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LARRY D. VAUGHT, Judge
' 11Alisa Brown appeals the Arkansas Board of Review’s (the Board) decision affirming the Appeal Tribunal’s denial of her request for unemployment benefits based on its finding that she was discharged from her last work for misconduct in connection with that work. We affirm.
Brown was a professor at Pulaski Technical College (Pulaski Tech) in Little Rock for approximately twelve years prior to her termination. For the majority of that time, she received excellént performance evaluations.. In July 2015, she requested and was approved for intermittent leave under the féderal Family Medical Leave Act (FMLA) to be taken as needed, one to two days at a time, once or twice a month. Brown testified that she suffers from serious health conditions including anxiety, major depression, and stress-related gastrointestinal pain.
In 2015, numerous students complained about Brown, alleging that she was not on campus during required office hours, did not respond to student emails in a timely manner, |2and failed to post grades within a reasonable amount of time. Brown then used a class period to request that her students write letters to the dean to support her. On November 3, 2015, Brown received written warnings for addressing the grievances in class and changing the format of her class from an on-campus course to an online course without prior approval. In December and January, Brown received verbal counseling about the deficiencies that had led to the student complaints. Brown’s direct supervisor, Rebecca Sterling, observed one of Brown’s classes and found it unsatisfactory. The observation occurred on the fourth class meeting of the semester, but Brown was still going over the syllabus with her students and had not yet begun to teach substantive material. The evidence also revealed that Brown had- a pattern of failing to respond to emails and meeting requests, responding in an untimely manner, and responding in an unacceptable way. -
Brown received verbal counseling on December 11, 2015, and January 11, 2016. On February 12, 2016, Brown received a written counseling record that formally placed her on a performance improvement plan (PIP) that required her to - submit weekly lesson plans to her supervisor for approval, designate and adhere to’specific on-campus office hours, and promptly and courteously respond to all communications from her supervisor. In both the hearing testimony and the-appellate briefs, Brown and the representatives of Pulaski Tech repeatedly referred to Brown’s status under the PIP as being “on probation.” Brown appealed her probation to the school’s vice president for learning, Mary Ann Shope, who denied the appeal.
• | aSoon after Brown had been placed on probation, Pulaski Tech received a'faxed note hand-written on a physician’s prescription pad stating that Brown would not be working until further notice. Her supervisor testified that at approximately this time, Brown would soon run out of FMLA leave time but did have paid sick leave available. Brown did not return to work and did not respond to calls, emails, .and certified letters from Pulaski Tech requesting additional, information about her medical need for leave, which Pulaski Tech sought because she was originally approved for intermittent leave and was taking prolonged continuous leave. Neither Brown nor her doctor ever advised Pulaski Tech when or if Brown would be able to return to work. In late April, Pulaski Tech sent Brown a certified letter informing her that when her current contract expired in late May, it would not be renewed. Brown acknowledged receipt of that lettér (although she claims that she never received the previous certified letters Pulaski Tech had sent to her at the same address requesting additional information about her FMLA leave), and she emailed Pulaski Tech objecting to her termination.
Brown applied for unemployment benefits from the Arkansas Department of Workforce Services (Department) and was denied based on findings that she had been terminated due to misconduct related to her work and that she was unable to -perform suitable work. The Appeal Tribunal affirmed the finding of misconduct but reversed as to whether Brown was able to perform suitable work. The Board affirmed the finding that Brown was ineligible for. benefits because she had been ter minated from her last work for misconduct related to the work. This appeal follows.
This court has set forth the standard of review in unemployment cases:
On appeal, the findings of fact of the Board of Review are conclusive if they are supported by substantial evidence. Substantial evidence is such relevant evidence]^ a reasonable mind might accept as adequate to support a conclusion. We review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Board’s findings. Even when there is evidence upon whieh the Board might have reached a different decision, the scope of judicial review is limited to a determination of whether the Board could reasonably reach its decision upon the evidence before it.
Rivas v. Dir., 2013 Ark. App. 91, at 1-2, 2013 WL 543308.
On appeal, Brown argues that there, was insufficient evidence to support the finding that she was terminated for misconduct related to her work. A claimant is disqualified from receiving unemployment benefits if the claimant is discharged from his or her last work for misconduct in connection with the work. Ark. Code Ann. § 11-10-514(a) (Repl. 2012). Misconduct includes the violation of any behavioral policies of the employer, disregard of the employer’s rules, disregard of the standards of behavior that the employer has a right to expect from its employees, and disregard of the employee’s duties and obligations to his or her employer. McAteer v. Dir., 2016 Ark. App. 52, at 4, 481 S.W.3d 776, 779; Nibco v. Metcalf, 1 Ark. App. 114, 613 S.W.2d 612 (1981). Our ease law has long interpreted misconduct in this context not to be ordinary negligence, good-faith errors in judgment or discretion, or mere unsatisfactory conduct, unless they are of such a degree or recur so often as to manifest wrongful intent, evil design, or an intentional disregard of the employer’s interests. Maxfield v. Dir., 84 Ark. App. 48, 129 S.W.3d 298 (2003). It is the employer’s burden to establish misconduct by a preponderance of the evidence. Jones v. Dir., 2014 Ark. App. 426, 439 S.W.3d 85. Whether an employee’s behavior is misconduct that justifies the denial of unemployment benefits, is a question of fact for the Board to decide. Id. We must affirm the Board’s misconduct finding if it was supported by substantial evidence. Rivas, 2013 Ark. App. 91, at 1-2.
UThe Board’s decision outlines numerous instances of misconduct on Brown’s part, including that she had received multiple reprimands, was the subject of multiple student complaints, acted unprofessionally by using class time to ask students to write letters to support her, failed to show up for class, failed to keep office hours, impermissibly changed the format of her , course from .on-campus to online, performed inadequately in an observed class, and repeatedly failed to either come to work or provide necessary documentation as to her medical situation that prevented her from working. We hold that there was substantial evidence to support the Board’s finding of misconduct and affirm the denial of benefits.'
As to. her second point, Brown argues that “substantial evidence does not support the denial of unemployment benefits due to inability to work.” However, the only decision she has. appealed is the Board’s October 31, 2016 determination that she was ineligible for benefits due to misconduct. The Board’s decision contains no discussion or determination of her alleged inability to perform suitable work. The most recent decision about her ability to perform suitable work was the Appeal Tribunal’s-September 2016 reversal of the Department’s finding that Brown was also ineligible for benefits pursuant to section 11-10-507(3)(A) because she was unable to perform suitable work. The Appeal Tribunal found that she was able to perform suitable work and explained that as a' result of its reversal, Brown shall be eligible for benefits “if otherwise in compliance with the law.” However, it then noted that she “is not in compliance with the law, as she was -disqualified under Ark. Code Ann. § 11-10-514(a), as decided- above, for being discharged from her last work for misconduct.” The Appeal. Tribunal, therefore, found that Brown is able to perform suitable work but that the issue was essentially moot because she was disqualified from receiving benefits due to having | «been terminated for misconduct. In its subsequent review of the Appeal Tribunal’s decision; the Board did not address the issue of her ability to perform suitable work and ruled solely on the question of misconduct. Therefore, the current appeal presents no adverse ruling on this point for us to review.
Affirmed.
Harrison and Glover, JJ., agree.
. While the appellee’s brief states that it was the fifth class meeting, the decision of the Appeals Tribunal states that it was the fourth meeting, apparently because Brown testified that she had canceled á previous class. | [
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Lacy, Judge,
delivered the opinion of the Court:
This cause comes up by appeal taken by the defendant, from the judgment of the court below. The assignment of errors present these three questions: First. Did the Circuit Court err, in refusing to quash the writ? Secondly. In overruling the appellant’s motion for a continuance of the cause? And lastly, in not granting him a new trial? That .the court below decided rightly in refusing to quash the writ, there can be no doubt, for after the motion was made and overruled, the appellant appeared and pleaded to the action, and his appearance and plea cured whatever defects there might be to the writ, if indeed any existed. The object of the writ is to bring the party into court, and if he appeared and pleaded to a defective writ, its insufficiency is cured, and so it has been frequently ruled by this court.
It is equally clear that the court below did not err in refusing to grant a continuance of the cause, on the appellant’s motion and affidavit. The record proves that the cause was continued at the December term, 1838, on the motion and affidavit of the appellant, and that an order was then entered by consent, for the parties to take depositions generally.
The affidavit that was then filed and sworn to, shows that the continuance at the December term, 1838, was -asked for and obtained on account of the absence and materiality of the evidence of James Wise and James F. Ellis, two of the defendant’s witnesses. The affidavit which was filed and sworn to at the May term, 1839, shows that the motion which was made for a second continuance of the cause, was also asked for on account of the materiality and absence, of the testimony of James F. Ellis alone. The cause was once continued for James F. Ellis’ testimony, and the second continuance was refused on the appellant’s motion for the same identical evidence. The statute in regard to the subject of continuances declares, “ that no suit shall be twice continued for the same cause.” Rev. Statutes 631, section 85. The affidavit in behalf of the appellant in error for a second continuance, is defective in no other material point. It does not state as the statute requires, “ that the appellant had reason to believe that he could procure the attendance of the witnesses by/the next term of the court, or that he could procure his testimony by that term.” This statement the act requires upon every application for a continuance, and if the party in his affidavit fails to make it, then he has no right to a continuance. Revised Statutes, page 631, section 86.
The affidavit alleges that the appellant expects to prove by the absent witnesses, an offset of two hundred dollars against the appellees’ demand. This statement, according to the practice of the English, and in most, if not all of the American courts, would be wholly insufficient to entitle a party to a continuance. These expectations may be founded on slight and unreasonable grounds, and such as by no means amount to a firm1 conviction or belief, that he can prove the facts set forth in his affidavit, which the common law requires in every instance upon application for a continuance. Smalley v. Anderson, 4 Mon. 369; Owens v. Starr, 2 Litt. 232.
But our statute seems to have changed the whole course of the common law, as well as the practice of most if not all the courts of our own country; for it only requires the appellant to state that he expects to be able to prove the facts contained in his affidavit, by. the absent witness. The affidavit in this particular must therefore be considered as correct, for it strictly complies with the provisions of our statute, which is all it can be expected to do.
It will be recollected, that at the December term, 1838, an order was made, giving the parties’ leave to take depositions generally, and that the cause was then continued on motion of the appellant, for the want of JamesF. Ellis’ testimony; and that the case was not finally tried and decided until the May term, 1839. The appellant in error, then, had sufficient time to have procured the attendance of the witness, or his testimony, if he had used due diligence in preparing his case for trial. We hold the true rule on this subject to be, that he who seeks to relieve himself from the presumption of culpapble negligence, is bound to show such state of facts or circumstances, as will prove he has used due diligence, or as will take his case out of the legal inference which stands against him. In the present instance the appellant has wholly failed to slate in his affidavit any such facts ■or circumstances as will relieve him from the presumption of the rule. He shows no reasonable excuse why he did not take the deposition of the absent witness before he applied to do so, which was only two or three weeks prior to the commencement of the trial. There is no unavoidable circumstance alleged which prevented him. The appellant surely does not show a reasonable excuse for not using due diligence, when he alleges, that at the time he applied to take the witness’s deposition, he had left his former residence, and had removed to a remote part of Arkansas county. We are not positively informed when this application was made to take the deposition. Why is the fact not stated, and the exact time given? The presumption is, that but a short time before the trial, and that reference is conclusively sustained by the record, why did not the appellant apply to take the witness’s-deposition before? In failing to do so, he must therefore be considered as guilty of culpable negligence.
Again, the affidavit alleges, that the appellant was not apprised of the witness’s present residence, until two or three weeks before the commencement of the trial. It gives no excuse why he was not apprised of his present residence previous to that time, nor does he show that he used diligent search and inquiry to find it out. He certainly was not entitled to a second continuance unless he proved that he had diligently searched for and inquired after the residence of the witness, and that he could not possibly find out where he resided, nor could he by any practicable means in his power procure his testimony. In failing to state these important and essential facts, the affidavit is totally insufficient to authorize a suit, much less a second continuance, and therefore the court below acted properly in refusing the continuance.
It has been correctly argued by the counsel for the appellant, that the power to grant or refuse continuancy, is a sound, discretionary, legal power, inherent in all courts, and given for the express purpose of preventing delay and promoting the ends of justice; and that should the Circuit Court, in the exercise of its discretionary power, capriciously or arbitrarily sport away important rights belonging to either party, that their decisions and judgment would be examined in this court, and liable to be corrected on appeal or in writ of error. See Revised Statutes, 631; Rex v. D'Eon, 3 Burr. 1514; 1 W. Black. 514, S. C.; Ogden v. Payne, 5 Cowen 15; The People v. Vermilyea, 7 Cowen 388, 395; Hooker v. Rogers, 6 Cowen 577. This, is no doubt the correct rule on. the subject; but the case under con sideration does not fall within the principle stated, and therefore cannot be benelitted by it. It may be proper here to remark, that this court would not reverse a decision or judgment below, for merely granting or refusing a continuance, unless it clearly and positively appears from the face of the record, that the court who decided the cause had been guilty of a palpable and manifest violation of public duty, seriously prejudicing the rights of the parties complaining.
The only remaining point to be determined is, did the Circuit Court err in refusing a new trial, on the ground of newly discovered evidence on the trial. The doctrine upon this subject is well settled, both upon reason and authority, and we will now fully state it. In order to entitle a party to a new trial, on the ground of newly discovered evidence since the former trial, the affidavit in the case must prove, 1st, the names of the witnesses whose testimony has been discovered, and the facts expected to be established by them; 2d, that the facts and circumstances as proved, must show that the applicant has used due diligence in preparing his case for trial; 3d, that the facts and circumstances newly discovered,'have come to his knowledge since the determination of the trial, and they must be such as if adduced on the trial were competent to prove the issue, and would probably have changed the verdict; and 4th, that the evidence discovered is not cumulative of that previously relied on, and that it will tend to prove material facts, which were not put directly in issue on the former trial.
These principles are well settled by a series of broken decisions, which is perfectly conclusive on the point. Ewing v. Price, 3 J. J. Marshall, 520; Daniel v. Daniel,2 J. J. Marshall 52; Wells v. Phelps, 4 Bibb 563; Smith v. Brush et al., 8 J. R. 84; Pike v. Evans, 15 J. R. 210; The People v. Superior Court of N. Y., 10 Wend. 295; Gardner v. Mitchell, 6 Pick. 114.
The application of the rule as here laid down, will test the question now in controversy. The bill of exceptions in this case fails to set out any portion of the evidence that was adduced upon the trial. ' The legal presumption, then, is in favor of the verdict and judgment below, and they cannot be disturbed unless it satisfactorily appear, affirmatively, that they were evidently and materially erroneous. The affidavits filed in support of that motion for a new-trial, do not prove that the defendant below used any exertions, or even attempted to prove the evidence of the newly discovered testimony on the trial.
The appellant’s affidavit does not show that he used due diligence to procure their attendance or testimony; consequently, he is not entitled to the benefit of the evidence which he might have discovered before the trial, but which has come to his knowledge since, merely because he made an effort or exertion to procure it before that time.
The affidavit is fatally defective in another point of view.It wholly fails to establish the position that the newly discovered evidence is not cumulative, or that it does not put directly in issue the same facts that were determined by the jury. The presumption is, that it is cumulative of the evidence adduced on the trial, and there is nothing on the record to contradict or overdraw this presumption. It must then stand as full proof on that point, and it clearly justifies the conclusion of the newly discovered evidence, upon rthe ground of being communicative testimony. Even if the newly discovered evidence had been introduced on the trial, we are authorized to presume it would materially have changed or altered the verdict.
' It is true, that in the statement of the witnesses above newly discovered, evidence is filed in support of the appellant’s motion for a new trial, the process of the work and labor sued for, is set down at a much lower rate than is charged in the plaintiff’s bill. But that statement fails to show that the witnesses were carpenters by trade, or that they are judges of the prices of such work and labor. Besides, if their testimony had been adduced upon the trial, it might and probably would have been disproved by the evidence in the case. This is the legal inference following the verdict and judgment, and the appellant cannot except from its consequences and effects, unless he shows affirmatively by spreading the whole testimony upon the record, that such would not have been the fact. In failing to rebut and disprove this presumption, he stands bound by it, and therefore this newly discovered evidence cannot avail any thing on his motion for a new trial. Upon each and all of these grounds, it is perfectly manifest, that the court below-decided correctly, in refusing to grant the appellant a new trial. The decision and judgment of the Circuit Court must therefore be affirmed, with costs. | [
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Lacy, Judge,
delivered the opinion of the court:
The first question presented is, whether the Circuit Court erred in refusing to instruct the jury, on the plaintiff’s motion, that the defendant’s plea of non cepit admitted the property and possession of the slaves in controversy, to be in the plaintiff at the time of the taking alleged in the declaration. The doctrine in regard to the law of replevin on the plea of non cepit is accurately laid down in the case of Rogers vs. Arnold, 12 Wendell, 33. It is there stated “ that the plea of non cepit puts'in issue nothing but the caption, and the place, where that is material, and that under it the defendant cannot show property out of the plaintiff.” And in the case of D'Wolf vs. Harris, 4 Mason, 528; Justice Story has said, “ where non cepit was pleaded, and property in a third person, and not in the plaintiff, that the pleadings narrow the case to the taking of the goods, and whose property they were at the time of the attachment.” 7 John. Rep. 142, Pangburn vs. Patridge.
The plea of non cepit does, in effect, disclaim property and possession to be in the plaintiff. If this be correct, then the court below certainly erred in refusing to give the instructions asked for by the plaintiff. He may have wholly failed in his action on account of the misdirection given to the jury; at any rate, it is but reason able to sup pose that his interest was severely prejudiced by it; for it was all important for him to show'property and possession-in himself; and as that fact was expressly admitted by the pleading, he could not be required to prove it.
The second point to be considered and decided, is, did the court below err in instructing the jury that in order to entitle the plaintiff to maintain replevin, it was necessary for him to prove an actual and lawful possession of the property claimed. It is true, that the plaintiff must show a genera! or special property in the goods to support his action, or recover in replevin, coupled with an actual or constructive possession of them at the time of suing out the writ. The right of property, by intendment or operation of law, carries with it the right of possession, either actual or constructive. Upon this principle, it has been held that the assignment of goods at sea, and of their proceeds, if bonajide, is sufficient to pass the legal title to the goods, and also to the proceeds, so that replevin will lie for the latter. The authorities are so full and conclusive on this point, that it is deemed unnecessary to say more on this branch of the subject, than barely to refer to some of the most prominent cases that have been decided. The principle is well settled that a plaintiff who has a general or special property in the goods, coupled with an actual or constructive possession, can maintain replevin. It is the unlawful taking or deprivation of the goods that constitutes the gist of the action; and this taking may be from him who is legally entitled to the property or proceeds of the goods, as well as from him who has the actual possession of them. This being the case, it necessarily follows, that the court below erred in instructing the jury that the plaintiff must have had the actual possession of the property in controversy, in order to enable him to maintain replevin.
The only remaining question to be decided is, did the Circuit Court err in permitting the deed of trust from William Wynn to Grandison D. Royston to be read as evidence on the trial, upon proof of the hand writing of the grantor, without properly accounting for the absence of the subscribing witnesses thereto, or without proving the hand writing of the attesting witnesses.
It is a universal rule of practice, without an exception, that the best evidence which the nature and state of the case will admit of, must be produced. This rule is founded on the most obvious principles of necessity, and of public policy; and it cannot bé departed from with-without manifest injustice, and producing the greatest confusion and uncertainty in all judicial proceedings. It lies at the very foundation of all correct reasoning and induction, and it constitutes the basis and ground work of the law of evidence. Primary evidence stands highest in the scale or grade of proof, because it approaches nearest to the truth of the fact sought to be proved; and for this reason is more conclusive in its results, and less liable to mistake or deception; and wherever the best evidence exists, or can be obtained, it must be resorted to as furnishing the only legitimate and the most unerring test of truth.
To admit secondary evidence, while a higher grade of testimony exists, or can be procured, is to violate a universal principle of the law of evidence, and to destroy at the same time the only fair and legitimate mode of reasoning upon all subjects. The party who seeks to prove a given fact, by inferior evidence, must first lay a just ground for its introduction, by showing that the superior evidence has been lost or destroyed, or that it is not within his power to obtain it, or that it is not within the reach of the process of the court.
For to allow a party the privilege of resorting to secondary evidence while primary testimony exists, or can be had, would be to fen able him to commit a fraud, and to obscure and render doubtful the issue to be proved. By keeping in view these plain and obvious principles we shall find little or no difficulty in solving the questions now before us. The plaintiff objected to the deed of trust, in the first place, as inadmissible testimony, for the want of proper authentication. The court sustained the objection, and the defendant thereupon introduced two witnesses who stated, “ they had no knowledge of the subscribing witnesses to the deed, and had never known of their residing in this State.” The record shows that the deed was duly acknowledged before a Notary Public, in the city of New-Orleans, and that it was subscribed in the presence of two witnesses, whose names and attestations were affixed to it. Upon this state of the case,- the court below permitted the hand writing of William Wynn, the grantor, to be proved, and upon proof thereof, the deed was declared duly executed and allowed to be read as evidence to the jury.
The record shows that the defendant claimed title to the property in question under and by virtue of the deed of trust executed by Wynn to himself. It is acknowledged before a Notary Public with his authentication attached to it, to which is annexed a certificate of the Governor of Louisiana, showing that the Notary Public was duly commissioned and in office at the time he affixed his official signature to the instrument. See Revised Statutes of the State of Arkansas, 53.
This cannot be considered as a judicial record of another State, and it is certainly not entitled to be read as evidence in this State, simply on the authentication of a Notary Public of New Orleans. It must then be proved as other deeds of equal grade and dignity are required to be. The law places the subscribing witnesses around the transaction for the sole purpose of proving it, and their testimony cannot be dispensed with, unless it be first shown that they are dead, or interested, or have become infamous since the subscribing of it, or unless a most diligent search be made for them, and they cannot .be found or heard of; or they are out of the reach of the process of the court. When these facts are proved, then the law dispenses with the best evidence that the case will admit of, and allows secondary evidence to be introduced, by proving the hand writing of the attesting witnesses. In such cases, proof of the hand writing <?f the witnesses proves the execution of the instrument. And if the hand writing of the witnesses cannot be proved, after proper diligence has been used for that purpose, the party ipay then resort to a third grade of evidence, and prove the hand writing of the obligor or grantor, as if there had been no subscribing witnesses. Johnson vs. Mason, 1 Esp. 89; Abbot vs. Plumbe, Doug. 216; Barnes vs. Trompousky, 7 J. R. 261; Call vs. Dunning, 4 East. 253; Fox vs. Kiel, 3 J. R. 477; McPherson vs. Rathbone, 11 Wendell, 98. 'The authorities show that the hand writing of the subscribing witnesses, even when they have become incompetent since their attestation, must be proved. And in Patterson vs. Jackson, 11 Wendell, 123, the cases are enumerated in which the execution of a deed may be proved by establishing the hand writing of .a party, or by admitting that he executed it. They consist of these: where a witness is interested, or infamous, where he denies having any knowledge of its execution, where the name is fictitious, where there is no witness, where he is dead or out of the jurisdiction of the court, and where, after diligent inquiry, no proof of his hand writing can be made, and when, upon inquiry, nothing can be heard of him, so that he can neither be produced, nor his hand writing proved.”
This enumeration includes all the cases where the hand writing of the grantor is allowed to be proved. It certainly cannot be contended that the defendant has brought himself within the rules here laid down. The witnesses to the deed are not shown to be dead, infamous, or interested, to deny having a knowledge of its execution, orto be fictitious personages, or out of the reach of the process of the court, nor is it shown, that after diligent inquiry, the defendant is unable to make any proof of their hand writing, or that nothing has been heard of them; so that they can neither be produced, nor their hand writing proved.
No attempt was ever made to prove the hand writing of the attesting witnesses, nor was any search or inquiry instituted for that purpose. No effort whatever was made to procure their attendance, or to obtain their testimony. The witnesses who were examined on the trial, simply stated “that they had no knowledge of the subscribing witnesses to the deed; and that they had never known of their residing in this State.” No question, so far as the record shows, was ever asked them in regard to their knowledge of their hand writing. In’the absence, therefore of all those requisites, which are held to be indispensable for introducing a third grade or species of evidence, to introduce the deed; the court below unquestionably erred in permitting the deed to be established by proving the hand writing of the grantor.
It has been already shown that the court erred in refusing the instructions asked for by the plaintiff, and in giving those asked for by the defendant, and also, in overruling the plaintiff’s objection to the proof of the execution of the deed of trust; and this being the case, the court should have nwaided the plaintiff a new trial, which was refused. This being the case, the judgment of the court below must be reverse!!. | [
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Wood, J.
The appellees, hereinafter for convenience called Moore, brought this action against the appellants, hereafter for convenience called Hall, to recover rents for the year 1918 on 320 acres of land at $15 per acre.
Hall denied liability and set up a contract entered into between him and Moore on the 16th of November, 1916, the material parts of which are substantially as follows: Hall agreed with Moore to clear all the north half of section 8 in Mississippi County, Arkansas, for $9 per acre and to clear “everything east of the railroad between now and March 1, 1917, ’ ’ and to finish all clearing west of the railroad by January 1,1918. Hall agreed to move his force upon the land at once and to have them all on the land not later than December 1, 1916, and to plow the land as» it was cleared. Moore agreed to build a house on every twenty acres as fast as possible, to build one barn and one five or six room house like the “Boyle House.” Moore agreed to give the first year’s rent free of charge for all lands cleared and plowed by March 1, 1917, regardless of whether the contract was completed in full or not. If Hall cleared all the lands east of the Wilson-Northern Railroad on section 8, in time to put in a crop that year Moore agreed to rent him the north half of section 8 for five years longer at $5 per acre. Hall was to pay $5 per acre for all lands that had been plowed on the north half of section 8. Moore agreed to ditch the land (in his own way) the same as other lands in cultivation. In case of failure to ditch the lands on time the contract was to be extended until same was done.
The testimony of Moore tended to prove that from the date of the contract of March 1, 1917, Hall had not complied with the contract by clearing all the land east of the Wilson-Northern Railroad; that there were about thirty or forty acres of that land not cleared, and that of the lands in the north half of section 8 on both sides of the railroad there were seventy acres that were not cleared and put in cultivation during the year 1917.
The testimony of Hall tended to prove that all of the lands east of the railroad were not cleared by March 1, 1917, for the reason that Moore failed to provide sufficient drainage to enable Hall to clear the lands within the time specified in the contract. Hall contends that under the contract Moore was to ditch the land in advance of the clearing. He also contends that Moore had failed to comply with the provision of the contract which required him to build a house on every twenty acres as fast as possible.
Forfeitures are not favored. It is clear when the contract is considered as a whole that it was not contemplated that Hall would forfeit his rights under the contract if he failed to clear everything east of the railroad by March 1,1917, and all of the land west of the railroad by January 1, 1918. Time was not made the essence of the contract by the naming of these dates. On the other hand, it is equally clear that it was not in contemplation of the parties that if Moore failed to build the houses or ditch the land in time to enable Hall to clear the lands east of the railroad by March 1, 1917, in such event Hall was to have the use of the land free of rent for the year 1918.
When the provisions of the contract are all considered, we are convinced that it was the intention of Moore to negotiate with Hall for the clearing of 320 acres of land during the year 1917, and that he was offering to Hall as the inducement and consideration, $9 per acre for the clearing and free rent during the year 1917 for all land that Hall might clear and plow by March 1,1917. As a further consideration and inducement to having all the lands cleared east of the railroad by the first of March, Moore agreed that Hall should have the land both east and west of the railroad embracing the north half of section 8 for a period of five years from January 1, 1918, the latter date being the time fixed when Hall should finish clearing all of the land.
It appears from the language of the.contract that it was the purpose of Moore, for some reason not disclosed in the contract, to have all the land east of the railroad cleared first and to have that done by March 1, 1917, and the entire tract of land cleared by January 1, 1918. The written provision of the contract shows that it was to come to an end and so far as the clearing was concerned on January 1,1918. Under the terms of the contract, as we construe it, Moore was also bound to ditch the lands that had been cleared the same as other lands that were in cultivation and have the ditching completed by January 1, 1918. But if for any reason the ditching had not been completed by that time then the contract was to be extended until the ditching could be completed.
The testimony shows that by January 1, 1918, Hall had failed, to, clear seventy acres of the land, thirty or forty acres of which were east of the railroad. Hall claimed, and the testimony adduced in his behalf tended to prove, that he was unable to clear the lands embraced in his contract because it was not sufficiently drained. He also adduced evidence tending to prove that Moore had not complied with the contract in regard to the building of the houses.
The testimony of Moore, however, and evidence adduced in his behalf, tended to prove'that Hall was not delayed or obstructed in his clearing operations by any failure on the part of Moore to build the houses mentioned in the contract. Moore also contended that under the contract he was not to drain the land in advance of the clearing but was only to have the same drained after the clearing was done preparatory to the cultivation.
The court below found that there had been no breach of the contract on the part of Hall, such as to cause a forfeiture of his right to clear the seventy acres after January 1, 1918. The court doubtless reached this conclusion for the reason that Moore had failed to properly drain the land that had been cleared in time for the proper clearing and cultivation thereof.
The trial court found that Moore was entitled to recover of Hall rent at the rate of $5 per acre on all of the lands that had been cleared by January 1, 1918, on the north half of section 8 for the year 1918, and that Hall was entitled to an extension of the contract for a period of five years including the year 1918. The court further found that Moore was entitled to collect rent from Hall at the rate of $5 per acre on such parts of the seventy acres as were then cleared or that might thereafter be cleared, but that Hall was not required to clear the seventy acres until Moore had drained the same.
The court upon these findings of fact entered a decree in favor of Moore on his complaint in the sum of $1,287.50, representing the rent for the year 1918, at the rate of $5 per acre on the land that had been cleared by Hall on the north half of section 8.
It would unduly extend this opinion to set out and discuss in detail the testimony upon which Hall relies to sustain his contention that Moore was not entitled to recover rent for the year 1918 because he had violated the terms of the contract by failing to drain the lands as therein required.
It is also unnecessary to discuss in detail the testimony upon which Moore relies to sustain his contention that Hall had failed to clear the lands as required by the terms of the contract.
We have reached the conclusion that the preponderance of the evidence shows that there was not a sufficient breach of the contract by either party to justify the conclusion that the contract was at an end on January 1, 1918, and that its mutual obligations were no longer binding upon the parties. The trial court ruled correctly in deciding otherwise. A careful consideration of the evidence convinces us that the findings of fact by the trial court are not clearly against the preponderance of the evidence, and its construction of the contract is really more favorable to Hall than perhaps the letter of the in strument warrants. However, Moore has not appealed, and therefore has expressed himself as satisfied with the decree awarding to Hall the right to hold the cleared lands for a period of five years from January 1, 1918, at a rental of $5 per acre’ and to clear and hold the seventy acres at the same rate after Moore had drained the same.
The court was also correct in the conclusion that Hall was not entitled to reformation of the contract so as to give him a lease on all of the lands of section 8 instead of the north half as set forth in the contract.
Hall contends that the contract contemplated that, if he cleared the north half of section 8, as specified in the contract, he was to then have a lease on all of section 8.
The instrument itself plainly expresses that “parties of the first part (Moore) agreed to rent them (Hall Brothers) the north half of section 8, etc.” To effectuate the purpose which Hall contends was intended by the instrument, the language “north half of section 8” should have been “section 8” or “all of section 18.”
Hall alleges in his cross-complaint that “through fraud and mistake in the preparation of the contract it recited the north half of section 8 instead of all of said section. After a careful consideration of the evidence we have reached the conclusion that this allegation is not sustained by a preponderance of the evidence. In the absence of fraud, to entitle appellant to a reformation of the instrument, so as to make it read as he contends, the proof must be clear, unequivocal and decisive. McGuigan v. Gaines, 71 Ark. 614; Ark. Mut. Fire Ins. Co. v. Witham, 82 Ark. 226; McCracken v. McBee, 96 Ark. 251; Cheatham v. J. W. Beck Co., 96 Ark. 230.
The testimony adduced by Hall on this issue, even though it may preponderate in his favor, is not sufficient to meet the above requirements. If the parties had intended to include all of section 8 instead of the north half, then a mere casual reading of the contract would have discovered that the intention was plainly not expressed therein, but on the contrary the purpose to embrace the “north half” was plainly stated. Moore and another witness testified that Hall read the contract carefully before signing the same.
The most that can be conceded to Hall is that there is a decided conflict in the evidence on this issue with a preponderance in his favor, but that does not fill the measure of the requirements of the law to entitle him to reformation of the contract.
The decree is therefore correct, and it is affirmed. | [
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Wood, J.
Appellee, Ethel Anderson Rice, lived at Bentonville, Arkansas. She was teaching school at Anadarko, Oklahoma. She purchased her ticket from the St. Louis & San Francisco Railway Company, hereafter for convenience called appellant, to Oklahoma City, and left her home about 4 p. m. October 29,1918, going via Rogers to Monette, Missouri, where she arrived about 8 p. m. At Monette she boarded appellant’s Oklahoma City train about 11:30' p. m. She went into the chair car and through the car looking for a seat. The seats were all taken except one at the front end of the car. She returned and occupied it because there were no other vacant seats. In the chair car beside her was a large fat man who had his sleeves rolled up and vest on and was in a very unkempt condition. His face was turned toward the window, and he was sprawled out over his seat and appeared to be asleep. As she entered the chair car she asked the man standing at the end of the car for a seat in the Pullman. He stated they could not get one for her, and no one attempted to find her a seat in the chair car. A few minutes after taking the seat, the porter came through the car and made an announcement, that, on account of a wreck, passengers for Neosho should get off the train as they had to detour by way of Joplin. He asked the passengers to show their tickets, and he asked the man sitting beside her for his ticket several times, then reached over and shook him, tried to rouse him up, but got no reply from him. The porter then asked her if she had that man’s ticket.
About twenty minutes after the porter went through the train and the train had started, the conductor came in the front end of the car and began taking up tickets. He took appellee’s ticket and asked the man beside her for his ticket. He muttered and mumbled, but did not answer the conductor. The conductor then shook him repeatedly and asked him for the ticket. The man answered that he had no ticket. The conductor stood there and quarreled with bim about the ticket. He repeatedly asked him for his ticket. Finally, the man said, “That young lady has my ticket,” referring to the appellee. The conductor said, “No, she has not your ticket; hunt the ticket up. ” At that time the appellee was scared and was leaning out toward the aisle trying to get out. The baggage had been piled up at the front end of the car, and the conductor was standing in the narrow place, so appellee could not get out. He stood there and wrangled a long time before the man grabbed appellee. While they were quarreling, he reached out and took hold of appellee. When he grabbed appellee, he was standing up as much as he could get from the chair he was in, but was not entirely out of his seat. He was up somewhat and over toward appellee. His hand came over the back of the seat above appellee’s waist. She thought possibly from his talk that the man thought appellee had taken his ticket. The conductor then pushed him over into the window, back in the seat and let appellee out.
Appellee was badly frightened; came near fainting. Someone opened the door, and she went out into the vestibule and sat on the porter’s step, where she stayed five or ten minutes when some man back in the car came and offered her Ms seat and took her inside. The conductor did not then or at any time offer to procure her a seat. She took the seat offered her by the gentleman about half way back on the opposite side. She saw the drunk man take a bottle out of his pocket and drink out of it. Finally he dropped the bottle on the floor of the car and broke it. He had another bottle that he went and got and drank out of that bottle. ' No one made any effort to put him off or take Mm into another car. The man stayed on the car several hours until he reached the place where he got off.
The appellee instituted this action against the appellant for damages for personal injuries. The above are substantially the facts upon which she predicated her cause of action.
The appellant denied all the material allegations of the complaint and set up the affirmative defense of contributory negligence on the part of the appellee.
" The court, over the objections of the appellant, granted certain prayers of the appellee for instructions and refused certain prayers of appellant.
The jury returned a verdict in favor of the appellee for the sum of $1,000. Prom a judgment in appellee’s favor is this appeal.
Later we will set out and comment upon such other facts as may be necessary.
The appellant first contends that the evidence is not sufficient to sustain the verdict.
The appellee, among other allegations of negligence, alleged in her complaint that, “the trainmen in charge of said train had carelessly, negligently, wantonly and wilfully permitted an insanely drunken man to enter said train and to remain therein and occupy the opposite seat from the plaintiff and among the other passengers. ’ ’ She further alleged that, “the said conductor and parties as aforesaid carelessly and negligently let the drunken man remain in or near the seat occupied by the plaintiff, and permitted him to harass, annoy, and frighten the plaintiff.” The complaint alleged that “the drunken man proceeded to arise from his seat and take hold of the plaintiff, and proceeded to and did shake and crush her arm, which greatly pained the plaintiff and terrified her, all of which was well known and observed by said conductor and porter in charge of said train, but that they wantonly, cruelly and negligently permitted said drunken man to assault the plaintiff, when by ordinary care and diligence the same could have been prevented.” The appellee further alleged that “said trainmen were guilty of negligence in permitting a man whose conduct was so manifest to enter and remain in said train or passenger-par, and whep his condition and conduct were -yell known. to the conductor and other employees of the defendant in charge of said train.”
The acts of which appellee complains occurred in Missouri. Therefore the laws of that State applicable in such cases must govern in determining whether or not there is any liability against appellant. St. L. & S. F. Ry. Co. v. Coy, 113 Ark. 265, and cases there cited.
In Lige v. Chicago, B. & Q. R. R. Co., 204 S. W. 508 (Mo.), the facts were substantially as follows:
A passenger who was in an intoxicated condition when he boarded the train, and who was observed by the conductor to be in such condition after he entered the train on account of his manner of acting and talking, suddenly and without cause picked up an iron wrench near a stove in the smoking car and struck a fellow passenger on the head. The assault was committed without any warning whatever or without any previous verbal altercation. The man who committed the assault was “joshing and talking,” but aside from this he was guilty of no improper conduct whatever, while in the train, until he committed the assault.
The Supreme Court held that the injured party had no cause of action against the railway company. In the 'course of the opinion, the court announced that “the carrier is liable to a passenger for injuries inflicted by any cause if it could have been prevented by the exercise of highest degree of care usually exercised by very cautious persons engaged in similar business.”
The court quoted, with approval, from Judge Thompson’s work on Negligence, volume 3, p. 544, section 3089, as follows: “If the conduct of a railway passenger is such as to excite reasonable apprehensions that his presence will result in injury or annoyance to their passengers, it is the right and duty' of the conductor to expel him without waiting for any overt act of violence.”
The court quoted the following from 10 Corpus Juris, p. 905: “It is the duty of the carrier’s employees to protect passengers from the acts or conduct of an intoxicated fellow passenger, and, where there is reason to ap prebend injury or annoyance from him to other passengers, they should eject him from the train or other vehicle, or require him to remain seated and behave himself; and where, by reason of the employees ’ negligent failure to afford such protection, a passenger is injured by an intoxicated fellow passenger, the carrier is liable. But it is not liable where there has been no reasonable opportunity to discover such passenger’s condition and intent; and failure to eject a passenger merely because he is drunk, if otherwise well behaved, will not alone subject a carrier to liability for an injury caused by his acts or conduct. ’ ’
The law concerning the duty of common carriers of passengers (by .railroad) to their passengers is essentially the same in this State as in Missouri. In Mayfield v. St. L., I. M. & S. Ry. Co., 97 Ark. 28, this court said: “A railroad as a common carrier of passengers is bound to use extraordinary care, not only to carry its passengers safely, but also to protect them during the carriage from assault or injury from its agents in charge of the train and from others. By its contract the railroad company assumed^ the obligation to protect the passenger against any negligence or wilful misconduct of others on the train. The conductor has control, not only of the movements of the train, but over persons on it, and has authority to compel the observance of the rules of the company by all persons on the train. He has therefore the power under ordinary circumstances to protect them from violence or wrongful injury from others, and the law makes the company liable for an injury to a passenger resulting from a negligent failure to exercise such power.” And in St. L. S. W. Ry. Co. v. Bradley, 99 Ark. 316, we held that where an injury to a passenger was caused by a- drunken fellow passenger and the facts tended to show that the conductor knew that the fellow passenger was .drunk and giving annoyance, the railway company was liable because of the failure of its conductor to take proper steps to protect the injured passenger. M., D. & G. Rd. Co. v. Trussell, 122 Ark. 516, is to the same effect. See, also, St. L.,I. M. & S. Ry. Co. v. Wilson, 70 Ark. 136. In St. L. & S. F. Rd. Co. v. Wyatt, 84 Ark. 194, we held that, ‘ ‘ a railroad company is not responsible for failure to protect from assault one who was waiting at its station intending to become a passenger on its train, if the assault was committed so suddenly that the railroad company could not reasonably have anticipated and prevented it.” The same rule is applicable to a passenger while on the train. Thus the law applicable to cases of this character is well settled by the decisions of the Supreme Court of Missouri, ás well as by the decisions of our own court to the same effect.
It could serve no useful purpose to set out and discuss in detail the separate prayers for instructions which were granted or refused or modified and given by the trial court. There was no misapprehension of the law by the trial judge. His charge as a whole correctly declared the law applicable to the facts of this record, and the instructions to the jury were in conformity with the law upon- the issues here involved, as announced by the court of last resort of Missouri.
The most difficult question for decision is whether the testimony is legally sufficient to sustain the verdict. According to a well settled rule we must give the testimony its strongest probative force in favor of appellee. Observing that rule, we have reached the conclusion that the issue of negligence was one of fact for the jury to determine under the evidence. The verdict in favor of appellee on the issue, having substantial evidence to sustain it, will not be set aside by this court.
The case on the facts is distinguished from the case’ of Lige v. Chicago, R. & Q. R. R. Co., supra, in some essential particulars. Although the party who committed the assault on Lige was intoxicated and the conductor was apprised of that fact, yet, until the very moment of the assault, the drunk man had not disturbed anyone and had not given any offense to or manifested any ill will towards Lige or anyone else. He suddenly and without warning assaulted Lige. Here, according to the testi mony of.the appellee, the conductor “repeatedly asked” the man beside her “for his ticket,” and the man replied: ‘ ‘ I have no ticket, that young lady has my ticket. ’ ’ The conductor, she says, ‘ ‘ stood there and quarreled with him about the ticket.” “He stood and wrangled there a long time before the man grabbed me.” 'Her testimony further tends to show that, during the time of the wrangle and quarrel between the conductor and the drunk man, she was virtually imprisoned in her seat between them. The conductor was a large man and filled the aisle. The space in the front end of the car was filled with baggage so that there was no way for her to get out until the conductor stepped aside and let her out. This he did not do until she had requested him, and not until she had been assaulted by the drunk man.
The important and controlling point of distinction between this and the Lige case is that in the Lige case the assault was sudden and without warning, whereas here the jury was justified in finding otherwise. True, the conductor testified in this case that he talked with the man only about a minute, perhaps not more than four or five seconds, and that the assault upon the young lady was immediate. But the jury accepted the testimony of the appellee upon this point. The jury were warranted in finding from her testimony that the conductor, although aware of the man’s drunken or “crazy” condition, and advised' by his replies that he thought she had his ticket, nevertheless stood there and “quarreled” and “wrangled with him a long time” until he finally arose partly out of his seat and “grabbed” her.
Now, it seems to us, under these circumstances, it was peculiarly a question for the jury to say whether or not a man of ordinary prudence, exercising the highest degree of care consistent with the business in which he was engaged, would have permitted the appellee to remain in the awkward and embarrassing situation in which she found herself until it was too late to prevent the assault. The porter had been informed by the appellee that she did not have the man’s ticket. The testimony of the conductor tended to prove that he knew that appellee was not the traveling companion of the drunken man. She was not of his class. He was a “tough looking customer, ’ ’ and his conduct proved him to be such. He had accused appellee of getting his ticket, showing that in his drunken or “crazy” condition he believed that appellee had perpetrated a wrong upon him. Would a man of ordinary prudence, a conductor of a passenger train, in the exercise of ordinary care for the comfort and safety of the passengers, after blocking with his own person, the only avenue of escape, have stood in the presence of this young woman and ‘ ‘ quarreled and wrangled a long time ’ ’ with a drunken or crazy man who had accused her of taking his ticket; or would a thoughtful conductor, under such circumstances, have first endeavored to rescue the young woman from her disagreeable, not to say, dangerous, situation by clearing the way, and inviting her into another car, or to another location in the same car out of range of personal insult or assault, while he, the conductor, “had it out” with the drunken or crazy passenger ?
These were questions of fact for the jury and the trial court to answer.
The facts developed here made it an issue for the jury to determine whether the conductor knew, or by the exercise of ordinary care could have known, from the conduct of the drunken passenger that an insult to, or assault upon, appellee was reasonably to be anticipated, and which in the exercise of ordinary care he could have prevented. Woas v. St. Louis Trust Co., 198 Mo. 664; Spohn v. Missouri Pacific Ry. Co., 87 Mo. 74.
We have examined all the other questions urged by the learned counsel for appellant in their excellent brief, and find no reversible error in the rulings of the court. There was no contributory negligence, and the court did not err in refusing to submit that issue to the jury. There was no prejudicial error in the ruling of the court upon the admission of testimony.
The instruction upon the measure of damages told the jury that if they found for the plaintiff they should assess her damages at such sums as would fairly and reasonably compensate her for any injury she may have sustained by reason of the insults and assaults, if any, she received from the drunken fellow passenger.
The appellant objected to the instruction because the elements of damage were not specified. 'But the appellant did not present a prayer for instruction defining the specific elements of damage for which recovery could be had by appellee if the jury should find in her favor. The instruction in the form given was not one to be approved as a precedent, still it did not contain any positive misstatement of the law. It was couched in too general terms but was not on that account fatally defective. The appellant should have requested the court to grant a prayer explaining the specific element of damage which it conceived had been overlooked, before it can complain here. Fordyce v. Jackson, 56 Ark. 594-602.
We have reached the conclusion that the issue of negligence and of appellant’s liability was for the jury, and that this issue was fully and fairly presented.. The jury having determined that issue in favor of the appellee, we cannot say as matter of law that the amount of the verdict was excessive. Here was an actual assault upon the person of appellee, and, as a consequence, appellee says she “was scared nearly to death,” causing “physical changes in her system,” which she described, and from which she had endured a “great deal of trouble and pain.” She had been in good health before the injury, but since, and to the time of the trial, she was suffering from the effects of the assault. She says: “When this (her menses) comes on, I have to lie down, and am not able to stand on my feet for fifteen minutes. Have lost ten pounds, nervous condition seriously affected. This result is the effect of the assault by the drunken man.” The degree of humiliation which a “refined and sensitive” young woman would experience when the violent hands of á drunken ruffian are laid upon her in the pres ence of other passengers depends, of course, largely upon the particular manner of the assault and insult. The jury had the circumstances, and manner of the assault before them as related and demonstrated by the appellee and appellant’s conductor.
The appellee testified that the conductor said to her that “he was sorry it happened. He said he should have been killed. ’ ’ If indeed the conduct of the drunken man was so flagrant as thus indicated, the jury were fully warranted in finding that the assault upon appellee was well calculated to and did produce directly and proximately the fright, nervous shock, and distressful condition of health which she described.
The cases of Kansas City, P. & G. Ry. Co. v. Bragg, 69 Ark. 402, C., R. I. & P. Ry Co. v. Allison, 120 Ark. 54, and Butler County Rd. Co. v. Exum, 124 Ark. 229, are differentiated from the presént case by the facts of those cases. In neither of them was there a personal injury to or assault upon the plaintiff. Here there was a personal assault upon the plaintiff, and the fright, nervous collapse and other physical injuries of which she complained were the direct and proximate result of such assault; at least the jury was warranted in so finding.
There is no reversible error. Let the judgment be affirmed. | [
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Wood, J.
The appellant instituted this action against the appellee and alleged in his complaint that appellees were indebted to appellant in the sum of $122.80, being the amount of an account which one Charlie Russell owed appellant for cash and supplies furnished bim during the year 1917, which account the appellee in writing promised to pay. The appellee denied the allegations of the complaint.
One D. H. Smith testified that he was the president of the appellant, a corporation that was organized and doing business in this State; that appellant furnished one Russell supplies to make a crop for the year 1917, and to secure the amount furnished him Russell executed to the appellant a mortgage on a cow, yearling, and his crop. As a part of the arrangement, Russell executed to the appellant a promissory note for $5. This note and the amount of the account was secured -by the mortgage. Appellant ' had furnished Russell during the year 1917, and on March 4, 1918, he owed appellant on his account a balance of $122j80. Appellant refused to furnish him for the year 1918', and Russell said he would get some one in Marianna to furnish him.
Appellant received from appellee a letter dated March 4, 1918, which reads as follows: ‘ Charles Russell has made arrangements to trade with us, and his balance with you is $122.80. You can make draft on us for the amount with note attached, and we will honor same, with note transferred to us. Yours truly, Griffis-Newbern Co.”
Appellant had had no previous conversation with appellee concerning the account. Upon receipt of the above letter appellant endorsed the note and enclosed same in a letter to the appellee, informing appellee that the mortgage securing the note and the account was on file and requesting appellee to mail a check to cover same.
On the 14th of March, 1918, the appellee wrote appellant to the effect that since writing the first letter Russell had made misrepresentations on account of which appellee could not pay to appellant the account of Charles Russell. With this letter appellee returned the note to appellant.
Appellant never received ány payment from the appellee and therefore instituted this actiop.
W. D. Newbern testified that Russell made certain representations to the appellee concerning his stock and the amount that he owed the appellant which induced the appellee to write to appellant the first letter above set out. In the meantime one Mr. Gresham informed the appellee that Bussell was working his land on shares and had no stock. Appellee had received a letter from the appellant which had enclosed only the note of $5. The appellee became suspicious and then wrote the appellant the second letter above referred to. The appellee had already taken a mortgage on the stuff of Charlie Bussell before it wrote the appellant the first letter. Charlie Bussell informed the appellee as to the amount of his account with the appellant or had the statement of the account with him. The arrangement that appellee had with Bussell was to pay his note and account to the appellant and get a mortgage on his stock and crop. Appellee thought'the note was secured by the particular stock.
The appellant asked the court to instruct the jury to return a verdict in its favor, which request the court refused. The court, thereupon, instructed the jury to return a verdict in favor of the appellee, which was done. From a judgment rendered in favor of the appellee is this appeal.
The undisputed evidence shows that the appellee promised in writing to pay the appellant the amount of Charles Bussell’s account, which appellee stated was $122.80. This was in fact the amount of Bussell’s account with the appellant and is the amount for which the appellant brought this action. Appellant, upon receiving the letter of the appellee promising to pay Bussell’s account, enclosed the note of Bussell for $5 endorsed to the appellee and requested the appellee to send a check.
The only reasonable conclusion that can be drawn from the correspondence between the appellant and the appellee and the testimony, is that the appellee agreed to pay appellant the amount of the account which Charles Bussell owed appellant, and that appellant upon such promise accepted same and surrendered to the appellee the note, informing the appellee that the mortgage covering' the, account was on file.
It was wholly unnecessary for the appellant to inform the appellee in its letter accepting the appellee’s offer to pay off tlie amount of Russell’s account; for appellee’s letter stated tlie correct amount of that account which it assumed to pay. The answer of appellant to that letter surrendéring the note, as we construe it, was an unequivocal acceptance of appellee’s offer which mad& the contract complete and binding.
The judgment is, therefore, reversed, and judgment will be entered here for the appellant against the appellee for the amount claimed. | [
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Hart, J.
Camp Jackson was convicted, under section 2008 of Kirby’s Digest, of carnally knowing a female person under the age of 16 years, and from the judgment of conviction has duly prosecuted an appeal to this court.
The prosecuting witness was Aurelia Young, a negro girl, who testified that she lived in Prairie County,- Arkansas, with her mother and father; that on the fourth Sunday night in August, 1918, which was the 23rd day of the month, the defendant went home with her from church and on the way home had sexual intercourse with her; that she was not 16 years old at that time; that the defendant had gone with her a good many times before that night, but that he never had intercourse with her before that night or afterwards; that she became pregnant, and then told her mother about the defendant having had intercourse with her.
The mother of the prosecuting witness testified that she was not 16 years of age at the time of the alleged intercourse; that she gave birth to a child on April 18, 1919, and that the child died on the 6th day of May, 1919.
The defendant admitted that he kept company with the prosecuting witness, but denied that he had ever had intercourse with her at any time. His testimony was corroborated to some extent. The evidence adduced for the State, if believed by the jury, was sufficient to convict the defendant.
It was the theory of the defendant that the child was conceived before the 23rd day of August, 1918, and as tending to establish that fact he introduced as a witness Dr. Adams, a white physician, who testified that he had been practicing medicine for eighteen years. The court permitted him to testify as an expert witness. His testimony as abstracted by counsel for the defendant is as follows: “The average time for the birth of a child after conception is 280 days, which is nine calendar months; when a child is born at the regular time, its muscles would be developed, its head would be well developed, its finger nails would be developed, and, if a normal child, its lungs would be well developed; a child born six weeks earlier than the normal time would be an undeveloped child, and not fully matured; its arms wouldn’t be well developed; its nails or fingers would not be developed, and it wouldn’t cry nor likely live long; five weeks under time would cause an undeveloped child; it is my opinion that a child bom six weeks before time might live three or four days; it might live longer and maybe not near so long. ’ ’
The defendant also attempted to introduce as an expert witness Elsie Thompson, a negro woman who was present on April 28, 1919, when Aurelia Young gave birth to the child. She said that it had been her business to deliver children for sixteen years, and that she had had training along that line under physicians. She stated, however, that she had never waited on women who had prematurely given birth to children and that she had never seen children of that kind. The court refused to allow her to testify as an expert, and the court’s action is assigned as error, calling for a reversal of the judgment.
In Green v. State, 64 Ark. 523, the court said that the competency of a witness to testify as an expert depends upon either his actual experience with respect to the subject of investigation, or his previous study and scientific research concerning the same, and sometimes on both combined. The court further stated that no rule can be laid down by which it can be accurately determined how much skill, knowledge, or experience a witness must possess to qualify and entitle him to testify as an expert. The court held that that question rests within the fair discretion of the trial court whose duty it is to decide whether the experience or study of the witness has been such as to make his opinion of any value, and that its decision of the question will not be reviewed by this court, unless it clearly appears to be wrong. According to this test, it cannot be said that the trial court erred in refusing to allow Elsie Thompson to testify as an expert with regard to the development of a prematurely born child. It is true she had had 16 years’ experience in assisting physicians in delivering children, but she was an ignorant negro woman and said that she had never been present when a child had been prematurely born. Hence her qualifications as an expert were doubtful, and the court did not abuse its discretion in not allowing her to so testify. She was present at the time the child was born and was properly allowed to state in detail the appearance of the child at that time. She went back and dressed the child when it was four days old and was permitted to state its appearance at that time.
The testimony of this witness and that of Dr. Adams tended to contradict the testimony of the prosecuting witness that the defendant carnally knew her on the 23rd of August, 1918. The jury might have believed them and still believed that the prosecuting witness told the truth about the crime being committed, but was mistaken about the date thereof.
It is also insisted that the court erred in instructing the jury as follows: “The material issue the State must prove beyond a reasonable doubt is, did he, Camp Jack son, in the Southern District of Prairie County, within three years prior to the return of the indictment; have sexual intercourse, or commit adultery with this girl, whether one time or five times, the offense would be consummated just one single time or act, and that is all the statute requires.”
We do not think the court committed prejudicial error in giving the instruction. The prosecuting witness did not claim that there had been .more than one act of intercourse between her and the defendant. This was all the testimony adduced by the State upon that issue. The court in using the expression, “whether one time or five times,” was simply defining the offense and telling the jury that a single act constituted the offense under the statute. If the defendant thought that the jury was likely to be misled by the instruction, a specific objection should have been made to it, and, not having done so, it is now too late to complain.
We find no prejudicial error in the record, and the judgment will be affirmed. | [
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Wood, J.
The question for decision in this case is, whether or not the fee of $1 allowed the county clerk under the revenue law for making a deed to the purchaser of lands forfeited and sold for delinquent taxes is required to be paid by the purchaser at such sale.
The determination of the question involves the construction of sections 3494, 3495 and 7111 of Kirby’s Digest, which are as follows:
“Section 3494. For services under the revenue laws, the county clerk shall receive for making a deed to the purchaser for lands sold at delinquent tax sales * * * $L”
‘ ‘ Section 3495. The fees provided for in section 3494 shall be paid by the county under the order and direction of the connty court, except for making out the original tax books, one-half of which shall be paid by the county. # * * J?
“Section 7111. The clerk of the county court of any county in which any lands or lots are situated which have been or may hereafter be sold for taxes, under the provisions of any law of this State, is authorized and required to execute the proper deed therefor to the person entitled to receive the same whether said lot or land shall, at the time of the execution of said deed, continue to be within said county or not, in the same manner as though the said land or lot still remained within the limits thereof, any law to the contrary notwithstanding, for which he shall be entitled to charge and receive a fee of one dollar, to be paid by the person to whom the deed is made.”
The history of this legislation is as follows:
An act entitled “An act to establish fees” was approved February 25, 1875. This was a general act having reference to all State and county officers who were allowed fees. Section 13 of that act provides that, “The county clerk shall receive fees for services under the revenue law * * * for making a' deed to the purchaser for lands sold at delinquent tax sale $1.” This section was digested by Judge Mansfield, under the chapter on Fees, as section 3240. It will be observed that the act as originally passed did not provide as to how the fee of $1 should be paid. The act was amended March 28, 1887. Acts of 1887, p. 139, and again on February 8, 1889. The original act as thus amended was digested as sections 3310 and 3311 by Sandels & Hill, and as sections 3494 and 3495 by Kirby, supra. The amendment of March 28, 1887, to the original act, as shown by section 3495, supra, provided among other things that the fee of the clerk, as prescribed in the original act, should be paid by the county.
The general revenue act of 1871, section 133, p. 107, and the general revenue act of 1873, p. 294, section 134, and the general revenue act of 1883, section 151, p. 199, all contain precisely similar provisions to that of section 7111 of Kirby’s Digest, supra, except as to the amount of the fee that the clerk was allowed to charge. The last of these provisions enacted February 17, 1883, was digested as section 6631 of Sandels & Hill’s Digest. On February 21, 1903, the Legislature amended section 6631 of Sandels & Hill’s Digest so as to make it read as section 7111 of Kirby’s Digest, supra. The last amendment, it will be observed, consisted only in "adding the words, “to be paid by the person to whom the deed is made. ’ ’
Mr. Sutherland in his work on Statutory Construction, volume 2, section 448, among other things, says: “It is to be inferred that a code of statutes relating to one subject was governed by one spirit and policy and was intended to be consistent and harmonious in its several parts and provisions. For the purpose of learning the intention, all statutes relating to the same subject are to be compared and, so far as still in force, brought into harmony, if possible, by interpretation, though they may not refer to each other, even after some of them have expired or been repealed.”
It is a well recognized rule in the construction of statutes that where there is no express repeal by the last enactment of prior statutes it is to be presumed that no repeal was intended. The Legislature must be presumed to have knowledge of prior statutes, especially those relating to the same subject. Hence it will be assumed in the construction of any statute that if the Legislature had intended by such statute to abrogate a prior law on the same subject it will do so in express terms.
Therefore, courts are slow to interpret the last enactment upon any given subject-matter as repealing by implication any prior law upon the same subject, and will not do so unless they find that the statutes are in irreconcilable conflict. Martels v. Wyss, 123 Ark. 184-7, and cases [here ci[ed.
But on the other hand where there is a plain repugnancy between two acts upon the same subject, the later act repeals the former, or if the two acts are not in express terms repugnant and the later act covers the whole object of the first and embraces new provisions, showing that it was intended as a substitute for the first, the last enactment will stand as the law upon the subject, and the first will be set aside.
In St. Louis & San Francisco Rd. Co. v. Bowman, 76 Ark. 32-4, we said: “But where the later of two statutes covers the whole subject-matter of the former and it is evident that the Legislature intended it as a substitute, the prior act will be held to have been repealed thereby, although there may be no express words to that effect, and there be in the old act provisions not in the new. See Bell v. State, 120 Ark. 530; Campbell v. Samples, 92 Ark. 79, and other cases cited in 4th Crawford’s Digest, p. 4672, section 49.
Keeping in mind these familiar canons of interpretation, we are convinced, upon a consideration and comparison of all the acts upon the subject, that it was the intention of the lawmakers that the clerk should receive the fee, which he was entitled to charge for making deeds to the purchasers at delinquent tax sales, from the purchaser at such sale and not from the county. While the fee allowed under section 3494 of Kirby’s Digest is under a general statute to establish fees for all the officers named therein, nevertheless, the particular fee in controversy was for services under the revenue laws. The act of February 21,1903, section 7111 of Kirby’s Digest, provides compensation for precisely the same service also under the revenue law. These statutes are in pari marteria. It was manifestly the intention of the Legislature to allow the clerk only one fee for making the deed specified. This fee, as we construe the plain terms of the last enactment, is to be paid by the person to whom the deed is made, no matter whether the lot or land purchased at the time of the execution of the deed is situated in the county where the land was forfeited and where the sale took place, or whether since that time it had been placed within the boundaries of some other county. The only purpose of the Legislature, by the last enactment on the subject, was to make the purchaser instead of the county pay the clerk’s fee for executing the deed.
The judgment of the circuit court so holding was correct, and it is therefore affirmed. | [
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Hast, J.
(after stating the facts). The plaintiff sought to recover in the action on the theory that Hanson abandoned the performance of the contract before the insolvency of Scott Bros., and that he did not intend to deliver the cotton under the contract. The facts are in conflict on this point, and this question was properly submitted to the jury under appropriate instructions.
Counsel for the plaintiff assign as error the refusal of the court to instruct the jury that it was the duty of Hanson to tender to plaintiff the cotton embraced in the contract, and that, if he failed to do so, he would be liable in damages to the plaintiff.
The court was right in refusing to give this instruction. It made the defendant guilty of a breach of the contract if he failed to tender the cotton to the plaintiff, regardless of the fact of whether or not plaintiff was able to carry out the contract.
According to the testimony of Hanson, he had been informed by the Arkansas representative of Scott Bros, that that firm had become insolvent, had ceased to do business, and would be unable to carry out its contract. This being true, it would have been a vain and idle thing for Hanson to have tendered the cotton to Scott Bros, under the contract. If Scott Bros, were unable to carry out the contract, no useful purpose could have beeii served by Hanson tendering to Scott Bros, or the plaintiff the cotton under the contract.
It is next insisted that the court erred in refusing to instruct the jury that if it should find from the evi dence that Hanson on the 23d day of September, 1916, did not have the September cotton and did not intend to deliver the same, it should find for the plaintiff. There was no error in refusing to give this instruction. Hanson had all of September in which to buy the cotton under the first contract. He had 142 bales on hand on the 23d of September, 1916, and said that he could have gotten the balance by the end of the month. The court had no right to limit his time of procuring the cotton to the 23d day of September, 1916, when his contract gave him the whole of that month. Hence the instruction would have been confusing and misleading to the jury and the court properly refused to give it. All of the instructions refused by the court contained this same vice, and there was no error in refusing them.
Counsel also complain that the court erred in giving an instruction ashed by the defendant. We need not consider this assignment of error; for no exceptions were saved at the trial to the giving of it, and under our familiar rules of practice any objection to it will be deemed to have been waived.
The judgment will be affirmed. | [
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Smith, J.
Appellant has assigned and discussed a number of errors, said to be prejudicial, occurring at the trial from which this appeal is prosecuted, and which resulted in a sentence of eighteen years in the penitentiary, upon a conviction for murder in the second degree.
The first of these assignments is that the trial occurred in an atmosphere of prejudice occasioned by the admission of testimony tending to show that appellant and members of his family who were indicted with him were disoyal, and that appellant was himself an evader of the draft. The testimony complained of was elicited, however, by witnesses who detailed the circumstances of the killing, it being shown that Porter Hazelwood, for whose murder appellant was convicted, was a member of a sheriff’s posse, which was attempting at the time to arrest appellant, pursuant to direction of the military authorities, as an evader of the draft. The theory of the prosecution was that appellant and the members of his family, together 'with Leo Martin, his brother-in-law, had conspired together for the purpose of enabling appellant and Martin to evade the draft- — that appellant and Martin had received orders to report for military duty and had failed and refused so to do, and were in hiding at the time, and that a part of the conspiracy was to resist with force, if necessary, any attempt to locate and arrest them. As tending to show this conspiracy, testimony was admitted to the effect that large quantities of provisions and ammunition were concealed near the home of appellant’s father, this being the congregating point of the members of the alleged conspiracy. This testimony was competent, therefore, not only to show the conspiracy, hut as tending to explain the circumstances under which the shooting commenced which resulted in Hazelwood’s death.
Another assignment is the refusal of the court to continue the cause on account of the absence of 'Bill Rice, who was a member of the posse which attempted to arrest appellant at the time Hazelwood was hilled and who was himself then wounded. In the motion for continuance it was alleged that Rice, if present, would testify that as the posse approached the house of appellant’s father, where appellant was supposed to be concealed, Hardy Adkisson, appellant’s brother, for whom the posse had no process, came near the posse, but, upon discovering them, and without knowing their mission, and without indication of violence, turned and started hack to the house, whereupon the sheriff in charge of the posse gave a command to shoot, or stop, Hardy Adkisson, and just as a member of the posse was about to execute this order by shooting Hardy Adkisson, Tom Adkisson, the father of Hardy, appeared on the front porch of his home and hallooed something to the officer, who apparently was about to shoot his son, and, as the officer appeared not to have heeded — if, indeed, he had heard — this cry, Tom Adkisson entered his home and hastily reappeared with a gun and opened’fire on the posse, and that no one else in or about the house fired upon the posse, and that appellant was not seen around the premises at any time. Members of appellant’s family who were present during the shooting, including Mrs. Leo Martin, appellant’s sister, detailed the circumstances of the shooting as stated in this motion for a continuance. But they were all highly interested witnesses, and the male members of the family were charged with the commission of the murder and it can not, therefore, be said that appellant was not entitled to the continuance because the testimony was cumulative of other testimony offered at the trial. Hall v. State, 64 Ark. 121. But no showing was made that the attendance of this witness could later he secured. At appellant’s request a subpoena had been issued by the clerk of the Cleburne Circuit Court, where the cause was pending for trial, directed to the sheriff of Pulaski County, but the subpoena had been returned non est, and no showing was made as to where the witness had gone, or as to the time when he would likely return, and it was not error, therefore, to refuse the continuance.
Objection was made to the testimony of a Doctor Turner in regard to having examined appellant for military service. But this testimony was brought out during the examination of the witness, who was a member of the posse and had testified that appellant was one of the parties on the porch, who fired upon the posse, and as the identity, as well as the presence, of appellant at the shooting was one of the questions in dispute, it was proper for the witness to state his opportunity to know appellant’when he saw him.
Other assignments of error relating to the admission of testimony to the effect that appellant was a draft resistor are discussed; but we think they may all be disposed of by the general statement that the testimony objected to tended to show the motive for the killing as well as the circumstances under which it occurred.
Objection is made to certain statements of the prosecuting attorney in the course of his argument before the jury; but there appears to be nothing in the bill of exceptions showing what these statements were, the only reference thereto being found in the motion for a new trial. These objections are not, therefore, properly before us for review. Cravens v. State, 95 Ark. 321.
An instruction numbered 23 was given, in which the jury was told that if Hazelwood was a member of the posse that was endeavoring to arrest and capture appellant, or Tom Adkisson, or Hardy Adkisson, and appellant knew that fact, and shot Hazelwood in a spirit of resistance or defiance -of the posse, he could not plead self-defense as an excuse for the killing. Objection is made to this instruction upon the ground that there was no testimony that the posse was endeavoring to arrest Tom Adkisson or Hardy Adkisson. And this appears to be the fact. But only a general objection was made, and we think the point now presented should have been raised in the court below by a specific objection to the instruction.
Appellant requested, and the court refused to give, an instruction reading as follows:
“The court gives you all the law, and by that law so given in these written instructions you are bound.
“But, on the weight of testimony, the court can not aid you. You and you only must judge the evidence, but you can not consider anything as evidence not submitted to you by the court. In arriving at your verdict you have no right to consider outside influence, prejudice or passion or rumors, for or against the defendant.”
This is, of course, a correct declaration of the law, and might very well have been given; but at the request of the State, and of appellant, the court gave a very large number of instructions, and in these the jury was told to try the case upon the evidence introduced, and that the burden was on the State to prove, by competent testimony, beyond a reasonable doubt, that appellant was guilty, and we conclude, therefore, that no prejudicial error was committed in refusing the instruction.
The court also refused to give appellant’s instruction numbered 6, as follows:
“If you find that the defendant became a fugitive' from justice after this alleged crime, then you may con-. sider this as a circumstance tending to show guilt unless explained by the defendant. If you should find that he was afraid of a mob, then this fact of being a fugitive is explained. If you should further find that the defendant volunteered to officers of the law, this becomes a circumstance in the defendant’s favor.”
This instruction was properly refused, as being a charge upon the weight of evidence.
Assignments 69 to 89 relate to rulings of the court on the competency of various veniremen. Isolated answers of several of these veniremen would indicate that such fixed opinions of appellant’^ guilt were entertained that they were incompetent to serve as jurors; hut we think that fact does not appear in any instance where the entire examination is considered as a whole. We have read the testimony as it appears in the transcript, and it is apparent that the killing had attracted wide interest and attention, and that practically all the veniremen had heard about it, and hád talked about it, and had formed some kind of opinion. None of the veniremen held competent had talked with the witnesses, and the opinion in each instance appears to have been based upon rumor. These veniremen did not know appellant, and entertained no bias or prejudice against him, and we think it was not shown that appellant was compelled to exhaust a challenge upon any veniremen who could not try the case, according to the law and the evidence.
No prejudicial error appearing, the judgment of the court below is affirmed. | [
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Wood, J.
This action was brought in the Calhoun Chancery Court to cancel a tax deed and recover damages from the appellees for timber cut from all of that part of the east half of the southeast quarter and the northeast quarter of northeast quarter of section 15, and east half of the northeast quarter of section 22, in township 13 south of range 12 west, lying- west of the Moro Creek in Calhoun County, Arkansas.
The appellants (plaintiffs below) after deraigning their title from the United States Government, allege in their complaint that the appellees (defendants below) are claiming the lands under some kind of void deed and have cut and removed large quantities of valuable timber; that the lands are wild and unimproved and have been; that the pretended deeds under which the defendants claimed are void and cast a cloud upon the plaintiffs’ title.
Plaintiffs prayed that the deed be canceled and that a master be appointed to determine the value of the timber cut and removed from the lands, and that plaintiffs have judgment for same.
The defendants answered, denying all the material allegations of the plaintiffs’ complaint. They alleged that they had title from the State through a forfeiture and sale of the lands for the nonpayment of the taxes. They traced their title through mesne conveyances from the State to W. H. Wheeler on June 23, 1887, and alleged “that, since that date, defendants and their predecessors in title had paid all the taxes assessed against said lands, and that said lands had greatly enhanced in value during their possession and ownership, from but a few dollars per acre to more than $20 per acre; and that defendants all the while had at least color of title to the same; ’ ’ that plaintiffs are barred by laches and limitations. '
The lands described in the appellants ’ complaint are situated on Bayou Moro, a sinuous stream, which constitutes the dividing line between Bradley and Calhoun Counties. Bayou Moro zigags through the land in controversy so that about sixty-eight acres lie in Calhoun County and the remaining 132 acres in Bradley County.
This action is to quiet the title and to recover possession of the lands in Calhoun County and damages for timber cut and removed from those lands.
The appellants deraigned title through a conveyance from the United States to the State of Arkansas, September 28, 1850, and from the State of Arkansas to one Sampson Nutt in 1854 and through various mesne conveyances to appellants. But appellants do not show that they or any of their predecessors in title had listed the lands for taxation in Calhoun County or that they had paid the taxes from that time until the institution of this suit in either Calhoun or Bradley Counties.
The undisputed evidence shows that the lands had always been listed and assessed for taxes under the description as contained in the legal subdivisions of the lands in Bradley County, where the greater portion of the lands are situated as shown by these legal subdivisions. The appellees and their predecessors in title paid taxes on the lands so described, listed and assessed, from the year 1888 until the institution of this suit September 11,1918, a period of thirty years. The deeds under which appellees claim and under which the lands are described were recorded in Bradley County.
In 1888 when W. H. "Wheeler, through whom the appellees trace their title, purchased the lands from the State they were wild and uninclosed and were not worth more than $1.25 per acre. The lands have remained wild and uninclosed since that time, but they have enhanced in value until at the time of the institution of this suit they were worth more than $20 per acre. One of the witnesses valued the land as high as $30 per acre in 1914.
It may be conceded that the tax deed under which appellees claim title is void for the reason that the forfeiture and sale took place in Bradley County, whereas, the lands are situated in Calhoun County. Toby v. Haggarty et al., 23 Ark. 370. It may likewise be conceded that, for the same reason, the subsequent assessments of the land, and payments of taxes in Bradley County by the appellees and their privies in title, did not give ap pellees title by limitation under section 5057 of Kirby’s Digest. Nevertheless, the undisputed facts present', a typical case of laches on the part of appellants which bars them from the relief they seek. Appellants are asking the affirmative relief of cancellation, and damages as for trespass, against appellees. The burden is upon appellants to show that they are entitled to such relief. It is the duty of every one who owns property to pay the taxes thereon, for in this way only do they contribute to the revenue necessary to meet the expenses of the government which protects them. Appellants, as the owners of the lands in controversy, knew that they were not paying taxes thereon. By the slightest diligence they would have discovered that the taxing officers were treating these lands as situated in Bradley County for the purposes of taxation, and that the appellees and their predecessors in title were bearing the burdens of taxation placed upon them. Even though these officers, in so doing, were making a mistake, yet appellants made no effort to have the lands relisted and assessed in the proper county. This was the plain duty of appellants, and their failure to perform such duty shows that appellants did not intend to pay taxes on the lands and hence had abandoned same. The delay and negligence of appellants worked to the disadvantage and prejudice of appellees. “Laches is an equitable defense based upon the doctrine that equity will not act unless the party has exercised good faith and reasonable diligence.” Chatfield v. Iowa & Ark. Land Co., 88 Ark. 395, and other cases cited in 2 Crawford’s Digest, p. 1875, et seq.
In McGill et al. v. Adamis, 120 Ark. 249, we said: “We have uniformly held that the failure to pay taxes on unimproved lands for a long period of time, together with great enhancement in values, constitute abandonment, and that an action seeking equitable relief against one who has paid taxes under those circumstances more than seven years is barred by laches.” Burbridge v. Wilson, 99 Ark. 455.
The decree is correct. Affirmed. | [
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Hart, J.
Heer Engine Company brought this suit in equity against John A. Papan to recover the purchase price of a tractor which it claims was sold under a written contract dated February 27, 1914, and also asked for a foreclosure of the vendor’s lien on the tractor. The defense was that the tractor did not develop the horse power warranted in the contract of sale in the demonstration of it, and that it was never accepted.
The chancellor found in favor of the defendant, and a decree was entered accordingly.
John A. Papan owned a farm of 640 acres in Prairie County, Arkansas, and used twelve mules in cultivating it. It was level land and he usually plowed about 340 acres every season and raised principally rice, oats and corn. He entered into correspondence with the Heer Engine Company for the purchase of a tractor to be used in plowing his land, and all the above stated facts were contained in the correspondence with the plaintiff.
C. Heer, the president of the plaintiff company, met John A. Papan at Stuttgart, Arkansas, and on behalf of his company entered into a written contract with him for the sale of a 16-horsepower tractor for the price of $1,700. The description of the tractor in the contract is as follows:
“One of your 24-brake H. P. 16-tractor H. P. four-wheel drive tractors, with the fixtures and equipment usually furnished with your tractors.”
The contract contained a warranty clause as follows:
“It is warranted that it will be well made and of good material and workmanship. That it is, capable of developing the horse power at which it is rated. If any part (excepting batteries, magnetos, and spark plugs, which are not warranted) prove defective within one year from shipment of said tractor through inferior material, or workmanship, same shall be furnished free by the Heer Engine Company on board cars at Portsmouth, Ohio. Defective parts will be returned prepaid to the Heer Engine Company, Portsmouth, Ohio, for inspection, and, if found defective, charges made for such replaced parts to be remitted. If within six days from its first, use, it should fail to fill the warranty, purchaser shall notify the Heer Engine Company at their office at Portsmouth, Ohio, by registered letter and telegram, stating specifically wherein it fails to do so, and if this defect cannot be remedied by instructions by mail, company shall within a reasonable time send a person to operate the tractor and correct the defects, if any, purchasers to render such friendly assistance as may be required. If the tractor cannot be made to develop the guaranteed power, purchaser shall thereupon return the tractor to the place' where he received it, notify the company by telegram and registered letter at said home office that he has done so, and company shall then have the option to replace it with another, on the conditions herein set forth, or replace defective part or parts or to take back the tractor and return the purchaser’s cash and notes received. This to constitute full settlement between the parties, and no further claim shall be made for any cause or reason for failure of machinery to fulfill warranty.”
The contract also provided that the plaintiff should furnish a competent operator without charge to make a demonstration of the tractor. Pursuant to this contract the plaintiff shipped the tractor to Stuttgart, Arkansas. There John Morgan, an expert engine operator and the demonstration agent of the plaintiff, took charge of the tractor and carried it to the farm of John A. Papan and with the assistance of Papan and his son made a demontration of the machine for six days. According to Ms testimony the operation of the machine was successful, and it in all respects came up to the warranty made in the contract.
According to the testimony of Papan and his son, the tractor would not operate in wet ground at all, and did not develop the horsepower as warranted in the contract. They testified that they could do .more work in a day with eight mules and said that in wet ground the .wheels of the tractor would just spin around and dig a hole in the ground. They afterwards purchased a 10-horsepower tractor and said that it would pull bigger loads than the tractor of the plaintiff could pull.
It was also shown by the defendant that the demonstration of the tractor lasted six days; that on the afternoon of the sixth day the defendant notified the demonstration agent of the plaintiff that he would not accept the tractor because it did not develop the horsepower provided for in the contract; that on the next day the de f endant notified the plaintiff both by telegram and by registered letter that he did not accept the tractor because it did not develop the horsepower provided for in the contract.
As above stated, the chancellor, found in favor of the defendant, and it cannot be said that 'Ms finding in that regard is against the preponderance of the evidence.
The contract provides that if within six days from its first use the tractor should fail to fulfill the warranty, the purchaser should notify the plaintiff by registered, letter and by telegram stating specifically wherein it failed. When the tractor arrived at Stuttgart, Arkansas, the demonstration agent of the palintiff took it to the defendant’s farm and worked with the defendant for six days in testing the tractor. The defendant, on the afternoon of the sixth day, notified the demonstrator that it did not develop the horsepower provided for in the contract, and for that reason he would not accept it. He notified the plaintiff, both by letter and telegram on the next day. This was a sufficient compliance with the provision in regard to notice. Under the circumstances as disclosed by the record, the period of demonstration would be considered as the first use of the machine contemplated by the contract, and, “the notification having been made the next morning after the demonstration had been finished, it was necessarily within the six days.
It is next contended that the court erred in holding that the tractor did not develop the horse power at which it was rated. We cannot agree with counsel in this contention. The contract of sale was for a 16-horsepower tractor, and it was warranted to be capable of developing the horsepower at which it was rated.
The defendant testified that he could do a great deal more work in a day with eight mules than he could with the tractor. It is true as contended by counsel for the plaintiff that the word “horsepower” is a unit of measurement for energy in steam or gasoline engines, and that it cannot be measured by what a horse could pull in the same length of time; yet the fact that eight mules could pull more in a day than a tractor rated as a 16-horse-power tractor was a circumstance to be considered by the court in determining whether the tractor could develop the horsepower at which it was rated.
Again the defendant and his son both testified that they afterwards purchased a 10-horsepower tractor, and that it developed a greater horsepower than the 16-horse-power tractor in question. They also stated that on wet ground the wheels of the tractor would spin around and sink in the ground and stall the machine.
These circumstances were sufficient to warrant the chancellor in finding that the tractor was not capable of developing the horsepower at which it was-rated.
It follows that the decree will be affirmed. | [
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Smith, J.
Appellee is the widow of John C. McElwee, who died intestate and without issue, and appellants are his collateral beirs; and the litigation involves the division of his estate. The points at issue have narrowed until only two remain to be decided.
The' first question is whether east half southwest quarter, section 11, township 7 north, range 20 west, owned by the intestate at the time of his death, was ancestral or a new acquisition. The point is, of course, that if the land was a new acquisition the widow takes a half interest in fee, while if ancestral she takes a half interest for life.
The second question is whether the intestate had abandoned the land above described as a homestead.
Upon the first proposition it is shown that the grandfather of decedent, whose name was William McElwee, Sr., owned 700 acres of land in South Carolina, which he willed to the father of John C. McElwee, whose name was James McElwee, for and during the life of the same James McElwee, and at his death to any children born to the said James McElwee. There were five of these children. James McElwee removed to'this State, and became the owner by purchase of 320 acres of land, the eighty above described being a part thereof. He conveyed an eighty-acre tract to each of four of his children in consideration of their conveyance to him of their interest in the South Carolina lands. A conveyance from the fifth child was also secured by James McElwee, and the consideration for this deed was the sum of $1,000 cash paid. It is now insisted that these conveyances constituted nothing more than a family settlement and resulted in giving decedent, John C. McElwee, title in severalty to the eighty acres herein described, and that his title is therefore ancestral in its character.
The distinction between an ancestral estate and a new acquisition is pointed out in the case of Martin v. Martin, 98 Ark. 93, the facts of which case are somewhat similar to those of the instant case. It was there said: “The purpose of the statute creating ancestral estates was to keep such estates in the line of the blood from whence they came, and blood must be the only consideration by which they are acquired, whether by devise or gift. * * * We conclude that, in order to constitute a gift from a parent to a child an ancestral estate within the meaning of our statute, the conveyance must be entirely in consideration of blood and without any consideration deemed valuable in law; and if such deed is executed partly for a valuable consideration, the estate acquired is a new acquisition.”
Under this test we think the estate was not ancestral. What happened here was that James McElwee undertook to secure from his children the fee to 700 acres of land in which he had only a life estate, and he did this by trading lands and paying money. This was not a family settlement, and it can not be said that ancestral blood was the only consideration, if, indeed, it was any part of it.
John C. McElwee resided on the land above-described from the time of his marriage in 1880 until 1911, a period of thirty-one years, and the proof of abandonment consisted in the testimony of J. N. McElwee, a brother, who stated: “Brother J. C. wrote me that his wife had sold her place, which was adjoining his, and had bought in Russellville. That he was not able to farm and would rent out his place and make Russellville his home.” As appears from this answer the Russellville home was the property of the widow, and she and her husband resided there from 1911 until his death on August 18, 1918.
Mrs. McElwee testified that her husband’s health failed, and she thought it best for him to move to town to be nearer a doctor, but that while they rented their lands they never at any time rented their home on it, but kept the house so they could go back to it at any time, and that it was always their intention to return to it when the husband’s health was restored, but that he never recovered his health. In writing his brother that he would make Russellville his home J. C. McElwee may have intended only that he had changed his residence for a time; and the explanation made by his wife shows that was what he did intend to say.
It is finally insisted that Mrs. McElwee made an election to select the town property as her homestead by residing on it for about a year after the death of her husband. But this suit was brought within about a month after the death of her husband, and in her answer, which she soon thereafter filed, she claimed the farm home as her homestead. It can not, therefore, be said that she has elected not to claim the homestead of her husband as her own.
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Wood, J.
This action was brought by the appellee against the appellant to recover the sum of $500 alleged to be due appellee from the appellant as commission on the sale of certain real estate.
The appellee alleged that the appellant gave him written authority to sell the land.
The appellant admitted that he gave the appellee written authority to sell the land as described in appellee’s complaint, but denied that appellee sold the land upon the terms agreed upon between them and denied that he was indebted to the appellee in any sum.
The appellee testified to and exhibited an instrument which, after describing the land, recites: “I hereby authorize Barry Lassiter to sell the above tract of land which I own. Signed, John A. Hinkle, Batesville, Arkansas, July 16, 1918.”
The appellee stated that the contract between him and the appellant was that if appellee sold the land appellant was to give him as his commission all that the land sold for over $1,000; that he procured a man by the name of Captain Vance to purchase the land, sold the land to him and sent him to the appellant, who closed the sale. Appellant received as the purchase price the sum’ of $1,500. After the deal was closed the appellee demanded of the appellant his commission in the sum of $500, which appellant refused to pay.
The appellee further testified that he, his son, and appellant were the only parties present when the contract was made for the amount of appellee’s commission.
The above is the substance of the material testimony for the appellee. His testimony was corroborated by his son, Virgil Lassiter.
Elijah Britt testified that he was present when Captain Vance came to see Lassiter about the purchase of the land in controversy in the summer of 1918. He was asked the following questions:
“Q. Well, I will ask you if Lassiter sold the land to Vance at that time?
“A. Yes, sir.
“Q. Did he give him the numbers of the land?
“A. Yes, sir.”
The appellant objected and asked that the question and answer about selling the land to Vance be stricken out. The court refused the request, and appellant duly excepted to the ruling of the court.
The appellant testified that he gave appellee the written authority to sell the land above set forth but that it was not an exclusive authority, that he told appellee that the price for the land was $1,500; that about a week after this, appellee told appellant that the purchaser appellee had in view had fallen down on him, and appellant told the appellee that he could have a little further time. Two or three weeks after the last conversation with appellee Joe Magness came to appellant and asked appellant to allow him to sell the land. Appellant told him that he could sell the same for $1,500, and in a short time Magness came back and told appellant that he thought he had the land sold and asked appellant to get up the ab stract. In the meantime appellee told the appellant that Magness and Vance were going to sell the land. Vance and Magness were partners in the real estate business, and appellant carried on his negotiations with Magness.
Captain Vance testified that Magness got the right from the appellant to sell the land in controversy and that he and Magness were to get all over $1,500. They bought the land from the appellant about the 10th of August. The deed was made to J. D. Magness and the consideration was $1,500. They were buying the land to sell again.
Magness and another witness testified corroborating the testimony of Captain Vance.
The jury returned a verdict for the appellee in the sum of $500.
There was a motion for a new trial and among other grounds the appellant set up that since the trial he had discovered that B. H. Hinkle and Bobert Gray would testify in substance that they heard a conversation between the appellant and appellee concerning the sale of the land in controversy, in which the appellee requested the appellant to give the appellee authority to sell the land and during the conversation they heard the appellant tell the appellee that $1,500 was his price for the land, and that appellee could have all over that price. Appellant stated that he had no way of knowing before the trial that the above witnesses had heard the conversation as set forth in their affidavits, which accompanied the motion.
The motion was overruled, and judgment was entered in favor of the appellee, from which is this appeal.
The appellant urges two grounds for reversal.
First, because of the error of the trial court in permitting Elijah Britt, witness for the appellee, to testify over the objection of the appellant that appellee sold the land to Vance.
Second, because the court erred in not granting the motion for new trial on the ground of newly discovered! evidence.
(1) The court did not err in permitting Britt to testify that appellee sold the land to Vance.
In the first place, after the witness had stated that he was present when Captain Vance came to see appellee about some land and heard a statement that Vance made about buying some land and heard the conversation between the appellee and Vance concerning it, witness was asked by the counsel for the appellee the following question: “Q. Do you know anything about the sale of this land, the Hinkle land, that Mr. Lassiter had an option or authority to sell?” Witness answered, “Well, Mr. Vance came up there to see if Mr. --.”
Here the appellant objected to witness “stating anything that Mr. Vance said there.”
The court sustained the appellant’s objection to this, and thereupon appellee’s counsel asked the- witness if Lassiter sold the land to Vance there at that time, which question witness answered in the affirmative.
It will thus be seen that appellant invited the error of the court, if it be an error, in permitting the witness to state that the appellee sold the land to Vance, instead of permitting the witness to testify as to the conversation between the appellee and Vance and giving the statement of Vance concerning the purchase of the land. The issue for decision was whether or not the appellee was entitled to the amount sued for as a commission. That issue involved the collateral issue as to whether or not the appellee had sold or procured a purchaser who was ready, willing, and able to buy the land upon the terms agreed upon between the appellee and appellant, and on that issue it was competent for the appellee to show that he had procured Vance to purchase the land and to give in that connection the conversation that Vance had had with him concerning the purchase.
Such statements of Vance in a conversation between him and the appellee concerning the sale or proposed sale of the land to Vance were not hearsay, but original evidence.
Since appellant by his objection precluded the witness from giving the details of the conversation between Vance and the appellee which caused the witness to state that the appellee sold the land to Vance, the appellant is not in an attitude to complain of the ultimate fact to which the witness testified, towit: “That appellee sold the land to Vance.”
In the second place, if witness Britt, after hearing the conversation between Vance and appellee concerning the sale and purchase of the land, knew from the conversation and negotiations between.them that appellee had sold the land in controversy to Vance, he could so state, and his statement in that form would be the statement of a fact and not a conclusion of law.
Of course, if the issue to be determined is such that it appears from the testimony that the witness is stating his deductions or conclusions from the facts of any given transaction and that he is not stating a fact, then the testimony would be incompetent.
Here, it is manifest from the nature of the transaction that the witness was not stating or purporting to state a legal status or drawing a legal inference from what he heard. He was simply stating as a fact that appellee sold the land to Vance.
In 17 Cyc. 222 is the following statement of the law applicable here: “The existence of a particular legal status cannot be stated as the conclusion of the witness. The exercise of the judge’s discretion in rejecting such conclusions is guided by two main- considerations which may be stated as follows: (1) To what extent legal inference predominates over statement of fact; and (2) how far the conclusion relates to a matter in issue, and so within the distinctive province of the jury. It follows therefore, that where the conclusion offered, although to a certain extent resting upon the application of legal principles, is in main a mere statement of fact, and especially where the subject-matter is only collaterally involved, a witness will be permitted to state it.”
The statement of Britt did not involve the whole merits of the controversy because, even though appellee had sold the land to Yance, nevertheless he would not be entitled to a commission unless he had sold upon the terms agreed upon between the appellee and the appellant.
(2) The court did not err in holding that appellant was not entitled to a new trial on the ground of newly discovered evidence.
The appellant alleges in his motion that “he did not know and had no way of knowing” of the newly discovered evidence at the time of the trial. Motions for new trial on the ground of newly discovered evidence are addressed to the sound legal discretion of the presiding judge and it is only in case of an apparent abuse of that discretion or of justice that this court interferes. Ward v. State, 85 Ark. 179.
