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STATEMENT.
English, C. J.
Almeda Smith brought this suit for dower in the Circuit Court of Eranklin county against Perry F. Webb.
The bill alleged, in substance, that about the — day of -, 186 — , complainant intermarried with Robert C. Tweedy, who afterwards, on the 6th of April, 1870, died. That during their coverture, he was seized of an estate of inheritance in an undivided half of part of lot one, block five, in the town of Ozark, bounded as follows: “Beginning at the north east corner of said lot, thence west sixty feet, .thence south twi uty feet, thence east sixty feet, thence north twenty feet to the place of beginning.'"’
That under an order of the Probate Court of Eranklin county, made at its February term, 1880, R. Q. Shores, public administrator of the estate of complainant’s deceased husband, sold the above described real estate, on the 6th of March, 1880, at public sale, at the court house, &c., to pay the debts of the estate, subject to the homestead or dower right of complainant as late widow of said Tweedy, and defendant "Webb was the highest bidder therefor, and became the purchaser thereof,
That her dower in the lands and estates of inheritance of her deceased husband had never been allotted to complainant. That the land above described, on account of its dimensions, being only twenty feet wide and sixty feet long, would not admit of division without great injury to both complainant and defendant. That she being entitled to only one-third interest in the undivided half of said lot, would give her only one-sixth of twenty feet. That said lot on account of its location in the town of Ozark was very valuable, the undivided half interest, subject to complainant’s dower therein, having sold on the 6th of March, 1880, according to the report of the administrator, for $510.
Prayer that the lot be sold, and complainant be paid her dower interest out of the proceeds.
The suit was brought on 'the law side of the court, defendant answered, and on his motion the cause was transferred to the equity side of the court.
On demurrer to the answer, defendant was permitted to file an amended answer, in substance, as follows:
Defendant admits that complainant (now wife of Jacob Smith, who is not joined with her as a party), was married to Robei’t C. Tweedy, and that he.died, at the time alleged, seized in fee of an undivided half of the part of the lot described in the bill, but denies that it was sold under order of the Probate Court in the manner alleged. Avers the truth to be that Tweedy died seized not only of said undivided half of said part of said lot, but also of the whole of lots five, six, seven and eight, in block six, in the town of Ozark, each of which is sixty by one hundred feet in size. That he died insolvent, leaving no other real estate. That at the time of his death said part of lot one in block five was vacant, having no improvements upon it (except a small house afterwards burned down) and the same remains, and was at the time of defendant’s purchase, unimproved.
That the other four lots, viz : five, six, seven, and eight, in block six, were at the time of his death, enclosed with a substantial fence, and had a good dwelling house, kitchen, out houses, a well and other improvements thereon, and constituted the family homestead, and his family then occupied the same as his family residence, and complainant and her family have ever since occupied and resided on the same, and now occupy the same by virtue of her dower and homestead interest as "the widow of Tweedy.
■ That after the death of Tweedy, R. Q. Shores became public administrator of his estate, and there being a large amount of debts probated against it, application was made by said administrator, in due form of law, to the Probate Court for an order to sell all of said property to raise means to pay said debts: and the court by an order made on the 7th of August, 1879, and supplemental order made on the 3rd of February, 1880, reciting the facts of his pe tition, and that due notice of such application had been published, directed a public sale to be made of all of said property, by said administrator; such sale, after due notice, to take place on the 6th of March, 1880, at the court house door of said county, said property to be first appraised according to law; and the four lots, numbered five, six, seven and eight, in block six, should be sold subject to the homestead right of the widow, the complainant herein, but that said undivided half of said part of lot one in block five should be sold clear and free of any dower or homestead right of said widow.
A copy of the orders of the Probate Court is made an Exhibit to the answer.
The answer further states that the administrator, in pursuance of the order of sale, did on the 6th of March, 1880, proceed to sell all of such property at public auction, and complainant bid ofi and purchased said four lots constituting the homestead, subject to her own dower and homestead right, that is to say purchased the reversionary interest in them, at the sum of $167; and defendant purchased the said undivided half of said part of lot one in block five, not subject to any dower or homestead interest of said widow, at the sum of $510.
That the lots purchased by complainant, for the purpose of sale, were appraised, subject to said homestead, at $250, and the part of the lot so purchased by defendant, at $200. That the property so purchased by her was worth clear of dower and homestead $700, while the appraisment of said part of lot.one was its full value.
That complainant was enabled to get full title to said lots at the small sum of $167, by reason of her dower and homestead interest therein: and that defendant owned the other undivided half of said part of lot one, at the time of the sale, and was induced on that account, aud in order to make his own half available, to purchase the half that was for sale, and to give $510 therefor, Which was in fact more than double its value.
That the sale so made by said administrator was reported to the Probate Court, by him, and confirmed by the Court, &c., and that the administrator, upon the payment of the purchase money by complaiuant and defendant, on their respective purchases, executed deeds to them respectively.
Defendant’s deed is made an Exhibit.
And defendant alleges that the deed to complainant is in her possession, and he is not able to produce it, but prays that she may be compelled to produce it for the inspection of the court, &c.; and he alleges that her deed recites the order of sale, and that only the reversionary interest in' said lots purchased by her at the sale was sold, and purchased by her.
That she now is, and has been ever since the death of her husband, Tweedy, in possession of said four lots as her homestead and dower in the estate of said Tweedy, and which is largely more than she is or was legally entitled to, either as dower or homestead, or both,, in said estate.
Defendant makes his answer a cross bill, and prays that the above allegations may be taken as allegations of a cross-Dill; and that the possession and enjoyment of said four lots, maybe held to be possession of complainant’s dower and homestead in said estate, and that said four lots may be deemed to be an allotment of her dower and homestead; and that the part of lot one, block five, so purchased by defendant may be decreed to be exempt from all claims of dower or homestead on the part of •complainant; and defendant’s title and possession quiet ed in him as against all such claims of dower or homestead.
As a further defense defendant alleges that more than ten years elapsed after the death of Tweedy before the commencement of this suit, during all of which time said complainant wholly failed to set up any claim to dower in said part of lot, and therefore defendant insists that if complainant ever was entitled to dower in said part of lot, she is now in equity barred from the same by lapse of time and her own laches.
And for a further defense, defendant says that said Tweedy at the time of his death left heirs of his body him surviving, who are now living, and have an interest in the subject of this suit, none of whom have been made parties, as this defendant is ready to make appear.
The Court sustained a demurrer to the amended answer, defendant excepted, and declining to plead further, and it appearing to the Court that the part of lot described in the bill would not admit of division without essential injury to the parties, the Court decreed that it be sold, and appointed a Commissioner to make the sale and report at next term, and defendant appealed.
OPINION.
I. It was not necessary to make the heirs.at law Tweedy defendants to the bill for dower. Both the bill and answer show that they had been divested ot title to the real estate in which the appellee sought dower, by the sale to pay debts, made by the Administrator under order of the Probate Court Appellant purchased the interest of the heirs at the sale, and obtained the deed of the Administrator, and was the only necessary defendant to the bill.
II. N.or was the bill for dower barred by the Statute2. of Limitations, which did not commence to run in favor j? i n oí the appellant until he purchased at the sale made by tbe Administrator, which, was but a short time before the commencement of the suit. It does not run against a widow in favor of heirs, whose duty it is to assign her dower. Stidham and wife v. Matthews et al., 29 Ark., 660. Danley § Danley, 22 lb. 263. Livingston, Adm’r., v. Cochran et al., 33 lb. 294.
ITT. On the application of the Adminisirator for an order to sell the real estate to pay debts, the.Probate Court ordered the four lots to be sold “subject to the homestead interest of Almeda Smith, late widow of said ' .Robert C. Tweedy, deceased, and that the other real estate (the undivided half of part of lot one in block five, ' &c.) be'sold free of incumbrance as to the dower or homestead interest of said widow of said deceased therein.”
It may be remarked that Tweedy died in 1870, when the Constitution of 1868 was in force, which secured to his widow his homestead right during her widowhood, and on her marriage it went to his minor children if any during their minority. Secs. 4 and 5, Art. 12. It seems that appellee had married Jacob Smith before the order of sale was made, and her homestead right, whatever it ' may have been, had terminated.
If any homestead right remained, it must have been in Tweedy’s minor children, and not in his widow.
Appellant submits in his answer that by virtue of the order of sale, the sale made by the Administrator under ■ ' ° it,"l khs purchase, he acquired title to the undivided interest of Tweedy’s estate in part of lot one in block five, &c., discharged of any claim of homestead or dower.
The application of the Administrator to the Probate / Court for an order to sell the real estate of Tweedy to pay debts probated against the estate, was made under the statute regulating such applications, orders and sales, on public notice. Gantt’s Dig,, secs, 166 to 184,
. Lands arc assets in tlie hands of an Administrator for the payment of debts,- to the extent that they are subject to the payment of debts. But homestead and dower rights are (in the absence of certain special liens) superior to the claims of creditors. The application of the Administrator for an order of sale, must be treated asan application for an order to sell the real estate to the extent that it was assets in his hands subject to the payment of debts. The question of dower and homestead was not presented to the Probate Court for adjudication on such application. The widow and minor heirs were not called upon by the public notice of such application, to appear in the Probate Court and set up any right or claim to dower and homestead or either.
So much of the order therefore as directed the undivided half intere'st of the estate in the part lot in question to be sold free of the incumbrance of dower, &c., was the exercise of an excess of jurisdiction by the Probate Court, and null and void, and the sale made by the Administrator under it, and purchased by appellant, did not bar any right of dower which appellee had in the part lot. Livingston, Ad'r., v. Cochran et al., 33 Ark., 306.
Appellant therefore purchased subject to any right of dower she may have had. If he was induced by the form of the order to bid more for the interest of the estate in the part lot than ho would have done had the order of sale been in the form contemplated by the statute, it was not the fault of the appellee, who was not personally a party to the order, and in no way to blame, or responsible for the form in which it was made. Appellant bid at his peril, and if he mistook the law it was his own fault and misfortune.
There is no question of estoppel in the case. The answer alleges that appellee bid off and purchased the four homestead lots at the sale. Had it alleged that she was personally present when the Administrator offered the" part lot ior sale, that he proclaimed it to be sold‘discharged of her dower, that she had heard the proclamation, and was silent, then the question of estoppel, she being at the time a married woman and not sui juris, would have been presented. But such allegations are not made by the answer. See Wood and wife v. Terry et al, 30 Ark, 385.
IV, The following are the provisions of the statute bearing on the question of the right of appellee to have dower in the part lot in question:—
“A widow shall be endowed of the third part of all the lands whereof her husband was seized of an estate of inheritance at any time during the marriage, unless the same shall have been relinquished in legal form. Gantt’s Dig., sec. 2210.
“In all assignments of dnwer to any widow, it shall be the duty of the Commissioners who may be appointed to lay off the dower (if the estate will permit without essential injury) so to lay off'the dower in the lands of the deceased husband that the usual dwelling of the husband and family shall be included in such assignment of dower to the widow, lb. sec. 2228.
“The Commissioners appointed to lay off dower in the lands of the deceased husband shall, at the request of the widow to be endowed, lay off the same on any part of the lands of the deceased, whether the same shall include the usual dwelling of the husband and family or not. Provided, The same can be done without essential injury to such estate.” Ib. sec. 2229.
The first and second sections above copied are from the Revised Statutes, and the third section is a later en- / actment, and from the act of January 15iA, 1857,
It was under the third section that appellee elected to take dower in the part lot in question. Such election could be no essential injury to the estate, because when the election was made, it had ceased to have any interest in the part lot, and in the four lots on which Tweedy had his family dwelling, and he had no other real estate, it seems.
Appellee did not make a hard demand in her bill; she did not seek to have her dower right in all of the real estate of her deceased husband fixed upon, and carved out of the part lot of which appellant had become the purchaser at the administrator’s sale, which might have taken all of it. She asked to be endowed of a third part of it only. Her deceased husband owned an undivided half of the part lot, the whole of which was but twenty by sixty feet, and her dower claim was only a third of the half, equal to three feet and one-third by sixty feet. And this she did not pray to be assigned to her by admeasurement to the injury of appellant, hut that the land he sold, and her dower right partitioned out of the proceeds.
Y. Appellant, moreover, submits that appellee had deprived herself of any right to have dower in the part lot, by purchasing the reversionary interest in the homestead lots at the administrator’s sale. That she purchased subject to her homestead and dower rights in the four lots, paid less than their value in consequence thereof, and her rights to dowér in the whole of the real estate of her deceased husband should therefore be fixed upon and confined to the four lots. This would be to deprive her of the rights of election, which the third section copied above from the dower statutes gave to her, and to disregard a plain provision of law. What^did she do to forfeit her right of dower in the land purchased by appellant at the administrator’s sale ?
The Probate Court ordered the administrator to sell the four lots subject to her homestead right, when it seems she had none. If there was any homestead right, it must have been in the minor children of her deceased husband, if there were any. She was not to blame for the'form in which the order of the Probate Court was made. She had nothing to do with the making of the order. As matter of law, the sale by the administrator was made subject to any homestead or dower right that existed at the time, in the four lots, and that any bidder was bound to know. She had the same right to bid for the lots that any other person had. She was the highest bidder, and became the purchaser of the lots. No misconduct to prevent competition in bidding is imputed to her.
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Smith, J.
John B. Caldwell, died in Pope county in the year 1870, seized of 270 acres of land, all of which he devised to his son. Moses EL, besides bequeathing to him the greater part of'his personal estate. The will was proved and Moses qualified as Executor. He seems to have neglected one very important duty of an Executor, viz: to pay the debts of his testator. For we find that his successor in the administration — the present appellee —applied to and obtained from the Probate Court license to sell these lands upon a petition suggesting that the personalty of the deceased had been squandered and his debts had been left unprovided for.
It further appears that Moses had in 1876 mortgaged 130 acres of the land to secure his own private debt; that this mortgage had afterwards been regularly foreclosed by a decree of the Pope Circuit Court, and that at a Com- ' missioner’s sale had in pursuance of said decree Howell, the appellant, had purchased the mortgaged premises and was now in possession of the same.
Howell seeks to enjoin the sale of this tract of one hundred and thirty acres upon.the ground that the remaining •one hundred and forty acres are amply sufficient to satisfy all the debts of John B. Caldwell, and such a sale would cast a cloud upon his title. Upon demurrer the Circuit Court dismissed his bill.
An heir or devisee takes the estate subject to the debts of his ancestor or testator; and he can transfer to other no greater right or interest than he himselx s esses, Howell, by virtue of his purchase, takes the land subject to all the liabilities, and'he is clothed with all'the rights which attached to it in the hands of Moses.
. All the lands of the testator,may he sold, if they are required, to pay his debts. But Howell, who has acquired the devisee’s title to a part of the lands, has an equity to have the assets marshalled so as to place the burden where it must ultimately rest, namely, upon, such of the lands as,the devisee has not alienated.
“Where one party has a lien on or interest in two estates and another has a lien on or interest in one of those estates only, the latter is entitled to throw the former upon that estate which he cannot reach, if that be necessary to adjust the lights of both parties and can be done without prejudice to him who holds the double security. In administering these equities, the Court does not assume to divest or postpone incumbrance, but simply to so apply and limit it, that equal justice may be done to all concerned in the fund to which it attaches.” Agricultural Bank v. Pallen, 1 Freeman, Ch. 419; 8 Smedes & Marshall, 337 ; Merry v. Roselle, 32 Ark., 478.
Thus, if a judgment is rendered, which is a lien on the defendant’s land and he sells and conveys part of it, the judgment creditor ought and indeed may be compelled to proceed in the first instance against the unsold portion. Mevey's Appeal, 4 Barr, 80 ; In re McGill, 6 Id. 504; Chapin v. Williams, 9 Id. 341; James v. Hubbard, 1 Paige, 228; Watson v. Bain, 7 Maryland, 117; Gill v. Lyon, 1 Johnson, Ch’y., 447; Clowes v. Dickinson, 5 Id. 235; 8. C., 9 Cowen, 403.
The decree below is reversed and the cause remanded with directions to overrule the demurrer to the bill. | [
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Smith, J.
London filed his bill for partition of eighty acres of land, claiming to be the owner .of an undivided one third share or part thereof. The answer denied that the plaintiff had any interest in the premises and alleged that the defendant, Mary Overby was seized in fee and in actual possession of the whole tract. The proofs showed that Mrs. Overby, through her tenant had been in possession for three or four years, enjoying the rents and profits, without accounting to the plaintiff or those under whom he claimed, and without acknowledging his title. The Circuit Coart dismissed the bill without prejudice to the plaintiff’s right to bring an action at law.
In Byers v. Danley, 27 Ark., 77, it was ruled that partition could not be had of lands held adversely, or the title to which was in dispute ; an exception being made in favor of vacant lands, where there is no actual posession, but only that constructive possession which is connected with the legal title. That decision was in accord with the general current of adjudications in those States where the powers of a Court of Chancery to try disputed questions *of titles have not been enlarged, as may be seen by reference to Freeman on Cotenancy and Partition, Secs. 447, 501 et seq and cases there cited.
Partition was originally only a possessory action., It left the title where it found it. It lies only for those who are in possession as joint tenants, tenants in common or coparceners. Gantt’s Digest, Sec. 4808.
If the plaintiff is a tenant in common with Mrs. Overby and has been ousted, or his rights totaly'denied by his cotenant, his remedy is plain, adequate and complete at law, viz: by ejectment, in which action he may recover his just proportion of the land and also of the rents and profits. Gantt’s Digest, See. 2259; Trapnall v. Hill, 31 Ark., 345.
The court might, instead of dismissing, have retained the bill for a reasonable time, with liberty to the plaintiff to bring such action as he might be advised to establish his title. But this was matter.of discretion and the plaintiff’s right to litigate the title is saved.
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S. W. Williams, Sp. J.
The Plaintiff, John P. Moore, brought an action of ejectment in this case in the Circuit Court of Phillips county against the defendant for certain lands, described in the complaint, lying in that county, to the possession of which plaintiff averred that he was entitled, and that the defendant withheld it. The complaint exhibits, and plaintiff claims title under the following conveyances :
1. A deed to Thomas M. Jacks from Jacob Trieber as commissioner appointed by a decree of the Circuit Court of Phillips County, rendered on the 20th day of May, 1876, in a certain cause therein pending, wherein S. P. Delatour was plaintiff, and S. W. Woodall, BythénaE. Woodall, Arthur B. Woodall, Mary E. Woodall and D. E. Holland as guardian of said Bythena E., Arthur B., and Mary.E. Wood-all, were defendants, which deed was dated the 27th day of May, 1878.
This deed recites the rendition of the decree in the above cause, for four hundred and sixty two 85-100 dollars and cost, and the order to sell in default of payment. That the Commissioner advertised and sold the land on tour month's credit, on the 26th day of May, 1877, in front of the court house at Helena, and after making all necessary recitals to make the deed good on its face, in consideration of the amount of six hundred and fifty dollars bid and paid by Jacks, the Commissioner conveyed the land, to him. This deed was acknowledged and approved in open court.
2. A deed of Thomas M. Jacks and wife, and L. A. Fitzpatrick to plaintiff, dated 15th day of July, 1879.
3. Several tax deeds for different portions of the land made to plaintiff as assignee of Jacks, under purchases made by him at a tax sale on the 11th day of June, 1877, are also exhibited as a further evidence of title in plaintiff.
Arthur B. Woodall, Mary E. Woodall and Willie N. Woodall, on their motion and disclosure of interest, were made parties defendant; Arthur B , and Mary E., acting by their guardian, and Willie N. Woodall acting by next friend in applying to be made parties. They answer by guardian denying the ownership of the plaintiff to the lands in controversy ; allege that the lands were the property of S. W. Woodall in his lifetime, and that they were his sole heirs at law. They deny the plaintiff’s right of possession and deny that Mrs. M. J. Woodall, the original defendant, is in possession, but admit that she is in possession of 40 48-100 acres of it, which they describe, and that they are in possession of the remainder. The answer attacks the deeds and the decree of 1876 in the Delatour case, and averred that it was null and void for errors apparent upon its face, as well as for erroneous proceedings against themselves as infants. They proceed in this answer to set out objections to the several tax deeds and moved to transfer the cause to the equity side of the docket. On the 11th day of May, 1880, the cause was so transferred, and leave was given the infants to file a cross bill against plaintiff and such other parties as they might deem proper, and they filed a cross bill against plaintiff and Thomas M. Jacks, S. P. Delatour and M. J. Wood-all..
They averred that they were infants of tender years, aged respectively seventeen, fifteen, and six years. That their late father, S. W. Woodall, died intestate, on or about the year 1871, seized and possessed of the premises described in the original complaint. That upon his death the lands descended to them and brother, By than E. Woodall, as his sole heirs at law. That Bythan, their brother, had since died (this record nowhere informs us when), and the plaintiffs in this cross bill are his only heirs and are in possession of all the land except the dower above mentioned.
That M. J. Woodall made some arrangement with Delatour for the payment of the taxes of 1873 upon all the lands ; that he paid them and afterwards exhibited in Court below his bill for the enforcement of a supposed lien in his favor as an agent for the payment of said taxes against these “plaintiffs” and others and on the 20th day of May, 1876, obtained a decree condemning the lands to be sold for the satisfaction of said lien. Said lands were accordingly sold by the Commissioner to defendant Jacks and conveyed to him, and that Jacks conveyed to Moore. The plaintiffs in the cross bill exhibit a copy of the Delatour decree and proceed to assign errors, irregularities and defects in it.
This decree is based upon a claim for a lien as stated in the crossbill. M. J. Woodall, D. E. Holland as guardian of Bythena, Arthur B., and Mary E. Woodall, and said minors by name were made defendants to Delatour’s bill and were served with process, and a decree was rendered condemning the land, and Jacks, a stranger to the proceedings, and for aught that appears here, without notice of any irregularity or defect, bought the lands in the proceedings.
Counsel here claims that Willie N. Woodall was not a party to the Delatour suit, and the partial transcript they exhibit here does not disclose her name. Nor does it appear in the copy of the complaint in that case, but in the copy of the decree the cause is entitled, “Samuel P. Delatour v. S. W. Woodall and others.” Now in the cross bill so far from averring that she was not a party, Willie N., as one of the plaintiffs, by her next friend, says that the suit “was against plaintiffs,” in this cross bill, of which she was one. If she had made that issue, Moore would have been at liberty to have corrected it and shown that she was in some mode made a party, and was one of the “others” against whom the decree was rendered.
Both in this case and in the Delatour case, Mrs. Woodall, the mother, seems to be called M. J., and sometimes Mrs. S.
W., and sometimes S. W. Woodall, while Bythan is sometimes ealled Bythena in both cases.
In the Delatour case Mrs. Woodall, Bythena E. Woodall, Arthur B. Woodall, Mary E. Woodall and Holland, their Guardian, were made parties and were served with process. The Court committed an error in holding that Delatour had a lien, as held by this Court in the case of Peay, ad’r. of Shall v. Field, 30 Arkansas, 600.
The infants — defendants—in the Delatour case were ed with process and their Guardian was made a party, and served with process. It was his duty to defend the action as well as his right, Gantt’s Digest, See. 4493. Where regular Guardian is before the Court there is no necessity or propriety in appointing a Guardian ad litem. We therefore fail to find the irregularity complained of. To have declared a lien on the land in favor of Delatour was a serious error the Court. But did it avoid the decree or make it null?
For unless this was so, Jaek’s title under the Trieber deed, is good.
The Court below seems to have treated the cross bill' of these parties as being in the nature of a bill of review; and that Court rendered a decree setting aside Jack’s deed from Trieber as Commissioner under the Delatour decree, adjusted the Equities and right of redemption for the taxes paid under the Delatour decree as well as under the tax purchases of 11th of June, 1877.
It is needless for us to inquire here whether this was abstractly a right or wrong practice, or whether a bill of review would or would not lie. For if the Delatour decree is not void, then any purchase under it while in force by a stranger to the record, having no trust relation to the parties, and no notice, would be good.
Notwithstanding the error the Court had jurisdiction of the subject matter, liens on real estate, and of the parties, in the Delatour case, and to hold its error fatal to any title acquired under its decree, would be more disastrous to the public interests than the loss of one estate, or even more, to one or more litigants.
It is a rule long established and rigidly adhered to in this Court, that it will not inquire collaterally into more errors or irregularities. It is equally well settled, that a stranger who purchases under a decree, while in full force, unsuspended and unreversed, is protected in his purchase, though the judgment or decree may afterwards, in a direct proceeding, be set aside; so that it follows, that even if we treat this cross bill as a bill of review, and therefore a direct proceeding to vacate the decree, still with the decree vacated, Jacks’ purchase stands. The decree is satisfied because the record discloses the fact that an excess of purchase money in the Delatour case was realized from the sale of the land.
For this error the decree of the Circuit Court of Phillips County in this case must be reversed. But as it does not clearly appear that Willie N. was a party to, or bound by the Delatour decree, and as a minor she should not, while opportunity remains to correct, be held responsible for the errors of her Guardian in preparing the cross bill and the apparent admission may not be true, she should have leave to amend.
The cause will be remanded to the Court below with instructions to dismiss the cross bill, as to Arthur B. Woodall and Mary E. Woodall, that they be held upon the original complaint to an account for rents and. profits, which must be taken by a motion in the ordinary .mode in Chancery causes. That if Willie N. Woodall can amend her complaint so as to show that she was not a party to the Delatour case, that she be allowed to do so; and that each party be allowed to amend their pleadings, and proceed with the cause when amended, according to law. That a decree be rendered in favor of Moore, the plaintiff, for the following interests in said land: Mrs. M. J. Woodall’s dower and interest, of Bythena E. Woodall, Arthur B. and Mary E., in all the land, and if upon a hearing it shall be found that Willie N. was duly made a party, and was before the Court in the Delatour case, then the Court will decree her interest also, and proceed against the other defendants, the heirs of S. N. Woodall. If, on the contrary, it shall appear that she was not a party to that suit, the Court will, upon her cross bill, decree to her her part of the land subject to a lien for the taxes paid by Jacks and Moore, and if the parties so amend their pleadings the Court may direct partition of the land, otherwise to be held as tenants in common, as it is evident that Jacks bought the land in 1877 for non-payment of taxes, at a time when in any view of the case he had the larger interest.
He could not buy his land, in order to get at the interest of his co-tenant, if she was such. But Moore is entitled to be subrogated to his rights and to a lien as against Willie E Woodail’s interest, if she has any, for her proportion of all taxes paid on the land by Jacks and Moore. She asks to have the tax deeds set aside. If she would have equity she must do equity. The court will cancel the tax deeds and declare the proper proportional amount of taxes paid on the land, a lien on any land or interest therein which may be decreed to Willie N.
Let the cost of this Court be equally divided between the parties.
The Court below, on the final disposition of the cause, will decree costs of that Court according to the rules of equity.
W. W. Smith, J., did not sit in this case. ■ | [
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George Rose Smith, Justice.
This is primarily a dispute between two rival factions that were stockholders in an Arkansas corporation, Arkota Industries. In 1970 Charles E. Naekel, a resident of Rogers, was promoting an idea he had for the manufacture of sets of shelving, to be sold by retail furniture stores. He interested two North Dakota farmers, Stedman and Pueppke, in investing in the forma tion of Arkota Industries, to make the shelving. The company began business in Rogers in 1971 and later moved to North Dakota. The trial judge commented that it was undercapitalized from the start. Stedman, Pueppke, and other North Dakotans had to make substantial investments in the venture from time to time, at $100 a corporate share. Naekel, who was the first president and manager of the concern, invested no money in it, but he was eventually allotted 700 shares of stock, of which he had 200 shares issued to his son Gerald and 50 to his son Bob.
To what extent the venture was actually profitable is in dispute. In 1973 or 1974 the company’s accountants raised a question about the validity of the Naekel shares, owing to a doubt whether adequate consideration had originally been given for that stock. See Ark. Const., Art. 12, § 8. In May, 1975, the directors voted to oust Naekel as president and to cancel all the Naekel stock. Naekel protested the cancelation. In June of that year he settled his dispute with the corporation and the other faction by accepting about $7,600 in cash, two months’ termination pay, and 50 shares of stock. A release agreement was signed by Naekel and by the lawyer then representing him. The cancelation of the shares issued to Naekel’s sons was not affected by that settlement.
Naekel then organized Naekel Industries, Inc., to make similar shelving at Rogers. In 1977 the three Naekels brought this suit against Arkota Industries and the North Dakota stockholders, asserting that the defendants had wrongfully converted the plaintiff’s stock by canceling it and had made slanderous statements about Naekel and his new company. Eventually that company was brought in as a party. There were various cross-demands between the opposing factions. The jury made only three awards: $20,000 to Gerald Naekel for the conversion of his 200 shares, $5,000 to Bob for the conversion of his 50 shares, and $1 as their punitive damages. On direct appeal Arkota Industries and the individual defendants argue two points for reversal. On cross appeal Charles Naekel and Naekel Industries argue two other points. Our jurisdiction includes tort actions. Rule 29 (1) (o).
First, on direct appeal, the court was right in directing a verdict for Charles and Bob Naekel on the issue of the defendants’ liability for conversion. Apart from the question of the market value of the stock, which was submitted to the j ury, the only issue on this phase of the case was whether the stock was cancelable for inadequacy of the consideration originally given for the shares. When, as here, the rights of creditors are not involved, the judgment of the directors or stockholders about the adequacy of the original consideration is conclusive in the absence of fraud. Ark. Stat. Ann. § 64-205 (C) (Repl. 1980); Murray v. Murray Laboratories, 223 Ark. 907, 270 S.W. 2d 927 (1954), relying upon a similar earlier statute. There is no assertion of fraud in the original transaction. Hence the stock was not subject to cancelation.
On the second issue, however, the appellants are right in insisting that the trial court erroneously instructed the jury that Gerald and Bob’s stock was presumptively worth its par value ($100 a share). Corporate stock’s par value has no direct bearing upon its market value years later, because the company may either have prospered or lost money. Consequently we have adopted the majority view that rejects a presumption that par value is also market value. Beaty v. Johnston, 66 Ark.529, 52 S.W. 129 (1899). That case is not distinguishable on the ground that it was an action in contract rather than in tort, for in both instances the controlling issue is the market value of the stock.
Nor was the error harmless. It is immaterial that there was evidence that the stock was worth more than $ 100 a share at the time of its conversion, for there were also accountants’ figures to show that it was worth less. Nor does it matter whether the appellants’ own proffered instruction about the determination of market value was correct, for they simply asked that the court eliminate the reference to the presumption in the appellees’ proffered instruction, which the court would not do. The error was not harmless, because the jury awarded $25,000 for 250 shares, which was the presumed value to the penny.
On cross appeal neither of the two points argued requires a reversal. The court properly granted a partial summary judgment against Charles Naekel, finding that his affidavit in response to the motion contained no basis for a finding of fraud with regard to the release executed by him and his lawyer. Nor does there appear to have been any violation of a fiduciary duty owed by the other corporate officers to Naekel. The only such duty that occurs to us is that of full disclosure, but the affidavit suggests no concealment on the others’ part. Second, the court properly refused a proffered instruction with respect to the defendants’ possible violation of our Unfair Practices Act, Ark. Stat. Ann. §§ 70-301 et seq. (Repl. 1979), for the requested instruction contained several provisions of the statute that were not pertinent to the case and might have been confusing to the jury. Coca-Cola Bottling Co. of Blytheville v. Doud, 189 Ark. 986, 76 S.W. 2d 87 (1934).
We mention one other matter. Counsel for the appellees submitted a 34-page supplemental abstract, for which they ask an allowance to their clients of $68 for printing expense and $300 for attorney’s fees. The appellants dispute the need for a supplementary abstract and protest any award of compensation for its preparation.
Our Rule 9 (e) (1) authorizes such allowances, but we take this opportunity to explain that the Rule was intended merely to provide reimbursement to an appellee when there has been a clear-cut and demonstrable failure by the appellant to abstract matters essential to a full consideration of the issues raised by the direct appeal. Here there were no specific, discernible omissions in the appellants’ abstract of the record. It was at most a matter of judgment whether the appellants’ presentation should be supplemented by additional details. In such a situation the Rule does not create a lawsuit within a lawsuit for our decision. We do not award compensation for such a discretionary supplement to the abstract, leaving it instead to the appellee’s counsel to decide whether he should provide additional abstracting at his client’s expense, just as he must decide the appropriate length of his brief with its attendant expense. The appellees’ motion is denied.
Reversed on direct appeal, affirmed on cross appeal. | [
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Richard B. Adkisson, Chief Justice.
A jury awarded appellant, Laudis Freeman, $70,000 in damages against appellees for an assault which had occurred on December 10, 1976. The trial court granted appellee’s motion for a new trial, setting aside the verdict and judgment on the grounds that the award of damages was excessive. The granting of this motion is now appealed. We affirm.
The evidence on which the jury based its award can be summarized as follows:
Appellant is a 52-year-old barber who has had back trouble since age 18. He has been hospitalized for back problems five times between 1969 and 1975, and has had surgery on his back. After the assault he had more trouble with his back and legs, so he went to the doctor who had treated his back previously. This doctor found a general worsening of his low back condition, but stated this was not based upon specific findings from his examination but was based on what appellant told him. However, X-rays revealed that appellant had a compression fracture at the lumbar one level which was not there in 1975. The doctor stated that this could be attributed to the fight. The doctor found a ten percent worsening of appellant’s condition from 1975 to 1977 and stated that there would have been degenerative changes even if there had not been a fight. He was pessimistic about appellant’s ability to continue working as a barber.
Appellant testified that he had not been able to work as a barber since the fight, and that in 1976 he earned $2,932.15 as a barber, and in 1977 only $317.78. He had $476.50 in medical bills because of the fight. He takes muscle relaxers and other medication to ease the pain in his back and spends most of his time in his recliner. He can no longer hunt or fish and must hire someone to repair his rental property. He was emotionally upset about the fight, and “broke down and cried” about it, according to one of his friends.
The jury was instructed to reasonably and fairly compensate appellant for any of the following elements of damage found to be proximately caused by the appellee:
First, the nature, extent, and duration of any injury and whether it is temporary or permanent.
Second, the reasonable expense of any necessary medi cal care, treatment, and services received.
Third, any pain and suffering and mental anguish experienced in the past.
Fourth, the value of any earnings lost.
Our cases have held that the granting of a new trial addresses itself to the sound discretion of the trial court, and this Court will not reverse a trial judge’s granting of a new trial unless it appears that he has abused his discretion. Heil v. Roe, 253 Ark. 139, 484 S.W. 2d 889 (1972). This is because the trial judge’s opportunities for passing upon the weight of the evidence are far superior to those of this Court. Abuse of discretion in granting a new trial means a discretion improvidently exercised, i.e., exercised thoughtlessly and without due consideration. Blackwood v. Eads, 98 Ark. 304, 135 S.W. 922 (1911). Under the circumstances of this case we are unable to say that the trial judge exercised his discretion improvidently by the granting of a new trial.
Affirmed.
Purtle, J., dissents. | [
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Steele Hays, Justice.
Appellants are four householders of Washington County residing within an area affected by Ordinance No. 80-5, adopted by the Washington County Quorum Court on February 14, 1980. The ordinance imposes an annual fee of $15.00 on each household (except those served by another company) to meet the cost of providing emergency medical services to the area. The ordinance was submitted to a referendum election and was ratified by a vote of 3,437 to 1,807.
After ratification Washington County entered into a contract with Central Emergency Medical Service, Inc., leasing ambulances and equipment to the corporation, which agreed to provide continuous emergency medical services to the area. The county provided the funds necessary for CEMS to operate under an approved budget. On termination or default, the leased equipment reverted to the county.
Appellants filed suit challenging the constitutionality of the ordinance, the legality of the $15.00 fee, seeking a restraining order against further collections and a refund of all amounts collected. Over objection from appellants, CEMS and the city of Fayetteville were permitted to intervene.
The case was heard on a stipulation of facts and on cross-motions for summary judgment. The chancellor held the annual levy was a fee for services rather than a tax, that the ordinance did not violate the Constitution of Arkansas by lending the credit of the county, nor operate to deny appellants equal protection of the law, or take property without due process, but that the ordinance was not adopted in accordance with Act 51 of 1979 (Ark. Stat. Ann. § 82-3410 et seq.) and, hence, invalid. He declined to order a refund of undistributed fees totaling $56,326.40. Both sides appeal, alleging a number of errors. We affirm on appeal and reverse on cross-appeal.
It should first be mentioned that appellees have challenged appellants’ abstract under Rule 9. The abstract is seriously inadequate. Without the supplemental abstract, it would be wholly impossible to follow the arguments without consulting the single record, which greatly hampers review. When the abstract omits the ordinance under attack, the chancellor’s memorandum opinion, the final order, all exhibits, and portions of pertinent testimony, it becomes impossible to understand and weigh the arguments so that they may be fairly decided. On request, appellees’ time and cost in supplying a supplemental abstract will be allowed.
Before considering substantive issues we take up the procedural argument that the chancellor erred in permitting interventions by the city of Fayetteville and CEMS under A. Civ. P. Rule 24 (b). He found the intervenors had a vital interest to protect and had questions of law and fact in common with the primary litigation. Permissive intervention under Rule 24 (b) is discretionary and subject to reversal only upon a showing of abuse. Pulaski County Board of Equalization v. American Republic Life Insurance Co., 233 Ark. 124, 342 S.W. 2d 660 (1961). We find no showing of the wrongful exercise of discretion; indeed, the interest of the intervenors in the litigation seems clear.
Next, we consider the argument of cross-appellants that the chancellor erred in holding (1) that Ordinance No. 80-5 was improperly enacted and (2) that there was no substantial compliance with Act 51. We agree the chancellor erred and must be reversed. Two recent acts are relevant to the issue: Act 742 of 1977, the “Arkansas County Government Code” enacted pursuant to Amendment No. 55, and Act 51 of 1979, which dealt more specifically with emergency medical services and imposed procedures not appearing in Act 742. The basic questions raised are under which of the two acts could Ordinance No. 80-5 be enacted, and whether the procedures followed by the Quorum Court in adopting the ordinance were sufficient to meet the requirements of those acts.
The Quorum Court originally elected to proceed under Act 742, however, approval of the proposal was submitted to a referendum petition giving some indication of an intent to proceed under Act 51.
Relying on a general principle of statutory construction, the chancellor held the specific grant of authority under Act 51 was controlling over the general grant of authority under Act 742 and consequently the procedures and requirements of Act 51 must be met.
The chancellor correctly found Act 742 (Ark. Stat. Ann. § 17-3801 et seq.) gives the Quorum Court authority to provide for emergency medical services but held that the authority created under Act 742 is limited by the procedural requirements of Act51. Namely, the Quorum Courtmustset a date for a public hearing on the question and cause notice of the time and place of the hearing to be published in a newspaper of general circulation in the county or in the area proposed to be served. Further, the ordinance “shall specifically describe the area to be included within the system, describe the services to be provided the residents of the area and shall specifically state the estimated cost of the services. ...” (Section 82-3411.) The chancellor found the evidence insufficient to satisfy the requirements of a public hearing, publication of notice, and found the ordinance did not sufficiently describe the services to be provided.
Cross-appellants contend Act 742 and Act 51 provide alternative procedures for establishing emergency medical services and the Quorum Court elected to proceed under Act 742. Their argument is bolstered in the light of the language of Section 7 of Act 51, which provides:
The procedures prescribed herein for the establishment of an emergency medical services program and the furnishing of emergency medical services shall be supplemental to and shall not be construed to repeal or modify any law presently in existence relating to the furnishing of such services. (Emphasis supplied.)
Curiously, Section 6 of Act 51 specifically imposes the same notice of hearing and referendum requirements to enact an ordinance levying service charges for any emergency medical services programs established prior to the act and Section 8 states that all laws and parts of laws in conflict are repealed.
A universal rule in construing statutes, and a settled maxim of the common law, is that all acts passed upon the same subject are in pari materia, and must be taken and construed together and made to stand if capable of being reconciled. McFarland v. Bank of State, 4 Ark. 410, 4 Pike 410 (1842); Morrison v. State, 40 Ark. 48 (1883); Sargent v. Cole, 269 Ark. 121, 598 S.W. 2d 749 (1980). Interpreting Act 51 in harmony with Act 742 is difficult, at best, and can be accomplished only at the expense of plausibility. Under Act 51 the Quorum Court must set a date for a public hearing and publish notice of the time and place, whereas under Act 742 no such requirements are imposed. If the acts were intended to provide alternate methods, then Act 51 would be effectively rendered a nullity, as there would be no reason for a Quorum Court to choose the more arduous route required by Act 51 when it could accomplish the same result more easily under Act 742. Where statutes cannot be reconciled through interpretation, then construction is the proper course. The cardinal rule in construing statutes is said to be that it is the duty of the court to ascertain and give effect to the intention of the Legislature. We believe the chancellor was correct in finding that Act 742 is governed by the requirements of Act 51, as this is the only logical interpretation that gives effect to both acts. John May Company v. McCastlain, 244 Ark. 495, 426 S.W. 2d 158 (1968); Perry County v. House, 196 Ark. 317, 117 S.W. 2d 342 (1938).
Cross-appellants also argue that the procedures followed by the Quorum Court substantially complied with the hearing, notice and referendum requirements of Act 51 and that the referendum election at which Ordinance No. 80-5 was approved cured any procedural defects. The argument is convincing. In enacting the ordinance, the Quorum Court (1) set a date for public hearings on the question of providing emergency medical services to a designated area of the county, (2) published notice of dates, time and place of each hearing in a newspaper of general circulation in the county and the area proposed to be served, (3) gave all interested parties residing in the designated area an opportunity to appear and be heard for or against the proposal, and (4) described the area to be included (six specified school districts), the services to be provided (emergency medical services, defined in Act 51 as “the transporting of the acutely ill or injured and the medical care provided to such person prior to arrival at a medical facility”), the estimated cost ($15.00 per household) and the proposed method of financing (a fee of $15.00 per household).
On November 8, 1979, the Quorum Court set two dates for public hearings: December 4, 1979, in West Fork and December 6, 1979, in Fayetteville. Notice of the dates, time and place of these hearings was publicized through frequent newspaper articles in three of the largest newspapers of general circulation in the county; the hearings were well attended. From November 9, 1979, to June 22, 1980, no less than 40 prominent news articles appeared informing the public of the proposal to provide emergency medical services to those parts of Washington County no longer receiving services. On June 24, 1980, the ordinance was approved by a decisive vote: 3,437 for to 1,807 against. Certainly the thorough news treatment given the ordinance afforded the electors actual notice of what they were voting on.
In Hildreth v. Taylor, 117 Ark. 465, 175 S.W. 2d 40 (1915), we adopted the rule of substantial rather than strict compliance in connection with requirements of providing notice in a newspaper on a referendum of a constitutional amendment, stating:
. . . (A) literal compliance is not required, and that a failure to publish the notice within the time specified does not itself prevent the people from adopting a measure at an election as specified in the Constitution. In order to defeat the submission, it must at least be shown that the omission to publish amounted to such a radical disregard of the requirements imposed by the legislature that it probably affected the result of the election. At 471.
Section 3 of Act 51 directs that “the ordinance shall be subject to the referendum which may be exercised in the manner prescribed in Amendment 7 to the Constitution of Arkansas.” On several occasions this court has employed a liberal attitude toward referendums in meeting the requirements in Amendment 7: Johnson & Rosenkrantz v. Munger, 260 Ark. 613, 542 S.W. 2d 753 (1976); Coleman v. Sherrill, 189 Ark. 843, 75 S.W. 2d 248 (1934); Reeves v. Smith, 190 Ark. 213, 78 S.W. 2d 72 (1935).
In Leigh v. Hall, 232 Ark. 558, 339 S.W. 2d 104 (1960), we said, “This court is definitely committed to the proposition that Amendment Seven should be liberally construed to effectuate its purpose.”
Where the voters have overwhelmingly approved a county ordinance whose ballot title contains sufficient information to enable them to cast their ballots with a fair understanding of the issues presented, we deem it our duty to sustain the election. Becker v. Riviere, 270 Ark. 219, 604 S.W. 2d 255 (1980). In Orr v. Carpenter, 222 Ark. 716, 262 S.W. 2d 280 (1953), we declared the approved rule to be:
All provisions of the election law are mandatory, if enforcement is sought before election in a direct proceeding for that purpose; but after election all should be held directory only, in support of the result, unless of a character to affect an obstruction of the free and intelligent casting of the vote or to the ascertainment of the result, or unless the provision affects an essential element of the election, or unless it is expressly declared by the statute that the particular act is essential to the validity of the election, or that its omission shall render it void.
The chancellor’s holding that Ordinance No. 80-5 is invalid because of procedural defects is contrary to the general rule that “after the election shall have been held, general provisions must yield in order to support the result of the election. ” McKenziev. City of Dewitt, 196 Ark. 1115, at 1118, 121 S.W. 2d 71 (1938); Johnson & Rosenkrantz v. Munger, supra. In Beene v. Hutto, 192 Ark. 848, 96 S.W. 2d 485(1936), we held that insufficiency of a petition to initiate local law was of no consequence after the question was voted on and passed. It is the duty of the Court ‘‘to sustain elections which have resulted in a full and fair expression of the public will.” Chaney v. Bryant, 259 Ark. 294, 532 S.W. 2d 741 (1976). Moreover, the chancellor’s memorandum opinion (T. 107) incorrectly placed the burden of proving the sufficiency of the public hearing and publication of notice of the hearing on the proponents of the ordinance rather than on the opponents, where it rightfully lay. Delony v. Rucker, 227 Ark. 869, 302 S.W. 2d 287 (1957); City of Little Rock v. Linn, 245 Ark. 260, 432 S.W. 2d 455 (1968). It is incumbent on those attacking the validity of a statute to show its invalidity. Henderson v. Russell, 267 Ark. 140, 589 S.W. 2d 565 (1979); Pierce v. City of Hope, 127 Ark. 38, 191 S.W. 405 (1917).
Appellants urge us to hold that substantial compliance was not pleaded and is being raised for the first time on appeal. But we decline. Whether the pleadings implicitly raised the theory of substantial compliance need not be decided, as it was expressly argued below and, therefore, it cannot be said the issue was not first presented to the trial court. (Pages 76 and 112 of the record.)
For affirmance, appellants contend that the agreement between GEMS and the Washington County Quorum Court makes Ordinance No. 80-5 unconstitutional as it operates to lend the credit of the county to a non-profit corporation and the chancellor erred in refusing to consider that argument. We think the chancellor was entirely correct in holding that the issue before him was the validity of the ordinance, rather than the agreement, and we readily agree with him that the ordinance itself reveals no constitutional flaw; in fact, no serious argument is made on that score. Appellants argue that when the ordinance and the agreement are construed together the credit of the county is affected and that both were before the court. It is true the agreement was part of the written stipulation of the parties, but it is clear its intro ducdon was limited to show CEMS’ interest in the litigation and not in connection with the substantial issues of constitutionality. At a pretrial hearing counsel for appellants argued the agreement was not in issue (T. 163) and after intervention was ordered counsel for appellants and CEMS expressly stipulated that the precedent would prohibit “raising any issue based on the contract between CEMS and Washington County.” (T. 178.)
Appellants next contend that the chancellor erred in declaring the levy imposed by the ordinance to be a fee and not a tax. The chancellor relied on Holman v. City of Dierks, 217 Ark. 677, 233 S.W. 2d 392 (1950), where it was held that the imposition of an annual sanitation tax of $4.00 on each household and business to pay the cost of periodic spraying with insecticides was a charge for service and not a tax, citing Cooley on Taxation (3rd Ed.), p. 5. See also Housing Authority of Blytheville v. City of Blytheville, 228 Ark. 736, 310 S.W. 2d 222 (1958). We can see no material distinction between this case and Holman and we believe the Holman decision governs. The levy is imposed for a particular purpose, it is for a service, the funds are separately allocated to pay for that service, and householders similarly served by another provider are relieved of the levy. We believe the chancellor was correct.
We are also urged to reverse the chancellor for refusing to order a refund of the undisbursed fees collected under the ordinance and for refusing to allow testimony that the fees were paid under protest, but as we are upholding the validity of Ordinance No. 80-5 discussion of these points is needless. The chancellor’s award of an attorney’s fee pursuant to Ark. Stat. Ann. § 84-4601 (Repl. 1980) is reversed. Munson v. Abbott, 269 Ark. 441, 602 S.W. 2d 649 (1980).
Appellants’ request for an attorney’s fee and costs pursuant to Rule 9 (e) (1) and Rule 24 (d) is denied.
Affirmed on direct appeal, reversed on cross-appeal and remanded for the entry of an order not inconsistent with this opinion. | [
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Steele Hays, Justice.
This dispute arises from the September 24,1973, sale of a mobile home which the sellers, Vic and Thelma Langdon, were financing through a credit union. Facing transfer from the air base, the Langdons sought a buyer and negotiated an agreement with John and Etta Janssen to pay $200.00 down and $130.00 a month until they had paid the sum of $8,800.00. The Langdons contacted the credit union to ask the unpaid balance of their debt and were told $8,800.00. Unfortunately, this was only the amount necessary to pre-pay the debt in cash, but the Langdons mistakenly assumed it to be the entire balance of the indebtedness.
The Langdons say they asked D. B. Wright, a real estate and insurance broker, to prepare the contract and collect the payments, for which he received a fee of 10%. Wright admits handling the payments and retaining $880.00 as fee, but denies having any part in the drafting of the contract. Other witnesses say he did participate in the preparation of the contract and was present at the signing.
The contract reflected a total purchase price of $8,800.00 to be paid at $130.00 a month. It made no mention of interest or that the purchasers assumed the outstanding balance due the credit union. Thus, when Etta Janssen had paid a total of $8,800.00 she had fully performed under the contract and called on the Langdons for a clear title. It was then that the Langdons contacted the credit union and learned, apparently for the first time, that $4,290.00 was still due.
When her title was not forthcoming, Ms. Janssen sued for specific performance and the Langdons joined D. B. Wright as a third-party defendant, alleging that he had engaged in the unlawful practice of law and was negligent in the preparation of the contract. Wright denied these allegations and asked that the contract be reformed because of mutual mistake as to the purchase price.
The case was tried on July 1,1980, continued to July 25, and completed on September 8. The chancellor found that Etta Janssen had performed all obligations under the contract and was entitled to a clear title. He also found that D. B. Wright had prepared the contract negligently and had engaged in the unauthorized practice of law. He granted a judgment against him for $4,290.00, plus interest. On appeal, Wright argues that the chancellor erred in refusing to hold the Langdons’ claim against him was barred by limitations, in finding he was negligent in drafting the contract and in refusing to reform it. We affirm the chancellor.
I.
The appellant first argues the Langdons’ cause of action accrued in September of 1973 when the error oc curred, and hence the trial court should have held their claim was barred by the statute of limitations, Ark. Stat. Ann. § 37-206 (Repl. 1962). It is true the decree did contain a mistatement of law in concluding the Langdons’ cause of action did not commence until after the error was discovered in 1979, as the settled law of this State is that a cause of action arises when the negligent conduct occurs rather than when it is discovered. White v. Reagan, 32 Ark. 281 (1877); Adams v. Greer, 114 F. Supp. 770 (W.D. Ark. 1953). This rule has been soundly criticized but is still the law. 27 Ark. Law Rev. 472. But we regard this misstatement as merely gratuitous for the reason that the defense of limitations is an affirmative defense that must be pleaded and here it was not raised until the trial was nearly completed. A. R. Civ. P. Rule 8; Ashley v. Eisele, 247 Ark. 281, 445 S.W. 2d 76 (1969). These pleadings were joined in June 1979; the case was tried on July 1, 1980, and continued to July 25, 1980, for the deposition of appellant’s associate, a Mr. Taveau. On July 22 appellant attempted to amend his answer and assert the defenses of limitations and laches and the appellees promptly moved to strike the amendment. After satisfying himself that new defenses were not induced by the deposition or by the appellees, the chancellor granted the motion to strike and we find no error in that ruling. A. R. Civ. P. Rule 15 permits amendment to pleadings “at any time” and is expressly intended to liberalize the earlier rule requiring leave of court to amend the pleadings. Even so, no hard and fast rule can be defined and in the end the discretion of the trial judge must largely determine when it becomes improper and prejudicial to permit a new defense to be introduced late in the trial. White v. Cliff Peck Chev. Co. Inc., 266 Ark. 942, 587 S.W. 2d 606 (Ark. App. 1979);Pettigrew v. Pettigrew, 172 Ark. 647, 291 S.W. 90 (1927); Cole v. Branch & O’Neal, 171 Ark. 611, 285 S.W. 353 (1926). The pleadings had been joined for a year, the Langdons evidently were currently stationed a great distance away in Alaska, all of the parties had testified and the case was close to completion when appellant attempted to interpose new defenses. We think the chancellor’s discretion was not abused.
We are not overlooking the fact that appellant again moved on September 8 to permit the defenses of limitations and contributory negligence, and the chancellor indicated that while he believed his earlier ruling was correct he would reserve judgment until deciding the case. The record does not demonstrate that the chancellor intended to reverse his previous ruling, and we believe he was correct in the first instance. The fair inference is that if appellant had requested a ruling on the motion at the September 8 hearing it would have been denied. He cannot, on appeal, claim reversible error where the record is silent or uncertain. Rea v. Ruff, 265 Ark. 678, 580 S.W. 2d 471 (1979). Even if we could say otherwise, and that the misstatement was error affecting the result, chancery cases are tried de novo and even if the chancellor improperly applied the law, if he reached the right result we affirm. Davis v. Davis, 270 Ark. 180, 603 S.W. 2d 900 (Ark. App. 1980).
II.
In the court below and on appeal appellant insists the chancellor erred in finding that he prepared the contract, suggesting, instead, that it was his associate, Mr. Taveau, who prepared it. Appellant urges that we reverse the finding that he engaged in the practice of law and was guilty of negligence in failing to provide a clause requiring liquidation of the debt to the credit union. But the issue concerning preparation of the contract was disputed and there was testimony supporting either side. Certainly it could not be said that the findings were clearly erroneous. A.R.C.P. Rule 52. In fact, the evidence easily preponderates in favor of the chancellor’s findings. Appellant claimed he never saw the, contract until the litigation arose, never discussed it with anyone, did not sign it and was not present when it was signed. These denials are contradicted in one way or another by the combined testimony of the other parties, including Mr. Taveau, and are unconvincing, to say the least. Appellant admits he processed the monthly payments and benefitted by a sizable fee for his services. We have no difficulty upholding the finding the appellant either prepared or directed Mr. Taveau to prepare the contract and by so doing engaged in the unauthorized practice of law.
Of more concern is what standard of care should be applied to the conduct of one who improperly assumes the function of a lawyer. Appellant asserts that no Arkansas case law can be found on the point and we come to the same view. But reason urges that the standard should be no less than that required of a licensed attorney, and conceivably an even higher standard would be appropriate — strict liability, for example, to deter those who might be otherwise tempted to profess a competence they have no right to claim. There is authority for either proposition: in the early case of Miller v. Whelan, 42 N.E. 59 (1895), it was said that one who represents himself to be an attorney is accountable as though he were. Hecomovich v. Nielsen, 518 P. 2d 1081 (Ct. of App. of Wash. 1974), holds that a real estate broker who undertakes to practice law is liable for his negligence, the standard of care being that of a practicing attorney. In Mattieligh v. Poe, 356 P. 2d 328 (Wash. S. Ct., 1960), a broker engaged in the unauthorized practice of law was held liable for negligence in the preparation of a contract. Burien Motors Inc. v. Balch, 513 P. 2d 582 (Ct. of App. of Wash. 1973), holds the standard of care required of one who undertakes to function as a lawyer is the same as that required of lawyers. See also Latson v. Eaton, 341 P. 2d 247 (Okla. S. Ct. 1959). The same reasoning and standard have been applied in cases involving the unauthorized practice of medicine. State of Washington v. Maxfield, 285 P. 2d 887 (Wash. S. Ct. 1955); Kelly v. Carroll, 219 P. 2d 79 (Wash. S. Ct. 1950). In at least one state, absolute liability has been imposed:
Persons who without authority engage in acts that may be construed as such practice, should take warning from this case, for they are acting at their peril. Absolute liability is placed on the unauthorized practitioner for any mistake that may be incorporated in his work, for no matter how deeply concealed the defect may lie his failure to draw an instrument validly, to the injury of anyone, is negligence per se . . . . Biakanja v. Irving, 310 P. 2d 63 (Cal. App. 1957).
We need not settle the issue here, as the chancellor gave appellant the benefit of the lesser standard. The fact that appellant knew of the outstanding indebtedness to the credit union and failed to include an appropriate provision in the contract caused the Langdons’ loss and fully sustains the finding of negligence. See Hecomovich v. Nielsen, supra.
111.
Finally, at or near the close of the proof the appellant and the Langdons moved to reform the contract consistent with, a claimed intention of the parties that the Janssens would pay $130.00 per month until the indebtedness to the credit union was fully paid. Appellant asserts that the chancellor erred in refusing to so reform, citing Yeargan v. Bank of Montgomery County, 268 Ark. 752, 595 S.W. 2d 704 (Ark. App. 1980). But the difference between the case at bar and Yeargen is that the mistake there was mutual, whereas here there is no clear and convincing evidence that the parties intended a purchase price greater than the $8,800.00 recited in the agreement and, thus, the mistake was at best unilateral. Arnett & Arnett v. Lillard, 245 Ark. 939, 436 S.W. 2d 106 (1969); Hervey v. College of the Ozarks, 196 Ark. 481, 118 S.W. 2d 576 (1936); Fullerton v. Storthz, 182 Ark. 751, 33 S.W. 2d 714 (1930).
The decree is affirmed.
Purtle, J., dissents.
John Janssen had deceased when the litigation began. | [
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John I. Purtle, Justice.
The appellant was a nonprobationary teacher who was placed on probation pursuant to his contract for the 1979-80 school year. The appellee, Board of Education of the Hamburg Public School District, refused to renew appellant’s contract for the 1980-81 school year. The Ashley County Circuit Court affirmed the action of the Board. On appeal appellant urges three points for reversal: (1) that the court erred in finding none of the teacher’s federal constitutional rights were involved; (2) that the court erred in not reversing the Board’s action because they decided to terminate appellant before affording him a hearing; and, (3) that the court erred in failing to review the record of the Board’s action before making a decision.
In upholding the trial court we find no prejudicial error inasmuch as the Board complied with the provisions of Act 766 of 1979 and substantially complied with the provisions of its own policies adopted pursuant to Act 400 of 1975.
The facts in this case reveal that Thomas Chapman, appellant, had been employed by the appellee, Hamburg Public Schools, for eleven years prior to the nonrenewal of his contract in March 1980. The contract which he was given for the 1979-80 school year had a probation provision in it which stated:
.. . band performances and ratings must show marked improvement over past years or this will serve as grounds for non-renewal of contract.
As early as 1974 the school board had considered not renewing appellant’s contract. In fact, on March 19, 1974, the Board voted not to renew appellant’s contract for the year 1974-75. The appellant was notified by letter dated March 21,1974. However, the Board scheduled a hearing which was held on April 9,1974. At this hearing the Board reconsidered its prior decision and renewed the contract for 1974-75 on a probationary basis. At a special Board meeting on March 19, 1975, the Board voted to renew appellant’s contract for the year 1975-76 on the same probationary basis as the contract for 1974-75. The reasons given for this probation were conflicts with students and band parents and disciplinary procedures used. On March 16, 1976, the appellant was reprimanded for leaving students in the band hall unsupervised. At the Board meeting of March 20, 1979, the Board extended appellant’s contract from nine to ten months, without additional pay, and tacked on the provision earlier quoted about marked improvement being required. This 1979-80 contract was signed on May 7,1979, by the appellant with the probation and restrictions contained on the face of the contract. Appellant’s record also revealed an official reprimand from the superintendent for failure to attend a faculty workshop on March 15, 1979, which included a statement that he had a right to appear before the Board to challenge the reprimand and contract extension. The superintendent held a conference with the appellant at the beginning of the 1979-80 school year and made recommendations concerning discipline and band practice sessions. This conference was acknowledged by the appellant by his signature on the superintendent’s notes. The record also contained other comments about the band not doing a good job and the band hall not being in proper order. On March 18, 1980, the Board voted not to renew the appellant’s contract. This decision was apparently made in a routine manner much the same as the renewal or nonrenewal for all other teachers in the district were made. There does not appear to have been any hearing or discussion concerning the renewal of appellant’s contract on this date. The appellant received a letter following this meeting which stated that the Board’s decision not to renew his teaching contract was based upon a determination by the Board that he had failed to show the degree of marked improvement in the performance of his duties as had been expressed in the conditions of his probationary contract for the year to end on June 30, 1980. The letter also notified appellant that he could request a hearing before the Board. A hearing was requested and held on the nonrenewal of appellant’s contract at which time a considerable amount of evidence was presented both for and against the appellant. There was substantial evidence for either decision the Board wished to make.
The appellant’s first argument is that he had a right to procedural and substantive due process of law because he had a protected property interest in the expected renewal of his contract. Appellant admits that Act 74 of 1970, the predecessor to Act 766 of 1979, did not give rise to the expectation of continued employment which would create a property right. However, he insists that the new act does rise to this level. The pertinent part of Act 766 is codified as Ark. Stat. Ann. § 80-1264.9 (b) (Repl. 1980):
Any certified teacher who has been employed continuously by the school district [for] three (3) or more years may be terminated or the board may refuse to renew the contract of such teacher for any cause which is not arbitrary, capricious, or discriminatory, or for violating the reasonable rules and regulations promulgated by the school board. . . .
Additionally, the appellant insists that the Board voluntarily gave the appellant property rights when it adopted its policy No. III.C.4 as follows:
When the Board receives evidence which it considers sufficient to terminate a teacher either by dismissal or non-renewal of contract, it shall send to the teacher by certified mail with return receipt a notice of his proposed termination. The teacher may request that a statement of reasons be mailed to him; this request shall be in writing to the superintendent of schools. A statement of reasons will be mailed, after written request, in the same manner as the notice of proposed termination. The teacher will be advised in this second letter that upon request in writing to the president of the Board, with a copy to the superintendent within thirty (30) days of receipt of the Board notice, he will be accorded a hearing before official action is taken by the Board.
It is undisputed that at the Board meeting at which nonrenewal was voted, the appellee did not provide prior notice to appellant nor was evidence received other than the recommendation of the superintendent. Such procedure is obviously contemplated by the Board’s policy as set out above. However, instead of sending the notice of “proposed termination” the Board sent a notice of “nonrenewal.” The notice sent to the appellant followed the Board’s policy in all other respects including giving him notice that he was entitled to a hearing before the Board. There is no question but that the same rights of production of evidence and opportunity of examination and cross-examination were afforded appellant as were intended by both the Board policy and state law. If we were to uphold appellant’s contention, it would mean a duplication of the hearing process with its attendant requisites. It seems that there could be no complaint by the appellant in the present case (at least as to procedure) if the initial letter had stated that the Board proposed not to renew his contract rather than stating that they had voted not to renew it.
It is not disputed by appellant that the matter of renewal or nonrenewal of the appellant’s contract was within the discretion of the Board. This was subject, of course, to certain restrictions which are not involved in this case. In finding that the Board followed the terms of its policy with the exception of the unfortunate wording “voted not to renew” instead of “proposed not to renew,” we decide that the Board has substantially complied with its own policies. There was no argument that they did not follow the state statute as to procedure.
We have discussed appellant’s second point urged for reversal to some extent in our discussion on the first point. However, it should be mentioned again. We are not backing away from our decision in Maxwell v. Southside School District, 273 Ark. 89, 618 S.W. 2d 148 (1981). In Maxwell we determined that there was not substantial compliance with the Board’s own policy as it related to the renewal of a contract for either probationary or nonprobationary teachers. There was no question raised as to the circuit court’s jurisdiction in the case. One readily distinguishable feature between Maxwell and the present case is that there was obviously a hearing in the Maxwell case before the teacher was given an opportunity to appear. In the present case there was no hearing as such until after the teacher had been notified. We are able to determine from the record before us everything that was considered by the Board. In Maxwell we were unable to determine from the record all of the matters considered by the Board prior to voting not to renew Maxwell’s contract.
The present case is factually similar to McElroy v. Jasper School District, 273 Ark. 143, 617 S.W. 2d 356 (1981). McElroy was a probationary teacher. The Board voted not to renew her contract but gave her an opportunity to come before the Board and present any material she desired and to have representation of her own choosing. In all of these cases the school board furnished a court reporter and a transcript of the proceedings without cost to the teacher. After the hearing in McElroy the Board again voted to not renew her contract. Basically, the chief difference between McElroy and the present case is that the appellant here was a nonprobationary teacher even though he was on contractual probation for other reasons. He was nonprobationary in the sense that he had been employed for more than three consecutive years by the district. It is our opinion that the appellee actually intended its letter of March 18,1980, to be a notice of intent to not renew the contract. Viewing this instrument in this light there was little question that the Board followed all other procedures completely. A full-blown hearing was held prior to the time the appellant was officially notified that his contract would not be renewed.
Finally, the appellant argues that the court erred in failing to review the record prior to making its decision. We agree with the appellant that Act 766 gives a nonprobationary teacher the right to go into circuit court on appeal upon allegation that his contract was nonrenewed for prohibited reasons. Such appeal would clearly be reviewable by the circuit court. However, the record in the present case contained three pages of findings of facts and conclusions of law. The judgment clearly indicates the trial court reviewed the record of the Board’s hearing. In the judgment, the court stated it had jurisdiction of the parties and the subject matter. Therefore, there is no dispute but that this matter was reviewable on appeal through the circuit court. Neither can it be disputed that the matter was in fact considered by the court.
Since this determination not to renew the appellant’s contract was a matter within the discretion of the school board, the reviewing court could not substitute its opinion for that of the Board in the absence of an abuse of discretion by the Board. Safferstone v. Tucker, 235 Ark. 70, 357 S.W. 2d 3 (1962). In reviewing this case we do so pursuant to the clearly erroneous standard. In other words, if the trial court was not clearly erroneous, then we will affirm. Tedder v. Blackmon’s Auctions, Inc., 274 Ark. 241, 623 S.W. 2d 516 (1981).
Affirmed.
Hickman, J., concurs.
Adkisson, C.J., and Hays, J., dissent. | [
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George Rose Smith, Justice.
On May 26 of this year we affirmed Chisum’s conviction for manslaughter. Chisum v. State, 273 Ark. 1, 616 S.W. 2d 728 (1981). His petition for rehearing was denied on June 29. On October 23 he filed the present petition seeking the permission of this court under Criminal Procedure Rule 37.2 (a) to file in the trial court a motion for a new trial on the ground of newly discovered evidence. The petition must be denied, for two fundamental reasons.
First, our present Rule 37 is essentially the same as our earlier rule governing postconviction relief. That rule, adopted on October 18,1965, was called Criminal Procedure Rule No. 1. 239 Ark. 850a. It was not intended to provide within itself for a second trial. Rather, it created a method for determining whether the accused’s rights with respect to constitutional or statutory requirements had been violated “or whether the sentence [was] otherwise subject to collateral attack.” Thacker v. Urban, 246 Ark. 956, 440 S.W. 2d 553 (1969). There was no reason for this court to create machinery for a direct attack upon judgments in criminal cases, because that remedy had been adequately supplied by statute for a century or more. Consequently Criminal Procedure Rule No. 1 and its successor, our present Rule 37, provide a remedy when the sentence is vulnerable on constitutional grounds or is otherwise subject to collateral attack. Rule 37.1.
A motion asking the trial court to grant a new trial for newly discovered evidence is plainly a direct effort to have the judgment vacated, not a collateral attack. See Woods v. Quarles, 178 Ark. 1158, 13 S.W. 2d 617 (1929). We have already expressed our doubts, without having to decide, whether newly discovered evidence is a proper basis for relief under our postconviction rule. Gross v. State, 242 Ark. 142, 145, 412 S.W. 2d 279 (1967). We now declare that it is not.
Second, although, for the reasons stated, our permission is not required under Rule 37.2 (a) for the filing of a motion for a new trial for newly discovered evidence, the present motion could not have been granted even if it had been filed in the trial court rather than here. Its filing in October, 1981, after the trial and judgment in February, 1980, was far too late. Such motions have never been favored; consequently the time limitations have traditionally been short. The Criminal Code of 1869 required that a motion for a new trial in a criminal case for newly discovered evidence be filed within the same term of court as the entry of the judgment. Ark. Stat. Ann. §§ 43-2202 and 2203 (6) (Repl. 1977); Delaney v. State, 212 Ark. 622, 207 S.W. 2d 37 (1948). Our present criminal procedural rule and its predecessor statute both fix the time for filing a motion for a new trial as that allowed for the filing of a notice of appeal (ordinarily 30 days). Criminal Procedure Rule 36.22; Ark. Stat. Ann. § 43-2704. A motion filed 20 months after the judgment is obviously too late.
Furthermore, the motion must show the exercise of diligence, including an explanation of why the evidence was not discovered earlier. Gross v. State, supra. The supporting documents for the present motion consist of statements by private investigators, but apparently the investigators were not employed until after we had denied the petition for rehearing. For the most part the ‘‘newly discovered” witnesses and facts were already known to Chisum and his attorneys before the trial that resulted in his conviction. There being in effect a total want of any showing of diligence immediately after the trial in February, 1980, the motion could not in any event have been granted.
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Robert H. Dudley, Justice.
This appeal is from a conviction of promoting obscene material. Ark. Stat. Ann. § 41-3503 (Repl. 1977). Appellant Century Theaters operates an establishment in Little Rock euphemistically labeled “adult” entertainment. As a part of the fare “peepshows” or short films are exhibited in a series of one-person booths. The films, of seven to ten minutes’ duration, are on a continuous reel. To view one of them the customer places a quarter in a coin slot and begins watching from wherever it happens to start, which probably is not at the beginning. On some occasions titles give the name of the film while on other occasions they will be labeled “Two men/one woman” or “One man/one woman” and at other times they have no titles.
On April 16, 1980, Detectives Howell and McGuire, members of the vice squad, went to the Century Theater to view films. They saw a number of films and thought that four were obscene. Both detectives looked at the film in booth 3 while McGuire alone viewed the films in booths 5,9 and 10. They returned on the morning of April 18 but only McGuire saw all four films. They then went before a circuit judge to obtain a search warrant. Detective McGuire, after describing the building and its location, testified that about one hour earlier, the film in booth 3 showed a female performing oral sex upon a male and penetration was shown. He testified that the film showing in booth 5 reflected two females performing oral sex, each upon the other, with actual penetration being shown. His testimony was that the film in booth 9 showed four male homosexuals engaged in sexual activity, all at the same time, with actual penetration. He testified that the film in booth 10 showed two females and one male involved in oral sex acts with actual penetration. Detective Howell testified that he saw the film in booth 3 and it showed a male and female engage first in sexual intercourse and then in oral sex with penetration being shown on both occasions. The search warrant was then issued to authorize the search of booths 3, 5,9 and 10 of the described building to seize “motion picture films depicting hardcord sexual contact including actual penetration.” The last sentence provided “The executing officers must seize only films which they have previously viewed and described in their recorded testimony.”
After obtaining the warrant the two detectives returned to appellant’s building, identified themselves to an employee, and gave him a copy of the warrant. The three of them went to the booths where the employee removed the films and handed them to the detectives. Later, they again viewed them and placed them in storage. By the time of trial Detective McGuire was deceased and Detective Howell could testify only about the one film he had seen.
The appellant questions whether (1) the testimony of probable cause was adequate, (2) the warrant was properly executed, (3) the warrant allowed seizure of protected materials and (4) a juror should have been excused for cause.
The first issue is whether probable cause was adequately shown for the issuance of the warrant. Rule 13.1 of the Arkansas Rules of Criminal Procedure Vol. 4A (Repl. 1977) sets out the requirements for the issuance of a search warrant. Section (b) is relevant to the point at issue —
The application for a search warrant shall describe with particularity the persons or places to be searched and the persons or things to be seized, and shall be supported by one (1) or more affidavits or recorded testimony under oath before a judicial officer particu larly setting forth the facts and circumstances tending to show that such persons or things are in the places, or the things are in possession of the person to be searched
The constitutional issue is how the Fourth Amendment should be construed and applied when the search and seizure involves materials which are presumptively under the protection of the First Amendment. The Supreme Court of the United States in Zurcher v. Stanford Daily, 436 U.S. 547 at 564 (1978) sets out the rationale and the ruling as follows:
It is true that the struggle from which the Fourth Amendment emerged “is largely a history of conflict between the Crown and the press,” Stanford v. Texas, 379 U.S. 476, 482 (1965), and that in issuing warrants and determining the reasonableness of a search, state and federal magistrates should be aware that “unrestricted power of search and seizure could also be an instrument for stifling liberty of expression.” Marcus v. Search Warrant, 367 U.S. 717, 729 (1961). Where the materials sought to be seized may be protected by the First Amendment, the requirements of the Fourth Amendment must be applied with “scrupulous exactitude.” Standord v. Texas, supra, at 485. “A seizure reasonable as to one type of material in one setting may be unreasonable in a different setting or with respect to another kind of material.” Roaden v. Kentucky, 413 U.S. 496, 501 (1973). Hence, in Stanford v. Texas, the Court invalidated a warrant authorizing the search of a private home for all books, records, and other materials relating to the Communist Party, on the ground that whether or not the warrant would have been sufficient in other contexts, it authorized the searchers to rummage among and make judgments about books and papers and was the functional equivalent of a general warrant, one of the principal targets of the Fourth Amendment. Where presumptively protected materials are sought to be seized, the warrant requirement should be administered to leave as little as possible to the discretion or whim of the officer in the field. Similarly, where seizure is sought of allegedly obscene materials, the judgment of the arresting officer alone is insufficient to justify issuance of a search warrant or a seizure without a warrant incident to arrest. The procedure for determining probable cause must afford an opportunity for the judicial officer to “focus search - ingly on the question of obscenity.” Marcus v. Search Warrant, supra, at 732; A Quantity of Books v. Kansas, 378 U.S. 205, 210 (1964); Lee Art Theatre, Inc. v. Virginia, 392 U.S. 636, 637 (1968); Roaden v. Kentucky, supra, at 502; Heller v. New York, 413 U.S. 483, 489 (1973).
Hence, at the time the warrant was requested the judge had to “focus searchingly” on the question of whether there was probable cause to believe that a violation of the obscenity laws had occurred. However, a showing of “probable cause requires much less evidence than a finding of guilt requires . . . ” United States v. Beck, 431 F. 2d 536 at 538 (5th Cir. 1970). “In dealing with probable cause ... as the very name implies, we deal with probabilities.” Brinegar v. United States, 338 U.S. 160 at 175 (1949).
In Miller v. California, 413 U.S. 15 (1973), the Supreme Court reaffirmed the principle established in Roth v. United States, 354 U.S. 476 (1957) that the First Amendment does not protect obscene material and announced “basic guidelines for the trier of fact” on the issue of obscenity. The court also gave guidance to the states for statutory regulation of obscene materials. Our General Assembly relied on that language when enacting a part of Ark. Stat. Ann. § 41-3502 (Repl. 1977).
(6) “Obscene material” means that material which:
(a) Depicts or describes in a patently offensive manner nudity, sadomasochistic abuse, sexual excitement, sexual conduct, or hard-core sexual conduct;
(b) Taken as a whole, appeals to the prurient interest of the average person, applying contemporary statewide standards; and
(c) Taken as a whole, lacks serious literary, artistic, political, or scientific value.
(3) “Hard-core sexual conduct” means patently offensive acts, exhibitions, representations, depictions, or descriptions of:
(a) Intrusions, however slight, actual or simulated, by any object, any part of an animal’s body, or any part of a person’s body into the genital or anal openings of any person’s body; or
(b) Cunnilingus, fellatio, anilingus, bestiality, lewd exhibition of genitals, or excretory functions, actual or simulated.
The testimony of Detectives McGuire and Howell in relation to the search warrant meets the statutory test of “hard-core sexual conduct” as a depiction of “intrusions... by any part of a person’s body into the genital... openings of any person’s body,” and specifically includes “cunnilingus” and “fellatio.” We affirm the holding of the trial court that their testimony was sufficient to meet the statutory definition of “hard-core sexual conduct.”
In addition, in order to meet the complete test of “obscene material” the judge was obligated to make a preliminary determination, pursuant to § 41-3502 (6) (b) and (c), that the films of hardcore sexual conduct “taken as a whole” appealed to the prurient interest of the average person, applying contemporary statewide standards, and that they lacked serious literary, artistic, political, or scientific value.
