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Darrell Hickman, Justice.
This is another in a series of appeals concerning the Omnibus DWI Act. Terry Wells and Larry Howard were separately charged and tried in municipal court for driving while intoxicated but were jointly tried and found guilty, on appeal to the Boone County Circuit Court. Wells was convicted of DWI, third offense, and sentenced to a year in prison with all but 90 days suspended, a $1,000 fine, and revocation of his driver’s license for two years. Howard was convicted of DWI, first offense, and sentenced to 60 days in jail, all of which was suspended. He was fined $250 and his driver’s license was suspended for 90 days. We affirm the judgments.
Two questions are presented with regard to thé Act that we have not yet answered. The first issue is whether Ark. Stat. Ann. § 75-1031.1 (c) (Supp. 1983) requires the state to produce in court the Arkansas State Health Department official who certifies the breathalyzer machine. The answer is no. The statute provides:
The chemical analysis referred to in this section shall be made by a method approved by the State Board of Health. The method approved may be proved by a certificate duly acknowledged by a representative of the State Board of Health and said certificate shall be admissible per se in any criminal prosecution and shall not be subject to any objections on grounds of heresay [hearsay]. Provided, however, the machine performing the chemical analysis shall have been duly certified at least once in the last three [3] months preceding arrest and the operator thereof shall have been properly trained and certified. Provided further, the person calibrating the machine and the operator of the machine shall be made available by the State for cross-examination by the defendant or his counsel of record upon reasonable notice to the prosecuting attorney.
The state offered the testimony of the police officer who calibrated the machine in both cases. The defense insisted that the statutes required the state health official to be present who certified the machine. We find no such requirement. In fact the statute allows certification to be proven with the certificate itself. That was not done in this case, but the appellants did not object below to the absence of the certificates; instead, they only argued that the official must be present. On appeal the argument is somewhat altered to object to the lack of the certificate. We do not reach arguments on appeal not made below. Swaite v. State, 274 Ark. 154, 623 S.W.2d 176 (1981).
The other question is whether a defendant has the right to counsel at the time the breathalyzer test is taken. The appellants argue that the test is a “critical stage” of the prosecution requiring presence of counsel.
The right to counsel guaranteed by the Sixth Amendment to the United States Constitution applies to all critical stages of a criminal proceeding. United States v. Wade, 388 U.S. 218 (1967). Wade held that pretrial procedures must be scrutinized to determine the potential for prejudice to the defendant and whether counsel’s presence could help avoid that prejudice. The Supreme Court held that while a post-indictment lineup is a critical stage, requiring that an accused be given the right to counsel, certain scientific tests are not such stages. The Court stated:
The Government characterizes the lineup as a mere preparatory step in the gathering of the prosecution’s evidence, not different — for Sixth Amendment purposes — from various other preparatory steps such as systematized or scientific analyzing of the accused’s fingerprints, blood sample, clothing, hair, and the like. We think there are differences which preclude such stages being characterized as critical stages at which the accused has the right to the presence of his counsel. Knowledge of the techniques of science and technology is sufficiently available, and the variables in techniques few enough, that the accused has the opportunity for a meaningful confrontation of the Government’s case at trial through the ordinary process of cross-examination of the Government’s expert witnesses and the presentation of his own experts. The denial of a right to have his counsel at such analyses does not therefore violate the Sixth Amendment; they are not critical stages since there is minimal risk that his counsel’s absence at such stages might derogate from his right to a fair trial.
In Holmberg v. 54-A Judicial Dist. Judge, 60 Mich. App. 757, 231 N.W.2d 543 (1975), the appellant argued that the denial of his request for counsel before being given a breathalyzer test violated his constitutional rights. The Court of Appeals of Michigan found, as we do, that there was no constitutional right to counsel before a breathalyzer test is given.
Affirmed. | [
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David Newbern, Justice.
This is an appeal from a denial of post conviction relief sought pursuant to Ark. R. Crim. P. 37. Our jurisdiction is based on Arkansas Supreme Court and Court of Appeals Rule 29(l)(e).
The two questions presented below were (1) whether the appellant was denied the effective assistance of counsel and (2) whether the state has lived up to its plea bargain. We hold the trial court was correct in finding for the state on both points, thus we affirm.
The appellant was charged with capital felony murder and with attempted murder arising from a separate incident. The first charge was reduced to first degree murder and the attempt charge was dropped. In exchange for the charge reduction and for dropping the attempt charge, and the appellant now claims other promises, the appellant agreed to and did testify in other trials against other persons charged in connection with the murder to which he pleaded guilty.
1. Counsel Effectiveness
The sole claim of the appellant in this respect is that his counsel informed him he would be eligible for parole in seven to ten years. He says had he known his sentence to life imprisonment would not permit him to be paroled he would not have pleaded guilty. Both of the lawyers who represented the appellant at his trial said at the Rule 37 hearing they discussed with the appellant the possibility he could be eligible for parole if his life term were commuted to a term of years. Neither could say he had told the appellant that one sentenced to an uncommuted life term would be ineligible for parole, but each said he had not told the appellant he could be eligible for parole on an uncommuted life sentence. One of the lawyers testified the appellant “was aware” that there was no parole eligibility with a life sentence.
To reverse the trial judge’s denial of post conviction relief under Rule 37 we would have to find the court’s decision was clearly against the preponderance of the evidence. Knappenberger v. State, 283 Ark. 210, 672 S.W.2d 54 (1984); Williams v. State, 273 Ark. 371, 620 S.W.2d 277 (1981). The only testimony that the appellant was unaware his life sentence would not carry parole eligibility absent commutation came from the appellant. Based on the record of the hearing the court was free to hold that the preponderance of the evidence showed that while appellant’s lawyers speculated with him about commutation and parole eligiblity, the appellant was not misled.
2. Bargain Keeping
The appellant contended at the Rule 37 hearing he had been promised (a) that he would serve his sentence at the diagnostic unit or other special place and not be placed in the general prison population at the Cummins unit, (b) that various persons would write letters for him recommend ing early parole, and (c) that the then Pulaski County sheriff would commute his sentence upon becoming governor.
The record shows that none of these alleged promises were included in the written plea agreement. The recorded agreement showed only that the appellant’s guilty plea was made in exchange for reducing the charge from capital to first degree murder and dropping the attempt charge. It also stated the appellant’s sentence would be served “in the Arkansas Department of Correction.”
We agree the state must keep any bargain it has made, Santobello v. New York, 404 U.S. 257 (1971), and if it does not the guilty plea may be withdrawn. Mabry v. Johnson, _U.S. _, 81 L. Ed. 2d 437, 104 S. Ct. 2543 (1984). However, we cannot say the court’s finding on this point was clearly against the preponderance of the evidence.
While the record demonstrates concern by the appellant, his lawyers and law enforcement officials about his safety as a prisoner, the promises and their status as quid pro quo were testified to only by the appellant. One of his lawyers testified that, while there was a desire on the part of the appellant that he be “moved out of the state” and thereafter his wish became that he be “confined to the Diagnostic Unit in Pine Bluff,” both of those prospective agreements “fell through” before the agreement was entered.
The sheriff testified he had made no promise to commute the appellant’s sentence if he became governor. He also testified that he had promised no letter to the parole officials on the appellant’s behalf.
Otherwise in regard to the prospective letters, one of the appellant’s counsel testified there were no representations made as far as letter writing was concerned.
We have reviewed the entire record of the Rule 37 hearing. Taken as a whole it demonstrates the written plea agreement adequately reflected the intent of the appellant and the state. Certainly we cannot say the evidence clearly preponderates to the contrary.
Affirmed.
Holt, C.J., not participating. | [
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Jack Holt, Jr., Chief Justice.
This is the second appeal of a case involving a default judgment on a promissory note. Our jurisdiction is pursuant to Sup. Ct. R. 29(l)(j).
The appellants executed a promissory note to the appellee which was secured by a mortgage on real property. When the appellants defaulted, the appellee filed a complaint to foreclose on the property. The appellants asserted usury as a defense in their answer to the complaint.
The trial court found the note was not usurious under the governing federal law. That ruling was appealed to this court and we affirmed in part, reversed in part, and remanded in part on December 12, 1983. Overton Const., Inc. v. First State Bank, Springdale, 281 Ark. 69, 662 S.W.2d 470 (1983), rehearing denied, Janaury 16, 1984.
On remand, the appellants filed an amended answer in which they alleged that the real property securing the promissory note was not “residential” real property within the meaning of the applicable federal legislation. The trial court struck the amended answer. It is from that order that this second appeal is brought. We affirm.
This court has consistently held that when a cause is broadly remanded for a new trial all of the issues are opened anew as if there had been no trial, and the parties have a right to amend their pleadings as necessary. Sanders v. Walden, 214 Ark. 523, 217 S.W.2d 357 (1949); American Nat’l Ins. Co. v. Laird, 228 Ark. 812, 311 S.W.2d 313 (1958); and Ford Motor Credit Co. v. Herring, 267 Ark. 201, 589 S.W.2d 584 (1979). Here there was no such broad remand. Instead, this court in Overton, supra, decided all of the issues except for the question of whether or not the parties proceeded to trial “with the knowledge that First State Bank was a member of the Federal Deposit Insurance Corporation.” Overton, 281 Ark. at 71. It was for the narrow purpose of resolving that question that this case was remanded. It is a general rule that a party is not allowed on remand to amend his pleadings so as to open up matters that were adjudicated by the appellate court. 5B CJS Appeal & Error § 1969 (8) (1958).
In fact, this appeal marks the appellants’ third attempt to litigate the question of whether or not the property securing the mortgage was residential property. This same issue was raised in the first appeal and in the petition for rehearing. Clearly this court has already answered the appellants’ contention.
In Harper v. Nash Implement Co. Inc., et al, 281 Ark. 161, 662 S.W.2d 811 (1984), we found the trial court had correctly applied the doctrine of “law of the case” by refusing to permit additional pleadings on remand. We said:
The principles of law determined and announced in the former appeal are binding and must stand as the law of the case . . . The decision of the trial court. . . was approved by this Court in the first appeal. On retrial the trial court correctly applied the doctrine of “law of the case” in applying the law set out in this Court’s opinion in the original appeal. Accordingly, we conclude the trial court was correct in refusing to grant a trial de novo on all of the issues.
We reach the same conclusion in this case.
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Robert H. Dudley, Justice.
Appellant, Rudolph Lane, and his family were insured by appellee, Blue Cross-Blue Shield, under his employer’s group medical insurance policy. He filed suit against appellee for expenses incurred in the medical treatment of his newborn grandson who suffers from congenital heart problems. The grandson was born to appellant’s unmarried sixteen year old daughter. Appellant tacitly admits that his grandson is not within coverage of the insurance contract but contends that Ark. Stat. Ann. § 66-3248 should be interpreted to require coverage. The trial court held that the statute did not mandate coverage. We affirm. Jurisdiction to construe an Act of the General Assembly is in this court. Rule 29(1 )(c).
Ark. Stat. Ann. § 66-3248, in its pertinent part provides, “Every. . . medical service insurance. . .contract. . .which covers the insured and members of the insured’s family, shall include coverage for newborn infant children by the insured from the moment of birth.”
The term “insured” is not one of fixed meaning, and often its meaning may be ascertained only from the policy or statute in which it appears. See 44 C.J.S. Insurance § 49. As the term is used in this statute it is clear that appellant, Rudolph Lane, is the insured and that his unmarried daughter is a member of his family. The statute then covers his newborn infant children. This conclusion is bolstered by Emergency Clause language which states: “Many . . . hospital and medical service contracts ... do not cover newborn infants of an insured until the infant reaches a certain age. ...” From this clause it would appear that the legislature contemplated coverage for Rudolph Lane’s newborn child but did not intend to extend coverage to cover his grandchild since they did not specifically include newborn infant grandchildren. We are precluded from construing “children” to include “grandchildren” since we previously held that where the word “children” is used in a statute it must be construed to mean only descendants of the first degree unless it is apparent from the context that a broader meaning was intended. Starrett v. McKim, 90 Ark. 521, 119 S.W. 824(1909).
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Darrell Hickman, Justice.
Late in the afternoon of January 28, 1984, in Crossett, Arkansas, the appellant, Willie Lee Girtman shot Ulysses Jasper four times with a .38 revolver and killed him. Girtman was charged with first degree murder and convicted by a jury. He was sentenced to 60 years imprisonment after the j ury found he had two prior convictions.
On appeal Girtman argues his conviction must be set aside for insufficiency of the evidence, the wrongful admission of evidence touching on the character of the deceased, and because it was not shown he had legal counsel when he was previously convicted. We find no merit to any of these arguments.
Essentially Girtman’s argument is the jury could not have returned a finding of guilty of first degree murder because it chose to disbelieve his version of the killing. Girtman’s defense was justification or self-defense as defined in Ark. Stat. Ann. §41-507 (Repl. 1977).
Girtman’s version of the incident was that he and the victim had had problems before, and on the day of the incident they had a fight at the home of Willie Carter where several people had gathered to play cards. Several witnesses testified that the victim, Jasper, was drunk and, without provocation, started a fight with Girtman. After the fight was well started the bystanders stopped it. Girtman said that Jasper told him the next time they met one of them would “leave here.” Girtman took the statement as a death threat. He said he went home and discovered he had left his watch at Carter’s and started to return. He took his mother’s pistol and en route saw Jasper waiting for him in an alley. According to Girtman, he tried to avoid Jasper by going another way but Jasper ran in front of him and blocked his way. Girtman said Jasper “went for” his pocket and he shot him.
Several witnesses testified and corroborated Girtman’s version of what happened at Carter’s home. There were no eyewitnesses to the killing.
On appeal we must view the evidence in a light most favorable to the state and if there is substantial evidence to support the jury’s verdict we must affirm their finding. Johnson v. State, 270 Ark. 992, 606 S.W.2d 752 (1980).
There was sufficient evidence for the jury to find Girtman deliberately and premeditatedly killed Jasper. Their previous altercation was over and the parties had withdrawn. Jasper was very intoxicated. His blood alcohol content was .26%. Girtman by his own sworn statement admitted he never saw a weapon. In the pocket of Jasper’s trousers was found an unopened pocket knife. That is the only evidence Jasper had any sort of weapon. Girtman shot him four times. According to the evidence from the medical examiner, two shots were undoubtedly to Jasper’s face, but two were to his back, when the decedent was apparently in a crouching or falling position. Girtman hid the gun and ran home. As he was running one of the neighbors called out to him, but he kept going, not answering. The jury had the right to resolve the facts after hearing the evidence and to decide whether or not to believe Girtman’s account. We do not disturb their findings if they are supported by any substantial evidence. McLemore v. State, 274 Ark. 527, 626 S.W.2d 364 (1982). .
Deadly physical force is justified as self-defense only if the use of such force cannot be avoided as by retreating. We have held that a condition precedent to a plea of self-defense is an assault upon the defendant “of such a character that it is with murderous intent, or places the defendant in fear of his life, or great bodily harm. A mere assault is not sufficient to justify the plea of self-defense.” Blaylock v. State, 236 Ark. 924, 370 S.W.2d 615 (1963).
Nor have we found a plea of self-defense j us tified where the evidence showed the defendant armed himself and went to a bar in anticipation that the decedent would be there and would attack him; or that the defendant provoked an attack upon himself by the decedent with the intention of killing the decedent. Burton v. State, 254 Ark. 673, 495 S. W.2d 841 (1973). The jury in this case would have been justified in finding that Girtman took the gun and left his home with the intention of killing Jasper.
Even if Jasper were the original aggressor, once he withdrew from the encounter and the danger to Girtman was no longer “immediate, urgent and pressing,” Girtman was not justified in pursuing him to continue the fight. Thomas v. State, 266 Ark. 162, 583 S.W.2d 32 (1979).
The appellant also argues that evidence was wrongfully admitted concerning the character of the deceased. The defense was allowed to place before the jury the deceased’s reputation for violence, not only generally but by specific acts. During the examination by the state of one of their witnesses, the witness said:
And the conversation he is at my daughter’s house, he was talking and, ah, he was talking to me about going to church and, ah, he said all he know of me that I had gone to church all my life. He was gonna go to church with me and I told him why don’t you come on and go today and he said I’m is going. And then he went on to tell me that he had somthing to happen to him in the army and wondered would he get forgived for that. I told him under conditions that you was obeying orders that I believed the Lord would forgive you.
It is argued this remark was so prejudicial as to deny the appellant a fair trial. Specifically it is argued this was evidence of specific acts of good conduct which are inadmissible under Unif. R. Evid. 405 (b) since it was not an essential element of appiellant’s claim of self-defense. See, West v. State, 265 Ark. 52, 576 S.W.2d 718 (1979).
Actually the defense was not careful in its presentation of character evidence of the deceased. According to Unif. R. Evid. 405 that evidence should have consisted of reputation in the community, not specific acts. Jones v. State, 1 Ark. App. 318, 615 S.W.2d 388 (1981). Four witnesses, including Girtman, testified about the deceased’s reputation or propensity for violence, especially when he had been drinking. Most mentioned specific instances. The statement complained of is hardly the sort that could deny Girtman a fair trial. “One who opens up a line of questioning or is responsible for error should not be heard to complain of that for which he was responsible.” Berry v. State, 278 Ark. 578, 647 S. W.2d 453 (1983). So we find this harmless error at best.
Girtman’s last argument can be answered by merely reciting what the records showed about counsel for the two prior convictions.
The first conviction was for burglary, grand larceny and possession of stolen property on March 18, 1975, case number 75-99 and it reads:
Mr. Switzer previously appointed to represent Dft. Court again explains his rights to trial by Jury & Counsel. Pleads guilty. Sentenced to five (5) years in State Penentary [sic]. Same to run concurrently with sentence in case No. CR 76-29 Mr. Switzer granted fee of $50.00 for his services.
The second conviction is for theft of property on March 18, 1976, case number 76-29 and it reads:
Dft. arraigned in presence of court appointed counsel. Declines trial & Counsel, Sentenced to (5) years in State Penrtentary [sic] same to run Concurrently with sentence in CR NO. 75-99.
The state proved Girtman had counsel or waived it regarding these convictions.
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Robert H. Dudley, Justice.
This appeal involves construction of the rules and regulations of the Jonesboro Fire Department and the Jonesboro Civil Service Commission. Jurisdiction to interpret rules of administrative agencies and regulatory bodies is in this Court. Rule 29(1 )(c).
Section 49 of the regulations of the Jonesboro Fire Department provides for testing fire department lieutenants on their knowledge of the location of streets and fire hydrants. It further provides that lieutenants who fail to maintain an average yearly score of 70% are given a one-year grace period to bring up this average. If a lieutenant does not bring his average to 70% within that year, he will be demoted. Appellant, Lieutenant James Fregó, has been employed by the Jonesboro Fire Department for over fifteen years. In 1980, he received written notice from the Fire Chief that his 1979 average on the streets and hydrants exam was 56%, his 1980 score was 68%, and that he must maintain a 70% average to maintain the rank of lieutenant. In 1981, he brought his average up to 77%, but in 1982 his average dropped to 59%. The Chief notified him that if he did not bring his average up to 70% by December, 1983, he would be reduced in rank from lieutenant to hoseman. His 1983 exam score was only 41%. The Chief gave appellant written notice that he would be reduced in rank in January, 1984. Appellant appealed to the Jonesboro Civil Service Commission. After a hearing the Commission voted unanimously to uphold appellant’s demotion. Upon appeal, the circuit court affirmed the decision of the Commission. We affirm the circuit court.
Appellant first contends that the circuit court erred in construing the rules and regulations of the fire department and Civil Service Commission. We find no merit in the argument.
The elements of the fire department regulation providing for demotion for failure to maintain a 70% average have been set out.
Next, Section 13 of the Civil Service regulations authorizes the Chief to reduce appellant in rank. “A member . . . may be. . . reduced in rank. . . for cause, and the person so reduced. . . shall be served with the reason ... in written form by the Chief of the department.”
Appellant argues that the Chief is prevented from reducing him in rank since an article of the Civil Service regulations provides that the Chief shall make day to day rules for the operation of the department. Again, the argument is without merit. The regulation giving the Chief authority to make day to day rules is complementary and not inconsistent with the regulations giving him authority to reduce members of the department in rank.
Appellant contends that the fire department regulations are invalid because Ark. Stat. Ann. § 19-1604 (Repl. 1980) requires that city councils adopt regulations by ordinance, but the Jonesboro City Council only adopted the rules by motion. The argument is without merit because the statute is open ended as to the method of adoption. In parliamentary practice adopt means “to accept, as a report.” Webster’s New International Dictionary, Second Edition (1953). There was compliance with the statute when the city accepted the regulations by motion.
Appellant contends that the Civil Service Commission cannot enforce fire department regulations since the commission did not adopt those regulations. The answer to that argument is that Ark. Stat. Ann. § 19-1603 give the Civil Service Commission the authority to enforce fire department regulations adopted by the city council.
Appellant next argues that the ordinance creating the Civil Service Commission was adopted on April 4,1983, and that it repealed any conflicting regulations. From that basis, he argues that the fire and hydrant exam is in conflict with the ordinance creating the Civil Service Commission, and that he cannot yet be demoted because, after it was readopted, he was entitled to one year to take the exam, to April 4, 1984, and one year of grace, to April 4, 1985. The argument is of no avail because the regulation providing for the exam and the ordinance creating the commission are not in conflict. The ordinance did not repeal the regulation.
Appellant last argues that he was denied due process because the transcript of his hearing before the Commission was not “stenographically recorded.” See Ark. Stat. Ann. § 19-1603 (Repl. 1980). The answer to that argument is that appellant was not denied due process since the circuit court allowed appellant to supplement the record with the exhibit which, he contends, was left out of the original transcript. As a result, there is no material omission from the original transcript which could have caused appellant a denial of due process.
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Jack Holt, Jr., Chief Justice.
The issues in this appeal concern the contest of a will executed by Elizabeth H. Bowden. Two cases involving the same parties have been consolidated. Our jurisdiction is pursuant to Sup. Ct. R. 29(1 )(p).
Elizabeth H. Bowden, of Osceola, Ark., died January 30, 1982, at the age of 81. She was survived by five sisters: Helen Reddoch, Geneva Rauenhorst, Ora Blair, Rosamond Banks and Irene Wilson; and two half-brothers and one half-sister. A will executed by Mrs. Bowden on December 7, 1981, was admitted to probate. The will favored Helen Reddoch and her descendants and did not provide for the decedent’s other relatives. Mrs. Reddoch, who is now deceased, had lived with Mrs. Bowden since the 1940s when Mrs. Bowden’s husband died. She was living with her at her death, as was Mrs. Reddoch’s daughter, Rose Mahan, also now deceased.
Two of Mrs. Bowden’s sisters, Mrs. Rauenhorst and Mrs. Blair, contested the will claiming it was procured through undue influence exercised by Mrs. Reddoch and Mrs. Mahan. One year later the other sisters and the half brothers and sister joined in the will contest.
After a 17-day trial during which 52 witnesses were heard, the trial court entered an order on March 26, 1984, finding (1) that Elizabeth Bowden possessed the mental capacity to make a will; (2) that her capacity was diminished making her susceptible to the undue influence of others; (3) that Mrs. Reddoch and Mrs. Mahan had the opportunity to, and did unduly influence the decedent; (4) that as a result the will contained provisions which favored them to the exclusion of other members of the family; (5) the will was an expression of the desires of Helen Reddoch and/or Rose Mahan; (6) the dispositive provisions were the result of undue influence; and (7) the revocation clause was valid, which creates an intestacy and requires that the estate be shared equally by the decedent’s surviving sisters or their heirs.
It is from the trial court’s order that these appeals are brought. The appellants contend that the court erred in holding the dispositive provisions of the will invalid because of undue influence. We agree.
Probate and chancery cases are tried de novo on appeal. This court does not reverse unless the findings of the probate judge are clearly erroneous, giving due deference to the superior position of the judge to determine the credibility of the witnesses and the weight to be accorded their testimony. Rose v. Dunn, 284 Ark. 42, 679 S.W.2d 180 (1984); Terrell Faith Prophet Ministries v. Estate of Varnum, 284 Ark. 108, 681 S.W.2d 310 (1984); Edwards v. Vaught, 284 Ark. 262, 681 S.W.2d 322 (1984). In this instance, the probate judge’s finding that undue influence on the part of Mrs. Reddoch and Mrs. Mahan avoids the dispositive aspects of the will was clearly erroneous.
We have held many times that the party challenging the will is required to prove undue influence at the time the will was executed by a preponderance of the evidence. Rose, supra. Much of the testimony touched on the relationship of the parties over the years, and previous wills written by Mrs. Bowden, but did not focus on the execution of the will in question. The facts surrounding the execution of the will were as follows.
Mitchell Moore, the attorney who prepared the will, testified that he had known Elizabeth Bowden since about 1967. An accountant had informed Moore that Mrs. Bowden would be contacting him about some legal work and Rose Mahan had also contacted Moore with the same information. Neither the accountant nor Rose Mahan told Moore the nature of the work Mrs. Bowden would require. Moore stated that he first met with Mrs. Bowden at her house on September 22, 1981. He visited with her, Ms. Mahan and Mrs. Reddoch for a few minutes and then Mrs. Bowden asked the other two women to excuse themselves so they could talk. Moore testified that he was at the Bowden residence for about three and one-half hours and that he and Mrs. Bowden discussed a prior will that Susan Callison, a Memphis attorney, had made for her in 1980. Mrs. Bowden was concerned that under the 1980 will her taxes were too high and she had a bank trustee she did not want. She selected a new trustee and told Moore that she had already given two of her other sisters property. She also informed him of how long Mrs. Reddoch had lived with her and discussed some of her grandchildren. Moore indicated that Mrs. Bowden liked the Callison will but had had a change of heart about some of its provisions. Specifically, in the Callison will, Rose Mahan and Carlos Reddoch, Helen Reddoch’s son, were not left any property and Mrs. Bowden now wanted to treat Mrs. Reddoch’s three children equally, by leaving them each one-third of the estate. Moore stated that she initially wanted to leave everything to Mrs. Reddoch, but that he advised her that because of the tax consequences she should give Mrs. Reddoch the tax exemption equivalent. At no time, according to the attorney, did Mrs. Bowden consult Rose Mahan, or her three sisters who lived in the area: Mrs. Blair, Mrs. Reddoch or Mrs. Banks. Instead, he said she was insistent on keeping their discussions private.
After the September 22 meeting, Moore said he conferred with Mrs. Bowden by phone and was at her house one or two times. In each of these discussions, Moore stated that although Mrs. Bowden would forget some things she never forgot the property she owned and how she wanted it disposed of.
On December 7,1981, Mrs. Reddoch took Mrs. Bowden to Moore’s office to execute the will. Rose Mahan was in Memphis at the time. Mrs. Reddoch stated that Mrs. Bowden, who suffered from severe asthma, cerebral arteriosclerosis, dementia, and chronic obstructive pulmonary disease, was in good condition that day. When they arrived, Mrs. Reddoch stated that they visited with Moore about some property located in Mississippi. She then left Mrs. Bowden and Moore alone in the library to discuss the will. She went in the room a few times to check on Mrs. Bowden but stated that she did not remember any discussion about the will. Mrs. Reddoch returned to the library when the will was signed, but the will was not read during that time. Moore then drove Mrs. Bowden and Mrs. Reddoch home.
Moore’s testimony supported Mrs. Reddoch’s version of the events surrounding the execution. Moore further stated that he asked Mrs. Bowden questions in front of the witnesses to the will, Dr. Eldon Fairley and James Morgan, which required answers detailing the extent and nature of her property. He also asked her what she wanted to do with her property and she replied that she wanted Helen to have the property for life and then have it go to Helen’s children. During their private conference, Moore said he read the entire will with Mrs. Bowden and satisfied himself that this was her will and was what she wanted to do with her property. He further stated that neither Mrs. Reddoch nor Rose Mahan had any knowledge concerning the dispositive provisions of the will.
Vickey Hobbs, an employee of Moore’s law firm, testified that Mrs. Bowden appeared to understand what she was doing and seemed to be acting of her own free will.
James Morgan, one of the witnesses, stated that in his opinion Mrs. Bowden understood what she was doing in Moore’s office. He said she answered questions in a correct, proper manner and appeared to know and understand what she owned and who her closest relatives were. He testified he saw nothing to indicate she was acting under any duress.
Dr. Fairley, another witness who was also Mrs. Bowden’s personal physician, stated that people in Mrs. Bowden’s condition can be influenced by whoever is with them. He stated, however, that on the day the will was executed she answered questions about her property correctly and indicated she understood her will and knew who she wanted to leave her property to. Dr. Fairley stated that although Mrs. Bowden still had medical problems they did not seem to be bothering her as much that day and she seemed pretty clear. He testified that he thought Mrs. Bowden knew what she was doing when she signed the will and that he would not have witnessed the will if he did not think she was aware of her actions.
Other evidence was offered at the trial that Mrs. Bowden had executed wills in 1976, 1980 and 1981. There was also evidence of a 1956 will. Each of the wills, including the 1956 will, evinced a consistent pattern of making Helen Reddoch and her descendants Mrs. Bowden’s primary beneficiaries. Except for the earliest will, written some 25 years before her death, the other sisters and half-relations were mostly excluded. Furthermore, Helen was the only sister with whom Mrs. Bowden had consistently close contact since the two lived together for 40 years.
We said in Rose v. Dunn, supra, that:
Undue influence which avoids a will is not the influence which springs from natural affection or kind offices, but is such as results from fear, coercion, or any other cause that deprives the testator of his free agency in the disposition of his property, and it must be specially directed toward the object of procuring a will in favor of particular parties. . . . The mere fact that a beneficiary is present while a will is made does not give rise to a presumption of undue influence.
We also stated in Rose that a rebuttable presumption of undue influence arises in the case of a beneficiary who procures the making of a will. We found no procurement in that case where the beneficiary merely drove the testator to the attorney’s office and participated in the initial dis cussions. Here there is no evidence that either Rose Mahan or Helen Reddoch procured the will and therefore the presumption did not arise.
In determining the question of undue influence “[i]t is not sufficient that the testator was influenced by the beneficiaries in the ordinary affairs of life, or that he was surrounded by them and in confidential relation with them at the time of its execution.” Greenwood, Guardian v. Wilson, 267 Ark. 68, 588 S.W.2d 701 (1979). In Sullivant v. Sullivant, 256 Ark. 95, 564 S.W.2d 665 (1965), we explained:
Testators are not required by law to mete out equal and exact justice'to all expectant relations in the dispositions of their estates by will, and the motives of partiality, affection, or resentment, by which they naturally may be influenced, are not subject to examination and review by the courts.
In Abel v. Dickinson, 250 Ark. 648, 467 S.W.2d 154 (1971), we explained that a will is usually considered “unjust and unnatural” when a testator leaves his estate to strangers to the exclusion of the natural objects of his bounty without any apparent reason. We said, however:
A will cannot be said to be unnatural because a testator preferred one for whom she had developed a close and affectionate relationship ... or when the natural objects of the testator’s bounty are in no need of funds, aid or assistance.
Here, the proof indicated that not only was the decedent in a close relationship with Helen Reddoch, but she had made gifts to some of her other sisters and, on the whole, considered that they were not in need of financial help from her. The fact that their relationship made Mrs. Reddoch and Rose Mahan natural objects of Mrs. Bowden’s bounty, coupled with the strong pattern she had shown over the years of favoring Mrs. Reddoch and her children, support the validity of the will. We find, therefore, that the trial judge clearly erred when he held the will invalid.
Accordingly we reverse and remand with instructions that the 1981 will be admitted to probate. Our holding makes it unnecessary to reach the other issues raised in this appeal or the issues raised in the companion case.
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John I. Purtle, Justice.
The circuit court on appeal reversed the decision of the Morrilton Planning and Zoning Commission. On appeal to this court the Commission argues: I) the trial court erred in receiving testimony outside the hearing before the Commission; II) the court erred in finding the Commission acted arbitrarily, capriciously or unreasonably; III) the court erred in finding that the Commission failed to consider the effect of the action taken on the neighborhood; IV) the court erroneously held the appellees had standing to appeal to the circuit court; and V) the court erred in holding part of the ordinance unconstitutional.
City of Morrilton Ordinance #10 of 1979 provided a procedure to follow in order to place a mobile home in an R-2 district, provided the neighbors within 300 feet of the proposed mobile home site are polled and not more than 20% of them object. Permission to place a mobile home in an R-2 district was granted to appellants McCammon on November 5, 1983. The proceedings of the Commisison were not reported verbatim. The minutes were constructed in a narrative conclusional form which stated Ordinance #10 had been complied with so far as necessary in order to permit the variance. At the appeal hearing the court took testimony from the appellees and other witnesses. Some of the evidence considered was merely repetition of evidence presented to the Commission and some was new. The court looked behind the Commission’s statement that the requirements of Ordinance #10 had been met. The appellees, who had not testified at all at the November 5, 1983, hearing before the Commission, were allowed to testify. The circuit court overruled the objection on standing of the appellees to appeal and held that the Commission did not poll the property owners within 300 feet of the site proposed for the mobile home. Additionally, the court held subsection three of Ordinance #10 was arbitrary for lack of guidelines for the Commission to make a proper determination.
Subsection 3 of Ordinance #10 reads as follows:
3. A mobile home may be placed in an R-2 district provided all conditions for placement in an R-3 district are met along with the following:
a. An application shall be filed with the City Building Inspector. Such application shall show the location, lot size, proof of lot ownership by applicant and any other information pertinent to the request.
b. The City Building Inspector shall poll property owners within a three hundred foot (300') radius of the desired location of the mobile home. Should not less than twenty percent (20%) of the neighboring property owners object to the placement of the mobile home, the application shall be disapproved.
c. After the above requirements are met, the applicant shall present all pertinent information to the Planning and Zoning Commission. The Commission shall review the application, the poll taken by the City Building Inspector, the effect of such proposed use on the character of the neighborhood, the location of public utilities, all information presented at the public hearing and any other matters pertaining to the general welfare of the citizens of Morrilton and transmit its findings to the applicant within 45 days.
d. Any mobile home in an R-l or R-2 district may not be replaced with another mobile home unless a new application for permit is approved according to the above conditions.
We must first determine the standard of review in an appeal from a city commission such as the Board of Adjustment. Apparently the entire Planning Commission sat as the Board of Adjustment in the present case. The City of Morrilton followed the law in establishing its Planning Commission.
The General Assembly established the procedure for judicial review of actions taken pursuant to planning and zoning regulations. Ark. Stat. Ann. § 19-2830.1 (Repl. 1980). However, this court held the statutory procedure to be unconstitutional in the facts of Wenderoth v. City of Ft. Smith, 251 Ark. 342, 472 S.W.2d 74 (1971). Wenderoth basically held that the judicial review statute took away the discretionary power to perform legislative functions which the legislature gave to the cities by authorizing them to legislate in matters relating to planning and zoning regulations. Courts review such legislative enactments by municipalities only as to whether such actions are arbitrary or capricious. Wenderoth, supra. We again considered this subject in City of Paragould v. Leath, 266 Ark. 390, 583 S.W.2d 76 (1979). We cited Wenderoth and distinguished it, saying: “[T]he act here which provides for appeals from the Board of Adjustment is not subject to those constitutional limitations applicable to City Council actions in zoning because the Board of Adjustment acts administratively, not legislatively. Appeals to the circuit court from the Board of Adjustment are permitted.”
The type of review from decisions of administrative agencies was considered by this court in Goodall v. Williams, 271 Ark. 354, 609 S.W.2d 25 (1980) and in Ark. Commission on Pollution Control & Ecology v. Land Developers, Inc., 284 Ark. 179, 680 S.W.2d 909 (1984) where we reviewed many of our earlier decisions. Both Goodall and Land Developers dealt with agencies exercising executive or legislative functions and both held that de novo review by the courts was improper. Although both cases cited Wenderoth, that case dealt with the legislative function of a city in exercising its delegated power to enact ordinances. Neither Goodall nor Land Developers is precedent for Planning Commission cases. Wenderoth declared the appeal provisions of Ark. Stat. Ann. § 19-2830.1 unavailable when applied to appeals relating to city ordinances because in such instances the action taken was legislative. However, the opinion expressly exempted the question of the constitutionality of the statute as it relates to city councils or other agencies acting in administrative or quasi-judicial capacities.
A common thread running through most of the above cited cases is that a trial de novo on appeal is improper and indeed unconstitutional if the objective of the appeal is to question legislative or executive wisdom. However, if the appeal involves a constitutionally or statutorily protected right or one preserved by private contract, then a trial de novo is proper. With this thought in mind we examine the facts of this case to determine to which category it belongs. The Planning Commission, sitting as a Board of Adjustment, has no power to legislate. The appellants and appellees dealt with the Commission on matters relating to the use of their properties. Relying upon the action taken by the Commission, appellants purchased substantial property. The Boyers already owned a home in the area. Individual property rights are secured by several provisions of our constitutions. Individuals are not constitutionally guaranteed the right to do with their property what they wish in all circumstances. The police power and health and welfare doctrines clearly mandate restrictions on ownership and use of property in such a manner as to prevent detriment to the rights of the public.
The record on appeal to the circuit court was com pletely inadequate to apprise the court of the manner and scope of the hearing before the Commission. The court was faced with the problem of returning the case to the Commission for a hearing or trying it de novo. When a record is completely inadequate or belies the truth there must of necessity be a remedy. Every person is entitled to a certain remedy for all injuries or wrongs suffered by him and he ought to obtain justice promptly and in conformity with the law. Ark. Const. Art. 2, § 13. If de novo review of actions by administrative boards and commissions were not allowed, a board or commission might act arbitrarily or unreasonably or even conceal the real facts and thereby protect such acts from proper review. Therefore, a de novo hearing on appeal is proper when the appeal is from actions taken by administrative boards, commissions and agencies exercising adjudicatory or quasi judicial functions.
An appeal from the Board of Adjustment is allowed by Ark. Stat. Ann. §§ 19-2829 and 19-2830.1. Although the latter does not authorize appeals contesting the validity of city ordinances, in Leath we held that the city had standing to appeal from a decision of a Board of Adjustment. Certainly the parties here have as much standing and should be allowed to take an appeal. In this case, the parties certainly consider themselves injured. We hold that the court had the power to grant a hearing de novo from the action by the Commission.
In holding a trial de novo it became unnecessary for the court to sua sponte hold portions of the ordinance unconstitutional. Therefore, the constitutionality of subsection 3 of Ordinance #10 should not have been addressed.
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Darrell Hickman, Justice.
The primary question presented in this case is whether, since the passage of Act 401 of 1981, a farmer who orally sells his grain to a licensed grain warehouseman, who subsequently goes bankrupt, can void the sale and recover the unpaid purchase price from the company that purchased the grain from the warehouseman. The trial court held that the farmer, appellee Wright, is entitled to recover. We disagree.
We believe the purpose of Act 401 is to protect farmers who have stored their grain in warehouses, not those who have made an outright sale of their grain to a warehouseman. Here there was a sale. Act 401 was passed in response to a farm market crisis created by storage elevators going bankrupt and placing farmers, who had stored their grain, at odds with banks, lienholders and creditors over the ownership of the grain. Wayne Cryts, a Missouri farmer, became the focus of national attention in the James Brothers case when he removed his grain from a bankrupt elevator in violation of bankruptcy court orders. Shortly after the Cryts incident, Act 401 was passed. The history of the act is set out in detail in Note, Act 401 of the Public Grain Warehouse Law: An Exception to the U.C.C. Concept of Voidable Title, 37 Ark. L. Rev. 293 (1984). In commenting on the purpose of Act 401, the author said.
While there has been much discussion in the wake of the James Brothers case as to needed changes in laws governing grain warehouses, Arkansas is the only state which has varied from the U.C.C. to allow a grain depositor to recover against a warehouse grain buyer in the ordinary course of business. Since unauthorized sales ‘are void and convey no title,’ the farmer can sue to recover from the purchaser, assuming that he has not signed the written instrument required by Act 401, and the identity of the purchaser can be determined. This change is significant because failing grain warehouses have been known to sell depositors’ grain to avoid bankruptcy, although such action usually postpones bankruptcy only briefly.
In this case Eddie Wright sold his soybeans to Harrisburg Elevators, Inc., in February, 1983. It was a “spot sale” at his farm for a quoted price. Payment was to be made March 1. It is undisputed that Wright was selling the soybeans, not storing or depositing them with the Harrisburg grain elevator. The beans were taken by Harrisburg to their elevator merely to weigh them and then carried to Memphis and sold there to Continental Grain Company, a federally licensed warehouseman. Continental paid Harrisburg, and Harrisburg gave Wright a check for the purchase price, $73,932, which was dishonored. Wright later received a cashier’s check for $17,000 and a personal check for $56,832. The personal check was dishonored. Because of its financial trouble, the State Plant Board closed Harrisburg and Harrisburg soon filed for bankruptcy. Before Harrisburg filed, it paid Wright another $12,000. Wright filed suit for conversion against Continental Grain Company and Farm Bureau Mutual Insurance Company, which was Harrisburg’s bonding company, for the balance of the sale price. The trial court held that Continental and Farm Bureau were jointly and severally liable.
First, we discuss Farm Bureau’s appeal. Their defense was that their bond applied only to grain stored in Harrisburg’s elevators, and we agree. Under the statute licensing bonded grain warehousemen, the bond is to be conditioned upon the warehouseman’s delivering all stored grain or paying its value upon surrender of the warehouse receipt. Ark. Stat. Ann. § 77-1315(a) (Repl. 1981). The amount of the bond is to be determined by the capacity of the warehouse. Ark. Stat. Ann. § 77-1316(a) (Repl. 1981). Statutory bonds are to be construed as if the terms of the statute were written into them. Empire Life & Hospital Ins. Co. v. Armorel Planting Co., 247 Ark. 994, 449 S.W.2d 200 (1970). We think it clear that the bond is to protect only the holders of warehouse receipts. Since Wright does not fall within that class, he is not entitled to judgment against Farm Bureau. That conclusion also disposes of Wright’s cross-appeal, by which he seeks to recover penalty and attorney’s fee from Farm Bureau.
It is not so easy to dispose of Continental’s appeal. The trial court ruled that under Act 401 the sale by Harrisburg to Continental was void because Wright had not executed a written document conveying title to the soybeans. We find that ruling to be wrong because in our judgment the act only applies to grain which is stored, not sold outright to the warehouseman. The basis of the trial court’s decision and the heart of Act 401 is Section 4, which reads:
77-1340 Title to grain.
Ownership of grain shall not change by reason of an owner delivering grain to a public grain warehouseman, and no public grain warehouseman shall sell or encumber any grain within his possession unless the owner of the grain has by written document transferred title of the grain to the warehouseman. Notwithstanding any provision of the Uniform Com mercial Code (Act 185 of 1961 [§ 85-1-101 et seq.], as amended) to the contrary, or any other law to the contrary, all sales and encumbrances of grain by public grain warehousemen are void and convey no title unless such sales and encumbrances are supported by a written document executed by the owner specifically conveying title to the public grain warehouseman.
A first reading of this section might lead one to conclude that a farmer could void any transaction with a grain warehouseman. But this section does not say a farmer can void an outright sale he makes to a warehouseman; only a sale made by a warehouseman of grain delivered to him for storage can be voided.
There are several reasons for our conclusion. First, the act does not expressly purport to apply to sales by a farmer to the warehouseman. The sales that the act voids are sales of grain delivered to a warehouseman and sales of grain within the warehouseman’s possession. This was the conclusion of the writer of the article noted before who stated: “the farmer who has sold his grain would be estopped from asserting his rights under Ark. Stat. Ann. § 77-1340.” See Note, supra, 37 Ark. L. Rev. 293, 304. It is usual for a warehouseman to act both as a warehouseman who stores grain and as a dealer in grain. These are two distinct roles. Act 401 regulates warehousemen only when they are acting as warehousemen. Arkansas has no statutory regulation of grain dealers. Section 3 of Act 401 recognizes this dual role when it refers to “a warehouseman who is also in the business of buying and selling such goods. . . .”
We are also especially persuaded by the emergency clause which reveals the true purpose of the act:
It is hereby found and determined by the General Assembly that Arkansas grain producers are experiencing severe losses due to their stored grain in public warehouses being sold or encumbered by the public
grain warehousemen without their authorization, and that this Act is immediately necessary to clarify the law and grant protection to Arkansas farmers. (Italics supplied.)
It is a rule of statutory construction that the emergency clause of an act can be used in determining the intent of the legislature. Missouri Pacific Railroad Co. v. Kincannon, 203 Ark. 76, 156 S.W.2d 70 (1941). This clause is consistent with the title of the act which reads:
An ACT to Provide That Ownership of Grain Shall Not Change by Reason of Delivery Thereof to Public Warehousemen and Title to Grain in the Possession of Public Grain Warehousemen Does not Pass to Such Warehousemen Unless the Owner of the Grain Has by Written Document Signed by the Owner of the Grain Transferred Title to the Warehousemen; and for Other Purposes (Italics supplied).
Furthermore, the Arkansas State Plant Board, which is the agency charged with admninistering Act 401, interprets the act to apply only to grain stored, not sold. The trial court ignored evidence of this interpretation and only allowed a proffer of the testimony. It was not only admissible, it was relevant because an administrative interpretation is to be regarded as highly persuasive. Bramley School Dist. No. 35 v. Right, 206 Ark. 87, 173 S.W.2d 125 (1943).
The act specifically amends by reference the Uniform Commercial Code provision which allows buyers in the ordinary course of business to take free of any claim under a warehouse receipt. Ark. Stat. Ann. § 85-7-205 (Supp. 1983). Section 3 of Act 401 amends that code provision so that soybeans and other specified grains are excepted; no longer is title voidable — it is void unless a farmer signs a document authorizing the sale or encumbrance of his grain. This was a radical step by the General Assembly pertaining to warehouse receipts but to conclude that the intent was to make it possible to void all sales as well would be to rewrite the act. There was no warehouse receipt in this case.
For all these reasons we conclude that the trial court was wrong in applying Act 401 in this case. We need not address the other questions raised by Continental. Neither party vigorously contended that Continental was not an innocent purchaser; i.e., that Continental was aware that Harrisburg did not have good title to the grain. There was only testimony by one of Continental’s managers that he had heard rumors that Harrisburg was having financial trouble and that they heard the same about many elevators at the time.
In order to defeat the sale, Wright would have had to prove that Continental was not a good faith purchaser for value. Ark. Stat. Ann. § 85-2-403 (Repl. 1981). Since that was not proven, Wright cannot recover from Continental.
Reversed.
George Rose Smith and Dudley, JJ., dissent.
Missouri v. United States Bankruptcy Ct., 647 F.2d 768 (8th Cir. 1981).
Some states do have such regulations. See e.g., Ill. Ann. Stat. § 114 Par. 701 et seq. (Supp. 1984); Mo. Stat. 276-401 et seq. (Supp. 1985); Wyo. Stat. § 11-11-101 etseq. (1983). | [
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George Rose Smith, Justice.
The Controlled Substances Act was amended in 1981 to provide for the forfeiture of all moneys used or intended to be used to facilitate a violation of the Act. The amendment also provides that all moneys found “in close proximity” to forfeitable controlled substances or to forfeitable drug manufacturing or distributing paraphernalia are presumed to be forfeitable. The burden of proof to rebut the presumption is on the claimant to the property. Ark. Stat. Ann. § 82-2629 (a)(6) (Supp. 1983). Forfeitable property other than drugs includes equipment of any kind used or intended for use in delivering controlled substances and all property used or intended for use as a container for controlled substances. Section 82-2629 (a) (1), (2), and (3).
The question here is whether the State was entitled to confiscate $3,000 and $1,770 found in separate rooms in a house occupied by the appellant Cleofas Limón and by Jennifer Taylor, in Rudy, Arkansas. On Limon’s petition to release the money the circuit judge held that Limón is entitled to the return of the $3,000, but not of the $1,770. An appeal and cross appeal bring both issues to us under Rule 29 (1) (c).
Acting under a search warrant, police officers searched the house and found on a shelf in the bathroom a plastic bag containing $1,000 and another containing $770. Those bags were next to a third bag containing an ounce of marihuana. The officers also found in a kitchen drawer a total of $3,000 in two plastic bags, along with “boxes of plastic bags and aluminum foil and so forth.” Other drug paraphernalia were on the kitchen table. Within ten feet of the money was a vial containing a residue of white powder which, according to the arresting officer, Limón identified as cocaine. Other indications of drug activity within the residence included marihuana residue in two suitcases, a tin box containing marihuana, a tray containing about a fourth of an ounce of marihuana, three pipes, and five vials.
Limón was later charged with possession of a controlled substance with intent to deliver. A forfeiture is nevertheless an in rem civil proceeding, independent of the criminal charge and to be decided by a preponderance of the evidence. Morley v. Fifty Cases of Whiskey, 216 Ark. 528, 226 S.W. 2d 344 (1950); Leach v. Cook, 211 Ark. 763, 202 S.W. 2d 359 (1947); Kirkland v. State, 72 Ark. 171, 78 S.W. 770, 65 LRA 76, 105 Am. St. Rep. 25, 2 Ann. Cas. 242 (1904). This being a civil case, we set aside the trial judge’s findings if they are clearly erroneous. A.R.C.P. Rule 52 (a).
“In close proximity” simply means “very near.” For that reason it has been said that the meaning of the term in such a statute is to be determined on a case-by-case basis. Bozman v. Office of Finance of Baltimore County, 445 A. 2d 1073 (Md. App. 1982), aff’d 296 Md. 492,463 A. 2d 832 (1983). We agree with that approach and do not mean by this opinion to suggest rigid rules for fixing “close proximity” by a particular number of feet, by reference to particular rooms, or by any rule of thumb. Here the two plastic bags containing $1,770 were next to a bag of marihuana. The $3,000 was in two plastic bags in a kitchen drawer along with boxes of plastic bags and aluminum foil. Other drug paraphernalia were on the kitchen table; the cocaine vial was nearby. We think the preponderance of the evidence places all the money, not merely the $1,770, in close proximity to controlled substances or drug paraphernalia. That being true, all the money is presumed under the statute to be forfeitable. There is no burden on the state to show separately a specific intent that the money is to be used in exchange for drugs, because the statute provides that money found in close proximity to forfeitable articles is “presumed to be forfeitable.” § 82-2629(a)(6), supra.
The question, then, is whether Limón and Ms. Taylor overcame the presumption. The two, though not married, had lived together for five years and regarded their property as belonging to them both. They testified that the total of $4,770 had come from the sale of a car six months earlier. They did not explain why they had kept such large sums in plastic bags for so long, except that Ms. Taylor did say, “I just don’t desire to open a bank account.” At one point she said that the car had been in her name and that the money was hers, but otherwise she referred to both the money and the car as being their property. The trial judge evidently did not accept Ms. Taylor’s claim to sole ownership, for he forfeited the $1,770 found in the bathroom. He seems to have overlooked the statutory provision that money is subject to forfeiture if found in close proximity to drug paraphernalia, for his written opinion mentioned only proximity to controlled substances.
There were also strong indications that the money was to be used immediately for the purchase of drugs. At the time the house was searched, both Limón and Carl Jacobs were arrested there. An officer testified that Limón told him at the time that he was negotiating to buy marihuana from Jacobs for $400 a pound. Called back to the witness stand to rebut that statement, Limón was evasive. He admitted having told the officer that he wouldn’t give more than $400 for marihuana and having said, “Well, it’s probably not worth more than $400.” When Jacobs was arrested along with Limón, Jacobs had a plastic bag of marihuana on his person and 15 pounds of it in his vehicle outside the house. When we consider the evidence of joint ownership, the proof of extensive drug activity in the house, Limon’s apparent negotiations to buy marihuana at $400 a pound, and the close proximity between the $3,000 and the cocaine and drug paraphernalia in the kitchen, we are convinced that the preponderance of the evidence clearly shows that the $3,000 as well as the $1,770, was subject to forfeiture.
Affirmed on direct appeal, reversed on cross appeal.
Purtle, J., dissents. | [
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George Rose Smith, Justice.
This action was brought by the appellant, Southwestern Bell, to recover for damage to its underground cables caused by the appellee, Mid-State Construction Company. Mid-State counterclaimed for the amount of needless expenses incurred as a result of Southwestern Bell’s misrepresentation of the location of the cables and negligent failure to relocate them as promised. The jury awarded Southwestern Bell $216.34 on its complaint and Mid-State $4,110.40 on its counterclaim. Southwestern Bell appeals on the single ground that the verdict against it is not supported by sufficient evidence. Rule 29(1 )(o) brings the case to us.
We cannot reach the merits of the appeal, because the issue was not properly raised below. Counsel did not file a motion for a directed verdict on the counterclaim and instead sought to question the sufficiency of the evidence by a motion for a new trial. That procedure was formerly permissible, but more than a year before the trial we amended Civil Procedure Rule 50(e) to eliminate that method of questioning the opposing party’s proof. The change was desirable, for if a party cannot produce substantial evidence to support his claim, a new trial would be useless.
The controlling Rule, since the 1983 revision, has read as follows:
(e) Failure to Question Sufficiency of the Evidence. When there has been a trial by jury, the failure of a party to file a motion for directed verdict at the conclusion of all the evidence, or a motion for judgment notwithstanding the verdict, because of insufficiency of the evidence will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the jury verdict.
The Reporter’s Notes were amended to call attention to the deletion:
Rule 50(e) is amended to omit the reference to the motion for new trial as a means of challenging the sufficiency of the evidence. Motions for directed verdict and judgment notwithstanding the verdict are used to challenge the sufficiency of the evidence.
In Re: Amendments to the Rules of Civil Procedure, 279 Ark. 470, 651 S.W.2d 63 (1983). The issue that Southwestern Bell seeks to present to this Court has been waived.
Affirmed. | [
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Per Curiam.
Petition for Writ of Prohibition is denied. Purtle, J., would grant. | [
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Robert H. Dudley, Justice.
The Board of Directors of the City of Little Rock adopted an ordinance which pro posed the annexation of fifteen separate tracts of land, designated “A” through “O.” An election was held, and the vote was in favor of the annexation, both in the City and in the previously unincorporated area. Appellant, who owns land in tract H, and others challenged the annexation in circuit court. All of the challenges, excepting appellant’s, were dismissed. Appellant contends that tracts A, B, C, G, K, and O were annexed in violation of Ark. Stat. Ann. § 19-307.1 (Repl. 1980). The trial court upheld the annexation. We affirm. Jurisdiction to construe the annexation statute is in this Court. Rule 29(1 )(c).
The rules controlling appellate review of annexation cases in Arkansas are well settled. A majority of electors voting in favor of annexation make a prima facie case for annexation, and the burden rests on those objecting to produce sufficient evidence to defeat the prima face case. City of Crossett v. Anthony, 250 Ark. 660, 466 S.W.2d 481 (1971); Faucett v. City of Atkins, 248 Ark. 633, 453 S.W.2d 64 (1970); Mann v. City of Hot Springs, 234 Ark. 9, 350 S.W.2d 317 (1961). By the very nature of this type of litigation, there is a wide latitude for divergence of opinion and consequently, a high degree of reliance must be placed upon the findings of the trial judge. Faucett v. City of A tkins, 248 Ark. 633, 634, 453 S.W.2d 64, 66 (1970). This court’s task is not to decide where the preponderance of the evidence lies, but solely and simply to ascertain whether the trial court’s findings of fact are clearly erroneous. ARCP Rule 52.
Ark. Stat. Ann. § 19-307.1 in its pertinent part provides:
Any municipality may . . . adopt an ordinance to annex lands contiguous to said municipality, provided the lands are either (1) platted and held for sale or use as municipal lots; (2) whether platted or not, if the lands are held to be sold as suburban property; (3) when the lands furnish the abode for a densely settled community, or represent the actual growth of the municipality beyond its legal boundary; (4) when the lands are needed for any proper municipal purposes such as for the extension of needed police regulation; or (5) when they are valuable by reason of their adaptability for prospective municipal uses.
Provided, however, that contiguous lands shall not be annexed when they either: (1) have a fair market value at the time of the adoption of the ordinance of lands used only for agriculture [agricultural] or horticulture [horticultural] purposes and the highest and best use of said lands is for agricultural or horticulture [horticultural] purposes;....
The statute is disjunctive, and the annexation of the land is proper when the proof sufficiently complies with any one of the conditions. Faucett v. City of Atkins, 248 Ark. 633, 636, 453 S.W.2d 64, 67 (1970); Louallen v. Miller, 229 Ark. 679, 317 S.W.2d 710 (1958).
Since the sufficiency of the evidence is questioned, it is necessary that we review the evidence.
The area in the fifteen tracts comprises 12.6 square miles and has approximately 11,000 residents. For the past six years the City has used a voluntary annexation procedure which has left a very irregular boundary. One of the primary goals of this annexation is to square as many boundaries as possible in order to alleviate the irregular boundary impediment to furnishing urban services. There was testimony to prove that the City could afford to extend city services to each of the areas annexed.
Nine years ago the City employed a consulting firm to recommend ways to prevent rapid sub-standard growth in adjacent unincorporated areas. Subsequently, the City adopted a series of policies to provide for the deliberate and orderly expansion of the city boundaries. The goal of the policies is to prevent poor quality development which would have to be remedied when the tracts were later annexed.
With regard to tract A, the trial court found:
Tract “A” is an area of some seven hundred acres more or less. Located in this tract is a viable pecan orchard, some farm lands, and a substantial amount of lands being used for residential and commercial uses, along with the Little Rock Airport’s proposed expansion. This airport expansion would encompass some 20 acres of the northwest portion of the larger pecan orchard. Here again the lands in this tract are situated along the east belt freeway. Across that structure lies the rapidly developing industrial-port area. These lands have available development streets and all typical municipal utilities.
Various witnesses testified that: (1) there are a variety of land uses in the tract with 145 single-family units in existence for approximately 450 residents; (2) access to the tract exists by city streets; (3) city utilities are available; (4) the Municipal Airport Commission will purchase approximately one-fourth of the pecan orchard as a part of a fifty million dollar expansion of the airport; (5) the tract is surrounded on three sides by present city boundaries and on the fourth side by the Arkansas River; (6) the tract is substantially urbanized; and (7) the biggest part of the tract consists of platted residential development. The findings of the trial judge were not clearly erroneous, and the above constitutes evidence that the tract can be annexed as lands representing the actual growth of the City beyond its legal boundary. While a pecan orchard exists on a part of the tract, it is permissible to annex a tract of land if that tract is more valuable for city purposes than for agriculture, even if the one tract is more valuable for farming purposes than for city purposes. Fowler v. Ratterree, 110 Ark. 8, 160 S.W. 893 (1913).
The trial court’s finding of fact described B as follows:
Tract “B” of the annexed area has located within its boundary a mining pit which is in the northern portion of that particular tract. This is a quarry site. It is situated abutting the freeway and is adjacent to an area of residences to the east, thence into a commercial developed area and is also bounded by a rapidly developing port/industrial-commercial area to the north of the tract.
There was testimony that: (1) the tract has a population of 369, with 119 single-family units, 21 commercial uses, and one industrial use on 107.9 acres; (2) it lies between two intersections of a major interstate highway and constitutes a peninsula of unincorporated territory; (3) public access to the tract exists by city streets, and it has schools, a fire station, and utilities; (4) the largest part of the tract constitutes platted residential development; (5) a small part of the tract contains a quarry, with the balance of the quarry already being in the City; and (6) the tract is adjacent to the Little Rock Port Authority, and further industrial development is predicted. The tract may be annexed as lands platted and held for sale as municipal lots. A part of a quarry exists upon a segment of the tract, but that quarry is only a small part of an area which is already developed for residential, commercial, and industrial uses. The facts of this case are clearly distinguishable from those in Saunders v. City of Little Rock, 262 Ark. 256, 556 S.W.2d 874 (1977), where the City sought to annex lands which contained 5,000 to 10,000 acres of mining lands.
With regard to tracts C and G, the trial court found:
The acreages in tracts “C” and “G” are in part situated within the floodplain and floodway of Fourche Creek. There are low areas in tracts “C” and “G” which will probably never be developed. The City plans to acquire some lowlands and simply leave these lands as they are now and turn them into parks and green belts. The City does have “proposed plans” for draining some of the lands within these areas. Without question, there are lands within these areas which are now developed, and now being used for municipal purposes. Likewise, some of the undeveloped lands within these areas are presently and will continue to be placed to municipal uses within the immediate future. Access is in place, along with the typical municipal utilities.
Witnesses testified that: (1) 8,000 people reside in tract C in 1,956 single-family units and 395 multi-family units; (2) the tract has 82 commercial uses and 19 industrial uses; (3) rapid development of the tract has caused land-use problems; (4) the area has city water and sewer services as well as municipal utilities; (5) a small part of the tract lies in the floodplain; and one of the city’s reasons for annexation of the area is to control development of the floodplain; and (6) the City would establish a “green finger” belt along a major stream in the tract to enhance proper drainage as well as open space and a park.
The testimony about tract G established: (1) there are 2,030 people in 630 single-family units and 31 multi-family units in the 2,615 acre tract; (2) there are 20 commercial uses and 9 industrial uses of the tract; (3) it represents the growth of the City beyond its boundaries; (4) it has sewer and water districts developing without benefit of municipal controls; (5) the City has already purchased 80 acres and plans to acquire 100 to 160 more for the development of parks and for drainage purposes; and (6) the Master Parks Plan includes an impoundment for the control of flood waters. Tract C meets the criteria of furnishing an abode for a densely settled area, and tract G represents the growth of the City beyond its boundaries.
Appellant argues that, since parts of section C and G are in the floodplain and floodway, they are not proper lands for annexation. For authority, he relies on Saunders v. City of Little Rock, 262 Ark. 256, 556 S.W.2d 874 (1977), and City of Little Rock v. Findley, 224 Ark. 305, 272 S.W.2d 823 (1954). His reliance on those cases is misplaced as the facts of those cases are distinguishable from the case at bar. Here, only a small part of the tracts lies in the floodplain, and a large part is already developed. In Saunders, twelve square miles of floodlands were proposed to be annexed. In addition, the City had no plan for using or draining the floodlands, while the evidence here is that the City has developed an extensive flood control program. In Findley, we held that there was substantial evidence to uphold the trial court’s finding that lands were inappropriate for annexation. However, we commented that the evidence preponderated in the City’s favor.
The trial court’s finding of fact described tract K as follows:
In Tract “K” is a region to the west of the present city limits. It is without residential structures of significance. It is in the path of natural expansion of the City’s westward development. There is only one small platted area which is in the northwest corner of the tract. There are no water or sewer improvement districts extending into the tract; however, those utilities districts have expanded the eastern boundary of this property.
There was testimony that section K was: (1) under intense development pressure because it is adjacent to Pleasant Valley, a prestigious subdivision; (2) the Pleasant Valley Country Club extends into the tract for approximately one mile; (3) there are condominium developments and estate size lots along Hinson Road in the lower portion of the tract; (4) there are large single-family lots and subdivision developments off Ridgehaven Road in the north part of the tract; (5) it has electricity, sewer, and water services; and (6) it is in need of the City’s police powers for zoning and land use controls. The above constitutes evidence that tract K is held for urban development.
The cases cited by appellant as barring annexation are inappropriate. In Parrish v. City of Russellville, 253 Ark. 1000, 490 S.W.2d 126 (1973), the land was more remote from the City and its services, and only 785 acres of the 6,398 annexed were anything other than farms and forest. In Vestal v. Little Rock, 54 Ark. 321, 16 S.W. 291 (1891), that part of the land which was located on the north side of the Arkansas River would be taxed but would not receive any benefit from annexation.
The trial court found that:
Tract “O” consists of a very thin strip of totally wild and undeveloped land. Tract “O” is situated between Walton Heights, an area of fine homes, and the Little Maumelle River. The land in Tract “O” is not platted. The terrain is cliff-like upward from the river. The existing access to this 188.3 acres which comprises Tract “O” is presently limited to the extreme northwest corner of the tract. There exists no streets or roads traversing this property; however, the City is interested in the property as it extends its utilities westwardly; by reason of the Little Maumelle River this area has an attraction as a park site or green belt. The annexation of this tract would extend the city limits to a natural boundary, Little Maumelle River. This area is of significance to the City in its obligation to afford police and fire protection to the residents of Walton Heights and other of its citizens that reside in the area.
Witnesses testified that most of tract O is: (1) a narrow strip of land situated between the Walton Heights subdivision and the Little Maumelle River, with a steep downgrade to the river; (2) it has, in part, a development potential similar to the Walton Heights and Robinwood subdivisions as there is great interest in lots with scenic river views; (3) the riverbank property has a boat ramp which can be developed into a marina; (4) the City has started River Mountain Park, a big metropolitan park which would extend from Murray Park westerly, and it has already purchased 685 acres in the area, including the land on the opposite side of the Little Maumelle River which lies south of the Arkansas River; (5) part of the tract is ideal for the “green finger” concept of open space park land, while another part will serve as a corridor for major water and wastewater utility lines.
It is proper for a city to annex property if it is needed for the purpose of making improvements and if value of the land is derived from actual and prospective use for city purposes. Brown v. Peach Orchard, 162 Ark. 175, 257 S.W. 732 (1924), and Kalb v. City of West Helena, 249 Ark. 1123, 463 S.W.2d 368 (1971). Annexation is not prohibited simply because a tract is “rather rugged” and “heavily wooded” with sparse population. Kalb, supra.
The order of the circuit court in annexation cases will be upheld unless it is clearly erroneous. ARCP Rule 52. We cannot say the findings by the trial court in this case are clearly erroneous.
Affirmed.
Purtle, J., dissents. | [
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David Newbern, Justice.
The question presented here is whether a drainage district may add lands, after the improvements have been completed, on the basis that the lands to be added benefit from the improvements. The answer to this question requires interpretation of Ark. Stat. Ann. § 21-514 (Repl. 1968), thus our jurisdiction rests on Arkansas Supreme Court and Court of Appeals Rule 29 l.c.
It is undisputed that the improvements constructed by the district were completed prior to its petition to add to the district lands owned by the appellants and others. There are provisions for adding lands benefited by a district’s improvements after completion. Ark. Stat. Ann. §§ 21-534, 21-536 and 21-537 (Repl. 1968). However, they permit annexation only when a “slough, marsh or lake” has benefited by having been connected to drainage ditches or conduits constructed by the district.
The district did not rely on §§ 21-534, 21-536, and 21-537. It has from the outset contended that it could annex the lands of the appellants pursuant to Ark. Stat. Ann. § 21-514 (Repl. 1968) despite the undisputed fact that the district’s improvements had been completed some four years prior to the filing by the district in the circuit court below of its petition seeking to add the new lands.
Section 21-514 provides that if the district’s commissioners determine that “lands not embraced within the boundaries of the district will be affected by the proposed improvement” they should report their assessment of the estimated benefits to the court. The lands may be added if it is found they will benefit. The district would have us ignore the word “proposed” in the statutory language, yet it has supplied neither reason nor authority for us to do so.
We need not recite the entire statutory scheme for creation of drainage districts to point out that it makes sense to follow the literal meaning of § 21-514. It is enough to note that it gives owners of the land to be added notice that they are likely to be assessed for the benefit to them of the proposed improvement. It allows them to protest the construction of the improvement before their lands are affected.
In Bayou Meto Drainage Dist. of Lonoke County v. Ingram, 165 Ark. 318, 264 S.W. 947 (1924), a district was allowed to alter its plan prior to completion of the improvement. The alteration resulted in benefits to lands not theretofore included in the district. We looked to the general legislative purpose of drainage districts and said an improvement would not be deemed to have been completed if it were found to be abortive just prior to finishing the planned construction. The additional construction needed to complete the improvement was allowed, and we said:
If the statute authorizes the change of plans and extension of boundaries after the approval of the original plans and the assessment of benefits, then it follows that it may be done at any time before the improvement is completed, for there is no other period in the proceedings at which the authority may be limited. [165 Ark. at 326; 264 S.W. at 949]
While the Bayou Meto opinion seemed primarily to rely on other sections, although mentioning § 21-514, its theme is obviously consistent with the notion expressed here that landowners whose property is to be assessed to pay for an improvement should have notice and an opportunity to object before the “benefit” is conferred upon them.
The principal case cited by the district is Mudd v. St. Francis Drainage District, 117 Ark. 30, 173 S.W. 825 (1915). As other cases cited by the district, the Mudd case involved a district created by a special legislative act and added to by a further legislative act. The district would have us find this special legislative action to be persuasive toward holding lands benefited may be added to a district where the construction is complete. To the contrary, we find those special legislative Acts have nothing to do with the interpretation of § 21-514 which both parties assert as controlling the outcome of this case.
In permitting the district to proceed with the proposed addition of the land of the appellants and others, the circuit court apparently misinterpreted § 21-514 to allow the addition despite the fact that the improvement was no longer “proposed” but had been completed.
Reversed. | [
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Per Curiam.
Appellant, Edward L. Wing, by his attorney, Darrell E. Baker, Jr., Deputy Public Defender for Washington County, has filed a motion for rule on the clerk.
The motion admits that the record was not timely filed and it was no fault of the appellant. His attorney admits that the record was tendered late due to an error on his part.
We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979).
A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
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George Rose Smith, Justice.
At separate trials in municipal court William M. Janes was convicted of DWI, second offense, and Deanna Jesson was convicted of DWI, first offense. On appeal to the circuit court the cases were consolidated and tried together. No witnesses testified, the case being submitted to the trial judge, without a jury, on documentary evidence introduced by the State and on a memorandum brief submitted on behalf of both defendants by their attorney. The court found each defendant guilty and imposed sentences within the limits set by Act 549 of 1983, the Omnibus DWI Act. This case, like many other DWI cases on the docket, comes to us under Rule 29(1 )(c). Three arguments are presented.
First, it is argued that the act is unconstitutional because it permits the punishment for a second offense to be enhanced without regard to whether the first conviction was counseled or uncounseled. A sufficient answer to this argument is that if a defendant did not have counsel and did not waive counsel when he was first convicted, that conviction cannot be used for enhancement, and if it is so used the error can be corrected on appeal. Lovell v. State, 283 Ark. 425, 678 S.W.2d 318, 681 S.W.2d 395 (1984). There was no need for the lawmakers to recite in the act a rule that would be applicable anyway.
Though not argued in the brief, it has been suggested at our conference that the State’s proof is insufficient because its documentary evidence did not include a copy of Janes’s previous conviction, nor is there any other evidence about that conviction. That objection was not made below. At the trial defense counsel elected not to argue the case except by the submission of a written brief. The brief contains on this point only the argument we have mentioned, that the statute is unconstitutional. Janes has not denied that he has a prior DWI conviction. We have consistently held that where there is a particular defect in the State’s proof that might readily have been corrected had an objection been made, the absence of any obj ection prevents the point’s being raised for the first time on appeal. For instance, where the State’s proof by accomplices is not corroborated, the absence of an objection on that ground at the trial waives the omission. Harris v. State, 262 Ark. 506, 558 S.W.2d 143 (1977). In another analogous situation we said in Eskew v. State, 273 Ark. 490, 621 S.W.2d 220 (1981):
The second argument by appellants is that the evidence was insufficient to support the appellants’ conviction for class A. felony kidnapping. This may well be true but the fact remains that the appellants never requested an instruction on class C kidnapping, and the matter is raised for the first time on appeal. We need not cite authority for the proposition that we do not consider matters raised for the first time on appeal.
The appellants’ second contention is that the DWI statute violates the constitutional separation of governmental powers. That contention has been considered in prior cases involving this statute and need not be reconsidered. Tausch v. State, 285 Ark. 226, 685 S.W.2d 802 (1985); Williford v. State, 284 Ark. 449, 683 S.W.2d 228 (1985).
The third argument is that the statute’s requirement of a pre-sentence report compels the defendant to incriminate himself. Ark. Stat. Ann. § 75-2506 (Supp. 1983). The act does not require a defendant to take any action whatever in response to the State’s proof or to the pre-sentence report; so obviously there is no compulsory self-incrimination.
Affirmed.
Purtle, J., dissents. | [
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Hughes, J.
(after stating the facts). The exception of the appellant to the court’s ruling permitting the original mortgage from Ward to Melindy to be read in evidence was too general and indefinite. As was said in Vaughan v. The State, “appellant should have been ingenuous and fair to the court, ‘laying his finger’ upon the particular point in the court below which he is insisting, upon here.” 58 Ark. 353; see also Railway Co. v. Murphy, 60 Ark. 333; Elliott on Appellate Proceedings, 726.
It was not' competent to prove by Brown, the register of deeds, the records of his office. They might have been shown by a certified copy thereof authenticated as required by the laws of congress, or by an examined copy duly made and sworn to by any competent witness. The best evidence must be resorted to, and secondary evidence is not admissible, until it is shown that the primary evidence cannot be obtained.
The record relating to this mortgage should have been authenticated as required by section 906 of the Revised Statutes of the United States (which is familiar to the bar) before it could be read in evidence, and not having been so authenticated, and there being no examined copy made and sworn to as required by law, it was error to admit it, to show a lien in favor of the plaintiffs upon, or a right to possession of, the property in controversy by the plaintiff, under the laws of Kansas.
eTfc[eSran0®t,p inappea1'
There being no showing or mention in the bill of exceptions that the duly certified copy sent up in response to the writ of certiorari was filed or read as evidence in the case, we cannot find that it was read as evidence on the trial, as we must look alone to the bill of exceptions for the evidence in the case. If it had mentioned that this authenticated copy was read in evidence, the fact that it had been left out would make no difference, after it had been supplied by certiorari. If it was read as evidence in the trial of the case, the bill of exceptions might have been amended to show that fact.
We find no error in the instructions of the court.
There was no evidence to support the findings below. Wherefore the judgment is reversed, and the cause is remanded for a new trial. | [
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Wood, J.
Plaintiff, Anderson, brought ejectment against defendant, Greer, for a tract of land in Lee county. Both parties deraign title from the heirs of one G. W. Wilcox, deceased. The plaintiff claims under a conveyance from the g'uardians of said heirs, and the defendant claims under a deed from one of these heirs, the sole survivor, after she became of age. The cause was tried and determined by the court below, sitting as a jury, upon the following agreed statement : “It is stipulated and agreed between the plaintiff and defendant that the records of the probate court of Phillips county, Arkansas, show no report of sale made by the guardians of Elizabeth J., Martha J., and Lucinda Wilcox, or confirmation made of such sale by said court, and that, if the deed of such guardians to Thomas M. Jacks, filed as exhibit D, or No. 1, to plaintiff’s complaint, passed the legal title of such minors, without the confirmation of such sale by said probate court, then plaintiff is entitled to a verdict.” The court made a general finding in favor of plaintiff, and rendered judgment accordingly.
1. A sale by a guardian under an order of the probate court is a judicial sale, and such sales are incomplete until they are reported to and confirmed by the court. Afel v. Kelsey, 47 Ark. 413; Reid v. Hart, 45 Ark. 41; Guynn v. McCauley, 32 Ark. 97; Rorer, Jud. Sales, secs. 1, 7, 13, 16, inclusive, and sec. 124, and authorities cited in note.
The guardian’s sale upon which appellee relies was made under the act of 1846, which provides that the sale “shall be conducted as the court may direct, and upon terms approved by the court.” Nothing more is required to show that the court is the vendor in sales made under the act. The contention that the purchaser would take a title if the deed showed that the order of the court had been fully complied with is unsound. Nor is it correct to say that the sale had been confirmed in advance, provided only the terms of the order were fully complied with. The deed itself does not show upon its face that the sale had been reported to and confirmed by the probate court.
Under the act the guardian or other functionary designated by the court to make the sale receives directions from, and is to make the sale upon terms approved by, the court. But the act of confirmation sets the seal of the court’s approval upon what has been done — not upon what is to be done. It is just as essential for the court to approve what has been done, as to direct in the first instance how it shall be done. It is incongruous to speak of the court’s having confirmed a sale before the sale takes place. It must be remembered that, in sales of this character, the whole matter after the sale remains in fieri, and under the control of the court, until confirmation. Rorer, Jud. Sales, secs. 126, 128; 12 Am. & Eng. Enc. Law, 219, note; Reid v. Hart, supra.
Courts m.ay generally be expected to confirm sales which have been conducted according to the directions and upon the terms prescribed by them, unless intervening circumstances should make it unwise or unjust to do so. But they are not compelled to confirm them, and no purchaser at such a sale has the right to rely absolutely upon the order of the court directing the sale,, and the fact that the agent of the court has pursued the terms prescribed in making the sale. See authorities last cited, supra.
2. The doctrine of title by lapse of time, acquiescence, or ratification, can not be invoked as against the true owner in possession. Rorer, Jud. Sales, secs. 125-135.
This disposes of the second contention of appellee’scounsel. We find nothing in this record to justify the application of the doctrine they invoke.
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Wood, J.
The questions in this case as stated by
the appellant are: (1) Is the marriage contract void because it was acknowledged before an officer not authorized by the statute to take it? (2) If the contract be valid, should the widow be allowed dower out of the estate acquired by her husband after the marriage? (3) If the contract be not void, and if she be not entitled to dower out of the property obtained after the making of the contract, has she not a right in equity to charge the estate with all sums due her for the rental value of the land mentioned in the contract, which was used and enjoyed by her husband during his life time?
All these questions must be answered in the negative.
