insurance in the sum of $2,000 was issued on her life with Jesse T. Tate named as beneficiary. All premiums due on the policy had been paid, and on August 4, 1931, the insured was killed in an automobile accident, while the policy of insurance was apparently in full force and effect.
Demand for payment was made and liability denied, and, npon a suit filed by the beneficiary, the order defended on the ground that the insured had fraudulently misrepresented her medical history making untrue and false representations about such history as forfeited the policy under the terms of the contract.
After the introduction of the testimony, the court instructed the jury, two of appellee’s instructions being objected to as abstract and misleading, and refused to direct a verdict in favor of appellant, and from the judgment on the verdict against it the appeal is prosecuted.
The policy provided that the application, medical examination, articles of incorporation and by-laws were a part of the contract. In the application and the policy the answers to the questions asked the insured were warranted to be literally true, and otherwise it was agreed that the policy was to be void ab initio.
Among the questions asked were, whether or not the applicant had ever had cancer, whether or not she had ever had abnormal vaginal flow, and whether or not she had ever had an operation or been an inmate of a hospital. All these questions were answered by the applicant in the negative.
The deputy, Mrs. Maude Fields, who took the application, had authority to solicit applications for membership, to instruct in ritualistic work, promote the growth and prosperity of local camps, and organize new camps. The by-laws provided that no benefit certificate should be issued to any applicant until examined by the camp physician. The application was divided into three parts, part one dealing with the family history, and at the top of the page it is provided that it may be filled in by the applicant or deputy, part two dealing with the health and medical history of the applicant must be filled out by the camp physician, and part three was the medical certificate, it being made by the examining physician, the camp physician, Dr. C. P. Burnett of Paducah, Ky.
Mr. Tate paid $1.25 for the medical examination, and when the benefit certificate came to he delivered she was notified but did not have the money and Mrs. Fields, the deputy who was the soliciting agent in this case, agreed to advance the sum for her, and so Mrs. Tate signed the acceptance of the certificate as of July 6, 1931, and left it in Mrs. Fields’ possession until she could get the money to pay the assessments. On August 4, Mrs. Tate was killed in an automobile accident while riding with her husband near Monteagle, Tenn. Mrs. Fields thereupon sent Mr. Tate word about the certificate, which she had, and he reimbursed her to the extent of $6.50, which was paid after Mrs. Tate’s death. The total amount of $7.75 was tendered to appellee in settlement of the policy before suit was brought.
Proof of death was sent in on October 3d, and Mrs. Ida Shelby, a member of another camp in Paducah, Ky., wrote the home office informing them that Mrs. Tate had had an operation for cancer of the uterus before she made application for the policy, and, upon investigation made, the information disclosed being proved to be true, the society declined to pay the claim.
It was stipulated that, after the death of the insured and prior to the filing of suit, the appellant tendered to the appellee all dues and examination fees paid by the insured, and the tender was refused; and that on December 11,1930, the deceased was admitted to the Biverside Hospital of Paducah, Ky., and was operated on there on December 12, “for ulceration and cancer of the cervix, and the uterus was removed and a post operative diagnosis showed ulcer of the cervix and carcinoma; that the operation was performed by Drs. Shemwell, G-oodloe and Fishman; that a copy of the hospital record is attached and may be admitted in evidence; that the history as given thereon was based on facts given by the deceased, Alice Tate, and on her examination .by physicians ; that the application for the insurance was made May 6, 1931, and may be admitted in evidence; that Dr. C. P. Burnett was the camp physician and conducted the medical examination as shown on page 3, and prior to said examination he did not know of the operation, and that, if present, he would testify that he did not know that the operation had been performed on Mrs. Tate; that he asked her various questions appearing on the application, page 2, and the answers were put down as she gave them. ‘ She stated to me that she had not had an operation and had not been an inmate of a hospital. Had I known of the operation which she had on December 12, 1930, and had I been familiar with the hospital records which I have since examined, after the death of Mrs. Tate, showing carcinoma and that there had been a hysterecotomy and removal of the uterus, I would not have recommended her. I did not observe anything in the examination that caused me to believe that she had had an operation. I considered the statements she made as true’.”
It was also shown that Mrs. Fields had written the answers for the medical examination, and she testified that they were correctly written, and the answers about the operation were all in the negative; and the doctor who read the questions again in making the examination was told that she had never had an operation and had never been an inmate of a hospital.
An attempt was made to show that Mrs. Fields, the deputy who solicited the insurance, might have known that Mrs. Tate had had such operation, but she denied having had such information, and stated that she read the questions in the application over and wrote Mrs. Tate’s answers thereto correctly; and that she was then taken to the doctor’s office where he took the application and read it, read to her each question and answer and “asked her if I, Mrs. Fields, had written them down correctly, and she replied, ‘Yes,’ and then the insured signed the application in the doctor’s presence, and it was witnessed by him. She did not write down the doctor’s examination; he made his own examination, and bad received no information from ber or anybody else that sbe bad bad an operation.”
Instruction No. 2, objected to as abstract, reads as follows:
“Tbe jury are instructed that, even though you find that tbe answers contained in tbe application for insurance are false, still if you find that tbe applicant made correct answers to tbe representative of tbe defendant and such representative wrote false answers without tbe knowledge of the applicant, this would not void tbe policy. ’ ’
It is insisted that tbe court erred in not directing a verdict in appellant’s favor, and this contention must be. sustained. Tbe undisputed testimony discloses that tbe insured in ber application made answers to several questions about never having been operated upon nor an inmate of a hospital, and, under the provisions of tbe application, tbe policy or contract of insurance and by-laws such untrue representations and warranties voided tbe policy according- to its provisions. Tbe fact that tbe untrue warranties bad nothing to do with tbe accident or injury makes no difference, since tbe policy would not have been issued if tbe true disclosures bad been made to tbe questions asked, and it was not done.
There is no 'testimony tending to show that tbe answers of tbe insured were not correctly written as given, nor any change made therein after they were written, and tbe said instruction No. 2 was not warranted and is erroneous and prejudicial under tbe circumstances.
The court should have directed a verdict as requested by appellant; and for its error in not doing so tbe judgment will be reversed, and, tbe cause appearing to have been fully developed, it will be dismissed. It is so ordered. | [
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Smith, J.
Appellant filed a complaint in the Grant Chancery Court on September 26, 1931, to foreclose a deed of trust executed to it by Virgil Ballentine and wife on May 1, 1922, to secure the payment of a $600 loan. The deed of trust described three forty-acre tracts of land. A decree foreclosing the deed of trust was rendered for the want of an answer on October 26,1931, and on January 16, 1932, exceptions to the commissioner’s report of sale under this decree were heard by the court. The court found that notice of the sale had been given for the time and in the manner required by law, and that the sale had been conducted in accordance with the notice and the decree of foreclosure. The commissioner testified that only one bid was received, this being a bid for $300 for the three tracts of land, which bid was made bj> appellant. The debt, as adjudged in the decree of foreclosure, was $676.93.
J. R. Matthews, a real estate dealer, testified that he was familiar with the market value of the mortgaged lands and other lands in that vicinity, and that Mr. Bal-lentine had asked him to sell the entire 120-acre tract of land for $700, but he had been unable to get an offer for it, and that three to four hundred dollars was the fair value of the land, inasmuch as the only house on it — a four-room Louse — had tumbled down and the cleared land presented the appearance of not having* been worked for several years and had g*rown up in brush.
No other testimony was offered, and the court made the finding that the bid was “wholly inadequate,” inasmuch as a $600 loan had been made on the property and the .judgment was for $676.93. This appeal is from the decree refusing to confirm the commissioner’s report of sale for the reason stated.
It is said in the briefs in explanation of the decree appealed from that the court did not confirm the report of sale for the reason that appellant’s bid did not equal the amount of the loan secured. This, we think, was error.
There is no intimation of fraud or other inequitable conduct on appellant’s part relating to the sale, except only that appellant did not bid the amount of the debt secured by the deed of trust.
The rule has long been established in this State that mere inadequacy of consideration, however gross, unaccompanied by fraud, unfairness or other inequitable conduct in connection with the sale, is, of itself, insufficient to justify the court in setting the sale aside and refusing confirmation. Of the numerous cases to this effect one of the latest is that of Free v. Harris, 181 Ark. 646, 27 S. W. (2d) 510, where we said: “In Martin v. Jirkovsky, supra, [174 Ark. 417, 295 S. W. 365], this court quoted from George v. Norwood, 77 Ark. 216, 91 S. W. 557, 113 Am. St. Rep. 143, 7 Ann. Cas. 171, the following: ‘When a sale is made in all respects according to the terms of the decree, and neither fraud, mistake nor misrepresentation can be alleged against it, the faith of the court is pledged to ratify and perfect it. * * * There is a uniform current of decisions settling that official sales will not be opened on mere representations that more may be obtained for the property. This well-known practice is in accord with the policy of our law respecting such sales, which are required to be made after advertisement sufficient to give publicity, by public outcry, to the highest bidder. It is of the greatest importance to encourage bidding by giving to every bidder tbe benefit of bids made in good faith, and without collusion or misconduct, and at least when the price offered is not unconscionably below the market value of the property. Nothing could more evidently tend to discourage and prevent bidding than a 'judicial determination that such a bidder may be deprived of the advantage of his accepted bid whenever any person is willing to give a larger price. The interest of owners in particular cases must give way to the maintenance of a practice which, in general, is in the highest degree beneficial.’ ”
No brief has been filed on behalf of appellee, but the suggestion has been advanced in our consultation that the chancellor knew — as we and all others know — that the present is a period of great depression and for that reason the chancellor had the discretion to refuse to confirm the sale and to order a resale, and the case of Winfree v. Jones, 183 Ark. 679, 38 S. W. (2d) 28, is cited to support that view.
That ease, however, was not one in which the parties thereto were seeking to enforce contractual rights. It was a suit for partition of lands among the heirs who had inherited it, which land could not be partitioned in kind because of the large number of heirs, and a sale of the property had been ordered to effect the division. It appeared from the recitals of the decree ordering the sale that the chancellor had been induced to make this order by the statement of one of the heirs made in open court that he would see that the lands brought their fair market value. This the heir failed to do, and the lands were sold for a grossly inadequate price, the sale having been made on a day when twenty banks in the State had closed their doors.
The instant case is not one for partition, as was the case of Winfree v. Jones, supra, but is one to enforce the contractual right of having the mortgaged land sold in satisfaction of the mortgage debt. This relief had been awarded by the court and a sale ordered, and a sale was bad pursuant to the direction of this decree, and the question presented by this appeal is that of the right to have the report of the sale confirmed. We think that right exists and should be enforced. McGown v. Sandford, 9 Paige (N. Y.) 290; Pewabic Mining Co. v. Mason, 145 U. S. 349, 12 S. Ct. 887; Henderson’s Chancery Practice p. 862. Federal Land Bank v. Blackshare, 183 Ark. 648, 38 S. W. (2d) 30.
Now, the law is equally as well settled that, while approval of sales will not be withheld because of inadequacy of consideration, yet, when the consideration is gTossly inadequate, the court will seize upon slight circumstances of fraud or unfairness to afford relief. Union & Planters’ Bank & Trust Co. v. Pope, 176 Ark. 1027, 5 S. W. (2d) 330. But that doctrine has no application to the facts of the instant case. There are no circumstances indicating fraud or oppression, nor is there a showing that the sale was for a price grossly less than the market value at the time of thevsale. The undisputed testimony is to the contrary. The only evidence in the record on the subject is to the effect that the land sold for about its present market value. It is true, of course, that the sum bid by appellant was just half the original loan, but, so far as the record before us discloses to the contrary, the loan may have been made for a higher per cent, of the market value than is customary. However, it is undisputed that the only house on the land was in a “tumbled down” condition, and the cleared land did not appear to have been worked for the past several years, and had been allowed to grow up in brush, and for these reasons the market value was placed at from three to four hundred dollars by the only witness who testified on the subject of value.
The report of sale should, therefore, have been approved, and the decree denying that right will be reversed, and the cause will be remanded with directions to that effect. | [
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Smith, J.
The court below made a finding of fact in which it is recited that, during the year 1930, School District No. 12 of Newton County, known also as Western Grove School District, issued various school warrants. The validity of these warrants is not questioned. Upon presentation for payment to the county treasurer, the warrants were not paid on account of lack of funds in the treasury to the credit of the district. But they were all registered as provided in §§ 8980 and 8981, Crawford & Moses’ Digest, and were so registered during the year 1930. Section 8980 required the county treasurer to-keep in his office a well-hound hook, in which he shall register, by number- and in the order of presentation, all school warrants that may he presented to him for payment. It further provided that “this registration to he made before the warrant is paid, and it shall show the date of the presentation of the warrant, by whom drawn, on what district, and in whose favor, and for what purpose drawn, the amount and date of the warrant, date of payment, and to whom paid; and said hook shall at all times he subject to the inspection of any taxpayer.” Section 8981 provides that: “The order of any hoard of directors, properly drawn after the passage of this act, shall be presented to the treasurer of the proper county within sixty days after it was drawn by the said board of directors. All such orders shall be paid in the order of their presentation. ’ ’
After the issuance and registration of the school warrants here in question, the General Assembly, at its 1931 session, passed several acts to which reference will be made. One of these is act 169 (Acts 1931, page 476), entitled, “An act to provide for the organization and administration of the public common schools.” By this act §§ 8980 and 8981, Crawford & Moses’ Digest, have been repealed. Other acts passed at the 1931 session are as follows: Act 203 (Acts 1931, page 665), entitled, “An act for the relief of the school teachers of the State.” There was passed also act 206 (Acts 1931, page 673), entitled, “An act to make an appropriation of funds for the payment of the salaries of teachers and for other purposes.” There was passed also act 207 (Acts 1931, page 674), entitled, “An act for the relief of the school teachers of the State.”
These three acts last mentioned, -read together, authorized and provided for the creation of a fund to be known as the “State Equalizing Fund,” to be loaned by the State Board of Education, as the administrators of the fund, to the school districts of the State with which to pay the salaries of teachers of such districts. Notes are executed by the districts to cover such loans, the form thereof being approved by the Attorney General. A prerequisite to any loan is the passage of á resolution by the board of directors of the school district requesting the loan. For the payment of such loans, when made, “the full faith and credit of the school'district is hereby-pledged. ’ ’
District 12 of Newton County made application for a loan, and its board of directors passed an appropriate resolution, and, pursuant thereto, executed a note on one of the forms prepared by the Attorney General. This note was dated September 7,1931, and was made payhble October 1, 1932, and recited that: ‘ ‘ This note is payable from the first moneys coming into the treasury of the Western Grove School District No. 12 from the last settlement with the county tax collector, and allotment of State funds, before the maturity of this note, and the board of directors of said school district has created a special "fund in the treasury of the school district for the prompt payment of this note at its maturity, and said fund is irrevocably pledged therefor, as is also the full faith and credit of said school district.”
When the county collector made his settlement and paid into the treasury the funds collected for the account of district' 12, there was not enough money to pay both the warrants registered for payment in 1930 and the note for the money borrowed from the board of education in 1931, as above stated.
As both the registered warrants and the note cannot be paid by the treasurer with funds now on hand, the question arose, Which should be first paid?
Upon the facts stated, the court below declared the law to be that, “* * * upon the registration of said school warrants the holder and owner had a vested right to have said warrants paid under the provisions of 8980 and 8981 of Crawford & Moses’ Digest, which was in effect at the date of the issuance and registration of said warrants. ’ ’
We concur in tins view, for two reasons. The first is that it does not appear that the Legislature of 1931 attempted, either specifically or by implication, to displace the priority of registered school warrants; and for the second reason that such an attempt would he unavailing as impairing the obligation of a contract, contrary to the provisions of both the State and Federal Constitutions.
Legislation should be so construed, if it may be done reasonably, as to render it constitutional, and, with this canon of construction in mind, we are led to the conclusion that the 1931 legislation, supra, did not intend to displace rights which had been acquired before its passage. No language in any of the acts mentioned requires that holding. The law as it existed prior to the repeal of §§ 8980 and 8981, Crawford & Moses’ Digest, supra, advised one about to contract with a school district that he might, after performing his contract and receiving a warrant in payment therefor, register this warrant, and that he would thereafter be entitled to have his warrant paid in the order of its registration. Legislation which postpones this right of payment to that extent impairs the obligation of the contract and is void.
It was held, by the Supreme Court of Washington, in the case of Eidemiller v. City of Tacoma, 14 Wash. 376, 44 Pac. 877 (to quote a headnote), that: “Where the law provides that a treasurer shall pay warrants in the order of their date and issuance, a statute, enacted after the warrants are issued, providing for the diversion of a fund out of which they are to be paid in such order, so that subsequent orders may be first paid, is invalid, as impairing the obligation of contracts.”
The decision in the case of McCracken v. Moody, 33 Ark. 81, involved the application of the same principal. See also Tipton v. Smythe, 78 Ark. 392, 94 S. W. 678, 7 L. R. A. (N. S.) 714, 115 Am. St. Rep. 44.
It is not contended by the Attorney General that legislation is valid which impairs the obligation of a contract The contention is that the 1931 legislation does not im pair the obligation of a contract. But, if the legislation of 1931 is to be construed as diverting funds which would otherwise have been applied to the payment of registered warrants in the order of their registration, we conclude that the obligation of those contracts would be impaired if the payment of those warrants is to be postponed until other obligations of the district have been paid and which obligations were authorized and incurred after the right of prior payment had become vested under §§ 8980 and 8981, Crawford & Moses’ Digest.
The decree of the court below conforms to these views, and it is therefore affirmed. | [
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Mehaffy, J.
The appellant, Broadway-Main Street Bridge District of Pulaski County, had on deposit in the American Exchange Trust Company on November 22, 1930, when the Commissioner took charge, $62,685.45, and held improvement district and school district bonds pledged to it by the depository in the sum of $43,000, of which $6,500 now remains on hand unrealized upon. This was the sole security for the deposit.
The appellant filed an intervention in the Pulaski Chancery Court in the liquidation therein pending, involving the affairs of the American Exchange Trust Company, insolvent. The purpose of the intervention was to establish the basis of intervener’s participation as a secured creditor in the dividends 'payable by the insolvent estate.
The rule adopted by this court is announced in the case of Jamison v. Adler-Goldman Commission Co., 59 Ark. 548, 28 S. W. 35, and followed in Merchants’ Nat. Bank of Ft. Smith v. Taylor, 181 Ark. 356, 25 S. W. (2d) 1048.
In the last case cited, we stated the rule as follows: ‘ ‘ The rule is that when one files a claim he files it for the full amount due at that time. If his claim is secured by collateral, and he collects anything from the collateral before a dividend is paid, then his dividend is calculated on the amount reduced by the amount of the collateral collected. If there is still another collection from the collateral before another dividend, the creditor is entitled to a dividend on the amount reduced by the amount of the collateral received. In other words, he is entitled to a dividend on the amount of his debt at the time the distribution is made, and not entitled to a dividend on the claim as originally filed, if anything has been realized from the collateral.”
The above rule was followed by this court until the enactment of act 107 of the Acts of the Legislature of 1927. That part of the act of 1927 applicable is as follows: “All creditors of a bank of which the Commissioner has taken charge are classifiable either as secured creditors, prior creditors or general creditors. A secured creditor shall be a creditor (1) who has security for his debt upon the property of the said bank of a nature to be assignable under this act, or (2) who owns such a debt for which some indorser, surety or other person secondarily liable for said bank has such security upon the said bank’s property, to the extent in both such instances of the value of such security. The value of the security of a secured creditor shall be determined by converting the same into money (1) according to the terms of the agreement pursuant to which such security was delivered to such creditor or in the absence of applicable terms of such agreement (2) by such creditor and the Commissioner, by agreement, arbitration, compromise or litigation, as the chancery court may direct. The expense of such conversions by such creditor and the Commissioner shall be borne as the said court may direct.”
It will be observed that this act established a different rule as to the payment of dividends to secured creditors. The secured creditor files his claim, but the law provides that the value of the security of a secured creditor shall be determined by converting the same into money, according to the terms of the agreement pursuant to which security was delivered to such creditor. It will therefore be seen, if there is an agreement, that the value of the security is to be determined according to the terms of that agreement. If there are no applicable terms of such agreement,, then, the value of the security must be determined by the creditor and Commissioner, either by agreement, arbitration, compromise, or litigation, as the chancery court may direct. This act establishes a new rule for the payment of dividends to secured creditors.
It was manifestly the intention of the Legislature to change the rule heretofore announced by this court as to' the payments of dividends to secured creditors, but providing that the value of the security of the secured creditors should be determined in the manner named in the act.
Therefore, while the secured creditor must file his claim in the manner provided by law, he receives his dividends as provided in act 107, above referred to, and not according to the rule heretofore followed by this court.
It is the duty of the court, in interpreting a statute, to give effect to the intention of the Legislature in enacting the law; and the law enacted by the Legislature must be enforced according to such intention of the Legislature when ascerthined.
When a statute is plain and unambiguous so that no doubt arises from its terms, it needs no interpretation, and courts must follow such act implicitly. Lewis’ Sutherland Statutory Construction, vol. 2, 694.
This statute either means that dividends to secured creditors are to be paid according to the rule announced in the statute, or it would be meaningless.
It would serve no useful purpose to discuss the rules or authorities, because, if this statute is applicable, and we hold that it is, it must be implicitly followed.
The decree of the chancery court is affirmed. | [
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Smith, J.
On January 29,1931, the First State Bank of Bensenville, Illinois, filed suit in the chancery court of Arkansas County, Northern District, against Thomas T. Taggart, to foreclose a mortgage securing certain notes of Taggart payable to its order. As ancillary to the foreclosure of the mortage, the plaintiff bank caused to be issued a garnishment requiring McGill Brothers to answer what funds they had in hand belonging to the defendant Taggart. The usual bond was given. McGill Brothers answered that they had in their hands the proceeds of a crop of rice belonging to Taggart, which they were ready to pay under the direction of the court, but that they were advised there, were outstanding liens thereon.
At the beginning of the year in which the crop of rice was grown, Taggart borrowed money from his wife, to secure which he gave her a chattel mortgage on his crop of rice and certain personal property. The snm due Mrs. Taggart and thus secured was $416.07. The net proceeds of the sale of Taggart’s rice sold to McGill Brothers amounted to $669.98. From the time the garnishment was issued until th.e following March, McGill Brothers were doing a large business as rice millers, met their obligations promptly, and were in good local credit. After that time they became somewhat dilatory, and on the 26th day of July, 1931, were adjudged bankrupt, with large liabilities and small assets. •
A decree was rendered on December 9, 1931, foreclosing the mortgage, and pursuant thereto a sale was had of the land described in the mortgage, but the sale left a large deficiency against Taggart.
On September 17, 1932, Mrs. Taggart filed an intervention, in which she alleged that the rice had been sold to McGill Brothers subject to. her mortgage, but that by reason'of the garnishment the money had been impounded and lost through McGill Brothers’ insolvency, whereas, but for the garnishment, the rice would have been paid for. She prayed judgment for the amount of her debt secured by her mortgage by way of damages against the plaintiff in the original foreclosure suit and garnishment proceeding and the surety upon the garnishment bond. Mr. Taggart filed a petition in which he prayed that, after his wife’s claim had been ordered paid, the balance due on the rice be paid him under § 5549, Crawford & Moses’ Digest. He alleged that he was a married man and insolvent, and filed a schedule of all his personal property, and claimed the balance due from McGill Brothers after his wife’s debt had been paid as his personal exemptions from the demands of his creditors under the law. The court granted the relief prayed, and this appeal is from that decree.
Authorities are cited in support of the decree below to the effect that property exempted from execution gen erally is also exempt from garnishment, and that the debtor has the right to assert the exemption in a garnishment proceeding at any time before the impounded funds have been lawfully paid to the creditor, and also to the effect that a stranger to the garnishment proceeding may sue for the wrongful conversion of such impounded funds.
It is true that Mrs. Taggart was a stranger to the garnishment proceeding, hut it is true also that McGill Brothers were required to answer only as to the money due her husband. No sum due her was impounded. She had the right to take such action as was adyised for the recovery of any money due her. It is true also that the garnishment against her husband was not wrongfully sued out. McGill Brothers did have money in their hands belonging to Taggart. He alleges this to be a fact himself. It is no doubt true that Taggart had the right to claim his personal exemptions, but he might or might not have asserted this exemption, failing which his creditors had the right to subject the money to the payment of his debt. As a matter of fact, both Mr. and Mrs. Taggart delayed the assertion of the rights upon which they now insist for many months and until McGill Brothers became insolvent. Had they proceeded more expeditiously, their action might have been more profitable.
Under the circumstances, we think there is no liability against the plaintiff in the garnishment, and the decree of the court below must be reversed, and both the intervention and the petition will be dismissed. | [
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McIIaNey, J.
Appellant entered into a written contract with, appellee, dated February 7, 1929, to render to him moving picture advertising service for fifty-two weeks at $18 per week. Tfie contract provided for cancellation thereof by appellee in tbe following language: “This contract subject to cancellation after thirteen weeks’ actual service, at option of advertiser, written notice of such intentions having been given M. P. A. Service Co. on or before 7-30-29.”
Appellee decided to cancel the contract and thought he might do so at any time prior to the expiration of thirteen weeks’ actual service, which he construed to be August 31, 1929. He gave written notice of cancellation August 10, 1929, which appellant refused to accept as a timely notice, performed the service, and brought this action to recover the balance due in the sum of $720. At the close of the testimony appellant requested a directed verdict, which the court refused, and the case was submitted to the jury to determine when the notice of cancellation was required to be given. If they found the contract required notice to be given on or before July 30, 1929, they were to find for appellant. If, however, they found notice could be given up to August 31, 1929, the verdict should be for appellee, except for $36, for which appellee offered to confess .judgment.
The court erred in not directing a verdict for appellant. The clause above quoted relating to cancellation and when notice should be given is not ambiguous. It clearly provides that he shall have the right of cancellation after thirteen weeks’ actual service had been rendered, but that he must give notice of his intention to cancel “on or before July 30, 1929.” The right to cancel depended on the notice required. The parties might have agreed on any other date, but they saw proper to agree that notice should be given on or before July 30. It made no difference whether the thirteen weeks’ actual service was then completed or not.
Since the contract fixed the date on or before which notice should be given in order to have the right to can cel the remainder of the service, notice after that date was ineffectual. The judgment will be reversed, and judgment be rendered here for the amount sued for with interest at 6 per cent, from February 7, 1930. | [
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Humphreys, J.
Appellant brought suit in the circuit court of Poinsett County against appellees to recover damages for the benefit of her son’s estate, for whom she was appointed administratrix, on the alleged ground that he was killed through the negligent operation of its link-belt used to load saw logs, which were piled or stacked on the right-of-way, on to cars. The allegation of negligence was as follows:
“The operator of the link-belt carelessly and negligently, and without any regard for the safety of deceased, put into operation the link-belt and lifted the log from its position, causing the logs on the pile to roll down on him and fatally injure him.”
Appellees filed an answer, denying the allegation of negligence.
The cause was submitted on the 22d day of December, 1931, upon the pleadings and testimony adduced by the respective parties, at the conclusion of which appel-lees requested the court to instruct a verdict for them, which the court announced he would do unless appellant decided to take a nonsuit; whereupon appellant elected to take a nonsuit. The December, 1931, term of court was adjourned until February, 1932, at which time appellant filed a motion to vacate the judgment of nonsuit and continue the cause. The court vacated the judgment of nonsuit, reinstated the action, and dismissed same, to which dismissal appellant objected and excepted, and prayed and obtained an appeal to this court.
Appellant contends for a reversal of the judgment because the trial court, dismissed the cause instead of granting her a continuance. No ground for a continuance appears in the record. We cannot therefore say that the court abused its discretion in refusing to continue the cause.
After sustaining the motion to vacate the judgment of nonsuit and reinstate the cause, the court proceeded to, and did, enter the judgment he would have entered had appellant not taken the nonsuit. As no ground for continuance was shown, this was the only thing left for the court to do, if the undisputed testimony theretofore introduced tended to show no liability on the part of appellees.
Appellant relied upon the testimony of Delbert Turner to show that the operator of the link-belt applied power and raised the log in which appellant’s deceased son had fastened the hooks before he had time to move out of the way, thereby causing a log to roll down from the top of the pile and fatally injure him. Delbert Turner testified that he did not see the log in which the hooks had been fastened by deceased either moved or raised. The most he said when pressed on the point was that he saw the operator apply power. Under the allegation of negligence, it was necessary to show that the operator applied power and raised or moved the log so as to cause a log from the top of the pile to roll down and injure appellant’s deceased.
On account of the want of testimony tending to show liability, the trial court properly dismissed the cause of action.
The judgment is therefore affirmed. | [
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Kirby, J.
This appeal is prosecuted from a directed verdict in appellant’s suit for damages for personal injury caused by the wrecking of appellee’s truck and trailer, in which appellant, with other cotton pickers, were being transported to and from their homes to the place of work in appellee’s cotton fields.
The undisputed testimony shows that appellee, a cotton planter near Parkin, sent his truck, driven by Charley Jones, his regular driver, to Wynne to gather up cotton pickers and transport them to the farm, as was the custom. The driver of the truck announced, as always, that appellee was paying 30 cents per hundred for picking cotton and transporting the cotton pickers to and from his plantation for their work. The driver of the truck did not pick cotton himself.
Appellant had been going with the others picking-cotton on the farm prior to this particular morning. On this morning, after the cotton pickers were loaded into the trailer, it began raining while they were en route to Parkin, and Mr. Cherry, the appellee, ordered the driver of the track to return the cotton pickers to Wynne as it was too wet to pick cotton. On the return trip, the truck pulling the trailer, in which appellant was standing with the others, turned a short corner rapidly, turning the trailer over and injuring appellant and others seriously. The negligence alleged consisted of driving too rapidly, making too short a turn at the corner on the wet pavement, thereby causing the injury.
The testimony was virtually undisputed, and the court directed a verdict against appellant on the ground that the driver of the truck was a fellow-servant of the other cotton pickers, for whose negligence appellee was not liable.
It is insisted that the court erred in holding that the suit for all the injuries could not be brought together and requiring appellant to try his suit separately; and it is also insisted that the court erred in directing a verdict against appellant, and this contention must be sustained.
This case is controlled by the ruling in Haraway v. Mance, ante p. 971, wherein it was held that the driver of a truck engaged in collecting and hauling cotton pickers to the plantation, who were paid so much for picking cotton and transported to and from the cotton fields by the employer, was not a fellow-servant of the cotton pickers, and they did not assume any risk on account of the negligence of such driver.
The undisputed testimony shows here that the driver of the truck pulling the trailer was employed by appellee to gather and transport the cotton pickers to and from” the fields, they being paid so much in addition for picking cotton; that the driver of the truck did not pick cotton. He was ordered, on the morning of the accident herein, to take these people back to their homes because of rain having made the fields too wet for picking. On the return journey, the driver, at a rapid rate of speed, turned a corner too sharply on the wet pavement, turning the trailer over, in wMcli appellant was riding, and seriously injuring lier and others.
The driver of the truck here necessarily represented the master or employer, and was not a fellow-servant of appellant, within the doctrine well established by opinion in Haraway v. Mance, supra, and our other cases reviewed therein. The case is unlike Walsh v. Eubanks, 183 Ark. 34, 34 S. W. (2d) 762, where the driver of the truck transporting other employees of the master for the purpose of assisting him in unloading a car of cement was held a fellow-servant for whose negligence, causing injury to one of such employees, the master was not liable.
The cases might well have been consolidated, as all the injuries complained of by the different cotton pickers arose out of the same transaction and from the one act of negligence; but, since we are reversing the case for an erroneously instructed verdict, we do not determine here whether error was committed in requiring a separation of the trial of the cases.
For the error designated, the cause is reversed and remanded for a new trial. | [
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Wood, J.,
(after stating the facts). (1) I. The business of fire insurance so affects the public interest that it is generally held to be a proper subject-matter for franchise and police regulation by the State. Generally speaking, fire insurance is regarded as a commercial necessity. 14 R. C. L. 857, sec. 25. See Citizens Ins. Co. v. Clay, 197 Fed. Rep. 435; McCarter, Attorney General, v. Fire Ins. Co., 74 N. J. Eq. 372, 18 Ann. Cas. 1048. The public are so largely affected by it that the State undertakes to supervise the business by prescribing the conditions upon which it may be done. But while the business is impressed with a public use, and is therefore of a quasi- public character and subject to license and regulation, it is not so entirely of a public nature that the public have a right to demand service of the companies authorized to do business in the State as they may do of purely guasi- . public corporations or agencies.
(2) If the majority of the members of the bureau, through its governing committees or its manager, should undertake to formulate rules, as conditions precedent to membership therein, that would have the effect to eliminate competition and create a monopoly of the insurance business by certain favored companies to the prejudice of the public seeking insurance, or to the detriment of other insurance companies authorized to do business in the State, it would undoubtedly be within the jurisdiction of a court of equity, at the instance of the Attorney General, or other insurance company injuriously affected by such conduct on the part of the bureau, to restrain the making or the enforcement of such rules. This the courts would have the power to do, not because the statute authorizing the creation of the bureau constitutes the same a public agency, but upon the broad ground of public policy and the power of the court to inhibit companies doing an insurance business from conducting such business in such a manner as to injuriously affect the public.
(3) Since insurance companies are only authorized to do business in the State upon the certificate of the Auditor that they have complied with all the laws affecting them, they are creatures of the State. Kirby’s Digest, sec. 4345. Hence the companies constituting the bureau must conform to the laws and the general policy of the State and do no act, either individually or in concert, that has a tendency to injuriously affect the public or the interest of any other insurance company that is authorized to transact business in the State. See Inter-Ocean Pub. Co. v. Associated Press, 184 Ill. 438, 56 N. E. 822, 48 L. R. A. 568; Western Union Tel. Co. v. State, 76 N. E. 100.
Therefore, if appellant has shown that the bureau is conducted by its manager or governing committees under • such, arbitrary rules as to exclude from the State companies engaged in the dual business of urban and farm insurance, and in a manner to create a monopoly in favor of the other insurance companies and to the exclusion of appellant, as alleged in its complaint, then appellant would be entitled to the relief sought, whether the bureau, under the act, be treated as the mere private agency of its constituent members or as a gwsi-public agency under whose rules and regulations the business of insurance shall be conducted.
II. This brings us to the consideration of the question as to whether the rules adopted by the bureau for assessing its members to meet the expenses incident to maintaining the same are so arbitrary and unreasonable as to unjustly discriminate against appellant in favor of other companies, and to virtually preclude appellant from enjoying the benefits of the bureau, and by so doing to practically preclude it from doing business in the State on the same or equal terms with other companies. The contentions of the respective parties on this issue and the facts mainly relating thereto are reflected in the correspondence set forth in the statement.
It will be observed that the act under which the bureau was organized does not prescribe any rules for assessing its members to meet the expenses, of maintaining the organization. So far as any statutory limitations are concerned, the bureau is left entirely free to adopt its own rules. The purpose of this statute, as all other insurance laws, primarily, is to protect the public who are seeking insurance, and not to confer any private advantage or benefit upon companies doing an insurance business disconnected with the interests of the public.
It was shown that these.bureaus are created in most of the States of the Union, the purpose of such organizations being to place the business of fire insurance on a scientific basis, so that the premiums might be fixed according to the actual risks undertaken, and by thus making rates commensurate with the true hazards the design was that the public should get the benefit of reduced rates growing out of a scientific and systematic conduct of the business.
Several of the States, in 1915, adopted the recommendation of the National Convention of Insurance Commissioners and enacted what is designated a “Model Rating Bureau Bill.” Act 76, Acts of Michigan, 1915; Acts of Missouri, 1915, pp. 313-320; Laws of Pa. 1915, Act 401; Laws of Minn., 1915, chap. 101. These acts require all insurance companies to maintain or become a. member of a rating bureau. The Arkansas act permits the companies to employ a common expert, but it does not require that any company shall employ such expert. The model bill adopted by these States contains a provision that the expenses of the bureau “shall be shared in proportion to the gross premiums received by each member during the preceding years, to which may be added a reasonable fee. ” The act under review, as we have seen, does not prescribe the manlier in which the expenses shall be paid by the members of the bureau. But it was shown that the Arkansas Bureau adopted the same plan as that prescribed in the acts of those States adopting the model rating bureau bill. True, several of the States (Iowa, Oklahoma, Kentucky and Kansas) have enacted rating bureau bills which provide for deducting farm insurance premiums, and in some of them the premiums on other insurance, in making the assessment to meet the expenses of the bureau. But the fact that the method adopted by the Arkansas bureau is modeled after a bill that was recommended by the National Convention of Insurance Commissioners and enacted into law in several of the States is a cogent argument in support of the contention of the appellees that the method of the Arkansas bureau is not arbitrary and unreasonable.
The principal basis of appellant’s contention, that premiums on farm business should not be taken into consideration in making the assessment for expenses, is that the farm business is essentially different from urban business; that the companies who compete for that class of business operate a farm department, with men who devote a lifetime to farm insurance business in charge, and that the actuarial bureau rendered no services that are needed by a farm insurance business; that, on the other hand, the urban business requires that rates be made along scientific lines by experts who must consider each class of risk from the standpoint of ‘ ‘ occupancy, exposure, protection, processes of manufacture,” etc., elements that do not enter into consideration on farm property.
The testimony of the secretary tended to prove that the principal expense of the bureau was incurred in the inspection of urban property and the classification of the same in order to fix a basis of rates for insurance. On the other hand, the testimony of Speed tends to show that the bureau issued a general basis schedule for farm property, and that some service was furnished companies who were members and who were doing a farm, as well as an urban, business. His testimony showed that dwelling houses in cities and towns, like dwelling houses on farms, were not individually rated by the bureau, but were rated by the agents themselves by applying the basis schedule; that most of the risks in towns of less than five hundred people were not individually rated, and that therefore more than 50 per cent, of the risks in cities and towns were not so rated. It was shown that dwellings in cities and towns constituted about 35 per cent, of all the insurance; that farm insurance constituted 7 per cent.; that various other classes of risks in cities and towns, such as tornado, steam railway, per bale cotton contracts, cotton gins, etc., were not individually rated. So Speed testified that it was impossible, with respect to the service the bureau renders, to divide insurance into urban business on the one side, and farm business on the other. He stated that there was practically no difference between the situation of farm risks and the various other unrated risks so far as the service of the bureau was concerned. He further testified that if premiums on farm business were excepted that it would logically follow that all other exceptions that received no benefit from the services of the bureau so far as specific rating was concerned would also have to be excepted, and that it was impossible to devise any plan of assessment that would enable the bureau to pro rate the expense of maintaining same according to the -services actually performed to its various members.
(4) Without pursuing the question of fact further, we are convinced that the method of making the assessments as adopted by the bureau was not an arbitrary and unreasonable discrimination against the appellant. On the contrary, we are convinced that the evidence shows that the plan adopted was the fairest and most equitable that could have been devised when the interests of all the subscribers to the bureau were considered. It is manifest that if exceptions were allowed on farm insurance, then exceptions would have to be allowed also on other classes of business similarly situated, or else the companies writing these other classes of insurance could claim that the assessment was an unjust discrimination as to them. Thus the plan of the organization for raising the necessary funds to meet its expenses and to preserve its efficiency would be subject to perpetual change, and the bureau could have no settled plan at all. Any plan should have in view the interests not of one or a small number of -subscribers doing a certain kind of insurance, but a plan that would operate most equitably upon all the subscribers. The plan adopted was within the discretion of the bureau, and appellant .has no right to continue as a member therein and enjoy its benefits without conforming to the rules, which, so far as the proof shows, the remaining eighty-.four members acquiesced in, as the best plan that could be established for maintaining the work of the bureau. The decree is therefore correct, and it is in all things affirmed.
McCulloch, C. J., and Smith, J., concurring in the judgment. | [
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Hart, J.
C. H. Spencer prosecutes this appeal to reverse a judgment of conviction against him for the crime of forgery. The indictment charges him with having forged the name of Lee Mode to a check for $75 on the Farmers State Bank of Conway in favor of F. W. Morris.
Henderson Spencer testified 'that on the 2d day of March, 1916, C. H. Spencer gave him the check in question at Damascus, Faulkner County, Arkansas, and ¡asked him to present the check to the bank at Conway in Faulkner County and return him the money; that he put the check in his pocket and went to town with his father and presented the check for payment; that he did not tell his father about having the check because he thought the cheek was all right; that he presented the check in payment, and the cashier of the bank refused to cash it and kept the check.
The assistant cashier of the bank testified that the $75 check in evidence was presented at the bank for payment by Henderson Spencer, and that he discovered that the signature to the check was not that of Lee Mode, and refused to pay it; that Henderson Spencer told witness his name was F. W. Morris, that he had sold Lee Mode $75 worth of cattle and the check was for the cattle.
Both the assistant cashier and the cashier of the bank testified that they had compared the check introduced in evidence which the defendant is charged with forging with another check which it is shown that the defendant signed and that in their opinion both the checks were written by the same man; that the defendant had done business with the Farmers State Bank, and that they were familiar with his signature. The check which it is shown that the defendant signed was on the Farmers State Bank, and was payable to Lee Mode and the witnesses pointed out the peculiar way in which the name Mode appears in each check; that the final “e” looked more like an “a” than it did an “e;” that the same person wrote the name of Lee Mode in both checks.
Lee Mode testified that he did not sign the check which the defendant is charged with having forged; that he never bought any cattle from C. H. Spencer or Henderson Spencer, and never gave the defendant a check for $75.
The defendant was shown the $75 check which he is charged with forging and stated that he had never seen it until it was handed to him at the trial. He testified that he did not give that check or any other check to Henderson Spencer and ask him to take it to the bank and cash it for him. He was shown the check which he admitted that he signed and stated that he wrote the name Lee Mode in the check; that the check was payable to Lee Mode. He stated that his custom in writing “e” at the end of a word was to make it a capital.
The evidence was sufficient to support the verdict, and no reversal of the judgment is sought on account of the insufficiency of the evidence. Neither were any exceptions saved to the instructions given by the court. The judgment is sought to be reversed because the court refused to give instructions asked by the defendant. The instructions read as follows:
“1. The court instructs the jury, if you find that the descriptive part of the indictment charges that the check alleged to be forged was signed Lee Mode, then you are instructed that this constitutes a fatal variance, and you must acquit the defendant. ’ ’
“2. The court instructs the jury that an accomplice is one who in any manner participates in the criminality of an act, whether he is considered, in strict legal propriety, as principal, or merely as an accessory before or after the fact.”
•‘3. The court instructs the jury that the witness Henderson Spencer, is an accomplice under the evidence in this case, and you are further instructed that a conviction can not be had upon his testimony unless the same is corroborated by other evidence, which of itself, and without aid of the testimony of the accomplice, tends to connect the defendant with the crime of forgery, and the corroboration is not sufficient if it merely shows the commission of the offense and the circumstances’ thereof. ’ ’
There was no error in refusing instruction No. 1. Mr. Wharton, in discussing the difference between a material and immaterial variance, says, ‘ ‘ The greater rigor of the old English law in this respect was one of the consequences of the barbarous severity of the punishment imposed. A more humane system of punishment was followed by a more rational system of pleading.” Wharton’s Criminal Pleading and Practice (8 ed.), secs. 173 and 273.
(1) Following the rule there laid down in State v. Duffield (W. Va.), 38 S. E. 577, it was held that immaterial variances resulting from clerical inaccuracies in transcribing and misspelling, even of the name forged, are no longer necessarily fatal. To the same effect see State v. Gryder (La.), 32 Am. St. Rept. 358. So, too, Mr. Underhill recognizes that the trend of modern decisions is to permit a wider latitude in the proof and disregard unimportant discrepancies in names and dates, particularly if the names are idem sonans. Underhill on Criminal Evidence (2 ed.), § 421.
In Joiner v. State, 113 Ark. 112, the indictment charged that defendant stole property belonging to one J. R. Reynolds. The proof showed his name to he J. B. Reynolds. It was held that there was no variance between the indictment and proof, if the jury believed beyond a reasonable doubt that the prosecuting witness, J. ,B. Reynolds, was the identical person named in the indictment as J. R. Reynolds. See, also, Woods v. State, 123 Ark. 111; and Bridger v. State, 122 Ark. 391.
In the instant case the proof shows that a man by the name of Lee Mode resided in the neighborhood; that his check at the bank was good, and that the defendant knew him. It was also shown that the final “e” in a word as written by the defendant, resembles the letter “a.” The defendant himself admitted that he always made the final “e” in a word a capital letter, and this fact would account for the resemblance to the letter “a” if the letter “e” should be misshaped. Under these circumstances, we think the court correctly refused to instruct the jury as a matter of law, that there was a fatal variance between the indictment and the proof.
(2-3) We think the court erred in refusing to give instruction No. 2. The instruction as asked contains the definition of an accomplice as laid down in Polk v. State, 36 Ark. 117. No other instruction defining an accomplice was given by the court. It is true the court submitted to the jury the question of whether or not Henderson Spencer was an accomplice, and told it that if it found he was an accomplice, a conviction could not be had upon his testimony unless corroborated by other evidence, etc. But the defendant was entitled to have the jury told what constituted an accomplice. Without this word being defined, the jury might have thought that Henderson Spencer was a joint offender with the defendant, and that a joint offender was not an accomplice. They might have convicted upon his testimony alone. Under the facts as presented by the record the jury might have found that Henderson Spencer at the time of passing the check knew the same to have been forged and might have found that he was guilty of forgery, if he had been on trial for that offense, though the forgery was not his handiwork. Moulton v. State, 105 Ark. 502. Hence they might have believed him to have been a joint offender with the defendant. Of course, it might have found that he was an accomplice, and arrived at its verdict from a consideration of his evidence, together with the corroborating evidence. "We can not tell, however, from the record whether the jury arrived at its verdict by considering the evidence in connection with the proper definition of the word accomplice. Hence it was prejudicial error to refuse the instruction because no other instruction defining the word “accomplice” was given to the jury.
The court did not err in refusing to give instruction No. 3. Under the facts as presented in the record, it was a question of fact whether Henderson Spencer was an accomplice or not, and it was not error to refuse an instruction which assumed that he was an accomplice. Simms v. State, 105 Ark. 16.
For the error in refusing to give instruction No. 2, the judgment will be reversed and the cause remanded for a new trial. | [
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Wood, J.,
(after stating the facts). While there is some confusion in the record entries, yet it appears from the judgment roll proper that B. Forschler had instituted a suit in which D. C. Cash, the Liverpool & Lon-, don & Globe Insurance Company, C. H. Ellis, William Lytle and Abner Hargus were made parties defendant, and at the August term, 1914, the plaintiff by his attorneys elected to take a nonsuit and the cause was dismissed without prejudice and at his cost.
True, the record shows that at the August term, 1913, a stipulation was filed in a case styled “B. Forschler, Plaintiff, v. The Liverpool & London & Globe Insurance Company, Defendants,” in which the parties agreed that that cause should be dismissed by the plaintiff to save costs. The judgment entry of 1914 showing the disposition of the cause against the insurance company and Cash and the other defendants recites that it was a nonsuit and that the cause was dismissed without prejudice. At á succeeding term of the court the present' suit was instituted, in which B. Forschler and Katherine Forschler, his wife, were named as parties plaintiff and the appellees were named as parties defendant. The' defendants moved to dismiss the same, and the court,'at 'the'February term, 1916, dismissed the pres-r ent suit'under ,an order which recites as follows: “On this day’ the amended motion of the defendants to dismiss ’ the cause of action herein coming on to be heard, comes the parties by their ¡attorneys, and after hearing the argument of counsel and the examination of the records of tins cause aLid the exhibits to said motion, and being fully and sufficiently advised as to the law arising cm said motion, finds in favor of the defendants and sustaiiLS said motion to dismiss plaintiff’s complaint. It is therefore considered, ordered and adjudged that the plaintiff’s complaint and the cause of action herein be a Lid the same is dismissed.”
Afterwards, on motion of the defendants, the court corrected this judgment by the nunc pro tune judgment set forth in the statement. But appellees did not attempt to have the court correct the judgment of the court entered at a former term and which, therefore, had become final, showing that in the action which B. Forsehler had originally instituted against the appellees a nonsuit had been taken and that cause dismissed without prejudice. The appellees contend that the present suit was the same suit and the same cause of action, and the court so finds in its nunc pro tunc judgment.
Conceding, for the sake of argument, that this contention and this finding is correct, it does not follow that B. Forsehler would not have the right to maintain this suit. Because in the former action there was a nonsuit and the cause was dismissed without prejudice in August, 1914, and the present suit was begun in November thereafter.
(1-2) Therefore, even though the present suit be for the same cause of action and the same suit as the former, the appellant, B. Forsehler, instituted it within the- time allowed by the statute. (Sections 5083 and 6167 of Kirby’s Digest.) This court has held that a nonsuit, whether voluntary' or involuntary, does not constitute a judgment upon the merits and will not support a plea of res adjudicata. Hallum v. Dickinson, 47 Ark. 120, 125; Floyd v. Skillern, 121 Ark. 454.
Appellees contend that if a bill of exceptions had been preserved and filed by the appellants that such bill of exceptions would show that the present suit had been dismissed at a former term by stipulation of the parties, but the appellees, themselves, by a certiorari, have brought into the record the judgment entry from which it appears, as already stated, that the original suit instituted by B. Forschler against the appellees was dismissed without prejudice to the plaintiff, plaintiff having elected to take a nonsuit. No bill of exceptions in the present case could have the effect to change that record. Appellees do not, and could not, by their motion to dismiss the present suit, change the effect of the judgment of nonsuit and dismissal without prejudice in the original suit. If this suit was dismissed at a former term by agreement of the parties based upon a consideration, and if this could avail appellees as a defense to the present suit it was a matter to be set up by answer and not by motion to dismiss.
In bringing the present suit, the appellants were clearly within their rights under the law, and the court erred in dismissing' same. The judgment is, therefore, reversed and remanded with directions to overrule the motion to dismiss and to reinstate the cause. | [
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McCulloch, C. J.
The defendant, Collin Turner, was tried under an indictment charging the crime of murder in the first degree, and he was convicted of voluntary-manslaughter. The defendant was charged with killing one Joe Hunter in the town of Tinsman, on July 12,1915. The Trilling is not denied. Defendant admits it and attempts to justify it. He and his brother, Walter Tur ner, were separately indicted for the homicide and Walter Turner was convicted of manslaughter and the judgment of conviction was affirmed by this court. Turner v. State, 121 Ark. 40.
It appears that there was great excitement in Tins-man and vicinity concerning repeated burglaries which had been committed from night to night, and armed citizens patrolled the town, taking it by turns. Joe Hunter was on watch a certain night, and there was some sort of encounter between Walter Turner and a party composed of Hunter, and Wallingford, the town marshal, and Johnson, a deputy sheriff, in which Turner received a severe beating. Walter Turner reported the matter to Collin Turner, the defendant, and the next morning they both appeared on the street somewhat indignant, and according to the testimony made threats to whip everybody connected with the difficulty the night before. There was evidence introduced by the State sufficient to show concert of action between the defendant and his brother, Walter Turner, to assault and beat every man found to have been engaged in. the previous night’s difficulty. Hunter was one of the parties singled out by them as a participant in the affray, and threats were made to whip him. Hunter was a barber, and the evidence tends to show that when he came down that morning he avoided Walter Turner, and by a circuitous route went around to the back door of his shop to prevent coming in contact with Turner.
The killing of Hunter occurred about 10 o’clock in the morning, and prior to that time Walter Turner had engaged Wallingford, the town marshal, in a personal encounter and threw him down and beat him when he was finally pulled off. Wallingford had a pistol, which he drew in the affray, and it was taken from Wallingford by the defendant at Wallingford’s request while the two combatants were struggling over it. Defendant states that that was the pistol that he used later when he shot Hunter. The. two combatants were separated, and shortly afterwards Walter Turner and Joe Hunter met on the street, and Walter Turner started toward Hunter, and the latter drew his pistol and began firing. He shot twice and one of the loads took effect in Walter Turner’s arm. The pistol used by Hunter was a two-barrel derringer, and both loads were fired at Walter Turner. It does not'appear that Walter Turner was armed, but at the close of this encounter, when Hunter was turning from it and walking into a drug store, he was shot in the back by defendant, Collin Turner, who came from across the street. Defendant testified that when he fired at Hunter the latter was out in the street with his pistol leveled at Walter Turner, but the testimony adduced by the State contradicts that statement, and shows that Hunter was retiring from the scene and had turned and walked into the drug store when he was shot by the defendant. The witnesses introduced by the State testify that while the difficulty was going on between Walter Turner and Hunter, the defendant started across the street toward them with his pistol in his hand; that when he came within twelve or fifteen feet of where Hunter was standing Hunter turned and walked into the building and the defendant fired at him just as he was going in the building.
(1) There was, as before stated, sufficient evidence to warrant the jury in finding that there was a conspiracy between the two Turners to do violence to the parties engaged in the fight, including the deceased, Joe Hunter, and that the defendant without provocation shot and killed Joe Hunter pursuant to that conspiracy.
Counsel for the defendant present numerous assignments of error, the first of which is that the evidence is insufficient to establish a conspiracy, but that assignment has already been disposed of.
(2) The next one is that the court erred in permitting the State to prove by defendant on his cross-examination that he had once killed another man in that county. Defendant objected to that testimony, but tbe court admitted it with the privilege to tbe defendant of stating tbe circumstances under which tbe former killing occurred, which be did, showing that be was justifiable and that be bad been acquitted. We think tbe testimony was competent as affecting tbe credibility of tbe witness in bis own behalf. Hollingsworth v. State, 53 Ark. 387; Younger v. State, 100 Ark. 324.
(3) Again it is urged that the court erred in refusing to permit defendant to prove by two witnesses uncommunicated threats said to have been made by Hunter against tbe defendant. Tbe offer was to prove by one of tbe witnesses that about six months before tbe killing Hunter bad stated in bis barber shop one day that tbe two Turner boys (defendant and bis brother, Walter) “thought they bad a right to run over everybody and carry a gun,” but that be (deceased) wanted them to understand that be carried.a pistol himself, and if be got a chance be was going to use it on them. Tbe other offer was to prove that Hunter made a somewhat similar1 statement about four months before tbe killing. The undisputed evidence is that Hunter and tbe two Turners were closely related by marriage and that there was no unfriendliness between them up to the time the alleged encounter occurred tbe night before tbe killing. Defendant testified himself that there was no unfriendly feeling between himself and Hunter. He testified that be bad no feeling of animosity toward Hunter; that Hunter bad been renting a building from him, and that be bad patronized Hunter’s barber shop. Unaccompanied threats are only admissible in a homicide case as tending to show who was the aggressor when that point is in doubt. We think that the alleged statements of Hunter were too remote in point of time and apparent foundation to have had any bearing on the question as to who was the aggressor in this difficulty. No prejudice, therefore, re- suited in the refusal of the court to allow< n?j Jmtimony to go to the jury.
(4) It is earnestly insisted that the < mi t erred in giving an instruction in the language of Ea rby’s Digest, section 2387, with a proviso attached making the wnole instruction read as follows:
“The killing being proved, the burden of proving circumstances that justify or excuse a homicide shall devolve on the accused unless by the proof on the part of the prosecution it is sufficiently manifest that the offense committed only amounted to manslaughter, or that the accused was justified or excused in committing the homicide, provided you find from, the evidence in this case, beyond a reasonable doubt, that the defendant is guilty as charged.”
We are of the opinion that this instruction was a very appropriate one in the present case, for the killing of Hunter by the defendant was admitted, and the statute was applicable making it devolve on the defendant to prove circumstances in justification or excuse. Thq rights of defendant were entirely safeguarded by the court in telling the jury in the same instruction that notwithstanding the statutory rule with reference to the burden of proof, it devolved upon the State to prove the guilt of defendant beyond a reasonable doubt. Cogburn v. State, 76 Ark. 110; Walker v. State, 100 Ark. 180.
(5) Two other assignments of error relate to the same subject covered by instructions Nos. 6 and 8, respectively, which were given by the court. In those instructions the court undertook to set forth the law with respect to the rights of one who had brought on a difficulty to invoke the rule of self-defense, and applied this rule to the difficulty between Walter Turner and Hunter, but concluded instruction No. 6 by a statement that no other person “had any greater right, under the law, to shoot and kill Joe Hunter under such circumstances than Walter Turner himself would have had.” Instruction No. 8 on the same subject concluded with the statement that “if the defendant, Collin Turner, knew at the time he fired and killed Joe Hunter that Walter Turner was going on to Joe Hunter for the purpose of provoking a difficulty with him and assaulting him, then neither Walter Turner nor the defendant would have been justified in shooting and killing Joe Hunter.” Those instructions were in accordance with the law stated by this court in Wheatley v. State, 93 Ark. 409, as follows:
“A man can lawfully do for his brother, when threatened with death or great bodily injury, what he can lawfully do for himself under the same circumstances. If the brother is in fault in provoking the assault, he must retreat as far as he safely can before his brother would be justified in taking the life of his assailant in his defense.”
