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EakiN, J.:
This action was brought before a Justice of the Peace, to recover compensation for care and attention bestowed by the wife of appellee Hobbs, upon the child of appellant. It was taken by appeal to the Circuit Court, and submitted to the Judge sitting as a jury.
The effect of the evidence, as presented in the bill of exceptions, is : that the child, which was feeble and sickly and very young, was given by appellant Ozier’s wife to Mrs. Hobbs, to be raised. It seems the mother was then in a dying condition. Mrs. Hobbs took the child and kept it some two years or more, rendering it fair motherly attention. During this period appellant did many acts of neighborly kindness to Hobb’s family, sending them provisions, furnishing teams, etc. It affirmatively appears that neither party intended to charge for services, to the child on one hand, or for articles or labor furnished on the other.
Ozier, having learned that the child had been corrected by the son-in-law of Mrs. Hobbs-, took it away. She was - much mortified by this, and Ozier afterward told her that he had only taken it temporarily, and meant to return it after her son-in-law left. She made some answer which induced him to believe that she did not desire or urge it, and he never did.
It seems further that Mrs. Hobbs had bought a sewing machines in the expectation that Ozier would pay for it. When the note became due he refused to do so. This, with other reasons, induced Hobbs to sue for the past services of his wife with regard to the child.
The court refused, at the request of appellant, to declare the law to be:
“First — If the plaintiff and wife, at the time the child was taken to their house to be raised, and during its continuance there, did not intend to.charge for board and attention rendered to it, he has no cause of action in the case.
“)Second — If it was understood by and between plaintiff and his wife, and the defendant, during the time the child was at their house, that no charge was to be made against the defendant for board and attention to the child, the plaintiff cannot, afterwards, claim compensation and maintain this action.”
The court, instead, made the following declaration :
“Upon the evidence in this case, the defendant is liable to the plaintiff for a reasonable compensation for the care of the infant of said defendant, less the value of the contributions made by the defendantand upon that found for the plaintiff the sain of $50. The court based this finding and con-chision on the ground that defendant permitted the wife of plaintiff to receive his child, an infant, from his (defendant’s) wife on her death bed, under the belief that the plaintiff’s wife was to have the child, and raise and care for it as her own, and permitted her to have the care and charge thereof for two years and six months ; that he made sundry advancements or contributions of provisions, medicines and clothing, amounting to $175, towards the support of the child, neither party intending to charge the other for these favors, and that defendant afterwards took the child away, pretending that the child was mistreated, 'and that against the assent of plaintiff.
The general principle is well announced in the instructions asked; that, services intended at the time to be gratuitous, cannot, afterwards, be used to raise an implied contract to pay for them ; and this was the case made by the paper filed before - the Magistrate. It was a simple account against Wm. J. Osier, in favor of Isaac Hobbs, for “board, attention and care” of the child, at the request of the defendant, from June 16th, 1872, to August 1st, 1874, $300. According to the findings of the court in this action, the declarations of law asked by defendants should have been given, and the judgment should have been in his favor. ;
There is nothing in the whole case to indicate that plaintiff intended or desired to proceed against the defendant on the ground of his wrongful conduct in taking away the child, in violation of his supposed implied contract (which was found by the court to be a fact) to allow plaintiff’s wife to keep and raise the child as her own ; nor is there any proof of damages incurred by plaintiff or his wife, on account of the tortious conduct of defendant, resulting from loss of future services. We do not mean to say that the injury to the feelings of the wife, in depriving her of the society of the child, to which she may have become very much attached, and her mortification on account of the unjust censure of her conduct, implied by defendant’s pretences, might not have been estimated in the assessment of damages by a jury or a court sitting as such, in an action properly framed for the purpose. , We merely mean, that in this action and on the proof there is error in the judgment.
Let the judgment be reversed, and the cause remanded for a new trial. | [
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Caruth, Special Judge.
Suit on two writings obligatory, made in the fall of 1863,. and due in the fall of 1864, payable to Ephraim Mirick, or-order. Both notes bear the following endorsement:
“For value received I assign the within to William W.. “ Andrews, waiving demand and notice of non-payment.
‘■‘■November 3, 1864. . “Ephraim Mirick.”
They are both sealed instruments.
Mirick departed this life on the 7th day of April, 1874, and.' these writings obligatory properly verified, were, in March, 1875,’presented to Thomas H. Simms, the appellee, his administrator, for allowance as just claims against his estate. They were disallowed, and the disallowance approved upon hearing before the Hempstead Probate Court. An appeal was prosecuted to the Hempstead Circuit Court, and the case was heard; by the court sitting as a jury.
The appellee interposed the following defenses :
First — The statute of limitations.
Second — That the endorsements of the writings obligatory offered by plaintiff as the basis of her claim, were not made, by said Mirick except as to the signature.
Third — The want of de'mand upon the makers of said writings obligatory, and notice of non-payment.
To sustain plaintiff’s case she read in evidence her notice, given to the defendant before presentation to the Probate Court, for allowance; her authentication of the same; the endorsement of disallowance ; and finally the original writings-obligatory with thpir respective endorsements.
The date of the death of Mirick was agreed as above indicated.
The defendant, to sustain the issues on his behalf, called -A. B. Williams, Esq., and testified himself. A. B. Williams testified substantially, that he had practiced law for many years at Washington, where appellant’s intestate lived, and had frequently done business for him. That some time in the winter of 1865, or 1866, Andrews came to him as a lawyer for his opinion, stating that these notes had been endorsed to him "by Mirick in blank, and asked his advice as to his rights in the premises. He advised him that he might fill up the blanks as they now appear, and Andrews did so. Doesn’t remember whether he consulted him at his ofiice or not. The opinion he gave Andrews was as a lawyer, and supposes he so took it, but did not consider himself as his attorney, and made no ■charge for the advice.
The plaintiff moved to exclude his testimony as being within the rule protecting privileged communications. This motion was overruled.
Simms testified that Andrews told him he had received the writings obligatory endorsed in blank, and that afterwards, under the advice of A. B. Williams, Esq., he had filled in the endorsements as they now appear.
The court declared its conclusions of law :
First. Overruling the plea of the statute of limitations.
Second. That the filling in of the endorsements was void in "law, and a fraud in Mirick.
Third. That a demand and notice, or a waiver thereof, was necessary to bind Mirick, and disallowed the claim.
To reverse which, this appeal is prosecuted .
The initial point of consideration is the admission of Williams’ testimony against the objection of defendants’ counsel.
The motion to exclude should have prevailed.
Any communication made by Andrews to Judge Williams, whilst taking bis professional advice, is privileged. Such is the rule, wisely laid down by the law, and we see nothing in the record which would justify us in making this an exception. It was adopted from reasons of public policy, and through a regard to the interests of justice. A wise policy encourages and sustains the most unlimited and generous confidence between lawyer and client by requiring that on all facts confided in professional consultation the lips of the attorney shall be forever sealed. In this case, it is clear Andrews went to Williams as a lawyer for legal advice. It matters not whether a fee was charged on Williams’ books. He had an unquestionable right to charge and doubtless Andrews so expected. It is clear the relation of attorney and client existed between them.
The rule does not require any particular form of application or engagement, nor the payment of fees. It is enough — to use Mr. Greenleaf’s language — that he was applied to for advice or aid in his professional character. 1 Oreenl. Ev.> Sec. 241.
Our statute on this subject provides the following persons shall be incompetent to testify :
“An attorney concerning any communication made to him “ by his client in that relation, or his advice thereon, with- “ out the client’s consent.” Gantt's Digest, 2482.
Believing, as we do, that the principle thus laid down is both salutary and wholesome, and tends to conserve interests of the highest character, we follow it strictly, and hold that the testimony was inadmissible and should have been excluded.
The conclusion of law reached by the court below, that the same statute of limitation applicable to the makers of these writings obligatory, applied to this suit of the assignee against, the payee and assignor, Mirick, was an error.
These sealed notes were assignable only by reason of the statute of assignments, and non-negotiable in their character. Andrews’ claim must have been and was based upon the contract of assignment or endorsement. As to the note, being a sealed instrument, the statute bar was ten years, and to other written contracts, five years. The endorsement of these writings obligatory, together with the contract implied therefrom, by law, and which the endorsee had a right to insert over said indorsement, constituted a written contract between Andrews and Mirick, within the intent and meaning of the statute prescribing limitations for such contracts. It was separate, distinct and independent from the contract of the maker as evidenced by the writing obligatory, and carried with it, of necessity, its obligations and corresponding enforcement. This contract was not under seal, and we see no reason why the limitations applicable to sealed instruments should be enforced as to it.
That it was such a new contract, seems to be established both upon principle and precedent. Says Mr. PaiisoNS, in his work on Notes and Bills.
“An endorsement being a new and independent contract,, every endorser of a bill makes a new contract, and will be considered by the law as the drawer of a new bill. The indorser of a note does not stand in the situation of maker to his indorser.” Parsons’ Notes and Bills, vol. 2, p. 25.
The Supreme Court of the United States, in Boss v. Jones,. 22 Wallace, 589, uses this language :
“The indorser is not a surety in the general sense, but stands in the attitude of a drawer of a new bill, and the maker and indorser are liable in different contractsand proceeds to hold that the cause of action never accrued at the same time as to the endorser and maker.
So, the Supreme Court of Iowa held the endorsement of a promissory note constituted a distinct contract. National Bank of Michigan v. Green, 33 Iowa, 140. And so rigidly was this doctrine enforced in Louisiana, that her Supreme Court decided in a case where the note itself was void, and not enforcible against the maker, that the contract of assignment was so distinct and independent of the contract of the. maker, it should be enforced. Succession of Weil 24 Lou. Ann., 139. And the same doctrine obtains in Georgia. Graham v. Maguire, 39 Ga., 53. The case of Whistler v. Bragg, 31 Mo., 124, is in point. In that case a non-negotiable promissory note, when past due, was assigned by the payee to Whistler. The Missouri statute of limitations, as to the note, would have been ten years ; but the court held that in a suit between the assignee and assignor, another and different limitation applied, and inasmuch as more than five years elapsed since the cause of action accrued against the assignor — pronounced against the plaintiff. See also Barker v. Cassiday, 16 Barb., 180.
This court held in Levy v. Brew, 14 Ark., 336, that when a note has been endorsed after its maturity, it is, in legal effect, as between the indorser and endorsee, an inland bill of exchange, payable on demand ; while between the indorsee and maker it remains a note. These notes were endorsed after maturity, and accordingly, as between Andrews and Mirick, became in effect, inland bills of exchange, and as such must be considered in applying the statute of limitations. More than five years having elapsed, the statute was properly pleaded, and the plea should have been sustained.
The only remaining point for consideration is as to the conclusion of law of the court below, releasing the assignor, because no demand and notice of non-payment was shown. The testimony of Simms discloses the fact that these notes were endorsed in blank, and that long afterwards, Andrews, 'without the knowledge or consent of Mirick, wrote over them the waiver of demand and notice. That when these notes were •offered in trade to Andrews, he refused them, saying the makers were insolvent, and he would not pick them up in the street; whereupon, Mirick remarked, my name on them makes them .good, and they were then accepted.
The contentions of the learned counsel for appellant, are :
First. The endorsement, in blank, justified Andrews in filling -it as he did ; and,
Second. If it did not, the language used by Mirick at the 'time of the contract, was equivalent to a waiver of demand and ’notice. 1
We cannot subscribe to either proposition.
The holder of paper, endorsed in blank, may not only write •directions to whom it shall be paid, but may, as we believe, write what else he will, consistent with the liability assumed 'by the endorser. He cannot, for example, write over the indorser’s name, “demand and notice waived,” for this would •enlarge the liability of the indorser. 2 Parsons Pfotes and .Bills, p. 20.
It follows, therefore, that the endorsement of the waiver of ■demand and notice, over the signature of Mirick was unauthorized, and by it he can take nothing.
But it is insisted that the expression used by Mirick at the time of the trade, when it was objected that the makers were insolvent, to-wit; that his name made the notes good, was •equivalent to a waiver on his part. There is nothing in that •expression which justifies the conclusion that Mirick intended to waive any right. On the contrary, it is in no wise inconsistent with the idea, that being bound as indorser made the .paper good, in the event the makers failed to pay on due ••demand, and he had notice thereof.
We have carefully examined the authorities cited by learned counsel for appellant. They unquestionably establish the doctrine that a waiver may be found from the circumstances and facts aliunde; but none such appear here. No demand and. notice having heen made and given by Andrews to Mirick, the indorser was discharged. Such has been the invariable ruling-of this court.
It follows from what we have above said, that although the-court below erred in the admission of Williams’ testimony, and in overruling the plea of the statute of limitations, yet, inasmuch as its judgment of disallowance was right, it must be affirmed.
Let it be so ordered. | [
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HarrisoN, J.:
This is an application by Thomas J. Russell and Jacob L. Shinn, for a Writ of Prohibition to the Circuit Court of Pope County, to restrain proceedings on a writ of certiorari sued out of it by William B. Young, and others, to the County Court of said county.
The facts upon which the application is made, as stated in the relator’s petition and admitted, are the following:
At the July term, 1878, of the County Court of said county, a petition, signed by one-third of the electors of the county, was presented for the removal of the county seat from Dover to Russellville, or Atkins, and an order was thereupon made for the submission of the question of removal, and, as to which of the places proposed, to the electors at the general election on the second day of September following. As shown by the abstract of the returns of the election, 1240 persons, a majority, as appeared by the polls returned by the assessor, of the whole number of electors of the county, voted for the removal, 707 against it, and 1104 for Russellville, but who were not such majority, and 687 for Atkins. On the 18th day of October thereafter, before the County Court had proceeded further in the matter, William B. Young, David West and ten other electors aud tax payers of the county, applied to the judge of the Circuit Court, in vacation, for and obtained a writ of certiorari to the County Court, to bring before the Circuit Court the order of the County Court, the poll books with the returns of the election from the townships of Clark, Griffin, and Independence, and the clerk’s abstracts of the votes, that said returns and abstracts might be quashed, and the result of the election declared by it; representing and setting forth in their petition, that although the abstract showed 1240 votes in favor of removal, only 1057 persons, and not a majority of the electors of the county, in fact, voted for it. That the clerk of the County Court, upon a suggestion that the returns from the townships of Clark, Griffin, and Independence, did not show the true result of the election in those townships, before proceeding to compare the same, notified the judges and clerks of the election in said townships to appear and amend them; and that in accordance with such notification they came before him and the justices of the peace he had called to his assistance, and made such changes and alterations in the same, as to make it appear by the abstract of returns, that a majority of the electors of the county had voted for the removal, and that 202 of the votes in favor of removal were cast by persons who did not reside in the townships in which .they voted.
The relators appeared before the Circuit Judge, and opposed the application, for want of jurisdiction over the subject matter ; which fact was recited in the order granting the writ.
A supersedeas to stay the proceedings of the County Court was also asked for, and granted.
The office of the writ of prohibition, is to restrain an inferior tribunal from proceeding in a matter not within its jurisdiction ; but it is never granted, unless the inferior tribunal has clearly exceeded its authority, and the party applying for it has no other protection against the wrong that shall be done by such usurpation. Bac. Abr. Title Prohibition ; Williams ex parte, 4 Ark. 537; Blackburn, ex parte, 5 Ark. 27; Ex parte Smith, 23 Ala. 94; Arnold et al. v. Shield et al. 5 Dana, 18.
The Constitution gives to the Circuit Court a superintending control, and appellate jurisdiction, over the County Court, Art* vii., sec. 14 ; but to the latter “exclusive original jurisdiction in all matters relating to county taxes, roads, bridges, ferries, paupers, bastards, vagrants, the apprenticeships of minors, the disbursements of money for county purposes, and in every other case that may be necessary to the internal improvement and local concerns,’’ of the county. Art. vii, sec. 28.
The removal of the county seat is manifestly a local concern of the county, over which the County Court has exclusive original jurisdiction; and its authority to determine for itself, whether the conditions exist upon which the removal is required, is unquestionable. Blackburn ex parte, supra.
But it is said the Legislature has made no provision for a contest of the election before the County Court. To this we reply, without expressing any opinion as to the conclusiveness of the returns : so, neither, has there been any made for a contest before the Circuit Court. For the Circuit Court to assume to determine^, in the first instance, and before the County Court has acted in the premises, whether a majority ol the electors have, or not, voted for the removal, is to withdraw the matter entirely from its jurisdiction. The statute has made it the duty of the County Court, if a majority of the electors of the county were in favor of the removal, at its next regular term, to order another election to determine which of the places — Rus sellville or Atkins — the removal should be ; but by the Circuit Court’s assumption of jurisdiction in the case, all f urther proceedings of the County Court have been prevented, and stayed, and the question as to such removal, the speedy settlement of which is of great importance to the people of the county, left undetermined, and the matter continued in doubt and uncertainty, until the final decision of the certiorari; for which wrong an appeal, or writ of error, could not afford a remedy, or correction.
The writ of prohibition asked for, will be issued, and the ■supersedeas ordered by the Circuit Judge, vacated. | [
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Eakin, J.:
On the 7th of June 1878, the appellees, John H. Talbot and Willard L. Packard, under their firm name, recovered of James M. Portis and William N. Portis under their firm name of Por-tis & Bro., the sum of $1678 28-100, with interest thereon at the rate of 6 per cent, per annum from date till paid, and their costs ; and also, in the same judgment they recovered of James M. Portis individually the sum of $123 67-100 and costs.
And also in the same judgment, they recovered of William N. Portis, individually, the sum of $60.5 50-100 and costs.
From this judgment Portis & Bro. and William N. Portis, on the 22d of February 1878, prayed an appeal from the Clerk of this court, which was granted. They executed and filed a supersedeas bond signed W. N. Portis alone with three sureties. The cause was advanced as a delay case, and the judgment of the court below affirmed here, on the 15th of June 1878.
By obvious mistake, the judgment was entered here against the appellants and their sureties for $1678 28-100, with interest from 7th of June 1877, and the further sum of $167 82-100, being ten per cent, damages, with costs ; and also the further sum of $605 50-100, with like damages and costs. The mistake consisted in rendering James M. Portis liable, as one of the appellants, for the individual judgment against William N. Portis. He had only asked the appeal from the firm judgment, and was not a party to the supersedeas (bond. The judgment against himself individually was not appealed. It was intended that the judgment here should follow that below, and be against the firm of Portis & Bro. for the larger amount, and William N. Portis alone for the lesser.
Execution issued from this court on the 1st July 1878, against both the Portis’s, and the sureties for both, amounts, with interest, damages and costs. It was levied upon certain lands and lots, as the property of William N. and James M. Portis, which were sold and pm-chased by Talbot & Packard, the judgment creditors, for $600, which was credited on the debt, less the fees paid $22 25-100.
On the 17th of August following an alias execution was issued, in terms which accorded with the judgment as it was intended, that is, it ran against the firm of. Portis & Bro. for the larger debt, damages and costs, and against William N. Portis and the sureties for the smaller debt of $605 55-100 damages and costs. Upon this execution was endorsed the credit for $600, proceeds of the first sales, less fees.
Upon a bill filed in the Jefferson Circuit Court in the month of September following, an interlocutory injunction was issued by the County Judge, restraining the Sheriff from levying this latter execution upon the property of the sureties in the bond, before he should have exhausted all the property of the principals: and ordering and directing him to levy upon lands pointed out by complainants. This order was afterwards sustained and continued by the Chancellor until further orders.
The bill upon which this injunction was granted, being exhibited here, discloses that the injunction was ordered on the grounds that the Sheriff refused to levy upon property pointed out by the principals, and was about to levy upon the property of the sureties in preference.
On the 2d November, 1878, the appellees, in whose favor the execution issued, moved this court for a writ of prohibition against the Circuit Court, to inhibit it from proceeding in the cause, and on the 9th they moved to set aside and annul the sale on the first execution, on the ground that they acquired no title by the purchase, and were misled in bidding by the representations of W. N. Portis, with regard to their ownership, and also on account of error in the execution, in not following the judgment.
In fact the first execution did follow the judgment entry of this court, but not as it should have been. The second execution was in accordance with the proper judgment as affirmed here, but there was no proper judgment entry to authorize or support it.
The error in the entry was a plain clerical misprision, arising naturally from the anomalous nature of the judgment below, which was the result of an arbitration, and included in one entry, three distinct judgments, one against the firm of Portis & Bro., one against William JST. Portis, and another against James M. Portis, the last of which was not appealed. It escaped the attention of the court in reading the record ; but it is of the nature of those which may be corrected at any time, even after the term ; inasmuch as it is clearly shown by other parts of the record, and the correction is necessary to make the record consistent.
The court will now make the correction, of its own motion, by a nunc pro tunc entry, as of the same date; and annul all that was done under the first execution, and recall the second. This will leave nothing upon which the suit for injunction can operate; and will supersede the exercise of the doubtful power of prohibiting the Circuit Court from proceeding in a matter within its general jurisdiction ; upon the grounds that in the particular case, it may seem to be proceeding erroneously. We do not doubt that the Circuit Court, in this case, upon being advised of the action of this court will make such ruling as to costs as it may deem equitable, and end the matter there. It does not seem to be a case for damages. There will be nothing left to restrain.
Let the entry here be corrected nunc pro tunc, to conform to the judgment below as affirmed, with proper costs and damages against the appellants and sureties, and in all other respects as originally intended; set aside all that has been done under the first execution, and recall the second.
With regard to the costs of $22.50, which seems to have been expended by appellees (plaintiffs in execution) upon their purchase under the sale, a question may arise. The application to set aside the sale, is made by themselves upon two grounds. One is that they obtained no title, and were induced to bid by the misrepresentations of William N. Portis; another, that ■the execution was irregular. There is no answer to the motion, and the eourt might perhaps grant the relief on the first ground alone, which if the execution had been regular, would have entitled appellees to execution for those particular costs also. Inasmuch however, as the mistake in the judgment entry entered into the execution rendering it excessive, at least as to James M. Portis, and the sale was made under such circumstances of irregularity, as to induce the court to set it wholly aside, and would have induced the court to do so, had the defendants in the execution applied for relief on their part, no costs as to it can be awarded. It was as much the duty of appellees as that of appellants to notice the error in the entry. Either party might have had it corrected on proper motion at any time, and a proper execution issued; and the attempt to avail themselves of it in its erroneous form, cannot entitle appellees to reimbursement of costs expended in the effort.
Let a new execution issue on the judgment as corrected. | [
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Jesse Turner, J.:
At the October Term, 1877, of the Pulaski Circuit Court, Henry E. Garth tiled his petition stating, that on the 10th day of October, 1877, he applied to J. N. Smithee, as Commissioner of State Lands, to enter certain vacant and unentered swamp and overflowed lands, granted by Congress to the State of Arkansas, under an act of Congress approved 28th of September, 1850, entitled, “An Act to enable the State of Arkansas and other States to reclaim the swamp lands within their limits,” and since confirmed to said State, and by said Commissioner offered at public sale in the manner and upon the notice required by law ; and thereupon tendered and offered to pay saidjCommissioner for said land, the sum of two dollars per acre, the price fixed by law, in a certain warrant issued by the Auditor of the State the 28th of August, 1871, under the provisions of section seven of an act of the General Assembly, approved the 23d of March, 1871, entitled, “An Act to amend an act entitled ‘An Act providing for the building and repairing of the public levees of this State,’ ” commonly denominated “Arkansas State Levee Bonds,” of which petitioner was at the time, and still is the owner and holder. That the bond tendered, No. 2,828, was filed and made a part of the record in the cause, and a copy of petitioner’s application was also filed, marked “A.” That the said Commissioner, contrary to law and his official duty, refused to receive said warrant and rejected his application o.i the ground, as the Commissioner alleged, that he was not authorized by law to receive the war. rants issued under the provisions of said act in payment for swamp lands of the State, with prayer that a writ of mandamus issue, directed to defendant, commanding him as such Commissioner to permit petitioner to enter the land mentioned in his petition, upon payment of the price fixed by law, in said warrant.
The defendant, J. N. Smithee, answered, alleging that the said bonds, issued under the act of March 23d, 1871, were issued in violation of sec, 6, art. x., of the Constitution of 1868, tho same being a loan of the credit of the State, without the consent of the people through the ballot box.
That he cannot by law receive the said warrants in payment of swamp and overflowed lands, because the Constitutional Convention of 1874, by ordinance duly passed on the 14th day of August, 1874 (a copy of which was filed and made part thereof), expressly forbids respondent as Commissioner of State Lands, to receive said warrants in payment for State lands, whether swamp and overflowed or otherwise, and that by an act of the Legislature, entitled an act approved December 14th, 1874, the respondent was further forbidden to receive said warrants in payment for the swamp and overflowed lands of the State.
That by an act of the Legislature, approved April 23d, 1873, it is provided, that in every instance the interest accruing on said levee warrants under the act of March 23d, 1871, shall be levied and collected from the owners of land who are bene-iitted by the making aud repairing of levees, or any ditches or drains, and not in the first instance chargeable on the State.
Respondent denies that the act of March 23d, 1871, was ever complied with by the citizens residing in the swamp and ovei’flowed districts of the State, by presenting their petitions to the Boards of Supervisors of the respective counties, etc., and denies that the application prescribed in sec. 4033 of Gantt’s Digest, was ever by the Boards of Supervisors for-Avarded to the Commissioner of Public Works and Internal Improvements, with the certificate of the County Clerk, etc.
And he denies that the Commissioner of Public Works ever-caused to be made accurate plans, surveys and estimates of the work required to determine the practical benefit and utility to the State or individuals.
Denies that the Commissioner of Public Works contracted with the lowest responsible bidder for the construction of all public works contemplated by the act of March 23d, 1871.
And denies that the Commissioner of Public Works ever furnished the Auditor of this State with the certificate, that the contractors had complied with their contracts and completed the same as prescribed by the said act.
That all of the lands improved and redeemed- under the said acts were private property, and no property of the State was improved or benefitted thereby.
Whereupon the petitioner moved the court, upon the petition and answer, to award him a peremptory writ of mandamus against the defendant, as prayed for.
And by consent it was ordered that the plaintiff: have leave to file a copy of the Levee Bond or warrant tendered as alleged in his petition, in lieu of the original, and that the same be taken as a part of the record in this cause.
The following is a copy of the Levee Bond or warrant, exhibited with the petition :
“ Number 2,828. “United States oe America,
“State oe ArkaNSas.
“Seven per cent. Levee Bonds :
“It is hereby certified that the State of Arkansas is indebted to J. W. Stansell, or the bearer hereof, for levee work done for said State, in the sum of Five Hundred ^ Dollars ($500), payable thirty years from and after March 23d, 1871, in lawful money of the United States, with interest at the :ate of seven per cent, per annum, payable semi-annually on the first days of January and July of each year, in the City of New York, on the presentation and surrender of the proper coupon hereto annexed, until the payment of said principal sum.
“Issued by authority of an act of the General Assembly of the State of Arkansas, approved March 23d, 1871, entitled an act providing for the building and repairing of the Public Levees of the State.
In testimony whereof, I have hereunto set my hand and affixed the seal of my office, at the City of Little Kock, Arkansas, on the 28th day of Angust, A. D. 1871.
[l. s.] ' “J. R. Berry, Auditor.
“HeNRY Page, Treasurer.”
Oil the 26th day of November, 1877, the following entry appears of record:
Come the parties by their respective attorneys and this cause having been argued and submitted at a former daj^ of this term, and the court being now well and truly advised in the premises, doth order that a writ of mandamus issue out of th:s court directed to J. N. Smithee,. as Commissioner of State Lands, commanding him as such Commissioner to grant the application of the petitioner, Henry E. Grarth, to purchase at private entry the swamp land described in his petition, to-wit: The south half of the north half and the south half of the southwest quarter ot section 36, township 18 south, range 22 west, upon payment of the price fixed by law, to-wit: Two dollars per acre, in Arkansas Levee Bond, numbered 2,828, of the denomination of five hundred dollars, tendered by the petitioner in payment for said land, and filed as part of the record in this cause, it appearing by consent of parties that the petitioner tendered the entire bond in payment for said land.
The respondent excepted to the ruling of the court and filed his motion for a new trial, assigning the following causes therefor:
Firnt — The court erred in holding the Levee Bond tendered in this suit to have been legally issued.
Second — The court erred in awarding the writ on the pleadings in this cause.
Third — The pleadings on the part of the defendant show a total want of power in the Auditorio issue the bond tendered, and under the issues joined, the defendant’s answer must be taken as true.
Fourth — The Legislature has no constitutional power to authorize the issuance o.f the bond tendered, secs. 6, 9 and 10,. art. x., of the Constitution of 1868, being a limitation on such powers.
Fifth — The act under which the bond in this case was issued was unconstitutional, in this, that the effect of such act was to loan the credit of the State to individuals in reclaiming their lands, when the consent of the people had not been obtained through the ballot box.
Which motion was overruled by the court, to the overruling of which motion the defendant excepted and took an appeal to this court.
Passing over the question of the constitutionality of the act of March 23d, 1871, which, under the circumstances of the case, we do not feel called upon to decide, we observe that if the act was constitutionally passed, the issuance of the warrant numbered 2,828, constituted a contract between the State and the party to whom it was issued, which neither the Constitutional Convention of 1874, nor the Legislature of 1875 could impair, or in any wise invalidate, because within the prohibition of the latter clause of sec. 10, art. i., of the Constitution of the United States.
But looking into the history of the passage of the act, we have come to the conclusion that the act was never constitutionally passed.
The Constitution of 1868, sec. 16, art. v., provides, that “Each house (of the General Assembly) shall keep a journal of its proceedings and publish the same, the yeas and nays of the members of either house, upon any question, shall be entered upon the journal at the request of five members,” etc.
Sec. 21, art. v., provides, that “Every bill and joint resolution shall be read three times on different days in each house before final passage thereof, unless two-thirds of the house where the same is pending should dispense with the rules. No bill or joint resolution 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.”
Referring to the journal of the House of Representatives for January 21st, 1871, at page 161, we find the following entry in relation to the act of 23d March, 1871.
“Mr. Waters in accordance with previous notice introduced a bill (H. R. 50) entitled “An Act to amend an act entitled an act providing for the building and repairing of the public levees of this State, and for other purposes,’ which was read a first time, and on motion of Mr. Waters, by unanimous consent, the rules were suspended, and the bill was read a second time, and on motion of Mr. Waters was referred to the Committee on Internal Improvements.
The bill was amended and modified in several particulars and referred to the Committee on the Judiciary.
We find the following entry in the House journal of March 13th, 1871, at page 698 :
Mr. Preddy, from the Committee on the Judiciary, to whom was referred the bill of the House (H. R. 50) entitled “ An act to amend an act entitled an act providing for the building and repairing of the public levees of this State, and for other purposes,” reported the same, and submitted the following report thereon, recommending a substitute therefor.
Here follows the report of the Committee on the Judiciary offering a substitute for the original bill embracing certain amendments previously offered to the bill.
On motion of Mr. Prigmore, the report of the Committee was adopted.
We find the further entry in blouse journal of the 16th of March, 1871, on pages 756 and 757.
The House proceeded to consider the substitute for the bill of the House, (sub. H. R. 50) entitled “An act to amend an act entitled an act providing for the building and repairing of the public levees of this State, and for other purposes.”
On motion of Mr. Waters, the bill was further amended by inserting in Section 14, after the word “all” in line one hundred and forty-five, the word “ other.”
On motion of Mr. Waters; The rules were by unanimous consent suspended, and:
The bill was read a third time by title, and :
On motion of Mr. Tygart; Ordered, that the bill be placed upon its final passage.
The question being put, shall the bill pass ?
It was decided in the affirmative; yeas 47, nays 24; not voting 11.
Those who voted in the affirmative are : — Messrs. Alexander, Sr., Barbour, Barron, Cate, Chamberlain, Clayton, Cohn, Espy, Fricks, Fulton, Garner, Goad, Grady, Haskins, Haddock, Hale, Ham, Harris, J. W., Harris, W. G., Harvey, Hargledine, Hallibaugh, Janes, Jenkins, Johnson, Joslyn, Mayo, Minor, Morgan, Neal, Oit, Parker, Peck, Preddy, Prigmore, Robinson, Sumpter, Thompson, Waters, Webb, Whittemore, Wiley, Wood, Young and the Speaker.
So the bill was passed.
This is the entire voting on the House journal touching the passage of the bill. The. nays are not entered on the journal.
When the bill reached the Senate, we find the following entry on the Senate journal of March 16th, 1871, page 232.
MR. PRESIDENT :
I am directed by the House of Representatives to inform jour honorable body of the passage by the House, of House Bill, No. 50. “An act to provide for building and repairing of levees of this State, and for other purposes.”
J. R. Richards, Clerk.
And the following further entries appear on the Senate journal of March 17th, 1871, page 296 :
House Bill No. 50 ; “An act for the building and repairing of levees in the State of Arkansas.”
Read once by title, and :
Under suspension of the rules read a second time, and referred to the Committee on Internal Improvements.
Those are the only entries on the Senate journal which deserve special notice. It will lie observed that ivhen the bill was taken up in the Senate, it was read once by title, and immediately thereafter read a second time under suspension of the rules. There is uo showing on the journals that the rules were dispensed with for the first reading of the bill-; on the contrary, we think it appears affirmatively that the rules were not suspended.
The journal to be kept by the two houses of the General Assembly, ought to bo a complete and' perfect reeord of its proceedings, and if it appears affirmatively on the journal that in the passage of any bill, some mandatory provision of the Constitution has not been complied with, it will be fatal to the validity of the statute.
Judge Cooley, speaking of the journal to be kept by each House of the General Assembly, says: “If it should appear from these journals, 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 tbe apparent performance of legal functions, every reasonable presumption is to be made in favor of tbe action of tbe Legislative body; it will not be presumed in any case from tbe mere silence of tbe 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 when it requires the yeas and nays to be entered.” Cooley’s Con. Lim. 135 and 136.
Judge Stoiy, in speaking of the provision in the Constitution of the United States on the same subject, says: “The object of the whole clause is to insure publicity to the proceedings of the Legislature, and a correspondent responsibility of the members to their respective constituents. And is founded in sound policy and a deep political foresight. Intrigue and cabal are thus deprived of some of their main resources by plotting and devising measures in secrecy. The public mind is enlightened by an attentive examination of the public measures ; patriotism and integrity and wisdom, obtain their due reward, and votes are ascertained, not by vague conjecture, but by positive facts.” Story on the Con., page 590 and 591.
Mr. Webster, in his speech delivered in the Senate of the United States, on the 16th of January, 1837, by waj^ of protest against expunging the resolutions of the 28th of March, 1834, speaking of this same provision of the Constitution of the United States, said: “The Constitution moreover provides that the yeas and nays on any question shall, at the request of one-fifth of the members present, be entered on the journal. This provision most manifestly gives a personal right to those members who may demand it, to the entry and preservation of their votes on the record of the proceedings of their body, not for one day or one year only, but for all time. There the yeas and nays are to stand forever as permanent and lasting proof of the manner in which members have voted on great and important questions before them.” Webster’s Works, 4 vol., page 295.
Professor Walker, in his treatise on American Law, says: ‘ ‘ When the yeas and nays are not called for, members may shun responsibility either by not voting at all, or by having their voices drowned in the mass; and even if their votes be known at the time, it is not recorded for future reference, but when the yeas and nays are called and entered upon the journal, every member must vote, unless excused, and that vote may be scrutinized at any future period, so that there may be no way of escaping responsibility.” Walker’s Am. Law, page 85.
In the case of the Board of Supervisors of Schuyler County, Appellant, v. The People, ex re, The Rock Island and Alton Railroad Co., Appellees, the passage of an act of the Legislature of Illinois, was called in question, because of an alleged non-compliance on the part of the Legislature with a provision of her Constitution similar to that in ours.
Chief Justice Catón, who delivered the opinion of the Court, said : “ The Constitution does require that every bill shall be read three times in each branch of the General Assembly before it shall be passed into a law, but the Constitution does not say that these several readings shall be entered on the journals ; some acts in the passage of laws are required by the Constitution to be entered on the journals in order to make them valid, and among them are the entries of the yeas and nays on the final passage of every bill, and we held in the case of Spangler v. Jacoby, 14 Ill., 297, that where the journal did not show this, the act never became a law.”
And in the case of Walker v. Griffith, decided by the Supreme Court of Alabama, at the December term, 1877, in which the validity of an act of the Legislature of Alabama was called in question, Judge Manning who delivered the opinion of the Court, said: “When the Constitution requires that a particular thing shall be necessary to the validity of an act of Legislation, and that the journal must show that this thing was done; as for instance the passage of a bill by yeas and nays, which shall be entered on the journals, unless they do show it, the act cannot be accepted as Constitutionally adopted. The thing thus required is' an additional means outside of the enrolled act, but in concurrence with the signatures of the Speaker of the House of Representatives, and President of the Senate, authenticating its passage through the two Houses, and renders the forgery of such an act more difficult, and as the passage of it by yeas and nays cannot, according to the Constitution be shown otherwise than by the journals, they must in respect to it, ‘import absolute verity.’ ” * * * *
The principal objects in requiring the journals to be kept, probably were:
First — That the members might be thereby informed from day to day of the progress and state of the business before them; and
Secondly — That constituencies might afterwards see how their representatives had performed their duties in the public councils. See Law Reporter of June 12th, 1878, page 711.
Recurring to House journal at pages 756 and 757, and comparing the action of the Legislature with Section 21, Article v. of the Constitution, requiring that “on the final passage of all bills, the vote shall be taken by the yeas and nays and entered on the journal,” we find that this important and, as we regard it, imperative requirement of the Constitution was not complied with. The yeas were entered on the journal, but the nays were not entered at all.
True, it is stated in the journal, that on the final passage of the bill, the vote stood affirmatives 47 ; nays 24; and 11 not voting.
If it be said that the affirmative vote shows that a majority of those voting were for the bill, we remark that this may be so, but when we reflect that the negative vote was not recorded at all, and that an examination of the journal shows that in all other cases where votes were taken on the bill, or amendments thereto in its passage through the two Houses of the General Assembly, the yeas and nays, if taken at all, were taken in full and entered upon the journals, it is well calculated to throw suspicion on the whole proceeding attending the sup-supposed passage of this bill. But whatever may have been the circumstances attending the supposed passage of the bill, it becomes our duty to hold the Legislative department to a strict compliance with a mandatory provision of the Constitution, which in every case on the final passage of a bill, requires that the vote be takep by yeas and nays, and entered upon the journal.
Manifestly the object of recording the yeas and nays is not to show that a quorum of the members of the House is present, or that a majority votes for the bill. The journal may show that there was a call of the House before the final vote on the passage of a bill was taken, and that a quorum was present, and indeed all the memhers present, and the journal may also state that a majority voted for the bill; yet if the yeas and nays be not entered on the journal, the requirement of the Constitution is not compled with, and the bill does not become a law.
' The Constitution says the yeas and nays shall be entered on the journal; and we have no right to say that this need not to be done, or that half compliance is sufficient.
It is not sufficient to enter the yeas and omit the nays, nor to enter the nays and omit the yeas, and in all cases the names ■of those voting in the affirmative and negative must necessarily be entered on the journal.
Turning to the proceedings of the House of Representatives on pages 756 and 757, of the House journal, we find that in the supposed passage of the bill under consideration, a positive requirement of the Constitution was disregarded ; without the observance of which, no valid law can be passed.
The right to decide upon the constitutionality of an act of the Legislature, is a matter of grave importance, and should •only be resorted to in cases of a clear violation of the Constitution. In cases of doubt the presumption is in favor of the validity of the law, and this out of deference to a co-ordinate department of the government.
But in the case under consideration our deliberate opinion is, that in the passage of the supposed act of the Legislature it does clearly appear, that an essential and imperative requirement of the Constitution was disregarded and we do, therefore, in full view of the great responsibilities resting upon us, and of the far reaching consequences of the decision we make, pronounce the act of the 21st March, 1871, null and void, and as a consequence that the Auditor’s warrant numbered 2,828, mentioned in the petition and issued under the provisions of said act, is also null and void, and created no binding obligation on the State, and as a ’further consequence that the Commissioner of State Lands was not bound to receive it in payment for the lands mentioned in the petition.
The judgment of the Court below is reversed. | [
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ENGLISH, Ci-r. J.:
The material allegations of the bill in this case are :
That on the 20th October, 1871, Joseph E. Jones sold and conveyed to W. 13. Shaver the southeast quarter of the southeast quarter of Section 32, Township 7 north, Range 29 west, for the consideration of $500, and Shaver conveyed to him Lot No. 1, Section 6, Township 6 north, Range 29 west, forty-seven acres, in payment of $200 of the purchase money, and for the remaining $300 gave him a note payable 25th December, 1872, bearing 10 per cent, interest. To secure the payment of the note', Shaver executed to Jones a mortgage back on the tract sold and conveyed by Jones to him, which contained a provision that if Shaver should fail or be unable to meet said note promptly at maturity, then and in that event the trade was to be cancelled, so far as that Shaver should reconvey to Jones the land, and Jones should deliver up to him the note; but for the use, occupation and profits of the land, Jones was to retain the tract conveyed by Shaver to him.
That in the month of January, 1873, after the maturity of the note, Jones was taken seriously ill at the house of L. J. Speigle, and during his illness Shaver went to see him, and expressing to him his inability to pay the note, proposed to him to rescind the trade according to the requirements of the mortgage, which was then and there agreed upon by the parties. But as Shaver did not have with him the deed to the land executed to him by Jones, it was definitely agreed between them that at some future day, not far distant, they would meet and rescind said sale according to the terms of the mortgage ; and it was further agreed between them that as the deed and mortgage had not been admitted to record, a destruction of them and the note would fully carry out the requirements of the mortgage for the recision of the sale ; and Jones expressed to Speigle his wish that this agreement with Shaver should be fully carried out, and the sale of the land rescinded according the terms ol the mortgage.
That Jones did not recover from his illness, but died about the 30th of January, 1873, and Speigle was appointed his administrator by the Probate Court of Sebastian County, Greenwood District, where the parties resided and the land was situated.
That on the 5th of February, 1873, a few days after the death of Jones, and after the grant of letters of administration upon his estate to Speigle, Shaver, with intent to cheat and defraud the creditors and heirs of Jones, filed and caused to be recorded in the Recorder’s office at Greenwood, the deed executed by Jones to him for said tract of land.
That a few days after tbe recording of the deed, Shaver came to the house of Speigle and stated the agreement between him and Jones to rescind the contract of sale by the destruction of the deed, mortgage and note, and as the circumstances and agreement were well known to Speigle, and believing it to be right, he consented to carry out said agreement, and upon his part consigned to the flames the mortgage and note, and Shaver on his part burned the deed, Speigle not knowing at the time time that the deed had been recorded.
That John Neal, the brother-in-law of Shaver, and who was his adviser in this fraudulent act, claimed to be the owner of the laud by purchase and conveyance from Shaver, and that he purchased with full notice of the above facts and circumstances, and was not an innocent purchaser.
The bill was filed by Speigle as administrator of Jones, against Shaver and Neal, in the Circuit Court of Sebastian County, Greenwood District, and after making, in substance, the above allegations, prayed a forclosure of the mortgage, if the court could not decree a rescission of the sale agreed upon, and cancellation of the fraudulent registration, deed, etc.
Shaver did not answer the bill, and a decree, by default, was entered against him.
Neal, in his answer, states that he purchased the land on the 11th of March, 1873, of Shaver, who ¡was then in possession of it, for $200, and that by deed of that date, Shaver conveyed the land to him.
He denies that he was the adviser of Shaver in the fraudulent matters alleged in the bill, and claims to be an innocent purchaser, etc.
The depositions read- upon the hearing are not copied in the transcript, but a bill of exceptions taken by Neal sets out what was proven by the parties. It appears from it that the plaintiff proved all and singular the allegations of the bill, except the allegation that Neal was the adviser of Shaver in the fraudulent matters alleged. Plaintiff also proved that Neal had notice before Shaver sold and conveyed to him the land, of all the alleged transactions between plaintiff and Shaver, including the execution of the note for purchase money and the mortgage to secure’ the same, etc. It was also proven that the land was well worth $300, and that Neal in fact paid Shaver but $100 for it, having purchased of him another tract at the same time, which was included in the deed from Shaver to Neal; and that Shaver was in possession of the land when he sold it to Neal.
The court rendered a decree against Shaver for the amount of the $300 note and interest, and condemned the land to be sold to satisfy the decree, and Neal appealed to this court.
I. Had Jones merely sold and conveyed the laud to Shaver and taken a note for the unpaid purchase money, he would have had ap equitable vendor’s lien upon the land for the payment of the note, and appellant having purchased the land of Shaver with notice that the purchase money was not paid, would have taken the land subject to the vendor’s equitable lien.
But Jones took a mortgage back from Shaver upon the land to secure the payment of the purchase money note, and thereby waived his equitable lien, and had to rely upon the mortgage. 1 Jones on Mortgages, sec. 207, etc.; Bispham Eq., sec. 355; Fish v. Howland, 1 Paige, chap. 30: Young v. Wood et al., 11 B. Mon., 128; Mattix v. Weand et al., 19 Ind., 151; Harris v. Harlan, 14 Ib., 434; Shelby v. Perrin, 18 Texas, 515; Hadley et al. v. Pickett, 25 Ind., 450; Little et al. v. Brown, 2 Leigh., 353; Mims v. Macon et al., 3 Kelly, 343.
II. At the time the deed and mortgage back were burned, Jones being dead, the legal title to the land was in his heirs at law, by virtue of the mortgage, and the equitable title was in Shaver, and the destruction of the deed did not divest Shaver of his title and vest it in the heirs of Jones. The legal existence of the deed and mortgage continued, though the papers on which they were written were burned. Strawn v. Norris et al., 21 Ark., 80.
III. After the title papers were burned, Shaver sold and, conveyed the land to appellant, Neal. If there was nothing in the case but the fact that appellant had notice, at the time he purchased the land, of the existence of the unrecorded and. unsatisfied mortgage, he would have taken the land discharged of the mortgage: because, under repeated decisions of this court, construing the statute providing for the registration of' mortgages, (Gantt’s Digest, chap. 98) actual notice of an unrecorded mortgage does not defeat the title of a subsequent-purchaser. Main v. Alexander, 9 Ark., 112; Jacoway v. Gault, 20 Ark., 190; Hannah v. Carrington, 18 Ib., 105; Carnall v. Du Val, adm’r, 22 Ib., 136; Jarratt et al. v. McDaniel et al., 32 Ib., 602.
But there is more in this case than mere notice of an unrecorded mortgage. There was a stipulation in the mortgage, that if Shaver should fail or be unable to pay the note secured by the moi'tgage promptly at its maturity, the contract of sale should be rescinded so far as that Shaver should reconvey the land to Jones, and he should deliver up to Shaver the note. After the maturity of the note, the parties were together, and Shaver expressing his inability to pay the note, the parties mutually agreed that as the deed and mortgage had not been put upon the public records, they would rescind the sale, as provided for by the mortgage, by burning the deed, mortgage and note, but inasmuch as Shaver had not the deed with him, the parties were to meet again soon thereafter, and comply with this agreement. But for this agreement, Jones acting as a prudent man would ordinarily act, might have protected himself against a subsequent conveyance of the land by Shaver, by causing the mortgage to be recorded. But the death of Jones prevented the subsequent meeting of the parties. A few days after the death of Jones, Shaver went to the house of -Speigle, who had become his administrator, and proposed to burn the title papers and note in compliance with the agreement between him and Jones, and Speigle having been present when the agreement was made, and believing it to be right, consigned the mortgage and note to the flames, and Shaver put the deed in the fire in his presence. But for this, Spiegle might, and it would have been his duty as an administrator, to cause the mortgage to be recorded for the protection of the estate which he represented. But the conduct of Shaver deceived him, and induced him to burn the mortgage, and thereby put it out of his power to cause it to be recorded without the trouble and expense of reproducing it.
After the death of Jones, and before Shaver went to Spei-gle to induce him to burn the mortgage and note, he caused his deed to be recorded, and concealed this fact from Spiegle when he induced him to consign them to the flames, and burned the original deed in his presence. This was an ugly fraud. After having so deceived and deluded Spiegle, he sold and conveyed the land to his brother-in-law, the appellant, who, according to the bill of exceptions, had full knowledge of all of the above facts, for one-third of its value. A court of equity would not have permitted Shaver to take advantage of the fraudulent registration of his deed, but would have opened the agreement upon which the mortgage, note and deed were burned. Nor can the appellant, in equity and good conscience, be allowed to avail himself of a fraud of which he had full knowledge, and which he aided Shaver in attempting to perpetrate by purchasing the land of him.
But we do not think the court below should have rendered a decree against Shaver for the amount of the note and inter est to the date of the decree, and condemned the laud to be sold to satisfy the decree, but should have enforced the agree-riient between the parties upon which the title papers and note were burned.
The decree must be reversed, and a decree entered here can-celling the deed from Jones to Shaver and its fraudulent registration, and the deed from Shaver to appellant so far as the land in question is concerned, and the legal title to the land will stand in the heirs at law of Jones, subject to the control which the statute gives of it to his administrator as-assets, etc.
The decree of the court below for costs against Shaver and appellant will not be disturbed. | [
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Eakxn, J. :
On the 10th of October, 1877, the town of Fort Smith, by its attorney, presented to the Sebastian County Court a petition for annexation to itself, of certain contiguous territory, described as follows : f “ The N. W. 1-4 of section 16, and all “ of section 17 lying in the State of Arkansas ; and all of sec-, “tipn 8 lying in the State of Arkansas, not included in the “ present limits of Fort Smith, except that part of section 8 “known as DuVal’s new addition, and that portion known as. “DuVal’s field: all in T. 8 N. of R. 32 west, situated in “Sebastian county.” The petition showed that the matter had been duly submitted to the qualified electors of the town as prescribed by law ; and that, at an election held on the 31st. .day of August, 1877, a majority of the votes had been cast for said annexation. A map, or plat, of the territory proposed for annexation, accompanied the petition; which was duly set for hearing on the 14th day of January, 1878.
On that day a remonstrance against the said annexation, was. filed, with the signatures of 106 persons, describing themselves as inhabitants and real estate owners within said contiguous tei’ritory. They declare their opposition to annexation,, and state that they had not bee.i consulted in the matter, and that they believe it would be unjust.
Next day the County Court, upon hearing the petition,, remonstrance, evidence and argument of counsel, held : That as it appeared that the remonstrants constituted a majority of' the freeholders and property owners, residing on said territory sought to be annexed, the petition ought not to be granted. It was therefore rejected, and the town appealed to the Circuit Court. The matter was there heard de novo, after a refusal to dismiss for want of jurisdiction.
The evidence adduced on trial showed that a part of the N. W. 1-4 of said section 16 had been laid off into blocks and lots. That is to say: There were in said section 683 1-2 lots, of which 518 1-2 had been sold ; that there were. 16 1-2 blocks entirely unsold and unnamed ; that part of these blocks were in the woods, and other parts consisted of low, swampy lands ; that the remonstrance was signed by a majority of the occupants and owners of the lots on this quarter section; that on said 17th section, embraced in the map, there was one field of about forty acres, and another of ten acres ; that the Birnie estate owned about 18 1-2 acres; that a part of said section was laid of in lots, ranging from a half acre to two acres, making a total of 80 acres in the State; that the largest portion of said section, to-wit, 300 acres, constituted what is known as the Government reserve, containing the old fort, national cemetery, and other buildings belonging to the United States, and occupied in part by the Federal District Court and its officers. A majority of the occupants and owners on this section also signed the remonstrance. The territory sought to be annexed lies all in the same county with and contiguous to the town of Fort Smith. This was all the evidence.
Upon the hearing the court held that there had been a full compliance with all that the statute inquired, in order to authorize the annexation; and that it was right and proper that the petition therefor should be granted. It was accordingly ordered that the remonstrance be dismissed, the prayer to the petition be granted, and that the said territory included therein be deemed and taken to be included in, and constitute a part of said town. The County Court was further directed to take proper legal steps for such annexation, in conformity with the judgment. The remonstrants excepted and moved for a new trial on the grounds that the Circuit Court had no jurisdiction of the matter; that the rejection of the petition by the County Court was final and conclusive ; and that the finding and judgment of the court was contrary to law and evidence ; The motion was overruled, and thereupon the remonstrants appealed and gave bond for supersedeas.
By the Constitution of 1874, (schedule, sec. 23,) the County Courts were made successors and mere continuations of the former Boards of Supervisors of the counties, and were given exclusive original jurisdiction in all matters necessary to the internal improvement and local concerns of their respective counties (Art. VII, sec. 28). All laws then in force, notin conflict with the new Constitution, were continued until amended or repealed (schedule, sec. 1). By the laws then in force, (Gantt’s Digest, secs. 706 and 1191) appeals lay in all cases, by persons aggrieved, to the Circuit Courts from the final judgments or orders of the Boards of Supervisors. This applies now to the County Courts, and it is plain that the Circuit Court properly entertained jurisdiction of this appeal, and it Avas further the duty of the Circuit Court to retain jurisdiction of the subject matter for final judgment, in the same manner and to the same extent as though original jurisdiction had been conferred on said Circuit Court by law. ( Gantt’s Digest, sec. 1195.)
The only remaining question is, did the court err upon the laAv and the evidence. This leads us to a particular notice of the general Act of March 9th, 1875, providing for the incorporation, organization and government of municipal corporations.
Sections 35, 36 and 37, provide for the creation of new corporations to meet the wishes of the inhabitants of localities, not already incorporated. They are required to file a petition to the County Court, signed by not less than twenty of said inhabitants, with a description and map of the territory, name of the town, and the persons authorized to act for the petitioners in court. A time must then be fixed for hearing said petition, not less than thirty days, of which notice must be given in a mode prescribed by the Act. The hearing must be public, and any person interested may appear and contest the -granting of the prayer, and affidavits may be used on both sides. If the County Court shall be satisfied, upon hearing-the case, that twenty voters reside in the limits described, and have signed the petition, and that the requisites of the law have, in other respects, been complied with; “and it shall, “moreover, be deemed right and proper in the judgment and' “discretion of the court, that said petition shall be granted,” then they shall make an order that the town may be organized, etc.
Sec. 84, under which these proceedings were had, was. framed to meet the case of a corporation already, formed, desiring to annex contiguous territory. It provides that the matter shall be first submitted by the town council to the “qualified electors,” which can only mean electors of the town. If a majority desire it, the corporation shall present a petition for that purpose to the County Court, whereupon “the like-proceeding shall be had on said petition as is prescribed in the 35th, 36th and 37th sections of this Act, so far as. the same may be applicable.” The Act then proceeds, “and if within “thirty days after a transcript shall be delivered as provided, “no notice of a complaint against such annexation shall be “given, at the end of said thirty days (and in case of any such “complaint, after the end of thirty days after the dismission “of said complaint) the territory shall in law be deemed, and “be taken to be included in, and shall be a part of said corporation,” etc. It will thus be seen that the annexation is. to take place, unless a complaint be filed ; or if a complaint filed should be dismissed. In the former case, the annexation is effected by operation of the statute, regardless of the action of the court; in the latter the action of the court is presumed to arise on and be directed to the complaint. Inasmuch as the proceedings must, as nearly as possible, mutatis mutandisy conform to those prescribed by the 35th, 36th and 37th sections, it follows that the court in dismissing, or refusing to dismiss, any complaint against annexation, should consider and determine whether under the circumstances it be right and proper in the judgment and discretion of the court, that the petition for annexation should be granted.
All these are obviously proceedings of a political nature, having for their object the promotion of the prosperity of the inhabitants of thickly settled localities and their better government. The counties, as political organizations, have an interest, in the matter-, as well as the State herself. It concerns them, as such, on the one hand that the citizens should have all the aids afforded by local organizations, to increase the numbers, of the inhabitants, promote their comfort, facilitate their business and apppreciate the value of real estate, all of which go. to the augmentation of the county revenues ; and, on the other-hand, that no portions of her citizens may, under pretence of' the necessity of municipal organizations, withdraw themselves, from the general police powers of the counties, with regard, to roads, bridges and other matters conceded to these corporations within their limits.
The very nature of the subject matter, as well as the anomalous character of the proceedings, distinguish cases like this, from ordinary suits between parties, or claims against counties,, in which courts have no discretion, but are subject to rules of law regulating rights. The provisions for organizing towns, etc., are rather ancillary to the governments of the State, and. counties, than acts for conferring or protecting private rights. No particular inhabitants have a vested right to come into, or remain in any town organization, or being in to go out; nor has any town a vested right to compel others to come in. This whole matter, with the power of taxing them, is under the sovereign control of the Legislative body, subject only to constitutional restrictions. It might have made the creation and enlargement of towns depend upon other formalities than the assent of the County Courts, or might organize them directly, perhaps, but where it has made the assent and judgment of the County Courts necessary, it must be presumed that it was for a wise purpose, and the policy of the act should not, without strong reason, be overlooked or thwarted.
Whilst the court is of opinion that an appeal lay in the case, yet we think it should be distinguislied from ordinary suits, or judicial proceedings. The appeal is useful to correct any improper action of the County Court, such as an abuse of discretion, or irregularity of its proceedings, or mistake of law resulting in prejudice to public or private riglits. It is evident that the act for hearing all appeals de novo, although broad enough to cover cases like this, was not framed with a view to them, but to ordinary suits in the Probate Courts, or claims aginst counties, in the County Courts. It is very doubtful whether the Legislature meant to so interfere with the discretion of the County Court in a political matter, as to put it under the entire control of the Circuit Court, without any showing of abuse or mistake. Tliis should always be a grave matter of consideration, and the Circuit Court, in cases like this, should hesitate to interfere with the judgment and discretion of the County Courts, when fairly exercised, without any fraud or manifest mistake as to the law of the case, upon the facts presented. That is to say : where the County Court has fairly understood the law, considered the facts, and exercised
its discretion upon a view of tbe fitness and propriety of the proposed matter, as affecting the interests and convenience of the public, its action then should have, not the technical, but much of the persuasive force of a political question finally determined.
This would have been the positive duty of the Circuit Courts, under the old practice, on appeals from the Probate and County Courts, and no trial de novo would have been proper unless it had been first ascertained that there had been material error ■of law or fact.
But the language of Sec. 1195 of the Digest is so direct and ■comprehensive that we cannot avoid the conclusion that in this •case it was not only the duty of the Circuit Judge to hear the matter de novo, but in doing so, to exercise the same discretion which the County Court might have done originally. There is no middle ground which, as a matter of law, can be securely taken, which would impose it upon the Circuit Court as a matter of positive duty, to regard the view taken of the matter by the County Judge, any further than as the same may be persuasive.
Having this jurisdiction of the cause, and being clothed with this discretion, did the Circuit Judge err in dismissing the complaint or remonstrance? By force of the statute the annexation follows the vote of the city, and the proper formal steps prescribed to be taken in the County Court, unless there be a complaint filed against it and sustained. The vote of the town makes a prima facie case as to the propriety of the annexation. The onus of showing cause against it sufficient to satisfy the judgment of the County Judge, was upon the remonstrants. The only reason they alleged was that it was against their will, and that they had not been consulted.
This was not a valid reason. The power of the Legislature' to include, or cause to be included, in such municipal corpora tions, any portion of territory, with its inhabitants, and to subject them to taxation for municipal purposes is too well settled for further discussion. The whole matter has been gone over in the case of Eagle et al v. Beard, etc., decided at the present term of this court, and this may be done wholly irrespective of the will or consent of the persons incorporated-It is not taking property without compensation, but subjecting it to public burdens for the compensation presumed to result from the benefits of the corporation.
We do not know what affidavits, or other evidence, were presented to the County Court. The petition, as appears-from the record, was refused, and the remonstrance sustained,, expressly, and only, because it appeared that the remonstrants constituted a majority of the freeholders and property owners residing in said territory sought to be annexed. It does not appear what the judgment of the court would have been upoa the facts, or that the court meant to exercise any discretion based upon views of State or county policy. Its decision rested upon a view of the law, obviously-erroneous, and which precluded any exercise of discretion. It was never called into' action, and the matter passed to the Circuit Court, to be heard as an original cause.
Evidently, the evidence presented to the Circuit Court, with the accompanying map, makes a weak case for the annexation of the outside territory, if the onus of showing the necessity of it had been upon the town. But it is not inconsistent with the evidence to suppose that it was a matter of propriety and public convenience. It is sufficient here to refer to the sentiment of the evidence in the former part of the opinion.
The remonstrants should have shown that the thing proposed ought not to have been done, by facts and circumstances from which the court could judge of its injustice The proof is all very vague and indefinite. What would be the return and ■extent of the burdens imposed upon the proposed territory? What would prevent them from receiving the full benefits of Incorporation in as full a degree as other portions of the city? How many inhabitants were there? How many houses and how distributed? These and many other important considerations, are left, in a large degree, to inference and conjecture. That a large portion was open ground, about fifty acres, is a very important fact; and raises a serious doubt as to the propriety of the incorporation, as proposed. Yet it is not conclusive, without further explanation ; showing that it was of such a nature or so situated, as not to be really proper for city ■objects — or that the real object of incorporating it was to ■acquire the right of taxation without compensatory municipal-■advantages.
Looking at the whole matter, and considering that the onus was on the remonstrants, we cannot say that the Circuit Judge •abused his discretion. The proceedings have been in accord■ance with law, and if the territory has been improvidently added to the town of Fort Smith, the remedy is in the Legis-1 ature alone.
Judgment affirmed. | [
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Moore, S. J.:
This suit was brought in the Pulaski Chancery Court to the spring term, 1877, by O. K. Badgett against W. J. Mitchell and Eletcher & Barron.
The object of the suit was to obtain a decree against Mitchell for a balance of f 600, claimed as due for rent of land, and against Eletcher & Barron to compel them to account for the proceeds of certain cotton the produce of the land, alleged to have been received by them from Mitchell, and on which Bad-gett claimed to have had a lien for his rent.
The material allegations of the bill are : That O. K. Badgett, and one N. H. Badgett entered into a written contract with Mitchell on the 7th day of April, 1876, whereby they leased, to him certain land for the year 1876, for which he was to pay $900, as rent, for which amount he executed his note due and payable on the 1st day of November, 1876. Mitchell joined, in and signed this contract, which inter alia, contained these-words, after referring to the note for $900: “And a lien is; hereby given and retained upon the crops grown upon said, land for the year 1876.”
Mitchell farther bound himself in the contract, not to remove or dispose of any part of the crops until the note had been paid, or the consent of the lessors obtained, except six bales of cotton which the contract expressly permitted him to remove and dispose of.
There were stipulations, also, of a minor character relating to the building of a cabin, and putting up and making rails on the land, etc.
Mitchell was also to be allowed a deduction for any overflow of a portion of the land, not to exceed three acres, at the rate of $9 per acre.
The contract was duly signed and properly acknowledged by all the parties, O. K. and N. H. Badgett and Mitchell, on the day of its execution.
It was not filed for record till the 7th day'of October, 1876.
On the day of the execution of the note and contract, an endorsement was made on the note whereby it was agreed that half the amount of the same should be paid November 1st, and half, December 1st, 1876, and on the same day N. H. Badgett, by endorsement on the note assigned all his interest therein to O. K. Badgett, who consequently sued alone.
The bill charges that during the months of September, October and November, Mitchell, without the permission and against the protest of Badgett, removed and disposed of the greater portion of the crop, whereby it was lost to him, and that the sum of $600 remained, due from Mitchell after allowing him all credits for improvements, overflowed lands, etc. That after diligent search all the cotton that could be traced up was eleven or more bales that had been sold and delivered by Mitchell to Fletcher & Barron, and which were received by them with a knowledge of Badgett’s rights, and appropriated by them on a debt due to themselves.
Sundry intoi-rogatories were propounded to all the defen dants, and tho bill prajm for decree against the defendants for the amount that may be ascertained to be due, and that the proceeds of the cotton in the hands of Fletcher & Barron be declared and made subject to the lien of Badgett in respect to his debt, and for general relief.
Fletcher & Barron answered, denying all knowledge.or notice of Badgett’s lien on the crop of Mitchell, and ayer that Badgett never protested against nor forbid Mitchell selling or removing the crop, though they do not aver he knew of the sale of any of the cotton to them. They admit that they purchased fifteen bales of cotton from Mitchell, during the months as charged in tho bill, which they supposed was raised on the Badgett plantation, and in response to the interrogatories they file an account of the same, showing the dates and amounts, and prices paid.
They allege that they are merchants in the City of Little Eock, and engaged largely in buying cotton ; that they bought tho cotton in question from Mitchell in tho regular course of business, and at regular market prices; that they furnished supplies to Mitchell to make his crop, and that on the 17th day of June, 187(5, he executed to them a mortgage of his corn and cotton crops to secure advances already made and to be made to him.
This mortgage was filed for record on the 24th of October, 187(5, which, as will be seen, was after the contract between Badgett and Mitchell had been filed.
Mitchell also answered the bill. He admits the execution of the contract with and the note to Badgett. He denies that Badgett was ignorant of his removing and disposing of his crop, and further, he denies any intention or desire to defraud Badgett, and sets up his mortgage to Fletcher & Barron given to secure indebtedness for supplies, and avers that believing he would have enough to pay his rent and the amount due for supplies, and being anxious to pay off Fletcher & Barron as soon as possible, he from time to time sold and delivered to them fifteen bales of cotton. That contrary to his expectation his crop fell short, and that after the sales to Fletcher & Barron, a garnishment and attachment was issued against him from the United States court on a judgment against hi. H. Badgett, and the balance of his crop seized thereunder. By this proceeding his crop was much wasted. The cotton and corn which was seized, was afterwards released by the United States Marshal and turned over to O. K. Bad-gett, and by him credited as a payment on the rent.
It is proper to state that previous to filing the answers, a general demurrer was filed to the complaint which was overruled.
Demurrers were also filed to the answers but they seem to have been abandoned, as the case (as the transcript shows) was heard and decree rendered on the bill, answers and depositions.
The evidence is voluminous and much of it entirely foreign and irrelevant to the issues.
The following seems to be clearly established by the proof:
Mitchell, early in the year 1876, rented the land by written lease from N. II. Badgett, and whilst his tenant, he worked on houses, etc., to the value of $20, and in making fences to the value of $75, and he claimed that he should be allowed these amounts as a credit on his rent. O. K. Badgett, in his testimony, denies all knowledge of or responsibility for this claim for credit. O. K. Badgett purchased the land from N. H. Badgett and wife in February, 1876, and filed his deed for same for record on the 7th of that month.
On the 7th of April the contract of lease, etc., referred to in the bill was executed, and the lease first made between N. H. Badgett and Mitchell was cancelled and destroyed.
The only payments on the rent that are proven to have been made since the date of this last contract, are $65 in cash, $183.95 received from the United States Marshal, and $27 deducted on account of the overflow of three acres of the land.
There is some evidence tending to show that, after the new lease was executed, O. K. Badgett agreed verbally, to allow Mitchell $95 for work done whilst he was in possession under the first lease from N. H. Badgett. The new lease, however, 'having been reduced to writing, and the old one cancelled, pa-rol evidence, in the absence of fraud, or mistake, which is not charged nor proved, could not be regarded to vary the terms -of the new lease.
The evidence tends to establish clearly that Fletcher & Barron, when they gave credit to Mitchell, knew that he. was a •tenant on Badgett’s farm. Their mortgage, which is made an ■exhibit to their answer, describes the land on which the crop was growing, as being part of “what is called the N. H. Bad-igett place, in Pulaski county, etc.”
Their place of business’and the residence of the Badgetts was in the city of Little Bock, and it is in proof that they were acquaintances and occasionally held conversations on business matters. They had constructive notice of O. K. Badgett’s ownership of the land by the recording of his deed to the land i©n February 7, 1876.
On the hearing, the Chancellor decreed the defendant, Mitchell, personally liable to Badgett in the sum of $600 — the credits allowed not reducing the amount of the rent note below that .sum — with interest at the rate of 6 per cent from January 1, 1877, and that he be ordered to pay that sum, and that execution issue,
Also decreed that Badgett had a lien on the proceeds of cotton in the hands of Fletcher & Barron, to the extent of '$429.53, with interest at 6 per cent from January 1, 1877. This amount is arrived at by allowing them to retain the proceeds of six bales of cotton, which Mitchell was authorized to-sell by the terms of the contract of lease, and charging them with the proceeds of the balance of the fifteen bales received from Mitchell, making an average of the value of all the bales from the prices as shown by the account of same filed by Fletcher & Barron.
The decree further provides that if the debt due from Mitchell be not-paid nor made by execution against him, that execution issue against Fletcher & Barron for any deficiency to the extent of $429.53.
The costs were imposed primarily on Mitchell,-aiid if not collected on execution against him, ordered that they be imposed on Fletcher & Barron, and included in any execution against them.
Defendants all appealed.
The questions presented for determination are not numerous> nor very difficult of solution.
We are first to inquire, what is the nature and force of the contract of April 7, 1876, executed by Mitchell and Badgett? for it is by virtue of that instrument only that the appellee, must prevail, if at all.
It is not claimed by the bill, nor in argument, that appellee-has any right to recover under the statutory lien of the landlord — by which he might have attached Mitchell’s crop on his attempting to remove it — in the absence of this contract. Though he seems to have known of the crop being removed,, when he could not stop it by request or protest, he chose to-depend upon such lien and rights as he might have by his contract.
That this contract has none of the characteristics of a mortgage, is insisted and earnestly and ingeniously maintained by counsel for appellants.
Wo are referred to the case of Barnett et al. v. Mason et al., in 7 Ark. Rep., as directly in point.
In that case the instrument by which a lien was claimed was. a bill of sale of a steamboat, executed only by the vendors,, and in which they used language very similar to that in the contract in this case, viz. : “they (the vendors) are to retain a, lien,” etc., for the unpaid purchase money. This court say in passing on the instrument, that this phrase, as used there, “is a mere suggestion of the vendors, no stipulation, and was entirely nugatory,” and add that “ even supposing the plaintiff' had a lien on the boat, they lost it forever when they parted, with its possession.” There the instrument was not given by the vendee, was neither acknowledged nor recorded, and the-benefit of the lien was claimed in an action of detainer, and. the poesession of the boat having been parted with, the court correctly decided that in such a case they could claim nothing-by their supposed lien.
The case of Roberts et al. v. Jacks, in 31 Ark. Rep., is also-cited and relied on by appellants.
In that instance there is simply the statement made in a promissory note that the amount of the note was a lien, etc., and the court say: “ It is certainly not a contract, no undertaking- or agreement, * * * but simply the declaration of the effect of a contract made.” Unquestionably, this was right. If such a statement in a promissory note could create a valid, lien, where would be the necesshy for ever taking a mortgage-to secure a note, or the necessity or value of ever recording-any instrument?
Other cases are referred to by appellants, but on close examination they are all found to rest or turn on some particular circumstance and facts, and to be totally different from the case at bar.
Here we have a formal written instrument executed by both. parties, the lessors and the lessee, and duty acknowledged at the date of its execution by all the parties to it, and afterwards • duty recorded ; an express lien is reserved by the one and given by the other party.
It is unquestionably a lease to Mitchell; is it a mortgage from Mitchell ? In addition to the express lien given and reserved, it contains this clause: “ No part of which (the crops) shall be removed or disposed of in any way by the party of tile second part (Mitchell) or his agents until said note has been paid or the consent of the said party of the first part (Badgett) obtained.”
Herman, in his late work on Chattel Mortgages, p. 68, says : ‘“Leases, with conditions, are mortgages. Any condition in a lease giving the lessor a lien upon the tenant’s property as ■“ security for the rent, is a chattel mortgage. * * * So a ’“written agreement, property executed, stipulating that the ‘ ‘ amount due for rent of laud should be paid before the crops •“ are removed, is a mortgage- of the crop.”
The same doctrine is asserted in Johnson v. Crofoot, 53 Barbour (N. Y.), p. 574. It is there held that a lease providing "that the lessor was to have full title, with the privilege of taking possession of the produce of the farm in payment of •any balance due on rent, was a chattel mortgage, and if not re-morded, was invalid as against an attaching creditor of the lessee.
The case under consideration falls distinctly within the doctrine above announced. The instrument here is not only a lease with a condition, and containing a stipulation that the crop -should not be removed till the rent was paid, but it is also executed by the lessee, and duty acknowledged by him. It is to -all intents and purposes a chattel mortgage.
And now, having decided the contract to be in effect a mort,-gage from Mitchell to Badgett, we are next to inquire, how are 4he other defendants, Fletcher & Barron, affected by it?
That they had a valid mortgage, also from Mitchell, is not disputed. Badgett’s mortgage, whilst of course it is binding and conclusive as against Mitchell, without being recorded or even acknowledged, could only affect Fletcher & Barron, or any other third party, from the date of its being filed for record.
Both appellant and appellee were extremely negligent in regard to recording their mortgages. Appellee may have considered his as only a cumulative or additional security to his statutory lien as landlord, and not regarded it as all important until hé found the crop was being removed. Having filed it, however, prior to that of Fletcher & Barron, his rights were preserved.
All the circumstances, as well as the proof, tend to show that Fletcher & Barron g*ave credit to Mitchell, knowing that he was the tenant of appellee. This alono was enough to advise them that, as landlord, he would have a statutory lien on the •crop of Mitchell, and sufficient to put them on inquiry as to the amount he would be due to appellee, and the extent and exact nature of the lien.
Having a valid subsisting mortgage lien on the crops of Mitchell after the cotton was removed and disposed of, appel-lee had the right to follow and recover the property or its value from Fletcher & Barron, who received it with constructive notice of appellee’s lien by the filing of the mortgage or contract for record.
They were affected with a trust upon every pai’t of the cotton which they received after the filing of appellee’s mortgage for record, except enough to make the amount of six bales, which Mitchell was authorized to dispose of. ’
This principle is elementary. Herman, p. 345, states the general doctrine in few words, as follows : “A mortgagee may “recover the propert3r, or its equivalent in whosesoever hands “ it may be at the time he is entitled to it, for the purpose of “ satisfying his debt.”
See also Grouler v. Asseler, 22 N. Y., 225; Duke v. Stickler, 43 Ind., 494.
There is nothing in the evidence to lead to the belief that the appellee, by any act of his, ever waived his lien and rights acquired under it, or estopped himself from asserting his lien rights. The evidence nowhere shows that he was ever present, or had any actual knowledge of the sale of any of the cotton, when made to Fletcher & Barron, or that he' did or suffered any other act that would amount to an estoppel.
The calculation by which the Chancellor in the court below arrived at the amounts specified in the decree seems to be correct, and warranted by the pleadings and "evidence.
Finding no error in the ■ decree of the Pulaski Chancery Court, the same is, in all things, affirmed.
Hon. J. R. EakiN, J., did not sit in this case. | [
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TURNER, S. J. :
The plaintiffs on behalf of themselves and others interested,, state that they reside in the city of Little Rock and severally carry on the business of Real Estate Agents in said city: that their business is to buy and sell lands for others ; to rent out real property, and to collect the rents on the same, and pay-taxes, and does not extend beyond these objects.
That on the 6th day of January, 1876, the defendant by resolution defining the terra “broker” declared that every person or firm who 1 raj's or sells scrip, bonds or exchange, pays taxes at a discount or profit, shall bo considered a broker, and shall pay one hundred dollars per annum, in currency, in advance, and that any person violating its provisions shall be fined in each and every instance twenty-five dollars, as will appear l^ reference to the resolution exhibited with and made part of the complaint.
That on the 26th day of December, 1876, the defendant passed an ordinance for the better regulation of licenses in the city of Little Rock for the year 1877, which provides, among other things, that it shall be unlawful for any person to exercise or pursue any of the following avocations without first having obtained a license therefor, from the proper city authorities, and having paid for the same in gold, silver or United States currency ; each money broker, land broker, tax broker, exchange broker or other brokers or bankers, one hundred and twenty-five dollars per year, in advance ; providing also penalties for carrying on either of said pursuits, as appears by a copy thereof exhibited with the complaint. The plaintiffs say they buy and sell lands and pay taxes for others for a commission or compensation, but they say they are not brokers in the legal sense of the word, and that the said tax, as attempted to be imposed on them, is wholly illegal; and yet, they say, that the defendant, by her ‘agents and officers, is endeavoring to make them pay said illegal tax by arrest and imprisonment, which they say is without any legal sanction whatever, and that plaintiffs believe that the defendant will proceed to enforce the payment’ of said taxes if not restrained from doing so by this court. Wherefore plaintiffs pray that the said defendant and her agents and officers may be enjoined and perpetually restrained from levying and collecting the said tax.
On the 11th January, 1877, the defendant filed a demurrer to the complaint, which demurrer was overruled. Whereupon the court granted a temporary injunction and restraining order-in conformity to the prayer of the complaint.
On the 26th day of June, 1877, the defendant filed her response to the complaint, admitting the passage by the city council of the city of Little Rock, of the ordinances and resolutions exhibited with the complaint, but alleging that under-section 12 of an act of incorporation, passed and approved March 9th, 1875, she has full power and authority to pass such an ordinance, and that the same is now in full force in pursuance of said authority.
Defendant denies that the sole business of the plaintiffs is-to buy and sell lands for others, to rent out real estate and to-collect the rents, and to pay taxes for others ; and defendant-charges the truth to be, that they are, each and every one of' them, in addition to, and in connection with the said real estate-business, either money brokers, scrip brokers, tax brokers, exchange brokers or bankers, under the provision of section 16; of said city ordinance above referred to, and that all of said parties buy and sell scrip, both city, State and county, as brokers, having offices for such purposes, and that they pay taxes-on lands at discount as land brokers, so advertised to the public ; that they sell lands on commission at certain fixed rates as land brokers, and that they so hold themselves out to the public.
Wherefore, defendant says that she ought not to be enjoined from enforcing the collection of said license tax by said ordinance provided for. Because, she says : the said parties are engaged in a privileged kind of business, which the defendant has, by the general and special laws of Arkansas, the right,, power and authority vested in her to tax and license, and that the same is a fixed and important source of her yearly revenues, by which she is enabled to take care of the property and the rights of the inhabitants thereof ; therefore prays that the temporary injunction heretofore issued may be dissolved, etc.; and plaintiff demurs to the complaint for the following reasons :
1st. That this court has no jurisdiction of the subject matter of the complaint.
2d. That the same does not set up facts sufficient to authorize the granting of the relief; and
3d. Because there is no equity in the complaint.
The depositions of a number of witnesses were taken and read on the hearing of the cause.
John Ingram, one of the plaintiffs, stated, that he was a real estate agent, carrying on business in the city of Little Rock at this time; has been engaged in that business since March, 1875 ; that his principal business was furnishing abstracts of title, looking up homestead lands, and keeps lands on sale ; has sold some town property, but not within the last two years. Has not been engaged in selling personal property for others. Has not been engaged in selling bonds, notes or other commercial securities. Has not been engaged in any brokerage business. Has real properly on sale. When parties apply for certain class of lands, witness takes the description and supplies them with it if he can find a piece to suit, charges a regular fee, but not a commission. It is part of his business to negotiate sales of lands for private individuals, in which he charges in accordance with the services rendered.
David Reeve, one of the plaintiffs, stated that he was doing business in the city of Little Rock, principally paying taxes for others, and also deals in scrip, rents property, collects rents, and offers to sell lands for others, but has sold none during the past year. Has been in the business about four years. The scrip that ho buys and sells is on his own account, or on account of his firm. He is of the firm of Reeve & McCabe. They have attempted to negotiate the sale of real estate in a few instances, for other parties, but have not made a single sale. They pay taxes to a considerable extent for others, pay the taxes at a discount from the face of the tax receipt. Think that 203 loans for other parties, based upon collateral security, have been arranged in their office, but that they make no charge for this. It is no part of their business to negotiate loans.
The advertisement of their business, published in the Little Rock Gazette, is as follows :
“ Real Estate and Tax-paying Agency. D. Reeve, M. D. “McCabe. Reeve & McCabe, Real Estate and Tax-paying •“agency, 106 West Markham street, Little Rock, Ark. Buy ■“ and sell scrip and bonds of all kinds ; pay taxes and licenses ■“ of all kinds at the lowest possible rates ; also, rent, lease or “ sell property on the most reasonable terms.”
The sign, at their door, is marked Real Estate Agents and Brokers. D. Reeve.
S. N. Marshall, one of the plaintiffs, stated that his business is principally insurance, also does something in real estate and paying taxes. In real estate he proposes to buy and sell •on commission. Doesn’t buy or sell for others any scrip or bond, or other securities ; pays taxes at a discount from the face of the receipt. Has been engaged in this business five or six years ; has never negotiated a loan, nor attempted to do so for others. In one or two cases where he was personally interested to make collections, he found out where the money could be loaned and it was done, and he made his collection out of it ; where these'loans were made ho received no commission.,
J. H. Haney, one of the plaintiffs, stated that his business was that of real estate agent. That includes principally payr-ing taxes, collecting rents and selling lands, and business in the land office in Little Rook. Buys scrips for the purpose of paying taxes. Pays taxes for others and charges a commission therefor. Does not hold himself out as a broker.
J. H. Barton, one of the plaintiffs, stated that his business was that of real estate agent. Buys and sells real estate in Little Rock and throughout tire State. When he sees an opportunity to buy real estate cheap he purchases to sell again. Pays taxes for others, which is part of his real estate business. Has been carrying on the business about eight years in the same maimer. In buying and selling real estate he does not buy for others. lias in his possession lists of lands for others which he endeavors to sell. Charges a commission for selling real estate. Agrees to pay taxes at a fixed sum less than the face of the receipt, the discount being controlled by the value of the scrips at the time. Purchases the scrips himself for the purpose of paying such taxes.
And this was all the evidence in the cause.
The demurrer to the complaint was overruled by the court and on the final hearing of the cause the injunction was made perpetual, and the defendant appealed to this court.
The jurisdiction of the court of chancery in this cause, we think, is unquestionable. Eor although there may have been a remedy at law, and wo think there was, the Legislature, by the Act of 1873 to amend the Code of Practice in civil cases, in express terms, confers the jurisdiction in question.
Section 29(> of that Act declares : “That the Judge of the Circuit Court for any county, may grant injunctions and restraining orders in all cases of illegal or unauthorized taxes and assessments by county, city, or other local tribunals, boards or ■office rs.
And this provision of the Act of 1873, is strongly fortified by Art. 1(5, Sec. 13 of the Constitution of 1874 which provides, “That any citizen of any county, city or town may institute suit in behalf of himself and all others interested, to protect the inhabitants thereof against the enforcement of any illegal exaction whatever.”
In order to carry out and make effective sec. 12 of the Act. of 1875, the City Council of the City of Little Rock, on the-26th of December 1876, passed an ordinance for the better-regulation of licenses in the City of Little Rock, which, among-other things, ordained that it shall be unlawful for any person to exercise or pursue any of the following avocations or business, to-wit: money broker, land broker, scrip broker, exchange broker or banker, without first having obtained a license-therefor from the proper city authorities and having paid for the same in gold, silver or United States currency $125 per year in advance ; and further provided that any person exercising any of the privileges for which a license is required without first obtaining the same, shall be fined in any sum from two to-twenty-five dollars for the first offense and double that amount for subsequent offenses.
See oi’dinance sec. 16 and 34.
These avocations and pursuits are not within the scope of' State taxation for State purposes, for in such cases the taxes, must be uniform and according to the value of the property taxed, but they are subjects of police regulation, and if licensed at all, it is done in the exercise of the police power, which is deemed necessary and proper for the government and well-being of all municipal corporations, and in such cases, these avocations and pursuits are licensed and not taxed as property.
What are called police powers relate mostly to the government of municipal corporations’
Of this nature is the authority to suppi-ess nuisances, preserve health, prevent fires, to regulate the use and storage of dangerous articles, to establish and control markets and the-like.
And it may here be observed ‘that every citizen holds his property subject to the proper exercise of this power either by the State Legislature directly, or by public corporations to. which the Legislature may delegate it; and although laws and regulations of this character may disturb the enjoyment of individual rights, they are not unconstitutional, though no provision is made for compensation for such disturbance. They do not appropriate private property for public use, but simply regulate the use and enjoyment of it by the owner. The citizen owns his property absolutely it is true ; it cannot be taken from him for any private use whatever without his consent* nor for any public use without compensation, but he owns it subject to this restriction ; that it must be so used as not to-injure others, and that the soverign authority may by police regulations so direct the use of it that it shall not prove pernicious to his neighbors or the citizens generally. Sec. 1, Dil. Mun. Corp., sec, 93, and marginal references.
The matters enumerated in section 12 of the Act of 1875,. including those enumerated in section 16 of the ordinance of' 26th December, 1876, are the propei subjects of police regulation, and as such, may be licensed under thejauthority of the-municipal government.
The authority of the Legislature to regulate the exercise of privileges or the following pursuits and occupations does not fall properly within its taxing powers, but within its police-powers. Pursuits that are detrimental may be prohibited, altogether, or licensed for a compensation to the public. So-persons desiring to exercise privileges or engage in callings really useful to society, may be required to obtain license, and pay a reasonable compensation therefor: Such as the keeping; •of ferries, draymen, hackmen, and even persons who furnish, moat and broad to communities. Cooloy on Con. Lim., 200.
