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McCueroch, C. J.
The State appeals from a judgment of the circuit court sustaining a demurrer to an indictment against defendant, J. W. Jones, charging him with having been accessory-after the fact to the crime of murder committed by one George Battles. The indictment alleges in substance that the said George Battles did kill and murder one Jarrett Johnson, and that the defendant, after said crime of murder had been committed and with full knowledge that said Battles had committed said crime, “did then and there wilfully, unlawfully, knowingly and feloniously harbor, protect, conceal and aid to escape the said George Battles,” etc.
The statute of this State defining the crime of accessory after the fact is as follows: “An accessory after the fact is a person who, after a full knowledge that a crime has been committed, conceals it from the magistrate, or harbors and protects the person charged with or found guilty of the crime.” Kirby’s Digest, § 1562.
Another section of the statute (1566) provides that “an accessory before or after the fact may be indicted, arraigned, tried and punished, although the principal offender may not have been arrested and tried, or may have been pardoned or otherwise discharged.”
The learned circuit judge sustained the demurrer on the ground that the indictment failed to state an offense because it is not alleged therein that a judicial charge or accusation was pending against the principal, George Battles, at the time the defendant is alleged to have committed the acts which constituted the crime of accessory after the fact. In other words, that under the statute it is not a crime to knowingly harbor and protect a felon unless an indictment or other judicial proceedings be then pending against the principal for his apprehension or punishment.
We do not concur in this interpretation of the statute. Under the státutes of this State, either an officer or private person, with or without a warrant, “may make an arrest when he has reasonable grounds for believing that the person arrested has committed a felony.” Kirby’s Digest, §§ 2119, 2120. So, where a felony has been committed, the felon stands charged with the crime, and it is the duty of all persons who know or have reason to believe that he is guilty of a felony to arrest him! One who, Vvith a full lcnowl edge that the crime has been committed, harbors and protects the felon, is guilty as accessory and may be punished as such, whether the principal offender be arrested or not. Any other view of the statute would permit a person to go unpunished who has been guilty of the most flagrant act of harboring and protecting a felon before a warrant of arrest could be procured or an indictment could be returned.
It is, of course, a well-settled rule of interpretation that when the Legislature uses words which have received a judicial interpretation, words which have a fixed and well-known legal signification, they are presumed to have been used in that sense, unless the contrary intention clearly appears. This court has said that “it is dangerous to interpret a statute contrary to its express words where it is not obvious that the makers mean ■ something-different from what they have said.” Memphis & L. R. Ry. Co. v. Adams, 46 Ark. 159.
But it is equally well-settled that the language of a statute should be fairly and rationally interpreted so as to carry out the manifest intention of its framers. “In general, it may safely be said that when words in a statute are susceptible .of two constructions, of which one will lead to an absurdity, the other will not, the latter will be adopted.” Endlich on Interpretation of Statutes, 258.
Now, the words “charged with,” as applied "to the perpetration of crime, cannot be said to have a well-known and established legal signification. Chief Justice Andrews, speaking for the Supreme Court of Connecticut, said: “The expression ‘charged with/ as applied to a crime, is sometimes used in a limited sense —intending the accusation of a crime which precedes a formal trial. In a fuller and more accurate sense, the expression includes also the responsibility for the crime.” Drinkall v. Spiegel, 68 Conn. 441.
In the search for the meaning of the lawmakers, it is proper to consider what at common law were the elements of this crime, and whether there was any intention to change by statute its elements. Professor Wharton defined the common-law offense of accessory after the fact as follows: “An accessory after the fact is one who, knowing a felony to have been committed by another, shelters, receives, relieves, comforts or assists the felon.” Wharton on Homicide, § 67. Again, it is said by the same learned author: “Two things are laid down in the books as necessary to constitute a man accessory after the fact to the felony of another. First, the felony must be complete. * * * And, second, the defendant must know that the felon is guilty.” Sec, 68, Id. The other law writers on the subject give the same definition. 3 Russell on Crimes, p. 145; Clark’s. Crim. Law, § 49 (2nd Ed.) ; x Bishop on Crim. Law (8th Ed), § 692.
Nothing is said by any of these authors about the necessity for a legal charge or accusation against the felon before the crime of being an accessory after the fact can be committed, and we do not think that the Legislature by this statute intended to introduce a new element into this crime which would destroy its effectiveness.
The Supreme Court of California have taken the contrary view in construing a statute identical in its language (People v. Garnett, 129 Cal. 364); but, with due deference to that learned court, we are unable to agree to that interpretation.
Reversed and remanded with directions to overrule the demurrer.
Battue, J., dissenting.
McCuuuoch, C. J.
In addition to the grounds of attack set forth in the original opinion, the defendant insists that the indictment is fatally defective in that it does not set forth specifically the facts showing that the defendant had knowledge of the alleged felony committed by George Battles, the principal offender. Reliance is placed upon the decision of this court in State v. Graham, 38 Ark. 519, where it was held that under a statute making it a misdemeanor for a justice of the peace “who, from his own knowledge or from legal information, knows or has reasonable grounds to believe, any person guilty” of carrying a weapon, to fail or refuse to proceed against such person, an indictment against such officer must set forth the manner in which the knowledge or legal information was given. The indictment in that case merely alleged that the offending officer had legal information, without specifically stating the manner in which it was given. The gist of the offense was that the officer had failed to act after receiving legal information, and it was im portant to state in that indictment the manner in which this information was given.
Under the statute now under consideration, it is unimportant how the knowledge is received by the .alleged accessory; it is sufficient to constitute the offense if he knows, at the time he harbors and protects the felon, that the latter has committed the felony named in the indictment. Therefore, the statement in the indictment that he had full knowledge that the accused person had committed the crime was a statement of a fact, and not a mere conclusion.
Learned counsel for appellant have renewed with much force their argument made on the point decided in the original opinion; but after a careful re-examination of the questions, we are convinced that a correct conclusion was reached in interpreting the statute.
The petition for rehearing- is therefore denied. | [
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Hart, J.,
(after stating the facts.) 1. Counsel for appellant assign as error the action of the court in refusing to grant it a change of venue. In its petition for a change of venue appellant states “that it verily believes that it cannot obtain a fair and impartial trial in this, Marion County, on account of the undue prejudice against the petitioner in said county. It further says the plaintiff is not a resident of Marion County, Arkansas, but is a resident of the State of Missouri; that her cause of action, if any she has, and the occurrence of which she complains did not take place in Marion County, Arkansas, but occurred in the State of Missouri, and plaintiff was not compelled to institute her suit in Marion County in order to get service on the defendant;” and ends with a prayer to grant it an order changing the venue of this case to some other county in the State of Arkansas, against which there was no valid objection, and for all other proper relief.
The facts are that appellee came to Marion County after the suit was brought, a few weeks before the date of the trial, and resided there at the time of the trial. At the time her husband received the injury complained of, they resided at the town of Cotter, in Baxter County, Arkansas, through which county appellant’s line of railroad also extended. The injury complained of occurred in the State of Missouri. The action was not commenced in the county of the plaintiff’s residence nor in the county where the occurrence she complains of took place, and it was not necessary to bring the suit in Marion County in order to get service on the appellant. Hence, upon presentation of its petition duly verified, appellant was entitled as a matter of right to a change of venue.
We will quote the two sections of our statutes relative to the question: Section 7996 provides: “Any party to a civil action, trial by jury, may obtain an order for change of venue therein by a motion upon a petition stating that he verily believes that he cannot obtain a fair and impartial trial in said action in the county in which the same is pending on account of the undue influence of his adversary, or of the undue prejudice against the petitioner, or his cause of action, or defense, in such county. The petition shall be signed by the party and verified as pleadings are required to be verified, and shall be supported by affidavits of at least two credible persons to the effect that affiants believe that the statements of the petitioner are true.
Section 7998: “Upon 'presenting the petition, which may be resisted, arid notice to such judge, he may make an order for the change of venue in such action if, in his judgment, it be. necessary to á fair and impartial trial, to a county to which there is no valid objection, which he concludes is most conven ient to the parties and their witnesses; provided, that, in case where the plaintiff shall have instituted suit in a county other than that of his residence, or of the county where the occurrence of which he complains took place, unless -compelled to do so in order to get service on the- defendant, the defendant shall have the right to a -change of venue upon presentation of his petition duly verified.”
The language, “upon presenting the petition, which may be resisted,” plainly contemplates the petition duly verified and the supporting affidavits. This is so for the reason that it provides for a resistance, whi-ch could not -be done, and which would not be necessary to be done, unless a petition for change of venue duly verified and with supporting affidavits, as required by the statute, had been filed. In short, there would be nothing to resist unless the requirements of section 7996 had been complied with.
The proviso contained in the latter part of section 7998 is a limitation upon the preceding part of the section. Where the conditions contained in the proviso exist, they defeat the operation of the first part of the section. In other words, the proviso conditionally limits the operation of the statute relative to a change of venu-e. It provides that when the conditions exist the change of venue shall be granted as a matter of right upon presentation of the petition duly verified. If the Legislature had intended that the supporting affidavits should accompany the petition as a prerequisite to the granting of a change of venue, it would have used the language “upon presentation of his petition duly verified together with the supporting affidavits.” But the expression of the one excludes the use of the other.
In the case of St. Louis Southwestern Railway Co. v. Furlow, 81 Ark. at p. 499, the -court said: “The statute plainly means that if the plaintiff commences an action in a county other than that of his residence, or other than that of the county in which this -occurrence of which he complains took place, unless he is compelled to do so in order to get - service on the defendant, the latter shall have the right to a change of venue upon presentation of his petition in proper form, duly verified, containing allegations of the statutory grounds of prejudice or undue influence and supported by the affidavits of two credible witnesses.” The use of the words, “and supported by the affidavits of two credible witnesses,” used by the court, was not necessary to a proper determination of the issue under consideration, and the views we have expressed in the present case are in harmony with the rest of the opinion.
2. Appellee alleges in her complaint that she is entitled to maintain this action under section 2864 of the Revised Statutes of Missouri (1899). Counsel for appellant contend that section 2864 is penal in its character, and that the courts of one jurisdiction will not enforce the penal statutes of another. The allegations of the complaint do not state a cause of action under section 2864, but do state a cause of action under section 2865 of the Revised Statutes of Missouri.
“The right of action given in section 2864 is for a death caused by the negligence of the servant operating the defendant’s instrument of transportation, whether it be a locomotive, car, train of cars, steamboat, its machinery, stage coach, or other public conveyance, while the right of action given in the two sections next following is for a death caused by the negligence of the defendant, which may mean his own negligence, as for • instance, in furnishing an unsafe vehicle, or it may mean his negligence through bis servant in some particular other than the particular specified in section 2864, for which, if the person injured had not died, he would have had a cause of action.” Casey v. Transit Co., 205 Mo. 721; Crohn v. Kansas City Home Telephone Co. (Mo. App.), 109 S. W. 1068.
The complaint in this case alleges that the death of Mc-Namare was caused by the negligence of appellant in failing to block its frogs and guard rails as required by the act approved February 28, 1907. See Laws of Missouri, 1907, p. 181. Hence it states a cause of action under section 2865, and not under 2864, of the Missouri Revised Statutes.
Section 2865 does not create a new cause of action, but simply transmits one that theretofore existed, and would have ceased to exist upon the death of the injured party but for its provisions. Strottman v. St. Louis, I. M. & S. Ry. Co., 211 Mo. 227.
Section 2865, Revised Statutes of Missouri, 1899, is as follows: “Whenever the death of a person shall be caused by a wrongful act, neglect or default of another, and the act, neglect or default is such as would4 if death had not ensued, have entitled the part)' injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who or the corporation which would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured.”
It will be seen that the recovery permitted by this statute, giving a right of action for death by wrongful act, is not a penalty inflicted by way of punishment, but is merely compensatory for the damages sustained by the widow to whom under the Missouri statutes the right of action was transmitted on the death of her husband.
It is well settled that an action under such statutes may be maintained in another State having a statute substantially similar in import and character. St. Louis, I. M. & S. Ry. Co. v. Haist, 71 Ark. 258, and numerous cases cited in note to the case of Raisor v. Chicago & Alton Ry. Co., on page 806 of 2 Am. & Eng. Ann. Cases. Counsel for appellant urges upon us that the statutes are not substantially similar in their character. As we have already shown, the statute of Missouri under which the suit was brought is similar to ours in that" it is not a suit for a penalty, but for damages as compensation; and also that it does not create a new cause of action, but simply provides for the survival of the cause of action where death ensues. There is no objection that the right of action is enforced by the widow as provided by the laws of Missouri, instead of by the personal representative for the benefit of the estate and for the beneficiaries of the deceased, as provided by our statutes. In Dennick v. Railroad Company, 103 U. S. 11, the United States Supreme Court said of a similar action: “It is indeed a right dependent solely on the statute of the State; but when the act is done for which the law says the person shall be liable, and the action by which the remedy is to be enforced is a personal and not a real action, and is of that character which the law recognizes as transitory and not local, we can not see why the defendant may not be liable in any court to whose jurisdiction he can be subjected by personal process or by voluntary appearance, as was the case here. It is difficult to understand how the nature of the remedy, or the jurisdiction of the courts to enforce it, is in any manner dependent on the question whether it is statutory right or a common-law right. Whenever, hy either the common law or the statute law of a State, a right of action has become fixed and a legal liability incurred, that liability may be enforced and the right of action pursued in any court which has jurisdiction of such matters and can obtain jurisdiction of the parties.” To the same effect see Boston & M. R. Co. v. McDuffey, 79 Fed. 934. Therefore, we are of the opinion that under the principles above declared the suit can be maintained in this State.
3. It is next contended that the act approved February 28, 1907 (Laws of Missouri, 1907, p. 181), is unconstitutional. The act reads as follows:
“Sec. 1. That all companies or corporations, lessees or other persons owning or operating any railroad or part of railroad in this State are hereby required, on or before the first day of September, nineteen hundred and seven (1907), to adopt, put in use and maintain the best known appliances or inventions to fill or block all switches, frogs and guard rails on their roads, in all yards, divisional and terminal stations, and where trains are made up, to prevent, as far as possible, the feet of employees or other persons from being caught therein. Any company or corporation, lessees or other person, owning or operating any railroad or part of a railroad in this State, who shall fail to do any act or thing in this section required to be done, or shall cause any act or thing not to be done, or shall aid or abet any such omission, shall be deemed guilty of a violation of this law, and shall forfeit and pay the sum of ten ($10.00) dollars for every such offense, and each' day shall constitute a separate and distinct offense. At every term of a court of record of this State having criminal jurisdiction, the judge thereof shall direct and charge grand juries to make special inquiry as to violation of this law.
“Sec. 2. When any employee or other person shall be injured, maimed or killed by reason of the nonco'mpliance with the provisions of this act, then in any action for damages which may be instituted against any railroad company, corporation or lessee for such injuring, maiming or killing proof of contributory negligence or carelessness on the part of any employee or other person so injured, maimed or killed shall not relieve such railroad company (corporation) or lessee from liability.”
Counsel first urge that the act is unconstitutional because it takes away the defense of contributory negligence from the railroad company, and thereby deprives it of its property without due process of law. The rule on that subject as laid down by Mr. Elliott is as follows: ■ “There are many modern statutes requiring the performance of specified acts and denouncing a penalty against persons who fail or refuse to perform the designated acts. In some of the books it is suggested that the doctrine of contributory negligence does not apply where the injury is caused by a violation of the statute. The overwhelming weight of authority is, however, that the doctrine does apply, unless the statute abrogates the rule of the common law. Principle and authority, as we believe, require the conclusion that, although the’ violation of a statute may give a right of action to one who is injured thereby, it does not, unless expressly or by necessary implication so declared, give a right of action to one who is himself guilty of contributory negligence.” 3 Elliott on Railroads, § 1315. See, also, 2 Labatt, Master and Servant, § § 951 and 952; Quackenbush v. Wis. & Minn. Rd. Co., 62 Wis. 411. Here the act expressly deprives the railway company of the defense of contributory negligence. The policy of the law on which the defense is excluded is that it is in the nature of a penalty for the neglect of the railroad company to comply with a regulation of the Legislature deemed necessary for the lives of its employees. We are of the opinion that such acts fall within the police power of the State, and are within the scope of legislative authority.
Again it is urged by counsel for appellant that Congress by act of April 22, 1908, has assumed jurisdiction over injuries to employees engaged in interstate commerce, and that such jurisdiction is exclusive.
In the case of Chicago, Rock Island & Pacific Rd. Co. v. State, 86 Ark. 412, this court held that the Arkansas statute requiring railroad companies to equip certain freight trains with at least three brakemen, insofar as it relates to' interstate commerce, is not in conflict' with any act of Congress on that subject, and is valid until Congress legislates on the same subject. The court, speaking through Chief Justice Hiee, said: “There is no direct interference with the legislation of Congress relied upon by the act in question. Each may stand; each covers its own field; and there is no apparent ground of conflict possible in the operation of the two acts, for they do not reach the precise subject-matter.”
So in the present case it may be said that Congress has not required railroad companies engaged in interstate commerce to fill or block all switches, frogs and guard rails on their roads or in their yards, and there is no conflict, therefore, between the act now under consideration and the act of Congress of April 22, 1908, commonly known as the Employers’ Liability Act.
4. Counsel for appellant also contend that the court erred in submitting to the jury the question whether the place where McNamare received the injuries which resulted in his death was a yard on appellant’s line of railroad, and urges that the court should have declared as a matter of law under the evidence adduced that such place was not a yard, within the meaning of the act of Missouri of February 28, 1907, above quoted. The case seems to have been tried on the theory that the act does not contemplate that all switches, frogs and guard rails on the road shall be filled or blocked, but that only such as are in yards, divisional and terminal stations and where trains are made up fall within the provisions of the act. Inasmuch as the question of filling or blocking frogs, switches and guard rails on all parts of the road may arise on a new trial of the case, and for the reason that neither the Supreme nor Appellate Courts of the State of Missouri have to our knowledge construed the act, we will refrain from considering this assignment of error.
5. Other assignments of error are urged upon us for our consideration, but they are upon questions of evidence and on the improper remarks of counsel in their argument to the jury, and they need not arise on a retrial of the cause. Hence we will not now consider them.
For the error in not granting appellant a change of venue as indicated in the opinion, the judgment will be reversed, and the cause remanded for a new trial. | [
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Battue, J.
This is an appeal from the order of the Baxter Circuit Court refusing to grant appellant a writ of certiorari compelling the mayor of the incorporated town of Cotter to send up the record in the case of Theressa McDermitt, plaintiff, v. J. L. Jones, defendant, St. Louis, Iron Mountain & Southern Railway Company, garnishee. The petition for certiorari was as follows:
“Comes the garnishee in the above cause and shows to the court, that on the 8th day of April, 1908, C. T. Cannady, as mayor of the incorporated town of Cotter, Baxter County, Arkansas, entered a judgment by default against the garnishee in this cause for $43.41, a copy of which is herewith filed as ‘Exhibit A’ hereto. That on the 25th day of April, 1908, Tom M. Mehaffy, as attorney for said garnishee, made the necessary affidavit for an appeal from said judgment, and executed a good and sufficient bond therefor, and sent the same by due course of mail to H. D. Routzong, mayor of said town, successor in office to said C. T. Cannady, and affiant believes the same was received at said office of said mayor on the 26th day of April, 1908, and has been lost or mislaid. That on the 8th day of June, 1908, Z.. M. Horton, attorney for said garnishee, made and offered to file with said mayor, H. D. Routzong, the necessary affidavit and bond to perfect said appeal, which filing was refused by the court. It further said, the judgment against J. L. Jones on which said garnishment,was issued was and is absolutely void, and had been so declared by the Baxter Circuit Court, on motion of said J. L- Jones, before the issuance of said garnishment. That said judgment was a judgment entered against a minor without an answer by his guardian or guardian ad litem, and is without jurisdiction and void. Wherefore said garnishee prays the court to make an order extending the time for perfecting said appeal, and that the same be allowed by this court, or that this petition be taken and considered as an application for certiorari, and that all the necessary orders be made to bring said judgments and proceedings into this court, and that said judgments be quashed, and for all proper relief.”
“Exhibit A” referred to in the petition was as follows:
“On the 23d day of August, 1907, issued garnishment and summons against the defendant, returnable on the 2d day of September at ro o’clock a. m., and delivered the same to 'Charley Moore, marshal of the incorporated town of Cotter. On the 2d day of September the said writ having been returned duly served on the defendant as follows: ‘Received the within writ the 23d day of August, 1907, and served the same on the 23d day of August, 1907, by delivering a copy thereof-to J. McDermitt, the person with whom the said defendant lived, and said defendant being a minor over the age of fourteen years, and said minor not being at home, all in the town of Cotter, Baxter County, Arkansas ;’ -and this cause -coming -on for trial on the 2d day of September, 1907, at 10 a. m., and, the -defendant- not appearing, the -case wa-s adjourned to 1 p. m., and, the defendant still not appearing, the -court appoints J. B. Ward-as guardian ad litem, and continues this case until September 3, 1907, at 9 a. m. And on this 3d day of September, 1907, this cause coming for hearing, and the plaintiff appearing by Allyn Smith, her attorney, -and the defendant not appearing in person but appearing by his guardian ad litem heretofore duly appointed; and it appearing that the defendant, J. L. Jones, was a minor over the age of fourteen years, and was duly served with summons as provided by law, and the court, having heard the evidence and being duly advised in the premises, doth find that the defendant, J. L. Jones, is indebted to the plaintiff for necessaries in the sum of $30.60 as alleged in ■her complaint; it is therefore considered, ordered and adjudged that plaintiff do have and recover of and from the defendant the said sum of $30.60, and that she recover her costs herein taxed at $.........., and hereof let execution issue.
“March 28, 1908, writ of judicial garnishment issued to the St. Louis, Iron Mountain & Southern Railway Company at the request of the plaintiff, returnable April 8, 1908, at 10 o’clock A. M.
“April 8, 1908. Now, on this day this case coming on to be heard, and the plaintiff appearing and the garnishee failing to appear, the court waits three hours and until 1 o’clock p. m., and the garnishee, still not appearing, makes default. And it appearing that writ of judicial garnishment heretofore issued had been duly served by leaving a copy thereof with J. W. Wooley, the station agent of the garnishee at Cotter, Baxter 'County, Arkansas, on the 28th day of March, 1908, and by said default said garnishee confesses that it has in its possession money of the defendant sufficient to satisfy the judgment of the plaintiff against defendant. It is by the court considered, ordered and adjudged that the plaintiff do have and recover of and from the garnishee, the St. Louis, Iron Mountain & Southern Railway Company, the amount of the judgment and costs recovered by the plaintiff against the defendant, to-wit: ($43.41) forty-three and 41-xoo dollars, and hereof let execution issue.”
On the 23d day of September, 1908, the foregoing petition came on for hearing in the Baxter Circuit Court, and the parties thereto entered their appearance, and the court, after hearing the petition, and “Exhibit A,” denied the writ of certiorari prayed for, and rendered judgment against petitioners for cost, and they appealed.
It appears from the foregoing petition and exhibit that Theressa McDermitt brought an action on the 23d day of August, 1907, before C. T. Cannady, mayor of the incorporated town of Cotter, against J. L. Jones, a minor, to recover $30.60 for necessaries furnished by her to him, and on the third day of September, 1907, recovered judgment against him for that amount; that plaintiff, Theressa McDermitt, on the 28th day of March,- 1908, sued out a writ of garnishment against the St. Louis, Iron Mountain & Southern Railway Company upon the judgment recovered by her, returnable before the mayor of Cotter on the 8th day of April, 1908, on which day it was returned duly served; and .that, the garnishee having failed to appear on the day summoned, the mayor rendered judgment against it for $43.41. To quash this judgment appellant asked for a writ of certiorari.
Appellant insists that the judgment against it should be quashed, because there was no service of summons on Jones in the action against him before the mayor, no legal appointment of a guardian ad litem, and no appearance by him in that action, and by reason thereof the judgment against him was void.
It is true that a judgment against the garnishee cannot lawfully be rendered until judgment has been rendered against the defendant in the main action. Norman v. Poole, 70 Ark. 127. But where that judgment has been rendered, and cannot be enforced on account of failures to comply with the statutes, such failures should be set up by the garnishee as a defense. The statute provides that when any plaintiff may have obtained a judgment, and shall have reason to believe that any other person is indebted to the defendant, or has in his hands or possession goods and chattels, moneys, credits, and effects belonging to such defendant, such plaintiff may sue out a writ of garnishment, setting forth such judgment and commanding the officer charged with the execution thereof to summon the person therein named, as garnishee, etc. By such writ the garnishee is called upon to set up- any defense he has against the same. If the judgment mentioned in- the writ be void, he should set up that fact as a defense. If a judgment should be recovered against him in such proceedings, his remedy outside of the court in which it was rendered would be by appeal or writ of error, unless he has lost the appeal through no fault of his own.
Appellant stated -in his petition that judgment was rendered against it as garnishee on the 8th day of April, 1908, and that on the 25th day of the same month its attorney made the necessary affidavit and bond for appeal from said judgment, and sent the same by mail to the mayor of Cotter, and believes the same was received on the 26th day of April, 1908. If such be the fact, his appeal was taken in time, and he could have supplied affidavit and bond after showing the loss of them. If they were not received in due time, he still had time to ascertain that fact and take the appeal within the time allowed for that purpose. Consequently it failed to show that it lost the right of appeal through no fault of its own.
Judgment affirmed. | [
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Battue, J.
M. R. Lewis sued the St. Louis Southwestern Railway Company for damages for an injury caused by its failure to properly inspect its cars. He alleged that he was on the 27th of February, 1907, in the employment of the defendant as conductor of one of its gravel trains, and while so engaged sustained painful and permanent injuries as a result of the gross negligence of the defendant; that in the discharge of his duties as such conductor he caused said train to be moved to the Bearden Gravel Pit on its line of railway, for the purpose of loading the same with gravel for use on defendant’s railway, and caused it to be stopped at the place where it was the custom of the railroad company to inspect its cars and to repair any and all defects and injuries that any-of them may have received, and after it had been stopped sufficiently long for such purpose caused it to be moved to a steam shovel there located to be thereby loaded with gravel, and when it stopped placed his foot upon the stirrup or step of one of the cars of the train for the purpose of alighting, and it, being defective, as he did so, swung around from one end, and threw him to the ground, and thereby inflicted hernia in one of his sides, a painful and permanent injury. He further alleged “that said stirrup on said car was defective, and that same was known to the defendant, or could have been known to it by the exercise of ordinary -care; but that defendant, through its agents and employees, did not exercise ordinary care in the inspection and repair of its said cars, but was guilty of gross negligence, thereby causirfg the injury to the plaintiff as above;” and charged “that defendant has been guilty of negligence in not providing safe appliances for its said cars, and in the use and employ of defective machinery and appliances, to the plaintiff’s great injury;” and .stated “that, by the wrongful and negligent acts- of the defendant, plaintiff has suffered great bodily pain and mental anguish and suffered permanent injury; and that he -has suffered such injury as renders him unable to perform his usual labors and incapacitates him for performing manual labor of any kind; and that he has been damaged thereby in the sum of $20,000,” for which -be asked for judgment.
The defendant admitted that plaintiff was in its employment, and denies all other material allegations, and pleaded contributory negligence and assumed risks -by plaintiff as defenses.
A trial of the issues before a jury followed, in which a verdict was returned in favor of the plaintiff for $1,500; and the defendant appealed.
Evidence was adduced in the trial tending to prove the following facts: On the 27th -day of February, 1907, plaintiff, Lewis, was a conductor in the employment of the defendant, St. Louis Southwestern Railway Company, having in charge of the moving of the trains of the railway company and the loading of its cars with gravel at Bearden Gravel Pit. He had caused a line of cars to be moved down to the steam shovel at that place for loading, and was stepping from one of the cars to a step suspended under the sill on the side of the car. The step gave away, and he fell to the ground, a distance of about two feet, which caused a hernia in his left side and much pain and suffering. This step “was in the nature of a stirrup, being on the ends of bolts coming down through the sill.” It was a flat piece of iron bent in the shape of the letter U. A bolt passed through each end, and was secured by nuts. After appellee had fallen, he discovered that one of these nuts had come off, leaving one end of the step unfastened. When he put his weight on the step, the end slipped off the bolt, and he fell. He could not have discovered the defect in the step before falling, without getting down on the ground and looking up from beneath the car.
Inspectors were sent to and kept at Bearden Gravel Pit to inspect the cars of the appellant arriving at that place. They made all necessary repairs they could that this inspection disclosed, and, if they could not -be made there, the car was sent to the shops at Pine Bluff, Arkansas. They made report of cars inspected to a Mr. Adams, “the superintendent of motive power at the Pine Bluff shops.” C. E. Yowell was foreman of the freight car repairs of appellant in its shops at Pine Bluff. The inspectors at Bearden Gravel Pit were employed by him, and he sent them there as car repairers and inspectors. They inspected the-car with the defective step a short, time before and on the day appellee was injured. They failed to discover the defect, and no good reason is given for the failure. The car was moved a very short distance after the inspection to where appellee fell.
T. S. Stinson was train master of the appellant, and in February, 1907, was in charge of the Bearden Gravel Pit, together with the gravel trains of the appellant “and the operations of the grading of its road.” So it appears that appellee and the inspectors were in different departments'of service.
The court instructed the jury, in part, as follows:
“1. It is the duty of the master to exercise reasonable care in providing safe appliances and apparatus with which his ser vants are required to work, and in inspecting and repairing such appliances, and in discovering any defects therein, and the extent or degree of such care — that is, what is reasonable care — must be determined by the nature of the business in which he is engaged and the ordinary manner of their use and the dangers ordinarily arising therefrom. It is such care as a reasonably prudent and careful man, having a reasonable regard for the safety of others, would use under like conditions. But the master is not an insurer of lives, health or safety of his employees, nor of the soundness or safety of the appliances so furnished for their use. His liability ceases in law when he has used reasonable care in their selection, construction and maintenance, as above stated, and the mere fact that the injury may have resulted from the use of defective appliance would not, of itself, create a cause of action in the injured party against the master. In order to entitle him to recover damages for such injury, the burden is on the plaintiff to show, by a preponderance of the evidence, that: (1) He has been injured. (2) That such injury was caused by the operation of a defective appliance furnished by the master. (3) That such defective condition was known to the inspectors of the company, or some of them, or that it was such that it would have been known by them, or some of them, before the accident, if they had used reasonable care, skill and diligence in the performance of their duties, and that they did not use such reasonable care, skill and diligence in inspecting the appliances which caused the injury and in discovering and repairing the defects therein. The presumption of the law is that the master had performed his duty in furnishing proper appliances, and that, if any defects existed, he was ignorant thereof, and the burden is upon the plaintiff to show the contrary by a preponderance of the evidence.”
“2. If you find from the evidence that the injury complained of was caused by a defective, unsafe and dangerous condition of the stirrup mentioned in the testimony, and that such stirrup was in such defective, unsafe and dangerous condition at the time of the inspection by the car inspector, as mentioned in the complaint and answer, and that by the exercise of ordinary care the defective, unsafe and dangerous condition of such stirrup could have at the time of inspection been discovered. so that said defect could have been remedied, and such stirrup rendered in a safe condition for use, then your verdict .will be for the plaintiff in such sum, if any, as he has been damaged thereby.”
No objection is urged by appellant against the foregoing instructions in its brief. They are substantially correct. It was the duty of the appellant to have provided the appellee with suitable instrument and means with which to do his work and a suitable place in which he, exercising due care himself, could have discharged his duties as safely as the hazards incident to his employment would have permitted. In the performance of these duties it was only bound to exercise reasonable and ordinary care; and it was its duty to exercise the same care to keep such place, means and appliances in the same condition. The evidence that the appellee was injured on account of the defective step was not sufficient to hold appellant liable; but it was necessary to show that it did not exercise proper care in the premises. St. Louis, Iron Mountain & Southern Railway Company v. Gaines, 46 Ark. 555; Little Rock, Mississippi River & Texas Railway Company v. Leverett, 48 Ark. 333; Emma Cotton Seed Oil Co. v. Hale, 56 Ark. 232; Park Hotel Co. v. Lockhart, 59 Ark. 465.
In the case at bar appellant employed inspectors to inspect the car. The evidence shows that a step was defective, and that this could have been discovered by proper inspection, and that its appointed agents for that purpose, with ample opportunity and means to do so, failed to make the discovery. Appellant, under the circumstances, ought to have known through these employees that the step was defective. The jury could reasonably have inferred from the evidence that its failure was due to neglect. The appellee and the inspectors, being in different departments of service, were not fellow servants under the statute in force at the time of the injury (Kirby’s Digest, § 6659), and appellant was liable for the consequences of the negligence of inspectors to appellee. St. Louis, Iron Mountain & Southern Railway Company v. Holmes, 88 Ark. 181.
The court gave the following instruction to -the jury over the objection of the defendant:
“3. If you find that the defendant company in this case is liable under tihe instructions heretofore given, and that the plaintiff received the injuries complained of in the manner alleged, and that at the time of such injury he was predisposed to hernia, but otherwise in good health, and that said injury was solely excited or caused by his fall from the car step described in the evidence, without his fault, and that his injury, whatever you find that to be, has directly resulted therefrom, then you are instructed that the plaintiff is entitled to recover to the fullest extent of whatever you find his injuries so received to warrant, notwithstanding such predisposition or weakness of the parts in regard to hernia.” This instruction states a rule of law well sustained by the authorities. Louisville, etc., Railway Company v. Falvey, 104 Ind. 409, 426-428; Crane Elevator Co. v. Lippert, 63 Fed. 942, 948; Vosburg v. Putney, 86 Wis. 278; Herndon v. Springfield, 119 S. W. 467; Watson on Damages for Personal Injuries, § § 219, 220; 1 White’s Personal Injuries on Railroads, § 170; 13 Cyc. 30, 31, and cases cited.
The evidence was sufficient to sustain the verdict.
Judgment affirmed. | [
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Hart, J.
(after stating the facts). 1. At the request of the appellee the court instructed the jury that the law did not require him to furnish the insurance company with a proof of loss in order to recover the amount due for the destruction of his house by fire. This instruction was erroneous.
It has been expressly held by this court that in such cases the failure to present the proof of loss within the time prescribed by the terms of the policy works a forfeiture of the right to claim anything on the policy. Teutonia Insurance Co. v. Johnson, 72 Ark. 484; Arkansas Mutual Fire Insurance Co. v. Clark, 84 Ark. 224; Minneapolis Fire & Marine Mutual Ins. Co. v. Fultz, 72 Ark. 365.
But appellants are in no attitude to complain of any of the instructions given by the corirt at the instance of the appellee. The record shows that the instructions were given over their objections, but it also shows that appellants did not save any exceptions to the action of the court in giving any of the instructions asked by the appellee.
In the case of Meisenheimer v. State, 73 Ark. 407, the court said: “An objection precedes an exception. The objection calls for a ruling by the trial court, and the exception directs attention to and fastens the objection for a review on appeal. If a party does not follow the ruling on his objection by clinching it with an exception, he waives the objection.” See also Cammack v. Southwestern Fire Ins. Co., 88 Ark. 505.
Hence by the rules of practice appellants waived their objec tion to the instructions given at the instance of the plaintiff by not excepting to the ruling of the court in giving them, and they are not before us for review.
2. Counsel for appellant also contends that the court erred in refusing instruction No. 3 asked by them. The instruction recites the clause in the policy with regard to the proof of loss, and tells the jury that it was the duty of appellee to comply with the provisions thereof, and that if he did not, “within thirty days after the fire, make out and deliver to defendant company a proof of loss, signed and sworn to by plaintiff, stating his knowledge and belief as to the origin of the fire, the time of the fire, plaintiff’s interest and the interest of all others in the property destroyed, the cash value of each item destroyed and the amount of the loss thereon, all incumbrances thereon, all other insurance covering said, property, all schedules and descriptions in said policy, any change in the use, title, occupation, location, possession or exposure of said property, by whom occupied and for what purpose the building insured was occupied at the time of the fire, then said policy becomes inoperative and void because of such non-compliance by plaintiffs, and plaintiffs will not be entitled to any recovery, and you must find for the defendants.”
This instruction should not have been given. It directly and plainly made the verdict depend upon the proposition stated in it, and excluded all other issues. St. Louis, I. M. & S. Ry. Co. v. Smith, 82 Ark. 105; Aluminum Company of North America v. Ramsey, 89 Ark. 522.
The obnoxious feature of the instruction is that it entirely ignored appellee’s contention that the insurance company waived all other proof of loss than the one sent to it, and that it was estopped from denying its sufficiency.
We have repeatedly held that a failure to furnish proof of loss of the insured property as required by the terms of the policy may be waived by the insurer. Minneapolis Fire & Marine Mutual Ins. Co. v. Fultz, 72 Ark. 365; Home Insurance Co. v. Driver, 87 Ark. 171, and cases cited; Hartford Fire Insurance Co. v. Enoch, 79 Ark. 475.