‘ ‘ To entitle a party- to a new trial on the ground of newly discovered evidence the appellant must show that he used due diligence in discovering and producing the same, or that the newly discovered evidence could not have been procured by the exercise of due diligence on his part to produce it.” Southern Cotton Oil Co. v. Campbell, 106 Ark. 379, and cases there cited.
Here appellant did not allege in his motion or adduce any testimony which tended to prove that he had exercised any diligence to discover and produce at the trial the newly discovered evidence.
A motion for a new trial on the ground of newly discovered evidence is not sufficient where it fails tg state facts showing that due diligence was used to discover it before and produce it at the trial. St. L. S. W. Ry. Co. v. Stanfield, 63 Ark. 543; McDonald v. Daniels, 103 Ark. 589, and other cases cited in 4th Crawford’s Digest, p. 3817, sec. 42.
There is no error in the record, and the judgment must, therefore, be affirmed, | [
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McCulloch, C. J.
Appellants’ assignors, and the predecessors of appellees, were originally under written contract with each other for the payment by the former to the latter of certain sums as royalties on coal to be mined from lands owned by the latter. The contract provided for a mode of arbitration of differences which might arise with respect to the amount of coal mined from the land. A controversy arose between appellants and appellees as to the amount due for royalties, and appellees instituted this action on the allegations that an oral contract was subsequently entered into between the parties for the settlement of the dispute by the payment of the sum of $1,000 to appellees in full settlement of the disputed claim. Appellants denied that there was any completed agreement for the settlement of the claim, and the case was tried below upon that issue. The trial resulted in a verdict and judgment for appellees.
It is contended that the case should not have been submitted to the jury for the reason that no' cause of action was stated in the complaint and none supported by the evidence adduced. The argument is that, since there was originally a written contract between the parties, or their predecessors in title, which not only fixed the rights of the parties, but provided for a method of settlement of disputes, no cause of action was stated or proved, because it was not alleged or proved that the terms of the written contract were complied with by appellees.
The weakness of the argument lies in the assumption that the parties could not change the terms of the original contract by a new agreement, or settle a disputed claim by a new agreement without regard to the method of settlement specified in the original contract. The settlement of the disputed claim constituted a consideration for the agreement, and there was mutuality in the alleged agreement to settle according to the new terms stated.
Again, it is contended that it is shown by the undisputed evidence that the alleged oral agreement was not consummated, but that it was merely a part of negotiations between the parties which were to result, if finally agreed upon, in a written contract. That was, Indeed, the contention of the witnesses introduced by appellants in the trial below, but the testimony on that subject was not undisputed. The testimony adduced by appellees tended to show that the terms of the contract of settlement were fully and definitely agreed upon, notwithstanding the fact that the agreement was to be reduced to writing and signed by the parties, and that appellants in preparing the written contract introduced into it new matter not in accordance with the oral agreement which frustrated the effort to reduce the contract to writing. The court submitted this issue to the jury upon an instruction requested by appellants themselves, and the verdict must be treated as settling 'the issue against the contention of appellants. If, as stated by the witnesses introduced by appellees, there was a completed oral agreement, the parties were bound by it, even though it was to be reduced to writing. Friedman v. Schleuter, 105 Ark. 580.
Even if the original written agreement with respect to payment of royalties was a matter within the statute of frauds so as to require evidence of the written agreement, the contract for the settlement of the disputed claim was not one within the statute of frauds, and it is not essential to its validity that it should be in writing.
The testimony adduced by appellees tended to show that this agreement for settlement of the disputed claim was made with. Mr. Gearhart, who was at that time the president of appellant corporations and was the active agent of appellants. There was testimony legally sufficient to establish the fact that the contract was entered into by Gearhart as alleged by appellees, that he was the president and agent of appellants, and that it was within the apparent scope of his authority to effect this settlement. That issue was submitted to the jury, and the verdict is decisive.
It is insisted that the court erred in permitting Mr. Covington, one of the''appellees, to testify in regard to a conversation with Mr. Gearhart. Covington testified that the oral agreement was made with Gearhart and that its terms were accepted by appellees. This testimony was, of course, competent, as it had a bearing directly upon the main issue in the case whether or not there had been such contract entered into between the parties. He then testified that subsequently he went to Scranton, Pennsylvania, to see about the consummation of the settlement by payment of the sum agreed on, and that Gear-hart stated to him that Mr. Denman, his successor, refused to pay the claim for the reason that appellants were not liable. Objection was interposed to this testimony.
It was not proper to admit this testimony for the purpose of contradicting Gearhart without laying the proper foundation, nor was it 'competent to prove the statement of Gearhart made subsequent to the transactions in which Gearhart was the active agent of appellants. If the transaction was within the scope, or apparent scope, of Gearhart’s authority, then appellants were bound by it, but they were not bound by h'is subsequent admissions concerning the transaction. However, it does not appear that this testimony was introduced for the purpose of proving an admission on the part of Gear-hart that appellants had entered into the contract as claimed by appellees. Mr. Covington was merely completing his narrative concerning the transactions between the parties by stating that after the contract had been entered into lie went to Scranton for the purpose of securing payment of the amount agreed on, hut that payment was refused on the ground that Mr. Denman had denied liability on the part of appellants. This testimony did not constitute an express admission on the part of Gearhart that he had previously entered into the contract, and if appellants’ counsel feared that the jury might interpret the statement as an implied admission on the part of Gearhart, attention to this should have been called to the court by a specific objection. It is too late now to condemn the ruling of the court on the ground that the testimony of Covington with respect to Gearhart’s statement constituted an admission on Gearhart’s part that the contract had been previously entered into and was incompetent on that account.
We find that there was sufficient evidence in the record to sustain the verdict, and that the issues were properly submitted to the jury.
Judgment affirmed. | [
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Hart, J.
(after stating the facts). It is sought by the plaintiff to uphold the judgment on the ground that the contract is not ambiguous and that the court properly construed it not to reserve the articles sued for.
On the other hand, it is contended by the defendant that the contract is ambiguous, and that oral testimony was admissible to explain the meaning of the words, “personal effects,” as used in the contract. Ordinarily it is the duty of the court to construe a written contract and declare its meaning to the jury. Where, however, the contract contains words of latent ambiguity, oral testimony is admissible to explain the meaning of such words. Wilkes v. Stacy, 113 Ark. 556.
Tested by this rule, we think the court erred in instructing a verdict for the plaintiff. We do not think that the words, “personal effects,” as a matter of law should be restricted to such tangible property as is worn or carried about the person. In construing the meaning of these words, particular regard must be given to the connection in which they are used. Each case must be construed according to the connection in which the words are used, regard being had to the situation of the parties and the surrounding circumstances.
Mrs. Ellege was conducting a hotel which had twelve rooms which were used in the business. Her husband, her son and herself occupied two rooms downstairs, which were furnished by her for that purpose. She sold her hotel and its furniture to Henderson. When they moved out, she carried with her the furniture in the two rooms occupied by her family. Henderson claimed the fnmiture under the contract of sale. She sold the hotel for $4,000. The first part of the contract deals with that phase of the subject. Then follows this clause: “It is understood and agreed by us that all equipmént and furnishings now in and around said house are to go to Henderson for the consideration of $4,000 as above stated except the own personal effects of said Elleges. In other words, the hotel is to be left fully equipped for business as it now stands.” It will be noted .that the language quoted deals with the disposition of the equipment and furnishings in the hotel. The agreement, in brief, is that all equipment and furnishings now in the hotel are to go to Henderson except the own personal effects of the Elleges.
When the parties in a contract enumerate a particular class and immediately couple with that class the words, “personal effects,” these words must be applied to articles ejusdem generis with those specified in the preceding part of the sentence. The parties weré dealing with a disposition of the equipment and furnishings of the hotel and a fair and reasonable interpretation of the words, “except the own personal effects of said Elleges,” would show that the parties referred to furnishings of the hotel which had been for the personal use of Mrs. Ellege and her family. It can not be said as a matter of law that the parties were referring to articles usually worn on the person when as a matter of fact the sentence deals with the disposition of the furnishings of the hotel and it might be fairly said that the words personal effects as used in this sentence by the parties referred to the furnishings used by Mrs. Ellege; otherwise, why except the personal effects of Mrs. Ellege from the furnishings if they were not of the same class as those mentioned in the first part of the sentence. This view is strengthened when we consider the words following. They are explanatory words and show that the parties meant that only the equipment and furnishings which had been used by Mrs. Ellege in the proper conduct of her hotel business should pass under the sale.
Therefore, we are of the opinion that the contract is ambiguous, and that oral testimony is admissible to explain the meaning of the words used, and that the court should have submitted to the jury to determine in what sense they were used. Paepcke-Leicht Lbr. Co. v. Talley, 106 Ark. 400.
It follows that the court erred in directing a verdict for the plaintiff and in not allowing the explanatory testimony of Mrs. Ellege to go to the jury. On this account the judgment must be reversed and the cause remanded for a new trial. | [
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Hart, J.
(after stating the fácts). Counsel for appellant moved to exclude the testimony of appellees and excepted to the ruling of the court in admitting it. The court erred in its ruling. There was no implied warranty as to the quality of the flour. The contract itself was silent in this respect. In the case of a sale of personal property a warranty of its quality is a part of the contract of sale and is not a separate and independent collateral contract. Therefore proof of such warranty cannot be added to the written agreement by parol evidence. To justify the admission of a parol promise by one of the parties to a written contract, on the ground that it is collateral, the promise must relate to a subject distinct from that to which the writing relates. Our court has expressly held that a bill of sale which contains no warranty cannot be added to by proof of a contemporaneous oral warranty. Lower v. Hickman, 80 Ark. 505. In discussing the question, Chief Justice Hill said: “A warranty is so clearly a part of a sale that where the sale is evidenced by a written instrument it is incompetent to engraft upon it a warranty proved by parol. The character of the written instrument is not important, so long as it purports to be a complete transaction of itself, and not a mere incomplete memorandum or receipt for money or part of a transaction where there are other parts of it other than warranties. It may be a complete contract signed by both parties and comprehensive and exhaustive in detail, and contain many mutual agreements, terms and stipulations, or it may be a simple bill of sale, or sale note evidencing the sale. The principle is the same in any of these transactions, and oral evidence of a warranty is almost universally excluded when a complete written instrument evidences the sale. It is not important that the instrument be signed by both parties, for acceptance of the other may be equally binding, and the principle here invoked is as often applied to unilateral as to bilateral instruments.”
The same reasoning applies with regard to the testimony of the test made of the sample flour sent by appellant to appellees after the contract had been executed. The sale was not made by sample, and the contract was silent in this respect. The contract having failed to show that the sale was by sample or that the flour was to be equal in quality to other flour kept in stock by appellees, or that it was to be satisfactory to appellees, it was clearly error to permit appellees to introduce parol evidence in regard to these matters. It was likewise error to permit appellees to introduce parol evidence to the effect that appellant’s salesman told them that, if the price of flour declined, they might counter maud the order, for such testimony plainly varied the terms of the written order, or contract.
For the error in admitting such testimony the judgment must he reversed and the causé remanded for a new trial. | [
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Wood, J.
This is an appeal from the chancery court of Periy County. The action was instituted by the appellee against the appellant.
The appellee alleges that he is the owner of certain lands in sections 13 and 18 in Perry County, Arkansas; that the appellant without right had entered upon the lands and is removing valuable timber therefrom, and unless restrained would cause damage to the appellee for which he had no adequate remedy. Appellee prayed for a temporary restraining order and upon the final hearing for perpetual injunction restraining appellant from cutting and removing timber from the lands.
Appellant answered and alleged that he was without knowledge as to whether the appellee was the owner and in possession of the lands specifically described in the appellee’s complaint. Appellant denied that he was in possession, and that he was cutting and removing the timber without right, and denied that appellee had no adequate remedy at law, and that he (appellant) was insolvent. He alleged that his father, Jesse Gray, was the owner of certain lands which he described situated in section 7, township 5 north, range 15 west; that at the death of their fathei', appellant and four other children inherited the lands. He alleged that the lands were situated on the Arkansas River; that during the lifetime of his father all of the lands were washed away; that an island was formed within the original boundaries of the lands and thereafter continued to enlarge by accretion until it covered all and beyond the lands of the original survey of the lands owned by his father; that, by reason of the avulsion of the original lands and the subsequent formation of the island and the accretions thereto, the appellant and the other heirs at law of Jesse Gray beqame the. owners of the lands described in his answer and which appellhnt was then in possession of for himself and as the agent of the other heirs. The answer was signed by G. F. Clerget, Edward Gordon, Strait & Strait, “attorneys for defendant.”
After the issue thus joined, the attorneys for appellee and W. P. Strait, one of the attorneys for the appellant, entered into a stipulation whereby they agreed that “all questions as to the jurisdiction of the court in this case are waived.” This stipulation was filed in 1917. After the depositions were taken the cause proceeded to a hearing and final decree was rendered on May 15,1919. The decree recites that the cause was submitted upon the complaint, answer, demurrer and deposition of witnesses and also upon the stipulation of counsel that this cause might be tried in chancery.
The decree, however, as it appears from the recitals thereof, was not finally entered of record until June 24, 1919, when on that day the same was entered mmc pro tunc as of May 15, 1919.
The record shows that on May 30, 1919, "W. P. Strait withdrew as counsel for the defendant. On May 20,1919, it appears that the appellant through his counsel filed a motion to transfer the cause. That motion was responded to, and the affidavit of appellant was taken in support thereof in which he denied that he ever gave any authority to any of his attorneys, and particularly W. P. Strait, to enter into or make any agreement or stipulation that all questions as to the jurisdiction of the court were waived.
The order of the court overruling the motion to transfer recites, among other things, that “the court doth find that W. P. Strait being the duly authorized leading counsel in this cause for the defendant, together -with attorney for plaintiff, heretofore executed and filed a stipulation herein that this cause might be tried in this court, and that in case a finding was made for the defendant that jurisdiction might be retained for the purpose of settling the boundaries of the respective parties; that, in pursuance of said agreement, at great expense, depositions were taken and this cause by consent of all parties submitted to this court December 17, 1918, and at the request of all parties by the court taken under advisement, decree to be rendered in vacation at Morrilton; that, thereafter, towit, on May 15, 1919, the court rendered a final decree for plaintiff without objection having previously been made by defendant to the jurisdiction of the court.”
While the cause was pending, the appellee filed a petition in which he alleged that since the institution of the suit and up to the time of filing the petition appellant had been and was at the time endeavoring to cause discontent among the tenants of appellee for the purpose of having the tenants quit possession of certain lands in order that appellant might secure possession thereof; that he was attempting to collect rent from appellee’s tenants, although such tenants were cultivating lands which at the commencement of the suit were entirely in the possession of the appellee and under his control. This petition alleged the insolvency of the appellant, and further alleged irreparable injury unless the restraining order should be issued.
The court granted the prayer of the petition for the restraining order.
First. The first contention of appellant is that the chancery court was without jurisdiction. This contention cannot be sustained for several reasons. True, the original complaint was defective and did not state facts sufficient to give the chancery court jurisdiction, because it failed to allege that the appellant was insolvent, and therefore failed to allege facts showing that the appellee had no adequate remedy at law for the trespasses of appellant of which the appellee complained. Burnside v. Urnom Saw Mill Co., 42 Ark. 118, and cases there cited. But the chancery court had jurisdiction of the parties, and it had jurisdiction of the subject-matter of restraining trespasses on the lands of appellee if the pleadings raised the issue that the trespasser was insolvent. The pleadings did raise that issue.
The defect in the complaint was cured or removed by the allegations of the answer in which the appellant denied that he was insolvent. In Choctaw, Okla. & Gulf Ry. Co. v. Doughty, 77 Ark. 1-7, we said: “A defect in pleading is aided if the adverse party plead over to or answer the defective pleading in such a manner that an omission or informality therein is expressly or impliedly supplied, or rendered formal or intelligible.”
Again the omission of the complaint to allege that appellant was insolvent was supplied by the allegation to this effect in the petition which the appellee filed asking that the appellant be restrained from “interfering with the possession of appellee or his tenants in any of the lands described in the original complaint or any accretions thereto except such lands as were actually in the possession of the defendant (appellant) at the institution of this suit. This petition was but supplementary to the original complaint which contained a prayer for a restraining order.
Furthermore, the court correctly ruled that the motion to transfer to the law court was too late, coming as it did after appellant, through his counsel, had waived objections to the jurisdiction of the chancery court, and had by consent submitted the cause for hearing before that court, and after a final rendition of the decree in that cause. Collins v. Paepke-Leicht Lbr. Co., 74 Ark. 81. The court having jurisdiction of the parties and the subject-matter, it was within the power of the appellant through his counsel to waive omission of the complaint to allege the insolvency of the appellant.
Second. After the court refused to transfer the cause to the circuit court, the appellant filed a motion to continue on the ground that the testimony and maps of the two surveyors, one of whom was a witness for the appellant and the other for the appellee, differed as to the exact location of the land of which appellant was in possession.
Appellant set up in his motion that he desired to have a further survey made by a competent surveyor, and that he had been unable to do so because the land had been covered with water; that he desired to have this survey in order to show more clearly if possible that the land in controversy was situated in section 7, and that he also desired to more fully develop the testimony by showing the value and amount of improvements which he had made upon the land and the amount of taxes which he had paid.
It appears that appellant took the deposition of witness H. L. Wright, a surveyor, November 10, 1916, who previously had made a survey of the land at the instance of appellant. The deposition of E. A. Woolverton was taken on September 19, 1917. He had previously made a survey of the lands at the instance of the appellee. Plats which these witnesses had made respectively were filed with their depositions. These plats, therefore, were of record in the cause more than a year before its submission, and were, therefore, subject to the inspection of appellant and his counsel. Appellant fails to show any diligence whatever to procure the survey which he claims might more clearly elucidate the situation of the lands and throw additional light on the subject-matter of the controversy.
Appellant did not in his motion set up or show that the previous surveys were made by persons unskilled in the art of surveying and therefore incompetent. He did not allege that the additional survey would be made by one more competent and skilled than the surveyors who had already testified. The court might have concluded, for aught that appears in the record to the contrary, that a new survey, instead of throwing light upon the issue, would render confusion more confounded.
The only'excuse appellant gives for not having made the desired survey earlier was that the lands during the winter and spring months were inundated, rendering the survey impossible. But the summer and fall seasons had intervened at the time of the taking of the depositions concerning the previous surveys and the time when appellant asked for the continuance.
TJdrd. Learned counsel for appellant contends in the last place that the testimony is not sufficient to entitle the appellee to recover. The issue was narrowed in the pleadings and proof to the question of whether or not appellant or appellee was the owner of the particular lands which were occupied by the appellant.
The burden of proof is upon the appellee to show that he is the owner and entitled to the possession of the lands in controversy. He must recover, if at all, upon the strength of his own title, and not upon the weakness of the title of the appellant. Glasscock v. Nat. Box Co., 104 Ark. 154; Wallace v. Hill, 135 Ark. 353.
The testimony shows that appellee and one Jones obtained a deed to the land in controversy from L. E. Hill, November 9, 1901, and that Jones executed a deed to the appellee for his interest in March, 1909. Appellee testified that at the time he and Jones purchased the lands from Hill the lands including the accretions were inclosed by a fence. He says: “The farm part of it was fenced in separate from the other but the whole tract was under fence.” Later he acquired the entire interest from Jones, and since 1901 no one had owned any interest in it except himself and Jones. In 1905 he cleared about seven acres of the land that appellant claims. It was cultivated by tenants. He was asked if he had exercised any acts of ownership on any other portion except the part that was cleared, and he answered that he had by keeping it inclosed and using it as a pasture for stock. He was asked if he rented it out at various times and he answered in the affirmative. He was further asked if he and Jones together, since their purchase in 1901, claimed to own all the accretions, and if they had held it openly and adversely since the purchase of the land from Hill. He answered in the affirmative.
Appellee testified that prior to the time that appellant entered upon it he had a suit with one Mobbs in regard to it, which was disposed of in the Supreme Court some time in 1911. The controversy between himself and Mobbs arose over the division of the accretion in front of the two tracts of land, but his right to a portion of the accretion was not in controversy. Beyond that suit with Mobbs, his title to the accretion or right to the possession had never been questioned by any one up to the time that appellant moved on the same. The entire accretions had been under fence since 1901. He had fences constructed in the bend to divide the land in cultivation from his pasture lands, and he continued to control and rent out the land between tbe fence and the .river and to exercise the same authority over it as he did over the lands in cultivation.
It could serve no useful purpose to set out further the testimony in detail. The testimony of the appellee is corroborated by the testimony of other witnesses to the effect that the land in controversy had been occupied by appellee under color of title for a sufficient length of time to give him title by adverse possession. Nor would it be worth while to set out and discuss in detail the testimony upon which appellant relies to sustain his contention that the land in controversy was within the original boundaries of the land owned by his father, and that, after having been washed away, they were gradually rebuilt and formed within the boundaries originally described in the deed to Ms father, Jesse Gray, that is to say in section 7, township 5 north, range 15 west. Suffice it to say, after considering the testimony of the appellant himself and the testimony of the witnesses adduced by him including the testimony of the surveyor and the plat exhibited with his deposition together with the testimony of the appellee and the witnesses adduced by him, the testimony of the surveyor and the plat also exhibited with his testimony, we have been unable to reach a satisfactory conclusion as to whether or not the lands in controversy are accretions within the boundaries of the original tract of land conveyed to the appellant’s father. There was considerable testimony tending to show that no island was formed within the boundaries of the land originally owned by appellant’s father. If the island was formed as claimed by the appellant, the testimony is such as to leave our minds in grave doubt as to whether it was within the boundaries of the land originally owned by the appellant’s father.
We are unable to determine from the testimony in the whole record where the preponderance of the evidence lies on this issue. Therefore, we treat the finding of the chancellor as persuasive and adopt it as our own. Leach v. Smith, 130 Ark. 465.
The chancellor found that no part of the land in controversy was formed as an island, but that the same was an accretion to original tracts of land owned by the appellee in sections 13 and 18. See Bush v. Alexander, 134 Ark. 307. Under this finding of fact by the chancellor, the act of April 26, 1901, section 4918 of Kirby’s Digest, upon which appellant relies to give him title by accretion, has no application.
The decree is correct, and it is, therefore, affirmed. | [
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Humphreys, J.
Appellant was indicted, tried and convicted in the Prairie Circuit Court, Southern District, for the crime of larceny, and his punishment fixed at one year in the penitentiary. An appeal from that judgment has been properly prosecuted to this court.
The facts not in dispute disclose that appellant was engaged in the butcher business in September, 1917, at the town of Biscoe. Prank Gill, the prosecuting witness, lived out from Biscoe, about three-quarters of a mile from the bridge across Jackson’s Bayou. He owned a two-year-old white and red spotted heifer, marked with “clip off right and under-bit under left ear.” The yearling had always ranged on both sides of the bayou and came up every evening until a certain Friday evening in September, 1917. Gill made a search Saturday following but failed to find it. He found where an animal had been butchered about 75 yards south of the bayou, and, onMonday morning following, found blood on the banister and floor on the east side of the bridge spanning the bayou. The heifer had been raised in that range and was never seen after that time. On the evening the yearling failed to come up, appellant and Louis Davie killed and dressed a yearling at the place where Gill, the prosecuting witness, had found evidences of an animal being butchered. The animal butchered at that place was hauled to the butcher shop of appellant that night.
The other facts disclosed by the record are in sharp conflict. The evidence on the part of the State tended to show that appellant employed Louis Davie to assist Mm early in the evening in killing a yearling at the place in question; that appellant placed it, after night, in one-horse wagon and hauled it to his butcher shop at Biscoe, reaching there about midMght; that, en route, while on the bridge crossing the bayou, appellant threw the head of the yearling into very deep water.
The evidence on the part of appellant tended to show that he went to the bayou to fish, and, while there, bought the yearling from Louis Davie for $25, and paid him $1.25 for helping him dress it; that, at Davie’s request, he gave him the head and does not know what disposition was made of it; that he left the bayou early in the evening and reached Biscoe about eight or eight-thirty p. m.; that he fed his mules and went to bed.
The first insistence for reversal is that the evidence is insufficient to identify the carcass found on Saturday M appellant’s shop as being the yearling owned by Frank Gill, the prosecuting witness. We think the identity be tween the carcass and Gill’s yearling sufficiently shown by the following facts: Gill’s yearling had been raised in the particular range where appellant and Louis Davie killed and dressed the yearling. The place where the animal was killed was a short distance from the home of the prosecuting witness, Frank Gill. Frank Gill’s yearling was gentle and accustomed to coming home every evening late, but was never seen in that range or elsewhere after the time appellant and Davie killed and dressed the yearling found in appellant’s butcher shop the next day.
It is insisted that the court erred in instructing the jury as follows: “To the indictment in this case the defendant pleads not guilty; that casts the burden upon the State to prove his guilt beyond a reasonable doubt. Before you can convict the defendant, you must be convinced beyond a reasonable doubt, that the State has established his guilt; and the State is required to establish each and every material allegation in this indictment, which are, that the defendant did, either by himself, or with aid or assistance of others, in the Southern District of Prairie County, within three years prior to the finding of this indictment, commit this crime by converting to his own use this cow, the personal property of Frank Gill.”
The inherent error contended for in the instruction is that it omitted a criminal or felonious intent as an essential in enumerating the necessary elements constituting larceny. The State justifies the instruction on the ground that the court read the statute to the jury which provides that the crime of larceny must be a taking with the intent to steal, and in emphasizing, in other parts of the charge that the conversion of property must be with a felonious or criminal intent in order to constitute larcenv. It will be noticed, in giving the instruction challenged, the court purported to set forth every material allegation necessary to support a charge of larceny, and felonious intent is the very gist of the charge. A conversion without such criminal intent is not larceny. The omission of this essential, in attempting to define every element of larceny, brings that portion of the instruction challenged in direct conflict with the other parts of the charge, to the effect that a criminal or felonious intent is a necessary essential in a charge of larceny.
Because of the inherent error carried in that portion of the charge challenged, the judgment is reversed and the cause remanded for a new trial. | [
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Lacy, Judge,
delivered the opinion of the court:
The record in this case presents but a single question for our decision, which is, did the court below err in permitting the defendants to , read to the jury the writ of attachment as evidence in the cause. It is insisted on behalf of the plaintiff, that the court erred in refusing to give certain instructions asked for by him, and also in granting others, at the instance of the defendant; but before we are at liberty to examine the correctness cr incorrectness of these instructions, it is necessary to ascertain if any such instructions were asked for, refused, or given,, and excepted to upon the trial, and made a part of the record. We have found this inquiry every way easy of solution. It is perfectly clear that the record wholly fails to show any one of these facts. It is true that the Clerk has copied into the transcript certain instructions, and has marked them filed, and has written upon the margin opposite to each instruction, the word “ given” or “ refused.” These entries are mere clerical memoranda made without any order or authority of the court, and consequently they catínot be regarded as forming any part of the record in the case.
It is said that the instructions properly belong to the record, because the plaintiff in bis motion for a new trial refers to them, and that the court below in overruling his motion, put them on file upon the rolls. The position is wholly untenable. The plaintiff in error moved the court for a new trial; first, because the verdict was contrary to law; and secondly, because the court erred in giving and refusing certain instructions to the jury. The motion for a new trial was overruled, and the party making it, did not except to the opinion of the court, in deciding the points. It is impossible for this court judicially to know opon what grounds the motion for a new trial was refused. The presumption is in favor of the verdict and judgment below, and they must stand until they are overthrown by other affirmative proof. In the present instance there was no exception filed to the opinion of the court overruling the plaintiffs’ motion for a new trial, and that circumstance alone conclusively proves that there was no error in the opinion given, or if there was, the defendant expressly waived it, by not excepting at the time. For aught that appears from the record, the court below refused to grant a new trial upon the ground that no such instructions as were referred to in the motion, were ever asked or insisted upon, or reserved at the trial. The instructions, therefore, may or may not have been given or refused upon the trial, but as they form no part of the record before this court, we cannot regard them in any decision we may make affecting the merits of the controversy now pending. This point has been expressly ruled in Gray vs. Nations, 1 Ark. 557, and Lenox, vs. Pike and wife, and Smith and wife, ante.
The record in this case presents another preliminary question, which is, where a party excepts during the progress of a trial, 'and after-wards there is a verdict and judgment entered up against him, and he thereupon moves for a new trial, whether that is not a waiver of his exceptions? As this point is one of much interest and magnitude in practice, we do not think it advisable to express any opinion in regard to in the case now under consideration, especially as we have not a .full bench, and the same result follows in the decision we are about to make.
The only question then to be decided is, was the writ of attachment properly or improperly admitted as evidence in the case ? In order to arrive at a just conclusion upon this point, it is 'necessary to consider the character and form of the action, and what the pleadings put properly at issue.
An action on the case, properly so called, is founded upon the mere justice and conscience of the plaintiff’s right to recover, and is in the nature and effect of a bill in equity. Therefore a recovery, release, or satisfaction need not be pleaded, but may be given in evidence under the general issue. Whatever will in equity, or in conscience, preclude the plaintiff ?s right of recove ry may be given in evidence in an action on the case. And the-reason according to Chitty is that “ the plaintiff must recover upon the conscience of his case, and upon that only.” In action therefore upon the case, under the plea of not guilty, the defendant can not only put the plaintiff upon proof of the whole charge contained in the declaration, but he may give in evidence any justification or excuse of it, which’will defeat the plaintiff’s right of action. 1 Ch. Pl. 487; Bird vs. Randall, 3 Burr. 1365; Barber vs. Dixon, 1 Wils. 45; 2 Saund. 155, a. u. So in trover, under the general issue, the defendant may show any ground of defence, which proves that the conversion was lawful, or that trover was not maintainable. 2 Saund. Pl. and Ev. 872. '
The affidavit upon which the writ issued, and all other proceedings prior to the issuing of the writ, are made no part of the record by bill of exceptions, or otherwise. This being the case, the plaintiffs have failed to show to this court either that the writ was illegally issued, or irregularly served. We are bound to presume in favor of the decision of the court below, until the contrary is made affirmatively to appear. Again the second and third counts do not allege that the writ of-attachment was either improvidently or illegally issued, and therefore under these counts, the illegality of the proceedings of the Justice of the Peace cannot be questioned or put in issue.
The liability of the defendants, if it exists at all, under the second and third counts, arises from their laches or negligence, in keeping the property levied upon. If the writ of attachment is competent evidence in the case for any purpose whatsoever, of course the defendants below had a right to read it to the jury. The plaintiffs recited and set out in the second count of their declaration, the affidavit upon which the attachment issued, the writ itself, and also the levy and return of the Sheriff. Having referred to these papers, or made these recitals, was it not lawful for the defendants to introduce the writ of attachment as evidence upon the trial?
The plaintiff having voluntarily, by their own act, made the writ a part of their declaration, they have certainly no right to object to its going in evidence to the jury. The defendants, by its introduction,, only prove what the plaintiffs had alleged. If the Sheriff, as the plaintifis have declared, acted under authority, and by virtue of the of the writ, at the instigation and direction of the defendants, he surely acted under color of the-law, and consequently, the writ furnished a good excuse, if not a complete justification to the defendants. The writ itself recited the affidavit upon which it was founded, and was'issued by an acting Justice of the Peace; and this being neither controverted nor denied, but expressly admitted and insisted on in the second count of the declaration, the presumption obtains that it was properly issued and regularly executed, and consequently legitimate proof in the case. The recital of the affidavit in the writ may be regarded as part and parce! of the writ; and as that recital is not inconsistent with the provisions of the statute, authorizing such a proceeding, the legal conclusion is irresistible that the defendants in error laid a proper foundation for the attachment, aud that the Justice of the Peace acted correctly in issuing the writ, and directing it to the Sheriff.
This brings us to the consideration of the only remaining question, which is, had the Justice of the Peace lawful power and authority to issue the writ, returnable to the Circuit Court, or were all his acts and proceedings therein illegal and extra-judicial. This latter proposition has been argued with much earnestness, and very considerable ability and learning by the plaintiffs’ counsel; which has induced us to give to this branch of the subject the most mature reflection and investigation. The result of our enquiries will now be stated. There being no proof in the record that either the Sheriff or the defendants were guilty of any laches or negligence in keeping the property after the levy, or while it was in custody of the law, their liability, if it exists at all, must depend wholly and exclusively upon the illegality of the proceedings before the Justice of the Peace. Under the count in trover, they may be so charged, provided the facts show a tortious taking and conversion of the property; In form the action of trover is a fiction; but in substance it is a remedy to recover the value of a personal chattel wrongfully converted by the defendant. The injury líes in the conversion, and that constitutes the gist of the action. In order to support the action two things are necessary for the plaintiff to prove: First, property in himself, either general or special; and second, a wrongful conversion by the defendant. The conversion may be proved by a wrongful taking, or by an illegal assumption of ownership, or by an unwarrantable detention. In the present instance, if the plaintiffs had showed a tortious taking of the property by an unlawful levy, then they had established a conversion, and the action would lie. I Ch. Pl. 148, 149, 153; 3 Black. Com., 161, 162, 163; Rackham vs. Jessup, 3 Wils. 332; Cooper vs. Chitty, 1 Burr. 20; 2 Saund. R. 47 a, n. 1.
The proceedings were commenced and prosecuted under an act of the General Assembly of the Territory of Arkansas, approved October, 22, 1823. The 29th section of the act declares that “ in all cases where any person has any debt or demand against any other person in this Territory, and he shall have good cause to believe that said debtor has removed or is about to remove himself or effects out of this Territory, it shall be lawful for such creditor, in all cases where the demand shall exceed the sum of fifty dollars, to apply to some Justice of the Peace for the county where the debtor resides, and to file his affidavit in writing, stating that the person (naming him) is indebted to him in a sum exceeding fifty dollars, and that he has good cause to believe that the said defendant is not a resident of or residing in this Territory, or that he is about to remove himself and effects without this Territory, (as the case may be,) so that the ordinary process of law cannot be served on him, and he, the said plaintiff is thereby in danger of losing his said debt; whereupon, it shall be the duty of said Justice to issue a writ of attachment, returnable to the next Circuit Court for the county in which he resides, commanding the Sheriff or Constable of his township to attach the said defendant, by all and singular his lands and tenements, goods, chattels, moneys, credits, and effects, as is provided in the first section of an act entitled “ an act to provide a method of proceeding against absent and absconding debtors.” A Justice of the Peace certainly possessed the power under and by virtue of this section to issue a writ of attachment returnable to the Circuit Court, provided there is nothing in the •organic law, or any subsequent Territorial act forbidding it.
The act of Congress organizing the Territorial Judiciary, vests its power -in a Superior Court, and in such inferior courts as the Legisla latiire may from time to time institute and establish, and in Justices oft he Peace. The act, in defining and limiting the original and appellate jurisdiction of the Superior Court, contains no limitation or restriction upon the legislative power in regard to establishing inferior tribunals, or in prescribing the duties of its officers, in the exercise of this discretion full liberty is given the Legislature to organize the inferior courts in any manner they may deem advisable for the public good: provided in doing so, they do not interfere with the original or appellate jurisdiction of the Superior Court. This being the case, the legislature possessed ample power to give to a Justice of the Peace authority to issue a writ of. attachment, and make it returnable before the Circuit Court, in such manner and under such regulations as they might think proper to prescribe. There is no-prior or subsequent act of the Territorial government repealing the 29th section of the statute above recited; and, therefore, this court does not take upon itself to determine whether the issuing of the writ is a judicial or ministerial act. For by the organic law, and under the Territorial Government, a Justice of the Peace was competent to perform either or both acts, at , one and the same time, or at different times.
The question then recurs, what is the true meaning and construction of the 29th section of the act regulating the proceedings in case of attachments? The terms and provisions of the act are somewhat confused and contradictory; but ils meaning and objects are readily discoverable from the evils intended to be remedied, and the means employed for that purpose. A Justice of the Peace has no authority to issue the writ unless the party applying for it brings himself wfilhin the provisions of the act. What, then, is the affidavit required to state? Simply that the defendant is indebted to the plaintiff in a given sum, which is above fifty dollars, and “ that he has good cause to believe the defendant is a non-resident of, or about to remove himself or effects without the Territory, so that the ordinary process of the law cannot reach him, whereby the plaintiff is in danger of losing his debt.” The writ lay, then, against resident or non-resident debtors; or against such persons as were endeavoring to remove themselves and effects beyond the jurisdiction of the Territory; and upon any demand, liquidated or unliquidated, that exceeded fifty dollars. The Justice of the Peace is bound to issue his writ in the county where the defendant’s property can be found, and the writ is made returnable to the Circuit Court. It was intended to secure to creditors the payment of their debts, in all cases where their debtors attempted to remove themselves or effects beyond the jurisdiction of the court, or limits of the Territory. The act is evidently remedial in its nature and character, and therefore must be construed liberally to prevent the mischief for which it was enacted. This principle will be found folly sustained and illustrated in many of the adjudications upon the issuing of writs of attachment under statutes similar to our own. Fisher vs. Consequa, 2 Wash. C. C. R. 382; Lenox, and another, vs. Howland, and another, 3 Caines R. 257 and 323; Sergeant upon Attachments, 286. If this principle be true, then a writ of attachment would lie under the act of 22d October, 1823, as well upon an unliquidated as a liquidated demand. The words of the statute are, “if. any person is indebted to another in a sum exceeding fifty dollars.” What is the meaning of the term indebted? Is it confined to a debt or demand certain? Or does it include damages arising from a breach of contract that may be rendered certain? The term is certainly general in its meaning an'd in its application, and is certainly synonimous with owing. To give it any other construction, would certainly not prevent the mischief, or advance the remedy given by the statute. The statute being remedial, embraces all cases where, upon any claim or demand, one person is indebted to another in a sum exceeding fifty dollars. The affidavit is the foundation of the Justice’s authority to issue the writ.
To put any other construction upon the act, would be to authorise non-resident or absconding debtors to withdraw their means or effects beyond any legal process whatsoever. The idea that a creditor and debtor must both have been residents of the Territory before an attachment could issue, is wholly untenable. It is expressly contradicted by the words of the act itself, and it is alike forbidden, as well by all true rules of construction upon remedial statutes, as by its spirit and intention.
The mischief intended to be prevented certainly would not be remedied if a non-resident or absconding debtor was allowed, by such. an interpretation, to defeat the just claims or demands of a resident or non-resident creditor. In the case now before the court, so far as the writ of attachment recites the facts of (he affidavit upon which it is founded, they are in strict conformity with the regulations of the statute, and almost a literal copy of the act. The Justice of the Peace was then fully authorized to issue the writ, and as the officer acted in obedience to its commands, he was strictly justifiable in making the levy.
■ If the view we have taken of this subject be correct, then the Territorial Legislature, as well as the Justice of the Peace, acted strictly within the pale of their organic and legal duties, and of course the defendants in the action could not be liable in trover as for a tortious conversion of the property by an unlawful levy, under the first count in the declaration. The judgment of the court below must therefore be affirmed with costs. | [
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Lacy, Judge,
delivered the opinion of the Court:
Before we proceed to examine and determine the questions of law and of evidence that are raised on the assignment of errors, it becomes necessary to slate such parts and so much of the testimony, as is applicable to the case now under consideration.
A short time previous to the first day of March, A. D. 1838, Jesse Noaks, the plaintiff in the action, whom the proof shows is a tanner by trade, represented himself as the lawfully constituted agent of Thomas B. Ballard, for the purpose of purchasing raw hides from one Seborn Hill. Thereupon, Hill sold and delivered to him a quantity of raw hides, amounting to two hundred and eighty dollars and eighty cents, for which Noaks executed and passed Ballard’s receipt to Hill. As soon as Ballard was informed of the purchase, he disclaimed the contract, and denied the agency of Noaks. Thereupon? Seborn Hill deputed John Hill as his agent, to demand of Noaks payment for the hides, and if he could not get the purchase money for them,- to take back the hides. Noaks had the hides in tan when John Hill applied for payment for them. Noaks refused payment, but offered to give back part of the hides, which Hill at that time refused to accept. The day after this happened, John Hill, in company with Ballard and Bryan, went to Noaks’ tanyard, and it was then and there agreed between Noaks and John Hill, that each of them should .choose one disinterested person, and value the hides in tan, which Noaks had purchased of Seborn Hill. Upon this agreement being „ entered into, John Hill, with the assistance of Mitchell, and Bryan, and Noaks’ son, and by the express permission and consent of Noaks, commenced drawing the hides from tan, and separating them from the leather of other persons which Noaks also had in tan. Noaks pointed out to them the tan-vats that contained the hides he had got from Sebón Hill, and he gave them the description and marks by which they could be known. He then left the tanyard to get some person to come and value the leather, but before going away he requested the defendants not to draw his leather from any other vats except those he had shown them, as they contained all the hides he had purchased from Seborn Hill. Noaks did not return until the next day; and on reaching the tanyard he discovered other vats had been examined besides those he had pointed out, although the defendants had not taken any hides belonging to his customers, but only those that answered the description given by Noaks, and which was claimed as the property of Seborn Hill. Noaks thereupon became angry, and ordered John Hill, Mitchell, and Bryan, to desist from drawing any more hides from tan, which they accordingly did. A quarrel then ensued between John Hill and Noaks, in regard to the valuation of the leather, the latter insisting to have it valued, and the former objecting to it, on the ground that the hides were the properly of Seborn HiiL Upon Noaks using reproachful words in regard to Ballard, the latter picked up a limehook, and made towards Noaks, who put his hands into his pockets as if he intended to draw a weapon, but he did not draw. Thereupon Hill drew a pistol and Bowie-knife, but immediately concealed them, and Noaks then retreated into his house, and Thomasin said that if he came out with a pistol he would split his head open. Mitchell stopped Ballard as he advanced on Noaks, and there was no wound given .or battery committed. After the altercation and affray had subsided, the defendants, Hill, Mitchell, and Bryan, loaded Ballard’s wagon with two hundred and eighty sides of leather, which they had drawn from tan, and the wagon containing them was drove off, under the directions of John Hill. After taking that amount from the hides purchased of Seborn Hill, there was still left in the possession of Noaks seventy-eight sides of leather, which he valued at two hundred and fifty dollars. It was then agreed between John Hill and the plaintiff in the action, that John Hill, as the agent of Seborn Hill, should have all the leather that had been put in the wagon and carried away, and that Noaks should retain all the leather in his possession, 'in full satisfaction for the injury he had •received. It was further stipulated between the parties, that Ballard’s receipt should be taken up and delivered to Noaks, and he expressly agreed to look to defendants, Thomasin and Bryan, to take , up the receipt and deliver it, which they promised to do.' There was no time fixed when the receipt was to be delivered. The proof shows that Thomasin and Bryan did procure the receipt of Ballard from Seborn Hill, and that they did, on the 6th day of April, 1838, offer to deliver the same, which Noaks refused to accept. The record then shows that Noaks admitted the leather to be property, of Seborn Hill, both before and after the trespass complained of was committed. This constituted the substance of the proof adduced upon the trial.
The assignment of errors questions the correctness of the opinion and judgment of the Circuit Court, first in refusing to permit the jury to retire, and find first as to Daniel Thomasin, one of the co-defendants; secondly, in the instructions given and. refused to the jury; and lastly, in overruling the motion of the defendants below for a new trial.
It isa well settled principle of practice supported by all the authorities on the point, that a party to the record in general cannot be examined as a witness in the case. This is a technical rule, founded partly on considerations of public policy, to prevent perjury, but, mainly upon the real or supposed interest that the party to the record is presumed to have. Parties to the record are the suitors in court, and they are presumed to have a- direct immediate interest in the subject matter in dispute. To prevent them, then, to testify in the cause, would be to make them witnessess for or against themselves, which the law never allows; as long as their interest is supposed to exist, their incompetency continues. The' moment their interest is ^ presumed to have terminated, the objection to their competency ceases, and their right to testify is restored. A co-trespasser or tortfeasor is not in general a competent witness on either side. He cannot be called as a witness for the plaintiffs, for so it was expressly ruled by Lord Kenyon, in Barnard v. Dawson, decided at Guildhall sitting, 1796, and in Chapman v. Graves and others, 3. Camp. N. P. 333. The learned judge who tried the cause, remarked, that a joint trespasser who had suffered judgment to go against him by default, was not a competent witness for the plaintiffs. The rule holds good in criminal as well as civil cases, and a party who is put on trial at the same time with other co-defendants, cannot he used as a witness until he has been first acquitted or convicted. A verdict in his case restores his competency, provided it does not render him infamous, and when he has been either acquitted or convicted, he can then be called as a witness.
His interest in legal contemplation is no longer presumed to exist or to operate on his mind, where there is a finding in his case, and therefore his competency as a witness is revived and exists in full force, But to entitle him to the privilege of a verdict first in his own case, when he has been put on his trial at the same time with the other defendant, it must appear satisfactory to the court that tries the cause, that no verdict has been adduced against him, and that his testimony is important for the other co- defendants. This privilege is given on the express condition that there has been no proof offered against him, tending to prove the charge laid; for if there are any facts or circumstances proved on ¡he trial going to establish bis guilt, though they may not be sufficient to convict him, still he has no right to have his case put to the jury, and afterwards to come in and testify as a witness for the other defendants. When the plaintiff has closed his testimony, and has wholly failed to adduce any evidence against one of several joint defendants, it unquestionably becomes the duty of the court who tries the cause, to permit the jury to retire and find a verdict of acquittal first as to the defendants against whom no proof has been offered, provided the other co-trespassers wish to use him as a witness, and show by affidavit or otherwise the materiality of his statement in their defence. Not to allow other co-defendants the full benefit of this principle, would be to put it completely in the power of the plaintiff, at his mere option, to exclude the whole of their defence, by making all the witnesses joint trespassers in the same action, or including them all in the same indictment. The plaintiff has the undoubted right of including in his charge as many persons as he may think proper, for the right itself is an invaluable one when legitimately exercised, and is often found in practice indispensably necessary for the due administration of private as well of public j ustice. If, however, either through mistake or by design, it is attempted to be exercised unjustly or expressly, then the court who tries the cause is invested with ample discretionary authority to permit the jury to bring in first a verdict of acquital as to the defendant against whom there has been no evidence offered, so that his testimony may be used for the rest of his co-defendants; and should the court, in the exercise of their discretionary power, commit a clear and palpable error or mistake, seriously prejudicing the right of the other co-defendants, then it is quite obvious the judgment below, if excepted to, could be reached by appeal or upon error. But then it must appear there was no evidence whatever offered against the de fendant, whose testimony was attempted to be used on the trial. These positions are clearly supported by all the authorities upon the subject, as a reference to them will demonstrate. 2d Starkie's evidence 763, 4, 5, 6,7, 8, and cases there cited; Man v. Ward, 2d Atk. 229; The King v. Ellis and others, McNally 55; The People v. Bill, 10 J. R. 95; Barney v. Cutlar, 1st Root 489; Brown at al. v. Howard, 14 J. R. 1191. The application of these principles to thé case now under consideration, unquestionably prove that the court below committed no error in refusing to permit the jury to retire and bring in a verdict first of acquittal as to Daniel Thomasin, one of the defendants. He was put on his trial at the same time with the other co-defendants, and was charged as a joint trespasser with them. The evidence may not have been sufficient, when taken altogether, to have convicted him, and so the jury rendering their verdict determined; but that does not show there was no proof offered against him, tending to establish the trespasses alleged to have been committed. The record clearly demonstrates that there were facts or circumstances proved on the trial, going to establish bis guilt, and that, too, of no slight or doubtful character. The defendant Thomasin was present during the whole of the altercation and assault, and appears by words and enqouragement to have participated in the transaction; for upon the plaintiff retreating into his house, Thomasin said that if he came out with a pistol he would split his head open. This declaration showed his intention to be hostile, and that he participated in the acts, and entered into the feelings of the other co-trespassers. Then there was certainly some proof offered against him; and that being the case, it necessarily follows, the court below decided correctly in refusing to permit the jury to retire, and find first as to the defendant Thomasin. His co-defendants were not entitled to the benefit of his testimony, unless the plaintiff failed to adduce any proof against him. There was evidence adduced against him, and therefore the objection to the. opinion of the court below on this point is not well taken.
The plaintiff in error filed the affidavit of Thomas B. Ballard and James Mitchell, two of the co-trespassers, in support of their motion for a new trial, on the ground of surprise and newly discovered evidence since the determination of the trial. But the motion for the new trial can receive no additional support from the affidavit, for it wholly fails to state any clear facts or circumstances showing that the defendants below were surprised on the trial, or that they used due diligence. The affidavit is therefore essentially defective, for it does not contain a single one of the essential requisites laid down in the case of Burris v. Wise and Hind, decided during the present term of this court.
In regard to the second question presented by the assignment of errors, it is evident that the court below erred in instructing the jury that if they believed from the evidence, that the defendant in the action entered first upon the plaintiff’s premises by permission and consent, but afterwards committed any unlawful act, they were to be considered as trespassers ab initio, and punished accordingly. Blackstone says, 2d Chitty’s edition, page 210, “ every unwarrantable entry upon a man’s soil, the law entitles a trespass, by breaking his close.” In the eye of the law, every man’s land is set apart from bis neighbor’s, by real or imaginary lines, and every unlawful entry upon it, carries with it some actual or supposed injury to the premises. 7 East 207; 2 Strange 1004; 1 Burr. 133. One man may lawfully enter upon the premises of another by public license or authority of law, or by the private permission and consent of the owner or occupier of the soil. If he enters by either of these ways, he cannot be treated as a trespasser, for his entry is lawful, being given him by authority of law, or by the permission of a private person.
When a party enters by a public license, or by authority of law, and afterwards, in the prosecution of his designs, commits any unwarrantable act, the law regards him as a trespasser, ab initio, and holds him fully answerable for all the injury committed; to that extent not only, he is liable for the unlawfulness of the particular act done, but for his original unwarrantable entry. For when the law grants a general or special license to. enter, it gives it conditionally, that it will be only used for that purpose alone; and should it be used improperly, or in violation of the authority given, the law adjudges the party who thus abuses its license, a trespasser ab initio, and punishes him accordingly, because his subsequent acts show his disposition to have been evil from the beginning, and therefore make his original entry unlawful. This principle proceeded upon the ground of public policy; the law is too sacred and important an office, to allow a private person to violate either its express or implied guaranty, without holding him directly responsible for all the remote as well as immediate damages that have accrued, in consequence of any unlawful act he may have committed. But this doctrine does not hold good where the parly enters by the consent or permission of a private person; the reason of Ihe rule no longer exists, and of course the rule itself ceases. When a party enters upon the premises of a private person, either by his express or implied consent and permission, and afterwards commits any unlawful act, he is only amenable for his sub» sequent unwarrantable conduct, and for nothing more. If he enters by the consent of a private person, his original entry being lawful, cannot afterwards be made unlawful by any subsequent illegal act; the law does not declare his intention evil from the beginning, or from his original entry, but from the time he committed the first un» warrantable act; as he has transgressed no public license given by law, but only entered with the permission of a private person, his intentions are regarded as innocent and harmless up to the time of the first trespass committed, and he is liable to be punished for all his subsequent illegal acts, and for nothing more. This distinction between the two classes of cases, although it may be said to be subtle and re. fined, nevertheless it exists in reason and sound policy, and is distinctly and broadly laid down by all the authorities upon the subject, 2d Starkie’s evidence 445; Gardner v. Campbell, 15 Johnson Rep. 401; 4 Day 257.
If the position be well established, and of that we think there can be no doubt, then it necessarily follows that the Circuit Court erred in charging the jury. If they believed from the evidence that the defendant below entered upon the plaintiff’s premises by permission and consent, but afterwards committed any unlawful act, they are to be regarded and held as trespassers ah initio. It is clear that the consent or permission given to enter on the premises in the present in. stance was that of a private person, and not a general or special license or authority of law, and of course the instruction to the jury on this point was evidently erroneous and illegal; the record shows they were important, and probably influenced to a considerable extent the finding of the jury; and that being the case, it furnished a good cause for a new trial; and so it has been often decided in this court. We might here close our inquiries, by reversing the judgment and opinion of the Circuit Court upon this point; but while we have the record before us, we deem it proper to lay down the doctrine in regard to what constitutes a good bar to the plaintiff’s right of action, under the plea of accord and satisfaction, which in effect which in effect is specially pleaded in this case. Accord is a satisfaction or agreement between the party injuring and a parly injured, which performed, is a bar to all actions on that account. “ For example, if the party injured accepts a sum of money or other valuable thing, then that constitutes a redress of the injury, and the right of action is then entirely taken away.” 2 Chilly's Blackstone 16; Com. Digest, title Accord; 2d Starkie's evidence 26; Paramore v. Johnson, 1 Ld. Raym. 566; 12 Mod. 376. Consent of a party to accept in satisfaction, without actually receiving it, does not form a valid bar to the action. The accord must be shown to be accccpted in satisfaction of the thing demanded; and although that satisfaction may have been agreed upon, still it will be no valid bar to the action, unless it be actually received, and operate in full satisfaction. The satisfaction, as well as the accord, must be reasonable, sudden, and complete. In general, the accord and satisfaction should be executed, not an executory contract. Should it, however, be executory, then, in order to make it obligatory, the terms or the conditions of the agreement must be strictly performed. We do not think it incumbent upon us to determine the question, whether an accord with a tender of satisfaction, and a refusal to accept the satisfaction agreeably to the terms of the contract by the plaintiffs, constitute a good bar and destroy the right of action. That point is not necessarily involved by the pleadings and proof in the cause now before us, and therefore we express no opinion upon it. The accord and satisfaction which was in effect specially pleaded in the case, consist of the agreement made and executed between John Hill, one of the defendants, and the plaintiff in the action. That.agreement was an executed, and not an executory contract, as the evidence in the case conclusively demonstrates. The contract was entered into and carried into effect after the trespass complained of was perpetrated; and the satisfaction rendered by the defendant, and which was actually accepted by the plaintiff, operated as a complete, full, and executed satisfaction of all his right of action, not only on account of one, but of all the defendants. An accord and satisfaction made and executed by one of several joint defendants for a tort or other injury, extinguishes the plaintiff’s right of action, not only as to him, but as to his other co-defendants. The whole doctrine in regard to what constitutes a sufficient accord and satisfaction, will be found fully illustrated and explained by the annexed authorities. 2 Starkie on Evidence 26; Paramore v. Johnson, 1 Ld. Raym. 566; 12 Mod. 376; 2 Chitty’s Blackstone; Com. Digest, title Accord, 3 Co. 17; 5 T. R. 141; Fitch v. Sutton, 5 East 230; Dufresne v. Hutchinson, 3 Taunt. 117; Lynn v. Bruce, 2 H. B. 317; Heathcote v. Crookshanks, 2 T. R. 24.
The instruction of the court below, in regard to the plea of accord and satisfaction, is somewhat vague and inconclusive, and not very well calculated to lead the mind of the jury to a correct conclusion.
The court seemed to have proceeded upon the ground, that the accord and satisfaction pleaded and proved on the trial, was conditional and executory, and was not obligatory upon the plaintiff, because he had refused to accept Ballard’s receipt, which Bryan and Thomasin promised to get from Seborn Hill, and deliver to him. This agreement with Bryan and Thomasin, in regard to the delivery of Ballard’s receipt, did not enter into or form any part of the contract with John Hill, one of the defendants. It was this latter agreement that constituted the accord and actual satisfaction given and received, and which in itself is wholly disconnected and separated from' the promise of Bryan and Thomasin, to deliver Ballard’s receipt. That promise or agreement as to Bryan, was a mere nudum pactum; and as Thomasin, who is shown to be one of the defendants, if he is liable at all, (which, by the bye, is exceedingly questionable), why, then the plaintiff should have his action against him for a violation of the contract. But the evidence clearly proves, if Thomasin should be considered liable in the first instance for the delivery of the receipt, he completely discharged himself from all liability on that account. There was no precise time fixed when, the receipt was to be delivered, and as Thomasin procured it and tendered it to the plaintiff within a reasonable lime, which he refused to accept, he thereby released himself from all further responsibility. The agreement of Thomasin with the plaintiff was a wholly different and distinct matter from the accord and satisfaction entered into and executed between himself and Hill. The plaintiff not only agreed to take, but actually did secure from John Hill, as the agent of Seborn Hill, seventy-eight sides of leather, equal in point of value to two hundred and fifty dollars, as indemnity and redress for the trespasses committed. This remedy and redress constituted an actual satisfaction, and took away the plaintiff’s right of action against all the defendants. There is no contradiction or discrepancy in the proof in regard to the accord and satisfaction established by all the witnesses. The plaintiff then having no right of action against any one of the defendants, it is perfectly evident that the verdict was expressly contrary (o' law and evidence; and if there was no other testimony adduced on the trial except what appears in the record, the court below ought, on the defendant’s motion, for that cause alone, to have granted him a new trial. But the record fails to state that no other evidence was offered or received on the trial, and that being the case, the presumption is, other testimony might have been adduced which authorized the verdict. Owing to the imperfections of the record, which is cured by the presumption in its favor, we would not feel ourselves justified for this error alone, to reverse the judgment of the court below. But we have already shown that the Circuit Court that tried the case, erred in a material point in the instructions given to the jury; and therefore its decision and judgment must be reversed and set . aside, with costs, a new trial awarded, and the cause remanded, to be proceeded in agreeably to the opinion here delivered. | [
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Lacy, Judge,
delivered the opinon of the-court:
There have been several distinct propositions raised by the assignment of errors and discussed at the bar that we do not feel ourselves called on at this time to determine. The main question in this cause is, did the court below rightfully exercise jurisdiction in the premises!
Before we proceed to settle this point, if may be well to define the meaning of the writ of certiorari, according to the English practice, and also to state a few of the most prominent uses to which it was applied. Lord Bacon defined it to be, “ an original writ issuing out of Chancery, or the King’s Bench, directed in the King’s name to the Judges or officers of the inferior courts, commanding them to return the record pending before them — to the end that the party may have more sure and speedy justice, before him or such other Justices as he shall assign to determine the cause.” One of its uses was, to bring into the court of King’s Bench the record of conviction in criminal matters before inferior courts or tribunals. Another of its uses was, where a party was sued in an inferior court to transfer his cause into one of the King’s courts for trial. In this way the writ issued, as well from the Common Pleas, as from the King’s Bench. Again, it is extensively used as a remedy in the nature of a writ of error in civil cases; and when that is the case, it generally issued from the court of Kings Bench. When an inferior tribunal proceeds in a cause contrary to the course of the Common Law, then the writ lay to correct the error, if any had accrued. If the court below exceeded its jurisdiction, the Supreme Court would quash the procedings for irregularity; but when, upon inquiry, they were found to be regular, the judgment below was affirmed. De Groenvelt vs. Dr. Burwell, et al., 1 L. Ray. 469; 1 Salk. 144; Comm. vs. Ellis, 11 Mass. R. 465; Edgar vs. Dodge, 4 Mass. 667; Van Dusen vs. Comstock, 3 Mass. 184; Cross vs. Smith, 3 Salk. 79; 2 L. Ray. 836. Another ground-upon which the writ often issued, was, to draw to the court of King’s Bench jurisdiction over cases which by law properly belonged- to it. And it is mainly upon this latter ground that the power of the Circuit-Court to issue the writ in question is now claimed.
It will be seen, from the definition of the writ, and from the uses to-which it was principally applied, that it was-, generally, if not univer¿ sally, directed to judicial officers in the exercise of judicial powers- or authority. It is clear that the Auditor of Public Accounts is not a judicial officer. Nor can he exercise judicial power or authority. For the Constitution vests the whole judicial power of the State in' the Supreme Court, in Circuit Courts, in County Courts, Probate Courts, and in Justices of the Peace. (See Art. 6, Sec. 1, Con. Ark.} Whether or not the Auditor of Public Accounts, in the present instance, has assumed to- exercise judicial power or not, we do not deem' it necessary to inquire in this investigation. We have already had1 occasion to analyze and determine the powers and jurisdiction of the several judicial tribunals, as ordained and established- by the Constitution. The general doctrine upon that subject will be found fully explained and illustrated in the case of The State vs. Ashley, and' others, on a motion for an information in the nature of a quo- warranto, in Linton vs. Berry, and in Fisher vs. Hall and Childress, and Heilman vs. Martin. The court in delivering the opinion in the case first referred to, says, “ in directing the organization of the judicial”' department, it was the object of the convention to- provide for the whole people of the State, through the several judicial tribunals, a free, ample, speedy, cheap and convenient administration of justice. For which purpose various tribunals, of different grades, were ordained and ordained by the Constitution, and one or more of them established in every township and county in the State; and a jurisdiction was conferred upon each by the Constitution, corresponding in- interest and magnitude with their respective grade and dignity; and in such manner, that the whole judicial power of the government became vested in some one or other of these courts.” The principle of a separate and distinct jurisdiction pervades and runs through our whole judicial system; and the Constitution has preserved one unbroken and harmonious chain of action through the entire plan. Each separate tribunal is left free in the exercise of its lawful and constitutional authority, and its subordinate parts are only restrained by a superior jurisdiction whenever they transcend the limits of the grant which created them. To assume for any one of these tribunals a jurisdiction greater or less than is conferred by the Constitution, is not only virtually to abrogate and destroy all the distinctions and divisions of separate constitutional jurisdiction between the several respective courts, but it is, in effect, to ordain and establish a wholly different will or rule of action from the one laid down by the convention. The Supreme Court has appellate jurisdiction only, except in cases otherwise provided for by the Constitution. The Circuit Courts have original jurisdiction in all criminal cases not otherwise provided for by law; and exclusive original jurisdiction of all crimes, amounting to felony, at common law; and original jurisdiction in all civil cases which are not cognizable before Justices of the Peace, until otherwise directed by the General Assembly; and original jurisdiction in all matters of contract, where the sum in controversy is over one hundred dollars. The Constitution then declares that, “ the State shall be divided into convenient circuits, each to consist of not less than five, nor more than seven counties, contiguous to other; for each of which a Judge shall be elected, who, during his continuance in office, shall reside, and be a conservator of the peace within the circuit for which he shall have been elected:” and, “ that the Circuit Courts shall exercise a superintending control over the County Courts, and over Justices of the Peace, in each county in their respective circuits; and shall have power to issue all the necessary writs to carry into effect their general and specific powers.” (Sec. 4 and 5 of Art. 6.) “ The Judges of the Circuit Courts may temporarily exchange circuits or hold courts for each other, under such regulations as may be prescribed by law:” and when that is the case each officer must pro tanto be considered Judge of the particular circuit, for the time being, in which and for which he is acting. Art. 5, Sec. 12, of the Cons.
The foregoing clauses of the Constitution have distributed the State into a given number of separate and independent circuits, and they have required and authorized a Judge to be elected and commissioned for each of those circuits, whose power and authority are restricted and limited to the prescribed and ascertained boundaries of his particular district. And the Constitution has, furthermore, established a Circuit Court in each county of the State, and it has fixed and confined its territoritorial jurisdiction within the boundaries thereof; and to the circumferen ce and extent of those limits each Circuit Court has a superintending power and control over County Courts and Justices of the Peace; and is clothed with ample authority to issue all the necessary writs to carry into effect its general and specified powers. But no writ or process, according to the principles of the common law, can run or be executed beyond the limits of the territorial jurisdiction_of the court out of which it issues. It is, then, clearly manifest, as there is a circuit court established for each county in the State, that the court of one county cannot run its writs or process within the boundaries or limits of another county, without some legislative provision upon the subject. What class of cases, and for what purposes, the legislature may authorize the Circuit Court of one county to run its writs of process, and have the same executed within the boundaries or limits of another, or of different counties, is a question of some nicety, and we do not take upon ourselves now to determine, as that point is not expressly or legitimately before us. In the present instance, as there is no legislative enactment authorizing the Circuit Court of Chi-cot county, or the Judge thereof in vacation, to issue the writ in this case to the Auditor of Public Accounts, and as the writ has been run into and executed upon him in the county of Pulaski, we are clearly of the opinion that it has been illegally and improvidently issued; and therefore null and void. Having disposed of this branch of the case, we will next inquire how and in what manner the State can be sued. The Constitution declares “ that the Legislature shall, by a vote of both Houses, elect an Auditor of Public Accounts:” and requires him to “ keep his office at the seat of government, and to perform such duties as may be imposed on him by law.” Art. 5, Sec. 21, of the Cons. It also gives to the General Assembly “ the power to prescribe bylaw in what court, and in what manner, suit shall be commenced and prosecuted against the State.” Art. 5, Sec. 22.
In obedience to this injunction, the Legislature have declared that *{ all actions against the St-ate shall be brought in the Circuit Court of the county in which the seat of government is situated, and be against the State by name.” “ The process, in all actions against the State, shall be a summons, and shall be executed by the officer to whom it may be directed by delivering a copy thereof to the Auditor of Public Accounts.” Rev. Stat., C. 416, S. I and 2.
The statute gives to the party injured authority to sue the State by name, and it makes it the duty of the Auditor to appear and defend the.action whenever process is served upon him; and it expressly declares that, when a suit is instituted against the State, “ it shall be brought in the Circuit Court of the county in which the seat of government is situate.” A sovereign state or government is incapable of being'sued without some legislative provision authorizing such a proceeding; and the statute must be strictly followed.
This court is bound, judicially, to know that the Auditor of Public Accounts keeps his office at the seat of government in the city of Little Rock; consequently, he is beyond the reach of the jurisdiction of any suit brought in the Chicot Circuit' Court, or the order of the Judge of that circuit. The present proceeding can be considered in no other light than a suit, to all intents and purposes, instituted against the State. The proceedings possess all the constituent parts of a suit; the actus reus et judex; and it is certainly a suit against the State, for the appellees do not seek to make the Auditor personally responsible, but merely to release themselves from a liability as securities on the official bond of the sheriff, which the State holds against them. We have already shown such a suit can only be brought and prosecuted in the Circuit Court of the county in which the seat of government is situated, or in some other court having cognizance in such case over the subject matter in dispute, and whose jurisdiction is .co-extensive with the limits of the State. If this position be true, and it seems to us not to admit of a doubt, then it necessarily follows, be cause Chicot Circuit Court is not the county in which the seat of government is situated, the Judge thereof had no lawful power or authority to award the writ of certiorari directed to the Auditor of Public Accounts, and thereby take cognizance of the cause and proceed to adjudicate the matter. This being the case, of course all his acts, and those of the Chicot Circuit Court, were wholly extra-judicial. The judgment of the court below must therefore be reversed, with costs; and the cause remanded, to be proceeded in agreeably to this opinion here delivered, which is, that the writ of certiorari and supersedeas be dismissed, with costs, by said court for want of jurisdiction to award the same. | [
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Ringo, Chief Justice,
delivered the opinion of the Court:
The tax in question appears to have been assessed and charged against the plaintiffs as the joint keepers of two billiard tables, as upon the privilege of keeping them by the authority and under the provisions of the 5th section of the 128th chapter of the Revised Statutes of this State, page 674, which enacts that “ there shall be levied and collected as a State tax the sum of five hundred dollars on the keeper of every billiard table in this State, and the like sum on every keeper of a nine-pin alley, for the period of six months, and at the same rate for a shorter time, and no person shall have or use any billiard table or nine-pin alley without first paying to the Sheriff the tax required by this act.”
The plaintiffs insist that the tax thus imposed upon the keeper of a billiard table is not warranted by the Constitution, and that the enactment above quoted is repugnant thereto and void, ,and if valid, cannot be enforced in the manner attempted against them.
In support of the former position they contend that a billiard table is in every point of view “ property,” which, under the provisions of the Constitution, every person has an indefeasible right of acquiring, possessing, and protecting, and that it catuanly be taxed according to ■its value; and in support of the latter they urge the impossibility of enforcing the enactment, because the manner of assessing and collecting the tax in question is no where prescribed by law.
No questions of more importance, or greater delicacy, than these have ever been presented to this court, or received a more patient and careful consideration, and to the mind of the court they present difficulties of no ordinary character. The right of the citizen to acquire, possess, and protect property, cannot be questioned, for it is expressly secured by the first section of the second article of the Constitution, which declares that “ all free men, when they form a social compact, are equal, and have certain and inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property and reputation, and of pursuing their own happiness.”
The term property has a most extensive signification, and according to its legal definition consists in the free use, enjoyment, and disposal “ by a person of all his acquisitions, without any control or diminution, save only by the laws of the land.” 1 Blackstoné’s Com. 138. Therefore, whatever a person acquires is his property, and according to the theory and practice of all governments, may be subjected to a tax, unless the right of taxation be restricted by some fundamental law to some particular species or descriptions of property; and subject to the like restriction, a greater or less amount of tax may be imposed ad valorem, or otherwise, according to the will of those to whom the taxing power is confined. In this State the Constitution ordains that “ all revenue shall be raised by taxation, to be fixed by law,” and that all property subject to taxation shall be taxed according to its value; that value to be ascertained in such manner as the General Assembly shall direct, making the same equal and uniform throughout the State. No one species of property from which a tax is collected shall be taxed higher than another species of property of equal value, provided “ the General Assembly shall have power to tax merchants, hawkers, pedlars, and privileges, in such manner as may from time to time be prescribed by law.” Const. Ark. title Revenue, S. 1 and 2. From this quotation it will be perceived that the Legislature is bound by the Constitution in fixing the State tax on property so to regulate it that every species or description of property subject to taxation shall, according to its value, pay an equal ratio or amount of revenue to the State; or, in other language, property shall be taxed according to its value, and the tax thereon shall be equal and uniform throughout the State. This rule, as to the State revenue, is indexible, and leaves with the Legislature no power to discriminate and fix upon one description or species of property a greater tax than that fixed by law upon every other description or species of property of equal value subjected to taxation. In this case, the power of the Legislature to impose a tax upon the billiard tables in question, equal to that imposed upon other property by law, has not been controverted by the plaintiffs, and is understood to be conceded by them. But they deny the power of the Legislature to prohibit them from possessing property without first paying a tax, not upon the property itself, but for the right to possess or keep it. We have already adverted to the legal definition of property, and, as we apprehend, shewn conclusively that every person in this State has a pure and indefeasible right to acquire, possess, and protect it, and that it cannot, as property, be subjected to,any other than an ad valorem tax.
And, if these positions be correct, it results therefrom, in our opinion, that the power to prohibit the acquisition and possession of property is unquestionably withdrawn from the Legislature: and the right of every citizen is in this respect perfect and plenary, and may be enjoyed without any other restraint than such as shall be necessary to the preservation of the individual rights of others, or the general welfare of the community. Thus every individual may lawfully acquire and possess any species or description of property, if such acquisition or possession does not destroy or deprive some other person of his property, or some enjoyment thereof, in which he is protected by law. But property when acquired and possessed must be so kept and disposed of as not to injure any paramount legal right' of another, or affect injuriously the public morals or public good, so far as they are, or may be, protected by law.
We are, therefore, of opinion that the Legislature may, by law, for the purposes aforesaid, regulate and restrict the use and keeping of property, but cannot prohibit altogether any person whatever from legally acquiring and possessing property generally, or any par-1 ticular species or description of property. Thus, for instance, they cannot prohibit any one from' making or purchasing a billiard table, because it is an article of property, and, under the Constitution, any one may lawfully acquire, possess, and protect it as such; but the Legislature may by law so regulate or restrict the use of such table as to prevent any injury to the public morals or public interest therefrom, in precisely the same manner that the use of other property generally may be regulated or restricted. The distinction being between a prohibition against the acquisition and possession or keeping of property and the imposition of burthens upon the property itself, or restrictions upon the use thereof; or between the total destruction of the right to acquire and possess property, and the regulation thereof in such manner as to prevent injury either to individual or public rights, and promote the public welfare. The former the Legislature is prohibited by the Constitution from doing, the latter that department is not restrained from acting upon “ according to its free will and sovereign pleasure.”
This court is therefore of the opinion that so much of the fifth section of the enactment of the Legislature above quoted as purports to prohibit every person from having á billiard table, without first paying to the Sheriff the tax mentioned in said enactment, is repugnant to the first section of the second article of the Constitution of this State, and therefore void. But it will be remarked that the tax in question does not purport to be a tax on the table as property, but simply on the plaintiffs as the keepers thereof, or upon the privilege of keeping them, and therefore the attorney for the State insists that it is within the proviso or exception above quoted, which expressly reserves to the General Assembly the power of taxing merchants, hawkers, pedlars, and privileges, in such manner as may from time to time be prescribed by law, because, as he contends, all persons are prohibited by law from having, or using, any billiard table, without first paying the tax imposed upon it by the statute, while every person upon paying such tax is authorized by law to keep and use such table, and therefore the law creates a privilege to be enjoyed only by such as pay the tax mentioned in the statute, which is clearly a tax upon this privilege, which the Legislature has competent power to impose. The plaintiffs deny that it it is within the legitimate power of the Legislature to create a privilege by first prohibiting the enjoyment of some right common to every citizen of the State, and then suffering such only as will pay a specified sum of money to the State, as a tax, the liberty Of enjoying such right. The proviso under consideration designates certain objects which form an exception to the general rule pres'cribed for raising revenue upon the basis of property, ad valorem, and may be subjected to taxation by law without regard to that principle, the power of the Legislature in respect thereto being expressly reserved propria vigore; consequently the Legislature may, in its discretion', enforce a tax of any amount upon either of the subjects mentioned in' the proviso, without any respect to the value thereof and regard to the equality and uniformity of the tax throughout the State. For instance, two merchants, each employing the same amount of capital at different places, or at the same place, may, without violating the constitutional rights of either, be taxed the one in a larger sum than the other. So, likewise, a clock pedlar may be taxed higher than a pedlar of jewelry, tinware, groceries, &c., or e converso, or the one may be be taxed and the other not, and the same privilege applies to hawkers and privileges as to all which the Legislature possesses the power of making such discriminations as that department shall determine to be proper. Because it is not only not withdrawn from, but expressly reserved to them, by this proviso in the Constitution. Yet they have not the power of absolutely prohibiting any person from becoming a merchant, hawker, or pedlar, until he shall have paid a tax as such, because it is parcel of the public liberty of every citizen to employ himself or his capital in such manner as he may choose, provided he does not invade the legal rights of another, or contravene the public policy of the community as regulated by law. Therefore, this right is indefeasible and secured by the Constitution to every citizen in common. Such, however, is not the case in this particular as regards privileges, for it is a primary and most essential principle of our Constitution and government, forming as it were the base upon which the whole superstructure rests, that every citizen is by nature endowed this with equal rights and equal privileges, consequently no individual in government does or ever can have or possess any privilege which is not common to every other citizen of the State, until it is created by law and acquired by him under the authority thereof, and in the manner therein designated; and surely no one indulges the supposition or entertains the opinion seriously that it was the design of the Convention to leave with the Legislature, to be exercised at will, the power of taxing every right enjoyed in common by the whole community, or of taxing them in any other manner, or by a different rule, from that prescribed in the Constitution; or that such power is insidiously reserved, concealed under the maslfof a special authority to tax privileges, inserted in the Coustitution by way of exception to the' general rule. If such should be the case the insertion of any general principle or rule to regulate the raising of revenue was superfluous, if not absurd, and therefore, in our opinion, such power was intended to be, and is, by the Constitution, withdrawn from the Legislature, and although that department has constitutionally the power of subjecting to taxation merchants, hawkers, pedlars, and privileges, by law, in such' manner as they shall think proper, such tax can only be imposed upon merchants, pedlars, and hawkers, who are actually engaged or concerned in the business of merchandizing, pedling, or hawking, and upon privileges created by law and legally existing at such time as the law imposing the tax directs it to be levied thereon.
Having thus stated the most important principles which we consider immediately applicable to the question presented by the case before us, the duty devolves upon us of considering and deciding whether the right of using a billiard table constitutes a privilege, within the meaning of the proviso of the Constitution, upon which a tax may be imposed. We have already expressed the opinion that a billiard table is property, and that the Legislature cannot prohibit a citizen from acquiring, possessing, and protecting such property, but that they can by law regulate or restrain the use of it, so that no injury, shall result therefrom to the public; and further, that a right common to every citizen of the State, cannot, by being first prohibited by law, and then allowed to be enjoyed by such only as will first comply with certain conditions prescribed by statute, be created a privilege within the meaning of the Constitution which may be subjected to taxation at the will of the Legislature, and that a privilege to be the subject of taxation must legally exist before it can be taxed, that is, its existence must necessarily precede the tax, and not depend upon the condition of a tax being first paid before it acquires life and being: otherwise, the sum paid would be a bonus or consideration for obtaining the privilege, instead of a tax upon the privilege. It would be the subject of stipulation and contract between the State and the party purchasing the privilege, rather than a legal imposition upon the privilege enjoyed. It would not, as every other imposition of taxes does, depend alone for its obligation and efficacy upon the statute, which in such case could not be enforced, as all laws are or may be, without any act of the party. Besides this, the right of using a billiard table, subject to the law regulating or restraining its use, is a common right, enjoyed by every citizen, which he could legally exercise without restraint, and without the aid of any law conferring such liberty or creating such privilege; and hence the necessity of first inhibiting the right to use such table before the attempt to impose a tax upon the use of it as a privilege. But if we are not mistaken in the nature and character of this right, the Legislature is as competent to inhibit the culture and acquisition of cotton, or corn, or the acquisition of horses or negroes, or any other article, species, or description of property, and then permit the production of the former, or the acquisition of the latter, by such persons only as will first pay to the State a sum of money for such liberty or privilege. They are all by the principles of our Constitution and government open-to the enterprize of every citizen, without any restriction, and may in any lawful manner be acquired and possessed by all without the intervention of any grant or privilege from the government, although their rights may be respectively so regulated by law as to prevent their exercise from operating injuriously upon the morals or interests of the community, still they can neither be destroyed, or their existence be made to depend upon any act to be performed, or pecuniary consideration paid to the State; and we apprehend that no one has ever entertained the opinion that the Legislature could subvert this most equitable and important principle of taxation, by first prohibiting the exercise of a right common to all, the benefits of which- were intended to be permanently secured to the citizens by inserting it in the Constitution as a law binding upon, and so operating as to control the Legislative department,in the exercise of its legitimate and otherwise uncontrolled power of imposing burthens upon the people, by way of taxation, upon'such principles as they might think proper .to establish by law, without regard to its operation being equal or uniform; such, for instance, as the right of acquiring and possessing land, and then transforming and creating a privilege out of such right, subject to arbitrary taxation, by permitting such only to enjoy the right as will pay to the State a specified sum of money arbitrarily prescribed by the Legislature before he can purchase or acquire title to, or possess, or cultivate, lands in this State, and yet the power of establishing and enforcing such imposition depends upon precisely the same principle as the power of prohibiting. And upon the like condition authorizing the “keeping” of a billiard table, neither of which is, or, in our judgment, can be, by any act of the Legislature, created a privilege subject to taxation as such within the meaning of the proviso in the Constitution. The privileges there contemplated being, in our opinion, such as cannot be exorcised or enjoyed by any citizen, or other integral part of the whole community, without the intervention of some statutory provision granting to, or conferring upon, one or more individuals, the right of doing some particular thing, as, for instance, the right of banking, of keeping a ferry across a navigable water where it is exclusive, of constructing a public road with the right of receiving lolls of such as travel thereon, and the like, and perhaps it might also embrace such as enjoy any privilege by way of exemption from the performance of onerous duties imposed upon the great mass of the community, if such privilege be first created by statute; but it certainly admits of serious doubt whether the latter class of privileges, if any such exist, were meant to be embraced by the proviso in question. And although we expressly reserve that question, and will not now express any opinion upon it, yet it appears to us most probable that it was not the intention of the Convention to embrace them therein, because privileges, by way of exemption, are generally, if not always, created in favor of those who have paramount public duties to perform, the performance of which might conflict with their obligation to discharge such minor duties from which they are exonerated, or to such as are considered unable to bear the burthen of discharging such obligations, in consideration whereof they are exempted or privileged therefrom, either on the ground of necessity or of public policy, and the injustice of subjecting such privileges to taxation is so apparent as to make the impression that such was not the design of the Convention, and, on the other hand, it ig evident that the class- of privileges first mentioned might, in some instances at least, constitute proper objects of taxation, because they confer upon the possessor extraordinary rights not unfrequently coupled with special exemptions, and generally productive of pecuniary gain, though, perhaps, in a ratio very unequal in reference to the capital employed, and therefore the power of imposing such tax upon them respectively, without regard to uniformity or reference to the amount of capital employed, was, in our opinion, very appropriately left in the discretion of the Legislature. But it may be said that rights of this description are not in legal contemplation embraced by the term privileges, and this perhaps might be urged with some appearance of plausibility, if the term must necessarily be understood as being used- in its most limited ’technical meaning, according to which it would probably be restricted generally, if not entirely, to the various descriptions of exemption recognized by the common lav.', such for instance as that an attorney at law shall not be arrested in a civil action, and shall only be sued by bill in the court of which he is an attorney, that a citizen of the counties palatine of Chester, Lancaster, and Durham, and the royal franchise of Eli,'and of the universities, shall not be sued in any other than their respective courts, and numerous privileges of a similar character extended by the common law to particular persons or places by way of exemption from some duty imposed upon or authority exercised over all other persons and places.
But upon examination it will be found that few, if any, of this class of privileges were ever recognized or admitted in any of these United States, to the situation and local concerns of which they are generally inapplicable, and some of them are opposed to the fundamental principles of our institutions and government, nor was any of them recognized in the jurisprudence of this Territory when the Constitution was framed and adopted, and therefore the presumption is almost irresistible that they were not in the contemplation of the Convention. Besides, even at common law, the term privileges embraced such rights as those first mentioned, although some of them are perhaps more appropriately designated by the name franchises, and are generally classed and referred to in the common law by that name, yet the meaning of the term privilege and franchise if not synonomous is so apposite, that they may without much impropriety be used as compre hending the same class of objects generally, and in this sense we think it must be understood as used in the Constitution, every part of which must be construed with reference to the whole, so that each part may operate harmoniously in advancement of the general object and design, which, in regard to taxation, appears to have been an equalization of the burthen, and this it was supposed would be best attained by requiring all property subjected to taxation for State purposes to be taxed according to its value, excepting only merchants, pedlars, hawkers, and privileges,subject to which the rulé was not supposed to apply with as great certainty, propriety, and justice, by reason of their great diversity and the difficulty of ascertaining their respective value and applying to them with equal justice and propriety* any permanent fixed rule.
But, however this may be, we deem it unnecessary to pursue the general investigation further, as the whole subject of privileges is not necessarily involved in the decision of the case before us, and we are decidedly of the opinion that the facts presented by the record before us do not show a privilege enjoyed by the plaintiffs, which, under the Constitution, could be made the subject of taxation as such, and that so much of the fifth section of the statute above quoted as purports to impose a State tax of five hundred dollars on the keeper of every billiard table in this State for the period of six months, and at the same rate for a shorter time, is in conflict with and repugnant to the provisions of the Constitution of this State, contained in the second section thereof, under the title 64 Revenue,” and therefore void.
Wherefore, it is the opinion of this court, that the State tax of one thousand dollars assessed and charged against the said plaintiffs by the Sheriff of Pulaski county, and contained in the tax book of said county for the year A. D. 1839, purporting to be a tax upon the privilege of keeping two billiard tables, is unauthorzed by law, and for this reason the same ought to be, and hereby is, forever superseded. | [
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Dickinson, Judge,
delivered the opinion of the court:
The plaintiff assigns as causes of reversal, that the defendant in the court had no legal notice of the proceedings against him, &c. 2nd. That the Circuit Court had no authority to reinstate the judgment. An objection was made on the part of the defendants in error that the judgment of the Circuit Court was not of a character which could be considered final. Whatever doubts we may have entertained upon the subject, the order for execution clearly shows that the Circuit Court considered their action final. Such being the fact, we consider it the duty of the court to look into the record and test the validity of its proceedings.
That it is indispensably necessary that the defendant should have had some legal notice, either actual or constructive, of the cause of action against him, or have waived it by his personal appearance, there can be no doubt or question; and it must be conceded that merely naming a person and styling him a party in the writ or pleadings alone, without giving notice of the proceeding, will not render a judgment valid against him. In the present case, Webb made no defence in the Circuit Court; nor, does it appear from the record, that he had any legal notice, either actual or constructive, of the proceedings against him; nor that he waived such notice by his voluntary appearance. It is a settled principle that unless it appears affirmatively upon the record that the defendant was regularly brought into court in accordance with the statutory provisions regulating the mode of bringing actions, (see sec. 3 to 13, p. 619, Rev. Code,) or that he consented to proceed without process or notice, the court could not exercise any jurisdiction over the subject matter. This objection is valid at every stage in the cause, and cannot- be cured by any subsequent proceeding. And the rule, that want of notice is fatal, is uniformly sustained by all the authorites. See Ormsby vs. Lynch, Littel's Sel. Cas. 303; Borden vs. Fitch, 15 J. R. 121. The second assignment, that the court below could not rightfully reinstate on the record a judgment the original of which was lost or destroyed, has been already decided in the case of Webb vs. Estill, at the last term, and as we think upon correct principles.
We are of opinion, therefore, that the judgment of the court below is absolutely null and void, and that the same ought to be reversed with costs.
The same decision was made in the case of Pettit vs. Hanger & Winston. | [
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Dickinson, Judge,
delivered the opinion of the court;
The only question presented for the consideration of this court is as to the correctness of the decision of the court below in sustaining the demurrer.
The defendant in this instance has wholly disregarded the 60th section of the Rev. Ark. Stat.p. 627, under the head of Practice at Law, which requires that when any demurrer shall be filed in any action, and issue joined thereon, the court shall proceed and give judgment according as the very right of the cause and matter in law shall appear, without regarding any defect or other imperfection in the process or pleadings, so that sufficient appear in the pleadings to enable the court to give judgment according to the very right of the cause, unless' such defect or imperfection be specially expressed in the demurrer; therefore, upon the principles decided at the present term of this court, in the case of Davies vs. Gibson, we must consider it as a general demurrer, and the only question presented for our decision is, whether the plaintiff has stated and set forth a sufficient cause of action to be legally entitled to a recovery. The declaration contains two counts, and each one is founded on a promissory note executed on the first day of February, 1839, to the plaintiff, by which the defendant acknowledges himself to owe said plaintiff the sum of three hundred and thirty dollars and eighty-four cents in good cash notes, and alleging that the same remain due and wholly unpaid by the defendant. These facts are sufficient in law to entitle the plaintiff to a recovery and are pleaded in the declaration with sufficient certainty; while the defendant has omitted to state in his demurrer in what respect the declaration is defective or imperfect, and unless such defect or imperfection is so stated and set forth, this court . is not authorized to regard it.
Wherefore, the opinion of this court is, that the judgment of the court below in sustaining the demurrer to the plaintiff’s declaration is erroneous, and that the same ought to be reverséd with costs, and this case be remanded to the Hempstead Circuit Court for further proceedings to be had therein, not inconsistent with this opinion. | [
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Ringo, Chief Justice,
delivered the opinion of the court:
The petition literally follows the form prescribed by the statute; and the obligation therein set forth is a literal copy of that given as oyer: there is therefore no variance or misdescription of the writing' obligatory sued on, and according to the principle recognized and established by this court in the case of Webb vs. Prescott and Jones, decided at the present term, there is no necessity for any formal averment in the petition that the defendant sealed the instrument, or subscribed it by any particular name or description, where the whole instrument, including the signatures and'seal, is literally copied into the petition, because the statement in the petition that the plaintiff is the legal holder of a bond against the defendants to the following effect, is in such case equivalent to such averment. The judgment is therefore reversed. | [
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Lacy, Judge,
delivered the opinion of the Court:
In inspecting the transcript of the record sent up to this court, we find a paper appended to it, which purports to be a statement of the testimony given on the part of the plaintiffs in the case of Albert Pike and wife and O. H. Smith and wife, against John H. Lennox, in an action of detinue.
This statement details the evidence of Terrence Farrelly and Frederick Notrebo, and is signed by E. L. Johnson, Judge, and is marked filed October 12th, 1838, G. W. Stokes, Clerk.
The assignment of errors questions the correctness of the opinion of the court below, in overruling the defendant’s motion for a new trial, and in rendering judgment in favor of the plaintiffs. Before we proceed to examine and discuss the question raised by the assignment of errors, it becomes necessary to determine whether the paper purporting to be a statement of the testimony in the case, signed by the judge and marked filed by the clerk, constitutes a part of the record or not.
In disposing of this preliminary question, we will consider in (he first place what constitutes a court, and what a judicial record. A court is defined to be a place where justice is judicially administered. In all courts or judicial tribunals, the sovereign power of the government in contemplation of law, is always presumed to he present, and that sovereignty is represented by the judges, or other properly constituted legal officers, whose authority is only an emanation of the sovereign will.' 3 Blackstone Commentaries 24, Co. Litt. 260. A court of record is where the acts and judicial proceedings are enrolled in parchment or on paper for a particular memorial and testimony, which rolls are called the records of the court, and are of such high and supereminent authority, that their truth isnot to be called in question. For it is a settled maxim, that nothing shall be averred against a record, nor shall any plea or proof he admitted to contradict it. if the existence , of the record be doubled or denied, that fact shall be tried by nothing but the record itself, that is upon bare inspection whether there be any such record or no, else there would be no end of disputes. 2 Tidd 850; Starkie on Evidence 72.
Whatever proceedings or facts the law or the practice of the courts requires to be enrolled, constitute and form a part of the record. Such, for instance, are all judicial writs and process, finding of the jury, and the judgment of the court, and the like. Whatever else that is not necessary enrolled, such, for example, as oral and written testimony, and exceptions taken to the opinion and judgment of the court, constitutes no part of the record, unless they are expressly made so by order of the court, by the agreement of the parties, by demurrer to evidence, by oyer, by bill of exceptions, or by special verdict. These are the usual and only legitimate modes by which matters of fact may be spread upon the record. Cole v. Driskell, 1st Blackf. 16; Gist v. Higgins, 1st Bibb 304.
The question then is, does the paper found among the files of the clerk, which purports to detail the evidence in the cause, and which is signed by the judge, constitute any part of the roll or record of the court? It certainly does not, for being merely a statement of testimony, it. is never regarded by law, or the practice of the courts, to be necessarily enrolled; There is no order of the court directing it to be spread upon the record, nor is there any agreement of the parties placing it there; and surely it cannot be pretended that it is put upon the rolls, by oyer, special' verdict, demurrer to evidence, or bill of exception; then it can only be regarded as a mere loose paper on the files of the clerk, or the memorandum of the judge of his notes on trial. It is appended to the transcript of the record sent up, and immediately follows the bill of exceptions that was taken upon the trial; and which by express order of the court was made part of the record. It is signed, not sealed, by the judge, and whether it contains all or any part of the testimony given on the trial, we cannot judicially know; for being no part of the record, we are not authorized to look into it, nor can a writ of error reach it. If a party wishes to avail himself-of any matter upon error that does not necessarily appear of record, he must file exceptions at the trial, or request a special verdict. In McFaddin and others v. Otis, 6 Mass. 323, the defendant moved for a new trial, upon the ground of the instructions of the court being against law, and requested the judge to report the evidence imd the instructions. The report was made, and after an opinion was intimated against the new trial by the Supreme Court of Massachusetts, the counsel for the defendant stated that the defence rested upon the embargo laws passed by Congress, as appears by the Judge’s report; and he was instructed if judgment against his client, to • move the cause by writ of error into the Supreme Court of the United States.