1- It is unnecessary for us to discuss the question as to whether the antenuptial contract between Joel E). Bryan and Mary Belle Douglas is or is not void by reason of the acknowledgment having been taken before a notary public, instead of before a court of record, or some judge or clerk of a court of record, as provided in sec. 4899, Sand. & H. Dig. Por, under the curative act of 1885, and the decisions of this court construing such acts, whatever defects there were in the acknowledgment, rendering the deed ineffectual to convey the title, were removed, and the deed was, after such act, as good and valid to carry out the intent of the parties to it as though the acknowledgment had been properly taken in the first instance. Cupp v. Welch, 50 Ark. 294, and authorities cited; Sidway v. Lawson, 58 Ark. 117.
Dower barred by jointure.
2. The widow cannot have dower out of the estate of her husband acquired after the marriage, for the reason that the antenuptial contract into which she entered deprives her of the right to claim dower. That contract, so far as it is necessary to make clear the point, is: “To have and to hold the said lot and parcel of land as aforesaid as jointure and in lieu and full satisfaction of her whole dower .in his estate. And the said Mary Belle Douglas, being of lawful age, and being well advised, in consideration of the premises, and of one dollar paid her by the said Joel E. Bryan, doth for herself, her heirs, executors and administrators, covenant and agree with him that the said lands so conveyed to her shall be in full satisfaction of her said dower in his estate, and shall bar her from claiming the same, if she shall survive him after the said marriage. And, further, that if the said marriage be had, and she survive him, she will not claim or demand any share of his personal estate under the statutes of distribution, or otherwise.” To construe the above instrument merely as an agreement not to claim dower in the estate of the husband at the time of the marriage, and as not barring dower in property afterwards acquired, would be ignoring the plain meaning of the words employed. “In lieu and full satisfaction of her whole dower” means that she surrenders all claim to dower. The words are too plain to be explained. Besides, the effect of jointure, which this'conveyance is, if accepted, is to bar dower. Sand. & H. Dig., secs. 2528-2531, inclusive; Grogan v. Garrison, 27 Ohio St. 50; Wentworth v. Wentworth, 69 Me. 247; Culberson v. Culberson, 37 Ga. 296; Andrews v. Andrews, 8 Conn. 79; 1 Wash. Real. Prop. pp. 324, 330, sec. 17; Tevis' Ex'rs. v. McCreary, 3 Metc. (Ky.) 151; Vance v. Vance, 21 Me. 364; Perry v. Perryman, 19 Mo. 469; Miller v. Goodwin, 8 Gray (Mass.), 542. See, also, Charles v. Charles, 56 Am. Dec. 155.
o? foiúufre0”
3. The wife does not come into possession of the provision made for her by her husband, as jointure, until his death. Jointure is defined to be “a competent livelihood of freehold for the wife of lands and tenements, to take effect in profit and possession presently after the death of the husband, for the life of the wife at least.” 2 Blackst. Com. 137. “One mode of barring the claim of a widow to dower,” says Mr. Washburn, “is by settling upon her an allowance previous to marriage, to be accepted by her in lieu thereof. * * * But in order to have such provision operate as a bar to dower, it must take effect immediately upon the death of the husband.” 1 Wash. Real Prop. ch. 8, sec. 1-6. See, also, authorities cited supra, from appellees’ brief. These authorities show that the appellant is not entitled to rent for the lands conveyed,to her as jointure.
The judgment of the circuit court is affirmed. | [
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Bunn, C. J.,
(after stating the facts). Does the evidence make out a case against the appellant company? At the time of the injury the appellee, Ding-man, was not at a crossing, but, according to his own statement, was walking along the track at a place where he had no right to be. He knew that it was about the hour for the passenger train of appellant to pass along the track at the place where he was walking, but he made no reasonable effort, by looking or listening, to inform himself of the approach of such train. These circumstances clearly show that he was guilty of negligence directly contributing to his own injury. Martin v. Railway Co., ante, p. 156; Railway Co. v. Cullen, 54 Ark. 431; Railway Co. v. Tippett, 56 Ark. 459.
As Dingman was struck while upon or near the track, and as he was not seen by the employees in charge of the train, there is sufficient evidence to support the finding that they were negligent in not keeping a proper lookout. The only question, therefore, is whether, under the act of April 8th, 1891, the appellant company is liable, notwithstanding the contributory negligence on- the part of appellee.
On this point the case is controlled by the case of St. Louis, I. M. & S. Ry Co. v. Leathers, ante. p. 235. Iu that case it was held that although the railway company may have been negligent in failing to keep a lookout, yet the plaintiff cannot recover if his own negligence directly contributed to the injury of which he complains. The ruling announced in that case we believe to be supported by reason and the decisions of this court.
Inability of railroads for failure to keep a lookout.
Por many years before the passage of the act of April 8th, 1891, the courts of this state followed and enforced a rule of law that required employees in charge of railroad trains to keep a lookout for stock upon the track, and also to keep a lookout at crossings to avoid injuring travelers along the public highway. L. R. & Ft. Smith Ry. v. Holland, 40 Ark. 336; Railway Co. v. Cullen, 54 Ark. 434.
Notwithstanding this rule required a lookout to be kept', and made the company liable for damages occasioned by a failure to keep such lookout, yet no one ever doubted that negligence on the part of the plaintiff, whose person or property was injured, directly contributing to the injury, would be a sufficient defense for a failure to keep such a lookout. The doctrine of contributory negligence was frequently applied, and the plaintiff denied a recovery for injuries occasioned by negligence of the company when he was also guilty of negligence contributing to his own injury. Railway Co. v. Cullen, 54 Ark. 434; Railway Co. v. Tippett, 56 Ark. 459; St. Lotus, I. M. & S. Ry. Co. v. Ross, 61 Ark. 617.
In ordinary cases of killing stock, the rule of contributory negligence rarely applies, for the reason that it is the custom of the country to allow stock to go at large upon “the range,” and when the railway track is not enclosed the owner is usually not guilty of negligence if his stock stray upon it. You cannot impute negligence to a horse or an ox; but if the owner of such an animal should carelessly drive it upon the track, or in any other way be guilty of negligence contributing to its injury, the rule would apply. This is shown by the case of Johnson v. Stewart, ante, p. 164, where the question is fully discussed.
This rule requiring the employees in charge of a train to keep a lookout for stock was changed by the decision in M. & L. R. R. Co. v. Kerr, 52 Ark. 162, where it was held that they were under-no duty to keep such lookout. Soon-afterwards the legislature passed the act in question, requiring employees in charge of railroad trains to keep a lookout both for persons and property upon the track. The rule that, with certain exceptions, prevents a recovery by one for an injury to which his own negligence has directly contributed has been long enforced by the courts of this state, and was well known to the legislature, and if it had intended to abolish this rule by the act in question, it seems reasonable to believe that some reference would have been made to it in the act. But the act makes no reference to it, and does not purport to abolish the rule of contributory negligence in such cases. It simply requires the employees in charge of trains to keep a lookout, and provides that the railroad company shall be liable for all damages resulting from the failure to keep such lookout. It does not say that the contributory negligence of the plaintiff shall be no defense in such cases, or that the company shall be liable for accidents which would not have happened but for the carelessness of the plaintiff acting as a proximate contributing cause. In such cases the injury is caused, not by the negligence of the defendant only, but by concurring negligence of both plaintiff and defendant. “The law has no scales to determine, in such cases, whose wrongdoing weighed most in the compound that occasioned the mischief,” and the plaintiff cannot recover. Railroad Co. v. Norton, 24 Pa. St. 469; Whittaker’s Smith, Neg. 377, note.
The decision in Memphis & L. R. Railway v. Kerr, 52 Ark. 162, called the attention of the legislature to the fact that the law did not require the employees in charge of trains to keep a lookout for persons or property upon the track, and the legislature, by the act of April 8, 1891, remedied this defect by requiring a lookout to be kept. The act made an important and beneficial change in the law, for, before the passage of this act, if stock, or children top young to know their danger, got upon the track at a place away from a town or public crossing of a railway, and were injured by trains, the company could not be held liable, unless it was shown that the employees in charge of the train saw the children or stock in time to have avoided the injury. But now the company is liable if, by proper care and watchfulness, it could have discovered and avoided the danger. And so in other cases the company would be liable, under this act, for damages occasioned by a failure to keep a lookout, but we see nothing in the act to justify us in holding that a plaintiff may recover for injuries occasioned by his own carelessness. An adult who sits or stands upon a railroad track, where he has no right to be, and carelessly allows a train to strike him, is in the same condition now as he would have been before the passage of the act. If the company is negligent, he also is negligent, and he cannot recover unless he can show that the employees in charge of the train, after discovering his danger, failed to use ordinary care in avoiding it. We conclude that the rule of contributory negligence was not affected by the act in question, and that, under the facts of this case, the plaintiff cannot recover, and that the learned judge erred in instructing the jury. The judgment is reversed, and the cause remanded. | [
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Hughes, J.,
(after stating the facts). Was there error in the court’s refusal to instruct the jury that, unless the venue was proved beyond a reasonable doubt, the defendant could not be convicted? Upon this question there is diversity of judicial opinion, and it may be that a majority in number of the rulings are that the venue must be proved beyond a reasonable doubt. Bishop, in the first volume of his New Criminal Procedure, section 384, 2, says: “As in other issues, the proof is not required to be delivered in the words of the indictment. Any ordinary evidence suffices which in fact leads the jury to the conclusion, beyond, it is perhaps commonly assumed, a reasonable doubt. But we have some authority for saying that the doctrine of reasonable doubt does not extend to this issue, being only jurisdictional,” — citing Cox v. State, 28 Tex. App. 92; Achterberg v. State, 8 Tex. App. 463; Hoffman v. State, 12 Tex. App. 406, 407. To which we add: Richardson v. Commonwealth, 80 Va. 124; Andrews v. State, 21 Fla. 598; State v. Dent, 6 Rich. (S. C.) 383. We believe that this is the more reasonable view of this question, as the question of venue is a question affecting only the jurisdiction of the court, and does not in fact affect the question of the defendant’s guilt.
The venue must be proved, but the question is whether it must be proved beyond a reasonable doubt, dr by a preponderance of the evidence only. As Bishop says, it is often, and perhaps generally, assumed that it must be proved beyond a reasonable doubt, but we see no reason in this assumption. To hold that it may be proved by a preponderance of the evidence, and that the doctrine of reasonable doubt has no application where the quantum of proof required to show the venue in a criminal case is involved, deprives the defendant of no right, for it is only his guilt that is required to be proved beyond a reasonable doubt. We are of the •opinion that it is sufficient in a criminal prosecution- to prove the venue by a preponderance of evidence only. There was no error in the court’s refusal to give the instruction No. 2 asked by the defendant. The judgment is affirmed. | [
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Wood, J.,
(after stating the facts). 1. The appellee was duly incorporated under the laws of Minnesota. Its articles of incorporation and by-laws, which were in evidence, show that it is a mutual building and loan association, having the same plan or scheme as that in general use by such associations. Por a description of such associations, see note by Preeman in 69 Am. Dec. 151. The purpose of this association was to exact of appellant an obligation equal to the advancement which it had made her, together with the premium which she had bid for same, the whole amount being equal to the par value of her twenty shares of stock at maturity. And this purpose it carried out, as appears from the face of the note itself and the mortgage, as well as from the testimony of witnesses. While there is testimony to the contrary, it is improbable and unreasonable. The ruling of the trial court upon the issue of non est factum was correct.
This issue, however, is immaterial. Por, although the note specifies that, in case of default, the “whole amount of the note is at once due and payable,” and although the mortgage gives appellee, in case of default, “the election to foreclose for the whole of said principal sum,” still a court of equity would not decree for the full' amount of the advancement and interest, together with the premium. Such a decree would be tantamount to enforcing a penalty for breach of contract. Hagerman v. B. & S. Ass. 25 Ohio St. 205, 206. The evident design of the parties to this contract was to have the debt discharged according to the system peculiar to building and loan associations.
Rule for d“ount
This contract, then, binds the appellant to pay monthly installments of interest on the advancement, monthly dues on stock, until its maturity (not to exceed a period of nine years), and fines assessed for failure to make stock payments or dues as specified. Default having been made for more than six months in the pay'ment of the installments of interest and monthly dues, foreclosure proceedings were begun, and the only real question here is as to the amount of the decree.
The lower court charged the borrower with the whole amount of dues for nine years, and added to this sum the interest and fines in arrears at the institution of the suit. From this sum was deducted the amount of dues already paid on stock, and to the balance was added six per cent, interest per annum from the institution of the suit to date of the decree, making the sum of $1,260.70, for which decree was entered. Was this correct? The rule for determining the amount which we think most nearly enforces all the contract obligations is “to ascertain the amount of stated dues and interest which will become due during the future existence of the corporation, as estimated; then find the principal which, with interest for the supposed time, will amount to the dues and interest already calculated;, this will be the present value of the anticipated payments; to this principal add the arrearages due, and the fines for the time between the date of default and the entry of the decree of sale.”
It was in proof, by the actuary of the association, that the stock would have matured in ninety eight months. The date of the certificate of stock was June 11th, 1888. The date of the decree was August 17th, 1893. The time therefore for the stock to run before maturity from date of decree was 35% months. Dues, interest and fines were in arrears from April 11th, 1890, or forty months and six days. Then, from this data, applying the above rule, we have the following:
Dues, 35% months at $12.00 per month........ .$429 60
Interest on $1000 (advancement) for 35% months, at $5.00 per month........................ 179 00
Total, $608 60
Now, the principal which will amount to this sum in 35% months at 6. per cent interest is $516.20, which is ascertained by dividing the $608.00 by $1,179, the principal and interest on one dollar at 6 per cent for 35% months. The present value of the anticipated payments then is $516.20. To this add arrearages:
Dues 40 months at$12.00...................$ 480 00
Interest 40 months at $5.00.................. 200 00
Pines 40 months at $2.00 .................... 80 00
Total, $1,276 20
This sum represented the amount for which the mortgage should have been foreclosed. But the court rendered judgment for $1,260.70, making a difference in favor of appellant of $15.50. So it is clear that she has not been prejudiced by the decree. The above rule is that announced by the superior court of Cincinnati. Bndlich, Building Associations, sec. 386.
The rule, as announced in a leading case in Maryland, is “to ascertain by proof the probable duration of the society, then to estimate the aggegate amount of the weekly and monthly installments payable during that time, from that sum rebate a just amount of interest, and add thereto the arrearages due, after allowing for payments made to the society, and the sum thus ascertained is the amount which the mortgagee is entitled to receive in -prcesenti in satisfaction of the mortgage.” Robertson v. American Homestead Asso., 10 Md. 397; S. C. 69 Am Dec., and cases cited in note.
When fines enforcibe.
The application of this rule to the facts of this record would give substantially the same result as above. Either of these would bé just to the borrowing member and to the association. But we prefer the former, because it gives a simple, certain, and accurate method of arriving at the amount, whereas, by the latter rule, the amount of interest to be rebated is not fixed, but such as the chancellor may deem just. The rule we have approved is announced upon the basis of a final and complete foreclosure by sale of the property mortgaged, and a termination of appellant’s membership in the association. There is no intimation anywhere in the record that appellant desires or would be willing to continue her membership in the association. She repudiated the contract as a real building and loan contract, insisting that it only -binds her to repay the amount advanced at six per cent, interest, and that the mortgage only secured that amount, i. e., that the contract was for a straight loan.
2. The amount of the decree, under the rule announced, as well as the rule adopted by the trial court, includes fines for failure to make monthly payments. The by-laws authorise a fine of “ten cents per share to be imposed for each and every month the payment is not made.” The success of the building and loan association scheme depends upon the certainty and regularity with which members pay their dues. Fines, strictly as such, imposed merely by way of punishment for a breach of contract, a court of equity would not enforce. But what is usually designated as “fines” in a genuine building and loan association is intended for, and does subserve, a different purpose. They are treated by the best authorities as liquidated damages, fixed by consent of the parties, to/indemnify the association for the loss it has sustained by reason of the failure of the defaulting member to make prompt payments. Shannon v. Howard Mut. Bldg. Ass'n, 36 Md. 383; Ocmulgee Building & Loan Ass'n v. Thomson, 52 Ga. 427; 2 Am. & Eng. Enc. Law, p. 620, and authorities cited.
Dues being the vitalizing principle in the whole plan, and the measure of the prosperity of the whole depending upon the promptness with which each member discharges his obligation to every other to pay them, it is but just that each delinquent may contract as far as possible to make good the loss occasioned by him.
In most of the states, the legislature, recognizing that some such power is indispensable to preserve the equality of burdens, while each is sharing equally in the profits, has enacted laws providing for the imposition of fines. But, in the absence of such statutes, it is within the province of a court of chancery to enforce such an essential regulation, when adopted by the association. Those who become members or stockholders of an association having such a by-law, of course, approve and accept same, and should be bound thereby, provided said by-law be reasonable. Bndlich, Building Associations, 415; Shannon v. Howard Mut. Bldg. Ass. supra.
Mr. Bndlich, speaking of a member who defaults in the payment of dues, says: “He will be getting an advantage over and above his fellows; he will have had the use of his subscription money for a longer period than they had theirs, and, besides, he will have his proportionate share of the gains made upon all their prompt payments, whilst he will lose only the trifling amount that would have come to him as his proportionate share of the profits, which, if he had paid his dues properly, would have accrued from such payment in the interval between the day when it was his duty to make it and that upon which he did make it. It follows that the society is, in good conscience, entitled to be made whole for the injury resulting from tardy payments.” Endlich, Bldg. Ass. sec. 412. In Goodman v. Durant Bldg. & Loan Association, 14 So. Rep. 146, Chief Justice Campbell said: ‘ ‘What is called afine (merely an agreed sum as liquidated damages) is imposed for every default in payment, as a spur to prompt payment, so as not to derange the process of compounding, which must fail if there is want of payment as agreed, and failure of which would cause failure of the scheme. We see nothing wrong in members of full age and compos mentis mutually binding themselves to so beautiful a scheme for reciprocal advantage, and being held to the performance of what they had agreed.” Mississippi, like Arkansas, has no statutes on the subject.
We are aware that some courts regard fines as penalties, and will not lend their aid to enforce them, independent of statutory enactment. Lincoln Bldg., etc., Ass. v. Graham, 7 Neb. 173; Lincoln Bldg., etc., Ass. v. Benjamin, 7 Neb. 181; Jarrett's Ex'or v. Cope, 68 Pa. St. 67; Link v. Germantown Bldg. Ass., 89 id. 15. But the rationale of the doctrine of fines for the nonpayment of dues is that they are essential to the proper exercise of the express powers conferred upon building and loan associations in their incorporation. And therefore they have the right to impose them, whether any express warrant is found for it in the statute under which they are incorporated or not. They have such power by implication. Endlich, Bldg. & Loan Ass. sec. 417; Goodman v. Bldg. & Loan Ass. 14 So. supra.
It has been suggested that the menace of foreclosure, which overhangs the borrower in case of default, is a sufficient stimulus to promptness, and that, therefore, the by-law imposing fines is unnecessary, and should not exist. But the investor has no such stimulus to enforce punctuality on his part. The imposition of fines for non-payment of dues must apply to every member alike, — the investor as well as the borrower.
Fine must be reasonable.
The power to impose fines, however, if unrestrained, might be abused, and thus cause injustice and oppression. Therefore, courts of equity, operating with or without the sanction of the statute, will see that fines are reasonable in amount, and equitable in every respect, having in view the object to be attained by them. They must be prescribed by the charter or by-laws, in precise and unequivocal terms, so as to be readily understood by the members. Endlich, Bldg. Ass. secs. 419-22; Occidental Bldg. & Loan Ass’n v. Sullivan, 62 Cal. 394; Davis, Law of Building, etc., Societies, p. 36; Mulloy v. Fifth Ward Bldg. Ass., 2 McArthur (D. C.), 594. The by-law under consideration conforms to-these requirements.
Since the decree is for a sum less than it might have been, under the rule announced, it is unnecessary for us to determine whether the small interest on fines included in the decree is error. If so, it. was, not prejudicial.
Affirm. | [
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Bunn, C. J.
This was a suit on a protested check, issued by Bonner & Bonner of Tyler, Texas, to appellant Fletcher, on Kountze Bros., New York, for $115, endorsed by Fletcher, sold for cash to appellee bank, and protested for non-payment on presentation in New York. Judgment for plaintiff.
The contention of appellant is that there was no proof of sufficient protest in New York, and also that there is no proof of notice of protest to him, nor of due diligence in giving him the notice thereof. The court found against him in both issues, and we will not disturb its findings. The certificate of protest was sufficient, and the attestation by seal was also sufficient to make a f>rimafacie case that the acts indicated had been done by the notary. The certificate of the fact that due notice was given appellant was wanting, but the fact was established by extraneous evidence, and we think also that all proper diligence was used in giving the notice to him.
The judgment is therefore affirmed. | [
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Per Curiam.
Appellant has filed a motion for a rule on the clerk.
His attorney, John W. Unger, Jr., has admitted that the record was tendered late as a result of negligence on his part.
Such negligence made in a criminal case is good cause to grant the rule on the clerk. See Per Curiam, In Re: Belated Appeals In Criminal Cases, February 5, 1979, 265 Ark. 964.
A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
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Bunn, C. J.,
(after stating the facts). The verdict was based solely on the testimony of one Andy Lovell, in so far as relates to the identification of defendant with the act charged, and upon the contradictory statements of defendant, as shown in the testimony of Wiley, a witness for defendant, on cross-examination, admitted over the objection of defendant. Wiley’s testimony was to the effect that he had been on a church committee to investigate this charge against the defendant; that in August last he went to Andy Lovell (the state’s witness), and informed him that he had been put on such committee by the church of which he (Wiley) and defendant were members, to investigate the charge, and desired him (Lovell) to tell him what he knew about it, — that is, as to whether or not defendant had had sexual intercourse with his daughter; that Lovell told him, in answer to his request, that defendant had had intercourse with his daughter, but said also, “However, a man might be mistaken as to that.” On cross-examination the following question was asked witness : “In the conversation you had with Joyce, didn’t he cross himself?” The question was objected to by the defendant on the ground of incompetency and irrelevancy; objection overruled by the court, and the witness permitted to answer it. Witness then answered “Yes” to the question, and his answer was also duly objected to. The objection to the question and answer should have been sustained. It was but the opinion of the witness to the effect of the statement of defendant made in private conversation with him, and, being admitted, may have been exceedingly prejudicial to the defendant on the trial.
The error complained of in the refusal of the court to grant a new trial because of newly discovered evidence cannot be the ground of complaint in a new trial of the case, and therefore need not be discussed now. Other grounds named in the motion for new trial seem to have been abandoned.
For the error named the judgment is reversed, and the cause remanded. | [
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Battle, J.
The return upon the summons issued by the clerk in this action does not show a legal service upon appellant, because it fails to state that its president or other chief officer was not to be found in the county of Ouachita. Sand. & H. Dig. sec. 5669; Cairo & Fulton Railroad Co. v. Trout, 32 Ark. 17, 23; Same v. Rea, Id. 29; Southern Building & Loan Association v. Hallum, 59 Ark. 583; St. L., I. M. & S. Ry Co. v. Barnes, 35 Ark. 95; Bruce v. Arrington, 22 Ark. 362.
The judgment of the circuit court is reversed, and the cause is remanded for further proceedings. Appellant will be treated as in court, by reason of the prosecution of this appeal, and will have leave to answer the complaint.
Bunn, C. J., being disqualified, did not sit in this case. | [
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Battle, J.
On the 15th of June, 1893, A. W. Shirey instituted an action against Calvin Beard, and alleged in his complaint that he was, on the 31st day of May, 1886, the owner of a certain tract of land, which he described; that he sold it on that day to the defendant for $500, for which the defendant executed to him his two promissory notes, each for $250, payable, respectively, eight and twenty months after date, and bearing ten per cent, per annum interest; that the note last falling due remained unpaid; and that the defendant was further indebted to him in the sum of one hundred and fifteen dollars for goods, wares, and merchandise sold and delivered to him. And, tendering with his complaint a deed of conveyance of the land to the defendant, he asked for a judgment against the defendant for the amount of his indebtedness, and a decree foreclosing the lien on the land for the purchase money remaining unpaid.
The defendant answered, and alleged that he owned the land in 1877, subject to a vendor’s lien, which was ordered to be foreclosed in 1884; that he employed the plaintiff to purchase it for him at the sale under the decree of foreclosure, and paid him $60 therefor; that the plaintiff, in pursuance of the agreement, purchased the land, on the 19th of April, 1884, in his own name for the benefit of the defendant, with the understanding that the land was to be conveyed to him when he paid to plaintiff the purchase money.
The defendant admitted the execution of the note sued on, but alleged that he had paid the plaintiff $1,000 more than he owed on account and for the purchase money of the land ; that the plaintiff was indebted to him in the sum of $747.60; and asked judgment against plaintiff for $500, and that plaintiff be required to convey the land to him.
Plaintiff replied, and denied that the defendant paid him $60 for purchasing the land, that he held it as trustee, that the purchase money had been paid, and that he was indebted to the defendant in any sum.
Plaintiff testified that the defendant informed him that he was about to lose the land in controversy, and proposed to pay his expenses if he would go to Jonesboro and buy it, and give him an opportunity to purchase it from him, and paid him $6 to cover his expenses; that the land was sold on the 19th of April at a commissioner’s sale, and purchased by him at the price of $265, which he paid; that he purchased the land for himself, and never agreed to let the defendant have it at what he paid for it, or at any other price until he sold it to him ; that in the year 1885, the sheriff, at his instance, dispossessed the defendant; that Beard, the defendant, then rented the land for 1885, and paid him therefor $25 and a half of a bale of cotton; that he sold the land to the defendant, in May, 1886, for $500, and took his two promissory notes therefor, each for $250, payable, respectively, eight and twenty months after date. One of them has been paid, and $36 or $40 on the other.
Defendant testified: That the plaintiff agreed to buy the land for him, and he was to return the amount paid and ten per cent, interest, and pay to plaintiff $60 for his trouble. In the spring after he purchased the land, plaintiff wanted $400 for it. When he put him out of the house in 1885, he had to pay rent in order to get possession. After the crop was gathered, plaintiff asked $500 for the land, and he had to sign the notes or lose the land. He did not sign them willingly. He had receipts for $350 on his notes, but gave them to plaintiff when he returned the first land note.
Other evidence was adduced at the hearing to prove circumstances slightly corroborating the statements of both parties, aud other matters in controversy, which we do not notice in this opinion.
The circuit court found that the defendant employed the plaintiff to purchase the land for him, and paid $60 for his services ; that the plaintiff was to pay for the land with his own money, but agreed that the sum advanced was to be repaid when the defendant became able to do so ; that plaintiff represented that he took title in his own name as security for the money, and collected $167.65 more than all the sums due for money loaned to buy the land and on the account sued on amounted to ; that he took advantage of the relation of trust subsisting between him and the defendant to sell the land at an exorbitant price, for which the defendant gave his notes; and that the sale was inequitable, unconscionable, and fraudulent; and rendered judgment in favor of the defendant against the plaintiff for $167.65 and all costs, aud decreed that the sale of the land and notes sued on be cancelled, and that plaintiff convey the land to the defendant.
Is the decree of the court correct?
At the time plaintiff purchased the land at commissioner’s sale, no relation of trust existed between him and the defendant. When he sold it for $500, the defendant was not deceived as to a single fact. He had a personal knowledge of every fact material for him to know. The only reason he gives for purchasing the land is, he had to sign the notes or lose the land. Is this a sufficient reason for setting aside the sale?
Vick v. Shinn, 49 Ark. 70, decides the question. In that case “the mortgaged chattels,” says the court, “were in the debtor’s possession. There was no circumstance or threat of the use of violence or force to take them. The debtor voluntarily met his creditor in the office of the attorney who held the notes for collection, to effect a settlement. He admitted a liability of about $300, but claimed a credit on the notes to the extent of the corn that was not delivered to him. A small credit was conceded, but less than he contended for, and less than the circuit court found that he was really entitled to. The mortgagee would not agree to his terms of settlement, and finally informed him that he would take possession of and sell the mortgaged property if he did not pay the full amount demanded. The mortgagee’s attorney repeated the same thing to him. He protested throughout that the excess over the amount he was willing to pay was unjust, and that he did not owe it, but he agreed to pay the whole, and, after having time to arrange to raise the money, caused it to be paid, saying he did it to protect his property from sale, and that he would sue for and recover the excess over his^ just debt.”
The court said “There was no compulsion, in a legal sense, in this. It was incumbent upon the mortgagee, before a legal sale of the mortgaged goods, to get possession of them, and, if this could not be done peacea bly, he must have resorted to the action of replevin for the purpose. But it is not shown that he had the power or opportunity to put his threat of seizing the property into execution against the will of the debtor, and a threat to enforce a demand by suit is not sufficient to create duress of goods. If there is in fact a cause of action when the threat is made, the plaintiff, by bringing suit, would only enforce a legal right; if there was no cause of action, or a demand for more than is due, the party threatened should exercise the ordinary degree of firmness which the law presumes every man to possess, and meet the issue of the unjust suit. One cannot be heard to say he had the law with him, but feared to meet his adversary in court. It is only when he has no chance to be heard that he can pay under protest and afterwards recover. * * * By proper defense to the action of replevin the plaintiff could have protected himself against surrendering his property without paying more than the mortgage debt. * * * Having chosen to make terms with his creditor, instead of pressing his rights when there was nothing to prevent him from so doing, he could not afterwards change position and complain that the terms were forced upon him. * * * A protest is of no avail, except in case of duress of some sort, and then it only tends to show that the payment was the result of the duress.”
But it is said that the doctrine as to duress of goods has no application to real estate; that the rule is founded upon the movable and perishable character of personal property, and the uncertainty of a personal remedy against the wrong-doer; and the reason of the rule is wholly inapplicable to real estate. But we do not undertake to say that the rule has no application to real estate under any circumstances, but that Vick v. Shinn shows that, if applicable to any case in which land is involved, it has none to the one before us. Here Beard was in possession of the land in controversy. He had full and adequate remedies against any action or course Shirey might take. No threats, force, or intimidation of any kind appears to have coerced him into the making of any contract. He had a controversy with Shirey as to facts. They met for the purpose of settling it, as they had a right to do, and did settle it by Beard ratifying Shirey’s purchase and recognizing his right to the land, and Shirey selling it to him for $500 and giving him time in which to pay for it, and taking his notes for the purchase money. For many years, Beard voluntarily made, payments on these notes. Seven years passed before he undertook to resurrect the controversy which they had buried in their settlement, and not then until this action was brought. He was willing for it to remain settled so long as he was permitted to make payments at will; and we think it should not be disturbed, but be allowed to continue to rest in peace.
The decree of the circuit court is, therefore, reversed, and the cause is remanded, with directions to the court to take an account between the plaintiff and defendant, and, if it finds anything due on the purchase money, to foreclose the lien of the plaintiff on the land to pay the same, and for other proceedings not inconsistent with this opinion.
Fleetwood v. City of New York, 2 Sandf. 475; Edwards v. Handley, (Ky.) 3 Am. Dec. 745; Sheppard’s Touchstone, p. 61.
Mulholland v. York, 82 N. C. 510; McNair v. Pope, 100 N. C. 404; Brittin v. Handy, 20 Ark. 381; Perry on Trusts, sec. 171. | [
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Wood, J.
The bank sued the-railway company on a negotiable promissory note purporting to have been executed by the company, payable to H. G. Allis and Geo. R. Brown, and indorsed by them before maturity for value, and delivered to the First National Bank, and by it indorsed and delivered to the plaintiff.
The answer, in substance, sets up that the defendant was a corporation, organized under the laws of Arkansas (chap. 47, Sand. & H. Dig.); that the note was executed by the president and secretary of the defendant corporation, without any authority from or knowledge of its board of directors; that the charter and by-laws of the corporation gave no such authority ; that the president and secretary had the'records to show that they were duly authorized to issue the note, but that such record entry was'false, and the directors had no knowledge of such entry until long after the maturity of the note; that the directors had never ratified the unauthorized acts of the said officers ; that the said secretary and president had never indulged in a course of dealing between the corporation and third parties, so as to lead strangers to believe that they (the president and secretary) had power to issue negotiable paper in the name of the company, nor had the corporation ever received any consideration for said notes. A demurrer to this answer was sustained; and, the defendant re fusing to plead further, judgment was rendered against it for the amount of the note, which this appeal seeks to reverse.
Authority oi p*=aüonrf cor‘
The answer presented a good defense, unless it can be said (1) that the authority of the president and secretary to issue the note in suit must be presumed from the fact that they have exercised it, or- (2) that the corporation is bound by the false record showing that the directors had conferred such authority upon the president and secretary.
1. It may be stated as a general proposition that the president and secretary of a corporation are not empowered to bind it by their signature to commercial paper, unless the authority is expressly conferred by the charter, or given by the board of directors. They have no inherent power to execute negotiable notes in the name of the corporation. Tied. Com. Paper, sec. 121; Cook, Stock, etc., sec. 716; McCullough v. Moss, 5 Denio, 567; 4 Thompson, Corp. sec. 4619; Life & Fire Ins. Co. v. Mechanic Fire Ins. Co., 7 Wend. 31; Hyde v. Larkin, 35 Mo. App. 365; Pierce, Railroads, 32-34; Walworth County Bank v. Farmers' Loan, etc., Co., 14 Wis. 325; 1 Morawetz, Corp. sec. 537; Titus v. Railroad Co., 37 N. J. N. 98-102; Wait v. Nashua Armory Ass'n, 23 Atl. Rep. 77, and authorities there cited; Nat. Bank v. Atkinson, 55 Fed. Rep. 465.
Where the authority of the president and secretary to bind the corporation is challenged, as it has been by the answer in this case, that authority should be shown by the proof, and not be presumed as a matter of law. Mount Sterling, etc., Co. v. Looney, 1 Metc. (Ky.) 550; Bacon v. Miss. Ins. Co., 31 Miss. 116; 4 Thomp. Corp. 4619; Craft v. South Boston R. Co., 150 Mass. 208; First Nat. Bank v. Hogan, 47 Mo. 472; Dabney v. Stevens, 40 How. Pr. 341; 1 Waterman, Corp. 445; Hallowell, etc. Bank v. Hamlin, 14 Mass. 180; Chicago etc. R. Co. v. James, 22 Wis. 194; Bliss v. Kaweah C. & I. Co., 65 Cal. 504.
We are aware that there are authorities contra, and counsel for appellee have cited us to Exchange National Bank v. Oregon Pottery Co., 55 Fed. Rep. 265, where it is held that, “if the president and secretary sign a. negotiable promissory note, their authority is inferred from their official relation.” This case is analogous, the question being presented (as in the case at bar) on demurrer to an answer which negatived the authority of the president and secretary to issue such paper. But the court, to sustain its position in that case, cited only two cases, viz.: Merchants' Bank v. State Bank, 10 Wall. 644; and Crowley v. Mining Co., 55 Cal. 273. In Merchants' Bank v. State Bank, supra, the court use this language : “It should have been left to the jury to determine whether, from the evidence as to the powers exercised by the cashier, with the knowledge and acquiescence of the directors, and the usage of other banks in the same city, it might not be fairly inferred that the cashier had authority to bind the defendant.” True, it is also said “that if the contract can be valid under any circumstances, an innocent party in such a case has a right to presume their existence, and the corporation is estopped to deny them.” But we submit that the broad dictum of the latter quotation was unnecessary for the determination of the question before the court, in view of the fact that there was shown a usage of other banks, and a usual course of dealing with the knowledge and acquiesence of the directors. It was this very language, doubtless, which caused the learned circuit judge in American Nat. Exch. Bank v. Oregon Pottery Co., 55 Fed. supra, to hold, as a matter of law, that the authority of the president and secretary would be presumed from the fact that they had exercised it.
So, also, in the California case cited to support the ruling in 55 Fed., supra, it was admitted that the president, whose authority was being questioned, “ was the superintendent and general managing agent, having full control of the business of the corporation.” The difference, therefore, between those cases and the one at bar, and the one in which they were cited, is too obvious for further notice. The language above quoted from Judge Swayne in 10 Wallace was first used by him in Gelpcke v. City of Dubuque, 1 Wall. 175, and it has been repeated in Supervisors v. Schenck, 5 Wall. 772; City of Lexington v. Butler, 14 Wall. 296; Tod v. Union Land Co., 57 Fed. Rep. 47-53; and Nat. Bank v. Young, 41 N. J. Rep. 531. The facts of these cases did not justify such a sweeping declaration of law, for an examination will show that, in some of the cases, municipal or county bonds were in controversy, which showed upon their face authority for their issue; and in others that the contracts or transactions made or performed by the agent of the corporation were such as had been frequently or usually made or performed by him before, in the course of the business of the corporation ; or that the corporation had received some benefit from the unauthorized act. But the doctrine announced in American Exch. Nat. Bank v. Pottery Co., 55 Fed. Rep. 265, is unsound, and not supported by the weight of authority. Besides, the principle it seeks to establish is in conflict with the doctrine announced by the Supreme Court of the United States in Western Nat. Bank v. Armstrong, 152 U. S. 346, where it was held “ that the vice-president of a bank, however general his powers, could not exercise such a power, unless specially authorized so to do, and that persons dealing with the bank were presumed to know the general powers of the officers.”
Mr. Morawetz, in speaking of these dicta in those cases where they have been incautiously used, said : “ They must be considered in view of the facts of the particular cases in which they were made. Taken alone, as statements of a principle or rule of law, they are certainly not in accordance with the decisions, and cannot be supported upon any sound principle.” 2 Morawetz, Priv. Corp. sec. 608.
The rule that “ if the president and secretary sign, their authority is inferred from their official relation,” provided they might have had power under any circumstances to issue such paper for the corporation, is begging the question, where the authority itself is challenged. This rule, too, ignores a fundamental principle of the law of agency, whether applied to natural persons or corporations; for corporations can only act through agents. It is said by Mr. Mechem in his work on Agency (sec. 289) that “every person dealing with an agent is bound to ascertain the nature and extent of his authority. He must not trust to the mere presumption of authority, nor to any mere assumption of authority by the agent.” Judge Miller, of the Supreme Court of the United States, in The Floyd Acceptances, 7 Wall. 666, said : “The person dealing with an agent, knowing that he acts only by virtue of a delegated power, must, at his peril, see that the paper on which he relies comes within the power under which the agent acts. And this applies to every person who takes the paper afterwards; for, said he, “it is to be kept in mind that the protection which commercial usage throws around negotiable paper cannot be used to establish the authority by which it was issued.” This language is exceedingly apposite to the case at bar. It must be remembered that the answer in this case denies in toto the authority of the president and secretary to issue negotiable paper. Hence, this-case bears no analogy to that line of cases where the authority exists for some purposes, but is exercised for different purposes than that for which it was conferred. Where the authority to issue negotiable paper exists at all in the president and secretary, then the innocent holder would have the right to assume that it was properly and lawfully issued.
Power of corporate officers to issue notes.
When custom noticed judicially.
Our statute for the incorporation of business corporations expressly confers the management of their business affairs upon “not less than three directors.” Sand. 6 H. Dig. secs. 1330-1335. Another section makes it a felony for the president or secretary of a corporation to “wilfully and designedly sign with intent to issue a promissory note without authority from the charter or by laws of such corporation.” Sand. & H. Dig. sec. 1604. Surely the legislature would not have made it a felony for these officers to issue negotiable notes, if they had such power virtue officii. From the above provisions, it appears that the president and secretary of corporations are not general agents. Whatever power they may have to act for the corporation at all in business matters must be delegated and special. We note, en passant, that the statute defines the duty of the secretary to be that of “keeping the books of the corporation.” Sand. & H. Dig. sec. 1332. See Taylor on Corp. sec. 236; 1 Beach, Priv. Corp. sec. 202, and authorities cited in note; Life, etc., Ins. Co. v. Ins. Co. 7 Wend. 31.
Those cases which hold that the president and secretary, or any other officer of a corporation, will be presumed to have authority where they have exercised it, provided, unSer any circumstances, it might have been conferred upon them, proceed upon the theory of a usage or custom from which authority will be implied. But such a theory cannot be maintained as to electric street railways in this state, for the reason that no such usage as to them exists. A usage, to be good, and of which the courts will take judicial notice, must be general, and of such long standing as to have become a part of the law itself. Mussey v. Eagle Bank, 9 Metc. 313; Merchants' Bank v. State Bank, 10 Wall. 604 (dissenting opinion).
Conclusiveness qf corporate records.
The incorporation of electric street railways in the state of Arkansas is of comparatively recent date, and • such corporations do not yet exist to any general extent throughout the state. Moreover, it can scarcely be conceived how a usage of the kind mentioned could have sprung up, in view of our statutory provisions, and especially that one making it a felony for the president or secretary of a corporation to wilfully and designedly issue promissory notes without authority from the charter or by-laws. Sand. & H. Dig. sec. 1604. Manifestly, if the broad dictum of Mr. Justice Swayne in 10 Wall., supra, is the law, then that numerous class of individuals who have invested their means in corporate property would have no protection whatever from the dishonest acts of their agents, whom they have intrusted with office. But the rule, as we have declared it, while protecting the shareholders, is just to the innocent holder ; for in each case it may be shown by any competent evidence that the corporation is liable (1) where the board of directors or the by-laws have conferred upon the president and secretary the authority to issue negotiable paper ; (2) where the corporation, through its directors, has permitted these officers to habitually do such an act in the course of its business-^in other words, has clothed them with the apparent authority to so act; (3) where the directors have ratified the unauthorized acts of its officers; (4) where the corporation has received the proceeds or any "benefit from the transaction. But all of these things were negatived in the answer. Hence it was- sufficient to call for the proofs.
2. The entries upon the books of the corporation are prima facie evidence against it, as admissions,. The records and books of a corporation become conclusive evidence against it when they are the books and records of the corporation, and the entries upon them have been duly made by the recording officer. But corporations are not bound by false and simulated entries upon their records in any case unless, knowing that they are such, they have neglected to correct them, and some innocent third party, having had proper access to them or knowledge of them, has been misled thereby to his prejudice. But a corporation is not bound to a third party by a false entry upon its records, unless such party, not knowing the entry was false, has acted upon the faith that the entry was the true record of the proceedings. This is the holding of the Supreme Court of Massachusetts in Holden v. Hoyt, 134 Mass. 181, and authorities there cited.
[Note. — As to the powers of the president of a corporation see note to Wait v. Nashua Armory Asso. (N. H.) 14 L. R. A. 356. [Rep.]
Reversed, with directions to overrule the demurrer. | [
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Battle, J.
Does the writ of certiorari lie to review the ordinance of the city of Pine Bluff which is in question in this proceeding?
At common law, the writ lies only to review the judicial action of inferior courts, or of public officers or bodies. When the action of the officers or public bodies is purely legislative, executive, and administrative, although it involves the exercise of discretion, it is not reviewable on certiorari. But it is not essential that the officers or bodies to whom it lies shall constitute a court, or that their proceedings, to be reviewable by the'writ, should be strictly and technically “judicial,” in the sense that word is used when applied to courts. It is sufficient if .they are what is.termed “quasi judiy cial.” It has been held that it lies to review the proceedings of officers and bodies, because they are quasi judicial, in the following cases: of supervisors, commissioners, and city councils in opening, widening, altering, or discontinuing public streets and highways (Parks v. Boston, 8 Pick. 226; Tucker v. Rankin, 15 Barb. 471); assessments for sewers or other improvements, (Attorney General v. Northampton, 143 Mass. 589); “of school trustee (Miller v. Trustees, 88 Ill. 26; State v. Whitford, 54 Wis. 150); of a town board in removing an assessor (Merrick v. Arbela, 41 Mich. 630); of a city council removing a city officer (Mayor v. Shaw, 16 Ga. 172; People v. Nichols, 79 N. Y. 582; People v. Hayden, 27 N. Y. Sup. 881); of a city council in grant- mg a ferry license (Ex parte Fay, 15 Pick. 243); of a board of supervisors in ordering an election to re-locate a county seat (Herrick v. Cerpenter, 6 N. W. Rep. 574); of a board of supervisors in creating the office of clerk of said board, and raising certain salaries which had been fixed by statute (Robinson v. Supervisors, 16 Cal. 208); of proceedings of directors of a township directing their secretary not to certify a tax that had been voted (Smith v. Powell, 55 Iowa 215); of proceedings of commissioners in granting or refusing to grant a liquor license (People v. Commissioners, 25 N. Y. Sup. 322; Dexter v. Town Council (R. I.), 21 Atl. Rep. 347); and of proceedings of a board of equalization (Orr v. State Board, 28 Pac. Rep. 416). There are other proceedings of officers and public bodies which it lies to review, because they are quasi judicial, but those mentioned are sufficient to illustrate the rule.
Scope of the •writ under the code.
But it is insisted that the ordinance before us is reviewable on certiorari, under section 1125 of Sand. & H. Dig. That section provides that circuit courts “shall have power to issue writs of certiorari to any officer or board of officers, or any inferior tribunal of their respective counties, to correct any erroneous or void proceeding, and to hear and determine the same.” Literally construed, this section gives to circuit courts the power to correct, on certiorari, every erroneous act of any and all officers, board of officers, and- inferior tribunals, and even to correct all their void acts. How this can be done is difficult to comprehend. It is evident it was not intended to be understood in that sense. How, then, can its meaning be determined except by aid of the common law ? In St. L., I. M. & S. Company v. Barnes, 35 Ark. 99, this court held that it did not so enlarge the office of the writ “as to make it answer the ends of an appeal or writ of error, for the correction of mere errors in judicial proceedings.” In that case the court confined the writ to its office as defined by the common law. By what process of reasoning it can be limited in that respect, and not in others, I am unable to understand.
of^uydlty ordinance,
The “Code of Practice in Civil Cases” and its amendments, of which this statute is a part, were not intended as an amendment of the system of pleading and practice prevailing at the timé of its adoption, but as a substitute for “any case provided for by” it “or inconsistent with its provisions.” (Section 857). This being-the object of it and its amendments, it is evident that so much of section 1125 of the-Digest as we have quoted was not intended to amend the common law by enlarging the office of the writ, but, presumably knowing its office at common law, the legislature adopted it, and made it a part of the code, as it was of the common law pleading and practice, and thereby intended to authorize the circuit courts, by means of it, to review judicial and quasi judicial proceedings of’ officers, boards of officers, and inferior tribunals, and no other.
The ordinance under consideration is purely legisla- .. - . . . 1 - .. , tive, and is not reviewable on certiorari.
The judgment of the circuit court denying the writ is affirmed.
People v. Walter, 68 N. Y. 403; People v. Mayor, 2 Hill, 9; In re Mount Morris Square, id. 14, State v. Kemen, 61 Wis. 494; People v Board, 43 Barb. 232; People v. Board Com'rs, etc., of New York. 97 N. Y. 37; People v. Board of Sup'rs of Qtteens County (N. Y.), 30 N. E. Rep. 488; Whittaker v. Venice (Ill.), 37 N. E. Rep. 240; Drainage Com'rs v. Giffin (Ill.), 25 N. E. Rep. 995; Esmeralda Co. v. District Court, 18 Nev. 438; People v. Martin, 142 N. Y. 228; State v. Board of Aldermen (R. I.), 28 Atl. 347; 2 Dillon, Mun. Corp. (4 Ed.), sec. 927; 2 Spelling, Extraordinary Relief, sec. 1954. | [
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Riddick, J.,
(after stating the facts). We are of opinion that the decree of the chancellor should be affirmed. The appellant R. M. Quertermous in his answer denies that he was the agent of appellees, but he afterwards states facts that show conclusively that he was such agent. He states, both in his answer and deposition, that appellees, desiring to sell the land described in the complaint, agreed to pay him to find a purchaser for said lands; that he afterwards negotiated a sale of the lands to one Derreisseaux, to whom appellees conveyed the lands for a consideration of one thousand dollars. They paid appellant for negotiating the sale the sum of one hundred dollars. These statements of appellant show that he acted as agent of appellees in making the sale to Derreisseaux. He may not have been the general agent of appellees, nor authorized to sell other lands belonging to them, but that is a matter of no moment here, for the only sale complained of is this sale, which he states that he made for appellees, and received from them pay for such service.
Practice as to overcoming answer by proof.
Effect of agent’s purchase at his own sale.
The only debatable question in this case is whether the evidence shows that Quertermous was interested as a purchaser in the sale made by him for appellees. The lands were conveyed to one Derreisseaux, but he had transferred the title before the commencement of the action, and was not made a party, and did not testify.
The deed executed by appellees to Derreisseaux was sent by them to a bank at Pine Bluff, as directed by appellant Quertermous. Quertermous received the deed, and paid the purchase money to the bank, and after-wards continued to control and dispose of the land. He says that he was acting as the agent of Derreisseaux, but the facts and circumstances in proof justified the chancellor in finding that this was only a subterfuge, and that Quertermous himself was the real purchaser of the land. In any event, we cannot say that the finding of the chancellor on this point is clearly against the weight of evidence, and it must stand.
The appellants contend that, as they alleged in their answer matters of defeases directly respoasive to the allegatioas of the complaint, to overcome this defense it was necessary to substantiate the averments of the complaint by the testimony of two witnesses, or of one witness with strong corroborating circumstances. But this contention cannot be sustained, for the rule in question was changed by the code of civil practice. Conger v. Cotton, 37 Ark. 286.
Having concluded that the evidence was sufficient to support the finding of the chancellor that appellant purchased at a sale made by him for appellees without informing them of that fact, it follows that the chancellor was right in holding that appellees were not bound by such sale, for there are few propositions of law better settled than the one which holds that, if an agent purchases at his own sale without informing his principal of such fact, the sale will be set aside at the option of the principal. The amount of consideration, the absence of undue advantage, and other similar features are wholly immaterial. “Nothing,” says Mr. Pomeroy, “will defeat the principal’s right of remedy except his own confirmation after full knowledge of all the facts.” 2 Pom’s Eq. Jur., sec. 959, and cases cited.
The judgment is affirmed.
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Bunn, C. J.
This is a suit and attachment against W. E. Boyington and V. P. Atwell, under the firm name and style of Boyington & Atwell, and also against the Cypress Dumber Company, of which the complaint alleges the said Boyington and the said Atwell were principal members. The allegations of the complaint are substantially to the effect that defendants are indebted to plaintiff in the sum of $6,195.92, for money loaned and advanced to them; that Boyington and Atwell were the principal subscribers to the capital stock of the Cypress Dumber Company, an alleged corporation organized under the laws of Wisconsin, but whose domicile and place of doing business is in Arkansas, and the said Boyington and Atwell have each failed to pay in their part of the capital stock, and there is now due on said capital stock a large sum, viz., ten thousand dollars; that the Cypress Dumber Company failed to file proper constituting instruments required by the law of the state of Wisconsin, or by the law of the state of Arkansas, or to comply with any of the statutory provisions of the state of Wisconsin, or of Arkansas; that all business done by defendants in the name of the Cypress Dumber Company, or of Boyington and Atwell, was really in truth and fact the business of Boyington & Atwell, and managed by them, and was done in the state of Arkansas, and in the counties of Pulaski and Jefferson, of said stale; that they did in said counties a large amount of business, and the debt sued on herein was contracted in said counties, and as business carried on therein; that if defendants were ever protected by any corporate •existence of the Cypress Lumber Company as a corporation, under the laws of the state of Wisconsin, they rendered themselves liable as partners by reason of said Cypress Lumber Company emigrating from said state •of Wisconsin, its original domicil, to the state of Arkansas, and in failing to comply with the statutory provision of the state of Arkansas. Wherefore plaintiff prays judgment.
An attachment was sued out, and the individual property of Boyington and Atwell attached.
Boyington and Atwell demurred, and this was sustained as to the non-payment of the shares of the capital stock by defendants, and overruled as their individual liability for the debts of the corporation. They then answered that they had no business dealings with the plaintiff at any time; that he had at no time loaned them money; that it is not true that they (the defendants) were the principal stockholders in the Cypress Lumber Company, if by that is meant that they own most of the stock; that it is not true that they had not paid up their subscribed stock; that they together never owned more than one •share over one-half of the capital stock, and that all this has long since been paid up, and that they now owe nothing to the corporation; that the Cypress Lumber Company was a corporation formed under the laws of Wisconsin, for the transaction of such business as it was engaged in in the states of Wisconsin and Arkansas; that it was formed in strict compliance with the requirements •of the laws of Wisconsin for the formation of such corporations, and had complied with all the requirements of the laws of Arkansas imposed on foreign corporations -doing business in this state, and it was, while doing busi ness in Arkansas, a valid corporation; that J. N. Boyington was treasurer, and James A. Brown was vice-president, W. E. Boyington was president, and V. P. Atwell was secretary; that defendants had no business relations with plaintiff, except for the Cypress Lumber Company, and as officers of the same; that plaintiff, in a long course of dealing with the Cypress Lumber Company, a corporation organized under the laws of Wisconsin, recognized and treated it as such, which it really was; and pleaded that he is estopped now to deny its corporate existence.
inability of of corporation,
Rigntof íatfón“ocdopo" business in state.
When the evidence was all in, the court below, on motion of plaintiff, instructed the jury to return a verdict for plaintiff, which was done, and judgment for the debt and on the attachment was rendered by the court. Defendants saved exceptions, appealed, and asked leave to tender their bill of exceptions, which was accordingly, done.
There was evidence tending to show that plaintiff had dealt with the Cypress Lumber Company as a corporation, and recognized it as such; that the same was a corporation formed and existing under the laws of Wisconsin; that defendant did not owe plaintiff anything individually, and never had any dealings with him, except as officers and members of the corporation; that they were owing nothing to the corporation. It is, therefore, difficult to see how the court below could take the case from the jury and direct a verdict against the defendant.
That a corporation should transact business in another state, unless such corporate business is prohibited in the one state or the other, or both, is not only no ... ground to treat it as an invalid corporation, but the transaction of such business is now very generally encouraged under the usual restrictions. Some of the earlier cases announce a different rule, because such manner of operating was supposed to be somehow fraudu lent, as against the states concerned, as in Hill v. Beach 12 N. J. Eq. 31; but the decided weight of the more recent authorities is in support of the more liberal policy, and dealing with the subject as one growing out of the comity of states. Stout v. Zulick, 48 N. J. L. 599; Merrick v. Van Santvoord, 34 N. Y., 208; Saltmarsh v. Spaulding, 147 Mass. 224; Hanna v. Int. Petroleum Co. 23 Ohio St. 622; Second National Bank v. Hall, 35 Ohio St. 158, and numerous others.
when not Rrin^upan0 the evidence.
When once regularly formed in a foreign state, until dissolved according to the laws of that state, the existence of a corporation cannot be destroyed, or even called in question, except to ascertain the fact of its existence at home, by the courts of this state. At least such seems to be the reasonable doctrine. Such a corporation may be forbidden to enter this state at all, and is forbidden by legislative enactment to do business here except on conditions, but that is all. There is no law making such null and void when attempting to do business here, without complying with conditions. The law makes their contracts, made in the course of doing business, void as against citizens.
The objection that the bill of exceptions does not show that it contained all the evidence is not well rounded in a case like this, where the judgment is based on a total want of evidence on the part of defendants, however well founded it might be in a case determined on the weight of evidence. The answer to the objection in this case is that the bill of exceptions shows some evidence on the part of defendant, and when, as in this case, the appeal is taken to correct the error of the lower court in refusing to permit the jury to consider this evidence, whatever may be its weight or value, all the evidence in the case is not needed.
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Battle, J.
This is the second time this cause has been before this court for consideration. When it was here before, the judgment of the circuit court, which tried it the first time, was reversed, and it was remanded for a new trial. Fordyce v. Lowman, 57 Ark. 160. Upon its return to the circuit court, the issues were tried again; plaintiff recovered judgment; and the defendants appealed.
Appellants now contend that the judgment from which they have appealed should be set aside because the court permitted appellee to introduce incompetent testimony in the last trial over their objections. To render the testimony objected to more intelligible, it is necessary to state that “this action was brought to recover damages alleged to have been occasioned by the death of Samuel Lowmau,” the appellee’s intestate, who was killed by a derailment of the train on which he was acting, at the time, as a brakeman, in the employment of appellants. This occurred while he was making his first trip over appellants’ road after his employment. At the time the accident occurred, the locomotive of the train was pushing ahead of it some flat cars, which were found on the main track after it had gone some distance on the trip; and the deceased, in discharge of the duties of the place he was employed to fill, — that is to say, of first brakeman, — was riding on these flat cars. To prove that he thereby incurred risks which he did not anticipate and assume when he was employed, the following answers of witnesses to questions propounded to them were admitted, over objections of the appellants, as evidence:
“Q. Would you [McCool] consider it a part of the anticipated duties of a brakeman, who hired to go upon a train, that, during the progress of his journey, he would find flat cars standing on the main track, which his train was expected to pick up, and carry them ahead of the engine?
“A. No, I shouldn’t think it was. I shouldn’t think he would anticipate such a thing at all, being a man who had considerable experience in railroading.
“Q. What would you say about finding cars? Was it proper railroading, or was it negligent railroading?
“A. It was contrary to all rules and regulations of railroading, and you don’t find it on any well-disciplined road. You don’t find it on the main tracks. Of course, branches are governed by the same rules main lines are.
“Q. In going on a mixed passenger and freight train, what would he expect?
“A. A railroad man would not expect to find cars on the track in front of his engine.
“Q. Would he ride cars in front of his engine?
“A. He wouldn’t expect it at all without being told. If I was to go out on the road today, I would not expect to find cars on the main track.”
‘‘Q. If you [Fortune] were employed by the Cotton Belt Railroad to run from Pine Bluff - to Little Rock on the Altheimer Branch, on a freight train, would you expect to find on the main line five or six flat cars to push ahead of the train to a side-track?
“A. I would not expect to find any.
“Q. Then, understanding the duties of a brakeman, you say you would not expect to find anything of that kind?
“A. No. sir.
* * * * * *
“Q. What would you say to the jury as to the kind of railroading it would be, leaving five or six flat cars on the main track to be pushed ahead of the engine on the side-track?
“A. Such a thing as that is unknown in railroading, and I never heard of it in all my life until I heard of it on the Altheimer Branch. Sometimes cars will get away. It happened while I was a switchman in Texas. Five cars got away from us. Somebody would have found them there. That was the extent of them there. The idea of pulling cars out, and leaving them there,— there is no railroading in it.”
Appellee says this evidence was introduced in the former trial, and was objected to by appellants, and that the objections to it were presented to this court in the former appeal. The evidence referred to was to the effect that riding on flat cars in front of an engine is more dangerous than it is on cars in rear of it, or than it is on a train without any cars in front of the engine. Nothing was said by this court as to its admissibility in the former trial. Why, we know not, unless it was considered not to be prejudicial. But we are not concluded by this silence in deciding the question now presented. The evidence objected to in the two trials was entirely different. In the former, it was adduced to show which of the two positions is the more dangerous; and in the latter, that the deceased brakeman did not assume, by his employment, the risk he incurred when riding on the flat car in front of the engine.
The opinions of experts are admitted as evidence for the sole purpose of aiding the court or jury to understand questions which inexperienced persons are not likely to decide correctly without such assistance. When the subject-matter of inquiry before a court requires special experience or knowledge to. comprehend, they are admissible for that purpose, but are not when the inquiry is into a subject which a man of ordinary intelligence and experience in the affairs of life can understand, as in that case the assistance is not needed. Brown v. State, 55 Ark. 593; Muldowney v. Illinois Central R. Co. 36 Iowa, 472.
Bet us apply the rule to this case. When Bowman undertook to perform the duties of brakeman, he assumed only those risks which were ordinarily incident to his employment, or of which he had knowledge or notice that he would incur. Now, to determine whether the risk • he incurred by riding on the flat cars was assumed by him, it was necessary to ascertain whether he would have incurred it in the discharge of his duties on the train he was employed, had it been run as it would be on railroads operated in the ordinary and usual manner. If it was running, when he was injured, according to the rules and regulations or practices usually adopted or observed by railroad companies in the operations of such trains, or he knew, or ought to have known, or had notice, at the time he entered the service of appellants, that he would incur^the risks he did, then he assumed it; otherwise, he did not. To determine this question, no special experience, knowledge, study, or skill is required. All that was necessary to enable a jury to decide it correctly was proof of all the facts that shed light upon the subject. The opinions of experts were unnecessary for that purpose. It therefore follows that the testimony objected to should have been excluded, and that the court erred in admitting it.
But we do not mean to hold- that an employee cannot assume risks after his employment. He can do so expressly, or by continuing in the employment after he becomes fully aware of the additional risk, without promise of the master, or reason to expect, that it will be removed or diminished. But this rule is not without modifications. This court held, on the first appeal in this case, that the employee, Bowman, did not assume the additional risk by continuing in the service of his master “when he was called upon, in an emergency, to perform the duties assigned him.” It was thought that the emergency, if it existed, relieved him of the assumption of the additional risk. But sufficient has been said upon this point in the first opinion.
Nor the error indicated, the judgment of the circuit court is reversed, and the cause is remanded for a new trial. | [
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Riddick, J.,
(after stating the facts). 1‡, was not error to allow witnesses on the' part of the state to exhibit to the jury certain drills and punches found by them in the house of appellant, Starchman. It having been shown that the safe which was entered was opened by means of similar instruments in connection with an explosive substance, such evidence was proper as tending more or less to connect Starchman with the offense. People v. Hope, 62 Cal. 291; Rapalje on Larceny & Kindred Offenses, sec. 358.
In Boyd v. United States, 116 U. S. 616, cited by counsel for appellant, it was held that a défendant cannot be compelled to produce his private papers in order that they may be read in evidence against him upon a criminal prosecution, for the reason that to do so would, in effect, be compelling him to testify against himself. But that case has no application here, and rests on principles different from those controlling the admission of this evidence. No private papers of the defendant were introduced, and he was not compelled to produce the instruments offered in evidence in this case. These instruments were found by the officers while searching for stolen property, and it was proper for such officers to testify concerning any material fact discovered by them while making such search. This case is similar to-the case of State v. Flynn, 36 N. H. 64, where it was held that “evidence obtained by means of a search warrant is not inadmissible either upon ground that it is in nature of admissions made under duress, or that it is evidence which the defendant has been compelled to fur nish against himself, or on the ground that the evidence has been unfairly or illegally obtained, even if it appears that the search warrant was illegally issued.” If the drills introduced in evidence in this case were taken by the officers without authority, they may be forced to respond in damages for such wrongful act; but that question, not being before the court, could not be considered, and furnished no reason to exclude such evidence from the jury. State v. Flynn, 36 N. H. 64; Commonwealth v. Dana, 2 Met. (Mass.) 329; Bishop’s New Crim. Pro. sec. 246.
0f°]?0cpri?ty011. “rovedas
While the court did not err in the admission of evidence, the contention that the verdict is without evidence to support it must be sustained. The indictment alleged that the defendant broke and entered the court-house with the intent to steal “twenty-five hundred two-cent United States postage stamps, of the value of fifty dollars, and the property of the United States.” The evidence connecting defendant with the breaking and entering the house was altogether circumstantial, and to us not very convincing, but there is an entire absence of proof tending to show that such breaking and entering was with an intent to steal two-cent United States postage stamps. The only witness who refers to stamps in any way testified as follows: “I went before Wayland, justice of the peace, and swore out a search warrant to search Starchman’s house for one hundred dollars worth of stamps stolen by the man or men who opened the safe. I went with Mr. Childers, the deputy sheriff. He summoned me to assist him. We made a full search. Pound no stamps.” It will be noticed that the witness does not mention two-cent postage stamps or postage stamps of any kind. If we overlook this deficiency, and assume that by the word “stamps” the witness meant two-cent United States stamps, there is still nothing to show that such postage' stamps were stolen from the safe or court-house when- the burglary was committed. The witness says the stamps were stolen by the man or men who opened the safe, but where were the stamps at the time they were stolen? The witness does not say that they were stolen from the safe or courthouse, or that they were even kept in such safe or courthouse, nor was there any fact shown from which it can be inferred that the breaking and entering of the house was with the intention to steal stamps of any kind. There is no evidence to show that the stamps stolen were owned by the United States, or that the United States had at any time kept postage stamps in said safe or court-house, and nothing to show that either the defendant or any one else had any reason to believe that such stamps were kept in that place. There is therefore nothing to sustain the allegation that the breaking and entering the court-house was with an intent to steal postage stamps. While the intent to commit a felony is a material part of the crime of burglary, and the indictment should set out the felony intended, yet it was probably unnecessary to describe the property- which the burglar intended to steal with the particularity shown in this indictment. But, having made allegations descriptive of the property and of the offense, there must, in order to convict, be some proof tending to support them. Dudney v. State, 22 Ark. 251; Bishop’s New Crim. Pro., secs. 486, 488, and cases cited; Neubrandt v. State, 53 Wis. 89; Rapalje on Larceny & Kindred Offenses, sec. 355.
The evidence to support the allegation that the breaking and entering took place in the night time, so far as it appears in the transcript, is very weak, but we deem it unnecessary to discuss it further. We know that this apparent defect in the proof may have been the result of haste or oversight in preparing the bill of exceptions, but, as no effort has been made to amend it, we must assume that it reflects the facts.
For the reasons given above, the judgement is reversed, and the cause remanded for a new trial. | [
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Darrell Hickman, Justice.
Dissension arose in the Fort Smith Symphony Association when their conductor of 14 years, Walter Minniear, resigned in 1984. Some performing members wanted more voice in the decisions made by the board of directors which was made up primarily of nonperforming members. About half of the performers resigned or disassociated themselves from the orchestra in May of 1984 and formed a new organization; it was incorporated as a non-profit corporation named Fort Smith Symphony Orchestra, Inc. The old organization, which had existed since the late 1920’s, the Fort Smith Symphony Association, Inc., filed suit in chancery court, seeking an injunction to prevent the new organization from using the name “Fort Smith Symphony Orchestra.” Two days after the appellant was served, the chancellor held a hearing and issued a temporary injunction. The older organization was required to post a $10,000 bond to cover any damages that might occur in the event the injunction was not later made permanent. The new organization brings this appeal from the temporary order, which is permissible under Ark. R. App. P. 2.
Three errors are alleged: the chancery court should have dismissed the complaint because no irreparable harm was alleged by the appellees and because the circuit court, rather than the chancery court, had jurisdiction; notice was insufficient; and the chancellor was wrong in issuing a temporary injunction. The order is affirmed.
While there are no cases directly in point in Arkansas, other jurisdictions in similar cases have made decisions that support the finding of the trial court in this case. See 37 ALR3d 277 (1971).
In Missouri Federation of the Blind v. Nat’l. Federation of the Blind, 505 S.W.2d 1 (Mo. 1974), it was held that a not-for-profit organization has the right to adopt a name by which it will be known and to reap the benefits of the good will it derives under that name, just as a profit-making organization has that right. The same principle was affirmed in Metropolitan Opera Assn. v. Metropolitan Opera Assn., 81 F. Supp. 127 (D.C. Ill. 1948), where an Illinois opera began using the name of the world renowned opera company in New York. The district court held that the use of the name by the local company was likely to mislead the public into believing that the two organizations were somehow connected and that injunctive relief was proper. The basis for the decision was that a misleading name is likely to deceive the public and that ah organization has the right to protection of the good will and reputation it has developed over time.
Although the issue has never arisen in Arkansas in a case involving a not-for-profit corporation, we have afforded protection on the same basis to ordinary corporations where we have found the names to be confusing and likely to mislead. Clyde Campbell University Shop v. Campbell-Bell, Inc., 243 Ark. 937, 422 S.W.2d 875 (1968); Liberty Cash Groceries, Inc. v. Adkins, 190 Ark. 911, 82 S.W.2d 28 (1935). We do not hesitate to extend the principle to non-profit corporations.
In this case we agree with the chancellor that the name “Fort Smith Symphony Orchestra” has been used in such close association with the appellee that the use of the name by the appellant could lead to confusion on the part of the public and, as a result of that confusion, injury to the appellee. The evidence of the close association is overwhelming. For example the appellee introduced programs printed with that name, correspondence by the appellee using that name, and a proclamation by the mayor in 1982 declaring the week to be “Fort Smith Symphony Orchestra Week” with reference to the appellee. There was some evidence that people in the community were confused by the situation. The appellant planned concerts in the same auditorium that the appellee had always used. The appellee provided evidence that it was supported in great part by ticket sales, gifts and donations. This evidence is more than adequate to sustain the chancellor’s action in issuing the injunction.
The complaint did not use the words “irreparable harm” and for this reason the appellant argues the case should have been dismissed. The complaint did state facts which in our judgment would allow the chancellor to hear evidence regarding injunctive relief. The complaint also stated that there was no adequate remedy at law. Pleadings shall be liberally construed so that effect is given to the substance of the pleading rather than the form. Home Ins. Co., v. Williams, 252 Ark. 1012, 482 S.W.2d 626 (1972). Furthermore, the evidence presented at the hearing amounted to at least a prima facie showing that irreparable harm could result in the absence of injunctive relief. See Paccar Financial Corp. v. Hummell, 270 Ark. 876, 606 S.W.2d 384 (Ark. App. 1980).
We do not agree with the appellant’s argument that the circuit court had jurisdiction of this case since that is where non-profit organizations file their articles of incorporation. Ark. Stat. Ann. § 64-1905 (Repl. 1980). The appellee simply sought an injunction which is an equitable remedy within the jurisdiction of the chancery court. McKenzie v. Burris, 255 Ark. 330, 500 S.W.2d 357 (1973).
The two day notice of the hearing given the appellant, while somewhat short, was not so inadequate as to void the proceedings. A temporary injunction may issue without any hearing where there are affidavits or a verified complaint alleging irreparable harm without relief. ARCP Rule 65(a)( 1). The injunction in this case was not issued until the trial court had heard from four witnesses and considered a number of documents. Necessarily, the trial court must have some discretion in setting a hearing for a temporary injunction. No abuse of that discretion will be found unless the notice is patently unfair and prejudicial. The appellant has been unable to demonstrate such an abuse.
Affirmed. | [
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Per Curiam.
Appellant, Russell McKinnon, by his attorney, has filed for a rule on the clerk.
His attorney, Patricia Tucker, admits that the record was tendered late due to a mistake on her part.
We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5,1979, In Re: Belated Appeals in Criminal Cases.
A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
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Darrell Hickman, Justice.
This is a conversion suit. William Scott Feemster, a farmer from Howard County, sued T. R. Ellis, a Muskogee, Oklahoma, resident, for stealing 800 gallons of diesel fuel from his farm fuel tanks which are located south of Nashville, Arkansas. All the evidence was circumstantial; Ellis chose to put on no evidence. The trial judge, sitting as a jury, found that agents of Ellis had intentionally converted the 800 gallons of fuel and entered judgment for Feemster for the cost of the fuel and trebled damages for punishment. The only real issue on appeal is the sufficiency of the evidence, and we agree with the trial court that Feemster made a sufficient case.
The circumstances of the case are unusual. About 10 p.m. on the evening of April 9, 1980, Feemster and a companion were passing one of Feemster’s fields, where he had a fuel storage tank, when they noticed a pickup truck backed up to his fuel tank. They saw someone, perhaps two people, flee as they approached. They got out and found a 1979 GMC truck with the motor running. It was equipped with two fuel tanks, one rectangular and the other a saddle type tank like those used on semi-trailer trucks, various valves and hoses connecting the tanks, and an electric pump. A fuel line was running from one of the tanks into Feemster’s tank. A camper shell covered the equipment. Feemster turned the truck motor off, got the license number and called the sheriff.
The sheriff put out an alert in the neighborhood about the incident, but Feemster was unable to provide any substantial description of the person or persons who fled. The sheriff impounded the truck, ran a check on the vehicle, and found it to be registered to T. R. Ellis of Muskogee, Oklahoma. He also found an invoice in the vehicle issued to T. R. Ellis of Muskogee, Oklahoma. An Arkansas road map, marked in three places, was in the pickup. An area was circled which included the storage tanks of Feemster. Two other places were marked which turned out to be road intersections where large farming operations were conducted and where fuel storage tanks were located. The sheriff, a farmer himself, said he had never seen a farm truck with such equipment before. He said that ordinarily a farm truck in that locality had to have lug tires, not smooth tires, which this one had.
The sheriff testified that he checked and did not find that such a vehicle had been reported stolen. Ellis called him within a few days asking whether the sheriff had his pickup truck. The sheriff said he did have it, and he could come get it. In fact, he asked Ellis to come get it, but Ellis never came. Ellis told the sheriff that Frank Fields, an employee of Ellis, had reported the truck stolen at Texarkana from a truck stop on April 9. Fields drove for Ellis, who had several trucks used for hauling grain. The sheriff told Ellis he would like to talk to Fields, but Ellis said he did not know where he was. The sheriff called the Texarkana police and obtained a report made by one Frank Fields at 1:25 p.m. on the afternoon of April 9 that a GMC pickup had been stolen from a truck stop. Fields had reported that the pickup was left at the truck stop two days earlier with the keys in the ashtray. When he returned, it was gone.
Close in time to the incident, Joe Harding, a resident of Nashville, picked up a hitchhiker, who said he had been fishing. However, it was peculiar to Harding that he had scratches all over him. The man said he was going to Oklahoma. The sheriff testified that the description of this man matched the description of Frank Fields who had reported the vehicle stolen in Texarkana.
The judge specifically found that he did not believe the report of the stolen vehicle to be true. Further, he found that the pickup truck was specially rigged to convert fuel. Both findings of fact were conclusions which the judge could have made from the evidence presented.
After Feemster presented his proof, Ellis moved to dismiss. He argues that a verdict should have been directed in his favor at that point. On appeal from a denial of such a motion, we look at the evidence in the light most favorable to the non-moving party, and, if there is any substantial evidence, a question of fact was presented and the motion should have been denied. Nichols v. International Paper Co., 278 Ark. 226, 644 S.W.2d 583 (1983). We find that there was sufficient evidence to present a question for the trier of fact of whether Ellis’ agent had converted the fuel.
Once the judge concluded that the vehicle was indeed being used to convert fuel (it is undisputed that the pickup belonged to Ellis), and that Fields worked for Ellis, then the only missing link was whether Fields or an agent of Ellis used the vehicle that night. The judge chose not to believe Fields’ report to the police that the truck had been stolen. In view of all the circumstances of the case, we cannot say that the judge was wrong to draw the conclusion. Therefore, he could have believed that Fields had possession of the truck on April 9 and converted the fuel.
Ellis also argues that even if there was sufficient evidence that his agent stole the fuel, there was insufficient evidence that the agent was acting within the scope of his agency. Once the trial court determined that Ellis or his agent was responsible for the theft, it would only take a small step to find that in view of the truck’s equipment the agent was acting at Ellis’ direction.
It is argued that the finding that 800 gallons of fuel were stolen is error because that amount is beyond the capacity of the two tanks in the back of the pickup. The sheriff did testify that Feemster could not be sure of the capacity of the tanks. Feemster’s testimony was unrefuted, however, that he had filled the tank with 1000 gallons only a few weeks before, had used none, and that when he measured the tanks, he only found 200 gallons left. Once the judge determined the pickup’s mission, demonstrated by the roadmap and the equipment, he could have easily concluded that the missing fuel was taken by Ellis’ agent, perhaps in two different trips.
When a judge sits without a jury, we will not reverse his findings unless they are clearly erroneous. ARCP Rule 52. We find no such error.
Affirmed.
This suit arose when T. R. Ellis and Sheriff Dick Wakefield for return of his pickup which was impounded after the conversion. Feemster intervened and cross-complained against Ellis for conversion. Upon agreement of the parties, Wakefield was dismissed as a party and the truck was released to Ellis in exchange for a replevin bond. | [
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Darrell Hickman, Justice.
The primary question on appeal in this divorce case is the division of property which James Canady, the appellant, owned before the marriage. After hearing extensive testimony, the chancellor concluded that “the parties mixed their assets and obligations as well as their joint efforts to the extent that it becomes clear to this court that the parties are each equitable and joint owners of the other’s property.” Consequently, the chancellor ordered all real and personal property sold and the proceeds divided equally. We must reverse the decree as to the property division for reasons we explain.
One of the tracts of land ordered sold was 123 acres of land which James Canady received pursuant to his divorce from his first wife. The decree awarded the land to him and his two daughters as joint tenants with right of survivorship. The chancellor found, however, that Mr. and Mrs. Canady purchased that land. That was clearly wrong. Since his daughters were not parties to the divorce proceedings, their interests could not be ordered sold. See Cole v. Cole, 168 Ark. 381, 270 S.W.2d 593 (1925). Without the daughters’ consent, the only way to affect their interests would be by partition. See Ark. Stat. Ann. § 34-1801 (Supp. 1984). The ownership that Mr. Canady shared with his daughters was not only of the land but also that of a dairy operation, the buildings, equipment and cattle, all of which was ordered sold. Although it is sometimes possible in such cases to determine the party’s interest in jointly owned property and take that into consideration in dividing the property as was suggested in Riegler v. Riegler, 243 Ark. 113, 419 S.W.2d 311 (1967), there was no substantial evidence in this case from which the chancellor could make such a finding. The chancellor will have to determine the scope of the entire dairy operation and land and its value at the time of the marriage of the Canadys as well as its worth at the time of the divorce. We cannot make that determination from the record before us.
Another question concerns the ownership of a 101 acre tract. In 1973 James Canady inherited a one-sixth interest in the land with his brothers and sisters. He bought their interests in November, 1975, before he married Mrs. Canady. Mrs. Canady claims they used her money to make the purchase. The divorce decree recites that this land was purchased by both parties in Mr. Canady’s name. The chancellor’s findings ignore the fact that Mr. Canady had a prior interest in the land.