Appellee testified that he attempted to comply with the provisions of. the policy in regard to the proof of loss; that he made out a list of the articles burnt and of the articles saved, with the value set opposite each item thereof, swore to the correctness of it, and mailed it to the insurance company, together with a statement on a separate sheet of paper about the origin of the fire and when it occurred; that this was done within the time prescribed by the terms of the policy, and that the company never made any objections to it.
Appellant company admits having received the list of articles referred to, but denies having .received the statement which appellee says he inclosed with it about the origin of the fire and where it occurred. Appellee’s testimony showed an intention on his part to comply with the requirements of his policy with respect to the proof of loss, and, if it was incomplete, good faith demanded that the insurance company should point out to him in what respect it was lacking.
“The conditions of insurance policies are numerous, varied and minute in details. These are doubtless essential for their protection against fraud, and for their complete security; but they are perplexing to persons not familiar with their requirements and construction. Tó prevent sharp practice and unfair advantage from a superior knowledge, it seems most just, and without imposing an undue burden on the insurance companies, to hold that, when the preliminary proofs are received, if there are any defects, they shall so state to the insured, that he may amend them in time, if they can be amended. If they intend to deal fairly with an honest loss, why should they not so state? If they believe the claim of a loss is a fraud, let them so state, and contest it on that ground. The interests involved are so great, so many persons hold all they possess dependent on these securities, that both insurers and insured should be~held to the utmost good faith, and such has been the manifest purpose of the courts.” Jones v. Mechanics’ Fire Insurance Co., 13 Am. Rep. (N. J.) 405.
In the cases of Hartford Fire Insurance Co. v. Enoch, and Home Insurance Co. v. Driver, supra, this court quoted with approval from the Supreme Court of the .State of Pennsylvania, the following:
“If the insured in good faith and within the stipulated time does what he plainly intends as a compliance with the requirements of his policy in respect to proof of loss, good faith requires that the insurer shall promptly notify him of objections thereto, and mere silence may so mislead him to his disadvantage as to be of itself evidence of a waiver of estoppel.”
3. Counsel for appellants assigns as error the refusal of the court to give instruction No. 4 asked by them. The instruction reads as follows:
“4. The jury are instructed that the furnishing of proofs of loss within thirty days from the date of the alleged fire is, in this case, a condition precedent to recovery by plaintiffs, and failure to comply therewith is a valid defense to the action upon the policy as if it were made an express ground of forfeiture.”
This instruction was also properly refused. It made the furnishing of proof of loss within the stipulated time by the appellee a condition precedent to his right of recovery, and entirely ignored his contention as to the waiver of the proof of loss by the insurance company, and its estoppel to question the sufficiency thereof. It should have contained the qualification, “unless you find that the company has waived the forfeiture,” or words of like effect. St. Louis, I. M. & S. Ry. Co. v. Smith, 82 Ark. 111.
This form of instruction was criticised and condemned in the case of Ark. Mid. Rd. Co. v. Rambo, 90 Ark. 108. In that case the instruction was given, and ihe court held that it should have been met by a special and not a general objection because the vice of it had been taken away by other instructions given at the request of the complaining party. But it is not error to refuse to give an,instruction which, otherwise containing a correct statement of law, is obnoxious in presenting the theory of one party to the exclusion of that of his adversary.
The court gave, at the request of appellants, a general instruction on the same point which contained the proper qualification. But appellants were entitled to a special instruction covering the point, had they asked a proper one. The court however was not bound to modify or qualify the instruction so as to remedy-its defects. The party complaining must ask a correct instruction. Horton v. Jackson, 87 Ark. 528.
4. Counsel for appellant contend that the court erred in refusing to give the following instruction:
“5. The jury are instructed that the sureties upon the bond of defendant sued on herein are liable only for such losses as accrue, on policies issued during the life of said bond on property situate in the State of Arkansas; and if you find from the evidence the policy sued on was in fact issued before the bond was made, plaintiffs are not entitled to recover on it, as against the sureties.”
The instruction should not have been given. The bond was executed pursuant to section 4 of the act of April 24, 1905. Acts of 1905, p. 489.
As was said in the case of Ingle v. Batesville Grocery Co., 89 Ark. 378: “The liability of the insurance company is fixed by the policy of insurance, without regard to the character of the insurance company to be made liable. Block v. Valley Mutual Ins. Association, 52 Ark. 201. But the liability of the sureties on the bond is fixed by the bond itself.”
The bond by its terms is conditioned that the company “shall promptly pay all claims arising and accruing to any person or persons during the term of said bond by virtue of any policy issued by any such company or association in this State, whenever the same shall become due.”
The property insured was situated in .this State. By the provisions of the bond, the sureties were obligated to pay all claims accruing to any person during the term of the bond. The claim accrued when the insured had a present enforceable right of action against the insurance company.. Manifestly, his claim, against the company accrued during the term of the bond. The bond was executed on the 7th day of May, 1907, and was for a period of one year. The fire occurred on the 29th day of October, 1907. In accordance with the ruling in tne case of United States Fidelity & Guaranty Co. v. Fultz, 76 Ark. 410, we hold that the bond was liable.
Counsel for appellant also insist that there was a misjoinder of parties defendant. It is not necessary for us to determine whether the bondsmen could be sued in the same action with the company.
The sureties adopted the answer of the insurance company, and voluntarily went to trial .on the issues raised by the pleadings. Moreover, “when causes of a like nature or relative to the same question are pending before any of the circuit or chancery courts of this State, the court may' make such orders and rules concerning the proceedings therein as may be conformable to the usages of courts for avoiding unnecessary costs or delay in the administration of justice, and may consolidate said causes when it appears reasonable to do so.” Acts of [905, p. 798.
The court having this power to consolidate the suits if brought separately, no prejudice could have resulted from the course adopted. Mahoney v. Roberts, 86 Ark. 130; Ashford v. Richardson, 88 Ark. 124.
Finding no prejudicial error in the record, the judgment is affirmed. | [
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Frauenthae, J.
The plaintiff, H. A. Parker, instituted this suit against the defendant, PI. A. Carter, on October 28, 1903, in the Monroe Circuit Court, alleging that the defendant was indebted to him in the sum of $887.87 upon a promissory note, and also alleging that there was a long account existing between the parties, but giving no items and filing no statement of any account. He asked for judgment for $887.87.
The defendant filed an answer, in which he denied the execution of any note, and denied that he was indebted to plaintiff on any note or on any account, and pleaded the statute of limitations against any such alleged indebtedness. He also alleged that plaintiff 'had on February 21, 1889, executed to him a note for $400, upon which there was a balance unpaid of $44.21.
Thereafter the plaintiff filed an amended complaint, in which he alleged that defendant was indebted to him for various items of attorney’s fees, beginning in 1882 and extending to 1894; and also alleged that oh February 14, 1898, he sold to defendant certain real estate in Brinkley, Arkansas, for the sum of $2,000, which was paid in the following manner: defendant conveyed to certain parties for plaintiff’s benefit some lots in Brinkley, and of the balance he paid $550 by check, and the remainder of $565.00 was to be paid in the manner set out in a writing which was signed by plaintiff at the time of the execution of the deed by him and is as follows:
“This memoranda made and entered into this the 14th day of February, 1898, by and between H. A. Carter on one part and H. A. Parker of the other, as follows: Said Parker has this day sold the J. M. Folkes property to H. A. Carter for a certain sum in money and property. Now, H. A. Carter this day pays H. A. Parker $550.00 in cash, and owes said Parker a balance of $565.00, which is to be paid at the end of the year; and note is to be given when Parker and Carter settle up their other matters. H. A. Parker is to execute deed to Carter. This agreement is signed in duplicate.
“H. A. Parker.”
This instrument is the writing upon which plaintiff instituted this suit. He alleged that this instrument was executed in duplicate, one being retained by him and the other by defendant. Plaintiff in the amended complaint also asked for an accounting between the parties. Upon the motion of the plaintiff the cause was transferred to the chancery court. The defendant denied every material allegation of the amended complaint, and pleaded the statute of limitations against each item of said alleged indebtedness.
The cause was tried by the chancery court upon the pleadings and depositions filed in the case; and that court found that, if plaintiff, who is an attorney at law, ever had a cause of action for the matters set out in the complaint and amended complaint, it was barred by limitation, and thereupon dismissed the same. And from that decree the plaintiff prosecutes this appeal.
It appears from the testimony that the defendant employed the plaintiff to attend to a number of suits and matters involved in litigation from time to time extending from 1882 or 1883 to 1893 or 1894. The plaintiff claims that for his services in attending to a great number of these suits the defendant had not paid him. The defendant testified that he had paid plaintiff for all his services as such attorney in all these matters. A great deal of testimony was taken relative to these items; but, however the preponderance of the testimony may be as to the respective contentions of the parties, it appears that the claims of plaintiff were separate and independent items of charges for these different ser vices, and that there was no running mutual account between the parties; and the last item of charge for said service was in 1894. On February 21, 1889, plaintiff borrowed from defendant $400, and on that day executed his note to defendant for that sum due December 1, 1889, with ten per cent, interest per annum from date till paid. On July 13, 1893, by agreement of both parties and at the direction of plaintiff, a credit of $150 was indorsed upon the note in payment of attorney fees of the plaintiff.
Upon February 14, 1898, the plaintiff sold to defendant certain real estate in Brinkley, Arkansas, and on that day executed to him a deed, the descriptive part of which is as follows:
“Know all men by these presents: That we, H. A Parker and May B. Parker, his wife, for and in consideration of the sum of two thousand dollars ($2,000) to us in hand paid by H. A. Carter, Sr., of which amount the sum of $1,295 is -paid in hand, and the residue is paid in property, to-wit: Two houses and one lot in the town of Brinkley, which houses and lot are deeded to one L. J. Folkes on this date.” And at the same time the plaintiff drafted the writing set out above in said amended complaint in duplicate and signed the same. He testified that it was understood that defendant should also sign the said writing in duplicate, but by oversight he did not do so. The defendant denies that it was agreed or understood that he was to sign the writing. But it is undisputed that plaintiff delivered to defendant one of these written instruments duly signed by plaintiff, and that defendant accepted and took same and retained it from that day to the trial.
The plaintiff contends that this was. the written evidence of the agreement between the parties, and, being accepted and acted on by the defendant, was a written contract binding upon him, although it was not actually signed by him; that his account for fees was sufficient to pay off the note executed by him to defendant, and that the defendant owes the amount represented by this writing. And it is upon this written instrument that the cause of action of the plaintiff is founded.
The defendant testified that he purchased the real estate from the plaintiff for which he gave him the check for $550, and conveyed certain property for his benefit, and that the balance of $565 was to go in payment of the note which he held against plaintiff.
The preponderance of the testimony establishes that the above writing, signed by plaintiff in-duplicate, was executed at the time of the execution of the deed, and that one of these written instruments was accepted by the defendant and retained by him, and that it was understood at the time by the parties that it was the written evidence of their agreement. The contract of' the sale of the land was executed, and not executory, and was thus performed by the defendant talcing possession of the land under the deed; and this writing was but the evidence of the manner of the payment of the consideration. It thereby became a contract between the parties founded upon a writing, though signed by only one of the parties. As is said in 1 Page on Contract, § 50: “A written contract by one party may be accepted by the other party assenting to it and acting upon it, even if he does not sign it.”
A written contract, not required to be in writing, is valid if one of the parties signs it and the other acquiesces therein. The contract or agreement is thus evidenced by the writing, and Where the party accepts and adopts the writing as the evidence of the contract he becomes bound by its terms. And in a great many jurisdictions it is held that a deed poll, when accepted by the grantee, becomes the mutual contract of the parties, and the promise of the grantee, therein provided for, is not a verbal one, so as to be governed by the statute of limitation respecting verbal contracts; but that the acceptance of the deed by the grantee makes it a written contract, and the obligations created by it are evidenced by a writing and governed by the provisions of the statute of limitation respecting written instruments. Washington v. Soria, 73 Miss. 665; Fowlkes v. Lea, 84 Miss. 509; Elliott v. Saufley, 89 Ky. 52; Midland Ry. Co. v. Fisher, 125 Ind. 19; Bowen v. Beck, 94 N. Y. 86; Goodwin v. Gilbert, 9 Mass. 510; Schumacker v. Sibert, 18 Kan. 104; Huff v. Nickerson, 27 Me. 106.
- The above writing, although signed alone by plaintiff, was intended by the parties as an evidence of the agreement therein set- out, and was accepted as suoh and acted on by the defendant. It was therefore an instrument in writing governed by the pro visions of the statute of limitations respecting written contracts. And any obligation assumed by defendant as shown by said writing was not barred at the time of the institution of this suit. But by the terms of the contract thus entered into by the parties on February 14, 1898, it was provided that there should be a settlement of the indebtedness due at that time by the parties, one to the other; but that settlement, under the agreement, could apply and actually did apply only to such indebtedness as was at that time legally enforceable and existing, and did not and could not apply to any debt at that time not enforceable because barred by limitation.
The plaintiff claims that he had performed services for the defendant as his attorney in the prosecution and defense of numerous suits and proceedings, amounting in the aggregate to a sum exceeding the amount that was due at that time with interest upon the note given by him to defendant in 1889. But the preponderance of the testimony does not tend to prove that any of these items of charges for fees, except the gross item of $150 of date July 13, 1893, was to go as a payment on said note or that the defendant made any agreement of that kind. So that the charges in favor of plaintiff against defendant for fees constituted an independent account, which could only be used as a set-off and not as a payment. Before there can be a payment on an indebtedness, it is not only essential that there should be a delivery of the property by the debtor thereon, but there must also be an acceptance thereof by the creditor. 30 Cyc. 1180. Before a .cross demand or set-off can constitute a payment, it is indispensable that an agreement to that effect shall be proved. Hill v. Austin, 19 Ark. 230; Quinn v. Sewell, 50 Ark. 380.
In this .case the evidence does not prove that there was an agreement between the parties that these fees should go- as a payment or as payments on said $400 note. The last item of these fees was charged and was therefore payable in 1894; and each .item became barred after three years. Therefore on February 21, 1898, each of -these items of fees claimed by plaintiff was barred by the statute of limitation. Higgs v. Warner, 14 Ark. 192; McNeil v. Garland, 27 Ark. 343; 25 Cyc. 1081.
The note for $400 which was executed by plaintiff to • defendant on February 21, 1889, was not barred on February 14, 1898, for the reason that by the agreement of both parties a payment of $150 was made thereon by plaintiff on July 13, 1893. That was the only payment made on the note; and, as it bore ten per cent, interest per annum from date until paid, there was more than $565 unpaid thereon on February 14, 1898; and therefore it fully paid and extinguished the amount named in the said writing of February 14, 1898, as due to plaintiff.
It is contended that the following letter written by defendant to plaintiff was a sufficient written acknowledgment to make a new point from which the statute of limitation should run as to all the claims of plaintiff for said attorney’s fees:
“Brinkley, Ark., April the 3d, 1900.
“H. A. Parker, Clarendon, Ark.
“Dear Sir: Your favor containing statement from you as regards our settlement, with statement as it were from beginning to end of the whole matter, as you suppose. I would say to you to come up and see me, and let us settle like gentlemen, as you know I have always tried to treat you right. I hold your statement and our settlement of July 23, 1893, which stands as a cr. on your note of borrowed money from me. And then I hold protested check for $100 on Bank of Helena, Ark., dated March the 15, 1894, which I at that date give your note cr. for, and on the 18th of March I received notice of your check to me being protested, and I notified you either on the 18th or 19th that the check was protested. It was on the 20th. I have looked it up. Now, I would say, if you will come up, you and I will try and see what we can do. You stated some rather sarcastic things in your letter and assertions, but I have a few things to say as regards the whole matter, and it would in my opinion be better for us to meet and try and settle like gentlemen, as we have had dealings a long time. So let us meet and settle. I would have answered or rather written you sooner, but was in Memphis when it came, and I have been sick; hardly able to be up now. So let me hear from you as regards the matters, and oblige.
“Yours &c.
“Would say it was understood that we were to settle the matter between us when I bought the Fowlkes property of you.
“Yours &c.
“H. A. Carter.”
It is contended that because in this letter there appears a written agreement “to settle” this is sufficient to remove the statute bar. But this language in the letter is not equivalent to an agreement to pay. It is not a recognition of the debt claimed; it is an offer to adjust matters; and the tenor of the letter clearly shows that it is rather a denial of any indebtedness. In order that a written acknowledgment shall be sufficient to remove the bar of the statute, it must import an unqualified acknowledgment of the debt as one that is due and binding. Beebe v. Block, 12 Ark. 134; Smith v. Talbot, 11 Ark. 666; Harlan v. Bernie, 22 Ark. 217.
It is contended by plaintiff that there was a mistake made in the amount of the balance as named in the above writing sued on, and that instead of $515 it should have been $745. He claims that the total amount of the consideration in said deed from him to defendant was $2,000; that part thereof was paid by property, leaving $1,295 as set out in said deed; that of this balance $550 was paid by check, and thus left a remainder of $745, instead of $505-
But the defendant testified that the value placed on the property which defendant conveyed, together with the $550 check, left the balance of $565, and that there was no mistake in this amount. Nowhere in the testimony does it appear clearly what value was placed on the property conveyed by defendant. When the plaintiff instituted this suit on the above writing, he only claimed that it was for $565; and nowhere in his pleadings does he set out that there was a mistake made in this amount; and he does not ask for a reformation of the written instrument in this particular.
When the plaintiff first gave his testimony in the case, he testified that the amount of $565 as set out in this writing was correct, and it was only on being recalled, and ten years after the date of the execution of this instrument, that he for the first time claimed that there was a mistake made therein. If, under the pleadings in this case, it could be held that this written instrument could be reformed, we do not think that the proof is clear and decisive that a mutual mistake was made by both parties in the amount of this balance. If a mistake was made, it may have been in the amount of $1,295 named in the deed.
To entitle a party to reform a written instrument upon the ground of mistake, it must be clearly shown that the mistake was common to both parties, and that the instrument does not express the agreement as understood by either; and such mistake must appear beyond reasonable controversy. McGuigan v. Gaines, 71 Ark. 614; Goerke v. Rodgers, 75 Ark. 72; Arkansas Fire Ins. Co. v. Witham, 82 Ark. 226; Varner v. Turner, 83 Ark. 131; Cherry v. Brizzolara, 89 Ark. 309.
We have carefully examined the testimony in the case, and we are of the opinion that all the indebtedness claimed by the plaintiff against the defendant, and which is not set out in the written instrument dated February 14, 1898, was barred by the statute of limitation before the 14th day of February, 1898, and that this statute bar has not been removed; and that all indebtedness claimed by the plaintiff against the defendant under and by virtue of said written instrument was paid and extinguished by indebtedness due by the plaintiff to the defendant on said note.
It follows therefore that the* decree of the chancellor in dismissing the complaint and cross-complaint was correct. The decree is affirmed. | [
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Wood, J.
(after stating the facts.) The appellee’s complaint should have been dismissed for want of equity. For, conceding that appellee under the will of his grandfather was the owner of the land in fee at the death of his father (Wilmans v. Robinson, 67 Ark. 577), yet the decided preponderance of the evidence shows that he had sold same to appellant. We have given in the statement of facts the substance of all the evidence that relates to the sale of the land by appellee to appellant, and practically all of it, except appellee’s own testimony, shows that he made such sale. Appellant testifies that he made the contract with appellee and his mother to purchase the land from them for a consideration of fifteen hundred dollars, and that they afterwards met him at the store of Wolff & Goldman for the purpose of consummating the trade, i. e., making him a deed and getting the purchase money. He shows that he met them there, and that he performed his part of the contract by paying the purchase money, and that Mrs. Mary V. performed her part by signing the deed, and that appellee was present ready and willing to sign, but was dissuaded from doing so by the advice of the attorney of appellant that it was unnecessary. The attorney was of the opinion that appellee had no title, and therefore -it was unnecessary for him to sign. But the proof shows that he was there for that purpose. It is clear that the deed would have been signed by him but for the mutual mistake of law on his part and on the part of appellant caused by the opinion of counsel. The proof shows that appellee fully intended to sign the deed and thereby convey all the interest he might have. Equity looks on that as done which ought to have been done. “Equity imputes an intention to fulfill an obligation.”' These familiar maxims of equity are sufficient authority for denying to appellee under the evidence in this record the relief which he seeks, and for granting to appellant the relief sought by his cross-complaint. Smith’s Principles of Equity, pp. 15, 16; 1 Pom. Eq. Jur. § 363, et seq., 368; Fetter on Equity, §§ 10, 11.
The proof clearly takes the case out of the operation of the statute of frauds, for appellant paid the purchase money and went into possession under his contract of purchase made with appellee and his mother, and made permanent and valuable improvements. Arkadelphia Lumber Co. v. Thornton, 83 Ark. 414, and cases there cited.
The decree is therefore reversed, and the cause is remanded with directions to enter a decree in, accordance with this opinion, decreeing the title to the land in controversy to be in, appellant, and granting the prayer of his cross-complaint for specific performance, and dismissing appellee’s complaint for want of equity. | [
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Battue, J.
A1 Smith was' indicted for, and convicted of, perjury. Judgment was rendered against him on that conviction, and he appealed.
He demurred to the indictment, and his demurrer was overruled. So much of the indictment as is necessary to consider is as follows:
“And the said A1 Smith did then and there before said grand jury, upon the investigation of a charge against some persons to the grand jurors unknown for selling ardent liquors without license in the county, district and State aforesaid, on or about the 20th day of February, 1908, did then and there, under the sanction of said oath administered to him as aforesaid, wilfully, corruptly and feloniously state ‘that he did not about the 20th day of February, 1908, or at any other time, deliver to Will Copley, at or near the town of DeVall’s Bluff, any whisky whatever; that he and Will Copley together did ab'out the 20th day of February, 1908, order two quarts of whisky from Pete Anderson at Newport, Arkansas, and remitted for same by postoffice money orders procured at the postoffice at DeVall’s Bluff,’ which said evidence was material in preventing the grand jury as aforesaid "from returning an indictment against the party from whom the said A1 Smith did purchase the whisky aforesaid, and who is to the grand jurors unknown, for selling ardent liquors without a license, when in truth and in fact the said A1 Smith did on or about February 20, 1908, purchase and deliver to Will Copley at or near the town of DeVall’s Bluff, county, district and State aforesaid, from some one to the grand jurors unknown, one pint of whisky; and the said A1 Smith did not order whisky from Pete Anderson at Newport, Arkansas, and did not remit the money from same by postoffice money orders procured at the postoffice at DeVall’s Bluff, which said statements so made by the said A1 Smith as aforesaid were feloniously, wilfully and corruptly false, and the said A1 Smith knew the same to be false when he made them, against the peace and dignity of the State of Arkansas.”
It is shown in the indictment that the grand jury “of the Southern District of Prairie County were investigating a charge against a person from whom A1 Smith had purchased whisky, to the grand jury unknown, for selling ardent liquors without license, on or about the 20th day of February, 1908, and that A1 Smith, under an oath administered to him, wilfully, corruptly and feloniously stated as charged in the indictment, and that such evidence was material in this, that it prevented them from indicting such person for selling ardent liquors without license, and that the facts were as stated in the indictment.”
Appellant insists that the alleged false statement made by him under oath was not sufficiently negatived in the indictment in this, that it is alleged in the indictment that he stated that he did not about the 20th day of February, 1908, or at any other time, deliver to Will Copley, at or near the town of DeVall’s Bluff, any whisky whatever, when in truth and fact he did, on or about the 20th day of February, 1908, purchase and deliver to Will Copley, at or near the town of D'eVall’s Bluff, one pint of whisky. The statement of the contention proves that it is not true. The indictment affirms what was denied, but affirms more, by saying that he purchased and delivered to Will Copley one pint of whisky.
It is alleged that the indictment is defective because it does not show that the alleged false statements were material.
Perjury is defined by the statute as follows: “Perjury is the wilful and corrupt swearing, testifying or affirming falsely to any material matter in any cause, matter or proceeding before any court, tribunal, body corporate or other officer having by law authority to administer oaths.” Kirby’s Digest, § 1968.
Section 1970 of Kirby’s Digest provides: “In indictments for perjury it shall be sufficient to set forth the substance of the offense charged, and by what court or before whom the oath or affirmation was taken, averring such court or person to have competent authority to administer the same, together with the proper averments to falsify the matter wherein the perjury is charged or assigned, without setting forth any part of the record, proceeding or process, either in law or equity, or any commission or authority of the court or person before whom the perjury was committed, or the form of the oath or affirmation, or the manner of administering the same.”
Under a statute substantially the same as section 1970 it was held in People v. DeCarlo, 124 Cal. 462, 464, 467, that an averment in an indictment that the false testimony given by the defendant was material to the “issues tendered in said cause” was a sufficient averment of its materiality, without specifying any particular issue upon which it was material or how it was material.
The rule is that in indictments for perjury the false testimony or statement for which the defendant is indicted may be shown by the indictment to be material, either by direct averment, or by allegation from which their materiality appears. “The rule of pleading is satisfied by a direct averment, and with that the question of materiality becomes one of proof of that averment. It is only when there is no averment of materiality that the indictment is insufficient unless it alleges the facts from which the law infers the materiality.” Commonwealth v. McCarty, 152 Mass. 577, 580; People v. Ennis, 137 Cal. 263; Greene v. People, 182 Ill. 278; Flint v. People, 35 Mich. 491; 1 Russell on Crimes (International Ed. 1896), page 354; 30 Cyclopedia of Law and Procedure, 1435, and cases cited.
Tested by the foregoing rules, the indictment is sufficient as to the materiality of the alleged false statements or testimony of the defendant.
But it is contended that the evidence adduced in the trial of the defendant was not sufficient to prove the falsity or materiality of such statements or testimony. S. E. Bowman, the foreman of the grand jury before whom the defendant testified as alleged in the indictment, testified that the grand jury had heard that A1 Smith had been seen 'with whisky on two or three different occasions, and had given whisky to Will Copley. This was the subject of inquiry at the time Smith was before the grand jury. He was asked if he had given Will Copley some whisky, and about the possession of whisky on a certain day, the object being to ascertain from whom he purchased the whisky. In reply to these questions he testified as follows: “I never at any time delivered any whisky to Mr. Will Copley. William Copley and I did order some whisky together about the time boat was here (DeVall’s Bluff) which was about 18th or 20th day of February, 1908. We ordered two quarts of whisky from Pete Anderson at Newport, Arkansas, remitting in two separate money orders. Orders were taken out in postoffice at DeVall’s Bluff, and it came in name of A1 Smith. I did one time tell William Copley that I knew where I could get some whisky in DeVall’s Bluff. When I told Copley this, I thought I was- telling the truth. I did one time get some whisky at DeVall’s Bluff.” This testimony was shown to be false. The official records of the postoffice at DeVall’s Bluff were read as evidence, and they showed that no money orders were purchased in that office by A1 Smith. This evidence was corroborated by the testimony of a witness who did not make it, which showed that he had examined it and found from information he had outside the record that it was correct. This is sufficient to prove the falsity of Smith’s testimony before the grand jury. Was it material? He admits that he received two-quarts of whisky in DeVall’s Bluff, but falsely accounted for it. The grand jury were endeavoring to find out from whom he purchased it, with the view of ascertaining whether it had been sold' by a person without license to sell liquors, within their jurisdic tion. This was their duty. His false testimony prevented the investigation.
Bishop, in his excellent work on Criminal Law, says: “Whatever evidence tends to influence the result on the direct or any collateral issue.is material within our present doctrine, but what is not thus adapted to affect any result is not thus material. * * * * It is perjury to swear falsely to what, if true, would merely cause the particular proceeding to be abated.” 2 Bishop’s New Criminal Law, § 1032; Reg v. Mullany, Leigh & Cave, Crown Cases, 593.
The false testimony under consideration comes within the spirit, if not the letter, of the rule thus laid down; for its necessary effect was to suspend, if not prevent, further investigation of the present subject of inquiry. It was material.
Judgment affirmed. | [
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Battue, J.
W. F. Bozarth, complaining of the Leola Lumber Company, alleged that he, at the request of the defendant, performed work, labor and services for it in cutting and preparing logs and timber for its mill at agreed and stipulated prices amounting in the aggregate to the sum of $892.78; and asked for judgment for that amount.
The defendant denied the allegations of the complaint, and answered further as follows:
“For further answer defendant says that its business or main office is at Pine Bluff, Arkansas, and its timbered interest, saw mills and saw mill property are at L'eola in Grant County; that said corporation was organized, as shown by its articles of incorporation, to buy and sell timber and timbered lands and run a saw mill; that Lynn Butler was vice-president of defendant corporation till the-day of July, 1908, and as such was in charge of defendant’s saw and planing mills located at and near Leola; that on or about the-day of-, 1908, the plaintiff W. F. Bozarth and Lynn Butler, while the latter was yet vice-president of defendant’s company, formed a partnership known as Bozarth & Company to do a saw milling business at Leola in said county, and planned and conspired together to defraud the defendant; that, pursuant to said conspiracy to defraud the plaintiff, W. F. Bozarth and Lynn Butler purchased two saw mills of their own on or about the-day of-, 1908, placed them in operation and begun cutting defendant’s timber without the knowledge or consent of defendant, whose mills were closed down and remained idle, all of which was very much to the loss, hurt, and injury of defendant; that plaintiff Bozarth and Lynn Butler, in operating their own mills above set out, used the log wagons, equipments, mules and oxen of the defendant, and thereby became indebted to the defendant in a large sum, to the defendant unknown; and that the said W. F. Bozarth and Lynn Butler, in the operation of their saw mills, supplied their logging teams with feed belonging to the defendant, thereby becoming indebted to the defendant in a further sum unknown to it. Defendant believes, and therefore alleges as true, that, while operating their own mills, the plaintiff W. F. Bozarth and Lynn Butler unlawfully and without right charged their private labor account to this defendant, and the defendant, being at the time in ignorance of the true state of facts, paid the same, and the plaintiff W. F. Bozarth and Lynn Butler thereby became indebted to the defendant in a large sum to it unknown. That the advances, supplies and moneys and timber cut, paid by defendant to the plaintiff W. F. Bozarth and Lynn Butler, as above set out, are largely in excess of the sum sued on herein, but the defendant sayeth further that on the-day of July, 1908, Lynn Butler ceased to be vice-president of defendant corporation or have any interest in the same, but refused and still refuses to deliver to the defendant its time hooks or any other books, papers and memoranda belonging to the defendant', whereby the truth may be determined and an accounting had between the plaintiff W. F. Bozarth and Lynn Butler on the one side and defendant on the other.
“Wherefore defendant says that it has no adequate remedy at law, and prays that Lynn Butler be made a party hereto, and that this cause be transferred to the equity court, and an accounting be had between the defendant and the plaintiff W. F. Bozarth and Lynn Butler and for judgment against said W. F. Bozarth and Lynn Butler or either of them for such sum as the proof may warrant, and it will ever pray.”
The court refused to transfer the cause to a court of equity. Lynn Butler was not made a party. Some evidence tending to-prove that he was a partner of the plaintiff in the matters in controversy was adduced.
The defendant asked the court to instruct the jury as follows :
“If you find from the evidence that plaintiff, W. F. Bozarth,. was a partner with’ Lynn Butler in the operation of the saw mills at which he claims to have cut lumber for defendant, then you are instructed that he is not entitled to maintain this suit, and your verdict should be for the defendant.” And the court refused to so instruct.
The jury returned a verdict in favor of the plaintiff for $800, and, judgment having been rendered for that amount, the defendant appealed.
The defendant failed to show such a complicated state of accounts between it and appellee as to make it necessary to transfer the cause to equity for adjustment. As to the discovery of facts within the knowledge of the appellee, if he resides in the county in which the action was brought or in an adjoining county, he could have been summoned by the appellant and compelled to testify as any other witness (Kirby’s Digest, § 6154); or if he did not reside in such counties, he could.have been compelled to respond to written interrogatories annexed to the answer. (lb. § 6158). The production of the books, papers and memoranda of the appellant in the possession of a witness, or a party to the action, needed as evidence, upon proper showing, could have been enforced; if in the possession of a witness, by a subpoena duces tecum (Kirby’s Digest, § 3111); if in the possession of a party, by an order of the court. Kirby’s Digest, §§ 3074-3078.
Under the statutes of this State all persons who are necessary to a complete determination and settlement of the questions involved should be made parties to an action. Kirby’s Digest, § 6011. Unless they are, they will not be bound by the judgment, and as to themselves may relitigate. Partners, in proportion to their interest, are entitled to be heard in the enforcement of all partnership claims, and are proper and necessary parties (30 Cyclopedia of Law and Procedure, 561, and cases cited), and should be made parties for the protection of the defendant against further litigation, and for the final settlement of the rights involved.
Reversed and remanded for a new trial. | [
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McCulloch, C. J.
On the petition of Hamilton and others, the county court of Cross County, at the April term, 1908, made an order in conformity with the statute in such cases prohibiting the sale or giving away of intoxicants, etc., within three miles of a certain school house in the town of Wynne. No one appeared to oppose the making of the order. It was not entered of record by the clerk during that term, but at the next term of the court it was duly entered by nunc pro tunc order.
The order is regular in form, and recites the finding by the court to the effect that the petitioners constituted a majority of the adult inhabitants residing within three miles of said school house. Thereafter appellant, Douglas, and another person filed in the circuit court of Cross County their joint petition for a writ of certiorari to review and quash said prohibition order, on the alleged ground that their names appeared on the petition without authority from them; that the names of several persons appeared on the petition more than once; that the petition did not contain a majority of the adult inhabitants residing within the radius named, and that for those reasons the county court was without jurisdiction to make the order. The circuit court denied the prayer of the petition, and an appeal was taken to this court.
The judgment and order of the county court is valid on its face, and recites the necessary jurisdictional facts. If all the allegations of appellant’s petition be taken as true, they only show that the county court made an error in deciding that the majority of the adult inhabitants within the radius named had petitioned for the prohibition order. The writ of certiorari cannot be used as a substitute for an appeal or writ of error for the mere correction of errors or irregularities of proceedings in inferior courts. Merchants & Planters Bank v. Fitzgerald, 61 Ark. 605, and authorities therein cited.
Appellant insists that, as he received no notice of the proceedings in the county court, and had no opportunity to appeal from the order, he is without a remedy unless one is afforded by the writ of certiorari. The statute does not require any notice of such proceedings to be given. The petitioners for prohibition proceed ex parte until some one appears to oppose the prayer, and then the proceeding is converted to some extent into an adversary one, and the parties thereto on either side aggrieved by the judgment and order of the court may appeal. The proceeding is conducted as a police regulation, and is in the nature of an election by the adult inhabitants residing within the stated territory, the county .court being the canvasser of the returns; and the sole question before the court is to determine whether or not the petition contains a majority of such adult inhabitants. McCullough v. Blackwell, 51 Ark. 159; Wilson v. Thompson, 56 Ark. 110; Williams v. Citizens, 40 Ark. 290.
No person has the right to contest the prayer of the petition or to appeal from the order except by being made a party to the proceeding. He cannot under other circumstances appeal from the order nor otherwise question its validity when the proceedings are regular and show the jurisdiction of the court.
Affirmed. | [
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Battle, J.
This is an original action in this court for a writ or order commanding the Hon. James D. Shaver, chancellor of the chancery court of Howard County, in the Sixth Chancery District of Arkansas, for a writ of procedendo or order from this court directing and requiring the said chancellor to take cognizance of and try the cause of DeQueen & Eastern Railroad Company v. P. S. Gilbert, brought to the February, 1909, term of the Howard Circuit Court, and by that court transferred to the chancery court of Howard County upon the filing of an answer and cross-complaint by the defendant setting up facts calling for the powers and jurisdiction of a court of equity. The petition, omitting the caption, is as follows:
“Comes P. S. Gilbert, petitioner, and for his cause of action herein states:
“1. That on the 28th day of September, 1908, the DeQueen & Eastern Railroad Company, an Arkansas corporation, filed its complaint in the Howard Circuit Court, alleging that it was a duly incorporated railroad company, organized and existing under the laws of Arkansas.
“2. That the defendant, P. S. Gilbert, is the owner of the S. W. J4 of S. W. %. of Sec. 32, Tp. 8 S., R. 28 West, in Howard County, and that, in order to successfully prosecute its businéss and fulfill the obligations of its charter, and in order that it may properly enjoy the benefits of its charter, it is obliged to construct its line of railroad over and across the above described land, and is obliged to secure the right of way across the same. That defendant refuses to sell to plaintiff the right of way across said tract, or to permit the railroad to be constructed over his said land.
“3. That said land is only partially improved, and that a very small part thereof is in cultivation.
“Prayer that a jury may be impaneled to determine the question of the amount of damages the defendant is entitled to receive for the right of way across said land, and that costs be adjudged against defendant.
“As supplemental to the complaint, the said DeQueen & Eastern Railroad Company presented to the Hon. James S. Steel, judge of the Ninth Judicial Circuit of Arkansas, in vacation, its petition setting up the fact that the complaint had been filed and summons issued, and asking that he make an order in vacation designating an amount to be deposited by said railroad company for the purpose of making compensation when the amount thereof has been ascertained by the proceedings instituted.