The power of the corporation of Little Rock to license brokers and to require the payment of a fixed sum for the privilege of carrying on the business of broker, we think, is clearly granted by section 12 of the Act of March 9th, 1875, -and the authority for this grant may be found in section 23, article 11, of the Constitution of 1874, which provides that The State’s ancient right of eminent domain and of taxation is herein fully and expressly conceded, and the General Assembly may delegate the taxing power with the necessary restrictions to the State’s subordinate political and municipal corporations to the extent of providing for their existence, maintenance and well being.”
The plaintiffs stated that they resided in the city of Little Rock and severally carry on the business of real estate agents in said city.. That their business is to buy and sell lands for others, to rent out real property and to collect the rents and to pay taxes for others, and that their business does not extend beyond these objects.
The depositions read at the hearing fully sustain the allegations of the complaint, enlarging it is true, somewhat, the operations of the plaintiffs and being more precise in description, and in one instance, that of Reeve & McCabe, it is •shown that the sign of ‘•'■Real Estate, Agents and Brokers ” appears at the door of their office
What then and who is a broker in the legal acceptation of the term ?
■ Lord Ch. Baron Comyxs, of the Court of Exchequer, "in his Digest of- the laws of England, defines brokers to be “persons employed among merchants to make contracts .between them and fix the exchange for payment of wares sold -or bought.” See 5 Oomyns’ Dig. 78.
Burrill, in his law dictionary published about thirty years-, ago, describes a broker as “one who makes a bargain for-another and receives a commission for so doing.” Tindall,. C.J. J., Bing. 702, 706. An agent employed among merchants and others to make contrae! s between them in matters of trade, commerce or navigation, for a commission commonly called brokerage, Russrll on factors 3, 4. See also Story on Agency. A broker is not in general authorized to act or con-, tract in his own name, nor is he entrusted with the possession of what he is employed to sell, or empowered to obtain possession of what he is employed to purchase; but he acts merely as a middleman or negotiator between the parties and in those respects he is distinguished from a factor. 2 B. and Ald. 137, 143. Russell on Fact. 4. 2 Kent Com. 622.
“The earliest definitions of this term (broker) confine the employment of brokers to dealings between merchant and merchant. Thus by the Statute 1 Sec. 1 Oh. 21, brokers are described to bo persons employed by “Merchants English and Merchants strangers in contriving, making and concluding bargains and contracts between them, concerning their wares and merchandizes and moneys to be taken up by exchange between such merchants and merchants tradesmen.” Russell on Fact.
Those definitions, however appropriate at a period when merchandize and exchange brokers appear to have constituted the only classes of this description of agents, have been very properly regarded by modern writers as too limited to include the various classes of brokers recognized at the present day; although in a late case in England the Court of Exchequer-seemed disposed to abide by the ancient interpretation of the term.” Sec. 16, Meeson & Wellsby 174, See Burrill’s Law Dict. 229.
Bouvier says, that brokers are those who are engaged for others in the negotiation of contracts relative to property with the custody of which they have no ¿concern. Paley’s Agency, 13.
A broker is for some purposes treated as the agent of both parties ; but in the first place he is deemed the agent only of the person by whom he is originally employed, and does not become the agent of the other until the bargain or contract has been definitely settled as to the terms between the principals.” Payley’s Ag. Lloyd ed. 171 note p. 18 Met. (Mass.) 463.
Bill and Note Brokers negotiate the purchase and sale of bills of exchange and promissory notes.
Exchange Brokers negotiate bills of exchange drawn on foreign countries or on other places in this country.
Insurance Brokers procure insurance and negotiate between insurers and insured.
Merchandise Brokers negotiate the sale of merchandise without having possession or control of it as factors have. This is the original broker as defined by the earlier law writers ; now mentioned simply as a class of brokers.
Pawn Brokers lend money in small sums on the security of personal property.
Real Estate Brokers. Those who negotiate the sale or purchase of real property. They are a numerous class, and in addition to the above duty, sometimes procure loans on mortgage security, collect rents, and attend to the letting and leasing of houses and lands.
Ship Brokers negotiate the purchase and sale of ships and the business of freighting vessels. Like other brokers they receive a commission from the seller only.
Stock Brokers. These are employed to buy and sell shares of stocks in incorporate companies and the indebtedness of governments. Bouvier’s Law Diet., 224.
Webster defines a broker as :
1. One who transacts business for another ; an agent.
2. An agent employed to effect bargains and contracts as a middle man, or negotiate between other persons for a compensation commo.ily called brokerage. He takes no possession as broker of the subject-matter of the negotiation. He generally •contracts in the names of those who employ him, and not in his own.
Broker, simply so called, one who sells or appraises household furniture destrained for rent.
Bill Broker, ono who buys and sells notes and bills of exchange.
Bxchange Broker, one who buys and sells uncurrent money and deals in exchanges relating to money.
• Bisurance Broker, one who is agent in procuring insurance on vessels or against fire.
Merchandise Broker, one who buys and sells goods; one who advances money at interest upon goods taken in pledge.
Beal Estate Broker, one who buys and sells lands and obtains loans, etc., upon mortgage.
Ship Broker, one who deals in buying and selling ships, procuring freight, etc.
Stock Broker, one who deals in stock of moneyed corporations and other securities. Cites McCulloch, Wharton, Simmons, New Am. Cyclo. See Webster’s Diet. Eng. Lang. p. 167.
We may thus see that the ancient definition of broker has been enlarged and extended greatly beyond its original limits.
Instead now of being confined, as in the time of Chief Baron Comyn, to “persons employed among merchants to make contracts between them and to fix the exchange for payment of •wares sold or bought,” it is extended to almost every branch of business, and this as a necessity growing out of the increas ing exigencies of commercial business. In its modern and enlarged signification it embraces the buying and selling, and dealing in real as well as personal estate, and may as well, we think, include real estate agents as persons employed among merchants to make contracts between them and to fix the exchange for payment of wares sold or bought.
Looking at the distinctive character of a broker as a middleman and agent for the sale of property and the transaction of business for others, we fail to see any reason in principle why the dealer in real estate for others may not as legitimately be called a broker as a person employed to make bargains and contracts in matters of trade, commerce or navigation.
So we find that real estate brokers “or persons who sell real estate for others,” are often called simply “brokers.”
In the case of Pierce v. Thomas and others, 4 E. D. Smith’s N. Y. R., the plaintiff, a broker, sought to recover commissions fr'om the defendants for the sale of certain real estate, without showing an employment to sell, or such an adoption of his acts or acceptance of his services by the owner as is equivalent to an original employment. The court, by Wood-ruff, J., said: “To entitle a broker to recover commissions for effecting a sale of real estate it is indispensible that he should show that he was employed by the owner (or on his behalf) to make the sale. A ratification of his act, where original employment is wanting, may, in some circumstances, be equivalent to an original retainer, but only when there is a plain intent to ratify.
In the case of McGavock v. Wodlief, 20 How. U. S. Sup. Ct., 221, the court, in deciding that a broker who negotiates the sale of an estate is not entitled to his commission until he finds a purchaser in a situation and ready and willing to complete the purchase on the terms agreed upon between the broker and the vendor, uses the following language: “The- broker must complete the sale; that is, he must find a purchaser in a situation and ready and willing to complete the purchase on the terms agreed on before he is entitled to the commission. In this case the event speaks of the person employed to negotiate the sale for another simply as a “broker
In the case of Farnsworth v. Hemmer, 1 Allen (Mass.). 494, which was a suit by a real estate broker to recover commissions for his services in negotiating an exchange of land between the defendant and one Cooper. Here also the real estate broker is simply styled a 1 broker F
In the the case of Glentworth v. Luther, 21 Barb. 145, "which was an action by the plaintiff to recover his commission as a broker for negotiating the sale of a house and lot in the City of New York, Cowles, J., said: There can be no doubt as to the extent of the duties to be performed by one who as. broker is employed to sell real estate. In the nature of things he cau do nothing more than find a party who will be acceptable to the owner and ente]* into a contract of purchase with him ; unless the owner makes him more than a broker merely, by giving him a power of attorney to convey the property and then the employee would cease to be merely a broker, and become the attorney. The broker employed to sell real estate is in this case called simply a broker. See, also to the same effect, Doty vs. Miller, 43 Barber, 529. Middleton vs. Findla, 25 Cal. 76. Morgan vs. Mason, 4 E. D. Smith 638. Clapp vs. Hughes, 1 Phil. (Pa.) 382.
So we see that the term broker has long been indifferently applied to those who buy and sell real estate for others, and those middlemen who negotiate.and make contracts between merchants in the interest of commerce, trade and navigation.
At the time of the passage of the act of March 9th, 1875,. and long previously, the modern and enlarged meaning of the word broker, had been accepted and recognized by the courts, as a part of the land, including in this extended interpretation of the meaning of the word broker, not only what are called real estate agents or brokers, but every other description of broker, except perhaps pawnbrokers, who are strickly not brokers at all, not falling within any of the definitions of the term broker.
We are of the opinion that under the power conferred upon the corporation of Little Rock by Sec. 12 of the Act of 1875, it was competent for the corporation to license the plaintiffs as brokers and to require of them to pay respectively the sum mentioned in Sec. 16 of the ordinance of the City Council for the priveledge of pursuing their business as brokers.
Having arrived at this conclusion we are of opinion that there is error in the decree of the Chancellor and we do therefore reverse said decree and remand the cause, with instructions to the Chancellor to dissolve the injunction and restraining order herein, and dismiss the complaint.
Hon. J. R. Eakin. J., did not sit in this cause. | [
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ENGLISH, C. J.
This suit was commenced in the Probate Court of Chicot county, upon the follawing claims :
Estate of Elisha Worthington, Dr., To H. F. DeBardlekin, administrator of David Pratt.
To twenty-five per cent, of the amount of a due bill made by said Elisha Worthington in his life time to Daniel Pratt, for $5,760.00, and which said Worthington promised Mr. T. F. Ticknor, agent, etc., at divers times that he would pay twenty-five per cent, of $5,760.00.$1,440.00.
The claim was authenticated by the affidavit of Henry F. DeBardlekin, as administrator of Daniel Pratt, deceased, made before a justice of the peace on the 14th day of November, 1874.
It was presented by him for allowance to E. T. and J. M. Worthington, administrators of Elisha Worthington, deceased, on the 3d of December, 1874, and by them rejected.
It was filed in the office of the clerk of the Circuit Court on the 15th of April, 1875, and presented to the court for allowance at its January term, 1876, and the court upon the evidence produced by the parties, and without formal pleadings, allowed the claim for $1,440.00 against the estate of Elisha Worthington, and his administrators appealed to the Circuit Court.
At the January term 1877, of the Circuit Court, the case was submitted to the court sitting as a jury, upon depositions and other evidence introduced by the parties, and by the court taken under advisement until the following July term, when the court announced its findings in writing as follows :
‘ ‘ This cause coming on to be heard and both parties being Tepresented by their counsel, and this cause being submitted to the court sitting as a jury, and there being no declarations of law required of the court by either party, but the cause being submitted on the depositions and other evidence in the cause, the court doth find that the defendant’s intestate, after his; discharge is bankruptcy, did make an unconditional promise-to pay plaintiff twenty-five cents on the dollar of the debt barred by his bankruptcy, and that said promise is within the-statute of limitations.
‘ ‘ From the above findings of fact, the court declares the following to be the conclusion of law, viz : That the claim herein is a legal claim against said defendant’s intestate for-the sum of $1,440 with interest thereon from December 3d, 1874,, and that said claim be classed in the 5th class of claims against, said estate to the amount of said sum and interest as aforesaid.”
Judgment was entered accordingly.
The defendants filed a motion for a new trial on the follow--ing grounds:
1. The findings or conclusions of fact are not sustained by-the evidence.
2. The conclusions of law are erroneous.
3. The decision and judgment of the court are contrary to. the law and evidence.
4. Upon the whole case the findings-and judgment of the court should have been for defendants.
The court overruled the motion, and the administratiors of" Worthington took a bill of exceptions, and appealed to this court.
I. It is submitted by the counsel for appellee, that no ques-. tion of law having been reserved in the court below,, there is. nothing for this court to decide, citing State Bank v. Conway, 13 Ark., 344, and subsequent cases in which the ruling in, that case was followed.
In the leading cases cited, the court, after- reviewing the-previous decisions on. the subject, and discussing-the province-of the-jury, or the court sitting as a jury,, to,pass upon the- the facts, the law in reference to the granting of new trials, etc., held that where a party merely excepts to the finding of the court, or jury, setting out the testimony without any motion for a new trial, and without any exception whereby he shall put his finger upon the alleged error of law as to any ruling or decision of the court below, there is no case presented for the consideration of the court, on error or appeal.
In the case now before us, there was a motion for a new trial, and though the court made no declarations of law, none being asked by either party, we certainly can look into the bill of exceptions to see if there was any evidence to sustain the findings of the court, sitting as a jury, and whether, as matter of law, the plaintiff below was entitled to judgment upon the .facts found.
II. The court found from the evidence that after Elisha Worthington had been discharged in bankruptcy, he made an unconditional promise to pay twenty-five per cent upon the note mentioned in the claim sought to be probated against his estate, and that the promise was not bárred by limitation, and declared as a conclusion of law, upon the facts found, that the plaintiff below was entitled to judgment allowing and classing the claim against the estate of Worthington, and rendered judgment accordingly.
It was proven that late in the year 1859, or early in the year 1860, Daniel Pratt sold to Elisha Worthington of Chicot county, Arkansas, twelve eighty-saw gin-stands, at six dollars per saw, or $480 for each stand, making $5,760.00, for which Worthington afterwards executed to Pratt the following note, which is the due bill referred to in the claim sought to be probated.
“$5,760.00, Chicot county, Arkansas, March 6,1862. Due Daniel Pratt, when the blockade is removed, that cotton can be freely .sold .in the market in New Orleans, five thousand seven hundred and sixty dollars, with interest on said sum from the first of January, 1861, til paid. Interest at the rate of •eight per cent per annum.
E. WORTHINGTON.”
It was admitted that Worthington went into bankruptcy in February, 1868, and was discharged 20th of February, 1870.
He died 19th November, 1878, and on the 25th of the same month, letters of administration upon his estate were issued to appellants.
It was admitted that Pratt and Worthington were both residents of this State before and during the civil war, and that the Federal forces captured New Orleans May 24th, 1862. That Worthington never, in writing, made any promise that would take the claim or said due-bill or note out of the statute of limitations if the same was otherwise barred
It was also admitted that the lands belonging to the estate of Worthington, were valued on the tax-book at $32,000.00, and that the account current of his administrators showed a balance in their hands of over $7,000, and that all of the debts probated against his estate had been paid except the claim sued on, and a judgment which had been appealed from, of Martha W. Mason, for $12,000.
As to the promise of Worthington to pay twenty-five per cent on the note; Samuel F. Tichnor, on his examination in chief, deposed, in substance, that as agent of Daniel Pratt, he called on Worthington in the winter of 1868, at his residence, Sunny-Side Landing, and asked him to pay for the gin-stands. He replied that he could not then pay, but would pay, as it was a just debt.
Witness called to see him again in January, 1870, and he then said he had paid a large debt, which he regretted, and had paid some other debts for twenty-five cents on the dollar, and promised that he would pay that amount on the gin-stands ; said that he had some of them on hand, and was using them. At this time he was living near the Lake, on his Red Leaf plantation.
Witness called on him again 18th December, 1871, and he then said that he would pay the twenty-five per cent on the gin-stands, and that witness need not call again. That he thought that he could pay a part of the money that winter, and would either send a check or pay the money over to Esquire Springer. The reason why he thought that he could not pay that winter was, he said, that he had to build a house to live in. He further said to witness : “I am not telling you lies to get rid of you ; that would be very absurd in me, an old man.” He said further, that Pratt had not opposed him in getting his discharge in bankruptcy, and upon the honor of a man that the twenty-five per cent of the amount of the gins should be paid out of that crop and the next.
On cross-examination, witness repeated, in substance, the above statements, and also deposed that he offered to give up the old papers to Worthington, and asked him to give new ones, and he §aid that the old one was good, and gave witness Ins-word and honor that he would pay the amount agreed on.
The testimony of this witness was to some extent corroborated by the deposition of Martha W. Mason, who lived with Worthington, and heard some of the conversation between him and Tichnor about the gin-stands debt.
The only promise proven to have been made by Worthing-ton to pay twenty-five per cent upon the debt, after his discharge in bankruptcy, was that of 18th December, 1871, which was about one year, eleven months and seven days before the-grant of letters of administration upon his estate to appellants.
The note not being under seal, five years was the period of' limitation applicable to it. It was executed 6th of March, 1862, when the civil war was flagrant, payable on the removal of the blockade at New Orleans, but the statute of limitations did not commence to run against it until the proclamation of peace, 2d of April, 1866. Mayo & Jones v. Cartwright, ad. et al , 80 Ark., 414; Shinn v. Tucker, M. S.
Putting out of view the bankruptcy of Worthington, and the verbal promise after his discharge to pay part of the debt, any suit upon the note was barred by the statute of limitations before his death, which occurred 19th November, 1873, and of course there was no right of action upon the note against his administrators.
Moreover, at the time the promise was made (18th December, 1871), the note was barred by limitation, as well as discharged in bankruptcy.
The court below, however, treated the suit as being founded upon the new promise to pay part of the debt, and not upon the note, and found that the promise was made within the period of limitations.
If the suit was upon the now promise and could be maintained upon it, three years was the period of limitation applicable to it, the promise being verbal, and the time had not rim out when letters of administration were granted to appellants, and then the general statute of limitations ceased to run, and the statute of non-claim applied, and the suit was commenced against the administrators within two years from the grant of letters. Walker as ad. v. Byers, 14 Ark., 247.
But by statute, a verbal promise to pay a debt barred by limitation will not revive the debt, or remove the bar. Of course such a promise to pay part of the debt will not remove the bar as to such part.
If Worthington had made a written promise to pay one-fourth of the note, after it was barred by limitation, such promise would not have revived the old debt, but would have given a new cause of action, co-extensive with the promise. Duffin v. Phillips, 31 Ala., 573, and citations.
So a verbal promise to pay a debt discharged in bankruptcy will revive the debt. Apperson & Co. v. Stewart, 27 Ark., 619; and a promise to pay part of the debt, may, limitation being out of the way, give a new cause of action for so much.
But here the whole debt was barred by limitation, and the verbal promise .removed the bar from no part of it.
There were no written pleadings, and none were required, -but appellants relied on two defenses ; the statute of limitations and the discharge of their intestate in bankruptcy. The latter defense was defeated by the verbal promise to pay the part of the debt sued for, but the former defense was in no way avoided.
It follows that upon the facts in evidence, appellee was not entitled to a verdict and judgment.
Reversed and remanded for a new trial. | [
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ENGLISH, C. J. :
The bill in this case was filed in the Circuit Court of Jefferson county, on the 28th of August, 1871, by Ambrose H. Sevier against Sebastian Geisreiter, JamesP. McGaughey, A. L.. Breysacher and B. F. Fall.
The bill alleges, in substance, that on the 3d of September, 1867, William Warren Johnson, being the owner in fee of block No. 12, in James’ addition to the city of Pine Bluff, bargained and sold, and hy deed of that date intended to convey to defendant Geisreiter, said block for $1,200, of Avhich $600 was paid in cash, and the note of Geisreiter taken for-$600, pajuiblc twelve months after date, and secured by an express lien reserved upon the block in the face of the deed.
That after said deed was executed, acknowledged and. recorded, said Wm. Warren Johnsou discovered that by a mere-mistake and clerical error therein he had conveyed to Geis-reiter, block No. 14, in James’ addition to Pine Bluff, which he did not own, instead of said block No. 12, which he did. own, did in fact sell, and intended to convej^ to Geisreiter.
That to correct said mistake, Johnson, on the 18th day of' June, 1868, executed to Geisreiter a second deed, reciting the. first deed, the mistake therein, its registration, etc., and conveying said block by proper description, which deed was duly-acknowledged and recorded. Certified copies of both deeds,, ndth the certificates of acknowledgment and registration, are-made exhibits.
That afterwards, Wm. Warren Johnson was adjudged a, bankrupt, on his own petition ; and James P. Clayton was appointed his assignee in bankruptcy, who, as such, on the 7th of August, 1871, sold and assigned to plaintiff (Sevier) the note for $600, executed by Geisreiter to J ohnson for balance-of purchase money of said block, together with the equitable right and lien of the assignee in bankruptcy upon the property.
The note and assignment are exhibited. That defendants McGaughey, Breysacher and Fall had purchased a part, or the whole, of said block No. 12, and were residing threon, holding- ■ some interest therein unknown to plaintiff, and that they purchased with full knowledge that Geisreiter had not paid said note to Johnson or his assignee in bankruptcy.
Prayer for decree against defendant, Geisreiter, for the •amount of the note, etc., and that the block be condemned to '■'be sold by a commission to satisfy the decree, etc.
McGaughey answered the bill. He admits that Wm. War'ren Johnson sold to Geisreiter said block No. 12, and took his note for purchase monej^ as alleged in the bill’. That • Johnson became a bankrupt some time in the year 1868, but fraudulently omitted to schedule said note for $600, and •assigned it to Benj. S. Johnson, who brought suit upon it on the law side of the Circuit Court of Jefferson county, against 'Geisreiter, to the Spring term, 1869, and that such proceedings were had in the suit, that on trial of an issue joined in the •cause, 19th of May, 1869, judgment was rendered against the plaintiff therein and in favor of Geisreiter, which was a satisfaction and extinction of said note as a lien on said block.
He alleges that on the 6th of October, 1869, he purchased lots 3 and 4 of said block No. 12, of Marcus L. Bell, for •■$1,000, which at the time of the purchase was the full value ■of the lots, and that said judgment being of record, he supposed of course the lien was extinguished, and avers that he was an innocent purchaser for a valuable consideration, without notice of any lien on the property, and claims the protection of the court of equity.
That at .the May term, 1871, of said court, Benjamin S. • Johnson withdrew said note from the files of the court, leav•ing a copy, erased the assignment thereon to himself, and ;by fraudulent combination procnred James P. Clayton, who 'had formerly been assignee in bankruptcy of William War-Ten Johnson, but who had filed his accounts, and been discharged on the 18th of February, 1869, to make an assign ment of said note, on the 7th of August, 1871, to com-, plainant, Sevier. That this assignment was illegal, fraudulent and without consideration. That Clayton made no pub-' lie sale of the note, and gave no notice of sale, but assigned it to complainant, without consideration, to enable him to sue upon and collect it for the benefit of Benjamin S. Johnson, or the bankrupt, William Warren Johnson. So he charges that complainant has no legal or equitable title to the note, and ought not to recover upon it as against respondent, who claims to be an innocent purchaser.
That Clayton did not institute suit on the note within two years from the time his right of action accrued thereon,, which was on his appointment as assignee, nor could he by assignment vest in complainant any right to sue on the note..
He asks that Benjamin S. Johnson and James P. Clayton, be made parties to the suit, and that his answer be taken as a. cross-bill against them, and that they be required to answer-the same ; and prays to be discharged with costs.
Geisreiter answered the bill. He adopts the answer of' his co-defendant, McGaughey, so far as it relates to and ad-, mits the sale of the property to him, and the execution of the note by himself, and admits that the two. deeds made exhibits to the bill are copies of the original. He-further adopts the answer of McGaughey so far as it charges the fraud of William Warren Johnson in the suppression of' said note in his bankrupt schedule; and the statement of the suit of Benjamin S. Johnson against respondent on the note,., and the judgment in his favor therein, which he pleads as a. bar to this suit.
Charges that the taking of the note from the records of the court, and the striking out of the assignment thereon, was illegal, and done for the purpose of perfecting and carrying out the original fraud of William Warren Johnson, and the procuring- of Clayton, the pretended assignee of said Johnson, more than two years after his iinal settlement and discharge, to make said pretended assignment and sale of said note to complainant, without notice of public sale, and without consideration, and that said sale and assignment was void, etc.
Also adopts so much of the answer of McGaughey as pleads the limitation of two years allowed the assignee in bankruptcy to sue on the note, etc.
Demurs to the whole bill for want of equity.
Asks that Benjamin S. Johnson and James P. Clayton be made defendants to the suit, and prays to be discharged, etc.
Complainants filed a replication to the answers of McGaughey and Geisreiter. Denies any fraudulent combination on his part as charged in the answer.
Alleges the truth to be that said William Warren Johnson having been legally adjudged a bankrupt, as stated, and the note herein sued on having been adjudged by the Supreme Court of the State to constitute a portion of the assets of said bankrupt, (see Johnson v. Geisreiter, 26 Ark., 44), the same was surrendered to the duly and legally appointed assignee of said bankrupt, and was by said assignee sold under the order of the bankrupt court, and complainant became the purchaser thereof as stated in the bill, which facts would appear from a transcript of the records of the bankrupt court made an exhibit.
That McGaughey was not an innocent purchaser as alleged, etc. That said note was described in the deed from William Warren Johnson to Geisreiter, etc., and also set out and described as an encumbrance upon said block No. 12 in a deed executed by Geisreiter to M. L. Bell and H. King White on the 5th of March, 1869, as the same appeared of record in the recorders office, etc., and that said incumbrance was further recognized and set out in an interchange deed executed between said Bell and White on the 8th of April, 1869, and recorded, etc., certified copies of both of which deeds are made exhibits.
That Bell and White purchased said block No. 12 of Geis-reiter for $700, and for the further consideration of a covenant on their part to hold him harmless against said note, which covenant was fixed by the deed from Geisreiter to them as a special lien on the block. That McGaughey and Fall purchased of Bell and White, and had not paid the full purchase money, but well knowing of said incumbrance withheld a portion of the purchase money for the special purpose of protecting themselves against it, etc.
That Bell and White were the real parties setting up the above defences in this suit, and if there was any fraud in the matter it was on their part, etc.
The cause was heard at the May term, 1877, upon the pleadings, exhibits and the depositions of James P. Clayton; and defendants Breysacher and Fall having failed to answer a decree pro confesso was entered against them. The court held that Benjamin S. Johnson and James P. Clayton were not necessary parties, and rendered a decree against Geisreiter for the amount of the principal and interest of the note in suit, and condemned the whole of block No. 12, to be sold by a commissioner to satisfy the decree, unless the debt should be paid by Geisreiter on or before a day fixed in the decree, etc.
Geisreiter and McGaughey appealed to this court.
1. It appears that in the suit of Benjamin S. Johnson against Geisreiter, on the note in controversy in this case, Geis-reiter pleaded that William Warren Johnson was the owner of the note at the time he filed his petition in bankruptcy, that he did not include the note in his schedule, and assigned it to Benjamin S. Johnson after the filing of the petition. That therefore the assignment was null and void, and that Johnson did not thereby acquire the legal title to the note. That to this plea Johnson demurred, the court overruled tbe demurrer, he-rested, and judgment was rendered discharging Geisreiter from the action with costs. On appeal by Johnson to this court* the judgment was affirmed (at the December term, 1870) the court holding that the bankrupt could not make a valid assignment of the note after filing his petition in bankruptcy. Johnson v. Geisreiter, 26 Ark., 74.
This is the judgment which appellant McGaughey, ■ in his answer to the bill, pleaded as an extinguishment of the note in controversy, and which appellant Geisreiter, in his answer* pleaded as a bar to recovery by appellee, Sevier, in this suit.
The defense made by Geisreiter to the action brought by Benj. S. Johnson on the note, was not a plea to the merits, it was merely a plea that the legal title to the note was not in the plaintiff in the action, and the judgment of the court sustaining-the plea, was not an extinguishment of the debt, nor a bar to* a subsequent recovery upon this note by any person rightfully holding it. Cannon et al v. State, 17 Ark., 365, Moss v. Ashbrook et al, 12 Ark., 375.
' II. It appears that at the May term, 1871, of the Circuit Court of Jefferson county (20th May) Benj. S. Johnson obtained leave of the court to withdraw the note in controversy from the files of the court, on filing a copy thereof.
It appears from a transcript of the records of the District Court of the United States for the Eastern District of Arkansas', in the matter of Wm. Warren Johnson, bankrupt, exhibited with the pleadings in this cause, that on the 18th day of' February, 1869, the accounts of James P. Clayton, as assignee-of Wm. Warren Johnson, which, with a petition for discharge* had been previously filed, were examined and approved by Albert W. Bishop, Register in Bankruptcy* and Clayton discharged.
It also appears that on the 27th of July, 1871* James P._ Clayton filed a petition in the bankrupt court, addressed to-the District Judge, stating, in substance, that he, on the-day of- 1868, by order of the court in bankruptcy, was-appointed assignee of the estate of Wm. Warren Johnson,, bankrupt, pursuant to the 13th section of the Act of Congress to establish a uniform system of bankruptcy, etc. That among the estate of said bankrupt, which had come into his possession, was a note for $600, dated Sept. 3d, 1867, given by Sebastian Geisreiter, and made payable to Wm. Warren Johnson, or order. That this note or claim had come into his possession within the last few days, and after the sale of the other assets of the estate of said bankrupt. That this note was all that remained of the assets of said bankrupt’s estate in his hands ; and praying the court to order the same to be sold at private sale, and the proceeds thereof to be paid over to the Register in Bankruptcy for the benefit of the creditors of the-estate of said bankrupt according to law.
Upon this petition the following order was made by the Register in Bankruptcy.
“On reading and filing the petition of James P. Clayton,, assignee of the estate of the above named bankrupt, it is ordered that said assignee be, and he is hereby authorized, to sell all the interest of said bankrupt in a certain promissory note for six hundred dollars ($600) dated Sept. 3d, 1867, given by one Sebastian Geisreiter, and made payable to the said Wm. W. Johnson or order, at private sale.”
On the 7th of August, 1871, Clayton, as such assignee, reported that he had sold the note mentioned in the order of sale for $15, and filed a sworn account for settlement, (charging $10 for his services), and record petition for discharge.
On the 19th of August, 1871, his account was approved by the register, and he was again dischai’ged.
On the note in controversy, as made an exhibit to the bill, is this endorsement:
“I hereby assign this note, together with all equitable right and lien held by me, as assignee upon said property sold by said Wm. W. Johnson, value received, without recourse on me, to A. H. Sevier.
JAS. P. CLAYTON, Assignee.”
Clayton in his deposition stated that when he sold the note he was of the opinion that it could not be made available to the creditors of the bankrupt, who were numerous, and that an attempt to litigate for the collection of the note would be expensive, and probably unsuccessful. That he had no interest in this suit, etc.
He shows that Benj. S. Johnson was active in procuring his reappointment as assignee, and in obtaining the order to sell the note, etc.
Upon the above facts it is insisted for appellants that the title to the note is not in Sevier, and that he had no right to sue thereon; that the register had no power to make an order directing Clayton to sell the note after his discharge as assignee, no authority to order him to make a private sale of the note, and if he had, Clayton sold the note for a price grossly inadequate, and the sale was therefore invalid.
Orders of the register are made under the supervision and control of the District Court, which is always open for bankrupt purposes, and any order made by the register, except such as the court only has power to make, must be regarded as valid, when collaterally questioned, as in this case, in the absence of any showing that it was disapproved by the court. Rev. Stats, U. S. Bankruptcy, Ch. 1. Rule V. Bump, 9 Ed. 858.
We take it that the order of the register authorizing Clayton, as assignee, to sell the note, made after his first discharge, was equivalent to opening the order discharging Mm, or to his reappointment as assignee.
When assetts come to the hands of ah assignee, or are ascertained to exist, after his discharge, we can see no good reason why the order discharging him might not be opened, or he be reappointed by the court, or register under its supervision, and such, we believe, is the practice.
The order to sell the note at private sale was doubtless made under sec. 28 of the Bankrupt Act, Rev. Stat. U. S., sec. 5064. Bump (9 Bd.) p. 130.
Whether the note was sold by the assignee for little or much did not concern Geisreiter, the maker of the note. He was a debtor, not a creditor of the bankrupt. The creditors might have applied to the bankrupt court to have the sale set aside on the ground that the note was sold for a grossly inadequate price. Bump (9 Bd.) p. 168. The maker of the note, when sued upon it by an assignee, cannot question the consideration given by the assignee to the assignor for the transfer of the note. Booker v. Robbins & Page 26 Ark., 660.
Perhaps if Geisreiter (though not a creditor of the bankrupt) had gone into the bankrupt court, and shown that Clayton, as assignee, under an order of the register, had made a private sale of his note to Sevier for $15, that the note was for $600, secured by a lien upon a block of ground in Pine Bluff, and that he was willing to pay the amount of money due upon the note into court for the benefit of the creditors of the bankrupt, the court would have accepted the money, and on proper process to Sevier required him to bring the note into court, set aside the sale, caused his $15 to be refunded to him, and the note to be surrendered to Geisreiter, and the balance of proceeds distributed to the creditors of the bankrupt.
But neither Geisreiter, nor any creditor of the bankrupt, appears to have made any objection before the bankrupt court to the order of sale, or the sale and assignment of the note to Sevier. We must therefore regard him as holding the legal-title to the note for the purposes of this suit.
III. We are next to enquire whether this suit was barred by the limitation of two years prescribed by the bankrupt act.
“No suit, either at law or in equity, shall be maintainable in. any court between an assignee in bankruptcy and a person claiming an advei-se interest, touching any property or rights of property transferable to or vested in such assignee, unless brought within two years from the time when the cause of action accrued for or against such assignee. And this provision shall not in any case revive a right of action barred at the time-when an assignee is appointed. Rev. Stat. C. S., sec. 5037, p. 982.
There was a similar section in the bankrupt act of 1871, and the courts held that the limitation applied to suits by the as-signee to collect the debts and assets of the estate as well as to suits relating to specific property. Mitchell v. Great Work M. & M., Co., 2 Story, 660. Prichard v. Chandler, 2 Curtis, 448. Paulding v. Lee et al, 20 Ala., 753. Harris v. Collins, et al, 13 Ala., 388. Comegys v. McCord, 11 Ala., 932. Archer v. Duvals, ad., 1 Florida, 219. Pike v. Lowell, 32 Maine, 245.
And the weight of judicial opinion (though there are some decisions to the contrary) favors the same ruling under the-limitation section of the late bankrupt act above quoted. Bailey v. Glover, 21 Wallace, 342. Payson v. Coffin, 4 Dillon, 386. Walker v. Towuer, Ib., 165. Miltenberger et al v. Phillips, 2 Wood, 115. Norton, assignee v. D.La Villebeauve, 1 Ib., 163.
The object of the present suit was two-fold ; first, to obtain a personal decree against Geisreiter, a debtor of the bankrupt,. •and second to enforce a vendor’s lien against a block of land in which appellant, McGaughey, claims an adverse interest.
In the deed from William Warren Johnson to Geisreiter of •3d September, 1867, an express lien was retained to securethe .note for $600 given for balance of purchase money, and the deed was not to become absolute until the note was paid. There was a clerical mistake in the deed in describing the block, ■ •but this error was corrected by the deed of 18th of June, 1868, and construing the deeds together, Johnson, the vendor, had a lien on the block, like a mortgage, to secure the payment of the note recited in both deeds for balance of purchase money.
When a debtor has been adjudged a bankrupt, an assignee appointed and qualified, and assignment executed by the register, the assignment relates back to the commencement of the proceedings in bankruptcy, and thereupon, by operation of law, the title to all the property of the bankrupt, both personal and real, legal and equitable, vests in the assignee. Bump, p. 107.
It follows that the legal title to the note in question, with the equitable right to enforce the lien upon block No. 12, which was a security for and an incident to the debt, was in Clayton, as assignee of Johnson, from the time of the assignment (which related back to the commencement of the proceedings in bankruptcy) down to the date of his first discharge as assig-nee, though the note was not included in the schedule of the bankrupt, and was not in the possession of the assignee, during that period. The law vested in him the title to the note ; hence this court heldin Johnson v. Geisreiter, sup., that Johnson (Ben S.) had no title to the note, and could not maintain an action upon it under an assignment made to him by the bankrupt after he filed his petition in bankruptcy.
The note matured on the 3d of September, 1868, when the right of action upon it accrued to Clayton as assignee, for we take it that he could not sue at law upon the note, or bring a bill to foreclose the lien until the debt was due. The statute of limitation commenced running against him when his cause of action accrued, though he was not in possession of the note by reason of the fact that the bankrupt had not included the note in his schedule, but assigned and delivered it to Benjamin S. Johnson. It may have been a fraud, or a mistake, in the bankrupt to omit to schedule, and surrender the note to the assignee, but whether one or the other, it was not the fault of Geisi'citer, the debtor. No fraud or concealment is imputed to him. There must be fraud in the debtor, and not the creditor or his representative, to prevent the running of the statute of limitations. Prichard v. Chandler, 2 Curtis, 488. Bailey v. Glover, et al, 21 Wallace, 342.
The statute was running against Clayton, as assignee, from the maturity of the note, to the time of his first discharge, which was on the 18th of February, 1869, a period of about, five months and a half; but having commenced to run against him when he had the right to sue, it continued to run notwithstanding his discharge, and when he was reappointed, or his discharge opened, however it may be viewed, on the 27th of July, 1871, the two years limitation presented by the statute had expired, and his cause of action was barred. Brown as ad v. Merrick & Fenno, 16 Ark., 612.
This case differs from McOustian v. Barney, M. 8., in which we held that when a right of action accrues to an estate when there is no administrator — no one to bring suit — the statute of limitations does not commence to run until an administrator is appointed.
At the time, therefore, that Clayton sold and assigned the note to Sevier, he had no cause of action at law upon the note, and no right to bring a bill in equity to foreclose the lien. His legal and equitable causes of action were barred in the courts, both Federal and State.
Can an assignee in bankruptcy assign a note barred in his hands by the Federal Statute, and thereby enable his assignee to sue the debtor and put him upon the general statute of limitations of the State?
In Paulding v. Lee et al, 20 Ala., 754, the suit was upon a claim purchased by the complainant of the assignee of a bankrupt firm, and two of the judges held (the others expressing no opinion) that the claim being barred as against a suit by the assignee, by the limitation section of the bankrupt act of 1871, the suit of the complainant was barred by the same statute.
So in Pike v. Lowell, 32 Maine, 245, an assignee in bankruptcy sold to Bolkcom a non-assignable chose in action belonging to the estate of the bankrupt, and Bolkcom not having the legal, but only an equitable title to the claim, sued the debtor in the name of the assignee of the bankrupt- from whom he had purchased the claim. The court held that the suit was barred by the limitation clause of the bankrupt act of 1871. There the assignee of the bankrupt was but the nominal plaintiff, the purchaser of the claim being the virtual plaintiff.
In Judson v. Lathrop, 6 La. An., 587, it was held that the prescription of two years, in the bankrupt act of 1871, related to actions by and against assignees, and not to those for the recovery of debts disposed of as bankrupt assets. It does not appear, however, in this case, that the claim was barred in the hands of the assignee before he sold it.
At the time Clayton sold and assigned the note to Sevier, having no cause of action upon the debt, it being ban’ed by limitation in his hands, he could not transfer to Sevier a larger right than himself posesssed. Nemo plus juris ad alienum transferre potest quam ipse habet. Broom’s Legal Máximes, p. 357.
T\re are of the opinion that the suit of appellee was barred, and the decree of the court must be reversed, and a decree entered here dismissing the bill. | [
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Eakin, J.:
This is a branch and continuation of the case of Waggener et al. v. Lyles et al., in which an opinion was delivered here on the 5th December, 1874 ; and an order made remanding it, with instructions.
Pending the former appeal, a portion of the property in controversy, was on the 20th of February, 1871, forfeited to the .State for non-payment of the taxes of 1869, to-wit: Part of Spanish Grant No. 2290, and also the southeast and the southwest quarter of section 27, in township 7 north, of range-9 east.
Meanwhile, the Receiver, Berry, seems to have continued, nominally, to be recognized as such, although he did nothing-more than to transfer the custody and control of the property to George W. Cheek as a tenant. He collected no rents from Cheek; but the rents, whatever they were, were disposed of by agreement amongst the parties interested. All matters in litigation seem to have been compromised amongst the original litigants, before the decision of the case here; and perhaps for that reason no action has since been taken, in the court below, in accordance with the mandate of this court on said 5th, December 1874.
George W. Cheek, holding nominally under the said receiver, had, pending the appeal, sub let to John McLaughlin the Mound City property, described as ‘ ‘ part of Spanish Grant, No. 2290 — 108.00,” and to D. C. Robinson the two' quarter sections above described in section 27 ; who were holding, as tenants of Cheek, when the time for redemption expired in 1873.
On the 14th of April, 1873, each applied to the Auditor of State to purchase the respective portions of land, held by them under sec. 172 and 173, chap. 148, of Gould’s Digest, by which citizens or heads of families and actual settlers upon lands forfeited to the State for taxes, were authorized to purchase the same of the Auditor, upon payment of the amount of taxes due thereon, with penalty and costs. They made the neces sary affidavits to this end, and received deeds from the Auditor, McLaughlin paying for his portion the sum of $2892.90, and Robinson, the sum of $123.68; which sums included the taxes of 1869-70-71 and 72.
About the same time Robinson conveyed all his interest to McLaughlin.
There have been intermediate conveyances since then, of shares of these lands from McLaughlin to others, and recon-veyances back to him and to his wife, which it is unnecessary to notice, as all the interests, under these purchasers from the State, became united again in McLaughlin’s estate after his ■death. It is in proof that, before purchasing from the State, McLaughlin advised Cheek, his landlord, that the time for redemption was about to run out, and that others were looking after the land with a view to its purchase ; to which Cheek responded that McLaughlin did not know what he was talking about.
After his purchase from the auditor, McLaughlin repudiated the tenancy and claimed the property as his own, refusing to pay rents. A contest then began for possession, through orders of the court below, regarding the property; based upon the idea that it was still in the custody of the law,, from having been ordered into the hands of Berry, as receiver. On the 9th of December, 1873, Robert B. Burton, was by the Crittenden Circuit Court appointed receiver to fill the vacancy occasioned by the death of Berry, and in January following, by agreement of attorneys, the appointment was confirmed here, where the appeal was still pending. It was ordered that said Burton be x’ecognized as such receiver, as well in this court as in the court below.
Thereupon the parties to the original suit, making common cause against McLaughlin, began proceedings in the court below to remove him from possession, and to compel restitu tion to the Receiver Burton. Application was made by petition to the Hon. John W. Fox, Circuit Judge, for the purpose, who for some reason did not act. On the 13th of May, 1874, the petition was granted by the Hon. John E. Bennett,, then an associate justice of this court, who afterwards, by writ of assistance, put the property in the hands of Burton.
McLaughlin and. his co-tenants, afterwards applied to his. honor, Judge Hutton of the Circuit Court, who sitting in Chambers on the 29th of July, 1874, ruled that the injunction had been improvidently awarded by a judge having no jurisdiction, dissolved it, and ordered- Burton to restore possession to McLaughlin and his co-tenants.
Afterwards it seems from an order in the transcript without date or file mark, that the Circuit Court ordered Burton to bring an action of forcible entry and detainer for the lands, against James McLaughlin, as guardian, and Mary McLaughlin, as executrix ; John McLaughlin, having died in possession leaving a son, and devisee of these lands, Francis P. A. McLaughlin. When the action was brought does not appear in the transcript, (which throughout is wonderfully careless, and regardless of the rules of this court) but we might infer from a paper, bound up with the transcript, that it was pending on the 25th of October 1876 ; and dismissed on the 3d of November of the same year; at the cost of the plaintiff.
Resort was again had to the chancery proceedings ; and after several attempts, all the parties interested were brought in on a rule to show cause why the lands should not be surrendered to the receiver ; and those holding it punished for contempt.
Respondents to the petition, in showing cause, set up the purchases from the State ; and amount of taxes paid, with pen-penalties and costs ; and also claims for valuable improvements ; for all which no one had paid or offered to pay them.
They also relied upon two years’ possession as a bar under the statute of limitations.
Upon the hearing, the court appointed a special master to report “ the amount paid the State as taxes for said lands by John McLaughlin, and by D. A. Robinson, with one-hundred per centum per annum thereon, and the amount of taxes since paid thereon by John McLaughlin and his successors, witn twenty-five centum per annum thereon from the date of payment, and the value of all improvements thereon,” made since the payment.
The receiver reported on the first of November, 1876, as follows:
Amount paid by McLaughlin to Auditor for taxes, $2,892 50
Amount paid Ivy Robinson to Auditor for taxes. . . 138 06
100 per cent, on both sums. 3,025 36
Taxes for 1874. 234 09
Penalt} for 1874 and 1875. ' 117 04
Taxes for 1875. 133 86
Penaltv. 33 46
$6,570 37
The improvements of a permanent character were reported, with valuations swelling the amount to... $7,148 37
To this report, the parties moving for the rule, consisting of those interested in the fund in court as represented by the receiver excepted ; objecting only to such parts as allowed any interest or penalty on the amount of taxes paid, and as to all or any sutn for improvements.
The court overruled the exceptions, and ordered that upon payment to the said Mary A. McLaughlin, and Francis P. A. McLaughliu, of the said sum of $7,149.37, the receivership of said Burton, should be extended over the property in controversy, and the deed from the auditor cancelled.
From this order the original parties to this suit'excepted and appealed.
The report of the master is in accordance with directions. The question is upon the correctness of the Chancellor’s views in making the reference. He evidently supposed that the act of January'10th, 1857, (See Gantt’s Digest, Sec. 2267), applied to this form of proceeding; and to the circumstances attending the supposed acquisition of the titles from the State. If so the directions were proper.
The Receiver, Berry, appointed in the original cause, was not discharged by the former appeal, nor was the control of the property taken from him during its pendency. He remained reeeiver until his death. The proper course would have been then, to have applied here for the appointment of a successor. That was not done, but the appointment of Burton made below, was ratified here in such a manner as to settle it, in this case, beyond further question, that all the property in the original suit, must be considered to have remained in the custody and under the control of its Receiver. That little use was made of him until the contest for possession arose, does not affect his status.
John McLaughlin and Robinson were tenants of property thus in custody of the court, paying rent to one of the parties to the suit, by agreement and consent of the receiver, and of all others interested. Formally they were sub-lessees of Geo. W. Cheek, who was lessee of the receiver; but substantially, and for all practical purposes, they had possession under the court, of property in its custody for the benefit of litigants.
When the property became forfeited to the State for nonpayment of taxes, by neglect of the receiver, they might have terminated the tenancy by re-delivery of the possession, or protected themselves from eviction by a future purchaser from the State, by advancing the taxes and holding a lien for reimbursement, or, as has been held in this court in Ferguson v. Etter, 21 Ark., 160, if the lands had been sold for taxes at public sale dui-ing their tenancy, without their fault, they might have bid, and set up title thus acquired against that of the Receiver. The fact that the property was in the custody of the coux-t did not, of itself, prevent the collection of revenué and could not retard it.
But they availed themselves of a possession which they held as tenants, as a basis to acquire title as actual settlers, which no one else under the circumstances could have acquired against them. They had no right to make use of a possession thus acquired, to found upon it a claim hostile to the landlord. If they had intended that, they should have restored possession, that the landlord might be free to contest the validity of the forfeiture to the State, and have the advantage of possession.
When they purchased from the State, under these circumstances, they became constructive trustees for the benefit of the owners of the property in court, and subject to the control of the court with regard to said property, as fully as when they held under it as tenants. This trust remained, throughout-, attached to John McLaughlin, and falls upon his widow, heirs, devisees, or any holding under him in privity of blood, or otherwise ; save purchasers for valuable consideration, without notice. The proceedings, by rule to show canse, were apt for the purposes intended, and the statutes of limitations as to actions do not apply.
The validity of the forfeiture, and the sale from the Auditor is not important, and should not therefore be cancelled. The deed may stand good to divest the property from the State, if she had any by the forfeiture ; and to vest it in the devisee of McLaughlin, and his widow, who claims legal title to a poi’tion ; all to hold as trustees for the puiposes of this suit.
The Chancellor erred in directing an allowance for penalties on subsequent taxes, and 100 per cent, on the amount paid the Auditor.
Considering McLaughlin and Robinson throughout as trustees, they cannot derive any benefit to themselves from their purchases, or in any manner speculate upon the property. They should be allowed the actual amount paid, in money, to the Auditor when the lands were bought, or if scrips were used, the cost of the scrips in money, or if that cannot be ascertained, the average costs of such scrips at the time.
No per centum beyond the legal l’ato of 6 per cent, should be allowed upon the amount paid the Auditor, nor upon any subsequent taxes paid by McLaughlin, or for him. Nor should he be allowed penalties or costs, allowed to accrue upon subsequently paid taxes, although actually advanced. He had repudiated his tenancy; had the pernancy of the rents and profits ; and should have kept the taxes down out of them. That duty results, moreover, from the constructive trust.
Improvements, under the circumstances, are not allowable of right. Such as are reported seem to have been prudently made, and beneficial to the property. If the Chancellor should think it equitable under the circumstances to allow them to the extent of the rents and profits, it will not be held erroneous.
Reverse the order from which the appeal is taken, as well as the order directing the account; and let the cause be remanded to proceed under its original style, and as one cause with that of Waggener et al. v. Lyles et al., decided here upon appeal in December, 1874, save in so far as changes of parties may have become necessary; and' with directions that an account be retaken, charging said Jas. K. McLaughlin as guardian, and Mary McLaughlin as executrix, with the full value of the rents and profits of said Mound City property, and said two quarter sections in section twenty-seven, from the time said John McLaughlin ceased to pay rent, with interest at the rate of 6 per cent, from the time thej' were due ; with such allowances out of said rents as the Chancellor below may see fit to direct for improvements ; and crediting them with the money or value of other funds paid to the Auditor upon the purchase of the lands, as may be shown by proof, and with all taxes subsequently ¡laid without penalties or costs, and at the real value in money, with interest on all sums paid at the rate of 6 per cent, from the time of pajnnent; and upon a balance being struck, and upon payment by the Receiver of said amount to said McLaughlins, so in possession, or their agents, they be ordered to deliver possession of all said property to the Receiver appointed in this cause, or to be appointed in his place. And with further instructions to the court below, to proceed in said cause in all respects in accordance with law ; and not inconsistent with the opinion heretofore rendered therein, or this opinion. | [
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Eakin, J. :
There was, in this case, a trial and conviction, for manslaughter. There is nothing in the record to show that the indictment was brought into court by the grand jury. The indorsement of the clerk, “filed in open court,” is not sufficient. McKensie v. State, 24 Ark., 636.
Inasmuch as the supposed crime may be yet the subject of a proper judicial investigation, we forbear any comment upon the testimony, further than to say, in explanation of the course now pursued in declining to send down a certiorari of our own motion, that we think the jury must certainly have acted under ■a misapprehension of the law as given by instructions, or were influenced by their knowledge of facts not appearing in the record. We cannot find any proof, sufficient to sustain a verdict that the killing was by design, or done in the commission of an unlawful act, or under any such circumstances as to. make the defendant amenable to a judgment so terrible in its. disgrace.
Let the judgment be reversed, and the cause remanded, with the usual instructions in such cases adopted by this court as. to its practice. See McKensie v. State, supra; Green v. State, 19 Ark., 178; Holcomb v. State, 31 Ark., 427. | [
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EaiciN, J.:
Appellee, Alexander Hendry, on the 20th of September, 1875, filed a bill against Samuel and Joseph Mayes, to assert and foreclose an equitable vendor’s lien for the purchase money of-certain lands, alleging that he sold to them, and conveyed to Samuel. Mayes a third interest in a certain tract upon which there was a mill, for the sum of $2500, also one-sixth in the same tract which belonged to John Hendry, but which said appellee had a right to sell, for the sum of $1250, for which said John Hendry executed the conveyance.
Also, the entire amount of a certain other tract, lying adjacent, for the sum of $1300, which appellee and his wife at the time conveyed, and attempted to describe properly in the deed. The bill sets forth the true description, and offers to correct any errors in the conveyance, if such there be. The deed being in possession of defendant, Samuel Mayes.
The entire consideration of the said sale, composed of said several tracts, was $5050, to be paid as follows: $1000 to the order of complainant, on or before January 1st, 1875, with interest at the rate of 15 per cent, per annum, from its date of June 15th, 1873.
There were due from said complainant, two notes to W. F. Wilson, one for $600, dated June 11th, 1872, due at twelve months with interest at the rate of twenty per cent, per annum till paid; and the other for $132.50, dated January 1st, 1872, due at one day, with interest at the rate of. 15 per cent, per annum until paid. The former of these notes was secured by a trust deed to Wilson, on most of the real estate conveyed, except the mill property, but it included the residence. Said Samuel Mays being aware of this incumbrance, agreed as a part of the consideration of the purchase, to pay these notes to Wilson within a short time, not exceeding twelve months, and it was further agreed between complainant, said Wilson, and said Samuel Mays, that said Wilson would continue to hold his trust deed as a security for his notes and interest, and so much therefore of the purchase money, was left on open account between complainant and Mays. In part performance of this agreement, said Samuel, afterwards paid up the interest on said Wilson’s notes to the first day of July, 1874.
For the remainder of the purchase money, said Mays executed a certain other note, which complainant had cashed in bank, and also gave him mules and other property, leaving unpaid only the first named note, and the principal of the Wilson notes with interest from the first day of July, 1874.
Joseph Mays united with Samuel in the execution of the first note. At that time he was insolvent. The complainant alleges that he did not take his name as security, or rely upon it as such, but because he offered to sign, and complainant supposed from the representations of the parties, that he had an interest in the purchase. He with said Samuel has since been in possession.
Prayer for an account between complainant and defendants, and' a decree for the whole amount due, which is averred to be $2,247.20, or thereabout at the time of filing the bill; that his vendor’s lien may be declared therefor, and the lands sold on default of payment, and for general relief. No account is sought of the sum due Wilson, nor is there any prayer that a portion of the unpaid purchase money be appropriated to his debt.
• At the October term succeeding, Joseph Mays disclaimed, and Samuel demurred. The demurrer was overruled as to all the points specified, except for the cause that inasmuch as it appeared from the bill that Joseph Mays was a surety on the first note, there was as to that no equity for a vendor’s lien. This was cured by an amendment causing the bill to appear as above recited.
The other causes of demurrer overruled were, for want of equity; want of certainty in the description of the lands ; and failure of the bill to show title in complainant.
After amendment, defendant Samuel Mays, was by order of court, allowed until the 15th of December, 1875, to file his answer. He failed to do so, and at the next April term, the bill was by order of court taken as confessed. About two weeks afterwards at the same term, defendant moved to set aside tbe said order, and for leave to answer, tendering at tbe same time a sworn answer with his motion, all of which is brought on the record.
The grounds of the motion were in effect, that he had a meritorious defense ; that his answer was drawn, verified and left with one of his attorneys, prior to the 15th of December ; that the attorney left home, and was unavoidably detained until about the 25th, and that defendant supposed it had been hied, that the parties on both sides had been engaged in taking depositions, and there was a pending agreement for further depositions when the decree pro con/esso was taken, that complainant shortly before the interlocutory decree had been taken, had amended his bill as to material allegations.
With regard to the answer exhibited and tendered with the motion, it may suffice to say, that it traversed many of the material allegations of the bill, and presented matter which, if sustained by proof, would have materially affected the decree ■ in favor of defendant. Upon its face it is meritorious.
On the 1st of June the court refused the motion to set aside the interlocutory decree ; the amendment made at the time of taking it, was withdrawn by complainant; and a final decree was rendered.
The decree finds the sale of the several interests and parcels of land, as set forth in the bill, describing more particularly the metes and bounds of the second tract; that defendant Samuel Mays agreed to pay therefor, the aggregate sum of $5050. That he had paid all of said amount except $1000, and interest thereon at 15 per cent, per annum, from June 5th, 1875, which was to be paid directly to plaintiff, and except also the sum of $732.50, due to Wilson on the two notes held by him, and which the defendant assumed to satisfy, and the interest of which he had paid up to July 1st, 1874 ; .that complainant was not released from his liability on said notes, nor in anywise secured against the same, save by defendants promise to pay Wilson; that there was due and owing complainant the sum of $2446, consisting of principal and interest, on said notes ; that the $600 note of Wilson was a prior lien with interest from July 1st, 1874, amounting at the time of the decree to $830 ; that the defendants entered upon the posses sion of the lands at the time of the purchase, and that Joseph. Mays had no interest; that he was insolvent and not accepted, as surety, and that complainant retained his vendor’s lien.
It was ordered that complainant recover the sum of $1616, being the balance due after deducting said sum of $830, with, interest on $1132.50 thereof, at 15 per cent., and interest on. $485.50 at the rate of 6 per cent, from the date of the decrees,
Time was given for the payment of said sum of $1616, and upon default it was ordered that a special -fieri facias might issue to the Sheriff, as commissioner, to carry out the decree and make sale of enough of the property to pay said sum of $1616, and in case of deficiency, that execution issue for the remainder ; and that said defendant hold said premises subject to the payment of said sum of $830, in addition to complainant’s lien, which last sum’is held as “yet due of the purchase price agreed to be paid to said Samuel Mays.” Defendant-appealed.
There was no error in overruling the demurrer, as to all the points, except as to that regarding the waiver of the vendor’s lien, by the acceptance of Joseph Mays as surety on the note. Upon this point we may presume the demurrer was properly sustained, although the bill was amended to meet the objection, and as it appears now in the transcript, shows circumstances which rebut the waiver. The rule as recognized in this court is, upon this point, that the acceptance of other security raises a presumption that the vendor meant to waive his equitable lien for the purchase money; but it is nevertheless a matter of intention. The vendor may show, from circumstances, that ■such was not the intention, and in that case the lien will be protected, although other security be taken. As to other matters the bill shows sufficient equities upon its face to entitle •complainants to some relief. The supposed uncertainty in the ■description of the lands, should have been met by a motion to make the complaint more definite and certain, and not by demurrer. It is not plainly defective as it stands
The lands are described by courses, distances, measurements and contiguous boundaries. If these measurements and contiguous boundaries exist, the lands may be located by them. If they do not, that should be shown by answer. There must, in all descriptions of lands, otherwise than by the government surveys, be marks and monuments, or contiguous boundaries, of which the court cannot take judicial cognizance. If they are such as may be found by persons acquainted with the locality, they must be taken for granted as existing, unless denied.
If the boundaries of the last tract be imperfectly described, enough, nevertheless, appears in the bill to show that there was a sale of a certain tract lying east and north of the Mill tract, which the complainant conveyed by what he supposed to be the true boundaries ; that he has not control of the. deed, which is in defendant’s possession, and that he is willing to correct the description if it is erroneous. Although, under the Code of Practice, he could not file a bill merely for discovery of the former description ; yet, in a bill filed to enforce other plain equities, he may well proffer, on behalf of defendant, and to do him complete justice, to correct any error he may point out, which would work to his prejudice. If the defendant refuses to point out any, it must be presumed, not only that the description is true, but sufficiently definite to enable a competent surveyor to locate the land.
It is contended that the complainant below, having executed deeds of the lands, and divested himself of the legal title, cannot now enforce his equitable vendor’s lien, without having-first exhausted his remedy at law. In other words, that a proceeding to enfoi’ce his equitable lien is upon the footing of a. creditor’s bill to reach equitable assets, and cannot be brought, without first,showing judgment at law, return, of nulla bona, insolvency, or something else, to make it clear that complainant is remediless at law. The analogy 'of the cases does not hold good, inasmuch as this is not a bill to reach equitable assets, but rather to reach a legal estate, and subject it to equities which a Court of.Equity alone can recognize and enforce. -It is simply to declare a trust for the purchase money upon specific property, which trust is raised in. equity and. continued until the debt becomes barred, and is based upon the same idea and is indeed part of the doctrine .of specific performance. That doctrine is that upon a valid agreement for the sale of land, the vendor, until conveyance, holds the legal title in trust for the vendee, and after conveyance, the vendee holds it charged with a trust for the purchase money. Although this trust rests upon no express contact — is the mere creation of courts of equity, and is guarded and qualified carefully.to protect innocent purchasers — there is no reason why, as between parties and those bound by notice, it may not be considered as specific as any resulting or other implied trust.
It is not easily comprehensible what is meant by saying that it is neither a jus ad rem, nor a jus in re, and that it has no existence until a bill be filed to enforce it. It is plainer. language to say that it does not bind innocent purchasers, before lis pendens, and that it is merely personal to the vendor, and does not pass to the assignee of the- debt. Within its scope, however, as carefully guarded by courts of equity, it is a specific lien co-existent with the debt — binding from the beginning, as well before suit as after, all who take the land with notice.
These principles were recognized and declared very forcibly and clearly by this court more than twenty years ago, in an opinion delivered by the present Chief Justice (See Shall v. Biscoe, 18 Ark., 142), in which the nature of this equitable lien was thoroughly discussed. Nothing indeed is left to be added.
The enforcement of such liens has been the common practice in this State since that time, and it has never been considered necessary to allege or show that the remedy at law had been exhausted. . .
The action of the courts of the several' States in America, has not been uniform with regard to this equitable lien. In some it has been rejected wholly, and in others received only in a modified form. The courts of Maryland and Indiana have held that the remedy at law must be first .exhausted, But the weight of American authority is in favor of the English doctrine. When the lien is recognized at all, it is best that it should be. efficient, and rest upon the idea of a trust, which follows the lands, with notice of its existence, and which like other trusts may be specially enforced in favor of the vendor without regard to the general solvency of the vendee. It does not conflict with this view, to hold that it is merely personal to the vendor and does not pass to the assignee of the debt. . It is the satisfaction of the vendor alone which is contemplated in equity, and those who take the notes are supposed to have given full value, and to have relied upon their legal rights upon them.
The failure of the bill to show that the. legal remedy of complainant had been exhausted, did not therefore affect its equity. Upon the whole we find no error in overruling the demurrer.
Ought the court to have granted leave to defendant to file his answer after default and the order to take the bill as con fessed? The answer appears on inspection to be meritorious, and the court might well, in furtherance of justice, have allowed it to be filed. But this was a matter within the discretion of the Chancellor. The Circuit Courts are the great reservoirs of original jurisdiction, entrusted with the active administration of justice amongst the citizens. It is the duty of the presiding judges to preserve the order of business in their courts, and see to it that cases proceed with dispatch, and in due course of practice. For these purposes a large discretion must of necessity be entrusted to them ; and this court is ever loth to interfere with that discretion, except in cases of plain abuse, or manifest mistake.
The judges are chosen by the people, are learned in the law, and have weighty responsibilities, which the}'- are doubtless anxious to discharge with fidelity. Presiding in the court they have personal cognizance of the conduct of suitors and attorneys, and are better able to judge of matters of laches, than this court can from the meagre contents of the transcript.
It is not enough to have a meritorious defense. It must be used in apt time, or the business of the courts might be interminably delayed. Suitors on both sides have rights, and neither should be allowed to delay the other, unreasonably. In this case, time was given beyond the return term of the summons, to answer. The time was ample, and the answer actually prepared, but not filed, either at the time designated nor afterwards; until, at the next term the bill had been taken pro confesso. Suitors are bound by the action of their attorneys in matters of practice, and although this may seem to us a case of hardship, we cannot say that the Chancellor abused his discretion, or that there was error in refusing leave to file the answer out of time. Upon default of answer the decree may be rendered on the bill and exhibits. Nothing else is confessed, and there are no issues.
We come now to the final decree, rendered upon the bill and exhibits, taken as confessed. It seems to us clearly such as a Court of Chancery should not have pronounced, inasmuch as it fails to make a definite and final settlement of the rights of the parties actually before the court.
The sale to Mays was not a sale of an equity of redemption, subject to a prior lien. It was a sale of the whole subject matter, at full value of the property, with the understanding that upon payment of the price agreed, Mays was to take the property discharged of all liens. To effect this it was agreed between all parties interested, that a part of the purchase money should be appropriated to the discharge of Wilson’s $600 note, which constituted the lien ; another part to Wilson’s other note upon complainant, for which there was no lien; and the balance to complainant. The vendor’s lien is set up for the whole, and so allowed by the court, but the decree is only for the payment to complainant of so much as was to be paid to himself, and so much as was to be paid to Wilson on the lesser note not secured by lien — and no order whatever is made for the payment to any one of the balance of $830, which is left in defendant’s hands, evidently for the purpose of being paid over to Wilson. The sale should have been ordered for the whole amount of the sum found due, and the money should have been brought into court and applied to the discharge of the lien — or, if deemed advisable, and Wilson had been willing, the amount of Wilson’s lien might have been fixed, declared and continued as a charge upon the lands in defendant’s hands. As it now stands, if defendant should fail to pay Wilson, and the latter should collect the debt of complainant, he would be obliged to renew the suit for the enforcement of the remainder of his lien. The decree is incomplete.
Again, if it should turn out that more is due on Wilson’s note than the amount recited in the decree, which may be the case, the defendant would be bound to pay it all to save the land, and a new litigation would spring up between him and complainant for reimbursement.
The court, in Wilson’s absence, takes the account of what is due him and fixes the amount to be paid him by Mayes. On the supposition that Wilson has a lien the court leaves so much of complainant’s lien unexecuted, and orders a sale of the lands for the remainder, without any action upon Wilson’s lien, or prayer for its enforcement. . This is adjusting the rights of parties by halves — without that complete and final settlement which chancery should always endeavor to acom-plish — and the necessity for which is often the only'ground of jurisdiction.
If the sale had been merely of an equity of redemption, subject to a prior lien, and that equity had been estimated at its value with reference to the burden, the complainant might have foreclosed his vendor’s lien without any reference to the older encumbrance, and had a sale of the equity for the payment of the purchase money. But this is not such a case. The sale, by agreement of all parties, was to bo made a clear sale, and the purchase money appropriated to relieve the older lien. It was for full value. The rights of the parties, as between themselves, cannot be adjusted, without an account with Wilson, and that cannot be taken unless Wilson be made a party. If being a party he should elect to let his debt remain as a lien upon the land and give further indulgence to defendant, discharging the complainant, the amount due complainant might then be ascertained in a manner to bind all parties, and close the litigation, in which case the land might be sold subject to Wilson’s lien, which also would be clearly ascertained. . ■
Although under our Code, the want of necessary parties must be taken advantage of, by demurrer or answer, or it will be deemed to be waived, this is to be understood only of such cases as in their nature allow of a ■ complete and final settlement of the rights of the parties before the court, amongst themselves. When this cannot be done, it is made the duty of the Chancellor to order the other necessary parties to be brought in (see sec. 4481 of Gantt’s Digest), and this he should do of his own motion at any stage of the cause, when the necessity becomes apparent, otherwise parties by consent, or failure to demur, or declining to insist on proper parties by answer, might compel a court to proceed to nugatory decrees which would settle nothing, and leave a subject matter open to litigation. Simms et al. v. Richardson & May, 32 Ark., 297
No proper decree can be entered in this, cause, without making Wilson or his representatives parties. The Chancellor erred in attempting it, and for this cause the decree must be reversed, and the cause remanded, with instructions to the court to direct Wilson to be made a party and brought in, and to allow complainant to amend his bill with apt averments for the purpose and also to allow defendant to answer the whole bill, and for other and further proceedings not inconsistent with this opinion. | [
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ENGLISH, C. J.:
On the 20th September, 1876, Reuben M. Fry filed a bill for injunction, on the chancery side of the Circuit Court of Chicot County, against James R. Martin, trustee, etc., and William B. Street, alleging, in substance, as follows :
That Plaintiff, Fry, on the 24th of June 1873, purchased of John M. Woodward certain lots and an adjoining acre of land, which are described, situated in Lake Village, for the price of $5000.00, of which he paid $3000.00 at the time, and assumed the payment of two notes for $1000.00 each, executed by said Woodward to defendant, William B. Street, dated May 10th, 1873, and payable 1st of April, 1874, and 1st of April, 1875, with interest thereon at ten per cent, from 15th April, 1873, at the counting room of Martin & Hillsman, Memphis, and secured by a lien on the property so purchased, being notes made by said Woodward in part payment for said property in his purchase of it from Street on the 10th of May, 1873. (A copy of the deed from Street to Woodward, and a copy of the deed from Woodward to plaintiff, Fry, are made exhibits.)
That at the time plaintiff purchased the property, he found filed for record the deed from Street to Woodward, in which it was recited that said two notes were secured by lien on the property, and plaintiff being advised that the purchase money was a lien on the property, presumed that it was to this lien that reference was made, as no deed of trust or mortgage was found of record or filed for record from Woodward to Street, or to any one else to secure said notes ; and being desirous of buying said property, and willing to secure the payment*of said notes as part of the purchase money, and to risk providing for their payment before foreclosure could be made to enforce the lien in the event he might not be able to meet them at maturity, he made the purchase stated. That owing to the financial condition of the country he would not have made the purchase if he had known of the existence of the deed of trust to secure the payment of said two notes — he would not have run the risk of losing what he had paid by a sale on twenty days’ notice, upon the men failing to meet the notes at maturity.
That Street had in fact, as plaintiff after his purchase ascertained, received from Woodward a deed of trust, wherein defendant, James E. Martin, is made trustee, said deed made to secure the said two notes from Woodward to Street, and assumed by plaintiff as aforesaid. That this deed of trust was in the hands of said trustee before the sale to plaintiff, and it was by the wish, and direction of Street to Martin, as plaintiff is informed and believes, withheld from record, and in order that the knowledge- of its existence might not interfere with any sale Woodward might attempt to make to plaintiff of said property. That at one o’clock p. m. of June 24, 1873, the day plaintiff received and filed for record his deed from Woodward, and after the deed of plaintiff had been filed in the forenoon of said day, said deed of trust was filed for record, and, as the record states, recorded 3d day of July 1873, the deed of plaintiff being recorded on the 24th day of June 1873, the day on which it was executed and filed for record.
That plaintiff had paid on said notes the sum of $500, on the-day of-and that the remainder of said notes is still unpaid. That plaintiff is not at this time able to pay the balance due on said notes. That he regards the property worth fully the price agreed upon, and vastly more than the balance now due, and that at the time a sale would be to him a great sacrifice. That an attempt to enforce the payment of said notes by means of said deed of trust, by any parties who aided, advised or directed its being withheld from record, to enable the said Woodward to sell to plaintiff, would be a fraud upon his rights, and be the means of depriving him of property that he might otherwise be able to save to himself and family.
That the said trustee has, by written notice advertised that he will, on the 2d day of October, 1876, sell at public auction for cash in hand the said property, and that all equity of redemption is waived. (A copy of the notice made an exhibit.) That by this sale defendants not only, seek to sell the property on terms not agreed upon by plaintiff, but also to deprive him of the right to redeem the same ; which right of redemption he is advised would remain to him if sold under a decree to enforce the vendor’s lien, which defendant, Street, might obtain by suit, of which plaintiff is advised he could have no just cause to complain.
Prayer for order restraining Martin from selling the property as advertised, and that on the final hearing he be perpetually enjoined from selling under the trust deed.
A temporary injunction was granted.
The defendants demurred to the bill, on the ground that it did not state facts sufficient to constitute a cause of action. The court sustained the demurrer, and plaintiff declining to plead further, the temporary injunction was dissolved, the bill dismissed for want of equity, and defendant’s damages assessed at $128.73, and plaintiff appealed.
The deed from Street to Woodward reserved a lieu on the property to secure the payment of the two notes described in the bill.
In the deed from Woodward to Fry, which was signed by both parties, Fry 'assumed and bound himself to pay these two notes as- part of the consideration of his purchase of the property from Woodward.
The deed of trust from Woodward to Martin, is not exhibited, but it is alleged by the bill and admitted by the demurrer, that it was not put upon record, nor filed for registration in the Recorder’s office, until after Woodward had conveyed the property to Fry, and that it was withheld from registration by direction of Street, for the purpose of enabling Woodward to sell the property to Ery.
Upon these facts Ery took the property under the conveyance from Woodward discharged of and unencumbered by the deed of trust from Woodward to Martin as trustee for the benefit of Street. Neal v. Speigle, adm’r., MS. and cases cited. Martin as such trustee had no legal right or power, as against Ery, to advertise and sell the property under the provisions of the trust deed.
It is true that Street had alien upon the property to secure the payment of the two notes, which lien was expressed in the face of, and reserved by his deed to Woodward, and in the deed from Woodward to Ery, the latter had assumed and bound himself to pay these notes at maturity, and it is true that he had failed to do so, and the notes were overdue when Martin advertised the property for sale under the deed of trust; but Street had no remedy as against Fry under the trust deed, either by causing the trustee to sell the property, or by bill in equity to foreclose the trust deed. He should have filed a bill in equity to foreclose and enforce the lien reserved in his deed to Woodward, and might have made Woodward as well as Ery, who had puichased the property and assumed the payment of the notes, a defendant. Or in this case, instead of demurring to the bill, he might have answered, and by cross bill, claimed a foreclosure of his lien.
The decree must be reversed, and the cause remanded to the court below for further proceedings, etc. | [
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EakiN, J.:
Appellant sued McDonald, and a number of other defendants, who had joined in the alleged purchase, from him, of certain shares of stock in the Little Rock Bridge Company; chartered by special act of the General Assembly March 5, 1867.
This act, by section 2, appointed commissioners to superintend the opening of books for stock subscriptions ; and also (when $30,000 should have been subscribed) to call a meeting for the purpose of electing five directors, to organize and conduct the affairs of the company. By section 4 it was made the duty of the President and Directors, upon the payment of the capital stock of the company, or any part thereof, to issue certificates of stock to the stockholders, specifying the number of shares to which each might, be entitled. These certificates were made transferable under such rules and regulations as the President and Directors might adopt.
The complaint set up four written obligations executed jointly by defendants, on the 14th day of January, 1873, for $1250 each; in favor of complainant, Woodruff; due respectively at 9, 15, 18 and 24 months. These notes, each, recited that they were given in part payment for the assignment and transfer to the makers, by Woodruff, without recourse, of his two hundred and fifty shares in the capital stock of the Little Rock Bridge Company.” Taken altogether, they provide that if default be made in the payment of the first, when due, all shall become payable and bear an increased rate of interest. Such default, it is alleged, was made ; and judgment demanded for the whole $5000, with interest as stipulated.
The answer of the defendants is lost; but it is here agreed to have been, substantially, the same as that set up in another case now submitted with this, and, so taken, would show, that they admitted the execution of the several agreements in writing, as alleged. But they denied that either of them had received any assignment or transfer of any shares of stock. They denied that complainant had subscribed for any shares of such stock, or had paid anything for them to the company, or in short, had any; and further denied any consideration for the notes. They charged fraud and misrepresentation upon complainant in claiming to own said shares, when that was false, and alleged that the certificates which complainant pretended to assign and transfer, and which purported to be for paid up stock, had in fact been issued by collusion between complainant and the Directors of the company, when nothing had been paid thereon.
The case was submitted to the court, without a jury, which found for the defendants, and rendered judgment against plaintiff for costs. Motion for a new trial overruled and appeal granted.
The bill of exceptions shows that the court found the following facts:
First — The passage of the special act of incorporation approved March 5th, 1867.
Second — A book purporting to be the record book of the company, showing that the original stock had been taken by plaintiff and others named, each taking $25,000 of eapital stock. The entry, to this effect, was in the handwriting of Peter Hanger, one of the Commissioners to open books, and signed by plaintiff and A. M. Woodruff, two others of said Commissioners. The subscribers of stock did not subscribe in this booh, but had affixed their signatures to a form of subscription on a loose paper, which had been kept in the book, and passed with the book into the hands of defendants, but was not now produced. There was no proof that the Commissioners were qualified as such.
Third — Certificates of stock were issued on the 30th of May, 1867, to those who were shown by the books to have been subscribers.
Fourth — A Board of Directors of said company was organized and proceeded to do business.
Fifth — No part of stock was ever paid in.
Sixth — The note in suit was given as part payment for a transfer of said stock. The defendants bought all of the stock at the same time, knowing that nothing had been paid on the subscription — and for the avowed purpose of getting the fi-anchise of the company. They paid for the whole in cash $2500, and gave notes for the remainder. The whole purchase price amounted to $25,000. The:certificates were regularly transferred at the time of the sale. The defendants expressed the intention to go on with the company, and did actually act afterwards in an assumed corporate capacity, but after a while ceased and allowed the privileges of the charter to expire.
Upon this state of facts plaintiffs asked the court to declare the law to be, that there was a consideration sufficient to uphold the contract sued on, and that the finding should be for the plaintiff. This the court refused to do, but found as a conclusion of law: “ That said company was never legally organized, that the said certificates of stock were void, and that there was a total want of consideration to uphold the notes sued on, and that the finding should be for defendants.” To this refusal and declaration, the plaintiff excepted, and, as no evidence is brought up, this is the only matter now presented to this court upon appeal.
It is the prevailing doctrine of the Federal and State courts, in some of which it is fixed b}r statute, and in most adopted as resting upon reason and sound principle, that the finding of a court sitting without a jury, is in the nature of a special verdict, and conclusive as to the facts of the case, where the evidence is not set forth in full and exceptions taken to the findings as not supported by evidence. This court has recognized this practice in the case of Obermier & Co. v. Carr, Thompson & Co., 25 Ark., 562.
The written obligations import a consideration, and upon the issues made, the burden was on defendants to show that there was none. See Richardson v. Comstock for authorities collected, 21 Ark., 69. Do the facts, as found, show that?
This is not like a case of an action by the company against a subscriber to enforce payment of his subscription. In such case, if there be anything so irregular, informal, defective, or illegal in the subscription, that the company itself would not be bound if it had chosen to repudiate it, it might perhaps be well contended that for want of mutuality the contract was void. Nor is this like a case of a proceeding against the company for an abuse of its powers, or for acting without power, or in an unauthorized manner. Such proceedings are on behalf of the State, and in many cases the State alone can proceed to have the acts of corporations declared void.
The question here is, did the defendants acquire by the contract any advantages they would not have had without it, or did the plaintiff suffer any inconvenience, detriment, or loss. In either case the consideration would be good, and in an action at law, its adequacy is immaterial.
It appears from the facts, found by the court, that the subscriptions were made and signed upon a loose sheet of paper, which was put in a bound book appropriated to the records of the company, and the contents of the paper, with names and amounts of the subscribers were entered in the book, by the Commissioners appointed to open books. This was a sufficient compliance with the statute. The subscriptions do not appear to be invalid, and the burden of showing that, if true, was upon the defendants.
The issuance by the company of certificates, .before any part of the subscription was paid in, was not expressly authorized by the act; and if it had been done by collusion between plaintiff and the officers of the company, without' the knowledge or assent of defendants, it would have been siich a fraud in the sale of the stock, as would have authorized the defendants, upon discovery of the facts, to rescind the contract, or to recoup the amount of the payments on the stock. That, however, would have been because of the fraud, and not strictly for want of consideration. It was not, strictly speaking, the certificates which the defendants purchased. Tt was the stocky and the certificates were only evidence that the holders were entitled to hold the stock and transfer it.
The company seems, voluntarily, and for its own convenience 5 and that of its members, to have issued these certifieates prematurely. We are not prepared to say from the facts that it did so fraudulently, or that its action therein was void. It was certainly done with the full concurrence of all parties interested, including these defendants, and, unless the State should complain, or some creditors, perchance, be misled, we see no reason for interference on the part of the courts.
The plaintiff, and all others of the subscribers, selling together and taking separate notes, or written agreements, denuded themselves of all rights they had as subscribers. These rights were valuable. They gave the subscribers the control of the franchise, which then, it is evident, was considered of great value. It enabled them to proceed and build a bridge over a large river at the capital city of the State, and take tolls, which might have been, and it was expected would be, very profitable. These advantages the vendors relinquished. If they had not sold them to defendants, they might have sold them to others, or gone on and built the bridge and taken tolls.
On the other hand, these advantages were acquired by the defendants, and so far as appears, fully enjoyed without let or hindrance from plaintiff or his original associates, or the State, or creditors of the company, or anyone else. The purchasers became the company, and for a while assumed to operate it. They knew the capital stock had not been paid in. If it were important that it should be, they had a right to pay it, and cure any defects. Whatever may have been the cause of their failure to avail themselves of the advantages acquired, the plaintiff is not shown to have had any agency in it.
Doubtless it turned out that the speculation was a bad one. We may presume that a change in the financial affairs of the community, or changes in the facilities otherwise afforded for crossing the river, caused the bridge to be abandoned. The money paid was a dead loss, and it is natural that the defendants should feel the hardship, and indulge the sentiment that their contract was without consideration. We think, however, that the court below erred in declaring that the facts as found, showed no consideration for the contract.
Let the judgment be reversed and the cause be remanded, with instructions to grant a new trial, and that the cause proceed in accordance with law, and not inconsistent with this opinion. | [
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ITarrisoN, J.:
This was an action in equity by Charles R. Coolidge, as surviving partner of the firm of IT. P. Coolidge & Co., against Hill, Fontaine & Co., Leonidas L. Johnson, George E. Johnson, Mathias C. Hall and John J. Horner.
The material averments of the complaint were : That Leon idas L. Johnson and George E. Johnson, on the 17th day of July, 1871, conveyed to John J. Horner, by their deed of that date, their several crops of cotton and corn then growing on their respective plantations in Phillips county; and the said George E. Johnson, the mules, farming implements and certain other personal property on his plantation ; and the said Leonidas L. Johnson also conveyed and transferred to him the following claims that had been probated and allowed by the court of probate of Phillips county against the estate of Thomas P. Johnson, deceased, and of which he was the assignee and owner, viz: Bartley, Johnson & Co.: for 113,427.97 ; Thomas W. Stoueman ; for $2,019.23, and J. W. Roberts ; for $487.50 ; but which were described in the deed as the claim of said Leonidas L. Johnson, probated against said estate, and in the hands of Tappan & Horner, in trust to secure to A. P. Coolidge & Co., their note to them of that date for $8,000, payable on the 1st day of December, 1871, and to bear ten per cent iutei’est after maturity; and the said Horner was, by said deed, empowered, if the note was not paid at maturity, to take possession of the property so conveyed, and after giving twenty days notice by publication- in some newspaper printed in said count}'', to sell the same, including said claims, at the court house door in Helena, at public auction for cash, for the pay ment thereof: which deed Avas, on the 18th day of July, 1871, duly acknowledged and recorded.
That the Probate Court of said county, at the November term, 1871, made an order for the sale of the lands owned by •said Thomas P. Johnson, at the time of his death, for the payment of his debts ; which lands were particularly described in the complaint, and of which there were 1,708 acres; and in pursuance of the order, Barty Turner, the administrator of said Thomas P. Johnson’s estate, on the 15th day of January, 1872, offered the same for sale, and they were bid off and purchased by the said Mathias C. Hall and Leonidas L. Johnson— an undivided three-fourths part by Hall, and an undivided one-fourth part by Johnson — for the sum of $10,000.
That said Hall and Leonidas L. Johnson were the only creditors of Thomas P. Johnson’s estate — Hall holding three-fourths of all the indebtedness, and Johnson one-fourth — Johnson’s part consisting of the claims before mentioned; and that they paid no money on their purchase, but gave in payment thereof receipts and acquittances to the administrator for their claims — the estate paying but a pro rata thereon of fifteen and one-third per cent — and that the administrator on the same day executed a deed for an undivided three-fourths part of the lauds to Hall, and for an undivided one-fourth part to said Leonidas L. Johnson.
That to such use of the claims, H. P. Coolidge & Co., gave no consent, and were ignorant of the fact that they were so used until some time afterwards.
That Hill, Fontaine & Co., on the 23d day of May, 1872, recovered judgment against GeorgeE. Johnson and Leonidas L. Johnson in the Circuit Court of Phillips county for $1,838.38, upon which they afterwards sued out an execution and caused it to be levied on Leonidas L. Johnson’s undivided part of the lands, which, was sold thereunder by the sheriff, and it was bid off and purchased by said Hill, Fontaine & Co., for $11,000, and the sheriff afterwards, on the 10th day of November, 1873, executed to them a deed for the same.
That there remained due on the note $5,098.57, with interest from the 1st of April, 1874.
And that Henry P. Coolidge, who, with the plaintiff, composed the firm of H. P. Coolidge & Co., was dead.
The complaint prayed that a lien should be declared in favor-of the plaintiff on the undivided part of the lands purchased by Leonidas L. Johnson at the sale by the administrator of' Thomas P. Johnson, to the same extent and with like object and effect as that secured by the deed of trust upon the claims.
Hill, Fontaine & Co, filed a demurrer to the complaint, upon the ground that it did not set forth or show a cause of action, which, was overruled. They then filed an answer, and admitted everything alleged in the complaint, except that the claims were conveyed and transferred to Horner in the deed of' trust, which, they denied.
The other defendants made no defense.
The cause was heard upon the complaint and the exhibits-therewith, the answer of Hill, Fontaine & Co., and the sworn statement of James C. Tappan, admitted by consent, as a deposition in the cause, subject to proper objections for want of' relevancy or competency..
The clause in the deed of trust in respect to the conveyance- or transfer of the claims, is as follows :
‘‘And the said Leonidas L. Johnson also hereby conveys to-the said party of the second part, Ms claim probated against the estate of Thomas P. Johnson, deceased, and now in the hands of Tappan & Horner.”
The statement of James C. Tappan was : That he drew the-deed of trust, and that the property described in it as “his claim. probated against the estate of Thomas P. Johnson, deceased,, and now in the hands of Tappan & Horner,” were the allowances against said estate in favor of Bartley, Johnson & Co.,, Thomas W. Stoneman and J. W. Roberts, mentioned in the; complaint, which had been before assigned in writing to Leonidas L. Johnson, and were then in their (Tappan & Horner’s); hands for collection, and were the only claims against said! estate in their hands, in which Leonidas L. Johnson had any interest.