The judge was entitled to use his common sense. He knew that the place to be searched was a theater and that movies were being shown to patrons in individual booths. Ordinary intelligence would dictate this was one method of showing hardcore pornographic movies. He knew, from the description of the films, and as a member of the community that by statewide standards the films would appeal to the prurient interests of the average person. The testimony describing the films created a probability that no literary, artistic, political or scientific values were shown. We affirm the holding of the trial court in denying the motion to suppress. The judge who issued the warrant decided for himself the persuasiveness of the facts to show probable cause that obscenity laws were being violated.
Appellant next contends that the search warrant should be suppressed for the detectives’ failure to adhere to the terms of the warrant which provided that “The officers executing the warrant must seize only films which they have previously viewed and described in their recorded testimony.” This sentence is synonymous with the rest of the warrant which authorized the officers to seize only the films in booths 3, 5, 9 and 10. The testimony is uncontradicted that the films were taken only from these four booths and there is no failure to adhere to the terms of the warrant during the search.
Appellant argues that the films from booths 5, 9 and 10 were erroneously admitted into evidence because a proper foundation was not laid. It contends that only Detective McGuire viewed these films before seizure and therefore he was the only person who could have laid a proper foundation. We affirm the trial court’s holding that the facts, taken as a whole, satisfy the conditions precedent to admissibility pursuant to Rule 901, Ark. Unif. Rules of Evid., Ark. Stat. Ann. § 28-1001 (Repl. 1979).
Detective Howell testified that McGuire viewed these three films on the 16th and again on the 18th. He testified without objection at the suppression hearing that McGuire told him the pictures he saw on the 18th were the same ones he had seen on the 16th. The testimony of now deceased McGuire to secure the search warrant was given about one hour after viewing the films. That testimony describes the differing hardcore pornographic acts depicted in each of the films and it gives the number of the booth in which each film was being shown. The seizure and the final viewing were described by Detective Howell as follows:
Q. Would you tell the Court what you did then.
A. We entered the theater and the man working the desk, we advised him — identified ourselves as to who we were, gave him a copy of the search and seizure warrant we obtained that morning and told him specifically which films we wanted. We went with him to the booths. He went in the booths and took the film out and gave them to us.
Q. You did not view the film before you took possession of it?
A. Not at that time, no, sir.
Q. And did you view them later?
A. Yes, sir, we did.
Q. And how much later?
A. I don’t recall whether it was the same day or the next day. They were stored — The films were stored in the Little Rock Property Office.
The appellant admitted that the films shown in evidence were the ones seized. We affirm the trial court in ruling that there was sufficient evidence to support the claim that the films are the ones described in the search warrant.
Appellant contends that the phrase “hard-core sexual contact” found in the warrant rather than the statutory “hard-core sexual conduct” made the warrant general and thus authorized the seizure of protected materials. The rationale of this argument is that the words “sexual conduct” in an earlier statute were declared to be over-broad in Wild Cinemas of Little Rock, Inc. v. Bentley, 499 F. Supp. 655 (E. D. Ark. 1980) and by comparison, this warrant should be declared void. We reject that contention because the term in the search warrant also contained the following qualifying language: “ . . . including actual penetration.” This qualifying language coupled with the term used make clear that the warrant was not a general warrant which included constitutionally protected materials.
The final point for reversal urged by appellant is that the trial court erred in not granting its motion to challenge for cause a prospective juror. However, the record does not reflect that appellant exercised any peremptory challenges or that it was forced to accept a juror against its wishes. We find no reversible error when the record fails to disclose that an undesirable juror was forced upon an objecting party. Conley v. State, 270 Ark. 886, 607 S.W. 2d 328 (1980).
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Frank Holt, Justice.
A jury found appellant guilty of first degree murder and assessed his punishment at life imprisonment. Appellant first asserts that the trial court erred in denying his motion for a three weeks continuance for failure of the state to provide discovery, citing Ark. Rules of Crim. Proc., Rules 17 and 19.
In July, 1980, present counsel, upon being employed as appellant’s substitute counsel, filed a written motion for discovery asking the court to require the prosecuting attorney to disclose and produce information and material as required by Rule 17.1. Rule 17.1 (a)(v), subject to Rule 19.4, states that the prosecutor shall disclose to defense counsel “any books, papers, documents, photographs or tangible objects which the prosecuting attorney intends to use in any hearing or at trial or which were obtained from or belong to the defendant.” Appellant argues that the prosecuting attorney failed to meet his obligations with respect to discovery and disclosure, which resulted in appellant being unable to examine certain objects seized at the scene of the crime and sent to the state crime lab for testing. The record indicates that the tests on these objects about which he complains were never made. Appellant’s counsel asserts that until October, 1980, he had made numerous trips to the prosecutor’s office in unsuccessful efforts to review his file. However, it appears undisputed that as of October, 1980, or about three months before trial, the deputy, who was then assigned to try the case, was cooperative and thereafter made the file available. Also, the state, in a written response to appellant’s motion for continuance the day before trial, stated that appellant had been supplied with the file which included the autopsy report, a table of contents of the complete police file, a list of witnesses along with typewritten copies of their statements and information given by witnesses, including police officers, a complete list of the items of evidence and the chain of custody, a copy of the rights form and confession, copies of diagrams of the crime scene, a copy of the state hospital mental examination, and a copy of the state crime lab report, which contained results of the only tests made. The state further responded that the appellant’s counsel was aware that he could have inspected the physical evidence at any time after he was retained in July, 1980, up until the trial date in January, 1981. As indicated, his present motion for a three weeks continuance was made the day before trial. The case had been continued twice on appellant’s motions, once after present counsel was retained.
It is true that the prosecuting attorney’s obligations of disclosure under Rule 17.1, subject to Rule 19.4, extend to material and information within the possession and control of members of his staff or others who have participated in the investigation or evaluation of the case and regularly report or have reported to the prosecutor. See Commentary to Rule 17.1; Dupree v. State, 271 Ark. 50, 607 S.W. 2d 356 (1980); and Lacy v. State, 272 Ark. 333, 614 S.W. 2d 235 (1981). Appellant speculates here, however, that if tests had been made on various tangible items, they might be exculpatory in nature. While this might be true, appellant has cited no authority imposing a duty on the state to make tests on all materials seized. A defendant in a criminal case cannot rely upon discovery as a total substitute for his own investigation. Dupree v. State, supra. Here it appears the prosecutor made a sufficient disclosure to the appellant.
Rule 27.3 authorizes the court to grant a continuance on a showing of good cause, taking into consideration the request or consent of counsel and the public interest. It is well settled that the trial court has wide discretion in granting a continuance, and its judgment will not be reversed absent a clear abuse of discretion. French v. State, 271 Ark. 455, 609 S.W. 2d 42 (1980); Figeroa v. State, 244 Ark. 457, 425 S.W. 2d 576 (1968). Here, we find no abuse of discretion.
Appellant next asserts that the court abused its discretion in permitting certain photographs and items of clothing, which he does not specify, into evidence over appellant’s objection. His only argument on this point is that there was a failure by the state to provide discovery. It appears the photographs were in the police file, which was available to appellant. Also, at trial appellant’s counsel agreed that he had seen the photographs, although briefly. As previously discussed, the state represented to the court, without contradiction, that the appellant’s counsel could have inspected the physical evidence any time he desired. Appellant has not demonstrated any abuse of discretion by the trial court.
Neither can we agree that the trial court erred in denying his motion to suppress his confession on the grounds that he had not been properly advised of his right to counsel. After conducting a Denno hearing, the trial court ruled the confession admissible. Appellant correctly contends there is a presumption that a custodial confession is involuntary, and the prosecutor bears a heavy burden to show such a statement was voluntarily, freely, and understanding^ given. Tatum v. State, 266 Ark. 506, 585 S.W. 2d 957 (1979).
Here the state introduced a copy of the Miranda warning signed by appellant. In pertinent part the warning states: “I have the right... to talk with an attorney, either retained by me or appointed by the court.. . before giving a statement.” Appellant contends only that this quoted language is insufficient to inform him of his right to have an attorney “free of charge” if he cannot afford one, citing Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). In Hays v. State, 269 Ark. 47, 598 S.W. 2d 91 (1980), we found that a written statement identical to the one used here and signed by appellant comports with the requirements of Miranda. However, the specific deficiency asserted here was not in issue there. In Tasby v. U.S., 451 F. 2d 394 (8th Cir. 1971), the appellant contended that the Miranda warning was inadequate because it provided that an attorney would be appointed “at the proper time.” The court said: “This statement, even though a slight deviation from the Miranda prescription, does not negate the over-all effectiveness of the warning.” On appeal, in ascertaining the voluntariness of a confession, we make an independent determination based upon the totality of the circumstances, resolving all doubts in favor of individual rights and constitutional safeguards, and, after doing so, we affirm the trial court’s finding unless clearly against the preponderance of the evidence. Degler v. State, 257 Ark. 388, 517 S.W. 2d 515 (1974); and Giles v. State, 261 Ark. 413, 549 S.W. 2d 479 (1977).
Here, the appellant was approximately 36 years of age with a twelfth grade education. He was taken into custody as a suspect about 8:30 a.m., advised of his Miranda rights and signed a waiver. Two hours later, following further investigation, he was questioned after his constitutional rights were reiterated to him. There is no evidence that he was incapacitated or overreached in any manner. In fact, the voluntariness of the confession is not questioned other than the asserted deficiency. Although it would be a better practice to acquaint a defendant that counsel would be appointed by the court without cost to him, here, when we examine the totality of the circumstances surrounding the waiver and the confession, the lack of the words “free of charge,” or similar words, does not appear to negate the overall effectiveness of the twice given warning or the voluntariness of the confession. Therefore, we cannot say the trial court’s finding that the confession was voluntary is clearly against the preponderance of the evidence.
Appellant’s final contention for reversal is that the evidence is insufficient and, therefore, the court erred in denying his motion for a directed verdict. A directed verdict is proper only when no fact issue exists and on appeal we review the evidence in the light most favorable to appellee and affirm if there is any substantial evidence to support the verdict. Harris v. State, 262 Ark. 680, 561 S.W. 2d 69 (1978). According to appellant’s confession, which was admissible, he was living with the decedent. When he returned home from work the evening of the alleged murder, he observed a “dude” leaving the house. He got mad and started hitting the victim with his fists. They fought for “almost an hour or so.” “She finally stopped moving ...” When he “saw she was dead, I covered her with a curtain.” He spent the night in a car next door. When taken into custody the next morning, he was outside the house at the scene of the crime. The doctor, who conducted the autopsy, testified that the victim’s death was caused by multiple wounds to the head associated with strangulation. She, also, suffered burns (apparently from a heater) and other wounds about her body. The state adduced evidence which corroborated appellant’s admission that he was at his residence that evening. There appeared to be blood on his clothing and, also, blood underneath his fingernails. It does not appear the victim was armed in any manner.
A confession will warrant a conviction when accompanied by other proof that the alleged offense was committed. Ark. Stat. Ann. § 43-2115 (Repl. 1977); Mosley v. State, 246 Ark. 358, 438 S.W. 2d 311 (1969); and Paschal v. State, 243 Ark. 329, 420 S.W. 2d 73 (1967). Here, when we consider the evidence most favorable to the appellee, as we must do on appeal, we are of the view there is ample substantial evidence to support the verdict.
Pursuant to the requirements of Ark. Stat. Ann. § 43-2725 (Repl. 1977), Rule 36.24 of the Rules of Criminal Procedure, and Rule 11 (f) of the Rules of the Supreme Court, we have reviewed the record and all objections and find no prejudicial error.
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ENGLISH, C. J.
On the 11th of February, 1881, Edwin P. Snipes brought this action of replevin in the Circuit Court of Jefferson county against James R. Pludson, for possession’ of mules, cotton, corn and cotton seed.
Plaintiff claimed title to the property under a mortgage executed to him by defendant 20th of February, 1880, to secure a note of that date for $3,000.00, payable 1st November following, bearing ten per cent, interest, with power, on default, &c., to take possession of the property, and sell it to pay the debt, &c.
The defendant answered in three paragraphs, to each and all of which plaintiff demurred; the Court sustained the demurrer; defendant declined to answer oyer; the parties agreed on the value of the property, and there was final judgment for plaintiff, and defendant excepted and appealed.
I. The first paragraph of the answer alleged, in substance, that the defendant had paid to the plaintiff, before suit, the sum of $2,000.00 on the debt secured by the mortgage under which plaintiff claimed title to. the property sued for.
This is not a bill in Chancery to ascertain the mortgage debt, and for decree of foreclosure, but an action of replevin by the mortgagee against the mortgagor for possession of the mortgaged property. After forfeiture, the mortgagee may bring replevin for the goods mortgaged, provided any portion of the indebtedness secured by the mortgage is still due and owing to him; and it is no defence to the action to show that a portion of the indebtedness has been paid before suit, but proof that the entire debt has been discharged is a good defence. Jones on Chattel Mortgages, Sec. 706; Marks v. McGhee, 35 Ark., 218.
II. The second paragraph of the answer alleged, in snbstance, that before suit, plaintiff was indebted to defendant for board and other things in the sum of $190.00, which is pleaded as a set-off to so much of the mortgage debt.
Whether on a bill in Chancery by the mortgagee to foreclose, or by the mortgagor to redeem, a set-off may be allowed against the mortgage debt, need not be considered in this case (see Nolley v. Rogers, 22 Ark., 230), which is an action of replevin for the property embraced in the mortgage, brought after default and forfeiture, and in which a set-off is not a proper defence. Gantt’s Digest, sec. 4572 ; Waterman on Set-off, sec. 144; Fairman v. Fluck, 5 Watts 516; McMahan v. Tyson, 23 Ga., 43; Nutwell v. Tongue’s Lessee, 22 Maryland, 419.
III. In the third paragraph of the answer defendant tempted to set up a counter-claim for two thousand dollars damages.
,The substance of this defence was that the mortgage debt was for money advanced by plaintiff to defendant to enable him to purchase mules, and pay for' labor to cultivate and gather crops of cotton and corn, on a plantation rented by him of plaintiff for 1880; and that during the growing and gathering seasons, plaintiff had maliciously inter-meddled with the hands of defendant on the plantation, and induced them to demand an increase of wages, &c., &e., whereby he had been damaged in the sum of $2,000.00 which with the part payment and set-off pleaded in the first and second paragraph ©f the answer, was alleged to be a full satisfaction of the mortgage, &c.
A counter-claim under the code is like recoupment at common law, and must be a cause of action in favor of defendant against plaintiff, Arising out of the contract or transaction set forth -in the complaint, as the foundation of plaintiff’s claim, or connected with the subject of the action. Gantt’s Digest, sea. 4570; Bloom v. Lehman et al, 27 Ark., 490.
The matter set up in the third paragraph of the answer, shows a distinct cause of action in favor of defendant against plaintiff for a malicious trespass, but not a counter-claim under the code.
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STATEMENT.
Ealdn, J.
Mrs. Gillespie, at the time of the transactions complained of, AAas a young Avoman, recently come of age, living in the family of her brother, the appellee, Avhom she regarded as her protector, although he had never been her guardian. She had been considered a member of the family, had assisted in the domestic Avork, and had been sent to school and maintained by her brother in a manner suitable to their position in society.
No charges had been made on either hand. She Avas the OAvner of an eighty acre tract of land, which, it seems, had several years before been given to her by her brother.
In December, 1879, being then in contemplation of marriage, and her brother having become insolvent, she, at his request, and in consideration of his circumstances, executed to him a lease of said land for five years. No rent was reserved at all for the first three; and for the last two, only $100 per annum, which seems not to have been half the annual value. He agreed, however, on his part, “to put, and keep, the fences around said land in good repair; to keep the houses thereon in like good condition ; and to cultivate the tillable land in a good farmer-like manner.” She afterwards intermarried with Gillespie, and on the 5th of July, 1880, filed this bill to cancel the lease, upon the ground of undue influence. Save as to all that touches the undue influence, the material facts are admitted. The defen-e rests upon the ground that she acted intelligently and voluntarily; that she intended a benefit to her brother, with a full understanding of all the circumstances; and it is iutimated that she would not have complained but for her husband As for him, he knew of the lease before the marriage, and there is no charge that the matter was in fraud of marital rights.
The Chancellor upon the hearing, dismissed the bill for want of equity, and an appeal was prayed.
Pending the appeal, on the 5th of November, 1881, a receiver was appointed, by this Court, to rent the lands and collect the rents then due. He reported on the 22d Dec., 1882, that he had been unable to find a suitable tenant for that year, but had rented a ¡¡art of the land for $60, which he had collected. Out of this he was ordered to pay the taxes for ’81 and ’82, and has made no final report.
OPINION.
Ever since the leading case of Huguenin v. Bosely, 14 Vesey 273, (see "W. &. T.’s Leading Cases in Eq., Vol. II, Mar. p. 556) it has been the well established doctrine'in equity, that contracts, and most especially gifts, will be scrutinized -with the most jealous care, when made between parties who occupy such a confidential relation' as to make it the duty of the person benefitted by the contract or bounty to guard and protect the interests of the other and to give such advice as would promote those interests. And this is not confined to cases where there is a legal controul, such as that which parents and guardians have over minors, or husbands over Avives. Courts of Equity, with a broader view of human passions, emotion--, and frailties, recognize the influences as passing beyond the fixed limits of majority, and as independent of legal incapacities. They are supposed to arise Avherever there is a relation of dependence or confidence ; especially that most unquestioning of all confidences which springs from affection on one side, and a trust in a reciprocal affection on the other. The cases for the application of the doctrine cannot be scheduled. They pervade all social and domestic life. The application may sometimes be harsh, and one might well wish that an exception could be made, but there is a higher policy Avhich demands that it should be universal. The language of Lord Kingsdownein Smith v. Kay, 7 H. of Lords Cases 750, has been considered striking. He says that relief in equity will always be afforded against transactions in which “influence has been acquired and abused, in which confidence has been reposed and betrayed.”
The leading case of BLuguenin v. Bozely (supra) is one in which a woman in contemplation of her OAvn marriage, made a voluntary settlement, by way of bounty, upon a clergyman and his family, under whose influence and advice she had been acting in the management of her affairs. The settlement was cancelled, upon the ground of the relations of confidence between the parties — the woman’s implicit trust in the honour, integrity and fidelity of the clergyman, and not upon the formal ground of agency. In that case, too, the lady was perfectly aware of all she was doing and its consequences. She meant it all. The Court proceeded upon the ground that it was an injudicious conveyance of a large amount of property, tor which no adequate services had been rendered, prompted by an extravagant gratitude for him and sympathy with his family, which the clergyman should have advised her against indulging for his benefit. Sir S. Romilly, arguing the case, made the celebrated remark, reported in italics in the Leading Cases, that “the relief stands upon a general principle applying to all the variety of relations in which domination may be exercised by one person over another.”
Although the cases do not go to the extent of rendering void all gifts or bounties towards those having this influence, they do fully reach the position, that they will be avoided in all cases where they are of such a nature, as a judicious friend regarding the interests of the donor or obligor, would not have advised — for it is the duty of the one having tbe confidence to give precisely that advice, and decline the benefit. This principle has been heretofore applied by this Court in the case of relations dealing with ancestral property, and that is only one of its many-sided phases. Million and wife v. Taylor, 38 Ark. 428.
It appears in this case that the young woman was on the eve of marrying, and there is enough to justify the inference that she had little or no other property. Her brother stood to her in loco parentis and was her only-proper adviser and protector. He had been evidently very kind and affectionate, and had given her the very property in question. She sympathized with him in his condition of insolvency, with a family to support. The lease on her part was a natural and generous act. But it was made without the advise or consent of her intended husband; and from the relations existing between him and her brother it liras likely to be distasteful to the former.
We cannot think, under the circumstances, he ought to have advised her to make such a lease to another, .or to have accepted it himself. It deprived her and her intended husband of the use of it for five years, without any adequate compensation. It might be the germ of a discord, which his affection to his sister would, perhaps, on reflection', have prompted him to avert, at some sacrifice to himself, of a promised advantage.
.The lease should have been cancelled, without accountability, however, for rents and profits before the property passed into the Receiver’s hands, or compensation for fencing or repairs.
Reverse the decree and render a decree here, cancel-ling the lease and ordering a delivery of the property by the Receiver to complainants, Gillespie and wife. They will also be entitled to the nett balance of all moneys which have copie to his hands together with outstanding notes or obligations for rent, if any. To this end the Receiver must render a final account here, till the coming in of which, all other matters are reserved. | [
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OPINION.
Eakin, J.
The acceptance by the administrator raised a personal obligation according to its terms. Such a conditional acceptance did not make the instrument paper, but it was nevertheless assignable under the statutes. It was, in effect, as if the acceptor by an original instrument had promised to pay the drawerCMthe sum mentioned out of certain rents when they should come into his hands. Such an instrument would have been assignable — vesting right of action in the assignee, even before the civil code, certainly after.—Owen v. Lavine, 14 Ark., 389.
And it created a personal obligation only. Perry, as administrator, “eim testamento,” of Dawson’s estate had no right to bind it by any note or written obligation. If such are executed, as they may be for convenience, they still remain the personal obligations of the representative. The Probate Court may, in all proper cases, allow them as expenses of administration, not as classified claims against the estate.—Yarborough v. Ward, 34 Ark., 204.
It was not then a case of election. The plaintiffs could not treat it as a claim against the estate in any view. It seems that the drawer had formerly been the representative of the estate, and had claims against it which were subsequently allowed for expenses of administration; and that this instrument was drawn by him upon defendant as administrator de bonis non oum testamento annexo for a portion of the amount. The plaintiffs had petitioned the Probate Court for an order that the amount, so allowed, should be paid to them; and the Probate Court had recognized them as entitled to it; and made upon the defendant as administrator, de ‘bonis, &o., a general order for payment of expenses of administration, and allowances in their order. At least this would appear if we could, without a bill of exceptions incorporating it, look into the exhibit attached to the answer. But if this were all true, it is obvious that it would not relieve defendant of a personal obligation to do the very thing ordered to be done, until he had done it. If money sufficient came into his hands from rents, an obligation binding him in person was created. This would have been absolved by payment or lease. Certainly not by an order of the Probate Court upon him to do the same thing in the course of his duty; if there had been such order. ’
The defect in the complaint is, that it seems to treat the l acceptance as positive; and in that view the plea of the statute of limitation would be good. But in .truth, as appears from the face of it, the acceptance was conditional and no right to sue upon it accrued before the rents came in hand. The complaint does not definitely show that any did; or that there ever was cause of action; but does show that defendant prolnised to pay “as early as the rents of the estate of W. H. Dawson,' deceased, would permit;” and alleges that defendant has not paid said sum of money, “although said period has long since' elapsed.” There was no demurrer to this complaint, nor motion to make it more definite. The bill of exceptions does not set forth the evidence, and we must presume that enough was shown to satisfy the jury that the conditions of defendant’s liability in this regard had attached.
The bill of exceptions sets forth no evidence, and we can ip . •iiii. notice no grounds for a motion for a new trial, the deter- ° mination of which might depend on evidence. The instructions given and refused, although perhaps not in all respects literally correct, fairly presented the law as above declared, and we think there is no material error for which there should be a reversal.
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Smith, J.
The defendant was charged by indictment with the murder of George E. Barnes; was convicted of murder in the first degree, and was condemned to be hanged. In his motion for a new trial, he complained of twenty-three errors which had occured at the trial to his prejudice. .Some of i hese exceptions are destitute of plausibility and have not been pressed in argument here.
I. Two of the assignments relate to the competency of • T 11 11 1 - -1-n .-r juror. It was alleged that before the trial hrancis J & had formed and expressed an opinion of the prisoner’s guilt. 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.
There is nothing in the record that we have discovered outside the motion for a new trial, to show that Lange, when he was placed upon the stand to be accepted or challenged by the parties, was asked whether he had any opinion about Casat’s guilt or innocence, nor upon what such opinion was founded. On the contrary there is a shade of evidence that he was not interrogated on this subject. Hence under the rule established in Meyer v. The State, 19 Ark., 156, and Collier v. The State, 20 Id. 50, we might properly decline to notice the point. But the Court below entered upon an investigation of the matter and received affidavits, counter-affidavits and oral testimony. The conclusion to which it came was, that Lange labored under no actual bias and that the impeaching witneses were unworthy of credit. "With that conclusion we are entirely satisfied. The Circuit Court could see what manner of people they were that testified and was in a better situation to judge whether there was any foundation for the objection than we are, who have only the record.
II. Four of the assignments relate to the reception of testimony.
Oakes, a fireman in the employment of the same railway company, in whose service Casat had formerly been, was permitted to testify that he had met Casat at Texarkana, about one month before the homicide occurred, after Casat had quit work for the Company, and when he was on his way to Texas; that Casat told him he had quit because his father had been discharged from the Company’s service; that he had a good deal to say about Richardson, the master mechanic of the company, whose chief clerk the deceased was, and amongst other things remarked that he had told Richardson if ever Richardson put a black mark against him, he would- come back and get even with him. This witness further deposed that he was one of the party who arrested Casat after the shooting of Barnes, and turned him over to an officer; that as he was marched off to jail; they met some boys with a gun, when Casat remarked that he had his bird, and the only thing he regretted was that he had not got the other damned son of a bitch.
Riddle testified that he saw Casat at Marshall, Texas, some ten days before Barnes was shot, when he spoke of his father’s discharge; that Casat had been at work in the machine shops of a railroad company there, but told him he had quit that day and was goinggNack to Little Rock that night and beat the head off of Richardson, and that Barnes was as mean a man as Richardson.
Barney Tighe swore that he was present at the killing bf Barnes, and that as Casat walked past him, after the deed was done, he remarked there was one more man to die '
The objection to the testimony of this last witness was, that it was allowed in rebuttal, where it should have been offered in chief.
In the order of the production of evidence, the Circuit Courts are invested with a large discretion-.
We shall not find fault with them in this respect, so long as they admit none but legal evidence and exclude only that which is incompetent.
The grounds of objection to the admission of the declara-^ tions made by Casat in the presence of Oakes and of Riddle were that they were irrelevant, impertinent and ''too remote in point of time to be connected with the subsequent killing. Such of these declarations as were made prior to the commission of the alleged offence, were in the nature of threats, and were admissible in proof of malice. They throw light upon the defendant’s motives and the workings of his mind. Their weight would be considerably affected by nearness or remoteness of time, and by intervening conduct. Bish. Crim. Pro., section 1110; Atkins v. State, 16 Ark., 568.
The subsequent declarations were extra-judicial admis-sions, and also tend to elucidate the springs of action.The relevancy of both classes,' so far as they concern Richardson, will appear from the discussion of the next assignment.
III. This was that the verdict wás contrary to evidence' All of these parties, Richardson, Barnes, Deno Casat and his father, Isadore Casat, had been servants of the St. Louis, Iron Mount & Southern Railway. The father was stationary engineer at the machine shops, and the son was also working there. The father was suspended from his functions between the first and twentieth of September, 1882, for neglect of duty and disobedience to orders. The order of suspension emanated from Richardson, but was communicated by Barnes. On the same day, of the next, the son demanded his time and quit work. He went to Texas, but in the latter part of October returned to Little Rock. On the 31st of October father and son were seen drinking together in a dram-shop in Little Rock, and the son, for the first time in three years, went home to dinner with his father. After thát meal they separated, the old man retiring to his bath room, where, a few minutes later, he took his own life, and the young man crossing the river over to Argenta, where the railroad shops were situated. At 1:35 p. M. he came into the machine depot, inquired for Richardson, and was informed that he was not there. At 3:10 p. M. he returned and again asked for Richardson, and was told he yras up on the Knobel Branch of the railroad. He then began to curse Richardson, saying he would kill him on sight. Barnes was at this time examining a ledger at his desk, and Casat turned and said to him, “I believe you are the cause of it any way,” and struck him on the head with his pistol. Barnes exclaimed, “for heaven’s sake, what have I done.” At this point a locomotive engineer, who was a friend of the Casat family, interposed and begged Deno to stop, reminding him that there was already trouble enough at his house, referring to the suicide of his father. Deno said he knew it, and it was caused by the men in that office. He recognized the engineer as a friend, but threatened to kill him if he should interfere. He then said to Barnes, “I guess I’ll kill you any way. So get down ou your knees and acknowledge that you have done wrong.” As the un fortunate man was in the act of kneeling Casat shot him through the brain, and he died a few hours later. Casat left the shop and hid himself in a clump of willows down by the river bank. His hiding place was discovered and he was summoned to surrender. He held up his hands and implored his pursuers not to shoot him.
The evidence discloses a shocking murder, unrelieved by one single feature of palliation. The killing of Barnes in the manner and under the circumstances detailed above was not denied. Neither was it pretended that there was the slightest provocation for the act. But the theory of the defense was and is, that by reason of drunkenness at and before the time of the killing Casat was incapable of that deliberate intention to take human life which is the distinguishing characteristic of murder in the first degree.
In a learned note to the case of Whiteford v. Commonwealth, 18 Am. Dec., 781-2, it is said: “The state of mind of the accused, at the time of forming the purpose to kill, is the important point in determining whether the homicide is murder in the first degree or not; and it is to this that the terms “deliberation” and “premeditation” used in the statute refer. * * It necessarily results from this that it is competent for one accused of murder in the first degree to give evidence of facts tending to show that his state of mind was such as to be unfavorable to deliberation, as by proving that he was intoxicated. Swan v. State, 4 Humph., 136; Haile v. State 11 Ib., 154; State v. Johnson, 40 Conn., 136; Boswell v. Comm., 20 Grat., 860. This is not making' drunkenness an excuse or extenuation of crime; it is merely permitting the accused to show inferentially that he did not possess that condition of mind which is necessary to the' commission of the crime. It is further to be observed that-where the design to kill was formed deliberately, and with premeditation, the tact that the accused afterwards became' intoxicated, and was so at the time of the killing, cannot affect the degree of the homicide.”
Here the jury might fairly have inferred, from the conduct and conversation of Casat, that he harbored malice and revengeful feelings against Richardson and Barnes for a supposed injury to his father; that he had meditated personal violence, if not destruction, to one or both of them, before he left Texas; and that on his return to Little Rock he had nerved himself with liquor for the deed. His utterances at Texarkana and at Marshall do not sound like the idle vaporings of a drunkard. He was sob,er when he made them. And they evince the settled hate and malig nity of a mind brooding over a real or fancied grievance.
But laying these declarations out of the case, the degree of drunkness that is proved falls short of that extreme point which can mitigate the enormity of his offense. The evidence does, indeed, show that on the morning of the fatal day, and for several days previous, Casat had been drinking more freely than was good for him. But this is not an unusual thing in cases of homicide. There is no evidence that the drinking had proceeded to the extent of producing any disease, either permanent, temporary or periodical, such as delirium tremens, mania-a-potu or dipsomania. So there is no proof that the ordinary effect of strong liquors was to make a mad man of him, as is its effect upon men of a certain temperament. Nor is there any cause to believe that on this particular day his reason was, by excessive indulgence, overthrown, and he no longer able to distinguish the nature and quality of his acts.
Perhaps the strongest evidence in this direction is that of the jail physician, who was called to Casat several days after his incarceration, and found him suffering from nervous excitement or prostration, which the physician attributed to dissipation, debauch and excessive use of liquors.
Even this nervousness might be explained by the abrupt cutting off oí the liquor supply.
But mere nervous excitement does not go far enough to reduce the gradé of the offense No voluntary intoxication can have that effect unless it is accompanied by a temporary . destruction of the reason. Shannahan v. Comm., 8 Bush, 463; S. C., 8 Am. Rep. 465; People v. Robinson 1 Parker, Cr. R., 649; Comm. v. Hart, 2 Brewst., 546; Pennsylvania v. McFall, 1 Add., 255.
If the inebriate’s memory has not been impaired, or his judgment perverted; if his physical senses, and especially his sight and hearing, have not become enfeebled or distorted; if he walks with a firm, elastic step; if he can distinguish friend from foe, and knows the difference between right and wrong, then he retains mind enough to plan and execute a murder.
Now while Casat may have been partially drunk when he killed Barnes, yet he was not in such a besotted condition as not to know what he was doing, or that it was wrong. The facts that he hid himself and begged his life of his captors, show that he was conscious that his act was unlawful, or at the least, that it was one which he ought not to do. But aside from this, we have the ordinary evidences of deliberation — previous threats, preparation' of a weapon, patient search for the intended victim, absence of provocation, dangerous nature of the instrument of death, and the manner of using it. The eye-witnesses of the final scene are unanimous that he was remarkably cool and collected, until he lashed himself into fury by the abuse of Richardson. He did not stagger like a drunken man, but his tread was quick and active.
IV. We come now to the charge of the Court. Seven special requests were granted at the instance of the State, five at the instance of the defendant, and the Court gave an elaborate charge of its own. The bill of exceptions does not show that any exceptions were reserved to the general charge. But if any had been taken, it was, considered in connection with the special instructions, a correct exposition of the law of murder, as applicable to the facts in proof. It defined murder, explained the difference between the two degrees of that crime, and instructed them in plain English as to what ingredients must enter into- the act to make the highest degree. It reminded them that the accused started out clothed with the presumption of innocence, and that this presumption attended him throughout the trial, and could only be broken down by proof convincing their minds, beyond a reasonable doubt, of his guilt. That whether the offense was murder in the first or second degree depended upon all the circumstances, and particularly upon the state of his mind at the precise time of the killing, and whether he knew what he was doing and that it was wrong. That they might consider the fact of drunkeness in determining the intent with which the act was done, and the degree of the crime; and if he was so drunk as to be unable to form a specific intent to kill, then he was not guilty of murder in the first degree.
Most of the matters involved ,in the defendant’s exceptions have been disposed of by what we have already said. But there was one instruction which has been much discussed here. It was in these words:
. “The killing being proved, it devolved upon the accused to prove by testimony fairly preponderating, that he was in such a condition at the precise time the deed was done, as not to know the consequence of his act, and not to know right from wrong; unless the testimony on the part' of the State show that he was in such condition.” ■
This seems to be in accord with Sec. 1252 of Gantt’s Digest; “The killing being proved, the burden of proving cir cumstances of mitigation that justify or excuse the homicide shall devolve on the accused, unless by the proof on the part of the prosecution, it is sufficiently manifest that the offense only amounted to manslaughter, or that the accused was justified or excused in committing the homicide.”
The instruction also follows McKenzie v. State, 26 Ark., 334.
It was the rule of the common law that the defendant who relied upon the plea of insanity as an excuse for crime must prove it as an independent fact. 1 Wharton Or. Law, see. 711, and cases cited; 2 Bish., of Or. Pro., sec. 672.
This is still the law of England, as may be seen by reference to M.Naghten’s Case, 10 Clark & Fin., 200. There the House of Lords propounded to the Judges a question as to what instructions should be given to the jury, on the trial of a prisoner charged with crime, when unsoundness of mind is interposed as a defense. The answer was, that the .jurors ought to be told that “it must be clearly proved that at the time of the committing of the act, the party accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or if he did know it, that he was ignorant he was doing what was wrong.”
This doctrine is also supported by the decided weight of' American authority. We are aware that several respectable courts have held that the prosecution must prove sanity beyond a reasonable doubt; while another line of cases have gone to the opposite extremity and have declared that'it is incumbent on the defendant to establish insanity beyond a reasonable doubt.
Of course the same .test of responsibility for criminal acts applies when the alleged incapacity to commit the particular crime proceeds from drunkenness as when it proceeds from insane delusion. State v. Johnson, 40 Conn,, 136; Wood v. State, 34 Ark,, 341; U.S. v. Roudenbush, 1 Bald,, 517,
The defendant also moved this instruction: “Unless the find from the evidence the specific intent to take lite, that it was formed beforehand and carried out with deliberation, they must acquit the defendant of murder in the first degree.”
This the Court modified by substituting the word ‘after’ in place of .‘with’ before deliberation. In Fitzpatrick v. State, 37 Ark., 256, an instruction in the precise language of the defendant’s prayer was approved by this Court. Rut we prefer the modification as a more accurate expression of the law and less liable to mislead. If the resolve to kill was formed ^deliberately and with premeditation, it could not reduce the grade of the offense that, at the time of the execution-of his purpose, the defendant was in a passion, or laboring under excitement. State v. Garrand, 5 Oregon, 216.
There is no error in the record and the judgment is affirmed. | [
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Shith, J.
One Hampden brought an action in the Craighead Circuit Court against the Railway Company to recover the value of certain goods alleged to have been entrusted to the defendants as a common carrier, and to have been lost. The writ commanded the Sheriff to summon the St. Louis, Iron Mountain and Southern Railway Company. And that officer indorsed upon it the following return:—
State of Arkansas, \ County of Craighead,
SCT"
• I have this 2d day of March, 1883, duly served the within by delivering a true copy of the same to the station agent, A. J. Henna, at Nettleton, on said railroad.
W. T. LaNE, Sheriff.
The Company did not appear, and judgment by default was rendered against it.
"We are now asked to quash this judgment because the Court had acquired no jurisdiction over the person of the defendant.
It is suggested that the return does not show a service of the writ upon the station agent of the corporation; in other words, does not show that Henna was its agent. But whatever ambiguity there may be in the return is . removed by an examination of the summons upon which it is inclorsed.
Buildiug Association v. Hagan, 28 Ark., 261,
The Sheriff asserts that he left a copy of the writ with Kenna, and that Kenna was then the agent of the defendant. If this is not so, the remedy is by action against the Sheriff for a false return., But the truth of the return could not be controverted either in that action or in a review upon certiorari.
Hollowed v; Page, 24 Mo., 590. Delinger v. Higgins, 26 Id;, 180. Stewart v. Houston, 25 Ark., 311.
The objection that the return does not show that the service was had in the officer’s own county was settled by this court at an early day, when technicalities met with more favor than the courts are now disposed to accord to them.-Henry v. Ward, 4 Ark., 150. Elliot v. Bank, Ib., 437. McNabb v. Bank, Ib., 555.
It is further urged that the return does not show the absence of the President or other chief officers of, the corporation from the county at the date of service. Section 4515 of Gantt’s Digest required the Sheriff, where he had served process upon an inferior officer of the corporation, to state as a reason for such service that the chief officer was not to be found in his county.-C. & F. R. Co. v. Trout, 32 Ark., 17. But the amendatory acit of March 9, 1877,.has changed this. Now, in the case of a railroad corporation, service is authorized upon any station agent or other person having control of any of the company’s business, who has to report to the company which employs him, or upon the clerk or agent of any station in the county where the process is issued.
The writ of certiorari is denied. | [
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Smith, J.
The defendant was indicted and convicted of the seduction of Lizzie Autrey, an unmarried woman, under a promise of marriage, and was sentenced to undergo imprisonment at hard labor in the penitentiary for the term of one year and to pay a fine of one dollar.
The indictment is based on Sec. 1319 of Gantt’s Digest: “Any person who shall be convicted of obtaining carnal knowledge of any female by virtue of any feigned or pretended marriage, or of any false or feigned promise of marriage, shall be imprisoned not exceeding two years in the penitentiary and fined in any sum not exceeding five thousand dollars; but no person shall be convicted of said crime upon the testimony of the female, unless the same be corroborated by other evidence.”
The defendant moved in arrest of judgment, because the indictment only stated that the parties were past the age oí puberty, and did not state that they were of full age, and so able to make valid and binding promises to marry without the consent of parents or guardian, nor even that they were of sufficient age to be capable in law of contracting marriage; which by our statute is fixed at seventeen years in males and fourteen years in females. This objection is frivolous.
The offense consists in having illicit connection with an unmarried female, who yields to the solicitations of her seducer under the inducement of a promise of marriage. And it may be committed by an infant upon an infant, provided they have reached the age of puberty. Kenyon v. People, 26 N. Y., 203. Crozier v. People, 1 Parker’s Criminal Rep., 455.
The evidence tended to show that Lizzie Autry was thirty-one years old and the defendant thirty; that in June, 1880, he had been her accepted suitor; that no criminal conversation had occurred between them until October, 1880, when he obtained possession of her person under an express promise of marriage; that she became pregnant and was in July, 1881, delivered of a child; that he paid his last visit to her on the first of April, 1881, when he was informed of her situation and renewed his promise to take her to wife on the following Thursday, but instead of keeping his word fled to Texas, from which State he addressed her letters, inviting her to join him there and suggesting that, for defraying the expenses of her journey, she might sell certain hogs, which, as we infer, belonged either to him or to her.
^ was assigned in the motion for a new trial and has been argued here, that the testimony of the prosecutrix was uncorroborated. The statute requires corroboration, but has not specified the particulars to which the corroboration must extend. This is obviously a branch of the rule, recognized by our statute (Gantt’s Digest, Sec. 1932) which forbids a conviction upon the unsupported testimony of an accomplice. The woman is in such cases particeps criminis. We therefore hold that her evidence must be strengthened by other evidence tending to connect the defendant with the commission of the offense. The promise of marriage and the fact of intercourse must be proved, either directly or inferentially, by testimony other than her own. See cases cited above and State v. Shean, 32 Iowa, 89.
Now, upon the point of a promise of marriage, the prosecutrix was supported by her mother, who stated that the defendant had, in August, 1880, asked of her Lizzie’s hand in marriage, and that she had given her consent.
In the nature of things, sexual intercourse is rarely susceptible of direct proof. It is usually inferred circumstances, opportunities and the relations and conduct of the parties to each other. Here the defendant was an accepted suitor and a frequent visitor; and her subsequent pregnancy and giving birth to a child, coupled with his flight and continued correspondence with her, are cogent arguments of his guilt.
If this were all that was in this case, we should unhesitatingly affirm the judgment of conviction. ♦ prosecutrix admitted that she had once been engaged to o o be married to one John White, who had afterwards married another girl; but denied that this engagement had been broken off on account of her lewduess. She also denied that she had permitted undue familiarities with her person upon a certain occasion from one Hudson, or had promised to grant him immodest favors if he would assist in promoting her marriage with the defendant. It was proposed on the part of the defense to show by Hudson and White that her answers to the questions asked her upon cross-examination were false, so far as related to them. But the Circuit Court ruled out this evidence. It should have been admitted by way of testing the ac curacy of her statements, if for no other reason. Hofter v. State, 16 Ark., 534.
But there was a deeper reason. In every prosecution for seduction the character of the seduced female is involved in the issue. And character means in this connection, not her general reputation • in the community, but the possession of actual personal ehastily. Now Lizzie Autry made oath that she had never had unlawful commerce with any man except the defendant, and only on two occasions with him. Ihe defendant offered to prove by Hudson, one of the State’s own witnesses; by White, to whom she had formerly been engaged, and by several other witnesses, that she was not a virtuous woman at the time of her alleged seduction, and interrogated these witnesses as to specific acts of criminal conversation with her. But the Court refused to permit the examination to proceed in this direction.
The evidence was competent. All the cases agree that, upon a trial for seduction, the girl’s chastity may be impeached by particular instances of incontinence, occuring before the defendant’s intimacy with her. This is in fact the best proof on the subject. Some Couits go so far as to hold that it is the only legitimate proof, and exclude evidence of general reputation. 2 Gr Ev., sec. 577; 1 Phillips Ev., 4th Am. Ed., p. 760; Bishop, Stat. Crimes, sec’s. 639, 649-50; Kenyon v. People and Crozier v. People, ubi supra; Safford v. People, 1 Parker Cr. R., 474; Carpenter v. People, 8 Barb., 603; State v. Shean, supra; People v. Clark, 33 Mich., 112.
It is not, indeed, expressed in our statute, as it is in the statute of New York and of some of the other States, that the woman should have been of previous chaste character. But it is plainly implied. The legislature never intended to send a man to the penitentiary for having had illicit connection, with a prostitute or a woman. of easy virtue, where she had consented, even under a promise of marriage. The statute of Michigan also omits the words “of previous chaste character,” but it has received the same construction as if they had been there. People v. Brewer, 27 Mich., 134; People v. Clark, supra.
As the defendant must have a new trial and'the statute is comparatively recent, we indicate the rules of evidence applicable to this issue.
Since, in the female sex, chastity is the rule and wants n • \ . . oí it the exception, the presumption is in favor of virtue, No evidence is required to establish it in the first instance, and the burden is on the defendant, if he would assail it, notwithstanding the presumption of his innocence. Andre v. State, 5 Iowa, 389; Boak v. State, Ib., 430; State v. Higdon. 32 Id,, 262. But see contra, West v. State, 1 Wis., 209.
The defeudaut may prove particular acts of immorality or indecorum, as well as her general bad character, % ° But the inquiry must be confined to the period preceding the defendant’s misconduct. No witness, however, be compelled to disclose, against his objections, whether he has ever had sexual intercourse with the prosecutrix, since his answer might tend to eliminate himself.
In rebuttal the State may prove her previous purity by her own testimony; and she cannot, on cross-examina- . • tion, be asked whether she had not previously been nal with other men, since such questions tend to degrade the witness in the estimation of the jury. If, however, such question is suffered to be put and she denies the imputation, witnesses may be called for the purpose of contradiction, as well as to prove the facts. It may be further shown that she was a woman of good character, of correct and modest deportment, and that until the occurrence with the defendant, she was considered by her acquaintances to be virtuous. If previous lapses from virtue are proved, reformation may be shown; for it may have been an indiscretion of which she instantly repented and which she never repeated. 2 Gr. Ev., sec. 577; State v. Shean, 32 Iowa, 88; People v. Clark, 33 Mich., 112.
Reversed. | [
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Smith J.—
May filed his bill in Chancery, alleging that he was a judgment creditor of II. R. "Withers and had caused an execution to be levied on the 12th of Febru ary, 1879, upon certain lots in the town of Coal Hill, as Ms property: that on the 25th of January, 1879, while said, judgment was in full force and alien upon all of the real estate irt Johnson County, in which the said debtor had any interest, Harman had conveyed the lots to the wife of Withers for a consideration which moved from the husband ; that this conveyance was intended to defraud the ‘creditors of Withers, who was insolvent; and that while the property was so subject to the plaintiffs judgment lien and after it had, in fact, been seized for the satisfaction of the husband’s debts, Mrs. Withers had reconveyed it to Harman and he had afterwards sold and conveyed the same to Rogers.
The prayer was that all of said deeds might be set aside as fraudulent obstructions to the assertion of plaintiff’s legal right and that the lots be subjected to the payment of plaintiff’s judgment. Harman, Rogers, Withers and wife were made defendants and were served with process. The three last named failing to appear and defend, a decree pro confesso was entered against them.
• Harmon answered that he owed Withers a fee of $250 for professional services as a lawyer and not having the present ability to pay, he sought to secure the same by executing to his wife a deed for the lots. He admits that the deed was made to the wife instead of -the husband on account of the husband’s insolvency; but avers that the transaction was in effect a mortgage, there being a parol understanding, which was afterwards carried out, that Mi’s. Withers should reconvey to him when he paid the fee. He, therefore, denies that Withers had any such estate in the lots as was bound by the lien of a judgment or liable to be taken in execution. He also says that the subsequent deed to Rogers was a mere security for a debt.
The cause went to bearing upon tbe *bill with its exhibits and the answer; no depositions being taken on either side. The decree was for the plaintiff.
The estate of a mortgagee before foreclosure is not subject of execution. State vs. Lawson, 6 Ark., 269, Trapnall v. State Bank, 18 Id. 53.
And wherever at the time of sale a vendor is indebted to the purchaser and continues to be indebted after the • i . sale, with a right to call for a reconveyene upon payment of the debt, a deed absolute on its face will be construed by a Court of Equity as a mortgage. Scott v. Henry, 13 Ark., 112; Farris v. King, 27, Id. 404; Rogers v. Vaughn, 31 Id. 62; Hughes v. Edwards, 9 Wheat, 489; Robinson v. Willoughby, 65 N. C., 520; White & Tudor’s Lead, Cas. in Eq; 4th Am. Ed., vol. 2, Pt. 2, 1983. (Note to the case of Howard v. Harris.)
Evidence, written or oral, is admissible to -show the real character of the transaction Porter v. Clements, 3 Ark., 364; Johnson’s Ex’r v. Clark, 5 Ark., 321. Blake-more v. Bymesidc, 7 Id. 505. Russell v. Southard, 12 How. 139. Peugh v. Davis, 96 U.S., 332.
But in the absence of fraud and imposition the proof must be clear and decisive. William v. Cheatham, 19 Ark., 278. Trieber v. Andrews, 31 Id., 163. Jones v. Jones 23 Ark., 212.
Here are no proofs ; only an answer tendering an issue. And without countervailing evidence the answer contains sufficient admissions to support the decree; provided May has not slept too long between the date of his levy and the filing of his bill to uncover the property.
The judgment was recovered before a justice of the-peace. After the issue of an execution and a return of “ nulla bona,” a transcript of the judgment was filed, October 20th, 1877, in the office of the clerk' of the Cir-< cuit Court of the county, where it was duly docketed. The effect of this was to make it a lien upon all .of Withers real estate in Johnson County, the same.as if it had been rendered by the Circuit Court. Gantt’s Digest, Secs. 3788-90.
On the 25th of January, 1879, Harman conveyed to Mrs. Withers, by deed absolute on its face. The execution was levied February 10, 1879, during the life of the judgment lien. On .the 6th of November, 1879, Mrs. Withers reconveyed to Harman and on the 31st of December, 1880, Harman conveyed to Rogers. The present bill was filed April 6, 1881, after the expiration of the judgment lien.- May must, therefore, rely on the lien springing from the levy of his execution, since it is well settled that a levy upon land within three years from the date of a judgment will not prolong the judgment lien for a single day beyond three years. Trapnall v. Richardson, 13 Ark., 543, overruling Trustees v. Watson, 13 Id., 74. Pettit v. Johnson, 15 Ark., 55. Lawson v. Jordan, 19 Id., 297.
The bill' charges and the answer of Harman admits, that the' conveyance to Rogers was a mere security for a debt. And as Rogers did not defend the suit, we may take the allegation for true and that the debt has been paid, thus laying his deed out of consideration and leaving the contest between Harman and May.
In Trapnall v. Richardson, ubi supra. Chief Justice Watkins said : “It is obviously the policy of our system of laws, to make the title to land depend upon matter of record, and not upon act in pais or resting in parol. The registry system is almost universal. Deeds, mortgages, mechanics liens, settlements of separate estates on the wife, and all incumbrances affecting the title to land, are required to be recorded in the county where the land lies, else they will not avail as against innocent purchasers. So judgments and decrees are required to be condensed into a judgment docket, to facilitate the examination of incumbrances, and open to the inspection of all persons interested in the title to the .land. The only exceptions are, when the execution is levied on land to which the lien of the judgment does not extend, e. q., where the execution is sent to another county, or when the lien has been determined, i. e., expired without revival, and in such case the execution is the lien from the time it comes to the officer’s hands, just as it is on personal property, which is never bound by the lien of the judgment and would probably have to be governed by the same rules as apply to personal property.”
In State Bank v. Etter, 15 Ark., 268, the Bank had recovered a judgment in Pulaski Circuit Court, and had sued out execution, directed to the Sheriff of Hempstead County, which was levied upon Cocke’s lands, there situate, but returned without sale by direction of the plaintiff. A few days after the levy, Cocke died and his administrator afterwards sold the lands, under-authority from the Probate Court, to a purchaser who knew they had been levied upon by the Sheriff. Two and a half years after the levy, the Bank sued out a writ of venditioni exponas to sell the lands. And upon a bill by the purchaser at administrator’s sale, to enjoin the sale under the execution, it was held that the judgment creditor could not pursue his lien without a revival of the judgment. This was placed upon the double ground'of the necessity of a revivor against the legal representative of the deceased before process could issue for satisfaction of the judgment and of unwarranted interference with the due course of administration. Upon the precise question before us, Mr. Justice Walker said: “As regards these, (judgments) the statute has limited the coutinuance of the lien; but with regard to execution liens, the statute is silent, aud the Court must necessarily determine, from delay and other circumstances whether the lien has been revived or abandoned.”
In Slocomb v. Blackburn, 18 Ark., 309, the levy was upon slaves. The defendant gave a delivery bond, which was returned forfeited, but no judgment was taken on the bond. The plaintiff lay by for more than five years, wheu he sued out a fieri facias, taking no notice of the previous levy. After the lapse of more than seven years from the return of the delivery bond, and after the death of the defendant, the plaintiff filed a bill in equity, against a party in possession of the slaves under claim of title, to enforce the specific lien of the levy, without showing any diligence or sufficient excuse for the delay. And it was held the lien was displaced. English C. J. said : “Our law does not favor the continuation of such liens for an unreasonable time. . . Perhaps, upon principle, when goods are levied on, a delivery bond taken and returned forfeited at the return term, and the plaintiff permits the next ensuing term of the Court to pass without taking out process to enforce the lien of the levy, he might, by such neglect, lose his lien as against intervening rights of other creditors or purchasers.”
In Patterson v. Fowler, 23 Ark., 459, the judgment lien had expired, and there had been a delay of nearly four years, between the return of the execution, under which the lands were levied on and the suing out of the Vend. Fxp., during all which time no step was taken to enforce the levy and no excuse given for delay. And this Court decided that it was too late to cut off the' intervening rights of a more diligent creditor.
In Barber v. Peay, 31 Ark., 392, an execution had been levied in the latter part of the year, 1870, on land, but returned without sale by direction of the plaintiffs attorney. The judgment lien was kept alive during the debtors life and after his death was revived against his administrators In July 1875, a venditioni exponas issued and upon a motion to recall and quash it, this Court held that the specific lien fixed on the land by the levy, had not been lost by laches.
In Owens v. Patterson, 6 B., Mon., 488, a fi. fa. was levied upon land, but the sheriff made no return for nearly three year*. Seventeen months after the levy, the defendents in execution sold and conveyed the land to a bona fide purchaser who had no knowledge of the levy. At the end of three years,, the execution was returned, a ven. ex. issued and the land sold and conveyed to the plaintiff' in execution. And it was ruled by the Court of Appeals of Kentucky, that the purchase from the defendant in execution was not overreached by the subsequent sale and conveyance under the ven. ex. But this was placed upon the ground that the execution had not been promptly returned, so as to give publicity to the fact of seizure and affect intermeddlers with notice. The creditor, had in effect concealed his lien,
In Deposit Bank v. Berry, 2 Bush, 236, inaction for three years without attempting to perfect a levy by sale of the property, was held calculated to conceal from the community the fact that there was a levy and an implied waiver or abandonment of the lien.
In Ruker v. Womack, 55 Ga., 399, it was held .that neglect for four years to enforce the levy, when there • was no obstruction in the way of its enforcement, the land being meantime in possession of a bona fide purchaser for value, was sufficient to discharge the lien.
In Porter v. Mariner, 50 Mo., 364, a sale made in 1865, based upon a levy made in 1861, was upheld.
The common law is that after a levy, the writ may be returned on the return day and the levy enforced by a venditioni exponas. Webster v. Wolbridge, 3 Dillon, 74.
And a levy preserves a lien upon the land, though no seire facias be had to revive the judgment; Brown v. Campbell. 1 Watts, 41.
Under, see 2630 Gantt's Digest, which subjects to seizure and sale on execution, all real estate whereof the defendant, or any person for his use, was seized at the rendition of the judgment or afterwards, perhaps the trust, which resulted to Withers from the payment of the purchase-money, might have been reached by his creditors through an execution sale; although many authorities hold that when a debtor has fraudulently bought property and had the title taken in the name of another, the aid of equity must be sought. Freeman on Executions, ss. 136. Rankin v. Harper, 23 Mo., 579. Dunnica v. Coy, 24 Id., 167.
But undoubtedly where a levy is made upon land, the title of which is in a fraudulent grantee, resort may be had to a bill in equity to perfect and clear the title. McLean v. Johnson, 43, vt. 48.
And this Court, in Sale v. McLane, 29 Ark, 612, indicated that it was the better practice .to settle the question of title before sale.
Under the circumstances of the present case, we do not consider the plaintiff’s delay for a period of about twenty-six months to file his bill so unreasonable as to . defeat the lien he had acquired by his levy.
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Eakin, J.
This is the same case which was remanded by this Court for proper parties at the November term, 1879. 34 Ark. 381. See that opinion for the pleadings and points presented thereby. Proper parties were made, and the cause was heard upon the merits. The complaint was dismissed for want of equity and complainants appeal.
The complainants, mortgagees under Six, stand in his shoes; and the contest is between Six and Rushing’s repreresentatives upon their respective deeds from the Auditor. The former claims under a statutory donation deed, and the latter claims under a deed executed to one whose improvement had been taken, and to whom no tender of the double value had been made within three months.
The first question arises upon the donation deed to Six. ... r Was it originally valid? It has been several times held by this court that these donations are matters of grace. The donee is not required to pay any of the taxes for which the land was forfeited, and he must comply with all the statutory conditions of the grant, without any regard to their policy or necessity. Surginer Ad. v. Paddock et al, 31 Ark., 528; Simpson v. Robinson, 37 Ark., 142.
By section 3895 Gantt’s Digest, the donee is required, alter completing the improvements required by the tions of the deed, to obtain from some Justice of the Peace residing in the township where such land is located, a certificate describing the land; that he had been personally on it within ten days; that the improvements were bona fide, and substantial, etc. This certificate, attested by the Justice and filed in the Auditor’s office, is made evidence that the donee has complied with the requirements of the conditions regarding improvements.
The certificate shown in this case is not that of a justice residing in the township of the land, but of one residing in another. It was not, therefore, evidence of the fact that the improvements had been made. But the statute does not make it exclusive evidence, nor make the filing of such certificate a condition subsequent, upon failure of which the deed becomes void. The essential conditions to the validity of the deed were prescribed by section 3894 of Gantt’t Digest. They were that the donee should reside upon, improve and cultivate at least three acres; or without residence, should, within eighteen months, clear, or have cleared, fenced, improved and placed in readiness for cultivation at least five acres. These were the expressed conditions upon failure of which it was provided that the land should revert to the State, and be again subject to sale or donation. The certificate of the Justice was directed as evidential. Without it the donee retained the burden of proving the matters aliunde, and incurred the risk of failure from loss of witnesses. The evidence in this case shows that the proper improvements were in fact made in proper time.
By section 3896 the donee was prohibited from selling the land until the requirements as to improvements had been fulfilled, and should he sell at all it was directed that a copy of said certificate filed in the Auditor’s office should be re corded with the conveyance. This concerned only the matter of recording, and the benefits to be derived from that, in preserving evidence of the improvements. The language of the act is not that all conveyances made without recording said certificates shall be void, but that “ all conveyance of such right before the land shall have been improved, as required by this act, shall be void; and the lands shall revert to the State.” If the lands have been, in due time, properly improved, and that be shown, a conveyance or mortgage of them would be good between the parties, unless the deed from the State had been annulled for some other cause, to be shown as matter of defense.
This leads to a consideration of the answer of Rushing, adopted by his heirs and administrator, which, in effect, is that at the time when the donation was made to Six, Rushing had upon the land a valuable and substantial improvement; that Six failed within three months to pay or tender him double the value of said improvements; that thereupon Rushing filed with the Auditor an affidavit of these facts, as required by law, and at the proper time was allowed to purchase from the State the land in controversy, by paying all arrearages of taxes charged upon it. A copy of the deed is exhibited.
The allegations of the answer are sustained by proof, which shows that Rushing, when the lands were donated, was the owner of a valuable improvement on the land. He was no less so because he had made it originally as an administrator, supposing it to be on land of the intestati; or because he made it for any other purpose. He had no right to make it as administrator, and the evidence sho ws that it was made upon his own credit or with his means. He was the owner/ The statute does not regard the motives which prompted the improvements.
The case of Simpson v. Robinson, which incidentally touches this point, (37 Ark., 132), was a case in equity decided upon its peculiar circumstances, and is not to be taken as declaring as a rule that the owner of an improvement, in order to defeat a donation claim, must show that he made it with reference to a future ’ purchase from the State of the land upon which it is situated. There the contest was really about two tracts which had been forfeited at different times. Robinson claimed one of them under a purchase at a Chancery sale in favor of the State; holding that defined tract under a parol contract from the purchaser, and making improvements upon it. The lands having been returned as forfeited for taxes, before the Chancery sale, together with adjoining lands. Simpson obtained from the State Land Commissioner a donation which included Robinson’s tract, and failed for three-months to tender Robinson the double value of his improvements. The latter thereupon made a premature effort to purchase from the State for taxes, not only his own tract, but all. The Auditor’s deed to Robinson was held void because it was premature, and it was remarked in passing that it would not have been equitable to have allowed him to use improvements, so made, to defeat a donation deed to an adjoining tract. The remark is to be confined to the peculiar equities of the case.
The improvements were upon his own land, held by superior title, and made for its enhancement in value. The decision oí the Court did not involve the present question in any manner, as it was based upon the ground that the land of Robinson was not in fact subject to donation at all, inasmuch as all the right of the State had passed to the purchaser at the Chancery sale, and he himself took nothing by the Auditor’s deed for taxes. He was left in possession of what he had, regardless of either, his title resting upon the superior lien of the State, to foreclose which the sale had been made in Chancery.
The act of January 11, 1851, in force when the transactions occurred, provided in Sec. 1 that any person obtaining a donation from the State of forfeited lands should, within three months from the date of his deed, pay to the owner of any improvement thereon, double its value, and ' should within thirty days thereafter file the receipt with the Auditor. This Six did not do.
The statute proceeds to enact: that, if it be not done, such donee shall forfieit all right to the land, and the owner of the improvement, upon filing.with the Auditor an affidavit that he owned an improvement on the land when it was donated, and that the donee has not made nor tendered the required payment, “shall be allowed to purchase said land, including his improvement, by paying all arrearages of taxes which may be charged thereon, in the same manner as if this land had never been donated, and the Auditor shall execute to such purchaser a deed,” etc.
There is no question in this case but that the application to purchase had been made in apt time, and in a regular manner by Rushing, and that the deed had been made.
The evidence • shows that he did own a valuable improvement on it when it was donated, and that being established, the original donation deed was forfeited by the failure of the donee to make payment and file the receipt within the prescribed time.
It is not necessary to discuss the extent of the rights of Rushing on said forfeiture. Six had no title left whatever, and his mortgages cannot stand in better attitude than he would have done himself in a suit against Rushing for title. They knew that Six’s only title rested upon a donation, and cannot complain if they are held to show that all the requirements of the statute have been fulfilled, or held to a forfeiture upon showing that they have not.
Affirmed. | [
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English, C. J.
The indictment charged that Dan Redman on the 1st day of March, 1882, in the county of White, did sell ardent spirits in less quantities than one quart, to-wit: One gill of whiskey to one W. W. Watson, without first having procured a license from the County Court of White County, authorizing him to sell ardent spirits in such quantities.
Defendant pleaded not guilty, and the case was submitted to a jury.
■ W. W. Watson, witness for the State, testified in substance, that he was a drinking man, and frequently intoxicated when he could get whiskey. That defendant was engaged in selling whiskey at Bradford, in White county, in the year 1881, and he frequently purchased whiskey from him by the quart. ■ That he bought two bottles of whiskey from defendant about the 1st of March, 1882, put them in his saddle bags, and left them at defendant’s house until next day. Did not pay him the whole price of the two bottles, but owed him a balance on them. After he purchased the whiskey he frequently drank in the house, but could not say whether it was his own whiskey he drank or not. He remembered that on one occasion he called for whiskey, and defendant handed him a bottle of whiskey at the counter, out of which witness and a friend drank, both pouring out of the bottle into glass tumblers, and drinking, and at that time witness paid defendant twenty cents, which he thought was for the drinks.
On cross examination he stated that it might have been that the whiskey which his friend and he drank was his own whiskey, out of one of the bottles which he had purchased, and left in the house with defendant, and the twenty cents which he paid defendant might have been a payment on the bottles of whiskey, and not for the two drinks taken by his friend and himself, but at the time he thought he was paying the twenty cents for the drinks, but was not certain of this.
"Witness was asked by the defendant if he had not, on the morning of the day of the trial, stated to Louis Mc-Kinnon, in the town of Searcy, that he had never purchased whiskey by the drink of defendant, that all the whiskey which he drank in the house of defendant was out of a quart bottle which he had purchased of defendant; and that the twenty cents which he paid defendant was intended as a payment for the two bottles of whiskey which he had previously purchased of defendant.
To which witness answered that he did not remember whether he made such a statement to Louis McKinnon.
Louis McKinnon was then called, and testified that "Watson had made such statements to him.
No exception was tallen to the charge of the Court to the jury.
Defendant was found guilty and fined $200, a new trial was refused him, and he took a bill of exceptions and brought error.
I. There was some evidence to sustain the verdict, and it was the province of the jury to weigh it, and judge of the credibility of the witness Watson.
It was admitted on the trial that plaintiff in error had license to sell whiskey in quantities not less than one quart, but no license to sell in smaller quantities.
When Watson, accompanied by his friend, called for whiskey at the counter, it is not probable that plaintiff in error went to the saddle bags of his customer, took out one of the bottles which he had sold him, placed it on the counter to supply them with drams, and received twenty cents for the two drinks as a payment on a debt. The jury could not credit such version of the transaction.
II. Plaintiff in error asked a new trial, not only on the ground that the verdict was not warranted by the evidence, but that he was surprised by the testimony of Watson, and that he could prove on another trial, by persons named, that he had made contradictory statements, and by other witnesses named that his general character for truth and veracity was bad, and he supported his motion by affidavits of the persons mentioned.
This Court has repeatedly decided that newly discovered evidence, that goes only to impeach the credit of a witness, is not sufficient ground for a new trial. Campbell v. State, 38 Ark., 509; and cases cited, Nick Walker v. State, 39 Ark., 221.
Affirmed. | [
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ENGLISH, C. J.
On the 23d ©f August, 1880 Levica J. McWhirter and husband, G. W. McWhiiter, commenced this suit for dower in the Circuit Court of Fulton county, against Wilberson P. Roberts, W. L. Livingston, as administrator, and Ollie T. Davis and Mary Belle Davis, heirs at law of Starlin W. Davis, deceased.
The bill alleged, in substance, that Levica J. was the wife of Starlin W. Davis, who died intestate in'Fulton county, 30th of May, 1872. That during their coverture, and at the time of his death, he was seized and possessed of the north half of the southwest quarter of section one and the east half of the southeast quarter, and the east half of the northeast quarter of section two, in township nineteen north, range eleven west, containing 240 acres.
That prior to his death, and on the 13th of September, 1871, said Starlin ~W. Davis executed to James W. Butler and William R. Miller, partners under the firm name of Butler & Miller, a mortgage upon said lands, in which plaintiff, Levica J., then his wife, did not join him. That the lands remained in possession of his estate until the year 1876; that* the mortgage was foreclosed in the year 1875, and the lands sold to satisfy it, and purchased by defendant Roberts, who is in possession of them, claiming to be seized in fee.
That plaintiff, Leviea J., as widow of said Starlin W. Davis, was entitled to dower in said lands, (which were worth $1200), and her dower has not been assigned to her. That she intermarried with her co-plaintiff, G. W. MeWhirter, in 1873. That defendant Livingston was administrator de bonis non, and defendants Ollie T. and Mary Belle Davis, the only heirs at law of Starlin W. Davis.
Prayer that dower in said laid lands be decreed to plaintiff, Lavica J., and commissioners appointed to lay it off, etc.
The administrator and heirs of Starlin W. Davis made no defence.
Defendant Roberts answered, setting up four grounds of defence: First, That Leviea J. was a party to the foreclosure suit of Butler & Miller, and barred of dower by the decree and sale.
Second. That she had been assigned dower by the Probate Court in the lands of her deceased husband.
Third. The statute of limitations.
Fourth. That defendant had acquired title to one of the tracts by tax forfeiture sale, etc.
On the final hearing the Court dismissed the bill for want of equity, and plaintiffs appealed to this Court.
I. Was Mrs. MeWhirter barred of dower by the decree in the foreclosure suit?
The material .facts disclosed in the transcript relating to this question are substantially as follows:
On the 13th of September, 1871-, Starlin W. Davis executed to Butler & Miller a mortgage upon the lands described in the bill to secure the payment of a note for $597.--64, in which appellant, Leviea J., then his wife, did not join.
On the 11th of February, 1873, Butler & Miller filed a bill in the Circuit Court of Fulton county to foreclose the mortgage. The bill set out the note and mortgage, and alleged that Starlin W. Davis died intestate, on the '30th of May, 1872, leaving him surviving his widow, Levica J., and Ollie T. and Mary Belle, his children and only heirs at law; and on the 13th of August 1872, letters of administration upon his estate were granted to James M. Chestnut and Solomon M. Davis; and that the debt secured by the mortgage had been probated but not paid.
The widow, heirs and administrators were made defendants, but it .was not alleged that the widow had or claimed dower or any other interest in the lands embraced in the mortgage. She was simply made defendant to the suit as widow of the mortgagor.
The bill prayed that the mortgage be foreclosed, the premises sold and the proceeds applied to the payment of the debt and interest.
It does not appear that any of the defendants answered the bill. A record entry of the 23rd of April, 1875, shows that the parties appeared by their attorneys; that the death of James M. Chestnut was suggested, and' the suit ordered to abate as to him; and that the marriage of the widow with G. W. McWhirter was also suggested, and the suit ordered to proceed against her as Levica J. McWhirter.
The final decree was entered on the same day, commencing thus:
“And it being represented to the Court.that the defendants hereto have admitted and agreed that all and singular the allegations, matters and charges in the plaintiff’s complaint, as therein stated and set forth are true, and have consented thatjudgment and decree be rendered herein, in accordance with the prayer of said complaint,” etc. Then follows a recital of the iacts alleged by the bill; a decree in favor of But ler & Miller against Solomon M. Davis, as surviving administrator, etc., for the debt and inteiest; “and that the equity of redemption of said defendants be and the same is hereby foreclosed in and to the lands conveyed by said mortgage,” describing them, and appointing Melvin N. Dyer special commissioner to sell the lands, in accordance with and to satisfy the decree.
The lands were sold by the commissioner 25th of October, 1875, on six months credit, purchased by Charles Phillips for $65, who transferred his certificate of purchased to James ~W. Butler, and the commissioner executed to him a deed on the 10th day of November, 1876, under the approval of the Court.
On the 26th day of October, 1877, Butler and wife, for the consideration oí $500, conveyed the lands with the covenant of warramy, to appellee, Wilkerson P. Roberts, and it is the above decree that he pleaded as a bar to Mrs. Mc-Whirter’s claim of dower in the lands in question.
The purpose of the foree^sure suit was to bar the equity of redemption of the administrator and heirs of the gagor. The widow had no equity of redemption in the lands. She had a dower right in them which was paramount to the title of the mortgagees and the mortgagor, or persons claiming under him. There was no allegation of the bill calling in question or tendering an issue as to her right of dower, if it could have been litigated in a foreclosure suit. She admitted, it seems, the allegations of the bill to be true, and consented to a decree of foreclosure, which it is not probable she would have done had it been alleged that she had no right to dower in the lands, or had it been understood by her that the effect of the dfecree would be to bar her right of dower.
.. It has been decided that where the widow of a mortgagor is made a party to a suit to foreclose a mortgage, and her right to dower is not put in issue, it is not barred by the decree of foreclosure. Lewis v. Smith, 11 Barbour, 152; Freeman on Judgments, 3rd Ed., Sec. 303, etc.
II. In support of the second ground of defence, appellee exhibited with his answer a transcript of the record of proceedings in the Probate Court of Fulton county in a suit for dower, which shows the followiug facts :
On the 27th of May, 1873, Leviea J. MeWhirter filed in the Probate Court of Fulton county a petition for dower in the lands of her former husband, Starlin W. Davis, in which her. then husband, G. W. MeWhirter, joined, and the heirs and administrators of her deceased husband were made defendants.
At the March term, 1876, dower was adjudged to her by the Court and Commissioners appointed to lay it off/
At the December term, 1876, the Commissioners reported that they had set off to Mrs. MeWhirter, as dower in the lands of her deceased husband, the south-west quarter of the south-east quarter, of section twenty-two, and part of the north-west quarter of the north-east quarter of section twenty-seven, (described by metes and bounds, and containing one and a half acres,) in township twenty, north, range eight west; and one-third interest in the following lands, not laid off nor estimated in the above, to-wit
Here follows a list of lands embracing, perhaps, the lands in controversy in this suit, differently described in part.
Mrs. MeWhirter and her husband filed an acceptance of the dower laid off to her by the commissioners in the two tracts above described, releasing any further claim to dower in them, but reserving her claim to dower in the other lands described in the commissioners’ list.
Here the matter seems to have terminated in the Probate Court. The commissioners were, not ordered to complete theii work, nor was there any final judgment in the suit,
The proceedings in the Probate Court were no bar to this suit.
III. Nor was this suit barred by the statute of limita-2. * # tions. The statute did not run in favor of the heirs of Starlin W. Davis, whose duty it was to assign dower to MeWhirter. James W. Butler, under whom appellee, Roberts, claims title to the lands, received the commissioner’s deed under the foreclosure sale, 10th of November, 1876, and this suit was commenced within less than seven years from that time. Stidham and“ wife v. Matthews et al 29 Arle., 660.
IY. The fourth ground of defence set up in the answer 0 1 of appellee Roberts, applied only to the North half of the Southwest quarter of section one, Township nine North, Range eleven West.
The answer alleged that this tract was forfeited for nonpayment of taxes of 1874 and 1875, and sold and conveyed by the State to Solomon Davis on the 8th of March, 1879, as shown by the deed of the Commissioner of State Lands, made an exhibit. That on the 12th of April, 1879, Solomon Davis and wife, by deed of that date, made an exhibit, conveyed the same tract to appellee Roberts.
The deed from the Commissioner seems to be regular on its face, and is prima faeie evidence of a valid tax-forfeiture and sale by the State. There is nothing in the transcript to show that Solomon Davis was under any obligation to pay the delinquent taxes on the land, or that he might not make a valid purchase from the State.
The forfeiture of the land to the State for non-payment of taxes, and the sale by the State, after the time for redemption expired, divested Mrs. MeWhirter of any claim to dower in the land.
The decree dismissing the”suit for want of equity¿must be reversed, and a decree entered here in favor,of Mrs. Mc- Whirter for dower in all of the tracts of land described in the bill, except the tract forfeited for taxes, &c., and the decree certified to the Court below to be executed by the appointment of commissioners to lay off' her dower, &c. . | [
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Smith, J.
Grace was indicted for removing beyond the limits of Johnson county certain cotton and corn, “on which a lien did then and there exist, in favor of H. E. Hudspeth as the landlord and owner of the land on which the same were produced without the consent of the said Hudspeth.” His demurrer to the indictment was overruled and an exception noted. Upon the trial, which resulted in his conviction, it appeared that the contract between him and Hudspeth was verbal and that no lien or notice of lien had been recorded or filed. He ^moved the following instruction which was refused': “If the jury find from the evidence that the landlord’s lien upon said corn and cotton had never been recorded or filed, they must acquit.”
In his motion for a new trial he incorporates the refusal of the Court to give this direction and also alleges that the verdict was contrary to law. He also moved in arrest of judgment on account of the insufficiency of the indictment to charge a public offense.
The act of February 3rd, 1875, provides that any person who shall remove, béyond the limits of this State, or of any county wherein the lien may be recorded, property of any kind, upon which a lien shall exist, by virtue of a mortgage or deed of trust, or by contract of parties or by operation of law, without the consent of the person in whose favor such lien shall have been created, or exists by law, shall be guilty of a felony.
Section 1409 of Gantt’s Digest, of which this act is amendatory only made it punishable to remove property upon which there existed a recorded lien.
It was probably the intention of the Legislature to extend the law so as to cover removals of property bound by an unrecorded lien. But by using the language of the old Statute, which described only one of the two classes of cases designed to be reached, and by endeavoring to express in one section what could have been more appropriately said in two or more, obscurity and confusion have resulted. Grace’s ease appears to be within the mischief intended to be remedied, but not within the words of the act.
Now the offence is purely statutory. It is not a crime in itself to remove property that is subject to a lien; it is only so by the prohibition of the statute. And “in expounding penal statutes, it is an established rule, that the construction must he strict as against the defendant, hut liberal in his favor.” Meyers vs. State, 1 Conn. 502, Bishop on Statutory Crimes, Secs. 190, 196-7.
Our conclusion is, that to make the removal of crops subject to a landlord’s lien beyond the county a crime, the lien must be recorded. Where the lease is by parol, this is of course impossible.
Reversed and remanded with directions to sustain a demurer to the indictment. | [
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Richard B. Adkisson, Chief Justice.
Appellant brought this action for the wrongful death of her son, Joseph A. Banks, alleging that the appellee, Bob Pollard, Jr., was negligent in directing her son to drive a tractor across a county bridge. The trial court granted a directed verdict for the appellee, finding that the appellant had failed to sustain her burden of proving negligence. We affirm.