It was then observed to him by the court, that the report of the judge was not made part of the record, and as the defence was only apparent from the report of the judge, he could have no relief by error to the Supreme Court of the United States; and that if he had contemplated a writ of error, he ought to have filed a bill of exceptions, or requested a special verdict. The rule here laid down is conclusive upon the point now before the court, and the case in which it was stated is every way stronger than the one now under consideration. In the case above referred to, the report contained the defence and the instructions of the judges, and still it was held that the report is part of the record.
There is only a loose memorandum of a judge containing the notes of the testimony, and nothing more. In the case of Coolidge v. Inglee, 13 Mass. 50, the court held this language: “ The report of the. judge is not a part of the record, nor are reasons given for the final opinion of the court, nor the papers or documents filed in the case.” In no possible aspect, then, can this statement of the testimony be considered as any part of the record; but even admitting it to be a bill of exceptions, which it certainly is not, still it would be excluded from our consideration, for it does not appear to have been taken during the trial, or upon any motion made in the court below. The object of a bill of exceptions is two-fold. First, it is to object to the opinion of the court on some point of law, and refers generally to the competency of witnesses, the admissibility of evidence, or the legal effect of it, and the like; and secondly, it is to reduce to writing and incorporate on the record, the substance of the transaction on which the opinion of the court is found, so that the court alone, when called on to revise the decision given, may be able to see and correct the error, if any exists. In Evans vs. Pope, and Gray vs. Nations, it was decided by this court that bills of exceptions were only allowable, during the trial, and that facts must appear on the face of the exceptions, if afterwards they are reduced to.form and signed. They must appear to have been taken and signed at the trial. Law vs. Merrills, 6 Wend. 278; Walton vs. U. States, 9 Wheat. 651; Exparte Bradshaw, 4 Peters 107; 2 Tidd. Practice, 912.
The bill of exceptions which is made part of the record, calls in question the opinion of the court below, in refusing to set aside the verdict, and in not awarding a now trial. It is contended on behalf of the plaintiffs in error, that the Circuit Court erred in oyerruling the motion for a new trial, as the verdict and judgment on the case was contrary to law and evidence. It is a well settled principle, and one fully established by all the authorities, that he who impeaches the judgment of an inferior court, is hound to show to a superior tribunal in what the error consists of which he complains. He must be able to lay his finger upon the error, and point it out, if he seeks to review or correct it.
The reason of the rule rests alone upon the presumption, that the judgment below was right; and that presumption is strengthened and fortified by the universally admitted principle in all correct reasoning, that he who holds the affirmative of any proposition, is hound to prove it.
Hence it has been so repeatedly ruled in this court, that every thing will he presumed in favor of the verdict and judgment of the court below, except what is affirmatively disproved by the record, or what this court is hound judicially to take notice of.
By applying this principle to the case now under consideration, we will readily perceive how the matter stands. There is hut one. bill of exceptions filed in the case, and that contains no part of the evidence adduced upon the trial; neither does the record disclose in any part of it, what testimony was given or refused upon the hearing of the cause. It is wholly impossible, then, for this court to know how or in what manner the plaintiffs claimed title to the property in question, or what was the nature and character of the defence set up in bar of their right of recovery. Belli the record and bill of exceptions being wholly silent on these points. We are then necessarily compelled to resort to the legal presumptions that arise in the case, and which, of course, arc binding and conclusive upon this court. We are then bound to presume, that the plaintiffs established their right to the property in dispute, by competent and satisfactory evidence, or the jury would not have rendered a verdict in their favor. Without such proof, the jury had no right to find a verdict against the defendants, or the court to pronounce judgment upon their finding; whether the facts or circumstances of the case did in reality warrant the jury in coming to such conclusion, we have no means of knowing, but that is the legal presumption, which, in the absence of all opposing or contradictory testimony on the subject, we are bound to respect and obey. The presumption stands in lieu of full and conclusive proof on the point, and in legal contemplation, is in every way equal to -it. The declaration in this case is correctly drawn, and contains on its face a good cause of action; the plea and joinder are regularly filed and every way sufficient, and make up a valid issue between the parties; the verdict is a response to that issue, and is strictly formal, perfectly legal.
It finds the slaves in the delaration mentioned, lo be the property of the plaintiffs, and it affixes their value severally and respectively. It also finds their detention by the defendants, and awards a certain amount of damages for the same. No valid objection then can be taken to the finding of the jury, for their verdict is in accordance with the most approved forms and precedents in such cases. 11 Co. 109; Cornwell vs. Truss, 2 Munf. 195; Gordon vs. Harper, 7 T. R. 9; 2d Starkie on Evidence, 288, 9. The only remaining question now to be decided is, was the judgment in the court below rightfully given in favor of the plaintiffs, or properly pronounced on the verdict? That it was, is perfectly manifest from an inspection of the judgment itself. After the eois consideratum is recited by the court, judgment proceeds to declare that the plaintiffs do have and recover of the defendants, severally and respectively, the slaves in the declaration mentioned, if they are to be had, or if they or any of them arc not to be had, then it awards the value of each slave separately, as ascertained and fixed by the jury- It further declares, that ihc plainliffs do have and recover of the defendant, the amount of damages as found by the jury, and that sum is set forth in the judgment for the detention and hire of the slaves while they were in the possession of the defendant, together with the costs of suit. The judgment in every particular follows the verdict, and corresponds with it. The writ of error sued out, denies the validity of this judgment. It is certainly valid and regular on its face. In what then does its illegality consist? It is pronounced upon a valid and regular verdict, presumed to be given on full and competent proof, and every way satisfactory to the minds of the jury who rendered it.
This is an action of detinue, where the plaintiffs sue for the recovery of the particular thing demanded, and the judgment in such form of actions must be in the alternative, and is given for the recovery of each particular item of property mentioned in the declaration, if to be had, or if not to be had, then it is rendered for the respective value of each article separately. It is usual for the jury to give damages for the detention of the property, and in such a case the judgment should pursue the finding, and award the damages assessed by the jury, with the costs of this. In the present instance, the judgment is in strict conformity with the rules just stated, and that being the case, it is fully-sustained by all the authorities. Higginbotham vs. Rucker, 2 Call 313.
As it has been already shown that the legal presumptions are all in favor of the verdict and judgment of the court below; and as these presumptions stand unopposed and uncontradicted by any part of the record, it necessarily follows that there is no error in the opinions and judgment of the Circuit Court, now brought up for revision and correction. It may be, and probably is true, that the defendant had a good and lawful defence to the action. But, then, if he had, he has lost the benefit of that right by his own lashes, or that of his counsel. There is but one bill of exceptions taken during the trial, and that wholly fails to spread any part of the testimony on the record. It was unquestionably the duty of the defendant’s counsel, in excepting to the opinion of the court in overruling his motion for a new trial, to have incorporated into the record all the testimony given in the cause, so that this court could have seen whether there was error or not in the decision and judgment of the Circuit Court.
If, in omitting to do this, the defendant’s rights have been prejudiced and injured, the fault rests with himself and his counsel, and this court is not authorized, by bare possibility or conjecture, to supply any omission or mistake.
The legal consequence, then, attaches in favor of the verdict and judgment of the court below, and is decisive of the question. This being the case, it necessarily follows that the judgment of the Circuit Court must be affirmed, with costs. | [
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At the last term of this court, the appellee produced in- court, and filed the certificate of the Clerk of the Circuit Court of Washington county, that an appeal had been entered, and a recognizance given in this case according to law, at the May term of said Circuit Court, in the year 1839; whereupon this court entered a rule against tile appellant to appear on the first day of the present term and show cause why the judgment appealed from should not be affirmed, by reason of his failure to file in this court ten days before the last term thereof, a duly certified transcript of the record in this case, and also for his failure to file his assignment of errors therein, within the first four days of the last term of this court as required by law; but there being no legal service of said rule on the applicant, the same was renewed at the present term, and made returnable to the court on the thirty-first day of January, 1840, on which day, the same being returned executed according to law, and the appellee thereupon renewing his motion previously made to affirm the judgment; and the appellant not showing any cause for his failure to file in this court a duly certified transcript of the record in this case according to law, the rule against him was made absolute; and the judgment below agreeably to the requisitions of the 24th section of the 117th chapter of the Revised Statutes-of Arkansas, p. 644, was affirmed with costs. | [
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Lacy, Judge,
delivered the opinion of the court:
The pleadings in the case present but a single question for our consideration and decision, which is, can the defendant at one and the same time exercise the powers and duties of the office of Justice of the Peace, and of Treasurer of the State? The examination and decision of this question involves the construction of the Constitution of the State, and the relative powers of the different departments of the government as organized and established by that instrument.
The Constitution declares that “ the powers of the government of the State of Arkansas shall be divided into three distinct departments, each of them to be confined to a separate body of magistracy, to wit: those which are Legislative to one, those which are Executive to another, and those which are Judicial to another;” and that no “person, or collection of persons, being of one of those departments, shall exercise any power belonging to either of the others, except in the instances hereinafter expressly directed or permitted.” See Art. 3.
The evident design and intention of these provisions was to separate and divide the sovereign will of the community into three distinct departments of government, and to distribute that will amongst three separate sets of agents or public functionaries, and to assign to each a peculiar sphere of duties, and ,to make it supreme within the circle of its constitutional action. Tins wise and invaluable principle lies at the very foundation, and constitutes the ground work of all the American Constitutions, and is their chief excellence and characteristic distinction. All the great and essential rights of life, liberty, and property, depend for their protection and preservation principally, if not exclusively, upon the separation and division of all the powers of government into three distinct departments, whose functions and duties are required to he exercised and performed by three distinct or separate sets of agents. The union or concentration of the powers of .three separate departments into the same hands, be they few or many,, is the essence of tyranny, and constitutes the means by which every species of oppression and injustice can be practised with impunity. The action of each department must necessarily be sovereign and supreme within, its constitutional orbit, or it cannot be independent of the other departments, and it is uncontrolable so long as it acts within the circle of its constitutional jurisdiction. The moment any one department passes beyond its prescribed and ordained authority, its action is placed under the supervision and control of other departments and of the people. The joint and united action of three departments represent and constitute the sovereign will of the State, as created by and embodied in the Constitution. Their action is not wholly independent of, or disconnected from, each other, but they are joined and blended together in their united agency for the purpose of protecting and upholding the rights of the citizen and the government, while their constitutional jurisdiction and powers are carefully marked out and widely separated from each other. It is the duty of the Legislature to make and ordain the laws, of the Courts to expound and interpret them, and of the Executive to see that they are faithfully •executed. These principles may be regarded as political axioms in the theory and science of all just and free governments, and they furnish the standard or criterion by which the different departments are contra-distinguished from each other, their respective duties ascertained and determined.
The Legislative department of our government is vested in the General Assembly, which is made to consist of a Senate and House of Representatives. See Art. 4, of the Const.
This provision of the Constitution certainly excludes in express terms the office of Justice of the Peace and of Treasurer of the State from that department; for all Legislative power whatever is exclusively given to the Senate and House of Representatives, as a constituent department of the government. No rule of interpretation then can include the offices of Justice of the Peace and of Treasurer of the State, either by express grant, or necessary implication within the Legislative branch or division of power: besides the Constitution itself has assigned them to the other departments. The Constitution creates the office of Governor, and makes him the supreme Executive officer of the State, and the head of that department of power; it makes it his duty to take care that the laws are faithfully executed, and to aid him in the performance of this duty it establishes other Executive officers and assigns them to the Executive department. See Art. 5. Among them is the office of Secretary of State, of Treasurer, Auditor, Sheriff, Coroner, Constable", and Militia officers: all these officers strictly belong to the Executive department, for the Constitution assigns them to that division of power, and makes all their duties necessarily of an Executive character. They constitute the agency or means by which the Executive will is carried into effect, and the laws of the land executed and enforced. As the Executive cannot perform personally all the duties of his department, these offices are established by the Constitution to aid and assist him in the discharge of his legal and constitutional obligations.
These principles are unquestionably established as well by the formation and organization of the offices themselves as by the nature and character of the duties prescribed to be performed, and they rest upon the highest weight of authority, and upon the clearest deductions of reason. The Supreme Court of Maine have declared upon a case involving the construction of the Constitution of that State, in regard to the division and separation of the three departments of the government, that “ the Governor, Secretary of State, and Treasurer, were respectively a part of the Executive department, and so also were Sheriffs and Coroners; that the Treasurer was an Executive officer, because he was named in the Constitution, and his election provided for under the article concerning the Executive department, and because he aids the Governor in causing all the State taxes to be col lected and paid into the Treasury for the public use,” and they further decided “that Justices of the Peace were a part of the Judicial department, and that the office of Justice of the Peace was incompatible with that of Sheriff, Deputy Sheriff, or Coroner, and that no person could of right at the same time exercise the office of Justice of the Peace, and also the office of Sheriff, Deputy Sheriff, or Coroner.” 3 Greenleafs App. 484. See also debates upon the Constitution o-f the United States. Federalist.
It follows, from the principle above laid down and established, that the office of Treasurer of the State is an Executive office, and that all its powers and duties belong strictly to the Executive department.
It only now remains to be seen to what department, under our form of government, the office of Justice of the Peace rightfully belongs. This point is clearly and conclusively settled by the Constitution itself, for it declares that “the Judicial power of this State shall be vested in one Supreme Court; in Circuit Courts* in County Courts, and in Justices of the Peace,” and that “„the General Assembly may . also vest such jurisdiction as may be deemed necessary in Corporation Courts, and when they deem it expedient may establish Courts of Chancery.” Art. 6, sec. I.
Sections third, ninth, and fifteenth, of the sixth article as above quoted, define and limit the constitutional jurisdiction of Justices of the Peace, and they are all perfectly explicit in showing the office to be exclusively judicial, and that all its duties strictly appertain ‘ to that department of power.
The office, of Justice of the Peace is as much a judicial office as the office of Supreme Judge, or Circuit Judge, for its power and being are derived from the same source, and stand precisely upon the same constitutional provision or enactment. ‘ If the conclusions to which the court have arrived be true, and that they are seems to our minds to be almost a self-evident proposition, then the office of Justice of the Peace belongs exclusively to the Judicial, and that of Treasurer of the State to the Executive department; and this being the case the Constitution forbids, in express terms, any person or collection of persons from exercising the powers and duties of these two offices at one and the same time. See Art. 3.
The enquiry next is, as the defendant cannot exercise and hold both offices at one and the same time, which of them is vacated and annulled. Is it the office of Justice of the Peace or Treasurer of the State?
Every citizen has the unquestionable right of filling either of these offices, provided he brings himself within the constitutional requisites or qualifications. To fill either office legally, and constitutionally, it requires the joint action of the electors, and his acceptance of the office. When both these acts concur, then the office is rightfully filled. The commission of the Governor is evidence of the incumbent’s right to the office, and of his authority for its exercise. In the selection of an incumbent to fill any office the electors’ right to choose is wholly unrestricted except in the manner pointed out by the Constitution or by the laws, and consequently they can elect any individual they please. Their right to vote for him cannot be questioned if he possess the legal and constitutional requisites for the office; and if this be the case, it would render that right nugatory, or of no effect, if the person chosen did not possess the right to accept the office. To give to the electors the authority for selection, and at the same time deprive the incumbent of the power of acceptance would be virtually to annul the right of suffrage itself. This would be giving a right and taking away all the means by which it could be enjoyed, which involves such manifest absurdity and contradiction that it is impossible for it to be true. If the person voted for has an unqualified right of acceptance of the office to which he is elected, the moment he determines his will or election in regard to it and accept the office, that instant of time he of course resigns or vacates any other office ho holds incompatible with the one he accepts. This is strictly true in regard to all offices whose duties are inconsistent with each other, and belong to separate departments of the government. The authorities are so clear and conclusive on this point we deem it unnecessary to add any thing moré in support of the principle except merely to refer to them. Johnstone vs. Margetson, I Henry Blackstone, 260; Milward vs. Thatcher, 2 T. R. 81.
The pleadings in this case admit the fact that the present defendant, John Hutt, is in the full possession and enjoyment both of the office of Justice of the Peace, and of Treasurer of the State. This being the case, of course he is constitutionally ineligible to hold and exercise both these offices at one and the same time, because they belong to separate and distinct departments of the government. It therefore necessarily follows that his election to and acceptance of the office of Treasurer of the State wholly vacated and annulled his office of Justice of the Peace of the county of Pulaski.
The application of these principles to the question raised upon the demurrer and the replication, conclusively demonstrate that the former is fatally defective, and the latter fully sufficient to invalidate the warrant that the defendant has shown in his plea for the exercise of the office of Justice of the Peace. | [
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Dickinson, Judge,
delivered the opinion of the court:
At the time the instrument was executed, a scrawl, without any words in the body of it, was sufficient to make it a valid instru ment. The de murrer admits the facts to be true, as set out iu the petition. The averment is that it was a writing obligatory, and of course a sealed instrument. It was sealed as to both of the obligors, although there was but one scrawl attached to it. By signing it and placing after both their names one seal, it became valid as to both, to all intents and purposes. And so the petition alleges it to be, and the writ corresponds with the allegation.
If two persons sign with one seal, both are held to have sealed the instrument. The petition is, therefore, every way sufficient; and this position is fully sustained in Hurlstone on Bonds 7; Shep. Touch. 55; Com. Dig. Fait (A.) 2; Ball vs. Dunsterville, 4 T. R. 313; Elliott vs. Davis, 2 Bos. and Pul. 338. It is said the defendants were partners, and therefore, they had no right to bind each other by a sealed instrument. There is no averment in the petition that they are partners. The statement that they executed it by the style and description of J. H. Newman and P. Pollock, so far from showing them to be partners, expressly disproves that fact. The court below therefore erred in sustaining the demurrer, and its judgment must be reversed with costs. | [
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Rikgo, Chief Justice,
delivered the opinion of the Court:
The plaintiffs, by their assignment of errors, present as error in the proceedings and judgment of the Circuit Court more than thirty matters, which, or as many of them as may be deemed material, will be considered, and the questions arising upon them disposed of by the court.
The first question arising upon the record and assignment of errors is this; is the declaration sufficient inlaw to enable Conway, as Auditor of Public Accounts of this State, to have and maintain this action against the plaintiffs in error? In considering this .question, we will first examine and dispose ofthe several matters specially stated in the demurrer to the declaration. The first ground of demurrer, so stated, denies the legal right of the Auditor of Public Accounts to sue in his individual name and official character upon the bond mentioned in the declaration. This right depends upon the provisions contained in the Statute approved Nov. 8tb, 1836, “ entitled an act directing in what courts and manner suits may be commenced by and against the State, and for other purposes,” which was in full force, on the 7th day of September, 1838, when this action was commenced. See Acts 1836, p. 195. The first section, of said act, declares “ that it shall and may be lawful for the Auditor of Public Accounts ofthe State of Arkansas, to sue in the Circuit Court for any demand which the people of the State may have a right to claim; and to be sued and to sue, to plead and be impleaded, to answer and be answered, to defend and be defended, in said Circuit Court, in the name of the Auditor of Pub, lie Accounts for the State of Arkansas.” The right of the Auditor to sue in his own name and official character, upon a bond payable to the Governor, and his successors in office, by virtue of the provisions of the statute above quoted, was made a question before this court, in the case of Conway Auditor, &c., vs. Woodruff, et als., decided at the last term, between which, and the case under consideration, no essential difference is perceived or believed to exist in regard to this question; and it was then held, that an action so brought, could be legally maintained, and we have not, as yet, discovered any reason to doubt the correctness of that decision, or the reasons upon which it is based, but no question asto what averments in the declaration are in such cases necessary to show the right of the people, or interest of the State, to the demand in suit, was, in that case, discussed or examined by the counsel, or the court. The authority of the Legislature to make the enactment, and the right of the Auditor derived from it, to maintain the action in his own name and official character, upon a contract or bond made directly payable to the Governor and his successors in office, being the only questions material to the present case, then discussed and decided, the court deemed it unnecessary-to discuss the question then, as it was not adverted to, or relied upon, by the counsel for the defendants, and was not important, inasmuch as the judgment of the Circuit Court must have been affirmed upon a different ground, whatever might have been the result upon such investigation; and, therefore, it was silently passed over. But the same question arises on the demurrer to the declaration in the present case, and the plaintiffs in ■error insist that the declaration wholly fails to show any interest whatever of the State, or people, in the bond sued on, or the money demanded, and sought to be recovered, by the suit. It is therefore important to ascertain what legal right the plaintiff has shown, in the State, or people of the State, to claim the debt demanded of the plaintiffs in error; for it cannot, in our opinion, be denied that the Auditor’s right to sue or maintain the action under the statutory-provisions above quoted, upon the interest which the State or people have in the debt, or thing demanded, and their right to claim the same, and his right to sue is expressly limited to “ any demand which the people of the State have a right to claim;” and, therefore, the people’s interest in, and right to claim the demand sued for, or sought to be recovered, must appear by some appropriate averment in the pleadings to enable him to maintain the action. Does it so appear from any thing contained in the declaration before us, that the State has any interest in, or right to claim the demand exhibited in this action? In our opinion it does not. The action appears, by the record, to be founded on the official bond of Taylor, as Sheriff of the county of Pulaski, executed by him, and his securities, to John Pope, Governor •of the Territory of Arkansas, and his successors in office, and the demand claimed by the Auditor, for the use and benefit of the State, is the penalty of said bond, a copy of which, together with the condition thereunder written, appears to have been given as oyer, and filed as part of the record of this case, which was accepted as oyer by the plaintiffs in error, who thereupon filed their demurrer to the declaration. The only additional averments in the declaration, material to be noticed, are, that the plaintiff is the Auditor of Public Accounts of the State of Arkansas, duly elected, commissioned, and qualified, •as the law prescribes; that he, in his.official character as Auditor of Public Accounts for the State of Arkansas, sues for the use and benefit of the State, and that by virtue of the statute, in such case made and provided, an action hath accrued to him as Auditor aforesaid, “ to have, demand of, and sue the said defendants, for the use and benefit of the State of Arkansas, for the sum of fifteen thousand dollars above demanded.” Do these facts, in themselves, in any form in which they can be presented, admitting them all to be true, establish any legal right in the people of the State, to claim the debt demanded by the Auditor for the use of the State ? Certainly they do not; for the obligation of the defendants set out in the declaration, is not to the State, nor is the State alone beneficially interested in it; the right to sue upon it, it is true may accrue to the State in like manner as to individuals, and when this action was commenced, the Auditor, if he had elected to do so, was at liberty to cause suit thereon to be prosecuted in the name of the Governor, for the use of the State, precisely as individuals could do for their own use; but the statute authorizing suits to be prosecuted in the name of the Auditor of Public Accounts for the State of Arkansas, “ for such demands as the people of the State have a right to claim,” is in derogation of the common law, and only gives the right to sue in the name of the Auditor in cases where the State has a legal right to the subject matter of the demand; and, therefore, upon every principle of law, such right must appear on the face of the pleading, otherwise the case cannot be considered as within the statute, and the omission will be fatal on demurrer, in arrest of judgment, or on error, because it omits to state any title or cause of action at all in the State, and cannot therefore be regarded as a title defectively stated, and therefore, as no legal liability on the part of the defendant below to pay the money to the State, which the Auditor claims of them for the use of the State, is shown in the declaration, the demurrer thereto was for this reason well interposed, and ought to have been sustained whether the defect was specially stated in the demurrer or not.
The second matter specially stated in the demurrer as a ground of demurrer, is within the principle decided by"this court,' in the case before mentioned, of Conway, Auditor, &c., vs. Woodruff, et als., where it was held that the failure of the officer to obtain the approval of his official bond, as required by the statute, does not in any manner affect the liability of the officer and his securities in such bond, if it is in every thing else legally executed and by them delivered as their obligation, and therefore the omission to set forth such approval in the declaration is not a defect available upon a general demurrer.
The third objection asserts that there is a material variance between the obligation given on oyer and that described in the declaration, but fails to point out the particular variance, and no such variance as would be fatal to the declaration on general demurrer is perceived by the court.
The fourth objection rests upon the assumption that Benjamin Williams, who is alleged to be a co-obligor, and not sued with the defendants below ought to have been joined in the suit, and this, if the additional fact that he is still alive appeared in the declaration, would, by the common law, be a good ground of general demurrer, and perhaps it may be a valid objection to the present declaration, as it is not stated therein that the obligors or makers of the bond sued on reside in different counties, so as to bring the case within the provisions of the statute, passed 10th January, 1816, and in force here when this action was commenced, Ark. Dig. 312, which declares that “in all cases hereafter where the obligor or obligors, maker or makers, of any note, bill, bond, or other contract, reside in different counties, it shall be lawful for the plaintiff, or plaintiffs, to institute suit against all, or as many of them as he may think proper, and it shall be lawful for the Clerk of the court, in which such suit shall be instituted to make out a separate summons, or capias, as the case may be, against the person or persons residing in a different county directed to the Sheriff of the county, or counties, where such person or persons reside, and endorse on such writ, that it is a counterpart of the writ issued, where such suit is commenced.” These statutory provisions innovate upon, and change the common law, so far as to authorize the suit to be brought and maintained against any number of the obligors or makers of the contract, but upon every principle of law, the plaintiff to avail himself of this special privilege, and present his case within the operation of. this statute, so as to exclude it from the operation of the general rule, must show by some proper averment on the face of his declaration, that the obligors, or makers of the contract, reside in different counties. The objection, however, as to. the non-joinder of-parlies who ought to be joined in the action was not available on demurrer, even at common law, unless it appeared by the declaration or other pleading of the plaintiff, that the parties not sued, not only executed the contract, but also that they are still alive, and if this does not appear, the objection can only be taken advantage of by plea in abatement, and to this effect are .the cases of Rice vs. Shute, 5 Burr Rep., 2611; Cabell vs. Vaughn, Rep., 291, n. 4; also Gilman vs. Rives, 10 Peter’s Rep. 298.
In the case before us the declaration does not positively show that the co-obligor Williams was alive when the action was commenced, but it is simply stated that he executed the bond, and is not sued. This language strongly implies that he was living, but whatever the legal presumption from it may be, it is deemed unnecessary to decide, as the demurrer ought to have beep sustained on the ground before stated, and if the case is remanded, the plaintiff will be at liberty to amend his declaration, and may obviate this objection, unless it may be taken advantage of by plea in abatementat that stage of the pleading in the Circuit Court.
The matter of the fifth, sixth and seventh objections, specially stated in the demurrer, are not defects of which the defendants can avail themselves by general demurrer at common law, because if the debt demanded had been paid to Governor Pope, or either of his successors in office, by the obligor Williams, such payment, if legally made, would enure to the benefit of all his co-obligors, and the defendants could avail themselvess by an appropriate plea of payment, and the breach assigned expressly negatives the payment by the defendants, or either of them, of the sum demanded, or any part thereof, to Gov. Pope, or either of his successors in office, or to the Auditor, since the right of action accrued to him by virtue of the statute before cited; and no special demand of payment was necessary to be averred as the sum demanded was legally due and payable according to the terms of the contract described, at the date of the bond, and it must in our opinion, be admitted that if there is no necessity to mention the co-obligors not sued in the declaration at all, a fortiori any allegation that they have not paid the debt must be unnecessary, and this appears clearly from the cases above cited to be the settled rule of the common law, for in some of them it is expressly stated that the deed or obligation set out on oyer, purported to have been sealed by persons not sued, and yet the objection was not deemed good on demurrer, because it did not appear that the person not sued had sealed the obligation and was still living; which, in every case must appear to entitle the defendant to avail himself of this objection, and, therefore, a plea in abatement, setting forth the facts-, was necessary when they did not appear on the faGe of the plaintiffs pleading, and which, in our opinion, is yet the rule of law, applicable to such cases, and as there is no averment in the declaration that Lowery, who is alleged to be dead, ever executed the bond, the rule in every respect applies to the case before us, and overrules the three last mentioned grounds of demurrer.
Having now disposed of the demurrer, and the several matters contained therein, specially stated as defects in the declaration, it is deemed unnecessary to notice particularly any other of the numerous matters which have been assigned as error in the proceedings and judgment of the Circuit Court, as the same questions may not arise upon another trial of the cause. It is, however, considered proper to state that the law in force, when the bond mentioned in the declaration bears date, requiring the Sheriff to give such bond to the Governor and his successors in office, does not vest in him or his successors in office, any beneficial interest whatever in the contract. He takes simply the legal interest, in his corporate character, as the legal and legitimate representative of the sovereignty of the people, and holds it as a naked trust for the use and benefit of any person, corporation, or body politic and corporate, who, or which may be damnified by any violation or breach of any stipulation contained in the condition thereof, and every person, corporation, or body politic and corporate, so damnified, is authorized by law to sue upon the bond, in the name of the Governor, for his or their use, from time to time, as often as may be necessary, until the whole penalty of the bond shall be satisfied or recovered. From which it appears that the Governor, and his successors in office, are vested by law simply with the legal interestin the obligation, without any authority to receive or release the debt, or in any manner change or discharge the obligation, otherwise than for the use of those who may sue and recover thereon for some breach of the condition thereof. And it will be observed also that the law has not conferred upon the Auditor any legal right to receive payment or satisfaction of any demand which the State or people have a right to claim; the power to sue and recover is alone vested in him by the provisions of the statute above cited, and therefore he cannot discharge the legal liability of any person to the State, or people of the State, except in the manner prescribed by law, after payment or satisfaction of the demand has been made to such officer as is authorized to receive it for and on account of the State, and, therefore, to enable him to maintain any action in his name, as Auditor of Public Accounts for the State, he is bound to exhibit such facts as “ create a legal demand in favor of the State” against the defendants, and if the action be founded, as it is in this case, upon the official bond of a Sheriff, it must be shown that the demand claimed for the use of the State, has accrued by reason of gome act done, or omitted, by the Sheriff in the discharge of his official duties, in violation of some stipulation cpntained in the bond, with sufficient averments that payment or satisfaction of such demand has not been made to such person as is authorized by law to receive it, for, or on behalf of the State, and here it may not be improper to remark that in this, as well as in some other respects, the suggestion of breaches in the present case, as contained in the transcript of the record before us, is materially defective; and as the case must be remanded to the Circuit Court for further proceedings to be there had, we feel it our duty to state that, in our opinion, this suit may well be prosecuted to a final judgment on the merits of the controversy, in the name of the Auditor of Public Accounts for the State of Arkansas. It having been commenced before the statute authorizing him to sue was repealed, his right to prosecute it to a final adjudication on the merits is preserved by the provisions contained in the 29th and 31st sections of chapter 129 of the Revised Statutes of Arkansas, pages 698 and 699. The former provides that “ the repeal of any statutory provision by this act, shall not effect any act done, or right accrued, or established, or any proceedings, suit, or prosecution had or commenced in any civil case, previous to the time when such appeal shall take effect; but every such act, right, and proceeding, shall remain as valid and effectual as if the provisions so repealed had remained in force;” and the latter declares that “ no action, plea, prosecution, or proceeding, civil or criminal, pending at the time any statutory provisions shall be repealed, shall be affected by such repeal; but the same shall proceed, in all respects, as if such statutory provision had not been repealed, except that all proceedings had, after the taking effect of the Revised Statutes, shall be conducted according to the provisions of such statutes, and shall be, in all respects, subject to the provisions thereof, so far as they are applicable.” These provisions were' designed to protect the parties to all proceedings pending for adjudication in any of the courts of this State at the period of the taking effect of the Revised Statutes, in all their rights as they then existed; so that the adjudication upon any proceeding or pleading had prior to that time, in any case then pending, shall be governed and determined by the law in force when the pioceeding took place, without reference to any subsequent change made therein in regard to the same, or the like proceeding, by any of the Revised Statutes, requiring however, at the same time, all proceedings subsequent to the taking effect of the statutes, even in cases previously commenced and then pending, to conform to the provisions thereby made, so far as they are applicable; but they cannot, consistently with the spirit and intention of the law, be considered as applicable when their application would avoid or invalidate any proceeding previously had in a matter then pending, which was before valid and authorized by the law in force, applicable to it when it accrued, and the same rules apply e converse, as that no proceeding not previously authorized, or legally invalid, when it accrued, is aided thereby; and, therefore, as this suit was, in this respect, properly commenced, it can be legally prosecuted to a final adjudication in the name of the Auditor, notwithstanding the statutory provision authorizing it, is so far repealed, as to divest the Auditor of his right to commence suit in his own name and official character for any demand claimed by the State since the Revised Statutes went into operation.
Wherefore, it is the opinion of this court, that there is error in the judgment of the Circuit Court, of the county of Pulaski, given in this case, for which the same ought to be, and is hereby, reversed, annulled, and set aside, with costs, and'the cause remanded to the said Circuit Court, with instructions to said court to sustain the demurrer to the declaration, and grant the plaintiff leave to amend, if he shall apply therefor, and for further proceedings therein to be had, according to law, and not inconsistent with this opinion. | [
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Ringo, Chief Justice,
delivered the opinion of the Court:
The only question material to be decided, is whether the writ of capias, without the seal of the Circuit Court thereto, is sufficient in law to authorize a judgment by default, for the non-appearance of the defendant, to be given against hirn? The 14th section of the VI. article of the Constitution of this State, ordains that “ all writs and other process shall run in the name of the State of Arkansas,” and bear tests and be signed by the Clerks of the respective courts from which they issue, Rev. Stat. Ark. 36. And the 2d sec. of the 129th chap, of the Rev. Stat. Ark. 777, provides that u all such writs shall be sealed with the judicial seal of such court.” These injunctions of law are positive and peremptory, and must be observed and obeyed; and, therefore, any process issued out of any court of record having a judicial seal, without such seal being affixed thereto is illegal, and cannot impose any legal duty on the person upon whom it is executed to observe and obey its mandate, or become the foundation of a judgment by default, for the non-appearance of the defendant, and upon this ground the Circuit Court erred in giving judgment agaipst Woolford, he not having entered his appearance to the action, and therefore the judgment of the Circuit Court of Pulaski county must be, and the same is hereby, reversed, annulled, and set aside with costs; and the cause remanded to said Circuit Court for further proceedings thereon to be there had, according to law, and not inconsistent with this opinion. Büt according to the uniform practice in such cases, the defendant below, as he has volufttarily made himself a party to this suit, by prosecuting his writ of error in this court must, upon the return of this case to the Circuit Court as above directed, be regarded as though he had been duly served with a valid writ to appear there, and answer the action of the plaintiff, more than thirty days previous to such term ©f said court. | [
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OPINION OF THE COURT.
[Samuel] Jenkins, the defendant in error, sued out an attachment from the office of the clerk of the circuit court of Chicot county, against [Thomas] James, and prosecuted the same to judgment. The object of the plaintiff in error is to reverse this judgment. Various grounds are relied on for that purpose.
First, it is contended that the affidavit upon which the attachment issued, is insufficient, the clerk having no power in such cases to administer oaths in vacation. Secondly, there was no service of the writ, and of consequence, that every subsequent step taken in the cause was erroneous. These are the only grounds we deem it material to notice. The first has been urged with some plausibility, but the practice has uniformly been, in making the affidavit required, to take the oath before the clerk; and although we have found no express provision in our statute delegating the power, yet we think it is impliedly given, and that the legislature obviously so intended it.
The second objection is of a more serious character. The only return made by the sheriff is in these words: “Served the within writ of garnishee on the within-named Squires’ Ward, Wm. B. Patton, and John S. Been, by reading the same within their hearing, in the presence of James Estlll and William Springer, on the 17th day of November, in the township of-, and county of Oliicot. Nov. 17, 1828.” The manner of serving the writ of attachment is pointed out in the third section of the act of 1818, entitled. “An act to provide a method of proceeding against absent and absconding debtors;” and requires that the officer should go to the place where, or the person in whose hands or possession the lands, tenements, goods, chattels, and effects are supposed to be, or the person supposed to be indebted to the defendant, and then and there declare in the presence of one or more creditable persons of the neighborhood that he attaches the same. The return of the sheriff does not even purport to be a service of the writ of attachment, and if it did, there has been no compliance with the provisions of the statute. The .proceeding by attachment is derogatory of the common law, and there should at least be a substantial observance of the provisions of the statute authorizing it Judgment reversed. | [
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ROBIN F. WYNNE, Associate Justice
11Appellant Mark David Johnson appeals to this court from the Drew County Circuit Court’s dismissal of his pro se petition for postconviction relief filed pursuant to Arkansas Rule of Criminal Procedure 37.1, (2012). Johnson entered a negotiated plea of guilty to two counts of first-degree murder, attempted capital murder, and first-degree battery. He elected to be sentenced by a jury, and terms were imposed of life imprisonment for each of the ■ counts of first-degree murder and a total of 600 months for the other offenses. All sentences were ordered to be served consecutively. The charges arose out of an incident in which Johnson rammed into a vehicle carrying his estranged wife, Heather Johnson, and two passengers, one of whom was. pregnant. The collision resulted in the death of the pregnant woman and her unborn child and serious injury to Heather and the other passenger. For reversal of the order, Johnson maintains that his attorneys were ineffective for failing to object to testimony by Heather in the sentencing proceeding that Johnson had molested her daughter; for not calling witnesses who could .have testified that the collision lawith the car was an accident; and for advising him to plead guilty. We agree with the trial court that Johnson failed to establish that he was not afforded effective assistance of counsel. Accordingly, we affirm the trial court’s order.
This court does not reverse the denial of postconviction relief unless the trial court’s findings are clearly erroneous. Williams v. State, 2016 Ark. 459, 504 S.W.3d 603. A finding is clearly erroneous when the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that the trial court made a mistake. Id. In making a determination o.n a claim of ineffective assistance of counsel, this court considers the totality of the evidence. Id.
Our standard of review requires that we assess counsel’s effectiveness under the two-prong standard set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In asserting ineffective assistance of counsel pursuant to Strickland, the petitioner first must show that counsel’s performance was deficient. McDaniels v. State, 2014 Ark. 181, 432 S.W.3d 644. This requires a showing that counsel made errors' so serious that he or she was not functioning as the “counsel” guaranteed by the Sixth Amendment. Id. Additionally, counsel is allowed great leeway in making strategic and tactical decisions, particularly when deciding not to call a witness. Noel v. State, 342 Ark. 35, 26 S.W.3d 123 (2000). “[M]atters of trial strategy and tactics, even if arguably improvident, fall within the realm of counsel’s professional judgment and are not grounds for finding ineffective assistance of counsel.” Howard v. State, 367 Ark. 18, 36, 238 S.W.3d 24, 39-40 (2006). The reviewing court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Id.
| aSecond, the petitioner must show that counsel’s deficient performance prejudiced the defense, which requires a showing that counsel’s errors were so serious as to deprive the petitioner of a fair trial. Id. In doing so, the petitioner must show that there is a reasonable probability that the fact-finder’s decision would have bqen different absent counsel’s errors. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id. Unless a petitioner makes both Strickland showings, it cannot be said that the conviction resulted from a breakdown of the adversarial process that renders the result unreliable. Id. “[T]here is no reason for a court deciding an ineffective assistance claim ... to address both components of the inquiry if the defendants make an insufficient showing on one.” Anderson v. State, 2011 Ark. 488, at 3-4, 385 S.W.3d 783, 786-87 (quoting Strickland, 466 U.S. at 697, 104 S.Ct. 2052). The Strickland standard applies to allegations of ineffective assistance , of counsel pertaining to possible prejudice in guilty-plea and sentencing proceedings. See Howard, 367 Ark. 18, 238. S.W.3d 24.
I. Counsel’s -Failure to Contemporaneously Object to Testimony Regarding Divorce Action
Johnson argues that the trial court erred by not finding that his attorneys were ineffective in the sentencing.proceeding for failure to make a contemporaneous objection pursuant to Arkansas Rules of Evidence 401 and 404(b) (2011) to testimony by Heather that she .had filed for divorce because she discovered that Johnson had been sexually, .molesting her minor daughter. The trial court noted that Johnson had waived the issue of-| ¿whether the testimony was admissible, by pleading guilty, but because the testimony was given, in the sentencing proceeding, counsels’ failure to object was germane to the issue of whether counsels’ representation was effective -under Strickland in the sentencing proceeding.
Arkansas Rule of Evidence 401 defines “relevant evidence” as evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Rule 404(b) prohibits raising past crimes or bad acts “to prove the character of a person in order to show that he acted in conformity therewith.” Russell v. State, 2017 Ark. 174, at 2, 518 S.W.3d 674, 676. Such evidence may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Stanton v. State, 2017 Ark. 155, at 6, 517 S.W.3d 412, 415, reh’g denied (June 1, 2017). Arkansas Code Annotated section 16-97-103(5) and (6) (Repl. 2006) provides that relevant character evidence and aggravating and mitigating circumstances considered inadmissible during the guilt phase of a criminal trial may be admissible during the sentencing phase. Crawford v. State, 362 Ark. 301, 306, 208 S.W.3d 146, 149 (2005). Evidence of uncharged criminal conduct can be admissible in the penalty phase of a trial if it is relevant evidence of the defendant’s character or as evidence of an aggravating circumstance. Brown v. State, 2010 Ark. 420, 378 S.W.3d 66. Further, the admission or |Brejection of evidence under Rule 404(b) is left to the sound discretion of the trial court and will not be disturbed absent a manifest abuse of discretion. Pickens v. State, 347 Ark. 904, 910, 69 S.W.3d 10, 14 (2002); see also Kinsey v. State, 2016 Ark. 393, 503 S.W.3d 772, reh’g denied (Jan. 5, 2017).
The test for establishing motive, intent, or plan is whether the prior bad act has independent relevance. Stevenson v. State, 2013 Ark. 100, at 12, 426 S.W.3d 416, 423. Under Rule 404(b), evidence is independently relevant and admissible if it has a tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Vance v. State, 2011 Ark. 243, at 20, 383 S.W.3d 325, 339-40. Any circumstance that links a defendant to the crime or raises a possible motive for the crime is independently relevant and admissible under Rule 404(b). Creed v. State, 372 Ark. 221, 273 S.W.3d 494 (2008). Evidence is admissible if it proves a material point and is not introduced solely to prove that the defendant is a bad person. Fells v. State, 362 Ark. 77, 84, 207 S.W.3d 498, 503 (2005).
Here, there was testimony in the sentencing proceeding at Johnson’s trial that Heather had served him with divorce papers two days before the collision, that she had done so . because she discovered Johnson had sexually abused her daughter, that Johnson was extremely angry with Heather on the day of the collision because she had filed , for divorce because of the alleged abuse, that Johnson had choked and threatened to kill her, and that he was also angry at the woman who was driving the car when the collision occurred. The testimony was' relevant to establish motive in causing the collision and, with regard to intent, to disprove Johnson’s assertion that the collision was a mere accident. We held in Hill v. State, 318 Ark. 408, 887 S.W.2d 275 (1994), a case in which the defendant pleaded guilty and was sentenced by a jury in a bifurcated proceeding, that facts and circumstances attendant to the crime are admissible so that the jury can fulfill its function of determining an appropriate sentence. A trial court has wide discretion in admitting evidence of other crimes or wrongs that pertain to the offense to which the defendant pleaded guilty. Id. at 415, 887 S.W.2d at 278. The evidence pertaining to Johnson’s extreme anger and hostility pertaining to the allegation of sexual abuse that occasioned Heather’s filing for divorce, as well as his conduct before the collision, was admissible under the circumstances of this case. Accordingly, the trial court did not err in finding that his attorneys’ representation was not ineffective because counsel failed to-make a contemporaneous objection to the testimony at issue. The petitioner under Rule 37.1 who raises the failure to object must show that there was a basis for a meritorious objection because failure to make a meritless objection is not ineffective assistance of counsel. Turner v. State, 2016 Ark. 96, at 4, 486 S.W.3d 757, 760.
II. Counsel’s Failure to Call Witnesses
Johnson argues that counsel should have called as witnesses for the defense Greg Murphy, a local body shop owner and operator, and Willie Gaston, an investigator for the defense who had studied the scene of the crash, inspected the wrecked vehicles and had knowledge of the circumstances surrounding the collision. He contends that both Murphy and Gaston could have offered testimony to corroborate the testimony of the accident-reconstruction expert who testified at length for the defense that the collision was an accident and not a deliberate act as the prosecution asserted. Johnson contends that the 1 ytestimony of Murphy and Gaston would have swayed the jury to impose a more lenient sentence.
We find no error in the trial court’s decision that Johnson failed to establish that he suffered any prejudice under the Strickland standard as a result of counsels’ failure to call either Murphy or Gaston, As stated, the defense called an expert in accident reconstruction who gave testimony favorable to the defense. Johnson did not show with facts that the testimony of either Murphy or Gaston would not have been merely cumulative to the expert’s testimony, and the omission of a witness when his • or her testimony is cumulative does not deprive the defense of vital evidence. Van Winkle v. State, 2016 Ark. 98, at 11, 486 S.W.3d 778, 786 (citing Rasul v. State, 2015 Ark. 118, 458 S.W.3d 722). Moreover, Johnson did not demonstrate that either potential witness could have been qualified to give admissible evidence on accident reconstruction. When a petitioner alleges ineffective assistance of counsel concerning the failure to call witnesses, it is incumbent on the petitioner to name the witness, provide a summary of the testimony, and establish that the testimony would have been , admissible into evidence. Stiggers v. State, 2014 Ark. 184, 433 S.W.3d 252. To demonstrate prejudice, the petitioner is required to establish that there was a reasonable probability that, had counsel presented the witness, the outcome of the proceeding would have been different. See id. Johnson did not make that showing.
The decision of trial counsel to call a witness is generally a matter of trial strategy and outside the purview of Rule 37.1. Banks v. State, 2013 Ark. 147. Trial counsel must use his or her best judgment to determine which witnesses will be bene-' ficial to the defendant. Id Nonetheless, such strategic decisions must still be supported by reasonable professional 1 judgment. Id. When assessing an attorney’s decision not to call a particular witness, it must be taken into account that, as the decision is largely based on professional judgment, the decision is one that could be debated endlessly by experienced advocates, and the fact that a witness or witnesses could have offered testimony bene ficial to the defense is not in itself proof, of counsel’s ineffectiveness. Huls v. State, 301 Ark. 572, 785 S.W.2d 467 (1990); Dumond v. State, 294 Ark. 379, 743 S.W.2d 779 (1988).
. III. Effective Assistance of Counsel ■ in the Guilty-Plea Proceeding
Finally, Johnson contended that his plea of guilty should be vacated be-causé it was not knowingly, voluntarily, or intelligently entered with effective assistance of counsel. Johnson was initially charged with two counts of capital murder for which the State sought the death penalty, one count of attempted capital murder, and one count of aggravated assault. Johnson entered into a negotiated agreement with the State whereby he would enter a plea of guilty to two counts of first-degree murder, one count of attempted first-degree murder, and one count of first-degree battery and be sentenced by a jury. The plea removed the possibility that Johnson could receive a sentence of death. Johnson asserted in his petition that the plea should be vacated because (1) he had insisted all along that he did not intentionally cause the collision; (2) counsel urged him to plead guilty and advised him that, if he went to trial and was found not guilty, the State would pursue him relentlessly on charges of molesting Heather’s daughter; (3) counsel coerced him to plead guilty by informing him that he would face á more severe sentence on the “alleged rape charge if and when that charge was filed by the State” if he did not plead guilty and that he could avoid being charged with rape by pleading guilty; (4) counsel advised him that he could obtain a | (/‘reversal and sentence reduction” on appeal; and (5) he would be released from prison within á year.
.The rule for evaluating ineffective-assistance-of-counsel claims in cases involving guilty pleas is set out in Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d. 203 (1985). In Hill, the Supreme Court held that the “cause and prejudice” test, of Strickland, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, applied to challenges to guilty pleas based on ineffective assistance of counsel. The Court further held that in- order to show prejudice in the context of a guilty plea, the petitioner must show, that there is a reasonable probability that, but for counsel’s errors, he or she would not have pleaded guilty and would have insisted on going to trial. Hill, 474 U.S. at 59, 106 S.Ct. 366. An appellant who has entered a guilty plea normally will have considerable difficulty in proving any prejudice, as the plea rests upon an admission in open court that the appellant did the act charged. Wood v. State, 2015 Ark. 477, 478 S.W.3d 194. Further, a petitioner under Rule 37.1 must allege some direct correlation between counsel’s deficient behavior and the decision to enter the plea. Scott v. State, 2012 Ark. 199, 406 S.W.3d 1. The fact that a plea of guilty may have been induced by the possibility that a more severe sentence could be imposed on the defendant if he or she went to trial does not, in itself, establish coercion. See Thomas v. State, 277 Ark. 74, 79-80, 639 S.W.2d 353, 356 (1982).
The record lodged in Johnson’s appeal from the sentencing proceeding, which is considered consolidated with the record in this postconviction appeal, reflects that Johnson, before he entered his plea, was fully informed of the factual basis for the original charges against him and the amended charges that eliminated the possibility that the death penalty would be imposed. While he complained that he was being given a “raw deal,” he stated 110that he did' not wish to .proceed With a jury .trial on the, issue of his guilt, and by pleading guilty, he was giving up his right to claim that he was not guilty; no one had forced him to give up his right to trial by jury; the plea agreement met with his approval; there could be no appeal from the plea of guilty itself; his attorneys had not forced him to. plead guilty and were “good lawyers”; and the jury would decide his. penalty for each offense, including the penalty for first-degree murder, which1 carried a range' of ten years, to forty years, or life imprisonment. Based on a review of the plea hearing and Johnson’s failure to provide facts to show in his Rule 37.1 petition that he was not fully advised of all. aspects of the plea, Johnson clearly failed to demonstrate that his plea should-be vacated on the grounds that he was not afforded effective assistance of counsel.
Affirmed.
. As we noted on direct appeal, Johnson initially filed a motion in limine to prevent the testimony concerning the alleged sexual abuse of the daughter from coming into evidence. The trial court explained to counsel that it was inclined to permit sufficient testimony to show motive and purpose, and that counsel would be allowed to object in the sentencing proceeding if there was cause to object to a question regarding the alleged abuse, Because there was no contemporaneous objection during the sentencing proceeding, we' declined to consider the issue of whether the testimony concerning the alleged abuse was admissible. Johnson v. State, 2013 Ark. 494, at 3, 430 S.W.3d 755, 756. | [
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Lacy, Judge,
delivered the opinion of the court:
At common law a writ of error was a matter of right, and issued of eourse out of chancery, to remove the record from an inferior to a suporior court, (except in cases coram nobis,) with a commission to the Judges of the reversing tribunal to examine the proceedings, and to-affirm or reverse the judgment according to law. 2 Saund. 100; 2 Bac. Abr. 448.
It lies where a person is aggrieved by an error in the foundation,, proceeding, judgment or execution' of á suit, and it is granted in all-cases, proceeding agreeably to the course of common law in a court of record, except in cases of treason and felony. Coke Litt. 238, 289, b,; 2 Bac. Abr. title Error A. 1, 2; Salk 504. But when the court acts in a summary manner, or in a new course, different from the course of the common law, a certiorari and not a writ of error lies. 1 Salk 253; 1 Ld. Raym. 223, 252, 454; Carth. 494. And should the court, when the judgment was given, be not a court of record, the judgment can aloné be reviewed by a superior court by virtue of & writ of false judgment. 2 Sellon, 410, 411, 423; Tidd, 1105, 1107; Tidd's Forms, 588, 600; Went. 2, 3, 271. This is the English doctrine, and the same principle is laid down and established by many of the American authorities, on the same subject. In Melvin vs. Bridge, 3 Mass. 304; Commonwealth vs. Blue Hill Turnpike Corporation, 5 Mass. 420; and Commonwealth vs. Ellis, 11 Mass. 465; it has been held that a writ of error does not lie where the proceedings are not according'to the course of the common law; and so in the matter of Negus, 10 Wend. 39. Hence a writ of error would not lie on proceedings before a Justice of the Peace, under the militia law, nor for the purpose of removing a record from the decision of a Probate Court. Pratt vs. Hall, 4 Mass. 239; Ball vs. Brigham, 5 Mass. 406. Upon error, if the judgment complained of was rendered by a court below, proceeding according to the course of the common law, then a writ of error lay, and in case of reversal in the Superior Court, such judgment was entered up there, as ought to have been given by the court below. But if the court below proceeded in a manner different from the course of the common law, the only mode of correcting any error that might have occurred, was by certiorari, and as the Superior Court had not the same special cognizance over the premises, they only affirmed the proceeding if found to be regular, or quashed them for irregularity, if the court below exceeded its jurisdiction. The writ was not granted from the decisions or decrees of courts of chancery, agreeably to the English practice, because courts of chancery were not technically considered as courts of record. And for the still stronger additional reason, that courts of chancery did not proceed in their trial and adjudications according to the course of the common law, but in a manner wholly different from it. This doctrine is now considered as well settled in England, though there are to be found in some of the authorities, a few dicta controverting it. When there was an erroneous order or decree by an inferior court, seriously affecting the rights of the party complaining, it could be corrected and reversed before a superior jurisdiction; and besides this, an appeal lies from the higher courts of chancery to the house of Peers. 3 Black. Com. 56, 416, 407, 411; 6 Comyn Plead. 444; 37 H. 6, 14 b; 1 Rolle, 744, 1, 44. The principle may then be regarded as incontro vertibly established, that a writ of error does not lie to review the record and proceedings of chancery cases from an inferior to a superior tribunal in England. We will now inquire whether, under our Constitution and Statutes, the writ will lie to remove chancery proceedings from the Circuit Courts into this court. The Constitution confers upon the Supreme Court the power to issue writs of error and other writs therein enumerated; and to hear and determine the same. It gives to it appellate jurisdiction only, except in cases otherwise directed by the grant, and it makes its jurisdiction co-extensive with the State, under such restrictions and regulations as may be prescribed by law. The sixth section of the fourth article declares “ until the General Assembly shall deem it expedient to establish courts of chancery the Circuit Courts shall have jurisdiction in matters of equity, subject to appeal to the Supremo Court. The Legislature, in obedience to this injunction have enacted that “ if any person shall deem himself aggrieved by any final decision, order, or decree, of any court exercising chancery jurisdiction; and if any such person shall pray an appeal to the Supreme Court, during the term at which such decision, order, or decree is made, such appeal shall be granted in the same manner as appeals are granted at suits at law.” Rev. Stat., chap. 25, sec. 137, p. 174. The Constitution, by giving to the Circuit Courts chancery jurisdiction, subject to an appeal to the Supreme Court, certainly conferred upon the parties an inchoate right of appeal, which the Legislature have rendered perfect, by prescribing the manner in which it shall be taken. The right of appeal is then a constitutional as well as a legislative remedy, conferred by affirmative words, which are to be taken and used in an exclusive sense; and this being the case, a writ of error cannot lie to remove the record in a chancery proceeding into this court. The Constitution and the Statutes, so far from authorizing or directing a writ of error in chancery cases, clearly forbid any such idea, by declaring that the right of appeal shall exist and remain inviolate; thereby asserting and affirming the rule of action adopted in the English courts. There is no legislative provision in express terms, or by necessary implication, that gives a writ of error in such cases; but upon the contrary, there is an express act giving the right of appeal, and imposing the conditions upon which it is grant ed. The statute regulating the practice in this court, declares “ that writs of error upon any final judgment, or decision of any Circuit Court, shall issue, of course, out of the Supreme Court in vacation, as well as in term time.” Rev. Slat. chop. 117, sec. \,p. 641. Neither the words of this act, or its obvious meaning or intention will extend its operation so as to include final orders or decrees in chancery. It clearly has reference to cases at common law, contradistinguished from chancery decisions, as the whole act taken together and in connection with the words “ final judgment or decisions” conclusively proves. To place upon it any other construction, would be to change the whole mode of proceeding for reversing and correcting errors in the decisions of inferior courts of chancery; and it would also introduce an entirely different rule on the subject, contrary to the principles of the common law; which is never allowed, except by express and positive enactment. In the present instance it would be doing more. It would give a new and unusual remedy, without any legislative action, and that too in derogation of the authority of the Constitution. If these positions be true, then it unquestionably follows that a writ of error will not lie to bring up chancery cases from the decisions of Circuit Courts into this court; and, therefore, the writ of error is dismissed with costs. | [
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Ringo, Chief Justice,
delivered the opinion of the Court:
The only question presented by the record is whether the declaration is sufficient in law; or was the demurrer thereto rightly sustained! The declaration is in point of form strictly and technically right, and we are at a loss to conceive the ground upon which it was adjudged insufficient. The pleader, it is true, in describing the obligation of the defendants, employed language somewhat different from that usually found in the ancient forms and precedents, but the language used is.literally the language of the contract, and imports an an obligation as effective in law as that usually adopted in the precedents, and if it could ever have been objectionable, as matter of form,, it must be conceded that our statute has effectually cured the objection by declaring that “ no person shall be prejudiced by neglect of the ancient forms and terms in pleading; so that the matter fully appear in the process, declaration, petition, statement,or other pleading;” and requiring the parties to express in every demurrer the defect or imperfection of the pleading demurred to; while they are prohibited, by the same statute, from setting out therein any defect or imperfection “that would be cause of special demurrer at common law;” and the court is expressly required to amend every such defect or other imperfection in the pleading “ other than those which the party demurring shall express in his demurrer.” Rev. St. Ark., Ch. 116, S. 59, 60, 61, p. 627-8. The contract, as set forth in the declaration, contains no stipulation for the payment of interest, and therefore, as the interest thereon is prescribed and given by a general law, and can be regarded only as a legal consequence of the failure to pay the debt or discharge the obligation' at maturity, or on the day when it became due, and payable according to law, or the express agreement of the parties, a special averment in relation thereto is unnecessary, and must be regarded as surplusage: because the facts which entitle the party to interest being shewn, the court is bound to know, judicially, what the legal interest is, and pronounce judgment for ifc if the plaintiff obtains judgment for the debt demanded» | [
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Dickinson, Judge,
delivered the opinion of the court:
As to the first objection, the plaintiff in error having in his demurrer made the objection to the proceedings, if there was any thing in his motion, he waived it by demurring; and the only question is upon the demurrer.
The petition conforms strictly to the form prescribed in the statute, not only in setting out a copy of the instrument sued upon, but in every other respect; and the other objection, that it does not appear that Richard II. Yeates is the same person who executed the obligation, bearing the signature of R. H. Yeates, we cannot consider as a substantial legal objection; and we so expressly decided in the case of Webb vs. Jones and Prescott, at the present term of this court, when the same question was raised. We consider the petition sufficient for the plaintiff to maintain his action, and that the demurrer was rightly overruled. The judgment is therefore affirmed. | [
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Ringo, Chief Justice,
delivered the opinion of the Court:
This is an action of debt, founded on the official bond of the defendant, William E. Woodruff, as the Treasurer of this State, and his securities, against all of whom the plaintiff in error, who was also plaintiff in the Circuit Court, in his official character as Auditor of Public Accounts, declares for the penalty of said bond, with a profert, but without setting forth the conditions thereof; and describes the same as a writing obligatory of the defendants, made by them on the 27th day of October, 1836, bearing date on the same day, and “sealed with their, and each of their, respective seals,” whereby they “ acknowledge themselves jointly and severally held and firmly, bound unto James S. Conway, then and now Governor of the State of Arkansas, and his successors in office, in the just and full sum of three hundred thousand dollars, above demanded, to be paid unto the said James S. Conway, Governor of the State of Arkansas, and his successors in office; which said writing obligatory was, and still is, subject to certain conditions thereunder written.” The plaintiff avers, “ that he is Auditor of the State of Arkansas, duly elected, commissioned, and qualified, as the law prescribes, by means whereof, and by force of the statute in such case made and provided, the right of action hath accrued to himself, the said Elias N. Conway, Auditor of Public Accounts of the State of Arkansas, who sues for the use and benefit of the State of Arkansas, as Auditor, as aforesaid, to have, demand of, and sue the said defendants, for the use and benefit of the State of Arkansas, for the sum of three hundred thousand dollars, above demanded;” and assigns as a breach, that the “ defendants did not, nor did either of them, pay unto the said James S. Conway, who is Governor of the State of Arkansas, the said sum of three hundred thousand dollars, demanded as aforesaid, or any part thereof; nor have they, the said defendants, or either of them, although often requested so to do, paid unto the said Elias N. Conway, Auditor of Public Accounts, who sues for the use and benefit of the State of Arkansas, as Auditor as aforesaid, since the right of action (by force of the statute in such case made and provided), hath accrued, as aforesaid, said sum of three hundred thousand dollars, demanded as aforesaid, or any part thereof. But this to do, they, the said defendants, have, and each of them hath, hitherto wholly refused, and still doth refuse, and fail to pay the said sum of three hundred thousand dollars demanded as aforesaid, or any part thereof, to the damage of the said plaintiff, for the use and benefit of the State of Arkansas, five thousand dollars; and, therefore, for the use and benefit of the State of Arkansas aforesaid, he brings his suit, &c.”
All of the defendants named in the declaration, except Cross and Roane, who were not found, and did not appear, entered their ap- ■ pearance; and at the term at which the writ was returnable, prayed oyer of the writing obligatory mentioned in the declaration which was granted, as appears by the record, first, by filing the original bond. But this grant of oyer was afterwards set aside on motion, and oyer granted, “ by filing a copy of the original bond,” to which there does not appear to have been any objection made; and the copy so filed, containing the condition thereunder written, is contained in the transcript of the record returned to this court with the writ of error. Oyer being thus granted, the defendant who had been thus served with process, and had appeared, filed a demurrer to the declaration, to which the plaintiff filed a joinder. Upon which, final judgment was given against the plaintiff, on the 18th day of March, 1839, to reverse which, he has brought the case before this court by writ of error.
The propriety of the judgment given upon the demurrer, is the only question presented by the record and assignment of errors, to which there is. a joinder. In the demurrer, several causes of demurrer are specially stated, which have been urged by the defendants in error upon the argument in this court, and are relied upon as justifying the judgment thereupon given in their favor. They are in substance: 1st, that it does not appear that the Governor’s approval of the bond is endorsed thereon, a's is required by law; 2d, that profert is made of the original bond, whereas it is required by law to be delivered to the Secretary of State, and to be by him hied among the records of his office; 3d, that the oyer granted is not of the original writing obligatory, mentioned in the declaration, or a certified copy thereof; 4th, the obligation sued on, is described as being joint and several, and the writing given on oyer is joint, but not several; 5th, upon an obligation to the Governor, and his successors in office, suit should be instituted in the name of the Governor; and Glh, there is no allegation that the defendants delivered the writing obligatory sued on to the Governor, or the plaintiff.
On the part of the plaintiffs it is insisted, that neither of the grounds of demurrer specially assigned, are available on general demurrer at common law; and under our statute, no special demurrer can be filed, or causes which are only grounds of special demurrer at common law be regarded. The omission of the averment, that the Governor has approved the bond and endorsed his approval upon it, is not, in our opinion, fatal to the declaration, for ex vi termini it either creates or destroys, increases or diminishes the obligation of the contract, which, if it has been in every other respect legally executed, is perfect. The statute requiring the approval of the Governor to be endorsed on the bond, implicitly imposes on the person whose bond is required to be thus approved, the duty of submitting it to the Executive for his approval, and casts upon this high functionary the duty of exercising his judgment as to its sufficiency, in form and substance, as well as the ability of the obligors to pay the amount, for the payment of which, they have thereby stipulated and bound themselves, and of endorsing his opinion thereupon, whether he approves the same. The design of this provision was, as we apprehend, to provide for the public, as well as individuals, on undoubted assurance that the security furnished by the officer, for the faithful performance of his official duties, is perfect, and amply sufficient to indemnify them for any loss or injury which they may suffer, by reason of any failure on his part, to perform his official duties, as enjoined and prescribed by law; but if any person, notwithstanding a dereliction of the duty in this particular, should obtain a commission from the Executive, or qualify in other respects, and proceed to act, and assume to himself the authority and privileges appertaining to such office, although he might and probably would subject himself thereby to a removal from office, if the fault was his, yet to admit the principle that he, or his sureties, are discharged, or never were liable on this contract, for any official non-feasance, mis-fcasance, or mal-feasance, of which he is guilty, whereby the public or any individual is injured, would, in our opinion, be against every principle of reason, of sound morals, and of legal justice, as well as in violation of the salutary and universally admitted principle of the common law, that no man shall be suffered to take advantage of his own wrong; and notwithstanding the statute requires the bond to be approved, and the approval endorsed thereon, before the commission issues, or the person qualifies, or proceeds to discharge the duties of the office, it does not, in our opinion, create a condition precedent, until the happening of which the obligation of the contract remains, as it were, suspended, and does not attach upon the obligors. Such construction would be opposed to the principle of the common law, which holds the obligation perfect so soon as it is executed and delivered; and, in our judgment, this provision of the statute leaves these principles of the common law unchanged. Nor does the law imply, that the omission or refusal of the Governor to endorse such approval on the bond, shall operate as a defeasance or release, whereby the obligation of the contract is ipso facto dissolved. Such doubtless was not the intention of the law, nor are such cons'e-' ( quences comprehended within its legitimate operation. It was, as before remarked, intended not to lessen or destroy the security of the public or individuals, in respect of any act of the officer done or omitted, by which they are or may be injured, but to guarantee to' them a more perfect and ample security; and here we may be permitted to remark, that the construction which we have considered it our duty to give to this provision of the statute, does not impose any hardship on the officer or his security, as they never can be prejudiced thereby, if he does not, in violation of the law, and contrary to his duty, take upon himself the execution of the duties of the office, and therein do. something prohibited, or omit to do something enjoined,, by law, while, on the contrary, the interests of individuals and of the public are preserved and enforced; and we conceive a principle so immoral and so unjust, as to suffer the officer* and his securities hr escape merited responsibility incurred in the course of his official business, simply because he has, in violation of his duty, omitted to obtain the necessary endorsement of the Governor’s approval on the bond, when he has received the full consideration for which the obligation was given, in the enjoyment of the office, and the powers,. principles, perquisites, and honors, incident thereto, cannot be maintained. If it could, the person who has thus illegally intruded himself into office, would be virtually justified in sporting away the sacred rights of others. Therefore, in our opinion, no averment that the Governor had endorsed his approval on the bond, is necessary. The second and third grounds of demurrer specially set forth, are, ih our opinion, clearly untenable; for, although the plaintiff, by making profert of the original writing obligatory, instead of excusing the profert thereof, by showing that the bond was on file of record in the office of the Secretary of State, and therefore not in his possession, or subject to his control, so that he could not produce it in court; or making profert of an attested copy thereof, as he might and perhaps ought to have done, gave to his adversaries an advantage, of which they could have availed themselves by refusing to accept a copy as oyer, or dispense with the production of the original, or plead to the action until it was produced, on their prayer of oyer; yet we are unable to discover the principle upon which the profert can be considered as a defect in the proceedings, of which they can take advantage upon their demurrer to the declaration, which admits the facts as stated therein, so far as they are well pleaded; and certainly pleading the deed with a profert, in strict technical form, notwithstanding it may not be in the power of the plaintiff to produce it, as he is bound to do, when it is so pleaded, cannot, by any rule of law or practice known to us, be considered as prejudicial to, or in any manner endangering the rights of, the defendants, and, therefore, it is not an objection of which they can avail themselves by demurrer; and there is no rule of lawr or practice more clearly and fully established by authority, than that by pleading to the action, (and a demurrer is regarded as a plea to the action), without oyer, every objection to the oyer, as that it has not been granted at all, or has been irregularly, improperly, or insufficiently granted, is waived; and, therefore, the second and third special causes stated as grounds of demurrer are insufficient, and do not in law constitute such an objection to the proceedings, as can be taken advantage of by demurrer to the declaration.
Under the provisions of the statute passed 1st of January, 1816, Ark. Dig., page, 312, which were in force when this suit was instituted, and also at the date of the obligation sued on, suits may be brought and prosecuted on joint' obligations, in the same manner as if such obligations were joint and several; and, therefore, the fourth cause specially assigned as ground of demurrer, is untenable.
The fifth objection specially stated, rests upon the assumption that the suit must be prosecuted in the name of the Governor, to whom,- and his successors in office, the obligation is expressly taken and made payable; instead of the Auditor of Public Accounts, in whose name the suit is instituted. According to the principles of the common law,every action at law must be prosecuted in the name of the party in whom the legal interest in the contract is vested; but this, like every other principle of the common law, is under the control of the Legis-lative authority, and may be modified, changed, or abrogated,, by the Legislature, at will, unless their power is restrained by the constitution. In the exercise of these constitutional powers, the Legislature of this State, by statute approved November 8th, 1836, has authorized suit to be brought “in the name of the Auditor of Public Accounts' for the State of Arkansas, in the Circuit Court, for any demand which the people of the State may have a right to claim.”
This amounts to nothing more than a modification of the legal remedy by suit, in cases where the money claimed would, if recovered, belong to the State. It does not in the slightest possible degree impair, or in any way affect the legal obligation of the contract, or the-respective rights or liabilities of the parties to it. The remedy only is modified, and so far as we know, the authority of the Legislature' to prescribe the form and direct the order of the proceeding in the-courts of justice, under the Constitution of the United States, or of any State, has never been questioned or denied; provided, always,that the obligation of the contract' is not thereby impaired. In the case before us, the averments in the declaration show conclusively,that the suit is by, and in the name of, the Auditor of Public Accounts, for the State of Arkansas, in his official character, and not in his-private or individual right for a demand claimed for the State; and, therefore, the fifth objection is not, in our opinion, fatal to the action.The sixth objection is futile. The plaintiff in this declaration, expressly charges the writing sued on to be the writing obligatory of the defendants named in the declaration. Technically speaking, no .instrument in writing ever becomes the deed, obligation, bond, or -writing obligatory of the obligor or maker, until he delivers it as such; and, therefore, the allegation, that the instrument sued on is the writing obligatory of the defendants, implies the delivery, and is regarded by the law as equivalent to an express averment of the delivery thereof by the defendants, and it is not usual in pleading such instruments, to allege the delivery by a distinct averment.
Having thus briefly noticed and disposed of the causes of demurrer specially assigned, it becomes our duty to consider whether there are other defects, for which the plaintiff’s pleading should be adjudged insufficient on the demurrer thereto; and here we will remark, that the judgment upon the demurrer was given prior to the taking effect of the Revised Statutes, and the propriety thereof must therefore be determined by the pre-existing laws, which were in force at the date of the judgment, and permitted the party demurring to avail himself of any objection to his adversary’s pleading, which would be fatal to it on general demurrer at common law, though not set down specially as the ground of demurrer; and this was the uniform practice, notwithstanding the causes specially assigned were insufficient. And, therefore, if there is any fatal defect apparent upon the face of the proceeding, which would be reached by general demurrer, and this cannot be regarded as any thing different, because the law then in force prohibited the filing of any special demurrer, the judgment must be affirmed.
The record shows that oyer was granted by filing a copy of the original bond; and the oyer thus granted is to be regarded as a part of the previous pleading, and the plaintiff is bound by it as long as it remains of record in the case, and even though it may have been unnecessarily or improperly granted, and the defendants are at liberty to avail themselves of any defect or objection manifest upon or produced by it.
In this case, the copy filed as oyer, as it appears in the transcript of the record certified to this court on the writ of error, shows a contract simply signed with the names of the defendants mentioned in the declaration, but without any seal, or scrawl by way of seal, affixed thereto, which cannot, therefore, be considered a writing .obligatory; and for this reason, it appears to be a different instrument from that-sued on and described in the declaration; and this is a material variance, of which advantage may be taken by general demurrer. Nor is this discrepancy in the least obviate.d or aided by this statement over the signatures .of the defendants, “ witness our hands and seals,” because it is the act .of the party affixing the seal, or scrawl by way of seal, and not the assertion that it is affixed thereto, (which appears upon an inspection of the writing to be untrue), that characterizes the instrument, and constitutes it a writing obligatory or deed.
This discrepancy may have originated with the copyist, who transcribed from the original the copy given as oyer, or the clerk who transcribed the same into the transcript of the copy before us. But however this may be, we cannot judicially know, nor do we in fact know any thing about it more than appears by this trans.cript, in which no diminution has been suggested by either party, and there is no law or rule of praclicé to justify us in presuming a diminution, and awarding a certiorari to supply it, A certiorari is sometimes awarded by the court ex officio for their own satisfaction, or to enable them to affirm, but So far as we know, it has never been done with a view to supply matter, whieh would enable them to reverse the judgment; and it is never so awarded by the court, unless the diminution appears from an inspection of the transcript itself, which is not the case here. We are therefore bound to regard the transcript before us as perfect, and adjudicate the case upon the record as shown by it, upon which it appears manifestly, that there is no error in the judgment. Wherefore, the judgment of the Circuit Court of Pulaski county, given in this case upon the demurrer of the defendants to the declaration of. the plaintiff, ought to be, and is hereby, in all things, affirmed, with costs, " | [
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The defendant in error filed his motion to dismiss this case upon the ground that the plaintiff in error was not a resident of the State, and that he had filed no bond for costs in this court, before suing out a writ of error.
Motion overruled, and held by the court that the 34th chap, of the Revised Statutes did not require any such bond to be filed in the Supreme Court. | [
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RAYMOND R. ABRAMSON, Judge
| derrick London appeals the Arkansas County Circuit Court’s order revoking his suspended imposition of sentence (SIS) on the charge of delivery of cocaine, a Class Y felony. He argues that there was insufficient proof that he inexcusably failed to pay as ordered. We affirm.
London entered a negotiated plea of guilty in the circuit court o,n June 18, 2009. He pled to delivery of cocaine, a Class Y felony. He was sentenced to an SIS of 240 months with conditions that included payment of a $5,000 fine suspended upon compliance of all terms and conditions, and also payment of costs at a rate of $75 a month.
The State first petitioned to revoke London’s SIS in December 2011, alleging that he had violated the terms by failing to make any óf the required monthly payments, being arrested for robbery and failure to appear, and testing positive for phencyclidine (PCP). LUpon motion of the State, the circuit court entered an order on October 10, 2014, nunc pro tunc to August 1,. 2012, dismissing the first petition without prejudice with the requirement that the conditions of London’s suspended sentence be strictly enforced.
On November 19, 2014, the State filed a second petition to revoke London’s SIS, re-alleging the allegations in the first petition to revoke. Additionally, the State alleged that London had violated the conditions of his suspended sentence because he had been arrested for public intoxication, loitering, and possession of instruments of crime. London was arrested on the petition. However, based on his representations to the prosecutor that if released he would receive disability income from which he would make payments toward his fines and court costs and that he would report for the revocation hearing on April 27, 2016, he was released on February 24, 2016. London did not appear for the April 27 hearing.
At the revocation-and-failure-to-appear hearing on September 29, 2016, the only violation addressed was London’s complete failure to pay fines and costs. Both the State and London. stipulated that he had not made any payment on the fines and costs as ordered. London’s suspended sentence was revoked, and the circuit court sentenced him to 10 years’ imprisonment in the Arkansas Department of Correction (ADC). This appeal followed.
To revoke probation or an SIS, the burden is on the State to prove the violation of a condition of the probation or SIS by a preponderance of the evidence. Jones v. State, 355 Ark. 630, 144 S.W.3d 254 (2004). A circuit court may revoke an SIS if it finds by a preponderance of the evidence that the defendant inexcusably failed to comply with a single ^condition of his or her suspension. See Ark. Code Ann. § 16-93-308(d) (Supp. 2015). On appellate review, the circuit court’s findings will be upheld unless they are clearly against the preponderance of the evidence. Nelson v. State, 2010 Ark. App. 549, 2010 WL 2612672. Because the burdens are different, evidence that is insufficient for a criminal conviction may be sufficient for revocation' of probation or SIS. Id. Thus, the burden on the State is not as great in a revocation hearing. Id.
Furthermore, because the determination of a preponderance of the evidence turns on questions of credibility and weight to be given to the testimony, we defer to the circuit court’s superior position. Id. Specifically, we have noted that “[t]he circuit court is not required to believe the testimony of the defendant because he is the person most interested in the outcome of the hearing.” Rhoades v. State, 2010 Ark. App. 730, at 3, 379 S.W.3d 659, 661.
If the alleged violation involves the failure to pay court ordered fines and costs, the court may revoke the suspended sentence if it finds the defendant has failed to make a good-faith effort to pay the obligation. Thompson v. State, 2009 Ark. App. 620, 2009 WL 3153210. While the State has the burden of proving that the failure to pay is inexcusable, once the State has introduced evidence of nonpayment, the burden shifts to the defendant to provide a reasonable excuse for his or her failure to pay. Id. This court reviews the sufficiency of the evidence supporting revocation in the light most favorable to the State. E.g., Bohannon v. State, 2014 Ark. App. 434, at 5, 439 S.W.3d 735, 738.
In the instant case, both the State and London stipulated that he had not made any payment of fines and costs as ordered. London testified that since he pled guilty in 2009, he |4had been disabled and unemployed and had either lived with his sister or been incarcerated for probation violations on another criminal conviction. London also introduced a Social Security Administration (SSA) letter dated August 24, 2015, that stated his date of disability was June 18, 2014, and that his monthly disability benefit of $733 would resume on September 1, 2015. The letter indicated that he had previously received disability payments, but London denied having ever received any disability payments prior to 2016 and testified that his disability payments were suspended while he was incarcerated.
London introduced his ADC “Pen Pack” to show that since he pled guilty in 2009, he had been repeatedly incarcerated for violating the terms of his probation on a separate conviction. He also denied ever having received a lump-sum disability payment retroactive to the date of disability; however, he later equivocated, stating that he needed to “check on that.”
London admitted-to receiving disability payments after his release on February 24, 2016, until he was arrested in June 2016 on the revocation petition. While he also claimed that he attempted to pay $20.00 in April 2016 and that the money order was returned to him because he had mailed it to the wrong address, he did not introduce any evidence to support this claim.
The, circuit court found,' as agreed and stipulated by the parties, that there had been “absolutely no payments made on the obligation contained in the sentence.” The court also found that although the record was unclear whether he had received disability income prior to 2016 due to the periods of incarceration, it was undisputed that he did receive disability income after his release in February 2016 but failed to make any payment.
^Furthermore, the circuit court found London’s testimony that he did not receive a lump-sum disability payment, retroactive to the date of disability, not credible. The circuit court revoked London’s suspended sentence based on these findings. Moreover, as the State asserts in its brief, the introduced SSA letter demonstrates that London was capable of directing the SSA to mail his benefits check directly to him instead of making a direct deposit into his bank account, negating London’s mental disability excuse.
We cannot .say that the circuit court erred, because there was sufficient evidence to-support the court’s finding that London inexcusably violated a condition of his suspended sentence. London did not present a reasonable excuse regarding his nonpayment of fines and costs as ordered. There is also no evidence to support London’s argument that even if he had received the SSA checks, his mental disabilities rendered him incapable of complying with the order to make monthly payments. Accordingly, we affirm.
Affirmed.
Gladwin and Whiteaker, JJ., agree.
. We note the sentencing order filed on October 5, 2016, contains the incorrect date of the hearing as September 28, 2016. | [
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DAVID M. GLOVER, Judge
hLisa Beaty appeals the termination of her parental rights to her son, L.M., born May 13, 2016. Pursuant to Linker-Flores v. Arkansas Department of Human Services, 359 Ark. 131, 194 S.W.3d 739 (2004), and Arkansas Supreme Court Rule 6—9(i), her counsel has filed a no-merit brief purporting to set forth all adverse rulings from the termination hearing and assert ing that there are no issues that would support a meritorious appeal. Counsel has also filed a motion asking to be relieved. Although notified by the clerk of this court of her right to files pro se points of appeal, Beaty has not done so. We affirm the circuit court’s termination of Beaty’s parental rights and grant counsel’s motion to withdraw.
I Standard, of Review
Termination of parental rights is a two-step process requiring a determination that the parent is unfit and that termination is in the best interest of the child. Norton v. Arkansas Dep’t of Human Servs., 2017 Ark. App. 285, 2017 WL 1948236. The first step requires proof of one or more statutory grounds for termination; the second step, the best-interest analysis, includes consideration of the likelihood the juvenile will be adopted and of the potential harm caused by returning custody of the child to the parent. Id. Both steps require proof by clear and convincing evidence, which is the degree of proof that will produce in the finder of fact a firm conviction regarding the allegation sought to be established. Id.
Appellate review for termination cases is de novo, and our inquiry on appeal is whether the circuit court’s finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court, on the entire evidence, is left with a definite and firm conviction that a mistake has been made. Id. In resolving the clearly erroneous question, the reviewing court defers to the circuit court due to its superior opportunity to observe the parties and to judge the credibility of witnesses. Id.
Procedural History
On July 8, 2016, the Arkansas Department of Human Services (DHS) was notified by Karis Chastain with Crimes Against Children Division that L.M. was hospitalized at Children’s Hospital after being punched in the face by his father and suffering a traumatic-brain injury; L.M. also required use of a feeding tube due to his injury. L.M.’s father, Anthony McKown, was jailed for the domestic battery on his son, and Beaty was facing [^charges of first-degree child endangerment and possibly possession of drug paraphernalia. The detective working the case had concerns that neither Beaty or McKown was mentally capable of caring for L.M. DHS took a hold on L.M. on July 9, 2016, due to McKown being incarcerated for L.M.’s injuries and Beaty facing charges for child endangerment. Based on these facts, DHS filed a petition for emergency custody of L.M. on July 12, 2016, and an ex parte order granting DHS emergency custody was entered the same day.
A probable-cause hearing was held on July 15, 2016, and an order was filed the same day continuing custody of L.M. with DHS. In the order, the circuit court found it necessary to continue custody of L.M. with DHS due to the severe injuries L.M. suffered at the hands of his father and because Beaty was being charged with endangering the welfare of a minor, with L.M. as the victim.
An adjudication hearing was held on September 1, 2016. In an adjudication order filed on October 3, 2016, the circuit court found L.M. had been subjected to aggravated circumstances due to a life-threatening injury and being left with McKown, who was a registered sex offender. In the order, the circuit court set forth L.M.’s extensive injuries, as well as testimony from Dr. Karen Farst, an expert in pediatrics and child-abuse pediatrics. Dr. Farst testified as follows: L.M. likely would not have survived without immediate medical attention; very aggressive treatment was required to save his life; his injuries stemmed from physical abuse; he had permanent brain damage and suffered from seizures because of his injuries; and he would have long-term impairment from the injuries. The circuit court specifically found McKown caused L.M.’s injuries and had subjected him to aggravated circumstances due to extreme cruelty and life-threatening injuries. It further 14found Beaty had subjected L.M. to aggravated circumstances by leaving him in McKown’s care, although he was a registered sex offender! Neither Beaty nor McKown appealed the adjudication-order findings.
DHS filed a motion to terminate reunification services on October 6, 2016, on the basis that L.M. had been subjected to aggravated circumstances by both parents. Then, on November 8, 2016, a permanency-planning hearing was held, as well as a hearing on the no-reunification services motion.- The circuit court filed both a no-reunification order and a permanency-planning order on November 18. The basis for the no-reunification order was that both parents had subjected L.M. to aggravated circumstances. In the permanency-planning order, the circuit court determined the goal of the case was to be changed to adoption; it also found DHS had made reasonable efforts to provide family services.
DHS filed a petition to terminate parental rights on December 5, 2016, alleging termination was in' L.M.’s best interest. For grounds to terminate Beaty’s parental rights, DHS alleged the fact the juvenile had been found dependent-neglected as a result of neglect or abuse that could endanger the life of the child and was perpetrated by the juvenile’s parent or parents, the subsequent-factor ground, and the aggravated-circumstances ground. On March 28, 2017, after a hearing on February 16, 2017, the circuit court filed an order terminating Beaty’s parental ’rights on all three bases, finding termination was in L.M.’s best interest. Beaty filed a; timely notice of appeal.
| ¿Termination Hearing Testimony
Extensive medical and lay testimony was introduced at the termination hearing. Dr. Farst testified by telephone at the termination hearing as an expert in the areas of child-abuse pediatrics and general pediatrics. She described L.M.’s injuries: extensive bruising to the left side of his head, as well as some bruising on his lower back, buttocks, and knee; a large, left-sided skull fracture; a subdural hemorrhage on the surface of the brain as well as between the two lobes of the brain; retinal hemorrhages in the back of both eyes; and a retinal fold on his left eye. She further explained L.M. had developed encephalo-malacia, or areas of permanent brain damage, as a result of the abuse; he had to remain on medication to control seizures related to his brain injury; and he had to have a feeding tube (gastrostomy) placed in his stomach because he did not regain the ability to eat on his own and support his nutrition. She attributed L.M.’s injuries to the result of physical abuse. Dr. Farst then explained that due to the areas of permanent brain injury, L.M. suffered developmental delays; his brain was not growing as a normal infant’s’ brain would grow; and because the brain was not growing due to injury, the skull was not receiving signals to grow and expand, and therefore the suture lines between the plates of the skull had prematurely fused. The' doctor stated the problems with a premature fusing of the suture lines were that, even though L.M.’s brain was not growing as a normal infant’s brain, there should . still be some additional brain growth in the areas not damaged by the abuse; however, when the skull bones fuse too early, it restricts the healthy part of L.M.’s brain from growing, thus limiting the growth and development of the healthy parts of his brain. She explained the early skull fusion could also cause increased pressure to build up in the brain,.which could affect vital | (-.functions such as normal breathing and heart rate; this issue would require future surgical intervention in order to actually create some separation between the skull plates to allow there , still to be a period of brain growth. A CAT scan of L.M.’s brain was compared to a CAT scan of a healthy infant brain; much of the area of L.M.’s brain was dark black, indicating permanent brain damage, and his skull was misshapen. Dr. Farst reiterated if L.M. had not received medical care, he would not have survived the physical abuse and the resultant brain injuries; that he had to be placed on life support in order to survive his injuries. As for a long-term prognosis, Dr. Farst could only say that due to the areas of permanent brain damage, L.M. would have some degree of long-term developmental struggle; he was facing at least two “very significant" surgeries to reshape his skull; and he was at risk for long-term complications of problems with his brain, such as seizures, and abnormal development.
Rachel Reader, L.M.’s assigned caseworker, testified L.M. had been in only one placement since coming into care, and that placement was a possible adoptive one. Reader stated she absolutely believed L.M. was an adoptable child. It was her opinion L.M. could not be safely returned to Beaty because Beaty did not believe L.M.’s injuries were as extensive and severe as they actually were. Reader, felt Beaty thought DHS was overexaggerating L.M.’s injuries, Reader said, she did not believe Beaty took L.M.’s injuries seriously, and she did not seem to believe McKown had committed the injuries. Furthermore, Reader stated Beaty had not been completely compliant with DHS. Reader believed L.M, was safe with his foster family and their understanding of his medical conditions.
|7As the caseworker, she testified she was unsure if L.M.’s paternal grandparents would be an appropriate placement for L.M. She explained that the paternal grandparents had placed a letter from McKown in a basket of Christmas gifts meant for L.M., even though there was a no-contact order between McKown and L.M., and this alarmed L.M.’s foster mother.
Anthony McKown testified he was currently incarcerated on a first-degree domestic-battery charge. He admitted he was a registered sex offender and- had ■ previously pled guilty to second-degree sexual assault, domestic battery, and fourth-degree sexual assault. He admitted he sent a Christmas card to L.M., even though he thought it might be a violation of the no-contact order, because he missed L.M.'
Holly, L.M.’s foster mother, testified it could be a struggle to care for all of L.M.’s health issues at times, detailing his developmental delays as well as the manner in which L.M. required his food to be taken through the gastrostomy tube. However, she further testified that, if parental rights were terminated, her family wanted to adopt L.M. because he had “stolen” their hearts. She said his medical issues just made them love him more; that they understood L.M. might need lifetime care but they were definitely prepared to take that on; and L.M. was a great baby. Holly stated that she had witnessed visits be tween L.M. and his paternal grandparents, and she was willing to allow continued visitation if she was able to adopt L.M.
Beaty testified on her own behalf. She stated she was living with her mother and stepfather in ■ the house where she had lived for most of her life. Beaty blamed L.M.’s problems on being born two weeks early and haying low platelets as a result of intrauterine | Rgrowth restriction (IUGR), which caused bruising. She said she understood L.M.’s brain injuries but they did not matter to her—she only wanted him to be healthy and happy. Beaty said that mental-health problems ran in her family, but she did not care if. he was special or not, they would “work it out,” Beaty stated she understood L.M. would need a lot of medical care for the rest of his life, but she could provide that care. It was her goal to open an account for L.M. and put money into it for his.college education. She claimed she was taking the case seriously, but she said she did hot cause the injuries and did not believe L.M. was struck by something or someone to cause the injuries; she believed his problems were caused by IUGR. Beaty did not believe McKown had abused their child because she had not seen McKown hit L.M.
Phyllis McKown, L.M.’s paternal grandmother, testified she and her husband had been visiting with L.M. and desired to continue visits if possible. She detailed the items she had been able to provide to L.M.’s foster mother for his benefit, such as a stroller, clothing, diapers, and toys. She believed L.M. was in a good foster home that was meeting all his needs. She admitted she had placed a Christmas card from her son in with Christmas gifts for L.M., but she claimed she told the DHS worker that if it was not appropriate, to not give the card to L.M.’s foster mother. She testified that while she would love to adopt L.M., it would not be in his.best interest..She knew L.M. would need more care than a normal child, and she did not believe his parents would be able to provide what L.M. needed.
The circuit court terminated Beaty’s parental rights on all bases alleged. Furthermore, it specifically ordered that the paternal grandparents were not to be allowed to have visitation, and refused to grant a last visit between L.M. and his parents.
| ¿Termination of Parental Rights
While the circuit court terminated Beaty’s parental. rights on three bases, only one ground must be proved. Baxter v. Arkansas Dep’t of Human Servs., 2017 Ark. App. 508, 2017 WL 4399676. One of the grounds relied upon by the circuit court, was that of aggravated circum.stances. The finding of aggravated circumstances was made by the circuit court in the adjudication order, which is an appeal-able order. A challenge to a finding of abuse or aggravated circumstances must be made, if at all, in an appeal from the adjudication hearing. Hannah v. Arkansas Dep’t of Human Servs., 2013 Ark. App. 502, 2013 WL 5272944. Beaty never appealed the. aggravated-circumstances finding from the adjudication hearing; therefore, she cannot now challenge that finding at this stage of the case. The unchallenged finding of aggravated circumstances provides the statutory ground to support the termination of Beaty’s .parental rights.