The testimony adduced by the State tends to show that Walter Turner brought on the difficulty with Hunter pursuant to a conspiracy between him and his brother, Collin Turner, and that Walter Turner did not retire from the difficulty, but that on the contrary the defendant, Collin Turner, voluntarily came on the scene and engaged in the difficulty and fired the fatal shot at Hunter while the latter was retiring from the scene. We think the instructions were correct.
The defendant requested the court to give instruction No. 4, which reads as follows:
“You are instructed that if you find from the evidence that the deceased had shot Walter Turner, who was unarmed, with a pistol, and wounded him, and that Hunter was apparently in the act of again shooting Walter Turner with said pistol at the time defendant shot him, then you are told that the defendant was justified in shooting deceased, and you will find him not guilty.”
The court refused to give the instruction as requested, but gave it as modified by the addition of the words “unless Walter Turner had brought on the fight.” The instruction in the form requested by defendant was erroneous for the reason that it ignored the question of who was the aggressor in the difficulty, and whether or not Walter Turner, if the aggressor, had attempted to rer tire, and the addition by the court tended to neutralize the evil effect in that respect. The modification had that effect, but it did not make a complete instruction, and if the court had been asked to do so it should have inserted the statement with respect to the right of self-defense to an aggressor after he had sought to retire from the difficulty. That idea was properly embraced in other instructions, but the defendant did not ask that it be incorporated in the one now under discussion but merely contented himself by asking an erroneous instruction and objecting to the action of the court.in adding words which neutralized the evil effect of the instruction in the- form that it was asked. We think, therefore, that defendant is not in a position to complain of the failure of the court to incorporate an element in the instruction which he did not ask for. The same may be said with reference to thq assignment of error concerning the court’s modification of instruction No. 6.
Upon the whole we find no prejudicial error in the record and the judgment is affirmed. | [
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Humphreys, J.
Appellant was indicted at the March, 1916, term of the Garland Circuit Court for the crime of manslaughter, and at the September, term thereof was tried and convicted on said charge and his punishment fixed by the jury at imprisonment in the State penitentiary for a period of twelve months. He filed his motion for a new trial, which was overruled, after which judgment was rendered and sentence imposed, from which judgment and sentence he has appealed to this court.
J. 14. Stratton, who had been stricken with paralysis, employed appellant to treat the disease according to a fasting and water cure, which was being practiced by appellant. The fasting and water cure, practiced by appellant on his patients, required the patient to totally abstain from the use of foods, and drink all the water possible. Appellant took J. E. Stratton through a thirty-five-day fast. Stratton was seized with a severe attack of hiccoughs during the last seventy-five hours of the fast, and in order to relieve him and prevent death therefrom, appellant placed a wide leather strap around his body and buckled it up as tight as he could draw it. Mrs. Stratton became alarmed and insisted upon calling in other physicians. Appellant protested and insisted that he be permitted to continue the fasting and water cure. After consulting friends, Mrs. Stratton decided to call in other physicians. Appellant reluctantly yielded, and when the physicians came, advised against the use of a stimulant or strong medicines and rich foods. Appellant was discharged and Doctors Cox and Smith were employed. "When they took charge of the patient, he was in a semi-coma, his pulse was weak, fast .and intermittent. They gave him a hypodermic of spartein and then treated him for hiccoughs and a weakened condition. He recovered from the hiccoughs but never recovered from the weakened condition and died at the expiration of five days.
The evidence on the part of the State tended tp show that the treatment prescribed and administered to J. E. Stratton by appellant was irrational, unreasonable unscientific and was the proximate cause of his death.
The evidence on the part of appellant in a measure tended to show that the fasting and water cure, as practiced by him,, was rational, reasonable and scientific and had wrought wonderful cures, and that it might have worked a cure on Stratton had he been permitted to continue the fast.
The cause was submitted to the jury on the theory that one who practices medicine for q remuneration would be guilty of involuntary manslaughter if death resulted to the patient on account of gross ignorance or lack of skill in selecting and administering the remedy. The instruction embodying this idea correctly declared the law as applicable to the theory advanced by the State.
The appellant’s theory was to the effect that the remedy chosen was rational, reasonable and scientific; that the remedy chosen had been administered in a skillful manner; that the same remedy administered in the same way by him to other patients had greatly benefited and cured them; that this remedy had been selected and administered in good faith, believing it would cure the patient; that it was not the proximate cause of the death of J. R. Stratton, but if it were, that it was a mistake of judgment and not the result of gross ignorance and unskillful treatment on his part.
This court said in the case of State v. Hardister and Brown, 38 Ark. 605, quoting the syllabus: “For a mere mistake of judgment in the selection and application of remedies, resulting in the death of his patient, a physician is not criminally liable; but when death is caused by gross ignorance in the selection or application of remedies, by one grossly ignorant of the art he assumes to practice, he is criminally liable.”
None of the instructions given clearly present the theory of appellant. Evidence was adduced at the trial showing that appellant possessed in a degree both knowledge of and skill in the use of the fasting and water cure, and that he had practiced it successfully.- The evidence in the record warranted an instruction allowing for a mistake in judgment. Appellant was at least entitled to an instruction-defining the difference between a felonious lack of knowledge and skill, on the one hand, and a mere mistake of judgment, on the other. In other words, the jury should not have been left in a position to confuse a mistake of judgment with gross ignorance or lack of skill.
(1-2) The second instruction asked by appellant and refused by the court correctly presented the law applicable to the theory advanced by appellant, and to which he is entitled upon the whole record. That instruction is as follows:
“Involuntary manslaughter is the involuntary killing done without design, intention or purpose of killing, but in the commission of some unlawful act, or in the improper performance of some lawful act.
“For a mere mistake of judgment in the selection and application of remedies resulting in the death of his patient, a physician is not criminally liable, and whether one who assumes to practice medicine is grossly ignorant of the art or the selection of remedies or their application, or inapplicable or rashly applied, are all questions to be determined by the evidence.”
It is insisted that the court committed error in declining to give instruction No. 9, on the presumption of innocence, requested by appellant. This subject is fully covered in the instructions given by the court to the effect that the burden of proof was on the State to prove defendant’s guilt beyond a reasonable doubt.
It is also insisted that an error was committed because the prosecuting attorney referred to the fact that appellant did not have a license to practice medicine. The court indicated that it was an improper argument, as that issue was not involved in the case. It is unnecessarv for us to comment upon it, as the prosecuting-attornev will not likely repeat the statement on a new trial.
It is insisted that the court committed an error in using the words “unlawful act” in the first instruction. It is pointed out by appellant that he was indicted for the commission of a lawful act “without due caution and circumspection.” The court in giving instruction No. 1 defined involuntary manslaughter, and it is apparent that that portion of the instruction referring to a killing in the commission of an unlawful act was not intended as a direction to the jury in the instant case. It was merely used as a part of the statutory definition of manslaughter. It may have been just as well and perhaps better to have left it out, but no prejudicial error was committed by the court in the use of the words in the manner in which they were used in the instruction.
(3) It is strenuously insisted that the court erred in refusing to permit appellant to read excerpts to the jury from a book entitled “McFadden’s Physical Culture.” This court said, in the recent case of Scullin et al. v. Vining, 127 Ark. 124, 191 S. W. 924, that it is proper to read extracts from standard medical authorities upon the subject matter involved to an expert witness and to ask him whether he agrees or disagrees with the authorities to test the knowledge of the expert and do ascertain the weight of his testimony; and in that case clearly approved the rule that excerpts from such books can not be read to a jury as original and affirmative evidence.
It is insisted by appellant that instruction No. 13, given by the court, in effect told the jury the extent of punishment they should inflict if they found appellant guilty. Appellee concedes that the instruction was unfortunately worded. The court should have told the jury that in case they found appellant guilty, as charged, they should fix his punishment at some period in the penitentiary not to exceed one year. As the case will be tried again, it is unnecessary to go into the question of whether the instruction given by the court was so worded as to direct the jury to fix a certain punishment.
For the error indicated, the cause will be reversed and remanded for a new trial. | [
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Bunn, C. J.
The indictment in this case in part reads: “The grand jury of said court accuse said defendant of said crime committed as follows, viz.: Said defendant, in said county on 24th July, 1899, unlawfully, wilfully, deliberately, maliciously, premeditatedly, and feloniously with a pistol did assault, shoot, and kill one Sullivan, a human being, whose Christian name is unknown to the grand jury.” On the trial the deceased was shown to have been named Durbyn Griggs by tlie testimony in the case. The indictment being for killing Sullivan, whose Christian name only was unknown, proof that Durbyn Griggs was killed does not identify the person of deceased, nor sustain the allegations of the indictment.
Reversed and remanded. | [
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Smith, J.
Suit was brought by the Farmers’ & Merchants’ Bank of Bearden, Arkansas, against M. E. Cala-way, who is the widow of J. C. Calaway, deceased, and certain persons as garnishees, and the following facts were alleged as constituting its cause of action.
The bank recovered a judgment on October '23,1930, for $1,045.28 against M. E. Calaway and one E. C. Hawkins, upon which .judgment an execution was issued and returned unsatisfied. Mrs. Calaway had indorsed a note for Hawkins at the bank.
The Stout Lumber Company made a contract to sell certain lands in Calhoun County, which was evidenced by its bond for title to J. C. Calaway, and another to C. L. Witherington, which last-named contract was assigned by Witherington to J. C. Calaway. The payments contracted for were finally made, but before their completion Calaway contracted to sell the lands to William and Emma Boyett for the sum of $2,600, evidenced by ten notes each for $260, payable one note each year, and the last maturing November 1,1934. Calaway gave the Boy- etts a bond for title, wbicb obligated him to convey tbe lands to them upon tbe completion of tbe payments. Tbe Boyetts paid tbe first five of these notes to mature. Mrs. Calaway, tbe wife of J. C. Calaway, did not join ber bus-band in tbe execution of this contract to convey to tbe Boyetts. Tbe complaint alleged that Mrs. Calaway bad acquired tbe title of ber husband to these lands by a deed to ber from him, or, if not so, that she bad acquired tbe equitable title by the indorsement and delivery to ber of the unpaid purchase money notes executed by the Boyetts.
Attached to tbe complaint were certain interrogatories which it was prayed that Mrs. Calaway and the Boyetts be required to answer under oath, showing the interest now owned by Mrs. Calaway in tbe lands and the balance of purchase money still due on tbe notes.
It was prayed that the lumber company be required to execute deeds to Mrs. Calaway, and that the Boyetts be required to pay into court tbe balance of purchase money due by them, or that their interest in the lands be sold, to tbe end, that tbe plaintiff bank have satisfaction of its judgment.
The contract of sale between J. C. Calaway and tbe Boyetts provides that, if they shall fail to make tbe payments, or any of them, within thirty days after maturity, tbe contract should then and in that event be considered and declared a rental contract, “and the said William Boyett and Emma Boyett shall pay the said J. C. Cala-way, or to his heirs and assigns, the sum of two hundred dollars per year as rent on said lands, and the said J. C. Calaway shall have a lien on any and all crops raised on said lands for his said rent; ’ ’ but that, if the payments were made as contracted, he, Calaway, would convey, or cause to be conveyed, to the Boyetts the said lands with warranty of title.
A separate answer was filed by Mrs. Calaway, in which she admitted that the plaintiff bank had a judgment against her which she had not paid. She alleged that, if her husband had executed a bond for title to 'the Boyetts, she was not a party thereto; “that she did not sign away any of her rights in and to said lands, and she specifically claims her dower rights in and to said lands as the widow of the said J. C. Calaway, deceased.” She alleged that default had been made in the payment of the notes to her husband’s order, and that the bond for title to the Boyetts had forfeited on that account, and that the lands now belong to her children, the heirs at law of her husband, subject to her dower. She therefore prayed that the complaint against her be dismissed, and that the lumber company he required to execute deeds in accordance with its bonds for title, and that dower be assigned to her.
An intervention was filed in the case by Ella String-fellow and Docia Bailey, who alleged that they were the only heirs at law of J. C. Calaway, which pleading recited the execution of the bonds for title to J. C. Calaway and C. L. Witherington, and the assignment to Calaway of the bond for title by Witherington, and alleged the payment in full of the purchase money due under both contracts. This pleading also alleged the execution of the contract by Calaway to convey the lands to the Boyetts, and that instrument was made an exhibit to their intervention. Interveners alleged the default of the Boyetts in making their payments, and prayed that the lumber company be required to execute deeds to them as the heirs at law of their father, subject to the dower right of their mother.
The Boyetts filed an answer to the plaintiff’s interrogatories in which they denied that they were indebted to Mrs. Calaway in any sum. They also filed a separate answer in which they alleged that they had paid $1,300 of the $2,600 purchase money which they had agreed to pay, and that four of these payments had been made to Mrs. Calaway after the death of her husband, and they therefore alleged that Mrs. Calaway was not entitled to dower in said lands. They alleged that they were at all times ready, willing and able to pay the balance of purchase money, but did not make the payments because the notes were in tlie possession of the plaintiff bank and the title to the lands was in dispute, and that Mrs. Calaway had refused to join in the execution of a deed to them. They therefore prayed the return to them of the $1,300 which they had paid.
The lumber company filed an answer, in which it admitted the receipt in full of the purchase money due it, and prayed the direction of the court as to the execution of the deeds, which it offered to make.
The plaintiff bank filed an amendment to its complaint, in which it admitted that it had possession of the five notes remaining unpaid by the Boyetts, but alleged that the possession thereof had been delivered to it by Mrs. Calaway for safekeeping. It was prayed that any proceeds of the notes be impounded and applied to the bank’s judgment.
Mrs. Calaway filed an answer to the amended complaint of the bank, in which she admitted delivering to the bank five notes of the Boyetts payable to the order of her husband, but disclaimed any interest in them.
The interveners, Ella String-fellow and Docia Bailey, filed an answer to the bank’s amended complaint, in which they alleged that any unpaid notes of the Boyetts are a part of the estate of J. C. Calaway, deceased, and are not subject to the debts of his widow.
Mrs. Calaway filed a response to the intervention of her daughters and to the amended and substituted answer of the Boyetts. In this pleading she alleged that the Boy-etts were at all times aware of her interest in the lands, and denied their offer to pay the balance of purchase money, and denied their right to recover payments made, but alleged that, under the contract which they failed to perform, the payments made should be treated as rent. She denied that she had received any payment from the Boyetts. She prayed that, if the Boyetts be allowed to recover payments made, they be charged with the rent upon the lands which they had contracted to buy.
The Boyetts filed an amended and substituted answer and cross-complaint, reciting many of the facts hereinabove stated and alleging that, inasmuch as Mrs. Calaway had not signed the contract to them, and refused now to execute a deed conveying her interest, their contract was rescinded, and they prayed judgment for the payments of purchase money made, and it was prayed that this sum be decreed to be ‘‘prior and paramount, in point of equity, to the rights of the plaintiff or to those of the widow and heirs of J. C. Calaway,” and, in the alternative, it was prayed that, if the right of rescission is denied, the court decree them a title free from the dower claim of Mrs. Calaway.
Upon the issues raised by the pleadings, much testimony was taken in support of the respective allegations. The plaintiff bank became insolvent, and was taken over for liquidation by the State Bank Commissioner, who was substituted as party plaintiff.
The decree in the cause recites an extended finding of facts upon the testimony as follows: The lumber company has been paid the purchase money due it. Mrs. Cala-way never at any time conveyed or contracted to convey, her right of dower, and never received a deed to the land- from her husband. This was the principal question of fact in the case. It appears that Calaway, in his lifetime, executed a deed to his wife for all the lands. But the deed was never recorded, and the court found that it was never delivered. This deed was dated September 27, 1926, and Mr. Calaway died on January 23, 1927, but the deed was found in 1929 in a different bank at Bearden with other papers belonging to Mr. Calaway, where he kept a number of important papers, among these being a fire insurance policy. The insured property was destroyed by fire, and in searching for the policy the deed was found. Mrs. Calaway testified that she knew nothing of the execution of the deed, and that it had never been in her possession.
The law as to the delivery of a deed is that, in order to constitute a delivery of a deed, it must be the intention of the grantor to pass the title immediately to the land conveyed, and that the grantor shall lose dominion over the deed. Davis v. Davis, 142 Ark. 311, 218 S. W. 827. There is some conflict in the testimony, hut we think the finding of the chancellor that Mr. Calaway had not delivered the deed to his wife, but had retained dominion over it, is not contrary to the ■ preponderance of the evidence.
It was also contended by the plaintiff bank that the purchase money notes which the Boyetts had not paid had been assigned to Mrs. Calaway by her husband, but the decree indicates that the court did not sustain that contention. The notes executed by the Boyetts appear to •have been made payable to J. C. Calaway or Ella Cala-way. These unpaid notes are copied into the transcript and read as stated, but it is stated in the briefs that the originals of these notes, which are not before us, show that the name of Mrs. Calaway was added by interlineation, was written in a different handwriting and with different ink. However this may be, Mrs. Calaway testified that 'the notes were never in her possession, and were never claimed by her. Note No. 6, executed by the Boy-etts, was not indorsed, but the name of J. C. Calaway was written on the back of notes Nos. 7, 8 and 9, and on the back of note No. 10 appears the following indorsement: “For value received, I hereby transfer and assign note to Mrs. M. E. Calaway. (Signed) J. C. Calaway.” No explanation appears as to the time when nor the purpose for which Mr. Calaway indorsed notes Nos. 7, 8 and 9. It may have been when using them as collateral.
The fact remains, however, that these notes were given for purchase money of lands the title to which, under the findings of the court, has failed, and the notes are without consideration and are therefore void, and we are not therefore required to pass upon the conflicting testimony as to whether Mrs. Calaway ever owned any interest in them during the lifetime of her husband. She testified that she had never at any time been in possession of any of these notes, and had never claimed, any interest in them. Mrs. Calaway has no dower interest in these notes which can be subjected to the satisfaction of the bank’s .judgment, for the reason that the notes are void as being without consideration.
As Mrs. Calaway declined to convey her dower interest in the lands, for the reason that she had never contracted to do so, the Boyetts conld not be required to accept a deed which did not convey that interest, and the Boyetts have not appealed from the decree.
The court found that twenty acres of land, which constituted a part of Mr. Calaway’s homestead, had been conveyed by him and his wife to their children, and that they had the right to make this conveyance “free and clear of all rights of creditors, ’ ’ and this part of the decree does not appear to be challenged.
Having found that the contract to convey to the Boy-etts could not be performed, the court gave them judgment for the payments made by them, and charged them with the rental value of the lands.
It is argued that the Boyetts were not charged enough rent, and that judgment was rendered in their1 favor for an excessive sum, and that, if judgment was rendered against them, and not for them, Mrs. Calaway’s interest in this judgment would be subject to the judgment of the bank.
The decree of the court declared the sum due the Boyetts was a lien upon the lands, “which is superior and paramount to all rights and interests of all parties to this suit except the dower interest of Mrs. Calaway.” The bank therefore insists that it is vitally interested in the amount of a judgment to be rendered in favor of the Boyetts, and that the judgment rendered in their favor was excessive. The testimony as to the amount for which the Boyetts should have judgment is undisputed, and may be arrived at by simple calculation. The testimony is in conflict, however, as to the amount for which they should be charged for rent, and, without reviewing this testimony, we announce our conclusion to be that the finding of the chancellor upon this subject does not appear to be contrary to the preponderance of the evidence.
It was decreed that the heirs of J. C. Calaway, his daughters, Ella String-fellow and Docia Bailey, have title to the lands, subject to the dower right of their mother and to the lien of the Boyetts, and- neither the Boyetts nor the heirs have appealed.
The court decreed that an attachment which had issued should be discharged except as to the dower interest of Mrs. Calaway. As to this interest, the attachment was sustained, and it was ordered that that interest be sold in the manner there provided.
Upon the whole case we are of opinion that the findings of fact made by the chancellor are not contrary to the preponderance of the evidence, and that the decree accords with the principles of equity. It is therefore affirmed. | [
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McHaNey, J.
Tlie county boards of education of Crawford and Washington counties sought to. combine Mountainburg School District No. 16, Schaberg School District No. 69, and Armada School District No. 93 in Crawford County, Arkansas, and two sections of land in Mt. Olive School District No. 30 of Washington County, under § 53 of act 169 of 1931, commonly known as the “school law.” This section provides for the formation of school districts embracing territory in two or more counties. The procedure provided for in the second paragraph of that section was resorted to in this instance to effectuate the consolidation. It appears from the record that the two sections of land in Washington County which were sought to be included were wild and unoccupied. No person resided on said sections. The county boards entered an order creating the district, but on a trial de novo in the circuit court this order of consolidation was vacated and quashed.
For a reversal of the judgment of the circuit court, it is first contended that the court erred in issuing a writ of mandamus against appellant directing it to send up the record for trial de novo. It is contended that no appeal was taken as provided by law. We think appellant is in error, as, in the view we take of the matter, the order of the county board was void and was subject to be quashed, either by appeal or certiorari. The whole proceeding for the consolidation of the three districts was void for failure to comply with the applicable section of the “sehool law,” § 44, and not § 53. We think the procedure prescribed in § 53 was not open to appellants in this case for the reason that in reality it was not sought to form a district embracing territory in two counties. We' think the record clear that a small amount of territory in Washington Connty was included in the scheme of consolidation in order to avoid the procedure necessary to a consolidation under § 44. The real object of the consolidation was for the Mountainburg District to take in the territory of the Schaberg and Armada districts without the consent of the qualified electors in the latter districts. We do not think a fair construction of the ‘‘school law” would permit, the Mountainburg District to take over the other two without their consent by including two sections of uninhabitated wild land in Washington County. Section 44 provides, in express terms, that “no existing district shall be included in a new district under the provision of this section unless the 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.” The effect of this proceeding is for Mountainburg District to take Schaberg and Armada districts without their consent.
The circuit court correctly quashed the proceedings and order of the county board of education, and this judgment is therefore affirmed. | [
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Wood, J.
The appellants instituted this suit against the appellees to recover damages to a wagon and team caused by a collision with a train of the railroad company at a public crossing south of Luxora, January 10, 1916. The pleadings are not abstracted, but appellants concede that the evidence was sufficient to sustain the finding in favor of the appellees on the facts. Appellants contend, however, that there was also evidence that would have warranted the jury in returning a verdict in their favor, and they insist that the court erred in granting and refusing prayers for instructions.
We gather from the evidence set forth in appellant’s abstract and the instructions given by the court that the negligence upon which the appellants predicated their cause of action was the alleged negligence of the employees of appellants in failing to keep a lookout as required by the statute and in failing to give the warning required by the statute on approaching public crossings.
Among- other instructions, the court gave the following: “Under the record here, gentlemen, as made up from the evidence in this case, your verdict should be for the plaintiff unless you find that at the time of the alleged injuries and damages, the employees in charge of the train which struck these mules and wagon, killing one mule, injuring another one, and demolishing the wagon, were at the time keeping an efficient lookout, as required by the laws of this State, and that after discovering the property in a dangerous position at or near the track the employee in charge of the engine exercised every means at his command consistent with his own and the safety of the other employees upon the train to avoid the injury to the property and was unable to do so. If you so find, your verdict should be for the defendants, unless you further find, gentlemen of the jury, that just before the injury complained of here the employees in charge of the train had failed to comply with a certain statute of this State, which requires all railroad companies to give warning at a distance of eighty rods from public crossings, such warning to be either by ringing the bell or sounding the whistle. That it was not only the duty of the employees of the railway train to sound the whistle the distance—or ring the bell—a distance of eighty rods north of the crossing but it was their duty to continue to give the warning until they reached the crossing. It is contended by the plaintiffs in this case that such warning was not given by either ringing the bell or sounding the whistle. If you so find from a preponderance of the evidence in this case, then, notwithstanding the fact that an efficient lookout was maintained by an employee, or the employees, upon the train, your verdict should be for the plaintiffs. But if you find that such warning was given, either by ringing the bell or sounding the whistle at the distance mentioned, and just prior to the injury complained of that an efficient lookout was maintained at the time and by the exercise of the degree of care mentioned to you in an instruction given to you, and the use of the means at the command of the engineer, the damage could not be avoided, your verdict should be for the defendants.”
(1) The instruction was given by the court on its own motion, and the first draft of the court’s instrution did not contain the words, “ That it was not only the duty of the employees of the railway train to sound the whistle the distance—or ring the bell—a distance of eighty rods north of the crossing but it was their duty to continué to give the warning until they reached the crossing.”
The language last above quoted was given at the appedant’s instance, the court remarking that this clause “may be added to the instruction given.” The effect of the appellant’s request and of the court’s ruling granting the same was to embody the language of the clause above quoted in the instruction given by the court.
Appellant further complains because the court refused to add to the above instruction, in effect, the following: That if the employees in charge of the railway train failed to sound the whistle or ring the bell a distance of eighty rods north of the crossing and to continue to give the warning until they reached the crossing, and thereby contributed to the injury, the verdict will be for the plaintiff.
Counsel argue “that it was useless to tell the jury that it was the duty of the defendant to give the signal a distance of eighty rods and to continue to give it until the crossing was reached if the failure to do so did not affect the liability of the defendant,” and that therefore the court erred in not granting the prayer “that if they failed to do so and thereby contributed to the injury the verdict would be for the plaintiffs.”
In Prescott & N. W. Railway Co. v. Henley, 124 Ark. 118, we said: “In this class of cases, contributing to the injury on the part of a tortfeasor is, in the eye of the law, precisely the same as causing it. No gradation is tolerable. * * * If the acts of negligence contribute to cause the injury, it was precisely the same, in legal effect, as saying, ‘if they caused the injury.’” But, while this is true, the court did not commit prejudicial error in refusing to grant appellant’s prayer containing the words “contributed to the injury” for the court plainly told the jury, in its instruction, that if appellee’s employees failed to give the statutory signals their verdict should be for the plaintiffs. This was tantamount to telling the jury that if there was a failure to give the signals as required by the statute, that this, under the circumstances, caused the injury. The instruction in this form certainly was as favorable to appellants as they had the right to ask, and they are not prejudiced by the ruling of the court in refusing their request, for if it had been granted it could not have made the instruction any stronger in appellants’ favor.
(2) Under the instruction, if there was a failure to give the warning signals as required by the statute, the jury were not left to determine whether such failure contributed to, or caused the injury, but the court declared as a matter of law that if there was such failure the appellee railway company was hable. Surely appellants have no cause to complain of an instruction like that.
The judgment is therefore correct and it is affirmed. | [
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Bunn, C. J.
This cause originated in three several actions of ejectment, by the appellants, as the only heirs at law of the late Roswell Beebe. The first suit was against the city of Little Rock, and the City Fuel Company, and W. L. Greer, to recover the tract of land in said city bounded on the east by Cumberland street, on the west by Main street, on the south by Water street, and on the north by the Arkansas river. The second suit was against the city of Little Rock and Neimeyer & Darragh, for the recovery of the tract of land or lot in said city bounded on the east by Broadway street, on the west by Arch street, on the south by a line 140 feet north of and parallel to Water street, and on the north by the Arkansas river. The third suit was against the city of Little Rock and the Athletic Association for the recovery of a strip of land in said city bounded on the south by Water street, on the east by Main street, on the north by the Arkansas river, and on the west by a line one hundred and fifty (150) feet west of and parallel to Main street. The first strip or parcel of land is not further described by reference to plat or numbers. The second tract is further described in the complaint as the northern part of block 185, according to the plat of Beebe, filed with his bill of assurances December 26, 1839, being the north fractional half of that block fronting on the Arkansas river, and therefore with irregular north boundary, the west end being (from the plat exhibited) more than 150 feet, and the east end less than .150 feet wide. The third strip or tract is not further described in the complaint by reference to map or number.
The same plaintiffs, and none others, being in all three of the suits, and the city of Little Bock being the common defendant in all of them, the other defendants being merely tenants and lessees of the city, and withal each of the suits involving identically the same legal propositions for the most part, they were all heard and determined in the lower court as one suit, and will be so heard here.
In support of their complaint as the owners of the tracts of land in question, plaintiffs exhibit and declare upon a patent from the United States government, dated September 25, 1839, which conveyed to Boswell Beebe, ancestor of plaintiffs, the congressional subdivision of the land including the parcels of ground in controversy. They also allege that defendants had been in possession of the ground in controversy without right for ten years next before the filing of their complaint herein. But they say that they instituted suit in the Pulaski chancery court for this same property against these same defendants, on the 2d day of April, 1866, which was dismissed without prejudice on the 18th day of June, 1892, and that within one year thereafter this suit was instituted.
For answer and amendments to answer the defendants say, in addition to special and individual answers, that the defendant, the City of Little Bock, had been in the open, notorious and peaceable adverse possession of the property in controversy for more than fifty years, up to the filing thereof; that all of the same form, include, and constitute part of the streets, alleys and public grounds of the city of Little Bock, deeded to said city and by bill of assurances dedicated to the public use on the 20th day of November, 1821, by William Bussell and others, the original owners and proprietors of said lands by right of purchase from the United States government. They say that plaintiffs’ right of action did not accrue within fifty years next before the filing of this suit, and that the same is barred by prescription, because neither plaintiffs nor their ancestors had ever before made any claim to the land in controversy. The answer then sets up the several acts of congress passed April 12, 1814, for the final adjustment of land titles in the state of Louisiana and territory of Missouri, and another act approved February 5, 1813, and another April 29, 1810, under which one Benjamin Murphy, under improvements on the land in controversy by one William Lewis, under whom he held, claimed the right of pre-emption on said lands, and a preference right to enter same from the government; that under an act approved March 17, 1820, entitled “An act to authorize the President of the United States to appoint a receiver and register and establish a district land office at Batesville, Arkansas,” said office was established, and afterwards, to-wit, in the month of September, 1820, the pre-emption claim was presentéd and allowed at said land office. Reference is made to transcript of the record of these proceedings marked “Exhibit B,” but the exhibits do not appear in the transcript before us. Then the answer contains a history of the transmission of title from Murphy to William Russell and others, constituting what are known and called “original proprietors.” The defendants further say that on 20th November, 1821, the said William Russell and others, owning the lands as aforesaid, made, executed and established a plat of survey, laying off the whole of said lands as aforesaid into town lots, blocks, squares, streets, alleys, etc., and called the same the “Town of Little Roek,” and also on the same day executed a sealed instrument, called therein a “Bill of Assurances,” in which the said owners, as aforesaid, makers thereof, were denominated “owners and proprietors” of the town of Little Rock, declaring therein the size of the blocks, squares, lots, streets and alleys in said town, which said bill of assurances was duly acknowledged and recorded in the recorder’s office of Pulaski county on February 6, 1822, and a copy of same is exhibited with the answer, and appears in the transcript. Defendants also present a copy of what is termed “the covenant” of Roswell Beebe, dated July 6, 1838.
In addition to the patent aforesaid, plaintiffs presented in evidence the bill of assurances of their ancestor, Roswell Beebe, to the city of Little Rock, dated and filed for record December 26, 1839, and mutual deeds on exchange of property between Beebe and Ashley and the mayor of the city of Little Bock, dated 23d day of February, 1843, in which the four blocks constituting Mt. Holly Cemetery were conveyed to the city in exchange for other property. Oral testimony was also taken, and made of record in the bill of exceptions.
In the trial of the cause, plaintiff asked the court to give nineteen several instructions to the jury and declarations of law, which were severally overruled, and plaintiffs excepted, and thereupon the court made the following declarations and instructions in the case:
(1). “The court finds that by the bill of assurances and plat filed by William Bussell and others, as original proprietors of the city of Little Bock, the city of Little Bock obtained a proper claim of title through said original proprietors to the land in controversy. (2). That, the city of Little Bock accepted the streets under the Bussell plat, as shown by said plat, in trust for the use of the public. (3). That no subsequent acts of the officers or municipal council of the city of Little Bock were such as to estop the city from setting up title to the land in controversy as public streets. (4). That, by the covenant of Boswell Beebe to and with the mayor and aldermen of the city of Little Bock, he was bound, upon reasonable demand, upon the emanation of the patent from the United States to him, to have immediately executed a quitclaim deed to said city to the streets as shown by the Bussell plat and bill of assurances. And accordingly, upon the undisputed facts of this case, the court finds the law to be for the defendants, and accordingly instructs the jury to return a verdict for the defendants in all three cases herein submitted to them.”
The plaintiffs excepted to each of these findings and instructions of the court, and filed their motion for new trial, which was overuled, and they appealed.
The instructions of the court to return á verdict for defendants in effect eliminated all the questions from our consideration, except those arising upon the facts as to ownership of the ground in controversy. This cause was decided once before by us, but a motion for a new hearing was filed, and, while this was pending, the term was about to expire, and we set aside our decision and judgment, to allow further time to consider the matter. We have examined most carefully all the matters suggested to us both on original argument and on motion for rehearing.
What are known as the “original proprietors,” claiming to be the owners of the land upon which the city of Little Rock is now in part located, and of the lands particularly of which the ground in controversy forms a part, by their bill of assurances, dated November 20, 1821, which was immediately put on record in Pulaski county, dedicated certain of said lands, including the ground herein sued for, to the future town and city to be called “City of Little Rock.” Accompanying this bill of assurances or dedication deed, and attached thereto as a part of the same, was their map of so much of said city as was conveyed by them therein, and additional land not claimed by them, and the streets, blocks and lots indicated on said map were specifically referred to in said bill of assurances.
The town of Little Rock, which was the territorial capital, was incorporated in 1825, and the city of Little Rock was incorporated in 1832. From its incorporation as a city, the city council took steps to improve the streets dedicated to the city by the “original proprietors,” and particularly looking to the improvements of Water street and North street, parts of which comprise the ground now in controversy. There was no statute in foi’ce providing for the manner of accepting dedications on the part of towns and cities, but acceptances were under the common-law rule. The evidence, in our opinion, is sufficient to show an acceptance on the part of the town and city of the dedication of these “original proprietors.”
It appears that the title of the “original propraetors” had never been perfected, and in the course of time Roswell Beebe, ancestor of the plaintiffs in this cause, made application to enter the congressional sub-division described in his patent, and finally succeeded in doing so, and obtained his patent. The same is exhibited with his complaint herein. But before doing so he made what is here termed his “covenant” with the city of Little Rock and others, a greater part of which it is necessary for us to set out.
The covenant, bearing date July 6, 1838, is an instrument under seal, duly acknowledged and recorded, and purports on its face to be an obligation on the part of Beebe that, as soon as he should receive his patent, if he ever should, from the United States government for the lands including the grounds in controversy as aforesaid he would make quitclaim deeds, on reasonable demand, to parties therein referred to, who should present a claim of title from all or any one of the original proprietors, referring to their plat and plan of the town aforesaid.
The circumstances under and the purpose for which this covenant was made are more fully detailed in decisions of state and federal courts in litigation growing out of the conflicting claims to these lands, made and asserted before the making of this “covenant,” for, in truth, no one up to this time seems to have had any perfected title, and all were mere claims of prior rights to enter. For a history of these contentions, the following cases are referred to, in all of which Roswell Beebe, ancestor of plaintiffs, was a pai’ty, towit: Cunningham v. Ashley, 14 Howard, 377; Russell v. Beebe, Hempstead, 704.
In attempted compliance with this said covenant with the city of Little Rock, Beebe, on the 26th day of December, 1839, made his bill of assurances to her. The description of Water street was different from that contained in the bill of assurances of Russell and others, called the “original proprietors,” which was thus: “Water street is and shall be forty (40) English feet wide, and no more, between block numbered one hundred and thirty five (135) and blocks or lots marked ‘E,’and numbered one hundred and forty five (145),” and “all the open ground represented on the plat of said town extending along the margin of the Arkansas river, from the eastern part of the block ‘A’ to the western part of block ‘E,’ as represented on said plat, is hereby made and declared to be part of and belonging to Water street, and the open ground represented on the margin of said map extending from west side of block ‘A’ to the east side of block 'B/ as represented on said plat, is hereby made and declared to be part of and belonging to North street.” These river margins of Water street and North street, made part of said streets, and dedicated by the “original proprietors,” as shown on their map, were left off said streets in Beebe’s map and dedication or bill of assurances, having the effect thus of reserving the same to him. The margins or river fronts of Water street and North street are the property sued for herein by the plaintiffs.
Two main questions are raised in the part of the case we are first called upon to consider. The plaintiffs contend, first, that the city of Little Rock, as the owner of the streets, is not a party obligee in the covenant; and, secondly, that by accepting Beebe’s dedication as a full performance of his “covenant” to her, if she is a party beneficiary therein, the city is estopped from claiming other property than is included in Beebe’s bill of assurances as represented on his map.
Appellant’s first contention is that the “covenant” of Roswell Beebe, dated 6th July, 1838, does not include the city of Little Rock, as the owner of her streets or in respect to her streets, as one of the beneficiaries therein. The “covenant,” or as much of it as is necessary to be copied herein, is as follows, to-wit:
“This instrument of writing, made the 6th day of July, 1838, by and between Ros well. Beebe, of the city of Little Rock, in the state of Arkansas, of the one part, and the mayor and aldermen of said city of Little Rock, in behalf of said city, as well as in behalf of the said state of Arkansas, and also in behalf of any person who may have in his own right a proper and regular chain of conveyances, or conveyance of any town lot or lots situated in the first original town (now city) of Little Rock, derived from, by, or under any one or more of the original owners and proprietors of the said town as aforesaid, and as represented upon the first original plans as then surveyed and laid off into town lots, of the other part, . [the plan originally referred to is the plat attached to the bill of assurances of the “original proprietors,”] witnesseth: That whereas, the said Roswell Beebe has caused to be located and entered, with pre-emption floating.claims, at the land office at Little Rock, and upon which as aforesaid (north of the Quapaw line) the city is now built, the following described tracts or parcels of lands, to-wit, the northeast fractional quarter of fractional section three (south of Arkansas river) and the west fractional parts of the northwest and the southeast fractional quarter of fractional section two (south of Arkansas river), and west of the Quapaw line, all in township one north of the base line, of range twelve west of the fifth principal meridian; and whereas, the original town of Little Rock as aforesaid (west of the Quapaw line), now comprising a part of said city as aforesaid, is embraced and included within the tracts of land which said Roswell Beebe has caused to be located and entered as aforesaid; and whereas, the said Roswell Beebe is willing and desirous, should patents hereafter be granted and issued to him and his heirs by the United States for the said several tracts of land by virtue of the locations and entries as aforesaid, and which now embraces a part of the said original town as aforesaid, now a part of the city, to convey by quitclaim deed or deeds only to said mayor and aldermen, in behalf of said city, and to said state, and to any person or persons, his, her or their heirs, all and every the right, title, interest, claim and demand which the said Roswell Beebe may acquire to the said tracts of land by reason of the location and issuance of the patents as aforesaid to any lot or lots in said city to which they, or either of them, or their heirs, or either of them, may claim by a proper regular chain of conveyance or conveyances. derived from, by, or under some one or more of the said original owners and proprietors of the said original town (west of the Quapaw line), now a part of said city as aforesaid. Now, therefore, know all men by these presents, the said Roswell Beebe, in consideration of the premises, and also in consideration of $1 to him in hand paid by the said mayor and aider-men of said city of Little Rock, at and before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, doth hereby for himself, heirs, executors, and administrators, promise, covenant and agree that on the first issuance of the patents, by virtue of the said locations and entries, which embrace said original town as aforesaid, he, the said Roswell Beebe, his heirs, executors, and administrators, will, at the reasonable demand of the said mayor and aider-men of said city, or of the state of Arkansas, or of any person or persons, his, her, or their heirs, who may claim any lot or lots in the said city as aforesaid by virtue of a proper regular chain of conveyance derived from, by, or under some one or more of the said original proprietors as aforesaid, execute or cause to be executed unto the said mayor and alderman, in behalf of said city, and to their successors in office, and unto the state of Arkansas, and unto any person or persons, or his, her, or their heirs, as aforesaid, a quitclaim deed or deeds of relinquishment, thereby assigning, transferring and settling over all and every the right, title, interest, claim and demand whatever which the said Roswell may, might, or shall have acquired to each and every lot or lots so assigned and set over by reason and means of the locations and entries and issuing of the patents as aforesaid, and also with the explicit understanding that, when the said deed is so made, there shall not be had any other or further recovery to or from the said Roswell whatsoever, and such a relinquishment of dower to the premises so assigned as may have been acquired only by the means aforesaid shall be void.” Then follows, under a proviso, provisions as to the demand to be made by the claimants within a reasonable time, the payment of the expense of the quitclaims, and other details, principally referring to the compliance with the covenant on the part of Beebe.
In Beebe’s bill of assurances, dated December 26, 1839, three months after the date of his patent, the following reference to said “covenant” is made: “And whereas, by a certain instrument of writing duly executed by the said Beebe at the city of Little- Rock, on the sixth day of July, A. D. 1838, it was among other things therein mentioned and contemplated by the said Beebe that he would, on the emanation of the said patents, relinquish to the mayor and aldermen of the said city, and their successors in office, in trust for the public use and benefit of said city and the citizens thereof, all right and title, as hereinafter set forth and described. Wherefore it is hereby declared, reference being had to the said plan, that Markham, Cherry, Mulberry, Walnut, Elizabeth, Chestnut, Holly, Hazel, East, Rock, Cumberland, Scott, Louisiana, Center, Spring, Arch, Gaines and State streets shall each, respectively, as represented upon the said map, be and forever remain sixty feet wide, and no more, throughout their whole extent. East Main, West Main, and Orange streets [afterwards changed to Main, Broadway and Fifth streets respectively] shall each, as represented upon said map, respectively, be and forever remain eighty feet wide, and no more, throughout their whole extent; and Water street shall be and forever remain forty feet wide, and no more, between the front or northern boundary line of block No. 35, and the southern boundary line of lot No. 145, and 182; and the direct continuation of said Water street westwardly shall be throughout its whole extent, and forever remain, 60 feet wide, and no more. Conway and Ashley streets shall be and forever remain as represented upon said map, throughout their whole extent, sixty feet wide, and no more, and all alleys represented upon said map, as running through the center or middle of each square, shall respectively be and forever remain twenty feet wide, and no more, throughout their whole extent. Therefore, be it known by these presents, that pursuant thereto, as well as in consideration of one dollar paid unto the said Roswell Beebe and Clarissa Elliott, his wife, the receipt whereof they do hereby acknowledge at and before the ensealing and delivery of these presents, by [to] the said mayor and aldermen of the said pity of Little Rock, the said Beebe and wife do hereby remise, release, quitclaim and set over unto the mayor and aldermen aforesaid, and unto their lawful successors in office, in trust for the sole and only uses and purposes as herein mentioned and expressed, subject, however, to such stipulations, conditions, restrictions, aud limitations as are here provided for, all and every of our, and each of our, right, title, interest, claim and demand which we or either of us may, might, or shall have acquired by virtue of the. issue of the patents as aforesaid in and to the several parcels of land embraced by and included within the limits of the said several streets and alleys, as well as all and every the rights, privileges, benefits and advantages of every kind appertaining and incidental thereto, and relating to the said streets and alleys, or any part thereof, which may be comprised in the limits of the said streets and alleys hereby relinquished for public purposes; to be held by them for the free use, benefit and advantage of the city of Little Rock, the citizens thereof, and the public generally, so long and no longer than the same shall remain free and unobstructed public highways, as hereby contemplated, and as the same shall not be used or appropriated for any other or further use or purpose whatsoever. The same to be subject, nevertheless, at all times to such needful ordinances, rules and regulations as may, from time to time, be deemed necessary and proper to be made by the said mayor and aider-men and their lawful successors in office for the gradation, use, public advantage, good government, well-being and police of the same. But the same [this bill of assurances] shall, when taken and recorded in the office of the recorder in and for the county and state aforesaid, be considered by all the parties, as expressed or implied herein, as acquitting and forever discharging the said Beebe from any other or further obligation to make any other relinquishment or writing of any other name or nature ‘ to the said mayor and aldermen, or to their successors in office, undir and by virtue of said covenant, as first aforesaid, or by any other means, in relation to any of the said streets, alleys, or privileges thereunto belonging, etc.” Filed with this bill of assurances there was a map of the platted ground, forming the main three or four blocks south of the river and two or three blocks along the west line of the Quapaw line. Another plat or map covering the same ground as the first partial map, and more of the city, was filed on the 29th February, 1840.
It is manifest from the very language of this bill of assurances or dedication deed that the maker of it held himself bound to make it by the terms of his “covenant,” and since this dedication consists entirely' in dedicating the streets and alleys of the city to the public use, and does not purport to give or grant to the state, the county or any private individual, leaving that part of his covenant to be complied with, as provided in the same.
The meaning of the “covenant,” as regards private per sons, is expressed in its first few lines, making use of the words “lot” and “lots,” while no such words are used to designate the ground, in connection with the mention of the city as one of the beneficiaries. The reason for that is obvious. In regard to private individuals and such other beneficiaries as could only hold “lots,” it was necessary to use this word of general description of a class of real property in order to emphasize the idea that this class of claimants would have to show a claim of title to such from the “original proprietors” elsewhere set forth in the “covenant,” whereas the streets had already, to-wit, seventeen years before, been dedicated to the city by a bill of assurances or dedication deed, then on record in . the recorder’s office of Pulaski county, and had been for years. In this dedication deed, Beebe, like a prudent man as he was, stipulated that his deed should be held as a quitclaim to him and release of all obligation on his part to further comply with the obligation imposed by his covenant. He sought to emphasize the idea that this dedication of the streets was a full compliance with his covenant obligations to the city in that behalf. Taking his bill of assurances in connection with the“covenant,” it is impossible, it seems to us, to draw any other reasonable conclusion than that he regarded his covenant as covering the case of the city in its ownership of the streets, as well as that of the state, county and. private persons in their ownership of lots — the only description by which they can or do ordinarily own city real estate; and we so hold.
If the “covenant” was binding upon Beebe at all as re? spects the city and its streets, it bound him to relinquish his fee in the land occupied by the streets as laid off and indicated in the dedication of the “original proprietors,” He undertook, by his said dedication, to perform his covenant obligations in this regard, but, instead of making a quitclaim of the title he had acquired by his patent to the' ground covered by the streets, he made a dedication deed or bill of assurances. This might have been accepted as a formal compliance with his covenant, had he simply duplicated the bill of assurances of the “original proprietors,” for the prime object of the “covenant” according to its very terms, was to confer upon the covenantees the legál title to the ground which each one of them, respectively, had lawfully acquired from the “original proprietors,” and in so far his bill of assurances is all that may have been required of him; but when he left off some of the ground which constituted one of the streets and part of another in the dedication deed and map of the “original proprietors,” and thereby reserved that much to himself, in ■ so far he failed to comply with his covenant obligation. We are inclined to think that he was of the opinion then that the city council, in accepting his dedication, assented to this reservation, and could lawfully bind the city by such assent, and that therefore the same was a valid reservation to himself. This is the theory of the plaintiff’s heirs, as contended for in this suit. In this there is no certain ground for impugning of motives, and this view of it leads us to assume the correctness of the proposition of plaintiff’s counsel in their argument on the motion for a new hearing, to-wit: “It is but fair to say for Mr. Beebe that neither this record nor any. other record shows that either he or his heirs ever sought to disclaim his covenant, or ever failed to comply strictly with its terms, except in so far as they were altered by consent of the parties interested.”
The only case in which this “covenant” has been interposed as a defense in a suit by Beebe or his heirs, based on his patent, is the case of Skipwith v. Martin, 50 Ark. 141, in which Martin represented the heirs of Beebe, and Skipwith was the grantee of Pulaski county, one of the beneficiaries in the “covenant.” The suit was by Martin and against Skipwith. Judgment in the circuit court for Martin, and Skipwith appealed to this court. Skipwith fqr defense relied on the superior equities of his vendor — the county — growing out of the covenant obligation of Beebe to it, and adverse possession, and his defense was sustained on both grounds. As to his equities, the court said: “Coming down to the year 1839, our next inquiry is, whether Beebe, when he obtained his patent, was bound to make a deed to Pulaski county for the lots in controversy. This must be determined exclusively by his covenant. Since we have determined that the county had a good conveyance from the original proprietors [their said bill of assurances], the county seems to have been within the letter oí Beebe’s covenant, If he had refused to make a deed on demand, he would have been compelled to execute it on a bill for specific performance. If he would have been compelled to make it then, it is difficult to see why his heirs should not be required to make it now. It would hardly be claimed that the right had been lost by the lapse of time. We have never understood that a vendee in possession, who was entitled to a deed, could ever lose his right thereto by efflux of time. If Beebe was bound to make a deed, what kind of a deed was he to make? In view of the emphasis and reiteration in his covenant on this point, it would be unpardonable to raise a dispute as to the character of this deed. It was to be a quitclaim deed. There can be as little controversy as to the effect of' such a deed. Since he himself had obtained from the government, by his patent, a perfect title, as all concede, his quitclaim deed then, and that of his heirs and privies now, would pass an indefeasible title.”
Our conclusion from what has been shown is that the covenant binds the covenantor to quitclaim his after-acquired legal title to the covenantees respectively, and that the city of Little Rock is one of the beneficiaries in the covenant.
It may be of interest to call attention to the history of these land entries, as detailed by the Supreme Court of the United States, notably in the case of Cunningham v. Beebe, 14 How. 377, in which the ancestor — the said Roswell Beebe — of ihe plaintiffs was a party; Ashley having become interested with him after the entries were made. The “original proprietors,” that is, William Russell and others, in their bill of assurances to the city of Little Rock, made November 20, 1821, and heretofore referred to, claimed to be the owners of the fractional northwest quarter of section 3, and fractional section 2, (that is, all those portions of the same south of the river, including the ground involved herein), and their accompanying map of the future city covered these tracts, and, as stated in their bill of assurances, covered also additional lands to which they laid no claim. Among these additional tracts was the southeast quarter of section 3, which comprises the very heart of the city. The patent exhibited with plaintiff’s complaint calls for said fractional south part of northwest quarter of section 3 and the fractional northwest quarter of section 2, all south of the river, and bordering on it, and also including the parcels of ground in controversy in this suit.
On the same day, and with the same kind of “floats” issued under the act of congress of 1830 and supplemental act of 1834, Beebe entered, or caused to be entered, the tracts containing the lands in controversy and the said southeast quarter of section 3, and received his patent for each bearing date of that day.
One Matthew Cunningham, claiming pre-emption rights to enter this quarter section by reason of occupation and cultivation prior to Beebe’s entry, filed his bill in the Pulaski chancery court, attacking the validity of Beebe’s patent and entry in this: that it was made on land subject at the time to plaintiff’s pre-emption rights by reason of his prior occupation and improvement. The supreme court of the United States reversed the decree of this court, which was an affirmance of the decree of said chancery court on appeal, and held the entry and patent of Beebe of said quarter section void as against Cunningham, in so far as it affected the 80 acres occupied and improved by him. It was sought to be shown by the defendants in that suit that the land officers of the interior department had suffered the entry to be made, and advised the issuance of the patent, because the law and the rules and instructions of the department had been sufficiently complied with by Beebe’s covenant to quitclaim to pre-emption claimants his legal title on the emanation of his patent; but the court held that the occupiers on this quarter section were not included'within the terms of the covenan I, and decree was for Cunningham as stated. In determining the matter it became necessary for the court to state the circumstances under and purpose for which the “covenant,” as applied to the land now in question, came to be made by Beebe. And from this we gather that, upon this covenant being made and recorded, the land department officers deemed that the occupiers of these lands were sufficiently protected in their pre-emption rights by this obligation to confer upon the applicants the benefit of the entry and patent. Otherwise, it is manifest that there would not have been even an excuse to permit the entry, because otherwise the location of these floats on lands occupied and improved by others was prohibited by law. The covenantees — those claiming and showing title under the “original proprietors” — were necessarily those who had settled upon the city lots, as the same had been laid off and established by these “original proprietors” in their dedication deed and plat of November 20, 1821, and these wei-e named in the “covenant,” while those having claims upon the southeast quarter were not named nor referred to in the “covenant,” and of course were not protected thereby. The language of the United States Supreme Court on the subject is as follows, to-wit:
“On the 6th of July, 1838, an instrument, under seal [the covenant], was entered into between Roswell Beebe, to whom the patents were issued [both the patents referred to], of the one part, and the mayor and aldermen of the city of Little Rock, in behalf of said city, as well as in behalf of the state of Arkansas, and also in behalf of any person or persons who may have in his own right a proper and regular chain of conveyance or conveyances of any town lot or lots situated in the first original town, now city, of Little Rock, derived from, by, or under, any one or more of the original owners and proprietors of the town, as represented upon the first original plan as then surveyed and laid off into town lots, of the other part, witnesseth, that whereas the said Roswell Beebe has caused to be located and entered with pre-emption floating claims, at the laud office at Little Rock, and upon which the city, south of the Arkansas river, and west' of the Quapaw line, is now built, the following described tracts or parcels of land, to-wit: the northeast fractional quarter of fractional section three, and the west fractional part of the northwest and southwest fractional quarters of fractional section two, all in township one, north of the base line of range twelve west, etc. And in all cases where purchases of lots had been made in the above tracts, Beebe bound himself to release to the purchaser.
“This arrangement [tbe covenant] induced tbe land officers to permit the entries to be made, as well on the southeast quarter in controversy, as on the tracts above described. And it was considered at the General Land Office as a sufficient compliance with the circular of that office, dated the 11th of October,' 1837. The patents on this view were issued to Beebe; and on the 11th of January 1842, Beebe conveyed one half of the southeast quarter in controversy to Ashley.
“However satisfactory the agreement of Beebe may have been to claimants of lots on the tracts specified in his agreement [covenant], as it did not embrace the land claimed by the complainant [Cunningham], it was not designed for his benefit. And it is unaccountable that the land officers at Little Rock, and at Washington, should have considered the arrangement as a compliance with the regulations which prohibited the entry of floats upon improved or occupied land.”
With this reference, the decision in that case will be understood in its application to the present case, keeping in mind, however, that a reading of the entire opinion gives the best idea of it.
The case of Russell v. Ashley, Hempstead, page 546, is another case wherein the entry and patent of Ashley (those which are involved in this suit) were attacked as invalid, on account of the manner of making the one and procuring the other. That case but adds to tbe history of these land transactions. Suffice it to say that the entry and patent were held void.
Some three or four years after making his bill of assurances, after some negotiations, the exact nature of which we have no means of ascertaining, Beebe & Ashley (the latter having purchased an interest in .the meantime) on the one part, and the mayor of the city on the other part, made mutual deeds in exchange of certain real estate. In this transaction Beebe and Ashley conveyed to the city the four blocks constituting the present Mt. Holly Cemetery; another lot for a powder-house lot, near the present city park, and the two short streets just east and west of the State House, named Conway and Ashley streets, and took in exchange by conveyance of the mayor two blocks, one now occupied by Peabody High School, and another in the same neighborhood occupied now by private residence, and the end of Center street, which at that time extended through the State House block. As a response to a further condition of the deed to the city, the mayor’s deed attempted to engage the city to ratify the former acceptance of the city council of Beebe’s dedication deed, or something to that effect. And this, it is contended, is a part of the consideration inuring to Beebe and Ashley in this exchange of property. We have no way of ascertaining just what were the stipulations of this trade which the city council had under consideration when it accepted the proposition (if it ever did so.) All we have on that subject is that, on the presentation of the report of the committee having that matter in charge, on motion the same was laid on the table; and further that Mr. Beebe, in his own testimony in another ease brought forward in this, stated that, so far as concerns the giving of the short streets east and west of the state house, he made them a gift to get control of the extension of Center street through the state house block, so that he might convey the same to the state, so that it could have a whole solid block for the purpose of a state house; and that, as for North street, it was not his intention to deprive the city of that street, but, because of its rugged character, it deemed it impracticable to make a street there, and he therefore included it in adjoining lots or blocks, or words to that effect. But the mayor of the city, nor the city council, nor both acting together, can give away or exchange the streets of the city, and in all attempts to do so, with or without a consideration, not authorized by law, they act ultra vires, even although the city has enjoyed the benefit and retains the consideration therefor, where the same cannot in the nature of things be restored. Newport v. Railway Company, 58 Ark. 270 and authorities therein cited.
Besides, if the acceptance of Beebe’s dedication, with the grounds in controversy excepted, amounted to a valid reservation of Beebe and the city council to himself, then it is strange that this same acceptance and cession by the city should after-wards be so far held for naught as that it should require a con firmation, and that act of confirmation, the act of the mayor, should be claimed as a part of the consideration in the mutual deeds inuring to Beebe and his grantee, Ashley. But this by way of suggestion only, since a consideration cannot make an ultra vires contract good and binding upon a municipal corporation. As to power of municipal council to alienate property dedicated to the public use, see 2 Dillon on Municipal Corporations, § 650, et seq., and numerous cases cited by appellee’s counsel.