“Upon hearing said petition in vacation the said circuit judge directed the said railroad company to deposit in the Bank of Dierks $55 for the purpose of making compensation to the de fendant for damages for right of way across the land mentioned when the same shall have been ascertained according to law.
“In due time the .defendant in that cause, and petitioner in this, filed in the Howard Circuit Court his answer and cross-complaint, in which he admitted that he was the owner of said tract, and alleged that the plaintiff had taken possession of part thereof and constructed across same a tram railroad. In addition to the land mentioned in said complaint as belonging to petitioner herein, he alleged that he owned the following tract in section 31, immediately adjoining said section 32, to-wit: Beginning at the southwest corner of said section 31 and running thence west to Sand Creek; thence in a northeast direction up and along the channel of said creek to the line of said section 31; thence south to point of beginning. He denied that, in order to successfully prosecute its business and fulfill the obligations of its charter, and in order that it may properly enjoy the benefits of its charter, the said DeQueeii & Eastern Railroad was obliged to construct its lines of -railroad over and across the above described land or any part thereof. He denied that plaintiff was obliged to secure the right of way across the same or any part thereof. He admitted that plaintiff had offered to buy the right of way across his said land mentioned in plaintiff’s complaint, and that he had refused to sell same. Further, that he still refuses to permit plaintiff to enter any part of his land for the purpose of building said tram or spur track or any other track. He alleged, moreover, that plaintiff is not a common carrier over his said land or any part thereof, and never was, nor does it ever intend to be. The plaintiff has torti-ously and in disregard and defiance of the rights of plaintiff, vi et cirmis, entered upon the said land and built a tram over same. That in constructing the said tram the plaintiff, acting without the law and beyond any right of eminent domain, entered upon said land of defendant, made excavations and embankments through and upon which the said tramroad was -to run. That they cut up the said land and diverted the natural courses of the water so as to greatly damage his said land. That the direction of the tramroad is angling across the said land, thereby greatly damaging it for agricultural purposes and making the use of same inconvenient and of greatly less value than before the construction of said tramway. That, by reason of said construction of said tramroad, the defendants have been damaged in the use, value and enjoyment of said land in the sum -of two hundred dollars.
“The defendant further alleged that the purpose and object in building the said tramroad or spur over and across his land is to reach certain logs of the Dierks Coal & Lumber Company. That this spur or tram has been laid and constructed over and upon said land of defendant for no other purpose.' That the DeQueen & Eastern Railroad Company has- a number of spurs or trams in Howard County, used only for the purpose of hauling logs for said Coal & Lumber Company. That the said tramway has been constructed since about October 1, 1908. That it has, since that time, been continuously used by the said plaintiff as a log road and for no other purpose. That the plaintiff does not carry any passengers or freight for the public, or otherwise carry out the duty imposed by law on common carriers on or over the said tramroad or any part thereof. That it has never done so and does not intend to do so. That the appropriation of said land for use of said tram is not in good faith as a railroad company and common carrier of freight and passengers over the same or any part thereof. That plaintiff is attempting to misuse the power of eminent domain, and has not even attempted, in building and maintaining the said tram or spur, to comply in good faith or otherwise with the duty imposed by law on railroad corporations vested with the right of eminent domain. That plaintiff is seeking the aid of the courts in evading the laws of this State, and is tortio'usly taking and appropriating, over the continual objection and protest of defendant and in defiance of his rights in the quiet and peaceable enjoyment of the property, the land in controversy.
“Making his answer and all the statements and allegations thereof his cross-complaint, defendant prayed that the cause be transferred to equity; that he recover of plaintiff $250 damages to his land; that the plaintiff, its agents, servants, representatives and assigns and all and every one of them be perpetually enjoined and restrained from passing over, going upon or in any way interfering with the said land and every part thereof; that the title and claim of the defendants be forever quieted and assured; that the defendant have judgment against plaintiff for all costs, and have all other equitable and general relief.
“At the February, 1909, term of the Howard Circuit Court, the cause was transferred to equity. At the May, 1909, term of the chancery court of Howard County, the court, upon motion of the plaintiff, remanded the cause to the Howard Circuit Court.
“The chancery court was of the opinion that the facts set up in the answer and cross-complaint were not sufficient to justify a chancery court in taking jurisdiction, held that defendant had an adequate remedy at law, and refused to take jurisdiction and remanded the cause to the lower court.
“The foregoing are all the pleadings in the case and all the orders of the Howard Circuit Court and the chancery court of Howard County therein.
“The petitioner further states that the Hon. James D. Shaver refuses to try the said cause; that he contends that the defendant has an adequate remedy at law, and that he is not entitled to come into equity for relief under the foregoing pleadings. Further, that the said chancellor will not now nor at any future time take cognizance or jurisdiction of said cause and try the same on the merits unless directed and required so to do by this court.
“Premises considered, petitioner prays this court that, by virtue of its general superintending control over all inferior courts of law and equity, and by virtue of the appellate and supervisory jurisdiction vested in it by the constitution and the power given it to issue all remedial writs and to hear and determine the same, as well as by virtue of its inherent and common law powers as an appellate court, this court issue its writ of procedendo, or such other writ or process to which petitioner is entitled under the facts, commanding, requiring and directing the said James D. Shaver, chancellor of the Sixth Chancery District of Arkansas, to take and assume jurisdiction of said cause and try and determine the same, to the end that petitioner may have full and adequate relief and a complete remedy for all the wrongs he has suffered in the premises at the hands of the said DeQueen & Eastern Railroad Company, and that he have all other relief to which he may be entitled.
• “W. C. Rodgers, for petitioner.”
The respondent filed his answer to the petition, and denied that petitioner was entitled to the relief which he asks.
The effect of the answer and cross-complaint, filed by petitioner in the proceeding instituted by the DeQueen & Eastern Railroad Company in the Howard Circuit Court, was to show that the railroad company was seeking to condemn a right of way over petitioner’s lands solely and exclusively for a private- use, and to ask for an order to prevent it so doing.
In Mountain Park Terminal Railway Co. v. Field, 76 Ark. 239, the railway company sought to have lands of -defendant condemned for right of way. The defendant answered and alleged facts which showed that the railway company was seeking.-to have his lands condemned exclusively for private use. Plaintiff filed a motion to strike the answer from the files of the court, which the court overruled. After hearing all the evidence, the court found the allegations of the defendant’s answer to be true, and dismissed the petition of the plaintiff for right of way. In that case this court said:
“But are the defendants without a remedy ? Property cannot be taken from its owner without his consent, even under an act of the Legislature, and appropriated solely and exclusively to the private use of another person or corporation. Courts have the power to determine whether a particular use for which private property is authorized by the Legislature to be taken is in fact,a public use. As an incident to this power, in the absence of a statutory remedy, a court of equity has the power t.o restrain a railroad corporation from taking property for a private use. •,,.
‡‡&‡‡‡‡‡‡‡
“So, individuals cannot combine as a railroad corporation, and convert property of individuals solely and exclusively to. their private use. That would be an abuse of the power to form such corporations under the statutes, and contrary to their spirit and intent, and ‘may be restrained by private suit by those, injured or about to be.’” ■ .
In that case this court reversed the judgment of the circuit court, and remanded the cause with leave .to appellee, the der fendant, to amend his answer so as to invoke equitable relief; and with directions to the court, when so amended, to .transfer tjie cause to the proper chancery court. .....
In DeQueen & Eastern Railroad Company v. P. S. Gilbert,, the petitioner in the case before us filed an answer and crps$ complaint, as before stated, and asked that the cause be transferred to the Howard Chancery Court, and the circuit court granted the motion, and made the transfer, and the chancery court refused to exercise jurisdiction, and ordered that the cause be remanded to the circuit court.
JMo appeal can be taken from the order to transfer to the circuit court. Womack v. Connor, 74 Ark. 352. What is petitioner’s remedy? It has often been held that “where a court declines jurisdiction by mistake of law, erroneously deciding as a matter of law,” and not as a decision of fact, that it has no jurisdiction, and declines to proceed in the exercise of its jurisdiction, the general rule is that a mandamus to proceed will lie from any .higher court having supervisory jurisdiction, unless there is a specific and adequate remedy by appeal or writ- of error. In re Grossmayer, 177 U. S. 48; In re Connaway, 178 U. S. 421; Cahill v. Superior Court, 145 Cal. 42; De la Beckwith v. Superior Court, 146 Cal. 496; 26 Cyclopedia of Law and Procedure, 190, and a long list of cases cited.
In re Grossmayer, 177 U. S. 48, the court said: “The objection to the form of remedy cannot be sustained. A writ of mandamus, indeed, cannot be used to perform the office of an appeal or writ of error, to review the judicial action of an inferior court. A final judgment of the circuit court of the United States for the defendant upon a plea to the jurisdiction cannot therefore be reviewed by writ of mandamus. But if the court, after sufficient service on the defendant, erroneously declines to take jurisdiction of the case or to enter judgment therein, a writ of mandamus lies to compel it to proceed to a determination of the case, except where the authority to issue a writ of mandamus has been taken away by statute.”
In Cahill v. Superior Court, 145 Cal. 44, the court said: “This court has held that-where the jurisdiction of the su^orio:court to try a cause or hear an appeal depends on the evidence of certain facts, and that court has, upon evidence consisting either of affidavits or of the record, made its determination as to the facts, although erroneously, this court cannot in mandamus proceedings go behind this determination, and itself consider from the evidence whether or not the jurisdiction existed.” The court, after giving cases as illustrations of the rule, said:
“The distinction between this class of cases and the case at bar is this: In all these cases the superior court was called upon to consider either the sufficiency of certain facts established by the record, or certain facts determined by that court upon evidence properly addressed to it, to give it jurisdiction to proceed with the particular case then before the court, and with its decision, after such consideration, this court cannot interfere by mandamus. In the case at bar there was no question of fact involved, and the superior court decided that, as a matter of law purely, it could not in any case vacate an order made under the provisions of section 1465 of the Code of Civil Proceedure setting apart a homestead. This was a proposition not dependent on any facts whatever, but wholly upon a consideration of the powers of the court as defined by the Constitution and by statute. * * * The law specially enjoins upon the superior court, and upon the judge thereof, the duty of hearing and determining all matters which are within its jurisdiction and which come properly before it. The motion under consideration did come properly before that court, but the judge decided as a matter of law, and upon the statute and Constitution only, that the court had no power in any case to make orders of the kind there applied for, and upon that ground only refused to proceed to the merits of the application. If the person holding the office could thus decide what were the duties pertaining thereto which the law specifically enjoins him to perform, the writ of mandamus would be practically useless. The decision refusing to act which gives occasion for the writ would also furnish sufficient cause for denying it. As was well said in Temple v. Superior Court, 70 Cal. 211, ‘the court cannot, by holding without reason that it has no jurisdiction of the proceedings, divest itself of jurisdiction and evade the duty of hearing and determining it.’ ”
In the case before us the determination of the jurisdiction of the court did not depend upon the finding of facts. They were stated in the pleading, in the answer and cross-complaint of the defendant. The jurisdiction of the court was purely a question of law. The court, having erroneously decided that in the negative, may be compelled by mandamus to proceed to exercise it.
It is therefore ordered that the clerk of this court issue a writ of mandamus in accordance with prayer of petition. | [
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Per Curiam.
Appellant, Jessie Lee Buchanan, by his attorney, has filed for a rule on the clerk.
His attorney, Davis Loftin, admits that the failure to file the record in time was due to a mistake on his part.
We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5, 1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964. A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
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Tom Glaze, Justice.
Leon Simmons stands convicted of two counts of possession of cocaine with intent to deliver, and as a habitual offender, was sentenced to two life sentences. He raises five points for reversal.
In his first two points, Simmons argues that the trial judge abused his discretion in refusing to continue the scheduled August 13,1992 trial and to recuse from trying Simmons’s case. Simmons was charged on February 11,1992, and counsel, Tracy Bagwell, was appointed to represent him. Simmons’s present counsel, William Howard, Jr., apparently took over Simmons’s representation on June 29, 1992, although no notice of appearance was filed by Howard and no withdrawal motion was filed by Bagwell.
The record reflects Howard’s first appearance on Simmons’s behalf occurred when he filed motions for discovery and continuance on July 24, 1992. A hearing was held on Simmons’s continuance motion on July 27,1992. Howard told the trial judge that he was scheduled to retry a capital felony murder case on August 17th, and he said that there was no way he could be ready to try Simmons’s case on August 13th. The judge responded by denying the requested continuance and stating Simmons had been in jail for six or seven months, his drug case was simple and counsel, Howard, had had forty-five days to prepare for trial, which was long enough.
Ark. R. Civ. P. 27.3 provides the court shall grant a continuance only upon a showing of good cause and that a motion for continuance is addressed to the sound discretion of the trial judge and his or her judgment will not be reversed on appeal in the absence of clear abuse. Loggins v. State, 271 Ark. 616, 609 S.W.2d 76 (1980). Here, the trial judge gave sound reasons for denying a continuance, and Simmons offers no proof or argument that Mr. Howard was unprepared or otherwise hampered when representing Simmons at trial.
Related to his continuance argument, Simmons also contends the trial judge demonstrated prejudice towards him, and for that reason, the judge should have recused. Simmons’s counsel, Howard, asserts that, during the hearing on Simmons’s continuance motion, the trial judge became upset over Howard’s remarks when he mentioned the district’s Drug Task Force and what he characterized as the Task Force’s “recent published problems.” The trial judge stated Howard’s comments were not fair and were “condemning somebody without evidence.” Howard explained he was seeking reports relating to the disappearance or discrepancies of drugs the Task Force had had in its possession because Simmons’s defense was “he did not have drugs and if they found drugs, someone planted them on him.” The judge then responded, “I don’t know anything about that, and that’s fine, and in other words, if you’re entitled to it, you prepare the order and you’ve got it.”
Howard and the prosecutor then exchanged remarks concerning what evidence may or may not be discoverable involving the Drug Task Force, and the trial judge interjected “that you both know the laws of discovery well enough that you can comply with the rules of discovery without hassling about it.” Then, abruptly switching back to his earlier expressed need for a continuance, Howard told the court, “Well, like I said before, Your Honor, I have several cases that have been set on the docket prior to this trial, prior to this case.” The court again responded, “Either Mr. Bagwell is going to represent Mr. Simmons, or you are going to represent him on August the 13th. You are going to be here. If you’re not here, I’ll send after you, Mr. Howard.”
In sum, Simmons argues his attorney interpreted the trial judge’s actions and statements, including his threat to send the sheriff after counsel, as an objective 'demonstration of prejudice. We must disagree. As we have recently said, the decision to disqualify from a case is discretionary with a judge and a judge’s decision in this regard will not be reversed absent an abuse of that discretion. Sheridan v. State, 313 Ark. 23, 852 S.W.2d 772 (1993).
From our reading of the record, clearly the trial court’s objective was to try Simmons’s case on August 13, because Simmons had been incarcerated for about seven months. He viewed the case as uncomplicated and further expressed that the discovery differences defense counsel had with the state could be resolved, if necessary, by the court’s order. At the recusal hearing, the trial judge explained that he would expect any trial counsel to appear when his or her client’s case was called on the docket; if counsel failed to appear, the judge would determine why counsel did not show, and, if necessary, send the sheriff for a contempt hearing. The judge added that he had always treated Howard fairly, and Howard agreed, saying that was why he expected having no problem in obtaining a continuance in Simmons’s case. The record, we believe, reflects nothing that shows the trial judge .could not impartially try Simmons’s case, and absent some objective demonstration of prejudice, we will not reverse the judge’s ruling on disqualification. Matthews v. Rodgers, 279 Ark. 328, 651 S.W.2d 453 (1983).
Simmons’s third and fourth points we consider together. Both points involve hearsay objections to testimony given by state witnesses Lavonne Davis and Particia Matthews.
Lavonne Davis had been arrested on a separate drug offense on January 21,1992, and at that time, he spoke with Officer Ron Poole about Simmons. It was this information from Davis which in main part led to the arrest of Simmons and the search of his car and two residences. Simmons did not challenge Simmons’s arrest or search, and at trial, the crack cocaine rocks found in Sim mons’s residences and car were admitted into evidence without objection. However, the state placed Davis on the stand to testify to what he had previously told Poole on January 21, and Simmons argues such elicited testimony was hearsay and inadmissible. The testimony follows:
State: What did you tell Mr. Poole?
Davis: It — he asked me did Leon [Simmons] have any dope in the car?
State: What did you tell him?
Davis: I told him there was some people come by looking for him and they said he had some, asked me did I have any.
Howard: Objection again to hearsay.
Court: The objection as to hearsay part of it is sustained.
State: Bunny, I don’t want to know what the girls told you.
Davis: Okay.
State: I want to know what you told Mr. Poole, going at it around about way.
Davis: That Leon had some dope in the car.
State: You told Mr. Poole what? Those words?
Davis: Yes, sir.
Howard: Your Honor, I’d like to object to that. Number one, he’s indicated he didn’t even talk to Leon Simmons that day. How does he have any personal knowledge what Mr. Simmons had in his car, unless someone else told him? It’s hearsay objection I’m making.
Court: Overruled. (Emphasis added.)
Simmons’s second hearsay objection goes to testimony elicited from Patricia Matthews, who was living with Simmons at the time of his arrest, and it was her apartment in which some of the cocaine was found. While she was on the stand, the following occurred during direct:
State: What was the nature of your conversation with Mr. Simmons? Why did you confront him?
Matthews: Because I heard that he was selling drugs and I asked him if he was selling drugs.
Howard: Your Honor, I’m going to object again. We’re going to some hearsay. She hadn’t testified yet to seeing him with any drugs. She heard something about some drugs.
Court: The objection to the last question is overruled. (Emphasis added.)
Simmons argues Davis’s and Matthews’s statements were hearsay because they were elicited to prove the matter asserted, namely, that Simmons was selling dope. The state contends that Davis’s testimony showed in part the probable cause basis for the officers having stopped and arrested Simmons and having searched his car and two residences. Concerning Ms. Matthews’s testimony, the state urges that information gained from others that Simmons was selling dope merely showed the reason or basis for confronting Simmons sometime prior to his arrest and the search, and telling him she did not want drugs in her apartment where Simmons resided.
As previously mentioned, Simmons never challenged the officers’ search of his car and apartment, so the evidence gained as a result of the searches was admitted without objection. Probable cause in this case had no relevance and the state’s use of Davis’s remarks to Poole could only be of value to reinforce in the jurors’ minds that Simmons was selling drugs. And while Matthews’s testimony, too, bears some indicia of hearsay problems, we should quickly add that, in view of the overwhelming nature of the evidence against him, Simmons has not demonstrated that, even given error in the admission of such testimony, prejudice resulted. Gage v. State, 295 Ark. 337, 748 S.W.2d 351 (1988).
As pointed out, the state introduced without objection the bags of cocaine found in Simmons’s residences and car. In addition, Lavonne Davis testified that he personally had obtained crack cocaine from Simmons, sold it and returned a portion of the proceeds to Simmons. Davis testified that, during the six-month period prior to his and Simmons’s arrest, he had gotten crack cocaine from Simmons on nine or ten occasions, he sold it and after the sales, he gave money to Simmons who would give Davis a new supply. Such testimony clearly portrayed to the jury Simmons’s intended use of the crack cocaine found in his possession when he was arrested. In view of this overwhelming evidence of guilt, Simmons simply fails to show that prejudice resulted from either Davis’s or Matthews’s testimony.
Simmons’s final point involves a hearsay argument as well. On cross-examination of Officer Poole, defense counsel asked whether the items seized from Simmons’s residences and car had been dusted for prints. Counsel further asked, “If you really wanted to know if this [stuff] was Leon Simmons’s and he had touched it... you’d ask the Crime Lab to dust for fingerprints... wouldn’t you? Poole said, “I’ve got . . . instructions from the Crime Lab on matters such as this, and I’ll be glad to explain it to you if you’d like.” Counsel told Poole no. On redirect, the prosecutor asked Poole to explain what the Crime Lab’s instructions were concerning fingerprint analysis of items such as the ones seized from Simmons. Over Simmons’s hearsay objection, Poole was allowed to say, “They told us that items like this are not likely to produce any fingerprints . . . and they asked us not to submit items like that.”
The simple answer to Simmons’s argument here is that he opened the door for Poole to explain why he had not sought fingerprint analysis from the Crime Lab when defense counsel, himself, asked Poole would he not have asked the Crime Lab to dust for fingerprints if Poole really wanted to show Simmons possessed or touched the contraband found in his car and residences. See Dyas v. State, 260 Ark. 303, 539 S.W.2d 251 (1976). The state only had Poole explain that the reason he did not seek fingerprint analysis in this case was because the Crime Lab had requested officers not to do so on certain items like those found in Simmons’s possession.
In conclusion, because Simmons has been sentenced to life imprisonment, the record has been reviewed pursuant to Ark. Sup. Ct. R. 4-3(h) and other prejudicial errors have not been found. Therefore, we affirm.
Simmons objected to this testimony below as being irrelevant, but the trial judge allowed the testimony under Ark. R. Evid. 404(b) to show Simmons’s intent when having the crack cocaine in his possession at the time of his arrest. Simmons does not challenge the trial judge’s ruling in this appeal. | [
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Per Curiam.
The Department of Human Services filed this paternity suit on behalf of the mother of an infant. The complaint asked that the appellee be decreed to be the father of the child and for past and future child support. The chancellor heard the case and, on October 19,1992, executed a final order deciding the case on its merits. In a separate order, the chancellor decreed: “The Order made and entered by this court on the 19th day of October, 1992, is hereby sealed and filed in-camera and shall not be opened except by order of court of competent jurisdiction.” This separate order was signed and entered on October 19, 1992. Neither the final order, nor the envelope in which it was sealed, are marked as filed by either the judge or the clerk, and consequently neither one is marked with a date of filing. The chancery court clerk made a docket entry showing that the final order was “made and entered” on October 19, 1992. The Department of Human Services now seeks to appeal from the sealed final order.
The Department of Human Services lodged the appeal in the court of appeals. The court of appeals questioned the appellate jurisdiction of such a sealed order, and certified the case to this court for an interpretation of the applicable Rule of Appellate Procedure, Rule of Civil Procedure, and Administrative Order. We took the case under submission, but, after two conferences, have decided to request briefing of the jurisdictional question. The briefs submitted by the parties do not touch on the issue of appellate jurisdiction.
We desire the parties to brief the following issues:
1. Does a rule provide for the sealing of a final order? If not, does any law authorize the sealing of a final order?
2. If there is no rule or law authorizing the sealing of a final order, should an appeal be allowed from such an order?
3. Whether there is authority for the sealing of a final order, and for the appeal of such an order, should the State of Arkansas be allowed to participate in such a process? If we approve such a procedure, how would the Child Support Enforcement Unit or other similar agencies obtain information on compliance with the order? If we approve such a procedure involving the State, how could it be limited?
4. If there is some authority for the sealing of a final order, and for the appeal of such an order, was this final order entered in accordance with ARCP Rule 58 and Administrative Order Number 2? Further, what is the effect of the recitation in the sealing order that the final order was “entered”?
5. If there is some authority for the sealing of a final order, and for the appeal of such an order, was the final order entered in accordance with Ark. R. App. P. 4(e)?
6. If we approve the procedure used in this case, how can one know with certainty when the time for notice of appeal starts to run?
The clerk will set the briefing schedule for the parties, and after the briefs filed, we will again take the case under submission.
Briefing on the issue of appellate jurisdiction ordered. | [
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David Newbern, Justice.
The law firm of Crockett «fe Brown, P.A., filed suit in Pulaski Chancery Court to obtain an attorney’s fee for representing Richard Courson. The Chancellor awarded a summary judgment against Crockett & Brown as the suit was barred by res judicata. We affirm the Chancellor’s decision as some aspects of the suit are barred by res judicata and others by collateral estoppel.
We first addressed this matter in Crockett & Brown, P.A. v. Courson, 312 Ark. 363, 849 S.W.2d 938 (1993). The facts from which this dispute arose are set forth in that opinion. Briefly, Crockett & Brown was retained to represent Richard Courson who was severely injured in a turkey hunting accident by Richard Averett. Courson agreed to pay Crockett & Brown a $7,500 retainer and a maximum of $15,000 in hourly fees, plus 10% of any settlement he received in excess of $30,000.
Crockett & Brown filed Courson’s suit against Averett in Ashley Circuit Court and quickly negotiated a settlement offer of $100,000. Mr. Courson’s rejection of that offer led to a disagreement with Crockett & Brown. Mr. Courson dismissed Crockett <fe Brown and retained William R. Wilson, Jr., Gary Corum, and John Byrd to represent him. These attorneys began negotiations which ultimately led to a $300,000 settlement for Mr. Courson.
During these negotiations, Crockett & Brown moved the Circuit Court to attach an attorney’s lien, pursuant to Ark. Code Ann. § 16-22-304(b) (Supp. 1991), to any settlement Mr. Courson might receive. The Court held that Crockett <fc Brown had been discharged for cause; however, pursuant to Ark. Code Ann. § 16-22-303 (1987), the firm was entitled to a reasonable attorney’s fee and costs totalling $17,541.27, less the $7,500 retainer.
We upheld that result in Crockett & Brown, P.A. v. Courson, supra, although not on the basis of the Statute. In a supplemental opinion we stated that, while Crockett & Brown was entitled to a reasonable fee, the statutory attorney’s lien provided in Ark. Code Ann. §§ 16-22-301 to 304 (Supp. 1991) was not applicable as Crockett & Brown had been dismissed by its client for cause. The statutory lien is available to attorneys who have been dismissed only if they have been fired without cause. Crockett & Brown, P.A. v. Courson, 312 Ark. 377A (1993).
While that appeal was pending, Crockett & Brown brought a new lawsuit in Pulaski County Chancery Court. This suit named as defendants Richard Courson, his new attorneys, Randall Averett, and Mr. Averett’s insurer, Allstate Insurance Company. This suit sought an attorney’s lien pursuant to § § 16-22-301 to 16-22-304, for a $100,000 attorney’s fee incurred while Crockett & Brown represented Mr. Courson.
The defendants moved for summary judgment stating that Crockett & Brown’s claim was barred by res judicata. The motion was granted.
Res judicata, or claim preclusion, bars subsequent action on the same claim where a final judgment has been rendered by a court of competent jurisdiction. Toran v. Provident Life & Accident Ins. Co., 297 Ark: 415, 764 S.W.2d 40 (1989) (citing Restatement of Judgments, 2d, § 19 (1982)). Four elements must be met for res judicata to apply: (1) the first suit must have resulted in a final judgment on the merits, (2) the first suit must be based on proper jurisdiction, (3) both suits must involve the same cause of action, and (4) both suits must involve the same parties or their privies. Robinson v. Buie, 307 Ark. 112, 817 S.W.2d 431 (1991).
Collateral estoppel, or issue preclusion, bars relitigation of issues, law or fact, actually litigated in the first suit. See Toran v. Provident Life & Accident Ins. Co., supra. For collateral estoppel to apply, the following elements must be met: (1) the issue sought to be precluded must be the same as that involved in the prior litigation, (2) that issue must have been actually litigated, (3) the issue must have been determined by a valid and final judgment, and (4) the determination must have been essential to the judgment. Fisher v. Jones, 311 Ark. 450, 844 S.W.2d 954 (1993).
The basis of Crockett & Brown’s appeal is that none of the elements of res judicata have been met. Analyzing each of these elements, we find the Chancellor was correct in ruling that Crockett & Brown is barred from bringing its current lawsuit. However, that conclusion requires the application of both the doctrine of res judicata and that, of collateral estoppel.
1) Final judgment on the merits
Crockett & Brown contends the order of the Circuit Court, which established Crockett & Brown’s attorney’s lien, is not a final order. Crockett & Brown claims that, to be a final order, a court must enter a disbursement order. Crockett & Brown also argues the decision was not final when the Pulaski Chancery suit was filed because the Circuit Court order was on appeal.
While the lien established in the Ashley County Circuit Court and affirmed here has not been foreclosed, the order is final in that it establishes and defines Crockett & Brown’s rights in any settlement Mr. Courson may receive. Finality for purposes of appeal is closely related to finality for purposes of res judicata. See, IB James W. Moore et al., Moore’s Federal Practice (2d ed. 1985) ¶ 0.416[3]. The basis of Crockett & Brown’s first appeal was the Circuit Court order. That order was final for purposes of appeal. Ark. R. App. P. 2(a)(2) & (8).
The fact that entitlement to the fee had been established but not foreclosed upon is of no avail to Crockett & Brown. To assume further proceedings are needed to collect the fee is speculative, and of no merit in this appeal.
If we were to accept Crockett & Brown’s argument that a judgment on appeal is not final, a plaintiff could clog the courts and harass an adversary with suits on a claim already decided. That is the precise result res judicata is designed to prevent.
2) Proper jurisdiction
Crockett & Brown next contends the Ashley Circuit Court did not have jurisdiction of all of the defendants named in Pulaski Chancery suit, and the Circuit Court order was, for res judicata purposes, lacking the jurisdictional element.
For res judicata to apply, a claim must have been litigated on its merits. This presupposes that the court in which a claim is litigated has jurisdiction of those proceedings. This is identical to the requirement of a “valid judgment” for the doctrine of collateral estoppel.
Richard Courson sued Randall Averett in Ashley County Circuit Court. The Ashley Circuit Court’s jurisdiction of the subject matter of that lawsuit and the parties to it is not questioned. No doubt that Court had the authority to decide Crockett & Brown’s motion for fees in that lawsuit. There was thus no jurisdictional defect which would preclude res judicata from barring Crockett & Brown’s attorney’s fee claim with respect to the parties to the Ashley Circuit Court judgment. That conclusion does not answer the argument that the earlier litigation does not bar the claim here against Messrs. Wilson, Corum, and Byrd as well as Allstate Insurance Company. That argument will be addressed below when we discuss the doctrine of collateral estoppel.
3) Same cause of action
Crockett & Brown alleges its motion in Ashley Circuit Court and its lawsuit in Pulaski Chancery Court are not based on the same cause of action. Crockett & Brown contends that at the time it filed its motion no settlement had been negotiated for Richard Courson, thus the firm had no cause of action against Courson’s new attorneys. This argument confuses the requirement of same cause of action with the requirement that both lawsuits involve the same parties or their privies.
Crockett & Brown’s motion requested an attorney’s fee for representing Richard Courson pursuant to Ark. Code Ann. § 16-22-304(b). The Court awarded a reasonable fee pursuant to Ark. Code Ann. § 16-22-303. We upheld the award on appeal but stated § § 16-22-301 to 16-22-304 were not available to Crockett & Brown because of the dismissal for cause. The lawsuit Crockett & Brown filed in Pulaski Chancery Court sought a fee pursuant to those same statutes. These proceedings involve the identical cause of action earlier decided.
4) Same parties or their privies
Crockett & Brown argues the parties before the Ashley Circuit Court are not the same parties named in the Pulaski Chancery Court lawsuit. Crockett & Brown’s original motion was brought in a lawsuit between Richard Courson and Randall Averett. Those parties are named in the Pulaski Chancery Court case. As stated above, res judicata bars Crockett & Brown’s action in Pulaski County against those parties. Additional defendants are named in the Pulaski Chancery Court suit, Richard Courson’s new attorneys and Randall Averett’s insurance company.
In response to this argument it is contended that these parties are privies to the original parties for purposes of res judicata. We need not address this argument, as the doctrine of collateral estoppel bars the issues presented in Crockett & Brown’s lawsuit against the additional parties.
Crockett & Brown’s lawsuit seeks attorneys’ fees pursuant to §§ 16-22-301 to 16-22-304, the same statutes addressed in the first suit and subsequent appeal. That appeal was based on a motion litigated in Ashley Circuit Court. The Ashley Circuit Court entered an order granting Crockett & Brown a reasonable fee pursuant to § 16-22-303. On appeal we held the statutes did not establish a lien in a case in which the attorneys asserting it had been discharged for cause.
The holding that Crockett & Brown had been discharged for cause and thus was entitled only to a “reasonable fee” rather than a contract fee as provided in the statutes was essential to our ruling in that appeal. Crockett & Brown is thus precluded from relitigating the issue of its fee as the doctrine of collateral estoppel does not require that the same parties be involved.
5) Mootness, abstracting, and sanctions
In conclusion, we discuss three points raised by the Appellees. They contend the earlier case renders this appeal moot. In view of our conclusions stated above we need not address mootness.
It is contended that Crockett & Brown’s abstract does not comply with Ark. Sup. Ct. R. 4-2(b)(2). The abstract is cumber some, but we do not find it to be, in the terms of the Rule, “flagrantly deficient.”
Finally, sanctions are sought against Crockett & Brown for bringing a frivolous appeal not grounded in fact or based on a good faith argument in the law. The only authority cited for the argument is Ark. R. Civ. P. 11 which governs conduct of parties and attorneys in trial courts, see Ark. R. Civ. P. 1, and Ark. Model Rules of Professional Conduct 3.1. Although Rule 3.1 may form the basis of a disciplinary action against an attorney, Dodrill v. Executive Director, 308 Ark. 301, 824 S.W.2d 383 (1992), no case is cited in which we or another court have held a lawyer civilly liable for violation of Rule 3.1, and we decline to do so in this case.
Aifirmed. | [
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Donald L. Corbin, Justice.
The Pulaski County Quorum Court (Quorum Court) enacted two ordinances, Ordinance No. 93-OR-07 and Ordinance No. 93-OR-08. Ordinance No. 93-OR-07 transferred the responsibility for the operation and maintenance of the Pulaski County Jail from the sheriff, Carroll Gravett, to a civilian administrator who would operate the jail under the authority of the county judge. Ordinance No. 93-OR-08 transferred the budget for the detention department from the sheriff to the county judge. Sheriff Gravett and the Arkansas Sheriffs’ Association filed suit in Pulaski County Chancery Court alleging that, among other things, the enacted ordinances violated the Arkansas Constitution. The trial judge determined the enacted ordinances were constitutional. Appellants, Sheriff Gravett and the Arkansas Sheriffs’ Association, appeal the trial court’s determination.
Appellants contend both ordinances cause a “revision” and “separation” of the office of sheriff and were enacted without voter approval at a general election in violation of Ark. Const. amend. 55, § 2(b). Ark. Const. amend. 55, § 2(b) provides:
The Quorum Court may create, consolidate, separate, revise, or abandon any elective county office or offices except during the term thereof; provided, however, that a majority of those voting on the question at a general election have approved said action.
Appellees contend they have authority to transfer the operation of the county jail from the sheriff to the county judge by ordinance and without a vote at a general election pursuant to Ark. Code Ann. § 14-14-701 (1987) and Ark. Code Ann. § 14-14-702 (1987). Sections 14-14-701 and 14-14-702 were enacted subsequent to the adoption of Amendment 55 in order to implement the powers granted to the counties by Amendment 55.
We first address Ordinance No. 93-OR-07 which provides:
BE IT ENACTED BY THE QUORUM COURT OF PULASKI COUNTY, STATE OF ARKANSAS; AN ORDINANCE TO BE ENTITLED:
AN ORDINANCE TO TRANSFER THE AUTHORITY OYER, AND OPERATION OF, THE PULASKI COUNTY DETENTION FACILITY FROM THE PULASKI COUNTY SHERIFF TO THE PULASKI COUNTY JUDGE, TO CREATE THE PULASKI COUNTY DETENTION DEPARTMENT, TO DECLARE AN EMERGENCY, AND FOR OTHER PURPOSES.
WHEREAS, Amendment 55 to the Arkansas Constitution, and Act 742 of 1977 (Ark. Code Ann. §§ 14-14-401, et seq.) authorize the Quorum Court to oversee the organization of County government and to provide necessary County services to the citizens of the County; and,
WHEREAS, Ark. Code Ann. § § 14-14-701 and 702 allow a Quorum Court, by ordinance, to transfer statutory duties from one County department to another so long as an elective office is not created, abolished or consolidated; and,
WHEREAS, the Sheriff of Pulaski County has authority over the Pulaski County Detention Facility pursu ant to legislative authority found in Ark. Code Ann. § 12-41-502; and,
WHEREAS, the Quorum Court has determined that detention services on a regional basis can be more efficiently and economically delivered through a civilian Detention Department managed by a professional administrator under the authority of the County Judge.
NOW, THEREFORE, BE IT ORDAINED BY THE QUORUM COURT OF PULASKI COUNTY, ARKANSAS:
ARTICLE ONE. The authority over, and operation of, the Pulaski County Detention Facility is hereby transferred from the Pulaski County Sheriff to the Pulaski County Judge.
ARTICLE TWO. There is hereby created a civilian Department of Detention for Pulaski County under the authority of the Pulaski County Judge.
ARTICLE THREE. SEVERABILITY. The provisions of this Ordinance are severable. If any provision of this Ordinance shall be held to be invalid, such holding or invalidity shall not affect the validity of any other provision of this Ordinance.
ARTICLE FOUR. REPEALER. All laws and parts of laws in conflict with this Ordinance are hereby repealed.