The circuit court also found it in L.M.’s best interest to terminate Beaty’s parental rights. A best-interest ■ finding must be based on the trial court’s cpnsid-eration of at least two factors: (1) the likelihood that the child will be adopted if parental rights are terminated, and (2) the potential harm caused by continuing contact with the parent. Baxter, supra. It is the overall evidence—not proof of each factor—that must demonstrate termination is in the child’s best interest. Baxter, supra.
As to the adoptability aspect of the best-interest analysis, the caseworker testified that L.M. was adoptable and that his foster placement was interested in adopting him, even given his medical needs. His foster mother confirmed that her family wished to adopt L.M. if parental rights were terminated. Regarding potential harm, Beaty’s testimony indicated that she did not fully grasp the serious nature of L.M.’s medical injuries or the rigorous daily care | inL.M. would require. She refused to believe that McKown inflicted the grievous injuries on L.M., believing instead that L.M.’s problems were caused by IUGR. Furthermore, despite Dr. Farst’s explanation of L.M.’s injuries, Beaty testified she was going to open an account for him so that he could go to college. This demonstrates a marked lack of understanding on Beaty’s part of the seriousness of L.M.’s injuries and the level of care he would require for his 'lifetime, which Beaty was not prepared to provide. The trial court’s determination that it was-in L.M.’s best interest for Beaty’s parental rights to be terminated was not clearly erroneous.
There were several rulings adverse to Beaty that were not discussed by counsel. However, even if an adverse ruling is omitted from a no-merit brief in a termination case, we may affirm' if the ruling would clearly not constitute k meritorious ground for appeal. Brown v. Arkansas Dep’t of Human Servs., 2017 Ark. App. 303, 521 S.W.3d 183. This is the case regarding the omitted adverse rulings in this case.
There were three instances where the circuit court considered testimony to be hearsay; on two occasions, the circuit court sua sponte interrupted questioning and told the witnesses they could not testify as to what someone else said because it was hearsay, and on the third occasion, DHS objected on the basis of hearsay. None of these evidentiary rulings were an abuse of discretion, and they could not provide a meritorious ground for reversal.
The trial court sua sponte admonished Beaty’s counsel that she could not testify for her client and also cut off Phyllis McKown's testimony about IUGR babies on cross-examination when Beaty’s counsel asked McKown where she had received her medical h graining and McKown said she had no medical training. Even if these instances could be construed as adverse rulings, they would not provide a meritorious basis for reversal.
After examining the record and Beaty’s counsel’s brief, we have determined that this appeal is wholly without merit. Therefore, we affirm the order terminating Beaty’s parental rights and grant her counsel’s motion to withdraw.
Affirmed; motion to withdraw granted.
Harrison and Vaught, JJ., agree.
. The parental rights of L.M.’s father, Anthony McKown, were also terminated; however, he is not a party to this appeal.
. Ark. Code Ann. § 9-27-34 1(b)(3)(B)(vi), (vii), and (ix)(3) (Repl. 2015). | [
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DAVID M. GLOVER, Judge
I,This'is an appeal from a■ declaratory-judgment action. Paul Meredith, Richard Meredith, and John Posey (shareholders) are shareholders of Ashley Bancstock Company (ABC). These shareholders demanded to inspect and copy certain records of ABC pursuant to Arkansas Code Annotated section 4-26-715 ■ (Repl. 2016). Instead of providing the requested records, ABC sued them in Ashley County Circuit Court seeking declaratory relief regarding the nature and extent of the records the shareholders were entitled to inspect and copy pursuant to the statute. The circuit court found the shareholders were entitled to all the records they sought, and ABC appealed. We affirm.
I. Background
The proper interpretation of Arkansas Code Annotated section 4-26-715.is the crux of this appeal. The pertinent language of this statutory section provides:
(b) Any person who shall have been a shareholder of record for at least six (6) months immediately preceding his or her demand, upon written demand stating the purpose thereof, shall have the right to examine, in [{.person or by agent or attorney, at any reasonable time, for any proper purpose, its books and records of account, minutes, and record of shareholders and to make extracts therefrom.
(c)(1) Upon refusal by the corporation or by an officer or agent of the corporation to permit an inspection of the corporation’s books, records of account, minutes, or record of shareholders, the person making demand for inspection may file a civil action in the circuit court of the county in which the corporation maintains either its principal place of business or its registered office for the purpose of securing an order of the court directing the corporation, its officers, and agents to permit the requested inspection.
(2) The proceeding shall be advanced upon the docket of the court; and the court shall hear the parties summarily; by affidavit or otherwise.
(3) If the applicant establishes that he or she is qualified and entitled to the inspection, the court shall grant an order permitting the inspection, subject to any limitations which the court may prescribe; and the court may grant such other relief as to the court may seem just and proper.
(4) The court may deny or restrict inspection if it finds that the shareholder has improperly used information secured through any prior examination of the books and records of accounts or minutes, or record of shareholders of the corporation or of any other corporation, or that he or she was not acting in good faith or for a proper purpose in making his or her demand.
On November 6, 2014, attorney Richard Griffin sent a demand letter to ABC on behalf of the shareholders seeking certain records of ABC; its subsidiary, First National Bank of Crossett (FNBC); and its former subsidiary, First Community Bank of Crawford County (FCBCC) pursuant to Arkansas Code Annotated section - 4-26-715. The shareholders sought to inspect records from January 1, 2006, to November 6, 2014. The demand letter stated ABC had reported significant losses and incurred substantial expenses since 2006 that the shareholders believed were attributable to the acquisition,’ operation, and sale of FCBCC Land significant loan write-offs by FNBC. The shareholders’ stated purpose for inspection of the records was to review the actions of the respective directors and officers of ABC, FNBC, FCBCC, and others to determine if those directors and officers and/or others -may-have breached the duties they owed, and continue to owe, to ABC and its shareholders, and whether legal action against those directors and officers and/or others is warranted to recover assets of ABC that have been written off and lost by ABC.
ABC did not release the requested records. Instead, on November 17, 2014, it filed a lawsuit seeking declaratory relief to determine the rights of the parties under Arkansas Code Annotated section 4-26-715. In its complaint, ABC alleged the shareholders requested highly sensitive, confidential, and proprietary information. It asked the circuit court to consider whether the shareholders sought' -to inspect records for a proper purpose and to determine the extent of information it was required to provide. In addition, ABC sought a protective order to enjoin the shareholders, and their counsel from disseminating the information they received to third parties.
Shortly thereafter, on December 8, 2014, ABC offered to tender certain records to the shareholders if they signed a confidentiality agreement. The shareholders refused to sign the confidentiality agreement because it imposed severe monetary penalties for violation.
On December 9, 2014, the shareholders propounded interrogatories and requests for production on ABC. ABC objected and sought a protective order because the information the shareholders requested in discovery mirrored the information requested in the demand letter that served as the basis of the declaratory-judgment action.
I/The shareholders answered ABC’s declaratory-judgment complaint on January 14, 2015. In their answer, the shareholders asserted their demand was proper in all respects and requested that ABC be required to make all requested information and documents available for inspection and copying.
Later, on May 26, 2015, the shareholders filed a notice of deposition duces tecum seeking discovery of essentially the same records. ABC filed a motion for protective order from the deposition. In response, the shareholders filed -their own motion for protective order seeking to have ABC enter into a confidentiality agreement and provide the requested' documents. The shareholders also filed-a motion to compel ABC to answer discovery.
The circuit court held a motion hearing on July 14, 2015. It considered the various motions for protective orders and the shareholders’ motion to compel. The hearing was adjourned without a ruling.
The circuit court held a trial on the merits of ABC’s declaratory-judgment complaint on November 12, 2015. The trial took place in the judge’s chambers, and no witnesses were allowed to testify. During the trial, the circuit court orally granted the shareholders’ motion to compel. At the conclusion of the trial, the circuit court found the shareholders were entitled to all the records that, they had requested. The circuit court instructed counsel -for the shareholders to prepare a proposed judgment.
On January 7, 2016, ABC filed a motion objecting to the entry of the proposed judgment and. requesting that the court make findings of fact and conclusions of law pursuant to Arkansas Rule of Civil Procedure 52. The motion was denied.
|fiA judgment was entered on January 28, 2016. The circuit court found the shareholders had a proper purpose for inspecting the requested records and that their demand was made in good faith. The circuit court ordered ABC to produce for inspection all documents requested by the shareholders. ABC timely filed its notice of appeal of the judgment on February 1, 2016. Thereafter, ABC filed an amended notice of appeal on February 19, 2016, from the order denying its motion for findings of fact and conclusions of law pursuant to Rule 52.
. On.appeal, ABC advances several arguments in support of reversal. ABC .argues, generally that the circuit court erred by finding that Arkansas Code Annotated section 4-26-715 required it to produce all the records the shareholders requested and by committing several errors during the proceedings.
II. The Statute
This appeal requires us to interpret Arkansas Code Annotated section 4-26-715, ABC contends the circuit court erroneously found that Arkansas Code Annotated section 4-26-715 required it to produce the records the shareholders requested. Particularly, ABC argues the circuit court erred in finding the statute (1) required it to produce sensitive financial records that spanned a nine-year period; (2) entitled the shareholders to inspect and copy the records of FNBC and FCBCC; and (3) entitled the shareholders to copies of liability-insurance policies for ABC, FNBC, and FCBCC.
Issues of statutory interpretation are reviewed de novo. Holbrook v. Healthport, Inc,, 2014 Ark. 146, 432 S.W.3d 593. The basic rule of statutory construction is to give effect to the intent of the- legislature. Id. "When interpreting a statute, we must construe it just as | ñit reads, giving the words their ordinary and usually accepted meaning in common language. Gerber Prods. Co. v. Hewitt, 2016 Ark. 222, 492 S.W.3d 856. Words cannot be inserted, under the guise of interpretation, to add a significant additional qualification to the law enacted by the General Assembly. Brandt v. Willhite, 98 Ark. App. 350, 255 S.W.3d 491 (2007). If the language in a statute is clear and unambiguous and conveys a clear and definite meaning, it is unnecessary to resort to the rules of statutory interpretation. Holbrook, supra.
As a preliminary matter, we acknowledge that a fundamental issue presented in this appeal is whether ABC or the shareholders had the burden of proof. ABC argues that the shareholders had the burden of proof because the statute "requires the applicant seeking to inspect records to establish that he or she is qualified and entitled to the inspection by demonstrating, among other things, a proper purpose for inspection. Ark. Code Ann. § 4-26-715(b) & (c)(3). The shareholders argue that because ABC-filed the lawsuit, it had the burden of proving that they sought the records for an improper purpose. We agree with ABC. The statute clearly and unambiguously provides that the shareholders bear the burden of proving entitlement to inspection.
With the burden of proof estaba lished, we consider ABC’s argument that the shareholders failed to prove a proper purpose - to inspect ABC’s records. - Any shareholder “shall have the right to examine” the records of a corporation “for any proper purpose.” Ark. Code Ann. § 4-26-715(b). The circuit court found, based on the-joint trial stipulations, the shareholders had proved a proper purpose to inspect the requested records.
|7The joint stipulations included the shareholders’ demand letter that explained their purpose for .the request. That letter provided that ABC had reported significant losses and incurred substantial expenses since 2006 that ,the shareholders believed were the result of the acquisition, operation, and sale of FCBCC and significant loan write-offs by FNBC. The shareholders stated their demand was made in good faith and that they were entitled to review the actions of the respective ■ directors and officers of ABC, FNBC, FCBCC, and others to determine if those directors and officers • and/or others may have breached the duties they Owed, and continue to owe, to ABC and its shareholders,- and whether legal action against those directors and officers and/or others was warranted.
ABC argues that the shareholders’ stated purpose is insufficient to demonstrate a proper purpose for examination of the requested records pursuant to Arkansas Code Annotated section 4-26-715. In support of its argument, ABC relies on case law from other jurisdictions, Specifically, ABC cites cases that require shareholders to prove credible evidence of wrongdoing to warrant investigation. See Cain v. Merck & Co., Inc., 415 N.J.Super. 319, 1 A.3d 834 (2010); W. Coast Mgmt. & Capital, LLC v. Carrier Access Corp., 914 A.2d 636 (Del. 2006). Additionally, ABC urges our court to consider the scope of the requested examination and the inconvenience and financial burden it could place on a corporation and hold that a court should exercise its power with great care to safeguard the, interest of the corporation and all of its shareholders. See Abdalla v. Qadorh-Zidan, 913 N.E.2d 280 (Ind. Ct. App. 2009).
[«As the shareholders emphasize, other jurisdictions do not impose these stringent requirements. Other jurisdictions merely impose on shareholders a requirement that they have a good-faith belief in mismanagement to establish a proper purpose for inspection. See Meyer v. Bd. of Managers of Harbor House Condo. Ass’n, 221 Ill.App.3d 742, 164 Ill.Dec. 460, 583 N.E.2d 14 (1991).
•We are convinced the shareholders’ interpretation is the proper one. To interpret Arkansas Code Annotated section 4-26-715 in the way in which ABC suggests would be contrary to our rules of statutory construction. Again, when interpreting a statute, we must construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Gerber Prods. Co., supra. Words cannot be inserted, under the guise of interpretation, to add a significant additional qualification .to the law enacted by the General Assembly. Brandt, supra. This statute includes no language requiring a shareholder to include specific allegations of wrongdoing in order to be entitled to records. Only a proper purpose must be established. Accordingly, the circuit court did not err in finding the shareholders’ stated purpose complied with the statute.
In addition, ABC challenges the nine-year time frame for which the circuit court required it to produce records for inspection. ABC argues that the shareholders should not have been allowed to inspect nine years of records because they alleged a breach of fiduciary duty, which carries a three-year statute of limitations. They further contend the nine-year time frame placed an overwhelming burden on it.
| ¡,The shareholders respond by referring to the statute itself. Arkansas Code Annotated section 4-26-715. imposes no time limit on the inspection of records. The rules of statutory construction require that a time limit cannot be assumed. See Gerber Prods. Co., supra. The shareholders further mention that allowing shareholders to obtain records dating back only to the relevant statute of limitations would be improper because a statute of limitations can be tolled in some instances and that shareholders do not necessarily seek to inspect records for litigation. We agree that the statute authorized the shareholders to seek the nine years of records they requested;
Next, ABC challenges the circuit court’s decision requiring it to produce records of FNBC, its subsidiary, and FCBCC, its former subsidiary.
We first consider whether Arkansas Code Annotated section 4-26-715 requires a corporation to produce records of its subsidiaries. ABC argues that it should not have to provide records of its subsidiaries because they were not parties to the litigation. ABC highlights caselaw that requires a showing of fraud to entitle a shareholder to inspect a subsidiary’s books. Saito v. McKesson HBOC, Inc., 806 A.2d 113 (Del. 2002). By contrast, other jurisdictions require a corporation to produce records of its subsidiaries because they are assets of the corporation. See Danziger v. Luse, 103 Ohio St.3d 337, 815 N.E.2d 658 (2004); Meyer v. Ford Indus., Inc., 272 Or. 531, 538 P.2d 353 (1975).
Again, we are persuaded that the shareholders’ interpretation is proper. Because subsidiaries are assets of a corporation, their books and records are corporate records. By the plain language of the statute, they are subject to inspection. We hold the statute authorizes a shareholder to inspect records of a corporation’s subsidiaries.
|10ABC aiso argues that the circuit court erred by requiring it to produce nine years of records of its former subsidiary, FCBCC. ABC reminds our court that the parties stipulated that ABC owned FCBCC from October 31, 2006, to January 31, 2014, but that the shareholders requested records from January 1, 2006, to November 6, 2014. It contends,- for the time that it did not own FCBCC, it could not have control over FCBCC’s records; thus, the circuit court erred when it required ABC to produce books and records for this period. We are not influenced by this argument. A corporation is required to produce “its books and records of account” after a proper demand from a shareholder. Ark. Code. Ann. § 4-26-715(b). We interpret this provision to mean that a corporation must provide to shareholders only the books and records it possesses.
Finally, ABC argues that Arkansas Code Annotated section 4-26-715 does not authorize the shareholders to inspect copies . of its liability-insurance policies and that the circuit court erred by finding that it did. ABC contends liability-insurance policies are not books and records of account within the meaning of the statute, and the shareholders failed to prove a proper purpose for the request of the insurance policies.
We begin by considering whether liability-insurance policies are books and records of account. ABC looked to other jurisdictions for guidance on the meaning of books and records of account. In Pederson v. Arctic Slope Regional Corporation, Alaska’s supreme court held that books and records of account “encompasses monthly financial statements, records of receipts, disbursements and payments, accounting ledgers, and other financial accounting documents.” 331 P.3d 384, 386-87 (Alaska 2014). ABC utilizes the Pederson case to attempt to demonstrate that insurance policies are not books and records because they are not |nfinancial documents, and ABC cautions against a definition of books and records that is overly broad because it could lead to harassing fishing expeditions.
Our reading of the Pederson case leads us to a different conclusion. The items catalogued as books and records of account in Pederson are not an exhaustive list, and notably, the inspection of liability-insurance policies was not at issue. Moreover, the language of the Pederson case provides that a “shareholder’s right is an important method for monitoring agent performance and enhancing principal control over corporate agents.” Id. at 393. We interpret the Pederson case to impose a broad definition of books and records to protect shareholders’ interests.
The shareholders direct our court to other jurisdictions that have similarly adopted a broad definition of books and records of account. The Oregon Supreme Court in Meyer v. Ford Industries, Inc., held that the term “ ‘books and records of account’ should be the subject of a broad and liberal construction so as to extend to all records, contracts, papers and correspondence to which the common law right of inspection of a stockholder may properly apply.” 272 Or. 531, 538 P.2d 353, 355 (1975).
We conclude that a broad definition of the term books and records of account is proper. Courts tend to broadly define the term so that shareholders’ rights are protected. Adopting this approach, we hold liability-insurance policies are books and records of account -within the meaning of the statute. Insurance policies are contracts. Lumbermen’s Mut. Cas. Co. v. Moses, 224 Ark. 67, 271 S.W.2d 780 (1954). And contracts are business records pertinent to the- operations of a corporation.
|12ABC further argues that if liability-insurance policies are books and records of account, the shareholders failed to prove their proper purpose for inspecting them as required by the statute.
ABC contends the statements in the shareholders’ demand letter were insufficient to show a proper purpose for the inspection of liability-insurance policies. ABC offers that liability-insurance policies are normally disclosed only in cases in which a judgment must be satisfied, and this is a declaratory-judgment action in which no money damages are sought. In response, the' shareholders assert that a review Of the insurance policies as well as the other records requested are pertinent to an investigation of corporation management, specifically whether ABC breached its fiduciary duties.
We previously concluded that shareholders need not present evidence of mismanagement to establish proper purpose. They must demonstrate only a good faith belief in mismanagement. The presence or absence of a liability-insurance policy may be pertinent to issues of fiduciary duty. Accordingly, we hold the liability-insurance policies are subject to inspéction and copying by the shareholders.
III. Error in the Proceedings
ABC also advances several arguments in favor of'reversal that stem from the proceedings' themselves. Specifically, ABC argues that the circuit court abused its discretion by (1) conducting the trial in chambers, (2) refusing to allow witnesses to testify, (3) granting the shareholders’ motion to compel during the trial, and (4) ■refusing its request for findings of fact and conclusion of law pursuant to Arkansas Rule of Civil Procedure 52. As was discussed in oral argument, an overarching question regarding these procedural issues is | ^whether ABC was denied the right to a fair trial. We conclude it was not and hold that there is no meritorious, procedural ground for reversal.
First, we consider whether the circuit court abused its discretion by refusing to allow ABC to call G. Gerald Crawford as a witness. When ABC’s request to call Crawford was denied, it proffered his testimony. The circuit- court’s judgment included a finding that, had the proffered testimony been admitted, it would not have affected the ruling. .Our court will not reverse . a circuit court’s evidentiary ruling absent an abuse of discretion and a showing of prejudice. Dodson v. Allstate Ins. Co., 345 Ark. 430, 47 S.W.3d 866 (2001). Because ABC cannot demonstrate any prejudice that stemmed from the exclusion of Crawford’s testimony, we affirm on this point. Furthermore, we acknowledge the statute contemplates that a court faced with determining whether shareholders are entitled to récords “shall hear the parties summarily, by affidavit or otherwise.” Ark. Code Ann. 4-26-715(c)(2). Thus, by the plain language of the statute, the' circuit court was not required to allow testimony.
Next, we direct our attention to the circuit court’s decision to hold the trial in chambers over ABC’s objection. All trials must be conducted in public. Ark. Code Ann. § 16-10-105 (Repl. 2010). Furthermore, “the public has every right .to ascertain by personal observation whether its officials are properly carrying out their duties responsibly and capably administering justice.” Commercial Printing Co. v. Lee, 262 Ark. 87, 95, 553 S.W.2d 270, 274 (1977).
The shareholders contend the public was not .excluded from attending the in-chambers trial and that anyone could have entered and observed the proceedings. We are |unot particularly persuaded by the shareholders’ argument. Nevertheless, we acknowledge that the trial was transcribed by a court reporter, and accordingly, the public has access to the proceedings so that it may ascertain whether the court was properly carrying out its duties responsibly. In addition, counsel for ABC admitted in oral argument that he could not say whether the in-chambers trial affected the outcome of the case. We conclude no prejudice resulted from the in-chambers trial and affirm on this point.
ABC also argues that the circuit court erred by granting the shareholders’ motion to compel during the trial. This issue is not preserved for our review. Although ABC accurately represents the circuit court’s oral ruling on the shareholders’ motion to compel, it was never reduced to writing. An oral order announced from the bench, does not become effective until reduced to writing and filed. Nat’l Home Ctrs., Inc. v. Coleman, 370 Ark. 119, 257 S.W.3d 862 (2007).
Finally, ABC contends the circuit court erred by denying its request for findings of fact and conclusions of law pursuant to Arkansas Rule of Civil Procedure 52. Compliance with Rule 52 is mandatory, and findings' and conclusions pursuant to Rule 52 “should be specific enough to enable an appellate court to understand the factual and analytical process by which the trial court reached its decision.” CenterPoint Energy Gas Transmission Co. v. Green, 2012 Ark. App. 326, at 5, 413 S.W.3d 867, 871. However, “the rule does not place a severe burden upon the trial judge, for the judge needs only to make brief, definite, and pertinent findings of fact and conclusions upon the contested matters.” Id.
The circuit court’s judgment included findings of fact, and conclusions of law. It provided that the shareholders had a proper purpose for their demand and that they made hsthe demand.- in good faith. The judgment further stated that the shareholders were qualified and entitled to inspect and make copies of all requested documents. These findings are sufficient to comply with Rule 52, and we affirm on this basis, . .
Affirmed.
Virden and Brown, JJ., agree.
. ABC emphasizes that in remarks from the bench, the circuit court admitted that it had not read the stipulations, However, the circuit court’s judgment-provides that it relied on the joint stipulations, and a circuit court’s written order controls over its oral pronouncements. See Nat’l Home Ctrs. v. Coleman, 370 Ark. 119, 257 S.W.3d 862 (2007).
. We acknowledge the circuit court’s order found ABC would bear only the burden of costs associated with copying documents dat- . ed November 6, 2011, to present, and the shareholders would bear the costs associated with- copying all documents dated prior to November 6, 2011. | [
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RITA W. GRUBER, Chief Judge
I,Sherry Rickman appeals from the Crit-tenden County Circuit Court’s order granting the Arkansas Department of Human Services’ motion to cease reunification services. On appeal, Rickman argues that the evidence was insufficient to support the circuit court’s finding that she subjected her child to aggravated circumstances. We affirm.
Although DHS had been involved with the family since 2008, this case began on May 13, 2014, when the Department of Human Services (DHS) assumed emergency custody of K.R. (born August 23, 2007) based on Rickman’s illegal drug use. Rick-man tested positive for drugs and was wearing a morphine patch that had not been prescribed to 12her. The court adjudicated KR. dependent-neglected after an August 12, 2014, hearing during which the parties stipulated to dependency-neglect based on “inadequate supervision due to the mother’s use of morphine without a prescription.” The goal was set as “return to mother/permanent-relative custody/adoption.” The case was continued several times for good cause, and the circuit court retained this goal in a review order entered on January '27, 2015. The court also found that DHS had made reasonable efforts to provide family services and finalize the case plan. Thé court specifically mentioned medical services, PACE evaluation, parent-child visits,, home visits, and drug screens. The court ordered Rickman to submit to random drug screens and to remain drug free. -
The circuit court entered a permanency-planning order on June 18, 2015, and set the goal of the case as authorizing a plan to place KR. in the custody of a parent, guardian, or custodian. The court found that Rickman had complied with'the case plan, completed parenting classes and outpatient treatment, participated in mental-health counseling, maintained adequate income, visited with KR., and submitted to random drug screens. The court also found that Rickman had tested positive for amphetamines but had provided a prescription. The court ordered DHS to provide a referral for a drug-and-alcohol assessment within 10 days, hold a staffing within 45 days, complete a home study of the grandmother's home, and conduct an inspection of Rickman’s home. The case was scheduled for an additional hearing to be held on August 24, 2015, but was again continued several times.
On May 12, 2016, DHS filed a petition for termination of parental rights, which the circuit court denied in an order entered on August 9, 2016, after a hearing held on June 14, |a2016. In a subsequent permanency-planning order entered on September 20, 2016, the court continued the goal of reunification with Rickman with a concurrent goal of adoption and termination of parental rights. The court found Rickman to be in compliance with the case plan except for being “positive for amphetamines twice since the last hearing.”
On November 17, 2016, DHS filed a motion for no reunification services, alleging that there was little likelihood of successful reunification. On November 28, 2016, Rickman filed a motion in limine to exclude any evidence at the no-reunification hearing regarding facts or issues that arose on or before June 14, 2016, the date of the termination hearing, as barred under the doctrine of res judicata. The court granted Rickman’s motion in part, stating that, at the hearing, it would only consider admissible, relevant evidence that occurred after June 14, 2016, but that it would also consider prior findings of the court made over the entire course of the case.
The no-reunification hearing was held on February 9, 2017. The court entered an order on March 14, 2017,' finding that it was not possible to return K.R. to Rick-man. The court found by clear and convincing evidence that there was little likelihood that further services to the family would result in'successful reunification and that it was in KR.’s best interest to terminate further reunification services. The court found, that K.R. “desperately need[ed] stability and continuity.” Specifically, the court found that there had been a. lack of stability in Rickman’s home “with significant ongoing issues -with clutter and trash, which the court finds would be hazardous to a young child, and not safe living conditions.” The court also found a lack of stability in Rickman’s relationship with Johnny Underwood, “in which there have been at least two instances of domestic violence since June 14, 2016, . [and] I ¿excessive alcohol abuse.” The court noted Rickman’s statements to her therapist that it was an “emotionally and. physically abusive relationship.” Although the court recognized that Underwood had moved out of Rickman’s home, it noted that he continued to visit and contact Rickman two or three times a week and had spent the night in her home the night,before the hearing. The court also found that Rick-man had consistently tested positive for amphetamines since the June 14, 2016, hearing; had admitted having an addiction to Adderall; and had attempted to obtain Adderall by means other than from her medical providers. Finally, the court stated that Rickman’s psychological evaluator said that there were mental-health issues that would prevent, return of K.R. and that Rickman had “borderline functioning,” suffered,, from “major depressive disorder,” and had substance-abuse issues, anxiety, and depression.
An action to terminate reunification services must be based on a finding by clear and convincing evidence that the termination of services is in the child’s best interest and that one or more .of the grounds-listed in the statute exists. Ark. Code Ann. § 9-27-325(c) (Repl. 2015). In this case, the circuit court based its decision on the ground of aggravated circumstances: specifically, that there is little likelihood that services to Rickman will result in successful reunification. In reviewing the circuit court’s evaluation of the evidence, we will not reverse unless the court’s finding of clear and convincing evidence is clearly erroneous.. Chase v. Ark. Dept of Human Servs., 86 Ark. App. 237, 184 S.W.3d 453 (2004). In resolving the clearly erroneous question, we must give due regard to the opportunity of the circuit court to judge the credibility of witnesses, and in matters involving the welfare of young children, we give great weight to the circuit court’s personal I observations. McHenry v. Ark. Dep’t of Human Servs., 2014 Ark. App. 443, at 9, 439 S.W.3d 724, 729.
Rickman’s sole argument on appeal is that there was insufficient evidence to support the court’s finding that there was little likelihood that services to the family would result in successful reunification. She points specifically to DHS’s inability to reconcile the positive drug screens with the constantly changing prescription medications Rickman was taking and argues that DHS’s concern that Rickman was using drugs was pure speculation. Evidence was introduced that drug screens from September 8, 2016; November 5, 2016; November 22, 2016; and February 6, 2017, were positive for amphetamines. Rickman was unavailable for testing on January 24, 2017. A drug screen on January 30, 2017, was positive for ■ “benzo,” and a drug screen from December 16, 2016, less than ■two months before the hearing, was positive for amphetamines, oxycodone, and ox-ymorphone. Rickman claims that DHS was concerned about the positive tests for amphetamines but was unable to explain what constituted an amphetamine or what medications would cause a test to be positive for amphetamines. She presented no evidence, however, to justify t;hese positive drug screens.
With regard to the court’s additional issue of concern, clutter and trash in her home, Rickman argues that DHS did not provide homemaker services to help her. Testimony and photos of Rickman’s home introduced into evidence demonstrated that clutter and filth had been ongoing problems in her home. Demetria Willis, a DHS family service worker assigned to the case, testified that often when she visited, the house was not clean, the porch and the yard were not clean, and there were beer cans, clutter, trash, and clothes everywhere. Ms. Willis admitted that sometimes the house was clean. On cross-examination, Ms. Willis stated Rthat, to her knowledge, DHS had not offered homemaker services to Rickman, but-she testified that those services involve teaching someone how to clean. She testified that it helps fix the problem if the problem is not understanding how to clean but it does not fix the problem of someone’s unwillingness to keep her home clean. Here, Rickman clearly knew how to clean as she demonstrated-with'photos she introduced of her clean home. Further, she reported at her psychological evaluation that she enjoyed “working in the yard and cleaning house.” Finally, the court made numerous findings throughout the case that DHS had made reasonable efforts to provide family services to Rickman and to finalize a permanent plan for K.R. Rickman never challenged those findings. DHS offered services for over three years.. Our review of the evidence does not demonstrate that the court’s finding that the home could be hazardous to a young child and did not provide safe living conditions is clearly erroneous.
Rickman also complains that the court found that instability was demonstrated by her continued relationship with Johnny Underwood but that DHS neither offered services to deal with those concerns nor proved that he was a danger while not living in her home. Rickman admitted that Underwood had physically and emotionally abused her. Underwood testified that, although he no longer lived with Rickman, he and Rickman continued to see each other several times a week and. that he had spent the night before the no-reunification hearing at Rickman’s home. Rickman received numerous services throughout the three-year history of the case, including mental-health evaluations and counseling. The court’s finding of instability regarding this relationship is not clearly erroneous.
17At the outset of its order, the circuit court expressed concern that, despite the case’s three-year history, the court still had not found it possible to return K.R. to her mother. Numerous orders demonstrated that DHS had made reasonable efforts to provide family services during this time. The court found lack of stability demonstrated by the significant ongoing issues with trash and clutter and with Rickman’s relationship with Underwood in spite of his excessive alcohol abuse and her admission that he had physically and emotionally abused her. In addition, the court found that Rickman had consistently tested positive for amphetamines, had admitted having an addiction to Adderall, and had attempted to get Adderall by means other than from her medical providers. Finally, the court recognized Rickman’s psychological evaluator’s opinion regarding her mental-health issues. We hold that the circuit court’s finding of aggravated circumstances in this case is not clearly erroneous.
Affirmed.
Virden and Harrison, JJ., agree..
. The order did not terminate her parental rights but included an Arkansas Rule of Civil Procedure 54(b) certification, noting that a termination hearing had been set and that the grounds for termination would be, in whole or in part, the aggravated-circumstances finding from the "No Reunification Services Order.” The court found that there was "no just reason to delay an immediate appeal ... to ensure the termination of parental rights will not be based on an aggravated-circumstances finding that may be reversed on appeal.” | [
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ESKRIDGE, J.
This was an action for the recovery of money due upon an account brought by Thomas Jacobs [administrator of Keziah Jacobs, deceased] against John Jacobs, before a justice of the peace for the county of Lafayette. There was a verdict and judgment before the justice, in favor of the plaintiff, for $78.00, from which the defendant appealed to the circuit court, which having dismissed the appeal, the cause has been brought by appeal to this court.
Two questions are presented by the record: First, whether the circuit court erred in dismissing the appeal; and second, whether the judgment rendered by that court, upon such dismissal, was correct and suitable. A justice of the peace is required by the statute to keep a docket, and to note in it every step taken in the progress of a cause pending before him, and a transcript from the docket thus kept is made evidence; and it is incompetent for the justice, after he shall have certified a transcript from his docket to the circuit court, to supply any defect that may exist in it, by certificate or otherwise; nor can such defect be supplied by the testimony of persons who were present at the trial- before the justice. The transcript, as certified by the justice, must be taken as true, and no extraneous matter can be received by the court to add to or diminish it
The circuit court decided correctly in refusing to receive both the certificate of the justice and the affidavits of witnesses that an appeal was prayed for on the day of trial. The fact, whether an appeal was taken on the day of trial, was an important one in the progress of the cause, which ought to have been noted by the justice on his docket. The statute provides, that when an appeal is prayed for on the day of trial, it shall not be necessary to give notice to the adverse party; and, on the other hand, when an appeal is not prayed for on that day, a notice of ten days must be given to the opposite party. It not appearing from the transcript of the justice’s docket, as certified to the circuit court, that either an appeal was prayed for on the day of trial, or that ten days, notice, as required, was given, the appeal was very properly dismissed by the circuit court. But, however correct the decision of the circuit court may have been in dismissing the appeal, the judgment of that court upon the dismission was erroneous, and must be reversed by this court The circuit court, instead of dismissing the appeal, and rendering a judgment for costs only, gave a judgment for the money in controversy, as also for costs. This was error, and on this ground the judgment of the Lafayette circuit court must be reversed. Judgment reversed accordingly. | [
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N. MARK KLAPPENBACH, Judge
tin this one-brief appeal, appellant Jimmy Earl Atchley appeals from the Scott County Circuit Court’s order that granted appellee Cassie Ann Atchley’s motion for directed verdict at the hearing on his motion to change custody of their children. We reverse and remand for further proceedings.
Jimmy and Cassie married in 2003, separated in 2011, and divorced in 2013. They had three children of the marriage: GA, EJA, and WA. Cassie was awarded custody, Jimmy was awarded reasonable and flexible visitation, and a “Standard Order of Visitation” was incorporated into the decree. Both parties' were ordered to “maintain the minor children in a healthy and wholesome environment at all times, with no overnight visitors of the opposite sex (to whom a party is not married or related) when the children are present.” Both parties-12were ordered to have appropriate beds for the children when they spent the night.
Three years later, in June'2016, Jimmy filed a petition to change custody. At that time,- the twins GA and EJA were eleven years old, and WA was ten years old. EJA suffered from cerebral palsy, Asperger’s syndrome, lung disease, ADD, and ADHD, and required medications to treat those conditions. Jimmy’s petition alleged that since the divorce decree was entered, material changes in circumstances had occurred and that custody should be changed to him. Specifically, Jimmy alleged that Cassie systematically and continually had the children in an unwholesome environment; that Cassie had not provided appropriate medical care for their special-needs child, EJA; and that Cassie had regularly consumed large amounts of alcohol in the children’s presence. Cassie filed a general denial to Jimmy’s allegations.
The matter was heard in December 2016. Jimmy testified on his own behalf, and he called Cassie and EJA as witnesses. Cassie testified that she had lived with the children in one home until it burned, and then she moved to a rental house for a few months in 2015. She agreed that Preston Bays stayed occasion ally at the house, but she claimed that it was not a romantic relationship, that Bays helped her around the house, and that she knew him prior to his high school graduation when he was a student and she was a substitute teacher. For about a month' at the end of 2015, Cassie had the children move in with Jimmy because her' new house was not ready. During that time, Cassie stayed with a friend, Brian Zimmer, and the children stayed overnight with her at Zimmer’s house on a couple occasions. She said that she would sleep on the couch, and the children would sleep on a bed, the couches, or |sa hide-a-bed.
Cassie had since moved into a rental house that she intended to buy; she had lived there most of 2016. She said that this house had one bathroom and she had “made it into a three bedroom.” She considered the laundry room one of the three bedrooms by putting a full-size bed arid bunk bed in there. She said that GA shared the laundry room with Cassie’s other daughter Kelly when she would visit on alternate weekends. She stated that her boys shared a bedroom, and she had her own bedroom. Cassie testified that a former boyfriend, David Haddocks, had stayed overnight at this house about five times and that one or two of those times the children were present.
Cassie admitted that she does consume alcohol and had been intoxicated in front of the children, but she stated that she had not been intoxicated to the point she could not control herself. She thought that she had been intoxicated in front of the children fewer than ten times since the divorce. She said that her doctor told her to take “a couple of shots” at night for her occasional back pain but that she would do that only after the children were settled down and getting ready for bed.
Cassie said that she filled EJA’s medicines at the local Walgreens but that those records showed that she- had not refilled his clonidine since December 2015. She agreed that EJA drew SSI benefits, that he had lost entitleriient to those benefits right after the divorce in 2013, and that she did not reapply until summer 2016. She explained her delay in reestablishing his SSI by stating that she “was working odd jobs and was doing okay.” Cassie | ¿acknowledged that in, June 2016, GA had fallen on the gravel driveway while she was chasing Cassie’s truck, and her knee injury required a trip to, the hospital and sixteen or seventeen staples. Cassie described her method of discipline, which included verbal reprimand, use of a flyswatter, and use of a ping-pong paddle.
Then-twelve-year-old EJA • testified, stating that his mother had him keep up with all his medications, which included pills- and an inhaler. EJA said that he could not find one of the pills he was supposed to be taking (clonidine), although he and his mother had looked for it. EJA said that -they had attended the chuck-wagon races back in April and that his mother had left all the children in her horse trailer at night. He explained that his mother had beds and a heater in the horse trailer, and she would put a tarp over the top of it. She would leave the children there and tell them to go to sleep. One night, EJA and a man named Tim Boatman had to help his mother get back to the trailer; she had stumbled into a truck as she was walking. ÉJA explained that Boatman workéd at the chuck-wagon races, that. Boatman was staying in a building in one of the barns, that he would “go crazy when he would drink,” that he would cuss at them, and that he would tell them to “get out of his house.”
Jimmy testified .that he has a five-bedroom, three-bath house for his children; it was the same house he had had since the divorce; and he has the same job he had at the time of the divorce. Jimmy stated that he does not have a girlfriend living with him. He said that Cassie asked him to keep the children at the end of one summer because her house needed to be fumigated for bugs. Jimmy wanted custody of his children. ■
RAt the' conclusion of Jimmy’s presentation,' Cassie’s attorney moved for directed verdict on the basis that the evidence was insufficient to- support a prima facie showing of a material change in circumstances that would warrant a-change in custody. The trial court;granted the'motion. The trial court remarked that-the chuck-wagon races were “not the best atmosphere” for the children; that it was a little concerned over how much Gassie thought she was drinking; and that she had by necessity moved a couple of times. The trial court concluded that the changes-were not material and significant enough to show a change of custody to be in the children’s best interest. In the order on appeal, the trial court made the finding that Jimmy failed to present a prima facie case on his motion to change custody and that Gassie was not required to mount a defense against this petition.
The standard of review is well settled. It is the circuit court’s duty, in deciding a motion to dismiss made after the presentation of the plaintiffs case, to determine whether, if the case were a jury trial, there would be sufficient evidence to present to a jury. Wagner v. Wagner, 2011 Ark. App. 475, 2011 WL 2557619; Woodall v. Chuck Dory Auto Sales, Inc., 347 Ark. 260, 61 S.W.3d 835 (2001). The circuit court does not exercise its fact-finding powers, such as judging the witnesses’ credibility, in making this determination. Wagner, supra. On appeal, we view the evidence in the light most favorable to the nonmoving party, giving the proof presented its highest probative value and taking into account all reasonable inferences deducible therefrom. Id.. We affirm if there would be no substantial evidence to support a jury verdict. Id. In other | (¡words, when the evidence is such that fair-minded persons might reach different conclusions, then a jury question is presented, and the directed verdict should be reversed. Id.
Arkansas law is well settled that the primary consideration in child-custody cases is the welfare and best interest of the children; all other considerations are secondary. Harris v. Harris, 2010 Ark. App. 160, at 13, 379 S.W.3d 8, 16. A judicial award of custody will not be modified unless it is shown that there are changed conditions-demonstrating that a modification of the decree will be in the best interest of the child, or when there is a showing of facts affecting the best interest of the child that either were not presented to the circuit court or were not known by the circuit court at the time the original custody order was entered. Stehle v. Zimmerebner, 375 Ark. 446, 291 S.W.3d 573 (2009). Generally, courts impose more stringent standards for modifications in custody than they do for initial determinations of custody. Grisham v. Grisham, 2009 Ark. App. 260, 2009 WL 936952. The reasons for requiring more stringent standards for modifications than for initial custody determinations are to promote stability and continuity in the life 'of the child and to discourage repeated litigation of the same issues. Id. The party seeking modification has the burden of showing a material change in circumstances. Byrd v. Vanderpool, 104 Ark. App. 239, 290 S.W.3d 610 (2009). There is no requirement that the trial court wait until the children are actually harmed before finding that a material change in circumstances warranting a change in custody exists. Sisson v. Sisson, 2012 Ark. App. 385, 421 S.W.3d 312.
Jimmy’s sole point on appeal is that the trial court improperly granted the motion to ^dismiss and failed to require Cassie to mount a defense to the allegations. We agree. We must view the evidence in the light most favorable to the nonmoving" party (here, Jimmy), giving the proof presented its highest probative value and taking into account all reasonable inferences deducible therefrom. Aydani v. Wagner, 2011 Ark. App. 475, 2011 WL 2557619. Viewed from that perspective, Jimmy presented evidence that Cassie had been repeatedly intoxicated in front of her children and had been regularly consuming concerning amounts of alcohol; that their twelve-year-old special-needs child had been put in charge of his own medications and had not had certain medicines filled by his mother for a year; that their special-needs child had had his disability benefits cut off and not reinstated for a significant period of time; that Cassie had taken her children to what even the trial court believed was a less than wholesome environment; that she left her .young children alone to sleep in a tarp-covered horse trailer and had to be assisted by her special-needs son in returning (the reasonable inference being that she was intoxicated); and that Cassie had repeatedly had overnight visitors of the opposite sex in violation of their divorce decree’s explicit order. Moreover, Jimmy provided evidence that he had maintained his, employment and living situation, all while not having overnight visitors of the opposite sex or engaging in otherwise inappropriate behaviors. Instead, Jimmy had exercised his visitation and had willingly taken thé children additional times when Cassie requested.
Given our standard of review, we must agree with Jimmy that the trial court erred in granting the motion to dismiss because it did not view the evidence in the proper light. See Sisson, supra. At that juncture, the trial court was not to weigh the evidence or make credibility determinations; all the evidence was to be viewed most favorably toward Jimmy’s petition. Certain factors, when examined in the aggregate, may support a custody modification even when each factor, if examined in isolation, would not. Boudreau v. Pierce, 2011 Ark. App. 457, 384 S.W.3d 664; Davis v. Sheriff, 2009 Ark. App. 347, 308 S.W.3d 169. Fairminded people could have undoubtedly come to differing conclusions on this evidence. Compare Westin v. Hays, 2017-Ark. App. 128, 513 S.W.3d 900. It was improper to summarily dismiss Jimmy’s petition to change custody where a prima facie case was presented.
Reversed and remanded for further proceedings.-
Virden and Brown, JJ., agree.
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BRANDON J. HARRISON, Judge
|, Kristina Johnston appeals a permanency-planning-hearing order of the Lonoke County Circuit Court based on Ark. R. Civ. P. 54(b) and Ark. Sup. Ct. R. 6-9(a)(1)(B). This case presents a very close decision on the merits, but we are not left with a firm and definite conviction that a mistake was made. We therefore affirm the circuit court.
I. Overview
This case began in February 2016 when Johnston was arrested for fraudulent use of a credit card, and her children D.J., L.J., and B.M, did not have a caregiver. Johnston stipulated that her three children were dependent-neglected in March 2016 “due to her | ^parental unfitness, specifically the mother had inadequate housing.” She was ordered to cooperate with the Arkansas Department of Human Services (DHS), follow the case plan, not use controlled substances, submit to random drug screens, undergo a drug-and-alcohol - assessment and follow its recommendations, successfully complete- a drug-treatment program, and submit to a hair-follicle test. In April 2016, in addition to the previous orders, the circuit court ordered Johnston to complete parenting classes, -individual counseling and family counseling (if recommended by the-children’s therapist), maintain stable housing and employment, submit to a forensic psychological evaluation, attend visitations, and demonstrate improved parenting.
Following a June 2016 review hearing, the court found that Johnston was in' partial compliance but that she had “not proven stability. This must be done.” Following an August' 2016 review, the court wrote:
The mother is in partial compliance. She - has attended counseling weekly, completed her drug and alcohol assessment, psychological evaluation and parenting classes. She needs to follow the recommendations of both the drug and alcohol assessment and the psychological evaluation. A copy of her psychological evaluation shall be provided to her therapist. The mother does not have stable housing or employment at this time. These children need stability.
Notwithstanding the court’s finding above, Johnston was ordered to participate in and complete párenting classes, individual counseling, family counseling (if recommended by the children’s therapist), anger-management classes, random drug screens, remain drug free, complete drug- and-alcohol assessment (and follow any recommendations from it), attend outpatient drug treatment, attend AA/NA two times a week, maintain stable housing and employment, submit to a forensic evaluation, comply with the terms of case plan, | ¡¡cooperate with DHS, maintain contact with DHS, attend visitation, and demonstrate improved parenting.
The circuit court reviewed the case again in November 2016, but it made no specific findings on Johnston’s compliance with the court’s previous order. In the November 2016 order, the court removed anger-management classes, family counseling, outpatient .drug treatment, and AA/NA attendance from its requirements of Johnston.
The court conducted a hearing in March 2017 to determine a permanency plan for the children.
II. March 2017 Penrkmemy-Planning-Hearing Testimony
DHS caseworker Sharese Handie testified during the permanency-planning hearing that she had been assigned the case since September 2016, and that, from that time, Johnston had four different short-term living arrangements. Caseworker Handie said that she had visited the trailer home Johnston obtained in February 2017, approximately a month before the hearing, and that it was appropriate. According to Handie, DHS did not consider Johnston to have stable housing because she had the trailer only for a month. When asked if she knew whether Johnston had income “at this time,” Handie answered, “She doesn’t.” Yet when asked if Johnston “had employment throughout the case,” Handie replied, “She has.”
Handie further testified that Johnston had completed her psychological evaluation in June 2016 and had followed up on the' recommendations. Johnston also finished a drug-and-alcohol assessment and was referred to outpatient drug-and-alcohol treatment, which she completed. Johnston also completed parenting classes. She had been visiting the | ¿children twice a week but had recently missed because of the flu. Johnston had started a new round of coun seling, but Handie didn’t know the reason, When asked to explain why. Johnston had not made substantial measurable progress, she replied, “Because she just got another home, and that’s unstable housing; She still doesn’t have a job.” According to Handie, those were the same issues that started the case.
Handie also testified that Johnston had just texted her that she had gotten married a few days before the permanency-planning hearing. Handie had not had the opportunity to do a background check on the person Johnston had married, and that caused her concern. Handie agreed that Johnston “has diligently worked towards reunifying with the children” but it would take Johnston another “six months to a year” to get stable enough for the children to return to her.
On cross-examination, Handie admitted that she did not know the name of Johnston’s therapist but was aware that the target completion date for the therapy was 17 April 2017. She also admitted several inaccuracies in her court report, including that it was inaccurate because it did not show that Johnston had completed outpatient therapy. Handie maintained that Johnston did not have stable housing because she had just moved in. She conceded that Johnston could complete her counseling and the three additional parenting classes the court ordered within three months.
DHS called Johnston as a witness. Johnston testified that her husband is Chad Buckner and admitted that he is a felon. She said that they had permission from their probation officers to marry and that they chose to get married because they had been best friends for two years. DHS asked Johnston many questions about her housing throughout |Bthe ease. The testimony is not entirely clear but it appears that Johnston was homeless for a while, that she lived in1 Sherwood for four months, that she lived in a place' in Ward that had bed bugs,' and - that she has a trailer home at her current address in Cabot.
Johnston testified that she has babysitting jobs and sold things online stating, “I know that’s not considered a job to the courts, I guess, but I have made plenty of money to support my family. And I have a savings account that I’ve saved up.... I’ve been saving every penny I’ve had while I was homeless.” When asked about her new husband Chad, she said, that he has a felony conviction for theft by receiving in 2014 and spent six months in jail. She also testified that she fraudulently used a credit card and got a $500 fine and a day of community service. There was also some questioning related to a misdemeanor ter-roristic-threatening charge, for which Johnston said she received one year probation and a large fine, which had been paid off and the probation “dismissed.”
DHS then questioned Johnston about her health. She testified that she takes Cymbalta for depression, irritable bowel, and fibromyalgia. She also takes gabapen-tin, oxycodone, and tizanidine for pain and Klonopin for severe anxiety. She said that she does not take the medications when she needs to drive and that she has a husband who can drive.
She testified ■ that she needs $1,440 a month to pay all bills and that she has an additional $1,060 leftover. each month to use for the children. When asked about “being homeless for a lot of the case was not making it appropriately, correct?,” she replied, “No, but I was trying to save enough money to be able to come up here and tell you I have money.” She thought her children could come home “today” even though the children had been out of her care for over twelve months.
IflWhen DHS asked Johnston about “the grandmother” having custody of B.M., she expressed concern that all three of the grandmother’s children had “been in trouble with the law,” that the eldest daughter is a felon, and that B.M. told her during visitation that her “Nana and PaPa cussed in front of her and scream a lot.” She expressed that “I would rather [B.M.] come home to me where she belongs and where she wants” but conceded that if the only choice were between B.M.’s grandmother or a stranger, she would choose the grandmother. As far as L.J., Johnston testified that she preferred a “Christian foster home” if given the choice between her current placement with an aunt and uncle and a stranger and that she wanted L.J. “out of that home.” Related to D.J., she said that he had a “great Christian family” and that she wished there were more openings in that home.
On cross-examination by the attorney ad litem, Johnston stated that she had been charged with obstructing government operations and resisting arrest but that those-charges had been dismissed. She also admitted to a felony theft-of-property conviction from 2014 (before this ease started). She stated that she had switched primary-care providers because the judge wanted her to, that she was also being treated at Arkansas Pain Management, and that her disability application was pending.
On cross-examination by her counsel, Johnston testified about the six-month lease on the home where she currently resided. The lease was entered into evidence. She clarified that she had no pending criminal issues, that she had completed her outpatient treatment, and that she had completed one round of parenting classes and had three classes left on the second round of parenting classes. She testified about what she had learned from the parenting classes and that she had missed only one visit with her children because of a 17bowel obstruction yet had made it to recent visits despite having the flu. She said that the counseling had been beneficial. On further cross- and recross examination it appeared that Johnston had seen many different therapists in the case.
Chad Buckner, Johnston’s husband, testified that before the marriage he lived with his parents. He said that he had never been involved in a DHS case before, had no true findings on the child-maltreatment list, and had visitation with his son from a previous marriage. He testified that he was on probation for four years for theft by receiving but would complete probation in November. He said that Johnston would make $150 to $200 from selling things on Facebook and that she made more than him some days. When asked what would happen if she ran out of things to sell, he said that she had applied for disability and he has a friend who is a manager at Domino’s Pizza. He said that he graduated high school with Johnston, that they had not seen each other for a long time, that they are best friends, and that he proposed about two weeks before they got married. Before that, he had a relationship with Johnston and her children and had provided money to Johnston. He denied illegal drug use except as a teenager and was willing to undergo a drug screen and a hair-follicle test.
Brett Collins testified for DHS. He said that all three children had been placed with him and his wife (Johnston’s sister Lindsey) at the beginning of the case. He said that the children were doing “fairly well” but that there was a lot of resentment and discontent. In his view, D.J. was being deceitful by contacting his mom (Johnston), that things boiled over at a staffing, and he thought it best that D.J. move to a new home, which he did. Things with L.J. had been smoother once she realized that the Collinses were not “the monsters 1 sthat we were made out to be” but that B.M. still has “outbursts.” Collins thought B.M. might do better in a home where she had more one-on-one attention and that she was attached to her grandmother. He said that he and his wife preferred to adopt L.J.
DJ.’s foster parent, Laura Patterson, testified that he had lived in her home since 5 August 2016. She said that D.J. had been doing very well and that he was welcome to stay with her and her husband for as long as needed. According to Patterson, D.J. works, is a straight-A student, and “gets along with everyone.”
Judy Brannen, five-year-old B.M.’s paternal grandmother, testified that she had been visiting B.M. two hours a week every Sunday but wanted more visitation time. She agreed that her son, Jesse, could not be paroled to her house if B.M. were to, stay there, that she could follow court orders, and that she would prefer a neutral third party meet Johnston should visitation be ordered.
D.J. testified that he is seventeen and that he would like to go back to his mother even though he has had a good time with the Pattersons and they have taken good care of him. He said that he is supportive of his mother’s marriage to Chad, that Chad is a “great guy,” that he provides money, and that “not too many men hop into a relationship with three kids.” He testified that he had been waiting over a year to get the “driver’s reimbursement” from DHS and that he didn’t understand “why we can’t go back to our mother.” On cross-examination, he said that family counseling would be beneficial.
The attorney ad litem' testified that she had spoken to L.J., and that L.J. did not want to testify but she wanted the court to know that she wanted to remain in her current placement with her aunt and uncle. A CASA report was also entered into evidence.
| Jennifer McCain, á licensed master social worker at Centers for Youth and Families, testified Johnston was transferred to her as a client from a fellow coworker on leave from a medical issue. She testified that she had been to Johnston’s home and that there was nothing that had caused her concern. In the two sessions she had with Johnston, McCain thought that she had been forthcoming, open, honest, and compliant. She explained that the program was á short-term twelve-week program with a maximum of sixteen weeks, and that April 17 would be Johnston’s twelfth week in the program.
Following the hearing, the circuit court determined that reunification with Johnston was not in the children’s best interest and that continuing DHS custody was necessary for the juveniles’ health and safety. The permanency goal for the oldest child, D.J. (age 17), was “Another Planned Permanent Living Arrangement (APPLA).” For the middle child, L.J. (age 14), the goal was a subsidized permanent guardianship with relatives. For the youngest child, B.M. (age 5), the goal was permanent custody with her grandparents.. The court found that DHS made reasonable .efforts to finalize a permanency plan by providing' foster- care, drug-and-alcohol assessments, individual counseling, inpatient drug treatment, parenting, psychological evaluations, home visits, supervised parent-ehild visits, and hair-follicle tests. Importantly, the court found that Johnston had not made “significant measurable progress.” It ordered DHS to make a referral for family counseling with D.J. and B.M. and relieved the department from providing any further services to Johnston other than counseling.
1 inIII. Arguments on Appeal
Here, Johnston argues that the circuit court clearly erred when it refused to af ford her three additional .months to achieve reunification pursuant to Ark. Code Ann, § 9—7—338(c) (Repl. 2Q15), and found that the respective goal changes for the three children were in their best interest. DHS responds that “Johnston failed, to preserve at trial and abandons on appeal any argument that the circuit court should have found all the elements required to allow the circuit court to continue the-case plan goal of reunification.” It further ar.-. gues that the circuit court did not clearly err in changing-the goals in the case, and the evidence supported the conclusion that it would not be in the juveniles’ best interest to return to Johnston’s custody. The children, through their attorney ad litem,-maintain, that Johnston .failed to prove by a preponderance of the. .evidence that she made significant measurable progress and that the circuit court chose a.permanency plan that -was .most preferred under the juvenile code.
A. Preservation
We begin with DHS’s contention that Johnston’s arguments are not-, preserved for review. The general rule is this: in a civil bench trial, a party may challenge the sufficiency of the evidence for the first time on appeal. Bohannon v. Robinson, 2014 Ark. 458, at 5, 447 S.W.3d 585, 588. In Gyalog v. Arkansas Department of Human Services, we held that a notice of appeal that designated a permanency-planning order was- sufficient to preserve a challenge to the permanency-planning order. 2015 Ark. App. 302, at 8, 461 S.W.3d 734, 739. Gyalog argued that the- court’s decision to change the ease goal from.reunification to termination and adoption was clearly erroneous, and we characterized that argument as a |ttsufficiency challenge to the permanency-planning order. Id. Like Gyalog, Johnston has appealed the court’s permanency-planning decision and is arguing that there was insufficient evidence to meet the statutory requirements to change the case-plan goal. She may therefore make her sufficiency challenges to the permanency-planning decision for the first time on appeal.
B. Merits
Turning to the merits of Johnston’s sufficiency-based arguments, we review findings in dependency-neglect proceedings de novo, but we will not reverse the circuit court’s findings unless they are clearly erroneous.' Lamontagne v. Ark Dep’t of Human Servs., 2010 Ark. 190, 366 S.W.3d 351. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court, based on the entire evidence, is left with a definite and firm conviction that a mistake has been committed. Id. This court defers to the circuit court’s evaluation of the credibility of witnesses. Id.
The statute in place at the time of the permanency-planning hearing provides,
(c) At the permanency planning hearing, based upon the facts of .the case, the circuit court shall enter one (1) of the following permanency goals, listed in order of preference, in accordance with the best interest, health, and safety of the juvenile:
(1) Placing custody of the juvenile with. a fit parent at the permanency planning hearing;
(2) Returning the juvenile to- the guardian or custodian from whom the juvenile was. initially removed at the permanency planning hearing;
(3) Authorizing a plan to place custody of the juvenile with a parent, guardian, or custodian only if the court finds that:
(A)(i) The parent, guardian, or custodian is complying with the-established case plan and orders of the court, mak ing significant measurable progress toward achieving the goals established in the case plan and diligently -working toward reunification or placement in the home of the parent, guardian, or custodian.
Iia(ii) .A parent’s, guardian’s; or custodian’s resumption of contact or overtures toward participating in the case plan or following the orders of the court in the months or-weeks, immediately preceding - the permanency planning hearing are insufficient grounds for -authorizing a plan to return or be placed in the home as the permanency plan.
(iii) The burden is on the parent, guardian, or custodian to demonstrate genuine, sustainable investment in completing the requirements of the case plan and following the orders of the court in order to authorize a plan to return or be placed in, the home as the permanency goal; and
(B)(i) The parent, guardian, or custodian is making significant and measurable progress toward remedying the conditions that:.
(a) Caused the juvenile’s removal and the juvenile’s continued removal from the home; or
(b) Prohibit placement of the juvenile in the home of a parent.
(ii) Placement of the juvenile in the home of the parent, guardian, or custodian shall occur within a time frame consistent with the juvenile’s developmental needs but no later than three (3) months from the date of the permanency planning hearing; -
(4) Authorizing a plan for adoption with the department’s filing a petition for termination of parental rights unless:
(A) The juvenile is being cared for by a relative and the court finds that:
(i) Either:
(a) The relative has made a long-term, commitment to the child and the relative is willing to pursue guardianship or permanent custody; or
. (b) The juvenile is being cared for by his or her minor parent who is in foster care; and
(ii) Termination of parental rights is not in the best interest of the juvenile;
(B) The department has documented in the case plan a compelling reason why filing such a petition is not in- the best interest of the juvenile and the court approves the compelling reason as documented in the case plan; or
(C)(i) ' The department has not provided to the family of the juvenile, consistent with the time period in the case plan, such services as -the department deemed necessary for the safe return of the juvenile to the juvenile’s home if reunification services were required to be made to the family.
(ii) If the department has failed to provide, services as outlined in the case plan, the court shall schedule another permanency planning hearing for no later than six (6) months;
(5) Authorizing a plan to obtain a guardian for the juvenile;
, (6) Authorizing a plan to obtain a permanent custodian, including permanent custody with a fit and willing relative; or
ha(7)(A) Authorizing a plan for another planned permanent living arrangement that includes a permanent planned living arrangement and addresses the .quality of services, including, but not limited to, independent living services and a plan for the supervision and nurturing the juvenile will receive,
(B) Another planned permanent living arrangement shall be selected only if:
(i) The department has documented to the circuit court a compelling reason for determining that it would not be in the best interest of the child to follow one (1) of the permanency plans identified in subdivisions (c)(1)—(6) of this section and this subdivision (c)(7);
(ii) The child is sixteen (16) years of age or older; and
(iii) The court makes a judicial determination explaining why, as of the date of the hearing, another planned permanent living arrangement is the best permanency plan for the juvenile and the court finds compelling reasons why it continues to not be in the best interest of the juvenile to:
(a) Return home;
(b) Be placed for adoption;
(c) Be placed with a legal guardian; or
(d) Be placed with a fit and willing relative.
(d) At the permanency planning hearing on' a juvenile sixteen (16) years of age or older, the court shall ask the juvenile his or her desired permanency outcome, or the attorney ad litem shall enter evidence concerning the child’s wishes.
(e) At every permanency planning hearing the court shall make a finding on whether the department has made reasonable efforts and shall describe the efforts to finalize a permanency plan for the juvenile.
(f) A written order shall be filed by the court or by a party or party’s attorney as designated by the court and distributed to the parties within thirty (SO) days of the date of the hearing or prior to the next hearing, whichever is sooner.
(g) If the court determines that the permanency goal is adoption, the department shall file the petition to terminate parental rights within thirty. (30) days from the date of the permanency planning hearing that establishes adoption as the permanency goal.
Ark. Code Ann. § 9-27-338.
Pursuant to the statute, the preferred goal is for the circuit court to authorize a plan to place the children back with Johnston if she can show that she is complying with the 1 ^established case plan and court orders, making significant measurable progress, and the children can be returned within three months. Ark. Code Ann. § 9-27-338(c)(3)(A)-(B).
Johnston asserts that the circuit court erred in finding that she had failed to make substantial, measurable progress. She further argues that placement pursuant to section 9-27-338(c)(2), which authorizes the circuit court to create a plan to return the juvenile to the parent within three months of the permanency-planning hearing, was in her children’s best interest. In Johnston’s view, the change of the case goal was not in her children’s best interest because' seventeen-year-old D,J. testified that he wanted to be with his mother and the court could have made reunification and APPLA concurrent goals without affecting D.J.’s permanency plans.A similar concurrent plan could be made with L.J. because the subsidized guardianship is lengthy and in the meantime, Johnston could be prepared to have custody of L.J. within three months. As to B.M., she was not even in her grandparents’ custody at the permanency-planning hearing so it was contrary to her best interest to change the goal to permanent custody with the grandparents when Johnston was making meaningful progress and complying with the case plan. The bottom line to Johnston’s argument is this: permanency for the children would not have been affected by giving her three additional months to achieve reunification, that is the preferen tial goal under the statute, and it is in the children’s best interest.
DHS responds that it was reasonable for the court to conclude it was in the juveniles’ best interest for the case goals to change because “Johnston remained unstable and did not sufficiently benefit from the services to allow reunification at the [permanency-planning hearing] or within three months.” D.J. was going to age out of foster care soon. L.J. did 11snot want to return to Johnston, and B.M. has had frequent visits with her grandparents and was bonded to them. The attorney ad litem echoes DHS’s arguments.
There are facts in the record that favor Johnston. She submitted to drug screens and completed outpatient substance-abuse treatment in November 2016. She attended visitation with her children. She finished a set of twelve parenting classes and then completed nine out of twelve of a second round of classes ordered by the court, and the caseworker testified that the remaining three classes would be completed within three months. Johnston completed a psychological evaluation and counseling and followed up on all recommendations, according to the DHS caseworker. Her therapist, Jennifer McCain, testified that Johnston had been compliant and forthcoming with her and had been open and honest about the diagnoses in her psychological evaluation. The caseworker testified that Johnston’s completion of her counseling would occur within three months should the court grant that additional time.
We hold, however, that the circuit court neither clearly erred in changing the goals in this case nor in finding that Johnston failed to make “significant measurable progress.” Johnston had more than one year to achieve stability and was repeatedly homeless for extended periods throughout the case and had bed bugs and other problems with appropriate housing. Her employment consisted of selling things on Facebook. The caseworker testified that the home could not be considered “stable” until Johnston had it for at least six months and that Johnston needed six more months or a year to become stable. She married a felon, Chad Buckner, a few days before the permanency-planning hearing and did not inform DHS of the marriage. The record shows that Johnston had multiple medical issues—| ^depression, anxiety, and pain—that require multiple medications impacting her ability to supervise the children if they were returned to her custody. She had yet to complete all of her counseling and parenting classes that the court had ordered. There was evidence that Johnston was unstable and did not sufficiently benefit from the services DHS provided even after one year of services. A parent’s overtures toward participating in the case plan or following the orders of the court in the months or weeks immediately preceding the permanency-planning hearing are insufficient grounds for authorizing a plan to return or be placed in the home as the permanency plan. Ark. Code Ann. § 9-27-338(A)(ii).
The court also did not err in finding that reunification with Johnston was not in the children’s best interest. Johnston did not maintain safe and appropriate housing throughout the case and was homeless much of the time. Even though she had leased a home a month before the permanency-planning hearing, the court could conclude that she was not likely to maintain that housing given her past behavior and history of moving frequently to housing that was temporary and often unsafe for juveniles. She also had a history of instability with various criminal charges, which was the reason the children were taken into care. The children were doing well in their placements, and the court could find a risk of harm should they be returned to Johnston’s custody based on her past behavior. See Bearden v. Ark. Dep’t of Human Servs., 344 Ark. 317, 42 S.W.3d 397 (2001) (potential-harm inquiry is one of the many factors that a court may consider in a best-interest analysis); see also Dowdy v. Ark. Dep’t of Human Servs., 2009 Ark. App. 180, at 12, 314 S.W.3d 722, 728 (circuit court not required to find that actual harm would result or to affirmatively identify a potential harm).
17IV. Conclusion
After reviewing the entire record, we are not left with a definite and firm conviction that a mistake was committed.
Affirmed.
Glover and Vaught, JJ,, agree.
. The record reflects that there was an open referral and a past protective-services case related to the children, but those are not contested in this appeal. | [
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RHONDA K. WOOD, Associate Justice
hOn February 26, 2016, appellant Reginald Dunahue, who is currently incarcerated at a unit of the Arkansas Department of Correction located in Lee County, filed a pro se petition for writ of habeas corpus in the Lincoln County Circuit Court. Dunahue filed his petition pursuant to Arkansas Code Annotated sections 16-112-101 to -123 (Repl. 2016), alleging that the prosecutor used perjured and implausible testimony and committed misconduct. In addition, Dunahue alleged that the trial court abused its discretion; that he was denied due process; and that his trial counsel, Rule 37 counsel, and appellate counsel were ineffective. The circuit court found Dunahue was no longer within its jurisdiction and that none of Dunahue’s claims were cognizable in a habeas proceeding. Accordingly, the court dismissed his petition. Dunahue lodged an appeal from the dismissal and has now filed a motion seeking to file a nonconforming belated brief on appeal. We need not consider the merits of the motion because it is clear from the record that Dunahue cannot prevail on appeal. We dismiss the appeal and find the motion moot. An appeal from an order that denied a petition for a writ of habeas corpus ■will not be permitted to go forward 1 ¡where it is clear that the appellant could not prevail. Williams v. Kelley, 2017 Ark. 198, 2017 WL 2378187. Any petition for writ of habeas corpus to effect the release of a prisoner is properly addressed to the circuit court in which the prisoner is held in custody, unless the petition is filed pursuant to Act 1780. See Ark. Code Ann. §§ 16-112-201 to -208 (Repl. 2016). Arkansas Cods Annotated section 16-112-105 (Repl. 2016) requires that the writ be directed to the person in whose custody the petitioner is detained. See State Dep’t of Pub. Welfare v. Lipe, 257 Ark. 1015, 1017, 521 S.W.2d 526, 528 (1975) (“[T]he controlling question is the identity of the person in whose custody the prisoner is detained.”). Although a circuit court may have subject-matter jurisdiction to issue the writ, a court does not have personal jurisdiction to issue and make returnable before itself a writ of habeas corpus to release a petitioner held in another county. Williams, 2017 Ark. 198; see Mackey v. Lockhart, 307 Ark. 321, 819 S.W.2d 702 (1991). At the time the petition was dismissed, Dunahue was incarcerated in Lee County. Regardless of where Dunahue was incarcerated at the time the petition was filed, a writ of habeas corpus issued by the Lincoln County Circuit Court could not be returned because that court lacks personal jurisdiction over prison officials located in Lee County.
Appeal dismissed; motion moot. | [
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Ringo, Chief Justice,
delivered the opinion of the Court:
The plaintiffs in error allege that there is error in the judgment, sustaining the plaintiff’s • motion to disregard their pleas and treat them as a nullity, and also in giving judgment for the plaintiff by default after their plea of not guilty had been filed, and they had severally interposed ;a special plea in justification, as well as -in swearing ' the jury to inquire of damages, when they should have been sworn to try the issue. These questions will be considered and disposed of in the order in which they are .above stated. The motion to disregard the plea may have been and probably was based upon the 49th section of the Statute, passed 3d July, 1807, as contained in the Digest of Laws of Arkansas, by Steele and McCampbell, page 331, but if it was, the record fails to show any requisition upon the defendants to produce them, and the court erred in sustaining the motion of the plaintiff to disregard the pleas and give judgment as by default against the defendants; and we are not aware of the existence of any other law justifying such judgment for the non-production ,of books or writings, in the possession .of the defendants, under any circumstances; but inasmuch as these special pleas do not appear in the record before us, we cannot, according to the principle stated in the case of Davis bs. Gibson, decided at the present term, regard them as interposing any defence to the action, because it is impossible for us to know, what the facts so pleaded were, or whether they were so pleaded as to constitute a legal bar to the action; besides the judgment of the Circuit Court is against the parties pleading, and there is nothing in the record which proves that judgment wrong. The special pleas, for aught that appears, may have been inapplicable to the case, or legally insufficient to bar the action, in which event, the judgment should not be set aside for the defendants below, because the record does not'show that their rights have been prejudiced by it, notwithstanding the illegality or insufficiency of the reason assigned by the court for disregarding them.
Such, however, is not the case in regard to the general issue, which, as the record states, was pleaded jointly by the defendants previous to the giving judgment against them, as by default; and although the plea, as it appears on the record before us, purports on its face to be the plea of the defendant Cole only, this can make no difference as to the question now under consideration, for it must be admitted, that the. failure of Severs to plead could not in any manner prejudice the defence made by his co-defendant; and, therefore, if the judgment, as given, is not warranted by the circumstances of the ease, as to both, it cannot, upon legal principles, be supported as to either; and as we have already decided that the defendants do not appear by the record, to have been required in the manner prescribed by the provisions of the statute above cited, to produce the papers mentioned in the special pleas, and that the court was not therefore warranted in giving judgment that the special pleas should be disregarded, upon the ground of the papers therein mentioned not being •produced; it follows of course, if that decision be correct, that the court erred in disregarding the plea of not guilty, and treating it as a nullity, and proceeding to pronounce judgment against both defendants, as by default, which could not have been legally done, even if the defendants had been regularly and legally required to produce the papers or writings mentioned in their special pleas, in the manner prescribed by the statute; because, according to the very language of the statute, judgment by default could only be given as to that part of the defence, “ to which the books or papers of the party are alleged to apply,” and in the present case there is no allegation that the papers or writings in question apply to the defence, upon the general issue, nor is there any pretence, or reason to believe, that they could have been used as testimony for either party. On the trial of this issue, therefore, the court erred in giving judgment for the plaintiff as by default, and treating the pleas of not guilty interposed by the defendant Cole, as a nullity, and for this error, the final judgment of the Circuit Court, as well as the judgment by default, given in this case, are hereby reversed, annulled, and set aside, with costs, and this cause remanded to said Circuit Court for further proceedings therein to be there had, according to law, and not inconsistent with this opinion. | [
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Dickinson, Judge,
delivered the opinion of the court:
That the defendant had a right to appeal and was regularly in the in the Circuit Court is not controverted. The Rev. Ark. Stat., sec. 172,p. 515, declares “that no appeal shall be allowed unless the applicant, or some other person for him, shall make and file with the Justice an affidavit that th.e appeal is not taken for the purpose of delay, but that justice may be done, and section 176 , requires the court to “ hear, try, and determine the same anew, on its merits, without regard to any error, defect, or other imperfection in the proceedings of the Justice.v
All pleas in abatement (unless to the jurisdiction of the court, or where the truth of such plea appears of record) must be sworn to before they can be admitted or received by any cour( in this State. See Rev. Ark. Stat.p. 57, sec. 1. Whether the plea, in this instance, conformed to the statute or not, this court canuot-determine, as it is not' spread out.
We cannot however discover upon what ground the defendant in error could base an argument in support of such a defence as he has put in; for it is evident that the Legislature when they authorized a party to appeal from the decision of a Justice of the Peace, intended merely to give him an opportunity of again bringing before another court and jury the matter id controversy, and to have the same again tried and determined upon its merits, and this is made more manifest from the affidavit required, that “ the appeal is not taken for the purpose of delay, but that justice may be done.” In this instance, he interposes a plea which has no relation to the merits of the cause, but calculated alone to delay its final termination — a plea which g.oes not to the cause of action, but questions the propriety of the suit, or the mode" of bringing it, leaving the merits or rights of action wholly undetermined. Such pleas are considered odious to the law, or at least not favored. It is clear to us that the defendant, by his appeal, has precluded himself from taking advantage of any irregularity in the proceedings before the Justice, and must rely alone upon such defence as he may have to the cause of action upon which the suit is founded. The same principle was established in the case of McKee vs. Murphy, 1 Ark. Rep. p. 55; and Smith vs. Stinnett, ib., 497; and is considered too-well established to require further argument.
The judgment of the Circuit Court in sustaining the plea in abatement must therefore be reversed and set aside with costs, and this casé remanded to the court from whence it came, for further proceedings to be had therein not inconsistent with this opinion. | [
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Ringo, Chief Justice,
delivered the opinion of the Court:
The judgment of the Circuit Couit, pronounced upon the demurrer to the plea, is the only question raised by the assignment of errors, or presented by the record. To support his plea, the appellant relies mainly upon the statute on the subject of assignments; Territorial Dig. 74, which enacts that “ all bonds, bills, and promissory notes, for money or property, shall be assignable, and the assignor may sue for them in the same manner as the original holder thereof could do; and it shall and may be lawful for the person to whom the said bonds, bills, or notes, are assigned, made over, and endorsed, in his own name to commence and prosecute his action at law for the recovery of the money mentioned in such bonds, bills, or notes, or so much thereof as shall appear to be due at the time of such assignment, in the like manner as the person to whom the same was made payable, might or could have done; and it shall not be in the power of the assignor, after assignment made as aforesaid, to release any part of the debt, or sum, really due, by the same bonds, bills, or notes; Provided, that nothing in this section shall be so construed as to change the nature of the defence in law, that any defendant may have against the assignee, or the original assignor.” He also relies upon the adjudication in Kentucky, upon a statute containing provisions in some respects similar to those above quoted; but none of the cases cited in his brief, are analogous to the one now under consideration, being either cases in equity, under the provisions in their statute, which declare “ that the defendant shall be allowed all discounts, under the rules and regulations prescribed by law, he can prove at the trial, either against the plaintiff or the original obligee or payee, before notice of the assignment; And provided always, that nothing in this act contained, shall be so construed as to change the nature of the defence, either at law or equity, that any defendant, or defendants, may have against an assignee or assignees, or the original assignor or assignors,” Ky. Dig. by Morehead and Brown, vol. 1, p. 151, and involving some equitable ground of claim or defence; or cases at law where the defence rested upon some matter indissolubly attached to or springing out of 'the contract sued on, before the obligor or maker had notice of the assignment, which is expressly given, or reserved to the defendant by the provisions above quoted from their statute. But in the case of Triplet vs. Bradley, 6 Monroe, 354, the Court of Appeals, of Kentucky, held that a note of the assignor, assigned to the defendant, and held by him at, and before the transfer of the note sued on, by such assignor to the plaintiff, was well pleaded as a set off against the plaintiff suing thereon as assignee. Chief Justice Bibb, delivering the opinion of the Court, in this case, uses this emphatic language : “ The idea, entertained by the plaintiff’s counsel, that a note assigned to the defendant, upon Dunham, whilst Dunham was the assignee of the note sued on, and before he assigned it to the plaintiff is incorrect; the bare reading of the statute of assignment shows the contrary.” The same point was expressly adjudged by the Supreme Court of the United States, in the case of Stewart vs. Anderson, 6 Cranch, 203, on the statute of Virginia, between which, and the Kentucky statute of assignments, above cited, there is no essential difference. Indeed, the latter appears to have been almost literally transcribed from the former; and if our statute of assignments made the same provisions in favor of the defendant, and directed as they do, the allowance of “ all discounts which he could prove at the trial,” either against the plaintiff or the original obligee, or payee, we might, and probably would be disposed to give to it the construction given to those of Kentucky and Virginia, in the cases above cited, and admit the plea of set off of a demand held by the defendant against the payee or assignor when the assignment was made; for as the demand, so held, is expressly made a legal defence to the action, the party could avail himself of it, by way of setoff, whenever the facts were within the purview and operation of the statutes authorizing the defence in that form. But our statute of assignments is silent on the subject of discounts, providing simply that the nature of the defence in law, that any defendant may have against the assignee, or the original assignor, shall not be changed thereby; and in this respect it differs from the statutes of Kentucky and Virginia, which expressly make every matter of discount against the assignor, as well as the plaintiff, a legal defence to the action: therefore, to understand the effect and operation of the pro viso to our statute, upon the respective rights of the parties, and ascertain what defence may be legally made, in an action at law by the assignee against the obligor or maker, upon a contract assigned under and by virtue of the provisions of the statute, it is proper to consider, first, whether the matter of the plea constitutes in law a valid defence to the action; secondly, whether the plea may be legally interposed to the action; and thirdly, whether it is legally sufficient in point of form; for it must be conceded that a plea, legally defective in either respect, could not be admitted as a defence in law to the action. And here it may be proper to observe that there is, in our opinion, a broad and marked legal distinction between the nature of the defence in law, which a party may have, and the form and manner of legally interposing such defence. But, to make his defence available, the matter thereof must be sufficient, and must be interposed in the legal form. Thus, in some of the forms of action established by the common law, which is adopted by our statute, and made to comprise a part of the system of laws in force here, the defendant commonly pleads the facts or matter of his defence specially, while in others he is at liberty to plead the matter specially, or to plead the general issue, and avail himself of the same matters of defence by adducing the facts thereof as testimony on the trial, as he may elect; but the nature of the defence, or, in other language, the facts constituting a legal defence to the action, are not so much subject to his election or control; as for instance, any intrinsic legal objection to the contract, as that it was obtained by fraud, or duress, or founded on some illegal, insufficient, or vicious consideration, and the like; or to its present existence as an obligation, debt, or duty; as that it has been paid, released, or otherwise legally discharged, and the like, because, such defences, from the moment of their existence, become absolutely and inseparably attached to, and follow the contract, whether it remains in the hands of the obligee or payee, or passes into the hands .of some assignee, under the provisions of the statute; and the proviso under consideration, was, as we apprehend, designed to preserve to to the defendant, as the obligor, or maker, of the contract, the full benefit of the latter, but not to dispense with any law regulating and prescribing the time, manner, or form, of availing himself oí it, and, therefore, the defence must be made, or pleaded, in due time, and in proper order, in some form legally admissible, in the particular form of action to which it is opposed. It will be remarked, also, that the proviso under consideration does not create any new plea, or define what shall constitute, for the defendant, a defence at law, but simply preserves to him such defence at law as he may have against the original asssignor, or the assignee, and leaves him to make out his defence in such manner, or by such pleadings, as, according to common law and statutes in force at the time, may be interposed as a legal defence to the action, in the form in which it is prosecuted; while, on the other hand, the statute professes to secure to the assignee a legal right to recover whatever may appear to be due on the contract when the assignment is made, and thereby prohibits the assignor from releasing any part of the debt or sum really due on the obligation or note after the assignment is made. It will also be recollected that this statute of assignments was passed by the legislative authority of the Territory of Louisiana, where the civil law existed and furnished the rule of decision, as well in regard to the right, as the remedy, and it must therefore be understood as referring to that code, in all its provisions according to the principles of which, whenever there exists between private persons a mutual indebtedness, on account of money due, the law so operates upon the debts as to make them destroy or extinguish each other from the period of their mutual or reciprocal existence, which happens by the simple operation of law, and without any other acts of the parties. 1 Pothier on Obligations, Evans' Ed., 366, 374. This statute, therefore, appears to us to have been designed to define, limit, and protect, the rights of the assignee acquired by virtue of the assignment, and the proviso thereto to have been inserted as declaratory of a right, then subsisting in the defendant; which it was not the intention of the law to impair, or in any manner subvert. The rights of the assignee as derived through the assignment, by virtue of the statute, are first, the right to prosecute an action at law in his own name, for the recovery of the money, mentioned in the contract, assigned in like manner as the payee thereof might or could have done if no assignment had been made; and, secondly, to recover the sum really due on the contract at the time of the assignment; and to secure to him the latter, the assignor, after assignment made, is expressly prohibited by law from releasing any part of the debt, or sum, really due by the contract; but if the assignor was indebted to the defendant prior to and at the time when he assigned the debt of the defendant, the law extinguished so much of the debt of the latter as his debt against the assignor amounted to, and the residue only constituted the debt or sum really subsisting, which the assignor could transfer, and which the assignor was authorized by the statute to sue for and recover in his own name, and the assignor could not, after the assignment, release; therefore, the existence of such debt, in favor of the defendant against the assignor, as it destroyed and extinguished so much of his debt, or legal liability, to the assignor, and reduced the extent of his legal liability on the contract to the residue unextinguished and really subsisting when the assignment was made, constituted in favor of the defendant a legal defence as to so much of the debt as had been thus compensated and extinguished, in the hands of the assignee, as well as the assignor; and he could avail himself of it in the action br-pught upon the contract by the assignee; and such defence was under the civil law indispensable to prevent a positive injustice to the defendant, as he had no means of obtaining any satisfaction of his already extinguished debt against the assignor, except by opposing it as a compensation against so much of the assigned debt, as was in like, manner extinguished by it; and it was defences of this, and the like kind, which it was the design of the proviso to preserve, by requiring the statute to be so construed, that the defendant should not be prejudiced by the assignment, but should have the same benefit of them as a defence at law against the assignee, as he was by law previously entitled to against the original assignor, or in other words, the legal rights of the defendant, in regard to the contract assigned, should not be impaired in consequence of the assignment. But instead of preserving the civil law, as it existed in Louisiana when this statute was passed, the legislative authority have thought proper to retain the statute without any qualification of its provisions, while they have dis carded the civil law as a system of jurisprudence, and introduced in its stead, the common law of England, which is of a general nature, and all statutes of the British Parliament, in aid of, or to supply the defects, of the common law, made prior to the fourth year of James the first, and of a general nature, and not local to that kingdom, and declared that the same, when not contrary to the constitution and laws of the United States, or of this State, K shall be the rule of decision” in the State. The common law and statutes so introduced, do not recognize the principles of compensation, and extinguishment of debts, by the mere operation of law, as established and maintained by the civil law; but decide that it is no defence to an action at law, that the plaintiff is indebted to the defendant in as much, or more, than the defendant is indebted to him; and leave the defendant to his remedy, by another action at law to recover his debt against the plaintiff, unless the nature of the employment, transactions, or dealings, necessarily constitute an account consisting of receipts and payments, debts and credits, and then the balance only is considered the debt, and nothing more can be recovered. These principles are well established, and clearly defined, by the common law, and no statute of the British parliament, effecting any change in them, has been in force here. The law of set off is no part of the common law, and its origin in England can be traced no farther back than 4 Anne and 5 George II, which provided for a set off of mutual demands in the case of bankrupts only; but this right has been greatly extended by the statutes of the 2 and 8 George II, and now forms an important part of the jurisprudence of that country. These statutes, however, were never in force in this State, and the right of set off, as a legal defence to an action at law, as it exists in our jurisprudence, derives its being from the statute approved December 23, 1818, section 107, Arkansas Digest, by Steele and McCampbell, 352 and 353, which provides that “if two or more persons be mutually indebted to each other, by judgments, bills, bonds, bargains, promises, accounts, or the like, and one of them commence an action, in any court, one debt may be set off against the other, notwithstanding such debts may be deemed, in law, of a different nature, and such matter may be given in evidence upon the general issue, or pleaded in bar, as the nature of the case may require, so as at the time of pleading the general issue, when any such debt is intended to be insisted on in evidence, notice shall be given of the particular sum or debt so intended to be insisted on, and upon what account it became due or otherwise, such matter shall not be given in evidence on such general issue, and if it shall appear by an adjustment of said mutual demands, that the plaintiff has been overpaid, the jury shall find the amount thereof in their verdict, and judgment shall be entered up by the court for the defendant against the plaintiff for the amount by said verdict found due to the defendant, with costs.”
It is clear, from the phraseology of this statute, that the Legislature only intended to admit this defence when the demand sued for, and that to be set off, are debts mutually subsisting between the plaintiff and defendant, and if there could otherwise be any doubt upon this subject, it must, we think, be "entirely removed by the latter provision, which expressly requires the court to enter up judgment for the defendant against the plaintiff, where it appears upon an adjustment of said mutual demands that the plaintiff has been overpaid, for such debt or sum so found due to the defendant, which could only be done where the demand sued for, and that set off against it,“ mutually subsist between the plaintiff and defendant, and it would be contrary to law, as well as to reason and justice, to decide upon the rights of persons who are not parties to the proceeding, more especially such rights as are, in no respect, necessarily connected with the subject matter of the action, and to which the plaintiff is a stranger. The plea does not, therefore, in our opinion, present such facts as constitute a valid defence in law to the action, because the demand described in the plea, could not, under our laws, so operate as to extinguish so much of the debt of Small to Knight and Bell, notwithstanding the mutuality of their indebtedness at one period of time, nor could it have operated as a compensation under the civil law, because the mutuality of the indebtedness was destroyed by the assignment of Small’s debt to Strong by Knight and Bell, before either debt became due, and it cannot be placed as a set off to the action of Strong, because there is no mutual indebtedness subsisting between him and Small, shown by the plea; wherefore, it is the opinion of this Court, that the plea of the defendant below does not show a defence in law to the action, and is no legal bar to any part thereof, and that the demurrer of the plaintiff thereto was rightly sustained, and, therefore, there is no error in the proceedings and judgment of the Circuit Court of Phillips county, given in this case, and the same ought to be, and it is hereby, in all things affirmed with costs. | [
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Dickinson, Judge,
delivered the opinion of the court:
Not deeming it necessary to discuss the principles upon which pleas are stricken out by the court, we will consider the proceeding in the same light as if the pleadings had come up on demurrer.
The defendant in error contends that in debt upon bond, it is ,no plea that the plaintiffs accepted a new bond in satisfaction of the old one, for that is no satisfaction, either actual or present; and refers to various authorities in support of his position. If he has reference only to cases where there is a simple exchange of bonds, or obligations, his argument cannot, in truth, be controverted, for the satisfaction must, in legal contemplation, be advantageous to the party agreeing to accept, for it would be inoperative if it could not possibly afford him some equivalent or consideration. Bacon Ab. accord, A.; Com. Dig. accord B. 1. There must be some change, or rather difference, between the former and the latter contract to show that the parties intended to alter it by substituting something more advantageous to the creditor than he before possessed, as by shortening the time, giving other security, or the like. Hobart, 68. And it is a rule that to a bond, accord and satisfaction can be pleaded by deed only, for an obligation under seal cannot be discharged but by an instrument of at high a nature as the obligation itself. 2 Wils. 86. In the case of Lynn, and another, vs. Bruce, 2 H. Black, 317, where the plaintiff, at defendant’s request, had consented and agreed to accept and receive from the defendant a composition of fourteen shillings in the pound and so in proportion for a lesser sum than a pound, upon a debt due from the defendant to the plaintiff on a bond for two hundred pounds in full satisfaction and discharge of the sum and all money due thereon, and the defendant promised to pay the compensation. A part thereof only was paid, and an action brought for the residue.
The consideration of the promise was on an agreement to accept a composition, and judgment was signed for the balance. Lord Chief Justice Eyre, in delivering the opinion of the court said, “ that it was settled in the case of Allen vs. Harris, 1 L. Raym. 122, upon consideration of all the cases that upon an accord no remedy lies,” and that it was said that the books are so numerous that an accord ought to be executed, that it was impossible to overturn an the authority — the expression is u overthrow all the books.” This doctrine is well settled, and upon sound principles. Accord executed is satisfaction. Accord executory is only substituting one cause of action in the room of another, which might go to any extent. The cases in which the question has been raised whether an accord executory could be enforced, and in which it has been so often determined that it could not, have been cases in which it has been pleaded in bar of the original action; but the reason given in three of the cases Rol. Al. title, Accord, pi. 11, 12, 13, is because the plaintiff hath not any remedy for the whole; or, where part has been performed for that which is not performed, which goes directly to the gist of the action.
An accord must be completely executed in all its parts before it can produce legal obligation or legal effect. In Peyton's case, 5 Co. 79, referred, to by the defendants in error, it was held that where part of the accord had been executed, fender of the residue would not be sufficient to make it a bar to the action; but that there must be an acceptance in satisfaction. See also the two cases in Cro. Eliz. 304, 305, to the same effect.
A plea simply alleging acceptance of a smaller sum of money in satisfaction of a larger sum has been repeatedly decided to be bad. 5 Coke, R. 117, Pinnel's case; 9 Coke, 89; 5 John. R. 386, Watkinson vs. Inglesby; 5 T. R. 513, Kearslake vs. Morgan; 2 T. R. 28, Heathcock vs. Crookshanks; 1 Str. 425, Cumber vs. Ware; 17 John. 169, Seymour vs Minike; and numerous other authorities hold to the same principle. But it has always been held that a plea alleging the payment of a less sum before' the day of payment stipulated in the contract or at a different place; or the delivery of a specific article in satisfaction, and an acceptance in satisfaction by the plaintiff, was a good plea. 5 Co. 117. So a plea, alleging the payment of a less sum by a third person, and the acceptance of it by the plaintiff in satisfaction is a good bar, 11 East, 305, Steinman vs. Magnus; 1 New-Hamp. R. 279, Coburn vs Gould; 2 D. and E. 763, Cockshot vs. Bennett. The reason why the payment of a less sum by the debtor, in satisfaction of a larger sum, cannot be adjudged a satisfaction is, according to Lord Coke, because “ it appears to the Judges that by no possibility can a lesser sum be a satisfaction to the plaintiff for a greater sum.” But the gift of a chattel is good, because it may be intended to be more beneficial to the plaintiff, although of less value than money. 5 N. H. R. 136, Clarke vs. Dinsmore.