The second question raised (and we think that is the real question in this connection) is, did the city authorities (if in fact they did so) have the right or power to deprive the city of North street and the river marginal part of Water street, as dedicated to the city for public use, by accepting Beebe’s bill of assurances and accompanying plat, which left out this street and part of street, thereby reserving the same to him? Taking up plaintiff’s other contentions in the order of their numbering in their brief, they say first: “By accepting the dedication from Beebe in 1839, as evidenced by his plat and bill of assurances, the city did not release any part of any street to Beebe, because the ground retained by Mm ivas not part of any street.’’ . As-Beebe’s bill of assurances was professedly in furtherance of his “covenant,” by which he obligated himself to quitclaim his legal title, when acquired, to the city and others, referred to therein, claiming under the original proprietors, the duty of Beebe was to quitclaim strictly according to the terms of his covenant and the descriptions given in the bill of assurances and plat attached of the original proprietors. As equity considers as done that which ought to have been done, the original proprietors, in so far as the right of these covenantees are concerned, were the real owners of the ground which ought to have been included in such quitclaim deed. For instance, the ground here involved, North street, and the river margin of Water street, were in equity the property of the city for the use of the public, and not merely for its inhabitants or itself. Therefore, if the city officers had power to do such a thing, by accepting Beebe’s dedication deed with all its conditions, they- gave him North street and the river margin of Water street, and that, too, without consideration, if that makes any difference. Whatever absolute or qualified right a city has to dispose of other classes of real estate held by it, it is now too well settled to require extended argument that a city has no power to sell or give away its streets, or any part thereof, without consent of abutting owners and legislative authority, and perhaps the consent of others directly interested.
We do not assent to that proposition, either as to its statement or conclusion. The bill of assurances and plat — that is, the dedication — of the original proprietors, being for thé benefit of the city, was, under the common-law rule, presumptively accepted by the city authorities. But we do not need to base an opinion upon this presumption, since from the time Little Rock became a city until Beebe’s entry the record shows that the city council had taken sundry steps looking toward the opening and use of the streets of which the pieces of ground in controversy form parts — enough, certainly, to show the real in - tention of the municipal authorities in relation thereto, and that intention amounts to a sufficient acceptance under the circumstances, and all parties seemed so to have viewed the matter in this light at the time. For several years from 1821, when the original proprietors made their dedication to the prospective city, Little Rock was a village or unincorporated town, and, of course, no official records were kept showing an intention to accept the dedication. It was incorporated as a town in 1825, and remained such until 1832, when it became a city. It could not be expected that the town council proceedings would be kept to any great extent in those primitive days. After it became a city, before Beebe’s entry, the various acts of the city council plainly show an acceptance under the laws then existing.
Plaintiffs contended that Russell and others’ dedication in 1821 was a nullity, as they had no title to the land, and cited Moore v. Little Rock, 42 Ark. 66, 68, and Elliott, Roads & Streets, p. 105, in support of that position. That, as we have, in effect, said, is not a question for the plaintiffs to raise. By their ancestor’s and grantor’s covenant, they have recognized the title of Russell et al. (the original proprietors) to the ex tent of endeavoring to confirm it, so far as it concerns the defendants. It is readily conceded that one without title cannot confer title upon a city by a deed of dedication, any more than he can by a deed of sale, but in the one case as in the other he confers all the title he has, and all that may thereafter accrue to him. For this reason the authorities cited are not applicable, and for the further reason that Russell et al. do not stand in the attitude of persons without title.
Again, it is contended by plain tiffs that “when it is sought to establish the devestiture of the citizen’s landed property in favor of the public, the evidence of dedication ought to be so cogent, persuasive, and full as to leave no doubt of the existence of the owner’s intent and consent.” Is there any doubt that Russell et al. made the dedication, and is there any that Beebe attempted to release to the city the property dedicated to it by them in pursuance of his covenant? But it is contended that, under the covenant, the city should have demanded a deed of release from Beebe, as therein provided. Otherwise, it waived its rights to the protection therein provided for claimants. The city was not in the situation of a private donee or purchaser; it required no deed additional. Its deed of dedication was already on z’ecord, and all parties interested dealt in reference thereto; and Beebe is presumed to have done and intended to do what his covenant required him to do, the city having really nothing to do on her part to claim the fulfillment of the obligations of the covenant on Beebe’s part. Besides, the question in the last clause is settled by Skipwith v. Martin, supra.
The second proposition is “that, until the dedication was accepted, Beebe had the right to withdraw his dedication, or any part of it, and his bill of assurances made in 1839 was a withdrawal of the dedication of the property in suit." In answer to this proposition, we have only to say that, while assenting to the abstract proposition that before acceptance the dedicator ordinarily has the right to withdraw his dedication, yet such is not the case here. We do not treat Beebe as the dedicator, and his bill of assurances purporting to make him- such, as we regard it, is valid in so far as it tends to evidence a compliance with his covenant to release, to those holding under the “original proprietors.” These last were the real dedicators. The case of Holly Grove v. Smith, 63 Ark. 5, is not a case in point, for the principle therein established is: “There must be an intent to appropriate the land to public use, and if the intent of the owner is absent there is no dedication. Thus, the dedication of streets and alleys across a tract of land in a town is not established merely by proof of the making and recording of a map showing the streets and alleys, where the land remained enclosed and cultivated by the owners.” In such case there is neither an acceptance, actual or constructive, nor a delivery of possession, actual or constructive. The dedication of the original proprietors in this case was something more.
The third proposition is that, “even after formal acceptance of a dedication, the municipality may revolee it as far as unopened streets are concerned, if the owner assents.” This presupposes a proposition on the part of the municipality for a revocation of the dedication, and the contention is that this can be done if the owner assents. Of course, this does not referió Russell et al. as the owners, but to Beebe, and the meaning is that Beebe, as the dedicator, consenting to a revocation will make it valid. Beebe’s title to the tract of land was on condition that he released so much of the tract to other claimants as might be shown to be the subject of the agreement. Certainly, his consent can have no effect in releasing him from the conditions under which he holds. Finally, there is no showing that the city has ever assented to a revocation of the dedication, even granting that it could do so after acceptance, for the argument under this heading is on the ground that both parties have assented to the revocation.
The fourth proposition is that, “if lot owners were parties to-the suit, none but abutters on the property in suit could be heard to complain.” Beebe is not sought to be bound by an implied “covenant.” He is not the grantor, except in the term of being a mere releasor. And to release he is bound by an express “covenant,” executed by him for a valuable consideration, and under which vested rights have accrued, and parties protected by it have been caused to rest in security.
The fifth proposition is: “The contract for the acceptance of Beebe’s dedication has been fully executed by Beebe and the city, and the city still retains the consideration received by it under the contract. If its acts of acceptance were in fact ultra vires, it could not be heard to assert it.” As an introduction to this proposition, plaintiff’s counsel say: “We ought to have shortened the brief by resting'upon it [the proposition] alone.” It may be considered as well settled that municipal authorities cannot sell the streets of the town or city dedicated to the public use, and the reason is, in such case the city or town is a mere trustee for the public, and a trustee cannot dispose of the property of the cestui que trust, except by special authority. In Town of Searcy v. Yarnell, 47 Ark. 269, this court said: “A municipal corporation has power to dispose of property held for general convenience, pleasure or profit.” The property there involved was the town’s interest in a railroad lying mostly without the corporate limits of the town, and constructed for the purpose of connecting the town with the Iron Mountain railroad, three or four miles away, and that for the general convenience, pleasure and profit of the inhabitants of the town. It was in no wise a necessity in or factor of the municipal government. Streets, however, are prime factors in municipal government, and no town could possibly exist without streets. In the ownership of its streets a town or city exercises the functions of a public corporation purely and solely, while in its ownership of property acquired by it for pleasure or profit it exercises the functions of a private corporation to a great extent, subject, of course, to express conditions upon which any piece of property may have been given or granted to it. Authorities involving the powers of private corporations are not applicable where streets are involved. If the city authorities cannot sell its streets, it follows logically that they cannot exchange them for other property, for there is no difference, on a question of ultra vires, between a money consideration and a specific property consideration, Besides, as is contended by defendant’s counsel, there is no evidence that the deed from the mayor of Little Bock to Beebe and Ashley, dated 28th February, 1843, was ever au thorized to be executed by the council, even if any authority to do so could have been conferred by an ordinance or otherwise.
But it is contended by plaintiffs’ counsel that, if the city is allowed to disclaim the deed of its mayor, then a rescission of the mutual exchange evidenced by the deed should result, for they say the city should not be permitted to hold Conway and Ashley streets, therein for the first time dedicated to it, and retain also the controverted parts of Water and North streets, wife correctly understand them. Or, perhaps, they mean that, since the mutual deed of February 28, 1843, was given on the basis of Beebe’s dedication, if the mutual deed cannot stand, a rescission should result as to all the property included in the former. This is nota bill to rescind, but a suit in ejectment, and it is impossible for us to determine the consideration for which any piece of property was granted on the one hand or released on the other; but, if such a question were before us, the evidence tends strongly to show that the prime consideration for which Beebe donated Conway and Ashley streets to the city was that he should be clothed with the disposition of Center street through the state house block, as it extended then, and thus be enabled to donate the solid block to the state for the purpose of- erecting the capitol thereon, and that this was accomplished as he desired.
But it is contended that if the lease of the property for private use is void, as held in Marine Ins. Co. v. Railway, 41 Fed. Rep. 643, the plaintiffs as owners of the fee could maintain ejectment. This is a suit by persons claiming under the original owners of the property. The defense is that the ancestor of plaintiffs never in fact was the owner of this property, except for the specific purpose of transmission of title from the government; that Beebe’s patent covering the land in controversy ivas only issued to him on condition that he should release to the city this very property, and thereby perfect its title, and the history of the case clearly sustains the defense, in our opinion. The plaintiffs, therefore, in the first place, are not the unconditional owners of the fee; and, in the next place, if- their claim is in the nature of a reversion or forfeiture, it is not shown that plaintiffs are abutting owners, and abutters alone are entitled where streets have been abandoned. The discussion under this head naturally gives rise to the discussion of the case of a city’s lease of property for private use, as in the case at bar. In Marine Ins. Co. v. Railway Co., supra, Judge Caldwell held, in effect, that a lease by the city authorities of a portion of a street was null and void, and that one permitting a nuisance on the ground so leased could not defend on the plea of his lease against a suit for damages to one of the general public growing out of the nuisance. When set up as a defense in such a case, such a lease may well be held to be null and void; that is to say, it is null and void as to the general public, but' notto every special and adverse claimant. It is the duty of a city to open and keep in repair its streets, and it may be compelled to do so by a proper proceeding at the instance of a proper party; and a city cannot divert the grounds given for streets to other uses, but, if it does, its unlawful or negligent acts cannot divest the cestui que trust — the public — of title in the streets. To rent or lease a piece of property is but to assert an ownership and control of it, and is never considered as an abandonment. An improper use of property is not a forfeiture or abandonment of it. The only illustration of this principle which readily occurs to our minds is the case of a widow holding a homestead. If she sells outright, she abandons. If, however, she rents or leases for a time, and not for her life, she not only is held as not intending to abandon, but this is regarded as evidence of the opposite, intention.
As the city has her own time, unless otherwise compelled, to open her streets, it would be impossible, in a proceeding like this, to determine anything as to its duties in the premises; but, as it cannot do by indirection what it cannot do by direct act, it cannot accomplish by its negligence that which it cannot accomplish by its affirmative wrongful act.
What has been already said virtually disposes of the question of the city’s abandonment, as it does of the city’s alleged laches in respect to the opening and improvement of the streets. The cases in which private corporations are said to have abandoned rights of way and other grants for public use, or public use in part, do not furnish precedents for the case of a municipal or public corporation. Since 1885, at least, the city authorities have been authorized by law to rent or lease portions of its streets for which it has no present "use, or where it is impracticable or impossible to use them as as parts of streets. Second sub-division, section 5313 Sand. & H. Dig. “Where a city has accepted the dedication of a public street, subsequent continued possession by the dedicator will not be presumed adverse to the city nor to the city’s right lost by delay for more than seven years in opening up the streets for public use, in the absence of proof of adverse possession.” Little Rock v. Wright, 58 Ark. 142. In the same case it is held by this court that “it is within the province of the city council of Little Rock to determine when the streets in question should be opened”; citing Mansfield’s Digest, § 737. In this case there is no proof of adverse possession on the part of the plaintiff.
There is an effort to show the assertion of an adverse claim by testimony as to the assessment and payment of taxes for á time. If defendant’s contention be sound that the parcels of land in controversy were parts of streets, they were not subject to taxation, and the putting them on the tax books and paying the taxes as assessed by another than the city were perhaps of themselves nullities, and were evidence of neither possession nor, perhaps, even a notice of a claim of possession; nor was the act of the city in permitting another to pay such taxes, even with notice, an abandonment or waiver of rights, for, aside from what might be asserted as a general principle, the manner of the alleged assessment is not shown to be as explicit as common fairness demands, in order to bind parties wdio may have been misled as to what was intended by the assessment. If the alleged assessment and payment of taxes by plhintiffs is introduced to show a change of title, all that maybe said is that without default, forfeiture, sale and notice of forfeiture as provided by law nothing can confer title upon the tax-payer. Bagley v. Castile, 42 Ark. 77.
The piece of ground between North street and the river dedicated to the city- by the original proprietors, but withheld in a manner in Beebe’s dedication, presents a little different phase of;the ease, although the question as to it in a general way may be considered as settled by what has been said in regard to Water street. What is designated on the plat of the original proprietors.as half block 344, describing part of a block south of North street, was thrown in with that part of North street, and the river front north of it, and all described by Beebe in his dedication map as block No. 185, thus obliterating North street, taking from the city the river front north of it, and giving the whole to Beebe. The proof adduced plainly shows what was originally understood by all parties as block No. 344, and that North street had a well understood place, for. long before Beebe had anything to do with these lands Ashley had purchased that half block from Russell, one of the original proprietors, claiming to own it individually. It appears to have been subsequently reconveyed to Russell by Ashley under the same description. Indeed, Beebe, as a witness in another case, explains that he did npt obliterate North street for the purpose of securing the ground to himself, as charged against him, but because of the impracticability of making the rugged ground into a street. Without going into a discussion of this matter, our opinion is that, the river front at this point, having been .made a part of North street, and as such dedicated by the original proprietors to the city as a street, the city, could not be divested of it by any act of Beebe for the -reasons heretofore given, as .applicable to both streets.
.There is this difference, perhaps, between North street and Water street, or the parts thereof involved in this litigation: In the case of the former the rents and leases of the city extended further back than in the case of the latter; and in the case of the latter the proof tends to show that at some points, if not substantially at all points, the highwater mark of the river extends to the street, treating it as only 60 feet wide, as designated on Beebe’s plat, thus leaving no slope or river front.
.This disposes of all the questions raised which we deem ' it necessary to dispose of.
Upon the- whole case, we are of the opinion that the cov nant of Beebe covered the case of the city in its ownership of the streets included and laid off in the bill of assurances and plat therewith filed by the “original proprietors;” that there was an acceptance of that dedication by the city; that the city could not be deprived of the ownership and possession by its mayor or others pretending to act for it; that Beebe and his heirs and assigns were and are bound by the terms of his covenant, one obligation of which is that he should quitclaim the ground occupied by the streets laid off and dedicated by the “originalproprietors,” and that the parcels of ground in controversy are parts of Water and North streets respectively, and that the same are still streets of the city of Little Rock as originally laid off; and that in so adjudging, in effect, there was no error in the judgment of the circuit court.
Affirmed.
Battle, J., dissents.
Riddick, J., dissenting as to North street. | [
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Humphreys, J.
This is an appeal from a verdict and judgment in favor of appellees in the circuit court of Sebastian County, Fort Smith District, in a replevin suit for an automobile upon which appellee had levied an execution issued on a judgment obtained by Barton-Kellogg Lumber Company against Yiola Earls. The Barton-Kellogg Lumber Company intervened and became a party to the suit. This was the second execution issued on the Barton-Kellogg Lumber Company judgment against Yiola Earls and levied on the automobile in controversy. When the first execution was levied on said automobile, appellant intervened and claimed title thereto, and, on the trial of the intervention on October 9,1929, it was found and adjudged that she was the owner and entitled to the possession of the automobile. At that time, appellant herein was a single woman, residing with her mother, Yiola Earls. Subsequently she married a man by the name of White. About two years elapsed between the first and second executions.
In order to sustain her title and right to possession of the automobile, appellant introduced the judgment of date October 9, 1929, finding her to be the owner and entitled to the possession of the automobile in the same character of proceeding between herself and appellees herein. She relied upon the judgment, and, in order to overcome the effect thereof, appellees attempted to show that she had parted with her title after the rendition thereof either to her mother or Will Eigney.
Over the objection and exception of appellant, they introduced testimony to the effect that appellant married after the rendition of the judgment and remained most of the time for two years in Oklahoma without taking the automobile with her and that during the time, it was housed in her mother’s garage and used by her mother and Eigney.
Over the objection and exception of appellant, they introduced a bill of sale or invoice of tires purchased by her mother on credit from Armstrong Tire & Service Company, for which Barton-Kellogg Lumber Company paid after the levy of the second execution. It does not appear from the record whether the tires on the automobile when seized were the ones purchased from the Armstrong Tire & Service Company by Yiola Earls.
Over the objection and exception of appellant, ap-pellees introduce a judgment in a replevin suit brought by Will Eigney against them for the automobile in which he testified that he purchased same from appellant for $500 after October 9, 1929. Appellant was not a party to that suit, and, so far as the record discloses, had nothing to do with it. Will Rigney testified on cross-examination in the instant case that he had purchased the automobile from appellant after the rendition of the judgment of date October 9, 1929.
Over the objection and exception of appellant, ap-pellees introduced testimony to the effect that Will Rig-ney mortgaged the automobile to E. 0. Trent and J. H. Barch to indemnify them against loss for signing his replevin bond when he brought suit to recover the automobile from appellees.
Appellant contends for a reversal of the judgment upon two grounds: First, that there was no competent, evidence tending to show that she had parted with her title to the automobile after she was adjudged to be the owner thereof in the trial of the first suit on October 9, 1929, between the same parties; and, second, that the court admitted incompetent evidence to which she objected and excepted.
(1) The extended absence of appellant from the State and the use of the car by her mother and the testimony of Will Rigney to the effect that he had purchased the automobile for $500 from appellant, together with his use of it for a part of the time, was competent testimony tending to show that appellant had parted with the title thereto at the time the second execution was issued and levied upon the automobile. In view of the rule that this court will not disturb verdicts of juries if sustained by any substantial evidence, we would affirm this judgment if incompetent testimony had not been admitted which was prejudicial to appellant.
(2) The fact that Will Rigney brought a replevin suit for the automobile, and what he testified to in that case, and the further fact that he gave a mortgage on the automobile to E. 0. Trent and J. H. Barch to get them to sign his replevin bond, were inadmissible and prejudicial. Appellant was not a party to the suit and, so far as the record shows, did not encourage it and did not acquiesce in the proceedings or know what tes timony was introduced therein, nor is it disclosed that she had any knowledge of or suggested or participated in the execution of the mortgage.
The introduction of the bill of sale for tires purchased by Viola Earls from the Armstrong Tire & Service Company was also inadmissible and prejudicial, for there was no showing made that they were purchased for and used on the car in controversy.
On account of the errors indicated, the judgment is reversed, and the cause is remanded for a new trial. | [
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Smith, J.
Little Jied Biver Levee District No. 1 of White County (hereinafter referred to as the district) was organized on April 7,1913, by the order of the county court of White County, under the general law providing for the creation of levee improvement districts. Sections 6811 et seg., Crawford & Moses’ Digest. To expedite the construction,work, bonds were issued and sold pursuant to the authority conferred by law, and a resolution was passed by the board of directors distributing the payment of betterments over a period of twenty-five years from 1913 to 1938, inclusive.
Tbe appellant bank brought this suit, and for its cause of action alleged that it was tbe owner of six of these bonds, each in tbe sum of $500 ; that two of tbe bonds bad matured January 1, 1929, two on January 1, 1930, and tbe other two on January 1, 1931, and that neither these bonds nor the interest thereon had been paid. It was alleged that the district, to secure the payment of these and other bonds, had executed a pledge in writing of all revenues derived from taxes levied upon the real estate within the district, which pledge had been delivered to the Mercantile Trust Company, of St. Louis, Missouri, as trustee, and that it was the duty of the trustee under the pledge to take appropriate action to see that the betterment assessments were collected and the bonds paid from the proceeds of the collections, but that the said trustee had declined to act unless the plaintiff indemnified it against costs, expenses and attorney’s fees in a sum designated by the trustee, which offer plaintiff declined and brought suit in its own name.
The right of the plaintiff to sue is questioned; but we think it had that right. The trustee was made a party defendant, and the plaintiff, as a creditor, had the right to demand the payment of its debt in the manner provided by law. As an incident to the enforcement of its demand for the payment of its debt, it had the right to require the officers of the district to apply the taxes of the district to the uses and purposes for which they had been collected. The complaint alleged there had been waste and mismanagement in the affairs of the district; that the taxes had not been collected with diligence, and that excessive and unauthorized fees had been paid to the officers of the district. It was prayed that a receiver be appointed to take over the affairs of the district; that its officers be required to account for its assets, and that an acceleration of the collection of betterments be ordered to the end that the maturing bonds and the interest thereon might be paid.
The act under which the district was created and the bonds issued contained no provision for the appointment of a receiver for the district upon its default in meeting its obligations, and the court properly refused to appoint a receiver for the district. The court can and will make such orders to the directors of the district as are necessary to require them to perform their duties under the law. Paving Dist. No. 5 v. Fernandez, 142 Ark. 21, 217 S. W. 795; Martin v. Hargrove, 149 Ark. 383, 232 S. W. 596; South Miller County Highway Dist. v. Dorsey, 174 Ark. 553, 297 S. W. 833; Sloan’s Improvement Districts in Arkansas, § 477; Guardian Savings & Trust Co. v. Road Imp. Dist. No. 7, Poinsett County, 267 U. S 1, 45 S. Ct. 201.
It is definitely settled that an improvement district may be required to accelerate the collection of the better-ments assessed in the district, and that this may be done by increasing the per cent, of the betterments to be collected in a particular year, provided the total assessments ordered to be collected shall never exceed the total amount of betterments assessed in the district, and the total assessments against any particular property shall never exceed'the betterments assessed against that piece of property. There is, at all times and under all circumstances, a constitutional inhibition against collecting upon any property any sum in excess of the betterments assessed against it. Griffin v. Little Red River Levee Dist., 157 Ark. 590, 249 S. W. 16; Chicago Mill & Lbr. Co. v. Drainage Dist. No. 17, 172 Ark. 1059, 291 S. W. 810; Arhansas-Louisiana Highway Imp. Dist. v. Pickens, 169 Ark. 603, 276 S. W. 355.
The court declined to order an acceleration of the collection of the betterment assessments, and it is earnestly insisted that this was error. But it does not appear to be so. The complaint alleged that the per cent, of the betterments ordered to be collected each year, made at the time of the bond issue, would suffice to pay the maturing bonds and the interest thereon if the collections were made and were not diverted to meet certain over head and operating expenses. The testimony shows that for some years the district had been operated as a one-man affair; this person being the secretary and treasurer of the district. Elections of directors were not held „ as required by law to fill vacancies in the office of directors as the terms of such officers expired. The secretary and treasurer of the district, who was also the collector of taxes for the district, made no report of his collections, and had given no bond as required by law.
A loss of the district’s funds had been sustained through the closing of the bank in which they had been deposited, and the plaintiff sought to charge the amount thereof against the treasurer.
The secretary and treasurer was ordered to file a report of all moneys collected and disbursed during his incumbency, extending from May 15, 1916, to December 14, 1932. This report has not been filed and acted upon.
The records of the district show that at a meeting of its directors in 1921 it was ordered that the secretary and treasurer be allowed a salary of $40 per month “from June 15, 1916, until otherwise ordered,” and that officer appears to have paid his salary from time to time as follows: Instead of drawing a warrant upon himself as treasurer, as he should have done, he marked the taxes paid on so much of his land lying in the district as equaled the amount of his salary.
•Section 6845, Crawford & Moses ’ Digest, of the General Levee District Act, supra, provides that the board of directors shall, at their annual meeting on the first Monday in May, or as soon thereafter as practicable, elect a treasurer for the district, whose term of office shall continue until the first Monday in the following May, or until his successor is elected and qualified, and that such treasurer, upon giving bond, shall receive such compensation as from time to time may be fixed by the board of directors. This statute contemplates that the compensation of the treasurer shall be paid from time to time during each year of his election, and it should have been paid by warrants drawn upon the treasurer. It was a gross irregularity for it to have been otherwise paid. But the secretary was also the treasurer, and, instead of drawing his salary warrant upon himself as treasurer, he marked his taxes paid to the extent of his salary. Having marked these taxes paid, he stands charged with the amount thereof, and thus he paid his salary, instead of drawing it in the manner contemplated by law, and with that money paying his taxes, as he had the right to do.
The procedure is subject to the severest criticism, but the directors of the district appear to have acquiesced in that action, and it does not appear equitable to require the officer to sustain this loss, as no profit resulted to him from the irregularity, nor did the district sustain any loss. A different method of bookkeeping should have been employed, but, had this been done, the same result would have been reached.
The court ordered the directors holding over as such to call an election for the purpose of electing three directors, to serve for one, two and three years, respectively, and that these directors elect a secretary and treasurer and require a statutory bond to be executed by him.
Under the facts stated, an acceleration of the collection of betterments may not be required; and we do not reverse the decree because of the failure of the court to order this done. The money to be derived under the audit now in progress may suffice to meet these obligations.
There appears, however, to be error in the decree in allowing the secretary and treasurer credit for the deposit which was lost upon the failure of the bank in which it had been made. It is insisted that the treasurer was “simply an officer of a quasi public corporation,” and that he is liable for the loss of this money in the event only that his negligence had contributed to the loss; and it was not so contended.
We are of the opinion that the treasurer is responsible for this money, although he was not guilty of negligence or bad faith in depositing it in the bank which failed. He was a public officer and did not comply with tlie provisions of § 1 of act 182 of the Acts of 1927, page 634, entitled, “An act requiring the commissioners and treasurers of all improvement districts in this State to require depositories of the funds of such improvement districts to give surety bond for the full amount deposited.” Epstein v. Kansas City Life Ins. Co., ante p. 451; Huffstuttler v. State use White County, 183 Ark. 993, 39 S. W. (2d) 721.
The account of the treasurer will therefore be charged with the amount of this deposit, and, as his account is being audited in the court below, the cause will be remanded with directions to disallow this credit, but the court will allow a credit as was originally done on account of salary. | [
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Smith, J.
On July 13, 1931, Mrs. Bessie Howell filed suit in the Sebastian Chancery Court, Fort Smith District, against E. C. Dunbar and his wife to foreclose three separate mortgages executed to her by them. Each mortgage secured a separate debt and conveyed a different lot as security therefor. Summons issued as is provided by law, and was duly served the day after the issuance thereof. After service of summons, a receive was appointed by order of the court to take possession of the mortgaged property. The receiver qualified as the law requires, and Collected certain rents, a report thereof being later made and confirmed by the court.
No answer was filed, and a decree was entered ordering" the foreclosure of the mortgages, and pursuant to this decree a sale was had by a commissioner named for that purpose-. The decree of foreclosure directed that the sales he made on a credit of three months and that the purchaser be required to give bond, with approved security, for the purchase money, with lien retained upon the property sold as security.
Tom Dunbar, a brother of E. C. Dunbar, was the highest bidder at the commissioner’s sale, and all three lots were sold to him. He failed to comply with his bid by executing’ the bond which the decree of sale required. The sale occurred at Fort Smith, and Tom Dunbar asked that he he given two- or three days in which to return to his home in Dardanelle and secure the execution of the bond which the decree of sale required. The commissioner refused to give the three days’ time requested, but did give three hours, and when Tom Dunbar failed to complete his bid by executing the bond required the commissioner, on the same day, reoffered the lots for sale and sold them to Mrs. Howell, the plaintiff in the action, for $500 each, or the total sum of $1,500, which was only $25 less than the sum total of Tom Dunbar’s bid.
The commissioner filed on October 3-, 1931, a report of the sale, which came on for confirmation at the same term of the court. Exceptions were filed to this report, which have been lost and do not appear in the record. There was filed a response to these exceptions, which does appear in the record.
An order was entered at the October, 1931, term of the court which recites.that on October 7, 1931, a day of that term, the exceptions came on to be heard, and that “this is the date and hour previously fixed for the hear ing of said exceptions of which plaintiff and defendants had notice,” and that the plaintiff appeared, hut the defendants did not, and that “the cause is submitted upon the exceptions of the defendants and plaintiff’s response thereto, and the testimony of witnesses, and on the whole record, from all of which the court finds the issues of law and fact in favor of the plaintiff.” The testimony, which this order recites was heard by the court, has not been brought into the record. Upon this finding the exceptions to the report were overruled, and the report of sale was approved and confirmed.
Later a “motion for review and amendment” was filed by E. C. Dunbar, which recites that the motion is in the nature of a bill of review. This motion recites the various reasons why the report of sale should not have been approved, and, among others, that Dunbar had no notice of the hearing of the report. Testimony was heard on this motion and the response thereto, which has been 'brought into the record before us. It was alleged in the response that objections and exceptions to the report were made which had not been originally made.
Upon hearing this motion and the response thereto the court prepared a written opinion, which was incorporated in the decree rendered therein and from which is this appeal. This opinion contains the following recitals:
“OPINION OP THE COURT.
“Referring to the matter we had on hearing this morning in the case of Bessie Howell v. E. C. Dunbar et al, No. 8192; I have gone into the matter very carefully and read the motion to substitute exceptions for those filed in the case on the 5th day of October, 1931, and relying principally upon my own memory as to what the exceptions contained at that time, I shall be compelled to deny the motion to substitute the exceptions filed today for the ones filed at that time and alleged to have been lost.
“The original motion, or exceptions, in the case were filed some time near the 5th of October, and, upon proof being made on the 7th day of October that the attorney for defendants had been notified that there would be a hearing on his exceptions, the hearing was' had and proof taken with regard to all matters- in the exceptions as filed at that time. The exceptions were overruled, and, upon request of the defendant, an appeal to the Supreme Court was granted. At the same time the court signified that, while the court was in session, the case, on his motion, would be reopened and any additional testimony might be heard, but attorney for defendant said that would not be necessary; that he would just go on with the appeal.
“I find that the new exceptions proposed to be substituted for the original ones to contain many matters that were not in the original exceptions. The original exceptions were practically as testified to, I think, today by Mr. Wood — in substance, at least. I think he covered about all the issues raised at that time; so, that being the case, it is necessary that I deny the motion to substitute the substituted exceptions.”
The findings of fact there recited do not appear to be contrary to the preponderance of the evidence.
The original decree overruling the exceptions to the report of sale and approving the sale was rendered October 7, 1931, and the transcript on the appeal from that decree was filed December 21, 1931, and the record has been amended to bring before us the subsequent proceedings above recited. We have before us all the papers and proceedings in the cause save only the original exceptions to the report of sale, and we find no irregularity calling for the reversal of the decree approving the report of sale and ordering deed to be made pursuant thereto.
It appears that the decree of foreclosure was rendered fifty-one days after service of summons was had. In the meantime there had been several adjourned ses sions of the court. The rendition of the decree under the facts herein stated was authorized by act 290 of the Acts of 1915, page 1081. This is an act entitled “An Act to regulate pleading and practice in the Circuit and Chancery Courts of the State of Arkansas,” and was construed in the case of Tuggle v. Holman Real Estate Co., 126 Ark. 25, 189 S. W. 169. It was there held (to quote a headnote in that case) that: “Under Kirby’s Digest, § 6188, as amended by act 290, p. 1081, Acts of 1915, the answer or defense to any complaint or cross-complaint must be filed before noon of the first day the court meets in regular or adjourned session where the summons has been served twenty days in any county in the State; and judgment by default may be rendered on any day of any regular or adjourned session when the defense has not been filed on or before noon of the first day of court twenty days after service of summons. (For good cause, however, the trial court has a discretion to allow further time.) ” See also, Southwest Power Co. v. Price, 180 Ark. 567, 22 S. W. (2d) 373.
As defendants were in default of an answer' when the decree of foreclosure was rendered, the decree was properly rendered. It may be said, moreover, that no valid defense to the foreclosure suit is alleged.
We are also of the opinion that the exceptions to the report of sale were properly overruled, and that no error was committed in approving the report. We do not know upon what testimony that action was taken, and we know only that testimony was heard which has not been brought into the record.
As an original proposition, the only reasons requiring discussion for not approving the report of sale are: (1) that the decree of foreclosure was prematurely rendered; (2) that the commissioner should have given Tom Dunbar the time requested to comply with his bid; (3) that the report was heard and confirmed without notice; and (4) that the sale was for a grossly inadequate price. But, as has already been stated, the decree was not rendered prematurely. There was no error in refusing Tom Dunbar the time requested to complete his hid. The terms of sale were provided in the decree of sale and in the notice thereof, and the purchaser should have been prepared to comply therewith. Had the time requested been given, and had the purchaser failed to comply with his bid, a resale might and probably would have been necessary. The law contemplates that the sale shall be made on the day advertised, and the execution of the bond on that day was a part of the sale, and the purchaser should have been prepared to execute the bond on that day. See § 41, chapter Judicial Sales, 35 C. J., page 29. The court found that the exceptions were heard at the time appointed for that purpose. And, as to the inadequacy of price, it suffices to say that the bid of Tom Dunbar for all the lots was only $25 more than the bid approved by the court.
Upon a consideration of the entire record, the decree appears to be correct, and it is therefore affirmed.
Crawford & Moses’ Digest, §§ 1208, 1285. (Rep.) | [
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Wood, J.,
(after stating the facts.) The rule is well settled “that a mortgagee is not entitled to demand of the owner of the equity of redemption the rents and profits of the mortgaged premises until he takes actual possession.” Teal v. Walker, 111 U. S. 242; Greer v. Turner, 36 Ark. 29; Freedman’s Saving & Trust Co. v. Shepherd, 127 U. S. 494; Mayo v. Fletcher, 14 Pick. Mass. 525. The purchaser at a sale under the mortgage, when a stranger to the mortgage, could certainly have no greater rights than the mortgagee when' he purchased. The mortgagee, after forfeiture and sale, having purchased, is certainly entitled to possession, and to the rents and profits, after notice to quit and a demand for rents and profits has been made. But even the mortgagee himself is not entitled to any more than this. Much less would a purchaser, not the mortgagee, during the period for redemption be entitled to rents and profits without demand, notice or suit for possession.
The question of the right to possession is not involved. Appellee concedes that to appellant. The .status of the owner of the equity of redemption in possession and during the period allowed for redemption is-that of a tenant by sufferance, who is not required to pay rent. Wood’s Landlord and Tenant, §§ 6, 11; 12 Am. & Eng. Enc. Law (1st Ed.), 668, 669; 1 Taylor, Landlord and Tenant, § 64; Stedman v. Gassett, 18 Vt. 346.
Affirm. | [
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Butler, J.
Action by appellee for total disability under the provisions of a policy issued by appellant. Judgment in the court below, from which is this appeal.
1. The appellant, Mutual Life Insurance Company, is a foreign corporation with, its domicile in the State of New York, and the appellee is a citizen of this State. The amount sued for was $3,000 and attorney’s fee. It is the contention of the appellant that the prayer for attorney’s fee made the amount sued for more than $3,000, exclusive of interest and costs, within the meaning of the Federal statute, and on that theory, in apt time, filed its petition for removal of the cause to the United States District Court in the proper district. The court overruled that motion,, and this action of the court is the first assignment of error urged upon our attention.
Counsel for appellant has cited a number of cases which support their view, but this court has recently had the identical question before it in the case of Missouri State Life Ins. Co. v. Johnson, ante p. 519, and ruled against the contention here made. On the authority of that case, we hold that the assignment urged is not well taken.
2. That portion of the policy involving the question of disability and the rights and duties of the parties in respect thereto is that, upon due proof to the company by insured “that he has become totally and permanently disabled by bodily injury or disease so that he is, and will be, permanently, continuously and wholly prevented thereby from performing any work for compensation, gain or profit, and from following any gainful occupation,” during the continuance of the disability, and, after proof made, the payment of premiums accruing thereafter will be waived by the insurer, and it will pay to the insured a monthly income of $10 for each $1,000 of the face value of the policy, the first premium being due on receipt of said proof, and subsequent payment on the first day of each calendar month thereafter; that, after proof had been made and accepted, the insured nevertheless was required, no oftener than once a year, on demand of the insurer, to furnish proof of the continuance of the disability, and the right was reserved, if it should appear to the insurer that the insured had become and was able “to perform any work or follow any occupation whatever for gain or profit, no further premium shall he waived, and no further income shall he paid.”
The policy was for $2,000, issued on January 18, 1922; the premiums were regularly paid on or before their due date, and it was in full force and effect on July 28, 1926, the date of appellee’s injuries. Thereafter, ap-pellee made claim and furnished due proof of total and permanent disability occasioned by his injuries; the claim was allowed, and the insurer made the disability benefit payments of $20 per month to the insured regularly until and for the month of December, 1930. Ascertaining that the insured had been elected to the office of circuit clerk of Nevada County and was inducted into office on January 1, 1931, the insurer declined to make any further payments, on the ground that the insured was no longer permanently disabled within the meaning of the policy, but was able to work and engage in a gainful occupation.
At the time of the injuries received by the appellee, he was a traveling salesman for a drug company. As a result of his injuries, his right arm is totally paralyzed, his right leg, because of fractures it sustained, has become shorter, and its function impaired so that he uses it with pain and difficulty, and it is not more than 25 per cent, efficient. At the time of the trial of this cause and before, at intervals of about sixty days, a sinus develops in the upper part of the leg, causing appellee to run a high temperature and requiring his confinement in bed for a period of about two weeks. It was necessary at these times that the sinus be opened to allow drainage. After the sinus was thoroughly drained, he begins to feel better, and can get around for a while until the sinus develops again. On the right heel there is a constant sinus which causes appel-lee discomfort. He is unable to walk without the use of a cane, and is obliged to wear a shoe specially constructed to fit the right foot because of the shrinkage of the bone from the fracture.
It is conceded that appellee’s physical condition is permanent, and such as is calculated to lessen his power of resistance and to destroy his vitality. His mental powers have not been affected by his injury, and. his mind is as it was before the date of the accident. In the summer preceding the election he was able to, and did, conduct an active compaign for office; he went around the country in a car, having some one to drive for him, making the rounds with the other candidates and making frequent speeches to the voters, and was not seriously ill during the campaign. The appellee is not able to do any physical work in connection with his office, which requires a considerable amount of physical labor. The office is conducted by means of deputies. It is on a fee basis, and from the fees received the appellee pays for the deputies needed. He is able to sign his name with his left hand, and spends the time sitting around the office, giving it his general supervision. It appears that, with the exception of signing his name, the appellee is unable to do anything of a substantial nature in his office; and, while he is able to go to the office daily and usually to remain during office hours, some two or three’ times a week he is obliged to leave and go home about two o’clock because his injured leg requires rest. Although he conducts the office by deputies, he has received, in addition to the salaries paid to them, a substantial sum from the time he went into office until the date of the last trial in the court below.
From these facts, which are undisputed, it is strongly insisted that a case arises where the injuries, though great, and the disabilities, though serious, do not bring them within the nature of such as were contemplated when the policy was issued, and counsel do not believe a single case can be found where a recovery under such conditions has been sanctioned. It must be conceded that this is a unique case, and it is to be doubted whether one similar in all its circumstances has been before the courts. We do not agree, however, with the theory held by the appellant, for, if we adopt it, no case of total disability can arise except where not only the body is disabled, but the mind wrecked as well. No matter how seriously the body may be affected, there are those who, because of some peculiar ability or because of some happy chance, are still able, despite their handicap, to escape from beggary and to earn a living. Cases are not infrequent where men have been stricken totally blind and yet have earned substantial incomes; some, with their bodies totally disabled, have been able to conduct a successful business from the bed in which they are continuously confined; others, because of fortuitous circumstances, have been placed in a position where they were removed above want. These cases all arise, however, because of the possession of some extraordinary capacity or of some fortunate circumstance. Certainly, no cases of this character were in the minds of the insured or the insurer when the contract was entered into, but only the ordinary and usual events that would affect the ordinary person.
In construing contracts such as the one now before us, it has always been insisted by the insurer that a strict and literal interpretation is required, and a few courts .have adopted this view. The great majority, however, decline to do so, on the theory that a fair intention of the parties is that the insured should receive indemnity when he is so injured as would prevent him from carrying on any business which, without the injury, he is able to do or capable of engaging in. In the case of Industrial Mutual Indemnity Co. v. Hawkins, 94 Ark. 417, 127 S. W. 457, the following rule was announced: "In the construction of all contracts, the true object is to arrive at the intention of the parties; and, in order to do that, it is necessary to take into consideration the purpose of the parties in making the agreement. In construing such a provision as is involved in this policy, that meaning should be given to the language which will be consistent with the fair import of the words used, having reference to the object and purpose of the parties in making the contract. The contract sued on is like any other insurance policy, and its provisions should therefore be con strued most strongly against the insurer. As tbe language employed is tliat of tbe defendant, a construction will not be adopted wbicli will defeat a recovery if it is susceptible of a meaning that will permit one.”
In the instant case, it is undisputed that practically none of the essential duties of the office of circuit clerk is performed by the appellee. He merely sits around as long as his injuries will permit, signing his name and filing a few papers.
“This court has held that provisions in insurance policies for indemnity in case the insured is totally disabled from prosecuting his business do not require that he shall be absolutely helpless, but such a disability is meant which renders him unable to perform all the substantial and material acts of his business, or the execution of them in the usual and customary way. * * * The object to be accomplished was to indemnify the insured for loss of time for being wholly disabled from prosecuting his business. It has been well said that, if the language used was to be construed literally, the insurer would be liable in no case,unless the insured should lose his life or his mind. Of course, as long as he is in possession of his mental faculties, he is capable of transacting some part of his business; but, as we have already seen, he was not able to prosecute his business within the meaning of the policy unless he was able to do all the substantial acts necessary to be done in its prosecution. The very purpose of obtaining the policy was to indemnify him in case he should become disabled, so that he could not carry on his business.” Ætna Life Ins. Co. v. Spencer, 182 Ark. 496, 32 S. W. (2d) 310, (quoting from pages 500-1). In that case Spencer, the insured, was engaged in the truck and produce business, and prior thereto had taught school and farmed. For several years he had suffered with sacroiliac arthritis and sciatic neuritis, which had disabled him to some extent, but finally he became so disabled that he could do but little work. He could walk around, but was unable to do anything in his place of business except sit around a part of the day answering the telephone and advising with his sons as to the conduct of the business. The contract of insurance in that case was practically the same as in the case at bar, and it was there held, under the rule stated, Spencer was entitled to recover. The rule announced was recognized in Missouri State Life Ins. Co. v. Snow, 185 Ark. 335, 47 S. W. (2d) 600, and in Travelers’ Protective Ass’n v. Stephens, Id., 660, 49 S. W. (2d) 364.
If the appellee had been circuit clerk at the time he was disabled, the fact that he could go to his office and sit around and sign his name would certainly not have precluded him from obtaining the benefits for which he had contracted and paid. ¥e can see no difference in his having obtained this office after the disability than in the state of case supposed, and we do not think that an office such as that of circuit clerk was in the mind of the parties at the time of the contract, or, under the facts in this case, that it comes within the term, “gainful occupation.” It has no degree of permanence, and in this particular case appears to he, so far as the appellee is concerned, a sinecure bestowed upon him perhaps because of his infirmities by an indulgent people. In any view of the case, since the appellee is not able to perform all of the substantial duties of the office in the usual and customary way, he is totally disabled within the rule announced in the case of Ætna Life Ins. Co. v. Spencer, supra, and, as the facts are not in dispute, the court properly directed a verdict for the plaintiff.
3. The court instructed the jury on the question of damages to the effect that, if they found that the appellee was totally and permanently disabled within the meaning of the policy, they might return a verdict for a sum equal to the present value of the monthly benefits payable monthly during the period of appellee’s life expectancy. The appellant contends that this was error, and in this contention we agree. The general rule permitting recovery on the theory of anticipatory breach is stated in Richards on the Law of Insurance, 4th ed., p. 580, § 342, as follows: “By the weight of authority, if the insurer renounces the continuing contract of insurance, upon his part, and unequivocally refuses in advance of its maturity to perform it, the insured may at his option take the insurer at his word. The insured is then relieved of the duty of further performance on his part, and may maintain an action at law for damages, before the specified date of expiration. * * *
“Especially is the rule clear where the insurer not only repudiates the contract by his declaration that he will not pay in future, but also violates a present obligation under the contract, by refusing to accept a premium when due. It would indeed be a harsh doctrine that compelled the insured to struggle on paying premiums all his life or tendering premiums to an unfriendly insurance company, in constant apprehension of a lawsuit in place of an immediate cash payment, as his family’s inheritance upon his own decease. The insurer’s refusal to perform his promise, however, must be distinct, unequivocal and absolute, and the reliance by the insured upon such renunciation must be equally clear to warrant his action for damages before maturity of the contract. And if, with knowledge of the facts, the insured elects to continue with the contract, he cannot subsequently exercise a second and inconsistent election to treat it as abrogated. ’ ’
The case of Roehm v. Horst, 178 U. S. 1, 20 S. Ct. 780, cited in the text, is the leading case on that question, and supports the rule stated. There are many authorities holding in accordance with the rule announced in Boehm v. Horst, which we deem it unnecessary to cite, since that rule was approved by this court in the case of Kirchman v. Tuffli Bros., 92 Ark. 111, 122 S. W. 239, in the following language: “In the case of Boehm v. Horst, 33 C. C. A. 550, it was ruled that a positive and absolute refusal to carry out the contract prior to the date of actual default amounted to a breach of the contract, and that, after the renunciation of the agreement by the one party, the other party should be at liberty to consider himself absolved from any further performance of it, retaining his right to sue for any damage he has suffered from the breach of it. This case was affirmed by the Supreme Court of the United States in the case of Roehm v. Horst, 178 U. S. 1, [20 S. Ct. 780] and, we think, correctly announces the rights of the parties under such circumstances.”
In the instant case there was not a refusal to carry out the contract and a renunciation of the agreement, hut, in the course of the correspondence between the parties, when default was first made in the payment, there was simply the contention that, under the existing facts, the insured for the time being was no longer entitled to the monthly benefits. Recognizing that there had been no repudiation of the contract, appellee paid the premium January 25, 1932, and testified that the policy was still in effect, and in his complaint alleged that the contract had been put in force in January, 1922, and had remained in full force and effect thereafter, and was in full force and effect at the time of the filing of the suit. The appellant, in its answer expressly disavowed any repudiation, but affirmed the contract, and merely contended that under its terms the appellee was not entitled to the monthly benefits. This makes this case unlike that of Ætna Life Ins. Co. v. Phifer, 160 Ark. 98, 254 S. W. 335, relied upon by appellee. In that case the plaintiff was allowed to recover the present value of the future benefit installments because the court found that there had been a total repudiation of the contract in that the insured, by letter, had in express words denied liability on the claim that the policy had lapsed. The court said: ‘ ‘ This letter evinced an intention on the part of the appellant not to be bound by the terms of the contract and was equivalent to a renunciation thereof.” That case followed the rule in Boehm v. Horst, supra. Since then there have been a number of cases before the court where recovery was allowed for damages for anticipatory breach, the latest cases being Liberty Life Ins. Co. v. Olive, 180 Ark. 339, 21 S. W. (2d) 405; Ætna Life Ins. Co. v. Spencer, supra; Travelers’ Protective Ass’n v. Stephens, supra; National Life & Acc. Ins. Co. v. Whitfield, ante p. 198; Atlas Life Ins Co. of Tulsa v. Bolling, ante p. 218. In all these cases it appears that damages for anticipatory breach were allowed because of an unqualified renunciation of the contract.
In the Whitfield case, the case of Ætna Life Ins. Co. v. Phifer, supra, was referred to as authority for the holding there made, and in the Bolling case the contract was repudiated on the allegation that it had been obtained through fraud. We have made diligent search and have been unable to find any case holding contrary to the rule announced in Richards on the Law of Insurance, expressly approved by this court in Kirchman v. Tuffli Bros., supra, and followed in subsequent cases.
4. Since the .judgment must be modified and limited to the amount of the matured monthly benefits at the time of the filing of the suit, it follows that the attorney’s fee was improperly allowed by the court as the amount to be recovered will not equal the amount sued for. Pacific Mutual Life Ins. Co. v. Carter, 92 Ark. 378, 123 S. W. 384. It is therefore unnecessary for us to determine here the contention that § 6155 of Crawford & Moses’ Digest regarding attorney’s fees to be taxed as costs in certain cases does not apply in suits for damages for anticipatory breach.
The judgment of the trial court will be modified so as to eliminate the attorney’s fee, and all sums in excess of the benefits matured at the time of the filing of the suit, with six per cent, interest per annum thereon, and, as modified, will be affirmed without prejudice to the maintenance of further actions by the appellee upon the benefits now matured or such as shall hereafter fall due. It is so ordered. | [
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Kirby, J.,
(after stating the facts). It is insisted that appellant was not bound by the printed condition upon the back of the message, requiring that the claim for damages should be presented within sixty days from its transmission, since she had no knowledge of, and did not consent to, it. It is no longer questioned that damages for mental anguish may be recovered by the one suffering it, either the person to whom the message was addressed or by whom it was caused to be sent. 3 Sutherland, Damages, § 975.
John Lavelle, the husband, was appellant’s agent, with authority to send or have the message sent to her brother, and he dictated it as desired to the assistant operator, who at his request wrote it out on the usual telegraph blank containing the condition and then read it over to him for his approval.
The second message was sent likewise. If the husband had written the message himself, he would doubtless have used the customary telegraph blank, and without doubt he had the authority to do so, and the operator in writing the message at his request was the agent of the sender, and not of the company.
It is not contended that there was any fraud or concealment practiced upon the husband at the time the message was sent, but only that the actual message, as dictated by and written for him, was read over without the printed conditions upon the back of the blank upon which it was written being called to his attention.
Appellant’s husband, in thus sending the message, authorized the writing of it upon the blank as it was written, and the fact that his attention was not called to the printed condi ■tions on the back thereof, and they were not read over to him at the time the dictated message was read for his approval, does not show any fraud or concealment upon the part of the operator by which he was in any way misled.
It has often been held that the stipulation for notice of a claim for damages within sixty days from the transmission of the message is reasonable, and the company can require messages sent subject to it and refuse to send them otherwise, and the husband, plaintiff’s agent, having authority to write the message himself and preferring to do it by the hand of the operator under his direction, bound her thereby to the same extent as if he had himself written and signed the message upon the blank upon which it was written. Western Union Tel. Co. v. Dougherty, 54 Ark. 221; Western Union Tel. Co. v. Moxley, 80 Ark. 554; Western Union Tel. Co. v. Prevatt, 149 Ala. 617, 43 So. 106; Western Union Tel. Co. v. Benson, (Ala.) 48 So. 712; Gulf, C. & S. F. Ry. Co. v. Geer, 24 S. W. (Tex.) 86.
The sendee of the messages received both of them more than thirty days before the expiration of the sixty-day limit, and there was' plenty of time after their delivery to comply with this reasonable stipulation.
There being no dispute as to facts, the verdict was properly directed. The judgment, is affirmed. | [
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McHaNey, J.
Appellant was convicted of murder in the first degree for the killing of C. H. Atwood, an employee of the Black & White Store at 12th and Welch streets, Little Bock, Arkansas, while engaged in robbing the store, and was sentenced to die in the electric chair. The robbery and killing occurred April 15, 1932.
In his motion for a new trial, appellant assigns two errors of the trial court for reversal, to-wit: (1) “because the court erred in allowing the prosecuting attorney to ask the jurors as to their conscientious opinions in the manner in which the questions were framed”; and, (2) 'because the verdict is contrary to the law and -to the evidence.
1. We understand this assignment refers to the questions asked prospective jurors on their voir dire concerning any conscientious scruples they might have in returning a verdict of guilty where the punishment is fixed by law at death if the facts justified such a verdict. We understand further that the objections made go to the form of the questions only. The form of the questions objected to varied somewhat in wording, but substantially they were all the same. For instance, one juror was asked this question: “Have you any conscientious scruples against returning a verdict of guilty where the punishment is fixed at death if the facts justify returning a verdict of that sort ? ’ ’ Another was asked: ‘ ‘ Have you any conscientious scruples against voting for a verdict of guilty where the law fixes the punishment at death?” Substantially all the questions were the same. It is well settled in this State that there is no error in permitting the prosecuting attorney to ask prospective jurors such questions. In Bell v. State, 120 Ark. 530, 180 S. W. 186, the State was permitted, over appellant’s objections, to ask prospective jurors similar questions which was assigned as error. Overruling this contention, the court said: “Under the law, as we construe it, capital punishment has not been abolished, and it still being within the province of trial juries to return a verdict that would result in capital punishment, the State, in the trial of cases where the death penalty may be imposed, is entitled to a jury that has no conscientious scruples as to such penalty.” And in Jones v. State, 58 Ark. 390, 24 S. W. 1073, this court held that: “It was altogether proper for the prosecuting attorney to ask the jurymen on their voir dire if they had any conscientious scruples that would preclude them from returning a verdict of guilty when the law and evidence would justify same; and, on their answering the question in the affirmative, it was not error in the court to excuse them.” The court did not therefore err in overruling the objections to the questions asked the jurors.
'2. As to the assignment of error, that the evidence was insufficient to support the verdict, but little need be said. Counsel for appellant, in open court, admitted that he was the man that robbed the store and shot Mr. Atwood, and that it occurred in Pulaski County. The undisputed evidence further shows that appellant deliberately killed Mr. Atwood in cold blood while engaged in robbing said store; that he came into the store with a gun in each hand, forced two of the employees into the ice box, held up a customer, and, while robbing the cash drawer, when Mr. Atwood rose np from behind the counter to see what was taking place, appellant shot him. He was a short time thereafter captured by the officers, still having the two guns in his possession and confessed his guilt. No evidence was offered in appellant’s behalf. Under this state of the case, the jury could not well or reasonably have returned any other verdict than guilty, as charged in the indictment, carrying with it the death penalty.
Affirmed. | [
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McCulloch, C. J.
Mary Person, a negress, was killed at Marked Tree, Arkansas, by a train operated by the receivers of the St. Louis & San Francisco Railroad Company, and letters of administration on her estáte were issued by the clerk of the probate court of Poinsett County to J. B. Phillips, who gave bond and took charge of the estate. Phillips, as such administrator, entered into a written contract with appellant C. T. Carpenter, an attorney at law, to bring suit against the operators of the railroad and recover damages sustained by the estate on account of the death of said decedent, and in the contract stipulated that appellant should receive a certain portion of the amount recovered as compensation for his services. Appellant instituted the action in the name of the administrator to recover damages for the benefit of the estate, and a consent judgment was rendered in favor of the plaintiff against the defendant receivers of the rail- • road to recover damages in the sum of $1,750, which sum was by the receivers paid over to the clerk of the circuit court, where the judgment was rendered.
The contract between appellant and the administrator was not authorized nor approved by the probate court, nor did the probate court approve the issuance of letters of administration to Phillips, but on the contrary, when the action of the clerk came up for confirmation at the next term, the probate court rejected the appointment made by the clerk in vacation and made an order appointing M. W. Hazel as administrator of said estate. The suit against the receivers had, however, been prosecuted to a consent judgment in the name of Phillips as administrator. At a subsquent term of the circuit court, while the funds paid over to the clerk on the judgment still remained in the hands of that officer, appellant filed a petition setting forth his contract with Phillips as administrator and praying that a lien be declared in his favor for the amount earned under the contract, and that the clerk be ordered to pay his portion of the recovery over to him. Hazel as administrator intervened for the purpose of resisting the prayer of appellant’s petition and upon the hearing the circuit court'decided that it had no jurisdiction to enforce the lien of the attorney against the estate and ordered the clerk to pay over the funds to Hazel as the administrator of said estate. An appeal from that order has been duly prosecuted.
We have no question before us of the right of an attorney to enforce in the circuit court a lien for services for recovering judgment in an action brought by an administrator for the benefit of the next of kin pursuant to the provisions of section 6290, Kirby’s, Digest, the statute patterned after Lord Campbell’s Act. We find it unnecessary to express an opinion on that question. The record before us, as abstracted, shows that the action was instituted by the administrator for the benefit of the estate. The only suggestion in the record about the next of kin having an interest in the result of the action is that before the appointment of the administrator “a family council” was held and the heirs of Mary Person agreed that Phillips should be appointed administrator and S. M. Anderson should be appointed as guardian of an infant heir, and that appellant should be employed as attorney. We accept, however, the unqualified statement in the record that the suit was for the benefit of the estate, and can not assume that it was in whole or in part for the benefit of the next of kin. Nor is there any question involved here of enforcing a lien where the heirs of a deceased intestate have paid the debts of the estate and sue to enforce liability in favor of the estate. The statute giving the right of the heirs to maintain an action under those circumstances is expressly limited to cases where “all persons interested as distributees of the estate of such intestate are of full age.” Kirby’s Digest, $ 15. The statute is exclusive, and an action can only be maintained when the distributees are of full age. Chisholm v. Crye, 83 Ark. 495.