That the order for the sale of the lands was obtained by him, and he attended the sale ; and that he gave for Leonidas-L. Johnson a receipt for the pro rata sum due on the claims,, to the administrator, and the receipt and satisfaction of the claims was all the consideration paid by Leonidas L. Johnson in his purchase.
The court, upon the hearing, found that it was the intention of the parties to the deed of trust, that Leonidas L. Johnson should, and that he did, thereby convey and transfer the claims to Horner, and decreed that a lien upon the undivided fourth part of the lands resulted from Leonidas L. Johnson’s purchase thereof with the claims in favor of the plaintiff, and now exists to the same extent and with like effect as that created by the deed of trust upon the claims.
Hill, Fontaine & Co. appealed.
It is conclusively shown by the evidence of Tappan, that the claims for which Leonidas L. Johnson receipted in the purchase of the lands, and which constituted' the sole consideration, were included in the deed of trust, and it follows as a very clear proposition, that a trust in favor of H. P. Coolidge & Co., attached to the lands or the undivided part so purchased.
Judge Story says ; “Wherever the property of a party has been wrongfully misapplied, or a trust fund has been wrong fully converted into another species of property, if its identity can be traced it will be held in its new form liable to the rights of the original owner or cestui que trust. The general proposition which is maintained both at law and in equity upon this subject is, that if any property in its original state and form is covered with a trust in favor of the principal, no change of that state or form can divest it of such trust, or give the agent or trustee converting it, or those who represent him in right, (not being bona fide purchasers for a valuable consideration without notice) any more valid claim in respect to it than they respectively had before such a change.” 2 Story’s Eq. Jur., Sec. 1258; Ib., 1201; Bisph. Eq., Secs. 80, 86; Adam’s Eq., 142, 143; Osborne v. Graham, 30 Ark., 66.
But it is contended for'the appellants, that though, as be tween the parties to the deed of trust parol evidence might be offered to explain it, and show what property was conveyed, as to others such evidence was inadmissible, and the evidence of Tappan for that purpose should have been excluded from the consideration of the court, and that the deed of trust, so far as it related to the claims, was as to them void for uncer- ' tainty.
To this it may be answered that they purchased at their own execution sale, and therefore were not, nor do they claim to have been, innocent purchasers; and no question as to notice arises in the case.
Whether the deed was uncertain or not was no matter of theirs; they stood upon no better ground than Leonidas L. Johnson did, and hold the lands, as he did, charged with the trust.
The decree is affirmed. | [
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ENGLISH, C. J.:
O.i the 8th of June, 1875, Campbell & Strong filed a bill in the Circuit Court of Dorsey county against Joseph J. .Savage- and wife, and P. W. Deadwiler, to foreclose a mortgage.
The bill alleges, in substance, that on the 13th of May, 1872,. Joseph J. Savage made a note to complainants for $3,951.45,. payable at their office in New Orleans, on the 1st of January,. 1873, with ten per cent interest from maturity.
That to secure the payment of this note, Savage and wife, America Elizabeth, on the 15th of May, 1872, executed to complainants a mortgage upon certain lands, which are described, then situated in Lincoln county, where the mortgage was; recorded, but now in Dorsey county.
That defendant, Deadwiler, was in possession of the lands, claiming some interest therein as purchaser, mortgagee or tenant.
That no part of the debt or the interest had. been paid»
Prayer for decree against Joseph J. Savage for the debt and interest and expense of foreclosure, which was provided for in the mortgage, and that the lands be condemned and sold by a, commission to satisfy the decree.
Subpoenas were issued on the filing of the bill, returnable to the following fall term of the court, which were served upon the defendants, but none of them made any defense.
At the return term, on the 6th of October, 1875, Curtis B.. Attwood applied to the court to be made a defendant to the-bill, and to file an answer and cross-complaint.
On the next day the motion was heard, and against the objection of the complainants, granted, and the answer and cross-bill were filed, a receiver appointed to take charge of the lands,, and rent them out for the year 1876, and the cause was continued with leave to the complainants to amend their bill by the first day of the next term of the court.
The answer and cross-bill of Attwood set up tax deeds for most of the lands embraced by the mortgage, and alleged that defendant, Deadwiler, was in the occupancy of the lands as. tenant of Attwood.
In the transcript before us there is a hiatus from the September term, 1875, to the September term, 1876, no orders or entries appearing to have been made in the cause at the spring term, 1876.
On the 8th of September, 1876, complainants filed a motion to transfer the cause to the Circuit Court of the United States, for the Eastern District of Arkansas, which was stricken from the files, on motion of counsel for Attwood. Whereupon complainants filed a demurrer to the cross-complaint, which was argued, and by the court, overruled. “Thereupon complainants immediately made application to file their answer to the cross-bill on to-morrow morning, which was objected to by defendant, Attwood, for the reason that plaintiffs were required by the court to file their answer on or before the first day of the last term of this court; and on consideration, said application •was rejected by the court, to which ruling, plaintiffs excepted.”
Thereupon plaintiffs filed their tender to Attwood of moneys paid out by him for the lands claimed in his cross-bill, and also filed their motion to dismiss the suit, which was overruled by the court.
Thereupon, complainants making no further appearance, the 'court rendered a decree in their favor against defendant, ■Joseph J. Savage, for the debt and interest secured by the mortgage, and foreclosed the mortgage as to several tracts of land not embraced in Attwood’s tax deeds, and ordered them sold •by a commissioner, etc., and decreed the remaining lands covered by the mortgage, with the rents in the hands of the receiver, to Attwood.
Campbell & Strong appealed to this court.
I. The tax deeds exhibited with the cross-bill are dated subsequent to the execution of the mortgage; most of them are auditor’s deeds, and all of them were procured by Attwood in the years 1873-4-5.
Appellants might have made him a defendant as a pui’chaser subsequent to the execution of the mortgage, and it would have been the better practice for them to have done so to prevent litigation with him in another suit, and to make a clear title under foreclosure, decree and sale of the lands. Bliss on Bode Practice, p. 101.
It was proper for the court to permit him to become a •defendant, and file an answer and cross-complaint, on the showing made by him that he claimed title to most of the lands, and that his tenant was in the occupancy of the lands and had refused to pay him rent because he was made a defendant to the suit to foreclose. Gantt’s Dig., Secs. 4476, 4482. This case differs from Files v. Files, 28 Ark., 151.
II. The court permitted appellants to file a demurrer to the cross-complaiut, and after the demurrer had been argued, submitted and overruled, we can see no good reason why the court should have refused appellants the privilege of answering the cross-complaint, and showing, if they could, that any or all of the tax deeds relied on by Attwood were invalid.
The record does not show that the court had in fact made •an order at the term the cross-bill was filed, for the appellants to answer it at the next term.
The entry was that the cause be continued, with leave to ■appellant to amend their bill. If the court made an order for them to answer by a particular time, the record should have shown it. The statement of counsel that such order had Been made as a reason why the court should not permit an answer to be filed, amounts to nothing in the -absence of a showing of record that such an order had Been made. ' Record entries made at the time orders ■are made bjr the court, are the proper memorials of such 'orders, and not the memories of counsel, however good. If an 'order is in fact made, and not entered at the time, it may afterwards be entered, on a proper showing, nunc pro tunc.
True, the court had a discretion in the matter of the time of ■filing the answer, but having permitted the demurrer to be filed, and thereby treated the cross-complaint as open for •defense, we can see no good reason why the answer might not have been filed on the overruling of the demurrer. The proper judgment on overruling the demurrer was respondeat ouster.
So much of the decree as was in favor of appellee, Attwood, ■on the cross-matter, must be reversed at his costs, and the 'cause remanded with instructions to the court below to permit appellants to answer the cross-complaint, etc. | [
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English, Ch. J. :
On the 25th of January, 1875, William J. Martin, an infant, by his next friend, Mary E. Martin, brought an action of replevin before a justice of the peace of Marion County, against John P. Phipps, for a bay mare with a star in her forehead, a bay Alley with a white hind foot, and a dark bay mule colt. The Alley and mule colt were offspring of the mare.
There was a jury trial before the justice, and the jury could not agree upon a verdict. When the case was called for trial again, it was dismissed for want of jurisdiction, on motion of the defendant, and plaintiff appealed to the Circuit Court.
The case was tried in the Circuit Court by a jury, the defendant relying for defense on the three years statute of limitations, and a general denial of plaintiff’s cause of action the verdict was for plaintiff, motion for a new trial overruled, Anal judgment on the verdict, bill of exceptions, and appeal by defendant.
The grounds of the motion for a new trial were :
First — Verdict contrary to-law, evidence and the instructions of the court.
Second — Court erred in refusing to permit Nancy Phipps, wife of defendant, to testify in his behalf.
Third — Court erred in giving the 3rd, 4th and 6th instructions moved for plaintiff.
Fourth — Court erred in refusing 7th and 8th instructions asked for defendant.
Fifth — Judgment contrary to law, etc.
1. The form of the verdict was: “We the jury find for the plaintiff in all the material issues, and we find the bay mare worth $60, the filley $50, and the mule $25.”
The judgment was for the property, or if not delivered, its value as found by the jury.
The verdict and judgment were substantially in good form.
On the trial, Ann Jones, the widow of William Jones, and the mother of Mary E. Martin, plaintiffs next friend, and the grand mother of plaintiff, and also the mother of Nancy Phipps, wife of defendant, testified in substance, that plaintiff William J. Martin, wa,s fourteen years of age in March, 1875. That William Jones, her husband and grand father of plaintiff died about the last day of May, 1871, and on the last Saturday before his death, he gave the bay mare in controversy, to the plaintiff. That her husband had owned and raised the mare from her folding, and had never sold or given her away before he gave her to plaintiff. That he deeded her to plaintiff, and at the same time pointed out the mare where she was standing near the yard, and when he was lying in bed.
That her daughter Nancy, who married defendant Phipps, never owned the mare, but defendant obtained possession of the mare, after he married Nancy, and after the death of William Jones, and claimed her ever afterwards. That the filley and mule colt were the offspring of the mare after she went into possession of defendant.
The testimony of Ann Jones, was corroborated by that of Mary E. Martin.
The plaintiff also introduced a deed of gift for the mare executed to him by his grandfather, William Jones, dated' 26th May, 1870, duly acknowledged and recorded.
The defendant proved declarations of William Jones, conducing to show that the mare belonged to his daughter Nancy, while she lived .with her father, and before she married defendant.
The evidence as to the title of the mare was conflicting, but the question of ownership was fairly submitted to the jury, under the instructions of the court, and their verdict was not without evidence to sustain it.
2. The defendant offered to introduce his wife, Nancy, as a witness in his behalf, and to prove by her that the mare in controversy belonged to her while she lived with her father, and when she married defendant, but the court excluded her as an incompetent witness for her husband.
This ruling was in accordance with the decision of this court, in Collins v. Mack, 31 Ark., 684, where the subject was fully discussed.
3. The 3rd, 4th and 6th instructions, given by the court on behalf of plaintiff, against the objection of defendant are as follows:
“(3). You are instructed that the statute of limitations does not run against the plaintiff in this suit, if you find from the evidence that he was a minor under the age of twenty-one years at the commencement of the suit.
“(4). You are instructed that the Alley and mule in controversy, are the property of the legal owner of the bay mare in question, if you find from the evidence that the said mare is the mother of said Alley and mule.
“(6). - A mere declaration that property belongs to another made by the owner, does not confer the title, though it may be some evidence of it.”
Three years is the limitation to the action of replevin. (Gantt’s Digest, Sec. 4120; Ford v. Ford, 22 Ark., 135) but Sec. 4130, Gantt’s Digest, makes an exception in favor of infants, and it was proven that plaintiff was an infant when the suit was commenced, hence the court did not err in giving the third instruction moved for plaintiff.
The fourth instruction was also properly given. The filley and-the mule being the offspring, or increase of the bay mare in controversy, followed her condition as to ownership. Partus Sequitur Ventrera. The brood of an animal belongs to the •owner of the dam. Burrill’s Law Die.
The sixth instruction was doubtless given in relation i o the declarations of William Jones, introduced in evidence by defendant, that the mare belonged to his daughter Nancy. These declarations appear to have been made before the execution, by William Jones, of the deed of gift to plaintiff, and were competent evidence, but not conclusive.
4. The seventh and ninth instructions moved for defendant and refused by the court, follow ;
“(7). If the jury find from the evidence that plaintiff neglected or failed to commence his suit for over three years from the time his right of action accrued, they must find for defendant.
“(9). If the jury find that the bay filley and mule colt have been bred and raised by the defendant, while the dam was in his lawful possession, the plaintiff cannot recover for them.”
Both of these instructions were properly refused by the court, as above shown.
Affirmed. | [
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Harrison, J.:
The appellee recovered judgment in the Court of Common Pleas of Prairie county, at the April term, 1877, against appellants for the sum of $107. Appellants made no motion for an appeal, and none was granted at the term ; but they filed with the clerk, in vacation, and within thirty days after the judgment was rendered, an affidavit and bond for an appeal, and he transmitted the original papers, with the affidavit and bond and a certified transcript to the clerk of the Circuit Court, as in cases Of appeal.
The Circuit Court, on motion of the plaintiff, dismissed the ■case because no appeal had been taken.
The defendant appealed to this court.
It is insisted that an appeal to the Circuit Court was properly taken; that section 17 of the act of December 14, 1875, establishing Courts of Common Pleas in Prairie and certain other counties, provides two modes of taking an appeal from the Court of Common Pleas to the Circuit Court; — one as a matter of right upon a motion filed therefor at the term at which judgment was rendered, and the other, as was done in this case, by filing the affidavit and bond with the clerk, and without any action of the court.
The section is as follows :
“Sec. 17. That any person aggrieved by any judgment rendered by any of said courts, except a judgment of dismissal for want of prosecution, may, in person or by agent, take an appeal therefrom to the Circuit Court of the county upon complying with the following requisites :
‘ ‘First — The appellant or agent shall make and file with the clerk an affidavit that the appeal is not taken for the purpose of delay, but that justice may be done.
“Second — The appellant, or some person for him, together with one or more securities, to be approved by the clerk, must enter into an obligation to the adverse party in a sum sufficient to secure the payment of such judgment and the costs of appeal .
‘ ‘ Third — The appeal shall be granted by the court as a matter of right, upon motion filed at the same term of the court at which the judgment was rendered ; and the entering of the order granting the appeal shall be a sufficient notice to the adverse party that an appeal has been taken.
“Fourth — In order to malee the appeal effective, the affidavit and bond for the appeal must be filed with the clerk within 'thirty days after the appeal is granted; and upon the filing of said affidavit and bond, all further proceedings in said court shall be suspended; provided, that either party may appeal without giving any bond ; but in such cases the judgment shall not be suspended.”
The language of the section is too plain and explicit to require or admit of any construction. Obviously there is but •one way of taking an appeal provided, and it must be moved for and taken at the term at which the judgment is rendered.
The Circuit Court having acquired no jurisdiction of the •case, it was properly dismissed.
Judgment affirmed. | [
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ENGLISH, C. J.:
James Clary, George Hall and Charles Hall were indicted in the Circuit Court of Pulaski county for burglary and robbery. On the first count, which charged them with breaking and entering a railroad car in the night time with intent to commit .a felony, they were acquitted. They were found guilty on the .second count, and the jury fixed their punishment severally at imprisonment in the penitentiary for seven years and six months. They filed a motion in arrest of judgment, which the ‘Court overruled.
On motion of the prosecuting attorney, and upon a showing made to the court (not disclosed by the record) the court reduced the punishment to five years imprisonment and sentenced them according^. They prayed an appeal, which was .allowed by one of the judges of the court.
The second count of the indictment upon which appellants ■were convicted is literally as follows :
ji‘The grand jury aforesaid, in the name and by the authority of the State of Arkansas, accuse said James Clary, Charles Hall and George Hall of the further crime of robbery committed as follows: The said James Clary, Charles Hall and George Hall, on the 4th day of November, 1878, in the county of Pulaski, and State aforesaid, feloniously and wilfully did make an assault upon one James Fisher, in bodily fear and •danger of his life then and there feloniously and wilfully and one pair of boots worth six dollars, one pair of shoes worth four dollars, a lot of painting tools to-wit: ten worth three dollars each, one valise worth six dollars, one hat worth four dollars, one pistol worth ten dollars, all the property of said Janies Fisher, then and there feloniously, wilfully and violently did seize, take and carry away with intent from the person of the said James Fisher, the said property from the said .James Fisher to rob and steal, against the peace and dignity of the State of Arkansas.”
The grounds of the motion in arrest were, that the facts alleged in this count did not constitute a public offense, etc., and that the allegations in the count did not constitute the offense .attempted to be charged.
It is submitted by the Attorney-General, that though the •count may not be good under the common law definition of robbery, it charges every material fact necessary to constitute robbery under our statute.
Robbery, the rapiña of the civilians, is the felonious and forcible taking from the person of another of goods or money to any value, by violence or putting him in fear. The taking must be either directly from his person or in his presence to make it robbery. It is immaterial of what value the thing taken is. A penny as well as a pound thus forcibly extorted makes it robbery. The taking must be by force, or a previous putting in fear, which makes the violation of the person more atrocious than privately stealing, for, according to the maxim of the civil law, qui vi rapuit, fur improbior esse videtur. This previous violence or putting in fear is the criterion that distinguishes robbery from larceny; for if one privately steals six-pence from the person of another, and afterwards keeps it by putting him in fear, this is no robbery, for the fear is subsequent, etc. Not that it is in deed necessary, though usual, to lay in the indictment that the robbery was committed by putting in fear ; it is sufficient if laid to be done by violence . And when it is laid to be done by putting in fear, this does not imply any great degree of terror or affright in the party robbed ; it is enough that so much force or threatening by word or gesture be used as might create ah apprehension of danger,, or induce a man to part with his property without or against his consent. Thus, if a man be knocked down without previous warning and stripped of his property while senseless » though strictly he cannot be said to bq pul in fear, yet this is undoubtedly a robbery. 4 Blackstone’s Bom., 243-4.
Robbery, says Mr. Archbold, is- defined to be a felonious-taking of money or goods from the person of another, or in his presence, against his will, by violence or putting- him in fear. And this violence or putting him in fear must precede- or accompany the stealing. (In note.) The words of the definition of robbery are in the alternative, “violence orputting-in fear,” and it appears that if the property be taken by either of these means, against the will of the party, such taking will be sufficient to constitute robbery. The principle, indeed, of robbery is violence, but it has been often holden, that actual violence is not the only means by which a robbery may be effected, but that it may also be effected by fear, which the law considers as constructive violence. 3 Arch, Cr., Prac. and Plead. 417, 418, 6 Ed.
By Statute: — “Robbery is the felonious and violent taking of any goods, money, or other valuable thing from the person of another by force or intimidation ; the manner of the force» or the mode of intimidation, is not material, further than it may show the intent of the offender.” Gantt’s Digest, sec. 1329.
The statute substitutes the word “intimidation” for the words ‘ ‘putting in fear’ ’ used in the common law definition of rob bery, but the definitions are substantially the same, the statute making no material change.
The Attorney-Gfeneral further submits that though the count in question may bo bad under the common law form of indictment for robbery, yet it may be good under the criminal code.
The following is a common law precedent:
“Barry (to-wit).: The jurors for our lord the King, upon their oath present, that A. O. late of etc. or etc., with force and arms, at etc., then and there in and upon one A. J., in the peace of Gfod and of our said lord, the King, then and there being, feloniously did make an assault, and him the said A. J. in bodily fear and danger of his life then and there feloniously did put, and one gold watch, of the value of eighteen pounds of the goods and chattels of him the said A. J., from the person and against the will of the said A. J., then and there felo-niously and violently did steal, take and carry away, against .the peace of our said lord, the King, his crown and dignity.” 3 Chitty, Cr. L., 577, 806. 3 Arch. Cr. Prac. and Plead., (6 Ed.) 117.
Under the code the indictment may be substantially in the following form, after stating the court and parties in the caption : “The grand jury of Pulaski county in the name and by the authority of the State of Arkansas, accuse George Smith of the crime of (here insert the name of the offense) committed as follows, viz. : The said George Smith, on the-day ■of-, in the county aforesaid (here insert the acts constituting the offense) against the peace and dignity of the State of Arkansas.”
It must be direct and certain as regards the party charged, the offense, the county, and the particular circumstances of the offense charged, where they are necessary to constitute a ■complete offense, etc., etc. Gantt’s Digest, secs. 1775 to 1779.
A code indictment is the substance of the modern common-law indictment. Barton v. The State, 29 Ark., 69.
Doubtless the count in question was drafted hastily and in the press of court business. Its allegations as to the offense charged are confused and uncertain, and it falls below the standard of good common law or code pleading.
No doubt the intelligent prosecuting attorney who hurriedly drafted the count, could now deliberately make it a good charge for robbery, by adding some words, transposing parts, of sentences and'striking out parts of others, but he could not, neither can we, so alter an indictment after it is returned into court by the grand jury.
It is further submitted by the Attorney-General that if the count be bad for robbery it may be good for larceny.
Mr. Chitty says, if in the trial, it should appear that any of the circumstances of robbery are wanting, but the taking is proved, the defendant may be acquitted of the aggravated offense and foundguilty of simple larceny. 3 Ohitiy, Cr. L. 806..
But that ought to be on a good count for robbery.
Perhaps on a trial for robbery, if the State fail to prove that the goods were taken from the person of the party charged to have been injured by putting him in fear, or by intimidation,, or by violence, and proves that the goods were taken from his person, or presence, furtively, the accused might be convicted! of larceny. But in this case the appellants were indicted, tried, convicted and sentenced for robbery, on a count which we cannot approve as valid for any offense without degrading the standard of good criminal pleading, and setting a precedent to encourage unwarrantable looseness.
The judgment must be reversed, and the cause remanded with instructions to the court below to hold appellants to answer a new indictment, but not for the burglary of which they were acquitted in this case. | [
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English, C. J.:
The County Court of Desha county, at its July term, 1876, made an order calling in the outstanding warrants, etc., of the county, requiring holders to present them at the January term.' following.
Within the time prescribed by the order, C'.. CL Newman, filed for examination, cancellation and re-issuance, thirty-two» warrants issued to him prior to the date of the calling order upon allowances, in his favor, amounting;' in the aggregate to* the sum of $1,798.75.
The couib at its January term, 1877, proceeded to examine the warrants filed by Newman, the accounts and orders upon which they had been issued, and found and decided that all ■of the warrants, except for the sum of $176.25, had been 'issued contrary to law and without consideration, and rejected them, and directed the clerk not to re-issue them ; and Newman •excepted and appealed to the Circuit Court.
The matter was heard anew in the Circuit Court and judgment rendered, ordering the clerk of the County Court to renew all of the warrants filed by Newman. A new trial was irefused the county, and it took a bill of exceptions and appealed ;to this court.
On the .trial Newman read in evidence the following order of the County Court, made 15th of May, 1875 :
“On this day the court, on its own motion, doth order that the '■clerk hereof furnish the justices of the peace of Desha county •any suitable blanks now in his office, and to purchase any ’blanks ¡needed by justices, if the same can be purchased for Desha county scrip.”
Also read in evidence the following account filed in the 'County'Court by him, verified by affidavit and the orders of •allowance thereon.
JL. An account for printing marriage license's and •bonds allowed 28th of April, 1875, for.$ 16 25
;2. An .account filed Sept. 29, 1875, for publishing .liatiof allowances. 202 50
.And for printing 1,140 quires magistrates’ blanks, as ;per «order, at $1 per quire. 1,142 50
The two items of this account, making $1,342.50, were ¡allowed October 5, 1875, and the clerk ordered to draw warrants -.upon the Treasurer for the amount, and the court further ordered that all justices wanting blanks might apply to the clerk for the same and should pay therefor $1 per quire, and it was made the duty of the clerk to report to each termi of the court the amount of money collected by him for the-sale of said blanks, and to publish the order, etc.
3. An account for-printing constables’ and justices’ blanks.$ 40 00-
And for printing Circuit Court blanks. 190 00-
This account was also allowed and warrants ordered October 5, 1875.
4. An account for printing blanks, etc., kind not named, allowed and warrants ordered April 4, 1875, for.$ 210 00'
The total allowance being for- $1,798.75, which was the-aggregate amount of the warrants presented by Newman under the calling order.
The attorney for the county offered to prove that the justices’ and constables’ blanks charged in the several accounts-for which allowances were made and warrants issued thereon,, had not in fact been received by the county.
Also that no appropriation had been made, nor any taxes-levied for the purchase of justices’ and constables’ blanks.
The court ruled the evidence inadmissible.
On behalf of the county the following declarations of law were moved.
“1. That when the County Court finds, upon calling in the county scrip, that certain scrip has been issued upon allowances made by the former orders of the court, for blanks that-the county was not legally empowered to purchase, the court may legally cancel such scrip and refuse the issuance of other-in lieu thereof.
“2. The County Court was not empowered by law to purchase blanks for which no appropriation had been made and no tax levied by the County Judge and justices in County Court assembled.
“3. Thut the County Court bad no authority, by law, to purchase the justices' and constables’ blanks in this cause mentioned.”
Which the court refused, but declared the law to be as follows :
“1. Where scrip has been regularly issued in accordance with an allowance regularly made by the County Court, the consideration for such scrip cannot be inquired of in a proceeding to call in and re-issue the scrip of the county under the provisions of Secs. 614, 615, 610, Gantt’s Digest.
“2. An allowance of an account in favor of a creditor of the county by the County Court, upon a claim regularly presented to it, is a judgment of such court, and such judgment cannot be disregarded, held for naught or inquired into under this proceeding.
“3. Scrip issued under a regular allowance of the County Court is not, in contemplation of law, scrip illegally issued.”
The contest on the trial in the Circuit Court seems to have been in relation to the allowances for blanks for justices and constables, and the warrant issued thereon.
It appears that there was an allowance, 5th of October, 1875, of $1,142.50, for blanks for justices ; and an allowance as of the same date of $40, for blanks for justices and constables, making together $1,182.50. Deduct this sum from $1,798.75, the amount of all of the allowances and warrants, and the remainder is $616.25, for which appellee was entitled to have renewed warrants, nothing appearing to the contrary in the record before us, and to that extent the judgment of the Circuit Court was right.
We do not find that there was ever any statute requiring or authorizing County Courts to furnish printed blanks to constables at the expense of the public.
Nor that there was at any time a statute authorizing County Courts to procure aud supply justices of tbe peace with printed blanks.
An act of July 25, 1868, (Acts of 1868, p. 337), required each justice of the peace to keep as his dockets, two good and substantial leather-bound books of at least eight quires each, ■ and to procure all necessary blank forms and stationery for -his office. Sec. 1.
And it was made his duty to make out an account for ■all records, blank forms aud stationery that might be necessary for his office, and to certify that such account was true and correct, and that the articles therein mentioned were necessary .for his office, and to submit the same to the County Court, which was required, if the account was found correct, to order the same to be paid out of the county treasury. Sec. 2.
By act of 28th March, 1871, (Acts of 1871, p. 312), the above act was repealed ; and it was made the duty of the County Court, upon the application of any justice of the peace, to furnish him with two good and substantial leather-bound books of at least six quires each, to be used as civil and criminal dockets ; provided, that he had none and was not entitled to receive them from his predecessor in office. See Gantt’s Digest, Sec. 3710.
The repeal of the act of the 25th of July, 1868, and the provision in the repealing act for furnishing justices of the peace with dockets only, was equivalent to an expression of legislative will that justices should not thereafter be furnished with blank forms and stationery at public expense.
It follows that the allowances by the County Court in favor of appellee for printing blanks to be furnished by the clerk to justices of the peace were illegally made. In other words, the court had no authority or discretion to make such allowances.
The allowance by the County Court of a claim against the ■county in favor of the claimant is in the nature of a judgment. Jefferson County v. Hudson, Sheriff, 22 Ark., 595.
As a general rule the County Courts, like the Circuit Courts, 'have no power to set aside, vacate, modify or disregard their .judgments after the close of the term at which they are ren■dered. Reiff et al. v. Conner et al., 10 Ark., 241.
But by statute the Circuit Courts are authorized in specified ■cases to vacate or modify their judgments after the expiration •of the term, at which they are rendered, and this court has •not doubted.the constitutional power of the Legislature to give them such control of their judgments in the cases, and for the •causes indicated in the statute. Badgett v. Jordan, 32 Ark., 157.
Warrants upon the county Treasurer (commonly called ¡scrip), are issued upon, and for the payment, of allowances made by the County Court. Gantt’s Digest, Sec. 600, 606, .Act of 1875, p. 51, etc.
The statute empowers the County Courts as often as once in three years to call in all out-standing warrants, to examine and ■cause them to be renewed if legally issued, and if not to reject them. Gantt’s Digest, Secs. 614, 616, 611, Acts of 1875, p. 13.
Thus the Legislature has empowered County Courts to review allowances made at previous terms, and if made without •authority of law, to reject warrants issued upon them, and also to reject warrants otherwise illegally or fraudulently issued.
Warrant holders take them subject to the exercise of such power by the County Courts, the statute conferring the power being the law of the contracts. Parsel v. Barnes & Bro., 27 Ark., 261.
The allowances in favor of appellee for magistrates’ blanks are not attacked collaterally, but in a direct proceeding to review them authorized by statute.
But in suits upon warrants, where allowances have been collaterally attacked, it has been held that it may be shown as matter of defense, that the allowances have been made contrary to law.
In Shirk v. Pulaski County, 4 Dillon, 209, the suit was. upon warrants issued upon allowances made for five and ten times the value of the claims, in violation of law, and Mr., Justice DilloN, after reviewing and citing many authorities, said : ‘ ‘ The true rule is this: within the' limits of their-power, as conferred by statute, the action of the County Court in determining the amount due a creditor of the county, in the-absence of fraud, or, perhaps mistake, binds the county; but. the Couuty Court cannot bind the county by ordering a claim to be paid which is not made a county charge by statute, or-by allowing more than the statute distinctly limits, or by an. allowance in the face of a statutory prohibition.”
“Any other principle,” (he adds) “would ruin municipalities and counties ; and the danger which would result from it is well exemplified in this case, where ten dollars have been allowed for one, and where, it is said, the officers of the-defendant, county, have in this manner issued $400,000 of' warrants within a few years, which are yet outstanding.”
The Circuit Court erred in directing the County Court to-issue to appellee warrants in renewal of such of his warrants as were issued upon allowances for blanks for justices of the-peace and constables.
If, however, the clerk sold blanks furnished by appellee, as-directed by the order of the County Court, of the 5th of October, 1875, and paid the money into the county treasury, it is but just that appellee should- have an allowance and warrant for the amount so received for blanks furnished by him, and if' any blanks remain unsold, they should be returned to him.
The judgment must be reversed and the cause remanded to-the Circuit Court, with instruction to it to issue a mandate to-the County Court in accordance with this opinion. | [
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ENGLISH, C. J.:
On January 4, 1876, Wm. P. Jackman sued John Anderson in the Cii’cuit Court of Chicot county, on an open account for rent of land, a mule, supplies, etc., amounting to $319.93, and obtained an attachment upon an affidavit that defendant was about to sell, convey or otherwise dispose of his property with the fraudulent intent to cheat, hinder or delay his creditors, and to deprive the plaintiff of his lien for rent. The writ was general against the goods and chattels, lands and tenements of defendant.
The sheriff returned upon the writ that he levied upon what he supposed to be eight or ten bales of lint cotton in the gin house of Carlton & Jackman.
At the return term the defendant filed a sworn denial of the truth of the plaintiff’s affidavit. The issue was submitted to a jury at the January term, 1877, who, upon the evidence adduced by the parties, returned a verdict in favor of the defendant, and assessed his damages at $20; then follows this entry:
“ It is therefore considered, ordered and adjudged that the sheriff return the property attached, or the proceeds thereof, to the defendant herein, and that the defendant go hence without day, and that he recover from the plaintiff, and John Neal and C. H. Carlton, sureties on the attachment bond, the sum of $20 besides his costs in this suit in this behalf expended ; to which order of the court in requiring the sheriff to return the property attached, or the proceeds thereof, to defendant, the plaintiff excepted, and prayed an appeal to the Supreme Court, which is granted.”
The only question presented on this appeal is whether the court erred in ordering the sheriff to restoi-e the propei’ty seized under the attachment to defendant, on the veidict of the jury that the attachment was wrongfully sued out, and upon the judgment of the court thereon discharging the attachment.
It necessarily follows that the property must be restored to the defendant upon such discharge of the attachment. Delano et al. v. Kennedy, 5 Ark., 459. The process in rem under which the property is seized into the custody of the sheriff being in effect abated or quashed by the judgment of the court dischai'ging the attachment, the sheriff has no longer any legal authority to hold the property. Gantt’s Digest, sec. 459; Acts of 1875, p. 7.
It seems from the above entry that the court on dissolving the attachment discharged the defendant personally from the action, but such we presume could not have been the intention of the court as the defendant had' put in an answer to the mei’its of the action which remained to be tided when the appeal was taken.
Affirmed. | [
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ENGLISH, C. J. :
The indictment in this case contains two counts, the first count charging F. C. Dodd with burglary, and the second count chai’ging him with larceny.
The substance of the first count is as follows :
“The grand jury of Pulaski county, etc., accuse F. C. Dodd of the crime of burglary, committed as follows, viz.: The-said F. C. Dodd, on the 17th day of December, 1877, in the county, etc., aforesaid, and at the hour of eight o’clock of the night of said day, the stable of David Lowe, there situate,, then there feloniously and burglariously did ■ break and enter with intent the goods'and chattels of said David Lowe in said stable then and there being, then and there feloniously and bur-glarious^ to steal, take and carry away; said goods and chattels being of the value of $200 ; against the peace,” etc.
The second count accused the defendant of the further crime of larceny, committed as follows :
“The said F. C. Dodd, on the 17th day of December, 1877,, at etc., two geldings of the value of $100 each, the property of David Lowe, being found as mentioned in the first count herein, did then there feloniously and burglariously steal, take and carry away, against the peace,” etc.
The defendant was tried on the plea of not guilty, and the jury found him guilty as charged in the first count of the indictment, and fixed his punishment at three years imprisonment in the penitentiary ; and they also found him guilty upon the second count, and fixed his punishment at five years in the penitentiary.
He moved for a new trial, which the court refused, and sen tenced bim in accordance with the verdict. He took a bill of exceptions, setting out the evidence, the instructions of the-court, the questions of law reserved, and prayed an appeal* which was allowed by one of the judges of this court.
If a man feloniously enter a house, in the night time, with intent to steal, he is guilty of burglary, though he may not accomplish the theft. If he completes the theft, he is guilty of a further offense, and may, by statute, be indicted and punished for both burglary and larceny ; and he may be charged with the two offenses separately, or jointly in different counts of the same indictment, as in this case. Gantt’s Digest, secs. 1349, 1351.
The evidence on the trial that appellant broke and entered the stable of David Lowe in the night time, and took the two horses, is not direct, but circumstantial.
Lowe resided on Capital Hill, Little Rock, Between sun down and dark, on the 17th day of December, 1877, he locked his two carriage horses in his stable, and left home. On his return, about 9 o’clock at night, he found the stable door had been broken open, and the horses were gone. The appellant, who seems to have been a stranger to the witnesses, was seen not far from the stable on that day. Witness, Maxwell, lived about ten miles from Little Rock, on the road to Benton. About 11 o’clock of the night on which Lowe found his stable door broken, and his horses gone, aman riding one horse and leading another, passed Maxwell’s house, and made inquiry about movers, saying he was trying to overtake them. The moon was. shining, and witness could see the color of the horses but did not know the man. On the next day Lowe started in pursuit. He found that one of his horses had been swapped to witness Henderson, who resided near Benton, and about twenty-two miles from Little Rock. Henderson went on with him to Hot Springs, where they found appellant in possession of the horse that Henderson had swapped to him, and Lowe’s other horse, and he was arrested.
Upon these facts, we cannot saj that there was no evidence to warrant the jury in finding that appellant broke and entered the stable of Lowe in the night time, and stole his horses.
The appellant asked the court to give four instructions to the jury, all of which the court gave except the second, which is as follows:
“The naked possession of stolen property unaccompanied by other circumstances tending to. show that the defendant committed the offense charged, is a mere circumstance from which a presumption of guilt may arise, and is easily rebutted by any circumstances tending to prove a contrary conclusion.”
The court instead of giving this instruction in the language in which it was asked, said to the jury in a general charge :
“Upon the question of possession of stolen property, the court charges the jury that the possession of property recently stolen, if unexplained, raises a presumption against the defendant that he is the guilty party. That this presumption is stronger or weaker according to the circumstances of each particular case, and that the jury in determining the force of it must take into consideration all the circumstanees surrounding the case, the kind of property, the length of time intervening between the taking and the possession charged to be guilty. They are to say whether under all the circumstances of this case they are'satisfied beyond a reasonable doubt of the defendants guilt,” etc.
This, upon the facts proven, is not a case of naked possession of stolen property unaccompanied by other circumstances tending to show guilt, as assumed in the instruction asked for appellant. The charge of the court was more appropriate upon the evidence, and fair to the accused. 3 Greenleaf, Ev., sec. 31-2-3.
The appellant did not attempt to account for Ms possession ■of the recently stolen horses.
He failed to prove that he had any local habitation, was engaged in any business, or had any means of purchasing or trading for a pair of carriage horses. He was at Capital Hill ■on the day preceding the night the horses were missing, and a few days after he was followed to Hot Springs, where he was found in possession of one of the horses, and it was proven that he had traded the other to Henderson on his way out.
The horses were locked in the stable between sun down and •dark. The door was found broken, and the horses gone at 9 •o’clock at night. Two hours after, at 11 o’clock, he passed Maxwell’s house ten miles out, with the horses, for no doubt, from the facts in evidence, it was he that passed there at that hour.
It is not probable that the stable door was broken open, and the horses taken out in the day light. At that season of the year (17th of December) it was night by six o’clock. If he had taken the horses from the stable before night, it is probable that he would have been farther away, on his flight, than Maxwell’s house, which was only ten miles off, by 11 o’clock at night
But it was the province of the jury, not ours, to weigh all of the facts and circumstauces in evidence. They found him guilty on both counts of the indictment, and we cannot say, as matter of law, that there was no evidence to warrant the verdict.
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Harrisok, J.:
This was an action by John Carroll against James Garibaldi on a judgment recovered by the former against the latter, before a justice of the peace, on the 5th day of February, 1870, for the sum of $184.50. The complaint alleged the record of said judgment to be lost.
This action was commenced on the 16th day of March, 1876.
The defendant answered the complaint. He admitted the recovery of the judgment before the justice of the peace, but averred that an appeal was taken from it to the Circuit Court, and that the cause was, in the Circuit Court, dismissed; and denied the loss of the record of the judgment.
The cause was, at the October term, 1876, submitted to the court, without a juiy, which found as facts, that no appeal had been taken from the judgment and the same remained in force, and that the record of the judgment was lost; and thereupon rendered judgment for the plaintiff for the sum of $184.50 debt, and the further sum of $76 damages, sustained by the detention of the debt.
The defendant appealed.
After the filing of the transci’ipt in this court, an agreement in writing between the parties was filed, that the transcript of a bill of exceptions therewith filed, allowed and signed by the Circuit Judge on the 17th day of December,1877, should be taken and considered as a part of the record in the cause, as if the same had been made part thereof by certiorari.
From this bill of exceptions it appears, that the defendant at the April term, 1877, presented to the judge a bill of exceptions as to certain rulings of the court at the previous term, or that at which the judgment was rendered, and setting out therein a motion for a new trial that was overruled, which the judge refused to sign. That at the next or October term, 1877, the record on motion of the defendant was so amended as to show that when the exceptions were taken, time, but not until any particular day, was given him to prepare his bill o'f exceptions; and that after the amendments were made, the defendant again presented the same bill of exceptions, which the judge again refused to sign, and to this refusal the defendant excepted and tendered the bill of exceptions referred to in the agreement, and in which is set out the bill of exceptions tendered and rejected.
The Circuit Judge should have declined to allow and sign the bill of exceptions to his refusal to sign the other. It was not the subject of an exception.
There can nó more be an exception to the refusal to sign a bill of exceptions than there can be a demurrer to a demurrer. It is the duty of the judge to allow and sign the bill of exceptions presented to him, if true; if not, to correct it and then sign it. If the party excepting is not satisfied with the correction, the statute provides, upon his procuring the signatures of two bystanders attesting the truth of his exceptions as by him prepared, the same shall be filed as part of the record; and that the truth of the exceptions may be controverted and maintained by affidavits, not exceeding five in number, on each side, filed with the clerk. Gantt’s Digest secs. 4697, 4698. And we do not doubt that a judge might, in a proper case, be. compelled by mandamus to sign a bill of exceptions.
“The party objecting to the decision must except at the time the decision is made, and time may be given to reduce the exceptions to writing, but not beyond the succeeding term.” Ib. sec. 4694. It is not implied by this language, that the time when given, if not specially limited, will extend to the last day of the next term. Washington and N. O. Tel. Co.. v. Hobson & Son, 15 Gratton 135.
A judgment becomes final and passes beyond the control of' the court, upon the expiration of the term at which it is rendered, unless suspended by the order of the court; and it cannot be conceived, with any reason, that giving time to a party-for the mere purpose of reducing an exception to writing can. have the effect, if no day is named, of suspending the judgment until the end of the next term, and that an exception might then be reserved to the refusal of the judge to sign the-bill of exceptions as an act done in the cause.
It is more reasonable to suppose that the time, like the= power of the court over its judgment, expires with the term.
But it is contended that the court had no jurisdiction of the-subject of the action.
The judgment sued on being for more than one hundred, dollars, exclusive of interest, the sum in controversy is clearly-within the jurisdiction of the Circuit Court.
At common law a party has a right of action upon his judgment as soon as it is recovered, although having the right to-take out execution, his action seems unnecessary. Freeman on Judgments, see. 432.
The plaintiff may at the same time prosecute an action upon the judgment and a scire facias to revive it, and a judgment in his favor in the latter proceeding, does not affect the former, Ib. Carter v. Coleman, 12 Ind., 274.
The remedy provided by section 3774 of Gantt’s Digest, when the record of a judgment of the justice’s court has been lost or destroyed, that such court may on motion of the judgment creditor, after five day’s notice, render a new judgment for what may remain due, is but a cumulative or additional remedy, Sedgw. Con. and Stat. L. 100 (n.) Two remedies-may co-exist.
The judgment is affirmed. | [
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Harrison, J.:
The appellants having sued out an execution upon the decree in this court in their favor against the appellees for the cost of the appeal in this case, the appellees filed with the clerk schedules of property they claimed to hold exempt from the execution — one including a homestead, and the clerk thereupon issued a supersedeas as to the property so scheduled.
The appellants, for the cause that the execution is not for-the collection of a debt by contract, have filed a motion to quash the supersedeas. As will be seen by the report of the case — Massie et al. v. Enyart et al, 30 Ark., 251 — the action was in equity, and brought by the appellants against the appel-lees to set aside a deed of conveyance of a tract of land, upon the ground that it was made in fraud of the plaintiffs.’’ rights as creditors of the grantor, and that the same was for that cause by the decree set aside and canceled.
There can be no question as to the exemption of the homestead.
The homestead of a resident of the State, who is married, or the head of a family, and the owner in this case is shown to be such, is not subject to sale under execution, or other process,, upon any judgment or decree whatever, not rendered for “the purchase money, or for specific liens, laborers’ or mechanics’ liens for improving the same, or for taxes, or against executors, administrators, guardians, receivers, attorneys for moneys collected by them, and other trustees of an express-trust for moneys due from them in their fiduciary capacity.” Cons., Art. IX., Sec. 8.
The exemption of personal property is, in cases of debt,vby contract only. Section 1 of said article.
A judgment or decree in an action for tort, or fraud, is not a debt by contract, nor are the costs, which are but an incident of the judgment or decree. 2 Tidd, 945. If the defendant’s-personal property is not exempt from sale under an execution,, for the damages recovered against him in an action for torts,, we are unable to understand why it should be for the cost, the mere incident of the damages. In New York, it is expressly-held that a judgment rendered against the plaintiff for costs in an action brought by such plaintiff for damages for an alleged tort, is not a judgment for a “debt contracted,” within the meaning of the exemption law of that State. Schoulton v. Kilner, 8 How. Pr., 527; Latterof v. Singer, 39 Barb., 396; and see Thompson on Homesteads and Exemptions, Sec. 383.
Proceedings against the homestead were properly stayed and superseded, but there being in this case no exemption of the personal property, the supersedeas as to that must be quashed. | [
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English, C. J.:
On the 3d of August, 1875, this suit was commenced in the-Circuit Court of Randolph county, in the name of the State' for the use of Levi Hecht & Bro., against John F. Spikes,, sheriff of said county, and Samuel E. Murdock and William Thompson, sureties, on his official bond.
The complaint, after setting out the bond and its conditions,, alleged a special breach in substance as follows :
That on the 5th day of May, 1875, Hecht & Bro., in an-action by attachment, recovered a judgment in the Circuit Court of Randolph county against Brilliant & Son, for $399,. etc., and for costs, etc.
That on the 28th of May, 1875, a special execution issued on the judgment, commanding the sheriff to sell 600 walnut logs,, attached and condemned by the judgment, returnable in sixty days, which, on the da}r it was issued, came to the hands of defendant. Spikes, as sheriff, to be by him executed, etc. That he levied on the logs the 5th of June, 1875, but wholly neglected and failed to advertise and sell them, or otherwise obtain satisfaction of the execution.
At the return term, November, 1875, defendant demurred to the complaint, and on the 12th of August, 1876, the demurrer was overruled, and on the 18th of the same month they filed an answer.
On the 11th of August, 1877, by leave of the court, they filed an amended answer, in substance as follows :
I. Defendants admit that defendant, Spikes, was sheriff, that the special execution came to his hands, and was duly levied upon the property as alleged in the complaint; but aver that after said property was levied upon, and before it could be or was advertised for sale, “one Eli Heavener, claiming to be the lawful owner of said 600 walnut logs, interpleaded therefor, and by virtue of a bond, conditioned according to •law, tendered, said Spikes surrendered said walnut logs into the possession of said Eli Heavener, he having by due course of law, demanded the same, and being by law entitled to the possession of said property, said execution was suspended.”
II. That Brilliant & Son were not the owners of the logs.
III. That the legal fees for levying upon, advertising and selling said logs were not paid or tendered to Spikes.
- Concluding with a general denial of the breaches assigned, ;and an averment of performance of the conditions of the bond.
The case was submitted to a jury on the day the amended answer was filed.
The plaintiff read in evidence the original writ of attachment issued 16th of March, 1875, in the suit of Hecht & Bro. ■against Brilliant & Son, and the return of defendant, Spikes, as sheriff, thereon, showing that on the 23d of the same month he had attached 600 walnut logs lying on both banks of Eleven Point river, in Randolph county, as the property of Brilliant & Son.
Also the following record entry:
“RaNDOuph Circuit Court,
“Tuesday, May 11, 1875.
■“Levi Hecht & Bro. v. J. S. Brilliant & Son.
“Now, on this day, comes Eli Heavener, by attorney, and by leave of tbe court, files a motion for leave to interplead in this cause.”
Also the record entry of the judgment in the same suit, rendered by consent of the defendants therein for $399, debt, etc., 15th of May, 1875, reciting the attachment of the 600 walnut logs, condemning them to be sold in satisfaction of the judgment, and ordering a special execution for the sale thereof.
Plaintiff also read in evidence the special execution issued ■upon the judgment, 28th of May, 1875, with the return indorsed thereon, as follows :
“I hereby certify that the within execution was served by • levying the same on six hundred walnut logs, as the property of J. S. Brilliant & Son, on the 5th day of June, A. D. 1875, in the presence of Nan Johnson, at the county of Randolph ■and State of Arkansas.
“JohNE. Spikes, Sheriff.”
“I hereby certify that I have not sold the within 600 walnut logs, as commanded, for the reason that Eli Heavener claims the same as his property, as is shown by his pleading filed in the Randolph Circuit Court, and further has given to me, as sheriff of Randolph county, a good and sufficient bond for the delivery of said property in case he shall fail to establish his= claim to same as his property ; this the 24th day of July, 1875..
“JOHN F. Spekes,. Sheriff.
“Returned and filed, July 26, 1875.
“Ti-ios. T. RobiNSON, Olerlc.
“By Wm. A. Lucas, D'. C.”'
hiere the plaintiff rested.
The defendants were permitted to read in evidence, against the objection of the plaintiff, the following record entries :
“RANDOLPH Circuit Court,
“Wednesday, August 16,. 1876.
“Levi Hecht & Bro. v. J. S. Brilliant & Son.
“Now, on this day, comes Eli Heavener, by attorney, andl by leave of the court files his interplea in this cause.”'
“RaNdolph Circuit-Court,
“Thursday Morning, August 17, 1876.
“Levi Hecht &■ Bro., Plaintiffs, v. J. S. Birilliant & Son,, Defendants ; Eli Heavener, Interpleader.
“Now, on this day, comes the plaintiff, by attorney, and. moves the court to dismiss the interplea in this cause; and thereupon comes Eli Heavener, by attorney, and resists said motion, and after argument of counsel, said motion is, by the-court, overruled. Whereupon the plaintiffs, by attorneys, by leave of the court, withdraw said motion, and withdraw from, the case.
“And the interplea in this cause coming on to be heard, the-defendants, although solemnly called, come not, but make-default; whereupon Baber & Henderson, who were formerly attorneys of record for the defendants, notified the court that, they had withdrawn from the cause.
“Thereupon comes a jury, consisting of C. W. Brown andl eleven others of the regular panel, who, after hearing the evidence adduced, and instructions of the court, retired to con ■•sider of their verdict; and after a brief absence, they returned into court the following verdict: ‘Wo, the jury, find the property, to-wit: Six hundred walnut logs, in controversy, to be the property of the interpleader, Eli Heavener.
‘C. W. BeowN, Foreman.’
“It is, therefore, by the court, considered and adjudged that the interpleader, Eli Heavener, be and he is hereby sustained in his possession of the property sued for, to-wit: Six hundred walnut logs, and that he have and recover of and from 'the plaintiffs all his costs in this suit pending.”
Defendants then introduced, as a witness, John E. Spikes, ■who testified in substance, that the property levied on by virtue of the execution, read in evidence by plaintiff, was the same property claimed by Eli Heavener, as shown in his return indorsed upon said execution. That no legal fees had been paid or tendered to him by plaintiff in the execution, or any person for them, for serving said special execution. On cross-■examination, he stated that he had agreed to serve all process .in favor of plaintiff without any fees being advanced to him, •but that after said agreement there had been a dispute about •some fees due in an attachment suit, and after that time he •considered said waiver by him for all fees for serving process for plaintiff at an end, but that he had not told them so at any time, or declined to serve their process without his fees first being paid.
Defendants also read in evidence [the bill of exceptions states] the bond returned by Spikes of Eli Heavener, with said ¡special execution ; [but the bond is not in the bill of exceptions, or in the transcript], and here defendants rested.
Levi Hecht was then introduced as a witness, who testified that Spikes had not given him any notice of requiring him to 'tender fees in advance for executing process in his favor, but Rad always told him that he would serve all process that came to his hands without fees being advanced; that he knew he could get the money at any time called for. That witness told him that if his attorneys said the commissions he claimed were legal for levying attachment in the case referred to by Spikes, he would pay them ; but that his attorney told him and Spikes that no commissions were due Spikes for levying an attachment where there was no order of sale of property attached.
John P. Blake testified, and [the bill of exceptions statesj fully corroborated the testimony of Levi Hecht.
The above being all of the evidence introduced on ' the trial of this cause, the court, against the objection of plaintiff, instructed the jury as follows :
“1. If the jury believe from the evidence that defendant, (Spikes) was ordered by a special execution in favor of plaintiffs, (Hecht & Bro.) against Brilliant & Son, issued upon a judgment of the Circuit Court of Randolph county, in favor of said plaintiff against said Brilliants, in which judgment the-property attached was adjudged to belong to said Brilliants, and that defendant, Spikes, after tender and waiver of his fees as such sheriff, from the plaintiff, failed, neglected and refused, to levy, advertise and sell said walnut logs, they must find for the plaintiff; unless they further find that after the levy of the execution upon such judgment, Eli Hcavener, as interpleader, in the Circuit Court, where the said judgment was rendered,, and said execution was returnable, recovered said property in his right, of which recovery the plaintiff had notice, in which case the jury will find for the defendants.
“2. If the jury find from the evidence that Eli Heavener, the interpleader herein, after the levy on the property in question, and before the sale thereof, claimed said property and. executed a bond in double the value of the property to the plaintiff in execution, to the effect that if said property or any portion thereof, should be adjudged subject to- execution, he would pay the plaintiff the value of the property so subject, and ten per cent thereon ; and if they find from the evidence that the defendant having the execution in his hands, as sheriff, had said property appraised by three disinterested house-keepers, as required by law ; and the defendant, as such sheriff, returned said bond with the appraisement annexed thereto, to the Circuit Court's of Randolph county, and that the interpleader, Levi Heavener, appeared in said Circuit Court and asked leave to interplead in said court, and upon the hearing of said interplea, said property was adjudged to be the property of said interpleader, they will find for the defendants, although they may find that the fees were tendered'the defendant, (Spikes) or waived or otherwise arranged.”
The jury returned a verdict in favor of defendants; and judgment was rendered against Hecht & Bro., for whose use the suit was brought for costs. A motion for a new trial was filed and overruled, and an appeal granted by the clerk of this court.
I. It appears that the interpleader’s bond relied on in the first paragraph of the answer of appellees as a justification to the sheriff, for not selling the logs under the special execution, was read in evidence on the trial, but appellant failed to bring it upon the record by incorporating it in the bill of exceptions taken to the decision of the court overruling the motion for a new trial. It was the duty of appellant who-seeks to reverse the judgment for error, to set out the bond' in the bill of exceptions, and having failed to do so, it must be presumed that the bond was- in good form — in the form prescribed by law, if there be any law authorizing a sheriff who-has levied upon properry under a special execution issued upon a judgment in a suit by attachment to suspend a sale, upon the execution of a bond by one who claims the property and desires-to interplead for it. Taylor v. Spears, 8 Ark., 433.
The bond, we presume, was not executed under the provisions of the act of 19th of January, 1861, of which sections 469 to 473 of Gantt’s Digest, under the general caption, •“ATTACHMENT,” and sub-title, “INTERPLEADER,” are made up, because that act provides for the bonding of property bjr a claimant, and an interplea and a trial of the right of property, where there is a levy of a writ of attachment upon property claimed by a person not a party to the writ, etc. In its language it does not provide for bonding property and inter-pleading for it, where it is levied upon under a special execution issued upon a judgment in an attachment suit condemning the property to be sold to satisfy the judgment, as in this case.
Sections 432 to 436, Gantt’s Digest, under “attachment,” provide that any person may claim property attached at any time before the sale thereof, etc., and have a trial of the right of property, and if the claimant be anon-resident, he shall give bond for costs : but no provision is made by these sections for the claimant to bond the property and stay the sale until there can be a trial of the right of property.
But no doubt, from the language used by the court below in the second instruction to the jury, the bond read in evidence was taken under the provisions of Sections 2671 to 2676, Gantt’s Digest, caption, “execution.”
The language of Section 2671 is general and comprehensive. It is, that “the sale of personal property upon which an execution is levied, shall be suspended at the instance of any person, other than defendant in the execution, claiming the property, •who shall execute, with one or more sureties, sufficient for double its value, a bond to the plaintiff in the execution, to the effect that if it shall be adjudged that the property, or any part of it, is subject to execution, he will pay the plaintiff the value of the property so subject, and ten per cent thereon, not exceeding the amount due on tbe execution, and ten per ■cent thereon.”
To give this statute a narrow construction, and hold that it applies only where a general execution is levied on property, and not where attached property is about to be sold under a •special execution, would make an omission in legislation, and leave a claimant in the latter case without the means of staying a sale until he could interplead and have a trial of the right of property, and perhaps drive him to a suit against the sheriff or purchaser at the sale.
It appears that Heavener had knowledge that the logs were attached before the judgment was rendered and the execution issued in the attachment suit, for he asked and obtained leave to interplead for the property on the 11th of May, 1875 ; and judgment was not entered until the 15th of the same month ; and he might have bonded and interpleaded for the logs under sections 469-71 of the Digest. But it might frequently happen that one owning property or having a lien upon it would have no notice that it had been attached as the property of another, until after the judgment and execution ordered in the attachment suit. In such case the claimant might interplead for the property under sections 432-4 of the Digest; but unless he could stay the sale by bonding it under sections 2671-76, the sheriff would have to proceed with the sale regardless of his interplea. But be this as it may, there was a further defense in the case.
II. Appellees were permitted to read in evidence, against the objection of appellant, the record of the trial and judgment on the interplea.
It is submitted that the record was inadmissible because the judgment was not pleaded.
Where it is necessary to plead a form.er judgment in bar of an action, it cannot be given in evidence unless pleaded, because of the general rule that the proof must correspond with the allegations.
In this case the judgment could not have been pleaded in bar of the action, because it was rendered after the suit was-commenced. Walker v. Bradley, 2 Ark., 578; Burton v. Hynson, 7 Ib., 502.
By the second paragraph of the answer of appellees, they pleaded that the title to the 600 walnut logs was not in Brilliant & Son, the defendant in the attachment.
The onus of proving this- plea was upon them. The logs having been attached and condemned to be sold by the judgment in the attachment suit as the property of Brilliant & Son, this made a prima facie case that the title was in them, but it-was not conclusive upon the appellees, who were not parties to the attachment suit. Appellees had the right to prove, as they pleaded, that the title to the property was not in Brilliant & Son. To prove this they offered in evidence the judgment upon the interplea of ITeavener.. Hecht & Bro., who are the-virtual plaintiffs in this suit, were the plaintiffs in the attachment suit in which Heavener interpleaded and claimed title to-the logs. There was a tidal and judgment, by a court of competent jurisdiction, that the title to the logs was in him, and not in Brilliant & Son. Hecht & Bro. had notice and opportunity to contest the interpleader’s claim. They moved to-dismiss the interplea, and, on the motion being overruled, they voluntarily declined any further contest. The trial proceeded, judgment was rendered for the interpleader, and they took no appeal as they might have done. This judgment was conclusive upon them, that the title to the logs was not in Brilliant & Son, but in the interpleader. Hershy v. Clarksville Institute, 15 Ark., 131.
III. The matter of tendering the sheriff his fees is. of nó consequence in this case. The statute requires them to be tendered before he can be compelled to execute process. State Use v. Brown et al., 30 Ark., 761, but no doubt he may waive the tender or payment of his fees in advance.
The judgment of the court below must be affirmed. | [
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EakiN, J.:
At the June Term, 1873, of the Crittenden County Circuit Court, Apperson & Co. sued the administrators of J. W. Burgett in an action at law to recover a half interest in a body of lands in their possession, which for convenience we will designate as the Home Place.
They answered that they were in possession only as administrators, and denied the title and right of possession of plaintiffs. They also prayed that Pearl Burgett, the infant daughter and sole heir of J. W. Burgett, might be made a party, and with her filed a cross-bill against plaintiffs and John C. Burgett. The object of the cross-bill was to establish an equitable title in said lands by virtue of a purchase by the intestate from said John C., in January, 1867; alleging-payment of the purchase-money, transfer of possession, and continued occupation in the intestate and his representatives ever since ; and to have the title in the heir declared superior to that of plaintiffs, who claim by virtue of a deed from the-Marshal of the United States Circuit Court, upon an execution against John C. Burgett, and a sale thereunder in 1872. The causa was transferred to the equity docket, and afterwards the cross-bill was amended so as to set up an actual deed from John C. to J. W. Burgett at the time of the sale, which had been lost. The plaintiffs responded to the cross-bill, denying that there had been any bona fide sale from John C. to J. W., as alleged, but that the same was pretended and colorable only,, and made in fraud of creditors. ■
At the same term of the Circuit Court at which the action in ejectment had been brought, Apperson & Co. filed a separate bill in equity against John C. Burgett and the representatives and widow and heir of J. W. Burgett, in aid of their remedy against another body of lands bought by them at the :same execution sale ; for which John C. Burgett, on the 4th of .November, 1867, had executed a deed to J. W. Burgett, which had never been recorded until two or three days before the Marshal’s sale, and which they claimed to be in fraud of creditors and without actual consideration. This body of lands we will designate as the “Council Bend” Place. Proper issues were made on these allegations, and the two causes were consolidated and heard together.
In the progress of the causes it was developed by evidence that after the alleged sales to J. W. Burgett from John C., the latter was, in 1868, duly adjudged a bankrupt on his own application. An assignee had been appointed and the property of the bankrupt conveyed to him. Apperson & Co. were the only creditors who proved their debts. Nothing, or very little, came into the hands of the assignee, who was discharged by the court, upon his own application, from all further duties, and the certificate of discharge of the bankrupt was refused. Meanwhile Apperson & Co. had been allowed to withdraw their claim from the bankruptcy proceedings. They afterwards brought suit and obtained judgment in the Circuit Court of the United States for the Eastern District of Arkansas. It was upon this judgment that the execution issued under which they had purchased in both bodies of land. They did not satisfy the debt, aud as to the balance the Marshal returned nulla bona. An alias execution was sued and again levied on the second body of lands, the Council Bend Place, and complainants in their bill pray to be allowed to make a sale of the same under the alias, after the deed from John C. to J. W. Burgett may be declared fraudulent and set aside.
At the hearing of the cause complainants applied to the court to suspend proceedings on account of the disclosure of the bankruptcy of John C. Burgett, that they might have another assignee appointed and made a party, offering to ■stipulate that it should not cause a delay beyond the next term. 'This the court disregarded and proceeded to a decree.
With regard to the Home Place, the court found that the sale on the first of January, 1867, of a half interest had been bona fide made by John C. to J. W. Burgett for a valuable consideration, which had been paid, and that said J. W. Bur-.gett had taken and held possession of it till his death, and his ■administrator after him. That Apperson & Co. had notice, and acquired no title by their purchase at execution sale. 'Title was decreed in Pearl Burgett as heir of Isaac W. Burgett^ her father, subject to debts against his estate.
With regard to the Council Bend lands the court found that the payment of the consideration for the same and their actual occupation by Isaac W. Burgett had not been satisfactorily proven, and that the conveyance from John C. Burgett was in fraud of creditors. That deed was .canceled and the title to all the lands constituting that body contained in the Marshal’s deed confirmed in Apperson & Co., who were also ■decreed to pay all the costs of the suit. Both sides appealed.
The question arises in limine, ought the Circuit Court, on discovery of the bankruptcy proceedings, to have dismissed both causes for want of proper parties, or to have given complainants time until the next term of the court to have made and brought in an assignee ?
It is one of the chief excellencies of equity jurisprudence to do nothing futile or by halves, but to cause all persons interested in the subject-matter of the litigation to be brought in and bound by one decree, adjusting all their rights, and closing all the future litigation with regard thereto. This is not always possible, and to meet the exceptional cases it is provided by the Code that “the court may determine any controversy between parties before it when it can be done without prejudice to the rights of others, or by saving their rights.” (Sec. 4481 Gantt’s Digest.) “But when a determination of the controversy between the parties before the court cannot be made without the presence of other parties, the court must order them to be brought in.” This is indeed but an affirmance of the former practice, and affords the correct criterion for determining when the court will decline to exercise any jurisdiction whatever, or may, in its discretion, proceed to a partial settlement of the matters in controversy amongst the parties actually before it. This will never be done when there are outstanding-equities in others the future assertion of which against the. parties litigant would cause new equities, or revive old ones as to the same matter between themselves. If so, the decree could, in its nature, be only provisional. But where it can be made final as far as it goes, the court may for convenience proceed, leaving the rights of others unaffected.
The case before us seems to come within the discretional class. The decree as to the title to the lands, subject to the claims of any future assignee, would be final between Apper-son & Co. and Isaac W. Burgett’s heirs and representatives i and would not be disturbed or give any new equities between themselves upon the assertion of these claims. Nevertheless* it would not have been prudent to proceed without making the. assignee a party, if there had been any assignee in existence* or any proceedings in bankruptcy kept alive for the administration of John C. Burgett’s effects. But such was not the case. All the effects which came to the assignee had been administered, and he had been finally discharged. The certificate of the bankrupt had been denied. Everything seemed to have been done that was intended under those proceedings* The complainants were the only creditors who had proved their debts, and their withdrawal of their claim, and their proceedings in the Federal and State courts upon the same claim, might well be taken as an election not to revive the proceedings, in bankruptcy. No one else had an interest to do so. The •court did not err in proceeding at once to final decree.
In passing, it may be well to indicate that, in the exercise of this discretion, the court is not confined to the view of the interests of parties disclosed by the pleadings and put in issue. It seems the better practice, and more in accordance with the spirit of equity proceedings, that the court should take notice of any equities brought to its notice, in the course ■of the proceedings, which it may believe to be bona fide, and not interjected for the purpose of confusion and delay. It would be difficult, and this court will not attempt, to lay down any definite rule as to this point. It depends upon sound discretion under the circumstances of each case.
With regard to the home place, the onus was upon Pearl Burgett to show that an actual sale of the place, for valuable consideration, had been made by John C. Burgett to her father at the time alleged. This she did by testimony clear, certain, and unjmpeached, proving not only the date but the execution ■of a deed which had been lost. She proved further that her father had remained from that time in undisputed possession, claiming the whole interest, until his death, and that his administrators had so remained in possession until the action at law for possession was begun. This shifted the burden upon defendant in the cross-bill, to show that the sale was fraudulent. The preponderance of proof is greatly in favor of its fairness, that the consideration was paid, and that Apperson & Co. had such notice of it, not only by the possession of Isaac W. Burgett, but actually at the Marshal’s sale, as to put them upon inquiry, and subordinate their judgment lien to the equity (or in view of the last deed), the legal title of Isaac W. Burgett’s heirs. There is no error in the decree as to this body of land.
With regard to the other, or Council Bend Place, the com plaint admits the execution of the deed from John C. Burgett. to Isaac, on the 4th of November, 18(57, which was recorded a, few days before the Marshal’s sale. This under our decision, in the absence of fraud, gave a legal title superior to the lien of a judgment obtained after the sale, and to the title of a. purchaser at execution after the deed had been recorded. The whole onus of showing fraud was on complainants.
The principal evidence bearing upon this point tends to. show:
That Isaac Burgett died intestate leaving a large estate and five heirs, to wit: John C., Henry E., Peter N., Isaac W.,. and Nancy P. Burgett, the last of whom afterwards intermarried with Grider. The estate was but little embarrassed, and administration was taken out only for the partial purpose of' closing some business with his merchants. The heirs undertook amongst themselves to divide the bulk of the estate,, especially the lands, of which there was a large quantity. In the course of this adjustment, Henry, Isaac W., Peter, and Nancy, on the 18th day of October, 186(5, by deed conveyed to John C. their interest in the Council Bend lands, being-four-fifths. The deed purports to have been made from their desire to make partition, and for the sum of $19,277, expressed to be paid. It was about the same time that the adjustment of the interests in the Home Place had been made. The-Council Bend lands embraced a tract of about three or four thousand acres, composed of fractional sections and parts of' sections. It was in a wild state, having only about forty acres, cleared. This deed seems never to have been recorded.
On the 4th of November, 1867, John C. Burgett by deed,, for the expressed consideration of $5,750 to him paid, conveyed the Council Bend lands (or what was meant to be that tract) to Isaac W. Burgett. But there is a discrepancy here which runs through the whole case, and which seems to have escaped the notice of counsel and of the court below. The Council Bend lands lay in a compact body, in two ranges ; some on the-eastern side of range 6 east, and some on the western side of range 7 east. They were correctly described in the deed from the other heirs to John C. This is obvious to any one-who will attempt to make a plat. But in the deed from John C. to Isaac W., of the 4th of November, the distinction of' ranges is not preserved. All are stated to be in range 6 east,., whereby some nine hundred acres or thereabouts are conveyed,, to which probably John C. had no title, and all the lands in range 7 east are left in himself.
The mistake is patent, but would require the interference of' a court of chancery, if necessary, to effectuate the intention.. This deed was duly acknowledged at the time, but not recorded. John C. Burgett remained in possession, lived upon the place and cut cordwood for sale. The evidence shows that, he did so under an arrangement with Isaac W. by which he-was to hold as Isaac’s tenant, and pay for the wood cut at a. rate per cord, but fails to show satisfactorily that any payments, were ever made for rent or on account of wood.
After this transaction John C. Burgett, on November 9th,. 1867, executed to Henry Burgett his note for $11,564, due-May 15th, 1868. This was.assigned by Henry to Apperson &. Co., on the 28th of November, 1867. They proved it in the bankrupt proceedings against John C. on the 11th of December, 1869 ; withdrew it on the 8th of March, 1870; brought suit in the Federal Court June 16th, 1871; recovered judgment April 16th, 1872 ; levied their execution on the lands on the 28th May, 1872 ; sold and purchased under execution August 7th, 1872 ; and, counsel says, obtained the Marshal’s, deed on the 20th January, 1873. The execution had been levied on the Home Place also. Before the sale the administrators of Isaac W. Burgett, on the 5th of August, 1872, had. Caused the deed of the Council Bend Place from John C. to Isaac W. to be recorded ; and at the sale they caused it to be announced publicly to the bidders present that all the lands included in the levy were claimed by the estate of Isaac W. The levy of the Marshal omits the east half of section 1, in range 7 east, which was in the Council Bend tract as conveyed to John C., and intended to be conveyed by him to Isaac. The proper numbers appear, however, in his certificate of purchase, dated of the day of sale.
According to the principles established in this court nearly a quarter of a century ago, and since maintained without question, the lien of the judgment was subject to all valid liens upon the lands at the time of the rendition, whether recorded or not. It bound only what the debtor then had, and was effective only to prevent future alienations or incumbrances. Aud it was further held, upon mature deliberation and examination of authorities, that notice of all liens or alienations attaching before the judgment might be given at any time before the sale of the lands under execution, and would bind the purchaser. (See Rogers et al. v. Engles, 16 Ark., 543.) Audthisno-tice might be actual, or by recording, or by the possession of the former grantee, (Ib.) The convejumce from John C. Burgettto Isaac W., of the 4th November, 1867, gave title superior to that acquired by Apperson & Co., uiiless the former can be held voidable for fraud.
The circumstances relied upon to establish fraud are the relationship of the parties, the secrecy of the conveyance, the continued possession of the vendor, the eve of bankruptcy, the inadequacy of the consideration, and the confusion and uncertainty of the proof as to payment.
The English rule, adopted under the lead of Twyne’s case (2 Coke, 80 a), and followed in America with some modifications — that the possession of property retained in the vendor is prima facie fraudulent, did not apply to the conveyances of real estate. Possession was not, as in case of personalty, a presumption of absolute ownership — or at least not so strong, and it was supposed that prudent purchasers or incumbrancers would look beyond that to the actual title. Yet possession of real estate would naturally afford some presumption of a pos-sessory right, and in connection with other fraudulent circumstances, has been held proper for consideration. Whilst possession retained by the vendor will not, as in case of personal property, raise the prima facie presumption of fraud, it may oe a fact tending, with others, to show a secret trust. This is intimated in a note to Twyne’s case, referring to 1 Roll Rep. 99(3, an authority which we have not at hand. See also on this point, Paulding v. Sturgiss, 3 Stew. 95; Noble et al. v. Coleman & Gunter, 16 Ala. 77; Ogden Morell v. Scherrick, 54 Ill. 269; and so a secret conveyance of land has been held in this State a badge of fraud. Noble et al. v. Noble, 26 Ark. 317. The fact, too, that John C. Burgett appears to have been greatly embarrassed in his circumstances, and that a few months afterwards he was adjudged a bankrupt, although, of itself, no badge of fraud, may be properly considered in estimating his intentions, in connection with other ciroumstances.
The consideration of $5,750 as the whole price of a large body of lands, for four-fifths of which he had a year before agreed to pay over $19,000, is, making the utmost allowance for’shrinkage, grossly inadequate. If there were other considerations, they were not expressed nor shown n 1th any satisfactory degree of clearness in the proof. The court is aware of the heavy decline of planting lands which followed the abolition of shivery and the prostration of the war, but the effects of this had been already experienced in October, 1866, and it does not account for so great a disparity in value between that date and the 4th of November, 1867. The Supreme Court, of Missouri, in the case of Ames v. Gilmore et al., 59 Mo. 537, which was brought to set aside certain deeds as fraudulent, remarked: “It is a rule in considering such cases that while a slight inadequacy of price alone is very weak evidence,, if the inadequacy is gross, it becomes a badge of fraud which may-be considered by a chancellor, and becomes a controlling-force when coupled with other circumstances tending; to prove fraud.”
Considering all the circumstances together, the condition of John C. Burgett at the time, the relationship between the-parties, the inadequacy of the price and the unsatisfactory nature of the evidence of its payment, the failure of J. W. Burgett to record the deed or to take visible and notorious, possession, the execution by John C. Burgett of his note for over $11,000 within four days afterward, and his petition in bankruptcy within seven months, the meager assets which were given up to the assignee, showing his utter destitution at the time, and thus raising the presumption that the deed to Isaac-conveyed all his remaining property, we can not say that the-Chancellor erred in decreeing the Council Bend lands subject to the claim of complainants.
The relief granted, however, went beyond the prayer of the bill, and beyond what reason and justice would dictate. Complainants very properly asked that the deed to Isaac W.. Burgett of the Council Bend lands might be canceled and the-lands left free for sale under their alias execution. This was-in accordance with the views of this court heretofore expressed, that it is the better practice, in attaching fraudulent, conveyances by creditors, to first get judgment and a levy upon the lands, and then apply to a court of chancery to remove impediments in the way of the sale of a clear title before the sale is made. By this course the interests of the debtor are better protected, inasmuch as he is enabled to get credit for the full value of his lands upon a clear sale, whilst otherwise, in the face of prospective litigation regarding the fraudulent conveyance, the lands are generally bought by the creditor for a trifle, and the debtor left burdened with almost the whole of his debt. Whilst a purchaser at execution sale may afterwards file a bill to cancel previous fraudulent conveyances, the practice of making such sales is not to be encouraged. In this case the complainants have seemed to desire a re-sale, and it was obviously proper. There is no necessity, however, for leaving complainants to pursue their remedy by execution. The Chancery Court having jurisdiction of the subject-matter, and of all parties in interest, may complete the business, take notice of the judgment, and order a sale under its own directions, for its satisfaction, first sweeping away the cloud raised by the fraudulent conveyance and making all necessary corrections in the description of the lands.
The matter of costs was in the discretion of the Chancellor, which does not appear to have been abused.
Let so much of the decree as applies to the Home place be affirmed, designating the lands which compose it, and also let the decree be affirmed as to the costs of the court below, and let the costs of this court be adjudged against appellants, Ap-person & Co.
Reverse so much of the decree as relates to the lands conveyed by John C. Burgett to Isaac W. Burgett, and known as the Council Bend lands, and as to that part let the cause be-remanded, with instructions to proceed therein in accordance with the law and practice in equity and not inconsistent with this opinion, to subject said lands to sale for the satisfaction of complainant’s judgment at law, and for such rulings as to future costs ap to the court may seem meet. | [
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HarrisoN, J.:
This was an action by the State for the use of R. L. Sawyer against N. J. Farris and his securities, W. E. Dempsej and W. Harris, on the bond of said Farris as Constable of Lonoke Township.
The breach complained of, was the failure of said Constable to deliver up or restore to said Sawyer, a horse seized under an attachment against him, after the filing by him with the Justice of a schedule of his property, including the horse, which he claimed to be exempt from sale under the execution.
Farris, only, made any defense. He filed an answer which denied, none of the allegations of the complaint and set up no other defense than that the horse was placed by him in a livery stable, and that the expense of his keeping not being paid, he was sold therefor by the keeper of the stable, and it was, consequently, impossible for him to return him.
To this answer a demurrer was sustained ; and although he filed an amended answer, and the sufficiency of such defense is ■ not before us, we deem it not inappropriate to remark, that it was clearly’the duty of the Constable so to have kept the property attached, that he could return it, if its return was required If he saw fit to keep the horse at the livery stable he should, himself, have paid for his keeping. The statute is plain : “The Sheriff, Constable, or other officer, shall safely keep all property, taken or seized under legal process and shall be allowed by the court the necessary expense of doing so, to be paid by the plaiutiff and taxed in the costs.” Sec. 2,851 Gantt’s Digest.
In his amended answer, he answered that he offered to return the horse to Sawyer, but he refused to go to the stable to receive him, and he denied that he ever refused to return him.
The jury returned a verdict foi the plaintiff, and assessed the damages at $190, for wbicb judgment was entered.
All the defendants appealed.
The appellants insist that no cause of action is shown by the complaint.
The complaint, which is very loosely drawn, and defective in its averments, alleges that the Justice of the Peace was directed by a mandamus from the Circuit Court to issue to the Constable a supersedeas against the sale of the horse, but does not allege or show that such supersedeas was in fact issued. Until the supersedeas was issued, it was the duty of the Constable to keep, and retain possession of the horse, and there could be, before then, no breach of the condition of his bond by the request to return or the non-delivery of him.
The averment that the supersedeas was in fact issued, is therefore, a material one, and its omission fatal to the action.
The judgment is reversed and the cause remanded to the Court below, with instructions, to permit the plaintiff, if so advised, to amend his complaint, and for further proceedings. | [
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English, C. J.:
This was a bill to enjoin a Commissioner in the Chancery from selling lands, claimed as a homestead, under a decree rendered upon a creditor's bill condemning the lands to be sold by the commissioner.
The material facts disclosed in the transcript of the record before us are as follows:
On the 25th of May, 1871, E. D. L. Atkins, being indebted to Blakely D. Turner, drew draft in his favor upon John W. Vaughan, who was indepted to Atkins, for $364.27, payable 1st November 1871, which was accepted by Vaughan.
On the 3d of February, 1873, Turner recoverd judgment against Vaughan before a Justice of the Peace of White County for $347, being for amount due upon the draft after allowing credits, etc.
On the 18th of February, 1873, Turner caused a ft. fa to to be issued upon the judgment; Vaughan scheduled his personal propert, and the constable returned upon the execution nudla bona etc.
Turner the filed, a transcript of the judgment, execution and return, in the office of the clerk of the Circuit, Court of White County, and on the 10th March, 1873, caused an execution to be issued thereon, which was returned by the sheriff, no property found and wholly unsatisfied.
On the 17th of November, 1873 Turner filed a creditor's bill on the Chancery side of the Circuit Court of White county against Vaughan and his wife Amanda, alleging in detail the facts above stated, and further averring, in substance:-
That on the 24th of August, 1871 Vaughan purchased of A. K. Lewis and wife the N.E 1-4 sec. 44, and the S. W. 1-4 of the N. W. 1-4 of sec. 13 T. 10 N. R. S. W. and on the 10th of January, 1873, he purchased of Hagh B. Chandler and wife the S. W. 1-4 of the N. E. 1-4 of sec. 34, same township and range, situate in' White county. That he purchased the said lands with his own means, but to avoid the payment of said debt and other debts owed by him, he fraudulently caused them to be conveyed by the vendors to his wife, Amanda. That at the time of the purchase of said lands, said Amanda had no separate means or estate with which to purchase or pay for them, and that Vaughan purposely caused them to be conveyed by the vendors to his wife to cheat, defraud, hinder or delay his creditors, and particularly Turner, in the collection of their debts against him.
Prayer that said deeds (which were made exhibits) be declared fraudulent, and said lands held to be the property of Vaughan, and decreed to be sold and the proceeds applied to payment of said judgment, etc.
Vaughan and wife answered the bill, admitting to be true its allegations relating to Turner’s debt, judgment, executions, etc.
Vaughan admitted that he purchased the lands of Lewis with his own means as alleged in the bill, and had the deed made to his wife, but denied that he caused the deed to be made to her to avoid the payment of his debts or to defraud his creditors, and averred that he caused the deed to be made to her in good faith, and with a view to secure a home for his family and that it was so agreed and understood at the time.
He also admitted that he purchased of Chandler the other tract described in the bill, and paid for the same with his own means, and caused the deed to be made in the name of his wife, but denied that it was with fraudulent intent or purpose to hinder or delay his creditors.
The cause was heard on the pleadings and evidence at the January term, 1876, and the court found that Vaughan purchased the lands described in the bill with his own means, and caused the deeds to be made to his wife to cheat, defraud, hinder and delay Turner in the collection of his debt, and de■creed that unless Turner’s judgment, interests, costs, etc., should be paid by the 1st of March following, the land should be sold to satisfy the same, and appointed the clerk of the ■court a commissioner to sell the lands under the decree.
On the 21st of June, 1876, Vaughan filed the bill in this suit, in the same court against Turner and A. P. Sanders, the ■commissioner appointed to sell the lands under the above decree.
The bill alleges that complainant accepted the draft drawn by Atkins upon him in favor of Turner on the 25th of May, 1871, that Turner obtained judgment against him on the draft 3d February, 1873, before a Justice of the Peace, that execution was issued and returned nulla bona ; a transcript filed in the office of the clerk of the Circuit Court, and execution issued thereon 10th March, 1873, and returned unsatisfied without levy.
That prior to the acceptance of the draft, complainant bought of A. K. Lewis, and paid for the N. E. 1-4 of sec. 14, and the S. W. 1-4 of the N. W. of section 13, T. 10 N. E. 8 W., 200 acres, which at the instance of complainant was, on the 27th of August, 1871, conveyed to his wife Amanda, by deed duly acknowledged and recorded. That he purchased the lands for a home for himself, his wife and children, and to thaq. ■end he had the deed made in the name of his wife. That since the purchase, in 1871, he and his family had resided, and still resided upon the lands, etc. That the same was his homestead, and he being a resident of the State, and the head of a. family, claimed that he was entitled to 160 acres of said lands upon which were his residence and improvements as his homestead, to-wit: The S. W. 1-4 of the N. W. 1-4 of sec. 13, and the S. 1-2 of the N. E. 1-4 and the N. W. 1-4 of the N. E. 1-4 of sec. 14, T. 10, N. E. 8 W., free from sale under execution or other process, or the lien of any judgment,Of decree of any court, the same not exceeding in value the ¡jgpt of $2,500. • r1
Complainant then gives the history of Turner’s suit agaipst. him and wife, and the decree therein as we have stated ¡^c|ve,. and makes a transcript of the decree an exhibit. _-,|p
Then alleges that having failed to pay the debt, etc.,,,at,Re-time fixed in the decree, the commissioner had advertised, tlje lands claimed by him as a homestead, with the other lancj., condemned by the decree, to be sold on the 24th of June, 1876,,j That he had applied to said' commissioner, claimjng-^e-above described lands as his homestead, and asking thaj; the-sale be suspended and superseded, which he refused. UTh^^f the sale should be allowed, it would be a-cloud uppn . hip. title, etc. , .
Prayer for restraining order as to the lands claime^.a^g, homestead, that said decree be reviewed and modified^-,and that upon the final hearing, the injunction be made perpetuar-on the presentation of the bill a temporary injunction granted. ^ ^
Turner answered the bill at the July term, 1876.
He admits the allegations of the bill relating to hi§ judgment against Vaughan, and the suit of himself .against. n ° r s?! .-Mil Vaughan and wife, and the decree therein rendered, and makes ° . ’ ■ 'Ijl ft/IS a transcript of the pleading in that suit an exhibit to ,1^8 answer. And avers that in that suit neither Vaughan, nór his wife claimed or pretended to claim any homestead right iii st^ijl lands, but rested their defense entirely upon other grounds, added a demurrer to the bill, and prayed that the temporary in ¡unction be dissolved.
The cause was submitted on the pleadings and iphjbiijs, ,and the court announced that it would dissolve the injunctipii, an^I dismiss the bill; whereupon complainant’s solicitor moved the. coui’t to suspend decree until be could consider what further steps he would take in the cause, which was granted.
On the same day of the term, the complainant hied a supplement to his bill, reciting the previous steps in the cause, and alleging that after the announcement by the court, he had filed in the office of the clerk of the Circuit Court a schedule-of the lands claimed by him as a homestead, etc., which was. exhibited, and asked the clerk for a supersedeas, which was refused.
Turner moved to strike out the supplement, which the court refused, atid he entered a demurrer thereto, which with the whole case was submitted, and the court overruled the demui’-rer, and rendered a decree enjoining the commissioner from selling the lands under the original decree, claimed and scheduled by complainant as a homestead, so long as he should, continue to use and occupy them as such.
From this decree Turner appealed to this court.
I. The decree condemning the whole of the lands to be-sold by a commissioner to satisfy Turner’s judgment, was rendered by the court below on Turner’s bill against Vaughan and wife, at the January term, 1876. The decree appealed from, enjoining the commissioner from selling the lands claimed by Vaughan as a homestead, was rendered upon this, bill at the July term following. After the expiration of a. term at which a decree is rendered, the court rendering the decree has no power to set it aside or modify it, except upon application under the statute, and for some cause therein specified, (Gantt's Dig. Secs. 359, 3602, 4692) or by bill of review under the Chancery practice. Jacks v. Adair, M. S.