The correctness of the lower court’s action is tested by viewing the evidence in the light most favorable to the appellant-plaintiff. We must give the appellant’s evidence its highest probative value, taking into account all reasonable inferences deducible therefrom, and affirm only if the evidence viewed in that light would be so insubstantial as to require a verdict for the appellant to be set aside. Cowling & Assoc., Inc. v. Bd. of Educ. of Clinton School Dist. #1, 273 Ark. 214 (1981).
The evidence presented showed that on June 11, 1976, the appellee directed his employee, Joseph Banks, to transport a 14,000 lb. tractor to Hughes, Arkansas, by way of Highway 79. In the course of this trip Joseph was killed when the two center spans of a wooden bridge over Fifteen Mile Bayou collapsed. This road was customarily used by all farmers in the area to transport farm equipment. Two days prior to the accident the same tractor and a 16,000 lb. tractor were driven across the bridge and neither driver reported a defect in the bridge. Bob Pollard, Jr. testified that he had personally driven a 23,000 lb. combine across the bridge about six months earlier and that he had recently driven across the bridge several times; he stated that the bridge and road appeared to be in proper condition.
Generally, the law does not place upon an employer the duty of inspection and repair of premises not under the employer’s control. Nelly v. Goldberg, 195 Ark. 790, 114 S.W. 2d 455 (1938). But an employer does owe a duty to exercise reasonable care in providing a safe place to work for his employee. Basye v. Odom, 205 Ark. 423, 168 S.W. 2d 1092 (1943). It was necessary for the plaintiff to prove that the employer either knew or by the exercise of ordinary care could have known that the bridge was defective and dangerous. Sparkman Hardwood Lbr. Co. v. McCann, 190 Ark. 552, 80 S.W. 2d 53 (1935). Here, there was no evidence that the appellee knew or could have known by the exercise of ordinary care that the bridge was defective. To the contrary, the evidence reflects that the appellee had moved equipment the same weight or heavier over the bridge two days prior to the accident and that he had personally viewed the bridge three or four days before and had seen nothing that gave him cause for concern.
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Steele Hays, Justice.
On the morning of December 21, 1975, the body of John Tillman Hussey, a Springdale Police Officer, was found in a wooded area west of Fayetteville. His hands were handcuffed behind his back and he had been shot four times through the head with his service revolver. In January a felony information was filed charging the appellant and Harold Davey Cassell with the crime of capital felony murder of a police officer acting in the line of duty. Ark. Stat. Ann. § 41-4702 (Supp. 1975). Seventeen months later appellant was arrested in Denver, Colorado, using an assumed name. He was tried, convicted and appeals the judgment sentencing him to life without parole, alleging six errors. We affirm the judgment.
I.
Appellant’s former girl friend, Ms. Connie Marie Caves, provided crucial testimony for the prosecution, including several incriminating statements which she said appellant made to her while they were living together. Appellant insists that he and Ms. Caves were husband and wife under the law of Texas, one of 13 states recognizing common law marriages, and that his claim of the marital privilege should have been granted. Because the issue is critical and involves the law of another state, we examine it in detail, looking first to the evidence and then to the applicable law.
Appellant married Susan Frazier Renton in 1972 and heard indirectly that she had divorced him in 1975, around the time he met Ms. Caves, a high school senior in Salisaw, Oklahoma. Immediately after her graduation Ms. Caves and the appellant left Oklahoma. They first travelled to Arkan sas and then to Texas where a simulated wedding ceremony was performed on June 8, 1975. The implication of Ms. Caves’ testimony is that appellant had promised to marry her and the ceremony was an appeasement which she characterized as a “farce” — the witnesses and the appellant using aliases and treating the matter as a joke. What the legal significance may have been is essentially moot, however, because appellant and Susan Frazier Renton were not divorced until April 28, 1976, almost a year later.
There are a number of aspects of this relationship which are seldom, if ever, present in common law marriages: The traditional use of surname is lacking as appellant appears to have used aliases entirely, even in the putative ceremony; one party to the relationship, appellant, claims their relationship was a marriage, whereas Ms. Caves did not consider it a marriage; the parties would at times register at motels as man and wife, usually as Mr. and Mrs. Jimmie Lee Ford, but at other times they would not; they held themselves out as man and wife at times and at other times they disclaimed any marital relationship, notably while living in Oklahoma City from October, 1976, to early 1977, during which appellant posed as Gene Harold Chapman and Ms. Caves as Kathy Taylor, identified to their acquaintances as the sister of appellant’s deceased girl friend; at one point appellant told Ms. Caves to tear up the “marriage license;” the relationship, 'according to Ms. Caves, was tainted by appellant’s urging her to engage in prostitution, to share him and his bed with a Rita Shapp and to have sexual relations with his friend Cassell, all of which she refused; rather than continuing until the death of one, the relationship ended abruptly in January of 1977 when appellant left Ms. Caves and was arrested a year and a half later in Denver, during which she gained the impression that he had taken another girl friend; after his arrest, appellant denied any marital tie to Ms. Caves, answering more than once under oath that he ws separated from Susan Frazier Renton and on one occasion naming Rita Shapp as his wife. He insists this was done to protect Ms. Caves, and perhaps so, but his disavowal is a relevant fact in determining whether he and Ms. Caves regarded themselves as husband and wife. His denial, coupled with the other unusual aspects, is incon gruent with the good faith requirement of common law marriages. Bickford v. Carden, 215 Ark. 560, 221 S.W. 2d 421 (1949).
Appellant relies on the law of Texas, but when that body of law is examined in the light of the evidence the claim cannot be sustained. The Texas statutory definition of informal marriages is found in Texas Family Code Ann. § 1.91 (Vernon 1975), providing that such marriages may be proved by evidence that the parties agreed to be married and after the agreement lived in Texas as husband and wife, representing to others that they were married.
There is an abundance of case law that claims of common law marriages should receive “close scrutiny” by the courts. Bodde v. State, 568 S.W. 2d 344 (Tex. Cr. App. 1978); Chatman v. State, 513 S.W. 2d 854 (Tex. Cr. App. 1974). It is said that the agreement of marriage must be specific on both sides. Archie v. State, 511 S.W. 2d 942 (Tex. Cr. App. 1974). In the case of Welch v. State, 151 Tex. Cr. R. 356, 207 S.W. 2d 627 (1948), it is said that stability and permanence are “vital” to common law marriages.
In McChesney v. Johnson, 79 S.W. 2d 658 (Tex. Civ. App. 1934), it was said that consistency was an essential requirement of common law marriages, and
[i]f the conduct of such contracting parties does not show clearly an honorable abiding by such agreement before the eyes of their world of associates and contacts, then it should not receive judicial sanction. (Emphasis added.)
Two early Arkansas decisions examining Texas common law marriages are Evatt v. Miller, 114 Ark. 84 (1914), and Darling v. Dent, 82 Ark. 76 (1907). Dicta from both opinions cite the requirement that the parties must agree presently to take each other as husband and wife and live “from that time on professedly in that relation.” (Emphasis added.)
Appellant has still another hurdle: At the time the alleged common law marriage began he was still married to Susan Frazier Renton and continued to be until April 28, 1976. He contends that no new agreement is necessary to validate the marriage after the impediment is removed, relying on Gorman v. Gorman, 166 S.W. 123 (1914) and Bull v. Bull, 29 Tex. Civ. App. 364, 68 S. W. 727 (1902). Both cases are distinguishable: In Gorman the couple continuously lived together as man and wife until the death of one, never knowing of any impediment to their marriage. In Bull, in contrast to the case before us, there was no evidence that the couple separated or resumed single status, or did anything inconsistent with a marriage status for 13 years until the death of one, four years after the impediment was removed.
We can find no evidence appellant and Ms. Caves ever cohabited in Texas after appellant’s divorce, nor any evidence from which a new agreement to be man and wife can be inferred. They did cohabit briefly in Seattle, Washington, after appellant’s divorce, but common law marriages are not recognized in that state. In re McLaughlin’s Estate, 30 Pacific 651. Clark on Domestic Relations, 2d Ed., Sec. 3, p. 67.
If more were necessary, we note that on more than one occasion after his arrest appellant was asked if he was married and answered “no.” It would be a gross distortion to say that a relationship as dubious as this one, clearly lacking in the essentials of stability, consistency and permanency, could rise to the level of marriage, either before or after the divorce, and we readily conclude that the trial court was correct in refusing to invoke the marital privilege. The purpose behind the marital privilege is to promote the permanency and solidarity of the marital union; to cloak this relationship with the protective sanctions of marriage would serve only an unworthy end.
II.
Appellant argues that the State failed to prove that Officer Hussey was acting in the line of duty as required by the Capital Murder Statute, Ark. Stat. Ann. § 41-1501 (1) (b) (Repl. 1977), citing Mullaney v. Wilbur, 421 U.S. 684 (1975), for the proposition that the State must prove every element of the charge and aggravating circumstance in enhancement of the degree of culpability, beyond a reasonable doubt. The State’s proof was sufficient.
The distinction between a police officer’s duty and his authority to make a lawful arrest is essential. Officer Hussey was not stripped of his capacity to act as a policeman in the line of duty merely by leaving the Springdale city limits. Since Officer Hussey could not testify, proof of the lawfulness of the stop of the International Travel-all is not available. Under these circumstances, any conclusion that Officer Hussey was authorized to act as he did pursuant to the Arkansas “fresh pursuit” statute is speculative, but nonessential. An abundance of evidence was presented from which the jury could conclude that Officer Hussey was acting in the line of duty. Hussey had gone on duty at midnight on December 20, 1975, and between the hours of 3 and 4 a.m. was on patrol. At 3:49 a.m. he reported to the Springdale radio dispatcher that he was stopping a vehicle bearing a Texas license plate numbered JEX966 for a traffic violation. Hussey made this report near the southern border of Springdale. Moments later his car was found, door open and lights flashing, about eight tenths of a mile south of the Springdale city limits but with Hussey missing. Officer Hussey was working in an area where he would be expected to be, the incident happened during his regular shift and he was engaged at the time in duties regularly performed and expected. Thus, the elements of time, activity and location, all coincide to support the conclusion that he was acting in the line of duty when the events began which led to his death. In Meyers v. State, 253 Ark. 38, 484 S. W. 2d 334 (1972), we held a policeman to be acting in the line of duty where he attempted an arrest for a misdemeanor while off-duty and working as a security guard. “He is, in a sense, on duty 24 hours a day, seven days a week. ...” Meyers, at 46. The obvious purpose of this statute is to protect the public generally by affording special protection to those who accept the ever-increasing hazards of police work. There can be no doubt that the circumstances surrounding the death of Officer Hussey were contemplated as coming under the language of this statute.
III.
Next, appellant alleges a pattern of violations by the State of Rule 17.1, A. R. Crim. P., Ark. Stát. Ann., Vol. 4A, 476, 477 (Repl. 1977) has deprived him of a fair trial. This rule obligates the State upon timely request to disclose the names and addresses of its witnesses and any statements attributed to the accused or a co-defendant. Earl v. State, 272 Ark. 5, 612 S. W. 2d 98 (1981); Dupree v. State, 271 Ark. 50, 607 S.W. 2d 356 (1980).
Rule 19.7 (1), Arkansas Rules of Criminal Procedure gives the trial court discretion to impose certain sanctions for noncompliance with a discovery order as follows:
(a) If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule or with an order issued pursuant thereto, the court may order such party to permit the discovery or inspection of materials not previously disclosed, grant a continuance, prohibit the party from introducing in evidence the material not disclosed, or enter such other order as it deems proper under the circumstances. (Emphasis added.)
Three specific violations are emphasized in appellant’s brief:
Appellant contends the State’s refusal to reveal the location of Ms. Caves and its delay in affording an opportunity to discovery testimony was prejudicial to his case. The record shows:
(1) The court arraigned Renton on August 24, 1978, and set trial for November 27, 1978 [R. 500] later changed to December 4, 1978;
(2) Renton filed a Motion For Discovery on August 29, 1978, asking for the names and addresses of witnesses, and the substance of oral statements made by Renton and co-defendants [R. 6-8];
(3) Two weeks later, the State answered Renton’s motion on September 11, 1978. The State did not list Connie Caves as a witness. The State said there were no oral statements made either by Renton or co-defendants to law enforcement officers [R. 10-16; Response to Bill of Particulars];
(4) On November 14, 1978, the State revealed that it would call Connie Caves [R. 345] as a witness;
(5) On November 21, 1978, continuance granted appellant;
(6) On June 23,1979, appellant afforded opportunity to interview Ms. Caves;
(7) On July 9, 1979, trial began.
Under Rule 19.7 (a), it is within the trial court’s discretion to employ any one of the listed sanctions or one of its own choosing where there is a failure to comply with discovery. Upon timely request, the trial court afforded appellant with an opportunity to interview Ms. Caves on June 23, 1979, sixteen days before the trial commenced. Appellee contends any failure to comply with discovery regarding Ms. Caves was properly remedied by the interview as a permissible sanction under Rule 19.7 (a). Rule 17.1 imposes a duty upon the state to disclose all material and information to which a party is entitled in sufficient time to permit his counsel to make beneficial use of it. Dupree v. State, supra; Williamson v. State, 263 Ark. 401, 565 S.W. 2d 415 (1978). Appellant has not shown any prejudice resulting from the delay in being allowed to interview Ms. Caves, nor did he move for continuance after their interview, claiming insufficient time to make beneficial use of the information received.
Appellant contends the circumstances surrounding his interview with Ms. Caves with officers of the FBI present prevented any chance he had of obtaining information helpful to the defense. Rule 17.1 only allows a criminal defendant the opportunity to discover the state’s testimony prior to trial. As this court stated in Dupree v. State, supra, “[A] defendant in a criminal case cannot rely upon discovery as a total substitute for his own investigation.” At page 55. Appellant argues no affidavit or other factual showing was made by the State indicating Ms. Caves feared for her safety and necessitating that the interview be under restrictive circumstances. Appellant cites no authority requiring such affidavit in this context. In reviewing the circumstances of this case, the source and reasonableness of Ms. Caves’ fears are so obvious that further factual showing is unnecessary. There are special considerations in this case: She was a “critical witness,” as characterized by appellant, in a capital murder case involving the execution-style killing of a police officer by a group whose only visible vocation was illicit. We believe fears for her safety were not unjustified and the precautions taken were not excessive.
B.
Donald Gunnarson testified that he was one of several FBI agents who arrested the appellant in Denver, Colorado. (T. 3880) He said at the time of the arrest the appellant stated “you caught me short” and something to the effect that the agents were fortunate that they weren’t hurt. (T. 3881) The prosecuting attorney admitted that by an oversight he had neglected to inform defense counsel of this statement prior to trial. (T. 3834, 3835) The trial court then held a Denno hearing out of the presence of the jury (T. 3841-3859) and allowed Gunnarson to testify to the statement. (T. 3881)
This action is claimed to require reversal. At first blush this evidence bears a strong resemblance to Earl v. State, supra, in which a nondisclosed statement of Earl affirming other inculpatory statements attributed to him was introduced to the surprise of the defendant. The prejudice was clear as Earl had denied the statements earlier on direct examination. Hence, his credibility as a witness was destroyed. In addition, a hearing on the voluntariness and admissibility of the undisclosed statement was not held.
Agent Gunnarson and the appellant gave different versions of appellant’s words: Gunnarson alleging appel lant said “It is lucky you caught me short. Somebody should have been hurt.” [R. 3823) Appellant alleges he said “I am glad nobody got hurt.” At best, these versions are indistinct and susceptible of similar inferences; at worst they are equivocal and we consider the harm insufficient to overturn the judgment. They are, after all, essentially of the same effect as those Ms. Caves attributed to the appellant in her testimony. It was in the trial court’s discretion to suppress Gunnarson’s testimony for nondisclosure, Rule 19.7 (a); Brenneman and King v. State, 264 Ark. 460, 573 S. W. 2d 47 (1978) — and reversal is not required absent a showing of prejudice. Earl v. State, supra; Dupree v. State, supra. We find the likelihood of prejudice or abuse of discretion insufficient to require reversal.
C.
Appellant argues the State’s failure to provide current addresses for Debra Whisenhunt, Helen Vandandingham, Roger Whisenhunt and Bob Wise is ground for reversal. The record reveals Helen Vandandingham, the defense’s key witness, did indeed testify. Roger Whisenhunt was contacted a week before the end of trial by the defense but did not testify. The Whisenhunts divorced and Debra moved out of the state and could not be found by either party. Bob Wise, who had picked out appellant’s picture as driving the Travel-all, was never found. The State elicited testimony that he picked the appellant from a photograph. Appellant produced testimony from one witness that Wise’s description of appellant during the photo identification was doubtful and more descriptive of Carl Don McLaughlin. The State’s case implicates both men, Renton and McLaughlin, as being involved in this criminal episode and thus the description of McLaughlin as the driver of the Travel-all the day before the crime could be of no real significance. Consequently, the appellant has not shown the prejudice necessary for reversal.
IV.
Appellant contends that Exhibit 25 was hearsay and not the best evidence and his objection to its introduction should have been sustained. The exhibit is a handwritten copy of entries on the Springdale police radio log made by Officer Olin Stepp early on the morning of December 21. The log was later destroyed. We find no merit to the contention. The best evidence rule limits the evidentiary use of secondary evidence where the original itself is not unavailable. But here it is undisputed that the original of the radio log was destroyed, as appellant’s objection reflects: “Your Honor, I am going to object on best evidence grounds since the original has been destroyed.” [T. 3522] Rule 1004, Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001 (Repl. 1979), permits the introduction of other evidence of the contents of writings, records or photographs where the original has been lost or destroyed or is in the hands of the opposing side and cannot be obtained. Beyond that, the exhibit simply duplicates identical evidence from numerous other sources on undisputed points, i.e. that Officer Hussey stopped a Travel-all near the city limits at 3:49 a.m. and that five minutes later Officer John Dickens reported that he could not find Officer Hussey at the scene. See Brenneman and King v. State, supra.
V.
Appellant contends that Ms. Alice Bradshaw, a prospective juror, should have been struck for cause rather than by a peremptory challenge of the defense. During voir dire examination Ms. Bradshaw acknowledged having read a news article of the previous day featuring the trial and referring to appellant as one of the FBI’s ten “most wanted” individuals. In the course of the inquiry the trial judge interjected to say that “[bjefore anybody can be arrested there must be what is called probable cause. The prosecuting attorney has to make probable cause, and from that a person is arrested. It does not mean that he is guilty at all. You have to know they do not go out there arbitrarily and arrest somebody. Nobody can be arrested unless there is probable cause.”
Whether the comment was inappropriate to voir dire is debatable, but it was, at most, inconsequential and any possible harm was offset by the words “[i]t does not mean that he is guilty at all.” Ms. Bradshaw’s responses during the voir dire interview give no indication that she was biased or would judge the case on anything other than the evidence. We find no error in the refusal to excuse Ms. Bradshaw for cause. Rowe v. State, 224 Ark. 671, 275 S.W. 2d 887 (1955).
VI.
The final point for reversal is that because Judge Mahlon Gibson acted to qualify some indeterminate part of the jury panel after the case was assigned to a special judge a reversal is required on jurisdictional grounds. We disagree. There is no evidence whatever that Judge Gibson took any part in these proceedings. There is merely a reference by Judge Cummings at a pretrial conference that some part of the j ury panel had been qualified by Judge Gibson pursuant to Ark. Stat. Ann. §§ 39-101 — 39-116, and that others had been excused. These sections of the statutes pertain to general qualifications of j urors and provide specific exemptions from service in the case of physicians, firemen, ministers, practicing attorneys and others. The qualifying process under this chapter of the code is general and perfunctory and does not relate to specific cases in any fashion. Further, counsel for the defendant gave affirmative approval to the proceedings: (T. 1222)
THE COURT: Now, I have talked to Judge Jameson and he has already qualified his jurors. The term started July the 1st.
MR. HORAN: Right.
THE COURT: New panel, and he has already qualified his jürors, I think yesterday, I believe. I think he had sixty-eight or sixty-nine (68-69) Put of a hundred and fifty (150), and Mahlon Gibson will be here Monday to qualify his panel. Their names are already drawn and subpoenaed to be here at 9:00 o’clock, so he will go ahead and impanel his and excuse whoever he has to for cause, sickness. So I will start in on his and then Jameson’s will be available Tuesday morning if we exhaust those in this division. Is there any objection to that?
MR. HORAN: No objection.
Evidently, several members of the panel had been excused by Judge Gibson but were examined by Judge Cummings as to their reasons for asking excusal, but before doing so Judge Cummings asked counsel for both the prosecution and the defense: (T. 1337)
THE COURT:____Any objections to my excusing any of these people?
MR. HORAN: No, your Honor.
MR. SMITH: No, your Honor.
Appellant argues that under Adams v. State, 269 Ark. 548, 601 S.W. 2d 881 (1980), objections to proceedings of this type are unnecessary. But there is a vast difference between the two situations. In Adams, the presiding judge actively participated in a proceeding including accepting guilty pleas to two felony charges where he and the attorney for the State were related within the degree proscribed by Canon 3C (1) (d) (ii) of the Code of Judicial Conduct. We held that under the wording of the Canon the judge should take the initiative in recusing himself, rather than placing that burden on the litigant. Nothing in Adams suggests that any jurisdictional flaw occurred in connection with this point.
Finally, this is an immense record — 21 volumes and 4,600 pages. We have studied the objections before the trial court noted by counsel for appellant and appellee and examined the record for other objections not argued on appeal and we find no prejudicial error.
The judgment is affirmed.
See Cassell v. State, 273 Ark. 59, 616 S.W. 2d 485 (1981). | [
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Richard B. Adkisson, Chief Justice.
Appellee, Tires, Tubes, Wheels, Inc., brought suit on account and requested appointment of a receiver to preserve the assets of appellants’ business.
After finding that appellants failed to comply with the Uniform Commercial Code — Bulk Transfers, Ark. Stat. Ann. §§ 85-6-101 — 109 (Add. 1961), the Ashley County Chancery Court entered an order appointing a receiver pendente lite as authorized by Ark. Stat. Ann. § 36-112 (Repl. 1962). This is an interlocutory appeal from that order. We affirm.
The first issue we consider is whether the trial court was correct in finding a violation of the UCC Bulk Transfers Act. Section 85-6-102 (Add. 1961) defines Bulk Transfer:
(1) A ‘bulk transfer’ is any transfer in bulk and not in the ordinary course of the transferor’s business of a major part of the materials, supplies, merchandise or other inventory of an enterprise. ...
Ark. Stat. Ann. § 85-6-104 requires that the transferor list all creditors and Ark. Stat. Ann. § 85-6-105 requires ten days notice prior to the date of sale be given to all creditors.
Between August and December, 1980, appellee sold on open account $76,718.64 worth of tires (as inventory) to appellant, Contractors Tire and Supply, owned by appellant, Phillips. In January, 1981, these appellants transferred all of the business inventory, a truck, and accounts receiv able to appellant Johnson, who renamed the business “Johnson Tire and Supply.” Appellants admit that appellee was not given notice of the transfer as required by Ark. Stat. Ann. § 85-6-105, and that they did not list the creditors as required by Ark. Stat. Ann. § 85-6-104. The chancellor’s findings that this was a bulk transfer and that there was a violation of the Act is clearly correct.
Appellants also argue that the Bulk Transfer provisions were not violated because appellee is not a “creditor” within the meaning of the Act. However, appellants did not argue this at trial and we cannot consider issues raised for the first time on appeal. Banks v. Jones, 239 Ark. 396, 390 S.W. 2d 108 (1965).
Appellants argue that it was error to appoint a receiver pendente lite as a remedy for a violation of the Bulk Transfers law because the requirements of Ark. Stat. Ann. § 36-112 were not met. This statute provides:
In an action ... by a creditor to subject any property or fund to his claim,... on the application of plaintiff or of any party whose right to or interest in the property or fund or the proceeds thereof, is probable, and where it is shown that the property or fund is in danger of being lost, removed, or materially injured, the court may appoint a receiver to take charge thereof during the pendency of the action. . . .
Since affirmative defenses of usury and a violation of the Wingo Act were raised, appellants assert that a receiver should not have been appointed because appellee’s right to recovery is not probable. The chancellor made a finding that violation of the Wingo Act was not applicable since the sale was in interstate commerce. No finding was made regarding the usury question, but the invoices would seem to indicate that appellee sold its merchandise from its company offices located in Mississippi. The trial court is not required to resolve all issues going to the merits before appointing a receiver. In this case usury is a matter which the appellants must prove at the trial on the merits. In any event, this is not a case where it is immediately clear whether or not the transaction is usurious. Under these circumstances it is not necessary that the trial court resolve this issue before appointing a receiver.
In this case the affidavit of account and the statements and invoices indicate that appellee’s claim is probable. The fact that appellant Phillips transferred all of his inventory and most of the business’s assets to appellant Johnson shows that the items of inventory recently sold by appellee are in danger of being lost, removed, or materially altered, particularly where the record reflects that $31,000 worth of inventory was purchased by Phillips in December, 1980, yet only $11,000 inventory was transferred to Johnson in January, 1981. Also, the trial court properly considered that at the time of the transfer the business had numerous creditors and that all were paid except appellee.
This statute providing for the appointment of a receiver is not mandatory but leaves it to the sound discretion of the court; where, as here, there is no evidence in the record showing that the trial court abused its discretion, its actions will not be disturbed. See Federal Land Bank v. Duffey, 193 Ark. 126, 97 S.W. 2d 908 (1936).
We do not reach the issue of whether a violation of the Bulk Transfers law alone would j ustify the appointment of a receiver pendente lite. But, when the Bulk Transfers law has been violated and when the requirements of Ark. Stat. Ann. § 36-112 authorizing the appointment of a receiver pendente lite are met, it is not error for a chancery court to appoint a receiver. See Bornsteine v. Wm. R. Moore Dry Goods Co., 226 Ark. 746, 294 S.W. 2d 52 (1956); Chowning, Bulk Transfers: Art. VI, 16 Ark. L. Rev. 71 (1962).
Appellants also attempt to appeal the chancery court’s refusal to transfer the case to circuit court. We have consistently held such an order is not appealable before final judgment:
[A]n order transferring a cause from circuit to chancery ... is not appealable, even though it affects a substantial right, because it does not determine or discontinue the action or prevent an appealable judgment, but only transfers the cause to another forum where it continues until disposed of.
Ark. S & L v. Corning S & L, 252 Ark. 264, 478 S.W. 2d 431 (1972); Womack v. Conner, 74 Ark. 352, 85 S.W. 783 (1905); Johnson v. Plant, 207 Ark. 871, 181 S.W. 2d 240 (1944); Vaughan v. Hill, 154 Ark. 528, 242 S.W. 2d 826 (1922).
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Steele Hays, Justice.
Appellant was charged with the crimes of arson and first degree murder following a fire at a Little Rock rooming house resulting in the death of one of the occupants. The jury’s verdict acquitted him of the charge of murder but convicted him of arson, imposing a sentence of 10 years imprisonment with a recommendation of leniency. On appeal he raises a single issue: whether he can be convicted of arson and acquitted of murder where the offenses arise out of the same conduct. We affirm the judgment on the sentence.
Appellant contends that, by inference, Ark. Stat. Ann. § 41-105 (1) (a) (Repl. 1977) prohibits his conviction of the lesser included offense of arson where he has been acquitted of the greater offense of first degree murder. We find no merit to this contention.
Ark. Stat. Ann. § 41-105 (1) (a) (Repl. 1977) provides:
When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense. He may not, however, be convicted of more than one offense if:
(a) one offense is included in the other, as defined in subsection (2);
Subsection (2) provides:
A defendant may be convicted of one offense included in another offense with which he is charged. An offense is so included if:
(a) it is established by proof of the same or less than all the elements required to establish the commission of the offense charged; . . .
The appellant has been convicted of only one offense — arson. Section 41-105 (1) (a) only prohibits two convictions where one offense is included in another and, therefore, his conviction of a single offense, the lesser one, is not in violation of the statute.
Appellant relies on Swaite v. State, 272 Ark. 128, 612 S.W. 2d 307 (1981), for the proposition that when a person is acquitted of the greater offense which necessarily includes a lesser offense as an element, then acquittal is required on the lesser offense. This reliance is misplaced.
In Swaite there were convictions of both the greater and lesser offenses arising from the same conduct and we held that under § 41-105 conviction of the lesser offense must be set aside. Unlike Swaite, the present case involves a single conviction. We disagree with the argument that an acquittal of the murder charge was dispositive of the arson charge. The first degree murder charge required proof that appellant committed arson and in the course of and in furtherance of that crime caused the death of a person “under circumstances manifesting extreme indifference to the value of human life.” In this case arson was one of the elements of proof necessary to find appellant guilty of first degree murder. It may be that the jury found the death did not result from “circumstances manifesting an extreme indifference to the value of human life,” or simply chose not to convict on that charge for reasons not apparent in the record. Whatever may be said of that, we find no inconsistency in the verdicts as appellant contends.
Appellant argues under authority of Turner v. Arkansas, 407 U.S. 366 (1972), the arson conviction violates the constitutional protection against double jeopardy. The cases are distinguishable. In Turner the defendant was charged with murder in the course of a robbery and acquitted. Later he was tried for robbery and convicted. The United States Supreme Court reversed, holding the state is collaterally estopped from relitigadng those issues already resolved in the defendant’s favor at the murder trial since that determination made his conviction on the robbery charge a logical impossibility. In the present case the acquittal of first degree murder and the conviction of arson are in a single prosecution and are neither illogical nor inconsistent. Appellant has cited no case in which the Fifth Amendment protection against double jeopardy has been extended to cases where all the issues are resolved in one trial resulting in one conviction. We cannot perceive how in a single trial an accused could be said to be in jeopardy twice from but a single conviction.
Finally, appellant points out that the trial court disregarded the jury’s recommendation of leniency by requiring the appellant to serve one-third of his sentence before becoming eligible for parole. But jury recommendations are advisory only and are not binding on the trial judge. Lingo v. State, 271 Ark. 776, 610 S.W. 2d 580 (1981); Tucker v. State, 248 Ark. 979, 455 S.W. 2d 888 (1970). We find no abuse of discretion.
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Richard B. Adkisson, Chief Justice.
By order of December 27,1979, the Cross County Circuit Court established the L’Anguille Improvement District No. 1, hereinafter District, which included parts of Woodruff, Cross, St. Francis, and Lee Counties. Prior notice of the hearing was given by publication for two weeks in a newspaper having general circulation in each county of the District. It is admitted that all proceedings were conducted in accordance with the provisions of Ark. Stat. Ann. § 21-1001 —- 1002 (Repl. 1980) and that appellant did not appeal the order creating the District within 30 days as required by § 21-1002.
On March 27,1980, appellant filed a motion to set aside the order forming the District on the grounds that the notice by publication permitted by Ark. Stat. Ann. § 21-1001 (Repl. 1968) was unconstitutional as a violation of his right to due process. This appeal is from the court’s order denying this motion. We affirm.
The District encompassed 350,000 acres in Woodruff, Cross, St. Francis, and Lee Counties, Arkansas. Appellant is a partnership owned in part by Edward P. Russell, a resident of Memphis, Tennessee. Appellant owns 240 acres which is part of 124,192.93 acres included within the District in St. Francis County.
After a petition for formation of the District was filed, notice of the hearing on the petition was given pursuant to Ark. Stat. Ann. § 21-1001:
Upon the filing of said petition, the petition shall be presented to the Judge of the Circuit Court, either in term or vacation, and the Court shall make an Order directing the Clerk of the Circuit Court in which the petition is filed to give notice by publication for two (2) weeks in some newspaper or newspapers published and having a general circulation in each of the Counties embraced within the proposed boundaries of said district, calling upon all persons owning property therein to appear before the Court on some day to be fixed by the Court to show cause in favor of or against the establishment of said district.
An appeal from an order granting the petition is provided by Ark. Stat. Ann. § 21-1002:
The Order of the Circuit Court establishing the said district shall have all of the force and effect of a judgment. Any owner of real property within the district may appeal from said judgment within thirty (30) days after the same has been made, but if no appeal is taken within that time, such judgment authorizing and creating the district shall be deemed conclusive and binding upon all of the property within the bounds of the district and upon the owners thereof; and any owner of property in the district may within a like manner appeal from any order refusing to establish such district.
Evidence presented at the hearing on appellant’s motion reflects that tax notices on this property for the past few years had been sent to Cypress Creek Farms, c/o Edward P. Russell, Union Planters Bank Building, Memphis, Tennessee, 38103, and that appellant had no actual notice of the proceeding regarding the formation of the District until informed of its existence on March 25, 1980. Appellant acknowledges that notice was given in accordance with the statutory provisions for notice in § 21-1001, but argues that such notice is void and unconstitutional as to him for failure to comply with the due process clause of the Fourteenth Amendment. Appellant argues that he had involved substantial property rights and due process required that he be given notice by certified mail, which he argues was the only means available that could reasonably convey to him the information regarding the formation of the District.
The hearing to establish the District is the only opportunity a landowner has to contest the necessity of the inclusion of his land in the District. The land included will then be subject to having benefits or damages assessed. Ark. Stat. Ann. § 21-1005 (Repl. 1968). Therefore, substantial property rights of appellant were involved at the hearing to establish the District, and before such right could be affected, he was entitled to notice and opportunity for hearing appropriate to the nature of the case. Mullane v. Central Hanover B. & T. Co., 339 U.S. 306 (1950).
Although appellant’s substantial property rights were involved at the hearing on the formation of the District, appellant is not necessarily entitled to notice by mail. The United States Supreme Court stated in Mullane that it “has not hesitated to approve or resort to publication as a customary substitution in another class of cases where it is not reasonably possible or practical to give more adequate warning.” Statutes are presumed to be constitutional and there is no evidence of record that the statutory notice was not appropriate to the nature and circumstances of this case. In St. Francis County there was involved in the District 124,192.93 acres, of which 240 acres were owned by appellant. The record does not reflect the number of persons owning the various parcels of land within the District but even if a small town was included in the District, the number of owners requiring notice by certified mail would likely be in the thousands. In any event, appellant has not shown that the statute providing for notice by publication is unconstitutional. Therefore, we are unable to say that the trial court’s decision that the statutory notice was sufficient is clearly erroneous.
Questions regarding the adequacy of the notice of assessment of benefits and damages are not before this Court in this case. Also not before the Court is the adequacy of notice to bar a suit for damages. Our decision is limited to the sufficiency of the notice in establishing the District.
Affirmed.
George Rose Smith, J., concurs.
Hickman and Purtle, JJ., dissent. | [
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George Rose Smith, justice.
The appellant, Rolf Kaestel, age 29, along with two other men, Terry Spitler, 22, and Selid Holt, 20, and two women, Alice Wallace, 16, and Linda Wright, 19, was charged with aggravated robbery committed at Señor Bob’s Taco Hut in Fort Smith on February 15, 1981, and with being an habitual criminal. Kaestel was tried separately, found guilty, and sentenced to the maximum punishment of life imprisonment and a $15,000 fine. For reversal he questions the trial court’s refusal to suppress evidence obtained by a warrantless search, the legality of the identification procedure, the sufficiency of the evidence, the severity of the sentence, and the admissibility of the State’s proof of his previous convictions.
Kaestel, despite the availability of consulting counsel appointed at his request, chose to try his own case and has prepared his own abstract and briefs on appeal. He did not testify either on the motion to suppress or at the trial. All four of his codefendants testified for the State.
Except for minor discrepancies that Kaestel overemphasizes, the testimony is singularly free from dispute. Just before the robbery the five defendants were riding together at about 7:00 p.m., after dark, in Fort Smith in a large green four-door Dodge sedan owned by Linda Wright and licensed to her in Iowa. Kaestel, decidedly the oldest member of the group and apparently its leader, suggested the robbery of the Taco Hut, entered the Hut with Spider, exhibited a (toy) gun to the clerk, Dennis Schleuterman, and took about $274 in bills. When the robbers left, Schleuterman called the police, who arrived within about two minutes. Schleuterman gave a detailed description of each robber, including approximate age, height, and weight, color and length of hair, and nature and color of facial hair. Both men were white.
Wayne Redden, a citizen living up the block from the Taco Hut, had noticed that a person was sitting in the driver’s seat of a large green car parked across the street from his home. In a few moments a white male ran up and jumped in the car. After the car had started away it stopped to allow another white male to run up and get in. The car then drove off. When the police arrived, Redden went out and told them what he had seen. Schleuterman’s description of the robbers and Redden’s description of the car were broadcast by radio.
When the two robbers and their companions drove away, Kaestel and Spitler, at Kaestel’s suggestion, changed their clothes to avoid detection. Within a few minutes the group stopped at a Roadrunner gas station about three miles from the Taco Hut. They parked in an unusual way, by driving in, turning around, and backing up to the darker side of the station, away from the gas pumps. Kaestel went in the Roadrunner store. Robert Hamilton, a citizen living nearby, had heard the police broadcast, noticed the peculiar parking maneuver, connected the car with the robbery, and called the police, who arrived quickly. We note that the alert actions of the two citizens, Redden and Hamilton, were essential in the apprehension of the robbers.
The five suspects at first cooperated with the police by producing their identification. They sought to avoid suspicion by saying they had just dropped off two hitchhikers. The police, however, searched the car and found on the rear floorboard a jacket like the one described by Schleuterman and a realistic-looking plastic toy pistol under the jacket. The group were then taken to the scene of the robbery, where Schleuterman positively identified Kaestel and somewhat less positively identified Spitler. When the police searched the police vehicle in which the three men had been transported from the Roadrunner to the Taco Hut they found $179 hidden under the front seat. There was proof that no one else could have secreted the money there. Kaestel had $63 in his wallet.
We find no merit in any of Kaestel’s arguments for reversal. The trial court’s denial of the motion to suppress proof about the j acket and toy pis tol found in the car was not error, for two reasons. First, the articles were properly seized under the automobile exception to the exclusionary rule. Within that exception officers must have reasonable cause to search a vehicle. Chambers v. Maroney, 399 U.S. 42 (1970); Carroll v. United States, 267 U.S. 132 (1925); Tillman v. State, 271 Ark. 552, 556-561, 609 S.W. 2d 340 (1980). Here the vehicle corresponded to Redden’s report, which implicated it in the robbery. It contained three males, as indicated by Redden. Its peculiar maneuver at the Roadrunner aroused the suspicion of both Hamilton and the police. Finally, Schleuterman’s description of the two men was unusually complete. Kaestel says in his brief that two of the detainees “only vaguely fit the description of the suspects,” but that statement is not shown by the abstract of the record to have any basis. Both the trial judge and the jury had the opportunity to see Kaestel and Spitler and to know how accurate the descriptions were. We have no similar basis for comparison. There were also present the required exigent circumstances, in view of Mrs. Wright’s possible right to insist upon driving her vehicle away and of the difficulty of obtaining a search warrant quickly at night. Hence the warrantless search was proper. Chambers, supra.
Second, the correctness of the trial court’s ruling upon Kaestel’s motion to. suppress is actually immaterial, for the State never sought to prove the search of the car or the discovery of the jacket and pistol. To the contrary, the State rested its case after calling only six witnesses: Schleuterman to prove the actual robbery and identify the robbers; the four codefendants, to confirm Kaestel’s participation in the crime; and Redden, to corroborate the accomplices’ testimony about the group’s flight from the scene. All the testimony about what happened at the Roadrunner and about the search of the car was brought out by Kaestel himself, by cross-examining the State’s witnesses and by calling the investigating officers to testify and to produce their investigation reports. Kaestel cannot base a claim of reversible error upon testimony which he himself chose to introduce. Strode v. State, 259 Ark. 859, 537 S.W. 2d 162 (1976).
Kaestel argues that the identification procedure used by the police was unduly suggestive and prejudicial, in that (1) he was first identified by Schleuterman in a dim light, after Kaestel had been brought back from the Roadrunner, and (2) he should have been placed in a lineup. We perceive no unfairness in the procedure. To the contrary, Schleuterman’s identification meets various tests that have been enumerated: At the time of the crime he had the opportunity to look at Kaestel in a good light at close range; his detailed description of Kaestel is not shown to be inaccurate; only minutes elapsed between the crime and Schleu ter man’s identification; and Schleuterman has never wavered in his certainty about Kaestel’s identity. See Reed v. State, 271 Ark. 526, 541, 609 S.W. 2d 898 (1980). Moreover, the fundamental question is whether the pretrial identification so tainted Schleuterman’s in-court testimony as to give rise to a substantial likelihood of misidentification. Here the possibility of misidentification is nonexistent, for Schleuterman’s identification is confirmed beyond a doubt by the testimony of Kaestel’s codefendants.
In view of the facts we have already stated, Kaestel’s arguments that the evidence does not support the verdict and that the testimony of his accomplices was not corroborated are not of sufficient merit to warrant discussion. As to the severity of the sentence, except in capital cases we do not review the severity of a sentence within the lawful maximum and not affected by error in the trial, that determination having been committed to the jury by the Constitution and statutes. Osborne v. State, 237 Ark. 5, 170, 371 S.W. 2d 518 (1963). Finally, Kaestel agreed that he had been convicted of robbery in New Mexico, and the proof of his two felony convictions in Alabama was supported by photographs taken in Alabama and by fingerprints taken there and matched by later ones taken in Arkansas. We find no substantial defect in the State’s prima facie proof of previous convictions, the evidence being sufficient if it satisfies the jury beyond a reasonable doubt. Ark. Stat. Ann. § 41-1003 (Repl. 1977). (The case was tried before the effective date of Act 252 of 1981.)
We have reviewed all objections brought to our attention, whether argued or not, as is our practice in life imprisonment cases. We are convinced that Kaestel had in fact no defense to the charge and that he received a completely fair trial, free from prejudicial error.
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George Rose Smith, Justice.
This is an attempt by the State Hospital to collect accumulated charges for the maintenance of one of its patients. In 1971 Inez Boxer, charged with first-degree murder, was committed by the circuit court to the State Hospital for 30 days’ observation. Upon the hospital staff’s finding that Mrs. Boxer was insane, the circuit court permanently committed her to the State Hospital on April 26, 1971. She is still a patient there. The murder charge was dismissed by the circuit court on April 30, 1971. In 1972 the Garland Probate Court found Mrs. Boxer to be incompetent and appointed a guardian for her estate. The appellee is the present guardian. His 1979 accounting valued his ward’s estate at $125,190.45.
The State Hospital made no attempt to collect monthly charges for Mrs. Boxer’s maintenance until January 10, 1980, when it filed the present claim against the guardian for $95,094.50, representing maintenance charges from April 26, 1971, through October 31, 1979. After a hearing the probate court denied the claim on two grounds: First, under the statutes the Hospital has no authority to collect maintenance charges for persons permanently committed by a circuit court upon a finding of insanity in a criminal proceeding. Second, when the Hospital filed its claim in January, 1980, the only statute that might arguably authorize the collection of such charges had been inadvertently repealed by Act 817 of 1979. This appeal is from the denial of the claim. We agree with the trial court on both counts.
On the first ground our discussion of the statutes must start with Act 433 of 1971, which as its title indicated was a comprehensive revision and codification of the laws relating to the State Hospital and to mental health. Chapter 3 of the act codified the law governing admissions to the Hospital and the collection of hospital costs. Section 1 of Chapter 3 provided that any resident of the state who became mentally ill should be admitted to the State Hospital for diagnosis, care, and treatment. Ark. Stat. Ann. § 59-401 (Repl. 1971). That section referred to patients committed by the probate courts, but it made no reference whatever to patients committed by the circuit courts in criminal proceedings. Sections 2 and 3 provided that if a patient admitted to the Hospital was found to possess an estate more than sufficient for the support of his or her dependents (Mrs. Boxer’s two grown sons are not dependent on her), the Business Office of the hospital should render monthly statements of the hospital’s charges and collect them from the patient’s estate. §§ 59-402 and -403. Sections 11 through 14 of Chapter 3 specified the procedure for the commitment, continued confinement, and discharge of persons charged with a crime, but there was no indication that such persons were to be charged for their maintenance. §§ 59-411 through -414. Chapter 6 of this comprehensive act contained detailed provisions for the circuit court’s commitment of persons charged with a crime, but the only reference to possible liability for their maintenance was in Section 7 of Chapter 6, which required the county of the committed person’s residence to pay the State Hospital’s charges for not more than 90 days’ maintenance. § 43-1301 (Repl. 1977). Again there was no reference to liability of the patient or his estate.
Act 433 was a comprehensive revision of the law and must therefore be read as a whole. It contained separate provisions governing civil commitments on the one hand and criminal commitments on the other. Only the civil commitments, governed by Chapter 3, contemplated private liability for the patient’s maintenance. There was no similar provision in Chapter 6, governing criminal commitments, the only pertinent provision being that which required the county to bear the expense for the first 90 days. Quite possibly the legislature, had the issue been presented to it, might have required reimbursement from criminally committed patients, but the act is silent on that point. Inasmuch as a criminal commitment is often involuntary and certainly protects the public as well as the person to be confined, the legislature may have decided that the public should bear the expense.
The Hospital’s argument on this first issue is not supported either by Section 4 of Chapter 3 of Act 433 (§ 59-404) or by our decision in Ark. State Hospital v. Kestle, 236 Ark. 5, 364 S.W. 2d 804 (1963). Section 4 dealt only with the responsibility of persons jointly liable with the patient, which is not the situation before us. In fact, that section contained an explicit proviso that it should not be construed to require any person to pay for the hospitalization of a person committed to the State Hospital by the circuit court for a determination of sanity in a criminal proceeding, which is precisely the manner in which Mrs. Boxer’s confinement originated.
In Kestle we merely held that the State failed to meet its burden of proving joint liability under an earlier statute, because there was no proof that the patient had any estate at all. The State Hospital, in its third point for reversal listed in the Kestle opinion, made essentially the same argument now presented, but we found it unnecessary to consider that issue.
The second ground for the trial court’s decision is the 1979 repeal of the first 14 sections of Chapter 3 of Act 433, which included the entire authorization for the collection of the hospital’s charges in cases of civil commitment. The repealing statute, Act 817 of 1979, took effect on April 10, 1979. By Acts 34 and 61 of 1980 the legislature found that the repeal had been inadvertent, re-enacted Sections 2 and 3 of Chapter 3 of Act 433, and made the re-enactment retroactive to April 10,1979. Ark. Stat. Ann.§§ 59-1425 and-1426 (Supp. 1981). The Hospital argues that the 1980 re-enactment nullified the effect of the 1979 repeal and there is therefore a continuing right in the Hospital to collect its charges for Mrs. Boxer’s maintenance ever since 1971.
We are not persuaded by this argument. It does not appear that the hospital’s Business Office made any investigation of Mrs. Boxer’s estate or any computation of maintenance charges until just before the present claim was presented on January 10, 1980. That was during the interim when the statutes had not been re-enacted; so there was not even a colorable statutory basis for the collection of charges from patients committed in criminal proceedings. A vested right could not arise at a time when there was no possibility of enforcing the claim under existing law. Moreover, the assertion of the vested right must ultimately rest upon the Fourteenth Amendment, with its prohibition against the State’s taking of property without due process of law. The State Hospital, however, was created by the State as a state agency. An agency or political subdivision of the State cannot invoke the protection of the Fourteenth Amendment against the State itself. Alexander Milburn Co. v. Davis-Bournonville, 270 U.S. 390 (1926); City of Trenton v. New Jersey, 262 U.S. 182 (1923); City of New York v. Richardson, 473 F. 2d 923 (2d Cir. 1973), cert. den. 412 U.S. 950 (1973). The Hospital’s claim to a vested right cannot be sustained.
Affirmed.
Adkisson, C.J., and Hickman and Hays, JJ., dissent. | [
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George Rose Smith, Justice.
On August 29, 1977, the appellant shot and killed the Dermott Chief of Police in the course of a struggle between the two men for possession of the officer’s pistol. The appellant was charged with capital murder. After the first trial a judgment imposing the death penalty was reversed for errors prejudicial to the defendant. Westbrook v. State, 265 Ark. 736, 580 S.W. 2d 702 (1979). The venue was changed to Ashley county. This appeal comes from a second trial at which the appellant was again found guilty of capital murder and was sentenced to life imprisonment without parole. We find no prejudicial error in the four points that are argued or elsewhere in the abstracts and briefs submitted by counsel.
First, it is argued that the court should have granted the defendant’s motion to quash the jury panel for racial discrimination in its selection. There was actually no positive proof of the percentage of black citizens in the county, nor of an actual underrepresentation of blacks on the jury panel, nor of any discrimination by the jury commissioners in the selection of the jury panel. It is now argued that various sections of the statutes, especially Ark. Stat. Ann. § 39-102 (Supp. 1981), afford jury commissioners a possible means of discriminating against blacks in the selection process. Even so, the statutes are not unconstitutional on their facé, because they can be put into effect without any racial discrimination whatever. Waters & Adams v. State, 271 Ark. 33, 607 S.W. 2d 336 (1980). Here the essential fact of actual, purposeful discrimination has not been shown.
Second, it is again urged that the defendant was entitled to the appointment of an independent psychiatrist at public expense. That contention was rejected on the first appeal and is barred by the law of the case. Moreover, the defendant was twice sent to the State Hospital for examination, with findings that he was without psychosis, and expert witnesses gave testimony favorable to him on the issue of his mental capacity.
Third, on a related point it is argued that the trial judge, after a hearing in chambers, should have acquitted the defendant on the ground of mental disease or defect. Ark. Stat. Ann. § 41-609 (Repl. 1977). The testimony was in decided conflict with respect to the defendant’s mental capacity. The trial judge properly refused to take the issue from the jury, to whom it was later submitted at the trial. As the Commentary to Section 41-609 of the Criminal Code points out, the statute permits the trial judge to acquit the defendant “in cases of extreme mental disease or defect where the lack of responsibility on the part of the defendant is clear,” it being contemplated that the defendant will then be hospitalized. That was not the situation in this case. Quite the contrary, the trial judge would have been wrong if he had acquitted the appellant upon the conflicting proof presented at the hearing.
Fourth, it is argued that the trial judge, in addition to giving AMCI 4009 on the issue of mental disease or defect, should also have given an instruction under Section 41-602 with regard to the defendant’s possession of the kind of culpable mental state required for the commission of the offense charged. That same contention was rejected in Robinson v. State, 269 Ark. 90, 598 S.W. 2d 421 (1980). Also, the defense failed to offer an instruction that would have submitted the issue to the jury. Hence there is now no basis for complaint. Hays v. State, 219 Ark. 301, 241 S.W. 2d 266 (1951).
Affirmed. | [
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George Rose Smith, Justice.
The question is this: When the widowed mother of an infant child remarries and later joins her second husband in obtaining a probate court decree by which he adopts the child, are the paternal grandparents of the child still entitled to obtain visitation privileges by a chancery court proceeding? The chancellor, recognizing the binding effect of the Court of Appeals decision in Hensley v. Wist, 270 Ark. 1004, 607 S.W. 2d 80 (Ark. App. 1980), answered the question in the affirmative and continued in force the existing visitation privileges of the appellees. We cannot agree with the Hensley decision and must therefore deny the grandparents’ claim to visitation.
The facts are not in dispute. The child, Dana, was born to Danny and Bonnie Wallace in 1972. Bonnie later sued for divorce, but her husband was killed in a traffic accident in 1974. Danny’s parents, the appellees, had a friendly relationship with Bonnie and with their granddaughter until a dispute arose in 1979, apparently after Bonnie had married Clyde Wilson. The Wallaces then brought a suit in chancery court against Bonnie and obtained a consent decree recognizing specified visitation privileges. A 1975 statute permits the maintenance of such a suit by grandparents whose own child is deceased. Ark. Stat. Ann. § 57-135 (Supp. 1981).
In July, 1980, the Bradley Probate Court entered a final decree by which Clyde Wilson adopted Dana, whose name was changed to Dana Lynette Wilson. The Wallaces then brought in Clyde Wilson as a defendant in the chancery court case and had the Wilsons cited for contempt of court for their refusal to recognize the Wallaces’ visitation privileges. After a hearing the chancellor denied the Wilsons’ motion for summary judgment and reaffirmed the Wallaces’ visitation privileges, with clauses in the decree prohibiting the Wallaces from ever referring to their deceased son in the child’s presence, from ever saying that Dana had any father except Clyde Wilson, and from ever referring to Dana by any surname except Wilson.
Our disagreement with the Court of Appeals decision in Hensley rests squarely on a 1977 statute which amended the adoption law to provide for the first time that the effect of an adoption decree, except with respect to a spouse of the petitioner and relatives of that spouse (here Bonnie and her relatives), is “to terminate all legal relationships between the adopted individual and his relatives, including his natural parents, so that the adopted individual thereafter is a stranger to his former relatives for all purposes.” (Our italics.) Ark. Stat. Ann. § 56-215 (Supp. 1981). Although the italicized language may seem insensitive with respect to the adopted child’s blood relatives, who find themselves suddenly put in the position of strangers, the difficulties which the statute was meant to overcome are illustrated by the provisions of the order now before us, with its awkward attempts to conceal the adoption from the child.
Such difficulties are unlikely when all those concerned remain on amicable terms with one another, but problems and tensions must be faced and resolved when bitterness arises, as here. It was unquestionably within the province of the legislature to decide that the reasons favoring the solidarity of the adoptive family outweigh those favoring grandparents and other blood kin who are related to the child through the deceased parent. The final decision as to the state’s policy lay with the legislature, not with the courts. We have already recognized the force of the 1977 statute in two earlier cases. Poe v. Case, 263 Ark. 488, 565 S.W. 2d 612 (1978); Quarles v. French, 272 Ark. 51, 611 S.W. 2d 757 (1981). We adhere to our position and accordingly overrule the decision of the Court of Appeals in Hensley, which in effect applied our former law as if the 1977 statute did not exist.
Reversed. | [
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Per Curiam.
The plaintiffs, citizens and taxpayers of this state, brought this original action in the Supreme Court of Arkansas pursuant to Amendment 45 § 5, which amends Art. 8, as amended by Amendment 23, of the Constitution of Arkansas (1874). The action is against Frank White, Paul Riviere and Steve Clark in their respective capacities of Governor, Secretary of State and Attorney General, who constitute the membership of the Board of Apportionment. The complaint challenged the composition of Senate District 7 as approved by the Board of Apportionment with the Governor dissenting. Plaintiffs allege the proposed boundary lines of District 7 will result in violating their substantive due process rights and equal protection of the law as guaranteed by the state and federal constitutions. They further allege that District 7 is neither compact nor contiguous and was intended to and does, in fact, isolate and cause to be ineffective the voting strength of those citizens who vote in three designated townships in the proposed District 7. They ask that this court redraw the boundary lines of District 7 to correct the asserted arbitrary action and abuse of discretion of the Apportionment Board and, further, revise only the boundary lines of adjacent senatorial districts made necessary by this court’s revision of District 7.
This action was commenced on July 14,1981, or within 30 days as required after the Board of Apportionment filed, on July 13, 1981, its report of apportionment with the Secretary of State. The defendant Governor filed an answer in which he virtually admitted the allegations of the complaint. Defendants Riviere and Clark, on July 27, 1981, filed a motion to dismiss on the ground that the complaint failed to state a cause of action as it attacked only a local area or portion of the statewide reapportionment plan. The plaintiffs have not amended their complaint although they reserved that right. Instead, they chose to stand on it. This court ordered the parties to brief the threshold question of whether an action would properly lie if it attacks less than the full apportionment plan.
The only question for determination presented, therefore, is whether a valid cause of action is alleged in the complaint. We believe the complaint does not state a proper cause of action pursuant to Amendment 45 § 5, which amends Art. 8, as amended by Amendment 23 of our state constitution. The pertinent provisions provide that any citizens or taxpayers may file an action here to (a) compel the Board to perform its duties, and (b) to revise any arbitrary action or abuse of discretion by the Board in making its reapportionment, provided that action for revision is brought within 30 days from the filing of the reapportionment report with the office of the Secretary of State.
Plaintiffs’ admitted attempt to contain their attack to a local area cannot restrict the remedy; i.e., that an analysis of the statewide senatorial plan shows that the reapportionment is unconstitutional. In every reapportionment case before this court, the challenge has been or is recognized as being one to the entire plan itself, a claim that it was illegal. Rockefeller v. Smith, 246 Ark. 819, 440 S.W. 2d 580 (1969); Faubus, Governor v. Kinney, 239 Ark. 443, 389 S.W. 2d 887 (1965); Stevens v. Faubus, Governor, 234 Ark. 826, 354 S.W. 2d 707 (1962); Pickens v. The Board of Apportionment, 220 Ark. 145, 246 S.W. 2d 556 (1952); Smith v. The Board of Apportionment, 219 Ark. 611, 243 S.W. 2d 755 (1951); and Shaw, Autry and Shofner v. Adkins, Governor, 202 Ark. 856, 154 S.W. 2d 415 (1941). That is the required cause of action. In this case the complaint is captioned: “Complaint Applying for Revision of New State Senate District 7.” Nowhere in the complaint is it stated or alleged that the entire plan itself is illegal or the result of arbitrary action. In the request for relief the complaint only asks the lines be redrawn in one district so as not to discriminate against the voters in three townships: Hico and Ball in Benton County and White Oak in Franklin County.
The Board has drawn or fashioned each of the 35 individual senatorial districts to achieve, as nearly as practical after considering pertinent factors, substantial equal population, as is required by our federal constitution. Reynolds v. Sims, 377 U.S. 533 (1963); Maryland Committee v. Tawes, 377 U.S. 656 (1963); and Lucas v. Colorado General Assembly, 377 U.S. 713 (1963). To the same effect see our own cases cited supra. The redrawing of one district, as here, would unavoidably result in a “ripple” effect which admittedly would require a readjustment of other districts. Plaintiffs argue, however, that the “ripple” would be limited to only those districts immediately adjacent to District 7 which would be at the most six districts. The question naturally arises, where would the “ripple” stop?
The plan is not a piecemeal plan. It was made for the entire state and every decision that went into it necessarily affects every district in the state. We cannot say, going into such a lawsuit, that only District 7 will be considered and its grievance heard. That would be like a taxpayer’s lawsuit which claims that a tax is illegal as to one taxpayer and perhaps some others but should be declared illegal only as to the complaining party.
The plaintiffs choose to attack the plan as arbitrary. Essentially their claim is that the formation of District 7 was based purely on political consideration and that the intent of the people was secondary. The plaintiffs also suggest several other districts were formed to favor incumbents. Even if those claims be valid, no claim is made that such action would or should void the plan. Instead only three townships seek relief for themselves.
Although plaintiffs concede that it may be necessary to review other adjacent proposed districts and even alter them, they refuse to request the action or even challenge the whole plan. They state, with commendable candor, that they “have no direct concern regarding what the Board of Apportionment might or might not have done” in other counties or distant parts of the state. “That is essentially none of our business, and we have no desire to make it such .... [A] redrawing of the entire Senate apportionment plan is simply not necessary nor is it requested.”
If we were going to accept this complaint as stating a valid or prima facie cause of action, i.e., one can challenge only a part of a comprehensive statewide plan, then there could be 35 different challenges to the plan. Our decision would not preclude another district from being timely challenged in a separate lawsuit. Necessarily a challenge must be made to the whole plan. While it might be demonstrated that one district, as here, is illegally drawn, or arbitrarily created, the challenge and possible relief cannot be so limited in area. That is exactly what the plaintiffs propose.
In Smith v. The Board of Apportionment, supra, the issue presented there, whether the complaint states a cause of action, was skirted. The complaint was filed by citizens of Pulaski County alleging under-representation in that senatorial district based on numerical standards. Both the majority and dissenting opinions recognized that this court could not be limited to its analysis of only one district. However, the court, on its own, considered and analyzed statewide the inequities in other districts. Here, the plaintiffs affirmatively disclaim this type of review and assert it is unnecessary. Significantly, in Smith there was no motion to dismiss. Here, there is. We accepted briefs by the parties on this one issue because if the complaint fails to state a cause of action, the case is terminated.
It appears that the plaintiffs cannot amend their complaint to state a cause of action at this stage of the proceedings. A cause of action for revision must be filed within thirty days after the reapportionment plan is filed. Ark. Const. Amend. 45. As an analogous situation, our cases regarding elections hold that an amendment to a complaint after a certain time period is not permitted when a new cause of action is stated. Bland v. Benton, 171 Ark. 805, 286 S.W. 976 (1926); Moore v. Childers, 186 Ark. 563, 54 S.W. 2d 409 (1932); Wilson v. Ellis, 230 Ark. 775, 324 S.W. 2d 513 (1959); and William H. Jones v. Etheridge, 242 Ark. 907, 416 S.W. 2d 306 (1967). Here no valid or prima facie cause of action was stated. To permit an amendment stating a cause of action at this stage of the proceedings would be allowing the plaintiffs to first do so months after the expiration of the 30 day time limitation provided by our constitution. No doubt the drafters of Art. 8, § 5, as amended by Amendments 23 and 45, each providing for a 30 day time limitation, desired that a reapportionment plan have some degree of stability and finality. In the circumstances, the motion to dismiss is granted.
Adkisson, C.J., and Purtle and Dudley, JJ., dissent. | [
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Robert H. Dudley, Justice.
The Arkansas Public Service Commission is funded by fees which are assessed annually on the regulated utilities. The fees are based upon the company’s revenue and not upon the amount of time and money it takes to regulate each utility. The issue in this case of statutory interpretation is whether the interstate toll revenues of a telephone company should be included in the company’s “gross earnings” in computing the fee.
The Public Service Commission, and its predecessor Department of Public Utilities, in assessing the annual fee from 1935 to the date this series of appeals began, treated “gross earnings ... in this state” as not including the interstate toll earnings. On August 6, 1980, the commission issued an order reversing its interpretation of the statute and directing that interstate tolls be included. On appeal, the circuit court reversed and the commission now appeals to this court. We affirm the circuit court in its holding that a fee should not be assessed on interstate tolls.
Ark. Stat. Ann. § 73-249 (Repl. 1979) provides that an annual fee based upon “gross earnings” shall be collected from each utility. “Gross earnings” is defined by § 73-201 (k):
(k) The term “gross earnings,” when used in this Act shall include all amounts received, charged, or chargeable, for or on account of any public service furnished or supplied in this state by any public utility and shall include all gross income from all incidental, subordinate or subsidiary operations of such utility in this State; provided revenues from manufacture and sale of ice shall not be included. [Acts 1935, No. 324, § 1, p. 895; Pope’s Dig., § 2064; Acts 1967, No. 234, § 4, p. 443; 1973, No. 125, § 1, p. 443.]
The commission contends that the statutory language “all amounts received” manifestly requires that the fee be assessed on interstate tolls, while the appellees argue that the wording of the statute excludes interstate tolls because the fee is to be assessed only on amounts received from services “supplied in this state." The statute is ambiguous when applied to the facts of this case and that ambiguity is underscored by the fact that appellant commission has reversed its interpretation.
Since the wording of the statute is ambiguous, we seek to find the intent of the General Assembly by examining the statute with the aid of rules of statutory construction. One of those rules is “ . . . when the Legislature adopts certain language, or expressions, or terminology in an enactment, it adopts prior construction or constructions thereof.” American Workmen Insurance Co. v. Irvin, 194 Ark. 1149, 110 S.W. 2d 487 (1937).
On February 11, 1935, this court handed down its decision in Wiseman v. Arkansas Power & Light Co., 190 Ark. 351, 78 S.W. 2d 818 (1935) holding that a utility’s revenues from the manufacture and sale of ice were not subject to the fee. The opinion reasoned that the fee charged was intended to support the commission in the performance of its regulatory jurisdiction and since the manufacture and sale of ice were not regulated no fee should be imposed. In addition, by this time, Congress had passed the Federal Communication Act of 1934,47 U.S.C.A. § 151, et seq, which granted the Federal Communications Commission jurisdiction over interstate communications by wire and radio. It was with this background and knowledge, that the General Assembly, on April 2, 1935, passed the act which is now before us and yet nothing is said about fees being assessed on interstate revenues. From this we may infer that the General Assembly intended for the regulatory functions of the commission to be supported by a fee based on revenues generated from intrastate services regulated by the commission exactly as had been done in the past. This inference is augmented by the language of the statute which expressly provides that revenues from the sale of ice shall not be included.
In 1945 the General Assembly enacted a provision requiring the commission to give the utilities an annual statement of the fees due. Ark. Stat. Ann. § 73-249. The General Assembly is presumed to have known that the commission interpreted the statute defining gross revenues as including only intrastate tolls in providing previous statements of fees and yet no change was made in the definition of gross revenues. The known interpretation will be presumed to have been adopted by the General Assembly. Shivers v. Moon Distributors, Inc., 223 Ark. 371, 265 S.W. 2d 947 (1954).
From 1935 until the present litigation, the act was interpreted by the commission, and its predecessor agency, as not including interstate revenues. An administrative interpretation of a statute is not conclusive, but it is a factor to be considered. As stated in Walnut Grove School District No. 6 v. County Board of Education, 204 Ark. 354, 162 S.W. 2d 64 (1942):
“. . . As a general rule executive and administrative officers will be called upon to interpret certain statutes long before the courts may have an occasion to construe them. Inasmuch as the interpretation of statutes is a judicial function, naturally the construction placed upon a statute by an executive or administrative official will not be binding upon the court. Yet where a certain contemporaneous construction has been placed upon an ambiguous statute by the executive or administrative officers, who are charged with executing the statute, and especially if such construction has been observed and acted upon for a long period of time, and generally or uniformly acquiesced in, it will not be disregarded by the courts, except for the most satisfactory, cogent or impelling reasons. In other words, the administrative construction generally should be clearly wrong before it is overturned. Such a construction, commonly referred to as practical construction, although not controlling, is nevertheless entitled to considerable weight. It is highly persuasive.” Among the numerous cases cited in support of this statement of the law is our own case of Moore v. Tillman, 170 Ark. 895, 282 S.W. 9.
For these reasons we interpret the ambiguous statute to apply to intrastate tolls only.
Affirmed.
Hays, J., not participating.
Purtle, J., dissents. | [
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Darrell Hickman, Justice.
The issue in this case is whether a defamatory letter was “published.” The trial court granted a motion to dismiss holding that there had been no publication of the letter. For purpose of argument it has to be conceded that the letter was libelous.
The appellant, Mrs. Louise Bariola Farris, is a nurse who practices at the Chicot Memorial Hospital in Lake Village. The appellee, Tom H. Tvedten, is a doctor who practices at the same hospital. Dr. Tvedten dictated the letter in question to a stenographer. It was addressed to Mrs. Farris at Box 16, Jennie, Arkansas. The letter strongly criticized Mrs. Farris, implying that she had substituted medication thereby committing a criminal act.
By pleadings and arguments the sole question before the trial court was whether the letter was published and, if so, whether the publication occurred when Dr. Tvedten dictated the letter to a stenographer and when the letter addressed to Mrs. Farris was opened and read by her husband. The court ruled that there was no publication and we agree.
In a defamation case a libelous or slanderous statement must be published or communicated to a third person to be actionable. W. Prosser, The Law of Torts, § 113 (4th ed. 1971); Braman v. Walthall, 215 Ark. 582, 225 S.W. 2d 342 (1949). However, not every communication to a third person is deemed to be a publication. Some communications are protected by a qualified privilege; that is, the fact that a third party learns of the libelous matter is not necessarily publication. Unless there is an abuse of this qualified privilege, such as excessive or malicious publication, there is no publication in the eyes of the law. W. Prosser, supra, § 115; Braman v. Walthall, supra; Bohlinger v. Germainia Life Ins. Co., 100 Ark. 477, 140 S.W. 257 (1911). The statement by Dr. Tvedten to the nurse on its face was such a privileged statement since it was made by one with an interest or duty in a matter to another who had a like interest or duty. W. Prosser, supra, § 115; Braman v. Walthall, supra; Arkansas Associated Telephone Co. v. Blankenship, 211 Ark. 645, 201 S.W. 2d 1019 (1947).
The trial court found no abuse of the privilege in this case. The doctor and nurse worked in the same hospital. The letter was purely in reference to the appellant’s performance at the hospital regarding medication practices in which both parties had some duty and interest. The letter was dictated to the doctor’s stenographer, and that act alone did not amount to publication. W. Prosser, supra, § 115 n. 59; Polk v. Mo. Pac. R. Co., 156 Ark. 84, 245 S.W. 186 (1922).
The fact that the husband opened and read a letter addressed to his wife was not deemed by the trial court to be publication. That was an act beyond the control of the writer and there is no evidence that Dr. Tvedten knew or could have foreseen anyone else would have opened the letter. There is no liability for publication when a sealed letter is sent to the plaintiff personally which is unexpectedly opened and read by another. W. Prosser, supra, § 113, n. 41; Barnes v. Clayton House Motel, 435 S.W. 2d 616 (Tex. Civ. App. 1968); Weidman v. Ketcham, 278 N.Y. 129, 15 N.E. 2d 426 (1938).
The parties by pleadings and briefs narrowed the argument to the issues we have discussed. The trial court ruled on that basis and we have recited the facts that we have. Having reviewed the record on that basis, we cannot say the trial court was clearly wrong.
Affirmed. | [
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Richard B. Adkisson, Chief Justice.
Following a trial by jury appellant, Ronald A. Coble, was convicted of capital felony murder and sentenced to life imprisonment without parole.
On the afternoon of January 28,1980, at approximately 6:30 p.m., the body of Mrs. Bell Lloyd was found by her husband in their home near Jonesboro, Arkansas. She had been shot in the neck and upper chest with a .12 gauge shotgun. The victim’s white Chevrolet automobile, a .32 caliber pistol, and approximately $100 worth of old coins were missing from the premises. The description and license number of the car were immediately broadcast over the police radio.
The owner of a liquor store in nearby Poinsett County heard this broadcast on his police scanner and realized the license number matched one that he had jotted down about 5:00 p.m. that afternoon. He had become suspicious when a man purchased a six-pack of Budweiser in bottles with old silver coins. He copied down the license number of the white Chevrolet which the man was driving. Upon hearing the broadcast he reported the incident to the police.
The description of a hitchhiker seen in the vicinity of the Lloyd residence at approximately 2:00 p.m. that afternoon was reported to the police. Later that evening officers learned that two men were selling old coins at the Dew Drop Inn at Marked Tree. The description of one of the men selling the coins matched the description of the hitchhiker seen near the Lloyd’s residence at about the time of the crime. Having apparently determined that it was Coble who was selling the coins, Officers Graves, Morphis, Taylor, and Hallmark proceeded to Coble’s residence, arriving there at about 12:30 a.m. Mrs. Gray, appellant’s mother-in-law, answered the door. The officers asked to speak with the appellant. Mrs. Gray invited them in, they declined, but they waited on the porch after being told that Coble was in bed.
After about 15 minutes, Coble came to the porch. He went with the officers to a car parked in front of the residence to talk. It was determined that this car belonged to James Gray, Coble’s brother-in-law, who also lived in the house. Officer Taylor asked Gray about a pistol that had been seen in the floorboard of Gray’s car; Gray stated that the pistol belonged to Coble but that he had not seen Coble with the pistol before that night. The officers confirmed by radio that this pistol fit the description of the one taken from the Lloyd residence. The officers then placed Coble in custody and transported him and James Gray to the Trumann Police Department where Gray was released and advised to come back in the morning to make a statement.
Later Coble was transported to the Craighead County Jail in Jonesboro. A lineup was held around noon on January 29, and Coble was identified by J. L. Windley as the hitchhiker he had dropped off near the Lloyd residence. The owner of the liquor store also viewed the lineup but was unable to identify the appellant.
Shortly after the lineup, while he was being fingerprinted and processed, Coble told Deputy Sheriff Howell that he wanted to speak with someone in authority. Howell called Sheriff Floyd Johnson. At 2:27 p.m. Sheriff Johnson, Deputy Prosecuting Attorney Parker, and Deputy Howell fully advised Coble of his rights under Miranda v. Arizona, 384 U.S. 436 (1966) and took his statement. Before the statement was taken, they asked appellant several times if he would like to speak to Attorney David Rees or some other attorney but Coble refused the offer.
Appellant first argues that the trial court erred in failing to suppress the statement given by the appellant. He contends he was arrested without a warrant in his home in violation of the Fourth Amendment and relies on Payton v. New York, 445 U.S. 573 (1980) and Dunaway v. New York, 442 U.S. 200 (1979).
In Payton the police, with probable cause but no arrest warrant, used crowbars to break open the door and enter the defendant’s home when there was no response to their knock. The Court held that the Fourth Amendment prohibits police from making a warrantless and nonconsensual entry into a suspect’s home in order to make a routine felony arrest. In a companion case, Riddick v. New York, 445 U.S. 573 (1980), the Court held there was probable cause for an arrest but the Fourth Amendment was violated when the police entered defendant’s residence without consent and without an arrest warrant when a three year old child opened the door. In both of these cases evidence seized on the premises was suppressed as being the fruit of an illegal arrest.
In Dunaway the Supreme Court held that the police violated the defendant’s Fourth Amendment rights when they seized him without probable cause and transported him to the police station for interrogation. The defendant’s statement was suppressed as being the exploitation of an illegal arrest. The Court found no intervening event of significance to break the causal connection between the illegality and the confession. See Brown v. Illinois, 422 U.S. 590 (1975).
Here, however, Coble voluntarily came out of his residence to talk with police officers and voluntarily spoke with them in the car. There is no nonconsensual police conduct which characterized Payton and Riddick; neither is there an absence of probable cause which characterized Dunaway.
Although it is not clear from the record whether there was a stipulation that probable cause existed at the time of Coble’s arrest, the record does reflect that there was, in fact, probable cause. Probable cause exists where the facts and circumstances within the officers’ knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed by the person to be arrested. Brinegar v. United States, 338 U.S. 160 (1949); Carroll v. United States, 267 U.S. 132 (1925); McGuire v. State, 265 Ark. 621, 580 S.W. 2d 198 (1979). When the officers went to Coble’s residence they were able to verify the description they had of the hitchhiker seen in the vicinity of the victim’s home, as well as the description of the person selling coins at the Dew Drop Inn. These facts, coupled with Gray’s statement regarding the pistol and the fact that the pistol found in the car at Coble’s residence matched the description of the pistol taken from the victim’s home, gave the officers probable cause to arrest Coble.
Appellant also argues that his statement should be suppressed because his attorney was not notified that he wished to make a statement. It is not clear from the record whether Coble had counsel other than for purposes of the lineup, but we need not make this determination because Coble not only waived his right to counsel but also initiated the contact with the police that produced the statement. An accused can waive his right to counsel if it is done voluntarily, knowingly, and intelligently. Johnson v. Zerbst, 304 U.S. 458 (1938). The admissibility of statements obtained after a person in custody has decided to remain silent depends, under Miranda, on whether his right to cut off questioning was scrupulously honored. Michigan v. Mosley, 423 U.S. 96 (1975). Also, although a person has counsel or invokes his right to counsel, he may be further interrogated if he initiates further communication, exchanges, or conversations with the police. See Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880 (1981); Rutledge v. State, 263 Ark. 781, 567 S. W. 2d 283 (1978); Escobedo v. Illinois, 378 U.S. 478 (1964).
The evidence is undisputed that during fingerprinting Coble initiated contact with the police by asking if he could speak with someone in authority. The deputy contacted Sheriff Johnson who arrived some 30 minutes later. Again the evidence is undisputed that the sheriff fully advised Coble of his Miranda rights. The sheriff and deputy prosecuting attorney repeatedly and earnestly advised Coble of his right to have an attorney present before questioning. Deputy Prosecutor Parker specifically asked appellant, “Do you want David Rees here during your statement, or would you prefer to give your statement without him? Just what do you want to do?” Appellant replied, “I will just give it without him.”
When an in-custody statement is challenged, the State has the burden of proving by a preponderance of the evidence that it was voluntarily given. This determination is made based upon the totality of the circumstances surrounding the taking of the statement. Giles v. State, 261 Ark. 413, 549 S.W. 2d 479(1977). On appeal, we make an independent determination of this issue and affirm the finding of the trial court unless we can say its ruling was clearly erroneous. Degler v. State, 257 Ark. 388, 517 S.W. 2d 515 (1974). The trial court’s finding that appellant’s statement was voluntarily given is supported by substantial evidence and is not erroneous.
The appellant argues that Ark. Stat. Ann. § 41-1501 (1) (a) (Repl. 1977) and Ark. Stat. Ann. § 41-1502 (1) (a) overlap and are, therefore, unconstitutionally vague. These statutes are not vague, since they clearly set out what acts are prohibited. We have found no constitutional infirmity in the overlapping of the two sections because there is no impermissible uncertainty in the definition of the offenses. Cromwell v. State, 269 Ark. 104, 598 S.W. 2d 733 (1980); Earl v. State, 272 Ark. 5, 612 S.W. 2d 98 (1981).