The statutes of this State provide that the compensation of an attorney for his services shall be “governed by agreement, express or implied, which is not restrained by law;” that from the commencement of the action or proceedings the attorney has a lien upon his client’s cause of action which attaches to the judgment or final order in his client’s favor, and that the court “before which said action was instituted, or in which said actoin may be pending at the time of said settlement, compromise or verdict * * * shall determine and enforce the lien created by this act.” Arkansas Act, May 31, 1909, page 892.
(1-2) In May v. Ausley, 103 Ark. 306, it was decided that a lien created under the statute just referred to must be enforced in the trial court and that this court has no jurisdiction to entertain a petition for the enforcement of such lien. We are of the opinion that this statute has no application to suits by an administrator for the benefit of an estate of the decedent, for to give it that effect would constitute an invasion of the exclusive jurisdiction vested in probate courts by the Constitution. An amount paid to -an attorney for conducting litigation for the benefit of an estate is a part of the expenses of administration, and payment of the amount is a distribution of a part of the assets of'the estate. It is necessarily a part of the jurisdiction of the probate court which is exclusive over that subject, and no other court can invade that jurisdiction. Hankins v. Layne, 48 Ark. 544; Ferguson v. Carr, 85 Ark. 246; Coppedge v. Weaver, 90 Ark. 444.
(3) The statute does not authorize .an administrator, without the consent of the probate court,, to enter into a contract so as to bind the estate, and a contract made by an administrator constitutes his own undertak-. ing for which he alone is responsible, although it is within the province of the probate court to make an allowance to the administrator as a part of the expenses of administration. Reynolds, Admr., v. Canal & Banking Co., 30 Ark. 520; Tucker v. Grace, 61 Ark. 410.
In Tucker v. Grace, supra, Judge Riddick, speaking for the court, said: “An administrator has no power to enlarge, by his contract, the liability of the estate that he represents. Whether he contracts as an administrator or not, it is his own undertaking, and not that of the decedent, and he incurs a personal liability. An attorney employed by the administrator of an estate has no claim against the estate, although his services may have inured to the benefit of the estate. . He must look for compensation to the administrator who employed him.”
(4-5) The doctrine of the case last cited is, we think, decisive of the case at bar, and the circuit court was cor-: rect in holding that it had no jurisdiction to adjudicate the amount payable to the attorney and to declare a lien on the amount recovered from the defendants in the original action. The funds recovered in that action and paid over to the clerk belong to the estate of the decedent and can only be distributed by the probate court. The judgment is, therefore, affirmed. | [
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Riddick, J.,
(after stating the facts.) The plaintiff contends that the company was guilty of negligence in failing to put railings along the side of the bridge constructed by it across the cut in the street, and that this negligence occasioned the injury. While the company was not required by any order of the city or its enginéer to put railings along the sides of the bridge, still there is nothing in the evidence to show that it was forbidden to do so, and the question presented is whether the jury were justified in finding that the company was guilty of negligence in failing to put up railings.
If one should, with the permission of the city, for his own advantage cut a ditch across a public street, and leave it unguarded and in a condition liable to injure those passing along the street, he would be guilty of negligence, and liable for injury occasioned thereby. It is also clear that if the city should dig the ditch, aud if one should alter or enlarge the ditch so as to make it still more dangerous, he might become liable for injury caused by such change in the character of the opening. 1 Shearman & Redfield on Neg. (5th Ed.) § 359, and eases cited.
The deep cut across the street, into which plaintiff’s horse fell from the bridge constructed by defendant, was, if left unguarded, more or less likeh to cause injury; and, although the company did not make the ditch, and, is- not responsible for it, still it was bound to exercise due care not to increase the danger. If the bridge had not been erected, the city could have closed the ends of the street abutting on the cut, so as to prevent persons or animals from falling into it, but after the erection of the bridge the ends of the street could not be entirely closed, as a passage was necessary for the- cars of defendant. In other words, the bridge constructed by the company for its own convenience made it impossible to guard the cut, except by flooring the bridge and then placing railings along its sides. The bridge was in a suburb of the city, where the owners of stock were permitted to let them run at large upon the streets. In passing this street, stock would be apt at times to attempt to pass over this narrow bridge, and, if frightened while upon it, were in danger of falling from its unguarded sides into the cut below, as plaintiff’s horse fell. This, bridge, in effect, extended the sides of the cut from which the animals could fall, aud, on account of its narrowness and unguarded sides, was more or less dangerous. Under these circumstances, we think it was a question for the jury to say whether this narrow unguarded bridge connecting the ends of the-street severed by the cut did not add to the danger of the cut, and whether the company was not guilty of negligence in leaving it with unguarded sides. Though the case is not free from doubt, we are of the opinion that the questions of negligence and contributory negligence were properly submitted to the jury.
Judgment affirmed. | [
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Mehaffy, J.
The appellee, Alma Dunham, commenced this action in the Arkansas County Circuit Court against the appellant, Life & Casualty Insurance Company of Tennessee, for the recovery of $435 alleged to be due her from appellant, under a policy of insurance, written on the life of her son, Theodore Clemons. The policy was issued under the industrial plan, and did not require a medical examination prior to its issuance. The application was signed at Stuttgart, Arkansas.
The insured was an inmate of the State Hospital for Nervous Diseases, and it is contended by appellant that he was there as an inmate at the time the application purported to have been signed. The policy is dated in March, 1931. The insured was paroled from the asylum March 20,1931, and was returned in April, 1931, and died there from general paralysis, caused by syphilis, in June, 1931.
The appellant, in its answer, denied the material allegations of the complaint, and alleged that there was fraud on the part of the insured in obtaining the policy sued on by reason of misrepresentations as to health. It alleges the insanity of the insured at the time the policy was issued, and, as a further defense, pleads a specific provision of the policy that, should the insured die within two years of the date of the policy, and had, before its date, been treated for a serious disease by a physician, the company would only be liable for the amount of the premiums paid, which it alleged was $3.75, and it tendered that amount in court. The appellant also charged that the policy was issued and delivered through fraud of the said insured, and upon false and fraudulent misrepresentations, warranties and statements of the applicant.
After the evidence was introduced, attorney for appellant stated that they had pleaded fraud in the answer, but they now waive that, and state that no one perpetrated any fraud in obtaining the insurance on the deceased, Theodore Clemons.
The case was tried before a jury, resulting in a verdict in favor of appellee for the full amount stated in the policy. Motion for new trial was filed, which was overruled by the court, and the case is here on appeal.
It is contended first by the appellant that the court erred in its refusal to give instruction No. 1, requested by it. No. 1 reads as follows: “You are instructed to find for the plaintiff in the sum of $3.75.”
The appellant contends that Theodore Clemons, the insured, had been treated by a physician for a serious disease and complaint before the date of the policy, and that he died from said disease at the State Hospital for Nervous Diseases within two years from the date of the policy.
The undisputed evidence shows that Curling, the agent of appellant, solicited the insured.
Mrs. Alma Dunham, the appellee, and the mother of the insured, testified that she had been acquainted with Mr. • Curling some time before this insurance was taken out; he had been coming there collecting on other policies, and he asked witness every time he saw the boy to let him write some insurance on him; that she did not know that he could get insurance, because he had been hurt; that he fell from a building in Little Rock and injured himself, and she did not think she could get any insurance on Mm. Mr. Curling, the agent, said he believed he could, and that he would take it up with the insurance company right away. Curling had been going to Mrs. Dunham’s place for some time, he knew the insured, knew his mother, and knew that he had been in the insane asylum. He also knew that the insured had been seriously injured by falling from the third story of a building in Little Eock, and she told Curling that he was very nervous and had been put in the hospital, and that he had better have him examined. She told him she would keep the premiums paid up, as she had two other ■boys with insurance in the same company, and, after she told him this, he wrote the insurance.
It therefore appears from the undisputed testimony that the insured had fallen from the third story of a building, and that the agent knew this, and knew that he had been an inmate in the hospital for nervous diseases, and therefore knew that he had been treated by a physician for a serious ailment. There is no positive evidence that the agent knew he had syphilis, and the probability is that the insured himself did not know what his ailment was. The mother of the insured appears not only to have told him all she knew about the physical and mental condition of the insured, but she told the agent, after telling about his injuries and ailments, that he had better have him examined.
It is true that one might know that a person was in the insane asylum without knowing that he had any serious physical ailment, but certainly one could not know that a person in the insane asylum had fallen from the third story of a building without knowing that he had been attended by a physician for a serious complaint. After the agent knew these things, he did not ask the insured any questions about his health or about doctors, and he did not ask the mother any questions about the insured’s health. The agent himself wrote the application, and the insured signed it, but did not read it. The answers in the application were written by the agent, and not by the insured. The application was signed, and Mr. Curling delivered the policy later. The insured was working about the hotel, which belonged to Alma Dunham.
The manager of the company was with Curling when the policy was delivered. When it was delivered, neither the insured nor witness read it.
The evidence of appellee concerning the writing and signing of the application and the delivery of the policy, and her evidence as to what the agent knew about insured’s condition are not only undisputed, but they are corroborated by other witnesses.
It is true that the insured was treated before the date of the policy for a serious complaint by a physician, but it is also true that appellant’s agent knew of his falling, and of his treatment in the insane asylum. Mrs. Dunham was asked if she knew whether or not a year before that time, or longer, he was afflicted with syphilis.^ She answered that she did not know, but she knew and told the insurance agent that he had been hurt.
It conclusively appears that, at the time the application was taken, and at the time the policy was delivered, appellant’s agents knew that the insured had had a serious complaint, and that he had been treated at the Hospital for Nervous Diseases. If the insurance company knew before the date of the application that insured had been attended by a physician for any serious disease or complaint, whether it knew what the specific complaint was or not, would make no difference. The insurance company did know that he had been attended by a physician for a serious disease, and, if it wished to know what specific complaint, it should have made inquiry.
The record shows that the agent who wrote the application and delivered the policy knew the condition of the insured; knew that he had been in the hospital, and knew that he had had a fall from a third story of a building, but he did not ask the insured any questions, but wrote the application himself with a knowledge of all the facts detailed above.
We have held that knowledge affecting the rights of the insured which comes to the agent of the insurance company, while he is performing the duties of his agency, in receiving applications for insurance and delivering policies, becomes the knowledge of the company, and the insurance company is hound thereby in spite of a provision in the policy to the contrary, where the agent who solicited the business was charged with the duty of asking the applicant questions concerning his physical condition. Southern Insurance Co. v. Floyd, 174 Ark. 372, 295 S. W. 715.
There is no dispute about the fact that Mr. G-urling, the agent of the company, had knowledge of the physical condition of the insured, while he was performing the duties of his agency in receiving the application and delivering the policy, and the agent in this case was charged with the duty of asking applicant questions concerning his physical condition. The undisputed evidence also shows that the agent brought this policy to the insured and said, at the time, that it was for $435, and that it was all right, and they relied on what he said.
It is apparent that the insured and his mother were led to believe by the agent that they were getting a policy for $435. The undisputed evidence shows that, when the policy was delivered, appellee asked the agent, and the agent said the company had agreed to let him write the boy up, and they took the policy, and kept the premiums paid up. ‘$435 is the amount ag’reed upon, and neither insured nor his mother read the policy. The agent brought it and said it was for $435.
In speaking of insurance contracts, this court said, speaking through Chief Justice Hill: “Insurance contracts are not, as a rule, made like other contracts. They are prepared by one party to the contract, and the other party thereto has no opportunity to deal with his contractor as to the terms, conditions, and limitations of the contract. The only option open to him is to contract or not to contract, and when he contracts it is upon terms prepared in advance by tbe other party, and reduced to printed form, which is sought to be as unchangeable as the laws of the Medes and Persians.
“To procure these contracts of insurance, agents are sent forth whose duties are limited to procuring insurance, and various clauses are inserted in the policies, and in the application therefor, disabling the agent from binding the company in any manner not stipulated in the policy. Can one party to a contract thus prevent himself being bound by the ordinary principles governing principal and agent? If a man sends forth an agent and clothes him with authority to do certain acts, his acts within the scope of that authority are binding- upon the principal; and moreover, if he clothes him with apparent authority to do certain acts, and privately instructs him to the contrary, and the agent proceeds to do those acts within the apparent scope of his authority, but contrary to his private instructions, still the principal is bound. When an agent does anything within the real or apparent scope of his authority, it is as much the act of the principal as if done by the principal himself.” People’s Fire Ins. Co. v. Goyne, 79 Ark. 315, 96 S. W. 365, 16 L. R. A. (N. S.) 1180, 9 Ann. Cas. 373.
In the instant case the company’s agent was dealing with a person who, he not only knew, had been in the insane asylum, and had been seriously hurt and was very nervous, but the agent did not ask him a question. He wrote the application himself. He not only knew these facts, according to the evidence of appellee, and knew that the insured was insane, but he knew that the mother with whom he dealt did not read the policy, and probably would not have understood it if she had. And these parties were informed, and the agent of the insurance company was bound to know that they believed, that the insurance policy was for $435, and that this amount would be payable upon the . death of the insured.
Appellee also offered in evidence the testimony of F. W. Dunham, the husband of Alma Dunham, but this was excluded from the jury. He was acting as agent in paying the insurance premiums, and, since he was paying the premiums as agent of the insured, the statement of the agent was competent. Dunham stated that he asked the insurance agent if the insurance was any good, and he said, if the hoy should die that night, his mother would get every dollar of it, and witness then paid him the premium.
Appellant states that, since the defense of fraud was waived, the sole defense was the limitation in the policy. If the insurance agent, knowing the facts detailed above, procured the application and delivered the policy, after having led the insured to believe that he was getting a policy for $435, this would constitute a waiver of the limitation in this policy. This, however, is a question of fact for the jury under proper instructions, and it is for the jury to determine whether there was a waiver or» an estoppel. If there was, plaintiff is entitled to recover. If there was not, then she is entitled to recover $3.75 only.
Objection was also made to the evidence as to the application. We think, under the circumstances in this case, this evidence was competent because it tended to show that the insurance company’s agent did not rely on anything said by either the insured or his mother, and, if appellee’s testimony is true, led- them to believe that they were getting a policy for $435.
Appellant next contends that the instructions are erroneous and conflicting. The instructions are in conflict, but we think it is unnecessary to set them out here. The only question, so far as this record is concerned, is whether the insurance company waived the provision in the policy, or is estopped from setting it up, and, as we have already said, these are questions of fact for the jury. There will be no difficulty in the trial court’s properly instructing the jury when the case is tried again.
For the error in giving conflicting instructions, the judgment is reversed, and the canse remanded for a new trial.
Mr. Justice Smith concurs. | [
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Riddick, J.
(after stating the facts.) The main contention on this appeal is that the evidence is not sufficient to sustain the verdict. It is the theory of the prosecution that the accused men stole Oliver’s meat, and used the two horses of Wiyzer to bring it down to Van Burén, or near there! The meat was undoubtedly stolen, and we believe that the thieves used the horses of Wiyzer to carry it away, but who those thieves were the evidence does not show. Leaving out the fact that France and the two other suspected men endeavored to evade arrest, there is nothing in the evidence to connect them with the crime charged. The evidence shows that, late in the afternoon before the meat was stolen, they were seen going along a public highway leading towards the place from which the meat was stolen. But they explained this by saying that they were going to Cedar creek to spend the night fishing. The testimony was not contradicted, but was corroborated by several witnesses who testified for the state. These witnesses, though introduced by the state, were relations and friends of defendant, and the jury may not have believed them. But if we disregard the testimony favorable to defendants, we have only the fact that they were seen on a public road a mile and a half from Oliver’s on the afternoon or evening before the meat was stolen at night.
The fact that one passes in the afternoon along a public highway by a house where a larceny is committed at night is, of itself, no evidence that he committed the larceny. But it is said that the circumstance of the horses being found near Yan Burén with grease on their shoulders tends to show that the meat was carried to that neighborhood, and that the accused men lived near Yan Burén, and by their own confession had been in a mile and a half of Oliver’s, and returned to Yan Burén on the night the meat was stolen. Assuming that the grease upon the horses came from the meat, the fact that these horses were found near Yan Burén, and near the home of their owner, shortly after the theft may be some evidence, though not very strong, that the meat was carried in that direction; for it may have been carried to another neighborhood, and the horses, upon being released, may have, of their own volition, returned to their former home. But if the meat was carried towards Yan Burén, this is hardly sufficient to raise a suspicion against the defendants more than against many others, and is really no evidence that they were connected with the crime. Yan Burén is a populous town, and numbers of people lived in the neighborhood where the meat was stolen. People were continually going back and forth between the two neighborhoods, but this does not show that any particular one of them took the meat. The circumstances tend to show that the meat was carried down the road after midnight of the night it was stolen, but the defendants and several witnesses for the state say that, although defendants were on Cedar creek about a mile and a half from Oliver’s place the day before the larceny, yet they returned home early in the night, about eight or nine o’clock. There is nothing to contradict this testimony, and nothing to connect the defendants with the crime except the fact that they afterwards endeavored to evade arrest. This circumstance, taken iu connection with the fact that these parties were in the neighborhood of the crime shortly before the larceny was committed, does raise a suspicion that they were connected with the crime. But is this sufficient to sustain the verdict? “When a suspected person attempts to escape or evade a threatened prosecution,” says Wharton, “it may be argued that he does so from a consciousness of guilt; and though this inference is by no means strong enough by itself to warrant a conviction, yet it may become one of a' series of circumstances from which guilt may be inferred.” Wharton, Crim. Ev. § 750. The court of appeals of New York, speaking of this question, said: “The evidence that the defendant made an effort to keep out of the way of the sheriff was very slight, if any, evidence of guilt. There are so many reasons for such conduct consistent with innocence that it scarcely comes up to the standard of evidence tending to establish guilt, but this and similar evidence has been allowed upon the theory that the jury will give it such weight as it deserves depending upon surrounding circumstances.” Ryan v. People, 79 N. Y. 601. This language was quoted with approval by the supreme court of the United States in a recent case where the court reversed the judgment of the district judge, saying of the charge to the jury that “it lays too much stress upon the fact of flight, and allows the jury to infer that this fact alone is sufficient to create a presumption of guilt.” Alberty v. United States, 162 U. S. 511.
There may be cases where the flight of a person to avoid arrest for a crime tends very strongly to show guilt or connection with the crime, and the weight to be given such circumstance is for the jury to determine. But their decision is subject to review by the court on a motion for new trial. Now, the evidence in this case shows, we think, that this defendant and those charged with him did not intend permanently to avoid arrest. They stated that they endeavored to avoid arrest at the time, for the reason that they could not give a bond, and did not wish to lie in jail until they could have a trial, but intended to surrender soon. The fact that they continued to remain in the neighborhood of their homes until arrested, although they could easily have left the state, seems to support this statement. Although this endeavor to avoid arrest was a circumstance against defendant calculated to arouse a suspicion that he was guilty, yet, taken in connection with the explanation given for it, we think it’hardly sufficient to justify the conviction, when standing alone without other circumstance to connect defendant with the crime.
The defendant may be guilty. A jury of his county have found that he is, and the circumstances are suspicious. But a consideration of the evidence has convinced a majority of the judges that it is too slight to support the verdict, and that it would be safer to submit the facts to another jury. We are therefore of the opinion that a new trial should have been granted. Judgment reversed, and cause remanded for a new trial. | [
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Smith, J.
This case involves an attack, both direct and collateral, on the decree of the Logan Chancery Court for the Northern District, which was affirmed by this court in the case styled American Bank & Trust Co. v. First National Bank of Paris, 184 Ark. 689, 43 S. W. (2d) 248.
The First National Bank brought suit to foreclose a mortgage executed by T. B. Harris and wife to it. The complaint alleged that the American Bank & Trust Company claimed an interest in the property covered by the mortgage, and asked that the last-named hank he made a party to the action and required to assert its interest, if any such it had. The American Bank & Trust Company filed an answer to the complaint of the First National Bank and a cross-complaint against Harris and wife, in which it was alleged that Harris and wife had executed to it a mortgage upon the same lands described in the mortgage to the plaintiff bank, and it was prayed that the foreclosure of this mortgage be decreed as prior and superior to that of the plaintiff bank.
Harris and wife did not answer either the complaint of the First National Bank or the cross-complaint of the American Bank & Trust Company, but the First National Bank did file an answer to this cross-complaint and insisted that the indebtedness of Harris and wife to the American Bank & Trust Company which was secured by the mortgage to the latter had been paid, and that therefore the mortgage held by the plaintiff bank was superior.
The trial court held that so much of the debt due by Harris and wife to the American Bank & Trust Company as was secured by the mortgage to that bank had been paid, and that therefore the mortgage of the First National Bank was not only a first lien, but was the only lien on the lands which were described in both mortgages. It was decreed, however, that Harris and wife were indebted to the American Bank & Trust Company, and a personal judgment was rendered for this debt, and the foreclosure of the mortgage to the First National Bank was decreed as the only lien upon the land. This was the decree affirmed by this court on the appeal, supra.
Harris died February 12, 1931, and at the time of his death had valid life insurance, which the insurer offers to pay. In the meantime, the American Bank & Trust Company had been taken over by the 'State Bank Commissioner as being insolvent, and its assets are being liquidated by that officer. Upon the death of Harris, the Bank Commissioner caused a writ of garnishment to issue upon the decree for debt rendered by the Logan Chancery Court against Harris, above referred to, in favor of the American Bank & Trust Company. Mrs. Harris had qualified as administratrix of the estate of her deceased husband, and, as such, she filed, on March 19, 1931, amotion to quash the garnishment, upon the ground that the judgment against her husband and herself was void, as having been rendered without service. On March 23,1931, Mrs. Harris filed a suit, in her own name and on behalf of the estate of her husband, in which she prayed that the' original decree of the Logan Chancery Court against herself and her husband be vacated and set aside, as having been rendered without service upon herself or her husband. This motion and the complaint appear to have been treated as a single pleading, and were heard and disposed of together.
The original complaint of the First National Bank was filed January 26, 1929, and the answer and cross-complaint of the American Bank & Trust Company against Harris and wife were filed March 7, 1929. According to the testimony of the clerk of the chancery court, no record in that office shows the issuance of service of any process on the cross-complaint, and Mrs. Harris testified that there was no service, and that she never knew that she and her husband had been made parties to the cross-complaint filed by the American Bank & Trust Company, and did not know until after the issuance of the writ of garnishment that any judgment had been rendered against her or her husband on this cross-complaint.
The original decree of the chancery court contained the following recital as to the service of process in the case: “This suit was brought by the plaintiff against the defendants on the 26th day of January, 1929, and summons were duly served upon all of the defendants in the month of January, 1929. The defendants, Thomas B. Harris and Sue Harris, although duly summoned, have wholly failed to answer, demur or to otherwise plead, and have wholly made default.”
In the complaint filed by Mrs. Harris, for herself and for the benefit of the estate of her husband, to vacate the judgment for debt in favor of the American Bank & Trust Company, it is alleged that the decree was rendered without service or knowledge of the existence of the suit, and that neither Mrs. Harris nor her husband were in fact indebted to the American Bank & Trust Company, and the plaintiff prays that she be permitted to make that showing. The court below granted the prayer of her complaint and vacated the decree, and this appeal is from that order.
For the affirmance of the decree here appealed from, it is insisted that the court was without jurisdiction to render the personal judgment against Harris and wife, for the reason that, under § 1204, Crawford & Moses’ Digest, and the general equity practice, a cross-complaint in favor of one defendant against another is only permitted where it affects the subject-matter in the original complaint, and it is insisted that the rendition of a personal judgment against Harris and wife in favor of the American Bank & Trust Company has no relation to a suit to foreclose a mortgage executed by Harris and wife to the plaintiff bank — the First National. So much of § 1204, Crawford & Moses’ Digest, which defines the practice in regard to filing cross-complaints, as is relevant here, reads as follows: “Section 1204. A defendant may file a cross-complaint against persons other than the plaintiff, and have proceedings thereon as follows: First. When a defendant has a cause of action against a co-defendant, or a person not a party to the action, and affecting the subject-matter of the action, he may make his answer a cross-complaint against the co-defendant or other person.” The second paragraph of this § 1204 provides for service of process upon cross-defendants.
We think this statute conferred authority for the cross-complaint filed by the American Bank & Trust Company against Harris and wife. This bank alleged that it had a mortgage lien upon the lands embraced in the mortgage to the First National Bank, and that its mortgage was superior thereto. The American Bank & Trust Company was therefore interested in the subject-matter of the original cause of action, and had the right to foreclose its mortgage by cross-complaint. Connelly v. Hoffman, 184 Ark. 497, 42 S. W. (2d) 985.
Having jurisdiction for the purpose of foreclosing these mortgages, after determining their priority, and having assumed that .jurisdiction, the chancery court determined the question of the priority of the mortgages, and, in the determination of that question, reached the conclusion that the debt remaining unpaid and due to the American Bank & Trust Company was not in fact secured by the mortgage, but, having also ascertained that some debt was due from Harris and wife, judgment was rendered for the amount thereof. This practice was entirely proper and conforms to the uniform holding that, where chancery takes jurisdiction in a case for one purpose, it'will retain the case and administer complete relief. Home Life Insurance Co. of N. Y. v. Masterson, 180 Ark. 170, 21 S. W. (2d) 414.
For the reversal of the decree of the court below, appellants cite cases holding that, in a collateral attack upon the judgment of a court of superior jurisdiction, every presumption must be indulged in favor of the jurisdiction of the court, unless it affirmatively appears from the record itself that the facts essential to the jurisdiction of the court do not exist. A late case to that effect, citing a number of earlier cases to the same effect, is that of Road Imp. Dist. No. 4 v. Ball, 170 Ark. 522, 281 S. W. 5.
The record in the instant case is not silent as to the service of summonses and the time thereof. The decree contains the affirmative recital that ‘ ‘ summons were duly served upon all of the defendants in the month of January, 1929,” whereas the cross-complaint was not filed until March 7, 1929, thereafter. So that we have the affirmative recital in the decree itself that the defendants, Harris and wife, were summoned before the cross-complaint against them was filed, and the presumption does not therefore arise which would he indulged in the absence of this recital that the court had, before rendering judgment for the debt, ascertained that it had acquired the jurisdiction so to do.
Under the facts stated, appellees contend that the decree in favor of the American Bank & Trust Company was properly vacated against both Mrs. Harris and the estate of her husband. But this relief cannot be granted, so far as the estate of Mr. Harris is concerned, for the reason that, whether served with process or not, he was apprised of the pendency of the cross-complaint before the decree was pronounced thereon. Weeds v. Quarles, 178 Ark. 1158, 13 S. W. (2d) 617. In our opinion, Mr. Harris must necessarily have been aware of the pen-dency of this cross-complaint and of the nature of the relief therein prayed for. There was never any question about the debt due the First National Bank, and that debt has not been questioned even yet. The question of fact in the case was, to what extent was Harris indebted to the American Bank & Trust Company, and how much, if any, of that debt was secured by the mortgage from Harris and wife to the American Bank & Trust Company? Harris was called as a witness on several different occasions, and was examined at great length upon this subject, and must necessarily have known the purpose of this testimony. It is not certain, however, that Mrs. Harris was also advised of this cross-complaint against herself and her husband. The testimony shows that during this time Mr. Harris was in failing health, and, while it is not contended that he was non compos, it does appear that he was unable to give his business affairs the required attention. It appears that Harris ’ debt to the American Bank & Trust Company was for money borrowed with which to pay for an interest in a business of Harris’ father-in-law, and on account of his failing health he resold the same interest to his father-in-law, and one of the principal questions of fact in the original case was whether the father-in-law had paid the bank this debt and the application to be made of the payments received by the bank from Harris and his father-in-law. Mrs. Harris testified unequivocally that she knew nothing about the cross-complaint, although she was advised of the original complaint; that she and her husband filed no answer to the original complaint because they had no defense, but that she would have made defense against the cross-complaint, had she known that there was a suit of this character pending against her.
Without further recital of the testimony, we announce our conclusion to be that Mrs. Harris was not in fact aware of this cross-complaint, and also that she was not served with any process which had issued thereon.
It follows therefore that the decree in favor of the estate of Mr. Harris is reversed, and the cause remanded with directions to enter a decree in accordance with this opinion. So much of the decree as affects Mrs. Harris personally is affirmed. | [
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Riddick, J.,
(after stating the facts.) ■ There are only two questions presented by this appeal. The first relates to the sufficiency of the affidavit showing the publication of the notice of the proceeding to confirm the tax title of Porter. It is said that this affidavit purports to have been made by the publisher of the paper, instead of by the editor or proprietor, as required by the statute. But the publication may have been proved in some other way than by the affidavit mentioned. The decree of confirmation recites a finding by the court that the petitioner had given due and legal notice of such proceeding, and, in the absence of any showing to the contrary in the record, we must presume that this finding was correct. Porter v. Dooley, 66 Ark. 1; Sand. & H. Dig., § 4685.
The other question is whether one seeking to confirm a tax title must show that he has made three regular payments of taxes after the period of redemption has expired. Porter purchased the land in controversy at a sale of land for delinquent taxes on the 9th day of June, 1890. The time for redemption expired on the 9th June, 1892. At the hearing of his petition for confirmation he exhibited tax receipts showing that he had paid taxes on the land for 1891, 1892 and 1893. These payments were made at the regular time of paying taxes for said years; that is to say, the taxes for 1891 were paid in 1892, the taxes for 1892 in 1893, and those for 1893 in 1894. It is contended that these payments were not sufficient to meet the requirements of the law. The statute provides that there shall be no “confirmation of the sale of lands unless the petitioner or his grantor or those under whom he claims title has paid the taxes on the lands for at least two years after the expiration of the right of redemption, said payment of taxes to be three consecutive years immediately prior to the application to confirm. * * * Copies of the tax receipt showing payment of the taxes for the three years next preceding the publication of the notice to confirm shall be filed with the petition.” Section 2, Act March 27, 1893 (Sand. & H. Dig., §§ 630, 632.) Now, an examination of sections 2 and 3 of the statute will disclose that it three times refers to the matter of these three consecutive payments which must be made before the filing of the application to confirm. The statute not only requires such payments to be made, but directs that copies of the tax receipts showing them shall be filed with the petition to confirm, and emphasizes this matter by expressly requiring that the tax receipts be exhibited to the court on the trial of the cause. It thus appears that this was considered to 'be a very important feature of the act, and it would seem that, if the legislature intended that these three payments should be .made after the expiration of the time of redemption, it would have expressly said so; but there is no such statement in the statute. The only requirement as to the number of payments to be made after that time is that the petitioner, or those under whom he holds, must have paid the taxes for at least two years after the expiration of the right of redemption. We take this to mean that there must be two regular annual payments of taxes made after the right of redemption has expired.
The words immediately following — “said payment of taxes to be three consecutive years immediately prior to the application to confirm” — tend, we admit, to support the contention of appellee, and cause some doubt in our minds as to the meaning of the act. But, after consideration of the whole statute, a majority of the court are of the opinion that the act requires only two regular payments of taxes to be made after the expiration of the right of redemption, and that the three consecutive payments mentioned may. consist of one before and two after the right to redeem has expired.
We are of the opinion that there is no error apparent upon the record, and the court erred in so holding. Judgment reversed, and cause remanded, with an order to dismiss the complaint for want of equity. | [
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Kirby, J.,
(after stating the facts.) Appellant insists that the United States Government has no lien and is not entitled to priority of payment of the funds paid to the guardian of the incompetent world war veteran by the Government under its laws and by him deposited in the failed bank. No claim was first made for priority of payment under the provisions of § 3466 of the Revised Statutes of the United States (31 U. S. Code, § 191), nor could any valid claim have been made thereunder. The facts are undisputed: the payments were made to the guardian of the veteran under the provisions of the statute, the funds were received for the ward by the guardian and by him deposited as such guardian in the failed bank, and such funds were on deposit in the amount of $2,078.68 on November 15, 1930, when the depository bank became insolvent.
Priority of payment of this fund is claimed under subdivision 3, § 1, act 107 of 1927, which reads:
“A prior creditor shall be: * * * (3) a prior creditor who is such by virtue of an act of Congress applicable to the said bank and as to the extent as provided by said act * *
The Federal statutes granting bonuses and veterans ’ relief (U. S. Code, title 38,, § 450) does not grant priority of payment to any such funds, and § 3466 of the Revised Statutes (31 U. S. Code, § 191) cannot apply in this case, because the American Exchange Trust Company, the failed bank, was not indebted to the United States on account of the deposit of the compensation money paid by the Grovernment to the guardian of the incompetent world war veteran and by him deposited in the failed bank.
Section 3466 of the Revised Statutes reads as follows: “Whenever any person indebted to the United States is insolvent, or whenever the estate of any deceased debtor, in the hands of the executors or administrators is insufficient to pay all the debts due from the deceased, the debts due to the United States shall be first satisfied and the priority established shall extend as well to cases in which a debtor, not having sufficient property to pay all his debts, makes a voluntary assignment thereof or in which the estate and effects of an absconding, concealed, or absent debtor are attached by process of law as to cases in which an act of bankruptcy is committed. ’ ’
In Wilson v. Sawyer, 177 Ark. 495, 6 S. W. (2d) 834, this court held that money paid to'a disabled soldier under guardianship by virtue of the World War Veteran’s Act (38 USCA § 421 et seq.) was not subject to garnishment whether in the hands of the soldier or his guardian; § 22 of the act providing that the compensation paid shall not he subject to the claims of creditors. 38 USCA, § 454.
Commenting on the declaration of the law made by the trial court therein, this court said:
“The court was correct in the declaration of law made except that the funds were not subject to seizure, even after they had come into the hands of the ward. ’ ’
It was further held therein that the funds involved were exempt from garnishment by the statute under which they were allowed and paid to the veteran. After stating the terms of the act and citing cases from other jurisdictions construing it, the court said: “The World War Veterans’ Act of 1924 contains substantially the same exemption from seizure as is found in the War Bisk Insurance Act, and the cases cited which construe the latter act are applicable here.” And further: “we think the manifest purpose of the legislation making provision for World War Veterans was to devote the benefactions there provided to the sole use of the beneficiaries, and that the same should not be subject to the .demands of creditors, even after the money came into their hands or was held by another for their benefit.”
These funds were paid over by the agency of the Government and had come into his hands, being delivered to his duly appointed guardian by whom they were held for his benefit. The guardian deposited said funds in the bank, and had drawn against the account along with the trust officer, who was required by the guardian’s bond to also sign the checks, and the title to the fund was in the ward, the guardian’s possession being the possession of the ward. 28 C. J. page 1128, and 12 R. O. L. page 1123.
The government may attach restrictions on its bounty to disabled veterans, has the power to prescribe when, how and to whom such paymexlt shall be made. It can also punish embezzlement or conversion of funds by those in a fiduciary capacity, and it may even withhold or suspend payment thereof, but when it has made payment to the beneficiary or to a duly appointed guardian, or other person authorized to receive same, the funds so paid lose their character as government funds, and the bank in which they are deposited by the guardian does not become indebted to the United States within the meaning of said § 3466 of the Revised Statutes, entitling the United States to priority of payment thereunder, and, neither the government nor the recipient of its bounty being a prior creditor by virtue of any act of Congress applicable to the bank, no priority of payment of such funds is provided under subdivision 3, § 1, of act 307 of 1927.
It follows that the court erred in decreeing otherwise, and the decree is accordingly reversed, and the cause remanded with directions to allow the claim as a common claim | [
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Hart, J.
Edward Suhs brought separate suits against the Homewood' Eice Land Syndicate and Henry Gottsehalk and Henry Moeker to recover amounts alleged to be due him for raising rice crops on the land of the defendants.
Henry Gottsehalk and Henry Moeker lived at Home-wood, Illinois, and owned a tract of land in Prairie County, Arkansas, comprising one hundred and sixty acres. They organized a corporation called the Home-wood Eice Land Syndicate, which was located at Home-wood, Illinois, and this corporation owned a one-half section of land in Prairie County, Arkansas. Gottsehalk and Moeker entered into a written contract with Edward Suhs to raise one hundred and forty acres of rice for them on their land in Prairie County, Arkansas.
The Homewood Rice Land Syndicate Company also made a contract with him to cultivate three hundred acres of rice on their lands in Prairie County during 1912'. Suhs came to Arkansas pursuant to the contract and raised a rice crop for the corporation and for Moeker and Gottschalk during the year 1912. By agreement of the parties the terms of both these written contracts were extended to cover the year 1913. Under the terms of the contractSuhs remained on the lands and put into cultivation and gathered a rice crop during the year 1913. Moeker and G-ottsclialk and.the Homewood Rice Land Syndicate Company paid him part of the money stipulated in the contract for raising the rice but refused payment of the balance on the ground that he had not complied with his contract in that he had not put in all the land, had not properly irrigated the land and cultivated it in the manner provided for in the contract and had not gathered all' the rice which had been grown. As above stated, he brought separate suits to recover the amounts alleged to be due him under the contract for growing and gathering the rice crop. Each defendant filed an answer setting up a counterclaim on account of the failure of the plaintiff to carry out the terms of his contract as above stated,- and each defendant also filed a set-off, which will be more particularly stated hereafter. Over the objection of the plaintiff, the court transferred the cases to the chancery court. The plaintiff saved his exceptions thereto. When the cases were transferred to the chancery court the plaintiff moved to transfer them back to the circuit court/ The court overruled his motion and he saved his excep-1 tions thereto. Testimony was taken by the plaintiff to: establish his cause of action and testimony was taken by each defendant to establish the counterclaim filed in the action. The amount of land which the plaintiff agreed to plant and cultivate in rice for the Homewood Rice Land Syndicate was three hundred acres-. He sued that1 corporation for the sum of $1,500 for the amount alleged; to be due him. The defendant put in a counterclaim for the sum of $5,625, and asked that it be allowed a set-off in the sum of $163.35. The defendant also filed a cross-, complaint. An attachment had been issued and levied* by the plaintiff on the lands of the corporation on which the rice was grown. The court found that there was no equity in either the plaintiff’s complaint or the defendant’s cross-complaint and decreed that both should be dismissed for want of equity and that the writ of attachment issued and levied on the land of the defendant' should be dissolved.
Suhs sued Gottschalk and Moeker for $1,550. Under the contract he was to raise one hundred and forty acres of rice for them. They filed an answer and counterclaim and also a cross-complaint. They asked that $9,725 be allowed as a counterclaim and that $170 be allowed as a set-off.
The plaintiff introduced testimony tending to maintain his cause of action and the defendants introduced testimony tending to support their counterclaim and set-off. An attachment was also issued and levied upon the lands of the defendants upon which the rice was grown.
The chancellor found that the plaintiff’s complain^ should be dismissed for want of equity and the writ of attachment should be dissolved. The chancellor further found that the defendants were entitled to recover from the plaintiff the sum of $3,400 by way of counterclaim, and that plaintiff is indebted to defendants in that sum as damages for breach of contract, and decree was rendered accordingly. The plaintiff has appealed from both decrees.
In the case of Suhs against the Homewood Rice Land Syndicate the defendant alleges that a quantity of what is called “cracked rice” of the value of $163.35 accumulated on the place in the fall of 1913, and pleads this as an equitable set-off to the demand of the plaintiff.
In the case of Suhs against Gottschalk and Moeker, the contract provided that the defendants were to furnish a thresher to thresh the rice; that the plaintiff used this thresher to thresh the rice of other parties and received therefor the sum of $170 which is pleaded as an equitable set-off to the demand of the plaintiff. It is sought to uphold the decree in each case on the ground that the plaintiff was a nonresident and that the set-off pleaded as above stated gave the chancery court jurisdiction.
(1) The plaintiff resided in the State of Illinois and came to the State of Arkansas to raise a rice crop for the defendants in each case under the contracts above set forth in 1912. The terms of the contract were also extended for the year 1913. The plaintiff remained here, and grew a rice crop for the defendants for the year 1913. He was here when he brought his action against the defendants but soon moved back to Illinois to again become a resident of that State. Both the defendants are nonresidents of this State. The defendants seek to uphold the jurisdiction of the chancery court on the authority of Ewing-Merkel Electric Co. v. Lewisville Light & Water Co., 92 Ark. 594. In that case the court held that in a suit upon contract by a nonresident against a resident of this State, the defendant will be allowed in equity to set-off a claim for unliquidated damages growing out of the breach of an independent contract between the parties. In that case the court recognized that as to a set-off equity generally follows the law and will only extend the doctrine of set-off and claims in the nature of set-off beyond the' law in cases where peculiar equities intervene between the parties. Unliquidated damages arising from a breach of contract or from a tort are not the subject of set-off at law. Stewart v. Scott, 54 Ark. 187. They may be set off in equity only where peculiar equities intervene between, the parties. The non-residence of the plaintiff was recognized in the case last cited as a ground in equity for permitting a resident defendant to plead in set-off of the plaintiff’s demand his claim for unliquidated damages. The decision in that case was not wholly based on the fact of the plaintiff being a nonresident, but the fact that the defendant was a resident was of equal force. In an action at law on contract, the defendant can not plead as a set-off his claim for unliquidated damages, and for this reason his failure to do so would not affect his right to bring an; independent action at law against the plaintiff on his claim against the latter. Where the plaintiff is a nonresident, service of process in an independent action can not be had within the jurisdiction in which he is attempting to enforce his demand against a resident of this State, and it would be inequitable to allow him to enforce his demand and deny relief to a resident defendant in the same action. Here the defendants were non-residents. In the one case, the defendant was a non-resident corporation and in the other the defendants were non-resident persons. Hence there was an entire absence of equitable jurisdiction and the circuit court erred in transferring the cases to the chancery court. First National Bank of Lake Providence v. Reinman, 93 Ark. 376.
(2) The plaintiff made objections to the transfer- and properly saved his exceptions to the orders of the court in transferring the case to equity. He then moved the chancery court to transfer the case back to the circuit court, and upon its refusal to do so saved his exceptions thereto. This brings us to the question of whether or not he was prejudiced by the action of the court; for it is well settled in this State that the judgment of the lower court will only be reversed for errors prejudicial to the rights of the party appealing.
It appears from the record that the plaintiff brought this suit to recover an amount alleged to be due him under a written contract with the defendants to raise a crop of rice on their lands. According to the testimony introduced by the plaintiff he in all respects complied with his contract and was entitled to recover from each of the defendants.
According to the testimony introduced by the defendants in each case, the plaintiff had failed to comply with the provisions of-his written contract with them and they were entitled to recover against him on their counter claims. Inasmuch as there were no grounds for the assertion of any right by the defendants in a court of equity, the plaintiff had a right to have the issues of fact raised by the pleadings and the testimony submitted to a jury.
It follows that the court erred in transferring the cases to the chancery court, and for that error the decree! in each case will be .reversed and the cause remanded with directions to transfer the cases back to the circuit court and for further proceedings according to law.
It is so ordered. | [
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Wood, J.,
(after stating the facts). This proceeding was begun in the county court under the authority of the act of April 1, 1895, Act 66, page 82, which provides: “Section 1. The county courts of this State shall have power to dissolve any school district now established, or which may hereafter be established in its county, and attach the territory thereof in whole or in part to an adjoining district or districts, whenever a majority of the electors residing in such district shall petition the court so to do. ’ ’ Section 2 provides for notice to be given. Section 3 provides: “ Whenever, under this act, any district shall be abolished, any indebtedness due by it or funds on hand to its credit shall be proportioned by the court among the districts to which its territory has been attached, according to the value of the territory each received, of which action of dissolution and distribution of indebtedness or funds, as the case may be, the clerk of the court shall give due notice to directors of each district affected, showing the territory attached to their district, and amount of indebtedness adjudged against it, or funds credited to it, as the case may be. ’ ’
(1) As already set forth in the statement, in the recent case of Hughes v. Robuck, 119 Ark. 592, we held that under this statute county courts had jurisdiction to dissolve special school districts, as well as common school districts.
It appears from the recitals in the judgment that the intervention was presented on the day and at the time when the court took up the matter for final hearing. The recitals also show that at the same time there was a motion to strike and a demurrer filed to the intervention, which the court sustained. The judgment further recites that “all indebtedness due by Special School District H and all funds on hand held by it be proportioned between said District No. 1 and said District No. 39 in proportion to the value of the territory received by said common school districts,” and the clerk of the county court was directed to give.due notice to the directors of each of the districts affected by the judgment of the territory attached to their respective districts.
Appellant Speer contends that the allegations set forth in his intervention, which the court disposed of’ on demurrer and motion to strike, were sufficient to show that he was the owner of valid and subsisting obligations of the district amounting in principal and interest to the full time of maturity, in excess of $14,000, and that these allegations were conceded by the demurrer and motion, and that therefore the court, on these facts, had no power to dissolve the district. The ground of his protest goes to the power and jurisdiction of the county court to render a judgment dissolving the district rather than to any error in the judgment of the court as to the apportionment of the indebtedness of the district. He argues that the Legislature did not intend to confer upon county courts the jurisdiction to dissolve special school districts because a dissolution of such districts would have the effect to impair the obligations of its valid subsisting contracts, and that the act, when thus construed, is unconsti tutional and void. This court held otherwise in Hughes v. Robuck, supra, and it adheres to that decision.
In the above case we recognized the doctrine that special school districts could not be dissolved if such dissolution had the effect to impair the obligations of their contracts. We there say that “the legislative control over the creation and boundaries of school districts is plenary, subject only, however, to the limitation that such action shall not impair the contracts or obligations of such districts. ’ ’
But in the judgment dissolving the district the court adjudged that all indebtedness due by the special school district and all' funds on hand by it be proportioned between District No. 1 and District No. 39 in proportion to the value of the territory received by each of said common school districts. Moreover, in Special School Dist. No. 2 v. Special School Dist. of Texarkana, 111 Ark. 379, we held that, “the Legislature has unrestricted power over the formation of school districts, and the making of boundaries thereof; and legislation on the subject is not affected by a failure to adjust the equities between the old and new districts.”
•Now learned counsel for appellant Speer concedes in his brief that the amount received from the bonds, towit, the sum of $8,500, “is now in the hands of the district and under the control and management of the board of directors.” While Speer alleged "that some of the interest on the bonds was then past due and unpaid, he does not anywhere specifically allege what the amount of that interest is, and in response to the motion to make his complaint more definite and certain, he alleges that he did not know the names of the owners, or the amounts and numbers of the bonds that were held by other owners, nor could he state how many of the bonds were sold and how many unsold. In the prayer of his complaint he does not ask for judgment for the $8,500 with accrued interest thereon up to the date of the judgment dissolving the district, but he only prays that the petition for dissolving the district be dismissed and that the district be not dissolved.
(2) If upon the order of the county court dissolving the district, the $8,500 that had been furnished the district had been returned to the owners, with interest that had accrued thereon, this would be all that the district was obligated to pay. Speer and the bondholders contracted with the district with reference to the laws of the State, and they must be held to have known, if we are correct in our construction of the act of April 1,1895, that such districts could be dissolved by the county court, and that such dissolution would necessarily have the effect to destroy any executory contracts of the district. When the district was dissolved, ipso facto its outstanding bonds became due, and there was no obligation upon the district to pay more than the face of such bonds with the interest that had accrued at the date of the order dissolving the district. There are no allegations in Speer’s intervention asking that this be done or alleging facts showing that such relief would have been impracticable.
(3) Moreover, as we have already seen, the court adjudged that all indebtedness due by the Special School District IT and all funds on hand by it be proportioned betweeh District No. 1 and District No. 39. If these districts, Nos. 1 and 39, were adjoining districts to District IT, which was dissolved, then the judgment of the court not only did not impair the obligations of the contracts of District H, but, on the contrary, expressly recognized these obligations and provided for their payment by Districts Nos. 1 and 39 in proportion to the value of the territory received by each of said common school districts.
It was not an abuse of discretion or an error for which a judgment of the court dissolving the district should be reversed because it did not undertake to ascertain and fix the amount of the obligations then outstanding against Special District H and adjudge the proportional sums of the indebtedness that the adjoining common school districts should pay. That is a matter that could be ascertained and worked out in the future. The only limitation upon the power of the court to dissolve the district 'is that it “shall not impair the contracts or obligations of such district. ’ ’
The county court was correct in treating the intervention of Speer as a protest against the jurisdiction of the court to dissolve District H, and did not err, from this viewpoint, in holding that Speer was not a proper party and in sustaining the demurrer to his intervention.
While the intervention alleges that the order of the county court is illegal and void because the same is not in compliance with the statutes of the State of Arkansas, and is illegal and void because no notice of the petition to dissolve was given as required by law, this allegation is not argued in the brief, and therefore is treated as abandoned.
II. The other appellants who joined in the intervention and remonstrance with Speer against the dissolution of the district contend that the county court abused its discretion and erred in apportioning the territory that was embraced in the district before it was dissolved. District No. H was formed by taking all the territory of Common District No. 39 and a part of the territory embraced within Common District No. 1, and in the order dissolving the district the county court restored to Common District No. 1 that part of the territory taken from it and the remainder of the territory it transferred to Common District No. 39, and also Common District No. 1.
This court held, in Hughes v. Robuck, supra, that the statute does not require that the petition for dissolution shall state the disposition to be made of the territory of the dissolved district, in order to give the county court jurisdiction of the subject matter. But we did not hold that the court could exercise its jurisdiction to dissolve in any other manner than that required by the statute.
(4) Appellants further contend that the court, after having acquired jurisdiction of the subject matter, must proceed in the exercise of that jurisdiction according to the requirements of the statute, and that its failure to do so is error for which the judgment must be reversed. Now when all of the territory of Common School District No. 39 was taken in the creation of District H, Common School District No. 39 went out of existence and was no longer a common school district.
The statute authorizing the county court to dissolve any school district requires that the territory that constituted such special school district be attached “in whole or in part to an adjoining district or districts.”
(5) In the opinion of a majority of the court, when the county court, and the circuit court on appeal, entered an order dissolving District H, it could not attach in whole or in part the territory of District H to Common District No. 39, for at the time of the order of dissolution there was no Common District No. 39. Having passed out of existence in the creation of Special District H, it could not be re-established in proceedings for the dissolution of District H. Having once been absorbed in the special district, and therefore abolished as a common district, in order for the same territory to be re-established into a common district numbered 39, it will be necessary for a majority of the electors residing upon the territory constituting the district to be formed, to petition for such district. Act of April 8,1887, Kirby’s Digest, § 7544.
Common School District No. 39, having been abolished in the order creating District H, a new common school district composed of the same territory could not be re-established under the statute without such petition. A petition of a majority of the electors residing in District H for the dissolution of that district might not constitute a majority of the electors residing in the territory that formerly constituted Common School District No. 39. The petition for the dissolution of a district is entirely different from one to create a district. The power to dissolve a special district and to attach the territory thereof, in whole or in part, to adjoining districts did not include also authority to establish new common school districts without auy petition therefor signed by a majority of the electors residing upon the territory to be included in such new district.
Now the effect of the order of dissolution was to reestablish a new Common School District No. 39, composed of all the territory embraced in the old District No. 39 and to add to the new District No. 39 other territory, without any petition asking that same be done, and the effect of the order, as shown by the boundaries of the new District No. 39 as created without a petition shows that it is composed of noncontiguous territory. In other words, a narrow strip of the territory of District No. 1 lies between and separates District No. 39 into two parts.
Five of the six directors of Special District H filed what is designated their intervention or remonstrance, setting up that “the order and proceedings are void for the reason that there is no authority conferred on the county court, under the petitions filed therein, to create a new school district, and that the order of the court is therefore void and without legal effect.”
It is also urged that there was no competent evidence to show that the petition for dissolution contained the requisite majority of electors. Inasmuch as the cause must be reversed and remanded for the error indicated, we deem it unnecessary to dispose of this issue, for if the proof was not made by competent evidence it is a matter that can be easily correctéd by a production of the record showing the number of .electors residing on the territory of the special school district on a new trial.
The court erred in dissolving the District H without attaching the territory thereof to adjoining districts, and since there was no common school district No. 39 it necessarily follows that the court also erred in not apportioning the indebtedness of District H as required by the statute, and for these errors the judgment is reversed and the cause remanded for a new trial.
Smith, J., concurs in the judgment. | [
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Humphreys, J.
Appellees brought ejectment in the Phillips County Circuit Court on the 30th day of August, 1915, against appellant, to recover possession of the following described real' estate in the county of Phillips and State of Arkansas, towit:
Begin 2.64 chains west of southeast comer of section 27, township 3 south, range 3 east, Phillips County, Arkansas; thence south 89% degrees west, 31.05 chains; thence north 50 degrees west, 3.42 chains; thence north 71% degrees east, 4.79 chains; thence south 87% degrees east, 4.18 chains; thence south 70 degrees east, 4.91 chains; thence north 54% degrees east, 2.51 chains; thence north 1% degrees east, 4.40 chains; thence north 12% degrees east, 3.49 chains; thence north 8% degrees east, 4.08 chains; thence south 84% degrees east, 1.10 chains; thence south 57% degrees east, 5.41 chains; thence south 54% degrees east, 3.93 chains; thence south 57% degrees east, 4.51 chains; thence south 47% degrees east, 4.44 chains; thence south 51 degrees east, 2.59 chains; thence south 22% degrees west, 2.96 chains to place of beginning, enclosing 22.98 acres in south part of southeast quarter of section 27, 3 south, 3 east, which is a part of the south half, southeast quarter of section 27, township 3 south, range 3 east.
The case was tried upon the complaint, answer and amendment to the answer, and an agreed statement of facts. The trial judge, sitting as a jury, found for ap pellee and rendered judgment accordingly. From that judgment this appeal is prosecuted.
Appellees are the record owners of the said real estate, subject to the dower of Rebecca T. Williams. This entire tract was assigned to her in 1880 as a part of her dower interest in the lands of her husband, who died on the ..................day of November, 1879. The appellee, John Hayden, entered into possession of said lands in 1896, and has held such possession continuously since that time. On the..................day of October, .1913, Rebecca T. Williams died. The possession of appellee from the time he went into possession down- to the time of Rebecca T. Williams’ death was adverse to the possession of said Rebecca T. Williams. His possession during all this time was actual, exclusive, peaceable, adverse, continuous, hostile, open and notorious, but appellees nor any one in the chain of their title had knowledge that appellant was in possession, claiming title thereto, and appellees had paid taxes thereon for more than thirty years. The rental value of the land for the years 1914 and 1915 was $200.
It is contended by appellant that the statute of limitations began- to run against appellees when appellant took possession of said lands in 1896. Appellees contend that the statute of limitations did not begin to run against them until the death of the life tenant, Rebecca T. Williams.
Section 5056 of Kirby’s Digest prohibits any one from maintaining a suit for the recovery of lands seven years after the right of action accrued, with a saving clause in favor of infants, femme coverts, and persons non compos mentis.
Appellees are remaindermen, hence the only question presented to this court for determination by this appeal is, When does the right of action to recover possession of lands accrue to reversioners and remaindermen?
The general rule that the right to bring suit accrues to remaindermen upon the death of the life tenant is conceded by learned counsel for appellant, but they insist that this case comes within an exception to the general rule, that the remainderman’s cause of action accrues before the death of the life tenant if he is expressly authorized by statute tp bring suit during the period of life-tenancy. In support of such right in remaindermen, section 2745 of Kirby’s Digest is cited. The section is as follows:
‘ ‘ To entitle the plaintiff to recover, it shall be sufficient for him to show that at the time of the commencement of the action the defendant was in possession of the premises claimed, and that the plaintiff had title thereto, or had the right to the possession thereof.”
The statute referred to is not a statute of limitations. It is a practice act, and has reference to the sufficiency of the evidence in the trial of causes. Even if it were a statute of limitations, it could have reference only to present and not postponed titles.
(1) This court has held in a long line of cases that the right of entry, and therefore the right of action, does not accrue to the remainderman or reversioner, until the death of the owner of the particular estate. Banks et al. v. Green et al., 35 Ark. 84; Kessinger v. Wilson, 53 Ark. 400; Moore v. Childress, 58 Ark. 510; Ogden v. Ogden, 60 Ark. 70; Gallagher v. Johnson, 65 Ark. 90; Morrow v. James, 69 Ark. 539; Watson v. Hardin, 97 Ark. 33; Martin v. Conner, 115 Ark. 359; Rogers v. Ogburn, 116 Ark. 233; LeSieur v. Spikes, 117 Ark. 366; Neely v. Martin, 126 Ark. 1.