It is laid down as a general principle that accord without satisfaction is no bar to an action of debt; that is, that accord being a promise to confer satisfaction must be fully and actually executed and accepted in order to confer satisfaction, and operate as a defence to such action. As for instance, if an agreement is made to do a thing in satisfaction at a future day, and it is done and accepted at that time, it is a legal satisfaction. The party cannot sue while it is only executory, but here is an accord with satisfaction, and the previous claim is extinguished. In support of these positions see Bacon’s Ab. Accord A., Com. Dig. Accord B. 4; Allen vs. Harris, 1 L. Ray. 122; Watkinson vs. Inglesby, 5 J. R. 386. In the case of Blenn vs. Chester, 5 Day, 359, it was said that if the agreement that satisfaction should be rendered by the defendant, or a third person, at a future day, be not founded on a new consideration, and afford a fresh right of action, it would be no bar to an action on the original demand before the time prescribed for rendering satisfaction. Many of the authorities referred to by the defendants were expressly decided upon the ground of accord without satisfaction.
In the case of Cose vs. Barber, T. Raymond 450, one ground of decision there was, that the satisfaction was to be rendered in part by a third person who was party to the accord, but the plea did not show that the promise was in writing. In Com. Dig. Accord B. 4, it is expressly laid down that “ an accord with mutual promises to perform is good, though the thing be not performed at the time of action, for the party has a remedy at law to compel the performance, and this doctrine is sustained in the case of Gordon vs. Cheeseman, 1 B. & A. 325 and 702; also, in the observations of Grose in James vs. David, 5 T. R. 143.
In the case of Boyd, and others, vs. Hitchcock, 20 J. R. 76, it was declared that if a debtor give his note, endorsed by a third person, as further security for a part of the debt, which is accepted by the creditor in full satisfaction, it is a valid discharge of the whole of the original debt, and it may be pleaded in bar as an accord and satisfaction. The additional security required by the creditor for a part of the debt is a good consideration for the relinquishment of the residue. Le Page vs. McCrea, 1 Wend. 172; Kearslake vs. Morgan, 5 T. R. 513. This doctrine is confirmed in vs. Wheeler, 8 Cowen, 79, and the distinction is there taken between the note of a third person, and that of the debtor himself for the original debt. So the acceptance in full satisfaction by a creditor of the note of a third person, endorsed by his debtor, for the whole amount of a previous note given by the debtor, may be pleaded as an accord and satisfaction to an action on the previous note.
In Booth vs. Smith, 3 Wend. 68, it is said to go upon the principle that although the defendant still remains liable, the character of the responsibility is changed, and he cannot be charged on the original consideration.
An express agreement by a creditor to take a bill or note for the full amount of his debt as an absolute payment or extinguishment thereof destroys the right of action for such debt, and leaves the creditor without remedy except upon the instrument. Brown vs. Kewley, 2 B. & P. 518; 10 Vesey, 201; Camidge vs. Allenby, 6 B. C. 381; Sheehy vs. Mandeville 6 Cranch, 253; Burdock vs. Green, 15 J. R. 247; Hughes vs. Wheeler, 8 Con. 77.
In the case of Wilkinson vs. Inglesby and Stokes, 5 J. R. 385, where A. pleaded that he, together with B., being indebted to C., and several others, agreed to assign all the stock in trade and outstanding debts to C. and the other creditors, who agreed to accept the same in full satisfaction of their respective debts, and averred that he and B. did deliver all their stock in trade, and assign all the debts due to them, for the use and benefit of C. and the other creditors, which delivery, and assignment of debts, was received in full satisfaction by C. and the other creditors, &c. There was a demurrer to the plea that it was agreed to assign without averring that the plaintiff was a creditor, or that they assigned, and that it was not set forth to whom the assignment was made. Van Ness, J., in delivering the opinion, said “ that it was a plea of accord and satisfaction, and he thought it was a good plea,” &c.; that there was more nicety than good sense in some of the cases on this subject; that accords are favored in law, and therefore ought not to be too rigorously expounded. The court decided that the agreement was sufficient, and overruled the case of Preston vs. Christmas, 2 Wils. 86, where an assignment of an equity of redemption was declared not to be pleadable as ac cord and satisfaction ; and said that the plaintiff in the case before them agreed to receive such assignment, and that the accord was executed. It avers delivery and assignment, and that the assignment and delivery were received by the plaintiff in satisfaction of the debt. In the case of Cumber vs. Ware, 1 Sir. 426, Chief Justice Pratt said, “that it must appear to be a reasonable satisfaction; at least, the contrary must not appear as it did in that case.”
The current of decisions is, and we believe correctly, that although accord executory is no bar, yet an accord executed is good: and all the authorities agree in this. Rol. Al. title, Accord, pl. 14; 2 Lord Raym. 122; 2 H. Bla. 317.
The acceptance in satisfaction is the essence and gist of the plea, and Lord Coke, in Peyton’s case, 9 Coke, 86, recommends as the best way of pleading an accord to plead it by way of satisfaction only.
In the case of Booth vs. Smith, 3 Wend. 66, it was decided that acceptance in full satisfaction by one creditor of the note of a third person for the whole amount, of a previous note given by his debt- or, is an extinguishment of the original consideration, and such acceptance may be pleaded in bar to a recovery on an original note. The obligation upon which this suit is brought is dated the 19th May, 1838, payable to Tunstall and Waring sixty days after date for 1,109 85, oyer of which was ordered and granted. The defendant below then sets out in his plea that after the execution of the said writing, to wit: on the 25th January, 1839, the plaintiff below took into partnership Robert S. Carter, as well in the matter of the note sued on, as in trade and merchandize, and that before the institution of the suit, he executed the subsequent writing obligatory, with A. V. Brookie and N. Peay, to said Tunstall, Waring, «fe Co., under the name of Tunstall, Waring, & Co., for ‡1,186 86, and avers that the same was accepted and received by the said Tunstall, Waring, and Carter, in full satisfaction and discharge of the said debt, founded upon the writing obligatory in the declaration mentioned, and of all damages and interest due, and owing, and accrued.
The rule by which partners become liable under the contract of partnership has given rise to a general rule in the course of legal proceedings by which the act or admission of one partner, as likewise notice to one partner is held to be binding upon the others, and in all contracts by parol or otherwise, they only who were partners at the lime can join, and therefore a person who enters the partnership after the completion of the contract cannot be made a plaintiff, unless the debtor shall admit him as creditor, and it be agreed between the partners that the contract with the old firm be extinguished, and a contract with the new firm established, Wilford vs. Wood, 1 Esp. 182* Under the latter such partners may sue. Was there such new contract made? It is not only averred that the individuals comprising the new firm were joint owners of the writing sued on, but that all of the partners accepted and received the last writing obligatory in full satisfaction and payment of the first. And can it be denied that they had the power to do so.
That the right to change the partnership, so far as related to themselves, extinguished the, old debt by making a new contract in the name of the new firm cannot be controverted. If then this position be conceded as correct, and we believe it to be so, an assignment from the old to the new firm, to enable them to form a second contract upon the basis of the former one, would, so far as their interests were involved, have been a nugatory or, at least, a hopeless act.
Shortening the time of payment alone is not the only case as contended by the defendant in error in which a plea of this kind would be good. Any change or alteration which renders the creditor’s situation more advantageous, or the debt more secure will suffice. Here the parties not only have the same security as regards Pope, but the additional security of Brookie and Peay, upon as high an obligation as they possessed before. The plea avers that the parties did accept, and is so pleaded, as we conceive with sufficient certainty, and shows the satisfaction to be reasonable; at any rate, nothing to the contrary appears upon the face of the pleadings.
Wherefore, we are of opinion that there was error in the proceedings of the court below in striking out the second plea. The judgment of the Circuit Court must therefore be reversed with costs, and this cause be remanded to the court from whence it came tor further proceed, ings to be had therein according to law, and not inconsistent with this opinion. | [
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Ringo, Chief Justice,
delivered the opinion of the Court:
Several errors have been assigned, which are considered by the Court as unimportant, and not necessary to be noLiced, as the case must be decided upon the assignment which questions the correctness of the judgment, on the ground that it appears by the record, that Latham was not served with process to appear, and never did enter his appearance to the action.
That the summons was not served on Latham, is manifest from the return of the Constable thereon endorsed, consequently he was under no legal obligation to appear; and, according to the principle stated and acted upon by this Court, in the case of Smith vs. Stinnett, which is believed to be right in itself, and fully sustained by the authorities there cited, the entries, as made of record in this case, must be regarded as only applying to, and embracing such of the parties, as by the service of process on them were legally bound to appear, but cannot be considered as constituting or establishing an appearance on the part of those not served with process to appear, and who were under no legal obligation to enter their appearance to the action. Therefore, if this principle and rule of construction be correct, Latham does not appear by the record to have been a party to the case legally before the Court, and against whom a valid judgment could have been given. Notwithstanding which, judgment was given against him and Woolford jointly, which is, in the opinion of this court, wholly unauthorized by law, and therefore ought to be, and is hereby, reversed, with costs, and the cause remanded to the Circuit Court of Pulaski county, from whence it came, for further proceedings to be there had according to law, and not inconsistent with this opinion. But, inasmuch as Latham has, according to the rule uniformly acted upon by this Court, made himself a party defendant to the action, by joining in the writ of error in this case, sued out and prosecuted in this Court, the case, upon its return to the Circuit Court, must be regarded and proceeded in, as though he had been duly and legally served with the original summons issued against him by the Justice of the Peace. | [
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Held in this case that a party might appeal to the Supreme Court from the decision of the Circuit Court, upon filing the necessary affidavit, and without entering into recognizance — and that the recognisance was necessary only to enable the appeal to operate as a supercedeas. | [
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KENNETH S. HIXSON, Judge
[ ]This is a workers’ compensation case. The appellants are Wall Farms,. LLC (Wall Farms), and its current insurance carrier, Riverport Insurance Company (Riverport Insurance). The appellees are Jeff Hulsey and Wall Farms’ former insurance carrier, Liberty Mutual Insurance Company (Liberty Mutual). Mr. Hulsey was an eight-year employee of Wall Farms. Mr. Hulsey was involved in a job-related accident on April 23, 2014, and another job-related accident four months later on August 14, 2014. Mr. Hulsey brought a workers’ compensation claim alleging that he sustained compensable lower back injuries on April 23, 2014 (when Liberty Mutual was providing coverage), and on August 14, 2014 (when Riverport Insurance was providing coverage). Both insurance carriers controverted the claim.
After a hearing, the Workers’ Compensation Commission found that Mr. Hulsey failed to prove that he sustained a compen-sable injury on April 23, 2014, while Liberty 12Mutual was providing coverage. However, the Commission did find that he proved a compensable injury on August 14, 2014, while Riverport Insurance was providing coverage. The Commission awarded Mr. Hulsey reasonable medical treatment, as well as temporary total disability benefits from October 6, 2014, through November 6, 2014. The Commission found that because Riverport Insurance was Wall Farms’ insurance carrier at the time of the August 14, 2014 compensable injury, Riv-erport was responsible for providing all of the workers’ compensation benefits.
Wall Farms and Riverport Insurance now appeal, arguing that the Commission’s findings were not supported by substantial evidence, the Commission misapplied the law to the facts of the case, and the Commission’s findings did not support the award. Mr. Hulsey has cross-appealed, arguing that the Commission’s denial of temporary total disability benefits beyond November 6, 2014, was not supported by substantial evidence. We affirm on direct appeal and we affirm on cross-appeal.
When reviewing a decision of the Workers’ Compensation ■ Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission, Evans v. Bemis Co., Inc., 2010 Ark. App. 65, 374 S.W.3d 51. This court must affirm the decision of the Commission if it is supported by substantial evidence. Id. Substantial evidence is that evidence which a reasonable mind might accept as adequate to support a conclusion of the Commission. Id. We reverse the Commission’s decision only if we are convinced that fair-minded persons could not have reached the same conclusion with the same facts before them. Id. Questions regarding the credibility of [¡¡witnesses and the weight to be given to their testimony are within the exclusive province of the Commission. Id.
Mr, Hulsey testified that he helped maintain ■ a cattle operation for Wall Farms. He stated that his job was physically demanding and that, prior to April 23, 2014, he had no physical limitations and no lower back problems.
Mr. Hulsey testified that, while working on April 23, 2014, he fell about four feet to the ground off a spray rig and twisted when he landed. Mr. Hulsey worked about another hour and: then called his boss, Adam Wall, and reported that he had hurt his back. Mr. Hulsey stated that, after that day, he attempted to .return to. regular duty but missed ten days of work, although they were not consecutive. Mr. Hulsey did not seek medical treatment until May 19, 2014, when he visited a chiropractor, Dr. Chris Curtis. During that visit, Mr, Hulsey wrote on a registration- and-history form that the . reason for his visit was back pain and that his symptoms appeared “a while ago.” In answering whether his condition was due to an accident, Mr. Hulsey checked both the “yes” and the “no” boxes and wrote “unsure.” Mr.- Hulsey also wrote on the form, “fell at work two weeks ago.” In his report, Dr. Curtis noted “low back pain past 2 weeks with no cause. Pt states has had back problems in the past.” Dr. Curtis’s radiology report indicated that there was “hypo” lordosis in the alignment of Mr. Hulsey’s spine, with no further comment.
Mr. Hulsey testified that he was able to function but remained sore until his next injury on August 14, 2014. Mr. Hulsey stated that, on August 14, 2014, he was bush hogging and ran into á hole, which “whipped [him] to the left and jerked [him] around.” Mr. Hulsey stated that, after this injury, the pain was much worse, radiating further up his I ¿back, down into his hip, with excruciating pain in his right leg. Mr. Hulsey stated that he dealt with the pain after his first injury, but after the second injury he had to do something. Mr. Hulsey went to the doctor on the day of the August 14, 2014 accident. He was off work for several days, after the accident, and then returned to work for only a couple days per week before - discontinuing his work altogether on October 6, 2014.
The August 14,2014 medical report.indicated that Mr. Hulsey reported that he had been suffering from back, pain for months. The report further stated that the symptoms began when Mr. Hulsey fell off a wagon and had progressed with him experiencing numbness in his left leg and arm. Cecil Massey,' an advanced practice registered nurse, examined Mr. Hulsey’s back and- reported paralumbar muscular spasms.
An MRI of Mr. Hulsey’s lumbar, spine was performed on August 18, 2014. The MRI report noted that Mr, Hulsey had slipped and fallen two months ago. The MRI detected disc bulges at L3-L4 and L4 - L5, as well as a disc bulge and herniation at L5 - SI.
After the MRI, Cecil Massey, APRN, referred Mr. Hulsey to St. Bernard’s Neurosurgery Clinic, and Mr. Hulsey was seen by Dr. John Campbell on October 6, 2014. Mr. Hulsey then reported that he was injured on the job “late spring went to poc 8-14-14.” In Dr. Campbell’s report, he stated that Mr. Hulsey was hurt on-the job earlier that year when he fell off a piece of equipment, and had injured himself again a few weeks ago when he was bush hogging, apparently hit a rut or hole, and was jerked severely. Dr. Campbell reviewed the MRI, set up physical therapy for Mr. Hulsey, and stated that Mr. Hulsey could also consider surgical intervention. Dr. Campbell later signed a slip stating, “No work for one month, 10-6-2014 thru 11-6-2014.”
U)r. Jared Seale, with Arkansas Specialty Orthopaedics in Little Rock, evaluated Mr. Hulsey on June 15, 2015. Dr. Seale reported that Mr. Hulsey originally hurt his back in April 2014 when he .fell off a spray rig, and then reinjured it in August 2014 when he was bush hogging and hit a hole and was jerked sideways. Dr. Seale stated that Mr. Hulsey’s symptoms began after the work injury, and further reported: ;
[I]t is with a certain degree of medical certainty that at least 51% of the patient’s current symptoms are directly related 'to his work injury. Thus I do believe'his treatment, should be supported by Workers’ Compensation and not his private insurance.
Adam Wall, the owner of Wall Farms, testified that he recalled Mr. Hulsey reporting a lower back injury on April 23, 2014.* Mr. Wall stated that he encouraged Mr. Hulsey to seek medical care at that time, but that Mr. Hulsey said he did not need to'go to a doctor and did-not have insurance. According to Mr. Wall, Mr. Hul-sey also stated that he did not seek medical treatment because he could not pass a drug test. Mr. Wall testified that Mr. Hul-sey was a very good worker, but that he never returned to his full duties after the initial April 23, 2014 injury.
In the Commission’s opinion, it found that Mr. Hulsey failed to prove by a preponderance of the evidence that he sustained a compensable injury on April 23, 2014. The Commission found, inter alia, that Mr. Hulsey did not establish-an injury on that date by medical evidence supported by objective findings. The Commission specifically stated that it did not find . Dr. Curtis’s description of “hypo” lordosis in the alignment of Mr. Hulsey’s ba.ck to be objective medical evidence establishing a compensable injury on April 23, 2014.
I «The Commission did, however, find that Mr. Hulsey proved a compensable injury sustained on August 14, 2014. In finding compensability, the Commission explained:
The claimant testified that, while operating a “bush hog” implement, he fell into a hole, was “whipped to the left,” and “jerked.” The claimant testified that he felt instant acute pain in his back as a result of the August 14, -2014 incident; The claimant sought medical treatment the same day and was assessed with “Lumbar radiculopathy.” An APRN examined the claimant and reported “para-lumbar muscle spasms.” Muscle spasms constitute objective medical findings. See Continental Express, Inc. v. Freeman, 339 Ark. 142, 4 S.W.3d 124 (1999). Dr. Campbell treated the claimant on October 6, 2014 and corroborated the claimant’s testimony that the claimant had been “jerked very severely” as a result of the August 14, 2014 specific incident. Like the APRN, Dr. Campbell assessed lumbar radiculopathy and arranged conservative treatment.
We find that'the claimant proved he sustained a compensable injury on August 14, 2014. The claimant proved that he sustained an accidental -injury causing physical harm to the body. The injury arose out; of and in the course of employment, required, medical- services, and resulted in disability. The injury was, caused by a specific incident and was identifiable by time and place ,of occurrence on August 14, 2014. The claimant established a compensable injury by medical evidence supported by objective findings, namely, the medical provider’s report of spasm on. August 14, 2014. We find that the report of muscle spasm was causally related to the injury occurring August 14,2014.
The Commission found that Mr. Hulsey was.ientitled to workers’ .compensation benefits, to be covered by Riverport Insurance, which was providing insurance coverage on August 14, 2014, when the compen-sable -injury occurred,. The Commission awarded medical benefits as well as temporary total, disability benefits from October 6, 2014, through November 6, 2014, which correlated with the off-work slip signed by Dr. Campbell.
In this appeal, Wall Farms and its current insurance carrier, Riverport Insur- anee, argue that the Commission’s findings regarding the compensability of Mr. Hul-sey’s injury are not supported by substantial evidence, that the Commission misapplied the law to the facts, and that the Commission made insufficient findings to support its awards. The |7appellants contend that the Commission disregarded evidence and erroneously concluded that Mr. Hulsey did not sustain a compensable injury when he fell off the sprayer on April 23, 2014. The appellants assert that the evidence showed that Mr. Hulsey sustained a compensable injury on April 23, 2014, when Wall Farms was covered by Liberty Mutual, and that he did not sustain a compensable injury on August 14, 2014, when Wall Farms was covered by River-port Insurance.
In Arkansas workers’ compensation law, a compensable injury includes accidental injuries that cause physical harm requiring medical services or resulting in disability when they occur in the course of employment. Ark. Code Ann. § 11-9-102(4)(A)(i) (Repl. 2012). Compensable injuries must be established by medical evidence supported by objective findings, Ark. Code Ann. § 11-9-102(4)(D), and objective findings are those that cannot come under the voluntary control of the patient. Ark. Code Ann. § 11-9-102(16)(A)(i).
The appellants argue that there was nothing to support the Commission’s finding that Mr. Hulsey failed to prove that a compensable accidental injury occurred on April 23, 2014, given that Mr. Hulsey testified to such an event, the medical records documented the accident, and Wall Farms’ owner did not dispute that it happened. Appellants further assert that, after the April 23, 2014 accident occurred, Mr. Hul-sey immediately experienced back pain that never went away. Although Mr. Hul-sey sought medical treatment on August 14, 2014, which- was the day of the alleged second injury, appellants note that' the medical documentation from that day, as well as four days later when the MRI was pei-formed, documented only a fall from a water wagon two months prior - with no indication of a recent - accident. As such, appellants argue that the Commission not only erred in finding the April |s23, 2014 injury to be noncompensable, but further erred in finding that Mr. Hulsey proved a compensable injury occurring on August 14, 2014.
Appellants also challenge the Commission’s finding that Mr. Hulsey failed - to establish a compensable injury on April 23, 2014, by medical evidence supported by objective findings. Appellants posit that thé “hypo” lordosis diagnosed by chiropractor Dr. Curtis on May 19, 2014, was an objective finding supporting this first injury.
We hold that the Commission’s findings as to the date of compensability were supported by substantial evidence and that the Commission made sufficient findings to support the award. Contrary to the appellants’ argument, we conclude that the Commission did not err in finding that Mr. Hulsey failed to prove a compensable injury on April 23, 2014, because of a lack of objective medical findings to support it. Although Dr. Curtis detected “hypo” lor-dosis in an examination almost a month after that accident, Dr. Curtis gave no indication that this condition was causally related to the accident, or even caused by a traumatic event.
In support of its claim that “hypo” lordo-sis was an objective finding supporting compensability, appellants rely on Estridge v. Waste Management, 343 Ark. 276, 33 S.W.3d 167 (2000), and Fred’s Inc. v. Jefferson, 361 Ark. 258, 206 S.W.3d 238 (2005). In Estridge, the supreme court held that straightening of the curve in the spine was an objective finding supporting a back injury in that case because this finding is normally associated with muscle spasm, and the doctor there prescribed medication “as needed for muscle spasm.” In Fred’s Inc., the supreme court held that there were objective findings to support a back injury where the claimant complained of muscle spasms in her back, the medical documentation ^indicated a problem with the paraspinous muscle, and Flexeril was prescribed to treat the condition. In the case at bar, appellants contend that, as in Fred’s Inc., the claimant was prescribed Flexeril, which appellants claim was indicative of objective findings.
We conclude that the cases cited by the appellants are distinguishable from this case. In both Estridge and Fred’s Inc., there was evidence that medication had been prescribed to treat muscle spasms, and muscle spasms are objective findings. See Cont’l Express, Inc. v. Freeman, 339 Ark. 142, 4 S.W.3d 124 (1999). In the present case, there was no indication that Mr. Hulsey complained of back spasms to Dr. Curtis or that Dr. Curtis detected back spasms or prescribed treatment for them. Although appellants assert that Dr. Curtis prescribed Flexeril, our examination of the record indicates only that Mr. Hulsey reported to Dr. Curtis that he was already taking Flexeril on the chiropractic registration-and-history form. This is consistent with Mr. Hulsey’s testimony, which was that he took Flexeril to rest but that it had not been prescribed to him. On this record, reasonable minds could conclude that the “hypo” lordosis detected by Dr. Curtis was not an objective finding causally 'related to the April 23, 2014 accident, and therefore the Commission did not err in finding that no compensable injury occurred on that date.
Further, we conclude that substantial evidence does support the Commission’s finding that Mr. Hulsey proved that he sustained a compensable injury on August 14, 2014. Mr. Hulsey testified that on that date he was jerked around while bush hogging, which resulted* in back, hip, and leg pain that was much worse than before. Unlike after the April 23, 2014 incident, Mr. Hulsey immediately sought medical treatment on August. 14, .2014, when he was diagnosed with paralumbar muscle spasms, which are objective medical | mfindings. Four days later, an MRI detected two bulging discs and one herniated disc. Mr. Hulsey was off work for several days after the August 14, 2014 accident, worked only a couple days per week after that, and quit working on October 6, 2014, as a result of the injury. We hold that there was substantial evidence that Mr. Hulsey proved a compensable injury on August 14, 2014, which arose out of the employment, caused physical harm requiring medical services and resulting in disability, and was supported by objective medical findings. For these reasons, we affirm on direct appeal the Commission’s finding that Riverport Insurance is responsible for Mr. Hulsey’s workers’ compensation benefits arising from the August 14, 2014 injury.
We now turn to Mr. Hulsey’s cross-appeal. In his cross-appeal, Mr. Hulsey argues that the trial court erred in limiting his temporary total disability benefits to the one-month period from October 6, 2014, through November 6, 2014. Mr. Hul-sey contends that he should be entitled to temporary total disability benefits through a date yet to be determined.
Temporary total disability is appropriate during the healing period in which an employee suffers a total incapacity to earn wages. Crawford v. Superior Indus., 2009 Ark. App. 738, 361 S.W.3d 290. The healing period is that period for healing of an accidental injury and will continue until the employee is as far re stored as the permanent character of his injury will permit, and ends when the underlying' condition causing the disability has become stable and no treatment will improve that condition. Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982). The claimant has the burden to show that hé remains in the healing period by a preponderance of the evidence. Hickman v. Kellogg, Brown & Root, 372 Ark. 501, 277 S.W.3d 591 (2008).
1»When a claim for benefits is denied by the Commission, the substantial-evidence standard of review requires that we affirm if the Commission's opinion contains a substantial basis for the denial of relief. Powers v. City of Fayetteville, 97 Ark. App. 251, 248 S.W.3d 516 (2007). We hold that the Commission’s opinion displays a substantial basis for limiting Mr. Hulsey’s temporary total disability benefits to the period from October 6, 2014, through November 6, 2014.
The. thrust of Mr. Hulsey’s argument is that he is entitled to continuing temporary total disability because • he • remains in his healing period. However, this argument is unconvincing because the Commission made no finding as to whether Mr. Hulsey remained in his healing period or needed further treatment. Instead, the Commission found that-there was no medical evidence that Mr. Hulsey was incapacitated from earning wages ■■ after November 6, 2014, based on the only medical document addressing the issue, which-was an off-.work slip from Dr. Campbell taking Mr. Hulsey off work from October 6, 2014, through November 6, 2014.- Being that there was no medical opinion expressing that Mr; Hulsey was incapacitated from work at any time after November 6, 2014, and no doctor took-him off work beyond that date, we affirm the one month of temporary total disability awarded by the Commission.
Affirmed on direct appeal; affirmed on cross-appeal.
Gladwin and Glover, JJ:, agree. | [
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BRANDON J. HARRISON, Judge
|, Christopher Cummings was convicted of multiple felonies and now appeals, arguing that the circuit court erred in (1) denying his motion to suppress his statement to police, and (2) denying his request to reduce his $1 million bond. We affirm.
In a felony information filed 5 May 2015, Cummings was charged with two counts of attempted capital murder; simultaneous possession of drugs and a firearm; possession of a firearm by certain persons; possession of a controlled substance Schedule 3711, methamphetamine or cocaine; possession of drug paraphernalia; fleeing; resists ing arrest; and littering. The information was later amended to include a firearm enhancement on the attempted capital-murder charges. A jury found Cummings guilty on all charges, and he |2was sentenced to an aggregate term of 160 years’ imprisonment. Specific facts pertinent to the points on appeal will be discussed below.
I. Motion to Suppress
On 3 May 2015, Cummings was the passenger in a Ford Mustang that .was involved in a high-speed chase with police. During the chase, Cummings fired a gun toward the police cars in pursuit and struck two of the police cars. When the Mustang was finally stopped, Cummings fled on foot but “fell on his face” while running and was thereafter apprehended by police. Cummings resisted arrest but was eventually handcuffed and taken into custody. He was examined at the hospital, cleared of injuries, and taken to the police station, where, after having waived his Miranda rights, he gave a statement to police. In that statement, Cummings admitted shooting at the police officers and also told officers where to find a bag of narcotics that he had thrown from the car during the pursuit.
On 1 December 2015, Cummings filed a motion to suppress the statement he gave to police, asserting that he
gave an incustodial statement at the police station, after having been examined for a head injury suffered while taken into custody and while not fully aware of circumstances of the interrogation, including signing forms or consents; any statement made by Defendant while in custody was not willful and in violation of Miranda.
The circuit court held a motion hearing on 4 January 2016. Officer Billy Kenny testified that he was present when Cummings was placed under arrest and during his later interrogation. Kenny said that he reviewed the Miranda-rights form with Cummings and that he appeared to understand -his rights and was answering questions appropriately. Kenny denied threatening or coercing Cummings and stated that Cummings signed the Miranda [ ¡¡form voluntarily. Kenny explained that he had read Cummings his rights on camera but that a portion of the thirty-minute interview video, approximately the first sixteen minutes, was lost. On cross-examination, Kenny denied any knowledge of Cummings being struck in the head at the time of his arrest. On redirect, Kenny confirmed that Cummings had been treated at the hospital and released with no injuries for interview purposes.
Officer Joe Flack testified that he participated in Cummings’s interview and that Cummings was not threatened or coerced into giving a statement. Flack said that Cummings understood the questions asked of him and responded appropriately “for the most part” but that “[h]e seemed to get -a little confused a few times, kind of mumble a few things.” Flack explained that Cummings talked about firing a gun to “get law enforcement off him” and told police about-throwing drugs, which were in a computer case, out of the vehicle.. Flack said that he later located the computer case and found three, grams of a crystalline substance (later identified as methamphetamine) inside it.
Cummings testified that when he was arrested, he was “stomped on a pretty little bit,” meaning that there were two officers sitting on his back, one officer standing on his arm, and three officers kicking him in the face,' “bouncing [his] head back and forth.” The last thing he remembered was an officer in a tactical vest kicking him in the face, then he woke up in the hospital. He claimed that the officers “scuffled [him] up a bit more” in the hospital. He said that he was later at the police station, which he “vaguely” remembered. Cummings first testified that he signed whatever they put in front of him without reading it; he later said that he did not “really” remember, signing the Miranda form, although he admitted that it was his “scribble” on the signature line.
|4On cross-examination, Cummings confirmed that he had been arrested nineteen times and that he had Miranda rights read to him “a lot of times.” He denied, however, ever signing a Miranda-rights form before because he had never been arrested for a “serious charge.” Cummings also denied remembering much . of the high-speed chase because he had “been up for a couple of days” and “was on a lot of drugs,” specifically methamphetamine. He said that he did not remember -telling the police about shooting the gun or where he threw the drugs. He claimed that he “was trying to say what they wanted to hear to get them to leave [him] alone.”
After the testimony had concluded, the court announced it would review the interview video before making a ruling. The court later issued a letter opinion and found the following;
The officers testified that Mr. Cummings was coherent at the time of the interview. It is true that he was taken to Conway Regional Hospital after his arrest due to the physical altercation that followed that arrest. However, he was treated and released. The video does show some signs of redness on his head particularly on the right side but his responses to the questions and his demeanor do not indicate that he was impaired as a result of his injuries.
Therefore, it is the Court's conclusion ... that the defendant’s motion to suppress should be denied.
Cummings renewed his motion to suppress when his statement was introduced at trial, and the motion was again denied.
A statement made while in custody is presumptively involuntary, and the burden is on the State to prove by a preponderance of the evidence that a custodial statement was given voluntarily. Bell v. State, 371 Ark. 375, 266 S.W.3d 696 (2007). In Grillot v. State, 353 Ark. 294, 107 S.W.3d 136 (2003), our supreme court clarified the appropriate standard hof review for cases involving a circuit court’s ruling on the voluntariness, of a confession—we make an independent determination based on the .totality of the circumstances. We review the circuit court’s findings of fact for clear error, and the ultimate question of whether the confession was voluntary is subject .to an independent, or de novo, determination by. the appellate court. Clark v. State, 374 Ark. 292, 287 S.W.3d 567 (2008).
To determine whether a waiver of Miranda rights is voluntary, knowing, and intelligent, we look to see if the statement was the product of free and deliberate choice rather than intimidation, coercion, or deception. Flanagan v. State, 368 Ark. 143, 243 S.W.3d 866 (2006). To make this determination, we review the totality of the circumstances surrounding the waiver including the age, education, and intelligence of the accused; the lack of advice as to his constitutional rights; the length of the detention;. the repeated and prolonged nature of the questioning; the use of mental or physical punishment; and statements made by the interrogating officers and the vulnerability of the defendant. Id. We will reverse a circuit court’s ruling on this issue only if it is clearly against the preponderance of the evidence. Id. Evaluating the credibility of witnesses who testify at a suppression hearing about the circumstances surrounding an appellant’s custodial confession is for the circuit court to determine, and this court defers to the circuit court in matters, of credibility. Shields v. State, 357 Ark. 283, 166 S.W.3d 28 (2004).
On appeal, Cummings argues that (1) his statement- was coerced because he was beaten by police officers at the time of his arrest and beaten again at .the hospital before he was taken to the police station for his interrogation, and (2) he''lacked capacity to waive his Miranda rights due to the combined effects of sleep deprivation, intoxication, and head injuries. In response, the State first asserts that Cummings failed to preserve his coercion .argument because he did not rais.e it below and did pot get a ruling on such an- argument from the circuit court. Alternatively, the State argues that his coercion argument has no merit because it turns solefy on the credibility of the witnesses; . Cummings bases his argument on his own testimony, but that testimony was refuted by the officers’. testimony, and it is within the circuit court’s province to resolve conflicting testimony. See Shields, supra.
Second, the State contends that Cummings failed to argue below that his statement was involuntary due to sleep deprivation or intoxication. And as to -his argument that his head injuries rendered him incapable of waiving his Miranda rights, the State asserts that this argument is again based solely on Cummings’s own testimony, which was refuted by the officers’ testimony. The circuit court weighed the evidence presented at the suppression hearing and determined that Cummings was not impaired as a result of any alleged injuries, and this, court should affirm the circuit court’s conclusion.
We agree that Cummings did not articulate a coercion argument below, nor did he obtain a ruling regarding coercion. As to capacity to consent, the circuit court evaluated the credibility of the witnesses who testified at the suppression hearing and found that Cummings was not impaired, and this court defers to the circuit court in matters of credibility. See Shields, supra. We also note that Cummings provided no medical evidence of a head injury to support his claim of incapacitation. We therefore affirm the denial of the motion to suppress.
|7II. Request to Reduce Bond
At Cummings’s arraignment on 5 May 2015, the State requested a $1 million bond. The State argued that Cummings had committed multiple felonies, was currently on parole, and had a lengthy criminal history, including arrests, and convictions for failure to appear. It also asserted that Cummings was an “extreme flight risk” and had “endangered himself and others” by shooting at the police during a high-speed chase. Defense counsel, who had just been appointed, responded that a $500,000 bond would be sufficient. After questioning Cummings about his lack of employment, the circuit court accepted the State’s recommendation and set the bond at $1. million but also stated its willingness to address the bond amount again if the defendant wished to request a hearing.
Several days later; Cummings moved for a hearing on his bond, asserting that $1 million was excessive and unconstitutional. At a motion hearing on 4 January 2016, defense counsel called no witnesses but argued that the bond was unreasonably high. After again questioning Cummings about his lack of employment and reviewing Cummings’S criminal history of nineteen prior arrests, the court found that the case was set for trial on January 21 and that the bond would not be changed. After additional pretrial hearings and two continuances at Cummings’s request, the case proceeded to trial on 16 August 2016.
On appeal, Cummings, asserts that he was denied reasonable bond. The setting of the bond amount rests in the reasonable discretion of the circuit court. Mun. Ct. of Huntsville v. Casoli, 294 Ark. 37, 740 S.W.2d 614 (1987). Our supreme court has held that once an appellant has been found guilty and is incarcerated, the issue of pretrial bond is moot, Bower v. State, 2010 Ark. 456, 2010 WL 4680196. In addition, the proper means to challenge a bond decision is by a |swrit of certiorari, and a party who'does not seek a timely writ of certiorari from a bond decision abandons the issue. Id.; Irvin v. State, 345 Ark. 541, 49 S.W.3d 635 (2001).
Cummings argues that 'this issue falls within either the “capable of repetition yet evading review” exception or the ^substantial public interest” exception to the mootness doctrine. He also contends that the circuit court failed to consider the factors listed in Ark. R. Crim. P. 8.5 (pretrial release inquiry) and Ark. R. Crim. P. 9.2 (release on money bail). Finally, Cummings asserts that the bond amount, was unconstitutionally . excessive considering his indigent status.
In response, the State denies that any exception to the mootness doctrine applies. Alternatively, the State argues that the circuit court was not required to make written findings of fact and that the circuit court did not abuse its discretion in setting the bail amount considering Cummings’s extensive criminal history and his flight risk.
We hold that Cummings has abandoned this issue by waiting until after he had been convicted to appeal it. Our sm preme court has made clear that a writ of certiorari is the appropriate remedy to review bail-bond proceedings, and a party who does not seek a timely writ of certio-rari from a bond decision abandons the issue. Bower, supra; see also Trujillo v. State, 2016 Ark. 49, 483 S.W.3d 801.
Affirmed.
Glover and Vaught, JJ., agree.
. The possession-of-a-firearm-by-certain-per- - sons, fleeing, resisting-arrest, and littering charges were later nolle pressed. | [
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ROBERT J. GLADWIN, Judge
h The Pulaski County Circuit Court granted summary judgment to appellee Director of the Arkansas Department of Human Services (ADHS) in appellant Deanna-Baker’s suit for declaratory and in-junctive relief, filed after, she had been fired from, her job with ADHS. Baker addresses ADHS’s .points raised in its cross-motion for summary judgment and argues on appeal, that. (1) she did not fail to exhaust her administrative remedies; (2) her claim is.not barred by sovereign immunity; (3) she stated a cause of action upon which relief can be granted; (4). if the trial court’s order is not deemed a denial of her motion for summary judgment, this court should adjudicate that motion-rather than remand the case; and (5) she is entitled to summary judgment. We affirm, because Baker failed to exhaust her administrative remedies; accordingly, we do not address her other arguments on appeal.
| pi. Facts and Procedural History
Baker filed a complaint in,circuit court on September 4, 2015, claiming that ADHS relied on inapplicable law when it terminated her employment as a family services worker (FSW) based on her -fifteen-year-old misdemeanor conviction for domestic battery, which had been discovered by ADHS during a criminal-background check. Alternatively, Baker claimed that the law on which ADHS relied had been amended to include only those convictions “during the five-year period preceding the background check request.” Baker sought certain declarations under the law and in-junctive relief in the form of reinstatement to her job as a FSW.
On October 12, 2015, ADHS filed a motion to dismiss arguing that Baker’s complaint was barred by sovereign immunity, and Baker responded. The trial court denied ADHS’s motion by order filed Janu ary 29, 2016, finding that Baker had stated sufficient facts alleging an ultra vires act to proceed with her cause of action against ADHS.
Baker filed a motion for summary judgment on July 25, 2016, along with a brief and supporting attachments. In her motion, Baker listed ' certain- undisputed facts: (1) she was convicted of domestic battery on September 17, 1998; (2) she was hired by ADHS in September 2012; (3) she had her misdemeanor conviction expunged on May 9, 2013; (4)'in July 2013, ADHS conducted a criminal-background check, which revealed the 1998 |smisdemeanor conviction; (5) ADHS terminated Baker’s employment in August 2013; (6) ADHS cited the 1998 conviction as the reason for Baker’s termination; and (7) ADHC cited that the termination was pursuant to ADHS policy 1080.
Baker argued in the motion’s accompanying brief that ADHS relied on the wrong statute when it terminated her employment. She alleged that ADHS committed an ultra vires act by terminating her employment in violation of the applicable statute. She argued that the unlawful termination caused her to lose her health-insurance benefits and. approximately $75,000 in wages. Baker sought reinstatement to her position with all the attendant seniority and benefits as if she had not been fired.
ADHS filed a cross-motion for summary judgment alleging that (1) Baker had failed to exhaust her administrative remedies; (2) sovereign immunity barred Baker’s claims because the State’s financial liability would be increased if the benefits were reinstated; (3) Baker could not demonstrate irreparable harm and thus could not prevail on her injunctive-and declaratory-relief claims; and (4) Baker was an at-will employee whose employment ADHS was entitled to terminate at any time.
Baker responded to ADHS’s motion, particularly to its arguments of failure to exhaust administrative remedies and failure to demonstrate irreparable harm. Baker filed a supplemental affidavit stating that she had relied on information provided by ADHS at her termination. The affidavit states,' “I otherwise knew about the grievance process and would have filed a grievance about my discharge if I had thought I could have had the merits of |4my discharge addressed.” In its reply brief, ADHS claimed that its policy provides an express process by which Baker may challenge the decision as to whether her termination was grievable.
The trial court granted ADHS’s cross-motion for summary judgment by order filed November 4, 2016, without specifying which of ADHS’s arguments had prevailed. On November 23, 2016, Baker filed a motion to modify the trial court’s order because it did not include the trial court’s ruling, if any, on her motion'for summary judgment, and Baker asked the trial court to specifically deny her motion for summary judgment. ADHS responded on December 12, 2016, arguing that Baker had failed to demonstrate that the order con- tamed an error or mistake, citing Arkansas Rule of Civil Procedure 60(a) (2016). The trial court did not rule on Baker’s motion, and Baker filed a timely notice of appeal.
II. Standard of Review
We recently set forth our standard of review, in a similar summary-judgment action that contained cross-motions for summary judgment:
Moving to our standard of review, “summary judgment may be granted only when there are no genuine issues of material fact to be litigated, and the moving party is entitled to judgment as a matter of law.” Cannady v. St. Vincent Infirmary Med. Ctr., 2012 Ark. 369, 423 S.W.3d 648. “Ordinarily, upon reviewing a circuit court’s decision on a summary-judgment motion, we would examine the record to determine if genuine issues of material fact exist.” May v. Akers-Lang, 2012 Ark. 7, 386 S.W.3d 378. However, in a case where the parties agree on the facts, we simply determine whether the appellee was entitled to judgment as a matter of law. Hobbs v. Jones, 2012 Ark. 293, 412 S.W.3d 844. “When parties file cross-motions for summary judgment, as was done in this ease, they essentially agree that there are no material facts remaining, and summary judgment is an appropriate means of resolving the case. As to issues of law presented, our review is de novo.” State v. Cassell, 2013 Ark. 221, at 4-5, 427 S.W.3d 663, 666 (citations omitted). “De novo review means that the entire case is open for review.” Certain Underwriters at Lloyd’s, London v. Bass, 2015 Ark. 178, at 9, 461 S.W.3d 317, 323 (citations omitted).
Washington Cty. v. Bd. of Trs. of the Univ. of Ark., 2016 Ark. 34, at 3, 480 S.W.3d 173, 175.
III. Exhaustion of Administrative ■ Remedies
The doctrine of exhaustion of administrative remedies provides that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted. Hotels.com, L.P. v. Pine Bluff Adver. & Promotion Comm’n, 2013 Ark. 392, 430 S.W.3d 56. The doctrine is, however, subject to numerous exceptions. Id. For example, exhaustion is not required when no genuine opportunity for adequate relief exists or when irreparable injury will result if the complaining party is compelled to pursue administrative remedies. Id. Exhaustion is also not required if an administrative appeal would be futile. Id.
Baker argues that her statutorily based firing is not a grievable matter, and she asserts that ADHS is estopped from making the argument. First, Baker argues that ADHS terminated her employment and informed her that her discharge was nongrievable. Second, Baker contends that ADHS policy provides that termination based on a positive criminal-background check is nongrievable, see ADHS Policy 1080.7.0, and that nongrievable matters include matters governed by law, see ADHS Policy 1086 (II)(h)(3). Therefore, Baker claims that if the administrative process could have been available to her, this statement and policy should equitably estop ADHS from now claiming that she had a duty to grieve her discharge, because she would have relied on that affirmative misrepresentation to her detriment. See generally Foote’s Dixie Dandy, Inc. v. McHenry, 270 Ark. 816, 607 S.W.2d 323 (1980) (holding that the State was es-topped from collecting ah additional assessment in unemployment-insurance contributions by corporation’s reliance on statements of field auditor of Employment Security Division); Ark. Dep’t of Hu man Servs. v. Estate of Lewis, 325 Ark. 20, 922 S.W.2d 712 (1996) (providing that the elements of estoppel are that the party to be estopped must know the facts; the party to be estopped must intend that the conduct be acted on or must act so that the party asserting estoppel had the .right to believe it was so intended; the party asserting estoppel .must. be .ignorant of the facts; and the party asserting estoppel must rely on the other’s conduct and be injured by that reliance).
Baker argues that regardless of any es-toppel, a grievance would and should have been disallowed because the underlying matter is governed by a state statute. She ■contends that she could not have gained any remedy through such a procedure; a denial of her claim in such a procedure would not have, been directly appealable to any court; and thus, resorting to the administrative remedies would have been futile and was not required. She cites Cummings v. Big Mac Mobile Homes, Inc., 335 Ark. 216, 980 S.W.2d 550 (1998), wherein the Arkansas Supreme Court held that, the buyers of a mobile home did not have to exhaust administrative remedies before bringing suit, because applicable statutes did not provide for an administrative remedy for the relief sought, and asking for such a remedy before the Manufactured Home Commission would have been manifestly futile. Baker also relies on one of ADHS’s exhibits to its cross-motion for summary judgment—an appeal of a non-grievance determination wherein the panel held that due to the statutory nature of the definition of, a “safety sensitive” position, the issue was excluded from the purview of the grievance-appeal panel because matters governed by law are not eligible for grievance under Policy 1086.11.h.3.
17Baker contends that she knows of no authority for the proposition that the exhaustion of an administrative remedy can be required to deny a court action when the same administrative authority, directly by policy and regulation, precludes that matter from administrative review. She argues that her only claim is a statutory claim outside the agency’s jurisdiction and that it is, not .coupled with any regular claim that would otherwise be presented to the agency. She cites Abraham v. Beck, 2015 Ark. 80, 456 S.W.3d 744, in which our supreme court held that when the plaintiff has no pending claims before an agency and raises a facial challenge to a. statute, an exhaustion of administrative remedies is not necessary to bring an action under the Declaratory Judgment Act. She also relies on McGhee v. Arkansas State Board of Collection Agencies, 368 Ark. 60, 243 S.W.3d 278 (2006), which held that taxpayers were not required to exhaust their administrative remedies before bringing a declaratory-judgment claim alleging that the Check-Casher’s Act violated the state constitutional usury limit. Baker argues that a board’s decision on her claim would not be judicially reviewable because a negative decision would have been appealable to the state grievance-review panel.
Baker argues, that she did not file and then withdraw a grievance over her discharge, as alleged by ADHS. She claims that she filed a grievance about being placed-, on ■ desk duty while her criminal-background check was being done, the filing and withdrawal of which, she claims, occurred before her termination, She maintains that she would have filed a grievance over her discharge had she not been told (correctly, she contends) that it was non grievable. Baker also notes that the'nonbinding mediation procedure that ADHS claims she Rshould have exhausted was not adopted until June 23, 2014. See Ark. Code Ann. § 21-1-701 (Repl. 2016).
ADHS contends that the trial court’s grant of summary judgment should be affirmed, and that this court should hold that Baker’s suit; was properly dismissed for her failure to challenge her termination through ADHS’s grievance procedures. We agree with ADHS’s contention. It is well established that a litigant must exhaust her administrative remedies before instituting litigation to challenge the action of the administrative agency. Abraham, supra. When relief is available from an administrative agency, the plaintiff is required to pursue that avenue of redress before proceeding to the courts. Hotels.com, supra.
Baker seeks a declaratory judgment; therefore, exhaustion is required, Rehab Hosp. Servs. Corp. v. Deltar-Hills Health Sys. Agency, Inc., 285 Ark. 397, 687 S.W.2d 840 (1985), and the exceptions to the exhaustion doctrine do not apply. There is a genuine opportunity for adequate relief for any employee of ADHS to challenge an adverse action through its grievance-appeal process. See Hotels.com, supra,. ADHS presented unrefuted evidence that the administrative remedies available to its employees are not futile because the administrative tribunals overseeing its employment appeals can, and do, overturn ADHS decisions,
Baker initiated the grievance process when she was placed on desk duty, but she withdrew her grievance. Instead of following it through, she claims that ADHS is estopped from requiring exhaustion; alternatively, she claims that even if ADHS is not estopped, the process would have been futile. However, the unrefuted evidence was that even the issue of grievability is a matter that may be challenged by an ADHS employee. See ADHS | flMediation/Grievance Policy 1086. Additionally, ADHS presented to the trial court unrefuted facts of other instances in which employees have appealed the very nongr rievability determinations of adverse actions; implicit in these appeals, ADHS contends, were, that ADHS had communicated to the employee that the matters were not grievable. Baker does not provide authority for her suggestion that solely challenging a statute'in an effort for reinstatement exempts her from the exhaustion doctrine. Abraham, supra, only lends support to the exhaustion requirement, as it held that the physician and patient were not required to exhaust; administrative remedies because they had no claims before-the agency. Here, Baker’s claim was for reinstatement. Baker was also required to raise any constitutional or statutory violations at the administrative level. McGhee, 368 Ark. at 67, 243 S.W.3d at 284.
Even if the administrative review ultimately determined that the appeal- process did not encompass the review'of a statutory issue, Arkansas law is clear that Baker was required to carry out the process to the absolute end or present facts to demonstrate that it is certain the relief sought would be denied on appeal. In Old Republic Surety Co. v. McGhee, 360 Ark. 562, 203 S.W.3d 94 (2005), the Arkansas Supreme Court held that one must present facts demonstrating certainty that the relief sought will be denied on appeal for the futility exception to apply. Baker failed to present any facts on this issue. Based on our de novo review, we affirm.
Affirmed.
Abramson and Whiteaker, JJ., agree.
. We note that the .attachments to Baker’s motion are not in strict compliance with Arkansas Rule of Civil Procedure 56 (2016), because not all the attachments are verified. See Am. Gamebird Research Educ. & Dev. Found., Inc. v. Burton, 2017 Ark. App. 297, 521 S.W.3d 176 (holding that all evidence submitted in summary-judgment proceedings must be under oath). However, no objection was raised below. Failure to raise the challenge below is fatal to the appellate court’s consideration on appeal. Anderson v. Douglas, 310 Ark. 633, 839 S.W.2d 196 (1992).
. Baker argued that Ark. Code Ann. §§ 21-15-101 to -113 (Repl. 2016), controlled, rather than Ark. Code Ann. §§ 9-28-401 to -409 (Repl. 2015). | [
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KENNETH S. HIXSON, Judge
hNashira Walker appeals after the Washington County Circuit Court filed an adjudication and disposition order finding her children, S.H.(M) (DOB 9-22-2011) and S.H.(F) (DOB 10-11-2013), dependent-neglected. On appeal, appellant argues that (1) the trial court erred in continuing custody of S.H.(M) and S.H.(F) with the Arkansas Department of Human Services (DHS) because DHS failed to prove that it made reasonable efforts to prevent the children’s removal, and (2) the trial court erred in finding that returning custody of the children was contrary to the children’s welfare and that continuing custody with DHS was in their best interests and necessary to protect their health and safety based on the evidence introduced at the adjudication hearing. We affirm.
I. Facts .
DHS has had a long history of involvement with these children and appellant. A protective-services case was opened on August 9, 2016. At that time, DHS offered 1 parenting classes and a bus pass to appellant to prevent removal of the children. On March 6, 2017, DHS filed a petition for dependency-neglect as to S.H.(M) and S.H.(F). In the attached' affidavit, DHS alleged, that appellant had not been in compliance with a protective-services case in that appellant had failed to complete twelve hours of parenting classes, obtain counseling, and undergo a psychological evaluation. DHS additionally outlined a series of physical-abuse claims with appellant hsted as the alleged perpetrator dating back to 2006.
Approximately a week later, DHS filed a petition for emergency custody and dependency-neglect. In the attached affidavit, DHS additionally alleged that during a March 3, 2017 home visit, appellant admitted that' she had not attended parenting classes and that she had used marijuana and cocaine. DHS received yet another referral that appellant was physically abusing S.H.(M) with a deadly weapon on March 9, 2017. During the investigation of that referral,, DHS observed a fresh cut on the back of S.H.(M)’s neck, and S.H.(M) stated that appellant had caused it. Appellant stated that she was unsure whether she had caused it, but she admitted that she could have “accidently” scratched him while she was helping him put on his clothes. Therefore, DHS placed a seventy-two-hour hold on the children. The trial court granted the ex parte petition for emergency custody, finding that probable cause existed for the removal, and the trial court subsequently filed a probable-cause order.
An adjudication hearing was held on April 21, 2017. At the 'hearing, Miranda Coliins testified that she was the family-service worker assigned to' the case. Collins testified that she had personally seen scarring present on S.H.(M)’s body, and photographs depicting the scars and bruises were admitted into evidence. Collins further testified that appellant had ^admitted using cocaine and that she had a positive drug screen in March 2017. Collins indicated that she had concerns about returning custody of the children to appellant after there had been a “true finding” that appellant had' physically abused S.H.(M), leading to the protective-services case being opened. ■ Collins testified that the children had been referred to Chib dren’s House and that appellant was re ferred to complete twelve hours of parenting classes and given a bus pass. Collins explained that the purpose of the parenting classes is to help parents learn better parenting apd discipline skills, including teaching safe and appropriate discipline techniques. However, appellant attended only two of the twelve scheduled classes. Collins opined that appellant’s completion of the parenting classes could have prevented the children’s removal. Collins further testified that the .children had been doing very well both at home and in school since their removal. However, S.H.(M) still cries and becomes very upset on the way to the supervised visitations - with appellant.
Melissa Bedford, a licensed professional counselor, testified that she was seeing S.H.(M), and S.H.(F) for individual and family therapy. Bedford testified that S.H.(M) had been diagnosed with posttrau-matic stress,; disorder; unspecified depressive disorder; child-psychological abuse, confirmed, subsequent encounter; child psychological abuse, confirmed, initial encounter; and parent-child relational problem. Bedford additionally testified that S.H.(F) had been diagnosed with posttrau-matic stress disorder; unspecified disruptive-impulse-control-and-conduct . disorder; child-physical abuse, suspected, initial encounter; child psychological abuse, confirmed, initial encounter; and child sexual abuse, suspected, initial encounter, S.H.(M) had disclosed to Bedford .that he does not feel safe with appellant and that appellant had cut the back of his neck with a knife. S.H.(M) further ^disclosed to Bed-ford that appellant had hurt him but that he felt safe with his “new mom.and new dad,” referring to his foster parents. Bed-ford testified that S.H.(F) was very closed off and that S.H,(F) had witnessed appellant physically abusing S.H.(M).
Bedford testified that her personal interactions with appellant were disheartening. Bedford explained that appellant was very abrupt and that she would say very hurtful things in front of her children. For example, appellant told Bedford in front of her children that she did not think that S.H.(M) was a good human being. Therefore, Bedford recommended that the children continue to receive treatment and expressed severe concerns about the children being returned to appellant.
Michelle Rodarte, a family advocate at Children’s House, testified that she had worked closely with the family and the teachers since they'had begun attending. Rodarte testified that the children had improved since their removal. S.H.(M) was receiving services at Dayspring Behavioral Health and receiving forty-five minutes of speech therapy and forty-five minutes of developmental instruction a week, and S.H.(F) was receiving services at Dayspr-ing Behavioral Health and receiving forty-five minutes, of developmental instruction. Since the children’s removal, they had not missed a day of attendance. Before their removal, S.H.(F) had 75 percent attendance, and S.H.(M) had 78 percent attendance. Rodarte recommended that the children continue to attend Children’s House.
Appellant testified that she is thirty-seven years old; has a total of eight children and four grandchildren; is on disability; . and has diabetes, high cholesterol, depression, and ADHD, She testified that although Collins had told her that she needed to go to parenting classes, she denied that Collins had provided any referrals or bus passes to her. Appellant I ^admitted using cocaine to treat a toothache and that she had also used marijuana in the past, but she denied being a habitual drug user. Appellant further admitted that she- had “whooped” S.H.(M) with a phone cord in 2014. However, appel lant indicated that the- pictures introduced into evidence of the-scars and bruises were -worse than the actual injuries. She further indicated that she did not know how he received the injury on the back of his neck, denied cutting him with a knife, and suggested .that she may have cut his neck while cutting his hair. Appellant requested that the children be returned to her custody.
.After the hearing and.oral arguments, the trial court filed an adjudication and .disposition .order. In the order, the trial court found that DHS had been involved with the family since .2006 and that a protective-services case had been opened on August 9, 2016. The trial court further found that DHS had provided services through that open ease and that the services “did not prevent removal due to Mother admitted to using THC and cocaine. There were allegations of physical abuse in the home.” Additionally, the trial court found that “the efforts made to prevent removal of the juveniles were reasonable based on the family and .juveniles’ needs.” The trial court found by clear and convincing evidence, even though it noted that the burden of proof was only a preponderance of the evidence, that the children were dependent-neglected as defined by the Arkansas Juvenile Code, because the children were • at substantial risk of serious harm as the result' of abuse (physical and emotional), neglect, and - parental unfitness. In the adjudication and disposition order, the trial court based its determination .on the following additional findings: , - -
[T]he [Court has determined], after considering the evidence, presented at this hearing, that these allegations in the .petition and affidavit are true-and eor-■rect. Specifically, based on the testimony of all of the witnesses, including Melissa Bedford and-Mother, that [S.H.(M) ]. has been physically abused by mother. That abuse was|finot a one-time; spank on'the bottom. The Court finds that the pictures of- [S.H.(M) ] are horrible. Mother testified that she “whupped” [S.H.(M)] with a phone cord previously when he was three and a half years old. The Court finds that that is npt appropriate discipline, especially since [S.H.(M) ] was approximately 3 and a half years old at the time Mother testified that spanking with a phone cord occurred. The uncontroverted testimony today is that [S.H.(M)] has Post-Traumatic Stress Disorder. The Court finds that [S.H.(M)’s] disclosures to Melissa Bed-ford are completely credible that his mother’hits him, and his action, clearly show that he has been subjected to ONGOING PHYSICAL, PSYCHOLOGICAL, AND EMOTIONAL ABUSE BY HIS MOTHER. The court does not believe mother’s testimony that she has not “whupped” him since 2014. Given the counselor’s very credible testimony and the pictures, the court has no doubt that mother has been physically abusing [S.H.(M) ] regularly. DHS did provide reasonable efforts to mother to prevent removal. Not only did DHS make a -referral for Parenting Classes for Mother, the most important service that was offered to Mother was counseling for her children and family counseling to work with the children’s counselor on ways to help the children; however, mother made it clear, to the counselor that she did not wish to participate or follow the counselor’s suggestions. Mother only attended two (2) of those appointments with the children’s counselor from October 2016 to March 2017. [S.H,(M) 3 has Post Traumatic Stress Disorder, and shows all the signs that he has been physically, emotionally, • and psychologically hurt by his mother. Mother told Ms. Bedford, the therapist, that [S.H.(M) ] “is a disgusting human being and probably can’t learn the things you are talking about.” (See State’s exhibit 12). The Court finds that all of the signs of physical and emotional abuse are there. The photos introduced of [S.H.(M)’s] back and buttocks show horrific scars from physical abuse by mother.
The Court finds that since coming into care, [S.H.(M)’s] whole demeanor has changed. Now that he is in a foster home, he is happy and smiling. [S.H.(M) ] is doing well in school. .
The Court also finds that it was not appropriate for Mother to use cocaine to alleviate her toothache, regardless of the amount of cocaine used.
The Court notes that the testimony of MELISSA BEDFORD, the children’s therapist, was CREDIBLE.
4. This case was thoroughly reviewed by this Court on this date and the juveniles are in need of the services of the Arkansas Department of Human Services. Return to the custody of the parent is contrary to the welfare of the juveniles and continuation of custody in the Arkansas Department of Human Services is in the best interests of and necessary to the protection of the juvenile’s health and safety.
|76. Proofs of service, adjudication recommendations, a case plan, Social History for the family, drug screen results for Mother, parenting class certificates for Mother, home evaluation for Mary Walker, photographs of scarring on [S.H.(M)’s] neck, back, and buttocks, DaySpring court reports for [S.H.(M) ] and [S.H.(F)], Children’s House court report for [S,H.(M) ] and [S.H.(F) ] were identified and entered into the record.
7.This case was thoroughly reviewed by this Court on this date and the juveniles are in need of the services of DHS. The juveniles shall remain in the custody of DHS, as such placement is in the best interests of and necessary for the protection of the juveniles’ health and safety, as return of the juveniles to the custody of their mother is contrary to the juveniles’ welfare.
8. The Court has reviewed the case plan developed by DHS and approves the case plan. The Court determines that the' case plan meets the juveniles’ special needs and best interests, and specifically describes how the juveniles’ health and safety needs will be addressed.
9. The goal of this case shall be: reunification of the juveniles with their mother.
10. Visitation shall occur as follows: .
Mother shall have visits with the children one (1) time per week for one (1) hour per visit.
Those visits shall be CLOSELY supervised by DHS.
If Mother acts inappropriately during the visits, her visits shall stop.
This timely appeal followed.
II.Adjudication Findings
Adjudication hearings are held to determine whether the allegations in a petition are substantiated by the proof. Ark. Code Ann. § 9-27-327(a)(1)(A) (Repl. 2015). A dependent-neglected juvenile is one at substantial risk of serious harm as the result of, among other things, abuse, neglect, or parental unfitness committed against the juvenile, a sibling, or another juvenile. Ark. Code Ann. § 9-27-303(18)(A). Dependency-neglect allegations must be proved by a preponderance of the evidence. Ark. Code Ann. § 9-27-325(h)(2)(B). In dependency-neglect cases, the standard of review on appeal is de novo, but we do not | «reverse the trial court’s findings unless they are clearly erroneous or cleanly against the preponderance of the evidence. Samuels v. Arkansas Dep’t of Human Servs., 2016 Ark. App. 2, 479 S.W.3d 596. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id. In reviewing a dependency-neglect adjudication, we defer to the trial court’s evaluation of the credibility of the witnesses. Id. The focus of an adjudication hearing is on the child, not the parent; at this stage of a proceeding, the juvenile code is concerned with whether the . child is dependent-neglected. Id.
Appellant does not contest the trial court’s specific findings regarding dependency-neglect. Instead, appellant first argues on appeal that the trial court erred in continuing custody of S.H.(M) and S.H.(F) with DHS because DHS failed to prove that it made reasonable efforts to prevent the children’s removal. We disagree.
Arkansas Code Annotated section 9-27-327(a)(2) provides that at the adjudication hearing, “[ujnless the court finds that a removal occurred due to an emergency and the agency had no prior contact with the family or the child, evidence shall be presented to the court regarding all prior contact between the agency and the juvenile or the family before a finding of reasonable efforts to prevent removal by the Department of Human Services.” In her brief, appellant argues that because DHS had prior contact with appellant and the children, the emergency exception to állow the trial court to deem that reasonable efforts were made does not apply and that DHS was required to present evidence of its reasonable efforts. Appellant further argues that DHS failed to provide critical services that would have ^prevented the removal of her children. Although appellant acknowledges that evidence was presented that DHS offered services to her, such as referring her to complete parenting classes and providing her a bus pass, she specifically alleges that she should-have been referred to a “specialized parenting class to help her learñ more effective parenting techniques for disciplining her children” and that the services provided to her were not reasonable. Therefore, she argues that the trial court’s erroneous findings to the contrary render the resulting adjudication and disposition order void arid reversible.
DHS concedes that the emergency exception was not applicable because the agency’s first contact with the family was not at the time of removal. However, DHS argues that the trial court’s findings should still be affirmed. First, the trial court’s finding that reasonable efforts were made to prevent the need for removal of the children is not clearly erroneous. Collins specifically testified that one of the purposes of parenting classes is to provide safe and appropriate discipline techniques but that appellant failed to take advantage of those services. Moreover, even if the trial court did not find that reasonable efforts had been made, Arkansas Code Annotated section 9-27-335(e)(2)(C) still would have allowed the trial court to remove the children and transfer custody to DHS “despite the lack of reasonable ■ efforts by the department to prevent the need for out-of-home placement if the transfer is necessary ... to protect the juvenile’s health and safety.” Here, the trial court specifically found in its order that “continuation:of custody in the Arkansas Department of Human Services is in the best interests of. and necessary to the protection of the juvenile’s health and safety.” Because we cannot hold that these findings were clearly erroneous, we affirm on this point.
| tnlll. Disposition Findings
Next, appellant argues that- the trial court erred in finding that returning custody of the children was contrary to the children’s welfare and that, continuing custody with DHS was in their best interests and necessary to protect their health and safety based on the evidence introduced at the hearing. Appellant concedes in her brief that there was “dysfunction within [the] family” and that the “family [was] in need of services.” However, she specifically argues that the children should have been returned to her custody while these services were being provided to the family as the “least restrictive disposition consistent with the best interests and welfare of the juvenile and the public.” Ark. Code Ann. § 9-27-329(d). However, pursuant to Arkansas Supreme Court Rule 6-9(a)(1)(B), disposition, review, and permanency-planning orders are appealable only if the court enters an order in compliance with Arkansas Rule of Civil Procedure 54(b). Thus, not every order entered in a dependency-neglect case can be immediately appealed. See Schubert v. Ark. Dep’t of Human Servs., 2009 Ark. 596, 357 S.W.3d 458. As in this case, the trial court in Stoliker v. Arkansas Department of Human Services, 2012 Ark. App. 415, 422 S.W.3d 123, filed an “adjudication and disposition order.” Although we addressed a challenge to Stólikéf’s arguments on appeal regarding the adjudication, finding his child dependent-neglected, we explained that we were unable to address his arguments regarding the disposition. Id. Stoliker had argued that the court’s failure to reunify his child with him and placing custody with the' child’s mother was in error. Id. We explained that issues regarding a trial court’s disposition are not, properly before us- under Rule 6-9(a)(1)(B) in the absence of a Rule 54(b) certification. Stoliker, supra. Because the order here does not include a Rule 54(b) In certificate, the disposition findings are not final and appealable. Thus, we are unable- to address the merits of appellant’s arguments- in her second point on appeal.
Affirmed,
Gladwin and Glover, JJ., agree. | [
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KAREN R. BAKER, Associate Justice
| jAppellant Willie James Noble brings this appeal from the order of the Lee County Circuit Court denying his pro se petition for writ of habeas corpus filed pursuant to Arkansas Code Annotated section 16-112-101 to -123 (Repl. 2016). Noble, who is incarcerated by virtue of a 2015 judgment of conviction for first-degree murder and committing multiple terroristic acts, argued that the writ should issue because the judgment entered in the trial court in his case was illegal. He based the claim on the ground that the trial court ordered a firearm enhancement to be served consecutively to the sentence imposed for first-degree murder. The appeal is dismissed because Noble is no longer incarcerated within the jurisdiction of the Lee County Circuit Court.
In its brief, the State correctly notes that Noble is now housed at a unit of the Arkansas Department of Correction (ADC) located in Pulaski County. In a reply brief tendered to this court on September 7, 2017, Noble gives his return address as the |2Wrightsville Unit in Pulaski County, and the ADC’s website also indicates that he is currently housed at that location.
Any petition for writ of habeas corpus to effect the release of a prisoner is properly addressed to the circuit court in which the prisoner is held in custody, urn less the petition is filed pursuant to Act 1780. See Ark. Code Ann. §§ 16-112-201 to -207 (Repl. 2016). Noble did not proceed under Act 1780. Arkansas Code Annotated section 16-112-105 (Repl. 2016) requires that the writ be directed to the person in whose custody the petitioner is detained. Although a circuit court may have subject-matter jurisdiction to issue the writ, a court does not have personal jurisdiction to issue and make returnable before itself a writ of habeas corpus to release a petitioner held in another county. Williams v. Kelley, 2017 Ark. 198, 2017 WL 2378187; see also Mackey v. Lockhart, 307 Ark. 321, 819 S.W.2d 702 (1991); State Dep’t of Pub Welfare v. Lipe, 257 Ark. 1015, 1017, 521 S.W.2d 526, 528 (1975) (“[T]he controlling question is the identity of the person in whose custody the prisoner is detainéd.”).
Appeal dismissed. | [
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BRANDON J. HARRISON, Judge
11 Sheriff Doc Holladay and Sergeant Lesa Warner (collectively Holladay) appeal the Pulaski County- Circuit Court’s order that (1) found that a prison transport manifest did not fall within the scope of the “undisclosed investigation” exception, to the Arkansas Freedom of Information. Act (FOIA) and (2) awarded attorney’s fees and costs to Bessie Glass. We find no error and affirm.
On 7 December 2015, Johnnie Lee Phillips attempted to escape while being transported with other inmates and pretrial detainees from the Pulaski'County Courthouse to the Puláski County Regional Detention Facility. On December 10, Glass, who is Phillips’s aunt, requested a copy of the “trip 'sheet,” or transportation manifest, which is a list of the passengers who were on the transport vehicle when the escape attempt occurred. Six days later, on- December 16, Glass was denied a copy of the manifest; Sergeant Lesa Warner explained via email that it was exempt pursuant to Ark. Code Ann. § 25-19-105(b)(6) (Repl. 2014) (exemption that excludes “undisclosed investigations by law enforcement agencies of suspected criminal activities” from the FOIA).
On 29 December 2015, Glass filed a complaint against Pulaski County, Pulaski County Sheriff Doe Holladay, and Lesa Warner. Glass alleged a violation of-the F.OIA and requested that Holladay be ordered to provide the manifest. She also requested attorney’s fees and other litigation expenses. Holladay responded with a motion to dismiss, arguing that the complaint failed to state -facts upon which relief .-could be granted. Holladay . also asserted that the manifest had been provided to Glass on 4 January 2016, so the issue was now moot.
In an order filed on 22 April 2016, the circuit court denied Holladay’s motion to dismiss. First, the circuit court found that the - case fell within an exception, to the mootness doctrine because it presented an issue capable of repetition yet evading review. The court also found that the manifest was not subject to the “undisclosed investigations” exception, citing Hengel v. Pine Bluff, 307 Ark. 457, 821 S.W.2d 761 (1991). In Hengel, our supreme court held that jail logs, arrest records, and shift sheets were not sufficiently investigatory in nature to fit within the • exception to public disclosure. The opinion indicated that subsection (b)(6) is meant to exempt only" “internal ’work product’- materials containing details of an investigation.” 307 Ark. at 461, 821 S.W.2d at 763 (quoting J. Watkins, The Arkansas Freedom of information Act 72 (1988)).
In the present case, the circuit court found that the manifest was. “simply a log, a list of names, dates, locations, and times. The nature of the manifest is clearly non-investigative; |a it is not internal work product material, and does , not contain details of any investigation.” Holladay filed a motion .for reconsideration, objecting to the court effectively entering a judgment on the pleadings and requesting the opportunity to file an answer to the complaint and present witnesses at a hearing. Glass petitioned for attorney’s fees and costs in the amount of $12,151.50. The circuit court entered an order denying that its previous order had been a judgment on the pleadings. The court denied the motion for reconsideration and directed that a final hearing be set to address the merits of the case arid appropriate attorney’s fees, if any.
Holladay filed an answer to the complaint on 7 July 2016. Glass moved to strike the answer, arguing that it was filed too late after the denial of the motion to dismiss. Holladay responded and denied that the answer was untimely; Holladay also moved for summary judgment based on essentially the same arguments' made in the motion to dismiss.
The circuit court convened a hearing on 21 October 2016. At the onset, the court announced that it was denying the motion to strike and the motion for summary judgment. The court reiterated its earlier finding that the manifest was not subject to the “undisclosed investigations” exception and that Hengel was controlling. Hol-laday acknowledged that on “most routine days” the manifest would be subject to disclosure under the FOIA but argued that in this. case “the trip sheet contains an exclusive list of all individuals who are witnesses to the escape and/or suspects in the assistance of the escape.” Holladay asserted that the list was being used in an investigation of possible accomplices and was therefore investigatory in nature. The court disagreed and stated, “[I]f Hengel is to have any weight at all, it has to |4be controlling on the issue of whether or not’ a jail log, arrest record[,] and shift sheet are investigatory in nature.”
The court concluded,
[T]he question for this case is whether or not the trip sheet was an Undisclosed investigation. Plainly, it was a public record.... [Tjhere was an investigation and you could put the trip sheet in the investigation, but putting the trip sheet in the investigation does not transform the nature of the trip sheet.
There happened to be an escape. The fact that there was an escape does not define the nature of the-information of who was on the vehicle and that’s all the trip sheet is. It’s just a manifest.
And, after hearing arguments from counsel on the issue of attorney’s fees, the court found that Holladay’s failure to disclose the manifest was not substantially justified. The court’s written order found that the manifest did not fall within the “undisclosed investigations” exception and awarded attorney’s fees and costs in the amount of $8,726.50. This appeal followed.
I. “Undisclosed Investigation” Exception to the FOIA
The issue of the applicability of the FOIA is a question of statutory interpretation. We review issues of statutory interpretation de novo, because it is for this court to determine the meaning of a statute. See Bedell v. Williams, 2012 Ark. 75, 386 S.W.3d 493. This court liberally interprets the FOIA to accomplish its broad and laudable purpose that public business be performed in an open and public manner. See Fox v. Perroni, 358 Ark. 251, 188 S.W.3d 881 (2004). Furthermore, we broadly construe the FOIA in favor of disclosure. See id. Arkansas Code Annotated section 25-19-105(a)(1)(A) (Repl. 2014) provides:
5(a)(1)(A) Except as otherwise specifically provided by this section or-by laws specifically enacted to provide otherwise, ' all public records • shall be open to in spection and copying by any citizen of the State of Arkansas during the regular business hours of the- custodian of the records.
(b) It is the specific intent of this section that the following shall not be deemed to be made open to the public under the provisions of this chapter:
(6) Undisclosed investigations by, law enforcement agencies of suspected criminal activity.
On appeal, after a lengthy overview of Arkansas Supreme Court jurisprudence on the applicability of subsection (b)(6), Holladay argues that the circuit court erred in finding that Hengel controls and in “failing to read Hengel in the context of the later case of Johninson v. Stodola [316 Ark. 423, 872 S.W.2d 374 (1994)].” In that case, Johninson was charged with first-degree murder, and his attorney made a FOIA request for access to the prosecutor’s files on gang membership. Without reviewing the files in camera as requested by counsel, the circuit court denied the request on the basis that the files were exempt under subsection (b)(6). On appeal, our supreme court noted that “investigatory records” are those dealing with the detection of crime and that an “undisclosed investigation” includes those that are open and ongoing. 316 Ark. at 426, 872 SW.2d at 375. However, the supreme court concluded that the circuit court must review the relevant files in camera to determine whether the exemption applies, so it remanded the case without deciding the applicability of subsection (b)(6).
According to Holladay, Johninson stands for the proposition that “it is incumbent upon the trial court to review the relevant information for whether the release of that information would in any way impair or frustrate an ongoing investigation.” And, in this 16case, the manifest was “crucial to an ongoing investigation of Johnnie Phillips’s escape,” so the “undisclosed investigations” exemption applied.
We hold that Hengel is controlling and that the manifest at issue in this case was simply a record kept in the regular course of business and was .not investigatory, in nature such that the exemption would apply. Contrary to Holladay’s argument, we see nothing in Johninson that would change that analysis. We therefore affirm the circuit court’s ruling.
II. Attorney’s Fees'
Attorney’s fees are not allowed except where expressly provided for by statute. Harris v. City of Fort Smith, 366 Ark. 277, 234 S.W.3d 875 (2006). Arkansas Code Annotated section 25-19-207(d)(1) provides that
[i]n any action to enforce the rights granted by this chapter, or in any appeal therefrom, the .court shall assess against the. defendant reasonable attorney’s fees and other litigation expenses reasonably incurred by a plaintiff who has substantially prevailed unless the court finds that the position of the defendant was substantially justified.
Ark. Code Ann. § 25-19-207(d)(1). An award of attorney’s fees will not be set aside absent an abuse of discretion by the circuit court. Harris, supra. The abuse-of-discretion standard is a high threshold that does not simply require error in the circuit court’s decision but requires that the circuit court act improvidently, thoughtlessly, or without due consideration. Grant v. State, 357 Ark. 91, 161 S.W.3d 785 (2004).
Under the plain language of the statute, attorney’s fees shall be assessed against the defendant (1) when the plaintiff substantially prevailed in his suit tó enforce a right granted under the FOIA unless (2) the position of the defendant was substantially justified. Holladay asserts that Glass .did not substantially prevail because the circuit court must be reversed on |7Point I above. Holladay also argues that they were substantially justified in denying Glass’s FOIA request because they justifiably relied on several Arkansas Attorney General opinions that found certain personnel records to be exempt under subsection (b)(6) because they were part of an ongoing investigation. Hol-laday opines that those opinions provided a “reasonable basis” for the denial.
The circuit court rejected this argument below and made the following remarks:
We’re talking about a trip manifest. The question' is whether or not this trip manifest was a public record. If the trip manifest was a public record but—if the question is whether a trip manifest is a public record, the answer easily is (A) it was.
If the question is whether Or not the trip manifest was an investigatory document, was an 'ongoing investigation, the -answer is it wasn’t.
Not a hard question. The fact that Sergeant Warner or others within the sheriffs department- thought it was doesn’t mean they were justified in doing so. ,
There’s no case authority that says they were justified in doing so. There is no decision that the Arkansas Supreme Court says they’re justified in doing so.
As a matter of fact, the Hengel holding stands in stark contradiction of their position. There’s nothing before me that indicates that Sergeant Warner was advised by counsel that her position was justified.
We hold that there was no abuse of discretion on the part of the circuit court. First, because we affirm on Point I above, there can be no argument that Glass did not substantially prevail. Second, the fact that Warner believed that the manifest was '^investigatory and therefore exempt does not mean that she was justified in so believing. Thus, we affirm the circuit court’s award of attorney’s fees.
Affirmed.
Virden, Klappenbach, Glover, and Murphy, JJ,, agree.
Gladwin, J., dissents.
. Pulaski County was later dismissed from the case and is not a party to this appeal. | [
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LARRY D. VAUGHT, Judge
hOn September 23, 2015, the State filed a petition alleging that T.S., a minor, should be adjudged a juvenile delinquent for committing first-degree criminal mischief. After a bench trial, the Ouachita County Circuit Court adjudicated T.S. delinquent. Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Rule 4-3(k) of the Arkansas Rules of the Supreme Court and Court of Appeals, counsel for T.S. has filed a motion to be relieved as counsel and a brief arguing that there is nothing in the record that would support an appeal. The dprk of this court served T.S. with a copy of her counsel’s brief and notification of her right to file a pro se statement of points for reversal within thirty days. She has not availed herself of that | ¡.opportunity. In our review of the record and the brief presented to us, we affirm the adjudication and grant the motion to be relieved as counsel.
On August 6, 2015, three individuals flattened the tires and shattered the windows of Samuel Warren’s vehicle. Warren and Deundra Brown witnessed the incident. At trial, Warren and Brown testified that they knew two of the individuals and that T.S. was one of them. Warren said that T.S. was holding a hammer. Warren and Brown reported the incident to the police and advised them of , T.S.’s involvement. Warren also testified that after the incident, he sent T.S. a Facebook message asking her why she had vandalized his car, and she told him to stop harassing her. Warren’s neighbor, Thomas Melton, testified that he witnessed three individuals damage Warren’s vehicle. The police confirmed that Warren’s vehicle had been damaged.
T.S.’s grandmother, mother, brother, and T.S. testified that she could not have vandalized Warren’s vehicle because' she was at home all day “on punishment” on August 6. T.S. said that Mitchell and another friend named “Liberty” tried to convince T.S.’s mother to let T.S. out of the house on August 6, but they failed. T.S. testified that she and Warren had no problems between them; however, she also testified that when she received a Face-book message from Warren confronting her about his car, her response to him was “stop harassing lame,” Based on this evidence, at the conclusion of the trial, the circuit court adjudicated T.S. delinquent, and this no-merit appeal followed.
The argument section of a no-merit brief “consists ■ of a list of all rulings adverse to the defendant made by the circuit court on all objections, motions and requests made by either party with an explanation as to why each adverse ruling is not a meritorious ground for reversal.” Ark. Sup. Ct. R. 4—8(k)(1) (2016). See also Anders, 386 U.S. at 744, 87 S.Ct. 1396; Eads v. State, 74 Ark. App. 363, 365, 47 S.W.3d 918, 919 (2001). The rule requires that the abstract and addendum of a no-merit brief contain, in addition to the other material parts of the record, all rulings adverse to the defendant made by the circuit court. Ark. Sup. Ct. R. 4-3(k)(1). The test is not whether counsel thinks the circuit court committed no reversible error but whether the-points to be raised on appeal would be wholly frivolous. Anders, 386 U.S. at 744, 87 S.Ct. 1396; Eads, 74 Ark. App. at 365, 47 S.W.3d at 919. Pursuant to Anders, we are required to determine whether the case is wholly frivolous after a full exaihi-n'átion of all the proceedings. Anders, 386 U.S. at 744, 87 S.Ct. 1396; Eads, 74 Ark. App. at 365, 47 S.W.3d at 919.
In this no-merit appeal, T.S.’s counsel’s brief abstracts and discusses three eviden-tiary rulings that were adverse to T.S, and counsel argues that these adverse rulings are not meritorious grounds for reversal. We agree. The circuit court did not abuse its discretion in granting the State's three evidentiary objections.
The only other adverse ruling was the circuit court’s delinquency finding. In reviewing the sufficiency of the evidence in a delinquency case, we apply the same standard of review as , in criminal cases; that is, we view the evidence in the light most favorable to the State, considering only the proof that tends to support the finding of guilt. T.D. v. State, 2011 Ark. App. 486, at 2, 2011 WL 3849485 (citing C.H. v. State, 51 Ark. App. 153, 912 S.W.2d 942 (1995)). We will affirm if the adjudication is supported by substantial evidence, which is evidence that is of sufficient force and character to compel a Conclusion one way or the other without resorting to speculation or conjecture. Id.
T.S. was adjudicated delinquent for committing first-degree criminal mischief. A person commits the offense of criminal mischief in the first degree if he or she purposely and without legal justification destroys or causes damage to any property of another. Ark. Code Ann. § 5-38-203(a)(1) (Repl. 2013).
In the case at bar, substantial evidence supports ’the circuit court’s delinquency finding. The court found that two witnesses to the incident, Warren and Brown, positively identified T.S. as one‘of the people who damaged his car. The evidence demonstrated that Warren and Brown knew T.S. and that Warren knew her well. The court specifically found that Warren’s testimony was credible. Warren’s neighbor confirmed that three people vandalized Warren’s vehicle, and the police confirmed the damage.
The circuit court further found that the testimony of T.S. and her witnesses was not credible. The court did not believe that ■they specifically remembered that on August 6—the day .of the incident—that T.S. was “on punishment.” The court also found T.S.’s response to Warren’s Facebook message odd in light of her testimony that she and Warren had been on good terms and that she had nothing to do with the vandalism. The court questioned why T.S.’s best friénd “Liberty” did not testify to corroborate T.S.’s testimony, and the court,sug gested that T.S.’s brother fit the description of the male who was involved in the vandalism.
| ¡¡Accordingly, based on our review of the record and counsel’s brief, we hold that counsel has complied with the requirements of Anders and Arkansas Supreme Court Rule 4—3(k)(1) and that the appeal has no merit. We therefore affirm the delinquency finding and grant counsel’s motion to be relieved.
Affirmed; motion to be relieved granted.
Harrison and Glover, JJ., agree.
. This is counsel’s second attempt to file a motion to be relieved as counsel and a no-merit brief. In the first attempt, we denied counsel’s motion to be relieved and ordered rebriefing based on briefing deficiencies. T.S. v. State, 2017 Ark. App. 398, 2017 WL 2683947. In this second attempt, counsel has corrected the deficiencies.
. The other identified individual was Tiana Mitchell. Warren and Brown testified that Mitchell and T.S. had been “best friends” with Warren. Mitchell and Warren had lived together (and T.S. often spent the night with them) until a couple of weeks before the August 6, 2015 incident. There was testimony that Mitchell and Warren had a dispute about one of Mitchell’s visitors; Warren moved out of their apartment; Mitchell threw Warren’s clothes and furniture out of the apartment; Mitchell told Warren’s friends that she wanted to fight him and bum his furniture; and Mitchell and T.S. had been looking for Warren. Testimony revealed that the third individual was a male who Warren believed to be T.S.’s brother. | [
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BRANDON J. HARRISON, Judge
_JjThe Sebastian County Sheriffs Department (Department) appeals the opinion of the Arkansas Workers’ Compensation Commission (Commission) that affirmed and adopted the opinion of the administrative law judge (ALJ) finding that Victoria Hardy is entitled to benefits under Ark. Code Ann. § 11-9-505(a) (Repl. 2012). We affirm.
Hardy, an employee of the Department, sustained a compensable right knee injury on 2 September 2012 and was awarded a twenty-percent impairment rating. She sustained a second compensable injury to her right knee on 22 August 2013 and eventually underwent a total knee replacement. In April 2016, the ALJ convened a hearing to determine, among other things, Hardy’s entitlement to (1) a permanent impairment rating regarding her total knee replacement, (2) additional medical treatment, and (3) benefits under Ark. Code Ann. § 11-9-505(a).
laHardy testified to the following: In April 2015, she was taking the drug Lyrica for nerve damage from the knee surgery, and due to her pain level, her dosage of Lyrica had been doubled. Almost immediately after the dosage increase, she began stuttering. She attempted to contact her treating physician, Dr, Heim, but she was unable to reach him, and she eventually requested a change of physician and began seeing Dr. Hamby. At the time of the hearing, she still had problems with pain in her knee, and while she was still employed by the Department, she was on “medical catastrophic leave.” She was able to return to work for a while after her knee replacement, but the stuttering rendered her unable to perform as a law enforcement officer because she could not communicate quickly and clearly. She asked to be considered for training to keep her training up-to-date, but that had not happened. She described a couple of instances in April 2015 in which Captain Miller, her supervisor, sent her home from work, and she had not worked since then. She did not voluntarily stop working for the Department and “would go back today if [she] could.”
On cross-examination, she quantified her present amount of stuttering as “a lot.” She agreed that she had trouble communicating and said that there were no jobs currently available at the Department that she could do. She said she had worked in the control room after her knee replacement, but she was not doing that job now because she could not speak on the radio and because she did not have an updated doctor’s release. She explained that she had been, seeing her family doctor for the stutter and that he had taken her off Lyri-ca, put her on gabapentin, and was now weaning her off gabapentin. Drs. Heim and Hamby Rhad recommended that she see a neurologist,, and her family doctor, Dr. Kradel, had opined that one of the side effects--of' Lyrica is unusual changes in mood' or speech patterns.
On redirect, she explained that since the change in medication, her stuttering had gotten better and she was better able to focus. But, she said, her knee pain was much worse. Nevertheless, she thought that if the stuttering were taken care of, she could return to work. She said the last doctor’s note she had releasing her to light-duty work was from January 2015. She stated that she had spoken to the Department a couple of weeks before the hearing about returning to work-and that the human-resources department was “uncomfortable with the lack of an updated doctor’s advisement.” She was advised that she needed a “newer doctor’s note than the one from over a year ago.” On recross, she explained that she had not gotten a new doctor’s release because Dr. Hamby required certain tests before he could make an assessment, and those tests had not been approved by workers’ compensation. At the' conclusion of Hardy’s testimony, the ALJ noted on the record that Hardy’s stutter was “significant.”
Captain John Miller, Hardy’s supervisor, testified that Hardy had returned to work as a control-room operator after her total knee replacement and had no speech difficulties. But, he said, there were a couple of occasions when her medication had caused her to have trouble standing and formulating sentences, and her eyes had appeared bloodshot and watery. He opined that Hardy was overmedicated and stated that he had sent her home because he “was not comfortable having the safety of [his] deputies in somebody’s hands that was basically not capable because of their medication to constantly. be observing of all |4the cameras; to be able to concentrate on what she was doing.” He acknowledged that the job was within the restrictions that her doctor had given her. Miller testified that if Hardy returned to work, he would have a job for her.
On cross-examination, he confirmed that he could assign her to a sedentary duty that did not have the level of responsibility of the control room. He later clarified that he could do so “[w]ith the clearance of her doctor and HR [human resources].” He agreed that the Department had the ability to accommodate Hardy but that it was. up to the human-resources department to “make the call as to whether or not they will actually let her go back .to work.”
In a' July 2016 opinion, the ALJ found that Hardy was entitled to an additional seventeen-percent impairment to her right knee,, resulting in a thirty-seven-percent total impairment. The ALJ .also found that additional medical .treatment by Dr. Hám-by was reasonable and necessary. Regarding Hardy’s entitlement to benefits under § 11-9-505(a), the ALJ found:
After review of the medical records and releases to return to work, it is clear that the claimant had been released by, authorized treating physicians to return to work in a sedentary position. The claimant does have a significant stuttering problem, which she alleges to be related to medications taken for her compensable injury. ‘ However, that is not the subject of the' current hearing before the Commission. That alleged symptom of her compensable injury does, however, affect her ability to perform employment services for the respondent. However, given Captain Miller’s familiarity with the claimant’s stuttering difficulty and physical state, he testified that the respondent has work available for’ the claimant within the restrictions provided by her physi- ■ cians. The claimant has been unable 'to retürn to work at least as of the date-of the hearing in this1 matter due to the human resources department for the respondents unwillingness to return her to work without a more current letter or note from her doctor regarding her restrictions.’ It is 1 ¿unreasonable to this Administrative Law Judge to require a more recent off-duty note when the claimant is certainly willing to return to work;- her supervisor indicates that a position .is available within the restrictions that were previously given and no doctor has- changed those restrictions. As such,. I find the claimant is entitled to Arkansas Code Annotated § 11—9— 505(a) benefits in that the respondent has unreasonably refused to,return the claimant to work when, according to her supervisor, work is available within her restrictions. The unreasonableness exists with the fact that, the human resource department believes a newer mandate of restrictions is required to return.her to-work. The claimant has proven by a preponderance of the evidence that she is entitled to A.C.A. § 11—9—505(a) benefits in this matter.
The Department appealed to the full Commission; and in a January 2017 opinion, the Commission affirmed and adopted the ALJ’s opinion as its own. One commissioner dissented on the § 11—9— 505(a) issue and found that Hardy had failed to prove that she was entitled to those benefits. The Department has now timely appealed to this court.