It is our judgment that the chancellor did not give due deference to the statutory requirements pertaining to property acquired by parties prior to marriage in dividing the real property. Ark. Stat. Ann. § 34-1214(A)(l) and (2) (Supp. 1984) provides:
All marital property shall be distributed one-half [¥2] to each party unless the court finds such a division to be inequitable, in which event the court shall make some other division that the court deems equitable taking into consideration (1) the length of the marriage; (2) age, health and station in life of the parties; (3) occupation of the parties; (4) amount and sources of income; (5) vocational skills; (6) employability; (7) estate, liabilities and needs of each party and opportunity of each for further acquisition of capital assets and income; (8) contribution of each party in acquisition, preservation or appreciation of marital property, including services as homemaker; and (9) the federal income tax consequences of the Court’s division of the property. When property is divided pursuant to the foregoing considerations the court must state its basis and reasons for not dividing the marital property equally between the parties and such basis and reasons should be recited in the order entered in said matter.
All other property shall be returned to the party who owned it prior to the marriage unless the court shall make some other division that the court deems equitable taking into consideration those factors enumerated in subparagraph (A) above, in which event the court must state in writing its basis and reasons for not returning the property to the party who owned it at the time of the marriage.
While the chancellor’s findings touched on some reasons for his decision and while the record may contain enough evidence to justify his order and equal division, except for the 123 acres and dairy, the statute is explicit regarding specific findings if there is any deviation from returning non-marital property to the original owner. The reasons given must be sufficiently specific. See eg. Davis v. Davis, 270 Ark. 180, 603 S.W.2d 900 (Ark. App. 1980); Glover v. Glover, 4 Ark. App. 27, 627 S.W.2d 30 (1982).
Both parties were previously married. James Canady and Connie Canady began living together in the spring of 1974 and were married December, 1976. James Canady was not divorced from his first wife until October of 1974. James Canady took some part in operating the dairy and was a long haul truck driver until 1979. Connie had considerable sums of money which she had inherited from her first husband and received from other sources. She operated the dairy and contributed substantially to their living expenses and the obtaining, maintenance, and development of the marital property. The chancellor found that Mrs. Canady contributed a total of $161,000. Our total of her contribution from the record is approximately $ 150,000. Her contribution to the marital property will have to be determined exactly or nearly so. Potter v. Potter, 280 Ark. 38, 655, S.W.2d 382 (1983).
We reverse and remand for a retrial of that part of the decree relating to the division of property.
Normally, we decide chancery cases de novo and do not remand them for retrial. However, on the record before us, we cannot fairly determine the interests of the parties. That division can only be made on the basis of specific findings as directed by Ark. Stat. Ann. § 34-1214. Sometimes where a case is extremely complicated and an accounting would consume an inordinate amount of the court’s time, a special master is appointed. See Petty v. Lewis, 285 Ark 3, 684 S.W.2d 250(1985).
James Canady also argues that the introduction of various documents relating to Connie Canady’s income was error since in some instances they could not be traced to James. We find that introduction of these documents was not an abuse of the court’s discretion since they were relevant to the issue of what funds Connie Canady had available to her to contribute to the marriage.
We agree with James Canady that the court erred in excluding testimony by H. C. Wallace that he deposited $12,000 in Canady’s account. The chancellor refused to admit the proffered testimony without physical documentation of the deposit. That is a misconception of the best evidence rule. Unif. R. Evid. 1002. When a transaction occurs where a written record is made, it is not necessary to produce the record where there is testimony to prove the transaction. It is only where the writing itself must be proved that the writing must be produced. 5 Weinstein’s Evidence Par. 1002 [03] (1984).
Reversed and remanded. | [
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Riddick, J.,
(after stating the facts). The only-question we need consider is whether the action against Bowman is barred by laches and the statutes of limitation. At the time Wilkins & Bro. recovered judgment against the Memphis & Great Southwestern Railway Company, it owned no property excepting the amounts due from subscribers to its stock, had suspended operations of all kind, and ceased to be a going concern. The right of action against Bowman and other subscribers to the stock of said company accrued in favor of Wilkins & Bro. at least so soon as their execution was returned nulla bona, which was on the 27th of March, 1883. Marsh v. Burroughs, 1 Woods (U. S.), 468; Thompson v. Reno Savings Bank, 3 Am. St. Rep. 804, and note; 3 Thompson, Corporations, sec. 3371. This was not an action upon a judgment, for there was no judgment against the stockholders, but an action upon the written contract of subscription to take and pay for the stock, of said company. This action would be barred unless commenced within five years after it accrued against the stockholders of a company which had disbanded and permanently ceased operations. Curry v. Woodward, 53 Ala. 376; Payne v. Bullard, 23 Miss. 88; Thompson’s Liability of Stockholders, secs. 290, 291.
The right of action accrued in 1883, and the summons was not issued against Worthen until 1892, and the action is barred unless the making out and serving the summons upon Bowman, in Kentucky, was a commencement of an action, within the meaning of our statute. The statute provides that “a civil action is commenced -by filing in the office of the proper court a complaint and causing a summons to be issued thereon.” Sand. & H. Dig., sec. 5657. But the mere signing and sealing a summons by the clerk is not sufficient. It must be delivered to the sheriff, or to some one for him, and with the intention and purpose of placing it in the hands of the sheriff to be served. McClarren v. Thurman, 8 Ark. 316-318; State Bank v. Cason, 10 id. 479; Hallum v. Dickinson, 47 id. 125. In this case the writ was not directed or delivered to the sheriff, nor was there any intention to deliver it to him. The object in filing the complaint was to obtain a personal judgment against Bowman, which required either an appearance on his part, or the service of a summons by an officer of this state; yet no summons was directed or delivered to an officer of the state. We are therefore of the opinion that an action was not commenced against Bowman, within the meaning of our statute.
It is true that, when property is attached, a nonresident defendant may be constructively summoned by delivering him a copy of the summons with the complaint attached, but no personal judgment can be rendered on such summons. Sand. & H. Dig., sec. 5887. Ford v. Adams, 54 Ark. 137. No property was seized, or intended to be seized, in this case, and the constructive summons had nothing to rest upon, and was without effect.
It was well known to plaintiffs that Bowman was a resident of Lexington, Kentucky; and, if they desired a personal judgment, the way was open by a suit in that, state. We conclude that the chancellor was. right in holding that, after a delay of nine years, the appellants-were barred by laches and the statute of limitations-The decree is affirmed. | [
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Hughes, J.
It was agreed by counsel in this case that the point in issue is: “Is a county treasurer who succeeds himself entitled to commission on funds carried over from one term to another, when he had received commission on said funds during his former term?”
It is held in Lawrence County v. Hudson, 41 Ark. 494, that a county treasurer is entitled, under the statute, to commissions on school funds received from the former treasurer, the court saying: “There is no reason in compelling the treasurer to give bond, and assume the custody of funds already collected, under a grave responsi bility, and confining him to the receipts which come in during his term of office for his compensation. We can see no difference between a treasurer who succeeds himself and a treasurer who succeeds another person as treasurer. One who succeeds himself as treasurer is required to take the oath of office, and to give bond on entering upon his second term, precisely as he did in entering upon his first term. He is the same person in both terms, it is true, but his terms of office are not the same; they are separate and distinct terms, as much so as where two terms are filled by different persons.
Question not raised below.
When treasurer not estopped to claim commissions.
Fees payable in kind.
It is insisted by counsel for the county that the appellant’s demand was barred by the statute of limitations. But this question was not raised below, and will not be considered here. It is true, as counsel contends, that no formal pleadings are required in the county court, but the statute of limitations was not pleaded orally, or in any manner in the circuit court.
The fact that the treasurer made settlements at the end of his last term, and did not include these commissions in his settlement, does not conclude him, as his right to them was not in issue and was not adjudicated in any settlement. “That which has not been tried cannot have been adjudicated. * * * * That which is not within the scope of the issues presented cannot be concluded by the judgment.” Woerner, Administration, sec. 570, and cases cited, n. 3; Wells, Res. Adj. p. 8, sec. 14; King v. Chase, 15 N. H. 15; Wells, Res. Adj. sec. 371.
We are of the opinion that the court erred in refusing the instructions asked by the appellant, and in giving those for the appellee.
The fees of the treasurer are payable in kind, of course, out of the particular funds.
For the error indicated, the judgment is reversed, and the cause is remanded for a new trial.
As the fees of the appellant, as county treasurer, in this case accrued, and the cause was tried in the circuit court, before the passage of the act approved March 12, 1895, the questions involved here are not affected by that act, which establishes a different rule, so far, at least, as the commissions of county treasurers on school funds are concerned. | [
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George Rose Smith, Justice.
Tried without a jury, Broyles was convicted of DWI and other offenses. Aside from the punishment imposed, the court assessed costs of $302.25, which apparently included the “additional” costs of $250 mandated by Act 918 of 1983. Ark. Stat. Ann. § 75-2531 (Supp. 1983). The appeal comes to this court under Rule 29(l)(c).
The first of two arguments for reversal is that the State failed to prove beyond a reasonable doubt that Broyles was intoxicated within the statutory definition. § 75-2502 (a) (Supp. 1983). In a criminal case the standard for review is not whether the evidence eliminates a reasonable doubt but simply whether the finding of fact is supported by substantial evidence. Gardner v. State, 263 Ark. 739, 746, 569 S.W.2d 74 (1978), cert. denied 440 U.S. 911 (1979).
Officer McCain, who first stopped Broyles, testified that Broyles had weaved into the oncoming traffic lane several times and smelled of liquor when stopped. Broyles successfully fled in his car for a few minutes, but the officer who quickly found and arrested Broyles testified that he was stumbling and staggering, he smelled strongly of intoxicants, his eyes were bloodshot, and he had trouble walking. Broyles refused to take a breathalyzer test, though he did remark at the time: “Drunker than hell.” He testified that he is an alcoholic but had not had even beer that day. He said that for a severe migraine headache he had taken medicine that was labeled 43% alcohol and also contained codeine. Even though he admitted having drunk the whole bottle instead of taking it by the tablespoonful, he said that would have nothing to do with his driving. Upon the conflicting proof there was obviously substantial evidence to support the trial court’s finding that Broyles was driving while intoxicated.
Second, it is argued that the statutory imposition of $250 in additional costs, especially the $75 of that amount that goes to the city or county, is not directly related to the cost of prosecution and must be regarded as a mandatory imposition of punishment rather than as an assessment of costs.
The statute provides that a person convicted of DWI shall pay, “as an additional cost,” the sum of $250. § 75-2531. Of that amount $75 goes to the city or county of the court levying the additional cost. Half the remainder goes to support the Highway Safety Program. That program was established by the Omnibus DWI Act and has five enumerated obj ectives, every one of which relates to drunken driving. § 75-2514 (Supp. 1983). The other half of the remainder goes to the Alcohol and Drug Safety Fund and is to be used to support detoxification services and alcohol and drug abuse rehabilitation and treatment services. § 75-2531.
The decisions elsewhere are not unanimous in deciding to what extent the costs in a criminal case must be directly related to that particular prosecution. An Oklahoma court required a direct relationship between the expense of prosecution and the fixing of costs. Ex Parte Coffelt, 93 Okl. Cr. 343, 228 P.2d 199 (1951). Other courts take a less restrictive approach. In Virginia the court sustained the levy of a fixed amount after every conviction for a traffic offense, to help support the Division of Motor Vehicles in its central record-keeping and reporting. Carter v. City of Norfolk, 206 Va. 872, 147 S.E.2d 139 (1966). It was said: “The costs collected under Code § 14.1-200.1 therefore reimburse the State for expenses incurred by it as a result of prosecutions for traffic offenses.” Quite similar to the case at bar was a Florida decision upholding a statute levying a fixed amount as costs in every case not of a civil nature, to be used for the support of the bureau of law enforcement. State v. Young, 238 So.2d 589 (Fla. 1970). The court reasoned:
It is not unreasonable that one who stands convicted of such an offense should be made to share in the improvement of the agencies that society has had to employ in defense against the very acts for which he has been convicted. We perceive here a direct relationship. . . .
Our own cases uphold the imposition of costs imposed without a precise relationship to the actual cost of the particular prosecution. In sustaining the assessment of a uniform fee for the prosecuting attorney in all cases we said: “These charges are not part of the punishment of the accused. Costs are awarded in order that the State may prosecute the guilty at their own expense.” Wellington v. State, 52 Ark. 447, 12 S.W. 562 (1889). In a civil case we rejected a contention that the unused portion of advance costs had to be returned to the litigant rather than going into the general revenue to help defray the expenses of the courts. Marshall v. Holland, 168 Ark. 449, 270 S.W. 609 (1925). Again, in McArthur v. Smallwood, 225 Ark. 328, 281 S.W.2d 428 (1955), the court upheld a statute levying a fixed amount as costs in all cases, civil and criminal, to secure bonds issued for the constrution of a building to house the Supreme Court, its clerk, its library, and the attorney general. From the opinion:
The mere fact that there are no appeals to the Supreme Court in a substantial number of cases filed in the circuit, chancery and probate courts ... is immaterial. The right of appeal is a valuable asset to any litigant and is available to all litigants. The mere fact that these rights may not be utilized in every case does not detract from their importance and there is no constitutional objection to levying costs to contribute to the expense of the maintenance of those rights.
Inasmuch as the State may prosecute guilty persons at their own expense, we perceive no good reason why the legislature may not also require drunken drivers to share in the cost of maintaining agencies that society has had to create to make its highways safe from the risks those drivers impose upon the innocent, and to attempt to rehabilitate and treat those drivers. There is no specific contention by the appellant that the amount of costs allocated to those purposes exceeds the expenses incurred by the State to achieve the purposes. Even if such a contention were made there is nothing in the record to indicate that the amounts allocated are excessive. Statutes are presumed to be valid; so the party who alleges the invalidity of a statute has the burden of proving that claim. Handy Dan Imp. Center v. Adams, 276 Ark. 268, 633 S.W.2d 699 (1982). Where, as here, proof is required to demonstrate the validity of a statute, the absence of evidence to overcome the presumption of validity requires us to sustain the statute. Holman v. City of Dierks, 217 Ark. 677, 233 S.W.2d 392 (1950). Here the appellant offered no proof on the issue.
The appellant does argue that the “additional costs” of $75 earmarked for the city or county are paid into general revenue funds instead of being allocated to a particular purpose. Even so, there is no proof either of the amount of costs already being assessed or of the essential fact that the total of pre-existing costs and additional costs exceeds the expenses incurred by the cities and counties. Without such evidence we are not in a position to say that the legislature has attempted to resort to mandatory punishment in the guise of costs. This opinion of course does not bar a future challenge to the statute, supported by the necessary proof.. See Ark. Motor Vehicle Comm’n v. Cliff Peck Chevrolet, 277 Ark. 185, 640 S.W.2d 453 (1982).
Affirmed. | [
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Riddick, J.,
(after stating the facts). The learned counsel for defendant have set up many grounds why the judgment of the circuit court in this case should be reversed. We will now proceed to notice such of these grounds as seem to us necessary to consider here.
In the first place, the record shows the facts that gave the circuit judge power to hold the special term of circuit court ordered by him, and at which the defendant was indicted. It is said that, had the trial of Hamilton commenced at the special term, it could not have been concluded before the commencement of the regular term of the Hogan circuit court, and that it would have interfered with that court. But whether, had the trial commenced at the special term, it could have been concluded before the time of the convening of the Hogan circuit court, is a matter concerning which we need not speculate. The trial did not commence at the special term, and such special term did not in any way interfere with the Hogan circuit court. The validity of the proceedings at such special term cannot be affected by the contention that, if something had occurred that did not occur, the special term would have interfered with the regular term. Enough for us to know on that point is that the special term did not interfere with any other tgrm of the court. The motion to quash the indictment on this ground was properly overruled.
When irregularities waived.
Sufficiency of indictment for murder.
When not error to refuse continuance.
It is further said that the indictment should have been quashed for the reason that Hamilton was not allowed to be present while the grand jury that returned the indictment was being impaneled, and was given no opportunity to challenge grand jurors for cause. Appellant does not show that any grand juror was a prosecutor or witness against him, or that he was prejudiced by not being allowed the opportunity to challenge. Further, he did not make this a ground of his motion to quash in the circuit court, and it is too late to insist upon it now, for it was waived by the plea of not guilty. Miller v. State, 40 Ark. 492.
The demurrer to the indictment was properly overruled. When an indictment alleges that the defendant “did unlawfully, wilfully, feloniously, and of his malice aforethought, and after deliberation and premeditation, kill and murder,” etc., it is not necessary also to allege that the killing was “malicious,” or to use the word “malicious” in addition to the words used. The indictment in this case contains every allegation necessary under our statute to constitute a sufficient indictment for murder in the first degree. Turner v. State, 61 Ark. 359.
It was not error to refuse a continuance on account of the absence of witness Felts, by whom defendant claimed that he could show that McAbee had on one occasion made an unprovoked assault upon said Felts with a knife. Such assault, if made, had no connection with the killing of McAbee, and was not competent evidence of the character of McAbee, for it could not be shown that McAbee was a man of violent and uncontrollable passion by proof of particular acts of violence having no connection with the crime under investigation. Campbell v. State, 38 Ark. 508; 2 Bishop, Cr. Pro., sec. 617. Ag'ain, there is nothing in the motion or evidence tending to show that Pelts was within the jurisdiction of the court, or that his attendance or testimony could have been procured by a continuance of the case.
Neither can we say that the court should have allowed defendant further time to prepare for his trial. It may be that the time allowed Hamilton to prepare for his defense was shorter than customary, but we cannot say that more time was necessary. The killing occurred in a neighborhood where both himself and McAbee were well known. No one besides McAbee and Hamilton was present at the killing. Hamilton was the oúly living witness of the tragedy, and it was largely a question of whether or not the jury would believe his version of the facts. So far as we can see, every fact tending to throw light on the transaction was presented to the jury. If counsel for defendant had little time after they were retained to prepare fpr trial, it was mainly the fault of defendant. He was arrested and confined in jail on this charge for several weeks before the court convened, and no reason is shown why he could not have employed counsel earlier than he did. It may be true that there was no urgent reason for calling a special term to try this case. As the regular term was near at hand, it might have been less expensive to the public, and as well in other respects, to have allowed the case to pass till that time; but that was a question within the discretion of the circuit judge, with which we see no reason to interfere. We must repeat the settled rule that motions for continuance are addressed to the sound discretion of the trial judge, and a refusal to grant such a motion is not ground for a new trial, unless it clearly appears to have been an abuse of such discretion, and manifestly operated as a denial of justice. Thompson v. State, 26 Ark. 326; Edmonds v. State, 34 Ark. 726; Jackson v. State, 54 Ark. 244; Price v. State, 57 Ark. 167.
Discretion of court in excusing jurors.
As to separation of jury.
Objection not raised below.
Neither the dismissal by the circuit court of a juror from the regular pane] on account of the feeble state of the juror’s health, nor the rejection of two-of the tales-men because they had formed opinions, requires any consideration here, for those matters were clearly within the discretion of the court. Hurley v. State, 29 Ark. 22; Wright v. State, 35 Ark. 641; Mabry v. State, 50 Ark. 498; Vaughan v. State, 58 Ark. 361.
It is said that the court, against the objection of the defendant, permitted the jurors to separate before the case was finally submitted to them. This also was a matter within the discretion of the court. Sand. & H. Dig., sec. 2236. But in Johnson v. State, 32 Ark. 309, it was remarked by this court that “such discretion should be exercised, especially in trials for felony, with the utmost caution.” The great interest usually taken by the public in trials for offenses punishable by death, and the danger that either the state or defendant may suffer prejudice from such separation of the jurors makes it in our opinion rarely prudent for a court to permit such separation in trials for capital offenses, when either the counsel for the state or defendant objects. It is not always easy in such a case to ascertain the influences to which a separation has subjected the jurors. For this reason, as the defendant objected to the separation of the jurors, we believe that it would have been better to have kept them together. But as the statute leaves this matter to the discretion of the circuit court, and as there is nothing to show that the defendant was prejudiced by the separation, the exception must be overruled, and a new trial on that ground refused.
Another contention is that the court wrongfully permitted witnesses, who described the appearance of certain tracks made by some one near where the body of deceased lay, to state that these tracks appeared to have been made by a man while squatting, and to indicate opinions as to the position of the man at the time he made the tracks. It is said that these witnesses got off the stand, squatted, extended their' arms and hands, and held themselves in position as if firing a gun; thus intimating to the jury their opinion upon a material point in the case. But the record does not support this contention. It is true that after the testimony of several of the witnesses about these tracks follows this statement in parenthesis, “Here witness demonstrated to the jury;” but what or how he demonstrated is not shown. The record does not show that the defendant or his counsel made any objection to these demonstrations. No exceptions were saved, nor is the matter referred to in the motion for new trial, and it cannot be considered here. Johnson v. State, 43 Ark. 391; Werner v. State, 44 Ark. 122.
Sufficiency of court’s charge as to murder in second degree
The contention that the presiding judge did not, in his charge to the jury, sufficiently define murder in the second degree cannot avail. He read the statutory definitions of the different degrees of homicide, and the punishment therefor. In addition thereto, he gave instructions defining murder in the first degree and voluntary manslaughter, and the following instruction: “If you are satisfied beyond a reasonable doubt that defendant is guilty of murder in some degree, but entertain a reasonable doubt as to the degree, you will convict only of murder in the second degree. If you are satisfied beyond a reasonable doubt that defendant is guilty of some grade of criminal homicide, as explained in these instructions, but entertain a reasonable doubt as to whether it is manslaughter or some degree of murder, you will convict only of manslaughter. If you entertain a reasonable doubt as to whether defendant is guilty of any degree of criminal homicide, explained in these instructions, you will acquit the defendant.”
instruction as as to decredibility approved.
As the circuit judge had defined the crime of murder in the first degree, it is clear that, had the jury entertained a reasonable doubt as to whether defendant was guilty of that degree of homicide, they would have returned either a verdict of some lower degree of homicide, or of not guilty. If there was any defect in the charge on this point, we think that no prejudice resulted to the defendant. In addition to this, it may be said that neither of the instructions requested by defendant contained a satisfactory definition of murder in the second degree. He should have presented a correct instruction if he desired one to be read to the jury on this point.
The contention that the presiding judge, sometime after the jury had retired, recalled them, and read to them a single instruction, defining murder in the first degree, is not supported by the record. The record does show that, after the case was submitted, the jury-came in on their own motion, and requested the judge to repeat the instructions, which he did, and also added two other instructions, touching on the question of motive and the failure of the defendant to flee. Both of these instructions were favorable to defendant, and not in any way prejudicial.
It is further contended that the presiding judge Jr o j cs erred in telling the jury that they had the right, in considgriag- the testimony of the defendant, to take into consideration his interest in the result of the verdict, in order to determine the proper weight to be given to his testimony. It is unnecessary to set out this instruction, for it is admitted that it-states the law correctly, and it is a copy of one given in Vaughan v. State, 58 Ark. 353. But it is said that the defendant was prejudiced by being thus singled out from the other witnesses. We think that this contention is not tenable. In the first place, a defendant on trial is already singled out by the indictment and the fact that he is on trial and directly interested in the result. His position in the trial has already singled him out, and for this very reason it may be necessary in some cases to give an instruction on this point. To illustrate, let us suppose a case in which an attorney for a defendant who has testified argues to the jury that the defendant of all men best knows the motives that prompted the act under investigation, and that the greatest weight should be attached to his testimony. Net us suppose that the attorney for the state, who looks at the matter from another standpoint, argues for his side that a defendant accused of a high crime, especially one accused of a capital offence, and whose life depends to some extent on his own testimony, has such a strong inducement to protect himself, if necessary, at the expense of the truth, that his testimony is entitled to little, if any, weight, and that the jury should disregard it entirely. This is no far-fetched supposition. Attorneys have the right to argue the weight to be attached to the testimony of witnesses, and such arguments are often heard in the trial courts. What is the presiding judge to do in such a case? Is he to sit silent, and allow the jury to adopt the advice of that attorney in whom they have the most confidence, or whose views they feel most inclined to follow? We do not think so. It is the duty of the judge to instruct the jury in the rules of law by which the testimony is weighed and its credibility tested. These rules are simple, and can be easily stated in a way to prejudice no one.
The defendant has the right to testify, and the jury should give his testimony the same impartial consideration that they accord to the testimony of other witnesses. They should not arbitrarily disregard what he testifies, simply because he is the defendant, nor, on. the other hand, are they required blindly to receive a fact as true because he says that it is true; but they are to consider his testimony in connection with the other facts in proof, in order to determine whether his statements are true and made in good faith, or made only to avoid conviction. The jury are the exclusive judges of the weight of such testimony. In considering the degree of credit to be given it, they may take into consideration his appearance and manner while testifying, the reasonableness or unreasonableness of his statements, and his interest in the result of the verdict. After a due consideration of his testimony, in connection with the other evidence in the case, they should give it such weight as they may deem it entitled to receive, their sole object being to ascertain the truth.
We do not see that an instruction on this point would prejudice either the state or defendant, but, as jurors are not always highly intelligent, it might in some cases avoid confusion in their minds, and tend to promote the ends of justice. Take the case at bar. The defendant was the only eye-witness of the killing. Was it not proper for the jury to understand clearly that, although no other witness saw or could give the details of that tragedy, yet that they were not bound to take his statements as true, and that it was their duty to determine whether such statements were true or false after a careful consideration thereof in connection with the whole evidence? If it was necessary for them to have this information, it was then not improper for the judge to give it to them. It is true that the judge should be careful not to intimate an opinion as to the weight of the testimony. Such an instruction should be both carefully drawn and read; otherwise, prejudice may result. A high and important trust is imposed by the law upon our circuit judges in this as in many other respects, — that, under all circumstances, they secure to the defendant, as well as the state, a fair and impartial trial, without favor or prejudice. Of each of them, as of Lord Chief Justice Holt, it should be truly said, that the criminal before him knew that “his judge would wrest no law to destroy him, nor conceal any that would save him.” But while, above all men, the judge presiding at a criminal trial should be impartial, yet great injury may be done by restricting his powers too closely. The law must be enforced. “If,” says Judge Dillon, “we are to expect satisfactory verdicts, the presiding judge must in his charge make the way of the jury plain and clear, and he must have the power, as well as the legal ability, to do this.” The Laws and Jurisprudence of England and America, 127.
?efuseédf
While it may be possible to draw an instruction on this point in language more apt than the one given in this case, yet that instruction is copied from one given in the case of Vaughan v. State, 58 Ark. 362, and which was held not erroneous. The same ruling was made in Jones v. State, 61 Ark. 102. Although some doubts as to the propriety of such an instruction were expressed in Vaughan v. State, still we all agree that no error was committed by giving such instruction, while a majority of the judg'es are of the opinion that it was proper and right to give such an instruction in this case. The decided weight of judicial opinion, as we believe, supports this conclusion. Jones v. State, 61 Ark. 102; People v. Calvin, 60 Mich. 123; People v. Knapp, 71 Cal. 10; State v. Sterrett, 71 Iowa, 386; State v. Maguire, 69 Mo. 202; cases cited in Vaughan v. State, 58 Ark. 365; also 2 Thompson, Trials, sec. 2445, and cases cited.
It is urged that the court did not sufficiently define the right of self-defense. But we need not discuss that question, for there is no evidence to show that defendant acted in self-defense, and nothing upon which to base such an instruction. The defendant, who testified in his own behalf, was the only witness of the killing, but he does not say that he killed McAbee to protect himself, or anything from which that fact can be inferred. On this point, he said, in his direct examination: “McAbee told me to get out of his field, and pulled out his knife, and came at me with it, waiving- his hand, and saying he would tear me all to pieces. I told him not to come, to stand back. At that time my gun was resting on the ground, on the butt end of the gun. He kept coming at me. So I raised the gun, and fired, when Mr. Abee staggered, and fell backwards. I then walked up in about two feet of him, and stood there a moment or so, and heard him groan a time or two.” On cross-examination, he said: “There was no obstruction behind me, to keep me from retreating- when the deceased was cutting at me with a knife. I stood there, and raised my gun, and shot him just as he was swaying around like this [here defendant showed how deceased swung his arm around]. The deceased, as I raised my gun, had left the plow eight or ten feet, and I got mad when I saw he was coming at me, and when I raised my gun he swung around, and said, ‘Hook out there! What are you going to do there?’ when I shot him, my gun being in four feet of him.” It is to be presumed that defendant stated the facts as favorably to himself as the truth would warrant. But it is plain from his own testimony that McAbee was not at any time within striking distance of him, and that McAbee, by waiving his hand and knife at defendant, was not endeavoring to cut him, but only to intimidate him, and get him to leave the field where McAbee was at work. This act of McAbee aroused the anger of Hamilton. “I got mad,” he says, “when I saw he was coming at me.” The most favorable view of the facts than can be taken for defendant is that he had no premeditated intention of killing McAbee, but shot him under the influence of a fit of anger, suddenly aroused by the acts and threats of McAbee in rudely ordering him from the field. Under no reasonable view of the facts could the jury have found that this killing was justifiable.
contradict* statements,
Finally, it is said that the evidence was not sufficient to support the verdict. It is argued that the state, having proved the statement of Hamilton, made at the' time he borrowed the gun from Dawson, to the effect that he wanted it to shoot ducks, cannot now assert that those statements were false, but is bound by such statements. It is clear that this is not the law. Such statements go to the jury in connection with all other facts and circumstances in proof, and it is for them to decide whether they are true or not, and what conclusions to draw from them. The evidence, we think, was amply sufficient to support the verdict. The defendant, Hamilton, was a young man twenty-six years of age. McAbee was over twice as old, with a right hand so badly crippled that it was of little use. The evidence shows that Hamilton went to McAbee’s field, where McAbee was plowing, and there killed him, under circumstances which justified the jury in finding that the killing was not only unnecessary, but that it was intentional and premeditated.
Counsel for defendant say that he owned no property except a hundred bushels of corn, upon which the state claimed a lien; that, on account of the penniless condition of defendant, every step taken by them was under the most adverse circumstances. The question of the right of defendant to use this corn to pay the expenses of his defense is not raised in the record, or before us for decision, but we willingly bear testimony to the fidelity and energy with which counsel for defendant have striven to save the life of this unfortunate man. That their efforts in that direction have been thus far ineffectual is, in our opinion, due to the fact that the evidence is such as to leave no question of his guilt.
We are convinced that the judgment is right, and it is therefore affirmed. | [
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Hughes, J.
Larry Brown was indicted by the grand jury of the Eastern district of Lawrence county, at the September term, 1895, for the crime of robbery, alleged to have been committed in the forcible taking of the sum of $205 from the person and against the will of one C. D. Rominger, in said county and district. Appellant entered his plea of not guilty, and filed his application for a change of venue, which was granted, and the cause was transferred to the Independence circuit court for trial. Thereafter, the cause coming on for trial, a jury was impanelled. In the opening statement to the jury, one of the counsel for the defendant stated, amongst other things, “that the evidence would show that this was a hellish and damnable conspiracy to put the defendant in the penitentiary; that he would show and prove by the evidence that one H. N. Faulkinbury, an emissary of the Iron Mountain Railway, was at the back of the prosecution, and alone responsible for it; that he had manufactured it out of whole cloth; that he had paid the witness Rominger to swear that he had been robbed by the defendant, and that he (Faulkinbury) was present to see that he swore straight; that the railroad company and Faulkinbury were together handling this man; that they had paid him and furnished him passes to come here to swear, and Faulkinbury’s job depends on this man’s conviction.”
There was evidence tending to show that the defendant was guilty of either robbery or larceny, which must be determined from the evidence, and the principles of law applicable thereto, as laid down in the case of Routt v. State, (61 Ark. 594) decided at the present term of this court, which is similar to case at bar.
The evidence shows that, if an offense was committed by the appellant, it was committed at the town of Hoxie, in the county of Lawrence. On the trial the state introduced I. J. Bagley, a witness in her behalf, who testified as follows: “My name is I. J. Bagley, and I live in Lawrence county, and am familiar with Hoxie.” . Q. “State what interest the railroad company has in enforcing the law at Hoxie;” to which the defendant objected, which was overruled by the court, and the court stated, in the presence of the jury, that he did not know but that the railroad company would be liable to their passengers for a robbery that had been committed on their passengers while on their trains, and that they would be responsible for a robbery on • one of their passengers on railroad property; that counsel for defendant, Mr. Gibson, had stated to the jury, in opening the case, that the railroads were instrumental in bringing this prosecution, and that they had sent their private detective here to see that the witness testified straight, and that the evidence ought to go in to prove that it was not true. The defendant at the time excepted to the ruling of the court, as well as the language of the court in the presence of the jury, and stated to the court that it was not the intention to urge to the jury that the Iron Mountain railroad was doing something that they ought not to do, and that they were attempting to do only what every good citizen would do, and that was to see that the law was enforced, and that they did not blame them for their active interest; but that they desired to show that the detective, Paulkinbury, had been in a position to influence the witness Rominger, and they had furnished him a pass, and the evidence would be introduced only for the purpose of attacking the credibility of the witness Rominger. Then, in response, the witness answered: “Hoxie is the crossing of the St. Louis & Iron Moutain Railway, and for the past five or six years robberies have occurred there until it was unsafe for any one to get out of the depot. It was dangerous, and the railways were trying to stop it.” “Do you know what reputation Hoxie bears?” (Objected to by the defendant, and overruled, and exceptions saved.) “Hoxie bears a bad reputation. It has been infested with a gang of gamblers, and they have been the people who are reported to have committed these robberies in the past five or six years. It is a hard place, and there have been a number of robberies committed there.” To both answers of these questions propounded to said witness the defendant at the time objected, and the said objections were overruled, and the defendant at the time excepted.
The court gave instructions, in effect, that theNstate must prove each and every material allegation in the complaint, — either that defendant committed crime, or that he was present, aiding and abetting others to do so; and, as there were no objections made to,them, we do not insert them here. The jury returned a verdict of guilty, and gave him seven years.
The appellant filed his motion for new trial, and set up the following grounds of error of the court: (1) In permitting the state to ask witness Bagley what interest the Iron Mountain Railway had in the enforcement of the law. (2) In stating, in the presence of the jury, that it is probable that the railroad company would be responsible for the robbery of its passengers, and that it is possible that it would be responsible for any robbery of its passengers committed on its grounds or premises. (3) In permitting Bagley to testify that there had been numerous robberies committed at Hoxie during the past five or six years by the gamblers who frequented the place. (4) In permitting the state to ask what the general reputation of Hoxie was, and in permitting Bagley to state that the town of Hoxie was the junction of the Kansas City and Iron Mountain railroads, and that the place was notorious as being infested with a gang of thieves and robbers, and that they preyed upon the passengers coming over the railroads; that the place Was so bad that it was considered unsafe for a passenger to go out of the depot, for fear of being robbed. (5) In permitting associate counsel for the state, in the opening argument, to tell the jury that Hoxie was the home of thieves, robbers, gamblers, and whoremongers, and that was the kind of people who lived there, with but few exceptions, and that Brown was an infernal liar, thief, robber and scoundrel, and had been a robbing scoundrel all his life. (6) In permitting the state’s attorney, in the closing argument, to tell the jury the good people of Lawrence county demanded this gang of thieves be proved up, and that a whole army of the Hoxie gang was here, and not one of them dared to go on the stand, as a few of the best people of Lawrence county were here to impeach them, when no evidence of this character had been introduced to the jury. (7) In permitting the state to excuse one of the jurors, who had been selected and accepted, after the jury was complete. (8) The verdict was contrary to the evidence. (9) Contrary to the law. (10) Contrary to both the law and the evidence.
All of the exceptions were properly saved to overruling of motion, as well as to errors mentioned in said trial. The exceptions taken are: (1) To the language of the court in the presence of the jury; (2) to the admission of Bagley’s testimony; and, (3) to the remarks of counsel for the state.
majcksoft pre^Vdicikei.are
Admissibility oí evidence.
1- When witness Bagley was introduced, and the question, “What interest has the railway in the enforcement of the law at Hoxie?” asked, the court, in the presence of the jury, remarked that, as the railroads would be responsible for robbery of their passengers, etc., and as Mr. Gibson had stated that the railway was instrumental in bringing this prosecution, etc., the evidence ought to go in. The attorney who opened the case was rather unfortunate in the use of intemperate language, and, perhaps, went out of the ordinary line a little, but, as it was merely a statement of what the defendant would offer in proof, it was no part of the evidence, and it was clearly wrong for the court to give utterance to the language he did, especially when, at the time, counsel disclaimed any intention of attacking the railway for their interest, and stated to the court that that sort of proof would only be offered to attack the credibility of the witness Rominger. The law, as uttered by the court, was wrong, and was prejudicial to the defendant.
2. The admission of Bagley's testimony. On cross examination, the appellant testified: “I gamble and have gambled in various places.” On the trial of this cause, Bagley, a witness for the state, was permitted, over the objection of the appellant, to testify: “Hoxie bears a bad reputation. It has been infested with a gang of gamblers, and they have been the people who are reported to have committed these robberies in the past five or six years. It is a hard place, and there have been a number of robberies committed there.” Hoxie is the place where the alleged robbery is charged to have been committed. The appellant testified on the trial that he gambled, and had gambled in various places. It was error to admit the above testimony of the witness Bagley. The appellant was not on trial for the bad reputation of Hoxie, but on a charge of robbery. It is very apparent that this evi dence hada tendency to prejudice the appellant with the jury. They would probably, upon such testimony, conclude that, as Hoxie was infested with a gang of gamblers, and they had been the people who are reported to have committed these robberies in the last five or six years, and the defendant is a gambler, it is but fair and reasonable to find that he is the guilty party in this case. The admission of this testimony warranted the jury in considering it, and in attaching much importance to it. It was damaging testimony. For the error in admitting this testimony, the judgment is reversed, and the cause is remanded for a new trial.
3. The remarks of the prosecuting attorney objected to, though probably made in the excitement of the argument, were not proper, but, whether sufficient in themselves to call for a reversal of the judgment, we do not determine, as the case is reversed on another ground, and the remarks will probably not be repeated. | [
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Battle, J.
The Southwestern Arkansas College was a corporation engaged in maintaining a school in Miller county, in this state, and was the owner of property, consisting of land, a brick building, subscriptions, and furniture. On the second day of August, 1890, W. A. Forbes and others, styling themselves “trustees,” entered into a contract with it in the words and figures following, to-wit:
“Whereas, the board of directors of the Southwestern Arkansas College' have this day transferred to W. A. Forbes, W. H. Tilson, John Hallum, H. W. Stevens, John C. Watts, H. H. Echols, B. R. Attaway, John Winham, J. B. Eumbley, E. F. Friedell, Chas. S. Todd, R. J. Harriston, Noah P. Sanderson, E. D. Merideth, and John B. Nix, and their successors in office, the right, franchise, and privilege heretofore appertaining and belonging to the Southwestern Arkansas College, located on College Hill, Miller county, Arkansas, which transfer includes all the real and personal property belonging to the Southwestern Arkansas College, also the unpaid subscription belonging to said college, for and in consideration for which the said above-named trustees and their successors in office obligate and bind themselves as trustees, and their successors in office, to pay all liabilities of said Southwestern Arkansas College as they now exist, to honor the subscription of stock for tuition, and in all respects to assume the place, duties, and responsibilities of the above said directors of said college; and, furthermore, at all time during the scholastic year to maintain a first-class school, which school shall in its course be in all respects equal to the curriculum of ordinary colleges through the sophomore year, and up to the junior year, in classical, literary and scientific course, and at all times to maintain in good condition and repair the buildings now on the ground, and from time to time, as necessity may require, to add thereto such buildings as may be necessary to carry on the school herein provided for.
“And it is further agreed and understood that if the said board of trustees fail to comply with these conditions after reasonable notice given to said board of trustees, the property herein conveyed is to revert to the said board of directors of Southwestern Arkansas College, or their successors or assigns; and we, for ourselves and our successors in office, as trustees, agree to surrender the possession of said property, real and personal.
“Witness our hands and seals, this 2d day of August, 1890.
“W. A. Forbes,
President Board of Trustees.
“F. F. Friedell,
As Secretary Board of Trustees.”
Under this agreement, Forbes and his associates in the enterprise took possession of the property, and entered, upon the performance of their contract; and, at a meeting held by them, authorized and directed W. A. Forbes, as their president, and E. F. Friedell, as their secretary, to execute to Osgood Whittemore two notes for $138 each, due, respectively, six and twelve months after date, in payment of a debt assumed by them in the contract with the “Southwestern Arkansas College.” In the exercise of this authority Forbes and Friedell executed the two notes, a copy of one of which, which serves to show in what manner both were written and executed, is as follows:
“$138.00. Texarkana, Ark., July 1st, 1891.
Six months after date, the Southwestern Arkansas College promises to pay to the order of Osgood Whittemore the sum of one hundred and thirty-eight dollars at the Gate City National Bank, Texarkana, Arkansas, for value received, without defalcation or discount, with interest at the rate of ten per cent, per annum from date until paid. This note is given in settlement of B. Fronhaff’s account for labor and material furnished in the building of the Southwestern Arkansas College, in Miller county, Ark.
Southwestern Arkansas College,
By W. A. Forbes, Prest, of Trustees,
Southwestern Arkansas College,
By E. F. Friedell, as Secy.”
Forbes and those named with him in their contract with • the Southwestern Arkansas College, without organizing themselves into a corporation, undertook to perform their undertaking for about two years, and failed, when they abandoned the same, and surrendered the property, real and personal, which they had received from their predecessors, subscriptions excepted, leaving the two notes unpaid. Thereafter, on the 14th of November, 1892, Osgood Whittemore brought-an action on the notes against Forbes and his co-contractors, as late partners, doing business under the firm name and style of “the Southwestern. Arkansas College.” The defendants, answering, denied that they executed the notes in the capacity of partners, and that they were individually liable for the payment thereof, and alleged that the notes were contracts of a. corporation. In the trial of the issues in the case, all the foregoing facts were proved. The plaintiff recovered judgment, and the defendants appealed.
The only important question in the case is, were the appellants individually liable for the payment of the notes sued on ? They were not the agents of the college, nor members of it. In their contract with it, each party preserved its individuality, neither being merged into the other. Appellants agreed that, if they failed to comply with their contract, the property conveyed should “revert” to the “Southwestern Arkansas College,” its assigns, or successors, - thereby recognizing each other as distinct parties, and that they would remain so. Their assumption of the name of the corporation from which they purchased did not constitute them such a corporation, or give them the right to act in a corporate capacity. They never undertook to organize themselves into a corporation, and were not a corporation de facto. Having undertaken in writing, for a valuable consideration, to pay the debt of another, they are as much liable as partners as they would have been had there been no pretense of incorporation, — like the members of any other merely voluntary association in respect of personal liability, — and are personally and individually liable. Garnett v. Richardson, 35 Ark. 144; Pettis v. Atkins, 60 Ill. 454; Bigelow v. Gregory, 73 Ill. 197; Hurl v. Salisbury, 55 Mo. 310; Fuller v. Rowe, 57 N. Y. 23; 1 Thompson on Corporations, secs. 218, 417, 503, 5002; 3 id. sec. 2992; 1 Cook on Stock, Stockholders and Corporation Law, (3 Bd.), sec. 234; 2 Morawetz on Corporations (2 Bd.), sec. 749.
Judgment affirmed. | [
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Wood, J.
This is an appeal from a judgment for damages against the appellants as receivers of the City Electric Street Railway Company, for the negligent “running down” of a team in the city of Little Rock. The defense was the contributory negligence of appellees in allowing the team to be loose upon the streets. The proof upon this point was detailed by a witness as follows: “It was the custom to tie the horse to the dash-board of the wagon to which he was harnessed, by tightening the reins until the traces were slack, and the horse could not move forward without pulling the wagon by his mouth. On the night in question, it was tied in the usual manner at the depot.” While the driver was at the train looking for the mail, the horse strayed off, the witness not knowing how he got loose, and went upon the track of the street railway, and was killed by an electric car.
The facts were undisputed, but fair-minded men 0f reasonable intelligence, might very well differ as to whether the method of fastening in proof was proper, if, indeed, it was fastening at all ; and therefore the question as to whether appellees were negligent in pursuing that method,and, if negligent, as to whether such negligence contributed proximately to the injury complained of, was for the jury to pass upon, under proper instruc tions. Railroad Company v. Stout, 17 Wall. 663; Thompson, Neg. 1236; Detroit & W. R. Co. v. Van Steinburg, 17 Mich. 99; Carsley v. White, 21 Pick. 256; Rindge v. Inhabitants of Coleraine, 11 Gray, 157.
in-to negucompany!wa3r
Appellants asked the following: “You are in structed that, even should you find that defendants’ employee was negligent, yet, if you should also find from the evidence that the plaintiffs’ employee, to whom had been entrusted the care of the team, was .likewise guilty of negligence, and that such negligence directly contributed to cause the injuries complained of, your verdict shall be for the defendants, unless you further find that the defendants’ employee in charge of the car became aware of the negligence of the plaintiffs’ servants in time to have avoided injuring the team by the exercise of proper care, and failed to use such care.” The court refused this, but modified it by inserting after the words “became aware of the negligence of the plaintiffs’ servants,” the following, “or might have become aware thereof by the exercise of reasonable care,” and gave it as modified, over appellants’ objection. The request should have been granted without modification. It was in accord with the rule of contributory negligence announced by this court in several cases. Harvey v. Rose, 26 Ark. 3; St. Louis, &c., R. Co. v. Freeman, 36 Ark. 41; Bauer v. St. L., I. M. & So. Ry., 46 id. 399; L. R. & Ft. S. R. Co. v. Cavenesse, 48 id. 124, cited in brief for appellants.
It is contended, however, for appellees, that a different rule obtains as to street railways, for the reason that it is the duty of those in charge of a street car, and particularly of the driver, motorman, or gripman, to exercise ordinary care and diligence to ascertain whether the track ahead is clear, in order to avoid striking persons or objects upon or near the same. Booth, Street Railway Raw, sec. 306. And it is said that, prior to the act of April 8,1891, no such duty was imposed upon railroads as to persons and live stock upon their tracks, and hence the difference in the rule. Counsel are mistaken in this; for, prior to the decision of this court in M. & L. R. R. Co. v Kerr, 52 Ark. 162, and the act of 1891, it was fhe duty of railroads to “use all reasonable efforts to avoid harming an animal after it was discovered, or might by proper watchfulness, have been discovered, on or near their track.” L. R. &. Ft. S. Ry v. Holland, 40 Ark. 336; L. R. &. Ft. S. Ry v. Finley, 37 id. 562. The act of 1891, so far as domestic animals are concerned, only had the effect to declare the law as it was before the decision of M. & L. R. R. Co. v. Kerr, supra, overruling former cases. As to persons going upon a railway track not at a crossing, they were regarded as trespassers, and it was not the duty of railroads to keep a lookout for them, and they were guilty of no negligence in failing to do so. Since the passage of the act of 1891, railroads are guilty of negligence if they fail to keep a constant lookout for persons as well as property upon their tracks. This statute (of 1891; sec. 6207 Sand. & H. Dig.), it will be observed, imposes upon railroads practically the same duty as was imposed by the common law upon street railway companies, namely, to keep a lookout for persons and property upon their- tracks; and it is unnecessary for us to consider whether the term “railroad,” as used in the act, was intended to include street railways. It may be conceded that a likes principle is now applicable to both; but neither the common law duty of street railways, nor the statutory duty of railroads to keep a constant lookout for persons or property upon their tracks, abrogates the cardinal doctrine of contributory negligence.
The modification, if approved, would virtually rehabilitate the old case of Davies v. Mann, 10 M. & W. 546, which ignores the doctrine of contributory negli gence, and teaches the exploded heresy of comparative negligence. This case was cited with approval in L. R. & Ft. S. Ry. v. Finley, supra, relied upon by counsel for appellee. But .in that case the plaintiff was not guilty of any contributory negligence, and the approval of the. principle announced in Davies v. Mann was not necessary to the decision of the question then before the court, and therefore the quotation of the learned judge from that case was dictum. Certain it is that the doctrine of com- j parative negligence has no place in our law, and the fun-/ damental rule of contributory negligence, when proved as a defense in actions of this kind,'still prevails, notwithstanding the decision of this court in Citizens Street Ry. v. Steen, 42 Ark. 321. The opinion of the learned judge in that case, however, doubtless misled the lower court into the error under consideration, for it approved a charge as a whole which, along with other requests stating the law of contributory negligence correctly, also contained one employing language similar to the modification which the court gave in this case. It seems, however, from the comments of the judge upon the charge in Citizens Street Ry v. Steen, supra, that the attention of the court was not specifically directed to the point we are considering; “for,” says he, speaking of the charge, “it explained to them that, though some negligence might be shown on the part of plaintiff, yet if the defendant, knowing of that negligence, might, by the exercise of ordinary care, have avoided same, an action would lie for the plaintiff.” Continuing, he says: “They were told that if the plaintiff, by her own negligence, contributed to the injury, the company would not be liable, unless the injury was wilful, or unless it resulted from the want of ordinary care on its part to avert it after the negligence of plaintiff had been discovered,” — thus showing that the judge delivering the opinion had in mind the doctrine of contributory negligence as it had been before declared by this court. [And the same has been frequently announced since.] But he seems to have overlooked the fact that the use of the words ‘ ‘or by reasonable diligence might have been discovered,” in the first instruction asked by plaintiff in that case, and which are similar to the modification added by the court to the third request of appellant in this case, added a qualification so important and far reaching as to even overturn the very doctrine of contributory negligence which he was announcing; for it must be seen that, if this principle be sound, it sweeps away every duty and obligation of the plaintiff to exercise ordinary care for the protection of himself and property. He may be reckless of danger, and heedless of consequences, either deliberately or carelessly putting himself or his property upon the tracks of railroads in front of moving trains; and yet, if it can be shown, in case of injury, that it might not have happened if the defendant had exercised ordinary care to discover the situation, the plaintiff may still recover. In other words, it matters not how careless or reckless the plaintiff may be in contributing to his own hurt, the defendant, nevertheless, is liable if he has also been negligent. This would be erroneous and unjust. The true rule, which no amount of amplification can simplify, is that, whenever the negligence of the plaintiff contributes proximately to cause the injury of which he complains, the defendant is not liable. Beach, Cont. Neg. sec. 27; O'Keefe v. Chicago, &c. R. Co. 32 Iowa, 467; 4 Am. & Eng. Enc. Law, p. 17, 4 note, 3, Pierce; Railroads, 323. But, notwithstanding the prior negligence of plaintiff, if the defendant has discovered his situation in time to avoid injuring him by the use of ordinary care, and fails to exercise such care, then the defendant is liable; for in such a case the defendant would be guilty either of wilful negligence or of negligence which might be said to be the proximate cause of the injury; while the negligence of the plaintiff would be but the remote cause, or a mere condition of the injury. Beach, Cont. Neg., sec. 55. However differently the rule may be stated, the above is in accord with the established doctrine of our own court, and the decided weight of authority. Beach, Cont. Neg., secs. 8, 27, 35, 54, 55; Butterfield v. Forrester, 11 East, 60; Shearman & Redfield, Neg., sec. 99; Thompson, Neg., p. 1155, sec. 7, p. 1157, sec. 8; Nelson v. Railroad Co., 68 Mo. 593; Morris v. Railroad Co., 45 Iowa, 29; Keefe v. Railway Co., 60 N. W. 503, and cases cited. See also as to contributory negligence where live stock is killed, Forbes v. Railroad Co., 76 N. C. 454; Indianapolis, &c., Railway Co. v. Caudle, 60 Ind. 112; Cincinnati, &c., R. Co. v. Street, 50 Ind. 225; Toledo, &c., R. Co. v. Head, 62 Ill. 233; Jeffersonville, &c., R. Co. v. Adams, 43 Ind. 402; 3 Wood, Railroads, sec. 418, note; Williams v. Railroad Co., 11 Am. & Eng. Ry. Cases, 421.
[Note. — As to the duty of a railroad company to maintain a lookout on a train, see note to Smith v. Norfolk & S. R. Co., (N. C.) 25 L. R. A. 287. — Rep.]
For the error indicated, reverse the judgment, and. remand tbe cause. | [
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Battle, J.
Two questions are presented for our ?onsideration.
First. Can a suit instituted by a plaintiff in an attachment proceeding against a person summoned as a g-arnishee in such proceeding, whose answer was unsatisfactory to the plaintiff, be legally prosecuted to judgment before the plaintiff recovers judgment in the action in which the order of attachment was sued out, and before the attachment in the same is sustained?
lshmeilt’
Second. Can the action instituted against the garnishee be consolidated with the action in which he was summoned?
First. An order of attachment, the execution of it, and the disposition of the property attached constitute a proceeding ancillary to the action in which it is pending. It depends upon such action for its existence and support, and is a provisional execution of the judgment in the same, provided before its recovery. As a part of this proceeding, persons indebted to the defendant may be summoned as garnishees for the purpose of aiding in the accomplishment of the same design — the satisfaction of such judgment. When summoned, each of them is required to disclose truly the amount owing by him to the defendant, whether due or not, and the property in his possession or control. If he fails to make a disclosure satisfactory to the plaintiff, the latter can proceed in an action against him by filing a complaint and suing out a summons. (Sand. & H. Dig., sec. 360). As to the time when the action shall proceed to judgment, the statute is silent, but it does provide that when it is instituted “such proceedings may be had as in other actions, and judgment (shall) be rendered in favor of the plaintiff to subject the property of the defendant in the hands of the garnishee, or for what shall appear to be owing to the defendant by the garnishee,” and that “the judgment shall be enforced by execution or other proper means.” When- the object of the garnishment is considered, in connection with these provisions of the statute, it is apparent that the action against the garnishee should not be prosecuted to final judgment until the plaintiff recovers judgment against the defendant in the main action; for until then he does not become subrogated to the defendant’s right of recovery, and éntitled to a judgment against the garnishee and satisfaction thereof, as provided by the statute. Giles v. Hicks, 45 Ark. 271; Penyan v. Berry, 52 Ark. 130.
As to consolidation with original suit.
As the action against the garnishee cannot be legally prosecuted to final judgment before plaintiff recovers a judgment against defendant in the main action, it necessarily follows that the issue joined between him and the garnishee should not be tried before that time; for a trial before then would avail nothing.
The garnishment being a part of the attachment proceeding, the plaintiff is not entitled to recover against the garnishee until it is sustained; for the garnishment is as much dependent on the grounds upon which the order of attachment was sued out as any other part of the attachment proceeding, and is based on the right to the attachment and its maintenance; and the plaintiff’s right to recover against the garnishee depends on the validity of the garnishment. Upon the discharge of the attachment the defendant is entitled to the return of all his lands, goods, chattels, and choses in action which are held subject to any judgment that might be recovered against him.
Second. The main action and the action against the garnishee should not be consolidated. The former must be prosecuted to a judgment against the defendant before the issues in the latter can be legally tried. A consolidation cannot avoid this and enable the court to try them as one action. The parties and issues are different, and in whatever manner they may be tried the issues in the latter must be separately and last determined.
The judgment of the circuit court is reversed, and the cause is remanded for proceedings consistent with this opinion. | [
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Battle, J.
During the year 1893, Milton Harris, resided at Nashville, in this state, and dealt in country produce. He purchased apples, hides, chickens, and eggs, and shipped them over the road of the Arkansas. & Louisiana Railway Company. In this time, the railway company did not keep posted at its depot freight office at Nashville, in a conspicuous place, plainly and legibly printed schedules of its rates of freight and charges ; and the consequence was, whenever Harris, wished to find out what the charges for shipping any of his property on the railroad was, he asked the agent of the company for the information, and received it. Finally growing weary of this manner of doing business, he, on the 12th of December, 1893, gave to the agent of the company the following notice:
“State of Arkansas, County of Howard, Town of Nashville. To W. B. McDonald, agent of the Arkansas & Louisiana Railway Company, Nashville, Ark.: You are hereby notified that the Arkansas & Louisiana Railway Company has failed to comply with section seven (7) of the statute approved March 24, 1887, requiring a schedule of the rate of freight charges to be posted up in the depot freight office. I am the party aggrieved by this violation of the law, and I demand that said company make proper reparation to me for each and every day the law has been violated during the year last past. Given under my hand this 12th day of December, 1893. Milton Harris, by W. S. Curran, his attorney.’’
And, failing to receive the desired reparation within fifteen days, and being out of business, he brought this action against the railway company to recover the statutory penalty of $50 to $1000 for each and every day in the year 1893 the company had failed to keep the schedule of rates of freight and charges posted at the Nashville depot freight office, and recovered judgment for $12,000, and the defendant appealed.
While the evidence adduced in the trial of the action was sufficient to show that no schedule was posted at any time during the year 1893 at the depot freight office at Nashville, and that the notice in writing which we have set out in this opinion was given, and the other facts which we have stated, there was no evidence that Harris received any actual injury. He testified, and could not tell when he first examined to see whether or not the schedule had been posted, nor how often he had looked. He testified that he usually went to the agent of the company, and inquired as to rates of freight, which were always given to him upon request. Upon such evidence, was he entitled to recover a penalty?
This action is based on sections seven and twelve of the act entitled, “An act to prevent unjust discrimination and exhorbitant charges by railroads,” etc., approved March 24, 1887, which are sections 6307 and 6312 of Sand. & H. Digest, and are as follows :
“Sec. 7. That all railroad corporations in this state shall [be] and are hereby required to keep posted up at every depot freight office under the control of, or used by, any such railroad corporation, in a conspicuous place therein, plainly and legibly printed schedules, which shall state: First, the different kinds and classes of property to be carried; second, the different places between which property shall be carried; third, the rates of freight and charges for carriages between such places and for all services connected with transportation of such property, from its receipt until it is delivered or forwarded, and each day of failure to post up such printed schedule shall constitute a separate offense. Such schedule shall be posted at least five days before the same shall go into effect, and the same shall remain in full force until another schedule shall, as aforesaid, be posted. And every person and corporation engaged as aforesaid shall receive, load, unload, transport, store, and deliver to the consignee thereof any and all property offered for shipment at and for charges not greater than those specified in such schedule as may at the time be in force, and shall, on demand, issue to shippers duplicate freight receipts, which shall state the class of freight shipped, the weight, and charges, etc.
Who may recover penalty for failure to post freight schedule.
“Sec. 12. That any railroad corporation that shall violate the * * * * seventh * * sections of this act ***** shall forfeit and pay for every such offense any sum not less than fifty dollars nor exceeding one thousand dollars and costs of suit, to be recovered by a civil action by the party aggrieved, in any court having jurisdiction thereof, * * * but all such actions shall be brought within one year after the cause of action accrues, or within one year after the party complaining comes to the knowledge of his or her rights, and no such action shall be maintained unless it is alleged and shown that, before bringing his action, the party complaining brought the matter to the attention of the railroad company by a notice or statement of facts in writing, accompanied by the papers showing such violation, if any he has, and a demand for reparation, delivered to some agent of the railroad company, and that said railroad company, for fifteen days after the reception of said notice, neglected or refused to refund any overcharge or make other proper reparation.”
The schedule mentioned is required to be posted for the benefit of those desiring and seeking to ship their property over railroads. So much of section 7 of the act as prohibits the charging of more than the rates fixed by the schedule, and the information afforded by the posting, clearly indicates that this is its sole object. No other person can be benefited thereby, or injured by the failure to post.
But who is entitled to the penalty allowed by section 12 of the act for a failure to post the schedule? The statute says the party thereby aggrieved; and that he is not, unless the railroad company neglects or refuses to make “proper reparation” within fifteen days after demand and notice has been made and given in the manner prescribed by law. The proper interpretation of the word “reparation,” as used in this connection in section 12, will enable us to decide this question ; for no one to whom reparation is not due can be entitled to the penalty. What is meant by it?
No reparation can be made for a failure to post a schedule in the past by a present posting. The posting is for the purpose of affording information to those desiring and seeking to ship property after the posting. It can be of no service to any one as to shipments made. As to him no reparation can be made, except by compensation for the injuries he has suffered from the failure to post. Compensation, then, for injuries or wrongs suffered by reason of the failures to comply with the act to which penalties are annexed is what is meant by “reparation.” Section 7 .furnishes an illustration, and that is overcharges paid by the shipper through ignorance •of the regular rates of freight caused by the failure to post the schedule. The refunding of the amount paid in excess of' the regular rates and interest would be a proper reparation in that case. The shipper who has looked for the posted schedule, and failed to find it, may be injured by time lost and trouble incurred in the search, and may be entitled to compensation therefor, and to nominal damages if no actual injury has been suffered. Other examples, which are unnecessary to mention, might be given, but those given are sufficient,
sufficiency injury.
The obvious intention of the act is to give to the railroad company an opportunity to make reparation for all injuries caused by its failure to comply with it. For that purpose, the party aggrieved is required to give notice to the company of the violation of the injury received therefrom, and to demand indemnity therefor; and the company is given fifteen days in which “to refund any overcharge or make other proper reparation.” The notice should specify wherein the company had violated the act, and the damages to the party aggrieved occasioned thereby; otherwise, it would fail to accomplish the object for which it is required, for the railroad company cannot make reparation until it is apprised of the injury and the extent of the damages. Hence, notice containing information sufficient to accomplish this purpose should be given. The intention of the act in this respect is to be just, and to afford to railroad companies ample opportunities of making adequate compensation for specified injuries before penalties can be imposed on them.
It follows, then, that the person desiring and seeking in good faith to ship, or who has shipped, his property over the railroad, and who has been injuriously affected by the neglect to post the schedule, and has made demand and given notice according to the act, and failed to receive adequate compensation for the injuries he has suffered from such neglect, is the party aggrieved and entitled to the penalty for the failure, No other person, that is to say, no one who has not been injuriously affected, can perform the conditions essential to a recovery of the penalty, and hence is not entitled to it.
The evidence fails to show that appellee is entitled to any relief, by way of a penalty, on account of the failure of appellant to post a schedule of rates at Nashville. He did not state in the notice given how he was aggrieved by the failure to post, the extent of his grievances, and the damages occasioned thereby. His notice is fatally defective. He has not complied with the act, and is not entitled to a penalty.
The judgment of the circuit court is, therefore, reversed; and a final judgment is rendered by this court in favor of appellant. | [
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Wood, J.
Five suits were begun before a justice of the peace, each for an amount within the justice’s jurisdiction. Writs of attachment were issued in each case, and all the writs were levied upon property of the defendant in the attachment. Appellee filed his interplea in the cause in which appellants were plaintiffs, but he gave no bond; and the attached property was sold by order of the court, and the proceeds of the sale Were held by the officer. There was a written agreement upon the part of counsel that the interplea filed in the one cause should be considered as filed in each of the causes, respectively; and the trial and judgment in one case on the interplea was to apply to and be the trial and judgment in each of the other cases. The trial before the magistrate resulted in a judgment against the interpleader. He appealed, and in the circuit court the jury returned the following verdict: “We, the jury, find for the inter-pleader, and fix the value of the goods at the sum of nine hundred and fifty dollars,” — upon which the court rendered this judgment, vifc: “That the interpleader, Geo. Grieb,^do have and recover of and from the plaintiffs, D. W. Fly and Sam Hobson, the property attached by the sheriff in this action, or the value thereof, nine hundred •and fifty dollars, and all his costs in this cause expended, for which execution may issue.” Appellants insist here on two propositions: First, that the court had no jurisdiction to render the judgment; second, if it had jurisdiction, the judgment is erroneous.
Jurisdiction of justice of the peace.
Form of judgment in attachment.
1. The jurisdiction of t.he justice is determined by the amount in controversy between the plaintiff and defendant in the attachment, and not by the value of the property attached. The attachment is only a remedy or process by which the creditor is enabled to subject the property of the defendant, under certain conditions, to the satisfaction of his judgment. Only to that extent has he any claim or right to or in the property. Beyond this he has no controversy, either with the defendant or the interpleader. Hoppe v. Byers, 39 Iowa, 573; Cushing v. Sambola, 30 La. An. 426.
2. Since the attached property had been sold, and the proceeds were in the hands of the sheriff, it was error for the court to render a judgment against the-plaintiffs for the property or its value, nine hundred and fifty dollars. Norman v. Fife, 61 Ark. 33. The inter-pleader was entitled, under the verdict, to his costs and the proceeds in the hands of the sheriff. If the amount did not equal the true value of the property, or if theinterpleader were damaged otherwise by the unlawful taking or detention of same, he would have to seek redress in another proceeding. The issue on the inter-plea is for the property itself; or, if it has been sold, for its proceeds. Sec. 356, Sand. & H. Dig.
Reversed and remanded, with directions to the lower court to enter a judgment in favor of the interpleader for jiis costs, and an order directing the sheriff to pay over the proceeds of the property in his hands to said, interpleader. | [
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Per Curiam.
On a trial in the circuit court, it was admitted that the appellee, as sheriff of Hempstead county, had, under order of the circuit court of said county, summoned 45 special jurors to serve in felony cases. The court held that he was entitled to charge the'county a fee of 33| cents for each of said jurors, and gave judgment accordingly.
The only question in this case is whether a sheriff is entitled to a fee for summoning special jurors to serve in felony cases, in addition to his mileage. It has been frequently held that sec. 3350, Sand. & H. Dig., which provides that, “in all cases where any officer or other person is required to perform any duty for which no fees are allowed by law, he shall be entitled to such pay as would be allowed for similar services,” does not apply to allowances against counties. Logan County v. Trimm, 57 Ark. 499; Cole v. White County, 32 Ark. 45. To authorize a county court to allow a claim against a county in favor of an officer, “there must be specific statutory authority to the officer to make a charge for the service rendered.” Sec. 1237, Sand. & H. Dig.; Logan County v. Trimm, 57 Ark. 491. No such authority is given for the allowance of a fee for summoning special jurors to serve in felony cases. The duties of a sheriff are important and arduous. In many of the counties the pay is small. We see no reason why they should not be allowed pay for such services, except that the statute has made no provision for it.
Reversed and remanded.
Bunn, C. J., dissents. | [
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Bonn, C. J.
This is a suit in ejectment, tried and determined in the Franklin circuit court, on the 27th day of September, 1893, in favor of the defendant, and the plaintiff, the said mortgage company, appealed to this court. It appears that the appellee borrowed, and gave his note to appellant for, the sum of $400, on the 2d day of January, 1889, due and payable in four equal annual installments of $40 each, due respectively on the 1st days of November, 1889, 1890, 1891, 1892, and one installment of $240 due 1st November, 1893, and each note bearing interest at the rate of ten per centum per annum from maturity until paid; and to secure the payment of said five promissory notes, and an equal number of notes calling for the interest on same before maturity, appellee and his wife, Victoria Winchell, executed and delivered at the same time their deed of trust in the-usual form; and in this deed of trust, among other things, it was stipulated that on default in the payment of either of said notes, or of the interest notes also secured by the same, the whole debt should become due, and the deed of trust foreclosable, and the lands therein described be sold by the trustee therein named, on giving the notice specified and on the terms stipulated. A. R. Shattuck was named as trustee, and the deed of trust contained a clause authorizing another to be appointed by the beneficiary in case the said Shattuck became unable or refused to serve, and under this power of substitution J. B. Moore was appointed trustee, who foreclosed the deed of trust on breach of the conditions, as directed therein, and at the sale by him appellant became the purchaser, and said Moore, as such trustee, in due course and form made his deed to it, conveying to it in fee, the lands described in said deed of trust, and the same which are in controversy in this litigation. On this trustee’s deed, this suit in ejectment was instituted by appellant against appellee for the recovery of said land, alleged to be then in possession of appellee, who, it is alleged, held the same without right, and refused to surrender his possession.
Appellee answered, setting up the plea of usury in the contracting of the debt, and that therefore said deed of trust was void; that the debt was an Arkansas debt, and that the contracting of it was a transacting business in this state, and that appellant is a foreign corporation, and had not complied with the laws of this state, and that for that reason both the debt and the deed of trust are void as against him; and further that the land conveyed in said deed of trust was, and is still, his homestead, and that his wife had not united with him in the conveyance of the same in said deed of trust as required, and for that reason said deed of trust was invalid under the provisions of the act entitled, “An act to render more effectual the constitutional exemption of homestead,” approved March 18th, 1887. The loan in question, it appears, was effected for appellee by Shattuck & Hoffman, commission merchants and loan brokers, resident and doing business in the city of New Orleans, in the state of Louisiana, from the appellant company, all the negotiations between them having been done in that city, and all the notes for the money so borrowed being made payable there. It was, therefore, in fact a Louis iana contract; but the parties to the deed of trust had stipulated therein that the same, and the notes therein referred to, should be construed and governed by the laws of Arkansas. The evidence shows that the full amount of four hundred dollars was paid by appellants to said brokers for appellee, and that the brokers took for their pay a portion of the interest notes belonging to appellant, — that is, they were paid by appellant company out of its own funds; and that these brokers paid the full amount of said $400 to J. B. Moore, the agent of appellee, and that he, in turn, paid the same over to appellee, less fees and charges for his services, and certain expenditures he had made in the matter for appellee, which do not appear to be any part of the interest on said loan. Besides, it does not appear either that Shat-tuck & Hoffman were the agents of appellant in this transaction, or that J. B. Moore was the agent of appellant or of Shattuck & Hoffman; but it does appear that he was the agent of appellee. The evidence, therefore, does not sustain the charge of usury, there being in fact none upon which the charge could be based.
When foreign corporation not engaged in business in state.
When invalid conveyance of homestead cured.
The agreement in the deed of trust that the same and the notes therein referred to should be construed and governed by the laws of Arkansas, if it had any effect at all to change a Louisiana to an Arkansas contract, evidently was not intended to be an admission or agreement that the making of the contract evidenced by said notes and deed of trust was a doing or transacting business in this state, contemplated and referred to in the statutes imposing conditions upon foreign corporations, in .order that their contracts made in the course of the same may be binding upon the citizens of this state who are parties thereto.
The third contention of appellee is to the effect that the land conveyed in the deed of trust was the homestead of appellee, and that his wife had not united with him in executing said deed of trust as required by-statute to render the conveyance by him of his homestead valid. Upon an inspection of the deed of trust, it appears that the wife united with the husband in the conveyance or granting clause, that she had relinquished her dower in a subsequent clause, and had acknowledged that she had signed the relinquishment of her dower; and in fact that said deed of trust would have been a valid conveyance of the husband’s homestead before the passage of the act approved March 18, 1887, aforesaid; that the conveyance was made January 2, 1889, and acknowledged by both husband and wife on the 8th of January, 1889. If this execution of the conveyance of the homestead was defective under the provisions of the act of 1887, as alleged and contended by appellee, still such defect was cured by the act entitled “An act to cure defective conveyances and acknowledgments,” approved April 13, 1893.
The evidence does not sustain either of appellee’s contentions, and the instructions given by the court below are based upon a theory not established by the evidence, and are therefore erroneous.
The judgment is therefore reversed, and cause remanded with directions to enter judgment for appellant company, which was the plaintiff in the court below. | [
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MoHaney, J.
This action was instituted in the Clark Circuit Court by the Knight-Overland Company, hereinafter called the Knight Company, against appellee, J. J. Hardin, ■appellamit, Commercial Credit 'Company, hereinafter called the credit company, O. L. McElhanon, J. 0. Jones and Mack-Overland Company, hereinafter called the Mack Company, to recover possession off one Star coupster automobile. .The credit company filed an answer and cross-complaint, making Hardin and the others defendants in the cross-complaint, and, by agreement, the case was transferred to the chancery court and tried there. It is undisputed that the title to the Star coupster was originally in appellee, Hardin, and was acquired by him in the following manner:
He traded V. L. Massey a piece of land for two automobiles, one of which was !a Willys-Knight. He left the Willys-Knight in the show window of the Mack Company, a corporation in the automobile business at Arkadelp'hia, in which he had formerly been a stockholder, with instructions to the Mack Company to sell the car for $1,135 in cash. The Mack Company traded the Willys-Knight to a man from Hope for the Star coupster in question, and a difference represented by title-retaining notes to the Willys-Knight, which were made payable to the Mack Company, on the forms of the credit company, and these notes were sold to the credit company and the proceeds paid to Hardin in the form of a check from the Mack Company. The Star .coupster was then put in the show window <of the Mack 'Company, by instructions from Hardin, to be sold, as he says, for $735 cash, and, if sold on a credit, the security to be approved by him; but, according to MicElhanon, who was. the manager of the Mack Company, it was'left there to be 'Sold as a second-hand car at the best price obtainable, and to be handled in the same manner as he had formerly handled" the deal for the Willys-Knight.' The Star coupster remained in the Mack 'Company’s show room for some three or four months, and was sold by J. M. Bobo, who was in charge of the sales department for the Mack Company, to J. 0. Jones, on June 29,1926, for $850 plus service charge, making a total cost to the buyer of $946.90, of which, according to the conditional .sales agreement signed by Jones and the Mack Company, by McElhanon, the buyer had paid $340 cash and agreed to pay the balance of $609.90, in twelve monthly installments cf $50.57 each, the first one month after date, and monthly thereafter. Jones was an employee of the Mack Company at the time. Jones executed his note for the deferred payments, and this note and the conditional sales contract were sold and assigned to the credit company for the net sum of $510 cash, Which was received by the Mack Company and deposited to its credit in the Bank of Arkadelphia. Hardin did not get this $510. On or about September 9, thereafter, at the suggestion of Hardin, O. L. McElhanon, acting for the Mack Company and Hardin, called up the Knight Company at Little Bock about trading the Star coupster for a new Overland car, and, as a result of that conversation, went to Little Bock, where he made a trade with the Knight Company for a new Overland, by turning in the Star coupster and paying $489 cash, check for which had been given him by Hardin, signed in blank, and the new Overland ear was taken back to Arkadelphia, and was left by Hardin in the Mack Company show window for sale. The July, August and September payments on the Jones note, held by the credit company, were made by the Mack Company, Jones never having taken the 'Star coupster out of the possession of the Mack Company, or made any payments thereon, none having been made at the time of the alleged purchase, and none of the installment payments having been made by him. The October and November payments became delinquent, and a representative of the credit company was sent to Arkadelphia to check the matter up, collect payments or take possession of the car. He interviewed Jones, who denied that he had ever purchased the car, signed the note or the contract, and he there learned that the Star couipster bad been traded to the Knight-Overland Company in Little Bock, where he came and demanded the car or the money. The Knight 'Company, after consulting with its attorney, turned the Star coupster over to the credit company’s agent, and the credit company has had the same in its possession since that time. A short time thereafter the Knight Company instituted this action as above stated, and, on a trial of the case, the court rendered a decree in favor of the Knight Company against the credit company for $550 or the delivery of the oar in as good condition as it was when surrendered; in favor of the credit company against J. 0. Jones and the Mack Company for the balance due on its note, $455.13, and dismissed the complaint of the plaintiff and the cross-complaint of the credit company as to J. J. Hardin, J. B. Hardman and O. L.' McElhanon for want of equity, it appearing that the' Mack Company had become insolvent and J. B. Hardman had ’been appointed receiver therefor.
From the judgment against it the credit company has prosecuted an appeal to this court.
We think the evidence shows there were three innocent parties to this controversy: J. J. Hardin, the Knight-Overland Company and the Commercial Credit Company. We are furthermore of the opinion that the evidence conclusively shows that the pretended sale of the Star coupster to J. 0. Jones by the Mack Overland Company, acting through Bobo, was fraudulent, 'and made for the purpose of defrauding Hardin and the credit company. The credit company is an innocent purchaser of the paper executed by Jones to the Miack Company, -without any knowledge of the fraudulent transaction, and Mr. Hardin, through his agent, McElhanon, or the Mack Company, sold this car to the Knight Company without any knowledge of the former sale, although it is quite probable that his agent, McElhanon, knew all about this transaction, as it is undisputed that-he signed the checks which paid the installments that were paid to the credit company on the Jones note, and, since the Mack Company was in financial straits, if not entirely insolvent at the time of the pretended sale to Jones, it is hardly possible for the company to have received $510 which was deposited to its credit as the proceeds of the sale of the Jones.note to the credit company, without McElhanon knowing about it.
This case must therefore be decided, as was stated in the case of Coffman v. Citizens’ Loan & Investment Co., 172 Ark. 889, 290 S. W. 961, “upon the principle that, where one of two equally innocent persons must suffer, he should bear the burden whose conduct has induced the loss.” In this case Mr. Hardin, although equally innocent of any wrong or fraudulent conduct with the credit company, must hear the burden, because it was his conduct in putting the car in the place of business of McElhanon and the Mack 'Company for sale, and thereby putting' it in their power to do the very thing’s that have, been done in this 'Case. And we are of the opinion that this case is ruled by that case, in which the court quoted with approval from the Supreme Court of Appeals of Virginia, in Boice v. Finance & Guaranty Corporation, 127 Va. 563, 102 S. E. 591, 10 A. L. R. 654, in which it was held, substantially, that chattels bought by a dealer for the purpose of indiscriminate sale to the public, offered for sale at the place of business of the dealer, and of which the dealer has charge, to all intents and purposes as that of owner, cannot be mortgaged by him, though it be an automobile and easily identified. We do not quote from this case again, as it would serve no useful purpose to do so, but we do reaffirm the principles announced in that case, which were expressly approved in the Coffman case,- and hold, as a matter of law, that the fact that Hardin placed the Star coupster in the possession of the Mack Company for ©ale, even though with a limitation upon the price and terms of sale, puts him in no better position as regards the disposition thereof than the holder of a void chattel mortgage. Although the sale to Jones was a pretended, fraudulent and fictitious sale, the Commercial Credit Company, being an innocent purchaser of such notes, must be held to be the purchaser of such car subject to Hardin’s right of redemption therein, and, it having acquired its interest in said car prior to the sale thereof to the Knight Overland Company, its rights therein are prior and paramount to that of Knight Overland Company.