It is true, as argued by counsel, that in many of these cases, the claimant, through adverse holding, had obtained possession by contract with the life tenant. The principle, however, is the same. It is based on the same reasoning, that is to say, the remainderman or reversioner has a right to attribute the holding to some character of contract with the life tenant. Until the death of the life tenant, no duty in law is imposed on a remainderman to inquire from the party in possession whether he is a disseisor. During the life tenancy he has a right to treat the occupant of the land as a licensee. In the instant case, it is conceded that appellees did not know the appellant was in possession of the real estate.
It is contended that the rule has been abridged by this court in the cases of Crowder v. Fordyce Lumber Co., 93 Ark. 392, and King v. Booth, 94 Ark. 306. Not so, for those were cases clearly within a well known exception to the rule. They involve the question of injury and damage to the reversionary or remainder interest in the real estate or to the freehold. The remainderman or reversioner in those cases was directly and necessarily injured in his estate for which he was entitled to immediate compensation.
(2) Our attention has been called to the cases of Fletcher v. Josephs, 105 Ark. 646, and Brinkley v. Taylor, 111 Ark. 305, as cases.favorable to the contention that the remainderman’s right of action against one in possession claiming title may accrue before the death of the life tenant. These are dissimilar cases from the instant case, because they deal with unassigned dower interest in lands. Until dowej is assigned, the heirs have a right to possession and a right to maintain an action therefor. Unassigned dower is only an inchoate right in real estate, or, as was aptly said in Fletcher v. Josephs, supra, “a mere thing in action.” The doweress or life tenant can not maintain a suit in ejectment against a third party claiming possession of real estate until dower is assigned, hence the possession can be protected by a remainderman alone, and the remainderman being entitled to the immediate possession, the statute of limitations would begin to run against him.
In the instant case, appellant did not take possession until after dower in the land in question had been assigned to Rebecca T. Williams.
No error appearing in the record, the judgment is affirmed. | [
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Hart, J.,
(after stating the facts). (1) It is first contended by counsel for appellant that under section 733 of Kirby’s Digest the deed from H. L. Dearing, Jr., conveyed to Minnie I. Dearing a fee simple title in the acre of land in El Dorado involved in this suit. The granting clause in the deed was to Minnie I. Dearing and the habendum clause,was “to the said Minnie I. Dearing and her heirs by me of her body born or that may be hereafter to us born, in fee simple forever.” They claim that the granting clause is to Mrs. Dearing and that there are no appropriate words limiting her estate and that therefore she acquired a fee simple title under the deed. They rely on the case of Hardage v. Stroope, 58 Ark. 303, as being conclusive of their contention. We do not think that case sustains their contention. The clause upon which the rights of the parties in that case hinge is as follows:
‘ ‘ To have and to hold the said land unto the said Tennessee M. Carroll for and during her natural life, and then to the heirs of her body, in fee simple; and if at her death there are no heirs of her body to take the said land, then and in that case to be divided and distributed according to the laws of descent and distribution in this State. ’ ’ There the limitation was to the heirs generally and Tennessee M. Carroll acquired a fee simple title.
(2) In the present case the effect of the clause in •the deed was not to create a limitation-to the heirs of Minnie I. Dearing in general, but the limitation was to the heirs of her body and she took a life estate. The office of the habendum clause of a deed is to expláin or define the extent of the grant, and is rejected only where there is a clear and irreconcilable repugnancy between the granting and habendum clauses in the deed.
In the construction of deeds it is the duty of a court to harmonize the different parts so as to give effect, if possible, to each part. The language of the clause of the deed in question does not bring it within the rule in Shelley’s case, so as to convey an estate in fee simple to Minnie I. Dearing, subsequently Minnie I. McNalley. In conformity to the rule of construction in McDill v. Meyer, 94 Ark. 615, she took only an estate for life.
It is contended that the words “in fee simple forever” in the habendum clause enlarges the estate to a fee simple in Minnie I. Dearing. We do not think the habendum clause in the present deed enlarges the granting clause, but that the words “in fee simple forever” mean that the heirs of the body of the life tenant take the remainder in fee simple. This is the construction put upon a similar clause in the case of Dempsey v. Davis, 98 Ark. 570.
(3) Thus it will he seen that under the deed of Harry L. Dearing, Jr., to the land involved in this suit, Minnie I. Dearing, afterward Minnie I. McNalley, took a life estate, and their children, Harry L. Dearing, Annie Grace and Irene Garrett, took the remainder in fee simple. Minnie I. Dearing could only mortgage her interest in the land to appellant. At her death the mortgage ceased to be in force, and appellant only had a claim against her estate.
(4-5) An administrator of her estate was appointed on February 15, 1913, and appellant did not probate its claim against her estate within one year after the appointment of her administrator. Hence appellant’s claim against her estate is barred by the statute of nonclaim. At the death of Minnie I. McNalley a fee simple estate in the mortgage premises vested in her three children above named. There was no contractual or other relation between them and appellant. They conveyed the land' by deed to other parties, and in the deed it was recited that th,e grantee would assume a certain part of the mortgage to appellant. There was no contractual relation between their grantees and appellant, the beneficiary of the promise, and no consideration moved from appellant either directly or indirectly to the promisors. The rule in this State is that a stranger to a contract between others in which one of the parties promises to do something for the benefit of such stranger, there being nothing but the promise (no consideration from the stranger, and no duty or obligation to him on the part of the promisee), can not recover thereon. Thomas Mfg. Co. v. Prather, 65 Ark. 27; Little Rock Ry. & Elec. Co. v. Dowell, 101 Ark. 223; Kramer v. Gardner, 104 (Minn.) 370, 22 L. R. A. (N. S.) 492, and case note, and Fry v. Ausman (S. D.), 39 L. R. A. (N. S.), 150.
It follows that there was no liability on the part of the defendants and the mortgage was not a lien on their interest in the land. The chancellor was right in dismissing the hill of appellant for want of equity, and the decree will he affirmed. | [
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Smith, J.
The north half of the northwest quarter of the northeast quarter of section 8, township 18 south, range 15 west, in Union County, Arkansas, was sold in June, T925, for the nonpayment of the taxes assessed against it for the year 1924. Prior to the assessment of the land for the 1924 taxes, there had been a severance of both the timber and the mineral rights, -which latter had not been separately assessed, and the validity of the tax sale for any purpose was attacked on that account.
The owners of the separate interests in the land joined in a suit to cancel the tax sale and deed thereunder, and, from a decree awarding that relief, an appeal was prosecuted to this court. Upon the' submission of the ease in this court, it was held that, where there had been a severance of the timber or the mineral rights by duly recorded deed, it was necessary for the timber or mineral rights to be assessed separately and apart from the surface of the land, and that where this was not done the assessment applied only to the surface, and a sale for the taxes so assessed did not operate to convey the timber or the minerals. Huffman v. Henderson Co., 184 Ark. 278, 42 S. W. (2d) 221.
After the rendition of this opinion, a petition was filed in the court from which the appeal had come for a writ of possession to place the present owners of the tax title in possession, and from a decree refusing to award that relief is the present appeal.
The testimony heard at the trial from which this appeal comes developed the following facts, as we find them to be: The Henderson Company, hereinafter referred to as the company, an Oklahoma corporation authorized to do business in this State, has extensive interests, in the State in the operation of which the twenty-acre tract of land above-described plays an important part. Oil has been produced from this land since 1921, and in 1922 appellee constructed an extensive casing-head gas plant thereon, which has been, and is now used in the manufacture of gasoline from the production from said land and other lands in Union County. The company also built upon the land an office and a residence for the use of its managing officer in this State.
In 1923 J. 0. Huffman, who was then employed by the company in another State, was transferred to this State, and occupied, with his family, the residence above referred to as the general superintendent and the highest representative in authority of the company in the State. It was a part of Huffman’s duties as general agent to assess the company’s holdings in this State, and to pay the taxes thereon by drawing drafts upon the company at its home office. It was Huffman’s duty to have assessed and paid the taxes for the year 1924, and for which the land sold in 1925.
Huffman did not discover that this very valuable twenty-acre tract of land had been sold -for taxes until July or August, 1930, and he then notified the home office of the company of that fact. He was advised by the company to take the matter up with the company’s local attorneys in this State, and to take such action as was necessary to clear the company’s title. He consulted the attorneys, who asked that an abstract of the title be brought down to date, and this was done. Several conferences were held between the attorneys and Huffman with a view of obtaining a deed to the company from the tax purchaser, and Huffman was entrusted with these negotiations. The original tax purchaser had died, but Huffman interviewed one of the heirs of the purchaser, who represented himself and the other heirs, and they offered to accept $2,500, and Huffman submitted a counter-proposition of $500. Huffman was advised by the company’s attorneys that it was not necessary to bring suit, as the company was in possession and would acquire the tax purchaser’s title by possession if no action was taken by the heirs of the tax purchaser before the statute of limitations had run.
While these negotiations were pending the company decided to dispense with Huffman’s services, and on September 30th wrote him to that effect. This letter advised Huffman, however, that his resignation would not be effective until November 30th, and that his salary of $450' per month would be continued until that time. He was asked to turn over all records and company property to his successor, and this he did on .October 1, 1930. On October 2, Huffman employed an attorney to buy the land. On the following day a deed was made to this attorney for a consideration of $1,000 cash in hand paid. Huffman’s wife furnished the thousand dollars, and the attorney later deeded to her an undivided half interest, retaining title to the other half interest for his services.
The court below decreed that the attorney and Mrs. Huffman had acquired title to the land in trust for the company, and directed that a conveyance of the land he made to the company upon payment of the purchase price, and this appeal is from that decree.
The instructions given Huffman by the company to recover the property for it were never withdrawn, yet he never advised the company that a quitclaim deed could be obtained for only $500 more than the company had offered. To the contrary, on the day after he was discharged, and while still in the pay of the company, he arranged to buy this land for $1,500 less than the sum for which he had reported to the company that it could be purchased.
Opposing counsel have cited many cases declaring the duty of an agent to his principal, a number of these being decisions of this court. We do not review these cases, as the law of the subject is well settled. The third headnote to the case of Kelly v. Keith, 77 Ark. 31, 90 S. W. 150, declares the law applicable to this case, and reads as follows: “Where an agent undertook to purchase land for her principal for $300, and found that it could not be purchased for less than $350, which she paid without notifying her principal or giving him an opportunity either to accept or to reject the land at that price, she will be held, at his election, to have purchased for him in performance of her agreement.”
Section 206 of Perry on Trusts and Trustees, vol. 1 (7th ed.), appearing in the chapter on constructive trusts, deals with the conditions under which an agent, attempting to act for himself, is yet held to be a trustee for his principal, and this statement of law there appearing is peculiarly applicable to the facts of this case: “An agent cannot take advantage of his own negligence; as where one allowed his principal’s property to be sold for taxes and bought it himself, he was held as a trustee, although the relation of principal and agent had ceased.”
The decree of the court below appears to be correct, and it is therefore affirmed. | [
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McHaney, J.
November 16,1931, appellant issued to Turner Madden, colored, a policy of life insurance in tbe sum of $375, in which appellee, cousin of the insured, was named beneficiary. Madden died January 30, 1932, with all premiums paid. Thereafter, in apt time, proof of death was made and payment demanded, which was refused, and this suit followed. Appellant defended on two grounds, first, that the deceased was not the insured; and, second, that, if he were, he was afflicted with tuberculosis, and was not in sound health at the date of the policy, in violation of one of its express provisions. A trial resulted in a verdict and judgment against appellant in the sum sued for, and the court allowed an attorney’s fee of $100 for appellee’s attorney, without hearing testimony, and in the absence of attorneys for appellant.
Only a question of fact is presented by this appeal as to appellant’s liability, the question of the identity of the insured being waived or abandoned. Did the insured have tuberculosis, or was he. otherwise not in sound health at the date of the policy, no medical examination being required? The court submitted these questions to the jury at appellant’s request in instruction No. 2, and also the identity of the insured in instruction No. 4. The jury has decided by its verdict all questions of fact against appellant. On appeal this court will not reverse on the insufficiency of the evidence if there is any substantial evidence to support the verdict, and, in determining this question, we must view the evidence in the light most favorable to the appellee, giving it its strongest probative value. When so considered, we find the evidence amply sufficient and of a very substantial nature to show that at the date of the policy the insured was in sound health. In addition to the testimony of the widow, a number of friends and acquaintances, and the appellee, the agent who took the application of the insured, recommended the applicant for insurance, and in Ms testimony at the trial stated: “He was as fine a looking specimen as I ever saw, he was a man about 25 or 26 years old and would weigh about.140 or 150 pounds and about 5 feet 6 or 7 inches.” In addition he testified: “Q. Tell the jury whether or not he was in good sound health when he got this policy? A. Yes, sir, he was in good health. ’ ’ In addition to all this, Dr. Rogers, who attended him in his last illness, testified that he found no symptoms of tuberculosis, but that he died of pneumonia. Contradictory of all this is the testimony of Dr. Butts, that the insured was brought to his office by Mr. Tappan in September, 1931, and that he found him suffering with tuberculosis in the advanced stage. Appellant insists that Dr. Butt’s testimony is undisputed that the insured had tuberculosis at the date of the policy, in violation of its provisions, and that therefore the court should have directed a verdict for it. While Dr. Rogers’ testimony was of a negative character as to whether Madden had tuberculosis, he testified positively that he died of pneumonia. This evidence alone was sufficient to make a question of fact for the jury, and, while the lay-witnesses were not asked as to whether he was so afflicted, a number of them testified to his good health, and, of course, if he were in good health at the date of the policy, he was not in the advanced stage of tuberculosis. The court did not err therefore in refusing to direct a verdict for appellant at its request.
As to the allowance of $100 attorney’s fee, we cannot agree with appellant that it is excessive, or that the court erred in so doing without hearing' evidence in the absence of counsel for appellant, as the only matter raised in. the motion for a new trial was that the allowance was excessive, and its alleged excessiveness is the only question we can consider. While the amount involved is small, only $375, yet the work involved and skill required were the same as if the amount had been much larger. In effect, it amounts to $50 in each court, there and here. We cannot say that the allowance is excessive or arbitrary.
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Hughes, J.
This is an appeal from a judgment of conviction upon an indictment for selling whiskey unlawfully. The indictment charges that the appellant sold the whiskey in Lafayette county, Arkansas. The proof is that the whiskey was sold on the steamer Waukeshaw, upon Red river. The center of the main channel of Red river is the boundary line between Lafayette and Miller counties. This line is fixed by act of the legislature, which was in proof in the case. Act December 22, 1874, § 1, creating Miller county. Besides, the court takes judicial notice of county lines as described in public acts. Bittle v. Stuart, 34 Ark. 224.
The evidence to show on which side of this boundary line the whiskey was sold is not satisfactory to us. Therefore, it seems there is a failure to prove the venue. It is true, W. H. Baker, captain of the steamboat Waukeshaw, over the objection of appellant, was allowed to testify that Red river was considered the boundary line between Lafayette and Miller counties; but this was error, the line having been fixed by act of the general assembly, according to which it is not Red river, but the “center of the main channel of Red river.” There is no uncertainty as to the boundary line between these two counties, but the uncertainty is as to the place where the offense was committed, whether if was on the one or the other side of this line. State v. Rhoda, 23 Ark. 156. The burden of proving the venue was on the state. Scott v. State, 42 Ark. 73, 77.
The court committed error in the first instruction given for the state, which assumes that Red river was the boundary line between Lafayette and Miller counties, and, even if there was evidence from which the jury might have found that the venue was proved, the giving of this instruction was prejudicial error, for which the judgment is reversed, and the cause is remanded for a new tria1,.
Bunn, O. J., and Battle, J., not participating. | [
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Bunn, C. J.
The appellee, Henry H. Stewart, was in the employ of the United States government as a postal clerk, and in the performance of his duties as such was a passenger in the mail coach of defendant’s passenger train, on the 5th of February, 1898, going north from Texarkana to St. Louis; and when the train reached the little town of Hematite, about thirty-five or forty miles south of St. Louis, the train was wrecked; and the appellee was injured by receiving a cut an inch long aud to the bone on the left side of the head and a contusion on the left thigh, wherefrom he suffered from nervous shock, and was unable to perform his customary duties for twenty or thirty days, thus losing $100, and paid out for medical attendance $13, and some other small amounts.
The circumstances of the wreck were substantially as follows, viz: The train was running at the rate of fifty or sixty miles an hour, greatly in excess of the schedule time, which was thirty-three miles an hour, it being some minutes behind time, and the trainmen in charge were endeavoring to make up the time. It was about 6 o’clock a. m., which was at that season of the year dark. For the distance of a thousand or twelve hundred feet before reaching the street or public-crossing at Hematite, there were curves in the railroad track forming the letter “S” —that is, two curves — and the track was in a cut from six to eight feet deep, about six feet deep towards the highway crossing and up'to it. The engine struck a passing cow on the highway, and was thus thrown from the track, as were the tender and several of the coaches following, among them the mail coach in which the appellee was traveling, and was at his usual work at the time. The mail coach was turned over on its side, and the appellee was thus injured. It is in evidence that one occupying the engineer’s place could see a cow only a •short distance ahead, owing to the curves and the depth of the cut. It was also shown that in'the night time, when the headlight had to be depended on, on account of the curvature of the road bed, and the consequent diversion of the rays of the •headlight, from the track, a cow could not be seen further than one hundred feet in front of the engine.
The railroad bed, the cattle guards on either side of the highway and the wire fences leading therefrom, and the train, with its running gear and appliances, were all in perfect con = dition. Both the engineer and fireman were instantly killed. The statutes of Missouri regarding cattle guards and track fencing, as affects this case, are not materially different from the laws of this state.
The main question in the ease is, were the employees of defendant guilty of negligence in operating the train at the time of the injury complained of ? All the statutory signals had been given, and the stock signals required by the regulations of the company had also been given. But was all this suffi cient under the circumstances of this case? There was no apparent necessity to keep a watchman or guard at this crossing. Hematite is but a very small village, and it may be admitted, for the sake of the argument, that the crossing was little different from such a crossing in the country. But this immunity from keeping a watch at the crossing does not relieve railroad companies from the exercise of such care as it reasonably can use to prevent occurrences such as this one is shown to have been. Therefore there was no necessity for an instruction on the subject of gates and watchmen. It was shown that both the engineer and firemen were experienced in their stations, and the engineer especially was regarded as one of the finest engineers on the road. Both were acquainted with this part and all parts of the road, as they had been employed for sometime in running on these trains. Was it prudent or in the exercise of due care for this engineer, with his knowledge of the surroundings, to run his train at this particular point at the rate of fifty or sixty miles per hour, when only required by the schedule to run thirty-three miles per hour? The necessity of making up lost time is never so great as that of preserving human life, and even when the making up lost time approaches necessity itself, the necessary increase of speed should be on parts of a road where a strict lookout will be reasonably effective in preventing injuries, or at least the probability of injury, to persons and property.
From the evidence, the portion of the track involved was peculiarly trying to trainmen, and some things which would have greatly aided them in the successful running of the train on other portions of the track were absent at this place — a straight track and perfectly level grade, or grade that would insure a quicker stoppage of the train than on a down grade as this was. It appears to ús, as it evidently did to the jury, that, without having to resort to anything that would have rendered the service of the road to the public less effective or to the company less remunerative, a far less rate of speed would have been the proper thing in this instance. At the time of the collision the train was running at a rate of nearly a mile a minute. To run the hundred feet, which was the greatest dis tance- the eugineer could have observed the cow, required little more than a second of time. A strict lookout, as required by law, and the application of the most effective means known to slow up or stop the train, could not possibly avail anything. No effective alarm could have been given in that moment of time. These things should have been taken into account by the engineer.
On the subject of the degree of care necessary under such circumstances, the court gave, at the instance of the plaintiff, instruction number 6, and, at the instance of the defendant, instructions number 8 and 12, which, taken together or even separately, fairly define what is the law applicable, as held by this court in all its decisions on the subject. Little Rock & F. S. Ry. Co. v. Miles, 40 Ark. 298; Eureka Springs Railway v. Timmons, 51 Ark. 459; Railway Co. v. Sweet, 57 Ark. 287; Railway Co. v. Sweet, 60 Ark. 550; George v. St. L. I. M. & So. Ry. Co. 34 Ark. 613. These instructions in their oi’der are as follows:
To the plaintiff, No. 6: “Railroad companies, in the carriage of passengers, are required to use the utmost care and foresight, and are held responsible for the slightest negligence. The first and most important duty incumbent on them is- to provide for the safety of their passengers. To this end they are required to provide all things necessary to their sectu-ityq reasonably consistent with their business, and appropriate to the means of conveyance employed by them, and to exercise the highest degree of practicable care, diligence and skill in the operation of their trains.”
To the defendant, No. 8: “The court instructs the jury that, while the law demauds the utmost care for the safety of passengers, it does not require railroad companies to exercise all the care, skill and diligence of which the human mind can conceive, nor such as will free the transportation of passengers from all possible perils. The plaintiff in this case necessarily took upon himself all the usual and ordinary perils of travel; and if they find from the evidence that defendant had exercised all the care, skill and diligence required by law, as defined in these instructions, and that nevertheless the accident occurred, the defendant would not be responsible therefor, and your verdict should be for defendant.” And
No. 12: “The care required by railroad carriers has been defined to be the highest practicable care which capable and faithful railroad men would exercise in similar circumstances.”
It was objected by the defendant that, having proved what was the statute law of Missouri on the subject of cattle guards and fencing and the liability and immunity therein declared, the court refused to permit the witness Ewing to testify as to the construction put upon said statute by the supreme court of that state. We see no error in this refusal. The best evidence of what the supreme court of Missouri has said on the subject is the report of its decisions, which are easily accessible, even admitting this is a matter of proof at all.
In the course of the examination of witnesses, one witness who, we infer, had been injured in the same wreck, or claimed to have been, was asked if the railroad had settled with him, to which he answered in the affirmative. To the asking of and the answer to their question, the defendant objected, but the court overruled its objection. There was error in this, but in view of the particular point at issue and the proof sustaining the plaintiff’s contention — negligence—and for other reasons, the error is not a reversible error.
There is some question as to the amount of damages. Further than the loss of wages by the loss of time, the medical bill, etc,., this court has no certain evidence in the case. Pain or suffering, as elements of damage, are uncertain quantities, both' for the jury and the court. We will not disturb the verdict in this particular case.
Affirmed. | [
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Hughes, J.,
(after stating the facts.) We cannot see that the appellee had any lien upon the two bales of cotton for ginning that he could enforce against the appellants. If he had a lien at common law for the amount due for ginning, it existed while he retained possession of the property; but when he sui'rendered possession of it, and it went into possession of another, who knew nothing of his claim, and who gave value for it, his lien, if he had one, no longer existed. If he might have had a lieu, as for labor performed, under the act of March, 1868, he does not claim under that act, and makes no proof to bring himself within its terms. The claimant of a laborer’s lien under that act must bring himself strictly within the terms of the act. “The plaintiff must perform manual labor, and there must be some product of his labor, to which thé lien must attach.” Flournoy v. Shelton, 43 Ark. 170.
If Fowler had or could have had a lien for work and labor under the act of March 11, 1895, by the express terms of the act it was subject to prior liens. Acts 1895, p. 39. Appellant’s mortgage was recorded January IT, 1897; the cotton was ginned in the fall of same year, 1897. Therefore Burrow’s had the prior lien. While, in justice, Fowler was entitled to pay for his ginning, we think that under the law Burrow & Son were not liable for it.
The judgment is reversed, and the cause is remanded fora new trial. | [
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Wood, J.,
(after stating the facts.) Was the order of the county court void by reason of a failure to give notice as required by law? It is contended by the appellee that the order is a nullity because the sheriff’s return shows a failure to comply with section 4356 of Manfield’s Digest, which was in force when the order was made. That statute prescribes that “when a legal publication of any character is required by existing or future laws * * * . tobe made by advertisement in a newspaper printed in this state, it shall be published in some daily or weekly newspaper prmted in the county where the suit or proceeding is pending, or where the * * * subject of the proceeding or publication is situated. Provided, there be any newspaper printed in the county having a Iona fide circulation therein, which shall have been regularly published in said county for the period of one month next before the date of the first publication of said advertisement.”
It will be observed that the affidavits of the editors attached to the sheriff’s return each fail to show that the re spective newspapers had been regularly published in Carroll county for the period of one month next before the date of the first publication of said advertisement. Neither the return itself nor the recitals of the record of the county court of July 12, 1890, when the order of cancellation was made, show the newspapers had been regularly published in the county for the required time prior to the first publication. On this point the present case is ruled by the decisions of this court in Gibney v. Crawford, 51 Ark. 34, and Thompson v. Scanlan, 16 S. W. Rep. 197. But it is contended that, as the affidavits of the two editors show that each paper had a circulation in the county thirty days prior to the date of the first publication, and that the notice was published in the Progress beginning April 23, and ending July 5, and in the Echo, beginning May 10 and ending July 5, the return, construed with reference to the different parts of it, shows each paper was published more than thirty days prior to the first day of publication. Non sequitur. The statute requires the notice to be published in a newspaper printed in the county, if there be one, “having a bona fide circulation therein, which shall have been regularly published in said county for one month next before the date of the first publication.” Obviously, something more is required than that the paper shall have had a circulation in the county for one month prior to the date of the first publication. It must have been printed or published in the county for that length of time before the first publication of the notice. Now, a newspaper may have a bona fide circulation in a county, and yet not be published therein at all. For we think the word “published,” as used in the statute, is synonymous with the word “printed.” Therefore we cannot see that, because it may have been shown that these papers had a bona fide circulation in the county for thirty days before the date of the first publication, it necessarily follows that they were published or printed in the county for that length of time before the date of the first publication. Nor will we, in this special statutory and summary proceeding, indulge in any astute refinements of construction in order to show that the statute in regard to jurisdiction has been complied with. Wn must adhere to the rule iu such cases that “everything will- be presumed to be without the jurisdiction which does not distinctly appear to be within it,” and insist upon a strict construction and compliance with the terms, of the statute.
We deem it unnecessary to discuss the pleas of res judicata and the statute of limitations. We have carefully considered same, and are of the opinion that they are not well taken. It follows that the judgment of the county court cancelling the warrant in controversy was void, and the judgment of the circuit court in this case ordering a peremptory mandamus on the collector to receive the warrant was correct, and it.is affirmed. | [
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Smith, J.
R. E. Smith and Bessie C. Smith, who are husband and wife, recovered judgments against the appellant railway company to compensate an injury sustained by Mrs. Smith in a wreck in the State of Kansas, while she was a passenger on one of appellant’s trains. A few hours after her injury, and while she was still en route to her destination, she compromised and settled her claim for damages for the sum of $10.00, and executed a full release. Shortly after the train was derailed, a physician and surgeon representing the railway company examined all of the injured passengers, and gave them such treatment as their condition required and the opportunity afforded. Mrs. Smith susr tained an injury which later developed into, hernia, and an injury to her wrist, which immediately gave her considerable pain, but, upon being examined by the doctor, she told him only about her wrist, which he bandaged for her and told her she had only sustained a sprain, which was not serious, and that it would soon be entirely well. She testified that she was made sick at her stomach, but that the other pain which she suffered was not to be compared to the pain caused !>y her arm. Some hours later, and while still pursuing her journey, a claim agent representing the railway company, asked to see, and was shown, her hand. This gentleman told Mrs. Smith that he had talked with the doctor, and had been assured by him that “her hand would be all right.” He then said he wañted to pay her something on account of the delay she had sustained, and she told him she did not want any pay if her hand got well, and that she signed a paper, the exact nature of which she did not understand, except that she knew it was a release of some kind. There was some conflict in this evidence, but this is the purport of the testimony offered by appellees. This release is a full acquittance for any damages.
After Mrs. Smith reached her home, the hernia developed, and a bursa, or tumor, developed on her wrist, which she still had at the time of the trial thirteen months subsequent to her injury. Her doctor testified that this tumor was not serious, and could be permanently cured by a surgical operation, and that, if the operation was not performed, she would suffer but little inconvenience, except the disfigurement, and that many persons would prefer to go through life without having it removed;
There was a judgment in favor of Mrs. Smith for $1,500.00, and in favor of her husband for $250.00, and a lien was declared in favor of each under Section 6661 of Kirby’s Digest, and this appeal has been duly prosecuted.
ft is earnestly insisted, under the authority of the case of Kansas City So. Ry. Co. v. Armstrong, 115 Ark. 123, that this cause of action is barred by reason of the release executed by Mrs. Smith. While it is admitted that the testimony in regard to the hernia makes a case which would support a judgment for the full amount recovered, it is insisted that that is one of those consequences the possibility of which the parties must be held to have had in mind when the settlement was effected.
(1-3) Mrs. Smith made no statement to the doctor in regard to the injury which developed into the hernia, and, consequently, his statement to her that she would soon be well cannot be considered as applying to that injury, and, as serious as this injury has proved to be, we would be compelled, under the above cited case, to hold that the sum of money which constituted the consideration for the release compensated that injury, had the doctor’s representations in regard to her other injury proven true. Upon the assurance of the doctor, and the reiterated assurance of the claim agent that he had, himself, talked with the doctor, and the belief inspired thereby that she had sustained only a slight and temporary injury to her wrist, Mrs. Smith made this settlement.
Now, had these representations proven true, there could be no recovery, although she sustained other more serious injuries, because no representations' were made by the company doctor in regard to such injuries, and her action in treating them as inconsequential in making the settlement was uninfluenced by any representations made to her by the company doctor.
It is said that the injury to Mrs. Smith’s wrist is slight, that the operation, if one was performed, to remove the bursa, is not a serious one, and that no great inconvenience or disfigurement would result, if an operation was never performed. But the jury may have thought otherwise. A skilled and busy surgeon, like the one who testified in this Case, might regard slightly, and as of only trivial importance, an operation of the kind which would have afforded Mrs. Smith complete relief; yet the thought of it might excite such trepidation, and especially in the mind of a nervous person, as to make preferable the permanent inconvenience and disfigurement attendant upon a failure to have an operation performed; and we cannot, therefore, say that the jury was not warranted in finding that the doctor’s representation was false when he stated to Mrs. Smith that her injury was only slight, and that her recovery would be speedy and complete, and, if there were such untrue statements, she was not bound by her release. Griffin v. St. L., I. M. & So. Ry. Co., 121 Ark. 438; St. L., I. M. & S. Ry. Co. v. Hambright, 87 Ark. 614.
It is, no doubt, true that in making up the verdict the jury awarded a larger amount for the hernia than for the bursa; but the contract of release was an indivisible one. If it was binding at all, it barred any action, and if it was not fully binding, it did not bar any part of the cause of action; and it is not claimed that the damages are excessive, if there is any cause of action.
It is insisted that the court erred in declaring a lien under provisions of Section 6661 of Kirby’s Digest. And we think appellant is correct in this contention. By this section it is provided that every person who performs any work, or furnishes any material, for the construction, or operation, of any railroad, or “who shall sustain any loss, or damage, to person or property, from any railroad, for which a liability may exist at law, * * * shall have a lien * * * for such damages, upon the roadbed, buildings, equipments, income, franchise, right-of-way, and all other appurtenances of said railroad, superior and paramount, whether prior in time or not, to that of all persons interested in said railroad as managers, lessees, mortgagees, trustees, and beneficiaries under trusts, or owners.”
(4) This section does not expressly say that this lien shall be only against the property there described which is situated in this State; but the language must be interpreted as having that meaning, for the Legislature could not give an extra-territorial effect to a statute of this kind. Likewise, it must be assumed that this lien is intended for the benefit of the class of persons there named whose cause of action and right to a judgment arises in this State. It is true that appellee’s cause of action was a transitory one, and has been reduced to judgment within this State. But it did not arise here, and it is not to be assumed that it was the legislative intention to confer the benefits of this lien upon any person whose cause of action was such that it might be brought in the courts of this State. To so hold would, in a very large measure, deprive persons, whose cause of action originated within this State, of the benefit of such liens, if they were required to share such benefits with all persons who might obtain judgment for any of the causes of action specified in that section.
This construction of the statute, not only comports with the general construction given such statutes, but is in accordance with our own decision in the case of Midland Valley Rd. Co., 80 v. Moran Bolt & Nut Co. Ark. 399. In that ease the Bolt & Nut Company, which was a Missouri corporation, had furnished material of the kind, for the contract price of which a lien is conferred under Section 6661 of Kirby’s Digest, and suit was brought to enforce a lien in its favor for the total amount due it for such'supplies. It appeared, however, that only a portion of such materials had been used in this State. It was there held that the lien could be enforced only to the extent of the materials which went into the construction of the railroad in Arkansas. This court quoted with approval from the case of Birmingham Iron Foundry v. Glen Cove Starch Mfg. Co., 78 N. Y. 30, the following statement of the law:
“ ‘Such a lien does not exist at common law. It is no part of the contract to be enforced where that can be enforced. It is purely the creature of the statute. The statute has no extra-territorial force. It was intended for the protection of those who performed labor or furnished materials within this State. When this engine was brought into this State and put into this factory, it belonged to this defendant. The plaintiff did not furnish any material in this State. It cannot, therefore, have the benefit of the statute.’ ”
The court there met the argument that the railroad must be treated as an entirety, with this statement:
“It is argued that, because the railroad must be treated as an entirety and not sold in parcels in the enforcement of hens against it, the whole debt could be enforced in this suit. The rule of treating the railroad as an entirety extends only to the roadbed and easements within the State.”
It follows, therefore, that the judgment of the court below, declaring a lien in favor of appellees, must be modified as indicated, and as thus modified will be affirmed. | [
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Butler, J.
Snow Brothers Hardware Company obtained a judgment against W. B. Rogers in the Ouachita Circuit Court on the 11th day of April, 1927. On the 7th of May, 1931,. they had an execution issued on this judgment with directions to the sheriff to levy the same on the interest W. L. Rogers had in a certain tract of land of which his father, John W. Rogers, died seized and possessed on the 6th day of May, 1931, and in which W. L. Rogers was assumed to own by inheritance an undivided one-fourth interest. After the issuance of the execution and on May 10, the appellants filed for record a warranty deed dated and acknowledged on December 7, 1926, by which W. L. Rogers undertook to convey all of the parcel of land to the appellants, A. M. Rogers, H. C. Rogers and W. H. Rogers, his brothers. When this deed was filed for record, this suit was instituted for the purpose of having said deed canceled and set aside and the interest of W. L. Rogers acquired by inheritance subjected to the satisfaction and payment of the judgment. Answer was duly filed, and the court, on consideration of the case as set forth by the pleadings and the testimony introduced by the parties, made 'the following finding of fact:
“That J. W. Rogers, deceased, indorsed his son’s, W. L. Rogers ’, note as accommodation indorser and paid it. The son agreed to either repay the money or waive his right to share with his brothers in two hundred and fifty acres of land in Ouachita 'County, at his father’s death. To carry this agreement into effect, he executed a warranty deed to his three brothers, A. M. Rogers, H. C. Rogers, and W. H. Rogers, for a recited consideration of $1,250, conveying a one-fourth undivided interest in the two hundred and fifty acres of land owned by his father and which he expected to inherit at his father’s death. He delivered this deed to his father, J. W. Rogers, in 1926, with the express understanding that if he should repay this money at any time prior to hi,s father’s death the deed should be returned.
“That W. L. Rogers failed to repay the money. Soon after the father’s death in May, 1931, the fonr defendants, being his sole surviving heirs, selected the elder brother, A. M. Rogers, and executed to him a power of attorney to administer and wind up the estate. A. M. Rogers, acting under his power of attorney, found the said deed among his deceased father’s papers and filed it on record. That this does not constitute an unconditional delivery of said deed, and that said deed is ineffectual, and that A. M. Rogers, H. C. Rogers and W. H. Rogers acquired no interest in said lands under and by virtue of said deed.
“That said defendants are claiming title by reason of this deed and not by inheritance. Therefore, the indebtedness from W. L. Rogers to the estate of J. W. Rogers, deceased, is not material, since there was no delivery, and they acquired no rights by reason of the deed.
“Neither can it be construed to have been intended as a mortgage securing indebtedness to J. W. Rogers, because said Rogers had the fee simple title to said land and could not legally hold a mortgage thereon — it would have been merged. Therefore, the status of W. L. Rogers to the estate of J. W. Rogers, deceased, is that of a common debtor, so far as the rights of the parties are here concerned. The deed to the grantees (defendants) fails. None was executed or could have been executed to J. W. Rogers, the fee owner.
“By force of plaintiffs’ execution they have a lien which should be foreclosed and sold by a commissioner of this court. ”
The court thereupon rendered a decree holding that the deed was null and void, and that the appellees ’ execution lien be foreclosed and the one-fourth interest of W. L. Rogers in the lands be sold by commissioner of the court to satisfy the judgment obtained by the appellants against him on the 11th day of April, 1927.
The facts as found by the chancellor cannot be said to be against the preponderance of the testimony, nor do the appellants complain of this, for indeed these- were the facts contended for by them. They insist, however, that W. L. Rogers, at the time of the execution of the deed and in the lifetime of his father, had snch an interest in his father’s lands that he conld sell or mortgage and that the deed executed by W. L. Rogers to his brothers constituted an equitable mortgage on his prospective interest in the lands which constituted a superior lien to the judgment lien of the appellees. It is true that the effect of our statute is that a warranty deed will convey an after-acquired title, but the essential character of the mortgage is that there must exist an indebtedness or liability between the parties which the conveyance is intended to secure. Farrow v. Farrow, 136 Ark. 140, 206 S. W. 134; Wells v. Moore, 163 Ark. 542, 260 S. W. 411.
“No conveyance can be a mortgage unless made for the purpose of securing the payment of a debt or. the performance of a duty, either existing at the time of execution or to be created, or to arise in the future. Hence, a deed which is absolute in its terms cannot be converted into a mortgage without proof of an obligation to be secured by it either in the form of an antecedent debt between the parties, or a loan, debt, assumption or liability, or contract for future advances contemporaneously made.” 41 C. J., § 97, p. 333.
It was admitted by W. L. Rogers in his testimony that he did not owe anything to either of the grantees in the deed of December 7, 1926, and there is no testimony to the effect that they had assumed any liability for him. Therefore, the deed was not a mortgage. Neither was it effectual, although in form a warranty deed, to convey to them his after-acquired title. In order for a deed of that description to convey the after-acquired title, it must be executed so as to pass the grantor’s estate if -at the time he had title, and to be so executed it is essential that there be a delivery. In any given case whether or not the deed was delivered is essentially a question of fact to be determined by the intent of the grantor as manifested by his acts or words or both. It is only where the acts or words unequivocally evince the purpose of the grantor that the question of delivery becomes one of law. Battle v. Anders, 100 Ark. 427, 140 S. W. 593. It is claimed that the delivery of the deed to John W. Rogers was in effect a delivery to the grantees, but this is not the case. Where the deposit of a deed is with a third person, it must be irrevocable, and, if it is subject to the control of the grantor, its delivery has no binding effect. Moore v. Moye, 122 Ark. 548, 184 S. W. 63; American Central Fire Ins. Co. v. Arndt, 129 Ark. 309, 195 S. W. 1075.
In the instant case the undisputed evidence is that there was no direction to John W. Rogers to deliver the deed to the grantees, nor was the delivery to the father an irrevocable act and the deed was subject at any time to revocation by the payment of the debt W. L. Rogers owed his father. We are of the opinion that the finding of the chancellor that there was no delivery is not against the preponderance of the testimony. It follows that the decree of the trial court is correct, and it is therefore affirmed.
Kirby, J., dissents. | [
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Hart, J.,
(after stating the facts). (1) Squire Holman owned the lands in controversy as his homestead at the time of his death. About two years after his death his widow, Mrs. M. E. Holman, married a man named Jones. She still continued to reside upon the land with some of her children. At the time the lands were sold for taxes on June 11,1906, for the taxes of 1905, Mrs. M. E. Jones resided on the land with her son, Gus Holman. She had a life estate in the lands by virtue of her home stead interest. She had the exclusive right to the possession of the lands and it was her duty to pay the taxes thereon.
In Rodman v. Sanders, 44 Ark. 504, it was held that one who is in possession and receiving the rents and profits of land can not acquire a title to it by a purchase for taxes, and that such acts only operate as a payment of the taxes.
(2-3) In Cocks v. Simmons, 55 Ark. 104, it was held that a tenant in common of land can acquire no title to the interest of his cotenants by purchase at a sale of the whole for delinquent taxes and that his purchase amounts to no more than the payment of the taxes and gives him no right except to demand contribution from his cotenants. Many cases to the same effect are cited in a case note in 8 A. & E. Ann. Cas. at page 988. Various reasons have been assigned for the rule and the one most frequently given is based upon a community of interest in a common title creating such a relation of trust and confidence between the parties that it would be inequitable to permit one of them to do anything to the prejudice of the other in reference to the property so situated. Judge Cooley says that a purchase made by one whose duty it was to pay the taxes shall operate as payment only, and that he shall acquire no rights as against a third party by a neglect of the duty which he owed to such party. Cooley on Taxation, 3 ed., vol. 2, p. 965. This rule applies with especial force to Mrs. M. E. Jones, because she had a life estate in the lands, was entitled to the exclusive possession of them, and it was her duty to pay the taxes. If she had purchased, or procured any one to purchase for her, the lands at a sale thereof on account of the nonpayment of taxes, her purchase would be void and operate as a payment of the taxes. Swan v. Rainey, 59 Ark. 364; Rowland v. Wadly, 71 Ark. 273. The rule is founded on public policy and is designed not only to protect the interest of the parties represented, but as a guard against temptation on the part of the representatives. For the same reason it is said that a cotenant can not add to or strengthen his title by purchasing the title to the entire property from a stranger who has purchased the premises at a tax sale, as the law will not allow that to be done indirectly which can not legally be accomplished directly. See case notes to 8 A. & E. Ann. Cas. at 989 and 116 Am. St. Rep. 367, and 75 Am. & St. Rep. at 239; Phillips v. Wilmarth, 98 Ia. 32, 66 N. W. 1053, and Duvois v. Campau, 24 Mich. 360.
Inman purchased the land at the tax sale and received the clerk’s tax deed therefor in April, 1908. He conveyed a part of the land back to Mrs. Jones on April 10,1910, and a part of it to Gus Holman on April 6,1910. During all this time Mrs. Jones and Gus Holman had been in possession of the land. The reconveyance to them operated as a payment of the taxes. On April 13, 1912, Mrs. Jones and Gus Holman reconveyed the lands to Inman and he went into possession of them. This suit was not brought until November 9, 1914, hence it is insisted that Inman acquired a title by adverse possession under the tax deed which was executed to him on June 19, 1908, although it is conceded that the sale for taxes was void. It is contended that this tax deed notwithstanding the tax sale was void and the conveyance from Inman to Mrs. Jones and Gus Holman in 1910, operated as a payment of taxes, remained as color of title and entitled him to the benefit of section 5061 of Kirby’s Digest in regard to the time in which suits may be brought against the purchaser at a tax sale. They rely upon the cases of Brandon v. Parker, 124 Ark. 379, and Moore v. Morris, 118 Ark. 516.
(4) In the case of Moore v. Morris, the title to the land was wrested from the holders of the record title by adverse possession for seven years. The court held that notwithstanding this fact, the record title continued in existence and remained as color of title so that the holder of the record title could reacquire title to the lands by payment of taxes for seven years under section 5057 of Kirby’s Digest, the lands being wild and unoccupied < lands'. This rule was extended in Brandon v. Parker. There a person held lands under a donation deed and , another person entered in possession of them within two years and acquired title by adverse possession. It was held that the donation deed of the first owner, although the lands were forfeited to the State under a void tax sale, remained as color of title so that the holder of it could acquire title by adverse possession for two years under section 5061 of Kirby’s Digest. The effect of the holding in those two cases was that although the first owner lost his title by the fact that another had acquired title by adverse possession, his deed or paper title not having been canceled by any order or judgment of the court, remained as color of title. As we have already seen, when Inman conveyed the lands to Mrs. Jones and to Gus Holman, in April, 1910, he had not acquired title to the lands under section 5061 of Kirby’s Digest. Hence his reconveyance of the lands to them operated as a redemption of the lands and as the payment of the taxes by Mrs. Jones and Gus Holman. The deeds to them as fully extinguished the tax title of Inman as could have been done by any order or judgment of a court, and it could no longer remain as color of title. The deeds from Inman back to Mrs. Jones and Gus Holman having opérated in law as a payment of the taxes, Inman had no further rights in the premises under the tax sale and could not thereafter be considered as a tax purchaser at all. To hold otherwise would prevent the repurchase by Mrs. Jones and Gus Holman from operating in law as a payment of the taxes.
(5) It is also contended that the appellees are barred of relief in this case by laches. There is a principle of law that where a eotenant buys in an outstanding title, his cotenant must elect within a reasonable time to contribute his due proportion of the money expended in purchasing the outstanding title. Brittin v. Handy, 20 Ark. 381, and Clements v. Cates, 49 Ark. 242. This rule, however, has no application to a case like this; for the possession of one cotenant is the possession of all and laches can not bar the right of entry to a cotenant until the latter’s disseisin has been effected by some notorious act of ouster brought home to his knowledge. Parker v. Brast (W. Va.), 32 S. E. 269. This rule applies with especial force for the reason that Mrs Jones had a life estate in the lands and was entitled to the exclusive possession of them, and it was her duty to pay the taxes. She and her son, Gus Holman, were in possession of the land up to the time they sold it to Inman in April, 1912. This action was brought on November 9, 1914, and was instituted within a reasonable time after appellees ascertained that Inman was claiming the land under his purchase of the land from Mrs. Jones and Gus Holman. Some of the parties interested lived in Kentucky and there were minors, and when all the circumstances are considered we are of the opinion that they were not barred of relief by laches.
(6) There is still another reason for upholding the decision of the chancellor. In a case note to 8 A. & E. Ann. Cas. at page 989, it is said that where a cotenant entered into negotiations with a third person by which such third person agrees to bid in the property at the tax sale and after the period of redemption expires to transfer it to the cotenant, or where, after a third person has bid in the property at a tax sale, a cotenant, by collusion with, him, secretly redeemed the property and after the period of redemption has expired takes a deed from the purchaser ; the transaction is fraudulent, and the purchasing tenant acquires no title as against his cotenants. Several cases are cited in support of the rule. In the cases of Swan v. Rainey, 59 Ark. 364, and Rowland v. Wadly, 71 Ark. 273, this court has distinctly recognized the rule that where the evidence establishes a collusive attempt on the part of a life tenant and a third person to acquire the whole title to the land, such transaction will be deemed fraudulent and void and will be set aside in equity.
We think the testimony in the present case shows collusion between Mrs. Jones and her son on the one hand and Inman on the other to acquire the whole title to the land in fraud of the rights of their cotenants, at least after Mrs. Jones and Holman found out that Inman had become a purchaser at the tax sale. It is true that all of these parties deny this to be true, and state that the transaction had between them was in perfect good faith, but their testimony is contradicted by the testimony of other witnesses and also by certain contradictions and inconsistencies in their own testimony, which we will briefly attempt to point out.
It will be remembered that Mrs. Jones had had possession of the land since her husband died in 1888 and resided on it with her son, G-us Holman, at the time of the sale for nonpayment of taxes in June, 1906. Inman received his tax deed in April, 1908. Mrs. Jones and Grus Holman claimed that they began to pay him rent as soon as they found out he had received his tax deed. It does not appear that they made any effort to find out whether the tax deed was valid or not. It is now conceded that it was void. They say that they each paid Inman $200 for a deed to eighty acres of the land. Grus Holman admits that he had no money with which to pay the taxes on the land and no money with which to redeem it. It is not shown that Mrs. Jones had any money whatever. She lived on the place with her son, G-us Holman, and had no other occupation than that of housekeeper for him. Their answers as to where they got the $400 with which they bought the property from Inman are evasive, and it is fairly inferable that they did not have any such amount of money. In addition to this, a witness testified that Gus Holman told him that they had let the land sell for taxes and were buying it in to strengthen their title. The amount of cleared land on the place was barely sufficient to afford a living for Mrs. Jones and her son, and it is not shown that they ever made anything above a living.
Inman testified that when he bought the land back he agreed to pay Mrs. Jones $450 and Gus Holman $800. He first stated that he paid them this amount in cash, but subsequently said that they owed him some accounts and that these accounts were taken as part payment of the land. They had been trading with Inman for several years, he said, and owed him on that account. This tends to show that Gus Holman and his mother did not have any money with which to purchase the land in 1910.
They testified that Inman paid them cash when they reconveyed the land to him in 1912. Inman first stated that he did not know that any one else had an interest in the land except Mrs. Jones and Gus Holman, but upon cross-examination he admitted that he talked with them before he bought the land and that they told, him about the state of the title. He said they told him that Squire Holman had sold a tract of land owned by him in Kentucky, and had given the children there a part of the purchase price and had taken a part of it himself and had come to Arkansas, and bought the land in question with the understanding that his Kentucky children would claim no interest in any land he might purchase in Arkansas.
On the other hand, it is shown by appellees that the land sold by Squire Holman in Kentucky was owned by his first wife, and that his children by his first wife only took a part of the proceeds of the sale and let their father keep the other for the purpose of buying land when he came to Arkansas. Be that as it may, it is admitted by Taman that he knew the land belonged to Squire Holman at the time of his death.
Another witness testified that he talked with Inman in 1908, and that Inman admitted to him then that he. knew that other parties than Mrs. Jones and Gus Holman had an interest in the land.
(7) Still another witness testified that Inman wanted him to go m with him and buy the land from Mrs. Jones and Gus Holman, and said that Inman then knew that other parties had an interest in the land. It is true Turnan denies these conversations, but when all the facts and circumstances are considered together, we think the, evidence establishes a collusive attempt on the part of Inman and Mrs. Jones and Gus Holman to acquire the whole title to the land, and that this constituted a fraud which would warrant the chancellor in setting aside the sale to Inman. Besides that, as we have already seen, Inman knew that other persons were interested in the land when he purchased it from Mrs. Jones and Gus Holman, and that he could only acquire by purchase from them whatever interest they might have in the land. By lis purchase he became a tenant in common with the other parties interested in the land and was charged with the same duties and obligations towards his cotenants as any other tenant in common would be. He could not claim adversely to their interest until he had notified them of that fact.
Counsel for appellant filed a motion to modify the decree on the ground that appellees by certain deeds had conveyed a one-half interest in their respective shares to Baker and Sloan, attorneys, and that they had concealed this fact until after the decree was entered of record. It appears from the testimony of Baker and Sloan that the appellees employed them to recover their interest in the land in controversy and agreed to pay them one-half of the lands so recovered. A written contract to this effect was entered into between the parties which provided that Baker and Sloan were to have one-half of whatever percentage of the land they recovered for appellees in the action. Subsequently the parties realized that on account of the number of appellees and the fact that they lived in various places, it would be difficult to procure deeds from them in the event of a sucessful termination of the suit. Hence, they executed deeds to Baker and Sloan and delivered them to them with the express understanding that the deeds should not take effect unless there was a recovery of the lands. The court held that the deeds executed to Baker and Sloan were not intended to take effect until the final determination of the action, and .that appellees had a right to bring proceedings to recover their interest in the premises without making Baker and Sloan parties. We think the decision i f the chancellor was correct.
(8) It is insisted that such holding violates the well known rule of evidence that parol testimony is inadmissible to vary the terms of a written instrument and that the delivery of the deeds to Baker and Sloan was an attempt to deliver the deeds in escrow to the grantees-which can not be done, for a delivery to a stranger is essential to an escrow. Conditions precedent are such as must happen before the estate depending upon them can arise. In the present case the deeds were delivered to Baker and Sloan upon the express condition that the deeds should not become effective until the successful determination of the lawsuit. Thus they were not to become operative until another part of the contract, a condition precedent, was fulfilled. This court has held that parol evidence tending to show that a written instrument was not delivered as a present contract but was left in the hands of the obligee on condition that it should not become a binding contract except in a certain contingency was competent. Graham v. Remmel, 76 Ark. 140; Worthen v. Stewart, 116 Ark. 294, and Kimbro v. Wells, 112 Ark. 126. For the same reason the delivery of the deed subject to the condition precedent above referred to was not an attempt to deliver the deed in escrow to the grantees. Hence we think the decision of the chancellor on this branch of the case was also correct.
Moreover, Baker and Sloan were made parties to the proceedings after the original decree was entered of record and their rights were adjudicated. Therefore, no prejudice could have resulted to appellants because they were not made parties in the first instance.
We have carefully considered the record in regard to the rents, and the improvements, both on appeal and the cross-appeal, and without protracting this opinion to set out the evidence and finding of the court on these points in detail, we deem it sufficient to say that we are of the opinion that the decree of the chancellor was correct on this branch of the case.
It follows that the decree in its entirety will be affirmed. | [
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Humphreys, J.
This suit was instituted in the Chi-cot Circuit Court on February 19, 1916, by appellee against appellant seeking to recover a thousand dollars on account of an injury received while driving a team and wagon loaded with cotton under appellant’s railway track or trestle where it crosses the public highway between the towns of Eudora and G-rand Lake. Appellee based his right to recover on the alleged negligent construction and maintenance of the crossing by appellant, in that the crossing was not of sufficient height to allow safe and suitable passage for the usual, ordinary traffic on the highway.
Appellant denied all the material allegations of the complaint, and by way of further answer, charged appellee with contributory negligence.
Trial was had -upon the issues joined, and a verdict returned and judgment rendered in favor of appellee for $183.75.
Proper steps were taken and the cause is here on appeal.
The assignments of error insisted upon for reversal will be better understood by a short statement, in substance, of the facts.
"Will Jenkins, a negro man, was employed by W. H. Stephenson on September 5, 1916, to haul a load of cotton from Eudora to Grand Lake. Five bales of cotton were on the wagon, three on the bottom across the cotton frame, and two lying lengthwise on top of the three bales. The highway approached the trestle on a slight curve or bend and gradual rise in the roadbed. When the injury occurred, the space between the roadbed and trestle was eight and a half or nine feet. At the time the trestle was built, a space of twelve feet was left between the roadbed and the trestle. In 1912, the floods washed a hole in the roadbed to the depth of twenty-five feet. It became necessary to curve the road around this hole, and in order to do so, an additional opening was made in the dump and a new wagon road was built by the railroad company, leaving a space of twelve feet between the roadbed and trestle. The traveling public complained because the new roadbed was muddy, so the railroad company put eighteen inches of cinders on the roadbed, leaving a space of ten and a half feet between the trestle and roadbed as repaired. From that time until the injury occurred, the roadbed filled in until the space between the trestle and roadbed was eight and a half or nine feet, as stated above. This space was barely sufficient to accommodate a wagon loaded with five bales of cotton in the usual way. There was not room between the top bale on a cotton wagon so loaded and the trestle, for a driver standing on the bottom bale, to lay his arm on and hold to the burlap of the top bale. "Will Jenkins was not familiar with the condition there. He had never driven a wagon loaded with cotton under the trestle. As he approached the trestle on the curve and rise, it appeared to him that he could pass under the trestle while sitting on the top bale. "When his mules had passed under the trestle, he discovered his dangerous situation and got down quickly on the front bottom bale and caught the top bale with his right hand to keep from falling, and by stooping saved his head, but his right arm was caught between the top bale and trestle and seriously injured. The accident happened about 11 o’clock A. M.
This cause was sent to the jury on the theory that it is the duty of a railroad company in Arkansas to construct and maintain a public highway crossing under its tracks or trestles in a reasonably safe condition for the ordinary use of the traveling public.
It is insisted by appellant that the theory upon which this cause was submitted to the jury contravenes the law. In the ease of St. Louis, I. M. & S. Ry. Co. v. Smith, 118 Ark. 72, quoting from the eighth volume of American & Eng. Enc. of Law (2 ed.), p. 363, this court said: “It is the duty of every railroad company properly to construct and maintain crossings over all public highways on the line of its road in such manner that the same shall be safe and convenient to travelers so far as it can do so without interfering with the safe operation of the road;” and quoting again from the same work on page 374, said: * ‘ The duty of the railroad company to repair and restore a highway is a continuing one, and commensurate with the increasing necessity of the public. * * # ’ ’
Speaking of the same duty in Chicago, R. I. & P. Ry. Co. v. Redding, 124 Ark. 368, this court said: ‘ ‘ The manner of discharging this duty is a proper subject of statutory regulation; but the duty is not created by the statute. It exists independently of it. Our Legislature has seen proper to exercise its authority in this- respect only by prescribing the elevation of crossings by designating the ratio of horizontal to perpendicular feet; but the duty exists to adapt the width of the crossing to the necessities of the public. We are not called upon to say, and do not decide, that the railroad company must, in all cases, make its crossings co-extensive-with the roads and streets over which they are placed, but they must anticipate the reasonable demands of the public, and where the traffic requires it, the crossing must be made available for the entire width of the road or street. ’ ’
It is true that the two cases above referred to were dealing with grade crossings. Appellant insists that a different rule should be announced concerning highway crossings below grade. The duty imposed upon railroads to exercise ordinary care to construct and maintain highway crossings, so as not to unreasonably interfere with the free use of the highway by the public, is a common-law duty. The general law makes no distinction between crossings at, above or below grade. We find no distinction made by Elliott on Railroads in discussing the duties of railroads to construct and maintain railway crossings on highways,, in chapter 46 on highway crossings, and chapter 49 on injuries at crossings. Mr. Elliott places grade crossings, crossings above grade and crossings below grade in exactly the same category.