The bill now before us does not make a case for setting aside-Or modifying the decree condemning the lands to be sold under-either practice, lb.
II. Counsel for appellant submits that if appellee had set up his homestead claim in answer to appellant’s bill it would have been unavailing. That no exemption can be allowed out ■of property which has been conveyed with intent to hinder, ■delay or defraud creditors. That the transfer is valid against 'the debtor, and in attempting to place his property beyond the reach of his creditors, he places his exemptions beyond his ■own reach.
In re Graham, 2 Bissell 449. Graham sold personal property to Hanton, to defraud his creditors, and was afterwards •'adjudged a bankrupt and the sale set aside, and he claimed the property as exempt, under a statute of Wisconsin. The court «aid: “They had no doubt conspired together to place the possession and apparent title in Horton, to defraud Graham’s 'creditors-, and were in the execution of that scheme when they were arrested by the proceedings of this court. And if the bankrupt has by his fraudulent acts deprived himself of the benefit of the exemption laws, it is a just retribution upon him. -A debtor not unfrequently cheats himself in trying to cheat his 'creditors, and his bankruptcy furnishes a striking example of such case. In his anxiety to place his property beyond the Teach of his creditors, he places his exemptions beyond his <own reach.”
It seems, however, from the current of adjudications, that a ■conveyance of lands set aside for fraud, at the suit of creditors, ■does not stop the grantor from claiming a homestead in the premises thus conveyed. Such a conveyance does not constitute an abandonment of the homestead such as opens it to creditors. Thompson on Homestead, see. 408, etc., and cases cited.
If, therefore, appellee had, in his answer to appellant’s bill, not only denied, as he did, that he procured the lands to be conveyed to his wife to defraud his creditors, but, as a further defense, shown that he had impressed the homestead character upon a part of the lands, and ashed' the' court if' it found the canveyance fraudulent and set it aside,, to. decree- to him the benefit of the homestead exemption provided fbr by the Constitution, the court should have so. decreed..
III. But having neglected to mahe such defense, and the court having, by its decree, condemned the whole of the lands to be sold by a commissioner in satisfaction of' appellant’s judgment, had appellee the right, after the decree, to) schedule a part of the lands as a homestead, under- the statute- providing for the scheduling of exempted property, and then upon his bill for that purpose, procure a decree enjoining-the commissioner from selling that part of' the lands claimed by him as a homestead ?
In Norris et al v. Kidd, 28 Ark., 486, the homestead claimant permitted the lands to be sold under an execution issued upon a judgment recovered against him, without scheduling the property, as required by the statute (Gantt’s Dig-, sec, 263 etc.,) and afterwards the homestead claim was set up as a defense to an action of ejectment brought by the purchaser, and it was held to be too late.
In Frits v. Frits, 82 Ark,, 327, the homestead was mortgaged, and to a bill to foreclose the mortgage, the answer set up the homestead claim (under the constitution of 1868) as a defense, and it was held that the defense could be successfully interposed by answer without scheduling the homestead under the statute.
It has been held that where a mortgage has been, made on homestead land, and a bill brought to foreclose, the mortgagor must plead the homestead exemption in defense, and if he neglects to do so, or pleads it, and the defense is overruled, and there is no appeal from the decree, he is barred from after-wards asserting the homestead claim against one who purchases under the decree of foreclosure, Larson v. Reynolds et al. 13 Iowa, 57; Haynes et al v. Meek, 14 Ib., 320; Lee et seq v. Kingsbury, 13 Texas, 68: Tadlock v. Eccles, 20 Ib., 783.
In Hayues etal v. Meek, sup., the court said : If the homestead right ever existed, it was lost to the claimant by his failing to set it up in the foreclosure proceeding, in other words, ho has had his day in court upon this alleged homestead right.
In Illinois the husband cannot alone release the homestead right, but he must be joined by the wife, hence it has been held that a foreclosure against the husband does not bar the wife, and she may interpose the homestead claim after decree. Rut if a writ is brought against her after she has become dis-court involving the homestead right, and she neglects to plead the homestead right, she is precluded by the decree. Wright et al v. Dunning, 46 Ill., 274. Thompson on Homesteads, sec, 715-721.
By our laws the homestead right of the wife does not attach until the death of the husband — she succeeds him in the homestead right, if he has it at his death. He may bar any homestead claim by her, by a conveyance in which she does not join, though he cannot thus bar her right to dower which attaches at the marriage. Johnson et al v. Turner, ad., 29 Ark., 281.
So “Where a judgment creditor brings a bill in equity to set aside a conveyance of certain realty of the debtor, as having been made in fraud of his rights, if the debtor would set up a right of homestead in the premises, he must do it in that suit. If a decree has been entered divesting him of all right and interest in the premises, and directing them to be sold, and they have been so sold, and the purchaser brings ejectment, the debtor cannot, in this action, set up a right of homestead in the premises, he must do it in that suit. The decree in equity cannot be thus collaterally questioned. So, if the bill is taken for confessed, a final decree entered, and the premises sold thereunder, and the defendant refuses possession, claiming to hold under the homestead law, he cannot assert this right in opposition to the granting of a writ of assistance.” Thomp-s'óii tin Homesteads, sec. 726.
Miller v. Sherry, 2 Wallace, 237, was a creditor’s bill, like Türribr’s, and the property claimed as a homestead was sold •under the decree, the debtor having failed to plead the homestead right, in the suit to set aside a fraudulent conveyance. The court, by Justice SwayNE, said : “In regard to the homestead’fight, claimed by plaintiff in error, there is no difficulty. The' decree under which the sale was made divested the defendant ‘of all right and interest in the premises. It cannot be col-Méi-all'y questioned. Until reversed it is conclusive upon the parties,'” etc.
dlh this case the lands claimed as a homestead had nob been sb'ld When the bill for injunction was brought, but the object of tlif^bill was to prevent the sale by the commissioner under the decree condemning- them to be sold.
The lands were as effectually condemned to be sold by the decree as mortgaged premises are upon a decree of foreclosure.
JThe court did not merely set aside the fraudulent conveyances which appellee procured to be made to his wife, and remit appellant'to his remedy by execution upon his judgment at law, {which was in effect the character of the decree, or order of sale in Sears et al v. Hanks et al., 14 Ohio St. R., 298, relied oh by-counsel for appellee) but it directed the sale under its own decree, and could not upon the facts of the case, have done otherwise.
; Tlie title to the lands was never in appellee, Vaughan. ITe purchased'the lands, and procured the vendors to convey them by deeds to his wife. The title to the lands was in her when Turner filed his creditor’s bill against husband and wife, and when the decree in that suit was rendered. Had the decree merely set aside the deeds made to her as fraudulent, and re mitted Turner to bis execution on. bis judgment against tbe bus-band, a sale under tbe execution would not bave carried title to» the purchaser; hence it was necessary to condemn the lands, to be sold under tbe decree, in order to carry tbe wife’s legal-title to the purchaser.
Tbe Constitution of 1868, which was in force when the debt,, upon which Turner’s judgment was obtained, was contracted,, provides that the homestead shall be exempted from sale oa execution, or any other final process from any court. Art.. XII, sec. 3; Constitution of 1874, Art.. IX, sec. 9. Yet it, was held in Norris et al v. Kidd,, sup., that the homestead claim was lost if the property was not scheduled before sale under execution. So we think it is lost where there is a bill in-rem to condemn the homestead land to-be sold to satisfy a debt,, and the claim is not interposed before decree, and the decree, becomes final, and passes from under the control of the court rendering it, as in this case.
If it be said that it is a hardship- for- a man to lose his homestead exemption because he failed to- assert it at some particular time, or in some special mode, or in some particular proceedings ; it may be replied, that such is the law in relation to any defense which a man has an opportunity to make, and fails to. interpose it. If sued on a paid, or- barred demand, and he-fails to plead payment or limitation, he is precluded by the judgment, in the absence of fraud, etc.. Conway v. Ellis, 17 Ark., 365.
The decree of the court below must be-reversed,, and a decree-entered here dismissing appellee’s biE for inj.un.eti.on.. | [
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Eakin, J.:
On November 27, 1875, Shinn sued Tucker before a justice of the peace upon three notes under seal, all bearing date-. January 1, 1861. They are all expressed to be for value received, and contain a promise to pay the respective sums of' each, generally, without specifying any time. In effect they are notes payable on demand. Each note has a credit endorsed: one March 28, 1864, one January 15, 1869, and. the other December 1, 1870.
The defendant pleaded payment, and the statute of limitations. Judgment was rendered in his favor, and plaintiff' appealed to the Circuit Court. There the defendant was. allowed to put in an amended plea without verification. The-amended answer repeated the pleas of payment and limitation,, to which plaintiff replied, as to each of the notes, a promise within ten years. There was no proof of payment adduced, upon trial. The plaintiff showed that the several endorsements of credit had been made before the statute bar had. attached. As to whether the particular sums, credited upon each note, had been paid by the defendant for the purpose of' being so applied, or had been so applied by his consent, the-proof was conflicting, and this court would not disturb the-verdict of the jury, so far as it implies that these payments did not form new points from which the statute would commence running. The jury found for defendant, upon which followed judgment, motion for new trial, bill of exceptions, and appeal.
The material question presented by the record is, was the-action brought within the period allowed by the statute of limitations, leaving the credits out of view. Upon this point the instructions of the court, viewed as a whole, were to the effect: That the right of action of plaintiff accrued on January 1, 1861, and would be barred at the end of ten years, unless there had been such part pajunent as would make a new point from which the statute would run; but that the statute did not run between May 6, 1861 and April 2, 1866, which intervening time was not to be computed, and that the jury, in computing the time of ten years, must include the day of the date of the writings, and exclude the day on which the summons issued.
The writings were payable immediately, and payment might have been demanded at once. They were not entitled to grace. There was no error in telling the jury that the day of their execution must be included in the estimate, accompanied with the direction that the day of the issue of the summons must be excluded. There has formerly been much labored discussion in the English and American courts, and much conflict of opinion as to the true method of computing time from one act or event to another. We are happily spai'ed from entering into it by our statute, which furnishes the following plain and concise rule for all cases. Sec. 5698 of Gantt’s Digest provides that “ when a certain number of days are required to intervene between two acts, the day of one only of the acts may be counted,” and the rule applies equally when a certain number of years is mentioned, as years may be resolved into a certain number of days, and uniformity of principle must be preserved. Applying that rule here, it was proper to advise the jury to include the day of the first act or event, the execution of the writing, and to exclude the day of the last event, to-wit: The issuance of the summons, and if they should find that the suit was not in ten years, to find for defendant.
And the same rule must be applied to the time to be excluded from the computation on account of the war, to-wit: From the act of secession on May 6, 1861, to the proclamation of the president on April 2, 1866, declaring the war, as to Arkansas, closed, making a period of four years, ten months and twenty-seven days, allowing for the thirty-one days in March.
This period, for the suspension of the statute, was definitely fixed by this court in the case of Hall v. Denchla, 28 Ark., 506. In that case no close calculation of time to a day was necessary, and the court inadvertently use this expression: “We find that the statute of limitations ceased to run between* May 6, 1861 and April 2, 1866, by reason of the civil war.”
This formula of expression was adopted by the Circuit Judge in the instruction, and literally construed by the jury may have induced them to exclude both days in the estimate of the time to be left out of the calculation, making a period of only four years, ten months and twenty-five days, when, by the statute, one or the other of the days should be included. The word ‘ ‘ from ’ ’ would have been more proper than the word “ between.”
With regard to all sealed instruments as these were, against which the statute had commenced running oh May 6,1861, and which were not already barred at the time of the adoption of the Constitution of 1874, the actual time of limitation was fourteen years, ten months and twenty-seven days. Including January 1, 1861, this period would expire at midnight on November, 27, 1875, but as this calculation is made exclusive of the day allowed for the issuance of the summons (inasmuch as the day when the writings were made is included) the summons would have been in time on the 28th. It was certainly within time on the 27th, in any view of the case.
Obviously, the jury were mistaken in their calculations. They could not have brought in a verdict for the defendant upon the proof, upon any other ground than the bar of the statute, which, as we have seen, had not attached.
Other errors were assigned, which it is not important to notice.
For the error in the verdict which was not only contrary to •evidence, but ths instructions of the court, the judgment must be reversed and the cause remanded with directions for a new trial. | [
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HarrisoN, J.:
This was a suit in equity by Richardson & May, the appellants, against John C. Hamlett and Alice R. Hamlett, his wife, and James W. Abell and Emma G. Abell, his wife, the object of which was to establish and enforce a lien on certain lands for the payment of a note given for purchase money.
The complaint alleges that Samuel P. Weisiger, in his individual capacity and also as executor of Lucy Weisiger, deceased, and Thomas N. Lindsey, on the 22d day of September, 1873, sold the lands to John G. Morgan for $ 12,000 — for $4000 of which sum the said Morgan gave them drafts on T. H. and I. M. Allen & Co. of New Orleans, and for the remainder, two notes for $4000 each, payable respectively in one and two years, from the 1st day of January, 1874, bearing 8 per cent. interest from the latter date until paid ; and that the said Weis iger and Lindsey executed to him a deed for the lands.
That it was in the sale and purchase of the lands also agreed that Morgan should execute to the vendors a mortgage on the lands, to secure the payment of the drafts and notes, which agreement was stated in the deed, but that the mortgage was never executed.
That Morgan died in 1875, intestate, leaving a widow, Emma L. Morgan, and the said Alice R. and Emma Gr., and Lula L. Morgan, who is an infant, his heirs at law, and that the said John C. Hamlett is the administrator of his estate.
That the said Emma L. Morgan, in consideration of the transfer to her and the said Lula L. of certain property belonging to his estate in Alabama, and other matters not stated, released to the defendants her dower, and as the guardian of said Lula L. her interest also, in the lands and other property of the said John Gr. Morgan’s estate in Arkansas. That the defendants are in possession of the lands. That the drafts and the note first due, have been paid. And that the plaintiffs are the assignees and holder’s of the second or last note, which with the exception of $840.48, paid on the 10th day of May, 1876, is still due and unpaid.
The defendants demurred to the complaint on the ground that it did not state facts sufficient to constitute a causo of action. The court sustained the demurrer, and dismissed the complaint.
Had there been no agreement for a mortgage or other security, there could be no question that the vendors would in equity have had a lien on the lands for the purchase money, which, as it appears upon the face of the deed,' that the purchase money was not paid, would have enured to the plaintiffs upon the assignment of the note to them, accordingto the provisions of sec. 564, Gfantt’s Digest (Act, 1873). Yet, though they contracted for a different security, from which the presumption arises that it was not their intention to rely on that, the failure of the vendees to give the mortgage, did not have the effect to deprive them of the security bargained for, much less of all security whatever.
Equity looks upon that as done, which ought to have been done. Judge Story says : “All agreements are considered as performed, which are made for a valuable considaration, in favor of persons entitled to insist upon their performance. They are to be considered as done at the time, when, according to the tenor thereof, they ought to have been performed. They are, also, deemed to have the same consequences attached to them; so that one party, or his privies, shall not derive benefit by his laches or neglect; and the other, party, for whose benefit the contract was designed, or his privies, shall not suffer thereby.” 2 Story Eq. Jur. sec: 64 g; 1 Perry on Trusts, sec. 231; Craig v. Leslie, 3 Wheat. 563; Atwood v. Vincent. 17 Conn. 565; Jackson v. Small, 34 Ind. 241.
The rights of the plaintiffs are, therefore, the same as they would have been, had the mortgage been executed in accordance with the agreement.
Under what authority Lula L. Morgan’s interest was released by her guardian, does not appear, but that is not a matter for our consideration. Not being a party to the suit, her rights, whatever they may be, will not be in any way affected by the decree, it being a principle everywhere admitted, that the rights of no one shall be decided in a court of justice, unless he be present.
We are of the opinion that the complaint does contain sufficient equity, or such fa'cts, as constitute a cause of action, and that the demurrer ought to have been overruled ; the decree is therefore reversed, and the cause remanded for further proceedings. | [
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Eaicin, J. :
Worthington sued Ward in replevin, before a justice of the peace, stating in his affidavit, that his claim was “for 372 pounds of lint cotton, of the value of $37.20, which cotton is the one-half of the undivided crop made by him on Joe Ward’s farm,” “ which he is entitled to for cultivating said crop.” A writ was issued, some cotton seized, and a delivery bond •executed by defendant, to retain the property. After some very irregular proceedings, a very irregular verdict and judgment was rendered for plaintiff, and defendant below appealed to the Circuit Court.
There he filed an answer, denying that plaintiff owned the •cotton, or was entitled to possession ; and,
2d. Alleging that plaintiff owed him twenty-eight dollars for supplies, and money advanced; and had agreed to let him have a lien on said cotton, and hold it. A demurrer to the second paragraph was overruled. Upon trial in the Circuit Court the jury found for the plaintiff, that he have return of the cotton replevied, valued at $37.20. Defendant moved for a new trial, which being overruled, he excepted and appealed.
There was no evidence whatever of defendants’ lien. If we might notice a paper appended to the transcript and marked filed, it would appear that defendant moved for a continuance ■on account of the absence of a witness, who would prove that plaintiff acknowledged the existence of a lien ; and an entry of record showing that the plaintiff, upon a motion for a continuance being sustained, agreed to admit the facts stated therein, upon which the parties went to trial. But all these matters =are omitted from the bill of exceptions, and cannot be noticed. (P. &. Z. Phillips, v. Reardon & Son, 2 Eng., 7 Ark., p. 256.
For the rest, the substance of the evidence made this case. Worthington, the plaintiff, cultivated a crop of cotton on the farm of defendant. They hauled it together to a gin, and directed the ginner to put it up in two bales, one for each ; the plaintiff furnishing for the purpose his own bagging and ties. It was ginned and put up in two bales, one weighing over 400 pounds, and the other over 300 pounds. The defendant brought 300 pounds of seed cotton of his own, which was also ginned and put up in the smaller bale. Both were removed by defendant. Cotton was worth from 10 to 11 cents per pound.
Although the Code has abolished the distinction between the old common law forms of action, the proceeding by replev-in is peculiar; being intended for the recovery of specific property. Its distiuct nature and requisites must be preserved or the practice will fall into confusion. The recovery is for a specific article which must be identified, or for its value, which must be ascertained. Otherwise, however plain the rights of a party may bo to a money compensation, this form of action •ought not to be sustained. It is prompt and dangerous ; and those who resort to it should be careful to bring their cases by" proper evidence within its provisions and requirements.
There was no evidence before the jury of any division of the-crop, consummated by assignment and appropriation of a part, to each. The baling in two parcels was with a view to that,, but neither the weight nor value of bales was established,, except by remote approximation, nor was it shown that any assignment of a particular bale to each was made, so that he might say “this is my property.” It is not shown that tim-bales were equal in weight or value. The jury seem to have taken it as confessed by the pleadings before the magistrate,, and in the Circuit Court that the bale replevied weighed 372 pounds, because there was no distinct denial of that in the answer. There was no proof of it at all. It was sufficient for the answer to deny the property of plaintiff, and that did not of itself amount to an admission of its alleged value. Gantt’s. Digest, 4608, nor of its description.
The remedy, by replevin, for an undivided part of a crop, was not proper in the first place. The point was not taken and the case was tried on the merits, but it did not relieve the-plaintiff from showing facts to maintain his action. We think, the facts shown did not authorize the verdict, and a new trial should be granted.
Let the judgment be reversed, and the cause remanded for*the purpose. | [
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Griffin Smith, Chief Justice.
Lewis and Frances Rhoton, now deceased, left a daughter, Frances Rhoton Askew. Mrs. Askew, as executrix and trustee for her brother, Riff el G. Rhoton, under the mother’s will, sued to have a lien declared and foreclosed on Lot 10, Block 11, Faust’s Addition to Little Rock. The lot was sold by the Photons to W. L. Fodrea March 1, 1921, for $2,500. Of this amount $100 was paid in cash and a note for $2,400 payable in installments of $20 over a period of 120 months was executed, each payment to draw interest at 8% from date.
Fodrea took possession at once and erected a sheet iron building on the back part of the lot. He paid taxes and met installment payments until 1930. Early in 1932 Mrs. Bhoton, with Fodrea’s consent, took possession of a residence on the property, whereupon Fodrea moved into the sheet iron building where he remained until death. From proceeds of a judgment assigned by Fodrea Mrs. Bhoton collected $1,048.08 and applied it to the indebtedness. Through what appears to have been a cooperative purpose to make the property produce revenue the residence was converted into apartments of small capacity — six in all. In this undertaking Mrs. Bhoton spent $4,700 of her own money and made other improvements costing $593. In 1934 Fodrea paid $300 additional, but with this exception nothing more was paid, either as principal, interest, insurance, taxes, or upkeep.
Mrs. Askew’s suit was filed in May, 1945, before Fodrea died. The decree resulting in this appeal was rendered in July, 1953.
Much of the matter in controversy was stipulated after records had been examined and preliminary evidence heard. In a comprehensive opinion dealing with the various items the Chancellor found that unpaid obligations were in four categories: (1) Balance of original note, with interest, $1,862.49; (2) permissive expenditures for construction, etc., with interest, $11,644.60; (3) authorized expenditures made by Mrs. Bhoton in 1934 — ’7—’9 and ’41, with interest, $1,710; (4) taxes and rental expenses, $15,256.56, with interest.
The lien was found to be $16,790.52, but with interest added it amounted to $30,473.65. But the appellant was entitled to a credit of $8,250 plus interest, or $12,805.71.
Embraced within ‘ ‘ taxes and rental expenses ’ ’ were allowances for furniture purchased from time to time by the plaintiff. It was stipulated that furniture was not provable as an element entering into rental value of the property. The Chancellor, therefore, took the view that with the exception of the reconstructed sheet iron building in which Fodrea resided appellant’s predecessor was in possession with Fodrea’s complete acquiescence and that the joint enterprise contemplated a hands-off policy by Fodrea and a duty upon Mr. Rhoton’s part to rebuild the property, purchase furniture, assume the obligation of renting and collecting, and in other respects cause the property to yield a maximum return.
It is not denied that $425 of the money Mrs. Rhoton spent in rebuilding went into the separate structure Fodrea occupied for so many years; that he did not pay taxes, upkeep of any kind, or even utility bills for his own quarters. Therefore, said the Chancellor, (in effect) the stipulations could be fairly construed as a willingness upon Mrs. Rhoton’s part to apply whatever time and effort might be required to keep the property in demand condition, solicit tenants through advertisements, and by telephone when inquiries were made; purchase at her own expense the needed furniture, — and, in short, to generally supervise all operations necessary in producing an income.
On the other hand Fodrea was not willing or able to either pay the original debt in full, or compensate Mrs. Rhoton for added investments. After the apartments were built Mrs. Rhoton’s expenditures had been considerably greater than Fodrea’s original $2,500 contract.
Over a period of twenty years gross rental collections amounted to $29,611.52. Witnesses skilled in real estate transactions testified regarding the relative value of property furnished and unfurnished. Taking into account the implied contractual relationship of the partios. the court found that unfurnished the apartments would have yielded $8,250, or 27.86% of the gross income of $29,611.52, and that with interest this should be $12,805.71. The net balance was then ascertained to be $17,667.94, for which judgment was rendered, with an order of foreclosure.
The method of computation is challenged. In particular it is urged that the ratio of rental income in relation to furnished apartments and the naked property as rebuilt for apartment purposes is grossly unjust. There was testimony that ordinarily apartment property unfurnished was thought of as having three-fourths of the value of furnished quarters. But there was also testimony that because of undesirable conditions attaching to the apartments in question there were protracted periods — particularly during the depression years — -when for want of furniture the quarters would have been occupied only about 30% of the time.
TVe are affirming the Chancellor’s findings in spite of the seeming discrepancy. In Fodrea’s response and motion, made May 29,1947 — -slightly more than two years after the complaint was filed — there is a recognition of rights accruing to Mrs. lihoton superior to the ordinary relationship of mortgagor and mortgagee in possession. Mention i« made of the plaintiff’s undertaking ‘ ‘ to make certain repairs and betterments to the improvements situated upon the lands described in the complaint and to advance the funds for the payment thereof upon condilio.n that the defendant would consent that they take and hold possession and custody of said improvements as thus repaired and bettered, rent the same, collect the rentals derived therefrom, pay thereout the reasonable cost of operation, inchtding taxes and insurance, and apply the net rentals to the liquidation of the balance [of the debt].”
In the same pleading there is a reference to the plaintiff’s right to retain “the necessary and reasonable costs and expenses incurred and expended in the production of such rentals.”
The rule that a mortgagee in possession is not entitled to recover the value of permanent improvements to the land, bnt only the cost of ordinary repairs, is not disputed. Morgan v. Mahony, 124 Ark. 483, 187 S. W. 633. Nor is it contended that one who takes possession for the purpose of enforcing his lien is not a mortgagee in possession in respect of rights and obligations resulting» from such possession. McGinnis v. Less, 147 Ark. 211, 227 S. W. 398. See, also, Denham v. Lack, 200 Ark. 455, 139 S. W. 2d 243.
When it is remembered that Mrs. Bhoton handled the property with Fodrea’s complete acquiescence during the depression period and no doubt, by the policy pursued, created a condition that gave Fodrea a home for life tax-free, utilitiesTree, and unhampered in all respects, and when weight is given to other factors, such as the death of all persons who could verify or deny essentials; the long-time acquiescence of Fodrea in-'financial administration and management of the property, and the utter impossibility of saying at this late date that the parties were not in complete accord regarding Mrs. Bhoton’s management,' — -with these facts before us we are not willing to say that the Chancellor erred in appraising the weight of evidence, or in the theory upon which the case was decided.
Affirmed.
An order of Jan. 11, 1S52, recites the death of W. L. Fodrea May 16, 1951; that Mrs. Charlseye H. Braun and Mrs. Margaret D. Goforth (daughters) were his sole heirs, and that Mrs. Braun was appointed administratrix June 4, 1951. The cause of action was revived in their names. In a separate answer of April 14, 1952, Mrs. Goforth stated that all of her interests had been conveyed to Mrs. Braun. [Lewis Rhoton died in 1936 and Bessie Riffle Rhoton, his wife, died in 1944.]
ín all instances interest was computed to Dec. 31, 1952. | [
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Per Curiam.
In a per curiam opinion handed down July 5, 1984, see 12 Ark. App. 415, we pointed out that criminal cases and certain civil cases are given preference by law as to the order in which they are submitted to the Arkansas Court of Appeals. In that opinion, we set out a procedure whereby the “other” civil cases could be placed on an accelerated civil list. Under Act 770 of 1985, criminal cases, child custody cases, appeals under the Workers’ Compensation Law and the Employment Security Law, and appeals from the Public Service Commission are now given preference over all “other” civil cases. Experience has convinced us that we should now modify the procedure adopted by our per curiam of July 5, 1984.
Therefore, effective today, if an attorney files a motion in this court asking that a civil case, which is not now entitled to preferential submission, be placed on an accelerated civil list and states the reason for the request, the court may grant that request if all the briefs have been filed in the case.
A copy of any such motion shall be given to opposing counsel and a certificate to that effect endorsed on the request. | [
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James R. Cooper, Judge.
This is an appeal of a decision by the Pulaski County Circuit Court awarding the appellee damages in the amount of $16,093.39, $12,095.00 of which was awarded by the jury for services rendered in connection with “extra ditching” and $3,998.39 of which represented contract costs awarded by the judge, plus prejudgmerit interest on that portion of the judgment representing contract costs. The appellant contends the court erred in (1) failing to direct a verdict in its favor, as the appellee failed to show (a) any consideration for the alleged promise to pay extra for the ditching, (b) any waiver of the contract provisions requiring written approval of extras and determination of the quantity of work by the engineers, Garver & Garver, Inc., or (c) sufficient evidence to allow the jury to determine damages without resorting to sheer speculation; (2) failing to instruct the jury that they must find a definite agreement to pay for the alleged extra work; and (3) giving an improper jury instruction on damages. The appellee contends on cross-appeal that the court erred in failing to award it prejudgment interest on the portion of damages relating to the costs of the “extra ditching.” The portion of the judgment representing the contract costs has not been appealed. Because we find merit in the appellant’s contention that the trial court should have directed a verdict in its favor, on the basis that the appellee failed to show any consideration for the alleged agreement to pay him extra for the ditching, we need not reach the other points raised in the appeal and cross-appeal,
The appellant was the general contractor on a project to build an extension of a railroad for the Little Rock Port Authority. The appellee entered into a subcontract agreement with the appellant in January 1982 to do the excavation and dirt work on the project, which provided that the appellee would perform the work according to the plans and specifications provided by Garver & Garver, Inc. The problem in this case arose when the water would not drain out of the ditches the appellee constructed because the culverts through which they were to drain were clogged off of the jobsite. This caused the ditches to collapse, requiring the appellee to repeatedly have to redig the ditches. Larry Moyer, owner of the appellee, testified that, because of this problem, which began shortly after he started working, he told the appellant’s representative, Alan McElhaney, that he would not continue to work without extra pay for redigging the ditches. He stated that McElhaney agreed to this.
The Port Authority’s Invitation to Bid required each bidder to make an inspection of the jobsite, stating, Moyer testified that the contract required him to make this inspection, that he did do so, and that there was nothing stopping him from inspecting the culverts. He also admitted that he was required under the contract’s plans and specification to build the drainage ditches to meet the specifications and be up to grade at the time the project closed. Moyer acknowledged that that was precisely what he accomplished.
Each Bidder should visit the site of the proposed work and fully acquaint himself with the existing conditions there relating to construction and labor, and should fully inform himself as to the facilities involved, and the difficulties and restrictions attending the performance of the Contract. . . .The Contractor by the execution of the Contract shall not be relieved of any obligation under it due to his failure to receive or examine any form or legal instrument or to visit the site and acquaint himself with the conditions there existing and the Owner will be justified in rejecting any claim based on facts regarding which he should have been on notice as a result thereof.
Under Arkansas law, there must be additional consideration when the parties to a contract enter into an additional contract. Buchanan v. Thomas, 230 Ark. 31, 320 S.W.2d 650 (1959); Feldman v. Fox, 112 Ark. 223, 164 S.W. 766 (1914). In Buchanan, the subcontractor sent a bid by wire to the contractor which, apparently through the error of the telegraph company, was transmitted as about twenty-five percent lower than the subcontractor’s intended bid. Based on this lower bid, the contractor submitted his bid to the owner and informed the subcontractor that he intended to hold him to the lower bid. The subcontractor performed the work and alleged at trial that it was only done after the contractor agreed to pay him half of the difference between the two bids. The court found that the subcontractor had already contracted to do the work for the lower price, found there was no consideration for the oral modification of the contract, citing Feldman, and held that the subcontractor was not entitled to extra compensation. In Feldman, the court, in holding no consideration existed for a contract raising the price of crops that the seller was already obligated to sell to the buyer, stated:
If no benefit is received by the obligee except what he was entitled to under the original contract, and the other party to the contract parts with nothing except what he was already bound for, there is no consideration for the additional contract concerning the subject matter of the original one. Thompson v. Robinson, 34 Ark. 44; 1 Brandt on Suretyship and Guaranty, §387; 1 Page on Contracts, §312.
“Mere performance of an existing contract or a part thereof,” says Mr. Page in the section cited above, “is of itself no consideration for a new promise to the party performing. * * * If, without legal justification, one party to a contract breaks it, or threatens to break it, and to induce performance on his part the adversary party promises to pay more than was provided for by the original contract, there is in principle no consideration for such promise, as the party who threatens to break the contract does, when he finally performs it, no more than he was bound in law to do.”
112 Ark. at 226.
Here, the contract admittedly required the appellee to dig the ditches so that he met the specifications at the time the project was approved, and it is undisputed that that is what the appellee did. Where the work performed is covered under the terms of the contract, as here, there can be no recovery for it as extra work. Baton Rouge Contracting Co. v. West Hatchie Drainage District of Tippah County, 304 F. Supp. 580, 585 (N.D. Miss. 1969) (where contractor is able to complete a drainage canal in accordance with specifications, although plagued by slide-ins, he is not entitled to extra compensation for the extra work occasioned by the slide-ins). Here, as in Baton Rouge, the appellee had the duty to acquaint himself before bidding with the conditions, nature, and extent of the work to be performed, and the condition of the culverts in question could have been taken into account. In Arkansas, it is settled that “[ijnconvenience or the cost of compliance with the contract or other like thing cannot excuse a party from the performance of an absolute and unqualified undertaking to do that which is possible and lawful.” Polzin v. Beene, 126 Ark. 46, 50, 189 S.W. 654, 655 (1916); Hurley v. Horton, 213 Ark. 564, 211 S.W.2d 655 (1948). Accord, Baton Rouge, 304 F. Supp. at 585 (“Where one agrees to do, for a fixed sum, a thing possible to be performed, he will not be excused or become entitled to additional compensation because unforeseen difficulties are encountered.”). Here, the appellee did no more than was required by its contract; the unforseen clogged culverts merely made it more difficult. The appellant has received no additional consideration for its alleged promise to pay extra, having gotten no more than it bargained for in the first place. Therefore, the jury verdict in the amount of $12,095.00 for the “extra ditching” must be overturned.
There has been no appeal of the award of $3,998.39 for costs under the contract. While a single, inseparable verdict may not be divided, we have the power to divide two causes of action in a circuit court judgment, so long as we are not dividing a single jury verdict. Westinghouse Credit Corp. v. First National Bank of Green Forest, 241 Ark. 287, 407 S.W.2d 388 (1966). See also McVay v. Cowger, 276 Ark. 385, 635 S.W.2d 249 (1982); Welter v. Curry, 260 Ark. 287, 539 S.W.2d 264 (1976). Here, we are striking the jury’s entire verdict, dealing with appellee’s claim for expenses for “extra work,” and upholding the directed verdict entered for the contract costs. We are dealing with two verdicts, each of which encompasses a separate cause of action, in one judgment. Therefore, we can, and do, modify the judgment by deleting the jury’s award and affirming the award of $3,998.39 for contract costs and the prejudgment interest thereon.
Affirmed as modified.
Cracraft, C.J., and Corbin, J., agree. | [
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Lawson Cloninger, Judge.
The sole issue in this single-brief appeal is whether an accord and satisfaction had been reached in a contract dispute. We hold that the evidence fails to support the trial court’s finding of accord and satisfaction, and we reverse and remand this matter.
Appellant, Dyke Industries, Inc., supplied appellee, Mike Waldrop, with materials for a house appellee was building for his sister, Brenda Wilson. For several years appellee had done business with appellant and had maintained an open account. During construction, Wilson made payments on her brother’s account; these were delivered to appellant’s office by appellee.
On February 8,1984, Wilson mailed a check to appellant in the amount of $2,699.51 and added a notation stating “Customer No. 1525 — Wilson Job — Paid in Full.” Before cashing the check, appellant notified appellee by three letters that the account was not paid in full. The balance outstanding, as of June 20,1983, was $1,218.34. Appellant was informed by Wilson that she had written a check dated July 8,1983, to her brother in the amount of $1,218.34. This payment was never received by appellant, and at trial appellee denied that he had ever received the check from his sister.
Appellee did not dispute the amount appellant claimed was owed but insisted that he had neither received nor cashed the check. Appellant filed suit against appellee for $ 1,347.90, a figure representing the total amount owed, plus interest and costs. The trial court held that because the check of February 8,1984, bore the notation “Paid in Full,” an accord and satisfaction had been reached and appellee owned no money. From the judgment for appellee, this appeal arises.
An accord and satisfaction generally involves a set tlement in which one party agrees to pay and the other to receive a different consideration or a sum less than the amount to which the latter is or considers himself entitled. Jewell v. General Air Cond. Corp., 226 Ark. 304, 289 S.W.2d 881 (1956). Before there can be an accord and satisfaction, there must be a disputed amount involved and a consent to accept less than that amount in settlement of the whole. Widmer v. Gibble Oil Co., 243 Ark. 735, 421 S.W.2d 886 (1967). Acceptance by a creditor of a check offered by the debtor in full payment of a disputed claim is an accord and satisfaction of the claim. Pillow v. Thermogas Co. of Walnut Ridge, 6 Ark. App. 402, 644 S.W.2d 292 (1982).
At trial, appellee acknowledged that he had “no reason to doubt” that the amount appellant claimed was owing on the account was accurate. Hence, there was no dispute concerning the amount of the debt. In Widmer v. Gibble Oil Co., supra, the Arkansas Supreme Court held that a check bearing the notation “full payment of all accounts to date” which was cashed by the creditor did not constitute an accord and satisfaction in the absence of evidence that the debtor denied that he actually owed the full amount demanded. The court quoted with approval the following passage from 6 Corbin on Contracts, § 1277:
It is not enough for the debtor merely to write on a voucher or on his check such words as “in full payment” or “to balance account,” where there has been no such dispute or antecedent discussion as to give reasonable notice to the creditor that the check is being tendered as full satisfaction.
In the instant case, appellant had no notice from appellee or his sister, through either dispute or discussion, that the February 8, 1984, payment would be final.
Appellee asserted at trial that he didn’t owe the balance because he had not paid any of the bills throughout the period of construction. Yet there was evidence that his sister had written him a check on July 8,1983, for the amount owed as of June 20, 1983. Moreover, payments were made on appellee’s open account, for which appellee was ultimately responsible. The third party’s assumption that she had paid the account in full could not absolve appellee of liability when he did not dispute the claim.
Under Rule 52(a), A.R.C.P., we do not set aside findings of fact unless they are clearly erroneous, i.e., clearly against the preponderance of the evidence. Due regard is given the opportunity of the trial court to judge the credibility of the witnesses. Despite our deference to the trial court on questions of witness credibility, in view of appellee’s own admission of an absence of dispute, we hold that the finding by the trial court that there was an accord and satisfaction absolving appellee of his debt is clearly against the preponderance of the evidence.
Reversed and remanded for proceedings not inconsistent with this opinion.
Glaze and Cooper, JJ., agree. | [
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James R. Cooper, Judge.
The issues on appeal in this workers’ compensation case are whether the Commission erred in reinstating the appellant, Second Injury Fund, as a party to the proceedings before the administrative law judge and whether the Commission erred in directing the administrative law judge to allocate liability between the appellant and the appellee insurance carrier. We reverse and remand so that the appellant will be afforded the opportunity to present evidence to the administrative law judge on the threshold question of liability and the applicability of Ark. Stat. Ann. Section 81-1313(i) (Supp. 1983).
The appellee Ray Davis, the claimant, sustained a lumbar spine injury in June 1981, while employed by the appellee Mid-State Construction Company (hereinafter Mid-State). At a hearing before the administrative law judge, at which Davis, Mid-State, and Mid-State’s insurance carrier were present, the administrative law judge joined the Second Injury Fund on his own motion (after all of the parties declined to do so). Since the appellant was not represented, the administrative law judge treated the proceeding as a preliminary hearing to obtain the testimony of the parties present; the law judge reserved final determination on the merits until the Second Injury Fund had an opportunity to read the transcript and depose any witnesses.
The administrative law judge issued an interim order in August, 1983, dismissing the appellant from the proceedings because of the parties’ refusal to join the Second Injury Fund under Commission Rule 24. Counsel for Mid-State responded with a letter to the administrative law judge which objected to the dismissal and proposed several alternatives to the dismissal order. The administrative law judge subsequently issued his opinion and order finding, inter alia, that:
5. At the time of his June 4,1981 compensable injury, the claimant was not suffering from a disability in the compensation sense as . . . contemplated by Ark. Stat. Ann. Section 81-1313(i) (Supp. 1983).
6. Claimant’s present degree of disability is solely attributable to his June 4, 1981 injury ....
9. For reasons mentioned in this order and in the Interim Order of August 8, 1983, the second injury is not a party respondent here.
The administrative law judge concluded that “were the second injury fund a party to this claim, it would escape liability based upon the medical reports and claimant’s insistence that neither his 1959 neck injury nor the loss of vision in his right eye affected his earning capacity as of the date of his June, 1981 compensable injury.”
Mid-State and its insurer appealed to the full Commission, contending, inter alia, that the administrative law judge erred in making the findings quoted above. The Commission found that the claimant had a preexisting disability at the time of his lumbar spine injury, and said:
From our de novo review of the record in this case, we hold that these preexisting conditions together constitute a previous disability or impairment within the meaning of the statute.
The Commission then reinstated the Second Injury Fund as a party and remanded the case for further proceedings, directing the administrative law judge to “allocate the compensation liability among the parties hereto in accordance with Ark. Stat. Ann. Section 81-1313(i), giving the Second Injury Fund credit for the amount of claimant’s disability or impairment which preexisted his compensable injury.” [citation omitted] Then, finally, the Commission’s order states:
The Second Injury Fund is hereby reinstated as a party and shall be given a reasonable time to adduce evidence going to any issue in this case affecting its liability before its liability is determined, [emphasis added]
On appeal to this Court, the Second Injury Fund contends that the Commission erred in reinstating the Fund as a party because the appellees waived their right to join the Fund by refusing to move to do so at the hearing before the administrative law judge. We disagree, but we note that the insurance carrier and the employer are the parties who benefit from Second Injury Fund involvement in appropriate cases and it should be their responsibility to join the Fund where their defense is based on the theory that an initial injury is contributing to the total amount of disability following the second injury. Although the Arkansas Rules of Civil Procedure are not binding in workers’ compensation cases, Ark. Stat. Ann. Section 81-1327(a) (Supp. 1985), ARCP Rule 20 would seem to provide appropriate guidance in Second Injury Fund cases.
As to the case at bar, from a reading of the Commission’s opinion, quoted above, we cannot tell what the Commission intended. Although the Commission seems to have finally decided that the appellant’s preexisting conditions did constitute an impairment or disability under the statute, the Commission then remanded the case to the administrative law judge for a hearing which, according to the language of the order, left open the question of the Fund’s liability. If the Commission did not intend to leave open the question of the Fund’s liability, it was wrong; the Fund has not had the opportunity to appear and defend. If the Commission did not intend to foreclose arguments concerning the threshold issue of liability, it was right and, on remand, the Fund can adduce whatever evidence it deems necessary to litigate that issue before the administrative law judge.
The issue of whether the appellee is permanently and totally disabled must of necessity remain open. The appellee urges that this Court affirm the Commission’s decision that he is permanently and totally disabled, and we understand his desire that we do so. We cannot, for the Second Injury Fund, a necessary party to this litigation, has not been afforded the opportunity to participate in the litigation of that issue. To affirm the Commission’s finding of permanent and total disability would be to hold the Second Injury Fund liable in whatever percentage found to be appropriate by the Commission without due process.
We affirm the Commission’s decision to reinstate the Second Injury Fund as a party, but we reverse and remand to the Commission so that the matter may be remanded to the administrative law judge for a hearing on the issues of liability, apportionment, and the claimant’s degree of disability.
Affirmed in part, reversed and remanded in part.
Corbin and Mayfield, JJ., concur.
Glaze, J., dissents. | [
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James R. Cooper, Judge.
The appellee’s husband died on December 31,1981, leaving a will which bequeathed all of his real and personal property to his children by a previous marriage, two of whom are the appellants in the case at bar. Two days after the funeral, the decedent’s children and their spouses gathered at the appellee’s residence for the purpose of reading the deceased’s will and disposing of the assets of the estate. All the family assumed that title to the couples’ residence was owned individually by the deceased. The decedent’s son, who was the acting administrator of the estate, accompanied by one or two in-laws, went to an attorney’s office to draft the documents necessary to transfer title to the residence to the names of the decedent’s children. The attorney discovered that the property had been purchased by the decedent and the appellee as husband and wife, as tenants by the entirety. Thus, unbeknownst to the appellee, she was the sole owner of the residence upon her husband’s death. Therefore, it was necessary for the appellee to quitclaim her interest in the property before title could be vested in the children.
The appellee was brought immediately to the attorney’s office, where she signed the quitclaim deed to the property with the understanding that the house was hers as long as she lived. The appellee continued to live in the house until she moved into another house where she had been working as a housekeeper and maid. Apparently because of a need for additional income, the appellee attempted to rent her former residence to an individual. The appellants objected to this and asserted their rights as the fee owners of the residence. Consequently, the appellee filed this action to cancel her quitclaim deed, alleging that the appellants induced her to execute the quitclaim deed.
After a trial on the merits, the chancellor found, inter alia, that the quitclaim deed was obtained from the appellee without consideration and without donative intent. The chancellor then set aside the quitclaim deed and vested title to the residence in the appellee. From that decision comes this appeal.
The appellants argue that the chancellor erred in cancelling the deed merely because it was not supported by consideration. This contention would have merit if there were no fraud, duress, or undue influence because, under such conditions, consideration is not necessary to sustain the validity of a deed under Arkansas law. Goodwin v. Loftin, 10 Ark. App. 205, 662 S.W.2d 215 (1984); see also Ferguson v. Haynes, 224 Ark. 342, 273 S.W.2d 23 (1954). In the case at bar, the chancellor found that none “of the children intended to deliberately do Mrs. Lesly [the appellee] wrong.” Assuming the chancellor meant that there was an absence of fraud, undue influence, or duress, the deed need not have been supported by consideration in order to be valid.
However, the chancellor did not specifically find that the appellee was free from fraud, duress, or undue influence when she executed the quitclaim deed. Immediately after finding that the appellee “did not voluntarily and freely execute this deed,” the chancellor set the deed aside, apparently relying on his determination that “nothing at all was made clear to her as to why she needed to go down to Mr. Everett’s [the attorney who prepared the quitclaim deed] office.” In other words, the chancellor found that the appellee was unintentionally deceived by the appellants’ failure to fully clarify why the appellee’s signature was necessary to transfer the property to the appellants. For this reason, we think the chancellor’s holding is tantamount to a finding of constructive fraud.
We note that the appellants did attempt to educate the appellee as to her rights to the land. But considering the appellee’s mental and physical condition at the time, as well as the other circumstances surrounding the title transfer, it is entirely under standable that the appellants’ efforts proved unsuccessful. The appellee was over seventy years old at the time, and she suffered from cataracts as well as other infirmities. There was also evidence that she was in a somewhat addled state of mind, apparently grief-stricken over the recent death of her husband. Moreover, she was surrounded by her husband’s children, and all parties appeared anxious to give effect to the last will and testament of the husband, even though the devise to the children was legally invalid.
The appellants were guilty of no moral wrong, but an act done or omitted may be construed as fraud by the court because of its detrimental effect, thereby justifying the setting aside of the deed or contract, irrespective of moral guilt. Stewart v. Clark, 195 Ark. 943, 115 S.W.2d 887 (1938). Intentional deceit is not an essential element of constructive fraud. Id. But, where an unintentional deception does in fact occur, as in the case before us, yielding a manifestly unjust result, the court of equity may step in and remedy the constructive fraud.
Although we review chancery cases de novo, we will not set aside the chancellor’s findings of fact unless they are clearly erroneous or against the preponderance of the evidence. Rose v. Dunn, 284 Ark. 42, 679 S.W.2d 180 (1984); Ark. R. Civ. P. Rule 52(a). We agree with the chancellor that the appellee’s free will was compromised, perhaps unintentionally, by the act or omissions of the appellants, which requires the setting aside of the deed.
Affirmed.
Cloninger and Glaze, JJ., agree. | [
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George K. Cracraft, Chief Judge.
This is the second appeal of this workers’ compensation case. In an unpublished opinion dated October 26, 1982 we remanded the case to the Arkansas Workers’ Compensation Commission for clarification of evidentiary matters and for further review of the record to determine what effect, if any, the evidence as clarified had on the legal issues presented by the parties. In complying with the mandate the Commission found that the appellant had sustained permanent partial disability to the body as a whole. It further found that some portion of the total disability was apportionable to a preexisting disability resulting from arthritis. The Commission found that the degree of additional disability suffered by the claimant as a result of his compensable injury on May 30,1980, “blending both physical impairment and wage loss factors together” amounted to 25% to the body as a whole. Appellant brings this second appeal contending that the Commission erred in not finding him to be totally disabled under the “Odd Lot Rule” and in the alternative that there was no basis for apportionment. We find merit only in his second argument.
Appellant sustained a compensable injury to his back on May 30,1980 while moving a piece of heavy machinery. He was treated by his physician and returned to work on August 10,1980. On September 18, 1980 he left his employment with appellee stating that he had accepted employment at higher pay in a mill in Mississippi. The appellee heard nothing further from appellant until his attorney contacted the company in January 1982.
The employer testified that appellant was a good worker and performed his duties satisfactorily and without complaint for twelve years. There was testimony that had appellant complained about his work or asked, appellee would have assigned him lighter duties. It was stated that appellant gave two reasons for quitting his employment — the mill in Mississippi would pay him almost twice the wages he was then receiving and the machinery in appellee’s mill was getting on his nerves to such an extent that he felt a change was necessary. Appellant testified that before the injury he had experienced no difficulty with his back and was able to perform heavy work. After the injury he began having problems with his nerves and reached a point where he could not sleep at night. He stated that he tried to return to work after the injury but could not because of the pain. His daughter corroborated that testimony.
The appellant was fifty-three years of age and had a second grade education. He had worked most of his life as an unskilled laborer in the lumber industry and in appellee’s shirt factory. He stated that because of his injury he could no longer hunt and fish, garden or properly do his household chores and spent most of his time lying on a couch. He stated that at the time of his job related injury at appellee’s mill he had been “moonlighting” and holding down more than one job.
Dr. Douglas Stevens, a clinical psychologist, opined that appellant could not even perform light duties. Dr. Stevens stated that he was not a candidate for any work without rehabilitation to build his work tolerance and overcome emotional overlay.
Appellant’s treating physician released him to return to work. Appellant was treated by Dr. Ledbetter and Richard M. Logue, both orthopedic surgeons. Both testified that his healing period had ended. Dr. Ledbetter rated the appellant’s permanent partial disability as 15% to the body as a whole which he determined to be a combined rating of the job related injury and preexisting arthritis but was unable to separate the two. Dr. Logue determined his permanent partial disability to the extent of 20 to 30% overall. He attributed from 10% to 15% of his disability to the job related injury since he was working before the injury without complaint, and 10% to 15% to his preexisting arthritis.
The appellant contends that there is no substantial evidence to support a finding that appellant was not totally and permanently disabled. Our courts have long recognized that the wage loss factor, i.e., the extent “to which a compensable injury has affected claimant’s ability to earn a livelihood” rather than the functional or anatomical loss, is generally controlling in workers’ compensation determinations which are made on the basis of medical evidence, age, education, experience and other matters reasonably expected to affect the claimant’s earning power. Rooney & Travelers Ins. Co. v. Charles, 262 Ark. 695, 560 S.W.2d 797 (1978); Glass v. Edens, 233 Ark. 786, 346 S.W.2d 685 (1961).
Although the testimony of Dr. Stevens and the appellant might warrant a finding of total disability the extent of our inquiry on appeal is to determine if the finding of the Commission is supported by substantial evidence and we will affirm if reasonable minds could reach the conclusion the Commission reached. Bankston v. Prime West Corporation, 271 Ark. 727, 610 S.W.2d 586 (Ark. App. 1981).
It is clear from the opinion of the Commission that it considered the wage loss factor set forth in Glass v. Edens, supra. Although the Commission’s knowledge and experience is not evidence, once it has before it firm medical and lay evidence of physical impairment and functional limitations it has the advantage of its own superior knowledge of industrial demands, limitations and requirements and can apply its knowledge and experience in weighing the medical evidence of functional limitations together with other evidence of the manner in which the functional disability will affect the ability of the injured employee to obtain a job and thereby arrive at a reasonably accurate conclusion as to the extent of permanent partial disability as related to the body as a whole. Rooney & Travelers Ins. Co. v. Charles, supra; Bearden Lumber Co. v. Bond, 7 Ark. App. 65, 644 S.W.2d 321 (1983). From our review of the record viewed in the light of these principles, we cannot say that reasonable minds could not reach the Commission’s conclusion.
The appellant next contends the Commission erred in apportioning the total disability between the preexisting disease and the disability attributable to the job related injury. All parties concede that the Commission was correct in concluding that the provisions of Ark. Stat. Ann. § 81-1313(f)(2) (Repl. 1976), which was in effect at the time of the injury, governs the rules of apportionment.
In a series of cases we have held that the question of whether apportionment is proper does not depend upon whether the preexisting disability was work related or otherwise a compensable disability under the act. The rule has been established, however, that the prior impairment, although not actually a compensable disability, must have been of a physical quality sufficient to produce independently some degree of disability before the accident and continued to do so after it. Harrison Furniture Co. v. Chrobak, 2 Ark. App. 364, 620 S.W.2d 955 (1981); Chicago Mill & Lbr. Co. v. Greer, 270 Ark. 672, 606 S.W.2d 72 (1980); McDaniel v. Hilyard Drilling Co., 233 Ark. 142, 343 S.W.2d 416 (1961).
It was made clear that disability or impairment within the contemplation of the Workers’ Compensation Act means loss of earning capacity. Harrison Furniture Co. v. Chrobak, supra, and Osage Oil Co. v. Rogers, 15 Ark. App. 319, 692 S.W.2d 786 (1985).
Appellee contends that there is substantial evidence to support the Commission’s finding that this was a proper case for apportionment. We do not agree.
Appellee relies on testimony that appellant had injured his back in 1960 and that Dr. Ledbetter made a notation in his report of December 8,1980 that the earlier injury “was very resistant to treatment.” Appellant was asked if the symptoms suffered after the most recent injury were the same as those suffered in the earlier injury. He stated that they were but “didn’t just keep hanging with me.” This testimony is corroborative of the finding of a preexisting condition but does support a finding of the required diminished earning capacity.
The record discloses that the appellant had been engaged in hard manual labor all of his life and had performed such labor at appellee’s mill for twelve years preceding the job related injury. He had returned to work six weeks after the 1960 injury. There was no evidence that he had had any difficulty with his back since the 1960 injury or that the resulting arthritis had since affected his ability to earn. According to the appellee’s personnel manager appellant was a good worker and he was aware of no complaints. The appellant testified that he had suffered no difficulty from the arthritis prior to the accident and in fact was then holding down two jobs involving hard manual labor. He had terminated his employment at the appellee’s mill, not because of physical impairment, but to engage in heavier work at higher wages.
Although our standard of review of workers’ compensation cases is that they shall be affirmed if there is any substantial evidence to support the finding, we have also held that whether evidence is substantial in nature is a question of law. Cummings v. United Motor Exchange, 236 Ark. 735, 368 S.W.2d 82 (1963). In this case we find no substantial evidence to support a finding that the preexisting arthritis was independently producing any degree of disability resulting in diminished earning capacity prior to the job related accident.
The Commission made no finding on the total percentage of disability to the body as a whole resulting from combined anatomical rating and wage loss factors. It merely declared that only 25% of his present disability is attributable to the second injury. The finding of the Commission that appellant was not totally and permanently disabled is affirmed. The case is remanded with directions that the Commission determine appellant’s total percentage of disability to the body as a whole and enter its award accordingly.
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Melvin Mayfield, Judge.
This is an appeal from a decision of the Board of Review holding that the appellant was discharged for misconduct and therefore not entitled to receive unemployment compensation. The statute involved, Ark. Stat. Ann. § 81-1106(b)(2) (Repl. 1976), is Section 5(b)(2) of the Arkansas Employment Security Act and provides that a claimant shall be disqualified for benefits if he is discharged “for misconduct in connection with the work on account of dishonesty. . . .”
The decision of the Board issued on September 12, 1984, contained the following summary of the evidence before it:
The claimant was discharged on March 20, 1984 for alleged theft of the employer’s property and dishonesty. The employer-representative, Ronnie Kooer, testified that the claimant asked him to wrap a roll of carpet on March 20,1984 without first presenting the required tickets. The employer-representative stated that he refused this request. According to Kooer’s testimony, the claimant then had three explanations for the lack of written authorization. First, the claimant stated that the carpet was a gift from Mr. Tillman [the employer’s vice-president]. Secondly, the claimant indicated that he purchased the carpet from another business. Finally, the claimant denied these accounts and stated that he moved the carpet to its present location to discover who was stealing from the employer. The claimant testified that this roll of carpet was a gift from Mr. Tillman. Mr. Tillman denied this.
The employer-representative, John Shear, testified that other goods missing from the employer’s place of business have been traced to the claimant’s possession, i.e. one six foot roll of sundial vinyl, 4 cartons of tile and a roll of beige carpet. The claimant testified that he purchased these items over two and one-half years ago. The claimant stated twenty-five dollars was withheld from his paycheck every two weeks to pay for the goods. The employer-representative, Reva Sims, testified that there are no business records substantiating the claimant’s statements. Furthermore, John Shear testified the cartons of tile have serial numbers on them indicating their date of manufacture as September 19, 1983. These same cartons were received by the employer on October 14, 1983 and the employer’s business records indicate that they should still be in inventory.
On appeal, appellant’s counsel first argues that there is no factual basis in the record to support the Board’s statement that “the claimant stated that the carpet was a gift from Mr. Tillman.” Counsel has overlooked this testimony of Ronnie Kooer on page 54 of the transcript: “Another story that he told me was that Mr. Tillman had given him the roll and no one else was suppose to know. . . .” Although the appellant testified that he purchased the carpet from his employer, the Board’s summary of Ronnie Kooer’s testimony is an accurate summary of the testimony given by that witness.
Appellant’s second argument is that the Board improperly relied upon the evidence set out in its summary about other items missing from the employer’s inventory and traced to the appellant’s possession. It is the appellant’s contention that since Mr. Tillman admitted that the finding of these other items had nothing to do with his decision to terminate appellant’s employment, the Board’s reliance upon this evidence injected a new issue into the case that the claimant had no opportunity to rebut. Appellant says this is contrary to our decision in Linscott v. Director of Labor, 9 Ark. App. 103, 653 S.W.2d 150 (1983).
In Linscott the appellant’s claim for unemployment benefits had been denied by the agency on the basis that he had been discharged for misconduct in connection with his work and was therefore disqualified for benefits under Section 5(b)(1) of the Employment Security Act. On appeal to the Appeal Tribunal this disqualification was affirmed. However, on appeal to the Board of Review the Board found that he had voluntarily quit his job without good cause connected with the work and the appellant was held disqualified under Section 5(a) of the Act. We held that the injection of the voluntary quit issue for the first time in the Board’s decision “effectively denied appellant proper notice of the disputed issue” and we reversed and remanded for a new hearing.
However, the situation here is not like the situation in Linscott. The issue here is whether the appellant was discharged for “misconduct in connection with the work on account of dishonesty” under Section 5(b)(2) of the Act. This was the issue involved in the agency decision and the same issue has been involved throughout the whole appeal process. At the very first hearing before the Appeal Tribunal there was evidence concerning these other items missing from the employer’s inventory and traced to appellant’s possession. In keeping with our decision in Jones v. Director of Labor, 8 Ark. App. 234, 650 S.W.2d 601 (1983), the Board directed that additional evidence be taken by a referee of the Appeal Tribunal and again there was evidence introduced concerning these missing items traced to appellant’s possession. Appellant’s counsel was present at this hearing and cross-examined the employer’s witnesses about this matter, and the appellant himself testified about it. Furthermore, prior to the second hearing, appellant’s counsel had been furnished a copy of the transcript of the first hearing. Thus, it is clear that the evidence in question did not inject a new issue into the case that appellant had no opportunity to rebut.
On appeal to this court it is our duty to affirm the decision of the Board if its decision is supported by substantial evidence. Harris v. Daniels, 263 Ark. 897, 567 S.W.2d 954 (1978). We think there is substantial evidence to support the Board’s decision in this case.
Affirmed.
Cracraft, C.J., and Glaze, J., agree. | [
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George K. Cracraft, Chief Judge.
The sole question presented by this appeal is the proper method for determination under Ark. Stat. Ann. § 81-1312 (Repl. 1976) of the average weekly wage of an employee who holds two concurrent jobs with the same employer and suffers a compensable injury while performing one of them.
The facts are not in dispute. In 1974 Mary Lou Vanderburg was hired by the Marianna School District as a school bus driver. Her duties required her services in the early morning and mid-afternoon hours. In 1975 she was hired by the school district’s food service department to work those hours between her bus schedules in the school cafeteria. The two jobs did not overlap. She signed separate contracts for each employment and was paid by separate checks drawn on different accounts maintained by the employer. The employer’s workers’ compensation insurance covered both employments and premiums were computed on the appellee’s combined wage in both employments. On April 5,1984 the appellee sustained a compensable injury while driving a bus for the school district.
The employer accepted the injury as a compensable one but contended that appellee’s weekly benefits should be calculated only on her average weekly wage under the contract for bus driving duties. The employee contended that she was entitled to have her average weekly compensation determined on her earnings under both contracts. The Commission held that the wages paid for the two jobs should be combined for the purpose of determining the appellee’s weekly compensation rate and this appeal followed. We find no error in the Commission’s conclusion and affirm the award.
Ark. Stat. Ann. § 81-1310 (Supp. 1985) provides that the compensation payable to an injured employee for disability shall not exceed 66-%% of the employee’s “average weekly wage.” Ark. Stat. Ann. § 81-1302(h) (Repl. 1976) defines wages as the money rate at which the service rendered is recompensed under the contract of hire in force at the time of the accident. Ark. Stat. Ann. § 81-1312 provides that compensation shall be computed on the average weekly wage earned by the employee under the contract of hire in force at the time of the accident.
This court has addressed the application of these sections to concurrent employments on two prior occasions. Curtis v. Ermert Funeral Home & Ins. Co., 4 Ark. App. 274, 630 S.W.2d 57 (1982); Hart’s Exxon Service Station v. Prater, 268 Ark. 961, 597 S.W.2d 130 (Ark. App. 1980). We do not agree with the appellant that these cases declare that the provisions of § 81 -1312 do not permit the combining of wages from concurrent employments in any case. Both cases are distinguishable from the case at bar because both involve the proper method of determining the average weekly wage of an employee who held concurrent jobs with different employers and suffered an injury which arose out of his employment with one of them.
In both cases it was argued that we should adopt the majority rule that earnings from concurrent employments with different employers may be combined for this purpose if the employments are “related” or “similar,” citing 2 Larson, Workmen’s Compensation Law, § 60.30. In Hart’s Exxon that argument was rejected because the Arkansas act contained no provision for combining wages in such circumstances. The court pointed out that to hold otherwise would impose upon the workers’ compensation carrier an obligation it had not assumed and for which it had received no premium. In Curtis we were again asked to adopt the majority rule as stated in Larson and expressly overrule Hart’s Exxon. This we declined to do.
In Curtis we pointed out that the wording of the statutory provision fixing the wage base of an injured employee varied from state to state and the enactments of those states adopting the majority rule differed from our own by either expressly or impliedly authorizing the combining of wages for all employments. Our statute, however, provides that the benefits shall be based on the employee’s average weekly wage and defines “wage” as the money rate at which the service rendered is recompensed under the contract of hire in force at the time of the accident. We therefore concluded in Curtis that the clear wording of our statute made no provision for combining wages from concurrent employments with different employers in determining average weekly wages. Our statute, unlike those of many sister states, provides that average weekly wages means those wages currently earned by the injured worker under an employment contract with the employer in whose employment the injury is suffered.
The issue of combining wages earned in concurrent employment with the same employer was not before us in either Curtis or Hart’s Exxon. Those cases hold no more than that our statute makes no provision for combining wages earned in concurrent employment with different employers in the determination of the average weekly wage of an injured worker.
We find a sound basis for a distinction between the combining of wages earned in concurrent employments with different employers and those earned in concurrent ones with the same employer. The combining of wages from different employers would impose on the employer a liability of which he might not be aware and had not assumed and upon the carrier one for which it was not compensated by premiums. Here the injured worker worked full-time for the same employer and insurance premium computations were based on the wages paid her in both employments.
In 1C Larson, Workmen’s Compensation Law, § 47.10, Professor Larson points out that workers’ compensation enactments required a new concept of employer-employee which the common law of master and servant was ill-equipped to supply. These enactments contemplated a mutual arrangement between an employer and employee in which each gained rights and obligations which had not previously existed and gave up others that had. Injured employees gave up all rights to bring civil actions against employers in exchange for the right to be compensated for industrial injuries free of common law defenses. The primary purpose of these enactments was to provide for the injured employee a stipulated portion of his weekly wages lost as a result of injury arising out of that relationship.
We find that the legislative requirement that both the lost wages and the injury for which compensation is due arise out of that relationship is a reasonable one. We cannot conclude, however, that the legislature intended in every case to deprive an injured worker of a substantial portion of his lost wage benefits simply because that relationship has been established in separate agreements under which the employee works in different departments and is compensated on different wage scales by the same employer. We conclude that under the circumstances presented by this record the action of the Commission was correct.
Affirmed.
Cooper and Corbin, JJ., agree. | [
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Tom Glaze, Judge.
Appellant appeals his conviction for possession of a firearm by a convicted felon, for which he was sentenced to a three-year term in the Arkansas Department of Correction. He contends that the trial court erred in denying his motion to suppress the evidence, claiming that the warrantless search of his briefcase was both unreasonable and beyond the scope of the inventory procedure.
On the afternoon of July 4, 1984, a park ranger saw appellant in his vehicle parked on the side of a road in the park’s campground sewage disposal area. Appellant appeared to be passed out, and his vehicle’s engine was running. The ranger called the sheriffs office, and a deputy sheriff arrived to investigate. The officer awoke appellant and ran a check on his vehicle and driver’s licenses. He then gave appellant a field sobriety test, which he failed. Appellant then was arrested for being in actual control of a vehicle while intoxicated.
The deputy sheriff locked the car and asked the park ranger to stay with it while the deputy transported appellant to the sheriffs office. Pursuant to sheriff department policy, the officer returned to inventory the car before impounding it. He testified that he had to remove the car because it was in an area where campers disposed of the contents of their septic tanks.
The officer found an unlocked, unlatched, closed briefcase in the middle of the back seat. He flipped open the briefcase and found a Model 13 Smith and Wesson .357 pistol, two fully loaded speed loaders, and a bag of marijuana. In its order overruling appellant’s motion to suppress, the trial court, citing Colyer v. State, 9 Ark. App. 1, 652 S.W.2d 645 (1983), found that the search of the unlocked briefcase, in plain view of anyone entering the car, was no more than an inventorying of the vehicle, in keeping with the sheriff office’s policy.
Citing Robbins v. California, 453 U.S. 420 (1981) and Arkansas v. Sanders, 442 U.S. 753 (1979), appellant contends on appeal that the warrantless search of his briefcase was unreasonable because of the expectation of privacy one has in containers such as briefcases. However, in both Robbins and Sanders, investigatory, not inventory, searches were conducted, and the government was attempting to justify the searches of the containers under the vehicle exception to the warrant requirement. As the court stated in United States v. Rabenberg, 766 F.2d 355 (8th Cir. 1985), inventory searches do not rest upon findings of probable cause and, in light of their non-investigatory nature, do not implicate the warrant requirement.
In South Dakota v. Opperman, 428 U.S. 364 (1976), the Court noted inventory procedures developed in response to three distinct needs on the part of police departments: 1) the protection of the owner’s property while it remains in police custody, 2) the protection of the police against claims or disputes over lost or stolen property, and 3) the protection of the police from potential danger. When conducted pursuant to standard procedure, and where aimed at securing or protecting the owner’s property, the Court has consistently sustained inventory searches as exceptions to the search warrant requirement. Illinois v. Lafayette, 462 U.S. 640 (1983); Opperman, supra.
The Lafayette case involved an inventory search of a purse-type shoulder bag carried by the defendant when he was arrested for disturbing the peace. While the facts in Lafayette did not involve an automobile, the Court thoroughly discussed the principles associated with inventory searches as set forth in Opperman, and further considered whether the Fourth Amendment requires that such a search must be achieved in what the Court termed “a less intrusive manner.” We note that Lafayette’s search was not done immediately at the time and place of his arrest, but instead was- performed later at the police station. According to standard inventory procedure, an officer examined the contents of the defendant’s bag and found ten amphetamine pills. The officer conceded the bag could have been placed and sealed in a container or locker for protection purposes. The state court held the inventory invalid, distinguishing Opperman on the basis that there is a greater privacy interest in a purse-type shoulder bag than in an automobile, and that the state’s legitimate interests could have been met in a less intrusive manner, by sealing the bag within a plastic bag or box and placing it in a locker. The Supreme Court disagreed, and upheld the inventory as reasonable, stating the reasonableness of any particular governmental activity does not necessarily or invariably turn on the existence of alternative “less intrusive” means. The Court further concluded:
Even if less intrusive means existed of protecting some particular types of property, it would be unreasonable to expect police officers in the everyday course of business to make fine and subtle distinctions in deciding which containers or items may be searched and which must be sealed as a unit.
Lafayette, 462 U.S. at 648, 103 S.Ct. at 2611, 77 L.Ed. 2d at 72.
The Eighth Circuit Court of Appeals has had a series of inventory cases, the most recent of which was Rabenberg, supra. There, the appellants contended the officer’s opening of a suitcase, and two gift-wrapped packages contained therein, exceeded the legitimate scope of an inventory search, and that the police department’s policy requiring inventory searches merely was used by police as a pretext for an improper investigatory search. The court upheld the inventory, finding that it was necessary for the officer to open the package so that he might protect all persons concerned from claims of theft and from dangerous instrumental-ities. The court said:
[E]ven though an inventorying policy might not always justify opening of a sealed package, see, United States v. Bloomfield, 594 F.2d 1200 (8th Cir. 1979), we cannot say that this search was unreasonable, given the peculiar circumstances.
Rabenberg, 766 F.2d at 357.
The Bloomfield case, cited in Rabenberg, involved an inventory search which the Eighth Circuit held invalid. Bloomfield was found unconscious in his car which was blocking traffic. He was taken to the hospital, and his automobile was inventoried by the police and later towed from the public highway. In inventorying, the officers opened a knapsack which was zipper-closed and tied with string. Inside, they found 10,360 dosage units of lysergic acid diethylamide (LSD), 23 grams of phencyclidine (PCP) and $1,300.00 cash. The court, limiting its holding to the facts before it, concluded the knapsack should have been inventoried as a unit because it was sealed tightly and there was no danger of anything slipping out. In so holding, the court recognized that there was no reason to believe the knapsack posed any danger to the police, and that inventorying the knapsack as a unit both protected Bloomfield’s property, and, at the same time, protected the police against claims or disputes over lost or stolen property. The court added, in important part, that if a container which is to be inventoried is not closed securely so that the articles within could possibly fall out, it may be wiser to itemize the articles. See United States v. Neumann, 585 F.2d 355 (8th Cir. 1978) (The court upheld an inventory search of a box with a lid which, when removed by the officer, revealed demerol pills); see also United States v. Laing, 708 F.2d 1568 (11th Cir.), cert. denied, 464 U.S. 896 (1983) (The court sustained inventory search of defendant’s automobile’s trunk and unsecured Yahtzee gamebox which contained methaqualone tablets); Hamby v. Commonwealth, 222 Va. 257, 279 S.E.2d 163 (1981) (The court upheld as reasonable the opening of a zippered-closed, but unlocked, briefcase found in a car during an inventory search).
Our Court’s decision in Colyer, supra, appears to be consis tent with the foregoing authority. In Colyer, the validity of the initial intrusion or inventory itself was in issue, but the Court also held its scope was reasonable as well. Among other things, the officer inspected a paper bag found in the defendant’s vehicle, and discovered it contained plastic bags of marijuana. This Court rejected Colyer’s contention that the officer merely should have stapled the paper bag for safekeeping and, instead, concluded that the officer — in keeping with his duty to safeguard the bag’s contents — was not unreasonable in taking action to inventory its contents.
Under the rationale contained in each of the decisions considered and discussed above, we believe the inventory search — under the facts before us — is constitutionally authorized. Here, the appellant’s briefcase was both unlocked and unlatched. We hold the employing of a less intrusive means of inventorying the unlatched briefcase was unnecessary, and that the opening of it was designed not only to safeguard appellant’s property but also to protect the police officer against disputes or claims over lost or stolen property. Therefore, we affirm.
Affirmed.
Cooper, J., concurs.
The officer found other items in the car and its trunk, but neither the relevance of those items nor the legality of their seizure is argued in this appeal.
In his argument, appellant concedes the inventory was initially warranted and valid.
Appellants’ suitcase was mistakenly picked up at the airport by a young boy who took it home where he and his uncle opened it, and found a loaded pistol and two gift-wrapped packages. The uncle called the police, and an officer later inspected one of the packages, which was partially opened, discovering what he suspected to be narcotics. The officer replaced the package in the suitcase and took the case to the police station where its contents were thoroughly inventoried. The packages were then rewrapped, replaced in the suitcase, and the suitcase was returned to the airport. Appellants subsequently picked it up and were arrested. | [
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Melvin Mayfield, Judge.
This case involves an award of alimony. The appellee was granted a decree of separate maintenance in September of 1981. At that time there were two minor children. The parties had entered into a written property settlement agreement shortly before the separate maintenance decree was granted. The agreement contained provisions whereby the appellant husband was to pay the appellee wife the sum of $200.00 per month child support and $400.00 per month alimony. When each child reached age 18 the child support was to reduce by $100.00 and the alimony was to increase by $100.00. The agreement provided that it was a “full and final and complete settlement” of all property rights “to be settled for separate maintenance purposes,” that it could be incorporated in any decree of legal separation, and “in the event it is converted to a divorce action, the same terms would be incorporated in a divorce decree.”
Three years later the appellee filed a suit for divorce on the grounds of personal indignities and three years separation. Appellant filed an answer and counterclaim alleging that since the entry of the separate maintenance decree he had been injured in an automobile accident and was now totally and permanently disabled and unable to pay the alimony as provided in the settlement agreement. He also alleged that the appellee was able bodied and held a responsible and lucrative job.
At trial, appellant testified in support of the physical and financial condition alleged in his answer and counterclaim, but the trial judge stated he was holding that the property settlement was an enforceable agreement. The court granted appellee a divorce and incorporated the property settlement agreement and made it a part of the decree. In this appeal, the appellant argues that the trial judge erred in thinking he was bound by the terms of the agreement. On the other hand, the appellee argues that the trial court was correct in thinking that the agreement was an independent contract that could not be modified.
The briefs are largely devoted to a discussion of when a property settlement agreement is an independent contract that cannot be modified by the court. However, we do not think that this is the real issue in the case. We agree with the appellant’s contention that we are not concerned with the modification of an agreement in this case, but with the authority of the court to make an initial award of alimony when a divorce decree is entered. Therefore, we deal with that issue only.
In Pryor v. Pryor, 88 Ark. 302, 114 S.W. 700 (1908), the court said: “The court is not, in the first instance, bound by the agreement of the parties concerning the amount of alimony to be allowed to the wife.” The court explained the matter in this way: “This is so because the court is moved to action by principles of justice and equity, and is not bound to follow the agreement of the parties against what appears to be the justice of the case.”
In Bachus v. Bachus, 216 Ark. 802, 227 S.W.2d 439 (1950), the court said:
The parties to a divorce action may agree upon the alimony or maintenance to be paid. Although the court is not bound by the litigants’ contract, nevertheless if the court approves the settlement and awards support money upon that basis there is then no power to modify the decree at a later date.
The language quoted above from the Pryor case was also quoted with approval in Holmes v. Holmes, 186 Ark. 251, 53 S.W.2d 226 (1932), and the language quoted above from Backus was quoted with approval in Armstrong v. Armstrong, 248 Ark. 835, 454 S.W.2d 660 (1970). See also McCue v. McCue, 210 Ark. 826, 197 S.W.2d 938 (1946).
It is true, of course, that the court had awarded alimony in the separate maintenance decree, but we do not think that the refusal to follow that allowance in the divorce decree would constitute a modification of the separate maintenance decree. In Smith v. Smith, 236 Ark. 141, 365 S.W.2d 247 (1963), the court had awarded the wife alimony in a separate maintenance decree entered by the Chancery Court of Nevada County. Later, the Chancery Court of Miller County granted the husband a divorce and that decree made no provision for the payment of alimony. After the entry of the divorce decree, the wife filed a petition in the Nevada Chancery Court seeking to punish the husband for his failure to make the maintenance payments in accordance with that court’s decree. The court refused to hold him in contempt saying there was no further liability to make those payments because of the divorce decree entered by the Miller Chancery Court. The Supreme Court rejected the wife’s plea of res judicata and affirmed the Nevada Chancery Court’s decision. See also Myers v. Myers, 226 Ark. 632, 294 S.W.2d 67 (1956).
The early case of Pryor v. Pryor, supra, pointed out that a statute in effect at that time provided that “when a decree (for divorce) shall be entered, the court shall make such order touching the alimony of the wife and care of the children, if there be any, as from the circumstances of the parties and the nature of the case may be reasonable.” That same provision is in our current statute (although it provides that alimony may also be awarded to the husband). See Ark. Stat. Ann. § 34-1211(A) (Supp. 1985). Boyles v. Boyles, 268 Ark. 120, 594 S.W.2d 17 (1980), sets out some of the considerations involved in deciding the alimony issue under this statute. But see Russell v. Russell, 275 Ark. 193, 628 S.W.2d 315 (1982) (holding that marital misconduct is not, as a general principle, a permissible consideration in the determination of the alimony award).
In the instant case, although the divorce decree states that the court finds the property settlement agreement to be fair and equitable, it is apparent that the chancellor thought he was bound by the agreement as to alimony and gave no consideration to the question of whether, from the evidence, alimony should be allowed and, if so, in what amount. While the usual practice in appeals from chancery is to end the controversy by rendering judgment in this court on our de novo review of the record, under all the circumstances in this case and considering the time that has elapsed since the trial before the chancellor, we think it best to exercise our discretionary authority to remand. See Pickens v. Stroud, 9 Ark. App. 96, 653 S.W.2d 146 (1983).
Reversed and remanded for further proceedings consistent with this opinion.
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Tom Glaze, Judge.
This is an appeal from the circuit court’s dismissal of appellant’s complaint, which alleged that appellee had breached appellant’s teaching contract for the 1982-3 school year by deducting $722 from appellant’s final paycheck.
On June 30, 1982, appellant and appellee entered into a teacher’s contract, whereby appellant agreed to teach physical education and health and to coach basketball and baseball. The contract covered a time period of “9 Months of school; 200 Days of school; 10 Calendar months; From August 2,1982, to May 31, 1983.” In return, appellee agreed to pay appellant annual compensation of $16,055.00 in eleven installments. Appellant reported to work from August 2,1982 through May 17,1983. The last day of school was May 17,1983. On June 14,1983, appellant received his final check from appellee, from which appellee had deducted $722.00 for the nine working days, between May 17th and May 31st, appellant did not report to work. Appellant sent appellee a letter dated June 22,1983, demanding payment of this amount, and after receiving no response, filed this suit.
The trial court found that it was undisputed that the contract under which appellant was teaching was for the period of August 2, 1982 through May 31, 1983. The judge acknowledged that there were other time provisions in the contract, i.e., nine months of school, two hundred days, and ten calendar months, but found that, while appellant’s interpretation of the contract that he did not have to report to work after May 17th, the last day of school, was understandable, he failed to show by a preponderance of the evidence that he was excused from reporting to school until May 31st.
Appellant contends the trial court wrongly construed the contract to require appellant’s presence until May 31, 1983. Of course, we cannot overturn the findings of a circuit judge sitting as a jury unless we find them to be clearly erroneous or clearly against the preponderance of the evidence. Izard County Board of Educators v. Violet Hill School District, 10 Ark. App. 286, 663 S.W.2d 207 (1984). Here, we hold the trial court’s finding that the appellant was required to report to work through May 31st is clearly erroneous. Therefore, we reverse.
Traditional contract principles apply to teacher employment contracts. Gillespie v. Board of Education of North Little Rock, 528 F.Supp. 433 (D.C. Ark. 1981), aff'd 692 F.2d 529 (8th Cir. 1982). It is a well-settled rule that any ambiguity in a contract must be construed against the party who drafted it. Williams v. Cotten, 9 Ark. App. 304, 658 S.W.2d 421 (1983); Barrett v. Land Mart of America, Inc., 3 Ark. App. 70, 621 S.W.2d 889 (1981). The time provisions in appellant’s contract are ambiguous, setting forth four different time provisions, 9 months of school, 200 days of school, 10 calendar months, and from August 2,1982 through May 31,1983, none of which cover an identical period of time. The appellee prepared appellant’s contract, which was a standard form used with all the district’s teachers. The trial court was therefore required to construe the contract against appellee and in favor of Maddox. As noted earlier, the judge indicated in his finding he understood how appellant could interpret the contract as he did, but then construed the ambiguous time provisions in appellee’s favor. In doing so, the trial court arbitrarily chose the provision “From August 2, 1982 through May 31, 1983” as controlling.
Now, we turn to the evidence that we believe underscores the trial court’s error. Here, appellee prepared and issued to all its teachers a standard form contract, which reflected a time period ending May 31st. In fact, the only date that varied in these contracts was the beginning date — teachers who had 180-day contracts were to begin on August 10th, while appellant and other teachers who had 200-day contracts were required to begin on August 2nd. Danny Patrick, the school superintendent, testified that the May 31st date gave the school extra time within a teacher’s contract to make up missed, but required, days in the school term without holding the teachers beyond their contract deadline. He admitted that the teachers under a 180-day contract were free to leave after the last day of school, which, in this instance, was May 17,1983. Deborah Snell, a former teacher for appellee, and appellant both testified that Patrick told the teachers at a meeting prior to the end of school that, once they turned in their paperwork after the last day of school, they were free to leave. While Patrick attempted to distinguish at trial between a nine-month teacher and a ten-month teacher, appellant’s contract, like those of all the other teachers (with exception of Glen McCutchen, the football coach and junior high principal), was for nine months of school and ten calendar months. Although Patrick testified the appellant was expected to be at school for the full 200 days, he admitted that the only other teachers who had identical time provisions in their contracts, the vocational teachers, were not required to report for work after school was out. No other teacher was docked any pay, nor is there any provision in the contract allowing for such a deduction.
Patrick testified that, as superintendent, he had expected appellant to be at school after May 17th. He testified that appellant knew he had to get his permission to be absent after May 17th and that appellant’s duties were to handle the paperwork for his sports. However, Patrick admitted that he had not told appellant that year that he was supposed to be at school after the last day. Appellant testified, and Patrick did not deny it, that he had turned in all his paperwork by the last day of school. Furthermore, Patrick admitted that at no time after the last day of school did he contact appellant to find out why he was not showing up. Patrick’s conduct, as agent for appellee, indicated that appellee intended the operative-time term in teachers’ contracts to be the months of school, not the days of school or the time frame from August 2nd (or 10th) until May 31st. In construing a contract, the court will look to the conduct of the parties to determine what they intended. Welch v. Cooper, 11 Ark. App. 263, 670 S.W.2d 454 (1984). Even when the contract is ambiguous, the parties will be bound to the construction which they have placed on it. Organized Security Life v. Munyon, 247 Ark. 449, 446 S.W.2d 233 (1969).
Appellee’s action, in docking pay from appellant’s paycheck only, and not from those of other teachers with identical time provisions in their contract, was arbitrary. Construing the contract in appellant’s favor, as must be done, we conclude that appellant established by a clear preponderance of the evidence that appellee wrongfully withheld the sum of $722.00 from appellant’s last paycheck. Therefore, we reverse the trial court and remand with directions to enter a judgment accordingly.
Reversed and remanded.
Cooper and Corbin, JJ., agree. | [
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Donald L. Corbin, Judge.
On August 21, 1974, claimant and appellee, Billy Joe Dunlap, suffered a compensable injury to his back while employed by appellee Coca-Cola Bottling Company. Appellee Royal Insurance was the Workers’ Compensation insurance carrier and paid compensation to claimant until April 23, 1982, based upon a 20% disability rating by claimant’s physician Dr. John Lohstoeter, an orthopedic surgeon. In 1980, appellant, Aetna Insurance Company, became the Workers’ Compensation carrier for the employer, Coca-Cola Bottling Company. On May 7, 1982, claimant reported an incident that involved a pain to his back when he stepped on a support to put an eight-pound bag of bottle crowns into a filler at the Coca-Cola Bottling Company. Claimant was hospitalized in May 1982 by his physician, Dr. Lohstoeter, for testing purposes to ascertain the current status of his back.
The Administrative Law Judge ruled that the episode of May 7,1982, was a natural and probable result of the first injury and not precipitated by an independent intervening cause, i.e., a recurrence of the 1974 injury, and placed the sole responsibility for compensation upon Royal. The Workers’ Compensation Commission reversed the ALJ’s decision, declining to categorize the 1982 episode as either a recurrence or an aggravation of a preexisting condition. The Commission applied the doctrine of apportionment ordering Royal and Aetna to each pay one-half of claimant’s medical and related expenses together with maximum attorneys fees because of their total controversion of the claim. We reverse and remand.