We are therefore of the opinion that the chancellor erred in rendering a decree in favor of the Knight Overland Company against the credit company for $550 or the return of the car, or on any other account. We are also of the opinion that the appellee, Knight Overland Company, is entitled to a judgment against J. J. Hardin, O. L. McElhanon and thé Mack Overland Com pany for the market value of the Star car taken in by it in its sale to Hardin of the new Overland, which the court found to be $550, and that J. J. Hardin is entitled to a judgment ag’ainst O. L. McElhanon, the Miack Overland Company, J. M. Bobo and J. 0. Jones for the full amount of loss sustained by him, with the right on his part'to redeem the Star car from the Commercial Credit Company by paying- the amount of its debt and interest, if he so desires.
The case will therefore ‘be reversed, and the cause remanded with directions to enter a decree in accordance with this opinion. | [
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Mehapfy, J.-
The appellees, plaintiffs below, filed suit' in the Hot Spring Circuit Court against the appellant, défendant below, alleging that they.are residents of Hot Spring County, and that Orr' is the owner of' a tract of land in a high state of cultivation, which he rents to tenants and receives part of the crops raised thereon as rent. That the land is low, and lies adjacent to the Ouachita Eiver. That the defendant company is a corporation, and is engaged in the business of generating electricity, which it supplies to the public for hire, and, for the purposes of generating said electricity, it has constructed a dam across the Ouachita Eiver near Cove Creek, in Hot Spring County, and has created a very large lake of water, and, in connection with said dam, it has installed a system of floodgates which it can raise and lower, and that it is doing business under the laws of the State of Arkansas. That, in the year 1925, plaintiff Orr rented said tract of land to Walter Hughes, and was to receive one-half of the corn which was raised thereon as his rent for said land. That Hughes planted and cultivated a crop of corn, and it grew and matured thereon. That, on the 16th day of October, 1925, the agents, servants and employees of the defendant company in charge of said dam carelessly and negligently, and without regard to the rights of the plaintiffs, raised the floodgates on said dam and permitted the water to flow out of the lake as aforesaid, causing it to overflow the plaintiff’s land and destroying the plaintiff’s said corn, destroying four hundred bushels, which was of the market value of $1 per bushel. Plaintiffs allege that, on account of the carelessness and negligence of the agents, servants and employees of the defendant company in raising the floodgates on their .dam as aforesaid and overflowing the plaintiff’s crop of corn as aforesaid, the plaintiffs have been damaged in the sum of $400.
Defendants filed a motion .to make more definite .and certain the '-complaint, and thereupon the plaintiffs, in response to said- motion, stated that the land mentioned in plaintiff’s complaint is a part of-the southeast'quarter of the southeast quarter of section 32, township 5 south, range 18 west, in Hot Spring County, Arkansas.
The defendants answered, denying the allegations about the ownership of the land and cultivation of it, and admitted that it was a corporation generating electricity which it supplies to the public for hire; admitted the construction of the dam and the creation of the lake, and that it had installed a system of floodgates, and that it was doing business in Arkansas. It denied that its agents, servants and employees carelessly and negligently, and without -regard to the rights of the aforesaid plaintiffs, raised the floodgates on said dam and permitted water to flow out of said lake as aforesaid, causing it to overflow plaintiff’s crops in the amount set forth in the complaint. Defendant denies that it is guilty -of: any negligence and denied that plaintiffs were damaged in any amount.
Further answering, the defendant stated that, -under the express permit and license of the State of Arkansas and the United -States of America, it built a dam for commercial and public service purposes, and that the dam was constructed by competent engineers in a satisfactory manner and for the best protection of the property rights of any persons who might be affected by said construction; that such dam is so constructed as hot to interfere in any way with the natural flow of said running stream, nor the volume thereof, nor the natural channel thereof; said dam being' built on this defendant’s property and maintained and operated with care and caution at all times. That the land described by plaintiffs is and has long been subject to overflow by the Ouachita River, even before the construction of said dam herein mentioned; that the construction of said dam or its opération in no way affected the susceptibility of plaintiffs’ lands to overflow; that, at the time of the damage herein complained of, there was a general overflow caused by excessive rains and freshets that rendered the destruction of all crops situated as was plaintiff’s inevitable, including plaintiffs’, independent of the defendant’s dam; that crops both above and below defendant’s dam were destroyed, and that the conditions were the same or similar as to such other farms and crops as those that surrounded plaintiffs ’; that plaintiffs knew, or, by the exercise of reasonable diligence, could have known of this condition and the susceptibility of their lands to overflow and their crops ’ consequent destruction, and guarded against same. That, if plaintiffs suffered any damage at all, the damage was caused by surface water and acts of Cod.
The defendant filed motion for change of venue, which was by the court overruled, and exceptions saved. There was a verdict and judgment for the plaintiffs in the sum of $300. Defendants filed motion for a new trial, which was overruled and exceptions saved, and defendants have appealed to this court.
The appellant’s first contention is that the court erred in admission of testimony of witnesses Fisher, Stanley and Keith, detailing statements of party in charge of the gates of the dam, alleged to have been made on the day after the flood and damage. And appellant states that the entire case is based on this improper and highly prejudicial testimony.
We think this testimony was incompetent. The court should not have permitted these witnesses to testify to statements and declarations made by Murray. Neither the fact of agency nor the extent of an agent’s authority can be proved by his declarations out of court.
“The authority of an agent, and its nature and extent where these questions are directly involved, can only be established by tracing it to its source in some word or act of the alleged principal. The agent certainly cannot' confer authority upon himself or make himself agent merely by saying that he is one. Evidence of his own statements, declarations or admissions, made out of court therefore (as distinguished from his testimony as a witness), is not admissible against his principal for the purpose of establishing, enlarging or renewing his authority; nor can his authority be established by showing that he acted as agent or that he claimed to have the powers which he assumed to éxercise. His written statements ’and admissions are as objectionable as his oral ones, and his letters, telegrams, advertisements and other writings cannot be used as evidence of his agency. Tho fact that the agent has since, died does not change the rule. ’ ’ Mechem on Agency, § 285.
‘ ‘ Evidence is called hearsay when its probative force depends, in whole or in part, on the competency and credibility of some person other than the witness by whom it is sought to produce it. The courts will not receive the testimony of a witness as to what some other person told him, as evidence of the existence of the fact asserted. This rule of exclusion is the same whether the evidence offered consists of a statement purported to be based on the declarant’s own knowledge, but objectionable as unsworn, or of a sworn statement as to matters known to the declarant only through hearsay. The reason for the rule is that the unsworn statement of a person not called as a witness or subjected to the test of cross-examination is not recognized as having a sufficient probative effect to raise an inference that the fact is as stated.” 22 C. J. 199.
The unsworn declarations of an agent are not admissible on behalf of the principal, even though the agent is dead. They are not admissible against the principal as a general rule.
The admission of the testimony as to the declaration of Murray that he was the agent, or in charge of the property, was improper, but that part of his declarations would not justify a reversal of the case, because “where there is direct evidence as to the same matters as to which a party’s declaration has been admitted in evidence against the objection that it was self-serving, the admission of the declaration, even if technically improper, cannot be regarded as error.” 22 C. J. 230.
“A rule which has been stated and applied many times by reviewing courts, is that the admission of improper or objectionable evidence is harmless error where the fact involved is fully and clearly established by other evidence which is competent. This rule applies not only where the evidence improperly admitted consists of oral testimony, but also where it consists of photographs, maps, depositions, and, although the rule as stated is supported by numerous cases, it has even 'greater force where the evidence properly received is admitted without objection or is of a more conclusive character than that improperly admitted, where not only the fact in question but the whole of the prevailing party’s case is amply sustained by competent evidence, or' where the complaining party himself adduces evidence to the same effect.” 4 C. J. 975.
As to the question of agency and the testimony of these witnesses as to Murray’s declarations, the error of admitting this incompetent testimony was cured by the testimony introduced by the defendant itself. It proved by Murray that he was the agent, and it also proved the .same fact by others. If this were true as to the other testimony of these three witnesses as to Murray’s •declarations, the improper admission would not be a ground for reversal. But plaintiffs did not prove the same facts with reference to raising the gates and the manner in which they were raised by other and competent eyidence. In other words, these three witnesses testified as to the declarations of Murray with reference to raising the gates and what he said about the height of the water, and that he said he was in charge of the property, etc. Also his statement about how high the water went below the dam, and other declarations, some of which were denied by Murray, and Murray’s testimony contradicted the statements that these witnesses said he made.
An examination of the testimony of these witnesses and Murray’s testimony will show that the testimony of these witnesses as to his declarations, except as to his ■agency, were different from his testimony, and therefore they would not come within the rule that, when incompetent testimony has been admitted and the same • facts proved by competent testimony, the error is cured. The testimony of these witnesses was hearsay, and improperly admitted. The testimony of these three witnesses was not proper as part of the res gestae.
If plaintiffs had wished to contradict Murray’s testimony about any of these matters they would first have to ask him about the statement and then put on their witnesses to contradict him.
“It appears that the admissibility of one class of statements depends upon their being spontaneous and impulsive, the material inquiry being whether the statements offered as evidence were made at a time and under such circumstances as to induce the belief that they were not the result of reflection or premeditation. A distinct class, however, exists in the case of statements which themselves are facts constituting a part of the transaction under the investigation. * * * Such statements are of the res gestae, are of the nature of verbal acts, and are admissible in evidence with the remainder of the transaction which they illustrate.” 10 R. C. L. 976.
The testimony of these witnesses simply showed that Murray narrated the facts the following day, and they were wholly inadmissible as a part of the transaction.
It is next contended by the appellant that the instructions of the court, given at the instance of the plaintiff, and those given in behalf of the defendant, were confusing and contradictory, submitting conflicting views of the law, could not be' harmonized, and constituted prejudicial error.
We do not agree with appellant that the instructions are confusing and contradictory. And, since the plaintiff introduced testimony of the declarations of the agent and this testimony was incompetent, the evidence in another trial will necessarily be from other witnesses, and it may be that this testimony, if introduced, might necessitate the giving of different instructions. At any rate, we do not think it can be said that the instructions as given by the court were confusing and contradictory.
It is next contended that the court erred in giving plaintiff’s instruction No. 1, which makes the defendant an insurer of plaintiff’s crops, and gives an erroneous view of the law governing riparian rights. Instruction No. 1 tells the jury that plaintiff may recover if it negligently raised the gates and caused the water to flow, etc. No matter what the rights of the defendant might be with reference to building the dam and gates and operating the same, if it did' these things negligently and this negligence caused the injury to the plaintiff, of course it would be liable. It is not liable because it built the dam or gates or operated the same, but it is only liable if its negligence caused damage. And this is what instruction No. 1, requested by plaintiff, tells the jury.
Appellant next contends that there was no testimony to sustain the verdict.
We have already held that the testimony of witnesses as to the declarations of the agent was incompetent, and that proof of the facts necessary to make a case would have to be by Avitnesses other than those simply testifying to the declarations of the agent. And, since the case Avill have to be retried and the erroneous evidence eliminated or omitted, we do not pass on the question of the sufficiency of the evidence, and deem it unnecessary to set out the evidence here.
For the error in admitting incompetent testimony the case is reversed, and remanded for a new trial. | [
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MoHaney, J.
Appellees brought separate actions before a justice of the peace of Lonoke County against appellant to recover from appellant in the Weaver case $10 and in the Hallum case $25 fees paid appellant by appellees on their convictions on separate charges in the .justice court of J. H. Melton of Lonoke County, in criminal cases filed against them by appellant as prosecuting attorney for the Seventeenth Judicial District.
Appellant, as prosecuting attorney, filed an information against Weaver, charging him with the crime of assault and battery. He was convicted, as he says, on a plea of guilty, but, as appellant says, after a trial, which is supported by the record of the justice of the peace, fined $1 and 'costs, which included a $10 fee for the prosecuting attorney.
Appellant also filed an information against Hallum, charging him with the crime of gaming. He was convicted on a plea of guilty, fined $10 and costs, which included a $25 fee for the prosecuting attorney. Both fines and costs were paid, but appellant deducted $5 from his fee in the latter case, and these separate suits were brought to recover these respective sums of money on the ground that appellant had no lawful right to collect a fee on a plea of guilty. On a trial of the cases in the justice court, judgment was rendered for appellant, and the plaintiffs in those cases appealed to the circuit court, where judgment was rendered for them and against appellant, from which is this appeal.
We will assume, for the purpose of this decision, that both appellees pleaded guilty to the criminal charge against them, although we do not think the facts in the Weaver case justify this assumption. The undisputed fact is that the prosecuting attorney ■brought both criminal actions before the justice of the peace, instituted, and initiated such prosecutions by filing’ an information -against them, charging them, respectively, with the crimes heretofore stated, and that, on the day they were to be tried, he was present in court and prosecuted. Section 4571, C. & M. Digest, provides: “Prosecuting attorneys, where present and prosecuting cases, either in person or by deputy, in justice court, shall be entitled to the same fees for prosecuting in cases of misdemeanors before justice "of the peace as in circuit court.” Under that section of the Digest, the prosecuting attorney would be entitled to his fees where he filed the information, was present at the trial, and ready to prosecute the case, even though the defendant might plead guilty, unless this court has decided to the contrary in other cases.
In Brown v. Welch, 151 Ark. 142, 235 S. W. 997, this court said:
“It is clear, we think, that the prosecution of a case by the officer, even where a plea of guilty is interposed before the trial of the cause, entitles him to the fee. The cases cited on the brief of counsel show that the legal definition of the word ‘prosecute,’ when used in this sense, includes a conviction under a plea of guilty, where the officer performs the preliminary duties in instituting the prosecution and attends the trial for the purpose of conducting the prosecution.”
While this decision was based, to some extent, upon a statute applicable to Clay County and to deputy prosecuting attorneys therein, we are of the opinion that it applies with equal force to that phase of the question now before us, as to whether a prosecuting attorney who files the information, and is present, ready to prosecute, but is prevented from actually trying1 the case by a plea of guilty, comes within the meaning of § 4571 of the Digest heretofore quoted. We therefore hold that, under such circumstances, the prosecuting attorney in these cases was present and prosecuting, regardless of the fact that the defendants in those cases entered pleas of guilty.
But it is contended by counsel for appellees that § 8310 of C. & M. Digest, as construed by this court in the case of Duncan v. West, 167 Ark. 14, 267 S. W. 567, and State v. Staples, 158 Ark. 502, 250 S. W. 517, authorizes the recovery of these judgments against appellant in these cases. Section 8310 reads as follows:
“In any criminal action pending before any justice’s court, where the defendant is charged with an offense mentioned in § 8308 by affidavit or otherwise, and shall plead not guilty, and shall secure the services of an attorney to represent him on the trial, it shall be the duty of-the justice to cause the prosecuting attorney, or deputy, for such county to be notified of the nature of the charge, and the time and place of the trial, and such prosecuting attorney shall attend and prosecute in behalf of the State, and, in case of conviction, shall be allowed the same fee as is now allowed for similar cases in the circuit court. And no prosecuting attorney or his deputy shall- receive any fee unless he personally appears and prosecutes in the case, nor shall any court tax any fee where such officer does not appear and personally prosecute. ’ ’
In the Staples case, supra, Staples and others had been arrested by the sheriff and constable of the township for gaming. The sheriff notified the prosecuting attorney of the cases, and, on the 'following morning, he went to the municipal court for the purpose of filing informations against the defendants and to prosecute the cases against them. The constable, however, had already filed these informations, and, when the cases were called for trial, the prosecuting attorney was present and ready to prosecute, but Staples pleaded guilty, was fined, and the municipal court refused to tax a fee for the prosecuting attorney in the costs, and the question involved on appeal to this court was whether such a fee should have been taxed in the costs. And this court held that the prosecuting attorney was not entitled to the fee. In this case the court said:
“Under this statute, the prosecuting attorney, when present and prosecuting, is only entitled tó a fee in a criminal case pending in said court, upon affidavit or otherwise, where the defendant pleads not guilty, employs an attorney to make his defense, and is convicted.”
While the court used this language, which is very broad in its scope, yet the fact remained that the prosecuting attorney did not initiate the prosecution, filed no information, and did nothing in the prosecution except to be present. And it will bo readily seen that the facts in that case were wholly different from the facts in the case now under consideration.
The case of Duncan v. West, supra, was a habeas corpus proceeding’ to discharge a prisoner from the county convict farm, who had worked out his fine and costs, with the exception of the fees of the prosecuting attorney. In this case the right of the prosecuting attorney to collect a fee on plea of guilty in the justice court was again under consideration, and the court again followed the case of State v. Staples, and said:
“The opinion in State v. Staples, supra, holds that the right of a prosecuting attorney to fees in cases before justices of the peace depends on C. & M. Digest, § 8310, and § 4571 does not allow fees otherwise than under the conditions stated in § 8310, supra. It is true that the Staples case, stipra, differed from the present one in that the prosecuting attorney did not, in that case, file information, but that difference in the facts does not alter the application of § 8310, for, as before stated, we held that § 8310 prescribed the only conditions under which a prosecuting attorney can claim fees in cases pending before justices of the peace.”
It would appear therefore that the facts in Brown v. Welch were substantially the same as in the case iat bar. The Staples case was followed in Brown v. Welch, and, a majority of the court now think, erroneously so, as the language used in the Staples case was not necessary to a decision of that case. For, as already stated, the prosecuting attorney did not file information, and did nothing in the prosecution except to be present. A majority of the court agree that the decision in Brown v. Welch was wrong, and should be overruled, and we are of the opinion that § 8310 of the Digest has no application to the facts in this case, but applies to a case where the prosecution is initiated by somebody other than the prosecuting attorney or his deputy. The judgment in each case will therefore be reversed, and the causes dismissed.
Smith, J., dissents. | [
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Mehaffy, J.
Three suits were begun in the Car-land Circuit Court against the appellant, and were consolidated by order of the court, and tried together. The suits were to recover compensation for loss of baggage which was destroyed in the fire on April 5, 1923, when the .Arlington Hotel was burned.
This is the second appeal in this case. The decision on the former appeal is in 170 Arkansas 440, 280 S. W. 20. When the suits were first brought in the Garland Circuit Court the court sustained a demurrer to the complaints of the plaintiffs, and, when the case was here before, the court said that the demurrers presented a question, first, whether or not the courts of this State have jurisdiction to enforce civil liability which accrued within territory over which exclusive jurisdiction has been ceded by the State to the United 'States Government,-* and second, whether or not ,a statute regulating civil liability, enacted after a cession of jurisdiction, is applicable to causes of action arising within that territory. And on the questions above mentioned, which were passed upon by this court in the former appeal, the decision on the former appeal is the law of the case on second appeal.
The court on the former appeal, after stating the questions raised by the demurrer, said:
“Our conclusion in regard to the first question is that the courts of this State are not deprived, by the State’s cession to the General Government of exclusive jurisdiction, of the right to exercise judicial power in the enforcement of rights of action in civil matters which accrue in the ceded territory. We are not dealing with a local action, such as one which concerns the title to real estate, and what we say now must, of course, be confined to the character of action involved in these appeals. These are transitory actions which may be enforced anywhere that jurisdiction can be acquired over the person of the defendant. * * * The power of the State and General Government over ceded territory has been discussed at length by the decisions of the Supreme Court of the United States in several cases.”
The court then cites the cases that have discussed this question. Again the court said: “The next question presented is one which necessarily arises, but which counsel for appellee disclaims being presented in the present status of the case.”
This second question is whether or not the statute regulating civil liability enacted after the cession of jurisdiction is applicable to causes of action arising •within that territory. The court, it will-be observed, held that this question necessarily arose, and it was stated: “We think it is equally clear that the statute was inoperative. The cession of jurisdiction was necessarily one of political power, and it took • away the authority of the State Government to legislate over the territory ceded to the General Government.” Fant v. Arlington Hotel Co., 170 Ark. 440, 280 S. W. 20.
Appellants also rely on the case of Williams v. Arlington Hotel Co., decided by the United States District Court for the Eastern District of Arkansas. This suit grew out of the same fire, and after appellant’s argument in this case was decided by the Court of Appeals, and the Court of Appeals reached the same conclusion that was reached by this court in the case above referred to. The district court, in the case of Williams v. Arlington Hotel Co., sustained ;a demurrer to the petition, and the Court of Appeals said:
“We think the trial court was in error, under the 'authority of the three so-called Leavenworth Reservation cases” (citing the cases), and the court then said of the cases relied on: “The above quotations show clearly that those cases involved portions of the reservation not being then used for military or other governmental purposes. Therefore we think they are.directly in point here as to the validity of the cession made by the State of Arkansas. The McGlinn case (114 U. S. 542, 5 S. Ct. 1005, 29 L. ed. 270), is direct authority for the contention made by plaintiff in error, that the laws of the State in existence at the time of the cession continue upon the reservation, where not inconsistent with the laws of the United States or where not abrogated by Congress after the cession.” Williams v. Arlington Hotel Co. (C. C. A.), 22F. (2d.) 669.
It therefore seems settled by the above authorities that the laws in existence in the State of Arkansas at the time of the cession are still in effect upon the reservation, as they are not inconsistent with the laws of the United States and have not been abrogated, and that the law of 1913 relied on by appellant is not operative.
Since we hold that the questions of law are settled by these authorities, it becomes unnecessary to decide any other question discussed by counsel.
The judgment of the G-arland Circuit Court is therefore affirmed. | [
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Mehaffy, J.
Tom Sheets, the appellant, brought suit in the Sebastian Circuit Court against Swift & Company, to recover $3,755.40. He alleged that he is doing a general egg and poultry business in the city of Memphis, Tennessee, under the firm name and style of Arkansas Produce Company, and that, on the 21st day of April, 1922, in the city of Fort Smith, he sold to the defendant, Swift & Company, at its office in Fort Smith, Arkansas, 480 cases of eggs, to be loaded at Booneville, Mansfield and Havana, and to be shipped to Swift & Company at Pine Bluff, Arkansas; and that, on the 23d day o.f April, 1926, defendant paid for said eggs by giving its check for the amount, payable to the order of W. H. Holland, Dewey Holland and John Pendergrass, from whom plaintiff had purchased said eggs, and who were to and did ship same by carload to Swift & Company at Pine Bluff, Arkansas. That said defendant gave said check knowing that the eggs belonged to him, and that plaintiff had paid W. D. Holland & Son for them. But the check was made to Holland & Son because Holland & Son shipped the eggs.
Sheets, the plaintiff, alleged that Pendergrass was a member of the firm of W. D. Holland & Son, and that, he indorsed the check in the presence of defendant and delivered it to plaintiff; that he deposited the check to his credit in the Commercial Bank & Trust Company of Memphis, and that Swift & Company stopped payment on said check, and the plaintiff had to repay the amount to the Commercial Bank & Trust Company. He asked judgment for $3,755.40 against Swift & Company.
The defendant, Swift & Company, denied all the material allegations of the complaint, but admitted that it stopped payment of the check because required to do so by John Pendergrass, the person to whom it was given for Holland & Son.
A number of persons who had advanced money and sold eggs to Holland & Son intervened, and the ease was transferred to chancery court, where it was tried and a decree entered in favor of the defendant. In the meantime, Swift & Company had deposited the money in court.
After some of the eggs had been bought and preparations were being made to ship a carload, W. D. Holland died, and the remainder of the carload of eggs was collected and the car was shipped after the death of Holland. '
The chancery court held that Swift & Company purchased the eggs from W. D. Holland & Son; that W. D. Holland was the owner of the business of "W. D. Holland & Son; that it was his individually, and that his son-in-law, Pendergrass, and his son were employees of W. D. Holland. The chancellor therefore held that the money belonged to the estate of W. D. Holland, deceased, and directed that it be paid over to the administratrix of W. D. Holland, deceased.
The court further held that the Bank of Booneville and other parties who intervened had claims against the estate of W. D. Holland, deceased, but that such claims would have to be filed in the probate court, and that the probate court alone had jurisdiction to allow or disallow said claims. The court also held that drafts that had been paid by Sheets for W. D. Holland & Son were claims against the estate, if they had not been paid, and that his remedy was to file his claim in the probate court in the usual way.
The chancery court had no jurisdiction. The interveners filed their claims with the probate court, and they have not appealed.
The only question to be determind by this court is whether or not Swift & Company was indebted to Sheets for eggs sold by Sheets to Swift & Company. Sheets claimed that Holland’s son and his son-in-law, Pendergrass, were partners in the businéss of W. D. Holland & Son, and .there was also some contention that Sheets himself was a partner.
All these matters of fact were settled by the decree of the chancellor, and we think that his findings are supported by the preponderance of the testimony. He found that W. D. Holland & Son sold the eggs to Swift & Company, and that the money paid into court as the purchase price of the eggs belonged to the estate of W. D, Holland, deceased.
We think that there was ample evidence to support the finding of the chancellor, and in all appeals from the chancery court the decree will be affirmed unless it is against the preponderance of the evidence. We think the finding in this case supported by a preponderance of the evidence, that the decree of the chancery court was right, and it is therefore affirmed. | [
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McIíaney, J.
On December 27, 1939, appellant purchased from the state the north half, south half, southeast quarter, 7-8-4 and north half, southwest, southwest, 8-8-4, in Cross county, Arkansas, receiving from the State Land Commissioner a deed therefor, which was thereafter duly recorded. The state’s title was based on a tax forfeiture and sale to the state in 1936 for the taxes of 1935.
On March 11,1940, appellee purchased from the state the south two-thirds of the south half, southeast one-fourth, 7-8-4 and the. south two-thirds of southwest, southwest, 8-8-4, Cross county, receiving from the State Land Commissioner a deed therefor, which was thereafter duly recorded. The state’s title was based on a tax forfeiture and sale to the state in 1933 for the taxes of 1932.
Appellant also got a deed from the St. Francis Levee District to all the southwest, southwest of section 8 and 15.3 acres in section 7.
She brought this action against appellee, setting up her title as aforesaid, and alleging that he had moved his fence and enclosed about 220 feet of her land and refused to give her the possession thereof. She prayed that appellee be enjoined from entering upon her land and that he be ordered to remove said fence and place it upon her south boundary line, and .that she be awarded damages. The answer was a general denial. Trial resulted in a decree dismissing the complaint for want of equity and an order directing appellee to refund appel lant any amount slie had paid the levee district on lands owned by him, a tender of which was made in court.
Prior to 1935, the land in the south half of the southeast quarter of section 7 and that in the southwest quarter of the southwest quarter of section 8, said township and range, had been assessed on the tax books of Cross county as north one-third of south half of southeast quarter of section 7, township 8 north, range 4 east, 26 2/3 acres in the name of John Coggins. South 2/3 of the same tract, 53 1/3 acres, in the name of Mrs. Sharp. North 1/3 of southwest, southwest, section 8, 13 1/3 acres, in the name of John Coggins. South 2/3 of the same tract, 26 2/3 acres, in the name of Mrs. Sharp. In 1933 the tax on each of these tracts was not paid, became delinquent, and all four tracts were sold to the state. Later appellee redeemed from the state the two tracts assessed in his name as the north 1/3 of each tract, but Mrs. Sharp did not redeem the south 2/3s of either tract assessed in her name and later the title to her two tracts was confirmed in the state. For the first time, in 1935, there appeared on the tax books an assessment of these lands which were described in section 7 as the north half (N%) of south half (S%) of SE1/., 40 acres, in the name of Mrs. Sharp, and south half (SVa) of south half (S%) of southeast quarter, 40 acres, in the name of John Coggins. ■ In section 8, the land was described as north half of southwest quarter of southwest quarter in the name of Mrs. Sharp, and the south half of southwest quarter of southwest quarter in the name of John Coggins. Not only were the descriptions changed from the north one-third and south two-thirds of each tract to the north half and south half, but the ownership was also switched. Of course the name of the listed owner is unimportant, but the fact that the title to the south two-thirds of these tracts had been in the state for two years is important. The 1935 description on the tax books as the north half of the south half of the southeast quarter of section 7 and the north half of the southwest, southwest of section 8 necessarily included a part of the 1933' forfeiture and sale to the state described as the south two-thirds of each tract. The title, therefore, to a portion of the 1935 description, being already in the state, the land was not subject to taxation as the north half. The north one-third of each tract was subject to taxation, because it. had been redeemed by appellee, but the north one-third was not assessed as such, but was attempted to be assessed as the north half description, which was ineffective because it was not described as the north third and because it included land already in the state and not subject to taxation.
Therefore, the 1935 tax forfeiture and sale to the state, being void for want of power to make it, the deed from the state to appellant based thereon is likewise void as to all lands covered thereby, the title to which was not already in the state, and the fact that the state’s title based thereon was confirmed did not cure the invalidity because, as we said in Crockett v. Beardon, 203 Ark. 48, in a similar situation, “Confirmation does not cure a sale that could not be made.” The collector would have no power to sell land to the state for taxes, when the title is already in the state.
The question then narrows down to the ownership, as between the parties, to a strip of land 220 feet wide and extending east and west across both descriptions and lying on the south side of the north half of the south half of the southeast quarter of section 7 and on the south side of the north half of the southwest, southwest of section 8. Appellant’s deed includes this strip, as does appellee’s, and it is conceded that the title to it was in the state by reason of the 1933 forfeiture and sale. Appellant’s deed, being prior in point of time to appellee’s, necessarily conveyed this strip to her, as it was included in the calls in her deed, and the subsequent deed from the state to appellee was ineffectual to this extent. The fact that her deed mentioned the 1935 forfeiture and sale is unimportant as to that strip already in the state. Walker v. Taylor, 43 Ark. 543. It was effective to convey whatever title the state had by any forfeiture and sale to it.
Appellant also relies on her deed from the levee district. The court correctly held that this purchase amounted to a redemption by her and adjudged that appellee should refund her the amount she had paid out on his land, a tender of which had been made by him.
The decree will be reversed, and the cause remanded with direction to enter a decree in her favor for the strip of land above described. | [
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Mehaffy, J.
The prosecuting attorney filed his information charging- the defendants with burglary and grand larceny. It charged that they did, in the nighttime, on April 17, 1941, with force break and enter the store building of E. G. Bobbins in the town of Joiner, Arkansas, with the intent then and there of committing grand larceny by stealing and carrying away personal property of the value of more than $10, and that they did steal and carry away one adding machine of the value of $225 and $300 in lawful money of the United States.
The appellants were arraigned and entered pleas of not guilty. Appellants were found guilty of the crime of burglary and their punishment fixed at imprisonment in the state penitentiary for a period of three years. They were not found guilty of grand larceny.
There was a motion for new trial which was overruled, the defendants saved their exceptions, prayed an appeal to the Supreme Court which was granted and the case is here on appeal.
William Guthrie, a witness for the state, testified that his home is in St. Louis; that he has been in the penitentiary both in Missouri and Arkansas; was sent to the penitentiary in Missouri on a charge of robbery and released August 12,1940, and went to Sikeston, Missouri; worked four months for Paul Jones, who runs a night club in Sikeston, and then worked a short time as a taxi driver for Jack London; London owns two taxicabs, drove one of them himself; on April 17, 1941, he was cooking for Joe Ryan; that was the first time he had met Ben Adams and Arthur McRee; Russell Corbin brought them to Ryan’s cafe; Corbin lived in Caruthersville; they went to find a man who could open a safe; witness told them Jack London could, so they went to get in touch with him; they said they knew a safe down in Arkansas where they could get from $500 to $1,000; when witness got off from work he went home and changed clothes; the others picked him up there and they all went to Joiner; got in London’s taxi in front of the house and talked; their car had Oklahoma license behind; London asked about the safe; witness had never had any dealing with safe breaking before; somebody said London would get the tools; the deal was made in London’s taxi; the five of them went to Hayti; two in London’s taxi and the rest in the Ford; left London’s taxi in Hayti and all got in the other car and went to Joiner; got there about midnight and parked the car behind the store; could not get into the store and went down to a junk pile and got a piece of iron and opened the door with it; London got the tools out of the car and opened the safe; the fellow that got the death penalty and Russell Corbin stood guard on the outside; witness held a flashlight; McRee was around in the store; Jack opened the safe with a punch and hammer; witness did not know how much he got, all he saw was about $30; McRee took the cash register out with him; he tried to open it and could not; they took about four cartons of cigarettes; after they left the store, they stopped on a bridge and someone threw the cash register out; later stopped to change a tire; witness does not know whére it was; lie was asleep; McRee and Adams went after the lire and Jack and Corbin were in the back seat; waked up just before they got to Hayti; divided the money and witness got $7; when they got to Hayti, London and witness got in the taxi and went to Sikeston; the other three got in their car and said they were going to Carutliersville. On cross-examination this witness said that he had quite a criminal career; served two terms in the penitentiary before this one; both terms for robbery; did not rob anjmne at Sikeston; has gone as long as several months without robbing or stealing; never know Ben Adams or Arthur McRee until they came that day with Russell Corbin; had never been in Joiner before, but has passed through; after they had broken into the store and got. the cash register and money they went, through Truman, but did not stop until they had á flat tire; does not. remember where they had the flat, he was asleep; got to Hayti about three o’clock in the morning; got to Sikeston about 4:15 and stopped at the cafe; went to the penitentiary in Arkansas in connection with another job; have been there about three and a half months; witness is cook at the cafe and doing his best to make a parole; his brother is a salesman, his father a real estate salesman in St. Louis, and witness is- the black sheep. When they went to Joiner witness was armed with a gun, a .44, and there was another gun, a -.38, but does not know who carried it.
Arthur McRee, another witness for the state, testified that he is 29 years old, single; present address in Arkansas State Penitentiary; serving a life sentence on a charge of robbery and murder. His testimony as to the burglary and larceny is practically the same as that of Guthrie; witness said that he had known Guthrie since 1939; had been in jail together. Witness then testified about their having crooked dice to sell; tried to sell to Corbin, but he would not buy; witness testified that he had killed a man in.Arkansas and he got a life term in the penitentiary; Ben Adams got the death penalty for the murder; they were arrested on the Joiner job about the first of June at Dallas, Texas; Guthrie was in jail' at Blytheville; Ben actually killed the man; he owned a liquor store and when they went in to rob him he resisted and they killed him.
Donald Watson testified that he lives at Arbyrd, Missouri, and runs a filling station owned by E. J. Eubanks; has worked there about two years; 34 years old and married; in April, 1941, he fixed a flat; drove out after midnight and fixed it; it was either a Chevrolet or Ford; thinks it yms a Ford; witness recognized Ben Adams and Arthur McRee as the men who came to the filling station; Adams came first and stayed at the filling station while witness went up and got the tire and brought it back; McRee came back with him; witness had trouble jacking up> the car; it was muddy and the oar was heavy; did not notice how many people were in the car; thinks McRee got out of the front seat; heard voices in the car and when they moved around in the car it would shake; does not know how many people were in the car; McRee and Adams are the men who came after the tire, and they are the only ones witness saw; just heard talking in the car and knew that there must have been more than one in the car.
Ike Lane testified that he lived between Joiner and Tyronza; was present when Alfred Jones found the cash register; the water was about two feet deep in the river; the register was open.
Riley Staton testified that he was present when Jones found the cash register in Tyronza River about fifteen feet north of the bridge.
Ben Adams testified that he was confined in the death cell at the state penitentiary for murder. His testimony was substantially the same as that of Guthrie.
E. T. Robbins testified about his store being* entered and the cash register being stolen and said there was about $30 in it; whs positive that $235 was stolen from the safe.
There was other evidence about the finding’ of the cash register and that cash register in court is the one taken from Bobbins ’ store.
The appellants then made a motion for a directed verdict, which was overruled. They introduced Harry Walden who testified in substance that he lived in Sikeston ; had lived there 20' years; that he drove one of Jack London’s taxis for about a year, and was driving for him in April, 1941; that he knows positively that Jack London was in Sikeston, Missouri, on the night of April 17, 1941, and worked with him all night.
Glenn Grigsby testified that he worked for the government and employed Jack London to drive him in his cab when it was necessary; saw London on April 17, 1941; London took him to a tavern in West Sikeston, stayed there about fifteen minutes, and then drove him to the Top Hat; drove him until about 10:15, witness fixed the date and what took place from a diary he keeps.
Clyde Smith testified that he has lived in Caruthersville since 1934, and works for the Brown Shoe Company; on the night of April 17,1941, he was in Caruthersville and attended a picture show at the Bodgers Theatre; saw Bussell Corbin at the theatre and talked to him; left the show before Corbin did, about 11 o’clock.
Balpli Willbnrn testified that he has lived in Sikeston about a year and a half; that on the night of April 1.7, 1941, he saw Jack London about nine o’clock at the Lane Theatre; London came in his cab and took witness to work.
Floyd Hinchey testified that he lives at Point Pleasant, Missouri, about 20 miles from Caruthersville; witness is Bussell Corbin’s cousin; that they went to a show together about nine o’clock on the night of April 17, 1941, and left about 11 o’clock.
Mrs. Orie Corbin testified that she lives at Caruthersville and runs a grocery store; Bussell Corbin is her nephew and was staying with her in April, 1941; he came in between 11 and 12 o’clock on the night of April 17, 1941; was there in the morning; Floyd Hinchey was with him and stayed all night there.
Other witnesses testified to the same effect; that is, about seeing the appellants at different places at the ■time of the burglary. There was then some rebuttal testimony introduced about the reputation of witnesses, but it is unnecessary to copy it here.
Appellants contend that the evidence is not sufficient to support the verdict; that the state relied upon the testimony of three accomplices and offered no testimony connecting the appellants with the burglary. In this contention, we agree with appellants. The three witnesses testifying against the appellants were all criminals; they had all been guilty of murder and robbery, and one of them, at the time, was under sentence of death for murder.
Section 4017 of Pope’s Digest is as follows: “A conviction cannot be had in any case of felony upon the testimony of an accomplice, unless corroborated by other evidence tending to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows that the offense was committed, and the circumstances thereof. Provided, in misdemeanor cases a conviction may be had upon the testimony of an accomplice.”
The only evidence claimed to corroborate the testimony of the accomplice in this ease was that of Donald Watson. He testified that he ran a filling station owned by E. J. Eubanks; that he fixed a flat tire in April, 1941, on either a Chevrolet or Ford; he recognized Ben Adams and Arthur McB.ee as the men who came to the filling station; went up and got the tire and brought it back; McBee came back with him; it was almost daylight; car was about a mile and a quarter from the station; after he fixed the tire they rode -back with him to the car. When asked if witness knew how many people were in the car he answered that he did not; that he only heard voices in the car and that people moved about, shaking the car; the only men he saw were the two he identified.
This was all the evidence offered in corroboration of the evidence of the accomplices, and there is nothing in this evidence that tends in any way to connect the appellants with the commission of the offense. He says there were some persons in the car, but he does not know who they were. How can it be said that this testimony tends to connect the appellants with the commission of the offense? .
In the case of Bennett and Holiman v. State, 201 Ark. 237, 144 S. W. 2d 476, 131 A. L. R. 908, this court quoted with approval from the case of Casteel v. State, 151 Ark. 69, 235 S. W. 386, as follows: “The court instructed the .jury that the witness, Termis Butts, was an. accomplice, and that the appellant could not be convicted upon his testimony unless the same ivas corroborated by other testimony tending to connect appellant with the commission of the crime charged against him, and that the corroboration was not sufficient if it merely showed that the offense was committed and the circumstances thereof, and that unless the jury were convinced beyond a reasonable doubt that the testimony of Butts was so corroborated they should find the appellant not guilty. In the above instruction the court correctly declared the law applicable to the testimony of an accomplice.” To support this holding the following cases are cited: § 3183, C. & M. Digest; Earnest v. State, 120 Ark. 348, 179 S. W. 174; Brewer v. State, 137 Ark. 243, 208 S. W. 290.
This court has many times passed on the statute above quoted and has always held that the corroboration was not sufficient unless it tended to connect the defendant with the offense.
Tn the case of Vaughan v. State, 58 Ark. 353, 24 S. W. 885, this court said: “The corroboration must be something more than ‘to merely show that the offense was committed, and the circumstances thereof. ’ He must be corroborated by other evidence tending to connect the defendant with the offense. Facts that go to the identity of the defendant in connection with the crime — that tend to connect him with it — would be material, and if the accomplice is corroborated as to these, it. is sufficient.”
Speaking- of the corroboration necessary for a conviction, this court said in the case of Wilson v. State, 190 Ark. 651, 80 S. W. 2d 925: “The court is of opinion that the testimony of the Lees, A. J. Kent and Buck Martin, at the most, created only a suspicion against appellant and did not, independently, and without the aid of the testimony of the accomplices, tend to connect appellant with the commission of the crime. ’ ’
Many decisions of this court might be cited in support of the rule that requires corroborating evidence tending to show the connection of the defendant with the offense, but it would serve no useful purpose to collect all of them.
In the case of Griffin v. State, 172 Ark. 606, 289 S. W. 765, this court said, after quoting the above rule: “It is immaterial whether the court and jury believe the accomplice or not. ’ ’ So, in this case, it is immaterial whether the court and jury believe the accomplices or not.
Under the statute quoted the testimony of the accomplices rnhst be corroborated by other evidence tending to connect the defendants with the crime, and in this case there is no such corroboration.
It is unnecessary to discuss the other question raised by appellants.
The judgment of the circuit court is reversed, and the cause remanded for a new trial. | [
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Mehaffy, J.
A. M. Bruce and Mrs. L. B. Bruce were married several years before the beginning of tbis suit, and lived together about five years. Prior to the marriage Mrs. Bruce owned in her own right a small tract of land on which she lived as her homestead before their marriage, 'and, after she and Mr. Bruce disagreed, she moved back to this place, and lived there until the death of A. M. Bruce, which occurred in October, 1926. Both parties had been married previously and had grown children, but there were no minor children, and no children as the result of this marriage.
Prior to the death of A. M. Bruce he had arranged with his grandson, J. A. Bruce, to move in with him and take care of the place and take care of him. This grandson moved in about a year before Mr. Bruce died.
Soon after the death of A. M. Bruce his widow administered on the estate, took charge of the personal property, and demanded possession of the lands. And when the possession of the lands was ’denied her, she brought this suit. She also sued for damages for the use of the land.
There is no evidence tending to show who was at fault or who caused the separation. Mrs. Bruce herself testified that they could not agree, but that she visited him after she had left him,, and he had told her that she had a home there whenever she wanted to come back, but that she did not go back there to live until after his death.
The case was tried before the court sitting as a jury, and a judgment was rendered for plaintiff, L. B. Bruce, for the recovery and possession of the lands, describing them, and for $40.25 as damages for the unlawful detention of said lands up to the date of the judgment, and at the rate of $116 a year from date of judgment until defendant yielded possession of said lands. The defendant objected and saved his exceptions, and filed motion for a new trial, which was overruled, and the case is here on appeal.
There is practically no dispute about the facts, and, as stated by counsel for appellant, “The first question in this case that presents itself is, what is meant by the constitutional provision to the effect that said widow has no separate homestead-in her own right?”
Article 9, § 6, of the Constitution of Arkansas reads as follows:
“If the owner of a homestead die, leaving a widow, but no children, and said widow has no separate homestead in her own right, the same shall be exempt, and the rents and profits thereof shall vest in her during her natural life. Provided, if the owner leaves children, one or more, said child or children shall share with said widow, and he entitled to half the rents and profits till each of them arrives at twenty-one years of age; each child’s rights to cease at twenty-one years of age, and the shares to go to the younger children, and then all to go to the widow; and provided, said widow or children may reside on the homestead ox not. And, in case of the death of the widow, all of said homestead shall be vested in the minor children of the testator or intestate. ’ ’
Appellant argues that the widow is not entitled to claim homestead out of the lands, because it is alleged she abandoned her husband and lived apart from him on a homestead belonging to her; that she owns and occupies a separate homestead in her own right, and that therefore she cannot claim one from her deceased husband. This is the only question in the case; the question whether she is entitled to a homestead in the lands of her deceased husband.
This is not claimed as the homestead of a wife or the head of a family, but is claimed as the widow’s homestead, and, of course, her right to a widow’s homestead, if it accrued at all, accrued upon the death of her husband.
This court said, in a case where a woman owned a separate homestead and lived on it several years before the death of her husband: ‘ ‘ The only question addressed to us for determination is whether the ownership of the lands in her own right, and upon which she and her husband lived for some years in their early married life, bars her claim of homestead in his lands, which they had occupied as a homestead for many years next preceding and up to his death.”
The difference between that case and this, of course, is that, in the present case, the wife was living on her own place at the time of the death of her husband, and in the case quoted from they had lived on her place but had moved back to his. But in each case she owned it in her own right, and we do not think that the facts in this case would preclude her from claiming a homestead in the lands of her deceased husband.
In the same case above quoted from, the court said:
“In construing the language of this section, this court, in Thompson v. King, 54 Ark. 11, 14 S. W. 926, said: ‘The object of this section is to protect the home of the married and the family against seizure or sale, and no reason can be advanced why the land of the wife occupied as the home of the husband and his family should not be protected 'as well as the land of the husband should be when it is the homestead.’ * * * The separate homestead referred to in the section of the Constitution just quoted is not the separate homestead of the wife, but of the widow, that is, the separate homestead of the widow, selected by her on her own lands after the death of her husband (for she is not the widow until then). * * * In other words, the section was construed to have reference to a separate homestead of the widow, established by her as a widow; that is, after, and not before, the death of her husband.” Wilmoth v. Gossett, 71 Ark. 594, 76 S. W. 1073.
It will, of course, be conceded that, if Mrs. Bruce had lived with her husband on his homestead until he died, she would have been entitled to the homestead, notwithstanding she owned a tract on which she had formerly lived. To hold that the conduct of a man is such that his wife may live with him agreeably until he dies and be entitled to the homestead, and to contend that she would disentitle herself by leaving him, no matter what the treatment may have been, would be unreasonable. She becomes entitled to the widow’s homestead upon his-death, and not before. And the fact that they could not agree, and that this failure to agree made it necessary for her to live apart from him, should not and does not deprive her of her homestead rights under the Constitution.
This court said: ‘ ‘ There is some testimony tending to show that plaintiff did not remain at home with that constancy due from a wife, but it is not sufficient to establish an abandonment "of her husband’s bed and board. Even if there had been such desertion, it did not amount to a forfeiture of the widow’s homestead right.” Brown v. Brown, 104 Ark. 313, 149 S. W. 330.
The question in this case, of course, is that she owned and occupied another homestead, and in the above case it is not contended that she owned another homestead. But the owning of the other property is immaterial. As we have said, her right to a widow’s homestead accrued when he died, and she had a right to select then. And if her abandonment or desertion did not deprive her of this right, certainly the fact that she lived on property belonging to her would not affect it.
In construing the section of the Constitution with reference to a.widow’s homestead, this court has said:
“It would seem that the language of this section of the Constitution settles the question involved in this suit. The appellee had never been divorced from her husband, and she was unquestionably his widow. How then can she be debarred of her homestead right, without reading into the Constitution an exception or provision it does not contain, to the effect that, if the wife abandon her husband, and is guilty of immoral and unwifely conduct, she shall forfeit her right thereby to the homestead? We think such a construction unwarranted and untenable. * ' * * In this State it is held that the domicile of the wife follows that of the husband, and we understand this to be the rule, and that the fact that she abandons her husband, and lives apart from him in another State, will not form an exception, nor cause her to forfeit her right to the homestead. She is not a nonresident while her husband is a resident. Her legal status, as to this, is governed by that of the husband.” Duffy v. Harris, 65 Ark. 251, 45 S. W. 545, 40 L. R. A. 750, 67 Am. St. Rep. 925.
If the domicile of the wife follows that of the husband, and there can be no dispute about this, then the domicile of Mrs. Bruce, although living separate and apart from him, was the domicile of her husband. And her legal status is governed by that of her husband, and immediately on his death she becomes entitled to her homestead as a widow. If, after his death, she had remained on her own property, claiming- that as her homestead, it might have been an abandonment of her homestead in his estate. But she did not do this. She administered on his estate and claimed a homestead as his widow. And what the Constitution means in speaking of a separate homestead in her own right is that, as a widow, and not as a wife, she occupies and claims this homestead, because it says “the 'said widow has no homestead in her own right.” She was not entitled to any widow’s homestead until his death, and if she immediately claimed homestead in her husband’s property, she did not, as widow or after she was his widow, claim a homestead elsewhere.
There is no dispute about the facts in this case. Qur Constitution provides: “If the owner of a homestead die, leaving a widow, but no children, and said widow has no separate homestead in her own right, the same shall be exempt, and the rents and profits thereof shall shall vest in her during her natural life,” etc.
The only controversy iat all is about the following portion of the section: “Has no separate homestead of her own right.” Our'court has construed this to mean a homestead of the widow, and not the homestead of the wife. She becomes entitled to it on his death, and unless, after his death, the widow selects some other homestead, she is entitled to this, and the .fact that she had to .live apart from the husband, whether it was her fault or his, does not amount to an abandonment of the homestead.
It has been said: “The law is not concerned about the precise locality of the family at any time, but it is concerned that, wherever they may be carried by convenience or chance or misfortune, there shall be a place . to which they may return to find the shelter and security of a home. The homestead therefore is not to be likened to prison bounds, within which the family must always remain, but to a sanctuary to which they may always return. And an abandonment is accomplished, not by going away without any intention of returning at any particular time in the future, but by going away with the definite intention never to return at all.” Foreman, v. Meroney, 62 Texas 723.
The undisputed proof is that the husband, prior to his death, told her that she had a home there whenever she wanted to return as long as she lived, and she recognized that as her right, as her homestead to which she could return.
The judgment of the circuit court is correct, and is therefore affirmed. | [
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Humphreys, J.
Appellee instituted this suit against appellant in the circuit court of Cleveland County to recover $3,840 which she deposited with it in the'capacity of administratrix of her deceased husband’s estate. Appellant filed an answer, interposing the defense that it applied the deposit to the payment of notes to an equal amount which appellee’s- intestate owed it at the time of his death.
The cause was submitted to the court without a jury for determination upon the following agreed statement of facts:
“It is agreed by and between the plaintiff and the defendant that the following are the facts and are to be considered as the only facts in this case: The plaintiff, Lola Doster, is the administratrix of the estate of R. M. Doster, deceased; that she was appointed such by the probate court of Cleveland County on the 31st day of July, 1926; that R. M. Doster, plaintiff’s intestate, died on the 29th day of July, 1926; that, at the time of the death of the said R. M. Doster, he was indebted to the defendant bank in the sum of $3,840, represented'by three promissory notes, copies of which are filed as exhibits to defendant’s answer and admitted to be'correct. It is further agreed by the parties hereto that on August 20, 1926, the plaintiff had on deposit in the defendant bank the sum of $3,840 to her credit as such administratrix, and that there remained no other funds on said date to her credit in said bank; that on said August 20, 1926, the defendant bank applied said sum of $3,840' as a credit and as. an extinguishment of the indebtedness of the said R. M. Doster, plaintiff’s intestate, which indebtedness was represented by said promissory notes, and totaled the sum of $3,840. That on August 4, 1926, the plaintiff deposited with the defendant bank certain cheeks, made payable to R. M. Doster, in the sum of $2,708.92, which amount was placed to the credit of Lola Doster, administratrix, and that thereafter, on several and divers occasions until the 19th of August, 1926, the plaintiff deposited other checks, payable to her as administratrix, totaling1 the sum of $7,034.16; that the proceeds of said checks, so deposited represented the proceeds from the sale of lumber made by the deceased, R. M. Doster, but sold by the administratrix. It is further agreed that, at the death of the said R. M. Doster, he was wholly insolvent, and that claims totaling $25,000 have been duly presented to and allowed by said administratrix against said estate, including a duly verified claim by the defendant bank for the money being sued On in the instant case; that the estate in the hands of the plaintiff administratrix, when applied to the extinguishment of the probated claims and court costs, will pay the creditors less than 10 per cent., assuming that the amount sued on herein is. returned to the administratrix. ”
The trial court rendered a judgment against appellant for $3,840, with interest thereon from August 20, 1926, until paid, and for the costs, from which an appeal has been duly prosecuted to this court.
It is contended by appellant that, under authority of § 1198' of Crawford & Moses’ Digest, it had a right to apply the .sum of money belonging to the estate of the deceased in satisfaction of the debt of appellee’s intestate. The section of the statute relied upon is as follows:
“Set-off against personal representatives. In suits by executors or administrators, debts existing against their testator or intestate, and owing to the defendant at the time of the death of the testator or intestate, may be set-off by the defendant in the same manner as if the action had been brought by and in the name of the deceased.”
Appellant admits that, if the statute is merely declaratory of the .common law, it had no right to make the application, as, under the common law, the debts of a decedent could not be set-off in a suit by the executor or administrator against a person indebted to the decedent. Appellant insists, however, that the statute is not declaratory of the common law, but was passed in derogation of the common law. We think the statute is declaratory of the common law. According to its phraseology, it only allows set-offs in suits brought by executors or administrators against debtors of the testator or intestate which would have been set-off had the testator or intestate brought the suit. In the instant case the intestate could not have brought the suit against appellant because it did not owe him anything at the time he died. The right of set-off under the statute applies to existing indebtedness. Any other interpretation of the act relied upon would result in a preference to any debtor of a testator or intestate who might come into the possession of any of the intestate’s property after his death. We do not understand that a different rule of interpretation was announced in the cases of Fishburne v. Merchants’ Bank of Port Townsend, 42 Wash. 473, 85 P. 38, 7 Ann. Cas. 848, or in tire case of Ainsworth v. California Bank, 119 Cal. 470, 51 P. 952, 39 L. R. A. 686, 63 Am. St. Rep. 135. The question of tlie interpretation of the statute or code in those cases turned upon whether the demand of the debtor against the estate of the testator or intestate belonged to the debtor at the time of the death of the testator or intestate.
No error appearing, the judgment is affirmed. | [
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Mehaeey, J.
On June 17, 1938, Elbert Williams, a youth then 18 years old, broke his arm in cranking an automobile. This injury occurred in Scott county of which young Williams was a resident. He was taken to Mena in Polk county, and placed in charge of Dr. H. Gr. Heller for treatment. The treatment was not satisfactory and upon its termination J. E. Williams, also a resident of Scott county, as father and next friend of the boy, brought this suit against the doctor for damage, it being alleged that through the incompetency of the doctor an improper union of the bones had been made, which resulted in a deformity of the boy’s arm. The father made himself a party to this suit, and sued for damages which he alleged he had personally sustained.
Objection was made to the venue of the suit of the father for his own benefit; but no such objection appears to have been made as to the suit by the father as next friend.
The jury returned the following verdict: “We, the jury, find in favor of the plaintiffs damages of $600.” Neither the verdict nor the judgment pronounced thereon indicates how much of this recovery was for the father’s personal benefit nor how much for the benefit of the son.
Numerous errors alleged to have been committed during the progress of the trial are assigned, and, among others, that the court was without jurisdiction to try the suit of the father. As we are of opinion that this assignment of error is well taken, we do not consider any other.
We are of opinion that the Scott circuit court had jurisdiction of the suit for the benefit of the son, notwithstanding the service of process having been had in Polk county.
We find it unnecessary to decide whether the lack of jurisdiction was a question which could he and has been waived, because this objection was made as to the suit of the father for his personal benefit and a single verdict was returned. If there could be and has been a waiver of this objection, so far as it relates to the suit for the benefit of the son, the fact remains that it was not waived in the suit of the father, as a single suit was filed and a single verdict returned.
We are all of the opinión that the suit brought by the father for his own'benefit in Scott county, upon service of process had in Polk county, should have been dismissed for the want of jurisdiction; and a majority are also of the opinion that the Scott circuit court, under the circumstances stated, had jurisdiction to try the suit of the son.
The jurisdiction of the Scott circuit court is predicated upon Act 314 of the acts of 1939, p. 769, the relevant portion of which reads as follows : ‘ ‘ Section 1. All actions for damages for personal injury or death by wrongful act shall be brought in the county where the accident occurred which caused the injury or death or in the county where the person injured or killed resided at the time of injury, and provided further that .in all such actions service of summons may be had upon any party to such action, in addition to other methods now provided by law, by service of summons upon any agent who is a regular employee of such party, and on duty at the time of such service.”
We have reached the conclusion that the malpractice of the doctor, arising out of his alleged incompetency, was, within the meaning of this act, a personal injury, to compensate which the injured party has, under the provisions of Act 314, the right to sue for compensation for his injury, either in the county in which he resided at the time of the injury or in the county where the injury occurred.
The word “accident” necessarily means the act causing the injury, and while the accident caused young Williams ’ arm to be broken, this is not what he is suing for; he is suing for damages for the wrongful conduct of the doctor in setting his arm. The theory of the case is that, after the accident had occurred which caused the breaking of the arm, the doctor then gave the injured party unskillful treatment, in another county. In other words, this is a suit for damages for malpractice, and the act expressly provides that all actions for damages for personal injuries, etc., shall be brought in the county where the accident occurred which caused the injury or death, or in the county where the person injured or killed resided at the time of the injury. The injury complained of by the son was not the breaking of his arm, but that alleged to have been caused by the wrongful conduct of the doctor in setting it. It is not contended that the doctor had any connection with the automobile accident when appellee’s arm was broken, but it is contended that the doctor was guilty of wrongful conduct which injured or damaged the young man, and it is for the damages for this alleged wrongful conduct for which suit is brought.
The case of Cortes, Admr., v. Baltimore Insular Line, Inc., 287 U. S. 367, 53 S. Ct. 173, 77 L. Ed. 368, was a suit brought under a federal statute, which provides “That any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, . . .” Santiago, after shipping as a seaman, fell ill of pneumonia, and his administrator alleged that his intestate died through lack of attention. It was held that the failure to furnish attention to the seaman was a tort, resulting in personal injury, within the meaning of the statute, for the reason that once the voyage was begun, the seaman was cut off from care and cure unless provided by the officer and crew of the vessel. This failure to furnish care and cure was the proximate cause of the seaman’s death.
Here, the proximate cause of the deformity to young Williams’ arm was the injury sustained in Polk county. The effect flowing from this cause might have been averted had the injured party been given the skillful care due him from appellant as his physician and surgeon; and this failure was an accident within the meaning of Act 314. No question of venue was involved in the Cortes case, supra, while here it is the only question now being considered.
Act 314 is a venue statute, and it localizes the venue of suits growing out of negligent accidents or occurrences. After the accident which caused the original injury had occurred in Scott county, young Williams was removed to Polk county where appellant’s connection with the injury had its inception, and if any liability attaches to appellant through his ineompetency or inattention, that liability arose, not in Scott county, but in Polk county.
The first case before us which involved the construction of Act 314 was that of Coca-Cola Bottling Co. v. Kincannon, Judge, 202 Ark. 235, 150 S. W. 2d 193, 134 A. L. R. 747, in which case the plaintiff alleged she had been sold a polluted bottle of Cocar-Cola, which she had drunk, thereby sustaining the damages for the compensation of which the suit was broug’ht. It was there insisted that the statute applied only to injuries of a traumatic nature. We held that the act was not thus limited, but covered wrongful acts from which personal injuries result. In so holding we defined the word “accident,” appearing in the statute as follows: ‘‘The word ‘accident’ was not used in a metaphysical sense, but as commonly employed and usually understood, and in the act means the incident or the wrongful act which caused the in jury. ’ ’
The incident which caused the injury complained of was the misconduct of the doctor, and this occurred in Polk county. The act, therefore, confers no authority for the father to sue the appellant doctor in Scott county upon service had on him in another county. The judgment must, therefore, be reversed and the cause remanded with directions to quash the summons and the service thereon as to the father’s case, and the case of the young man is reversed and remanded for new trial.
Mr. Justice G-reenhaw dissents from that part of the majority opinion which holds that the Scott circuit court had jurisdiction of the minor’s cause of action, for the reason that under such holding a physician who treats patients from other counties in this state could be forced to leave the county of his residence, where the treatment was administered, and defend malpractice suits filed against him by patients anywhere they reside in the state; and it is his opinion that actions for malpractice were not included in nor contemplated by Act 314 at the time of its passage, and that such actions against a physician must be brought against him in the county where he resides or is served with summons.
McHaney and Holt, JJ., concur in this dissent. | [
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Wood, J.
The facts are correctly stated by counsel for the appellant as follows: Appellant was indicted and convicted under a charge of selling liquor in Little River County. The indictment was returned at the July term, 1927, of - the court. Two witnesses testified, on behalf of the State, that they bought a pint of liquor from the defendant during the overflow of Red River in April, 1927, and that they bought it on the K. C. S. Railway Company’s bridge where it crosses Red River, near Index; that they went down to the river .from Ogden, Arkansas, about two miles north of the bridge, between three o’clock and four o ’clock in the afternoon one day, to seethe overflowed river, and walked out on the railroad bridge that crosses the river, and met appellant on the bridge about sixty feet from the north end, and bought the liquor from him at that place on the bridge, and paid him one dollar and fifty cents for it (one of them said $1) and stood there where they bought it, and the two of them drank all of it and threw the bottle away; that they then walked back to Ogden, about two miles, where they lived; that, at that time, Red River was on. a big overflow and the water was all over the bottoms from Ogden to the bridge, and they had to walk on the K. C. S. Railway’s tracks across the bottoms to the bridge, and that the water was over everything but the railroad dump on which the track was laid, and stood up against the dump; that there was no other way to get to the bridge; that, when they went back to Ogden, they remained there a while, and then dressed and went to Ashdown, about ten miles away, to attend some sort of exercise at the Ashdown High School that night; that, while they were at Ashdown, they procured an automobile, and were riding around that night in Ash-down, and ran into a young lady’s automobile, and were both arrested by the Ashdown police and put in jail and kept there over night, and that the officers arresting them asked where they got their liquor which made them drunk, and they told the officers they got it from the appellant, and that was the way the officers learned who sold them the liquor. They also testified they were drunk when arrested, and that they had drunk no liquor except what they got from the appellant on the bridge. One or both of them testified that they were arrested some time in the night, about eight o’clock.
Appellant denied selling the liquor, and also denied seeing these young men at all on the bridge or elsewhere that afternoon, and introduced as witnesses two young white men, who were members of a section crew on the railroad bridge and the other bridge between the bridge across Red River and Ogden, and they testified that they and this section foreman were at work on the afternoon of the day these two State witnesses swore they went down the railroad track from Ogden to the bridge across the river, and that they were well acquainted with both the State witnesses, and lived at the same place, Ogden, and they did not see either of them on the track or dump that afternoon. Also that Mr. Casey, the section foreman, was with' them, and that, at the time of the trial, Casey was at Bloomburg, Texas.
Other witnesses were called, who testified that they were at the bridge that afternoon, and did not see appellant, and also that the railroad company was at the time keeping guards on the Red River bridge for the purpose of keeping people off the bridge, and that no persons were allowed to go out on the bridge. Other witnesses testified that they were planting cotton in the same field with defendant at the time the 'State witnesses said they bought the liquor from him, and that defendant never left the field or his work at any time that afternoon.
1. One of the grounds of the motion for a new trial is that the verdict is contrary to the evidence. Learned counsel for the appellant contend that the above facts do not constitute any substantial testimony to justify the verdict. Counsel argue that there was no evidence to show that the two State’s witnesses were not normal men, and, if so, it was impossible for them to have been drunk after eight or nine o ’clock that night on a pint of liquor which they had bought and drunk between three and four o’clock that afternoon. Counsel appeal to the “knowledge of the common experience of mankind,” as possessed by the judges of this court, to uphold their argument that the testimony of the State’s witnesses to the above purport is “unworthy of belief, is mythical, and is not substantial testimony on which to base a verdict. ’ ’
The .judges of this court have no “knowledge of the common experience of mankind,” as-to whether or not it is impossible or even improbable that a pint of liquor, especially “bootleg liquor,” drunk by two men between three and- four o ’clock in the afternoon, would produce in them a state of intoxication or drunkenness which ■would continue until eight or nine o’clock that night. If this be a subject which expert testimony could make clear in the defense of the appellant, no su'ch testimony was adduced. If such be a physiological fact of science, it might be established by experts having special knowledge of that subject, but it is a matter of which the court could not judicially know. In the absence of testimony to the contrary, the jury was fully warranted in believing the testimony of the witnesses for the State. This is a matter wholly within the province of the jnry, as the sole judges of the credibihdy of the witnesses and the weight to be given their testimony.
2. Counsel for the appellant insist that the court erred in refusing to grant appellant’s prayers for instructions numbered 3, 4, and 5. These, in effect, would have told the jury that the defendant could not be convicted upon suspicion, however strong such suspicion might be; that the defendant was entitled to the presumption of innocence,- which was not a mere form, but an essential and substantial part of the law, binding upon the jury, and entitled the defendant to an acquittal, unless the State, which had the burden of proof, established by evidence that the defendant was guilty of the crime as charged beyond a reasonable doubt.' These instructions contained- correct- propositions oflaw which have been over and over again announced by this court. But, while announcing in a general way the correct principles of law, they were couched in language more or less argumentative in form, and they were fully covered .by instructions numbered 4 and 5, which the court gave, as follows:
"4. The jury are .instructed that the indictment is not evidence of the defendant’s guilt; that the defendant is presumed innocent and noi guilty, as charged in the indictment, and that this presumption follows him throughout the trial, until the jury are constrained to find him guilty, from the evidence in the case, beyond a reasonable doubt; that the burden is upon the State' to prove the defendant guilty beyond a reasonable doubt.
‘ ‘ 5. The jury are instructed that a reasonable doubt is that state of mind which, after a full consideration and comparison of all the evidence, leaves the minds of the jury in that condition that they cannot say they feel an abiding conviction, amounting to a moral certainty, of the guilt of the defendant. But a reasonable doubt is not a mere captious, possible or imaginary doubt, but is such a doubt as a reasonable man would have in,matters of gravest concern to himself, and it must arise out of the evidence in the case.”
The above instructions given by the court were correct in form, and gave 'the defendant the benefit of the presumption of innocence, and of any reasonable doubt the jury might have of the defendant’s guilt, from the evidence in the case, expressed in language which is wholly unobjectionable and in substantial conformity with many previous decisions of this court. They also correctly declared that the burden was upon the State to prove the defendant guilty beyond a reasonable doubt.
The court also gave the following instruction:
”3. The jury are instructed that you are the exclusive judge of the evidence and of the credibility of the witnesses and the weight to be given to their testimony. If you believe any witness has willfully sworn falsely to any part of his testimony, you may consider such part of his testimony as yon believe to be true and disregard such parts as you do not believe to be true. And in considering the weight that should be given to the testimony of any witness, you may take into consideration his manner of testifying, his intelligence, his means of knowing the facts to which he testifies, his interest, if any, in the prosecution or defense, the reasonableness or unreasonableness of his testimony, and also whether he is contradicted or corroborated by other facts proved in the case.”
A general objection was urged to the above instruction in the court below, and a special objection is insisted upon here to the concluding words of the instruction, as follows, “and also whether he is contradicted or corroborated by other facts proved in the case.” The instruction was general in terms, and applied to the testimony of any witness in the case. It did not single out the defendant and malee the language complained of apply only to him. It is a sound principle of law to say that the jury, in weighing the evidence and passing on the credibility of witnesses, may consider whether the testimony of any witness is contradicted or corroborated, as the case may be, by other proven facts in the case. The jury should not be deprived of any proper rule or standard that may enable them to determine whether or not the testimony of any witness is credible, for this is a subject within their exclusive province.
There are no errors in the rulings of the trial court, and its judgment is therefore affirmed. | [
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Conley Byrd, Justice.
This litigation arises over a contract whereby appellant Paul Bryant employed ap-pellee V. J. Brady to do certain clearing. Brady initiated suit claiming that after credit for payment of $1,000 he was entitled to a balance of $1,933.50. Bryant denied that Brady had performed his contract and filed a cross action claiming damages, among other things, for loss of rental, for loss on sales of cows, and for pain and mental anguish, all ini the amount of $6,050. From, a jury verdict awarding Brady a judgment of $1,500, appellant appeals, contending that he was not permitted sufficient time to make discovery; that the verdict was excessive and not warranted by the facts; and that the “jurors did not truthfully answer questions proposed to them by the judge as to their knowledge and acquaintance with the plaintiff as they were qualified.” Since we reverse the pase upon the third point, we do not reach the first two.
The record on the third point shows that juror Estel York had known Brady all of his life and that during the time of the lawsuit Brady was purchasing gasoline from him. He did not recall Judge Roberts’ asking the jurors, “Do you, or any of you, know the plaintiff or the defendant?”
Juror T. F. Bryant (not related to appellant) had known Mr. Brady all of his life. During 1960 and 1961 he and Brady had together bought a cotton stripper and used it in their farming operations. When first asked if he recalled Judge Roberts’ asldng him, “Do you know the plaintiff or defendant?” juror Bryant answered, “No sir, that question was not asked.” Subsequently juror Bryant testified that he did remember Judge Roberts excusing one or two jurors. Thereafter the following occurred:
“Q Do you know what questions were asked of them?
A Well, not particularly I don’t. Seems like one of them had business with him the last year or two or something, maybe currently doing business with him.
Q What prompted that answer — that response, Mr. Bryant, by that prospective juror ?
A I don’t know. Maybe he was asked, I don’t know. Maybe be was currently doing business with him.
Q Well, are you saying that these jurors may have been asked some question that prompted that response, or you don’t know, or didn’t hear, or what is your recollection of that?
A Well, I believe the question was asked, ‘Have you done business with Mr. Brady, or currently doing business with him, in the last year or so?’
Q You did hear that question, ‘Have you done business with Mr. Brady in the last year or so?’
A Yeah.
Q You heard that question?
A Yeah.
Q And did you see anyone that made a response to it?
A Well, there was some left the room; I suppose that was the cause of it.”
Juror J. M. Cartwright testified that he had known Mr. Brady for a long time and that he did not respond when Judge Roberts asked if any of them knew the plaintiff or the defendant.
Juror Ellis Lasley testified that he had known Brady all of his life, that he had operated a gin from 1920 to 1963 and that Brady had ginned cotton with him. He recalled Judge Roberts’ asking some questions and people raising their hands and indicating an answer or response to those questions. He remembered that a Mr. Hiegel had made a statement and that Judge Roberts had excused Mr. Hiegel. When specifically asked, “Do you remember Judge Roberts asking the jury panel, ‘. . . Do any of you know the plaintiff or defendant?’ ” juror Lasley answered, “I don’t know whether he said that or not.”
The record on the motion for a new trial obviously shows that Judge Roberts, in qualifying the jury, asked if any of the jurors knew Brady or Bryant and if any of the jurors were doing business with either Brady or Bryant. The record also establishes that these four jurors remained silent to the questions of the judge, although other prospective jurors raised their hands or otherwise responded to the judge’s questions.
In Missouri Pac. Transportation Co. v. Johnson, 197 Ark. 1129, 126 S. W. 2d 931 (1939), we recognized that the silence of a juror in a situation such as this amounts to an answer. Certainly here, where other jurors understood the questions and responded, we must accept the jurors’ silence as a responsive answer to the court’s questions.
In D. F. Jones Construction Co. v. Fooks, 199 Ark. 861, 136 S. W. 2d 487 (1940), two of the jurors were qualified by the trial court on the basis that they had not formed any opinion about the lawsuit and “that they had not been talked to by anyone relative to the case.” On motion for a new trial it was shown that one Clyde Robins, prior to the trial, had offered the two jurors a bribe to return a verdict for Fooks. In holding that the trial court abused its discretion in failing to set aside the verdict, we said:
“The jury system is a great institution and should hold itself aloof from any and all corrupt influences. Members of juries owe it to themselves and to the great system to preserve the integrity of their verdicts. If there is substantial evidence in the case to support the verdict of the jury this court will not try a case de novo, but will accept and receive the verdict of the jury as final on issues involving not only property rights, hut issues involving life and death. The only way to preserve the integrity of the verdicts of juries and keep the stream of justice pure is to set aside verdicts returned by juries which have been tampered with or attempted to he tampered with. ’ ’
Here we think the trial court abused its discretion by not setting aside the verdict. Obviously, the jurors did not fairly answer the questions put to them by the court. Of course, truthful answers to the questions would not necessarily have disqualified the jurors, but how can we assert that they returned a fair verdict when they did not give fair answers to questions of the court? When viewed from the standpoint that “justice ought not only to be fair but appear to be fair,” Arkansas State Hwy. Comm’n v. Young, 241 Ark. 765, 410 S. W. 2d 120 (1967), we think the trial court under the record here abused its discretion in not setting aside the verdict.
Appellee argues that the motion for new trial can not be considered because it was not verified as required by Ark. Stat. Ann. § 27-1905 (Repl. 1962), which provides :
“Norm of application. — The application must be made by motion, in writing, setting forth in separate paragraphs the grounds or assignments of error relied upon for reversal of the verdict or decision. The grounds mentioned in the second, third and seventh subdivisions of section 1536 [§ 27-1901] must be sustained by affidavits or other competent testimony, showing their truth, and may be controverted in the same manner. [Civil Code § 374; C. & M. Dig., § 1315; Pope’s Dig., § 1540; Acts 1939, No. 167, § 1, p. 402.]”
We do not agree with appellee’s interpretation of the statute. As amended by Act 167 of 1939, the statute requires only that the grounds mentioned in the second, third and seventh subdivisions of Ark. Stat. Ann. §27-1901 (Repl. 1962) must be sustained by “affidavits or other competent testimony, showing their truth.” In this case appellant sustained his grounds by the sworn testimony of the jurors in open court. Furthermore, the motion for new trial may be considered as having been brought under the first section of § 27-1901, which is not affected by § 27-1905.
Reversed and remanded.
Jones, J., dissents.
Although Judge Roberts qualified the jury, he disqualified himself, and Hon. Rolland Bradley was elected to serve as special judge in his stead. | [
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Smith, J.-
On the 19th day of July, 1927, information was filed by the deputy prosecuting attorney of Greene County before a .justice of the peace of that county, charging Archie Underwood with the crime of arson, alleged to have been committeecl by the accused by burning a-'building, the property of James Keisler, and at the examining trial the accused was held to await the action of the grand jury of that county at its ensuing term.
On the day of this trial Keisler filed a petition in the juvenile court of Greene County, charging that the said Archie Underwood was a delinquent child, sixteen years old, and “that said child has committed some wrongful acts, and that his parents fail to control him. ’ ’ The hearing of this petition was had on the following day, and the court found that “said Archie Underwood is guilty of delinquency, and should be sent to the Boys’ Industrial School at Pine Bluff. ” Upon this finding it was adjudged that the sheriff of the county “take immediate charge of the said Archie Underwood and deliver him to the Boys ’ Industrial School at Pine Bluff, Arkansas, there to remain in the care, custody and control of the authorities of the said Boys'’ -Industrial School for a term of three years. ’ ’
Immediately thereafter a petition for a writ of habeas corpus was filed by the father of ’said Archie Underwood, in the circuit court, and, at the same timé, a petition for a writ of certiorari was filed, praying the circuit court to quash the order and judgment of the juvenile court. By consent these petitions were heard as a single cause, and the prayer thereof denied, and the infant was remanded to the sheriff of the county, to be delivered to the authorities of the Boys’ Industrial School, as directed by the order of the juvenile court, and this proceeding has been brought before us by certiorari for review'.
We judicially know that the Boys ’ Industrial School at Pine Bluff, to which the order of the juvenile court committed the petitioner, Archie Underwood, is an institution used for the care, imprisonment and reformation of delinquent criminals who have been convicted of the commission of some felony. This institution was established under authority of act 67 of the Acts of 1917 (vol. 1, p. 288, Acts 1917), § 1 of which recites that its erection and maintenance was authorized for “the purpose of securing a better location and improved condition for the State Reform School, * * * ” etc. Sections 802 et seq., C. & M. Digest.
Section 804, C. & M. Digest, provides that all persons under the age of eighteen years hereafter' sentenced- to the penitentiary' shall he committed to and placed in the reform school, provided that persons under that age convicted of a felony may be sent to the penitentiary, if, in the judgment of the trial judge, such course may be expedient.
The Boys’ Industrial School at Pine Bluff is therefore an institution designed for the care, imprisonment and reformation of juvenile criminals, and it was to this institution that the order of the juvenile court committed the petitioner, Archie Underwood.
The testimony taken before the county judge, as judge of the juvenile court, was to the effect that the petitioner was not, prior to the commission of the alleged crime of arson, delinquent, and his delinquency consisted in the commission of that crime, if, in fact, he is guilty of it.
The evident purpose of the order here under review was to punish the delinquent. He was sentenced to the institution to which juvenile felons may be sent, and for the definite period of three years, which is a sentence that might have been imposed upon a conviction before a jury for the crime of arson. Section 2422, C. & M. Digest.