ARTICLE FIVE. EMERGENCY. It is hereby found and determined that the Pulaski County Detention Facility should be transferred to the authority of the County Judge in order to facilitate the transition to an 800 bed regional direct supervision unit. In order to hire and train adequate personnel by the projected opening date, this process must begin immediately. Therefore, an emergency is declared and in order to insure the health, safety and welfare of the citizens of Pulaski County, this Ordinance shall be in full force and effect from and after the date of passage and approval by the County Judge.
Section 14-14-701 provides:
(a) It is determined by the General Assembly that:
(1) The present service organization of county government does not meet the needs of every county in this state; and
(2) County governments can be made more responsive to the service needs of the people through the reorganization of county government into departments, boards, and subordinate service districts which are consistent in their organization and assignment of duties, responsibilities, and authorities.
(b) It is therefore the purpose of this subchapter to:
(1) Establish the basic procedures for the establishment of service organizations in county government; and
(2) Establish the authorities and limitations of these service organizations.
Section 14-14-702 provides in pertinent part:
The county quorum court of each county may prescribe, by ordinance, the department, board structure, and organization of their respective county governments and may prescribe the functions of all offices, departments, and boards. However, no ordinance shall be enacted by a quorum court which:
(2) Alters the organization of elected county officials established by the Arkansas Constitution, except through the provisions of Arkansas Constitution, Amendment 55, § 2, Part (b). However, any function or duty assigned by statute may be reassigned by ordinance; or
(3) Limits any provision of state law directing or requiring a county government or any officer or employee of a county government to carry out any function or provide any service. However, nothing in this section shall be construed to prevent the reassignment of functions or services assigned by statute where Arkansas reassignment does not alter the obligation of the county to continue providing such function or service.
(emphasis added).
Notwithstanding the power of Quorum Courts under Ark. Const. amend. 55, § 2(b) and section 14-14-702(2), we have held that no county is authorized to pass an ordinance reorganizing its government in a manner contrary to the general law of the state. Clark County v. Miller, 291 Ark. 203, 723 S.W.2d 820 (1987) (decision relying on Ark. Code Ann. § 14-14-608(b)(10) (1987)); see also Cox v. Commissioners of Maynard Fire Improvement Dist. No. 1, 287 Ark. 173, 697 S.W.2d 104 (1985). The general law of the state provides “[t]he sheriff of each county in this state shall have the custody, rule, and charge of the jail within his county and all prisoners committed in his county, and he may appoint a jailer for whose conduct he shall be responsible.” Ark. Code Ann. § 12-41-502 (1987). Additionally, under Ark. Code Ann. § 14-14-703(2)(E) (1987) the office of sheriff is required to be maintained.
However, section 14-14-608 provides in pertinent part:
A county government serving as a political subdivision of the state for the more convenient administration of justice is compelled by law to provide certain services relating to judicial administration, law enforcement, and other matters. No county ordinance adopted by the electors for the establishment of alternative county organizations shall serve to repeal or diminish any general law of the state directing or requiring a county government or any officer or employee of a county government to carry out any function or provide any service. However, nothing in this section shall be construed to limit or prevent counties from adopting alternative county organizations nor the reassignment of statutorily delegatedfunctions or services where such alternative organization or reassignment shall not alter the obligation of the county to continue providing the services or functions which are or may be established by state law.
(emphasis added). Additionally, Ark. Code Ann. § 12-50-101 et. seq. (Supp. 1991) specifically provide that counties can establish private prison facilities.
Thus, while the general law of the state requires the office of sheriff to be maintained and includes as a duty of the office of sheriff the running of the county jail, section 14-14-608 allows a county to reassign statutorily imposed duties so long as the reassignment does not “alter the obligation of the county to continue providing the services.” The chancellor determined that the running of the county jail was a “function or duty” of the sheriff which could be reassigned by ordinance without approval by a majority of those voting on the question at a general election pursuant to Ark. Code Ann. § 14-14-702(2). While we agree that the running of the county jail is a function of the office of sheriff, we disagree that this function can be reassigned by ordinance without a vote by the electorate at a general election.
It is a well established legal principle that constitutional provisions, including amendments, take precedence over any law passed by the legislature. In this instance, Ark. Const. amend. 55, § 2(b) provides the Quorum Court can “create, consolidate, separate, revise, or abandon any elective county office or offices except during the term thereof’ but it requires a “majority of those voting on the question at a general election” to approve the action. Ark. Const. amend. 55, § 2(b). The terms create, consolidate, separate, revise and abandon are not defined in the constitution. Where terms in the constitution are not specifically defined, we give them their commonly accepted meaning. Brown v. City of Stuttgart, 312 Ark. 97, 847 S.W.2d 710 (1993). The word revise generally means “[t]o look or read carefully over, with a view to improving or correcting.” Oxford English Dictionary 610(1971). Separate means “to put apart, set asunder (two or more persons or things, or on from another); to disunite, disconnect, make a division between.” (Emphasis in the original.) Oxford English Dictionary 474 (1971).
As the chancellor recognized, the function of running the county jail constitutes a substantial responsibility of the office of sheriff. Notwithstanding the provisions of sections 14-14-702 and 12-50-101 et. seq., which appear to give the Quorum Court authority to enact ordinances such as the one at issue, removal of this function constitutes a revision and separation of the office of sheriff under Ark. Const. amend. 55, § 2(b). As such, the removal of the running of the county jail from the office of sheriff can only be accomplished by a majority vote at a general election and then only at the conclusion of the term of office. Ark. Const. amend. 55, § 2(b). Therefore, Ordinance No. 93-OR-07 is declared unconstitutional because it was not passed in accordance with the requirements of Ark. Const. amend. 55, § 2(b).
We next address Ordinance No. 93-OR-08 which provides:
BE IT ENACTED BY THE QUORUM COURT OF PULASKI COUNTY, STATE OF ARKANSAS; AN ORDINANCE TO BE ENTITLED:
AN ORDINANCE AMENDING ORDINANCE NO. 92-OR-123, THE 1993 BUDGET OF PULASKI COUNTY, ARKANSAS, TO TRANSFER DEPARTMENTS 2400 AND 2410 TO THE COUNTY JUDGE.
ARTICLE ONE. Article 28 of Ordinance No. 93-OR-123, as amended, is hereby amended to provide:
DEPARTMENT 2400
DEPARTMENT: COUNTY JUDGE - DEPT. OF DETENTION
DEPARTMENT 2410
DEPARTMENT: COUNTY JUDGE - DETENTION TRANSITION
ARTICLE TWO. SEVERABILITY. The provisions of this Ordinance are severable. If any provision of this Ordinance shall be held to be invalid, such holding or invalidity shall not affect the validity of any other provision of this Ordinance.
ARTICLE THREE. REPEALER. All laws and parts of laws in conflict with this Ordinance are hereby repealed.
Ordinance No. 93-OR-08 was passed to fund Ordinance No. 93-OR-07. It transfers the funding for the running of the county jail from the sheriff to the county judge. Since a legislative body cannot do indirectly that which the constitution prohibits it from doing directly, Ordinance No. 93-OR-08 must fail. Cragar v. Thompson, 212 Ark. 178, 205 S.W.2d 180 (1947).
The case is reversed.
Hays, J., dissents.
Holt, C.J., not participating. | [
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Per Curiam.
For his motion for reconsideration of this court’s denial of his July 5, 1993 request for writ of certiorari, appellant tenders the affidavit of Betty Voltz, court reporter, which states that she has been unable to prepare the records in this case, but given an additional thirty days, she will do so. Appellant had obtained a court order extending the time to file the transcript in this cause until June 17, 1993, which date was the maximum length of time to lodge such transcript with this court. Prior to June 17, 1993, appellant timely filed his motion requesting the court reporter to file the record in this matter, but having stated no reason for the delay, we denied his request.
The court, having now been given the reason for the transcript having not been timely filed, grants appellant’s petition for writ of certiorari and directs Ms. Voltz to complete and file the transcript forthwith.
The court forwards a copy of this per curiam to the Board of Certified Reporter Examiners for any action it may deem necessary under its rules.
Corbin, J., not participating. | [
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Per Curiam.
Petitioner Kenneth W. Glover moves this court for a writ of mandamus, a stay of the chancellor’s order entered June 17, 1993, pending appeal, and an emergency accelerated hearing. We deny most of the relief requested but temporarily stay that part of the chancellor’s order which would terminate the supervised visitation of the two children pending the appeal of this matter.
Petitioner Glover contends that his former wife, Paula Langford, sexually abused the couple’s two minor daughters during visitation. He sought termination of those visitation rights in Langford. The chancellor’s order following trial determined that the proof of sexual abuse was insufficient to terminate visitation. In that June 17, 1993 order, he continued visitation rights in Langford predicated on supervision by Langford’s mother. Supervised visitation, according to the order, would terminate December 31, 1993.
Petitioner Glover appealed the chancellor’s order to the Arkansas Court of Appeals by notice of appeal filed on August 6, 1993. He also allegedly has refused to permit visitation with Langford, which led to a show cause hearing for contempt set for August 13,1993. Glover’s petition for mandamus was anattempt to prevent the contempt hearing from transpiring and to prohibit the chancellor from acting further in this case. In that same petition, Glover argued that a stay of the chancellor’s order was necessary because supervised visitation could well expire before an appeal was finalized, thereby subjecting the daughters to potential risk.
This court has jurisdiction of this petition because relief in the form of mandamus was requested. Ark. Const. art 7, § 4; Ark. Sup. Ct. R. (a)6. We see no reason not to stay the expiration of supervised visitation pending appeal. Such a stay presents no impediment to the appeal. Nor do we anticipate any interference with the rights of the parties or with the chancellor’s order resulting from such a stay.
We do note that there is an additional order by the chancellor acting in his capacity as juvenile judge which was entered June 15, 1993, and which finds probable cause that the daughters are dependent/neglected. The order mandates supervision by the Arkansas Department of Human Services during the girls’ visits with Langford and was apparently precipitated by a more recent allegation of sexual abuse made against the mother. The status and duration of this supervision by DHS is not revealed in the record before us, and we are unable to consider that order.
Supervised visits by Mrs. Hobby, the girls’ maternal grandmother, should continue under the chancellor’s June 17, 1993 order pending the appeal of this matter to the Arkansas Court of Appeals. Expiration of these supervised visits under the chancellor’s order is stayed pending appeal. | [
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Jack Holt, Jr., Chief Justice.
Sherman Morgan, a resident of Washington County, filed suit against Steven Neuse seeking to prevent Mr. Neuse, a tenured political science professor at the University of Arkansas, from serving as a member of the Washington County Board of Election Commissioners, claiming Morgan’s appointment was in violation of our constitution, Article 3, Section 10:
No person shall be qualified to serve as an election officer who shall hold at the time of the election any office, appointment or employment in or under the government of the United States, or of this State, or in any city or county, or any municipal board, commission or trust in any city, save only the justices of the peace and aldermen, notaries public and persons in the militia service of the State. Nor shall any election officer be eligible to any civil office to be filled at an election at which he shall serve - save only to such subordinate municipal or local officers, below the grade of city or county officers, as shall be designated by general law.
Neuse was appointed to the Washington County Board of Election Commissioners as the “third member” pursuant to Ark. Code Ann. § 7-4-102(b) (Repl. 1991):
(b)(1) The third member for each of the county boards of election commissioners shall be appointed by the State Board of Election Commissioners from a list of five (5) names submitted to the State Board of Election Commissioners by the county committee of the majority party.
(2) (A) The nominees shall be certified to the State Board of Election Commissioners by the chairman of the county committee of the majority party.
(B) The third members for each of the county boards of election commissioners shall be elected by a majority vote of the State Board of Election Commissioners from the list of five (5) nominees submitted.
(C) The list of five (5) nominees shall be certified and submitted to the State Board of Election Commissioners by the majority party county committee chairman subsequent to the primary election but at least fifty (50) calendar days before any general election for state, district, or county office.
(D) The third member of each county board of election commissioners shall be elected as aforesaid by the State Board of Election Commissioners at least forty (40) calendar days before any general election for state, district, or county office.
The question of Mr. Neuse’s eligibility to serve as a member of the Washington County Board of Election Commissioners was first raised in a related case, Edwards v. Neuse, 312 Ark. 302, 849 S.W.2d 479 (1993). In that case, another plaintiff/appellant, Dan C. Edwards, brought suit against Steven Neuse, Dale Evans and John Burrow, as former or current members of the Washington County Board of Election Commissioners; Marlene Ray, as a former member of that commission; and Job Serebrov, as Ms. Ray’s replacement on the commission. Mr. Edwards sought a writ of mandamus to prevent Neuse from serving on the election commission. The trial court denied Mr. Edwards’ petition, and we dismissed his appeal on the basis that Edwards failed to comply with our former Ark. Sup. Ct. R. 9(d) (now Ark. Sup. Ct. R. 4-2 (a)(6)), by not properly abstracting the record below.
In the case now before us, Mr. Morgan filed a complaint for declaratory judgment and injunction against Mr. Neuse, individually, seeking to disqualify Mr. Neuse from serving as the “third member” of the Washington County Board of Election Commissioners pursuant to Ark. Code Ann. § 7-4-102(b)(1) (Repl. 1991). Mr. Morgan asked the chancellor to make specific rulings as to:
. . . First, That the Court declare the Defendant, Steven Neuse, to be disqualified from holding the office of Election Commissioner of the State of Arkansas “at the time of the election,” furthermore enjoining the Defendant from holding said office during “the time of the election” so long as he shall continue to be employed by the State of Arkansas; Second, That, the Court declare the act of “voting” by the Plaintiff, Steven Neuse, upon any issue coming before the Board of Election Commissioners of Washington County, to be an act which takes place “at the time of the election”; Third, That the Court grant the Plaintiff, Sherman A. Morgan, his costs and whatever other appropriate relief the Court feels is justified.
In denying Mr. Morgan’s request for declaratory judgment and injunctive relief, the trial court made only one finding, that Ark. Code Ann. § 7-4-101-113 (Repl. 1991) should be favored with the presumption of constitutionality and Mr. Morgan had failed to provide the court with a reason which would rebut that presumption. The court made no ruling whatsoever on the other issues raised by Mr. Morgan, particularly whether Mr, Neuse was disqualified as election commissioner as long as he was a state employee and whether Mr. Neuse’s “voting” was an act taking place “at the time of the election” as required by Article 3, Section 10 of our state constitution.
We have said on many occasions, the burden to obtain a ruling on a particular theory of recovery is on the party who advances that theory below. Guaranty Nat’l Ins. v. Denver Roller, Inc., 313 Ark. 128, 854 S.W.2d 312 (1993); City of Springdale v. Town of Bethel Heights, 311 Ark. 497, 845 S.W.2d 1 (1992); National Lbr. Co. v. Advance Dev. Corp., 293 Ark. 1, 732 S.W.2d 840 (1987). Likewise, it is well established that matters left unresolved at trial are waived and may not be relied upon on appeal. Guaranty Nat’l, supra; Carpetland of N.W. Ark., Inc. v. Howard, 304 Ark. 420, 803 S.W.2d. 412 (1991). Simply put, the burden was on Mr. Morgan to obtain the rulings he desired, and his failure to do so operates as a waiver.
In addition to failing to obtain a ruling on Mr. Neuse’s eligibility and related issues, we also note that Mr. Morgan failed to bring a complete cause of action and to join the proper parties such as the State Board of Election Commissioners and the Washington County Board of Election Commissioners. See Ark. R. Civ. P. 19. In State v. Craighead County Bd. of Election Comm’rs, 300 Ark. 405, 779 S.W.2d 169 (1989) we specifically stated that the proper legal proceeding to challenge eligibility of a candidate and seek his removal is mandamus coupled with a declaratory judgment action. The same rings true to disqualify a person who is serving as an election commissioner under Ark. Code Ann. § 7-4-102 (Repl. 1991).
We consider matters involving our election processes to be of grave public interest and that they should be brought to a full and final resolve as expeditiously as possible. However, we cannot do so until we have both the appropriate parties and fully developed issues before us.
For these reasons, we must affirm the trial court. | [
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Mehaffy, J.
The appellant, who- was plaintiff below, brought suit against J. D. Watson and sons, appellees, defendants below, to recover the value of coal which plaintiff claimed to have owned and alleged to have been willfully and wrongfully taken by the defendants, and also for damages for wrongfully transporting coal through entries and haulage ways belonging to plaintiff. .
Emil Baerlocher owned approximately 148 acres of land, and, on September 16, 1921, he leased all the coal under 124 acres of said land to the plaintiff. The lease was for a period of 20 years, and provided for a royalty of 21 cents per ton, and minimum royalty of $1,000 per year. This lease, however, did not cover the land in controversy, which was 3.8 acres. Besides the 124 acres included in the lease, however, Baerlocher owned 23.8 acres, and it was 3.8 acres out of this latter tract that it is claimed plaintiff owned and under which it is claimed that defendants took the coal.
. On October 20, 1921, the plaintiff secured another lease from Baerlocher, which, it is alleged, covered the entire 148 acres, and the royalty per ton was the same, but the minimum royalty increased to $1,200 per year. It is alleged that this lease covered all of the coal owned by Baerlocher.
Plaintiff alleged that it was later discovered that there was an error in this lease- of October 20, 1921, in that it did not properly describe the 3.8 acres. Plaintiff claims, that this discrepancy was not discovered until early in the year of 1925.
On March 30, 1925, a new lease was executed which, it is alleged, was for the sole purpose of correcting the description of the 3.8-acre tract. The plaintiff makes no claim that defendants took any coal from any part of the Baerlocher lands, except from, the 3.8-acre tract. The plaintiff alleged and contended that the defendants had no claim on said land at all, and that they had tried and . flailed to secure a lease from Baerlocher, and that they had also tried to secure lease from plaintiff.
Plaintiff alleges'that the coal taken by defendants was a willful and intentional trespass, and that the measure of damages is the value of the ore as found at the month of the mine. That is, the value of the coal after it had been mined and brought to the surface.
The defendants admit that they are partners and engaged in mining coal, and have been for a number of years, and deny all of the material allegations of plaintiff's complaint. They allege that, in the year 1919, they leased lands from Hunter and from Jones, and were mining coal on these lands, and that in 1924 the defendants extended an entry across the southeast corner of the Baerlocher land, and that these entries on the Baerlocher land were made with Baerlocher's knowledge and consent, and in accordance with a verbal agreement made in 1919 and 1920, and they had settled and paid Baerlocher for the coal in accordance with said agreement. They alleged that this agreement between defendants and Baerlocher was known to the plaintiff at the time they secured a lease, and that there was no proper description of the 3.8 acres, and that they had a right, under the verbal agreement with Baerlocher, to take the coal which they did take, and that all the coal they took from the 3.8 acres was taken under the agreement and with the knowledge both of Baerlocher and of the plaintiff.
Plaintiff introduced in evidence plats showing the location of the lands leased and of the 3.8 acres, the land involved in this controversy.
The appellant states: “The issues in this case are brought to rather narrow confines under the pleadings and evidence.”
The only questions involved are, first, did the defendants wrongfully take coal that belonged to the plaintiff1? If they did not, it would be unnecessary to discuss or determine any other question. If, however, they did take coal that belonged to the plaintiff which they did not have a right to take, it then becomes important to 'determine whether they took it in good fáith or whether they were willful trespassers, because, even if the coal belonged to the plaintiff and defendants took it as a result of an honest mistake, the defendants would have to pay only the value of the ore as it was originally in place in the ground; whereas, if they took out the coal wrongfully and intentionally, that is, if they were willful trespassers, they would have to pay the value as found at the mouth of the mine.
Appellant states: “The sole issues are, first, the amount of coal removed, and, second, the measure of damages. ”
We agree with this statement of the appellant. And since these are the only issues involved, it is necessary to determine whether the coal taken by defendants was taken under an honest belief that they had a right to take it, or Avhether they Awllfully and intentionally took the ore, because, if they Avillfully and intentionally took the ore, the measure of damages would be the value of the coal as found at .the mouth of the mine.
Several witnesses Avere asked by appellant if they intended to take this coal. That is, if it was intentional. They of course said it was. But evidently Avhat they meant Avas not intentional in the sense that it was wrongful, but that it Avas not accidental; that it was voluntary.
The word “intentional,” Avhen used in connection AAdth the doing of a Avrongful act, signifies not only that the party intended to do the particular act, but to do it knowing at the time that it was wrongful. Ickenroth v. St. Louis Transit Co., 102 Mo. App. 597, 77 S. W. 162.
It is perfectly plain that the witnesses did not mean that they took it knowing at the time that it was wrongful, but what they did mean Avas that it was intentional in. the sense that it was not accidental.
This court has said, in defining “willfully” and “intentionally” in the Digest: “They mean in such statutes not merely voluntarily, but Avith a bad purpose. An evil intent Avithout justifiable excuse. Doing, or omitting to do a thing, knowingly and Avillfully, implies not only knowledge of the thing, but a determination with a bad intent to do it or omit to do it.” St. L. I. M. & S. R. Co. v. Batesville & W. T. Co., 80 Ark. 499, 97 S. W. 660.
“Intentional” is used in the same sense here. That is, to make the person who takes the property liable for damages in the value of the coal at the mouth of the mine, there must be a determination to take it with a bad intent, and not merely voluntary. It must be with a bad purpose.
In this ease the plaintiff obtained a lease, first, for 124 acres from Baerlocher. At the time it procured this lease, it endeavored to secure a lease also on the lands in controversy, but Baerlocher declined to lease this land. Shortly thereafter another lease was taken, including the 124 acres already leased to plaintiff and 23.8 acres in addition. And of this 23.8 acres this lawsuit involves, not the entire tract, but the 3.8 aeres only. In this lease, however, the 3.8 acres was not correctly described, and defendants claim that, as the lease was written and recorded, they did not take any coal from the land on which plaintiff had a lease. In other words, as testified., to by Watson, if the recorded lease was. correct, Watson did not take coal from any part of the 3.8 acres, according to his testimony. It also appears from the evidence that Baerlocher not only agreed with the defendants to let them have this coal, but that he told plaintiffs that Watson should have the right to take coal from this tract of land.
Baerlocher died before the lawsuit was begun, but, before he died, he accepted pay from Watson for coal taken from this tract of land, which he presumably would not have done if there had been no understanding that Watson should take this coal.
Mr. Gaither, one of the witnesses who testified, had been manager and superintendent for the plaintiff for a number of years. He understood that Baerlocher had given Watson the right to take coal. The testimony on this question is conflicting, but it is sufficient to show that Watson did not take it with a bad motive, but that he thought he had a right, under his verbal agreement, to take it.
Appellant refers to many authorities and quotes from some, and, among other things, contends, and the authorities support the' contention, that it is the duty of defendant to know the boundaries of his own land and keep within them, and ignorance thereof would not jus tify a trespasser upon his neighbor’s land. Jeffries v. Hargis, 50. Ark. 65, 6 S. W. 328.
■ There is no controversy about this proposition of law. But in this case there is no contention about the boundaries, unless it might be said that the second lease taken, not describing the land accurately., might justify Watson in taking coal up to that line. We do not think that it would justify it, however, for the reason that he knew that Baerlocher had 23.8 acres, and he knew that the lease purported to convey 23.8 acres, and he therefore knew that the lease to the plaintiff included the land about which he and Baerlocher had had the vei’bal agreement. We think his conversation with the superintendent and manager of the plaintiff and the understanding he had with Baerlocher and all the facts and circumstances justify the conclusion that he -was not a willful trespasser.
We deem it unnecessary to set out the testimony at length. It is conflicting, but we think it justifies the conclusion that we have reached. We also deem it unnecessary to comment upon or review the authorities to which attention has. been called by appellant, because there is no dispute about the rules of law applicable to this case. And these principles or rules of law are well settled by decisions of this court, which make it unnecessary to refer to any other authorities.
The chancellor -was in error in holding that the plaintiff’s claim was barred by laches. It is true that no suit was begun and no action of any kind taken during the life of Baerlocher. And it was proper to admit this testimony for the purpose of showing the action of the parties and as bearing on the credibility of the witnesses. But we do not think it sufficient to bar the cause of action.
Since the appellant itself says that the only ques.tions involved are the amount of coal taken and the measure of damages, it is unnecessary to discuss any other questions. The measure of damages is the value of the coal as it was originally in place in the ground. It will therefore be necessary, as contended by appellant, to ascertain the amount of coal taken, and it will also be necessary to take proof on the value per ton of the coal as it was originally in the ground.
The decree is therefore reversed, and remanded with directions to ascertain the amount of coal taken and the value of the coal in the ground, and to take such further action as may be necessary, not inconsistent with this opinion. | [
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McHaney, J.
Appellee brought this action against appellants, the railroad company and its trustee in bankruptcy, to recover damages for personal injuries she alleges she sustained as a result of a collision between passenger train No. 18 of appellants and an automobile she was driving, on the Main street crossing, in the town of Gurdon, Arkansas, about 6:30 p. m., June 11, 1941. She had been driving south on highway 67, and when she came into Gurdon she turned east on highway 53, which crosses the railroad tracks and leads into the business district over the Main street crossing. A string of box cars was spotted on a passing or side track west of the main lino and within four to six feet of the crossing, and it is alleged that these cars cut off her view of train No. 18, approaching from the south, until, while driving very slowly in second gear, she had reached a point too close to the main line track to stop before getting on the track in front of said train, so she gave it the gas in an unsuccessful effort to get across. The train ivas traveling at from 15 to 20 miles per hour and was in the act of coming to a stop for the station just north of the crossing. The train or some portion of it struck or caught the rear bumper of the car and pushed or knocked the back end of the car north some five or six feet without turning it over and, apparently, without doing it much damage, as appellee drove away from the scene of the accident. Her brother-in-law, riding with her, later took the wheel and drove her to the office of a physician, where she was examined by Dr. McLain who testified she had not been injured in the accident. The negligence alleged was failure to give the statutory signals, failure to have a flagman on the crossing and failure to have other signals of the approach of said train, and that the trainmen operated said train up to and over said crossing without giving any signal, knowing said string of box ears would obstruct the view of persons going over said crossing from the west to the east. She alleged as damages that her ‘ ‘ entire nervous system was greatly damaged and upset”; that; she had ‘ ‘ suffered great and excruciating pain and mental anguish” and will “for a long time, to come”; and that her “injuries are permanent and lasting.” She prayed for $3,000 damages. The answer was a general denial and a plea of her own carelessness and negligence. It alleged that the crossing was protected by a flagman who warnecl her of the approaching* train, and that it was protected by an electric gong and wigwag signals which were sounding and working.
Trial to a jury resulted in a verdict and judgment for appellee for $1,000 and this appeal followed.
Appellee is not a hew litigant in this court to recover damages for personal injuries. In Mo. Pac. Transportation Co. v. Howard, 201 Ark. 6, 143 S. W. 2d 538, she recovered a judgment for $12,000 against the transportation company in the Nevada circuit court for total and permanent disability. That case was reversed for the reasons there stated.
Appellee, Stockton and two other witnesses testified to the effect that the train gave no signals of its approach, by ringing the bell or blowing the whistle; that they saw no flasher signal lights, although it is undisputed that there are four such lights on that crossing; that such lights are red and work by electricity, when there is a train on the track within a half mile of the crossing, by automatic control; that these flasher lights were inspected by the signal man, Mr. Sandridge, on the 10th and were again inspected by him ten or fifteen min utes after the accident, and they were found to be in proper working condition; and that they saw no flagman on the crossing’ who tried to stop them. Of these four witnesses, one was the appellee; another was her brother-in-law, riding with her, who also sued for damages, but failed to recover; another was a discharged employee of appellants and the other was a man from Prescott who is well acquainted with appellee and Stockton and is a good friend of her brother. Only two of them may be said to be disinterested witnesses. In contradiction of the testimony of appellee, Stockton and her two other witnesses, appellants introduced 19 witnesses, seven of whom were employees, and 12 of whom were apparently wholly disinterested in the result of the lawsuit, who testified either that the bell was ringing or that the whistle was sounded for this particular crossing or that the flasher signals were working or that Sullenberger, the flagman, was flagging the crossing and attempted to stop appellee and Stockton to keep them from driving-on the track in front of the oncoming* train, and that they nearly ran over him, so desperate was his attempt to stop them. Twelve of these witnesses swear that the automatic bell was ringing, thirteen that the whistle blew for this crossing and the one south of it, eleven that the flasher signals were working, and seven, including- Sullenberger, that he was on the crossing, attempted to flag appellee, and that he was nearly run over by her in attempting to get her to stop. One of these witnesses, Leon Woods, an employee of the Southern Ice Company at G-urdon, testified that he was about half way between the depot and the crossing when the accident happened; that he heard the bell ringing-; that the flasher lights were working; that some one was out there flagging the crossing, but the car did not slow up, .although it was flagged in plenty of time to stop and the car nearly ran over the flagman and he jumped to get out of the way; and that the whistle blew for both crossings. In addition to all this direct and positive testimony, the approaching train was making .a lot of noise and the locomotive was emitting smoke. Stockton made a written statement shortly after the accident on the same day in which he said he saw the smoke over the top of the bos ears spotted near the crossing and called to appellee to stop, but she said she could not and attempted to get across ahead of the train.
The jury by its verdict has found that all this evidence by appellant’s witnesses is false and that the preponderance of the evidence shows that the whistle was not blown, the bell not rung, the flasher signal lights not working, no flagman on the crossing and that the train was not making sufficient noise to warn appellee and Stockton of its approach. Just how this jury, or any other fair minded jury, could have reached such a verdict, or that the court could have refused to set it aside because clearly against the great preponderance of the evidence, is difficult to understand.
We think appellee and her passenger were clearly guilty of negligence, even though it be conceded that the signals were not given, the flasher lights not working and that the flagman was a mythical Mandrake man who could not be seen. The very fact that box cars were spotted so near the crossing, as to cut off the view to the south, made it her duty, in the exercise of due care, to approach the main line track in such a way as to permit her to get a clear view to the south after the box ears ceased to obstruct her view and to stop, if necessary, to avoid the danger. In other words, as the danger in-' creases, the degree of care required to free one of contributory negligence in a crossing' accident increases. As said in L. & A. Ry. Co. v. Ratcliffe, 88 Ark. 524, 115 S. W. 396: ‘ ‘ There is no imperative duty resting upon him to stop and look and listen. The duty is to look .and listen. If this cannot be properly discharged without stopping, then he must stop. If it can be, then there is no necessity of stopping. St. Louis, I. M. & S. Ry. Co. v. Martin, 61 Ark. 549, 33 S. W. 1070.” See, also, St. L. & S. F. Ry. Co. v. Stewart, 137 Ark. 6, 207 S. W. 440; St. L.-S. F. R. Co. v. Whitfield, 155 Ark. 560, 245 S. W. 323; Mo. Pac. Rd. Co. v. Hancock, 195 Ark. 414, 113 S. W. 2d 489, and cases therein cited. Of course, under our statute, § 1213 of Pope’s Digest, contributory negligence is not a complete defense, except where it equals or exceeds that of the carrier. The question is, Did this negligence of appellee equal or exceed that of appellants, conceding their failure to give the signals? If appellee could not see to the south until it was too late to stop, it was her plain duty to stop and look and listen to determine whether danger was imminent. Had she stopped, before reaching the main line track, she could have heard the train, and had she looked after easing by the. obstruction she could have seen it. It was there, making a loud noise, whether the whistle was blown or the bell rung, and signals cease to be factors where the presence of the train is plainly discoverable by other means. Thus her own negligence was the proximate cause of her 'injury, if any, which is doubtful.
We conclude, therefore, that appellee’s negligence, under the circumstances here presented, equaled or exceeded that of appellant’s, assuming that they were negligent in failing to give the signals, and that the judgment should be reversed and the cause dismissed.
It is so ordered.
Mehaeey, J., not participating. Humphreys, J., dissents. | [
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Humphreys, J.
On May 23, 1940, appellee filed suit in ejectment in the circuit court of Saline county against appellants to recover possession of the following described real estate in Saline county, Arkansas, to-wit: “A part of lot 2 of the northwest quarter, section 19, township 3 south, range 15 west, more particularly described as follows: Beginning at the northwest corner of said lot 2, of the northwest quarter, section 19, township 3 south, range 15 west, and run thence south 1336 feet to the center of Traskwood and Franceway Road; thence west along said road 658 feet; thence north 1340 feet to the north line of said lot 2; thence east to the place of beginning, containing 20 acres, more or less.”
In the complaint appellee deraigned his title through mesne conveyances from the government of the United States to himself, alleging that his immediate grantor, Mrs. Ollie McDade, conveyed said real estate by warranty deed to him for a valuable consideration on January 5,1939, which deed was filed for record in the office of the circuit clerk and ex-officio recorder on April 6, 1939; that appellants, without his knowledge and consent, took possession of said real estate wrongfully and unlawfully and have refused to deliver the possession thereof to appellee; that appellee is entitled to recover from appellants damage in the sum of $100 for rents and profits during their unlawful occupancy of said real estate. Appellee prayed for possession of said real estate and $100 for rents and profits and for costs.
On September 2, 1940, appellants filed an answer to the complaint, ■ stating that on March 15, 1938, Mrs. Ollie McDade executed and delivered a mortgage to Chester Carter and John M. Smith on the real estate described in the complaint except it described said real estate as being in “township 2, south, range 15 west,” instead of “township 3, south, range 15 west,” and stating that on February 4, 1939', Mrs. Ollie McDade executed a warranty deed to Chester Carter in satisfaction of said mortgage on said real estate as described in said mortgage; also stated that on February 8, 1939, Chester Carter and wife executed and delivered a warranty deed to appellant, H. M. Beckwith, to said real estate describing same as described in said mortgage, and stating further that Mrs. Ollie McDade intended to convey the real estate described in appellee’s complaint in her mortgage to Chester. Carter and John M. Smith, and in her deed to Chester Carter, and that Chester Carter intended to convey to H. M. Beckwith the real estate described in appellee’s complaint, but made a mistake and described the real estate as being in “township 2, south, range 15 west”; and also stating that on August 2, 1939, Mrs. Ollie McDade executed a correction deed to Chester Carter, and on October 28, 1939, Chester Carter executed a correction deed to H. M. Beckwith, both of which correction deeds properly described said real estate; and also stating that the instrument executed and delivered by Mrs. Ollie McDade to appellee on January 5, 1939, was intended as a mortgage and not a deed; also stating that H. M. Beck-with, appellant, has been in the continuous and uninterrupted possession of said real estate and claiming said real estate since February 8, 1939, under deed executed to him on February 8, 1939.
' Appellants prayed in their answer for a decree to the effect that appellee’s deed from Mrs. Ollie McDade be adjudged a mortgage and not a deed.
A motion was attached to the answer to transfer the cause to the chancery court, which motion was granted.
On tlie 22nd day of January, 1942, the cause was submitted to the chancery court upon the pleadings, exhibits thereto and the testimony introduced by the respective parties with'exhibits thereto, resulting in a finding and decree that the instrument of Mrs. Ollie McDade executed by her to appellee on the 5th day of January, 1939, was a deed and not a mortgage, and canceled the conveyances executed by Mrs. Ollie McDade to Chester Carter and by Chester Garter to appellant, H. M. Beckwith, as clouds upon appellee’s title and vested the title and the right of possession to the real estate described in appellee’s complaint in said appellee, and offset any taxes and improvements appellant, H. M. Beckwith, had placed upon the property, with rents and profits said Beckwith owed appellee during the time he was unlawfully and wrongfully in possession of said real estate, together with all costs, from which findings and decree appellants have duly prosecuted an appeal to this court.
The testimony in this case is conflicting in some respects, but we have concluded, after carefully reading same, that it clearly and decidedly reflects that the deed executed by Mrs. Ollie McDade to appellee on January 5, 1939, was intended by the parties as a deed.
This court said in the case of Beloate v. Taylor, 202 Ark. 229, 150 S. W. 2d 730, that: “In determining whether an instrument is a deed or a mortgage,- the test is: Did a debt exist at the time the instrument was executed, and was the instrument of conveyance intended by the parties to secure the debt. It requires clear and decisive testimony to prove that a deed absolute in form was intended as a mortgage. See headnote No. 1 in Hays v. Emerson, 75 Ark. 551, 87 S. W. 1027. In the Hays case, this court said: ‘The conveyance must be judged according to the real intent of the parties. If there is a debt subsisting between the parties, and it is the intention to continue the debt, it is a mortgage; but if the conveyance extinguishes the debt, and the parties intend that result, a contract for a resale at the same price does not destroy the character of the deed as an absolute con veyance. Porter v. Clements, 3 Ark. 364; Johnson’s Executor v. Clark, 5 Ark. 321; Stryker v. Hershy, 38 Ark. 264’.”