We review the Commission’s decision in the light most favorable to its findings and affirm when the decision is supported by substantial evidence. Parker v. Atl. Research Corp., 87 Ark. App. 145, 189 S.W.3d 449 (2004). Substantial evi dence is evidence- that a reasonable mind might accept as ■ adequate to support a conclusion. Id. The issue is not whether the appellate court might have reached a different result from the Commission, but whether reasonable minds could reach the result found by the Commission: if so, the appellate court must affirm. Parker v. Comcast Cable Corp., 100 Ark. App. 400, 269 S.W.3d 391 (2007).
| ^Arkansas Code Annotated section 11-9-505(a)(1) states:
Any employer who without reasonable cause refuses to return an employee who is injured in the course of employment to work, where suitable employment is available within the employee’s physical and mental limitations, upon order of the Workers’ Compensation Commission, and in addition to other benefits, shall be liable to pay to the employee the difference between benefits received and the average weekly wages lost during the period of the refusal, for a period not exceeding one (1) year.
Before Ark. Code Ann. § 11-9-505(a) applies, the employee must prove by a preponderance of the evidence that (1) the employee sustained a compensable injury; (2) suitable employment which is within the employee’s physical and mental limitations is available with the employer; (3) the employer has refused to return the employee to work; and (4) the employer’s refusal to return the employee to work is without reasonable cause. Clayton Kidd Logging Co. v. McGee, 77 Ark. App. 226, 72 S.W.3d 557 (2002).
The Department argues that Hardy does not qualify for benefits under this four-part test because “[t]he employer' did not refuse to return Appellee to work, she was unable to perform the job for reasons that have not been shown to be related to her compensable injury.” The Department also asserts that it. acted reasonably in “keeping the Appellee off work while she tried to get her. stuttering and medication problems resolved.” In support, the' Department relies on Hardy’s own testimony that the problems with her medication have not been resolved, that -she still has difficulty communicating, and that there were no jobs currently available at the Department that she could perform. It alleges that the ALJ and the Commission arbitrarily disregarded this testimony and “focused only on the restrictions regarding the knee and ignored the intoxication.”
|7In response, Hardy notes Miller’s testi-. mony that the Department could accommodate her restrictions and argues that this testimony should not be ignored just because Hardy could not identify a particular job at the Department that met her restrictions. She asserts that the ‘Department presented no testimony to refute Miller’s testimony and that there was no evidence that the intoxication issue that existed in April 2015 was still present at the time of the hearing. She contends that the Department had the burden of showing that it had reasonable cause for refusing to return her to work and that it failed to meet that burden in light of Miller’s testimony that there was work available.
In its opinion, the ALJ found that Hardy had been released to work with restrictions, that Miller had stated that jobs were available within those restrictions, and that the Department was unreasonable. in requiring an updated doctor’s release to work. The Department fails to challenge that finding on appeal and instead argues that it acted reasonably in releasing Hardy from work in April 2015 due to complications from her medication. The Department asks us to assign more weight to Hardy’s testimony, while Hardy places more emphasis on. Miller’s testimony. But it is within the Commission’s prov ince to determine credibility, weigh the evidence, and resolve conflicts in medical testimony and evidence. Godwin v. Garland Cty. Landfill, 2016 Ark. App. 498, 504 S.W.3d 660. The Commission is not required to believe the testimony of any witness but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief. Sandeford v. United Parcel Serv., Inc., 2014 Ark. App. 228, 2014 WL 1396660. It is not the role of the appellate court to weigh the evidence and judge the credibility of the witnesses. Id.
| sIn this case, the Commission clearly found Miller’s testimony to be credible. Thus, we hold that the Commission’s decision to award benefits pursuant to § 11-9-505(a) is supported by substantial evidence and affirm.
Affirmed.
Glover and Vaught, JJ., agree.
Under Arkansas law, the Commission is permitted to adopt the ALJ’s opinion. SSI, Inc. v. Cates, 2009 Ark. App. 763, 350 S.W.3d 421. In so doing, the Commission makes the ALJ’s findings and conclusions the findings and conclusions of the Commission. Id. Therefore, for purposes of our review, we consider both the ALJ’s opinion and the Commission’s majority opinion. Id. | [
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McCulloch, C. J.
Appellee, Road Improvement District No. 3 of Poinsett County, was duly formed by an order of the county court of Poinsett County entered July 12, 1917, on petition of a majority of the owners of real property in the proposed district. The route of the road was specifically described in the petition, and was to begin at the town of Marked Tree and run thence east and north to the town of Lepanto, and thence northeasterly to the Mississippi County line, covering a total distance of about fourteen miles.
Appellants were at that time, and are now, the owners of land situated in the district as originally proposed, and they appeared in the county court and presented objections to the inclusion of their lands in the district, and the court in rendering final order forming the district eliminated the lands of appellants from the district. There was no appeal from that order of the county court.
The commissioners of the district proceeded with the plans for the construction of the proposed improvement, but upon the recommendation of the engineers decided to alter the plans by shifting the route of the road one-fourth of a mile from the original route as originally planned for a distance of one mile. Further alterations were made in the plans so as to construct six separate laterals in the aggregate covering a distance of 18% miles in length. The plans as thus altered were submitted to the county court by the commissioners and approved, and the court appointed the members of the board of assessors to assess benefits. The assessors proceeded to make the assessment of benefits, and included in their assessment lists the lands of appellants, which had been eliminated from the boundaries of the district. On the filing of the report of the assessors the county court ordered publication to be made, which was done, and the assessments were on a subsequent day approved by order of the county court, and the boundaries of the district were extended so as to include the lands not within those boundaries according to the order as originally entered forming the district. This order was rendered by the court on October 11, 1918, but part of the order, viz.: That part which extended the boundaries of the district, was omitted from the entry and was subsequently, on January 6, 1919, entered nunc pro tunc, so as to correct the omission. Appellants filed their petition in the circuit court of Poinsett County on November 12, 1919, praying for a writ of certiorari to bring up the record of the proceedings of the county court and that those portions of the order of the county court extending the boundaries of the district and approving the assessments on appellants ’ lands be quashed. The record was brought up under the writ, but on final hearing of the cause in the circuit court relief as prayed for by appellants was denied and their petition was dismissed.
The contention of appellants is that the original order of the county court eliminating their lands from the boundaries of the district, as formed, is conclusive of the power to tax those lands for the construction of the improvement, and that the county court was without jurisdiction subsequently to extend the boundaries so as to reinclude those lands and to assess them. If the contention of appellants is correct that the court had no authority under the statute to reinclude the eliminated lands and to assess the benefits, then the court was without jurisdiction over these lands, and certiorari was the proper remedy to reach the void orders of the county court in order to quash them. Griffin v. Boswell, 124 Ark. 234.
The road district was created pursuant to the terms of the general statute of March 30, 1915 (Acts 1915, p. 1400), and section 2 of that statute provides that in passing on the petition for the formation of such a district “if the county court is of the opinion that any part, or parts, of the territory included in the petition and plat is not benefited by the proposed improvement, the court may, in the order creating said district, eliminate such territory from the boundaries of the district.” Section 15 of the statute reads in part as follows:
“Whenever the commissioners find that other lands not embraced within the boundaries of the district are benefited by reason of the improvement made, or about to be made, they shall instruct the assessors herein provided for to assess the benefits accruing to such lands by reason of the improvement, and shall file a special report in the county court setting up the lands so benefited together with assessment of benefits made by the assessors of the district. * * * At the hearing which shall not be held earlier than five days after the last insertion of said notice, the county court shall investigate as to whether the land beyond the boundaries of the district are really benefited by reason of the improvement, and, if it finds that said lands are benefited, the boundaries of the district will be so extended as to embrace the land so benefited and the county court at the same time shall also consider the assessment of benefits so made on said land and enter its finding thereon in accordance with section 12 of this act.”
One of the contentions of learned counsel for appellees in support of the validity of the court’s order re-including the lands of appellants is that the original order of the county court eliminating those lands from the boundaries of the district and creating the district with those lands eliminated constituted the formation of the district as if these lands had never been included in the petition and left the other provisions of the statute governing such proceedings in full operation. In other words, the contention is that the district stood as if appellants’ land had never been included, and that if it was subsequently ascertained by the board of assessors that those lands would be benefited the boundaries of the district could be extended under authority of section 15 of the statute, quoted above, so as to include those lands and authorize their assessment.
This view of the statute would put the two sections (section 2 and section 15) in conflict with each other, for one of the sections authorizes the elimination of lands from the boundaries of the district and the other authorizes the extension of the boundaries so as to include new territory; and if both sections are operative upon the same lands, then the two orders of the court thereunder would be conflicting. The manifest purpose was to provide a method in section 2 for the adjudication by tbe county court in advance of tbe question of benefits to given tracts of land of objecting owners. Tbe owner of land has a right to appear in the county court when the district is to be formed and raise an issue of anticipated benefit to his land, and if the court on the hearing finds that the lands will not be benefited there must be an order excluding the same from the boundaries. Such an order constitutes a final adjudication of the question of benefits to those lands. Section 15 was intended to afford a remedy for the inclusion of lands which had not theretofore been included in the proceedings and which had not fallen within the adjudication of the court with respect to benefits. The two statutes as thus interpreted operate in harmony and present no conflict. This is also in accord with the decision of this court in the recent case of Harrison v. Abington, 140 Ark. 115, which construed a special statute, but involved the application of the same principle in the interpretation of two apparently conflicting sections of a statute.
The next argument of counsel in justification of the order extending the boundaries so as to include appellants’ lands was that there was an alteration of the plan so as to change the route of the main road and to provide for the construction of laterals which brought these lands within the range of anticipated benefits. Some of these lands are situated east and some west of the route according to the original plan. The route was changed to get nearer some of the excluded lands and the laterals were provided in the new plans in order to benefit the excluded lands. The question whether or not the alteration of the plans justified the reinclusion of appellants’ lands within the boundaries of the districts turns on the validity of the alteration of the plans. The authority to make alteration is found in section 16 of the statute, which reads in part as follows:
“If the commissioners find it necessary and to the best interest of the district at any time before the improvements are made to make any alteration or change in the plans and specifications, or the route of the road to be constructed, or that it is necessary to construct any additional laterals or extensions within the boundaries of the district not provided for in the original plans, or find that any road or roads in the course of construction should 'be extended in the additional territory not included in the original district, they shall have the engineer for said district or the State Highway Engineer, as the case may be, to make plans and estimates of the cost of such changes, laterals or extensions. * * * If the county court finds at the hearing above provided for that it is to the best interest of the district to make any change or alteration, or construct any lateral road or to extend any road into adjoining territory, or to extend the boundaries of the district so as to include adjoining territory, it shall make an order extending the boundaries of the district approving the changes submitted or the construction of any lateral road or extension as the case may be, and from the finding of the county court thereupon appeals may be taken by complying with section 14 of this act.”
This section, it will be observed, authorizes three things: The alteration of the plans and specifications with respect to the character of improvement to be made; the change of the route of the road to be constructed; and also the construction of additional laterals and extensions. These are the alterations which form the basis of the extension of boundaries so as to include new territory. In Rayder v. Warrick, 133 Ark. 491, we construed this section with respect to the authority conferred in the two particulars first mentioned above, and we held that the operation of the statute was limited to immaterial changes in the plans and specifications and the route of the road which do not change the character of the improvement. In summing up on this subject it was said: “We think section 16 intended to give the commissioners the power to alter the plans and to change the route in order to better carry out the improvement as originally contemplated, but it -does not authorize them to change the plan of the improvement to a wholly different one or construct it over a wholly different route. The construction we have placed upon the act tends to give effect to all the provisions of section 1 and section 16 and to harmonize their different provisions; thus breathing life into every part thereof, instead of making them inconsistent with each other.”
In the later case of Hout v. Harvey, 135 Ark. 102, we reaffirmed the interpretation given to the statute in Rayder v. Warrick, supra, but said that “in each instance it must remain as a question to be determined upon the particular facts, as to whether or not the alterations are such as to fall within the kind authorized by the statute. ’ ’
Section 16 also came up for interpretation as to that part which authorizes the construction of additional laterals and extensions in the case of Harris v. Wallace, 139 Ark. 184, and according to the views of the majority of the judges there expressed (notwithstanding the resultant reversal of the case by reason of the conflicting views of the judges) the authority under the statute to construct such laterals and extensions is not confined to immaterial ones necessarily in substantial conformity with the original plans. Treating that decision as establishing the proper construction of the statute, we have an interpretation of the whole of section 16 that changes with respect to the character of the improvement and the route of the road must be confined to such changes as are consistent with the original plans and not changes to a different plan, according to a different route, but that substantial laterals and extensions ■ are authorized.
The further question is then presented whether or not the changes in the route are in conformity with the original plans or whether they constitute an abandonment of the original route and a change to a wholly different route. There was, as before stated, a change in the route by shifting it a distance of one-fourth of a mile, running for a distance of one mile. This necessarily constituted the adoption of a different route and not merely a slight change in conformity with the original route. It is conceded that this change was made for the purpose of benefiting appellants’ lands, which, according to the judgment of the county court, would not have been benefited by the original improvement. This contention of counsel necessarily implies a substantial change. in the route. It is, in other words, a substitution of an entirely new route for the one specified in the original plans upon which the petition of property owners was based. That is precisely what we held in Rayder v. Warrick, supra, could not be done. The laterals contemplated by the altered plans were authorized according to the decision in Harris v. Wallace, supra, but in testing the validity of the adoption of the new plans we must take them as a whole, for we are not at liberty in this proceeding to discard that which is beyond the statutory authority, leaving intact that part which is within the limits of such authority.
The scope of the present proceeding is confined to the inquiry concerning the right to tax the lands of appellants ; and if the alterations as a whole are unauthorized, the right to tax these lands, which is dependent upon the validity of those alterations, fails.- This is so because we do not know, and can not know, to what extent the different changes in the plans with respect to the route and the construction of laterals entered into the assessment of benefits. In other words, we hold that the original elimination of these lands from the boundaries of the district is conclusive as to the power to tax them unless authorized changes in the plans be made so as to introduce new elements which affect these lands, and where, according to the face of the proceedings, the alteration of the plans is void, the power to assess these lands fails. In this proceeding we inquire into the validity of the proceedings for the sole purpose of determining the jurisdiction of the court to approve assessments on lands of appellants, and no further.
Finding, as we do, that on the face of the record made in the county court the proceedings against the lands of appellants are void, the judgment of the circuit court is reversed, and the cause remanded with directions to enter an order and certify it down to the county court quashing those proceedings to the extent indicated. | [
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McCulloch, C. J.
On July 7, 1919, the PulaskiLonoke Drainage District was duly organized by order of the circuit court of Pulaski County on petition of a majority of the owners of real property in the district, and three commissioners were appointed. The proceedings were pursuant to the general statutes with respect to the organization of drainage districts. Act No. 279, session of 1909, as amended by Act No. 221, session of 1911, and Act No. 177, session of 1913.
On August 2, 1919, the circuit court of Pulaski County entered an order reciting the resignation of the three commissioners tendered in open court and the appointment of appellees as 'commissioners to fill the vacancies caused by said resignations. Appellees subsequently took the oath and organized themselves into a board of commissioners and proceeded to form plans for the construction of the improvement and to contract for the sale of bonds.
Appellant, who is the owner of real property in the district, then instituted this action in the chancery court of Pulaski County to restrain proceedings on the ground that the appointment of appellees as members of the board of commissioners was illegal and void in that the three old commissioners had not in fact resigned; and also to restrain the issuance of bonds on the ground that there had been no advertisement of the sale of bonds and no competitive bidding.
In the hearing before the chancery court appellant sought to prove by oral testimony that the commission ers had not in fact voluntarily resigned, hut had been forced out by the circuit judge. Appellee met this proof with oral testimony tending to show that the old commissioners voluntarily resigned at the suggestion of the circuit judge on account of material disagreements between the commissioners and lack of harmony in conducting the affairs of the district. Under the statute the circuit court was authorized to remove commissioners for cause and upon notice, and to fill vacancies caused by resignations, or otherwise. The order of the circuit court recites the resignation of the old commissioners. This is a collateral attack on the validity of the appointments ; and whether the order of the court be treated as a removal of the old commissioners or the resignation of the commissioners, the appointments can not be collaterally attacked by the owner of property in the district.
In answer to the other contention, it is sufficient to say that the statute does not require advertisement of the sale of bonds. Section 15 of the act of 1909, supra, provides that 1 ‘ the board may borrow money at a rate of interest not exceeding six per cent, per annum, may issue negotiable bonds therefor, signed by the members of the board, and may pledge all assessments for the repayment thereof.” The statute is silent as to the method of proceeding to borrow money and issue bonds. The proof in this case does not show any fraud or bad faith on thd part of the commissioners or lack of diligence, or that the bonds were sold for an inadequate price, or that the transactions contained any elements of improvidence.
The decree of the chancery court was correct, and the same is affirmed. | [
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Hart, J.
(after stating the facts). The court was right in directing a verdict for the plaintiff. It is true both according to the allegations of the complaint and the averments of the answer that the money was in the possession of the defendant, but the mere possession of the money by the defendant could not raise any presumption of a gift to him. Neither was he a competent witness to establish the fact that Hemann had given him the money in his lifetime. Such testimony would clearly be within the inhibition of the Constitution which provides that in an action by or against the executors and administrators in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other as to any transaction with or statements of the testator or intestate unless he is called to testify thereto by the opposite party. Wilson v. Edwards, 79 Ark. 69, and Carter v. Younger, 123 Ark. 266, and cases cited. So all the testimony that went to the jury was that C. H. Hemann lived at the home of the defendant for some time before he died and that Hemann buried the money involved in this lawsuit.
The defendant in his answer admitted that the money was in his possession. No higher proof was necessary than this admission of the defendant that he had the money in his possession to warrant the court in directing a verdict for the plaintiff. It is true that the defendant sought to justify his possession by a gift from Hemann in his lifetime, but it devolved upon him to establish that fact by proof, and, not having done so, the court properly directed a verdict for the plaintiff.
The judgment will therefore be affirmed. | [
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Hart, J.
It is conceded by counsel on both sides that the issues raised by this appeal are:
First. Whether or not act 99 of the Acts of 1919 regulating the seining of fish other than game fish in certain lakes in Chicot County is constitutional; and,
Second. Whether this act has been repealed by the general game and fish law subsequently passed at the same session of the Legislature.
Act 99 was approved February 20, 1919. See Special Acts of 1919, p. 177.
Section 1 of the act provides that the county judge of Chicot County may issue a license or licenses for the purpose of catching buffalo, gar and cat fish in the waters of Lake Chicot and other lakes in Chicot County with a seine not less than 300 feet long and with meshes not less than four inches square and that said license or licenses shall be awarded to the highest competent and responsible bidder after being duly advertised under the terms of the act.
Section 3 makes it unlawful for any person to seine or catch any fish in said waters except as provided by law and makes the violation of the act á misdemeanor.
Section 6 provides that the provisions of the act shall be cumulative of other laws for the protection of fish, and that only such laws as are in direct conflict with the act are repealed.
This court has said that fish are ferae naturae, and as far as any right of property in them can exist it is in the public or is common to all. Hence the court has recognized that the Legislature may pass laws regulating and restricting the common right of individuals to catch fish for the purpose of protecting the same from extinction. To accomplish this purpose, the Legislature may pass laws regulating the rights of each individual in the manner of taking and using the common property. Lewis v. State, 110 Ark. 204. So where the necessity exists for the preservation of wild game and fish in certain localities of the State, the Legislature may, in the exercise of the police power, pass game and fish laws for such localities. Lewis v. State, supra, and Sherrill v. State, 84 Ark. 470. This power is conceded by counsel, but it is said that such laws must apply in such localities to all persons equally. Counsel claims that it is a matter of common knowledge of which the court will take judicial notice that buffalo and cat fish are edible fish, and urge that it is- contrary to the principles of law announced in the above decisions that the catching of these fish with a seine in the waters of Lake Chicot and the other designated lakes in Chicot County should be let to the highest bidder.
In Smith v. Maryland, 59 U. S. (18 How.) 71, the Supreme Court of the United States recognized that it has become a settled principle of public law that the power resides in the several States to regulate and control the right of fishing in the public waters within their respective jurisdictions.
In State v. Lewis, 20 L. R. A. 52, the Supreme Court of Indiana, after recognizing this rule, said: “We think this states the true rule, and if, as we have said, the public has an interest in their protection and growth, and the Legislature has the right to prohibit their being taken from the waters during certain seasons of the year, and by certain means, then the Legislature has exclusive control over the matter, and may prohibit their destruction and prohibit their being taken from the waters.in any other manner than that prescribed by statute, for, if the Legislature has any control over the subject, it has full control, and is the exclusive judge as to the extent and manner in which they shall be lawfully taken from the water.” See also Lawton v. Steele (N. Y. Court of Appeals), 7 L. R. A. 134, and People v. Collison (Mich), 48 N. W. 292. So it may be said, in the exercise of its plenary power over the taking of fish, the State may regulate the manner thereof, and the necessity of particular regulations is a legislative question. The courts will not set up their judgment against that of the Legislature and hold a police law to be invalid unless it is clearly shown to have no reasonable tendency to accomplish the desired end.
Section 4 of the act provides that any species of game fish caught in the meshes of the seine which is being used under provisions of the act, shall be restored unharmed to the waters of the lake. It further • provides that the seine shall not be operated during the spawning season, which is defined.
Section 5 provides that the purpose of this act is largely for the propagation, protection and increasing of the game fish in the waters designated. Hence, if the Legislature in its discretion deems it expedient to get rid of the gar, buffalo, and cat fish in order to propagate and preserve the game fish, the court can not say that it did not have the power to do so, and that its action was arbitrary and unnecessary to accomplish the purpose intended.
It follows that Special Act 99 passed by the Legislature of 1919 and approved February 20, 1919, is constitutional.
It is next contended that this act is repealed by Act 276 passed at the same session of the Legislature and approved on the 17th day of March, 1919. This was an act to amend the general laws of the State creating a State Game and Fish Commission, and to protect game and fish and to regulate the killing and taking of the same.
The special act above referred to, under which this prosecution was instituted, was passed by the Legislature for the conservation of the game fish in certain designated public waters in Chicot County, Arkansas. The lakes in question abounded in game fish of all kinds and also in gar, buffalo and cat fish. It was known that these latter preyed upon the game fish and destroyed their spawn, so that it was thought that the game fish were in danger of extermination or at least of being greatly diminished in quantity. Hence it was deemed expedient by the Legislature to pass the special act in question for their protection. So it will be seen that the right to use the seine to catch gar, buffalo and cat fish was let to the highest bidder in order to protect the game fish and not for the purpose of giving an advantage to the user of the privilege over other individuals. The general act for the protection of game and fish throughout the State did not cover the purpose of the special act. It operated in a different field, and the two acts, instead of being in conflict, supplement each other.
It is well settled in this State that a general act does not repeal by implication a prior special act on the same subject when the acts are not repugnant nor inconsistent. Jones v. Oldham, 109 Ark. 24.
Again, in Martels v. Wyss, 123 Ark. 184, the court said: “Repeals by implication are not favored, and when two statutes covering the whole or any part of the same subject-matter are not absolutely irreconcilable, effect should be given, if possible, to both. It is only where two statutes relating to the same subject are so repugnant to each other that both can not be enforced, that the last one enacted will supersede the former and repeal it by implication.”
The general act does not in express terms repeal the special act, and, tested by the rule of construction just announced, we do not think there is any real conflict between the two acts, and that the latter does not repeal the former by implication.
The defendant was acquitted, and the appeal in this case was taken by the State. The offense was made punishable by a fine and imprisonment in the county jail. Hence there can be no reversal of the judgment in this case. State v. Black, 86 Ark. 567, and State v. Smith, 94 Ark. 368.
It follows that the judgment must be affirmed. | [
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Smith, J.
W. H. Septer, a dealer in grain, feed and hay at Morris, Oklahoma, sold and shipped to W. E. Kefauver, a merchant at Rogers, Arkansas, on September 4 and 5, two carloads of hay under a contract of sale made prior to said dates. The said W. H. Septer shipped the first carload of hay on September 4, and rendered a bill or invoice for same to Kefauver, and on the same date drew a sight draft on Kefauver for $115.48 in favor of the First. State Bank, appellee herein, and attached the bill of lading to said draft; and on September 4, in like manner, Septer shipped the second car to Kefauver and sent him invoice for same, and drew sight draft against him in favor of appellee in the sum of $125.57, to which said draft bill of lading was attached, and these sight drafts were deposited by Septer to his account- with the appellee bank, and on the day they were drawn Septer was given credit on his pass book for the full amount of said drafts, and these drafts were sent by appellee bank, with the bills of lading attached, to the appellant, Farmers’ State Bank, of Rogers, Arkansas, for collection and return. On September 15,1917, Kefauver went to appellant bank and paid the two drafts amounting to $241.05, but induced the appellant bank to withhold or deduct $39 from said amount on account of the alleged damaged condition of one of said oars of hay, and on the same day appellant, by its draft, transmitted to the appellee bank the face of the draft less-the $39'deduction, and thirty-cent collection charge, and at the same time Kefauver wrote Septer thathehad deducted the $39. Immediately after receiv ing the draft from appellant, Toomer,” the cashier of appellee bank, asked Septer if he would stand the $39 deduction, and being told by Septer that he would not, Toomer immediately returned the draft received from appellant bank, refusing to accept the same, and Septer answered the letter of Kefauver, stating that it takes two to make a contract of reduction, and refused to allow said reduction of $39, and thereupon on September 20 Kefauver directed appellant bank to pay the said $39, and immediately, before appellant bank could transmit the amount to appellee bank, Kefauver swore out an attachment against Septer before a justice of the peace and garnished the amount of these drafts in the hands of appellant bank, and made the attachment and garnishment returnable on October 25, 1917, and on the same day the cashier of appellant bank notified appellee by letter that the proceeds of said collection had been attached in its hands, and this notice was received by appellee bank on or before September 22, on which date the cashier of appellee bank wrote to appellant bank that, regardless of the attachment, they expected appellant bank to remit the full amount of said drafts. No appearance or defense was made by Septer to the attachment suit of Kefauver, and no intervention or other claim was filed in said suit by appellee bank, and on October 27 said attachment suit coming on for hearing, and, said appellant bank having answered, the justice rendered judgment against Septer in favor of Kefauver for the sum of $100 and costs, amounting to $114.25, claims for additional damage to other shipments being made in this suit. The justice ’s judgment ordered and adjudged that the garnishee, appellant bank, pay said sum out of the fund garnished in its hands, and said sum was paid by appellant bank to the constable, and on October 30 appellant bank issued its draft for the amount of said collection, less $114.25, in favor of the appellee bank, and sent the same to it by mail on or about November 1, 1917.
Thereafter, on December 20, 1917, suit was filed by appellee bank against the appellant bank, in which it alleged, in substance, the issuing of the drafts by Septer in its favor, and that they were sent to appellant bank for collection and remittance, but that the appellant bank surrendered said drafts and the bills of lading attached to Kefauver, and wrongfully refused to remit the full amount thereof, and wrongfully claimed the right to deduct the $39 at first and afterward the sum of $114.25, and refused to pay the face of said drafts, and prayed judgment against the appellant bank for the amount of the two drafts, less the thirty-cent collection charge made by appellant bank, and returned to the appellant bank the draft which it had sent appellee bank on October 30,1917.
A demurrer to this complaint was overruled, whereupon an answer was filed, praying that Septer and Kefauver be made parties, and by consent the cause was transferred to equity. The cpurt denied the prayer to make Septer and Kefauver parties, and, after a hearing of the cause on its merits, rendered judgment for appellee for the. face of the two drafts, less the collection charges, with the costs of suit, and this appeal is from that decree.
It is apparent that the demurrer to the complaint was properly overruled. It is very earnestly insisted, however, that a good and valid defense to the suit was established by the testimony. This defense, in effect, was that appellee had the drafts for collection only, and that appellant was prevented from remitting the full amount of the drafts by the pendency of the garnishment proceeding. It is apparent that this is a question of fact, and, had a jury so found, we probably would not say that the testimony was not legally sufficient to support the verdict. However, we have the finding of the chancellor against the contention made, and we can not say this finding is clearly against the preponderance of the testimony.
The cashiers of two local banks testified that it was not customary for a bank to receive drafts, with bills of lading attached, except for collection; yet they admitted that this was sometimes done.
It is also insisted that the right to maintain this action is defeated by the showing made that before the trial of this cause Septer had repaid appellee bank the amount of the drafts for which he was given credit at the time the transaction occurred.
It is also insisted that the inquiry of Septer made by the cashier of appellee bank, whether he would stand for the reduction of $39 on account of the damaged condition of the hay, indicated that the bank was acting as Septer’s agent, and not as owner of the drafts from which it was proposed to make the deduction.
These are the principal circumstances relied upon to overturn the finding of the chancellor.
On the other hand, it is shown that Septer carried a large and active account with appellee bank, and Toomer, its cashier, testified that the bank received the drafts, not for collection, but for deposit, and that the' amount thereof became immediately subject to Septer’s check. All the entries on the books of the bank, made contemporaneously with the transaction, including Septer’s pass book, and also the deposit slips, all of which were made at a time when no litigation was contemplated, corroborate the testimony of Toomer.
In regard to the $39 reduction Toomer testified that when he was advised by appellant bank that the deduction had been made he knew nothing of the merit of the claim on which it was based, but he asked Septer about it and asked him if he wished to allow it, intending, if the allowance was made, to charge it to Septer’s account, but, when Septer declined to consent, Toomer wrote appellant bank that appellee bank was the owner of the drafts and to remit their face, less the usual exchange.
It does appear that, after this controversy had arisen but before the trial of the cause in the court below, Septer repaid appellee the amount of the drafts. This apparently was upon the theory that Septer was contingently liable for these drafts, and that it was his duty to wait for the money and to take the chance on its recovery ; but, conceding that such was not the law, there is nothing to indicate an intention to release appellant from a liability then being insisted upon; and that circumstance does not overcome the positive testimony of Septer and Toomer that the drafts were deposited and received in the usual course of business, and that the bank became the owner thereof by becoming debtor to Septer for their face value.
We have several times considered this question, a late case being that of Brown & Oglesby v. Yukon National Bank, 138 Ark. 210, a case not unlike the instant case on the facts, and we there held that, where a draft is indorsed to and' deposited with a bank, which credits the amount to the holder’s account, the bank becomes the absolute owner of the draft, and is entitled to the proceeds of the draft in the hands of a garnishee bank. See also other cases there cited.
Counsel for appellant cite and rely upon the case of Collin County National Bank v. Laser Grain Co., 130 Ark. 396, as sustaining their contention that appellee was not the owner of the drafts in question. In that case, however, a jury had found, under testimony which we said made a case for the jury, that the draft to which the bill of lading had been attached had been received for collection; but here a contrary finding on the facts has been made.
It follows, therefore, if appellee became the owner of the drafts when they were received as deposits, the judgment of the justice of the peace in the garnishment case was void. Septer did not intervene in that suit, and was made a party by the publication of a warning order. The basis of the jurisdiction which the justice of the peace assumed depended upon the fact that property belonging to Septer had been seized within the jurisdiction of the court, and, as it now appears that this judgment was rendered upon a false assumption, it is void.
The decree of the court below is, therefore, affirmed. | [
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Humphreys, J.
On January 29, 1919, appellant instituted suit against appellees in the Pulaski Circuit Court, Third Division, to recover $1,500 and interest thereon at the rate of six per cent, per annum from April 8, 1907, upon a repurchase contract of $1,500 of the stock of the A. J. Neimeyer Lumber Company, a corporation.
The gist of the complaint is that appellant was induced on April 8, 1907, by A. J. Neimeyer, who was the president of said corporation and a large stockholder therein, to purchase $1,500 worth of stock at par, in said corporation, with the understanding that he, A. J. Neimeyer, should repurchase the stock if in the future appellant should not want it, at the par value thereof, with six per cent, for the time appellant held said stock; that on the 28th day of February, 1918, appellant demanded of said appellee that he repurchase said stock in fulfillment of said agreement, but that said appellee failed and refused to do so. The letter containing the inducement for the purchase of the stock was made a part of the complaint, and is as follows:
“A. J. NIEMEYER LUMBER CO.
Manufacturers of Yellow Pine Lumber
Equitable Bldg.
“St. Louis, Mo., 2/23/07.
• “Mr. W. T. McCollum,
c/o Columbia Lumber Co.,
Buckner, Ark.
“Dear Will:
“We are in receipt of a check from Dr. Smith for $600 for stock in our company.
“Now, it has occurred to me that you can afford to take more stock than $600 and I make this offer to you, that you increase it to $1,000, giving us your note for $400, paying it when you can and the note will draw 6 per cent, interest.
“I think this would be a good thing for you to do. It will help you to save your money and I also am satisfied this stock will be a fine investment for you.
“If in the future you should not want this stock, I will take it off your hands and agree to allow you 6 per cent, for the time that you hold it.
“I trust that everything is getting along nicely at lumber and that you help in the woods to keep everything moving along to the best advantage possible for the company.
“Yours very truly,
N/H “A. J. Neimeyer.”
“Mr. McM. took 1,500 and paid for it and has stock certs. ’ ’
On May 28, 1919, appellee A. J. Neimeyer filed a demurrer to the complaint upon the grounds (1) that the complaint did not state facts sufficient to constitute a cause of action; (2) that the action was barred by the statute of limitations; (3) that the action was barred by laches.
Upon hearing, the court sustained the demurrer, and, appellant declining to plead further, dismissed the complaint, from which dismissal an appeal has been duly prosecuted to this court.
Appellant contends that the cause of action did not accrue under the terms of the contract until the 28th day of February, 1918, the date of his demand on appellee and appellee’s refusal to repurchase the stock aforesaid. The soundness of this contention depends upon the correct interpretation of the following clause in the contract: “If in the future you should not want this stock, I will take it off your hands and agree to allow you six per cent, for the time that you hold it.” It is quite clear from reading the clause in connection with the rest of the letter containing it that it was not in contemplation of either party that appellant should make an immediate demand for repurchase of the stock. It was suggested in the letter that, by paying a part cash and executing a note for the balance of the purchase money for the stock, it would enable appellant to save his money. This would indicate that no immediate election as to whether appellant would keep or return the stock was in contemplation of the parties. The fact that, in case appellant did not want the stock, he should receive six per cent, interest on it for the time he should hold it, indicates that it was not in contemplation of the parties that appellant should elect even in a very short time whether he would keep the stock. Under this interpretation of the clause, it cannot be brought within the rule controlling demand paper. Demand paper, under the rule announced in this State, is due immediately, and the statute begins to run from the date of the instrument. Sturdivant v. McCorley, 83 Ark. 278.
We think the proper interpretation to place upon the clause in question is that it was in contemplation of the parties, if, within a reasonable time, appellant should make up his mind that he did not want the stock, appellee Neimeyer would take it off his hands and allow him the amount he had paid therefor, together with six per cent, interest for the time he had kept it. We think it would be a strained construction to say the clause meant that appellant should have all time, or forever, in which to make the election. Such an interpretation would exempt tlie obligation from the statute of limitations altogether. The rule announced in Brooks v. Trustee Co., 136 Pac. 1152, is sound, and we adopt it. It is as follows (quoting syllabus 1) : “An "agreement by a seller of bonds to allow plaintiff to withdraw from her purchase at any time upon return of the bonds after consultation with third persons necessitates plaintiff’s making an election whether to take the bonds or not within a reasonable time.” It will be observed from a reading of the clause in question that the only preliminary action necessary to complete the accrual of his right to return the stock and demand the amount paid, therefor, together with six per cent, interest, rested in him. The contingency upon which his right or claim rested was a power exclusively in himself. Unless required to act within a reasonable time, he could, by non-action, eliminate or postpone indefinitely the operation of the statute of limitations. The doctrine announced in Ruling Case Law, Vol. 17, p. 756, and supported by a large array of authorities, is particularly applicable to the instant case. It is as follows: “When some preliminary action is an essential prerequisite to the bringing of a suit, and such action rests with the claimant, he cannot defeat the operation of the statute of limitations by a failure to act or by long and unnecessary delay in taking the antecedent step. It is not the policy of the law to permit a party against whom the statute runs to defeat its operation by neglecting to do an act which devolves upon him in order to perfect his remedy against another. If this were so, a party would have it in his own power to defeat the purpose of the statute in all cases of this character.” It is conceded that appellant made no demand under the option clause in his contract for a return of his money with six per cent, interest thereon for more than eleven years after the certificate of stock was issued to him. In our opinion, as a matter of law, this was an unreasonable length of time to wait before making’the demand, and, on that account, the action would be barred if not taken out of the opera tion thereof hy the existence of grounds of avoidance. This is a suit at law and the statute of limitations could not be raised by demurrer unless it affirmatively ap-' peared in the complaint that no facts existed which exempted the action from the operation of the statute. This rule on pleading was announced in the early case of Collins v. Mack, 31 Ark. 684, and reiterated in the following cases: Hutchinson v. Hutchinson, 34 Ark. 164; St. L., I. M. & S. R. Co. v. Brown, 49 Ark. 253; Rogers v. Ogburn, 116 Ark. 233. The complaint in the instant case does not affirmatively show that no facts exist which would take the action out of the operation of the statute.
The court, therefore, erred in sustaining the demurrer to the complaint’and, for that reason, the judgment is reversed and the cause remanded with directions to overrule the demurrer to the complaint. | [
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Smith, J.
Appellee recovered judgment on a contract to teach a school for and in the appellant school district. It is said her contract was not valid because only two of the directors had signed it at the time of its execution. The contract called for a four-months school at $60 per month. The school opened October 14, and was closed by the directors on October 16 on account of the influenza epidemic. Thirty days thereafter the third director, who had not signed the contract originally, did sign it, and on December 9 the school was reopened and appellee taught the remainder of the four months. The testimony is conflicting as to why the school was not resumed earlier; but appellee testified, and was corroborated by her father and other witnesses, that during the period of time covered by the contract when the school was not being taught she was offering to teach it and had asked permission of the directors to resume it. This was denied by the directors, who alleged in their answer, and testified at the trial, that appellee refused to finish the school, and that the directors requested her to begin the school earlier after its suspension and insisted that she do so.
The court gave an instruction numbered 4, reading as follows:
“The court instructs the jury that, although you may believe from the evidence that there was no meeting of the board of directors prior to making the contract sued on herein, still, under the undisputed evidence, the directors ratified said contract, and after the ratification it became a binding contract between the parties thereto. ’ ’
It is insisted that error was committed in giving this instruction, in that the jury should have been allowed to say whether the contract had been ratified or not. No error was committed in giving this instruction. The signature of the third director made a valid contract, and the teacher was paid $126 of her salary. Moreover, the directors not only assented to the fact that appellee had a valid contract, but insisted that she perform it, and now defend against this suit upon the ground that she refused to comply with it. In their brief they say: “The three directors swear positively that they did not stop the school. That they did not prevent her from beginning at her will, and that they urgently tried to get her to teach out her term of school and she would not do it. That they had the money to pay her and urgently requested that she teach it out.” School District v. Jackson, 110 Ark. 262; School District v. Hundley, 126 Ark. 622; School District v. Johnson, 129 Ark. 211.
The instructions are not abstracted, and we must, therefore, assume that the case was submitted to the jury under proper instruction's; and as the testimony of appellee and her father was legally sufficient to support a finding that appellee was ready and willing to perform the contract, we can not consider any question of the preponderance of the testimony on that subject.
The-jury returned a verdict in appellee’s favor for $75, and on her cross-appeal it is insisted that the verdict should have been for $111; that if she is entitled to recover at all — and the jury has found in her favor — she is entitled to $111, if entitled to anything. This insistence is answered, however, by saying that appellee filed no motion for a new trial in the court below.
No error appearing, the judgment is affirmed. | [
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Humphreys, J.
Appellant instituted suit against appellees in the Clay Chancery Court, Western District, to enjoin them from cutting timber on a certain tract of land, consisting of 2,463 acres in said district and county.
The bill, in substance, alleged that appellant was the owner of the land and timber standing thereon; that appellees had cut and removed, and were cutting and removing, merchantable timber therefrom and converting same to their own use, without right, to appellant’s damage in the sum of $5,000; that they were not financially responsible; that they claimed the right to cut and remove the timber under a pretended extension beyond December 6, 1918, of a timber contract executed in 1911 by Milita L. Scott to T. E. Day; that, if such extension was made, appellant knew nothing of it and was an innocent purchaser of the land.
Appellees filed an answer, admitting that they had cut and removed, and were cutting and removing merchantable timber from said lands after December 6, 1918, but had cut and removed the timber under contract of date June 30, 1917, with John W. Trotter, who had purchased the lands from Minta L. Scott on May 18, 1917, extending the time for removing the timber until March 1, 1920.
The cause was submitted to the court upon the pleadings, depositions and exhibits thereto, which resulted in a finding that appellant purchased the lands with notice that the timber contract, expiring December 6, 1918, had been extended to March 1, 1920, and a decree dismissing appellant’s bill for want of equity. From the finding and decree, an appeal has been duly prosecuted to this court for trial de novo.
The deposition of John W. Trotter was unsigned. For that reason, appellant filed a motion to quash it. The decree recites that to prevent a continuance for retaking the deposition, appellant accepted the chancellor’s ruling, overruling his motion to quash the deposition. The letters appended to the transcript show that the recitals of the decree in this respect are incorrect, but the letters are no part of the record and can not be considered by the court on appeal. This court is bound by recitals contained in the record as certified; hence, must treat the deposition of John W. Trotter as evidence in the case.
The undisputed facts are as follows: In 1911, Minta L. Scott, the owner of the land, sold the merchantable timber on the land to T. E. Day under written contract, on condition he would cut and remove the timber on 200 acres each year, after a certain period, and return the same- — the timber right expiring on the 6th day of December, 1918. On the 18th day of May, 1917, Scott sold the land to John ~W. Trotter with the aid of appellee. On the 15th day of October, 1917, appellant agreed to ox- change an encumbered flat in Chicago for Trotter’s lands in said county, subject to inspection. Appellant’s broker, Chas. E. Bates, inspected the lands, and, on account of the timber being sold, refused to advise the sale'unless Trotter would pay a difference of $10,000 in cash between the encumbered properties. Trotter acquiesced and a contract was executed on the 27th day of October, 1917, agreeing upon the terms of exchange. By the terms of the contract, it was to remain in the office of Robt. F. Schenck, Trotter’s broker. Trotter then produced a late abstract to the lands and opinion of an attorney showing a merchantable record title, subject to certain mortgages and a timber contract of record from Minta L. Scott to appellee, expiring December 6, 1918. On the 30th day of November, 1917, Trotter paid appellant $10,-000 in cash and he and his wife executed two warranty deeds, conveying the lands to appellant without timber reservations, in exchange for the Chicago flat with a $60,000 incumbrance. The lands were chiefly valuable for the timber and of little value without it. The deeds of Trotter, conveying the lands to appellant, did not contain a timber reservation or refer to a timber contract expiring March 1, 1920.
The fact about which the evidence is in dispute is whether the contract of sale, of date October 27, 1917, contained the following clause: “Subject to a timber contract expiring March 1, 1920.” Upon this disputed point, the evidence of Chas. E. Bates is pitted against that of Robt. F. Schenck and John W. Trotter. Chas. E. Bates represented appellant throughout the negotiations and consummation of the exchange of properties, and Robt. F. Schenck & Co. represented John W. Trotter in the deal.
Charles E. Bates testified, in effect, that the clause in question was not in the contract at the time he signed it for appellant; that Trotter represented to him that there was a timber contract on the land, but could not tell him, in response to repeated inquiries, when it expired; that he concluded from the abstract sent him and the opinion of the attorney upon the title, that the timber contract shown by the abstract in which the timber rights expired on December 6, 1918, was the timber contract which Trotter represented to him as being on the lands; that he never heard of any extension of said timber contract until notified by letter from appellee T. E. Day on May 17, 191i8; that the letter containing the abstract stated: “My (referring to Trotter) abstracts of that land are new ones and brought down to date;” that he called on Mr. Schenck a number of times before the institution of this suit to secure a copy of the contract, but Mr. Schenck was unable to find it, after making a thorough search; that Schenck did not find it until Mr. C. T. Bloodworth went with him to Schenck’s office and told Schenck that he had had a talk with Mr. John W. Trotter only the day before and that Trotter had shown him a copy of the contract which had been sent him by Mr. Schenck; that, although a diligent search had been made by him before this statement, immediately thereafter Mr. Schenck produced the original contract which contained the clause: “Subject to a timber lease expiring March 1, 1920 ;” that prior to producing the contract, Schenck had stated that he did not, and could not, remember just when the timber contract expired; that in Day’s letter informing him that the contract had been extended, the following clause appeared: “I have a statement from Mr. Trotter that he incorporated in his deed to you and in your contract that you took this land subject, to a timber lease expiring March 1, 1920, as that is the contract I have with Mr. Trotter. Kindly let me know if this is in your deed. I have Mr. Trotter’s written statement that this is so, and it is our contract with him.”
Appellee testified that his original timber contract was extended by John W. Trotter, who purchased the lands from Minta L. Scott; that he assisted in the negotiations of that deal, and his remuneration was to be the extension of his timber contract with' Scott from the expiration thereof to March 1,1920; that the original agreement for this extension was made April 30, 1917, but was not reduced to writing for about three months thereafter ; that the extension agreement was reduced to writing and dated back to June 30 and signed by himself and John W. Trotter; that it was the understanding at the time that the extension should be mentioned in the deed from Minta L. Scott to John W. Trotter, which was overlooked in the preparation and execution of that deed; that he wrote letters as late as September 7, 1917, showing that the-extension contract had not been reduced to writing at that time; that, under his agreement with Trotter, the timber extension had not been incorporated in the deed from Scott to Trotter, and that he therefore consulted Mr. Oliver with reference to his right to the extension ; that Trotter had written him repeatedly that the extension was incorporated in his contract of exchange with appellant, as well as in his deeds conveying the lands to appellant; that, for that reason, he wrote the letter to T. E. Day, of date May 17, 1918, asking him whether the timber extension was incorporated in the deeds. The original extension contract of date June 30, 1917, is before the court for inspection of Trotter’s signature, it being contended that the signature evidences the fact that it was written after he had broken his arm in the spring of 1918, and not before the contract of exchange of the properties entered into between Trotter and appellant.
John W. Trotter testified that appellant tinderstood at the time the contract for exchange of properties was entered into that the contract was subject to a timber contract which would not expire until March 1, 1920; that the clause “subject to a timber contract expiring March 1,1920, ’ ’ was in the original and copies of the contract at the time signed; that the copies were made at the time the original was executed; that he compared his copy with the original and took it away at the time; .that he informed Day that the same clause was inserted in his deeds to appellant, because he thought, until after suit was brought, that Schenek had inserted it according to instructions. Trotter filed with his deposition his copy of the contract with appellant, showing that it was made “subject to a timber contract expiring March 1, 1920.” Trotter admitted receiving letters from Day in the summer and fall of 1917, relative to the extension of time for moving the timber. '
Robt. F. Schenck, in the course of his testimony, produced the original contract on a printed form for the exchange of lands, entered into between appellant and John W. Trotter, in which there appears written in pen and ink under a paragraph “subject to” the following clause: “A timber contract expiring March 1, 1920.” There were a number of other entries in the same color of ink and same handwriting, but most of the entries made in the spaces of the blank form were made with a typewriter. Mr. Schenck testified that this clause was in the contract when signed; that, from the beginning, Trotter informed appellant’s broker that the timber had been sold; that, after looking at the lands, appellant’s broker exacted $10,000 in cash from Trotter, in addition to the first proposal of exchange, because the timber had been sold; that the original contract had been in his office, though lost, since its execution, and that no change had been made in it; that, during the time he was searching for the contract, he told Mr. Bloodworth he did not remember how long the timber contract would run; that he found the contract when Bloodworth and Bates were present, in a pigeon-hole to his desk, after having made a diligent search; that he had no interest in the result of the case.-
It is contended that the finding of the chancellor to the effect that appellant purchased the lands with full knowledge of the existence of a timber contract expiring March 1, 1920, was 'contrary to the weight of the evidence. Both Schenck and Trotter gave positive testimony that the clause “subject to -a timber contract expiring March 1, 1920,” was in the contract when signed. Trotter testified that Schenck made him a copy, which he compared with the original, and that he retained the copy which included the clause. The clause was in the copy produced by him and attached to his deposition. The clause was also in the original contract produced by Schenck and attached to his deposition. Schenck testified that the clause was in the contract when signed. Both testified that appellant’s broker was informed from the beginning that the timber had been sold, and that was one reason appellant’s broker required an additional cash payment of $10,000 to be made to appellant.
Bates, appellant’s broker, was quite positive that no such clause was in the contract when signed, else, he says, he would have challenged it. He said he was led to believe, from the abstract and the opinion of Trotter’s attorney, as well as his own, that the timber contract referred to by Trotter as being out against the land was the timber contract executed by Minta L. Scott to appellee Day, the expiration of which was December 6, 1918. It is suggested by learned counsel for appellant that there are circumstances in the evidence challenging the truth of Schenck’s and Trotter’s statements and lending credence to the statement of Bates.
The suggestion is made that the clause was inserted with pen and ink, while other entries were made with the typewriter. An inspection of the contract shows there are entries not challenged also made in the same color of ink and in the same handwriting of the clause in question. So, it can not be well argued that the clause was inserted after the contract was signed because entered with pen and ink. The argument would likewise exclude all other entries and changes made in pen and ink not challenged. The suggestion is also made that because Schenck did not produce the contract before the- statement made by Mr. Bloodworth to the effect that he had seen a copy of it the day before in possession of Trotter, which contained the clause, but did produce the original contract immediately thereafter, is a circumstance tending to reflect upon Mr. Schenck’s testimony. We are unable to draw any inference from the circumstance tending to show that Schenck testified falsely in regard to the clause being in the contract when signed.
The suggestion is also made that the statements of Trotter and Schenok should be disregarded because Trotter told Day the extension of the timber contract had been incorporated in his deeds to appellant, which was not true. Trotter, we think, sufficiently explains this incorrect statement by saying that he directed Schenok to incorporate the clause in the deeds and thought he had done so until after this suit was instituted.
It is also suggested by appellant that if a comparison of Trotter’s signature on the extension contract, which was dated back to June 30, 1917, is made with the signature to the letters written prior to the execution of his contract of sale to appellant, it will appear that the extension contract was not reduced to writing until after Trotter’s arm was broken in the spring of 1918. If not signed until the spring of 1918, it necessarily shows that the timber extension contract was reduced to writing after Trotter sold the land to appellant. Day testified that it was reduced to writing before Trotter sold and conveyed the lands to appellant and such also is the effect of Trotter’s evidence. We are of opinion, however, from a reading of the whole evidence, that Trotter extended appellant’s timber contract to March 1, 1920, before he made the sale to appellant, irrespective of when it was reduced to writing. Appellant is in no position to question the form of the timber extension contract if he had notice of it and bought subject to it. The gist of his action is that he was an innocent purchaser of the lands without notice of appellee’s equities. We think the finding of the chancellor, to the effect that the clause was in the original contract at the time it was signed, is supported by the weight of the evidence. At least, after a careful reading of the whole evidence, we can not say that the finding and decree of the chancellor are contrary to the clear preponderance of the evidence.
The decree is therefore affirmed. | [
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Humphreys, J.
Appellant instituted suit against appellee in the Hot Spring Circuit Court to recover dam ages on account of an injury received to his hand while cleaning up shavings and sawdust in the rear of a planing machine in appellee’s mill. The charge of negligence consisted in appellee allowing a small saw, attached on the back side of the planer, to become covered with sawdust and shavings, while being operated, so that it could not be seen by appellant, and in operating it without a sufficient shield or hood, or notification to appellant of its presence in the pile of sawdust and shavings.
Appellee filed an answer, denying the material allegations of negligence in appellant’s complaint.
The proof offered by both appellant and appellee was directed to the issue of whether or not the small saw attached to the planer was concealed by sawdust and shavings piled around and upon it at the time appellant received his injury.
Appellee, over the objection and exception of appellant was permitted to introduce a photograph of the machine made subsequent to appellant’s injury. This is assigned and insisted upon as reversible error. It is suggested that the photograph, made subsequent to the injury, was not a true representation of the machinery as it existed at the time the injury was inflicted. Tom E. McHenry, a witness, gave testimony to the effect that the photograph was a correct representation of the machinery as it existed at the time of the injury. It is said, however, that the photograph was prejudicial to appellant’s cause of action, because made at a time when there was no sawdust or shavings around or upon it. The court guarded this point by stating to the jury that they should not consider the photograph other than to show the location, height and position of the saw, and should not regard it as evidence tending to show whether or not the saw was covered with shavings and sawdust at the time of the injury. Guarded in this way, we do not see How appellant’s cause of action could Have been prejudiced by tHe introduction of the photograph.
Appellant insists that the court erred in refusing the proffered testimony of Hosey Keytoñ and W. H. Davis in rebuttal, which offer is as follows: ‘ ‘ The plaintiff (appellant) offers the testimony of Hosey Keyton, who is present and who has been under the rule and subpoenaed in this case, who would testify that he worked at the same machine at which Mr. Casey was hurt, as cleanup man, immediately after Mr. Casey was hurt and that the saw was covered entirely up and that the planing machine would not be running thirty minutes until it would be so covered that it was hidden from the view of anyone.
“That W. IT. Davis is in attendance on court, subpoenaed and under rule and was employed as cleanup man after Mr. Casey was hurt, working with Cecil Davis. He was put with him to assist and instruct him as to his duties; and that Mr. Davis would testify that this machine on which Mr. Casey was hurt and the floor was covered in places to a depth of four or five feet and the' saw at which Mr. Casey was hurt was completely covered up in sawdust and shavings so it could not be seen; that the blowpipe was in a defective condition, and the shavings and sawdust were flying thick and fast as testified by the plaintiff (appellant).”
The condition of the small saw upon which the injury was received, with reference to being covered or uncovered by the sawdust and shavings produced in the operation thereof, could not be determined by proof of whether covered or uncovered with sawdust and shavings at a subsequent time, for this condition depended entirely upon the operation thereof and how often or whether the shavings and sawdust produced by it had been cleaned up. For this reason, the offered testimony of W. H. Davis was not admissible. He did not pretend to say that he was put to work at that place immediately after appellant was injured. At the time his testimony relating to the same issue was offered in chief, he admitted that he went to work after the injury happened, but would not say whether it was one or two days thereafter. Seemingly, for this reason, appellant’s counsel withdrew the testimony of W. H. Davis in this respect offered as testimony in chief. It was not competent in the development of appellant’s case in chief, and, for the same reason, not competent as evidence in rebuttal.
The proffered evidence of Hosey Keyton in rebuttal was clearly admissible, had it been offered in the development of appellant’s case in chief, because he testified that he went to work as clean-up man around this particular machine immediately after appellant was hurt. While admissible in the development of appellant’s case in chief, it was not necessarily admissible, in rebuttal. The offered evidence was responsive in the main issue joined in the pleadings as to whether or not the saw was covered with sawdust and shavings at the time the injury occurred. It was appellant’s privilege to introduce Keyton’s testimony in the development of his case in chief, and, having failed to do so without offering some good excuse for the failure, he could not insist upon the introduction of the testimony in rebuttal as a matter of right. This holding is in keeping with the rule announced in the case of Bain v. Fort Smith Light & Traction Co., 116 Ark. 125.
No error appearing, the judgment is affirmed. | [
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Hart, J.
(after stating the facts). It is sought to uphold the judgment on the ground that no motion for a new trial has been filed. The Supreme Court can review for errors manifest from the face of the judgment where the judgment contains a recital of the facts upon which it is based. Baucum v. Waters, 125 Ark. 305, and Davies & Davies v. Patterson, 132 Ark. 484. The facts upon which the judgment of the circuit court is based are recited in the judgment, and we can, therefore, review for errors apparent from the face of the record.
Doctor Poynor was appointed registrar pursuant to an act creating the State Board of Health and Bureau of Vital Statistics. See Acts of 1913, page 352. The services performed by him were pursuant to the provisions of that act during the year 1916. That act came up for construction in the case of Fort Smith Dist. of Sebastian County v. Eberle, 125 Ark. 350. The court held that the local registrar was a State officer, and that his services could not be regarded a county purpose within the meaning of the Constitution, and that the act was invalid so far as it authorized the payment for the services of the local registrar out of the county treasury. That decision is conclusive of the case at bar. If the levying court, by subsequently making an appropriation therefor, and the collector by 'collecting the taxes for general county purposes pursuant to the appropriation could bind the county to make the payment for services which this court has held the county was not liable for, the practical effect would be to oust the county court of the original jurisdiction which is granted it by the Constitution. By virtue of our Constitution and laws, the county court is invested with the exclusive original jurisdiction to audit, settle and direct the payment of all demands against the county. Constitution of 1874, art. 7, § 28, and Chicot County v. Kruse, 47 Ark. 80.
As we have just seen, the claim of Doctor Poynor was not a debt against the county because at the time the services were performed he was a State officer, and the county was not liable for the payment of his services as a State officer. To hold otherwise would be to divest the county court of the jurisdiction granted it under art. 7, § 28, which provides that the county courts shall have ‘ ‘ exclusive original jurisdiction in all matters relating to county taxes, * * * disbursements of money for county purposes, and in every other case that may be necessary to the internal improvement and local concerns of the respective counties. ’ ’ As we have seen the claim of appellee is not a debt against Carroll County, and, under the provision of the Constitution just referred to, the county court would not be authorized to audit and allow a claim which was not authorized under the law.
It is true the Legislature of 1917 amended the general act above referred to so as to provide for the payment by the respective counties for the services of the local registrars. See Acts of 1917, Vol. 1, p. 799. That act, however, does not purport to be retroactive in its operation, and therefore has no application whatever to the present case.
It follows that the circuit court erred in holding that the county was liable for the services performed by Doctor Poynor as local registrar during the year 1916, and for that error the judgment must be reversed and the cause will be remanded for further proceedings according to law and not inconsistent with this opinion. | [
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Hart, J.,
(after stating the facts). It is the settled rule of this court that the finding’s of fact made by a chancellor will not be reversed on appeal unless they are against the preponderance of the evidence.
It is true that transactions between a husband and wife affecting the rights of creditors, especially where the husband is insolvent, are to be scrutinized with care in passing upon the question of good faith, and the burden is upon the wife to show her good faith. Bunch v. Crowe, 134 Ark. 242.
This court has also frequently decided that a wife who- allows her husband to use her property for a long time as his own land will not be allowed to claim it as against his creditors. Cowling v. Hill, 69 Ark. 350, and Goodrich v. Bagnell Timber Co., 105 Ark. 90.
In the case at bar it was satisfactorily established that the east part of the lot in question was paid for by Mrs. Dugger with her own means and for her own benefit. The same is true with regard to the purchase of the west part of the lot by the son. The record does not show that these deeds were executed for the purpose of giving J. E. Dugger a fictitious credit, or that they were withheld from record for that purpose or for the purpose of enhancing his assets and thus to enable him to contract debts which he could not pay. On the contrary, all the parties deny that the deeds were withheld from record and concealed in order to avoid impairing J. E. Dugger’s credit. There is nothing to show that the plaintiff or the other creditors of J. E. Dugger were induced to give credit to him on the, faith that he owned the storehouse or lot in question. The mere fact that the deeds were not recorded is not of itself sufficient evidence of such fraudulent purposes as to constitute fraud in law. Such act is of course a circumstance tending to impeach, the want of good faith of the parties. In testing the good faith of the transaction it is necessary to consider the particular situation of the parties and the intent as indicated by all of the facts and circumstances in the case as well as the direct testimony of the witnesses. These conveyances were executed, by J. E. Dugger to his wife and son the latter part of May, 1917, and the plaintiff brought suit against him on August 25, 1917. Dugger testified that he owed a part of this sum at the time he made the conveyances.
The evidence does not disclose that the plaintiff or any other creditor of J. E. Dugger, furnished him credit on the faith that he owned the lot in question and the house situated thereon, and the shortness of time that elapsed between the conveyances to his son and wife and the institution of a suit by the plaintiff on his indebtedness negatives the idea that the conveyances were in fraud of his creditors.
It follows that the decree will be affirmed. | [
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Humphreys, J.
Appellant instituted suit in the Chancery Court of Sebastian County, Fort Smith District, against appellee, the owner of a lot in Fort Smith, and Foster and Paget, contractors, to recover a balance of $268.26 and to enforce a material man’s lien against the lot, on account of material alleged to have been sold to, and used by, the contractors in the construction of a dwelling thereon.
The material averments in the complaint were that appellant owned the lot; that appellant’s predecessor in business, H. B. Boyer, sold Foster and Paget, contractors, the material for the construction of a dwelling thereon; that they owed a balance of $268.26. on the account; that he gave the required notice to appellee and filed a material man’s lien against the property within the time fixed by law; that appellee agreed in writing to pay the amount of the lien in consideration of an extension of time for the enforcement of the lien by suit. The prayer was for a personal judgment against the contractors and appellant, the declaration of a lien against the property and .an order of sale to satisfy same.
Appellee filed an answer, denying each material allegation in the complaint, and, in addition, alleged, in substance, that she had paid the contractors the contract price for the dwelling erected by them on said lot in the spring of 1917, except $137 which she paid to appellant after the lien was filed; that the lien was filed more than ninety days after the last item of material was furnished for the construction of the dwelling; that the written promise only bound her to pay any valid and enforceable lien against her property; that the amount for which the lien was claimed had been paid to appellant and improperly credited by him to the Trailor job, for whom the contractors were building a house at the same time they were constructing her dwelling.
The cause was submitted to the chancellor upon the pleadings, the statutory notice to appellee and the lien filed on October 22, 1917, pursuant thereto, the assignment of the lien by H. B. Boyer to appellant, the letter of date October 24, 1917, written by appellee to appellant’s attorney, the attorney’s reply thereto, and the evidence, which resulted in a decree in favor of appellant against O. B. Foster for $268.26, against appellee for $67.56 and a denial of the lien.
From the refusal of the court to adjudge the full amount of the claim against appellee and to fix and enforce a lien therefor against the property, appellant has prosecuted an appeal, and from the decree against appellee for $67.56, appellee has prosecuted a cross-appeal, and the cause is before this court for trial d& novo.
Appellant’s predecessor in business, H. B. Boyer, furnished O. B. Foster and his partner, Paget, the material used by them in constructing the residence for appellee on the lot in question. Appellee paid Foster the contract price except $137 retained by her to force the contractors to finish the house, which they never did. During the construction of the residence, the contractors were also building a house for..............................Traylor. According to a preponderance of the evidence a payment of $200 by O. B. Foster on appellee’s job was improperly credited to Traylor’s job, and an item for screen material, of date July 26, 1917, was improperly charged against appellee’s job. These findings of fact, after a careful consideration of the evidence, dispose of appellant’s contention that the findings by the chancellor in these particulars were contrary to the preponderance of the evidence. After notice to appellee of appellant’s intention to file a lien, she paid appellant the amount of $137 withheld by her to force a completion of the house. This payment, together with a deduction of $200 item paid by Boyer on appellee’s job and improperly credited to the Traylor job; and the item of $1.40 for screening improperly charged against appellee’s job, reduced appellant’s claim against appellee to $67.56, which formed the basis for the judgment rendered against her by the chancellor, from which she has prosecuted a cross-appeal. Eliminating the item improperly charged for screening, the last item of material furnished to the contractors by appellant for the construction of appellee’s house, was furnished July 10, 1917. The lien was filed October 22, 1917, more than ninety days after the last item was furnished and, in consequence of the failure to file it within the statutory period, was a void lien. This finding of fact also disposes of appellant’s contention that the chancellor’s finding that no lien existed against the property was contrary to the weight of the evidence.
Appellant contends that, notwithstanding the invalidity of the lien, appellee is bound to pay the debt in consideration of a forbearance by appellant to institute proceedings immediately to enforce the claim. It is suggested that if the claim be regarded as doubtful, or void and in good faith believed to be well founded, that a forbearance to prosecute it until December 1, 1917, was a sufficient consideration to support an agreement to pay it. A number of decisions are cited in support of that doctrine. Matthews v. Morris, 31 Ark. 222; Lay v. Brown, 106 Ark. 1; Brinkley Car Works & Mfg. Co. v. Cook, 110 Ark. 325. While the rule thus announced is sound, it does not reach the real point for determination in this case. The real point involved here is whether by the writing appellee bound herself to pay appellant’s claim. This must be determined by a proper interpretation of the letter written by appellee to appellant’s attorney and his reply thereto. The letters are as follows:
“Mr. Harry E. Daily,
City.
Dear Sir:
I write you in regard to lien filed by L. D. Mitchell, formerly known as Boyer Lumber Company, on my house, 2308 Tilles Avenue, for unpaid lumber bill. Please do not file suit but give me more time, say until December 1, 1917, and I will pay same.
Yours truly,
Ella Schulte,
2308 Tilles Ave.”
“Miss Ella Schulte,
2308 Tilles Avenue,
Port Smith, Arkansas.
Dear Miss Schulte:
We are in receipt of your letter of the 24th inst.. with respect to the L. D. Mitchell lien, in which you agree to pay same on December 1, 1917, and in reply thereto beg to state that this meets with the approval of our clients, and no action will be taken by us before that time.
Very truly yours,
Kimpel & Daily.”
Appellant’s contention is that the writing is broad enough to obligate appellee to pay the entire claim or indebtedness. We do not think the contention sound. The language of the letter written by appellee to appellant’s attorney indicates appellee’s intention to liquidate a valid and subsisting lien against her property, if given time. The promise was to pay the lien, not to pay any debt which the contractors owed appellant for material furnished for the construction of the house. That it was the lien to which appellee was addressing herself is more clearly evidenced by the reply of the attorney* which, in part, is as follows: “We are in receipt of your letter of the 24th inst. with respect to the L. D. Mitchell lien, in which you agree to pay same on December 1, 1917.” We are unable to construe the language of the letter .into an obligation to pay a void lien which did not imperil her property or to pay the debt of another which did not hazard her property. Under this interpretation of her obligation, it was improper to rem der the personal judgment against her for $67.56.
The decree on the direct appeal is therefore affirmed, but reversed and remanded on the cross-appeal with instructions to dismiss the bill against appellee for the want of equity. | [
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Smith, J.
Appellees filed a complaint asking the cancellation of a deed executed to appellant on April 3, 1918, by the State Land Commissioner. The complaint imputes no bad faith to the commissioner but alleges that under the circumstances the deed was a fraud upon their rights.
The deed was executed under the authority of act 282 of Acts 1917 (Acts 1917, page 1468), entitled “An act to provide for the sale and disposition of islands formed or which may form in navigable rivers or streams of the State which belong to the State of Arkansas, and for other purposes,” and the land sued for was conveyed to appellant by the State Land Commissioner as an island which had formed in "White River.
Section 5 of this act provides that all bona fide claimants of these islands shall have a preferential right of one year, after the passage of the act to apply for the survey and purchase of lands claimed by them, and that in case of conflict between applicants the question of preference shall be determined by the commissioner under such rules and regulations as he may prescribe not in conflict with the provisions of the act, and that the determination of the commissioner on such contest, in the, absence of fraud or collusion, shall be final. There was a prayer in the complaint that appellant’s deed be canceled to the end that the commissioner might conduct the hearing provided for by the act on the relative rights of the respective claimants to the commissioner’s deed.
The court granted the relief prayed by canceling appellant’s deed and referred the cause to the Land Commissioner for his action, and this appeal is from that decree.
It is contended by appellees that they own the land in controversy as an accretion, but that they applied for a deed under this act 2i82 to prevent a controversy arising over their title. There is a conflict in the testimony as to whether the land was an accretion, or an island, but it was agreed that appellees were the owners of the mainland adjacent to these parcels of land and that one of the appellees had paid the taxes on the land claimed by him for the years 1915, 1916 and 1917, by adding ten and one-half acres to the area of his surveyed land, and that the other appellees paid the taxes on the remainder thereof for 1918 in the year 1919.
Appellant had litigation with one of the appellees over the crop grown in 1917 and lost his suit, it being there successfully shown that the land was an accretion, and because of that fact it is now insisted that it is inconsistent for the appellees to attempt to buy the lands as an island belonging to the State.
At the time of the filing of the respective applications to purchase the land with the State Land Commissioner all the parties hereto had possession of some portion of the land. One of appellees had possession of the land which he desired to purchase through appellant’s father as a tenant, and the other appellees also had possession of a portion of the land by tenant; but appellant himself had- never been any one’s tenant, although he had no ■claim to the land except such as grew ont of his occupancy of it and his application to buy it.
At the trial in the court below there was offered in evidence certain correspondence between appellees and the Land Commissioner, who had been made a party,from which it appeared that appellees filed their application to purchase the land on February 15, 1918, and that that of appellant was filed on February 20, 1918. The commissioner did not attempt to pass on these conflicting applications. Indeed, his letter stated that he did not know there was a conflict, as he assumed applications were being made to purchase three separate islands. The act provided that the commissioner should appoint a surveyor to make field notes and a plat conforming to the rules and regulations as laid down by the Manual of Surveying for the Survey of Public Lands used in the General Land Office of the United States, and the commissioner appointed the same surveyor to make the survey for each of the applicants. Appellant proved more diligent than the other applicants and got in touch with the surveyor named, and upon the survey then made obtained the deed here sought to be canceled. Objection is made to the competency of these letters. 'But it appears that an attorney for appellees testified' as a witness, and stated that, acting for appellees, he had, within the year, filed with the Land Commissioner the application of appellees to purchase the islands. So that, if the Land Commissioner’s testimony is disregarded as incompetent, it still appears from competent testimony that appellees applied to purchase the land within a year from the passage of the act, and that fact is undisputed.
It is not insisted that a finding be made that there was fraud or collusion on the part of the commissioner in issuing the deed; and we think the testimony does not show that such was the case. The finding of the commissioner, which is made final in the absence of fraud or collusion by the provisions of the act, relates to a contest between conflicting applicants to buy the same land; and there has been no such decision between these appli cants. Indeed, the decree of the court below provides for this hearing before the commissioner, and if he should decide that appellees are boma fide claimants to the land, as the record before us appears to show, it will then be his duty to issue his deed to appellees for the reason that the act gives such claimants a preferential right to buy for a period of one year after the passage of the act. And this is true, notwithstanding the fact that the first survey made was based upon appellant’s application, because appellees — if the Land Commissioner find them to be bona fide claimants — have the preferential right to buy the land for a period of one year.
We think there is no inconsistency in appellees’ position which prevents their buying the land. It is true that in prior litigation with appellant they prevailed in a lawsuit over a crop on the theory that they owned the land in controversy here as an accretion. But it is not undisputed that it is an accretion, and appellees had the right to perfect their title to the land by buying it as an island, it being explained by them that this course was pursued to prevent some one else buying the land as an island and thereby making it unnecessary to litigate the question whether the land was an accretion with some one, who held a deed from the State. The question whether new land was formed as an island or as an accretion to the main shore is one of fact, and is quite a common one, and we think it was the legislative purpose to give riparian owners, situated like appellees were, the preferential right to buy for the period of a year.
It is finally insisted that the act giving appellees the preferential right has been repealed by act 344 of the General Acts of 1919, page 256. It is unnecessary here to decide what effect the passage of the act of 1919 had upon the act of 1917, as it is provided in section 1 of the act of 1919, “That nothing in this bill shall affect the sale of any State lands -where written application was filed with the Commissioner of State Lands prior to February 1,1919. ’ ’ Appellees ’ application was made prior to Feb ruary 1, 1919, and the Land Commissioner’s deed would, no doubt, have been issued thereon but for the commissioner’s mistake of fact in assuming that the parties desired to purchase three different islands.
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Smith, J.
J. B. Deese brought this suit, and for his cause of action alleged that he had employed H. B. Solmson as his agent to sell, his farm, and that the contract of agency authorized a sale for $50,000, with a commission of a thousand dollars, if a sale was made at that price, together with any excess over $49,000 net to Deese, but that his said agent had made a sale at $62,500 and had only accounted to him for $45,000, and judgment was prayed for $16,500.
Solmson filed an answer denying the allegations of the complaint, and alleged the facts to be that, acting solely for himself, he took a contract from Deese for a period of thirty days for the sale of the farm together with certain personal property for the net sum of $49,000, Solmson to receive all in excess of that sum as compen sation. That, while said contract was in the form of an agency contract, Solmson in fact intended to obtain an option for the purchase of said property, and in pursuance of this purpose he, in a few days after obtaining said contract, entered into negotiations with Deese to purchase said property for himself, and on March 29, 1919, Deese and his wife conveyed said property to him for the consideration of $46,950.
It very clearly appears that Solmson is a man of much more experience in the transaction of important business than is Deese; in fact, Solmson is a man of largé and successful experience, yet the original contract entered into between the parties is very clearly an agency contract, a form being used in its preparation which was in common use by real estate agents in Little Rock in taking contracts to sell land. Solmson admits that he knows, and knew, the difference between an agency contract and a contract with an option to buy, and that he knew the contract he had taken was an agency, and not an option, contract; but he says it was his purpose to taire an option contract, and that this purpose was effectuated by the second contract, which he made with Deese. The first contract was executed March 19, 1919, and the second one on March 24, 1919.
This second contract is in form a contract of sale and recites a consideration of $49,000, of which sum $5,000 is cash in hand paid, and Solmson says this second contract expresses the agreement he had with Deese. This is denied by Deese. In fact, according to Deese’s testimony, and that of his son, who was present when the contract was signed by Deese and wife, the contract which they did sign was written on a single page, while the writing produced appears on three different pages, the insistence being that the writing is now a contract of sale when it was'not so at the time of its execution. We do not review the testimony on this disputed point and decide that dispute, as we find it unnecessary to do so. On March 29 Deese and his wife executed and delivered to Solmson a deed to the land, and a separate bill of sale for the personal property, for the consideration recited in the contract of sale. Deese testified that when the deed and bill of sale had been delivered Solmson confided to him that he had “unloaded” this property on the State Board of Control, but did not tell him the terms of the sale, and he was not advised as to its terms until a few days before the institution of this suit, and that as soon as he was advised he immediately consulted his attorney and brought this suit, it being filed April 25, 1919.
The General Assembly, at its 1919 session, passed an act, which was approved February 13, 1919, directing the Board of Control of the State Charitable Institutions to purchase and operate a farm within fifteen miles of the city of Little Rock, and pursuant thereto the members of the board undertook to locate a farm containing something like 500 acres, and that fact appears to have been generally known to the real estate men of the city, although, the testimony does not show when Deese was first advised of the board’s purpose. The board was unable to find a place of that size and decided to buy a smaller place, and, being advised that Solmson had lately become the owner of the land in controversy, they sent for him and opened the negotiations which terminated in its purchase. The board members testified that they dealt with Solmson as the owner, and knew no other party in the transaction, and that on April 2 he executed a deed to them for the land, which, after describing the lands, contained the further statement, “all of the foregoing lands being in township 1 north, range 11 west, and containing three hundred four and twenty-six hundredths (304.26) acres, more or less, also all accretions thereto, whatever they may be or become.” '
In addition to this recital, the board members testified that Solmson represented to them that the place contained 304.26 acres of tillable land and a sandbar of fifteen to twenty acres, and this Solmson admits doing. After obtaining the deed the board caused a survey of the land to be made, which disclosed the fact to be that there were only 254.12 acres of tillable land and fourteen acres in the sandbar, which is practically valueless. The correctness of this survey is not disputed. Thereupon the Board of Control intervened in this litigation and asked a proportionate abatement of the purchase money.
It is insisted on behalf of Solmson that, even though his original contract with Deese created an agency, his second contract changed the relationship to that of vendor and vendee, and the correctness of this contention presents the real question in the case. Upon this issue we summarize our understanding of the facts as follows: Solmson had an agency contract, which gave him as his commission the excess over $49,000, but at the time of making the second contract he represented to Deese that his “party” would only pay $45,000, yet the cash payment recited, together with the deferred payments, aggregated $49,000. A cash payment of $5,000 was recited, of which only a thousand dollars was in fact paid. The $4,000 additional cash consideration was paid by Solmson delivering to Deese his check on the American National Bank for $4,000, payable to Deese, which Deese endorsed and returned to Solmson, who later passed the check through the bank, having the same marked paid by it. Solmson did not tell Deese he expected to sell the property to the State. Upon the contrary, he asserts the fact to be that he did not open negotiations with the board until after he had completed his purchase. A witness named Thomason gave testimony, however, to the effect that he had a conversation with Spencer, the partner of Solmson, in which Spencer stated that Solmson had a purchaser for a farm such as the Board of Control desired to buy, the substance of that testimony being that Solmson had the customer if he could get the farm. This conversation is said to have occurred at a time when, if the facts there stated were true, there was a gross breach of good faith to Deese on Solmson’s part. Spencer denied having this conversation, and the chancellor made no finding of fact on that issue, stating in the opinion, which he delivered in deciding the case, that he considered it unnecessary to do so,
Deese testified that the second contract,was executed on a Sunday morning and dated a day later; that Solmson stated $45,000 was the best price he could get out of his party, but that the purchaser would need a manager, and that he would endeavor to secure that position for him, and that, without being told that Solmson was assuming the attitude of purchaser, and -without reading the contract, he and his wife signed it under the assumption that it was a writing authoizing Solmson to make a sale at -the price which Solmson had then and there said was the best one obtainable.
As has been said, the testimony is irreconcilably in conflict on this question of fact; but Solmson admits that he never told Deese about the details of his trade with the Board of Control, and did not do so even when the deed was executed and delivered, as he stated that he thought it was none of Deese’s business.
In reviewing this testimony and in pronouncing judgment thereon the court below found the facts as follows:
“If Solmson entered into a contract of agency, then there is nothing in the record which will show that that contract was changed until the sale of the land. If he entered into a contract of purchase, that contract continued until the final sale of the land to him by Deese. There is no doubt but that at the time the contract was finally consummated Deese understood that he was making a sale of the land to Solmson, or, rather, in Solmson’s name. * * * But I have reached the conclusion that at the time they entered into the contract it was a contract of agency. ’ ’
In holding that it was unnecessary to pass upon the question of veracity between Thomason and Spencer the court made this declaration of law upon the finding of fact above stated:
“If it is true that when they (Solmson and Deese) commenced their negotiations they created a contract of agency, and not one of sale, then Solmson by no act of his which was not fully explained to Deese could have changed that contract. When he found a purchaser for the land it was his duty to make correct representation to Deese, as to the price he was to receive for it. If he did not do that, and sold it for more than he represented, then he is responsible to Deese for the sum at which he did sell it.”
We think the finding of fact is not clearly against the preponderance of the evidence, and the law as declared conforms to Professor Pomeroy’s statement of the agent’s duty to his principal (Pomeroy’s Equity Jurisprudence (4 Ed.), § 959), and both are, therefore, approved. See also Thweatt v. Freeman, 73 Ark. 575.
It is further insisted in Solmson’s behalf that Deese, for the full consideration of the sum of $250, ratified the sale to Solmson. The court below, however, made an express finding against that contention; and we think the court was warranted in doing so. At the time this check was given a dispute had arisen between Solmson and Deese over the current accounts of the tenants on the place due to Deese and which he estimated at $500. At the time this payment was made Solmson called the board members, who were then present for the purpose of checking in and receiving the personal property, to witness the fact that he was paying Deese $250 in full settlement of all issues between them growing out of the sale of the farm. But it is undisputed that even then Deese did not know the terms upon which the sale had been made; consequently Deese did not ratify a transaction of which he was ignorant.
The total consideration paid and agreed to be paid by the ■ State was $62,235. Deducting the value of the personal property the court found that the purchase price of the land, computed upon the correct acreage, was $147.90 per acre, and ordered an abatement of the purchase price which remained unpaid by the State for the shortage in acreage at the price per acre paid for the land. It is insisted that if the State is given credit for this deficiency, Solmson should also be given credit for it on his note to Deese. But we do not agree with that contention. Deese made no misrepresentation about the acreage, and the price he was to receive was not dependent on the acreage. The court below took as the basis of the settlement between Solmson and Deese the original agency contract under which Deese was to have $49,000, and Solmson the excess, and this without regard to acreage, and the court deducted in the settlement between Deese and Solmson the entire shortage from Solmson’s commission. This was properly done, as the sum remaining after that deduction had been made exceeded the contract price of sale ($49,000) upon which Solmson’s commission depended.
The decree took care of certain other items which we need not discuss, as Deese was given judgment for the difference between the sum paid him and $49,000, not including the $250 item above mentioned.
The net result of this decree is that the original agency contract is made the basis of the settlement between the parties with the additional allowance of -the $250 paid in settlement of the controversy over the accounts of the tenants.
It is finally insisted that too great a deduction was made on account of the shortage in acreage. 'But we think otherwise. Solmson does not deny his representa-' tion in regard to the acreage, and it is undisputed that there are sixty-six acres less than he represented. It is not charged that Solmson knew this representation was false, but it is not essential that that fact be shown. This was a material matter, and he was bound by his representations, however innocently made. Neely v. Rembert, 71 Ark. 91. It is true Solmson’s deed described the land as being 304.26 acres, “more or less,” and as was said in the case of Harrell v.. Hill, 19 Ark. 103, these words, “more or less,” are descriptive of the premises to be conveyed, rather than a covenant as to quantity; yet it was there also said that when there is a very great difference between the actual and the estimated quantity of acres of land sold in gross relief' would be granted on the ground of gross mistake. Here, in a sale of 304.26 acres, a shortage of sixty-six acres exists, a proportionate part of the whole so large as to constitute a gross mistake. See also Neely v. Rembert, supra; Drake v. Eubanks, 61 Ark. 120; Haynes v. Harper, 25 Ark. 541.
It is finally argued that the acreage in the sandbar should be taken into account in determining the deduction to be made. But we do not think so, as it appears that the sandbar was not considered in making the sale except as a thing conveyed in addition to the property for which value was paid.
No error appearing, the decree is affirmed. | [
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YELL, Judge.
This was an action of as-sumpsit upon promises by [Morris] Mjsiy •against [Massack H.] Janes, in the Lafayette circuit court. At the October term of that court, 1832, the plaintiff recovered a judgment against Janes for the sum of eighty-four ■dollars, besides costs. Upon this judgment, execution issued, and a supersedeas was granted, and on the 4th November, 1833, a writ of error was sued out returnable to the January term of the superior court, and on 'the 15th of July is indorsed filed by the clerk.
The only question in the cause which the court is now. disposed to consider is, did the writ of error abate, by one term of the superior court intervening between the issuing of the writ of error and the filing of the record. This court is clearly of opinion that the cause should have been returned to the January term of the superior court,. 1834; that it is in the nature of an original writ, and must be returned to the next term after it hás been issued. The . failure to return to. the proper term cannot be cured by an amendment, there being no clerical error or error in fact to amend, as the writ' bears date when 'issued, and when filed in the office., Accprd-ing to the decision of the supreme court of the United States in the case of Hamilton v. Moore, 1 Pet Cond. 168, 3 Dall. [3 U. S.] 371, the plaintiff in .the writ of error must be non-prossed. Ordered accordingly. | [
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DAVID M. GLOVER, Judge
| Jennifer Henderson and Shane Johnston are the parents of D.J., who was born in 2004. Jennifer appeals from the trial court’s December 15, 2016 order, contending 1) the trial court clearly erred in limiting retroactive child support to November 3, 2010, when Shane filed his petition for paternity rather than extending it back to 2008, when Shane stopped providing support for D.J., and 2) the trial court clearly erred in abating Shane’s entire child support obligation for the two-year period when Jennifer took D.J. to Great Britain. We agree and reverse and remand for further proceedings, consistent with this opinion so the trial- court can recalculate the total amount of child support owed to add the appropriate amounts for 1) 'the period between 2008 (when Shane stopped providing support) and November 3; 2010, and 2) the period September 2012 through the end of 2014, which should mot have been abated.
|aD.J. was born in 2004. Although never married, Jénnifer and Shane lived together on and off until 2006 or ,2007. It is undisputed that from D.J.’s birth in 2004 until the parties permanently separated, support for D.J. was shared by the. parties and that thereafter Shane, continued to provide support for D.J. until sometime in 2008. Jennifer makes no claims for, child-support arrearages for that period of time.
On November 3, 20.10, Shane petitioned the trial court to establish that he is D.J.’s father. On December 22, 2011, the parties entered an agreed order, which,. among other things,- established Shane’s paternity; awarded primary custody of D.J. to Jennifer; set. out visitation, including transportation' and exchange points for-Jennifer’s anticipated move out of state; provided for telephone communications; set Shane’s prospective child-support obligation at $90/week (based on his unemployment income) and ordered him to notify Jennifer once he became employed so his child-support obligation could be recalculated; and reserved the issues of recal-cplating Shane’s child-support obligation once he secured employment and determining his child-support arrearages, because he had not provided the necessary financial information to do so at the time of the agreed order.
When the December 22, 2011 agreed order was entered, Jennifer had married someone else. Her husband was. in the military and subject to relocation, so the order identified out-of-state-visitation. As it turned out, Jennifer’s husband was reassigned out of country and relocated to Great Britain, where they lived from September 2012 through the end of 2014. Shane alleged in his contempt motion that Jennifer relocated to Great Britain without telling him and without giving him any contact information. In the spring of 2015, Jennifer and D.J. returned to the United States. It is undisputed that - since that time Shane |3has received his visitation with D.J. As part of the instant proceedings he asked for an abatement of his child-support obligation for the period Jennifer had D.J. in Great Britain.
On May 16, -2014 (amended November 14, 2014), Shane filed a motion for contempt against Jennifer, On June 2, 2014, Jennifer filed a counter-motion for contempt against Shane, In her counter-motion, Jennifer also asked the trial court to calculate Shane’s retroactive child support and arrearages and to recalculate his child-support obligation in light of him getting a job, which had been contemplated by the December 22,' 2011 agreed order. The matter was heard on November 10, 2016. His contempt motion was withdrawn, and her contempt motion was denied. Thus, they are not at issue.
The trial court entered its order from the November 10 hearing on December 15, 2016. The court awarded Jennifer retroactive child support to November 3, 2010, which was the date Shane petitioned the court to establish 'his paternity; recalculated Shane’s child-support obligation to $303 biweekly, to begin November 1, 2016 (based on his current net monthly' income of $2,067, which the court stated was not a deviation from the family-support chart); abated Shane’s entire child-support obligation for the period of September 2012 through the end of 2014 (based on Jenni fer’s move to Great Britain without notice to Shane and her failure to allow contact with Shane during that period); and concluded that Shane’s total child-support obligation was $12,580, after giving him credit for the amounts he had paid.
During the November 10, 2016 hearing, Shane provided his W-2 forms and testified about his income and the support he had provided for D.J. He acknowledged that as of October 28,' 2016, he was behind at least $10,065. He testified about the events during the |4time D.J. was in Great Britain and how he was deprived of contact with D.J., but that from the time D.J. returned from Great Britain until the present, he had no complaints about visitation.
For her first point of appeal, Jennifer contends that the trial court clearly erred in failing-to award her child-support arrearages for the period between 2008, when Shane stopped providing voluntary support for D.J., to November 3, 2010, when Shane filed his petition to establish paternity. We agree.
As part of its calculation of retroactive child support and arrearages, the trial court started the applicable time period with Shane’s November 3, 2010 petition to establish paternity. D.J. was born in 2004, but Jennifer did not seek child support before 2008 (when Shane stopped providing voluntary support for the child). We find error in the November 3, 2010-start-ing point chosen by the trial court. Our Supreme court explained in Akins v. Mofield, 355 Ark. 215, 132 S.W.3d 760 (2003), that a parent has .a legal duty to support his or her minor children, regardless of the existence of a support order or the other parent’s request for support, and child support is an obligation owed to the child, not the parent. Administrative Order No.10 and its predecessor child-support guidelines set out the presumptively correct amount of child support for retroactive child support for those years in which the guidelines were in place, beginning February 5, 1990. Id. Our court has repeatedly upheld a trial court’s order awarding retroactive child support from the date of the child’s birth to the date of judgment. Walden v. Jackson, 2016 Ark. App. 573, 506 S.W.3d 904; see also Ark. Code Ann. § 9-10-111(a) (Repl. 2015), (cited in Walden.)
UHere, Jennifer did not seek child support before the time in 2008 when Shane stopped voluntarily providing support for D.J. That was because they had shared the child’s expenses while living together, and after they separated, Shane had continued to contribute to D.J.’s support until sometime in 2008. In addition, Shane never disputed his paternity, even though he did not. seek to have it established until the November 3, 2010 petition. Accordingly, the trial court erred by not also.including the applicable period prior to November 3, 2010, in calculating retroactive child support. .
For her remaining point of appeal, Jennifer contends the trial court also erred in abating Shane’s child-support obligation for the period she whs living with D.J. in Great Britain (September 2012 through the end of 2014) instead of including that périod of time in the recalculation of his child-support obligation since he became employed with the railroad on October 29, 2012. We agree.
The December 22, 2011 agreed order was entered at a tirne Sharie whs unemployed. He was instructed to inform Jennifer when he secured employment so that his child-support obligation could be recalculated using his employment income amount rather than his unemployment income amount. Shane got a job on October 29, 2012, but did not inform Jennifer. He testified about his income for the years 2013, 2014, 2015, and for 2016 through October 15, 2016. He acknowledged the need to recalculate his support obligation in light of his employment but asked the trial court to abate his support obligation for the time D. J. was in Great Britain. The trial court granted that request. It was error to do so.
Our court has long held that child-support obligations and visitation are completely separate issues. See, e.g., Walden, supra; Newton v. Office of Child Support Enft, 2013 Ark. App. 53, 2013 WL 361827; Lyons v. McInvale, 98 Ark. App. 433, 256 S.W.3d 512 (2007). As explained in these cases, when the custodial spouse interferes with visitation, the remedy is to seek court enforcement of visitation—not to withhold child support. Child support is an obligation owed to the child independent of the noncustodial parent’s relationship or visitation with the child. Walden, supra. A parent’s child-support obligation does not depend on the parent’s relationship or visitation with the child. Id.
We find error in the trial court’s conclusion that child support was to be calculated from the November 3, 2010 filing date of Shane’s petition to establish paternity, and we also find error in the abatement of Shane’s child-support obligation for the period D.J. was in Great Britain (September 2012 through the end of 2014). Thus, we reverse and remand this matter to the trial court for further proceedings consistent with this opinion.
Reversed and remanded.