It was not the purpose of the law under which the juvenile courts function to confer any such jurisdiction. The intention of the Legislature was declared in the case of Ex parte King, 141 Ark. 213, 217 S. W. 465, where it was said:
“The intention of the lawmakers was not to confer upon the county court the power to institute proceedings, against minors by way of criminal prosecution or punishment for alleged violations of law. The act therefore could not be construed as depriving minors • of that personal liberty guaranteed by the Constitution and trial by jury before-they can be deprived of that liberty. On the contrary, the sole purpose of this act seems to be to supply those who are ‘destitute, homeless, abandoned,’ wayward, or incorrigible, who have not yet arrived at the age where they are entitled, by the law of nature or of the State, to absolute freedom, with such environments as will conduce to their physical, moral and intellectual wellbeing. This law undertakes to reclaim and reform, rather than to condemn and punish. For these unfortunate minors who come within the terms of the act it opens the doors of an asylum, but not a jail.”
The order here under review is such a sentence as could have been imposed only after a trial before and a conviction by a jury in the circuit court, or upon a plea of guilty in that court. The juvenile court should not have sentenced petitioner to a definite term of imprisonment, as upon a conviction for a crime, as it was without jurisdiction so to do, and that judgment will therefore be quashed, and it is so ordered.
Of course the criminal proceeding begun by the deputy prosecuting attorney is not involved here. | [
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Greenhaw, J.
Petitioners are respectively the Commissioner of Labor and the Director of the Employment Security Division in the Department of Labor of the State of Arkansas. They seek a writ of prohibition restraining respondent from proceeding further in three suits filed against them in the chancery court of Bradley county by Southern Lumber Co., Inc., Bradley Lumber Company and Arkansas Wood & Paper Products Corporation, firms engaged in manufacturing and processing of lumber, and all domiciled in Bradley county.
Petitioners allege that individually and officially they are domiciled in Pulaski county, and it is their duty to administer and enforce the provisions of Act 391 of 1941, being specifically charged with the duty of collecting taxes that are and were delinquent under Act 155 of 1937 as amended by Act 200 of 1939, the collection of such delinquent taxes, if not voluntarily paid, to be enforced in accordance with § 14 (e) of Act 391 of 1941.
Their petition further recites that on August 26, 1941, the three companies aforesaid filed in the Bradley chancery court bills in equity wherein each of them sought to restrain petitioners from enforcing the above acts, and from exercising the powers and duties bestowed upon them as officers of the state of Arkansas. Summonses issued by the clerk of the Bradley chancery court, directed to the sheriff of Pulaski county, were served upon petitioners at their office in the State Capitol. On September 6,1941, petitioners filed a motion to quash the summons in each of said actions, on the ground that they were issued and served contrary to law. They also filed motions to dismiss the causes of action on the ground that the venue was not in Bradley county, because the defendants (petitioners here) are domiciled in their official capacities in the State Capitol.
On October 27, 1941, both motions were presented to the court and overruled, and petitioners were required to answer in said actions. Petitioners allege that the respondent, as judge of the Bradley chancery court, is about to proceed in said cases without authority of law, and that said court is without jurisdiction; that no legal summons has been or can be issued from said court upon said complaints, and no legal service has been or can be had on these petitioners; and that unless this court prohibits the respondent from proceeding further in said actions, petitioners will be required to litigate actions in the Bradley chancery court, which is without jurisdiction, and where the venue does not lie.
On August 21, 1941, the Director of the Employment Security Division certified to the Commissioner of Labor “Certificates of assessment of contributions levied by the Arkansas Employment Security Act” against the three companies, copies of which were mailed to the respective companies, and which recited that the director assessed said contributions against each of them for the years 1937, 1938, 1939 and 1940. Each of the certificates stated the amount claimed to ■ be due, together with penalties and interest. The certificates purported to be executed under authority of § 14 (e) of Act 391 of 1941, and contained the statement: “A copy of this assessment is being mailed or delivered to said employer and at the end of ten days thereafter said assessment shall become prima facie correct, and if the contributions are not paid within said period of ten days the amount of said delinquent contributions will be certified to the clerk of the circuit court of the county wherein the employer is domiciled, or has a place of business, to be filed, as provided by law, and thereupon an execution will be issued against such employer, and placed in the hands of the sheriff for action as by law in such cases made and provided.”
On August 25, 1941, each of these companies filed in the Bradley chancery court its complaint, asking that the assessment be canceled, and that petitioners be restrained from attempting co enforce it. The allegations of the three complaints are the same with the exception of the names of the parties and the amounts involved.
The complaints alleged that the assessment was an illegal exaction, was based upon an arbitrary estimate of wages paid by persons with whom the company had dealt as independent contractors, and was in violation of provisions of the state and federal constitutions. These companies purchase timber, but do not engage in the logging business, in severing timber or in converting it into logs. They have paid all contributions due on their employees, and the assessments levied and certified against them were based upon wages paid to employees of independent contractors by the independent contractors, who agreed at the time of the enactment of the Arkansas Unemployment Compensation Law (Act 155 of 1937, as amended by Act 200 of 1939, which was repealed by Act 391 of 1941) to pay all contributions due upon wages due their employees. Compensation to the independent contractors was increased by the companies when this law was first passed to enable them to pay the contributions due thereunder, and the threatened assessment would in most instances constitute a double assessment.
They further alleged that the assessments are not based upon wages actually paid to any of their employees, and, if collection of the assessed contributions were permitted, it would not benefit known individuals or definite employees, but most of it would go into a dummy account to the credit of unknown persons. None of the employees for whose benefit contributions are sought to be collected were ever employed by plaintiff companies, and. none were actually paid by them, nor do their names appear upon their pay rolls. Defendants undertook to ascertain the amount of compensation paid to several independent contractors by examining plaintiffs’ books with respect to acquisition of logs from the independent contractors and vendors, which estimate was made arbitrarily, unfairly, illegally, and in an excessive amount.
They allege that the amounts of the assessments were fixed prior to .July 1, 1941, when Act 391 became effective, and were based upon rules, regulations and interpretations wrongfully made of the provisions of Act 155 of 1937, as amended by Act 200 of 1939, which was repealed by Act 391 of 1941, and the assessments therefore are illegally based upon laws which no longer exist; that the assessment is not made by authority of Act 391, but is in direct violation of the express provisions of 2 (i) 5 of Act 391.
Plaintiffs invoke the provisions of § 13 of art. XVI of the constitution of Arkansas to protect themselves against the enforcement of an illegal exaction, and further invoke the ancient .jurisdiction of equity to prevent a wrongful imposition of a cloud upon their properties, and allege that said assessments, their threatened collection, and threatened cloud upon the title of their properties constitute an illegal exaction. They pleaded estoppel and the statute of limitations as a complete bar, and prayed, among other things, that the defendants be enjoined from undertaking to enforce the alleged illegal exaction.
Petitioners contend that the Bradley chancery court is without power to proceed in the cases pending there for the reasons that no court has jurisdiction to hear and decide the issues that will arise on the complaints, for they seek to substitute a court procedure for a valid, adequate statutory procedure, and there has been and can be no lawful service of process upon petitioners because the venue of a local action is in Pulaski county.
Petitioners say they have proceeded under § 14 (e) of Act 391. The first and fourth paragraphs, which they claim are pertinent to the inquiry, are as follows:
“If any person, firm or corporation shall become delinquent in the payment of any contribution or interest or penalties required to be paid by this act, it shall be the duty of the director, when the amount of such contribution, interest and penalties is determined, either by the report of the employer or by such investigations as the director may have made, to assess the contributions, interest and penalties so determined against such delinquent employer, and to certify the amount of said contributions, interest and penalties to the commissioner, and mail or otherwise deliver a copy of said assessment to the delinquent employer. At the end of ten days thereafter, said assessment shall become prima facie correct, and the director shall certify the amount of said delinquent contributions, interest and penalties to the clerk of the circuit court of the county wherein the employer is domiciled or has a place of business and it shall be the duty of the clerk to file such certificate of record and to enter the same in the record of the circuit court for judgments and decrees under the procedure prescribed for filing transcripts of judgments by §§ 8440 and 8442 of Pope’s Digest of the Statutes of Arkansas, 1937, and thereupon the said assessment shall have the force and effect of a judgment of the circuit court. Execution shall thereupon be issuable, at the request of the director, his agent or attorney, or any other employee of the Employment Security Division of the Department of Labor of the State of Arkansas, forthwith by the clerk of the circuit court, directed to the sheriff, who shall make a levy on any property, assets, or effects of the employer against whom the contribution is assessed.
“Any aggrieved employer may have a review of the action of the director in making an assessment for contributions, interest, or penalties, by filing, within ten days after the filing of such assessment with said clerk, a petition for such review in the chancery court having jurisdiction, and all actions for such review shall have precedence on the docket of the court where filed and all appeals from the action of any court on such review shall be prosecuted within thirty days after the final order of the court is made.”
They also contend that under the second paragraph of § 14 (b) of Act 391, neither the Bradley chancery court nor any other court has power to grant the relief sought in the pending suits.
Section 14 (b) of Act 391 reads in part as follows: “No suit, including an action for a declaratory judgment, shall be maintained and no writ or process shall be issued by any court of this state which has the purpose or effect of restraining, delaying, or forestalling the collection of any contributions under this act or substituting any collection procedure for those prescribed in this act.”
The respondent contends that notwithstanding the statutory procedure set out in § 14 (e) which permits aggrieved taxpayers to have the contribution assessment reviewed in the chancery court, and notwithstanding the provisions of § 14 (b), the Bradley chancery court has jurisdiction to grant the relief prayed in the three suits pending there, for the reason that the actions on the part of petitioners constitute an illegal exaction within the meaning of § 13, art. XVI, of the constitution of Arkansas, which reads as follows: “Any citizen of any county, city or town may institute suit in behalf of himself and all others interested, to protect the inhabitants thereof against the enforcement of any illegal exactions whatever. ’ ’
Respondent further insists that equity not only has the power to remove a cloud upon title, but that the Bradley chancery court has jurisdiction to prevent clouds being placed upon the title to the properties of the plaintiff companies through the filing of the assessments, which under Act 391 become judgments when filed.
Many of the questions raised in the complaints in the Bradley chancery court involve questions in controversy between the petitioners and the companies against which assessments have been levied, and are not pertinent to the issues involved in the prohibition proceedings. The questions, therefore, for this court to decide are whether the statutory procedure provided in Act 391 is the exclusive remedy afforded a taxpayer, whether the Bradley chancery court has jurisdiction, and whether Bradley county is the proper place of venue.
There is no question but that the companies against which the delinquent contribution assessments were levied had the right, under Act 391, to wait until the certificate had been filed with the circuit clerk of Bradley county and -then, within ten days thereafter, ask for a review as provided in the statute. The plaintiff companies elected to take another course for their protection. They invoked the jurisdiction of the chancery court of the county where they were domiciled, and where the alleged delinquent contributions arose. We have concluded that under, the allegations of the complaints in these cases the Bradley chancery court did have jurisdiction, and that in so far as § 14 (b) is in conflict with § 13, art. XVI of our constitution, it is invalid. .
This court has held that under this provision of our constitution a citizen and taxpayer has the right to invoke the jurisdiction of the chancery court to enjoin the collection of illegal taxes levied on his property. In the case of Green v. Jones, 164 Ark. 118, 261 S. W. 43, this court said: ‘ ‘ Section 13 of art. 16 of the Constitution of 1874 provides that any citizen of any county may institute a suit in behalf of himself and all others interested to protect the inhabitants thereof against the enforcement of any illegal exactions whatever. Under this section this court has uniformly upheld the jurisdiction of chancery courts, upon the application of citizens and taxpayers, to enjoin the collection of illegal taxes levied on their property.”
In a recent decision of this court wherein this constitutional provision was involved, the case of McCarroll, Commissioner, v. Gregory-Robinson-Speas Company, 198 Ark. 235, 129 S. W. 2d 254, 122 A. L. R. 977, the Commissioner of Revenues had notified plaintiff that “he intends to take action to collect” an alleged delinquent tax under the provisions of the Arkansas Income Tax Law, Act 118 of 1929. That act specifically prohibited recourse by the taxpayer to injunctive relief, and provided a statutory procedure for the relief of taxpayers. Pertinent parts of the act are:
‘ ‘ The collection of income taxes under this act shall not be stayed or prevented by any injunction, writ or order issued by any court; and no writ, order or process of any kind, staying or preventing the commissioner from taking any steps or proceedings in the assessment or collection of any income tax, whether the same is legally due or not, will be granted by. any court or judge; but in all cases, the person against whom any income tax shall stand charged shall be required to pay the same, and thereupon shall have his remedy as hereinafter provided. . . .
“The person so paying said taxes under protest may, at any time within 30 days thereafter but not afterwards, bring an action against the commissioner for the recovery thereof in the chancery court of Pulaski county. . . . ”
The taxpayer in that case did not wait and take the procedural route provided in. the act, but sought and obtained an injunction in the Pulaski chancery court. In that case this court said: “The constitution of the State of Arkansas contains, we think, authority for equity jurisdiction in a case of this character in § 13, art. XVI. . . . The right of any citizen or taxpayer to go into a court of equity for relief was upheld in Green v. Jones, 164. Ark. 118, 261 S. W. 43. . . .
“We are of the opinion, therefore, that an individual has the right to go into a court of equity to enjoin the enforcement of any illegal tax or exaction and that this same right inures to the corporation, appellee, in the instant case, since a corporation is a person within the meaning of the equal protection and due process clauses of the Fourteenth Amendment to the Constitution of the United States. . . .
“We, therefore, hold that the provisions of the Ar-. kansas State Income Tax Law (Act 118 of the legislative session.of 1929) which prohibit recourse by injunctive relief, are invalid as applied to appellee in the instant case and that the chancery court had jurisdiction to hear this cause and to grant the injunction.”
This court in the above case did not hold that the income tax law of 1929 was wholly unconstitutional, but was invalid in so far as it affected that portion of the income of a domestic corporation derived from business transacted from sources outside the state, and that the taxpayer had the right, under § 13, art. XVI of the constitution, to prevent the collection of the illegal tax through injunctive relief, and was not compelled to follow the statutory procedure provided in the act.
In the instant case plaintiff companies, instead of waiting and pursuing the statutory remedy provided in the act, have elected, as did the taxpayer in the GregorySpeas case, to invoke chancery jurisdiction for relief under § 13, art. XVI of the constitution, and also under the ancient, inherent jurisdiction of equity to prevent threatened invasion of property rights and placing of a cloud upon the title of their properties. It is our opinion that the Bradley chancery court had jurisdiction under the allegations of the complaints.
Petitioners further contend that if plaintiff companies have the right to proceed against them in courts of equity for injunctive relief, the venue is fixed by § 1397 of Pope’s Digest in Pulaski county, where petitioners are officially domiciled.
This contention has caused us the. most concern, hut we cannot agree that petitioners cannot be brought within' the jurisdiction of the Bradley chancery court under the service had. These are not suits against the state. Petitioners are attempting to obtain judgments against plaintiff companies which will necessarily become liens on all of their real estate in Bradley county. Not only are they attempting to obtain this judgment lien, but by the certificate they have threatened that if the alleged delinquent taxes, penalty and interest are not paid, executions will thereafter be issued and levied upon the properties of these companies. If petitioners had not been stopped by the temporary injunction, they would have proceeded against properties of the plaintiff companies in Bradley county. We do not think that § 1397 of Pope’s Digest prevents the exercise of jurisdiction by the Bradley chancery court, nor denies it the power to draw petitioners within its jurisdiction to grant the relief prayed for, under the allegations of the complaints.
Section 14 (e) of Act 391 has this provision: “Any aggrieved employer may have a review of the action of the director in making an assessment for contributions, interest, or penalties, by filing, within ten days after the filing of such assessment with said clerk, a petition for such review in the chancery court having jurisdiction, . . (Italics supplied.)
Whether it was or was not the intention of the Legislature to give the Pulaski chancery court exclusive jurisdiction in reviewing the actions of the director need not be determined in this ease, nor do we determine whether the Legislature had such power. The act fixed the venue “in the chancery court having jurisdiction,” and this, in our opinion, shows an intent that any chancery court in the state should have jurisdiction to review the acts of the director, depending upon the facts in each case.
If plaintiff companies had elected to wait until the assessment had been filed with the circuit clerk of Bradley county to have the resulting judgments reviewed under Act 391, petitioners would necessarily have been drawn into the jurisdiction of the Bradley chancery court, regardless of their official positions and domicile in Pulaski county.
It follows that venue is in Bradley county, where suits were instituted to prevent filing of the assessments and the resulting .judgments, liens and clouds on the titles of properties of respective companies.
We think the following statement from the case of Drinkhouse v. Spring Valley Water Works, 80 Cal. 308, 22 Pac. 352, cited with approval in the case of Cox v. Railway Company, 55 Ark. 454, 18 S. W. 630, is applicable: “The injury is the same, whether threatened or completed, and the privilege accorded to the plaintiff to prevent the injury by injunction ought not to be held to give him the right to have the trial in a county where the cause would not have been triable if he had waited the completion of the injury before seeking redress.”
Petitioners cannot be permitted to proceed in a course of action which will, if not prevented, result in a judgment and cloud upon the title to the real estate of plaintiffs in Bradley county, and then be heard to say that even though they are attempting to do this they are not subject to the jurisdiction of the Bradley chancery court, and can be sued only in Pulaski county.
The venue being in Bradley county, the summonses issued from that court and service thereof were valid under Act 21 of 1941, providing for state-wide service of process in. local actions.
Having concluded that the Bradley chancery court had jurisdiction over the subject-matter and over the parties in the eases before it, the petition for writ of prohibition is denied. | [
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McHaney, J.
In his lifetime, and on the 6th day of June, 1924, Carl Bogers executed the following typewritten instrument as and for his last will and testament:
“Missouri Pacific Bailroad Company.
“I, Carl Bogers, of the city of Arkadelphia, county of Clark, State of Arkansas, being of .sound mind, memory, and understanding, do make and declare the following as my last will and testament, that is to say:
“(1) I hereby revoke, lall wills, codicils, or testamentary instruments by me at any time heretofore made. (2) I direct that my funeral expenses and just debts be paid as soon after my death as may be practicable. (3) I give and bequeath to my brother, Tracy Rogers, all my earthly possessions at my death, he being made administrator. (4) My last will is there be no division or deviation from this testament.
“In witness whereof I have hereunto set my hand and seal at the Merchants’ & Planters’ Bank of Arkadelphia, Arkansas, this sixth day of June, in the year one thousand nine hundred and twenty-four.
(Signed) “Carl Rogers.
“Witness R. J. Dougun. ”
Thereafter, on September 15, 1926, he executed the following instrument as a supplement or codicil to the foregoing typewritten will, same being entirely in his own handwriting:
“Arkadelphia, .Ark., 9-15-26.
“This document will serve as a supplement to my last will and testament.
“It is my will that Sam Rogers (brother) shall occupy building on Seventh Street, which he now occupies, as long as he lives, with the following provisions, if Tracy Rogers (brother), the lawful owner of the building, continues to make his home with Sam Rogers. (2) If any difference arises between my brothers above mentioned, said Sam Rogers shall pay Tracy Rogers $15 per month rent, after Tracy Rogers has removed from the home of Sam Rogers.
“It is further willed that Sam Rogers have my shotgun, and my sister, Mrs. Agricola, my diamond pin.
“I herewith will one dollar ($1) to each of my brothers, namely, W. Y. Rogers, S. B. Rogers, J. D. Rogers, Ben Rogers, also one dollar ($1) to each of my sisters, Mrs. L. E. Agricola and Mrs. Ruth Yarbrough.
“All my debts and funeral expenses shall be paid before any final settlement made with benefactor.
■ (Signed) “Carl Rogers.”
“9-15-26.”
Carl Rogers, on the 27th day of November, 1926, died, and thereafter, on the 10th day of December, 1926, said two instruments above copied were filed in the probate court of Clark County for probate, land on the 19th of January, 1927, the probate court made an order admitting them to probate and declaring them to constitute the last will and testament of the said Carl Rogers. An appeal was prayed and prosecuted by the appellees, as contestants, to the circuit court, where the case was submitted to the court on the following agreed statement of facts:
“The two instruments filed for probate and the statement of facts below and in the four following sheets constituted the agreed statement of facts, on which the cause is submitted. Carl Rogers (deceased) was born and reared and lived all of his life at Arkadelphia, and died on the 27th day of November, 1926, at the age of thirty-eight years. 'Seven brothers and sisters and one niece (daughter of brother) survived him. They are W. Y. Rogers, 54 years old; Sam B. Rogers, 47 years old; Mrs. Ruth Yarborough, 30 years old, and Tracy Rogers, his beneficiary, 35 years old; and the contestants, Mrs. Elmer Agricola, 42 years old; Jess Rogers, 45 years old; Ben Rogers, 33 years old, and Mrs. Jodie Cobb, '26 years old. All of these brothers and sisters are able-bodied, capable men land women, and all are in reasonably prosperous circumstances, except Tracy Rogers, the beneficiary. Tracy Rogers, at the age o.f three years, by accident, broke one of his legs; infection set up, and it became necessary to and it was amputated by physicians. Due to the injury and amputation of the one, the other leg became paralyzed, and from that time to the present he has been unable to walk. For a long number of years, after his affliction, he could only get about by crawling on his hands, and using the lower part of his body. After he reached the lage of about fifteen years he was able to get about some by the use of crutches, and his condition in that respect has remained and is now the same. He owned no property, had no income, and has no employment.
“Carl Rogers (deceased) was from infancy strong, able-bodied and energetic. Until about a year before his death he was an unusually strong, healthy, robust man, over six feet in height, and of good personal appearance. He was three years older than his beneficiary, Tracy Rogers, and in the infancy of both he began caring for, helping, guarding and protecting his crippled brother, Tracy, and this care for Tracy continued until Carl died.
“His father died when Carl was about 17 years of age, and left his mother and Tracy and two younger children than he was. The other children, older, had married. Carl continued to live with his mother, and, at the age of seventeen, began and became the principal means of support for the mother and younger children. This continued until his mother died. On her deathbed she asked and Carl promised that he would always take Care of and protect Tracy. The other children married and found homes elsewhere, and Carl continued unmarried in the care, support and protection of Tracy.
“For some time before his death Carl owned the brick building which Sam B. Rogers, his brother, occupies and in which he runs a barber shop. The agreed amount for rent on this shop between Carl and Sam was $15 per month, and in lieu of Sam’s paying the rent to Carl, there was an agreement between Carl and Sam that Sam Rogers would furnish board land room to Tracy Rogers and would accept as pay therefor the $15 rental for the barber shop. This arrangement had been in force and had been followed for some time before Carl’s death. This was the only business building that Carl owned.
“Carl Rogers was a good business man, a good trader, and saved money. For some years before his death he had been in the employ of the Missouri Pacific Railroad Company in various capacities, as clerk, assistant station agent, and, at the time of his death and for some three or four years prior thereto, he was cashier for the Missouri Pacific Railroad Company at its Arkadelphia .station, and had an office in the freight depot, and, in writing* letters and statements, used a typewriter. He had continued all along through the years to support and care for and look after the welfare of his brother Tracy, and, for some time prior to the 6th day of June, 1924, repeatedly stated to Tracy and to his brothers, W. Y. Rogers and S'am B. Rogers, and to close friends and others, that he intended to continue to take care of Tracy and that he intended to make a will so that, in the event of his death, Tracy would have his. property.
“On the 6th day of June, 1924, Carl Rogers had in his possession the typewritten instrument which is in evidence here and offered for probate. Just after the typewritten instrument had been written he. stated to friends and co-employees in the office with him, that he had made his will, and was giving all his property to his brother Tracy. He then went with the instrument to the office of his brother, W. Y. Rogers, in Arkadelphia, showed it to him, and told this brother that he was going to execute it and place it in a safety box at the Merchants’ & Planters’ Bank, so that, in the event of his death, the - will would be there, and Tracy would be taken care of.
“He went to the Merchants’ & Planters’ Bank with the instrument, and there signed his name to it, with a pen, and the then cashier of the Merchants’ & Planters’ Bank & Trust Company, R. J. -Dougan, signed it with, a pen as a witness. The signature to this typewritten instrument is in the handwriting of Carl Rogers (deceased), and the name R. J. Dougan is signed in the handwriting of R. J. Dougan.
“At that time and since that time, up to and after the time of his death, Carl Rogers and his brother Sam B. Rogers, together, used one of the safety lock-boxes in the vault of the Merchants’ & Planters’ Bank & Trust Company. Both kept their'valuable papers in that box. Sam B. Rogers kept and carried the key to the box. Carl, after he had signed the instrument, and -the witness Dougan had signed it, showed it to Sam B. Rogers, and stated to him that he wanted to put it in the lock-box there and to keep it there. This instrument was then placed in that lock-box at the Merchants’ & Planters’ Bank & Trust Company, continued to remain there until a day or two after Carl’s death, when .Sam B. Rogers opened the box, and handed the instrument to the beneficiary, Tracy Rogers.
“In the spring of 1926 Carl Rogers became afflicted with some internal stomach or bowel trouble, and, while he. continued at his work mo.st of the time, it gave him a great deal of trouble and caused him a great deal of worry. This trouble continued until the latter part of the summer of 1926, when it became necessary for him to go to a hospital and have an operation. During this time he often expressed to his brothers and friends doubt as to his being able to overcome the affliction, and repeatedly, at such times, would add that he had made a will so that his brother Tracy would get his property.
“For some months prior to his death he had a room in the house of his sister, Mrs. Elmer Agricola, one of the contestants, and after his death the instrument which is in evidence here, and which has been probated in the Clark Probate Court, and which is entirely in the handwriting of Carl Rogers (that is, the entire body and all of the instrument, as well as the signature and the dates, are in his handwriting and the fact that it is entirely in the handwriting of 'Carl Rogers [deceased] has been established 'by the unimpeachable evidence of more than three disinterested witnesses), and which is dated ‘9-15-26,’ was there in his room, and within a few days after his death was delivered by Mrs. Elmer Agricola to Sam B. Rogers.
“About the date of this instrument — that is, September 15, 1926, land just after, and repeatedly thereafter at various times, Carl told Tracy Rogers and Ms other brothers that he had written and signed this codicil, or supplement, to his will, which was in the lock-box at the bank, and this instrument.was in Ms room.
“Just a short while before his death he realized that he wlas not going to recover, and again told his brothers, Sam B. and W. V. Rogers, and his beneficiary, Tracy Rogers, of Ms having written and signed this supplement to his will and where it would be found.
“Ben W. Rogers, one of the contestants, is also a cripple, having had one of his hands cut off. ’ ’
On a hearing the circuit court decided that these two instruments were not executed las required by law, so as to constitute a will, and should not ‘ have been admitted to probate as such by the probate court of Clark County, and entered a judgment rejecting them, and reversing the order of the probate court. From this judgmeiit Tracy Rogers has appealed to this court.
It is ladmitted by appellant that the typewritten instrument purporting to be the last will and testament of Carl Rogers was ineffectual as a will, for the reason. that it was not attested by two witnesses, and did not therefore meet the requirements of the statute. It is furthermore agreed that the second of the above instruments is wholly in the handwriting of the testator. If the first instrument, the typewritten will, had been properly attested, there could be no question about the second instrument, wholly in the handwriting of the testator, being a good holographic codicil to the will. See § 10494, C. & M. Digest, 5th subdivision.
The testator called the instrument in his handwriting a supplement to his will. “This document will, serve as a supplement to my last will and testament. ’ ’ This instrument therefore can be nothing more thlan a codicil to his former will, and, while the former instrument, strictly speaking, cannot be called a will, lacking the necessary witnesses, yet it is an instrument testamentary in form, and if the codicil dated September 15, 1926, sufficiently identifies it by reference thereto, we must treat it as incorporated therein and republished las of the date of the codicil.
As stated by this court in Gibbons v. Ward, 115 Ark. 184, 171 S. W. 90: “A codicil is in legal effect a republication of the will, and the whole is to be construed together as if executed at the date of the codicil. ’ ’
And in 40 Cyc. 1215, it is said:
“As a general'rule, revival or -republication brings the will down to the date of the repnbliciation, and makes it speak as of that time.”
And on page 1216 of Cyc., with reference to invalid wills, it is isaid:
“By the weight of authority a codicil duly executed will operate as a republication of an earlier will, although the latter is inoperative or imperfectly executed or attested.”
That is exactly the situation here. The original will being invalid on account of being imperfectly attested, but the codicil being a good holographic instrument, executed in accordance with the statute relating to holographic wills, operates as a republication of the original will, although imperfectly executed, and the two are to be regarded as being one instrument, speaking from the date of the codicil. This was the question before the Supreme Court of Missouri in Harvey v. Choteau, 14 Mo. 587, 55 Am. Dec. 120, where there was an invalid will for the reason that it did not comply with the requirements of the statute, and a codicil executed later that did meet the requirements thereof. The court said :
“Will the proof of this codicil establish the will? Can an unattested will be set up and republished by a codicil not physically annexed' to the will, but which is attested by a sufficient number of witnesses required by law to prove a will1? These are questions of weighty import, and have demanded our patient consideration.”
'The court, after citing* eminent authority in support thereof, including Judge Story and Chancellor Kent, said:
“Here, .then, is a very respectable authority, that ‘reference’ is sufficient. I confess I see no good reason why it should not be. In cases like the present, the question of identity may sometimes arise: Is this the will referred to ? But this can always be settled -by the facts in proof.
“I am therefore free to declare that I can see no legitimate reason why a properly attested codicil may not draw down to it a previously made, though unattested, will, to which the codicil refers, upon its face, though not annexed by wafers or any other mode physically.”
The holding in O’Leary v. Lane, 149 Ark. 393, 232 S. W. 432, was to the effect that deeds referred to in the will were not sufficiently identified by .the will itself to effect a conveyance of the real estate described in the deeds. This was all the court decided in that case. The language in the will, which referred to certain deeds purporting to convey certain property to his heirs, was, “which property I give and bequeath to each of said heirs as conveyed in said deeds.” The court then said:
“This language refers to deeds in the testator's safety deposit box in the Farmers’ & Merchants’ Bank of Des Arc, Arkansas, at the time the will was executed, and, if the instrument referred to is sufficiently identified, the language quoted was sufficient to effect a conveyance of the real estate.” ■
The court then goes on to hold that the deeds were not sufficiently identified by the will. The court further said in .this case that “there could be no objection, however, in devises of real estate, if the language of the will itself is sufficient to effect a conveyance of the lands, to refer to an extraneous instrument for the description merely, if the will sufficiently designates the extraneous instrument so as to certainly identify it.”
In the codicil of the will now under consideration the testator refers to his former will, and sufficiently identifies the real estate as the building on Seventh Street, which Sam Rogers then occupied, and of which .Triacy Rogers was the then owner. It is not stated in the agreed statement of facts that he owned any other real estate, and' the reference to the real estate in the valid codicil is sufficiently definite to determine its location. The former will, which was not properly attested, is sufficiently referred to as to identify it as a part of his whole will. It is not shown that he made any other will at any time, and it is not questioned that he signed this former document, believing it to be his will. The whole thought of 'Carl Bogers seemed to be to take care of his totally helpless, crippled brother.
We are of the opinion therefore that the two instruments constituted the will of Carl Bogers, and that the circuit court erred in setting aside' the judgment of the probate court admitting same to probate. The judgment is therefore reversed, land remanded with directions to enter a judgment sustaining the probate of said will. It is so ordered. | [
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McHaney, J.
Appellants were indicted, tried, convicted and sentenced to one year each in the penitentiary on a charge of unlawfully making and fermenting mash fit for distillation. They prosecute this appeal to reverse the judgment on the sole issue that the evidence is insufficient to support the verdict.
The rule of law governing this court on this assignment of error is that, if there is any substantial testimony tending to support the verdict, the judgment of conviction will not be set aside, for the reason that the guilt or innocence of the defendants is purely a question of fact for the determination of the jury. If, however, this court finds that there is no substantial evidence tending to connect the defendants with the commission of the crime, or if the evidence in this regard is purely speculative or conjectural, then it is the duty of this court to set aside the verdict. Hogan v. State, 170 Ark. 1145, 282 S. W. 984; Cook v. State, 173 Ark. 711, 293 S. W. 32; Holford v. State, 173 Ark. 998, 294 S. W. 33.
The evidence on behalf of the State, briefly stated, is that the officers had information that a still was being operated in the vicinity of the residence of the appellants, and, acting upon such information, they went into that locality and made a search. They found a still located from a half to one mile north of George Yeager’s residence, and two large vats of mash. It had rained recently, and the officers found wagon tracks leading from the still into George Yeager’s lot. They followed this wagon track from the still right in behind George’s residence, where they found a wagon with a 3%-inch tire on it, which one of the officers said looked like the wagon that had made the trip to the still. Another road or trail led from George Yeager’s house east through his field into a ravine, where a still-site was found. A vat was also found at the still-site containing a quantity of mash fit for distillation. Apparently the still had been moved, or was in the process of being removed, from the site east of the house to the place where it was found north of the house, and apparently the mash was being transported from the old to the new still, as the officers found mash scattered along the road where it had spilled from the containers while being transported, and this condi tion existed right up to George Yeager’s house. Two of the officers saw Ben Yeager and George in the field back of George’s house, Ben being on the inside and George on the outside of the fence, and Ben was.handing whiskey over the fence to George in half-gallon containers. They halloed at them, and George ran away. The officers found some broken half-gallon containers of moonshine whiskey, and they found Ben with a half-gallon still unbroken. These are substantially all'the facts that tend to connect either of them with the unlawful possession of mash fit for distillation.
Under this state of the record, we are of the opinion that the evidence was sufficient to go to the jury on the question of the guilt or innocence of George Yeager, but was insufficient as to Ben. Ben lived with his brother Gus a mile and a half to the southwest of George’s place, and the only evidence in the record tending to connect him with any offense was. the fact that he was handing liquor over the fence to George. This might have been sufficient on a charge of possessing and transporting, but certainly was insufficient to show that he ever had anything to do with the making or possessing of the mash for which he was indicted. While it may be true, as the jury has found, that Ben is. equally guilty with George on the charge against him, yet there is no substantial testimony in the record to show that he was guilty. The jury, in order to convict him, would have to deal purely with speculation and conjecture, which are insufficient in law to justify a conviction.
The judgment of conviction as to George Yeager will therefore be affirmed, and as to Ben Yeager.it will be reversed, and remanded for a new trial. | [
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Mehaffy, J.
The plaintiff, an attorney at law, practicing in the courts of Arkansas, brought suit against the appellant, the Federal Land Bank of St. Louis, alleging that, at the special instance and request of the Federal Land Bank, he rendered legal services by representing the bank in the institution and prosecution of certain foreclosure suits in the chancery court of Osceola District of Mississippi County, Arkansas, naming the suits which he broug’ht and prosecuted, and alleging that large and valuable tracts of real estate were involved, said real estate being'of the market value of $20,000. That he diligently looked after the prosecution of said suits, prepared and filed all papers and legal documents in connection with said suits, and in general looked after and attended to all the matters pertaining to said foreclosures, and that his services were of the value of $1,000‘, and that the bank refused to pay the same.
It was further alleged that Tolbert Poole was indebted to the Federal Land Bank, and had goods, moneys or chattels in his hands belonging to said bank. He asked for judgment against the bank, and that Poole be required to answer, etc.
The complaint was accompanied by an affidavit of appellee, stating that appellant was a foreign corporation; warning order was issued, and an attorney ad litem appointed.
The appellant filed a motion to quash the service and dismiss the suit, appearing solely for that purpose, and, as a reason for said motion, stated that the appellant is a corporation organized and existing .under and by virtue of an act of Congress of the United States, approved July 17, 1916; that its domicile and principal place of business is in the city of St. Louis, Missouri; that it had no place of business in Arkansas, and no agent in said State upon whom' service might he had; that the chief officers resided in St. Louis, Missouri, the domicile of the bank, and that it had been a resident of the city of St. Louis continuously since the commencement of this action, and that service had not.been had upon the chief officers of said corporation or any other officers thereof, or upon any duly authorized agent or employee: •It was further alleged that appellant was not a domestic or foreign corporation, but a local corporation organized and existing under and by virtue of the act of Congress, from which it derives its powers to transact business. It alleged that it was not such a corporation as that service of process could be had by a warning order.
The bank, by agreement, entered its special and limited appearance solely and for the only purpose of hearing on its motion to dismiss the suit.
Thereafter the bank, reasserting that it had never been legally served, and insisting upon its motion to quash service, filed an answer under protest, admitting that appellee represented it as its attorney in certain foreclosure suits, but stated there was an agreement or contract entered into whereby appellee was to represent appellant in certain foreclosure suits in Mississippi County for a fee of $25 in each and every case submitted to him. That, in the two suits mentioned by appellee, it tendered him the sum of $50 as his fee for the services rendered. Denies that it is indebted to him in the sum of $1,000, or in any sum in excess of $50.
It is alleged in the answer that no services of any kind were rendered except as stated in the answer, and that the sum of $50 was to be in full payment of services in these cases.
Defendant then filed a cross-complaint or counterclaim, alleging that the services were unsatisfactory, and the decree or record failed to establish the rights of the bank; that said decree was so carelessly, improperly and imperfectly drawn that it was necessary, in order to protect the rights and interests of the complainant in said cause, to engage in further prosecution in said cause to correct the errors, imperfections, etc. That plaintiff’s services were of no value, and appellant had to employ additional counsel. That it was damaged by reason of appellee’s carelessness, and entitled to recover the sumuf $150 as damages.
Defendant filed answer to cross-complaint, and denied the material allegations, and thereafter appellant filed an amendment'to its motions to quash service.
We deem it unnecessary to set out at greater length the pleadings in the case. There was testimony taken on the part of each of the parties tending to show the value of the services performed or what would be a reasonable fee for the services performed, and on this issue the testimony was in conflict.
The appellee testified about the services performed and the value of said services, and introduced a letter written to him by the St. Louis attorney of the bank, in which it was stated that the usual terms in cases of the kind mentioned was $25. The appellee responded to this letter, stating that he would attend to the matter for the fee indicated. There was some correspondence about the other case, and numerous other letters and correspondence introduced by both parties.
The appellant admitted that appellee had performed certain services not included or contemplated in the original contract, and appellee testified that a reasonable fee in the two cases would be from $600 to $650. Correspondence was introduced showing that appellee had presented a bill for the service in the two cases for $350.
The cause was submitted to the court sitting as a jury, and the court, after having* heard the evidence and argument of counsel, found for the appellee in the sum of $600, and judgment was rendered for $600, from which this appeal is prosecuted.
Appellant filed motion for a new trial, alleging nine grounds or reasons for a new trial. We think it unnecessary to set out the motion for new trial at length.
The important question is whether or not the appellant is in court. If the court had no jurisdiction over the person of appellant, this, of course, would end the case, and there would be no reason to discuss or decide the other questions. The appellant contends that it did not, by its motion to quash service and dismiss suit and its answer and counterclaim, submit itself to the jurisdiction of the court, and calls attention to the statement in E. C. L., which holds, in effect, that the prevailing rule that, in a proceeding by which jurisdiction over the person of the defendant is to be obtained, is in no case waived by the appearance of the defendant for the' purpose of calling the attention of the court to such irregularities, nor is the objection waived when, being urged, it is overruled, and the defendant is thereby compelled to answer. It is only when he pleads to the merits in the first instance, without insisting upon the illegality, that the objection is deemed to be waived. 2 R. C. L., p. 339.
Appellant cites several other cases supporting the text, and again quotes from E. O. L. as follows:
“Where a defendant raised jurisdictional objections in the lower court, and takes an appeal for the sole purpose of having the rulings on such objection reviewed in the appellate court, his appearance in the latter court will not be considered as a waiver of such objection.” Citing 4 C. J. 1347, and other authorities.
If the appellant had done no more than is mentioned in the above authorities, we would have a different question, but it is unnecessary to decide whether these acts would amount to a waiver of his objection. ' But it not only filed an answer, it filed a counterclaim or cross-complaint, asking for affirmative relief. In addition to this, it entered into an agreement that, the suit should be tried at Blytheville, Arkansas, before W. W. Bandy, Judge, and fixing the date of the trial.
To be sure, in the last agreement referred to it is still insisted ’that it had not been properly served. But one cannot come into court, assert a claim, ask the court for affirmative relief, and then, when there is an adverse .judgment, claim that the court had no jurisdiction over his person. If this could be done, the appellant would have the opportunity and advantage of prosecuting- its claim and, in ease it recovered judgment, it could collect, and at the same time take no chances of a judgment against itself.
“Broadly stated, any action on the part of the defendant, except to object to the jurisdiction over his person, which recognized the case as in court, will constitute a general appearance.” 4 C. J. 1333.
A court acquires jurisdiction over the person of a plaintiff whenever the plaintiff appears and invokes the power or action of the court in any manner, and when the defendant voluntarily appears in any case and, without objection, proceeds, the court thereby acquires jurisdiction over his person, whether any summons was issued or served or not.
This court has recently said: “While a suit upon the note and upon the contract of sale are entirely separate and distinct causes of action, the effect of defendant’s answering the complaint and defending the action entered its appearance.” Purnell v. Nichol, 173 Ark. 496, 292 S. W. 686.
In the same section in R. C. L. as that quoted and relied on by appellant is the following statement:
“On the other hand, there are numerous oases in which the defendant has been held to waive any question of jurisdiction over his person by taking some step to contest the cause upon the merits after his motion on special appearance has been overruled. One seeking to take advantage of want of jurisdiction in every such case must, according to these decisions, object on that ground alone. He must keep out of court for every other purpose. If he goes in for any purpose incompatible with the supposition that the court has no power or jurisdiction on account of defective service of process upon him, he goes in and submits for all the purposes of personal jurisdiction with respect to himself, and cannot afforwards be heard to make objection.” 2 R. C. L., 340.
In this case the appellant not only pleaded to the merits and participated in the trial, bnt filed a counterclaim and asked for a .judgment against the appellee. Its position now is that it is in court if it wins and not in court if it loses.
“A defendant appearing specially to object to the jurisdiction of the court must, as a general rule, keep out of court for all other purposes. In other words, he must limit his appearance to that particular question or he will be held to have appeared generally and to have waived his objection. If he takes any step consistent with the hypothesis that the court has jurisdiction of the cause and the person; such special appearance is converted into a general one, whether it is limited in its terms to a special purpose or not.” 4 C. J. 1319.
“We are also of the opinion that, when the defendant Maitland made answer setting up various counterclaims, demanding judgment thereon, he thereby voluntarily submitted his person to the jurisdiction of the court for all intents and purposes as fully and completely and with the same force and effect as if the summons had been duly and personally served upon him within this State. * * * We are also of the opinion that the defendant, the Penobscot Mining 'Company, voluntarily submitted to the jurisdiction of the court by similar methods and acts as defendant Maitland, and that the court had jurisdiction over the persons of both appealing defendants for the' purposes of rendering the judgment from which the appeal is taken. ’ ’ Rogers v. Penobscot Mining Co., 28 S. D. 72, 132 N. W. 792, Ann. Cases 1914A, 1184.
In a note to the above case is the following:
“The test as to whether an appearance is special or general is, the court says, the relief asked. It is special if it is made for the sole purpose of objecting to the jurisdiction of the court over the person of the defendant. It is general if the defendant invokes the judgment of the court, in any manner, on any question other .than that of .jurisdiction of the court, or in resistance to the cause of action he is called on by the plaintiff and the rulings of the court involuntarily to defend.”
Appellant recites and relies on the case of Seelbinder v. Witherspoon, 124 Ark. 331, 187 8. W. 325, and quotes extensively from that case. That suit was brought and service had in a county other than the one where the suit was pending, under a statute authorizing service in such cases. That provides simply where a single defendant lives in the county and service is had on him, the summons may be served on other defendants in other counties. But it expressly provides that the plaintiff shall not be entitled to judgment against any of them on service of summons in another county than that in which the action is brought, where no one of the defendants is summoned in that county or resided therein at the commencement of the action, or where, if any of them resided or were summoned in that county, the action is discontinued or dismissed as to them, or judgment therein is rendered in their favor, unless the defendant summoned in another county, having appeared in the action, failed to object before the judgment to its proceeding against him.
The law expressly authorized the defendant served in another county to make his defense, provided he objects to the service and states the reason for it. That was what was done in the Seelbinder v. Witherspoon case. He objected to being put on trial because he was not served in the county. The other defendant, Seelbinder, was personally served with summons, and filed an answer, denying liability. When the case was called for trial in the circuit court, all the parties announced ready for trial, whereupon, before any evidence was offered, appellee asked and obtained permission to take a nonsuit as to Plugo Seelbinder, and the cause was dismissed as to him. The defendant then immediately renewed his objections to the cause proceeding, and it proceeded over his objections. And, before judgment, defendant objected to judgment being entered against him. This is the procedure pointed cut by the statute in cases of that kind, and, no matter what his pleading had been up to that time, as soon as a nonsuit was taken as to the person served in the county, or if a verdict was rendered in favor of the person served in the county, then, in either event, the defendant served without the county would be entitled to a judgment in< his favor.
And the court expressly states in the case relied on: “The authority for this suit against appellant as a resident of Crawford County, where he was served with process, in the courts of Sebastian County, is found in § 6074 of Kirby’s Digest.” That section is now § 1178 of Crawford & Moses’ Digest. The court further said, quoting from a former decision Wernimont v. State, 101 Ark. 219, 142 S. W. 194, 198, Ann. Cas. 1913D, 1156 :
“It is the policy and spirit of our law, enacted into statute by our Legislature, that every defendant shall be sued in the township or county of his residence. To this general principle there are statutory exceptions, chiefly in cases where there, is a joint liability against two or more defendants residing in different counties. In such cases it is provided that suits may be brought in the county of the residence of any of the defendants, and service of summons can then be had upon the other defendants in any county, thereby giving .jurisdiction over their persons to the court wherein the suit is.thus instituted. But, before this jurisdiction can be acquired, by virtue of these statutes, over the person of such defendants, nonresident of the county wherein the suit is instituted, it is éssential that the defendant resident of the county where the suit is brought shall be a bona fide defendant. By our statute it is further provided that, before judgment can be had against such nonresident defendants, a judgment must be obtained against the resident defendant.”
It will therefore be seen that the case of Seelbinder v. Witherspoon has no application.
In the other case referred to, Barry v. Armstrong, 161 Ark. 314, 256 S. W. 65, the court simply said:
“It is first contended that the court erred in ref ns ing to quash the service, but we must treat the motion to quash as having’ been waived by reason of the fact that appellants, without preserving their rights in that respect by an express reservation in their subsequent pleading’s, filed an answer as well as a cross-complaint, thus voluntarily submitting* to the jurisdiction of the court. This constituted a waiver, and it is too late now to raise the question of insufficiency of the service, or fraud in procuring the service. ’ ’
The only point decided in the last case quoted from is that, when one files an answer or counterclaim without preserving his objections, he waives the defective service. But the point involved here was not considered in that case at all.
Another case to which attention is called is Spratley v. Louisiana & Arkansas Ry. Co., 77 Ark. 412, 95 S. W. 776. In that case the court said:
“We held that, under the Code of Practice, a plea in abatement that the court has no jurisdiction of defendant’s person for want of proper service is not waived by pleading in bar to the complaint, nor by appealing from an adverse judgment. There is no doubt but that, where a party who has not been served with summons, answers, consents to a continuance, goes to trial, takes an appeal, or does any other substantial act in a cause, such party by such act will be deemed to have entered his appearance.”
It is true that the court said that, where a party objects, this does not apply. Where he preserves his protest he cannot be said to have waived his objection. But certainly he cannot go into court and ask affirmative relief and enter into the stipulations entered into in this case, without entering a general appearance. Greer v. Vaughan, 96 Ark. 524, 132 S. W. 456.
The case of Dunbar v. Bourland, 88 Ark. 153, 114 S. W. 467, has no application.
Appellant also calls attention to the case of Automatic Weighing Co. v. Carter, 95 Ark. 118, 128 S. W. 557. That case does not touch the question involved here.
The appellant in this case, by filing a counterclaim and asking for affirmative relief, asking the court to give it judgment, thereby enters its appearance and waives any defect there might be in the service, or any failure to get proper service, if there was such failure. In other words, the defendant, by filing a counterclaim and asking affirmative relief in the court, thereby subjected itself to the jurisdiction of the court, whether it had been served at all or not.
It is also contended by the appellant that the appellee is not entitled to any recovery above the amount stated in his account or bill presented.
The appellee was employed, first, under contract fixing the compensation for his services, but the evidence shows that he performed some services not included in the original contract, for which, of course, he was entitled to additional compensation. However, after the completion of the work, he presented a bill to appellant for $350! for h'is fee in both cases, and this, we think, fixed the amount of the fee at what he thought it should be.
There is some conflict in the testimony of other witnesses about the value of the services or the amount of a reasonable fee, but we think the testimony conclusively shows that the $350 fee is proper compensation for the services performed by appellee.
Holding as we do that the filing of the counterclaim and action of appellant entered its appearance, it becomes unnecessary to decide the other questions discussed by learned counsel.
The judgment of the circuit court will therefore be modified, and judgment entered here for appellee for $350. It is so ordered. | [
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McHaney, J.
This action was instituted by appellant against appellee, by which it sought to cancel a timber deed executed by appellant to appellee in June, 1910, conveying all the merchantable pine timber then standing on the lands described in the complaint, which gave the appellee twenty years within which to remove the timber from the land. The principal complaint appellant makes is to this clause in the deed, which gives twenty years to remove the timber, although complaint is made of a number of other clauses in the deed, appellant claiming that the agreement between him and Mr. J. H. Murray, agent of appellee, who purchased the timber from appellant, was that the timber was to be removed within three years, and that the price was agreed upon on that basis. Appellant says that he would not have executed the deed if he had known that the twenty-year clause was contained therein, and that he did not know of the other clauses of which he complains, being in the deed, nor would he have signed same with them in it if he had known it. Appellant is an unlettered person, who cannot read or write. Some time in 1913 or 1914, after the death of Mr. Murray, appellant says he had a conversation with Mr. Fred Leeper, who had succeeded to the position of Mr. Murray after his- death, in which Leeper stated, in substance, that the time was out for them to cut the timber on appellant’s land, and that they wanted to buy it again. On a trial of the case, the court entered a decree dismissing the plaintiff’s complaint for want of equity, and in the course of its opinion the court said: “Again, the record shows that ten'years ago plaintiff was fully advised of the instrument, its duration and terms, yet he serenely sat by for his own memory to fade and the evidence of other witnesses to get beyond the reach .of the courts before bringing this suit. As I view the record in this, case it would be extremely inequitable to permit plaintiff to profit by Ms own negligence.”
From this decree appellant brings the case here for review.
It is well settled under the former decisions of this court that equity has jurisdiction to cancel or reform written instruments, either where there is a mutual mistake or where there has been a mistake of one party, accompanied by fraud or other inequitable conduct of the other party, but, before it will do so, there must be something more than a mere preponderance of the evidence. It has been uniformly held under such circumstances that the proof must be clear, unequivocal and convincing. American Alliance Insurance Co. v. Paul, 173 Ark. 960, 294 S. W. 58; Welch v. Welch, 132 Ark. 227, 200 S. W. 139. Under this rule we agree with the chancery court that the evidence does not rise to that degree of certainty that would justify a cancellation of the deed in question. Moreover, as heretofore stated, appellant knew, for a period óf ten years or more, what the exact terms of this deed were, and took no affirmative action to cancel same. The party with whom appellant made his trade has long since been dead and is unable to either affirm or deny appellant’s statements. We think it is well settled by the former decisions of this court, as said in the case of New York Life Insurance Co. v. Adams, 151 Ark. 123, 235 S. W. 412, that “one induced by misrepresentations to enter into a contract must, within a reasonable time, take advantage of his right to rescind.” His deed was dated June 11,1910. He was fully advised by Mr. V. L. Massey, acting for appellee, of the terms of the deed in 1916, and he waited until May 10, 1926, to institute this action. We therefore hold that appellant was guilty of such laches as bars his right to maintain' this ■ action. The decree of the chancery court is therefore correct, and it is in all things affirmed. | [
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Humphreys, J.
This suit was instituted in the chancery court of Little River County by appellant to recover a judgment upon a note executed by appellee, John P. Wright, and indorsed by the Little River National Farm Loan Association of Ashdown, and to foreclose a mortgage executed by Wright and his wife upon 628 acres of land in said county to secure same. In addition to setting out the note and mortgage and alleging the breaches thereof, entitling appellant to a judgment for the balance due upon said note and a decree of foreclosure and order of sale of the land to apply upon the judgment, it was alleged that, by reason of Wright’s failure to pay' the State, county and road improvement district taxes for a number of yeárs, the value of the mortgaged lands had decreased until not worth exceeding $1,500, leaving a large deficit between the indebtedness due and the value of the lands, and that appellee, John P. Wright, owned several cars of lumber located on the Frisco Railroad tracks at Foreman, Arkansas, which he was about to sell, convey or otherwise dispose of by shipping the same without the State of Arkansas, with the fraudulent intent to cheat, hinder or delay his creditors in the collection of their debts, and, being insolvent, appellant was entitled to an attachment against the lumber for the amount of the indebtedness in excess of the.value of the lands. An attachment was issued and levied upon said lumber. A motion was made by appellee, Wright, to dissolve the attachment, which the court overruled, over his objection and exception.
Appellee, Wright, controverted the alleged ground of attachment in his answer.
Upon a hearing of the whole case the court found that, on the date of the rendition of the decree, November 30, 2926, the amount due upon the note, including interest, was $2,757.50; that the mortgaged lands were not worth the amount of the mortgage debt, taxes and assessments lawfully charged against them; that, at the time the complaint was filed, appellant caused an attachment to be issued and levied upon said lumber; that the attachment was wrongfully obtained, and ought to be dissolved; and that, for the wrongful issuance and levy of the attachment, said appellee should have judgment as an offset against the debt as damages for the depre ciation and difference in the value of said lumber from the date of the levy, which ivas on the 20th day of October, 1926, until the date of the rendition of the judgment, which was on November 30, 1926, in the sum of $1,714.50. Based upon the aforesaid findings, the court dissolved the attachment and allowed Wright the amount of damages aforesaid as a credit on the note, and rendered a judgment against him and his surety for $1,043 principal and interest, and a decree of foreclosure of the mortgage lien upon the lands, and an order of sale thereof to satisfy said judgment.
An appeal has been duly prosecuted from that part of the decree dissolving the attachment and allowing Wright an offset of $1,714.50 for damages on account of the levy of the wait of attachment. Appellee, Wright, ■ owned 1,568 acres of land in Arkansas. He mortgaged 628 acres of it to appellant to secure the note and mortgage made the basis of this suit and 220 acres to secure a $2,000 loan to it. He mortgaged 235 acres to the Murray '(tin Oompanv for $5.657, After making these mort-' gages he allowed all his lands, including.those not mart-. gaged, to forfeit to the State for taxes, "and the road improvement taxes to accumulate against them. When this «nit was instituted it would have required $283.91 to redeem the 628-acre tract, sought to be foreclosed, from the State, and $1,983.34 to redeem said tract from the nonpayment of the road taxes. It would likewise have required a large amount to redeem'his other lands from the tax forfeitures. Prior to the institution of this suit, several judgments had been obtained against Wright,- and he had quite a number of debts which were past due, including the debt to appellant, which had fallen due by reason of breaches committed by appellant under the terms of the mortgage. He refused to pay the mortgage indebtedness or to redeem the mortgaged lands from the tax forfeiture. In conversation with the attorney representing appellant, just prior to the institution of this suit, he said that he had sold the lumber at Foreman, consisting of 140,000 feet, for $1,600, and would pay $1,000 of the amount on appellant’s note, but later, and prior to the institution of the suit, he withdrew the promise and refused to pay any part of the proceeds from the lumber on appellant’s debt. Almost all of his lands were wild. A small portion of the acreage on the 628-acre tract was in cultivation and had a small house upon it. It is reflected by the weight of the evidence that the land was worth four or five dollars an aere, and that it would cost almost the entire value of the lands to redeem them from the tax forfeitures, leaving only a small margin in value to apply upon the mortgage indebtedness. Wright had built a cotton gin upon the land he mortgaged to the gin company, at a cost of $13,000, which proved to be a losing proposition. They only ginned forty hales of cotton during the season of 1926. We think it apparent that there was no equity in that property, and that it would not have sold for enough to pay the mortgage thereon. Wright’s other property consisted of log-wagons of the value of $300, 14 head of horses and mules of the value of $980, harness of the value of $150, a sawmill of the value of $750, merchandise of the value of $2,000, and outstanding- accounts amounting to $.1,500, a small amount of hay and corn, and thirty head of cattle upon which there was a mortgage to the State Bank Commissioner.
At the time of the institution of the suit the clerk’s record showed that judgments had been rendered against Wright in favor of the Procter-Gamble Distributing Company for $'255.24, Van Yleet-Miansfield Drug Company for $211.73, Citizens’ Bank of Foreman for $1,042, and Loid Rainwater, State Bank Commissioner, for $250.38. He also owed appellant about $3,000, for which this suit was brought, and which had become due on account of his failure to make payments provided for in the mortgage; and $2,000 to appellant on a note and mortgage secured by 220 acres of land, and $5,657, $2,800 of which amount was past due, to the Murray Gin Company, which was secured by a mortgage on 235 acres; $283.91 was necessary to redeem the 628-acre tract of land from the State, $1,983.34 to redeem the lands from the nonpayment of the yoad improvement district taxes, and large amounts necessary to redeem the other lands from the State, and various amounts due other creditors, totaling, perhaps, as much as $2,000.
We are convinced, after a careful reading and analysis of the testimony, at the time of the issuance and levy of the attachment John P. Wright was insolvent in the sense that he was unable to pay his debts, and that his purpose in selling and attempting to ship the lumber which was afterwards attached in this action was to at least delay and hinder his creditors. It is quite apparent that there will be a deficiency judgment when the 628-acre tract of land is sold under the foreclosure decree, and also apparent that it will take about all his other lands are worth to redeem them from the tax assessments and forfeitures. _ The attachment should have been sustained, and judgment should have been rendered againsl John P. Wright and his surety for the full amount due upon the note. - The trial court erred in dissolving the attachment and in rendering judgment against John P. Wright and his surety for only $1,043 and in awarding $1,714.50 for damages on account of the levy of the attachment. His cross-complaint for damages should have been dismissed.
The judgment and decree are reversed, and the cause is remanded with directions to proceed in accordance with this opinion. | [
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Wood, J.
The property involved in this controversy is two lots in the city of El Dorado, Arkansas, one 100 feet by 282 feet, and the other 28 feel by 100 feet. For convenience we will designate the larger lot as the ‘ ‘ Scroggins lot ’ ’ and the smaller lot as the ‘ ‘ Church lot. ’ ’
In 1912 Bill Scroggins and his wife executed a deed of trust to J. L. Wallace, trustee, covering the two lots and other property to secure an indebtedness of $104.25 owing to T. H. Norris, which indebtedness matured October 17, 1913. Bill Scroggins died in October, 1913, testate. His will provided that, after payment of his debts, his wife, Catherine Scroggins, should have all of the property he possessed at the time of his death for her natural life. At her death the property was to pass to their three grandchildren, Oscar Staples, Estelle Staples Ward and Ethel Staples Galbert, until they became of age, and then the property should be divided equally between Oscar Scroggins, Della Scroggins Jenkins, Mollie Scroggins Manley, William Scroggins, the same being the children of the testator and the grandchildren mentioned. It was mentioned in the will that, in the event the property could not be divided satisfactorily between the parties named, it should be sold and the proceeds equally divided between them. The will was admitted to probate on March 20, 1925.
At the time of the death of Scroggins all of his children were living and of age, and he and his wife and several of the beneficiaries under the will were living-on the Scroggins lot, and those -surviving, and residing thereon, continued to do so. In January, 1914, Catherine Scroggins, Will Scroggins, Oscar Scroggins, Della Scrog-gins Jenkins and Mollie Scroggins Manley, beneficiaries under the will, executed a deed of trust to J. M. Wallace, trustee, to secure an indebtedness to T. H. Norris in the sum of $162.50, which matured in October, 1914. This deed of trust covered also the two lots and other property. The deeds of trust mentioned were in the usual form. There is a provision in each of the deeds of trust to the effect that, in case of default in payment of the indebtedness, the trustee is authorized to take possession of the property, and, “on giving ten days’ notice of publication on the courthouse, in the county of Union, may and shall sell said property for cash in hand, ’ ’ etc. There is also a provision to the effect that the sale shall be made at such place as the trustee may designate, and also that the trustee may sell the property at private sale without notice, and a provision to the effect that the trustee shall make deed to the purchaser.
On November 25,1914, default having been made, the trustee sold both lots at one sale, and executed a deed to the purchaser, T. H. Norris. The deed made by the trustee to the purchaser, among other things, recites:
“And whereas, default having been made, the said premises were, on the 25th day of November, 1914, after fully complying with the conditions of the said deed of trust, sold at public auction to the said party of second part for the sum of $468, being the highest sum bid for said property, the said property having been duly appraised and said sum being more than the two-thirds appraised value thereof, the notice of the time and terms of said sale having been first given by published notice in the Union County Tribune. Now therefore I, said party of the first part, for and in consideration of the premises and the said sum of $468 to me in hand paid by the said party of the second part, do hereby grant, bargain, sell and convey unto the said party of the second part, and to his heirs and assigns forever, the said premises, to-wit:” (Then follows a description of the property and the date of the deed, June 21, 1916).
The widow and two or three of the children and several of the grandchildren were living on the Scroggins lot at the time of the foreclosure sale, and all of the children were living and were of age at that time. Immediately following the sale, in 1914, T. II. Norris, the purchaser, took possession of the property. The widow and adult heirs recognized the sale, and the widow and two or three of the children rented the property from Norris and remained on the same for something like a year, when they moved away. Norris - continued in possession of the property, renting the same to different parties. He made improvements thereon after his purchase — spent about $1,500 in repairs on the premises. Norris paid the taxes on the property each year, beginning with the year 1916. On June 14, 1909, Scroggins and wife executed a deed to the trustees of the M. E. Church of El Dorado, covering the lot designated as the church lot. The consideration named in the deed was $500, and on the same day the trustees of the church executed a deed of trust in favor of W. J. Pinson in the sum of $500, W. R. Morgan being named as trustee in the deed of trust. On November 25, 1921, W. R. Morgan executed what is designated as a trustee’s deed to Rhoda Wysinger, which recites that there was a default in the payment of the indebtedness secured by the deed of trust; that the property was sold at public auction under the authority contained in the deed of trust, by the substituted trustee, W. R. Morgan, and was purchased by Wysinger, who paid therefor the sum of $880. The deed recites that the property was first duly appraised and that the sum paid for same was more than two-thirds of the value thereof.
This action was instituted by the plaintiffs, the widow and heirs of Will Scroggins, against T. H. Norris, on the 30th of August, 1924, for the purpose of setting aside the trustee’s deed to Norris. Plaintiffs alleged that they were the owners of the property under the will of Scrog-gins; that T. H. Norris was in possession of the same under a trustee’s deed, which they alleged was void for the following reasons: (1) The purported foreclosure sale was had after'tlie death of the mortgagor. (2) No statement of any alleged debt was furnished to plaintiffs, and no demand was made of them. (3) No notice of any kind was given plaintiffs.- ' (4) No appraisers were appointed as required by law. (5) No appraisal was made as required by law. (6) No notice of sale was given as required by law. The plaintiffs set up that the possession of Norris was that of a mortgagee in possession, and asked that he be required to account to the' plaintiffs for the rental value of the-property. The plaintiffs, Estelle Staples Ward and Oscar Staples, set up that they were minors at the time of the sale of the property under the deed of trust, and that one of them was still a minor, and that they should be allowed to redeem the property for the benefit of themselves and their cotenants. The prayer of the complaint was for a redemption of the property and an accounting, and for all proper relief.
Rhoda Wysinger, by order of the court, was made a party defendant. She answered, and made her answer a cross-complaint against the plaintiffs and the defendant Norris, alleging, in substance, that she had no knowledge sufficient to form a belief as to the alleged claim of title of the plaintiffs under the will of Scroggins. She admitted that William Scroggins at one time did acquire title to all the land described in the complaint. She alleged that she was the owner and in possession under the trustee’s deed to the lot in controversy, designated as the church lot, and had been in adverse possession under color of title for more than fifteen years. She deraigned title from the 'Scroggins through mesne conveyances. She prayed that the plaintiffs’ complaint be dismissed so far as it seeks to recover the lot claimed by her, that her title be quieted, etc.
The defendant, Norris, answered, denying all the allegations of the complaint of plaintiffs and the cross-complaint of Rhoda Wysinger, and set up title under the trustee’s deed as above set forth, and title by limitations. •He also pleaded laches and estoppel against the widow and heirs of Scroggins.
The above are the issues raised by the pleadings. The court heard these issues upon the exhibits set forth and the depositions of witnesses, and found in favor of the plaintiffs and rendered a decree in their favor as to the Scroggins lot, and appointed a master to state an account between the plaintiffs and Norris. The court found in favor of the defendant, Bhoda Wysinger, on her cross-complaint as against the plaintiffs and the defendant, Norris, as to the church lot claimed by her, and entered decrees according to its findings, retaining jurisdiction for a final accounting.
The defendant, Norris, prosecutes this appeal.
1. The appellant claims title by his trustee’s deed, and by adverse possession thereunder. The appellant did not acquire title under the trustee’s deed, because the trustee, in making the sale of the property in controversy, did not pursue the power contained in the deeds of trust. These deeds of'.trust are separate instruments, and, although they cover the same property and name the same person as trustee, nevertheless, they were executed by different persons on different dates for different indebtednesses maturing- at different times. Neither of these deeds of trust confers authority upon the trustee,, in default of payment of the amounts due under the separate instruments, to treat these amounts as one indebtedness and to proceed to sell the property as if there were one indebtedness due by the same persons covered by one and the same instrument. In a court foreclosure there might be, upon proper showing, a consolidation of causes and all rights and equities of the parties worked out and adjusted prior to the order of sale, and one sale would be valid and binding, when effectuated under the orders and directions of the court. But, certainly, unless such power is conferred by the deed of trust, a trustee has no right to exercise such power, and in doing so he causes legal complications which necessarily would deter bidders at the sale, and thus be a legal fraud upon the makers or mortgagors in the deeds of trust or mortgages thus sought to be foreclosed.
In 19 it. C. L., page 592, § 407, it is said: “While the power of sale contained in a mortgage or trust deed is valid, and a sale thereunder may confer a good title on the purchaser, the powers of the person foreclosing thereunder are limited and defined by the instrument under which he acts, and he has only such authority as is thus expressly conferred upon him, together with the incidental and implied powers that are necessarily included therein.” See also 19 R. C. L., § 402, page 587.
There is no incidental or implied power to be derived from the power expressly conferred upon the trustee in these separate deeds of trust under review that would authorize the trustee to conduct the sale in the manner indicated by the recitals in his deed to the appellant.
In Littell v. Grady, 38 Ark. 584, speaking of the powers to be exercised by trustees in deeds of trust, this court said, at page 589:
“Parties who execute these powers are properly held to ‘uberrima fides,’ in view of the danger of oppression, and the courts of chancery have been used to interfere to prevent any unnecessary sacrifice, or unfair disregard of the rights of the debtor. Where the trustees or beneficiaries do not wish to become the subjects of this jealousy, and are diffident of enduring the test, they may always invoke the aid of equity, and- foreclose under its supervision. It is always the safe plan for all parties.. ‘Sales under powers,’ says Mr. Perry (Trusts, § 602, X), ‘in deeds of trust, or mortgages, are a harsh mode of foreclosing the rights of the mortgagor. They are scrutinized by courts with great care', and will not be sustained unless conducted with all fairness, regularity, and scrupulous integrity. Upon very slight proof of fraud, or unfair conduct, or of any departure from the terms of the power, they will be set aside’.”
In Badgett v. Keating, 31 Ark. 400, it is said: “The general rule is rightly adhered to, that the power can only be executed in the mode, at the time, and upon the conditions prescribed in the deed according to its provisions.” And in Stalling v. Thomas, 55 Ark. 326, 18 S. W. 184, we said: “The right to foreclose a mortgage at private sale is derived from the power conferred by the mortgage, and, independent of it, does not exist. The instrument creating such a power determines its extent, as well as the manner and conditions of its exercise; and those relying on such a sale must show that it was made in obedience to this power.” Craig v. Meriwether, 84 Ark. 298, 105 S. W. 585. See also Lesser v. Reeves, 142 Ark. 320-329, 219 S. W. 15.
It is wholly immaterial whether the makers of these deeds of trust were actually defrauded by the method pursued by the trustee in treating the deeds of trust as one instrument. It is simply a case where appellant acquired no title under his purchase at the trustee’s sale, because no power was conferred upon the trustee by the deeds of trust to make the sale as the same was conducted by him. As we have seen, the sale and the trustee’s deeds were void unless the deeds of trust conferred upon the trustee the power to make the sale as he did make it, which is not the case. The appellant therefore acquired no title by the trustee’s sale and deed made thereunder.
2. The appellant testified that he took possession of the property following the foreclosure of the deeds of trust in 1914 and he had been in possession ever since, making improvements on the premises to the extent of fifteen or sixteen hundred dollars. His first tenant, after taking possession of the property, was Catherine Scrog-gins, the widow of Bill Scroggins, and some of the Scrog-gins children. They rented the property for about a year after Bill Scroggins died, and appellant has continued to occupy the property through tenants since that time. But this possession of appellant, under his void trustee’s deed, does not vest him with title under the seven-year statute of limitations.
“Where a mortgagee enters into possession of the mortgaged premises under a void foreclosure,' he is pre sumed to hold as mortgagee in possession, and limitation does not run in his favor, or in favor of his grantee, against a suit by the mortgagor. * * * The mortgage relation still continues between the purchaser at such void sale and the owner of the equity of redemption, the right of redemption continues, and the statute of limitations does not begin to run against the right until actual notice is given to such owner by the party in possession under such void sale, that he claims to hold in some other right than that of mortgagee or assignee of the mortgage, or he clearly makes it known by his acts that he holds adverse to the mortgage.” 2 Jones on Mortgages, page 781, § 1152.
We have recognized the above doctrine announced by Mr. Jones in Swift v. Ivery, 147 Ark. 141, 227 S. W. 600, where we said: “Appellants therefore, being in the attitude of a mortgagee in possession, acquired no title by adverse possession,'as pleaded and claimed by them.” That doctrine is as applicable to the facts of this record as it was. in the above case, which is quite similar. Begardless therefore of what may be the rule in other jurisdictions, this court is committed to the doctrine that a mortgagee in possession cannot acquire title as against the mortgagor. Therefore the appellant had no title by adverse possession to the .Scroggins lot.
We deem it unnecessary to determine, under the facts of this record, whether the widow and four adult children of Bill Scroggins would be estopped by their conduct from maintaining this action to redeem the Scroggins property, even if this were a suit by them alone against the appellant for that purpose. For, if it be conceded that these adult plaintiffs would be estopped by their laches from maintaining an action to redeem the Scroggins lot from appellant, it is certain that the plea of estoppel by conduct could not avail the appellant as against the minor plaintiffs, who had a vested interest in the property under the will of their grandfather, Bill Scroggins, as we construe such will. Conceding’, then, without deciding, that the widow and adult heirs estopped themselves from maintaining’ this action against the appellant by their conduct in permitting the appellant' to take possession of the property under the trustee’s deed and in allowing him to make valuable improvements thereon and paying the taxes and as the landlord and owner, nevertheless this conduct on their part would not operate to divest their title and interest in the property and vest the same in the appellant. Most assuredly, then, this conduct on the part of the adult devisees would not operate to divest the title of the devisees of Bill Scroggins who were minors at the time of such conduct, nor preclude or estop them from maintaining their action to redeem the Scroggins property from the mortgage. They were devisees under the will, owners of an undivided interest in such property.
In 31 C. J. 1005, § 33, it is said: “As a general rule the doctrine of estoppel has no application to an infant, even though he had reached the age of discretion.” One of the plaintiffs, Oscar Staples, was still a minor, and appears by his next friend, and another, Estelle Staples Ward, had just reached the age of 21 when this action was instituted. They asked to redeem the property for the benefit of themselves and their cotenants. They unquestionably had the right to do so. Mr. Pomeroy says:
“Any person who holds a legal estate in the mortgaged premises, or in any part thereof, derived through, under, or in privity with the mortgagor, and any person holding either a legal or equitable lien on the premises, or any part thereof, under or in privity with the mortgagor’s estate, may also in like manner redeem from the prior mortgage. No such redemption, however, is possible unless the mortgage debt is due and payable, nor unless the mortgage is wholly redeemed by payment of the entire amount of the mortgage debt. The debt being a unit, no party interested in the whole premises, or in any portion of them, can compel the mortgagee to accept a part of the debt, and to relieve the property pro tarto from the lien. Furthermore, if the person redeeming lias only a partial interest in the premises, and there are other partial owners also interested in having the lien of the mortgage removed from their estates — such as co-owners, life tenants, reversioners, remaindermen, and the like — he cannot compel them, in the first instance, to adv'ance their proportionate shares for the purpose of paying off the debt; he must himself redeem the whole mortgage, and his only equity against them consists in his right to enforce the mortgage upon their estates as a security for obtaining a subsequent contribution.” 3 Pam. Eq. Jur., § 1220.
The trial court decreed that the appellant be repaid for the cost of his improvements, with interest, as a part of the terms of the redemption from the mortgage. Appellees are not complaining of the decree in this respect, and surely the appellant has no right to complain. Appellant is still a mortgagee in possession, and, as long as that relation obtains, the property is subject to redemption by those having that right, under the doctrine announced by Mr. Pomeroy, supra.
3. Concerning the church lot, the plaintiffs below, the appellees here, the widow and heirs of Scroggins, have disclaimed any title or interest in the church lot, leaving the controversy as to that lot to be determined between her and the apxxellant. In view of what we have already said, it becomes unnecessary to give the controversy between appellant and appellee, Rhoda Wysinger, any sexoarate treatment. We have already held that appellant, being a mortgagee in possession of both lots, could not acquire title thereto by adverse possession, and he had no title thereto under his trustee’s deed. Appellee, Wvsinger, has title under a trustee’s deed, regular on its face, and sufficient, in the absence of any attack made thereon and proof of its invalidity, to establish her title to the church lot and to have the same quieted in her. There is no plea or proof of laches as to her.
The decree is therefore’correct in all respects, and the same is affirmed. | [
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Humphreys, J.
This is an appeal from the decree of the chancery court of Union County, Second Division, dismissing the complaints for want of equity in the cases consolidated brought by appellant against each appellee for the purpose of canceling certain oil assignments, in the nature of overriding royalties, in an old and gas mining lease covering twenty acres of land in section 5, township 16 south, range 15 west, in said county.
One of the oil assignments sought to be canceled was executed by appellant on the 14th day of July, 1923, by its vice president, William McComb, and its secretary, C. C. Beach, to appellee, City State Bank of Chicago, Illinois, for a valuable consideration for one-fourth of all the oil and gas produced, saved and marketed from said lease until the bank should receive therefrom the sum of $24,000. Cancellation of the oil assignments was sought upon the alleged ground that it was never authorized oirá tifiod by the stockholders or board of directors of appellant, and that it was not within the scope and power of its vice president and secretary -to execute same. The prayer of the complaint was in the alternative, that, if the court found the assignment to be valid, it be declared a mortgage for the security of $10,000 alleged to have been borrowed by appellant from said appellee bank, and for an accounting and application of the proceeds of the oil received to the payment thereof.
The other oil assignments sought to be canceled were executed by appellant, acting through the same officers, to Gary G. Harris, by which it conveyed to him, on November 15, 1925, for a valuable consideration, four-sixteenths of the oil and gas produced, saved and marketed from said lease until Harris should receive from the oil and gas the sum of $4,500; and an assignment dated November 21, 1925, in which it'conveyed to Gary G. Harris, trustee, for a valuable consideration, seven thirty-seconds of all oil and gas produced, saved and marketed from said lease until he should receive $10,500 therefrom.
The grounds upon which the last two assignments were sought to be canceled are as follows:
(1) Because the assignments were not authorized or ratified by appellant either through its board of directors or its stockholders; (2) that, if the assignments should be upheld by the court, they should be declared mortgages for the security of the loans or advances made to appellant by Gary G. Harris, and declared usurious on account of an exaction of more than ten per cent, per annum for the forbearance; (3) that, if the assignments should be declared loans and not tainted with usury, an accounting should be ordered to the end that the proceeds derived from the oil received should be applied as payments upon the indebtedness.
The appellees in the respective suits filed answers controverting the material allegations in each complaint, and the cause was heard and determined upon the issues joined by the Hon. A. L. Hutchins, chancellor of the Fifth Chancery District of Arkansas, in exchange of circuits with the Hon. G. M. LeOroy, chancellor of the Seventh Chancery District of Arkansas. It is unnecessary to set out the testimony introduced by the respective parties responsive to the issues joined, as it is disclosed by the record that all the questions involved between the parties in these suits are moot. The record reflects that, on the 13th day of February, 19'2C, appellant herein executed an assignment of the oil and gas mining lease involved in this controversy to II. M. Harrell in consideration of $32,000 and other valuable considerations, with all rights therein and thereunder, together with all personal property used and obtained in connection therewith and all oil and storage land covered by the lease, at. 7 o ’clock a. m. February 13,1926, and covenanted in the assignment that it was the lawful owner of said lease and rights and interests therein and of all property thereon and used in connection therewith, and that it had good right and authority to sell the lease, rights, interest and property, and that they were clear and free from all liens and incumbrances, save and except the lien of a certain deed of trust executed to W. G. Forrest, trustee, dated February 12, 1926, securing the bonded indebtedness of appellant, aggregating $93,791, and save and except all valid oil assignments then of record.