It is true in the instant case that appellee testified that when he took the deed absolute on its face from Mrs. Ollie McDade on January 5, 1939, he advised her not to sell the real estate as long as she had children to look after and he proposed to Mrs. Ollie McDade that he would not record the deed for ninety days and that if she paid him the amount in the meantime he would convey the real estate back to her. He testified, however, that she did not accept this proposition. Mrs.-Ollie McDade testified that she did not execute a deed to appellee at all, but that she simply signed a note against the real estate for the amount he paid her and that she owed. The great weight of the evidence reflects that she did sign a deed after it was read and explained to her and shows that she never offered at any time to pay the debt; that she treated the debt as extinguished by the execution of the instrument which was a deed and not a mortgage in form. The record also reflects that at the time she made this deed to appellee she was in possession of the real estate in question by tenant. The absolute title to the property as we read the evidence, passed from her to appellee upon the execution of her deed to appellee, and she had no right thereafter to attempt to convey said real estate to anyone. The record reflects that she did not convey it to anyone thereafter by correct description. The conveyance that she made to Chester Carter and Chester Carter’s conveyance to H. M. Beckwith described the real estate as being in “township 2, south,” whereas it was in “township 3, south.”
This court ruled in the case of McLain v. Jordan, 174 Ark. 738, 298 S. W. 10, that: “The record of a mortgage containing a description of the land as being in section 15, instead of section 16, where it was actually situated, was not constructive notice that it was intended to cover land in section 16.”
• The record reflects that appellee’s deed from Mrs. Ollie MeDade was filed for record several months before Mrs. Ollie MeDade attempted to correct the description in her deed to Chester Carter and before Chester Carter attempted to correct the description in his deed to H. M. Beckwith, and, of course, these deeds from Mrs. Ollie MeDade to Chester Carter and from Chester Carter to H. M. Beckwith were not constructive notice that they had any interest in the real estate at the time Mrs. Ollie MeDade conveyed same by warranty deed to appellee. According to the record, Mrs. Ollie MeDade was the owner and in possession of the real estate described in appellee’s complaint under deed from F. L. Hilliard. On January 5, 1939, she conveyed by warranty deed her title and right of possession thereto to appellee, and she had no right thereafter to convey same to Chester Carter, and Chester Carter had no right to convey same to appellant, H. M. Beckwith. When she did convey to Chester Carter and when Chester Carter conveyed to H. M. Beckwith the real estate described in appellee’s complaint was not conveyed by correct description. The description was not corrected or attempted to be corrected until months after appellee had recorded his deed. In other words, they acquired no interest in the real estate described in appellee’s complaint before appellee acquired his title from Mrs. Ollie MeDade and had filed his deed from her for record.
No error appearing, the decree is affirmed. | [
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Hart, C. J.,
(after stating the facts). The sole ground relied upon for a reversal of the judgment is that the circuit court erred in admitting parol evidence to show that W. II. Snyder signed the note -as an attesting officer of the J. H. Snyder Manufacturing Company, a corporation of which he was president, and that there was an understanding between him and the ‘bank that the corporation alone was to be liable on the note. In admitting this testimony the court evidently relied upon a decision of this court to the effect that, where the name of the corporation itself is signed and followed by the names of officers giving their official titles, indicating that they are signing in their official capacity for the purpose of attesting the signature of the corporation, the instrument constitutes the obligation of the corporation alone. Bank of Corning v. Nimnich, 122 Ark. 316, 182 S. W. 756, Ann. Cas. 1917D 566.
In that case the first signature to the note was “Farmers’ Union Gin & W. H. Co., per Henry Brown, Sec. and Treas.” There was no ambiguity in that signature. The fact that Henry Brown signed as secretary and treasurer under the name of his principal, prefixing “per” before his name, indicates that his principal was a corporation and that he was attesting its name as the signer of the note as secretary and treasurer of the corporation. Hence the court held that there was no ambiguity as to' the other signers of the note, although they added the word “director” to their signatures. The court said that the word “director” was merely descriptive of the person who signed.
This court has often decided that parol evidence cannot he admitted to vary the terms of a written contract or to show a contrary intention than that disclosed by the instrument, unless there is an ambiguity. This rule had been applied in the case of promissory notes. Lawrence County Bank v. Arndt, 69 Ark. 406, 65 S. W. 1052. In that case the only evidence on the face of the promissory note that the persons signing it did not intend to bind themselves personally was the affixing to their signatures of some designation of agency, as by signing themselves, respectively, as president, vice president, secretary and treasurer, without stating for whom or for what company they were acting. Under these circumstances they were liable personally, and could not, as a defense, show by parol evidence that they intended to bind a certain corporation for which they were acting.
We think the holding in that case is conclusive here.
In the case at bar the language in the body of the note is “I, we, or either of us promise to pay to the order of the First National Bank,” etc. The language thus used in the body of the note indicates that more than one person would sign it. The signatures are “J. H. Snyder Mfg. Co., W. H. Snyder.” The signatures do not indicate whether J. H. Snyder Mfg. Co. was a trade name, partnership, or corporation. There is no designation by W. H. Snyder that he signed as an officer or agent by any word.
We are of the opinion that there was no ambiguity in the note, and that the circuit court erred in admitting parol evidence to show that W. H. Snyder signed the note as attesting officer of J. H. Snyder Manufacturing Company, a corporation, of which he was president, and that there was an understanding between him and the bank that the corporation alone was to be liable on the note. For this error the judgment must be reversed, and the cause will be remanded for a new trial. | [
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Humphreys, J.
This is the second appeal in this ease. On the first appeal the facts were fully stated, and reference is made to that case for a statement of the facts in the instant case, as the facts were not materially different on a retrial of the cause. Arkansas Western Ry. Co. v. Robson, 171 Ark. 698, 285 S. W. 372.
The judgment was reversed and the cause was remanded for a new trial because the trial court erred in giving instruction No. 7 at the instance of appellees, which is as follows: “You are further instructed that the burden is upon the defendant company to prove by a preponderance of the evidence that the cattle were killed by their own inherent vices, weakness and natural propensities to injure each other, and not on account of the negligence or carelessness of the defendant company.” The court, in reversing the judgment, said: “Under the provisions of the bills of lading and the admission by the appellees that they accompanied these cattle in the shipment, the burden was upon the appellees to prove that the injury and damage sustained by the appellees resulted from the negligence of the appellant’s servant.”
In the instant case the court gave instruction No. 3, at the instance of appellees, which is as follows: “You are instructed that, when a railroad company contracts to receive cattle for transportation as a common carrier, and to safely carry and to deliver the cattle to the place of destination, by virtue of its responsibility it becomes an insurer of the cattle against all loss of every kind, except that caused by the act of God, of the public enemy, of public authority,- of the shipper, or from the inherent nature of the cattle.”
This instruction erroneously told the jury that, under the bills of lading, appellant was an insurer of the safe carriage of the cattle to their destination. This instruction was inherently wrong and in direct conflict with other instructions which the court gave, admonishing the jury that appellees must prove negligence on the part of appellant in order to recover damages for the cattle killed and injured. The latter instructions could not cure the inherent defect in the former instruction, No. 3, which was in conflict with them.
On account of the error indicated the judgment is reversed, and the cause is remanded for a new trial. | [
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Humphreys, J.
This suit was brought on the 13th day of August, 1941, by the members of a partnership doing a real estate business under the trade name of “Ozark Land Company,” against appellant, in the circuit court of Washington county, to recover a 5 per cent, commission on the sale price of a 24-acre tract of land situated near Springdale, Arkansas, growing out of a written contract of date May 21, 1940, listing said land by appellant with appellees for exclusive sale within three months for $4,500.
It was alleged in the complaint, after setting out the contract, that appellees were the procuring cause of the sale of said land made to Wallace Johnson in the early part of February, 1941, by appellant at a reduced price of $3,800, and appellees prayed for a judgment of $190 as commission upon said sale.
Appellant filed an answer admitting that she signed the contract on the 21st day of May, 1940, giving appellees the exclusive right to sell said land within three months for $4,500 and that, in the event said appellees procured a buyer within said time for $4,500, she agreed to pay them 5 per cent, commission, but that they changed the contract in material respects without her consent, and that after the expiration of the three months she notified the appellees that the place was off the market as they had not produced a buyer within three months of the date of the contract who was ready, willing and able to purchase said land, and that after waiting a reasonable time she, without the assistance of appellees, sold the land in the early part of February, 1941.
She prayed for a dismissal of the complaint.
The cause proceeded to a trial and at the conclusion of the evidence appellant and appellees respectively moved the court for instructed verdicts and neither asked for any other instructions, whereupon the court, without objections from either party, withdrew the cause from the jury and proceeded to determine the questions involved, and from a consideration of the evidence and the applicable law, the court found that appellant was indebted to appellees in the sum of $190 with interest at the rate of 6 per cent, per annum from the date of the judgment, from which an appeal has been duly prosecuted to this court.
Under these circumstances the verdict of the court is as binding as a verdict of a .jury and if there is any substantial evidence to support the verdict, it and the consequent judgment must be affirmed.
Viewing the evidence in the most favorable light to appellees it is about as follows:
' At the inception of the dealings between appellant and appellees, J. P. Dean, son-in-law of appellant, and his wife, daughter of appellant, were residing upon the 24-acre tract of land. Appellant, who is a non-resident of this state and who resided in Oklahoma, was a frequent visitor at the home of her son-in-law and daughter and was visiting them when the alleged contract was executed by appellant. Her son-in-law, J. P. Dean, during her visit contacted appellees for her and had them prepare an exclusive contract for the sale of said land on May 21, 1940, authorizing them to sell the land for $4,500 within three months, and that, in the event they did so to pay them the customary commission of 5 per cent, on the gross amount of the sale. The prepared contract contained the following provision:
“I further agree to pay said commission to Ozark Land Company if said property be sold or otherwise disposed of, by any other person, firm or corporation, including the undersigned, during the above period, or after the above period, on information given, received or obtained through this agency. ’ ’
This prepared contract was delivered to J. P. Dean and he took it home for his mother-in-law to sign and after procuring her signature thereto he delivered it to appellees.
Appellees then advertised the land in three or four newspapers, giving a detailed description thereof, one of the papers was the Fayetteville Daily. A man by the name of Wallace Johnson saw the advertisement in the Fayetteville Daily and went to appellees’ office in Spring-dale and asked that they show him the land. L. S. Phillips, J. W. Phillips and Bob Gosnell were the members of the partnership. The prospective purchaser said that he would like to see the 24-acre tract of land and Bob Gosnell took him out, showed him the land and introduced him to J. P. Dean and his wife. He said he wanted his wife to see the land also and so he came back at a later date to the office, and Bob Gosnell took him and his wife out to inspect the property. He became interested to the extent that he listed his property with -appellees for sale and told them if they could sell his place for $5,500 he would buy appellant’s land at the price specified in the contract. Wallace Johnson was not able to buy appellant’s land unless he sold his own. Appellant was visiting at the home of her son-in-law and daughter at the time Bob Gosnell introduced Wallace Johnson and his wife to J. P. Dean and his wife, but she was not present at that particular time. Thus the matter stood until J. P. Dean came to the office of appellees and directed them to reduce the price in the contract from $4,500 to $4,250 and then came back later and told them to change the price in the contract to $4,000 and also to insert in the contract the limitation of five months instead of three months, all of which they did.
L. S. Phillips, a member of the partnership, testified that his firm had all their dealings with J. P. Dean and his wife; that after the lapse of the ninety-day period of the contract J. P. Dean told him to make no further effort to sell the land, but on December 8, J. P. Dean came in and told them to go ahead and sell same, but that before doing so, to write appellant, Mrs. Green; that pursuant to this request they wrote to appellant, Mrs. Green, asking and advising her to give them the exclusive sale thereof, but that if she did not want to do that they would handle it any way she wanted them to handle it. It seems that she did not answer this letter by mail, but the witness produced the following note from her which was left on their' desk and which she admitted having written.:
“Mr. Phillips, I called to see you, but found nobody home. That price of 4,000 that J. P. gave you was only until January 1st, and now it has gone back to 4,250, but if you get a buyer don’t let him get away. After Sunday there will be someone living in the house. I am still at J. P. ’s Lincoln, Route 2.
‘ ‘ Sincerely,
‘ ‘ Mrs. Sarah Green. ’ ’
The witness admitted that during the ninety-day period specified in the contract for the exclusive sale of the property his firm did not present to appellant and did not present to J. P. Dean a purchaser who was ready, able and willing to purchase the land at either of the prices mentioned in the contract, but that the only purchaser they had for it was Wallace Johnson who had agreed to buy it in case he, Johnson, could sell his own place.
Nothing further occurred until Wallace Johnson negotiated a sale of his own property in the early part of February, 1941. Wallace Johnson then called at the home of J. P. Dean and he was absent. A day or so after he called, J. P. Dean contacted Wallace Johnson and Wallace Johnson offered him $3,800 for the property. J. P. Dean immediately called up the Greens in -Oklahoma and told them of the offer without stating who had made it. Appellant’s husband, Dr. Green, was doing the talking over the telephone with J. P. Dean, but appellant herself was standing by her husband and Dr. Green told J. P. Dean not to let the purchaser get away, but to close the deal with him. Mrs. Dean then wrote her mother about the matter and the deed was forwarded to Mrs. Green to execute to Wallace Johnson. She executed and returned the deed to the Deans and upon the delivery of the deed to him Wallace Johnson paid Mrs. Dean $3,800.
Wallace Johnson testified that he bought the land through J. P. Dean after Dean told him that he had taken the sale of the land out of the hands of appellees and that it had not been listed for sale with any other agency; that he would not have known anything about the land being for sale had it not been for the advertisement inserted in the Fayetteville Daily by appellees; that appellees interested him in the purchase of the land by taking him and his wife out to see the land; that appellees introduced him to J. P. Dean and his wife; that he offered J. P. Dean $3,800 for the land without making any further inspection of same; that J. P. Dean told him he would not close the deal at that price until he telephoned parties in Oklahoma; that either that day or the day after he told him that Mrs. Green was willing to take $3,800 for the property and that he bought it from appellant through the Deans for that sum and early in February, 1941, received a deed to the land and paid the consideration to Mrs. Dean.
We think a fair interpretation of the entire testimony is that appellant authorized the Deans to negotiate a sale of the 24-acre tract of land through appellees as her agents and that J. P. Dean had authority to make such changes as were made in the contract from time to time. He certainly had authority to reduce the price in the contract to $4,000 because appellant herself stated in the note she left on the desk of appellees that the price of $4,000 that J. P. Dean gave them was only until January 1,1941, and that now she wanted $4,250 for it, but if they got a buyer not to let him get away. In this note there was a recognition of the fact that the land was listed with them at $4,000 up to January 1, 1941, and after that they must sell it for $4,250. This necessarily meant after January 1, they must price it at $4,250, but not to let a buyer get away. Appellant knew that appellees had advertised her land for sale and had interested Wallace Johnson in it by showing Wallace Johnson and his wife the place and by introducing him to her son-in-law and daughter. She was visiting them at the time the place was shown to Wallace Johnson. In a little over a month after January 1, she reduced the price through the Deans to $3,800 and sold this property to the prospective purchaser who had been interested in the place by appellees and with whom they had a conditional offer for the place if said pur chaser could sell his own place. We have concluded that under all the circumstances and facts in the record appellees were the procuring cause of this sale. The party to whom she sold the land was the same party who had been interested in the land by appellees and the same party to whom appellees had shown the property and the same party to whom appellees had introduced the Deans.
There is, therefore, substantial evidence in the record to support the verdict of the court on the theory that after the property had been listed with appellees the ultimate sale thereof was brought about or procured by one of the advertisements appellees published in the newspaper and by showing the property to Wallace Johnson and introducing him to the Deans. In the language of Wallace Johnson, he would have never bought the property or even known anything about it unless he had seen their advertisement and been interested in same by their exertions, This court said in the case of Scott v. Patterson & Parker, 53 Ark. 49, 13 S. W. 419, that: “As there is conflict in the testimony as to material facts, we cannot disturb the findings of facts by the court sitting as a jury. We cannot say they are without evidence to support them. ’ ’
In the Scott v. Patterson & Parker case, supra, this court declared the law applicable to this class of cases by quoting as follows from the case of Tyler v. Parr, 52 Mo. 249: “The law is well settled that in a suit by a real estate agent for the amount of his commissions it is immaterial that the owner sold the property and concluded the bargain. If .after the property is placed in the agent’s hands, the sale is brought about or procured by his advertisements and exertions, he will be entitled to his commissions. Or if the agent introduces the purchaser or discloses his name to the owner, and through such introduction or disclosure, negotiations are begun, and the sale of the property is effected, the agent is entitled to his commissions, though the sale may he made by the owner.”
No error appearing, the judgment is affirmed. | [
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Hart, C. J.,
(after stating the facts). The decision of the circuit court was correct.
In Airheart v. Winfree, 170 Ark. 1126, 282 S. W. 963, it was held that, under Amendment No. 11 to the Constitution, a county could not issue bonds but one time, and that was for the debt existing at the time the amendment was adopted. In the case cited the record shows that there were outstanding warrants in the sum of $38,337.48, which was the amount of the bond issue. The bonds were not. issued until some time after the adoption of the amendment, and, in the meantime, several of these outstanding warrants had been paid out of the general revenue. It was the contention in that case that this only amounted to a renewal of the indebtedness existing at the time of the amendment to the Constitution, and that these warrants could be paid out of the fund derived from the sale of the bonds. The court held that the indebtedness existing at the time of the adoption of the amendment had been reduced by payments of warrants out of the general revenue and that the payment operated as a .complete retirement of the indebtedness existing at the time of the adoption of the amendment to that extent, even though the warrants, were paid out of the general revenue of the county. The court said that, because it was not shown that the indebtedness represented by the warrants in that case was a part of the indebtedness of the county at the time of the adoption of the amendment, it was not such a claim against the county as could be paid out of funds derived from the sale of bonds.
In order to meet the situation arising from this decision, the Legislature of 1927 passed an act to provide for the relief of counties which had issued and held bonds under'the provisions of Amendment No. 11 and had erroneously paid some of the indebtedness for which said bonds were sold out of the general revenue. Acts of 1927, page 86. Section 1 of that act authorizes the county court, upon finding that any part of the indebtedness existing December 7, 1924, had been erroneously paid out of the general revenue of the county, when the same should have been paid out of the funds derived from the sale of said bonds, to make an order allowing said amount so erroneously paid out of the general fund, against the bond account, and credit the general revenue fund of said county with said amount so erroneously paid. This act is unconstitutional and void, for the reason that it authorizes the county court to do something which, under the provisions of said Amendment No. 11, as construed by this court, could not be done. If the Legislature could change the meaning of the amendment as construed by the court and make it mean something else than its plain meaning, then the amendment had just as well never have been passed. Snch a course would place an act of the Legislature above the Constitution. The meaning of a provision of the Constitution or amendment thereto having been declared by the court, it is plainly not within the power of the Legislature to change the meaning by statute.
The warrant involved in this case was issued on May 11, 1927, which was after the issuance of bonds under Amendment No. 11. It is not shown that this warrant was issued in renewal of a warrant for part of the indebtedness existing at the time of the adoption of said amendment, and it could not therefore be paid out of the funds arising from the sale of the bonds. The fund derived from the bond issue can only be used to pay the indebtedness existing at the time of the adoption of said amendment or to provide a sinking fund for that purpose for the bonds issued and not now due.
It follows that the judgment of the circuit court must be affirmed. | [
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Hart, C. J.
Appellant prosecutes this appeal to reverse a judgment against it in favor of appellee for $296.40, the value of a bale of cotton alleged to have been 'lost in transit in an interstate shipment of cotton.
This was an action by a shipper of cotton under a transportation contract for la .shipment of 92 bales of cotton from Magnolia, Arkansas, to New Orleans, Louisiana. Appellee had 92 bales of cotton stored in the warehouse of the Columbia Compress Company in Magnolia, Arkansas, and gave directions for his cotton to be shipped to New Orleans, Louisiana. The compress company loaded the cotton into a car of the railroad company on one of its tracks near the warehouse. The car containing the cotton was sealed by the railroad company, and it signed the bill of lading presented to it by the compress company. The bill of lading was dated July 15, 1919, and contained a condition on the back of it which reads as follows:
“Except where the loss, damage, or injury complained of is due to delay or damage while being loaded, ■or damaged in transit by carelessness or negligence, as conditions precedent to recovery, claims must be made in writing to the originating or delivering carrier within six months after delivery of the property (or, in case of export traffic, within nine months after delivery at port of export), or, in case of failure to make delivery, then within six months (or nine months, in ease of export traffic), after a reasonable time for delivery has elapsed; and suits for loss, damage or delay shall be instituted only within two years and one day after delivery of the property, or, in ease of failure to make delivery, then within two years and one day after a reasonable time for delivery has elapsed.”
The cotton was consigned to H. R. Gould Company, New Orleans, Louisiana, and was delivered to that company on the 23d day of July, 1919. The seals .had not been broken on the ear when the cotton was delivered to consignee, but, when the cotton was unloaded from the car, it was ascertained that there were only 91 bales in it. Notice that one bale was missing was given to the railroad company, but it refused to make piayment for the cotton. Hence this lawsuit.
One of the defenses to the suit is that it was not brought within the time provided by the act of Congress regulating interstate shipments. The act of Congress in question provides for bills of lading to be issued by the carrier receiving the property for transportation from one State to another, and contains a proviso which reads as follows:
“Provided, further, that nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he had under the existing law; provided, further, that it shall be unlawful for any such common carrier to provide by.rule, contract, regulation, or .otherwise, a shorter period for giving notice of claims than ninety days and for the filing of claims for a shorter period than four months, and for the institution of suits than two years; provided, however, that if the loss, damage, or injury complained of was due to delay or damage while being loaded or unloaded, or damaged in transit by carelessness .or negligence, then no notice of claim nor filing of claim shall be required as a condition precedent to recovery. (24 Stat. 386; 34 Stat. 595; 38 Stat. 1196; 39 Stat. 411). ’ ’ See United States Compiled Statutes, Annotated, vol. 8, § 8604a, p. 9291.
The proviso also copied in the bill of lading was made pursuant to this act. The bill of lading for the cotton was issued by the railroad company on July 15, 1919, iat Magnolia, Arkansas, and the cotton was delivered to consignee at New Orleans, Louisiana, on July 23,1919. The present suit was not instituted until November 29, 1921.
In A. J. Phillips Co. v. Grand Trunk Western Ry Co., 236 U. S. 666, 35 S. Ct. 444, 5 L. ed. 774, the fact was that all claims for the recovery of damages for overcharges were not brought within, the time prescribed by the act of Congress. It was contended, however, that the case was to be governed by the Michigan rule, which did not permit a defendant to take advantage of the statute of limitations by a general demurrer to the declaration. The Supreme Court of the United States denied the contention, however, and in discussing the question said:
“But that rule does not apply to a cause of action arising under a statute which indicates its purpose to prevent suits on delayed claims, by the provision that all complaints for damages should be filed within two years, and not after. Under such a statute the lapse of time not only bars the remedy but destroys the liability (Finn v. United States, 123 U. S. 227, 232, 8 S. Ct. 82, 31 L. ed. 128), whether complaint is filed with the Com mission or suit is brought in a court of competent jurisdiction. This will more distinctly appear by considering the requirements of uniformity, which, in this as in so many instances, must be borne in mind in construing the commerce act.”
To the same effect see Missouri, Kansas & Texas Ry. Co. v. Harriman, 227 U. S. 657, 33 S. Ct. 397, 57 L. ed. 690. This declaration of the law regulating interstate shipments, by the Supreme Court of the United .States, is of controlling force, because it is the tribunal of ultimate authority for the settlement of the question.
This court, however, has announced the same rule in the case of Farr v. St. Louis Southwestern Ry. Co., 154 Ark. 585, 243 S. W. 800. The .second syllabus contains the gist of the holding of the court on the question, and reads as follows:
“In an action by a shipper against a connecting carrier for damages from delay and neglect as to a shipment which the shipper received from the initial carrier, a bill of lading providing that, ‘ except where the-loss, damage or injury complained of is due to -delay or damage while being loaded or unloaded, or damaged in transit by carelessness, or negligence, as condition precedent to recovery, claims must be made in writing to the originating -or delivering carrier within six months after reasonable time for delivery h'as elapsed, and suit for loss, damage or delay shall be instituted within two years and a day after a reasonable time for delivery has elapsed, held that suit must be brought within two years and a day, as the exception relates only to the written notice of the claim.”
It follows that the judgment of the circuit court must be reversed; and, inasmuch as the undisputed evidence shows- that the right of action was barred because not brought within two years, the cause of action will be dismissed here. It is so ordered. | [
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Griffin Smith, C. J.
The form of action is unlawful detainer. Stroud alleged that as owner he rented certain land to Bay, the -latter having taken possession in 1936. A similar contract for 1937 and 1938 was made at a later date. Bent for 1939 was not paid, although appellant held over. Bequisite notice to vacate was given.
The answer admitted the 1936 contract, but claimed there were no improvements on the property. It was agreed appellant should erect buildings not to exceed $100 in cost, and that Bay should retain possession until there had been reimbursement. Betention of 1936 rents did not suffice; therefore, says appellant, a new agreement was made for 1937. At the close of the second year of occupancy, rents had been insufficient to repay appellant, the deficiency amounting to $32.50.
It was then alleged that when appellant rented the land he did so upon appellee’s false representations of ownership. Taxes for 1932 were not paid, and in 1933 there ivas forfeiture to the state. Default was certified to the land commissioner at Little Bock. The state’s title was confirmed in 1936. Act 119 of 1935.
In February, 1938, appellant received information that appellee did not own the land. He immediately asked Stroud to take such steps as might be necessary to preserve the property. There is the assertion by appellant that he told appellee the rental agreement could not be continued unless title should be cleared. In March, 1938, appellant purchased from the state.
It is contended the rental agreement was void for want of consideration, appellee’s title having been lost.
The question is, May one who enters under a contract creating the relationship of landlord and tenant challenge such landlord’s title?
Appellant, in support of his argument that Stroud was a trespasser in his attempt to exercise dominion over the land, relies upon Prioleau v. Williams, 104 Ark. 322, 148 S. W. 101, and other cases shown in the footnote.
In Bettison v. Budd, 17 Ark. 546, 65 Am. Dec. 442, it was said that the rule prohibiting a tenant from disputinghis landlord’s title does not reach beyond the particular title under which the tenant enters, and if the landlord is divested of Ms title. “. . . the defendant may make it appear, and protect himself in a suit by Ms landlord for possession.” It was further said that a tenant is not bound by the relationship to see that taxes are paid, “. . . and if the land be forfeited for the non-payment of taxes, and offered for sale [by the state], and the tenant becomes the purchaser, he may set up such title against his landlord.”
The holding in Pickett v. Ferguson, 45 Ark. 177, 55 Am. Rep. 545, is that a tenant who is not under obligations to pay taxes may purchase, at a tax sale, the lands he is in possession of and may assert such title; and the sale, if otherwise valid, extinguishes the landlord’s title and cuts off the lease. Also, a tenant may purchase the demised premises at an execution or judicial sale. In a subsequent controversy relating to possession or the payment of rent, it may be shown that the landlord’s title has expired and that the estate has vested in the tenant.
These cases would control the instant appeal in Ray’s favor but for testimony regarding transactions between appellant and appellee in 1938.
Stroud testified, as did Ray, that cost of the house was to be paid from rents. However, Stroud’s version-was that after crops had been gathered in 1938 a settlement was had. It included an allowance of $42 to compensate the sum Ray paid for the state deed. Stroud testified that “. . . after we settled I owed him $32.41. I told him I would get the money at once and pay him if he would move out ;• or, if he stayed, he could hold it out of the rents. He said that was all right, and he turned the place back to me.”
Stroud’s testimony was that he told Ray he could not retain the place during 1939, and that Ray replied, “All right, I don’t know what else to do. I’ll just stay here, I guess.” When appellee later demanded possession, appellant refused to move.
Appellant testified that when he learned appellee did not own the land, he had his wife write appellee, who called for the purpose of discussing the matter. Appellee remarked that if anyone paid the taxes, he [Stroud] would taire the property away from him. After procuring the deed appellant saw appellee and told him what had been done. Appellee is quoted as having said, “What are'you going to do about it?” Appellant replied, “Give me hack my money and take it.” Appellee said “All right.” Appellant then testified: “But he hasn’t given the money to me yet.” At another place in appellant’s testimony there is this statement: “I had already agreed to let him have the place back if he paid me, but he has never paid me a cent.”
The evidence establishes a contract between appellant and appellee by which appellant recognized appellee as his landlord after having acquired the state’s title. If, in fact, the relationship of landlord and tenant existed after Ray procured his deed, he could not question Stroud’s right to rent the laud, nor challenge appellee’s right to possession on expiration of the term. After surrendering possession, appellant may seek to assert his title. He may sue in ejectment, or resort to equity in an effort to cancel appellee’s claims to the property as a cloud on his title.
Judgment affirmed.
Earle’s Administratrix v. Hale’s Administrator, 31 Ark. 470; Garrett v. Edwards, 168 Ark. 243, 269 S. W. 572; Burton v. Gorman, 125 Ark. 141, 188 S. W. 561; Morris v. Griffin, 146 Ark. 439, 225 S. W. 634; Smart v. Alexander, 201 Ark. 211, 144 S. W. 2d 25.
King v. Duncan, 62 Ark. 588, 37 S. W. 228; Williams v. Petty, 168 Ark. 642, 271 S. W. 9; State v. Hicks, 53 Ark. 238, 13 S. W. 704; Eager v. Jonesboro, Lake City & Eastern Express Co., 103 Ark. 288, 147 S. W. 60; Mushrush v. Downing, 181 Ark. 85, 24 S. W. 2d 972, and other cases of like import.
Each side asked for an instructed verdict, and did not request other instructions. This had the effect of taking the case from the jury.
Continuing his testimony, appellee said: “In a few days I came to town and saw Mr. Beloate and asked him what it would take to get this place straightened up. He told me he would have to see Ray’s papers before he could tell exactly. So when we settled up [Ray] showed me his title. He got his cotton receipts and we settled on just what he had there, and it left me owing him $32.41. When I got up to leave I didn’t think about getting the deed from him. I don’t know whether he would have given it to me, or not. I didn’t ask him for it then.” | [
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Hart, C. J.
Appellant and appellee each sought to foreclose a mortgage on the same land, and this appeal only involves the question of priority of liens.
Appellant first seeks a reversal of the decree holding that appellee had a prior lien on the land, on the ground that appellee’s mortgage is barred because there was no compliance by it with the provisions of § 5399 of Kirby’s Digest, now § 7382 of Crawford & Moses’ Digest. In construing this statute, in Morgan v. Kendrick, 91 Ark. 394, 121 S. W. 278, 124 Am. St. Rep. 78, the court said:
“The effect of that statute, as to strangers to the transaction, is that, when the debt secured by a mortgage is apparently barred by limitation, and no payment which would stay the limitation is indorsed on the margin of the record of the mortgage, it becomes, as to third parties, an unrecorded mortgage; and, like an unrecorded mortgage, it constitutes no- lien upon the mortgaged property, as against such third party, notwithstanding he has actual knowledge of the execution of such mortgage.”
The record shows that the section was not complied with, and appellant would be entitled to a reversal of the decree, unless it is barred of relief on the ground of equitable estoppel under the facts presented by the record. On the part of appellee it is sought to uphold the decree on the ground that appellant recognized that appellee’s mortgage was a paramount lien on the land, and induced appellee to renew its mortgage with the understanding that it had a prior lien.
The principle of equitable estoppel was recognized at an early day by this court, and has been followed ever since, being applied according to1 the varying’ facts of each particular case. In Trapnall v. Burton, 24 Ark. 371, in a learned opinion prepared by Albert Pike, the court said:
“A man is estopped when he has done some act which the policy of the law, or good faith, will not permit him to gainsay or deny; and when the principle of estoppel is understood, and unwise legislation or decision does not push the doctrine beyond reasonable limits, it is one of the wisest and most just and rig’hteous doctrines of the law.' The whole principle of equitable estoppel is that, when a man has deliberately done an act or said a thing, and another person, who had a right to do so, has relied on that act or word, and shaped his conduct accordingly, and will be injured if the former can repudiate thé act or recall the word, it shall not he done; but, of whatever things the act was evidence, in the nature of things, and on ordinary principles, it shall be taken to be conclusive evidence; and what was said, the party shall not deny to have been true.”
Among the later decisions of this court adhering to the rule, we cite the following: Brownfield v. Bookout, 147 Ark. 555, 228 S. W. 51; Ferguson v. Guidon, 148 Ark. 295, 230 S. W. 260; Pettit-Galloway Co. v. Womack, 167 Ark. 356, 268 S.W. 353; Baker-Matthews Lumber Co. v. Bank of Levanto, 170 Ark. 1146, 282 S. W. 995; and we call attention to the case of Scott v. Orbison, 21 Ark. 202.
On this branch of the case the evidence is in direct and irreconcilable conflict. On the one hand, the cashier of the bank of appellee testified in unequivocal terms that appellee renewed its mortgage and took a new note for its debt and kept the old note, pursuant to an understanding between it and appellant that its mortgage ivas superior to that of appellant. Appellee first wrote to appellant that Hutchinson wanted to renew his mortgage, and that appellee wished to comply with his request if appellant would renew its mortgage. The letter from appellant to appellee in reply reads as follows:
“Dear sirs: Dr. Hutchinson was in this morning, and has arranged with us to extend his paper until fall. We are glad to accommodate him, and trust it will be agreeable for you to do the same. ’ ’
According to the testimony of the president of the bank of appellee, there was an agreement between Dr. Hutchinson, the cashier of the bank of appellant, and himself, that appellant would renew its mortgage if appellee would do likewise. It was recognized between the parties that appellee had a first mortgage on the land, and it is inferable from the testimony of this witness that the renewal of both mortgages was to the Advantage of all parties concerned and that there was no dispute between them at that time as to the priority of mortgages. Appellant expressly recognized that appellee had a prior mortgage, and the record reflects this to be the fiact at that time. Dr. Hutchinson corroborated in every respect the testimony of the president of the bank of appellee with regard to the renewal of the mortgages, except that he stated that his recollection was that the agreement for the renewal of the mortgagees was made with the president of the bank of appellant, instead of with the cashier, as testified to by the president of the bank of appellee. He expressly testified that appellant considered that it held a second mortgage on the land, and the renewal was made with that understanding between all the parties. At the .time Dr. Hutchinson gave his mortgage to appellant, he submitted to the president of the bank an abstract showing that appellee had a first-mortgage on the land, and the amount thereof.
On the part of appellant, the president of its bank testified that he wrote the mortgage for his bank, and that it was the custom to write in a mortgage that it was subject, to a prior mortgage if such was the case, and that he would have done so in this case if he had known that appellee had a prior mortgage. He denied in positive terms that there was an agreement or understanding between the parties that appellee had a prior mortgage at the time the renewal mortgage in question was executed. The cashier at the time of the original transaction of the bank of appellant and his successor were both witnesses for appellant. They denied that they had made any agreement with appellee in regard to the renewal of the mortgages. They admitted, however, that the transaction was had with the president of the bank of appellant.
After carefully considering the evidence and accompanying circumstances as shown by the record, we are of the opinion that the doctrine of equitable estoppel applies in this case, and that the chancellor was correct in so holding. There is no question but that appellee had a prior lien at the time the last renewals were had, and it might have foreclosed its mortgage, or have caused Dr. Hutchinson to make a small payment and have indorsed it on the margin of the record, if it had. not understood tliat appellant agreed to the renewals with the understanding that appellee had a prior mortgage. Thus it will be seen that appellee was induced to act to its disadvantage by its agreement with appellant, and it would be inequitable to allow appellant to take advantage of its own conduct and thereby defeat appellee in the assertion of a right that existed at the time the renewal agreements were made.
Then, too, the agreement between the parties at the time the renewal mortgiages were taken gives appellee the prior lien. In McFaddin v. Bell, 168 Ark. 826, 272 S. W. 62, it was held that recitals in a mortgage that it is taken subject to all mortgages against it on record, amounts to a recognition by the mortgagee that such mortgages as were on record were prior valid liens on the land, and preclude the mortgagee.from pleading the statute of limitation. But it is insisted by counsel for appellant that this principle does not apply here, because the agreement, if made, was not written in the mortgage of appellant, and, being verbal only, the rule did not apply. On this point Judge Jones, in his treatise on mortgages, says that parties may, as between themselves, make a valid agreement, though it be verbal only, that one of two mortgages shall be prior to the other; and many cases from courts of last resort in various States are cited in support of the text. Jones on Mortgages, 7th ed. vol. 1, § 608.
The result of our views is that the decree of the chancery court was correct, and it will therefore be affirmed. | [
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Mehaeey, J.
On June 15, 1925, appellee instituted suit on a note for $165.94 and interest against L. B. Yancey. Summons was issued and served on defendant.
Oil the 26th day of June, the day set for trial, the defendant did not appear, and judgment was rendered against him for the amount of the note and interest. On the 28th day of July, 1925, a writ of garnishment was issued and served on C. A. Blanton Company.