Arkansas cases have followed the rule that all of the logical consequences flowing from an initial injury are the responsibility of the carrier at the time of the initial incident. Where the second complication is a natural and probable result of the first injury it is deemed a recurrence and the original carrier remains liable. Only where it is found that a second episode has resulted from an independent intervening cause is liability imposed upon the second carrier. Burks, Inc. v. Blanchard, 259 Ark. 76, 531 S.W.2d 465 (1976), Calion Lumber Co. v. Goff, 14 Ark. App. 18, 684 S.W.2d 272 (1985), Bearden Lumber Co. v. Bond, 7 Ark. App. 65, 644 S.W.2d 321 (1983). These cases clearly indicate that application of the doctrine of apportionment requires a finding that there was a second episode resulting from an independent intervening cause. In the case at bar the Commission failed to make clear whether that prerequisite was satisfied. The Commission stated in its opinion:
All of the Arkansas cases involving the recurrence-aggravation question have been examined in the light of the evidence in this case and it is frankly impossible to place this claimant’s second back injury occurring on May 7, 1982, into one or the other of these categories with any logical certainty. Equally persuasive arguments can be and have been made by the parties in this case to characterize claimant’s May 7, 1982, injury a recurrence of his earlier injury, resulting in exclusive liability for Royal. To classify claimant’s 1982 injury would involve a high degree of ■ arbitrariness and artificiality. Therefore, we decline to call it either.
Instead, we choose to apply the doctrine of apportionment among successive employers, or insurance carriers, which rule has been sanctioned several times by the Arkansas Supreme Court. See, e.g., Employer’s Casualty Co. v. United States Fidelity & Guarantee Co., 214 Ark. 40, 214 S.W.2d 774 (1948); Tri State Insurance Company v. Employers Mutual Insurance Company, 254 Ark. 944, 497 S.W.2d 39 (1973); Browning’s Restaurant v. Kuykendall, 263 Ark. 374, 565 S.W.2d 33 (1978). This rule of apportionment is also endorsed and discussed in Larson, Workmen’s Compensation Law § 95.31 (1984). This doctrine, essentially equitable in nature, may be applied “. . . whenever disability results from the cumulative effect of successive and repeated ‘accidental injuries’ suffered in the same employment, some of which occurred during the periods of coverage of each of two or more carriers.” Tri State Insurance Company v. Employers Mutual Liability Insurance Company, supra. In the instant claim we find that claimant’s disability has resulted from the cumulative effect of successive injuries suffered in the same employment and when different insurance carriers provided coverage.
The Commission then apportioned the compensation liability equally between Aetna and Royal.
Larson’s treatise on Workmen’s Compensation §95.31, cited by the Commission, specifically states apportionment is proper “where a preexisting disease or anomaly is accelerated or aggravated by an industrial accident.” In the case where an acceleration is found “the employer or insurer is liable for only the degree of acceleration or aggravation attributable to the accident.” Larson, supra.
The ruling of the Commission makes it unclear whether an independent intervening injury was found. The Commission declined to determine whether there was a recurrence or an aggravation while at the same time applied the doctrine of apportionment on the basis of a finding that there were “successive injuries suffered in the same employment and when different insurance carriers provided coverage.” Were this ruling affirmed the case law in this area would be confused. The Court of Appeals has already addressed this problem in Bearden, supra. In Bearden this Court held:
We conclude that in all of our cases in which a second period of medical complications follows an acknowledged compensable injury we have applied the test set forth in Williams — that where the second complication is found to be a natural and probable result of the first injury, the employer remains liable. Only where it is found that the second episode has resulted from an independent intervening cause is that liability affected. While there may be some variance in the words used to describe the principle, there has been no departure from the basis test, i.e., whether there is a causal connection between the two episodes, (cites omitted)
In Bearden the Court went on to discuss the terminology used in the cases. The Court concluded that, although the causal relation test was the only test, different terms were used in the cases to apply the test. However, in all cases the test is the same: Is the second episode a natural and probable result of the first injury or was it precipitated by an independent intervening cause? We think that the Commission’s ruling confuses this issue and we therefore reverse and remand on this point for further findings of fact consistent with this holding.
The appellant argues that there is no substantial evidence to support the Full Commission’s reversal of the Administrative Law Judge’s finding that claimant did suffer a recurrence of his original injury. We need not address this issue because the case is being remanded to the Commission with orders to clarify its determination on this point.
We agree with the Commission’s finding that the entire claim was controverted and that claimant’s attorney is entitled to the maximum attorney’s fee. However, the determination of which carrier or carriers will be responsible for the maximum attorney’s fee will have to be made by the Commission upon remand. See, Aluminum Co. of America v. Henning, 260 Ark. 699, 543 S.W.2d 480 (1976).
Reversed and remanded.
Cooper, J., agrees.
Glaze, J., concurs. | [
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Tom Glaze, Judge.
Roy Lee Tiggs appeals his conviction for theft of property. For reversal, he contends that (1) he was prejudiced by the jury’s consideration of his failure to testify, (2) his confession should have been excluded as involuntary, and (3) the trial eourt should not have admitted evidence that he directed police to stolen merchandise without holding an evidentiary hearing as to voluntariness. We affirm.
During the weekend of November 11-13,1983, Proctor Tire Service in Hazen was burglarized and fifty-six tires were stolen. Tire tracks left at the scene were made by a type of tire used only on U-Haul trucks. Police learned that appellant had rented a U-Haul truck on November 11, which he later reported stolen in Little Rock on November 14. On November 22,1983, appellant was taken into custody at about 1:00 a.m. and was administered a polygraph examination at 8:50 a.m. That same day, between 4:30 and 5:00 p.m., appellant gave a confession to the police officers but refused to sign any written statement. At a subsequent time, not revealed in the record, appellant took police officers to a location in Little Rock where twenty-four of the tires stolen from Proctor were recovered.
At a Denno hearing, the trial judge ruled that appellant had understood his rights and intelligently and voluntarily waived them prior to having given his oral statement. Trial was held on January 16, 1985.
Appellant’s first point for reversal is that he was prejudiced by the jury’s consideration of his failure to testify. After the jury retired, it returned, asking, among other things, why appellant was not called to testify. Appellant’s counsel, the prosecutor, and the trial judge met in chambers to discuss responses to the questions. Although appellant’s counsel moved for a mistrial, he, the prosecutor and the judge agreed that the judge should re-read AMI Criminal,^111, which provides that a defendant has an absolute constitutional right not to testify and that failure to testify should not be considered by the jury in arriving at its verdict.
Appellant does not contend that either the court or the State improperly raised the question of his failure to testify. Ordinarily, a proper admonition by the trial judge to the jury cures prejudice, King v. State, 9 Ark. App. 295, 658 S.W.2d 434 (1983), and here, we believe the court’s re-reading of AMI Criminal, 111 rectified any error or prejudice, if any existed. We find no abuse of discretion by the trial judge in refusing to grant appellant’s motion for mistrial.
Appellant’s second point for reversal is that his confession should have been excluded as involuntary, and that the State failed to call a material witness by not producing the polygraph examiner. Appellant contends the confession was involuntary because of (1) the duration of interrogation, (2) the use of the polygraph over a long period of time, and (3) appellant’s refusal to sign the confession. On appeal, we do not set aside the trial judge’s finding of voluntariness unless it is clearly against the preponderance of the evidence. Jackson v. State, 284 Ark. 478, 683 S.W.2d 606 (1985). Fáctors considered in determining the question of voluntariness include the age or youth of the accused, lack of education, low intelligence, lack of advice as to constitutional rights, length of detention, repeated and prolonged questioning, and the use of physical punishment. Id. Of those factors enumerated in Jackson, appellant argues only his length of detention and prolonged interrogation. The police arrested appellant and took him to the police station at about 1:00 a.m., on November 22,1983. That same morning, at 8:50 a.m., appellant was given a polygraph test that lasted approximately six hours. Between 4:30 and 5:00 p.m., a state police investigator had appellant sign a waiver of rights form, before questioning appellant, and then obtained his confession. We find little to distinguish the facts in this cause from those in Cessor v. State, 282 Ark. 330, 668 S.W.2d 525 (1984) wherein the court determined Cessor understood and waived his rights. Cessor was given a polygraph test and subsequently gave his confession. Cessor had been incarcerated less than twenty-four hours, and from the circumstances under which he confessed, the court held the trial judge correctly found Cessor’s statement admissible.
Here, appellant had been detained a total of approximately sixteen hours. During that period, he was tested for about six hours, and then gave his confession during a thirty-minute period of questioning. Under these facts, we find that the trial judge’s ruling, that the confession was voluntary and admissible, was correct.
Concerning appellant’s argument that the State’s failure to call the polygraph examiner as a material witness was error, we must note that the record fails to show the appellant objected to this at either the Denno hearing or the trial. Because appellant failed to make a timely objection, we cannot consider the issue for the first time on appeal. Smith v. State, 10 Ark. App. 390, 664 S.W.2d 505 (1984). Even if appellant had objected, we are inclined to agree with the State’s argument that the examiner was not a material witness because he was not present when appellant gave his statement.
Finally, appellant contends that the trial court should not have admitted evidence that he directed police to stolen merchandise. Appellant contends that this evidence violated his constitutional privilege against self-incrimination, and that an evidentiary hearing regarding voluntarineiss should have been conducted by the trial court. We disagree. "the fifth amendment protections do not extend to demonstrative, physical tests, but are intended to immunize the defendant from providing the State with evidence of a testimonial or communicative nature. Weatherford v. State, 286 Ark. 376, 692 S.W.2d 605 (1985). Here, the challenged evidence was not testimonial; instead, the police officer testified only that appellant showed the officers where the stolen tires were located.
Because we find the trial court did not err, we affirm.
Affirmed.
Cloninger and Mayfield, JJ., agree. | [
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George K. Cracraft, Chief Judge.
Union National Bank of Little Rock appeals from an order of the chancery court holding that the lien of its second mortgage is junior to advances made by the first mortgagee even though the advances were optional, made after the second mortgage was recorded and were for purposes wholly unrelated to the primary obligations secured by the first mortgage. Upon our review of the record we find no error.
The facts necessary to a determination of the issue presented disclose that on May 4, 1981 Ray and Doris Jean Khoury executed a series of notes to First State Bank & Trust Company of Conway for the purpose of purchasing a home. The notes were secured by a first mortgage on the residence. The mortgage contained two clauses dealing with the debts to be secured. The first clause was typewritten and was as follows:
This sale and conveyance is on the condition that, whereas, Mortgagors are justly indebted unto Mortgagee in the sum of Forty-Eight Thousand Thirty-five and 55/100 Dollars ($48,035.55) evidenced by a promissory note signed by the parties of the first part dated May 4, 1981 payable to the order of Mortgagee, bearing interest as stipulated therein, and due in installments over a period ending May 4,1985, and in the further sum on $15,000.00 as evidenced by a note of even date herewith for said sum, bearing interest as herein set forth and due on September 4,1981, and agrees to advance the additional sum of $11,964.45 as requested by Mortgagors to be repaid not later than September 4, 1981.
The priority of the notes described in this clause is not in issue. Immediately following that typewritten provision a clause in the printed mortgage form provided:
In addition to securing the payment of the above described indebtedness, this instrument shall also secure the payment of any and all renewals of said obligation, or any portion thereof, together with any and all additional amounts that Mortgagors now owe or may hereafter owe unto the Mortgagee, whether as principal or surety, at any time between this date and the satisfaction of record of the lien of this instrument, including any and all future advances and/or loans that may be made by Mortgagee to Mortgagors, or either of them regardless of whether Mortgagee is now obligated to make such future advances or hereafter becomes obligated to make such future advances, further regardless of whether or not this instrument is specifically referred to in the evidence of indebtedness executed by Mortgagors with regard to such future advances, and further regardless of whether or not such future advances may be for purposes related or unrelated to the purpose for which the original indebtedness secured hereby is loaned. This mortgage shall not release or affect any other mortgage executed by Mortgagors, or either of them, unto the Mortgagee. [Emphasis supplied]
The priority of additional advances by First State Bank to the Khourys under this provision presents the issue on this appeal.
On November 3, 1981 the Khourys executed a second mortgage in favor of Union National Bank. While both mortgages were still in force First State Bank made an additional loan in the amount of $11,000 for the purchase of an Oldsmobile automobile. A security interest on the automobile was taken as collateral for the note. In March 1982 the First State Bank advanced the Khourys an additional $5,000 for the purchase of a Pontiac automobile for which it also took a security interest. On August 18,1982 the First State Bank made an additional loan of $7,500 which was secured by a security interest on automotive repair equipment used in Khourys’ business. None of the three notes referred to the May 4, 1981 mortgage as security.
The Khourys defaulted on the notes secured by both the first and second mortgages and upon the automobile and equipment notes. In the foreclosure order the chancery court declared that the lien of First State Bank’s first mortgage extended to all of the notes executed by Khoury to First State Bank including the automobile and equipment notes.
The appellant contends that this ruling of the chancellor was in error for several reasons. It first argues that as the original note to First State Bank was made for the purchase of a home the future advance clause could not extend the lien to secure notes executed for the unrelated purposes of purchasing automobiles and business equipment. They rely on the well-settled rule that a mortgage given to secure a specific debt will not be extended to cover debts subsequently incurred unless they are of the same class or so related to the primary debt secured that the assent of the mortgagor will be inferred. The purpose for such a requirement is to prevent the extension of a lien by the use of general terms to debts which the debtor did not contemplate. Bank of Searcy v. Kroh, 195 Ark. 785, 114 S.W.2d 26 (1938); Security Bank v. First National Bank, 263 Ark. 525, 565 S.W.2d 623 (1978); Hendrickson v. Farmers Bank & Trust Co., 189 Ark. 423, 73 S.W.2d 725 (1934).
This argument would be more persuasive in the absence of the quoted provision of the mortgage in which the Khourys expressly agreed that the lien of the deed of trust extends to all future advances made to them by First State Bank whether or not the note made reference to the first mortgage or the debt was related or unrelated to the purpose of the original indebtedness secured. The rule of law set out in Hendrickson is designed to protect the borrower against the unwarranted extension of the lien for debts which the parties might not have intended. We are cited no cases which even suggest that the borrower might not waive the protection of that rule by express agreement as was done here.
Appellant argues that in construing future advances clauses the intention of the parties governs and is to be determined by considering all the circumstances surrounding the execution of the mortgage. Where the intention of the parties is expressed in unambiguous terms the court does not construe the clause but enforces it as written.
Nor do we find any inconsistencies between the two quoted clauses. The first one recites those specific debts and notes which are initially secured by the mortgage. The second one starts with the words “in addition to securing the payment of the above described indebtedness.” The second clause is not inconsistent with the first but merely extends and broadens it. Nor do we find merit in the argument that the second quoted provision was in “fine print.” The print was no different from any of the other printed portion of the mortgage in issue. We conclude that this argument was answered in Benton State Bank v. Reed, 240 Ark. 704, 401 S.W.2d 738 (1966). There the court saw no significance in the fact that the instrument contained some typewritten provisions and stated that to hold otherwise would declare that the printed portion of a mortgage carried no weight at all.
The record discloses that at the time the notes and mortgage in favor of Union National Bank were executed that bank was aware that the First State Bank held a first mortgage on the property; made no inquiry of that bank as to the balance due on the notes, and failed to give notice to First State Bank of the execution of the second mortgage. Under these circumstances we conclude that the case is controlled by Alston v. Bitley, 252 Ark. 79, 477 S.W.2d 446 (1972) where the court declared that a prior recorded mortgage securing optional future advances is superior to an intervening encumbrance if the first mortgagee does not have knowledge or actual notice, as distinguished from mere record notice, of the intervening lien.
We conclude that the express language of the mortgage extended the lien of First State Bank’s first mortgage to all of the advances whether related or unrelated to the primary purpose. We further conclude that as First State Bank had no actual notice of the taking of the second mortgage the chancellor was correct in concluding that the first mortgage lien attached to those future advances and was superior to the intervening encumbrances.
Nor do we find merit in the contention that the chancellor erred in excluding the testimony of Khoury regarding his intent at the time the unrelated notes were executed. As the intention of the parties was expressly stated in a written instrument in clear and unambiguous terms, it was the function of the court to enforce it as written. The chancellor was correct in holding that the express agreement could not be varied by parol evidence.
Affirmed.
Mayfield and Cloninger, JJ., agree. | [
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Tom Glaze, Judge.
This appeal ensues from appellants’ unsuccessful action to cancel a deed. Appellants contend the trial court erred (1) in finding that they failed to present sufficient evidence that their signatures on the deed were forged, (2) in correcting the property description in the disputed deed, and (3) in not sequestering a witness from the courtroom.
The appellants owned a tract in Sherwood upon which they built a house. They later sold their son and daughter-in-law a portion of the tract and, on 19 August 1980, sold the remainder of the tract, including their house, to Ray Wolf Company, Inc. (Wolf Company). Wolf Company paid the appellants $125,000 in cash and gave them a $50,000 or $55,000 promissory note for the balance of the purchase price. The note was secured by a second mortgage that described only that part of the tract upon which the house was located. The Citizens National Bank at Jacksonville held a first mortgage on the same portion to secure the $125,000 it loaned Wolf Company for the purchase of the entire tract. The remaining, unencumbered, portion of the tract sold Wolf Company is the focus of this litigation.
This controversy evolved from two deeds prepared in Judge Milas Hale’s office. Both deeds were dated 20 August 1981. One deed transferred title to the unencumbered property from Wolf Company to appellants; the second deed, containing the alleged forgeries, conveyed the same property from the appellants to Ferncliff, Inc. (Ferncliff). At this point, we note that Ray Wolf was president of Wolf Company and secretary/treasurer of Ferncliff. While appellants and Ray Wolf agree that the first deed was prepared and executed, they are in total disagreement concerning the second. It is undisputed that appellant John Dyson took the first deed to his attorney, who corrected the property description. That correction deed was executed by Ray Wolf on behalf of the Wolf Company on 28 August 1981 and recorded on 17 September 1981. The second or alleged forged deed, dated 20 August 1981, was not recorded until 27 January 1982. John Dyson testified that he first discovered the disputed deed when he checked his property taxes in March 1983. He and his wife, Sybil, promptly filed this suit to set the deed aside.
The parties agree that appellants had the burden of proving that their signatures on the Ferncliff deed were forged. They disagree, however, on the quantum of proof required. Appellants contend the forgery need only be established by a preponderance of the evidence, while appellee asserts the proof must be clear and convincing. On this point, we hold appellants are correct.
In determining the required degree of proof, the cases distinguish between when it is contended there has been fraud or duress in obtaining a deed, and when forgery is alleged. As the court clearly stated in Davidson v. Bell, 247 Ark. 705, 710, 447 S.W.2d 338, 340 (1969):
[w]here it is contended that a deed was obtained by duress or fraud . . . the law requires that the proof be clear, cogent and convincing before the deed can be set aside. Here, it is simply asserted. . .that the deed was a forgery, and the quantum of proof necessary to sustain such an allegation is a preponderance of the evidence. Coulter v. Clemons, 237 Ark. 227, 372 S.W.2d 396 (1963).
See also McCarty v. Blaylock, 248 Ark. 645, 648, 453 S.W.2d 35, 37 (1970) (deed found not to be a forgery where “proof heavily preponderates” in favor of party claiming not a forgery); Kennedy v. Couillard, 237 Ark. 353, 372 S.W.2d 825 (1963) (party did not sustain burden of proving, by a preponderance of the evidence, that her signature on a deed was a forgery); Temple, Adm’r v. Smith, et al., 222 Ark. 834, 262 S.W.2d 898 (1953) (burden on party to prove forgery of deed by a preponderance of the evidence); Fuller v. Norwood, 267 Ark. 900, 592 S.W.2d 452 (Ark. App. 1979) (parties alleging forgery of signatures on contract must sustain burden of proof by a preponderance of the evidence).
Although the appellants’ burden here was to show the forgeries by a preponderance of the evidence rather than by clear and convincing proof, we believe the record supports the chancellor’s decision, upholding the disputed document. Appellants insist they never signed the Ferncliff deed nor gave any consideration for such a deed. While appellants argue the failure of consideration alone would invalidate any conveyance from them to Ferncliff, our courts have held no consideration is required since a deed constitutes a present grant rather than a mere promise to be performed in the future. Parkey v. Baker, 254 Ark. 283, 492 S.W.2d 891 (1973); Goodwin v. Lofton, 10 Ark. App. 205, 662 S.W.2d 215 (1984). Appellants also presented testimony by Judge Hale who stated he could not recall talking with appellants about the deed or seeing them sign it. Judge Hale further testified, however, that Mr. Wolf and Mr. Dyson were doing a lot of trading or at least talking about trading back and forth, and he did not remember what they finally came up with. He said that the person who notarized the deed was not an employee in his office. In fact, the record reflects that the disputed document bore the signature of Ray Wolfs sister-in-law as the notary.
The appellee countered appellants’ testimony with evidence from which it could be inferred by the chancellor that the appellants did sign the Ferncliff deed. In this respect, Ray Wolf testified he saw appellant John Dyson sign the deed in Judge Hale’s office and that, a day or so later, Mr. Dyson told him his wife had also signed it. Wolf testified that the appellants were long-time friends, and because he was having marital problems with his wife and financial difficulties with the Citizens National Bank, he deeded the unencumbered portion of his property to appellants, who in turn deeded this same property to Ferncliff, a firm in which he owned stock and was an officer. This transaction, he said, kept Citizens Bank from “clouding the property” and from “attaching it.” He indicated these two conveyances would serve to protect his and the appellants’ interests. Apparently, his intent was to show the appellants as record title owners when, in fact, Ferncliff — a company in which Wolf had an ownership interest — held title by an unrecorded deed. Although appellants argue appellee should not be allowed to benefit from such a scheme, the established law is that the parties may be bound to such an agreement. See Murphy v. Murphy, 165 Ark. 246, 262 S.W. 677 (1924) (wherein the court held a deed executed to defraud creditors is good between the parties); see also McCune v. Brown, 8 Ark. App. 51, 648 S.W.2d 811 (1983).
Other evidence was presented from which the chancellor could find the appellants executed the disputed deed. For example, the appellants admitted at trial that the signatures were very similar to their own. The chancellor had other signatures by the appellants to compare with those on the Ferncliff deed. From our de novo review, we must agree that remarkable similarities exist when comparing them, and we can readily see how the chancellor could have concluded the signatures on the deed were genuine. Cf. McCarty v. Blaylock, supra, at 248 (party alleging forgery admitted, and the court agreed, that signature bore close resemblance to alleged forged one). We believe such a conclusion is reasonable, especially, as here, where neither the notary public nor a handwriting expert were called as witnesses to challenge the genuineness of the appellant’s signatures. Although appellants denied signing the deeds, it is settled law that the testimony of an interested party may not be taken as uncontradicted because his testimony is contradicted as a matter of law. Tenwick v. Byrd, 9 Ark. App. 340, 659 S.W.2d 950 (1983).
In addition, the trial court also could have inferred that appellants’ actions subsequent to August 1981 were inconsistent with their now-avowed ownership of the disputed tract. They paid no taxes on the land and did not list it as an asset on two financial statements appellant John Dyson said he had prepared. Appellants spent no money on the property; nor had they checked their tax liability concerning the property for one and one half years. Based upon our de novo review of the record, we find the chancellor’s decision that appellants failed to meet their burden of proof is supported by the evidence. At the least, we are unable to say that he was clearly erroneous. Integon Life Ins. Corp. v. Vandegrift, 11 Ark. App. 270, 669 S.W.2d 492 (1984).
The second point for reversal is that the chancellor erred in correcting the legal description. Both deeds prepared in Judge Hale’s office contained the same legal description. However, the deed description conveying the property from Wolf Company to the appellants was later corrected by the appellant’s attorney. This legal description was accepted by both parties as the correct one. Thus, we cannot say the chancellor clearly erred in finding that the improper description on the disputed deed was the result of a mutual mistake between the parties. See Turner v. Pennington, 7 Ark. App. 205, 646 S.W.2d 28 (1983).
Finally, appellants allege the trial court erred in failing to exclude, upon their request, witness Ray Wolf. Uniform Rule of Evidence 615 provides that, at the request of a party, the court shall order the exclusion of witnesses so that they cannot hear the testimony of other witnesses. The sequestration or exclusion of witnesses is employed to expose inconsistencies in testimony and to prevent the possibility of one witness molding his or her testimony to that given by other witnesses at trial. Fite v. Friends of Mayflower, Inc., 13 Ark. App. 213, 682 S.W.2d 457 (1985). The Rule, however, provides certain exceptions. It does not authorize the removal of (1) a party who is a natural person or (2) an officer or employee of a party that is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of his cause.
In the instant case, Ray Wolf was the secretary-treasurer of appellee, Ferncliff. The court found, and we agree, that in spite of the fact that the stock of Ferncliff had been purchased in February 198 3 by First State Bank of Sherwood and Ray Wolf was no longer active in the operation of the corporation, he was still listed on record as secretary-treasurer of the corporation, and should not be excluded under Rule 615 of the Uniform Rules of Evidence. Besides, because Wolf was intricately involved in all the transactions between the parties in this action, the trial court could have easily permitted his in-court presence as essential to the presentation of the appellee’s case, especially since the First State Bank did not participate in this litigation.
Affirmed.
Cooper and Corbin, JJ., agree.
The trial court found that Ferncliff, Inc. was actually Ferncliff Properties, Inc. and reformed the deed to reflect this correction.
Eventually, when Wolf Company defaulted on its note, the Citizens Bank foreclosed its secured interest In the house owned by Wolf Company and the indebtedness was fully satisfied upon the sale of the house. | [
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Tom Glaze, Judge.
Appellant was tried by a jury and convicted in Greene County Circuit Court of violating a Paragould city zoning ordinance, prohibiting the placement of a mobile home in a R-l zone. He raises four points on appeal, but we find none of them require a reversal.
Appellant lived in a mobile home on the lot in question until he sold the lot and home in 1981. After the mobile home was sold and removed from the property, appellant traveled extensively in a second mobile home, living in Nevada part of the year and returning to Paragould for short periods of time. In either August or September of 1983, appellant returned to Paragould and rented an apartment. Although it was unclear when, appellant regained his lot because the purchaser failed to meet a condition of the sale. In August 1984, a planning commission hearing was held on appellant’s request that his lot be rezoned from R-1 to R-2 so that he could build some apartments. Appellant’s application was denied, and the next day, he moved a mobile home onto the lot. After being notified several times that he was violating a city ordinance, a warrant was issued for appellant’s arrest.
In this appeal, it is uncontested that appellant had a valid nonconforming use of his property when the zoning ordinance was adopted sometime during 1970. Rather, the issue is whether that nonconforming use ceased.
The Paragould zoning ordinance provides:
A nonconforming use of land which shall cease for a continuous period of more than thirty days shall be deemed permanently abandoned, and any use thereafter established shall be in conformity with these regulations.
It is undisputed that, from either August or September of 1983 until August 22,1984, appellant had no mobile home on his property and was living in a rented apartment. Nevertheless, appellant argues that he had no intent to abandon the nonconforming use of his property. In this respect, he claims the court erred in preventing him from testifying concerning his intent and in refusing his proffered instructions on this issue. Because he believed the evidence failed to show he abandoned the nonconforming use of his property, appellant also asserts the court erred in denying his motion for directed verdict. We believe the court ruled correctly in each instance.
The Paragould zoning ordinance provides that after a certain lapse of time — thirty days — the discontinuance of a nonconforming use will be deemed to constitute an abandonment. Where the ordinance in question contains a discontinuance time limitation, courts have held that such nonexercise of the nonconforming use is sufficient, of itself, to terminate the nonconforming use, regardless of intention to abandon. Canada’s Tavern, Inc. v. Town of Glen Echo, 260 Md. 206, 271 A.2d 664 (1970); State ex rel. Brill v. Mortenson, 6 Wis.2d 325, 94 N.W.2d 691 (1959), reh’g denied, 7 Wis.2d 325, 96 N.W.2d 603 (1959). See also 82 Am.Jur.2d Zoning and Planning § 220 (1976); 101A C.J.S. Zoning and Land Planning § 174 (1979). Furthermore, in order to prove a violation of an ordinance such as the one in this cause, it is not necessary to prove the element of intent. It is a general rule, and Arkansas case law supports the proposition, that criminal intent is not a necessary element of an offense that is merely malum prohibitum, where no provision as to intention is put in the ordinance. Kirkham v. City of North Little Rock, 227 Ark. 789, 301 S.W.2d 559 (1957). Accordingly, we find, in view of established law, the trial judge properly denied appellant’s motion for directed verdict and correctly excluded his testimony and proffered jury instructions pertaining to his intent to abandon the nonconforming use in issue.
We note appellant’s reliance on Blundell v. City of West Helena, 258 Ark. 123, 522 S.W.2d 661 (1975) and Hendrix v. Hendrix, 256 Ark. 289, 506 S.W.2d 848 (1974), but we find neither case controlling here. In Blundell, the central or decisive issue involved whether Blundell established a nonconforming use, not if he discontinued it — which is the principle issue here. The Hendrix case is clearly not in point since that case involved the question of whether the heirs to land had relinquished their interest in the land by failure to participate in earlier litigation.
Appellant’s final point for reversal is that the trial judge erred in allowing the appellee’s attorney to ask leading questions. Appellant complains about a series of questions, particularly those asked of the city inspector, Mr. Howard Anderson, regarding the sale of appellant’s mobile home in 1981, and the alleged zoning violation. Almost all of the questions asked required either a yes or no answer:
Q. At any point in the past, have you heard Mr. Anderson testify or otherwise state that he sold that property to Mrs. Thorne on or about that date?
A. I believe so.
Q. Mr. Anderson, was it reported to your office anything relevant to a violation of any kind involving Mr. Anderson on or about August the 22nd?
A. Yes, sir.
Q. And in furtherance of that report, did you go to that property?
A. That afternoon.
Q. Did you confront or see Mr. Anderson, on that occasion?
A. Yes, sir.
Q. Did you observe a mobile home, in that area?
A. Yes, sir.
Q. Was this a R-1 zoned area, that this mobile home was situated on?
A. Yes, sir.
Even though a question can be answered yes or no, it can hardly be classed as leading unless it suggests a particular answer. Parker v. State, 266 Ark. 13, 582 S.W.2d 34 (1979). But even if the questions here were leading, they were not prejudicial as there was no dispute as to the facts being elicited during this particular line of questioning. It is in the discretion of the trial court to permit a witness to be asked leading questions on direct examination, Hamblin v. State, 268 Ark. 497, 597 S.W.2d 589 (1980), and in this cause we find no abuse of that discretion.
Affirmed.
Cracraft, C.J., and Mayfield, J., agree.
We note the similarities in facts between this cause and those in Trice v. City of Pine Bluff, 279 Ark. 125, 649 S.W.2d 179 (1983), but the issues raised there were not argued in this cause below. | [
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Donald L. Corbin, Judge.
Appellee, Mary Louise Warden, was awarded benefits by the Board of Review which reversed a decision of the Appeal Tribunal on a finding that appellee had voluntarily left her last work with appellant Gordos Arkansas, Inc., due to illness, injury, or disability after making reasonable efforts to preserve her job rights. We reverse and remand.
The issue on appeal is whether there is substantial evidence to support the Board of Review’s decision that appellee quit her job with appellant because of medical problems and that she made reasonable efforts to preserve her job rights.
Ark. Stat. Ann. § 81-1106(a) (Supp. 1985), provides:
For all claims filed on or after July 1, 1973, if so found by the Director an individual shall be disqualified for. benefits:
Provided. . .if after making reasonable efforts to preserve his job rights, he left his last work because of his illness, injury, pregnancy or other disability.
For reversal of the Board’s finding that appellee quit her job because of medical problems, appellant relies heavily upon appellee’s written resignation which stated: “I’m moving to Wichita, Kansas, with my husband. There is no work here for him. I’m leaving April 28. This will be my last day at Gordos. Signed: Mary Warden, April 5, 1983.” Appellee contended she quit her job because she hurt her back and had to move to Kansas to have back surgery. Appellant contends that our determination of this question depends on which of appellee’s contradictory stories one believes; that is, did she quit to follow her husband to Kansas or did she quit to go to Kansas because she needed surgery.
The evidence reveals that appellee received a compensable injury while employed by appellant on January 3,1983, and was paid Workers’ Compensation benefits. She was released by her physician to return to work on March 4, 1983. She gave her written resignation on April 5,1983. Appellee did not show up for work on or after April 14, 1983, although she had stated in her resignation that April 28, 1983, would be her last day. On May 16, 1983, a physician in Kansas who had formerly treated appellee for a prior back condition examined her and on June 2, 1983, performed surgery on her back. Appellant paid Workers’ Compensation benefits in connection with this surgery as it was related to her January 3,1983, injury. There was a note entered in evidence from appellee’s Arkansas physician, Dr. W.G. Swindell, which stated: “Mary L. Warden was seen in my office on April 18, 1983, for persistent low back pain and probable herniated nucleus pulposus and nerve root irritation on the left. Hospitalization with complete bedrest, analgesics and intense physical therapy was recommended, but Mrs. Warden chose to go to Wichita instead, and be hospitalized there. Thank you. Signed: W.G. Swindell, M.D.”
From our review of the record, we believe there is substantial evidence to support the finding by the Board of Review that appellee left her employment with appellant because of her injury.
The next question to be decided is whether the Board’s finding that appellee made reasonable efforts to preserve her job rights is supported by substantial evidence. We hold that it is not. Appellee Director of Labor concedes that appellee Mary Louise Warden took no active steps to preserve her job rights as required by Ark. Stat. Ann. § 81-1106(a), but contends that it would have been a futile gesture on appellee’s part pursuant to our holding in Oxford v. Daniels, 2 Ark. App. 200, 618 S.W.2d 171 (1981).
We believe Oxford, supra, is distinguishable. There, Oxford had been discharged by his employer and drew unemployment benefits for 3Vi months before accepting a different position as grinder machine operator at the company’s request. Oxford was reluctant to accept this job because of his poor eyesight and the fact that he did not have a kneecap in one knee. Oxford quit after three days because of what he described as aching all over and an inability to see well enough to perform the job properly. The personnel officer for the employer recognized Oxford’s willingness to try a job that both he and Oxford suspected he could not do. In addition, the employer stated that it was the only job available within the company for Oxford. Under these facts, any attempt by Oxford to preserve his job rights would have been a futile gesture.
In the instant case there was no indication by appellant that there were no other jobs available which would be suitable to appellee. Appellee had in the past taken advantage of the company’s leave policy. One such leave was for medical reasons. In fact, Karen Lugeanbeal, personnel director for appellant, testified that the company had a record of not turning down anyone’s request for a leave of absence, especially if it was for a medical reason.
In Oxford, supra, the employer was aware that Oxford was unable to perform the assigned job and knew it did not have another job for him. In the instant case, appellee indicated that she chose to remain in Kansas and has not, to this day, requested her old job back nor asked if there was another job available with appellant compatible with her injury. We fail to find any excuse for appellee’s failure to make reasonable efforts to preserve her job rights with appellant. Nor does the evidence support the conclusion that any attempt on her part to obtain a leave of absence would have been a futile gesture.
We are not unmindful of the policy announced in Harmon v. Laney, 239 Ark. 603, 393 S.W.2d 273 (1965), wherein it was stated: “Strict constructions which result in defeat of the intended purposes of the Act will not be sanctioned by this court.” However, Ark. Stat. Ann. § 81-1106(a) clearly provides that an individual must make reasonable efforts to preserve his or her job rights in order to avoid disqualification for benefits. There is no evidence to support the Board’s finding that appellee made reasonable efforts to preserve her job rights. Accordingly, we reverse and remand for the Board of Review to issue an order denying benefits to appellee because of her total failure to make reasonable efforts to preserve her job rights.
Reversed and remanded.
Cooper and Glaze, JJ., agree. | [
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Tom Glaze, Judge.
On January 28, 1985, appellant was convicted, by the trial court sitting as a jury, of forgery in the second degree and sentenced to three years in the Department of Correction with one year suspended. On appeal, appellant contends that there was insufficient evidence on which to base the conviction, alleging that the State had failed to prove she acted with an intent to defraud. We affirm the conviction.
Forgery in the second degree is committed when a person forges a written instrument that is a check. Mayes v. State, 264 Ark. 283, 571 S.W.2d 420 (1978); Gonce v. State, 11 Ark. App. 278, 669 S.W.2d 490 (1984); Ark. Stat. Ann. § 41- 2302(3)(a) (Repl. 1977). A person forges a written instrument if, among other things, with purpose to defraud, he alters, possesses, or utters any written instrument that purports to be, or is calculated to become, or to represent if completed, the act of a person who did not authorize the act. Ark. Stat. Ann. § 41-2302(1) (Repl. 1977). “Utter,” as used in § 41-2302(i), includes the delivery or attempted delivery of a written instrument. Mayes, 264 Ark. at 290.
It was undisputed that, on July 10,1984, appellant deposited a General Motors Acceptance Corporation check payable to Albert Tate into an account for Mr. Tate at an office of First South Federal Savings and Loan (First South) located, in Little Rock. It was also undisputed that the check was purportedly endorsed by Albert Tate, that Mr. Tate did not authorize the signature or the act, and that the check had been altered upwards in amount, from five dollars to five thousand dollars. The only issue in conflict was appellant’s knowledge of the alteration and her intent to defraud.
Lou Ann Ford, a teller at a First South office in North Little Rock, testified that, on July 6,1984, a woman identifying herself as Betty Faubert came into that office to open an account in the name of Albert Tate or Betty Faubert. Admitting she had not made any previous identification regarding the identity of this woman, Ms. Ford made an in-court identification of appellant as the woman who had called herself Betty Faubert.
Cathy Gregory, a teller at the First South office in Little Rock, testified that, on July 10, 1984, appellant came into the bank to deposit the check in question, telling her that she did not have an account number but that the check was to be deposited to Albert Tate’s account. Ms. Gregory stated that, when she told appellant she could find no account number for Mr. Tate, appellant said the account might be under the name of Betty Faubert. She said appellant did not identify herself as Betty Faubert. After searching unsuccessfully under that name, Ms. Gregory testified she then told appellant she would need an account number to make the deposit. She said appellant told her that she would go and see if she could find it, that Mr. Tate was out of town. Ms. Gregory testified that appellant came back in about fifteen minutes with a deposit slip already typed out for
Albert Tate with the account number on it. Ms. Gregory testified she then deposited the check.
Appellant admitted that she had taken the check in question to First South and had given it to Ms. Gregory for deposit. However, appellant testified that Ms. Gregory’s version of what happened was not correct. According to appellant, she got the check and deposit slip from her boss, Roy Duckett, in an envelope. She testified that he drove her to the bank. Appellant stated she did not know that the check had been altered or that it was in the amount of five thousand dollars. She also testified that she did not give the names of either Albert Tate or Betty Faubert, nor did she know that the account was in the name of either Betty Faubert or Albert Tate. Appellant said when she gave Ms. Gregory the check, Ms. Gregory told her there was no account number. She said she went out to tell Mr. Duckett what the teller had said and he told her that the account number should be in the envelope. Appellant stated she then took the envelope back in and told Ms. Gregory, “he said it was in the envelope,” whereupon the teller took the envelope, deposited the check, and gave appellant a receipt. She stated that this did not take fifteen minutes, and she also testified that she had never been in the First South branch in North Little Rock.
The trial judge found that appellant was not the person who opened the account for Mr. Tate on July 6,1984, as he indicated he was not at all impressed by Ms. Ford’s in-court identification of something that had occurred six months earlier. However, the trial court found Ms. Gregory’s version of what happened on July 10, 1984, to be true. The judge stated that, although he believed Roy Duckett was the one principally responsible, appellant’s statement to Ms. Gregory that Mr. Tate was out of town, coupled with the extensive alteration of the check she presented, showed appellant’s complicity beyond a reasonable doubt.
In a criminal case, we are required to view evidence on appeal in the light most favorable to the appellee and affirm the j, trial court if there is substantial evidence to support the conviciStion." -Ellis v. State, 279 Ark. 430, 652 S.W.2d 35 (1979). Substantial evidence is that evidence which is of sufficient force and character that it will, with reasonable and material certainty and precision, compel a conclusion one way or another; it must force the mind to pass beyond a suspicion or conjecture. Jones v. State, 11 Ark. App. 129, 668 S.W.2d 30 (1984). Circumstantial evidence is sufficient evidence if it excludes every reasonable hypothesis consistent with innocence; however, whether it does so is basically a question for the finder of fact. Id.
The State contends that Ms. Ford’s testimony, when coupled with Ms. Gregory’s testimony and the obvious nature of the check’s alteration, is sufficient evidence to support appellant’s conviction. We must reject part of the State’s contention because the trial court specifically held that he did not find Ms. Ford’s identification of appellant as the woman who opened the account credible, and we are bound by his determination of credibility. See Ellis, 279 Ark. at 432; Jones, 11 Ark. App. at 136. Nonetheless, we conclude that the statements of Ms. Gregory (whose testimony the trial court found credible), showing that appellant had talked as if she knew Mr. Tate and had requested his account, and the obvious alteration of the check warrant an inference that appellant intended to defraud Mr. Tate of five dollars and General Motors Acceptance Corporation of $4,995.00.
The trial court obviously did not find appellant’s explanation of her possession of the altered check credible. As we said earlier, this was the prerogative of the trial court. The drawing of reasonable inferences from the testimony is for the trial judge as fact-finder, not this court. Core v. State, 265 Ark. 409, 578 S.W.2d 581 (1979). Our supreme court has held that:
Possession of a forged instrument by one who offers or seeks to utter it without any reasonable explanation of the manner in which he acquired it warrants an inference that the possessor committed the forgery or was a guilty accessory to its commission. State v. Phillips, 127 Mont. 381, 264 P.2d 1009 (1953).
Mayes, 264 Ark. at 291. The reasonableness and sufficiency of appellant’s explanation is a matter to be determined by the fact-finder. In so doing, the trial judge had the right to accept such portions of the testimony as he believed to be true and reject those he believed to be false. Core, 265 Ark. at 414.
There being sufficient evidence to support the conviction, we affirm.
Affirmed.
Cooper and Cloninger, JJ., agree. | [
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Lawson Cloninger, Judge.
In these appeals from their criminal convictions, appellants Davis and Lancaster raise four points for reversal, and appellant Blair raises five. We affirm the convictions of Davis and Lancaster and affirm the conviction of Blair on all points but one, which we reverse.
On January 2,1984, two Arkansas Game and Fish Commission officers on patrol in Perry County discovered appellants Davis and Lancaster walking in a cemetery and appellant Blair sitting in a pickup truck nearby. Dogs were running nearby, and one of the appellants admitted that the dogs belonged to them. The officers examined appellants’ hunting licenses and guns and found buckshot in Lancaster’s shotgun. At the time, the use of buckshot was prohibited as it was muzzle loading season. After finding the buckshot in one weapon, the officers looked inside the cab and saw another round of buckshot in the floorboard. Next to it, beneath the passenger’s seat, was a Tupperware cake box. One of the officers opened the box and found, in addition to more buckshot, a green leafy substance and scales. No citations were issued at that point, but the officers ordered appellants to drive to the Perry County Sheriffs office in Perryville in their own vehicle.
As the officers and appellants were leaving, more hunters appeared in another vehicle. The officers approached the other vehicle, leaving their own vehicle unguarded, and checked hunting licenses and guns. In the meantime, according to the officers, appellant Blair ran away and disposed of the cake box. Appellants assert that there was no cake box and that Blair simply went to look for his dogs with the officers’ permission. At trial one of the officers acknowledged that permission had been granted.
When it appeared that Blair would not return, the officers issued citations to Davis and Lancaster for failing to wear hunter orange, to Lancaster for attempting to take deer with a modern firearm in muzzle loading season, and to Davis for aiding and abetting. On February 7, 1984, the prosecuting attorney filed a felony information containing eight counts, charging appellants Davis and Lancaster with possession of a controlled substance with intent to deliver, tampering with evidence, breaking or entering, hindering apprehension, and failure to wear hunter orange, appellant Lancaster with unlawful hunting of wildlife in closed season with a modern firearm, and appellant Davis with aiding and abetting Lancaster in unlawful hunting in closed season with a modern firearm.
Motions to suppress any evidence regarding marijuana on the basis of an illegal, warrantless, non-consensual search were denied at a pre-trial hearing. At the conclusion of the trial, the jury found appellant Davis guilty of possession of a controlled substance, appellant Lancaster guilty of possession of a controlled substance and unlawful attempt to take deer with a modern firearm, and appellant Blair guilty of possession of a controlled substance, escape in the third degree, breaking or entering, and tampering with evidence. From those verdicts, appellants bring these appeals.
All three appellants argue, in their first point for reversal, that the trial court erred in denying their motions to suppress any evidence obtained from the warrantless and non-consensual search of the pickup truck. They contend that only the buckshot found in the one shotgun was illegal and that any buckshot that might be found in the vehicle itself was legal and hence could not constitute probable cause for a search.
The Arkansas Game and Fish Code provides, at § 01.00-B:
Wildlife officers shall be commissioned by the Commission and shall, concurrently with the sheriff's, constables and other peace officers throughout the State, have the right to apprehend persons detected violating any of the laws of the State enacted for the protection of game, fish, fur-bearing animals and other wildlife, and to take such offenders before any court having jurisdiction in the county where such offense is committed. Such persons shall also serve all processes issued by a court of competent jurisdiction relating to the enforcement of all laws pertaining to game, fish, fur-bearing animals and other wildlife of the State; to go upon any property outside of private dwellings; posted or otherwise, in the performance of their duties; to carry firearms while performing duties, and may with or without a warrant, according to law, conduct searches.
This section clearly authorizes wildlife officers to conduct war-rantless searches within prescribed legal bounds. Those limitations are set forth in the Arkansas Rules of Criminal Procedure.
Under A.R.Cr.P. Rule 12.1(d), an officer may make a search incidental to an arrest “to obtain evidence of the commission of the offense for which the accused has been arrested or to seize contraband, the fruits of crime, or other things criminally possessed or used in conjunction with the offense.” Additionally, A.R.Cr.P. Rule 12.4 provides that an arresting officer may search a vehicle “if the circumstances of the arrest justify a reasonable belief on the part of the arresting officer that the vehicle contains things which are connected with the offense for which the arrest is made.” Nothing in either rule is inconsistent with the principle enunciated by the United States Supreme Court in New York v. Belton, 450 U.S. 1028 (1981), that when a law enforcement officer “has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” See also Arras v. State, 3 Ark. App. 134, 623 S.W.2d 537 (1981).
While the buckshot in the floorboard of the truck may not have been “criminally possessed,” the officer who searched the passenger compartment was acting within the bounds prescribed by Rule 12.1(d). The buckshot could certainly be said to be “used in conjunction with the offense” of attempting to take deer with a modern weapon. The circumstance of finding a round of buckshot in one of the guns and spotting another in the floorboard surely justified “a reasonable belief on the part of the arresting officer” that the truck contained items “connected with the offense for which the arrest [was] made.”
Appellants Davis and Lancaster contend in their second point that there was insufficient evidence to convict them of possession of a controlled substance when no competent proof was offered concerning the actual existence of any marijuana on the scene. Their argument is based on the fact that no chemical analysis was conducted on the substance the officers found in the Tupperware container. We have held, however, in Armstrong v. State, 5 Ark. App. 96, 633 S.W.2d 51 (1982), that lay testimony and circumstantial evidence may be sufficient without the introduction of an expert chemical analysis to establish the identity of a questionable substance.
In the instant case, both officers testified concerning their training in the visual identification of marijuana and their experience in making arrests for possession. We have previously found such qualifications adequate for lay identification. In Boyd v. State, 13 Ark. App. 132, 680 S.W.2d 911 (1984), we ruled admissible the statement of a sheriff that the substance he had obtained from the appellant’s residence was marijuana when the sheriff gave testimony regarding his previous law enforcement experience, his training in the visual identification of marijuana, and the hundreds of times he had actually seen marijuana.
An argument somewhat related to the above is raised in appellant Blair’s second point and in appellants Davis and Lancaster’s third point. They urge that there was insufficient evidence to prove that any of them either actually or constructively possessed the marijuana said to have been concealed in the Tupperware cake box. We are of the opinion, however, that the evidence demonstrates constructive possession.
In Llewellyn v. State, 4 Ark. App. 326, 630 S.W.2d 555 (1982), we quoted a definition of constructive possession found in Cary v. State, 259 Ark. 510, 534 S.W.2d 230 (1976):
Constructive possession occurs when the accused maintains control or a right to control the contraband; possession may be imputed when the contraband is found in a place which is immediately and exclusively accessible to the accused and subject to his dominion and control, or to the joint dominion and control of the accused and another.
Joint occupancy of a place where contraband is found will not be sufficient in itself to establish possession or joint possession unless there are additional factors from which a jury may infer possession. Booth v. State, 10 Ark. App. 216, 662 S.W.2d 479 (1984). In the present case, as in Llewellyn, supra, not only was a shared vehicle involved, but the substance was found in the passenger compartment. Officer Harper testified at trial that appellants Blair and Lancaster asked him to throw the substance away and fine them for the buckshot instead. These factors were sufficient to enable the jury to infer constructive possession on the part of appellants.
Appellant Lancaster argues in his fourth point that the evidence was insufficient for the jury to find him guilty of unlawful attempt to take deer with a modern firearm. Testimony at trial revealed, however, that Lancaster had in his possession on January 2, 1984, during muzzle-loading season, a 12-gauge shotgun loaded with a round of buckshot. Although appellant Lancaster claimed that he was hunting rabbits, the fact that his gun was loaded with buckshot, ammunition used for killing deer, might suggest to a jury another intention. In addition, appellant Lancaster and his friends were found with dogs in a hunting area. The circumstances certainly entitled the jury to reach the conclusion that appellant Lancaster was hunting deer. As we have repeatedly held, the fact that evidence is circumstantial does not render it insubstantial. Graham v. State, 6 Ark. App. 376, 642 S.W.2d 342 (1982).
We find no reversible error in appellant Blair’s third point, in which he contends that the evidence was insufficient to sustain his conviction on the charge of third degree escape. Ark. Stat. Ann. § 41-2812 (Repl. 1977) provides:
(1) A person commits the offense of third degree escape if he escapes from custody.
(2) It is a defense to a prosecution under this section that the person escaping was in custody pursuant to an unlawful arrest.
Blair left the cemetery area after the Game and Fish officers had detained the three young men and had searched their vehicle. Blair asserted that he had received permission to look for his dogs, which were running loose, and Officer Harper testified that he had told appellants that they could get their dogs if they wished to do so. Implicit in both the request and the approval, however, was the timely return of appellant Blair, with or without his dogs. When the officers returned to the vehicle, Blair had disappeared with the Tupperware cake box and was not seen again that day. The testimony presented to the jury a question of fact, and we conclude that there was substantial evidence for the jury to decide that appellant Blair was guilty of third degree escape as defined by the statute.
Finally, appellant Blair argues in his fourth and fifth points for reversal that the evidence was insufficient for the jury to find him guilty of breaking or entering and tampering with evidence. While we are convinced that there was sufficient evidence on both counts, we are compelled to merge the offense of breaking or entering with that of tampering with physical evidence and dismiss the former and affirm the latter.
Ark. Stat. Ann. § 41-2003 (Repl. 1977) provides, in pertinent part: “A person commits the felony of breaking or entering if for the purpose of committing a felony he enters or breaks into any. . .vehicle. . .” The offense is graded as a class D felony. One who “alters, destroys, suppresses, removes or conceals any record, document or thing with the purpose of impairing its verity, legibility, or availability in any official proceeding or investigation” commits the offense of tampering with physical evidence, under the facts of this case, where a controlled substance was involved, in a class D felony. The jury assessed a fine of $500 for each offense, with no imprisonment.
Convictions for more than one offense are prohibited by Ark. Stat. Ann. § 41-105(l)(a) (Repl. 1977) when, as here, “one offense is included in the other.” In the instant case, the charges of breaking or entering and tampering with physical evidence were based upon the same elements, i.e., appellant Blair’s breaking into the Game and Fish officers’ vehicle to remove the Tupperware cake box. Ark. Stat. Ann. § 41 -105 (2) (a) states that a lesser included offense is one “established by proof of the same or less than all the elements required to establish the commission of the offense charged.” Up through the point where Blair entered the vehicle to remove the container the elements necessary to prove the commission of the two offenses were identical. Because the element of actual removal was also required for tampering with physical evidence, we find it appropriate to merge the two felonies into one. Thus we affirm appellant Blair’s conviction for tampering with physical evidence and reverse and dismiss his conviction for breaking or entering.
Affirmed in part; reversed and dismissed in part.
Cracraft, C.J., not participating. | [
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Lawson Cloninger, Judge.
Appellant David M. Dacus was convicted of driving while intoxicated (first offense) in violation of Ark. Stat. Ann. § 75-2503 (Supp. 1985). The trial court fined appellant $ 150.00 plus costs, sentenced him to twenty-four hours in jail, suspended his driver’s license for ninety days, and ordered him to participate in an alcohol abuse program. For his appeal appellant argues that the police stopped him without sufficient reasonable cause and thus the court should have excluded the results of his breathalyzer test. We find the trial court’s actions to be proper and affirm.
On May 7,1984, at about 2:40 a.m., two Jacksonville police officers observed a small car stopped in the middle of a lane on Main Street. The officers testified that they considered this to be a traffic hazard since the car was stopped about 100 feet beyond an “S” curve, and another car coming through the curve might not be able to stop before colliding with the stopped car. One of the officers stated that she saw what appeared to be people running around the car. As the officers approached the car it took off at a high rate of speed, squealing its tires. The officers followed the car for a few blocks and stopped it after it had turned right on Harris Road. When the officers approached appellant, who had been driving the car, they detected a strong odor of alcohol. Officer Harper then read appellant his Miranda rights and gave him a field sobriety test. Appellant staggered when asked to walk heel to toe. When asked to stand with his arms at his sides and with his eyes closed, appellant swayed and his eyes fluttered. Appellant was then placed under arrest and was given a breathalyzer test, the results of which were .11%.
Appellant argues that according to the implied consent statute, Ark. Stat. Ann. § 75-1045(a)(l) and (3), (Supp. 1985), a police officer must have reasonable suspicion that a driver is intoxicated at the time he is stopped before he can be required to submit to a breathalyzer test. It is appellant’s contention that since the officers admitted that they had no reason to believe that appellant was intoxicated at the time they made the.stop, the subsequent breathalyzer test was inadmissible. We disagree.
In a case we recently decided, we analyzed a similar argument under the provisions of A.R.Cr.P. Rule 3.1, Van Patten v. State, 16 Ark. App. 83, 697 S.W.2d 919 (1985). There we held that if a stop was unreasonable according to Rule 3.1, then the subsequent evidence of DWI, including the breathalyzer test, should be excluded. Rule 3.1 reads in pertinent part:
A law enforcement officer lawfully present in any place may, in the performance of his duties, stop and detain any person who he reasonably suspects is committing, has committed, or is about to commit (1) a felony, or (2) a misdemeanor involving danger of forcible injury to persons or of appropriation of or damage to property, if such action is reasonably necessary either to obtain or verify the identification of the person or to determine the lawfulness of his conduct.
Stopping a car outside of a business or residential district, whether attended or unattended, on the paved or main traveled part of the road is a violation of Ark. Stat. Ann. § 75-647 (Repl. 1979). The officers testified that the reason they stopped appellant was that his parked car created a traffic hazard. We think, under the totality of the circumstances, the officers had specific, particular, and articulable reasons to suspect that a misdemeanor involving danger of injury to persons or property was being committed by the appellant. Leopold v. State, 15 Ark. App. 292, 692 S.W.2d 780 (1985).
Thus, under the totality of the circumstances, we think that the officers’ stop of appellant was reasonable under A.R.Cr.P. 3.1, and the evidence of the DWI was properly admitted.
Affirmed.
Glaze and Mayfield, JJ., agree. | [
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George K. Cracraft, Judge.
The Masonite Corporation appeals from a determination of the Arkansas Workers’ Compensation Commission that the permanent total disability sustained by Albert Mitchell was not subject to apportionment pursuant to Ark. Stat. Ann. § 81-1313(i) (Supp. 1985) and in awarding an attorney’s fee. We find no error.
In a hearing before the Commission Mitchell claimed that he was totally and permanently disabled as a result of a scheduled injury for which he was awarded an anatomical disability rating of 75% to the right arm below the elbow. He contended that because of other wage loss factors, particularly congenital mental retardation, he was totally disabled. The employer conceded that the anatomical disability coupled with the mental deficiency resulted in permanent total disability but contended that the Second Injury Fund should be liable for that portion of the disability which exceeded the anatomical rating under Ark. Stat. Ann. § 81-1313 (i). The Second Injury Fund contended that Mitchell was not totally and permanently disabled and, in the alternative, his mental retardation was not such an “impairment or disability” as would give rise to Second Injury Fund liability.
The Commission found that Mitchell was totally and permanently disabled but agreed with the Second Injury Fund that the congenital mental retardation was not such an impairment as would authorize apportionment. The Commission further found that the position taken by the employer was a controversion of all benefits in excess of that attributable to the anatomical rating and awarded an attorney’s fee in the maximum amount allowable under the statute. This appeal followed.
The facts are not in dispute. Mitchell sustained a traumatic amputation of three fingers on his right hand in a job related accident. He was given an anatomical rating of 75% disability to his right arm. Dr. Douglas Stevens testified that Mitchell had an I.Q. of 50 and was moderately retarded. He stated that the appellee had always been a marginal worker with only the physical capacity to do unskilled manual labor and never possessed the capacity to work in any other employment. He stated that this injury made it impossible for Mitchell to return to the field in which he had been trained; rehabilitation was not indicated; the prior impairment was intellectual rather than physical and had been with him since childhood. Dr. Stevens concluded that the mental impairment coupled with his anatomical disability had effectively removed Mitchell from the job market in any employment. Masonite does not contend that this evidence does not support a finding of permanent total disability under the rule announced in Glass v. Edens, 233 Ark. 786, 346 S.W.2d 685 (1961). It argues only that the Commission erred in holding that congenital retardation is not “a previous disability or impairment” which gives rise to a claim against the Second Injury Fund under the statute. This argument has previously been rejected in Rooney & Travelers Ins. Co. v. Charles, 262 Ark. 695, 560 S.W.2d 797 (1978) (decided under earlier apportionment statutes) and our recent opinion in Osage Oil Company v. Rogers, 15 Ark. App. 319, 692 S.W.2d 786 (1985).
The facts in Charles are similar to those in the case at bar. There the claimant had an I.Q. of 50 as a result of congenital mental retardation. Because of this he had entered the job market as an unskilled manual laborer; and never worked in any other employment, and was working in that capacity at the time of an injury for which he was given an anatomical disability rating of 20% to the body as a whole. The Commission found that his anatomical disability coupled with his intellectual impairment resulted in permanent total disability. On appeal the employer argued that the congenital mental deficiency was not a proper work loss factor to be considered in determining total disability under Edens, but was a prior disability for which apportionment was indicated under then existing statutes. The Supreme Court declared that it was proper to consider congenital mental retardation as a work loss factor in determining permanent disability under Edens but it was not apportionable because such retardation had not been independently producing some degree of disability before the accident and had not continued to operate as a source of disability thereafter.
In Charles our court recognized that our compensation law defines disability as “incapacity because of injury to earn in the same or any other employment the wages the employee was receiving at the time of injury.” Ark. Stat. Ann. § 81-1302(e) (Repl. 1976). It reasoned that mental retardation existing at the time a worker initially enters the job market cannot constitute disability in the compensation sense because compensation entitlement is based on previous earning capacity and measured by loss of that capacity.
The appellant argues that Charles is no longer applicable. It contends that at the time it was decided the apportionment statutes used only the word “prior disability” and made no provision for a “prior impairment.” It asserts that by adding “or impairment” after the word “disability” in § 4 of Act 290 of 1981 the legislature intended to make the fund liable whether or not the prior impairment was causing loss of earning capacity prior to the injury. That argument was rejected in Osage Oil Company v. Rogers, supra, where we held that the inclusion of the word “impairment” was intended only to make it clear that the first impairment did not have to be one which would be compensable under the act but rather, the definition included non-work-related ones. The test was, and is, whether or not the prior impairment was effectively producing disability in the compensation sense (diminished earning capacity) before the accident and continued to do so afterwards.
Here, as in Charles, the worker entered the labor market as an unskilled manual laborer. He was following that employment without diminished earning capacity at the time of his work-related injury. There is no evidence that appellee could not have continued in the same or similar employment at the same wages he had always earned had it not been for the injury to his arm. We find no error in the Commission’s conclusion that on these facts there was no Second Injury Fund liability.
Appellant next contends that the Commission erred in awarding maximum attorney fees. Ark. Stat. Ann. § 81-1332 (Supp. 1985) authorizes the Workers’ Compensation Commission to order an employer or insurance company to pay legal fees of a claimant but limits such fees to the amount of compensation controverted and awarded. The employer argues that because it stipulated that Mitchell was totally disabled, its prayer that all benefits in excess of the anatomical rating be the obligation of the Second Injury Fund was not a controversion. The question of whether a claim is controverted is one of fact to be determined from the circumstances of each particular case and the Commission’s finding will not be disturbed if there is substantial evidence to support it. New Hampshire Ins. Co. v. Logan, 13 Ark. App. 116, 680 S.W.2d 720 (1984). The Commission found that where the combined action of the employer and Second Injury Fund are considered, the claimant’s right to benefits had been placed in jeopardy. If Mitchell had not hired an attorney, and the employer had prevailed in its contention that its liability was limited to claimant’s impairment pursuant to § 81-1313(i), and the Fund had prevailed in its contention that Mitchell was not permanently and totally disabled, Mitchell’s compensation award would have been limited to his scheduled disability. We conclude that there was substantial evidence to support the Commission’s finding that the employer had controverted all the benefits in excess of the anatomical rating. New Hampshire Ins. Co. v. Logan, supra.
The appellant next contends that the Commission abused its discretion in awarding the maximum allowable fee in the absence of evidence of the reasonable value of the services performed. Ark. Stat. Ann. § 81-1332 provides that in all cases where the Commission finds that a claim has been controverted it shall direct the fees for legal services be paid in addition to compensation, but such fees are limited to the amount of compensation controverted and subsequently awarded. It further provides that in determining the amount of fees the Commission shall take into consideration the nature, length and complexity of the services performed and the benefits resulting therefrom to the compensation beneficiary.
We agree that this section does not authorize the arbitrary allowance of maximum fees in every case. It specifically sets out those factors which are to be considered in arriving at a reasonable attorney’s fee. The Commission has discretion in .allowing attorneys’ fees and may consider its own knowledge and experience in such matters. It is in a position to determine from the conduct of the hearing and the state of its own record, the nature and extent of the services and the benefits resulting to the beneficiary. Although there was no testimony as to the extent and value of the services of the attorney, the employer has not demonstrated to us from the record that the attorney in this case was not entitled to the fee allowed him, or that it was not based on the consideration of those criteria set out in the statute. We find no abuse of discretion.
Affirmed.
Corbin and Cooper, JJ., agree. | [
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Donald L. Corbin, Judge.
Appellant, National Security Fire & Casualty Company, appeals from the denial of its motion for directed verdict. Appellee, Maxine Williams, brought suit upon a fire insurance policy issued by appellant to her covering a dwelling owned by appellee and used as rental property. The policy was in the sum of $5,000 and a premium of $85 had been paid by appellee to appellant. The dwelling burned to the ground on or about July 26, 1983. As a defense appellant claimed the policy suspended coverage under a provision which provided:
Conditions Suspending or Restricting Insurance. Unless otherwise provided in writing added hereto this Company shall not be liable for loss occurring:
(a) while the hazard is increased by any means within the control or knowledge of the insured; or
(b) while a described building, whether intended for occupancy by owner or tenant, is vacant or unoccupied beyond a period of sixty consecutive days.
Appellant moved for a directed verdict at the close of the case on the basis that the proof unequivocally established that the property was vacant or unoccupied beyond a period of sixty consecutive days. Appellee responded by stating that the facts were in dispute as to whether or not the house had been reoccupied which presented a jury question. The trial court denied the motion finding that appellee had presented a sufficient question of fact which should be submitted to the jury for its determination. The jury returned a verdict for appellee in the amount of $5,000 from which appellant appeals. We affirm.
Appellee testified that the last tenant who occupied the dwelling prior to the Campbells was William Pyle. She stated that Pyle rented it from October of 1982 until he moved out. His furniture stayed in the house until the last of April or May of 1983. Appellee testified that Pyle was behind in his rent and had not paid any rent after November of 1982. Appellee’s son went by the property some time in May and noticed that Pyle’s furniture was still there. Appellee testified that she was contacted by Dora Campbell on the 24th or 25th of July, 1983. Campbell wanted to rent the property. Appellee agreed that Dora Campbell could go ahead and move her furniture in and start the rent the first of August, 1983. Appellee stated that she intended for the house to be occupied by the Campbells on the 25th of July, 1983.
Sue Bustin, the mother of Dora Campbell, testified that her daughter began moving in on July 25,1983. A partial truck load consisting of a refrigerator, clothes and a few end tables was placed in the house. She stated that her daughter planned to finish moving and spend the night of the 25th in the house. The witness testified that she was certain Pyle began moving.his furniture out on the 20th day of May. On May 21, she went to the property and found everything gone from the house. Sue Bustin drove to the property on July 26 and saw it burn to the ground. After returning to her home, she stated that she had a letter in the mail from appellee Maxine Williams which was postmarked July 25,1983. The letter informed Sue Bustin that Maxine Williams would rather not rent the house to the Campbells and asked her to tell the Campbells that she had changed her mind about renting it. Sue Bustin testified further that approximately one week after the fire appellee Maxine Williams came to her house and asked her not to mention the letter because it would keep her from drawing her insurance.
Appellee Maxine Williams testified in rebuttal that she did write the letter to Sue Bustin but denied that she told her after the fire not to mention the letter. She stated further that at the time the Campbells were moving in she had not cancelled her agreement.
Dora Campbell testified that she heard from her mother that the Pyles were moving their furniture out approximately a month or two before she started moving in. She called appellee on the 25th of July and received permission to move in immediately with rent to begin on August 1. She stated that she moved about three or four boxes of clothes and some end tables into the house on July 25. She had planned to finish moving in the following day after she returned from Hope, Arkansas. She testified that she would have spent the night in the house on the 25th if she had finished moving in and the electricity had been turned on. She had called the power company on July 25, 1983, and was informed they would be out the first thing in the morning on the 26th to turn the power on. Dora Campbell cleaned up the house on the 25th and hauled off some trash. Her husband, Bruno Campbell, testified to essentially the same facts.
Witnesses on behalf of Arkansas Power and Light Company testified that the last active date for billing purposes for power usage at the premises was January 7, 1983. Their records indicated that the meter was inactive after that date and power cut off for nonpayment of the bill. They had received a phone call from Dora Campbell on July 25 concerning the connection of electricity and power was to be connected on July 26. The power company received word of the fire and the work order was cancelled for July 26, 1983.
Appellant argues in its first assignment of error that the trial court erred in failing to grant its motion for a directed verdict. It contends that there were simply no facts in dispute that were established by any credible evidence. Appellant states in its brief that there are two critical points concerning whether or not the property was vacant or unoccupied for sixty consecutive days. The first question to be resolved was when did the Pyle family move out and the second question to be answered was whether or not the Campbell family reoccupied the property on July 25, 1983. Both parties cite Duckworth v. Peoples Indemnity Ins. Co., 235 Ark. 67, 357 S.W.2d 26 (1962), for the correct definitions of the terms “vacant” and “unoccupied”. The Supreme Court there approved the trial court’s recitation of “vacant” as meaning without inanimate objects. “Unoccupied” was defined as meaning without animate occupants. Furthermore, the Court agreed that a dwelling is “occupied” when it is in actual use by human beings, who are living in it as a place of habitation, and is “unoccupied” when it has ceased to be a customary place of habitation or abode, and no one is living or residing in it. “If, however, a dwelling is left without an occupant for an unreasonable length of time, it should be deemed unoccupied irrespective of the intention of the occupant.” Id. at 69.
In Farmers Fire Insurance Company v. Farris, 224 Ark. 736, 276 S.W.2d 44 (1955), the Supreme Court addressed the question of whether or not the appellant was entitled to an instructed verdict on the theory that under all of the evidence the insured buildings had been “vacant or unoccupied” more than ten days at the time of the fire. The Court there held that under the facts, a question of fact was made for the jury as to whether the appellant insurance company had sustained its burden of proving that the buildings had been “vacant or unoccupied” for more than ten days before the fire and affirmed the trial court’s action in refusing appellant’s request for an instructed verdict. It was noted in the decision that the meaning of the words “vacant or unoccupied” was a question of law and that whether the buildings had that status at a given time was a question of fact. The Court quoted with approval the following language from other jurisdictions as follows:
And where the undisputed facts as naturally interpreted show vacancy and unoccupancy, and consequent increase of risk, it becomes the duty of the court to declare a verdict for the insurer. Moore v. Phoenix F. Ins. Co., 64 N. H. 140, 10 Am. St. Rep. 384, 6 Atl. 27.
But ordinarily the question, whether a building is vacant or unoccupied at the time a loss occurs, is one of fact for the jury. Schuermann v. Dwelling House Ins. Co.; Gash v. Home Ins. Co.; Phoenix Ins. Co. v. Tucker; and German-American Ins. Co. v. Buckstaff, supra; State v. Tuttgerding, 8 Ohio Dec. Reprint, 72. (emphasis ours)
In determining on appeal the correctness of the trial court’s action concerning a motion for directed verdict by either party, we view the evidence that is most favorable to the party against whom the verdict is sought and give it the highest probative value, taking into account all reasonable inferences deducible from it. The motion should be granted only if the evidence so viewed would be so insubstantial as to require a jury verdict for the party to be set aside. Green v. Gowen, 279 Ark. 382, 652 S.W.2d 624 (1983), citing Pritchard v. Times Southwest Broadcasting, Inc., 277 Ark. 458, 642 S.W.2d 877 (1982).
In viewing the evidence in this light, we find that the trial court properly denied appellant’s motion for directed verdict. The facts were clearly in dispute as to whether appellant had sustained its burden of proof as to whether or not the property was reoccupied by the Campbells on July 25,1983. Accordingly, we find no merit to appellant’s first assignment of error.
Appellant also contends that the trial court erred in failing to submit the case to the jury on interrogatories. In this regard it concedes that pursuant to ARCP Rule 49(a), which provides in pertinent part as follows:
The court may require a jury to return only a general verdict which pronounces generally upon all the issues, or the court may submit to the jury, together with appropriate forms for a general verdict, written interrogatories upon one or more issues of fact the decision of which is necessary to a verdict. . . .,
the requiring of interrogatories is discretionary with the court. Appellant argues that it was only required to prove that either the property was vacant or unoccupied and not both and that the terms are not synonymous pursuant to the Supreme Court’s holding in Duckworth, supra. Therefore, appellant contends, the only way to determine that the jury understood the clause in the insurance policy was to submit the case on interrogatories. We do not agree. After reviewing both the instructions and appellant’s proposed two interrogatories, we fail to see how the trial court abused its discretion in refusing to submit the interrogatories to the jury. Also, appellant has not specifically pointed out how the trial court abused its discretion in failing to submit its interrogatories, and we find no merit to this argument.
Affirmed.
Cracraft, C.J., and Mayfield, J., agree. | [
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James R. Cooper, Judge.
In this criminal case, the appellant was charged with first degree murder. After a non-jury trial, he was convicted of the crime of manslaughter for the shooting death of Larry Moss and was sentenced to six years in the Arkansas Department of Correction. From that decision, comes this appeal.
On appeal, the appellant raises four points. First, he alleges that the trial court erred in allowing the State’s expert pathologist to testify on matters outside the scope of her expertise. Second, he argues that the trial court erred in admitting multiple photographs of Moss’s body. Next, he argues that the court erred in refusing to admit Moss’s police record from the Little Rock Police Department as evidence. Last, he argues that there was insufficient evidence to sustain his conviction for manslaughter.
Pursuant to the Arkansas Supreme Court’s decision in Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984), we first examine the appellant’s contention concerning the sufficiency of the evidence. We review the evidence in the light most favorable to the appellee, and we affirm if there is substantial evidence to support the verdict. Harris v. State, 15 Ark. App. 58, 688 S.W.2d 947 (1985); Wilson v. State, 10 Ark. App. 176, 662 S.W.2d 204 (1983). Substantial evidence must do more than merely create a suspicion; it must be of sufficient force and character so as to force the mind beyond conjecture and compel a conclusion one way or the other with reasonable certainty. Harris, 284 Ark. at 252; Jones v. State, 11 Ark. App. 129, 668 S.W.2d 30 (1984).
Manslaughter is committed if, among other things, a person
causes the death of another person under circumstances that would be murder, except that he causes the death under the influence of extreme emotional disturbance for which there is reasonable excuse. The reasonableness of the excuse shall be determined from the viewpoint of a person in the defendant’s situation as he believes it to be; ... he recklessly causes the death of another person . . .
Ark. Stat. Ann. Section 41-1504(l)(a), (c) (Repl. 1977). Here, the appellant admittedly shot Moss on April 2,1984, but claimed that he killed Moss in self-defense. Moss’s body was found in the Lakewood Addition of North Little Rock on April 2, 1984, at 7:30 P.M. He had been shot three times, twice in the top of the head and once in the center of the forehead. Although taken into custody the evening of the shooting for D.W.I., the appellant did not report the shooting until the next morning when he called Little Rock Municipal Judge Allan Dishongh. Judge Dishongh contacted Little Rock Police Chief Sonny Simpson, and they went to the scene of the shooting, where they found the appellant.
While the appellant testified that Moss kept saying, “these hands can kill,” there is no evidence in the record that Moss had, or that the appellant thought that he had, any weapon. The evidence indicates that the fatal shot was a level one, fired inches from Moss’s forehead. When Moss was found, his arms were entangled in his jacket sleeves in such a manner that they were effectively restrained. The evidence also shows that Moss’s blood-alcohol level at the time of his death was one which would normally render a person stuporous. Arkansas law provides that, when a fact finder
“believes that the defendant shot under the belief that he was about to be assaulted, but that he acted too hastily and without due care, and was therefore not justified in taking life under the circumstances, he is guilty of manslaughter.”
Hathcock v. State, 256 Ark. 707, 710-11, 510 S.W.2d 276, 279 (1974), (quoting Bruder v. State, 110 Ark. 402, 161 S.W.2d 1067 (1913). The trial court here could easily find from the above evidence that the appellant acted too hastily in shooting Moss. Therefore, we hold that the evidence was sufficient to support the appellant’s conviction.
The appellant argues that the trial court erred in allowing Dr. Donna Brown, the State’s expert pathologist, to give opinions on matters outside her field of expertise. The first portion of Dr. Brown’s testimony to which the appellant objected concerned the lack of “powder stippling” on Moss’s hands. The following question was asked:
Q. In your opinion had a person been attempting to fend off the shot to the forehead and had his hands in a position in your opinion would they—
MR. MCARTHUR
(Interposing) Objection, your Honor. This is really beyond the scope of this lady’s qualifications. She is a medical doctor, not some expert on firearms in what they may or may not do.
THE COURT:
Overruled.
MR. NEAL, CONTINUING:
In your opinion, if a person had had their hands in close proximity of the forehead at the time of the shot would you have expected to have found powder burns or residue or stippling on the hands?
A. It is likely that I could have seen if it [sic] the hands were close enough together in an attempt to defend oneself. They could have been out here and still not quite gotten to the forehead or elsewhere.
Q. Okay.
A. But I saw no direct evidence of a natural, you know, block of the hand or wrist or something like that. That stippling would indicate to me.
We hold that the trial court did not err in overruling the appellant’s objection to the quoted testimony. As the Arkansas Supreme Court has said:
Every opinion 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).
Robinson v. State, 274 Ark. 312, 315, 624 S.W.2d 435, 437 (1981). Under Ark. Stat. Ann. Section 28-1001, Unif. R. Evid. 701 (Repl. 1979), a witness, even though not qualified as an expert in an area, may give an opinion which is rationally based on his or her perceptions and which is helpful to a clear understanding of that witness’s testimony or of the determination of a fact in issue. Here, the witness had been allowed to testify, without objection, that powder stippling had occurred on the forehead, but not the hands of the victim, and that such stippling occurred only when a gun is fired at a very close range, i.e., a matter of inches, not feet. Dr. Brown’s opinion that the hands were not within inches of the forehead, as she felt would have been the case if a natural block of the shot had taken place at the time of the shooting, is rationally based on her perceptions and is helpful in making a determination as to whether Moss had been able to use his hands in attempting to ward off the shot. See Gruzen v. State, 276 Ark. 149, 634 S.W.2d 92, cert. denied, 459 U.S. 386 (1982).
The appellant also objected to Dr. Brown’s testimony concerning Moss’s ability to move his arms when his jacket was pulled approximately halfway down his back and his arms were still in the sleeves. Moss’s jacket was in this position when his body was found and when Dr. Brown examined the body. The appellant objected to Dr. Brown’s testimony that Moss’s arms were restrained, alleging that there was no proof as to how his arms got in that position. On appeal, that appellant argues that this testimony was outside Dr. Brown’s area of expertise. As the State points out, only the specific objections made at trial are available on appeal; all others are waived. Whaley v. State, 11 Ark. App. 248, 669 S.W.2d 502 (1984). However, even if the appellant had properly preserved this objection below, he has failed to demonstrate any prejudice from the alleged error, as he allowed another witness to offer the same testimony without objection. We will not reverse absent demonstrated prejudicial error. Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984), cert. denied, _ U.S _, 105 S. Ct. 1847 (1985).
The appellant next contends that the trial court erred in allowing certain photographs of Moss’s body to be introduced into evidence. The objection is to the number of photographs rather than to the photographs themselves. Photographs are admissible when they tend to corroborate the testimony of witnesses, show the nature and extent of the wounds or the savagery of the attack, aid the witnesses’ ability to describe the objects portrayed, or aid the fact finder’s ability to understand the testimony. Earl v. State, 272 Ark. 5, 612 S.W.2d 98 (1981). They are admissible unless their probative value “is substantially outweighed by the danger of unfair prejudice ... or needless presentation of cumulative evidence.” Ark. Stat. Ann. Section 28-1001, Unif. R. Evid. 403 (Repl. 1979). The weighing of these factors is a matter within the sound discretion of the trial court, and we will not overturn its decision without a showing of an abuse of that discretion. Tucker v. State, 3 Ark. App. 89, 622 S.W.2d 202 (1981). The fact that photographic evidence is cumulative or unnecessary does not, of itself, make it inadmissible. Spillers v. State, 272 Ark. 212, 613 S.W.2d 387 (1981). The pictures here were introduced by the State to show different views of the position of the body and the wounds. On that basis, the trial court allowed the pictures to be introduced into evidence, and we find no abuse of discretion.
The appellant next contends that the trial court erred in refusing to admit into evidence Moss’s Little Rock Police Department record for the limited purpose of showing his past history of alcohol use and abuse. The trial court refused to admit the prior record and stated:
a determination of fact of an issue that may be in trial in another Court is not admissible in evidence to prove that fact in the Court in which it is offered . . . The degree or content of alcohol to impair driving is such an amount that would have no probative value for the purposes that the [appellant] seeks the introduction . . . the arrest are [sic] so remote, at least most of them are to [not] have any probative value.
The appellant was attempting to use the record to show that Moss, unlike most people, was able to function with a blood-alcohol level of 0.29 per cent, the level found in Moss’s brain. Determining the relevancy of evidence is a matter within the trial court’s discretion; we will not reverse its ruling absent a showing of abuse of that discretion. Jones v. State, 277 Ark. 345, 641 S.W.2d 717 (1982); James v. State, 11 Ark. App. 1, 665 S.W.2d 883 (1984). Here, the court indicated that the blood-alcohol level required by law for the offenses shown on the proffered record was too low to be relevant to the claim that Moss was able to function with a blood-alcohol level almost three times the statutory limit. We hold that the trial court did not abuse its discretion in so ruling.
Affirmed.
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Lawson Cloninger, Judge.
In this appeal from a jury’s verdict in a breach of contract action, appellant raises three points for reversal. We affirm in part and reverse in part.
. Appellant’s predecessor, Southern Service and Management, Inc., a subsidiary of Hot Springs Savings and Loan Association, entered into a written agreement on August 31, 1978, with appellee, a builder, for the construction and sale of speculative homes in its Pine Meadows Subdivision in Hot Springs, Arkansas. The contract provided, among other things, that appellant would finance the project, pay all debts, and refrain from dealing with other speculative builders, while appellee, working for appellant on an exclusive basis, would split the profits from the sale of houses with appellant and receive a management fee of $20,000 per year. Subject to appellee’s satisfactory performance, the agreement was not to be terminated until all remaining lots in the subdivision were developed. The contract stated, however, that “If at any point of the agreement all work is halted as the result of [appellant’s] exercising its right to limit the number of units or its investment, this agreement may be terminated at the option of [appellant] upon written notice to [appellee].”
In March, 1980, First Federal Savings and Loan Association of Little Rock acquired Hot Springs Savings and Loan, and First Federal’s subsidiary, appellant First Service Corporation, absorbed Southern Service and Management, Inc. Appellant terminated the agreement without written notice on July 15,1980, by refusing to make additional advances of appellee’s management fees. Appellee filed suit for breach of contract on August 1,1980, seeking compensation for the unpaid management fees, profits on houses already built and sold, and profits on houses to be built on the remaining 134 lots in the subdivision. After trial on October 25 and 26, 1984, the jury rendered a verdict in appellee’s favor, awarding him $200,000 in compensatory damages and $200,000 in consequential damages. From that judgment this appeal arises.
Appellant argues in its first point for reversal that the trial court erred in submitting the issue of lost future profits to the jury on the basis of testimony by Barbara McCowan, appellee’s bookkeeper. According to appellant, appellee’s proof of lost profits was limited to McCowan’s testimony, which was based on various settlement sheets from which she concluded that appel-lee’s profit per house was about $2,300, derived from a total profit per house of between $4,500 and $4,600. McCowan’s figures, says appellant, did not include as costs allocations attributable to management fees or interest; moreover, the settlement sheets from which she testified reflected only ten of the twenty houses built by appellee.
The proof of lost profits must be shown by evidence which makes it reasonably certain what the party claiming them would have made. Robertson v. Ceola, 255 Ark. 703, 501 S.W.2d 764 (1973). A party attempting to recover anticipated profits under a contr'aet must present a reasonably complete set of figures and not leave the jury to speculate as to whether there could have been any profits. Amer. Fid. Fire Ins. Co. v. Kennedy Bros. Const., Inc., 282 Ark. 545, 670 S.W.2d 798 (1984); Sumlin v. Woodson, 211 Ark. 214, 199 S.W.2d 936 (1947). The proof must be sufficient to remove the question of profits from the realm of speculation and conjecture. Robertson v. Ceola, supra. The fact, however, that a party can state the amount of damages he suffered only approximately is not a sufficient reason for disallow ing damages if from the approximate estimates a satisfactory conclusion can be reached. If it is reasonably certain that profits would have resulted had the breached contract been carried out, then the complaining party is entitled to recover. Jim Halsey Co. v. Bonar, 284 Ark. 461, 683 S.W.2d 898 (1985).
In the present case, the record reveals that McCowan’s testimony was supported by appellee’s testimony and three exhibits detailing costs and profits on three separate completed houses, entitling appellee to $10,273.70. Further, the contract itself provided that the agreement was to cover “all remaining lots” in Units 1 and 2 and that profits were to be divided equally between the parties. Had the contract not been breached, appellee would have been entitled to half the profits from the sale of 134 houses, which, at the estimated figure of $2,300 profit per house, would have amounted to $308,208. The $20,000 annual management fee, unpaid since April, 1980, would have risen, after a period of fifty-four months, to $90,000.18.
On appeal, we view the evidence in the light most favorable to the appellee and affirm if any substantial evidence supports the jury’s verdict. Jim Halsey Co. v. Bonar, supra; Amer. Fid. Fire Ins. Co. v. Kennedy, supra. The weight of the evidence and the credibility of the witnesses are matters for the jury rather than the appellate court, and where there is a conflict in the evidence the determination by the jury of the issues is conclusive. Stamper v. Aluminum & Zinc Die Cast Co., 283 Ark. 92, 671 S.W.2d 170 (1984). In the instant case, we believe that the jury had before it sufficient evidence to determine that appellee had suffered a loss of future profits; thus, the issue was properly submitted.
Appellant’s second point for reversal, that the trial court erred in denying its motion for a new trial, is more persuasive. The motion stated that the trial court erred in allowing the jury to return both compensatory and consequential damages when no instruction was provided to assist the jury in understanding the meaning of consequential damages.
Appellee had submitted an instruction on consequential damages which was refused by the trial court. Although no alternative instruction defining consequential damages was subsequently requested or given, the trial court employed the term in the following interrogatory verdict form:
1. Do you find from a preponderance of the evidence that the defendants, SOUTHERN SERVICE AND MANAGEMENT, INC. now FIRST SERVICE CORPORATION have committed breach of a contract with the plaintiff, DAVID SCHUMACHER: ANSWER: Yes.