Gladwin and Hixson, JJ., agree. | [
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Lacy, Judge,
delivered the opinion of the Court:
This is an application to the Supreme Court to issue a writ of injunction. At a previous day of the present term, the complainant Isaac N. Jones exhibited his bill in chancery to be relieved of a judgment at law obtained against him by James W. Irwin, endorsee of James Giles, in the Lafayette Circuit Court, and he claimed to be entitled to the benefit of a writ of injunction, to stay the proceedings, by virtue of an act of the General Assembly, approved March 5, 1838, which declares that the Supreme Court, or any Judge thereof in vacation, shall have power to grant injunctions to stay waste and proceedings at law throughout the State. Rev. Stat. p. 452. It is admitted that this act confers upon the Supreme Court the power to grant writs of injunction in a case properly made out; provided, it be constitutional. And the question no whs, as to the constitutionality of the act under consideration. On one hand it is contended it is constitutional. On the other it is asserted to be a clear and palpable violation of the Constitution. Its constitutionality, or its unconstitutionality, we will now proceed to discuss and determine. Before, however, we do so, it is proper to determine the nature and character of a writ of injunction, and the objects and purposes to which it is generally applied. An injunction is a judicial writ, issued out of a court of chancery, for the purpose of staying waste or oppressive and unjust judgments at law. The party applying for it must show some equitable circumstance which will entitle him to the benefit of the writ: and that consists generally, if not universally, in the fact that a court of law has no jurisdiction of the case; or that if it has jurisdiction, it cannot administer full, certain and adequate relief. When these facts are established to the satisfaction of the Chancellor, he is empowered with authority, as the party is remediless at law, to make' an order to stay the judgment and proceedings therein had, so that a a court of equity can take cognizance of the case, and decree equitable and complete redress in the premises.
The Constitution, in establishing and organizing the Supreme Court, declares “ that it shall have appellate jurisdiction only, coextensive with the State, and. under such restrictions and regulations as may from time to time be prescribed by law. It shall have a general supervising control over all inferior courts of law and equity. It shall have power to issue writs of error and supersedeas, certiorari and habeas corpus, mandamus and quo warranto, and other remedial writs, and to hear and determine the same. Art. 4, sec. 2. Const. Rev. Stat. p. 33. Here, then, the powers of the Supreme Court are given, limited, and defined; and to the exercise of the powers thus granted and specified, they are expressly confined by the Constitution. They can neither enlarge or diminish their constitutional power or jurisdiction by a fair and just construction of the grant expressly or impliedly. They cannot refuse to take cognizance of the particular class of cases assigned to them by the Constitution, nor can they assume any jurisdiction incompatible with its paramount authority and will. The obligation to exercise a jurisdiction that is conferred, and to refrain from exercising it where it is denied, is of equal obligatory force. By an analysis of the powers conferred upon the Supreme Court, as prescribed by the Constitution, it will be readily perceived that all its constitutional jurisdiction, as derivative from the grant of its creation, and nearly all of its powers, are strictly of an appellate character. The Convention first designed to make it what in truth it is — a Court of Error and of Appeals, whose practice might be regulated and prescribed by Legislative enactments; but whose constitutional existence, organization, and jurisdiction, could in no essential point or manner be changed or altered by the Legislature. This proposition seems to our minds to be . clearly deducible, not only from the particular clause of the Constitution we are now considering, but from the general frame and nature of the government itself, as organized and established by the Convention. Then, it clearly follows, from these plain and obvious principles, that the Supreme Court possesses no constitutional 'power and authority to issue any other writs than those expressly enumerated and embraced in the Constitution, or such as are necessarily,implied and contained in that enumeration. It certainly cannot be pretended that the writ of injunction is included in that enumeration, for the express terms and words of the grant, conclusively negative any such idea. Is it then impliedly embraced in the clause in question ? This clause has been fully examined, and its meaning ascertained and declared, in the case of the State vs. Chester Ashley and others, on a motion for information in the nature of a quo warranto. The Chief Justice, in delivering the opinion in that case, holds the following explicit and emphatic language; “ We will now examine what jurisdiction or power this court can derive from the terms ‘other remedial writs,’ as used in the Constitution. The terms here used are general, and their application is left indefinite. Did the Constitution intend thereby to authorize the court to issue every writ of a remedial nature known to the laws, and to hear and determine the same? If they did, their declaration that the court shall have appellate jurisdiction only, “ except in cases otherwise directed by this Constitution,” as well as their special grant of power to issue certain enumerated writs, each of which is of a remedial nature, is wholly unmeaning, if not positively absurd. And, besides that, it would produce a direct conflict of authority between the several judicial tribunals, and involve them in the utmost confusion. It would destroy every vestige of harmony in the whole system, and virtually repeal every other grant of judicial power made by the Constitution. It would draw to this fbrum original jurisdiction co-extensive with the State of every civil controversy; for it must be observed that in respect to the sum or amount involved, there is no restriction whatever imposed by the Constitution in any cause in which the court can exercise original jurisdiction : therefore, if it can, under any authority derived from this general grant, take original jurisdiction of any case, it may of all cases falling within the same general class. These consequences are clearly not within the objects and intention of the Convention, but in opposition to both. And it is a rule founded on the dictates of common sense, and admitted by all jurists, that in construing a Constitution or fundamental law of Government, no construction of a given power is to be allowed, which plainly defeats or impairs its avowed objects. If, therefore, the wordr. are fairly susceptible of two interpretations according to their common sense and use, one of which would defeat one, or all, of the objects for which it was obviously given, and the other of which would preserve and promote all; the former interpretation ought to be rejected, and the latter to be held the true interpretation.
The terms, “ other remedial writs,” as before remarked, are indefinite in themselves, and may embrace a greater -or less number in proportion to the object and purposes to which they are intended to be applied; and they might be applied to almost every purpose, with the single qualification that it shall be in a proceeding of a remedial nature, as contra-distinguished from proceedings of a criminal or penal character; which, by the language used, are expressly included. The terms used must, therefore, receive such a construction as will promote, rather than defeat, the objects of the grant, or the general objects of the Convention. The context, and every other part of the whole instrument, which relates to the organization of the judiciary, and the distribution of the judicial power must be looked to in determining the power given by the general indefinite grant. These have all been carefully and critically examined by the court, and from them it appears satisfactorily, that it was the intention of the framers of the Constitution to limit and restrict the Supreme Court in the exercise of original jurisdiction to such cases as the writs therein specially enumerated would apply, and that the power to issue other remedial writs, intended to embrace only such other writs as might be properly used in the exercise of appellate powers, or the power of control over inferior or other courts, expressly granted by the Constitution. And such, ill every point of view in which they can be considered, is, in the opinion of this court, the only legitimate, true, consistent, sensible, and practicable interpretation which they can receive.” If the principle here laid down be true, and that it is we have not the least doubt, then the power to issue a writ of injunction to stay proceedings- at lawris certainly not conferred upon the Supreme 'Court .by the<ferms. “other remedial writs,” used in the Constitution.- We-:have certainly-no power to issue any writ that we cannot, after' its emanation/ try and determine, for the words of the Constitution; aré<explicit ándsperemptory upon the point. ■ After the: enumeration of -the' writs -prescribed by the instrument, the Constitution declares “ that the Supreme Court shall have power to hear and determine the same.” We cannot issue any writ without having jurisdiction to try the same; for, if we could, then we would be at liberty wholly and totally to disregard the latter part of the section, and consider it a mere nullity. This we have no right to do, without violating the first and primary rules of all just and fair interpretation. The whole clause, or section, must be taken together and made to stand, if they are not irreconcilably opposed to each other. This is a maxim of the common law in the construction of all legal instruments. Suppose, for example, we should issue the writ now applied for, could we then take cognizance of the cause, and try the matter in dispute between the parties. If so, the Supreme Court can draw to themselves all original jurisdiction in cases where injunctions would lie, and thus, by this simple and easy process, they would be enabled to oust the Circuit Courts of all original chancery jurisdiction, which is expressly given to it by the Constitution, until otherwise prescribed by law. This, it is evident, would be a clear and palpable violation of the Constitution, reaching and abrogating the letter and spirit of the instrument, and its general objects and designs. Let us see now whether the power to issue the writ now applied for, is impliedly included in the terms “ the Supreme Court shall have a general and superintending control over all inferior and other courts of law and equity.” What, then, is the true construction to be put upon these terms? The object of inserting them is obvious and manifest. It was to prevent a co-existent conñict of jurisdiction among the several distinct judicial tribunals which might, otherwise, arise and endanger the entire plan or form of the government. The Convention clothed the Supreme Court with all the necessary power that was requisite to combine the subordinate parts, in order to enable them to maintain a concert of co-operation, and a harmony of action, throughout the entire judicial system.
' This principle they deemed highly important, and every way essential for the maintenance of constitutional liberty and the due administration of public justice. Hence, the Convention gave them, by express grant, a supervising control over all inferior courts of law. and equity.; As the court of error and appeals.possesses,the attribute ,of supremacy in the system, of course, it must, and does have, power to govern, and to enforce its own authority and decrees. If the writs enumerated in the Constitution are not sufficient for that purpose, it may form any new one to cause its mandates to be respected and obeyed, and when it has once prescribed the rule of action on any giyen question, the rule itself being sovereign and supreme, must be implicitly followed and obeyed by all the inferior judicial tribunals. To disobey or question its authority, would be to commit a clear and palpable violation of constitutional duty. Before, however, the Supreme Court can lay down any governing rule of action for the inferior and other courts of law and equity, they must have either acted on the subject, or have positively refused to act. They must first have done some unlawful, illegal act, or they must have omitted, cither rightly or wrongfully, to have acted at all. The Supreme Court cannot act in advance of the action of the inferior tribunals, for, if it could, it might assume, by indirection, a constitutional' jurisdiction not warranted by the instrument, but expressly forbidden by its will. Whenever the inferior courts have first acted, then their action, if erroneous, is liable to be revised and corrected by the Supreme Court. If these positions be true, then the Supreme Court can derive no authority, by implication, to issue writs of injunction, from the terms “ they shall have a general superintending control over all inferior and other courts of ■law and equity,” as used in the Constitution.
This view of the subject is strengthened and fully sustained by the sixth section of the seventh article of the instrument, which declares, K until the Genera] Assembly shall deem it expedient to establish courts of chancery, the Circuit Courts shall have jurisdiction in matters of equity, subject to an appeal to the Supreme Court, in such manner, as may be prescribed by law.” The Legislature has not thought proper, as yet, to establish courts of chancery; and, of course, the Circuit Courts still retain primary jurisdiction in matters of equity, subject to an appeal. It surely cannot be denied, that issuing a writ of injunction is a matter in equity or chancery proceeding; then, if it is such a proceeding, it belongs by constitutional grant, in the first instance, and primarily, to the Circuit Courts and, consequently, the Supreme Court cannot assume or exercise any portion of the constitutional jurisdiction assigned to those tribunals, without a clear and manifest violation of the instrument. These principles we regard as fundamental, for they lie at the very foundation of the whole judicial system, and they cannot be departed from without putting in imminent hazard our entire plan or form of government. Considerations like these have induced this court to be extremely cautious in assuming ■original jurisdiction'in doubtful cases, or in such as were not expressly or clearly included in the grant of the Constitution. If the principles we have laid down be correet, then it necessarily follows, that the act of the Legislature, giving to the Supreme Court power to grant injunctions to stay waste and proceedings at law, is a clear and palpable violation of the Constitution, and therefore null and void. The Constitution of our State is the supreme paramount law, unless it be repugnant to the Constitution of the United States; and, therefore, any legislative acts or provisions inconsistent with its authority, and irreconcilable with its will, must be taken and held for nought. This being the case, the application for the writ must, therefore, be dismissed ■without prejudice or costs. | [
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Lacy, J.,
delivered the opinion of the Court:
It is as much a principle of natural justice, as of legal right, that no one can be made a party to any judicial proceeding, without he has some notice thereof, and an opportunity offered him of defending his interest; and it is equally clear that he cannot be bound by any judicial process, judgment, or decree, to which he has not been legally constituted a party on the record. The summons in the case before us, issued from the Justice’s Court, on the first of June, A. D. 1838, and was made returnable on the 16th day thereof. It was properly executed on the 9th day of June-, A. D. 1838, but the record wholly fails to show that the defendant appeared on that day to-the writ, the 16th day of June, or that the cause was continued-by consent or application of the parties. On the 17th day of June,judgment was entered up by default against the defendant, Israel Woolford, by-the Justice’s Court. It is most manifest that this judgment is illegal and void, for it was entered up on a day not authorized by the summons, and inconsistent with its mandate, and consequently, on a day the defendant was not bound to appear or be in court. The record does not show that he appeared agreeably to the summons outlie 16th day of June, and as it is silent on that point, no legal inference can be drawn in favor of such fact, or that he waived his right-to the notice, and voluntarily came in and defended the suit. Judgment was entered against him by default, but as he was never lawfully notified to appear on the day, or at the time it was given, of course he could not be guilty of any legal default; and, therefore, the judgment before the Justice’s Court, was entirely insufficient and void. It is clearly evident from an inspection of the record, that no appeal was ever prayed or taken either by the defendant or plaintiff in the action, from the judgment of the Justice’s Court. The first part of the entry stated that the plaintiff prayed an appeal, and offered to give special bail, but it wholly fails to show that the court ever entered an order allowing such appeal, or that he ever entered into the recognizance required by law. He has done no single act, required by the Statute regulating the practice in such cases, and consequently as the court never granted him an appeal, it cannot be pretended, that upon his part, there was a valid appeal taken in the case. His mere prayer for an appeal, and offering to- give special bail, can in no possible point of view, be considered as constituting a valid appeal. There must be an action of the court on the subject, as well as of the party, and a compliance with the necessary requisites of the Statute to-constitute a valid appeal.
We will now see whether the defendant ever prayed or took an appeal from the judgment of the Justice’s Court. That he did not is perfectly evident. The record does not even state that he prayed an appeal, much less that he took one. The latter part of the entry states, that “ the said McKnight came personally before the Justice, and acknowledged himself jointly bound with the above named defendant, to pay the costs and condemnation of the Circuit Court. Does this constitute a valid appeal on the part of the defendant, Woolford ? Most assuredly it does not. In the present instance the defendant neither prayed or took an appeal, nor did he enter into a valid recognizance before the Justice of the Peace, agreeably to the provisions of the Statute, in such cases made and provided. . The court neither granted or allowed him the benefit of an appeal, nor did the defendant do any act whatever, amounting to an appeal; as the record unquestionably proves. The supposed recognizance in this case is wholly void and nugatory in every respect. It contains no valid condition, it was not signed by the parties, and it is taken in a case where there was no appeal either prayed or granted. It was made payable to no one, nor did Joseph W. McKnight ever agree to become bound as the security of Israel Woolford in any recognizance. The act regulating appeals from the Justices of the Peace to the Circuit Court, declares “ that if the defendant appeals, he with one or more approved securities, shall enter into a recognizance before the Justice, acknowledging themselves to be indebted to the plaintiff in a sum sufficient to cover the matter in dispute, and all costs, upon condition that, if the judgment of the Justice be affirmed by the court, the defendant will pay the amount of such judgment and costs,'” which recognizance shall be subscribed by the party appealing and his securities, and tested by the Justice. See Dig. 373, sec. 55. It is clearly true, that the defendant did not in one single instance comply with any of these indispensable requisites; and, consequently, there was no appeal prayed for, or taken by him from the judgment of the Jus. lice’s Court. This being the case, it necessarily follows, that the Circuit Court had no jurisdiction of the cause, and of course could pronounce no valid judgment in the premises. In cases coming up on appeals from the decision of Justices of the Peace, the jurisdiction of the Circuit Court attaches and grows out of the appeal prayed and taken. And if there is no appeal, the Circuit Court cannot rightfully assume cognizance of the cause. And so it has been ruled in this Court, in the case of Smith vs. Stinnett. It unquestionably follows from these positions, that the judgment of the Circuit Court was wholly illegal and void, because it neither possessed or acquired jurisdiction of the subject matter in dispute, consequently the judgment and decision of the court below must be reversed with costs, the cause remanded to be proceeded in agreeably to the opinion here delivered, which is, that the Circuit Court dismiss the case for want of jurisdiction, and transmit the original papers back to the Justice’s Court for further proceedings therein, according to law and the instructions here ■ given. | [
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Rmao, Chief Justice,
delivered the opinion of the Court:
The defendant, in support of his demurrer, insists that a commission from the Governor to Hawkins is indispensable to his legal right to enjoy, hold, and exercise the office in question; that he never having obtained such commission there was a vacancy in the office which the Governor possessed the legal and constitutional right to fill, notwithstanding Ms election thereto by the Legislature, as stated in the replication ; and that the Governor, in the exercise of his constitutional. power and duty, having determined the existence of a vacancy in said office, and proceeded to fill the same by appointing and commissioning the defendant, his authority derived therefrom cannot legally be questioned, controverted, or annulled; because the exercise of such power by the judiciary, or any other co-ordinate department of the government, must, in its consequences and effect, destroy the independence of the Executive, and divest that department of its constitutional powers; and upon these principles the defendant mainly, relies, but also denies that there was any law in force by which the Legislature was authorized to elect a Commissioner of Public Buildings when Hawkins was elected to fill that office.
These positions and principles are controverted by the attorney for the State, who insists that the matters as set forth in the replication and admitted by the demurrer to be true, conclusively show that there was no vacancy in the office in question when the defendant was appointed and commissioned thereto by the Governor, and therefore the Executive possessed no power whatever to make such appointment.
The matters of the replication pleaded by the State in avoidance of the warrant shown by the defendant, so far as they are well pleaded, the law, in,the present attitude of the case, regards as being admitted to be true, and the simple question of their legal sufficiency to avoid or invalidate the right exhibited by the defendant is presented for the consideration and judgment of the court. But it is facts only, and not inferences or deductions of the pleader therefrom, set forth in the pleading, that are to be taken as true; and such inferences and deductions, though imprudently, or needlessly and improperly stated, must, according to the uniform and well established principles of law and practice, be altogether disregarded as irrelevant and impertinent; and the allegation in the replication that the act of the Legislature approved March 3d, 1838, entitled “an act providing for the appointment of Commissioner of Public Buildings,” was a law in force on the 11th day of December, A. D. 1838, when the Legislature elected Hawkins to that office, is, in the opinion of this court, embraced within this rule, and although positively averred, it must be regarded as an inference or conclusion of the pleader, rather than a matter of fact, necessarily and properly stated in the pleadings, because it is the province and imperative duty of the court to know the law, (and the law presumes every court to have a knowledge of all laws,) which of necessity includes a knowledge of the time at which the law commenced and took effect; for no enactment of the Legislature can be operative as law until such force is imparted to it in some method recognized or admitted by the Constitution or laws, existing at and previous to the time when it becomes obligatory as a rule of civil conduct.
And from the view which we have taken of the facts presented by the pleadings, we have no doubt, that it is our first duty to ascertain and determine whether the statute aforesaid, approved on the 3d day of March, A. D. 1838, had the obligation of law on the 11th day of December, 1838, when the Legislature elected Hawkins in the manner therein mentioned.
For it must, in our opinion, be conceded that if no such election was authorized by law, it must be x’egarded as an idle, inadvertent, and unauthorized proceeding, not vesting in the person who received the majority of votes, and was declared duly elected, any legal right to the office, which by law must have been filled by an Executive appointment. The Legislature, like every other department of the government,'is bound by the law, and if the law then in being vested the power of appointment to the office in question in the Executive department, no other department could in any mariner legally make the appointment; and there can be no doubt that the Governor possessed the power of appointing the officer in question until the statute of the 3d March, 1838, took effect, which divested him of that right, and vested the power in the Legislature. This office is created by statute, and the Legislature possessed the power of abolishing it altogether, or directing by law in what manner it should be filled; this latter power had been exercised when the office was created, and the appointing power conferred upon the Governor, which it was his right and duty to exercise, until the law imposing that obligation upon him was repealed. That it is now repealed, and the power of appointment vested in the Legislature, there can be no doubt, but the question is when was it repealed? Every one must admit that the repeal was concurrent with the taking effect of the statute of the 3d March, 1838. But when did this statute take effect? By statute approved November 18th, 1837, and in force from that day, it is declared that « none of the statutes that may be passed during the present session of the General Assembly, shall take effect, and be in force, until the Governor shall issue his proclamation declaring that such statutes are printed and ready for delivery, unless a different day shall he expressed in the statute” and another section of the same statute declares that «it shall be the duty of the Governor, as soon as the statutes that may be passed during the present session of the General Assembly are printed, to issue his proclamation in accordance with the provisions of the preceding section.” Rev. Stat, of Ark. 699.
That it was competent for the Legislature to prescribe the time when these enactments should take effect and be in force, as law, there can be no question, and that the time was prescribed by the statutory-provisions above quoted; where no time is expressed in the enactments* of that session, their taking effect is made to depend upon a contingent event in the future, that is, upon the issuing of a proclamation by the Governor, and to this rule there is but a single exception, and that is where the time is expressed in the act. This statute, in relation to the enactments of that session, abrogates the previous law on this subject, and prescribes a time different from, and inconsistent with the time previously prescribed by law; it establishes a new rule, but is not on that account less binding, and until it is repealed or superceded by some act of equal obligation, furnishes the criterion by which it must be determined when the statutes passed at that session acquire the efficacy and obligation of law; and such must be the case if the act is even to be regarded as of a local or temporary nature, because, under the provision of law above quoted the time at which the enactments of that session shall take, effect does not, in any respect, depend upon the character of its provisions; whether they are of a public, general, and permanent nature, or of a private, local, and temporary nature, they are, we think unquestionably subjected to the same rale which, as before remarked, could only be modified, suspended, or abrogated by some act of Legislative authority possessing every sanction necessary to impart to it the force and obligation of law. The act of the 3rd March, 1838, entitled “ an act providing for the appointment of Commissioner of Public Buildings,” and the act aforesaid, approved November ,18th, 1837, were passed at the same session of the Legislature, and the rule prescribed by the latter expressly applies to and suspended the operation as law of the provisions of the former, until the contingency happened upon which they were to be enforced, upon the Governor’s issuing his proclamation for that purpose, or the law suspending their operation was so far repealed by some subsequent act of the Legislature possessing the force and obligation of law, as to give them such force prior to and without the Governor’s proclamation being issued, neither of which being done until the 11th day of December, 1838, (the day on which the replication alleged Hawkins was elected by the Legislature Commissioner of Public Buildings,) the statute in question, approved 3rd March, 1838, had not, on that day, acquired the force and obligation of law, and the election of Hawkins, by the Legislature, to fill that office, was inadvertent and illegal, and did not confer upon him any legal right whatever to the office he was so elected to fill, nor can the facts set forth in the repli cation, by any form of pleading them, avoid or invalidate the right exhibited by the defendant’s plea, because they fail to show any legal incumbent of the office in question when the defendant was appointed thereto, and therefore the replication is, in the opinion of this court, insufficient in law to maintain the proceeding against the defendant. | [
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Lacy, Judge,
delivered the opinion of the Court:
The demurrer to the replication raises the only question presented by the assignment of errors, which is, was the legal interest in the writing obligatory, at the time of the institution of the suit, vested in the plaintiff in the action? The decision of this question involves the construction of our statute of assignments, and such general legal principles as are applicable to the case.
Anciently, at common law, choses in action were not assignable. They were first made so ás respects foreign bills of exchange by the law merchant, and the payee not only had the right of transferring the legal as well as the equitable interest in such instruments by endorsement, but the endorsee was fully authorized to commence and prosecute the suit in his own name. Subsequently, by the statutes of 9th and- 10th William III., and 3d and 4th Anne, inland bills of exchange and promissory notes were put on the same footing as foreign bills of exchange, and the law merchant declared to be applicable to them. The principles first introduced and established by the law merchant in regard to foreign bills of exchange, and afterwards extended and recognized by the acts above referred to, in relation to inland bills and promissory notes, doubtless give rise to most, if not to all the statutes of assignments of our own country. Our statute on the subject is very similar to that of Virginia and Kentucky, and is unlike the statute of Anne in every respect, except so far as it makes the legal as well as the equitable interest assignable, and authorizes the assignee to bring suit in his own name. In order that we may see its bearing on the question now before us, it is necessary to insert the act itself, and also such -parts of the plea and replication, as necessarily fall within its provisions.
The statute declares, that all bonds, bills, and promissory notes, for money or property, shall be assignable, and the assignee may sue for them, in the same manner as the original holder thereof could do; and it shall and may be lawful for the person to whom said bonds, bills, or notes, are assignable, made over and endorsed, in his own name to commence and prosecute his action at law, for the recovery of the money mentioned in such bonds, bills, or notes, or so much thereof as shall appear to be due at the time of such assignment, in like manner as the person to whom the same was made payable might or could' have done; and it shall not be in the power of the assignor, after assignment made as aforesaid, to release any part of the debt or sum really due by said bonds, bills, or notes, provided nothing in this section shall be so construed, as to change the nature of the defence in law that any defendant may have against the assignee, or the original assignor.”
The plea alleges, that after the making of the said writing obligatory in the said declaration mentioned, and before the commencement of this suit, to wit: On the 26th day of December, A. D. 1839, in the county of Hempstead, as aforesaid, the said James H. Walker made over, transferred, endorsed, and assigned, all his right, title, claim, and interest to a certain Nicholas T. Perkins, by description of N. T. Perkins, agent of D. Jeffries, guardian, &c., and then and there delivered the said writing obligatory, so endorsed and assigned, as aforesaid, to the said Nicholas T. Perkins. The defendant relies on these facts, in bar to the plaintiff’s right of action, and the plea, after setting up our statute of assignments, as constituting a valid defence, concludes with a verification. The replication admits the facts as pleaded, but alleges new matter by way of avoidance; averring that the said Nicholas T.- Perkins caused the said transfer and assignment to be stricken out and erased from said writing obligatory, by means of which said striking out and erasure of said transfer and endorsement by the said Nicholas T. Perkins, the legal interest in said writing obligatory was again reinstated in him, the said plaintiff, all of which he is ready to verify; and then it prays judgment for his debt, damages, and costs.
The demurrer to the replication in this case, raises the question, in whom was the legal interest vested at the lime of the institution of this suit? The inquiry, then, is, did the erasure or cancellation by the assignee of the assignment from the writing obligatory, without delivery or a re-assignment to the assignor, vest in him the legal interest, and thereby authorize him to. institute the suit in his own name? In examining this question, it should be borne in mind that the replication does not aver, that the assignor or obligor agreed to the erasure of the endorsement, or, that after the assignment was stricken out, that the writing obligatory was delivered or assigned to the original assignor. It merely alleges that the assignee caused the transfer and endorsement to be stricken out and erased from the writing obligatory, and by means of the striking out and erasure therefrom, the legal interest was again reinstated in the assignor. The truth or falsehood of this proposition we will now proceed to test; and in order to arrive at a correct conclusion on the subject, we shall have to analyze and determine the nature and character of assignable instruments, as fixed and ascertained by our statute. An assignment, then, according to our statute, is an agreement or contract in writing, entered into between the assignor and assignee, for a valuable consideration, is equivalent to drawing a new bill, in favor of the assignee, on the original obligor; and the assignee stands precisely in the same relation to the obligor after assignment, as the assignor did before the transfer was made, the legal as well as equitable interest passed by assignment and delivery., and the assignee acquires the right of action thereby, and is fully authorized to commence and prosecute the suit in his own name. After the assignment is once made, or becomes completed, the assignor has no power to release the debt, or any part thereof. The latter clause of the section declares that “ nothing shall be so construed in the statute, as to change the nature of the defence in law, that any defendant may have against the assignee or the original obligor.” The statute is express and peremptory on these points, and it leaves no room for doubt or construction in regard to them. The assignment in the case now under consideration, is alleged in the plea to have been filled up before the commencement of the suit with the name of the assignee as well as the assignor’s, and that by delivery, the writing obligatory was then passed into the hands of the assignee. This being the case, lie necessarily, by the statute, possessed the right of t action, and was entitled to the custody and safe-keeping of the writing obligatory, at the time the assignment was executed. The question then recurs, has he, since that time, rightly divested himself of these interests, and transferred them in a lawful manner to the assignor.
Admitting the assignment to be a contract, and that it is there can be no doubt, for all the authorities are full and conclusive on the point, the question is then, in what manner can the assignment be lawfully changed, cancelled, or revoked? See Chitty on Bills, 236, Lamber vs. Oakes, Holt 117 ; Ballingalls vs. Gloster, 3 East 483, Starey vs. Barnes, 7 East, 435. A contract is a mutual agreement of two or more, founded on a good or valuable consideration to do, or not to do, any particular thing. The agreement of two or more, competent to contract, being indispensably necessary to the formation of a valid contract, so it requires, likewise, their consent, when a contract is once properly executed, to revoke or dissolve it. In other words, the lights and obligations of each party to a contract being mutual and reciprocal, according to the terms and legal effect of their- agreement, these respective rights and obligations can neither be seriously altered or dcslroycd, unless ¡he pari) to whom they legally belong shall agree to their alteration or destruction, and even in such a case, his agreement must properly be given, according to the grade and dignity of the contract.
These principles, it is bélieved, are fully warranted and sustained by all the authorities on the subject, and are every way consonant to reason and justice. The application of these plain and familiar principles to the question now before the court, will determine the rights and obligations of the respective parties, as fixed by the contract of assignment. It certainly cannot be contended that the assignor has a right to strike out and erase the assignment, after he has once executed it, and the delivery thereof becomes complete. After the assignment, he ha$ no longer any control or power over the contract, because, by the assignment and delivery of the writing obligatory, all his interest is vested in the assignee, and he alone has the right of action in his own name; and the assignor cannot release any part of the debt due upon the bond, nor can he do any act that will change the nature of the defence that the obligor may have at law against himself, or against the assignee. Upon these points the Act is express and peremptory, and to allow him to do any thing injuriously affecting either the rights of the assignee or of the obligor, would be to permit him expressly to violate the provisions and intention of the statute. Independently of this, he would have no right or authority to alter or change the contract or assignment to the prejudice of the assignee or obligor, without their consent or agreement. These rights, whatever they may be, are vested by the assignment, and pass by the delivery of the writing obligatory, upon which the assignment is made, and being vested in them by the statute, they cannot be divested of them without an express and implied assignment on their part. It is then clearly manifest, that the assignor has no right to make any change or alteration in the contract whatever, so as to weaken or destroy the rights of the assignee or of the obligor. Neither has the obligor any right or authority to erase or strike out the assignment.— All the interest, both legal and equitable, is vested by the assignment in the assignee, and surely that interest or evidence, upon which it is founded, cannot be cancelled or obliterated without his consent. The only interest that the obligor has in the contract, is the guarantee that the nature of his defence at law, both against the assignee and assign- or, shall not be changed. This the statute in express terms secures to him, and the law will not even allow any agreement between the assignee and assignor, materially to weaken or impair this guarantee. That these positions are true in relation to the assignor and the obligor, cannot be doubted, for the statute imposes the obligations above referred to upon them, and they are bound by its provisions.
We will now see what right the assignee has to strike out and erase the endorsement, without the consent or permission of the other parties to. the contract.
There is. a mutuality of obligation subsisting between the assignee, and assignor, and the obligor of the bond. Neither party can do any thing forbidden by the statute, or in violation of these contracts. If the assignment and delivery of the writing obligatory pass the legal as well as the equitable interest to the assignee, and that it does no one can deny, then how can that interest be again reinstated in him, without a subsequent assignment and delivery of the bond ?
In this case, the plea shows that the endorsement was filled up before the commencement of the suit, and that the delivery of the bond was complete, all of which the replication admits to be true; and the doctrine is, “ after an endorsement is full, the endorser can only transfer his interest in the bill or note by his own endorsement in writing.” See Chitty on Bills, 953. An endorsement in full,-says Chitty, contains in itself a complete regular and legal transfer of the interest in the bill to the person named in the endorsement; and even if the instrument should afterwards be left in the possession of the endorser, that would not invalidate the transfer. And, therefore, the allegation in the pleading, that a person endorsed a bill to another, sufficiently imports a transfer of the entire legal and beneficial interest, without any allegation of delivery. Churchill vs. Gardner 7 T. R. 596; Smith vs. McClure, 5 East 477. An endorsement of a bill once complete, by delivery over to the endorsee for value, is not revocable without his consent. u An endorsement, like an acceptance, may, before it has been delivered over to a bona fide holder, be. revoked, afterwards it cannot, without his consent, and a re-assignment. Cox vs. Troy 5 B & A 474. It will be perceived that these principles are strictly applicable to bills of exchange, and if they are true in regard to them, they certainly will hold good as to assignable insrumenls under our statute, which do not vest by an endorsement in blank and delivery,but by being transferred, endorsed,and assigned over to the assignee. But it is contended that the endorser has come to the possession of the writing obligatory, and therefore he has a right to erase the endorsement, and re-invest the legal interest in himself. This, the court ate not prepared to admit, for the record does not show he is in the lawful possession of the writing obligatory. The legal presumption is otherwise, for as the suit is brought for the use of (he assignee, he is supposed to be in possession of the instrument. Besides, the replication admits such a state of fact as clearly prove that the legal interest at the time of the institution of the suit, was not vested in the assignor, and of course he was not the lawful holder or proprietor of the bond.
How, then, can it be said, that the assignee can restore the legal interest in the assignor, by the erasure or cancellation of the assignment? He may destroy the evidence of his own claim, but will that reinstate the legal and equitable interest in the assignor, without any agreement, re-assignment, or re-delivery ? If that be the case, the the party of his own accord can not only destroy the mutual obligation of a subsisting contract, but he can at the same time create another, and that, too, without the agreement or consent of the other parties, and in prejudice of their rights. Such a proposition is surely as illegal as it is unjust, and can never receive countenance or support in any legal tribunal.
Again, what right or authority has the assignee, without the permission or consent of the obligor, to change the nature of his defence at law? None at all. This, the statute expressly forbids. The moment the assignment is made, the obligor’s rights attach, and .they certainly cannot be prejudiced or injured against his will.— Neither can his defence at law be so embarassed or encumbered, as to make it less valuable or availing to him on the trial.
If this view of the question be correct, and that it is we have no doubt, then the legal interest at the time of the institution of the suit, was not vested in the assignor, and of course he has no right of action.
The decision of the court below, in overruling the demurrer, and giving judgment for the plaintiff, was therefore undoubtedly erroneous, and must be reversed with costs, and the cause remanded, to be proceeded in agreeably to the opinion here delivered. | [
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Ringo, Chief Justice,
delivered the opinion of the Court:
The plaintiff by his assignment of errors, to which there is a joinder, presents but two questions. 1st. Did the court err in overruling his motion to dismiss the suit for the want of a sufficient bond for costs ? 2d. Did the court err in overruling his demurrer to the plaintiff’s declaration? The fact that the plaintiff was a non-resident of this State when the suit was commenced, is not established by any thing contained in the record, and, therefore, upon the principles stated and acted upon by this court, in the case of Smith, et als., vs. Dudley, ex'r of Talbot, dec'd, decided at the late term thereof, we are bound by law to presume that the decision of the court, refusing to dismiss the suit on that ground, was correct. In addition to which, it has been held by this court, in the case of Means vs. Cromwell, 1 Ark. Rep. 247, that the failure of a non-resident plaintiff to file bond and security for costs, is matter in abatement only, which may be taken advantage of by plea, or motion made in pursuance of the provisions of the Statute in such case provided, and although that decision, so far as it relates to the taking advantage of this objection to the proceedings by motion, was governed by statutory provisions since repealed; yet the Statute, approved March 3, 1838, Rev. Stat. 201, under the provisions of which this motion was made, notwithstanding it changes materially the law on this subject, as to the manner of interposing this defence by motion, does not in any respect change the nature of the defence itself, or prescribe the time within which the defendant shall be at liberty to avail himself of it; and, therefore it must be regarded still as matter in abatement only, and whether interposed by plea or by motion made under the provisions of this Statute above cited, when the plaintiff is a non-resident of this State at the time of the institution of his suit, must be made in the order, and within the time prescribed by law, for pleading in abatement any personal disability of the plaintiff to sue; and if the defendant, instead of availing himself of this defence at the proper time, interposes a defence to the merits of the action, the law regards him as waiving the objection altogether, upon the same principle, by which the defendant is precluded by law from insisting upon any other matter of defence in abatement, if he omits to take advantage of it in the established order of pleading, or pleads to the action itself, in bar thereof, either before or after presenting the matter in abatement: and upon this principle the defendant below must be considered as waiving upon the record, his motion to‘dismiss, when he demurred to the declaration, and his adversary joined in the demurrer. The law regards a general demurrer to the declaration as a defence to the, action itself, in bar thereof, and therefore does not permit him to assign as error any thing in the decision or judgment of the court given upon said motion; for it appears tha't he has, by his own voluntary act, waived this matter of defence, and rested his defence upon matter in bar of the action itself.
The second question presented by the assignment- of errors, although argued at the bar, and mainly relied upon by the plaintiff, that there is a material variance between the obligation set forth in the declaration, and the one exhibited upon oyer, is not presented by the record before us, because it does not appear therefrom that óyer of the writing obligatory sued on, though regularly craved, was ever granted; and notwithstanding a joint and several writing obligatory, purporting to have been made and executed by the defendant below, and three others, whose names are not'mentioned in the declaration, corresponding in every other respect with the one therein mentioned and described, appears in the transcript of the record before us, it does not in any manner authorized by law appear to have been made a ¡part of the record of this case; and, therefore, this court in adjudicating the case, is not at liberty to regard it as a part of the record thereof. Divested of which, the record presents simply a declaration in debt, upon a writing obligatory, legally sufficient and technically formal in all its parts, the demurrer to which was correctly overruled by the .court.
Wherefore, it is the opinion of this court, that there is no error in the judgment of the Circuit Court given in this case for the defendant in error, and that the same ought to be, and is hereby, in all things affirmed with costs. | [
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Ringo, Chief Justice,
delivered the opinion of the Court:
We will consider and dispose of the questions presented in this case in the order in which they are stated, and for the purpose of exhibiting the true ground upon which the first exception is to be decided, it is necessary, to set forth so much of the testimony of the same witness, as will serve to show the connection, if any, between the matter objected to by the appellant and. admitted by the court, and the criminal conduct charged against him in this case. The bill of exceptions shows that the witness, then under examination, had been called and sworn on the part of the State, and testified, in substance, that she was at the house of the appellant, Dunn, in Phillips county, about the ninth day of January, 1839, setting in the gallery, in company with Dunn’s family, William Broadus, Charles Lucas, and a man by the name of Curtis; that she saw the deceased, John Williams, coming up the road with a gun on his shoulder; when in sight of the house he left the road and started around the field. That Dunn took his gun and ran across the field in the direction Williams was going: Williams run also. That after a short lime Dunn and Williams returned to the house together; and Dunn said, by God, boys, I got a prisoner. Williams shook hands with the company, and then called for some liquor; and said he was never so frightened in his life as when he saw Dunn coming after him; they all drank together; and Lucas said to Williams, I understand you have offered $60 to know whose hat was left when Dutch was shot, meaning Christian Earnest; Williams said I did. Lucas then said would you give it now. Williams said no, for he had spent part of the money.' Lucas then asked Williams what he would do if he knew who done it. Williams said I would bring them to justice. Curtis said, by God, Dunn, he belongs to the strong party. Dunn said yes, we must look out. Lucas and Broadus then commenced quarrelling with Williams, who said he had never had a quarrel with any man, and he hoped he never should, although he was no better to receive a load of shot than any body else. Dunn remarked, you had belter take care or you may catch one before you are ready for it. While they were quarrelling, Williams appeared to wish friendship, said he was going up to Askew’s for'some honey, bid good day, and started up the road; that soon after Williams started, Broadus took his gun and started in the same direction. Withess was standing in the back porch, and Broadus looking round, saw her, stopped, and came to the house, passed through the porch, and beckoned to Lucas; when Lucas took Dunn’s gun and started. The gun was at the door of the bar-room, and Dunn was sitting on the counter in the bar-room, with his face towards the door, where he could see Lucas take the gun. That Broadus and Lucas both followed in the direction Williams had gone, and after going some distance from the house, both started and run: soon after which witness heard a gun fire, and said to Dunn they are killing that man. Dunn said no, they are only trying their guns. In five or six minutes, witness heard another, gun, and again said to Dunn, they arc certainly killing that man. He again said no, they are only trying their guns, to let him know what they would do, if he did not leave the neighborhood. Curtis said to Dunn, while Broadus and Lucas were absent, after they left the house, well, they have shot twice whether they have done any thing or not. Dunn made no reply. Broadus had a rifle, Lucas a shot gun, they both returned in a short time to Dunn’s house, and Broadus came dancing around witness on the porch, and asked if she thought he would kill a man. She replied yes, she believed he had done it. He said no he had not, and would not. That after Broadus and Lucas returned they all went into the room and locked the door; witness went to go in and found the door locked, and Dunn’s wife said she could not come in then. After they come out of the room witness’s father came to Dunn’s, and Broadus commenced quarrelling with him, and he and Dunn had some quarrelling also, when her father told her to get ready and go home with him when she gathered up her clothes, &c., and got ready to start home. As she was about leaving, Dunn"came to her on the porch, and said, Elizabeth, if ever you tell of what you have seen and heard here this day, I will hear of it, and it will not be well for you. On the way to her father’s she saw in the road a paper wadding, fresh from the gun, where they had shot Williams; when about half a mile above Dunn’s, and' near Mr. Pledgers, they saw Williams lying on the bank of the river, moaning, and the persons around him said he was shot; when cross-examined, she said Dunn did not quarrel wifh Williams, but Broadus and Lucas did. That Williams had been at the house two or three times before, but she never heard Dunn make any threats against him. At this stage of the examination the prosecution asked the witness to state what she knew about the shooting of the Dutchman, (Christian Earnest,) which had taken place some days before. The prisoner objected to her answering or stating any thing in relation thereto, but his objections were overruled by the court, and the witness permitted to proceed, when she testified as follows: one evening Dunn had been down to a sunk boat, and was returning in his skiff about dark when he met Broadus and Lucas going down, got out of his skiff, and went back with them in theirs. Same night Dunn returned at one o’clock; asked his wife when he got in bed where witness was. His wife answered she was in the other bed, in the room, but that she was asleep, that she (his wife,) had called witness, and she did not answer. Dunn then told his wife that they had shot Dutch, meaning (Christian Earnest,) but they had not killed him, that Dutch was picking up wood when he was shot, and that he run, and hallooed to some one in the house, boys 1 am shot, but not bad hurt, or killed yet. Dunn said that the damned fool when he shot had run and left his hat. She told no person of these transactions until she went home, when she told her father and mother; and afterwards, when she went to live at Mr. Swearingen’s she told him.
That testimony of the persons guilt, or participation in the commission of a crime, or felony,' wholly unconnected with that for which he is put upon his trial, cannot, as a general rule, be admitted, is unquestionably true; but in cases where the scienter or the quo animo, is re. -quisite to, and constitutes a necessary and essentia] part of the crime with which the prisoner is charged, and proof oLsucli guilty know ledge, or malicious intention, is indispensable to establish his guilt, in regard to the transaction in question, as in cases of forgery, murder, and the like; testimony of such acts, conduct, or declarations of the accused as tend to establish such knowledge or intent, is competent legal testimony to go to the jury, notwithstanding they may constitute in law a distinct crime. Thus, upon an indictment for murder, former grudges and antecedent menaces may be proved to show the prisoner’s motive against the deceased. 1 Phil. Ev. 169; Ros. on Ev. 71. Testimony however of a distinct murder, committed by the prisoner at a different time, or of some other felony, or transaction committed upon, or against a different person, and at a different time, in which the prisoner participated, cannot be admitted until proof has been given establishing or tending to establish the offence with which he is charged, and showing some connection between the different transactions; or such defects or circumstances as will warrant a presumption that the latter grew out of, and was to some extent induced by some circumstances connected with, the former, in which case, such circumstances, connected with the former, as are calculated to show the quo animo, or motive by which the prisoner was actuated, or influenced, in regard to the subsequent transaction, are competent and legitimate testimony.
In the case before us, no upright mind possessed of rational powers, can hear and contemplate the facts and circumstances detailed in testimony by the witness, before she was asked to state what she knew about the shooting of Earnest, without perceiving at a single glance that the death of Williams may have been, and most probably was induced by the interest he had manifested, to ferret out and bring to justice those who had attempted the assassination of Earnest, And that it- was prompted by the desire on their part to shield themselves from the consequences of a prosecution therefor, by the destruction of one who had manifested a disposition to acquire information and knowledge as to the perpetrators of that crime, and expressed his determination to bring them to justice, if he knew who they were, must be obvious to every capacity, nor does it require more discrimination to discover the tendency and probable consequences of the acts and conduct of Dunn towards Williams. On the same day, and but a short time previous to his murder, consummated at once by the catastrophe itself and confirmed as" well by his conduct during the absence of Broadus and Lucas as upon ancf after their return to his house. And, therefore, testimony of Dunn’s participation in the attempted assassination of Earnest was material and legitimate to show the motive by which he was influenced in his conduct towards Williams, and fix upon him the charge of deliberate malice and settled hale towards the deceased, by showing such facts, as in the ordinary course of human events would seldom, if ever, fail to produce that state of feeling in the mind of the culprit, towards one whose determination to bring him to justice was known to and feared by him, and for this purpose the enquiry was proper, and the testimony elicited by it competent, as tending directly to establish a matter in issue constituting an essential ingredient in the crime charged in the indictment against Dunn, and therefore the court did not err in permitting the declarations of Dunn, as to his participation in the attempt to assassinate Earnest, to go to the jury as testimony in the case.
After the testimony, as above stated, had been given, another witness was called on the part of the prosecution, who proved that in January, 1839, he was at work in his field and heard the report of a gun, and soon after a second report of a gun, and heard some body cry murder, but he paid no attention to it until Mr. Pledger, who lives near to him, sent for him to go and see a man who had been shot, when he went with Mr. Pledger down the bank of the river, where they found John Williams lying in Pledger’s boat, moaning and making a great noise, and saying he was shot, but witness supposed he was drunk until they raised him up and saw the bullet holes and blood in his clothes. He complained of being sick, and asked for water, which they gave him, and laid him down on the ground. He said he wanted to go down to Mr. Dodge’s, who lived below Mr. Dunn’s, and he would give ‡150 to any one who would take him there in a boat, which no one appeared willing to do, and they all went up on top of the bank, and Williams crawled up, untied the canoe, got into it, and crossed the Mississippi river to a sand bar on the opposite side, which was the last he saw of him until he was taken up to be examined by the inquest several days after; when they were standing on the bank, Mr. Sprague and his daughter Elizabeth Sprague came along. When Williams’ body was taken up there were two bullet holes in his back;.one of them had ranged forward through the bowels and lodged against the skin, where it was cut out at the time the inquest was held, and he believes his death, was occasioned by the wounds inflicted. He was not acquainted with Williams, never having seen him until after he was shot. Upon cross-examination he stated that Sprague and daughter passed by a short time after the guns were fired the precise time he could not tell, but supposed twenty or thirty minutes, the defendant then asked the witness to state whether Williams did not say when he went to him that he was shot by mistake, to which he replied he did say so, but the prosecution objected to the question, and the court directed the jury that it was not evidence, it not having been made to appear that the deceased apprehended that he was dying, or would die.
Another witness was then introduced on the part of the prosecution who testified to the same facts as the last, and was asked the same question as to Williams’ declaration, how he had been shot, which was objected to by the prosecution, and the objection sustained by the court, and upon this state of the evidence the appellant insists that the declaration of Williams that he was shot by mistake was competent testimony, and the court erred in excluding it from the jury as deposed by the witness, and also in refusing to suffer the last witness to testify as to that fact, and state the declaration of Williams as to his having been shot by mistake.
The only satisfactory principle upon which the dying declarations of a person deceased can be admitted to establish the circumstances of his death, appears to us to be that they were made at a time when, in the mind of the deceased, all expectation of recovery was yielded up, and supplanted by the conviction that he would certainly die by reason of the injury received, and under which he then languished when, in the language of Chief Baron Eyre, in Woodcock's case, 1 Leach, 502, “ every hope of this world is gone; when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth, a situation so solemn and awful is considered by the law as creating an obligation equal to that which is imposed by art oath administered in court;” and therefore to warrant their admission it must be shown in the first place that the declaration was made under an apprehension of impending death. And this may be collected from the nature and circumstances of the case, although the declarant did not express such an apprehension; nor is it essential that the parly should apprehend immediate dissolution. It is sufficient if he apprehends it to be impending and certain; and this is always a question for the court to determine upon consideration of all the surrounding circumstances. 2 Starkie Ev. 460; Roscoe Crim. Ev. 25.' Having thus ascertained the governing principle, and also attentively considered all the circumstances in testimony, when the court excluded and refused to admit the declarations of Williams as testimony in the case as above stated, we are clearly of the opinion that there is nothing in the circumstances, as detailed by the witnesses, tending to prove that the mind of Williams was impressed with the conviction that his wounds were mortal, and he could Hot survive them, or recover from the injury thereby inflicted on him. He said he was shot, and moaned and made a great noise, complained of being sick, and asked for water, expressed a desire to go down to Mr. Dodge’s, and offered ‡150 to anyone who would take him- there in a boat; but afterwards untied the canoe, got into it, and crossed the Mississippi river to a sand bar on the opposite side. No examination of his wounds was made, nor was any intimation of his opinion as to their magnitude and probable effect given by the deceased, whose strength was not exhausted, though his wishes were disregarded. And when apparently abandoned to his fate, we find him escaping from the scene of violence and outrage to the desolate sand beach on the opposite side of the Mississippi, as if from fear of those around him, he sought refuge and security for his life by placing that great water between himself and the danger he apprehended of further injury from those who sought his destruction, while nothing transpired on his part calculated to evince the consciousness of his certain danger, or inevitablé death from the injury which he had already suffered, and'therefore the court, in excluding testimony of his declarations as to the circumstances of his being shot, did not err, but under the circumstances the testimony was properly rejected.
The record shows that the attorney for the State offered in evidence the affidavit of the appellant Dunn, taken before the Coroner at the inquest held by him over the body of Williams, which was objected to, when the attorney for the State introduced the Coroner as a witness to prove the statements made by Dunn at the inquest aforesaid, and the witness not recollecting them, was suffered to refer to said affidavit to refresh his memory, to which Dunn objected, and his objections being overruled he excepted to the opinions and decisions of the court in overruling his objections, and admitting oral testimony of the facts, deposed to and statements made by him, on oath, before the Coroner, at the inquest held by him over the body of Williams, which had been reduced to writing and subscribed by him, and attested by the Coroner, as well as the opinion of the court, allowing said witness to refer to said affidavit to refresh his memory as to the facts therein deposed to, and stated on oath by Dunn, the whole of which, as well as the oral testimony of the witness given on the trial is set forth in the bill of exceptions, but it is deemed unnecessary to state them here, as the question does not depend upon the facts exhibited by both, or either of them.
It is a general principle of evidence that secondary and inferior evidence, when it is attempted to be substituted for evidence of a higher and superior nature, must be rejected, the law requiring the best evidence to be adduced which the case admits of. And it is a universal rule that the contents of a writing cannot be proved by a copy, still less by mere oral evidence if the writing itself be in existence and attainable, and it is a general and most inflexible rule that oral evidence cannot be substituted for/a written document, which, by authority'of law, or by private compact, is constituted the authentic and appropriate instrument of evidence. 1 Stark. Ev. 102, 309, 394. By the law in force in this State, when the inquest was held over the body of Williams, .it was, amongst other things, made the duty of the Coroner to charge the jurors “ to inquire of the persons, who, if any, were present, the finder of the body, his or her relations and neighbors, whether he or she was killed in the same place where the body was found, and if elsewhere, by whom, and how the body was brought thence.” It was his duty also to administer an oath or affirma tion (o the witnesses, and their evidence was required to be taken down in writing and subscribed by them, and returned by him, with the inquisition, to the next Circuit Court, to be holden within the county. It is therefore very clear io our minds that the deposition of Dunn, taken before the Coroner, reduced to writing, and subscribed by the deponent, and attested by the Coroner, at the inquest held by him over the body of Williams, and by him subsequently returned to the Circuit Court, with the inquest, is a written document, which, by authority of law, is constituted the authentic and appropriate instrument of evidence, of what the witness then stated, and the deposition itself being in existence, and attainable, being then in court, in the hands of the attorney for the State, and oral evidence of the contents thereof, could not legally be admitted on the part of the prosecution. Besides which, the 67th section of chapter 45 of the Revised Statutes of this State, in force at the lime of this trial, declares that “ in all cases where two or more persons are jointly or otherwise concerned in the commission of any crime or misdemeanor, either of such persons may be sworn as a witness in relation to such crime or misdemeanor, but the testimony given by such witness shall in no instance be used against him in any criminal prosecution for the same offence.” Rev. Stat. Ark. 298. In this case Dunn, if guilty at all, as charged in the indictment, must have been concerned with Broadus and Lucas in the murder of Williams, and his deposition in question was given by him as a witness in relation to the very crime with which he is now charged as accessory before the fact, and for which he is prosecuted in this case, and therefore the statute expressly forbids his testimony, given at the Coroner’s inquest, being used against him, and therefore neither the deposition itself, or parol testimony of its contents, or of what he then stated in testimony before the Coroner, can now be legally admitted as evidence against him, in any prosecution for the murder of Williams, or as accessory thereto.
Hitherto we have considered such objections only as were presented by the appellant, and so far regarded and treated the proceedings which appear to have taken place in relation to this prosecution, subsequent to the indictment, as the judicial acts and proceedings of a legally constituted judicial tribunal, clothed with competent judicial powers to determine the matter, but the 223d section of chapter 45 of the Revised Statutes of this State, page 316, declares that no assignment of errors, or joinder thereto, shall be necessary upon an appeal or writ of error in-criminal cases, issued or taken pursuant to this act, but the court shall proceed on the return thereof without delay, and render judgment upon the record before them, whereby it becomes the duty of this court, in such cases, to consider the whole record, and render such judgment thereupon as may appear to be authorized by law. In the performance of this duly the court, upon examination of the record before them, in this case, conceived that other questions than those presented by the appellant might, and probably would, arise in the decision of the case, two of the most important of which were suggested to the counsel concerned, and argued at the bar: one of which, as was anticipated, we consider it our duty to decide; that is, as to the effect'd the omission to set forth on the record an order of the Judge for the organization and holding of a special term of the Circuit Court, pursuant to the provisions of the 29lh section of chapter 43 of the Revised Statutes of this State, page 233, which provides that “ the Judge of any Circuit Court may at anytime hold a special term for the trial of persons confined in jail, by making out a written order to that effect, and transmitting it to the Clerk, who shall enter the same on the records of the court.” It is a general rule that every statute, where it is practicable, must be so construed that every part and provision contained in it may have some operation. And another rule is, that all laws which relate to the same subject, must be taken to be one system, and construed consistently. Wc are therefore not to look alone to the section above quoted to ascertain the object of the Legislature in authorizing special terms of the Circuit Court to be held under the particular circustances therein mentioned, and here we may be-permitted to remark that it has been, as we conceive, correctly decided by the Supreme Court of the United States, that all courts, unless restrained by some statutory provision, have a right of adjourning their settings to a distant day, and the proceedings had at the adjourned session will be considered as the proceedings of the - term so adjourned. Mechanics' Bank of Alexandria vs. Withers, 5 Peters' Cond. Rep. 22. In the present case, how ever, it appears affirmatively by the record before us, that the proceedings against the appellant subsequent to the return of the indictment by the grand jury at the May term of the Phillips Circuit Court, A. 1). 1839, were not taken at an adjourned session of said court, and that they are no part of the proceedings of that court at said term, because they are expressly stated in the record to have taken place, “ at a special term of the Circuit Court, began and held at Helena, within and for the county of Phillips, in the State of Arkansas, on the 12th day of August, A. D. 1839, before the Hon. John C. P. Tolleson, Judge,” which repels every presumption that they are a part of the proceedings of said court at the preceding, or any other regular term thereof, and presents the naked question, whether from the facts appealing in the record they can be regarded as the judicial acts and proceedings of a legally constituted judicial tribunal.
. By the first section of the sixth article of the constitution it is ordained that the judicial power of this State shall be vested “in one Supreme Court, in Circuit Courts, in County Courts, and in Justices of -the Peace. The General Assembly may also vest such jurisdiction as may be deemed necessary in Corporation Courts; and when they deem it expedient may establish Courts of Chancery.” And (he third section of the same article vests in the Circuit Court “ exclusive original jurisdiction of all crimes amounting to felony at the common law: and requires that the Circuit Court hold its terms at such place, in each county, as may be bylaw directed.” By these fundamental provisions the Circuit Court, as contra-distinguished from the Judge, has unalterably' the exclusive original judicial cognizance of all crimes amounting to felony at the common law, but it is left to the Legislature to prescribe by law the times, as well as the place in each county, when and where the terms thereof shall be held, and it is deemed worthy of observation, that no judicial power whatever is conferred by the Constitution upon the Judge, as contra-distinguished from the court, unless he can derive it from the power with which he is clothed as a conservator of the peace within the circuit for which he shall have been elected, or may possess the power of adjudicating certain cases upon writs of habeas corpus, by virtue of that clause in the declaration of rights, in the Constitution, which prohibits any suspension of the privilege of the writ of habeas corpus, unless where, in cases of rebellion or invasion, the public safety may require it; and it will be found upon investigation of the subject that there is no other instance in which he is possessed of, or can in his character of Judge separated and contra-distinguished from the court, exercise judicial power, the whole of which, except it is otherwise expressly delegated to some other authority or tribunal by the Constitution, is conferred upon and must remain the courts, and Justices of the Peace. The common law defines a court to be a “ place where justice is judicially administered,” and therefore to constitute a court there must be a place appointed by law for the administration of justice, and some person authorized by law to administer justice at that place, must be there for that purpose. Then, but not otherwise, there is a court, and the judicial power of the State may be there exercised by the Judge or person authorized by law to hold it; and if the law prescribed no time lor holding the court, the Judge might lawfully hold it when, and as often, as he chose. So, likewise, if the place was left to his election, instead of being fixed and prescribed by law, he might lawfully set in judgment, where he pleased, within the territorial limits prescribed to his jurisdiction, but in this State both the time and place of holding the terms of the Circuit Court in each county, are prescribed by law, and m many counties the duration of the terms limited to a single week; in some the court is required to continue in session until the business before it is disposed of; but under particular circumstances, and subject to certain limitations prescribed by the statute, a special term of any Circuit Court may be held “ for the trial of persons confined in jail,” Or, according to the provisions of the 28th section of the 43d chapter of the Revised Statutes, page 233, “ special adjourned sessions of any court may be held in continuation of the regular term upon its being so ordered by the court or Judge in, term time, and entered by the Clerk on the record of the court;” and in either case it is essential that the order be entered on the records of the court, though the necessity for such record is more forcibly seen, if not more imperatively required, in the former than it is in the latter; because, when the time and place are prescribed by law, as they are for holding the regular terms by a general law of which every person is cognizant, all whom duty binds, or interest prompts, to be there present, know the time and place, when and where, their obligation is to be performed, or their rights, if they be suitors, adjudicated; and such persons arc for most purposes presumed to be present during the term whatever may be its duiation, but when the regular term has expired or determined by operation of law, or by an adjournment to the next succeeding regular term thereof, all business therein, not otherwise disposed of, is continued by operation of law, to the next regular term, and cannot, except in the particular cases specially provided for by the 29th section of thé statute above quoted, be adjudicated prior to the term to which they were continued, and those concerned arc under no legal obligation to be prepared therefor at a previous day; and furthermore in regard to the regular terms, nothing is dependent upon facts to be made out and recorded, to authorize their being held, as must be the case in regard to special terms ordered by the Judge and the provisions of the statute. We simply look to the law' and there discover the time and place, and then turn to the record and ascertain that the Judge authorized to hold the court was then and there present, and recognize in this union and combination of circumstances a court legally constituted and vested with judicial power; the adjudications of which must be regarded as judicial. Such however is not the case in regard to a special term, the authority to hold which depends upon the following facts and circumstances. 1st. That some person is confined in jail who may be lawfully tried by that court upon some criminal charge. 2d. That it shall not interfere with any other court to be held by the same Judge. 3d. That it shall not be held within twenty days of the regular term of such court. 4th. That an order therefor, as required by the statute, be made out by the Judge, and by him transmitted to the Clerk; and 5th. That the same be entered on the records of the court. These circumstances are considered essential to the legal appointment, constitution, and organization, of a special term of the Circuit Court, because it is a special authority conferred upon the Judge to accomplish a specific and specified purpose contrary to the general and regular course of proceeding prescribed by law, and therefore being a special power, every circumstance necessary to its exercise must exist and be made to appear of record, otherwise the power cannot appear to have been legally exercised, and the most important circumstance upon which the right of power of the Judge to order a special term of the Circuit Court is made to depend, cannot judicially appear otherwise than by being made of record, it being a matter altogether in pais, and if the law docs not require such fact to be made of record, the statutory provisions designating a lime for holding the courts is nugatory, and the Judge may, notwithstanding, hold the court as well at any other time, and proceedings thereat will have to be regarded as judicial and warranted by law, but no such construction of the several statutory provisions under consideration is, in our opinion, justifiable, because it would defeat the whole object of their enactment, and leave in the Judge a discretion of which the Legislature obviously designed to divest him. By authorizing special terms to be held for the trial of persons confined in jail, the Legislature intended to expedite the administration of justice in that class of cases only where the party to be tried is deprived of his liberty, and the power of the court, when properly organized, is limited to them, and cannot, in our opinion, under the provisions of this statute, be legally execised over any person not confined in jail when the order was made, which must be at least ten days previous to the commencement of the term. Otherwise, the provisions of the 30th and 31st sections of the 43d chapter of the Revised Statutes, cannot be complied with, which, although they are only directory to the Judge, serve to explain and illustrate the design of the 29th section before quoted. The former requires the Judge, in liis order for a special term, to issue a venire facias to the Sheriff, requiring him to summon a grand jury to attend such special term, if any person shall be confined in jail who may not have been indicted. And the latter requires the Judge ordering such special term, when the same shall be ordered under the provisions above quoted, to “ cause a notice thereof to be served on the attorney for the State prosecuting for such Circuit, ten days before the commencement of such special term.” We are therefore satisfied that the order for the special term must be made at least ten days before the commencement of the term, and designate the persons to be there tried, and state that they are confined in jail, and whether they have been indicted, previously or otherwise, and if they, or either of them, have not been indicted for the offence for which he is to be there trica, the order must contain a direction to the Clerk to issue a venire facias to the Sheriff, requiring him to summon a grand jury to attend such special term of the court, which order must, according to the express requisition of the law, be transmitted to the Clerk, and be by him entered on the records of the court, when, if the time mentioned in the order for the special term be such as not to interfere with any other court to be held by the same Judge, nor “ within twenty days of the regular term of such court,” so that it does not come within the prohibition of the 33d or 34th sections of chapter 43 of the Revised Statutes, page 234, every requisition of the law authorizing such special term having been observed and complied with, if the record shows in addition thereto that the Judge authorized by law to hold such court was present at the time mentioned in the order for such special term at the place prescribed by law for holding such court, the court will be legally constituted; and in regard to such persons as are confined in jail and designated in the Judge’s order, may legally exercise the judicial power vested in it by the Constitution, and its adjudications in such cases will possess the force and obligation of judicial acts and judicial authority, because the record and the law furnish.conclusive testimony that there was a court legally organized and competent to determine the matter judicially. If these positions be not true, how are the extra-judicial acts of a Judge, if he shall assume the power of holding a special term of the Circuit Court without any order whatever appointing a time thereof, or any notice to the attorney for the State, or the persons to be tried thereat, to be distinguished irom the judicial proceedings of the court? No one, we will presume, would undertake to justify such assumption of power by the Judge, and yet if the facts and circumstances, the existence and concurrence, of which are under the statute indispensable to the authority of the Judge to order or hold such special term, may be omitted in the order therefor, or need not be set forth in the record of the court. There can be no means of distinguishing the one from the other, and such acts of the Judge as are clearly unauthorized, and unquestionably void, would nevertheless carry with them and bear upon their face incontrovertible testimony that they were the acts and proceedings of a legally constituted court, which is contrary to every principle of law and justice; besides which if such construction could be indulged, it would place it in the power of the Judge, if one could be found profligate and reckless enough for the purpose, to shield the guilty from merited punishment, or jeopardize the liberty or life of the innocent by holding a special term of the court without previous notice, or any opportunity for preparation to the one party or the other, as his prejudices, sympathies, or interest, might induce him to desire the conviction or acquittal, preservation or destruction, of the accused, and although we are fully assured that no such advantage was given to either party in the case before us, and we do not in the slightest degree censure or impugn the motives of the Judge before whom the proceedings were had in this case; for we doubt not he acted throughout the whole course of the, proceeding in an upright and impartial manner, and as he conceived, legally, in the discharge of a solemn and important duty; yet it is very clear to our minds that the law under consideration was never designed to confer such power upon any Judge as would enable him in that manner to sport with public justice, and that any interpretation thereof, which would admit the existence of such power in any Judge, cannot be just; and, therefore, as such facts and circumstances, as are indispensably necessary to have existed in combination, before the Judge could legally order a special term, or a special term of the Circuit Court could be held, do not, from the record before us appear to have existed, when the proceedings in this case subsequent to the indictment, and issuing of the capias ad respondendum, took place, they must be considcred as proceedings before the Judge simply, as contra-distinguished from the court, and cannot be regarded as the judicial proceedings and adjudication of the Circuit Court of Phillips county upon the charge preferred by the indictment against Dunn; and they are, therefore, in the opinion of this court, corum non judice and void, which being,the case, the life of Dunn cannot be considered as having been within the contemplation of law put in jeopardy thereby, and therefore there is no necessity' for us to decide in this case any thing as to the effect and operation of the provision in the Constitution of this State, as well as the United States, that “ no person shall for the same offence be twice put in jeopardy of life or limb,” as he may yet be lawfully tried precisely as if no such proceeding had ever taken place before the Judge.
And this imposes upon us the necessity of inquiring into and ascertaining whether this is, under the circumstances, a case within the appellate jurisdiction of this court, under the Constitution and the laws restricting and regulating the right of appeal to this court.
In the second section of the sixth article of the Constitution it is, amongst other things, ordained that “ the Supreme Court, except in cases otherwise directed by this Constitution, shall have appellate jurisdiction only, which shall be co-extensive with the State under such restrictions and regulations as may from time to time be prescribed by law.” This fundamental law, so far as it relates to the present question, does not, in any respect, differ materially from that clause in the Constitution of the United States, which declares that “the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make;” in commenting upon which, and defining the meaning of the terms “ appellate jurisdiction,” as there used, Judge Story, in the third volume of his Commentaries on the Constitution, page 626, says “ the essential criterion of appellate jurisdiction is that it revises and corrects the proceedings in a cause already instituted, and does not create that cause in reference to judicial tribunals: an appellate jurisdiction, therefore, necessarily implies that the subject matter has been already instituted in, and acted upon, by some other court, whose judgment or proceedings are to be revised. This appellate jurisdiction may be exercised in a variety of forms, and, indeed, in any form which the Legislature may choose to prescribe, but still the substance must exist before the form can be applied to it.”
To operate at all then, under the Constitution of the United States, it is not sufficient that there has been a decision by some officer or department of the United States. It must be by one clothed with judicial authority and acting in a judicial capacity. And it is upon this principle that the Supreme Court of the United States, in the case of Marbury vs. Madison, reported 1 Cranch, 175, and 1 Peters’ Cond. Rep. 267, refused to entertain jurisdiction of that case, which was an application for a writ: of mandamus to the Secretary of State of the United Stales, directing him to deliver to Marbury his commission as Justice of the Peace for the county of Washington, in the District of Columbia, and decided that it was neither a case within the appellate or original jurisdiction of the Supreme Court, as unalterably defined and prescribed by the Constitution; and held so much of the act of Congress to establish the judicial courts of the United States as purported to authorize the Supreme Court “ to issue writs of mandamus in cases warranted by the principles and usages of law,” to any person holding office under the “ authority of the United States,” other than the judicial courts of the United States, to be repugnant to the Constitution, and therefore void, and the principle upon which this decision was made has never, within our knowledge, been, and, in our opinion, never can be, successfully controverted.
And, in our opinion, the same language, as it is used in that clause of the Constitution of this State, now under consideration, must receive the same construction, and have the like application given to it as has been given thereto, and used in the Constitution of the U. States; for they are used in reference to the same object, that is, to define in part the jurisdiction of the Supreme Court, and were adopted by those who framed the Constitution of this State, with a full understanding of their application, as ascertained and defined by the adjudications and commentaries aforesaid; and, therefore, it is reasonable to presume that they were not designed to include any thing more than they are understood and held to embrace by the construction which they had previously received; and it is, therefore, to our minds, manifest that the appellate jurisdiction of this court does not, and under the Constitution can never be made to extend to the proceedings or decision of any officer or tribunal whatever, other than the judicial proceedings or determinations of some court or Justice of the Peace vested with some portion of judicial power by or under the authority of the Constitution itself; and as we have already determined that the proceedings which from the record before us appear to have taken place subsequent to the indictment being returned at the regular term of the Circuit Court, in May 1839, must be considered as proceedings before, and decisions of, the Judge simply, and not of the court, and that they are coram nonjudice. It follows, as a necessary consequence, that the Superior Court has not appellate jurisdiction of the case, wherefore the same ought to be, and hereby is, dismissed from this court. But from the proceedings which appear by the record before us to have taken place before the Judge of the Circuit Court of Phillips county, in relation to the crime with which the appellant stands charged by the indictment returned into said Circuit Court, and still pending therein against him for adjudication, we consider it our duty to exercise the authority vested in the Supreme Court by the Constitution, by suspending absolutely all of the proceedings in this cause had before the Judge of the Circuit Court of Phillips county aforesaid, since the adjournment or expiration of the regular term of said court, which commenced on the first Monday of May, A. D. 1839, as the same appear to have taken place improvidently, irregularly, and illegally, and to have been entered on the records of said court as parcel of the judicial proceedings thereof, and the Clerk of this court is hereby directed and required to issue a writ of supersedeas, without delay, to the Judge of said Circuit Court, and the Sheriff of said county of Phillips, commanding them, and each of them, to supersede and desist absolutely and for ever from further proceeding in the execution of the said extra-judicial sentence of death pronounced against the said Hiram Dunn, which appears by the record before us to have been entered on the record of said Circuit Court on the 17th day of August, A. D. 1839. | [
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Lacy, Judge,
delivered the opinion of the court:
The doctrine in regard to granting new trials upon the ground of newly discovered testimony, is fully explained and established in the case of Robins vs. Fowler, heretofore decided at a previous term of this court. Indeed the authorities are so numerous and full upon the point, and the reasons and principles upon which they rest, are so obvious and conclusive, that it seems almost impossible, to overlook the essential requisites that the law requires to entitle a party to a new trial. Jle must have been guilty of no neglect or laches in preparing his case for trial. It must have been out of his power to procure the newly discovered evidence upon the former trial by due diligence and exertion to obtain it: and he must show to the court that the newly discovered evidence is material and important, by the affidavit of the witness, or by some other legal means; so that the court may judge of its materiality and sufficiency; and it must not be cumulative in its character and consequences. It is the duty of the parties to come prepared upon the principal points; and new trials would be endless, if every additional circumstance bearing upon the facts in litigation were a cause for new trial.
Cumulative evidence is such as tends to support the fact or issue which was before attempted to be proved upon the trial. The newly discovered evidence, in the present instance, does not possess a single requisite which would authorize its introduction; and even if admitted, it would notvary and alter the finding. The defendant below proposes to prove that it is within the knowledge of the witness that a large portion of the goods sold by him at the store of the plaintiff, were purchased in New-Orleans, and forwarded in the name of the defendant. This fact he swears to himself, but he has not substantiated it by the affidavit of the witness; nor has he shown that he used due diligence to procure the testimony on the former trial. If all these requisites were established, still the testimony would be inadmissible, for it is certainly cumulative evidence, because the issue was formed and tried in regard to the partnership of the parties. Again the evidence, if offered, is inadmissible on another ground, because it would not prove, or tend to prove the existence of a partnership. As the defendant relied upon the existence of a partnership in bar of the-plaintiff’s action, he was bound to prove it affirmatively, as he would any other given fact upon which he rested his defence. Chancellor Kent in the 3d vol. of his Commentaries, pages 23 and 24, has defined a “ partnership to be a contract of two or more persons to place their money, effects, labor or skill, or some or all of them in lawful commerce or business, and to divide the profit and •bear the loss in certain proportions.” The leading principles of such a contract are a common interest in the stock of the company, and a personal responsibilityin the partnership engagements.” If one person advances funds, and another puts against it his personal services or skill, for the purpose of carrying on trade, and they are to share the profits between them, this amounts to a partnership, provided he who has an interest in the profits, does not receive his share as a mere substitute for commissions; and is received in the company as a partner or merchant, and not as a factor or agent. To give a clerk or agent, a portion of the profits of sales, as a compensation for his labor, on the amount of goods sold, does not constitute the agent or clerk a partner in the business, if it appear that it was intended as a mode of payment adopted for the purpose of increasing diligence and securing exertions. Chase vs. Barrett, 4 Paige, 148; Hesketh vs. Blanchard, 4 East. 144; Wilkinson vs. Frazier, 4 Esp. 183. Upon the principles of commercial policy, an agreement may constitute a partnership as to third persons, when it creates no such relation between the parties themselves. This distinction runs through all the authorities upon the subject, and is based upon the soundest principles of commercial intercourse, and of public policy. A party who receives a share of the profits individually, shall by intendment of law be held liable for losses if any occur, for by taking a part of the profits he withdraws from the creditors a portion of that fund which is the proper security for the payment of these debts. Waugh vs. Carver, 2 H. B. 328; Ross vs. Drinker, 2 Hall, 415; Champion vs. Bostwick, 18 Wend. 176; Jordon vs Wilkins,3 Wash. C. C. R. 110. Consequently they who hold themselves out to the world as partners in business or trade, are to beso regarded quoad creditors and third persons; and the partnership may be established by any evidence showing that they so hold themselves out to the public, and were so regarded by the trading community. But between themselves, as before laid down, the rule is different; and the agreement or contract alone constitutes them partners, and whether it be by parol or in writing, or whether express or implied, is as capable of being proved as any other fact, and must be established by the same grade or species of evidence. The proof in the case now before us satisfactorily shows that Olmstead was not received by Hill as his partner or merchant, but merely as his agent and clerk, whose wages were to be paid out of the profits of the sales of the goods. There was no joint ownership of the funds, no agreement to participate and share the profits and losses of the business. The plaintiff below supplied the entire fund, and was alone responsible for the losses. The defendant merely acted as his agent or clerk. And this being the case,, he cannot in any possible point of view be considered as a partner in the business. The judgment of the Circuit Court must therefore be affirmed with costs. | [
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Bingo, Chief Justice,
delivered the opinion of the Court:
By the assignment of errors, to which this is a joinder, the following questions are presented. 1st. Did the court err in overruling the plea of nil debet, on the demurrer of the plaintiff to said plea. 2d. Was the plaintiff in the Circuit Court entitled by law to a judgment by nil' dicit. 3d. Is the judgment, as given and entered in favor of the plaintiff below, warranted bylaw. 4th. Ought the judgment to have been set aside on the motion of Wooster.
These questions will be examined and disposed of in the order in which they are stated.
Two counts of the declaration are founded on writings obligatory, and the plea purports to answer the whole declaration. There can, be no doubt that nil debet is not a good plea to so much of the action as is founded on writings obligatory, and the rule is equally well settled that a plea, bad in part, is bad for the whole, and therefore the plea in question, was properly overruled by the court on the plaintiff’s demurrer.
The record proves, as before stated, that the replications of Clarke to the pleas of payment and set-off, tender an issue to the country in which Wooster failed to join by adding the “ similiter,” and for this default,, judgment was given against him by nil dicit, and the question is, is-this such a default in pleading as in law justifies the plaintiff below in proceeding to take judgment against the defendant as by nil dicit. The general rule is, that such judgment may he entered in cases where the defendant after he has appeared to the action, has not pleaded within the time limited by law, or the rules of the eourt, or in a proper manner, or where he has pleaded some plea not adapted to the nature of the action, or circumstances of the case, or the like. 2 Arch. Prac. 8; 1 ib. 120; Tidd’s Prac. 506. But where'the defendant, as in this case, has pleaded within the time prescribed, in a proper manner pleas adapted to the nature of the action, and circum-. stances of the case, which if determined in his favor upon an issue properly formed, thereupon, would bar the action, or so much thereof as the pleading purports to answer, and to which the plaintiff has replied merely negativing the facts pleaded by the defendant, and tendering an issue to the country, such judgment is, in our opinion, not warranted by law; because, there is an issife formed upon the record, without the similiter, which is mere matter of form, and may in all such cases be added by the plaintiff, subject however to be struck out by the defendant if he wishes to demur to the replication. Arch. Prac. 125, 126. An- issue is defined to be a single, certain, and material point issuing out of the allegations and pleas of the plaintiff and defendant, consisting regularly of an affirmative, and negative, to be tried by twelve men. Co. Litt. 126; Bac. Ab. Pleas and Plead. G. If this be the true definition of an issue, and that it is there can be no doubt, the facts affirmed by Wooster, and denied by Clarke, certainly constituted an issue which was material and capable of being tried by a jury, and the omission to add the similiter, which might as well have been added by the plaintiff as the defendant, surely cannot be regarded otherwise than as a merely formal defect; if, indeed, it is not, as it has been held in England to be, implied in the “&c.” added to the pleading. Sayer vs. Pocock, 1 Cowper 408. It is certainly true that the omission to add the similiter, was originally holden to be matter of substance not to be aided or amended. 1 Str. 641. But the contrary has been uniformly ruled since the decision of the case in Cowper above cited, in which in delivering the judgment of the court, Lord Mansfield says, “ one is ashamed and grieved that such objections remain. They have nothing to do with the justice of the case, but only serve to entangle without being of the least aid in preventing irregularity. Without considering whether it is within the Slat, of Jeofails or not, it is best to amend to avoid a writ of error, and there are these grounds which satisfy me that the matter in the case is amendable. 1st. That it is an omission of the Clerk. 2d. I will in this case adopt the reasoning of Lord Coke, and construe “ &c.” every necessary matter that ought to he expressed. Co. Litt. 17 b. 3d. By amending, the court only make that right which the defendant himself understood to be so by going down to trial.” And, notwithstanding the facts in the case of Sayer vs. Pocock, are not in every respect similar to the facts of the case before us, the principle upon which the amendments were admitted in the former, applies with equal force to the latter, regarding the similiter as mere matter of form, implied in the “ &c.,” adopted and added to the replication, and thereby imposing on the plaintiff the necessity of trying the issues so formed in some manner authorized by law. We are, therefore, of the opinion that the plaintiff, instead of entering the judgment as by nil dicit, or for want of a plea, was bound by law to have proceeded to a trial of the issues on record in the case, the addition of the similiter being only matter of form,- which he ought to have supplied before the case was tried, as the defendant had omitted to do it. But the omission thereof would not of itself vitiate the verdict or justify a judgment by nil dicit in any form.
The judgment is uncertain in. itself, and does not pursue or confort» to the provisions, of the Statute, approved November 3d, A. D. 1836, by virtue of which interest may be adjudged at any rate specified in the instrument sued on, not exceeding ten per cent, per annum-, according to the' stipulations of the contract: besides which the judgment is for too much. The act above cited makes it the duty of the court, in ali cases, to ascertain the rate of interest to be recovered, and' express-the same in the judgment. Instead of conforming to the provisions of the Statute, the court, as appears by the judgment before us, computed the interest which had accrued.on some of the demands specified in the declaration at the date of the judgment, and then proceeded to give judgment for such demands, as well for the debt in the declaration mentioned, and the interest for the amount computed thereon-as aforesaid, as for so much damages sustained by reason of the detention of such debt, to bear interest at the rate mentioned in the- judgment;which does not ascertain with sufficient certainty whether the interest specified in the judgment shall be computed from the several sums adjudged to the plaintiff, or upon either the debt or damages only; and if, upon either separately, it is not defined with sufficient certainty which shall bear the interest, or the time from which, or until which, the same shall be computed and recovered, according to the provisions of the Statute above quoted. A grammatical construction of the language used in the judgment, would properly restrict the computation of interest especially adjudged, to the damages only, which would be wholly illegal. Again, by disregarding the grammatical construction of the sentence, the language used might, and probably would in the common acceptation thereof, have to be regarded as giving interest upon the several sums adjudged as debt and damages, in which event, the judgment would be for too much. But suppose it applied alone (which, in our opinion, it cannot by any fair and reasonable construction) to the sums adjudged- as debt, still the judgment would- be, not only informal and uncertain, but for a larger sum than is authorized by law upon the premises, as set forth in the judg meat, because the interest computed to the date of the judgment, and adjudged as damages for the detention of the debt would, by virtue of the provisions of the Statute, bear interest at the rate of six per centum per annum from the date of the judgment until paid. The whole amount of the accruing interest upon which is, therefore, by this judgment illegally recovered of the defendant, as without this the the plaintiff recovers the full amount of interest as stipulated in the .'contract which is all that the law will suffer him to have.
The view which we have taken renders it wholly unnecessary for us to examine the fourth question presented by the assignment of errors, as the judgment must be reversed for the reasons and upon the grounds before stated, and no question thereupon can arise on the return of the case to the Circuit Court, and, therefore, we express no opinion upon it.
Whereupon, it is the opinion of this court, that the judgment of the Circuit Court of Conway county, given in this case, ought to be, and is hereby, reversed, annulled, and set aside with costs, and the cause remanded to said Circuit Court, for further proceedings therein to be there had, according to law and not inconsistent with this opinion. | [
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McCulloch, C. J.
Appellant, a domestic corporation, is engaged in the wholesale dry goods business in the city of Fort Smith, and operates an elevator which transports passengers and freight from floor to floor in the store building. Appellee received severe personal injuries while ascending from one floor to another in the elevator, and he instituted this action to recover compensation for his injuries, alleging that the same were caused by the negligence of appellant in the construction and operation of the elevator. There was a denial in the answer of each of the allegations of negligence, but a trial of the issues before a jury resulted in a verdict in appellee’s favor assessing damages in the sum of $7,000.
Appellee went into the store of appellant to purchase certain articles of merchandise, and was invited by a salesman into the elevator to be carried to an upper floor of the building for the purpose of being shown the articles sought to be purchased. The elevator was used for lifting freight as well as passengers, and was operated by means of a rope cable handled by the operator. ‘\Vhen appellee entered the elevator he was accompanied by two of the employees of appellant, both of whom were salesmen, and one of whom was on this particular trip operating the elevator. There was an incandescent electric lamp hanging immediately in front of the elevator, but it was not lighted at that time, though according to the evidence the day was a dark and cloudy one. There was a closed door on the opposite side of the elevator from the side on which appellee and his companions entered. The elevator was enclosed by a brick wall, and beneath the door on the back side was a wooden beam seven or eight inches wide and three and a half inches thick, which extended out into the elevator hole about eighteen inches above the line of the first floor of the building. When the elevator stood at the first floor, there was a clearance of about three and a half or four inches between the elevator floor and the brick wall on the back side, but when the elevator passed the beam just referred to in ascending, this clearance was completely taken up, and the floor of the elevator came nearly in contact with the beam as it passed. Above the beam there was a space of about eighteen inches, the thickness of the brick wall, between the inside of the elevator hole and the closed door. The brick wall, the beam and the closed door were, according to the testimony, painted the same color, and, in the semi-darkness which prevailed when the light was not turned on, it was not easy to discover the beam jutting out into the elevator hole. When appellee walked into the elevator, he stepped over toi the back side and turned around fronting the door through which he had entered and took a position with his heel partly extending over the clearance space between the floor of the elevator and the brick wall at the back. He was not aware of the fact that his heel thus extended over the clearance, nor that the beam jutted out into the hole so as to close up the clearance space as the elevator ascended. Mr. Williams, one of the salesmen, took hold of the cable and started the elevator upward, and as it arose to the beam appellee’s heel was caught, and very serious and severe injuries were inflicted.
It is unnecessary to discuss the extent of the injury further than to say that the proof was sufficient to warrant the recovery of the amount of damages awarded by the jury.
There were five acts of negligence charged against appellant, which are set forth in the brief of counsel in the following order:
“First. Negligent operation of the elevator without any railing, board or other obstruction around the back of the elevator; second, negligently permitting the elevator well to be suddenly reduced by the beam, the beam coming abruptly out from the wall, thus suddenly reducing the clearance; third, negligent failure to have a flange of board or metal inclining from the beam downward toward the wall; fourth, negligently failing to have.a light in front of the elevator; fifth, the negligence of Tom Williams in suddenly starting the elevator upward. ’ ’
It is contended, in the first place, that the evidence is not sufficient to warrant the finding of negligence in either of the respects mentioned. We are of the opinion, however, that there was sufficient evidence to support a finding of negligence on the part of appellant in the construction and operation of the elevator, and also there was sufficient evidence to support the finding that appellee was not guilty of contributory negligence. It was a dark and gloomy day and the electric lamp in the front of the elevator was not lighted. The back wall of the elevator was so constructed as to be deceptive in appearance and to mislead a person entering the elevator for the purpose of ascending to another fio'or. The jutting of the beam out into the elevator hole so as to close up the space between the wall and the floor of the elevator, without affording some sort of protection to one who inadvertently overstepped the edge of the elevator floor, was sufficient to constitute negligence, or at least to authorize the inference of negligence from those facts.
The court gave, at appellee’s request, instructions submitting generally the question of negligence to the jury without enumerating in detail the alleged acts of negligence set forth in the complaint. Appellant asked five separate instructions excluding from the consideration of the jury each of the alleged acts of negligence, and it is now argued, as grounds for reversal, that at least three of those alleged acts did not constitute negligence and were not the proximate cause of appellee’s injuries and should have been taken from the jury by the three requested instructions. The instructions which it is contended the court should have given relate to the first, third and fifth acts of negligence set forth above.
Those acts may not of themselves, separate and apart from the other facts in the case, have constituted actionable negligence, but they tended to make out the charge of negligence as a whole, and it would not have been proper for the court to exclude those acts from the consideration of the jury. For instance, the failure to construct a railing or board around the back of the ele vator would not of itself have constituted negligence, but it was a fact proper for the consideration of the jury in determining whether or not appellant had adopted proper means of avoiding injury which might result from the uneven surface of the back wall caused by the extended beam. The failure to provide a flange extending from the beam downward to the floor line did not of itself constitute negligence, but it could have been considered by the jury as a proper method to be adopted in avoiding injury. The fact that the elevator was suddenly started after appellee walked in was not of itself negligence, but if there had been more time and deliberation, appellee might have discovered the perilous situation, and it was, therefore, proper for the jury to consider the fact that the light was not turned on and that the elevator was started immediately after he walked in.
There are numerous other assignments of error with respect to the rulings of the court in giving and refusing instructions, but none of them are of sufficient importance to call for discussion, except the one which relates to the sixth instruction, given at the request of appellee, in which the jury were told that in assessing the damages they should take into consideration the compensation to be awarded “with reference to the pecuniary and other losses which plaintiff has sustained,” and which also told the jury that they might consider the “probable increase or diminution” of the earning capacity of appellee. It is argued that it was improper to use the words ‘ ‘ and other losses, ’ ’ as there was no testimony to support a finding that there were losses other than those mentioned in the instructions. It will be observed that these words were used in connection with the word “pecuniary” and surely it cannot be contended that pecuniary losses were all the only ones that appellee sustained. He received a very grievous injury, which resulted in severe and long continued pain and suffering, and also in a certain amount of disfigurement, and these were all matters for the jury to consider.
Again, it is argued that as appellee was shown to be a man of about 72 years of age, there was no probability of increase of his earning capacity,.and that it was error ■for the court to submit that issue to the jury. It is true that the testimony as abstracted shows that appellee was about 72 years of age, but he was still active in his business as a contractor. Appellant refrains from abstracting the testimony as to appellee’s earning capacity and the probability of an increase on account of the conditions of the times, and we must, therefore, assume that there was evidence which has not been abstracted which justified the court in submitting that issue to the jury.
A reversal is sought on the ground that Mr. Williams, one of the witnesses introduced by appellee, made a statement in his testimony to the effect that appellant had, since the injury to appellee, made certain changes in the construction of the elevator so as to obviate the dangers. It is true that Mr. Williams, the witness in question, in responding to' questions propounded him by appellee’s counsel, undertook to state how the defects in the elevator could be cured, and, after describing the manner in which the defects could be corrected, he added that it had been done in that way, meaning that appellant had made the changes since the occurrence of the injury to appellee. Appellant’s counsel at once interposed an objection, and appellee’s counsel responded by calling attention to the fact that the statement of the witness was not responsive to his questions, and that he disclaimed any intention of drawing out that class of testimony. The court then directed the jury not to consider the testimony. Of course, the testimony was incompetent, but we think that prejudice was removed by the court excluding the statement from the consideration of the jury.
Finally, it is contended that there ought to be a reversal on account of the alleged misconduct of appellee’s counsel in interrogating veniremen concerning connections with liability insurance companies. It appears from the record that before the trial commenced counsel for appellee made inquiry of appellant’s counsel, apart from the court and jury, stating that he had reason to believe that the attorney, Mr. McDonough, represented a liability insurance company, and asked him whom he represented in the case, and Mr. McDonough declined to give any information on that subject. In the examination of the veniremen, appellee’s counsel propounded to them the inquiry whether or not they were employed by or were stockholders in any liability insurance ■ company doing business in Fort Smith. It is conceded that appellant was protected to the extent of $5,000 by an insurance policy, but appellant’s counsel declined to give information as to the particular company in which appellant carried its liability insurance. Appellee was entitled, in the examination of veniremen, to ascertain whether or not they were interested in any insurance company which carried insurance for appellant, and the questions propounded did not go beyond the limit of propriety so as to unduly emphasize the fact that appellant was protected wholly or in part by indemnity insurance. There is nothing to indicate that counsel for appellee was not acting in perfect good faith in his inquiry of appellant’s counsel and also in propounding the questions to the veniremen. Counsel stated that he had reason to believe that the attorney for appellant was representing a liability insurance company, and it turned out to be true that such insurance company was directly interested in the result of the trial. There was nothing in the conduct of counsel for appellee to indicate bad faith. The facts of the case bring it within the rule announced by this court in the case of Cooper v. Kelly, 131 Ark. 6.
We find no prejudicial error in the record, and the judgment is, therefore, affirmed. | [
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Smith, J.
This is a suit by an agent to collect commissions for effecting sales of merchandise. The plaintiff recovered judgment, and the defendant has appealed.
The testimony shows that plaintiff took numerous orders for goods in the territory in which he traveled, which were forwarded to and accepted by defendant, and portions of most of these orders were filled, but that the price of the goods sold advanced rapidly and considerably after the orders therefor had been taken and accepted and defendant ceased filling the orders. It was shown that later orders placed at the advance prices were promptly filled.