More than a year after judgment was rendered against C. A. Blanton Company, execution was issued against defendant and garnishee. The justice of the peace who rendered the judgment was no longer in office, and motions to quash judgment were filed with his successor. The justice of the peace set aside the judgments, and, on appeal to the circuit court, the original judgments of the justice of the peace were held valid, and Yiancey and the Blanton Company have appealed to ■this court. Their motion for a new trial states, that the judgment is contrary 'to law and contrary to the evidence. The ■ only other grounds in the motion for a new trial are, fourth, that the court erred in finding' that the original note sued on herein had ever been filed with the justice of the' peace in the wiay and manner as prescribed by law, in order to give the justice of the peace jurisdiction of the question; and, fifth, that the court erred in finding that the service on C. A. Blanton Company was 'sufficient to sustain the judgment against it as garnishee.
Appellant’s first argument in his brief is that the court erred in finding that the original note had been filed. It appears from the evidence that the garage where the justice of the peace had had his office had been burned, and be had requested Mr. J. 'G-. Waskom,' an attorney, to keep his docket and papers at his office, and that Mr. Waskom kept them there. Mr. Waskom is the attorney who filed this suit, and he testifies that he went to the justice of the peace, took the docket and the original note and the form of the summons, and handed tbam. to the justice of the peace. That the justice of the peace signed the summons and handed them back to the attorney. That the attorney, Wasko-m, put the note in the docket at about the place where the suit would be entered, and that the justice directed him to take them back to Waskom’s office, which he did. That the former garage of the justice had been burned, and that the justice had asked Mr. Waskom to keep his docket at his office, as he, the justice of the peace, had a very poor place to keep things of that kind.
The appellant, Yancey, testifies that he made two trips to the justice of the'peace, and did not get to see what was filed nor see the docket. But he admits that the justice told him that they were in Mr. Waskom’s office. And, so far as the proof shows, he never went to Mr. Waskom’s office to find them. Therefore, so far as the filing of the original note is concerned, if giving it to the justice of the peace was filing it, then the note was filed.
This court has said: “A paper is said to he filed when it is delivered to the proper, officer and by him received to be kept on file.” Hogue v. Hogue, 137 Ark. 485, 208 S. W. 579; Bettison v. Budd, 21 Ark. 578; Eureka Springs Stone Co. v. Knight, 82 Ark. 164, 100 S. W. 878; Case & Co. v. Hargadine, 43 Ark. 144; and Forehand v. Higby, 133 Ark. 191, 202 S. W. 29.
The circuit court sitting as a jury found that the note had been filed, and the findings of facts by the court are as conclusive here as the finding of a jury, and there. was ample evidence to sustain the finding of the court that the note had 'been filed.
The defendant, Yancey, does not dispute the debt or the note. There is no contention on his part that he. did not execute the note, and no contention that he did not owe the amount of the note.
His next contention is that there was no service on the Blanton Company. But appellants, in giving their testimony, did not claim that the writ of garnishment was not served. In fact, they state that it was served. But their contention is that the return of the officer simply showed a service on the Blanton Company, and that the officer was permitted to amend his return by showing that he served it on C. A. Blanton, president of the C. A. Blanton Company.
The chief purpose of the return of the officer is to show that the writ was -served, and there is no dispute about the service.
Appellant says there is nothing to show whether C. A. Blanton Company was a foreign or domestic corporation. The return of the officer shows that it was a corporation, and that C. A. Blanton was its president, and that service was had on him. And the' appellant does not claim that it i$ a foreign corporation or that service on C. A. Blanton was not proper because it was a foreign corporation, and it does hot contend now that C. A. Blanton was not the proper party upon whom to serve the writ of garnishment.
The appellants knew of the proceeding's against them in the justice court, and knew of the day set for trial, and they failed to appear or to take any action to get a new trial or to have the judgment vacated in the time provided by statute, and neither party appealed.
“This court is committed to the rule that ‘one who is aggrieved by a judgment rendered in his absence must show not only that he was not summoned, but also that he did not know of the proceedings in time to make a defense, in order to obtain relief.” Fore v. Chenault, 168 Ark. 747, 271 S. W. 704; State v. Hill, 50 Ark. 458, 8 S. W. 401; Moore v. Price, 101 Ark. 142, 141 S. W. 501; Quigley v. Hamilton, 104 Ark. 449, 148 S. W. 275; First National Bank v. Dalsheimer, 157 Ark. 464, 248 S. W. 575.
A party against whom a judgment is rendered must show a meritorious defense in order to get the judgment set aside. King v. Dickinson-Reed-Randerson Co., 168 Ark. 112, 269 S. W. 365; Moreland v. Youngblood, 157 Ark. 86, 247 S. W. 385; Minick v. Ramey, 168 Ark. 180, 269 S. W. 565.
The judgment of the circuit court is correct, and is therefore affirmed. | [
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Smith, J.
The nature of this suit and the decisive issue of fact is reflected in an instruction numbered 1, given at the request of appellee, who was the plaintiff below, over the objection and exception of appellant, the defendant below. This instruction reads as follows: “The jury is instructed that if you find from a preponderance of the testimony that on Sunday morning, April 13, 1911, the plaintiff, Joe Wood, was riding in an International truck, owned by the plaintiffs, Joe Wood and H. D. Sowell, and at the time being driven by Austin Sartin, traveling east on highway 70, on their own right-hand side of the road, using due care for their own safety, and when they reached a point about a mile and a half east of the town of Biscoe, they met the defendant, Cecil McNew, driving west on said highway, and that as they met the said Cecil McNew turned from his own right-hand side of the road across in front of the plaintiffs’ truck without giving any warning of his intention to do so turned over onto the plaintiffs’ right-hand side of the pavement and in front of them, so that the car and truck collided, and that the act of the defendant, McNew, in turning his car over onto the plaintiffs’ right-hand side of the pavement in front of the plaintiffs ’ truck was the sole and proximate cause of the damages to the plaintiffs, if any, you find they have suffered, and you find from a preponderance of the testimony that the plaintiff, Joe Wood, and the driver of said truck, Austin Sartin, at the time of the accident were using due care for their own safety, then your verdict will be for the plaintiffs and against the defendant.”
This instruction was given with the explanation by the court: “That instruction means this, gentlemen of the jury, if both were negligent in the operation of their vehicles neither can recover. One must be negligent in the operation and the other must be free from negligence in the operation of his vehicle.”
As a result of this collision the plaintiffs’ truck had been overturned and damaged, as was a lot of grapefruit which it was conveying, and the plaintiffs sued for damages in the sum of $3,800.
The defendant, McNew, filed an answer, denying that he was guilty of any negligence contributing to the collision, and he filed a cross-complaint, in which he alleged that the collision resulted from the negligence of the truck driver. He prayed judgment in his cross-complaint in the sum of $11,053 to compensate the very serious personal injury which lie sustained and the damages to his automobile which was wrecked.
The case presents no legal question of any difficulty. The controlling question in the case is the one of fact, that is, which driver was responsible for the collision. According to the testimony offered on behalf of plaintiffs, the defendant was driving on the wrong side of the road, and drove his ear head-on against the truck. Such was the testimony of the plaintiff, Wood, and of his driver, Sartin,- and this testimony was corroborated by that of Mrs. Anna Mae Bartrand and Mrs. Vera Bryer. These ladies testified that they were eyewitnesses, and according to their testimony Sartin had driven the truck as far to the right as he could safely do when the automobile, traveling on the wrong side of the road, ran into the truck.
The testimony of these ladies makes a clear case of liability against McNew, but the motion for a new trial alleged that evidence had been recently discovered which contradicted that of these ladies, and especially that of Mrs. Bartrand. An affidavit was filed by one, Will 'Sherbert, who had testified in the case. He and the other witnesses had been placed under the rule, and none of these witnesses heard the testimony of any other. Sherbert heard the argument of counsel before the jury, in which the testimony of Mrs. Bartrand and that of the lady with her was discussed. Sherbert then recalled that Mrs. Bartrand was the driver of a pick-up truck which arrived at the scene of the collision after it had occurred, and that he guided her truck around the place where the collision had occurred. Sherbert after the trial told counsel for appellant what be bad seen, and, according to his affidavit, the testimony of the ladies was false.
Mrs. Bartrand and Mrs. Bryer and another lady were returning from Little Bock in a pick-up truck. Mrs. Bartrand and Mrs. Bryer testified at the trial. The third lady was ill in her home at the time;, of the trial and did not testify. The ladies who did testify corroborated the testimony of Sartin, the driver of the truck. The plaintiff, Wood, one of the owners of the truck, was asleep when the collision occurred, but was awakened by the collision. There was some contradiction in the testimony of these witnesses as to the place where the collision occurred with reference to certain curves in the road; but it was, of course, a question for the jury to pass upon the credibility of the witnesses. This statement applies also to certain contradictions between the testimony of these ladies and two witnesses who came to the scene of the collision after it had occurred. However, plaintiffs’ witnesses all ag*reed that Sartin was as far on the right side of the road as he could safely go, and that defendant was on the wrong side of the road when he ran into the truck. It appears, however, that defendant, McNew, and the lady who had been his companion sat through the trial and heard all the testimony, and neither was called to contradict the testimony of these two ladies who did testify. A continuance had been granted at a former term of the court on account of the absence of the lady who had been defendant McNew’s companion. The lady witnesses who did testify had been subpoenaéd, and were present at the term of the court at which the continuance was granted, and no reason is shown why appellant, McNew, might not have ascertained what their testimony would be. He had until the next ensuing term of court in which to do so.
The newly-discovered evidence is what may be called impeaching testimony, that is, its purport was that the ladies had testified falsely. And what was said of such testimony in the case of Arkansas Power & Light Co. v. Mart, 188 Ark. 202, 65 S. W. 2d 39, is applicable here. We quote from that opinion as follows:
“The most that can be said about this newly-discovered evidence is that it discredited and impeached Powell. It is not claimed that he, at any time, made any statements about the accident in conflict with -his testimony at the trial of the case. . . .
“ ‘This court has many times held that motions for new trial on account of newly-discovered evidence are addressed to the sound discretion of the trial court, and that this court will not reverse for failure to grant unless an abuse of such discretion is shown.’ Forsgren v. Massey, 185 Ark. 90, 46 S. W. 2d 20.
“ ‘Moreover, the testimony of Johnson and his wife on the matter set out in their affidavits was in the nature of impeaching testimony of the Smiths; and it has been held by this court that newly-discovered evidence which goes only to impeach or discredit a witness is not ground for a new trial.’ Bradley Lbr. Co. v. Beasley, 160 Ark. 622, 255 S. W. 18; Freeo Valley R. Co. v. Rowland, 164 Ark. 613, 262 S. W. 660.
‘ ‘ The granting of new trials on the ground of newly-discovered evidence is always within the discretion of the trial court. Banks v. State, 133 Ark. 169, 202 S. W. 43; Hinkle v. Lassiter, 142 Ark. 223, 218 S. W. 825.” See also, Missouri Pacific Transportation Co. v. Simon, 200 Ark. 430, 140 S. W. 2d 129.
In view of the facts recited we are,unable to say that the court abused its discretion in refusing to grant a new trial on account of this newly-discovered evidence.
As has been said, the case on its merits presents no question of legal difficulty, yet the court gave a number of instructions at the request of both plaintiff and defendant, but refused to give instructions numbered 5 and 7 requested by the defendant. The error assigned in the refusal to give these instructions may be disposed of by saying that they were covered by other instructions which were given.
The objection to the instruction numbered 1, above recited, was “that such instruction could be, and probably was, construed by the jury that it was necessary only for the plaintiff to use due care for his own safety, and not the safety of others, and that it further suggested to the jury that the wreck occurred a mile and one-half east of the town of Biscoe. ”
We think the instruction was not open to the objection made to it, and that it was not an erroneous declaration of law.
The verdict in this case was not unanimous, and was returned only after the jury had reported disagreement and had been admonished by the court as to the desirability of reaching a verdict. The jury retired and after deliberation lasting forty-five minutes returned with the verdict upon which the judgment was pronounced from which is this appeal. We find no error in this respect. The practical administration of the law requires that trial judges shall have this power, and its exercise has been upheld in many cases, and we find no abuse of that power here. Graham v. State, 202 Ark. 981, 154 S. W. 2d 584. There is an extensive note on this subject in the annotations to the case of Meadows v. State, 1915D Ann. Cas. 663.
The verdict was for $1,000, and is not complained of as being excessive. The testimony would have supported a much larger recovery, in view of the damage done to the truck and to its cargo, and was probably made as small as it was because of the much greater damage which McNew sustained to himself and to his car.
We find no error, and the judgment must be affirmed, and it is so ordered. | [
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Smith, J.
At the trial from which this appeal comes the court made a finding- of fact which presents the issues in the case. "Without reciting the testimony, it may be said that the finding of fact is largely in accord with the undisputed testimony, and," as to any matters about which there was a conflict, is supported -by substantial testimony. We -therefore assume the facts tó be as found by the court. ' This finding is as follows:
“During the season of 1925 H. J. Payne acted as agent for Leigh Kelley for the sale of the latter’s potatoes, under a verbal contract, by the terms of which Payne was required to find purchasers, deliver to them the potatoes, collect the purchase price, and remit the proceeds, less his commission, to the defendant Kelley. That, pursuant toi such contract, Payne sold, among others, three cars of potatoes belonging to Kelley, Patty and Rogers to one H. W. Burrough, and took the latter’s check for the sum of $1,664.68 to cover the purchase price, said check being drawn on the Bank of Lavaca and payable to ‘H. J. Payne & Sons’; that said sale was made on the sole judgment of Payne, and the identity of the purchaser was not known to Kelley and associates. That said check was indorsed by Payne, the name of Kelley and his associates not appearing thereon, and deposited in his (Payne’s) checking account with plaintiff bank in the name of H. J. Payne, Agent. That Payne was acting as agent for some fifteen or twenty other growers of potatoes under similar contract, and deposited the proceeds of all sales made by him for all growers in this same checking account; that he remitted to all such growers by check drawn on said account; that Kelley and his associates had no knowledge of the fact that collection from Burrough had been made by check payable to Payne; that, in accepting such check from Payne and in crediting the amount thereof to Payne’s checking account, plaintiff had no knowledge of Payne’s agency for Kelley.and associates in the matter of the sale of potatoes, nor of his agency for various other potato growers; that, in so crediting such cheek to the account of Payne, plaintiff relied solely on the indorsement and credit of Payne; that, subsequently to the indorsement, deposit and crediting of the Burrough check, as aforesaid, Payne remitted to Kelley by checks drawn on said account for seven or eight cars of potatoes which he had sold for Kelley, such remittances including, among other cars, the three cars sold to Burrough; that said checks so'drawn by Payne to Kelley on the plaintiff bank were presented by Kelley to plaintiff for payment and were b3^ plaintiff paid; that thereafter the Burrough check was returned to plaintiff unpaid, resulting in an overdraft in the said account of Pa3me with plaintiff; that plaintiff made demand on Payne to make good the overdraft, ¡but made no demand on Kelley for nearly two months after the overdraft was created. That plaintiff did not notify Kelley or his associates that it would look to them for payment of the overdraft for said period of nearly two months; that, after demand was made on- Kelley, plaintiff accepted a payment of $100 from Burrough on said overdraft account. That the checks given by Payne to Kelley were accepted by Kelley in good faith in payment of amounts which he was entitled to receive from Pane; that said checks were presented by Kelley in good faith to plaintiff for payment, and were deliberately paid by plaintiff.”
Upon this finding of fact the court declared the law as follows:
“That, in the transaction between plaintiff and Payne, Payne was acting for himself, and not for Kelley and associates; that Kelley and associates are not liable to plaintiff as undisclosed principals of Payne; that, in accepting Burrough’s check and crediting it to Payne’s checking account, and in paying the checks of Payne drawn against it, plaintiff elected to rely solely on the credit of Payne; that the return of the Burrough check unpaid merely resulted in an overdraft of Payne’s account wdth plaintiff, for which overdraft plaintiff’s recourse is against Payne and Burrough alone.”
Upon this finding of fact and declaration of law, judgment was rendered in favor of Kelley and his tenants, all of whom were sued by the bank for the amount . of the check drawn by Burrough in payment of the three cars of potatoes sold by Payne to Burrough belonging to Kelley and his tenants, for which cheek the bank had given Payne credit, who remitted the proceeds to Kelley by check drawn upon the account of Payne, as agent, with the plaintiff bank, and this appeal is from that judgment.
Appellant insists, for the reversal of the judgment of the court below, that the declaration of law is not supported by the finding of fact made by the court, as it appears from the facts found by the court that Kelley and his tenants were the undisclosed principals of Payne, their agent, and received the benefits of the transaction by . which Payne procured the money from the plaintiff bank. It is insisted that, as Payne was the agent for an undisclosed principal who received the proceeds of the worthless check deposited by him, the principal should be held liable for the amount of this check as for money had and received to the account of the principal. The plaintiff bank asked findings to this effect, which the court-refused to make, and the plaintiff duly excepted to this refusal.
Payne and Burrough were made defendants to this suit, and judgment was recovered against them for the want of an answer.
It appears that, before the institution of this suit, Burrough had agreed with the plaintiff bank to repay the amount of his worthless check at the rate of $100 per week, and that, pursuant to this agreement, a payment of $100 was actually made, but, as Burrough defaulted in the subsequent payments, the bank brought this suit, and has recovered judgment against both Payne and Bur-rough for the amount of the overdraft, less the hundrcddollar credit.
Appellees insist that, the bank having elected to sue Burrough and Payne, cannot also pursue the inconsistent remedy of suing them. As we have concluded that the declaration of law above quoted is correct, we do not consider or decide whether the bank is barred from suing Kelley, having sued Kelley’s agent and Burrough.
It will be borne in mind that Payne employed his own method of making collections for the potatoes sold for the account of Kelley and his tenants and other-potato growers, and all money so received by Payne was placed to the credit of his account as agent. But Kelley was not Payne’s only principal, as all growers for whom Payne sold potatoes were also his principals, and there was no disclosure to the bank that Kelley was one of these. It was within the discretion of the bank to have accepted Burrough’s check for collection for Payne’s account, or to accept it as a cash deposit for that amount, and it elected to take the latter action. It was not induced to do so upon the faith of Kelley’s credit or Payne’s agency for Kelley, as Kelley was not known in the transaction. •
In the case of J. M. Robinson & Co. v. Bank of Pikeville, 146 Ky. 538, 142 S. W. 1065, it was held by the Court of Appeals of Kentucky (to quote a syllabus) that, “where a- bank receives, not for collection, but as so much money, a check, and places the amount to the credit of a customer, it assumes liability for such amount, to all persons to whom the customer may give checks.” The opinion in that case quoted from the case of First Nat. Bank of Cincinnati v. Burkhardt, 100 U. S. 686, 25 L. ed. 766, as follows:
“When a check on itself is offered to a bank as a deposit, the bank has the option to accept or reject it, or to receive it upon such conditions as may be agreed upon. If it be rejected, there is no room for any doubt or question between the parties. If, on the other hand, the check is offered as a deposit and received as a deposit, there being no fraud and the check genuine, the parties are no less bound and concluded than in the former case. Neither can disavow or repudiate what has been done. The case is simply one of an executed contract. There are the requisite parties, the requisite consideration, and the requisite concurrence and assent of the minds of those concerned.”
No question is made here about the good faith of the bank, or of that of Payne or Kelley. A loss has been sustained, which some innocent person must suffer, and the question is, Where must that loss fall?
In the case of First Nat. Bank of Detroit v. Burkham, 32 Mich. 328, the facts were that the drawees of a bill, the genuineness of which was not disputed, sought to recover from the payees the amount of the bill, which they had accepted and paid. The ground upon which the drawees sought to recover was that they had paid under a mistake of fact, which mistake consisted in their security from the drawer of the bill being fictitious, when they supposed it to be genuine and reliable. Upon these facts Judge Cooley,-speaking for the Supreme Court of Michigan, there said:
“It is no.t claimed in this case that, if the drawees had relied upon the responsibility of the drawer, and that had failed them, they would have had any ground of recovery against the payees. But we think it would be an exceedingly unsafe doctrine in commercial law, that one who has discounted a bill in good faith, and received in its payment the strongest possible assurance that it was drawn with proper authority, should afterwards hold the moneys subject to such a showing as the drawee might be able to make as to the influences operating upon his mind to induce him to make payment. The beauty and value of the rules governing commercial paper consist in their perfect certainty and reliability; they would be worse than useless if the ultimate responsibility for such paper, as between payee and drawee, both acting in good faith, could be made to depend on the motives which influenced the latter to honor the paper.
“The best view that can be taken of this case for the plaintiffs below is that there was a mutual mistake of fact under which the bank discounted and the drawees paid the bill. Conceding this, why should the drawees be allowed to transfer the loss, to the bank? Usually, when one of two parties equally innocent must suffer, the law leaves the loss where it has chanced to fall; but, in a case like this, if the law should assist either party on the ground of mutual mistake, it certainly should not be the drawees. This suit seeks to reverse the rule of commercial law, and transfer from the acceptor to the payee the responsibility which the former assumes by acceptance, and which the law leaves there.
“So far we have assumed that the bank discounted the bill in good faith and for value. We think this not open to question on the facts. The amount was put to the credit of the drawer, and drawn against. The previous transactions cannot affect this unquestionable fact.”
Appellant concedes that the transaction would be' a closed incident, and that the loss would be upon the bank, where it fell, but 'for the fact that Payne was the agent of Kelley and his tenants in selling the potatoes, and it is insisted that, inasmuch as Kelley and his tenants received the benefits of the transaction, they are liable as for money had and received.
It does not appear, however, that the law supports this contention under the facts as found by the, court.
In 2 O. J., chapter “Agency,” after stating the proposition that the principal must ratify the whole of the agent’s unauthorized act or not at all, and cannot accept its beneficial results and at the same time avoid its burdens, and that if the principal, with full knowledge of all the material facts, takes and retains the benefits of the ° unauthorized act of the agent, he thereby ratifies such • act, it is said, at § 115 of this chapter:
“Nor does the general rule apply where the principal is legally entitled to what he has received without assenting to the act of the agent, and he does not otherwise .give his approval to such act, or where the benefit received by the principal is merely incidental and arises out of a credit extended by a third person to the agent individually, or where the other party to the transaction did not deal with the agent as such, but in his individual capacity.” And further: “The mere fact that the principal has received or enjoyed the benefits of the unauthorized act will not amount to a ratification if he did so in ignorance of the facts. * * * A principal also has a right to receive money from an agent in payment of' a debt due from the latter, without inquiry as to the source from which it came, and, if it is in good faith so received and applied by the principal, its' subsequent retention, after he learns that it was procured through an unauthorized transaction entered into by the agent in his name, will not amount to a ratification of such transaction.”
Among the cases cited in the note to the text quoted is that of Martin v. Hickman, 64 Ark. 217, 41 S. W. 852. In that case Hi clonan sued Martin upon an alleged contract made by Clary as agent of Martin, whereby Hickman conveyed a town lot to Martin, it being alleged that Clary agreed that Martin would assume the payment of a certain note for $147 which Hickman owed. On conflicting testimony the jury found that Clary had made the agreement, and that finding was not disturbed on the appeal. It was denied by Martin that he had authorized that action, or had ratified it, but the jury also found against Martin on that contention. In holding* that the last finding* was not sustained by the testimony, although Martin had accepted the benefits of Clary’s trade, the court there said:
“It is well settled that ratification of the unauthorized acts of one who assumes to be an agent, in order to render them binding on the principal, must have been made with the knowledge of all material facts, and that ignorance of such facts will render an alleged ratification ineffectual and invalid. Lyons v. Tams, 11 Ark. 189; Combs v. Scott, 12 Allen (Mass.) 493; 1 Am. & Eng. Enc. Law (2 ed.), 1189, and cases cited.
“A principal will not be considered as having ratified an unauthorized act of his agent merely because he receives property and avails himself of the advantages derived from such act, when he did not learn that such agent had exceeded his authority until after he had sold the property, and after the circumstances were such as to put it beyond his power to return or restore the property. Bryant v. Moore, 26 Maine 84, 45 Am. Dec. 96; Thacher v. Pray, 113 Mass. 291, Am. Rep. 480; Brown v. Wright, 58 Ark. 20, 22 S. W. 1022, 21 L. R. A. 467. In this case the evidence is uncontradicted, not only that Martin had never authorized Clary to agree for him that he would assume and pay tile- $147 sued for, but also that he had no notice of such a claim on the part of Hickman until long* after he had sold the property received from Hickman. ’ ’
In Case v. Hammond Packing Co., 105 Mo. App. 168, 79 S. W. 732, the facts were that King was the agent of the packing* company, with authority to sell meats and to collect and remit the sales price to the packing company. The plaintiff, Case, was engaged in the banking business, and King opened an account with him in the name of “The Hammond Packing Company- — -W. A. King,” to the credit of which King deposited his individual funds and his collections for the packing -company, and against which he checked in his individual business. Prom time to time King drew checks on this account in his individual name, which he sent to the packing company as proceeds of meats sold by him. This mode of business continued for several months, until King finally drew two checks, aggregating $1,581, which overdrew the account that amount. , The bank demanded that the packing company make the overdraft good, upon the theory that it had received the benefit thereof from its agent. In other words, the suit was for money had and received, as in the instant ease. The packing company refused to pay, upon the ground that it had never authorized the opening of the account, and did not know that it had been opened until the bank demanded payment of the overdraft. The testimony showed that the agent King did not have any authority to represent the packing company, except to sell its meats and -collect and remit the proceeds of such sales.
So here, there was the same limitation upon Payne’s authority, and the cases are therefore identical, except that, in the packing company case, the bank knew who the agent’s principal was, a fact unknown to the appellant bank in the instant case, and except also that Payne did not have an account with appellant bank in his principal’s name, as did the agent King in the packing company case.
In holding that the packing company was not liable for this overdraft, although it had received the proceeds of the checks which produced it,- the court said: “Such agency (as King had) did not authorize him to open a bank account for defendant (the packing company), nor to borrow money for it. Nor did such agency confer an apparent authority on King, justifying plaintiff (the bank) in believing réal authority existed.” It was there further said:
“But it is said that defendant received King’s checks on the plaintiff bank, and must have known of the account. The cheeks were notice.to defendant that King had an account with plaintiff, but not that it had. Indeed, King’s individual checks could not lead one to suppose they were drawn on his principal’s account, for such checks would not authorize payment out of the principal’s money. Ihl v. Bank, 26 Mo. App. 129. There was nothing shown from which it can be inferred that defendant ratified King’s act in overdrawing. As has been already stated, the defendant did not know that King had opened an account in its name. It did not know that the money which it received was an overdraft on such account. It received and accepted the money as money due from King, which he had collected from customers. Money is a current fund, which any one, without notice, has a right to.receive in good faith in payment of a debt, without inquiry into the source from which it comes; and the person so receiving it cannot be compelled to restore it to him who was the true owner. Stephens v. Board of Education, 79 N. Y. 183, 35 Am. Rep. 511; Hatch v. Bank, 147 N. Y. 184, 41 N. E. 403; Justh v. Bank, 56 N. Y. 478; Smith v. Bank, 107 Iowa 620, 78 N. W. 238. But it is said by plaintiff that defendant received and kept the money represented by the overdraft. That fact does not create a liability against defendant. If money due a principal from his agent is obtained by such agent by the unauthorized use of the principal’s name, and'paid over to the principal, who receives it in good faith, without notice, he is not liable to the party from whom the agent got the money. The fact that he keeps the money after being informed of how the agent obtained it is not a ratification. Thacher v. Pray, 113 Mass. 291, 18 Am. Rep. 480; Baldwin v. Burrows, 47 N. Y. 212; Gulick v. Grover, 33 N. J. Law 463, 97 Am. Dec. 728; Bohart v. Oberne, 36 Kan. 284, 13 Pac. 388; Pennsylvania Co. v. Dandridge, 8 Gill & J. 323, 29 Am. Dec. 543; Lime Rock Bank v. Plimpton, 17 Pick. 159, 28 Am. Dec. 286.”
We are not required to approve all that was there said to find authority in that case for denying appellant bank the right to recover from Kelley.
Another case very similar in principle to the instant case is that of First Nat. Bank of Owenton v. Sidebottom, 147 Ky. 690, 145 S. W. 404. We do not review the decision of the Court of Appeals of Kentucky in that case, as it would unduly lengthen this opinion to do so, but we quote a syllabus which reads as follows:
“A deputy sheriff, having an account with a bank, drew his checks on other banks payable to it, and gave to the sheriff two checks equal in amount to the checks so drawn, and, on presentation by the sheriff’s bank, they were paid before one of the cheeks drawn by the deputy was returned not paid for want of funds. Held, in the absence of any agreement on the -part of the sheriff, that, if the checks drawn -by his deputy were not paid he would refund to the bank the money paid to him, the bank could not recover; the fact that the drawer of the checks was a deputy of the defendant not conferring any greater rights on the bank.”
As bearing upon this question and supporting the view that a bank, which permits an unauthorized agent to overdraw his account, cannot recover the amount of the overdraft from the principal, upon a mere showing that the principal received the proceeds of the overdraft, where, when demand for restitution is made, the principal cannot be placed in statu quo, see the following cases: Merchants’ Nat. Bank of Peoria v. Nichols & Shepard Co., 223 Ill. 41, 7. L. R. A. (N. S.) 752, 79 N. E. 38; Guaranty Bank & Trust Co. v. Beaumont, etc. (Tes. Civ. App.), 218 S. W. 638; Sanborn v. First Nat. Bank, 115 Mo. App. 50, 90 S. W. 1033.
Here Payne employed his own means of collecting and remitting the proceeds of potatoes sold by him. Kelley had no control over Payne’s account with the bank, and could only credit Payne’s account with the Checks drawn in his favor against it. Kelley was not advised of the overdraft until two months thereafter, during which time the potatoes had, no doubt, been eaten or planted or otherwise consumed, and the status quo could not be restored.
Some innocent person must suffer, and, as the bank’s eleotion to treat as a cash deposit the check from Payne by Burrough, instead of receiving it for collection, as it might have done, caused the loss to fall upon it, the loss must remain there. This was the judgment of the court below, and it will therefore be affirmed. | [
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Humphreys, J.
Mrs. Margaret Valentine, a practicing attorney in Van Burén, Arkansas, was appointed guardian by the probate court of Crawford county for Mrs. Annie Mcllvaigh in March, 1941, on petition of some of her relatives in a proceeding to declare her incompetent to attend to her business affairs.
After qualifying as guardian, she made an effort to ascertain whether Mrs. Annie Mcllvaigh had acquired building and loan stock from her brother, M. F. Winn, under his will and, if so, what disposition had been made of it. Her brother died testate in February, 1939. Her investigation led her to believe that Mrs. Annie Mc-Ilvaigh had received under the will a building and loan certificate of stock for $1,000 in some building and loan association in Arkansas, but she could find no record showing that she had received such a certificate or what disposition had been made of it. Mrs. Annie Mcllvaigh remembered nothing about getting the certificate or cashing it.
Miss Laura Haines nursed Mrs. Mcllvaigh’s brother in his last illness, and remained in the home quite a while after the brother died to look after the welfare of Mrs. Mcllvaigh and to assist her in her business matters. Miss Haines refused to give Mrs. Valentine any information about the certificate of stock or the disposition which had been made of it.
So, also, did G. A. Suggs who had been partly reared by Mrs. Mcllvaigh while in his father’s home and who assisted Mrs. Mcllvaigh. in looking after her business affairs after her brother died.
Mrs. Margaret Valentine, guardian aforesaid, contacted and inquired of G. A. Suggs concerning the stock certificate and what disposition had been made of it and he denied any knowledge of the certificate or what had become of it.
Mrs. Margaret Valentine then communicated with several building and loan associations in Arkansas and the bank in Van Burén where sbu had transacted her business and discovered that the building and loan certificate had been issued by the Peoples Building & Loan Association of Little Rock, Arkansas, and that application had been made by Mrs. Mcllvaigh on April 16, 1940, to cash said certificate and that the money for same was paid to her at the Peoples Bank & Trust Company in Van Burén, Arkansas, on May 17, 1940, in $20 bills and that on the same date G. A. Suggs had paid $975 in cash, balance of the purchase money, for a home he had theretofore contracted to buy.
Suit was then brought by the guardian in the chancery court of Crawford county against appellants alleging in substance that G. A. Suggs obtained the proceeds of the 'building and loan certificate and an additional $100 which she had saved for burial expenses from Mrs. Mcllvaigh through undue influence growing out of their close relationship at a time when she was sick in mind and body and not able to resist his entreaties, and that after wrongfully getting the money without any consideration whatever he used same to purchase and repair a home for himself and wife, Vera Suggs, in Crawford county, described as follows:
“The south half of the S'WVL of the SE% of section 13, in township nine north, range 32 west, except a tract sold to Addie L. O’Bryan and to the church, 75 by 115 feet, beginning at a point 30' feet north of the SW corner of said tract, thence east 225 feet, thence north 115 feet, thence west 75 feet, thence south 65 feet, thence west 150 feet, thence south 50 feet to the place of beginning.
“Also, part of the NW% of the NE% of section 24, in township 9 north, range 32 west, beginning at a corner rock at the NE corner of said school lot, thence east 15% poles, thence south 140 feet, thence west 15% poles, thence north 140 feet to place of beginning.”
The prayer of the complaint was that a lien be declared on said lands for the amount thus wrongfully obtained from Mrs. Annie Mcllvaigh without consideration and with which he purchased said lands and the sale thereof to satisfy said lien.
Appellants filed an answer denying each and every allegation of appellee’s complaint.
The prayer of the answer was that appellee take nothing by reason of her complaint, and that appellants have judgment for their costs.
The cause was submitted to the court upon the pleadings, testimony and exhibits resulting in the finding of the issues for appellee and a decree adjudging a lien upon the- real estate for $1,075 with interest thereon at the rate of six per cent, per annum from the 17th day of May, 1940, until paid and all costs laid out and expended by appellee, and for an order of sale of said real estate to satisfy the lien, from which is this appeal.
The record reflects without dispute the facts detailed above leading up to the institution of the suit, and also that G. A. Suggs was present when Mrs. Annie Mcllvaigh collected $1,000 in $20 bills oh the building and loan certificate of stock, and that he witnessed her signature to the papers she was required to sign in order to collect the money, and, also, that he afterwards got $975 of the money and paid his vendor the balance of the purchase money for the lands involved in this suit, and that he afterwards got $100 from her to put a new roof on the residence located on the lands, which he and his wife, Vera Suggs, now occupy as their home; that he had paid $25 down when he contracted for the lands, and that the money he got from Mrs. Annie Mcllvaigh was used to pay off the balance of the purchase money due thereon and that he afterwards used the additional $100 he got from her to put a new roof on the house. The record also reflects without dispute that Mrs. Annie Mcllvaigh was appointed as executor of her brother’s will and attempted to administer the estate with the aid of Miss Haines who remained with her after her brother died, and also with the assistance of G. A. Suggs. The record also reflects without dispute that Mrs. Annie Mcllvaigh was feeble in mind and body and required much assistance in getting around from place to place on account of her physical ailments. The record also reflects that on account of her inability to properly look after her estate the probate court, upon application of some of her relatives, appointed Mrs. Margaret Valentine as her guardian.
The record also reflects that both Miss Haines and appellant, G. A. Suggs, denied any knowledge of the existence of the building and loan certificate or what disposition was made of it. The record reflects that G. A. Suggs admitted that he had denied any knowledge relative to the certificate of the stock, or the collection thereof, to Mrs. Margaret Valentine, but explained that his reason for his denial was that Mrs. Annie Mcllvaigh had requested him to never tell that he had such knowl edge or tliat she had let him have any of the money collected on the certificate. He claimed that Mrs. Mcllvaigh had made a present of the money to him with the inhibition never to tell.any one that she had done so.
The record reflects that he admitted signing papers for her to collect the certificate of stock and using- the money in the purchase of the lands in question.
The record also reflects that he had great influence over her having been reared by her from the age of seven years until he married.
After Miss Haines left and went to Oklahoma some question came up as to where Mrs. Annie Mellvaigh would live and G. A. Suggs suggested that she go to live with the Thurmans and when Mrs. Margaret Valentine told him that perhaps she would not be willing to live with the Thurmans he said to her that he could make Mrs. Annie Mellvaigh do anything- he wanted to, and the result was that she did go to live with the Thurmans for a while.
Much evidence was introduced which conflicted as to the state of Mrs. Annie Mellvaigh’s mind, but all admitted that she was very feeble in body and had to be assisted when she went from place to place. According to the record, Mrs. Annie Mellvaigh became weaker in both mind and body until her condition was such that the probate court appointed Mrs. Margaret Valentine as her guardian, on account of her incapacity to transact business.
The trial court, after hearing- all the conflicting evidence as well as all the admitted facts, found that in April or May of 1940, Mrs. Annie Mellvaigh was so feeble in mind and body that she was incapable of making a present of the proceeds of the building and loan certificate to G. A. Suggs, and that he obtained the proceeds thereof, as well as the $100 she had saved to pay her funeral expenses, through his undue influence. ■
We are unable to say, after a very careful reading of all the testimony, that the court erred in so finding. In fact, we think the finding was in accordance with the great weight of the evidence.