*2. If you find that the defendant has committed breach of a contract with the plaintiff, DAVID SCHU-MACHER, state the amount of any compensatory damages, such as lost profits and management fees, that you find from a preponderance of the evidence were sustained by the plaintiff, DAVID SCHUMACHER, as a result of the occurrence. $200,000
*3. If you find that the defendant has committed breach of a contract with the plaintiff, DAVID SCHU-MACHER, state the amount of any consequential damages that you find from a preponderance of the evidence were sustained by the plaintiff, DAVID SCHU-MACHER, as a result of the breach of contract. $200,000.00
*If your answer to #1 is “no”, you need not answer #2 and #3.
/s/ Robert Ross
It is evident from the form that, while compensatory damages are at least explained by illustration, consequential damages are merely named.
Compensatory, or general, damages are awarded for the purpose of making the injured party in a lawsuit, as nearly as possible, whole. Dunaway v. Troutt, 232 Ark. 615, 339 S.W.2d 613 (1960). This was accomplished in the present case by the jury’s award of $200,000 for lost profits and unpaid management fees. Consequential damages, an aspect of special damages, have been defined as “[s]uch damage, loss or injury as does not flow directly and immediately from the act of the party, but only from some of the consequences or results of such act.” Black’s Law Dictionary, 5th edn, citing Richmond Redevelopment and Housing Authority v. Laburnum Const. Corp., 195 Va. 827, 80 S.E.2d 574 (1954). Consequential damages for breach of contract are recoverable when they may be said to have been fairly within the contemplation of the parties. Shamburger v. Moody, 322 F.Supp. 196 (E.D. Ark. 1970); aff'd 437 F.2d 1358 (8th Cir. 1971).
Under the circumstances of this case, we do not feel that appellee’s evidence that he suffered severe financial problems as a result of appellant’s breach constituted consequential damages within the contemplation of the parties when the contract was made. See Dobbs, Remedies (1973), § 3.2. We must reverse the trial court’s judgment on this point and require either a remittitur of $200,000 from appellee or a new trial.
Appellant argues in its third point that the trial court erred in submitting the issue of damages to the jury in the absence of any evidence regarding the “present value” of appellee’s future loss. The record indicates that the judge, in the court’s instruction number 18, made the following statement to the jury:
I have used the expression ‘Present Value’ in these instructions with respect to certain elements of damage which you may find that the Plaintiff will sustain in the future. This means that if you find that the Plaintiff is entitled to recover any elements of damage which require you to determine their present value, you must take into consideration the fact that money recovered will earn interest, if invested, until the time in the future when these losses will actually occur. Therefore, you must reduce any award of such damages to compensate for the reasonable earning power of money, but only as to future damages.
In addition, the court prescribed the following method of calculating lost profits in instruction number 14: “Lost profits are determined by the formula: contract price minus cost minus cost of performance equals profit.”
Equipped with these directives, the jury was able to examine the evidence discussed earlier in relation to appellant’s first point. A single example will suffice to cover the amount awarded in compensatory damages. Appellee, as the uncontroverted testimony shows, was never paid for the last three houses he built. The profits accrued on the other seventeen houses totalled $34,071.57, averaging $2,004.21 per house. When the per house profit is multiplied by the 134 remaining lots, the profits lost as of the date of the trial amount to $268,564.14. This evidence was developed in the course of the trial, and, with the court’s instructions, provided the jury with ample information on which to base a decision regarding the present value of appellee’s future loss.
We find no substantial evidence to support the finding that appellee suffered consequential damages. The judgment is affirmed on the condition that remittitur is entered in the amount of $200,000 within thirty days; otherwise, the judgment will be reversed and the cause remanded for a new trial on all issues.
Mayfield and Glaze, JJ., agree. | [
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Tom Glaze, Judge.
This is an appeal by Elmer Smith from a judgment against him issued by the trial court, sitting as factfinder, and in favor of Unitemp Dry Kilns, Inc., for the sum of $4,042.27. The parties’ dispute arose from appellant’s plans to build a produce stand and a small minimart. Appellee later brought this suit for engineering costs and blueprints it furnished for appellant’s proposed construction. Appellant raises three points, contending the trial court erred in finding: (1) a contract existed between the parties for appellee’s services; (2) appellee was due the sum of $4,800.00 from appellant, when the contract conditioned payment upon appellee’s delivery of fully completed design blueprints; and (3) there was sufficient evidence to show appellant was indebted to appellee on the contract of September 30,1981, in the amount of $4,800.00. We find no merit in any of these points and, therefore, affirm.
We first consider appellant’s argument that no enforceable contract existed between the parties. The essential elements of a contract are (a) competent parties, (b) legal consideration, (c) mutual obligations, (d) subject matter, and (e) mutual assent. Hunt v. McIlroy Bank Trust, 2 Ark. App. 87, 616 S.W.2d 759 (1981). Appellant contends that the last two elements are missing in this case — i.e., specific subject matter and mutual assent (or meeting of the minds). We must disagree.
Appellant argues that the parties’ purported agreement, reduced to a letter dated September 30, 1981, lacked specificity of subject matter, as it merely required appellee to perform “certain design services” for appellant, and that, because it lacked a specific subject matter, there was no meeting of the minds. Our Court has defined “meeting of the minds” as “an agreement reached by the parties to a contract and expressed therein, [cit. omit.] or as the equivalent of mutual assent or mutual obligation, [cit. omit.].” Rice v. McKinley, 267 Ark. 659, 660-1, 590 S.W.2d 305, 307 (Ark. App. 1979). Because the parties’ September 30, 1981, letter-agreement was based upon certain specifics contained in an earlier written proposal dated June 26, 1981, we also note the settled rule that, where the agreement of the parties is embraced in two or more instruments, both or all of the instruments must be considered together. Integon Life Insurance Corp. v. Vandegrift, 11 Ark. App. 270, 669 S.W.2d 492 (1984).
From our review of the parties’ June 26th proposal and September 30th letter, we have no doubt that the appellant and appellee reached a meeting of the minds concerning specific and detailed subject matters. Appellee was to provide the design drawings enumerated in the June 26th proposal, and appellant was to pay appellee $4,800.00 for those drawings. Appellant admitted that he was to pay appellee $4,800.00 ten days after the signing of the September 30th letter-agreement. Both appellant and appellee signified their acceptance by signing the letter of September 30th. We find no error in the trial court’s determination that the parties entered into a valid contract.
In appellant’s second point on appeal, he alleges that the trial court erred in finding that payment of the $4,800.00 was not conditioned upon appellee’s delivery of fully completed design blueprints. However, the contract, as accepted by appellant on October 6,1981, provides that “ [i] t is understood and agreed that ... for all practical purposes the design work has been completed.” Furthermore, Arthur Dillard, secretary of appellee and the one who signed and negotiated the contract on its behalf, testified that the agreement was for work already completed. In addition, Dillard testified that the plans, though not fully complete, were “virtually,” or “ninety-nine percent,” complete. He stated that the plans could not be made anymore complete until appellant secured the approval of the state health department. Appellant admitted that this approval had not yet been secured. Appellant further testified that he preferred not to complete the building at the present time because the interest rates had not come down to a reasonable level.
In Doup v. Almand, 212 Ark. 687, 690, 207 S.W.2d 601, 603 (1948), our supreme court held that, when a person “ ‘prepared plans and specifications for a building pursuant to an unconditional order or direction of the owner, he is entitled to recover for his services whether or not the plans are used if they substantially comply with the employer’s instructions.’ ” (quoting 6 C.J.S. Architects, § 14, (now § 31)). The supreme court has further held that,
[i]t is elementary that there is no breach of a contract where performance is prevented, or rendered impossible, by the conduct of the other party, [cit. omit.] It is also generally recognized that a defective performance is excused . . . where it is due to the acts of the owner or his representative, unless the contractor has not offered a substantial compliance with the contract, [cits, omit.]
Harris v. Holder, 217 Ark. 434, 439, 230 S.W.2d 645, 648 (1950). We find no error in the trial court’s holding, as appellee had substantially complied with the contract and appellant’s actions prevented any further performance by the appellee.
Appellant finally contends that there is insufficient evidence to prove that appellant owed appellee $4,800.00. However, as we mentioned earlier, appellant admitted that he understood he was to pay appellee $4,800.00 within ten days of signing the letter of September 30th. That letter, and Dillard’s testimony, indicated that the parties contemplated that the payment was for the plans as they were at that time. Therefore, the trial court was not in error in holding appellant was to pay appellee $4,800.00 under the terms of the September 30th letter.
There being no merit to any of appellant’s points of error, the judgment is affirmed.
Affirmed.
Cooper and Cloninger, JJ., agree. | [
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James R. Cooper, Judge.
The sole issue on appeal in this criminal case is whether the appellant was too intoxicated to form the mens rea necessary to commit the crimes of third degree escape and refusal to submit to a chemical test for intoxication. We affirm the lower court and hold that the common law defense of voluntary intoxication is no defense to the above stated crimes, because they do not require specific criminal intent.
An Arkansas state trooper observed the appellant driving in an erratic manner on April 27, 1984. The trooper promptly arrested the appellant for DWI, it being obvious from further observations that the appellant was highly intoxicated. While the trooper was taking inventory of the appellant’s car, the appellant managed to escape from the patrol car. He was quickly apprehended attempting to crawl away from the patrol car. The appellant tried to escape enroute to the county jail, disembarking from the patrol car while it was in motion. The arresting officer eventually delivered the appellant to the county jail, where another officer obtained the appellant’s signature on a statement of rights form. The officer was not able to obtain a satisfactory breath sample from the appellant, however, because the appellant feigned blowing into the breathalyzer.
The appellant was convicted of DWI, refusal to submit to the breath test, and third degree escape. Although the appellant concedes the DWI conviction, he argues on appeal that he was too intoxicated to be capable of forming “the necessary intent to plan an escape or to refuse the test.” We find no merit in the appellant’s contentions because neither of the statutory violations require a specific criminal intent; the escape and refusal to take the breath test need not have been planned.
Arkansas Statutes Annotated § 41-2812(1) (Repl. 1977) provides that “[a] person commits the offense of third degree escape if he escapes from custody.” Under Ark. Stat. Ann. § 75-1045(d) (Repl. 1979), a person may be guilty of refusing to submit to a chemical test for intoxication, such as the breathalyzer test, if the judge determines that the arresting officer had reasonable cause to believe the person arrested had been driving while intoxicated “and the person refused to submit to the test.” (Emphasis added.) It is obvious that the above quoted statutes do not specify the culpable mental state required to be established by the prosecution. Therefore, according to Ark. Stat. Ann. § 41-204(2) (Repl. 1977), culpability is established if the accused acts purposely, knowingly or recklessly. Coleman v. State, 12 Ark. App. 214, 671 S.W.2d 221 (1984). It follows that specific intent is not a necessary element of these crimes; the mens rea may be satisfied by proof that the accused acted recklessly or knowingly, as well as by proof that the accused acted purposely.
The common law defense of voluntary intoxication was reinstated in Arkansas after the legislature amended Ark. Stat. Ann. § 41-207 (Repl. 1977) to remove self-induced intoxication as a statutory defense. Varnedare v. State, 264 Ark. 596, 573 S.W.2d 57 (1978). At common law, voluntary intoxication was available as a defense only to those crimes which required specific intent. Bowen v. State, 268 Ark. 1088, 598 S.W.2d 447 (Ark. App. 1980). A crime with “knowingly” as the requisite mental state does not require a specific intent, so that self-induced intoxication is not a defense. Bowen, supra. Voluntary intoxication is likewise no defense to a crime with a lesser mens rea, such as “recklessly,” because specific intent is not required. We now hold that since a conviction of third degree escape or refusal to submit to a chemical test can be based on any of three culpable mental states, by operation of Ark. Stat. Ann. § 41-204(2) (Repl. 1977), these crimes are general intent crimes for which voluntary intoxication is no defense.
Affirmed.
Cracraft, C.J., and Corbin, J., agree. | [
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Melvin Mayfield, Judge.
This is an appeal from a denial of unemployment benefits. The appellant was employed by a Little Rock company as a truck driver in October of 1982 and he resigned on August 13, 1984. Appellant applied for unemployment compensation on the basis that he had been forced to resign because of the harassment of his family by his employer. Finding that appellant had left his job without good cause connected with the work, the agency denied benefits. That decision was appealed to the Appeal Tribunal.
At the hearing before the tribunal, the appellant testified that when he was in town the company wouldn’t give him the messages his wife left when she called and, when he was out of state, the company would not give her a phone number where she could get in touch with him. He said sometimes “they” would tell him his wife called when she had not and sometimes “they” would tell him she said things she had not said. He testified that he finally got tired of all the harassment and “just quit.”
The employer’s general manager testified that appellant was aware when he was hired that he would be required to spend a lot of time out of town; that appellant had always been one of the top money-makers in the company; and that appellant’s wife was the one who did the harassing. Another employee testified that appellant “had been having family problems” at the time he quit work.
The appeals referee affirmed the agency’s denial of benefits and appellant appealed to the Board of Review. His petition for appeal asked that the case be remanded to the Appeal Tribunal for the presentation of additional evidence. This additional evidence was identified as documents from the Equal Employment Opportunity Commission (EEOC) and a letter from a doctor. The petition stated this additional evidence was material because “when I quit I was sick with my nerves from working for 2 wks without any time off.” The petition also stated that appellant had reported his employer to the EEOC and the Department of Transportation and, because of this, lies were told at the Appeal Tribunal hearing to prevent him from drawing unemployment benefits.
The reason appellant gave for not offering this additional evidence at the hearing was “because I did not have the letters to prove it.” Submitted to the Board of Review, apparently with the petition for appeal, was additional evidence, in the form of a statement from appellant’s doctor and some documents from the Equal Employment Opportunity Commission. The doctor’s statement said nothing about appellant’s nerves and the EEOC documents gave appellant the right to sue his employer for racial and age discrimination but stated the evidence indicated there was no reasonable cause to believe such discrimination had occurred.
The Board of Review notified appellant by letter that his appeal had been placed on the docket but that “pursuant to the Arkansas Court of Appeals decision in Mark Smith v. Everett, 6 Ark. App. 337, 642 S.W.2d 320 (1982), the Board of Review is without jurisdiction to accept additional evidence in appeals pending before it. Therefore, no further evidence can be submitted.” After due consideration, the board made a finding that appellant voluntarily left his last work without good cause in connection with the work, and the decision of the Appeal Tribunal was affirmed.
On appeal to this court, the appellant’s only contention is that the Board of Review erred in refusing to accept any evidence other than that which was previously submitted before the Appeal Tribunal. We do not agree.
In Mark Smith v. Everett, supra, we stated:
As a part of this decision, we further hold that the Board does not have the jurisdiction to accept additional evidence in appeals pending before it.
However, in Jones v. Director of Labor, 8 Ark. App. 234, 650 S.W.2d 601 (1983), we circumscribed that statement as follows:
We may have made an unhappy choice of words when we said in that case that the board “does not have the jurisdiction to accept additional evidence in appeals pending before it.” We recognize that Ark. Stat. Ann. § 81-1107(d)(3) (Repl. 1976) provides the board, on appeal, may decide upon the evidence previously submitted or on such additional evidence as it may direct to be taken and that § 81-1107(d)(7) (Supp. 1981) provides the Court of Appeals, on appeal from the board, may order additional evidence to be taken before the board.
And we added in Jones that the phrase “may order additional evidence to be taken before the board” means additional evidence directed to be taken at some hearing, conducted by the board or someone designated by the board, at which witnesses could appear and opportunity for cross-examination could be afforded.
In Maybelline Co. v. Stiles, Director of Labor, 10 Ark. App. 169, 661 S.W.2d 462 (1983), the claimant had been discharged for violation of company rules, i.e., leaving her duty station without permission. A hearing had been held at which the claimant testified that when the line was down (not operating for maintenance or repair), employees were permitted to leave without permission. She testified she had only gone to the toilet while the line was down and that it was still down when she returned. After a determination that the claimant was eligible for benefits, the employer appealed to the Board of Review and submitted additional evidence to show that the line had not been down on the day in question. The board affirmed the decision of the referee and did not consider the additional evidence, citing Mark Smith v. Everett, supra. On appeal to this court, the employer argued that the board erred by failing to order a new hearing to receive the new evidence. We affirmed the decision of the board, stating on this point:
Although it is within the discretion of the Board of Review to direct that additional evidence be taken, Ark. Stat. Ann. § 81-1107(d)(3) (Supp. 1983), nothing in the law requires a second hearing so long as each side has notice of and a fair opportunity to rebut the evidence of the other party.
In the instant case, the Board of Review was correct when it informed appellant it could not accept additional evidence “in appeals” pending before it. Of course, the board could have ordered another hearing for the taking of additional evidence, but this is within the board’s discretion. We find no abuse of that discretion in this case because (1) the additional evidence described in appellant’s petition for appeal to the Board of Review concerned reasons for quitting his job that were not even mentioned in his testimony at the hearing before the Appeal Tribunal, (2) the board was given no valid explanation of why he had not testified that when he quit work he was “sick with his nerves” from working for two weeks without any time off, and that the company employees were lying because he had reported the company to the EEOC and the Department of Transportation, and (3) the documentary evidence submitted to the board could only lend cumulative support to evidence the appellant failed to give before the Appeal Tribunal.
Affirmed.
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Melvin Mayfield, Judge.
This is an appeal from the Workers’ Compensation Commission. The employee sprained her ankle as the result of a fall in her employer’s parking lot. From this injury, which was stipulated as compensable, the employee developed a rare condition known as reflex sympathetic dystrophy.
According to the evidence, this condition was first described by doctors during the Civil War in patients who had received trauma to an extremity and suffered pain which was completely out of proportion in its severity to the degree of the trauma received. It begins as a burning or stinging pain and progresses to a constant, unrelenting cutting pain. It spreads to the entire extremity and is intensified by movement. The skin is extremely tender, especially around joints, and the pain is so excruciating that patients sometimes request amputation and consider suicide. As the condition progresses, demineralization of the bone leads to severe osteoporosis and eventually the extremity becomes nonfunctional because of the severity of pain caused by movement. As a result of the condition, patients commonly develop psychological problems such as depression and anxiety.
The employee in this case developed this condition in her right leg. In addition, she suffered pain, swelling, stiffness, sweating and loss of hair on her other extremities. Characteristically the condition has been confined to the extremity trauma tized and the employee’s doctors had no explanation for her extensive symptoms although they accepted them as genuine and did not feel she was malingering.
The employee’s doctors, Dr. Charles A. Ledbetter, an orthopedist, and Dr. Warren C. Boop, Jr., a neurologist, agreed she had reached maximum healing by July 2,1982, and that her condition would progressively worsen. She then began treatments with Dr. Donald Butts, a psychiatrist, for management of the psychological side effects of her condition and petitioned the commission for a change of physicians. The administrative law judge held that her healing period ended July 2, 1982; that she had a 20% permanent partial disability to her right foot; that she was entitled to a change of physicians; that she was currently totally disabled as a result of her compensable injury and that the employer had controverted all permanent disability benefits in excess of the 20% scheduled injury to the right foot. The commission affirmed, but modified the law judge’s decision to reflect the change of physician effective as of the date of the law judge’s opinion. The employer challenges each of these holdings on appeal.
First, appellant argues that the appellee was not entitled to a change of physician to Dr. Donald Butts at the appellant’s expense because the appellee attempted to obtain a retroactive approval of a change of physician. In support of this argument, appellant relies on American Transportation Company v. Payne, 10 Ark. App. 56, 661 S.W.2d 418 (1983), in which we held that the commission did not have the authority to retroactively approve a change of physicians. Appellant contends the commission has violated the intent of that ruling even though it attempted to comply by holding the change of physician effective only after the date of the law judge’s opinion. Appellant maintains that to change physicians when the employer has selected the original physician, the claimant must follow a detailed procedure set out in the statute and that failure to do so negates the employer’s responsibility.
The record discloses, however, that it was appellant who failed to comply with the mandates of the statute. Ark. Stat. Ann. § 81-1311 (Supp. 1983) provides in pertinent part:
After being notified of an injury, the employer or insurance carrier shall deliver to the employee, in person or by certified or registered mail, return receipt requested, a copy of a notice, approved or prescribed by the Commission, which explains the employee’s rights and responsibilities concerning change of physician. If after notice of injury the employee is not furnished a copy of the aforesaid notice, the change of physician rules do not apply.
The record contains a copy of the A-29 form furnished the appellee and the motion to submit additional evidence accompanying the form states, “A copy of Commission Form A-29 and Section 11 were provided to the claimant by correspondence addressed to the claimant’s attorney, Ken Reeves, dated January 21, 1982.” Furthermore, on the line on the form itself which discloses the method of delivery to the claimant, whether personally delivered or sent by registered or certified mail return receipt requested, the words “registered or certified” and “return receipt requested” have been struck through leaving the information that “A copy of this notice has been sent by mail, to Mr. Ken Reeves, 502 N. Walnut, Harrison, AR 72601 for Mrs. Betty Villines, Compton, Arkansas 72625.” It is therefore clear that the statutory requirements were not met and that the change of physician rules did not apply.
In addition, we believe the commission erred in characterizing the treatment by Dr. Butts as a change of physicians rather than a referral. In its opinion the commission stated:
There is some indication that Dr. Ledbetter, who was treating claimant, wished to have claimant examined by Dr. Butts. However, the record also indicates that claimant was initially referred to Dr. Butts by her attorney. Therefore, we believe claimant’s treatment by Dr. Butts should be characterized as a change of physicians rather than as a referral.
Dr. Ledbetter stated in his deposition that he had referred the appellee to Dr. Butts who provided her with psychological treatment and profiling as well. We think it immaterial that appellee’s attorney also recommended Dr. Butts. We believe the record is clear that this was a referral and that the commission, although it improperly labeled it as a change of physicians, correctly approved the referral.
Next, appellant argues that the appellee was not entitled to a change of physician to Dr. Butts because he lacked the expertise and experience to treat the appellee’s condition and that such treatment is not reasonable and necessary. We do not agree. The record shows that Dr. Ledbetter and Dr. Boop both testified that by July 2,1982, the appellee had improved physically as much as she ever would and that her psychological reaction to the ominous prognosis for her physical condition was now her primary problem. We think the commission could find that as a psychiatrist, Dr. Butts is competent to treat the mental and emotional side effects of appellee’s condition, and as a medical doctor he is competent to recognize any deterioration in her physical condition which would necessitate treatment by a medical doctor.
Next, appellant argues that the commission erred by giving weight to, and considering, the findings of the administrative law judge concerning the credibility of Dr. Butts and the appellee. Appellant argues that it is impermissible for the commission to rely on the law judge’s findings in this regard rather than make its own independent findings. The opinion of the commission states that it reviewed the record de novo and that it agrees with the opinion of the law judge — not that it relies on it. In view of the decisions set out in the concurring opinion in City of Fayetteville v. Guess, 10 Ark. App. 313, 663 S.W.2d 946 (1984), it is difficult to understand why the commission does not simply state that it “finds from a preponderance of the evidence that the findings of fact made by the law judge are correct and they are, therefore, adopted by the commission.” Regardless, the commission had this case under consideration a substantial period of time and we find nothing to support a finding that it did not thoroughly review the record and arrive at its own determination of the facts.
Appellant’s next argument is that the commission erred in finding the appellee to be currently totally disabled after finding her healing period had ended and that she had sustained 20% permanent disability to the right foot. Appellant submits that this holding goes far beyond the limits of the concept of current total disability as set out in Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982), and Sunbeam Corp. v. Bates, 271 Ark. 385, 609 S.W.2d 102 (1980), and that it effectively overrules Anchor Construction Co. v. Rice, 252 Ark. 460, 479 S.W.2d 573 (1972), and repeals Ark. Stat. Ann. § 81-1313. We discussed the concept of current total disability in Bemberg Iron Works v. Martin, 12 Ark. App. 128, 671 S.W.2d 768 (1984), where we said that a claimant’s benefits for a scheduled injury were not limited to the benefits provided by Ark. Stat. Ann. § 81-1313(c) (Repl. 1976) when the scheduled injury renders the claimant totally disabled. We also stated that the fact that the total disability may not last forever is not harmful to the employer or the insurance carrier. The cases in which current total disability is awarded are those in which the commission is not quite ready to admit that a claimant will never be able to return to work. In the present case, the commission must think there is a possibility that the appellee may learn to manage her persistent pain and once again return to the job market as a productive worker. Furthermore, when viewed in the light most favorable to the findings of the commission as we are required to do, Jones v. Scheduled Skyways, Inc., 1 Ark. App. 44, 612 S.W.2d 333 (1981), we think the evidence is clearly sufficient to support a''finding that appellee is currently totally disabled.
Finally, appellant argues that the commission erred when it found the appellant had controverted all weekly benefits beyond 20% to the foot. Appellant insists that it has paid over $16,000.00 for medical bills and benefits voluntarily and that the commission’s holding that it had controverted the right of the appellee to receive all permanent benefits in excess of the 20% was error. But the record discloses that appellant contested this award from the beginning, and has consistently maintained that appellee’s healing period has ended and that her award should be based on the scheduled injury to the foot and nothing more. An award of attorney’s fees based on controversion is a fact decision which we do not reverse unless it is not supported by substantial evidence or there has been a gross abuse of discretion. See New Hampshire Ins. Co. v. Logan, 13 Ark. App. 116, 680 S.W.2d 720 (1984). We think the record supports the commission’s decision on this point.
Affirmed.
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Donald L. Corbin, Judge.
This is an appeal from a judgment entered jointly and severally against appellants Arkansas Iron and Metal Company and Wilma F. Yaffee in the amount of $538,301.84 plus interest and costs. Appellant Wybash Corporation also appeals from an in rem judgment of foreclosure entered against it. Appellants contend for reversal that (1) the court erred in refusing to grant a continuance, (2) the court erred in failing to direct a verdict for appellant Wybash Corporation, and (3) the court erred in failing to direct a verdict for appellants Arkansas Iron and Metal Company and Wilma F. Yaffee. We affirm.
This action was instituted by appellee’s filing of a complaint in equity and petition for receiver. Appellant Arkansas Iron and Metal Company subsequently filed for relief under the United States Bankruptcy Code. Appellant Yaffee answered appellee’s complaint, denying that any collateral and security claimed by appellee was significantly impaired and affirmatively pleading that the appointment of a receiver was not necessary nor an appropriate remedy. Appellant Wybash Corporation also answered, affirmatively pleading that the mortgage held by appellee upon property owned by Wybash Corporation was granted to appellee without consideration. Its answer further alleged that it received nothing from appellee in connection with the mortgage and that the granting of the mortgage to appellee without consideration was ultra vires as to Wybash Corporation and without any legal effect. Thereafter, appellant Arkansas Iron and Metal Company’s petition in bankruptcy was dismissed and the trial court issued an order naming appellee as receiver of appellant Arkansas Iron and Metal Company. A hearing was conducted and the issues addressed were whether appellee should be allowed to accelerate the total indebtedness due it and whether appellee should be allowed to foreclose its interest in certain personal and real properties. Judgment favorable to appellee was entered upon a finding that appellee’s property and security was significantly impaired and that appellants Yaffee and Arkansas Iron and Metal Company were in default and appellants appeal.
Appellant Yaffee was president of and owned 100% of the corporate stock in appellant Arkansas Iron and Metal Company and Yaffee and her three children worked in this scrap metal business. Stock in appellant Wybash Corporation was owned by appellant Yaffee and her three children. Appellant Yaffee held 62.5% of its stock while each of her children held 12.5%.
In its decree, the chancellor found that on or about July 16, 1981, appellant Yaffee, d/b/a Arkansas Iron and Metal Company, executed and delivered a promissory note to appellee in the amount of $300,000. In order to secure the note, appellants Yaffee and Arkansas Iron and Metal Company executed security agreements. To further secure payment of the indebtedness, appellant Yaffee executed, acknowledged and delivered a mortgage covering real property in Benton County, Arkansas. Appellant Wybash Corporation, to further secure the payment of the note, executed, acknowledged and delivered its mortgage on real property also located in Benton County, Arkansas. On or about October 19, 1981, appellant Yaffee, d/b/a Arkansas Iron and Metal Company, executed and delivered her promissory note to appellee in the amount of $75,000. The note was secured by certain mortgages on real property and was executed by appellants Yaffee and Wybash Corporation. It was also secured by personal property, including accounts receivable, inventory and equipment of appellant Arkansas Iron and Metal Company. On March 4,1982, appellant Yaffee executed and delivered another promissory note to appellee in the amount of $50,000. A promissory note was executed by appellant Yaffee, d/b/a Arkansas Iron and Metal Company, on August 25, 1982, in the amount of $50,000. The note was secured by appellant Yaffee’s security agreement on accounts receivable, inventory and equipment of Arkansas Iron and Metal Company. On or about June 8, 1983, appellant Yaffee executed and delivered her promissory note to appellee in the amount of $10,069. This note was secured by appellant Yaffee’s assignment of her interest in a 1981 Cadillac. The vehicle was surrendered to appellee in full satisfaction of the debt. Another promissory note was executed by appellant Yaffee, d/b/a Arkansas Iron and Metal Company to appellee in the amount of $10,000. It was secured by accounts receivable, inventory and equipment of Arkansas Iron and Metal Company. On March 31, 1983, appellant Yaffee executed her personal guarantee to appellee, guaranteeing all notes in the name of Arkansas Iron and Metal Company. On that same date, appellant Yaffee and Yaffee, d/b/a Arkansas Iron and Metal Company, executed an agreement for the assumption of indebtedness whereby Arkansas Iron and Metal Company assumed the indebtedness of the promissory note dated July 16,1981, in the amount of $300,000; the promissory note dated October 19,1981, in the amount of $75,000; the promissory note dated August 25,1982, in the amount of $50,000; the promissory note dated March 4,1982, in the amount of $50,000; and the promissory note dated November 5, 1982, in the amount of $10,000.
The chancellor further found that appellee’s property and security was significantly impaired and that appellants Yaffee and Arkansas Iron and Metal Company had failed to make payments and were in default.
In their first assignment of error, appellants contend that the trial court erred in refusing to grant a continuance because First National Bank of Fayetteville, Arkansas, was an indispensable party under ARCP Rule 19. It is well settled that a trial court is vested with broad discretion in determining whether to grant a continuance and that its determination will not be overturned by this Court unless that discretion has been manifestly abused, Odaware v. Robertson Aerial-AG, Inc., 13 Ark. App. 285, 683 S.W.2d 624 (1985). In denying appellants’ motion for a continuance, the trial court found that appellants were entitled to raise the issue at that point but that it was unnecessary for a minority stockholder to be named a party in a mortgage foreclosure.
ARCP Rule 19, which deals with compulsory joinder of parties, provides in pertinent part as follows:
(a) Persons To Be Joined If Feasible. A person who is subject to service of process shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or, (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter, impair or impede his ability to protect that interest, or, (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple or otherwise inconsistent obligations by reason of his claimed interest. If he has not been joined, the court shall order that he be made a party. If he should join as a plaintiff, but refuses to do so, he may be made a defendant; or, in a proper case, an involuntary plaintiff.
(b) Determination By Court Whenever Joinder Not Feasible. If a person as described in subdivision (a) (1) - (2) hereof cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable. The factors to be considered by the court include: (1) to what extent a judgment rendered in the person’s absence might be prejudicial to him or those already parties; (2) the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; (3) whether a judgment rendered in the person’s absence will be adequate; (4) whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.
The Reporter’s Notes to Rule 19 state that subsection (a) concerns itself with the question of who is a “necessary” party while 19 (b) deals with whether a necessary party is an “indispensable” party. It is further stated in the Reporter’s Notes that this rule abolishes the rigid distinctions between necessary and indispensable parties and instead places the emphasis upon the practical effects a judgment might have upon an absent party. For other cases construing ARCP Rule 19, see Loyd v. Keathley, 284 Ark. 391, 682 S.W.2d 739 (1985); Cox v. Stayton, 273 Ark. 298, 619 S.W.2d 617 (1981); Toney v. Haskins, 271 Ark. 190, 608 S.W.2d 28 (Ark. App. 1980).
Appellants contend that the First National Bank of Fayette-ville, Arkansas, meets the definition set out by ARCP Rule 19 and was an indispensable party to this action. They contend that if First National Bank is absent, complete relief cannot be afforded among those parties present as the Yaffee children owned an equitable interest in 37.5% of appellant Wybash Corporation. Further, it is argued that First National Bank of Fayetteville must claim an interest relating to the subject matter of the action based upon appellants’ Exhibits 1 and 2. Appellants’ Exhibits 1 and 2 reflect that the First National Bank of Fayetteville agreed to act as trustee over a trust set up for the use and benefit of the Yaffee children. A portion of the corpus of the trust was composed of each of the children’s ownership of 12.5% of the stock in appellant Wybash Corporation. Also, it is contended that disposition of the action without the bank present impaired and impeded the bank’s ability to protect its interests. Finally, appellants argue that the failure to join First National Bank of Fayetteville left appellant Yaffee at a substantial risk of incurring double, multiple or otherwise inconsistent obligations by reason of the bank’s interest. In this regard, appellant Wybash Corporation contends that, in view of the in rem judgment entered against it, appellant Yaffee was in the untenable position of facing litigation from her own children by the Trust Department of the First National Bank of Fayetteville.
We agree with the trial court’s conclusion that it was unnecessary for First National Bank of Fayetteville, trustee for minority shareholders in appellant Wybash Corporation, to be named a party in this cause of action. It is axiomatic that a shareholder is not a proper party, much less a necessary or indispensable party, in a suit to foreclose a corporate mortgage. As stated in the chapter concerning mortgages and deeds of trust in 7 W. Fletcher, Cyclopedia Of The Law Of Private Corporations § 3247 (rev. vol. 1978), the stockholders of the mortgagor are not necessary defendants in suits to foreclose corporate mortgages. Reference can also be made to 19 C.J.S. Corporations § 1203 (1940), which provides in part as follows:
Stockholders of a corporation, which is still a going concern, not only need not be joined as defendants in a suit brought to foreclose a mortgage executed by the corporation, but as a rule will not even be permitted to defend in their individual capacity.
A corporation is a legal entity which, being distinct from its members, owns the corporate property and owes the corporate debts, is the creditor to sue or the debtor to be sued, has perpetual existence, and can act only through its duly constituted organs, primarily its board of directors. H. Henn, Laws Of Corporations And Other Business Enterprises § 78 (3d ed. 1983) (emphasis ours). As stated in Red Bud Realty Co. v. South, 96 Ark. 281, 291, 131 S.W. 340, 344 (1910), “A stockholder does not acquire any estate in the property of a corporation by virtue of his stock; the full legal and equitable title thereto is in the corporation, . . .” It is also worthy of note that ARCP Rule 4(d) (5) provides that service of a summons and complaint upon a domestic corporation is accomplished by delivering it to an officer. Accordingly, we hold that the trial court did not abuse its discretion in refusing to grant appellants’ motion for a continuance on the basis that First National Bank of Fayetteville was an indispensable party. Appellant Wybash Corporation was a party to this action and was the proper party to be sued, not its shareholders or their trustee.
Appellants’ second argument on appeal concerns the trial court’s failure to direct a verdict for appellant Wybash Corporation. They argued below that there was no evidence that appellant Wybash Corporation received any consideration for the execution of two mortgages and moved for a directed verdict at the end of appellee’s case. Ark. Stat. Ann. § 64-801 (Repl. 1980), provides in pertinent part:
Mortgage of corporate assets — Corporate borrowings. — In authorizing—
(a) the procurement of corporate loans, the creation of obligations under which the corporation is to be primarily or secondarily liable, and the issuance of corporate notes, bonds and other obligations, and
(b) the mortgage and pledge of all or any part of the corporate assets (including after-acquired property) as security for any obligation(s) so incurred,
the board of directors shall not be required to procure any consent from, or authorization by, the shareholders, except in the instance of the increase of bonded indebtedness of the corporation. . . .
The Arkansas Supreme Court in Quattlebaum and CBM v. Gray, 252 Ark. 610, 480 S.W.2d 339 (1972), held that in order for a note to be valid, consideration does not have to move to a party promising, but may move from a promisor to a third person, ánd consideration may consist of a loan to a third person. In Quattlebaum, the appellant also raised the issue of “failure of consideration”. The Court found this defense was without merit. It quoted from Rockafellow v. Peay, 40 Ark. 69, 73 (1882), wherein it was stated:
“It is 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 $4,000 to John C. Peay.”
See also Hays v. McGuirt, 186 Ark. 702, 55 S.W.2d 76 (1932).
The resolution of this issue turns on whether appellant Yaffee was empowered to execute mortgages on behalf of appellant Wybash Corporation. In denying appellants’ motion for directed verdict, the trial court properly relied upon a resolution of appellant Wybash Corporation which gave apparent authority to its president, appellant Wilma Yaffee, to negotiate and procure loans from appellee, to give security for any liabilities of the corporation by pledge, assignment or lien, and to execute instruments for those purposes. There were other issues raised in this regard by appellants but we cannot consider them as they are raised for the first time on appeal. We find no merit to this assignment of error.
For their final point for reversal, appellants contend that the trial court erred in failing to direct a verdict for appellants on the issue of accord and satisfaction because appellee failed to comply with the trial court’s liquidation order of June 11, 1984. As appellee readily points out, accord and satisfaction is an affirmative defense and must be specifically pled. ARCP Rule 8(c). In the case at bar the record reflects that accord and satisfaction was not pled by appellants. It was raised by appellants for the first time at trial when they moved for a directed verdict. In any event, this argument is without merit as the mere receipt of property by a receiver under a court order does not constitute accord and satisfaction nor can it be considered a compulsory disposition of collateral under the Uniform Commercial Code. We agree with appellee that Ark. Stat. Ann. § 85-9-505(2) (Add. 1961), which appellants rely upon, does not apply to the facts of this case. It is clear from the Committee Comments following § 85-9-101 that this article, covering secured transactions, does not apply to real property or the creation of a real estate mortgage. This article instead provides for the regulation of security interests in personal property and fixtures.
For the reasons stated above we affirm the decision of the trial court.
Affirmed.
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James R. Cooper, Judge.
In this unemployment compensation case, the appellant was denied benefits by the Appeal Tribunal under Ark. Stat. Ann. Section 81-1106 (Supp. 1983) on a finding that she voluntarily quit her last work without good cause connected with the work. The Board of Review, which adopted the Appeal Tribunal’s decision, found that the appellant had failed to demonstrate that her marital difficulties qualified as “a personal emergency of such nature and compelling urgency that it would be contrary to good conscience to impose a disqualification.” On appeal, the appellant contends that the Board’s decision is not supported by substantial evidence. We agree with the appellant, and reverse.
Section 81-1106(a) provides, in pertinent part:
[A] n individual shall be disqualified for benefits:. . . If he voluntarily and without good cause connected with the work, left his last work. . . Provided no individual shall be disqualified under this subsection if, after making reasonable efforts to preserve his job rights, he left his last work due to a personal emergency of such nature and compelling urgency that it would be contrary to good conscience to impose a disqualification. . . (emphasis added).
At the hearing before the Appeal Tribunal, the appellant, who was the only witness to testify, stated that she had been physically abused by her husband. She testified that the abuse had continued for'some time, but that it had gotten worse in the five or six months prior to her quitting her job, and that, about a week before she quit, he had threatened her with a knife and a Coke bottle. She further testified that she and her husband argued on July 11,1984, the night before she quit, that she called the police, and her husband threw her out of the house. She sought temporary shelter with a friend, but she was only able to stay there for a few days. She testified that she had been forced to leave town on a number of occasions prior to the incident on July 11 in order to allow her husband time to cool down. She also testified that her employer, who was not present at the hearing, had given her a four-day leave of absence in May, 1984, to try to work out her difficulties, requesting that she return at the end of that time to see if things improved. She did return after that leave of absence, but her marital condition continued to deteriorate. The appellant testified that the police had informed her that they could not help her and that she was unable to afford a lawyer to help her obtain a divorce. She also stated that she had tried unsuccessfully to find an apartment or house in Camden which she could afford on her own.
The Board found that such marital difficulties did not constitute a “personal emergency” as contemplated by the Act. We are aware that this Court must affirm the Board’s decision if it is supported by substantial evidence. Woods v. Employment Security Division, 269 Ark. 613, 599 S.W.2d 435 (Ark. App. 1980). In the case at bar, we cannot find substantial evidence to support the Board’s decision. While the appellant’s testimony, though she was the only witness, cannot be taken as uncontradicted or undisputed, it cannot be arbitrarily disregarded; there must be some basis for disbelieving it. Timms v. Everett, 6 Ark. App. 163, 639 S.W.2d 368 (1982).
The appellant’s testimony clearly shows that her physical safety was jeopardized by being in close proximity to her husband; he had threatened her repeatedly, and she had been forced out of her home. It is equally clear that she believed, reasonably it appears, that the police would not help her and that she could not afford legal assistance. She had been unable to find another place to live in Camden which was within her financial means. Threats of physical abuse and ejection from one’s home, sufficient to cause the appellant to seek shelter with others, clearly constitute a “personal emergency” under the Act.
While we have not previously decided whether this type of “domestic situation” can constitute a “personal emergency” sufficient to prevent disqualification from unemployment compensation benefits, other states have, in construing similar provisions, determined that such situations, when they jeopardize the well-being of the claimant, constitute such an emergency. See Bacon v. Board of Review, _ Pa. Commw. _, 491 A.2d 944 (1985). We agree with the reasoning in that case and hold that the Board erred in its finding that the appellant’s situation did not constitute “a personal emergency of such nature that it would be contrary to good conscience to impose a disqualification.”
However, that determination does not necessarily qualify the appellant for benefits. Not only must her situation constitute a “personal emergency,” she must have also made “reasonable efforts to preserve her job rights.” Ark. Stat. Ann. Section 81-1106(a). The Board did not address this issue, nor did the Appeal Tribunal. Because those agencies decided the case on the ground there was a lack of a compelling “personal emergency,” it was not necessary for them to address this second point.
Therefore, since we find that there is no substantial evidence to support the Board’s finding that the appellant’s domestic situation did not constitute such a “personal emergency” as contemplated under the Act, we reverse; but, since the appellant must also demonstrate that she made reasonable efforts to preserve her job rights, we remand to the Board for further proceedings in accordance with this opinion.
Reversed and remanded.
Cloninger and Corbin, JJ., agree. | [
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Donald L. Corbin, Judge.
Appellees, Loyd V. Stancel and Doris L. Stancel, were issued a homeowners insurance policy by appellant, Metropolitan Property and Liability Insurance Company, which was in force on June 15, 1982, providing coverage against loss by fire for appellees’ dwelling in the amount of $90,000, personal property in the amount of $45,000 and additional expenses in the amount of $22,500. It was stipulated at trial that the insured dwelling and contents were totally destroyed by fire. Appellant denied coverage based upon misrepresentation in the application for insurance and appellees filed suit for $ 136,000 ($90,000 for dwelling coverage, $45,000 for personal property coverage and additional expenses in the amount of $1,000), 12% penalty, attorneys’ fees and 10% per annum interest from the date of claim.
The jury rendered a verdict in favor of appellees in the amount of $136,000. The trial court then awarded the 12% statutory penalty, attorneys’ fees of $26,250 and prejudgment interest on $ 135,000 of the verdict amount from the date of loss at the rate of 6% per annum. We affirm as modified.
Appellant, in its first point for reversal, alleges that the trial court erred in refusing, as a matter of law, to reduce the jury verdict by $100, which represents the deductible amount pursuant to the insurance policy in question under coverages A and C.
The loss of insured real property and personal property is involved here. Thurston Nat’l Ins. Co. v. Dowling, 259 Ark. 597, 535 S.W.2d 63 (1976), clearly dictates the result to be reached under the facts of the instant case as it relates to the loss of the real property. In Thurston, supra, appellant Thurston National Insurance Company issued a fire insurance policy to appellee George W. Dowling which covered a dwelling house owned by appellee. The face amount of the policy was $8,000, and it contained a $50 deductible provision. The house was totally destroyed by fire and suit was filed by appellee to recover the sum of $8,000, plus statutory penalty, interest and attorneys’ fees. Appellant admitted liability to the extent of $7,950 by reason of the fire loss, but denied that it was liable to appellee for penalty, interest and attorneys’ fees for the reason that appellee had at all times demanded the sum of $8,000. The trial court entered summary judgment in favor of appellee, holding that the $50 deductible provision in appellant’s policy of insurance was void as being contrary to and in violation of the Arkansas Valued Policy Law. The court, under the provisions of Ark. Stat. Ann. § 66-3238 (Repl. 1980) awarded penalty, interest and attorneys’ fees.
Justice Elsijane T. Roy, writing for a majority in Thurston, supra, noted that appellant’s position was that the full amount of the policy was $7,950 after being reduced by the $50 deductible and that the deductible provision, therefore, diminished the actual amount of recovery to an amount less than “the full amount stated in the policy.” This is basically the same argument raised by appellant in the instant case. Ark. Stat. Ann. § 66-3901 (Repl. 1980), commonly referred to as the Valued Policy Law, provides:
A fire insurance policy, in case of a total loss by fire of the property insured, shall be held and considered to be liquidated demand and against the company taking such risk, for the full amount stated in said policy, or the full amount upon which the company charges, collects or receives a premium; provided, the provisions of this section shall not apply to personal property, (emphasis supplied)
Justice Roy, in reliance on this provision and other case law, affirmed the trial judge, stating, “Our cases hold that when a total loss is involved a clause which diminishes recovery to less than the full amount stated in the policy is void.” The rule in Thurston is dispositive when applied to the facts of the instant case concerning the loss of real property. It is not clear whether Thurston, supra, applies only to loss of real property or to loss of personal property as well. The Valued Policy Law was the basis for the rule in Thurston and that statute, as cited earlier, specifically excludes personal property from its coverage. Neither party has cited a case which extends the rule in Thurston to personal property. There may be valid policy reasons for extending that rule to cover loss of personal property when it is coupled with a loss of real property. In this case, however, there are other grounds on which we may decide this issue.
The policy, which included the deductible provision, was introduced into evidence. Appellant did not plead the deductible as a setoff, but did argue to the jury that it was entitled to a setoff. In its written order denying appellant’s motion for Judgment N.O.V., the trial court stated as follows:
[T]he policy was introduced into evidence with the declarations, the portion of the policy showing the $100.00 deductible provision, and same was available for consideration by the jury . . . Defendant argued in its closing argument that it was entitled to credit for the $100.00 deductible against the amount claimed by Plaintiffs. Also, the Court must consider that the case was presented to the jury on a general verdict requiring only one verdict and no request was made of the jury to itemize or set out its specific award as to each element of coverage. Further, the Plaintiffs proved additional living expenses in an amount, approximating $7,400.00, but only requested that the jury return a verdict of $ 136,000.00. This would have given the jury ample opportunity to consider the $ 100.00 deductible, but still grant the $136,000.00 judgment as requested by Plaintiffs.
The case went to the jury on a general verdict, and appellant made no post-trial effort to determine whether the jury considered the deductible amount. It is evident that the jury considered the contract provision on the deductible, and we believe there is substantial evidence to support its award of $136,000.
It appears from the record that appellant waived for purposes of appeal the issue of reduction of the verdict by $ 100 by its failure to make a motion for a directed verdict, stating specific grounds therefor, either at the close of appellees’ evidence or at the conclusion of the case. Sanson v. Pullum, 273 Ark. 325, 619 S.W.2d 641 (1981); Dodson Creek, Inc. v. Fred Walton Rlty., 2 Ark. App. 128, 620 S.W.2d 947 (1981). Accordingly, we find no error in the trial court’s refusal to reduce the jury verdict by the amount of the deductible. The matter was properly submitted to the jury for its determination and there is substantial evidence to support its award.
In its second point for reversal, appellant alleges that the trial court erred in awarding prejudgment interest. Appellant asserts that the damages sustained by appellees could not be ascertained at the time of the loss. The trial court found that $135,000 of the $136,000 of damages was capable of being ascertained at the date of the loss and awarded prejudgment interest on $135,000.
In Toney v. Haskins, 7 Ark. App. 98, 644 S.W.2d 622 (1983), we held that if there is a method of determination in both time and amount of the value of the property at the time of the injury then prejudgment interest should be allowed. In the case at bar, the principal sum demanded in appellee’s complaint, i.e., real estate and its contents, was readily calculable as of the date of loss and, therefore, subject to prejudgment interest under Lovell v. Marianna Fed. S&L Assn., 267 Ark. 164, 589 S.W.2d 577 (1979), and Toney, supra. The trial court here apparently did not award prejudgment interest on the $1,000 attributable to additional living expenses because these expenses were not capable of determination in both time and amount at the time of loss. The court properly awarded prejudgment interest on $135,000 which represented the face amount of the policy coverage on the home ($90,000) and its contents ($45,000).
Appellant also argues, in the alternative, that the trial court erred in calculating prejudgment interest from the date of loss and that the trial court should have awarded prejudgment interest calculated from sixty (60) days after proof of loss was received by appellant. In their original complaint appellees prayed for “interest from date of claim at 10% per annum” and in their amended complaint appellees prayed for “statutory penalty, attorneys’ fees, interest, and costs” generally. Appellees concede that, under the terms of the policy, prejudgment interest should be calculated from October 27, 1982 (60 days after proof of loss was received by appellant) to May 22, 1984 (the date of judgment). That amount is $12,715.52, a reduction of $2,974.11 from the trial court’s award for prejudgment interest.
Appellant asserts that appellees should not be awarded penalty, interest and attorneys’ fees under Ark. Stat. Ann. § 66-3268 because appellees did not recover the exact amount prayed for in their complaint. We find this argument to be without merit. Appellees did not pray for interest from date of loss in their original complaint nor in their amended complaint.
The judgment of the trial court is affirmed with a modification of the award of prejudgment interest to show a reduction of $2,974.11 (the difference between interest calculated from the date of loss and sixty (60) days after proof of loss was received by appellant).
Affirmed as modified.
Cooper and Glaze, JJ., agree. | [
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James R. Cooper, Judge.
In this non-jury criminal case, the appellant was convicted of driving while intoxicated, second offense. He was fined $750.00 and sentenced to six months in jail, with all but seven jiays of the sentence suspended on the condition that the appellant complete a D.W.I. school course and commit no alcohol-related offenses within six months following his conviction. His driver’s license was suspended for one year. From that decision, comes this appeal.
On September 9, 1984, the appellant was arrested by Arkansas State Trooper Larry Mitchell. Trooper Mitchell testified that, when he arrived at the scene of an accident, Trooper Gifford already had the appellant in his car. Trooper Mitchell testified that he put the appellant in his car and read him his Miranda rights at 11:06 A.M., after which time the appellant signed a waiver of those rights. The trooper testified that he then asked the appellant several questions at 11:16 A.M., which were answered as follows:
Mr. Bryant, is the Blue Volkswagen in the ditch license plate number Lincoln, Robert, Charles 761, on highway 167, yours, he answered yes, it is; were you driving the vehicle when it went into the ditch, he answered, yes, I was; have you had anything to drink since driving off into the ditch, no, sir; how much have you had to drink . . . how much had you had to drink before the accident, he said, maybe half a pint.
Trooper Mitchell then testified that he transported the appellant to the Searcy Police Department where the appellant executed another waiver of rights form. He stated that the appellant told him that he understood those rights and then the appellant signed the form. The appellant agreed to take the breathalyzer test, and it was administered at 11:57 A.M., at which time his blood-alcohol level registered 0.28 percent. Trooper Mitchell testified that the appellant had nothing to drink for at least forty-five minutes prior to taking the test. He further stated that there was a fifth of whiskey in the car which was about half empty.
The appellant’s first contention on appeal is that the trial court erred in finding that he voluntarily, knowingly, and intelligently waived his Miranda rights. The appellant contends that the breathalyzer test results show that he was too intoxicated to have voluntarily, knowingly, and intelligently waived his rights against self-incrimination. While the State has the burden of proving, by a preponderance of the evidence, the voluntariness of a custodial confession, any conflict in the testimony of the witnesses is for the trial court, as factfinder, to resolve. State v. Graham, 277 Ark. 465, 642 S.W.2d 880 (1982). Although this Court is required to make an independent determination, based on the totality of the circumstances with all doubts resolved in favor of individual rights, .of whether the accused voluntarily, knowingly, and intelligently waived his rights, we will not reverse the trial court unless its determination is clearly erroneous. Id. There is no question but that the appellant was entitled to be given his Miranda rights, see Berkemer v. McCarty, — U.S -, 104 S.Ct. 3148 (1984), and the appellant acknowledges that those rights were given him.
The question, then, is whether the trial court was correct in holding that the appellant was not too intoxicated to have voluntarily, knowingly, and intelligently waived his rights. The mere fact that he had been drinking at the time of his confession will not, of itself, invalidate his subsequent confession. Recent drinking does not make the confession inadmissible, but only goes to the weight to be accorded it. Kennedy v. State, 255 Ark. 163, 499 S.W.2d 842 (1973). “ ‘The test is whether he had sufficient mental capacity at the time of giving his statement to know what he was saying to have voluntarily intended it.’ ” Id. at 173 (quoting Commonwealth v. Smith, 447 Pa. 457, 291 A.2d 103 (1972)); Johnson v. State, 6 Ark. App. 342, 642 S.W.2d 324 (1982). “ ‘ “[I]f it is shown that the accused was intoxicated to the degree of mania, or of being unable to understand the meaning of his statement, then the confession is inadmissible.” ’ ” Kennedy, 255 Ark. at 174 (quoting Longuest v. State, 495 P.2d 575 (Wyo. 1972) (quoting People v. Schombert, 19 N.Y.2d 300, 226 N.E.2d 305, 279 N.Y.S.2d 515, (1967))).
In the case at bar Trooper Mitchell, who read the appellant his rights, testified that, although the appellant was very intoxicated, he was not in a stupor and that he responded intelligently to questions. The trooper testified that, at the time of the arrest, the appellant had a very strong odor of alcohol about him; he was unsteady on his feet; and his speech was very slurred. However, the trooper testified that the appellant appeared to understand what was going on when he read him his rights; he was able to understand and follow the instructions he was given pursuant to his arrest; and that the appellant had no problems following the step-by-step procedure required of him by the officer conducting the breathalyzer test. While the appellant testified that he could only remember bits and pieces of the questioning, it was for the trial court to determine the credibility of the witnesses, and the court is not required to give the appellant’s testimony greater weight than that of the police officer. Altes v. State, 286 Ark. 94, 689 S.W.2d 541 (1985).
In effect, the appellant is asking that this Court hold that a person whose blood-alcohol level is above a certain percentage is unable, as a matter of law, to voluntarily, knowingly, and intelligently waive his Fifth Amendment rights. We decline to do so. We have not found, nor has counsel cited to us, any state which has set such a mandatory cutoff. See Annot., 25 A.L.R.4th 419, Section 8[e] (1983). The courts look at all circumstances, including the defendant’s blood-alcohol level, to determine if the accused was too intoxicated to waive his rights, noting that different individuals have differing tolerances and abilities to control the effects of alcohol. Id. In one case, the Arizona Supreme Court refused to hold an accused’s confession involuntary merely because he had a blood-alcohol level of 0.46 percent, as there was other evidence which indicated that he knew what he was doing. See Arredondo v. State, 111 Ariz. 141, 526 P.2d 163 (1974).Inthecaseatbarthetrooper’stestimony, as well as that of Officer Marvin Harris, who administered the breathalyzer test, amply supports the trial court’s ruling that the appellant did voluntarily, knowingly, and intelligently waive his rights, and therefore, the confession was admissible.
The appellant next contends that the evidence was insufficient to sustain his conviction because there is no independent evidence that the offense of D.W.I. was committed. In criminal cases, we view the evidence in the light most favorable to the appellee, and where we find substantial evidence to support the verdict, we must affirm. Fountain v. State, 273 Ark. 457, 620 S.W.2d 936 (1981). In order for the appellant’s conviction to stand, his out-of-court confession must be accompanied by other proof that the offense was committed. Ark. Stat. Ann. Section 43-2115 (Repl. 1977). This corroborating evidence need not be sufficient to sustain a conviction. Sawyer v. State, 284 Ark. 26, 678 S.W.2d 367 (1984).
Here the appellant admitted in court that the car was his and that he was driving the vehicle when it became stuck in the ditch. Trooper Mitchell testified that, when he arrived, the appellant was intoxicated. He further stated that he found a half-empty bottle of whiskey in the appellant’s car. While the appellant testified at trial that he had done all his drinking, with the exception of a few drinks the night before, after the accident, the trial court was not required to believe his testimony. Altes, supra. In Altes, the defendant contended, as does the appellant here, that all his drinking was done subsequent to driving into the ditch and, unlike the case at bar, the defendant in Altes never made a confession to the police. In both Altes, and Azbill v. State, 285 Ark. 98, 685 S.W.2d 162 (1985), the Arkansas Supreme Court found that evidence that the defendant had driven the vehicle into the ditch and, when discovered by the police, was standing by the vehicle in an intoxicated condition, was sufficient to sustain a conviction for D.W.I. Likewise, we find the evidence in the case at bar sufficient to sustain the appellant’s conviction, and we also find it sufficient to corroborate his out-of-court confession.
The appellant’s last point on appeal is that the trial court erred in admitting a certified court copy of a prior conviction for D.W.I. In Sherwood Municipal Court which, according to counsel, stated that the appellant had “waived counsel”. The appellant, however, in his opening brief, failed to abstract the copy of the prior conviction. He attempted to remedy Thisldefect by prbviding a supplemental abstract of the copjón-hfe^-" replybfief.lt is a settled rule that an appellant mayjnotremedy deficiencies in his abstract in a reply brief. Smith v. State, 278 Ark. 462, 648 S.W.2d 792 (1983), cert. denied 464 U.S. 890, 104 S.Ct. 232 (1983); Weston v. Ponder, 263 Ark. 370, 565 S.W.2d 31 (1978). However, even -if the supplemental abstract were part of the original bngffit would still be deficient because itfailsto-sej. forth thg^copyof the prior conviction alleged to have been"
erroneously admitted. While we could affirm on this point alone, we feel that, upon examination of the record, the copy of the conviction is sufficient to show waiver of counsel because it is a certified part of the court record. See Peters v. State, 286 Ark. 421, 692 S.W.2d 243 (1985); Williford v. State, 284 Ark. 449, 683 S.W.2d 228 (1985).
We find no merit in any of the points raised for reversal, and therefore, we affirm.
Affirmed.
Corbin and Glaze, JJ., agree. | [
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Melvin Mayfield, Judge.
This is an appeal from a decision of the Workers’ Compensation Commission. In September 1983 the claimant sustained a compensable injury to her back and, after being treated by doctors selected by the employer, the claimant requested a change of physicians to one of her own choice. The employer agreed to this request and the commission entered an order dated March 22,1984, allowing a change to Dr. James Rodney Feild of Memphis, Tennessee.
After claimant had seen Dr. Feild on five or six occasions, he released her to go back to work. She testified that he did nothing for her except give her pain pills; that she told him she was losing the feeling in her legs but he said she should exercise more. She testified that she was not satisfied with his treatment and told him she would not be back.
When Dr. Feild released the claimant he wrote a letter to her employer stating there was no anatomical foundation for her continued disability and if she did not return to work in two weeks the company should consider permanently replacing her. He also enclosed a report containing his impression that she was malingering. The claimant returned to work in early May 1984 but testified that after a day and a half, her legs started hurting so badly she could not continue. She was examined by the company doctor who said she had not exercised the leg muscles enough and who advised her, as Dr. Feild had, to exercise more. Claimant then went to the company nurse for help and was told that she could not return to Dr. Feild because he had released her and that she would have to consult her own physician at her own expense.
On the advice of a friend, claimant saw a Dr. McCollum who referred her to Dr. Gary Kellett in Memphis. Dr. Kellett saw her on May 8,1984, admitted her to a hospital, and after a body scan and a myelogram, diagnosed a bulging disc and treated her by injecting her back. Claimant had been pain free from that time until the date of the hearing before the administrative law judge on June 19, 1984. She had not returned to work because Dr. Kellett had not released her to do so, but she was performing exercises he recommended and was scheduled to see him again in August 1984. The law judge held that the employer was responsible for the medical treatment the claimant was required to obtain on her own behalf. The full commission affirmed, adopting the opinion of the law judge as its own.
On appeal, the employer argues that the commission erred in interpreting the controlling statute, see Ark. Stat. Ann. § 81-1311 (Supp. 1985), to allow the claimant to change physicians a second time since the statute provides that where the employer selects a physician the claimant may petition for a change of physicians “one time only.” Under the circumstances involved in this case, we do not agree.
The law judge’s opinion pointed out that the first paragraph of section 81-1311, supra, requires that the employer shall promptly provide medical services for an injured employee and if this is not done within a reasonable time, the commission may direct that the injured employee obtain the services at the expense of the employer. The law judge’s opinion then stated:
The pivotal issue in this claim involves the employer’s refusal to allow claimant to receive medical treatment from the doctor to whom she was granted a change of physicians by the consent order of March 22,1984. When Sanyo refused to allow claimant to be examined by Dr. Feild, the rules for changing physicians ceased to apply since respondents at that time failed to provide medical treatment for the claimant. . . .
Merely because Dr. Feild had released claimant to return to work does not mean that claimant did not need additional medical treatment. . . .
... It is simply an untenable situation for an employer to deny a claimant ordered medical treatment and then state that she must follow the rules for changing physicians.
Neither party has cited a single case in its brief on appeal. The issue of the right to change physicians, however, has been involved in a number of workers’ compensation cases. In Emerson Electric Co. v. White, 262 Ark. 376, 557 S.W.2d 189 (1977), the Arkansas Supreme Court said, “We have recognized the commission’s discretionary authority to approve such changes retroactively,” and cited Southwestern Bell Tel. Co. v. Brown, 256 Ark. 54, 505 S.W.2d 207 (1974), and Caldwell v. Vestal, 237 Ark. 142, 371 S.W.2d 836 (1963). In the Caldwell case the court pointed outthatArk. Stat. Ann. § 81-1311 (Repl. 1960), in effect at that time, provided that “the Commission may order a change of physicians at the expense of the employer when, in its discretion, such change is deemed necessary or desirable.” But the court stated:
We believe that this provision was inserted in the statute to anticipate any possible doubt about the power of the commission to order a change of physicians. It should not be regarded as establishing an exclusive method of procedure, for, as a practical matter, an injured employee ordinarily has no lawyer and is not in a position to apply to the commission for a change of physicians. To construe a statute as narrowly as the appellees would have us do would convert this provision from a remedial measure designed to help the workman into a punitive measure designed to hurt him.
Through the years the statute has been changed. This court has recently pointed out that Act 290 of 1981 deleted the provision in Ark. Stat. Ann. § 81-1311 giving the commission discretion to order a change of physicians when it was deemed necessary or desirable and substituted a detailed procedure to be followed when an employee desires a change of physicians. See American Transportation Co. v. Payne, 10 Ark. App. 56, 661 S.W.2d 418 (1983), and Continental Grain Co. v. Miller, 9 Ark. App. 317, 659 S.W.2d 517 (1983).
Nevertheless, in Moro, Inc. v. Davis, 6 Ark. App. 92, 638 S.W.2d 694 (1982), we affirmed the commission in holding that the appellant’s adjuster had led the appellee to believe, even though mistakenly, that he could be examined by a physician of his choice. We said this was within the fact-finding province of the commission and “we are unable to say it erred or that it abused its discretion in the retroactive approval of the change.” Although section 81-1311, in effect at that time, still contained the language giving the commission authority to order a change of physicians at the employer’s expense “when, in its discretion, such change is deemed necessary or desirable,” the court relied upon Emerson Electric Co. v. White as authority for its holding. As we have seen, Emerson Electric relied in part upon Caldwell v. Vestal which indicated that the commission had some inherent discretion to order a change of physicians in addition to the discretion expressly stated in the statute. In view of circumstances that can be imagined, we are not prepared to hold that the commission has no inherent discretion in this respect although it surely has been narrowed by legislative action through the years.
Regardless of the rationale for the holding in Moro, Inc. v. Davis, whether inherent discretion or waiver or estoppel, we think it is authority to support the reasoning set out in the law judge’s opinion and adopted by the commission in the instant case. Certainly, for the appellant to refuse ordered medical treatment to the claimant and then seek to limit the claimant’s treatment to the very doctor which it refused to allow her to see, is an untenable position. Although the appellant argues that the claimant did not want to go back to Dr. Feild, the claimant’s testimony was: “Not if I didn’t have to.” In any event, she was told by a representative of her employer that she could not go back to see Dr. Feild. The commission found that she needed additional medical treatment and, since the employer failed to provide it, that the employer was responsible for the treatment the claimant had to obtain on her own behalf.
We are committed to a liberal construction of the Workers’ Compensation Law and to the rule that it should be interpreted in favor of the claimant when there is doubt as to its meaning. See Central Maloney, Inc. v. York, 10 Ark. App. 254, 663 S.W.2d 196 (1984). We find no error in the commission’s interpretation and application of the law in this case.
The appellant also argues that there is no substantial evidence to support the commission’s award of temporary total disability from the date the claimant first saw Dr. Kellett on May 8, 1984, to continue through a date yet to be determined. We think, however, that the evidence is clearly substantial to support that award also.
Affirmed.
Cracraft, C.J., and Cloninger, J., agree. | [
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Donald L. Corbin, Judge.
The facts of this case are not in dispute. William Rose, an Arkansas State Trooper, was killed in the line of duty on December 28,1982. Appellant, his widow, was paid a $50,000 benefit under the Public Safety Officers’ Death Benefits Act, 42 U.S.C. § 3796 (1982). She also received an award of $10,000 pursuant to Ark. Stat. Ann. § 12-2348 (Repl. 1979) and an additional award of $5,000 pursuant to Ark. Stat. Ann. § 42-427 (Repl. 1977). Appellee, Public Employee Claims Division, Arkansas Insurance Department, acknowledges that the claim for death benefits is compensable under the Workers’ Compensation Act but contends that it is entitled to a credit against its liability to the extent of the three death benefits totaling $65,000 received by the widow. The Commission reversed the decision of the Administrative Law Judge who refused to credit the $65,000 against workers’ compensation benefits. The Commission relied on Ark. Stat. Ann. § 12-3605(G) (Supp. 1985), which provides:
(G) In the event that any public employee who is entitled to receive workers’ compensation benefits under the provisions of this Act, as a result of injury, disability or death, and such injuries, disabilities, or death gives rise to an entitlement of benefits under a State or Federal program or under an Act of Congress providing benefits for public safety officers serving a public agency in an official capacity, with or without compensation, as a law enforcement officer or as a firefighter or in any other capacity, the state workers’ compensation funds shall be entitled to a credit against its liability for payment of workers’ compensation benefits to the extent of the benefits received under any State or Federal program or Act of Congress.
The Commission granted appellee a credit of $65,000 against death benefits under the Arkansas Workers’ Compensation Act. We affirm.
Appellant, as her first assignment of error, alleges that the Full Commission erred in holding that Act 929 of 1981, Ark. Stat. Ann. § 12-3605(G), was not superseded by the Public Safety Officers’ Death Benefits Act under the Supremacy Clause, U.S. Const, art. VI, § 2. Appellant relies on the following pertinent provision of the Public Safety Officers’ Death Benefits Act:
(a) In any case in which the Administration determines, . . ., that a public safety officer has died as the direct and proximate result of a personal injury sustained in the line of duty, the Administration shall pay a benefit of $50,000.00 ... to the surviving spouse of such officer; (and)
(e) the benefit payable under this subchapter shall be in addition to any other benefit that may be due from any other source . . .
This section, together with the Supremacy Clause, appellant argues, circumvents the limiting effects of Ark. Stat. Ann. § 12-3605(G).
It is axiomatic that under the terms of the United States Constitution, certain powers are entrusted to the federal government alone, while others are reserved to the states, and still others may be exercised concurrently by both the federal and state governments. The 10th Amendment to the United States Constitution provides:
Rights reserved to states or people. — The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
U.S. Const, amend. X.
The constitutionality of an offset between federal benefits and state benefits was recognized in Richardson v. Belcher, 404 U.S. 78 (1971). Mr. Justice Stewart, in upholding Section 224 of the Social Security Act, 42 U.S.C. § 424a (1982), which requires a reduction in social security benefits to reflect workers’ compensation benefits, noted that:
The original purpose of state workmen’s compensation laws was to satisfy a need inadequately met by private insurance or tort claim awards. Congress could rationally conclude that this need should continue to be met primarily by the States, and that a federal program that began to duplicate the efforts of the States might lead to the gradual weakening or atrophy of the state programs.
Id. at 84.
Congress has not shown a clear-cut manifestation of an intent to exercise supremacy over a state’s right to legislate workers’ compensation benefits by the passage of the Public Safety Officers’ Death Benefits Act. We fail to see a supremacy clause argument. This is especially true when similar cases dealing with federal-state setoffs have been upheld constitutionally.
Finally, appellant alleges that the Full Commission erred in construing Act 929 of 19 81 to require crediting of benefits paid by Arkansas Claims Commission and Arkansas State Police against appellee’s liability to appellant. Appellant received a $10,000 benefit from the Arkansas Claims Commission pursuant to Ark. Stat. Ann. § 12-2348, and $5,000 from the Arkansas State Police pursuant to Ark. Stat. Ann. § 42-427, following a determination that Trooper Rose lost his life in the line of duty.
“The controlling consideration in the interpretation of a workmen’s compensation statute is that the act must be liberally construed with all doubts resolved in favor of the claimant, which is necessary to effect the beneficient and humane purposes of the Act,” Mohawk Rubber Co. v. Buford, 259 Ark. 614, 535 S.W.2d 819 (1976). However, we can not avoid the crystal clear language of Ark. Stat. Ann. § 12-3605(G) which mandates the crediting of “benefits received under any State or Federal Program or any Act of Congress” against workers’ compensation benefits. It is obvious from a review of cases from other states that this is not an unknown or unheard-of proposition. Nooe v. Baltimore, 28 Md. App. 348, 345 A.2d 134 (1974), (applied Maryland statute which discharged city’s obligation under workers’ compensation law where employee received benefits, in excess of those due under workers’ compensation law, from the employer under a city ordinance); Coletta v. State, 106 R.I. 764, 263 A.2d 681 (1970), (held that statute authorized the state to credit payments received from the federal government against benefits due under workers’ compensation law); State v. Industrial Commission, 160 Ohio St. 443, 117 N.E.2d 22 (1954), (held that the Ohio General Assembly had power to enact Workers’ Compensation Act and to determine under what terms and conditions employees are eligible to participate). Legislation in other states providing for offset of workers’ compensation benefits against benefits available under other state or federal programs has been strictly construed. In Contois v. State, 95 R.I. 296, 186 A.2d 741 (1962), Roland Contois’s widow and minor children applied for workers’ compensation benefits in Rhode Island after Roland Contois died while on active duty in the Rhode Island National Guard. The Rhode Island Workers’ Compensation Commission sought to offset workers’ compensation benefits with benefits accruing under a federal act.
R.I. Gen. Laws § 28-31-11 (1968 Reenactment) provides:
Where an injured member of the national guard or the Rhode Island state guard receives pay, subsistence, hospitalization, or other benefits from the United States as the result of such injury, such payments shall not affect his right to receive compensation under chapters 29 to 38, inclusive, of this title. When the payments received from the United States are less than he would have been entitled to receive under said chapters, then he shall be entitled to receive all the benefits to which he would have been entitled under said chapters less the benefits actually received from the United States.
The Rhode Island Supreme Court held that since provision § 28-31-11 is silent as to death benefits, the legislature did not intend that it should be applicable in such a situation.
A majority of American jurisdictions provide some form of setoff in the area of wage-loss legislation. 4 Larson, Law of Workmen’s Compensation § 97.20. The Arkansas General Assembly has the authority to legislate offsetting of benefits and it has chosen to do so with the enactment of Ark. Stat. Ann. § 12-3605(G). Budgetary management is an increasingly burdensome task for the members of the legislature. The goal may very well be to avoid “double-dipping,” i.e., receiving benefits from more than one source for the same death or injury-. For whatever reason, our Constitution does not empower this Court to second-guess our legislators who are charged with the awesome responsibility of spreading the public dollar over endless programs for the public welfare. If the legislature does not intend for Ark. Stat. Ann. §12-3605(G) to be applicable in cases such as the one at bar, then it needs to deal directly with the issue. The power to do so is entirely within the legislature’s province. We find no error.
Affirmed.
Cooper and Glaze, JJ., agree.
This was amended by Act 839 of 1985 which increased benefits available up to $100,000. | [
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Lawson Cloninger, Judge.
Appellant, Charles Van Patten, was convicted of driving while intoxicated in violation of Ark. Stat. Ann. § 75-2503 (Supp. 1985). The court fined him $150.00 plus costs, sentenced him to twenty-four (24) hours in jail, suspended his driver’s license for ninety (90) days, and ordered him to complete an alcoholic rehabilitation program. On appeal, appellant argues that the police stopped him without sufficient reasonable cause and thus the trial court should have excluded all evidence of the DWI. We agree with appellant and reverse his conviction.
The events leading up to the charges being brought against appellant occurred on the evening of December 18, 1983. Kevin Tindle, a Little Rock policeman, testified that at approximately 11:34 p.m. he received a call regarding a loud party disturbance at Mara Lynn Apartments. While enroute to investigate the disturbance, Officer Tindle received a second call which advised him that the person creating the disturbance had left the apartments in a brown Jeep. As Officer Tindle approached the intersection of Shackleford and Mara Lynn, he observed a brown and tan Jeep approaching the same intersection. Tindle said that the driver of the vehicle was not committing any traffic violations, but that he stopped the vehicle anyway, based on the information he had received from the calls. The officer testified that the driver of the Jeep, the appellant, smelled of alcohol and staggered when he stepped out of the Jeep. Officer Tindle transported appellant to the detention center and administered a breathalyzer test, the results of which were .15%.
Appellant argues that Officer Tindle did not have reasonable cause to stop him because he was not committing any traffic violations and the call about the loud party was not specific enough to give Officer Tindle a reasonable basis for stopping him. The State argues that the stop of appellant was reasonable because the officer had reason to suspect that a misdemeanor possibly involving injury to persons and property had been committed and because of the location of the Jeep and the time of night.
The Fourth Amendment of the Constitution protects individuals by forbidding all unreasonable searches and seizures. Appellant was protected by the Fourth Amendment as he drove down the street, so the issue is whether, under all of the circumstances, appellant’s right to personal security was violated by an unreasonable seizure. The test is to balance the nature and quality of the intrusion on personal security (the seizure) against the importance of the governmental interests alleged to justify the intrusion. United States v. Hensley, 496 U.S _, 83 L.Ed.2d 604 (1985).
Arkansas law recognizes that where felonies or crimes involving a threat to public safety are concerned, the government’s interest in solving the crime and promptly detaining the suspect outweighs the individual’s right to be free of a brief stop and detention. A.R.Cr.P. Rule 3.1 reads in pertinent part:
A law enforcement officer lawfully present in any place may, in the performance of his duties, stop and detain any person who he reasonably suspects is committing, has committed, or is about to commit (1) a felony, or (2) a misdemeanor involving danger of forcible injury to persons or of appropriation of or damage to property, if such action is reasonably necessary either to obtain or verify the identification of the person or to determine the lawfulness of his conduct.
In Hill v. State, 275 Ark. 71, 628 S.W.2d 284, cert. denied, 459 U.S. 882 (1982), the police received a radio dispatch describing an armed and extremely dangerous suspect who had committed armed robbery and murder. The suspect’s vehicle was described as a maroon, late model Ford Thunderbird with a white license plate with dark blue or black lettering. Soon thereafter, an officer observed a vehicle matching that description with a white Oklahoma license plate with dark letters. The Arkansas Supreme Court held that the stop was reasonable because the car matched the description; it was not likely that another vehicle of the description broadcasted was in the area at that time; and the crimes had just recently been committed in a neighboring county. The court, in discussing Rule 3.1, stated that “the justification for the investigative stop depends upon whether, under the totality of the circumstances, the police have specific, particularized, and articulable reasons indicating the person or vehicle may be involved in criminal activity.” Id. at 80.
In the case at bar, we do not think Officer Tindle had specific, particular or articulable reasons to suspect that a felony or a misdemeanor involving danger of injury to persons or property had been committed. The radio dispatch that he received was anonymous and it gave extremely general information about a “loud party” and a “brown Jeep.” The officer did not investigate or confirm the complaint before stopping appellant, so he had no reason to suspect that a misdemeanor involving personal or property damage had been committed by the occupant.
Thus, under the totality of the circumstances, we think Officer Tindle’s stop of appellant was unreasonable under A.R.Cr.P. Rule 3.1; that it violated appellant’s Fourth Amendment rights; and that the evidence of the DWI should have been excluded.
Reversed and dismissed.
Cooper and Mayfield, JJ., dissent. | [
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James R. Cooper, Judge.
This is an appeal from an order of the Boone County Circuit Court denying the appellant’s motion to set aside an order which found the appellants in contempt of court, imposed a civil fine in the amount of $5,000.00, and ordered the appellant’s answers to the complaint of the appellee stricken. We affirm.
The appellee filed a complaint against the appellants in July 1982, alleging that it had suffered damages occasioned by the appellants’ breach of contract. The prayer for relief sought damages, possession of certain computer hardware and software, and an injunction prohibiting the appellants from disposing of the software. The next day, the circuit judge issued an ex parte order allowing the appellee to repossess the computer equipment from the appellants. The order expressly provided that the appellants’ failure or refusal to surrender the equipment would be punishable as contempt.
The appellants filed a motion to dismiss the complaint, alleging that the court had no personal jurisdiction over them, and the motion also requested that the court stay its repossession order. The circuit judge denied the motion to dismiss, and allowed the appellants 10 days to answer the complaint. The appellants filed separate answers, but refused to allow the appellee to take possession of the equipment. In April 1983, thecircuit court again issued an order authorizing the repossession, expressly providing that failure to allow the repossession would be punishable as contempt.
The appellee attempted to secure possession of the equipment, but the appellants prevented the repossession. The appellee then filed a motion seeking to have the appellants held in contempt. The appellants countered by filing a motion to transfer the case to chancery court on the grounds that the complaint was actually an action for an accounting, traditionally heard in equity, and that the appellees were really seeking equitable relief. The motion also contained language which inferred that the appellants still contested the court’s personal jurisdiction over them. Before the circuit court acted on the motion to transfer, a consent order was entered in which the appellants agreed to deliver the computer equipment to the appellee. The consent order also contained the warning that failure to deliver the equipment would be punishable as contempt. The appellants never obtained a ruling on their motion to transfer.
Again the appellants refused to deliver the equipment. The appellee again filed a motion seeking to have the appellants held in contempt, to strike their answers, and to enter default judgments against them. The appellants were given notice of a hearing which was scheduled on the motion and on April 26, 1984, after the appellants failed to appear, the court found the appellants in contempt and ordered their answers stricken, which precluded them from contesting liability. The court awarded the appellee $1,271.25 in costs and expenses, and imposed a civil fine in the amount of $36,910.00 on the appellants.
The appellants then filed a motion to set aside the contempt order and partial judgment. The motion was based, inter alia, on the grounds that the court lacked personal jurisdiction over the appellants. The court held a hearing on the motion, with the parties represented by counsel, and reduced the fine to $5,000.00 because the equipment had finally been delivered. The court refused to set aside the finding of contempt and the partial judgment, and stated that “all other sanctions” previously imposed (including the striking of the appellants answers) were to remain in force. From that decision, comes this appeal.
The appellants’ first argument on appeal is that the circuit court lacked subject matter jurisdiction over them because the complaint sought injunctive relief and an accounting. Therefore, say the appellants, the original repossession order was void and they could not be validly held in contempt of the void order. We disagree with the appellants’ argument. First, the complaint does not pray for an accounting. The term “accounting” merely appears in the complaint as part of a quotation of the terms of the contract entered into between the parties. Second, circuit courts are not wholly without jurisdiction to grant injunctions.
Under the Arkansas Constitution, circuit courts are the reservoir of unassigned judicial power; they have original jurisdiction in all cases where jurisdiction is not expressly vested in another court. Russell v. Cockrill, Judge, 211 Ark. 123, 199 S.W.2d 584 (1947). The correct way to determine the circuit court’s jurisdiction is to first determine what class of cases are expressly entrusted to the jurisdiction of other tribunals, with the great residuum belonging concurrently or exclusively to the circuit court. State v. Devers, 34 Ark. 188 (1879). In order to successfully attack the circuit court’s jurisdiction, it must be shown that another court has been granted exclusive jurisdiction of the subject matter. Russell, supra. Counsel has not cited, nor has our research discovered, an Arkansas case construing Ark. Stat. Ann. Section 22-404 (Repl. 1962), which grants the chancery court original jurisdiction in “all matters in equity,” to mean that injunctive relief is solely within the jurisdiction of the chancery court. The mere allegation of an equitable principle in the complaint, unsupported by factual allegations, is insufficient to give courts of equity exclusive jurisdiction over the subject matter. See Duncan v. Baxter, 222 Ark. 955, 264 S.W.2d 395 (1954). Since the circuit court was not wholly without jurisdiction, we find no merit to this argument.
The circuit court’s refusal to set aside the finding of contempt is appealable because it is a final disposition of the contempt matter pending between the appellants and the court. The proper procedure for review of contempt citations is by appeal. Frolic Footwear v. State, 284 Ark. 487, 683 S.W.2d 611 (1985).
The appellants argue that the circuit judge abused his discretion in denying their motion to set aside the contempt order because their actions, which they allege were taken on the advice of Tennessee counsel, did not constitute willful conduct. We disagree. We hold that the trial judge’s finding of contempt is not against the preponderance of the evidence and that he did not abuse his discretion in refusing to set aside his earlier order. Our review of a finding of contempt is limited to examining the findings of the trial court, and overruling those findings only if they are against the preponderance of the evidence. Ex Parte Johnston, 221 Ark. 77, 251 S.W.2d 1012 (1952).
We affirm the trial court’s decision, and we remand for further proceedings on the remaining question of damages.
Affirmed and remanded.
Corbin, J., agrees.
Glaze, J., concurs. | [
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Tom Glaze, Judge.
In June 1980, Nell and George Stewart were injured when toxic chlorine gas entered their home through the water lines during a construction project on the Mount Holly water system. They filed suit for negligence against the appellant, LLLL Construction Company, Inc., the general contractor; Tom Loftin d/b/a Tom Loftin Construction Company (Loftin), the subcontractor; and appellee, Mount Holly Water Association (Mount Holly), the owner of the project. Loftin filed a third-party complaint against appellee, Mehlburger, Tanner, Renshaw & Associates (Mehlburger), the project engineers, who in turn filed a cross-complaint against appellant based upon an agreement wherein appellant, as contractor, agreed, among other things, to indemnify Mehlburger for claims, including attorney’s fees and expenses, that resulted from its work on the project. Mount Holly also counterclaimed against appellant, seeking indemnification for attorney’s fees and expenses. The jury returned a verdict for the Stewarts against the appellant and Loftin, but determined Mount Holly and Mehlburger were not negligent or liable for damages.
In pursuing their counterclaims, Mehlburger and Mount Holly subsequently filed motions for indemnity from appellant for their attorneys’ fees and necessary expenses incurred in defending the suit. Appellant responded contending that appel-lees had waived the indemnity issue and their motions should be denied. The trial court ruled that, by agreement of counsel and the court, the indemnity issue had been reserved for the court’s determination after the jury had rendered its verdict on the negligence and damages issues. The court then heard evidence concerning attorney’s fees and expenses, and awarded appellees judgment for such fees and expenses from which appellant brings this appeal. Appellant’s sole argument on appeal is that the trial court erred in reopening the trial to accept evidence on the indemnity issue. We must disagree and affirm.
Appellant argues the appellees failed to submit to the jury their contractual claims for attorneys’ fees and therefore waived any consideration of those claims after the jury verdict and entry of judgment confirming it. Appellees urge no waiver occurred because all parties agreed to reserve the contractual indemnity claims for trial before the court after the jury verdict. Although no earlier record or written stipulation had been made reserving the indemnity issue, the trial court, at a hearing on appellees’ motions for attorneys’ fees and expenses, specifically found:
... we were in agreement that the issues relating to indemnity would be submitted to the court after the jury verdict and the court would then rule on the matters of attorney’s fees and expenses as a matter of law and also as the trier of fact.
Under Rule 42(b) of the Arkansas Rules of Civil Procedure, the trial court could bifurcate the trial for convenience, to avoid prejudice or for expedition and economy. Absent an abuse of discretion, the trial court’s decision to bifurcate will not be disturbed on appeal. Fletcher v. Duke, 5 Ark. App. 223, 635 S.W.2d 2 (1982). Here, this cause involved six parties and their respective tort and contractual claims. Because the indemnity claims could not be determined until the issue of who, among four defendants, was liable for the Stewarts’ personal injuries, the trial court had good reason to bifurcate the trial, i.e., to avoid confusion and any resulting prejudice when considering the different and distinct claims of the respective parties.