We think the better rule is to make no distinction in liability on account of the different character of crossings except where the statutes of the State expressly regulate the duties and liabilities pertaining to the one or the other. Appellant has cited the case of Gray v. Banbury, 54 Conn. 574, in support of its contention that no duty rests upon a railroad to keep a subway crossing in repair. In that case, the borough of Banbury worked the street and raised the grade thereof after the railroad bridge was constructed across the street, by placing gravel thereon. The undisputed evidence in the case at bar shows that appellant not only constructed the trestle above the highway, but changed the roadbed and afterward repaired it by placing eighteen inches of cinders thereon. The construction placed by the Connecticut court upon the statute requiring railroad companies to construct and maintain all the crossings of highways in such manner as the convenience and safety of the public traveling on the highway may require, is not in accord with the rule laid down in our State.
In support of appellant’s position, it also cites the case of Metuchen v. Pennsylvania Railroad Company, 71 N. J. Equity, 404. In that case the following language in a New Jersey statute was before the court for construction: “To construct and keep in repair good and sufficient bridges or passages over or under said railroad where any public or other road shall cross the same.” Mr. Justice Pitney, in declaring the obligation imposed upon a railroad by that statute, said: “I am unable to follow the very ingenious argument of the counsel for the complainant in support of his construction of that clause of the act. • I think that the words construct and keep in repair apply wholly to the word bridges. It may be said that the railroad will, in self protection, so to speak, keep a bridge like this, which conveys the railroad over the highway, in good repair. But that consideration does not apply to the case where the bridge is erected to carry the highway over the railroad. The words keep in repair were intended to apply to the latter class of bridges, and do not, in my judgment, apply to the word passages under the railroad. This, I think, is the reasonable construction. The object of the Legislature was to prevent the railroad company from imposing upon the public-any increased burden by reason of the railway crossing. Hence, where there is a crossing at grade, it is the duty of the railroad to keep in repair with proper planking, etc., so much of the highway as is immediately affected by the presence of its ties and rails.” We have no such statute in this State, and the construction placed upon the New Jersey statute by that court is not applicable here. The construction of a statute is not involved in the instant case. No statute has been passed in this State imposing duties and liabilities on railroad companies with reference to the construction and main tenance of subway crossings, and in this State these duties and liabilities are controlled by the principles of the common law.
Aside from these two cases, the authorities are uniform in making no distinction as to the duties and liabilities of railroads in reference to overhead, grade and subway crossings. .Under this view of the law, instruction No. 1, given by the court, clearly and correctly presented the law applicable in this case.
It is insisted, however, that instruction No. 1 should not have been given because there was no evidence tending to show that the roadbed itself was not in a reasonably safe condition. The objection now made to the instruction by appellant was not specifically poijited out to the circuit judge, nor do we think that the interpretation now contended for is the meaning of the instruction. The instruction was not aimed at the condition of the roadbed itself, but had reference to the entire crossing as it existed when the injury occurred.
It is contended, however, that under appellee’s own testimony, he was guilty of contributory negligence, and for that reason the cause should be reversed. It is true that appellee tesified that he approached the bridge in broad daylight; that he was watching it steadily as he approached it; that there was nothing to obstruct his view. It is also true that the clearance between the sills of the bridge and the top bale of cotton was only one or two inches. It must be remembered, however, that appellee was a stranger to the condition and situation at this crossing; that on account of the change made in the . roadbed by the railroad company, the approach to the passageway under the trestle was on a slight bend or curve, and that there was a gradual rise in the roadbed at that point. The conduct of appellee immediately upon the discovery of the dangerous situation indicates that he was on the alert. The jury might have inferred from all the facts and circumstances in the case that appellee made a simple mistake in estimating distances. In driv ing or passing under objects, tbe most careful and prudent man frequently overestimates the height of the ob-. jeet. For example, hats are knocked off and faces scratched by limbs overhanging the road on account of parties overestimating the height thereof. Many a careful, cautious farmer has had a close call and been injured when driving into a barn door. It is easier to hear noises and see objects than to measure and estimate distances.
Even if the facts are undisputed and fair-minded men could honestly draw different conclusions from the undisputed facts, it would be improper to say as a matter of law that appellee was guilty of contributory negligence. It was said in substance in Doniphan Lumber Co. v. Henderson, 100 Ark. 53, that the question of contributory negligence was a question of fact for the jury, and not a question of law for the court, if an uncertainty arose either from a conflict in testimony, or because fair-minded men might honestly draw different conclusions from the undisputed facts.
Applying the rule there announced to the undisputed facts in this case, we can not say as a matter of law that the injury was the result of appellee’s own carelessness.
The judgment is affirmed. | [
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McCulloch, C. J.
The petitioner, G. EL Speer, is •prosecuting attorney in and for the Eighteenth Judicial Circuit, and is under indictment returned by the grand jury of Garland county charging him with criminal misconduct. The circuit court is about to enter an order suspending the petitioner from office during the pendency of the indictment, and a writ of prohibition is sought to restrain the court from entering the order. The power to suspend petitioner from the office of prosecuting attorney is asserted under the terms of a statute approved March 1, 1917, amending sec. 7992 of Kirby’s Digest, which before being amended read as follows: “Whenever any presentment or indictment shall be filed in any circuit court of this State against any county or township officer for incompetency, corruption, gross immorality, criminal conduct amounting to a felony, malfeasance, misfeasance or nonfeasance in office, such circuit court shall immediately order that such officer be suspended from his office until such presentment or indictment shall be tried. Provided, such suspension shall not extend beyond the next term after the same shall be filed in such circuit court, unless the court is continued on the application of the defendant.” The amendment merely incorporates the words “prosecuting attorney” so as to make the provisions of the Act apply to that officer. The indictments against petitioner were returned by the grand jury prior to the enactment of the statute referred to, and it is contended that even if the statute is valid so far as it operates prospectively it cannot be given retroactive effect so as to apply to proceedings instituted prior to its passage. We pretermit discussion of the question of retroactive effect of the statute and also the suggestion that the indictments against petitioner each fail to charge a public offense, and we turn immediately to the real question at issue, whether the statute is valid in attempting to authorize the removal of a prosecuting attorney by judgment of the circuit court.
The contention of the petitioner is that the Constitution provides adequate methods for the removal of public officers, which are exclusive and do not contain authority for the circuit court to remove a State officer, and that it is beyond the power of the Legislature to confer such authority. It is contended on the other hand by the respondent that the constitutional pro visions on the subject only have reference to removal from office, and not being exclusive, leave the Legislature possessed of full power to provide for removal of officers as a part of the punishment for crime. The Constitution of 1874, art. 15, provides for the impeachment of State officers before the senate sitting as a court of impeachment, the sole power of initiating the proceedings being vested in the Hou^e of Representatives. It is provided that the impeachment “whether successful or not, shall be no bar to an indictment.” There is a further provision in that article for the removal of State officers by the governor upon the joint address of two-thirds of the members elected to each house of the General Assembly. Those provisions, it is to be observed, apply only to State officers, and it has been decided by this court that prosecuting attorneys are State officers within the meaning of the constitutional provisions. Griffin v. Rhoton, 85 Ark. 89. Sec. 27, art. 7, of the Constitution of 1874, reads as follows: “ The circuit court shall have jurisdiction upon information, presentment or indictment to remove any county or township officer from office for incompetency, corruption, gross immorality, criminal conduct, malfeasance, misfeasance or nonfeasance in office.”
It is thus seen that there is a constitutional scheme provided for the removal of all officers, State, county and township. It is true that the method of impeachment before the General Assembly is a peculiar one, not analogous to other proceedings in civil or criminal jurisprudence, and the Constitution expressly provides, as before stated, that an impeachment shall not constitute a bar to indictments for any crime involved in the charge. The provision for impeachment of State officers might, if standing alone in the Constitution, be susceptible to the construction that it is not intended as an exclusive method of removal of such officers, but when considered in its relation to the other provisions prescribing a different method of removal of county and township officers, it is evident that the framers of the Constitution intended to erect an exclusive scheme of dealing with the subject of removals from office. The other provision with respect to the power of the circuit court was not intended merely as a method of removal, but also for the purpose of adding, to that extent, to the punishment of the criminal offense committed by the public official. Such is the construction placed on that section by this court. Haskins v. State, 47 Ark. 243. In that case the proceeding was against a county officer, but it was sought to remove him by information filed by the prosecuting attorney, and this court held that when the alleged cause of removal constituted an indictable offense, the proceeding must be by indictment, and not by information. That construction of the constitutional provision necessarily stamps it as one for the punishment of crime by removal from office. Unless we treat the provisions referred to as exclusive, then there is no effect at all given to the one concerning the jurisdiction of the circuit court to remove county and township officers, and it may as well have been omitted. The circuit count is, under the Constitution, the general residuum of all jurisdiction not otherwise vested, and in the absence of any constitutional provisions on the subject the Legislature would have power to authorize the circuit court to remove county and township officers. That section was, therefore, inserted, not merely as a grant of power, but also as a limitation, and we must so construe it to give it any effect at all. If, in other words, the framers of the Constitution had intended to leave intact the legislative power to remove officers both State and county as a punishment for crime, it would have been unnecessary to incorporate sec. 27 of art. 7. Judge Cooley laid down as one of the rules of construction “that when the Constitution defines the circumstances under which a right may be exercised or a penalty imposed, the specification is an implied prohibition against legislative interference to add to the condition, or to extend the penalty to other cases.” (Cooley’s Const. Lim. 7th Ed. p. 99). That rule of construction has been followed in many decisions, notably by the Kentucky court of appeals in the ease of Lowe v. Commonwealth, 3 Met. 241, where it was said “that wherever the Constitution has created an office and fixed its term, and has also declared upon what grounds and in what mode an incumbent of such office may be removed before the expiration of his term, it is beyond the power of the Legislature to remove or suspend Mm from office for any other reason or in any other mode than the Constitution itself has furnished.” To the same effect see Commonwealth v. Williams, 79 Ky. 42; State v. Wiltz, 11 La. Ann. 439; State v. Dunson, (La.) 70 Sou. 61. The same rule is stated by Mr. Throop in his work on Public Officers (p. 343) as follows: “It is well settled that where the Constitution creates or recognizes an office, and declares that the incumbent may be removed in a specified manner or for specified reasons, the Legislature can not constitutionally provide by statute for his removal for any other reason or in any other manner.” Sec. 2450, Kirby’s Digest, a part of the criminal code enacted in 1868, provides that “where justices of the peace, sheriffs, coroners, surveyors, jailers, county assessors, prosecuting attorneys, constables, city or police judges, clerks, and marshals shall be convicted upon an indictment for malfeasance or misfeasance in office, or for wilful neglect in the discharge of their official duties, or for any offense, which, by the statute law or Constitution, creates a forfeiture of their offices, the court shall render a judgment of removal from office, in addition to the other penalties and punishment prescribed by law.” That section has no application to suspension, but refers only to final judgments of removal from office, but it is argued in the brief for respondent that the inclusion of the office of prosecuting attorney witMn the terms of the statute ■ shows a legislative determination of the power of that body to provide for the removal of that officer by judgment of the circuit court. The statute thus referred to was enacted under the Constitution of 1868, and we need not determine whether it was valid at that time, foe if it is found to be in conflict with the Constitution of 1874, it must be held to have been displaced, although valid at the time it was enacted. It is1 worthy of notice that Kirby’s Digest, sec. 7992, et seq. which were amended by the recent statute under which the circuit court of Garland county is attempting to proceed, were enacted by the Legislature of 1877, which assembled less than three years after the adoption of the Constitution of 1874, and contained members of the constitutional convention, and that the statute was made to apply only to county and township officers, and this leads to the view that the Legislature at that time determined that it had no power to provide for the removal of any but county and township officers. Our attention is called to certain other provisions of the Constitution with respect to forfeitures of office by reason of commission of specific offenses, and that no method is prescribed for the enforcement of those forfeitures. For instance, it is provided in sec. 6, art. 3, that persons convicted of fraud, bribery and other corrupt and wilful violations of the election law of the State shall be disqualified from holding any office of trust or profit; and in see. 9, art. V, that persons convicted of embezzlement of public money, bribery, forgery or other infamous crime shall not be eligible to the General Assembly or capable of holding any office of trust or profit in this State; and in see. 2, art. 19, that no person who may fight a duel or assist in the same as second or send or accept or knowingly carry a challenge therefor shall hold any office, etc. We do not have to deal with those provisions of the Constitution in disposing of the case now before us, but when the question is presented it may be found that the power is implied for the Legislature to provide for a method ascertaining and declaring the forfeiture. Those additional provisions, however, rather strengthen the conclusion that the Constitution makers intended to provide a complete scheme for declaring forfeitures of offices and of removing officers. At any rate, the majority of the court reach the conclusion that the two provisions of the Constitution referred to in the outset were intended to operate exclusively, and that there is no power in the Legislature to provide for judgments of removal of State officers otherwise than by the court of impeachment. It follows that since the Legislature has no power to authorize the circuit court to remove a prosecuting attorney by final judgment of the court, it could not authorize the temporary suspension during the pendency of the indictments, for to do so would be to provide temporarily a greater punishment than was authorized by the Constitution. We hold, therefore, that the statute approved March 1, 1917, is void, and that the court can not proceed under it. The writ of prohibition is accordingly awarded to restrain the circuit court from proceeding beyond its jurisdiction and authority. | [
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Kirby, J.,
(after stating the facts). This proceeding was instituted to vacate a judgment rendered at a former term of court under section 4431 of Kirby’s Digest, it being alleged that said judgment was rendered against appellant without notice and obtained by fraud practiced by the successful party, and also that no sale of the lands for a specific performance of which the decree therein was rendered had been authorized or made by appellant, and no money whatever received therefor.
It is necessary, in addition to alleging one of the grounds specified in said section, also to allege a valid defense to the action in which the judgment sought to be vacated was rendered and to make a prima facie proof of the truth of such defense if it is denied, the court being without authority to grant the relief until the ground therefor is established and “it is adjudged that there is a valid defense to the action.” Kirby’s Digest, § § 4431 and 4434; Chambliss v. Reppy, 54 Ark. 541; Knights of Maccabees v. Gordon, 83 Ark. 21; Ayers v. Anderson-Tully Co., 89 Ark. 163
The burden of proof is upon the appellant, and the officer's return of service was prima facie true, and the chancellor found, upon conflicting evidence, that appellant was duly notified of the pendency of the suit and the service of the summons therein as returned by the officer, and dismissed the complaint for want of equity; and we can not say that his finding was clearly against the preponderance of the testimony.
Not having established the first ground for vacating the decree, it was not necessary to pass upon the question of the validity of the defense to the action.
It is further insisted that the court erred in the rendition of the decree in the first cause, in effect divesting the title of the lands out of Holman and vesting it in the appellee without retaining the matter in its control to see that the purchase money first directed to be paid upon the execution of the deed was paid.
A decree for specific performance on the part of the defendant, without finding or requiring performance by the plaintiff of his part of the agreement, is erroneous, and it should not be left to the plaintiff to determine when he shall perform the con dition or whether he has performed it, and that question should be reserved and a time for performance should be fixed. 80 Enc. Pleading & Practice, 496; 16 Cyc. 483.
The decree must provide for full performance by plaintiff; and if there are acts to be done on plaintiff’s part before he is entitled to performance by defendant, the decree should be so framed that defendant can not be compelled to perform except upon the condition that plaintiff do such acts. 36 Cyc. 756; Mason v. Atkins, 73 Ark. 491.
It appears from the testimony that $115 of the $120, purchase money of the lands, was paid to Dan W. Jones, who was not the agent of Holman, the defendant in the suit, and the remaining $5.00 of the purchase money to John Hamiter, whose agency was denied by Holman. It is true the decree only required the defendant to execute to the plaintiff a deed conveying the lands upon the payment by the plaintiff of the agreed purchase price of $120, but, in default of his doing so within ten days from its date, the court further decreed 1 ‘that the title of said land shall be and is hereby divested out of defendant and vested in plaintiff, ” without reserving therightto decide whether the condition was complied with and the payment made before the title was divested. It should have required the money paid into court for defendant before divesting the title, and, if that was not done, denied any relief to the plaintiff and dismissed his complaint for want of equity.
The law does not contemplate, in a suit for and decree of specific performance of a contract for the sale of lands, that the defendant shall be required to make a conveyance of the lands and then be remitted to an action against some third party, to whom money may have been paid by the plaintiff without authority, for the recovery thereof.
For the error indicated, 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.
The county seat of Dallas County was, by vote of the people at an election duly held on August 29, 1908, removed from Princeton to Fordyce, and an order of removal was duly entered by the county court, after canvassing the returns, pursuant to the result of said election. Before the election for removal of the county seat was ordered, an abstract of title to a tract or lot in the town of Fordyce proposed to be donated as a site for the new courthouse was filed and presented with the petition of the citizens who asked for the removal. The proposed tract or lot was properly and accurately described, but, for the purpose of stating the case it will be referred to as the school district lot. Certain citizens of the county who objected to the removal from Princeton undertook to contest the proceedings after the county court had, on October 6, 1908, entered its judgment declaring the result of the election and ordering the removal of the county seat pursuant thereto. On appeal to the circuit court it was decided that the removal proceedings were valid, and on appeal to this court that decision was affirmed. Walsh v. Hampton, 96 Ark. 427.
The county court in its order of October 6, 1908, appointed commissioners for the purpose of erecting a courthouse, and directed them to proceed to erect a suitable building on the tract or lot designated as aforesaid. This order of the county court was renewed on January 4, 1911, and the commissioners were then ordered to prepare for building the courthouse on the said lot. Subsequently the commissioners reported plans for the building, which plans were approved by the county court, and they were ordered to advertise for bids for the construction of the building. On May 31, 1911, the commissioners made report to the county court that they had let the contract to the lowest bidder, and this was approved by the court. They also reported at that time that they found that the original site donated (the school district lot) was not a suitable place on which to erect the courthouse, and that G. M. Hampton had proposed to donate and convey to the county certain other lots in the town of Fordyce for a courthouse site, and also that A. B. Banks had proposed to donate and convey to the county certain other lots in said town for a courthouse site. The county court thereupon made an order directing that if either of said parties should within ten days convey said lots as proposed the commissioners should accept one of said donations and proceed to erect the courthouse on the lot so donated, conveyed and accepted. On July 3 the commissioners reported that,“pursuant to the order of the court made on May 31, 1911, and the power vested in them by law, ” they had selected the Banks lots as the proper site upon which to erect the courthouse, and that said donor had executed a deed conveying said lots to the county in fee simple and that they had accepted the same as the site for the courthouse. The county court made an order approving and confirming said action of the commissioners in selecting said lots as the site for the courthouse and in accepting the donation. In the meantime the General Assembly of 1911 enacted a special statute, which was approved by the Governor April 19, 1911, whereby said commissioners, appointed by the county court of Dallas County, were “authorized and impowered to receive by donation a lot, parcel or piece of ground within the corporate limits of the said city of Fordyce, for the purpose of building a courthouse thereon, and the same, when donated and deeded to the county for said purposes and accepted by said commissioners, shall be the site for the location of the courthouse of Dallas County. ”
Appellees, as citizens and taxpayers of the county,thereafter instituted this action in the chancery court of Dallas County to restrain the courthouse commissioners from proceeding to erect the new courthouse on the site last selected.. The chancery court, on final hearing of the cause, decided that the school district lot had been established as the permanent county seat of Dallas County, and that the action of the commissioners and the order of the county court in selecting another site for the courthouse was void. The prayer of the complaint was granted, restraining the commissioners from erecting the courthouse on the Banks lot, and the commissioners appealed.
The conclusion of the learned chancellor was manifestly based on the view of the law that the removal of the county seat from Princeton by vote of the people was to the particular tract or lot of land in Fordyce proposed as the site for the courthouse, and that the county court had no power to change that designation and remove the courthouse to another site in Fordyce except upon another vote of the people as prescribed in the Constitution and statutes regulating the removal of county seats. Counsel for appellees base their defense of the decree on that view of the law.
This brings up for consideration the question as to what is meant in our laws concerning the removal of county seats by the provision for vote of the people. Does it mean that a vote is required on the question of changing the courthouse site from one lot to another in the same town or only on the removal of a county seat from one town to another? Is the county seat confined to the tract or lot of ground on which the courthouse is located, or is it the town designated as the county seat or seat of justice? The latter question seems to have been an swered by this court in an opinion written by Judge Battle giving a definition of the term “county seat."
“In every county of this State there is, and must be, a county seat. At it the county court is required to erect a good and sufficient courthouse and jail. The county, circuit and other courts held for the county must sit there. There is no other place designated by law for that purpose. The name ‘county seat/ indicates the object of its creation. It is, as defined by the Century Dictionary, ‘the seat of government of a county; the town in which the county and other courts are held, and where the county officers perform their functions.’ Williams v. Reutzel, 60 Ark. 155. Other cases seem to give the same meaning to the term by referring to the town in every instance as the county seat. Ex parte Blackburn, 5 Ark. 21; Rogers v. Sebastian County, 21 Ark. 440; Patterson v. Temple, 27 Ark. 202; McNair v. Williams, 28 Ark. 200; Maxey v. Mack, 30 Ark. 472; Russell v. Jacoway, 33 Ark. 191; Neal v. Shinn, 49 Ark. 227; Rucks v. Renfrow, 54 Ark. 409; Hudspeth v. State, 55 Ark. 323.
The earliest legislation recorded on our statute books concerning removal of county seats is found in the Revised Statutes of 1838, which provided that whenever a majority of the taxable inhabitants of any county should petition the county court praying for removal of the “seat of justice,” the court should order an election for the purpose of electing three commissioners “to locate the seat of justice.” The statute further provided that the commissioners, after election and qualification, should “select a suitable site for the location of the seat of justice;” that they should he impowered “to receive donations in lands or money and building material .for the purpose of building such public buildings as may be necessary for the use of the county at.the place selected by them as the seat of justice;” and that they should have power “to make entry of land and * * * to subdivide and lay off into lots' all such lands as they may acquire by entry, donation, or otherwise, and to dispose of the same at public auction.” It further provided that the seat of justice established for a term of four years should not be changed “unless the county court shall cause a sufficient tax to be assessed on all taxable property within the county to pay the owners of lands at such seat of justice for their lands and improvements,” and in that event “the county court shall appoint three disinterested persons, not residents of the county, to value all lots and improvements in such seat of justice. ” Rev. St. c. 39.
It needs no comment or argument to show that the framers of that statute referred to the town as the seat of justice, and not merely to the courthouse site.
The statute above referred to remained in force until March 16, 1869, when it was superseded by another statute on the subject. The new act provided that whenever one-third of the electors of any county should petition the county court for the removal of the seat of justice to any other designated place the court should order an election, directing that the proposition to remove such seat of justice to the place named in the petition be submitted to the qualified electors of the county. It then provided that if the vote was in favor of removal the county court should appoint three commissioners “to select a site whereon to locate the county buildings,” and that the commissioners should be impowered to purchase “not less than one nor more than fifty acres of land, and may receive as a donation such parcel of land or town lots including the place selected as the seat of justice.”
It is manifest that the language of this statute, so far as concerns the removal of the county seat, refers to the removal to a town. This is evident from the provision for appointing commissioners to select the site after the election at which the removal is voted. It is plain, therefore, that up to this time the Legislature referred to the county seat or seat of justice as the town in which the courthouse was located. The law thus stood in that condition until the adoption of the Constitution of 1874, which was the first .provision on that subject found in any Constitution of this State.
“No county seat shall be established or changed without the consent of a majority of the qualified voters of the county to be affected'by such change, nor until the place at which it is proposed to establish or change such county seat shall be fully designated. Provided, that in the formation of new counties the county seat may be located temporarily by provisions of law.” Art. XIII, § 3.
Now, it is fair to assume that the framers of the Con stitution used the term “county seat” in the sense that it was used in prior legislative enactments on the subject, and in the sense in which it had been used in decisions of this court. In Vahlberg v. Keaton, 51 Ark. 540, this court said:
“When the framers of a constitution employ terms which, in legislative and judicial interpretation, have received a definite meaning and application, which may be either more restricted or more general than when employed in other relations, it is a safe rule to give them that signification sanctioned by the legislative and judicial use.”
This is also the meaning of the term when considered in its popular sense; and if we adopt that mode of interpretation, the same result is reached. We conclude, therefore, that the framers of the Constitution, in prescribing the conditions upon which a county seat may be removed, referred to removal from one town to another, and not from one courthouse site to another in the same town. This view of the constitutional provision obviates any inconsistency between that provision and later statutes on the subject of removal and another statute which has been brought forward from the Revised Statutes of 1838 authorizing the county court to “designate the place whereon to erect any county building on any lands belonging to the county at the established seat of justice thereof.”
The next legislation on this subject was an act approved March 2, 1875, which remains in force to this day, and the first section of which reads as follows:
“Unless for the purpose of the temporarily location of county seats in the formation of new counties, it shall be-unlawful to establish or change any county seat in this State without the consent of a majority of the qualified voters of the county to be affected by such change, nor until the place or places at which it is proposed to establish or change any county seat shall be fully designated, such designation embracing a complete and intelligible description of the proposed locations, together with an abstract of title thereto and the terms and conditions upon which the same can be purchased or donated by or to the county. Provided, the county court shall not order the election hereinafter provided for unless it shall be to satisfied that a good and valid title can and will be made to the proposed new locations or one of them.” Kirby’s Digest, § 1115.
Other sections of that act read as follows:
"Before any of the orders of the county court contemplated by section 1121 shall be made, or, if made, before they shall be executed, the vendor or donor of the new location shall make or cause to be made and deliver to the county judge a good and sufficient deed, conveying to the county the land or location so sold or donated in fee simple, without reservation or condition, and also an abstract of the title papers, deeds and conveyances, and assurances by or through which the title thereof is derived, who shall file the same for record in the recorder’s office of such county, to be recorded as other title deeds and papers. Then the place so deeded shall be the permanent county seat, and the title shall be vested in the county.” Kirby’s Digest, § 1122.
“When the deed to the new location shall have been executed and the title vested in the county, as provided in the preceding section, for the purpose and intention of this act, the county court is hereby authorized'and impowered to appoint three discreet citizens as the county commissioners, who shall take an oath to faithfully demean themselves as such, and who, under the orders and directions of the county court in pursuance of the provisions of this act, shall superintend and contract for, in the name and behalf of the county, the clearing, grubbing and laying off such new location into suitable and convenient town lots and the erection or purchase of all needful buildings on such new location, preparatory to the actual removal and change of the county seat.” Kirby’s Digest, § 1123.
In the construction of this statute we should indulge the presumption that, it was meant to conform to the constitutional provision on that subject and to only require an election by the people where it was required by the Constitution, leaving the county court with full power to act in matters not forbidden by the Constitution. It is true the language of this statute is peculiar and somewhat ambiguous in its provision for the designation of the new location, but we are of the opinion that this merely referred to a site for a courthouse in the event of a removal to the town designated. It was not intended as a requirement that there should be a vote of the people before a county court could order a change in the location 'of the courthouse from one lot to another in the same town. The Constitution invests the county court with exclusive original jurisdiction “in all matters relating to county taxes, roads, bridges, ferries, * * * 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.” Art. 7, §28. In view of this broad provision as to the jurisdiction of county courts, it is hardly conceivable that the framers of the Constitution meant, by the provision for removal of county seats, which, we hold, referred to removals from one town to another, to restrict the power of the county court in ordering the removal of the courthouse from one lot to another, which may under some circumstances become immediately a matter of the highest local concern. It would require very^ plain and unambiguous language to force the conclusion that, a restriction in that respect was intended.
The case of Matkin v. Marengo County, 137 Ala. 155, 34 Southern 171, is cited by counsel for appellants in support of their contention, and we find it to be directly in point. The Constitution of Alabama contains the following provision :
“No courthouse or county site shall be removed except by a majority vote of the qualified electors of said county voting at an election held for such purpose.”
The county commissioners attempted to remove the courthouse from its location to another lot in the same town, and citizens attempted to restrain the removal on the ground that it was forbidden by the Constitution except by vote of the people. The court, in denying the petitidn said:
“The construction contended for by counsel for appellants, that ‘courthouse site’ should be held to mean the particular lot upon which the building is erected, is too narrow and unsupported by sound reason, and, if adopted, would likely lead to greater public detriment, in possible cases, than mere inconvenience. Our conclusion is, and we so decide, that it was and is intended by section 41 that no courthouse shall be removed from the town or city where located at the time of the adoption of the Constitution, except as provided in said section, and not that a new courthouse may not be erected within such town or city on a lot other than that upon which the old is located, whenever determined necessary by the court or county commissioners, without first having submitted such question to a vote of the people.” •
Our conclusion, therefore, is that the county court possessed the power to change the site of the courthouse from the school district lot in Fordyce to the proposed location donated by Banks.
It is unnecessary to pass upon the constitutionality of the special statute authorizing the board of commissioners to select a site, for, as the county court had power to make the selection and order a removal to that site, and did so in this instance, it is unnecessary to say whether it must be put upon the authority of the county court or of the special statute.
It is contended that the order of the court entered October 6, 1908, declaring the result of the election and ordering the .removal of the county seat, and the subsequent orders of that court directing the commisssioners to proceed to the construction of the courthouse on the school district lot, could not be set aside at a later term, and that the order of the county court in May, 1911, changing that order was void. The power of the county court over the location of public buildings is a continuing one. It is the same as if the building had been constructed on the school district lot, and afterwards the county court saw fit to dispose of that site arid change to a new location in the town which constituted the county seat. If the county court had the power at all to order a change of the location of the courthouse, it had the power to make this change before the building Was actually constructed as well as to wait until its order was carried out by the construction of the new building and then to order the change. There is nothing in the decision in Walsh v. Hampton, supra, which limits the power of the county court to make a new order with respect to the change of location. In that case we merely held that the order of the court, declaring the result of the election and ordering the removal, was final, and could not be vacated at a subsequent term; but that was a matter over which the county court had no continuing power. After it declared the result of the election and ordered the removal pursuant thereto, its power was exhausted. The difference between the two kinds of judgments lies in the continuing power of the county court over the subject of county buildings, as distinguished from the power to declare the result of an election by the people.
The record shows that the chancellor heard oral testimony, which is not included in the transcript, and it is insisted that for this reason the presumption must be indulged that the decree was correct, and that an affirmance must therefore follow. The decision of the chancellor was incorrect upon the undisputed facts, and can not be aided by any presumption as to the oral testimony. That testimony could only have related to the issue as to which was the more desirable of the proposed sites; but as there was no charge of fraud practiced upon the county court in selecting the new site and ordering the change, that question could not have been material, for the county court had exclusive jurisdiction over the subject, which could not be controlled by the chancery court.
“As a general rule, in all cases involving the iocation, repair, removal and furnishing of county buildings, such as courthouses, jails, and public offices, the court or county commissioners exercise a discretion which can not be controlled by any judicial tribunal, in the absence of fraud, corruption or unfair dealing.” 7 Am. & Eng. Enc. of Law (2 ed.) p. 996.
The remedy of appellants to correct an abuse by the county court of its power in selecting the wrong site was by appeal after making themselves parties to the proceedings in the county court. Bowman v. Frith, 73 Ark. 527.
Our conclusion upon the whole case is that the decree of the chancellor was erroneous, and that it should be reversed with directions to dismiss the complaint for want of equity.
It is so ordered. | [
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Hart, J.
Appellee had his stock of goods insured by the appellant for $500. On June 2,1910, while the policy was still in force, the goods were destroyed by fire. Appellee made the necessary proofs of loss, and forwarded them to appellant; appellant’s adjuster, after making the necessary investigation, agreed to pay the appellee the sum of $423.36 in settlement of the loss. Subsequently appellee made demand upon the appellant for the payment'of'this sum, and, upon refusal of the appellant to pay the same, instituted this action to recover it.
Appellant answered; denying that it owed appellee the amount claimed 'by him, and, as a further defense, set up a breach of certain of the conditions of the policy.' Subsequently appellant filed an amendment to its answer in which it alleged that the appellee owed it the sum of twelve dollars and the accrued interest for a part of the premium' for the policy sued on, and asked that the same be allowed as a credit or set-off against' any amount that might be found to be due appellee. Appellee then filed an amendment to his complaint, in which he admitted that he owed the appellant the premium note of twelve dollars and interest, and asked for judgment in the sum of $423.36 as the amount sued for. The jury returned a verdict for the sum of $423.36. . The court then heard the testimony as to what a reasonable attorney fee would be in the case, allowed eighty-five dollars, and judgment was rendered accordingly. The case is here on appeal.
There was no bill of exceptions filed in the case, and appellant’s counsel only ask for a reversal of the judgment on the ground that the court erred in allowing 12 per cent, penalty and the attorney’s fees under the statute. There was no error in this.
The loss was adjusted, and appellant agreed to pay appellee the sum of $423.36. It refused to pay the same after demand made therefor, and appellee instituted this action to recover it. Appellant answered, denying owing the amount sued for, and setting up alleged breaches of the conditions of the policy. .
When appellant filed its amended answer and claimed as a set-off the amount due it by appellee on the premium note, appellee at once conceded that the amount should be deducted from the amount sued for in his original complaint, and only asked' judgment for the difference, which was $423.36. If appellant wished to avoid the .penalty and attorney’s fee provided for in the statute, it should have offered to confess judgment for that amount; and thus have' ended the suit. It did not do so, but elected to go on and contest the claim of thé ap-. pelíee on other grounds, and' thereby became liable for the penalty and attorney’s fee provided for in the statute when appellee recovered the amount sued for. Industrial Mut. Ind. Co. v. Armstrong, 93 Ark. 84-5; Pacific Mutual Life Ins. Co. v. Carter, 92 Ark. 378; Home Fire Insurance Co. v. Stancell, 94 Ark. 578-83.
Judgment will be affirmed. | [
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Lee Seamster, Chief Justice.
The appellant, Shirley Johnston, and the appellee, Sylvia Johnston (Widener) were married on July 20, 1940. Three children were born to said marriage, Donna Jean, now 7 years of age; Shirley Ann, now 14 years of age; and Walter Ray, now 12 years of age. On December 31, 1949, Shirley Johnston was granted a divorce from Sylvia Johnston. The divorce decree awarded the appellant absolute custody of the three minor children. The appellee agreed in writing that the father should have absolute custody of the three children. Since that date the children have lived in the home of their paternal grandparents, also’ appellants herein.
On March 30, 1954, the appellee filed a petition in Craighead Chancery Court, Western Division, asking that the original divorce decree be modified to give her custody of her three minor children. Upon trial of this cause on April 16, 1955, the chancery court modified its original decree and awarded custody of Donna Jean to the appellee; leaving the custody of Shirley Ann and Walter Ray with the appellant, Shirley Johnston. Appellants have appealed from that portion of the modified decree that awarded custody of Donna Jean to the appellee. The appellee has perfected a cross-appeal from that portion of the modified decree which left custody of the two older children with the appellants.
On appeals, such as this, the case comes to us for trial de novo. The party who seeks the modification of a divorce decree, awarding custody of minor children, assumes the burden of showing such changed conditions as would.justify such modification in the minor’s interests.
It is well established by numerous decisions of our court that before a change in custody is justified, the moving party must show a change in conditions since the initial award and it must appear to be for the best interest of the children. In Thompson v. Thompson, 213 Ark. 595, 212 S. W. 2d 8, we said: “While any order as to custody of a child is subject to future modification by the court making it, the rule, uniformly adhered to by us, is that before such modification may be made it must be shown that, after the making of the original order, there has been such a change in the situation as to require, in the interest of the minor, the change to be made, or it must be shown that material facts affecting the welfare of the child were unknown to the court when the first order was made.”
We said in Kirby v. Kirby, 189 Ark. 937, 75 S. W. 2d 817: “It is the well-settled doctrine in this state that the chancellor, in awarding the custody of an infant child or in modifying such award thereafter, must keep in view primarily the welfare of the child ... A decree fixing the custody of a child, is, however, final on the conditions then existing and should not be changed after-wards unless on altered conditions since the decree, or on material facts existing at the time of the decree but unknown to the court, and then only for the welfare of the child.” See, also, Phelps v. Phelps, 209 Ark. 44, 189 S. W. 2d 617.
In the case at bar the appellee has failed to show any of the above mentioned matters. In 1949, Shirley and Sylvia Johnston were living in their home. Mr. Johnston secured a divorce from his wife, when he discovered that she had become enamored of another man. The testimony shows Mr. Johnston procured the divorce from appellee on the basis of an entry of appearance, signed by appellee, in which she agreed that absolute custody of the three children should be awarded to Mr. Johnston. Since that date, the children have lived in the home of their paternal grandparents.
The appellant, Shirley Johnston, has not remarried and works in St. Louis, Missouri. He spends about every other week end, in addition to his vacations, with .his three children in the home of his parents. Mr. Johnston has made satisfactory arrangements with his parents for the support and maintenance of the children in their home. The grandparents are devoted to the three children and have given them a good home and surroundings, with necessary schooling and proper religious training. Their general fitness to care for the children appears unquestioned. Strong ties of affection have been allowed to develop between the children and the appellants during the 5 years that have elapsed since the appellee voluntarily surrendered custody to the father. The children have developed strong ties of love and affection for each other.
Since the divorce, the appellee has married the man of whom she was enamored. She and her husband now reside in a five room apartment in Chicago, Illinois. This apartment is shared with four relatives of the appellee and her husband. Since the divorce from the appellant, the appellee has visited the children about 3 or 4 times each year. Her visits were of a short duration, most of the time for only 30 or 40 minutes. Until the present suit was filed, appellee made no formal complaint as to the care and treatment these children were receiving at the hands of their father and grandparents.
After a careful review of the testimony, we find no substantial change in conditions affecting the welfare of these children, since custody was awarded appellant. The facts and circumstances in the instant case do not warrant the conclusion that appellants are unfit persons to have custody of Donna Jean. The chancellor recognized this by allowing the father to retain custody of the two older children. Both appellant and the grandparents are apparently able to furnish a suitable home for the three children. Unless exceptional circumstances are involved, this court has indicated that young children should not be separated from each other by dividing their custody. See Vilas v. Vilas, 184 Ark. 352, 42 S. W. 2d 379. Under all the circumstances, we have concluded that the permanent welfare of the children would be best served by allowing appellants to have custody of all three children.
The appellee shall have at all times the right of reasonable visitation. She will have to win back, if she can, the affection and respect of the children. The ap pellants will be ordered not to interfere with the mother’s efforts in this respect or in any other way, so long as appellee conducts herself in a proper manner.
We affirm that portion of the modified decree that allows the appellant to retain custody of the two older children. That part of the modified decree awarding custody of Donna Jean to the appellee is accordingly reversed and the cause remanded with directions to award such custody to the appellant, Shirley Johnston. | [
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Minor W. Millwee, Associate Justice.
This is a suit by appellant, De Vore Farms, Inc., to restrain appellee, Butler Hunting Club Inc., from maintaining a dam across a bayou which allegedly obstructed the natural flow of said bayou and proper drainage of appellant’s lands. Appellant also alleged that its lands had been rendered valueless for the purpose of growing timber, and damages in the sum of $20,000.00 were asked for merchantable timber already destroyed by reason of the flooding of its lands.
In its answer, appellee admitted maintenance of the dam upon its lands since 1938 but denied that it held water on appellant’s lands or that any timber belonging to appellant had been destroyed by reason of the construe tion and maintenance of said dam. After an extended hearing the chancellor determined these factual issues in appellee’s favor and, in the decree dismissing appellant ’s complaint, found: ‘ ‘ The court finds that the plaintiff has failed to establish by a preponderance of the testimony that the excess water complained of by plaintiff was caused by the act of defendant in constructing and maintaining its dam. The court further finds that the plaintiff has failed to establish by a preponderance of the testimony that damages alleged by the plaintiff were caused by the acts of the defendant.”. The sole issue is whether these findings are against the preponderance of the evidence.
Mill Bayou is a shallow, sluggish, non-navigable stream which runs in a southernly direction from a point near Almyra in Arkansas County until it flows into Big Bayou Meto about three miles above the point where that stream empties into the Arkansas River. The bottom lands through which Mill Bayou flows have an average width of about 2,000 feet and are generally lower in elevation than the adjacent countryside. There are approximately 20 dams in the area between Almyra and the point where Mill Bayou flows into Big Bayou Meto and the bottom lands are used primarily for duck hunting purposes and are unsuitable for general farming purposes.
Appellee is a Mississippi corporation licensed to do business in Arkansas and owns 600 acres in Arkansas County which it uses primarily for duck hunting purposes. Mill Bayou runs south through the 600-acre tract near its center. Appellant is an Arkansas corporation engaged in farming operations consisting of the growth of cattle, rice and oats. It owns 780 acres which it purchased in 1937. About one-half of said tract lies west of and adjacent to appellee’s land and the other one-half lies northwest of appellee’s lands. Mill Bayou traverses only a small portion of appellant’s lands on the northeast corner and before it enters lands belonging to others which lie between the lands of the parties. Appellant’s lands lie immediately below Bullock’s Levee which is on a county highway that crosses Mill Bayou on the extreme northeast corner of appellant’s land.
In. 1939 appellee constructed a dam, or levee, along and just above tbe south line of its lands. The dam' is about 2,000 feet long and begins at a point west of Mill Bayou and runs east across the main channel of the bayou and over the bottom lands east of the bayou. A drain pipe and floodgate were originally installed in the dam to control the water level but were abandoned in 1940 making the dam solid to the east end where the water flowed through a natural spillway between the end of the dam and higher ground further east. In the spring of 1953, a section of the east end of the dam 140 feet long-washed out. In August, 1953, appellee replaced the washed out section by extending- it in a northeasterly direction instead of due east as the original section ran. Appellant then filed the instant suit on November 28, 1953.
In an effort to sustain the allegations of its complaint, appellant introduced the testimony of W. J. and N. J. DeVore, manager and president, respectively, of appellant; also the testimony of Thomas J. Frickie, a consulting engineer, and H. L. Frank, a timber cruiser. Their testimony was generally to the effect that appellee’s dam caused water to back upon appellant’s bottom lands lying near Mill Bayou and a mile or more northwest of appellee’s dam, resulting in the destruction of merchantable timber growing on said lands; and that the spillway of appellee’s dam was inadequate to allow proper drainage of appellant’s lands particularly after replacement of the east end of the dam in 1953. Other witnesses, who were employed by or tenants of the appellant, testified they had seen water higher on the north side of the dam than on the south side at different times, and had also observed dead timber on appellant’s land as well as on other lands along the bayou.
W. J. DeVore testified that a considerable portion of appellant’s bottom lands had flooded from year to year for “quite a while,” and that the water was getting-higher each year. He thought appellee’s dam kept water on appellant’s land and destroyed its timber; also that the new extension on the east end of the dam was located on the site of the old spillway, which resulted in water being held higher and longer on appellant’s lands than formerly. He stated that he complained when the dam was first constructed but did nothing about it until appellee constructed the new extension without a proper spillway. He admitted the existence of a dam on appellant’s land which a former owner built for duck hunting purposes. Although he had wished “it wasn’t there,” he had done nothing to it except build a fence on it in one place. According to N. J. DeVore, his brother told him sometime after 1938 that too much timber was dying, and he took some water levels to determine the cause of the timber dying but “dropped the subject” at that time. He admitted that timber died on appellant’s hill lands as well as in the bottoms in 1954 and thought timber died “a little each year.” He also said that nobody cleared the lands in Mill Bayou Bottoms for farming purposes, and that said lands were used principally for duck hunting purposes.
Engineer Frickie made a survey in August, 1954 to determine elevations in the spillway area of appellee’s dam and at certain points where dead timber was found on appellant’s lands. He concluded that the spillway maintained by appellee afforded inadequate drainage to lands to the north, causing the timber to die. He started his survey from a government bench mark two miles northwest of the dam but took no elevations on the east side of the bayou. He thought the present spillway was higher than originally and found neither a depression nor a slough in the present spillway area. He introduced a plat upon which he noted a “timber damage line” established by his survey but did not survey the bayou which he thought ran straight as shown on the plat. Based on his assumption that the depression caused by the 1953 washout was a part of the old spillway, he thought that spillway afforded a 40% greater area for drainage and discharge purposes than the new spillway. He admitted the lands in question were normally flooded in the spring and winter months in the absence of a dam and had seen lands in the dam area flooded to an elevation of nearly 15 feet.
H. L. Frank cruised, the timber on appellant’s lands in November, 1953. On direct examination he testified that he found 68,000 feet of dead timber which he thought had died within three years and would have been worth $15.00 per thousand as green timber. "When questioned by the court, he stated that he could not say what percentage of the timber had died within the past three or four years.
In opposition to the foregoing evidence, appellee introduced the testimony of T. J. Strode, County Surveyor of Arkansas County, and engineer John P. Powers, who made an extensive survey of all the lands in question on both sides of the bayou as well as other lands below appellee’s dam and including lands in the dam area of Gillette Hunting Club which is located 3% miles south of appellee’s dam. They took elevations in Mill Bayou and at numerous places over all the lands including the dam and spillway area and bottom lands of the appellant. Detailed plats of the survey were introduced which showed that all the elevations on appellant’s lands where dead timber was found were considerably higher than the spillway at the oast end of appellee’s dam except in two sloughs and in one of these the dam on appellant’s land was holding water in the slough. They started their survey at two government bench marks near the spillway which Friekie did not find. Strode used “Mean Sea Level” while Friekie used “Gulf Sea Level” in establishing elevations, which may have accounted for the slight differences in elevation found by each in the spillway area. Strode found the spillway of the Gillette Hunting Club dam considerably higher than the spillway in appellee’s dam and saw water running upstream from the Gillette dam over appellee’s dam in August, 1954.
Appellee also introduced evidence of the different elevations of waters held against the floodgate on Big Bayou Meto about 18 miles below appellee’s dam over a period of several years as disclosed by records of the U. S. Engineers. According to Strode, these records and the elevations of the Gillette dam definitely show that waters were held on the Gillette and Butler Hunting Club lands and the lands of appellant by this floodgate for such .long periods as to kill the timber on the lands of all three. It was the considered opinion of both Strode and Powers that appellee’s dam did not back or hold water on appellant’s lands nor contribute to the destruction of timber on said lands. They also testified that appellee’s natural spillway was the type ordinarily used in the area with certain advantages over an artificial spillway and was entirely adequate. They also stoutly disputed the testimony of Frickie to the effect that there was no depression or slough in appellee’s spillway area and his assumption that the washed out section of the dam was a part of the old spillway. According to Strode, the replacement of the washed out portion in 1953 by extending it in a northeasterly direction increased the width of the spillway area and rendered it more efficient than as originally constructed in 1939.
The testimony of Strode and Powers was corroborated by that of several parties living in the vicinity who owned or farmed lands adjacent to the lands of appellant or lands lying between the lands of the parties. Their testimony was to the effect that water from appellee’s dam did not flood either their own lands or those of the appellant; that all the bottom lands were normally flooded every year from January until June; that timber had been dying in the area as long as they could remember; and that the small amount of green timber in the area is unmerchantable.
There is no dispute as to the applicable law. Whether the natural flow or reasonable use doctrine of the riparian theory be applied, it is well settled by our decisions that one riparian owner along a non-navigable stream has no right to obstruct or interfere with the natural course of said stream to the detriment or damage of other riparian owners. Turner v. Smith, 217 Ark. 441, 231 S. W. 2d 110; Thomas v. La Cotts, 222 Ark. 171, 257 S. W. 2d 936; Harris v. Brooks, 225 Ark. 436, 283 S. W. 2d 129. As previously indicated, the question whether the construction and maintenance of the dam by appellee flooded appellant’s lands and destroyed its tim ber is purely factual. While the testimony on this issue is conflicting, a careful consideration of the entire record convinces us that the surveys and observations by Strode and Powers for appellee were more comprehensive, detailed and perhaps more accurate than those presented by appellant. Their findings were corroborated by other farmers and landowners in the area similarly situated. The chancellor had the advantage over us of hearing and observing the witnesses, and we are unwilling to say his findings are against the preponderance of the evidence.
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Minor W. Millwee, Associate Justice.
Appellant, Marvin Maples, ivas charged with second degree murder in the killing of Hugh Craighead. Upon a trial be fore the court sitting as a jury, under Ark. Stats. See. 43-2108, appellant was found guilty of manslaughter and his punishment fixed at 3 years in the penitentiary.
The killing occurred at the home of appellant at 1005 Allis Street in Little Rock, Ai'kansas, about 7 p. m. on July 31, 1954. According to three of appellant’s close neighbors, who testified for the State, the deceased drove in front of appellant’s home, walked upon the porch and knocked on the front door. Appellant came out on the porch for a short period and then went back in the house. A somewhat lengthy and noisy argument took place. Deceased started to leave and then walked back and was opening the outside front screen door when he was shot in the right side of the head with a shotgun at close range and fell backwards on the porch with his feet near the threshold and the open screen door resting against his left leg. Deceased was unarmed and the State’s eyewitnesses observed no overt act on his part to do bodily harm to appellant or other inmates of the residence.
Several photographs made immediately after the shooting were introduced by the State without objection. They show blood, brain tissue and other particles of flesh from deceased’s skull and scalp on both the floor and ceiling of the porch and in the front yard. The major portion of deceased’s brain was lying in the front yard about 15 feet from the body. According to one of the photographs and the testimony of the deputy coroner and police officers, no blood or human tissue appeared on the inside of the house nor was there any other evidence of a. struggle there.
Appellant and his wife testified that deceased cursed and threatened to kill both of them when appellant went out on the porch; and that appellant jerked away from deceased, reentered the house and fastened the screen door. When appellant started to a back room to get his gun, deceased started choking and beating Mrs. Maples and had her head between his legs choking her when appellant returned with the loaded shotgun and shot deceased while the latter was standing about 2 or 3 feet inside the house still choking Mrs. Maples. Although they testified that deceased was a stranger to them, appellant identified deceased as the step-father of Betty Jean Moore, a girl who lived with appellant seven or eight years. Appellant further stated that deceased told him he had come, “to get revenge for Betty Jean Moore.” Neither the State nor appellant sought to further develop the nature of the relationship of the parties or the cause of the apparent had feeling existing between them. While Mrs. Maples testified that deceased inflicted scratches and bruises on her face, she admitted that a photograph taken immediately after the killing failed to reveal such injuries.
The sole contention for reversal is that the judgment is not supported by any substantial evidence. It is argued that the undisputed evidence shows, as a matter of law, that the killing was justified on the ground of self defense and more particularly in the necessary defense of appellant’s home under Ark. Stats. Sec. 41-2234. This statute provides: “A manifest attempt and endeavor, in a violent, riotous, or tumultuous manner, to enter the habitation of another, for the purpose of assaulting or offering personal violence to any person, dwelling or being therein, shall be a justification of homicide.”
In reference to this statute in Brown v. State, 55 Ark. 593, 18 S. W. 1051, the court said: “Following the doctrine of the common law, the statute regards the violent attempt to enter the house as equivalent to an assault upon the person to be injured; and when it is obviously about to be made, he may at once put himself in an attitude to repel the aggressor. It was not practicable to give a rule applicable to all cases for determining what acts or conduct will constitute the actual attempt to enter a house. But it must be a “manifest” attempt; and we take this to mean one so plainly made that no reasonable doubt will exist as to the purpose of the aggressor. At what point the effort to enter the house has begun, and how far it may be permitted to proceed with safety to the life or person of the individual assailed^ must be determined by the circumstances of each case. And these are questions more of fact than of law.”
In commenting on the Brown case in the opinion in Hall v. State, 113 Ark. 454, 168 S. W. 1122, Judge Hart, speaking for the court, said: “In the case of Brown v. State, supra, the court held that an attack upon a man’s dwelling is regarded in law as equivalent to an assault upon his person, and that in order to justify a killing in defense of one’s house, or of the inmates thereof, it is not necessary that there should he actual danger, provided the defendant acts upon a reasonable apprehension of danger. But the court further said that it is the duty of the householder to prevent the entry by means not fatal, if he can do so consistently with his own safety. So it may be said that if the defendant kills where there are no reasonable grounds of apprehension of danger it is manslaughter; and if the killing is done with malice, express or implied, it is murder. Even though the deceased is attempting at the time unlawfully to enter the defendant’s dwelling house, if the killing is with malice and ill will, and not for self-protection or the protection of the house, it is murder. See State v. Scheele, 57 Conn. 307, 14 Am. St. Rep. 106. For, as it is there said, ‘the law of self-defense, or the defense of one’s domicile, does not require the giving to evil-minded persons an opportunity to take the life of another on such easy terms.’ ”
Under our settled rule the trial court, sitting as a jury, is the sole judge of the credibility of the witnesses, and in determining the sufficiency of the evidence to support a verdict or judgment of conviction on appeal, we view it in the light most favorable to the State. Cook v. State, 196 Ark. 1133, 121 S. W. 2d 87. Of course, if the trial court was bound to accept the testimony of appellant and his wife as true, the killing was in necessary defense of both person and habitation. On the other hand, if the court believed the testimony of appellant’s neighbors, as corroborated by that of the officers and the physical facts so vividly portrayed by the photographs, then the evidence was substantial and sufficient to sustain a conviction for a higher degree of homicide' than manslaughter. In cases involving similar conflicts in the evidence, we have held that the fact finders were fully warranted in finding that the killing or assault was done with, malice or ill will and not in defense of the defendant’s person or place of residence. Bealmear v. State, 104 Ark. 616, 150 S. W. 129; Davis v. State, 206 Ark. 726, 177 S. W. 2d 190.
Affirmed. | [
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WAYMOND M. BROWN, Judge.
| iMack Lundy brings this appeal from the decree of the Faulkner County Circuit Court granting Sandy Lundy an absolute divorce on the ground of general indignities. Appellant challenges the court’s finding that appellee proved her ground for divorce. We reverse and dismiss.
The parties were married on October 30, 2012, and separated in June 2013. Appel-lee filed a complaint for divorce on June 27, 2013, on the ground of general indignities. She alleged in the complaint that appellant had “offered such indignities to the person of the plaintiff as to render plaintiffs condition in life intolerable.” The divorce decree was filed on October 24, 2013. Appellant filed a timely notice of appeal on November 22, 2013.
|2We review domestic-relations cases de novo on the record, but we will not reverse the circuit court’s findings unless they are clearly erroneous. A circuit court’s finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire record is left with a definite and firm conviction that a mistake has been committed. We give due deference to the superior position of the circuit court to view and judge the credibility of the witnesses.
Divorce is a creature of statute and can only be granted upon proof of a statutory ground. Appellee sued appellant for divorce on the ground of general indignities. In order to obtain a divorce on this ground, the plaintiff must show a habitual, continuous, permanent, and pláin manifestation of settled hate, alienation, and estrangement on the part of one spouse, sufficient to render the condition of the other intolerable. Such manifestations may consist of rudeness, unmerited reproach, contempt, studied neglect, and open insult. Mere uncongeniality and quarrelsomeness, without more, are not sufficient to sustain a charge of indignities. Additionally, testimony by the plaintiff and corroborating witnesses that is 13merely general or conclusory in nature is not sufficient. The circuit court’s finding of general indignities must be based on factual testimony and proof of specific acts and language showing the rudeness, contempt, and indignities complained of.
It is true that a petition for divorce will not be granted on the testimony of the complainant alone; even if the defendant admits the allegations, the testimony or admission must be corroborated by other evidence to establish the truth of the assertion. The purpose of this rule is to prevent the parties from obtaining a divorce through collusion; therefore, when it is plain that there is no collusion, the corroboration may be slight.
Appellee testified that she wanted a divorce from appellant because he was overbearing, and wanted to discipline her by having a court commit her somewhere. Appellee stated that appellant was angry because she would not allow him to be a part of her counseling sessions to deal with the death of her father. According to appellee, appellant threatened to bum her collection of The Waltons, which she watched for calming reasons. She also stated that appellant thought she was stupid, and that the decorations in the house were stupid. She stated that appellant quoted Bible verses to her and said that she was not a Christian because she sought counseling for her depression. Ap-pellee testified that appellant had made her feel inadequate and belittled for quite a while, especially since the end of March. She recounted |4that appellant met her in the parking lot after one of her counseling sessions and told her that they needed to talk. According to appellee, appellant wanted to have her committed because he was angry that she did not want him to come to the sessions with her. She stated that appellant’s role in the marriage was that “he was the man of the house and that [she] needed to remember that.” She said that all of these things made her life with him intolerable.