The assignments sought to be canceled in this consolidated suit were of record at that time. Under this transfer to H. M. Harrell, all equities in the property passed out of appellant .into him. If the assignments are valid, he bought subject to them, and if they are void, then the oil which was pledged to liquidate them would belong to Harrell and not to appellant. If these three oil assignments were canceled, appellant would not profit thereby, as everything it owned had passed to Harrell, and the profit would go to him. He is the. only interested party, and is making no objection to the three assignments sought by appellant to be declared mortgage liens instead of absolute transfers.
On account of all questions involved in the appeal being- moot, we refrain from determining them, and on that account affirm the decree of the chancellor dismissing the complaints. | [
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Mehaffy, J.
The New Rocky Grocery Company brought suit in the Little River Chancery Court against P. D. Whatley and J. A. McKinney, doing business under the name of the Twin City Lumber Company. It alleged that P. L. Whatley was indebted to the grocery company in the sum of $1,231.18, and that, to secure the payment of said indebtedness, Whatley executed and delivered a bill of sale to certain lumber. Thereafter other bills of sale of lumber were executed and delivered by Whatley to the appellee, and it is alleged that McKinney is a nonresident, living in Brooklyn, New York, and that P. D. Whatley and McKinney entered into an agreement with the plaintiff by which plaintiff was to make certain advances to Whatley to enable bim to manufacture and ship lumber to McKinney, and that appellee was to share in the profits from the manufacture and sale of the said lumber. That, while operating under this agreement, the defendant, Whatley, manufactured and shipped to McKinney large quantities of lumber, on which the appellee was entitled to one-half. the profits. That Whatley and McKinney agreed and undertook to ship and sell the lumber and to account to plaintiff for the value thereof, and that they had shipped large quantities, and failed and refused to account for same, and that they had appropriated the same to their own use.
It was further alleged that there was 75,000 feet of said lumber at Foreman, Arkansas, and that plaintiff had a lien on this lumber, and that the defendants are selling it and removing it from the State, with the intent to defraud plaintiff. That Whatley was wholly insolvent, and defendant McKinney a nonresident. That the accounts between the parties were long, intricate and complicated, and prayed for judgment against Whatley, and asked that the judgment be declared a lien against the lumber. Asked for judgment against McKinney for his part of the profits, and for the appointment of a receiver.
The bills of sale from Whatley to the appellee were filed, affidavit and bond for attachment, and a forthcoming bond was filed by J. A. McKinney.
McKinney filed a motion to dismiss the attachment on the 6th day of March. The complaint was filed on. February 15, and on February 19 the forthcoming bond was filed. On March 6 defendant filed a motion to make complaint more definite and certain, and thereafter filed a separate answer, stating that he did not waive his demurrer.
The court found for the appellee, sustained the attachment, and gave judgment against McKinney and the sureties on the forthcoming bond, and found the indebtedness due the appellee from Whatley. The court also required the plaintiff to make- his complaint more specific in certain particulars, as requested by defendant, McKinney, in his motion.
Appellant contends thát the chancery court had no jurisdiction, and also that the attachment was not properly issued.
Plaintiff alleged that he had bills of sale for lumber which was being removed by the defendants, and that this bill of sale of the specific lumber, describing it, gave him, a lien, which of course, if true, he Could enforce in the chancery court. In addition to this, plaintiff alleged the insolvency of Whatley and the nonresidence of'McKinney, and asked that a receiver be appointed to take charge of the property.
Certainly the chancery court had jurisdiction of this suit. It was the proper court in which to enforce the lien. All of the parties treated the bills of sale not as absolute sales but as mortgages, and plaintiff did not seek to take the lumber as belonging to him by the enforcement of the lien created by the bill of sale. All of the bills of sale given by Whatley were treated as mortgages, treated as creating liens, and not as conveying the absolute title to the property. We therefore conclude that the chancery court had jurisdiction of the subject-matter.
But it is contended that the attachment was not issued in the manner provided by the statute. Since the court had the right to take charge of the property under the allegations in the complaint, without any regard to the attachment, it appears that it would be immaterial whether the attachment was properly issued or not, since, if the court had a right to take charge of the property and did take charge of it, it would be immaterial whether it did it under the attachment or by appointing a receiver, and it is therefore unimportant to decide whether the attachment originally issued was properly issued or not. Moreover, the court permitted an amendment, which it had a right to do.
The main contention of appellant, however, is that the court retained jurisdiction over the appellant by reason of the attachment branch of the suit. The record shows that the court had jurisdiction of the person of McKinney without any regard to the attachment. It is true McKinney gave a forthcoming bond and thereby entered his appearance, but he not only did that, he filed a motion to make the complaint more specific, and did this without reserving any objection to the jurisdiction of the court. Not only this, but he afterwards filed an answer, entering a general appearance and asking for relief from the court.
This court held, on February 13, 1928, in the case of Federal Land Bank v. Gladish, ante, p. 267, that, where one asked affirmative relief of a court, or appeared and pleaded, without reserving his objections to the jurisdiction or to the service, he was in court for all purposes.
“A defendant appearing specially to object to the jurisdiction of the-court must, as a general rule, keep out of court for all other purposes. In other words., he must limit his appearance to that particular question, or he will be held to have appeared generally and to have waived the objection. If he takes any step consistent with the hypothesis that the court has jurisdiction of the cause and the person, such special appearance is converted into a general one, whether it is limited in its terms, to a special purpose or not.” 4 C. J. 1319.
Again: “One seeking to take advantage of want of jurisdiction in every such case must, according to these decisions, object on that ground alone. He must keep out of court for every other purpose. If he goes in for any purpose incompatible with the supposition that the court has no power of jurisdiction on account of defective service of process upon him, he goes in and submits for all the' purposes of personal jurisdiction with respect to himself, and cannot afterwards be heard to make objection.” 2 R.°C. L. 33-9.
We therefore conclude that the court had jurisdiction, not only of the subject-matter but of the person of the defendant.
It appeared from the evidence that Whatley and McKinney had a lumber contract, and that ■ McKinney, doing business as the Twin City Lumber Company, had a representative in Little River County, and that, subsequent to the making of the contract between McKinney and Whatley, McKinney, Whatley and the New Rooky Grocery Company entered into a contract with reference to the profits, or providing- that appellee should have a portion of the profits.
It is contended by appellant that this was for the purpose of collecting1! an old debt due from Whatley to the appellee. But it,makes no difference what appellee’s purpose was, or, rather, it is immaterial whether it was to collect an old debt or not, the alieg-ation and proof are to the effect that he-was to make advances and assist in the manufacture of lumber, and was to have one-half of the net profits. This was a contract that the parties had a legal right to -make, and it is a question of evidence as to whether they did make it.
It is next contended by appellant that the judgment is based, or in part based, on a contract within the statute of frauds. We do not think the statute of frauds is involved, and appellant does, not point out in just what way the statute of frauds affects the case. But it is contended that that part of the judgment giving- appellee a lien for part of the profits is within the statute of frauds. This is what we understand the appellant to argue. We do not think that the contract between the parties was either within the statute of frauds or was without consideration, and this is a question of -fact which was determined by the chancellor.
■Stackhouse was the representative of appellant, superintended or supervised the purchasing, manufacture and shipment of lumber. About this thfere does not seem to be any dispute in the testimony, and if he had authority to purchase timber, make contracts for the manufacture, hauling- and shipment of lumber, the contract-alleged to have been made in this case was within the apparent scope of his authority, and would -bind his principal.
We deem it unnecessary to set out the testimony at length. This court has many times held that the findings of fact by a chancellor, unless against the preponderance of the evidence, will not be disturbed. It would serve no purpose to set out the testimony at length or to call attention to authorities supporting this rule.
We think the chancellor’s finding was sustained by a preponderance of the evidence, and the decree is therefore affirmed.. | [
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Mehaeey, J.
On the 14th day of September, 1926, a petition of the electors of School District No. 17 of Woodruff County, Arkansas, was filed with the county board of education, asking* that all of the territory of the School District No. 17 be annexed to McCrory Special School District, and at the same time an accompanying request signed by four members of the school board of the McCrory Special District. The board of education, acting on said petition, made an order which annexed all of District No. 17 in Woodruff County to McCrory Special District. The McCrory Special iSchool District was signed to the application by the president and secretary and two other members of the school board. Among other things, the board of education stated in its order that the petition was presented by F. A. CChert and J. P. Gibson, representing No. 17, and Vance M. Thompson, representing M cCrory .Special District. It was found, upon investigation, that this petition met with the requirement of § 8949 of the general 'school laws, and the annexation was made.
Among other things, ^ 8949 provides: “The county board shall annex contiguous territory to single school districts, under the provisions of this act, when a majority of the legal voters of said territory and the board of directors of said single district shall ask, by petition, that the same shall be done.”
It will be observed that the statement in the findings' of the board of education is that this section had been complied with. That is, a majority of the legal voters of the territory of District No. 17, and the board of directors of the special school district signed the petition. Then, in the transcript showing the pleas and procedure before the county board of education of Woodruff County, is the finding of the board that all of the provisions of law had been complied with.
The order of the board of education is valid on its face. It shows that all the provisions of law were complied with.
Act 183 of the Acts of the General Assembly of 1925 expressly provides for an appeal by any person or persons being- a party to the record or proceeding in a matter brought before any county board of education who feels ag-grieved by any final order or decision by any such board of education. The law provides that he may appeal within 30 days after the date of the final order or decision.
Appellant’s first contention is that the court had no jurisdiction, because it is contended that the order of the county board of education was not only erroneous but absolutely void, and cites the case of Acree v. Patterson, 153 Ark. 188, 240 S. W. 33, and relies on that and other cases to show that certiorari is the proper remedy for review by the circuit court of the orders of the board of education. And appellant calls attention also to the case of McCrory Special School District v. Curtis, 174 Ark. 343, 295 S. W. 971. In that case the court held that the legislators did not intend that any part of the territory once organized into a rural special school district could thereafter be taken and organized into another district of like kind. That was a rural special school district. District No. 17 is a common school district.
It was also said in that case that the board of education at that time was not authorized to change the boundary lines of a school district formed by the Legislature. But it has been expressly held several times that the county board of education has the authority to change the boundary lines of common school districts and to annex common school districts to special school districts,
This court, in construing § 8843 of Crawford Moses ’ Digest, said:
“The language in the act is broad enough to include any kind of school districts, and should not be limited by construction to apply to any particular classes of districts. The argument is made that the act should be construed as being applicable to rural districts only, because another mochos operao'odi for the annexation of territory to single or special school districts was provided by § 15 of act February 4, 1869, subsequently amended and digested as § 8949 of Crawford & Moses’ Digest. It is provided in that section that the ‘ county board shall annex contiguous territory to single school districts, under the provisions of this act, when a majority of the legal voters of said territory and the board of directors of said single school district shall ask, by petition, that the same shall be done.’ We do not think the provision quoted is inconsistent with or repugnant to the provisions of act No. 116 of the General Assembly of 1911. (Crawford & Moses’ Digest, §§ 8843-6). The modus opermidi provided in the annexation act permits the annexation of la part of the rural district as well as all of it, to a single district, whereas, under act 116 of the General Assembly of 1911, provision is made for the consolidation of school districts in their entirety only.” Murph v. Consolidated School Dist. No. 39, 168 Ark. 587, 270 S. W. 973.
It will be observed that the court in the above case decided adversely to the contention of the appellant in this case. The court stated there expressly that the act permitted the annexation of a part of a rural district as well as all of it to a single district, and we think there can now be no question about the authority of the county board of education to annex District No. 17. The order annexing the territory shows on its face a compliance with all of the provisions of law, and the law expressly authorizes an appeal from the decisions of the board to the circuit court, and therefore certiorari will not lie.
In the case of McCrory Special School Dist. v. Curtis, supra, the court said that certiorari was proper in that case because the order of the county board of education was absolutely void, and not merely irregular or erroneous. It was void because at that time the law did not authorize the county board of education to take any part of the territory of a rural special school district and organize it into another school district or annex it to another .school district. That was not true, even at that time, with reference to common school districts.
The court in the above case said:
“The county board of education, in the absence of a statute giving it the power to annex rural special school districts to other districts, special or common, had no jurisdiction whatever in the matter, and its judgment was absolutely void.”
In this case the board ■ of education did have the authority to annex District No. 17, and its order is valid on its face, and the law expressly provides for an appeal, and in such case certiorari will not lie.
This court has said that a writ of certiorari cannot be used in any case where there is or has been a right of appeal, unless the opportunity for appeal has been, lost without fault of the petitioner. Lamb & Rhodes v. Howten, 131 Ark. 211, 198 S. W. 521; Brown & Hackney, Inc., v. Stephenson, 157 Ark. 470, 248 S. W. 556; Pruitt v. International Order of Twelve, etc., 158 Ark. 437, 260 S. W. 331; Tilghman v. Russell, 158 Ark. 593, 251 S. W. 353.
Appellant’s remedy was by appeal, and the judg- • ment and order of the county board of education was valid on its face, and the judgment of the circuit court must therefore be affirmed. | [
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Hart, C. J.,
(after stating the facts). Under the Federal Bankruptcy Act, certain debts that are provable are nevertheless excepted from the operation of the discharge decree. Remington on Bankruptcy, 3d ed., vol. 7, § 3533. Under § 3537 it is said that liabilities for obtaining property by false pretenses or false representations are excepted from the operation of discharge. The author adds that this exception was added by the amendment of 1903, and took the place of the former provision that read: “Judgments for fraud or for obtaining property by false pretenses or false representations.”
Upon the same subject we quote from Collier on Bankruptcy, 13 ed., vol. 1, page 613, the following:
“Liabilities for fraud, false pretenses and false representation. Before the amendment of 1903, a bankrupt might have been released from a debt contracted in' fraud, unless the fraud had been determined and ia judgment therefor had been rendered. As the law now stands, the frauds which will bar discharge are those connected with the obtaining of property by ‘false pretenses or false representations.’ ‘Property’ as here used has the meaning usually accorded to the word in similar statutes; it means something of substance; it includes money, but does not include services.”
In Forsythe v. Vehmeyer, 177 U. S. 177, 20 S. Ct. 623, 44 L. ed. 723, it was held that a representation as to a fact, made knowingly, falsely and fraudulently, for the purpose of obtaining money from another, and by means of which such money is obtained, creates a debt by means of a fraud involving moral turpitude and intentional wrong, and such debt is not discharged by a discharge in bankruptcy.
In Bullis v. O’Beirne, 195 U. S. 606, 25 S. Ct. 118, 49 L. ed. 340, it was held that on writ of" error to a State court, reviewing its refusal to cancel a judgment after discharge of the debtor in bankruptcy, on the ground that the judgment was in action for fraud, the Federal question is not whether the complaint sufficiently charged fraud to warrant the judgment, but whether the action was for fraud; and if there are facts charged and found to the effect that false and fraudulent representations were made and relied on which, in the State court, were sufficient to warrant relief on the ground of fraud, the judgment comes within the exception of § 17 of the bankrupt act, and will not be canceled, although the suit may originally have been brought in equity for specific performance instead of for money judgment. A statement made fraudulently with knowledge of its falsity must necessarily be intended to deceive.
In the same case it was said that, whether the complaint specifically charged fraud to warrant the judgment given, was not a Federal question. The court further said that the question for it was whether the judgment rendered by the said court was in an action for fraud, and.that, if so, it was excepted from the effect of a discharge in bankruptcy.
The question therefore presented in this case is, was the judgment in favor of Allison in Allison v. Cooper, in the circuit court, as finally decided in this court, one within the meaning of the second exception to the bankruptcy act above referred.to? We think an examination of the record in that case, as well as the interpretation, of the pleadings and judgment by the opinion of this court in the case referred to, in 144 Ark. 82, 221 S. W. 477, shows that the relief was granted on the ground of false representations by Cooper which induced Allison to make the exchange of lands. Under the principles of law above decided, in order to bring the case within the operation of the bankruptcy statute and prevent the discharge of the bankrupt, it should be made to appear that the money or property was obtained by fraudulent representations, and that it was not therefore released by the discharge in bankruptcy.
The object of the statute is to prevent the bankrupt from retaining the benefits of property acquired or money secured by fraudulent representations. In Cooper v. Allison, 144 Ark. 82, 221 S. W. 477, the court said:
“There is enough evidence, we think, to warrant the conclusion that the purchase by Parnell, and appellant’s (appellee here) representations as to the opportunity to resell the property to Parnell, were not made in good faith, but were collusive between appellant and Parnell, and that those facts constituted ¡actionable deceit practiced by appellant upon appellee, which induced the latter to enter into a contract for exchange of properties.”
As thus interpreted, we are of the opinion that the judgment in question was'based upon the fraudulent representations of Cooper, and the judgment sought to be revived in this case is, in our opinion, in ¡an action for fraud within the meaning of subdivision 2 of provable claims excepted from a discharge in bankruptcy in the Federal court.
It follows that the judgment will be reversed, and the cause will be remanded with directions to the circuit court.to issue the writ of scire facias and revive the judgment in accordance with the petition of S. Gr. Allison, and for further proceedings according to law and not inconsistent with this opinion. | [
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Lyle Brown, Justice.
Appellant Joe Hoyt Merritt, an inmate at the Arkansas Penitentiary, moved to dismiss two charges of felonious escape pending in the Pulaski County Circuit Court. Two terms of court intervened since the filing of the charges, and that fact would ordinarily entitle him to have the charges dismissed. His motions were denied and he appeals.
Merritt was committed to our penitentiary in 1960. In 1962 he was brought to Pulaski County for mental observation and he escaped. He was apprehended and returned to the penitentiary. That escape resulted in a charge being filed in the Pulaski Circuit Court. In July 1963 he was returned to Pulaski County for the purpose of arraignment on that charge. Arraignment was not perfected because he escaped again. That flight brought on a second charge of felonious escape. Within a few months he was in the Texas Penitentiary. He remained there until 1964, at which time he was delivered to our penitentiary authorities to serve the balance of his sentence. So far as the record discloses, Pulaski County authorities had no knowledge of Merritt’s return to this State.
Pulaski authorities apparently learned of Merritt’s whereabouts in 1966, at which time he was still serving out time in our penitentiary. He was again brought before the court and entered pleas of not guilty. At that time more than two terms of court had elapsed since the filing of the charges. Before the cases were reached for trial, Merritt’s motions to dismiss were filed. Those motion's were grounded on Ark. Stat. Ann. § 43-1708 (Repl. 1964) which requires that an accused who is incarcerated lie brought to trial before the end of the second term after the filing of the charges; however, delay which happens “on the application of the prisoner” effects a waiver.
The problem before us should here be succinctly stated. In the absence of a showing of knowledge on the part of Pulaski authorities of the return of Merritt, is he entitled to a dismissal of the charges?
— When Merritt made his successful escape he removed himself from the protective provisions afforded him by § 43-1708. That is true for two reasons:
(1) The purpose of the statute is to implement Ark. Const. Art. 2, § 10, which guarantees a speedy trial in criminal eases. While the constitutional and statutory-provisions were enacted to prohibit oppressive delays, they do not preclude the rights of public justice. See Beavers v. Haubert, 198 U. S. 77 (1905). The rights of public justice and the theory that the provisions afford relief to fugitives in all cases are not harmonious. Kansas has a statute almost identical with our § 43-1708. We agree with the holding in State v. Aspinwall, 252 P. 2d 841 (Kan. 1953), to the effect that an escaped fugitive removes himself from the protective coverage of the statute.
(2) The phrase, “unless the delay shall happen on the application of the prisoner,” includes any affirmative act by the accused which prevents a speedy trial. State v. Hess, 304 P. 2d 474 (Kan. 1956). Merritt’s escape and refuge in Texas at a time when the first charge was being processed for trial effected postponement of the proceedings.
We are next faced with a more puzzling question. When our penal authorities brought Merritt back to the penitentiary from Texas, was he ipso facto reinvested with the privileges afforded him by § 43-1708? Considerable research afforded no pointed answer. We start with the premise that the provisions for a speedy trial are not inflexibly mandator. See Leggett v. Kirby, 231 Ark. 576, 331 S. W. 2d 267 (1960). This court, in the exercise of sound discretion, should endeavor to blend the two cardinal principles afforded by the provisions —the prohibition against vexatious delay and the rights of public justice — and produce an answer which harmonizes with both principles. Guided by that approach, we conclude that in the absence of a showing that the authorities in Pulaski County were made aware of Merritt’s return and took no action within the prescribed two terms, Merritt’s rights under the recited statute did not reinvest.
Although the facts were slightly different, y/e are encouraged by the holding in State v. Pederson, 88 N. W. 2d 13 (Minn. 1958). There the fugitive returned to the State but did not make known his presence and request a trial. It was held that he waived his rights by escaping and only a return and a request for trial could restore his rights under a statute limiting the time for prosecution.
Any other rule would tend to defeat the rights of public justice as it pertains to returning fugitives. To hold otherwise would make it possible for a fugitive from justice to return to this State, become incarcerated under an alias in any one of our more than seventy-five county jails for a period of two terms of court and thereby nullify a pending felony indictment. The same immunity could be gained by being so confined on one of the several penal farms in the State, or in either of the branches of the penitentiary.
An escapee being returned to our penitentiary and who feels aggrieved by the pendency of other charges, can without the least difficulty make known his return and his desire that those charges be processed. Either a word to his warden, a letter to the trial court, or a letter to this court, or the federal district court, would accomplish the result. For Merritt, who feloniously fled the State to avoid trial, to rest in silence for a statutory period and thereby nullify the charge, does not comport with the rights of public justice.
Affirmed. | [
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Kirby, J.,
(after stating the facts). The action of ejectment is a possessory action, and may be maintained in this State in all cases where there is a legal right of possession against one who wrongfully holds possession from the person having the better right. Hill v. Plunkett, 41 Ark. 465; Ritchie v. Johnson, 50 Ark. 555, 8 S. W. 942, 7 Am. St. Rep. 118; and §§ 3686, 3694, C. & M. Digest. See also Osborne v. Ark. Ter. Oil & Gas Co., 103 Ark. 175, 146 S. W. 122.
It is not necessary to determine what estate is conveyed in the minerals in the land described in the mining leases before discovery thereof is made, in order to determine the right to the possession of such lands under a lease from the owner of the lands granting the possession thereof, with the exclusive right to develop and miñe for such minerals for a designated period.
The court held, in Mansfield Gas Co. v. Alexander, 97 Ark. 167, 133 S. W. 837, that by such a lease an exclusive right to make search for and to mine the discovered product is given to the lessee for a limited time. Osborne v. Ark. Ter. Oil & Gas Co., supra, and Kolachny v. Galbraith, 26 Okla. 772, 110 Pac. 902, 38 L. R. A. (N. S.) 451.
The leases, as specifically set out and relied upon in the complaint, unquestionably gave the appellant the exclusive right to possession of the lands for exploitation and development of gas and oil therein for the time designated in the leases in accordance with their terms.
The allegations of the complaint show the making of the leases in the first instance by the owners of the lands to Conyers and Hunt and their assignment to appellant; the making of the second leases of the same lands a few days before the end of the year given in the first leases-for the drilling of the well, and at the end of which time it was provided the leases should -become void if the test well had not been drilled; the ousting of plaintiff, about three years after the making of the second leases, on February '21, 1923, from possession of the lands, which it was. alleged are -now unlawfully held and occupied by Conyers and the other appellees, to whom the second leases had been transferred for the development and production of oil on the leased lands b3r them, and the damages to plaintiff on account thereof.
The execution of these second leases by the owners of the lands to appellant’s assignor, even conceding it was sufficiently -alleged that the right and estate conveyed thereby inured immediately to the benefit of the plaintiff under the terms of the statute, could have had no- effect to convey any further or other right to plaintiff than had already been conveyed under the terms of the first leases in any event, and it was not alleged that the lessors did not have a right to convey the leasehold estates in the first instance, as was done.
It is only in cases where the grantor attempts to convey a greater estate in the lands than he has the right and title to at the time of the conveyance that any -after-acquired title passes to the grantee under the terms of the statute, and then no greater estate would pass than that attempted to be conveyed in the first instance.
It is true that the complaint alleges that the plaintiff had performed all the - conditions precedent, as required in the leases, and that -oil was being produced from the leased lands, which would have, if produced by him, extended the life of the leases beyond the five-year term in the first leases executed, under the express- terms thereof, and, although no facts are alleged showing such performance or compliance with such terms and conditions, and another allegation of the complaint, with the necessary inferences arising from the leases pleaded set out therein, appears to be somewhat in conflict and contradictory of the conclusions alleged, we are of opinion the complaint was not subject to demurrer; the allegations thereof, with the necessary inferences arising from the facts alleged, rendering it indefinite and uncertain rather than insufficient; and the defect should have been corrected by a motion to make more definite and certain rather than by demurrer.
The court erred in holding otherwise, and the judgment is reversed, and the cause remanded with directions to overrule the demurrer, and for such other proceedings as are necessary in accordance with the principles of law and not inconsistent with this opinion. | [
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Mehaeey, J.
The appellee, Gibson Oil Company, brought suit against the appellant for $294.80' for merchandise and oil sold and delivered to the appellant.
Appellant answered, admitting the purchase of the merchandise and oil as set forth in plaintiff’s itemized statement, but -appellant -alleged that it had paid on said account the sum of $180, being the amount due from the appellee to the appellant on a running account for track rent or unloading charges for the cars unloaded by appellee on appellant’s spur-track, under -an agreement by which appellee was to pay the appellant $3 for each car so unloaded. Appellant offered to confess judgment for $114.80, the difference between appellee’s claim and appellant’s account against appellee.
In 18-92 the folio-wing contract was entered into between the St. Louis, Iron Mountain & Southern Railway Company and the Conway Oil & Gin Company of Conway, Faulkner County, Arkansas:
“Contract for siding or spur-track. These articles of agreement, made and entered into thi-s 4th day of June, A. D. 1892, by and between St. Louis, Iron Mountain & Southern Railway Company, party of the first part, and Conway Oil & Gin Company of Conway, Faulkner 'County, -State of Arkansas, p-arty of second part.
“Witnesseth: That for and in consideration of the sum of one dollar in hand paid to the party of the first part, by the party of the second part, receipt of which is hereby acknowledged, and stipulation and agreements herein contained to be kept and performed by the said party of the second part, the said railway company hereby agrees on their part that they mil lay, at or near Conway station, on the L. R. & F. 'S. Ry. or near 375 mile-post, the -said track to be- laid 593 feet in length, on the following terms and conditions, for the purpose of shipping cotton seed and oil.
‘ ‘ Company to furnish materials. (1) The said railway company hereby agrees to furnish, at their own cost, the necessary track materials, including rails, switch fixtures, fastenings, etc., and all labor necessary to lay said siding or spur-track in accordance with the map or plat hereto attached, showing the actual location of the same.
“Grade for siding, how done. (2) The said second party hereby agrees, on their part, to do all the necessary grading required for said siding or spur-track, in such manner as may be directed by the superintendent or engineer of the said railway company, and also to prepare the said grade to a proper surface for laying the track thereon.
“Right-of-way, how furnished. (3) The said second party hereby further agrees to furnish all the land necessary for the right-of-way for the said sidetrack, outside of the right-of-way or lands of the railway company, the said additional land to be furnished free of cost to the said railway company, and the said second party hereby further agrees to furnish, at their own cost, all the crossties and switch ties of suitable size required for the said siding or spur-track.
“Rails, etc., to be railway property. (4) It is hereby mutually agreed that all of the said rails, switch fixtures, fastenings, etc., furnished by said railway company, shall, during the existence of this agreement, and all times hereafter, be the property of the said railway company, and it is further agreed that the said second party shall have no right, title, or ownership in the said spur or sidetrack, nor in the rails or other materials with which the said track is laid, excepting crossties and switch ties which are furnished by them, which crossties, etc., they hereby agree to take up and remove from the railway right-of-way whenever the use of the track is abandoned or taken up as herein provided.
“Right to use track for other business. (5) It is hereby further mutually agreed that the sidetrack, when completed, is to be used by the said second party for the purpose of loading, unloading and shipping cottonseed and oil, with the reservation, to-wit: That the said railway company shall have the right to use the said track for their own business, or for the business of any other persons or shippers, provided that the business of the said other shippers can, in the judgment of the superintendent of said railway company, be done on the said track without serious detriment or inconvenience to the business of the said second party.”
The Missouri Pacific Bailroad Company is the successor of the St. Louis, Iron Mountain & Southern Bail-way Company, and the Conway Oil & Ice Company is the successor of the Conway Oil & Gin Company.
Appellant contends that, under the above contract, it had a right to charge appellee $3 a car for the use of the sidetrack for loading and unloading purposes. Appellant does not dispute any of the items in appellee’s account, but contends that it is entitled to a credit of $180 for the use of the spur-track by the Gibson Oil Company.
Our Constitution, among other things, provides: “All railroads, canals and turnpikes shall be public highways, and all railways and canal companies shall be common carriers.” 'Section 1, art. 17, Constitution of Arkansas.
It has been many times held that the term “railroad” includes all sidetracks necessary or convenient for the transaction of the company’s business. This was a sidetrack or spur connected with the main line of the railroad, and, while it was constructed under the contract above set out, it became a part of the system.
Section 4 of the contract provides that all of the rails, switch fixtures, fastenings, etc., shall, during the existence of the contract and at all times hereafter, be the property of the railway company, and that the second party shall have no right, title or ownership in the said spur or sidetrack nor in the rails or other materials with which the said track is laid, excepting crossties and switch-ties, which are furnished by them, which crossties, etc., they hereby agree to take up and remove from the railway right-of-way whenever the use o.f the track is abandoned or taken up, as herein provided. It will therefore be seen that the contract itself provides that the spur-track is a part of the property of the railroad company.. It has control over it.
Section 5 of the contract also provides that the railway company shall have the right to use the said track for their own business or for the business of any other persons or shippers, provided that the business of the said other shippers can, in the judgment of the superintendent of said railway company, be done on the sidetrack without serious detriment or inconvenience to the said second party.
The railroad company, in making’ the contract, evidently had in mind its duty to the public, that it was a common carrier, and that it was bound to furnish facilities to all shippers impartially. 'But, if there had been no such provision in the contract, it would have been the duty of the railroad company, whenever the public necessity required it, to permit persons other than appellant to use the track.
“The term ‘railroad’ includes all sidetracks necessary or convenient for the transaction of the company’s business, and if a railroad company controls and operates a switch or sidetrack as a part of its system, although primarily for the benefit of a particular shipper, it may be compelled to transport freight for others at points along the line where such persons have a right to ship or receive it. But, whére a switch is constructed for the benefit of a particular shipper on his land, and subsequently, under rights expressly reserved in the contract, the railroad company cancels its agreement and sells the switch to the landowner, he has the exclusive right to the use of the switch, and the railroad company cannot be required to receive the freight of others on or along such private switch of which it has not the management or control.” 33 Cyc. 637.
It will be observed from reading the above quotation that, where the spur is built for a shipper and the shipper becomes the owner outright, its ownership of that property is like the ownership of any other property. It does not belong to the railroad then and it is not a part of its system, but in all cases where the railroad company itself owns the switch or spur, and controls it, it is bound to permit the public to use it if such use is needed by the public.
It has been said: “Ordinarily a contract by a railroad company to build a sidetrack or spur-track from its main line to a private enterprise is valid, as the interest of the public cannot in any way be seriously affected by the construction of such track. But the contract will not be enforced when the public interest demands a discontinuance of the switch or spur.” 22 R. C. L. 836.
In a case in the Court of Appeals of Kentucky, involving a spur-track and the right to use the same, the court said:
“The railroad switch involved in this litigation was built by the White Stone Quarry Company, and in so doing they entered into a contract with the Louisville & Nashville Railroad Company by which it leased or hired all of the materials which went into i(t, from the railroad company, upon a stipulated rent, to be equal to 6 per cent, per annum on the value of the material furnished ; the quarry company to keep the roadway in good condition, either by doing the work itself or paying the railroad company for what it might do in this regard. Afterwards, on the 23d day o.f May, 1893, the property having passed into the ownership of the Bowling’ Green Stone Company, a new contract was made between it and the railroad company, in which all of the terms and conditions of the original contract concerning material furnished by the railroad company, and the rental therefor due from the quarry company, were recited, and further that, ‘whereas, said Bowling Green Stone Company wishes to increase its business, and has represented to said Louisville & Nashville Railroad Company that, if it should be relieved from the payment of said rent and for said repairs, it would result in an increase of traffic for said Louisville & Nashville Railroad Company: Now therefore, in consideration of the premises, the said Louisville & Nashville Railroad Company, from and after this date, releases the said Bowling Green Stone Company from the payment of rent on said material, and also agrees to keep said track in repair during the continuation-of this contract, without cost to said Bowling Green
Stone Company, reserving the right, however, to discontinue doing so, and the right to cancel this contract on 60 days’ notice in writing to said Bowling- Green Stone Company, whenever and at any time, in the opinion of the management of said Louisville & Nashville Railroad Company, the shipments from said quarries to points on and reached via said Louisville & Nashville Railroad Company’s lines are not sufficient to justify the maintenance of the track by said Louisville & Nashville Rail-' road Company. * * * .So far as this record shows, it exercises the same control and dominion over this line that it does over any other part of its system; and we think, by the terms of the contract in question, the switch, during the continuance of the contract, at least, becomes a-párt of the general system of the Louisville & Nashvillé Railroad Company. This being so, it cannot lawfully refuse to receive and transport freight belonging to appellees to and from such reasonable points along the line at which they may lawfully ship or receive it. * # * Railroad companies are g^tasLpublic corporations, created for the purpose of exercising the functions and performing the duties of common carriers. These duties are defined by law, and, in accepting- their charters, they necessarily take with them all the duties and liabilities annexed; and they are required to supply, to the extent of their resources, adequate facilities for the transaction of all business offered, and to deal fairly and impartially with their patrons. * * * And they have no right to contract with a corporation or individual to give exclusive rights to transfer any commodity over any part of their line.” Bedford-Bowling Green Stone Co. et al v. Oman et al., 115 Ky. 369, 73 S. W. 1038.
In discussing a similar question, the Supreme Court of Nebraska said:
“The facts, we think, warrant the inference that the respondent constructed the sidetrack across the intervener’s premises under at least an implied grant of a right-of-way from the intervener’s privies in estate, the then owners of the premises, and that such track now constitutes a part and parcel of the respondent’s railroad system, open alike to all requiring service thereon.” The court then quotes the section of the Constitution of Nebraska, which is substantially the same as ours, declaring railroad companies public highways, etc., and then proceeds:
“The term ‘railroad’ includes all sidetracks necessary or convenient for the transaction of the company’s business. # * * The sidetrack in question is connected with the respondent’s main line. In the absence of evidence to the contrary, taking into account the fact that it crosses the property of third parties and occupies a portion of the public streets of the city under a grant from the city, the presumption would be that it is a part of the respondent’s railroad system, and a public highway within the meaning of the constitutional provision above quoted.” Roby v. State ex rel. Farmers’ Grain & Live Stock Co., 76 Neb. 450, 107 N. W. 766.
In the contract in this case it is provided that this spur-track shall belong to the railroad company, shall be under its supervision and control. The railroad company reserves the right not only to use this spur-track itself, but reserves the right to use it for other shippers, and, as we have said before, if it did not reserve this right, the fact that it owns and controls this spur-track and is a common carrier, owing a duty to the public, if there is any public necessity, it is required to receive and transport freight for all persons who may offer it. ■
The judgment of the circuit court is correct, and is therefore affirmed.
Smith and MoHaney, JJ., dissent. | [
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Smith, J.
Appellant seeks by this s-uit to recover the sum paid by him for a thousand dollars of the capital stock of the Citizens ’ Bank of Pine Bluff and the amount of a subsequent stockholder’s liability he was required to pay by reason of the ownership of this stock.
In supp-ort of the allegations of his complaint, appellant testified that a close and intimate relationship existed between himself and appellee, who was an active vice president of the bank, and the owner of a large amount of its capital stock. Appellant desired to make a small investment, and spoke to appellee, in 1923, about the punchase of a thousand dollars of the capital stock of the bank, and, to induce this purchase, appellee represented that the bank was solvent, and, in reliance upon this representation, appellant contracted to buy and later purchased from appellee a thousand dollars of this stock, for which he paid $1,250; that the bank was at the time insolvent, and known so to be by appellee; and that, in January, 1925, the State Bank Commissioner took over the bank and required appellant, as the then owner of the stock, to pay an assessment of 100 per cent, against it, as provided by law.
Appellee admitted selling the stock, but denied mak-^ ing any false representations, in regard to its value, and stated that such representations as he did make were made in good faith and were mere expressions of his opinion, and were not made for the purpose of inducing the sale.
Certain instructions were given to which appellant excepted, and from the verdict and judgment in appellee’s favor is this appeal.
The law applicable to the issues stated was declared in the case of Hunt v. Davis, 98 Ark. 44, 135 S. W. 458, and the doctrine of that case was 'later reaffirmed in the cases of Jarratt v. Langston, 99 Ark. 438, 138 S. W. 1003; Bell v. Fritts, 161 Ark. 371, 256 S. W. 53; and Myers v. Martin, 168 Ark. 1028, 272 S. W. 856. It will not be necessary therefore to again review the law of the subject. It will suffice to determine whether the instructions given conformed to the law as declared in the cases cited.
The court gave, at the request of appellee, and over the objection and exception of appellant, an instruction numbered 6 reading as follows:
“To enable the plaintiff in this case to recover for false representations it must appear from the evidence that the defendant asserted the misrepresentations to be true of his personal knowledge, and made them with-. intent to have the plaintiff act-upon them to his injury. If defendant made such representations, honestly believing them to be true, and made them in good faith, without any intention to induce the sale to plaintiff, then the plaintiff cannot recover, and you will find for the defendant. ’ ’
This instruction was erroneous. It was not essential to a recovery for the jury to find that appellee represented the bank 'to be solvent ‘ ‘ of his personal knowledge,” and the instruction was erroneous in imposing this requirement before finding appellee liable.
The instant case is similar, under the relevant facts, to the case of Hunt v. Davis, supra, and, as the law there declared is directly applicable to the issues here joined, we make the following extensive quotation from that opinion, it being borne in mind that the alleged false representation in each case was made by an officer of the bank, whose relation thereto placed him in position to have, or in which he should have had, peculiar knowledge as to the bank’s condition. It was there said:
“The principles on the subject of fraud which are applicable to contracts for the sale of property generally apply likewise to contracts for the sale of shares of stock. In order to charge the seller with fraud, it must be shown that he has made an active attempt to deceive the buyer relative to some matter material to the contract, either by statements which he knows to be false, or by acts, conduct or representations which suppress the truth and induce in the buyer a false impression. Representations which are considered fraudulent in law must be of a nature that are material to the contract, and ‘must be made by one who either knows them to be false, or else, not knowing, asserts them to be true, and made with the.intent to have the other party act upon them to his injury, and.such must be their effect.’ Louisiana Molasses Co., Ltd., v. Fort Smith Gro. Co., 73 Ark. 542, 84 S. W. 1047. If a representation is made by the seller which he knows to be false, it will constitute fraud, but a representation will also be fraudulent, even if he had no knowledge whatever, if it is made of a matter as truth of personal knowledge. Cooper v. Schlesinger, 111 U. S. 148, 4 S. Ct. 360, 28 L. ed. 382; Kountze v. Kennedy, 147 N. Y. 124, 41 N. E. 414, 29 L. R. A. 360, 49 Am. St. Rep. 651; Cole v. Cassidy, 138 Mass. 437, 52 Am. Rep. 284.
“Although a purchaser must act with prudence and diligence in seeking the available means of ascertaining the truth, yet if the seller, having peculiar knowledge of the matter, by any misrepresentation or artifice induces the buyer to rely on his false statement, then the seller will not be heard to say that the buyer could have ascertained the truth. The very representations relied upon may have caused the purchaser to forbear from making further inquiry. If the false representations are made with the intent to induce the other party to act thereon, ordinary prudence does not require the other party to test the truth of such' representations where they are within the knowleldge of the party making them, or where they are made to induce the other party to refrain from seeking further information. Gammill v. Johnson, 47 Ark. 335, 1 S. W. 610; Graham v. Thompson, 55 Ark. 296, 18 S. W. 58, 29 Am. St. Rep. 40; Stewart v. Fleming, 96 Ark. 371, 131 S. W. 955; Evatt v. Hudson, 97 Ark. 265, 133 S. W. 1023.
“While, ordinarily, statéments of the value of property are mere expressions of opinion upon which a purchaser is not entitled to rely, yet statements of fact which affect the value of the property, if false and made for the purpose of inducing the purchaser to rely thereon, are false representations which will constitute fraud in law. False statements made of material facts relating1 to the property or condition of a corporation which necessarily affect the value of the stock (6,f such corpora^ tion are not mere expressions of opinion upon which a purchaser of such stock has no right to rely, but they are representations which will constitute fraud if, by means of sudh misrepresentations, the purchaser has been induced to 'buy such stock. Clark & Marshall, Private Corp., § 616b; 20 Cyc. 60.”
Appellant insists that, inasmuch as appellee was actively connected with the management of the bank, he cannot be heard to say that any statement made by him as to the bank’s condition was the mere expression of an opinion, and that he is liable for having made a fal.se representation if he falsely stated the bank was solvent, although in so doing he professed merely to be giving his opinion on that subject. The opinion quoted from does not go to that extent. Of course, the statement as to the bank’s condition, althoug’h expressed as a mere opinion, must have reflected the honest judgment of the officer making the statement. If, under all the circumstances, appellee was charged with knowledge that the bank was not solvent when he asserted that it was, he cannot excuse himself by saying that he merely expressed an opinion. Nor can he be heard to say that he had merely expressed an opinion, if he made a false statement of a material fact relating to the property or condition of the bank, which necessarily affected the value of the stock.
It was therefore proper, as was done in this case, in instructions given to the jury, to submit the question whether appellee had merely expressed an opinion as to the solvency of the bank, and, if so, whether that opinion reflected the honest judgment of appellee. If it did not, appellee is' liable as having made a false representation, although it was expressed in the form of a mere opinion, if appellant relied and acted upon this opinion.
The court also gave, over appellant’s objection, an instruction lettered C, reading as follows.:
“The burden of proof is on the plaintiff in this ease throughout the whole case, and must prove all the material allegations in his complaint by a fair preponderance of the evidence.”
■Specific objection was made to the use of the word “fair” as imposing the requirement that something more than a mere or bare preponderance was required.
This court-has several times condemned instructions which appeared to impose the requirement that some thing more than a mere preponderance is required to establish the plaintiff’s case, and several of these cases were reviewed in the late case of Sealy Mattress Co. v. Southern Cotton Oil Co., 167 Ark. 405, 268 S. W. 611, where it was said:
‘ ‘ There was no specific objection made to either of the rulings of the court in giving instruction No. 4 and in modifying instruction No. 2, and the objection in each instance was general. It must be conceded that the use of the word ‘clearly’ or ‘clear,’ in connection with an instruction concerning the preponderance of the evidence, is improper, for, in a trial of the issues, the burden of proof is, discharged by producing a mere preponderance of the evidence. Shinn v. Tucker, 37 Ark. 580. But a general objection is not sufficient to bring the erroneous use of these words to the attention of the trial court. This should be done by a specific objection. In the case of St. L. I. M. & S. Ry. Co. v. Sparks, 81 Ark. 187, 99 S. W. 73, the court had under consideration an assignment of error relating to the giving of an instruction by the trial court which declared the duty of the defendant to establish its defense of contributory negligence ‘by a preponderance of the testimony to the satisfaction of the jury.’ This court condemned the use of the word ‘satisfaction’ as inaccurate, but held that a general objection was not sufficient to raise the question for review on appeal. In Hays v. Williams, 115 Ark. 406, 171 S. W. 882, an instruction was, given which used the word ‘fair’ in connection with a declaration as to the duty of the party to make out his ease by a preponderance of the evidence, and the use of the word was condemned by this court, but we held that it was necessary to raise the question by a specific objection. The same principle has been announced in other decisions of this court. Morris v. Collins, 127 Ark. 68, 191 S. W. 963; Bocquin v. Theurer, 133 Ark. 448, 202 S. W. 845.”
The judgment in the case quoted from was not reversed because no specific objection was made to the use of the word, “fair,” but in the instant case a specific objection was made, and it was therefore erroneous to impose this additional requirement on the plaintiff before permitting him to recover.
For the errors indicated the judgment must be reversed, and it is so ordered. | [
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McHaney, J.
On February 16, 1923, appellee, Orby Julian, made application to appellant for a policy of life insurance, in which his mother, the appellee, Annie Julian, was to be named as beneficiary. The application consists ■of two parts: Part 1, being- the questions and answers made at the time the agents, Webb and Neustadter, took his application; and part 2, being the questions and answers thereto given to the medical examiner, which is dated February 20, 1923. Under date of February 28, 1923, the medical examiner, who had filled out part 2 of the application, made a confidential report to the company, in which he answered all the questions called for in the confidential report, in which he stated that no other person was present at the examination except him self and the applicant. Also in this confidential report he stated that the age of the applicant as given by him was 28, bnt that his apparent age was 25, and stated that he had the general appearance of a healthy person, of normal gait, without defects or deformities, without impairment of sight or hearing, or disease of skin, bones or joints. Question 31 in this report is as follows: “Q. Do you see in the appearance, manner, occupation, residence, mode or station of life of the person examined, anything which would render him in any way undesirable as a risk, or make the proposal of insurance one of speculation or over-insurance?” His answer to that question was “No.” In part 2 of the application, consisting of answers made to the medical examiner, the applicant was asked if he had had any of the list of ailments therein stated, running through the alphabet from albumin in the urine to varicose veins, and consisting of about sixty-five dise'ases, influenza not being’ one of the diseases called for, and he answered “None.” Question 22 of said part 2 is as follows: “Name all • ailments, physical injuries and surgical operations said person has had in the last ten years, giving the names of all persons who attended said person in connection therewith, together with date and address.” He answered “None.” As a matter of fact this answer was untrue, for, in the year 1918, he had had a serious case of influenza, and had been treated by two physicians in Jonesboro. This fact is undisputed.
It appeared in evidence, on a trial of the case, that appellee, Annie Julian, and her son, C. L. Julian, who is a brother of appellee, Orhy Julian, were both present at the time part 2 of the application was filled out by the examining physician, Dr. Hartwig, who himself admitted that the mother was present, but did not remember the brother being’ present, although he had stated in his confidential report that no -other person was present. Both the mother and her son, C. L., testified that the examining physician, was told, in answer to question 22, as above set out, regarding the serious case of influenza the appli cant, Orby Julian, had had in 1918, but that he stated it was not necessary to mention same in answer to said question, for the reason that it was not included in the list of diseases above mentioned, set out under question 20.
It was also .provided, in part 1 of the application, that the applicant agreed that there should be no contract unless the policy -was delivered to and accepted by the applicant while in good health, and it is further set out therein that "all statements and answers written in this application, marked part 1, as well as those made and to be made to the medical examiner in continuation hereof, marked part 2, are true and complete; that no material information or facts have been omitted therefrom, and that the same are offered to the company as a consideration for said insurance and any other or additional insurance for which policies may be issued by the company on this application. ’ ’ The application, medical examination and confidential report were thereafter mailed to the insurance company, on which it issued two policies for $1,000 each, both dated March 13, 1923, and both were delivered to the insured June 11,1923.
The policies contained the following provisions:
"Waiver of Premiums. The company will waive the payment of all premiums becoming due hereon after expiration of six months from the date of receipt by the company of satisfactory proof that the insured lias become totally and permanently disabled, as hereinafter defined, if such proof is received before the insured has. attained the age of sixty years and if all premiums becoming due hereon from the beginning of this insurance to the expiration of the aforesaid six months have been duly paid. - The payment so waived by the company will not be charged as an indebtedness against the' insured or this policy,-which will continue in full force towards maturity, with loan, cash and. other, guaranteed values increasing'and progressing from year’to year, in like manner as if the premiums were being duly and. regularly paid by the insured.
“Disability Annuity. If such proof is received by the company before the insured has attained the aforesaid age and premium payments liave been waived as herein provided, the company will, 'one year after the receipt of such proof, begin to pay the insured a disability annuity of one-tenth of the face amount hereof, and will make such annuity payments, annually on the anniversary of the first payment until the maturity of the policy, without charging* any such payments as an indebtedness against the insured or this policy.
“Miscellaneous Conditions. The total and permanent disability of the insured herein referred to must be due to bodily injuries or disease occurring* while this policy and this provision are in full force, and must be such as to prevent the insured then and at all times thereafter from performing any work or conducting any business for compensation or profit; provided that, notwithstanding proof of disability may have been accepted by the company as satisfactory, the company shall, at any time, on demand, be furnished satisfactory proof of the continuance of such disability; and if such proof is not furnished, or if it shall appear to the company that the insured is able to perform any work or to conduct any business for compensation or profit, no further premium payments shall be waived nor annuity payments made. In no event will premium payments be waived, or annuity payments made, except during total and permanent disability of the insured, as herein provided. Military or naval service in time of war is a risk not assumed by the company under any of the foregoing disability provisions.”
In the latter part of June, or the early part of July, 1923, Orby Julian, the insured, became insane. Appellant’s agents were notified of this condition, and, on March 19, 1924, Mrs. Pearl Turner, sister of the insured, wrote a letter to the appellant, inclosing a statement from the physician, regarding the condition of her brother; and again, on June 3, she communicated with appellant relative thereto, blit received no reply to either of these letters.
On September 24, 1924, appellant filed suit in the Craighead Chancery Court, Western District, in which it .sought to cancel the policies in question, on the ground that- the insured had fraudulently concealed material facts from the company in the answers to the questions in the application heretofore referred to, and in accepting delivery of the policies at a time when he was not in good health. Appellees filed an answer, in which they denied the allegations of the complaint, and a cross-complaint seeking a recovery, under the disability annuity provision of the policy, of one-tenth of the face amount thereof, $100 on each policy, together with penalty and attorney’s fees. On a trial of the case the court dismissed the complaint of the plaintiff for want of equity, rendered judgment against it on the cross-complaint for $200, $24 penalty and a $250 attorney’s fee, from which comes this appeal.
It is first contended, for a reversal of this case, that the insured fraudulently concealed from the medical examiner his illness in 1918. We do not think the preponderance of the evidence supports appellant’s contention in this regard. On the other hand, we think a decided preponderance of the evidence shows that the medical examiner was advised of the illness of 1918, and made, the statement to them that it was not necessary to report it in part 2 of the application, as it was not one of the diseases listed. This fact was positively testified to by the insured’s mother and brother, and the medical examiner himself, when asked regarding this statement, first testified that he did not remember. While he later denied this conversation, still we think his manner of testifying on this point leaves their statement about this occurrence practically undenied. But, even though it be admitted that no such conversation took place,'and that he neglected to tell the medical examiner regarding- his illness in 1918, still it does not necessarily follow that it was fraudulently done, for, at the time of the examination and the answer to the question, according to the medical examiner’s own confidential report and other evidence, he was a man in fine physical condition and a good insurable risk, without any apparent disease, either of body or mind, and appeared to be younger than he actually was. Therefore, whatever impairment of his health there might have been by the attack of influenza in 1918, he had apparently fully recovered therefrom in 1923, when he was examined for this insurance, and there is no substantial evidence in the record connecting the disease from which he now suffers with the attack of influenza in 1918. The burden is upon appellant to establish the fraud by proving affirmatively the falsity, materiality and bad faith in the representations made by the insured in the application regarding his health. Moreover, the policy provides that “all statements made by the insured shall, in the absence of fraud, be deemed representations and not warranties, and no such statement shall avoid this policy, or be used in defense of a claim hereunder, unless it is contained in said written application.” In the recent case of Bankers’ Reserve Life Co. v. Crowley, 171 Ark. 135, 284 S. W. 4, this court said:
“It is expressly agreed that the answers of the applicant copied above are representations and not warranties. In this connection it may be stated that a noncompliance with a warranty operates as an express breach of the contract of insurance, while false representations render the policy void on the ground of fraud. The questions propounded in the application as set out above call for answers founded on the knowledge or belief of the applicant, and a misrepresentation or omission will not avoid the policy unless willfully or knowingly made with an intent to deceive. Metropolitan Life Ins. Co. v. Johnson, 105 Ark. 101, 150 S. W. 393. In Mutual Aid Union v. Blacknall, 129 Ark. 450, 196 S. W. 792, it was held that knowledge affecting the rights of the insured, which comes to the agent of the insurance company while he is performing the duties of his agency in receiving applications for insurance and delivering policies, becomes the knowledge of the company; and the insurance company is bound thereby, where the agent who solicited the business was charged with the duty of asking the applicant questions concerning his physical condition. ’ ’
Hence, in this case, the knowledge of - the medical examiner was the knowledge of the company, and the policy cannot be canceled on this account.
It is next contended that the disability of the insured does not come within the terms of the policy, and it is urged -that the uncontradicted evidence shows that the insured’s physical condition is as good now as it ever was. The disability referred to in the policy is defined under miscellaneous conditions to be “the total and permanent disability of the insured herein referred to must be due to bodily injuries or disease, * * * such as to prevent the insured then and at all times thereafter from performing any work or conducting any business for compensation or profit.” While it is true that he is strong physically, it is also shown that he is totally -and permanently disabled by reason of insanity that amounts almost to imbecility, such as to prevent him from being intrusted with any responsibility. We therefore hold that he is totally ..disabled within the meaning of the policy, and that there is no substantial evidence in the record tending to show that this disability has any connection with the case of influenza he had in 1918.
It is next urged that the court erred in holding that there was any proof of disability, or that the company had waived such proof. Let it be remembered that the insured in this ease became totally and permanently insane shortly after the delivery of the policies. In the recent case of Pfeiffer v. Mo. State Life Ins. Co., 174 Ark. 783, 297 S. W. 847, we said:
“The clause of the policy with respect to giving notice of permanent disability of the insured is a condition subsequent, and, as we have already seen, should be construed liberally in favor of the beneficiary. The condition of the policy in respect to giving notice of permanent disability as well as making proof of death operates upon the contract subsequent to the fact of loss. The insured has done all that he can do towards carrying out his part of the contract, and the liability of the company under the terms of the policy has attached. Nothing remains to be done except to give the company notice of its liability and make proof thereof. If the insured has become permanently insane at the time the permanent disability attaches, it is evident that he is in no condition of mind to give the notice or make proof of his disability. Hence, if the policy in such case is to receive a liberal and reasonable construction in favor of the beneficiaries, it should be said that permanent insanity, which causes, in whole or in part, permanent disability, should operate to excuse the insured from giving the required notice. The very object and purpose of the policy, in a large part, would be defeated where the company inserted in the policy a condition which it knew that the insured could not perform in person and would not be in a state of mind to obtain its performance at the hands of others. There is nothing in the terms of the policy from which it might be said that it was the duty of the beneficiary to give the notice.”
This case cites other cases in point to this same effect, and we now hold again, in line with this and other-decisions of this court,, that insanity, obviates the- necessity of‘complying with'the conditions subsequent in-the policy, such as giving notice of .a total and permanent-disability. ' Moreover, the chancellor was■ justified-in holding' that the' notice given by the sister of the insured, together ■ with the statements of the physicians, -was • sufficient notice, and, if the company.had required a particular form of proof of .loss, it should have so advised the appellee, or his sister, of this. fact.
It is finally insisted that the court erred in allowing a $250 attorney’s fee, since there was a recovery of only $200, plus the penalty in this case, and because the statute, § 6155, C. & M. Digest, has no application in the defense of a suit brought to cancel the policy. This is something more than the defense of the action to cancel the policy. There is a cross-complaint seeking affirmative relief under the terms of the policy, and appellees have recovéred the full amount sought to be recovered on the cross-complaint. The same procedure was resorted to in the case of Bankers’ Reserve Life v. Crowley, supra, as here, being a suit in chancery to cancel the policy, and it was there held that the 12 per cent, allowed by the statute is recoverable as damages against the company for failure to comply with the contract by making payment, and that the attorney’s fee is allowed as compensation for the cost of collecting the debt, and that it may be collected in a chancery case as well as at law. We therefore hold that the statute is applicable in this. case.
On the question of the reasonableness of the fee, we are of the opinion that the fee is not excessive, although only one installment on each of the policies, which was due and payable at the time of the suit, could be - collected. The determination of this question determined also the liability of the company for future installments under this policy, and the liability on the policy for the face value thereof in case of death, without change of health. Therefore it cannot be said that only $200 was involved in the action. In Smith v. Adams, 130 U. S. 167, 9 S. Ct. 566, 32 L. ed. 895, the Supreme Court of the United States used this language:
“By matter in dispute is meant the subject of litigation, the matter upon which the action is brought and issue is joined, and in relation to which, if the issue be one of fact, testimony is. taken. It is conceded that the pecuniary value of the matter in dispute may be determined, not only by the judgment' prayed, where such is the case, but in some cases by the increased or diminished value of the property directly affected by the relief prayed, or by the pecuniary result to one of the parties immediately from the judgment.”
The case of New York Life Ins. Co. v. English, 96 Tex. 268, 72 S. W. 58, was a suit on a life insurance policy which called for the payment of the insurance in ten annual installments, commencing with the death of the insured. The insurance company failed to make payment, suit was brought to recover the first installment when due, and, while the court held that a recovery could not be had for the whole amount of the insurance, with execution to issue for the various installments as they fell due, yet it was held that “the liability of the insurance company, so far as put in issue by the pleadings, would have been determined as to the whole policy if the suit had been instituted for one installment only.”
We are therefore of the opinion that the fee allowed was not excessive, and the judgment is accordingly affirmed. | [
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Hart, C. J.,
(after stating the facts). The record shows that a public road under the charge of the State Highway Commission was changed in Crawford County so as to be laid out and constructed over the lands of the plaintiffs. The change in the location of the road wa.s made pursuant to the provisions of § 5249 of Crawford & Moses’ Digest. The petition for the change in the location of the road was made by the State Highway Commission under the provisions of § 69 of act 5, passed by a special session of the Legislature in 1923. Acts of 1923, Special Session, p. 11. Under the provisions of § 69 the State Highway Commission is authorized to call upon the county court to change or widen, in the manner provided by § 5249 of Crawford & Moses’ Digest, any State highway in the county where the State Highway Engineer deems it necessary for the purpose of constructing’, improving’ or maintaining the road.
It is first contended that the order of the county court is void because the petition for1 the change of the road was not signed by the State Highway Commission, but was signed by an assistant engineer of that department. This is not a direct attack upon the order of the comity court by appeal, but is a collateral attack upon the order made in the chancery court. Hence there is a presumption that the State Engineer had a right to sign the petition for the State Highway Department, and that he did so. Morrow v. Mock, 151 Ark. 392, 236 S. W. 610.
Again, it is insisted that the order is void because no notice was given to the landowners. This contention of the plaintiffs has been settled against them by the ruling of this court in Sloan v. Lawrence County, 134 Ark. 121, 203 S. W. 260. In the construction of § 5249 relative to the laying out or altering of public roads, it was held valid in >so far as it provides for the taking of private property by the order of the county court for a public road, without notice to the interested landowners, or a determination for the necessity thereof. The court said that the power of eminent domain may be exercised by the State without notice to the interested landowners, because the necessity of condemnation for public use is a political one, and not one for judicial determination.
The soundness- of this decision is questioned by the plaintiffs, but we will not -again review the authorities on the subject, because we consider the matter a closed one in this State. In the decision just cited the court recognized that there was a conflict in the decisions, and deliberately adopted the rule announced in the case. Two of the Judges dissented, thereby showing that the question was thoroughly considered. The rule announced in that case has been reaffirmed by subsequent decisions of the court. Burns v. Harkington, 162 Ark. 162, 257 S. W. 729; Independence County v. Lester, 173 S. W. 796, 293 S. W. 743; and Casey v. Douglas, 173 Ark. 641, 296 S. W. 705. Therefore we hold that the contention of plaintiffs, that there was no notice of the proceeding to lay out the road over their lands, can avail them nothing. The order of the county court gave the landowners, within one year after the date of the order laying out the road and entering of their lands, the right to file their claim in the county court and have ¿n assessment of damages by prescribed legal proceedings, and direct payment was to be made them ont of the county treasury.
But it is insisted hy counsel for the plaintiffs that this action permits the tailing of private property for public use without making compensation therefor, as provided in our Constitution. This- point, too, has been settled against the contention of the plaintiffs in the case of Barton v. Edwards, 120 Ark. 239, 179 S. W. 354. In that case it was expressly held that the payment for the taking of private property for the construction of a public road need not precede the taking of the property. There again it was recognized that there is a conflict in the authorities; but the court held that, while compensation must actually be made or the means provided by which it can certainly he obtained, where property is taken for -a public use by the State itself or by one of its duly authorized subdivisions, the taxable property thereof constitutes a fund to which the owner may resort in the way pointed out hy law, and the existence of a method by which payment may thus be compelled, satisfies the constitutional requirement. In one of the cases cited in the opinion it is said that the pledge of the faith and credit of the State, or of one of its political divisions, for the payment of the property owner, accompanied with practical and available provisions for securing the application of the public faith and credit to the discharge of the constitutional obligation of payment, has been held to be a certain and sufficient remedy within the law. For this reason it was held by us that compensation for the taking’ of property for a public road may be made in county warrants which are below par in value. The court pointed out that county warrants are receivable for county taxes, and the policy of the law is to give them the greatest facility of 'circulation. It is also pointed out that the landowner has a clear legal remedy to compel the levying of an appropriation of funds to pay the award. Thus it will be seen that this court has deliberately held that a statute which authorizes a political division of the State to take private property for public use, if it pro vides an adequate process for ascertaining and paying the value of such property, is constitutional. It is considered that, when an adequate fund is provided from which payment is to he made hy a political subdivision of the State, this is equivalent to actual compensation.
This view of the matter was substantially reaffirmed in Morrow v. Mock, 151 Ark. 392, 236 S. W. 610, where it was held that equity will not restrain the attempted enforcement of a judgment where the remedy at law is complete. In oases of this sort the landowner has a clear remedy at law, because he might present his claim to the county court for damages, and take an appeal from any ruling considered adverse to his interest. Under the order of the county court, the landowner was entitled to payment out of the county treasury, after the amount of his damages had been ascertained.
But it is contended that this is not a certain and safe means of payment, under the decision of Independence County v. Lester, supra, and Casey v. Douglas, supra, in the construction of Amendment No. 11. In Independence Co. v. Lester, supra, there was an affirmative showing in the record that there were no funds in the county treasury out of which the landowner might be paid. The county court, according to the pleadings and the agreed statement of facts in £he record in that case, had condemned land for a highway, and at the same time had refused to allow the landowner compensation, on the ground that the court was without authority to- allow the claim because the fiscal year had expired and the revenues were exhausted. Under the facts there stated, the landowners would have no remedy whatever. All of the available funds in the county treasury had already been used for the various running expenses of the county government under the provisions of the appropriation made by the quorum court.
Again, in Casey v. Douglas, supra, the court, in effect, held that the county court could not take the property of the landowner without first paying him dam ages, where the order contemplated that the payment of damages should he made by private individuals. The reason is that, in such case,- the faith and credit of the county is not pledged, and the record contained an affirmative showing that the damages and compensations were to be paid out of a special fund provided by landowners. In this state of the record, the taking of the land would not be proceeded with until the fund was deposited in the county treasury for the purpose of paying the damages. The mere fact that private individuals might have sufficient funds on hand, pledged to pay the damages, does not meet the constitutional requirement.
In the application of these principles, in order to invoke the jurisdiction of a court of equity, the plaintiffs must allege and prove that the annual revenue of the county from the levying and collection of county taxes is insufficient to pay the landowners, after meeting all the demands upon the general county revenue fund under the specific appropriations of the quorum court for the current year. In other words, in order to give courts of equity jurisdiction on the ground that the plaintiffs had no1 adequate remedy at law, it devolves upon them to show that there wias no sure and certain way for them to be paid. Plaintiffs did not meet this requirement by simply alleging such a fact to be true. The answer specifically denied this to be true. It is true that it contains an averment that there are'certain funds on hand out of which the payment might be made, and ■ the plaintiffs pointed out that these funds have been exhausted. These matters, however, should be shown by the proof. It is not sufficient merely to allege them. The solvency of the State and her political subdivisions is presumed, in the absence of a showing to the contrary. Zimmerman v. Canfield, 42 Ohio St. Reps. 463; Talbot v. Hudson, 16 Cray (Mass.) 431; Hill v. United States, 9 How. 386, 13 L. ed. 185; and Mills on Eminent Domain, § 126.
Hence it did not devolve upon the defendants to show that there were sufficient funds on hand in the county treasury to pay the claims of the plaintiffs for compensation, but the burden wias upon the plaintiffs to prove that there were no funds on hand in the county treasury with which to pay their claims for damages.
' Having failed to make such a showing, the chancery court- erred in restraining the defendants from proceeding to enter upon the lands, of the plaintiffs and constructing the road. Fior that reason the decree will be reversed, and the cause will be remanded, with leave to the plaintiffs to introduce proof that there were not sufficient funds on hand in the county treasury to pay their claims for damages, if they are advised to take sudh a course; and the ¡chancery court is directed to take such further proceedings as are consistent with the principles ¡of a court of equity and not inconsistent with this opinion. It is so ordered. | [
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Mehaffy, J.
The Messina Bus Line was granted a license certificate on May 31,1927, authorizing- it to operate a bus line on certain highways in the State of Arkansas, particularly from Helena to Ferguson, in Phillips County. On June 15, 1927, the Railroad Commission granteda permit to operate a taxi service to Joe Galutza, G. Centenio and Mike Messina, and the permit for taxi service provided, among- other things:
“It is further ordered that said Joe Galutza shall not operate upon a fixed schedule between fixed termini and over the route of a bus line heretofore granted or hereafter to be granted a license certificate, the intent of the Commission in issuing- this permit being that applicant herein shall not interfere with the operation of a regular bus line.”
The Messina Bus Line filed a petition before the Railroad Commission, alleging- that it had a license and permit to operate a bus line .from Helena to Ferguson and other places, and that, on the 15th day of June, 1927, the defendants were granted a permit to operate a taxi service, and it alleged that they operated their cars ahead of the Messina Bus Line schedule; they took on and discharged passengers at all points between Helena and Ferguson and return, and that the service as conducted by them seriously interferes with the operating of the Messina Bus Line Company; that the defendants have no fixed schedule, no fixed termini, and the method by which they are operating results in great damage and unfair and unauthorized .competition to the plaintiffs. :The prayer was for a hearing and cancellation of- permits granted to the defendant.
The defendants filed response, denying the material allegations of the complaint.
The Railroad Commission gave notice, and granted a hearing, and, after hearing the testimony, the Commis sion found that the defendants had violated the terms, of their permits, and made an order canceling the permit to the defendants. An appeal was taken to the Pulaski Circuit Court, where a trial was had, and the circuit court found that the order of the Railroad Commission was unreasonable, and should be set aside, and made an order setting it aside.
The Arkansas Railroad Commission filed its transcript in court, and prayed an appeal, which was granted by the clerk of this court on November 14, 1927. The Arkansas Railroad Commission did not file any motion for a new trial in the circuit court.
Appellee’s first contention'is that the appeal should be dismissed because no motion for new trial was> filed in the lower court.
■Section 21 of act 124 of the General Assembly of 1921 provides the manner in which appeals must be taken to the Supreme Court. That part of it necessary to be considered here reads as follows:
“ Appeal to the Supreme Court. — Within thirty days after rendition of any order of any circuit court under the terms of this act, whether such order be rendered on appeal of municipal council or city commission action, or Arkansas Railroad Commission action, any party aggrieved may file a motion in writing in said circuit court, or in the office of the clerk thereof, praying an appeal from such order to the Supreme Court of Arkansas, which motion, when so filed, shall be granted as a matter of right by the said circuit court or by the clerk thereof: and in such case the appeal to the Supreme Court shall be governed by the procedure, and reviewed in the manner applicable to other appeals from such circuit court, except that any finding of fact by the circuit court shall not be binding on the Supreme Court, but the Supreme Court may and shall review all the evidence and make such-findings of fact and law as it may deem just, proper and equitable. The record shall be lodged in the office of the clerk of the Supreme Court within sixty days from the rendition of the order in the circuit court, and all such. cases sliall be regarded and treated in the Supreme Court as cases involving public interest, and sliall be advanced alid given preference oil tbe docket of said court on motion of either party. ’ ’
It will be observed from the reading of this act that the party aggrieved, or the party desiring to take an appeal, takes the appeal by filing a motion in writing in the icircuit court, or in the office of the clerk of the circuit court, praying an appeal. It is necessary that this motion in writing be filed. This was not done by the appellant in this case.
It therefore appears that the appellant did not take an appeal in the manner provided by law by filing his motion in writing in the circuit court or with the circuit loletrk, and the appeal is therefore dismissed. | [
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Hart, C. J.,
(after stating’ the facts). The road laid out by the county court on the petition of J. H. P. Beed and other persons was opened and laid out on the land of Boy Nevius and others. Viewers were appointed, but no notice, as required by § 5234 of Crawford & Moses’ Digest, was given by the petitioners to Boy Nevius, through whose land said road was proposed to be laid out and established. This fact wás shown by the undisputed evidence in the record, and no attempt was made to prove that the notice required by the statute of the viewers’ meeting, was given or that Nevius waived the notice. Therefore the county court had no right to approve the action of the viewers in laying the road over the land of Boy Nevius without his consent, and the action of the county court in approving the report of the viewers was erroneous. The circuit court heard the case upon the same record as presented to the county court and affirmed the judgment of the county court. This constitutes reversible error.
The case is here on appeal, and is not like the cases of Lonoke County v. Lee, 98 Ark. 345, 135 S. W. 833, and Polk v. Road Imp. List. No. 2 of Lincoln County, 123 Ark. 334, 185 S. W. 453, where it was held that the fact that a landowner had no notice of the meeting of the viewers for the assessment of damages is an irregularity and does not affect the jurisdiction of the county court, and does not render such judgment void. In each of these oases the relief was denied the landowner because he had not appealed from the order of the county court, but had attempted to quash the order by certiorari on the ground that it was absolutely void. In each of these cases, however, the court recognized and upheld the rule laid down in Beck v. Biggers, 66 Ark. 292, 50 S. W. 514, to the effect that the notice required by § 5234 of Crawford & Moses ’ Digest is, essential, and that the failure to give it constitutes error calling for a reversal of the judgment of the county court establishing the road, where the statutory notice is not given.
Nevius did not have any notice of the meeting of the viewers, and took no part whatever in the proceedings to lay the road over his land. The exceptions filed by him to the report of the viewers did not constitute a waiver of the notice required by the statute. Beck v. Biggers, 66 Ark. 292, 50 S. W. 514.
The result of our views is that the judgment of the circuit court was erroneous because the notice required by § 5234 of Crawford & Moses’ Digest was not given, and the cause mil be remanded, with instructions to remand the case to the county court for further proceedings according to law and not inconsistent with this opinion.
It is so ordered. | [
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Smith, J.
Appellant was fined for a violation of an ordinance of the city of Blytheville requiring payment of an occupation tax to operate a taxicab service within the corporate limits of that city.
The cause was heard upon an agreed statement of facts, in which a violation of the ordinance is admitted, but it is insisted for the reversal of the judgment of the court below that the ordinance is void for the reason that there was no statute of the state authorizing the passage of the ordinance at the time of its enactment.
We said in the case of Nesler v. Paragould, 187 Ark. 177, 58 S. W. 2d 677, that “The right to enact ordinances is a power conferred on municipal corporations by legislative grant, and therefore its authority to legislate is limited to the authority found in an express grant of power, or which is necessarily implied in the express grant in order to make effective the attainment of the purpose for which the express authority is given.”
The question for decision is, therefore, whether the authority has been conferred upon the city to enact the ordinance.
This power is expressly conferred by act 239 of the 'Act of 1931, p. 748; but the city ordinance was enacted March 27,1921, which was ten years prior to the passage of Act 239.
It was said in the case of Nesler v. Paragould, supra, that “The city council has authority under § 7532 of Crawford & Moses’ Digest to regulate and license wheel vehicles kept for hire.” This section of Crawford & Moses’ Digest appears as § 9601, Pope’s Digest, and is a regulatory — and not a revenue — statute. It confers upon the cities and towns of the state the power, among others, “to regulate all carts, wagons, drays, hackney coaches, omnibuses and ferries, and every description of carriages which may be kept for hire and all delivery stables; . . '
This statute was construed and upheld in the cases of Russellville v. White, 41 Ark. 485; Fort Smith v. Ayers, 43 Ark. 82; Brewster v. Pine Bluff, 70 Ark. 28, 65 S. W. 934. It was held in these cases that the act was a regulatory — and not a revenue — statute, and that the power to regulate includes the power to license as a means of regulating, but that the license fee must be reasonable and not imposed for the sole or main purpose of raising revenue.
Now, the ordinance here in question is a revenue measure, imposing an occupation tax on various businesses for the purpose of raising revenue, and authority for its enactment must be found elsewhere than in § 9601, Pope’s Digest.
We think that authority appears and is found in § 9728,, Pope’s Digest. This section was enacted as act 294 of the Acts of 1937, p. 1045, and is entitled “An Act amending act 94 of the Acts of 1919 which permits cities of the first and second class to levy an occupation tax to include all municipal corporations, and for other purposes.” This act 94 of the Acts of 1919 was in force and effect when the city ordinance here in question was passed.
Tlie constitutionality of this act was attacked in the case of Davies v. Hot Springs, 141 Ark. 521, 217 S. W. 769; but the grant of power to tax' occupations was there upheld. A headnote to that case reads as follows: “7. Act of February 19, 1919, page 82, authorizing cities to tax occupations, authorizes the imposition of a tax, and not merely a license fee for purposes of regulation.”
That this act authorized the ordinance here in question is conceded; but it is contended that this grant of power as related to motor vehicles was withdrawn by Act 62 of the Acts of 1929, p. 137.
We do not think, however, that it was the purpose of act 62 to impair § 7618, C. & M. Digest, then in force. That section was amended by act 294 of the Acts of 1937, and, as thus amended, now appears as § 9728, Pope’s Digest; but the amendment does not change § 7618, C. & M. Digest, in any respect of importance in this case.
The case of Nesler v. Paragould, supra, (opinion delivered April 3, 1933) recognizes § 7618, C. & M. Digest, as being then in effect and as conferring power to impose a tax on the operator of an automotive vehicle for hire; but the owner in that case was held not to be subject to thé tax for the reason that his vehicle, a one-half ton truck, was used solely and exclusively for making delivery of merchandise to his customers for which no extra charge was made over and above the price charged customers who bought at his counters and themselves carried away the merchandise which they had purchased. It was there said: “It appears that the city’s right to tax motor vehicles not used for hire is limited by § 7444 (C. & M. Digest, supra), and the burden sought to be imposed upon the appellant for the use of his truck in addition to the $5 prescribed by § 7444 is invalid and cannot be sustained. ’ ’
The provision of the ordinance imposing the tax reads as follows: “Service cars for hire to public, $30 per annum.” This is not a tax of $30 upon each car owned and operated for hire, or a tax in any amount upon the car, but it is a license or occupation tax upon any one engaged in the business of operating a car or cars for hire.
In our opinion § 7618, C. & M. Digest, in force when the ordinance was passed, conferred power to pass it, and the judgment of the court below will, therefore, be affirmed. | [
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McHaney, J.
Appellants are citizens and taxpayers in Osceola & Little River Road Improvement District No. 1 of Mississippi County, and appellees are the board of commissioners of said district. The district was organized some ten years ago by an order of the county court of the Osceola District of Mississippi County, on a petition of property owners in the district, under the act of 1915, commonly known as the Alexander Road Law. Bonds were issued to the extent of 30 per cent, of the assessed value of real property within the district and construction begun, 'but the sum of money realized from the sale of bonds was insufficient to improve the roads in the district, and at the session of the Legislature in 1925 the limitation of 30 per cent, of the assessed value in the Alexander Road Law was removed by acts Nos. 99 and 215, which authorized the district, on petition of a majority of the property owners in numbers or acres, to issue bonds sufficient to complete the work of improving the roads in the district. Acting under the authority of said act 99, a majority of the property owners petitioned, and the county court made additional orders authorizing the issuance of additional bonds, which were sold and the money nsed in the construction and improve ment of the roads in the district. All of which was done prior to the passage of act 11 of the Acts of 1927, commonly known as the Martineau Road Act. The plans of the district provided for the improvement of the road from Osceola west to Little River, a distance of fifteen miles, and the construction of more than thirty miles of laterals. The main line of the road crosses several drainage canals, and the plans for the work provide for bridges to be built across said canals, which, it is alleged, will cost approximately $12,000. The improvement contem plated on the main line of this road has been completed except the construction of the bridges, and no contract was let for the construction of such bridges prior to the passage of the Martineau Road Act, but a contract has been' let therefor since that time. A contract was let prior to the passage of the Martineau Act to construct and improve the laterals, but the work thereunder has not been done, and the district seeks to issue additional bonds to construct and improve such laterals, and it is alleged it will be necessaiw to issue bonds to the extent of $90,000 in addition to a sum .sufficient to build the bridges on the main line to carry out the contract on the laterals, which had already been entered into prior to the passage of the Martineau Act; and, in addition, that it will require at least $75,000 more to improve other laterals within the district, which are necessary to the efficiency of the system of'road improvement for which the district was organized. In other words, the district desires to issue additional bonds to raise money for three purposes:
(1) For completing the work of improving the laterals embraced in the contract let prior to the passage of the Martineau Act. (2) For building the bridges on the main line for which contract was let subsequent to the passage of the Martineau Act. (3) For improving the laterals within the district for which contract was let after the passage of the Martineau Act.