This court said in the case of Cain v. Mitchell, 179 Ark. 556, 17 S. W. 2d 282, that: “A. D. Cain seeks to reverse the decree setting aside the deeds to certain lands from his mother to himself which were executed in December, 1921. The law relating to transactions of this sort is well settled in this state. Mental weakness, although not to the extent of incapacity to execute a deed, may ‘render a person more susceptible of fraud, duress, or undue influence, and, when coupled with any of them, or even with unfairness, such as great inadequacy of consideration, may make a contract voidable, when neither such weakness nor any of these other things alone would do so.’ Pledger v. Birkhead, 156 Ark. 443, 246 S. W. 510, and cases cited; and West v. Whittle, 84 Ark. 490, 106 S. W. 955. See, also, Phillips v. Phillips, 173 Ark. 1, 291 S. W. 802; Campbell v. Lux, 146 Ark. 397, 225 S. W. 653. In the case last cited the court said that gross inadequacy of price, although not controlling, is a circumstance to be given much weight in deciding an issue of this kind.”
Our interpretation of the record is that appellant, G. A. Suggs, procured through undue influence over Mrs. Annie Mcllvaigh practically all the money she had at a time when she was in distress on account of the death of her brother and at a time when she was feeble in mind and body and at a time when she was incapable of pro-, iecting herself against his importunities and at a time when she did not even know or realize what she was doing. She had forgotten that she had the stock and that she ever collected anything for it. It is admitted by him that he had great influence over her and he also admitted that he kept the transaction a secret from her relatives and friends and that when approached or contacted concerning same he falsified to the extent of saying that he knew nothing about the stock or the disposition made of same, and vehemently denied that he had ever gotten any money from her. It is true that in the trial he retracted all these denials and admitted getting the money. He justified his denials only on the ground that she had exacted from him the promise that he would never tell anyone about the transaction. His conduct throughout very clearly indicates that he imposed upon an old lady, past seventy years of age, feeble in mind and body, in getting practically all of her money without any consideration, leaving her to drift from place to place more or less a dependent upon the generosity of others.
Appellants also insist upon a reversal of the decree because they say a hypothetical question propounded to Dr. H. W. Savery assumed facts that were not in evidence and omitted therefrom essential and undisputed facts in evidence.
The hypothetical question did not reflect the evidence verbatim, but, after a careful reading thereof and the very lengthy hypothetical question, we think that it reflected substantially all the evidence in the case. The test laid down by this court as to the correctness of a hypothetical question is that it must fairly reflect the evidence. Taylor v. MoClintock, 87 Ark. 243, 112 S. W. 405.
The decree is, therefore, in all things affirmed. | [
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Mehaeey, J.
Suit was brought in the Chicot Chancery Court by the appellant against the appellees, who were the stockholders of the Holland-Delta Company, a corporation organized under the laws of the State of Delaware, on December 14, 1915, with a capital stock of $500,000, divided into shares of $100 each. The capital stock was afterwards increased to $1,000,000.
The agreement of counsel contains the following paragraph: “That the sole business of Holland-Delta Company was the operation of two large cotton plantations, one in East Carroll Parish, ■ Louisiana, and one in Chicot 'County, Arkansas, and the operation of la plantation store in connection with each one of the same for the purpose of supplying the tenants on said plantations, and successfully conducting said farming operations, and the making of all contracts necessary for the financing .and operation of said plantations. That at all times during its business existence it was properly qualified to do business in the States of Arkansas and Louisiana, but never at any time did it file a copy of its charter or an abstract thereof with the 'Secretary, of State of Tennessee or any official of the State of Tennessee, and did not undertake in any way to comply with the foreign corporation laws of the State of Tennessee. That W. P. Markle, who was president of the company from its organization, lived in Memphis, Tennessee, and had an office there. That said Holland-Delta Company maintained an office at all times at 1315 Bank of Commerce Building, Memphis, Tennessee. That said Holland-Delta Company paid the rent for said office, and its name appeared on the door of the same. That the meetings of the .stockholders and directors of this company were held in this office, and that from this office W. P. Markle, a.s president and manager, purchased a part of the merchandise and supplies used by Holland-Delta Company in its farming operations in Arkansas and Louisiana, and paid most of the bills for the same, using remittance sheets bearing the name of Holland-Delta Company, and giving its address 1315 Bank of Commerce Building, Memphis, Tennessee. That the said W. P. Markle used letterheads and the employees used letter heads in their correspondence for the Holland-Delta Company bearing the same name and addres-s. That the ones used (by .the employees on the plantation bore the plantation address. That the general books of the company were kept in said office in Memphis, and the plantation and store books were kept at the plantation.”
It is stipulated by counsel that Holland-Delta 'Company filed an answer in the courts in Tennessee, admitting that it was a foreign corporation doing- business in Tennessee. That is, it filed an answer admitting the allegations in the complaint to the effect that it was a foreign corporation doing business in Tennessee.
The American Trust Company had obtained judgment in the Arkansas courts, in which there was a balance due of -something more than $22,000. The Holl-andDelta Company became bankrupt, owing large sums of money. This suit is brought to enforce liability against the stockholders, who are made defendants, for the debt of the corporation.
It is claimed by appellant that the stockholders are liable for the debts of the company under the Tennessee statute, which prohibits foreign corporations doing business in the State without -complying with the Tennessee laws, and the courts of Tennessee hold that, when a foreign corporation does business in Tennessee in violation of tluis statute, the stockholders become liable for the debts of the corporation.
There is no dispute about the Holland-Delta Company be-ing a foreign corporation. It is agreed that it did not comply with the laws of the State of Tennessee; that it maintained an office in Memphis*, Tennessee, and that the appellees are stockholders of said corporation.
There is no controversy about the claim of the appellant. It is admitted that the Holland-Delta Company is indebted to the appellant in the amount -sued for. The only question to be determined by this court is whether that indebtedness of the.Holland-Delta Company can be enforced against the -stockholders of said corporation in the courts of Arkansas.
Section 2546 of Shannon’s Code of Tennessee reads as follows:
“Each and every corporation created or organized under or by virtue of any government other1 than that of this State, for any purpose whatever, desiring to own. property or carry on any business in this State, of any kind or character, shall first file in the office of the Secretary of State a copy of its charter. It shall be sufficient to authenticate .such copies so filed by the certificate of the secretary or secretaries of such corporations and by attaching thereto the corporate seal.”
Section 2547 of Shannon’s Code provides for a penalty or fine for any foreign corporation doing business without complying with the laws with reference to foreign corporations filing a copy of their charter, etc.
The courts of Tennessee hold that, whenever a foreign corporation does business in the 'State of Tennessee without having complied with the laws' authorizing foreign corporations to do business in the State, the stockholders of such corporation shall be liable for its debts. As to the liability of stockholders for the debts of the corporation, the authorities are not in harmony. It is not claimed here that the stockholders .owed the debt themselves, but the contention is that the corporation owed the debts, and that, because it did business in Tennessee without authority, the stockholders thereby became liable for the debts of the corporation, and the Tennessee courts so hold.
We do not think that it is necessary to decide whether the Holland-Delta Company was doing business in the State of Tennessee or not, because the settled rule in Arkansas is that the stockholders are not liable for the debts of the corporation.
“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. ’ ’ Bayington v. Van Etten, 62 Ark. 63, 35 S. W. 622.
“It was not important in this case to show that the Wichita Coal & Material Company had complied with the laws of the State of Arkansas authorizing foreign corporations to do business here, although the proof was probably sufficient to show that it had, for the reason that the mortgage and note sued on were executed to said hank in the State of Kansas, the domicile of both corporations, where the money was borrowed; nor would the doing of business in this State by a foreign corporation that had not complied with our laws, prescribing condition^ upon, which such corporations may do business here, have the effect to dissolve such corporation and render said corporation in effect a partnership and its officers partners as to such business done within the State, as was held by the lower court.” Nat. Bk. of Wichita v. Spot Cash Coal Co., 98 Ark. 597, 136 S. W. 953.
We deem it unnecessary to refer to authorities of other States, because, as we have said, the rule is settled in Arkansas that the stockholders are not.liable for the debts of the corporation.
Appellánt contends that the liability is a contractual one. We think la complete answer to this is that this court has held that the stockholders are not liable for the debts of a corporation, and that the Arkansas cases referred to by appellant in its reply brief are cases where the statute itself expressly makes the persons liable. Our statute provides:
“If the president or secretary of any such corporation shall neglect or refuse to comply with the provisions of § 848, and to perform the duties required of them respectively, the persons so neglecting or refusing shall jointly and severally be liable to an action founded on this statute, for all debts of such corporation contracted during the period of any such-neglect or refusal.”
It will thus fee seen that these, persons are liable because the statute expressly makes them so. We know of no statute, either in Arkansas or Tennessee, that malíes the stockholders liable for the debts of the corporation simply because the corporation does business in the State without complying with the laws by filing their charter, etc. If the statute in Tennessee made the stockholders liable for the -debts -of the corporation, this court might then hold, as it did with reference to the president and secretary, that the debt was contractual, but we have no such case here. The only contention here is that the corporation did business in Tennessee in violation of its law and that, for that reason, the stockholders are liable, and this court has decided adversely to the contention of appellant on this question.
Since we hold that the liability of the stockholders for debts of a corporation will not be enforced in the courts of Arkansas, it become unnecessary to determine whether the corporation was -doing business in Tennessee or' not, because, whether it was or not, we hold that the stockholders did not become liable for the corporation debts, and the case is therefore affirmed. | [
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Kirby, J.
This appeal challenges the right of Lake Township, in Greene County, to be detached and exempt from the operation of the law in an original unit stock-law district, to which it was added upon petition and election, by order of the Greene County Court, duly made.
The case on appeal from the county court, where the right was denied, was heard upon the following .stipulations of fact:
“It is hereby stipulated by and between the parties hereto that, in the year 1916, Clark, Union and St. Fran eis townships were by proper order of the Greene County Court formed into a stock district under the provision of the act of General Assembly of the State of Arkansas, approved March 19, 1915. That in the year 1924 Lake Township, which adjoined the unit district above mentioned, on the east, under proper petition and orders of the county court of Greene County, Arkansas, under an election as required by law, was attached to and became a part of said unit under the provisions of act 156 of Acts 1915, as amended by act No. 258, year 1919.
“The only question for determination is whether now said Lake Township may petition out from under the operation of the stock law, under the provision of § 331, C. &M. Digest.”
No other evidence was offered in the 'circuit court, and from the judgment allowing the township to be detached from the district and exempt from the operation of the stock law this appeal is prosecuted.
Appellants insist that there is no provision of the law warranting such separation from the district, and appellees that the action was rightfully taken under the provisions of % 331, C. & M. Digest of the Statutes.
The original unit district was formed in 1916, under the provisions of the said áct of the Legislature No. 156 of the Acts of 1915, as amended by act No. 258 of 1919, and in 1924 Lake Township was duly attached thereto.
Section 10 of the said act No. 156 (§ 331, C. & M. Digest of the Statutes) provides for the formation of three or more townships into a unit or district for restraining any stock, as enumerated in the act, from running at large after the organization shall have been perfacted, and % 330, C. & M. Digest, provides “any other township, or any group of townships, that would be a contiguous whole to the unit thus formed, may be attached to and become a part of said unit in the same way and manner as herein provided for in the first instance, by merely stating in the petition, in addition to the other requirements, that the petitioners wish their township or townships attached to said unit, naming the townships therein.”
It is insisted that the provisions of § 331, relating to the exemption of any township from the operation of the stock law in the district organized, only applies and has effect to allow such exemption made of a township or territory proposed to he included in the original unit or district, which action must be taken before the completion or perfection thereof, it conferring' no right upon a single township, duly attached .to the original unit district bv the method provided, to be detached and exempt thereafter from the provisions of the stock law operative in such. clistjiTKyfc
In O’Brien v. Root, 167 Ark. 119, 266 S. W. 931, this court had under consideration a like proceeding under the provisions of a special act applicable to White County alone, containing provisions like ■§ 331, C. & M. Digest, except the special act only permitted exemption for a period of not more than 5 years. That case was first before the court and reported in 164 Ark. 156, 261 S. W. 291, where the court construed the provisions of the act relative to the exemption of a township, and held that there was no intention to confer the right of exemption to be exercised after the law went into effect on January 1 of the year following the election, holding, in other words,, that the exemption must be applied for and effected before the district was perfected and the law became effective and operative therein. The court said there:
“The reason for placing this limitation upon the exercise of the privilege of exempting townships is obvious, for such a law would operate with reasonable permanence, so as to avoid great expense and inconvenience to farmers and stock raisers living in the territory, and it would not be good policy to permit frequent changes dependent upon the changing will of the majority. ’ ’
It does not appear, from the provisions of said § 331, that there was any intention of the lawmakers to confer a right upon a single township that had been regularly attached to an original unit or district, to separate itself from such district and be relieved and exempt from the operation of the stock laws therein after becoming attached thereto, and we find no other provisions of the law authorizing such detachment.
The lawmakers doubtless had in mind that the public welfare would be best promoted by the organization of the territory into districts, for preventing the running at large of stock, when the majority of the electors in the territory affected- concluded that it should be done, in order to avoid the great expense and inconvenience to the farmers and stock raisers living in the territory, of fencing to prevent damage from the stock- running at large, and made no provision for the exemption of such territory from the provisions of the stock law after the perfection of the organization of the district and the annexation of the territory thereto.
It follows that the court erred in holding otherwise, and the judgment is, reversed, and the cause dismissed. | [
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George Rose Smith, Justice.
The appellants and the appellees are neighbors whose hack yards abut opposite sides of Bray street in the city of Hot Springs. This suit was brought by Mr. and Mrs. Campbell to compel the appellee-defendants to remove encroachments that obstruct the street. The chancellor dismissed the complaint for want of equity, finding that the city council had not exercised its power to open the street for travel and that the Campbells had not proved that they have suffered special damages differing from those sustained by the general public. We hold the first finding to be immaterial and the second to be against the weight of the proof.
That part of Bray now in dispute was platted, dedicated, and accepted by the city as a cul-de-sac, 30 feet wide, that runs south from Avery street for 207 feet, where it dead ends. The several appellees own the four houses on the west side of the street, all facing Mountain View street to the west. The Oaiupbells own the southernmost two lots on the east side of Bray. Their house faces Campbell street on the east.
According to Campbell’s testimony, Bray street was at least traversable until 12 or 15 years before the trial. Since then the owners of the four lots on the west side of Bray have encroached on the street and affected its grade. At the north end of the block an L-shaped latticework wall made of concrete blocks extends across the street from the Goslee lot and for some distance down the east side. (The appellee Goslee’s house, the northernmost of the four, also encroaches on the street for six to eight feet, but the Campbells do not ask that it be removed.) Behind the next house, owned by the appellee Almstead, rocks have been pushed into the street to raise its grade and thereby fend off surface water. Farther south a stone wall extends east from one of the two Ford lots and obstructs the street to an extent not precisely shown by the testimony. Owing to the narrowness of Bray street it does not appear that the encroachments are off what will be the traveled part of the street, when opened.
Turning to the chancellor’s first finding, we think it to be immaterial that the city has not seen fit to open and develop this part of Bray street. The city cannot divert a dedicated street to an unauthorized use, either public or private, to the special damage of abutting owners. That point was fully considered in Osceola v. Haynie, 147 Ark. 290, 227 S. W. 407 (1927), where we said:
“In tbe case of Packet Co. v. Sorrels, 50 Ark. 473, it was said that authorities of a town or city can not lawfully appropriate or divert a street to uses and purposes foreign to that for which it was dedicated; and that it is not within the power of the Legislature to authorize its appropriation to private use nor to public purposes except in the manner in which private property can be taken for the use of the public under the right of eminent domain. The city had no right to close the street. Upon the contrary, it was the duty of the city to keep the street open. C. & M. Digest, §§ 7570 and 7607; Little Rock v. Jeuryens, 133 Ark. 126.
“The plaintiffs here have shown a damage in addition to that sustained by the public. Their property has been damaged in value, and under numerous decisions of this court they are entitled to an injunction to remove the nuisance. Dickinson v. Ark. City Imp. Co., 77 Ark. 570; Matthews v. Bloodworth, 111 Ark. 549; Wellborn v. Davies, 40 Ark. 83; Packet Co. v. Sorrels, 50 Ark. 474; Texarkana v. Leach, 66 Ark. 42; Davies v. Epstein, 77 Ark. 227; Stoutemeyer v. Sharp, 89 Ark. 177; Draper v. Mackey, 35 Ark. 497.”
Needless to say, what the city cannot do directly by affirmative action it cannot do indirectly by passive inaction.
On this point the appellees argue that Bray street is so scarred by gullies running southward that the cost of making it even passable would be prohibitive. There are two pertinent comments to be made about that argument. First, no one contradicts 'Campbell’s statement that the street was formerly used. "Whatever gullies now exist appear to have been caused by the appellees ’ pur-prestures, which were intended to deflect the flow of surface water. The appellees cannot equitably profit by an obstacle of their own making.
Secondly, Campbell is not depending on the city council to develop the street. For several years he has had on hand a supply of drain tile to be used in the street. He testified that no additional fill would be needed. “With the amount of material that’s already been put in there, a wall torn down, and a gentle slope from the north, it would make a very cozy street. It could be done in a half a day’s time with a bulldozer.” If, after the appellees have removed the encroachments, Campbell wishes to improve the street at his own expense, we know of no rule of law to prevent him from doing so, as long as he does not alter the original grade of the street to the detriment of his neighbors.
Finally, we cannot sustain the chancellor’s finding that the Campbells have not sustained special damage entitling them to relief. The great weight of the proof is the other way round. Campbell testified that his lots would be worth 50 percent more if Bray street were opened up. Even the appellee G-oslee, a real estate dealer who owns one of the lots on the west side of Bray, admitted on cross-examination that a back entrance to the Campbell property would add to its value.
Furthermore, the destruction of one means of access to a landowner’s property meets the test of special damages. ‘ ‘ The' fact that appellant had other entrances to his lot would not keep him from suffering special and peculiar damages if his entrance by way of the alley in question were destroyed. The deprivation of any entrance to or exit from one’s property is a special or peculiar damage to it not suffered by the public in general.” Langford v. Griffin, 179 Ark. 574, 17 S. W. (2d) 296 (1929).
Reversed and remanded for the entry of a decree in harmony with this opinion.
HaRbis, C. J., and Jones, J., would affirm the decree. | [
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MoHaney, J.
Appellees brought this action against appellants in the Lake City District of Craighead County, to recover the value of 24 hogs lost in two separate shipments from Monette, Arkansas, consigned to YeachAndrews Commission Company, National Stock Yards, East St. Louis, Illinois, of the value of $239.50.- One' of the shipments, containing 96 hogs, went out in a car with cattle and was billed January 31, 1925. The other contained 163 hogs, and was billed February 23. The first car was short 10 hogs and the second 14 hogs, on unloading at destination. Damage was laid, based on the average value of the remaining hogs in each shipment. The case was tried to a jury, which resulted in a verdict and judgment for the sum claimed against appellants, and wherefore this appeal.
Since the shipments in question were made, appellant, St. Lonis-San Francisco Bailway Company, has acquired all the property of the Jonesboro, Lake City & Eastern Railroad Company, and separate briefs have been filed by it and the Missouri Pacific Railroad Company. The Frisco was made a party to this action, for the reason it had acquired said property. It had nothing to do with these shipments át the time they originated, and it first contends that it did not succeed to any of the liabilities of the Jonesboro, Lake City & Eastern, and, since it did not handle the shipment, it is not liable. The statute, § 8512, is against this contention.
The only serious contention, and this is made by all the appellants, is that there is not sufficient evidence— in fact, it is insisted that there is no evidence that the number of hogs delivered for shipment was not delivered to the consignee. In this contention we cannot agree with appellants. Both appellees testified that the correct number of hogs was loaded, and the bills of lading call for such numbers. Mr. McDonald accompanied these cars to their destination, except that he got off the train at Dupo, about 10 miles out, and wont in on a street car directly to the stock yards. He testifies positively that only 149 hogs were delivered from the car containing 163, and that this car was therefore 14 short, and that only 86 were delivered from the other car, or 10 short. He testified that the hogs had been unloaded into the consignee’s pens when he .arrived; that he counted the hogs immediately, and they were short in the number stated. We think this sufficient evidence to take the case to the jury on the question of the shortage, and the further fact that the consignee only paid for 86 in one car and 149 in the other is a circumstance tending’ to show the shortage, from all of which the jury has found ag’ainst appellants, and we cannot say, under the settled rules of this court, that there was no substantial evidence to support the verdict.
On the question of damages, counsel for the Frisco say no damages are proved. While it would have been better to have established the market value of such hogs at that time and place, according to the usual methods of making such proof, yet we think it sufficiently appears that appellees received the market value for the hogs delivered. It was also shown that it is the custom in settling claims to base the settlement on the average weight and price of those delivered.
It is finally insisted by the Missouri Pacific that the court erred in overruling’ its demurrer to the jurisdiction of the court. This assignment is based on the fact that it owns no line of railroad in the Lake City District of Craighead County, and that said district is a separate county, so far as concerns process and jurisdiction of the circuit court. While this is true, it was jointly sued with the Jonesboro, Lake City & Eastern, which did have a line of railroad in said district, and it was therefore properly served, and the court had jurisdiction under § 1176, C. & M. Digest, which is as follows: “Every other action may be brought in any county in which the defendant, or one of several defendants, resides, or is summoned.” And this applies to corporations as well as individuals. 27 B. C. L., page 804, § 25.
No error appearing, the judgment is affirmed. | [
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J. Feed Jones, Justice.
B. A. Adkins filed suit in the White County Circuit Court against 'Sam Kelley, doing business as Kelley’s Grill. The suit was for $25,-000.00 compensatory and $25,000.00 punitive damages for personal injuries alleged by Adkins as a result of injuries he sustained in an altercation with Kelley’s employees in the kitchen of .Kelley’s Grill. A jury trial resulted in. a verdict upon which judgment was entered in favor of Adkins for $300.00 compensatory damage and nothing for punitive damage, and Adkins has appealed. The only question presented to us is whether the trial court erred in instructing the jury. Appellant contends that there was such error, and he relies on the following points for reversal:
“In modifying plaintiff’s (appellant’s) instruction No. 7- on damages and in giving the court’s modified version:
“The trial court erred in holding as a matter of law that AMI 2202 was not a measure or element of damages, rather a factor in determining other elements.
“The trial court erred in modifying AMI 2208 to limit, as a matter of law this element or measure of damag'es to any embarrassment or mental anguish suffered as a result of any scars and disfigurement or visible results of the injury.”
The facts very briefly are these: The appellant, Adkins, had been a regular customer in taking meals at appellee Kelley’s Grill. On the evening of August 7, 1963, appellant met some invited guests at Kelley’s Grill for dinner. A waitress at the Grill took their orders and when the food was not served after a considerable period of time, they were advised by the waitress, upon inquiry, that the cooks in the kitchen of the Grill had refused to prepare their orders. Appellee, Kelley, was away on. business and bad left Ms brother in charge of the cafe. The brother was temporarily off the premises, so appellant went into the kitchen to determine why the cooks had refused to prepare the food. An altercation ensued and one of the cooks struck appellant with a large knife or meat cleaver, resulting in a rather extensive laceration, about eight inches in length, extending along the left side of appellant’s neck from up in the hair line near the occipital protuberance to neiar the left clavicle.
At the trial of the case, Dr. T. L. Adair, who treated Mr. Adkins, testified that Mr. Adkins has some residual limitation of motion in his neck because of the injury, and as to the specific cause of this, Dr. Adair testified as follows:
“Q. What, doctor, medically would be the cause of that?
A. Probably scar formation, or shortening. Atrophy from disuse and shortening, and scar.
Q. If it were scar formation, would it be that that is visible, or that beneath the skin?
A. It would probably be the scar to ‘ the muscle fascia, or sheath, muscle sheath and fascia. The skin might limit him some. I meian it might limit him, some, but I don’t think the scar is big enough for that.”
The trial court refused to give appellant’s requested instruction No. 7, on the measure of damages, as offered by appellant, but did give it as modified by the court, and this is the error complained of by the appellant on tMs appeal.
Appellant’s requested instruction No. 7 followed the general instructions laid down in AMI 2201 in .setting out the elements of damage to be considered. It followed AMI 2202 (B) in paragraph 1 as to the nature, extent, duration, and permanency of any injury, and followed AMI 2208 in paragraph 6 as to scars, disfigurement, and visible results of injury.
Appellant requested instruction No. 7, as follows:
“If you find for the plaintiff, you must then.fix the amount of money which you find' will reasonably and fairly compensate him for any of the following elements of damages:
1. The nature, extent, duration and permanency of the injury.
2. The reasonable expense of any necessary medical care, treatment and services received.
3. Any pain, suffering and mental anguish experienced in the past and reasonably certain to be experienced in the future.
4. The value of any earnings lost or reasonably certain to be lost in the future.
5. The present value of any loss of earning capacity or ability to earn, in the future.
6. Any scars and disfigurement or visible results of his injury.”
The trial court gave appellant’s instruction No. 7 in a modified form, as follows:
“If you find for the plaintiff, you must then fix the amount of money which you find will reasonably and fairly compensate him for any of the following elements of damages:
1. The reasonable expense of any necessary medical care, treatment and services received.
2. Any pain, suffering and mental anguish experienced in the past and reasonably certain to be experienced in the future.
3. The value of any earnings lost.
4. The present value of any loss of earning capacity or ability to earn in the future.
5. Any embarrassment or mental anguish suffered by reason of any scars and disfigurements or visible results of his injury.
In arriving at these amounts, you may take into consideration the nature, extent, duration and permanency of his injuries.
Whether any of these things have been proved is for you to decide.”
Thus, we see by modifying paragraph 1 of the instructions requested by the appellant (AMI 2202), the trial court eliminated the jury’s consideration of “nature, extent, duration and permanency of the injury” as elements of damage, but confined the jury’s consideration of these elements as factors to be considered in assessing the “ amounts” of the other elements of damage. In this, we conclude, the court erred.
In volume 18 of Arkansas Law Review, at p. 305, is found the following statement:
“Loss of earning capacity as an element of damages is sometimes confused with permanency of the injury, which is universally recognized as a separate element of damage. A lawyer or minister might lose an arm with no loss of earning capacity, but he would still be entitled to recover for the permanency of his injury. A hopeless mental defective with no earning capacity can recover for loss of his sight, because he has sustained a permanent injury. A recent Oklahoma decision makes plain the distinction between these two separate elements of damages against the contention that a doublé recovery, was being allowed. It has been said that a permanent injury is one that deprives plaintiff of his right to live his life in comfort, and eas’e without added inconvenience or diminution of physical vigor, but there may be no pecuniary loss or loss of earning capacity in conjunction.” (Emphasis supplied.)
This Law Review article is replete with footnotes citing many cases from this, and other jurisdictions, including Shebester, Inc. v. Ford, 361 P. 2d 200 (Okla. 1961). Also noted is 29 NAOCA L. J. 195, with an exhaustive comment on the point. The comment in 29 NACCA Law Journal, cited in the footnote, supra, is comprehensive, with many pertinent citations on this point, and states on pages 198 and 200 in accordance with our own views, that:
“It is sometimes incautiously stated that a verdict awarding damages for future disability covers only pain and suffering, beyond the special items (expenses and loss of earning power). Such a view is inaccurate, because compensation is routinely awarded for disability per se, as the S'heb ester case (supra) points out, and also for the non-peeuniary, non-pain aspects of the disabled condition, such as deprivation of a normal life and of a chance to pursue non-economic hobbies or recreation.
* * #
As the principal case, S'hebester, demonstrates, permanent and continuing disability is not only an element of damages itself but also a type of injury, which when satisfactorily* proved, is the basis of award of the other elements of damages, such as loss of capacity to work or post-trial pain, and suffering.”
We are of the opinion that the trial court erred in its failure to give AMI 2202 as offered under paragraph 1 of appellant’s requested instruction No. 7 and in modifying this instruction as pointed out, supra.
Appellee contends that since the permanency of the injury was in dispute, the instruction originally offered by appellant [AMI 2202 (B)] was not the proper instruction, but that AMI 2202 (C) should have-been used. We note thiat if permanency was disputed by appellee here, it was only by the general denial in his anstwer to appellant’s complaint and not by evidence presented to contradict the testimony of Dr. Adair, when he testified as follows:
“. . . He has some residue. He’s reached a plateau of improvement, and there is solme residue to his injury. And those things that you mentioned, of •scar and pain and limitation of motion are the residue. And I will say that he has reached ia plateau, you know, he probably won’t get any better from that.”
Appellee also contends that even if there was error, it was harmless and not prejudicial to appellant. With this we cannot agree. A close inspection of the elements of damages in the instruction given, shows that none of these elements pertain to compensation for permanent injury. Limiting the consideration of the jury to permanency as a factor in the other elements of damage is not sufficient when permanency itself is an element. With this in mind, we cannot say that the error was harmless. The evidence was sufficient for the jury to be charged on permanency of appellant’s injury as an element of damages.
We conclude that the trial court erred, and this case must be reversed, because of the modification the trial court made in AMI 2208. Paragraph 5 of the instruction, as modified by the trial court, takes scars, disfigurement and visible results of injury, out of the elements of damage where they belong under AMI 2208 and where they have been at least since 1914. Ferguson & Wheeler Land, Lumber & Handle Company v. Good, 112 Ark. 260, 165 S. W. 628. This instruction, as modified, limited the jury’s consideration to embarrassment and mental anguish suffered by reason of any scars and disfigurement or visible results of the injury. Scars and disfigurement may be real elements of damage separate and apart from mere embarrassment or the mental anguish they may cause. (See Volentine v. Wyatt, 164 Ark. 172, 261 S. W. 308, and other cases cited in comment under AMI 2208). The appellant was entitled to AMI 2208, as requested under proof in this case, and the trial court erred in its refusal and in its modification.
We feel that this case calls for reiteration, with added emphasis, of the per curiam order of this court on April 19, 1965, wherein it was said:
“If Arkansas Model Jury Instructions (AMI) contains an instruction applicable in a civil case, and the trial judge determines that the jury should he instructed on the subject, the AMI instruction shall be used unless the trial judge finds that it does not accurately state the law. In that event he will state his reasons for refusing the AMI instruction. Whenever AMI does not contain an instruction on a subject upon which the trial judge determines that the jury should be instructed, or when an AMI instruction cannot be modified to submit the issue, the instruction on that subject should be simple, brief, impartial, and free from argument,” (Emphasis supplied.)
The purpose of the AMI was to save valuable time in settling instructions at the trial level, to attain uniformity, to reduce confusion, to allow composition of instructions by the courts and attorneys with confidence and ease, and insofar as possible, with such accuracy as to reduce the number and necessity of appeals. The per curiam requirement, supra, recognizes the necessity for flexibility in the use of AMI. Thus, the trial judge may modify if he feels that AMI does not accurately state the law, and, by placing his reasons in the record, the attorneys in considering an appeal, and the appellate court, in considering the points relied upon, may go straight to the heart of the alleged error and adjudge the validity of the refusal or modification of the instruction with greater dispatch and with greater accuracy as to specific point relied upon. To accomplish the purposes of AMI we must insist upon its use where applicable; to hold otherwise, would place us back into the confusion and inaccuracy of the pre-AMI era and destroy the usefulness and purpose of AMI.
For the errors indicated, the judgment of the trial court is reversed and this cause remanded for a new trial.
Reversed and remanded.
BbowN, J., concurs.
FoglemaN, J., dissents.
We do not imply that both of these instructions, AMI 2206 and AMI 2207, should have been given in the form requested. (:See note on use AMI 2207.) | [
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J. Fred Jones, Justice.
This appeal is from a decree of the Columbia County Chancery Court dismissing four complaints filed by the appellant, A. E. Cassard, against the appellees for cancellation of prior oil leases, .or for refund of amounts paid by appellant to appellees for oil leases which were encumbered by the prior leases. The cases were consolidated for trial and are consolidated on appeal.
The appellees, Annie Haynes Campbell, Ettie Haynes Halterman and Eachel Haynes McDonald, owned undivided one-third interests in twenty acres of land in Columbia County. The appellees Cary Haynes and his wife, Ozela, owned a forty acre tract and Cary Haynes was guardian of the estate of his father, J. W. Haynes, who also owned an additional twenty acre tract in the same area. Appellee, Naomi Haynes Wynne, also owned a twenty-acre tract in the same area.
On June 9, 1961, all the appellees executed oil and gas leases to J. Howard-Hooper for a primary term of five years. The record is not perfectly clear, hut apparently on Juné 12, 1961, Hooper assigned these leases to Continental Oil Company. On July 6, 1962, Continental assigned to Hunt Oil Company that part of the leases covering only the Pettit lime formation which is a shallow formation. The north Shongaloo Pettit Lime Reservoir was unitized under order of the Arkansas Oil and Gas Commission in October 1961, and appellees’ land was included in this unit.
This being the situation, in June 1964, appellant took five year standard leases from the appellees and paid them $50.00 per lease acre for the leases. Upon concluding that the unitization order (referred to by some of the parties as “water drive”) constituted a legal unitization, and apparently recognizing the perpetuation of the prior Hooper leases thereunder, appellant attempted to obtain releases from the assignees of the prior leases and being unable to do so, he filed suit in chancery praying an order requiring appellees to either deliver to appellant a release of the prior oil and gas leases, or refund to appellant the amounts he paid for the leases.
The chancellor dismissed the complaints for want of equity and on appeal to this court appellant relies on the following point for reversal, stated in question form, as follows:
“Is a warranty clause in an oil and gas lease defeated by actual or constructive knowledge of a prior, valid .oil and gas lease?”
The leases to the appellant contained warranty clauses as follows:
“Lessor here warrants and agrees to defend the title to the land herein described, and agrees that the lessee shall have, the right at any time to redeem for lessor, by payment, and mortgages, [sic] taxes or other liens on the above described lands, in the event of default of payment by lessor, and be subrogated to the rights of the holder thereof.”
Appellant testified that he did not know of the uniti-zation, and in this connection testified as follows:
‘ ‘ Q. Did you know that there was unitization down there to the Pettit lime?
A. No, of course not. I had heard that, some of the people involved in this had mentioned the fact that there possibly could be.
Q. You say you didn’t know about it and then you say that they told you about it?
A. They told me there was a possibility. However, I asked them if any consideration had been paid or if they were getting royalties or any rentals of any type, at least within the last 12 month period and they all told me no, so I presumed that certainly any valid water flood or any type unitization would have expired.
Q. In other words, you were aware that there was a unit down there at one time?
A. Yes, I didn’t know exactly what it covered.
# * *
Q. Do you recall discussing with Mr. Cary Haynes and Mrs. Wynne the Pettit lime being connected with the water drive?
A. I don’t particularly recall the discussion, I am not denying I had a discussion, I just don’t recall it.
Q. Isn’t it a fact that they were very hesitant to sign a lease and told you they didn’t want to?
A. Yes, I do recall that.
Q. And didn’t yon insist that they sign the lease?
A. Possibly fifty dollars an acre might have done t'he ihsisting, I didn’t.
Q. You talked with them considerably about it after they were hesitant to sign?
A. Yes, they were hesitant.
Q. And they were hesitant due to the fact that a lease was signed a few years before that they were .in doubt about?
A. That was the prime reason.”
Appellant’s attorney, who examined the abstracts of title and prepared the leases, testified from his memory, as follows:
“Mr. Cassard mentioned to me that part of the leases down there were in this unitization but he said that the unit wasn’t any good, that they hadn’t been paid any money, they hadn’t ever received any money, and that he was having it omitted from the abstracts, but the abstractor still placed a little notice in there that by request the unitization is there of record but at the request of the party for which they were preparing it, that they had omitted same and would furnish it upon request. * * * According to my recollection, he was sure that the unit was no good.”
The testimony of all the appellees was substantially the same as that of Mr. ¡Cary Haynes who testified on direct examination by his attorney as follows:
“Q. You know the Plaintiff, Mr. Cassard?
A. I do.
Q. Will you. relate the conversations and business dealings you had with him pertaining to leases down there ?
A. Well, Mr. Cassard came to me and wanted to lease the land. I told him I understood we couldn’t lease the land, we had been forced under a water drive, you know, Mr. McKay and them, the attorneys and everybody, and we fought the water drive but the conservation people ruled for them. I told him that Continental had my lease down there, if you want the history, but they had failed to pay the rentals on it and Cassard told me, he said, ‘As fax as the water drive, I am not interested in it.’ He ■said, ‘I am interested in deep stuff and as far as the water drive, it’s not worth the paper it’s wrote on, you have got to have a unit to have a water drive, you have got to have so many wells to form a unit and you aint got that kind of wells here and it’s not worth the paper it’s wrote on and if you will sign a lease to me I have got fifty dollars an acre for you,’ and I was fool enough to sign it. He brought me one form of lease, I believe oil and gas and mineral deed it called for, and I came to you and told you about it and you told me to change leases and I got an 881/8 form and went to his office and I told him the form changed and I wanted it put in there, ‘Understanding there being a lease under a water drive, ’ and his secretary called Mr. Cassard and held it up and he said, ‘That is all right, go ahead and fix it up,’ and they did. . . .