Debbie Davis, appellee’s sister, testified that appellee’s demeanor had changed since she married appellant. According to Davis, appellee is sad, nervous, and scared. She admitted that she did not witness any discord between the parties. However, she stated that she would sometimes talk to appellee after an argument. Davis said that appellee kept telling her that she was scared, and that appellee informed her about the incident when appellant was in the parking lot after appellee’s therapy session. On cross-examination, Davis reiterated that she had gotten all of her information from appellee.
Even if we recognize appellee’s testimony as sufficient to establish grounds for divorce, she has failed to provide any proof corroborating those grounds. The evidence presented at the divorce hearing was not enough to support the granting of a divorce on the ground of general indignities. We are mindful of our supreme court’s decision in Coker v. Coker, holding that the requisite slight-corroborative evidence had been provided. However, the |,.facts in this case are distinguishable. In Coker, the wife’s mother testified that she witnessed the husband being rude, inattentive, and acting as if he did not care one way or the other about appellee. Additionally, other evidence led to an inference .of general indignities. Here, Davis’s testimony was based on what appellee told her, not what she witnessed. Further, there was no other evidence tending to show general indignities on the part of appellant. Thus, there was not the requisite slight-corroboration necessary to establish the truth of appellee’s assertion of general indignities. Accordingly, we reverse and dismiss.
Reversed and dismissed.
WHITEAKER and HIXSON, JJ., agree.
. Hunter v. Haunert, 101 Ark.App. 93, 270 S.W.3d 339 (2007).
. Id.
. Id.
. Gunnell v. Gunnell, 30 Ark.App. 4, 780 S.W.2d 597 (1989).
. See Ark.Code Ann. § 9-12-301 (b)(3)(C) (Repl.2009).
. Poore v. Poore, 76 Ark.App. 99, 61 S.W.3d 912 (2001).
. See Pomraning v. Pomraning, 13 Ark.App. 258, 682 S.W.2d 775 (1985).
.Poore, supra.
. See Dee v. Dee, 99 Ark.App. 159, 258 S.W.3d 405 (2007); Harpole v. Harpole, 10 Ark.App. 298, 664 S.W.2d 480 (1984); Copeland v. Copeland, 2 Ark.App. 55, 616 S.W.2d 773 (1981).
. Poore, supra (quoting Bell v. Bell, 105 Ark. 194, 150 S.W. 1031 (1912)).
. Moore v. Davidson, 85 Ark.App. 104, 145 S.W.3d 833 (2004).
. Id.
. 2012 Ark. 383, 423 S.W.3d 599.
. Evidence of general indignities included: appellant’s rudeness, unmerited reproach, studied neglect; appellant’s purchases of adult novelties, gifts, hotel bills and other charges which provided some inference that he was engaged in studied neglect, open insult, and alienation and estrangement; appellant’s misuse of marital funds; and his long-term adulterous relationship, even after he committed to end it and to repair the marriage, constituted "settled hate.” | [
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ROBERT J. GLADWIN, Chief Judge.
| lAppellant Roberto Jaramillo appeals from the January 21, 2014 decision of the Arkansas Workers’ Compensation Commission that reversed and dismissed the September 18, 2013 opinion of the Administrative Law Judge (ALJ) and found that appellant failed to establish by a preponderance of the evidence that his umbilical hernia is the compensable consequence of a work-related incident of September 7, 2008. Appellant argues that the Commission again erred in finding that he failed to prove that he suffered a compensable injury and in finding that appellee Systems Contracting is not responsible for workers’ compensation benefits associated therewith. We find no error and affirm.
|;)On September 7, 2008, appellant fell at work when a forklift swung a heavy pipe into his feet, knocking him backwards. Appellant maintains that when he reported this incident to his supervisor, he was placed on light duty. Appellant denies that he was ever offered medical treatment by appellee and claims that he could not seek contemporaneous medical treatment because a lay-off shortly after the incident caused him to lose his private health insurance.
The record reveals that appellant first sought medical treatment for his alleged injury on August 4, 2009. Records from the Regional Medical Center at Memphis reveal that he reported to the emergency room on that date, complaining of chest, abdomen, and pelvic pain. An emergency room triage report indicates that appellant reported injuring his left shoulder six months earlier as the result of a work-related accident. Numerous diagnostic studies taken during appellant’s brief hospital stay showed no acute findings in appellant’s pelvic, abdominal, or chest areas. Observed by these studies, however, were the following chronic conditions: cardiome-galy with left-ventricular hypertrophy; cholelithiasis without evidence of cholecys-titis; and, diverticulosis without evidence of diverticulitis. Further, a small umbilical hernia comprised of fatty tissue was noted. Appellant’s discharge instructions, dated August 5, 2009, reveal that he was instructed to follow-up with the surgery center for a consultation in two weeks concerning elective hernia-repair surgery.
Appellant maintains that he was discharged by appellee following his August 4, 2009 trip to the emergency room. Appellant agreed, however, that he worked for appellee after the September 7, 2008 incident up until that time, subject to periods of lay-off.
|sThe record reflects that appellant returned to the Regional Medical Center Medplex clinic on September 3, 2009. Notes from that encounter indicate that appellant presented with complaints of intermittent, sharp, stabbing, abdominal pain. These notes also show that appellant’s umbilical hernia was small, non-tender to palpation, and “always reducible.” Appellant was instructed to lose weight, then return to the Medplex clinic in two-to-three months for further surgical evaluation. In the meantime, appellant was advised to seek medical attention if his hernia became irreducible or painful, or if he became symptomatic. Appellant also was scheduled for an evaluation with a urologist.
A Medplex clinic note dated November 12, 2009, shows that appellant was assessed with a testicular mass in addition to his hernia. Upon his January 19, 2010 follow-up appointment at the Medplex clinic, it was noted that he would need a referral from a primary-care provider for his urology appointment. A clinic note dated March 25, 2010, shows that appellant was scheduled at the GT clinic for a colo-noscopy on April 20, 2010. The report of that study reflects that appellant’s colonos-copy confirmed the presence of diverticulo-sis in his descending colon, as well as multiple, small hyperplastic rectal polyps.
Notes from the Medplex clinic dated April 27, 2010, reflect that appellant still complained of chronic pain, which his examining physician, Dr. Henry, described as “vague and diffuse in distribution.”
On June 4, 2010, appellant presented to the emergency room of St. Bernard’s Medical Center for chronic neck and back pain. Corresponding medical records reflect that he was prescribed methocarbanol, predni- soné, and tramádol, and instructed to follow-up in clinic.
14Puring the hearing before the Commission on June 21, 2018, appellant testified that when the metal pipe struck his work boots from behind, he flipped in the air then slammed down shoulder first onto the concrete floor. Appellant stated that he experienced an immediate sensation upon impact, like water running in his body. In spite of medical reports indicating that his hernia was asymptomatic as of August 4, 2009, and probably preexisting, appellant alleges that all of his physical complaints, including pain in his abdomen, began on September 7, 2008. Appellant stated that he still experiences constant pain in his shoulders and neck, as well as pain in his feet.
According to appellant, this combined pain prevents him from working. He attributes “four or five open areas in his body” to two ribs he says were broken in the September 2008 accident, in spite of the fact that diagnostic studies have repeatedly failed to show acute findings in his shoulder, abdomen, neck, or elsewhere. Appellant also claims to have out-of-place discs in his back due to this incident. Finally, he believes that his enlarged heart resulted from the close proximity of his broken ribs to his heart.
The ALJ filed an opinion on September 18, 2013, finding that appellant proved that his umbilical hernia is the compensable consequence of the work-related incident of September 7, 2008, but the Commission reversed the ALJ decision in its January 21, 2014 opinion. The Commission found that appellant failed to prove by a preponderance of the evidence that his hernia resulted from the work-related incident of September 7, 2008.
When reviewing a decision of the Workers’ Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the | ^findings of the Commission, and we affirm that decision if it is supported by substantial evidence. Kimble v. Labor Force, Inc., 2013 Ark. App. 601, 430 S.W.3d 156. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. We will not reverse the Commission’s decision unless we are convinced that fair-minded persons with the same facts before them could not have reached the conclusions arrived at by the Commission. Id. It is the function of the Commission to determine the credibility of witnesses and the weight to be given their testimony. Id.
Arkansas Code Annotated section ll-9-523(a) (Repl.2002) provides:
(a) In all cases of claims for hernia, it shall be shown to the satisfaction of the Workers’ Compensation Commission:
(1) That the occurrence of the hernia immediately followed as the result of sudden effort, severe strain, or the application of force directly to the abdominal wall;
(2) That there was severe pain in the hernial region;
(3) That the pain caused the employee to cease work immediately;
(4) That notice of the occurrence was given to the employer within forty-eight (48) hours thereafter; and,
(5) That the physical distress following the occurrence of the hernia was such as to require the attendance of a licensed physician within seventy-two (72) hours after the occurrence.
The Commission noted that, in adults, excessive abdominal pressure can cause an umbilical hernia. Accordingly, obesity is a common cause of umbilical hernias in adults. The Commission also noted appel lant’s own admission that he is a “very heavy” adult and that his weight attributed to a delay in the surgical repair of his umbilical hernia.
The Commission based its decision that appellant failed to prove that his umbilical hernia was a compensable injury on several aspects of section ll-9-523(a). First, the occurrence of the herniá must have immediately followed the alleged accident “as the result Rof sudden effort, severe strain, or the application of force directly to the abdominal wall.” The Commission disagreed with the ALJ’s finding that appellant, who weighed at or above 287 pounds, was “flipped in the air and landed on a concrete surface floor, after being struck from behind by a pipe on forklift.” Although appellant was morbidly obese at the time of his accident, we agree with the Commission that the broad assumption by the ALJ does not satisfy the requirements of section 11-9-528. Other than his own self-serving testimony, appellant provided no clear proof of the exact mechanics of his fall or the amount of force exerted when his shoulder connected with the floor. Moreover, appellant testified that he fell on his neck and shoulder — no reference was made regarding force applied directly to appellant’s abdominal wall. Further, none of his treating physicians opined that the hernia was caused by an acute, work-related accident. It does not necessarily follow that a fall by someone obese automatically results in a hernia.
Because appellant waited several months before seeking medical attention for his alleged, work-related injury, the record is devoid of credible, objective medical proof to substantiate that his hernia resulted from his fall at work on September 7, 2008. Diagnostic testing conducted at Regional Medical Center at Memphis in August 2009 revealed no acute findings. Moreover, appellant did not present to the emergency room at that time with abdominal complaints; instead, he reported only that he hurt his left shoulder when he fell at work almost a year earlier.
Appellant’s abdominal CT scan did confirm, among other conditions, an umbilical hernia consisting of fatty tissue, for which his physician recommended he be assessed for ^elective surgery following his discharge from the hospital. However, appellant’s August 5, 2009 discharge summary clearly indicates that he suffered from “no acute injury.” There is also no indication from these medical records that appellant’s hernia was symptomatic at that time.
Accordingly, we affirm the Commission’s finding that appellant failed to satisfy the statutory requirement that he prove that the occurrence of his hernia immediately folio wed his accident, specifically as the result of the application of force directly to his abdominal wall. The Commission found that the weight of the credible evidence, including the medical records, shows that in the course of testing for acute injuries associated with his fall of September 2008, emergency medical staff discovered that appellant suffered from several chronic conditions, including the umbilical hernia at issue in this appeal.
Although appellant reported that his physical distress following the alleged occurrence of his hernia was such as to require the attendance of a licensed physician within seventy-two hours after the occurrence, as required by the statute, the undisputable fact is that he did not seek medical treatment for almost a year following the accident. During that time, appellant continued to work for appellee, subject to periods of lay-off, without any medical assistance for ten more months, seven days a week and for ten-to-twelve hours a day.
We agree with the Commission’s finding that appellant’s medical records do not support that his hernia-related symptoms are debilitating in the sense anticipated by Arkansas Code. Annotated section 11-9-523(a)(5). Reasonable minds can safely conclude that had | ¡¡appellant suffered a hernia injury as anticipated by our statute, he would have neither continued to work for the next ten months nor delayed medical treatment during that time.
Based upon this evidence, we are satisfied that substantial evidence supports the decision of the Commission. Accordingly, we affirm.
Affirmed.
PITTMAN and WYNNE, JJ„ agree.
. On March 7, 2012, this court affirmed the July 11, 2011 decision of the Commission that reversed the March 9, 2011 opinion of the AU and found that appellant failed to establish by a preponderance of the evidence that he sustained a compensable injury to his back, neck, ribs, knees, or left shoulder as a result of the same incident at issue here. The issue of compensability of appellant's umbilical hernia was specifically reserved by agreement of the parties. See Jaramillo v. Sys. Contracting, 2012 Ark. App. 200, 2012 WL 723281. | [
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PER CURIAM.
_[jOn June 27, 2005, judgment was entered in the Crittenden County Circuit Court reflecting that appellant Rodney W. McClanton had entered a plea of guilty to the sale or delivery of a controlled substance and sentenced as a habitual offender to 120 months’ imprisonment in Case No. 18CR-05-151. Imposition of an additional senten'ce of 180 months’ imprisonment was suspended.
On July 11, 2012, the State moved to revoke the suspended sentence, and appellant entered a plea of guilty to having •violated the terms of the suspended sentence in Case No. 18CR-05-151. He also entered a plea of guilty to robbery and being a felon in possession of a firearm in a separate case, No. 18CR-12-741. He was sentenced to 360 months’ imprisonment as a habitual offender in Case No. 18CR-05-151. In Case No. 18CR-12-741, imposition of a 240-month sentence on each count was suspended.
On March 21, 2014, appellant filed in the trial court in Case No. 18CR-05-151 a pro se petition to correct the sentence imposed in 2012 on revocation of the suspended 2005 sentence. |2The petition was filed pursuant to Arkansas Code Annotated section 16-90-111 (Supp.2006). He alleged in the petition that his attorneys only spoke with him briefly before he was rushed into entering the plea in 2012 and that the evidence was not sufficient to sustain the judgment of conviction.
The trial court denied the petition, and appellant lodged an appeal here from the order. Appellant now asks for appointment of counsel to represent him on appeal and an extension of time to file his brief-in-chief. As it is clear from the record that appellant could not prevail on appeal, the appeal is dismissed, and the motions are moot. An appeal from an order that denied a petition for postconviction relief, including an appeal from an order that pertained to a petition under section 16-90-111, will not be permitted to go forward where it is clear that there is no merit to the appeal. Moore v. State, 2014 Ark. 281, 2014 WL 2019280 (per curiam).
Appellant’s claim that he was not properly advised by his attorneys and hurried into pleading guilty was a claim of ineffective assistance of counsel that was cognizable under our postconviction rule, Arkansas Rule of Criminal Procedure 37.1 (2012). 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). To the extent that a claim is cognizable under the Rule, section 16-90-111 has been superseded, and any allegation that can be considered under Rule 37.1 is subject to the time limitations contained in the Rule. Id.
Pursuant to Rule 37.2, where an appellant entered a plea of guilty, a petition must be filed within ninety days of the date that the judgment was entered-of-reeord. Ark. R.Crim. P. |s37.2(c)(i) (2012). 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). The petition in the instant ease was not timely filed because appellant filed it more than ninety days after the judgment had been entered of record in 2012; accordingly, the trial court had no jurisdiction to grant the relief sought. When the lower court lacks jurisdiction, the appellate court also lacks jurisdiction. Ussery, 2014 Ark. 186, 2014 WL 1673818.
Even if considered under the provision in section 16-90-111 that allows the trial court to correct an illegal sentence at any time, appellant was entitled to no relief. Appellant did not claim that the sentences imposed were outside the statutory range for the offense. Rather, appellant argued that the sentences imposed were illegal because the evidence was not sufficient to sustain the judgment. Generally, with few exceptions not applicable to the present case, by pleading guilty, appellant waived any claim that the evidence was insufficient to support the charge. See Thacker v. State, 2012 Ark. 205, 2012 WL 1631782 (per curiam).
While a claim that a sentence is illegal presents an issue of subject-matter jurisdiction that can be addressed at any time, Skinner v. Hobbs, 2011 Ark. 383, 2011 WL 4397020 (per curiam), the claim, as advanced in appellant’s petition, did not allege an illegal sentence of the type that is jurisdictional in nature. Instead, the ground for relief raised in appellant’s petition was of the type that should have been raised in the trial court, or, to the degree that the allegation concerned whether counsel was effective with respect to counsel’s advice to appellant in the guilty-plea proceeding, in a petition for postconvietion relief pursuant to Rule 37.1. Allegations concerning the sufficiency of the evidence that constitute a challenge to a sentence, which is within the statutory grange, are properly made at trial. See Gardner v. Hobbs, 2014 Ark. 346, 439 S.W.3d 663 (per curiam). Section 16-90-111 did not provide a means to attack a sentence on the grounds of whether the evidence was sufficient to sustain the judgment or mere trial error. See Ussery, 2014 Ark. 186, 2014 WL 1673818.
Appeal dismissed; motions moot. | [
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RHONDA K. WOOD, Judge.
|,The circuit court adjudicated Lashonda Goodwin’s child dependent-neglected. Goodwin appeals from the court’s adjudication order. Because the court’s findings are not clearly against the preponderance of the evidence, we affirm the adjudication order.
Goodwin, 23-years old, gave birth to M.G. in November 2013. The Department of Human Services (DHS) exercised a hold ón M.G. after Goodwin reported to hospital staff that she had lost custody of her other children, had a history of depression, had not taken her medication, and had unstable living arrangements. At the adjudication hearing, Goodwin testified to the following facts: (1) she had four other children besides M.G. but did not have custody of any of them; (2) the State of Ohio had terminated her rights to at least one of the children, Ma.G., after he was born weighing one pound, seven ounces; (3) another child, X.G., was taken by the State of Arkansas, then returned, only for Ohio to |2“come and get [sic] him”; (4) the longest she had custody of any of her children was seven months; (5) she had a six-year-old daughter living with an “Auntie,” but she had not had contact with her in over a year because “Auntie” changed the phone number; (6) two weeks before the hearing, she had moved in with her stepbrother and his wife in a two-bedroom apartment; and (7) she was not employed, and food stamps were her only source of income.
DHS’s family-service worker testified that she had not visited Goodwin’s new apartment because Goodwin had just moved in right before the hearing. The worker also testified that no home study had been conducted on the father, Michael Lewis, because he had just been released from jail and was awaiting a court date on a revocation charge; thus, he could not pass a home study. In her defense, Goodwin testified that she would be able to keep and care for M.G., unlike her other children, because she had a support network in Arkansas consisting of her stepbrother, her stepbrother’s wife, and M.G.’s father.
The court adjudicated M.G. dependent-neglected based on Goodwin’s admission that she had lost custody of her other children, her diagnosis for depression, and her unstable housing and income.
In dependency-neglect cases, the standard of review on appeal is de novo, but we do not reverse the court’s findings unless they are clearly erroneous or clearly against the preponderance of the evidence. Moiser v. Ark. Dep’t of Human Servs., 95 Ark.App. 32, 233 S.W.3d 172 (2006). A finding is clearly erroneous when, although there is evidence to | ^support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Eason v. Ark. Dep’t of Human Servs., 2012 Ark. App. 507, 423 S.W.3d 138.
At a dependency-neglect adjudication hearing, DHS has to prove the allegations in the petition by the preponderance of the evidence. Ark.Code Ann. §§ 9-27-325(h)(2)(B); 9-27-327(a)(l) (Supp. 2013). A dependent-neglected juvenile is one “who is at substantial risk of serious harm as a result of the following acts or omissions to the juvenile, a sibling, or another juvenile: (i) abandonment; (ii) abuse; (iii) sexual abuse; (iv) sexual exploitation; (v) neglect; (vi) parental unfitness; or (vii) being present in a dwelling or structure during the manufacturing of methamphetamine with the knowledge of his or her parent, guardian, or custodian.” Ark.Code Ann. § 9-27-303(18)(A). Neglect is defined in the Juvenile Code and can mean, among other things, an act or omission by the parent that constitutes a “failure to take reasonable action to protect the juvenile from ... parental unfitness when the existence of this condition was known or should have been known.” Ark.Code Ann. § 9-27-303(36)(A)(iii). “The statutory definition of a neglected child does not require proof of actual harm or impairment having been experienced by the child. The term ‘substantial risk’ speaks in terms of future harm.” Maynard v. Ark. Dep’t of Human Servs., 2011 Ark. App. 82, at 7, 389 S.W.3d 627, 630. At an adjudication hearing, the focus is on the child, not the parent. Seago v. Ark. Dep’t of Human Servs., 2009 Ark. App. 767, 360 S.W.3d 733.
Here, the court adjudicated M.G. dependent-neglected because Goodwin’s rights to another child had been terminated and because of Goodwin’s unstable housing and hincóme. Goodwin argues that these findings are clearly against the preponderance of the evidence. First, Goodwin argues that DHS offered no evidence that her other children, M.G.’s siblings, were ever subjected to a substantial risk of serious harm. Second, she argues that she had stable housing because she was living with her stepbrother; she also points out that she was receiving assistance in the form of food stamps
Goodwin’s arguments lack merit. For one thing, Goodwin admitted at the adjudication hearing that her parental rights to at least one of her children had been terminated by the State of Ohio. Her attorney argued at the hearing, and also argues on appeal, that DHS should have proved this fact with written documentation and, citing Arkansas Rule of Evidence 901 (2013), maintains that Goodwin’s testimony is not the best evidence of her history in other child-welfare cases. This argument is misplaced for two reasons. First, Rule 901 concerns authentication and identification of evidence; it has nothing to do with the best-evidence rule, which resides in Rule 1002. Second, the best-evidence rule applies only when a party tries to prove the content of a writing. But here, DHS was trying to establish the existence of a past fact — that is, that Goodwin’s rights to another child had been terminated. Of course, a document or writing from an Ohio court could have demonstrated this fact. But there is no rule that prohibits Goodwin’s own | ^testimony from demon-strafing this fact too. Indeed, Goodwin can testify to any fact within her personal knowledge. Ark. R. Evid. 602. And the question whether her rights to any of her children had been terminated surely resides within her personal experience.
Summing up this point: Goodwin’s admission that her rights to one of her children had been terminated, that other states had taken another child into custody, and that she did not have custody of any of her children is sufficient to show by a preponderance of the evidence that M.G. is at substantial risk of serious harm because of neglect or parental unfitness.
In addition to Goodwin’s admitted history of parental unfitness, the court found by a preponderance of the evidence that Goodwin had unstable housing. Supporting this was Goodwin’s testimony about living in Arkansas, then Ohio, and now living back in Arkansas. Goodwin also testified that she had moved again two weeks before the hearing. Her current living arrangement, where she is staying with her stepbrother, supports the court’s finding that Goodwin tends to be incapable of living on her own and supporting herself. The court also had a sufficient basis to find that her income was unstable based on her testimony that she did not have a job and that her sole source of income was food stamps.
|6All in all, the circuit court was faced with a mother who does not have custody of her other four children. At least one loss of custody resulted from termination. In order to prevent the next child, M.G., from suffering serious harm, the court made the decision to adjudicate the child dependent-neglected. As stated previously, the focus is on the child and the potential harm to that child. Seago, supra. This is not to say that once a parent’s rights to a child have been terminated, the rest of her children are automatically dependent-neglected. Rather, based on these particular facts, the court’s dependency-neglect ruling is not clearly against the preponderance of the evidence after considering Goodwin’s history of parental unfitness, unstable housing, and her current inability to support herself. A dependency-neglect case will give Goodwin an opportunity, under supervision, to demonstrate whether she has changed and can potentially raise M.G. in the future.
Based on this record, we hold that the court’s dependency-neglect finding is not clearly against the preponderance of the evidence and affirm the adjudication order. Affirmed.
GLADWIN, C.J., and HARRISON, WYNNE, and GLOVER, JJ„ agree.
BROWN, J., dissents.
. This was for violating probation on a residential-burglary charge.
. The court was also concerned with Goodwin's diagnosis for depression. But there was no evidence that this diagnosis inhibited her parental abilities or could otherwise cause future harm to M.G.
. "To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as . otherwise provide by these rules or by [rules adopted by the Supreme Court of this state or by] statute.” Ark. R. Evid. 1002.
.See, e.g., Lin Mfg. Co. of Ark. v. Courson, 246 Ark. 5, 8, 436 S.W.2d 472, 474 (1969) ("There is a distinction between proving a fact which has been put in writing and proving the writing itself. Because a fact has been described in writing does not exclude other proof of the fact.”).
. We are hopeful that during the pendency of this case, DHS will display better preparedness than it displayed at this hearing. It would have been helpful to the trial court and our court on appeal had DHS sought and obtained the records concerning the mother’s past interactions with the states of Arkansas, Ohio, and Michigan regarding her other children. | [
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BILL H. WALMSLEY, Judge.
| ¶ Appellant Ralph Trezza appeals the decision of the Arkansas Workers’ Compensation Commission that he failed to prove a compensable injury because he was not performing employment services at the time of his injury. The sole issue on appeal is whether substantial evidence supports the Commission’s decision. We affirm.
Appellant was a truck driver for appel-lee USA Truck. He testified in a hearing before the administrative law judge (ALJ) that on October 22, 2011, he injured his right ankle at appellee’s West Memphis terminal. Appellant testified that he parked his truck at the terminal at about 9:45 a.m., made a change in his logbook from “driving” to “off-duty,” and got out to go to the bathroom. Appellant said that he stumbled or stepped incorrectly, which caused his ankle to “bend over” and him to fall. Appellant eventually continued inside to the bathroom, and he then called his friend and fellow truck driver, Roger Jag-gers, and his dispatcher, Brandon Hudson, and told them about his injury.
^Appellant did not want to see a doctor at that point because he was hoping his ankle was merely sprained. Appellant said that he stayed with his truck all day at the terminal and spent the night in his truck. He said he was responsible for his truck at all times, but he was not required to sit with his truck. He was on a “thirty-four hour restart,” which meant he was restarting his clock for the number of hours he could drive in a week; thus, he was not going to perform any job functions for at least thirty-four hours after going off-duty at 9:45 the morning of his injury. Appellant said that he stayed with his truck on October 23 and drove it to a Mexican restaurant next to the terminal that night. He said that his truck had already been disconnected from his trailer for work on a tire issue. Appellant said that if he wanted to he could stay in a hotel room, but appellee did not pay for one so he slept in his truck.
The ALJ found that appellant sustained a compensable injury and awarded temporary total-disability benefits and medical expenses. USA Truck appealed to the Commission, which reversed the decision of the ALJ and denied and dismissed the claim. The Commission determined that appellant did not prove by a preponderance of the evidence that he had sustained a compensable injury because he was not performing employment services at the time of the alleged injury. The Commission noted that appellant had changed his status to “off-duty,” had completed his employment services for the day, and did not intend to perform any more job functions that day. The Commission found that, at the time of the accident, he was not doing anything required by his employer or carrying out the employer’s purpose or advancing the employer’s interest, directly or indirectly. Appellant now appeals |3the Commission’s decision.
When reviewing a decision of the Workers’ Compensation Commission, the court of appeals views the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission. Cook v. ABF Freight Sys., Inc., 88 Ark.App. 86, 194 S.W.3d 794 (2004). This court must affirm the decision of the Commission if it is supported by substantial evidence. Id. Substantial evidence is that evidence which a reasonable mind might accept as adequate to support a conclusion of the Commission. Id. The issue on appeal is not whether the appellate court might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission’s conclusion, the appellate court must affirm its decision. Id.
A compensable injury includes an accidental injury causing internal or external physical harm to the body arising out of and in the course of employment and which requires medical services or results in disability or death. Ark.Code Ann. § 11 — 9—102(4)(A)(i) (Repl.2012). A com-pensable injury does not include an injury which was inflicted upon the employee at a time when employment services were not being performed. Ark.Code Ann. § 11-9-102(4)(B)(iii). The supreme court has interpreted the term “employment services” as performance of something that is generally required by an employer. Cook, supra. We use the same test to determine whether an employee was performing “employment services” as we do when determining whether an employee was acting within “the course of employment.” Id. The test is whether the injury occurred within the time and space boundaries of the employment, when the employee was carrying out the employer’s purpose |4or advancing the employer’s interest directly or indirectly. Id.
Appellant argues that at the time of his injury he was performing a variety of tasks that were directly or indirectly advancing his employer’s interest. First, he contends that his supervision of his truck at the terminal advanced appellee’s interest because the truck could have been damaged during the time he was not driving it and he would be held responsible if anything happened to it. He also claims that he advanced appellee’s interest by stopping at the terminal because maintenance was performed on his trailer while he was there. Lastly, he contends that he was benefiting appellee by taking his mandated thirty-four restart so that he could continue driving for appellee.
In Cook, supra, Cook drove a fixed overnight route from Little Rock to Dallas for ABF, and due to a required eight-hour rest break, he was not permitted to return to Little Rock until the next day. ABF made motel reservations for its drivers and paid for the rooms, although drivers were not required to stay at the motel. Drivers were expected to be “on call,” but they were not on the clock and could leave the motel. Cook stayed the night at the motel and was injured the following morning as he was turning on the light in the motel bathroom. This court affirmed the Commission’s finding that Cook was not performing employment services at the time of his injury. We held that Cook’s entry into the bathroom to attend to his own personal needs did not arise within the course of employment because he was off the clock and taking a mandated eight-hour overnight rest break.
Here, appellant’s work day had ended when he was injured because he had logged “off-duty” and did not intend to perform any further job functions for thirty-four hours. | [Appellant was not taking a necessary bathroom break so that he could return to his work duties; instead, he was off work and not required to do anything. Although he was responsible for his truck being secure, he was not required to sit with or sleep in his truck. Furthermore, although appellant testified that his truck had been disconnected from his trailer for maintenance purposes before the evening of October 23, there was no evidence that this occurred around the time of his injury. Viewing the evidence in the light most favorable to the findings of the Commission, we hold that reasonable minds could reach the Commission’s conclusion that appellant failed to prove his injury arose in the course of his employment.
Appellant also argues that he should be considered a “residential employee” of his truck, and as such, he was performing employment services at the time of his injury by virtue of his presence on the premises. Appellant cites Jivan v. Economy Inn & Suites, 370 Ark. 414, 260 S.W.3d 281 (2007), but that case is distinguishable because appellant was not required to live in his truck and was not always “on call.” Appellant also cites Toia v. HTI Logistics, 100 Ark.App. 314, 268 S.W.3d 334 (2007), where a truck driver was injured climbing back into his truck to retire for the night because he could not deliver his load until the following morning. We held that Toia had returned to the “premises” of his employment, his truck, when he was checking his truck and then climbing back in. Here, however, appellant’s injury did not occur in his truck and was not related to sleeping in his truck. We hold that substantial evidence supports the Commission’s decision that appellant failed to prove he was injured in the course of his employment.
Affirmed.
PITTMAN and HIXSON, JJ., agree. | [
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Lyle Brown, Justice.
Appellee E. Arthur Thomas sustained damages in a vehicular collision. He obtained judgment against his insurer, appellant Northwestern National Casualty Company, for his medical bills and car repairs. It is appellant’s contention that it had validly cancelled the policy prior to the accident. Whether or not the attempted cancellation was effective is the question on appeal.
Appellee was a distributor for the Arkansas Gazette in the Russellville area and owned two automobiles, a Ford and an Opel. He purchased a Northwestern passenger automobile policy through a local agency. The policy was for six months beginning September 23, 1968. It included comprehensive and collision coverage on the Opel but not on the Ford. Appellee utilized the company’s budget plan of payment whereby he paid one-half the premium with the issuance of the policy and agreed that he could be billed for the balance sixty days thereafter. On November 5 of the same year, appellee ordered a rider for his policy in order to add comprehensive and collision coverage on the Ford; he had that protection with another company but that policy expired. The additional premium was $19.00, which appellee agreed to pay when the endorsement was delivered.
Payment for the endorsement was not timely made (allegedly due to an oversight of appellee’s wife), whereupon appellant purportedly sent notice to appellee by certified mail advising him that unless it received the $19.00 fee by 12:01 a.m. on December 6, his policy would thereafter be ineffective. Appellee testified he did not receive the notice; be that as it may, he did not remit within the time fixed in the notice. On that same day, December 6, at approximately 5:00 p.m., appellee was involved in an accident which gave rise to the injuries and damages. He was driving his Opel station wagon. Appellant denied liability, contending the policy had lapsed for appellee’s failure to remit the premium for the Ford endorsement. The additional installment payment on the original policy was not yet due and played no part in the cancellation. In fact the initial payment was sufficient to keep the original policy in force for at least three months.
Appellant advances three arguments to support its contention that the cancellation was in all respects valid; however, it is our view that the notice of intent to cancel did not comply with the cancellation clause and therefore the policy was in effect at the time of the accident. Our view in that respect requires that we discuss only the one point of appellant namely, that cancellation occurred at 12:01 a.m. on December 6.
The determinative provision in the cancellation clause in the policy reads: “This policy may be can-celled by the company by mailing to the insured * * * written notice stating when not less than ten days thereafter such cancellation shall be effective.’’ When we interpret that clause, particularly in a light most favorable to the insured, the sensible conclusion is that he had ten days after the mailing of the notice within which to pay for the endorsement of November 5. In other words his policy remained in force for an additional ten calendar days. The notice is said to have been mailed on November 26. That date is not to be counted in computing the ten-day grace period allowed by the contract. Couch on Insurance 2d § 67-162 states the rule thusly:
Where the cancellation notice is not to be effective as of a specified date but as of a period of time after the notice, questions arise as to the manner of calculating or computing the beginning and end of the notice period, and it has been held that the first day should be excluded and the last day included in computing time under a notice of cancellation. And this means midnight of the last day, where the policy reads ‘five days from the receipt of notice,’ even though the policy itself runs from noon to noon. So, it is held that the cancellation will take effect in 5 days after receipt of the notice, although noon of the fourth is specified as the expiration of the time.
The same rule is found in 157 A. L. K., page 1156, and in Massachusetts Bonding & Ins. Co. v. Home Life & Accident Co., 119 Ark. 102, 178 S. W. 514 (1915), we computed the time by excluding the first day and including the last day. Excluding November 26 and counting ten full days following, the notice could not affect appellee’s policy before midnight, December 6.
There was another proviso in the cancellation clause which provided that “[T]he effective date and hour of cancellation stated in the notice shall become the end of the policy period.” Pursuant to that provision the insurer inserted in the notice that the policy would be considered cancelled as of 12:01 on December 6. That insertion would reduce the grace period to nine days and to that extent is of course in conflict with the ten-day recited provision. Appellant cannot use the “effective date and hour” provision to reduce the ten-day grace period.
We allow an additional attorney’s fee of $250.
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Frank Holt, Justice.
The appellant, Blanche Wood, was charged by information with the crime of cruelty to a child. Ark. Stat. Ann § 41-1105 (Repl. 1964). A jury imposed a $100 fine and three months’ jail sentence with a recommendation that the jail sentence be suspended. The trial court accordingly rendered judgment on that verdict. In a separate proceeding the circuit court upheld the action of the County Juvenile Court finding that the two adopted children of appellants, Blanche and Herman Wood, were dependent and neglected children and its order removing them from their custody. The two separate cases are consolidated for appeal purposes.
We first discuss the appeal relating to child abuse. For reversal appellant, Blanche Wood, contends that the trial court erred in refusing to grant her a change of venue. In support of her motion, she submitted the affidavits of five persons to the'"éffect that appellant could not receive a fair and impartial trial in Polk County. The state presented oral evidence to the contrary from eight witnesses which was followed by rebuttal testimony of five witnesses for appellant. This procedure is provided for in Ark. Stat. Ann. § 43-1501 et seq. (Repl. 1964). A practicing attorney and a former sheriff were among appellant’s witnesses who testified that a hostile public feeling existed throughout the county against appellant. The appellant also submitted evidence relating to radio broadcasts and published news articles in support of her contention that public prejudice existed. One exhibit is a newspaper column entitled “Stargazing” in which the writer in effect condemns child abuse and commends the county judge for his corrective efforts. Appellant’s name is not mentioned. Another exhibit is a newspaper report factually relating to the transfer of the child abuse case from municipal to circuit court. Another exhibit is a newspaper article reciting that a petition was filed in the county court seeking to remove the children from the custody of both appellants. It quoted the strong feelings expressed by the county judge on the subject of child abuse.
In contradiction the state presented witnesses who had an extensive or countywide acquaintance. They consisted of two car dealers, the administrator of the Polk County Memorial Hospital, a farmer, the operator of a public garage, a rural resident for appoximately 22 years, the manager of the local radio station, and a photographer who was a longtime resident of the county. According to them the appellant could be accorded a fair and impartial trial by a jury selected in that county. Further, on cross-examination, one of appellant’s witnesses stated: “From what I have heard others say, I believe she could obtain h fair trial, yes, sir.”
It was proper procedure for the court to receive oral testimony to support the position of either the defendant or the state. Bailey v. State, 204 Ark. 376, 163 S. W. 2d 141 (1942); Trotter and Harris v. State, 237 Ark. 820, 377 S. W. 2d 14 (1964). We have often said that unless the trial court abuses its discretion when it overrules a motion for a change of venue the court’s order is conclusive on appeal. Meyer v. State, 218 Ark. 440, 236 S. W. 2d 996 (1951); Perry and Coggins v. State, 232 Ark. 959, 342 S. W. 2d 95 (1961); Lauderdale v. State, 233 Ark. 96, 343 S. W. 2d 422 (1961). In Bailey v. State, supra, we stated:
“* * * the presumption of law is that a defendant can get a fair and impartial trial in the county in which the offense was committed, and that in order to overcome this presump don the defendant must show clearly that this cannot be done. Indeed, a change of venue in a criminal prosecution must be deemed a wrong to the public unless the necessities of justice to the accused require it, and before a court is justified in sustaining an application therefor on account of the prejudice of the inhabitants of the county, it must affirmatively appear that there is such a feeling of prejudice prevailing in the community as will be reasonably certain to prevent a fair and impartial trial.”
In the case at bar, the trial court observed:
“Now, based upon the evidence that I have heard, I don’t think anybody could conscientiously say that I have heard evidence which affirmatively shows me that there is such a feeling of prejudice prevailing in this community as would be reasonably certain to prevent a fair and impartial trial. To the contrary, the preponderance of the evidence shows me that she can receive a fair trial. Hence, the motion for change of venue is denied, and the defendants exceptions to the ruling of the court are noted of record.”
When we apply our well established rules of law respecting appellant’s motion for a change of venue, we cannot say that the trial court abused its discretion in refusing appellant’s motion.
Appellant next contends that the trial court erred in allowing testimony of other whippings or cruel punishment which occurred prior to the alleged offense upon Mary Wood on March 14, 1969. Mary, appellant’s adopted daughter, is 14 years of age and in the eighth grade. She testified that before she left for school on March 14, her mother became angry with her about the toaster, her clothing, and leaving a protractor at school and administered three separate beatings with a strap. There was evidence that the whippings consisted of 20 to 50 licks across her back, shoulders, and arms. According to the medical and photographic evidence and testimony of witnesses who observed the girl’s condition, her back was bruished and swollen with bleeding underneath the skin and blood would ooze from the outer edges of the wounds when pressure was applied. She also testified that on the previous day her mother had strapped her and hit her on the head with a dull object. She exhibited scars from scalp wounds which she attributed to her mother. The court permitted Mary, her brother, Don, 12 years of age, and others to testify about these and other prior acts of appellant mistreating her over a period of time dating back several years, or to when she was in the third grade.
Appellant argues that the incident of March 14 was the “gravamen” of the offense alleged in the information, that the testimony regarding previous mistreatment had no connection with the alleged offense on that date, and that the other offenses “were so remote as to be irrelevant.” We cannot agree. Appellant was charged with violating § 41-1105. It will be noted that an element of this statute requires proof of habitual cruel mistreatment. It was, therefore, proper to introduce previous acts of misconduct to meet this requirement. Furthermore, the court instructed the jury whenever such evidence was introduced, as well as in its final instruction, that the jury should consider this evidence only for the purpose of showing appellant’s intent, motive, habit or practice.
Appellant cannot claim surprise or prejudice on account of this evidence. The appellant, in her motion for a bill of particulars, asked that the prosecuting attorney “[sjtate the alleged facts and incidents of habitually and cruelly mistreating and when and where.” To which the state responded that it planned “to show numerous acts occurring within the previous five or six years — beatings.” Nor was it error for the state to allege acts of cruelty in the disjunctive. The information merely copies the wording of the statute and does not allege more than one separate and distinct offense. In Harris v. State, 259 Ark. 771, 394 S. W. 2d 135 (1965), we said: “* * * An indictment or information, except as provided in Ark. Stat. Ann. § 43-1010 (Repl. 1964) our joinder statute, must charge only one offense, however, if it could have been committed by different modes and means the indictment or information may allege the modes and means in the alternative. Ark. Stat. Ann. § 43-1009. (Repl. 1964).” We further said: “* * * The rule of inadmissibility of other crimes has no application when other crimes are an inseparable part of the alleged crime. If crimes are mingled to such an extent that they form an indivisible transaction and the full proof of any one of them cannot be presented without showing the others, then evidence of any or all of them is admissible against a defendant on trial for any of fense which is itself a detail of the whole criminal scheme.”
It is firmly established that evidence of other crimes similar in nature to the offense being tried and not too remote is admissible as bearine UDon intent, motive, habit and practice. Hummel v. State, 210 Ark. 471, 196 S. W. 2d 594 (1946); Roach v. State, 222 Ark. 738, 262 S. W. 2d 647 (1953). In child abuse cases, such as incest and carnal abuse, we have held that the state may show other acts of misconduct perpetrated upon the child. Adams v. State, 78 Ark. 16, 92 S. W. 1123 (1906); Williams v. State, 156 Ark. 205, 246 S. W. 503 (1922). In Adams v. State, supra, we approved evidence that tended to prove incestuous conduct which commenced 6 to 7 years before the defendant was charged and that it continued up to the time of the alleged offense. See, also, Roach v. State, supra; Ward v. State, 236 Ark. 878, 370 S. W. 2d 425 (1963). In the case at bar we are of the view that previous acts of cruelty or mistreatment were admissible evidence as being in conformity with the terms of the statute as well as our cases on this subject.
The appellant next contends that the trial court erred in refusing to admit evidence and to give instructions on the right of the appellant, as a parent, to chastise her daughter tor infractions. As to the evidence, we do not find that the trial court refused any evidence offered by the appellant on her right to correct her daughter. In fact, the appellant and her husband and other witnesses were allowed to present testimony that both the boy and the girl were “problem children” and to detail instances of their incorrigible conduct consisting of lying, stealing, disrespect, and disobedience. It is fair to say that the theme of appellant’s rejected instructions is that a parent is not responsible for punishment inflicted upon a child which is merely excessive or immoderate and, further, that it was incumbent upon the state to prove that the parent acted with a wicked or malicious purpose and not in the exercise of acceptable authority. Appellant cites cases from other jurisdictions and none from ours.
Appellee, the state, relies upon § 41-1105 and argues that this statute requires the state to prove the element of cruelty as contended by appellant. This statute obviously precludes a conviction where the parent merely used bad judgment. It appears that the appellant’s theory was fully presented to the juy when the court read the statute and then, by its Instruction No. 8, restricted consideration of the case to acts of cruelty or habitual mistreatment. The two adopted children described these acts of mistreatment by the appellant, which evidence the jury could believe as it apparently did. The appellant and her witnesses categorically denied the testimony of the children. Appellant presented evidence that she and her husband had provided love and a good Christian home, and had spent large sums of money on the children in an effort to be good parents. There is evidence that appellant is suffering from a terminal cancer as a result of a radical breast operation which would make it impossible for her to wield a rope, a slat, a strap, or any other object to inflict corporal punishment. Both parents claim that the extent of any punishment administered by them was to require the children to take certain physical exercise to which they objected. However, the appellant herself admitted that she required the two children to administer punishment to each other because she “couldn’t punish them.” We are of the view that the issues were fairly presented to the jury based upon instructions given by the court.
Next appellant asserts that the court erred in giving its Instruction No. 6 which covered matters not in eluded in the evidence nor the information. It appears appellant is referring to that part of the instruction which refers to depriving a child of necessary food, clothing or shelter. This instruction follows verbatim the statute alleged to have been violated. We have often held that an instruction which, in effect, is a reading of the statute alleged to have been violated and which is applicable to the facts of the case is proper. Graham v. State, 202 Ark. 981, 154 S. W. 2d 584 (1941); Stard v. State, 204 Ark. 247, 161 S. W. 2d 756 (1942). By Instruction No. 8 the court properly defined that part of the statute which is applicable to the facts in the case-at bar. Omitted, as an element of the alleged offense, was any reference to depriving appellant’s child of necessary food, clothing or shelter. Therefore, we find no merit in appellant’s contention.
Appellant next contends that she should be granted a new trial on newly discovered evidence as shown by a “petition filed herein.” This petition was filed in this court two months subsequent to the transcript being filed. Pursuant to our rules we denied the filing of the petition. Although we cannot consider this petition, we observe that this is without prejudice to the appellant to properly present this motion to the trial court.
We next discuss the appeal of Blanche and Herman Wood from the judgment of the circuit court affirming the order of the juvenile court in removing their two adopted children from appellants’ home. On March 14, 1969, the same date that appellant, Blanche Wood, was charged with child cruelty, a petition was filed in the county juvenile court by two members of the Polk County School Board alleging that Mary and Don Wood were dependent or neglected children and asking that they be removed from the custody of their parents. The appellants assert that the proceedings in the juvenile court were void ab initio because appellants were not made and named parties defendants and were not served with summons as required by § 45-210 et seq. It appears that both appellants and their address were named in the original petition; that two subpoenas, not included in the record, were issued “to appear and testify”; that a copy of the temporary order was served upon appellant Herman Wood, the father; that on March 25, 1969 the children appeared in the juvenile court and testimony was adduced from 12 witnesses, including the children; that appellants were present and refused the offer to testify or produce evidence; that their attorney, who accompanied them, cross-examined the witnesses produced by the petitioners; that the appellants appealed from the order of the juvenile court to the circuit court; and that on April 23, 1969 the appellants filed an intervention denying each and every material allegation contained in the original petition filed in juvenile court. On May 16, 1969, or the day following the criminal trial, the circuit court conducted a hearing on the appeal from the juvenile court order. Should we say, which we do not, that the proceedings in the juvenile court were void ab initio, the appellants are in no position to complain. They were present and represented by counsel on their intervention in the circuit court proceedings. This was a trial de novo upon the merits of the case and the appellants are in no position to invoke any jurisdictional defects, if such existed, in the juvenile court proceedings.
Nor can we agree with appellants that the evidence was insufficient to sustain the finding and order of the circuit court which affirmed the action of the juvenile court removing the children from the custody of the appellants. The court had before it, by agreement of the parties, the testimony that had been presented the previous two days in the trial of the criminal case relating to the habitual mistreatment of the children by the appellants. The children again repeated their testimony that their mother had beaten Mary with a hose, a board, a rope, and a strap and that the father had never attempted to stop this mistreatment except on one occasion when the mother was attempting to choke Mary. The children testified that they had to wear discarded or used clothes to their embarrassment; that they were required to eat at a separate table and that when they refused to eat certain food, they would get a beating; that the mother would call Mary opprobrious names and use curse words. There was other evidence detailing offensive treatment that is unnecessary to mention. According to the school officials the children had average intelligence but they were two to three years behind their achievement tests. Both were making failing grades in most of their subjects. One official testified that one of the problems with Mary was her stealing and telling lies. He further testified that the appellant, Blanche Wood, became angry with him when he refused her request to administer corporal punishment to Mary in front of her classmates. Don testified that his mother required him to eat cigarette filters found in the dog pen when she suspected that he had been smoking. Two county school board members, who are the petitioners, testified that they had observed Mary Wood on March 14th and that she had been severely or brutally beaten with some sort of strap or other object. As in the criminal proceeding, the appellants denied any mistreatment or neglect of their children. Appellants presented evidence that they had always provided a proper home, care and affectionate parental attention- to their children. The evidence is in conflict and we cannot say that it is insufficient to sustain the action of the trial court.
We find no error in the proceedings in either case and both judgments are affirmed. | [
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W. B. Putman, Special Justice.
This action was filed in May of 1965 by fifteen taxpayers of Conway County, Arkansas, against the appellee, Marlin Hawkins, Sheriff and Collector of Conway County since 1951, seeking an accounting for magistrate court cash bonds placed in his hands during the years 1955 through 1961. A demurrer to the complaint was sustained by the trial court on the theory, among others, that the complaint showed on its face that the cause was barred by limitations. On appeal this Court reversed and remanded, Brewer v. Hawkins, 241 Ark. 460, 408 S. W. 2d 492 (1966), after which the complaint was amended to seek an accounting for the years 1954 through 1966.
At the close of the plaintiffs’ case in chief, the lower court ruled that the three-year statute of limitations, Ark. Stat., § 37-206, foreclosed an accounting for the years prior to 1963 and that state police tickets and daily reports which had been offered by the plaintiffs to show the amount of cash bonds posted with the Sheriff during the periods for which the Sheriff’s receipt books were not available, were not admissible for that purpose.
After the presentation of the defendant’s case in chief and rebuttal and surrebuttal evidence, a final decree was entered holding that appellee Hawkins had failed to account completely for the years 1963, 1964, 1965 and 1966, and a judgment was entered against Hawkins in the amount of $10,082.20. By subsequent order this amount was reduced by allowing additional credits totaling $2,188.94.
From this decree the taxpayers have appealed, assigning as error the ruling of the chancellor on the statute of limitations and his rejection as evidence of the state police tickets and daily reports. Hawkins has cross-appealed from the judgment against him, asserting that the trial judge should have sustained in its entirety his motion to dismiss filed at the end of the plaintiffs’ case in chief.
It was the theory of appellee in filing his motion to dismiss as to the years barred by limitations, that appellants had failed to prove any fraud or concealment on the part of the appellee which would toll the statute of limitations, hence no accounting could be required for the periods prior to three years before the filing of suit. With this the chancellor evidently agreed, and the motion was granted. We believe that in so doing, he committed error.
Irrespective of how it was styled, appellee’s motion at the end of appellants’ case in chief directed to the matter of limitations was designed to test the legal sufficiency of the evidence on that point, as provided in Ark. Stat. § 27-1729. It has long been established that in passing on a demurrer to the evidence, it is the trial court’s duty to give the evidence its strongest probative force in favor of the party against whom the demurrer has been filed and to rule against that party only if his evidence, when so considered, fails to make a prima facie case. Werbe v. Holt, 217 Ark. 198, 229 S. W. 2d 225 (1950).
Jack Stone, a former Arkansas State Trooper, testified that while stationed in Morrilton between 1954 and 1959, he had on occasion seen the appellee, a justice of the peace who handled most of the magistrate court business in Conway County, and the justice of the peace’s brother filling out the official justice of the peace transcripts (from which the County General Ledger is copied in the County Clerk’s office). According to Stone, appellee would read the names of persons who had been arrested and the charges against them from his official receipt book, and the justice of the peace and his brother would enter the names on the transcript forms. However, Stone testified, the charges shown on the transcript were frequently either a single or a number of lesser offenses than those with which the person was originally charged. Likewise the amounts of money entered in the transcript would vary from the amount in the Sheriff’s receipt book. Usually the fine was shown to be one dollar.
Appellants also called to the stand a number of people who testified about their actual experiences when charged in magistrate court in Conway County, Some of these witnesses testified that they were charged with certain offenses and posted bonds of certain amounts, but an examination of the County General Ledger, pertinent volumes of which were received in evidence, revealed that the magistrate court transcript showed them to have been charged with lesser offenses and to have paid nominal fines.
Harry Frese, a certified public accountant, testified that he had made a comprehensive examination of the relevant county records and had found numerous instances in which there were substantial differences in the offenses charged and the money reported on the County General Ledger and records showing receipts by the Sheriff.
Appellee argues, however, that there could be no fraudulent concealment because the discrepancies were readily apparent from an examination of two separate county records, i, e., the County General Ledger (or justice of the peace transcripts) and the Sheriff’s receipt book. Public records give constructive notice of facts stated therein, it is claimed. This argument, however, overlooks the fiduciary nature of the office of sheriff. A public office is a public trust, and funds officially received are trust funds. Fidelity & Deposit Co. v. Cowan, 184 Ark. 75, 41 S. W. 2d 748 (1931). When such a relationship of trust and confidence exists, it is the duty of the trustee to disclose the true facts and constructive knowledge of fraud is not charged to the public simply because it may be discovered by a meticulous search of public records. 54 C. J. S. Limitation of Actions, Sec. 189(b). See also, Locust Creek Drainage Dist. No. 2 v. Seay, 190 Ark. 739, 81 S. W. 2d 835 (1935).
We hold that a prima facie case was made and that the question of fraudulent concealment was one to be determined after a hearing and weighing of all the evidence.
To prove the amount of money received by appellee as cash bonds, appellants offered in evidence the re ceipt books kept by appellee as Sheriff. No such receipt books could be found, however, for the period prior to December 21, 1962, and in an effort to establish the cash bonds received by the Sheriff during this time, appellants offered in evidence State Police Tickets and daily reports. Until June 30, 1957, daily reports were required to be submitted by state troopers, including the disposition of all cases in which they had made the arrest. After June 30, 1957, daily reports were discontinued, and only weekly reports were required, but with each such report were sent in copies of tickets issued by the troopers with the disposition of the cases indicated in a space provided for that purpose. The source of the information might be personal observation, the court, or the person who took the bond.
The lower court sustained appellee’s objection to ttiese tickets and daily reports, and this is assigned by appellants as error.
It is appellants’ theory that in the absence of the best evidence, the receipt books, the tickets and daily reports are admissible as business records under Ark. Stat. §28-928.
The language of the Arkansas statute is the same as that of the Federal Business Records Act, 28 U. S. C. A. 1732(a), and the “Model Act” from which both were taken. In the leading case of Hoffman v. Palmer, 129 F. 2d 976 (2 Cir. 1942), affd. 318 U. S. 109, 63 S. Ct. 477, the history of this statutory exception to the hearsay rule and the reasons justifying it are thoroughly explored. The Act was designed to relieve the problems arising from the strictness of the common law rule which requires each clerk or bookkeeper involved in. a transaction to be called or accounted for, thus frequently rendering inadmissible in court records upon which the mercantile and industrial world regularly relies. But the admission in evidence of business memoranda to prove the truth of their contents can be justified only if the circumstances of their making are such as to demonstrate an inherent probability of trustworthiness. As with all exceptions to the hearsay rule, the test of admissibility is “some special greater-than-average reliability in the evidence covered by the exception . . . Leflar, Theory of Evidential Admissibility — Statements Made Out of Court, 2 Ark. L. Rev. 26, 37.
We do not believe that the tickets and reports in question were made under circumstances that create a likelihood of trustworthiness and reliability.
Appellants called six members of the Arkansas State Police to testify concerning the tickets and daily reports, five of whom had been stationed in Conway County. The sixth was the head of the Traffic Records Section. It is apparent from an examination of their testimony that virtually all of them considered the disposition section of their tickets and daily reports highly unreliable. They were only infrequently made from personal knowledge, and virtually never checked for accuracy. The disposition reports served only to gather statistical information of no interest to the state police for the benefit of other departments of state government. Not only were the troopers not motivated to accuracy, but it is apparent that deliberate falsification of the tickets and reports was not uncommon. There was testimony of incidents of state troopers copying tickets actually issued by city police or sheriff’s deputies, apparently in an effort to impress their superiors with their diligence. No efforts were made by the troopers to correct misinformation resulting from the lowering or refunding of bonds, the dismissal of charges or appeal and reversal of convictions. Records so cavalierly kept and patently unreliable cannot be the basis of a charge against the accounts of any public official, and the chancellor was correct in excluding them for that purpose.
Appellee has cross-appealed from the judgment against him urging that the trial court should have granted his motion to dismiss at the end of appellants’ case in chief. Appellee argues that a strong presumption exists that a public official has faithfully performed the duties of his office which appellants did not overcome, that appellee has complied with the statutory accounting requirements and that an erroneous standard was used to determine if an accounting had been made.
Assuming that a presumption of the type described by appellee exists, its only effect was to pass to appellants the burden of going forward with evidence to the contrary. When this was done, the consequences of the presumption were avoided and the issue then became one, of fact not subject to challenge by a motion to dismiss or demurrer to the evidence. See Barnhart, Use of Presumptions in Arkansas, 4 Ark. L. Rev. 128.
It is true that among the Conway County records received in evidence were the official audit reports which concluded that county “accounts . . . were found in good condition . . . with all funds accounted for.” The trial court held, however, that in addition to being required to meet the accounting requirements imposed by the state, the accounts of appellee, as a trustee of public funds, might be subjected to the more searching scrutiny of a technical “audit” as that term is used in the accounting profession. This ruling was correct. A public official may not insulate himself against a strict accounting for public funds entrusted to him simply because routine examination by state auditors has failed to reveal any discrepancies.