Appellant argues that, regardless of the trial court’s authority to bifurcate the trial, the record simply fails to support the proposition that there was any discussion or agreement about bifurcation. While the original record fails to reflect any such agreement, it is undisputed that an unrecorded, pre-trial confer ence had been held. Though appellant disagrees with the trial court’s finding, the court determined that appellees’ indemnity claims were discussed not only during the trial but also even possibly at the pre-trial conference. In an attempt to settle the record concerning what previously had occurred at trial and at pre-trial, the trial court concluded that “[it] went forward with the understanding that we were in agreement that the issues relating to indemnity would be submitted to the court after the jury verdict. . . .” In so finding, the trial court supplemented the record as it was empowered to do, and, in so doing, rendered ineffective appellant’s argument on appeal that the record fails to reflect an agreement to try the tort and indemnity issues in a bifurcated manner. See also Fountain v. State, 269 Ark. 454, 601 S.W.2d 862 (1980).
Appellant also contends the trial court erred because Rule 7(c) of the Uniform Rules for Circuit and Chancery Courts provides that the court will not recognize any agreement or stipulation between counsel unless it has been reduced to writing, signed by the parties or their attorneys and filed in the case, or unless it has been dictated into the record. Suffice it to say, the agreement in issue here was not merely between the parties but instead involved the parties’ counsel and the court. Under these circumstances, Rule 7(c) is not applicable or controlling.
We hold the trial court did not abuse its discretion by bifurcating the trial or in reserving and deciding the'appellees’ indemnity claims after the jury rendered its verdict.
Affirmed.
Cloninger and Mayfield, JJ., agree.
Although not argued below, appellant now urges that the trial court violated Rule 60 of the Arkansas Rules of Civil Procedure. We do not consider assignments of error raised for the first time on appeal. Bull v. Brantner, 10 Ark. App. 229, 662 S.W.2d 476 (1984). | [
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Lawson Cloninger, Judge.
Appellant was found guilty by the court, sitting as factfinder, of defrauding a secured creditor in violation of Ark. Stat. Ann. § 41-2304 (Repl. 1977). The court assessed punishment at three (3) years suspended imposition of sentence, payment of a $300.00 fine and court costs and an additional $200.00 to be paid to the Victim Relief Fund. Appellant’s main argument on appeal is that the court’s verdict of guilty is erroneous because the State failed to prove that he acted with the requisite culpable mental state. We agree with appellant and reverse his conviction.
At trial, the evidence established that appellant had been employed as an instructor at South Central Career College from January until August of 1984. During this time, South Central agreed to purchase an automobile for appellant’s personal use because appellant had been unable to get one financed otherwise, due to a poor credit history. The automobile was financed with Twin City Bank. Title to the automobile was vested in South Central but the school deducted the amount of the payments from appellant’s paycheck and appellant was responsible for all insurance, taxes and licensing fees on the automobile.
Sometime in the latter part of August of 1984, appellant left the employ of South Central because he was involved in the formation of a new school called Micro Tech Institute. On August 21, appellant discussed the matter of the automobile with Fred Ellis, the current owner of South Central. Mr. Ellis testified that appellant asked for two days to get the title to the automobile taken care of, and when Mr. Ellis agreed to this, appellant told him that his accountant would contact Mr. Ellis about the matter. On August 22, Mr. Ellis did receive a telephone call from appellant’s accountant and they discussed the automobile problem, but nothing was resolved.
Mr. Ellis left the country on August 23, but he testified that while he was away his staff at the school attempted to contact appellant. When Mr. Ellis returned to Little Rock, he was informed by his staff that they had not been able to locate appellant and that the title to the automobile had not been taken care of. Shortly thereafter, Mr. Ellis had a warrant sworn out for appellant’s arrest. He testified that he took this action because appellant had not transferred the title after saying that he would; because efforts to contact appellant had been unsuccessful; and because appellant had allowed his insurance on the automobile to lapse. Twin City Bank apparently was not involved in the prosecution of this case and no one representing the bank testified at the trial.
Jim McAuley, a certified public accountant, testified that sometime in June or July of 1984, he participated in the formation of Micro Tech Institute with appellant. Mr. McAuley stated that appellant was very concerned about the new school taking over the payments and getting title to the automobile. He said appellant exhibited intentions of paying off the automobile or taking care of the financing.
Paul Johnson, the attorney who incorporated Micro Tech, testified that he also discussed the automobile with appellant and that appellant was concerned about paying it off. He stated that he talked to Mr. Ellis long before appellant was arrested, and informed him that appellant had possession of the automobile and planned to make the payments. According to Mr. Johnson, Mr. Ellis agreed to this then, but later told Mr. Johnson that he would only give them a bill of sale on the automobile if the note was paid off and that otherwise, he would not cooperate.
Mr. Ellis admitted having one conversation with Mr. Johnson but denied being told about the plan to have the new school take over the payments on the automobile. He also denied that Mr. Johnson requested a bill of sale from him.
The trial court found that there was no evidence that appellant intended ultimately to defeat the claims of his creditors. The court also found that the evidence indicated that appellant was having contact with persons at South Central. However, the court found appellant guilty, making the following statements:
[T]he Court finds that the defendant was treating the property and his business in such a manner that he was acting to hinder the enforcement of a security interest. Now, there is not any evidence that Twin City Bank actually was undertaking to seize this car, either pursuant to a contract of peaceful repossession or any rights that the Twin City Bank, the security holder, had. But, it strikes me that the reason for enacting of this statute was to fix a greater burden in view of the threat of criminal prosecution or sanctions of criminal prosecution upon someone holding secured property, that there is an affirmative duty to keep someone advised.
Appellant contends on appeal that the trial court erred in finding that he had an affirmative duty to keep South Central advised. He points out that this duty is not set out in the statute. Furthermore, appellant argues that the State failed to prove any action or inaction on his part which resulted in any disposition of the property. Appellant argues that the State failed to prove that he acted with the requisite culpable mental state or with purposeful intent as is required by Ark. Stat. Ann. § 41-2304. Appellant maintains that the effect of the trial court’s ruling is to make the offense he was convicted of a strict liability crime for which intent need not be proven.
The State contends that appellant took two actions to hinder the enforcement of a security interest: (1) he failed to take care of the matter in the two days agreed upon by South Central and (2) he allowed the insurance on the automobile to lapse. The State does not specifically address appellant’s contention that it failed to prove his culpable mental state.
We agree with appellant’s argument that the State failed to prove that he acted with the requisite culpable mental state, and therefore his conviction cannot stand. Ark. Stat. Ann. § 41-2304 provides in pertinent part:
A person commits the offense of defrauding secured creditors if he destroys, removes, cancels, encumbers, transfers or otherwise disposes of property subject to a security interest with [the] purpose to hinder enforcement of that interest. (Emphasis added).
Thus, the State was required to prove that appellant acted with the purpose to hinder enforcement of a security interest.
Ark. Stat. Ann. § 41-203(1) (Repl. 1977) defines “purposely” as follows: “A person acts purposely with respect to his conduct or a result thereof when it is his conscious object to engage in conduct of that nature or to cause such a result.” We do not find proof in the record that appellant took any action with respect to the automobile in question with the conscious object to hinder the enforcement of a security interest. There was no testimony from any official at Twin City Bank, which was the true security holder in this case. Although there was testimony that appellant could not be located and that he allowed the insurance to lapse on his car, these circumstances alone do not establish appellant’s intent to hinder the enforcement of a security interest. The evidence indicates that the only notice of cancellation from the insurance company was sent to South Central because title to the car was in the school’s name. We note that the trial court also was not convinced that appellant acted with the requisite intent, as it found that he had no intent to ultimately defeat the claim of any secured party and that he was in contact with the officials at South Central.
We have examined the evidence in the light most favorable to the State, Lunon v. State, 264 Ark. 188, 569 S.W.2d 663 (1978), but we think it inadequate to support appellant’s conviction. South Central Career College was not a secured creditor; its only relationship with appellant was contractual. Although appellant was extremely careless in the conduct of his business affairs, there was no action or inaction by him which resulted in a disposition of the automobile or the purposeful hindering of the enforcement of a security interest.
Reversed and dismissed.
Cracraft, C.J., and Mayfield, J., agree. | [
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Tom Glaze, Judge.
Aubrey Pittman appeals from a decision of the full Commission which reversed the administrative law judge’s award of benefits. The Commission held that appellant failed to prove by a preponderance of the evidence that complaints he developed several weeks after the accident arose out of his employment. For reversal, appellant contends that (1) the Commission erroneously applied the legal standard of absolute certainty under the guise of “reasonable medical certainty,” and (2) the Commission’s denial of benefits is not supported by substantial evidence. We reverse and remand.
Appellant, a fifty-nine-year-old truck driver, was injured on March 14,1984, while driving through Arizona. A strong gust of wind blew his rig over on its left side. Appellant was struck on his left side by the body of the cab, and on his right side by his second driver, who was sitting in the passenger seat. Appellant was unconscious from between three to ten minutes. Upon regaining consciousness, he experienced severe pain in his right arm and leg. He was admitted to Flagstaff Medical Center on the day of the accident, and discharged March 16, 1984, with a diagnosis of cervical strain, cerebral concussion, and arthritis of the cervical spine.
Appellant returned to Arkansas and remained off work for three weeks. He had no problems during this period. Shortly after his return to work, he began having “blank-out spells.” After making three cross-country trips, he was laid off because, according to the employer, insurance would not cover him. Following this layoff, appellant worked at a cemetery for about eight weeks, but he left when he felt he could no longer perform the work. He has not worked since.
Appellant did not consult a physician about his “blank-out spells” until September 1984. At that time, he complained of sudden confusion, disorientation, numbness of the right side of his face and right hand, and pain on the right side of his neck, radiating to his head. A CT scan detected that appellant’s left ventricular system was larger than his right. An EEG showed mildly abnormal findings in the bifrontal and temporal regions, more prominent on the left. A cerebral arteriogram revealed an abnormal condition which resembled an aneurysm or a diverticu-lum of the right internal carotid artery at the point where the artery enters the skull.
Before the administrative law judge, appellant contended he was temporarily, totally disabled as a result of the March 14th accident. Appellee contended that the condition was either preexisting or not causally related to the accident.
As his first point for reversal, appellant contends that the Commission erroneously applied the legal standard of absolute certainly under the guise of “reasonable medical certainty.” The only medical testimony presented in this case is that of Dr. Robert Dickins, a neurosurgeon, who first saw appellant on October 2, 1984, over six months after the March 14th accident. The following are pertinent excerpts from Dr. Dickins’ testimony regarding the cause of appellant’s post-accident complaints:
So it is possible that the things that he described to me were caused or related to the accident.
* * *
I would have to say that it is possible they were not related.
* * *
I am at somewhat of a disadvantage in making any absolute statement in that regard [i.e., the degree of medical certainty that appellant’s symptoms are related to the accident] because I have been uncertain as to the origin of the symptoms he has had.
* * *
Well, it’s certainly possible and probable that his symptoms are related to the injury. But if you ask me if there is any other possible explanation I would have to say yes. . . .
* * *
Based on the history that’s given to me, I would say that there’s a probability that a majority of the symptoms he’s describing to me are related to the accident.
The Commission described Dr. Dickins’ opinion, that appellant’s symptoms may be related to the accident, as a “best guess” and stated that guesswork was not an “appropriate basis” for decision making. In reaching this conclusion, the Commission relied heavily on two medical malpractice cases, Norland v. Washington General Hospital, 461 F.2d 694 (8th Cir. 1972) and Fitzgerald v. Manning, 679 F.2d 341 (4th Cir. 1982). In Norland, the court held that, while the words “probable” and “possible” should not be determinative of the competency of a doctor’s testimony, the testimony should be “such in nature. . .as to judicially impress that the opinion expressed represents his professional judgment as to the most likely one among the possible causes.” 461 F.2d at 697. In Fitzgerald, the court held that medical opinions “must be stated in terms of a ‘reasonable degree of medical certainty.’ ” 679 F.2d at 350.
The Norland and Fitzgerald holdings clearly differ from the long-established medical standard required in workers’ compensation cases in Arkansas. Our decisions simply have not required physicians to express opinions in terms of either a “most likely possibility” or “a reasonable degree of medical certainty.”
In Kearby v. Yarbrough Brothers Gin Co., 248 Ark. 1096, 455 S.W.2d 912 (1970), the supreme court upheld the Commission’s award of benefits based upon a doctor’s statement that there “could be” a connection between Kearby’s work and his fatal heart attack. In support of its decision, the supreme court favorably quoted the following language from Atkinson v. United States Fidelity & Guaranty Co., (Texas) 235 S.W.2d 509, 513 (1950):
It is urged that because Dr. Longoria at one point testified that, ‘it is a possibility that the origin (of the disease) was incited through strain and stress and exposure,’ this case comes within the rule that something more than a showing of mere ‘possibility’ is necessary to establish a finding of causal connection, [cite, omit.] In determining whether or not a showing of mere possibility and no more has been made, all of the pertinent evidence on the point must be considered. The fact that an expert medical witness, in speaking of cause and effect uses such expressions as ‘might cause’, ‘could cause’, ‘could possibly cause’, or phrases similar thereto does not preclude a jury finding of causal connection, provided there be other supplementary evidence supporting the conclusion. Causal connection is generally a matter of inference, and possibilities may often play a proper and important part in the argument which establishes the existence of such relationship. (Emphasis supplied.)
In Exxon Corporation v. Fleming, 253 Ark. 798, 489 S.W.2d 766 (1973), the supreme court affirmed the Commission’s finding of a causal connection between Fleming’s injury and his subsequent death. There the treating doctor, who testified Fleming’s injury and death were work-related, admitted his opinion was based upon “possibilities” rather than “probabilities.” Citing Kearby, supra, the court held that the use of expressions or phrases similar to “could cause,” “might cause” or “could be” would not bar a finding of causal connection, provided that there was other evidence supporting the conclusion. See also Bradley County v. Adams, 243 Ark. 487, 420 S.W.2d 900 (1967) and Crain Burton Ford Co. v. Rogers, 12 Ark. App. 246, 674 S.W.2d 944 (1984).
Appellees cite Ocoma Foods v. Grogan, 253 Ark. 1111, 491 S.W.2d 65 (1973) and Lybrand v. Arkansas Oak Flooring Co., 266 Ark. 946, 588 S.W.2d 449 (Ark. App. 1979) in support of their argument that the Commission’s decision here should be affirmed. Our study of both cases reflects these decisions were based upon or are consistent with the supreme court’s earlier holdings in Kearby and Exxon Corp. In Grogan, for instance, the court acknowledged it had approved some Commission awards when the supporting medical evidence included such terms as “possible”, “might” and “could cause.” Nevertheless, citing both Kearby and Exxon Corp., it held Grogan was not entitled to benefits when her doctor said it was “possible” her work aggravated her existing back condition because there was no evidence that her injury was job connected. The instant case is distinguishable from Lybrand because the court there concluded none of the medical evidence reflected that Lybrand’s stroke was caused by his work.
Appellee argues that even if the Commission’s legal analysis was entirely incorrect, we should affirm the Commission’s decision because the Commission was acting entirely within its discretion to rule that Dr. Dickins’ testimony had no probative value on the issue of causation. We cannot agree. Again, the Commission used the wrong legal standard when deciding that Dr. Dickins’ testimony must be given in terms of reasonable medical certainty before it could be said the appellant had met his burden of proof on the causation issue.
We would be violating the function of the Commission if we were to assume its findings and holding would have been the same if it had examined and weighed the evidence under the correct standard or rule set out in Kearby, supra, and the other cases discussed above. For that reason, we must reverse and remand this cause to permit the Commission to reconsider the evidence and to decide this cause consistent with the controlling legal principles established by Arkansas case law.
Reversed and remanded.
Cloninger and Mayfield, JJ., agree. | [
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George K. Cracraft, Chief Judge.
Jeffery Steele Forgy appeals from his conviction of aggravated robbery for which he was sentenced to ten years in the Arkansas Department of Correction. He contends the trial court erred in refusing to suppress all evidence of identification and in refusing to dismiss the charge because of unreasonable delay in execution of the arrest warrant. We find no merit in these contentions.
On September 17, 1982 Eddie Brickell, a pharmacist employed by Price Pharmacy, reported a robbery at the store. He testified that a man had entered the store and forced another employee, Jerry Webb, into the back of the store before demanding that Brickell fill a pillow case with prescription drugs. The assailant then fled through the back door of the store. Brickell testified that the man was in the store for about fifteen minutes, the lighting was good, and that he had been within four feet of the assailant during the robbery. He gave a description of the assailant to the police and subsequently identified the appellant from a photo spread of six photographs. Police officers testified that Jerry Webb also identified the appellant from the same photo spread. During the trial Brickell positively identified the appellant and Webb stated there was “a 95% possibility that appellant was the robber.”
Appellant first contends that the trial court erred in failing to suppress the prior identification of the appellant by Brickell and Webb. He claims the identification was the result of an unduly prejudicial, defective identification procedure and was impermissibly suggestive. Generally a witness may testify to a previous identification and relate when and where the identification took place. A police officer or other person who was present and familiar with the circumstances may also testify concerning the identification.
John Clark, an investigator for the Jacksonville Police Department, testified that he prepared a photo lineup containing six photographs which he gave to Officer Moore to use in his investigation. Officer Moore testified that the lineup was composed of six photographs. Each photograph was taped behind a cutout IV2 inches by 2 inches in size. There was no police identification on the photographs. He stated that appellant’s photograph had been located in the middle of the bottom row. Moore testified that he exhibited the photo lineup to Brickell and Webb. Both witnesses made a positive identification of the appellant as the robber. The six photographs used in that identification were introduced into evidence.
Brickell testified that when the photo lineup was shown him he was told that the officers might have a suspect and was asked if he could identify any one of the photographs. He further testified that his identification of the appellant was positive and based on his observations made during the time of the robbery and without suggestion by the police. The trial court overruled the motion to suppress the identification testimony and we find no error.
It is for the trial court to determine if there are sufficient aspects of reliability surrounding an identification to permit its use as evidence, and then it is for the jury to determine what weight the identification testimony should be given. Wilson v. State, 282 Ark. 551, 669 S.W.2d 889 (1984). The suppression of an in-court identification is not warranted unless the pretrial identification procedure was so suggestive as to create a substantial likelihood of irreparable misidentification.
In Bell v. State, 6 Ark. App. 388, 644 S.W.2d 601 (1982) we declared that the factors to be considered in testing the reliability of lineup identification included the opportunity of the witness to view the criminal at the time of the crime; the witness’s degree of attention; the accuracy of prior description of the criminal; the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. The evidence shows that both witnesses had ample opportunity to view the appellant at the time of the crime. Both witnesses were able to give a detailed description of the robber to the police immediately after the robbery and there is nothing in the record to show that their description was inaccurate. Both witnesses positively identified the appellant as the robber in a photo lineup within six weeks of the robbery with no suggestion or encouragement from the police to do so.
The appellant’s argument that the officers failed to illustrate the placement of the photographs and that a photograph was missing is not supported by the record. Officer Moore explained exactly how the lineup was composed and the care that was taken to make the photographs appear to be the same size and with no identification information showing. Although there was some indication that one of the photographs used in the photo spread was not introduced, the testimony of Officer Moore was that there were six photographs in the photo spread. Six photographs were introduced into evidence.
Appellant argues that the officer’s statement to Brickell before he viewed the lineup was improper. The witness denied that the officer made any suggestion or influenced him in any way. He was simply told that the police had a suspect and asked if he could identify anyone in the lineup. In Freeman v. State, 6 Ark. App. 240, 640 S.W.2d 456 (1982) the court declared that merely telling a witness that a suspect is in the lineup is not absolutely impermissible. The court recognized that the witness must realize that he would not be asked to view a lineup if a suspect was not present. What the witness is told may be only one factor to consider in reviewing the total surrounding circumstances.
On review this court views the totality of the circumstances to ascertain the reliability of identification witnesses’ testimony. Whitfield v. State, 8 Ark. App. 329, 652 S.W.2d 42 (1983). Viewing the totality of the circumstances surrounding the pretrial lineup in light of the factors set out in Bell we conclude that the decision of the trial court is not clearly erroneous and should be affirmed.
The appellant also contends that the witnesses’ in-court identification should have been suppressed because it was preju-dicially tainted by pretrial occurrences. We have found nothing which tainted the pretrial identification and the suppression of an in-court identification is not warranted unless the pretrial one was so suggestive as to create a substantial likelihood of irreparable misidentification.
Both eye witnesses to the robbery were able to identify the appellant in court based on the observation of him during the robbery. Both stated that they were not influenced by their earlier identification and their in-court identification was based on their observations at the time of the robbery.
The robbery occurred on September 17,1982. A warrant for appellant’s arrest was issued on October 26,1982. The appellant was not arrested until March 14,1984. Two days before the trial the appellant moved that the warrant be quashed and the charge dismissed because the delay in bringing him to trial had denied him due process. The trial court denied the motion.
Aggravated robbery is a class “Y” felony for which the statute of limitations is six years. Ordinarily where an indictment is returned within the period of limitations due process considerations do not arise. The statute of limitations, however, defines only the outer limits of prosecution beyond which there is an irrebuttable presumption that a defendant’s right to a fair trial has been prejudiced. Within the guidelines of the statute of limitations the due process clause still has a limited role to play in protecting against oppressive delay which prejudices a defendant’s rights. These rights are discussed in our recent opinion of Young v. State, 14 Ark. App. 122, 685 S.W.2d 823 (1985). In Young we held that the due process considerations do not arise until prejudice resulting from the delay is proven and it further appears that the State intentionally delayed the proceedings to gain some tactical advantage over the accused. Scott v. State, 263 Ark. 669, 566 S.W.2d 737 (1978); Bliss and Bliss v. State, 282 Ark. 315, 668 S.W.2d 936 (1984). In Young we declared that mere delay is not sufficient grounds for aborting a criminal prosecution. The accused has the burden of first showing prejudice resulting from loss of witnesses, physical evidence or dimming of memory, and how that loss is prejudicial to him. If the defendant establishes such prejudice, the burden is then upon the prosecutor to give a satisfactory reason for the delay.
In Young and the cases cited within it, the court dealt with delay in obtaining an indictment rather than the execution of a warrant issued on probable cause. However, the dqe process considerations are the same in either case and the courts have applied the same principles to both situations. U.S. v. Ewell, 383 U.S. 116 (1966); U.S. v. Scully, 415 F.2d 680 (1969). Accommodating the administration of justice and the accused’s right to a fair trial necessarily requires a delicate balancing of the reason for the delay against the resulting prejudice based on the circumstances of each case. U.S. v. Marion, 404 U.S. 307 (1971).
In the present case, the appellant denied having committed the robbery and testified that due to the passage of time he would be unable to establish his whereabouts on the day of the crime. This was a sufficient showing of prejudice to shift the burden to the State to explain the delay. The officers testified that at the time the identification was made and the warrant was issued they had no address for the appellant. They had attempted to locate the appellant by other means including the questioning of witnesses to the crime and a woman who knew the appellant. The officer stated that the woman told him that her husband and the appellant had left town without leaving any address. The officer testified that examining the telephone books had failed to disclose the whereabouts of the person they sought.
The appellant testified that he was in the Little Rock area during 1982 and 1983 but had no telephone listed in his name until late 1983. The listing would not appear in a telephone book until some time the following year. His only relative with a telephone had a different last name. He stated that he had moved a number of times during that period, living with friends, and had no utilities connected in his own name. During this period he had no steady job and could think of no one who saw him daily during that period. There is no evidence that the State delayed the proceedings to gain a tactical advantage. We cannot conclude that the State did not satisfactorily explain the delay.
Affirmed.
Cloninger and Mayfield, JJ., agree. | [
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James R. Cooper, Judge.
The sole issue on appeal in this workers’ compensation case is whether the Commission erred in determining that the appellee was entitled to a hearing on the merits of her claim for benefits attributable to her back injury. The appellant contends that the Commission erred because the benefits sought are barred by the doctrines of res judicata, laches, waiver, estoppel, and the statute of limitations.
We decline to decide the issue because the appellant has failed to cite any legal authority to support its contentions and has failed to assert any compelling reasons why we should adopt the position espoused by the appellant. Gray, Director v. Ragland, Director, 277 Ark. 232, 640 S.W.2d 788 (1982); Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977); Arnold v. Arnold, 261 Ark. 734, 553 S.W.2d 251 (1977); Hill v. Farmers Union Mutual Ins. Co., 15 Ark. App. 222, 691 S.W.2d 196 (1985); Hall v. State, 15 Ark. App. 309, 692 S.W.2d 769 (1985). As we said in Hill,
... we do not consider such an assignment of error on appeal unless it is apparent without further research that it is well taken. Haynes v. Farm Bureau Mut. Ins. Co. of Ark., Inc. 11 Ark. App. 289, 669 S.W.2d 511 (1984).
We note that the appellee indicates that she believes that the questions of res judicata, laches, waiver, estoppel and the statute of limitations will be open on remand to the administrative law judge. Those are the precise issues decided by the Commission in the case at bar, and we affirm the Commission’s decision. Those issues have been decided by this opinion, and will not be open on remand.
Affirmed.
Corbin and Glaze, JJ., agree. | [
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George K. Cracraft, Judge.
Thomas A. Stewart appeals from a decree of the chancery court of Grant County ordering a sale in partition of property owned with Ruby P. Stewart as an estate by the entirety. We agree that the chancellor erred in ordering partition in this case. The narrow issue presented by this appeal can only be brought into focus by a recitation of the events leading up to the appeal.
The parties were married in this state and maintained their marital domicile here for a number of years. After the marriage they acquired title to a 20 acre tract of land in Grant County, Arkansas, as tenants by the entirety. During the first week in September 1976 the appellee went to Springfield, Missouri, for the sole purpose of obtaining medical treatment for seizures. While there she stayed in the home of an uncle and was referred to a physician in Rice County, Kansas. She arrived in Kansas on or about September 10, 1976 and undertook the desired medical treatment. While in Kansas appellee resided with family and friends.
On November 10, 1976 appellee filed suit for divorce in the Kansas court and service was had on the appellant by restricted mail pursuant to K.S.A. § 60-307(a) (1983). Service on a nonresident defendant in a divorce action under that section establishes jurisdiction in rem and not in personam. Lillis v. Lillis, 1 Kan.App.2d 165, 563 P.2d 492 (1977). Appellant did not appear, answer or otherwise plead in that action.
The parties thereafter briefly reconciled and the appellee returned to Arkansas and remained “a month or two” until marital problems redeveloped and she began having seizures again. She returned to Kansas for further medical treatment. In January 1977 she returned to Arkansas and resided in the marital home until early April 1977 when she again returned to Kansas. On April 4,1977, a decree of divorce was granted to the appellee by the Kansas court which provided that “the proceeds from the sale of the 20 acre tract of Arkansas land which is in the process of being sold should be equally divided.” A short time after the decree was entered the appellee again returned to Arkansas, remarried and has subsequently resided continuously in this state.
On March 14, 1984, the appellee brought this action for partition pursuant to Ark. Stat. Ann. § 34-1801 (Supp. 1983) which permits partition of lands held by the entirety where the owners have been divorced and neither occupies the land as a homestead. Appellee introduced an authenticated copy of the Kansas decree. There was no evidence that either party resided on the property or maintained it as a homestead. The appellant answered admitting the ownership by the entireties but denying all other allegations of the complaint. By a proper motion appellant placed the validity of the Kansas divorce in issue.
The chancellor, relying on Rogers v. Rogers, 271 Ark. 762, 611 S.W.2d 178 (1981) ordered partition. Rogers holds that while a foreign divorce decree cannot dissolve an estate by the entirety to Arkansas land, a chancellor, under certain circumstances, may do so in a partition action and proceed with the division. Both the doctrine announced in Rogers and the applica tion of the pertinent portions of Ark. Stat. Ann. § 34-1801 (Supp. 1983) require that the tenants by the entirety be validly divorced. The sole issue presented is whether the Kansas divorce was a valid one subject to full faith and credit in our court. We conclude that it was not.
Subject matter jurisdiction for divorce in Arkansas can be based on less than domiciliary status. Actual presence for the required period of time is all that is required. Ark. Stat. Ann. § 34-1208.1 (Repl. 1962). Although Arkansas courts acquire subject matter jurisdiction in such cases based on actual presence within this state, Kansas requires that jurisdiction be based on domiciliary status.
The applicable Kansas statute conferring subject matter jurisdiction in divorce actions is K.S.A. § 60-1603(a) (1983) which requires that a plaintiff filing an action for divorce be “an actual resident of the state for sixty (60) days next preceding the filing of the petition for divorce.” The Kansas courts have declared that for the purpose of divorce jurisdiction the word “resident” is substantially the equivalent of “domicile” and the words “actual resident” in that statute mean bona fide residence, i.e., having an intent to permanently reside in Kansas. Perry v. Perry, 5 Kan.App.2d 636, 623 P.2d 513 (1981).
Whether or not the Kansas court had subject matter jurisdiction must be determined by the law of that state and if the appellee did not have actual residence, as the courts of Kansas have defined that term, the court of Rice County had no subject matter jurisdiction to grant a valid divorce. The jurisdiction of that court may be impeached in a court in Arkansas because the appellant did not appear in Kansas to contest the issue of domicile. Cooper v. Cooper, 225 Ark. 626, 284 S.W.2d 617 (1955); Anderson v. Anderson, 223 Ark. 571, 267 S.W.2d 316 (1954).
It is well settled that in order to effect a change of domicile from one place or state to another, there must be an actual abandonment of the first domicile, coupled with the intention not to return to it and there must also be a new domicile acquired by actual residence in another place or jurisdiction, coupled with the intent of making the last acquired residence a permanent home. Phillips v. Sherrod Estate, 248 Ark. 605, 453 S.W.2d 60 (1970); Gooch v. Gooch, 10 Ark. App. 432, 664 S.W.2d 900 (1984). This rule has also been adopted by the courts of Kansas. Perry v. Perry, supra. In both Arkansas and Kansas the burden of proving a change of domicile is on the person who asserts it. Hart v. Hart, 223 Ark. 376, 265 S.W.2d 950 (1954); Perry v. Perry, supra.
In the trial in the Arkansas court, in addition to the facts already recited, the appellee testified as follows:
Q. Was your intention in going to Kansas to see the physician or was it to establish a residence and live in Kansas?
A. No, I went there to see the doctor.
Q. So your intention was not to establish a residence in Kansas?
A. No ... .
Q. All right, and at the time you were there, you were just there to see a physician, if I understand your testimony correctly.
A. That is right.
On the evidence presented we must conclude that a finding that the appellee had established a domicile in the State of Kansas is clearly erroneous. Although the evidence establishes that she was not continuously in that state for sixty days before the commencement of the action, no particular time is required for the establishment of a domicile. Appellee’s presence in Kansas for a period as short as twenty-four hours, when accompanied with the requisite intent, could establish that status. By her own admission the appellee never had the requisite intent to establish a new permanent residence in Kansas. As the appellee has not proved that she became a domiciliary of the State of Kansas, the Kansas court lacked subject matter jurisdiction to grant a valid divorce, without which the chancery court of Grant County had no statutory authority to order partition of an estate by the entirety.
Reversed and dismissed.
698 S.W.2d 519
Corbin and Mayfield, JJ., agree. | [
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Lawson Cloninger, Judge.
The appellant, Marvin Maples, Sr., was charged with criminal attempt to commit first degree murder. The victim was appellant’s ex-wife, Elaine Maples. Appellant was convicted by a jury of the lesser included offense of aggravated assault and sentenced to fifteen years in prison.
Appellant contends that there is no substantial evidence to support the jury’s verdict. He also contends that the jury’s verdict is inconsistent, and that the trial court erred in permitting the State to present character evidence that the victim was a truthful person when appellant had challenged only credibility and not character. We hold that the trial court erred in admitting evidence of Elaine Maples’ character and we reverse and remand for a new trial.
In his first point for reversal, appellant contends that there was insufficient evidence to support the jury’s verdict.
Although we are reversing the judgment in this case on an evidentiary issue, and remanding for a new trial, we must first review appellant’s challenge to the sufficiency of the evidence. In doing so, we disregard other possible trial errors. In Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984), the Arkansas Supreme Court, relying upon Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141 (1978), stated: .
Were we not to make such a review [review the sufficiency issue first], the alternative is to avoid the sufficiency argument by remanding for retrial on the other grounds. But unless the reasons for a new trial are defeated by reviewing the sufficiency first, including the inadmissible evidence, generally the review should be granted. That is what Burks requires.
The Arkansas Supreme Court, in Harris, explained its reasoning in this manner:
Because of unfortuitous errors by the trial court and the defendant’s right to object to those errors, the defendant should not be precluded from a review of the sufficiency or, in the alternative, forced to gamble entirely on the sufficiency issue by electing to forego all other objections. For an appellate court to avoid the argument by reversing on other grounds would ignore the protection intended by the double jeopardy clause as interpreted in Burks.
In resolving the issue of sufficiency of the evidence in a criminal case, we review the evidence in the light most favorable to the appellee and affirm if there is any substantial evidence to support the verdict. Substantial evidence is evidence that is of sufficient force and character that it will compel a reasonable mind to reach a conclusion one way or the other, but it must force the mind to pass beyond suspicion or conjecture. Honea v. State, 15 Ark. App. 382, 695 S.W.2d 391 (1985).
Most of the evidence in this case was in the form of testimony from the victim, Elaine Maples. She stated that on the evening of February 4, 1984, she and appellant were on their way from Perryville to Little Rock to go dancing. On the way they pulled off on a dirt road near Ferndale, in Pulaski County, and Mrs. Maples left the car momentarily. When she returned, appellant tried to kiss her and she refused. Appellant then drove “up into the mountains,” stopped the car again, locked the doors, and climbed on top of her. When she resisted appellant’s advances he began slapping her and calling her names. Appellant then pulled out a knife, put it to Mrs. Maples’ throat and threatened to “cut her up into little pieces and chunk her into the lake.” He later pulled out two guns and told her he was going to blow her head off. After several similar threats, he put the guns away, drove back down to the highway and drove Mrs. Maples back to Perryville.
We find that this evidence is of sufficient force and character to constitute sufficient evidence to support the conviction of appellant for aggravated assault.
Appellant’s second point for reversal is closely related to the first. He argues that it was impossible for the jury to find all the elements of aggravated assault after rejecting the charge of attempted murder in the first degree. He contends that this results in there being insufficient evidence to support the jury’s verdict. Appellant cites no authority for his position and his argument is not convincing. See Davis v. State, 12 Ark. App. 79, 670 S.W.2d 472 (1984).
In order for the jury to convict appellant for attempted first degree murder, it would have had to find that he acted with a premeditated and deliberated purpose to cause the death of Mrs. Maples. Ark. Stat. Ann. § 41-1502 (Repl. 1977). Aggravated assault, Ark. Stat. Ann. § 41-1604 (Repl. 1977), is committed when a person purposely engages in conduct that creates a substantial danger of death or serious physical injury under circumstances manifesting extreme indifference to the value of human life. It was permissible for the jury to reject the more serious charge, which would require a finding of the higher degree of culpability than was required of the lesser included offense, and to find appellant guilty of the lesser offense.
In his third argument, appellant urges that the trial judge erred when, over defense objection, he permitted the State to present a character witness to bolster Mrs. Maples’ character. Appellant argues that permitting Sheriff Byrd of Perry County to testify as to the reputation of Elaine Maples for truthfulness and honesty before her character had been attacked by the defense was improper. The State maintains that Elaine Maples’ character had been attacked during opening statement and on cross examination.
The credibility of any witness, including a defendant, is always an issue, but the character of a witness may only be brought into issue in accordance with the rules of evidence. Uniform Rules of Evidence, Rule 608(a)(2) states that “evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.” In Arkansas there is no ironclad rule of law as to what constitutes an attack on the character of the witness. E. Cleary, McCormick on Evidence, § 49 (3d ed. 1984), states that even a “slashing cross examination” may constitute an attack on the character of the witness. He concludes:
A more sensible view is the notion that the judge should consider in each case whether the particular impeachment for inconsistency and the conflict in testimony, or either of them, amounts in net effect to an attack on character for truth and should exercise his discretion accordingly to admit or exclude the character support.
In Collins v. State, 11 Ark. App. 282, 669 S.W.2d 505 (1984), we agreed with this view, and adopted the position that this matter should be left to the trial court’s discretion. In Collins, the appellant testified that the eleven-year-old victim of carnal abuse was lying. He said everything she said was a lie and that her grandmother put her up to it. In that case, this court held that the matter was properly left to the trial judge’s discretion.
Examination of the record in the instant case, however, does not reveal any attack on Elaine Maples’ character for truthfulness. Appellee points us to the appellant’s opening statement and portions of the cross examination of Mrs. Maples as indicating an attack on her character. In his opening statement, appellant’s attorney said, “However, Marvin [the appellant] disagrees with what Mrs. Maples said because it didn’t happen that way.” On cross examination, appellant also asked the victim if she knew who owned the vehicle that appellant had in his possession. The extent of the questioning, as argued by appellee, is as follows:
Q. Are you saying that under oath, you don’t know who owned it?
Mrs. Maples: All I know is it — Marvin told me he paid cash for it.
Q. You don’t know anything about one of his girlfriends owning the car?
Mrs. Maples: (Indicates no.).
Although appellant’s cross examination of Mrs. Maples might be described as vigorous, we do not believe it was the type of “slashing cross examination” contemplated in McCormick, supra, and Collins v. State, supra. It is our view that the trial judge exceeded the bounds of his discretion. Since the jury’s decision necessarily rested on whether they found Mrs. Maples to be a credible witness, we conclude that this error is significant and warrants a new trial. Appellee, the State, concedes that its entire case rested on the truthfulness of the victim.
In his reply brief, appellant points out that appellee cited unabstracted material in its brief. In its brief, appellee, the State, argues that “during his opening statement, appellant questioned the victim’s version of the story, indicating that she would not be truthful.” Appellant then requests that we strike and disregard appellee’s statement or consider the entire text. Appellant cites Merrit v. Merrit, 263 Ark. 432, 565 S.W.2d 603 (1978), as authority. In that case the trial court’s ruling was affirmed because the abstract of the record was flagrantly deficient. It must be noted here that we will not strike arguments for minor violations of Rule 9 of the Rules of the Supreme Court and Court of Appeals of the State of Arkansas, and that we always have the freedom to review and consider the entire record. We have considered the entire record as to the point objected to, and in view of our disposition of this case, the violation is not prejudicial.
Reversed and remanded.
Mayfield, J., dissents.
Cooper, J., concurs. | [
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Donald L. Corbin, Judge.
Appellants, Pat Higgs, Admin-istratrix of the estate of Karen D. Dallas, deceased, and First National Bank of Arkansas, Guardian of Shane Dallas, a minor, brought a wrongful death action in the Circuit Court of Pulaski County against appellee, James D. Hodges. The Pulaski County Circuit Court jury returned a verdict in favor of appellee. We reverse and remand.
On February 26,1982, Karen D. Dallas was driving west on Interstate 40, having just entered the interstate from the entrance ramp of Arkansas State Highway 161. Upon entering Interstate 40, the decedent apparently lost control of her vehicle on an icy overpass. Appellee, also driving west on Interstate 40, had been following the decedent. When the decedent lost control of her vehicle appellee’s vehicle ran into her. The decedent died from the injuries sustained as a result of this collision.
Appellants contend that during the trial of this wrongful death suit, the trial court erred in permitting appellee to elicit from the investigating state trooper his conclusion that appellee was not driving too fast under the conditions and that appellants’ decedent was driving too fast for the conditions. They rely upon the following reasons: (1) The trooper lacked the expertise necessary to form such an opinion; (2) He lacked the information upon which to form such an opinion; and (3) The question of whether either party was traveling too fast under the conditions was a question for the jury to determine based upon the facts and evidence before them. Appellants argue, therefore, that the state trooper should not have been permitted to testify concerning his opinions on these ultimate questions absent some indication that his opinions were based upon information that went beyond the experience and understanding of the average juror.
Whether a witness qualifies as an expert is a matter to be decided by the trial court and, in the absence of abuse of discretion, we will not reverse the trial court’s decision. Beck v. State, 12 Ark. App. 341, 676 S.W.2d 740 (1985). Appellants allege as their first point that the trooper lacked the expertise necessary to form an opinion on whether appellee or the decedent was driving too fast. The record shows that the state trooper was qualified as an expert due to his training and experience. He did observe the impact area, the debris, the position of the vehicles, and the general conditions. We find no abuse of discretion by the trial court in recognizing the trooper as an expert. Therefore, we find that appellants’ first point is without merit.
Appellants, as their second point for reversal, allege that the trooper lacked the information necessary to form an opinion as to the speed of the vehicles involved in the accident. However, this court has held that the strength or lack of strength of the evidence on which the expert’s opinion was based goes to the weight and credibility, rather than admissibility, of the testimony. Arkansas State Highway Commission v. Schell, 13 Ark. App. 293, 683 S.W.2d 618 (1985). Appellants produced an expert to discredit the state trooper’s opinion testimony. Appellants cross-examined the state trooper as to the factual basis for his opinion that the decedent was driving too fast under the conditions and appellee was not. The apparent lack of evidence on which to form the opinion, therefore, went to the weight accorded the opinion testimony by the jury, and not its admissibility.
We reverse the decision of the trial court pursuant to the third point raised by appellants, i.e., that the state trooper should not have been permitted to testify concerning his opinion on the speed issue absent some indication that his opinion was based on information that went beyond the experience and understanding of the average juror. The question before the jury was whether the appellee was driving negligently when he collided with the decedent’s car. This court has dealt with a similar case in which a state policeman was permitted to testify as an expert in accident investigation and reconstruction, Ethridge v. State, 9 Ark. App. 111, 654 S.W.2d 595 (1983). In Ethridge the ultimate issue before the court was whether the appellant recklessly caused the death of the policeman, and the law provides that one acts recklessly when there is a gross deviation from the standard of care that a reasonable person would observe in the same situation. Id. at 115. This Court reversed the trial court’s decision because it found that the expert opinion was inadmissible under Ark. Unif. R. Evidence 702 and 403. Chief Judge May-field, speaking for the court, held:
[Gjiven the same information used by the expert, the jury could answer the [question] as well as he could, and it is the jury’s duty to determine the standard of care of a reasonable person, not the duty of an expert; also, under evidence rule 403 the probative value of [the expert opinion] given in evidence by a member of the Arkansas State Police is substantially outweighed by the danger of unfair prejudice.
Id. at 118. We find that the opinion testimony admitted by the trial court in the case at bar is inadmissible for the same reasons as those given in Ethridge. See also Gramling v. Jennings, 274 Ark. 346, 625 S.W.2d 463 (1981). The state trooper here testified that the only basis for his conclusion that the decedent was speeding was the fact that she lost control of her car. Given the same information, the jury could arrive at a conclusion concerning whether the automobiles involved in the wreck were traveling too fast under the conditions as well as the trooper could. Rule 403 also prohibits the admission of this expert opinion. Even though the credibility of the trooper’s testimony was discredited by appellants’ expert witness, the fact that a state trooper said appellee wasn’t driving too fast and the decedent was driving too fast, tends to have too much weight with a jury. A state trooper’s testimony concerning speed of a car involved in an accident is given a high degree of credibility by the average person. The probative value of the opinion testimony in this case is outweighed by the danger of unfair prejudice. For these reasons we reverse and remand the decision of the trial court.
Reversed and remanded.
Cracraft, C.J., agrees.
Mayfield, J., concurs. | [
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George K. Cracraft, Chief Judge.
Bobby Woodward appeals from his conviction of conspiracy to commit burglary and theft of property for which he was sentenced to three years in the Department of Correction and fined $10,000. He advances five points for reversal in which we find no merit.
The charge against him grew out of a “sting” operation conducted by the Pulaski County Sheriffs Office. Issa Zacharia operated a business in Little Rock under the name of “JR’s Gold and Silver Exchange.” He was approached by Jerry Norman and asked to purchase some admittedly stolen goods. Zacharia did not purchase the items but reported the incident to appellant, a captain in the Sheriffs Department. Norman was known to the Sheriffs Department as a burglar who for some time had successfully eluded arrest. The sheriff authorized appellant to set up the operation in Zacharia’s place of business, and installed video cameras to record purchases of stolen goods from Norman and any associates. The purchased goods were to be delivered to the sheriffs office and returned to the victims after Norman’s arrest.
The State charged that Woodward, Zacharia, Conrad Cardova and others then conspired to prolong the operation and encouraged Norman to commit a number of burglaries and sell the stolen merchandise to them. Norman was shown to be so addicted to drugs that the monetary requirements of his habit were enormous. He burglarized homes at random to obtain the required funds for drugs and would apparently sell the stolen property for any price that was offered. There was testimony that over twenty such burglaries were committed during the period of the conspiracy and that the conspirators had indicated to Norman the type of goods they desired stolen. Norman stated that almost all of the goods stolen by him were purchased by the conspirators. During most of the purchases the cameras were not activated, no inventory of purchases was kept and the stolen goods not delivered to the sheriffs office. Most of the stolen merchandise sold to the sting operation by Norman was resold by Zacharia, Cardova and appellant and the receipts retained by them.
The appellant contends that the operation was a legitimate one set up for the purpose of documenting a case against Norman. He stated that it was continued beyond the initial sales by Norman because other persons had been with Norman when he sold stolen goods at the Gold and Silver Exchange. He contends that they did not arrest Norman while they were investigating the participation of the other persons in the crimes. He contends that Zacharia, Cardova and Norman had entered into the conspiracy without his knowledge or participation. He maintains that when their crimes were discovered, the conspirators falsely involved him in order to obtain leniency for themselves. The jury returned a verdict of guilty. This appeal followed.
Zacharia testified for the State. In his testimony about the activity of the conspirators he discussed a conversation with the appellant regarding appellant’s plan to run for sheriff of Faulkner County. He stated that appellant agreed to continue the operation in Pulaski County as long as it could last as it was very profitable and if elected sheriff he would set up a similar operation in Faulkner County in which Zacharia would participate as a deputy sheriff. The appellant contends that it was error for the trial court not to grant his motion for a mistrial as this evidence was irrelevant and highly prejudicial. He argues it dealt with a separate conspiracy and was not an act in furtherance of the conspiracy.
Zacharia also testified that several days after Norman’s arrest there was a meeting at which Cordova, A1 Simpson and the appellant were present. At this meeting there was a discussion about the disposition of some of the stolen property which was stored at Zacharia’s home. He stated that as a result of that discussion the items were taken out of the house and put in plastic bags to be disposed of the next morning by Simpson. Simpson testified that he attended that meeting and that Cordova, appellant and Zacharia were present. He stated that he was told to remove the items and get rid of them. He did so by throwing them into a creek. “Zach and all of them that were there told me to dispose of them and get rid of them.” The appellant contends that this testimony was not admissible under Unif. R. Evid. 801 (d)(2) (v). He argues that the statements made regarding the continuance of the conspiracy and the establishment of a similar one in Faulkner County were “future plans” and were not acts in furtherance of the common object; that the statements made about the disposition of the stolen property occurred after the conspiracy had terminated, and were not in the furtherance of the conspiracy, but a concerted effort to conceal the crime. We do not agree.
Unif. R. Evid. 801 (d) in pertinent part is as follows:
(d) Statements which are not hearsay. — A statement is not hearsay if:
(2) Admission by a party opponent. The statement is offered against a party and (i) is his own statement in either his individual or representative capacity, (ii) a statement of which he has manifested his adoption or belief in its truth,. . . (v) a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy.
These subsections have different applications. Rule 801 (d)(2)(i) and (ii) deal with oral statements and nonverbal actions of the accused himself. Subsection (v) deals with otherwise hearsay statements of a co-conspirator declarant against the accused. Only the latter is required to be in furtherance of the conspiracy. Statements and nonverbal actions of a party which are offered against the individual declarant are not hearsay but non-hearsay admissions under Rule 801 (d)(2)(i) or (ii).
This distinction is most clearly demonstrated in United States v. Traylor, 656 F.2d 1326 (1981). There the court held admissible those statements made by an accused to the witness as nonhearsay admissions even though not made in furtherance of the conspiracy. It rejected as inadmissible similar statements to the same witness by the appellant’s co-conspirators outside his presence.
Zacharia testified that the appellant had told him that he wished to extend the existing operation as long as it was profitable and to establish a “similar” one in Faulkner County after he was elected sheriff. There were admissions against penal interest by the appellant as to his participation in the acts complained of in the charge and intent to continue them. They were admissible under Rule 801(d) (2) (i).
Simpson testified that “Zach and all of them that were there told me to dispose of them and get rid of them.” If the statement was made by the appellant it would be an admission against interest. Rule 801 (d)(2)(i). If it was made by other persons in his presence it would, under the circumstances outlined, constitute a tacit or adopted one. Rule 801 (d)(2)(H).
In support of his objection to the statements of Zacharia and Simpson regarding disposition of the property made after the conspiracy ended, appellant relies on Smith v. State, 6 Ark. App. 228, 640 S.W.2d 805 (1982) and Krulewitch v. United States, 336 U.S. 440 (1949) which hold that statements by co-conspirators made after the conspiracy has ended are not admissible because the hearsay exception applies only to acts in furtherance of the conspiracy and “does not extend to concerted efforts to conceal the crime.” This reliance is misplaced. In both cases the excluded statements were made by co-conspirator declarants and were not, as here, attributed to the accused. We find no error in the trial court’s ruling.
During the cross-examination of Art Copeland he was asked if he had ever stated that Zacharia asked him to “back him up” on everything he might say. Copeland denied making such a statement. During examination, appellant was permitted without objection to state that Copeland had made such a statement to Woodward in the course of the investigation. He further stated that he had a tape recording of the conversation in which the statement was allegedly made by Copeland. Appellant contends that it was error for the trial court to refuse to admit the tape recording into evidence for the purpose of impeaching the witness. Even if the tape recording was admissible for some purpose, appellant has not pointed out how he was prejudiced by the ruling.
Woodward had already testified that the statement had been made to him by Copeland. Although from the context of the questions it is apparent that it was expected to contain the statement attributed to Copeland, we do not know what else might have been said in the conversation. The conversation took place during the investigation of the crimes. The record contains no offer to edit out those parts of the conversation which did not relate to the statement in issue. We find no prejudicial error in refusing to admit the recording of the entire conversation.
Appellant next contends that the trial court erred in refusing two requested instructions approved in Devitt & Blackmar, Federal Jury Practice and Instructions. The first would have told the jury that the testimony of an informer who provides evidence for immunity from punishment must be examined with greater care than that of the other witnesses. The second would have told the jury that where the informer is also a narcotics addict, his testimony should be even more carefully examined because he might have an abnormal fear of imprisonment where his supply of drugs would not be available.
The trial court properly rejected the instructions for at least two reasons. First they contain comments on the evidence, a practice permitted in Federal courts but not in ours. Secondly, the offered instructions are not included in our Model Instructions on Criminal Law. The Court gave our approved instruction on credibility of witnesses. The purpose of the Model Instructions is to avoid confusing the jury. Even if an offered instruction contains a correct statement of the law it is not error for the trial court to refuse to give it where its subject is covered in an approved one. Conley v. State, 270 Ark. 886, 607 S.W.2d 328 (1980). Here the trial court gave our model instruction which told the jury that it might consider the evidence in the light of their own experience and take into consideration a witness’s means of acquiring knowledge, interest in the outcome of the litigation and any other fact or circumstance tending to shed light on the truth or falsity of the witness’s testimony. Furthermore, in closing argument defense counsel was permitted to argue that the testimony of an informer seeking leniency lacked credibility and to point out the effect of drug abuse on the mind and memory of the witness and other reasons why an addict’s testimony might not be reliable.
Appellant finally contends that the evidence was not sufficient to sustain the conviction. He does not argue that the testimony of his co-conspirators did not show a conspiracy and overt acts in furtherance of it. He argues only that there was insufficient corroborating evidence tending to connect him with those crimes independent of the testimony of the co-conspirators.
Ark. Stat. Ann. § 43-2116 (Repl. 1977) provides that a felony conviction cannot be had upon the testimony of accomplices unless corroborated by other evidence tending to connect the defendant with the commission of the offense. The cor roborating evidence need not be sufficient to sustain the conviction but need only tend in some degree to connect the defendant with the crime independently of the testimony of the accomplice. Costen v. State, 10 Ark. App. 242, 663 S.W.2d 187 (1984).
Zacharia testified that he and appellant conspired to encourage Norman to commit numerous burglaries by offering to purchase all of the goods he might steal. It was stipulated that during the period in question a number of homes were burglarized and listed items stolen. Norman admitted on the witness stand and in extra-judicial statements to the police that he had committed the burglaries and sold all or almost all of the stolen goods to JR’s Gold and Silver Exchange. Some was sold to Zacharia, some to appellant, and some to both of them.
According to Zacharia, he and appellant conspired to dispose of much of the stolen goods for their own profit by failing to activate the cameras or inventory the purchased property. Pursuant to that agreement much of the silver and gold was melted into ingots and sold in the precious metal market. Other merchandise was sold elsewhere and the proceeds divided. Suffice it to say the evidence of the accomplices was more than ample to sustain the conviction if the requirements of independent corroboration was met. The court instructed the jury that Norman and Zacharia were accomplices as a matter of law, and that their testimony must be corroborated.
Diane Locklear testified that she had frequented JR’s Gold and Silver Exchange during the period of the conspiracy and became friends with appellant, Cordova and Zacharia. She stated that she knew that they were conducting a sting operation for the sheriff. She stated that on one occasion the appellant admitted to her that he had taken some stolen merchandise “off the top on the supposed sting operation that had been set up in that location.”
Art Copeland testified that he also frequented the place during that period and had seen appellant, Zacharia and Cordova purchase merchandise from Norman. He stated that after he had learned that the officers were conducting a sting operation there, he expressed an interest in buying some of the goods brought in by Norman. He stated that appellant answered that “for the right price” he could purchase it.
There was evidence from other witnesses that during this period they observed the appellant and Zacharia melting gold in an outbuilding on appellant’s property. There was evidence from the sheriffs office that video tapes were not made on most of the buys and there were discrepancies between the amount of goods reported stolen from the homes burglarized by Norman and that turned over by appellant to the sheriff.
Appellant argues that Locklear was unreliable because of an alleged involvement in prostitution. Her credibility was a question for the jury to resolve. He also argues that she was an accomplice because she had originally been indicted as a co-conspirator. That charge against her had been dismissed and we find nothing in the record tending to connect her with either the conspiracy or the crimes committed in furtherance of it. Appellant also argues that Simpson was an accomplice whose testimony should be corroborated. Although Simpson did help dispose of some of the stolen good after the conspiracy ended, he denied any involvement in the conspiracy and acts in furtherance of it. Ordinarily the question of whether a witness is an accomplice is a mixed question of fact and law and must be submitted to the jury where the evidence is in dispute. Robinson v. State, 11 Ark. App. 18, 665 S.W.2d 89 (1984). The trial court properly instructed the jury on this issue. From our review of the entire record we cannot conclude that the jury’s verdict was not supported by substantial corroborative evidence tending to connect appellant to the crimes testified to by his co-conspirators and accomplices.
Affirmed.
Mayfield and Glaze, JJ., agree. | [
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Per Curiam.
In a per curiam opinion dated May 2,1984, see 11 Ark App. 308, we stated that it had become necessary, in attempting to keep our docket current, to increase the number of cases submitted each week and to employ, under the authority of Supreme Court and Court of Appeals Rule 21, the use of brief memorandum opinions not designated for publication. We are today modifying the per curiam opinion of May 2,1984, to give notice that hereafter memorandum opinions may be issued in any or all of the following cases:
(a) Where the only substantial question involved is the sufficiency of the evidence;
(b) Where the opinion, or findings of fact and conclusions of law, of the trial court or agency adequately explain the decision and we affirm;
(c) Where the trial court or agency does not abuse its discretion and that is the only substantial issue involved; and
(d) Where the disposition of the appeal is clearly controlled by a prior holding of this court or the Arkansas Supreme Court and we do not find that our holding should be changed or that the case should be certified to the supreme court.
These cases will be submitted as “extra” cases and will not affect the disposition of cases entitled by law to preferential submission. Memorandum opinions may also be used in other cases from time to time, but an opinion in conventional form will be issued in any case where the court deems it necessary or desirable. | [
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Tom Glaze, Judge.
Appellant was convicted of burglary and sentenced to five years in the Arkansas Department of Correction. Appellant contends that she was convicted solely on the uncorroborated testimony of an accomplice and that her conviction should be reversed and dismissed. We affirm.
The Vandiver home was burglarized on 8 March 1984. The family discovered the break-in when they returned home from an out-of-town trip. The evidence showed that there were pry marks on the back door of the residence and that numerous items of personal property were missing. In addition, Mrs. Vandiver’s car had been burned.
The State’s main witness, Jay Lasiter, testified that he and appellant went to the Vandiver home on the night of March 8, and that after he quieted down the family’s dogs, appellant entered the residence. Lasiter further testified that, when appellant exited the house, she was carrying a garbage bag full of different items, including clothing. He stated that he, appellant and a person named “Buddy” went back to the Vandiver house, and while he again stayed outside, appellant and “Buddy” went inside, and later came out with more property. Lasiter testified that, later that night, appellant asked him if he had any gasoline at his house. He told appellant he did, and she asked him to meet her later at the Vandiver’s. Lasiter testified he saw appellant at the Vandiver’s, where a car was on fire. Lasiter said that, on the following day, he and appellant decided to call the Vandiver’s answering service and implicate someone else in the crimes.
Where the State relies on the testimony of an accomplice to support a conviction, that testimony must be corroborated by other evidence which tends to connect the accused with the commission of the offense, and it is not sufficient to show that the offense was committed and the circumstances of the offense. Ark. Stat. Ann. § 43-2116 (Repl. 1977). The test for determining whether the corroborating evidence is sufficient is if, taken independently of the accomplice’s testimony, the evidence establishes the crime and tends to connect the accused with its commission. Linell v. State, 283 Ark. 162, 671 S.W.2d 741 (1984); Walker v. State, 13 Ark. App. 124, 680 S.W.2d 915 (1984). Here, the evidence clearly shows that a burglary was committed, but appellant contends that, outside of the testimony of Jay Lasiter, the State failed to connect her with the burglary.
The State’s evidence connecting appellant with the crime centers on the testimony of Mrs. Vandiver and her fourteen-year-old son, Michael. Both testified that, while they were driving down a street in their neighborhood, about one month after the burglary, they saw appellant wearing a hat and jacket that belonged to Michael. They said these articles were in their house before the burglary. Michael testified that, when he asked the appellant where she had gotten the hat and jacket, she replied that she must have gotten them from Jay Lasiter. Appellant submits on appeal that, because there were inconsistencies in Mrs. Vandiver’s and Michael Vandiver’s descriptions of the hat and jacket, there was no substantial evidence that the items in appellant’s possession were those stolen from the Vandivers, and therefore, there was no sufficient corroborating evidence connecting her with the crime.
Appellant acknowledges that it is proper to consider possession of stolen property by the accused in determining whether there is sufficient corroborating evidence tending to connect the accused with the crime of burglary. See Thacker v. State, 253 Ark. 864, 489 S.W.2d 500 (1973). That rule, appellant argues, is not conclusive here because the possession of stolen property is not sufficient, standing alone, to corroborate the testimony of the accomplice, when the property is not sufficiently identified at trial. In support of her argument, she relies on Scott v. State, 63 Ark. 310, 38 S.W.2d 339 (1896) and Olles v. State, 260 Ark. 571, 542 S.W.2d 755 (1976). In Scott, except for the accomplice’s testimony, the State was unable to connect the defendant with the stealing of some ladies’ dresses, gowns and underwear. While two witnesses testified that Scott, one day after the crime, offered to sell them a dress and some ladies’ underwear, there was no evidence identifying those clothes as part of the women’s wear stolen earlier. The court, finding the witnesses’ testimonies insufficient corroborating evidence, held accordingly that the accomplice’s testimony was insufficient to connect Scott with the crime. The Olles decision turned on an entirely different series of events. There the accomplice testified that she, her uncle and Olles committed a burglary. The only circumstance connecting Olles with the crime was that some of the stolen merchandise was recovered from his and the accomplice’s home. The supreme court held that the mere fact that some of the stolen goods were recovered from the dwelling shared by the accused and the accomplice, whose participation in the crime was admitted, was not sufficient corroboration, standing alone, even though it certainly would arouse a suspicion. 260 Ark. at 576.
The instant case is unlike either Scott or Olles. Mrs. Vandiver and her son testified the appellant was wearing a hat and jacket that belonged to Michael and that these clothes were missing since the burglary. No discrepancy appeared in their description of the hat worn by appellant although Michael described the jacket worn by appellant as a “red Ocean Pacific” jacket and his mother identified it as a “red Izod.” While Mrs. Vandiver and Michael gave slightly different descriptions of the stolen jacket, it is a settled rule that the resolution of inconsistencies in the evidence adduced at trial, and the credibility of witnesses and the weight to be given their testimony, is wholly within the province of the jury. Thomas v. State, 266 Ark. 162, 583 S.W.2d 32 (1979).
The evidence submitted in corroboration of the accomplice’s testimony does not have to be sufficient by itself to convict, but it must tend, to a substantial degree, to connect the defendant with the commission of the offense. Coston v. State, 10 Ark. App. 242, 663 S.W.2d 187 (1984). The jury was free to accept or reject Lasiter’s story, Jones v. State, 11 Ark. App. 129, 668 S.W.2d 30 (1984), and to determine that the clothing the appellant was wearing had been sufficiently identified as belonging to Michael Vandiver. On appeal, a jury’s verdict will not be disturbed if it is supported by substantial evidence. Tackett v. State, 12 Ark. App. 57, 670 S.W.2d 824 (1984). We cannot conclude that the verdict of the jury was not supported by substantial evidence, and therefore, we affirm.
Affirmed.
Cracraft, C.J., and Mayfield, J., agree.
The Vandivers both identified the hat as one purchased at a Hot Spring’s store; their testimony differed only in that Mrs. Vandiver recalled it was the only one like it in the store while Michael believed others were available. | [
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Lawson Cloninger, Judge.
Appellant was charged with two counts of battery in the second degree, Ark. Stat. Ann. § 41-1602 (l)(d)(iii) (Supp. 1985). The charges arose from incidents involving the two minor children of appellant’s girl friend. The two charges were severed for trial and the jury returned a guilty verdict for the battery of Jamie Holmes, age 4. At the judgment and commitment hearing, appellant pled guilty to the second degree battery of the other child, John Holmes. Appellant was sentenced to five years for the second degree battery of Jamie and four years, with two years suspended, for the second degree battery of John, the sentences to run consecutively.
Appellant contends that during his trial on the charge relating to Jamie, the trial court abused its discretion when it permitted a photograph of the bruises on John’s buttocks and thighs to be admitted into evidence. Appellant further states that this evidence of a prior act was highly prejudicial and was not outweighed by its probative value. We disagree, and finding no abuse of discretion, affirm.
While in appellant’s care, Jamie Holmes sustained first and second degree burns to his ankles and the tops of his feet. At first appellant explained that Jamie was accidentally burned by hot water in the bathtub. Appellant later confessed to Detective Barnes of the Rogers Police Department that he had placed Jamie in a tub of hot water and held him there as punishment for playing in the mud. At trial appellant refuted his confession, retold the accident story, and claimed that he loved his girl friend’s children and would not intentionally harm them. At that point the State began to question appellant about a spanking he had given Jamie’s younger brother, John. Appellant admitted spanking John, and stated that he did not know he had bruised him until he had been shown a picture. The trial court then admitted into evidence, over appellant’s objection, a picture of John that showed severe bruises covering his buttocks and thighs.
We hold that the trial court was justified in finding that the evidence regarding the injuries suffered by John was admissible. Ark. Stat. Ann. § 28-1001, Rule 404(b) (Repl. 1979), provides:
Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
In Limber v. State, 264 Ark. 479, 572 S.W.2d 402 (1978), the Arkansas Supreme Court held that evidence of the abuse of another child in the household is relevant and admissible under Rule 404(b) to show whether there existed an intent to abuse and the absence of mistake or accident.
Granted, the picture of John is shocking and prejudicial. However, the danger of unfair prejudice created by a photograph must substantially outweigh its probative value before we will exclude it. Williams v. State, 267 Ark. 527, 593 S.W.2d 8 (1979). The photograph in question clearly shows that this was not a routine spanking as appellant implies. The jury could conclude that John had been severely beaten, and this fact is highly probative of the issue of appellant’s intent and lack of mistake or accident. Even inflammatory photographs are admissible if they tend to shed light on any issue. Perry v. State, 255 Ark. 378, 500 S.W.2d 387 (1973). The introduction of photographic evidence is a matter within the discretion of the trial judge and we will not reverse a trial court’s ruling with respect to relevance absent an abuse of discretion. Stevens v. State, 15 Ark. App. 357, 693 S.W.2d 64 (1985). We find no abuse of discretion in this case.
Affirmed.
Glaze and Cooper, JJ., agree. | [
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Melvin Mayfield, Judge.
In July of 1984, appellant pled guilty to a charge of violating Ark. Stat. Ann. § 41-2304 (Repl. 1977), defrauding a secured creditor. Imposition of sentence was suspended and appellant was placed on probation for five years. In September of 1984, the state filed a petition for revocation of appellant’s probation and a bench warrant was issued for his arrest. The petition alleged numerous violations of the probation conditions, including failure to keep the probation officer advised of appellant’s changes of address.
On November 14,1984, the appellant was arrested in Texas as a “fugitive from justice.” On November 20, 1984, he was picked up in Texas by the Arkansas authorities and taken to the Polk County, Arkansas, jail.
A hearing on the petition for revocation was originally scheduled for January 9, 1985, but at the state’s request, the hearing was continued until January 16, 1985. On January 15, the appellant filed a motion to dismiss based on Ark. Stat. Ann. § 41-1209(2) (Repl. 1977), which requires revocation hearings to be held “within a reasonable period of time, not to exceed sixty days, after the defendant’s arrest.” At the hearing on January 16, the court denied the appellant’s motion to dismiss, found that appellant had violated six conditions of his probation, and sentenced the appellant to five years imprisonment.
On appeal, the appellant argues that the trial court erred when it failed to grant his motion to dismiss since the revocation hearing was not held within sixty days after his arrest on November 14,1984, as required by Ark. Stat. Ann. §41-1209(2). In response, the state argues that the sixty-day limitation did not begin to run until November 20, 1984, the day appellant was returned to Arkansas. The state characterizes the six days after appellant’s arrest in Texas on November 14 as an “excludable period of time” from the sixty-day limitation because for those six days appellant was unavailable for trial.
We agree with the state. The Arkansas Supreme Court has expressed its willingness to look to the provisions of A.R.Cr.P. Rule 28.3 for guidance in computing excludable periods of time from the sixty-day limitation required for revocation hearings. See Lark v. State, 276 Ark. 441, 637 S.W.2d 529 (1982). Rule 28.3 provides in part:
The following periods shall be excluded in computing the time for trial:
(e) The period of delay resulting from the absence or unavailability of the defendant. A defendant shall be considered absent whenever his whereabouts are unknown. A defendant shall also be considered unavailable whenever his whereabouts are known but his presence for the trial cannot be obtained or he resists being returned to the state for trial.
We think-the court was correct in finding that appellant was unavailable for trial while he was in the custody of the Texas authorities as there is no evidence that the six-day delay before appellant was returned to Arkansas was caused by neglect on the part of the State of Arkansas. To the contrary, the record indicates that a fugitive bond was set by a court in Texas and that this procedure would not have been necessary if appellant had promptly waived extradition to Arkansas. Thus, it would appear that any delay in returning appellant to Arkansas was caused by the appellant. His hearing was held within sixty days of his return and we think the trial court correctly denied his motion to dismiss.
Affirmed.
Cracraft, C.J., and Cloninger, I., agree. | [
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Melvin Mayfield, Judge.
Appellant was principal of the Hampton High School when, in February, 1983, the school’s Board of Directors voted to offer him a new contract for the 1983-84 and 1984-85 school years. Appellant signed the contract on March 8,1983, after directing the bookkeeper in the superintendent’s office to add a provision to it under which he would receive rent-free housing. (His current contract provided for rent-free housing.) The contract was subsequently signed by the president of the school board, but the secretary of the board refused to sign it. After a meeting of the board held on March 14, 1983, the appellant was notified that the superintendent would recommend that his contract not be renewed for the next year; and at a June 23, 1983, meeting, the school board accepted the superintendent’s recommendation.
Shortly after appellant’s contract was nonrenewed, he filed suit alleging that he had a valid two-year contract which appellees had breached. The trial court held that Ark. Stat. Ann. §§ 80-1304 and 80-509(d) (Repl. 1980) required that a teacher’s contract must be in writing, signed by both the secretary and the president of the school board, or a majority of the members of the board, and since neither the secretary of the board nor a majority of the members of the board had signed appellant’s proposed contract, no contract had been created.
On appeal to this court, it is argued that the trial court erred in holding that appellant did not have a valid and enforceable two-year employment contract. Appellant contends that by signing and returning the contract to the school board president, who also signed it, a valid and enforceable contract was created. Appellant relies on Head v. Caddo Hills School District, 277 Ark. 482, 644 S.W.2d 246 (1982), as inferring that “the contract issued Head and signed by him even though it was not accepted by the School District was in fact a valid contract.” We do not believe Head supports that contention.
Head had been issued a contract and had signed it, but before it was accepted by the school board, he was notified that his contract would not be renewed. However, under a section of The Teacher Fair Dismissal Act of 1979, Ark. Stat. Ann. § 80-1264.3 (Repl. 1980), his contract was automatically renewed because he had not been notified during the term of his contract, or within ten days after the end of the school year, that his contract would not be renewed.
In the present case, however, the question of an automatic renewal is not involved. Here, the court held, and the appellant agrees, the issue is whether a valid and enforceable contract existed even though the secretary of the board had not signed it. We believe that the controlling case on this issue is Johnson v. Wert, 225 Ark. 91, 279 S.W.2d 274 (1955). In that case the school board had voted to give Johnson, its superintendent, a two-year contract, but before the formal contract was prepared, one of the board members asked Johnson to resign. He refused to resign, and subsequently had a secretary in the County School Supervisor’s office prepare a contract on a regular form prescribed by the State Board of Education and which contained blank spaces for the signature of Johnson and the president and the secretary of the board of directors of the school. Johnson signed the proposed contract and then obtained the signature of the board secretary. A few days later, the school board rescinded its action to rehire appellant and thereafter, when requested to do so, the president of the school board refused to sign appellant’s contract.
Johnson filed suit alleging a breach of contract and the trial court held that the majority vote of the board to employ Johnson for a term of two years “did not of itself constitute a valid contract, in that subsequent to that time there must have been entered between the parties by mutual consent and understanding a written contract of employment, because the law requires that it be done.” In affirming the trial court in that case, the Arkansas Supreme Court stated:
The election of appellant for a new two-year term on February 27, 1953, was merely preliminary to the further requirement that a valid written contract in the form prescribed by the State Board of Education be executed. Under the undisputed evidence this second and final step essential to support a recovery of compensation was never met, and the trial court correctly directed a verdict in favor of appellees.
Appellant attempts to distinguish the Johnson case, but we do not think those distinctions are pertinent to the issue involved in the instant case. Here, no written contract was signed by a majority of the school board members, or for the board by both its president and secretary. Therefore, appellant had no contract which the board could breach.
Appellant also submits that the board’s vote not to renew his contract was in violation of his rights to due process under the United States and Arkansas Constitutions. However, since no valid contract was ever created, no property interest arose and there was no violation of appellant’s constitutional rights. See Board of Regents of State Colleges v. Roth, 408 U.S. 564 (1972), and Gillespie v. Board of Education of North Little Rock, 528 F. Supp. 433 (E.D. Ark. 1981).
Affirmed.
Cracraft, C.J., and Corbin, J., agree. | [
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Tom Glaze, Judge.
In this eminent domain case, appellant appeals from a jury verdict and judgment in favor of appellee for $108,000.00. For reversal, appellant contends that the trial court erred in (1) permitting questioning and testimony as to the development and planned expansion of the business located on the property in question, and (2) denying motions to strike the testimony of a part-owner of the appellee and one of appellee’s expert witnesses. We affirm.
In 1977, appellee purchased a tract of land south of Bates-ville on Highway 25, on which it began operating a trucking terminal. In October 1983, appellee purchased 5.98 acres east of and adjacent to the existing property, bringing the total tract to approximately ten acres. On May 24,1984, appellant condemned 1.21 acres across the property, dividing it into two sections. Appellant deposited $58,500.00 into the court registry as estimated compensation for the taking.
Appellant’s first point for reversal is that the trial court erred in permitting testimony pertaining to the development and planned expansion of appellee’s business over appellant’s objections. Appellant contends that, because it stipulated that the highest and best use of the property was for commercial purposes, there was no justification for this line of questioning. We disagree.
The latitude allowed the parties in bringing out collateral and cumulative facts to support value estimates made by witnesses is left largely to the discretion of the trial judge. Garner v. Arkansas State Highway Commission, 5 Ark. App. 134, 633 S.W.2d 710 (1982). A landowner is entitled to show every advantage that his property possesses, present and prospective, to have his witnesses state any and every fact concerning the property which he would naturally adduce in order to place it in an advantageous light if he were selling to a private individual, and to show the availability of this property for any and all purposes for which it is plainly adopted or for which it is likely to have value and induce purchases. Arkansas State Highway Commission v. First Pyramid Life Insurance Company of America, 269 Ark. 278, 602 S.W.2d 609 (1980). The credibility of witnesses is a matter to be determined by the jury, and jurors are accorded great latitude in considering testimony as to damages. Their verdict will not be set aside as excessive unless it is not supported by proof, or is so excessive as to indicate passion, prejudice, or an incorrect appreciation of the law applicable to the case. Arkansas State Highway Commission v. Carder, 228 Ark. 8, 305 S.W.2d 336 (1957).
Appellant cites Arkansas State Highway Commission v. Leavell, 246 Ark. 1049, 441 S.W.2d 99 (1969), for the proposition that we are to be concerned with only the present market value, “and not those values based upon speculative anticipation of future development.” (Emphasis added.) The Leavell court, however, went on to say that, while consideration must be given to existing uses, “it cannot be seriously argued that present usage is the guideline.” 246 Ark. at 1053. There, testimony was presented that the highest and best use of a tract being used as farmland was for residential purposes because the city was expanding in that direction. The court held that it was proper to value the land for building purposes if those uses had an effect on the present market value of the land.
Here, appellee offered testimony to show that the highest and best use of the property was as a trucking terminal. Prior to the condemnation, appellee had started expansion of its existing terminal onto its adjacent and newly-acquired tract of land. Appellee also had purchased 120 new tractors and 110 new trailers, and additional facilities were planned to accommodate them. We believe the trial court correctly ruled this testimony was admissible for the jury to consider when determining the tracts’ highest and best use. See Arkansas State Highway Commission v. Arkansas Real Estate Company, Inc., 251 Ark. 96, 471 S.W.2d 340 (1971) (wherein the court upheld the admission of testimony concerning the intended development of a piece of property when the owners had begun effecting their plans before the time of taking).
Appellant’s second point for reversal is that the trial judge erred in denying motions to strike the testimony of Gene Carter, a part-owner of appellee, and Gary Ennis, one of appellee’s appraisal experts. It claims Carter and Ennis erroneously testified that they damaged the remaining lands and improvements because of interference with the appellee’s business.
Carter owns fifty percent of the stock of appellee and has been a stockholder since 1982. His testimony dealt with the history of the company and its development, the need for expanded facilities, the nature of the land in question, and the problems which would be encountered once the new highway was completed. He never testified to any monetary damages sustained by the company.
Ennis, however, depreciated the value of the property twenty percent due to its single-purpose nature. Because of the specialized facilities existing on the property, he stated that such a depreciation was necessary to give the property “appeal in the marketplace.” His estimate of the value of the land taken and damage to the remainder was $261,438.00.
On direct examination, Ennis did not include damage to the business in his computations, except to describe the land as a single-purpose-use tract. On cross examination, he denied that he used frustration of the intended use of the land as an element of damage. Later on cross, after some confusion as to whether Ennis understood the questions he was being asked, the following exchange took place:
Q. You depreciated the value of the lands out there because of our interference with the trucking business, is that correct?
A. Yes, Sir.
Appellee’s counsel promptly objected to the form of the question asked, stating, “[Tjhere has been no testimony that the business has been interfered with.” Appellant then moved to strike Ennis’ testimony as to damages. The trial judge, noting Ennis’ testimony on direct, said that Ennis had dealt with the single-purpose nature of the land — not with damage to the business. The judge stated that, while he would not limit appellant’s cross examination, he would not strike Ennis’ testimony because appellant’s counsel injected the business-damage issue by his questioning. The judge then denied appellant’s motion. We note that, prior to trial, the judge had properly ruled that damage to the business was not a proper element, and throughout the trial, he was careful to keep such evidence from being admitted.
For reversal, appellant cites Arkansas State Highway Commission v. Wallace, 247 Ark. 157, 444 S.W.2d 685 (1969). There, the landowner testified that she considered, as an element of damage, the fact that her husband was no longer in the dairy business on the property. In reversing the trial court, the supreme court held the landowner’s loss of business was not a proper element to be considered.
We fail to see how Wallace is applicable to Carter’s testimony because he gave no damage testimony. Concerning Ennis’ testimony, we believe Wallace is distinguishable. In Wallace, it was clear that the landowner’s value testimony improperly included loss of business as an element of damage. Here, the parties agreed (and the court ruled) that damage to business was not a proper element of damage. In previous testimony, Ennis specifically stated he had not included frustration to the business as an element. Instead, he properly testified to the single-purpose nature of the property and its highest and best use. It was only during a confused exchange on cross examination that Ennis — contrary to his earlier testimony — stated he depreciated the property because of appellant’s interference with appel-lee’s business.
It is well settled that a motion to strike the entire testimony of a witness is properly denied where any part of that testimony is admissible. Arkansas Louisiana Gas Co. v. James, 15 Ark. App. 184, 292 S.W.2d 761 (1985). Here, except for the questionable response by Ennis on cross examination, his testimony on value was otherwise admissible. We note that the bulk of Ennis’ testimony was consistent with the testimony of appellee’s two other experts. Appellant did not object to their testimony. Under these circumstances, we cannot say the trial judge abused his discretion by denying appellant’s motions to strike the testimony of Carter and Ennis, and, therefore, affirm.
Affirmed.
Cloninger and Mayfield, JJ., agree.
Appellant cites United States v. Miller, 317 U.S. 369 (1943), which states that special adaptability of land for its owner’s use must be disregarded in arriving at “fair” market value. This case involved a railroad taking pursuant to a federal statute. We find no Arkansas cases which apply the Miller standard to takings under Arkansas law. | [
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George K. Cracraft, Chief Judge.
Sterling Stores bring this appeal from a decision of the Workers’ Compensation Commission authorizing a change from a physician initially selected by Kathy Deen. We find no error in the action of the Commission and affirm.
Appellee sustained a compensable injury on April 19, 1980 while employed by appellant. She was treated by physicians of her own selection until 1983. In September 1983 appellee petitioned the Commission for authority to change physicians on the ground that her selected physician refused to see or treat her further and submitted proof that further medical treatment was essential. She contended that the change was authorized under Ark. Stat. Ann. § 81-1311, as amended in 1981, which permits such a change from a selected physician on showing of a compelling reason or circumstance justifying the change. The appellants contend that as appellee’s injury was sustained prior to the effective date of the 1981 amendment, she should not change from a physician initially selected by her under the law in effect on the date of injury. The Commission resolved that issue in the following language:
The first question which must be answered is whether this case is governed by Ark. Stat. Ann. § 81 -1311 as amended by Act 253 of 1979 or §81-1311 as amended by Act 290 of 1981. The answer to this question must be ascertained from a review of the decisions by the Arkansas Court of Appeals in Popeye’s Famous Fried Chicken v. Willis, 7 Ark. App. 167, 646 S.W.2d 17 (1983); Continental Grain Company v. Miller, 9 Ark. App. 317, 659 S.W.2d 517 (1983); and American Transportation Co. v. Payne, 10 Ark. App. 56, 661 S.W.2d 418 (1983). After reviewing these cases, we are of the opinion that the Popeye decision was not overruled by either Continental Grain Company or American Transportation Company decision. Accordingly, we find Ark. Stat. Ann. § 81-1311 as amended by Act 290 of 1981 as the governing law.
Following our opinion in Popeye’s Famous Fried Chicken v. Willis, 1 Ark. App. 167, 646 S.W.2d 17 (1983) the Commission found that the required compelling reason existed and authorized the change of physicians.
Appellants argue on appeal that the Commission erred in following Willis. They contend that our decision in Willis was an erroneous application of the law and has been reversed by implication in Union Medical Center v. Brumley, 4 Ark. App. 370, 631 S.W.2d 618 (1982); Continental Grain Company v. Miller, 9 Ark. App. 317, 659 S.W.2d 517 (1983); Revere Copper and Brass, Inc. v. Talley, 1 Ark. App. 234, 647 S.W.2d 477 (1983); Artex Hydrophonics v. Pippin, 8 Ark. App. 200, 649 S.W.2d 845 (1983); and American Transportation Co. v. Payne, 10 Ark. App. 56, 661 S.W.2d 418 (1983). Appellants request we expressly do so now. We conclude that our opinion in Willis was a sound one and reaffirm it.
In Willis the claimant sustained a compensable injury before the effective date of the 1981 amendment. She was treated by a physician of her own choice until April 10, 1981 (after the effective date of the 1981 amendment) when her doctor indicated that he had no further treatment to offer her and suggested to her attorney that she be referred to another surgeon. She then petitioned for a change of physicians. The Commission ruled that when the request to the Commission for authority to change physicians was made the 1981 Act was in effect and was not limited to prospective application and authorized the change. We affirmed and relying on Aluminum Co. of America v. Neal, 4 Ark. App. 11, 626 S.W.2d 620 (1982) and State ex rel. Moose v. Kansas City & Memphis Railway & Bridge Co., 117 Ark. 606, 174 S.W. 248 (1914), we held that the rules of strict construction do not apply to remedial statutes which do not disturb vested rights or create new obligations but only supply a new or more appropriate remedy to enforce an existing right or obligation. Those statutes should be given a retrospective effect whenever it seems to be the intention of the legislature.
The appellants argue that our decision was wrong because the new act did create new rights and obligations. Appellants argue that before the effective date of the 1981 amendment the claimant could not obtain a change of physicians at the employer’s expense unless she met five prerequisites contained in Rule 21 of the Workers’ Compensation Commission, one of which was “the claimant is not seeking to change physicians from one of his own choice, previously selected by the claimant.” Appellants further contend that subsequent to the 1981 amendment one may now make that change as a new right and as a new obligation.
We rejected that argument in Willis. There we pointed out that our workers’ compensation law has contained a provision allowing the Commission to authorize a change of physicians since its inception. The manner and circumstances under which the change could be effected has been revised on several occasions.
Even during the effective period of the 1979 amendment there were conceivable circumstances under which the Commission might authorize a change of physicians from one initially selected by the employee. The prohibition against changing such physicians was not a statutory one. It was contained in a rule of the Commission from which it could deviate when compliance with it was impractical or impossible. Rules of the Arkansas Workers’ Compensation Commission Rule 23; Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982); Continental Grain Company v. Miller, supra. The facts of this case might well be such a situation in which a claimant’s selected physician refused to further treat him and it is shown that further treatment is absolutely necessary, but unobtainable except at the employee’s expense. The Commission could deviate from Rule 21. The 1981 amendment simply makes it easier for the Commission to afford an existing remedy where there is such a compelling reason or circumstance justifying the change.
Nor do we find any inconsistency in our decisions subsequent to Willis. Union Medical Center v. Brumley, supra, and Continental Grain Company v. Miller, supra, are clearly distinguishable. In Willis, Brumley and Miller the injuries were sustained prior to the effective date of the 1981 Act. However, unlike Willis, in both Brumley and Miller the claimants sought to exercise their right to change physicians before that date. In all three cases we held the date of the injury to be immaterial and applied the law in effect on the date the changes were made. In American Transportation Co. v. Payne, supra, both the injury and application for change occurred after the 1981 Act was effective. We reversed because the Commission had not taken the emergency clause into account and had applied rules no longer in effect. In Artex Hydrophonics v. Pippin, supra, we considered the third appeal from a change of physicians made in 1977. We ruled that the law in effect in 1977 governed. The issue was not presented in Revere Copper and Brass, Inc. v. Talley, supra. In that case the issue was not what law governed the change of physicians but the effect an unauthorized change had on the admissibility of the physician’s testimony.
It was our intent in those cases to hold that the date of the injury is immaterial. The 1981 amendment is not limited in application to those workers whose injuries are sustained after its effective date, but is limited to changes in physicians made after that date. Ordinarily, however, it cannot be retroactively applied to ratify a change which was unauthorized at the time such change was actually made.
Affirmed.
Cloninger and Mayfield, JJ., agree.
The effective date of the 1981 amendment was March 3,1981. A discussion of the changes it made in the law is not necessary to our decision in this case. It suffices to say that under the law in effect prior to March 3,1981, a change of physicians in this case might not be authorized. Under the law in effect after that date the action of the Commission would be correct. | [
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James R. Cooper, Judge.
The central issue on appeal in this unemployment compensation case is whether there is substantial evidence to support the Board of Review’s finding that the appellant employee was discharged from his job for provoking a fight with a co-worker. For the reasons enumerated below, we affirm.