Next appellant contends that the trial court erred in allowing the jury to be qualified under the procedure set forth in Witherspoon v. Illinois, 391 U.S. 510 (1968) because first, a death qualified jury is more conviction prone and second, because such a jury is not composed of a fair cross section of the community. Appellant also contends he is entitled to have two juries sit in his case — the first to decide the issue of guilt and the second to determine punishment. After reviewing the evidence in this case, we cannot say that the trial judge’s findings on these points were clearly erroneous. All of these issues have been previously, in some way, considered by this Court. Giles v. State, supra; Venable v. State, 260 Ark. 201, 538 S.W. 2d 286 (1976); Hobbs v. State, 273 Ark. 125, 617 S.W. 2d 347 (1980).
Finally, appellant asserts that he is entitled under Ark. Stat. Ann. § 43-2006 (Repl. 1977) to reimbursement for expenses for the use of expert witnesses in his behalf. There is no evidence in the record that a subpoena was issued for witnesses under this statute, therefore, the issue is not reviewable on appeal.
This Court has reviewed all objections pursuant to Rule 36.4, Ark. Rules Crim. Proc., Vol. 4A (Repl. 1977) and Rule 11 (f), Rules of Supreme Court, Vol. 3A (Repl. 1979) and finds no error.
Affirmed.
Purtle, J., concurs. | [
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Per Curiam.
The petitioner has filed what is styled a Petition for a Writ of Mandamus. It is denied because the record, such as it is, does not reflect a cause of action has been filed. The first “pleading” reads:
IN THE CIRCUIT COURT OF RANDOLPH COUNTY, ARK.
JAMES L. DAUER PLAINTIFF
VS. NO. CIV-81-6-
RANDOLPH COUNTY MEDICAL CENTER, INC. DEFENDANT
O-P-I-N-I-O-N
As a Tax Paying Citizen of Randolph County do: I have under the Freedom of Information Act of 1967 — 12-2801—12-2807 the right to examination and right to copy the records of Public Meetings both formal or informal, special or regular of the Randolph County Medical Center, Inc., (Randolph County Board of Governors).
James L. Dauer
James L. Dauer, Plaintiff
Thereafter the record contains a pleading styled “Temporary Restraining Order,” signed by Dauer, and several letters. The correspondence reflects the trial court avoided advising Dauer about the correctness or worth of his lawsuit. In that regard the judge was decidedly correct. It is not the role of a trial judge to inject himself into an adversary proceeding in the aid of either party. To the contrary such action can be unethical. People who choose to represent themselves, as the petitioner has, necessarily must succeed or fail on their knowledge or ability.
Petition denied.
Dudley, J., not participating. | [
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Per Curiam.
The appellant, by his attorney, has filed a motion for an extension of time for the filing of a brief. Appellant’s attorney is a non-resident who is not licensed to practice law in this State. A non-resident attorney will be permitted to appear in the Arkansas courts by comity and courtesy only upon satisfying the conditions set forth in Rule XIV, Rules Governing Admission to the Bar, Ark. Stat. Ann. Vol. 3A (Repl. 1979). One of the conditions is:
A non-resident lawyer will not be permitted to engage in any case in an Arkansas court unless he first signs a written statement, to be filed with the court, in which the non-resident lawyer submits himself to all disciplinary procedures applicable to Arkansas lawyers.
The motion will be dismissed for non-compliance with the Rules Governing Admission to the Bar unless the nonresident attorney complies with the rules within twenty days. | [
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Frank Holt, Justice.
This appeal results from a jury’s finding that the appellees were not liable for the death of Michael Crosno, minor son of appellant Patsy Crosno Hunter, nor for the injuries suffered by appellant Pattie Jean Crosno when a collision occurred between a pickup truck driven by Michael Crosno and a mobile home being pulled by a tractor driven by appellee Henry Slatton, an employee of appellee McDaniel Brothers Construction Company. Pattie was a passenger in the pickup truck. For reversal appellants first contend that the trial court erred in ordering, sua sponte and over appellants’ objection, a bifurcation of the trial on the issues of liability and damages pursuant to Rules of Civil Proc., Rule 42 (b), 3A Ark. Stat. Ann. (Repl. 1979). The court had made known its intention to do so a few days before trial. As indicated the jury found no liability on the part of the appellees, and, therefore, did not reach the issue of damages.
The propriety of this bifurcation procedure is an issue of first impression in this state. Rule 42 (b) reads:
The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any claim, cross-claim, counterclaim, or third party claim, or of any separate issue or any number of claims, cross-claims, counterclaims, third-party claims or issues.
Appellants argue that the bifurcation of the trial on the issues of liability and damages deprived them of their right to a jury trial as guaranteed by Art. 2, § 7, Arkansas Constitution (1874), and Rules of Civ. Proc., Rules 38 and 39,3A Ark. Stat. Ann. (Repl. 1979). Our Rule 42 (b), supra, is copied from Rule 42 (b), Fed. Rules Civ. Proc. The bifurcation of the issues of liability and damages in personal injury actions is common in the federal practice pursuant to Rule 42 (b) as well as many states where a court rule, as here, or statute permits. Moss v. Associated Transport, Inc., 344 Fed. 2d 23 (6th Cir. 1965), and 85 A.L.R. 2d § 3, p. 12. The separation of the issue of liability from that relating to damages is an obvious use of Rule 42 (b). Logically, liability must be resolved by the factfinder before damages are considered. See 9 Wright and Miller, Federal Practice and Procedure, § 2390, p. 296. Mercado v. City of New York, 25 A.D. 2d 75, 265 N. Y. Supp. 2d 834 (1966). The bifurcation of these issues is not an infringement upon the constitutional right to a jury trial. Hosie v. Northwestern Ry., 282 F. 2d 639 (7th Cir. 1960), cert. denied, 365 U.S. 814, 81 S. Ct. 695, 5 L. Ed. 2d 693 (1961), and Wright, Federal Courts, Ch. 10, § 97 (1963), pp. 433-434.
Appellants assert also that the issues of liability and damages were so interwoven that it was prejudicial error to try the case in a bifurcated manner since they had to establish damages in order to prove liability. Appellants, however, adduced proof that they had sustained damages. They introduced photographs showing the condition of the vehicles following the accident. Upon impact the scene “looked like a big explosion.” There was testimony that Pattie Crosno was found alive after being thrown from the truck and Michael Crosno’s body was apparently thrown through the windshield of his truck. There is nothing in the record to indicate that the asserted liability and the nature of the damages were such that liability was dependent upon damages. In other words, it appears that the evidence pertinent to these two issues was totally unrelated. See Hosie v. Northwestern Ry., supra.
Appellants further argue that a simple vehicular collision, as here, is not an appropriate situation for a bifurcated trial. We cannot agree. The purpose of Rule 42 (b) is to further convenience, avoid delay and prejudice, and serve the needs of justice. The primary concern is efficient judicial administration, rather than the wishes of the parties, as long as no party suffers prejudice by the bifurcation. LoCicero v. Humble Oil & Refining Co., 52 F.R.D. 28, 30 (E.D. La. 1971). However, a bifurcation should be used on a case by case basis based upon the informed discretion of the court. Lis. v. Robert Packer Hosp., 579 F. 2d 819 (3d Cir. 1978). A routine bifurcation, however, would not be an exercise of discretion. Absent an abuse of discretion the decision will not be disturbed on appeal. Mosley v. General Motors Corp., 497 F. 2d 1330 (8th Cir. 1974); Nettles v. General Accident Fire and Life Assurance Corp., 234 F. 2d 243 (5th Cir. 1956). We cannot say from the record before us that the trial court abused his discretion.
Appellants next contend that the court erred in refusing their proffered instruction AMI 903 to cover their theory of the case. While it is error for the trial court to fail to instruct the jury on a statute applicable to the case, Life and Cas. Ins. Co. of Tenn. v. Gilkey, 255 Ark. 1060, 505 S.W. 2d 200 (1974), it is also error to instruct the j ury on an inapplicable statute. CRT, Inc. v. Dunn, 248 Ark. 197, 451 S.W. 2d 215 (1970). Portions of the statute not applicable to the facts must be deleted. Harkrider v. Cox, 230 Ark. 155, 321 S.W. 2d 226 (1959). Appellants’ proffered instruction consisted of a compilation of numerous statutory provisions regarding the transportation of trailers. Several of these sections were inapplicable to the facts presented. Therefore, the trial court correctly refused the instruction inasmuch as the proffered instruction contained abstract statements of the law. Harkrider v. Cox, supra; and CRT, Inc. v. Dunn, supra.
Appellants next assert that the trial court erred in giving AMI 305 (b), offered by appellee, and rejecting AMI 305 (c), offered by appellants. The instructions read:
AMI 305 (b):
It was the duty of all persons involved in the occurrence to use ordinary care for their own safety and the safety and the property of others.
AMI 305 (c):
It is the duty of both Michael Crosno, deceased, and Henry M. Slatton to use ordinary care for their own safety and the safety of others and their property.
Appellant Pattie Crosno argues that 305 (b) is a direct and prejudicial comment on the evidence as related to her inasmuch as it “directed the jury” to find against her. We do not so construe the instruction. This was an accident involving three vehicles and several parties. Appellant has demonstrated no prejudice; therefore, we find no merit in this argument.
In their final point for reversal, appellants assert the trial court erred in not allowing appellants to introduce into evidence the original and amended interrogatories and answers made by appellees pursuant to Rule 33 (b). It appears that appellants sought the use of the interrogatories and answers to impeach the credibility of appellees’ witnesses, citing Rules of Evidence, Rules 607 and 611 (b), Ark. Stat. Ann. § 28-1001 (Repl. 1979). Rule 33 (b) provides that answers to interrogatories “may be used to the extent permitted by the rules of evidence.” Our Rule 33 (b) is identical to Rule 33 (b) of F. R. Civ. P. In 4A Moore’s Federal Practice § 33.29 [1], p. 33-174, it is stated:
Under Rule 26 (d), as incorporated in Rule 33, answers could be used ‘by any party for the purpose of contradicting or impeaching the testimony of’ the answering party as a witness . . .
In § 33-29 [2], p. 33-180, it is summarized:
It must be, therefore, that the amended Rule [33] was framed with a recognition that answers to interrogatories are hearsay and inadmissible at the trial unless they fall within some recognized exception to the hearsay rule. Thus they would be admissible for purposes of impeaching the testimony of the person making them . . .
Here, appellants argue that they were entitled to introduce the interrogatories and answers by appellee McDaniel, who was unavailable as a witness, to contradict the testimony given by Earney and Bowie, witnesses for the appellees. Appellants argue that the important part of McDaniel’s answer is: “According to Mr. Slatton [McDaniel’s employee], he had pulled over on the shoulder of the road and had completely stopped at the time of the impact to our tractor and trailer.” It is argued that this answer controverts the testimony of Bowie with regard to the speed of the vehicle and location on the highway. Suffice it to say that the appellants have not shown how this answer or other answers would fall within a recognized exception of the hearsay rule. Thus, the trial court was correct in not allowing these interrogatories and answers into evidence.
Affirmed.
Adkisson, C.J., and Purtle and Hays, JJ., dissent. | [
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Per Curiam.
Appellant, Larry Donnell Washington, by his attorney, has filed for a rule on the clerk.
His attorney, Richard W. Byrd, admits that the record was tendered late due to a mistake on his part.
We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5,1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964.
A copy of this opinion will be forwarded to the Committee on Professional Conduct.
Justice Purtle would grant the motion finding no fault on the part of counsel. | [
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Darrell Hickman, Justice.
This is a defamation case. Lester Lancaster, a policeman for the City of Magnolia, Arkansas, sued the local newspaper, The Daily Banner-News, alleging that he was defamed in a series of editorials the paper ran in 1975. The newspaper filed a motion for summary judgment with affidavits setting forth the actual knowledge the writers had when the editorials were written. Lancaster countered with his affidavit, and numerous, lengthy depositions, mostly of people the writers for the Banner-News had named as their sources. The trial court granted summary judgment finding that no substantial evidence of actual malice existed.
Lancaster appeals alleging two errors: The court was wrong in granting summary judgment and wrong in denying Lancaster’s motion to require the newspaper to answer certain allegations. We affirm the judgment.
Lancaster concedes that he is a “public official,” the editorials were about his official conduct, and the issue is reduced to one of actual malice. Since he is a public official, he is less protected in a defamation case than a private citizen. Time, Inc. v. Firestone, 424 U.S. 448 (1976).
The rule all courts must follow in a defamation case involving a public official was announced in New York Times Co. v. Sullivan, 376 U.S. 254 (1964). Sullivan was one of three city commissioners of Montgomery, Alabama; the publication was a full page advertisement. The Court found that the first amendment to the United States Constitution “prohibits] a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he preoves that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” New York Times Co. v. Sullivan, supra, at pp. 279, 280.
The Supreme Court has set some boundaries of what “actual malice” is and what it is not. Actual malice means that “ . . . the utterance was false and that it was made with knowledge of its falsity or in reckless disregard of whether it was false or true.” It would be a “ . . . lie, knowingly and deliberately published about a public official...” Garrison v. Louisiana, 379 U.S. 64 (1964).
It is not material that the speaker has a personal motive. In Garrison v. Louisiana, supra, the Court said: “Debate on public issues will not be uninhibited if the speaker must run the risk that it will be proved in court that he spoke out of hatred; even if he did speak out of hatred, utterances honestly believed contribute to the free interchange of ideas and the ascertainment of the truth.”
Actual malice is more than a negligent act. In St. Amant v. Thompson, 390 U.S. 727 (1968), a political candidate read on television an affidavit containing certain defamatory accusations against a deputy sheriff. The Court held that since the defendant relied on an affidavit, even though he could have and did not investigate the charges himself, there was no actual malice. The Court declared: "[R]eckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication... Failure to investigate does not in itself establish bad faith.” At 731, 733.
In Beckley Newspapers Corp. v. Hanks, 389 U.S. 81 (1967), a newspaper published an editorial criticizing an elected official. The newspaper admitted that it did not investigate the charges. The Court reversed the lower court’s judgment for the official, ruling that failure to investigate did not amount to the high degree of awareness of probable falsity demanded by New York Times Co. v. Sullivan, supra.
The federal rule requiring actual malice is based on the premise that freedom of expression must enjoy some legal privilege from fear of punishment for misstatements about public officials. Quoting, with approval, from a previous concurring opinion by Justice Brennan, the Court in Sullivan said:
Those who won our independence believed . . .that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infracton; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; . . .
The Court described the atmosphere that must be allowed to exist if free speech is to be a meaningful constitutional guarantee: The “ ... debate on public issues should be uninhibited, robust, and wide-open, and ... it may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials.” Free debate must be protected if the freedom of expression is to have the “breathing space that [it] needs ... to survive.” New York Times Co. v. Sullivan, supra, at 721.
With these principles in mind we examine the facts in this case.
The editorials, a series of eleven, were about the state of law enforcement in the City of Magnolia, Arkansas. Lancaster was no doubt specifically attacked for his conduct as a policeman. The first editorial, dated April 16,1975, was run after a trial in municipal court during which a local citizen, Walter Crabtree, testified that Lancaster and another policeman had beaten and abused him. The municipal court found Crabtree guilty of resisting arrest, and using profane and abusive language; he was found not guilty of assault and battery and public drunkenness. This editorial generally related the testimony given at the trial, giving credit to conflicting stories of Crabtree and the two officers, it stated, “it was established, however, that Crabtree was struck at least once by a blackjack by Lancaster in the Police Chief’s private office and knocked to his knees ... the situation got completely out of hand... with Crabtree, who weighs about 145 .. . pounds — being blackjacked, allegedly being hit in the mouth by McKinnis . . . while handcuffed.”
A follow-up editorial was published April the 22nd and related a separate incident of violence. It said a Magnolia businessman had seen a Magnolia City patrolman strike a youth; the editorial related that according to the report the blow was not justified. No mention was made of who the policeman was. It stated that the Mayor had talked to the two police officers involved and that they denied striking the youth.
On July 10, 1975, an editorial summarized the previous editorials about Lancaster and the city government’s action, it concluded:
What is going on in our police department?
Reports and rumors have been circulating for some time now about brutality, vindictive actions, intimidations, violations of individual constitutional rights, inefficiency, lack of continuing in-service training, illegal searches of both autos and homes, botched up investigations and arrests, lack of adequate supervision and direction on the top level, among other things.
Then finally on September 22, 1975, an editorial specifically directed toward Lancaster was published. It is the main basis of Lancaster’s action and in relevant part it reads:
Magnolia’s controversial city policeman, Lester Lancaster, continues to flaunt the constitutional rights of individual citizens in his self-styled goal to clean up the city of Magnolia.
Already under investigation by the U.S. Justice Department when he and another policeman allegedly beat up a Magnolia man in the private office of Police Chief James Cleaver in an accident that was highly questionable from the beginning to the disastrous end. Lancaster evidently believes he has the power (not the right, but the power) to violate the constitutional rights of any person as he so chooses.
Reports of illegal arrests, illegal searches, brutality, intimidation, among other things, regarding Lancaster have been made not by one Magnolia citizen but by several.
Lancaster evidently believes he has unlimited authority to pursue whatever matter he wishes in Magnolia and even out of the city, which he has done illegally on several occasions.
R. W. Chowning, the general manager of the Banner-News, and Steve Ford, the managing editor, wrote the editorials. It was undisputed that they attended the municipal court trial and that the first editorial followed that trial. It is not specifically pointed out where the editorial was false, rather it is argued that the paper slanted the editorial by ignoring the court’s findings that the “victim” was indeed found guilty of two crimes.
Ford’s affidavit and deposition reflected that he was told by Lynn Keith, a local Magnolia businessman, about the incident referred to in the April 22nd editorial concerning a youth being struck by Lancaster. There is no evidence that Ford misrepresented what he was told.
The editorials, including the final one, were justified on the basis of numerous conversations with local citizens, officials, named and unnamed, and an accumulation of sources. In all, Ford and Chowning listed no less than thirteen people as named sources, in addition to personally attending the trial. For example, a local attorney, Joe Woodward, related to Chowning that Lancaster had been on his farm, ten miles outside the city limits, “staking out” a building. According to Woodward, Lancaster said he was there because he had found a stolen wheelbarrow nearby; Lancaster said he had gained entrance to the building and checked the cracks in the floor for evidence. Lancaster did not explain to Woodward by what authority he was on the place or gained entrance to the private structure. An alderman related an instance where Lancaster was involved in a road block outside the Magnolia city limits, which to his knowledge was illegal.
The city attorney, in his deposition, conceded that “over coffee” he had talked about at least two cases in which charges were dismissed because of searches conducted by Lancaster that were not proper. He conceded that Ford was present but disputed the imputation Ford had given to his remarks.
Several people told the writers about instances of young people’s vehicles being searched without consent or without otherwise being “legal.”
It is not pointed out exactly where the editorials were factually incorrect and the newspaper concedes no factual errors. Instead Lancaster argues about the accuracy of the stories told to the writers, whether their written observations were accurate reflections, and whether the proper conclusions were drawn. He claimed that, he had never beaten anyone or violated any rights. Actually it is irrelevant whether the articles were factually correct. The issue was and is, did Lancaster prove the writers knowingly printed false defamatory statements, maliciously so, in total disregard of the truth. Decidedly no, when the Sullivan test is applied.
Besides denying he ever violated anyone’s rights, Lancaster in his affidavit also zeroed in on what he perceived to be the cause of the editorials: Chowning’s longstanding desire to get him fired.
Lancaster had arrested Chowning’s son for possession of marijuana in 1970. The charges were dropped by the prosecuting attorney because, as he still remembered in 1978, there was an evidentiary problem connected with the arrest. Lancaster arrested Chowning’s son again ih 1972 for possession of marijuana; the son pleaded guilty and was placed on probation. He was again arrested in April, 1974, by Lancaster on the same charge. It had not been disposed of at the time of this trial. There is no doubt that Chowning did not care for Lancaster and blamed him for some of his son’s problems. Both the Mayor of Magnolia and. the Chief of Police stated that Chowning came to them at one time and demanded that Lancaster be fired. Both of them said that Chowning told them that the drug and liquor laws should be relaxed or simply not enforced. A former employee of the newspaper testified that she knew Chowning wanted Lancaster fired. Chowning never conceded that he made the statements that the Mayor and the Chief of Police attributed to him but he did not deny that he had indicated to others that Lancaster was not "temperamentally suited to be a policeman.”
Lancaster’s main argument to the trial court and to this court is that the reason for the editorials was Chowning’s grudge against him, and that amounted to actual malice. Actual malice is a term of art. Cantrell v. Forrest City Publishing Co., 419 U.S. 245 (1974). Its definition is found by studying relevant decisions. In the case of New York Times Co. v. Sullivan, supra, it was demonstrated that the New York Times did not even check its own files to determine whether a statement was true. As it turned out it was false. That was not actual malice. In St. Amant v. Thompson, supra, a political candidate made charges against a deputy sheriff without investigating the source of his information. That was not actual malice.
In the case of Garrison v. State of Louisiana, supra, the Court considered a Louisiana statute which punished false statements made with "ill will.” The statute was overruled because ill will is irrelevant when the constitutional standards are applied to süch a publication. It is immaterial that the writer is biased against the official, has ill will towards him, or intended to inflict harm upon him. Garrison v. Louisiana, supra; Rosenblatt v. Baer, 383 U.S. 75 (1966). The test is not one of ordinary care or mere negligence or intention but reckless disregard for the truth. New York Times Co. v. Sullivan, supra.
The other argument relates to certain interrogatories which the newspaper declined to answer. The trial court upheld the newspaper’s objections. One was a request for the identity of the stockholders of the newspaper. Another asked for any changes in stock ownership since the last stockholders meeting before April 25, 1975. The trial court properly ruled that the newspaper did not have to answer these interrogatories. The reason given for the request was that potential jurors might be biased or prejudiced because they were stockholders. Obviously such prospective jurors would be weeded out during the voir dire process. The subject was not one for discovery at this stage of the lawsuit.
The other request was whether the writer had knowledge of other law enforcement officials in Columbia County, Arkansas, other than Lancaster who had reputedly struck a citizen. This information sought to prove that Chowning had bad faith in writing the editorials and was engaged in a personal vendetta against Lancaster. The trial court ruled it irrelevant and we agree for the reasons we have stated.
Affirmed.
Holt, J., not participating. | [
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George Rose Smith, Justice.
This is a tort action by the appellee, Mrs. Bemel, against the appellant, Collection Consultants, a company that collects past-due accounts. The plaintiff asserts that the defendant’s unwarranted and overzealous attempts to collect a $402.35 balance on a hospital bill constituted, first, extreme and outrageous conduct causing Mrs. Bemel severe emotional distress, and second, a wrongful invasion of her right of privacy. Both theories were submitted to the jury, which awarded Mrs. Bemel $1,000 compensatory damages and $4,000 punitive damages. Neither award is challenged as being excessive, but three other asserted errors are argued as grounds for reversal.
First, we treat two of the points together, because there was only a general objection to the instructions, presenting no point for appellate review. ARCivP Rule 51; Capital Steel Co. v. Foster & Creighton Co., 264 Ark. 683, 574 S.W. 2d 256 (1978). The same question, however, was raised by the appellant’s motion for a directed verdict, which the court denied. We therefore consider the sufficiency of the evidence to support either theory of recovery.
Mrs. Bemel testified that the bill originated in March, 1975, when her son shot himself in an unsuccessful suicide attempt and was hospitalized. Most of the bill was paid by insurance. The remainder had been reduced by Mrs. Bemel’s payments before it was assigned to the appellant for collection. She testified that she was harassed by Collection Consultants from January to November, 1976, when the creditor brought suit in a municipal court for $272.35. During some ten months she received about 50 collection letters from the appellant. She did not keep any of the letters and does not describe them as having been offensive in any respect except in number.
Her real grievance arises from about 70 telephone calls she allegedly received during the period. She worked at her job until midnight and usually slept until about 10 a.m., but over her protests the appellant’s employees repeatedly called at her home at 7:00 o’clock or later, awakening her. There were also many calls at her place of employment, also over her objections. She testified that the calls so upset her, by causing flashbacks to her son’s suicidal attempt, that she was unable to work for 15 to 30 minutes at her office or had to go to bed crying at her home. Her son provided some corroboration.
Mrs. Bemel also testified that a person identifying himself as Bill Morgan began calling in late July, saying that he was working out of the prosecuting attorney’s office and was going to garnishee her wages. At times Morgan left his number. When she returned the call the telephone was answered with “Collection Consultants,” and she was connected with a person whose voice was that of Bill Morgan. At first Morgan called four or five times a month, but later he was calling as often as ten times a month.
The defendant’s witnesses admitted having sent letters and having made calls to Mrs. Bemel, but their records, purportedly complete, indicated that the letters and calls were comparatively infrequent. They denied any reference to the prosecuting attorney’s office, but did admit that fictitious names were customarily used by the individual collectors to avoid being called at home after working hours — one of the same harassments that Mrs. Bemel complained about. The conflicting testimony raised questions of fact for the jury to determine.
We need not consider the tort of outrageous conduct, discussed fully in the Restatement of Torts (2d), § 46 (1977), because the jury could have found a wrongful invasion of privacy. We recognized such a cause of action in Olan Mills v. Dodd, 234 Ark. 495, 353 S.W. 2d 22 (1962). In Dodrill v. Ark. Democrat Co., 265 Ark. 628, 637, 590 S.W. 2d 840 (1979), we quoted the basic principles stated in § 652A of the Restatement. This language from Comment d of § 652B supports the cause of action in the present case:
There is likewise no liability unless the interfer ence with the plaintiff’s seclusion is a substantial one, of a kind that would be highly offensive to the ordinary reasonable man, as the result of conduct to which the reasonable man would strongly object. Thus there is no liability for knocking at the plaintiff’s door, or calling him to the telephone on one occasion or even two or three, to demand payment of a debt. It is only when the telephone calls are repeated with such persistence and frequency as to amount to a course of hounding the plaintiff, that becomes a substantial burden to his existence, that his privacy is invaded.
The appellant’s remaining contention is that Mrs. Bemel’s lawyer made an impermissible “golden-rule” argument to the jury. The appellant’s motion for a new trial submitted a transcript of the opening paragraphs of opposing counsel’s closing argument, the record ending with this language:
Now to decide this lawsuit, I think you’re going to have to put yourself in the shoes of Geneva York Bemel
Defense Counsel: Your Honor, I hate to interrupt, but Counsel’s well aware that that type of argument is improper.
The Court: Your objection will be overruled at this point. Go ahead.
There is no indication of how counsel’s argument proceeded from that point on.
We have recognized the impropriety of a golden-rule argument such as counsel’s urging the jurors to award what they themselves would take for the life of their father or husband or wife. Missouri Pac. R.R. v. McDaniel, 252 Ark. 586, 483 S.W. 2d 569 (1972). Here, however, the argument was cut off after counsel had merely said that he thought the jurors were going to have to put themselves in the plaintiff’s shoes. That bare remark falls decidedly short of being reversible error.
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George Rose Smith, Justice.
Jones was charged with sexual abuse in the first degree, in that he threw a nine-year-old boy on the ground and forcibly attempted to have anal intercourse with him. Ark. Stat. Ann. § 41-1808 (Repl. 1977). The j ury found the defendant guilty and imposed a five-year sentence. Both points for reversal relate to the admissibility of evidence. Our jurisdiction is based on Rule 29 (1) (c).
Defense counsel presented a pretrial motion asking the court to rule that if Jones elected to testify the prosecution could not impeach his credibility by showing that Jones had pleaded nolo contendere to an earlier charge of rape also involving a little boy. It was argued that the prejudicial effect of the earlier conviction would outweigh its probative value. Following the court’s denial of the motion Jones elected not to testify. The ruling is assigned as error.
The ruling was wrong. Uniform Evidence Rule 609 (a), Ark. Stat. Ann. § 28-1001 (Repl. 1979), provides in part that “[f]or the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted only if . . . the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party or a witness.” An exception is made for crimes involving dishonesty or false statement, which may always be proved. Other details in the Rule are unimportant here.
The Uniform Rule unqestionably changed the Arkansas law, which formerly permitted proof of a conviction of any felony to impeach a witness’s credibility. Field, A Code of Evidence For Arkansas?, 29 Ark. L. Rev. 1, 27 (1975). The Uniform Rule is specifically directed to the conviction’s probative value with respect only to credibility, because under both our common law and the Uniform Rules proof of an earlier crime is not admissible merely to bolster the prosecution’s case by showing that the accused is a person of bad character, addicted to crime. Alford v. State, 223 Ark. 330, 266 S.W. 2d 804 (1954); Uniform Rule 404 (b).
On the facts of this case the prejudicial effect of the previous conviction clearly outweighed its value as bearing on credibility. There may be instances in which proof of an earlier conviction for the same crime as that on trial may be admissible, but there are sometimes strong reasons for excluding such proof because of the pressure on lay jurors to believe that “if he did it before he probably did so this time.” Gordon v. United States, 383 F. 2d 936 (D.C. Cir. 1967), cert. denied 390 U.S. 1029 (1968). That is especially true in the case at bar, because sexual abuse of a child is a particularly shameful and outrageous crime. Moreover, at the pretrial hearing it was admitted by defense counsel that Jones’s two previous convictions for burglary and theft would be admissible if he testified. Thus the prosecutor would have been free to question Jones’s credibility, as a convicted felon, Proof of still a third conviction, for a similar sexual assault upon a little boy, would have been of scant probative value as compared to its significantly prejudicial effect on the jury.
Second, defense counsel also asked the trial judge to decide before the trial whether a certain line of inquiry by the defense would open the door to proof by the prosecution that Jones had previously been convicted of a similar sexual offense. Counsel now challenge the judge’s ruling that the proposed inquiry would have let in the proof.
The State meant to, and did, call the witness Spencer to testify that he had seen Jones and the child emerging from a wooded area with their trousers unbuttoned and that the child then told Spencer about the acts leading to the present prosecution. Defense counsel had a written statement in which Spencer had said: “I knew it was Johnny, because I was in the pen with him.” Counsel proposed to cross-examine Spencer about that statement and then show by Johnny’s father that Johnny had not been in the penitentiary at the time Spencer was there. The court ruled that the prosecution would then be entitled to prove that Jones’s penitentiary confinement had been for the prior sexual offense (the burglary-theft convictions having resulted in probation, not imprisonment).
All the facts are not before us, because after the court’s ruling the suggested course was not pursued. We do not disregard the possibility that the proof might not have developed just as counsel expected or that the court might have reconsidered its pretrial ruling, as it was entitled to do. Control Data Corp. v. International Business Mach. Corp., 421 F. 2d 323 (8th Cir. 1970); Nance v. Flaugh, 221 Ark. 352, 253 S.W. 2d 207 (1952). We must nevertheless decide the issue, a new trial being necessary.
We hold that if the proof develops as expected by defense counsel, his proposed inquiry would not open the door to proof of the reason for Jones’s imprisonment. Spencer’s statement that he knew it was Johnny because he had been in the penitentiary with him was not a mere collateral issue, injected only for the purpose of an impeaching contradiction. See Sellers v. State, 93 Ark. 313, 124 S.W. 770 (1910). To the contrary, the statement was an affirmative basis for Spencer’s identification of Jones and therefore subject to refutation without reference to the reason for Jones’s confinement. As far as Spencer’s credibility was concerned, the only relevant issue would be, Was Jones there?, not Why was he there?
Reversed and remanded for a new trial.
Adkisson, C.J., dissents as to the first point. | [
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Per Curiam.
On September 20,1974, this court accepted the voluntary surrender of petitioner’s license to practice law in the State of Arkansas. On January 21,1975, petitioner, on a plea of nolo contendere, was found guilty on two counts of embezzlement and received concurrent sentences of ten years with all but three years suspended. He was paroled in August, 1975, and two years later was discharged from parole. In May, 1980, he was granted a pardon by the governor, based upon the recommendation of the Board of Pardons and Paroles.
Shannon petitioned the State Board of Law Examiners for reinstatement on August 28, 1980, pursuant to the Rules Governing Admission to the Bar, Rule 13, Ark. Stat. Ann. Vol. 3A (Supp. 1981). A subcommittee of the State Board of Law Examiners conducted a hearing on December 29, 1980, and submitted a transcript of the proceedings to each member of the Board without comment. On March 19,1981, the Board, in written findings of fact, found the sequence of events as above enumerated and, also, that petitioner has not made complete restitution (approximately $17,500) to the former client. The Board held that petitioner has failed to meet the burden of proving eligibility for readmission as required by Rule 13. Hence this appeal.
On appeal the findings of the Board are reviewed de novo upon the record. Rule 13. Disbarment proceedings are civil in nature, are governed by rules applicable to civil proceedings and the allegations of a complaint must be proved by a preponderance of the evidence. Weems v. Court Committee on Professional Conduct, 257 Ark. 673, 523 S.W. 2d 900 (1975); and Hurst v. Bar Rules Committee, 202 Ark. 1101, 155 S.W. 2d 697 (1941). Here it follows that proceedings in a petition for reinstatement are also civil in nature. Rules of Civil Procedure, Rule 52, Ark. Stat. Ann. Vol. 3A (Repl. 1979) provides that "[fjindings of fact shall not be set aside unless clearly erroneous (clearly against the preponderance of the evidence) . . . . ” We think this standard of review is applicable here.
Petitioner was admitted to the bar upon graduation from law school in April, 1965. He attributes his misappropriation of a client’s funds to the traumatic experience when his then wife required extensive psychiatric treatment following the birth of their son in 1968 and the attendant expenses. This marriage ended in divorce in 1972. There was another unsuccessful marriage of short duration. However, his marriage (to his present wife) in 1973 survived his emotional and financial problems and his imprisonment. She corroborated his rehabilitation. There are three children. Petitioner made a voluntary disclosure of his wrong doings to the authorities. Since his imprisonment, he has worked at various jobs; i.e., a carpenter, selling farm equipment, where he was entrusted with large sums of money, and is presently employed by the Ozark Legal Services as Director of Community Education. He has become an ordained minister. His employers are highly complimentary and recommended reinstatement. Other witnesses attested to his rehabilitation with respect to his good moral character and mental and emotional stability.
The committee received numerous letters from the public, lawyers and judges in response to its inquiry as to petitioner’s fitness to practice law. He received support from his supervisor and co-workers at Ozark Legal Services, as well as from many lay persons, attorneys and business men in the community. However, the committee also received letters from this segment opposed to the reinstatement. Most of them, including judges, stated they could not recommend nor consider reinstatement until petitioner made restitution. At the committee hearing on December 29, 1980, petitioner had only made partial restitution, due to his limited income, to the estate from which he embezzled funds. Since the hearing, however, he has effected a settlement with the estate and received a release satisfying the judgment against him on the indebtedness. However, he has not paid the Arkansas Bar-Client Security Fund any of the $5,000 it paid to the estate to cushion its loss. Although there is some indication that his inattention and neglect of his practice during 1970-1974 resulted in some indebtedness to other clients, there is no formal complaint to substantiate this.
A disbarment proceeding is not for the purpose of punishment, Maloney v. State, 182 Ark. 510, 32 S.W. 2d 423 (1930), and neither is a proceeding for readmission to the bar. The overriding considerations on the question of readmission are the public interest, the integrity of the bar and the courts with due consideration to the rehabilitation of the petitioner with respect to good moral character and mental and emotional stability.
After reviewing the record de novo, we cannot say the Board’s finding that petitioner had failed to meet his burden in establishing his eligibility for reinstatement to the bar was clearly erroneous.
Affirmed.
Dudley, J., not participating. | [
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George Rose Smith, Justice.
The key question on this appeal is whether the appellants, who own land within the boundaries of the appellee sewer improvement district, are barred by a 30-day period of limitations from recovering damages assertedly caused by the district’s construction of three large sewage-treatment ponds in the vicinity of the appellants’ land. Ark. Stat. Ann. § 20-706 (Repl. 1968). This appeal is from an order sustaining the district’s plea of limitations. Our jurisdiction was invoked under Rule 29 (1) (c).
The district was organized in 1971, but the construction of the sewer system was delayed for several years. In 1975 the district filed this suit to condemn rights of way for roads and sewer lines across the property of the appellants and others. The right-of-way controversy has been settled, but the appellants had filed an answer asking for $96,000 as compensation for the damage caused by the construction of the sewer-treatment facility next to the appellants’ land. The district filed a reply to the appellants’ answer, asserting that the claim was barred because the district had followed the statutes in 1973 by filing its assessment of benefits and damages, § 20-705, that net benefits had been assessed against the appellants’ land, that the assessment of benefits was confirmed after the required two-weeks notice of a hearing had been published, § 20-706, and that the appellants had permitted the assessment to become final by failing to file suit in chancery court within the 30 days allowed by § 20-706. After a hearing on the issue of limitations only the trial court sustained the plea and dismissed the appellants’ claim.
We must sustain the appellants’ insistence that the district’s proof to sustain its plea of limitations was deficient. Unquestionably the burden of proof rested on the district. McCrite v. Hendrix College, 198 Ark. 1149, 133 S.W. 2d 31 (1939). At the hearing its witnesses testified in generalities about a public hearing apparently required by the Environmental Protection Agency, but there was a total want of proof about the district’s assessment of benefits and the appellants’ alleged failure to file a timely challenge. The hearing was held in 1978, but the court’s order of dismissal was not entered until October, 1980. In July, 1981, the trial court denied the district’s motion to supplement the record, finding that certain proffered documents had not been made part of the record. In view of the trial court’s ruling, which is fully supported by the record, we denied a similar motion to supplement the record. Hence the proof is fatally deficient.
There is no merit in the district’s suggestion that the appellants, after having filed what amounted to a counterclaim in the trial court, admitted the allegations in the district’s reply by failing to file a response to that pleading. Such a formal denial was not required either under our earlier practice or under the later Rules of Civil Procedure. See Lay v. Gaines, 130 Ark. 167, 196 S.W. 2d 919 (1917); A. R. Civ. P., Rule 7 (a) and Reporter’s Note 3 thereto.
The judgment is reversed, and the issue of limitations having been disposed of, the cause is remanded for further proceedings. | [
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George Rose Smith, Justice.
Three defendants, Shells, Thompson, and Sanders, were jointly charged, first, with the aggravated robbery of three police officers, committed with a deadly weapon, and second, with first-degree battery in the shooting of two of the officers in the course of the robbery. Shells entered a negotiated plea of guilty and, as recommended by the prosecutor, received two concurrent 20-year sentences. Thompson and Sanders were tried together before a jury. Thompson was convicted only of the battery, with a five-year sentence. The appellant Sanders was convicted of both offenses. The court directed that his sentences of 40 years for aggravated robbery and 20 years for first-degree battery run consecutively. This appeal by Sanders comes to us under Rule 29 (1) (b).
Upon conflicting testimony the jury could have found that the three undercover officers, seated in their car, negotiated a purchase of marihuana from Shells and Thompson, who left briefly to get the marihuana. When they returned, accompanied by Sanders, both Shells and Sanders had pistols. Sanders pointed his weapon at an officer and ordered all three to get out of the car. Shots were fired almost at once by both sides, with Sanders and two of the officers being hit. Despite their wounds the officers subdued their assailants and took them into custody. The facts sustain the conviction for aggravated robbery, which as now defined does not require that anything be taken from the victim. Ark. Stat. Ann. § 41-2102 and § 41-2103 and its Commentary (Repl. 1977).
The trial judge correctly allowed the prosecutor to ask the j urors on voir dire whether they could consider the entire range of penalties, the questioning being materially different from the procedure disapproved in Haynes v. State, 270 Ark. 685, 606 S.W. 2d 563 (1980). The court properly permitted Thompson’s earlier written statement to be used to impeach his testimony, after both he and Sanders had testified. Nelson v. O’Neil, 402 U.S. 622 (1971). Under the ruling in Nelson there was no denial of Sanders’s right of confrontation or of cross-examination.
Sanders argues that his sentence is so much more severe than those of the other two defendants that he should be granted a new trial. Except in capital cases we do not attempt to compare sentences. The legislature is aware that no two crimes and no two criminals are just alike; so a wide range of punishment is often provided to enable the sentencing judge or jury to select an appropriate penalty. Here there is really very little basis for comparison. Shells cooperated with the prosecution by negotiating a plea and testifying for the State. His negotiated plea did not fix a maximum penalty for his codefendants, any more than one plaintiff’s compromise settlement in a civil case limits a coplaintiff’s possible recovery. As to Thompson, the jury could have found that although he was involved in the attempted sale of drugs that led to the shooting, he did not have a weapon and did not actively take part in the attempt to rob the officers. The jury imposed what they doubtless considered to be just sentences, as they were free to do. Foxworth v. State, 263 Ark. 549, 566 S.W. 2d 151 (1978).
Affirmed.
Adkisson, C.J., disqualified. | [
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Smith, J.
In 1871 John- C. Peay borrowed of Rockafellow $4,000, for which he made his promissory note, payable at twelve months with interest at the rate of one and a half per cent, per month. In order to secure payment of this note, his brother, Gordon N. Peay, since deceased, executed a mortgage, which was acknowledged and récorded, upon lots 7, 8 and 9, in block 100, city of Little Rock. The wife of the mortgagor signed the instrument; but her name is not mentioned in the body of it, nor does the certificate of acknowledgment show any renunciation of dower.
In 1874 Gordon N. Peay, in consideration of an extension of time, made his note for the interest due on the original debt and to secure this new debt he and his wile executed and acknowledged another mortgage, conveying lot 12, in the same block; the wife joining for the purpose of relingushing dower.
No' part of either debt having been paid, Rockafellow filed his bill for foreclosure against John C. Peay, the widow, administratrix and heirs of Gordon N. Peay and others.
J ohn C. Peay’s defences were that the note was barred by the Statute of Limitations of five years, and that at the date of the first mortgage he was the equitable owner and in actual possession of lots 7, 8 and 9, he having before that time agreed with Gordon N. to exchange other city property for them, though he had never received his deed; that he had held exclusive and adverse possession of them for more than seven years; and moreover, that these lots constituted his homestead, he then being a married man and the head of a family.
The widow of Gordon N. Peay, who was also the administratix of his estate and the guardian of his children, pleaded that the note made by her husband and the two mortgages were executed without consideration.
The Chancellor decreed in favor of the plaintiff, save as to lot 7, which he gave to John C. Peay as a homestead. The plaintiff and the defendants, John C. Peay and Susan C. Peay, the latter both in her individual and representative capacities, have appealed.
The testimony satisfies us of the following facts: that the legal title to lots 7, 8 and 9 was, at the date- of the execution of the mortgage and had been ever since the year 1854 in Gordon N. Peay, but that he had made an agreement with his brother, John C., to exchange them for lots 4, 5 and 6 in the same block ; that in pursuance of said agreement Gordon received a conveyance of the lots last named from the former owner, under whom John C. held by virtue of an executory contract to purchase, and placed John C. .in possession of lots 7, 8 and 9; that John 0. established his residence on lot 7 as early as 1853 or 1854, and has with his family resided there ever since with the exception of two intervals, namely, from 1856 to 1860, and from 1863 to 1869; and that John C. Peay was living on said lot at the time of the loan and mortgage and this was known to Eockafellow, who was probably misled by the circumstance that Gordon N. held the legal litle.
The remedy against John C. Peay personally is not barred by lapse of time since he has within five years next before the' commencement of this suit promised in writing to pay the debt.
It was not necessary to the-validity of Gordon N. Peay’s note and mortgage that he should have derived any benefit from the transactions out of which they arose. It is sufficient that a valuable consideration moved from the plaintiff to his brother. The consideration for the execution of the first mortgage was a loan, of f4,000 to John C. Peay. And the consideration for the making of the note and second mortgage was a forbearance to press the original security. The debt created by the loan was not his at first. Neyer theless-he could pledge bis property for its payment. The interest which had accrued upon the money lent was only an incident to the debt. But this he has assumed and made his own by his written undertaking. But, according to the view we have taken, Gfordon N. was a mere trustee for his brother as to lots 7, 8 and 9, holding the dry legal title. His mortgage of them by his brother’s procurement and directions was the same in legal effect as if he had conveyed to his. brother, as he could have been compelled to do, and his brother had then mortgaged them to Rockafellow. To assert a claim of homestead, it was not indispensable that John C. Peay should have been invested with the legal title to the premises. An equitable estate was enough. Indeed, it is probable that the homestead exemption withdraws from the demands of creditors whatever interest the claimant has in the property dedicated to that use. Thompson on Homesteads and Exemptions, Secs. 165, 170-3. Bartholomew v. West, 2 Dillon, 293.
John C. Peay could not encumber his homestead to secure repayment of a loan. Constitution of 1868, Art. XII, See. 2; Sims v. Thompson, 39 Ark., 301.
But. there is no proof that lots 8 and 9 were ever used for any purpose connected with the family residence so as to impress upon them the homestead character, although they lay adjacent to lot 7. There were no buildiags upon them and they were at one time leased out for a nursery.
Mrs. Peay has no dower in any of the lots. She has released her dower in lot 12 according to the solemnities prescribed by law. And the value of the remaining lots was estimated in setting out to her her third in all of the lands of her deceased husband.
The result is that the decree of the Chancellor must in all things be affirmed. | [
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Smith, J.
Dorr brought ejectment against the school district for three acres of land, deducing title by deed made to himself in 1874, by Benjamin I. Edwards and wife, for the quarter section, which included the premises in controversy.
The defences were, 1st. Adverse possession for more than the period required by law to ripen a title; and 2nd, a deed of conveyance for the premises made to the defendant’s trustee by the plaintiff’s grantor in 1870. This last deed does not mention any section or township, the description being “s> certain parcel of land lying and being in the county of Independence, commencing at a black-gum tree standing near the road and graveyard, near the residence of Benjamin I. Edwards, running north 40 poles to a stone, thence east 12 poles to a stone, thence south 40 poles, thence west 12 poles to the place of beginning, containing three acres, including said school house and. graveyard.”
A general demurrer to the whole answer was properly overruled; for, leaving out of consideration the defendant’s documentary title, it stated such facts as, if true, showed good right to the land.
Exceptions to th,e defendant’s deed, for uncertainty in the description of the premises because the same had never been recorded, were overruled. A.nd these objections were removed at the trial, which resulted in a verdict and judgment for the defendant.
The evidence was that Edwards had in 1867 proposed to his neighbors to donate the land for the building of a schoolhouse, to be used also as a church, and for the burial of the dead. His offer was accepted; the neighbors built the house, and in 1868 Edwards caused the land to be surveyed and a plat drawn, of which a record was made. In 1870, the neighborhood having been formed into a school district, Edwards and wife conveyed the land to the defendant’s trustee. And it has been ever since in the possession and subject to the control of the successive school directors or trustees, of the district, under a claim of ownership of the absolute title.
' The deed was duly executed and acknowledged, but had never been filed for record. Nor was a school kept there at date of plaintiff’s purchase; since the revenues only sufficed to maintain a school about three months in each year. But plaintiff saw the house and grave-yard and was apprised of the uses to which they were dedicated. He had afterwards himself presided at one of the annual school meetings and had attended others, and had never, to the knowledge of his neighbors, claimed the land, until shortly before June, 1881, when this action was begun.
“A deed is not to be held void for uncertainty, if by any reasonable construction it can be made available. Parol evidence can not be admitted to contradict or control the language of a deed. But latent ambiguities may be explained by such evidence. Facts existing at the time of the conveyance and prior thereto, may be proved by parol evidence with a view of establishing a particular line as being the one contemplated by the parties, when, by the terms of the deed, such line is left uncertain.” 3 Washburn, Real Prop., 3d Ed., 347; See also 1 Gr., Ev., sec. 298.
An ambiguity is patent, that is, apparent on the face of an instrument where the mere reading of it shows that something more must be added before the reader can tell which of several things or persons is meant. As, if a promissory note should omit to mention the sum to be paid; or a testator should leave a legacy to one of the sons of J. S., he having several sons. In such eases the defect is incurable.
Á latent ambiguity arises from facts not disclosed in the , -r-, & t • _ instrument. Eor example: A. grants or devises to B. his home farm. To identify the land, resort may be had to extrinsic evidence, namely, the knowledge of witnesses, who are acquainted with the farm upon which A. then dwelt. Parol evidence has always been admitted to give effect to a written instrument, by applying it to its subject matter; in other words, by proof of the circumstances under which it was made. Bradley v. Packet Co., 13 Peters, 89; Hill v. Felton, 47 Ga., 455; Clarke v. Lancaster, 36 Md., 196; Donley v. Tindall, 32 Texas, 43.
Here the ambiguity is latent. Is the déscription so defective that it is impossible by rhe aid of parol evidence to locate the land? It is in a certain couuty, and in a certain school district, which has definite boundaries, is parcel of the tract upon which stood the residence of Benjamin I. Edwards; contains three acres and is described by metes and bounds, and by visible monuments, to-wit: the grave-yard, the school-house, the highway, corner stakes and an initial tree from which to start. And defendant had gone into possession. A competent surveyor could have found the land without much difficulty.
In conveyancing lawyers commonly follow the system of notation established by the general government, distinguish ing lands'according' to their legal subdivisions. This furnishes a description at once convenient and accurate. But it is not necessary to mention the section, township and range, Cooper v. White, 30 Ark., 513.
When the land' lies in a city or town, the description is usually by reference to the lots and blocks of a recorded plat.
In Brown v. Coble, 76 N. C., 391, the description was by metes and bounds, reference being made for the purpose of locating the calls, -to the order of sale granted in a proceeding for partition. It was there described as a tract of land, of which John Brown died seized and possessed, in the county of Guilford, on the waters of Stinking Quarter, adjoining the lands of --. And the description was held sufficient.
Did the Circuit Court permit the unrecorded deed of Edwards to the defendant’s trustee to be read in evidence without due proof of its execution?
It is a peculiarity of our law that the officer’s certificate to the acknowledgment of a deed has not evidential force until the instrument has been recorded. Gantt’s Dig., sec. 854; Wilson v. Spring, 38 Ark., 181.
There was no attesting witness. Edwards was dead and no attempt was made to prove his handwriting. But the Justice of the Peace, who certified to the acknowledgment and whose certificate could not be read in evidence without record testified that Edwards had in 1870 acknowledged the execution of the deed before him. Upon this the Court'allowed the deed to go to the jury to show the extent of defendant’s possession.
It seems when a document is offered in evidence for a collateral purpose, the admission of the party by whom it purports to have been executed is prima facie proof of execution. Wharton on Evidence, sec. 689.
Color of title may arise under a void or worthless deed. "Yet the deed may be used to explain and define the possession. Roberts v. Pillow, Hempst. Rep., 624, affirmed in error; 13 How., 472; Hamilton v. Boggess, 63 Mo., 233.
Upon the same principle may be justified the admission of the preliminary survey of 1868. True the plat and survey were not annexed nor referred to in the deed, and considering the deed as the sole muniment of the defendant’s title, could afford no evidence in aid of the description of the property. Shirras v. Caig, 7 Cranch, 34.
But they might be important in connection with other proofs, in fixing the origin, date and limits of the possession.
The plaintiff offered but was not permitted to prove, deA A clarations made by Edwards to him at the time of his purchase, to the effect that the house was occasionally used for a school house and church solely by his permission and not as a matter of right.. But Edwards had before that time parted with the legal title to the three acres and no subsequent declarations by him, in the absence of the grantee, could be given in evidence to impeach the validity of the gift and conveyance. Gullett v. Lamberton, 6 Ark., 109; Ryburn v. Pryor, 14 Id., 505; Prater v. Frazier, 11 Id., 249; Merrill v. Dawson, Hempst. Rep., 563; Clinton v. Fstes, 20 Ark., 216; Finn v. Hempstead, 24 Id. 111.
But if we have made a mistaken application of the principles of construction or of the rules of evidence to the facts of this case, we should not send it back for another trial, because the verdict and judgment are right upon the whole record. The defendants have held under a claim of right for more than ten years. Neither actual occupation, cultivation nor residence is necessary to make out a claim of adversary possession. Much depends on the situation of the property and the use to which it is applied. Mooney v. Coolidge, 30 Ark., 655.
Here the premises were applied to the use ior which they were designed and the only use of which they were susceptible.
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Smith, J.
On the 27th of September, 1856, the State Land Agent, for the Helena District, sold to William A. Jones, large bodies of swamp lands, which had been theretofore approved to the State, giving him a certificate of purchase, which recites that the purchaser had paid the price thereof. In 1871 the State, as it appears, re-sold and conveyed to Moses A. Beach portions of the same tracts. Smithee, as agent for the legal representatives of Jones, obtained from the Land Commissioner a refunding certificate as for money erroneously paid into the State treasury. But the Auditor refused to issue warrants upon such certificate, under the Act of March 18,1881.
Smithee thereupon applied to the Circuit Court for a writ of mandamus to compel the Auditor to issue his warrants, but his prayer was denied.
Waiving the question whether Smithee is the proper party to sue, we will consider it as if the personal representative of Jones was before tbe Court.
To entitle the petitioner to this relief, it was necessary to show that the original purchase money was paid by Jones and received by the 'State, under some mistake either of law or of fact. But for aught that appears, the money was rightfully paid. The title to the lands was vested in the State by' Act of Congress, approved September 28th, 1850; they had been confirmed to the State by the action of the proper department of the general government before Jones bought; they were subject to sale, and the land agent was empowered to sell. How if came to pass that no patent was ever issued to Jones and that a patent was issued to Beach, the record does not disclose. But it is plain that whatever remedy Jones’ heirs have, lies against the lands themselves in the hands of the subsequent purchaser and not against the State.
Judgment, affirmed. | [
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STATEMENT.
Smith, J.
This was an action to recover damages for a personal injury suffered by the plaintiff while a passenger on defendant’s train of cars. The accident occurred by reason of the cars leaving the track, inflicting permanent injuries upon the plaintiff by the fracture of his ribs and collar-bone and contusions of the head. And the proximate cause of the cars flying the track is alleged to have been the negligent failure of the defendant to provide and maintain a safe and sufficient track and road-worthy carriages. The defendant denied that the plaintiff was a passenger at the time he was hurt and set up contributory negligence on his part in climbing upon the top of a freight car and riding there, without the defendant’s consent or authority and without the knowledge of the conductor of the train.
Three several trials were had. At the first the plaintiff obtained a verdict for $10,000; at the second, a verdict for $15,170, and at the last, a verdict for $4,000, which was ordered to stand.
The following was the evidence:
On the fifteenth day of October, 1875,- the defendant, the railway, then being completed to Altus, in Franklin county, only, and that being the western terminus of the road, the plaintiff on that day shipped on board of defendant’s train of cars at that point, to be carried to Argenta, a herd of cattle. That the cattle yard where the cattle were put on board of the car was a mile east of the depot at Altus. That plaintiff by requirement of the station agent at Altus, assisted in putting his cattle on the car, which was done by himself and his half brother, Mr. J. A, Hiner, and several train men in the employ of the defendant. That plaintiff was an entire stranger, and unacquainted with any of the defendant’s agents or officers at the cattle yard or depot, or with any of the rules or regulations of defendant. That after the cattle were loaded in the car, and when the train was about to run back to the depot, some one of the train men who seemed to be in charge of the matter — perhaps the engineer — told plaintiff and his half brother to get up on top of the cattle car, and they did so, and the cattle ear was backed up to the depot and put in the train. After arrival at the depot, Mr. Hiner, at plaintiff’s request, got down irom the car and went into the office of the station agent in the depot, and asked the agent for a bill of lading for .the. cattle, and a pass for plaintiff. The agent, Mr. John G. Connell, stepped out upon the platform of the depot, to within eight or ten feet of where the plaintiff was, who was still on the top of the cattle car, and in the presence and hearing of plaintiff stated that no bill of lading was necessary, and that he did not have time to give one, but for plaintiff to go through with the cattle and claim them, and that a pass for plaintiff was not necessary, that his cattle were his pass, and that he always told the conductor when a shipper of cattle was on board.
Mr. Hiner, or plaintiff thén asked the agent where the plaintiff should ride, and the agent said, ‘ ride right where he is,’ or ‘right where you are.’ Very shortly after this, or about that time, some one shouted “all aboard,” the train moved out of the depot toward Argenta. That the conductor of the train was J. W. Buckner, who came to the train just after it was made up and ready to start. That said conductor was not acquainted with the plaintiff, and did not know that he was on the cattle car. That the train was what is called a mixed train, consisting of both passenger and freight cars, and consisted of an engine and tender, two flat cars, one box car, one cattle car, one baggage car and one coach or passenger car, and they were coupled together in the order named, i. e., the cattle' car was between the baggage car and the box car. That when the train reache d a point a few rods east of Georgetown, a flag station, at which the tram did not stop, two of the cars left the track, to-wit, the box car, and the cattle car, next behind it, on which plaintiff was riding, and the front trucks, and possibly the whole of the baggage car, left the track. Neither of the cars turned completely over, but the cattle car turned partly over, and around, so as to be nearly at right angles to the track, with the front end down in the ditch, at an angle of nearly 45°. The cattle were thrown out of the car near the front end of the car, and the plaintiff was thrown off on to the ground. The plaintiff testifies that he tried to get hold of the bell-rope, bpt failed, and seized hold of the running plank, and as the car was turning over, tried to save himself by jumping or stepping off, and thought he could step off but was thrown to the ground. The conductor testified that he did not know the plaintiff, and he was not aware that he was on the train, or that he was riding on top of the cattle car, or that he was on the cattle car at any'time when the train was in motion until after the accident, when he saw him on the ground. That previous to the accident, and when the train had arrived at Piney Station, which is about three miles west of the place where the accident occurred, the train stopped and four sticks of timber, dimensions six by four inches, and about thirty or thirty-two feet long, were loaded on the top of the cattle car. They were put there because they were too long to go into the box car. The cattle car was an open car on the top, i. e., there was no roof or cover to the car, but four or more courses of plank were laid down, running from front to rear, and nailed or fastened to the cross-pieces at top of the car. These were put there for the brakemen to pass from one car to another on. The timbers were designed as side-plates for box cars, and were being carried to defendant’s shop in Argenta, to be used for that purpose in the manufacture of new cars. These timbers were lashed to the before-mentioned planks on the cars. The conductor was present, and superintended the loading of the timbers, and saw the plaintiff on the top of the car, but he testifies that he has no recollection of seeing him there at that time, and if he had seen him there and known that he was the shipper of the cattle, should have thought nothing of it, as it was very proper for him to be on and about the car when the train was at rest, in order to attend to his,cattle; but if he had known that plaintiff had been or was intending to. be Oft ’ said car when the train was running, he should have made him get down and take a seat in the passenger car, for the rules of the company, and the instructions to the agents were not to let any passenger ride on the top of cars or other exposed places. The plaintiff, Miles, testified that while putting the timbers on the car at Piney, a brakeman, or some other of the train men engaged in loading the timbers, said, ‘if that man (meaning the plaintiff) would get out of the way he could load the timbers faster.’ That he (Miles) then stepped back on the baggage car, while the timbers were being put on, and that was said in the presence and hearing of the conductor; but the conductor testifies that he has no recollection of hearing anything of the kind, and if he had should probably have paid no attention to it, as there was nothing in the circumstance so out of the ordinary course of things as. to awaken suspicion of his riding on the ear. The plaintiff further testified that he returned to his place on the top of the cattle car, and continued to ride there from the time the train left Piney until the accident occurred. That after the train left Piney he noticed that the timbers lashed to the car were so long and slipped past each other, so that they sometimes touched the ear in front, and the one behind the car he was on, and the timbers so lashed to the car, so rattled about that he felt .that his position was dangerous, and he determined to get down at the next stopping place and take a seat in the passenger car, even if he had to pay his passage, but the accident occurred before he reached the next station. When the accident happened the first thing that he saw was the car in front of him jumped the track, and the cattle car followed, and he was thrown off, as stated. That he knows nothing and recollects nothing that occurred after he struck the ground until after 4 o’clock that evening, when he came to his senses and found himself at the depot at Russellville. It was further proved that the train, at the time of the accident, was running at about twelve to fifteen miles per hour, which was schedule time. That the track where the accident occurred was straight and in good order, and the cars were all in good condition, so far as any of the company’s agents on the train knew or could discover at the time.
There was a slight depression at a point where two of the rails join on the side the train went off, but all the cars in the train had passed that point some rods before the accident occurred. The box car in front of the cattle ear was new, and was one of a lot of fifteen cars which the defendants had some few weeks before that time purchased from the Litchfield Car Company, and were known as the Litchfield cars. It was noticed about the time of the accident that these cars sometimes jumped the track. That they left the track more frequently than other cars. That new cars are always more stiff and inflexible than old ones, and do not yield and adapt themselves to the variations of the track as readily as old ones. It was found that these cars were made so wide in the spread of the trucks as to give only one-sixteenth of an inch lateral play between the flanges on the wheels of the cars and the track or rail, and the cars were all taken to the machine shops at Argenta and the wheels pressed in, so as to give about one-half inch lateral play instead of one-sixteenth of an inch. The center bearings were also changed or raised, so as to give more play on the side bearings. These changes were made in order to make the cars more flexible, so they could adapt themselves more readily to the track in running.
It was also proved that about one-half an inch lateral play is necessary for safe running of cars, and that without it the rails will bind the wheels, and the danger of flying the track is increased; and that it is unsafe to run a car without lateral play. That if the track was in perfect condition it would be safe to run with one-fourth of an inch lateral play, but that it was unsafe to run ears on the track of this road in the condition it was at that time, with less than one -half inch lateral play, but ear builders and railroad men are not agreed as to the proper amount of play to be given to cars— some preferring and using cars with little or no play, while others prefer and use more play. After the changes in the cars were made, they gave less trouble; but without these changes they would, as all new cars do, have grown less troublesome by time and usage, and the play between the flanges and the rail or track would have increased by use. After the accident this Litchfield car was, as well as the others injured by the accident, taken to the repair shops and repaired, and the wheels were then pressed in, and the play in the center bearings increased. Whether the other Litchfield cars, or any of them, had been so changed previous to this one or not till afterwards was not known. They were not all so changed at one and the same time, but at different times. Some of these cars, perhaps, had never been run when they were changed, and the car in question was not changed on account of its leaving the track on the occasion of the accident, but in pursuance of a resolution of the superintendent of the railway, by the advice of an agent of the Litchfield car company, and that the Litchfield car company has a high reputation for the excellence of their cars, and sell a large number of freight cars. They sell to many companies in this State and others, and the cars so purchased of them by this company were and are excellent cars, so far as workmanship is concerned.
It was further proved by the conductor that the timbers put on the cattle car were green timbers, and would weigh about seventy-five pounds each, and, in his opinion, could have no effect in causing the cars to jump the track. That the top of the cattle car was a much more dangerous place to ride than in the passenger car, and that the plaintiff would not have been injured if he had been in the passenger car. That the cattle car and box car were freight cars, and were not designed or built with the view of carrying passengers, and that the passenger car did not leave the track. It was further proved that it was a violation of the rules and instructions to all the company’s agents for any one except the train hands to ride on the top of a car, or to be there when in motion. No regulation to that effect had ever been posted up or published, because it was thought not to be necessary; but regulations requiring passengers to ride in the passenger cars, and not stand or ride on the platform or exposed places, had been posted up at various times in the cars and depots, and the older parts of the road, but it was not known that any such had ever been posted up at Altus at the time of the accident, or that the same were brought to the attention of the plaintiff.
Neither the station agent, yard master or any other agents of the company, had any authority as such agent or employe to seat passengers, or to control or direct them where to ride, except the conductor of the train; bul it was their duty to give correct information to the public who deal with the railroad, when applied to. It was also proved that at the terminal stations on the road the trains were under the control of the yard master, when there was one, but in the absence of the yard master, the train was under the control of the station agent from the time the train arrived in the depot until the time for it to leave again; and that at the time of the shipment of the cattle by plaintiff there was no yard master at the station at Altus.
The defendant objected at the time it was given to so much of the testimony as stated that when the cattle were loaded on the car the engineer or other agent directed plaintiff to get on the top of the cattle car, but the objection was over ruled and the point was saved by exception. He also objected to so much of the evidence as tended to prove that John GL Connely, the station agent at Altus, directed or gave permission to the plaintiff to ride on the top of the car in which his cattle were being conveyed, on his journey to Argenta, because the station agent did not, either as a matter of law or fact, have any authority to grant such permission; but the court overruled the objection, and an exception was taken.
This Avas the whole evidence except Avhat appertained to the amount of damage to plaintiff, which is omitted, because no error on account of excessive damages is alleged.
The following eight instructions for the plaintiff were given to the jury, against the objections of defendant, and exceptions taken:
1. If the jury find from the evidence that the plaintiff was a passenger on the train of the defendant under a contract, express or implied, and whether for actual pay or as owner, shipper or freighter of cattle traveling under what is known as a drover’s pass, without additional charge beyond the compensation for carrying the cattle, then he was a passenger for hire, and the defendant, undertaking to carry him, is bound to the utmost care, diligence, prudence, skill and vigilance on her part and on the part of her servants and agents.
2. If the jury find from the testimony that while the plaintiff was a passenger upon the cars or train of the defendant, and while the cars and train were under the exclusive control of defendant or her agents or servants, that the cars ran off the track or broke down, and plaintiff was injured thereby, then there is prima fade proof of negligence on the part of the defendant, and sufficient to charge the defendant, in the absence of explanation showing that the accident happened without fault of defendant, and the plaintiff is en titled to a verdict, unless it appear» from the testimony on his part, or the defendant shows by a preponderance or sufficiency of testimony that the plaintiff’s own negligence or misconduct contributed directly to and was the immediale or proximate cause of the injury received.
3. It was the duty of the defendant, as the carrier of passengers, to provide a good and suitable track, adapted to the cars to be run or operated thereon, and also to provide good and suitable cars, adapted to the track, and to so conduct and operate the same, and seat or locate passengers on and over said road so as to transport the passengers safely, as far as human foresight can provide for it, and if the jury find from the testimony tnat there was a defect in the track or in the machinery of the train on which the plaintiff was a passenger, or that the cars and track were not adapted to each other, and that in consequence of either of these defects the cars were broken or thrown from the track, and while the plaintiff was improperly seated or located therein without fault on his part, whereby the plaintiff was injured; or the cars were overloaded, or so improperly loaded as to cause them to be broken or thrown from the track, whereby plaintiff was injured, and that on the part of the plaintiff there was no such negligence or misconduct as contributed directly to and was the immediate or proximate cause of the injury received, then the jury will find for the plaintiff.
4. Contributory negligence is some act or omission on the part of the plaintiff tending to produce the injury complained of, and in order to bar or prevent the plaintiff from recovering, the negligence or misconduct on his part, must be the direct and proximate or immediate cause of the injury, and so nearly connected with it that the defendant, by the exercise of ordinary cafe and skill, could not have avoided the injury; and if the jury find from the testimony that the plaintiff was riding on the top of the car by the direction and with the permission of defendant’s agents or employes or servants, expressed or implied, who in giving such direction or permission acted in relation to their ordinary employment or in the scope of their agency, and that the plaintiff was injured because of an accident to the train while thus riding, and becausejof his being on top of the car, without other fault or negligence on his part, then his conduct did not amount to contributory negligence, and he is entitled to recover.
6. If the jury find from the testimony that the plaintiff was riding upon the top of the car by the direction of or with the consent of the agents or employes of defendant, who in giving said direction or consent acted in the due course of their employment, although such action of the agent or employe is against the rules of the defendant, and such rules had not been made known to plaintiff, he is not guilty of contributory negligence and is entitled to recover.
7. ■ If the jury find from the testimony that the accident to the train which occasioned the injury complained of was in no way caused by the plaintiff’s agency, but that said accident was caused solely by defects in the machinery of the cars, or by defective road bed or track, or by any negligence of defendant or her employes, and that the plaintiff did not contribute directly or proximately by his own negligence or want of ordinary care and caution to the injury received by him, they will find for the plaintiff.
8. The jury are the judges of the credibility of the witnesses, and of the weight and sufficiency of the testimony, and if they find the weight or preponderance of testimony in favor of the plaintiff, they will find in his favor, and for ’such amount of damages as the testimony may warrant, and and in assessing the damages they may consider not only the damage suffered by the plaintiff from the time of the injury up to the commencement of this suit, but also all the dama ges proceeding continuously from the injury up to this time, and which it is reasonably certain from the testimony that he will suffer in the future, including a fair compensation for any physical and mental sufferings he has already suffered, caused by the injury, and any permanent reduction of his power to earn money or pursue his ordinary vocation or business.
On the part of defendant the following instructions, numbered from one to sixteen, inclusive, were demanded, to-wit:
. 1. That this is an action for the recovery of damages for injuries received by plaintiff whilst a passenger on defendant’s train from Altus to Argenta.
2. That the main issue involved, and upon which the plaintiff’s right to recover must ultimately turn, is whether the injuries complained of were attributable to his own negligence, misconduct, or fool-hardiness as it is sometimes expressed in the law boobs.
3. The question of contributory negligence is one of mixed law and fact, and in passing upon it the jury are bound by their oaths and the law of the land to take the law as given them by the Court, and not to decide it according to their notions of what the law ought to be.
4. That the law requires of all common carriers of persons everything necessary to their security reasonably consistent with the business of the carrier and appropriate to the means of conveyance employed by him to he provided, and that the highest degree of practical care, diligence and skill shall be adopted that is consistent with the mode of transportation used; and to this extent the law requires the rule to be rigorously enforced, as a protection to the traveler and as a warning to the carrier against the consequences, negligence, and delinquency in his duty.
5. But while this stringent rule is, rigorously enforced against the carrier, there are still, certain, risks which are in curred by the passenger, and for which the carrier is not responsible. These are 'the casualties which human sagacity can not foresee, and against which the utmost prudence can not guard, and every passenger must make up his mind to meet the risks incident to the mode of travel he adopts, which can not be avoided by the utmost degree of care and skill in the preparation and management of the means of conveyance; and to submit to the privations and restraints and observe and conform to the provisions made (and enforced for his safety and protection.
6. That where one by his own folly, fault or negligence has brought upon himself an injury, he can claim no compensation for it from another, is a principle of universal application; and it is equally true that if his imprudence or negligence has so materially contributed to the injury that but for such imprudence or negligence it would not have occurred, he can claim no recompense from another, who has been instrumental in causing it, unless the latter, upon the discovery of the danger into which the party had placed himself by his own fault or folly, could, by the use of due diligence, have prevented or avoided the occurrence.
7. The Court further instructs that it is negligence as matter of law for a passenger to climb on the top of a freight car and ride in that position, when there was a car in the same train provided expressly for passengers, in which he was at liberty to ride. And if the jury believed the plaintiff was in such position when he was injured, and would not have been injured if he had been in passenger car, then his carelessness in riding in the position was the cause of his injury, and he can not recover, notwithstanding, the jury may find that the accident by which the plaintiff was injured was caused by the carelessness of the company’s agents.
8. To- entitle the plaintiff to recover in this actioh it must-be-proved that his injury was caused by the negligente of the company’s agents towards him as a passenger; that if in the train upon which he was injured there was a car or cars provided for passengers, and other cars provided for stock or other freight, the undertaking of the company is as common carrier of passengers in the passenger car or cars, and of cattle or other freight in the car provided for freight, and the company does not undertake to be responsible for the extra hazard of passengers being or riding upon the cattle or other freight cars, and if the plaintiff was injured while so riding, or being upon a freight car, and he would not have been injured by or through the same cause or causes if he had been in the passenger car or cars, then his injury was occasioned by such extra hazard, and he cannot recover.
9. If the jury believe that the plaintiff^ Miles, went upon said train or cars at the time mentioned in his complaint, with the view of becoming a passenger, and was then of mature age and ordinary intelligence, and also believe from the evidence that there was in said train a car provided for passengers, then the law conclusively presumes that the plaintiff'knew that it was his duty to apply for a seat in said car, and cannot be permitted to set up ignorance of such duty.
10. That the custom of shippers of stock to ride in or upon the cars in which their stock is being conveyed, if any such custom has been proven in this case — which is a question for the jury — such custom does not affect the liability of the company to such person being injured while in that position. If such a shipper rides in or upon the cattle car when there is a passenger car provided for all passengers, he assumes the extra risk, if any, of one riding in such a position, and cannot recover, notwithstanding such custom,
11. Notwithstanding the jury may believe that the plaintiff was not negligent in riding upon top of said freight car, they cannot find a verdict against defendant upon the. absence of such negligence alone. Negligence on the part of the company as the cause of the injury must be fully proved, and if the jury believe from the evidence that the accident which occasioned the injury was the result of a defect in one or more cars in the train, nevertheless, if they believe from the evidence that the company had no knowledge at that time of such defect, and could not, by the utmost care and diligence, before the time, have discovered any such defects, then the verdict must be for defendant.
12. Notwithstanding the jury may find from the evidence that one or more cars in the train were defective, if they further find from the evidence, that such defect did not cause the accident which occasioned the injury, then such defective car or cars cannot be imputed as a ground of negligence, and the jury must disregard such evidence of defective cars in making up their verdict.
13. That the custom of shippers of cattle to go or send an agent along to care for and attend to the cattle, does not impose upon the company liability for the extra hazard, if any, which attends them in riding upon the cattle cars. As to such persons the company assumes the same liability only which she is under to all passengers, and if the jury believe from the evidence that the plaintiff was on top of the cattle car when he is said to have been injured, then the law in relation thereto is the same as it he were in that position without being a shipper of cattle on the train.
lá. The jury are instructed that there is no evidence in the case to sustain a verdict for the plaintiff, and the jury are directed to bring in a verdict for the defendant.
15. That if you believe from the evidence that no leave yras in fact given to plaintiff by the local agent at Altus, to remain and continue to ride on the cattle car, and that the conductor was not aware of his being a passenger on the train, or of his riding on the cattle car until after he received the injury complained of, you should find for the defendant!
16. That if you find that there is a conflict of testimony as to whether the plaintiff had such leave from the local agent, or as to the conductor’s knowledge of plaintiff’s ridiDg on top of the car, it is your peculiar and sole province and duty to pass upon the question of credibility of the witnesses whose testimony is conflicting, and in doing so it is your duty to take into consideration their several and respective interestedness and disinterestedness in the result, and the relations they sustain to the parties, and in case you find it impossible to reconcile their testimony so as to accépt them all as true, and that they stand equal in every other resp'ect, you should give credit to those who are wholly disinterested in preference to one who is interested. In other words, the Court instructs you that when there is a conflict in the testimony of witnesses those who are creditable and entirely disinterested are entitled to more credit than those who are interested.
These instructions the Court gave to the jury, except the seventh, eighth, ninth, tenth, thirteenth and fourteenth, which the Court refused, and exceptions were signed. The Court then modified and altered the seventh, eighth and thirteenth of defendant’s instructions, and as so modified and altered, gave them to the jury, and exceptions to the. same by defendant were duly signed.
The seventh instruction was modified and changed only by inserting the word “voluntarily,” after the word “passen- ‘ ger,” in the second line.
The eighth instruction was modified only by inserting after the word car or “cars,” the words “ unless otherwise impliedly or expressly agreed
The thirteenth was modified by inserting after the word “ears,” without instructions or consent of duly authorized, agents.”
■ The Court then, of its own accord, gave the following instruction to the jury, to which an exception by the defendant was duly signed, to-wit; “That the question as to whether the conductor, station agent or other officer or employee of the company had authority to permit the plaintiff to ride on the cattle car, is a question for the jury, and if the said agents, or any of them, had such authority, then if such agents gave such permission, or knew that the plaintiff was riding on said car, and did not direct him to take a seat in the passenger car, then it was not contributory negligence for him to ride there, and the jury must find for the plaintiff, if they further find that the accident which occasioned the injury was caused by the negligence of the defendant’s agents.
The following points were, at the instance of defendant, submitted for the jury to find upon, specially, under the statute :
1. Did plaintiff, after returning from the stock yard on the cattle car to the depot at Altus, voluntarily and of his own accord remain upon it until he received the injuries complained of near Georgetown, twenty or thirty miles distant - from Altus ?
2. Was there a passenger car attached to the train in which he was at liberty to ride with the rest of the passengers, if he had chosen to do so ?
3. If he had taken passage in the passenger car, and remained there except when called upon to look after his cattle, would he have escaped the injuries occasioned by the accident to the cattle car on which he was riding at the time?
4. Were the injuries received attributed to plaintiff’s voluntarily taking passage on top ot the cattle car, instead of in the passenger car?
5. Did plaintiff’s neglect to avail himself of his right to ride in the car provided for passengers, contribute to the injuries he received ?