The State, under the Martineau Act, has assumed the payment of the bonds heretofore issued by this dis trict, and lias taken over the main line, the road from Osceola west to Little River, fifteen miles, but has not taken over the laterals, the main line being a part of the State Highway System, but the laterals were no.t included therein.
By this action appellants seek an injunction against the commissioners of the district to prevent them from issuing any additional bonds for any purpose. Appellees filed an answer, setting up substantially the facts as heretofore stated, to which appellants demurred. On a hearing, the court sustained the demurrer as to the issuance of any additional bonds, except enough. to raise funds sufficient to pay for work contracted prior to the passage of the Martineau Act, and perpetually enjoined the road district from issuing any bonds to pay for bridges, or any work not contracted prior to the passage of the Martineau Act. From this judgment both parties have appealed.
The first question raised by counsel for appellant relates to the authority of the district to issue bonds to carry out the contract for the improving of the laterals called for in the original plans, which contract Avas let prior to the passage of the Acts of 1927. This question must be decided against appellant’s contention, as all valid contracts for road construction let prior to the passage of the Martineau Act could not be abrogated or impaired by any action of the Legislature. In Morgan Engineering Co. v. Cache River Drainage Dist., 115 Ark. 437, 172 S. W. 1020, this court said:
“It is well settled under our’Constitution that the Legislature may not pass an act impairing the obligation of a contract. The board of directors of the drainage district made a. valid and binding contract with the engineering company to furnish all the engineering sendees that would be required in the preliminary surveys, and also for the construction of the ditches required under the lernas of the act. Any law passed by the Legislature, the effect of which would be to impair the binding force of this contract, would be contrary to lire Constitution, and void. ’ ’
It is next insisted by counsel for appellant that act 99 of the Acts of 1925 is impliedly repealed by acts Nos. 11, 112 and 238 of 1927. As alreadjr stated, said act 99 removed the limit on the right to issue bonds in this district. It is conceded b3r appellant that these acts of 1927 do not expressly repeal said act 99. In the recent case of Cordell v. Kent, 174 Ark. 503, 295 S. W. 404, we said:
“The repealing’ clause in act 126 does not express^ repeal act 114. It merefy recites that all laws in conflict are repealed, and to hold that the one repeals the other we would have to say that there is such a repugnancy in the later act as that the earlier is necessarily repealed, or that the Legislature took up the whole subject-matier anew in the later act and evidently intended to enact the later as a substitute for the earlier, which we cannot do, under the rule announced. ’ ’
The rule referred to, in substance, is that a statute is repealed by an express provision to that effect, or by necessary implication, and that, where a statute is repealed by implication, there must be such a positive repugnancy between the two laws that the cannot stand together, and’ that the later statute therefore repeals the earlier; that there must be irreconcilable conflict or substituting one for the other. Without setting out the provisions of act 99 of 1925, and the several provisions of the acts of 1927, we hold that there is no irreconcilable conflict between them, such as would repeal them by implication. See Baugher v. Rudd, 53 Ark. 418, 14 S. W. 623; Nemier v. Bramlett, 103 Ark. 209, 146 S. W. 486; Ward v. Wilson, 127 Ark. 266, 191 S. W. 917; Jones v. Oldham, 109 Ark. 24, 158 S. W. 1075; Bank of Blytheville v. State, 148 Ark. 504, 230 S. W. 550.
An examination of the Acts of 1927, however, especially act No. 11, the Martineau Road Act, convinces us that it was the policy of the State, as declared in § 1 of act 11, “to take over, construct, repair, maintain and control all the public roads in the State comprising the Slate Highways as defined herein.” By § 3 the State undertook the payment of the outstanding bonds issued by road improvement districts issued for the construction of both primary and secondary roads.
Tinder this paragraph of the act the State has lifted from the shoulders of the taxpayers in this district the burden of all bonds becoming due subsequent to January 1,1927. And it is further provided, in § 3, that “all roads of the road districts referred to in this section are hereby taken over by the State, but only such portions of said roads which are now or may 'hereafter be embraced in the State Highway System shall be maintained by the State.” In other words, it was the intention of the Legislature that the State Highway Department should assume the bonded indebtedness of road improvement districts, and that thereafter it had exclusive jurisdiction to construct, repair, maintain and control all of the roads comprising the State Highway System. There is no prohibition in the several acts against the building of county roads, or roads not a part of the State Highway System, under the Alexander Road Law, and we do not understand that the Alexander Road Law has been-repealed by the provisions of the Acts of 1927. See Arkansas State Highway Commission v. Kerby, 175 Ark. 652, 300 S. W. 377.
In so far therefore as the roads in Osceola & Little River Road Improvement District No. 1 form a part of the State Highway System, its board of commissioners is without authority or jurisdiction to act or to issue bonds for the purpose of building roads, bridges or any other part of such highway. But as to those laterals or roads embraced in this improvement which do not form a part of the State Highway- System, its board of commissioners has the authority, under the lacts heretofore referred to, to issue bonds for the completion thereof on compliance with the provision of act 99 of the Acts of 1925. Therefore all contracts which the appellees have made for the construction of bridges on the main line of the road here involved, and which form a part of tlie State Highway System, made subsequent to the passage of-.act No. 11 of the Acts of 1927, were made without authority, and are void. But that all contracts made either prior or subsequent to the passage of the Acts of 3927, relating to the improvement of roads not a part of the State Highway System, are valid and binding, if made in compliance with the law authorizing same.
The result of our views is that the decree of the chancery court will be modified in the manner herein stated, and the case will be reversed, and remanded with directions to enter a decree in accordance with this opinion. | [
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Kirby, J.
Appellant brought this suit to cancel the original timber deed made- by him to the Stout Lumber Company as a cloud upon his title, and to declare a forfeiture of the rights of the grantee to the timber conveyed, and to confirm and quiet his title as against the lumber company, and from the decree dismissing his complaint for want of equity this appeal is prosecuted.
It appears from the testimony that appellant sold the timber on 160 acres of land in Calhoun County to the lumber company for $2,200 cash, and conyeyed same by his deed executed-on the 13th day of January, 1923, which recites: ‘ ‘ For and in consideration of the sum of two thousand two hundred dollars to the parties of the first part paid by the party of the second part, receipt of which is hereby acknowledged, the said parties of the first part do this day grant, bargain and sell nnto the said party of the second part, and unto its successors and assigns, all of the timber and trees on the above described lands, ten inches and over at the stump at the time of cutting. It is agreed that the party of the second part, the grantee herein, its successors, heirs or assigns, shall have the period of three years from the date of this instrument within which to cut and remove said timber from said lands, together with the privilege of extending said time for cutting and removing said timber from year to year thereafter for an additional two years upon the payment, yearly in advance, to the owner of said land, a sum of money equal to the ten per cent, of the purchase price paid for the timber as hereinabove set out, or said payment may be made to the credit of the said vendees or the then owner of said lands in the Bank of Hampton, at Hampton, Arkansas.”
The appellant testified that he had called at the bank, where the contract provided the money to be paid for the extension of time should be deposited, and was informed by the cashier, on the 14th,- that no such deposit had been received. He then consulted his attorney, and had him to notify the lumber company, by letter of Jan. 20, 1926, in which the $220 check was returned, that he claimed a forfeiture under the deed because of failure to pay the money within the time required. This letter reads as follows:
“January Twentieth, 1926.
“The Stout Lumber Company,
Thornton, Arkansas.
“Gentlemen: I am returning herewith the check for $220 which you mailed to Mr. J. L. Watson at Tinsman, Arkansas. The money was to be paid to Mr. Watson on the 13th of January, or deposited to his credit at the Bank of Hampton. Mr. Watson did not receive the money himself on the 13th, and he went to the bank on the 14th, and no money had been deposited there.
“We note that the check was dated January 12, but if it was written on that date, you evidently let it stay in your office until the 17th, as Mr. Watson did not receive the check until this week. He lives on a rural route, and, as soon as he received the check, he came down to see me; ■that is, as soon as he was able to get an engagement with me, and, after considering his legal rights, I advised him to return the check uncollected.
“Mr. Watson advises me to state further that’you ■have forfeited all rights that you have under the timber deed, and that he would like to have you advise me whether you will relinquish any further claim or whether it will be necessary to take court action to clean up his title and get things in shape so that he will not be bothered with any further claim on the part of your company as to his land, or any rights thereto.
“Yours truly.”
Appellant had not consulted his attorney about the matter until he received the check for $220, on January 18, made no objection to the payment because it was attempted to be made by check instead of money, and said: “I regarded the contract as forfeited upon the grounds that they had failed to meet the terms of the contract, therefore I returned the check, because it was their timber. They had forfeited the contract. The term mentioned in the timber deed expired on January 13, 1926. The company was” to have not to exceed two additional years, if they wanted it, by paying 10 per cent, each year in advance.” Had had no correspondence with the company about extending the time for removing the timber.
The court found that the lumber, company tendered and offered to ..pay into the registry of the court $220, being the sum heretofore tendered to the plaintiff, together with 6 per cent, interest thereon from Jan. 13,1926, and that the plaintiff’s complaint should be dismissed for want of equity, which was done.
Appellant contends time was of the essence of the contract, that the provisions for the extension of time for removal of the timber partook of the nature of an option to purchase, and that, to effect such extension, the grantee would have had to pay the $220 specified, yearly in advance, beginning before the expiration of the three year period, and, not having done so, the court erred in not holding the contract forfeit and canceling it.
The lumber company purchased the standing timber on the lands with the right to enter and remove it, paying therefor the substantial sum of $2,200. It was provided by the terms of the contract that the time for removal of the timber could be extended for two years by payment of 10 per cent, of the purchase price of the timber yearly in advance. There was nothing said in the contract about time being of its essence, nor that purchase right to the timber should be forfeited if it was not removed within the three-year period, or an extension of time effected by payment in advance of 10 per cent.- of the purchase price.
It is also undisputed that the appellee wrote its letter, dated on the 12th day of January, 1926, inclosing its check of same date for $220 in payment for the extension of time, the day before the three-year period for removal of the timber expired, and, although the letter, for some unexplained reason, did not appear to have been mailed until the 17th and did not reach appellant, grantor, until the 18th, he had made no complaint of any failure to receive notice of an intention to extend the time or the money for such extension, nor had he manifested any intention of declaring the contract forfeit because the money had not been paid sooner than it was received by him.
In 17 R. C. L. it is said:
“Where, as is frequently the case, agreements carry within themselves a provision for the extension of the time for cutting and removing, it is difficult to lay down rules for* their construction, as. the question in each case must depend upon the terms of the contract.”
In 10 R. C. L. it is said:
■ “The doctrine of equity being not forfeiture, but compensation, the most vital question in determining whether a court of equity will grant relief against a penalty or a forfeiture may be said to be the ability and willingness of the party in default subsequently to perform the condition or make compensation for his failure of performance. * * * On account of the impracticality of laying down any definite rule or principle by which it is to be determined whether compensation can be made when the breach consists in something more than the payment of - money, it has been stated by some courts that equity will only grant relief against a forfeiture where the condition broken was for the payment of money, this holding being based on the principle that the allowance of interest for the delay forms a certain rule of compensation and is equivalent to payment at the day. * * * In such cases, where compensation can be made, and in the absence of circumstances making such action clearly inequitable, relief (that is, relief against forfeiture) will be granted almost as a matter of course.” (Section 77).
The purchaser. of the timber, with the right to remove it, had paid a substantial consideration, the amount required by the seller, and owned it, till the expiration of the time allowed for removal. He had also paid for the privilege of an extension beyond the three-year period for removal, for two years, upon the further payment of 10 per cent, of the purchase price of the timber yearly in advance. He certainly was the owner of the timber during the three-year period granted for its removal, and could continue his right to the removal of his property for another two years upon compliance with the terms of the contract, and unless he forfeited such ownership and right by the failure to comply with the terms of the contract. Here was an attempt made to pay the money required to be paid in advance before the expiration of the three-year period and an actual delivery of the money specified for such extension within five days after the expiration of the first period for removal, and also before any complaint of the failure to pay the money sooner, or any intention to declare the contract forfeit for its not having been paid, was made. Not only so, but the grantee came into court upon the grantor’s suit for cancellation of the deed and forfeiture of the timber, and renewed his tender of payment of the money required for the yearly extension.
This suit is not one asking relief against a penalty or forfeiture, but one by the grantor invoking the powers of equity to declare a forfeiture, which equity is said to abhor. The doctrine of equity is not for forfeiture, and the most vital question in determining whether a court of equity will grant relief against a penalty or forfeiture is said to be' the ability and willingness of the party in default subsequently to perform the condition or make compensation for his failure of performance. The appellee herein not only attempted to pay the money “nominated in the bond” or contract, but actually delivered it to the appellant within five days after the expiration of the first period designated for the removal of the timber, and before the appellant had indicated any intention of declaring a forfeiture for its noncompliance, and, in his answer to the complaint for forfeiture, alleged his willingness and ability to perform the condition or make compensation for his failure of performance, and tendered the money necessary therefor.
We think that this provision of the contract for an extension of the time for removal of the timber was more than a mere option to buy where the consideration is only paid for the time in which to do something else necessary to effect the purchase, the grantee herein having already purchased and paid for the timber, with the right to remove it, and partakes rather of the nature of a condition subsequent, and that, under the circumstances of this case, the payment of the money specified in order to secure the extension for one year, within five days after the expiration of the three-year period designated for its removal, and before any notice by the grantor of an intention to declare a forfeiture, was a substantial compliance with the condition relating to the extension, amounting to the payment yearly in advance within the meaning of the contract.
The decree is accordingly affirmed. | [
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McHaney, J.
This is a suit by appellee to foreclose a materialman’s lien on lot 17, block 1, Riff el & Rhoton’s Forest Park Highlands Addition to the city of Little Rock, the property of appellant, Maible Morehart. She was jointly sued with her husband, B. F. Morehart, but she alone is prosecuting this appeal,'
On or about the. 18th. day of February, 1926, B. F. Morehart, who was not at the time living with his wife, Mable Morehart, purchased a bill of lumber from appellee with which to build -a house on the above described lot, without any authority from his wife so to do. The material was charged to B. F. Morehart, and was sold and delivered to him, without any consultation with her, and without her knowledge and consent. A short time before the lien expired the agent of appellee asked her for a description of the property, and she gave it to him, and the agent testified that he filed a lien on the lot without giving any notice to her, as provided in the lien statute.
Another agent of appellee testified that, after about 20 months after the sale of the material, and after suit had been filed and judgment entered against the defendants, he went to «appellant and offered to sell the property back to her for $50 cash and the balance on monthly payments, and that she offered $5 a week. Appellant testified that she was the owner of the property in her own right, and that she and her husband were not living together at the time the lumber was purchased; that the first she'knew of the lumber being purchased was on returning home from work, she saw the lumber on the lot; she got in touch with her husband, and was advised that he had bought the lumber; that she told him she didn’t want a house on her property, and he said that it didn’t make any difference what she wanted — that he was going to build a house, and that he would pay for it. She also testified that she telephoned the office of appellee and directed them to get the lumber off of her lot, that she didn’t want a house there. She later moved into the house with her husband, where she lived for about three months, and separated again, and has not lived in the house since; that it is worth about $50; that she didn’t want it, but wanted the lumber company to move it. She also testified that she was not served with a notice before the lien-was filed, and that she had never given her husband authority to.have a house built, or to improve her property in any way.
The court entered a decree foreclosing the lien in , the sum of $137.63, directed the property to be sold, and same has been sold, at which sale appellee became the purchaser.
We think the decree of the chancery court is wrong. In the first place, there was no contract between appellee and the owner of the lot, or her agent, for the purchase of said material, as provided by § 6906, C. & M. Digest. In order for a material furnisher or laborer to have a lien upon the property, it must be “under or by virtue of any contract with the owner or proprietor thereof, or his agent,” etc. This is the plain language of the statute. It is admitted that appellee had no contract with appellant for the furnishing of this material. It is undisputed that the contract was with the husband of appellant, and it is nowhere shown that he was the agent of appellant, with authority to bind her in the purchase of this material. The fact that she saw the material on the lot and knew that her husband was building this house is not sufficient to imply a contract on her part to pay therefor, and there is no testimony in the record to show that she ever agreed to pay for it. There is no alleg*ation in the complaint that B. F. Morehart was the agent of appellant, and there was no proof sufficient to establish this agency.
In the case of Hoffman v. McFadden, 56 Ark. 202, 19 S. W. 753, 35 Am. St. Rep. 101, this court decided th& exact questions now under consideration against the contentions of appellee here. It-was there held that, under the statute creating a lien for work done or materials furnished in making improvements on real property, the lien exists only where the labor is performed or materials furnished under a contract, express or implied, with the owner of the land, or with his agent, trustee, contractor or subcontractor, and'that the husband has no power to make a contract to improve his wife’s property so as to create a mechanic’s lien thereon, unless he had the power and authority to contract for her as her agent; and it was further held that such authority cannot be implied because of the relation of husband and wife, or from.the fact that he assumes to manage her real estate, nor could the agency be inferred because of her knowledge that he is causing improvements to be erected upon her property. In that case, quoting the language of the court, “the 'building erected was located only about 40 feet from a house occupied by the defendant and her husband. She witnessed the progress of the work, and gave some directions to the carpenters as to the manner of executing it. Her husband had expressed a desire to - have the building so constructed that she would be pleased with it, and one of the witnesses testified that ‘she was present every day, and had the work done to suit her. ’ But it is not shown that she manifested any greater interest in the improvement than a wife would usually take in the building of a house upon land belonging to her husband and put up so near to the place of her residence. Nor does it appear that there was any greater deference to her wishes in the plan of the house than is commonly shown by a husband in causing a similar work to be done at bis own expense. The contract for the work was made with the husband, and the labor of the carpenters, was all paid for by him. All the materials purchased from the plaintiff and others were procured on the husband’s order, and, for aught that appears to the contrary, they were sold entirely on his personal credit. The defendant testified that she objected to the erection of the house for reasons which she states; and in this -respect her testimony is supported by that of two other witnesses. She also states that her husband was not authorized to act as her agent, and that she was not consulted about the contract for the improvement, and .had no knowledge of its terms.”
The facts in the above case are very much stronger against the wife than those in the present case, as will clearly be seen, from the statement of facts heretofore made.
In the second place, there was no notice served upon the wife, as provided by § 6917, O. & M. Digest. This statute requires the giving of ten days’ notice before the filing of the lien to the owner or his agvent, that he holds a claim ag'ainst such building or improvement, setting forth the amount and from whom the same is due, and providing that it may be served by any officer authorized by law to serve process in civil actions, or by any person who would be a competent witness. This court has held that this statute must be substantially complied with. (Conway Lbr. Co. v. Hardin, 119 Ark. 43, 177 S. W. 408), and that the ten days’ notice must be given. Doke v. Benton Lbr. Co., 114 Ark. 1, 169 S. W. 327, 52 L. R. A. (N. S.) 870. But the question is waived unless raised in the trial court. Whitcomb v. Gans, 90 Ark. 469, 119 S. W. 676.
In this .case, however, the answer raised this defense, and- alleged that no notice had been given appellant of appellee’s claim of lien. This is a complete defense to the action, even though B. F. Morehart might be said to be the original contractor for his wife in erecting such house. Appellee, not having made any contract with appellant for the furnishing of material, but, with her husband, even conceding him to be his wife’s contractor, would be required, under the law, to give the ten days’ notice before filing its lien on her property.
For the errors indicated the judgment will be reversed, and the cause remanded, with directions to disr miss the complaint as to appellant, Mable Morehart, for want of equity. It is so ordered. | [
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McHaney, J.
Appellant has correctly stated the case as follows:
“On January 5, 1925, the Citizens’ Bank of Pine Bluff, Arkansas, was found to be insolvent, and the Bank Commissioner, Charles McKee, took charge of its affairs, and appointed C. A. Fullinwider, special deputy, in charge. On the same day the bank and the directors thereof entered into a contract with five other banks' of Pine Bluff for sufficient money to pay all depositors, etc., not exceeding $2,300,000. The assets of the Citizens’ Bank, including the money borrowed, were turned over to the Bank Commissioner for the purpose of liquidating the affairs of the Citizens’ Bank. All local depositors were taken care of by the five banks, but the intervener’s (being a nonresident, and not being located) deposits remained in the hands of the commissioner. The Bank Commissioner complied with the statutes in giving the various notices, but the intervener did not make proof of her cláim or demand payment until August 26, 1926, when same was refused.
“Intervener claims that the contract supersedes the statute of limitations as set out in § 722 of C. & M. Digest and amended by § 5 of the act 627 of the General Assembly of 1923. Appellants contend that payment is prohibited by the provisions of the above statute, and that the contract does not prevent the running of the statute of limitations; that the fund obtained by the Citizens'’ Bank and its directors was not a trust fund, but only for purpose of paying* the depositors, etc., in accordance with the law, the same as if no funds had been borrowed.
“The chancellor found that the one-year statute of limitations for presenting* and making proof of her claim and the additional six months for filing'suit after her claim was rejected did not apply, and that the intervener, Doshia 'Simpkins, is entitled to recover, and from that decree the 'Bank Commissioner has appealed.”
The only question for our determination is whether the appellee is barred by the one-year statute of limitations, as contained in. § 722, C. & M. Digest, as amended. by § 5 of act 627 of 1923. A part of this section is as follows:
“The commissioner shall cause notice to be given by advertisement in such newspapers as he may direct, weekly for four consecutive weeks, calling* on all persons who may have claims against the said estate, to present the same to him and make legal proof thereof, at a place and at a time to be fixed by the said commissioner in said notice. At or after the expiration of said time the commissioner shall give, either personally or by depositing in the mail, a further ten days’ notice to all creditors who have not yet then proved their claims and whose names and addresses are known to him. No claim shall be allowed unless proof thereof has been presented to the commissioner within one year from date on which the commissioner takes over the assets of the liquidated bank. If the commissioner doubts the justice or the validity of any claim, he may reject the same and serve notice of such rejection upon the claimant, either by depositing the same in the mail or personally. An affidavit of the service of such notice, as also of any .such ten days’ notice, which shall be prima facie evidence thereof, shall be filed with the commissioner. An action upon a claim so rejected must be brought within six months after such service.”
She did not present her claim within that time. She in fact presented it about six months later, and the Bank Commissioner, although having the money in his brands which had been turned over to him by the five other banks in Pine Bluff for this purpose, declined to pay same, and refused her claim, on the ground that he was prohibited from so doing by the above statute.
This act of 1923 amended and changed the banking laws of this State in many respects. The above section, which is quite lengthy, and too long to. set out in full herein, prescribed the procedure for the commissioner to take in winding up the affairs of an insolvent bank in the ordinary way, that is, where he takes over the assets and liabilities and proceeds to liquidate it by collecting the assets, turning them into cash, and paying its debts. It provides for the payment of dividends on the claims filed from time to time as cash is accumulated in his hands for this purpose. In such a case it would be necessary for the Bank Commissioner to determine, within a reasonable time, what the provable claims against the bank were, in order that he might make distribution of the funds by way of dividends. The statute of limitations, as fixed in the act, therefore very properly applies to such a case, as otherwise the Bank Commissioner would not know the amount of dividends he might declare and pay at any given time. But the facts in this case are wholly different. Here the Bank Commissioner is not proceeding under the statute to liquidate the affairs of the Citizens’ Bank of Pine Bluff, but by virtue of a contract between it and the other five banks in Pine Bluff. Funds to the extent of the total deposits in the bank were turned over to bim for the express purpose of paying all depositors. It was not contemplated that dividends would be declared and paid to the depositors from time to time until the assets of the bank were exhausted, but each and every depositor became immediately entitled to the full amount of his deposit on demand. Appellee, being a nonresident, did not know of the insolvency of the Citizens’ 'Bank, and received no notice from the Bank Commissioner directing her to file her claim. The exact amount of her deposit was shown upon the books of the bank, and he knew she was a depositor and entitled to the sum allowed her by the court in this action. The concluding sentence in the above section of the act of 1923 reads as follows: “The commissioner may pay over any such unclaimed deposits or dividends when the same are claimed within apt time, as aforesaid, to the person respectively entitled thereto, upon evidence satisfactory to himself or upon order of the chancery court.”
This clause has no particular application, except that it shows that there is some discretion left to the commissioner and the court to pay unclaimed deposits, even after the time provided for. That part of the contract between the Citizens’ Bank and the other five banks in Pifie Bluff which is peculiarly apropos here reads as follows:
“At the request of the parties of the first part, the parties of the second part have agreed and do hereby agree to lend to the Citizens’ Bank of Pine Bluff such amount as may be necessary, together with the cash which said Citizens ’ Bank has on hand, to pay all deposits, bills payable, outstanding drafts, acceptances and current bills of said Citizens’ Bank, not exceeding $2,300,000, the proceeds of such loan to be used for said purposes and as may be agreed upon and directed by the said parties of the second part. The Citizens’ Bank of Pine Bluff hereby agrees to repay to the parties of the second part the amount so loaned, on demand, with interest thereon at the rate of six per cent, per annum from date until paid. ’ ’
'By taking charge of the Citizens’ Bank the same day the above agreement was made, the money was turned over to the commissioner for the purposes indicated, and in accepting it he became a trustee, whose duty it was tb apply the funds received by him to the purposes of the trust. It is not claimed that the fund has been exhausted by the payment of deposits and other liabilities of the bank, so that this claim cannot be paid, but, on the contrary, it is admitted that the Bank Commissioner has in his hands the funds with which to pay .same. It could not lawfully be paid to any one else, and the manifest justice and equity of the case is that it be turned over to her.
We are therefore of the opinion that the statute of limitations has no application to the facts in this case, and that the Bank Commissioner is under the same duty to pay this deposit on demand as the Citizens’ Bank of Pine Bluff would have been had it not been taken over by the Bank Commissioner. The judgment of the chancery court is'therefore correct, and it is affirmed. | [
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Smith, J.
Appellant, Ida M'oncus Lee, gave birth to a child without being married, and, following its birth, she became delirious, and remained so for several days. Upon recovering consciousness she told her father, R. E. Moncus, that appellee, Fred Lee, was the father of the child. The following day Mr. Moncus took his rifle, and, accompanied by his son, Oce Monlcus, drove to the home of Jim McDaniel, who was his brother-in-law and an uncle of appellant. The three drove some miles in an automobile to Lewisville, to a garage where appellee was employed. Upon reaching the garage the three men left the car, and Mr. Moncus, with rifle in hand, walked up to appellee and told him that he had ruined his daughter, who had given birth to a child, and that he would have to go and give the baby a name. Appellee asked Mr. Moncus if his daughter had said that he was the father of the child, and Moncus replied that she had. Appellee then said, “I am ready.” No other conversation occurred between the parties, except that McDaniel had been crying, and said to appellee, “Grod damn you, I will kill you.”
E. T. Laster, who is a justice of the peace, testified that he observed that something unusual was happening, and that he went to the garage, and, upon arriving there, he said to Mr. Moncus, “Eichard, do not be rash; you have .enough trouble,” and Moncus answered, “Uncle Bob, I am not going to do any wrong; all I want is for Judge (a nickname by which appellee was known) to give that baby a name.”
As the parties got in the car, appellee said that he would like to change his clothes, and he was driven to the house where he roomed. Appellee’s nephew, Howard McClendon, was at the McClendon home when the party arrived, and appellee and McDaniel went to appellee’s room. Nothing was said while they were there, but McDaniel kept his hand in his bosom until they left. The services of a minister had been secured, without appellee’s knowledge or consent, and the minister was waiting at the office of the county clerk when the party arrived there. Appellee procured from the clerk a marriage license, and paid the fee therefor with a check drawn by himself. The party then entered the car, and drove twelve miles to the home of Mr. Moncus. Appellee was placed on the front seat, and Mr. Moncus, with his rifle, sat on the rear seat. When the party arrived at the home of Mr. Moncus, appellee said that he wanted to speak to appellant, and for about five minutes he was in the room with her alone, but during that time Mr. Moncus stood near the door with his rifle. McDaniel and Oce Moncus were present in the house.
Appellee told the minister that he was ready, and the party went into the room where appellant was lying in bed. The minister directed appellee to take appellant’s hand, and he did so, and the ceremony began, when the minister observed that appellee had released appellant’s hand, and he again told appellee to take her hand. When finally the minister asked appellee if he would take appellant as his wife, there was a perceptible pause, but appellee answered “I will.”
The minister testified that he was aware that an unusual ceremony was being performed. He saw Mr. Moncus had his rifle, but no demonstration was made with it. About fifteen minutes after the ceremony, appellee, without having any further conversation with his bride, asked to be carried back to town, and this request was complied with. Appellee did not pay the minister for his services, and was not asked to do so. Appellant testified that she had not seen appellee since the wedding.
Appellee brought this suit for divorce, alleging as ground therefor that he had married appellant under duress, and, in support of that allegation, offered the testimony set out above.
Appellant testified that she knew nothing of any duress, and that she supposed appellee had consented to marry her to right, in part, the wrong done her, as she also testified that appellee had seduced her'under a promise of marriage. The granting of the divorce was opposed upon the ground that there had been no duress.
Mr. Moncus testified that all he asked appellee to do was to give the baby a name, and that he had his rifle for the purpose only of defending himself in the event appellee assaulted him.
Mr. McDaniel admitted that he was armed, but he testified that was a deputy sheriff, and had his pistol because he had certain papers to serve, and that he went along to keep the peace. He admitted, however, that he went with appellee to appellee’s room, but stated that he did this because he did not know but that appellee would icome out with a gun, and he knew there would be bad times if he did so. He admitted cursing appellee at the garage, but said he did this because of his indignation, and that he did not threaten to kill appellee or to do him any violence.
The testimony did not show that either the gun was ever pointed at appellee or that McDaniel ever drew his pistol.
It appears that, when the party entered the automobile, the sheriff was standing by, and it is insisted that, if appellee was unwilling to marry appellant, lie liad only to call the sheriff for protection.
A decree was granted appellee, and for the reversal of that decree it is insisted that duress was not shown, and, if so, that appellant was not a party to it.
We think duress was very clearly shown. Appellee testified that he offered no 'protest, as he feared he would he killed had he done so, and we think his fears were well founded. From the testimony set out above it appears very highly probable that, if there had not been a wedding, there would have been a funeral. It may be true that appellant was not cognizant of the duress. Indeed, her physical condition at the time of the wedding strongly indicates that she was not, but it was not essential that she should have been.
In Nelson on Divorce and Separation, vol. 2, § 622, page 592, it is said:
“It is immaterial from what source the threats emanate, or who is the active instigator o'f the proceedings at law which constitute the duress. If others have so frightened the complainant that his consent is involuntarily given — ‘a yielding of his lips, but not of his mind’ — the marriage is voidable for want of consent. If the woman was ignorant of the actions of her friends in procuring his consent by duress, this would not render the marriage valid. The lack of consent is vital in all cases of duress, and therefore the complicity of the other party or her ignorance of the duress is immaterial.” See also Marks v. Crume (Ky.), 29 S. W. 436.
In the case of Honnett v. Honnett, 33 Ark. 156, 34 Am. Rep. 39, it was held that, if one, having seduced a woman, marries her through fear of the'natural- and probable consequences of his crime, it would not, in the absence of force or threats of bodily harm at the time, be such duress as would avoid the marriage, and appellant insists that the testimony here shows nothing more; but we do not concur in this contention. We think the testimony very clearly shows such duress as warranted the court below in finding that the marriage was not a vol untary act on the part of the appellee, and that there has been no subsequent ratification thereof on his part. Fowler v. Fowler, 13 Ala. 1088, 60 Sou. 694; Sheppard v. Sheppard, 174 Ky. 615, 192 S. W. 658; Marsh v. Whittington, 80 Miss. 400, 40 Sou. 326; Cooley’s Tiffany on Domestic Relations (3d ed.), page 13; Simmons v. Stevens, 132 La. 675, 61 Sou. 734; 1 Bishop on Marriage, Divorce and Separation, § 538, page 231; Bassett v. Bassett, 9 Bush (Ky.) 696; Willard v. Willard, 65 Tenn. 297, 32 Am. Rep. 529, 2 Schouler on Marriage, Divorce, Separation and Domestic Relations (6th ed.), § 1149, page 1408; 18 R. C. L., chapter Marriage, § 38.
The decree of the court below is therefore affirmed. | [
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Conley Byrd, Justice.
Appellant Ollis Heard was convicted of burglary and grand larceny in connection with the breaking and entering of the Broadway Shoe iShop, 525 East Broad Street, Texarkana, Arkansas, and the taking and carrying away of certain property therefrom. For reversal he relies upon the following:
“The trial court erred in admitting into evidence certain statements allegedly made by the defendant as a result of custodial interrogation because such statements had been made prior to the defendant’s having been taken before a magistrate, without his having been informed of his right to remain silent, without his having been warned that any statement might be used against him, without his having been informed of his right to consult with a lawyer and to have a lawyer present during an interrogation, without his having been informed that a lawyer would be appointed to represent him if he were unable to employ one and because the alleged statements were made under duress and pressure.”
The record shows that a warrant was outstanding for appellant’s arrest and that when the officers first attempted to apprehend him he ran, notwithstanding two warning shotgun shots. He was finally apprehended the same day in a marshy area behind the Ritz Motel by officers from both Texarkana, Arkansas and Texarkana, Texas. When he was taken into custody by Lt. Thurman Quisenberry, he was suffering from a buckshot wound inflicted by Max Tackett, Chief of Police of Texarkana, Arkansas. Immediately upon arrest he was fingerprinted and taken to a doctor for treatment of the wound (in the nature of a pump knot). Appellant was then jailed until around 1:00 p. m. the next day, when he was taken to Chief Tackett’s office. There appellant signed a statement showing that the Miranda warning (Miranda v. Arizona, 384 U.S. 436 [1967]) had been given and his rights thereunder waived. He also signed eleven other typed statements connecting him with eleven burglaries in the city of Texarkana.
The Miranda warning consisted of twelve mimeographed questions on legal-size paper, with space between each question for the answer. The record shows that answers were inserted and the statement signed by appellant and witnessed by Max Tackett and Thurman Quisenberry. The other eleven statements were taken by typing the question and then the answer. Appellant’s signature on each statement was witnessed by the officers present at the time.
Under our statutes, failure to take an arrested person before a magistrate before interrogating him does not vitiate a confession so obtained. Paschal v. State, 243 Ark. 329, 420 S. W. 2d 73 (1967).
Regarding the Miranda warning, appellant contends that it was nothing more than a preliminary ritual to the police’s interrogation and that the record shows appellant incapable of reading and comprehending the prepared questions. In this connection Porter Eastland, appellant’s third grade teacher, testified that appellant was unable to read and write. Substantially the same testimony was given by Whitaker Allen, Jr., appellant’s seventh and eighth grade coach. Mott H. Mosely, principal of Booker T. Washington High School, testified that in his opinion appellant was unable to read and write. The latter opinion was based on appellant’s scholastic record and not on any personal observation by Mr. Mosely.
Appellant says that when he was taken to the fin-gerpcinl room on the day of his arrest, Lt. Quisenberry got angry and reached for a club, “something like a nightclub,” and that while Lt. Quisenberry was doing this, Chief Tackett kicked him. He asserts that before he was taken to the doctor he was forced to sign some statements which he couldn’t read. Appellant also says that when he was brought to the Chief’s office the day after the arrest, they handed him some papers and the Chief began reading to him; and that after Chief Tack-ett read this thing to him, the Chief told him “there wasn’t no need of me trying to hold back anything, that I might as well go on and clear everything up, and he handed me some more papers and things, and told me to sign them.” Appellant says that he can only write and spell his name but cannot read.
On the Motion to Suppress, during appellant’s interrogation by the court, the following occurred:
“Q All right, go ahead with what you were about to tell me. You were about to tell me what scared you into signing the statements the second day, I believe.
“A He told me to go ahead on — that I might as well to go on and sign them. I don’t know what it was. He was reading something; I don’t know what it was, and then he mentioned that I had already signed the papers, so I went on and signed them then. I don’t know how many there was. There wasn’t too many, and then he read this other statement off. He read that off to me then, and he said, ‘We’ve got yon now.’
“Q This was Chief Tackett talking all the time yon say ‘he?’
“A Yes, sir.”
The officers testified they personally knew appellant, he having been arrested before. They denied any abnse of appellant and explained that the Mirawda warning was given by handing appellant a copy of the questions they proposed to ask him. In addition they read and explained the questions to him before they put the paper in the typewiter and started typing his answers to each specific question. As appellant responded, the officer would type the answer before proceeding to the next question. After the questions were completed, the sheet was removed for signatures. The same procedure was followed with the other statements, except that the questions were typed as they were asked.
With respect to the language used in the answers, Chief Tackett explained as follows:
“. . . then I read each question as I came to it, and asked him if he understood what it said. And then I wrote down exactly what he told me. Now, I didn’t just say yes or no, or uh-huh. When he said, ‘ITh-uh,’ or ‘Uh-huh,’ or ‘Yeah,’ I said, ‘Now, tell me exactly what yyu mean. ’ And for instance, on this first answer to the first question, ‘Yes, I understand that I do not have to give any statement. ’ I nailed him down to that very thing before I quit it, and I did that on each occasion, on each case.”
When, we consider appellant’s previous experience with the law, and compare the answers he gave in the statements with those he made in open court in response to questions from the lawyers and the trial court, we find that the evidence is sufficient to sustain the trial court’s finding that appellant voluntarily made the confessions after having been fully advised of his constitutional rights and having knowingly waived the same.
Notwithstanding his inability to read, the record refutes any inability to comprehend the questions asked. It may be true that the officers did some editorializing in writing down appellant’s answers, but this is not an uncommon problem in recording answers, and we do not find the discrepancies of such character as to make a material difference.
Nor can we find any merit in the contention that the Miranda warning should have been given anew each time the officers questioned appellant about a different burglary. The record shows that the questioning was continued after the warning was given, with only brief interruptions.
Affirmed.
Bnowrr, J., not participating. | [
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John A. Fogleman, Justice.
This is the second appeal of this case. On the first appeal, the conviction of Shaddox of the offense of assault with intent to kill was reversed because of the refusal of the trial court to grant a mistrial for impropriety in the cross-examination of appellant by a special prosecutor. On the first trial, appellant’s punishment was fixed by the jury at five years imprisonment. Upon retrial, appellant was again found guilty of assault with intent to kill, hut the jury was unable to agree upon the punishment. The trial judge then sentenced appellant to three years in the State Penitentiary. Appellant asserts as reversible error: (1) the court’s instruction and form of verdict stating the applicable sentence to be not less than 1 nor more than 21 years; (2) refusal of a mistrial because of a statement by a special prosecutor in closing argument; (3) denial of a directed verdict or, in the alternative, reduction of the charge to a misdemeanor. We will discuss these points in the order listed.
I
Appellant argues that the fixing of his punishment on the -first trial amounted to an acquittal of any and all punishment over and above 5 years imprisonment and that subjecting him to the possibility of punishment in excess of that term amounts to double jeopardy. Since the length of the sentence imposed was actually 2 years less than that imposed by the jury on the first trial, appellant was not prejudiced, even if appellant should be right in his contention. Error in the giving of an instruction on a higher degree of an offense than is justified is rendered moot when the jury convicts a defendant of a lower degree. Willis v. State, 221 Ark. 162, 252 S. W. 2d 618. The analogy is so close that the same rule is properly applicable to both cases.
II
Not only did appellant elect not to testify in his own behalf on the new trial, but he offered no admissible evidence whatever. In the closing argument, the special prosecutor made the following statement with reference to the intent of appellant:
* * Now, how could even, how could these fine attorneys for the. defense reasonably argue to you that he did not intend to inflict serious harm upon Younes, he said he did. He said ‘Johnny, Blankety-blank I’ll kill you.’ And nobody has attempted to explain that away, in fact, I guess they couldn’t.”
Objection and motion for a mistrial were based on the contention that this amounted to a comment on the appellant’s failure to take the witness stand.
This court has held many times that such remarks as were made here do not constitute a comment on the defendant’s failure to testify. In Davis v. State, 96 Ark. 7, 130 S. W. 547, a prosecutor’s remarks that the defendant had told two witnesses how he had administered medicine to produce an abortion, followed by the statement that, “* * * it is undisputed and undenied and he cannot deny it,” were expressions of opinion as to the weight of the testimony of the witness which could not be construed as a reference to the fact that the defendant had not testified. In Culbreath v. State, 96 Ark. 177, 131 S. W. 676, a statement that a defendant had never seen fit to say where he was on the day of a murder and that he had not shown by anyone where he was at the time, was held not to be a comment on the defendant’s failure to testify. A statement by a prosecuting attorney asserting that a conversation by a defendant was unexplained and undenied by anyone and calling on “them” to explain it, if untrue, was held to be an expression of opinion that the testimony, not being rebutted, should be accepted as true and not a comment on the failure of the defendant to testify. Davidson v. State, 108 Ark. 191, 158 S. W. 1103. When a prosecuting attorney referred to a coat of an alleged accomplice which had been found in a defendant’s car and asked, “What explanation have they made of that?”, this Court said that this argument was not a comment on the defendant’s failüre to testify. Cascio v. State, 213 Ark. 418, 210 S. W. 2d 897. In Edens v. State, 235 Ark. 996, 363 S. W. 2d 923, also a case where the defendant offered no proof, a statement by a prosecuting attorney in closing argument that the State’s evidence was undenied was said to be a contention that the testimony should he believed because it was uncontradicted.
¡
These Remarks called to the jury’s attention the impact of appellant’s statement as evidence of intent and as contravention of the theory of self-defense raised'by him. Clyde Loftin, who was present during .the entire encounter, told of this statement by appellant. No witness, other than Younes and Loftin, testified relative to appellant’s remarks. The argument in question relates, to appellant’s statement and the argument of his attorneys, which would have inevitably presented the facts and inferences which they thought would justify the theory of self-defensfe and indicate a lack of the element of intent on the part of appellant. We find no error on this point. Perry v. State, 188 Ark. 133, 64 S. W. 2d 328, Bridgman v. State, 170 Ark. 709, 280 S. W. 982, Starnes v. State, 128 Ark. 302, 194 S. W. 506, Lee v. State, 73 Ark. 148, 83 S. W. 916, and Evans v. State, 221 Ark. 793, 255 S. W. 2d 967, cited by appellant, are distinguishable. In some of these cases the attorney for ¡the prosecution had stated that the defendant himself had failed to deny certain testimony. In others the prosecutor stated that the defendant had failed to give certain testimony. In others the prosecuting attorney, in argument, had addressed to the jury or to the de-
III
No useful purpose would be served by outlining the evidence in this case. It is substantially the same as we found sufficient to sustain a conviction on the previous appeal. We again find it sufficient. Appellant’s alter nate request that the court reduce the charge to a misdemeanor was also properly refused. The trial judge instructed the jury thoroughly as to the elements necessary to constitute the crime nf assault with intent to kill. He also defined and distinguished the crime of aggravated assault or assault with a deadly weapon. The determination of appellant’s intent was a question of fact for the jury. The principal argument advanced by appellant on this point is that on this trial Younes admitted not only that he was willing to do whatever was necessary to take the money appellant owed him even if that included doing Shaddox bodily harm, hut that he thought that Shaddox thought that he so intended. Of course, it was the province of the jury to determine under all the facts and circumstances of this case whether appellant intended to kill Younes, or only inflict bodily injury; whether any considerable provocation for his action appeared; whether appellant acted in a sudden heat of passion upon sufficient provocation; whether Shaddox was acting without fault or carelessness in defending himself from assault by Younes; whether it appeared to Shaddox that the degree of force used by him was reasonably necessary in repelling such an assault; whether he was justified in believing that the danger of bodily harm at the hands of Younes was imminent and impending; whether he acted under the influence of reasonable fears, or in a spirit of revenge; and whether appellant acted with due care and circumspection. All these matters were submitted to the jury under proper instructions and have been resolved against appellant.
Finding no prejudicial error, the judgment is affirmed.
Byrd, J., dissents. | [
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Hart, C. J.,
(after stating the facts). According to the. evidence for the defendant, the soliciting agent of the insurance company had full knowledge of the fact that he was working part of the time as a freight brakeman and part of the time as a passenger brakeman at the time the policy was applied for by him and issued by the company. It was his duty to explain fully his occupation, and the notice to the soliciting agent, became the knowledge of the company. American National Ins. Co. v. Hale, 172 Ark. 958, 291 S. W. 82, and cases cited; Bankers’ Reserve Life Co. v. Crowley, 171 Ark. 135, 284 S. W. 4; and Old Colony Life Ins. Co. v. Julian, 175 Ark. 359, 299 S. W. 366.
Chapman testified that he told the soliciting agent of the plaintiff that he was working both as a passenger and as a freight brakeman at the time he applied for the insurance. He is corroborated in this testimony by another witness who was present, land no denial thereof is made by the soliciting agent. Chapman then had a right to assume that, when the company issued the policy and delivered it to him, he was properly classified as a passenger brakeman under its terms. It is true he was injured while starting out on a freight run, but this was only a temporary change, and he was still in the service of the railroad company as a passenger brakeman just as he was when the policy was issued. He stated in his proof of loss that he was injured while working on a freight train. This put the company upon notice of that fact, and, not withstanding this, it paid him under his classification as a passenger hrakeman. Under these circumstances it can-' not be said that the payment was made under a mutual mistake. Chapman thought that he was entitled to be paid as for an injury to a passenger brakeman, and that he had been properly classified as such when the policy was issued. Neither can it be said that the payment was made under mistake on the part of the company, coupled with fraudulent conduct on the part of Chapman. It is not claimed that he was guilty of any fraudulent conduct. At least there is no proof whatever tending to show such to be the fact. So far as the record discloses, Chapman acted in the utmost good faith throughout the whole transaction.
'The contention of the plaintiff is that the payment was made because of a mistake on its part due to its ignorance of the facts, entitling it to avoid the policy. In discussing a question of this sort in National Life Insurance Co. v. Minch, 53 N. Y. 144, the court said:
“A policy of insurance is an. executory contract. The time for insisting upon the breach of any warranty contained in the original application was when the claim was made for the execution of the contract. Mere ignorance of a fact which might have enabled the company to defend an action upon the policy on 'account of such breach is not such a mistake of fact as will enable it to recover back the money. It will be presumed that the company either knew the fact or intended to waive any such defense, and voluntarily paid the money. Otherwise there would be no end to controversy and litigation, and the party receiving the money would hold it subject to a lawsuit until the statute of limitations intervened. ’ ’
This rule has been applied according to varying facts in other cases. Smith v. Glen’s Falls Ins. Co., 62 N. Y. 85; Stache v. St. Paul Fire & Marine Ins. Co., 49 Wis. 89, 5 N. W. 36, 35 Am. Rep. 772; and Kansas City Life Ins. Co. v. Blackstones (Court of Civil Appeals of Texas), 143 S. W. 702.
The plaintiff was. not induced to issue the policy because of any fraud practiced upon it, and it does not claim it was induced to make the payment to the defendant because of any misconduct on his part. It had notice of facts which, if pursued with ordinary diligence, would have led to a full discovery of everything connected with the issuance of the policy. Hence it cannot urge that it made the payment by mistake on account of lack of knowledge.
It follows that the judgment of the circuit court was 'correct, and it will therefore be affirmed. | [
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Lyle Brown, Justice.
Mrs. Bettye Piles, appellee, filed this suit to establish her right to the use of a driveway between her home and the home of appellants, Mrs. Lucille Duke Rochelle and Mrs. Clyde Duke. The trial court held that Mrs. Piles had acquired an easement by right of prescription. Mrs. Rochelle, the fee owner of the disputed strip, challenges the sufficiency of the evidence. Mrs. Duke, mother of Mrs. Rochelle, was apparently made a party because of her having occupied the property since 1884.
The parties reside in Waldron on Old Danville and Waldron Road which runs east and west. Mrs. Piles and Mrs. Duke, both widows, have been neighbors since 1924. Running north and south, and near the western edge of the Rochelle property, is a driveway which provides access to both homes. The chancellor found, and we think correctly so, that prior to the turn of the century a public way existed, running from Danville Road north and between the litigants’ properties. Farmers used the lane to haul their cotton to a cotton yard located north of the present location of the two homes. The cotton yard was abandoned, apparently around 1912, and a fence was placed across the north end of the lane. The location of the driveway in dispute is identical with the south end of the cotton yard road.
Mrs. Duke’s father built a home on the Duke property around 1884 and Mrs. Duke has lived there for the past 82 years. For many years the lane was fenced on both sides and down to Danville Road. As far back as she can remember, the lane was used by her family and by the Piles family and their predecessors in title. That was true until 1966 when Mrs. Duke caused the lane, or driveway, to be enclosed within the bounds of the Duke-Rochelle property. That action precipitated this lawsuit.
Mr. and Mrs. Piles obtained title to their property in 1924. Their predecessors in title had lived on the property since at least 1907. The only access to their home has been the disputed driveway. Mrs. Piles testified their vendor represented that the driveway was included in their purchase. (A survey was introduced to sustain that contention but we think the court was correct in holding the true survey line to be just west of the driveway.) Mrs. Piles testified that she had no knowledge of any claim by Mrs. Duke or Mrs. Rochelle to the driveway until the present dispute arose. Over the years the Pileses made substantial improvements to their property. A patio, garage apartment, and a tenant house — all serviced by this driveway — were constructed. At their expense the Pileses replaced a wooden culvert, asphalted the driveway in about 1952, and in 1960 they had it seal-coated.
On the other hand, Mrs. Duke testified positively that to her personal knowledge every owner of the Piles property — including Mr. and Mrs. Piles — sought and obtained permission to use the driveway. She was corroborated by her daughter, Mrs. Rochelle, as to these occupants of whom she had recollection. They recited a number of instances in which both Mr. and Mrs. Piles tried to prevail on them to sell them the driveway property. Mrs. Piles denied knowledge of any such conversations.
In the transcript are two depositions which, if admissible, wonld support appellants’ theory of permissive use. We are convinced that the trial court never saw those depositions. Counsel for appellant thinks we should consider them and counsel for appellee made no objection. Here are the chronological facts pertinent to the depositions:
1. At the close of the testimony on June 17 it was stated that the evidence was concluded “except for two depositions to be taken by agreement.”
2. On June 22 the trial court entered his findings which contain this statement:
“On the 13th day qf June, this cause came on and was presented for hearing, and after hearing of the evidence and proof submitted on June 13, 1967, the cause was continued to June 17, 1967, for further proof and hearing, and was then continued, after June 17, 1967, until June 22, 1967, for the filing of depositions of the defendant; and on this 22nd day of June, 1967, the matter is finally submitted to the court. . .”
3. Subsequent to the entry of final judgment on June 22, two depositions were filed, one on June 23 and the other on June 28. One was taken in Texas on June 21, and the other in California on June 26.
4. The depositions were inserted by the clerk in the transcript and abstracted.
In the first place, we look to the wording of the final judgment and point up the phrase “and was then continued until June 22 for the filing of depositions.” The only logical interpretation of the phrase is that the trial court allowed five days — from June 17 to June 22 — to file the interrogatories which were being taken by agreement. Nine months had elapsed since the first hearing in the ease and Jnne 22, so ample time had been available for the taking of depositions. Counsel knew, or should have known, that the trial court had not considered the depositions. Upon ascertaining that fact a motion should have been filed to set aside the judgment and reconsider the case in light of the depositions filed subsequent to the decree. There is nothing in the record to show why that was not done and we cannot consider any reasons advanced which are extraneous to the record. That is particularly true in light of the trial court’s statement that the cause was continued until June 22 “for the filing of depositions.”
We conclude that counsel acted in utmost good faith; in fact, the discrepancy between the dates of the decree and the filing of the depositions probably was not called to their attention. However, we are concerned here with a precedent that may well come back to haunt us, that is, the evaluation by this court of testimony that was never presented to the trial court. This court has held that an agreed statement of facts merely filed with the clerk cannot be considered here. Evans v. Davidson, 207 Ark. 865, 180 S. W. 2d 127 (1944). In Morrison v. Heller, 183 F. 2d 38 (1950), appellants placed additional documents in the record which were not considered by the trial judge. On appeal, the documents were ordered stricken on the ground that their acceptance would make a complete new trial. “Litigation would otherwise be interminable,” said the court. The case of Foster v. Graves, 168 Ark. 1033, 275 S. W. 653 (1925), was by this court reversed and dismissed. On rehearing appel-lee filed an affidavit of one of appellant’s material witnesses, in which the witness repudiated his testimony. This court said the affidavit could not be considered to determine the correctness of the chancery court’s decision — “the record made in the court below must furnish the sole test.” By analogy, the two depositions were never considered by the trial court in making its decision; therefore we should not consider them in passing on the merits of the case.
We revert briefly to the testimony in the case. A host of witnesses were called. Surveyors testified about the land lines but that testimony need not be summarized. A number of witnesses testified about the long and continued use by both families, their tenants, service men, visitors, deliverymen, and friends. In fact appellants concede that “both of the parties, their friends and tenants have used the driveway without interruption for forty years until just prior to the commencement of this action.” However, appellants contend that a public easement was not shown and “it is therefore incumbent upon the plaintiff to show an adverse and hostile use by herself or predecessor in title. This we submit she has not done.” The chancellor discounted the theory of mere permissive use and held that Mrs. Piles and her predecessors in title had become vested with an easement by right of prescription. This brings us to the legal requirements for the establishment of a prescriptive easement by Mrs. Piles over the driveway.
This court has many times dealt with the acquisition of passageways over land. The general rule is that a passageway over unenclosed lands is presumed to be permissive. On the other hand, as said in Fullenwider v. Kitchens, 223 Ark. 442, 266 S. W. 2d 281 (1954: “This court, however, in dealing many times with acquisition of passageways over land, has recognized what might be deemed a variation or exception to the rule before mentioned.” One exception, which we consider here applicable, was stated in McGill v. Miller, 172 Ark. 390, 288 S. W. 932 (1926):
“It is true that the use originated as a permissive right and not upon any consideration, but the length of time which it was used without objection is sufficient to show that use was made of the alley by the owners of adjoining property as a matter of right and not as a matter of permission. In other words, the length of time and the circumstances under which the' alley was opened were sufficient to establish an adverse use so as to ripen into title by limitation. Clay v. Penzel, 79 Ark. 5, 94 S. W. 705; Scott v. Dishough, supra; Medlock v. Owens, 105 Ark. 460, 151 S. W. 995.”
In the Fullemvider case, the Kitchens farm -was located off the public road. For 35 years the occupants of the Kitchens lands traversed a passageway across the Fullenwider lands to get to the highway. That use started as a permissive one but the continuous use of the passageway for so long a period by all who had business at the Kitchens farm created a presumption that the usage was adverse. That usage was held to have ripened into a vested right.
In McGill v. Miller, supra, the parties lived on different lots in the same block in Little Rock. The only convenient means. of access to their respective homes was an alley. The alley was not dedicated; it consisted of a strip back of the properties which the owner originally kept free of obstructions. This court held that since the neighbors had used the alley for some nineteen years as their only means of ingress and egress, the original owner had no right to close the strip and prevent its use.
Some of the other cases in which the factual situations and the court’s conclusions comport with the chancellor’s ruling in this instance are Salzer v. Balkman, 234 Ark. 209, 351 S. W. 2d 422 (1961); Scaife v. Coleman, 239 Ark. 427, 389 S. W. 2d 884 (1965); and Barbee v. Carpenter, 223 Ark. 660, 267 S. W. 2d 768 (1954).
On the question of permissive use, the facts are con-cededly close. The testimony on each side was as opposite as the poles. When viewed numerically it may be meritoriously argued that it favored appellants. On the other hand, an experienced chancellor saw and heard the witnesses in an extended proceeding. In view of his advantageous position, and when considered in light of all the circumstances, we cannot say his findings were against the greater weight of the evidence.
We find no merit in appellee’s argument that the true dividing line on the east is near the center of the driveway. We also agree with the chancellor that the portion of the old lane north of that area which had been maintained and blacktopped has long been abandoned.
The decree of the chancellor is in all respects affirmed.
Harris, C. J., and George Rose Smith, J., dissent. | [
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Smith, J.
This action involves the title to the north half of the southwest quarter land the southeast quarter of the southeast quarter of section five, township two south, range four west, lying in the Northern District of Arkansas County.
The Northern Road Improvement District was organized under special act No. 247, passed at the regular 1919 session of the Greneral Assembly (Special Road Acts 1919, page 1071, volume 1), and benefits were duly assessed under the authority of the.act against all the lands in the district, including the lands above described. The taxes were not paid on the above-described lands for the year 1921, and both tracts were duly returned by the collector of taxes as delinquent on April 11, 1922. Thereafter suit was brought by the district to enforce payment of the delinquent taxes, and on February 13, 1923, a decree was rendered foreclosing the lien of the improvement district for the 1921 taxes, and the lands were ordered sold by a commissioner appointed for that purpose.
This suit was brought under the authority of § 13 of the act creating the district, which provides that the county collector shall not sell the land returned delinquent for the nonpayment of the improvement taxes, but shall report such delinquency to the board of commissioners of the improvement district, who, after adding a penalty of 25 per cent., are required to enforce payment of the delinquent taxes by proceeding in the manner provided by §§ 23 and 24 of act 279 of the Acts of 1909 (Acts 1909, page 829), but it was there provided that the landowner might redeem his land at any time within five years from the time “when his lands have been stricken off by the commissioner making the sale.”
Section 23 of the act of 1909, Supra, provides that the proceeding to enforce payment of delinquent taxes shall be in the nature of a proceeding in rem, and by § 24 of that act it is provided that if, at the sale by the commissioner, no one offers to bid the taxes, penalty, interest and costs due on any tract of land, the ‘ ‘ commissioner shall bid the same off in the name of the said board of directors, # * * bidding therefor the whole amount due as aforesaid, and shall execute his deed therefor, as in other cases under this act, conveying such land to such * * * board.”
On April 5, 1923, pursuant to the decree of sale, the lands above described were offered for sale, and, there being no bidder therefor, the same were struck off to the road improvement district, and a certificate of purchase was issued to it. This sale was duly reported to and confirmed by the chancery court, and the commissioner was directed to execute deeds to the vai’ious purchasers at the .sale.
On April 5, 1925, the commissioners of the improvement district assigned its certificate of purchase to J. E. Duncan, and on January 5, 1926, a commissioner’s deed was duly executed to Duncan as such assignee, and on April 24, 1926, Duncan conveyed the lands to appellant, J. R. Crowe,- who now claims title thereto by virtue of such deed.
. Appellee, Security Mortgage Company, is the owner of the original title to the lands here in controversy, and in January, 1927, brought this suit to redeem from the sale for the 1921 taxes and to cancel the deed to appellant Crowe as a cloud on its title. The court granted the relief prayed, but held that, inasmuch as Crowe and Duncan had redeemed the lands from separate decrees of sale for other taxes, appellant Crowe was entitled to a lien on the lands for the amount expended to effect these redemptions, and from that part of the decree there was no appeal (Turley v. St. Francis County Road Imp. Dist. No. A 171 Ark. 939, 287 S. W. 196), but Crowe has appealed from that part of the decree holding that the right of redemption from the 1921 sale existed.
, The act of 1919 creating the improvement district provided, as has been stated, that the proceedings to enforce payment of the delinquent taxes shall be in accordance with the procedure provided by act 279 of the Acts of 1909, but that the owner 'Should have the right to redeem at any time within five years from the date of sale. Later, by act No. 223, passed at the 1921 session of the General Assembly (Acts 1921, page 296), the period of redemption was shortened to two years, and the validity of this last-mentioned act was upheld by this court in the case of Northern Road Imp. Dist. v. Meyerman, 169 Ark. 383, 275 E. W. 762, which case arose under a commissioner’s sale made under the authority of special act No. 247 of the Acts of 1919, supra.
At the 1925 session of the General Assembly, act No. 346 was passed (Acts 1925, page 1033), extending for a period of three years, in addition to the time then allowed by law, the right to the landowner to redeem, and it was the opinion of the court below that this act applied to the sale here in question, and gave the owner the right to redeem at the time that application was made. The court below was also of the opinion that, as the act creating the improvement district did not, in express language, authorize the commissioners of the district to sell lands struck off to it by the commissioner, it could not assign the certificate of purchase nor otherwise dispose of any lands struck off to it.
The court below was also of the opinion that the right of redemption existed because of the noncompliance with the provisions of act No. 445 of the Acts of 1923 (General Acts 1923, page 395), entitled “An act to require additional publicity to tax sales of lands and sale of land for local improvement assessments.”
Section 1 of this act provides that: “When any lands are sold under the decree of chancery court for delinquent taxes or assessments levied by any special or local improvement district, * * * the clerk of said court shall, within ten days after the filing in his office of the report of the court’s commissioner making any such sale, prepare and file with the county clerk of the county in which the lands are situated, a certified list of the lands so sold; said list to contain a description of each tract under which the same was sold, the name of person or persons in whose name each tract was assessed and sold, the date of the sale, the name of the purchaser of each tract at such sale, and the amount of taxes, including penalty and costs, for which each tract was sold.”
It was the opinion of the court below that the statute limiting the right of the delinquent owner to redeem Ms property from the sale did not begin to run until this statute had been complied with, and that, inasmuch as there had been no compliance with this statute, the right of redemption had not been barred.
The first question presented is that of the right of the improvement district to assign the certificate .of purchase issued it under the decree foreclosing the lien of the district for the unpaid 1921 taxes. • "We think the district had this right. The act creating the district imposed upon the commissioners the duty of collecting all delinquent assessments, and they were required to institute suits for this purpose, and the act provided that, if no bids were offered for any particular tract of land, the same should be struck off to the commissioners for the amount of the taxes, penalty, interest and costs, and, if a redemption was not perfected within the time limited by law, a fee-simple title vested in them for the use of the district.
If thereafter these lands were not required to bear their proportionate part of the burden of the cost of the improvement, the burden on other lands not delinquent would necessarily be increased until the full amount-of the betterment, assessed against such lands would be required to be levied against them in order that the obligations of the district might be discharged. This could be avoided only by selling the lands as the district acquired them, in order that they might again be placed on the taxbooks and thereafter bear their proportionate part of the .cost of the improvement.
In reviewing previous decision on this question in the case of Chicago Mill & Lbr. Co. v. Drainage Dist. No. 17, 172 Ark. 1059, 291 S. W. 810, it was said:
“It was pointed out in those cases that the lien of the district continued until the taxes were paid, or until the lands themselves were acquired by the district through sales for the nonpayment of the taxes, and that, when the delinquent taxes were paid, they became available, and should be used in paying the ohligations of the dis trict; and further, that, if the lands were sold to the district, and not redeemed, then the entire value of the lands to be realized by a sale thereof would be available for this purpose. So that, while a delay would be entailed in obtaining and applying revenues from the delinquent lands, these revenues would finally be obtained and applied, and thus no unequal burden would be imposed. ’ ’
In the case of Blanton v. Jonesboro Bldg. & Loan Assn., 176 Ark. 315, 3 S. W. (2d.) 964, it was expressly held that an improvement district might sell, for such sum as it could obtain, lands the title to which had been acquired by the district through a sale to it for delinquent taxes, even though the act creating the district did not expressly confer that power.
So therefore it must follow that the improvement district had the right to assign certificates of purchase for lands sold it for a sum not less than the taxes, penalty, interest and costs for which the lands were sold. Therefore when, on April 5, 1925, the commissioners of the district assigned the certificates of purchase issued to them to Duncan, under the sale made April 5, 1923, pursuant to the decree of foreclosure, Duncan acquired the same rights he would have acquired had he himself been the original purchaser at the commissioner’s sale.
As we have said, it was the opinion of the court below that the right to redeem existed under both act 346 of the Acts of 19'25 and act 445 of the Acts of 1923; but we do not concur in the view that either act gave that right.
Act 346 provides that the time for redemption of any land upon which default has been made in the payment of improvement district-taxes shall be “extended for a period of three years in addition to the period of redemption heretofore fixed by law for the redemption of lands for the nonpayment of such annual assessment in any and all improvement districts.” This act was approved April 1, 1925, and on that date the improvement district had not assigned the certificate of .pur chase issued to it on the sale made by the commissioner on April 5, 1923, and that certificate was not assigned until April 5, 1925, which was just two years after the date of the sale. If therefore act 346 was in effect as a law on the date of its approval,- the period of redemption was extended; as it might have been, inasmuch as the certificate of purchase on that date was outstanding in the name of the district. We have held that, while the period of redemption may not be extended after there has been a sale to an individual, as such legislation would impair the obligation of the contract arising out of the sale (Northern Road Imp. Dist. v. Meyerman, 169 Ark. 383, 275 S. W. 762; Smith v. Spillman, 135 Ark. 279, 205 S. W. 107, 1 A. L. R. 136; Hogg v. Nichols, 134 Ark. 280, 204 S. W. 211), such legislation is valid where the sale was to the district itself, as no contractual right arose in the latter case. Walker v. Ferguson, 176 Ark. 625, 3 S. W. (2d.) 694.
The amendment to the Constitution submitted as Amendment No. 13, and commonly referred to as having that number, was in effect when act 346 of the Acts of 1925 was passed by the General Assembly (Brickhouse v. Hill, 167 Ark. 513, 268 S. W. 865), but it contained no emergency clause, and it did not therefore become effective, under Amendment No. 13, until ninety days after the final adjournment of' the session at which the act was passed. Fenolio v. Sebastian Bridge Dist., 133 Ark. 386, 200 S. W. 501; Arkansas Tax Commission v. Moore, 103 Ark. 48, 145 S. W. 199.
Before the expiration of this ninety-day period the two years allowed by act 223 of the 1921 session for redemption from- sales had expired. Northern Road Imp. Dist. v. Meyerman, supra.
It is true, as we have said, that act 346 of the 1925 session had been approved at the time the commissioners of the improvement district assigned to Duncan the certificate of purchase, and it was the theory of the court below that, as this act had been approved, all persons must have known that ninety days after the adjournment of that session the right of redemption would he extended for a period of three years, and that parties purchasing lands held by an improvement district were bound by such notice, and, having taken the lands with notice that the time of redemption would be changed, they stand in the same relation they would have been in if they had taken the assignment after the act went into effect. But this does not follow. No rights could be predicated upon act 346 until it became a law, and prior to that time all parties had the right to contract under the then existing law.
In the case of St. Louis, I. M. & So. Ry. Co. v. Roddy, 110 Ark. 161, 161 S. W. 156, the facts were that Roddy was killed by the defendant railroad-company three days after the amended lookout statute was passed (act No. 284, page 275, of the Acts of 1911), and an instruction was given at the trial of the suit of his administrator for damages for his death, based upon this statute. This was held to be error, for the reason that the statute contained no emergency clause, and did not become a law until ninety days after the adjournment of the session at which that act was passed.
In the case of Thompson v. State, 151 Ark. 369, 236 S. W. 608, the facts were that the General Assembly had passed a special act detaching territory from one school district and attaching' it to another. The act contained no emergency clause, and it was held not to apply to the action of the school directors, who, after the passage of the act, but before it became a law, tore down and removed a school building from the detached territory.
In the case of Gaster v. Dermott-Collins Road Imp. Dist., 156 Ark. 507, 248 S. W. 2, the electors in a road improvement district undertook to hold an election under the provisions of a special act which did not become effective until ninety days after the adjournment of the session of the General Assembly which had passed it, for the reason that it contained no emergency clause, and the election was there held to be premature and void. It was there s'aid: “Since the emergency Clause was not attached to the act showing the existence of an emergency, the act was the subject of a referendum under Amendment No. 7 of the Constitution, supra, and did not become operative until ninety days • after the Legislature adjourned.”
So here we conclude that, as act 346 of the Acts of 1925 did not contain the emergency -clause, it was not a law for any purpose until ninety days after the adjournment of the session of the Legislature at which it was passed, and did not therefore prevent the operation of act 223 of the Acts of 1921, supra, then the law barring all rights of redemption within two years from the date of the commissioner’s sale, as the act of 1921 provided. Under the 'act of 1921 the right to redeem expired April 5, 1925, and act 346 did not become a law until after that date. See also Wilkes County v. Coler, 180 U. S. 506, 21 S. Ct. 458, 45 L. ed. 643.
As it is conceded that the provisions of act 445 of the Acts of 1923, supra, were not complied with, it remains to determine what effect this failure had on the sale here under review.
It may be first said that there is nothing about the act of 1923 to indicate -that it was intended to have a retroactive effect, and the presumption is, of course, to the contrary. So strong is this presumption that (to quote a syllabus in the case of Mosaic Templars of America v. Bean, 147 Ark. 24, 226 S. W. 525), “all statutes are to be construed as having only a prospective operation, unless the Legislature expressly declares, or otherwise shows a clear intent, that it shall have a retroactive effect.”
This act of 1923 was approved March 20, 1923, which was prior to the date of the commissioner’s sale, which, as we have said, occurred April 5, 1923, and it contained an emergency clause which sufficiently declared an emergency to make the act immediately effec- ■ tive under the original I. & R. amendment, commonly referred to as Amendment No. 9. But this amendment had been superseded by the later initiative and referen dum amendment, herein referred to as Amendment No. 13, under which last-named amendment it was required that a separate vote he taken upon the emergency clause, and that this clause receive a two-thirds vote of all the members elected to each house of the General Assembly.
We take judicial notice of the records of both branches of the General Assembly, and we thus know that no separate vote was taken on the emergency clause contained in the act, and, this being true, the act did not immediately go into effect. Road Imp. Dist. No. 16 v. Sale, 154 Ark. 551, 243 S. W. 825. It did not therefore become effective as a law until ninety days after the adjournment of the session at which it was passed, and prior to that time the commissioner’s sale was made, and the act did not apply to that sale, as it was not retroactive in its operation.
In the case of Foster v. Graves, 168 Ark. 1033, 275 S. W. 653, it was held that the fact that a separate roll-call was not had on the emergency clause did not invalidate the statute, hut only rendered that clause inoperative. So that, while act 445 was valid, notwithstanding the emergency clause was not, it did not, through the lack of a valid emergency clause, become a law until after the commissioner’s sale had been made, and, for this reason, did not apply to that sale, as the act of 1923 was not retroactive in its operation.
We conclude therefore that the court was in error in canceling the deed of the commissioners to Duncan, based upon the commissioner’s sale, and also the deed from Duncan to appellant Crowe, and in according the original owner the right to redeem from the sale under which they claim, as that right was barred under act 223 of the Acts of 1921, supra. Northern Road Imp. Dist. v. Meyerman, supra.
It appears that appellee expended the sum of $312.42 in the redemption of the lands here in litigation from sales for the 1922 and 1923 taxes, and it should be reimbursed for those expenditures.
The decree of the court below will therefore be reversed, and the canse dismissed in so far as the cancellation of the deeds from the commissioners to Duncan and from Duncan to appellant is concerned, but a decree will be rendered in favor of appellee for the amount of the 1922 and 19'23 taxes, with the interest thereon, and a lien therefor will be declared in its favor, to be enforced by appropriate orders of the court.
Kirby, J., dissents. | [
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Smith, J.
Appellee C. C. Watts filed a suit against C. E. Castle, which he denominated a “Petition to Quiet Title.” The pleading did not contain allegations entitling plaintiff or petitioner to the relief prayed. The defendant, Castle, did not demur to this pleading, but filed an answer, averring that the pleading did not state facts entitling the petitioner to the relief - prayed or to any relief. A cross-complaint was filed by Castle, in which he prayed the cancellation of certain conveyances hereinafter referred to. Castle alleged that he had acquired title to the land in question under a decree foreclosing a mortgage executed to him by John I. Barnes. It does not appear what title Barnes had. The deed of the commissioner, based upon this foreclosure, was dated September 22, 1930.
An intervention was filed by W. T. Mills, which presents for decision the question decisive of this litigation.
Upon these pleadings testimony was heard, from which it appeared that, after obtaining the deed of the commissioner of the court upon the foreclosure of the mortgage above mentioned, Castle abandoned the land; but, if this be not true, he failed to pay the general taxes due thereon for the year 1932. The land was sold to the state. There were three parcels of the land, described as follows: Pt. NE14 SW1^ section 3, T. 14 N., R. 15 W., 6.50 acres; Pt. SE14 NW1/^ section 3, T. 14 N., R. 15 W., 24 acres; Pt. NE% SW^ section 3', T. 14 N., R. 15 W., 18 acres. The land was sold and certified to the state under these descriptions, and was purchased by and conveyed to T. F. Baxter by the State Land Commissioner under these descriptions.
A prospective purchaser sought Mills’ assistance in acquiring the title to this land. This prospective purchaser abandoned his efforts to buy the land, but there began a voluminous correspondence between Mills and Castle which eventuated in a contract whereby Mills agreed to perfect the title to the land for one-half thereof, or for one-half of the proceeds of the land, if it were sold.
In the performance of this contract, Mills procured a quitclaim deed from O. M. Young and wife to himself to the land. What, if any, interest Young had in the land does not appear. In the further attempt to perform the contract, Mills filed suit against Baxter to cancel the deed that Baxter had obtained from the State Land Commissioner, but that litigation was compromised by the execution to Mills of a quitclaim deed by Baxter to the land here in suit.
Mills and Castle corresponded about the sale of the land, more than one sale having been under consideration. Mills alleged in his intervention, and the court found the fact to be, that, with the consent of Castle, Mills sold the land to Watts for the consideration of $400, of which $100 Avas cash in hand paid, the balance of $300 to be paid in three equal installments of $100 each. The court found that in clearing the title to the land of the cloud of this tax sale Mills had paid $5 advance costs; that he had paid Baxter the sum of $54, and that he had paid taxes subsequently accruing amounting to $4.81.
In anticipation that the contract of sale to Watts Avould be performed, Mills and wife, on December 17, 1938, executed and delivered to Watts a warranty deed which correctly described the land in question by metes and bounds, and this litigation was begun by the filing of the “Petition to Quiet Title” by Watts referred to in the beginning of this opinion.
Mills alleged that he prepared for execution by Castle a quitclaim deed under date of November 15, 1938, by which Castle would convey to Mills the land in controversy, but Castle declined to execute the deed. Mills also alleged the tender to Castle of the proportion of the purchase money to Avhich Castle Avas entitled under the contract Avhereby he had remoA^ed the cloud of the tax title and had negotiated the sale of the land.
The case is unusual, and the decree is not unambiguous; but as aato understand and interpret it the court found, from the testimony and the correspondence between Mills and Castle, that Mills had acquired an agency coupled Avith an interest to sell the land, and had negotiated a sale pursuant to this authority, and had tendered to Castle the $200 to which, under the contract, Castle was entitled.
The parties Avere operating under Avhat Mills calls a “50-50” contract, under which he was to sell the land after removing the cloud and pay Castle 50 per cent, of the proceeds of the sale, so that Castle is entitled to $200 net, and this, as we understand the record, Mills had offered to pay Castle.
Upon this finding it was decreed “that title to the hereinbefore lands be quieted and confirmed in the plaintiff, C. C. Watts, upon his completing payment according- to this decree; that tender has been made C. E. Castle by the intervener, Wm. T. Mills, and upon the defendant’s (Castle’s) failure to execute proper deed then his right, title and interest in said lands bé and the same are canceled and barred.” In other words, specific performance of the contract between Castle and Mills was decreed.
Authority for this decree is found in the opinion in the recent case of Sebold v. Williamson, 203 Ark. 741, 158 S. W. 2d 667, delivered February 9, 1942. In that case, as in this, the landowner authorized his agent to sell land under specified terms, and the agent procured a purchaser who accepted the terms, and the specific performance of the contract to sell was enforced in that case. The correspondence and writings between the parties prescribing the terms of sale met the requirements of the Statute of Frauds here, just as was the case there.
It is insisted that Castle did not authorize Mills to sell the land for $400, and" that he should not be required to accept that price for the reason that the land is worth more money, and that Mills did not disclose its actual value, as he should have done, inasmuch as Castle had never seen the land. The chancellor did not so find; nor do we. The record discloses that Mills reported to Castle an offer to buy the land at the price of $100, which Castle agreed to accept próvided he was paid $75 of the purchase money. Mills did not make this sale, but later sold the land for $400 to Watts who offers to perform and to complete his payment, one-half of which has already been made.
In the Sebold case, supra, after decreeing specific performance of the contract which Sebold’s agent had negotiated, it was ordered that if Sebold did not convey, the clerk of the court be appointed commissioner to make the conveyance and receive compensation for Sebold, the owner.
We think this a better practice than to cancel the owner’s title, as was done in the decree here appealed from, and that decree will be modified to impose the same directions given in the Sebold case. The cause is remanded for that purpose.
If it be said that the record does not show that Castle is the owner of the land, it being shown only that he had a deed from the commissioner made pursuant to the decree foreclosing the mortgage from Barnes to Castle, and that no showing is made that Barnes had title to the land, it may be answered that the purchaser Mills procured proposes to accept Castle’s title, whatever it may be, and the deed sent to Castle by Mills for execution, and which Mills, by his intervention, prays that Castle be required to execute, was a quitclaim deed. Castle may yet perform the decree by executing the deed. If he fails or refuses to do so, the commissioner will execute a deed, as directed in the Sebold case, upon the payment to the commissioner of $200 for the account of Castle.