We have likewise examined the position of appellee that judgment should not have been rendered against him for the “partial payments” made on fines and costs and find it to be without merit. The money was admittedly collected by the appellee and his obligation to account for it cannot be doubted.
The decree of the lower court is reversed and remanded on appeal and affirmed on cross-appeal.
Holt, J., disqualified. | [
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Frank Holt, Justice.
A jury found appellant guilty of the crime of first degree murder as alleged by an information and assessed his punishment as death in the electric chair.
On appeal the appellant first contends for reversal of the judgment on thát verdict that the evidence is insufficient to support the jury’s verdict. We cannot agree. The appellant, an inmate of the Arkansas State Penitentiary, admittedly killed a fellow inmate. The appellant told an investigating officer shortly after the killing that the victim and another inmate were “clown ing around” in the barracks when the appellant walked by; that the deceased shoved or struck the appellant and called him a one-eyed son of a bitch; that as he walked away he started thinking about the altercation, went a short distance and got a knife that another inmate had given him the day before; that he walked back to the victim and stabbed him as he got up from his bunk bed; that he did not know how many times he stabbed him because his mind went blank; that he then gave the knife to another inmate and left the scene.
The inmate who was playing cards with the victim verified that the deceased and the appellant had engaged in a verbal clash when appellant was “bumped” by the decedent who did call the appellant a son of a bitch; however, according to him, this occurred earlier in the day. According to this witness, the appellant walked up from behind the deceased, who was unarmed, and started stabbing him in the chest without any warning.
Defense witnesses testified, however, that appellant acted in self-defense by wresting the knife from the deceased and then stabbed him when the deceased reached into his pocket. The appellant testified in his own defense and repudiated the version of his witnesses. He testified, as he had admitted to the investigating officer, that he got his knife from a nearby bunk and came back and stabbed the deceased after being knocked down by him as he walked by and was called a one-eyed son of a bitch. This epithet infuriated appellant because he considered it as referring to him as a “freak.” There had been no previous trouble between these inmates. The victim died almost immediately from two chest wounds inflicted by a knife. It is well established that in determining the sufficiency of the evidence, on appeal we must view the evidence in the light most favorable to the appellee and affirm if there is any substantial evidence to support the jury’s verdict. Hadaway v. State, 215 Ark. 658, 222 S. W. 2d 799 (1949). Certainly we cannot say that this evidence was in-. substantial and not sufficient to sustain the jury’s finding and verdict.
The appellant asserts that the trial court erred in the admission of the statement made by appellant to the criminal investigator of the Arkansas State Police. We find no merit in this contention. The testimony of the officer is uncontradicted that the statement made to him was freely and voluntarily given after fully advising the appellant of his rights. The trial court conducted an in-chambers hearing and made an independent determination that the appellant’s statement was freely and voluntarily made. Further, a sufficient answer to this contention is that the defendant testified in his own behalf and, in effect, reaffirmed his statement given to the investigator.
The appellant contends that the court erred in its instructions with regard to the alleged confession. As previously indicated, before permitting the officer to relate the appellant’s confession to the jury, the court conducted an evidentiary hearing in chambers, in accordance with the requirements of Jackson v. Denno, 378 U. S. 368 (1964). After this hearing, the court made an independent determination and held that the appellant’s confession was admissible. The officer was then permitted to relate appellant’s statements to the jury. In one of its instructions, the court told the jury that appellant’s confession, allegedly made to the officer, should be considered along with all the other evidence in the case in determining the guilt or innocence of the appellant. See Ark. Stat. Ann. § 43-2105 (Supp. 1969), and Brown v. State, 239 Ark. 909, 395 S. W. 2d 344 (1965). In finding no merit in this contention we only need observe that no prejudice could have resulted to the appellant because he testified in open court and admitted the killing in substantially the manner he related to the investigating officer. Further, the appellant is in no position to complain about this instruction since he made only a general objection and offered none of his own. Blaylack v. State, 236 Ark. 924, 370 S. W. 2d 615 (1963); Monts v. State, 233 Ark. 816, 349 S. W. 2d 350 (1961).
Appellant further contends for reversal that the court erred in denying his motion to defer sentence and judgment because of appellant’s mental condition at the time of trial and sentencing. Within two weeks after the commission of the alleged crime, the appellant was committed to the Arkansas State Hospital for a mental examination. It was the opinion of the hospital psychiatric staff that the appellant was without psychosis. Several months later when the appellant was tried, the defense of insanity was not interposed. The appellant testified, however, that he could not “think straight” at times and that he had previously been hospitalized for a mental disturbance. After closing arguments were made to the jury, and again as the jury left the courtroom for its deliberations, the appellant importuned the jury to be merciful and give him the death sentence. When the appellant appeared for sentencing several days after the jury’s verdict, his court appointed counsel made an oral motion for a stay of sentencing and judgment upon the basis that the appellant was mentally incompetent and that proof would be adduced to substantiate his alleged mental condition and the need for a re-examination at the State Hospital. The trial court denied the request for the stay, stating that: “Under the circumstances of the trial and the lateness of your motion the court is going to deny your motion; however, I am going to give him time in which you can take whatever action you need to take in it, which you perhaps will.” When insanity is claimed as a ground for postponement of sentence, the trial court is empowered to exercise its discretion. Ark. Stat. Ann. §§ 43-1301, -1303, -1304 (Repl. 1964). See, also Townsend v. City of Helena, 244 Ark. 228, 424 S. W. 2d 856 (1968), and Cousins v. State, 202 Ark. 500, 151 S. W. 2d 658 (1941). The trial court had the opportunity to observe the appellant and to consider his demeanor during the trial and on the day of sentencing. Before the trial, the appellant was committed by the court to the State Hospital for a mental examination and there it was determined that he was without psychosis. In the circumstances, we cannot say that the trial court abused its discretion in denying appellant’s oral motion that proceedings be postponed until a further mental examination was conducted.
After considering every objection and assignment of error, as we do in capital cases, Ark. Stat. Ann. § 43-2723 (Repl. 1964) and Brown v. State, supra, and finding no error, the judgment is affirmed. | [
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John A. Fogleman, Justice.
The summary judgment appealed from in this case was rendered in a suit by appellee against appellant seeking a declaration of appellee’s rights and appellant’s liability for a $9,000 balance remaining unpaid on a $25,000 loan. Appellant borrowed the money to pay for stock in Investors Thrift Corporation (hereinafter referred to as ITC), and used it for that purpose. The proceeds of the sale of .stock by ITC were to be used in the purchase of stock of American Home Builders, Inc., (hereinafter called AHB), which in turn owned the controlling stock in Peoples Loan and Investment Company (hereinafter called PLI) and other corporations. Appellant pledged 100,000 shares of the capital stock of ITC as sole security for the loan. It was made on October 29, 1965, and was payable in installments of $5,000 in June 1966, $10,000 in June 1967 and $10,000 in June 1968. Appellant filed an answer and counterclaim alleging that a vice-president of appellee had worked out a fraudulent scheme whereby appellant, with others, would purchase the stock of AHB, one-third of which was owned by the vice-president, with funds borrowed from appellee. He alleged that appellee knew, or should have known, that it was participating in a scheme whereby appellant would purchase stock in an insolvent corporation.
Appellant filed a motion for leave to file a cross complaint against additional cross defendants. There is nothing in the transcript before us to indicate that the court ever granted permission to appellant to file this pleading. In the transcript there appears a pleading which is unsigned but bears an endorsement of the clerk of the trial court indicating that it had been filed.
After appellee filed its motion for summary judgment, its attorney wrote the circuit judge with reference to the appellant’s motion saying:
A review of this file indicates there is pending a motion by defendant for leave to file a cross complaint which defendant’s counsel states “could better be styled cross complaint and amended counterclaim.”
We are compelled to reject the contention by appellee that this pleading was not before the court for consideration on the motion for summary judgment. While appellee is correct in its statement that the record fails to show that the trial court ever ruled on the motion for leave to file the cross complaint, the pleading, as to appellee, did constitute, in effect, an amended counterclaim and appellee’s supplemental motion for summary judgment incorporated “the cross complaint or amended counterclaim filed herein by defendant with motion for leave to file same.” The judgment of the trial' court refers to appellee’s motion as one “for a summary judgment granting the relief prayed in plaintiff’s complaint and dismissing defendant’s amended counterclaim against the plaintiff.” Incorporated in this judgment is a finding that appellee’s motion for summary judgment granting the relief prayed in its complaint and “dismissing defendant’s counterclaim, as amended, should be granted.” There is a further finding that appellee was entitled to the relief prayed in its complaint and to a dismissal of the defendant’s coun terclaim, as amended. It was adjudged that appellant should “take nothing on his counterclaim.”
In this amended counterclaim, Miskimins alleged that the bank, through its officers and agents, represented to him or his representative that the net worth of AHB, exclusive of the value of PLI stock owned by a subsidiary, was at least $540,000, that PLI had the capacity to buy all mortgages that AHB could produce, that controlling interest in PLI was worth an additional $1,000,000, that AHB was producing a net profit of at least $1,500 per house sold, that AHB and its subsidiaries were producing and selling 350 houses per year at a net profit of $525,000 per year, and that both PLI and AHB with its subsidiary corporations were highly profitable, financially sound, going businesses. He asserted that he obtained the loans involved, in reliance upon these representations, in order to make an additional investment in ITC. He alleged that he had invested $107,625 of a total of approximately $947,300 of capital for the purchase of stock of AHB by ITC and had authorized Markham to enter into a contract to purchase such stock. Miskimins further alleged that he came to Fort Smith to obtain loans for additional investment in ITC, in order to enable that corporation to make deferred payments on the contract of purchase as they became due, a part of which were for the purpose of retiring indebtedness of AHB, partially guaranteed by Hall. According to this pleading,. Miskimins applied to appellee for the loan because he had been advised by Markham that this bank would readily make the loan. Miskimins charged that the bank represented to him that the purchase being made was a good investment, although it knew or should have known that the purchaser of the stock had been provided with false or misleading information, in order to insure continuity of business with PLI and AHB. He further alleged that appellee aided and abetted Sexton, Hall, Smith and Gatlin in employing a manipulative scheme and artifice to defraud him in violation of Rule 10b-5 promulgated by the Securities and Exchange Commission.
The transcript in this case consists of some 600 pages, and the briefs contain a total of 315 pages. For the purposes of this opinion, we will view the supporting and controverting affidavits, depositions and admissions in the light most favorable to appellant, as it is our duty to do.
' The series of complicated transactions leading up to the loan made by the appellee to appellant commenced some time in 1965. One Maurice W. Markham, Jr., who had practiced as a veterinarian in Platte, South Dakota, had established a concern called Markham Homes, Inc., which was engaged in building shell homes in the northeast Oklahoma area. When the capital of this corporation became tied up in shell home financing, its mortgages were sold to savings and loan associations in areas in which the homes were built. Markham discontinued his veterinary practice and moved to Pryor, Oklahoma, where the corporation opened a lumber yard and continued building houses. A search for outlets for mortgages on shell homes revealed information about Peoples Loan and Investment Company of Fort Smith, which had bought numerous mortgages from AHB, a concern which was also in the shell home business. AHB was owned by Jim Hall, Executive Vice-President of appellee, Huie Smith and Sam Sexton, Jr., each owning one-third of the outstanding capital stock. Markham then contacted one Austin Gatlin of Mountainburg, who had formed PLI. Gatlin informed him that he had sold PLI to AHB and had subsequently established Arkansas Loan and Thrift Corporation in Van Burén. Gatlin advised the formation of an institution identical with Arkansas Loan and Thrift Corporation for the financing of shell homes. Markham then employed Gatlin to set up such a corporation and to render advisory services to it for a period of one year. Gatlin indicated that he was in contact with numerous investors who would buy stock in such a corporation. It was contemplated that certain investors in South Dakota would also take stock and Gatlin agreed with Markham to go there to talk with them.
The first meeting of the incorporators of Investors Thrift Corporation was held at the Diamond G Ranch, owned by Gatlin and his wife, at Mountainburg, Arkansas, on August 10, 1965. Appellant was represented at this meeting by his proxy, Markham. His subscription was shown to be for 100,000 shares of class A stock. Markham and Gatlin were two of the three directors elected. While Gatlin was transacting business in the PLI offices on some date after his employment by Markham, Sexton asked Gatlin if he thought Markham would be interested in buying AHB. Gatlin promised to determine whether Markham was interested. After a trip to South Dakota, Markham expressed interest but did not want to buy AHB without also acquiring the control of PLI. On September 9, 1965, Hall, Smith and Sexton granted an option to ITC and Markham to purchase all of the shares of stock of AHB. Sexton had offered Gatlin $50,000 to sell AHB. Gadin said that he advised Markham of that fact. Sexton had written a letter to Gatlin, dated August 3, 1965, regarding the condition of AHB, which was delivered to Markham.
The agreement for sale required the payment of $150,000 in cash for an option to purchase and $157, 500 on or before January 10, 1966, if the option was exercised. It also required the payment of $300,000 to Texas Capital Corporation by the same date and an additional $400,000 (or such lesser sum as might be due from AHB) before June 30, 1966. ITC was granted full access to the books and records of AHB, PLI and all subsidiaries under the agreement. The cash payment was to be forfeited as consideration for the contract if the option was not exercised.
Markham became general manager of AHB, at least nominally, on the date of the contract. Sexton and Gatlin managed PLI, at least until the option was exercised on November 2, 1965. It appears that Sexton did not actually leave until November 8. Thereafter, the management was vested in Markham and Gadin, with the latter serving as a consultant until February 6, Í966, according to his agreement.
Soon after the contract was entered into, Markham discovered that the requirements made by Texas Capital were in excess of those set out in the option. These requirements were finally set out in a letter of November 1. Texas Capital, to whom the corporation stock to be transferred was pledged, expected that at least $400,000 be paid promptly, and at least $150,000 by January 1, 1966, and an additional $115,583.27 by June 30, 1966, with interest to be added.
Both Gatlin and Smith began to urge Markham to close the deal quickly to remove Sexton from the management of PLI. Gatlin insisted that if they waited until January 10, Sexton would substantially impair the value of PLI. Smith advised the purchasers that he would invest $45,000 of the $50,000 he was to receive in ITC stock if Sexton were out of the business. As a result, Markham urged his principals to expedite the matter. The option was exercised November 2, and the balance required was paid to the sellers on November 5, when $400,000 was also paid to Texas Capital. The purchasers paid the full balancé to that corporation by January 10, 1966.
It was necessary that Miskimins and his associates borrow money in order to make the cash payments required. Miskimins stated that the loans involved in this litigation were obtained in order to acquire the funds that he used to purchase ITC stock, and thus provide his contribution to the amount of capital required to consummate the purchase. Hall had advised Smoot, the president, and Greathouse, another officer of appellee, that these purchasers would probably ask for loans in connection with the transaction. All transactions of appellant and his associates with the bank were handled by officers other than Hall, its vice-presi dent. Hall had advised Smoot that he had a personal interest in the sale. Smoot, Greathouse, Hall ánd six others constituted appellee’s discount committee. The loans to appellant were made by Smoot and approved by this committee.
Sexton stated that he understood that PLI had the largest single deposit in City National Bank. Appellee extended credit from time to time in order that cash reserve requirements of PLI be maintained. According to Sexton, both AHB and PLI regularly furnished their financial statements to the bank and used them as a credit reference.
Miskimins and his associates came to Fort Smith on October 29, 1965, to borrow money so that they could buy enough additional stock in ITC to enable it to exercise the purchase option. They went to the bank and met Hall and Smoot in the coffee shop there. An informal discussion of their desire for a loan and the purposes thereof ensued. Although Smoot denied that he was aware that the borrowed funds were to be used to purchase stocks from Hall or to relieve Hall of any obligation, he admitted that he had conversations with appellant and- the other borrowers with reference to the loans and that he understood from Miskimins that the loan was to purchase stock in ITC. He also admitted that Hall had advised him and other officers of the bank that he would not participate in matters pertaining to these loans because of his personal interest. Smoot also stated, in answer to interrogatories, that he considered the financial condition of PLI to be good and that the financial condition of AHB was good, as far as he knew. A finding that Smoot knew that the purposes of the loan were to enable ITC to complete the purchase of PLI and AHB would be justified.
Appellant’s affidavit relates his version of the discussion, as follows:
* * * There a general discussion of the proposed purchase, of American Home Builders, Inc., with its control of Peoples Loan and Investment Company and related organizations took place. The financial soundness of both American Home Builders, Inc., and Peoples Loan and Investment Company was discussed, as well as the profitability of the businesses. We were assured by Mr. Hall in the presence of Mr. Smoot that both businesses were financially sound and highly profitable going businesses and we were encouraged by both Mr. Hall and Mr. Smoot to proceed with the investment. Mr. Smoot definitely knew of Mr. Hall’s stock ownership in American Home Builders, Inc., and was completely aware of the fact that the funds which I and the other South Dakota investors were borrowing from The City National Bank were to be used by Investors Thrift Corporation to purchase American Home Builders, Inc. stock, with its related corporations.
The same statement was contained in the affidavit of five of Miskimins’ associates in ITC.
Sexton stated that, to the best of his knowledge and belief, Markham, as general manager of AHB, had possession of its books and records at all times after September 9, 1965. He said that on September 2, when the first draft of a contract was presented, PLI was being audited by the Arthur Anderson Company. He revealed that no changes in the books or accounts of the company were made when this audit was completed. Sexton knew that Markham did not inspect the books of the companies, but said that Markham had one Jimmy Willis examine the books at AHB and had his sister look at the books of PLI at one time or another.
In a deposition, Gatlin testified that the basic asset of PLI was about $6,000,000 in loans and mortgages which he said could not have been evaluated in a short period of time. He said that he was unable to evaluate these loans during the time he remained at PLI. In early September, Markham had a certified public accountant máke a preliminary survey of PLI on behalf of Markham Homes. This accountant advised that, with the personnel available to his company, at least six months would be required for it to complete an audit. He estimated that a minimum of three months would be required fdr such an audit, regardless of the number of persons wfyo could be employed.
Various errors in the assets and liabilities accounts of AHB and PLI began to appear in early 1966. About July 1, 1966, Ronnie Butler, a public accountant having five years’ experience with a national firm of certified public accountants was employed by AHB to make an audit. On September 1, 1966, he moved to PLI and devoted his time to an audit there. He continued to find errors in the liabilities and repossession accounts of AHB through 1967. His audit was completed in October of that year. It disclosed that there was no substantial change in the net worth of PLI between January 30, 1965, and September 30, 1965. He found AHB to have a net- deficit of $537,253.18' on September 30, 1965. The PLI deficit was $31,152.41 on June 30, 1965. According to Markham, the full nature and extent of the misrepresentations made about these corporations were not known to him or those he represented until the fall of 1967. As irregularities continued to appear, a meeting, of the • stockholders of ITC was held in South Dakota, where most of them resided, in May 1967. Thereafter- the accounting firm of Fred Landau of Chicago was employed and an audit completed in the fall of 1967. Markham stated that it took almost two years to unravel' the complicated, false and misleading transactions involved.
The allegation of appellant that AHB and PLI were insolvent at the time he obtained the loans involved is not controverted.
Appellant hinges his argument for reversal upon the existence of a genuine issue of material fact as to his right to relief for legal or constructive fraud and for violation of SEC Rule 10b-5. We shall first discuss the cause of action for legal or constructive fraud. We feel that no discussion of any possible cause of action for actual fraud is warranted. In the first place, we find no support for such a cause and, in the second place, appellant seems to have abandoned this basis for relief.
We have clearly recognized long ago that there may be a cause of action for legal, or constructive fraud, even though there is a complete absence of any moral wrong or evil intention. Stewart v. Clark, 195 Ark. 943, 115 S. W. 2d 887. This type of fraud is based upon a breach of a legal or equitable duty which the law declares to be fraudulent because of its tendency to deceive others, regardless of the moral guilt, purpose or intent of the fraud feasor. Lane v. Rachel, 239 Ark. 400, 389 S. W. 2d 621; Levinson v. Treadway, 190 Ark. 201, 78 S. W. 2d 59; Bridges v. United Savings Association, 246 Ark. 221, 438 S. W. 2d 303. Representations are considered to be fraudulent when made by one who either knows them to be false, or, not knowing, asserts them to be true. Fausett & Co. v. Bullard, 217 Ark. 176, 229 S. W. 2d 490; Maurice v. Chaffin, 219 Ark. 273, 241 S. W. 2d 257. It may involve a mere mistake of fact. Kersh Lake Drainage District v. Johnson, 203 Ark. 315, 157 S. W. 2d 39.
Of course, the burden of demonstrating that there is no justiciable fact issue rests, in the first instance, upon the party moving for summary judgment. Evers v. Guaranty Investment Co., 244 Ark. 925, 428 S. W. 2d 68; Widmer v. Ford Tractor Co., 244 Ark. 696, 426 S. W. 2d 806; United Press International, Inc. v. Heinreich, 241 Ark. 36, 406 S. W. 2d 317. Doubts must be resolved against the motion. Bull v. Manning, 245 Ark. 552, 433 S. W. 2d 145; Bergetz v. Repka, 244 Ark. 60, 424 S. W. 2d 367; Griffin v. Monsanto Co. 240 Ark. 420, 400 S. W. 2d 492. Yet, when the movant makes a prima facie showing of entitlement to the relief sought, the respondent must remove the shielding cloak of formal allegations and demonstrate a genuine issue as to a material fact. Mid-South Ins. Co. v. First National Bank of Fort Smith, 241 Ark. 935, 410 S. W. 2d 873; Deam v. O. L. Puryear & Sons, Inc., 244 Ark. 18, 423 S. W. 2d 554. In order to do this, opposing affidavits must set forth facts which would be admissible in evidence. The response and supporting material must set forth specific facts showing that there is a genuine issue for trial. Ark. Stat. Ann. § 29-211(e) (Supp. 1969). The affidavit is not sufficient if it states only conclusions. The appropriate rule is stated at 49 C. J. S. 414, Judgments § 225 (1947), as follows:
The statements made, whether adduced in support of, or in opposition to, the motion for summary judgment, must be statements of fact, and not mere conclusions, opinions, or beliefs. # # * The affidavits should set forth evidentiary and not ultimate facts, and should set forth the facts with particularity, mere general averments being insufficient. However, the affidavit need not be composed wholly of strictly evidentiary facts, and an affiant is not required to aver as a fact that which is not a fact, but an opinion.
For some of the cases supporting this rule, see Salitan v. Tinkham, 103 N. H. 100, 166 A. 2d 115 (1960); Wanous v. Balaco, 412 Ill. 545, 107 N. E. 2d 791 (1952); Gherardi v. Board of Education of the City of Trenton, 53 N. J. Super. 349, 147 A. 2d 535 (1958); Bennett v. Kazvini, 120 N. Y. S. 2d 229 (1952); Humboldt Livestock Auction Co., Inc. v. B & H Cattle Co., 261 Iowa’419, 155 N. W. 2d 478 (1967); Engelhard Industries, Inc. v. Research Instrumental Corp., 324 F. 2d 347 (1963), cert. denied, 377 U. S. 923, 84 S. Ct. 1220, 12 L. Ed. 2d 215 (1964).
Appellant cannot rely upon the statements and representations of Hall, because the bank cannot be charged with them, or with his knowledge, because of his known individual interest in the transaction, and the absence of any indication that he was the sole manager or the dominating influence in its affairs. Futrall v. McKennon, 187 Ark. 374, 59 S. W. 2d 1035; Greer v. Levee District No. 3 of Conway County, 140 Ark. 60, 215 S. W. 171; Bank of Hartford v. McDonald, 107 Ark. 232, 154 S. W. 512. See also 10 Am. Jur. 2d 153 and 155, Banks, §§ 163 and 167. Therefore, appellant can only demonstrate that there was a genuine fact issue, insofar as he is concerned, from the affidavits concerning the “coffee shop” conference.
When we consider the Miskimins affidavit in this light, we are unable to say that he demonstrated a genuine fact issue as to legal or constructive fraud by setting forth specific facts which would be admissible in evidence. The only statement of Miskimins relating to Smoot is that “* * * we were encouraged by both Mr. Hall and Mr. Smoot to proceed with the investment.”
The generality of this statement is such that it cannot be classified as the statement of a specific fact or as admissible in evidence. In reaching this conclusion, we find nothing in the affidavit which would indicate that Smoot had, at the most, stated anything more than the expression of opinion. Such a statement cannot furnish the basis of a cause of action for legal or constructive fraud. Cannaday v. Cossey, 228 Ark. 1119, 312 S. W. 2d 442. Thus, the opposing affidavit cannot be said to indicate that there was any representation made by Smoot. It must be recalled that no audit or financial statement, which had been furnished to the bank, had disclosed any of the irregularities later discovered.
We consider appellant’s argument that he is entitled to relief under Rule 1 Ob-5, Title 17, § 240.1Ob-5, page 334, Code of Federal Regulations, to be without merit, for want of standing to assert a cause of action thereunder. City National Bank of Fort Smith v. Vanderboom, 290 F. Supp. 592 (W. D. Ark. 1968), aff’d, 422 F. 2d 221 (8th Cir. 1970).
The judgment is affirmed.
It seems to have been contemplated that only $50,000 in cash was to be paid. The balance was in the form of stock which was to go to Gatlin and Markham for commissions or “bonuses.”
We note that it was found in a companion case that there was no proof that Smoot made any representations as to the financial condition of AHB and PLI. See City National Bank of Fort Smith v. Vanderboom, 290 F. Supp. 592, (W. D. Ark. 1968), aff’d, 422 F. 2d 221 (8th Cir. 1970) | [
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Carleton Harris, Chief Justice,
This is a highway condemnation case, and is a second appeal. The lands in question, belonging to Mrs. Martha P. Darr, were condemned by the Arkansas Highway Commission, appellant herein, on September 29, 1966. Taking was for the purpose of constructing a controlled-access interstate highway, and the condemned property was designated by appellant as Tract No. 225, which consisted of 9.55 acres. The entire property owned by Mrs. Dan-before the taking consisted of approximately 280 acres and was used for farming purposes. After the taking, the remaining lands consisted of 6.6 acres lying generally south of the new highway and 263.85 acres lying north of the new highway. Robert Darr, son of appellee, testified to total damages of $84,955.00. Jackson Ross, an expert witness on behalf of Mrs. Darr, found damages to be $71,125.00, and Hobart Yarbrough, another expert witness, testified that damages amounted to $77,955.00. Mr. Zack L. Mashburn, testifying on behalf of the highway department, found damages to be $23,500.00, and Mr. Kenneth McMurrough, another expert witness on behalf of appellants, assessed damages at $22,750.00. On trial, the jury returned a verdict in the amount of $60,000.00, and from this judgment, appellant brings this appeal. For reversal, two points are asserted. First, “The trial court erred in allowing appellee’s witness, Tom Scott, to testify as to costs of building a road into appellee’s remaining lands north of the interstate”. It is then asserted that the judgment of $60,000.00 is not supported by substantial evidence. We proceed to a discussion of each point.
Prior to the condemnation, appellee had access to the farm from a public road, but after the taking, there is no access to the 263.85 acres lying north of the highway except by travelling over property belonging to other persons. At present, access is being afforded by travelling over land belonging to the Robinson brothers, Robert Darr, a son of appellee, explaining that the person who has leased the Darr farm is also farming the Robinson brothers property, and permission w.as granted for use of the turn row. Evidence offered by appellee was to the effect that a road will have to be built in order to obtain access to the main body of the farm.
Judge Tom Scott, County Judge of Conway County, testified with reference to the cost of such a road. He first testified that the road presently utilized is not a public road and even has a sign saying “Keep Out”. After testifying as to the most feasible place to locate a road, the judge gave an estimate of the cost involved, stating that the proposed road would be comparable to the public road used before the condemnation, except that it would be longer. He first testified that about a one foot rise would be necessary for the fill, that it would be a gravel road, giving figures for the amount of gravel, the cost of ditching, a bridge or ramp over a canal, the type of tile to be used, and dirt compaction; the total estimate for the building of the road was $25,528.86. Appellant objected to this evidence, but the objection was overruled. Judge Scott was then asked if his figures included any right-of-way costs to be paid to the landowner over whose property the road would be built, and he answered that it did not.
In Arkansas State Highway Commission v. Ptak, 236 Ark. 105, 364 S. W. 2d 794, we stated that restoration costs are proper evidence, but the costs must be fairly definite and the testimony shall reasonably define the improvements or changes to be made. Of course, this evidence is only admissible as an aid to the jury in determining the difference in the before and after value of the property. Arkansas State Highway Commission v. Speck, 230 Ark. 712, 324 S. W. 2d 796. Appellant says that construction costs, as testified to by Judge Scott, were not fairly definite inasmuch as his figures did not include right-of-way cost, and this important matter was left for the jury’s speculation.
In the first place, there is no objection by appellant’s counsel to this question. There were several objections to the introduction of Scott’s figures, but though the additional right-of-way over private land was mentioned several times, these specific questions or answers thereto were not objected to. There is thus no occasion for us to further consider or discuss this point, though offhand it appears doubtful that it contains merit.
Nor do we agree that the verdict was not support ed by substantial evidence. The landowner did not testify, but appellee offered the testimony of her son, Robert Darr, who is a licensed real estate broker working for Merle Lemley Realty Co. of Russellville, Jackson Ross, an expert land appraiser, and Hobart Yarbrough, also offered as an expert witness by Mrs. Darr.
Robert Darr, in his testimony, demonstrated a familiarity with the Darr farm, testifying as to the type of soil, and stating the farm was principally used for the production of soy beans. He said that between 28 and 30 bushels of beans were produced per acre, and the rent was one-fourth of the gross of the bean crop. Darr was familiar with the boundaries of the property, elevations, access to the farm, and he testified that in arriving at the amount of damages, he took into consideration the reduction in the overall size of the farming unit, the division of the farm into two separate distinct parts, and the lack of access, after the taking, to the main body of the farm property. Though Darr did not profess to be an expert, and, for that matter, could not qualify in that capacity, his testimony was impressive mainly because of an evident familiarity and knowledge of the property.
Mr. Ross, who has testified in numerous highway condemnation cases, testified that he inspected the property, noted its location, and then made a study of the market. He mentioned that before the taking, one could drive to the farm off Highway No. 64, but that after the taking, Highway No. 64 only afforded access to 6 acres. He said the 6 acre tract could be utilized for a homesite, and the 263 acres on the north would still be agricultural land. Mr. Ross mentioned two sales of farms that he considered comparable to the Darr property, comparing location and production. Mr. Yarbrough also mentioned the sales referred to by Ross.
Appellant says that the sales mentioned were not comparable because of the difference in the type of soil in those farms and the Darr farm and appellant’s experts mentioned two different sales that they considered comparable. These witnesses, both for appellee and the department, gave their views, the reasons for those views, and presented questions of fact which could only properly be determined by the jury.
One of appellant’s principal arguments relates to the testimony of appellee’s witnesses concerning the lack of public access to the main farm. It is pointed out, that at the date of trial, nearly three years after the date of taking, permissive access had been obtained to the property; the land had been farmed during this period; the landowner was getting the same percentage of crop rent from the farm; but the landowner had apparently taken no steps to arrange for any type of permanent access to the area in question. Appellant says that a landowner is under a duty to mitigate his damages. We have so held. See Arkansas State Highway Commission v. Dean, 244 Ark. 405, 425 S. W. 2d 306. But, we do not know what really is meant when appellant complains “no steps had been taken by the landowner to arrange for any type of permanent access to this area in question”. Appellee is presently only able to reach her land through the generosity of neighbors, and the access through the Robinson brothers property seemed to have been acquired because the same tenant who had leased the Darr farm also operated the Robinson farm. Does appellant mean that appellee should approach these neighbors as a matter of getting them to agree to continue to afford her a passageway? Does the commission expect her to acquire this gratis? Should she be forced to depend upon maintaining the goodwill of these neighbors in order to reach her property? What happens when these adjoining owners’ properties are sold, or ownership is changed by death? While the law requires that a landowner mitigate his damages, there certainly is no requirement that one accept a makeshift arrangement in lieu of a permanent solution. Of course, it is not likely that either neighbor would convey a permanent easement to appellee, with out charge; for that matter, they might not be willing to convey an easement at all. Yet, if Mrs. Darr had obtained such an easement for a consideration of several thousand dollars, it possibly could have been urged by the condemnor that she paid too much, and was not entitled to include such an amount as restoration costs. Zack Mashburn, an appraiser for the Highway Commission, was asked what, in his opinion, it would cost Mrs. Darr to condemn a right-of-way across two 40’s belonging to Mr. Carruthers in order to reach her property. He answered, “I’m not able to tell you what it would cost a private owner. A private owner is different entirely from a public — from the Highway Department.” When asked if the Highway Department could take from a private owner, Mash-burn replied, “Yes, but it’s entirely different when one private person buys right-of-way for a road from another private party, especially if they’re neighbors.” Further, “Well, I don’t think — I don’t think that getting the right-of-way for private — for easement for roads is too expensive.” Nor would Mr. Mashburn comment on what it might cost if condemnation proceedings had to be utilized in order to obtain a right-of:way.
Summarizing, restoration costs were proper for the jury to consider in determining the difference in the before and after value of the property. We think the evidence offered by appellee constituted substantial evidence. It is true that damages found by the appraisers on behalf of the landowner were considerably higher than the appraisals of those who testified on behalf of the commission. However, this is nearly always true, and as we have stated many times, conflicts in the evidence are a matter for jury determination.
Affirmed.
There are really two ways of entering the property, one by utilizing the farm turn row, and the other by crossing over land belonging to a neighbor, Mr. Carruthers. | [
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J. Fred Jones, Justice.
Don E. Harding and Thomas M. Hildebrandt were convicted in the Lincoln County Circuit Court of the crime of attempt to escape. They were sentenced to three years in the penitentiary and on appeal to this court rely on the following points for reversal:
“These cases should be reversed and dismissed since the trial court refused to take any action upon the Motion for a new trial until the next term of Court.
These cases should be reversed and dismissed for the reason that the State did not prove that there was a conviction and that the alleged attempted escape was from a confinement by virtue of lawful imprisonmnent or confinement.
A mistrial should have been granted upon proof that the juror was exposed, during the trial, to improper influence.
The verdict is contrary to the weight of the evidence.”
Since we must reverse and remand this case for error alleged under appellants’ second point, the alleged errors under the other points will not likely arise again and to consider them here would only add volume without substance to this opinion.
The law which the appellants were accused of violating is Ark. Stat. Ann. § 41-3513 (Supp. 1969), which reads as follows:
“It shall be unlawful for any person who is lawfully imprisoned in any jail, or other place of confinement, or held in the custody of any officer, for any cause whatsoever to escape, or attempt to escape, from such imprisonment or custody without the use of force or violence to the person; and upon conviction therefor, such person shall be imprisoned for a period of not more than three (3) years; provided however, that the sentence imposed under this provision for the crime of escape or attempt to escape from imprisonment or custody shall not exceed the period of confinement imposed for the conviction of the offense for which such person is imprisoned, or prescribed by law for the conviction of the offense for which said person may be in the custody of any officers.”
The appellants were charged on separate, but identical, informations filed by the prosecuting attorney in the following language:
“The said defendant on the 20th day of June, 1969, in Lincoln County, Arkansas, did then and there wilfully, unlawfully, being a convict sentenced to the Arkansas State Penitentiary, and being held in custody on the Cummins Unit at Grady, Arkansas, a branch of the Arkansas State Penitentiary, in pursuance of an order of commitment regularly issued, did then and there wilfully, unlawfully and feloniously attempt to escape from said penitentiary, contrary to the statute in such cases made and provided, and against the peace and dignity of the State of Arkansas.”
The record reveals the following facts: The isolation cells at the Cummins branch of the Arkansas Penitentiary consist of heavy wire cages inside a building and unruly prisoners are assigned to these cells as punishment for violation of prison rules and regulations. Armed guards are stationed in elevated “towers” around the isolation area and trusty guards keep a close check on the isolation cells inside the building. The appellants were isolated together in one of the isolation cells and Booker T. McDonald was one of the trusty guards. About 10 p.m. on June 20, 1969, the appellants were discovered outside the isolation cell and outside the isolation building. The wire forming the top of the isolation cell had been cut above the sink in the cell and the wire had been pulled or bent down, forming a rectangular or square hold in the top of the cell. The trusty guards testified that when the appellants’ cell was found empty about 10 p.m., an alarm was sounded and a searchlight from the tower revealed the appellants running away from the isolation building toward a new building under construction near a fence. The two guards fired several shots at the appellants and Hildebrandt was wounded in the side.
The appellants’ testimony differs considerably from that of the guards. They explained that for some reason, which was not quite clear to them, but in any event, wholly without foundation, guard Booker T. McDonald had formed a dislike for them, and when he found them inspecting a hole some former inmate or other person had cut in the wire top of their isolation cell, McDonald forced them, at the point of his cocked and loaded revolver, to climb through the hole and leave the building. The only logical conclusion they were able to draw from such conduct on the part of McDonald, was that McDonald wanted them killed in a prison break. They testified that they were actually on their way back to the isolation cell with their hands raised when the guards started shooting at them. McDonald and the other guards testified that McDonald had been relieved for his evening meal and had not returned from the dining area when the appellants were discovered outside their cell by the other guards, including McDonald’s relief guard.
The question of whose version of the facts is correct is not important on this appeal, for this case does not turn on the voluntariness of the appellants’ acts in leaving the cell. The state argues that “the record is replete with testimony from which the jury could easily believe that appellants were convicted felons and in lawful custody at the time they made their attempt to escape.” The state has failed to specifically point out such testimony and we have been unable to find such in the record. It might be easy to believe that the appellants were convicted felons and in lawful custody, otherwise they would never have been in an isolation cell in the state penitentiary. Especially is this true since the appellants did not deny that they were lawfully imprisoned in the isolation cell at the penitentiary. The trouble with this approach, however, is that one must be lawfully imprisoned or held in custody before he can be guilty of escape or attempt to escape. The burden rests on the state to prove its allegations against the appellants, and does not lie on the appellants to disprove the allegations made by the state.
The mere fact of physical custody or imprisonment is not such evidence that will sustain a conviction for escape or attempt to escape. The lawfulness of the imprisonment or custody from which the escape is made or attempted is the statutory essence of the criminal offense of escape or attempt to escape, and the lawfulness of the imprisonment or custody from which the escape is made or attempted must not only be alleged by the state in the indictment or information, it must also be proved. It may be argued that a person who is incarcerated in the state penitentiary and spends a great deal of time in isolation for infraction of rules may be presumed to be lawfully imprisoned. No such presumption attends the charge of escape or attempt to escape under the statute or under our prior decisions.
In State v. Murphy, 10 Ark. 74, Murphy escaped from the penitentiary and was recaptured and tried for escape. The record of his original trial and conviction was placed in evidence. The identify of the prisoner was the real point in issue. The jury was instructed, at Murphy’s request, that they would not find the prisoner guilty, unless they were satisfied from the evidence that he was the same identical Westley Murphy who was so convicted and sentenced for larceny. The Attorney General then moved the court to instruct the jury that any such question as to the personal identity of the prisoner at the bar was waived by his plea of not guilty to the indictment; and that upon the introduction of the transcript of the record of the Johnson Circuit Court, the jury were bound, by law, to presume, in the absence of any proof to the contrary, that the prisoner at the bar, was the same identical Westley Murphy, appearing by said transcript to have been so convicted and sentenced for the crime of larceny. In affirming the trial court’s failure to give this instruction, this court said:
“The fact that the accused was the same individual that had been convicted of larceny in the Johnson Circuit Court, was a material and traversable averment in this indictment, and by coming in and pleading the general issue, he did not admit his identity in respect to that conviction. The offence charged upon the defendant in the Court below, can be committed by a convict only, and in order to fix that character upon him it devolves upon the State to prove his conviction by the record, and his personal identity by proof aliunde.” (Emphasis added).
In Sandford v. State, 11 Ark. 328, the state was permitted to read into the record, on trial for escape, judgment from transcript of the original conviction for larceny, in order to show that the prisoner had been legally convicted.
In 70 A. L. R. 2d § 3, under Anno: Justification for Escape, is found the following:
“Mere confinement within prison walls, in violation of the law of the state, does not make such imprisonment a lawful one from which it is a crime to escape if opportunity offers, said the court in People v. Ah Teung (1891) 92 Cal. 421, 28 P. 577, 15 LRA 190.
* * *
See also People v. Perry (1947) 79 Cal. App. 2d Supp. 906, 180 P. 2d 465, holding that there could be no conviction of the crime of resisting arrest unless the arrest was lawful, the court saying that the same rule was applied in holding that an escape from unlawful confinement was justified.
* * *
Where the accused was incarcerated in prison by virtue of a commitment valid on its face, he was lawfully in custody and his unauthorized departure constituted escape, said the court in People v. Jones, (1958) 163 Cal. App. 2d 118, 329 P. 2d 37, adding that he had his legal remedies to enforce his legal rights and was not justified in resorting to self help.
* * *
In State ex rel. Farrior v. Faulk (1931) 102 Fla. 886, 136 So. 601, it was stated that escape presupposes actual lawful custody, and that before one could be charged with the offense of escape it must be shown that at the time of the alleged escape the prisoner was held in lawful custody on a valid charge of a criminal offense or upon a conviction of such an offense.
Reversing a conviction of felony escape because of the insufficiency of the showing that defendant was incarcerated under a charge or conviction of felony at the time of the alleged escape, the court in Fulford v. State (1959, Fla. App.) 113 So. 2d 572, said that proof of lawful custody is an essential of the crime of escape, and that the warden’s testimony that defendant had been in his custody for 6 months prior to the escape was not proof that that custody was lawful.
And see Melton v. Culver (1958, Fla.) 107 So. 2d 378, stating, generally, that an indictment or information charging an escape must reflect the legality of the custody at the time the escape was committed.
* * *
In Commonwealth v. Houseman (1881) 3 Ky. LR 331 (abstract), it was said that to constitute a complete offense the person charged to have been suffered to escape must have been lawfully in the officer’s custody, and it should be so charged in the indictment.
In a prosecution for harboring an escaped prisoner, Bellew v. State (1958) 238 Miss. 734, 106 So. 2d 146, app. dismd. and cert. den. 360 U. S. 473, 3 L. Ed. 2d 1531, 79 S. Ct. 1430, the court approved the admission of evidence as to the offenses with which the escapee was charged, saying that it was necessary for the prosecution to prove that the prisoner was in lawful custody at the time of his escape.
* * *
The early English authorities apparently recognized that a showing of lawful custody was necessary for a conviction of escape. Frequently cited are 1 Hale PC 610; 2 Co. Inst. 590; 2 Hawkins PC ch. 18 § 5.
* * *
The law has always demanded, before one should be adjudged guilty of the crime of escape, that the imprisonment from which he broke should be shown to be lawful and well-grounded, and it will not endure that one imprisoned without any ground or contrary to law should be adjudged guilty of felony for even forcibly regaining that liberty to which he was always and at every moment entitled, said the court in Commonwealth v. Miller (1835, Pa.) 2 Ashm 61, adding, however, that it was not merely those who were guilty of felony or other crime who might be rightfully imprisoned, but that, under many circumstances, those actually innocent might be lawfully confined and ought to submit themselves until delivered by due course of law.”
In the federal case of Mullican v. United States, 252 F. 2d 398, 70 A. L. R. 2d 1217, Mullican and Shores were charged by separate indictments under the Federal Escape Act, 18 USCA § 751, with unlawfully escaping from confinement in the Federal Correctional Institution, Texarkana, Texas. They were tried and convicted. The government introduced as its exhibit No. 1, a copy of the judgment and sentence of the district court under which Shores was sentenced to three years for interstate transportation of a solen automobile. Government’s exhibit No. 2 was a photostatic copy of record of the judgment and sentence of the district court for the Southern District of Texas showing that Mullican was sentenced to two years imprisonment. Government’s exhibit No.. 3 was a group of photostatic documents, one of which purported to be a copy of a letter from the director of Bureau of Prisons pertaining to the place of confinement for Mullican. The original documents referred to in the letter were not in the custody of the Bureau of Prisons and the letter so stated. In holding that the photostatic copies were inadmissible, the court said:
“It is not shown by the certificate that the copies, from which the photostat copies were made, were of themselves official documents or that they were true copies of the originals.”
The Fifth Circuit Court of Appeals then defined the federal statute under which the appellants were convicted and commented on same as follows:
“Since there seems to be little if any question but that the appellants were inmates of the Federal Correctional Institution at Texarkana and that they escaped from it, it seems proper to consider whether or not the admission of Government Exhibits 3 and 4 was harmless error. The statute defining the crime for which the appellants were indicted, tried and convicted, provides that:
‘Whoever escapes or attempts to escape from . . . any institution in which he is confined by direction of the Attorney General, . . . shall, if the custody or confinement is by virtue of an arrest on a charge of felony, or conviction of any offense, be fined not more than $5,000 or imprisoned not more than five years, or both; or if the custody or confinement is for extradition or by virtue of an arrest or charge of or for a misdemeanor, and prior to conviction, be fined not more than $1,000 or imprisoned not more than one year, or both.’ 18 USCA § 751.
•It may be unnecessary to trace a prisoner by documentation from courtroom to the place from which he escaped in order to sustain á conviction for escape but if the .indictment charges, as do the indictments against Mullican and Shores, that the accused was in confinement by virtue of a conviction, there must be proof that there was a conviction and that the escape was from confinement by virtue of the conviction. Convictions are shown by Government Exhibits 1 and 2, but with Exhibits 3 and 4 excluded the confinement pursuant to convictions was not established. Although the validity of the conviction is not an essential element of the offense as was held in Aderhold v. Soileau, 5 Cir., 1933, 67 F. 2d 259, and in United States v. Jerome, 2 Cir., 1942, 130 F. 2d 514; 317 U. S. 606, 63 S. Ct. 62, 87 L. Ed. 492, there must be proof of confinement pursuant to a conviction. This is generally shown by official records. 18 Am. Jur. 370, Escape, Prison Breaking and Rescue § 27. The errors were, in our view prejudicial.”
Thus, it is seen that the statute under which the appellants were convicted in the case at bar, is much more restrictive than is the statute under which Mullican was convicted. The, appellants in the case at bar were not charged with escape under the Act. of December 17, 1838, Ark. Stat. Ann. § 41-3508 (Repl. .1964), which provides that if any convict sentenced to the penitentiary shall escape, he shall on conviction thereof be punished, etc. The appellants were charged with the crime of attempt to escape as defined and set out in § 41-3513, supra.
As originally enacted in 1953, Ark. Stat. Ann. § 41-3513 (Repl. 1964) read as follows:
“Every person lawfully imprisoned in any jail or other place of confinement or held in custody of any officer, for any cause whatever, who shall escape or attempt to escape without the use of force or violence from such imprisonment or custody shall be guilty of a misdemeanor and upon conviction shall be fined in any sum not more than five hundred dollars ($500.00) or imprisoned for any time not to exceed six (6) months, or both.”
By Act No. 230 of 1967 violation, of the original 1953 Act was made a felony instead of a misdemeanor. Upon conviction under the 1967 Act, the penalty was fixed at imprisonment in the penitentiary of not less than one year nor more than three years. The ’53 and the ’67 Acts were amended in 1969 to the present form of Ark. Stat. Ann. § 41-3513, supra. Act 66 of 1969 is a short one-section Act and only adds to the statute as amended in 1967, the following:
“. . . provided however, that the sentence imposed under this provision for the crime of escape or attempt to escape from imprisonment or custody shall not exceed the period of confinement imposed for the conviction of the offense for which such person is imprisoned, or prescribed by law for the conviction of the offense for which said person may be in the custody of any officer.”
Act 66 of 1969 became effective on August 7, 1969; the informations were filed against the appellants on July 7, 1969, and they were tried and convicted on January 22, 1970. The amendment provided by Act 66 of 1969 makes it now necessary to not only show by competent evidence that a person being tried for attempt to escape was lawfully imprisoned, or held in custody at the time of the attempt to escape, but it must also be shown in order to fix punishment, “the period of confinement imposed for the conviction of the offense for which such person is imprisoned, or prescribed by law for the conviction of the offense for which said person may be in the custody of any officer."
There was no evidence at all in the case at bar that the appellants were lawfully imprisoned or held in custody. There was no evidence at all that they had even been sentenced to the penitentiary except the evidence that they were there. We conclude that the judgment of the trial court must be reversed and this cause remanded for a new trial.
Reversed and remanded.
Harris, C. J., dissents. | [
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Carleton Harris, Chief Justice.
This case relates to the rights of pretermitted children. Gero Ivanoff, a native of Bulgaria, who had lived in the United States since 1937, died a resident of Columbia County, the owner of the NWM of the SWÁ of Section 29, and the N/4 of the SEM of Section 18, Township 19 South, Range 20 West, Columbia County, Arkansas. By Will, he bequeathed and devised all of his property to his daughter Eva Ivanoff Christoff, and in the event that the daughter predeceased him, then to Betty Christoff Donofrio, now Betty Wensko, appellee herein. The Will, dated December 28, 1949, was admitted to probate in die Columbia Probate Court on May 26, 1961, and Lyle Dews, a resident of the county, was appointed Administrator with the Will Annexed. Eva Christoff died testate in Ohio on December 3, 1964, leaving appellee as her sole heir and devisee. The will of Eva Christoff was admitted to probate as an ancillary proceeding in Union County, Arkansas on May 15, 1967. The estate of Gero Ivanoff remained in probate until June 22, 1967, when it was closed and the court ordered the assets distributed.
In addition to Eva Christoff, Gero Ivanoff was the father of two other children, P. Encho Gerov Negovanoy, a/k/a Penio Geroff Negavanoff, and Elena Gerova Nacheva, a/k/a Elena Nikolova Macheva, but they were not mentioned in his will. These children instituted a suit in the Columbia County Chancery Court on October 23, 1967, for partition of the real estate heretofore mentioned. It developed that P. Encho Gerov Negrovanoy had died and the cause was revised in the name of his widow and two children. After the filing of an answer, an amendment to the complaint, and the propounding of interrogatories to petitioners, the case proceeded to trial, being submitted on the pleadings and exhibits offered. The court found the interest of each litigant in the property as follows:
Mariika Zhekova Negovanova 1/3 (life estate) of 1/3
Bozhana Peneva Peneva 1/6 (subject to above life estate)
Gercho Penev Negovanov Elena Nacheva, a/k/a 1/6 (subject to above life estate)
Elena Nikolova Macheva 1/3
Betty Wensko 1/3
However, the court denied the prayer for partition, and decreed Mrs. Wensco to be the owner of the property, free from any interest or claim of appellants.
From the decree so entered, appellants bring this appeal, asserting only that they are the owners of an undivided 2/3 interest in the land by virtue of being heirs of Gero Ivanoff, and not being mentioned in his will.
It might first be said that it is agreed that the Bulgarian children of Gero Ivanoff qualify as pretermitted children under the provisions of Sec. 60-507 (b) Ark. Stat. (1969 Supp.) Though recognizing this fact, appellee insists that she is entitled to prevail, first because appellants are barred by Sec. 62-2114 (b) Ark. Stat. (1969 Supp.), from claiming an interest in the property, and second because appellants are likewise barred by the doctrine of laches. It is pointed out that appellants admitted that they learned of the death of Gero Ivanoff in 1960, and further learned in 1964 that a will had been made by Ivanoff and that no property had been willed to them. We do not agree with the contention. Section 62-2114 deals with the time within which a will contest must be filed, and the action before us is not a will contest. As stated in Parker v. Bowlan, Executrix 242 Ark. 192, 412 S. W. 2d 597, a case which dealt with the rights of a pretermitted child, we pointed out that though a pleading was entitled “Petition for Contest of Will”, it actually was not such a contest, stating:
“It will be at once noted that there is no allegation that the will was not entitled to probate, either on the basis that it was not legally executed, or because of mental incompetency or undue influence. Generally speaking, a will contest is based on the allegations and contentions that no will exists, i. e., statutory requirements for execution of the instrument were not complied with — or, because of mental infirmities, the party was not mentally capable of making a will — or, in case of undue influence, the purported instrument was not the testator’s will but that of someone else. Appellant does not ask that the instrument be denied probate; he only asks that it be declared ineffectual as to Thomas J. Jarvis (Jeff Jarvis, Jr.), because Jarvis was not mentioned in his mother’s will.”
Of course, in the case before us, the pleading is simply a petition for partition, and there is no complaint that a will has been improperly admitted to probate. In fact, the suit was brought in the chancery court. The argument relative to the statute of limitations, as well as the contention that appellants are barred by laches is answered by our case of James v. Helmich 186 Ark. 1053, 57 S. W. 2d 829. Here again, the litigation involved the rights of children whose names were omitted from a will. In reversing the trial court which had held against the children, we said:
“Since there is no special statute of limitations providing when or the period within which pretermitted children must bring suit to recover their share in the estate, they had 5 years in which to do so under the provisions of the statute, § 6960, Crawford & Moses’ Digest. See also Hill v. Wade, 155 Ark. 490, 244 S. W. 743. The money was not paid by the executor to the church until March 2, 1928, and the rights of appellants could not have arisen until the wrongful distribution of such money, and the statute began to run against them on the said date of its payment, and they were not barred by the 5-year statute of limitations, this suit having been instituted in 1931. Neither were they barred by laches, having brought the suit within the time allowed”, [our emphasis]
Appellee attempts to distinguish the above holding from the case presently- before us by stating that there, the children had no knowledge of the death of their father until nearly two years after that event, while here, appellants received word of the death of Gero Ivanoff in 1960, some seven years before their petition was filed. We do not consider that to be material in the case before us, for the fact remains that we held in James that pretermitted children have five years after the wrongful distribution to commence proceedings. In the case before us, the order of distribution was not entered until June 22, 1967, and it is thus evident that appellants filed their suit in proper time. The italicized finding answers the argument as to laches. It follows that the decree of the chancery court must be reversed.
However, we agree with appellee that she is entitled to be reimbursed for 2/3 of the monies expended by her in protecting the estate from creditors, and in expenses occasioned by the administration. At the time the administrator sought approval- of his final accounting, the only assets of the estate were the real property herein involved, and cash in the sum of $193.24. In his final accounting, the administrator stated:
“The undersigned reports to this court that arrangements have been made by Betty Wensko, a beneficiary of the Estate in succession to pay the debts and court costs of the Estate in order that the Estate may be closed and distributed. The Administrator states that this court should set his fee, the attorneys fees, and accept this final account and close the Estate upon proof of satisfaction of all claims and costs.”
A fee of $1,000.00 was paid to the administrator by Mrs. Wensko out of personal funds and a fee was also paid by appellee to the attorney of the estate in the amount of $750.00. Of course, if she had been unwilling to advance personal funds to pay administrative costs and other debts of the estate, it would have been necessary to sell the realty here involved in order to pay claims. Thus, as it develops, Mrs. Wensko was taking care of the interests of appellants as well as her own interest. As far back as 1861, we recognized the right of one who, in good faith, pays just claims, to be reimbursed. In Brearly, ad. v. Norris, 23 Ark. 166, Chief Justice English made this point very clear. See also Security Bank & Trust Co. v. Costen. 169 Ark. 173, 273 S. W. 705, where we said:
“If the person who incurs the expense or advances the money to pay it is not a mere volunteer who acts officiously and without interest in the estate of the decedent, the charge against the estate inures to his or her benefit. This principle was announced by this court in the case of Brearly v. Norris. 23 Ark. 166, and the principle has been recognized by many decisions in other, states.”
There is no contention here that the claims and expenses paid were not valid, nor is there any question raised as to the good faith of appellee in making the payments. The record before us does not make clear the exact amount expended by Mrs. Wensko from personal funds for purposes of paying debts and administration costs of the Ivanoff estate; in fact, the amended answer filed by appellee asserts that these costs amounted to $4,781.06, but the brief sets out that the costs amounted to $2,550.00. Inasmuch as -it is necessary that the decre-e be reversed, we think it well that the chancellor make the determination of the actual amount paid.
In accordance with what has been said, the- decree is reversed with directions to enter a decree awarding appellants their respective interests in the lands at issue; provided however, that appellants shall pay 2/3 of the expenditures made by Mrs. Wensko on behalf of the estate; the court shall further fix a lien in appellee’s favor on appellants’ 2/3 interest in the lands to secure the payment of same.
It is so ordered.
Gero Ivanoff had also owned some land in Bulgaria which, according to answers to the interrogatories, had been given by him to the son, P. Enoch Gerov Negovanov prior to leaving Bulgaria. Also, according to the answers given to interrogatories, other property owned by Gero Ivanoff was divided after his death between his heirs in Bulgaria. The court found that appellants should be declared owners of the property just mentioned in Bulgaria, free of any interest or claim of Betty Wensco. Mrs. Wensco does not question this finding.
It is also agreed that Mrs. Wensco is entitled to all rights of her mother.
The litigation involved adopted children.
This corresponds to Sec. 37-213, Ark. Stat. Ann. (Repl. 1962). | [
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