6. Was plaintiff riding on the cattle car at the time of the accident by the permission, direction or authority of the conductor?
7. If in your general verdict you find for plaintiff, state whether or not you find from the evidence that plaintiff was ridiDg upon the cattle ear at the time of the accident by or with the assent, permission, direction or authority of defendant’s agent, state whether such assent, permission, direction or authority was that of the agent in charge of the depot or of the conductor in charge of the train.
The jury found a general verdict for plaintiff, and assessed damages at $4,000.
To the first special interrogatory they answer, “No,”
To the second they answer: “There was; but the agent instructed him to ride upon the top of the cattle car.”
To the third they answered: “ Yes.”
To the fourth they answered: “No.”
To the filth they answered: “He rode as agent directed.”
To'the sixth they answered: “No; but by direction of the agent at depot.”
To the seventh they answered: “The jury believe that plaintiff was riding on the cattle car by the direction and authority of defendant’s agent at the depot.”
■ The court overruled a motion to disregard the general verdict, and give judgment for the defendant on the special findings under the statute.
A motion for new trial was overruled, and defendant excepted. ’
■ The grounds for new trial were:
1. Because the verdict of the jury was contrary to and not sustained by sufficient evidence.
2. Because the verdict was contrary to law and the instructions of the court.
3. Because the court erred in admitting, against the objections of the defendant, the testimony of R. W. Miles, the plaintiff, and one J. A. Hiner, to the effect that John G. Connelly, employe and station agent of the defendant, directed or gave the plaintiff permission to ride on the top of the car in which his cattle were loaded, on his journey to Little Rock.
4. Because the court erred in giving the jury the first, second, third, fourth and sixth, seventh and eighth instructions asked for by plaintiff.
5. Because the court erred in refusing to give to the jury instructions numbered seven, eight, nine, ten, thirteen and fourteen, prayed for by defendant, and in modifying and giving to the jury so modified and altered, the seventh, eigth and thirteenth of said instructions, and in giving to the jury the instruction which the court gave upon his own motion and at his own instance.
OPINION.
The plaintiff was a passenger for hire, notwithstanding he traveled upon a drover’s pass. He had the same rights and was under the same obligation to conform to the reasonable rules and regulations of'the company as if he had bought his ticket. Railroad Co. v. Lockwood, 17 Wall, 357; C. P. & A. R. R. Co. v. Curran, 19 Ohio st., 1; O. & M. R’y. Co. v. Selby, 47 Ind., 471; Maslin v. B. & O. R. Co., 14 W. Va., 180; Blair v. Erie R’y. Co., 66 N. Y., 313.
Carriers of passengers by the powerful and dangerous of steam are held to the highest degree of care and are responsible for the smallest negligence. P. & R. R’y. Co. v. Derby, 14 Howard, 486; Steamboat New World v. King, 16 Id., 474; Taylor v. Grand Trunk R’y. Co., 48 N. H., 329; S. W. & W. R. R. Co. v. Boddely, 54 Ill., 19.
The fact that the cars left the track is prima facie proof negligence on the part of defendant. Feitall v. Middlesex R. Co., 109 Mass., 720, and cases cited.
Yet the absence of reasonable care and caution on the part of an adult plaintiff will prevent a recovery, It is the duty of a passenger upon a railway to form himself of the company’s regulations for running its trains. Pittsburgh, C. & St. L. R’y. Co. v. Nusum, 50 Ind., 141; Southern R. Co. v. Kendrick, 40 Miss., 375, and cases and authorities there cited; Penn. R. Co. v. Langdon, 92 Penn, st., 21; Cheney v. Boston & Maine R. Co., 11 Met., 121.
Another duty is to occupy a seat inside of the car provided for passengers when a seat is to be had. The conductor is charged with the administration of these rules and doubtless if the passenger rides in an improper place, for example, in the baggage, express or postal car, or in a caboose attached to the train or on the platform, by the conductor’s permission, or with his acquiescence, this would exempt the passenger from blame, and in case of accident to him resulting from the company’s negligence, he might recover damages. O’Donnell v. Alleghany Valley R. Co., 59 Penn. st., 239; Carroll v. N. Y. R. Co., 1 Duer, 571; Dunn v. Grand Trunk R’y., 58 Me., 187; Jacobs v. St. Paul & R’y. Co., 20 Minn., 125; Creed v. Penn. R. Co., 86 Penn. st., 139. Washburn v. Nashville & C. R. Co., 3 Head., 638.
In Indianapolis R. Co. v. Horst, 93 U. S., 291, the facts were these: The plaintiff a drover, in charge of cattle upon a train, was directed by the conductor to get out of the caboose and get on top of the train, as the caboose was to be detached and another caboose was to be attached at some distance further up the road. The train was at rest and the plaintiff did as he was told. By a violent jerking and backing of the train, the plaintiff was thrown down between the ends of two cars and received injuries for which he recovered a verdict for $8,000. And the judgment was affirmed upon the ground that, although the top of a freight car in the night was a perilous position, yet the drover, when commanded to go there, had no choice but to obey, or leave his cattle to go forward without any one to accompany and take care of them.
But there are certain portions of every railroad train which are so obviously dangerous for a passenger to occupy and so plainly not designed for his reception that his presence there will constitute negligence as a matter of law and preclude him from claiming damages for injuries received while in such position. A passenger who voluntarily and unnecessarily rides upon the engine or the tender, or upon the pilot or bumper of the locomotive, or upon the top of a car, or upon the platform, cannot be said to be in the exercise of that caution and discretion which the law requires of all persons who are of full age, of sound mind and of ordinary intelligence. Railroad Co. v. Jones, 95 U. S. 439; Doggett v. Illinois, &c., R. Co., 34 Iowa, 284; Robertson v. N. Y. R. Co., 22 Barb., 91; Downey v. Hendric, 46 Mich., 498; Spoonor v. Brooklyn City R. Co., 36 Barb., 217; Camden & Atlantic R. Co. v. Hoosey, Supreme Court of Peun., Feb’y. 20, 1882, reported in 7 Railway Age, 481, and to be reported probably in 99 Pa. st.
The test of contributory negligence is: Did that negligence contribute in any degree to produce the injury complained of? The jury found that a passenger car was attached to the train, in which plaintiff was at liberty, if he had chosen, to ride, and that he would not have been injured if he had taken a seat in it. This is conclusive against the right of re covery, unless the directions of the station agent lor him to ride on the cattle car alters the case.
In Lygo v. Newbold, 9 Exch., 302, the plaintiff contracted with the defendant to carry certain goods for her in his cart, The defendant sent his servant, who, without the defendant’s authority, permitted the plaintiff to ride in the cart. On the way the cart broke down and the plaintiff was injured. It . was held that the defendant was not liable. That case is distinguishable from the case under consideration in two points: the defendant was not a common carrier and he had neyer contracted with the plaintiff to carry her.
In Eaton v. Delaware, etc., R. Co., 57 N. Y., 382, the conductor of a coal train had invited a person to ride on the train contrary to the regulations and he was injured through the negligence of the defendant’s employes. The Court reversed a judgment for the plaintiff, holding that the conduc - tor had no power to take the plaintiff upon the train in such way as to bind the defendant, because it was outside the scope of his agency.
To the same effect is Robertson v. N. Y. & Erie R. Co., 22 Barb., 91, where an engineer had permitted a person to ride upon his engine, and he was badly injured while riding in that position.
Both of the cases last cited hold that, as there is no presumption ol law in favor of the right of a person to ride in an unusual or perilous place upon a train, the onus is upon him to prove that the agent had authority from the company to grant him permission to ride there.
The rule is firmly established that the master is civilly liable for the tortious acts of his servant whether of omission or commission, and whether negligent, fraudulent or deceitful, when done in the line of his employment, even though the master did not authorize, or know of Such acts, or may have disapproved of or forbidden them. Wharton on Negligence, sec. 157 et seq. But the act must be done not only while the servant is engaged in his master’s service, but it must pertain to the particular duties of that employment.
A reference to a few adjudged cases will make plain the qualification of the rule.
In Wilton v. Middlesex R. Co., 107 Mass., 108, the plaintiff, a girl nine years old, was walking in company with several other girls upon the Charleston bridge about 7 P. M., when one of the defendant’s horse-cars came along very slowly and the driver beckoned to the girls to get on. They got on the front platform, and the driver struck his horses, which made them suddenly start, whereby plaintiff lost her balance and fell, one of the wheels passing over her arm. It was admitted the plaintiff was not a passenger for hire, and the driver had no authority to carry her .unless such authority was implied from his employment. The Court said: “The driver of a horse-car is an agent of the corporation having charge in part of the car. If, in violation of his instructions, he permits persons to ride without pay, he is' guilty of a breach of his duty as a servant. Such act is not one outside of his duties, but is within the general scope of his agency, for which he is responsible to his master. The invitation to the plaintiff to ride was an act within the general scope of the driver’s employment and if she accepted it innocently, she was not a trespasser. It is immaterial that the driver was acting contrary to his instructions.”
In Flower v. Penn. R. Co., 69 Pa. St., 210, an engine with the tender and one freight ear had been detached from a train and was stopped at a water station. The fireman requested a small boy standing near to put in the hose and turn on the water. While he was climbing on the tender to do this the other freight cars belonging to the train came down without a breakman, and struck the car behind the tender. The boy fell and was crushed to death. The Court held that the company owed no special duty to the boy, saying: “The case turns wholly on the effect of the request of the fireman, who was temporary engineer. Did that request involve the company in the consequences? The fireman, through his indolence or haste, was the cause of the hoy’s loss of life. Unless his act can be legally attributed to the company, it is equally clear the company was not the cause of the injury. The maxim quifaoit per alium facit per se, can only apply where there is authority, either general or special. It is not pretended that there was a special authority. Was there a general authority which would comprehend the fireman’s request to the boy to fill the engine tank with water? This seems to be equally plain without resorting to the evidence given that engineers are not permitted to receive any one on the engine but the conductor and fireman or superintendant; that it is the duty of the fireman to supply the engine with water; that he has no power to invite others to do it, and can leave his pest only on a necessity. * * * It is not like the case of one injured while on board a train by the sufferance of the conductor, whose general authority extends to receiving and discharging persons to and from the train.”
In Snyder v. Han. & St. Joe R. Co., 60 Mo., 413, a parent claimed damages for injuries received by an infant child while attempting to get upon one of defendant’s cars. The petition alleged an invitation from the defendant’s servant in charge of the car to the child, but showed no authority in the servant to permit persons to ride on the car, and no connection between such invitation and the service which the servant was employed to render. And the petition was held to be fatally defective.
An agent cannot increase his powers by his own act. They must always be included in the acts or conduct of his principal, Marvin v. Wilber, 52 N. Y., 270. And a prin cipal is not liable for acts of the agent beyond the sphere of his duty. The employment of an agent for a particular purpose gives only the authority necessary for that agency under ordinary circumstances, or the authority usually exercised by similar agents. Cox v. Railway Co., 3 Exch., 268.
Now it is not incident to the employment of a station i agent to assign seats to passengers upon a train. That is business of the conductor. It is not within the apparent scope of the powers of a station agent His duties and the nature of his office do not call for any intendment that he is authorized to give directions on this subject which will bind the company. Tucker v. St. Louis, etc., R’y. Co., 54 Mo., 177; A. & P. R. Co. v. Reisner, 18 Kan., 458; Cooper v. N. Y. C. & H. R. R. Co., 6 Hun., 276; Stephenson v. N. Y. & H. R. Co., 2 Duer., 341.
There is no evidence in the record that he had any such authority as a fact. And the law will not imply it.
All that is left in this case is a question of practice, where the jury return into court special findings of facts which are inconsistent with their general verdict. The statutory provisions upon this subject are as follows:
“A special verdict is that by which the jury find the facts only. It must present the facts as established by the evidence, and not the evidence to prove them, and they must be so presented as that nothing remains to the^Court but to draw from them conclusions of law.
“ In all actions the jury, in their discretion, may render a general or special verdict, but may be required by the Court in any case in which they render a general verdict, to find specially upon particular questions of fact to be stated in writing- This special finding is to be recorded with the verdict.
“ When the special finding of facts is inconsistent with the general verdict, the former controls'the latter, and the Court may give judgment accordingly.
“When the facts in a special verdict are insufficiently found, the Supreme Court may remand the cause and order another trial to ascertain the facts.” Gantt’s Digest, Sections 4678, 80, 1106.
On the trial special issues were submitted to the jury, and in addition to the general verdict for the plaintiff findings upon these issues were returned into court. The jury found that the plaintiff was riding on top of the.cattle car when he was injured; that he rode there by the instruction of the station agent at Altus, and by no other authority; that a passenger car was attached to the train, on which he was at liberty to ride; and that if he had taken passage in it, and had remained there except when called upon to look after his cattle, he would have escaped injury.
Upon the special findings the defendant moved the Court for judgment, notwithstanding the general verdict, which was in favor of the plaintiff, but the motion was overruled. It should have been granted. The . special verdict expresses the ultimate facts of the case, and is conclusive upon both parties. The two verdicts being inconsistent, the special verdict controls .and displaces the general verdict. Leese v. Clark, 20 Cal., 387; Thompson v. C. S. & C. R. Co., 54 Ind., 197; Hall v. Harlow, Sup. Ct. of Indiana, dicided October, 1879; Lemke v. C. M. & St. P. R’y. Co., 39 Wis., 449; Davis v. Town of Farmington, 42 Wis., 425; Brown v. Ferguson, 4 Leigh. 37.
The judgment must therefore be reversed, and the Court below directed to enter judgment for the defendant upon the special findings. | [
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Smith, J.
This was a- hill in equity for a new trial upon the ground that the Court had, in an action at law, without fault of the plaintiff, deprived him of his constitutional right of appeal, by failing to pass upon his motion for new trial during the term at which its decision was rendered.
The appellee, Bergman, had brought replevin for five bales of cotton before a Justice of the Peace against appellant and one Alexander De Valcourt. He recovered judgment in the Justice’s court, and again on appeal, in the Circuit Court. Appellant applied for a new trial in due time, but the further consideration of the motion was continued until the succeeding term of the court, when it was overruled. Appellant then brought the case here, where his appeal was dismissed because the lapse of the term without disposing of his motion for new trial, had deprived the Court of all power over it.
Bergman then sued out an execution, which was levied upon the property of appellant, who seeks to enjoin the execution of said judgment.
Courts of Chancery will direct a new trial after a judgmeirfc at law, when the complainant can show, first, that his adversary has obtained an advantage that cannot be conscientiously retained, as that a successful plaintiff had no cause of action, or an unsuccessful defendant had a meritorious defense; second, that his own conduct has been free from fault and unmixed with negligence; third, that, owing to some fraud, accident or mistake, not imputable to him or his attorney, he was not present at the trial, nor able'to make his defence there; or if there, that he was prevented from'!moving for a new trial because the Judges dispersed or the term lapsed before it could be made or disposed of; or that, on account of the existence of some o.ther peculiar circumstance, he is without -remedy at law.' The subject is learnedly discussed in a note to 19 American Decision, 609.
The rule was recognized and applied by this Court in Leigh v. Armor, 35 Ark., 123, where the Judge was suddenly taken ill, and for that reason the motion for a new trial was left undecided.
In Oliver v. Pray, 4 Ohio, 175, where a party had failed to give a sufficient appeal bond, owing to the mistake or omission of the clerk who took it, and the Supreme Court had for that reason quashed the appeal, a new trial was granted on the appellant’s showing probable ground that he had a case at law.
The counsel for Bergman suggests that, as the record entry shows a continuance of the cause without objection on the part of Vallentine, the only accident that there could have been about it was the ignorance of Valentine or his counsel that the judgment became final after the end of the term. But as the continuance does not appear to have been granted upon the application of either of the the parties, it will he presumed to have been done of the Court’s own motion, for some cause that appeared satisfactory to it, as a want of time to consider it before adjournment. It is the act of the Court, which ought not to prejudice the rights of any one.
The only remaining question is whether the bill shows that the defendants in the original action had a meritorious defense. From the transcript of the record and proceedings attached to the bill, which includes a bill of exceptions setting out the evidence adduced on the former trial, it appears to have been a contest between parties, one of whom claimed to hold the proceeds of the cotton in controversy under a landlord’s lien, and the other under a mortgage of the crop executed subsequently to the lease. The Circuit Court decided that the mortgagee held the superior lien, "Without prejudging the merits, there is a sufficient probability that the Court committed, an error to warrant another trial.
The decree, dismissing the bill, is reversed and the cause remanded with directions to overrule the demurrer to the bill, and for further proceedings.
DISSENTING OPINION BY | [
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Eakin, J.
In this case it is most convenient to make such statements of the facts, pleadings and proceedings as may be necessary to explain the points as they rise. To this end a succinct history, embracing matters not controverted will be useful.
In January, 1867, G-arland H. Dorris died intestate, leaving a widow and three small children, two of whom died soon after, whereby the complainant, Maggie E., who was the survivor, became the sole heir to all his estate, and entitled to all the personalty, saving the rights of the widow and.creditors. No question is made in this case of any rights claimed through the mother as such.
He left a large plantation in Jefferson county, including the residence, which for convenience, we will designate as the Hardioick, place; and a smaller, but still valuable plantation called the Greenfield place, which had come to him by inheritance from Nancy Hardwick, who had herself died leaving a debt unpaid.
On the 28th of January, 1867, his widow was made administratrix, and thenceforth acted under the advice of defendant’s intestate, Thos. S. James, an attorney at law. On the 22nd of May she filed an inventory and appraisement' of the personal property, footed up with the amount of $8,245, which was an error in calculation, the true amount being $8020. The choses in action reported were two notes of Wilkins & Bro., April 20, 1866, for $1000, and one oí Thomas ■ Dorris, Feb. 18, 1867, for $3,391.
At the October term, 1867, she asked and obtained permission of the Probate Court to ship the cotton crop of 1867 to Moses Greenwood & Son, of New Orleans; and in January, 1868, obtained an order to keep the property together for the benefit of the estate during the year 1868, and was ordered to render her account of the profits at the January term, 1869.
Before that time, and without ever having made any settlement, she intermarried with James, on the 23rd day of December, 1868. He procured letters de bonis non to himself at the January term, 1869, resided upon the home place with his wife and her daughter, and continued, as administrator, the management and control of the estate, as he had virtually done before, as the counseller and attorney of the widow. No guardian of the infant was then appointed.
His wife died on the 16th of July, 1872, and he was very soon afterwards appointed guardian of the heir. No administration was ever had of the wife’s estate.
At the following January term he presented to the Probate Court a petition showing that when he became administrator, in 1869, the estate was largely in debt; that the only available property consisted in the plantation; that to have sold the property would have resulted in insolvency of the estate, or that it was considered probable; that inasmuch as his wife had owned the estate, and her children were the only heirs, the Court ■had ordered him to keep the property together and cultivate it and try to pay off the debts, he having agreed to use his own means for the purpose, and having actually done so to the extent of twelve or fifteen thousand dollars. He then asked inasmuch as he had his own stock on the place, that he be allowed to keep and cultivate the plantation, charging himself with a rent of $3000 for the year 1873, which was represented as a fair valuation, deducting costs of usual repairs. He promised .in his .petition to file a settlement showing the estate largely indebted to him; represented that it was indebted to himself alone, as he had paid off' all the claims, partly with assets of,the estate, and partly with his private means; and that after the first year he could rent the place at public auction.
The petition was granted on condition that no allowance would be°.mad(3 for repairs, and that the plantation should be returned in as good condition, usual wear and tear excepted.
Accordingly on the 5th day of June, 1873, he filed the promised settlement, which was the first ever made, bringing it down to the 1st of April, 1873. It is out of this settlement that all the important matters in controversy in this case arise. He accompanied it with an explanation attached, showing that inasmuch as no sale of the personal property had ever been made, the estate having been kept and managed under the general order of the Court, and inasmuch as a great deal of the property , which had been appraised, at high prices, was dead, and no settlement had been made by the’ former administra- . trix,. he . had adopte.d the mode of settlement offered, by ..’charging himself with two-thirds of the appraisment ¿filed by the .widow,--alio whig one. third for . her .dower, and charging himself with interest, and upon each item of assets, and crediting himself with interest on payments, both at the rate of six per cent.
He reported further that he had found the estate insolvent, the plantation out of repair and in bad condition; and the heir being the child of his wife, he had undertaken to repair it and pay it out of debt; that for six years he had advanced all of his private means for the purpose, even selling his real estate, and that the money for which he only charged 6 per cent., was worth to him 15. He did that, “being perfectly willing,” as he says„ “to make a fair settlement, and giving the estate all the benefit of the difference of interest.”
Reserving further comment on this settlement, the errors of which it is claimed, run through and effect the subsequent ones, it is sufficient for the rest to say: that he failed to file any settlement in 1874 ; but did file am nual settlements each April, afterwards in the years 1875, 1876 and 1877, which, with the first were all duly confirmed without exceptions. Each settlement begins with a balance of credits shown by the former, making a new rest for interests, and thus there appears m the last a balance of $15, 424.60, to the credit of the administrator. At the same time with the filing of the last settlement he presented another petition to the Probate Court, showing this indebtedness of the estate to himself, and how it had'been incurred, that the clear income of the lands was about $3,000; that the minor was now a young lady of 15 years, and required'to be sent off to school and educated and maintained in a style suited to her condition in life, which would require $1,000, per .annum; and that it would require many years.to pay off" the indebtedness. Further, that she w;as indebted .to -him as her guardian, for advances, and that. ..the ....estate owned a large quantity of lands worth about $40,000, much of which was unimproved and burdened with a heavy annual tax. He asks an order to sell so much of said lands as might be necessary to pay the debt, reserving the plantation and selling only unimproved lands and the Greenfield place. The petition was granted, in accordance with the prayer, and an order made, designating the lands to be sold.
At this stage of the proceedings the heir became dissatisfied. R. W. Trimble was appointed her guardian on the 23d day of July, 1877, and soon afterwards filed this bill in her behalf, charging fraud in the management of the estate, and in the settlements; alleging that in truth James was indebted to it; and seeking to re-open the settlements and re-state the accounts. During the proceedings the defendant James died and the complainant married. The husband D. L. Trimble joined as party complainant, and the suit was revived against Neel, who became at the same time administrator of both estates, that is of James and of Dorris.
The bill was answered at length, denying, or explaining the several specifications as to fraud; and insisting that the administration of James, although confessedly irregular, had been i.n ’good faith directed to the true interests of the minor; that the administrator had made it his'primary object to protect the estate and. save it for her, which he had done at great personal sacrifice. That a large amount of the charges against him had been assumed, in the settlement, out of generosity, and with a desire thereby to reach a result, which, on the whole, might be equitable, disregarding legal technicalities, which had been disregarded throughout; that the sole heir being the daughter of his wife, he had rather regard ed her interests than the rules of law, andbad in fact -so managed as to save her a large estate, which otherwise would have proved insolvent. He submits that his settlements are just and liberal, but if not, and if he be held to a strict legal settlement, he submits that he be allowed those charges which he was not legally bound to have assumed, but which he did assume in settlement, to make it liberal, just and equitable in the result.
The cause was heard upon the pleadings, exhibits and a great mass of testimony as to details and specific items, involved in the controversy. The Chancellor upon the whole case found for the defendant, and deeming there was no equity in the relief sought, dismissed the suit. Trimble and wife appealed.
The principles which should govern Courts of Chancery in interfering with the proceedings and adjudications of the Courts of Probate in the administration of estates, have been announced upon several occasions, by this Court, since the adoption of the Constitution of 1874. See the cases of Osborn et al v. Graham, 30 Ark., 66; Reinhardt v. Gartrell, 33 Ib., 727; Mock et al v. Pleasants, 34 Ib., 63; Nathan v. Lehman et al, 39 Ib., 256.
When settlements have been duly confirmed, the ders of confirmation nave the force and effect of iud£-. ments, which, if erroneous, may be corrected by appeal. But the original jurisdiction of the Probate Courts is elusive, and no other Court, save in the course of appeal, can impeach or control their action for mere error. Courts of Chancery, however, may interfere to correct fraud, or relieve against accident, or upon some other ground of acknowledged equity jurisdiction, to prevent irremediable mischief. Such interference to extend only so far as to effect the object.
xhe question presented in this ease is, has there been any fraud practiced by the administrator, by which the complainant has been so inj ured as to invoke the aid of a Court of Equity. Mere errors, unless sufficiently gross to raise the presumption of fraud, will not suffice. But fraud itself, whether actual or intended, or without base motive, practiced against the policy of the law; or in other words, constructive fraud, will suffice.
In general, the security of property and the peace of the community require, that, save in appellate proceedings, settlements should not be disturbed, where substantial justice has been done. Or even when it has not, when the errors have been legal or technical, untainted by actual fraud, and unaffected by practices however honestly intended, which the policy of the law will net permit. The Judges of Probate Courts are not required to be men learned in the law. As a general thing they, and administrators also, are more apt to be distinguished for business common sense, and a rude sense of justice and fair dealing between man and man, than for technical learning. In many cases, also, administration settlements partake largely of the nature of family adjustments. This is not proper, of course, and upon appeal the Probate Courts will be held to a strict pursuance of the law. But when not so corrected, if they remain liable to attack, and readjustment afterwards, when time may have obliterated the memory of details, and witnesses may be dead, and documentary evidence and private memoranda may be lost, no man, not an accurate lawyer, could, with safety to- himself, undertake the settlement of an important estate.
' ’ The bill makes thirty-eight specifications of fraud in the first settlement, which, by the answer, are denied, explained or justified. Of these it is enough now to say that a, great number of them are sustained by the proof, or admitted'as matters of fact, in the answer. They are mostly oí this nature. During the administration of Mrs. Dorris, and afterwards, during his own, James, acting in behalf of the representative of the estate, compromised, or bought in for less than their probated amount, a great many large claims against it, which he afterwards charged in his settlement of 1873 at their full value at six per cent.; thus showing a large balance in his favor. His counsel contend here, tbatin’doing this he only exercised the right to invest his own money as any other business man might have done, and that no fraud was intended, but rather a benefit to the estate, the liabilities of which were not thereby increased. But on the other hand the estate gained time, by which a sale -was prevented, and it was saved from insolvency. Of this intention and of this effect, there is no reason to doubt. Under the circumstances disclosed by the transcript we would be loth to say that there was on his part, any motive to commit a breach of confidence, or avaraeious desire to enrich himself at the expense of his step-daughter. We are not sure that he has done so even if his settlement be allowed; because he raised the funds by borrowing at ruinous rates of interest, and by sales of his property. There is also a moral certainty, that the estate would not have paid these debts in full, if the strict course of law had been pursued, which the creditors might have compelled; in 'which ease the heir would have been impoverished, instead of having yet a handsome estate, with a liberal income.
Conceding all this, the transactions were such as from public policy, the Courts of Equity can never allow, but must sternly regard as constructive fraud, and correct whenever properly appealed to for the purpose — regard less of motive. As the adviser of Mrs. Dorris whilst administratrix, and as administrator d. b. n. after his appointment, he stood in a fiduciary relation to the estate to save as much of it as possible, to make a speedy settlement, and to pay the claims as far as practicable — to the last cent if possible, and to save the heir what the creditors might abate. This was in the line of the duty he had assumed. The line of his interest in speculating upon the claims was to prolong the settlements, depreciate the claims, harrass the creditors by delays and impediments, and when paid, to deprive the heir of all advantage in the discounts. No one can be allowed to assume a position in which his interests are antogonistic to his duties, and derive a personal benefit from it. However firm the virtue of individuals may be, human nature as a general rule cannot endure the test, and equity, for security, removes the temptation by the inflexible rule, that all profits of the trustee, saving, perhaps, reasonable compensation, must enure to the benefit of the cestuisque trustent. The heir has the right to the correction of all such items, upon such terms as the Court may deem equitable.
Many of the specifications are not fraudulent in themselves, nor are the others which would be, fully sustain-in every instance. The administrator in the first settlement assumes the burden of incorporating his wife’s administration with his own, and begins by charging himself with two-thirds of the value of the appraisement, upon the erroneous footing of the total. He charged himself further with two-thirds of the Dorris note, and of the rents of the Hardwick place for the years from 1867 to 1872 inclusive, upon the estimate of $3000 a year (being $2000); and with two-thirds of the rents of the Gr eenfield place for the years ’71 and ’72 upon an esti mated rental value of $500 a year (being $666.66). It is charged that this was fraudulent, as, assuming his wife’s liability, he should have charged himself with the whole of the appraisement, and the whole rents, at a higher value, not only during his own administration, but hers also.
There was certai n ly no fraud in this. Even if the administratrix had been accountable for any rent, or James had been so accountable, as the husband of the widow, after her marriage, it would not have been for more than two-thirds of the value, as to any of the lands; her dower having never been assigned. Gantt’s Dig., Sec. 66; 8 Ark., p. 9. But really with regard to the Hardwick place, including the mansion house and lands attached, the widow had never been liable for any rents whatever. (Gantt’s Dig., Sec. 2227 and 8 Ark., supra). It is not the duty of the widow to demand her dower until she may choose to claim it. She may rest in possession of the mansion and farm attached, free of rent, and enjoy one-third of the rents of other lands until those interested in having her confined to a more specific claim, may take steps to have her dower assigned. This is, primarily, the duty of the heir, or the guardian, if the heir be a minor. Gantt’s Dig., sections 2239-40-41. James did not become the guardian of the heir until after the death of the wife.
This right of the wife, although likened to the common law quarantine, is not derived from it. It is created by statute and governed by its terms. There is nothing to indicate an intention that it shall exist durante viduitate alone. It exists “ until her dower shall be laid off and assigned,” and there is no more reason for contending that it shall cease with marriage than that her dower shall. 'With regard to the personal property and choses • also, the widow’s right to a thir.d was unquestionable, and passed to her husband on marriage. By the law as it then existed, the whole of the choses in action were subject to debts. But the estate has proved to be solvent at last, and the claim is made here against the estate of James, not by a creditor, but the heir.
So far from any fraud appearing in the charges made against himself as to this personalty and rents, the surprising thing, upon any theory of bad faith in James, is that he made any charge against himself at all for the rents of the Hardwick place for the years from 1867 to 1872, inclusive. They involve many thousands of dollars, and he would not have been liable for a dollar of the amount on strict settlement. After the death of his wife, in July, 1872, neither place had any rental value for the remainder of the year. After 1872 he was properly chargeable with full rents on both places.
The estimated values of the rents, contained in this and subsequent settlements, seem at first view rather low as compared with the evidence, but they are not without evidence to support them; and taken in connection with the deliberate judgment of the Court in fixing the rent for one of the years, by a special order, at the same amount, and considering that the burden of repairs was assumed, we do not feel inclined to disturb them.
The charges of fraud made as to the subsequent settlements, regard interest on the balances, which are calculated upon the face or probated value of the claims, and compounded at each settlement. This was, of course, wrong, and must be corrected equitably. The administrator is entitled only to actual advances, with simple interest at six per cent, till repayment, without intervening rests. The charges as to low rentals are repeated for the subsequent years.
~We are unable to believe, notwithstanding the egregrious errors of those settlements and the irregular management of the whole administration, from beginning to end, that any fraudulent design was ever entertained by James of injuring his step-daughter; and it is yet a matter of very grave doubt rvhether, upon the whole, she has not been saved from poverty by his mistaken proceedings. Certainly his actions have not been those of a crafty, avaricious man, endeavoring to swallow up the estate; for if he meant that he would not have unnecessarily burdened himself with such enormous charges. He says they were gratuities, and they were doubtless made to cover any improper credits per contra, so as to make what he believed to be a fair and equitable adjustment between the estate and himself.
Although his credits are in law fraudulent, and must be so held; yet there would, in the absence of actual fraud, be no equitable ground of relief, unless there had been injury also. Besides, Courts of Equity can always mould the relief they extend, and impose equitable terms for its exercise.
Whoever asks equity must do equity. It would i . -,, be as unjust to allow the heir to avail herself these gratuitous charges intended for equalization, exact a strict settlement in all other respects, as it would be to allow the administrator to claim his excessive credits, even if he had only charged himself with what he legally should.
His honor, the Chancellor, was, on the whole case, 7 77 7 the opiuion that no equity had been made out. cannot determine whether or not the complainant entitled to relief until we find how the balance would stand upon correction of erxors on both, sides. If such a statement should show no material diminution of the balance charged on the last settlement against the estate, it would appear that there had been no injury, othei’wise the decree should be reversed. For this purpose a cross-bill is not necessary. Where the defendant seeks no positive relief against the complainant, but only to annuli the equities he claims, or to modify the relief, seeking nothing beyond the dismissal of the bill, it may be made by way of defense.
Let there be a reference to the Clerk and Master to ■ state an account upon the principles herein announced, and with the following directions; using for the purpose the pleadings, exhibits and proof contained in the trans-script, and bringing it down to the same period with that of the last settlement confirmed by the Probate Court.
DIRECTIONS ON REFERENCE.
Charge the administrator with two-thirds of the true footing of the appraisement bill, and of the Dorris note of the date of filing the same by his wife, the first administratrix.
Also with two-thirds of the value of the rents of the Greenfield place each year from the year 1867 to 1872, inclusive, estimating the values of the rentals for 1871 and 1872 as fixed by the settlement of 1873, and including all the years as above, during which said place was actually occupied, or should have been rented by the administrator, and in which the rents were of value. Charging no rents at all for the Hardwick place before the year 1873.
Also charging full rents on both places from 1873 onwards, adopting the values found by the Probate Court.
. Also all other items than those above mentioned, charged by the administrator against himself.
Let all bear interest from tbe date of receipt, tbe rent at the end of each year at six per cent, without rests until the period of balance.
AND GIVE CREDIT:
For all sums of money, or value of property, actually paid out by the administrator for the benefit of the estate, or upon probated claims, regardless of the face value of the allowances. If any claims have been settled by the use of means of the estate not charged in the inventory and appraisement, give credit only for the balance. This is specially directed to the note of Wilkins & Bro. In determining these payments examine the testimony as to the specified items of excess, and with regard to credits not questioned, use the items and amounts,contained in the confirmed reports.
Allow interest on all payments or just credits at six per cent, without rests, and strike a balance, showing the state of the account, whether for or against the estate, and the difference in the result from that reached by the Probate Court.
With regard to all matters which may arise in stating said account, concerning which no specific directions are here given, the clerk will be governed by the principles announced in this opinion, and conform the settlement to them as near as .may be. Commissions to be allowed according to the statute.
Until the coming in of said account all other matters will be reserved.
On the coming in of the Master’s report, the following final opinion was delivered :
Eakin, J.
Upon the filing of the Master’s report in this case, exceptions thereto have been filed by the appellants. They also petition the Court for a reconsideration of some of the directions given upon reference, resulting from the first opinion. This has been done after the usual time for filing motions for reconsideration, but. as it has been done during the same term, and as the former opinion was given with a view to an interlocutory order of reference, the petition may very properly be considered.
Before doing that, however, or taking up the exceptions, it may properly be remarked that we are not now engaged in settling the account of James with the estate, with any view to a money decree in his favor for any definite amount, nor with a view of charging him-if it should be found that he is indebted. The Court has not directed his accounts to be surcharged and falsified, or reformed from the beginning. The simple question to be first determined is: Did the Court below err in dismissing the bill ? This Court had recognized much in the settlements which was fraudulent in law, but was further of the impression that there was no actual mala jides, and also that the administrator had, with a view to making a settlement, which on the whole might be just, charged himself with much that he need not have done. It became important to ascertain whether or not the heir had been injured by the mode of settlement adopted, in order that the action of the Court below might be tested by that consideration. This Court upon its own motion and for its own enlightenment, brought the services of the Master to aid it in details, not to base a decree upon his findings as if a reformation, or surcharging and falsifying of the accounts had been ordered, but to be better enabled to determine whether injustice had been done, by comparing the settlements as made, with such as ought to be made if the accounts were re-opened. The Court might have done this of itself and rendered a decree at once, but the labor would have been long, and mostly of a clerical character. It was simply a scheme adopted by this Court, in the exercise of its equity powers, to attain most readily the ends of substantial justice, in view of the peculiar circumstances of the case. The question, suspended for the report, now recurs again. Was the decree below, on the whole case, inequitable? If so, it must be reversed and the cause remanded for a restatement and reformation of the accounts in the Chancery Court, that the result may be made the basis of a final decree there, or certified to the Probate Court for further proceedings. If on the other hand, it be not, upon the whole, inequitable, then as heretofore intimated, this Court will sustain the Court below in declining to interfere with settlements originally made in the proper exclusive forum, and there confirmed without appeal, when no substantial injury has been done.
We are asked to reconsider so much of the former opinion as holds that the widow of Dorris was not bound to account to the estate for the rents of the home plantation whilst her dower had not been assigned. We think this has been well settled in this State by statute and decisions. Gantt’s Digest, Sec. 2227; Carnal v. Wilson, 21 Ark., 62; Mock, et al. v. Pleasants, 34 Ark., 63. The last case is specially in point. A widow administratrix was charged with fraud in not accounting for the rents and profits of a plantation, before her dower was assigned. This Court said she was under no obligation to do so. “They belonged to her, as widow, and not as administratrix. If the plaintiffs desired to have any part of them applied toward payment of the debts, they should have adopted the proper means to have had her dower assigned to her.’5 Such have been the decisions of other States under similar statutes; cited in Carnal v. Wilson, supra; Ita lex scripta est. With regard to the justice or policy of the law, or its hardship to heirs we have nothing to do. These are considerations for the legislature. The rights of the children in the devolution of the property of deceased parents depend wholly on that body. We would be much at a loss in fixing a period at ■which the right of the widow should cease, short of her assignment of dower.
If the widow was not bound to account for these rents and profits during life, then her husband was not, in settling her accounts as administratrix, or his own as administrator. Nor does it alter the case that if accumulated in her hands they would have passed to her child as distributee. It is not the administrator of her estate that is sought here to be charged, but the administrator of the estate of Dorris, to-which estate they never belonged. We adhere to the opinion that upon a strict settlement the administrator should not have been charged with these rents.
It is respectfully submitted, also, that this Court erred in permitting James to take credits for pavments made by Mrs. Dorris during her administration. Nothing has yet been definitely permitted, but we have thought it reasonable in making such enquiries as may enable us to see the substantial justice of the case, to consider how far the charge made against James for assets received by his wife as administratrix, might be abated by proper application of that fund, made by her before it came to his hands.
Passing to the exceptions to the Master’s report we notice such of them as do .not depend on the modifications of the opinion as requested.
It is urged that the Master erred in crediting James with the taxes upon the property of the estate, during the years 1867 to 1872, inclusive, whilst the widow was in possession of the rents and profits. There are no special directions as to this in the opinion. It vras not - brought in any manner to the notice of the Court. The report is in accordance with the general directions, but if there be a mistake in this item it is just to consider it.
The general rule of law certainly is that pernancy of rents and profits is the criterion of the primary obligation to dis charge the taxes. Perhaps this modern statutory quarantine of the widow may present an exceptional case. The right, as is well said by counsel, is altogether a peculiar one, and must be considered in its peculiar aspect. It is not an estate in land with any certain duration. The property belongs to the heirs, subject to the payment of debts, and either the heirs or the administrator may by proper proceedings der .termine it at once, and supplant it with dower. It may not last a year and certainly cannot be apportioned. The administrator or heir may properly pay the taxes in such case. .1 have never known a case in which they have been disallowed as credits, nor have I ever before known the question to be raised Does it alter the case, if the widow’s occupation is protracted? If so, how long? When does the obligation to pay taxes begin? We confess that it seems to us a grave thing to disregard the otherwise universal rule as to pernancy of profits, but its application to the case of the widow’s occupancy is attended with embarrassments quite as grave, inasmuch as it may go far to encumber a benefit which the legislature intended she should enjoy without any conditions. It must always be remembered that the disposition of the property of decedents is wholly under legislative control, and it has indicated no intention to impose this burden on the widow as the price of her privilege. We prefer to waive this question until we ascertain whether its determination can affect the case. For the present we only remark that the taxes were paid on the whole estate, which consisted largely of property not occupied by the widow, and we have not the data for their apportionment.
It is excepted that the Master allowed James too great a credit on a certain claim alleged to have been settled with Bowe, Eussell & Co., and which he had been allowed in the Probate Court. The Master made his estimate upon a note for $2519.00, and allowed in his credits interest from due, at the rate of 10 per cent. It appears from a transcript, made Exhibit “G” of the complaint, that the note had in margin the figures $2519, but in the body the words “two thousand and nineteen dollars.” Preceding that is another allowance to the same parties on an open account of $219.95 The note, as to interest, reads, “with interest at 10 per cent, per annum for value received.” Immediately following the copy of the note, and a memorandum of its allowance by the administratrix, is the affidavit of one of the firm, that “the sum of two thousand five hundred and nineteen dollars, the within demand is justly due.” This is followed by a memorandum of its allowance by the Judge, and its classification in the 4th class. The full entry of the Probate judgment is not given in the transcript. It is contended that the words in the body of ihe note should govern, and that interest after maturity should have been only 6 per cent. We recognize the rule that words in the body of an instrument should, in the absence of proof of misprision, govern figures in the margin, but we are satisfied from the transcript, or at least think there is reason to believe, that the body of the original note agreed with the figures, and that the clerk in transcribing omitted the words “five hundred.” He had just entered the allowance for 219 dollars, and the similarity of numbers might have led him into an inadvertent error. The mind unconsciously tends to repetitions of formula. The true amount also appears in the affidavit which supports the figures, and leads to the supposition that there was no discrepancy between the figures and the body of the original note. Such an affidavit could not have been made if the body of the note were as transcribed. Again, if the judgment of allowance had been for the smaller amount it would have been in the interest of the complainants to show that by a transcript.
. An effort has been made to clear this point by a' certiorari to the Circuit Clerk to send up the judgment of the Probate Court, and a correct copy of the original note, “issued as evidence” in this case — suggesting the absence of them as diminution. The Clerk of the Circuit Court responds that he sends herewith “a full, true and complete transcript of the diminution suggested,” and attaches thereto a copy of the proceedings of the Probate Court certified by its Clerk. We may take this as indicating that the transcript from the Probate Court was used as evidence in the Chancery Court in this cause. Probably the original record of the Probate Court was used as evidence on the hearing, and this mode is now adopted of importing it into the record of this cause. This is mere conjecture, however, and we are not prepared to sanction the practice. If we could look at it, it would appear that the body of the note conformed with the figures and that the judgment followed it. We prefer, however, to discard it. The transcript should have been made and filed in this case below, to make it part of this record. We are reasonably well satisfied from the original transcript that the omission was a misprision. When the judgment was rendered it had not been decided that a note bearing more than statutory interest bore only 6 per cent after maturity unless the conventional interest be expressed to run after maturity.
It was very doubtful on principle when the judgment was rendered or when the note was paid. It would not do • at this late day to deprive an administrator of a credit for a payment made in good faith, with ten per cent,, continuing after maturity, by virtue of a subsequent decision of this .Court in another case. Such action, carried out in all cases, would be very disasterous in its consequences.
Upon consideration of its exceptions, we think the report subserves the purpose for which it was directed, and sufficiently advises us of the true equities of the case.. It shows a credit in favor of James of $18,795, being $3,371 ih ex cess of the amount allowed him by the Probate Court. .Even- were we to make deductions from his credits, as .given by the Master, of the excess claimed to have been allowed him improperly on the note of Bowe, Russell & Co., and also of the taxes paid on the home place during the widow’s occupancy, by any reasonable apportionment on .such data as we have, it would not materially diminish the allowance by the Probate Court.
We think, upon the whole case, that the Court below did not err in dismissing a case which, if prosecuted to the end, would have led to no results beneficial to the complainants.-
Upon the other hand there were things done by the administrator which courts of equity cannot sanction, whatever may have been his intent. Public policy requires their condemnation and discouragement. They invited litigation, and a long and expensive litigation has been necessary to disclose the fact that it should be fruitless. The complainants ought not to bear the burden of this.' The whole costs of the Court below, and of this Court, including the Master’s report, should be imposed upon James. We think it a mistake in the Court below not to have done that as a matter of manifest equity.
DIRECTIONS FOR FINAL DECREE.
Modify the decree of the Jefferson Circuit Court in Chancery so as to impose the whole costs of that Court upon the estate of James, and let it be in other respects affirmed. Let the whole costs of this Court be decreed against the same party, including an allowance to the Master, which the Court here fixes at the sum of two hundred and fifty dollars, as reasonable.
Smith, J.,
differed from the majority of the Court as to the principles upon which the administrator’s account should be restated, and took no part in the subsequent proceedings, .but has filed no dissenting opinon. | [
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English, C. J.
In September 1881, William M. Nance, as administrator of the estate of Elizabeth Willis, deceased, sued William H. Halliburton, in the Circuit Court of Arkansas County for $202.66, alleged to have been collected by him in 1875, as attorney for plaintiff’s intestate, and not paid over.
A demurer was interposed to the complaint on the ground that no demand of the money before suit was alleged ; the court sustained the demurer, and gave plaintiff leav.e to amend by interlienation, which was done. Defendant then moved the court to require plaintiff to verify the complaint as amended, the motion was oyerruled, and defendant excepted.
Defendant then answered the complaint. The substance of the defense was that Mrs. Willis, in her life time, had drawn an order on defendant, and his partner, Brinkley, for the money collected by them, as her attorneys, of Johnson & Davis, in favor of C. A. Slead; and that they had accepted the order, whereby the right to the money was transferred to Slead, and plaintiff as administrator of. Mrs. Willis, had no cause of action!
The court found from the evidence introduced at the trial, that Slead was the agent of Mrs. Willis, and that the order was drawn by her in his favor, as such agent for collection, and was not intended to transfer the debt to him ; and declared the law upon the facts to be (the court sitting as a jury) that plaintiff was entitled to recover, and rendered judgment in his favor, as administrator, for the amount claimed, with interest, &e.
It was proved that the order had not been paid after acceptance, that Slead died with it in his possession, and that after his death, there being no administration upon his estate, it was delivered by a member of his family to Mrs. Willis, and her administrator produced it in court at the trial.
Defendant moved for a new trial, which was refused and he took a bill of exceptions and appealed.
I. Every pleading must be verified by affidavit, (Gantt’s Dig., See. 4591) but the court may permit amendments to be made without being verified, unless a new and distinct cause of action or defense is thereby introduced. Ib. 4624.
Eo new and distinct cause of action was introduced into the complaint by amendment permitted by the court below in this ease. The action was for money collected by appellant as attorney, and not paid over. The complaint omitted to aver demand before suit, and the omission, a mere fault in pleading, was cured by the amendment.
II. Be it said to the credit of appellant, his purpose in permitting himself sued, and making defence, seems not to have been to avoid accounting for money collected by him as an attorney, but to protect himself against the order drawn by Mrs. Willis upon him and his partner, in favor of Slead, and accepted by them. But the order being in favor of her agent, and merely for collection, as found by the court below, was no legal transfer of the debt to the agent, and the •debt remaining,unpaid at her death, her admidistrator had the right to collect it, as the court declared the law to be.
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STATEMENT.
ENGLISH, C. J.
This was a bill to redeem land sold under a trust deed. The bill was filed in the Circuit Court of White county, January 22d, 1881, by B. H. Abbott, against J. L. Dailey, Wm. Clark and L. B. Mitchell, alleging in substance:
That plaintiff, on the 10th of April, 1879, executed to defendant Mitchell, a trust deed upon the South part of the North East quarter of section Eight in T. No. 5 N. R. 9 W., containing 60 acres, situate in White county, to secure to Mitchell the sum of about $45., payable 15th of October, 1879. That by the terms of the deed, Mitchell was made trustee, and empowered to sell the land, on default of payment of the debt at maturity, on his own premises, or at the Court House door, after giving public notice, &c., and out of the proceeds pay the debt and expenses of the trust.
That after advertisement, Mitchell sold the land, on its premises, February —, 1880, without causing it to be appraised, and defendant Hailey became the purchaser for $55, when the land was worth $400.
That defendant Clark was residing on the land and cultivating for the year, 1880, about forty acres thereof; which was improved, as tenant of, or purchaser from Dailey. Whether Mitchell had executed a deed to Dailey, under the trust sale, or not, plaintiff was not informed.
That the annual rent of the land was of the value of $100, and for the time it had been occupied and cultivated by Clark plaintiff had been damaged by being kept out of its use and occupation.
Plaintiff claims the right to redeem the land from the trust sale, and tenders and offers to bring into Court $75, or any sum required for redemption.
Prayer that the trust sale be set aside, and’that plaintiff be allowed damages, and $100 for use and rent of the land for the year 1880, to be deducted from the amount required for redemption.
The bill professes to make the trust deed an exhibit,, but it is not in the transcript.
Two days after tbe bill was filed, the defendants, by attorney,- entered their appearance, and by consent of the parties the canse was submitted to the Court upon complaint, and the Court made an order that the clerk be appointed special master to audit and take an account, on testimony, of the rents, profits and damages, &c., in the case between the parties, and report at the next term of the Court, to the end that plaintiff be permitted to redeem the land.
At the July term, 1881, the clerk, as master, made a report, that in accordance with the decree rendered at the. last term, he procured the attendance of witnesses at his office, upon whose sworn statement of facts, he submitted the following:
Due Abbott upon sale of land, 11.95
For rent, $50 per year, 2 years, 100.00
Value of barn logs, .... 50.00
Value of 4000 rails at 50 cts. per 100, 20.00
Damage to place by destruction of timber, 100J50
Making ...... $281.95
“"Would report the costs at $16.75.”
The defendants Dailey and Clark filed the following exceptions to the master’s report on the day it was made (28th July, 1881):
1. The rents and profits of the land reported by the master are in excess of the amount actually due, and not supported by the testimony.
2. The master has charged defendants with the value of barn logs and rails alleged to have been removed from the premises, when under the order of reference he was only authorized to enquire and report as to the value of the rents and profits; and evén if the barn logs were re moved from the premises as alleged, plaintiff cannot recover the value thereof in a proceeding of this kind.
3. The damages reported by the master for cutting and removing timber are excessive and are not sustained by the proof.
After the filing of these exceptions, plaintiff asked and obtained leave of the Court to amend the bill by interlineation, stating the nature of the damages as follows: “and for the time the land has been occupied by said Clark, plaintiff has been damaged to the amount of $300 by the moving of barn logs and rails from said land, and the unnecessary cutting and destruction of timber thereon.”
This amendment of the bill was permitted by the Court against the objection of defendants. Thereupon they .'asked leave to answer the bill as amended, and that the cause be again referred to the master with instructions to take proof as to the alleged removal of the barn logs, rails, and destruction of timber, but the Court refused them permission to answer the bill as amended, &c., and they excepted.
Final decree was rendered 9th of August, 1881.
The decree recites among other things, that the debt secured to Mitchell by the trust deed was $39-r-that he sold the land under the conditions of thé deed on the — day of February, 1880, and that it was purchased by defendant Dailey for $55, and that he sold it to defendant Clark, and that Clark was in possession of the land, and had been ever since the trust sale, and had been using and cultivating the same, and had damaged the land by moving barn logs and rails, and the unnecessary cutting and destruction of timber, and carrying the same from the premises, and that plaintiff asked the right of redemption, which he was permitted to do, he having tendered the defendant the amount necessary for that purpose, &c.
After making these recitals, the decree further states that the Court sustained the exceptions to the Master’s report, and corrected and restated the account thus :
The balance of sale of land after deducting expenses, $5.00, . . . . . $11 00
Two years rent of land, ..... 90 00
Barn logs,. . . . . . . . . 50 00
Rails,........ 20 00
Costs, . . . . . ., . . 16 75
Total amount .... $188 75
The decree then proceeds thus:
“It is therefore ordered adjudged and decreed by the Court that the said tract of land be, and the same is hereby redeemed from said sale; that defendant’s title to the same, or either of them, under and by virtue of said sale, purchase or deed under said trust sale, be, and the same is hereby set aside, and held for naught to the end that the plaintiff be reinstated with his title to said land, the same as if there had been no such sale. And that plaintiff have and recover from defendants said sum .of one hundred and eighty dollars and seventy-five cents, with interest at 6 per cent, per annum from this date, with costs of this suit; and the possession of said tract of land on the first day of January next, and that order and execution issue therefor.”
Defendants excepted to the decree, and Dailey and Clark obtained grant of appeal by the Clerk of this Court.
OPINION.
It is alleged in the bill that the land was not spld by Mitchell, the trustee, and beneficiary in the deed of trust, at either of the places named in the deed, and that it was not appraised before sale, as required by the act of March 17th, 1879; (A.cts of 1879, p. 94). The bill however, does not ask that the sale be declared null and void on account of such irregularity, but treats it as a valid sale, and claims the right to redeem the lands from Dailey, the purchaser at the trust, sale, and Clark, his vendor, and offers to bring into Court the sum required to redeem. No tender before suit is alleged, nor does it appear that any money was paid into Court.
I. The bill as framed when filed, did not allege that apt • pellant, Clark, had committed waste by removing barn logs and rails, and unnecessarily cutting timber from the land.
Appellants did not deem it necessary to answer the bill as framed. They consented that the cause might be submitted to the Court upon the complaint, which was, in effect, an admission that its allegations were true. The Master charged them with his estimate of the value of barn logs and rails removed and timber cut. On exceptions to this report, appellee was permitted to amend his bill, by alleging damages from removing barn logs, rails and cutting timber. Appellants were refused leave to answer the bill as amended.
This was error. The Court to some extent countervailed this error, in reforming the Master’s report, by omitting the charge of $ 100 for the destruction of timber; but it allowed to stand the charges for barn logs and rails, and to that extent appellants may have been prejudiced by the error.
II. The court found, as shown by the recitals of the cree, that the debt secured to Mitchell by the trust deed was $39, and the expenses of sale, $5, making $44. Appellant Dailey paid for the land at'the trust sale $55., which was $11 in excess of the amount of the debt due to Mitchell and the expenses of sale, which it must be presumed he received, and for this excess of $11 he alone is accountable to appellee Abbott. Yet the Court below rendered a decree against both appellants, Dailey and Clark, for the excess, which was an error.
III. The appraisement and redemption act of March 17, 1879, provides that where land is sold under a mortgage or deed of trust, it may be redeemed by the mortgagor at any time within one year from the sale thereof, by payment of the-amount for which said property is sold, together with ten per cent, interest thereon, and cost of sale. See 1.
In his bill appellee offered to pay into Court any amount of money required to redeem, but submitted that it should be deducted from the rents and profits of the land which he claimed. The Court decreed to him $90.00 for rent against both appellants, Dailey and Clark, but required him to pay into Court no redemption money, and gave credit for none upon the rent. This was error.
XV. Counsel for appellants submits that appellee was not entitled to rent. As long as the right of redemption ex-the mortgagor is entitled to rent, if the mortgagee is in possession, taking the rent* and profits. The statute prolongs the.mortgagors right of redemption for one year after the sale. The purchaser at the sale takes the place of the mortgagee, and if be takes possession of the land before the period of redemption expired, there is no good reason why he sbould not be accountable for the rents and profits. On redemption he gels the purchase money wnh interest at ten per cent. His vendor occupies no better position. 2 Jones on Mortgages, Sec. 1118.
V. It is moreover submitted by counsel for appellants, in a bill to redeem, Chancery has no jurisdiction to de7 v ° cree damages for waste, but the mortgagor must resort to an action at law.
The mortgagor’s right to hold the mortgagee to account for rents and profits of the mortgaged premises, or for waste done to them, must be enforced in equity and not by suit at law. Ib., sec. 1116; Seaver v. Durant, 39 Vermont, 103.
For the errors above indicated, the decree must be reverse ed, and the cause remanded, with instructions to the Court below to permit appellants to answer the allegations of the bill as amended as to damages occasioned by removing barn logs and rails from the land in question, and for further proceedings in accordance with the principles and practice in equity, and not inconsistent with this opinion. | [
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STATEMENT.
Eakin, J.
On the 27th of November, 1871, John Driver filed his petition in bankruptcy, in the District Court of the "W estera District of Arkansas, with schedules of 'his debts and assets. The former consisted of a single item of $800, due Dodson, Stanley & Co., reported as secured by a deed of trust on his cotton crop and a small tract of,land, the fractional S. W. J of section 5, in T. 6, N. Range 3 East. This, with the N. W. J section 8, as the effects of the petitioner, was transferred to the assignee in the usual form.
It does not appear that any thing was done under the bankruptcy proceedings for a period of more than seven years. The bankrupt himself paid the only debt in the schedule. It affirmatively appears that the assignee never took possession of the lands. There were no other assets save the cotton crop reported as mortgaged for the debt, and which probably was taken by the creditor.
Afterwards, by order of the Court certified to him on the 10th day of February, 1879, the assignee advertised the tract in section 5; and on the 15th of March following sold to plaintiff, J. C. Brookfied, all the interests which the bankrupt had therein, subject to the mortgage. The sale was reported and confirmed. The tract in section 8, being the homestead, was not sold.
Upon the title thus acquired, Brookfield brought ejectment in the Cross Circuit Court on the 26th of January, 1880, against two parties alleged to be in possession, against whom judgment by default was taken at the April term, 1880. This seems to have been disregarded, for at the same term Taylor was allowed to come in and answer, denying the ownership of plaintiff, and claiming that the two parties sued were his own tenants. He set up also, in another answer, what he claims to be an equitable defence, as follows: That he purchased the land by deed from the bankrupt Driver, on the 27th of February, 1879, without any knowledge of the bankrupt proceedings, beginning in 1871 j That he did not know, that the lands were involved in the bankruptcy of Driver; that if the assignee had any title he kept it concealed for a long time; that he never took possession, or attempted to set up any claim ; that Driver contintinued to pay taxes, and to all appearance was the sole owner; that Driver and he, himself, had been in open, notorious and adverse possession for more than seven years before suit, and after the petition in bankruptcy; that the assginee was not in possession at the time of the sale to plaintiff, which the latter well knew; that Driver after filing his petition and being adjudicated a bankrupt, continued in possession, and paid off the mortgage debt before selling to defendant; that it is not worth over $600; that Driver in paying off' the mortgage debt became entitled to the rights of the mortgagee, and that, in equity, this right passed to defendant on his purchase from Driver. He relies upon his right by limitation, but asks in the alternative that if that be not allowed, he be subrogated to the rights of the mortgagee, and for foreclosure. The deed exhibited, includes both tracts of land, except that the one in controversy is described as the south half and the north east quarter of S. W. 4 of section 5, instead of the fractional S. W. 4 of section 5. As there are only 115 acres in the quarter section, and as the two parts of it designated in the deed would of themselves ordinarily contain 120 acres, it is pretty certain that they include all there is of the S. W. 4 of section 5, and that it is fractional by reason of wanting the north west quarter. The mortgage also exhibited, was upon the cotton crop and upon the lands in section 5 alone, described there, as the south east part of the quarter section.
The defendant pleads specially also the limitation of two years, under the bankrupt act.
The bankrupt had not been discharged until after the sale by the assignee.
The cause was heard in equity. The Court by its decree sustained the title of defendant, and rendered judgment against plaintiff for costs.
OPINION.
With regard to the claim for subrogation, the answer shows no equity. The facts stated bring the case within none of the recognized principles upon which the right of subrogation rests. The bankrupt, by his subsequent discharge, which had relation to discharge all claims which might have been proved in the proceedings, was under no legal obligation to discharge the mortgage debt. If he felt under a moral obligation to pay it, it was none the less his own. The effect was to discharge the property of the burden, and it enured to his benefit, in any view of the case. There were no other debts. If the assignee had taken and claimed the equity of redemption, there would have been a surplus of assets which would have reverted to the bankrupt without the aid of subrogation. If not, the benefit of the payment enured to the bankrupt at once. He took no assignment of the mortgage, to put himself in the attitude of a stranger, or purchaser with new acquisitions.
The defenses as to limitations depend on the adverse na- , . t-v/it - ture oí the bankrupt's possession. Defendant Taylor purchased on the 27th of Feb. 1879, and unless he can tack his adverse possession to that of the bankrupt, neither period of limitation had elapsed before suit.
Although the witnesses all say that the bankrupt remained continuously in possession, yet they do not disclose how or by what acts the possession was maintained, nor do they show the nature of the property, how improved or whether improved at all. These are important in determining whether it was really adverse. There is enough in the exhibits to enable us to infer that the land to which it was adjacent,. was the. homestead of the bankrupt, and assigned to him as such, but nothing to show that any of the improvements extended over the land in question. Looking solely to the nature of the possession, we cannot see that it was adverse. The bankrupt had scheduled it'as subject to the mortgage, and his possession might, so far as appears, have been all the time consistent with the right of the assignee, if there were noihing else in the case.
But there are very peculiar circumstances in the case — the most remarkable being the fact that Driver went into bankruptcy at all; and it is equally mysterious, why the assignee wished to sell. Driver only owed $800, which the proof shows he paid off in full, by installments; the last being paid in 1875. It does not appear that any costs were due. It is easy enough to understand why the assignee did nothing for nearly eight years. Incomprehensible, why he did anything afterwards. There was no debt left to be paid by a sale. In this ease the maxim applies, that what does not appear, cannot be considered to exist.
R is now well settled by many decisions, Federal and State, that an assignee need not take possession of, nor claim «S the property in a bankrupt’s schedule. In case certain pr0peiqy should be so encumbered, that it would be injudicious to redeem it, or idle to foreclose it, with any view of realizing anything to the assignee, he may decline to receive it and it remains the property of the bankrupt. For this conclusion we are indebted to the Hon. H. C. Caldwell, U. S. Judge of the Eastern District of our State. In an able and very careful opinion, rendered in the Circuit Court for that District in the case of Kimberling v. Hartley et al, reported in Federal Reporter, Vol. 1, p. 571, and 1st McCrary, 136, the learned Judge found it necessary to determine this question and he collects the authorities. In that case there ihad been a proceeding in the State Court by a judgment creditor against his debtor, to set aside a fraudulent conveyT anee, and pending the proceedings the debtor on his own petition was adjudged a bankrupt. His assignee declined to intervene and the property was sold under a decree of the State Court, and purchased by the creditor, who was after-wards sued in ejectment by a subsequent vendee of the bankrupt.. There were other points in the case distinguishing it from this, but upon the point announced above, the Judge says: “If the property did not exceed in value the amount of Hartley’s lien against it, and other creditors would derive no benefit from the suit, the assignee acted wisely in not intervening, and allowing the lien creditor and the bankrupt to settle the controversy between themselves, in the State Court, without expense to the estate.” That is to say, in abandoning all claim to what would be useless.
In support of the position that an assignee is not bound to take all the property of the bankrupt, but may reject such as may be rather a burden than a benefit to the estate, he cites 1 Deacon on Bank, 535; Amory v. Lawrence, 3 Clifford, 523, et seq; McLean v. Rocky, 3 McLean, 235; Rugely & Harrison v. Robinson, 19 Ala., 404, 417; Glenning v. Langdon, 98 U. S., 20, 30; In re Lambert, 2 Bank Reg., 138.
We have examined the cases and find that they not only give full support to the principle, announced in the case under consideration by Judge Caldwell, but go further, and hold that the assignee is bound in a reasonable time to exercise his election, and if he neglects for a considerable period, longer than consists with the speedy settlements of bankrupts’ estates, as required by the policy of the law, and does no act indicating an intention to make the special asset available, he will be presumed to have declined it, and it will remain the property of the bankrupt. This is expiessly asserted in the cases above quoted from 3d Clifford and 19th Alabama, and follows by direct logical sequence from the rulings in all the others. . It is based upon English decision» under the statutes, which are direct to the point. In Rugely & Harrison v. Robinson, (supra), the Court cites Copeland v. Stephens, 1 B. & A., 573, in which it was held that an assignee in bankruptcy was not bound to take a lease hold estate burdened with such rent as to make it valueless, and proceeds to say, with regard to the case then in judgment: “It may be held that the interests of the creditors have been promoted by the failure of the assignee to take any steps to recover the interests of Ely, (the bankrupt). Having the election whether to proceed .or not for its recovery, he should have exercised it within a reasonable time; at least, we think, within two years from the time of the decree, within which period the act contemplates the whole business shall be brought to a close.” To the same effect are the others.
When the petition in bankruptcy was filed, in 1871, the land in question was burdened by a lien in excess of its value. The assignee never took possession of it nor claimed it until Feb. 1, 1879, when he obtained an order to sell it. The policy of the bankrupt law requires a speedy settlement of the bankrupt’s affairs. For this reason alone, the short period of two years limits all actions for or against the assignee. The assignee was not bound, and under the circumstances, ought not, as a matter of prudence, to have burdened himself with such an asset. It could not possibly have been available to him in any way. The presumption is that he rejected it. More than seven years afterwards, the bankrupt, having redeemed the land, sold it by deed duly recorded, before the plaintiff purchased from the assignee.
' It would be very inequitable to allow the assignee to thus blow hot and cold, and claim or reject the asset as it might chance to become more or less valuable. He must be presumed to have declined to take it, and it therefore remained in equity the property of the bankrupt, and passed to his vendee.
The' equitable defense was good, and we find no error in the decree.
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Smith, J.
The grand jury of Bradley county, at March term, 1883, condemned the Court House of that county as unsafe. Thereupon the Circuit Court directed the County Court to provide new quarters for the Clerk and Sheriff, and to make an appropriation and proceed to advertise and let out the contract for building another Court House. The Quorum Court, consisting of the County Judge and a majority of the Justices of the Peace of the county, sat in July, but made no appropriation for these purposes. The Circuit Court at its next term caused the County Judge to be brought before it under process for contempt, and fined him for his disobedience of its.prders. And the County Judge now seeks upon certiorari to quash said orders and proceedings as illegal and void.
By the Constitution of 1874, which is not dissimilar in this respect from the former constitutions of this State, the County Court has exclusive original jurisdiction in all matters pertaining to county taxes, 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 county. And the Circuit Court has only a superintending control and appellate jurisdiction. Art. VII., sec’s. 28 and 14.
It is too obvious for argument that the erection of a Court House is a matter of local concern, which relates to the disbursement of money for a county purpose. The County Court must determine for itself, whether the conditions exist which demand a new structure, or whether it will content itself, with repairing the old one. Russell v. Jacoway, 83 Ark., 191. And probably its discretion in such matters is not subject to control by the Circuit Court. Clark County v. Spence, 21 Ark., 455.
All that the Circuit Court could in the first instance legally do, was to cause the report of the grand jury to be certified to the County Court for its information and for such action in the premises as it might decide to be proper.
The proceeding for contempt falls with the order to build a new court-house. The County Judge could not have been in contempt in this case, unless he had wilfully disobeyed a lawful order. Gantt’s Dig., sec. 818, 3d. clause. If the Circuit Court should order the execution of a prisoner before his trial and conviction, the Sheriff would not be liable to punishment for contempt for refusing to execute the sentence. Now the act of March 18, 1879, forbids the County Court to make such a contract without a previous appropriation. Sec. 9; Worthen v. Roots, 34 Ark., 365 et seq.
We do not mean to imply that the County Court, by neglecting to provide a suitable place for holding Court, has it in its power to annoy the Circuit Court, or embarrass its sittings. If no court-house, or an insecure one, is provided, the Circuit Court by virtue of that inherent authority which all Courts of record possess, might cause convenient apartments to be procured elsewhere in the town for the time being, the expense of which could be certified down to the County Court and payment ordered as a part of the incidental expenses of holding Court.
The orders of the Bradley Circuit Court, being without authority of law and beyond its jurisdiction, are quashed. | [
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Smith J,—
Upham, late United States Marshal, for the Western District,'was sued by his deputy for $552.60, the value of certain official services alleged to have been rendered him. He filed his petition and bond for the removal of the cause from the State to the Federal Court, under the act of Congress, approved March 3, 1875; but his prayer was denied. He then answered, denying his indebtedness; but upon a trial before the Court there was a finding and judgment against him for $352.34. The sole error assigned in his motion for a new trial is the refusal of the Court to stay its hand, by accepting his surety and declining to proceed further in the cause, after the filing of his petition.
The-Supreme Court of the United States being the final arbiter in question involving construction of Acts of Congress, it behooves us to inquire how they have construed the statutes for the removal of causes and to give effect to them under such construction.
Now, it is well settled, that when the removal is denied, the petitioner loses no right by contesting in the State Court the suit on its merits. The question is one of jurisdiction and the defendant does not waive it by submitting to answer and participating in the subsequent trial. Gordon v. Longest, 16 Peters, 97; Insurance Co. v. Dunn, 19 Wall., 214; Railroad Co. v. Koontz, 104, U. S., 5 ; Steamship Co. v. Tugman, 106.; Id., 118.
Was the action removable, as one arising under a law of the United States ? If it could have been originally brought in the Federal Court, the petition ought to have been granted. Dillon on the Removal of Causes, Sec. 8.
By Sec. 2, of Article 3, Constitution of the United States, jurisdiction is given to the Courts of the. United States, in two distinct classes of cases. In one class, their jurisdiction depends on the character of the cause, that is, the subject matter of the suit. In the other class, it depends on the citizenship'of the parties.
Here the removal is sought, not because the controversy is between citizens .of different States, or between a citizen and an alien. For we may presume from the record that the parties, plaintiff and defendant, were both citizens of the same State. But the ground of Application is that the defendant claims he has a defense arising under the law of Congress. And that law is See. 829 of the Revised Statutes, which prescribes the Marshal’s fees.
■ Now, the compensation which a Marshal shall give his deputy, is purely a matter of convention. The laws of Congress have nothing more to do with it than they have with regulating the contracts which the Marshal may make with his gardener, or his woodchopper. The controversy was, whether and how much the Marshal owed his deputy for services. And its correct dicision did not depend on the validity or the construction of. any act of congress. Albright v. Treas, 106; U. S. 613, and cases there cited.
Judgment affirmed. | [
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Smith, J.
The complaint in this cause alleged that John H. Dowell, plaintiffs intestate, was a merchant domiciled in the State of Missouri; that at the time of his • death, debts were due him by persons resident in this State; that letters of administration were granted to the plaintiff in Arkansas, and that Ponder was indebted to the deceased in the sum of $2,994.32 for money lent, goods, wares and merchandise, the items whereof were set out in a bill oí particulars, and the balance due was sought to be recovered in this action. In the account filed, reference was made to certain notes made by the defendant, and he moved that the plaintiffs might be required to produce them. An affidavit filed in response to this motion disclosed the fact that administration had been taken at the domicil of the intestate. Thereupon the defendant demurred generally to the complaint and his demurrer was sustained and the plaintiff resting, final judgment was rendered in favor of the defendant.
It does not appear from fthe record, upon what grounds the complaint was adjudged to be insufficient in law. But ; it is suggested here,, in support of the ruling below, that as section 4473 of Gantt’s Digest gave the domiciliary administrator the right to sue in the Courts of this State, he alone could prosecute an action against Ponder to recover this debt.
Now if we concede that the complaint, taken in connection with the above mentioned affidavit, shows ■ the grant of an administration upon Dowell’s estate in Missouri, yet the incapacity of plaintiff to sue, if there is any, is waived by not being distinctly specified as an objection to the complaint. A general demurrer to the complaint did not raise the question of want of title to the character in which' plaintiff sued, but only of defendant’s liability to the estate of Dowell. Bliss on Code Pleading, sections 264, 408, 409 and cases cited in notes, Gantt’s Digest, section 4565.
Since, however, the case must be sent back, we will indicate our views upon the point which the defendant attempted to make.
While a payment to the administrator in Missouri would " . have been a valid discharge of Ponder from the debt, at least as against any administrator subsequently here, (Doolittle v. Lewis, 7 Johns, Ch. 49); yet when a domestic administrator is once appointed, the right of the foreign administrator to collect the assets that are situate here and to use the process of our courts for that purpose ceases. It is a right which owes its existence to the comity of our statute, and of course it is subject to be construed or modified with reference to our own policy and the rights of our citizens. Persons, domiciled and dying in other States, are often indebted to creditors residing here, and may leave personal assets here. In such cases it would be a great .hardship to permit the principal administrator to withdraw those funds without the payment of such' debts, and thus leave creditors to seek their remedy in the domicil of the intestate, and perhaps then to meet with obstructions and inequalities in the enforcement of their rights from the peculiarities of the local law. Story on conflict of laws, section 512; and compare sections 513a, 514, 515 and notes.
The debtor cannot be vexed with two different suits in respect of the same transaction, neither can there exist two administrators independent of each other and deriving their authority from different States, who are equally entitled to administer the same goods of the same intestate. Goodwin v. Jones, 3 Mass. 514.
There is another view which may have influenced the action of the Circuit Court. The account filed discloses an indebtedness to J. H. Dowell Co. The Court may not unnaturally have concluded that others, besides J. H. Dow-ell, may have had an interest in this mercantile house. And perhaps as a matter of pleading the complaint should have shown whether J. H. Dowell & Co., was a firm, composed of several members, or whether J. H. Dowell alone was trading under this firm name. If the debt was due to a partnership, of which some of the members are still living, the action should be in the name of the.survivors and not of the representative of the deceased, partner, unless this particular debt has been assigned by the survivors to Dowell’s estate as a part of his share in the partnership-assets.
The plaintiff can amend his complaint so as to show that it'was only Dowell’s estate which is interested in this claim; or, if the facts be otherwise, the defendant can plead that the firm of J. H. Dowell & Co. was composed of several members and that the right of action is in the surviving partner.
Reversed and remanded with directions to overrule the demurrer, and to proceed in other respects in conformity to this opinion. | [
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English, C. J.
On the 17th day of July,'1880, James K. Perry as administartor with the will annexed, of the estate of ¥m. H. Dawson, deceased, presented to the Circuit Court of Yell County, for the Dardanelle District, a petition for certiorari, to the clerk of the Probate Court of said County. The purpose of the petitioner was to have quashed a judgment of the Probate Court against the estate of Dawson in favor Silas F* Field. The petitioner did not exhibit with his petition, in accordance with the established practice, an authenticated transcript of the record of the proceedings and judgment of the Probate Court, which he sought to quash. From the allegations of the petition and papers copied in it, and statements of the Probate clerk made exhibits, the following facts appear:
William EL Dawson, of Yell county, died on the 11th of November 1868, leaving a will, by which he appointed his wife, Mary A, Dawson, executrix, and Curtis R. Wilson, executor, and provided, among other thing, for the education of his daughter Alice, at the Catholic Convent of' Little Rock, at the expense of his estate. On the 12th of January,1869, the will was probated, the executrix and executor qualified and issued the statute notice to creditors and took charge of the estate. In December, 1869, Mrs. Dawson intermarried with Lewis C. White and thereby ceased to be executrix. Curtis R. Wilson continued to act as sole executor, and managed the estate until the 15th of April, 1875, when his letters were revoked, and James EL Perry was appointed administrator of the estate, with the will annexed.
It appears that Alice Dawson was sent to the Convent to be educated, as provided by her father’s will.
On the 10th of May, 1873, when Curtis R. Wilson was acting as executor, and it seems, guardian of Alice Dawson, he executed to Silas F. Field the following note:
$77.73. Dardanelle, May 19th, 1873.
One day after date I promise to pay to the order of Silas F. Feild, as surviving partner of Feild & Dolley, Seventy-seven 73-100 Dollars, for value received, with interest at the rate of 10 per cent, per annum from date until paid.
C. R. Wilson,
' Guardian Miss Alice Dawson.
About the 15th of October, 1877, the note was sent to W. D. Jacoway, Esq., an attorney at Dardenelle, for collection, who attached to the note a statement of the principal and interest due upon it, verified by the following affidavit:
“State of Arkansas, \ County of Yell. , /
I, W. D. Jacoway, as attorney for Silas F. Field, do solemnly swear that I have made diligent inquiry and examination touching the above claim, and that I verily believe that nothing has been paid or delivered toward the satisfaction of the same, and that the sum of one hundred and twelve dollars (the principal and interest of the note) above demanded is justly due and unpaid, and that said claim was contracted under and by virtue of the last will and testament of William H. Dawson, deceased, in the education of his daughter Alice Dawson, (now Alice Mayor) at the Catholic Convent, at Little Rock, Arkansas, and for clothing and other necessaries for said Alice, while at the said school.”
This affidavit was subscribed by W. D. Jacoway, and sworn to before the clerk of the Probate Court.
On the 16th of October, 1877, the claim was filed in the office of the Clerk of the Probate Court, and the Court being in session, the following judgement of allowance was made and entered of record :
“Silas F. Field surviving partner of Field & Dolley. v. Estate of William H. Dawson.”