The costs will be assessed against Castle, and if he refuses to execute the quitclaim deed which Mills presented to him for execution, the additional costs incident to the execution of the commissioner’s deed will also be assessed against him. | [
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Humphreys, J.
This suit was brought by appellee in the circuit court of Logan county against appellant to recover $25 per month, total disability benefits, under a policy of insurance issued to her by appellant on October 18, 1927, alleging that she became totally disabled within the meaning of the disability clause in the policy on and after the month of October, 1940, and also alleging that under the terms of the policy she was entitled to recover the premium- she paid appellant after she became disabled, a statutory penalty for failure to pay her, and a reasonable attorney’s fee.
Appellant filed an answer denying liability under the disability clause in the policy.
On January 5,1942, the court heard the case, sitting as a jury by agreement of the parties, upon the pleadings, depositions and testimony of witnesses in open court and took the case under advisement for consideration and on briefs.
On March 7, 1942, the court rendered judgment against appellant in accordance with his findings, which are as follows: “The plaintiff is entitled to judgment against the defendant for the sum of $350 for monthly indemnity for total disability from November, 1940, to December, 1941; that the plaintiff is entitled to judgment for $101, being the amount of premium paid during the period of disability; that the plaintiff is entitled to recover a penalty of $54.12, together with a reasonable attorney’s fee, which is fixed by the court in the sum of $400.”
Appellant excepted to the findings and judgment of the court, filed a motion for a new, trial, which was overruled over its exceptions, prayed an appeal to the Supreme Court, which was granted, and was allowed 120 days in which to prepare, file and present its bill of exceptions.
The bill of exceptions contains the policy of insurance with stipulations that all premiums on same had been paid from the date of the policy to the date of the trial and the testimony of appellee and of two physicians testifying in her behalf.
Appellant introduced no testimony.
The sole questions involved on this appeal on the undisputed facts are: first, whether appellee was totally disabled on account of disease within the meaning of the total disability clause contained in the policy, and, second, whether the fee of $400 allowed as attorney’s fee was unreasonable.
Total and permanent disability is defined in the policy of insurance as follows: “Disability shall be considered total whenever the insured is so disabled by bodily injury or disease that he is wholly prevented from performing any work, from following any occupation, or from engaging in any business for remuneration or profit, provided such disability occurred after the insurance under this policy took effect and before the anniversary of the policy on which the insured’s age at nearest birthday is sixty. ’ ’
The record reflects that appellee began teaching in 1923, after graduating, and taught continuously until 1929, when she married Mr. Dandridge. She then quit teaching until 1932 when her husband became ill and could not support her. She then had to return to teaching, and taught in Mississippi and at Paris, Arkansas, through the year 1935, at which time she had to give up her profession of teaching regularly on account of deafness, and thereafter until 1940 she taught occasionally as a substitute, but at that time she became so deaf she could not teach even as a substitute. She had been treated by physicians for deafness without benefit. During the period from 1935 until November, 1940, in addition to trying to teach as a substitute she attempted to assist her husband in the cleaning and pressing shop which he had established in Paris. She had to give up this work also .on account of deafness because she could not take telephone orders and could not converse with patrons of the cleaning and pressing shop. On account of her deafness she became nervous and afflicted with insomnia and indigestion so that she could not perform all of the ordinary duties of housekeeping for herself and husband. She was confined to her bed a considerable part of the time. Slie received no remuneration for the assistance she attempted to give her husband in the cleaning and pressing business and none for performing such household duties as she was able to perform.
Dr. Louis M. Henry, an eye, ear, nose and throat specialist in Ft. Smith, Arkansas, after qualifying as an expert or specialist, testified in substance as follows:
“On July 9, 1941, I examined Mrs. Dandridge with a view to determining her hearing loss. Bach ear was examined separately for bone and air conduction. I used standard forks of different pitch. The results were compared with normal hearing under the same conditions. This is a standard and approved method used by ear specialists.
“I found a very definite hearing loss for both bone and air conduction in each ear. I found retracted ear drums that are characteristic of chronic tubal catarrh. I also found an indication of nerve deafness. Her hearing loss is such that I find that she is economically deaf. In my opinion, she is incapacitated from teaching school. Her condition is such that she is totally incapacitated from performing any work, following any occupation, or from engaging in any business for remuneration or profit in which work or business her hearing would be a factor. I should say her deafness had existed possibly four or five years prior to my examination. In my opinion, her condition is permanent.”
Dr. Charles T. Chamberlain, who is the regular physician of appelee, testified as follows:
“I am a physician. I hold a medical degree. I have been connected with the Holt-Krock Clinic of Ft. Smith since 1935, in the capacity of internist.
“Mrs. Dandridge came to the Clinic in October, 1938, for treatment. She was complaining of progressive loss of hearing, complicated by an annoying ringing in her ears, nervousness, and indigestion. Since October, 1938, I have served in the capacity of Mrs. Dandridge’s family physician, and have seen her at intervals of about once every month or six weeks.
“Repeated observations • of Mrs. Dandridge during the interval from October, 1940, to the present time have failed to reveal any evidence of serious organic diseases other than the ear affection, which has led to progressive loss of hearing. This disability, in my opinion, contributed largely to the intensification of her nervousness, which, in turn, has been the cause of some of her other symptoms. In October, 1940, in my opinion, she was incapacitated from pursuing any gainful occupation. I conclude that the cause of her defect is catarrh of the Eustachian tube, complicated by auditory nerve involvement. She is economically deaf and incapacitated from pursuing any gainful occupation. The condition existed prior to October, 1940. The nervous and emotional instability manifests itself in terms of indigestion, insomnia and loss of appetite. The cause of the nervousness is secondary to the emotional strain to which the patient has been subjected as a result of her hearing defect. In my opinion, she is wholly incapacitated from performing any work, following any occupation, or engaging in any business for remuneration or profit. I consider the condition permanent.”
It is quite certain from this testimony that on account of appellee’s practically total deafness resulting in nervousness, insomnia and indigestion, she is disabled from doing any work, from following any occupation or engaging in any business for remuneration or profit; that she cannot follow the profession of teaching, for which she was peculiarly qualified, and cannot engage in any other business or work for remuneration or profit. She tried to work in the cleaning and pressing establishment operated by her husband, but completely failed to successfully perform the duties incident to that business. On account of her deafness, nervousness, insomnia and indigestion, it is quite apparent that she could not secure employment as a housekeeper for remuneration or profit. No one would want to employ in normal times a housekeeper who was so deaf she could not hear over a telephone or understand what she might be told to do. We think there is ample evidence of a substantial nature in this record to sustain the findings of the court, sitting as a jury, to the effect that appellee is totally disabled from performing any work, from following any occupation or from engaging in any business for remuneration or profit. It is true that she is not helpless, but our court has said in many cases in construing disability clauses such as is contained in this policy that the insured does not have to be helpless in order to recover disability benefits.
In the case of The Equitable Life Assurance Society v. Barton, 192 Ark. 984, 96 S. W. 2d 480, this court said: “To be totally disabled within the meaning of an insurance policy insuring against such conditions, it is not necessary that the insured should be absolutely helpless; he is totally disabled when he is unable to perform the substantial and material acts of his own business or occupation in the usual and customary way.”
This court said in the case of New York Life Insurance Co. v. Weeks, 201 Ark. 1160, 148 S. W. 2d 330, that: “The rule as to what constitutes total disability is well settled in this state, and in the case of the Missouri State Life Ins. Co. v. Snow, 185 Ark. 335, 47 S. W. 2d 600, the rule was stated as follows: ‘Total disability does not mean absolute physical disability on the part of the insured to transact any kind of business pertaining to his occupation. Total disability exists, although the insured is able to perform occasional acts, if he is unable to do any substantial portion of the work connected with his occupation. It is sufficient to prove that the injury wholly disabled him from doing of all the substantial and material acts necessary to be done in the prosecution of his business. . .
It was also said by this court in the same case: “ Of course, such a provision in a policy does not require that the insured shall be absolutely helpless or insane, but there must be such disability as renders him unable to perform all the substantial and material acts in the prosecution of a gainful occupation.”
Certainly it can be said under the facts in this case that on account of appellee’s deafness, insomnia, indi gestión and nervousness she cannot follow her profession of teaching at all, and she cannot do all of the substantial duties of housekeeping. We are convinced that under the facts in this case appellee could not perform all the substantial duties incident to any kind of work or employment she might undertake. In other words, we are convinced under the facts in this case that appellee’s earning capacity is totally and permanently destroyed. This is the real test under a fair and reasonable construction of the total and permanent disability clause in the policy.
Appellant contends that the attorney’s fee of $400 is unreasonable and excessive. This court said in the case of Pacific Mutual Life Insurance Company v. Jordan, 190 Ark. 941, 82 S. W. 2d 250, (quoting Syllabus b) that: “In an action on a policy of disability insurance, to recover past-due installments of disability benefits, services of attorneys in establishing disability, as affecting future rights and liabilities under the contract, involved a substantial right which should be considered in fixing their fees.”
It is true the recovery in this ease was not very large, but the effect of the decision herein will establish total and permanent disability for a long period of time, which will be a very valuable asset for appellee when appellant pays her the total amount to which she will be entitled - under the disability clause. The ■ successful maintenance of the suit required on the part of appellee’s attorneys an exhaustive search of the decisions of this and other courts of last resort. The fee allowed was not excessive, but is a fair and reasonable fee under all the circumstances surrounding the case.
No error appearing, the judgment is affirmed. | [
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Grieein Smith, C. J.
June 8,1941, “Chick” Collier and “Whitey” Guthrie robbed Norwood Hedge of approximately $500 and valuable jewelry. Hedge, who occupied an upstairs apartment in Blytheville with his wife, was forced at pistol-point to surrender his property. The house was searched.for additional money, Guthrie and Collier having been told that Hedge (operator of a drinking place known as “Sailors’ Bar”) ordinarily carried $14,000 in a money belt.
When apprehended, Guthrie and Collier confessed and subsequently entered pleas of guilty. Appellant was also charged with the crime, but denied complicity. He appeals from conviction and a judgment of three years in prison. Sufficiency of the evidence and an instruction are challenged.
Prior to the robbery Guthrie “cased” Hedge’s place, having been driven by Parker Morgan from Sikeston, Missouri, to Blytheville.
Guthrie, who at odd times had worked for London as a taxicab driver, testified that on the day Hedge was robbed he (Guthrie) called London at Sikeston directing contact with Collier at Dexter, and that they procure “artillery” and join him at Caruthersville. Guthrie’s statement to London was' that he “had something good” and wanted it attended to. London and Collier reached Caruthersville between two and three o ’clock in the afternoon. A “forty-four” and a “thirty-eight” pistol were in the. cowl compartment of London’s car when he reached Caruthersville. Parker Morgan and Guthrie had discussed all phases of the proposed robbery, and in London’s presence Guthrie told Collier what Morgan had said. The agreement was that after deducting ten percent for Morgan the remainder would be divided three ways— between Guthrie, Collier, and London. Other testimony given by Guthrie further connected London with the crime.
It is argued that Collier denied London’s participation. While Collier’s purpose was to shield his associate, his testimony condemned more than it protected. He admitted London informed him Guthrie called on the tele phone, directing the rendezvous at 'Caruthersville. His explanation is that after contacting Guthrie, the latter remarked that they would “take a drive to Blytheville.” Collier contends that at that time he did not know what Guthrie’s purpose was. On the way to Blytheville the Hedge robbery was mentioned, and the witness (Collier), after consenting to the plan when told it would yield. $10,000, urged that the stick-up be consummated at Sailors’ Bar “because I had been informed Hedge was married, and I always make it a practice not to steal from women.”
After the three had eaten at a Blytheville restaurant, Guthrie went to a telephone booth. Hedge was pointed out to Collier, and thereafter they “killed time” until after dark. When Hedge finally left the bar in an automobile Collier told London, who was driving, to follow. Hedge drove to his home. Collier and London went back to town and got Guthrie. The three returned to a point near the Hedge home and the taxicab was parked in a side street. London remained with the cab while Guthrie and Collier robbed Hedge. Guthrie was then taken to Caruthersville and Collier “went home.” “We divided the money in the car. . . . The man (presumably Hedge) told me that he had five hundred dollars. Guthrie wanted the money belt. I figured we got $200. Hedge said Guthrie stole some money and Guthrie handed me some. ... I got in the back seat, with Guthrie in front.”
There was the further explanation that at the time Hedge was robbed, Guthrie took all the money. The first time Collier saw the “take” was when Guthrie began dividing. Guthrie’s pistol was in the front seat beside him. Collier testified that in apportioning proceeds, Guthrie “would take so much and give me so much.” Question: “Bid London get some?” Answer: “I wouldn’t say. ... I got in the back seat [and kept] looking back to see if any cars were following us.” Question: “Bid Guthrie hand your money to you over the back seat?” A. “Yes.” Q. “Were you confident that when [Guthrie] took a twenty you would get a twenty: did he tell London that, too?” A. “I didn’t hear that. He probably got it. I saw money transferred from London to Guthrie. London asked for money. . . .” Q. “If you could hear [the statement that Morgan, the ‘finger man’] ought to get ten percent, London could hear it?” A. “Yes.”
Otto Scrape, a young farmer residing near Blythe-ville, testified that he was working in his father’s tractor shed near Highway 61 when a 1941 Chevrolet automobile with Missouri license number 165,275 parked on the roadside between 6:30 and 7:00 o ’clock the evening of June 8. It was good daylight. Thinking the car contained a “petting pair,” the witness decided to ask them to move on. He approached by way of a low fence, shielded by bushes, stopping about ten feet from the Chevrolet: — -“When I got within hearing distance they were talking about the police. I kept hidden to hear what they were saying. . . . The man under the wheel (later identified by Scrape as London) was listening and the others were talking. . . . One of the men was Guthrie. . . .. The men ‘outside’ were talking. The only one I saw in the car was Jack [London], and I figured they were talking to him.” Question: “What was the conversation you heard?” Answer: “They were planning to take a route into Missouri so that in going through they could get around the ‘cops.’ The rest of the road was not patrolled. . . . That was my understanding.” Question: “Was anything said about Ken-nett, Missouri?” Answer: “It was Kennett, or some place they said was a 25-mile stretch. He said they could take one road after they hit Hayti and the only time he would worry was while they were driving the 25-mile stretch between here. ... I took the license number at the time and wrote it down. ... I told my Dad what I saw and what they said, and we decided to go to the police. ’ ’
Appellant contends he was merely an innocent, non-suspicious taxicab driver. The explanations and disavowals, however, were not believed by the jury. It is insisted that Guthrie’s testimony is worthless because lie had served nearly fourteen years in penitentiaries, “and has many years to go.” At the time of trial he was thirty-six, and had received prison sentences for burglary and robbery aggregating seventeen years. Collier, likewise, had served time for robbery. He and Guthrie met and became friends while in prison.
Enough of the state’s evidence has been set out to show that appellant was not convicted upon the uncorroborated testimony of an accomplice. London’s admission that he brought Guthrie and Collier to Blythe-ville; that after Hedge had been identified he and Collier followed him home; that they returned to town and got Guthrie, and that the taxicab was parked at a convenient point; Scrape’s identification of car and parties and his narration of conversations by the roadside — these facts and other evidence it is not necessary to refer to were sufficient to go to the jury, and they warranted conviction.
It is insisted that prejudice resulted from an instruction which told the jury the defendant would be guilty if he . . . “were either standing by, aiding, abetting, assisting, or encouraging commission of the crime,” . . . [and] “even though not actually present, [if he] aided, abetted, assisted, or encouraged perpetration of the crime, ’ ’ he would be guilty.
Appellant’s theory is that prosecution was under § 2934 of Pope’s Digest: — “An accessory is he who stands by, aids, abets, or assists, or who not being present . . . hath advised and encouraged the perpetration of the crime.”
It was necessary, says appellant, for the state to show that he had, prior to the robbery, advised and encouraged its commission. It is conceded that if appellant had stood by, “aiding, abetting, or assisting,” he would be guilty; or, if not present, if he advised and encouraged those who robbed Hedge, guilt would attach. See, also, Fleeman and Williams v. State, post p. 772.
Initiated Act No. 3 (p. 1384, Acts of 1937) deals with accessories and principals. Section 25 is: “The distinction between principals and accessories before the fact is hereby abolished, and all accessories before the fact shall be deemed principals and punished as such. In case of felony, when the evidence justifies, one indicted as a principal may be convicted as an accessory after the fact; if indicted as an accessory after the fact, he may be convicted as principal.”
Information filed by the prosecuting attorney charged London with robbery. He was treated as a principal. This was not error. If Scrape’s testimony is to be believed (and it was, and appears entirely credible), London was bound to have known he was transporting robbers who for escape relied upon use of his car. Having been informed of Guthrie’s and Collier’s designs, appellant’s act in transporting them to a point near Hedge’s home, and in standing by to aid their escape, involved him to the same extent as though he had gone upstairs with his associates and had. physically participated in the robbery. He was present, “aiding, abetting, and assisting.”
If Guthrie’s testimony is correct, appellant procured the pistols. Collier’s languid effort to convince the jury that London did not understand what any man of ordinary intelligence and perception would have inferred from circumstances, acts, and conversations, adds but little to appellant’s contention that in effect he was deaf, dumb, . and blind.
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Grieein Smith, C. J.
Two teachers, one former teacher, three bus drivers, also directors of Floyd Special School District No. 37 of White county, and others, were sued by thirty-nine taxpayers. Charges were fraudulent diversions of school money.
Appellants, who were defendants below, stress the fact that those against whom judgments were rendered did not benefit personally by the transactions complained of. They say the district received value for all warrants issued, although process by which funds were withdrawn from the treasury was admittedly illegal. Limitation is pleaded.
When employed, each of the three bus drivers was related to one or more of the directors within the prohibited degree. There was no satisfactory proof, it is argued, that two-thirds of the school patrons signed petitions requesting directors to employ teachers who were related to members of the board within the fourth' degree. [But see Act 389, approved March 26, 1941.]
Employment of J. R. Lammers as janitor is an example of indirect methods to which recourse was had. Griffin, a teacher, was authorized by the directors to hire a janitor. He engaged Lammers. Payment was accomplished by adding Lammers’ salary to Griffin’s compensation. Effect was that school records did not disclose Lammers’ dual status: janitor and member of the board.
O. T. Dulaney was chairman of the board. A bus was purchased in the district’s name for O. L. Dulaney, who was O. T.’s brother. Sales tax was paid by the district.
During December, 1939, on a salary of $100 per month, O. L. Dulaney, as bus- driver, drew more than $600. He admitted the bus was purchased as his personal property, although postdated school warrants issued in part payment August 1, 19-38, were outstanding when suit was filed November 5, 1940.
While O. T. Dulaney was chairman, Thomas, a brother-in-law, operated a bus for the district under con tract. It belonged to Dulaney, who testified Thomas procured it by lease.
Significance attaches to the fact that payment of $250 by warrant was made to M. D. King, a teacher. This occurred, it is said, before the district contracted with him. King purchased real property from O. T. Dulaney (as appellees’ counsel expresses it) “. . . about the same date, paying therefor $250. While King would not admit the Avarrant Avas issued to enable him to make the purchase, he did not deny it.”
Copies of teacher and bus driver contracts were not filed, as provided by law.
O. T. Dulaney, Avhile chairman, used his truck to transport lumber and other building materials for the district and was substantially compensated. He was paid in cash realized from excess amounts added to salaries of teachers and bus drivers.
There Avere many irregularities. The marginal tabulation 3 shoAvs twenty-four items found by the court to have been fraudulent. O. L. Dulaney settled for the postdated warrants. King also settled. 'Charges against C. A. Turpin, L. M. House, M. D. King and his Avife, Cal Aclin, International Harvester Company, and Mrs. John V. Crockett, county treasurer, were dismissed. The tabulation is an itemization of judgments, all of which Avere joint and several, and amounted to $2,209.61. Security Bank paid $174.62 (the amount adjudged against it representing sums added to Avarrants payable to O. T. Dulaney and cashed by the bank). Net judgments, exclusive of interest, are $2,034.99.
Quoting from appellants’ brief, “The greater part of the transactions complained of arose from the attempt of directors to complete a gymnasium building, also used for class rooms.” The building Avas a National Youth Administration project. When nearly finished, but without a roof, NYA apportionment of funds ceased. The school directors claim they Avere advised it Avas legal to divert money from the transportation budget. The
credit tiras tapped by padding strategy came to tbe district from tbe state equalizing fund.
When money from the equalizing fund is paid to school districts, it becomes property of the payee, subject only to such control as the state has imposed. See § 142 and subsequent sections of Act 169 of 1931. The state ■board of education is empowered to make such reasonable rules as may be necessary to administer the equalizing fund. A regulation is that failure to supply required information shall disqualify the delinquent district from right of allotment. The report must be available to the commissioner of education not later than June 30 of each year. 'Changes in rules have been made as necessity and as efficient administration required.
Appellants’ first contention is that the money (found by the court, in effect, to have been siphoned from the treasury) was spent by the directors “in entire good faith.” It would perhaps be more accurate to say there was no diversion for personal gain.
Faced by NTA’s failure to complete the gymnasium, those who conceived this plan of financial triangulation for obtaining money, and those who lent themselves to the scheme, no doubt justified the expedient as the only available means to an end.
' A judgment holding that a member of the Brinkley town council was liable for tiling he sold the municipality was reversed in Frick v. Brinkley, 61 Ark. 397, 33 S. W. 527. The opinion by Chief Justice Bunn held the transaction was illegal. But the town, he said, could not in good conscience retain benefits and recover the purchase price. The decision was that while the statute prohibited councilmen from being interested in profits of any contract or job for work or services to be performed for the corporation, Frick’s sale of tile could not “. . . necessarily or even reasonably be considered a ‘contract or job for work or services to be performed,’ as is contemplated by the statute.” The question, as stated by the chief justice, was: “. . . where the contract made is not void in the strict sense, but only voidable, and where it has been fully executed by both parties, and the object of the litigation is, in effect, to annul and rescind, ’ ’ what were the relative rights 1 The case turned on one proposition: the relief sought could only be granted on the principles of right and justice, “. . . and these.[were] not with the plaintiff.”
Attention is called to Smith v. Dandridge, 98 Ark. 38, 135 S. W. 800, 34 L. R. A., N. S., 129, Ann. Cas. 1912D, 1130, where it was held that even thoug’h a school director could not make a binding contract with the district to pay a director an agreed sum for services performed outside his official duties, yet if the district should accept benefits it ought to make just compensation. Spearman v. Texarkana. 58 Ark. 348. 24 S. W. 883, 22 L. R. A. 855, is cited in the Dandriclge case. Mr. Justice Frauenthal made comment, as shown below.
Mr. Justice Wood, speaking for the court in Hendrix v. Morris, 134 Ark. 358, 203 S. W. 1008, said that in order to make school directors liable it was essential to allege that the wrongful act was wilfully and maliciously done.
These arguments are answered in the case at bar by the facts. However meritorious appellants may have thought the transactions were, to consummate them it became necessary to falsify records. By this departure from the law it Avas possible to draw money from the treasury for the masked purpose in view.
Because there was deceit and concealment, limitation as a plea is unavailing. Agreement between the actors constituted a conspiracy which became consummate Avhen warrants showing upon their face that they were for a designated purpose were in fact issued for a wholly different end. While the fraudulent motiAre actuating execution of the warrants remained undisclosed there Avas concealment, and the statute did not begin t'o run. Conditt v. Holden, 92 Ark. 618, 123 S. W. 765, 135 Am. St. Rep. 206.
In rendering judgment, the chancellor correctly declared the law. Affirmed.
In substance, appellees’ abstract of charges is: “. . . said board of directors purchased in the name of the school district a school bus for one of the defendant bus drivers and issued the warrants of the district in payment thereof; that the defendant Cal Aclin, doing business as Searcy Truck and Tractor Company, who was agent of International Harvester Company, was a party to the fraudulent purchase by the district of said school bus; that warrants were issued to certain of the school directors for alleged services performed by them in violation of the law; that illegal warrants drawn by said board of directors were in possession of -Security Bank, some of which had been paid and charged to the district; that certain warrants had been drawn payable to said bank purporting to be for services performed by the bank; that bus drivers were related within the prohibited degree to certain director-s and had been employed illegally.
“Appellants made denial, after which they admitted certain allegations by affirmatively pleading that warrants were issued in payment of expenses incurred and services performed by designated directors, and that warrants had been issued to bus drivers and teachers, purporting to be for services rendered the district by them, but which were in fact to pay for a gymnasium, it being alleged the warrants were issued against the ‘equalizing fund,’ with respect to which they expressly pleaded that ‘the directors contend that if they have violated the laws, the state board of education has jurisdiction over them, and taxpayers are without authority to sue, especially since the matters they object to were paid out of equalizing funds and not local taxes or the state apportionment.’ The answer made the further defense that the district had received benefit of all funds so expended.”
Section 97, Act 169, approved March 25, 1931; Pope’s Digest, § 11535. Although other subdivisions of § 97 have been amended, subdivision “d” regulating employment of teachers was not affected prior to 1941.
Floyd School District No. 37, beginning with' 1935, received remittances from the equalizing fund as follows: 1935-36, $1,895.68; 1936-37, $1,839.90; 1937-38, $3,454.46; 1938-39, $3,106.60; 1939-40, $3,261.47; 1940-41, $4,176.06; 1941-42, $5,180.94. Expenditures reported (the first amount being for teachers’ salaries, and the second sum representing transportation) were: 1933-34, $1,720; $210. 1934-35, $2,184. none. 1935-36, $2,205; $1,050. 1936-37, $2,600; $1,260. 1937-38, $2,800;- $1,800. 1938-39, $3,240; $1,880. 1939-40, $2,964; $2,220. 1940-41, $4,360; $3,781. 194Í-42, teachers’ salaries as shown by contracts (actual payments not available), $3,870; transportation figures not available.
Beginning with the 1935-36 school year, reports made to- the department of education show: Two buses operated on contract basis, one at $85 per month for seven months and one at $65 per month for the -same period. 1936-37, three operated on contract basis presumably for eight months. Contract salaries were $75, $75, and $65 per month. This would show a total of $1,800 for the year, and does not correspond with $1,260 reported. For 1937-38 two buses .were operated on contract basis. Original report shows each at $600 per year. A correction riot shown by the report reflects $900. In 1938-39 three buses were utilized under contract. Payments of $520, $600, and $760 were reported. During 1939-40 operation of four buses was reported, with payments of $800, $600, $520, and $300: total, $2,220. [Oscar Dulaney, eight months at $100; Ira Stroud, eight months at $75; Arthur Quattlebaum, eight months at $65, and John Burkett, six months at $50]. For 1940-41, seven buses were operated, six under contract for payments of $600, $529, $860, $480, $480, and $390: total, $3,339. Driver of the district-owned bus was paid $200, and operating expenses were $242, a total of $442, giving a grand total of $3,781. [S. I. Stroud was paid $75 per month for eight months, O. Dulaney $100 for eight months, Arthur Quattlebaum $65 for eight months, and John Burkett $60 for eight months]. Contracts reported for 1941-42 are for $520, $640, $600, and $160 for eight months, $201.25 for one and three-fourths month, and $105 for one and three-fourths month.
Pope’s Digest, § 11584, et seq. [For source of additional funds, see Act 334, approved March 16, 1939; also see Act 345, approved March 16, 1939],
“A director is disabled from making a binding contract with the school district, not because the thing contracted for is itself illegal or tainted with moral turpitude, but because his personal relation to the district .as its agent requires that he should have no self-interest antagonistic to that of the district in making a contract for it.” | [
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John A. Fogleman, Justice.
These suits were originally brought to recover $100,665.65 on 10 notes of Garland (Jiggs) Anthony, Jr. dating from August 27, 1957, and to foreclose three mortgages or deeds of trust given by appellants.
After first filing a general denial, appellants admitted liability on 6 of the 10 notes, but denied liability on the remainder, among which were notes No. 65935 executed in 1958 in amount of $23,000, No. 86019 in amount of $3,980.29, and No. 87602 in amount of $2,-360.49. Appellants later admitted liability on note No. 84798 in amount of $15,321.88. Notes No. 86019 and No. 87602 were given for interest on the other two notes. In the amendment to the answer, appellants asserted as defenses: (1) lack of consideration for the original obligation; (2) a guarantee of non-liability made to Garland Anthony, Jr. by the bank acting through its president; and (3) unclean hands on the part of the bank. In the same pleading there was a cross complaint for judgment over against one W. C. Blewster in the event that appellants were found liable on the basis that a letter of guarantee over the signature of Blewster was interpreted to be his personal guarantee to Garland Anthony, Jr, rather than that of the bank. A further amendment to the answer of appellants asserted the defense of fraud and misrepresentation. This defense was based on the following allegations: that W. C. Blewster as president and agent of appellee bank misrepresented to Garland Anthony, Jr. that Anthony would not be required to repay the loan; that the note was required to assist the bank in its compliance with'banking regulations and nothing more; that a letter of guarantee given by W. C. Blewster as president was further assurance that Anthony would not be called upon to repay said obligations; that Anthony relied upon these representations to his detriment and to the benefit of the bank; that the board of directors of appellee bank either ex pressly held out to Garland Anthony, Jr. that Blewster was acting within the scope of his authority or acquiesced in allowing said representations after it knew or had reason to know of such dealings by Blewster; that appellees occupied a superior bargaining position and influence over Anthony; and that the acts of Blew-ster, as the bank’s president, were a breach of fiduciary responsibilities. This amendment contained a counterclaim for judgment against the bank in amount of any judgment against appellants predicated upon the execution of these notes as an accommodation to appellees.
Appellees’ reply was a general and specific denial of allegations of the second amendment and counterclaim. Appellees also asserted that any guarantee to Garland Anthony, Jr. was ultra vires and denied any knowledge or acquiescence by the Board of Directors. Appellees further denied that Anthony accommodated the bank, asserting that the accommodation was for the benefit of Avalene Whitten, a sister of Garland Anthony, Jr., and her husband, Vernon. They also pleaded laches, waiver, estoppel, acquiescence and ratification on the part of Garland Anthony, Jr., based upon alleged interest payments and failure to deny liability until institution of these suits.
The chancery court gave judgment against Garland Anthony, Jr. on note No. 65935 for the principal balance with interest and attorney’s fees, and judgment against Blewster in favor of appellant. It cancelled a deed of trust purportedly given by appellants on their home in Dallas County. No action was taken regarding notes No. 86019 or No. 87602. The chancellor found: that the letter of guarantee referred to in the pleadings was the personal guarantee of Blewster; that Garland Anthony, Jr. had recognized his liability from time to time by payment of interest, and never asserted that he was not liable on the note until after Blewster was dismissed as president; that the note was executed by Garland Anthony, Jr. as an accommodation for his sister and brother-in-law as owners of Garland Anthony Lumber Company, to which credit was given for the proceeds of the note; that a guarantee of non-liability by the bank would have been ultra vires and illegal; that there was valid consideration for the note; that the defense of unclean hands was not sustained because it was not shown that any improper activities of Blewster were known or approved by the board of directors; that Garland Anthony, Jr. should not escape liability for an act which, if wrongful, was made to deceive bank examiners or other persons; and that Blewster had admitted liability to Garland Anthony, Jr.
Appellee Wilson Rogers, assistant vice president of appellee bank, was the only witness offered by appel-lees. He identified the note in question and stated that interest had been paid on No. 65935 to August 10, 1964, and that there had been one principal payment of $55, leaving a principal balance of $22,945.00. He said that notices for interest payments had been mailed regularly every three months to Garland Anthony, Jr. He also stated that the interest rate shown on the note had been changed from 6% to 7% with Anthony’s consent. There is no question about the proceeds of this note having gone to the account of Garland Anthony Lumber Company, a concern owned by Avalene and Vernon Whitten, the sister and brother-in-law of Garland Anthonyv Jr., and John Franklin Anthony, his brother.
W. C. Blewster was president and chairman of the board of directors of appellee bank from 1942 until he resigned in November 1964. Until his connection with the bank was severed, he handled all of the transactions involved in this litigation and seems to have had a rather free hand in conducting the bank’s business.
Garland Anthony, Jr. had done business with the bank since 1941. While his loan account was paid in full in 1951, he seems to ha/e had a series of business failures after that time. In all of these businesses he in- ciirred debts which, he liquidated by borrowing money from appellee bank. He also borrowed money for living expenses and to pay premiums on life insurance pledged to appellee bank as security. He mortgaged timber lands of the value of $82,000 to secure these debts. The notes on which he admitted liability constituted a part of these debts. He was allowed by the bank to keep a supply of blank notes on hand. He usually arranged for loans over the telephone, after which he would fill in and sign, a note and attach it to a draft for the loan proceeds.
Blewster solicited the account of Garland Anthony Lumber Company for the bank in 1943. He took care of its financial needs at all times and even arranged to “farm out” loans to other banks when the company had exceeded his bank’s legal limits on loans. The Whit-tens had the utmost faith and confidence in Blewster because they knew he could get financial assistance for them whenever they needed it. This assistance was not limited to this business venture, but included a loan of money to a wholesale lumber concern in which Whitten had to be a silent partner because OPA regulations forbade his ownership in such a business. Blewster even arranged for the purchase of lumber by this concern and was paid commissions which he later refunded when financial difficulties arose. The Garland Anthony Lumber Company was permitted to incur overdrafts, in substantial amounts. The Whittens had, on occasion, left blank notes in Blewster’s hands to be used in case of overdrafts. Blewster carried these as “cash items” in the bank’s assets rather than permitting the bank account to be overdrawn, but they aie usually referred to by the parties as overdrafts.
Shortly before the execution of the note in issue, Blewster called Vernon Whitten and said something would have to be done about an accumulated overdraft of $23,000. When Whitten went to the bank to discuss the matter, Blewster said to let him work on it. This was about the time when Blewster expected bank exam iners, and lie was doing everything he conld to get all cash items and overdrafts ont of the hank. There is a conflict in the testimony as to what happened from this time on. Blewster said that the matter was discussed with the "Whittens several times and that they stated that they had no way in which they conld pay this amount and that he suggested that they go to Garland Anthony, Jr. to see if some arrangement could he made. He testified, however, that he went to Anthony on his own. Mr. and Mrs. Whitten hoth say they made no request of “ Jiggs” and didn’t talk to him about the matter either before or after their conversations with Blew-ster. They said that they were not close to “Jiggs,” would not have asked him to help, and did not think he would have done so if they had asked. Mrs. Whitten says that she did not authorize Blewster to contact her brother and would have objected had she known that he intended to do so. Vernon Whitten said that they did not ask Blewster to find a solution for them, insofar as going to Anthony, individually, was concerned, but that Blewster said to give him a little time and he would see what he could work out. Blewster says he feels sure that he did tell them he was going to Garland Anthony, Jr. At any rate, Blewster called Anthony. Anthony states that Blewster said, “we’re in trouble” and that he felt Anthony could help. Blewster advised Anthony of the overdraft situation. Blewster says that he discussed the matter with Anthony on the basis of his borrowing $23,000 to cover the overdrafts. Anthony says that Blewster told him these items must be paid before bank examiners appeared but assured him he would not have to pay the note. He says that he agreed to sign a note only because he anticipated future dealings with th,e bank, he was assured he would never have to pay the note, and he felt obligated for accommodations by the bank through Blewster. He said that it was done for the express purpose of helping the bank with examiner? and that there was no request to him from the partners of Garland Anthony Lumber Company. He did say that his sister expressed her appreciation in ,a passing statement made sometime later.
At any rate, G-arland Anthony, Jr. did execute the note and was given a guarantee or indemnity agreement. This agreement was written on the letterhead of the hank, was addressed to Anthony, and read as follows:
“Regarding the matter of a $23,000.00 loan to this Bank for the benefit of Garland Anthony Lumber Company, I wish to personally guarantee this loan in the full amount.
Very truly yours,
/s/ W. O. Blewster
President”
Blewster testified that he told Anthony that efforts were being made to get a Small Business Administration loan for the Garland Anthony Lumber Company and that he thought this note would be only a temporary loan which would be paid out of the proceeds of 'the SBA loan. Anthony testified that Blewster guaranteed him he would never have to pay the note. He claims that he was assured that his signing this note would result in a substantial favor to the bank.
Blewster advised the Whittens of the result of his conversation with Anthony. Whitten says that when Blewster called, he asked that he and his wife come over. When they did, Blewster reported that he had worked the matter out for them. He filled out a note for them to sign and said he had to go to “Jiggs” on this. He first testified that they signed a note to “Jiggs” for $23,000, but later he was uncertain as to whether Anthony or the bank was the payee of the note. Mrs. Whit-ten said that Blewster stated that Anthony had done this as a favor to the bank. She signed the note presented by Blewster without looking to see who the payee was. Vernon Whitten said that Blewster said that ‘Gve gave Jiggs a letter of guarantee” and that Anthony would not have to pay, without any suggestion that Blewster was personally guaranteeing Anthony that payment of the debt would he made. While Blewster testified that he was acting as president of the hank, his testimony leaves no doubt about his intention that the guarantee be his own personal obligation, even though he did not contemplate that the payment of the debt would be made with his own funds. Bather, he hoped that the lumber company would be able to make the payment. It was unable to do so when the SBA loan was not made. Efforts to retire this debt through a sale of the company to other owners were likewise unsuccessful. For some unexplained reason, Blewster held the Whitten note (which showed Anthony as payee when delivered) and' never gave it to G-arland Anthony, Jr. He delivered it to appellants ’ attorney only two or three weeks prior to his testimony in this case. Anthony claiiiis that he never knew of the note.
Blewster was asked several times about the reason for getting the note from Garland Anthony, Jr. and giving the guarantee. He always emphasized getting the cash items out of the bank. He mentioned both getting the bank in condition for examination and helping the Whittens. Finally, he says that “Jiggs” Anthony was accommodating the Garland Anthony Lumber Company to get the cash items out of the bank and that both the lumber company and the bank were accommodated by getting the overdraft out. Anthony admitted that his sister benefited but now claims that this was only incidental to the transaction.
Notice of interest payments was sent to Garland Anthony, Jr. as they became due. Anthony admits that he made the first payment, although he claims he did so inadvértently. Later he forwarded the notices to Garland Anthony Lumber Company which made payments until the sale of the company to new owners in 1962. Garland Anthony, Jr. paid interest thereafter at the insistence of the bank. He admits having paid $4,500 on the note. He says that he did so for the same reasons he sighed the note. He claims to have notified Winston Wilson, an officer and director of the bank, sometime in 1963 that this note and one in the amount of $20,000, written to cover an overdraft of another concern in which Vernon Whitten was interested, were not his obligations but those of Blewster. Wilson testified that Anthony never denied liability on the note, but merely said that one of the notes was made for the benefit of Blewster and that he had a note or letter of guarantee and that Blewster owed him part of the money. According to Wilson, this conversation took place “after 1963 or 1964.” An inference might well be drawn that this conversation took place after Blewster left the bank, although there is testimony from which an opposite inference might be drawn.
We are unable to say that the findings of the chancellor are clearly against the preponderance of the evidence. The conduct of Blewster, even if attributed to the bank, is not the kind of corrupt conduct justifying the denial of relief under the clean hands doctrine. The actions of Blewster in the matter were not coercive in any way, nor was Anthony under any legal duress. Representations made by Blewster were not of existing facts but of future prospects and were not such as would form the basis of fraud.
In order to sustain their defense based on the “clean hands” maxim, appellants refer to the actions of the bank president in manipulating and controlling notes for the bank’s sole benefit without the maker’s or payee’s knowledge or request, in controlling customers’ accounts without their knowledge or request, in signing checks on customers’ accounts himself, in directing that dummy or fictitious invoices be attached to notes as security for loans, in borrowing money from customers’ accounts without their knowledge or consent, and in devising means of avoiding criticism of overdrafts from bank examiners in instances not related to the obtaining of the particular note in question. It is well settled that wrongs collateral to a complainant’s canse of action may not be invoked as a defense under this maxim. The wrong must have an immediate and necessary relation to the equity complainant seeks to enforce or must affect in some manner equitable relations of the parties in respect to some matter before the court for adjudication. Batesville Truck Line, Inc. v. Martin, 219 Ark. 603, 243 S. W. 2d 729.
Appellants also argue that replacing the overdraft of Garland Anthony Lumber Company with Garland Anthony’s note on which he was protected from liability by a secret agreement constituted a fraud, bringing into play the “clean hands” maxim in his favor. If this constituted a fraud, appellants were not the ones defrauded, and Garland Anthony was a party to the fraud. It is also well settled that one guilty of fraud in a transaction may' not invoke the maxim as that would violate the clean hands principle. Sliman v. Moore, 198 Ark. 734, 131 S. W. 2d 1. Even if deception of bank examiners had been the only purpose of the note in question, this was as well known to Anthony as it was to Blewster, and the “clean hands” defense would not be available to him.
Appellants also contend that there was no consideration for the note, it having been given as an accommodation to the bank. As between accommodating and accommodated parties, the consideration may be shown to be wanting. Boqua v. Brady, 90 Ark. 512, 119 S. W. 677. The burden of proof was upon appellants in this regard, however. Ark. Stat. Ann. § 68-124 [Repl. 1957]; Johnson v. Ankrum, 131 Ark. 557, 199 S. W. 897; Fisher v. Rice Growers Bank, 122 Ark. 600, 184 S. W. 36. Garland Anthony, Jr. admitted that the note was given to help his sister on account of obligations she had made in excess of her credit. There can be no doubt that Garland Anthony Lumber Company received the benefit of the proceeds of the note or that Garland Anthony, Jr. knew that it would. The accommodated party was the lumber company. The court might well have found that the "Whittens authorized Blewster to make the approach to Anthony on this matter, and they certainly accepted the benefits and acknowledged their obligation to him by executing their note, even though it was not delivered to him. The accommodation of these parties constituted valid consideration for the note signed by Anthony.
Anthony sought to establish a pattern of dealing for the benefit of the bank in this manner by testifying of another such transaction which culminated in the execution of note No. 84789 by him. Oddly, he admits liability on this very note. This transaction involved an overdraft of the enterprise in which Whitten was a silent partner. While Anthony says he executed a note for $20,000 without knowing who was involved, he received in return a note of this concern signed by the known partner for the same amount with W. O. Blewster’s personal endorsement thereon. His admission of liability on the note which replaced his original note lends support to the chancellor’s findings rather than to appellants’ position.
In Fisher v. Rice Growers Bank, supra, this court affirmed the judgment of a chancery court sustaining the validity of a note given by the makers in order to cover overdrafts of a friend who was an officer of the payee bank. There it was said that the signing of the notes was not an accommodation merely to the bank, but was in order to help a friend out of a difficulty. We cannot say that the chancellor’s finding on this point is clearly against the preponderance of the evidence, as the signing of the note to help a sister and brother-in-law out of a difficulty could well remove the transaction from the category of merely accommodating the bank. While appellants argue that the note was given wholly for a pre-existing debt, there is evidence that the amount of the note was deposited to the account of G-arlaiid Anthony Luidiber Company and.that a note or cheeks for less than the amount of the note sued on were charged against this account subsequent to or at the time of the deposit. “Whether the indebtedness to the bank was evidenced by the lumber company’s checks or its note at the time, the obligation was surrendered in favor of the new note.
Many of appellants’ contentions are based on their view that the guarantee executed by Blewster was that of the bank. While we cannot say that there was no basis for this contention, or that the letter is without ambiguity, there is evidence that both Blewster and Anthony considered this as a personal guarantee. We have pointed out evidence tending to support the contrary finding by the trial ¡judge. It cannot be said that these findings were against the preponderance of the evidence, particularly in view of the fact that Blewster was indebted to Whitten on an accounting from a business venture. The letter of guarantee written by Blewster, unlike the letter written by the bank president in Binghamton Trust Co. v. Auten, 68 Ark. 299, 57 S. W. 1105, relied on by appellants, pertained only to the guarantee and not to other matters relating to the bank’s participation in the transaction. (In the cited case, the bank president’s fraudulent representations, not his endorsement, were charged to the bank.) Furthermore, there is evidence which would justify a finding that Blewster was acting for the Whittens in this instance.
Appellants’ next point is that there was error in failing to find that the bank was barred from recovery by reason of fraud and fraudulent, misrepresentations on the part of Blewster. They base this contention upon statements by Blewster that Anthony would not have to pay the note and that it would be paid out of a Small Business Administration loan and the failure of Blewster to inform him that a bank could not legally guarantee its own loan or that deceiving the bank examiners might be a violation of law. As previously pointed out, we do not feel that the trial court’s finding that the guarantee to Anthony was given by Blewster personally, rather than on behalf of the bank, is clearly against the preponderance of the evidence. An honest but erroneous expression of opinion or belief is not fraud, even though made in terms of positive personal knowledge. One making such a statement concerning a matter not susceptible of exact knowledge in good faith is not liable for its falsity. National Life & Accident Ins. Co. v. Hitt, 194 Ark. 691, 109 S. W. 2d 426. Representations that are promissory in nature or of facts that will exist in the future, though false, do not support an action for fraud. Harriage v. Daley, 121 Ark. 23, 180 S. W. 333; Bankers’ Utilities Co. v. Cotton Belt Savings & Trust Co., 152 Ark. 135, 237 S. W. 707; Abramson v. Franks, 194 Ark. 971, 109 S. W. 2d 1271. The rule just stated would not apply if Blewster had made a false promise knowing at the time it would not be kept. Victor Broadcasting Company v. Mahurin, 236 Ark. 196, 365 S. W. 2d 265. Yet, there is nothing to show that Blewster did not have absolute confidence that Garland Anthony Lumber Company would receive an SBA loan from which the note payable to Anthony, which he obtained from the Whittens, would be paid. His good faith in i making this representation was indicated by his willingness to execute a personal guarantee. Appellants’ contention is that the transaction violated 18 USC § 656 prohibiting misapplication of funds of the bank. But the cancellation of the overdrafts by reason of, or from the proceeds of, the Garland Anthony, Jr. note could hardly be said to make the bank’s position worse or to constitute a misapplication of funds. See Adler v. United States, 182 F. 464 (1910). We find no basis here for disturbing the findings of the chancellor.
In a case such as this where the testimony is so conflicting, even to the extent that there are conflicts in different portions of the testimony of individual witnesses, the advantage of the trier of the facts in the opportunity to observe the conduct, manner and demean- or of the witness is significant. We are unwilling to say that his findings are against the preponderance of the evidence.
Appellants argue that the court erred in not finding that appellees were estopped to assert liability on this note. While we find no support for this argument, es-toppel was not pleaded and appears to be asserted for the first time on appeal.
The court failed to act on notes No. 86019 and No. 87602. It appears that they are included in judgments for interest, so they should be cancelled.
The decree is modified to cancel the notes just described, and, as modified, is affirmed. | [
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Humphreys, J.
Appellant, Maggie E. Teague, brought suit against appellee, successor to National Life Association, on the 12th day of February, 1940, in the circuit court of Pope county under a permanent disability clause contained in a life insurance policy issued by its predecessor, National Life Association, to appellant on April 24, 1919, being policy No. 59041, providing for the payment of an annual premium of $41.70. It was alleged that all premiums were paid on the policy until the payment due on April 24, 1931, after which time she paid no premiums. It was alleged in the complaint- that under the terms of said policy there was a clause providing for disability benefits “should the insured before reaching the age of seventy years and while this policy is in full force and effect become totally and permanently disabled, by accident and because thereof be wholly and permanently incapacitated from doing any labor or business ... in lieu of all other benefits payable under this policy, the association will, if the insured shall so elect, upon receipt by the association of. proper and satisfactory proof of such disability, pay to the insured one-tenth of the amount of this policy, and so long as the insured shall keep the policy in full force and effect by making all payments required hereunder within the time herein provided, one-tenth of said amount shall be paid to the insured at each anniversary of such first payment upon receipt of satisfactory proof of continued disability until the entire amount of the policy shall have been paid; provided, however, that any such payments made on this policy by the association before the death of the insured shall be indorsed on the policy when said payments are made and should the death of' the insured occur while the policy is in full force, all amounts theretofore paid on disability settlement shall be deducted from the amount stated in the face of the policy and the remainder only shall be paid to the bene ficiary named in the policy. . .' .” The policy further states “Proof of death or disability of the insured shall be furnished to the association at its home office which proof shall comprise satisfactory statements and evidence establishing any claim under this policy. . . .” It was also alleged that before reaching the age of seventy and while the policy was in full force and effect the appellant became totally and permanently disabled by reason of an accident and has remained totally and permanently disabled by reason of said accident ever since that time; that in the spring of 1925, the appellant was kicked in the lower part of her body, below the stomach, by a cow while engaged in milking said cow, from the effects of which she has never been able to do any work since that time.
A demurrer to the complaint was filed by appellee stating two grounds for dismissal of the complaint, the second ground being that the complaint. shows on its face that any right of action appellant might have had is now barred by the statute of limitations, and that appellee specifically pleads the statute of limitations in bar of any recovery.
The court sustained the demurrer to the complaint and dismissed same, to which ruling and judgment of the court the appellant at the time excepted and prayed an appeal to this court which was granted.
The allegations of the complaint -were met by demurrer specifically pleading the statute of limitations which had the effect of admitting the allegations in the complaint. In other words, the sole contention made by appellee in the trial court and in this court was and is that whatever claim appellant had under the permanent disability clause in the policy was barred by the statute of limitations. According to the face of the complaint appellant made no report as to her disability until December 9, 1939; that she furnished no proof as to her disability, but instead brought suit on the 12th day of February, 1940. One of the salient provisions in the policy or contract of insurance was that in case of disability the yearly premiums due thereafter must be paid before the animal benefits provided for in the disability clause 'of the policy could be collected. The policy or contract does not provide for the waiver of premiums in case of permanent disability. The policy required that she should elect whether she would accept disability payments or not and in the event of electing that she would do so, the disability payment of $300 per year should be deducted from the face of her policy, and had she made the election it would have been the duty of appellee to pay her $300 a year for ten years in order to satisfy its liability. Had it done this, appellee would have never had any money in its hands with which it could have paid the premiums and kept the policy alive. She did not keep the policy alive herself by paying the premiums, but defaulted in the payment of the premiums on April 24, 1931. The policy, therefore, lapsed on the 24th day of May, 1931, thirty days grace period in which she had the right to pay the premium after the 24th day of April, 1931. She made no premium payment after April 24, 1931, so the policy remained lapsed from and after the expiration of the grace period. Under the contract she must have made the proof of permanent disability before the policy lapsed and could not make it after the policy lapsed. It was said by this court in the case of Home Life Ins. Co. v. Couch, 200 Ark. 783, 141 S. W. 2d 20, that: “The policy lapsed June 1, 1931. Thereafter he could not have made proof, ‘while the policy is in full force and effect,’ because it was not in effect after that date.”
Appellant cites and relies upon the cases of Aetna Life Insurance Company v. Langston, 189 Ark. 1067, 76 S. W. 2d 50, and the Pacific Mutual Life Insurance Company v. Jordan, 190 Ark. 941, 82 S. W. 2d 250, but in both of thosé cases premium payments were waived from and after permanent disability occurred and in neither of those cases was an election required on the part of the assured to entitle him or her to disability payments and in both of those cases under the terms- of the contract the insurer had money in its hands with which to pay the premiums to keep the policies ¿live.
In the instant case it was the duty of the assured to keep the premiums paid up in order to keep the policy alive, and also the duty of the assured in'case of permanent disability to elect whether she would accept the disability payment or whether she would permit the disability payment to remain in the hands of appellee for the purpose of paying premiums and for the use and benefit of the beneficiary of the policy. She did not do either and did not even notify appellee that she had received a permanent injury in the spring of 1925. She did not attempt to do this until 1939 by a letter from her attorney to the appellee and did not bring her suit for the amount claimed until February 12, 1940. At that time her policy had been lapsed more than eight years and even if she had complied with all the provisions of the policy the suit was not brought until more than five years after the last installment under the disability clause would have been due.
Finding no error in the judgment same is in all things affirmed. | [
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John A. Fogleman, Justice.
Appellants bring this appeal from the judgment of the White Circuit Court convicting them of possession of burglary tools and possession of gambling equipment. Eight points are urged for reversal. The facts pertinent to a decision in this case will be . taken up as applicable to the points for reversal, which have been renumbered for purposes of this opinion.
(1) Appellants assert error in tlie trial court’s failure to suppress certain evidence. This contention is based upon the alleged invalidity of the search warrants due to the alleged absence of an oath or affirmation and the asserted lack of probable cause for their issuance.
The record reflects that there were three searches involved and that, with regard to the first, the Sheriff of White County obtained a search warrant to search appellants’ motel rooms, the car in which they were traveling and the trailer attached to the car. The sheriff’s testimony at the hearing on the motion to suppress and at the trial showed that he had information that appellants were at the motel and that they had burglary tools in their possession. He further stated that his decision to obtain. a search warrant was reached after a period of surveillance of appellants’ activities in and around the motel room and the car and trailer.
At the hearing on the motion to suppress, the State introduced the search warrants pursuant to which the searches were made. Although appellants subpoenaed the sheriff, several officers who had been involved in the search, and the justice of the peace who issued the warrants, only one person, appellant Glenn Davidson, was called in behalf of appellants. His testimony amounted to little more than a narration of the searches and arrests. No attempt was made to show facts indicative of the alleged lack of probable cause. While appellants contended that the warrants had been issued without oath or affirmation, the only evidence on this point was the testimony of the sheriff, who stated that an affidavit as to the facts and circumstances showing probable cause had been made.
In Albright v. Karston, 206 Ark. 307, 176 S. W. 2d 421, we held that where the search warrant is regular on its face and there is no proof that the ‘ ‘ oath or affirmation” was not made prior to its issuance, there is a presumption that all things essential to its validity have been done. It was therefore the duty of appellants to come forward with evidence sufficient to rebut the presumption of validity. Additionally, we note the prevailing view that the burden of proof on a motion to suppress is on the accused. Anderson v. United States, 344 F. 2d 792 (10th Cir. 1965); People v. Williams, 20 N. Y. 2d 388, 283 N. Y. S. 2d 169 (1967). In Wilson v. State, 268 P. 2d 585 (Okla. Crim. 1954), the Oklahoma court, in noting that the burden was on defendant on his motion to suppress, said:
“The burden of proving the invalidity of a search warrant rests on the defendant, and where he files a motion to suppress evidence or objects to the introduction of evidence on the ground the search warrant is not valid, he should produce the affidavit and warrant in evidence in support of such motion or objection, or account for the failure to produce and offer other competent evidence to show invalidity.”
See, also, 22A C. J. S. Criminal Law §§ 578 and 657(32) (a); Varón, Searches and Seizures, § 6(c). On the state of the facts in the case at bar, we feel that appellants have failed to meet the burden incumbent upon them to show that the first warrant was invalid. The evidence seized as a result of the first search was, therefore, admissible and the motion to suppress properly overruled.
With regard to the second search, appellants contended there was no probable cause therefor. After the first search, Sheriff Davis and his men withdrew from the premises but continued to keep appellants under surveillance, since the sheriff had information that another car was to make contact with appellants for the purpose of transferring burglar tools. During this period between the first and second searches, the wife of a companion of appellants came to the motel. Having been identified by the officers, she subsequently left. Thereafter, appellants got into the car and appeared to be leaving town when they were stopped. On this occasion the appellants were' arrested and taken into custody. The result of the search was that a Craftsman Drill, not discovered during the first search, was found.
On the record before us, we feel that the second search was lawful and that the trial court was correct in its ruling that the evidence seized pursuant thereto was admissible. While there are numerous cases which state that a "return” search, conducted on the basis of the warrant issued for the original search, is not permissible, these cases seem to involve situations where the officers have completely abandoned the premises for a substantial period of time. See, e. g., State v. Moran, 103 W. Va. 753, 138 S. E. 366 (1927); Coburn v. State, 78 Okla. Crim. 362, 148 P. 2d 483 (1944); McDonald v. State, 195 Tenn. 282, 259 S. W. 2d 524 (1953); State v. Pina, 94 Ariz. 243, 383 P. 2d 167 (1963). Such is not the case here. The sheriff and his men, after making the first search and on information that there was to be a subsequent contact with appellants, withdrew from the premises, but maintained constant vigil until such time as the arrests and second search were made. The second search was but a continuation and consummation of the first. There was reasonable cause to believe that other evidence, and possibly other persons, would be involved. The reasonableness of a search in any case must be decided "upon its own facts and circumstances.” Go-Bart Importing Co. v. United States, 282 U. S. 344, 51 S. Ct. 153, 75 L. Ed. 374 (1931). We cannot say that this record reflects an unconstitutional invasion at the time of the second search.
There is another ground on which we find the second search to be lawful, and that is that it constituted a search incident to a lawful arrest. The first search had been made and the objects (consisting of two pairs of vice grips, a hand drill, and a pair of rubber gloves) lawfully seized. The officers thus had probable cause to arrest appellants for the crime of possessing burglary tools. Ark. Stat. Ann. § 41-1006 (Eepl. 1964). "While it might be better procedure to make an arrest immediately upon seizure of evidence, we hesitate, on the peculiar facts and circumstances of this case, to say that it was unreasonable for the officers to delay the arrests until such time as it appeared that no other parties were involved. The arrests being lawful, the officers acted within the bounds of reason in searching the immediate premises under the control of appellants. Harris v. United States, 331 U. S. 145, 67 S. Ct. 1098, 91 L. Ed. 1399 (1947); United States v. Rabinowitz, 339 U. S. 56, 70 S. Ct. 430, 94 L. Ed. 653 (1950). Although there is sufficient justification for holding that the arrests occurred as soon as the officers stopped the car in which the appellants were traveling, this would appear to be insignificant, since, in any event, the search and the arrests were ‘‘substantially contemporaneous.” Stoner v. California, 376 U. S. 483, 84 S. Ct. 889, 11 L. Ed. 2d 856 (1964); State v. Hoover, 219 Ore. 288, 347 P. 2d 69, 89 ALR 2d 695 (1959). Moreover, the fact that we are here concerned with the search of an automobile is significant. The courts, both federal and state, have long distinguished between searches of dwellings and vehicles. In the case of vehicles, the validity of the seizure is not. dependent upon the right to arrest, but rather upon the reasonable cause the seizing officer has for the belief that the contents of the automobile offended against the law. Carroll v. United States, 267 U. S. 132, 45 S. Ct. 280, 69 L. Ed. 543 (1925); Burke v. State, 235 Ark. 882, 362 S. W. 2d 695; Mann v. City of Heber Springs, 239 Ark. 969, 395 S. W. 2d 557. For the reasons herein stated, we find that the second search was valid and reasonable under the circumstances of this case.
Appellants contended also that there was impropriety in the third search which was carried out on the following day pursuant to another search warrant. Apparently, the basis for their contention is that there existed no probable cause for issuance of the warrant. The record indicates that during the course of the previously described searches, the sheriff observed a peculiar looking table which was wired, two large batteries, and another box containing “some kind of device to operate the magnetism on the table.” His suspicion that a gaming device had been uncovered was buttressed by the discovery of several pairs of dice in the suitcase of one of the appellants. The sheriff did not immediately take any action with regard to the table and the supporting apparatus, but waited until after the second search, at which time he radioed in to headquarters, instructing that a separate search warrant be obtained pursuant to Ark. Stat. Ann. § 41-2009. The sheriff testified that he subsequently made an affidavit stating the facts constituting probable cause.
As in the case of the warrant for the first search, appellants have made no attempt to show that probable cause was lacking for the issuance of the warrant. It must therefore be held that they failed to meet the requisite burden of proof. Moreover, it is clear from the facts above stated that the gaming table was observed in open view at a time when the officers were lawfully on the premises conducting the previous searches. It has been held many times that where contraband arth cíes are identified without a trespass on the part of the officer, there is not a “search” that is prohibited by the constitution. Russell v. State, 240 Ark. 97, 398 S. W. 2d 213; United States v. Lee, 274 U. S. 559, 47 S. Ct. 746, 71 L. Ed. 1202 (1927); Ker v. California, 374 U. S. 23, 83 S. Ct. 1623, 10 L. Ed. 2d 726 (1963). From all that appears of record, the table could have lawfully been seized at the time it was observed. The officers should not be condemned for taking the added precaution of obtaining a jsearch warrant. The table and supporting apparatus were properly admitted into evidence.
(2) Appellants next contend that the evidence seized was not burglary tools or gambling equipment. We can quickly dispose of this contention insofar as it relates to the gambling equipment, as we feel that a clear case for the jury was made by the State. Appellants rely on Burnside v. State, 219 Ark. 596, 243 S. W. 2d 736, in which we reversed a conviction where the evidence involved consisted of a tape recorder, a ticker or teletype machine and a radio transmitter. We there said that where the device is not a gaming device per se, there mnst be evidence that the equipment was used as a gambling device before there can be a conviction under Ark. Stat. Ann. § 41-2001.
We feel that appellants reliance is misplaced, as the table here involved was per se a gambling device. The sheriff testified that, when he entered the trailer during the course of the first search, he saw “gambling equipment.” He also called it a “crap table.” Further, he described the device as a “ * * large table * * * with large batteries and this remote control which mechanized the top of the table.” He also referred to a “diagram” and “instructions of how to hook it up.” Pictures introduced in evidence indicated that it was no ordinary table but was improvised so that a metal bar beneath the top could be magnetized at will with a control device. The top of the table was boxed in by a rim which was approximately eight inches higher than the surface of the table. While there was some evidence that the table and the supporting apparatus were not so connected as to be presently operative, we deem this insignificant. The statute prohibits the keeping of any gaming device. The fact that the déviee is inoperative as a “crooked” or “rigged” device has no bearing on its status as a gaming device, although the fact that a device is peculiarly wired and outfitted is evidence that it is a gaming device. Under the facts of this case, we feel that the question was properly submitted to the jury.
Appellants contended that the evidence seized as a result of the first and second searches did not constitute burglary tools. This contention has caused us much concern, as it has brought to our attention an unsettled area of our law. There are three cases, involving the sufficiency of the evidence to sustain a conviction for possessing burglary tools, which we feel are in need of reconciliation. These oases are: Satterfield v. State, 174 Ark. 733, 296 S. W. 63; Prather v. State, 191 Ark. 903, 88 S. W. 2d 851, and Gossett v. State, 242 Ark. 593, 414 S. W. 2d 631.
In the Satterfield case the tools involved were: two bolt cutters, four common hoe files, one ordinary hammer, two Stilson wrenches, a flashlight and a pistol. As noted in the Gossett case, the conviction there was reversed. We note the statement in the opinion to the effect that the tools were not burglary tools, but we do not take this ease to stand for the proposition that the set of tools there involved were incapable, as a matter of law, of being held to be burglary tools. Our interpretation is guided by the court’s action in affirming the overruling of a demurrer to the indictment and in remanding the case for a new trial. In holding that the demurrer to the indictment was properly overruled, the court said, in effect, that the charge of crime was sufficient. Beversal was because of a deficiency in the proof. Therefore, the case was remanded in order to give the State a chance to show that ¡these were tools that were “adapted, designed or commonly used” by burglars for the purposes named in the statute rather than tools that might be so used. The act of remanding the case for a new trial clearly indicates that the court felt that, if properly shown to be commonly used by burglars, the tools could be classified as “burglar tools.”
In the Prather case the officers seized a sledge hammer with a shortened handle, a shortened punch, an ordinary screw driver, caps used to set off explosives, nitroglycerin, gloves or mittens, electric fuses, four pistols with extra cartridge clips, and a flashlight. While this array of tools might more easily be shown susceptible to use by burglars in their trade than one less nefarious, the court laid its emphasis on language to the effect that a fact question was involved:
“Perhaps, no fixed rule or announcement should he made as a criterion for guilt or innocence, except that in every instance the matter under investigation should be determined as a matter of fact, controlled or explained by all of the conditions, circumstances, and such pertinent collateral matters as might he present.” [Emphasis added]
The court noted that the fact that the tools might he capable of legal uses was not controlling. The State is entitled to establish facts tending to prove that the defendant had in his possession “such a group or selection of tools, devices, or materials as might he found to be more nearly suitable for breaking into houses, or opening locked doors and windows, or by explosive forces opening safes or strong boxes, where valuables might be stored or kept, than for any lawful purpose.” In conclusion it was said that “a charge of this kind is like any other charge, one that may be or may not be susceptible of proof; in other words, it is a question of fact, which, when proved beyond a reasonable doubt, and so determined by a jury, there is little left for review on appeal.”
Gosser v. State, supra, involved the seizure of combination of tools consisting of a tire tool, two screw drivers, a lug wrench and a bar used to remove tires from car wheels. The conviction was there reversed, the court noting that all the tools were such as were commonly used in connection with the operation of automobiles, except possibly screw drivers, which are common implements in every home or shop. There was an understandable absence of any testimony tending to show that the tools were “more nearly suitable” for use by burglars than for lawful purposes. On the facts of the case, the import of the statement that Prather was “not controlling or even persuasive” is clear.
A consideration of these three cases gives rise to certain general principles applicable in burglary tool eases where the question is the sufficiency of the evidence :
1. When it is shown, or is obvious, that the particular combination or group of tools in question is such that their use in lawful occupations or for legitimate purposes is common and ordinary and that many people might well be expected to have such a combination of tools in their possession at any time in the circumstances under which they are found, their possession cannot be a violation of the statute, regardless of the fact that they might conceivably be used for breaking, and entering buildings or any of the other structures named in the statute.
2. When it is shown that the particular combination of tools consists of implements commonly used for the purpose of burglarizing any of the structures named in the statute and it is not shown, and is not obvious, that the particular combination of tools is such as is commonly used in any lawful occupation or in general use for legitimate purposes, such that the tools will likely be found in the lawful possession of numerous persons, in the circumstances under which they are found, a jury question as to whether the possession of the tools is in violation of our statute arises.
In the case at bar, the sheriff, who was the only witness to testify at the trial, stated that, any one of the tools found might be used in some ordinary, lawful occupation. However, he also testified that such a combination of tools was adapted to, and commonly used for, breaking and entering. Even though he stated that a safe or vault could not be entered with these tools without a hammer and punch, he stated specifically that they were sufficient to afford entry into a building and were commonly used for that purpose. There is nothing in the record to indicate that this particular combination of tools was common to any particular occupation. While there were no explosives or weapons in the combination here, the court in Prather clearly pointed ont that no particular item or circumstance determined whether the combination constituted the prohibited tools.
It is notable that among the items found there was a pair of rubber gloves. Gloves were also found among the tools in Prather, and it was there pointed out that, while gloves are used in many lawful pursuits, it was common knowledge that gloves are employed by burglars to avoid leaving finger prints. We find that a jury case was presented. The jury having determined that burglary tools were involved, there is “little left for review on appeal.”
(3) Appellants’ next contention is that the trial court erred in failing to discharge the jury and declare. a mistrial after the prosecuting attorney mentioned the gambling device which had been in the lobby of the courthouse since the day before the trial. The record shows that the trial of this case had been scheduled for the day before, but that it had to be rescheduled due to the crowded docket. We feel that the trial court properly denied the motion for a mistrial for the reason that there is nothing to indicate that appellants were prejudiced by the presence of the table in the courthouse. There is no evidence that any of the. jurors saw the table, which had to be left on the first floor of the courthouse because of its weight. Further, as the jury was later permitted to view the table, we fail to see how appellants were prejudiced, even if we assume that it had beén seen prior to trial.
(4) Appellants claim prejudicial error in the trial court’s failure to declare a mistrial after Sheriff Davis, in answer to the question, “You knew Mr. Frazier?”, replied, “I knew him by reputation. I knew about him in Woodruff County.” The basis for their contention is that the reply, in the context used, indicated that the sheriff had reference to criminal activity of appellant Frazier. We cannot agree. The innuendo urged by appellants would require a strained view of a common ex pression used to signify merely that a person is known only casually. We cannot say that such expression amounted to evidence of bad character or that appellants were prejudiced in any way.
(5) Appellants assert as error the giving of two instructions in terms of Ark. Stat. Ann. §§ 41-1006 (possession of burglary tools) and 41-2001 (keeping a gambling device) on the alleged grounds that the instructions amounted to comments on the evidence and that the court, by so wording the instructions, ruled as a matter of law that the appellants were guilty of the felonies charged. We do not get to the merits of this contention for the reason that the alleged error has not been properly preserved for appeal. The record reveals that appellants objected generally to the trial court’s charge and specifically to the two instructions on the ground that, as a matter of law, thé evidence seized was not burglary tools or gambling equipment. There was no other specification of error. As to the specific objection, we have held under point (2) that the evidence was sufficient to go the jury. The allegations of error now asserted for reversal were not embraced in the objections to the instructions, nor were they carried forward in the motion for a new trial. Under these circumstances, the matters asserted are not now subject to review by this court. Cassell v. State, 242 Ark. 149, 412 S. W. 2d 610; Ford v. State, 222 Ark. 16, 257 S. W. 2d 30.
(6) We next consider appellants’ contention that statements by the prosecuting attorney in his closing argument were prejudicial in that they referred to appellants’ failure to testify. This court has said in numerous cases that a defendant’s election not to testify in his own behalf is a privilege which the law affords him, and that it is reversible error for the prosecutor to use words and phrases calculated to call such fact to the jury’s attention. Miller v. State, 239 Ark. 836, 394 S. W. 2d 601; Miller v. State, 240 Ark. 590, 401 S. W. 2d 15. In the two cases just cited, the reference to the fact that appellants failed to take the stand was clear. In the first case the prosecutor argued the instructions of the trial court and said: “You are instructed this is a privilege to them to either testify or not to testify. ’ ’ In the latter case, the statement was: “The defendant has chosen not to take the stand and that is his privilege * * Reversal in such instances is clearly required, as there could scarcely be a more obvious comment on the defendants’ failure to testify. The statements involved in the case at bar, however, are more nearly akin to those in Davis v. State, 96 Ark. 7, 130 S. W. 547, and Cascio v. State, 213 Ark. 418, 210 S. W. 2d 897. In the former case, the-prosecutor had said: “* * * it is undisputed and undenied and he cannot deny it.” This court held that the statement was an expression of opinion as to the weight of the testimony, not a comment on defendant’s failure to take the stand. In the Cascio case, the statement was: “What explanation have they made of that?” which we held not to be susceptible of the meaning urged by the appellant. In the present case, the prosecuting attorney, in the course of his closing argument, made the following statements: The case was “uncon-tradicted and undenied”; “I will leave that because the record is bare”; “There is nothing else in here except the testimony and proof of the sheriff”; “There has been no proof as to who [certain equipment] belonged to, the testimony was that nobody would claim it, nobody has acquired it, nobody has come here today to acquire it”; and “If I was picked up with [the equipment introduced into evidence], there would be some explanation of what it was doing in my car and what I was doing with it.” We feel that the expressions are all attributable to the weight to be given to the evidence, and that in no instance was the jury’s attention called to the fact that appellants failed to testify.
Under their point number IV, appellants contended that there had been no voluntary consent to the searches described in our point number (1). In view of the fact that we have held the searches legal on other grounds, we find it unnecessary to take up that argument.
The judgment is affirmed.
BrowN, J., concurs; Jones, J., dissents in part; Byrd, J., dissents. | [
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Gt-reenhaw, J.
Appellee, a negro, was employed by appellant, a domestic corporation, his duties at the time of his injury being to help unload and weigh bales of cotton which were brought to appellant’s compress and warehouse in Brinkley. On October 31, 1940, appellee and Mose Clark, colored, were working together unloading bales of cotton from wagons and other vehicles, placing them on the scales to be weighed and otherwise handling the bales.
The warehouse had been filled, and at the time of the injury cotton was being unloaded and weighed on scales located on the ground near the warehouse. Mose Yarborough, colored, drove into the yard with one bale of cotton, weighing about 500 pounds, placed upon the top of the sideboards of his wagon. He could not lift the bale, and Clark and appellee left the automobile in which they had been sitting, Clark going immediately to the wagon, and appellee 'going by the scales to get a tag to place upon the bale. Appellee then started to the wagon to help Clark and Yarborough unload the cotton.
Clark had gone on the other side of the wagon, and pushed up on the bale so that it fell on the ground on the side of the wagon nearest the scales, bounced, rolled and landed upon appellee,'who was endeavoring to get out of its way, badly injuring his right leg and fracturing the bones in the knee.
Thereafter suit was filed against appellant, alleging that the injuries which appellee sustained were due to the negligence of his fellow-servant, Mose Clark, in pushing the bale of cotton off of the wagon without looking and without ascertaining the whereabouts of appellee. The jury returned a verdict in favor of appellee for $2,000, upon which judgment was entered, and from which is this appeal.
Only two grounds of error a.re assigned and relied upon for'reversal of this case: (1) that the Woodruff circuit court had no jurisdiction, it being alleged by appellant that appellee was a resident of Brinkley, Monroe county, at the time his injury occurred in Monroe county, and that suit therefore could not be brought in Woodruff county under the Venue Act; (2) that the court erred in not directing a verdict for appellant, for the reasons that there was no negligence shown on the part of the fellow-servant, Mose Clark; that the injury was due to the appellee’s negligence, which was the proximate cause of his injury; and that appellee’s injury was the result of an accident.
We are unable to agree with the contention of appellant that appellee at the time of his injury was a resident of Monroe county. The evidence showed that appellee was born and reared at Cotton Plant, in 'Woodruff county, where he has lived all of his life, farms in the spring and summer and owns his home. He has been working around cotton compresses during the fall and winter for many years.
The only evidence upon which appellant predicates its contention that appellee was a resident of Monroe county is the testimony of Mose Clark to the effect that some time before the accident he and appellee rented a room in Brinkley for about three weeks. However, Clark testified that on this date he left his home in Cotton Plant and rode to Brinkley in a truck operated by Ben Walker which transported some 12 or 15 negroes from Cotton Plant to Brinkley to work, for appellant. He did not remember whether appellee rode from Cotton Plant to Brinkley that morning with him and the other negroes. Clark further testified that it was customary for men working at the Brinkley compress to go back and forth from Cotton Plant to Brinkley.
Appellee testified that he never lived in Brinkley or Monroe county, and that he rode from Cotton Plant to Brinkley on this occasion in the truck of Ben Walker. Appellee further testified: “Q. About how many went from Cotton Plant to Brinkley and back every morning? A. About 12. Q. Where did those negroes live? A. At Cotton Plant. Q. .How did they go to work every morning? A. With Ben Walker. Q. All 12 of them? A. Tes, sir. Q. How did he take them! A. In a truck. Q. When did you come home, every evening? A. In the evening. Q. All of them lived at Cotton Plant and came back every night? A. Tes, sir. Q. Do you own a home in Cotton Plant? A. Yes, sir.’’
We have concluded that under the evidence appellee was a resident of Woodruff county within the meaning of act 314 of 1939, the Venue Act, and that he had a right- to prosecute his suit in Woodruff county.
We think there was substantial evidence of negligence on the part of Mose -Clark, an employee of appellant and fellow-servant of appellee, which warranted the submission of this case to a jury. In determining the question as to whether there was substantial evidence of negligence, this court views the evidence in the light most favorable to the appellee in whose favor the verdict was rendered. Graves v. Jewell Tea Co., 180 Ark. 980, 23 S. W. 2d 972.
The undisputed evidence showed that at the time appellee was injured it was his duty, in company with Moso Clark, to unload bales of cotton and place them upon the scales to be weighed. The owner of the bale of cotton in question was unable to remove it from the sideboards of his wagon. Both Clark and appellee, when the owner of this cotton drove into the yard near the scales, left the automobile in which they were sitting to handle this bale of cotton. Clark went directly to the wagon, and seeing that the owner was unable to lift the cotton off the wagon went around on the opposite side of the wagon from appellee in order to help the owner get the cotton off the wagon. Appellee testified that he went first to get tags to place on the cotton, and was proceeding to the wagon to help unload it, and when he had reached a point a few feet from the wagon, without any warning whatever the bale was toppled off in his direction, and he endeavored to run away to avoid being struck by it. The bale bounced and rolled in the direction which he was running, rolled upon him, resulting in serious injury to his leg and knee.. His testimony was corroborated by the testimony of both Clark and the owner of the cotton.
Clark admitted that he did not see Elston at the time he pushed the cotton off the top of the wagon, did not look, and gave no warning that he was going to push the bale off the wagon. He testified: ‘ ‘ I .tilted the bale of cotton without knowing where Elston was.”
Mose Yarborough, the owner of the cotton, testified: -“Q. 'When he saw the bale coming he started to get away from it? A. Yes, sir. Q. He was going away from the bale of cotton? A. Yes, sir. Q. It hit the ground and bounded after him? A. Yes, sir. Q. And later he slipped and fell? A. He went to the ground. I don’t know whether he slipped or not; it seemed like he did. Q. The bale caught up with him? A. The last I seen of him the bale was going on him; he was on the ground on his face.”
There was practically no conflict in the testimony of all the witnesses as to the facts resulting in the injury to appellee, nor was there any material conflict in the testimony of the physicians who treated and examined appellee. All conceded he was seriously injured, and the testimony showed that appellee, due to his knee injury, would he permanently incapacitated from performing* all of the manual labor to which he was accustomed. Appellant does not contend that the verdict is excessive.
We have concluded that the court did not err in refusing to direct a verdict for appellant, since there was substantial evidence which warranted the submission of the issues to a jury. We find no error, and the judgment is affirmed. | [
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