The appellant applied for unemployment benefits several days after he was discharged for fighting on the job. The Employment Security Division denied his claim for benefits on a finding that he was disqualified under the provisions of Ark. Stat. Ann. Section 81-1106(b)(2) (Repl. 1976), which disqualifies a claimant from receiving benefits where he has been discharged for misconduct in connection with the work on account of willful violation of the employer’s rules or customs pertaining to the safety of fellow employees. The Appeal Tribunal heard further evidence and affirmed the agency’s finding that the appellant was fired for provoking a fight with a fellow worker. The Board of Review affirmed the tribunal’s decision. From that decision, comes this appeal.
On appeal, the appellant contends first that there is no substantial evidence in the record supporting the finding that he was discharged for misconduct in connection with the work. He contends that he struck his co-worker in self-defense. Alternatively, the appellant contends that all the evidence introduced by the employer was hearsay which, according to his argument, cannot constitute substantial evidence. We find no merit to either argument.
Substantial evidence is such relevant evidence that a reasonable mind might accept as adequate to support the conclu sion reached. Victor Industries v. Daniels, 1 Ark. App. 6, 611 S.W.2d 794 (1981). The function of this court is to determine whether substantial evidence is present in the record to support the decision made by the Board. Hearsay evidence can constitute substantial evidence in unemployment compensation cases. Leardis Smith v. Everett, 276 Ark. 430, 637 S.W.2d 537 (1982); Farmer v. Everett, 8 Ark. App. 23, 648 S.W.2d 513 (1983).
In the case at bar, the employer’s evidence consisted of notarized statements signed by other employees stating that the appellant had provoked the fight, as well as oral testimony from the employer’s bookkeeper (who admittedly had no first hand knowledge of the fight). She testified that the appellant had been cursing and threatening co-workers for several weeks before the fight and that the employer had cautioned the appellant that he would be discharged if his abusive conduct continued. We hold that this evidence constituted substantial evidence which supports the Board’s decision.
The appellant also argues that the admission of hearsay in the record violated his right to confront and cross-examine adverse witnesses. In addressing that issue, this Court, in Farmer v. Everett, supra, specified two requirements which must be met before the admission of hearsay evidence will not violate a claimant’s right to confront and cross-examine adverse witnesses: (1) a party must have an opportunity to know what evidence is being considered; and (2) a party must have the right to a rehearing for the purpose of giving that party the opportunity to subpoena and cross-examine adverse witnesses.
In the case at bar, the appellant knew what evidence was being considered. A statement signed by the appellant approximately thirty days prior to the Appeal Tribunal hearing acknowledged that the appellant knew the employer claimed to have fired him for fighting with a co-worker. The employer’s bookkeeper testified before the Appeal Tribunal as to the reasons underlying the appellant’s discharge, and it was she who offered the notarized statements into evidence. The appellant had the right to petition the Board to remand the matter to the Appeal Tribunal to allow him the opportunity to cross-examine opposing witnesses. Instead, the appellant obtained counsel and appealed the adverse decision to the Board. Thus, the issue raised before this Court was never presented to the Board, although the appellant had the opportunity to do so.
Affirmed.
Cloninger and Corbin, JJ., agree. | [
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Donald L. Corbin, Judge.
This is an appeal by the Second Injury Fund (SIF) from a Workers’ Compensation Commission decision that appellee Dewey Coleman had suffered a “previous disability”, in addition to his compensable injury incurred while working for appellee Hardwick Airmasters, and that SIF was required to pay for that degree of disability arising from Coleman’s first injury. SIF contends on appeal that Coleman’s first injury was not acting to independently produce some degree of permanent disability both before and after the date of the last injury and that because the employer, Hardwick Airmasters, had no knowledge of the prior injury, the SIF could not be liable for Coleman’s prior conditions. We reverse and remand.
Appellee Coleman’s first back injury occurred on August 3, 1981, while working for Brown and Root, Inc. There is no medical report in the record of this injury. He had no history of back pain prior to this time. After this injury Coleman visited the doctor on September 9, 30, October 4, and November 11 of 1981 for back problems. He was operated on in December of 1981, and, with the exception of a slip on the ice in January of 1982, had no further problems with his back until he injured it on September 13,1982. On March 4, 1982, a Joint Petition Order was entered on a workers’ compensation claim, awarding Coleman $12,000, plus outstanding medical bills, to settle his claim against Brown and Root. There was no mention of any degree of permanent disability in either the order or petition. The only report in the record by the surgeon, Dr. DeSaussure, after the first surgery and prior to the second injury, gave no degree of permanent disability, noted that Coleman was doing extremely well, and stated that he could be able to return to work in a couple of months to a job which required the lifting of 200 or more pounds. Coleman testified that he was given no physical restrictions upon being released for work after the first operation. After the first surgery for the second injury, Dr. DeSaussure rated his permanent partial disability from the first injury at 15% and increased it by 10% as a result of the second injury. Dr. Thomas, who performed the third operation, the second for the second injury, gave Coleman a permanent partial disability rating of 10% as a result of the first injury and an additional 15% as a result of the second.
Appellee Coleman did not return to work for Brown and Root after the first accident, having been laid-off, and applied for work with appellee Hardwick Airmasters in May of 1982. He did not list his employment with Brown and Root on the employment application, nor did he list his previous injury or the joint petition settlement. Coleman testified that he told the superintendent for Hardwick, Jim Musgrave, about his back injury, and that he did not have any physical limitations because of it, and said Mus-grave told him to put down he had no restrictions. Coleman testified that he was in great physical shape before the second injury on September 13,1982. He stated that he carried 20-foot pipe on his shoulder all day long. He testified that he felt fully recovered from the 1981 injury, and that he was not limited or restricted in any respect from performing his job at Hardwick Airmasters. He also testified that he was not taking any medication prior to the September 1982 injury, and often worked on Saturdays to get overtime pay. Finally, he stated that he was having no back or leg problems prior to the September 1982 injury. He further testified, as did a co-worker, that it was common knowledge that he had had back surgery. While Mus-grave testified that he did not know about Coleman’s previous back injury at any time prior to his subsequent injury and that he would not have hired him had he known, he also conceded that he had not looked at the application until after he had hired Coleman and Coleman had started to work. Musgrave did testify that he had observed the scar on Coleman’s back, but Coleman told him that this had occurred when he was shot while in Vietnam. It is uncontroverted that Coleman had no trouble prior to his second injury in handling the workload at Hardwick Airmasters.
While the Shippers defense was raised at the second hearing before the Administrative Law Judge, he ruled that the issue was res judicata because the employer had stipulated in a previous hearing that the injury was compensable, but that even if it were not res judicata, the employer and SIF had failed to prove all three elements of the Shippers defense. This ruling was not appealed to the Full Commission, nor has it been appealed to our Court.
The Workers’ Compensation Act provides for payments by SIF when a subsequently injured employee has a “previous disability or impairment.” Ark. Stat. Ann. § 81-1313(i)(l) (Supp. 1985) provides in part:
Second Injury. (1) The Second Injury Fund established herein is a special fund designed to insure that an employer employing a handicapped worker will not, in the event such worker suffers an injury on the job, be held liable for a greater disability or impairment than actually occurred while the worker was in his employment. The employee is to be fully protected in that the Second Injury Fund pays the worker the difference between the employer’s liability and the balance of his disability or impairment which results from all disabilities or impairments combined. It is intended that latent conditions, which are not known to the employee or employer, not be considered previous disabilities or impairments which would give rise to a claim against the Second Injury Fund.
Commencing January 1, 1981, all cases of permanent disability or impairment where there has been previous disability or impairment shall be compensated as herein provided. Compensation shall be computed on the basis of the average earnings at the time of the last injury. If any employee who has a permanent partial disability or impairment, whether from compensable injury or otherwise, receives a subsequent compensable injury resulting in additional permanent partial disability or impairment so that the degree or percentage of disability or impairment caused by the combined disabilities or impairments is greater than that which would have resulted from the last injury, considered alone and of itself, and if the employee is entitled to receive compensation on the basis of combined disabilities or impairments, the employer at the time of the last injury shall be liable only for the degree or percentage of disability or impairment which would have resulted from the last injury had there been no pre-existing disability or impairment. After the compensation liability of the employer for the last injury, considered alone, which shall be no greater than the actual anatomical impairment resulting from said last injury, has been determined by an administrative law judge or the Commission, the degree or percentage of employee’s disability that is attributable to all injuries or conditions existing at the time the last injury was sustained shall then be determined by the administrative law judge or the Commission and the degree or percentage of disability or impairment which existed prior to the last injury plus the disability or impairment resulting from the combined disability shall be determined and compensation for that balance, if any, shall be paid out of a special fund known as a Second Injury Fund provided for in Section 47 (Ark. Stats. 81-1348).
The first two sentences of Ark. Stat. Ann. § 81-1313 (i) (1) expressly state the purposes of the SIF statute to limit the employer’s liability and simultaneously “fully protect” an already handicapped employee where he is subsequently injured on the job.
The Arkansas Supreme Court has directed this is a “special” fund and its solvency demands all its provisions be strictly complied with to further its limited and restricted purpose.
“This fund, called the ‘Second Injury Fund’, is a limited and restricted fund . . . While Workmen’s Compensation Acts are generally to be liberally construed the solvency of this special ‘Second Injury Fund’ requires that the provisions and requirements thereof be fully and strictly complied with. . . To hold otherwise would open this special fund to the point of insolvency and provide no benefit to those who do comply with its provisions and who are entitled to benefits thereunder.”
Arkansas Workmen’s Compensation Commission v. Sandy, 217 Ark. 821, 233 S.W.2d 382 (1950) (quoting from the opinion of the Commission).
Webster’s Third World New International Dictionary defines handicapped as “. . .a physical disability that limits the capacity to work.” Disability has been defined under the Workers’ Compensation Act as the “incapacity because of injury to earn, in the same or any other employment, the wages which the employee was receiving at the time of the injury.” Ark. Stat. Ann. § 81-1302(e) (Repl. 1976).
A person can be disabled if the injury has caused a physical loss or an inability to earn as much as he was earning when he was hurt. Bragg v. Evans-St. Clair, Inc., 15 Ark. App. 53, 688 S.W.2d 956 (1985); Terrell v. Austin Bridge Co., 10 Ark. App. 1,660 S.W.2d 941 (1983). An injury must be more than an anatomical disability, but must be a disability in the “compensation sense” to be a previous disability, as defined in § 81-1302(e), requiring apportionment under the Workers’ Compensation Act. Cooper Industrial Products v. Worth, 256 Ark. 394, 508 S.W.2d 59 (1974); Henderson State University v. Haynie, 269 Ark. 721, 600 S.W.2d 454 (Ark. App. 1980).
Appellant argues that the Commission erred in finding that Coleman had a prior disability or impairment pursuant to Ark. Stat. Ann. § 81-1313(i)(l), which rendered him a handicapped worker prior to his compensable injury on September 13, 1982. We have previously held in Craighead Memorial Hospital v. Honeycutt, 5 Ark. App. 90, 633 S.W.2d 53 (1982), and Harrison Furniture v. Chrobak, 2 Ark. App. 364, 620 S.W.2d 955 (1981), that while an impairment did not have to be job-related for apportionment to apply, it did have to be independently causing disability prior to the second injury and must have continued to cause disability after the second injury. Whether a person is “disabled” according to the statute is determined by his loss of wage earning capacity. Furthermore, in Osage Oil Co. v. Rogers, 15 Ark. App. 319, 692 S.W.2d 786 (1985), we held that “impairment” as used in Ark. Stat. Ann. § 81-1313 (i) (1) means loss of earning capacity due to a non-work related condition.
In Osage Oil we rejected the contention that the SIF was liable even when the claimant had previously suffered only an anatomical impairment of some type, holding that the purpose of the Act is to encourage the employment of handicapped workers by providing that in the event of injury to those workers the employer will not have to pay for any more disability than actually occurred in his employment and not to provide employers with a windfall or subsidy. We reaffirm that position.
On appeal, this Court is required to review the evidence in the light most favorable to the Commission’s decision and to uphold that decision if it is supported by substantial evidence. Even when a preponderance of the evidence might indicate a contrary result, we affirm if reasonable minds could reach the Commission’s conclusion. Questions of credibility and the weight and sufficiency of the evidence are matters for determination by the Commission. The Commission is better equipped by specialization and experience to analyze and translate evidence into findings than we are. Bemberg Iron Works v. Martin, 12 Ark. App. 128, 671 S.W.2d 768 (1984).
When guided by the above rules of law, we hold that there is no substantial evidence in the instant case to support the Commission’s finding as there is no evidence that Coleman had a reduction of earning capacity. In order to be apportionable under the statute, the condition must have been independently causing a disability prior to the second injury and continue to do so after the second injury. Id. The condition must be “of a ‘physical quality capable of supporting an award if the other elements of compensability were present.’ ” Id. at 324. We believe that it is clear appellee Coleman’s injury of 1981 was not a disability or impairment and that, therefore, appellant SIF has no liability under the law. Since we reverse and remand on this point, we need not address appellant’s second assignment of error.
Reversed and remanded for an entry of an order consistent with this opinion.
Reversed and remanded.
Mayfield, J., concurs.
Glaze, J., dissents. | [
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Melvin Mayfield, Judge.
This is an appeal from the revocation of a suspended sentence. On January 18, 1979, the appellant pleaded guilty to aggravated robbery and kidnapping and was sentenced to serve ten years, with five years suspended, in the Arkansas Department of Correction. On October 29,1979, he was paroled from the penitentiary, but at a revocation hearing on January 4, 1985, the “five years remaining on his suspended sentence” was revoked and he was sentenced to serve five years in the Department of Correction.
The appellant contends that the trial court did not have the authority to revoke his suspended sentence because the suspended portion had expired. This argument is based upon Matthews v. State, 265 Ark. 298, 578 S.W.2d 30 (1979). In that case a defendant had been sentenced to five years imprisonment with the last four years suspended. The opinion states that under Ark. Stat. Ann. § 41-1206(3) (Repl. 1977) the suspended portion of a sentence to imprisonment commences to run upon the release of the prisoner from confinement. Although section 41-1206(3) was not applied in Matthews because it was not in force at the time of the pronouncement of sentence in that case, the court’s interpretation is in accord with the Commentary to the section and we think it should be applied to the case at bar.
In this case the appellant was paroled from the penitentiary on October 29, 1979. Therefore, under the opinion in Matthews, the appellant’s five-year suspended period of imprisonment commenced to run on October 29, 1979, and the court had no authority to revoke that suspension on January 4,1985, more than five years later.
The state argues that Ark. Stat. Ann. § 41-1208(5) (Repl. 1977) permitted revocation even though the suspended portion of the sentence had expired. That statute provides:
The court may revoke a suspension or probation subsequent to the expiration of the period of suspension or probation, provided defendant is arrested for violation of suspension or probation, or a warrant is issued for his arrest for violation of suspension or probation, before expiration of the period.
The state’s position is that the appellant was arrested on June 11,1984, and since this was within five years of his October 28, 1979, release from imprisonment, the expiration of the five-year suspended portion of his sentence had not run and the court had the authority to revoke his suspended sentence.
The problem with this contention is that there is no evidence to support a finding that appellant’s arrest on June 11,1984, was for violation of his suspension or probation. To the contrary, the only evidence in the record pertaining to the reason for appellant’s arrest is from Harlan Sweeten, a detective for the police department of the City of Fort Smith. Mr. Sweeten testified that he arrested appellant on June 11, 1984, on outstanding warrants issued on charges unrelated to the grounds upon which appellant’s suspended sentence was revoked. The appellant made bond by giving a bondsman a diamond ring as collateral, but he was arrested again the next day on the charge of theft of the ring. This charge was the basis of the revocation of his suspended sentence, but no warrant was ever issued for his arrest for violation of his suspended sentence and the evidence is clear that he was not arrested for any such violation.
A clearly established distinction has been made between arrest for violation of the conditions of a suspended sentence and arrest for other charges in determining whether a revocation hearing under Ark. Stat. Ann. § 41-1209(2) (Repl. 1977) has been held within 60 days of arrest. In Walker v. State, 262 Ark. 215, 555 S.W.2d 228 (1977), the Arkansas Supreme Court held, in regard to the defendant’s contention that he was not given a revocation hearing within 60 days of his arrest, that his arrest was for theft of property and not for revocation and, therefore, the 60-day limitation for the revocation hearing as provided in section 41-1209(2), supra, did not apply.
In Reynolds v. State, 282 Ark. 98, 666 S.W.2d 396 (1984), the court again made the same distinction. In that case the court said in regard to the 60-day limitation: “That provision relates to an arrest for violation of the conditions of a suspended sentence and not an arrest on another charge.”
We think it is obvious that these holdings as to the 60-day limitation for a revocation hearing provided by section 41-1209(2) must also be applied to section 41-1208(5) in determining whether a defendant has been arrested for violation of the conditions of a suspended or probated sentence before the expiration of the period of the suspension or probation.
Reversed and dismissed.
Cracraft, C.J., and Corbin, J., agree. | [
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Per Curiam.
The appellant has appealed his conviction of conspiracy to deliver a controlled substance for which he was sentenced to a term of 30 years in the Department of Correction and a fine of $ 15,000. Appellant’s brief does not comply with Rule. 9(b) and (d) of the Rules of the Supreme Court and the Court of Appeals.
Rule 9(b) requires that a brief begin with a concise statement qf the case sufficient to enable us to read the abstract with an understanding of the nature of the case, general factual situation and action taken by the court. Appellant’s statement of the case does none of these things. Rule 9(d) requires that the abstract of the record contain a condensation of those material parts of the record and testimony which are necessary to an understanding by the court of all questions presented for decision and provides that abstracts not in the first person shall not be accepted.
All of appellant’s arguments are based on the refusal of the trial court to grant his motion to suppress the evidence. The abstract does not contain the motion to suppress or the court’s ruling on that motion. It consists of selected and unconnected, verbatim questions and answers but does not contain most of the evidence on which his arguments are based. It gives us no understanding of the facts or the sequence of events on which his arguments are based.
Appellant’s brief is so flagrantly deficient that it causes an unreasonable and unjust delay in the disposition of the case. However, in view of the sentence imposed this court finds that it would be unjustly harsh to affirm the case for this noncompliance.
Pursuant to Rule 9(e)(2) appellant’s attorney will be allowed twenty (20) days to reprint the brief to conform to Rule 9(b) and (d) at his own expense. Appellee will be allowed fifteen (15) days thereafter to revise or supplement its brief. | [
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Melvin Mayfield, Judge.
Appellant, Ted Monaghan, appeals a decision of the Polk County Chancery Court holding that appellee, Conley Joe Davis, had thirty days from the date of the letter opinion in which to exercise an option to repurchase certain land that he had previously owned.
There is evidence that Davis was in financial difficulty. The first mortgage on 78 acres which he owned had been foreclosed and the property had been ordered sold by the chancery court. Davis approached a friend, Ray Goodner, about lending him enough money to pay off the mortgage. Goodner was unable to lend him any money but put Davis in touch with appellant Monaghan. Monaghan agreed to give Davis $35,000 for the property and a watch Davis owned.
Monaghan also agreed to give Ray Goodner an option to purchase the property and Goodner made an oral agreement to reconvey it to Davis. There was a dispute as to whether the term of Goodner’s option to purchase was six or twelve months, but it was agreed that the repurchase price was $40,000.
Davis executed and delivered to Monaghan a warranty deed. The option agreement was prepared by Monaghan’s attorney and signed by Monaghan but was retained in the attorney’s file rather than being delivered to Goodner. About a year later, Monaghan refused to convey the land and Davis filed suit to enforce the option.
On appeal to this court, Monaghan first cites ARCP Rule 17(a) and argues that the trial court erred in denying his motion to dismiss for lack of the joinder of Goodner who, it is alleged, was the real party in interest. The trial court held that Goodner was merely a conduit, that he had no interest in the property, and that he merely allowed the option to be placed in his name because Monaghan knew him and did not know Davis.
We think it is clear that the option to repurchase was made for the benefit of Davis. It is also clear that contracts made for the benefit of a party are actionable by that party. Howell v. Worth James Const. Co., 259 Ark. 627, 535 S.W.2d 826 (1976); Baker v. Bank of Northeast Ark., 271 Ark. 948, 611 S.W.2d 783 (Ark. App. 1981). However, the Reporter’s Notes to Rule 17 state that it is generally held that the “real party” in interest is the person who can discharge the claim upon which the action is brought and not necessarily the party who is “ultimately entitled to the benefit of the recovery.” Long before the adoption of the Arkansas Rules of Civil Procedure, we had a statute providing that actions must be prosecuted in the name of the real party in interest. See Ark. Stat. Ann. § 27-801 (Repl. 1962). That statute was involved in House v. Long, 244 Ark. 718, 426 S.W.2d 814 (1968), which is cited in support of the above statement from the Reporter’s Notes, and the case is relied upon by appellant for the argument that Goodner is the real party in interest since the option to repurchase was in his name. It is indicated by the Reporter’s Notes that federal courts generally interpret the real party in interest requirement as did House v. Long.
House v. Long also holds that one of the primary purposes of a real party in interest statute is to prevent defendants from being harassed by different suits arising from the same cause. That is also the purpose of Rule 17(a) of the Federal Rules of Civil Procedure. In Pace v. General Electric Company, 55 F.R.D. 215 (W.D. Pa. 1972), the court said the rationale of the rule was to protect a defendant from a multiplicity of suits, to allow a defendant to present all his defenses, and to protect a defendant from multiple liability. But the opinion adds that “since the rule is made for the protection of the defendant, he may waive it by his inaction,” and quotes from 6 Wright & Miller, Federal Practice and Procedure §1554(1971), where in a discussion of the proper method of raising the real party in interest issue, it is stated:
Regardless of what vehicle is used for presenting the objection, it should be done with reasonable promptness. Otherwise, the court may conclude that the point has been waived by the delay and exercise its discretion to deny motions on the ground of potential prejudice.
In the instant case, the first time any point was raised about a real party in interest issue was in appellant’s opening statement after each party had announced ready for trial. At that time the case had been pending for months, and the complaint had always contained the specific allegation that the option to repurchase had been granted to Goodner. Even though Goodner’s involvement was clear from the day the suit was filed, the appellant waited until the trial started to complain that Davis was not the real party in interest. Under these circumstances, we think the appellant waived this issue by his delay in raising it. See Hefley v. Jones, 687 F.2d 1383 (10th Cir. 1982) (holding trial court acted within its discretion in refusing to allow a defendant to amend, 16 days prior to trial, to make the real party in interest a party to the suit). This is also in keeping with the application of our former real party in interest statute, Ark. Stat. Ann. § 27-801 (Repl. 1962). See Farm Bureau Mut. Cas. Ins. Co. v. Robinson, 262 Ark. 850, 562 S.W.2d 53 (1978) (holding an attempt to raise a defect of parties issue by motion for directed verdict at the end of the trial came too late); and Morris v. Varnell, 222 Ark. 294, 258 S.W.2d 889 (1953) (holding an objection during the trial came too late).
When this issue was raised in the instant case, the trial judge stated that he thought the matter should have been the subject of a motion to dismiss but reserved ruling until later. At the conclusion of the evidence, he held that Davis was the real party in interest. However, we believe he reached the right result and we affirm if the court was correct for any reason. Guthrie v. Tyson Foods, 285 Ark. 95, 685 S.W.2d 164 (1985); Moose v. Gregory, 267 Ark. 86, 590 S.W.2d 662 (1979); Morgan v. Downs, 245 Ark. 328, 432 S.W.2d 454 (1968); and Mayhew v. Loveless, 1 Ark. App. 69, 613 S.W.2d 118 (1981).
We hold that Davis was a third party beneficiary of the option to repurchase agreement. He was a proper party to bring suit on that agreement. If Goodner should have been a party because the option was in his name, this point was waived by the appellant’s failure to raise the issue before the trial started.
Appellant’s next four arguments challenge the decision of the court in holding that the deed, which was absolute on its face, was actually a mortgage, and in granting appellee thirty days from the date of the letter opinion in which to exercise the option to repurchase. In explaining his decision, the trial court observed that although appellant had insisted that the transaction was a sale, appellee testified he thought he was merely giving appellant security for a loan and was unaware that the document was a warranty deed; that a copy of the option to purchase, in which appellant agreed to convey the property to Goodner, was in the record and contained the appellant’s signature; and that it would go against the conscience of the court to enforce the transaction against appellee. Although he did not identify it as such, we think the real basis of the court’s decision was that the deed actually constituted an equitable mortgage.
It is a well settled principle of equity jurisprudence in this state that where, at the time of sale, a vendor of land is indebted to the purchaser and continues to be indebted to him after the sale with the right to call for a reconveyance upon payment of the debt, a deed absolute on its face will be construed by a court of equity as a mortgage. Evidence, written or oral, is admissible to show the real character of the transaction. DeLoney v. Dillard, 183 Ark. 1053, 40 S.W.2d 772 (1931). The question whether a deed to realty, absolute on its face, when construed together with a separate agreement or option to repurchase by the grantor amounts to a mortgage or is a conditional sale, depends on the intention of the parties in the light of all attendant circumstances. Ehrlich v. Castleberry, 227 Ark. 426, 299 S.W.2d 38 (1957). It is unquestionably within the power of two individuals, capable of acting for themselves, to make a contract for the purchase and sale of land, with a reservation to the vendor of a right to repurchase the property at a fixed price and at a specific time. If such transaction is security for a debt, then it is a mortgage — otherwise, it is a sale. Carter v. Zachary, 243 Ark. 104, 418 S.W.2d 787 (1967) (quoting from Newport v. Chandler, 206 Ark. 974, 178 S.W.2d 240 (1944)).
The foreclosure of a mortgage is ordinarily necessary in order to cut off the mortgagor’s equity of redemption and to transfer absolute title to the mortgaged property, even in the case of absolute deeds intended as mortgages. 59 C.J.S. Mortgages § 486 (1949). See also Baugh v. Taylor, 184 Ark. 545, 42 S.W.2d 992 (1931), where the court stated:
The clause in the option contract making time of the essence thereof had the effect, perhaps, of waiving the right of redemption conferred by the statute, but did not dispose of the equity of redemption which antedates any statutory right of redemption. This equity can be disposed of only by foreclosure or a conveyance or by laches.
In the instant case, a finding that the deed coupled with the option constituted an equitable mortgage is not clearly against the preponderance of the evidence, and the chancellor did not commit error by granting the appellee thirty days in which to redeem his property.
Affirmed.
Cracraft, C.J., and Cloninger, J., agree. | [
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George K. Cracraft, Chief Judge.
Hazel W. Womack appeals from a decree of divorce in which the trial court held that under the circumstances of the case the military retirement pension of Arleigh Womack was not marital property subject to division. She contends that the trial court erred in that ruling. We agree.
In 1955 appellee entered military service. In 1957 he married appellant. In 1975 appellee retired from the Navy and began receiving military retirement benefits at the rate of $795.00 per month. The parties were divorced in August 1984. The chancellor ruled that since the decision in Day v. Day, 281 Ark. 261, 663 S.W.2d 719 (1984) military retirement benefits payable in the future may be considered marital property and subject to division under Ark. Stat. Ann. § 34-1214 (Supp. 1985). He further found that the appellee’s rights under the military pension plan vested in 1955 on entering the service and concluded that under § 34-1213(b)(5) (Supp. 1985) the benefits were excluded because they represented a mere increase in the value of property acquired by appellee prior to the marriage.
We agree with the chancellor’s conclusion that Day and its progeny have established that military retirement benefits may constitute marital property subject to division on divorce but do not agree with his conclusion that the benefits based on appellee’s military service after the marriage represented increases in value of his separate property acquired prior to the marriage.
The chancellor’s finding that the appellee acquired a vested right in military retirement upon entering active military service in 1955 is clearly erroneous. It was undisputed that under military pension regulations the right to receive retirement benefits did not vest until after the serviceman had completed twenty years service. Had the appellee left the Navy before completing twenty years active duty he would have been entitled to no benefits.
The question of the status of pension benefits based in part on pre-marital contributions or service was addressed in Marshall v. Marshall, 285 Ark. 426, 688 S.W.2d 279 (1985). There the husband had retired after thirty-five years employment at Reynolds Aluminum but had been married to the wife for only the last ten of those years. The chancellor held that all of the retirement benefits were marital property subject to division on divorce. The Supreme Court reversed and declared that those benefits based on contributions or service prior to the marriage were separate property of the recipient and those based on contributions or service during the marriage were marital property. The Supreme Court modified the decree to award the wife her proportionate share of benefits based on the husband’s contributions or service during the marriage. Here retirement benefits based on the two years service of the husband prior to the marriage are his separate property. Those benefits based on the remaining eighteen years are not mere increase in value of separate property, but are marital property subject to division.
The appellee contends in the alternative that the chancellor was right for the wrong reason. Appellee relies on Paulsen v. Paulsen, 269 Ark. 523, 601 S.W.2d 873 (1980) in which the court declared that future installments of military retirement benefits, currently being paid but not transferable, are not marital property under the statute. We agree with the chancellor that Paulsen was effectively overruled by the Supreme Court in its decisions in Day v. Day, supra, Marshall v. Marshall, supra, and Gentry v. Gentry, 282 Ark. 413, 668 S.W.2d 947 (1984).
In a series of cases referred to in Day, our court had previously dealt with pension plans which provided benefits in installments but gave the beneficiary no right to lump sum payment, had no loan or surrender value, and were not transferable. Based on the concept that installments of pension benefits payable in the future were more akin to mere “expectancies” the court in those cases declared that retirement benefits not yet due and payable were not property subject to division on divorce. In Paulsen this view was applied to military retirement benefits currently being paid but which terminated at death, had no loan or surrender value and were not transferable.
In Day the court recognized that in prior cases it had failed to recognize the new concept of marital property created by Act 705 of 1979. It held that although the beneficiary could not withdraw any amount from the fund which had no loan or surrender value and could not be transferred, the fund was a valuable property right subject to division. In listing the cases in which the court had failed to recognize the new concept it specifically listed Paulsen.
In Gentry v. Gentry, supra, the court stated:
Until recently we were of the view that pension benefits vested but not yet due and payable were not subject to distribution in a divorce. Sweeney v. Sweeney, 267 Ark. 595, 593 S.W.2d 21 (1980) (Construing our earlier statute.) The same view was taken when we, construing Act 705 of 1979, considered a military pension which the husband was receiving. Paulsen v. Paulsen, 269 Ark. 523, 601 S.W.2d 873 (1980).
That view was changed in Day v. Day, 281 Ark. 261, 663 S.W.2d 719 (1984) ....
In Marshall v. Marshall, supra, the court again recognized that Day had overruled the previous decisions and held that pension plan benefits vested but not yet due and payable constituted marital property and as such should be divided under the statute unless the court found the division to be inequitable.
Appellant further contends that the present case is distinguishable from Day, Gentry, and Marshall because the military pension was a non-contributory one. In Day the court cited with approval Re: Marriage of Brown, 15 Cal.3d 838, 126 Cal. Rptr. 633 (1976) in which the California Court was addressing a noncontributory pension plan. The plan in Re: Marriage of Brown, like the military pension plan, was not based on contributions of funds but on years of service to the corporation.
In Marshall the court stated:
Brown is annotated in 94 ALR 3d 176, where we find in those jurisdictions recognizing retirement benefits as marital property, there appears to be no question that benefits based on contribution or services not made during the marriage constitute the separate property of the recipient. [Emphasis supplied]
From these cases it becomes clear that vested retirement benefits not yet due and payable are marital property subject to division on divorce when based on contributions made or services rendered during the marriage. As the appellee’s pension was not only vested but was being paid at the time of the divorce, it was subject to division as marital property, subject to the limitations set out in Marshall and the alternatives mentioned in Day. In Day the court emphasized that it did not intend to lay down an inflexible rule regarding division of pension benefits. In appropriate cases the chancellor might balance the equities by awarding the wife alimony commensurate with the husband’s ability to pay, taking into account his pension right.
On de novo review of a fully developed chancery record where we can plainly see where the equities lie, this court may enter the order here that the chancellor should have entered. However, the decree appealed from contained a lengthy and detailed settlement of all property rights, including property in lieu of alimony. As the scheme of disposition of marital rights may have been influenced by the chancellor’s view that appellee would receive the $795.00 monthly installment free of any claims of the appellant, the interests of justice would better be served by reversing all that portion of the decree dealing with alimony and property division to enable the chancellor on remand to reconsider the entire disposition of marital rights in light of the views expressed in this opinion.
Reversed and remanded.
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George K. Cracraft, Chief Judge.
Tyson Foods, Inc. brings this appeal contending that the Workers’ Compensation Commission improperly determined the amount of attorney’s fee to be awarded Herman Fatherree in these proceedings. The essential facts are largely undisputed. The appellee sustained a compensable injury to his back in November 1978. Appellant controverted all permanent disability in excess of 25% to the body as a whole. A final award was entered on September 4, 1981 finding him to be permanently and totally disabled and awarding the claimant’s attorney a lump sum fee based on that portion of the benefits which had been controverted.
On March 2, 1983 the appellant unilaterally terminated payment of benefits and filed a motion to set the award aside as having been procured by fraud. After a hearing the administrative law judge ruled that the appellant had failed to show by a preponderance of the evidence that the award had been obtained by fraud, and assessed a 20% penalty on the installment of benefits accrued between the dates of termination and reinstatement pursuant to Ark. Stat. Ann. § 81-1319(f). It also allowed an attorney’s fee calculated on the amount of benefits wrongfully withheld.
On appeal the full Commission affirmed the findings of the administrative law judge as to continued liability but determined that the attorney’s fee should be calculated on all reinstated benefits. The appellant brings this appeal contending that the Commission erred by awarding the second maximum statutory attorney’s fee which was calculated on some of the same controverted benefits as the first one. We find no error.
Ark. Stat. Ann. § 81-1332 (Repl. 1985) provides in pertinent part as follows:
In all other cases, whenever the Commission finds that a claim has been controverted, in whole or in part, the Commission shall direct that fees for legal services be paid by the employer or carrier in addition to compensation awarded, and such fees shall be allowed only on the amount of compensation controverted and awarded, ... In any case where attorney’s fees are allowed by the Commission, the limitations expressed in the first sentence herein shall apply. In determining the amount of fees, the Commission shall take into consideration the nature, length and complexity of the services performed, and the benefits resulting therefrom to the compensation beneficiaries.
In Aluminum Company of America v. Henning, 260 Ark. 699, 543 S.W.2d 480 (1976) the court stated that the primary purpose of determining whether a claim is controverted is for the purpose of determining who is liable for the claimant’s attorney’s fees. It declared that making the employer liable for the attorney’s fee serves a legitimate social purpose of discouraging oppressive delay, recognition of liability, deterring arbitrary or capricious denials of claims and assuring the ability of necessitous claimants to obtain' adequate and competent legal representation. It further stated that if the fundamental purpose is to be achieved it must be considered that the real object is to place the burden of litigation expense upon the party who makes it necessary.
Appellant points out that § 81-1332 sets maximum fees which can be allowed by the Commission. It argues that as appellee’s attorney had already been allowed the maximum fee provided, any additional sum should be in excess of that provided in the act. It is true that the holding of the Commission means that appellant will be required to pay attorney’s fees calculated twice on some of the benefits awarded appellee. However, we agree with the Commission that these same benefits have been controverted and placed in jeopardy twice by appellant and appellee has been required to obtain the services of an attorney on both occasions. We find nothing in § 81 -13 32 indicating that there can be only one controversion for the purposes of that section. It specifically provides that whenever the Commission finds that the claim has been controverted it should allow attorney’s fees on the controverted portion. The maximum fees provided in that section can only refer to each controversion. Certainly the legislature intended that a necessitous claimant have the ability to obtain counsel in defense of an award as well as in the obtaining of it. Any other meaning ascribed to this section would defeat the stated purpose of the enactment.
This section provides that in determining the amount of fees the Commission shall take into consideration the nature, the length and complexity of the services performed and the benefits resulting therefrom to the compensation beneficiaries. Section 81-1331 provides that the fees allowed shall not exceed 30% of the first $ 1,000 awarded, 20% of the second $2,000 or 10% of all sums in excess of $3,000. The Commission determined that under the statute and Norsworthy v. Georgia Pacific Corp., 249 Ark. 159, 458 S.W.2d 401 (1970) the reinstated award should be treated as additional compensation and computed at the rate of 10%. It further found that this voluminous record amply demonstrated the considerable amount of time, skill and effort devoted by the claimant’s counsel. It further considered the results obtained for the claimant beneficiary in making its determination.
We cannot agree that the award of additional attorney’s fees amounts to a penalty. The award of attorney’s fee is not a penalty but an award of reasonable compensation for services necessarily rendered to compensation claimants based on consideration by the Commission of the various factors usually taken into consideration in determining reasonable attorney’s fees. This is in keeping with the purpose of the act, not only to deter arbitrary and capricious denials, but to insure the ability of necessitous claimants to obtain adequate and competent legal representation.
We conclude that the Commission has followed the provisions of the section ánd that its determination that appellee’s attorney was entitled to a maximum fee under the statute was based on a consideration of those criteria set out in the statute and ordinarily applicable in such cases.
Affirmed.
Cloninger and Mayfield, JJ., agree. | [
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Tom Glaze, Judge.
Appellant appeals his conviction of conspiracy to manufacture a controlled substance for which he received a sentence of seven and one-half years in the Arkansas Department of Correction. For reversal, appellant submits the trial court erred in (1) refusing to instruct the jury that Donald Flaherty and Wesley Atkinson were accomplices as a matter of law, (2) denying his motion for a directed verdict because there was insufficient corroborating evidence of co-conspirators’ and accomplices’ testimonies to sustain his conviction, (3) granting the State’s motion in limine, and (4) ruling it had jurisdiction.
Testifying for the State, Vickie Howell stated that she, James Boyce, and appellant decided to set up a lab to manufacture crystal methamphetamine. Howell testified that they all contributed equal amounts of money, and had spent about $2,500 on equipment and chemicals for the lab prior to their arrests. The items, which were ordered by Howell, were shipped to Wesley Atkinson’s apartment in Texas, and then were transported and stored in Boyce’s house in Arkansas. A couple of weeks before appellant was arrested, Donald Flaherty gave appellant $750 to join the scheme, but about a week before the arrests, Flaherty went to appellant and, using a gun, got his money back.
Appellant contends that Atkinson and Flaherty were accomplices as a matter of law, and that the court erred when it instructed the jury that only Boyce and Howell were accomplices. The defendant in a criminal case has the burden of proof that a witness is an accomplice whose testimony must be corroborated. Lear v. State, 278 Ark. 70, 643 S.W.2d 550 (1982); Robinson v. State, 11 Ark. App. 18, 665 S.W.2d 890 (1984).
Flaherty testified that, approximately a month before the arrests, appellant talked to him on four to six occasions about buying into the scheme. On about April 7, 1984, Flaherty invested $750 in the enterprise, but he testified that, on or about April 14, he successfully demanded the return of his money. During this one-week period, a delivery was made to Atkinson’s apartment, and-a later one was made on April 19. The arrests were made on April 21, 1984.
The State argues that, because he withdrew his money, Flaherty’s status as an accomplice was a fact issue for the jury. We do not agree. After Flaherty joined the conspiracy, he, too, became an accomplice. Thereafter, he did not lawfully withdraw his participation in the conspiracy or terminate his role as an accomplice in the offense of conspiracy.
The crime of conspiracy exists when one, for the purpose of promoting or facilitating the commission of a criminal offense, agrees with another person or persons that he will engage or aid in committing the offense, coupled with an overt act pursuant to the conspiracy. Shrader v. State, 13 Ark. App. 17, 678 S.W.2d 111 (1984); Ark. Stat. Ann. § 41-707 (Repl. 1977). The evidence here clearly establishes that Flaherty agreed with and joined in the conspiracy, committing an overt act by the payment of money. Once having done so, there was no way for him to renounce the conspiracy except in accordance with the provisions of Ark. Stat. Ann. § 41-710 (Repl. 1977). Section 41-710 provides that:
It is an affirmative defense to a prosecution for conspiracy to commit an offense that the defendant:
1) thwarted the success of the conspiracy under circumstances manifesting a complete and voluntary renunciation of his criminal purpose; or
2) terminated his participation in the conspiracy and:
(a) gave timely warning to appropriate law enforcement authorities; or
(b) otherwise made a substantial effort to prevent the commission of the offense, under circumstances manifesting a voluntary and complete renunciation of his criminal purpose.
Because his sole action was the retrieval of his money, we hold that Flaherty failed to renounce the conspiracy.
Furthermore, we do not agree that Flaherty withdrew as an accomplice when he retrieved his money. Ark. Stat. Ann. § 41-303(1) (Repl. 1977) provides:
A person is an accomplice of another person in the commission of an offense if, with the purpose of promoting or facilitating the commission of an offense, he: (a) solicits, advises, encourages or coerces the other person to commit it; or (b) aids, agrees to aid, or attempts to aid the other person in planning or committing it. . . .
Flaherty became an accomplice to the crime of conspiracy when he agreed to join the conspiracy and provided funds for the accomplishment of its purpose. Thus, he failed to avoid liability as an accomplice, according to Ark. Stat. Ann. § 41-305(2) (Repl. 1977), which, in pertinent part, provides:
It is an affirmative defense to a prosecution for an offense respecting which the liability of the defendant is based on the conduct of another person that the defendant terminates his complicity prior to the commission of the offense and. . . . (Emphasis added)
The conspiracy was in effect at the time Flaherty joined it, and his act of putting money into the scheme sealed his status as an accomplice and co-conspirator.
The trial court, however, was correct when it determined Atkinson was not an accomplice as a matter of law. Atkinson’s uncontradicted testimony was that, while he did store boxes delivered to his apartment, and transported some of them for delivery to Howell and Boyce, he did not know what the boxes contained. The court in Cate v. State, 270 Ark. 972, 606 S.W.2d 764 (1980), quoted the commentary to Ark. Stat. Ann. § 41-707 (Repl. 1977), the conspiracy statute, as being helpful in determining accomplice status. The commentary states that the phrasing “the purpose of promoting or facilitating the commission of any criminal offense” serves to exclude from the provision’s application persons who engage in conduct that furthers the ends of a conspiracy, but who have no purpose to do so. Because Atkinson’s knowledge of the conspiracy was in dispute, his complicity was a fact issue which was properly presented to the jury.
Holding that the trial court erred in failing to instruct the jury that Flaherty was an accomplice as a matter of law, we now consider appellant’s second point: that the trial court erred in denying his motion for a directed verdict. Directed verdict motions are challenges to the sufficiency of the evidence. Glick v. State, 275 Ark. 34, 627 S.W.2d 14 (1982); Walker v. State, 13 Ark. App. 124, 680 S.W.2d 915 (1984). The test for determining the sufficiency of corroborating evidence is whether, if the testimony of the accomplice is disregarded, there is other independent evidence to establish the crime and connect the defendant with its commission. Linell v. State, 283 Ark. 162, 671 S.W.2d 741 (1984); Walker, supra.
Excluding the testimony of accomplices Howell, Boyce and Flaherty, Atkinson’s testimony is the only evidence that could conceivably connect the appellant with the conspiracy offense. Atkinson testified that, on one occasion, Howell and Boyce were driving a white van with a greenish-blue stripe on its side when they picked up some boxes at his apartment. He said he did not know the owner of the van, but after the arrests were made, he saw the van at appellant’s attorney’s office, and saw appellant get out of it. He testified that he thought it was the same van that had been driven by Boyce and Howell, and it was distinctive because of the stripe down its side. While one might infer from Atkinson’s testimony that the van used by Howell and Boyce belonged to appellant, there is simply no corroborating evidence that connects or places him personally with any of the related acts of the conspiracy. At most, Atkinson’s testimony raises only a suspicion of involvement on appellant’s part. Because evidence which merely raises a suspicion that an accused may be guilty is not sufficient, Polland v. State, 264 Ark. 753, 574 S.W.2d 656 (1978), we have no alternative but to reverse the judgment and dismiss the cause. In so holding, we need not discuss the remaining issues.
Reversed and dismissed.
Cloninger, J., agrees.
Mayfield, J., concurs. | [
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Donald L. Corbin, Judge.
This is an appeal by appellant State of Arkansas, Second Injury Fund, from a Workers’ Compensation Commission decision holding that appellee Harold Girtman had a prior wage loss disability as a result of an on-the-job injury sustained in 1979 while employed by appellee Banquet Foods. The Commission affirmed the Administrative Law Judge’s award holding appellant liable for wage loss disability, if any, to be determined at a future date and holding appellee Banquet Foods responsible for the payment of the 40% anatomical rating of disability for the second injury of June 17,1981. We reverse and remand.
Appellee Girtman did not file a workers’ compensation claim with appellee Banquet Foods following his injury of 1979. He remained off work for six months and underwent surgery to his low back area. The Veteran’s Administration paid for his medical expenses and he was paid weekly indemnity benefits under his health and accident policy. Appellee was released to return to work without any restrictions or limitations by his surgeon. Appellee resumed his employment with appellee Banquet Foods performing light duty and returned to full duty as a fork lift operator three or four months' later. This was the same job he performed with appellee Banquet Foods prior to his injury and he was subsequently paid the same wages. Appellee was not rated with an anatomical impairment rating as a result of his first injury and surgery. He testified that his back was doing “good” prior to his second injury of June 17, 1981. Appellee Girtman also testified that he was able to cut firewood on weekends following his first injury. He stated that he could perform all of his work-related duties as before, except lifting. This statement was qualified by appellee who stated that most of his duties consisted of driving the fork lift and he very seldom had to lift.
Appellee Girtman’s second injury occurred on June 17, 1981. There is no dispute by any of the parties as to its compensability. Surgery was subsequently performed on his lower back by Dr. I. Leighton Millard. Appellee returned to work in September 1982. On November 11, 1982, Dr. Millard rated appellee Girtman with a 10% pre-existing anatomical impairment from the 1979 injury and subsequent surgery and a 40% anatomical impairment from the June 17,1981, injury. Appellee has not worked since July 1983 and stated at the hearing that he continued to have a lot of pain, was stiff, unable to lift objects and took medication for pain.
Appellant contends that the Commission erred in finding appellee Girtman had a prior disability or impairment pursuant to Ark. Stat. Ann. § 81-1313(i) (Supp. 1985). In this regard, appellant argues that there is no evidence to support the Commis sion’s decision that appellee Girtman was continuing to suffer from permanent disability before and after the second injury. The Commission held that appellee Girtman had suffered a wage loss disability as a result of the first injury. It further found that the 10% medical impairment appellee received after the first back surgery would have made him handicapped if he had attempted to find other employment. Appellant Second Injury Fund notes in its brief that there are very few, if any, Arkansas workers who are completely free of any degree of medical or anatomical impairment to every part of their body. It argues that to adopt appellees’ contention and the decision of the Commission would warrant Second Injury Fund exposure in virtually every Workers’ Compensation case, bankrupt the Fund, and not serve to encourage the employment of truly handicapped workers.
On appeal, this Court is required to review the evidence in the light most favorable to the Commission’s decision and to uphold that decision if it is supported by substantial evidence. Ark. Stat. Ann. § 81-1325 (Supp. 1985). Even when a preponderance of the evidence might indicate a contrary result, we affirm if reasonable minds could reach the Commission’s conclusion. Questions of credibility and the weight and sufficiency of the evidence are matters for determination by the Commission. The Commission is better equipped by specialization and experience to analyze and translate evidence into findings than we are. Bemberg Iron Works v. Martin, 12 Ark. App. 128, 671 S.W.2d 768 (1984).
Ark. Stat. Ann. § 81-1313(i)(1) (Supp. 1985), provides in pertinent part as follows:
The Second Injury Fund established herein is a special fund designed to insure that an employer employing a handicapped worker will not, in the event such worker suffers an injury on the job, be held liable for a greater disability or impairment than actually occurred while the worker was in his employment. The employee is to be fully protected in that the Second Injury Fund pays the worker the difference between the employer’s liability and the balance of his disability or impairment which results from all disabilities or impairments combined ....
Commencing January 1, 1981, all cases of permanent disability or impairment where there has been previous disability or impairment shall be compensated as herein provided ....
In its opinion, the Commission correctly relied upon Craighead Memorial Hospital v. Honeycutt, 5 Ark. App. 90, 633 S.W.2d 53 (1982), for the proposition that while a prior condition need not have been a compensable injury, it must be independently producing some degree of disability before the second injury and continue to operate as a disability after the second injury in order for it to constitute a previous disability or impairment. We hold that while the Commission cited the correct test in determining whether the Second Injury Fund was liable, there is no evidence that appellee Girtman’s first back injury was, in itself, independently producing any disability prior to and following his second back injury. Although not controlling, it is clear from the evidence that appellee Girtman was not rated with any disability following his first injury. He had no limitations or restrictions placed upon him. The physician who performed the second operation rated appellee Girtman’s anatomical disability at 10% some three years after the first injury. Appellee Girtman was able to return to full duty performing the same work at the same wage after the first injury. Appellee Girtman testified that his back did well after the first injury and that he was still able to cut firewood. The Commission’s statement in its opinion that “[T]he 10% medical impairment rating pertaining to the first back injury most likely would have been a handicap if claimant had attempted to obtain another job or if his employer and coworkers had not been sympathetic,” is not supported by the evidence. We believe the Commission engaged in speculation here. There is no evidence that appellee Girtman had ever been turned down for similar employment nor any evidence that his earning capacity had been reduced by virtue of the first injury in 1979.
“Disability” is defined at Ark. Stat. Ann. § 81-1302(e) (Repl. 1976), as meaning incapacity becauseof injury to earn, in the same or any other employment, the wages which the employee was receiving at the time of the injury. “Impairment” means loss of earning capacity due to a non-work related condition. Osage Oil Co. v. Rogers, 15 Ark. App. 319, 692 S.W.2d 786 (1985). It is clear that appellee Girtman’s injury of 1979 was not a disability or impairment and that, therefore, appellant Second Injury Fund has no liability under the law. This cause is remanded to the Commission with directions to enter an order consistent with this opinion.
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Melvin Mayfield, Judge.
This is an appeal from a decision of the circuit court, sitting without a jury, which held that appellee, James Baker, was not the father of appellant’s children, Stanley and Ebony. We affirm.
Without detailing the evidence introduced, we think it sufficient to say that appellant testified that appellee was the father of the children; that there was some evidence to corroborate that possibility; and that appellee admitted a sexual relationship with appellant but testified that this relationship had ended more than a year before her first child was born.
Pursuant to an order of the court, appellant, appellee, and the two children were given blood tests to determine the likelihood of appellee’s being the father. Through arrangements made by the Child Support. Enforcement Unit, blood samples were drawn in Blytheville, Arkansas, and sent to the National Paternity Laboratories, Inc., in Dayton, Ohio, for testing. The lab report stated that the test results indicated that appellee could not be excluded as a possible father of the children, and it was calculated that the likelihood he was Stanley’s father was 190 to 1, and for Ebony the likelihood was 101 to 1.
When this lab report was offered into evidence by appellant, the appellee objected unless the expert making the blood test was present for cross-examination. Appellant declined the option to seek a continuance so that the witness could be present and the court reserved ruling on the report’s admissibility until briefs were filed after trial. After considering the briefs, the court ruled the report inadmissible and found for the appellee on the basis that appellant had failed to meet her burden of proof. The appellant argues that under Ark. Stat. Ann. § 34-705.1 (Supp. 1985), the report was admissible. That statute, which is the first section of Act 127 of 1955, as amended in 1981 and 1983, provides as follows:
Whenever it shall be relevant to the prosecution or the defense in an illegitimacy action, the trial court may direct that the defendant, complainant and child submit to one (1) or more blood tests or other scientific examinations or tests, to determine whether or not the defendant can be excluded as being the father of the child, and to establish the probability of paternity if the test does not exclude the father [defendant]. The results of the tests shall be receivable in evidence. The tests shall be made by a duly qualified physician, or physicians, or by another duly qualified person, or persons, not to exceed three (3), to be appointed by the court. The costs of the test shall be taxed as other costs in the case or, in the court’s discretion, may be taxed against the county. Such experts shall be subject to cross-examination by both parties after the court has caused them to disclose their findings.
We do not agree with appellant’s argument that this statute makes the results of the tests admissible and that it simply permits the persons who performed the tests to be cross-examined after the court has caused them to disclose their findings. To the contrary, the statute clearly states that these experts shall be subject to cross-examination. Thus, we think the trial court was correct in ruling that the lab report was not admissible since the persons who performed the blood tests at the laboratory in Dayton, Ohio, were not available for cross-examination.
We also note that this statute may not even apply in this case since the appellant’s abstract does not indicate that the persons (or person) who made the tests were appointed by the court. Furthermore, we are not unmindful of the fact that the second section of the 1955 Act was amended by the 1985 General Assembly to provide that a written report of the test results by a duly qualified expert performing the tests, certified by an affidavit duly subscribed and sworn to by him before a notary public, may be introduced in illegitimacy actions without calling such expert as a witness; and if either party desires to question the expert, the party shall have him subpoenaed within a reasonable time prior to trial. See Ark. Stat. Ann. § 34-705.2 (Supp. 1985). However, at the time this present case was tried, that section applied only to the State Medical Examiner, see Ark. Stat. Ann. § 34-705.2 (Repl. 1962).
Appellant also contends the report of the test results should have been admitted because Unif. R. Evid. 803(24) provides that a statement having sufficient circumstantial guarantees of trustworthiness is admissible, even if hearsay, if the statement meets the criteria set out in the rule. There are at least two answers to this argument. In the first place, the criteria set out obviously grants the trial court broad discretion in determining whether such a statement should be admitted, and we cannot say that discretion was imprudently exercised in this case. Also, as we have already said, Ark. Stat. Ann. § 34-705.1, supra, expressly states that after the tests have been received into evidence, the persons performing them shall be subject to cross-examination, and Winston v. Robinson, 270 Ark. 996, 606 S.W.2d 757 (1980), held that the Uniform Rules of Evidence did not repeal the provisions of Ark. Stat. Ann. § 34-705.1. So, we cannot agree that the Uniform Rules of Evidence required the court to admit the lab report into evidence.
Appellant’s next argument is that the trial court erred by placing an incorrect burden of proof on her. This suit is a civil proceeding and it was the appellant’s burden to prove her case by a preponderance of the evidence. McFadden v. Griffith, 278 Ark. 460, 647 S.W.2d 432 (1983). A preponderance of the evidence means the greater weight of the evidence — the evidence which, when weighed with that opposed to it, has more convincing force and is more probably true and accurate. See Arkansas Model Jury Instruction 202. Appellant’s argument that the trial court applied the wrong burden of proof is based upon the judge’s remarks made at the conclusion of the trial of this case. The judge stated:
[E] ven though the scales were heavily tipped in favor of the plaintiff at the time she rested, which I suppose is always the case in every case. . . . Considering all the facts and circumstances, there leaves a question as to the burden of proof and the Court is of the opinion at this stage that the plaintiff has not met the burden. The lab report test concerning the paternity is, in the mind of the court, essential to this case.
After the briefs were filed on the question of the admissibility of the report on the blood tests, the court held the report inadmissible and found that the appellant had not met her burden of proving appellee the father of her children.
We see nothing in the remarks of the court, or in the findings of fact set out in his opinion letter to the attorneys, or in the judgment entered of record to indicate that the court considered the appellant’s burden of proof to be anything other than by a preponderance of the evidence. In fact, the judge’s remark about tipping the scales is certainly in keeping with the concept of determining the weight of the evidence, which is the very essence of what the preponderance of the evidence means. However, under the provisions of ARCP 52(a), our problem is to determine whether the trial judge’s finding of fact was clearly against the preponderance of the evidence. After a careful review of the evidence, we cannot find that it was.
Affirmed.
Cracraft, C.J., and Corbin, J., agree. | [
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Smith, J.
McKeogh sued Mrs. Cogswell, alleging that he, being indebted to her, executed two mortgages, one for $608 and another for $1,500, on certain household goods and furniture, to secure said sums. That he was 'tenant of defendant, occupying and renting from her a hotel in Hot Springs. That the money being due and unpaid on the mortgages, they entered into a contract by which she agreed to take all the property included in the mortgages at a sum equal to the amount paid out by him for same, less whatever certain arbitrators should say the property had been damaged by use, etc., and would pay him for all improvements made by him on the hotel during his tenancy; that he gave possession of the hotel with the furniture, and afterwards she refused to submit the matter of value and damage to arbitrators, as agreed; that the mortgaged property and the improvements were of the value of $4,175.25, less $400 for use and wear. He sues at law for the difference between the mortgage debts and the alleged value of the mortgaged property and the improvements.
The answer denies any indebtedness to the plaintiff; denies that the transaction with reference to the $608 and that part of the furniture involved by said transaction was a mortgage, but charges that it was an absolute bill of sale of that part of said property known as the Bryson & Camp furniture, .for said sum of $608, and exhibits the bill of sale; denies the agreement, as stated by plaintiff, by which she took the furniture, but states that the agreement was that she was to take the furniture included in this mortgage to secure the $1,500, at such sum as certain arbitrators should say was its real value at'that date; denies that she refused to keep the agreement as made to ascertain value, but charges that she was ready and willing to conform to the same and selected arbitrators for that purpose, and that he, in violation of the agreement, contended that the cost price of the furniture to him, less the depreciation from use, should be the basis of the settlement of value; further denies that the property was of the value of her debt against the plaintiff.
The answer concluded by a motion to transfer the case to the equity docket and for a reference to a master to take and state an account between the parties. This motion was denied.
A trial was then had, in the course of which each party testified as to the terms of the agreement under which McKeogh relinquished his right of redemption in the mortgaged chattels, the value of the property and the other matters in controversy. McKeogh swore that the bill of sale exhibited by Mrs. Cogswell with her answer, was not in fact a sale, but was intended as a mere security for money paid out by her to relieve the furniture from the claims of Bryson & Camp. And the court charged, “ That if the jury believed from the preponderance of the evidence that the instrument purporting to be a bill of sale was in fact given as security for money loaned or advanced plaintiff, then it was a mortgage and they will so consider it in arriving at their verdict. ”
The jury returned a verdict in favor of plaintiff for $879.15.
And the sole ground of the motion for a new trial is, that the verdict is against law and evidence.
It is unnecessary to decide whether the application for transfer to equity should have been granted. No exceptions were saved to the decision of the court in that matter, and the error, if any was committed, was waived. Mansf. Dig., sec. 4927; Brewer vs. Winston, ante.
This court declared, in George v. Norris, 83 Ark., 121, that at law parol evidence is inadmissible to show that a transaction witnessed by a bill of sale was not an absolute sale, but only a mortgage; although rule is well known to be different in equity. But Mrs. Cogswell took no exceptions either to the introduction of the testimony, or to the charge of the court. And objections to evidence or instructions come too late after verdict. They must be taken at the time and insisted on in the motion for new trial. McCarron v. Cassidy, 18 Ark., 34; Allen v. Hightower, 21 ib., 316; Graham v. Roark, 23 ib., 19; Crump v. Starke, ib., 131; Cheatham v. Roberts, 23 Ark., 651; Burris v. State, 38 ib., 221; Peterson v. Gresham, 25 ib., 380; Knox v. Hellums, 38 ib., 413; Ray v. Light, 34 ib., 42l.
It was a question of fact for the jury to determine, whether the plaintiff’s or defendant’s version of the final contract of sale was the true one; and their determination in favor of the plaintiff is decisive.
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Smith, J.
Adler, G-oldmau & Co. recovered a judgment against J. R. Richardson & Bro., a firm composed of John R. and Joseph B. Richardson, for $3,559.59. An attachment, which had been previously levied upon all the property of the firm, as well as the individual property of the partners, was at the same time sustained.
Upon the issue of a special execution for the sale of the attached property, the said John R. and Joseph B. filed, in the office of the clerk of the court from which the execution issued, their separate schedules under the exemption laws, setting out all the partnership assets, as well as their own private property, and claiming the exemptions which pertain to heads of families, viz.: a homestead and $500 worth of personal property, which they selected. The clerk granted a supersedeas as to all of the property so claimed as exempt. And the judgment creditor moved' the circuit court by petition to quash the supersedeas. The grounds of the several motions were that part of the personal property claimed by each of the defendants was partnership property; that John R. was not at any time a-married man, nor the head of a family; nor was Joseph B. such at the time the attachment was levied ; and moreover that Joseph B. was not in any sense the owner of the house and lot claimed by him as a homestead.
The evidence tended to show that John R. had been living in a house built by him on his own land, and had been keeping house there for a number of years before this controversy arose. He had no wife nor children ; but a widowed sister, who was in feeble health, and measurably dependent on him for support, resided with him.
The residence claimed by Joseph B., as a homestead, had been built with partnership funds on a lot of four acres in the town of Melbourne, which belonged to John R., and had been occupied by Joseph B., his wife and her sister, for several years. But his wife having died, the establishment had been broken up before the attachment was levied, the house was rented, and the sister in-law sent off' to board. But he had married again after the rendition of the plaintiff’s judgment and was living in the house when he filed his schedule.
There was no contract in writing between the partners in relation to the lot, but a parol understanding that, when the partnership should be wound up, Joseph B. was to take the house and some ground as part of his share of the assets of the firm. He claimed one acre around and near the house.
The circuit court found the facts to be : That John R. Richardson was a resident of Arkansas, was the head of a iamily, and was entitled as such to hold the property claimed as a homestead, as well as all the personal property, except a mule and planing machine and fixtures, which he could not hold as exempt because it was partnership property.
The supersedeas was therefore quashed as to the partnership property, and sustained as to the other personal-property and the homestead. From its judgment both parties appealed.
In the other case the court stated the facts to be:
First. That Joe B. Richardson was not a married man, nor head of a family at the time of the levy of the attachment and the rendition of the judgment.
Second. That the land upon which the said residence claimed as homestead was situated, was, at the date of the-schedule filed, the property of John R. Richardson, and that appellant had no title, legal or equitable, thereto. That the residence thereon was partnership property. And it declared the law to be that appellant was not entitled to claim the homestead, nor the partnership personal-property above named. That of the property attached he was entitled to claim as exempt the amount of two hundred dollars’ worth, and no more, but discharged the supersedeas in toto. Richardson appealed.
It is doubtful whether, after a judgment of condemna-1. tion m the attachment suit, it is still competent for the defendant to set up his claim of exemption out of the property attached. The safer course is to move the court, while the suit is pending, to quash so much of the sheriff’s return as shows a levy of the writ upon exempt property ; as was done in Grubbs v. Ellison, 23 Ark., 287. Compare on this point, Drake on Attachment, sec. 244 a; Waples on Attachment, pp. 164-7; Thompson on Homesteads and Exemptions, sec. 826; State v. Manly, 15 Ind., 8; Perkins v. Bragg, 29 ib., 507; Haas v. Shaw, 91 ib., 385; State, ex rel. Kahoon v. Krumpus, 13 Neb., 321; Close v. Sinclair, 38 Ohio St., 530; Willis v. Matthews, 46 Texas, 478; with the reasoning of the court in Turner v. Vaughan, 33 Ark., 454; Miller v. Sherry, 2 Wallace, 237; Haynes v. Meek, 14 Iowa, 320.
But since the creditor has not pleaded the previous adjudication in bar of the debtor’s subsequent claim to hold a portion of the property as exempt, nor insists here upon any. benefit thereof; since, moreover, section 3006 of Mansfield’s Digest is somewhat ambiguous in regard to the time and manner of claiming and ascertaining exempt property which is attached; and since the parties and their counsel and the court below have acted upon the supposition that the claim may be preferred at any time before the property is actually sold, we pass this question without determining it.
The members of an insolvent firm are not entitled to exemptions, allowed by law, out of the partnership property after jt has been seized to satisfy the demands of creditors of the firm. This proposition is well settled both upon reason and authority. The interest of each partner in the partnership assets is his portion of the residuum after all the liabilities of the firm are liquidated and discharged. Property belonging to the firm cannot be said to belong to either partner as his separate property. It is contingent and uncertain whether, any of it will belong to him on the winding up of the business and the settlement of his accounts with the firm. “ Joint property is deemed a trust fund, primarily to be applied to the discharge of partnership debts, against all persons not having a higher equity. A long series of authorities has established this equity of the joint creditors, to be worked out through the medium of the partners ; that is to say, the partners have a right inter sese, to have the partnership property first applied to the discharge of the partnership debts, and no partner has any right, except to his own share of the residue, and the joint creditors are, in case of insolvency, substituted in equity to the rights of the partners, as being the ultimate cestuis que, trust of the fund to the extent of the joint debts.” Story's Eq. Jur., sec. 1253; Pond v. Kimball, 101 Mass., 105; Gaylord v. Imhoff, 26 Ohio St., 317; Giovanni v. First Nat. Bank of Montgomery, 55 Ala., 305; In re Handlin, 3 Dillon, 290.
To sustain the finding of facts, that John R. Richardson was the head of a family at the date of the levy of the attachment, while Joseph B. was not — the record contains abundant testimony. The subsequent marriage of Joseph B. had no effect on the rights of the parties. The lien relates back to the levy of the attachment, creating from that moment an inchoate charge, which was per-* fected by the rendition of judgment and which could not foe divested by any change in the status of the parties. Frellson v. Green, 19 Ark., 376; Harrison v. Traden, 29 ib , 85; Huxly v. Harold, 62 Mo., 516.
Furthermore, Joseph B. Richardson was not the owner of the house and lot claimed by him as a homestead, within the meaning of section 5, of article 9, Constitution -of 1874. The legal title of the tract of four acres, of which it formed a part, stood in the name of his partner, who had, very recently before, treated it as his own by executing a deed of trust upon the whole of it. And the house was built with partnership funds. The verbal contract between the partners was too loose and indefinite to give any rights which a court of justice would protect and enforce. No price was mentioned, and the dimensions of the lot were not fixed. The consummation of the purchase depended upon two conditions : First, a settlement of the partnership ; and second, that upon such settlement something should be due Joseph B. as his share of the assets. Neither of these contingencies has arisen. No settlement of the partnership has been had; nor are there any effects to be divided between the partners, the concern being largely in debt.
The judgments in both cases are in all things affirmed. | [
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Smith, J.
These two cases were decided on substantially the same facts. Both were actions for damages, brought by personal representatives, for the negligent killing of their intestates, who were passengers on a train operated by Sibley as receiver. The answers denied negligence and averred that the deceased had met death by their own negligence in voluntarily aud unnecessarily occupying a position upon the platform while the train was running. In the case last above mentioned, the jury, under the instructions of the court, found the issue for the defendants. In the other case, the plaintiff recovered judgment for $2,500.
Salinger and Goldberg were traveling on the west-bound train from Memphis and occupied seats in the ladies’ coach until they reached Forrest City, the supper station. After that, they went out upon the platform to smoke. They were warned by the brakeman and also by the conductor that it was dangerous to ride there, but replied that they would go' inside as soon as they had finished their cigars. About four miles west of Forrest City was a bridge or trestle. The engine and tender passed over safely, but the express, baggage, smoking and emigrant cars broke through the bridge and turned over either completely or partially. One hundred and eight passengers were aboard, of whom, as it appears, none were killed or even seriously injured, except Salinger and Goldberg, who were standing on the platform between the ladies’car and the emigrant car, andAdair, who was in the baggage car. The seating capacity of the passenger coaches in the train, exclusive of the sleeper, was one hundred and fifty. The front trucks of the ladies’ car left the track, but the car did not turn over. The sleeping car in the rear did not run off.
The following are the only directions that are complained of here in Salinger’s case:
Third — “One who is injured by the negligence of another cannot recover any compensation for the injury if he, by his own ordinary negligence or willful wrong, materially contributes to produce the injury of which he complains, so that but for his concurring fault the injury would not have happened to him.”
Sixth — “ If the jury find that the defendant had attached to its train any suitable passenger car, and had assigned the plaintiff’s intestate a seat therein, and that there was room for him in such car, and that he voluntarily went upon the platform, and while there was advised by the officers in charge of the train to go into the car, but neglected to do so, and was killed in that position, and that no one in the car assigned to him was injured, they will find that the negligence of the plaintiff directly contributed to the injury, and will find for the defendant.”
Seventh — “If at the time of the accident the deceased was voluntarily and unnecessarily on the platform (that is, if there was room inside the car for deceased), this constitutes such contributory negligence as would prevent a recovery.”
In the case of Goldberg, the motion for a new trial alleged that the verdict was contrary both to the evidence and instructions; and also error in the charge of the court, and in its refusal to charge as requested.
That portion of the charge which was excepted to follows :
Second — “It is not controverted that when the deceased, Goldberg, was killed he was riding on the front platform of the ladies’ or first-class ear; but the question, whether so being on the platform was contributory negligence in such manner as to defeat his rights of recovery depends upon circumstances, and is a question for the jury; and, in determining this question, the court instructs the jury as follows:
“That the deceased, having a first class ticket, had a right to be in his seat in the first-class car, or in the second-class car, or, for the purpose of smoking, in the smoking car, and if injured in either of such positions by the defendant’s negligence he would have a right to recover. The question is whether standing upon the platform was a more dangerous position, and euhanced the defendant’s risk for his life and safety over and above the risk if he had been in any of the places where he had such right to ride.
“ The deceased, by taking a position on the platform, assumed the risk of such additional damages only as were naturally incident to such a position and such as a prudent man would have foreseen. If the event by which the deceased lost his life was in its nature such as endangered all parts of the train alike, and was as likely to have injured the deceased had he been in other places where he had the right to be as on the platform, then the being upon the platform did not contribute to the injury.”
Third — “ The question whether the standing upon the platform was more dangerous than in the cars must be determined by the nature of the accident which caused the injury, not by reference to any other accident which might have been expected to happen.
“It must be determined by the question whether a prudent man, in anticipation of such an accident, would have regarded and avoided the platform as a position where he would have been more likely to be injured than if in his seat in the ears; and if the jury believe that the nature of the accident was such as to threaten all positions in the cars alike, or that it threatened no more danger to one standing upon the platform than to one in the cars, then the jury will find that the deceased was not guilty of contributory negligence, notwithstanding they may believe he was warned not to stand there, and notwithstanding it appeared after the happening of the event that he would not have been injured in the car.”
The defendants asked the following instruction:
Fifth — “ There are 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 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 platform of a car cannot be said to be in the exercise of that discretion and caution which the law requires of all persons who are of full age, of sound mind and ordinary intelligence; and if he' suffers an injury in consequence of his occupping such a position, he cannot recover.”
This the court modified so as to read as follows:
“A passenger who voluntarily and unnecessarily rides upon the platform of a car cannot be said to be in the exercise of that discretion and caution which the law requires of all persons who are of full age, of sound mind and ordinary intelligence.”
The court also modified a direction prayed by the defendant, identical in language with No. 6 of the Salinger series above set out, so as to make it read thus:
“If the jury find that the defendant had attached to its train a suitable passenger car, and had assigned plaintiff's intestate a seat therein, and there was room for him in such car, and that lie voluntarily went upon the platform, and while there was advised by the officers in charge of the train to go into the car, but neglected to do so, and was killed in that position, and that no one in the cars assigned to him was injured, this is a circumstance, which in connection with all the other facts and circumstances connected with the accident, the jury may consider in arriving at a conclusion as to whether the deceased was guilty of such negligence and want of prudence as contributed to his death; and if they find, in view of all the facts connected with this accident, that the death of plaintiff’s intestate was due to the negligence of the defendants, and was contributed to by the negligence and want of care on part of deceased in being on the platform instead of in the seat assigned him, they will find for defendants.”
The court also refused a prayer of the defendants, the same in tenor and effect with No. 7, of the Salinger series, but gave a direction couched in the same language as No. 3/ of that series ; and also the following, at the instance of the defendant:
“ To establish the liability of the defendant as a passenger carrier two things are requisite: That the defendant should be guilty of some negligence which mediately or immediately produced or enhanced the injury; and that the passenger should not have been guilty of any want of ordinary care and prudence which contributed to the injury. But the burden of proving contributory negligence is on the defendant.”
The evidence was contradictory upon the points, whether the disaster to the train was due to the presence of rotten timbers in the bridge, and whether the defect was latent, or might have been discovered by the application of scientific tests. But the jury might well have resolved any doubts they may have had upon the subject by finding that the accident was not inevitable, and that the receiver had not done his whole duty to the traveling public by keeping his road in thorough repair. And if the passengers, who lost their lives, had been seated in the compartments provided for their accommodation, there would have been an end of the cases.
But back of this lay another question — whether these persons had not themselves so far contributed to their misfortunes by their own want of ordinary caution, that but for such negligence, they would have escaped unhurt. Now there is, and can be, no serious controversy that Salinger and Goldberg were, of their own choice and for their own pleasure, and not from necessity-, standing upon the platform, at the time of the accident, after repeated' warnings of their danger, and were killed in consequence of occupying that exposed position. And the jury in the Goldberg case, in order to reach their conclusion, must have ignored these facts, all of which are either conceded, or indisputably proved. Hence we have no hesitation in saying that the verdict is not supported by sufficient evidence. Eor they have found the issue of contributory' negligence directly contrary to what the facts are admitted to be.
The verdict is also contrary to the third and fourth directions given at the request of the defendants, and to the modification of the fifth and sixth. But the truth is the jury must have been mystified by the confused and ■contradictory charge of the court. The second and third directions for the plaintiff are cloudy, tending to obscure a very plain matter. They seem to tell the jury that notwithstanding Goldberg may have been guilty of negligence which contributed to his death, yet they, by virtue of their omnipotence as triers of the facts, might find ■otherwise, if they chose to disregard the evidence.
The instruction numbered 3, in both series, is taken from Shearman & Redfield’s work on Negligence, sec. 25, and is applicable to almost any case where the cause of action is a negligent injury, the defense contributory negligence and there is any testimony to support the defense.
The fifth prayer for defendants in the Goldberg series was based upon the opinion of this court in L. R. & F. S. Ry. v. Miles, 40 Ark., 322. We perceive no objection to-the prayer as originally framed. It is good law, pertinent to the case in hand and warranted by the state of the-proofs. Still we should never reverse a judgment which was righteous and just because the circuit court had refused an unobjectionable request and had substituted in its place a direction which conveyed the same general idea. The same thing may be said of the modification of the sixth prayer.
The seventh prayer as granted in the Salinger case-should have been granted in the Goldberg case. It is contributory negligence for a passenger to remain on the-.platform of a car propelled by steam, when there is no reasonable excuse for so doing, and after he has been specifically warned of his danger. And if an injury happen to him under such circumstances, through the company’s negligence, yet if it also appear that the injuiy would not have fallen on him but for his being in that particular position, the company may successfully defend against an action for such injury. Wharton on Negligence, sec. 364; Beach on Cont. Neg., sec. 54; Hickey v. B. & L. R. Co., 14 Allen, 429; Camden & Atlantic R. Co., 99 Penn. St., 492; Macon & Western R. Co. v. Johnson, 38 Ga., 409; Ala. Great Southern R. Co. v. Hawk, 72 Ala., 112; Quinn v. Ill. Cent. R. Co., 51 Ill., 495; Abend v. Terre Haute & I. R. Co., 111 Ill.
Contributory negligence is ordinarily a question of fact; but when the facts are not in dispute, the province of the jury is very much narrowed.
An action was brought in the circuit court of the United States for the eastern district of Arkansas, for the death of Adair, who was killed in the same wreck. The plaintiff was beaten upon the issue of contributory negligence, the proof showing that, for the purpose of smoking, he had gone into the baggage car, a place not intended for the reception of passengers, and was there when the train fell through the bridge.
The judgment of the Pulaski circuit court is affirmed, and the judgment of the St. Francis circuit court is reversed, and the cause remanded to be proceeded with in conformity to this opinion. | [
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Lawson Cloninger, Judge.
This case arises as the result of a fire which occurred at a home located at #3 Cottonwood, Little Rock, Arkansas, owned by Donald A. McCorkle, appellant, and his former wife, Jean McCorkle McKim. After a police investigation, it was determined that the cause of the fire was arson. The home was insured against fire loss by appellee, Valley Forge Insurance Company, in the amount of $78,750 for the real property coverage. Personal property was insured for up to $39,375. Further, the expenses for loss of use were reimbursable up to $15,750. McCorkle made a claim for one-half the real property damage, $36,119.31 for personal property loss, and $15,750 for additional living expenses he incurred. The insurance company answered that the policy was void ab initio because of McCorkle’s misrepresentations regarding the value of the property and alleged that McCorkle had conspired to commit arson.
After hearing all the testimony, the chancellor ruled that appellee had failed to prove that McCorkle was involved in the arson and held that appellee was responsible for any deterioration of the property since the fire occurred. Further, the chancellor initially decided to award appellant $21,040 for personal property loss.
On December 29, 1982, the chancellor issued another letter stating that McCorkle was only entitled to $66,277 for the damage to real property. He also said that he was changing his mind and awarding no damages for the personal property. Finally, the chancellor refused to award damages for additional living expenses. Judgment was not entered until April 14, 1983. Appellant now brings this appeal, and appellee has cross appealed.
Appellant’s first point for reversal is that the trial court erred in failing to declare the house a total loss and award damages pursuant to Ark. Stat. Ann. § 66-3901 (Repl. 1980). In his letter opinion, the chancellor noted that two years had expired since the fire. He said that the insurance company was justified in refusing to settle because of the fact that arson was the cause of the fire and there was evidence presented to indicate McCorkle might be involved. The chancellor held, however, that since he had found McCorkle was not involved in the arson, that the fire did not result in a total loss and that the damages the day after the fire were $53,222, the insurance company was responsible for any deterioration which may have occúrred. He refused to accept the deposition of Harvey Mixon, an appraiser, as credible. Mr. Mixon regarded the house as a total loss on January 15, 1981. The appraiser never went inside the house, however, and the chancellor was not convinced that the house was beyond repair. Appellant now alleges that the chancellor erred in holding that the house was not a total loss and that the chancellor arbitrarily awarded 10% repair cost increases for two years for an award of $66,277.
The findings of the chancellor will not be disturbed unless they are clearly against a preponderance of the evidence, and when the issue turns largely on the credibility of the witnesses, the appellate court will defer to the superior position of the chancellor. Andres v. Andres, 1 Ark. App. 75, 613 S.W.2d 404 (1981).
The only Arkansas case which has touched on this issue is Employer’s Liability v. Mid-State Homes, 250 Ark. 789, 467 S.W.2d 386 (1971). There the Arkansas Supreme Court reversed the finding of the trial court and held that where the insured homeowner took no steps to protect the insured property against additional damage for three years follow ing the fire and there was ample evidence that additional damage was sustained, the insurer was not liable for the total loss of the building at the time of trial but was only liable under its contract for the cost of repairing the building within a reasonable time after the fire. In Employer’s Liability, supra, the policy provided for immediate notice of any loss and provided that the insured protect the property from further damage. On the facts, approximately fifteen months elapsed between the date of the fire and the proof of loss provided to the insurance company. There was an additional delay of approximately fourteen months between Employer’s intervention and the trial, and there was a total delay of three years and four months between the date of the fire and the entry of the decree. The court held that the homeowner was negligent in not reporting and following up on his claim against Employer’s. The court also held, however, that Employer’s was also negligent in its failure to ascertain the amount of damage to the building and in its handling of the claim even after it had notice of loss. Hence the court held that the equities were evenly balanced between the parties and that the preponderance of the evidence regarding the cost of repairs within a reasonable time following the damage caused by the fire was found in the testimony of Casey Jones, a construction contractor. Therefore, the insureds were only entitled to judgment for his maximum estimate of $5,500.
In the instant case, the insurance policy excluded from coverage neglect of the insured to use all reasonable means to save and preserve property at and after the time of loss. Further, the policy had a provision for the homeowner’s duties after a loss occurs. One of the duties was to protect the property from further damage, make reasonable and necessary repairs required to protect the property and keep an accurate record of repair expenditures. The chancellor found that the insurance company was responsible for the deterioration which occurred after the fire. However, he arbitrarily awarded a 10% repair cost increase because he refused to accept Mr. Mixon’s testimony that the house was a total loss. Since we defer to the chancellor’s superior position to judge the credibility of the witnesses, we must also disregard Mr. Mixon’s testimony. We cannot, however, sustain the chancellor’s finding of a 10% repair cost increase because there is no evidence in the record to support it. Because there is no other evidence of deterioration of the property since the fire, we reduce the amount of damages to $53,222, representing the loss the day after the fire.
Appellant’s second point for reversal is that the court erred in failing to sustain the owner’s evaluation of his personal property and to award that amount of damage, specifically $36,119.81. The trial court had pointed out initially that appellant had proved his damages to personal property. The trial court even pointed out that there was no evidence to show the property was not worth what McCorkle stated. Yet in a second letter the trial court decided to award McCorkle no damages for his loss of personal property. It is a rule in Arkansas that testimony of the owner of personal property concerning the value of that property is sufficient evidence to prove value. Farm Bureau Mutual Insurance Co. v. Cusick, 235 Ark. 27, 356 S.W. 2d 740 (1962). However, a party seeking damages has the burden of proving the claim, and, if no proof is presented to the trial court that would enable it to fix damages in dollars and cents, the court cannot award damages. See Winkle v. Grand National Bank, 267 Ark. 123, 601 S.W.2d 559 (1980); Mason v. Russenberger, 260 Ark. 561, 542 S.W.2d 745 (1976).
In the instant case, Mr. McCorkle testified extensively regarding the destruction of personal property in the loss. Further, he introduced into evidence an itemized statement with regard to the replacement value of the personal property lost. This evidence, however, was refuted by appellant’s ex-wife who alleged that many of the items listed were now in her possession and that the price listed for a part of the furniture was too high. The chancellor chose to believe Mrs. McKim and held that appellant’s itemized statement was at best an exaggeration and at worst a fraud on the insurance company. We cannot say his decision is clearly against a preponderance of the evidence.
Similarly, appellant’s third point for reversal is that the court erred in failing to award any damages to McCorkle for additional living expenses. In contrast, though, to the owner’s evaluation of his personal property, appellant did not offer any evidence which would enable the trial court to fix damages in dollars and cents. See Winkle v. Grand National Bank, supra. Appellant testified that for several months he stayed in a motel that charged him between $800 and $900 a month, without stating the number of months or the specific monthly charge. He did not have any invoice or cancelled check to prove the amount of those payments. In fact, he did not offer any specific evidence to justify his prayer for $15,750 in damages for additional living expenses. Appellant’s only allegation is that he did incur expenses to maintain the standard of living he had enjoyed prior to the fire. It would have been an easy task for Mr. McCorkle to have provided the court with receipts or other evidence with respect to his living expenses. This he did not do and this point is without merit.
Valley Forge argues on cross appeal that the court erred in failing to find that arson was caused by the appellant or persons acting in concert with him. The incriminating evidence which was presented at trial is set out as follows:
1. The insurance coverage on the property was increased in October of 1979 by 40%, before the fire occurred in January of 1980.
2. The house was jointly owned by appellant and his ex-wife, and they had been ordered in October before the fire to sell the property within 60 days.
3. McCorkle had been sentenced to serve 15 years in the penitentiary for kidnapping, and it was alleged that he had no use for the house for several years.
4. Telephone records from a Jonesboro motel indicate that appellant called his answering service twice within a period of four minutes on midnight the night of the fire. Cross appellant argues that this should be considered as evidence of an attempted alibi by Mr. McCorkle.
5. The physical evidence indicated that newspapers soaked with diesel fuel had been stuffed inside cabinets, furniture, holes hacked in the walls, floors and ceiling. Further, neighbors had heard pounding noises eminat-ing from his house the Sunday before the fire. A fire investigator testified that it would have taken the person who set the house up for the fire a long time to do his work.
The evidence, although circumstantial, was sufficient to support a finding that appellant was in fact guilty of arson. However, the chancellor found that the insurance company had failed to prove that McCorkle had committed arson and therefore McCorkle was entitled to recover. It is our opinion that the chancellor’s decision on this issue was not clearly against a preponderance of the evidence.
Cross appellant also argues that the court erred in refusing to find that Mr. McCorkle attempted to defraud the insurance company and therefore the policy should have been void ab initio. The chancellor had found that Mr. McCorkle’s inventory of personal property listed was at best an exaggeration and at worst a fraud upon the insurance company. He was unable to say, however, that Mr. McCorkle had intentionally perpetrated a fraud upon the insurance company and declined to hold the policy void ab initio. The insurance company attempted to show that many of the items which Mr. McCorkle had listed had been removed from the house by his ex-wife and cross appellee, Jean McKim. Further, Mrs. McKim testified that many of the items were bought at different places from which Mr. McCorkle had stated and at a lower price. However, Mr. McCorkle never stated what price he had paid for the articles but instead stated what their replacement cost would be. This evidence went undisputed.
Cross appellant finally argues that the chancellor erred in awarding damage to real property for the deterioration of the property from the time of the loss to the time of the trial. We agree, although for different reasons stated earlier in the opinion.
Accordingly, the decision of the chancellor is affirmed as modified.
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34,
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10,
124,
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81,
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16,
11,
17,
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43,
21,
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77,
44,
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83,
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13,
127,
21,
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5,
64,
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0,
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100,
70,
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8,
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8,
38,
54,
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56,
58,
46,
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124,
64,
21,
124,
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108,
7,
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96,
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3,
-18,
39,
52,
112,
-49,
-30,
92,
87,
115,
-101,
30,
-41
] |
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