Now, on this day this cause,came on to be heard, and the administrator of said estate James K.. Perry, being present and offering no objection to the payment of said claim, and it appearing to the satisfaction of the court here that said claim is for clothing and other necessaries furnished Alice Dawson, daughter of William H. Dawson, while attending the Catholic School in Little Rock, Arkansas, as provided under and by virtue of the last will and testament of William EL Dawson, deceased, said claim is therefore allowed and approved by the Court, and said J. K. Perry as admin istrator, d. b. n., of the estate of William H. Dawson, deceased, is by the court-here ordered to pay said claim out of the assets of said estate.”
The petitioner alleged that this judgment of the Probate Court was null and void, and prayed that it be quashed on certiorari, on the following grounds, substantially :
1st. Because the claim on which the judgment was founded was not a claim against the estate of William H. Dawson, but a note made by Curtis R. Wilson as guardian of Alice Dawson.
2d. Because the claim was not presented to the administrator of Dawson for allowance or disallowance.
3d. Because the claim was barred by the statute of non-claim.
4th. Because the court had no jurisdiction to allow the claim against the estate of Dawson, it not having been contracted by him before his death, and was not for expenses of administration.
5th. That notice was not given to the administrator of the presentation of the claim to the Probate Court for allowance.
Upon the petition, the Circuit Court refused to award the writ of certiorari as prayed, and dismissed the petition, and Perry excepted to the decision and appealed to this court.
OPINION.
The claims and demands which the statute contemplates shall be exhibited to an executor or administrator, for allowanee or rejection, within two years from the grant of letters are such as exist at the date of the decease, or come into existence within two years from the grant of letters of administration. Walker v. Byers, 14 Ark., 246 ; McCoy v. Jackson, 21 Ib., 474; Yarborough v. Ward, 34 Ark., 204.
The claim in question on which the judgment of the Probate Court sought to be quashed was' founded, arose after the grant of letters in the course of administration under the will, and the statute of non-claim bad no application to it. It was a debt incurred for the education of tbe daughter of the testator under a provision of his will, which he had the right to make. No question as to the right of general creditors is presented in this case.
The note upon which the allowance was made was not binding on the estate, but the Probate Court had jurisdiction to look back of the face of the note, and to enquire into the consideration for which it was given, and to determine whether it was within the provision of the will for the education of the daughter of the testator. The Probate Court clearly had jurisdiction of the subject matter, and its judgment was not void and quashable on certiorari. If any error occurred in the allowance it might have been corrected on appeal to the Circuit Court.
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Eakin, J.
Plaintiffs, who are children and heirs ■ of Vincent Wheeler, brought ejectment against Ladd to recover two-thirds of a tract of land. They allege and' show, that their father in 1859, bought the land from Wm. H. Stone and entered into possession; that he paid for it the sum of $2,500, and on the 25th of November, 1862, received a deed, which they file with their complaint. This deed describes the land as the “East half of the North quarter of Section 27, and all of that part of the Northwest fr.-J of section 26 lying South of the ditch,” all in T. 12 N. R. 5 West, containing 220 acres.
From clerical omission perhaps, this description is imperfect; but there is no question on that; and it, otherwise, very clearly appears, that the East half of the North Bast quarter is intended. At the same time the said .Vincent, for a third of the consideration, conveyed a third of the land to Jacob Foster, describing it as follows: “One-third of the E. £ of the N» E. | of section 27, and all of that part of the N. W. fr. £ of sec. 26 lying south of the ditch, containing 73-2.- acres, more or less, in T. 12 N. R. 5 W., said -J- to be taken off the South side of said tract of land, and to run parallel with the Southern boundary line.” It is evident from the number of acres, that the intention was to convey a third of the whole tract, and not a third of that in section 27 with all of that in section 26. It may be said here, once for all, in passing, that this made no tenancy in common. A surveyor might run off the third conveyed by metes and bounds.
They further allege that their father remained in possession until his death, about the year 1866, that their mother, with some of the children, continued the possession until about the year 1870; that in 1875 the Executors of Foster, who had died, sold his interest under orders of the Probate Court, and on the 8th of February, 1876, conveyed to Ladd, the assignee of the purchaser, who took possession of the whole tract and still claims it, to their exclusion. They rely upon the purchase and possession by the father, and seven years adverse possession, ripening into title.
An amendment to the complaint sets forth that previous to the father’s purchase the lands were occupied by I)r. Chapman, with his family, who died about 1856, intestate ; that the children sold, the land to Stone and Reed, and removed to California, and have since made no claim to it, and that Stone was in possession, claiming to be the owner when he sold to their father. Four of the plaintiffs were minors within three years before suit.
Ladd answers, and relies upon his purchase from the bidders at the Executor’s sale (or their assignees), which, as to the part in 27, he says was about the 1st of July, 1875, and upon his continued possession since — receiving his deed from the Executors on the 8th of February following. As to the portion in section 26 he says he purchased a portion of it from a bidder at the Executor’s sale, and went into immediate possession on the 4th of Jan., 1875. Another portion he purchased from another purchaser at said sale in November, 1876. Apart of section 26 had been assigned to the' widow of Foster as dower.
He sets up title in Chapman at the time of Vincent Wheeler’s purchase from Stone, and pleads the Statute of Limitations of five and seven years.
The issues were submitted to a jury, which found for defendants. After a motion for a new trial had been overruled plaintiffs appealed.
It is convenient to consider first, whether the verdict was against the law and evidence.
1st. As to the plaintiffs title under the statute of lim- * itations. No other title was shown in Chapman or Stone, the vendor of the ancestor. The proof shows that Chapman, died about ’56, and that his family left for California. Stone, a son-in-law, was left in possession of the place, and assumed the power to sell it. But it does not appear that he held adversely. There is evidence to show that when Wheeler purchased, he was aware that the land belonged to Chapman’s heirs, and trusted that they would affirm the sale. With this knowledge, or whether he knew it or not, he cannot connect his adverse holding after his purchase, with the possession of Stone as trustee, or tenant under the heirs, before, so as to make such seven year’s possession as would give title. It would be otherwise if it had been shown that Stone had himself held as owner. But the proof on this point is not sufficiently clear. Prom the year 1859 ’till about the years 1868 or ’69, when the last of the Wheeler family left the lands, seven years had not elapsed, under the statute. The war period, from the 6th of May, 1861 to the 2d of April, 1866, must be excluded.
Plaintiffs showed no other right to possession of the' land, than such as resulted from the fact that the ancestor had colour of title and died in possession, claiming ■the land as his own. This, like the old descent cast at common law, which gave such apparent right of possession as to toll the light of entry of a disseizee, although that is now changed by statute, is still sufficient to protect the heir in the continuous enjoyment of the possession, against any and everybody, who cannot show abetter title, and may support an action of ejectment. This Court has expressly recognized this in Jacks v. Dyer, et al., 31 Ark., 334. The prima facie case of plaintiffs was in this view established, and it devolved upon defendant to show a better title.
His -whole documentary evidence of-title was through the sales made in 1875, and the deeds of 1876, from the executors of Foster. The latter had none beyond this third part, and although there is oral proof that he 'had bought the interests of Chapman’s heirs in his lifetime, that must be disregarded, under the statute of frauds. At law, title to real estate can only be shown by written instrument, or oral proof of descent, or seven years possession, to which may be added, in equity, oral contracts with part performance, and other cases of implied trusts.
After the death of Wheeler’s widow, the date of which is uncertain, but which was certainly before 1870, Foster took possession of the whole tract, and from that time on, till his death, claimed it as his own. The adverse nature of his possession is clearly shown by evidence The oi’al proof, whilst incompetent to show any title in him, may explain his motives. He repudiated the title and right of the Wheelers, and desired to fortify his possession under the Chapmans. This adverse possession may connect with the possession of his executors, and of purchasers from them, and in. 1880 having ripened into a title, showed a better right in defendant than the prima fade right of plaintiffs’.
But not as to all of them. Four of Wheeler’s children were minors, within three years before, or at the time of beginning the suit. Another was covert, when Foster first took possession. As to these, they are not affected in any way by the statute of limitatio ns. Their disabilities protect them entirely, and they may stand upon their prima fade right for their proportionate shares of the property which came to them by descent, with colour of title. The title of defendant by adverse possession could not, as to them, become a “better title” until their disabilities were removed, so that it might operate against them. Under the evidence as presented by this trans- script the jury should have found for the minors and the' feme covert, who were, or had been so, up to within three years for their respective parts, with proportionate damages.
It is not important to-consider of objections to instructions. The court properly refused to give one asked by plaintiffs on the hypothesis, that Wheeler and Foster were tenants in common. They were not. As for the rest, the instructions were mainly fair, and stated the law, except that they were calculated to make the impression that the seven year’s possession of defendants would defeat th q prima facie right of the plaintiffs under disabilities. In so far they were erroneous.
The widow of Foster, and Crow, a claimant of a small portion of the land, were made defendants, and did not answer. They will be amenable to the final judgment if their claims conflict with the right of any of the plaintiffs, who may recover for a proportionate part of the portion of the tract which Wheeler reserved in his conveyance to Foster, and which seems to have been considered by them as two-thirds in value of the whole.
For error in overruling the motion for a new trial reverse the judgment, and remand with usual directions. | [
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STATEMENT.
English, C. J.
This was a scire facias to revive a judgment, issued 10th October, 1881. The writ recited that on the llth June, 1867, W. H. Morrison, as administrator of the estate of Isaac II. Morrison, deceased, recovered a judgment against R. B. Macon for $889. for debt and damages, &c.
That after the recovery of'the judgment W. H. Morrison was removed from the administration, and C. B. Powell appointed administrator de bonus non of the estate of Isaac H. Morrison.
That on the 10th January, 1868, R. B. Macon died seized and possessed of a tract of land, which is described, and other lands, and that said judgment constituted a lien upon said lands at the time of his death.
That the heirs at law of R. B. Macon, deceased, were Robert B. and Ida T. Macon (now Ida S. Lucy) who, on his death took possession of his lands, and held the same as a homestead under the Constitution of 1868, until they become of age in 187 — , and ever since his death have held said lands, and are now in possession of them by descent from him as their ancestor.
That there was not, nor had there been at any time, any administration on the estate of R. B. Macon.
After making the above recitals the writ commanded the sheriff to summon said R. B. Macon and Ida S. Lucy, heirs at law of R. B. Macon, deceased, to appear at the next term of the Phillips Circuit Court,, etc.; to show cause why the judgment above recited and the lien thereof upon the lands aforesaid should not be revived, and execution issued thereon in the name of the said C. B. Powell, as administrator aforesaid, against them as heirs at law of R. B. Macon, deceased, and against the lands aforesaid, &e.
The Court sustained a demurrer to the scire facias, interposed by defendants, and dismissed the writ, and plaintiff appealed.
OPINION.
Under our system of administration, a revivor of the on the facts recited in the scire facias, against appellees, as heirs at law of R. B. Macon, the judgment debtor, would be fruitless. No execution could issue against them on the revival judgment, for they were not personally liable, and no execution could be issued against lands descended to them from the judgment debtor, because the judgment, at' his death, was but a general, and, not a specific lien, upon his lands. Homor as Trustee v. Hanks et al, 22 Ark., 572; Yonley v. Lavender et al, 27 Ib., 252.
If execution had been taken out in Ike lifetime of the debtor, upon the judgment, and levied upon laud, a ' specific, instead of a general, lien would have been created, and after his death, the. judgment might have been revived by scire facias, and the land sold under a tend. ex. Barber v. Peay, Ad., 31 Ark., 392, and cases cited. But no such case is made by the recitals of the scire facias before us. Without administration upon the estate of the judgment debtor, the judgment being but a general, and not a specific, lein upon his lands, appellant undertook to revive the judgment by scire facias against his heirs, for the purpose of taking out execution against lands descended to them. This cannot be done under our administration statutes.
■ The fact that appellees may have occupied the land during their minority, as a homestead, is no excuse for the attempt to revive the judgment by scire facias, after the termination of the homestead right, and sell the land on execution without resort to administration through the Probate Court.
- If appellant had caused letters of administration to be táken out upon the estate of R. B. Macon, before suing out the scire facias, and made the administrator a defendant to the writ, he might, upon the facts recited in the writ, have been entitled to a revivor of the judgment, (Gantt’s Dig., sec’s. 3614, 3619), but he could not have enforced the revived judgment by execution against the land of the deceased judgment debtor. At last he would have been obliged to resort to the Probate Court for classification of the judgment, and an order for the sale of the land under our administration system, as shown by the adjudications above cited.
Under the scire facias before us he could accomplish nothing by a revivor againsUappellees.
Affirmed. | [
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Smith, J.
The Board of’ Commissioners to superintend the letting of public contracts, ■ consisting of tbe Governor, Auditor and Treasurer, advertised for thirty days, that they would down to a certain time, receive sealed proposals for tbe public printing during tbe years 1883 and 1884. Tbe Union Printing Company, tbe firm of Smifchee and Newman, tbe firm of Mitchell & Bettis, and George Woodruff, submitted separate bids for said printing. Tbe bids were all rejected, tbe Board being apparently unable to determine who was tbe lowest bidder. This was on tbe 30th of June, 1882. They then gave notice for ten days that proposals for printing and printing material would be received until 10 a. m., of July 10th. Thereupon the above mentioned four bidders entered into an agreement that a bid should be made in the name of George Woodruff, for the joint and equal benefit of them all. 'Upon this bid the contract was awarded to him, and on tbe first of January, 1883, be entered upon tbe performance of said contract. ' He died on tbe 27th of January, 1883, and letters of administration were granted to tbe appellant. On tbe 21st of February, 1883, the Legislature disaffirmed this contract, assigning for its reason that the statutory notice of the letting had not been given, and directing the Board to relet the contract. The Board published an advertisement inviting proposals, whereupon the administrator of George Woodruff filed the present bill to restrain the members of the Board from letting said contract anew, or otherwise interfering with the plaintiff in the performance of his intestate’s contract.
The defences were, 1st., the want of due' and legal notice of the letting of the contract, and 2nd, that the combination of persons interested in Woodruffs bid was unlawful and contrary to public policy, tending to stifle fair competition in the bidding and causing loss to the State in the increased cost of the public printing.
The Chancellor denied the writ of injunction and dismissed the bill.
Sec. 15 of Art. XIX, Constitution of 1874, provides that the public printing “shall be performed under contract, to be given to the lowest responsible bidder, below the maximum price and under such regulations as shall be prescribed by law.”
The act of Nov. 28, 1874, directs that such contracts shall be let to the lowest responsible bidder for the term of two years, and that notice of the lettings shall be published for thirty days in one or more daily and weekly newspapers printed at the capitol of the State, of most extensive circulation throughout the . city and State, at least six months before the expiration of the existing contract, in order that the new contractor may have sufficient time to become fully prepared to enter promptly upon his duties. A maximum rate is established, and any proposal in excess of such rate is not to be entertained. All printing is to be done within the State. Sec’s. 8, 4, 10 and 20.
Sec. 1 of the amendatory act of March 17, 1879, enjoined it upon the board to contract for lower rates than the maximum, if possible, and authorized them to reject each and every bid, if they deemed them too high and to let the contract anew.
The end proposed in the constitutional provision re quiring public contracts to be let to tbe lowest bidder is public economy. And tbe means provided by tbe Legislature is an extended notice in the public journals so as to ensure publicity and secure competition. The established policy of the'State upon this subject is, that public contracts are to be let upon public notice, and to be open to competition upon proposals and are to be made with the lowest bidder who can give due security. The entire authority of the board to let such contracts is conferred by statute, and the statute prescribes how only they can contract. Any other contract is unauthorized, in excess of the powers vested in the board and voidable at the election of the State. Dickinson v. Poughkeepsie, 75 N. Y., 65; Kneeland v. Milwaukee, 18 Wis., 411; Wells v. Burnham, 20 Id., 112.
In Woodward v. Commissioner State Lands, 39 Ark., we held in effect that individuals as well as Courts must take ncdice of the extent of authority conferred by law upon persons acting in an official capacity. It is better that an individual should occasionally suffer from the mistakes of public officers or agents than to adopt a rule which, through improper combinations or collusion, might be turned to the detriment or injury of the public. Mayor v. Eschback, 17 Md., 282; Whiteside v. United States, 93 U. S., 257; Hawkins v. United States, 96 U. S. 689.
Now if the board had assumed to let this contract without any public notice whatever, it is obvious that they would not have pursued their statutory powers, but would have exceeded the same. Maxwell v. Stanislans County, 53 Cal., 389.
But the argument is, that having once given thirty .days notice of the letting and having rejected all bids that were presented in response to the invitation, they were.-at liberty to invite further bids until a future day certain, dispensing with further notice or giving a shorter notice than the statute required; and their action in soliciting proposals to the 10th of July was a continuation of the former proceedings, like the adjournment or postponement of a Sheriff’s or Master’s sale.
All of the eases on this head cited by appellant are cases either of execution or of judicial sales. To prevent the sacrifice of property at forced sales, the officer is invested with a pretty large discretion and in the exercise of that discretion, may adjourn the sale. And as to the character of the notice to be given of the time to which the adjournment is made, the weight of authority is that notice may be given by proclamation made in the presence and hearing of the people assembled at the time first fixed for the sale. However, several respectable Courts have maintained that a new notice must be given, for the time and in the manner required in the first instance. The cases are collated in Freeman on Executions, sec. 288.
But we apprehend that the analogy between such cases and the present one is very imperfect. The defendant in execution may move the Court out of which it issued, to set the sale aside for irregularities that have operated to his prejudice; and perhaps the officer maybe liable on his bond for any abuse of his discretion in postponing the sale. In judicial sales, the case is still stronger; for they are conducted by an officer who is subject to the control of the Court and they are never final until the Court sanctions them.
This case is more nearly associated to the case of a sale under a power contained in a mortgage or deed of trust where the instrument itself or a statute of the State requires a certain notice to be given of the execution of the power. In that case a sale without notice or upon shorter notice than is required by the terms of the deed or statute is absolutely void, conveys no title and does not divest the equity of redemption. Lawrenee v. Loan and Trust Co., 13 N. Y., 200; Bigler v. Waller, 14 Wall, 297; Shillaber v. Robinson, 97 U. S., 68.
In Mitchell v. Milwaukee, 18 Wis., 92, the City Charter required that all work for the city should “be let by contract to the lowest bidder and due notice shall be given of the time and place of letting such contract.” “Work having been ordered to be done on the street in front of the plaintiff’s lot, which was chargeable to the lot, the street commissioner proceeded regularly to let the contract, and it was let to the plaintiff' himself, he being the lowest bidder. He bid to do the grading at three cents per cubic yard. At the same time there were other bids put in, one at seven cents, one at fourteen and one at forty-two cents per cubic yard. The plaintiff' not having entered upon the work under his contract, in what the commissioners held to be a reasonable time, they relet the contract privately at forty-two cents per yard to the same parties who had previously bid at that price.” They supposed that they had this power because the charter provided for the publication of notice to the lot owners to do the work within a reasonable time, before the street commissioners should be authorized to let the work on contract; “and if said work be not done within the time limited in such contract the said commissioners may relet such' work without further, notice.” . This action was brought to restrain the sale of the plaintiff’s lot on the assessment for the work done under that contraction the ground that the assessment was void. The single question presented* so far as its validity is concerned, was whether the commissioners had power to re- let the contract without further notice. The Court held that the “further notice” dispensed with was notice to the lot owner, and that the commissioners are still hound to give notice to the public of a reletting, and no such notice having been given, the contract itself and the assessment upon the lot for work done under it were void.
In the matter of John G. Leeds, 53 N. Y., 400, the law authorized the board of water and sewerage commission-, ers in the city of Brooklyn to let the work of constructing a sewer to the lowest bidder and prohibited them from proceeding with the construction except upon advertisement for proposals. A contract for constructing a sewer had been let in accordance with the statute, and the contractor after performing a portion of the work," abandoned the contract, and the work was completed without advertisement or competition, at an expense considerably exceeding the contract price. It was held, Allen, J., dissenting, upon an application to vacate or reduce the assessment, that a failure to advertise, after such abandonment, was not of itself sufficient- to establish that the expense had been illegally incurred. But there the liability of the contractor and his sureties was deemed ap adequate indemnity against any additional expense in completing the work.
Upon this branch of the case, we are 'of the opinion that the same necessity for a legal advertisement.existed, after the first bids were rejected, as in the first instance. All the considerations which induced the constitutional convention to require that all public work should be let by contract to the lowest bidder and which induced the Legislature to require due notice of the time and place,' are as applicable'to a second letting as to the first letting. Competition'was equally necessary to protect the inter- ests of the State in both cases. The board could no more dispense with notice of the reletting than they could have dispensed "with the duty of letting to the lowest reposnsible bidder. Eor it cannot be assumed that it was intended to. require the work to be let anew to the lowest bidder, and yet require no notice or an insufficient notice of the fact of letting. Mitchell v. Milwaukee, supra.
It follows that the'board attempted to exercise their discretion in a matter about which they had no discretion. Yet the State is not responsible for the mistakes of her officers and agents, nor bound by their unlawful or wrongful acts. Gibbons v. U. S., 8 Wall, 269; U. S. v. Van Zandt, 11 Wheat., 184; U. S. v. Kirkpatrick, 9 Id., 720; Jones v. U. S., 18 Wall, 662; Hunt v. U. S., 95 U. S., 316.
We attach no importance to the suggestion that, after the first bids were rejected, it was then impossible to give thirty days notice and. let the contract six months in advance of the expiration of the existing contract. It was equally impossible to give ten days notice and comply with the letter of the law. And yet the board advertised for ten days. This provision was for the convenience and benefit of the contractor, giving him ample time to make his arrangements and preparations for doing the work after the comtract was awarded him. The act of March 17, 1879, authorizing the board to reject all bids, made this six months period of preparation liable to contraction. And yet a contractor who submitted a bid, knowing at the time that he must enter upon his duties in less than six months, if his bid was accepted, could not complain.
Upon the other branch of the case — the question of constructive fraud involved in the combination of these rival printers and the submission of a joint bid upon an agree-men"fc that all should participate in the ivork and share i,n the profits — we are aware that Courts tread upon thin ice when they annul contracts because they contravene, or are supposed to contravene, considerations of public policy. That may be an unstable and shifting element. In Richardson v. Mellich, 5 T. R., 599, Best, C. J., said: “I am not much disposed to yield to arguments of public policy. I think the Courts of Westminster Hall have gone much further than they were warranted in going on questions of policy. They have taken on themselves sometimes to decide doubtful questions' of policy, and they are always in danger of so doing, because Courts of law look only at the particular case and have not the means of bringing before them all those considerations which enter into the judgment "of those who decide on questions of policy * * * , I admit that if it can be clearly put upon the contravention of public policy, the plaintiff cannot succeed; but it must be unquestionable; there must be no doubt.” Burroughs, J., joined in the protest of the Chief Justice “against arguing too strongly upon public policy. It is a ■ very unruly horse and when once you get astride it, you never know where it will carry you. It may lead you from the sound law. It is never argued at all but when other points fail.”
In Hilton v. Eckersley, 6 E. & B., 47, the Judges differed in opinion as to what public policy was in the case before them, and Lord Campbell said: “I enter upon such considerations with much reluctance and with great apprehension, when I think how different generations of Judges, and different Judges of' the same generation, have differed in opinion upon questions of political economy and other topics connected with the adjudication of such cases; and I can not help thinking that where there is no illegality in bonds and other instruments at common law, it would have been better that our Courts of Justice had been required to give effect to them, unless where they are avoided by act of Parliament. By following a different course the boundary between Judge-made law and statute-made law is very difficult to be discovered. But there certainly is a large class of decisions, which will be found collated in the report of the recent Bridgewater case, in the House of Lords, to the effect that if a contract or will is, in the opinion of the Judges before whom it comes in suit, clearly contrary to public policy, so that by giving effect to it the interests of the public would he prejudiced, it is to be adjudged void.”
The Bridgewater case was Egerton v. Earl Brownlow, reported in 4 H. L. Cas., 1. There the Judges were summoned to answer questions of law, one of which was: Are all or any and which of the several provisos in the will of the Earl of Bridgewater void? On this question they differed in opinion-, Baron Parke saying: “This (public policy) is a vague and unsatisfactory term and calculated to lead to uncertainty and error, when applied to the decision of legal rights; it is capable of being understood in different senses; it may and does, in its ordinary sense, mean “political expedience” or that which is best for the common good of the community; and in that sense there may be every variety of opinion, according to the education, habits, talents and dispositions of each person, who is to decide whether an act is against public policy or not. To allow this to be a ground of judicial decision would lead to the greatest uncertainty and confusion.
It is the province of the statesman and not the lawyer to discuss, and of the legislature to determine what is the best for the public good and to provide for it by proper enactments. It is the province of the Judge to ex pound, the law only; the written from the statutes ; the unwritten or common law from the decisions of our predecessors and of our existing courts, from text-writers of acknowledged authority, and from the principles to be clearly deduced from them by sound reason and just inference; not to speculate upon what is the best, in his opinion, for the advantage of the community.”
Yet the Lords thought differently, and showed by their judgments that this doctrine of the public good, or the public safety, being the foundation of law, an unlimited number of cases might be cited as directly and distinctly deciding upon contracts and covenants on the ■avowed broad ground of the public good and on that alone.
Lord Brougham said: “ Exceptions have been made to the expression of 'public policy/ and it has been confounded with political policy. * * * Public policy, in relation to this question, is that principle of the law which holds that no subject can lawfully do that which has a tendency to be injurious to the public or against the public good, which may be termed the policy of the law, or public policy in relation to the administration of the law.”
Amongst these contracts, condemned by the policy of the law, may be mentioned contracts in restraint of trade or marriage, marriage brokage contracts, contracts compounding felonies, and agreements made between two or more persons to avoid or reduce competition at execution or judicial sales. And by analogy the courts have extended the prohibition against the prevention of competition to the ease of a Dutch auction, where the biddings are downward; as where land is sold at tax safe to him who will pay the taxes for the smallest quantity of the land; or where contracts for public supplies or work is let to the lowest bidder.
The courts of New York have uniformly inculcated an elevated morality on this subject. Thus in Doolin v. Ward, 6 Johns, 194, certain articles were to be sold by auction at the navy yard at Brooklyn, and parties being desirous to purchase, agreed that the plaintiff should not ■bid against defendant, who should purchase the articles and afterwards divide equally. And it was held the contract was against public policy.
In Wilbur v. How, 8 Johns, 444, a contract for making a road being set up at auction, the parties agreed that if either bid it off it should be divided between them. One bid it off and refused to give the other a share. The Court held the contract nudum faetum, and a fraud on the vendor.
In Thompson v. Davies, 13 Johns, 112, it was decided that an agreement which tended to prevent competition at a sale under execution was contrary to public policy and void. Spencer, J., in delivering the opinion of the Court said: “ It has been urged that the plaintiff was • not bound to bid on the second execution, and was therefore at liberty to enter into this agreement. That is not the test of the principle. In none of the cases cited was the party bound to bid, but being at liberty to bid, he suffered himself to be bought off in a way which might prevent a fair competition. The abstaining from bidding upon concert and by agreement, under tbe promise of a benefit for thus abstaining, is the very evil the law intends to repress. A public auction is open to every one; but there must be no combination among persons competent to bid, silencing such bidders, for the tendency to sacrifice the debtor’s property is inevitable.”
In Atcheson v Mallon, 43 N. Y., 147, a "board of auditors of a town were by statute authorized to receive sealed proposals for the collection of the xaxes, and to award the collection to the person, who should propose to collect the same on terms most favorable to the public. Two persons, each sending in distinct proposals, agreed that if the collection should be awarded to either, both should share equally in the profits and contribute equally to the losses. And it was held the contract was against public policy; Folger, J., said: “ It is not necessary for the determination of this case to inquire whether the effect of the agreement between the parties was, in fact, detrimental to the town. The true inquiry is, is it the natural tendency of such an agreement to injuriously influence the public interests? The rule is, that agreements which in their necessary operation upon the action of the parties to them tend to restrain their natural rivalry and competition, and thus result to the disadvantage of the public, or of third parties, are against the principles of sound policy and are void. * * The object and policy of the statute was to be achieved only by exciting the rivalry and competition of men seeking this privilege. This competition was to be excited by calling by advertisement for sealed and secret proposals. Each bidder, ignorant of what his rival was about to offer, would be under stimulus to make a bid at the best rate to the town which his judgment would sanction as of profit to himself. * * * Where an agreement is made between bidders to share in the acceptance of the offer of either, it is apparent that the competition must materially slacken. Each of those parties had intended to make a proposal on his own account, and it was after each knew of the other’s intention that the agreement between them was proposed and entered into. Until it can be truthfully said that men’s actions will not be affected by a consideration of their self-interest, it cannot be maintained that the parties to this agreement were likely, after it was formed, to be as strong competitors as they were before. Such is the natural effect of agreements of this nature; and it is for this reason and not on account of the natural results upon the public or upon third persons, of particular contracts that they are held void. It is because men, with these agreements in their hands, and relying upon them for their gain, do not act toward the public and third persons as they would without them, under the stimulus of competing opposition.”
The New York doctrine has been followed in all its rigor in New Jersey by Gulick v. Ward, 5 Halsted, 87; in North Carolina by King v. Winants, 71 N. C., 469, where two persons agreed not to bid against each other for a government contract, to be given to the lowest bidder, and to share the profits of the contract when given to one of them; in Alabama by Carrington v. Caller, 2 Stew., 175, where an association was formed to purchase land at the public sales of the United States at the minimum price fixed by law, with a view to re-sell them at a profit; and by the Supreme Court of Maine in Gardiner v. Morse, 25 Me., 140.
The Supreme Court of Ohio, in Breslin v. Brown, 24 Ohio State, 565, have relaxed the rule somewhat by allowing it to be shown that the agreement for partnership was not intended to influence, and did not in fact, influence the bid of either party. See also Phippen v. Stickney, 3 Metcalf, 384; McMinn’s Legatees v. Phipps, 3 Sneed, 196; and Wicker v. Hoppock, 6 Wallace, 97, for the circumstances under which agreements for partnership among bidders may be entered into.
¥e think all the eases upon this subject will be found to agree in this: that where either the intention, the effect or the necessary tendency oí the combination is to stifle or limit competition, it is contrary to public policy, and when discovered will be stamped with marks of disapproval in any court of law or equity.
“ But it does not necessarily follow, because one person bids for himself and others, or because two or more persons join their capital for the purpose of making a purchase at such sale, that there has been an unlawful or fraudulent combination. There are occasional instances in which the value of the property sold is so great that but few persons in the neighborhood are possessed of the means requisite for its purchase, and in which competition would be diminished rather than increased by prohibiting the aggregation of capital. Other instances frequently occur in which two or more persons may lawfully unite in making a purchase.’' Freeman on Executions, Sec. 297.
To make a practical application of the principles we have announced to the case in hand: The answer alle-‘ •ges that-George Woodruff’, to obtain said contract, colluded and confederated with his competitors at^the first letting, and entered into an arrangement with them, the the substance of which was that he should put in a bid in his own name for each class of the work to be let, but the contract if awarded to him, should enure to the equal benefit of them all. This allegation we regard as proved by the affidavit of the persons interested in said contract. And we see from an inspection of the exhibits attached to the bill that George Woodruff’ did submit proposals, slightly below the maximum figures allowed by law, which were accepted by the Board. It was further averred that it was agreed at the same time that the Union Printing Company should put in a bid at the maximum rates, so as to present the appearance of competition, and show that Woodruff was the lowest bidder. This was a material averment, but there is no proof in the record to sustain it, and we can give it no weight.
But the confederation of bidders being admitted, or established by proof, it devolved upon the plaintiff to show that it was for the joint prosecution of a business enterprise, and not a mere device to shut off or reduce competition. Now they depose that they had no design to get an advantage of' the State, or to suppress bidding, by which we suppose they mean bidding by persons outside of the combination. For certainly it could never have been contemplated that these dormant partners should be at liberty to put in independent bids of their own, if they chose.- That would have been an act of bad faith to the partnership. Tet they show no other motive for combining except the motive, so obvious that it will be ‘inferred, of getting rid of the competition of each other, by the surrender of each to the other of a portion of the work and anticipated profits. “We cannot presume they united for want of means to undertake the entire job; for they had each proposed to do it singly and alone.
Again, the burden of proof was upon the plaintiff to show that the State had received no detriment by their combination. They do indeed swear that the prices at which the contract was awarded to Woodruff were fair. But this is too general. It ought to have appeared that those prices did not greatly exceed the average of what they were willing to undertake the work for singly. Finally it should have been shown that the natural and necessary tendency of the combination was not to reduce the number of bidders. And this we imagine, was in the present case, au impossibility. The combination, so far as we can see, included all the bid ders at the first letting. And upon the short notice that was given, it was not likely.that any others would appear. The probable effect of the combination was to reduce the competition to zero, and to allow the persons concerned to dictate the prices to the Board.
The legislature might have ratified this contract; Hasbrouck v. Milwaukee, 21 Wis., 217; or have acquiesced in it. But they have repudiated it. And the question is, has the State the right oí rescission ? For we attach to the act no greater force or effect than an offer to rescind.
The decree of the Chancellor is affirmed.
SEPARATE OPINION By'
Eakin, J.
The act of the last General Assembly, regarding this contract, can only be considered as an expression of a determination to rescind it. The right of the State to do so is a judicial question, to be determined by the Courts. If it be found that the right has been fairly and properly exercised, in accordance with principles regulating the contracts of individuals; or even if the matter be doubtful, comity requires that the Courts should not interfere with the action of a co-ordinate department of the government in a matter primarily subject to its direction. It is in this view of the case, only, that I yield my assent to the decision of the Court sustaining the action of the Chancellor in refusing the injunction. Injunctions are not of positive right. They rest largely in a sound discretion, to be often determined by a nice balancing of the dangers and inconveniences, pro and eon. There are reasons of public policy which require great delicacy in its exercise, where it might embarrass the ordinary and necessary operations of the government. In such cases the wrong should be clear,- and the mischief eminent and irremediable; or the parties should be left to their legal rights. And in all cases where there.would be an effective legal remedy against individuals for breach of contract, I am not sure the equity for an iujunction against the State would arise to prevent the action, through her govermental agencies; from the fact that she could not be compelled by the courts to make redress. It is perhaps more in accordance with a just sovereignty to suppose she will herself make all proper compensations. I am not satisfied, however, nor do I deem it necessary, in sustaining the order of the Chancellor, to establish it as a precedent that the letting of the contract was clearly voidable at the will of the General Assembly, upon either oí the grounds disclosed by the trans-script. If it were presented as a legal question to be authoritatively decided, and not as the ground for an injunction addressed to the sound discretion of a Chancellor, I would hesitate to say that there was such want or defect of notice of the biddings as should deprive the contractors of the benefits of the contract, after they had given bond, made expensive preparations and partly performed the work. All the notice had been given by the first advertisment which the policy of the act required. It is the general rule, on all sides concede^, that public sales may be postponed to another day, if from any cause the sale on the appointed day be prevented, provided sufficient notice of the future day be then and there given; and the original advertisement, if well made, will suffice. The authorities on this point, as shown by brief of appellant’s counsel, are numerous. It is difficult to see any difference, in principles, between sales by authority of law and the letting of public contracts.
It is true that in the case in judgment there was no suspension in action and formal postponement. All the bids were rejected, and proceedings by advertisment begun ah initio. There was no express warranty for that, nor was thete any express prohibition, but there was general authority to “let anew,” and there is n,o room to doubt that all the bidders were at the time, advised ..of the aotion of the Board It was not prescribed wbat advertisement should be given in such contingency, or that any should. The original notice and advertisment required by law had already been given, and had served all the beneficial purpose oí inv’ting competition. Every bidder had the privilege oí keeping his bid in statu, by renewing it, or of altering his bid to be more acceptable. The State had all that benefit, with the additional advantage of an increased competition. The contract awarded was at fair prices. So much is shown. This cannot, except in mere form, be distinguished from a case of postponement. The State had every chance of advantage, and is not shown to have been injured. Nor, independently of motives prompting caution, in the issuance of an injunction (to thwart the express directions of the General Assembly contained -in a solemn act), would I be prepared to hold as a governing principle, that a combination of individuals to bid jointly in the name of one for a public contract, if made openly, frankly, and for honest purposes of their own profit and convenience, without any artifice to suppress competition in others, is so much against public policy as to render the contract voidable, at tbe arbitrary will of the other party, without the proof of some detriment or loss. There are some cases which seem to go to that extent, especially in the State of New York; but there are many per contra, in other States, especially in the States of Massachusetts and New Hampshire. It seems to me the latter cases are based upon sounder and higher views of public policy, individual liberty, and the requirements of modern enterprise. Business has undergone great changes in its modes and appliances within the last hundred years. The magnitude and difficulties of modern works require aggregation of individual means; and it may be that the greater facilities for their accomplishment, thus afforded, may enable companies and associations to undertake them at lower rates. A rule which would exclude such combinations, compelling individuals to compete with each other, would not only be an invasion of individual rights, but very questionable policy. I imagine the true and rational inquiry to be this : Not whether two or more agreed that one should bid for the common benefit, but was the association for honest and just purposes, free of fraud, without any artifice, concealment or practice to suppress competition on the part of others ? and for the purpose of enabling two members to do jointly what they could not so well do separately ? , If so, it should certainly be upheld. Such is the view of Mr. Story in his work on contracts. (Sec. 548, citing the authorities).
As this case stands upon the proof in the transcript, leaving out of view the unsupported allegations of the answer, T must confess I see nothing in the agreement of a fraudulent character or that militates against a sound public policy. Four firms, or offices, had bidden separately. None had been accepted. Not because they were, so far as appears, any of them unfair, but because the Board could not determine which was lowest. They then openly, without any concealment, with full knowledge of the board, as appears in proof, settled amongst themselves a tariff of rates upon which they could all agree, and put it in jointly, but in the name of one. This bid was open to competition by all the printers in the State, who had bid or might wish to come in on the extended time. We cannot presume there were no others. There is nothing to show that these contractors used any artifice, practice or means whatever; or meant to suppress such competition. I am not clear that this, and this as yet is all we can see, was against public policy. The General Assembly did not make any complaint of the contract as fraudulent or unfair, or impolitic; nor did the Chancellor make that any ground of his decision. If it is to be considered of importance’in refusing the injunction, I think the case should be remanded.
Whether the Attorney General might be able by proof, to sustain his allegations in full, I cannot foretell. The case went off below on another point, which being settled dispensed with proof as to fraud or improper practice. It would be well, being a public matter and peculiar, to remand it for further proof as to fraud. Nevertheless, as my associates do not share these views, but think the Chancellor right in refusing the injunction upon the case as made, I do not, for the reasons first stated, refuse my assent. | [
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Smith, J.
The appellant was indicted for removing mortgaged property and pleaded “not guilty.” TJpon the trial the State offered in evidence the mortgage, which bore an indorsement, over the. signature of the mortgagee, “to be filed but not recorded.” At the same time the State proposed to show by the evidence of the mortgagee that he signed the said endorsement upon the back of said instrument; that the mortgage had not been satisfied; that the property mentioned in the indictment was the same property that was described in the mortgage, and that the defendant had removed said property beyond the limits of Crawford county, without the consent of the mortgagee, and within three years before the finding of the indictment. But the Court excluded the mortgage from the jury because the endorsement was not in the words, “this instrument is to be filed but not'recorded.” The jury returned a verdict of acquittal. The State has removed the case here, not for the purpose.of putting the defendant again upon his trial, which of course can not be done, but to obtain the decision of this Court, to the end’ that the criminal law may be correctly and uniformly administered. Gantt’s Digest, Secs. 2128-9.
There is no question as to the execution and acknowledge’ment of the mortgage, nor as to the identity and removal of the property. But the act of March 10, 1877, provides that chattel mortgages may become a lien upon the property therein described and notice to all the world simply by being filed and left in the Clerk’s office. But in order to be thus filed, the mortgagee must indorse upon it “This instrument is to be filed but not recorded.” The Circuit Judge held that the precise words of the statute must be used or else no lien is created, because the filing, not for the purpose of recording, is unauthorized, except in so far as this particular act authorizes it.
It is the duty of every Court, when satisfied of the intentention of the legislature, clearly expressed in a constitutional enactment, to give effect to that intention and not to defeat it by adhering too rigidly to the mere letter of the statute, or to technical rules of construction. And any construction should be discarded that would lead to absurd consequences, Sedgwick, Const. and Stat. Constr., 196; Wilkinson v. Leland, 2 Pet., 627; United States v. Kirby, 7 Wall, 482; Oates v. National Bank, 100 U. S. 239.
In Nunn v. Goodlett, 10 Ark., 89, it was ruled that slight departures from the form of a bond prescribed by statutes would not avoid it, unless the statute expressly declared that such should be the effect of a variation. And in regard to the acknowledgement of deeds, this Court has several times decided that a literal conformity with the statute will be dispensed with, when there has been a substantial compliance with its requirements, as by the use of words of similar import. Jacoway v. Gault, 20 Ark., 190; Tubbs v. Gate-wood, 26 Id., 128.
We are told in the Holy Writ that “the letter killeth, but the spirit giveth life.” And it is a maxim of our law that he who sticks in the letter of an instrument or a statute goes but skin-deep into its meaning. The memorandum required to be endorsed upon the mortgage is simply a direction to the Clerk not to record at length. And it is unreasonable to suppose that the Legislature attributed any mysterious virtue or efficacy to the formula they have prescribed.
The mortgage with its indorsement should have been permitted to go to the jury. | [
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Eakin, J.
The appellee, Susan Jackson, filed this bill against Cannon for rescisión of a deed executed by her to Cannon in April, 1879, for certain tracts of land described as the N. W. ¼ of the N. E. ¼ and the N. W. ¼ of the S. E. ¼ of section 13; and the S. W. ¼ of the N. E. ¼, and the S. E. ¼ of the N. W. ¼ of section 24, in T. 9, South of Range 30 West. She charges that she is illiterate, cannot read nor write, and that the deed was never read to her; that she did not know that she was executing a deed, and never meant to; that she did intend to give a mortgage for a small sum of money, about $22.50, and that the defendant fraudulently filled up a blank form so as to make it an absolute conveyance, and falsely representing it as the mortgage she intended, obtained her signature and acknowledgement.
The defendant denies the fraud or that it was intended as a mortgage. He says it was a sale, and sets forth the consideration agreed upon and paid. He makes his answer a cross-bill for reformation ot the instrument, stating that the two forty acre pieces in section 13 are falsely described in the deed, by mistake, and that in place of them he purchased, and she intended to convey the S. E. ¼ of the S. E. ¼ of section 13, and the N. E. ¼ of the N. E. ¼ of section 24, together with the other lands correctly described.
The cross-bill is not answered. It may be said in passing that at least one of the tracts in the deed apappears, from the bill, to be erroneously described; since she sets forth her source of title, and it does not appear to have belonged to her at all, to-wit: the S. W. ¼ of the N. E. ¼ of section 13. There is, however, no contest nor issue as to the mistake. The sole question was as to the alleged fraud in procuring the land. The Chancellor found in favor of the complainant, rescinded the deed and rendered judgment; on the other hand, in favor of defendant against the complainant for a small sum, the supposed amount of the intended mortgage, hut without declaring a lien. Erom this, defendant appealed.
The question was one of fact as to which the onus was °n, the complainant, not only to raise a suspicion of fraud, but to show it with more reasonable degree of clearness, by preponderating testimony. The deed itself and the acknowledgment made a prima facie case for the defendant, as to the sale, and the mistake was not controverted either in the pleadings or evidence.
As to fraud, the complainant testifies in accordance with the charges, but her testimony finds little support in that of her other witnesses. The defendant also testifies on his part, staring that it was a purchase, and showing payment of consideration far in excess of the supposed mortgage. His testimony finds support in many material respects. Upon the whole, whilst there may be some doubt in the matter, we cannot find in the record such proof of fraud as to bring our minds into concurrence with that of the Chancellor. We do not think there was such clear and decided proof of fraud as, for the safety of human transactions, the policy of the law requires.
We think the Chancellor was mistaken in his conclusion, and that the original bill should have been dismissed, and the deed reformed in accordance with the prayer for cross relief.
Reverse the decree and enter a decree here reforming the deed so that in place of the S. W. ¼ of the N. E. ¼ and the N. W. ¼ of the S. E. ¼ of section 13, it may include the S. E. ¼ of the S. E. ¼ of section 13, and the N. E. ¼ of the N. E. ¼ of section 24, remaining in other respects the same.
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STATEMENT.
Eakin, J.
On the 12th of April, 1874, G. W. Logan died unmarried and childless, and, as was supposed, intestate. His heirs were two sisters and a niece, the daughter of a deceased sister, who, with their husbands, are ■complainants; also a brother, since dead, whose children, with the Administrator of Gr. W. Logan, ai’e defendants. Some time after the death of the latter, a paper purporting to be a will was discovered. It was probated in common form, without notice, and defendant Rogers was appointed Administrator, cum testamento annexo. The will vested all the property in the children oí the brother.
This bill was filed on the 29th of May, 1880, within three years after the probate, contesting the validity of the will, and seeking to set aside the probate. Complainants pray that a re-trial of the question may be had by a jury, on an issue of law to be made, and that they may recover their proportional share oí the estate.
A general demurrer was overruled, and defendants answered, denying the facts, or the effect of the matters charged as rendering the will invalid. Upon the issues thus arising, and without any formal issue of devisavit vel non there was a trial by jury and verdict for defendants..
Complainants moved for a new trial in proper form, upon the following grounds : — Eirst and second, for error in refusing and giving instructions; third, in excluding testimony; fourth, because the verdict was against law and evidence, and fifth, because the Court erred in allowr ing the cause to be tried without first directing an issue to be made up to try the validity of the will, and having the jury sworn to try whether it was or not the will of the deceased. The motion was denied, judgment entered, a hill of exceptions taken, and an appeal.
' OPINION.
The question is pi’esented in limine whether or not a Court of Chancery had j urisdiction of the subject matter, in the form presented and under the circumstances. ’ It must he confessed that the changes in our Probate law, effected, first, by the Civil Code of 1868, adopted almost literally from Kentucky; then by tbe abolition of tbe Probate Courts in 1873, and tbe transfer of original jurisdiction to the Circuit Courts, where it had formerly been appellate; then by the verbal alterations made in an effort to harmonize the system in Gantt’s Digest; then by ■the Constitution of 1874, which recreated the Probate Courts, restored their original jurisdiction, and meant to make it exclusive, have altogether introduced confusion and difficulty in the practice regarding the probate and contest of wills, which will require legislative action to entirely dispel, with the aid of a careful Digester. Meanwhile we must make the best of the disjecta membra of the old systems, which float in the confused whirlpool of changes.
It is not necessary, here and now, to determine whether the provision for an issue of devisavit vel non contained in Gould’s Digest (Sec. 32, Ch. 180) has survived the Civil Code, and passed the portals of the schedule of the Constitution of 1874, which continued all laws, then in force, consistent with its provisions. The compiler and examiner of Gantt’s Digest evidently supposed it had been superseded by the provisions of the Code, and omitted it from the latter compilation. Nevertheless, in the case of Tobin et al v. Jenkins et al, 29Ark., 151, which arose after the- Code, it was recognized by this Court, sub silentio, as unobjectionable'. There have been no decisions upon the point in cases arising under the Constitution of 1874, which, as we have said; resuscitated the Probate Coui’ts, and provided further, that they should have such exclusive original jurisdiction in matters relative to the probate of wills “as is now vested in the Circuit Courts, or may be, hereafter prescribed by law.” The proceeding by petition in the Circuit Court for an issue of devisavit vel non under Gould’s Digest is in so far original that it is independent of any appeal, or supervisory writ, but lacks originality and partakes somewhat of a supervisory character, in that it must be founded on some previous action of the Probate Court in establishing or rejecting a will, which it is the object of the petition to amend and rectify.
This case does not demand a definite and authoritative decision of this very important question, and we deem it prudent to waive it, until a case arises in which it may be directly presented and argued by counsel.
This was not a proceeding by petition to the Circuit Court for an issue of devisavit vel non, under the above cited section of Gould’s Digest, but a proceeding in equity under the somewhat analogous provision of the Civil Code in the 12th clause of Section 513 transferred into Gantt’s Digest as Section 5794. It provides “that any “ person interested who, at the time of the decision in “ the Circuit Court resided out of this State and was proceeded against by order of appearance only, without “ actual appearance, or being personally served with pro- “ cess; or any other person interested who was not a party “ to the proceedings by actual appear anee or being person- “ ally served with process, may within three years after such “ final decision in the Circuit Court, by a bill in Chancery, “ impeach, the decision and have a retrial of the question of “ Probate, and either party shall be entitled a jury for the “ trial thereof.”
This, evidently, is what was supposed to have suspended the proceeding by petition under Gould’s Digest, and as it is confined in terms to matters which had already been properly before the Circuit Court, there can be no question of its constitutional validity. This leads us to enquire what “final deicsion” is meant, and makes it necessary to take a short review of our legislation and the history of Gantt’s Digest. ^
The gentlemen who, in 1868, composed the General Assembly, and, in theory, represented the people were not careful in their laudable, if not well directed, zeal in reforming the old order of things in Arkansrs, to observe the injunction to festina lente. One step which had the double merit of despatch and ease, was to take the Civil and Criminal codes of practice of a sister State, as a solid body, and throw them into our system without much care as to how they might adjust themselves with our constitution and previous legislation. It is not quite clear, for instance, whether the old provision for an issue of devisavit vel non, can find a place in the mosaic.
The Chapter on Probate of Wills (Sec. 513) provided that they should be submitted to the Probate Court, either with or without notice to parties interested, and there proved and recorded, (see clauses 1st, 7th, 8th, 9th and 11th). An appeal was provided to the Circuit, and thence to the Supreme Court, (clause 2d). In the former, when the cause should be taken there, it was provided that all necessary parties should be brought in; and that upon the demand of any one of them, a jury should be empannelled to try “which or how much of any fastamentery paper produced is, or is not, the last will of the testator,” subject to appeal or writ of error to the Supreme Court. Thén came the 12th clause above first quoted, for the protection of those who had not been made parties. Obviously this last clause could not authorize a proceeding in Chancery where there had never been any appeal to the Circuit Court, nor decision there.
Afterwards, Courts of Probate were abolished entirely, and all their jurisdiction was transferred to the Circuit Courts. The compilers of Gantt’s Digest, in adapting it to the changes of jurisdiction "thus effected, often use the words “Circuit Court” on “Courts having Probate jurisdiction” in place of Probate Courts. Then came the constitution of 1874 restoring the former jurisdiction of the Probate Courts, leaving in the Circuit Courts only an appellate jurisdiction. This required a restoration of the original language of the acts. It did not follow, however, that the word “Circuit Court” used- in section 5794 was to be considered as changed and made to refer to the Probate Courts. so as to confer the right to file the bill on the final decision oi the latter. It had no reference to them before they were abolished, but originally applied as shown above only to Circuit Courts in cases which had been appealed and retried, Nor can that section now authorize such a bill as this based upon a mere probate in common form.
. The Chancellor erred in exercising jurisdiction. The bill should have been dismissed on demurrer, or on final hearing. The judgment must not stand as res judicata regarding the validity of the will, but that must rest upon the j udgment of the Probate Court.
Let a judgment be entered here, reversing so much of the judgment below as establishes the will, leaving it to stand as affirmed for costs against the plaintiffs. | [
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Robert H. Dudley, Justice.
Michael Corso taught school in the Springdale School District for two years and his contract was not renewed the third year. He sought redress before the school board pursuant to the Teacher Fair Dismissal Act of 1979. Ark. Stat. Ann. §§ 80-1264 et seq. (Repl. 1980). His efforts before the school board were unsuccessful and he filed a "Notice of Appeal” in circuit court in which he alleged that the Springdale School District violated the Teacher Fair Dismissal Act of 1979, supra, and The Arkansas Teachers’ Salary Law. Ark. Stat. Ann., Title 80, Chapter 13 (Repl. 1980). He asked for an order reinstating him to his job with back pay and costs. The Springdale School Board filed a motion to dismiss and, in the alternative, to transfer to chancery. The Circuit Judge, Honorable Paul Jameson, denied both motions. The School Board now petitions this court for a Writ of Prohibition to prevent the judge from exercising jurisdiction.
Prohibition is an extraordinary and discretionary writ which is not granted unless the petitioner is clearly entitled to it and the court against which it is sought is wholly without jurisdiction. Arkansas State Highway Com’n. v. Roberts, 248 Ark. 1005, 455 S.W. 2d 125 (1970). It is never issued to prohibit an inferior court from erroneously exercising its jurisdiction, but is issued only where the inferior court is wholly without jurisdiction, or is proposing or threatening to act in excess of its jurisdiction. Richards v. Maner, Judge, 219 Ark. 112, 240 S.W. 2d 6 (1951). Jurisdiction is tested on the pleadings and not the proof. Modern Laundry v. Dilley, 111 Ark. 350, 163 S.W. 1197 (1914). The pleading alleges that the petitioner school board violated the Teacher Fair Dismissal Act of 1979 and the Teacher’s Salary Law and, as a result, Michael Corso’s teaching contract was wrongfully not renewed. We do not decide if those allegations are correct or true, rather we decide if the circuit court is wholly without jurisdiction to hear them.
The cause of action pleaded by Corso is for an alleged breach of a contract implied by law. The subject matter jurisdiction for breach of contract is cognizable in circuit court. The prayer for relief asks two remedies, reinstatement and back pay, and both are within the jurisdiction of circuit court. The prayer for reinstatement is in the nature of a petition for a writ of mandamus. Ark. Stat. Ann. § 33-102 (Repl. 1962). A writ of mandamus will issue whenever the directors of a school district fail or refuse to do an act which is plainly their duty to do. Maddox, et al v. Neal, et al, 45 Ark. 121 (1885). A mandamus action against a school board is cognizable in circuit court and not in chancery court. Nethercutt v. Pulaski County Special School District, 248 Ark. 143, 450 S.W. 2d 777 (1970). The prayer for back pay is for damages alleged to be the result of the breach of a contract implied by law. In the event the trial judge rules that Corso has stated a cause of action the school district may plead mitigation damages. Maxwell v. Southside School District, 273 Ark. 89, 618 S.W. 2d 148 (1981). We cannot hold that the circuit court is wholly without jurisdiction.
Petitioner argues that one of the statutes relied on does not apply, that the statute is unconstitutional and that the pleading filed by Corso does not conform to the Rules of Civil Procedure. We do not address those arguments, or other similar ones, as the trial court has jurisdiction over the subject matter and the trial court must try the case, not this appellate court. The trial court’s decision can then be tested on appeal.
Petitioner tacitly recognizes that this court repeatedly has said that prohibition cannot be used as a substitute for appeal. However, petitioner argues that appeal in this case will not provide an adequate remedy and therefore the writ ought to issue. Such an argument is based upon a misconception of prohibition and appeal. Appeal lies in every case. It is guaranteed by our Arkansas Constitution. Prohibition lies where appeal would be available, but inadequate, because a litigant is not bound to submit to the exercise of jurisdiction not authorized by law. The true test is whether or not the lower court is proceeding beyond its jurisdiction. Monette Road Improvement District v. Dudley, 144 Ark. 169, 222 S.W. 59 (1920). The trial court is not without jurisdiction.
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Robert H. Dudley, Justice.
This divorce case involves the issues of venue and division of marital property. The parties moved to Arkansas in 1965 and since then have been domiciled here. There home was located in Russellville in Pope County. Their marriage reached the breaking point and on numerous occasions they discussed divorce. On April 16, 1980, appellee, David Bachman, made arrangements, unknown to his wife, to rent an apartment in Dardanelle, which is in Yell County and also made arrangements to have some movers transfer his furniture to that apartment upon notice. On Sunday, April 20, the parties had a heated argument and they agreed that Antoinette Bachman would file for the divorce. She asked appellee to move out of the home but he refused. On Wednesday, April 23, he left their home around 8:00 a.m. ostensibly to go to work. Instead of going to work he called his attorney and the movers. They moved some of his household furnishings four miles to the apartment in Dardanelle. At 10:00 a.m. he filed suit for divorce in Yell County, which is in a different judicial district from Pope County. Appellee, a physician and surgeon, continues to practice medicine at the same clinic in Russellville. He intends to remain a resident of Yell County and has contracted to buy a home there. There is very little dispute about the facts and the venue issue was timely raised. The Chancellor held that appellee had established residence in Yell County, and we affirm.
Among our divorce statutes, Ark. Stat. Ann., Title 34, Chapter 12 (Repl. 1962 and Supp. 1981), there are two separate residence statutes. One deals with jurisdiction and the other deals with venue. The jurisdictional residency statute, § 34-1208, requires a waiting period by one party or the other for sixty days before the commencement of the action and three full months before the granting of the decree. Residence in that statute is defined in § 34-1208.1. This jurisdictional statute was complied with as the parties have lived here for fifteen years.
The second residency statute, the venue statute, is the one at issue in this case. The proper county of venue is where the complainant resides. § 34-1204. We have interpreted this venue statute to mean domicile. Smith v. Smith, 219 Ark. 876, 245 S.W. 2d 207 (1952). No particular length of time is required for the establishment of residence, pursuant to the venue statute, but there must be actual presence coinciding with the intent to make it a permanent residence. Moon v. Moon, 265 Ark. 310, 578 S.W. 2d 203 (1979). The trial court found these two elements existed at the time of filing the complaint. In determining the sufficiency of evidence as to venue on appeal we review the proof in the light most favorable to the appellee, New York Life Ins. Co. v. Weeks, 201 Ark. 1160, 148 S.W. 2d 330 (1941), and findings of fact will not be set aside unless clearly erroneous. Rule 52 of Rules of Civil Procedure, Ark. Stat. Ann. Vol. 3A (Repl. 1979). Viewing the evidence in that light we cannot say that the holding of the chancellor was clearly erroneous and we affirm the holding that venue existed in Yell County.
David Bachman was granted a divorce in Yell County. Appellant appeals from a number of specific rulings which were made in the division of property. We reverse and remand on one of those points and affirm the others.
A part of the assets accumulated during the marriage consists of appellee’s interests in a profit-sharing trust agreement and in a money-purchase pension plan. The trust and pension plan are owned by a medical professional association in which appellee is a stockholder. The sole purpose of this profit-sharing trust is to enable the employees to share in the profits of the professional association. A participating employee has a vested interest in the plan, which is now fully distributive if an employee leaves the professional association and upon the occurrence of other contingencies. The trustee of the plan can purchase insurance contracts and appellee has $12,000 of cash surrender value in a whole-life policy owned by the plan. The profit-sharing trust can make loans to participating employees. Similarly, the money-purchase pension plan provides that a participating employee has present vested interests which can be paid out upon the occurrence of certain events.
In Fenney v. Fenney, 259 Ark. 858, 537 S.W. 2d 367 (1976), we held that military retirement pay was not personal property under the property division statute then in effect, § 34-1214 (Repl. 1962). In Knopf v. Knopf, 264 Ark. 946, 576 S.W. 2d 193 (1979), we held that railroad retirement funds were not divisible under the same statute. The general property division statute now in effect, § 34-1214 (Repl. 1962 and Supp. 1981), or Act 705 of 1979 as amended, defines marital property as all property acquired by either spouse subsequent to the marriage. See Warren v. Warren, 273 Ark. 528, 623 S.W. 2d 813 (1981). In Paulsen v. Paulsen, 269 Ark. 523, 601 S.W. 2d 873 (1980), holding that military retirement pay was not marital property, we stated:
Military retirement pay is not a fixed and tangible asset such as a vested pension or profit-sharing plan that may be collected in a lump sum. Rather, it terminates at the death and has no loan, surrender or redemption value. We agree with the decision of the trial court that military retirement pay is not marital property as contemplated by Act 705 of 1979.
In this case the profit-sharing trust agreement and the money-purchase pension plan have accumulated during the marriage and are marital property. There is nothing speculative or uncertain about the amount of money that appellee could have drawn out on the date of divorce. It belongs to him now, and if he wished, he could withdraw from the professional association and withdraw the money he has accumulated.
The Chancellor made an alternative ruling that, even if the trust and pension plan are marital property, appellant is not entitled to receive any of the proceeds from appellee’s vested interests. The applicable section of § 34-1214, the marital property statute, provided in 1980:
Division of Property. (A) At the time a divorce decree is entered:
(1) all marital property shall be distributed one-half to each party unless the court finds such a division to be inequitable, in which event the court shall make some other division that the court deems equitable taking into consideration (1) the length of the marriage; (2) age, health and station in life of the parties; (3) occupation of the parties; (4) amount and sources of income; (5) vocational skills; (6) employability; (7) estate, liabilities and needs of each party and opportunity of each for further acquisition of capital assets and income; (8) contribution of each party in acquisition, preservation or appreciation of marital property, including services as a homemaker. ***
A comparative analysis of the statute and the facts of this case is as follows: (1) The parties were married fifteen years. (2) There is no testimony about the health of the parties. At the time of the divorce appellant was 41 and appellee was 57. (3) Appellee is a practicing physician and surgeon and appellant is a non-practicing nurse. (4) and (5) He earns approximately $82,000 per year while she has no earnings. (6) He is employed by a professional association and she is employable as a nurse. (7) All of the rest of the substantial property has been divided. (8) His work has produced this property, but it is undisputed that he wanted her to remain in the home. She turned down employment because of his desire that she be a homemaker and active in the community. Her services as a homemaker are to be taken into consideration in determining the contribution of each party.
Upon analysis, we hold that the Chancellor’s ruling that appellant was not entitled to any part of this marital property was clearly erroneous. We reverse and hold that she is entitled to one-half of appellee’s vested interest both in the trust and in the pension plan which was, on the date of divorce, fully distributive to appellee upon leaving the professional association. The record does not contain this figure and appellant asks one-half ownership of the trust and pension plan. That proposal could be extremely unfair as appellant could then participate in the profits of the professional association earned after the divorce. We have concluded that this case must be reversed and remanded for the trial court to determine this amount and then award it to appellant. In exceptional cases this court may remand an equity case for additional proof if that is necessary to achieve equity. Arnett v. Lillard, 247 Ark. 931, 448 S.W. 2d 626 (1970).
Appellant urges other issues but we find no reversible error on those points. It would unduly lengthen this opinion to discuss each of them in detail and there would be no real benefit to the litigants, the bench or the bar.
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John I. Purtle, Justice.
This is an appeal from the denial of a Rule 37 Petition in which appellant alleged ineffective assistance of counsel.
The only point argued on appeal is that there is insufficient evidence to support the trial court’s order denying post-conviction relief. We disagree with appellant’s argument.
The motion for relief pursuant to Rule 37 of the Arkansas Rules of Criminal Procedure alleged appellant was denied effective assistance of counsel by counsel’s failure to call David Turney as an alibi witness. The appellant, the defense attorney and the proposed witness testified at the Rule 37 hearing. The witness testified that he told the defense counsel that the appellant was at his place sometime during the day of the robbery for which appellant was convicted. However, he told the attorney he could not give an exact time. In fact, he did not give the attorney even an estimate of what time of the day appellant was at his place of business. David Turney testified that he had been interviewed by an investigator for the defense counsel on two occasions and that he appeared ready to testify on the date of the trial. He further stated he was very nervous around the courthouse as he had previously been sent to the penitentiary. However, he now states that if he had been asked to give an approximate time the appellant was at his place he would have testified that appellant was at his place of business from about 9:30 a.m. until about 11:00 a.m. The robbery occurred about 10:00 a.m. across the river in Little Rock. The appellant admits that he was at the courthouse when the attorney interviewed the proposed witness and that he reluctantly agreed with the attorney’s decision to not use this witness.
The defense counsel, who was chief public defender for Pulaski County, testified that he interviewed Turney and was unable to get an estimate even as to the time appellant was at his place of business. He further stated that the witness was wearing a canvas work suit and that Turney had previously been convicted of a felony. The attorney stated as follows:
I didn’t use Mr. Turney because, based on my conversation with him, I believed his testimony would be rather vague. He could tell me only that he saw Mr. Brown that morning or something to that effect. He could give me no specific time. His criminal record and his anticipated demeanor on the stand led me to believe that he would not be a good witness. I communicated this opinion to the defendant.
The attorney testified it was always his practice to leave the final decision on v/hich witnesses to be called up to his client. He used the same procedure in this case.
We have recognized that the decision to call or not to call a witness generally is considered to be within the realm of the professional judgment of trial counsel. Swindler v. State, 272 Ark. 340, 613 S.W. 2d 91 (1981). While hindsight probably indicates this witness should have been called, when the evidence is viewed in the light most favorable to the state, as it must be, the failure to call the witness is an insufficient basis for post-conviction relief. Sheppard v. State, 255 Ark. 40, 498 S.W. 2d 668 (1973). “Mere errors, omissions, mistakes, improvident strategy or bad tactics will not. . . justify post-conviction relief.” Leasure v. State, 254 Ark. 961, 497 S.W. 2d 1 (1973).
Here, the attorney did not have all the information which is now claimed by appellant to have existed, and it further appears that the witness’s testimony was not consistent in the Rule 37 hearing. Under the circumstances of this case we do not believe that it can be said that the failure of the defense attorney to place this witness on the stand amounted to ineffective assistance of counsel.
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Adkisson, C.J., not participating. | [
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Robert H. Dudley, Justice.
Appellant Robert James Cook was arrested on October 12, 1980. On October 14, he was charged with rape, kidnapping, attempted murder, being a felon in possession of a firearm and being a habitual offender. It is undisputed that over the next five days he asked five different police officers, being all that he saw, for the appointment of an attorney. Seventeen days after his arrest, on October 29, an attorney was appointed. During this period he gave an in-custodial statement. His first appearance before a judicial officer was on November 13. The appellant subsequently moved to have all charges dismissed because of this lengthy delay. The trial court correctly refused to dismiss the charges because dismissal is not the appropriate remedy.
Rule 8.1 of the Arkansas Rules of Criminal Procedure, Vol. 4A (Repl. 1977), provides:
Prompt First Appearance
An arrested person who is not released by citation or by other lawful manner shall be taken before a judicial officer without unnecessary delay.
We adhere to our standard that this rule is mandatory, not discretionary, but that violation of it does not dictate a dismissal of the charges. Bolden v. State, 262 Ark. 718, 561 S.W. 2d 281 (1978). This standard, like those of searches and seizures, represents a necessary accommodation between the individual’s right to liberty and the State’s duty to control crime. On the limited issue of dismissal, the scales are tipped in favor of the State for when the defendant is found guilty he has suffered no prejudice as a result of being in jail. The remedy is to suppress the in-custodial statement, as was done. The Supreme Court of the United States, in Gerstein v. Pugh, 420 U.S. 103 (1975) at 118 stated:
In holding that the prosecutor’s assessment of probable cause is not sufficient alone to justify restraint of liberty pending trial, we do not imply that the accused is entitled to judicial oversight or review of the decision to prosecute. Instead, we adhere to the Court’s prior holding that a judicial hearing is not prerequisite to prosecution by information. Beck v. Washington, 369 U.S. 541, 545 (1962); Lem Woon v. Oregon, 229 U.S. 586 (1913). Nor do we retreat from the established rule that illegal arrest or detention does not void a subsequent conviction. Frisbie v. Collins, 342 U.S. 519 (1952); Ker v. Illinois, 119 U.S. 436 (1886). [Emphasis supplied.]
We affirm the action of the trial court in denying the motion to dismiss all charges.
The case was eventually set for trial on Monday, March 9, 1981. On the preceding Friday, March 6, the prosecuting attorney conducted a parley which was termed a pretrial conference. All of the State’s witnesses who were to testify at the trial attended, some voluntarily and some because they were subpoenaed by the prosecuting attorney. Ark. Stat. Ann. § 43-801 (Repl. 1977). The pretrial conference was conducted in the solemnity of the courtroom where the trial would take place the following Monday. The witnesses were placed under oath by the prosecuting attorney, § 43-801, and each then took the witness stand in front of the others. Each was told that perjury charges could flow from falsely testifying and the prosecutor then individually questioned them. Neither the trial judge nor the defense attorney knew of this pretrial conference until Martha McAlphin, the rape victim, disclosed it during the trial. From the beginning of the trial she, as well as all other witnesses, had been under “the rule,” but she testified that she had heard the testimony of the other witnesses. She testified that the date of the incident was October 12, “as far as everybody has been telling me” and “they said he pointed the gun at Mr. Cook but I didn’t see it; they told me that when we was in here; and they told me more or less what happened.” The defense attorney at that time discovered what had happened and moved for a mistrial. It was denied and subsequently the appellant was convicted on all charges. We reverse the trial court for declining to grant a mistrial. This issue creates practical difficulties and we expressly limit this holding to the precise set of facts before us.
We agree with the reasoning of the trial court that this conference technically was not a violation of “the rule.” Rule 615, Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001 (Repl. 1979) provides:
Exclusion of witnesses. — At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion.
The rule is only applicable during an evidentiary hearing presided over by the court and there is no requirement to sequester witnesses by either party during the investigation or preparation of a case.
The prosecuting attorney’s subpoena power stems from Ark. Stat. Ann. § 43-801 (Repl. 1977), which was passed by the General Assembly to implement the power of prosecutors to bring criminal charges by information. Amendment 21 to the Constitution of Arkansas. Ark. Stat. Ann. Vol. 1. For an excellent review of the history of the statute see Hall, The Prosecutor’s Subpoena Power, 33 Ark. L. Rev. 122 (1979). The relevant text of the statute is as follows:
The prosecuting attorneys and their deputies shall have authority to issue subpoenas in all criminal matters they are investigating; and shall have authority to administer oaths for the purpose of taking the testimony of witnesses subpoenaed before them; such oath when administered by the prosecuting attorney or his deputy shall have the same effect as if administered by the foreman of the grand jury.
Appellant contends that the language of the statute limits the use of the subpoena power to “matters they are investigating.” We do not so narrowly interpret the statute. The emergency clause states that the statute was enacted to enable prosecutors “to properly prepare criminal cases.” Therefore, subpoenas may be used to bring in witnesses to interrogate them about a case under investigation as well as to review their testimony before trial but after the case has been investigated. However, in this particular case, there was an abuse of the prosecutor’s subpoena power. The results of this particular procedure go beyond the realm of trial preparation, they even go beyond an effective denial of “the rule.” This procedure, without cross-examination, could be utilized to lead a recalcitrant witness to a desired answer in front of the others. Each would have heard the cajoled answers and each would understand the answer which the prosecuting attorney expected him or her to give. The pressure to conform could be great. The prospective witness would then give the desired answer under oath and in front of all the other witnesses. Each could then be warned of the penalty of perjury. All of this would take place immediately prior to trial and in the solemnity of the courtroom in which the case is to be tried. The result could well be that the witness would not have time to evaluate the process and then, at trial, the witness would parrot the cajoled answer. Equally as bad, this unreported procedure could serve as an effective method for a prosecutor to avoid disclosure of witnesses’ statements. The abuse of the prosecutor’s subpoena power in this manner could result in denying a defendant a fair and impartial trial. We do not question the good faith of the prosecutor in this particular case, but if this procedure were allowed to stand, a trial tactic would be authorized which could easily result in oppressive prosecutorial trial tactics. We disapprove of such a procedure. We conclude that the trial judge, upon learning what had happened, should have granted the motion for a mistrial and then rescheduled the case after an appropriate period of time.
Appellant makes other arguments which are not necessary to discuss for they are either without merit or not likely to recur at trial.
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John I. Purtle, Justice.
This is an appeal from two summary judgments which dismissed tort actions against the Carter Oil Company and the Carter Construction Company. The actions were brought by Mary Lou Lee and appellant, Larry Lee, who had received workers’ compensation benefits as an employee of Carter Oil Company. Appellants argue that there were genuine issues of facts to be determined and therefore it was error to grant the summary judgments. We agree with the appellants for the reasons set out below.
Larry Lee and his wife, Mary Lou Lee, lived in a mobile home on the Carter Oil Company property where she operated a self-service gasoline station. Mary Lou Lee received a straight commission on the sale of gasoline, not being paid by the hour, day or month. There were no withholdings from the commission paid to Mary Lou Lee for F.I.C.A. or income tax purposes. It was within her discretion to decide when to open and close the station. There is no indication in the record that she was subject to the control of Carter Oil Company. Her husband was drawing total disability benefits from the Social Security Administration. On occasion he would perform small duties around the station but was on no set schedule and received no pay for his services.
Carter Oil Company and Carter Construction Company were family owned corporations operating from the same office. A driver who was on the Carter Construction Company payroll was sent by his supervisor to deliver gasoline to the station operated by Mary Lou Lee. The driver delivered the gasoline in a Carter Oil Company truck to the Carter Oil Company owned station. During the delivery process he spilled a quantity of gasoline on the driveway. The appellant Larry Lee attempted to wash the gasoline away with a garden hose but during the process an explosion occurred and he was severely injured, receiving burns over 63% of his body. Also, his two small fingers were so badly burned they had to be amputated.
While appellant Larry Lee was in the hospital a representative of Carter Oil Company’s insurance carrier came to his bédside and took a statement wherein appellant stated he was employed by Carter Oil Company. Workers’ compensation benefits were immediately forthcoming through weekly payments as well as the payment of his medical expenses. No claim was filed by appellant with the Workers’ Compensation Commission, nor did appellant seek an attorney in any regard at this point. After he was released from the hospital the insurance carrier discontinued benefit payments and approached him about settling the claim. At this time claimant informed the carrier that he was not an employee of Carter Oil Company. Subsequently he filed a negligence action against Carter Oil Company and Carter Construction Company. The complaint alleged that the truck driver was negligent in transferring the gasoline from the delivery truck to the storage tanks and as a result of this negligence the appellant suffered severe and grievous injuries. He alleged the driver was an employee of the oil company and the construction company and that they were jointly responsible. The Carter Construction Company answered and denied that the driver was its employee and stated that the truck driven by him was owned by the oil company. Carter Oil Company answered generally, denied the allegations in the complaint, and affirmatively pleaded that appellant was an employee of the oil company concluding that workers’ compensation was his exclusive remedy. The oil company also alleged contributory negligence on the part of the appellant.
Carter Oil Company moved for a summary judgment on the grounds that there were no genuine issues of material fact to be determined by the court. In the motion they alleged that appellant was their employee and his remedy was limited to workers’ compensation benefits. Appellant responded to the oil company’s motion and alleged that the issue of employment status was a question of fact to be determined by the jury. He further stated there was a dispute as to whether the truck driver was an employee of the oil company. He also denied that he was estopped from asserting his tort action by having accepted workers’ compensation benefits which were voluntarily tendered to him. Appellant filed an affidavit that he was not employed by Carter Oil Company at the time of the accident and that his former supervisor at the oil company was aware of the fact that he was no longer an employee. Mary Lou Lee also filed an affidavit stating that her husband’s employment was terminated by the oil company in September 1977 and thereafter she operated the station on her own.
Carter Construction Company moved for a summary judgment on the ground that the truck driver was an agent-servant and employee of the oil company and not the construction company. The motion further stated that the construction company had no interest in the oil company. Therefore, Carter Constructon Company alleged, there was no genuine issue of fact. In response to this motion the appellant alleged that depositions which had been taken in the case did not establish ownership of the equipment or the truck involved. The response also stated that the questions of ownership, control and employment remained to be resolved.
The appellant responded to the interrogatories of the construction company stating that he was not employed at the time of the accident. He further stated that he understood his medical expenses were paid by the workers’ compensation carrier.
Carter Construction Company responded by interrogatories that the truck driver was their employee on the date of the accident and that he was obligated to haul construction company equipment for them. The construction company further stated that on the date of the accident the driver had been loaned to the oil company to perform duties as a truck driver.
The record revealed at the time the summary judgments were granted that the oil company denied the truck driver was their employee at the time of the delivery of the gasoline. The construction company claimed that he was their employee on that date but that he had been loaned to the oil company.
The workers’ compensation carrier alleges the appellant is estopped to deny that he was an employee of the oil company. The claimant alleged that he was not an employee of anyone and that the truck driver was an employee of the construction company and/or an employee of both companies.
The court granted the motions for summary judgment on the theory that the truck driver was an employee of the construction company at the time of the incident but was on loan to the oil company. It further held that Larry Lee was an employee of the oil company and that he had drawn substantial sums of money from the workers’ compensation carrier and could not recover in tort against Carter Oil Company. Although the court’s opinion did not state that appellant was estopped to deny his employment status, there was strong indication that this was a part of the court’s holding.
Both Larry Lee and his wife stated under oath that he was not an employee of the oil company. Carter Construction Company admitted that the truck driver was their employee but alleged he was on loan to the oil company at the time of the accident. The Carter Oil Company argued that the driver was not their employee but was performing work for them on loan from Carter Construction Company.