The suit was defended upon awo grounds; the first being that the goods in question were required to fill Government orders for military purposes; but that defense was submitted under an instruction which told the jury to find for the defendant, if the failure to fill orders was due to that fact, so that that defense has passed out of the case..
The second defense, and the one which presents the controlling question, is that defendant became liable for the agent’s commissions only when it had accepted orders and had shipped out the goods filling the orders.
The contract out of which this controversy arises was an oral one, yet there is no substantial difference i'n the statement of its terms by the parties thereto. The agent was to receive 6 per cent, commission on all orders booked, accepted and shipped which were received from him, and 3 per cent, when mail orders were received from his territory.
Declaring the law applicable to a contract of that character, the court gave the following instruction: “No. 1. You are told that if you find from a preponderance of the evidence that the plaintiff worked as salesman for the defendant, under an agreement that he should receive six per cent, commission on all goods sold by him, when the orders were accepted by the defendant, and shipped by them, and that the defendant accepted the orders, then they had no right to arbitrarily refuse to ship the goods and if you believe that they refused to ship the goods for the reason that the price advanced, and in order to sell the goods at a higher price, and that they did have the goods to fill such accepted orders and did not fill the orders taken by plaintiff and accepted by them, because they could and did sell them for a higher price, your verdict should be for the plaintiff for 6 per cent, commission on such accepted orders not filled for the reason stated. ’ ’
This instruction was given over defendant’s objection, and instructions asked by defendant were refused which declared the law to be that defendant had the right to reject any orders, or parts thereof, up to the time the goods were to have been sent and that defendant was liable only for the commissions on goods which were shipped.
The testimony is undisputed that the orders were accepted, and, on conflicting testimony, the jury had found against defendant’s explanation of its failure to fill them. Certain orders transmitted by plaintiff were turned down by defendant’s credit department, and no commission is claimed on these orders.
We think a fair construction of this contract is that defendant had no right to arbitrarily refuse to fill plaintiff’s orders, and that it was arbitrary to do so because of an advance in the price over that at which he had been authorized to sell and had sold. The provision of the contract that the commission should be earned, upon the shipment of the goods, determined when the commission had been earned, and it must necessarily be assumed, in the absence of proof to the contrary, that the parties contemplated shipments would be made, in the usual and ordinary course of business, unless some valid and sufficient reason appeared for not doing so, such as the rejection of the order by defendant’s credit department.
The testimony is that plaintiff devoted his whole time to his agency, and incurred considerable personal expense in traveling over the territory in which he took the orders, for all of which he expected compensation out of his commissions. So that, in the absence of a stipulation that defendant might accept or reject such orders as it pleased, for any reason satisfactory to itself, we must approve the construction placed upon the contract in the instruction set out above to the effect that defendant had no right to arbitrarily refuse to ship the goods, and that it was arbitrary to do so because of the advance in price.
In the case of Taylor v. Enoch Morgan’s Sons’ Co., 26 N. E. 314, the Court of Appeals of New York, in an opinion by Haight, J., had occasion to construe a contract in which the agent’s commission was to be paid “upon all orders accepted from bona fide purchasers.” The contention was there made that the principal became liable to the agent for the commission only upon such orders as it accepted, and that it would not be liable for commissions on orders which, for reasons satisfactory to itself, it had declined to fill. In disposing of that contention it was there said: “We incline to the view that it was the duty of the defendant to accept all orders presented by the plaintiff from bona fide purchasers which were made in accordance with the provisions of the contract, and that they did not have the right, without cause, to arbitrarily refuse to accept such orders. Such a construction of the contract would require the plaintiff to travel over the territory mentioned at his own expense six times a year, with a right on the part of the defendant to reject every order presented by him, and to thus deprive him of any commissions.” To the same effect, see also, Wolff v. Sacks, 168 S. W. 641; Abel v. Nelson, 104 N. Y. Supp. 362; Stone v. Argersinger, 53 N. Y. Supp. 63, 65; Jacquin v. Boutard, 35 N. Y. Supp. 496, 500; Madden v. Equitable Life Assur. Soc. of the U. S., 32 N. Y. Supp. 752, 756; In re Ladue Tate Mfg. Co., 135 Fed. 910, 911; Castleman v. Lewis, 183 S. W. 1182.
Judgment affirmed. | [
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Smith, J.
This suit was brought to enjoin the construction of the road authorized by Act No. 689 of the Session Acts of 1919, and this appeal is from a decree of the chancery court dismissing the complaint filed for that purpose as being without equity.
It is first contended that the bill was not presented to and approved by the Governor within the time limited by the Constitution. But the decision of that question is controlled by the opinion of this court in the case of Rice v. Lonoke-Cabot Road Imp. Dist. No. 11 of Lonoke County, post p. 454, in which case the decision is adverse to appellant’s contention.
Other attacks against the act are directed to section 2 of the act, which reads as follows:
“Section 2. Said district is hereby organized for the purpose of building a road, beginning at Calmer at an intersection with the Warren and Pine Bluff road; thence in a general westerly and northwesterly direction to Rison and on and along such streets in said town of Rison as the commissioners may select.
“The improvement to be made by said district are to be made on route designated in this act, or substantially along this route, the nature of the improvements and any changes in the line of said road to be approved by the county court of Cleveland County.
“Said road to be constructed of material selected by the commissioners and approved by the county court. ’ ’
It is insisted that the act is void because it does not sufficiently designate the road to be improved, that it would be possible to build a road answering the designation contained in the act, a considerable portion of which would lie without the boundaries of the district as defined in section 3 of the act; that the act infringes upon the jurisdiction of the county court by authorizing the construction of new road; that the act authorizes the commissioners to improve any street, or all the streets, in the town of Rison, and, when so construed, an improvement is authorized which is too diverse to be constructed as a single district; and, finally, that the act is void for the reason that it deprives the officials of the town of Rison of the control of their own streets, and authorizes their improvement without requiring the consent of a majority of the property owners to be affected, in violation of article 19, section 27 of the Constitution.
It is recited in the act that “Said district is hereby organized for the purpose of building a road, beginning at Calmer at an intersection with the Warren and Pine Bluff road, thence in a general westerly and northwesterly direction to Rison. ’ ’ And it is conceded that there is an old established road running practically as- described in the act. It is said, however, that the act does not require the improvement of this road, and that authority is conferred to improve a new and different one, and that if the road were to run south of west forty-four degrees for six miles, after leaving Calmer, it would then be without the district, and that it might then run northwest, or practically so, into Rison, leaving a large portion of the road without the district.
These fears appear, however, to be groundless. A survey of the road has been filed along with the plans of the district, and has been approved by the county court. It does appear that some changes in the existing road are made; but these were made for the purpose of shortening the road and otherwise improving it; but this action required the precedent approval of the county court, and, therefore, as we have frequently recently de cided, there is no invasion of, or infringement upon, the jurisdiction of the county' court. Nor was there any legislative intent to authorize or require this district to' construct and build a road lying without its boundaries.
We think the act does not authorize the improvement of all the streets of the town of Bison, or such portions of them generally as the commissioners may elect to improve, but that it authorizes the improvement only of such street or streets as supply a link in the road as it runs from the point selected., as its terminus in Bison. The language of the act is “on and along such streets in said town of Bison as the commissioners may select.” We think this language means a projection or continuation of the road along such street or streets in the town of Bison as is necessary to reach the county courthouse, the point selected as the terminus, and was not intended to confer, and does not confer, upon the commissioners power to improve the streets of that town generally.
What we have said is not in conflict with our opinion in the recent case of Payne v. Road Improvement District No. 1 of Marion County, 141 Ark. 288. There the act provided that the district should “build, improve, widen, straighten and repair all public highways within the boundaries of said district which have heretofore been dedicated as a public highway by the county court of Marion County, or by the town council of the incorporated towns of Bush, Yellville, and Summit * * *.”
Section 4 of the act there construed provided that “The said Board of Commissioners shall have and they are vested with power and authority, and it is hereby made their duty, to build, construct, maintain and repair said roads within said district and all public highways therein as they deem necessary and proper, as herein contemplated, and in doing .so shall expend all necessary sums of money authorized to be levied and collected under authority of this act, and qs herein provided.”
We there said that section 4 made it the duty of the commissioners “to build, construct, maintain and repair said roads within said district, and all public highways therein as they, deem necessary and proper, as herein contemplated,” and that the framers of the statute meant to include the public streets of the three incorporated towns mentioned. Having reached the conclusion there announced, that the act embraced all the streets and alleys of the three towns mentioned, we said the act was invalid, because it joined together as a single improvement the improvement of all the streets and alleys of three different incorporated towns in the same county, but widely separated from each other. But here only the streets in the town of Rison are embraced, and such streets only in that town are to be improved as are necessary to make a continuous, unbroken highway to the courthouse.
That case does, however, answer the argument that the act is void because it deprives the officials of the town of Rison of the control of their streets, for we there said: “We do not mean to hold that the inclusion of that portion of the streets of the towns which formed a part of the general highway to be improved would be invalid. Our previous decisions on that subject lead to the contrary. Nall v. Kelley, 120 Ark. 277; Conway v. Miller County Highway & Bridge Dist., 125 Ark. 325; Bennett v. Johnson, 130 Ark. 507.”
In answer to appellant’s contention that the act violates section 27, article 19 of the Constitution, in that it does not require the consent of the property owners of the town of Rison for the improvement of the streets of that town, it may be said that the cases of Bennett v. Johnson, and Nall v. Kelley, supra (as well as the cases there cited), decide that the section of the Constitution mentioned has no application to districts covering territory not wholly within the limits of a municipality.
Appellant finally complains that h(is assessments will exceed his benefits. But that question is not before us for decision in this cause, as appellant will have his day in court upon that issue when his assessments are made by the assessors. Section 10 of the act contains a provision for a hearing on that issue. Bush v. Delta Road Imp. Dist. of Lee County, 141 Ark. 247.
No error appearing, the decree is affirmed. | [
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McCulloch, C. J.
Appellant was indicted by the grand jury of "Washington County for the offense of selling whiskey, alleged to have been committed in that county on July 17, 1918, and the proof adduced by the State tended to show that appellant sold twenty-four pints of whiskey to John Barnett at the town of Winslow, in Washington County, in the evening of the day mentioned in the indictment.
The State relied on the testimony of Barnett and his son, Joe, who both testified that they were present when appellant sold and delivered the whiskey. Appellant was, áecording to the testimony, driving through the country in an automobile and stopped on the street at Winslow and took the whiskey out of his automobile and sold and delivered it kv Barnett.
Appellant filed a motion for continuance for the purpose of procuring the attendance of a witness named Budd, who it was alleged in the motion would testify, if present, that Joe Barnett told him that appellant was not the man that sold the liquor to his father at Wins-low. There was no statement in the motion as to where the absent witness was at that time, nor that the attendance of the witness could be procured at the next term of the court.
The court was correct in refusing to postpone the trial under those circumstances.
The next ground urged for reversal of the judgment is that the court erred in refusing to permit appellant to prove by witness, J. H. Smith, a justice of the peace, that Barnett had signed and sworn to a statement admitting that he had testified falsely with respect to the sale of whiskey by appellant. The proper foundation was laid for the contradiction, but the record does not show what the answer of the witness would have been if the court had not refused to allow the question to be asked. The record merely shows that appellant’s counsel propounded to Smith the question whether or not Barnett had come before Him and signed the written statement as aforesaid. In order to show that the error was prejudicial, it is essential to disclose in the record what the testimony of the witness on that subject would have been if permitted to answer.
The court, over the objection of appellant, asked appellant several questions during the progress of the latter’s cross-examination by the prosecuting attorney, and this is assigned as error. It does not appear from the record that the conduct of the court in propounding questions had any tendency to carry to the minds of the jury the court’s view as to appellant’s guilt or innocence, and there was no error merely in the fact that the court propounded the questions to the accused, or other witness in the case, for the purpose of eliciting all of the facts of the case.
In the first instruction given by the court the question was submitted of appellant’s guilt or innocence of the charge embraced in the indictment of selling whiskey “within three years before the indictment was filed.” The contention is that, as the trial of the case was less than three years after the enactment of the statute making the sale of intoxicants a felony, it was error to allow the jury to consider sales made at any time within three years. The answer to this is that there could not have possibly been any prejudice resulting from this statement of the court for the reason that the testimony was directed to a particular sale made on a certain date within three years before the finding of the indictment, and after the enactment of the statute.
The record recites that the jury, after considering the case for a time, returned into court and asked “if the jury might consider, as a circumstance of defendant’s guilt, his conviction for transporting liquor through Benton County;” that appellant was present in court in person and by attorney, and expressly waived a reply by the court in writing and consented that the court might answer the question orally; that “thereupon the court read to the jury the written instructions and added that they might consider all of the facts and circumstances admitted in evidence by the court, they being the sole judges of the weight to be attached thereto; that it was permis* sible to show what defendant’s occupation and history had been, and his conviction, if any was shown by the proof, as affecting his credibility as a witness. ’ ’ The record further recites that the defendant excepted on the ground that the court’s statement constituted an erroneous. statement of the law.
It is argued now that there was no testimony tending to show a conviction for the transportation of liquor through 'Benton County, and that the court ought to have answered the inquiry of the jury in the negative without further comment. The difficulty about this position, assumed now by appellant, is that his counsel failed to ask the court at that time to answer the question in the negative and thereby exclude that question from the consideration of the jury. The charge given by the court at that time was unobjectionable as a statement of the law, and there was no error in making it, and if it was not responsive to the inquiry made by the jury and a concise and correct answer to the question was desired by' appellant, such a request ought to have been made to the court at that time.
The last contention is that the court ought to have granted a new trial on appellant’s showing in his motion of newly discovered evidence. In the progress of the trial appellant adduced testimony tending to impeach the character of Barnett, and also to prove contradictory statements of Barnett with respect to the alleged sale of liquor by appellant to him. In the motion for new trial appellant set forth the affidavit of three persons who resided in Fort Smith, and who stated that they had heard Barnett say in the presence of several persons that appellant was not the man, named Lee Hayes, who sold him the liquor. This testimony was merely cumulative, and was also for the sole purpose of impeaching the credibility of Barnett, and it is a settled practice, approved by this court, not to grant new trials for the purpose of introducing testimony of that kind.
Judgment affirmed. | [
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McCulloch, C. J.
The decree appealed from compels the specific performance of a written contract for the sale of a forty-acre tract of land in Columbia County. The contract was entered into in the year 1902 between R. L. Emerson, the ancestor of appellants, who was the owner of the land, and J. M. Marble, the husband and father of appellees. The price specified in the contract was the sum of $50, payable in three installments, evidenced by promissory notes bearing interest at the rate of ten per centum per annum from date until paid. The contract provided in substance that upon failure of Marble to make either of the payments when due all previous payments should be forfeited to Emerson, and that “the relation of landlord and tenant shall arise between the parties hereto for one year from January 1 immediately preceding the date of default.”
J. M. Marble took possession of the land under the contract, and built a four-room log house thereon, and occupied the land as a home until his death, which occurred in the year 1913. Marble left a widow and three children, two of whom are adults and one is an infant. They are the appellees in this case. Mr. Emerson died March 23, 1910, leaving his two daughters, one of whom is the appellant, Mrs. Sorrels. J. M. Marble made four different payments to Mr. Emerson on the purchase price of the land, which payments were indorsed as credits on the copy of the contract which Marble held in his possession. The payments were as follows: $7 January 8, 1903; $8 April 5, 1906; $2 April 1, 1907; and $32, date not stated. Marble also paid the taxes on the land from the date of the contract up to-the time of his death, and his widow paid taxes after her husband’s death up to and including the year 1917.
Appellant, Mrs. Sorrels, took charge of her father’s business, which was extensive, after the latter’s death, and undertook to collect the outstanding notes and accounts. She found on her father’s books the account against Marble and mailed a statement for the amount of balance due the same as other accounts, but she testified that she did not know at that time that it represented the purchase price of the land. She did not know anything about the tract of land until some time during the year 1915, when application was made to her by another person to buy it. She then sent her husband out to see appellees about the land. Later she found among her father’s papers the Marble notes and the contract with an indorsement on the contract in the handwriting of Mr. Emerson showing that it had been canceled. She destroyed the notes, but preserved the contract; After the discovery of the above recited facts Mrs. Sorrels proposed to the widow of J. M. Marble a new contract for the sale of the land at a price of $800, payable $100 cash and the bal anee in installments. This proposal seems to have been considered to some extent by the widow, but the offer was finally declined, and appellants brought this suit for possession.
Appellees filed a cross-complaint setting up the contract and possession thereunder, and prayed for specific performance. The court found that there was a balance of $40.08 due on the price of the land under the contract with Marble, including interest to date, and decreed performance of the contract on payment of this amount, which appellees offered to pay.
The contract was not strictly performed by Marble or appellees as successors to his rights, but we are of the opinion that there was a waiver of the forfeiture by Mr. Emerson in permitting Marble to remain in possession and make payments on the purchase price and pay the taxes. Hanson v. Brown, 139 Ark. 60. This waiver continued in force the rights of appellees until the discovery by Mrs. Sorrels of the right of the Emerson heirs to declare a forfeiture and demand possession. If appellants had at that time insisted on performance of the contract they could have declared a forfeiture upon further default, but, instead of standing upon the terms of the contract, they insisted upon a new contract of sale at a considerably higher price. In other words, they gave appellees no opportunity at that time to perform the contract. Appellees rejected the new offer, and this suit was then commenced.
The chancellor was, therefore, correct in holding that the prior defaults in the purchase price had been waived, and that appellees were entitled to a deed on the payment of the balance of the purchase price.
Decree affirmed. | [
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McCulloch, C. J.
Appellant is a foreign corporation engaged in the publication ;of law books, and entered into a written contract with appellee for the sale to the latter of a current set of law reports at a stipulated price. The contract of sale covered 28 volumes of the published reports at the price of $5 per volume and two digests for $7^, and it was stipulated that the payments were to be made, $7 cash, and “the balance in installments of $10 each, to be evidenced by my notes payable every two months from date thereof. ’ ’ The contract also contained a subscription for the -uiipublished volumes. Appellee executed notes in accordance with the contract, and later received four additional volumes of the reports as the same were published, and made payments in the aggregate of $62, leaving a balance of $117, as evidenced by nine of the notes and an open account for $27.
Appellant instituted this action against appellee in the circuit court- of Pope County, exhibiting the original contract and the account and the notes. Appellee entered a plea to the jurisdiction of the court on the ground that the suit was on the notes and the additional account, and was not within the jurisdiction of the court. The circuit court sustained the plea and dismissed the action.
The suit was necessarily on the notes and the open account for $27, all of which constituted separate causes of action within the exclusive jurisdiction of justices of the peace. The facts of the case are identical with the facts in American Soda Fountain Co. v. Battle, 85 Ark. 213, and the decision in that case is conclusive of the present case.
Judgment affirmed. | [
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Smith, J.
The parties to this litigation formed a partnership to operate a dairy business, concerning the terms and duration of which they disagree. At the suit of appellee it was dissolved, and the decree of dissolution indicates that the court below accepted appellee’s version as to the points in dispute, as the court ordered the distribution of the partnership property to the partners who had contributed it, whereas appellant contended that under the partnership agreement he was given a present undivided half interest in all the partnership property.
We would not disturb the finding as being contrary to the preponderance of the evidence (and would, therefore, affirm the decree), but we think the court erroneously found that the partnership was one which either of 'the parties had the right to dissolve at pleasure.
, Upon that issue appellant testified that he was employed at the State Agricultural School at Jonesboro— of which he was a graduate in dairying — -at a salary of $75 per month, with room and board. That the partnership became effective March 1,1919, at which time it was known that the business was one which would have to be established and developed and could not be profitable until that had been done, and it was, therefore, agreed that the partnership should be for a long period of time and until the purposes of the partnership had been effectuated. That appellee agreed to deliver, on land owned by him, on which feed crops were to be cultivated for use in connection with the dairy, eight cows and three calves, in which appellant was to have an immediate, present half interest, and that as the demand for milk and dairy products increased appellee was to furnish additional milk cows for the partnership, as needed, to the extent of twenty fresh cows, and that appellant should have a half interest in all the additional cows furnished by appellee, and their increase, and that appellee was to furnish a bam, gas engine to pump water, and all necessary dairy equipment, together with chickens, a bull and hogs, in all of which he was to have a half interest when furnished, and that, being a single man, he took his father and his father’s family into the business to assist him m conducting it, and that he had agreed to pay them one-half of his profit for this service. That he moved on the farm and proceeded to operate the dairy for a period of three months, during which time a net profit of $55 for each partner was earned, when appellee became dissatisfied, and, without cause, proceeded to dissolve the partnership. Appellant is corroborated by his father in all essential respects. In fact, the father testified that the preliminary negotiations leading to the formation of the partnership were conducted by him, on behalf of his son.
Appellee testified that the partnership was at will, although he admitted that the parties thereto had agreed that the business was one which could become profitable only by development, and that he had agreed that if it continued for three years appellant should have a half interest in the property which he (appellee) had furnished to make the business a going concern.
We think the court below was in error in holding that the partnership was one at will, determinable at the pleasure of either party. Upon the contrary, we think it was one for a period of as much'as three years, unless, for sufficient cause, .it was sooner dissolved. According to appellee’s version — which the court below accepted, and which we also accept — appellant was to acquire no interest in this business until it had continued as much as three years. It can not, therefore, be assumed that it was contemplated that the partnership should be terminated before appellant had had the opportunity to acquire that interest, except for sufficient cause subsequently developed, or the mutual consent of the parties. Howell v. Harvey, 5 Ark. 270; Zimmerman v. Harding, 227 U. S. 489; 20 R. C. L., § 178 of the article on partriership.
The question of the existence of sufficient cause for the dissolution of the partnership does not appear to have been fully developed, as appellee tried it in the court below upon the theory — which the court accepted — that it was a partnership at will.
The cause will, therefore, be reversed with leave to the parties, if they so elect, to take further testimony upon that issue. | [
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McCulloch, C. J.
This ¡is an action instituted by appellee against appellant on an open account in the sum of $72.48 for a lot of manufactured tobacco, sold and delivered by appellee to appellant under a written contract or order. The case originated before a justice of the peace of White County, and there was no written answer, but appellant defended on the ground that the tobacco was worthless, except a very small quantity of it which he paid for, and that he complied with an agreement made with appellee to pay for the part of the tobacco which he used and sold. - The court directed a verdict in appellee’s favor on the ground that appellant had not notified appellee of the worthless condition of the tobacco or offered to return the same within a reasonable time.
The tobacco was shipped to appellant from appellee’s place of business in Lynchburg, Virginia, on April 2, 1915, and the invoice was, according to the contract, payable four months after date of shipment. The testimony adduced by appellant tended to establish the fact that the tobacco when shipped was worthless and wholly unfit for. use or sale, except a small quantity aggregating in price $12.50. It was full of bugs and holes cut by the bugs and with web deposited by the bugs. The testimony further shows that appellant spoke to Mr. Steptoe, the traveling salesman who negotiated this sale for appellee, and informed him of the condition of the tobacco, and that Mr. Steptoe told him not to pay for it until there was an adjustment of the matter. Mr. Steptoe was introduced as a witness and corroborates appellant’s testimony. On August 25, 1915, appellant wrote to appellee, informing the latter of the worthless condition of the tobacco and stating that appellant had been waiting for Mr. Steptoe to come around on his regular trip in order to take the matter up with him for adjustment. It up-pears from the testimony that there was other correspondence between the parties which has been,lost, but there was introduced in evidence a letter from appellee to Steptoe directing him to go to see appellant and get the account adjusted 'by allowing appellant to pay for the goods used and sold and to return the balance. Step-toe went to see appellant, and appellant testifies that he showed the tobacco to Steptoe and that it was agreed between them that it was worthless, and that it would be an unnecessary expense to appellee to return it. The testimony adduced by appellee tended to show that the tobacco was in good condition when shipped.
In the sale of manufactured goods, where there is no opportunity for inspection by the purchaser, there is an implied warranty that the articles are merchantable and reasonably fit for the purpose for which they were intended. Weed v. Dyer, 53 Ark. 155; Bunch v. Weil, 72 Ark. 343; Main v. Dearing, 73 Ark. 470.
Where there is a breach of warranty, the purchaser may rescind the contract, or may affirm' it and keep the property, and when sued for the price- set up the broken warranty 'by way of recoupment. A failure to notify the vendor of the breach of warranty will not defeat the vendee’s right of recoupment, for, as said by this court in the case of Wheat v. Dotson, 12 Ark. 699, the right of recoupment “did not rest on the ground that the contract had been rescinded, and that a return or an offer to return the property was not a prerequisite to the admission of the defense.” Weed v. Dyer, supra.
Where there is a breach of warranty in order to rescind there must be a return of the property or an offer to return it within a reasonable time; but where the property is entirely worthless and wholly unfit for the intended use, an offer to return the property in order to rescind is not essential. 35 Cyc. 149; 24 R. C. L., p. 293.
Appellee relies on a clause in the written order and on the invoice requiring notice within ten days of any “goods short or other claim.” This requirement was, according to the testimony, waived by negotiations entered into by appellee with appellant for the adjustment of the disputed claim. There was an issue of fact for the determination of the jury as to whether or not the tobacco was worthless as claimed by appellant, and a verdict in appellant’s favor on that issue would be determinative of the defense to the action. There was also a question of fact to be submitted to the jury whether or not there was a settlement of the disputed claim between appellant and Mr. Steptoe, appellee’s agent, whereby appellant was to pay for the quantity of tobacco he had sold without returning the portion that was worthless. If that issue had been determined in appellant’s favor, it would be a complete defense. Appellee wrote to its agent, Mr. Steptoe, directing him to go to see appellant and get him to pay for the tobacco he had sold and to return the balance which he claimed was unfit for use. It was, however, within the apparent scope of the agent’s authority to settle the claim on any terms, and if, as testified by appellant, Steptoe agreed with appellant that the tobacco was worthless, it was unnecessary to return it.
In either case the directed verdict was improper, and the judgment is reversed and the cause remanded for a new trial. | [
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McCulloch, C. J.
This is an action instituted by "appellee in the chancery court of Pike County to cancel a lease executed by them to appellants of certain land for the purpose of testing the dirt for diamonds and for developing a diamond mine thereon. The ground set forth in the complaint for the cancellation of the contract, is that appellants have ceased operations under the contract and have abandoned it. The action is a renewal of former litigation between the parties with reference to the same subject-matter, viz., the cancellation of the lease., In the last of the former suits between the parties the chancery court denied relief to appellees and on appeal this court affirmed the decree. Mauney v. Millar, 134 Ark. 15. The facts are set forth in detail in ‘the former opinion and reference thereto is made for rehearsal of the facts contained in the present case. In the opinion we said: “The right of action in this case, if there is one, extends back no farther than the last of the adjudications thereof and must be tested solely by proof tending to show a breach of the contract since that time. After consideration of the testimony we have reached the conclusion that there is not a preponderance against the finding of the chancellor. The contract contains no express provision for forfeiture of the lease, and counsel for defendants invoke the estab lished rule that a tenancy can not be terminated for breach of covenant by the lessee where there is no express provision for a forfeiture, and that a court of equity will not lend its aid to declare a forfeiture on account of a breach of the contract.” * * * “There is another principle, however, equally well established that where one party to a contract has completely abandoned performance, a court of equity will give relief by canceling the contract, and that principle is applicable to a contract of this kind where the sole benefit is to result from continued performance, such as one to develop a mine to pay royalty or divide the proceeds. ’ ’
In addition to the facts set forth in the former opinion, the following clauses of the contract should be set forth in order to completely understand the merits of the present controversy:
“Seventh. In the event the lessee, his associates and assigns, become fully convinced that diamonds or other valuable minerals do not exist in the said leased land in commercially paying quantities, and that further operations for this reason would not be warranted, then the said lessee and assigns may, at their option, surrender and cancel this lease without further obligation of lessee, his.associates and assigns. And upon such cancellation by the lessee he, his associates and assigns, shall have the right to remove any and all buildings and equipment of whatever nature, placed on or in the properties leased hereunder,- at the expense and cost of said lessee, his associates and assigns, within a reasonable time. It is further stipulated and agreed that the said lessee, his associates and assigns, shall pay all- taxes lawfully accruing against the land hereby leased from time to time during the life and continuation of this lease, except the taxes for the year 1911.”
“Eighth. The lessees shall in no event cease work for a longer period than three months continuously, unless a necessity therefor should arise by the act of God, or from contingencies beyond the control of the lessees, or from physical or other conditions which are not the fault of the lessees, and which could not reasonably be guarded against. But this clause of this lease shall not, operate or be construed to release the lessees from washing and treating for diamonds as much as 10,000 loads of dirt every year, and as much more as can reasonably be done.”
There was a supplemental contract between the parties with reference to the same matter dated May 6, 1912, which was about a month after the execution of the original contract. The supplemental contract was not pertinent to the issues involved in the former case, but it is important to consider the same in the present case. It reads as follows (omitting caption and conclusion):
“As supplemental to the lease contract heretofore executed by M. M. Mauney and wife to Howard A. Millar and associates, it is agreed by and between said parties as follows: When in the course of the mining operations contemplated by the lessee and his associates, it becomes necessary to make a change in the method of operating to the underground system, the lessee, his associates and assigns may take such time as is actually necessary to make such change, without forfeiting their rights as lessees. But such change, when begun, must be completed as soon as it can reasonably be effected. The said M. M. Mauney and Bettie Mauney, his wife, in consideration of the benefits of said lease, hereby let and leased to the said Howard A. Millar, his associates and assigns, the tract of land designated upon the plat of the town of Kimberly, as ‘Miller Diamond Washing Plant,’ which plant is recorded in the office of the recorder of Pike County, Arkansas; said parcel of land being east of Garnet street and south of Gosnell street, in said town of Kimberly; also all of the land east of said tract and south of the public road or Garnet street, lying west of Prairie Creek.
“The said lessors also agree with the said Howard A. Millar, his associates and assigns, to lease to them from time to time such land as they may need for flooring purposes in the east half of the northwest quarter of the southeast quarter of section 20, township 8 south, range 25 west, and that part of the northeast quarter of the southeast quarter of section 20, township 18 south, range 25 west, lying west of Prairie Creek, at an annual rental, of $6 per acre. And the said lessees are to notify the lessors at least one year in advance of the amount of land they will need for flooring purposes in order that the lessors may use or lease to others such of said land as is not needed by the lessees, for agricultural or other purposes. But the rights given by this supplemental agreement are not to extend beyond the life of said lease.”
Appellants in their answer denied each of the allegations of the complaint with respect to their acts constituting an abandonment of the contract, and alleged that they had been proceeding in good faith in the performance of the contract, notwithstanding the conduct of appellees in attempting to obstruct them in various, ways in the performance of the contract. Appellants alleged that appellees had harassed them with numerous lawsuits and with criminal prosecutions, and in various other ways unnecessary to mention in this opinion. They further allege that they had been hindered by the wartime conditions from prosecuting the work of operating the mine by reason of the fact that labor was scarce, that diamond mining had been declared among the nonessentials by the Government authorities, that many of the employees had been drafted into the army, and that appellants themselves had been drafted into war work. They also alleged that there were no facilities in this country for cutting and polishing small diamonds and that war conditions prevented appellants from having that work done abroad. They allege that, notwithstanding these hindrances, they had washed the mim'rrmm amount of dirt as specified in the contract up to the commencement of this action. It was also alleged in the am swer that it had been determined in December, 1917, that it would be necessary to resort to the underground system of mining as provided for in the supplemental contract, and that war conditions had prevented the prepara tion for the change, but that appellants had now “located the place for the constructing of the shaft, and that it would be necessary probably to go to a depth of 500 feet to determine whether or not the diamond bearing dirt is offset by the nondiamond-bearing rock, and that unless it does exist to a depth of 500 feet there is not sufficient quantity of diamond-bearing dirt to justify the expenditure of the sums necessary to commercially mine the land,” and that “it has been found advisable to construct this shaft off of the Mauney property, and that before they can go to this expense it is necessary that the court construe the lease as to whether or not they have the right to construct this shaft off the Mauney property.” The answer contained a cross-complaint, the prayer of which was that the court construe the lease “ as to whether they will be required to wash 10,000 loads of dirt before a new plant can be erected, and decide whether they can construct the diamond mine shaft off the Mauney property. ’ ’
On the trial of the cause the chancellor decided that there had been an abandonment of the contract by appellants, and entered a decree canceling the contract. The decision of this court in the former case is conclusive of the fact that there had been no abandonment of the contract up to this time. This suit was begun a short time after the decision in this court, and, as stated in the former opinion, the right of action “extends back no farther than the last of the adjudications ’ ’ between the parties.
There is a conflict in the testimony as to whether or not appellants had washed the minimum quantity of dirt specified in the contract, viz., 10,000 loads per annum; but we are of the opinion, that, according to the preponderating weight of the evidence, appellants had complied with the contract to that extent. The testimony on this subject introduced by appellee is fragmentary and indefinite, whilst that introduced by appellants is direct and' positive. Appellants kept an accurate account of the amount of dirt washed from the Mauney mine, and it ex ceeds the minimum' amount specified in the contract. We think the proof does not show that there was an abandonment of the contract, nor that there was merely a desultory attempt to comply with its terms sufficiently to escape the charge of abandonment.
We are of the opinion that the evidence shows that appellants were attempting in good faith to perform the contract the best they could in the untoward circumstances which surrounded the venture. We held in the former opinion that, there being no forfeiture clause in the lease, nothing short of complete abandonment of performance of the contract would justify a court of equity in granting relief by canceling the contract.
The question introduced in the present litigation concerning the change in methods of mining from surface, mining to the underground system is one which was not involved in the former litigation. It appears from the testimony that during the progress of mining operations it was discovered that most of the washable ground on, the small five-acre tract constituting the Mauney mine was covered with non-diamond bearing rock, which obstructed access to the dirt and that on this account it was necessary to change to what is termed in the supplemental contract as the underground system, by tunneling under this rock, which was of uncertain thickness, possibly 500 feet. Tlie engineers decided that it was necessary to sink a shaft or slope under the rock, and that on account of proper drainage it was necessary to start the shaft or slope just off this property on the adjoining property rather than on the leased premises. These facts are set up in the answer and cross-complaint of appellants, and are established by the testimony which they introduced. These facts are not controverted by appellees. Appellants present these facts as one of the answers to the charge against them of having abandoned operations, and also ask for the construction of the contract so that they may know whether or not they are within their rights in starting the shaft off of the leased premises. It is proper, therefore, for us to consider this feature of the contract and to construe it in order to ascertain whether or not the appellants are proceeding /by a method not authorized by the contract. The testimony is not elaborated so as to show whether or not the particular spot selected as the location for starting the downward shaft is well chosen, or that it is necessarily the only place for it, nor even is it shown that it is absolutely essential that a shaft be started off of the leased premises, though the testimony is that it was found necessary by the engineers to do so, and that this place was\selected as the proper location. If, as a matter of fact, it is unnecessary tó go off the leased premises to start the shaft, or if the selection of the particular location is such as to operate to the disadvantage of the mining operations, appellees would have the right to interfere, but the question is presented as a matter of defense, and we deem it proper to decide it, whether or not under the contract appellants have the right to start the shaft off of the leased premises if it is found necessary to do so in order to properly reach the washable dirt under the rock on the leased premises.
We are of the opinion that' they have that right under the contract, for there is nothing in the letter of the contract which forbids it. The controlling feature of the contract is to test and develop a mine and to operate it for a period of fifty years for.the mutual profit of the lessors and the lessees. The supplemental contract grants to appellants unqualifiedly the right to change to the underground system. If it was intended to restrict the rights of appellants in the selection of the method of operating the underground system, it should have been made to appear by the letter of the contract, or by fair and necessary implication. The contract contains no expression to that effect, nor can it be implied from the language of the contract. The rule is laid down in an encyclopedia that “where a coal lease simply provides that the lessor has leased all the coal underlying his land and does not expressly require the sinking of shafts, the lessee is not bound to open the mine by means of a shaft on the lessor’s land, but may do so by means of a shaft and drift from other land, provided he uses reasonable diligence.” 27 Cyc. 707. The following authorities cited, support the text: King v. Edwards, 32 Ill. App. 558; Van Meter v. Chicago & Van Meter Coal Mining Co., 88 Ia. 92; Lewis v. Fotheringill, L. R. 5 Ch. 103; 17 Eng. R. C. 766; James v. Cochrane, 7 Exch. 170; Wheatley v. Westminster Brymbo Coal & Coke Co., 22 L. T. R. (N. S.), 7.
It is important to consider that feature of the contract which provides that when the lessees “become fully convinced that diamonds or other valuable minerals do not exist in the said leased land in commercially paying quantities, and that further operations for this reason would not be warranted, then the said lessee and assigns may, at their option, surrender and cancel this lease without further obligation.” They are required under the contract to operate the mine in good faith, but they are not compelled to do so when in good faith it is determined that the mine can not be successfully operated. This gives them the right to determine the means and method of operating, and, as before stated, there is nothing in the contract which limits their underground method to sinking the shaft on the leased land itself.
Our conclusion is, therefore, that they are within their rights when it is shown that it is reasonably necessary to start the shaft off of the leased land, and that the selection of such a location does not constitute a departure from the terms of the contract so as to be treated as an abandonment.
The conclusion of the chancellor on the question of abandonment is, we think, against the preponderance of the testimony, and the decree is therefore reversed, and the cause is remanded with directions to dismiss the complaint for want of equity. | [
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Humphreys, J.
Appellant instituted suit against appellee in the Columbia Chancery Court on the 28th day of March, 1918, to enjoin appellee from disposing of four bonds, numbers 6, 7, 8 and 9, issued by appellant, and to cancel them, together with a deed of trust given by appellant to secure them. The gist of the allegations of the complaint is that, while said bonds and deed of trust constitute an apparent obligation in the sum of $2,000 against appellant district, they were issued as four bonds in the sum of $500 each, of a series numbered from 1 to 22, inclusive, to raise money to build and equip a schoolhouse for said district, by the directors of said district without authority and contrary to law; that no money was ever advanced to appellant upon said bonds or deed of trust.
Appellee answered, denying that the bonds, were issued without authority in law, and alleging that it was the bona fide holder of said bonds and trust deed for a valuable consideration.
The cause was submitted upon the' pleadings, evidence and exhibits, upon which a decree was rendered dismissing the complaint for want of equity, from which an appeal has been duly prosecuted to this court.
The facts are practically undisputed. In August, 1916, appellant district was organized under Act 321, Acts of the General Assembly of 1909. The directors of said district, through its president and secretary, issued a series of bonds, numbered 1 to 22, inclusive, of denominations of $500 each, bearing interest at the rate of six per cent, per annum, payable to bearer, and, to secure said bond issue, executed a trust deed upon the real estate owned by said school district for the purpose of raising money to erect and equip a school building upon the property mortgaged. The bonds and deed of trust bore date of October 15,1916. The deed of trust was placed of record in the county of Columbia and the bonds were delivered, with interest coupons attached, to - Scully, agent of J. O. Gunter, upon the understanding that they would be negotiated and the sum of $10,500 deposited to the credit of appellant district, subject to its check as the work of constructing the building progressed; that no fund was placed to the credit of the district or received by it for the construction of a building, and that all the bonds, except the four bonds in question, had been returned to the district. No annual school election was held between the time appellant district was organized and the date of the issue of the bonds and execution of the deed of trust, at which the electors of said district authorized the board of directors to borrow money for the purpose of constructing the school building. Subsequently to this time, J. O. Gunter entered into a contract with the Board of Public Affairs of the City of Pine Bluff to finance that city, and placed the four bonds in question in the hands of the city in lieu of an' indemnity bond to guarantee performance of the contract on his part. According to the contention of the city, J. O. Gunter breached his contract, and the city appropriated the bonds under the forfeiture clause of the contract in which said Gunter agreed to finance the city. The city was afterward financed through the agency of Judge James Gould.
Tt is insisted by appellant that the bonds and trust, deed are void because issued by the board of directors of said school district without authority. Act 321 of the Acts of the General Assembly of 1909, under which the district was organized, contains the following provision: “That all school districts created under this act shall have the power to borrow money as any other special or single school district in cities or incorporated towns, when a majority of the legal electors vote for same at any annual school meeting.” This act was a general act, authorizing people in any given territory in any county of this State, other than incorporated cities and towns, to organize their territory into a special or single school district in the manner provided by the act. The school districts provided for by this act were characterized in an-amendatory act of 1911 as “rural special school districts,” as distinguished from special school districts in cities and towns or special school districts created by special act. It goes without saying that if Act 321, Acts 1909, was in force and effect when the bonds were issued and the deed of trust executed on the 15th day of October, 1916, the act of the board of directors in issuing the bonds and executing the deed of trust was ultra vires, and the bonds therefore void in the hands of even a bona fide holder for value. All parties dealing with public officials must take notice of limitations or restrictions upon their power. In this sense, directors of a school district are public officials. It is contended, however, by appellee that Act 321 of the Acts of 1909, and the amendatory act thereto, No. 169 of the Acts of 1911, were repealed by Act 25 of the Acts of 1913. The latter act does not require the approval of a majority of the electors at an annual election in order for the directors to borrow money. It is urged that the latter act is broad enough in its terms to embrace rural special school districts, and, therefore, by necessary implication, repeals Act 321, Acts 1909, which placed such restriction upon the power of the board of directors to borrow' money. The language relied upon in said Act 25, as embracing rural special school districts, is as follows: “All free school districts in the State of Arkansas, ’ ’ etc. The identical language used in the amendatory act aforesaid was used in section 1, act 248, Acts 1905, which it amended, and the original act only included urban special school districts and special school districts created by special act of the Legislature. The purpose of the amending act of 1913 was not to embrace other classes of special school districts not included in Act 248, Acts 1905, but to empower the special school districts already included in said Act 248 to refund any indebtedness which had theretofore been incurred for the erection and equipment of necessary school buildings, and to execute new evidences of indebtedness and mortgages therefor. This intention of the Legislature was clearly evinced in the amendatory act by a repetition of the same language used in the section of the act amended down to the clauses added by way of amendnient, which added clause is as follows: “And to refund such indebtedness and execute new evidences of indebtedness and mortgages therefor.” Again, Act 25, Acts 1913, only purports to amend one section of Act 248, Acts 1905, and does not, as contended by appellee, attempt to take up anew the whole subject of borrowing money by all classes of special school districts in Arkansas and cover the entire ground in relation thereto. The amendatory act of 1913 contains no repealing clause, and, being amendatory of one section of Act No. 248, Acts 1905, will not, by implication, repeal any statute not necessarily in conflict with the section as amended. It was said in the case of Martels v. Wyss, 123 Ark. 184, that, “Repeals by implication are not favored, and when two statutes covering the whole or any part of the same subject-matter are not absolutely irreconcilable, effect should be given, if possible, to both; it is only where two statutes relating to the same subject are so repugnant to each other that both can not be enforced, that the last one enacted will supersede the former, and repeal it by implication. ’ ’ There is no necessary conflict between the section.as amended and Act 321, Acts 1909, because both acts are general and may be considered as referring to different classes of special school districts just as they did by the use of the identical language in describing the classes of districts before the adoption of the amendatory act. Subsequent legislation indicates that we are correct in this conclusion. Act 180, Acts 1917, of the General Assembly of the State of Arkansas, in which the Legislature took up the whole subject of borrowing money by all classes of special school districts, referred to Act 321, Acts 1909, as a live statute and not one that had been repealed by Act 25, Acts 1913. The reference appears in section 1 of said Act li80, and is as follows: “Provided, further, that this act shall not be construed as authorizing any board of directors of any rural special or consolidated school district to issue bonds unless authorized to do so by the vote of the legal electors at the- annual school election as provided in Act 321 of the Acts of 1909 of the General Assembly of-the State of Arkansas.” A court should be slow indeed to construe an act repealed by implication which had been treated by subsequent legislation, touching the same subject-matter, as a living, and not a dead, letter of the law. The court erroneously ruled that the bonds and mortgages were valid subsisting obligations in the hand of appellee against appellant district.
For the error indicated, the decree is reversed and the cause remanded with directions to order a surrender of the bonds and to cancel them and the deed of trust and the record thereof securing them. | [
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Humphreys, J.
Appellant, administrator of the estate of Beulah B. Forehand, instituted suit against appellee in the Dallas Circuit Court to recover $2,000, the face value of insurance policy No. 34304, issued to Jesse M. Forehand on the first day of March, 1917, by appellee, in which Beulah B. Forehand was named as the beneficiary. The policy was made the basis of the suit. In addition to setting out the policy, it was alleged in the complaint that, during the life of the policy, Jesse M. Forehand died; that due proof of the death of the insured was made to the appellee, and that appellee had refused, contrary to its obligation, to pay appellant, 'the representative of the assured, the amount due under the terms of the policy.
Appellee filed answer, claiming exemption from liability under the following clause in the policy: “This policy shall, be incontestable after one year after its date except for non-payment of premiums and except for naval or military service in time of war without permit, which are risks not assumed by this company; provided that in case of the death of the insured while engaged in such service without a permit, the amount payable hereunder shall be the reserve of the policy at date of death.”
The cause was submitted to the court, sitting as a jury, upon the pleadings, the application for the policy, the policy, proof of death, and the following agreed statement of facts:
“1. That upon written application of Jesse M. Forehand there was issued by the defendant company, March 1, 1917, its policy No. 37304, insuring the life of the said Jesse M. Forehand in the amount of $2,000, subject to the terms and conditions of said policy, and that said policy provided for an annual premium of $68.26 dollars, which was paid by the said Forehand, and that sufficient proofs of death was filed, except as to securing permit to enter military service and as to amount due under the policy, which is $51.44.”
“2. That in said policy of insurance issued by the defendant on the life of the said Jesse M. Forehand, among others, js the following provision;
“ ‘This policy shall be incontestable after one year from its date, except for non-payment of premiums and except for naval or military service in time of war without a permit, which are risks not assumed by the company; provided that, in case of the death of the insured while engaged in such service without a permit, the amount payable hereunder shall be the reserve on the policy at date of death. All statements made by the insured shall, in the absence of fraud, be deemed representations and not warranties, and no such statement shall void this policy unless it is contained in the application therefor.’ ”
“3. That after said policy was issued and while the same was in effect, with all of its terms and conditions, the said Jesse M. Forehand entered, and until and at the time of his death was engaged in, the military service of the United States Government of America as a private in the army of the said United States of America. That, at and during the time the said Forehand entered and remained in said service as aforesaid, a state of war existed between the said United States of America and the Imperial German Government.”
“4. That at no time before he entered, or while he was engaged in, the said military service of the said United States of America, during said state of war, did the said Jesse M. Forehand apply for, nor was there issued to him by the defendant, a permit to engage in said service in said time of war in accordance with the provisions of said policy referred to in the paragraph hereinbefore numbered two.”
“5. That the said Jesse M. Forehand died of influenza October 12, 1918, in the Base Hospital at Camp rike, Arkansas, while engaged in said military service of the United States of America as private in the army of said United States of America, without a permit as aforesaid, and while said state of war existed between said United States of America and the Imperial German Government.”
The court found appellee liable for $51.44, the reserve value, but not liable for the face value of the policy, and, in accordance with the findings, rendered judgment against appellee for $51.44, with costs, and dismissed appellant’s complaint for the face value of the policy. From the judgment an appeal has been duly prosecuted to this court.
It is insisted that the court erred in construing the war exemption provision in the policy as meaning the death of the insured during the time he was in the army, instead of construing it. to mean the death of the insured resulting from war activities. The war exemption provision, when read in entirety, relates to death proximately caused by war. In order to give the proviso contained in the provision a reasonable meaning, it is necessary to restrict the risks not assumed by appellee insurance company while the insured was in military service without a permit, to death incidental to military duty. The word “engaged” in the proviso furnishes the key to a proper construction of the provision. It was so held by this court in the interpretation of a provision in an insurance policy quite similar to the provision now before us for construction, in the renct case of Benham v. American Central Life Ins. Co., 140 Ark. 612. In that case the court said: “The word ‘engaged’ denotes action. It means to take part in;” and, in the same case, also said: “ ‘Death while engaged in military service in time of war, ’ means death while doing, performing, or taking part in some military service in time of war. That is to say, in order to exempt the company from liability, the death mnst have been caused while the insured was doing something connected with the military service, in contradistinction to death while in the service due to causes entirely, or wholly, unconnected with such service.” While we do not regard the clause now before us for construction as containing any ambibuity, yet an additional reason in support of the conclusion reached upon the interpretation of the clause may be found in the fact that no reduction was provided in the policy of the premium during the period of enlistment. Had it been the intention of appellee insurance company to relieve itself from death resulting from natural or ordinary causes during the period of enlistment, it would certainly have provided for a corresponding reduction in the premium. It is hardly supposable that the same premium of $68.26 per annum would have been exacted to give the insured protection to the extent of the reserve value of the policy when the reserve value was less than the annual premium. The fact that no reduction was made in the premium is indicative of the intent on the part of the company to exempt itself from the payment of the face of the policy under the war exemption provision from death caused by enhanced danger or hazard to life incident to war, and not from death incident to causes for which it imposed and exacted a fixed, annual premium. We think that the construction of the war exemption provision contained in the policy in the instant case is ruled by the case of Benham v. American Central Life Ins. Co., supra, and not by the case of Miller v. Illinois Bankers’ Life Assn., 138 Ark. 442. The provision under review in the latter case did not contain the proviso in the provision under review in the instant case. To rule this case by the Miller case would, in dur judgment, extend the doctrine announced therein.
We do not think the instant case is differentiated from the Benham case, as suggested by appellee, on account of the following provision in the agreed statement of facts: “That after said policy was issued and while the same was in effect, with all of its terms and conditions, the said Jesse M. Forehand entered, and until and at the time of his death was engaged in, the military service of the Government of the United States of America. ’ ’ It appears in the agreement of facts that the insured died of influenza on October 12,1918, in the Base Hospital at Camp Pike. This disease was a disease common to soldiers and civilians alike, and was not confined to any particular locality; so it is apparent that it was not intended by the clause in question to concede that death resulted to the insured from any active service in the war. ■ The liability of appellee in this case is dependent upon a construction of the war exemption clause in ■the policy and not upon an agreement of facts by the parties. The provision is plain and unambiguous. It only exempts the company from liability on the face of the policy from death proximately caused by' war activities.
For the error indicated the judgment is reversed and the cause remanded with directions to enter judgment in accordance with this opinion. | [
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Hart, J.
(after stating the facts). The question of the civil liability of a judicial officer for a false arrest or for false imprisonment has been much discussed both by courts and text writers. On the one hand the inviolability of personal liberty except under the forms of the law is involved, and, on the other, the dignity and independence of the judiciary should be considered. It has been frequently said that the general rule applicable to all judicial officers is that where the officer has jurisdiction of the person and of the subject-matter he is exempt from civil, liability for false imprisonment so long as he acts within his jurisdiction and in his judicial capacity. This rule has been recognized by this court in several cases.
In the case of Trammell v. Town of Russellville et al., 34 Ark. 105, it was held that one acting judicially in a matter within the scope of his jurisdiction is not liable in an action for his conduct. In the application of the rule it was held that the mayor in issuing a warrant in that case was not liable because he acted in a judicial capacity and within the scope of his jurisdiction. The court said that the enforcement of the ordinances of the town was a duty imposed upon him by the statute and that the validity of the ordinance was a question he had the power to pass upon. Consequently he was held not liable in a civil action for false imprisonment, although the ordinance in which the arrest was made was held to be invalid.
In the case of Vanderpool v. State, 34 Ark. 174, which was a prosecution for the crime of false imprisonment under the statute, it was held that every judicial officer, whether the grade be high'or low, must take care, before acting, to inform himself whether he has jurisdiction of the subject-matter and of the person of the defendant.
In Thompson v. Whipple, 54 Ark. 203, it was held that the mayor of a city, as president of its council, had no inherent authority, according to the usages of deliberative bodies, to order a member to be forcibly excluded from a council meeting for disorderly or indecorous behavior which does not threaten personal injury nor arrest the progress of business. Hence it was held that for the execution of such an order both the mayor and officer executing it were responsible in an action for false imprisonment.
Again in McIntosh v. Bullard, 95 Ark. 227, the court said that false imprisonment is a trespass committed against the person of another by unlawfully arresting and detaining him without any legal authority or by instigating such unlawful arrest. The court further said that it must be alleged that the arrest was without legal authority before an.action can be founded upon it for false imprisonment. In the application of the rule the court held that where a justice of the peace is invested by law with jurisdiction over the subject-matter of an alleged offense, he should not be held liable in damages for an erroneous decision to a party who has been injured thereby.
This brings us to the question of whether the prosecuting attorney and the justice of the peace acted without jurisdiction in causing the arrest of the plaintiff. The evidence does not show that the defendants entered into a conspiracy to do an unlawful act. From all that appears from the record, the defendants, Earl C. Casey and E. E. Case, supposed that their acts respectively in filing the information and in issuing the warrant were lawful. Their intention was to punish the parties named in the warrant for a violation of the .statutes of the State. As we have already seen, a justice of the peace is protected against civil suits for any act done in a judicial capacity within the limits of his jurisdiction. In such a case the justice may act freely and fearlessly, even though his judgment may turn out to be erroneous. But when he acts without jurisdiction, he becomes liable for damages at the suit of the party unlawfully arrested and imprisoned.
In the case at bar the prosecuting attorney in his information charged that the plaintiff and other parties named therein had committed a misdemeanor and prayed a warrant for their arrest. The warrant of arrest was issued by the justice of the peace upon this information. Subsequently the prosecuting attorney obtained leave to amend his information to read that the plaintiff and the other parties named therein had committed the crime of a misdemeanor by refusing to transfer stock certificates Nos. 193 and 194, capital stock, Union Bank & Trust Company, Batesville, Ark. This shows that it was the intention to arrest the plaintiff for a violation of section 859 of Kirby’s Digest as amended by act 222 of the Acts of 1909. See Acts of 1909, page 643. This section as amended is a part of an act to provide for the creation arid regulation of incorporated companies approved April 12, 1869. Section 21 of that act as amended by the act of February 14, 1891, became section 859 of Kirby’s Digest.
Section 21 reads as follows: “If the president or secretary of any such corporation shall intentionally neglect or refuse to comply with the provisions of the twelfth section of this act, and to perform the duty required of them, respectively, the persons so neglecting or refusing shall jointly and severally be liable to an action, founded on this statute, for all debts of such corporation contracted during the period of any such neglect or refusal.”
¡By the act of February 14, 1891, section 21, which had been named as section 980 of Manfield’s Digest, was amended so as to leave out the word ‘ ‘ intentionally ’ ’ and to make the president or secretary liable for the neglect or refusal to comply with the provisions of section 971 of Mansfield’s Digest, which corresponds with section 12 of the original act.
In Sandels & Hill’s Digest the provisions of section 12 of the original act or 971 of Mansfield’s Digest were divided into subdivisions by the digester and called sections 1337 and 1338. The word “as,” which appears between the words “county clerk” and the word “aforesaid” in the original act, was left out by the digester. Section 1347, which corresponds with section 959 of Kirby’s Digest, provides that if the president or secretary of any such corporation shall neglect or refuse to comply with the provisions of .section 1337, etc., the person so neglecting shall be jointly and severally liable, etc. In Kirby’s Digest, sections 1337 and 1338, are numbered as sections 848 and 849 and section 1347 is numbered as 859. In this latter section the digester only refers to section 848 and makes no reference to section 849. The section as amended by the Legislature of 1909 reads as follows: “Section 1. Section eight hundred and fifty nine (859) of Kirby’s Digest of Statutes of Arkansas be amended to read as follows: Section 859. If the president or secretary of any such corporation shall neglect, fail or refuse to comply with the provisions of 'section 848 and to perform the duties required of them respectively, the person or persons so neglecting, failing or refusing, shall jointly and severally be liable to an action founded on this statute for all debts of such corporation contracted during the period of any such neglect or refusal, and shall be deemed guilty of a misdemeanor, and upon conviction shall be fined in any sum not to exceed five hundred dollars ($500), and each and every day such person or persons shall so neglect to comply with the provisions of said section 848 or fail or refuse to perform said duties, shall constitute a separate offense. ’ ’
It is contended by counsel for the defendants that section 849 of Kirby’s Digest makes it the duty of the president and secretary of the corporation to file with the county clerk a certificate of each transfer of stock and that, although section 849 is not referred to in Act 222 of the Acts of 1909, it was the intention of the Legislature to make the failure of the president and secretary to comply with the act in this respect a crime, and that therefore their act in arresting the plaintiff and the other parties named in the information and warrant was lawful. We can not agree with counsel in this contention. The Digests above referred to were compiled pursuant to authority conferred by the General Assembly. In making a digest, it is impractical for the digester to use the number of the sections in the original or amended acts, and he must necessarily adopt his own numbers for the various sections of his digest. For the purpose of this decision it does not make any difference whether or not section 959 of Kirby’s Digest should have referred to both sections 848 and 849 instead of only section 848. The Legislature of 1909 had a right to amend the act as it saw fit, and properly referred to the sections of the digest then in official use in doing so. As we have just seen, the digester had divided section 12 of the original act into two subdivisions and called each subdivision a section of the digest.' The Legislature must be presumed to have intended what the language used by it plainly and clearly means unless there is something in the act as amended to show a contrary intention. We can not ascribe to the Legislature any secret intention which i& opposed to or contrary to the plain meaning of the words used. The act as amended by the Legislature of 1909 is plain and unambiguous. Under its terms it was only made a misdemeanor for the president and secretary to fail or refuse to comply with, the provisions of section 848. There is nothing to show that the Legislature intended that the provisions of the amendatory act should also apply to section 849. On the contrary, it plainly shows that it does not apply to section 849. The amendatory act of 1909 makes no reference whatever to section 849, and it can not be said that the omission to do so was due to inadvertence or mistake on the part of the Legislature. The framers of the amended act of 1909 must be presumed to have intended what their language plainly expresses. If the digester in section 859 had used the words, “sections i848 and 849,” and the amendatory act of 1909 had used the words, “section 848,” as it did use, it could not be said that the framers of the act left out the words, “section 849,” through inadvertence or mistake. As above stated, they did leave out the words “section 849,” and they must be presumed to have left them out intentionally; for there is nothing in the context to show otherwise.
It is also insisted that the words “and to perform the duties required of them respectively,” as contained in the amendatory act show that it was the intention of the Legislature to constitute the action of the president and the secretary in failing to file a certificate for the transfer of stock a crime. We can not agree with counsel in this contention. These words were contained in the act as originally passed. . The provision with regard to the acts of the president and secretary in making the certificate of the transfer of stock is a part of section 12 of the original act. Section 21 is the section which has been amended and under which as amended the prosecution of the plaintiff was instituted. That section made the president and secretary liable for neglect or refusal to comply with the provisions of the twelfth section .and the added words, “and to perform the duties required of them,” evidently refers to the duties specified in section 12. This is shown by section 863 of Kirby’s Digest, which corresponds with section 24 of the original act and provides for the liability of the president, secretary' and directors for failure to perform their duties generally. Moreover, if these words should be construed to refer to the failure of the president and secretary generally to perform their duties and to constitute such acts a misdemeanor the act would be too general to be operative within the meaning of the rule in Ex parte Jackson, 45 Ark. 158. In that case the court held that a section of the digest making it a misdemeanor to “commit any act injurious to the public health or public morals, or the perversion or obstruction of public justice, or the due administration of the law,” is unconstitutional and void for uncertainty.
Hence it is manifest that it is no crime for the president and secretary of a corporation to fail to file a certificate of the transfer of stock with the county clerk and the prosecuting attorney and justice of the peace were without jurisdiction respectively in filing the information and issuing a warrant of arrest against the plaintiff for a violation of the provisions of act 222 of the Acts of 1909.
The plaintiff has prosecuted an appeal from the judgment in favor of J. S. Handford, but there is nothing in the record upon which to predicate a reversal of the judgment in his behalf. The undisputed testimony shows that he had nothing whatever to do with instituting the proceeding for the arrest of the plaintiff, but on the contrary advised against it. His attorney was the prosecuting attorney of the district who proceeded on his own motion to have the plaintiff arrested upon information filed by himself in his official capacity. It turned out that the prosecuting attorney was mistaken in supposing that the matters charged against the parties constituted a crime under our statute, but Handford was not liable for his action in his official capacity.
It follows that the judgment in favor of Handford will be affirmed, and the judgment against Earl C. Casey and R. R. Case will also be affirmed. | [
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McCulloch, C. J.
The General Assembly of 1919 (regular session) passed three special statutes creating three separate improvement districts in Benton County for the purpose of improving certain specified roads. The districts were designated in the statute, respectively, as “Road Improvement District No. 2 of Benton County,” “Road Improvement District No. 3 of Benton County,” and “Road Improvement District No. 1 of Benton County.” See Act No. 119, approved March 1, 1919, creating District No. 2, and Act No. 238, approved March 11, 19Í9, creating District No. 3, and Act No. 115, approved March 27, 1919, creating District No. 1. A later statute was passed during the same session (Act No. 210) amending the statute creating District No. 2, by authorizing an extension of the road to be improved and the addition of other territory.
Owners of real property in each of the districts instituted separate actions attacking the validity of each of the statutes, and they have appealed from an adverse decree of the chancery court upholding the statutes. The three eases involve substantially the same questions, and have been consolidated here for the purpose of being heard.
Learned counsel for appellants present in their argument thirty-five separate and distinct grounds for the attack upon these statutes, the greater portion of which-grounds have been settled adversely to their contention by former decisions of this court. The questions are so' plainly settled by those decisions that it is unnecessary to refer to them for the purpose of application. We will, therefore, confine the discussion to the questions involved which are fairly open to debate under our own decisions.
The statutes follow, in a great measure, the usual form adopted by the lawmakers in the enactment of special statutes creating road improvement districts by de scribing the boundaries of the district and the roads to be improved, and by conferring authority on the commissioners to prepare plans for the improvement, to let contracts therefor, and to assess benefits and levy assessments thereon, and to borrow money and issue bonds.
The road or roads to be improved in District No. 2 are described in Act No. 149 as beginning at a point in a certain section where the road intersects the Eureka Springs-Seligman road “and running in a southwesterly direction through Garfield, Bestwater, Avoca, Rogers, Lowell, and to the south county line” in a certain section; also a road beginning at Rogers connecting with the above described road “and running west through Bentonville, Centerton to Decatur;” and also another road beginning on the Missouri line in a certain section “and running south through Sulphur Springs, Gravette, Decatur, Gentry, Siloam Springs and to the Oklahoma State line. ’ ’
The amendatory statute referred to above provides for an extension of this road “from Siloam Springs in a southeasterly direction to the Washington County line, and intersecting said Washington County line,” and “thence east with said Washington County line and with the south line of Benton County to the southeast corner” of a certain section. It will be seen from this description and by comparison with a map of Benton County, of which we take notice so far as the location of towns is concerned and the sections of land, there is a provision for a road running practically north and south, near the east boundary of the county from a point near the Missouri line southerly through the city of Rogers to the' Washington County line; .and also a road substantially paralleling the western boundary of the county from a point on the Missouri line south to the Washington County line, and also a road from the city of Rogers connecting with the eastern road -just mentioned, and running northwesterly through the city of Bentonville and certain other municipalities, and connecting with the western road at Decatur.
The statute creating District No. 3 provides for a road beginning on the Missouri line in a certain section near the town of Carvena, Missouri, thence in a southeasterly direction through Bella Vista to Bentonville; thence in a southerly direction through Cave Springs to the Washing-ton County line to a point in a certain section ; also a road beginning at the intersection of the road from Rogers to Bentonville in District No. 2, near Droke schoolhouse in a certain section; thence in a westerly direction to Morning Star schoolhouse; thence south and west to Vaughan, thence south and west through Mason Valley, to an intersection with the line between two specified sections of land; and thence along or near the section line and through the town of Highfill, thence in a general westerly direction through Springtown, thence in a general southwesterly direction to an intersection with the road from Siloam Springs to Gentry in District No. 2; also a road beginning at or near Morning Star schoolhouse and running west one-quarter mile, thence north to an intersection with the Bentonville and Center road in District No. 2.
The statute creating District No. 2 authorizes the improvement of a road beginning at Elkhorn tavern and running westerly to the town of Pea Ridge, “thence in a general southerly direction on the most practical route to an intersection with the road from Rogers to Garfield” in District No. 2 at or near the town of Rogers; also a road beginning at the southeast corner of the public square in Bentonville, thence in a northeasterly direction to an intersection with the above described road from Pea Ridge to Rogers, at or near the bridge across Sugar Creek.
In each of the statutes the roads are mentioned as public roads. Learned counsel for appellants argue with great earnestness that the statutes do not declare the roads to be public roads, and this is one of the grounds for attack. We do not think that it was essential to the validity of the statutes that there should be an express declaration therein that the roads have already been es tablished as public roads. On tbe contrary, we hold that, if they are not public roads, it devolves on those assailing the validity of the statute to make it so appear. But, as a matter of fact, the sections of these statutes describing the roads each start out with an express statement that they are public roads, and we think that the attack on this ground is, from any viewpoint, unfounded.
It is alleged in the complaint (and this must be treated on demurrer as true) that there are several public roads from Rogers to Bentonville, and it is contended that this renders uncertain the description of the road “beginning at Rogers, connecting with the above described north and south road, and running west through Bentonville, Centerton to Decatur.”
Conceding that there is more than one public road between Rogers and Bentonville, there is nothing to show that there is not a particular one forming the continuous route from Rogers to Decatur so as to answer the description in the statute.
Again, it is argued that the words “thence in a general southerly direction on the most practical route to an intersection with road from Rogers to Garfield,” found in the statute giving description of the road from Elk-horn Tavern to Rogers, shows that it is not a public road. Such is not the necessary effect of those words. There may be more than one public road between Pea Ridge and Rogers, and the commissioners are there authorized to select the most practical one.
It is next contended that the roads, particularly in No. 2, in which two of the roads to be improved parallel the eastern and western boundaries, and one runs practically across the county for the purpose of connecting ■those two roads, are too diverse to constitute one improvement. The boundaries of the district extend three miles on each side of these roads. While the territory is large and the roads to be improved are extensive, we can not say on the face of the statute that these roads can not be treated as a single improvement, and that the finding of the Legislature to that effect is arbitrary. They fall within the rule announced in the case of Johns v. Road Improvement Districts of Bradley County, post, p. 73, decided this day.
The point is made also that the statutes constitute invasions of the jurisdiction of the county court for the reason that there is no provision for the county court to lay out the roads to be improved. The answer to this has already been stated in saying that the roads appear to have already been established as public roads, and it is unnecessary to invoke the jurisdiction of the county court. Each of the statutes provide, however, that the commissioners of each district “may with the consent of the county court of Benton County change the route of any of the roads herein provided for, or eliminate any of them, and may build such laterals as they may deem expedient, the same to be constructed upon highways laid out by the county court. ’ ’ This is a clear recognition in the statute of the jurisdiction of the county court over the subject of public roads, and contitutes an authority to invoke the aid of that jurisdiction for the purposes mentioned. Each of the statutes contains a section, which reads as follows:
“Said board of commissioners are further required to, upon the petition of 51 per cent, of either a majority in number, acreage, or valuation of property owners in any defined district or part, of Benton County not now included in this act, asking that additional territory be embraced in this district for the purpose of building or improving any road or roads not now included in this district, it shall be the duty of said board of commissioners to include said territory in said improvement district, and to assume jurisdiction over it, and to proceed to build, maintain and to construct a public road or roads-as herein provided in this act.”
It is difficult to discover the meaning of the lawmakers from the language used in this provision. It does not provide merely for the change of boundaries for the purpose of including laterals or changes in the route of the road, for that is provided for in another sec tion. Giving the language the force which its use necessarily implies, it seems to confer authority for the creation of entirely new districts, but it is ineffectual for that purpose for the reason that there is no provision made in the statute for the assessment of benefits and the levy and collection of taxes for that purpose. The section is entirely inoperative, and is, therefore, void, but that does not affect the validity of the remainder of the statute, which provides that if for any reason any section or part of this act shall be held unconstitutional or invalid, that fact shall not affect the validity of any other part of the statute, “but the remaining portions shall be enforced without regard to that so invalidated.” There is no allegation that the commissioners were about to proceed under the section just quoted, and appellants are not entitled to any relief on that score.
In the principal section in each of the statutes, defining the power of the board of commissioners, it is declared that they “are hereby vested with the power and authority, and it is hereby made their duty, to build, construct, maintain and repair said road or roads within said districts as hereby provided.” The contention is that this is an attempt to confer authority, not only to construct the original improvement, but that it contains the continuing authority “to maintain and repair” said road or roads, and that to vest such power in the board of commissioners without orders of the county court would constitute an invasion of the jurisdiction of that court over public roads. We do not think that this language, standing alone and without any other provision in the statute to carry it into effect, constitutes sufficient authority for the commissioners to exercise a continuing power in the maintenance and future repair of the roads. The first section declares that the lands described “are hereby made an improvement district for the purpose of constructing and improving highways in Benton County.” This appears to be in conflict with the subsequent section, which uses the term “maintain and repair said road or roads.” An examination of the entire stat ute shows clearly that it was the intention of the lawmakers to provide only for the original improvement and for an assessment of benefits to raise funds to pay therefor. The statute, in other words, treats the project as a single one, and there is no provision for separate contracts for maintenance or repair or for reassessments of benefits for the new work to be done from time to time in the maintenance and repair of the road. The framers of the statute must have used a term in connection with the word “improve” so as to give the language its broadest effect in authorizing the improvement of the public roads described so that there might be found no restriction upon the power of the commissioners to improve the roads, but, in the absence of further provision sufficient to carry out the continuing power to maintain and repair the roads after they have been improved, we must assume that there was no intention on the part of the lawmakers to confer continuing power for that purpose. The words ‘ ‘ build, construct, maintain and repair, ’ ’ as used with reference to established public roads, were intended as synonymous terms to express broadly the power to be conferred. The commissioners are authorized in subsequent sections to form only one set of plans for the improvement and to assess benefits accruing only from the original improvement, which shows that the lawmakers did not intend to authorize assessments for future maintenance and repairs. The fact that the commissioners are continued in power after the completion of the improvement does not imply the power to make new contracts for maintenance and repair and to assess benefits arising from the same, for the manifest purpose of continuing the authority of the commissioners was merely to provide for collecting assessments and paying the cost of improvement and the bonds sold for that purpose.
We are, therefore, not called on to decide what would be the effect of a statute which attempts to confer continuing power on the board, of commissioners to maintain and repair public roads. Whether or not that would be an invasion of the jurisdiction of the county court, we need not now consider.
This statute does not, however, contain any provision that the plan for the improvement must be submitted to and approved by the county court, and it is contended that this constitutes an invasion of the county court’s jurisdiction. We have never had that question before us for decision, and now for the first time the question is squarely presented whether or not an improvement district created by statute can be authorized to mate improvements on public highways without obtaining the approval of the county court. Our conclusion is that the authority to improve a public highway does not invade the jurisdiction of the county court. The road is a public highway, but the improvement is for the betterment of the contiguous lands. The improvement of the road does not in any sense constitute an interference with the general control of the county court over public highways. The authority of the board of commissioners is to bring about a betterment of the highway and not a detriment. The authority of each body, that is to say the board of commissioners and the county court, may be exercised without hindrance to the other. This is illustrated by the decision of this court in the case of Pulaski Gas Light Co. v. Remmel, 97 Ark. 318, where we held that there was no conflict between the authority of a board of improvement to pave a street and the general authority of the city council over the streets of a municipality. Whenever the powers conflict, that of the board of commissioners must yield to the jurisdiction of the county court, but, as before stated, there arises no necessary conflict from the authority of the commissioners to improve the road. It is suggested that the county court after the completion of the improvement might exercise its jurisdiction over the road and destroy it. This may be true, but it is not to be presumed that a county court would abuse its power; and if it should attempt to do so, remedies are available to prevent it. The county court, in the exercise of its power, is subject to legislative restrictions, and remedies may be and are afforded for appeals from judgments of the county courts abusing their power.
It is next contended that a provision in the statute for assessment of benefits is contradictory and unenforceable in that the commissioners are required, in making assessments, to enter the lands upon the tax books “in convenient subdivisions as surveyed by the United States Government,” and that there is no provision for assessing town lots, which can not be described by subdivisions under the Government surveys. This provision is merely directory, and it does not mean that an assessment of a given tract of land under another description would not be valid. The provision merely designates the most appropriate method of description, but it is only applicable so far as it can be used to describe lands in the district. Other methods of description may be used when the directed method is not applicable.
The contention is made that the statute should be declared void because it gives the board power to vacate public roads, but this is not true, because, as we have already seen, the statute provides that any change in the route must be with the approval of the county court.
There is also a contention that the statute, in confining the limits of the district to lines three miles distant from the roads to be improved, is arbitrary, and that it excludes other lands which may be benefited by the improvement. It is pointed out that lands in the county east of the three-mile limit of the territory along the road paralleling the east boundary of the county will be necessarily benefited because of the opportunity to use the road, ánd that the same condition exists with reference to lands west of the limits of the boundary of that part of the district which parallels the west line of the county.
¥e have frequently had similar questions before us, and we have uniformly held that the legislative determination as to benefits is conclusive unless it is manifestly arbitrary and without foundation. The latest case on this subject is Bush v. Road Improvement District of Lee County, ms. op. And another illustrative case is that of Hill v. Echols, 140 Ark. 474.
It is contended that the statute creates a perpetuity by keeping the commissioners in office with power to name their own successors. No perpetuity is created by these statutes, for the districts are brought into being for specified purposes and last only until those purposes are accomplished. The commissioners are kept in authority only for that purpose, and there is no inhibition in the Constitution against the method of reappointing commissioners so as to continue the existence of the board until the purposes of the district have been accomplished. The Constitution does not restrict the power of the Legislature with respect to the method of appointing commissioners of local improvement districts, or in providing for the appointment of their successors. Reitzammer v. Desha Road Imp. Dist. No. 2, 139 Ark. 168.
We find nothing else in the case which has not been settled by repeated decisions of this court.
It is alleged in the complaint that notices of introduction of the bills for these statutes were not given, as required by the Constitution, article 5, section 23, and counsel renew this oft-repeated attack on the validity of the statutes. In the case of Davis v. Gaines, 48 Ark. 370, this court held that a presumption will be conclusively indulged that the Legislature found that the notice was given. The doctrine of that case remains to that extent unimpaired, and has been recognized in all subsequent decisions, including the recent case of Booe v. Road Improvement District, 141 Ark. 140, where we held that the provision of the Constitution requiring notice is mandatory, and that a presumption in favor of the legislative finding that the notice was given will not be indulged where the circumstances were such that it could not have been given.
The decree of the chancellor is, therefore, affirmed. | [
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Smith, J.
This is a suit to recover fifty dollars paid by the appellant to S. R. Taylor under a contract for the purchase of a certain piece of land and to subject the land to the payment of the same. The suit was originally filed against S. R. Taylor as defendant, who has since died, and the cause has been revived in the name of appellees. The complaint alleged that on the 7th day of August, 1916, the plaintiff and defendant entered into a contract by the terms of which the defendant agreed to sell the plaintiff twenty-five acres of land in Pulaski County, Arkansas. That the plaintiff agreed to pay therefor a thousand dollars, and that the defendant was to furnish him with an abstract showing a good title to the land. That plaintiff paid fifty dollars to the defendant as an advance payment of earnest money, and agreed to pay the balance when the defendant should furnish the plaintiff a deed and abstract showing a good title to the .land. That later the defendant furnished an abstract, which, upon examination, showed that he had no title to one acre of the land, and that there were defects in the title, which showed that the defendant did not have good title to the land.
That the plaintiff refused to accept the deed and refused to pay the balance of the purchase money except upon the condition that the defendant should deduct the value of the shortage or perfect his title. That the defendant refused to deduct the value of the shortage in quantity and refused to carry out and perform his part of said contract. That the defendant refused to return the fifty dollars paid, and that the plaintiff was entitled to a lien on the land to secure its return.
The prayer was for a decree against the defendant for $50, and that the plaintiff be decreed to have a lien on the land to secure the payment of same, and for an order of sale in case of failure to pay.
Upon filing a motion by the defendant to require the complaint to be made more specific, the plaintiff filed an amended complaint, making the contract of sale an exhibit thereto, and alleged that it was agreed that in case the defendant could not make a satisfactory deed that the defendant should return the advance money. That the plaintiff caused the abstract, which the defendant had furnished him, to be- examined by an attorney, who advised the plaintiff that the defendant did not have a good title to one acre of the land, and that it would require a suit in chancery to perfect the defendant’s title. That by reason of the imperfection of the defendant’s title to one acre of the land the defendant was unable to make a satisfactory deed. That the contract of sale was canceled by agreement of the parties, and that the plaintiff returned the abstract, and that the defendant agreed to return the fifty dollars.
The answer specifically denied each allegation of the complaint and prayed its dismissal.
The contract referred to and made an exhibit to the complaint reads as follows:
“This is an agreement between S. ft. Taylor, party of the first part, and ft. Bodine, party of the second part. S. ft. Taylor, party of the first part, agrees to sell west part of south quarter, section 30, 3 north, range 10 west, containing fifteen acres, more or less, and the south part of the southeast, containing ten acres, more or less; in fact, all of my real estate west of St. Louis,- Iron Mountain Railroad, to R. Bodine, for the sum of $1,000 in cash.
“R. Bodine, party of the second part, agrees to deposit $50 to S. R. Taylor for good faith, and to pay him the balance of $950 when S. R. Taylor makes him a good warranty deed; in case S. R. Taylor can not make a satisfactory (deed) to said land he is to return the said $50 to R. Bodine at once.
(Signed) S. R. Taylor.
(Signed) R. Bodine.
‘‘8-7-16 Date.”
This contract was prepared by one McBride, a justice of the peace, who testified that the parties came to his office and .asked him to prepare it. That Taylor had the deed which had been made to him for the land, and that both parties read over this deed, and that he then wrote the contract after Taylor had stated to Bodine that he was selling him the land as described in the deed. That witness further testified that Taylor had resided on the land since 1904. The deed referred to described the land by metes and bounds.
The cause was tried below, and is presented here, upon the theory that the title was to be satisfactory to appellant’s attorney, and the objection made to it is that there was a shortage of an acre. In the progress of the trial, however, the court made this statement:
“I don’t want to direct your case, of course, but I don’t know that there was one acre in this call that is affected. I couldn’t take Judge Heard’s statement. I would have to pass on that question myself. The contract does not call for the title to be passed upon by Mr. Heard. *’
We do not understand that it has been made to appear that there was a shortage of an acre, and no other objection to the title was made. The court below was correct in the view that the contract did not call for a title which Judge Heard (appellant’s attorney) would approve, but called for a good and satisfactory title, this being the proper interpretation of the language employed in the contract of sale. The question, therefore, was not whether appellant’§ attorney had approved the title. The controlling question is, was there any valid objection to it? The objection made was that there was a shortage of an acre, and it does not appear that this objection was well taken.
There is conflicting testimony as to the propositions and negotiations occurring after the objection had been made that there was a shortage in acreage; but we think nothing is shown which obligated the seller to do more than to furnish a good title, and, as we have stated, the only objection made to the title is not substantiated by the record before us, and .the complaint was therefore properly dismissed for the want of equity. | [
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Hart, J.,
(after stating the facts). It will be perceived from the statement of facts that the railroad company sought relief from the action of the assessors by appealing from the finding of the board of assessors to the board of commissioners and then to the circuit court as provided by the statute. In the circuit court a complaint was filed by the railroad company as required by the statute. The circuit court sustained a demurrer to a part of the complaint and tried the remaining issues on the pleadings and the evidence introduced. We have set out the judgment of the circuit court in full in our statement of facts, but for convenience again set out that part of it which is most material to the issues raised by the plea of res adjudicata in the present case. It is as follows : “Now on this day comes the plaintiff by its attorneys, T. B. Pryor and W. P. Strait; comes the defendant, Conway County Bridge District, by attorneys, Sellers & Sellers, and this cause coming on for hearing upon the demurrer to plaintiff’s petition, pleading in this cause, and the court being well and sufficiently advised, it is ordered and adjudged that the demurrer to the petition, pleadings of the Missouri Pacific'Railroad Company, be and the same is hereby sustained to all the provisions and matters pleaded except that feature and provision alleging that plaintiff was not benefited and that the benefits assessed are excessive and more than the actual benefits received, to which finding and ruling the plaintiff, Missouri Pacific Railroad Company, at the time excepted and saved exceptions.”
The railroad company duly prosecuted an appeal from the judgment of the circuit court to this court, and the judgment of the circuit court was affirmed. The .opinion is reported in 134 Ark 292, under the style of Mo. Pac. Rd. Co. v. Conway County Bridge Dist.
Upon the present appeal there is a dispute between the parties as to what was decided in that case, and it is also strongly and earnestly insisted by counsel for the plaintiff that in certain respects the holding of this court in that case was not in accord with the issues raised by the appeal. In short, counsel claim that the court went beyond the issues and decided matters not raised by the appeal. On this point the case at bar must be determined by the opinion and statement of facts on the appeal in the case of the circuit court reported in 134 Ark. 292. Whatever the court held on the appeal in that case was determined in the court below is conclusive in the present suit. If this were not so, litigation might be 'interminable, and a judgment settling the rigits of the parties would be only a starting point for new litigation. In the opinion in that case, in discussing what issues were presented by the appeal, the court said: “Therefore, the only question for decision is whether or not the evidence is legally sufficient to support the finding of the circuit court as to the amount of assessment against appellant’s property, and the uniformity of the assessment with those imposed upon other property in the district.”
In making the assessment in that case the assessors divided the district into five beneficial zones and assessed the property in each zone at a different percentage according to its proximity to the bridge. It is now insisted that this was an arbitrary method of assessing the property of the railroad, and that there was no issue on this point made by the pleadings in the case in the circuit court. It is sufficient answer to this to say that this method of assessing the property was distinctly referred to, discussed and approved in the opinion on the appeal in that case. Hence the present suit is concluded in this respect by that opinion.
It is also insisted in the case at bar that the assessment of benefits was arbitrary and much greater than the benefits received by the railroad company. It is now insisted that this issue was not raised by the appeal in that case. We repeat that this issue was discussed and determined by the court on that appeal. The court expressly recognized that the. board of assessors had no right to arbitrarily fix a method of assessment which would not result in the ascertainment of the true benefits so as to work out uniformity in the assessment; but the court expressly held that the assessors had not done so and the question can not be again litigated. Moreover, this holding was in accord with the previous decisions of this court. In Lee Wilson Co. v. Road Imp. Dist. No. 1, 127 Ark. 310, the court had under consideration the provisions of the general law for the organization of road districts. In that case provision was made by the statute for an appeal to the county court to hear and determine the justness of any assessment of benefits and the court was authorized to equalize, lower or raise any assessments upon a proper showing to the court. The property owner there pursued the statutory- method of appealing from the judgment of the county court making the assessment, and contended on appeal to this court that the assessors in making the assessment of benefits to accrue to the land owner acted in an arbitrary manner, which resulted in an assessment far in excess of any benefits which would be derived from the improvement and which was so discriminatory and confiscatory as to amount to taking its property 'without due process of law. The court held that the evidence showed that the assessments of benefits was arbitrary and not made in the manner required by the 'statute. It held that the court erred in sustaining the assessment and reversed the judgment of the circuit court which had sustained the judgment of the county court in -making the assessments.
In the present case the assessors assessed the property of the railroad upon a mileage basis which was in the manner pointed out by the statute. This court affirmed the judgment of the circuit court sustaining the assessment in this respect because the statute had been followed in making the assessment.
As we have just seen, the holding is in accord with the rule laid down in the Lee Wilson Company case, although that case was not referred to in the opinion on the appeal in the circuit court case. It is true that the Lee Wilson Company case was subsequently overruled in so far as it held that the validity of the statute could be attacked on appeal under the statute from the finding of the bodies authorized to make the assessment of benefits ; but it was not overruled in so far as it held that upon an appeal under the statute from the assessment of benefits the court could determine whether the property was not benefited at all, whether the benefits assessed exceeded the benefits received, whether the assessment of benefits was arbitrarily made, or in fact whether the assessment of benefits amounted to a confiscation of the property of the complainant. See K. C. Sou. Ry. Co. v. Road Imp. Dist. No. 6 of Little River County, 139 Ark. 424.
It appears from the complaint that the total benefits assessed against all the real property in Conway County, including the railroad of the plaintiff, for the construction of the bridge is $296,806, of which amount plaintiff’s twenty-two miles of railroad is assessed at $68,975, an approximately one-fourth of the entire benefits to be received by all the property within the district by reason of the construction of the bridge. It is claimed that this amount not only is far in excess of the benefits received by the railroad company from the construction of the bridge, but that it is discriminatory and arbitrary when compared with the assessments made upon the other property within the district. It is claimed that this question was not within the scope of the issues raised by the appeal in the former case. We can not agree with counsel in this contention. The judgment of the circuit court expressly recites that the sum of $68,975, the amount of benefits assessed against the property of the railroad company, was not excessive. In the opinion upon appeal in that case the court said that the assessors divided the county into five zones according to the proximity of the property to the bridge and assessed the benefits by percentages on the value of the property for the purpose of taxation. The court sustained that method of assessment. While the evidence as disclosed by the record was not set out in detail and discussed by the court, the action of tbe court in sustaining the assessment in the opinion was necessarily an adjudication of the matter against the railroad company, and the question can not be reopened in the present case.
To sum up, under section 7 of the act in question, the board of assessors shall hear the complaint of all owners of property within the district, and shall increase or decrease the assessments,' after having heard the complaints of the property owners, so as to adjust the burden of the assessment to the benefits which will accrue to the property. The section also provides for an appeal to the board of commissioners and from that board to the circuit court. The power to increase or to decrease the assessments and to adjust the burden of the assessments to the benefits which will accrue to the property necessarily includes the power to decide whether the assessment is erroneous, whether the assessment is so high as to be confiscatory, whether it exceeds the actual benefits, or whether it is discriminatory. In these respects the statutory remedy is exclusive, and it is only upon grounds questioning the validity of the statute that the present suit can be based.
It follows that the court was correct in sustaining the defendant’s plea of res judicata.
Section 7 of the act provides that the assessors shall assess the value of the benefits which will accrue to telephones and telegraph lines and other power lines and also pipe lines.
The validity of the statute is assailed in the present suit on the ground that this rendered the act invalid because the Legislature had no power to include such lines within the district. There has been much diversity of opinion as to whether or not the right-of-way of such lines receive any benefits from a local improvement, but we are of the opinion that they may be included in the district for the same reason that is generally given in the case of the right-of-way of railroad companies. Of course, the amount of benefits would be a question of fact to be determined by the board of assessors.
Section 7 of the act also provides that the assessments of railroads, etc., shall be by the mile and not by the acre. The assessors made the assessment in the manner provided by the statute. Hence the validity of the statute in providing that the assessments of railroads, telegraph and telephone lines shall be by the mile and not by the acre was not involved in the appeal from the circuit court reported in 134 Ark. 292, and that question is a proper subject for adjudication in the case at bar. The precise question has been determined adversely to plaintiff in the case of Branson v. Bush, 251 U. S. 182. In that case the railroad company sought to enjoin the sheriff and collector from collecting the taxes assessed against the railroad company under a special act passed by the Legislature of 1911 for the purpose of constructing a highway in Crawford County, Arkansas. Special Acts of Arkansas, 1911, page 642.
Section 3 of that act provides for the assessment of all railroad rights of way within the boundaries of the district. In the opinion of the Supreme Court of the United States it is stated that the Circuit Court of Appeals enjoined the collection of the taxes as against the railroad company on two grounds:,
“(1) ¡Because the including of the franchise and other intangible property of the company in the assessment, results in ‘a higher rate of taxation’ on the property of the railway company than on the other property in the district; and
“(2) Because the evidence fails to show that the company would derive any benefit from the improvement of the road.”
The court reversed the decree of the Circuit Court of Appeals, and in regard to the first ground said that the basis for assuming that the franchise of the railroad company was added as a separate personal property value to the assessment of the real property of the company becomes upon the record as much too unsubstantial to justify invalidating the tax on that account if it be otherwise valid.
The court also reversed the decree on the second ground. On this point the witnesses for the district testified that the development of the adjacent county would increase the business of the railways company and by making a station on the plaintiff’s line of railway more accessible to distant lands would divert business from Yan Burén where there was a competing railroad. The court then said: “To this must be added the obvious fact that anything which develops the territory which a railroad serves must necessarily be of benefit to it, and that no agency of such development equals that of good roads.”
The record here is in all essential respects similar to the record presented in that case. The reasoning of the court in that case is sound, and will be adopted in the case at bar. The franchise of a railroad is an intangible element of value but it is inseparable from the value of the physical property of the railroad. We are of the opinion that the franchise is an element of value to be considered by the board of' assessors as entering into and enhancing the value of the real estate of the railroad company, and was not the application of an unlawful measure of value of such property for purposes of taxation. The value of the franchise attaches to the property regardless of ownership, and as above stated, is inseparable from the value of the physical property. Mr. Justice Clark in the case last cited, speaking for the court said: “If, however, the distinction sometimes taken between the ‘essential properties of corporate existence’ and the franchises of a corporation (Memphis & L. R. Rd. Co. v. Commissioners, 112 U. S. 609, 619), be considered substantial enough to be of practical value, and if it be assumed that the distinction was applied by the State commission in making the assessment here involved, this would result, not in adding personal property value to the value of the real estate of- the company in the district, hut simply in determining what the value of the real property was — its right-of-way, tracks and buildings — having regard to the use which it made of it as an instrumentality for earning money in the conduct of railroad operations. This at most is no more than giving to the real property a value greater as a part of a railroad unit and a going concern than it would have if considered only as a quantity of land, buildings and tracks. * * *
“Thus, the assessment complained of was made under valid laws and in a manner approved and customary in arriving at the value of that part of railroad tracks situated in a State, county or district. So far as this record shows, the assessment, modified by the decree of the District Court not appealed from, is not a composite of real and personal property values, but is the ascertained value of the real estate — the tracks and buildings — of the company within the taxing district, enhanced, no doubt, by the special use made of it, but still its value as a part of the railroad unit, resulting from the inherent nature of the business in which it is employed, a value which will not be resolved into its constituent elements for the purpose of defeating contribution to a public improvement. No attempt was made to prove fraudulent, or capricious or arbitrary action on the part of any officials in making the assessment, the only evidence upon the subject being the opinions of four employees of the company that the improvement of the road would not benefit the railroad property, and if inequality has resulted from- the application of the State law in a customary manner to a situation frequently arising in our country, it is an incidental inequality resulting from a valid classification of railroad property for taxation purposes which does not fall within the scope of the Fourteenth Amendment, which was not intended to compel the States to adopt an iron rule of equal taxation.”
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