A summary j udgment is an extreme remedy and should never be granted if there is a genuine issue as to any material fact. In Arnold v. All American Assurance Co., 255 Ark. 275, 499 S.W. 2d 861 (1973), we stated:
The only conditions that justify granting a summary judgment are those under which the moving party is entitled to judgment as a matter of law. (Cites omitted). These conditions exist only when there is no genuine issue as to any material fact and when, even though the facts are undisputed, reasonable, fair-minded persons could only draw one conclusion from them. (Cites omitted). We do not find such a condition to prevail here. The burden was upon appellee to show its entitlement to summary judgment, and if there is any substantial evidence on which a contrary result could be reached, the judgment should be denied. (Cites omitted).
There are several facts which seem to be substantially disputed: (1) whether Larry Lee was an employee of the oil company; (2) whether the truck driver was an employee of the oil company or the construction company or both; and, (3) whether the appellant was estopped to deny his status as an employee after having received benefits from the workers’ compensation carrier.
As previously stated, both Larry Lee and his wife deny that he was an employee of Carter Oil Company. It is not seriously disputed that he did no substantial work around the property and that he received no money for the performance of any services. The only benefit he received was that his wife had a job and was furnished a place for the family to live. This certainly would not conclusively show that he was an employee of the Carter Oil Company.
The truck driver was admittedly on the payroll of the construction company and was sent by a construction company supervisor to deliver gasoline to the Carter Oil Company. Presumably the supervisor could have called him off the job and returned him to his regular job of delivering material for the construction comany at any time he chose. It is not impossible that the driver was an employee of both companies. It appears the pleadings, depositions and interrogatories at least place the issue of employment of both appellant and the truck driver in dispute.
The estoppel question is perhaps the most serious one in this case. It has been said that estoppel arises where, by fault of one party, another has been induced, ignorantly or innocently, to change his position for the worse in such manner that it would operate as a virtual fraud upon him to allow the party by whom he has been misled to assert the right to recovery. Bethell v. Bethell, 268 Ark. 409, 597 S.W. 2d 576 (1980). In the present case the insurance carrier went to the hospital and voluntarily started payments to the appellant. There is nothing in the record to indicate that appellant practiced a fraud upon the carrier. In fact, such an allegation is not even asserted in the pleadings. Certainly, the carrier is not damaged in this case because if the appellant makes a recovery, the carrier will be entitled to reimbursement from the proceeds of the recovery. It is obvious that the carrier, who was also the liability carrier for Carter Oil Company, would be out considerably less money if it were able to pay workers’ compensation benefits rather than full damages upon a recovery for negligence.
A summary judgment prevented a full hearing on the case and precluded any consideration by a jury of the allegations made by the various parties. A summary judg ment should be granted only in extreme circumstances. Trace X Chemical, Inc. v. Highland Resources, Inc., 265 Ark. 468, 579 S.W. 2d 89 (1979). A summary judgment should not be granted where reasonable minds could differ as to the conclusions they could draw from the facts presented. Arnold v. All American Assurance Co., supra, and Arkansas Rules of Civil Procedure, Rule 56 (c). It was the duty of the parties moving for a summary judgment to prove the nonexistence of a fact issue. Deltic Farm & Timber Co. v. Manning, 239 Ark. 264, 389 S.W. 2d 435 (1965).
We feel it was improper to allow summary judgments in this case as the record stood at the time of said judgments. Therefore, the case is remanded with directions to proceed in the usual manner.
Reversed and remanded.
Hays, J., concurs. | [
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Richard B. Adkisson, Chief Justice.
The only issue in this case is whether Union Bank by its own initiative can stop payment on a personal money order it had issued in exchange for a hot check and, thereby, cause Sequoyah Bank, a holder in due course, to bear the loss. Under these circumstances the loss must be borne by Union Bank which issued the negotiable instrument to be circulated in commerce.
We do not decide the question of whether the purchaser may stop payment, but we do hold that after the sale of a personal money order, the issuing bank cannot stop payment on the instrument.
A personal money order is issued with unfilled blanks for the name of the payee, the date, and the signature of the purchaser. Only the amount is filled out at the time of issue, usually by checkwriter impression as was done in this case.
The Uniform Commercial Code apparently did not directly contemplate the use of money orders and made no specific provision for them. Mirabile v. Udoh, 399 N. Y.S. 2d 869 (1977). It was recognized in Mirabile that it is the custom and practice of the business community to accept personal money orders as a pledge of the issuing bank’s credit. We may consider this custom and practice in construing the legal effect of such instruments. See Ark. Stat. Ann. § 85-1-103 (Add. 1961).
Appellee relies on the cases of Garden Check Cashing Service, Inc. v. First National City Bank, 25 A.D. 2d 137, 267 N.Y.S. 2d 698 (1966), aff’d. 18 N.Y. 2d 941, 223 N.E. 2d 566, 277 N.Y.S. 2d 141 (1966) and Krom v. Chemical Bank New York Trust Co., 313 N.Y.S. 2d 810 (1970), rev’d. 329 N.Y.S. 2d 91 (A.D. 1972) which held that a purchaser of a personal money order may stop payment on it. However, the only cited case to specifically address the issue of whether the issuing bank, on its own initiative, may stop payment on a personal money order is Rose Check Cashing Service, Inc. v. Chemical Bank N.Y. Trust Co., 244 N.Y.S. 2d 474, 477 (1963). In holding that the issuing bank could not stop payment and therefore must suffer the loss the court stated:
All of these differences between the instrument at issue and an ordinary check would seem to indicate that the bank would honor the order to pay no matter who signed the face of the instrument, assuming of course an otherwise valid negotiation of the instrument.
In the instrument in suit, the drawer purchases the instrument from the bank. The transaction is in the nature of a sale. No deposit is created. The funds to pay the instrument, immediately come within the bank’s exclusive control and ownership. . . .
The bank’s contention that the instrument is a check is inconsistent with its own acts. The bank (drawee) stamped “Stop Payment” on the instrument in suit on its own order. Nowhere in the Negotiable Instruments Law is there any provision that a drawee [bank] may “Stop Payment” of a check unless ordered to do so by the drawer.
Appellee also denies liability on the instrument based upon Ark. Stat. Ann. § 85-3-401 (1) which states that “No person is liable on an instrument unless his signature appears thereon.” Subdivision (2) of this same section provides that a signature may be “any work or mark used in lieu of a written signature.” The authenticity of the instrument involved here is not in question. The issuance of the money order with the bank’s printed name evidences the appellee’s intent to be bound thereby. Mirabile, supra.
Appellee also relies on Ark. Stat. Ann. § 85-3-409 for the proposition that it is not liable on the personal money order since it did not accept it. In our opinion, however, the appellee accepted the instrument in advance by the act of its issuance. Rose Check Cashing Service, Inc. v. Chemical Bank New York Trust Co., 252 N.Y.S. 2d 100 (1964).
The personal money order constituted an obligation of Union from the moment of its sale and issuance. The fact that Union was frustrated in retaining the funds because instead of cash it accepted a check drawn on insufficient funds is no reason to hold otherwise. We note by analogy that the Uniform Commercial Code on sales, Ark. Stat. Ann. § 85-2-403 (1) (b), provides that a purchaser of goods, who takes delivery in exchange for a check which is later dishonored, transfers good title to the goods.
Union placed the personal money order in commerce for a consideration it accepted as adequate and was, thereafter, liable on it. Banks are not allowed to stop payment on their depositor’s checks and certainly should not be allowed to stop payment on personal money orders. See Note, PERSONAL MONEY ORDERS AND TELLER’S CHECKS: MA VERICKS UNDER THE UCC, 67 Colum. L. Rev. 524 (1967).
Reversed.
Holt, Dudley, and Hays, JJ., dissent. | [
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STATEMENT.
English, C. J.
This was an action of ejectment, brought by C. J. Healey, in the Circuit Court of Carroll county, against Al. Grissom and A. W. Conner, for possession of a hotel situated on a lot in the town of Eureka Springs.
The complaint alleges that “the plaintiff is the owner and entitled to the possession of the Grand Central Hotel (now known as the St. Elmo House) in the town of Eureka Springs, Carroll county, which was erected by defendant Conner, on. land which belongs to the Government of the United States, and which is now standing as an improvement on public lands; which property was levied upon, sold and had been purchased by plaintiff as evidenced by a deed from the Sheriff of said county, a copy of which is filed herewith, &c., and which property *is in possession of the defendants unlawfully, and unlawfully detained from plaintiff by them.”
The Sheriff ’s deed made an exhibit to the complaint, shows that at the September term, 1880, of the Carroll Circuit Court, Mack & Co. recovered a judgment against A. W. Conner, upon which, an -execution- issued,. anffwas levied by the Sheriff on “The Grand Central Hotel (now known as the St. Elmo House) in the town of Eureka Springs, &c., the said hotel building being an improvement made upon lands belonging to the United States, by said Conner, said lands on which said building is situate being public land, a part of the unentered domain of said United States.” That the Sheriff advertised and offered the property at public sale, and it was purchased by B. R. Davidson, who transferred his certificate of purchase to C. J. Healy, and the deed conveys the property to him. It is dated August 12th, 1881.
Defendant Grissom disclaimed any interest in the property and denied that he was in possession of it, and was discharged.
Conner filed an answer in two paragraphs:
1st. Defendant admits it to be true, as alleged in plaintiffs complaint, that the house was sold at Sheriff’s sale, and purchased by plaintiff. That defendant, who is a married man, and the head of a family, and a resident of the State, erected said building and occupied the same as his homestead, and for a tavern house. That said house is worth about $2,450. That the debt for which said land was sold was contracted since October, 1874.
2d. Defendant for further answer says that it is true as alleged that said improvement was erected upon lands belonging to the U. S. Government, and defendant demurs to said complaint, and says that the same was not subject to said levy and sale as alleged. Wherefore he" prays judgment,” &c.
The Court overruled the demurrer to the complaint.
The cause was submitted to the Court sitting as a jury, by consent of parties.
-Plaintiff read in evidence the judgment of Mack & Co., against' Conner, the execution issued thereon, return and Sheriff’s deed, made an exhibit to the complaint, and proved demand of defendant of possession of the hotel properfy before suit. Also proved by the Sheriff that the property was regularly advertised for sale under the execution, and no one forbid the sale. That there was no cultivation on the land in controversy. That it was covered by the hotel, and none of it capable of cultivation. There were several hundred houses on the forty acres subdivision of government land on which the hotel was situated, many of them erected as residences, and families living in them before the hotel was built. The hotel was within the corporate limits of the town of Eureka Springs, and on lot No. 11 on the east side of Main street in said town.
Defendant testified that he was the head of a family consisting of a wife and two children, a resident and citizen of Carroll county, resided in the town of Eureka Springs on the property in controversy, and was residing on it at the time the levy was made, and at the time it was sold under the execution. He went to Berryville, and had a schedule prepared by an attorney and presented it to the Clerk ot the Carroll Circuit Court, who took it, and said he would attend to it as witness understood him, and witness returned home supposing the Clerk would do what was necessary to be done. The schedule was produced, and purported to contain all his property, real, personal and mixed — a large list of hotel furniture, a house and lot in Fayetteville, and the house and lot in Eureka Springs, known as the Grand Central Hotel.
Witness did not demand a supersedeas from the Clerk, or tender him his fees. He did not demand any fees. He owned a residence in Fayetteville, &e.
The Clerk testified that on. the 21st of March, 1881, (five days before the sale) defendant gave him the sched ule read in evidence, and he told him he would look into it. He showed the schedule to some attorneys, and they told him it did not comply with the law, and advised him not to issue a supersedeas. Defendant did not demand a supersedeas. Witness did not see him after he handed him the schedule', and never told him he would issue a supersedeas, nor gave him any reason to believe he would.
Plaintiff asked the Court to declare the law to be as follows:
“1. That the improvement of public land, on which the defendant, a resident of the State and head of a family resides, may be legally, sold under execution, unless the defendant in execution file a schedule claiming the same as exempt, and obtain a supei’sedeas from the Clerk of the Court issuing the execution.
“2d. That-one residing in improvements on public land, with no right of pre-emption, could not claim the improvements as exempt from execution, except by scheduling the same according to law.
“3d. That one electing to claim improvements on public land as a homestead, and exempt under Art. 12, Const. Ark., and filing a schedule, and failing to obtain a supersedeas, could not permit the same to be sold under execution without further opposition or notice to the purchaser, and insist in an action of ejectment, by the purchaser, that the same was not subject to execution.”
The Court refused the above declarations of law, and declared the law to be as follows:
“That Sec. 2626, Gantt's Digest, is in full force and effect and the law is in favor of defendant in this case.”
The Court found that the property was not subject to • levy and sale under execution, and-.that the purchaser took no title.
Plaintiff filed a motion for judgment notwithstanding the finding of the Court, which was overruled. He also filed a motion for a new trial, which was refused.
Judgment was rendered for defendant, and plaintiff took a bill of exceptions and appealed.
OPINION.
I. The Constitution of -1868 exempted from sale on execution, etc., personal property to the value of $2000, to be selected by the debtor, etc.
It also exempted a homestead not exceeding 160 acres in the county, or a lot in a town, city or village, to be selected by the debtor, etc. Art. 12, Sec. 1-6.
The schedule act of March, 28, 1871, (Gantt’s Digets, Sections 2625-42) provides that “Whenever any resident of this State shall, upon the issue against him, for the collection of debt, of any execution or other final process of any court, desire to claim any of the- exemptions provided for in Article twelve of the Constitution, he shall prepare a schedule, verified by affidavit, of the property which he claims as exempt under the provisions of said Article, and shall file the same with the Justice or clerk of the Court issuing such execution; and the said Justice or clerk shall thereupon issue a supersedeas staying any sale under such execution or final process, of the property in such schedule described,” etc.
In Norris et al v. Kidd, 28 Ark., 488, the Court said: “Our present Constitution says the homestead is to be ‘selected by the owner,’ but how, when and to whom he shall make application to select it, is not therein provided. The legislature, as it has the unquestioned power to do, has pointed out how, when and to whom the application to select shall be made;” And the Court decided that a failure or neglect to select the homestead in the manner pointed out by the schedule act was a waiver of the right; and having been neglected, a debtor could not set it up in an action of ejectment; that the exemption, if intended to be claimed, must be asserted by scheduling before the sale under execution. And this decision has been repeatedly followed. Turner v. Vaughan, 83 Ark., 457; Fritz v. Fritz 32 Ib., 327; Euper v. Alkire & Co., 37 Ib., 383.
So Article 9 of the present Constitution exempts from sale under execution personal property and a homestead to be selected by the debtor, not to exceed in value sums named. And the schedule to the Constitution provided that all laws then in force, which were not in conflict or inconsistent with the Constitution, should continue in force until amended or repealed by the General Assembly.
The schedule act of March 28, 1871, is not in conflict, or inconsistent with any provision of the present Constitution, and has not been repealed.
Appellee failed to schedule the hotel property in controversy, as a homestead, before it was sold under execution, in the manner contemplated by the statute.
He gave the clerk a schedule, but offered no fees, and did not demand a supersedeas, and the clerk being advised that it was not made out in compliance with the statute, did not issue a supersedeas. It was the duty of appellee to file with the clerk a properly prepared schedule, and see that a supersedeas was issued.
The first paragraph of the answer which set up the homestead claim, did not allege that the hotel property was properly scheduled and a supersedeas issued before the sale under the execution, nor was this omission cured by the evidence. The first ground of defence was not, therefore, made out.
II. The second paragraph of the answer was a mix ture. It admitted that the hotel was an improvement on public land, as alleged in the complaint; demurred to the complaint, and averred that the property was not subject to levy and sale under execution. There was no allegation that appellee resided on or cultivated the land at the time of the issuance of the execution. It was proved that he resided upon it, but that it was not cultivated, and was incapable of cultivation.
The Court decided, in effect, that it was not necessary to schedule the property; that section 2626 of Gantt’s Digest was still in force; that the property was not subject to execution, and the law was in favor of appellee.
Section 23, Chapter 60, title Execution. of the Revised Statutes, (approved March 3, 1838) enacted that “all improvements on the public lands of the United States” should be subject to he seized and sold under any execution upon any judgment, order or decree of a Court of Record.
But by act of December 5, 1840, it was enacted that:
“ Hereafter it shall not be lawful to levy upon and sell under any execution or decree, any improvement or right of pre-emption upon the public lands within this State, any law, usage or custom to the contrary, notwithstanding; provided, however, that no other improvement on the public lands, as aforesaid, shall be so exempt except those on which the defendant may reside, or cultivate, at the time of issuing such execution. Acts of 1840, p. 9.
This act became Sec. 23, Chapter 67 of English’s Digest, title Execution; Sec. 26, Chapter 68 of Gould’s Digest, same title, and its substance was carried into Gantt’s Digest as Sec. 2626, title Execution. This Digest was made and published after the adoption of the Constitution of 1868, and the digester and examiner did not regard the act as repealed by or in conflict with the provisions of Art. XII, title Exempted Property, of that Constitution.
It seems to have been the'public policy of the State to make it unlawful to levy upon and sell, under any execution, any improvement or right of pre-emption upon the public lands on which the defendant may reside or cultivate at the time of issuing the execution.
It was not necessary for the appellee to schedule the improvement on the public land in question, on which he resided when the execution issued, because the schedule act applies in its terms to exemptions provided for by the Constitution only. The debtor must schedule^ such articles of personal property and such homestead land as he may select and claim to have exempted under the provisions of the Constitution; but he need not schedule an improvement on the public lands upon which he resides or cultivates, because, as matter of public policy, the statute makes it unlawful to levy upon and sell such improvement under any execution. Personal and real property generally are subject to sale under execution, unless scheduled on claims of exemption, but improvements on the public lands, on which debtors reside or cultivate, are not subject to execution — the law forbids it.
III. The second paragraph of the answer did not as above shown, that appellee resided upon or cultivated the improvement in question at the time the execution issued, but there was no demurrer to it, and on the trial appellee was permitted to prove, without objection by appellant, that he erected the hotel on public land and resided in it before and after the issuance of the execution, levy and sale; and under the Code practice the Court must regard the answer as amended to correspond with, the proof, as held in Hanks v. Harris, 29 Ark., 323. Hence appellant was not entitled to judgment non obstante veredicto.
Affirmed. | [
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STATEMENT.
English, C. J.
On the 27th of October, 1881, Penzell & Co. commenced this suit, by attachment, against Stewart & Co., upon an open account for $127.40, in the Circuit Court of Yell county for the Dardanelle District.
About the same time other creditors of Stewart & Co. sued out attachments against them in the same Court.
The attachments were levied on goods as the property of Stewart & Co., and L. C. Adams was summoned as a garnishee.
The goods were sold as perishable property under an order of the Circuit Judge at chambers, and the sheriff returned that the proceeds of sale were $620.14 in cash and notes.
The attachments were sued out upon affidavits that defendants had sold, conveyed or otherwise disposed of their property, &c., with the fraudulent intent to cheat, hinder and delay their creditors.
Defendants filed in this case a motion to quash the writ of attachment for an alleged informality in the affidavit, which was overruled. In another of the attachment cases (Meyer Brothers v. Stewart & Co.) defendant controverted the truth of the affidavit, and it was agreed by the attorneys in the cases that the judgment in that case upon that.issue should determine the truth of the affidavit in this. There was a trial and judgment sustaining the truth of the affidavit in that case, and a like judgment was entered in this. The attachment being sustained, and defendant making no defense to the personam branch of this suit, judgment was entered against them in favor of plaintiffs for the amount of their demand, and the proceeds of the sale of the property attached, in the hands of the sheriff, were condemned for its satisfaction. (
It appears that L. C. Adams, summoned as a' garnishee, interpleaded for the property attached, in the case of Meyer & Brothers v. Stewart & Co., claiming title under a deed of assignment executed to him by Stewart & Co., and it was agreed by the attorneys of the parties that the judgment upon the interplea in that case should determine the claim of Adams, as assignee, to the property in this case. That the trial of the interplea resulted in'a judgment against Adams on the ground that the deed of assignment was fraudulent and void as against the attaching creditors of Stewart & Co., and a like judgment was, Under the agreement, entered in this case.
Adams filed his answer as garnishee, stating that he was' not, at the date of the issuance of, or the service of the writ of attachment and garnishment herein, indebted to said defendants Stewart & Co., nor had any moneys, goods, chat-ties, credits or effects belonging to them, or either of them, in his possession, &c..
Plaintiffs, Penzel & Co., entered a denial of the truth of the answer, and the issue was submitted to a-jury, under an agreement of the attorneys of the parties that the result of the trial should settle,like issues in, the other attachment cases.
Plaintiffs examined Adams on oath, and his statement was in substance as follows: That on the 25th of October, 1881, he took charge of the goods assigned to him by Stewart & Co., gaye-bond, filed a schedule required by. law,- and began the sale of the .goods. That he had been in possession ot the stock of goods, under the assignment, three days, when the sheriff seized them under the writs of .attachment in the suits of plaintiffs and other creditors. That during-the, time he was in possession of , the goods,, he sold part of them for $515.00 in cash, and before the levy- of the attachments und service of the garnishments, he paid out to Robert Turner, one of the preferred creditors in the assignment, .on his debt secured thereby, $125.00, and to G. L. Kimball, for rent, $25.00, and for clerk’s fees, &c., $10.50, making in all $160.50, paid by him put of the proceeds of the sale of the goods before the service of the writs of garnishment.: That after the writs were served on him he paid out of the proceeds of sale $85.00 to attorneys to defend theattachment suits against Stewart, & Co., That he had in his hands notes and accounts due Stewart & Co. at the time he took possession of the stock of goods, amounting to $101.40.
It was agreed by the parties that he should be allowed $30. as compensation for his services during the time he was in possession of the stock of goods.
The above being all the evidence, the Court instructed the jury, on motion of plaintiffs, and against the. objection of Adams,", that the deed of assignment being void (having been so declared by the Court on the trial of the interplea) they would find the amount of money held by Adams as assignee of Stewart & Co. at the date of the service of the writs of garnishment, less $30.00 allowed him as compensation; and further find the amount of notes and accounts in his hands as assignee of Stewart & Co.
And the Court, in effect, refused to instruct the jury, at the instance of Adams, that he was entitled to a credit for the $85.00 paid.out by him to attorneys for defending the attachment suits after the service of the writs of garnishment.
The jury found by their verdict that Adams, had in his possession at the date of the service, of the writs of garnishment $324.50 in cash, belonging to Stewart. & Co., and accounts due them amounting to $101.40.
The Court adjudged and ordered that Adams forthwith pay into Court the money found to be in. his hands by the jury, and turn over to the Clerk of the Court the accounts found to be in his possession, due Stewart & Co.
Adams moved for a new trial, which was refu-ed, .and he took a'bill of exceptions and appealed. ,
OPINION.
Appellant was allowed credit for all the money he had paid out before the service of the garnishment, and also a credit by agreement, of $30 for his services as assignee. The only question, therefore, presented on this appeal is, whether the Court erred in refusing to instruct the jury to allow him credit for the $85.00 paid by him to attorneys, after the service of the garnishment.
The garnishment was binding on Appellant from the date of its service, and fixed a lien on the money in his hands in favor of appellees, ami he afterwards paid it out at his peril. Bergman v. Sells & Co., 39 Ark., 101, and cases cited.
He had no right to pay out money in his hands upon which a lien was so fixed, to attorneys to defend the attach ment suits against Stewart & Co. Hunt v. Weiner et al, 39 Ark., 70.
It has been submitted by counsel for appellant that the proceeds of the sale of the goods attached in the hands of the sheriff, were more than sufficient to satisfy the judgment of appellees, and that it was needless to require him to pay into Court the moñéy, and to turn over to the Clerk the accounts, in his hands.
To this it may be answered that the record before us discloses the fact that’ there .'were several attaching creditors, and nothing to show that the whole of the'effects in the hands of the sheriff and in the hands of appellant were not required to satisfy their claims, and there may have been questions of priority to be settled by the Court in which appellant was not concerned, his only claim to hold the effects in his hands being founded on a deed of assignment which the Court had adjudged to be fraudulent and void as against the attaching creditors.
Upon the record before us the judgment appealed from must be affirmed. | [
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STATEMENT.
Eakin, J.
At the July term, 1881, ef the Crittenden County Circuit Court, a petition was presented purporting to be signed by a majority of the adult inhabitants within three miles of two Churches at Marion, situated about 200 yards apart. It sought an order to prohibit the sale, or giving away, of liquors within that area. J. C. "Williams and certain others, licensed vendors of liquor, were admitted to defend, and oppose the order. They filed a counter petition containing a great many names, together with a demurrer and answer to the original petition. The County Court sustained the demurrer on the ground that the question of license had been determined, at the last general election, in favor thereof. The petition was rejected, and the petitioners appealed to the Circuit Court.
There, upon motion of the opponents, a jury was empannelled to try the issues made by the petition and the matters alleged in opposition to it. • These were: 1st. That it was not signed by a majority of the adult inhabitants in the required circle; 2d. That it was signed by various females; 3d. That many of the signers had been obtained by undue influence; 4th. That a large number of them had withdrawn their names, and signed a remonstrance or counter petition, which was exhibited; 5th. That many of the signers resided more than three miles from said churches; 6th. That a large number of them were not permanent citizens and inhabitants; 7th. That many were under 21 years of age; 8th. That at the last general election the question of granting license had been voted upon and carried against prohibition, and 9th. That the defendants were liquor dealers and had license until the close of that year, and that the petition until that time was premature, as the adult inhabitants might then be different.
The jury found “that there were 806 adult inhabitants living in a radius of three miles” of said churches “and that the prohibition petition is entitled to 458 names, being a majority of 54. Therefore we find for the plaintiffs.”
Upon this the Circuit Court reversed the order of the County Court and ordered that “hereafter it shall be unlawful for any person or persons to vend, sell or give away any vinous, spiritous or intoxicating liquors,” &c., within said limits, ■ excepting. those who had already obtained license, and’ that no further license should be issued. ' There was a motion for a new trial, bill of exceptions and appeal to this Court.
OPINION.
Lest a bad practice should obtain by silence, it is x */ / x per to say that the petition is not such a one as is templated by the act of March 21st, 1881, commonly ed the local option law. That provides for a petition by by the adult inhabitants residing within three miles of any school house, church, &e., upon which the County Court, being satisfied that a majority of such inhabitants have signed such petition, shall make an order granting the prayer, that is, prohibiting the sale of liquors within that area. This is a statutory proceeding, and cannot be extended beyond its prescribed limits. Two points, as centers of circular areas, cannot be designated in the same petition, signed without distinction, by a majority oí the adult inhabitants living within three miles of both points, or of either one or the other point. In the first case the area would be less than one with a radius of three miles, and in the second case it would be greater. The statute confers no authority to make such an order as would result, in either case. Every adult inhabitant residing within three miles of any particular school house, church, &c., should be counted in determining the majority, that is in theory, and as nearly practically as possible, and no one living more than three miles from that particular house should be. This cannot be effected by designating two or more distinct buildings more or less widely separated, without any indication of one as the center for all. Where they are close together, it would probably make little difference, but embarrassments would grow as the distance widened, and the Courts can not fix the limits within which the practice would be permissible.
Nor is there any use of it. If two institutions are very close together, all the benefit to both would be obtained by taking either as the center of the six mile area. If distant, the law does not justify such sweeping prohibitions in one petition. If they may be 200 yards apart, why not three miles, in which case none could be estimated who did not reside between the two places — for they only could be said to live within three miles of both points. Or, if it be sufficient to live within three miles of either, then the inhabitants of a space nine miles wide might join in. The same principle, though in less startling manner, applies, until the points coincide. The petition should never have been entertained by the County Court. It was properly dismissed, but upon erroneous grounds. The act is constitutional, and saving licenses in existence when the order may be made, operates, although at the previous general election it may have been determined by vote, that licenses within the township would be permissible.
The judgment of the Circuit Court, after reversing the order of the County Court, was in part “that hereafter it shall be unlawful for any person or persons, to vend, sell or give away any vinous, spiritous or intoxicating liquors, &c., * * * within three miles of the Methodist Episcopal Church in the town of Marion, and the Pleasant Grove Baptist Church near the said town of Marion.” The statute does not authorize such an order.
The proceeding contemplated by the statute is not in nature of a suit between parties. It is a police proceeding for the better regulation of the internal affairs of counties, for the preservation of morals, and protection ’ 0f the peace of the citizens. The petition is only the jurisdictional condition upon which the Court acts, when satisfied that it contains the names of a majority of the adult inhabitants. The act provides for no remonstrance or counter petition, and the County Court is not required to notice them as in any sense evidentiary. It may do so, as calling its attention to the fact that the petition does not contain the names of q, majority, but the Court is confined to the determination of this point alone. If the signatures are genuiue, or properly authorized (which facts the objects oí the statute require to be taken as true, prima facie) then, unless the Court should for good reason permit them to be withdrawn, the only thing left for the County Court is, to satisfy itself that the names constitute a majority. This, it must do by the best modes fairly practical. It is not expected of the Court to order a local census. Much, in the nature of things, must he left to the discretion and judgment of the Connty Court. Counter petitions and remonstrances, signed by even the same parties, need not, of couse, prevail over the petition. It the original signatures were obtained intelligently and without fraud, and have not been erased before presentation, or afterwards by leave of the Court, they fulfill the requirements of the statute, and Confer jurisdiction. This is not a case where the statute provides for an issue to be made by remonstrants, as in the case of annexation of territory to towns, or the laying out of new roads. The General Assembly does not seem to have contemplated that any citizen not already licensed, had such a vested interest, in the matter of selling liquor near a church or school, as required protection. It is altogether ex gratia, that the opponents of the petition were admitted to resist it; although it is doubtless good practice, and facilitates the investigation of truth.
The County Court had orignal exclusive jurisdiction of the subject matter, and was entrusted with the duty of determining whether the conditions existed for the ex ercise of the power of prohibition. It held that they did not, because the township had declared by ballot at the general election in favor of license. This was erroneous and properly so held on appeal. It was then the duty of the Circuit Court, having possession of the case, to retain jurisdiction, and try the case de novo. Dodson, et al. vs. Ft. Smith, 33 Ark., 508. In doing that the Circuit Judge assumed the place of the County Judge, and the course of proceedings should have been regulated accordingly, It was not a case for a jury trial. There were no pleadings making issues, fit for a jury. There was simply an appeal to the County Court, by a portion of the citizens, asking a police regulation, which it was the duty of the Court to make, on being satisfied that such citizens constituted a majority of the adult inhabitants. The statute had prescribed no evidence to be used for that purpose, and without an actual census taken and proved by witnesses, the fact could not be proved, if adherence to the common law rules of evidence were required. There are no official records of the number of adult inhabitants within three miles of any spot. To require a count of noses would be absurd. Evidently the statute contemplated that the Judge should exercise his judgment in the matter, with the best aids, his own common sense might suggest, or which might be afforded him by persons admitted to intervene.
So with the Circuit Judge on appeal, with this qualification, that if the County Court had adjudicated upon the fact, pro or eon, it would be the duty of the Circuit Judgé to attach great weight to his decision, and sustain it, if not pretty clearly erroneous. See upon this point, the remarks of this Court in the case above cited.
To submit the matter to a jury was not strictly .proper. It was triable by the Court most appropriately. If the Court chose, with the assent, or request of the parties, to avail itself of the judgment of twelve men, empannelled as a jury, whilst we would reprobate the practice as improper, inconvenient and unduly expensive, we would not be critical as to the qualification of the jurors, or the technical nature of the evidence admitted to their consideration. That would be putting the exercise of a police regulation, affecting the vested rights oí no one, upon the same footing with-a contest between individuals regarding private, legal or equitable rights. The constitutional right of trial by jury, is confined to cases, which by course of common law, were properly so triable before. Section 4642 of Gantt’s Digest, following a provision that issues of fact in proceedings at law for the recovery of money, or specific property, must be tried by jury, unless such trial be waived, enacts that “all other issues of facts whether arising in proceedings, at law or equitable proceedings, shall be tried by the Court, subject to its power to order any issue or issues to be tried by a jury.” This is not intended to enlarge the province of jury trials, and make things triable by juries which never were before. It confers no new powers.
The final order of the Circuit Court, if otherwise proper, falls short in this; that it does not remand the case to the County Court with directions to make the order its own. The administration of the license laws is entrusted to the County Court. That is the Court which is required to make the order, after which “it shall be unlawful for any person to vend, &c.” To its records alone is any one directed to look for such prohibitory order.
The proceedings have been erroneous and irregular from the beginning. The petition cannot be amended ■with less trouble than to commence de novo, designating a particular church, if one order can be made to suffice for both, or if not, then by separate proceedings tor each. To remand would be useless.
.For error in the j udgment of the Circuit Court, reverse the same, and dismiss the ease. | [
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Smith, J.
These were actions by the payee ■ against the makers of certain promissory notes. The answers admitted the execution of the notes, but set up matters in avoidance. When the causes were reached upon the call of the docket, an ■ application was made in behalf of the defendants for a continuance on account of the absence of themselves and other material witnesses, all of whom, except one, resided in the Indian Territory, but at no great distance from Eort Smith, where the Court was held; and also on account of the illness of Mrs. Watts, wife to the principal debtor.
We can not review the ruling of the Court refusing this application for the reason that the affidavit, upon which it is based, is not brought upon the record by bill ofexcepti©ns, and also because the refusal to continue for the term was no£ ma(je a ground of the motion for a new trial. Phillips vs. Peardon, 7 Ark., 256; Evans vs. Rudy, 34 Id., 384; Wise vs. Martin, 36 Id., 305.
The cause was set down for trial on the 29ih June, nine days later. On that day Watts failing to appear, his attorneys moved the Court to postpone to a future day of the same term, it being alleged that he was detained by the se^rious indisposition of his wife. This, motion was accompanied by letters from Watts and the physician in attendance on her. The cases were laid over until July 1 and again until July 2, when juries were impannelled to try the issues joined, verdicts returned and entered for the plaintiff in the three cases; Watts and his witnesses being absent and his attorneys protesting against being forced into a trial.
Motions for a re-trial, to which were attached affidavits, showing the physical condition of Mrs. Watts, were overruled. It appears from the affidavit of Breedlove, one of the defendants, that on the day of trial, Watts was in his store, ten miles from Ft. Smith, selling goods, waiting upon customers and attending to his ordinary business. He was asked why he was not at Court and if the trial of his cases had not been fixed for that day. He replied that*his lawyers had promised to inform him when they were to come on. Breedlove then told Watts' that according to his understanding, the cases had been postponed from June 29th to July 2nd, on account of his wife’s condition. Watts said she' had been right sick, but was better now.
Questions as to the trial or continuance of causes rests so much iu the sound discretion of the trial Court that it must be a very capricious exercise of power or a very flagrant case of injustice that the Appellate Court will interpose to correct. Campbell vs. Strong, Hempst. Rep. 265; Barris vs. Wise, 2 Ark., 33; Turner vs. Eustis, 8 Id., 119; Stewart vs. State, 13 Id., 720; Hunter vs. Gaines, 19 Id., 92; Stillwell vs. Badgett, 22 Id., 164; Wilde vs. Hart, 24 Id., 599 ; Thompson vs. State, 26 Id., 323; Edmonds vs. State, 34 Id., 720.
Affirmed. | [
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Smith, J.
Cunningham brought an action before a Justice of the Peace against Holland, the maker of a promissory note for $50.00, and sued out an attachment, which was levied upon the defendant’s interest in certain lands. The defendant never appeared to the action, but was brought in by constructive service through the publication of a warning order in a newspaper. An attorney ad litem was appointed for him, who reported that he was unable to learn his address, and knew of no defence. Holland’s children attempted to intervene, claiming to inherit from their deceased mother, and denying that their deceased father had any estate in the lands. A motion to strike out and disregard their interplea was denied by the Justice. The plaintiff then took issue on the interplea, alleging that Holland had curtesy in the lands. At this point the Justice, considering that the title to real estate was drawn in question, dismissed the action and the plaintiff appealed.
In the Circuit Court the interplea was dismissed upon demurrer. The record then proceeds to state that the cause was submitted to tbe Court sitting as a jury, although we are at a loss to understand what issue was to to be tried. Nevertheless, the Court heard testimony upon the point whether Holland had anything in the lands, found he had nothing, discharged the attachment and rendered judgment agaiiist the plaintiff for the costs of the action.
A Justice of the Peace has no jurisdiction of suits -where the title to land is involved, and the Circuit Court acquire hone on appeal. Const. 1874, Art. vii, Sec. 40, proviso; Fitzgerald v. Barber, 7 Ark., 305; School District v. Williams, 38 Id., 454.
It was proper, therefore, to dismiss the interplea, which sought to bring the title into controversy. And it was erroneous to adjudicate Holland’s title in an action which had originated before a Justice of the Peace.
. But the Justice had jurisdiction to render judgment for the plaintiff’s debt — not, indeed, a personal judgment, because it bad never acquired jurisdiction'of the defendant’s person, but a judgment to be satisfied out of the property attached. The Act of January 23, 1875, authorizes an attachment issued by a Justice to be levied on land when the constable can find no personal property. And this act was held constitutional in Bush v. Visant, 40 Ark. A sale under such levy would carry whatever interest the defendant had. And Mrs. Holland’s heirs, not being parties to this action, would not be prejudiced by any judgment that might be rendered, but in an action Of ejectment against them, or in a suit instituted by them to prevent a cloud upon the title, or to quiet their title, .might show that Holland had no estate in the land that was subject to attachment.
Reversed and remanded with directions to proceed to a trial, if the defendant shall enter his appearance and file an answer, otherwise to give judgment for the plaintiff.for want of an answer. | [
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English, C. J.
The indictment, (preferred January 10, 1882,) charged “that A. C. Johnson, on the 10th day of May, 1881, in the county of Johnson, etc., unlawfully did sell one pint of ardent liquors, the same being in quantities less than one quart, when no license authorizing the same had been previously procured from the County Court of said county by said A. C. Johnson, or by any other person; against the peace,” etc.
The defendant pleaded not guilty, was tried by a jury, convicted and fined $200.
He moved in arrest of judgment on the ground that the indictment was uncertain in the description of the offence, that it did not allege the name of the person to whom the liquor was sold.
The Court overruled the motion, and defendant appealed.
It is a general rule that in indictments for offences against the person or property of individuals, the name of the party injured must he stated, if it is known to the grand jury, &c. State v. Parnell, 16 Ark., 506; State v. Cadle, 19 Ib., 613. But see Gantt’s Dig., Sec. 1786.
In this case appellant was not charged with any of-fence against the property or person of an individual, but the gravamen of the offense charged is the selling of liquor without license, in violation of a police statute of the State, (Act of March 8th 1879), and in such an indictment it has been decided by this Court that it is not necessary to allege the name of the person to whom the liquor was sold. McCuen v. State, 19 Ark., 630; Parnell v. State, 16 Ib., 506.
Affirmed. | [
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English, C. J.
The indictment charges “that John M. Butcher, on the 1st day of January, 1882, with force and arms, in the county of Nevada, &c., unlawfully did sell ardent spirits commonly called whisky, to one Dock Green, in quantities less than one quart, without first procuring a license from the County Court of Nevada county, to exercise such privilege, contrary to the form of the statute and against the peace and dignity of the State, &e,”
Defendant demurred to the indictment on the following grounds:
1. “It does not charge that defendant was a liquor dealer at the time it was alleged that he committed the offense charged in the indictment.”
2.- “It does not allege what license it was, whether State or county that defendant failed to procure.
3. “Does not state facts sufficient to constitute a public offense.”
The Court sustained the demurrer, discharged defendant and the State appealed.
I. The Act of March 8th, 1879, (Acts of 1879, p. 33), under which appellee was indicted, makes it unlawful, and an indictable offense, for any person to sell liquors, (except manufacturers, who may sell in original packages of not less than five gallons) without procuring license from the County Court; Secs. 1, 5.
“ No matter what the occupation of the seller may be, whether a liquor dealer or not, he cannot sell without license. Thus in Woods v. the State, 36 Ark., 36; it was held that a druggist was indictable for selling whiskey without license.
II. The statute requires the seller to procure but one license for selling at one place, for which he is required to pay the sum of $200, &c., one-half thereof for the use of the county, and one-half for the use of the State; Secs. 3, 4, 11. He is not required to procure a State license and a county license. He can procure no license without paying the sum required for the use of the State and county. The indictment alleges that appellee sold whisky without procuring a license from the County Court, &e., which was sufficient.
III. There is nothing in the general assignment; the indictment did state facts sufficient to constitute a public offense,
The judgment must be reversed, and the cause remanded to the Court below, with instructions to overrule the demurrer to the indictment and require appellee to plead to it. | [
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Smith, J.
The sole question which we are called upon to decide is, whether the act of July 23, 1868, authorizing counties to subscribe stock in railroads, was duly and constitutionally passed.
The history of the law, as disclosed by the legislative journals, is as follows: The bill was introduced into the House of Representatives on July 17, 1868, and on July 20th it was read the first time. The rules were then suspended and the bill was read a second time. Several amendments were adopted, all of which were for the mere purpose of filling blanks, except one.
On July 21st the bill was, by unanimous consent, read the third .time by title and passed by a vote of 45 to 1; the yeas and-nays being entered on the journal.' On the same day the bill was transmitted to the Senate, where it received a first reading. Then, under a suspension of the rules, it was read the second and third times and passed by a unanimous vote; the names of those voting in the affirmative and of absentees being noted on the journal. The bill was afterwards presented to and approved by the Governor, was duly enrolled and deposited among the archives of. the State, was' published as a law and has been recognized and acted upon by all the departments of tbe government ever since. Under its authority, it is said, more than $1,000,000 of bonds have been issued by the various counties.
I. It is objected that the bill was not read three times in the House, as required by Sec. 21, Art. V Constitution of 1868, because the journal shows that the third reading was by title only.
The several stages through which a bill passed in Parliament before it became a law were established by usage.
. “ Before the invention ofprinting, and when-the art of reading was unknown to three-fourths of the deputies of the nation, to supply this deficiency it was directed that every bill should be read three times in the House. At the present day these three readings are purely nominal; the clerk confines himself to reading the title and the first words.” Bentham Pol. Tac., II, 353.
The Constitution provides that every bill should be read three times on different days in each House before the final passage thereof, unless two-thirds of the House where the same is pending, should dispense with the rules.
In Smithee v. Garth, 33 Ark., 17, the third reading of the bill in the House and the first reading in the Senate were by title only; and although the act was held invalid, it was not for this cause, but it was intimated that in such cases the journal should show a suspension of the rules. The inference is clear that, in the opinion of the Court., it was competent for the house in which a bill was pending, by a vote of the requisite majority, not only to order a second or third reading on the same day, but also to dispense with the reading of the bill by sections.
. In English v. Oliver, 28 Ark., 317, a law was assailed because the bill had not been read three times on differ ent days in tbe House of Representatives, nor bad tbe rules been suspended. Tbe journal failed to show that it bad been read a first and second time, but did sbow a third reading by title. The Court sustained tbe validity of tbe act upon tbe ground that a third reading necessarily implied two previous readings. If tbe proposition now contended for were true, tbe bill bad never been read at all in tbe House.
In Worthen v. Badgett, 32 Ark., 496, the last two readings in tbe Senate of tbe bill for tbe act of April 29, 1873, were by title; and yet tbe act was sustained.
So that it is no longer an open question that, under tbe Constitution of 1868, bills might be read by title under a suspension of tbe rules. Tbe rule is probably different-under tbe Constitution of 1874, which requires bills to be read at length. Art. V.. sec. 22.
II. But it is further contended that, supposing tbe bill might have been read by title under a suspension oí tbe rules, yet the rules were never actually suspended.
As tbe greater contains the less, unanimous consent is probably equivalent to a suspension of tbe rules, or implies it. But if this be not so, tbe Constitution, under which this legislation was bad, did not require tbe journal affirmatively to show a suspension of tbe rules. And for tbe purpose of upholding a law which appears upon tbe statute book, we will presume this was done. Vinsant v. Knox, 27 Ark., 278; English v. Oliver, 28 Id., 320; Worthen v. Badgett, 32 Id. 516.
III. A third objection was, that tbe bill was read for tbe first time in tbe Senate on the same day that it pass-x ed tbe House, without a suspension of tbe rules.
The Constitution does not mean that a bill can not be read in both bouses on tbe same day, unless tbe rules are suspended. Tbe design of all such restrictions is to pre vent hasty and improvident legislation by giving members time to inform themselves about measures pending before them. Nothing could be gained by having a day to intervene between the passage of an act in one house and its first reading, in the other. It would have passed from the consideration of the house in which it originated and it would not be before the other house at all until it had been once read.
Such a construction presupposes a knowledge by the members of either house of the proceedings in the other,1 which, in the nature of things, it is not to be expected that they should possess. In the matter • of the several readings, each house acts independently of, and without reference to, the other. But the point has perhaps already been settled by State v. Crawford, 35 Ark., 237, where the bill, it seems, was pending in both houses on the same day.
IY. The fourth proposition is, that the bill, approved the Governor and enrolled in the office of the Secretary of State, differs from the bill which passed the General Assembly. The alleged variance consists in this: the original draft of the bill and the bill as it was enrolled and approved by the Governor provided that the County Court should submit the question of subscription to a popular vote upon the joint application of the President and Directors of the rail-road company and one hundred voters of the county. It is claimed that an amendment in the house, substituting “or” for “and,” authorized the election to be ordered upon the petition either of the railroad company or of one hundred voters. This variance can be detected only by a comparison of the original draft and the journal of the House with the enrolled act.
It is contended, in support of the act, that the enrollment is conclusive and that the Courts can not go behind it to the journals or the original draft for the purpose of examining into the contents of a bill, or the passage of a law.
This is certainly the rule in England. The oldest case on the subject which we have been able to find is King v. Arundel, Hobart's Rep., 109, decided in 1616. There it was sought to get rid of a private act of Parliament, which had the Xing’s assent and the great seal, because it was not the act of the Lords and Commons. At the trial in the Court of Chancery, it was proposed to show by the journal of the Lords that a proviso had been passed as a part of the bill. The question thus arose on the admissibility of the journal to impeach the act. The Court examined the journals and could not find that the act had been passed by both houses and said: “But now supposing that the journal were every way full and perfect, yet it hath no power to satisfy, destroy or weaken the act, which, being a high record, must be tried only by itself, teste me ipso. Now journals are no records, but remembrances for forms of proceedings to the record; they are not of necessity, neither have they always been. They are like the dockets of the prothonotari.es, or the particular to the King’s patents.”
And so it was held that the Courts could not go behind the authentication of the act.
This case, it is,believed, has never been departed from in England and it has been followed by the Courts of last resort in many of the United States. Eld. v. Gorham, 20 Conn., 8; Green v. Weller, 82 Miss., 650; Swan v. Buck, 40 Miss., 269; Pacific R. Co. v. Governor, 23 Mo., 362; Duncombe v. Prindle, 12 Iowa, 1; State v. Young, 32 N. J. Law, 29; Speer v. Plank Road Co., 22 Penn. St., 376; Evans v. Browne, 30 Ind., 514; Sherman v. Story, 30 Cal., 253; State v. Burt, 43 Cal., 560; Brodnax v. Groom, 64 N. C., 244; People v. Devlin, 33 N. Y., 269; People v. Commissioners, &e., 54 N. Y., 276; Fouke v. Fleming, 13 Md., 412; Mayor v. Harwood, 32 Md., 471; State v. Swift, 10 Nev., 176; Louisiana State Lottery v. Richoux, 23 La., Ann., 743.
But in some of these States, there have been oscillations of opinion on this vexed question, the effect, at least in part, of changes in the organic law. Brady v. West, 50 Miss., 68; State v. McBride, 4 Mo., 303; Bradley v. West, 60 Mo., 33; State v. Mead, 71 Mo., 266; People v. Purdy, 2 Hill, 31, and 4 Hill, 384; DeBow v. People, 1 Denio, 9; Commercial Bank v. Sparrow, 2 Den., 97; Thomas v. Dakin, 22 Wend., 9; Warner v. Beers, 23 Wend., 103; Hunt v. Van Alstyne, 25 Wend., 605; People v. Supervisors, 8 N. Y., 317; Berry v. Baltimore R. Co., 41 Md., 446; Legg v. Annapolis, 42 Md., 203; Southworth Bank v. Commonwealth, 26 Pa. St., 446.
The people of England have no written constitution defining and limiting the powers of their government. The Parliament being supreme, there can be no such thing as the passage of laws in an unconstitutional manner.
And the English rule is the safer in the absence of constitutional restraints upon the legislature in the mode of enacting laws. But to apply it in States whose constitutions contain minute directions about the formalities to be observed in the passage of laws, is to nullify provisions which were intended as safeguards against reckless and vicious legislation, however illusory such protection may prove to be. Thus the Constitution of 1868 ordains:
“EachHouse shall keep a journal of its proceedings and publish the same,” etc. “No bill * * * shall become a law without the concurrence of a majority of all the members voting. On the final passage of all bills the vote shall be taken by yeas and nays and entered on the journal.” “No act shall embrace more than one subject, which shall be embraced in its title.” “ No new bill shall be introduced into either House during the last three days of the session, without the unanimous consent ot the House in which it originated.” Art. V, Sections 16, 21, 22, 24.
Now, since the fundamental law declared that certain formal rules should be complied with before a bill came a law, and the appropriate office of the journal is to record the successive steps of legislative action, the inference is irresistible that this journal is evidence. Accordingly, in a majority of the States, where these fundamental requirements have been introduced, the possibility of overturning the statute roll by the journal exists. Sprangler v. Jacoby, 14 Ill., 297; Prescott v. Canal Co., 19 Id., 324; People v. Stearns, 35 Id. 121; Ryan v. Lynch, 68 Id., 160; Miller v. Goodwin, 70 Id., 659; South Ottawa v. Perkins, 94 U. S., 260; Trustees v. McCoughey, 2 Ohio St., 152; Fordyce v. Goodman, 20 Id., 1; Jones v. Hutchison, 43 Ala., 721; Mondy v. State, 48 Ala., 115; Osborne v. Staley, 5 W. Va., 85; Opinions of the Justices, 35 N. H., 579 and 52 N. H, 622; State v. Platt, 2 S. C., 150; Green v. Graves, 1 Doug., (Mich.) 351; Hurlburt v. Britain, 2 Doug., 191; People v. Mahaney, 13 Mich. 481; Supervisors v. Heenan, 2 Minn., 330; Commissioners v. Higginbotham, 17 Kas., 62; Hall v. Miller, 4 Neb., 505; Cottrell v. State, 9 Neb., 125.
This last has always been the rule in this State. Burr v. Ross, 19 Ark., 250; English v. Oliver, 28 Id., 321; Knox v. Vinsant, 27 Id., 266; State v. L. R., M. R. & T. Ry. Co., 31 Id., 716; Worthen v. Badgett, 82 Id., 516; Smithee v. Garth, 33 Id., 17; State v. Crawford, 35 Id., 237.
But, at all events, it is urged that we cannot go behind the journals for the purpose of examining the draft of the bill. In Loften v. Watson, 32 Ark., 414 and in Haney v. State, 34 Ark., 263, this court did exlamine the original hills introduced into the Legislature.
The true rule upon this subject was enunciated in Gardner v. Collector, 6 Wall., 499 : “We are of opinion therefore, on principle as well as authority, that whenever a question arises in a court of law of the existence of a statute, or of the time when a statute took effect, or of the precise terms of a statute, the Judges who are called upon to decide have a right to resort to any source of information which, in its nature, is capable of conveying to the judicial mind a clear and satisfactory answer to such question; always seeking first for that which, in its nature, is most appropriate, unless the positive law has enacted a different rule.”
In that case only the date of the President’s approval of an Act of congress was in question. In Scott v. Clark Co., 34 Ark., 283, this rule was followed by this court.
The enrollment is a solemn record, and the existence of the act is to- be tried by the record, and is not to depend on the uncertainty of parol proof, or upon anything extrinsic to the law and the authenticated recorded proceedings in passing it. But the enrolled act is not the only record in the case. The inquiry may be carried back to the legislative journals and the records and .files of the office of the Secretary of State. In the Matter of Wellman, 20 Vt., 656.
The original draft of the bill comes before us certified by its proper custodian. See. 2731 of Gantt’s Digest provides :
“• The Secretary of State shall receive from the Secretary of the Senate and the Olerk of the House of Repretatives all the records, books, papers and rolls of- the General Assembly and file the same as records of his office.”
Section 2450: “ Copies of any act, resolution or order of the General Assembly, commissions or other official acts of the Governor, and of all rolls, records, documents, papers, bonds and recognizances deposited in the office of the Secretary of State, and required by law there to be kept, certified under his hand and seal of office, shall be received in evidence in the same manner and with like effect as the original.”
Sec. 2 of the original draft of the bill read thus: “Whenever the President and Directors of any such railroad shall make application to the County Court of any county for a subscription by such county to its stock, specifying the amount to be subscribed and the conditions of such subscription, and .... of the voters of the county shall petition the Court for such purpose,” &c.
The only word on the tenth line was the word “and:” the remainder of the line being blank, which was wards filled by an amendment inserting the words “one hundred” before the words “of the voters.” It also pears from the manuscript journal that the House adopted this amendment: “Sec. 2, line 10, Add the word ‘or’ instead of ‘and.’” The published journal at the same place in the proceedings, reads: “Annex the word ‘or.’ ” This last reading is insensible, as it does not show that ‘and’ was stricken out and there is nothing on line 10 to which ‘or’ can with any propriety be annexed. However, the manuscript minutes are a higher grade of evidence than the printed copies and must control. They show with reasonable certainty that the House amended the bill by striking out ‘and’ and inserting ‘or,’
Does it follow that the bill which passed the General Assembly was not the same bill which was presented to and signed by the Governor?
In Cooley’s Constitutional Limitations, 135, it is said: “Each house keeps a journal of its proceedings, which is a public record and of which the Courts are at liberty to take judicial notice. If it should appear that any act did not receive the requisite majority, or that in respect to it the legislature did not follow any requirement of the Constitution, or that in any other respect the act was not constitutionally adopted, the Courts may act upon this evidence and adjudge the statute void. But whenever it is acting in the apparent performance of legal functions, every reasonable presumption is to be made in favor of the action of the legislative body; it will not be presumed in any' ease, from the mere silence of the journals, that either house has exceeded its authority, or disregarded a constitutional requirement in the passage of legislative acts, unless where the Constitution has expressly required the journals to show the action taken, as, for instance, where it requires the yeas and nays to be entered.”
This presumption of the due passage of laws was acted upon in regard to the three readings of a bill in Vinsant v. Knox, 27 Ark., 278, which has been followed in several other cases, as we have seen.
Now the Constitution of 1868 did not require amend-ments to bills to be entered on the journals. Conse- ? m or(ler to uphold the act, we will presume that qjouse receded from its amendment substituting ‘or’ for ‘and.’
Equally liberal presumptions have been indulged in by other Courts. Blessing v. Galveston, 42 Tex., 641; Miller v. State, 3 Ohio St., 475; McCullough v. State, 11 Ind., 424; Supervisors v. People, 25 Ill., 182; Commissioners v. Higginbotham, 17 Kas., 62.
"While the journals furnish evidence of legislative proceedings, so far as they go, yet Courts are not bound hold that nothing was done except what appears therein. Their silence is conclusive only in those matters where the Constitution requires them affirmatively to show the action taken.
It is notorious that these journals are loosely kept and their entries often unintelligible; that they are constructed out oí hasty memoranda made in the pressure of business and amid the distractions of a numerous assembly; that the reading of them each morning is frequently dispensed with and there is not a single guaranty of their accuracy or their truth, which is not in practice usually ignored. Nobody vouches for them and upon the final passage of a bill, they are not searched to know whether they contain enough to insure the law’s validity.
On their value as . evidence see 13 Central Law, Jour., 181.
The enrolled statute, on the contrary, has many guaranties for its correctness. It is enrolled under the supervision of committees of both houses, composed of members who are conversant with the proceedings of their respective bodies, and whose duty it is to compare it with the engrossed bill, the original draft and the journals. "We believe also that if has been the invariable practice in this State for the President of the Senate and the Speaker of the House to sign the same. It is then laid before the Governor, and if he approves it, is deposited with the Secretary of State and becomes a high and sacred record.
To make all legislation ultimately depend on the fidelity with which a journal clerk has made his entries, is, in the expressive language of Judge Black, in Thompson’s Case, 9 Opinions of Attorneys General, 1, to render the laws as uncertain as the terms of a horse trade. We fear to turn loose a principle which might devour the whole statute-book.
The judgment of the Chicot Circuit Court, quashing the levy of the County Court to pay interest on the bonds issued under this act, is reversed and the cause remanded with directions to dismiss the petition for the writ of certiorari. And the judgment of the Jefferson Circuit Court, denying the prayer for said writ, is affirmed. | [
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Smith, J.
This was an action in the name of the State for the use of Bradley county against the maker and assignor of the following instrument:
“By the first day of January, A. D. 1878, I promise to pay J. R. Barnett three hundred and thirty-eight 32-100 dollars in county scrip, with five per cent, interest from date. April 9th, 1877.
(Signed) A. C. Jones.
And endorsed :-Pay to Bradley County.
J. R. Barnett.
Oct. 8th, 1879.”
It was averred that the assignment was for value; that payment hac( been demanded of and refused by Jones, of which Barnett had notice, and that county warrants were, at the maturity of the paper, worth nine-five cents in the dollar.
A demurrer to the complaint was overruled and the defendants resting, a jury was called to assess the damages and upon the return of their verdict, final judgment was entered against both defendants.
It is urged that since the passage of the Act of February 27th, 1879, depriving counties of their corporate powers, a county can not maintain a suit, nor even become the assignee of a chose in action. But Sec. 3 of that Act provides that “when any county has any demand against any persona or corporations, suit thereon may be brought in the name of the State for the use of the county.”
As to Barnett, the Court erred in holding the complaint sufficient. Sec. 572 of Gantt’s Digest is expressly restricted to instruments for the payment of money alone. This was not a promissory note, but a special agreement for the delivery of property. Our statute makes all contracts in writing for the payment of money or property assignable. Gantt’s Dig., sec. 563; Hawkins v. Watkins, 5 Ark., 481, as modified by Owen v. Lavine, 14 Id., 389; Worthington v. Curd, 15 Id., 491.
But the assignor of a property note does not incur the liability of an indorser of negotiable paper; that is to say, he does not undertake to pay upon default of the maker and notice to himself. Before resort can be had to him, the assignee must have prosecuted the maker to insolvency, or it must be averred that the maker is notoriously insolvent, so as to render an action against him a vain and useless thing. Dent v. Ashley, Hempst., 55; Lemons v. Chouteau, Ib., 85.
Our statutes of assignments is in substance the same as the Virginia and Kentucky statutes on the same subject, and in the two cases last cited, some of the adjudications upon this subject are collected. The following cases will also be found to support the proposition we have stated. Hume v.Long, Rep’s., 6 T. B. Monroe, 115; Levi v. Evans, 7 Ben Monroe, 115; Chambers v. Keene, 1 Met. 293; Lee v. Love, 1 Call. 497, and cases cited by Minor in note to 3d Edition; Brown v. Hull. 33 Grattan, 23.
And the principle upon which the assignor’s responsibility rests being a failure of consideration, the measure of the responsibility, in the event of recovery, is the consideration paid for the note assigned and lawful interest. Duncan v. Littell, 2 Bibb, 425; Morehead v. Prather, 1 A. K. Marsh, 542; Davis v. Harrison, 2 J. J. Marsh, 190; Embry v. Steph enson, 3 Id., 268; Wood v. Berthoud, 4 Id., 304; Metcalfe v. Pilcher, 6 B. Monroe, 530; Elliott v. Threlkeld, 16 Id., 343; Short v. Trubue, 4 Met., 300.
The judgment against Jones is affirmed. As to Barnett it is reversed with directions to sustain the demurrer.
SEPARATE OPINION BY | [
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STATEMENT.
English, C. J.
In April, 1881, John Condry filed the following complaint against R. D. Moreland and R. Y. Hall, before a Justice of the Peace of Benton county:
“John Condry represents that sometime in 1880, the defendants without right, unlawfully and against the consent of this plaintiff, entered on the land of this plaintiff, and unlawfully, knowingly and tortiously gathered and hauled away 250 bushels of corn, tthe property of this plaintiff, of the value of $100.00, to the damage and injury of this plaintiff in the sum of one hundred dollars, wherefore plaintiff prays payment.
Peel & Rice, Att’ys.”
There was a jury trial before the Justice of the Peace, and verdict of not guilty as to both defendants.
The plaintiff, it seems, appealed to to the Circuit Court, where defendants filed seperate answers to the complaint.
Moreland answered, denying that plaintiff was the qwner of the corn alleged to have been taken by defendants, at the time of the taking of the same; and also denied that he took from the possession of plaintiff any corn.
Hall’s answer denied the allegations of the complaint.
The case was submitted to a jury, and they found the issue in favor of defendant Hall, and against defendant Moreland, and as to him assessed plaintiff’s damages at $31.00.
Moieland filed, a motion in arrest of judgment, on the ground that the suit was for a trespass on land, of which the Justice of the Peace had no jurisdiction, and the Circuit Court none on appeal.
The Court overruled the motion in arrest, and ordered judgment in favor of plaintiff against Moreland for $31.00 damages as assessed by the verdict of the jury, &c.; and he excepted and appealed.
There was no motion for a new trial, and no bill of exceptions setting out the evidence introduced by the parties at the trial.
OPINION.
The Statute provides that ordinary actions before Justices of the Peace shall be commenced by summons, but before the summons is issued, the plaintiff shall file with the Justice the account, or the written contract, or a short written statement of the facts on which the action is founded. Gantt’s Digest, See. 688.
In this case the action was not founded on an account, or a written contract, but an attempt was made to file, a short written statement of the facts on which the action was founded.
The complaint indicates that a trespass upon the corn, and not upon the land of appellee, was the gravamen of the action. And so appellant must have understood it, for in the answer filed by him in the Circuit Court, which was a plea to the merits, and not to the jurisdiction, he denied that appellee was the owner of the corn, and also that he had taken it from his possession.
Under the present constitution (1874), Justices of the Peace have original jurisdiction exclusive of the Circuit Court, in all matters of contract where the amount in controversy does not exceed the sum of one hundred dollars, excluding interest; and concurrent jurisdiction in matters of contract, where the amount in controversy does not exceed the sum of three hundred dollars, exclusive of interest. Art. 7, Sec. 40.
It is plain from all the proceedings disclosed in the transcript, that this suit is not founded upon any matter of contract between the parties.
Justices of the Peace also have “concurrent jurisdiction in suits for the recovery of personal property, when the value of the property does not exceed the sum of three hundred dollars.” Ib.
It is evident that this was not intended to be an action for the recovery of the corn mentioned in the complaint. The proceedings disclose none of the features of the Code action to recover the possession of specific personal property, or the common law action of detinue or replevin. See Gantt’s Dig., Chap. 115, Replevin, and note.
Justices of the Peace also have concurrent jurisdiction, “in all matters of damage to personal property where the amount in controversy does not exceed the sum of one hundred dollars.” Ib.
It is probable that the suit was brought under this clause of the Constitution, or at least that his Honor, the Circuit Judge, was of the opinion that the evidence introduced at the trial made a case within the jurisdiction of the Justice of the Peace under this clause of the Constitution, and therefore overruled the motion in arrest of judgment.
Upon the verdict, the Court rendered judgment of $31.00 damages, and refused to arrest the judgment on the ground that the Justice of the Peace before whom the suit was commenced had no jurisdiction of the subject matter of the action ; and in the absence of a bill of exceptions setting out the evidence, the presumption is that the judgment of the Court was right, there being nothing on the face of the record to forbid the conclusion that there might have been evidence, under the complaint, showing a cause of action within the jurisdiction of the Justice. Dicus v. Bright, 23 Ark., 110.
The gravamen of the complaint was that defendants unlawfully entered upon the land of plaintiffs, and tortiously gathered and hauled away 250 bushels of his corn, of the value of $100.00, to the damage and injury of the plaintiff, $100. Whether defendants converted the corn, after gathering and hauling it away, to their own use, or what became of it, or how it was damaged, is not alleged. All that might have been shown by evidence, under the complaint, on the trial, and the presumption is that it was, and that a case for damage to personal property, within the jurisdiction of the Justice, was made out, in the absence of any showing, by bill of exceptions, to the contrary.
Where a suit is commenced and prosecuted to a verdict in a Court of record, and a motion in arrest of judgment for want of jurisdiction of the subject matter is made, it may usually be determined on inspection of the record, without the aid of the evidence.
But this suit was commenced before a Justice of the Peace, which is not a Court of record, and where no formal pleadings are required, and the motion- in, arrest was made after trial anew in the Circuit Court, on appeal, on the ground that the Justice had no jurisdiction of the subject matter of the suit, and the Circuit Court therefore none on appeal, and in deciding such motion in arrest, strictness should not be observed in looking back at the proceedings before the-Justice.,
. Affirmed. | [
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Smith, J.
This was a bill to have a resulting trust declared in lands which a husband had purchased and caused to be conveyed to his wife; it being alleged that it was understood and agreed at the time that she should hold only a life estate, and that upon her death the lands should revert to him. The Circuit Court denied the relief and dismissed the bill.
The proofs disclose the following facts: — Milner, the plaintiff, in 1863, bought two lots, and again in 1869 two other lots, in the town of Searcy, for which he paid with his own means. The lots were unimproved, but Milner built a house upon them, in which he and his wife resided until her death. He was not indebted, but took the conveyances in his wife’s name upon the suggestion and advice of the vendor and under the mistaken impression that they would vest a title in, or operate for the joint use and benefit of both. Mrs. Milner died childless, her heirs at law being her brothers and sisters, who are made parties defendant. Milner continued to occupy the premises after his wife’s decease.
Milner’s vendor was Israel M. Moore, an old friend and distant relative, in whom he and his wife had great confidence. The question in whose name the deeds should be taken was freely canvassed between the three, viz: Moore and the husband and wife. All supposed that, if Milner should outlive his wife, the lands would by law descend to him. Mrs. Milner remained under this conviction to the day of her death and frequently mentioned the matter to her friends. At the time the first deed was taken, Milner was in feeble health and did not expect to live long. They were an elderly couple and in humble circumstances, apparently owning no other property except that in controversy. Mrs. Milner had not inherited, nor otherwise obtained, any property of her own except a cow, a bed and bed clothing which her parents gave her.
'When a man buys an estate and takes the deed in name of a stranger, a trust results by operation of law him who advances the purchase money. If, however, nominal purchaser is a child or the wife of the person from whom the money comes, it is presumed to have been an advancement or a gift. But this presumption is not conclusive. It may be rebutted by antecedent or contemporaneous declarations and circumstances which tend to prove the intention of the person who furnished the money to buy the estate that the grantee should hold as a trustee and not beneficially for himself. This doctrine, with all of its limitations and nice distinctions, is discussed in Dyer v. Dyer, 2 Cox, 92, and in the notes to that case in White & Tudor’s Leading Cases in Equity, 4th American Ed., Vol. 1, Pt. 1, 314 et seq.
It is urged in support of the decree below, that to engraft a trust upon these deeds is to permit their recitals to be contradicted. Yet nothing is more firmly established than that a resulting trust may be established by parol, notwithstanding the deed acknowledges the consideration to have been paid by the grantee. Lead. Cas. in Eq., 333; Boyd v. McLean, 1 John., Ch. 582; 1 Perry on Trusts, sec. 137; Hill on Trusts, 4th Amer. Ed., 165-6. The cestui que trust not being a party to the deed, is not estopped by its recitals or covenants to prove all the facts from which a trust may be inferred. Livermore v. Aldrich, 5 Cash., 431.
Resulting trusts are specially excepted from the operation of the Statute oí frauds. Gantt’s Dig., sec. 2963.
Nor does it make any difference that Mrs. Milner, the nominal purchaser and grantee in the deed, is dead. 1 Perry on Trusts, see. 138.
It is further insisted that such a trust can not be set up t as between husband and wife. At Law a wife cannot be trustee for her husband, nor viee versa. But there has never been any difficulty on this head in Equity. In that Court husband and wife are treated as distinct persons and the reports are full of cases where one of them has been held as trustee for the other. For an instance, see Dyer v. Bean, 15 Ark., 519.
A further objection was that the plaintiff did not pay the purchase-money at the time of purchase, lhe evidence con-r 1 x duced to show that he bargained for the lots before he paid for them; the payments not being completed until the deeds were made. This Court in Sale v. McLean, 29 Ark., 612, and in Duval v. Marshall, 30 Id., 230, said in effect that in order to create a trust of this nature, payment of the purchase money must be made at the time of the purchase. By this it was meant that the trust must arise, if at all, from the original transaction, at the time it takes place and at no other time; and that it cannot be mingled or confounded with any subsequent dealings. Some of the cases use the language, “at the date of the payment of the purchase money,” others, “at the time of the execution of the conveyance.” But all of them mean the same thing, namely: that it is impossible to raise a resulting trust so as to divest the legal estate of the grantee or his heirs, by the subsequent application of the funds of a third person to the satisfaction of the unpaid purchase money. Botsford v. Burr, 2 John., Ch. 406 ; Rogers v. Murray, 3 Paige, 390; Lead. Cases in Eq., supra, 338.
The trust arises out of the circumstances that the money ^ the real piirchaser, and not of the grantee in the deed, formed the consideration of the purchase and became converted into land.
Every case of this class ultimately turns upon the question whether it was the intention of the person who paid the money to confer the beneficial interest upon another or to secure a trust for himself. Perry on Trusts, sec. 151.
In the present case the proof is satisfactory that Milner did not intend am absolute gift of the land to his wife. Hence results a trust which a Court of Chancery will execute in his favor.
Oiir decision is not based upon Milner’s misapprehension of the legal operation of the deed. He and his wife evidently supposed that it would have the same effect as a deed to them jointly, and that the survivor would take the whole. And in Wallace v. Bowen, 2 C. L. Williams, (28 Vt.) 638, almost a duplicate of this case, and one which escaped the researches of the learned counsel who argued it, Chief Justice Redfield intimated that such being the mutual understanding, a Court of Equity would be justified in compelling the parties to allow it to have that operation. But it is a mere circumstance in evidence negativing Milner’s intention to make an absolute gift to Mrs. Milner, and disclosing his purpose to reserve an interest for himself.
The decree below is reversed, and a decree will be entered here, divesting the legal estate in the premises out of the heirs at law of Mrs. Milner and vesting the same in the plaintiff. | [
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English, C. J.
James "W". Corcoran brought this action in the Circuit Court of Jefferson County against the Little Eock, Mississippi Eiver and Texas Eailway Company for the value of goods, alleged in the complaint to have been received by the defendant, as a common carrier, at Arkansas City to be carried and be delivered to the plaintiff at Pine Bluff', under a bill of lading which exempted the defendant from liability for loss of, or damage to, the goods by fire, and which the complainant alleged were lost by the negligence of defendant.
The defendant answered that the goods were received, as stated in the complaint, on the warf boat R. E. Lee, at Arkansas City, which at the time was the receiving depot of defendant, at the terminus of its road on the Mississippi River, and that the same were burned by fire accidentally and without fault or neglect of defendant, on or about the 20th day of June, 1880, and so by virtue of the contract of shipment set out in plaintiff’s complaint, it being the only contract of shipment made with plaintiff, the defendant became released from all liability for the goods.
On the trial it was proved that the goods were lost by the burning of the warfboat R. E. Lee, used by defendant as a depot, and the evidence conduced to show that the fire was accidental, and without fault or negligence on the part of defendant or its agents in charge of the boat.
Defendant asked the court to instruct the jury that: “In this case the loss and damage by fire being excepted out of defendant’s liability, if defendant proved the goods were lost by fire, the burden of proof is on the plaintiff to show that the loss was caused by negligence.”
This instruction the court réfused, and in instructions given for plaintiff, ruled, in effect, that the burden was on defendant to prove want of negligence.
The jury returned a verdict in favor of plaintiff for the value of the goods; defendant moved for a new trial, which was refused, and it took a bill of exceptions and appealed from the final judgment.
In Little Rock, Mississippi River & Texas Railway Co. v. Talbot & Co., 39 Ark, 523, it was decided that when, by contract, a common carrier is exempted from liability for loss occurring by fire, the owner of the goods lost in transit .bv fire, must affirmatively prove that the loss was the result of the negligenee of the carrier or his agents, before he can recover for it.
Reversed and remanded for a new trial. | [
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Richard B. Adkisson, Justice.
Appellants are 12 property owners who have been assessed benefits by the city council of Forrest City pursuant to its establishment of Forrest City Improvement District No. 11, hereinafter District. The appellees include the District’s commissioners, assessors, its attorney at the time the District was formed, and the City of Forrest City. Appellants brought this suit on October 17, 1979, in the St. Francis County Chancery Court to enjoin the District from collecting assessments from the appellants, to require the District to assess lands in the District omitted by fraud from assessment, and to award damages to appellants for fraud. The complaint was dismissed for failure to state grounds upon which relief could be granted. This is an appeal from that judgment. We affirm in part and reverse in part.
In considering a motion for j udgment on the pleadings for failure to state facts upon which relief can be granted, Ark. Rules Civ. Proc. 12 (b) (6), the facts alleged in the complaint are treated as true and are viewed in the light most favorable to the party seeking relief. Blagg v. Fred Hunt Co., 272 Ark. 185, 612 S.W. 2d 321 (1981). We have not considered any defenses that were raised or could have been raised in reaching our decision.
The District was created by Ordinance No. 1237 on June 9, 1969, pursuant to Ark. Stat. Ann. § 20-108 (Repl. 1968) which requires a finding by the city council that two-thirds of the property owners in value have signed the petition to create an improvement district. In 1970, Ordinance No. 1260 was enacted assessing benefits on specific parcels as recorded in the clerk’s office. Ark. Stat. Ann. § 20-413 (Repl. 1968). Notice of the establishment of the District and of the assessments was duly published and no action was initiated in chancery court challenging the establishment of the District or the assessments within the 30 days allowed by statute; on appeal this notice is not challenged and is presumed to be sufficient.
Ark. Stat. Ann. § 20-416 (Repl. 1968) provides that if a suit is not brought within 30 days “[A]ll objections to the creation of the district or the validity of the assessment shall be forever barred and precluded.” However, our cases have held that such districts can be collaterally attacked even after the 30-day limitation has expired if fraud or demonstrable mistake can be shown. Little Rock v. Katzenstein, 52 Ark. 107, 12 S.W. 198 (1889).
Appellants rely on a letter written by the attorney for the District as a basis for the fraud. This letter was addressed to a local attorney with information copies to the mayor, one of the commissioners, and Mr. Charles M. Achinakian. This letter makes it clear that the property to be benefited by the improvements was not of sufficient value to justify the bond issue. The letter sought to include industrial plants and downtown businesses in the District for the purpose of increasing the valuation of the property, thereby making it easier to acquire the signature of two-thirds by value of all owners within the District. This letter assured the commercial and industrial owners that no assessment of benefits would be made by the District against their property even though they would be in the District.
Article 19, § 27 of the Arkansas Constitution provides:
Local improvements — Municipal assessments. —Nothing in this Constitution shall be so construed as to prohibit the General Assembly from authorizing assessments on real property for local improvements in towns and cities under such regulations as may be prescribed by law, to be based upon the consent of a majority in value of the property holders owning prop erty adjoining the locality to be affected; but such assessments shall be ad valorem and uniform.
Cases interpreting this section have held that the inclusion of property in an improvement district is conclusive of the fact that such property is adjoining the locality to be affected by the improvement. Little Rock v. Katzenstein, supra. Furthermore, we stated in Freeze v. Improvement Dist. No. 16, 126 Ark. 172, 189 S.W. 660 (1916), that property adjoining the locality to be affected is any property adjoining or near the improvement which is physically affected, or the value of which is commercially affected, to a degree in excess of the effect upon the property in the city generally, no matter how slight the excess benefit. In this case, we can presume that the property owners, by signing the petition to create the District, acknowledged that they would be benefited in some way. Therefore, appellants’ argument that the commercial and industrial property owners received no benefits and were fraudulently included in the District is not well taken. Furthermore, appellants cannot rely on demonstrable mistake in the establishment of the District because the letter is not a part of the face of the record — the creation of the District was not void.
However, the trial court erred in dismissing the portion of the complaint which alleged fraud in the assessments of the District. Ark. Stat. Ann § 20-401 provides:
As soon as said board of improvement shall have formed said plan, and shall have ascertained the cost of the improvement, it shall report the same to the city or town council, which shall appoint three [3] electors of the city or town, who shall constitute a board of assessment of the benefits to be received by each lot or block, or other subdivision of land within said district, by reason of the proposed local improvement.
And, Ark. Stat. Ann. § 20-404 provides:
Each of said assessors shall, before entering upon the discharge of his duties, take oath that he will well and truly assess, to the best of his knowledge and abil ity, the value of all the benefits to be received by each landowner by reason of the proposed improvements affecting each of said lots, blocks, or parcels of land or railroad tracks and right-of-way within said district. . . .
The allegations of the complaint, which we must take as true, state that the District used its power to make certain that those who had received the letter were not assessed benefits by the District and that the appointed assessors did not in fact assess the property in the District. The complaint also states that the assessors omitted the description of certain lands from their original assessment list and systematically excluded high value property from assessment and included low value property.
Paving Dists. 2 & 3 of Blytheville v. Baker, 171 Ark. 692, 286 S.W. 945 (1926) upon which appellees rely, is distinguishable from our case. In Paving Dist. we assumed that assessors did in fact assess all the property in the district, although they did not assess benefits to all property. Here, the complaint alleges that the assessors did not assess at all and never intended to do so.
We have defined fraud in Collier v. Bd. of Dir., 106 Ark. 151, 153 S.W. 259 (1913) asan intentnot to exercise an honest judgment, and not to make a true finding but to disregard the facts and make a false finding. The fraud alleged in this case as to the assessments in the District meets the above definition. A court of equity may correct this fraud, if proven, by requiring all property within the District to be assessed and by awarding damages if necessary.
Appellants argue that several streets which by the original ordinance of the city council were to be paved, have not been paved, and no adjustment of their assessments has been made. This part of the complaint, taken as true and taken in the light most favorable to the appellants, is sufficient to raise an issue for revision of the assessments and may be properly considered by the trial court on remand.
Affirmed in part; reversed in part.
Hickman, J., concurs.
Purtle, J., concurs in part, dissents in part. | [
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Darrell Hickman, Justice.
The question on appeal is whether the trial court was right in holding that the appellee, Mary Shinn, a widow, had an undivided one-fourth interest in land because she and her deceased husband held that interest by the entirety and not as tenants in common. We agree with the trial court and affirm the decree.
All we have is the face of the instrument itself. In such a case we are to find the intention of the grantor by examining the language used and putting ourselves as nearly as possible in the position of the parties to the deed. Gibson v. Pickett, 256 Ark. 1035, 512 S.W. 2d 532 (1974).
The relevant portion of the granting clause reads that the property is granted to:
. . . R. N. Shinn and Mary Shinn, his wife; Billy W. Shinn (single); Wayne M. Newton and Sarah Newton, his wife, & Shinn Investments Ltd. (Shinn Investments Ltd. being a limited partnership including G. J. Shinn and Mary Sue Shinn, general partners) GRANTEES... as tenants in common, . . .
By one interpretation this language could mean that every person named, the partnership being one person, held the land as tenants in common; that is, each had an undivided l/6th interest. That would be the holding if we decided that the words at the end “as tenants in common” controlled the entire granting clause. That is the argument of the appellants, and Ark. Stat. Ann. § 50-411 (Repl. 1971) is cited as authority for that argument. The appellants are the children of R. N. Shinn. R. N. Shinn died testate after the deed was executed and the appellants, by the will, would stand to acquire all their father’s l/6th interest by such a holding.
But we agree with the trial court’s interpretation of the language for three reasons. First, the only consistent finding, giving all the language some significance, is that four undivided interests were created. The two married couples are mentioned together, and in both instances it is spelled out that they are to be considered as one: “R. N. Shinn and Mary Shinn, his wife;” “Wayne M. Newton and Sarah Newton, his wife.” That language creates an estate by the entirety without question. Foster v. Schmiedeskamp, 260 Ark. 898, 545 S. W. 2d 624 (1977). Second, the punctuation in the instrument clearly separates the parties into four groups. The husbands and wives are named, then separated by a comma, or semi-colon, from the next named party. The punctuation clearly indicates that R. N. Shinn and his wife, Mary, are one; Billy W. Shinn is one; Wayne M. Newton and his wife, Sarah, are one; and, the partnership is one. Third, to hold that the words “as tenants in common” control would mean we would have to ignore the words “and wife” and the punctuation, and, in doing so, totally ignore any of the grantor’s intent that these factors relate. Ark. Stat. Ann. § 50-411 would only control this situation if the grantor had not granted the Shinns and Newtons their interests by the entirety. There is no doubt that husbands and wives can share their estates by the entirety with other grantees in common. See Dennis v. Dennis, 152 Ark. 187, 238 S.W. 15 (1922).
We do not commend the clarity of the language in the deed because it is not artful. But when the law, language, and punctuation of this instrument are all considered, the only interpretation that can be made, without ignoring any of those factors, is the one we have made.
The appellants also attempt to raise an issue for the first time on appeal. It is suggested that pleadings and documents filed by Mary Shinn in the matter of her husband’s estate reflect tht she does not claim that she and her husband held this interest by the entirety. That argument was not made at the trial level, the trial judge apparently ruling on the declaratory judgment suit without holding a hearing. The appellants should have sought relief from the trial court before appeal. We cannot consider the argument for the first time on appeal. Wilson v. Lester Hurst Nursery, 269 Ark. 19, 598 S.W. 2d 407 (1980); Hazen v. City of Booneville, 260 Ark. 871, 545 S.W. 2d 614 (1977).
Affirmed.
Hays, J., dissents. | [
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Richard B. Adkisson, Chief Justice.
Appellee, K-Mart, is a retail discount chain operating seven stores in Arkansas. Appellant conducted a use and sales tax audit of K-Mart for the period of April 1,1974, through December 31,1977. This audit resulted in the assessment of a use tax deficiency of $17,280.13 and a sales tax deficiency of $55,475.89. Each sum includes interst and 10% penalty. K-Mart paid the assessed sums under protest and filed suit for refund under the procedure permitted by Ark. Stat. Ann. § 84-4721 (Repl. 1980).
This appeal is from a Pulaski County Chancery Court decree holding: (1) that preprint advertising supplements printed out of state and delivered to Arkansas newspapers for distribution are exempt from the Arkansas Use Tax, Ark. Stat. Ann. § 84-3105 (Repl. 1980) and, (2) that K-Mart is entitled to retain money collected as sales tax from consumers since the amount collected is in excess of the sales tax authorized by Ark. Stat. Ann. § 84-1903 (Repl. 1980). We will consider each issue separately.
I
USE TAX
K-Mart contracted with an out-of-state printer to produce preprint supplements advertising its merchandise and contracted with newspapers within the state to distribute the supplements along with the newspaper on specified days. Arkansas newspapers charge K-Mart a fee based upon the newspapers’ general circulation. The record reflects that, generally, supplements to a particular newspaper carry the logo, name, of all newspapers in which it is scheduled to appear. This is known as a “gang logo.” However, one Arkansas newspaper required, during the taxing period in question, that the supplements bear the date of insertion and its name only.
Appellee argues and the chancellor concluded that preprint advertising supplements are a component part of the newspaper like many other pre-printed sections (e.g. comics) and are, therefore, exempt from the Arkansas sales and use tax. Specifically, Ark. Stat. Ann. § 84-1904 (f) (Repl. 1980) exempts from sales tax “gross receipts or gross proceeds derived from the sale of newspapers” and Ark. Stat. Ann. § 84-3106 (B) (Repl. 1980) specifically exempts from use tax any tangible personal property exempt from sales tax. However, in this case we do not reach the question of whether unassembled component parts of a newspaper are exempt as “newspapers” under § 84-1904 (f) since we decide that the supplements here in question are not a component part of a newspaper and therefore cannot possibly be exempt as “newspapers.”
In deciding what a component part of a newspaper is, we must first define “newspaper.” There is no statutory definition, but the term was defined in Continental Life Ins. Co. v. Mahoney, 185 Ark. 748, 49 S.W. 2d 371 (1932) in the context of statutes requiring legal notices to be published:
[T]he definition of a newspaper, within the meaning of the statute, is to be taken in its popular sense, which is one to which the general public would resort in order to be informed of the news and intelligence of the day, and which is published at stated intervals and carries reports of those happenings of general importance and interest to the ordinary individuals.
“Newspaper” has also been defined as “a paper that is printed and distributed daily, weekly, or at some other regular and usually short interval and that contains news, articles of opinion (as editorials), features, advertising, or other matter regarded as of current interest. ...” Webster, Third New International Dictionary.
In Friedman’s Express v. Mirror Transp. Co., 169 F. 2d 504 (3rd Cir. 1948), the court held that comics were an integral part of the newspaper for the purpose of an Interstate Commerce Commission exemption, and the court in Sears Roebuck & Co. v. State Tax Comm’n, 370 Mass. 127, 345 N.E. 2d 893 (1976) followed this reasoning in holding that preprint advertising supplements were within the definition of “newspaper.” However, we decline to follow the Sears case, relying instead on Caldor, Inc. v. Heffernan, Tax Comm’r, 183 Conn--(42 Conn. L.J. No. 43, p. 6) (1981), in which the court concluded that advertising supplements were not within the sales tax exemption given to newspapers.
We have considered the following factors in determining that preprint advertising supplements are not a component part of a newspaper:
1. Ownership. K-Mart purchased the supplements and ownership continued until the newspaper was delivered. Although the supplements were mailed to the newspaper, control, as an incident of ownership, remained with K-Mart until the distribution process of the newspaper was beyond recall. The newspaper was merely paid a fee for distribution of the supplements.
2. Preparation. These supplements were prepared by an entity totally independent of the newspaper and are not necessarily printed on the same type of paper as other parts of the newspaper.
3. Regular feature. Advertising preprint supplements are not a regular feature of any newspaper. A supplement defines itself as such, as opposed to purporting to be a component part of the newspaper. Furthermore, advertising supplements do not necessarily appear in each edition of a particular newspaper. Their appearance in the paper and the extent of its distribution is dictated by K-Mart’s advertising policy.
4. Privity of contract. The newspaper pays for the insertion of comic and similar supplements whereas K-Mart pays the newspaper to distribute the preprint advertising supplements.
5. “Supplement to” followed by “gang logo.” Unlike other supplements of a newspaper that bear only the logo of the specific newspaper of which they are a part, advertising preprint supplements bear the words “supplement to” followed by a “gang logo.”
6. Distribution. The advertising supplements are sometimes distributed separate and apart from the newspaper. In this case they were offered as free handouts at K-Mart stores, and it is stipulated that these handouts were subject to use tax.
Any tax exemption provision must be strictly construed against the exemption, and to doubt is to deny the exemption; the taxpayer has the burden of clearly establishing the exemption beyond a reasonable doubt. S.H. & J. Drilling Corp. v. Qualls, 268 Ark. 71, 593 S.W. 2d 178 (1980); Western Paper Co. v. Qualls, 272 Ark. 466, 615 S.W. 2d 369 (1981). In this case K-Mart has not met this burden. Therefore, we conclude that advertising preprint supplements are not a component part of the newspapers in which they appear and are not exempt from use tax as newspapers under § 84-1904 (f). The judgment of the trial court on this issue is reversed.
II
SALES TAX
K-Mart collected as sales tax from consumers the amount in question which was in excess of the tax authorized by Ark. Stat. Ann. § 84-1903 (Repl. 1980). This statute levies a 3% sales tax on the gross proceeds derived from all sales to any person.
Appellant relies on Cook v. Sears Roebuck & Co., 212 Ark. 308, 206 S.W. 2d 20 (1947). Sears collected sales tax in the amount provided by statute but refused to remit to the State any of the taxes so collected. This Court held that to allow Sears to retain money collected as a sales tax would be to completely disregard the doctrine against unjust enrichment. However, that case did not reach the issue of whether the system of collecting the tax was authorized by statute which is the issue we address in this case.
Ark. Stat. Ann. § 84-1908 (Repl. 1980) places on the seller the responsibility for collecting this tax from the purchaser and authorizes appellant to set up by regulation a bracket system of collecting the tax due. Pursuant to this statute appellant promulgated Art. 9 of the Gross Receipts Tax Regulations:
The tax in all instances is to be collected by the retailer, except as to the sale of new and used motor vehicles, etc. (See automobiles).
The amount of tax to be collected on each sale is 3% of the gross proceeds thereof, but for the convenience of the seller in collecting the tax, the following brackets are to be followed:
1 cent to 14 cents inclusive — no tax
15 cents to 44 cents inclusive — 1 cent
45 cents to 74 cents inclusive — 2 cents
75 cents to $1.14 inclusive — 3 cents
Scales accordingly.
Use of the above bracket system does not relieve the seller from the duty and' liability to remit an amount equal to 3% of the gross receipts derived from all sales during the taxable period.
Collection of this tax in accordance with the above regulation resulted in the overcollection of the sum at issue. The trial court found that the consumers who paid the tax cannot be identified and a refund of the overcollection is not possible.
Ark. Stat. Ann. § 84-1906 (Repl. 1980) provides for the computation and remittitur of the tax to the State:
The tax shall be computed by multiplying the tax rate times the amount of the total combined gross receipts or gross proceeds derived from all taxable sales during the preceding month, without regard to the amount that may be allocated to gross receipts tax on the taxpayer’s books of account. Such taxpayer shall compute and remit to the Commissioner the required tax due for the preceding calendar month, the remittance or remittances of the tax to accompany the returns herein required. . . .
Ark. Stat. Ann. § 84-1907 (Repl. 1980) requires the keeping of adequate records to substantiate and prove the accuracy of such returns:
It shall be the duty of every taxpayer required to make a return and pay any tax under this act [§§ 84-1901 — 84-1904, 84-1906 — 84-1919] to keep and preserve suitable records of the gross receipts or gross proceeds of sales taxable and nontaxable under this act, including such books of account and such analyses of sales as may be necessary to determine the amount of the tax due hereunder and all invoices, credit memoranda, refund slips, and other records of goods, wares, merchandise, and other subjects of taxation under this act as will substantiate and prove the accuracy of such returns. . . .
The tax levied is 3% of the gross proceeds and it is clear from reading these statutes that the tax payable is to be computed by multiplying the tax levied times the combined gross proceeds derived from all taxable sales during the preceding month. This amount is required to be remitted to the State monthly and records are to be duly kept to prove the accuracy of such remittitur. Appellee has followed the statutes explicitly in computing and remitting the tax on its sales. The judgment of the trial court on this issue is affirmed. | [
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Paul B. Benham, III, Special Chief Justice.
In 1980, Appellant was given permission to seek postconviction relief in the trial court under Criminal Procedure Rule 37 on the basis of allegations of ineffective assistance of counsel at his bifurcated trial in which he was convicted of capital felony murder in connection with a robbery and sentenced to death. Neal v. State, 270 Ark. 442, 605 S.W. 2d 421 (1980). In his petition for relief under Rule 37, Appellant requested the appointment of counsel to assist him. The trial court appointed counsel who had not represented Appellant either at the trial or during the ensuing appeals. After an evidentiary hearing, the trial court denied relief and Appellant appeals, asserting that the trial court erred in refusing to grant a continuance of the Rule 37 hearing and in concluding Appellant had not been denied the effective assistance of counsel during the conviction and penalty phases of his trial.
Because we have only found error with regard to the sentencing phase of Appellant’s trial, we are affirming Appellant’s conviction but modifying the sentence to be life imprisonment without parole unless the Attorney General elects to request a remand for a new trial.
In arriving at our decision, we were impressed by the similarity between the facts involved in this appeal and those facts present in Giles v. State, 261 Ark. 413, 549 S.W. 2d 479, cert. denied 434 U.S. 894 (1977). The closeness of the factual similarity persuades us that the results should also be similar. Consequently, we have rejected Appellant’s arguments that we should reverse the trial court and either vacate Appellant’s conviction or remand this case for a new hearing under Rule 37.
Appellant’s appeals in 1975 (259 Ark. 27,531 S.W. 2d 17) and in 1977 (261 Ark. 336, 548 S.W. 2d 135, cert. denied 434 U.S. 878) questioned the sufficiency of the evidence to support findings that Appellant’s mental capacity was not diminished to the point of insanity and that Appellant’s diminished mental capacity was not a mitigating circumstance. In each appeal, this court concluded that the evidence was sufficient to support such findings. This appeal, however, does not question the sufficiency of the evidence, but raises for the first time the question of the sufficiency of the assistance provided by Appellant’s trial counsel.
Appellant’s arguments that trial counsel failed to provide him adequate assistance make it necessary for us to focus separately on the conviction and penalty phases of the trial. Appellant’s arguments can be summarized as follows:
1. That the trial court erred in failing to continue the Rule 37 hearing in order for Appellant’s chosen counsel to be present;
2. That the trial court erroneously applied the “farce and mockery” test rather than the test of “customary skills and abilities of a reasonably competent attorney,” when determining the adequacy of trial counsel’s assistance;
3. That the trial court erroneously concluded that trial counsel adequately assisted Appellant during the conviction phase since trial counsel failed to raise the defense of diminished mental capacity, failed to present sufficient evidence of insanity, and failed to object to the introduction of Appellant’s confession; and
4. That the trial court erroneously concluded trial counsel adequately assisted Appellant in the sentencing phase, since trial counsel failed to introduce evidence or to argue about Appellant’s diminished mental capacity as a mitigating circumstance.
Appellant has not persuaded us that the trial court erred in denying postconviction relief with regard to the conviction phase. The arguments on this point are essentially that trial counsel failed to do something, but Appellant has not shown a different result would have followed if trial counsel had acted as Appellant now urges. Appellant’s confession was found to have been voluntarily made (Neal, 259 Ark. at 36,231 S.W. 2d at 22) so that any objection to its introduction questioning its validity would have been futile. At the trial, expert testimony established that Appellant was “without psychosis” but Appellant has not shown that any contrary evidence was available. Other witnesses testified that Appellant’s mental capacity was diminished but Appellant has not shown that additional testimony would have been anything other than cumulative. As in Cason v. State, 271 Ark. 803, 610 S.W. 2d 891 (1981), we think it futile to order a new trial without any showing that facts favorable to Appellant could be developed.
Appellant has also asserted error in the trial court’s failure to continue the Rule 37 hearing to permit Appellant’s chosen counsel to appear. The record reflects Appellant requested court-appointed counsel and the trial court complied with this request. A colloquy between the trial court and appointed counsel, prior to the Rule 37 hearing, reveals that a law firm located outside of Arkansas contacted the trial court and appointed counsel purporting to represent Appellant. The same firm had represented Appellant in his petition for a Rule 37 hearing, in which court-appointed counsel had been requested, but it had not appeared as Appellant’s attorney of record in the proceedings before the trial court. After appointed counsel indicated that witnesses were present to testify, the trial court refused to continue the Rule 37 hearing. Because of our decision to reduce Appellant’s sentence, we cannot say that Appellant has been prejudiced by the trial court’s action. For the same reason, we feel a new Rule 37 hearing would be futile.
Appellant has also argued the trial court erred in concluding that trial counsel adequately assisted him in the sentencing phase of the trial. We agree. During the guilt phase, evidence as to Appellant’s diminished mental capacity was introduced. That fact has different significance in the determination of Appellant’s guilt and in the imposition of a sentence once guilt has been determined. Because Appellant’s diminished mental capacity did not render him insane does not mean that Appellant has sufficient mental capacity to be able to conform his conduct to the requirements of law. This court recognized the validity of that distinction in Giles and it is equally valid here.
While the jury could have considered the evidence of diminished mental capacity in determining whether mitigating circumstances existed (Neal, 259 Ark. at 35, 531 S.W. 2d at 22), trial counsel did little to impress the jury with the significance of this evidence as mitigating against a sentence of death. The record reflects trial counsel’s attempts at introducing during the sentencing phase additional evidence of Appellant’s diminished mental capacity, but these efforts were abandoned without any real success. Also reflected is the existence of expert testimony that Appellant could have been influenced by others to commit the criminal acts with which he was charged, but this testimony was never introduced. Closing statements of trial counsel were brief and, more importantly, failed to call the jury’s attention to the significance of Appellant’s diminished mental capacity.
Regardless of whether the “farce or mockery” test or the “reasonable competence” test is applied, we have no alternative to concluding that Appellant was not adequately assisted by counsel during the sentencing phase and that the trial court erred in concluding otherwise.
We may not speculate about what a jury might have done if it had considered different combinations of aggravating and mitigating circumstances. Williams v. State, 274 Ark. 9, 621 S.W. 2d 686 (1981). Having found error in the sentencing phase of the trial, we shall follow the course charted in Giles and Williams and direct that Appellant’s sentence be reduced to life imprisonment without parole unless the Attorney General timely requests a remand for a new trial.
Adkisson, C.J., disqualified. | [
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Robert H. Dudley, Justice.
Malvern Brick and Tile Company, an Arkansas corporation, filed suit against petitioner, Wisconsin Brick and Block Corporation, in Hot Spring County alleging breach of contract. Wisconsin Brick had been ordering brick from Malvern Brick for a twenty-year period and on this occasion either called or mailed in the order. The bricks were to be sent “F.O.B. plant, car” which meant that Malvern Brick completed performance of the contract when it loaded the bricks on a railroad car at its plant. When the bricks arrived at their destination Wisconsin Brick would not accept them because they were damaged. After Malvern Brick filed suit, Wisconsin Brick’s attorney made a special appearance to deny personal jurisdiction. The Hot Spring circuit judge, respondent here, granted Wisconsin Brick’s motion to dismiss. Malvern Brick then filed a motion for rehearing and, upon rehearing, the motion to quash service was denied. Wisconsin Brick then filed a petition for a writ of prohibition to prevent the circuit court from hearing the suit, alleging lack of personal jurisdiction.
Prohibition will not lie unless the trial court is clearly without jurisdiction or has clearly acted without authority and the petitioner is clearly entitled to such relief. Karraz v. Taylor, 259 Ark. 699, 535 S.W. 2d 840 (1976). The purpose of the writ is to prevent a court from exercising a power not authorized by law when there is no other adequate remedy available. Streett v. Roberts, 258 Ark. 839, 529 S.W. 2d 343 (1975). It is never issued to prohibit an inferior court from erroneously exercising its jurisdiction but only where the inferior tribunal is wholly without jurisdiction, or is proposing or threatening to act in excess of its jurisdiction, Richards v. Maner, Judge, 219 Ark. 112, 240 S.W. 2d 6 (1951).
The personal jurisdiction of this cause of action turns upon whether the activities of Wisconsin Brick were sufficient to satisfy the “minimum contacts” test and whether these activities came within the Arkansas long-arm statute. Ark. Stat. Ann. § 27-2502 (C) (1) (a) (Repl. 1979) states that:
A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a (cause of action) (claim for relief) arising from the person’s
(a) transacting any business in this State; . . .
The purpose of this section of the statute is to permit courts to exercise the maximum personal jurisdiction allowable by due process, and the statute should be liberally construed. In Hawes Firearm Co. v. Roberts, 263 Ark. 510, 565 S.W. 2d 620 (1978), this court notecl:
A non-resident defendant filing a motion to dismiss or quash [on grounds that there are not sufficient contacts within the state] has the burden of going forward and offering proof to sustain the allegations of the motion. If the motion is denied, this does not mean that the plaintiff is relieved from establishing jurisdiction; it merely means that at this point in the proceedings a prima facie case of jurisdiction sufficient to take the cause to trial has been made.
Whether the “minimum contacts” test has been satisfied is a question of fact. In cases where jurisdiction depends upon the establishment of facts, the issue of jurisdiction must be decided by the trial court, and even if that decision should be wrong, we correct that error on appeal and not on prohibition. Robinson v. Means, Judge, 192 Ark. 816, 95 S.W. 2d 98 (1936).
Writ denied. | [
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Darrell Hickman, Justice.
This is the second appeal of this case. We reversed Robinson’s conviction and ordered a new trial in Robinson v. State, 269 Ark. 90, 598 S.W. 2d 421 (1980) because of erroneous jury instructions. Robinson shot and killed his girl friend and her mother in a shopping center in Pine Bluff, Arkansas. He was convicted a second time and sentenced to life imprisonment without parole. The facts of the case are contained in our first opinion.
On this appeal there is only one significant issue and that relates to the trial court’s refusal to rule that a psychological examiner was an expert witness on insanity. When the judge so ruled, counsel for Robinson requested a continuance which was denied, and later requested a mistrial, which was also denied.
All three rulings were within the discretion of the trial court and we cannot find a manifest abuse of that discretion. The judgment is affirmed.
Robinson’s defense was not guilty by reason of insanity. Several expert witnesses testified for the State. Robinson called as one of his witnesses a psychologist who had given Robinson a battery of psychological tests. After the witness answered that he held a master’s degree in clinical psychology and had practiced for thirteen years it was requested that the witness be ruled an expert. The State sought to question the witness further and it was elicited that the witness was merely a psychological examiner, not a clinical psychologist or consulting psychologist. The witness conceded that his findings had to be supervised by a psychiatrist or consulting psychologist and that in this case such a supervisor was not present when he tested or consulted with Robinson. He could offer no report approved by such a supervisor. The defense argued that the witness had testified in several trials and the question of his expertise had never been raised. But the judge correctly pointed out that that argument was simply makeweight. There was no other evidence of the extent of the experience or ability of the witness.
An extensive hearing, both in chambers and in front of the jury, was held. It consisted mostly of argument. Finally the judge ruled that the witness could not offer an opinion on the mental state of Robinson, but would be limited to testifying as a psychological examiner and “layman.”
Robinson has two main objections to the judge’s ruling. First, he argues that the witness was qualified as an expert and, second, that the defense was surprised because this same witness had been ruled an expert at the first trial and, therefore, the defense needed time to produce another witness.
It is always discretionary with the trial court whether a person is qualified as an expert in a particular field. That discretionary decision will only be overturned if we find it manifestly wrong. Parker v. State, 268 Ark. 441, 597 S.W. 2d 586 (1980); Smith v. State, 258 Ark. 601, 528 S.W. 2d 389 (1975), cert. denied 425 U.S. 912 (1976). Based on the information given to the judge and the arguments of counsel, the judge concluded that the psychologist was not qualified to offer an opinion as to insanity or mental illness. He sustained objections to questions that touched on that area. He ordered stricken such answers as the defendant “was suffering from a mental illness,” and that one of the tests “suggested that [Robinson] had a strong drive to escape present reality;” another test suggested that [Robinson] was extremely emotionally unstable. The psychologist was allowed to describe the tests Robinson was given and the results of those tests, but his findings were essentially excluded. It is argued that Ark. Stat. Ann. § 28-1001, Rule 702 (Repl. 1979) controls the situation and that the court had to permit the testimony. That rule reads:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, or training, or education, may testify thereto in the form of an opinion or otherwise.
Every opinion offered must have a basis, whether expert or lay; that is, a witness must be qualified by education or circumstance to have an opinion that will carry some weight and be of assistance to the fact finder. Whether one is qualified is a question of law to be decided by the trial judge. Gibson v. Heiman, 261 Ark. 236, 547 S.W. 2d 111 (1977).
Neither party argued to the court below, nor to us on appeal, the import of Ark. Stat. Ann. §§ 72-1501 — 72-1518 (Repl. 1979) which define the role, qualifications and responsibilities of various types of psychologists. We can find nothing in these statutes which clearly says that a psychological examiner is qualified to offer his own opinion on mental illness or insanity unless he is supervised.
The fact that the witness was allowed to testify at the first trial without objection is irrelevant to whether he was actually qualified as an expert. This was a separate trial. Both parties were starting anew bound only by any limitations of law laid down in the first case. There is no indication that the issue was raised in the first trial. See Robinson v. State, supra. The issue is whether the court ruled properly during this trial.
Counsel for Robinson claimed surprise by the turn of events and made a motion for a continuance which was denied. Again, the question is whether the trial court abused its discretion. Parker v. State, supra. The preparation and presentation of a case for trial promises few gratuities. The witness never appeared to have been qualified to testify as the defense suggests, and there were no good reasons shown why the defense should not have known that the witness held limited credentials in the field of mental illness. The court did permit the witness to testify within the area of his expertise and we find no manifest abuse of discretion that resulted in prejudice.
It is argued that photographs admitted in both of Robinson’s trials inflamed and prejudiced the jury. We held in Robinson v. State, supra, that the photographs were admissible and that ruling became the law of the case. Gibson v. Gibson, 266 Ark. 622, 589 S.W. 2d 1 (1979); Wilson v. Rodgers, 256 Ark. 276, 507 S.W. 2d 508 (1974).
We have examined the record as we are required to do in a case of imprisonment for life without parole, and finding no prejudicial error, affirm the conviction.
Affirmed. | [
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George Rose Smith, Justice.
This is an action by the appellee for personal injuries sustained in a collision on Highway 11. The plaintiff was driving north when she met the defendants’ truck and trailer, traveling south at about 40 miles an hour and transporting a house 24 feet 5 inches wide. The plaintiff’s car was struck by the oncoming house at a point on the plaintiff’s side of the road, the roadway being only 22 feet 6 inches wide. The jury awarded the plaintiff $20,000. We need not detail the testimony, which was amply sufficient to support the verdict.
The complaint was based only on various allegations of negligence. Midway in the trial, however, the court permitted the plaintiff to rely also on a recent Highway Commission regulation applicable to persons transporting houses on the highway under a permit. The regulation provides that “the defendant [house mover] shall assume absolute liability and pay for any and all damages to persons or private property resulting from the movement of such oversized house.” The court announced that the regulation would be submitted to the jury, as in fact it was, in the format of AMI 903. AMI Civil 2d (1974). The defendants objected on the ground that the plaintiff was being permitted to bring in a new theory either of strict liability or of a duty on the part of the defendants to exercise the highest possible degree of care.
The objection should have been sustained. Civil Procedure Rule 15 (b), copied from the corresponding Federal Rule, provides that amendments of the pleadings may be allowed during the trial within the court’s discretion. One test of prejudice is whether the defendant has a fair opportunity to defend after the amendment. 3 Moore’s Federal Practice § 15.13 (1980). Here the prejudicial effect of the plaintiff’s change in the theory of her case can hardly be doubted. The defendants came to court expecting to have to rebut assertions of mere negligence and were confronted instead with a regulation that told the jury in effect that the defendants had assumed absolute liability and had agreed to pay for all damages to the plaintiff’s person or property resulting from the movement of the house. The defendants’ preparations for trial would be materially different in the two situations; so the change of theory during the trial was unfair.
The appellee makes no attempt to answer the appellants’ argument on the merits, insisting instead that the court’s instruction to the jury was not abstracted. The abstract does show, however, that the court stated its intention to submit the regulation within AMI 903, and the regulation itself is quoted once in the appellants’ abstract and twice in their brief. We have had no difficulty in understanding the facts and the argument without recourse to the record.
The appellants also argue that the regulation is unconstitutional as going beyond the regulatory authority delegated to the Highway Commission, but the only objection made below was that the instruction imposed a higher standard than that of ordinary care. Constitutional questions cannot be raised for the first time on appeal. Wilson v. Wilson, 270 Ark. 485, 606 S.W. 2d 56 (1980).
Reversed and remanded for a new trial. | [
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Frank Holt, Justice.
A jury found appellant guilty of capital felony murder of two individuals in the same criminal episode (Ark. Stat. Ann. § 41-1501 [Repl. 1977]) and assessed his punishment at death by electrocution. We find merit in appellant’s first contention for reversal that the trial court erred in denying him access to the staff reports and records made by the Southeast Arkansas Mental Health Center and the State Hospital in conjunction with court ordered psychiatric and psychological examinations.
On August 15, 1979, through court appointed counsel, the court granted appellant’s request that he be examined at the local S.A.M.H.C. That agency’s report, addressed to the court, indicated, inter alia, that appellant suffered from borderline retardation, and the examiners recommended to the court that he be sent to the State Hospital for further testing and evaluation. A one page letter dated January 3, 1980, from the State Hospital, signed by an examining psychiatrist, was filed with the court diagnosing the appellant as being without psychosis, although suffering from alcohol addiction and severe antisocial personality. The letter stated that the staff findings were derived from historical data, physical and neurological examinations by the examining physicians, laboratory and other physical studies, psychological assessment by staff psychologists, and psychiatric history and direct psychiatric examination by the examining psychiatirst. The letter report concluded by stating that “[cjopies of supporting documents may be obtained as provided by law upon authorization of the court of jurisdiction and payment of copying costs.” Appellant’s counsel agrees that he received a copy of this letter report. However, he disputes he ever received a copy of the S.A.M.H.C. reports.
The appellant petitioned the court on March 5, 1980, for release of the psychiatric records, stating “that it is necessary for defendant’s defense that he be provided with all lay and professional staff reports compiled in relation to examinations of defendant at the State Mental Hospital, Rogers Hall and the Southeast Arkansas Mental Health Center.” The trial judge found this information was outside the scope of discovery and denied the petition.
Where there is a court ordered mental examination of a defendant, as here, Ark. Stat. Ann. § 41-605 (8) (Repl. 1977) provides:
There shall be made available to the examiner and counsel, for inspection and copying, all existing medical records in the custody of public agencies notwithstanding the provisions of any statute enacted prior to the effective date [Jan. 1, 1976] of the code. (Italics supplied.)
The S.A.M.H.C. and the State Hospital are public agencies and their records pertaining to the examination of the appellant fall within the scope of this statute. In Westbrook v. State, 265 Ark. 736, 580 S.W. 2d 702 (1979), the appellant filed a motion to obtain the full records of the State Hospital relating to two prior commitments of the appellant. The motion was granted but the appellant never received the records. In holding the trial court abused its discretion in denying appellant’s motion for a continuance until the records were received, we said:
Due to the nature of the defense we feel it was necessary that appellant have these records, if they exist, in order to fully prepare his defense.... It may be that something in these records would have enabled appellant to furnish stronger proof on his behalf.
We further stated he was entitled to these records as a matter of law, citing § 41-605 (8), supra.
Here, it could be that an inspection and copying of these records and reports would have better enabled the appellant to prepare his defense, or interpose the defense of insanity, or present at trial crucial evidence bearing on mitigation, such as possible mental retardation, during the sentencing phase of the trial. We hold it was prejudicial error to deny him access to these agencies’ reports.
Appellant next contends the court erred in denying his petition for an independent psychological testing and evaluation by a named private psychologist at state expense. The court was correct. Westbrook v. State, supra; Andrews v. State, 265 Ark. 390, 578 S.W. 2d 585 (1979); and Maxwell v. State, 259 Ark. 86, 531 S.W. 2d 468 (1976).
Appellant asserts the court erred in limiting cross-examination of two police officers on relevant issues during the Denno hearing. The court refused to allow appellant to inquire into the length of time appellant spent in the police car from the time he left the county jail with the officers until they arrived at the crime scene. Since the deputy prosecutor acknowledged the span of time involved and this information was amply elicited through the testimony of various witnesses who established the times and locations at which the appellant made various statements during the afternoon, appellant has not demonstrated he was prejudiced.
Appellant also tried to cross-examine an officer as to the procedures used by the county sheriff’s office when an indigent defendant requests counsel. The court correctly sustained the state’s objection since the procedure was beyond the knowledge of the witness and, further, as the court noted, the sheriff’s office has nothing to do with securing and appointing counsel for indigent defendants. Also, appellant’s counsel indicated he was abandoning this “line of questioning.”
The appellant further attempted to elicit information from an officer as to the general policy of the sheriff’s department in taking statements. The state’s objection to the question was correctly sustained. The court ruled that the general policy of the sheriff’s office, as to whether a statement be written or oral, is irrelevant to the determination of whether the appellant’s statemens were freely and voluntarily made. The appellant has failed to show how the trial court’s ruling was a manifest abuse of discretion.
The appellant next asserts the trial court erred in refusing to suppress certain staements made by him to police officers. The state has the burden of proving by a preponderance of the evidence the voluntariness of a custodial statement, and on appeal we make an independent determination based on the totality of circumstances surrounding the statement. In doing so, we do not reverse a trial court’s finding unless clearly against the preponderance of the evidence. Degler v. State, 257 Ark. 388, 517 S.W. 2d 515 (1974).
The first incriminating statement made by appellant was when he walked into the local county jail and stated he wanted “to turn himself in. I think I just killed my girl friend.” This statement was spontaneous. Therefore, it was properly admitted. Lacy v. State, 271 Ark. 334, 609 S.W. 2d 13 (1980); and Little v. State, 261 Ark. 859, 554 S.W. 2d 312 (1977). Here, after appellant made that statement, he was escorted to a waiting room in the jail. A detective was called in who asked the appellant several questions. The statements made to this detective were suppressed, as the detective could not say for certain that he had advised appellant of his Miranda rights at this time. The detective determined that the homicide probably occurred within the city limits and called the police department. Two officers came to the jail. At the Denno hearing both testified the appellant was read his Miranda rights and he indicated he understood them. There was further testimony that the appellant did not appear intoxicated when he arrived at the county jail. He told these officers he had killed his girl friend and would take them to the scene of the crime. One officer read the appellant his rights again when they entered the police car. Two officers understood that the murder occurred at appellant’s girl friend’s house, but when they arrived there he became upset and hysterical and told them it happened on the outskirts of the city. Appellant then directed the officers to a location 4% miles from town where the bodies of the two victims, appellant’s girl friend and a cab driver, were found, as well as the cab in which the cab driver, as directed, had transported them. Briefly, the appellant said he had killed the cab driver when he refused to leave the threatened woman, whom he also killed because of his jealousy about her attention to another lover.
At approximately 7:30 p.m. or about four hours after his “walk-in” or spontaneous statement at the jail, the appellant signed a written waiver of his Miranda rights. The officers testified that the appellant indicated, as before, he understood his rights and the meaning of the waiver and freely and voluntarily reiterated his complicity in the alleged murders. Neither did he request an attorney. However, appellant’s version ws that he was incapable of making a voluntary statement because he had been drinking most of the day and was in a state of hysteria following the alleged offenses. Further, he asked for and was denied an attorney. It was for the trial court to resolve the credibility of the witnesses and any conflict in their testimony. We cannot say that the trial court’s finding of voluntariness is clearly against the preponderance of the evidence. Degler v. State, supra; Giles v. State, 261 Ark. 413, 549 S.W. 2d 479 (1977); Wright v. State, 267 Ark. 264, 590 S.W. 2d 15 (1979); and Harvey v. State, 272 Ark. 19, 611 S.W. 2d 762 (1981).
The appellant also argues that certain statements made by him on July 26, 1979, or ten days later were involuntarily made and the court erred in finding otherwise. These statements, which were somewhat repetitious or duplicative of his previous statements, were not introduced at trial. We fail to perceive nor has appellant demonstrated how he was prejudiced by the non-use of these statements.
The appellant next contends he was denied his right to a speedy trial. Appellant was arrested on July 16, 1979, and was tried on February 5,1981. Therefore, he argues that four terms of court had elapsed between his arrest and trial or a total of 18 months with only five months of this delay fairly attributable to appellant. The term in which a defendant is charged does not count in determining the full terms of court. Matthews v. State, 268 Ark. 484, 598 S.W. 2d 58 (1980). In Kemp v. State, 270 Ark. 835, 606 S.W. 2d 573 (1980), we held there are two terms of court for any one year period in the Jefferson County Circuit Court, one that begins in March and one that begins in October. The counting of terms for the purposes of Rule 28 here begins with the October, 1979, term. The second term begins in March, 1980, and ends in October, 1980. The third term begins in October, 1980, and ends in March, 1981. The appellant was tried on February 5, 1981, which is well within the three full terms required under Rule 28. The trial court was correct in denying appellant’s motion to dismiss for lack of a speedy trial.
Neither do we agree with appellant that the trial court erred in failing to grant him a plea and arraignment prior to trial. In an amended motion to suppress, dated July 9, 1980, he acknowledged he was arraigned on August 6,1979, which is also the date that he was appointed counsel. Further, at appellant’s request, he was formally arraigned at trial. We have said that the mere failure to arraign is not reversible error. Hayden v. State, 55 Ark. 342, 18 S.W. 239 (1892); and Ellingburg v. State, 254 Ark. 199, 492 S.W. 2d 904 (1973).
Appellant’s final argument is that the trial court erred in limiting the testimony of Kathie Anderson, during the guilt phase of the trial, about appellant’s general drinking habits. The court sustained the state’s objection unless the testimony was related to the date of the murders. A brief proffer of proof revealed that Mrs. Anderson had observed appellant drinking heavily on two specific occasions, the latest being two or three days before the alleged offenses. The appellant has not demonstrated a manifest abuse of discretion by the court.
Pursuant to Supreme Court Rule 11 (f), Ark. Stat. Ann. Vol. 3A (Repl. 1977), we have reviewed the transcript for rulings adverse to appellant and find no other error prejudicial to his rights.
Reversed and remanded. | [
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Frank Holt, Justice.
This class action involves an appeal from the chancellor’s decision granting appellees’ motion for a summary judgment. The chancellor held that the appellee City of Little Rock was under the responsibility to furnish services to the annexed area. Therefore, the City properly collected franchise taxes from appellants in the area during the pendency of the appeal to the Supreme Court from a circuit court order approving the annexation.
In 1973 and again in 1975, the City of Little Rock attempted to annex 55 square miles of contiguous lands. On both occasions the annexations were declared void. Saunders v. City of Little Rock, 257 Ark. 195, 515 S.W. 2d 633 (1974); and Saunders v. City of Little Rock, 262 Ark. 256, 556 S.W. 2d 874 (1977). During the pendency of each appeal from the circuit court’s final order holding each annexation valid, the City of Little Rock collected franchise taxes from the residents of the annexed area. Appellants contend these franchise taxes were an illegal exaction and should be refunded. The appellees, the City and Board of Directors, however, respond that their action was lawful since it furnished services to the residents of the annexed area after the circuit court’s final order confirming the annexation and during the appeal to this court.
Ark. Stat. Ann. § 19-307.2 (Repl. 1980) provides in pertinent part: “The annexation shall be effective ... [if, as here, contested in circuit court] on the date the judgment of said Court becomes final.” Appellants argue that the judgment of the circuit court, however, did not become final until the issue was finally resolved on appeal to this court. Even so, as the chancellor observed, Ark. Stat. Ann. § 27-2119 (Repl. 1962), in effect during these appeals, provides:
An appeal . . . shall not stay proceedings on the judgment or order, unless a supersedeas is issued.
To the same effect are Rule 8, Rules of Appellate Procedure, and Rule 62, Rules of Civil Procedure, Ark. Stat. Ann. Vol. 3A. Consequently, we cannot agree with appellant’s argument that a supersedeas or stay was unnecessary pending a final judgment on appeal. Veteran’s Taxicab Company v. City of Fort Smith, 213 Ark. 687, 212 S.W. 2d 341 (1948). Here, the circuit court’s order was never stayed nor superseded in any manner. In the circumstances, we agree with the chancellor that the appellee City had the authority and responsibility to furnish services to the annexed area and collect the questioned franchise taxes, during the pendency of the appeal, in accordance with the circuit court order approving the annexation.
Affirmed.
Purtle, J., not participating. | [
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Per Curiam.
Petitioners request clarification of our per curiam order relating to the Code of Judicial Conduct as set out in 255 Ark. 1075 which relates to solicitation of funds on behalf of judicial candidates. In the order no definite time limit was set within which a committee on behalf of a judicial candidate could solicit and accept campaign contributions.
We are of the opinion that definite time limits are required by the Code of Judicial Conduct and are necessary in order to provide assurance of compliance with the per curiam order and the code. Therefore, we hold that campaign funds may be solicited and accepted on behalf of a judicial candidate beginning 180 days prior to the first election in which he is a candidate. Should funds be received prior to the 180-day limitation they should be returned to the contributor. If funds are received personally by a judicial candidate, he should promptly turn them over to his campaign committee. This order does not change the per curiam in 255 Ark. 1075 in any other manner.
Hickman, J., not participating. | [
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Richard B. Adkisson, Chief Justice.
Appellant, Robert Killman, was convicted of second-degree battery. The jury fixed his punishment at three years imprisonment but recommended that two years be suspended. The court accepted the jury’s recommendation and entered judgment accordingly. We affirm.
The evidence at trial showed that the incident occurred in Walnut Ridge at the home of William McCrory, a mutual friend of the victim and appellant. The victim arrived at the home and became angry because his girlfriend had driven appellant’s car to go get some beer. After an exchange of words, appellant pulled a gun and shot the victim twice. At trial, appellant relied on self-defense as justification for the shooting.
Appellant argues for reversal that he should have been allowed to elicit opinion testimony from a psychiatrist, Dr. Daniel R. Frances, to the effect that appellant was not a violent person since this was relevant to both the crime with which he was charged and his defense, citing Finnie v. State, 267 Ark. 638, 593 S.W. 2d 32 (1980). Appellant relies upon Uniform Rules of Evidence, Ark. Stat. Arm. § 28-1001 (Repl. 1979):
Rule 404. Character evidence not admissible to prove conduct, exceptions — Other crimes. — (a) Character Evidence Generally. Evidence of a person’s character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:
(1) Character of accused. Evidence of a pertinent trait of his character offered by an accused, or by the prosecution to rebut the same; . . .
Rule 405. Methods of proving character. — (a) Reputation or Opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.
Under the above rules it is clear that a defendant can introduce into evidence pertinent traits of character. However, Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001 (Repl. 1979), Rule 103 states:
(a) Error may not be predicated upon a ruling which . . . excludes evidence unless a substantial right of the party is affected, and
(2) [T]he substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.
Here, the record reflects that at trial appellant attempted to introduce Dr. Frances’s testimony only for the purpose of mitigation of punishment and not to show a character trait of nonviolence. Therefore, the substance of the evidence which appellant attempted to introduce was not sufficiently made known to the trial court and was not apparent from the context of the questions appellant asked Dr. Frances. Before an issue is preserved for review on appeal, it must first be raised in the trial court.
Appellant next argues that Dr. Frances should have been allowed to testify, as a mitigating circumstance for the j ury to consider, that appellant was nota violent person and not a danger to the community and, therefore, was not in need of rehabilitation. This Court addressed this issue in Fields v. State, 255 Ark. 540, 502 S.W. 2d 480 (1973) and held that “The effect upon an individual of being sent to the penitentiary has nothing to do with one’s guilt or innocence on the charge being tried... [and] such testimony is entirely and completely irrelevant.”
The Arkansas Criminal Code, Article 3, Ark. Stat. Ann. §§41-801 — 1351 (Repl. 1977) provides for the disposition of offenders. Section 41-802 provides that “[T]he jury shall fix punishment as authorized by this Article.” (Emphasis added) Section 41-803 provides “No defendant convicted of an offense shall be sentenced otherwise than in accordance with this Article.” (Emphasis added)
Section 41-1201 sets out the criteria for the court in making a determination as to suspension or probation. This section sets out 17 separate matters for consideration to guide the court in determining whether or not a person should be sent to the penitentiary. Therefore, questions of mitigation are properly presented to the court which has the responsibility of sentencing after the maximum punishment is fixed by the jury. The Commentary to this section outlines various legislative acts the trial court should consider in sentencing and provides:
By suggesting mitigating circumstances to which the defendant can call the court’s attention, the Commission hopes to encourage the use of suspension or probation as alternatives to imprisonment.
It is clearly the intent of the Arkansas Criminal Code that mitigating circumstances be left for the consideration of the sentencing court.
Finally, appellant argues that the jury’s verdict was not supported by the weight of the evidence because the State’s evidence was not sufficient to overcome appellant’s assertion of self-defense. This argument is without merit. The State must prove each element of the charge beyond a reasonable doubt, which includes negating the defense of justification once it is put in issue. See Peals v. State, 266 Ark. 410, 584 S.W. 2d 1 (1979); Ark. Stat. Ann. § 41-115 (5) (c) (Repl. 1977). However, once the jury decides that the defendant was not justified in his actions, the State’s burden is automatically met. In this case the jury, by finding appellant guilty, also found that the State had proved its case beyond a reasonable doubt, including the negation of. appellant’s defense.
If the jury’s verdict is appealed, this Court looks to whether there is substantial evidence to support the verdict. Jones v. State, 269 Ark. 119, 598 S.W. 2d 748 (1980). After considering the testimony of the victim, two eyewitnesses to the shooting, and a police officer who took a statement from appellant, we conclude there is substantial evidence in this case to support the jury’s verdict.
Affirmed.
Hickman and Purtle, JJ., concur. | [
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Richard B. Adkisson, Chief Justice.
On March 3,1981, John Marlar, Ouachita County Judge, resigned from office. The quorum court, acting pursuant to Act 392 of 1981, appointed James Harvey Rumph interim county judge and called a special election to permanently fill the vacancy. This appeal is from a circuit court judgment declaring Act 392 unconstitutional and enjoining appellant from holding a special election. We affirm.
Amendment 55 of the Arkansas Constitution provides that “ ... the Quorum Court shall have the power to ... fill vacancies in elective county offices. ...” Act 392 of 1981 [Ark. Stat. Ann. § 17-3812 (Supp. 1981)] provides:
SECTION 1. All quorum courts are hereby authorized, in their discretion, to call special elections for the purpose of filling vacancies in the office of county judge.
Arkansas Constitution Amendment 29, generally, provides for the filling of vacancies in elective county offices. Amendment 55 changes this procedure only to the extent that the quorum court is substituted for the governor as the appointive authority. We held in McCraw v. Pate, 254 Ark. 357, 494 S.W. 2d 94 (1973) that under Amendment 29 the alternative of holding a special election to fill a vacancy is not available.
It is clear that Amendment 55, when read in conjunction with Amendment 29, is complete and self executing as to the manner of filling vacancies in county offices and, therefore, Act 392 of 1981 is constitutionally infirm. Judge Rumph was duly and regularly appointed in accordance with Amendment 55 and will serve until his successor is duly elected and qualified under Amendment 29. McCraw, supra.
Affirmed. | [
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Robert H. Dudley, Justice.
The appellant, Charles W. Couch, was charged with capital murder and attempt to commit first-degree murder. Both his plea and his defense at trial were that he was not guilty by reason of mental disease or defect. The uncontradicted proof revealed that on the evening of July 29, 1979, in one criminal episode on East Huntsville Road in Fayetteville, appellant shot and killed his estranged wife, Judy Wright Couch; shot and critically wounded Judy Couch’s cousin, Brenda Lee Jones; and shot and killed Miss Jones’ suitor, Larry Kilpatrick. Immediately afterwards, appellant shot himself in an attempted suicide. The jury found appellant guilty on both charges. He was sentenced to life imprisonment without parole for capital murder and twenty years to be served consecutively for the attempt to commit first-degree murder. We affirm.
The appellant’s first assignment of error involves the instructions to the j ury. In instructing on capital murder the trial judge gave instructions on capital murder, murder in the second degree and manslaughter. A requested instruction on murder in the first degree was refused.
The pertinent sections of the capital murder statute, Ark. Stat. Ann. § 41-1501 (Repl. 1977) provide:
(1) A person commits capital murder if: . . .
(c) with the premeditated and deliberated purpose of causing the death of any person, he causes the death of two (2) or more persons in the course of the same criminal episode . . . [Emphasis supplied.]
The applicable sections of the first-degree murder statute, Ark. Stat. Ann. § 41-1502 (Repl. 1977) provide:
(1) A person commits murder in the first degree if:... (b) with the premeditated and deliberated purpose of causing the death of another person, he causes the death of any person. [Emphasis supplied.]
In the context of the case before us capital murder is premeditatedly and deliberately causing the death of two persons, while first degree murder is premeditatedly and deliberately causing the death of one person.
The questions for the jury were whether appellant killed two people in one criminal episode and whether the shooting was the irrational act of one who was mentally ill to the degree of legal irresponsibility. It is uncontradicted that appellant killed two people in the course of one criminal episode. The issue of consequence for the jury to decide was the culpable mental state. If premeditation and deliberation were found then appellant was guilty of capital murder. If a lesser culpable mental state was found then second-degree or manslaughter findings would have been appropriate. There was no evidence to support the giving of an instruction on first-degree murder. There is no error in the refusal to give an instruction where there is no evidence to support the giving of that instruction. Frederick v. State, 258 Ark; 553, 528 S. W. 2d 362 (1975). Each possible alternative was submitted to the jury. In refusing the requested instruction the trial judge correctly stated:
I’m going to refuse that instruction because the evidence as presented in this case, it would be impossible, in effect, as far as the requirements of the law for the jury to make a finding of first-degree murder; because the evidence is uncontradicted and it has been admitted that the defendant did kill two people. At issue is premeditation and deliberation. Now if they find premeditation and deliberation, then with the fact before them that there were two deaths, they would have to find capital murder. If they do not find premeditation and deliberation they could not as a matter of law find first degree. It would have to be reduced to a lesser degree than first degree.
If there had been even slight evidence that appellant was guilty of murder in the first degree we would reverse and require an instruction on that lesser included offense. Brewer v. State, 271 Ark. 254, 608 S.W. 2d 363 (1980).
This is a case of first impression. A casual reading of the case of Robinson v. State, 269 Ark. 90, 598 S.W. 2d 421 (1980), might erroneously lead one to a different conclusion. In that case the defendant was charged with capital murder for the killing of two people and he pleaded not guilty because of insanity. The trial court refused to instruct on any lesser included offenses. We reversed, holding that there was evidence upon which a jury could make a finding that the defendant acted without premeditation and deliberation and, as a result, was guilty of second-degree murder. The failure to instruct on second-degree murder gave the jury no realistic alternative but to find the requisite culpability or permit the defendant to go free. Such an action clearly enhanced the risk of an unwarranted conviction. That danger does not exist in the present case because the trial judge gave the instructions which would have allowed the jury to find that the appellant acted without premeditation and deliberation. The refusal to give an instruction on first-degree murder did not enhance the risk of an unwarranted conviction. In Robinson, supra, we stated, as obiter dictum, that upon retrial an instruction on first-degree murder ought to be given. However, that was not a point in issue and is not binding.
The appellant contends that the trial court abused its discretion in unduly restricting voir dire. No specific instances of the court restricting voir dire are pointed out. Rather, only conclusory allegations of such restrictions are given. Even when we consider the 861 pages of voir dire in the transcript, there is no objection about undue restriction. Our fundamental rule is that an argument for reversal will not be considered in the absence of an appropriate objection in the trial court. Wicks v. State, 270 Ark. 781, 606 S.W. 2d 366 (1980).
Appellant urges us to adopt the position that death qualified juries are guilt prone and, as a result, he has been denied due process and equal protection guaranteed under the Fifth and Fourteenth Amendments to the Constitution of the United States. We have consistently refused to adopt this position. Miller v. State, 269 Ark. 341, 605 S.W. 2d 430 (1980), cert. denied 450 U.S. 1035, 101 S. Ct. 1750 (1981).
It is asserted by appellant that the trial court erred in admitting into evidence eight photographs. Two of the photographs are close range color pictures of the two victims who were killed. They are not grotesque. They reveal the small wounds and the small amounts of blood which are consistent with both victims having been shot once in the chest with a .22 caliber rifle. The location of the fatal wounds was relevant to the cause of death as well as the intent of appellant. One exhibit was a photograph of the rifle used by appellant. The picture is relevant and not inflammatory. A series of four photographs show the position of the bodies at the scene, with each one of the pictures being taken from a different angle. The location of the bodies is relevant to the course of conduct by the appellant and there is no unfair prejudice in this series of pictures. The final photograph shows the fatal wound to Judy Couch which was not readily apparent in the previous exhibits. Each of these photographs was admitted for a relevant purpose. Relevant evidence will be excluded only if its probative value is substantially outweighed by the danger of unfair prejudice. Gruzen v. State, 267 Ark. 380, 591 S.W. 2d 342 (1979). The question of admissibility of photographs lies largely in the sound discretion of the trial court. Tanner v. State, 259 Ark. 243, 532 S.W. 2d 168 (1976). If their introduction serves a valid purpose we will not reverse unless there is a clear abuse of discretion. Hulsey v. State, 261 Ark. 449, 549 S.W. 2d 73 (1977). The trial court acted within its sound discretion in this case.
Appellant next contends that the court should have given a requested instruction, taken from the language of Ark. Stat. Ann. § 41-612 (Repl. 1977), explaining to the jury that even after a verdict of not guilty by reason of insanity the court would still have three alternatives, the first of which would be to commit the defendant to an appropriate institution if the defendant was found to be so affected by mental disease or defect as to present a risk of danger to himself or to others. The other alternatives were also to be explained, the general effect being to tell the jury that the appellant would not automatically be released if found not guilty by reason of insanity.
Appellant recognizes that we recently addressed this identical argument and approved the trial judge’s refusal to give the proposed instruction. Curry v. State, 271 Ark. 913, 611 S.W. 2d 745 (1981). However, he urges that we overturn Curry. We do have the power to overrule an opinion previously rendered. Gregg v. Road Improvement Dist. No. 2, 169 Ark. 671, 277 S.W. 515 (1925). However, there should be settled rules for the proper administration of justice and we will adhere to our previous decisions unless some injury or injustice will result. Rhea v. State, 104 Ark. 162, 147 S.W. 463 (1912). In Curry, supra, we carefully considered the sharp divisions of authority on this issue and reexamined our previous decision as stated in Campbell v. State, 216 Ark. 878, 228 S.W. 2d 470 (1950). We see no injustice in our decision and adhere to that position.
Appellant also argues that the jury’s finding that he was not insane at the time of the offense was erroneous. Pursuant to Ark. Stat. Ann. § 41-601 (Repl. 1977), he had the burden of proving by a preponderance of the evidence that, at the time of the offenses, he was suffering from a mental disease or defect to the extent he lacked the capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. Campbell v. State, 265 Ark. 77, 576 S.W. 2d 938 (1979). On appeal from a jury verdict rejecting an insanity defense the issue is whether there is any substantial evidence to support the verdict. Gruzen v. State, supra.
There was substantial evidence from which the jury could conclude that appellant could appreciate the criminality of his acts. Appellant was found by the staff at the State Hospital to be without psychosis. The victim who lived testified that just before shooting the appellant stated “You all played me for a ... fool. You didn’t think I’d do it, but I’m getting even now.” Immediately after shooting the appellant said, “Please, God, forgive me.” He directed another person to call an ambulance and the police. He stated that he intended to kill himself and added, “Well, I can’t sit in the pen the rest of my life.” After he had attempted suicide he was discovered in a truck and he said, “I’m hurting and I’m hiding.” After his arrest he had his wits about himself. He understood his rights and did not want to confess. Clearly, there was substantial evidence from which the jury could conclude that appellant did appreciate the criminality of his actions.
Appellant asks us to revise our standard of review in insanity cases as set out in Campbell, supra, and Gruzen, supra. We find no injustice in our standard and decline to change it.
Pursuant to Rule 11 (f) of the Rules of the Supreme Court, Ark. Stat. Ann. Vol. 3A (Repl. 1979), the record of the trial below has been examined and we find no prejudicial error.
Holt and Purtle, JJ., dissent. | [
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Darrell Hickman, Justice.
Habit is defined as “an acquired or developed mode of behavior or function that has become nearly or completely involuntary.” Webster’s Third New International Dictionary (1967). The issue in this case is whether the evidence of behavior offered and rejected by the trial court amounted to habit. We cannot say the trial court was clearly wrong in rejecting the proffered evidence and affirm the judgment.
The case arose over an automobile accident that occurred April 13, 1979, about 7:45 a.m. on Highway 15, approximately 3.8 miles south of Pine Bluff. The appellant testified that he thought the driver of an approaching vehicle, who had veered into appellant’s lane, was going to cross to the appellant’s shoulder. So the appellant swerved into the lefthand lane to avoid an accident. Instead, the other vehicle crossed back into the lefthand lane and the vehicles collided. The driver of the other vehicle, Coy Murray, was killed.
Before trial the appellee , Coy Murray’s widow, filed a motion in limine to prohibit the introduction of testimony that Murray regularly weaved back and forth over the center-line. The appellants argued that Murray delivered newspapers in his vehicle, and, as he was throwing papers, he sometimes crossed the centerline. There was also testimony that Murray was a tobacco chewer whose left arm was cut off below the elbow, and as he sought a chew while driving, his vehicle would weave across the centerline because he needed two hands for such a maneuver, but had only the use of one.
The parties stipulated as to what the proffered testimony would be and only one part approaches what could be considered evidence of a habit. That is:
[V]arious times that they [the witnesses] would either be meeting Coy Murray or following him when he would for unknown reasons — sometimes to throw papers but sometimes unknown reasons — could cross the center line and then weave back into his own lane of traffic . . . [M]any times ... he [Murray] would appear like he was intoxicated sometimes — he would weave back and forth. But all the witnesses . . . would say that he would come across the center line and then usually jerk back as if he was distracted or looking away from the way that he was going.
The appellants sought to have this testimony admitted under Ark. Stat. Ann. § 28-1001, Rule 406 (Rep. 1977). That rule reads:
Rule 406. Habit — Routine Practice. — (a) Admissibility. Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eye-witnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.
(b) Method of Proof. Habit or routine practice may be proved by testimony in the form of an opinion or by specific instances of conduct sufficient in number to warrant a finding that the habit existed or that the practice was routine.
Our rule permitting evidence of a relevant habit is in accordance with leading authorities. McCORMICK ON EVIDENCE § 195 (2d ed.); IWIGMORE ON EVIDENCE § 97 (3rd ed.). But the question is always what behavior constitutes habit? McCormick defines it as a person’s “. . . regular practice of meeting a particular kind of situation with a specific type of conduct, such as the habit of going down a particular stairway two stairs at a time, or of giving the hand signal for a left turn, or of alighting from railway cars while they are moving. The doing of the habitual acts may become semi-automatic.” McCORMICK ON EVIDENCE, supra.
The proffer of testimony in this case did not show that at the time of the accident the decedent was delivering papers, or that he was attempting to obtain a chew of tobacco. There is nothing in the proffer to show that he was on a route where he delivered papers. The trial judge in his discretion found the evidence to be inadmissible. To reverse that decision we would have to find the decision clearly erroneous. Based on the proffer made we cannot say that.
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John I. Purtle, Justice.
Appellant was convicted of capital murder and sentenced to life without parole. On appeal he argues the following four points (1) the trial court erred in denying the appellant’s motion for two separate juries; (2) the trial court erred in refusing to allow appellant’s counsel to voir dire prospective juror, Mr. Wood, out of the presence of the other prospective jurors, regarding a newspaper article that he had read concerning the case; (3) the court erred in not granting appellant’s motion for a mistrial; and, (4) the evidence was insufficient to support the verdict and the court erred in not directing a verdict of acquittal at the close of the state’s case and in not directing a verdict of acquittal at the close of all the evidence. We do not find prejudicial error in any of the points argued and therefore affirm the judgment rendered in the court below.
Wanda Turnbow, an employee of J. C. Penney Company, was murdered on the evening of December 28, 1979, while she and Thomas Lloyd, a fellow employee, were closing the store. Lloyd testified that while he and Turnbow were closing up he heard a knock on the outside door which was locked. He went to the door and saw the appellant, a former employee, and not being suspicious he opened the door and allowed him to come in. Lloyd testified that the appellant then pulled a gun, forced him to open up the safe, then caused Mrs. Turnbow and him to get up against the wall inside the vault. He said that appellant fired one shot which went by his left ear and clipped a part of his afro hairdo. He also heard the appellant shoot Mrs. Turnbow three times. Lloyd stated that when the bullet narrowly missed him he feigned death and slumped to the floor. He said he glanced up at the appellant as he was taking the money from the safe and leaving the vault. Lloyd alleged he stayed on the floor for several minutes after the appellant left and then attempted to pull the vault door open but was unable to do so. During the next few minutes he wrote a note on a piece of cardboard which stated that the appellant killed Wanda Turnbow.
When Mrs. Turnbow did not arrive home at the expected time her husband went to the store. He was able to enter through the unlocked door, then contacted Lloyd by voice through the vault door and upon opening the door found his wife’s body in a pool of blood and Mr. Lloyd standing with the note in his hand stating the appellant had been the perpetrator of the crime.
The appellant’s version of what happened is entirely different. He stated that he was on suspension as an employee of the store as a result of a $1500 shortage in company funds a few weeks earlier which he contended Thomas Lloyd had taken and given him a portion of to remain quiet. He further testified that he received a call from Lloyd on the morning of the murder. He said Lloyd requested him to bring a pistol to the store at closing time, which would be used to make it look like there had been a robbery although Lloyd was really going to pull an inside job. Appellant stated he secured his father’s pistol and delivered it to Lloyd at the door of the store about 9:15 p.m. on the date of the murder. He alleged that Lloyd told him to return in 15 or 20 minutes and at that time Lloyd appeared at the door and handed him a money bag containing some money and the pistol which he had given Lloyd earlier. Appellant stated Lloyd told him he had changed his mind but was giving him some money and returning the pistol because of the trouble he had gone through.
The appellant took a friend into his confidence later in the evening and told him he had received some money as a part of a robbery and wanted the friend to hide it. The friend hid the money bag. It contained $600 or $700 when discovered. The other bags and the balance of the money and checks were never recovered.
The police came to the murder scene and made a complete investigation. The report revealed a bullet hole two feet four inches above the floor with a hair-like object where the bullet had entered. A second bullet was located about five feet four inches above the floor. Appellant obtained this police report along with other items through Rule 17 discovery procedures. However, the day before the trial the officer who made the report decided that he had made a mistake as to which place the hair-like object was located. He changed his report to show that this item was found at the five feet four inch level rather than the two feet four inch level as shown on the report. This was reported immediately to the prosecuting attorney who changed his copy of the file report to reflect the new information. However, appellant did not learn of this change until the officer testified on the stand. He moved for a mistrial immediately which was denied. The appellant insisted that this surprise information amounted to a complete change of circumstances and required an entirely different approach to his defense. The hair-like object had not been analyzed nor was it introduced into evidence.
There is no need for us to take much time or space to dispose of the argument that the appellant was entitled to be tried by two juries. Our Criminal Code (Ark. Stat. Ann. § 41-1301 (Repl. 1977)) provides that the same jury shall both hear the evidence and determine the sentence in a bifurcated trial for capital murder. The argument that a death qualified jury is impermissible has been dealt with many times by this court and has been repeatedly rejected. Giles v. State, 261 Ark. 413, 549 S.W. 2d 479, cert. denied 434 U.S. 894 (1977). We recognize that the case of Grigsby v. Mabry, 483 F. Supp. 1372 (E.D. Ark. 1980), was reversed and remanded in 637 F. 2d 525 (8th Cir. 1980) and is still pending. It is our understanding that the federal district court will deal with this problem. However, at this time we are unwilling to change our previous position on the matter.
The appellant argues that he should have been allowed to voir dire juror Wood out of the presence of the other jurors. Juror Wood had admitted reading something about the case in the newspaper. It might have been the better practice to question this juror out of the presence of the other jurors but we do not think it was prejudicial error to refuse the request. Appellant’s counsel may have felt compelled to curtail his inquiry because he was in the presence of all the jurors but, nevertheless, the juror responded to the court’s questioning that he would be able to lay aside any idea he had gained from reading the newspaper and try the case as presented. The appellant’s request for a sequestered jury for voir dire purposes was denied. We cannot say this constituted error but do note that the court eventually allowed them to be questioned one at a time from the witness stand while all the other jurors listened in. Timewise it would have been as expedient to have sequestered the jury. In any event, the appellant failed to exercise a peremptory challenge on juror Wood and thus has no standing to complain on appeal. Butler v. State, 264 Ark. 243, 570 S.W. 2d 272 (1978).
The third point argued by appellant is somewhat more difficult. However, we think the changed police report merely went to the credibility of the testifying officer. There is no question that the state’s attorney should have notified appellant’s attorney of this event but we cannot say that it was intentional on the part of the state. At the same time we can understand the appellant was surprised at the testimony which was not what he had been led to believe it would be. The hair-like object was not introduced at the trial nor was any great deal made about it during the presentation of the state’s evidence. Appellant was also allowed to impeach the witness’s testimony in regard to his prior inconsistent statement. Trial courts are granted a wide latitude of discretion in ruling on matters occuring during the trial and decisions of the trial courts will not be reversed in the absence of an abuse of discretion. Petty v. State, 245 Ark. 808, 434 S.W. 2d 602 (1968). In fact, we have many times held that a mistrial is such a drastic remedy that it is only appropriate if justice cannot be served by a continuation of trial and when it is obvious that any possible prejudice cannot be removed by any other means. Cobb v. State, 265 Ark 527, 579 S.W. 2d 612 (1979). We are not willing to state that the trial court abused its discretion in denying the mistrial in this case.
The fourth point argued by the appellant is that the evidence was insufficient to support the verdict. The pistol which was admittedly used in the perpetration of this crime was brought to the store by the appellant and was returned to his home after the crime. Also, he was found to have been in possession of one money bag from the robbery. The testimony of Thomas Lloyd clearly and unequivocally places the entire responsibility for this crime upon the appellant. We are unable to say that there was not sufficient evidence to support the verdict. The jury had the right to believe either of the witnesses and in this case they obviously believed Lloyd. When the facts are to be resolved by the jury, we do not disturb their finding. Campbell v. State, 265 Ark. 77, 576 S.W. 2d 938 (1979).
After reviewing the transcript of the proceedings and all rulings adverse to the appellant we have concluded that there was no prejudicial error in the court’s rulings and none which was not argued by the appellant.
Affirmed.
George Rose Smith, J., concurs. | [
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Frank Holt, Justice.
A jury found appellant guilty of rape (Ark. Stat. Ann. § 41-1803 [Repl. 1977]) and assessed his punishment at 50 years imprisonment. Through his court appointed counsel, appellant first asserts for reversal that the trial court erred in allowing the state’s attorney to use a codefendant’s prior statement which was not made available to appellant’s counsel before trial as is required by the pertinent rules of discovery, Ark. Rules of Criminal Procedure, Rules 17.1 and 19.2, subject to the provisions of Rule 19.7.
Appellant’s codefendant gave a police officer, five months before trial, a statement cross-implicating the appellant. It was understood between the state and the defense counsel there was no need to file a formal discovery motion since the state had an open file policy by furnishing its entire file to defense counsel. When the state attempted to cross-examine appellant’s codefendant on the basis of the cross-implicating statement he had made to the police officer, a timely objection to use of the statement, due to failure to comply with the rules of discovery, was raised by counsel for the codefendant. The court later acknowledged that counsel for the appellant joined in this objection. The trial court refused to allow the codefendant’s signed statement into evidence due to the state’s attorney’s failure to comply with the discovery rules. However, he allowed the prosecutor to use the cross-implicating statement to impeach the testimony of the codefendant and then, in rebuttal, question the officer, who had taken the undisclosed statement, about its contents. It is undisputed that appellant’s counsel and his codefendant’s counsel were unaware of the statement until its attempted use during trial. Also, the state’s attorney had only learned of the statement the previous day and was under the mistaken impression that the defense counsel was aware of it.
Where the police have an undisclosed statement, as here, we have held that knowledge of the statement is imputed to the prosecuting attorney and that the Rules of Criminal Procedure, Rules 17.1 and 19.2, require a disclosure in order to give meaning to the purpose of those rules. Williams v. State, 267 Ark. 527, 593 S.W. 2d 8 (1979); Lacy v. State, 272 Ark. 333, 614 S.W. 2d 235 (1981); and Earl v. State, 272 Ark. 5, 612 S.W. 2d 98 (1981). Here, as indicated, the court excluded the signed cross-implicating statement. However, he permitted the codefendant to be questioned about it and, upon rebuttal, allowed the officer, who took the statement, to testify about it for impeachment purposes. Since a timely objection was made, we hold the court should not have permitted the use of the undisclosed statement for any purpose.
Appellant next asserts that since the state’s information charged the appellant with rape in violation of § 41-1803 by engaging in sexual intercourse by forcible compulsion, evidence by the prosecution should be restricted to that allegation and not be permitted the “mention of or reference to any allegation regarding deviate sexual activity.” There is no merit to this argument. Section 41-1803 reads:
A person commits rape if he engages in sexual intercourse or deviate sexual activity with another person by forcible compulsion ....
The information sufficiently complied with Ark. Stat. Ann. § 43-1006 (Repl. 1977) which requires that the language of the indictment must be certain as to the title of the prosecution, the name of the court in which the indictment is presented, and the names of the parties, subject, of course, to a bill of particulars. Furthermore, we said in Butler v. State, 261 Ark. 369, 549 S.W. 2d 65 (1977), that where the entire sequence of events is such an inseparate whole, then the state is entitled to prove the entire criminal episode.
Neither do we agree with appellant’s contention that the court erred in refusing his requested instruction on consent which contained language with respect to “the duty” of the woman upon being assaulted. A sufficient answer is that the court, without objection, gave the applicable parts of AMCI § 1803 which defines rape. This instruction is in accordance with our per curiam, order of January 29, 1979, 264 Ark. 967, which requires the use of AMCI unless the trial court determines the instruction does not accurately state the law. In that event the court must state its reason for refusing the instruction. Wharton v. Bray, 250 Ark. 127, 464 S.W. 2d 554 (1971).
For the reason indicated, we reverse and remand. | [
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ENGLISH, C. J.
Frank Tomlinson commenced this action of replevin for a number of articles of merchandise, before a justice of the peace of Vaugine township, in Jefferson county, against J. Q-. Alexander, a constable. On the execution of a bond by plaintiff, the goods were delivered to him by the officer to whom the writ of replevin was directed. There was atrial before the justice of the peace, and judgment for defendant; plaintiff appealed to the Circuit Court, where there was a trial, de novo, verdict for plaintiff, and judgment that he retain the goods; a new trial was refused defendant, and he took a bill of exceptions and appealed to this Court.
On the trial, plaintiff introduced evidence conducing to prove that he was a merchant at Pine Bluff, and Creed T. Alcorn had a store at Pastoría above, on the Arkansas River, where he had been doing a mercantile business for several years, and plaintiff had sold him goods. In the spring of 1880, he had become indebted to plaintiff — got behind in his payments and plaintiff refused to make further sales to him on credit, but entered into an agreement with him to let him have goods to sell as his agent, he to account to plaintiff’ for the billed price of the goods, and all over to be his. Under this agreement plaintiff shipped him several bills of goods; and in December 1880, plaintiff let him have goods in suit to be sold by him as his agent on the above terms. Plaintiff bought some of the goods, to make up the bill, of W. L. Packard, who was also a merchant of Pine Bluff, and paid him for them. The goods ’ were placed on board the steamer Big Rock, at Pine Bluff, by plaintiff, and consigned to Alcorn, at Pastoría, by bill of lading.
Before the boat left the wharf at Pine Bluff, defendant, as a constable, levied an execution upon them in favor of Packard, as the property of Alcorn, took them into his possession, and plaintiff replevied them.
The Court charged the jury as follows : '
“If the jury believe from the evidence that plaintiff consigned the goods in question to Alcorn to be sold by Alcorn as plaintiffs agent, and did not sell them to Alcorn, and that the transaction was in good faith, and free from fraud, the plaintiff will be entitled to recover, and if the jury shall so find the goods to be plaintiff's, his rights to recover should not be defeated by delivering them to the steamboat to be by the boat delivered to Alcorn."
The Court remarked to counsel in the presence of the jury, the bill of exceptions states, “That what effect an actual delivery of the goods to Alcorn, and by him mixed with his own goods, would have, is not necessary to decide, as there is no evidence that Alcorn had received and mixed the goods with his own."
Defendant excepted to the charge of the Court, and made it ground for a new trial, as well as that the verdict was contrary to evidence.
Had appellee made an ordinary sale of the goods to Al-corn upon credit, when he delivered them on board the boat, and consigned them by bill of lading to him, the title would have thereby vested in Alcorn, and the goods would have been liable to execution as his property, subject to the appellee’s right of stoppage in transitu. But such is not the case made by the evidence. The charge of the Court was right upon the facts as stated hypothetically.
Counsel for appellant submit that the case is within the .clause of the statute of frauds, which provides that, “where any reservation or limitation shall be pretended to have been made of any use of property by way of condition, reserva tion or remainder in another, the same shall be taken, as to all creditors and purchasers of the persons so remaining in possession, to be void, and that the absolute property is with the possession, unless such * * * reservation or limitation of the use or property were declared by will or deed in writing, proved or acknowledged and recorded as required by this chapter.” See the whole section from which this clause is copied; Gantt’s Digest, Sec. 2957, and State Bank v. Williams, 6 Ark., 156.
But the facts in evidence do not bring the case within this or any provision within the statute of frauds.
Packard could not have credited Alcorn on faith of his possession of the goods in question, for they never reached him.
The case is more like the shipment of goods to an agent to be sold upon commission, and a levy upon them under an execution in favor of a creditor of the agent before they come into his possession, as his property.
Under the charge of the Court, the question of fraud in the transaction as between appellee and Alcorn was left to the jury, upon the facts in evidence; their veidict was in favor of appellee, and there is no valid ground on which it could'be disturbed.
Affirmed. | [
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