# * #
Q. And then also, you did request him you said, to put in there ‘Subject to the water drive’?
A. I certainly did.”
The unitization order was of record in Union County and there is no question that all the parties, including the appellant, had actual knowledge as well as constructive notice of its existence. We do not have the prior leases before us but apparently appellees thought they had expired under some rental provision of the leases. Appellant was quite sure they had expired if no delay rentals or royalty had been paid to the appellees for a period of one year. As a matter of fact, appellant was quite sure that the recorded unitization order was invalid.
As we view the record in this case, the. existence, or the validity, of the “water drive” or unitization, is only important insofar as it affects the validity by perpetuation of the prior leases. Neither the Hooper leases'nor their assignments to Continental and subsequent partial assignments to Hunt are in the record before us, so we are unable to determine what delay rentals, if any, were required to maintain the Hooper leases in force, and what attempt was made, if any, to vertically segregate that portion of the Hooper leases which was reassigned to Hunt within the unitized Pettit Lime Reservoir, from that portion of the Hooper leases retained by Continental outside the unitized Pettit Lime Reservoir. Consequently, we are unable to determine whether that portion of the Hooper leases retained by Continental remained subject to the payment of delay rentals after the unitization and assignment to Hunt, if in fact, the Hooper leases did contain delayed rental clauses at all.
It was stipulated, and the record indicates, that ap-pellees were never paid any delayed rentals under the Hooper leases, but there is nothing in the record to show what delayed rentals, if any, should have been paid under these leases. The record indicates that the Pettit Lime Reservoir was being depleted and was unitized as a conservation measure under a water drive recovery method, and that production was being maintained from the unit outside the actual acreage belonging to appel-lees. In any event, throughout the trial of this case, all parties seemed to recognize that the appellees’ land was within a pooled unit and that the unitization was legal and of full force and effect at the time of the trial. Vertical segregation is not alleged or argued, so it would appear tliat all parties recognized the perpetuation of the original leases by the unitized production.
This being the situation, appellant got nothing for his money except some experience and the right to contest the legality of the prior leases, if he desired to do so. Appellant was not obligated to defend his title against the prior leases, this, was an obligation appellees agreed to assume under the covenants of warranty in their leases to the appellant. Appellees followed their attorney’s advice in demanding a change in the lease forms in leasing to appellant, but instead of leasing subject to the prior leases as their attorney advised them to do, they leased to appellant without restriction and they warranted title which they apparently now recognize that they did not own.
Appellees argue that appellant simply took a chance on becoming wealthy from the production he hoped to obtain from deep oil formation, and that he perpetrated a fraud upon appellees in procuring the leases. As we read the record, appellees were receiving no royalties under the prior leases and they would have become at least one-eighth as wealthy as appellant would have become under the terms of their leases to him. We fail to follow appellees’ reasoning as to fraud practiced by appellant, when he was the one who had changed his position by paying to appellees $3,750.00 for something they had already sold and did not own.
There is no question in this case that all of the ap-pellees knew that they were selling to appellant outright leases when they signed the forms, and there is no question that they knew that they had already leased the same minerals to Hooper when they leased to the appellant and accepted his money under covenants that they would warrant and defend their title. The evidence is quite clear in this case that appellees thought that perhaps the original leases to Hooper had terminated, or at least their validity was questionable, because of the failure to pay delay rentals. There is no question that appellant knew of. the prior leases and that he was even more sure than appellees that the prior leases had' been abandoned, had terminated, or at least were invalid. Nevertheless, appellees warranted their title and agreed to defend it and it now appears that the appellant and appellees have concluded that the prior leases were valid when the leases to appellant were executed, or at least it is evident that they have concluded that litigation will be necessary to determine the validity of the prior leases, and the obligation rests on appellees to carry out that determination under the warranty clause of the leases they executed.
Appellant’s knowledge of the prior leases does not relieve appellees from the obligations of their covenants of warranty and their obligation to defend the title to the oil and gas they sold to appellant under the terms of their leases to him. Oklahoma City v. Harper et al, 180 Pac. 2d 162; Texas Co. v. Snow, 172 Ark. 1128, 291 S. W. 826; Gude v. Wright, 232 Ark. 310, 335 S. W. 2d 727.
The evidence is convincing that appellant was fully advised of the unitization of appellees’ lands under the so called “water drive” in.the Pettit lime formation, but being interested in the deep production areas outside and beneath the unitized area or zone, .he intended to lease the deep formation regardless of the status of the Pettit lime formation which he considered of little consequence as well as invalidly unitized. Aside'from the covenants of warranty in this case, if the entire lease to Hooper is being perpetuated by unitized production, equity and good conscience demands that appellees either refund to appellant the money he paid to them, or that they deliver to him the title they warranted that they owned. Under the covenants of warranty, the law requires that this be done.
If the original leases to Hooper have been segregated as to deep and shallow oil pools or sand, and the leases as to the deep oil have not been perpetuated by production from the unitized Pettit pool, and if the segregated portion of the Hooper lease has expired for nonpayment rentals, or for any other cause, it may be that appellees are in a position to deliver to appellant all that he was interested in (the deep oil) and all that he bargained for (beneath the unitized Pettit lime) when he procured the leases. Consequently, in such event, the appellees should have a reasonable time in which to clear their title to the minerals they leased to appellant before being required to refund the purchase price. If appel-lees are unable to deliver good title to at least the area beneath the Pettit lime formation within a reasonable time fixed by the court, appellees should be required to refund the amounts appellant paid them for the leases.
We aré of the opinion that under the circumstances of this case, the appellant is not entitled to interest on any amount refunded and that all parties should bear their respective costs.
This cause is reversed and remanded for further proceedings not inconsistent with this opinion. | [
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Lyle Brown, Justice.
Appellant Eddie James Booker was convicted of robbery. He asserts error by the trial court (1) in denying bis motion for severance, (2) failing to direct a verdict in Ms favor, and (3) refusing to grant a new trial on newly discovered evidence.
Three teenage boys, residents of Pine Bluff, were on their way to a basketball game. It was December and the hour was approximately 7:15 p.m. They were accosted on a street in Pine Bluff by two young men armed with a gun and a knife. (There was a third con federate but he was never identified.) Under threat of violence the teenagers were relieved of a watch,, tvk) coats, and one dollar. As each of the three victims left the scene, one by one, they heard shots coming in their direction. One of the victims, a recent high school graduate, testified he was able to see Booker’s face and to note also that he wore a cap and a blue shirt. On the following.morning the same boy also identified Booker at the jail. The other two victims could not identify Booker.
(1) Denial of motion for severance.. The basis, of the motion was that Booker was being tried jointly with a convicted felon who had been returned from the penitentiary for the trial. There is not an iota of evidence in the record that the jury had any knoAvledge of the co-defendant’s status as a felon. They were charged jointly. Ark. Stat. Ann. § 43-1801 (Jtepl. 1964). There is no showing of abuse of the trial court’s discretion and we do not disturb the ruling. Nolan v. State, 205 Ark. 103, 167 S. W. 2d 503 (1943).
(2) Court’s failure to direct a verdict. The robbery was established and one of the three victims identified Booker. The latter testified he was not in the vicinity of the robbery. We hold the State’s evidence was substantial and that it was for the jury to resolve the facts.
(3) Court’s refusal to grant a new trial on netoly discovered evidence. The motion was bottomed on the testimony of a witness who testified he was told by one Thomas Miller that Miller in fact committed the robbery with which Booker was charged. The testimony was conflicting; in fact, the State’s evidence raised substantial doubt as to Miller’s veracity. It would border on facetiousness to say that the trial court did not act in sound discretion.
To recount the testimony in detail would be of no importance to the bench and bar; suffice it to say that the record has been carefully examined and we find no merit in appellant’s contentions.
Affirmed. | [
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Conley Byrd, Justice.
Appellant, Legal Security Life Insurance Company, was sued on two counts .by Mrs. Jessie Brooks for transactions she had had with American Teachers Life Insurance Association, a fraternal life insurance association, and for transactions with Kelly-Barrett Company, Inc., which held a management contract with American Teachers Life Insurance Association. The record shows that the policies of American Teachers were assumed by Southern United Life Insurance Company; that Southern United was consolidated into American Commerce Life Insurance Company; and that American Commerce Life Insurance Company was merged into appellant Legal Security Life Insurance Company of Dallas, Texas.
The first count in Mrs. Brooks’ complaint was on a $5,000 note executed on May 10, 1963. The second count was an equitable garnishment, it being alleged that Kelly-Barrett Company was indebted to Mrs. Brooks in the amount of $11,866.50, for which judgment had been obtained; and it further being alleged that as of October 17, 1963, American Teachers was indebted to Kelly-Barrett in the sum of $12,941.61, which is still due. The allegation then followed that the liabilities of American Teachers were assumed by Southern United, for which appellant Legal Security now stands obligated.
Appellant denies that the contract of Southern United assumed the responsibilities of American Teachers ; denies that the $5,000 note is an obligation of American Teachers; and in the alternative pleads fraud in the procurement of the contract between American Teachers and Southern United, and that the obligation of Amer ican Teachers to Kelly-Barrett 'Company was extinguished by an accord and satisfaction. Appellant filed a third-party complaint against J. C. Kelly, J. G-. Barrett and Kelly-Barrett Company, Inc., based on an indemnification clause in the contract between Southern United and American Teachers.
From a decree holding appellant liable on both counts and dismissing its third-party complaint against J. C. Kelly (J. Gr. Barrett and Kelly-Barrett Company, Inc., not having been served), appellant appeals, raising the same issues.
The agreement between Southern United and American Teachers, insofar as applicable, provides:
“(2) Southern United Life Insurance Company further agrees to assume all of the legal liabilities of American Teachers Life Insurance Association including all liabilities under and by virtue of all outstanding policies of insurance issued by said Association. . .”
* # *
“(6) It is agreed and understood that this assumption of all liabilities and all insurance in force by Southern United Life Insurance Company of American Teachers Life Insurance Association is based upon certain warranties and covenants made by the officers of American Teachers Life Insurance Association, and said officers whose names are affixed to this agreement do hereby indemnify the said Southern United Life Insurance Company from any and all claims over and above those herein listed. Specifically, it is agreed that the purported claims of Jo Ann Abel in the amount of $1,000.00, Kate C. Nunn in the amount of $1,250.00, Cities Service in the amount of $474.31, Golden Galaries in the amount of $649.18, and Tom Blackwell of Austin, Texas in the amount of $69.53, are actually individual liabilities and are not liabilities of the company for which the company would in any way become liable.”
Obviously the above contract provisions placed Southern United in the position of assuming the liabilities of American Teachers if any were owed, despite the fact that they were not listed on the contract. Therefore we find without merit appellant’s contention to the contrary.
In urging that it was not liable on the contract between Southern United and American Teachers, appellant contends that the contract was procured by fraud of American Teachers’ officers. They also argue that the trial court erred in excluding certain evidence tending to show fraud. The latter we need not consider, for the record is clear that American Teachetfs ’ books showed the obligations of Mrs. Brooks and Kelly-Barrett Company as those of American Teachers. In fact, the Insurance Commissioner had audited the books as of July 31, 1963, and his audit included the obligations as liabilities of American Teachers. The record further reflects that the contract between American Teachers and Southern United was initiated by the Insurance Commissioner, and that agents of Southern United actually examined American Teachers’ books and records before entering into the contract. While Southern United’s president, Mr. Mendenall, denied any personal knowledge of such obligations, the agents who examined the books were not called to testify. Since Mr. Mendenall stated that he did not rely on the representations made by American Teachers but on examination of the books by Southern United’s agents, we hold that appellant failed to show that there was any fraud on the part of American Teachers in the procurement of the contract. Fausett & Go., Inc. v. Bullard, 217 Ark. 176, 229 S. W. 2d 490 (1950).
The record shows that Mrs. Brooks advanced to J. C. Kelly $5,000 at the time the preliminary certificate of American Teachers was issued early in 1963. This $5,000 was placed in a bank under the joint control of J. C. Kelly and the insurance commissioner-and served as the bond required by Ark. Stat. Ann. § 66-4704(2) (Repl. 1966) for the issuance of the preliminary certificate. American Teachers’ permanent certificate to do business was issued on April 30, 1963. Subsequent to the issuance of the permanent certificate the money was withdrawn from thembank and concededly went into the assets of American Teachers. On May 10, 1963, the $5,-000 note here involved was executed. The note was on a form designed for use by individuals. On the signature lines first appeared the name of J. G. Barrett and then that of J. C. Kelly. To the right of their signatures appeared “American Teacher Ins Assn — P O 3095, Little Rock, Ark”. Both Mrs. Brooks and J. C. Kelly testified that the note was an obligation of American Teachers. There is no testimony to the contrary, except for the appearance of the note, and we hold that under the record this was sufficient to establish the note as an obligation of American Teachers — particularly since the Insurance Commissioner’s audit so listed it as of July 31.
As a further defense to liability on the note, appellant contends that American Teachers, being a fraternal benefit society, had no authority to borrow money and thus its conduct in making the obligation was ultra vires. In view of Ark. Stat.’Ann. § 66-4704(6) Repl. 1966), we find this contention to be without merit. That section specifically provides that such corporations would have such powers “as are necessary and incidental to carrying into effect the objects and purposes of the society,” and it would be unduly restrictive of such a society to hold that it could not borrow money. To hold otherwise would prevent such a society from building its own office building.
The issue on equitable garnishment resolves itself into one of accord and satisfaction. It is conceded that if American Teachers is not presently obligated to Kelly-Barrett, Mrs. Brooks’ equitable garnishment must fail. Mr. Kelly testified without equivocation that at the time of the contract and the assumption of liabilities by Southern United on October 17, 1963, American Teachers was not personally indebted either to him or to J. G. Barrett. He stated that the obligation was owed to Kelly-Barrett Company, Inc. Mr. Mendenall testified, without contradiction, that Southern United’s check No. 1654 for $250, dated October 16, 1963, and its check No. 1655 for $902, dated October 17, 1963, were given in complete satisfaction of all obligations owed by American Teachers to Kelly-Barrett Company, Inc.
The record also shows that Kelly-Barrett was incorporated for the sole purpose of managing American Teachers; that it ceased to do business about August 31, 1963, when negotiations were started for the reinsurance with Southern United; and that, except for the obligation owed by American Teachers to Kelly-Barrett, it had no assets as of October 17, 1963.
Kelly was president of American Teachers and Barrett Avas vice president at the time the October 17, 1963, contract with Southern United was executed. The record is not clear as to what Barrett’s status was with Kelly-Barrett Company, (it appearing that he had resigned from its board of directors), but it does show that Kelly was the principal officer of Kelly-Barrett Company at that time.
Under the circumstances the payments by Southern United to J. C. Kelly and to J. C. Kelly and J. G. Barrett were obviously sufficient to constitute an accord and satisfaction. Pettigrew Machine Co. v. Harmon, 45 Ark. 290 (1885).
To refute the accord and satisfaction argument, Mrs. Brooks points to the fact that on check No. 1655, made payable to Glen Barrett and' J. C. Kelly in the amount of $902, there was this notation:
“Full and final settlement for any claims on American Farm Life Insurance Association and American Teachers Life Insurance Association.”
From this notation Mrs. Brooks argues that parol evidence such as Mr. Mendenall’s was insufficient to contradict the notation on the check. Tillar v. Wilson, 79 Ark. 266, 96 S. W. 381 (1906). We hold Mrs. Brooks’ contention to be without merit, for the clear and uncon-tradicted proof shows that no obligation was personally owed to J. C. Kelly and Glen Barrett; and under the holding in Tillar v. Wilson, supra, it is specifically recognized that clear, cogent and convincing evidence can be introduced to contradict a written instrument when properly pleaded. We find that the pleadings in this case were sufficient to raise the issue. Furthermore, Mrs. Brooks’ argument overlooks check No. 1654 for $250, made payable to J. C. Kelly, without any notation.
The $5,000 note above was not on the itemized list of obligations attached to the contract between American Teachers and Southern United. Under the facts here, paragraph 6 above clearly shows that J. C. Kelly and J. G. Barrett agreed to indemnify Southern United for any such obligations not appearing on the list. Therefore we hold that the trial court was in error in not awarding judgment against J. C. Kelly for the $5,000 obligation for which Mrs. Brooks is entitled to judgment against appellant Legal Security Life Insurance Company. Appellee Kelly argues that appellant has waived this argument by not arguing it in this court. We disagree, and hold that appellant is entitled to judgment against Kelly for $5,000.
Therefore, the trial court’s judgment against appellant Legal Security Life Insurance Company upon the equitable garnishment is reversed and dismissed; its judgment against appellant and in favor of Mrs. Brooks for the $5,000 is affirmed; and its dismissal of appellant’s claim of indemnity against appellee J. C. Kelly is reversed with directions that judgment he entered for $5,000. | [
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G-reenhaw, J.
Appellee sued appellant to recover damages for personal injuries which he claims to have received at Okolona, Arkansas, April 3,1940, while alighting from a mixed freight and passenger train operated by appellant. Appellee, a passenger on the train, claims that after the train stopped and while-he was descending the steps the train gave a sudden jerk or lunge, causing him to fall down the steps and onto the station platform, resulting in injuries hereinafter described.
This is the second appeal in this case, the first appeal having been decided by this court April 28, 1941. Jones v. Missouri Pacific Railroad Company, Thompson, Trustee, 202 Ark. 333, 150 S. W. 2d 742. Reference is made to the opinion of this court on the first appeal for a statement of the facts with reference to the cause of appellee’s alleged injury, since appellee’s evidence on the second trial of the case is practically the same as that set forth in the first opinion. In it this court held that appellee had made a prima facie showing of negligence, and the cause was reversed and remanded for a new trial, the lower court having directed a verdict for defendant at the conclusion of plaintiff’s testimony.
Appellant offered evidence in the second trial to the effect that there was no sudden jerking or lunging of the train which caused appellee to be thrown down the steps, and also offered evidence by the train crew that the brakes and other equipment of the train were in good condition at the time of the alleged injury. Evidence of appellant and appellee as to whether the train gave a sud-dent lunge or jerk was in direct conflict. This was a question of fact for the jury, and since there was substantial testimony that there was a sudden movement of the train as appellee was alighting, the verdict of the jury is conclusive as to the question of negligence.
A verdict for $2,000 was rendered in favor of appellee, upon which judgment was entered and from which is this appeal. Appellant has cited a number of errors as grounds for reversal of this cause. We do not think that any of the assignments of error are tenable except that the verdict is excessive.
The evidence shows that appellee at the time of his alleged injury was 27 years of age and was a day laborer and farmer. He testified that when he fell he landed on his shoulder and hip, and was unconscious for a few minutes ; that he suffered a great deal of pain and that his left leg has caused him considerable trouble. He used two crutches for about three weeks-, and one for about seven weeks. After the accident he farmed until he laid by his crop, and he worked in the timber business during 1941.
H. B. Stitt, who was with appellee and who left the train immediately before appellee fell, testified substantially as did appellee, and stated that appellee bled after the fall.
Appellee was taken to the office of Dr. J. C. Alford, a practicing physician in Okolona, who examined him and administered treatment. Dr. Alford testified that he did not find anything in the nature of an injury except a small skinned place on appellee’s knee, and the muscles of his back seemed to be contracted. No bones were broken, and there was nothing in his condition that would disable him from working. The doctor further testified that appellee had varicose veins in both legs, those in his right leg being larger than those in the left leg which appellee claimed was injured. He gave appellee a hypodermic because appellee said he was in pain.
The day after the accident appellee consulted Dr. R. L. Bryant of Arkadelphia, who examined him and thereafter treated him a few times. Dr. Bryant testified that there was a bruise or contusion on the left shoulder and hip, with abrasions of the left knee. He found that appellee’s left leg was smaller than his right. .He X-rayed the pelvis and small of the back, and the X-rays showed a disturbance in the left sacro-iliac joint. He further testified that he could not tell from the X-ray pictures when the plaintiff was injured, or whether it was an old or a neyr injury, and that the varicose veins and other injuries complained of could have been caused from heavy lifting. He testified that appellee had probably had varicose veins for a number of years.
Dr. Bryant did not see appellee for a period of several months'. A short time before the trial he again ex amined him, and stated that appellee’s condition had improved, but that there was some paralysis in the left knee and leg, and in his opinion he would never again be able to do hard manual labor.
Dr. Bryant was asked to give appellee the reflex test on both legs in the presence of the jury, and when this was done it was shown, and the doctor so testified, that the reflex of the left leg was more pronounced than that of the right. He admitted that paralysis of the nerve of the left leg would cause the reaction of that leg to be less than the reaction of the right leg.
Dr. Alford further testified that he saw appellee walk the day of the trial, and in his opinion he was not hurt at all.
According to the testimony of appellee and others, for some months prior to the trial appellee had been engaged in- performing manual labor incident to the timber business which no doubt he could not have done had he sustained the serious and enduring injuries which it was contended he received.
We have carefully considered all of the evidence pertaining to the nature of appellee’s injury, and have concluded that the verdict was excessive, and that the evidence in this case does not sustain a .judgment for more than $500.
The judgment is, therefore, modified by reducing it to $500, and as thus modified is affirmed.
Mehaffy, J., not participating. Humphreys, J., dissents from the reduction. | [
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Donald L. Corbin, Justice.
Appellant, William Bryant Warren, appeals a judgment of the Pope County Circuit Court convicting him of capital murder. Appellant was tried by a jury, found guilty, and sentenced to life in prison without parole. Our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(a) (2).
On appeal, appellant raises four points for reversal.' We find no error in any of these points and affirm the trial court’s judgment of conviction.
I. Directed Verdict
Appellant’s first point on appeal is that the trial court erred in denying his motion for a directed verdict because the penetration of the victim’s vagina and rectum by a foreign instrument, which served as the basis for the underlying felony of rape, was also a contributing cause of the victim’s death. Therefore, appellant argues the proof does not support the underlying felony of rape and his conviction for capital murder pursuant to Ark. Code Ann. § 5-10-101 (a)(2) (Supp. 1991) must be reversed.
The Medical Examiner, Dr. Fahmy Malak, testified the victim died from a combination of injuries which included external injuries to the head, face, nose, lips, right breast, elbows, vagina and anus; trauma and fracture of the skull, with damage to the underlying brain; perforation, rupture and bruising of the vagina and perforation of the rectum which resulted in a connection between the vagina and the rectum and loss of about one pint of blood which was found in the pelvis. Additionally, there was evidence the victim was submerged in water. The Medical Examiner concluded the terminal event was drowning and the cause of death was multiple injuries. The Medical Examiner testified that all the wounds could have been caused by the same object, a circular object such as a shovel handle.
Appellant argues that since the penetrating wounds in the vagina and rectum of the victim were probably made by the same weapon as the wounds to the head and abdomen of the victim, the penetration of the vagina and the rectum was for the purpose of committing murder and not for the purpose of committing rape. Appellant argues, since the penetration of the vagina and anus of the victim caused injuries which contributed to the death of the victim, the penetration is used to support the charge of murder and cannot also be used to support the charge of rape.
In support of his argument, appellant cites cases holding an assault and battery, which caused the death, cannot be used as an underlying felony to support a capital murder charge and burglary cannot be used as an underlying felony to support a capital murder charge when the proof showed the murderer entered the occupied dwelling solely in order to kill those within and not for a separate purpose which would support the burglary charge. Sellers v. State, 295 Ark. 489, 749 S.W.2d 669 (1988); Parker v. State, 292 Ark. 421, 731 S.W.2d 756 (1987), cert. denied, 111 S. Ct. 218 (1990). Unlike the cases appellant cites, penetration of the victim’s vagina and rectum was not necessarily committed with the same objective as the other blows to. the victims body. While the penetration of the victim’s vagina and rectum with a blunt object caused internal injuries that contributed to the victim’s death, the penetration of the victim’s vagina and rectum was not necessary to cause the victim’s death. An assault and battery is necessary to cause death; and burglary by entering into an occupiable structure is necessary in order to kill the person within. Strawhacker v. State, 304 Ark. 726, 804 S.W.2d 720 (1991). “Rape and first degree battery are separate and distinct crimes . . . with different elements of proof. And neither is a crime which can be subsumed under the other.” Strawhacker, 304 Ark. at 731, 804 S.W.2d at 723. Rape by deviate sexual activity, which was the underlying felony in this case, requires the penetration “of the vagina or anus of one person by any body member or foreign instrument manipulated by another person.” Ark. Code Ann. § 5-14-101(1)(B) (1987). Penetration of the vagina or anus of a person is not an act which is subsumed by the murder as the penetration is not necessary to cause the death.
II. Sexual Gratification
Appellant argues the trial court erred in denying his motion for a directed verdict because there was insufficient proof to support a finding that appellant committed the underlying felony of rape. Specifically, appellant argues the state failed to prove the penetration of the victim’s vagina and anus was done for the purpose of “sexual gratification” as required by Ark. Code Ann. § 5-14-103(a)(1) (1987). The state contends appellant’s argument was not preserved for appellate review because appellant did not specify the basis for his objection in the trial court. At the close of all the evidence, appellant moved for a directed verdict “based on the fact that there is no showing of a rape.” Appellant stated in his motion that the basis was the state’s failure to prove rape. This was sufficient to apprise the trial court appellant was arguing the state failed to prove the elements of rape. “Sexual gratification” is an element of rape. Therefore, appellant’s argument was preserved for appeal.
Appellant argues the state failed to prove the penetration of the victim’s vagina and anus was done for the purpose of “sexual gratification” as required under the statute. Ark. Code Ann. § 5-14-103(a)(1). Section 5-14-103(a)(1) provides in pertinent part:
A person commits rape if he engages in sexual intercourse or deviate sexual activity with another person:
By forcible compulsion[.]
“Deviate sexual activity” is defined in pertinent part as:
any act of sexual gratification involving:
The penetration, however slight, of the vagina or anus of one person by any body member or foreign instrument manipulated by another person[.]
Ark. Code Ann. § 5-14-101 (1)(B) (1987). “Sexual gratification” is not defined in the statute, but we have construed the words in accordance with their reasonable and commonly accepted meanings. McGalliard v. State, 306 Ark. 181, 813 S.W.2d 768 (1991).
We have held it is not necessary for the state to provide direct proof that an act is done for sexual gratification if it can be assumed that the desire for sexual gratification is a plausible reason for the act. McGalliard v. State, 306 Ark. 181, 813 S.W.2d 768; see also Holbert v. State, 308 Ark. 672, 826 S.W.2d 284 (1992). We have previously stated that “when persons, other than physicians or other persons for legitimate medical reasons, insert something in another person’s vagina or anus, it is not necessary that the state provide direct proof that the act was done for sexual gratification.” Williams v. State, 298 Ark. 317, 321, 766 S.W.2d 931, 934 (1989). Appellant argues that our interpretation of “sexual gratification” in this manner does not reflect the will of the legislature, which has never defined sexual gratification nor changed the definition of deviate sexual activity despite many opportunities to do so. The legislature has also had several opportunities to define sexual gratification since the Williams case was decided and has not chosen to do so. Therefore, following Williams, McGalliard and Holbert, the state had sufficient proof to support the charge of rape and the trial court did not err in denying appellant’s motion for a directed verdict.
III. Hearsay Statement
Appellant argues the trial court erred by excluding hearsay testimony from the victim’s father that the victim had told him she was dating a married man. Appellant contends the information solicited by his question falls under Ark. R. Evid. 804(b)(3) and should have been allowed. Ark. R. Evid. 804(b)(3) provides in pertinent part:
Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
Statement against interest. A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability or to render invalid a claim by him against another or to make him an object of hatred, ridicule, or disgrace, that a reasonable man in his position would not have made the statement unless he believed it to be true.
Appellant argues that even today for a woman to admit she is dating a married man to another is to subject her to disgrace and ridicule and that a reasonable woman would not say she was dating a married man unless it was true. Appellant argues he was prejudiced by the trial court’s decision because he was unable to argue that the married man might have murdered the victim when she told him she thought she was pregnant.
We uphold the trial court’s ruling if it was correct for any reason. Chisum v. State, 273 Ark. 1, 616 S.W.2d 728 (1981). The state argues that the trial court’s ruling can be upheld because the question was beyond the scope of direct examination and was irrelevant. “The trial judge has considerable discretion in determining the scope of cross-examination” and we do not reverse absent an abuse of that discretion. Bennett v. State, 308 Ark. 393, 400, 825 S.W.2d 560, 564 (1992). Ark. R. Evid. 611 provides in pertinent part:
(b) Scope of Cross-Examination. Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.
The state only asked the victim’s father about his race, the race of his family and his daughter, the victim, during direct examination. Therefore, the question was outside the scope of direct examination as the state contends. It was within the trial court’s discretion to allow appellant’s question, but it was not error for the trial court to refuse to allow the question. Additionally, if appellant had wished to ask the question of the witness, appellant could have called the witness on direct and asked the question. However, appellant chose not to call any witnesses in his defense.
IV. Photographs
As his last point on appeal, appellant argues the trial court erred in admitting photographs of the victim’s autopsy over his objection. Appellant objected to nine photographs which were admitted over his objection. These photographs are reproduced in the appendix along with the photographs which were admitted and to which he did not object. However, in his argument appellant only specifically refers to three photographs which were introduced over his objection. Therefore, we will only address those photographs for which appellant presents an argument on appeal. They are: State’s Exhibit #56, State’s Exhibit #58, and State’s Exhibit #65.
Appellant claims there were sufficient pictures of the autopsy to which he did not object to show the cause of the victim’s death and it was error to admit the pictures to which he objected because the prejudicial effect of those photographs outweighed the probative value. “The question of prejudicial effect versus probative value is a matter addressed to the discretion of the trial judge, and on appeal” we do not reverse absent a manifest abuse of that discretion. Bennett v. State, 297 Ark. 115, 129, 759 S.W.2d 799, 807 (1988), cert. denied, 111 S. Ct. 144 (1990). The trial court admitted the photographs only after argument by counsel and review of the photographs during which the trial court determined that the photographs were not repetitious and were needed by Dr. Malak to explain his testimony. We have held that “even if photographs are inflammatory in the sense that they show human gore repulsive to the jurors, they are admissible within the discretion of the trial judge if they help the jury understand the testimony.” Richmond v. State, 302 Ark. 498, 503, 791 S.W.2d 691, 694-95 (1990). In this case we cannot say that the trial court abused its discretion. Richmond, 302 Ark. 498, 791 S.W.2d 691.
As to State’s Exhibit #56, appellant argues that it is simply a distant view of State’s Exhibit #55 to which appellant also objected. Dr. Malak’s testimony regarding State’s Exhibit #56 was as follows:
Exhibit 56 is a photograph of [the victim] as I received her. Exactly as she is I photographed the body. The photograph shows that she was wearing a short-sleeve pullover shirt, multi-colored. The shirt was above the breast area and it shows the foam coming from the nose. It is like shaving cream, if you like, around the — mushroom-like around the nose. This indicates that she was breathing air when she was placed in water. It shows also the damage — some damage to the face and the right side of the — of the head. It also indicates — there is a number 3-1-6. This is the case number to indicate this is [the victim], the one I did the autopsy upon.
As to State’s Exhibit #55, Dr. Malak testified as follows:
Exhibit No. 55 is a front view of [the victim] showing her face and also the number to indicate that this is [the] same body. The photograph shows a tear — t-e-a-r on the left eye about the angle of the eye, bruise of the eye, bruise of the nose, and the lips, as well as shows also damage to the right side of the head and also shows the pearl earring on the right side.
The foam around the victim’s nose referred to in State’s Exhibit #56 has been removed in State’s Exhibit #55. Clearly State’s Exhibit #56 was used by Dr. Malak and shows that the victim was breathing when she was placed in the water. Thus it was helpful to the doctor’s testimony and was not repetitive of State’s Exhibit #55. Appellant objected to the introduction of State’s Exhibits #58 & #65 because he contends they are repetitive of State’s Exhibits #59 & #64. The photographs are all essentially of the same view, but they are not identical. State’s Exhibit #59 is a view of the right side of the head before any blood has been cleaned from the face and before the foam has been cleaned from the nose. According to Dr. Malak’s testimony, State’s Exhibit #59 shows damage to the right temple, blood trickling toward the right ear, and foam around the nose. State’s Exhibit #64 is the same view of the right side of the head, but from slightly farther away and after the blood and foam have been cleaned from the face. According to Dr. Malak, the right side of the head was re-photographed after the blood and foam were cleaned up “to show the nature of the wound; to demonstrate exactly what the injuries are; and it shows also the damage to the nose and to the lips and to her right cheek.” Dr. Malak also testified he thought it was important that this photograph showed one pearl earring and a total of four pierced holes in the ear. State’s Exhibit #58 is a photograph of the right temple after Dr. Malak shaved the hair to show the wound and demonstrates that on the right side of the wound there is a circular wound and on the left side there is a tear extension. Dr. Malak testified that the nature of the wound “indicates the direction of — of the blow was coming from above down and to the right and the circular nature of the wound indicates a circular object has been used.” State’s Exhibit #65 is a close-up photograph of the wound to the right temple after the area has been cleaned and shaved which, according to Dr. Malak, shows the circular nature of the rounded object which had been thrust in the bone.
Thus, although the photographs are similar, each photograph was used by Dr. Malak during his testimony to show the nature of the victim’s wounds and were helpful to the jury. Therefore, the trial court did not err in allowing the photos to be admitted.
Under Ark. Sup. Ct. R. 4-3(h), the record has been reviewed concerning the rulings made against the appellant by the trial judge during the trial, and we find no error. For the reasons stated above, we affirm.
Glaze, J., concurs.
Holt, C.J., Dudley and Newbern, JJ., dissent. | [
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McCulloch, C. J.
The appellee in each of these two cases is a foreign corporation whose stock does not express any par value, the stock of each of the corporations being what is termed non-par-value stock. Each of the corporations entered the State several years ago and paid its respective franchise tax up to the year 1923, when the present controversy arose over the basis on which the franchise tax should be imposed, and these actions were instituted by appellee to restrain the Attorney General from enforcing what is claimed by appellees to be unjust exactions with respect to this tax.
The General Assembly of 1923 enacted a statute (General Acts 1923, p. 190) authorizing the formation or reorganization or merger of corporations with shares of stock without nominal or par value.. Section 8 of that statute provides that the annual franchise tax on a corporation having shares without nominal or par value “shall be treated and considered as having and being of the value actually received by the corporation for the issuance of such shares.” Later, during the same session of the General Assembly, another statute was enacted (Acts 1923, p. 317), which prescribed a schedule of fees for filing articles of incorporation and also a schedule of franchise taxes, and one of the sections of that statute, after referring to the other statute just referred to, relating to corporations operating thereunder, provided that “for the purpose of the taxes or fees prescribed by law to be paid on the filing of any certificate or other paper relating to corporations and of franchise taxes prescribed by law be paid by corporations to the State of Arkansas, but for no other purpose, such shares shall be taken to be of the par value of twenty-five dollars each.”
Each of the appellees filed with the Railroad Commission, which is now the Tax Commission of the State, its annual report for the year 1923, pursuant to the statute (Crawford & Moses’ Digest, § 9802), includina:. among other things, the number of shares of its subscribed and paid-up capital stock and the value of same, and the value of its property owned and used in this State, as well as the value of its property owned and used outside of the State.
Section 9804, Crawford & Moses’ Digest, provides that, upon the filing of a report by a corporation, the Commission “from the facts thus reported and any other facts coming to its knowledge bearing upon the question, shall determine the proportion of the authorized capital stock of the corporation represented by its property and business in this State,” and shall report the same to the Auditor of State, who shall charge and certify it to the Treasurer, and that a tax of “one-tenth of one per cent, each year upon the proportion of the subscribed, issued and outstanding capital stock of the corporation represented by property owned and used in 'business transacted in this State” shall be charged.
The act of 1923, supra, provides that the franchise Tax of corporations shall be ‘ ‘ one-tenth of one per cent, each year upon the proportion of the subscribed, issued and outstanding capital stock o.f the corporation employed in Arkansas.” Pursuant to these statutes, the Railroad Commission certified to the Auditor the franchise tax of each of appellee corporations for the year 1923. Appellee Margay Oil Corporation showed by its report the valuation of property owned and used in the State of Arkansas in the sum of $200,000, and the Commission in fixing the amount of its franchise tax figured the shares of capital stock at twenty-five dollars per share, in accordance with the statute, on the basis of the same proportion as the value of the property situated in Arkansas bears to the value of the entire property of the corporation. This made- the tax on that corporation the sum of $2,580.42, and made the tax on the other appellee, figured on the same basis, the sum of $2,549.35.
Appellees in this suit attack the validity of the statute fixing the basis of valuation of non-par-value stock. The Commission followed the terms of the statute in fixing the amount of the tax, so the case turns on the question, of the validity of the -statute.
The only method by which the statutory requirement, in basing the t-ax upon “the proportion of the subscribed, issued and outstanding capital stock of the corporation employed in Arkansas,” can be complied with is to do as the Commission did in computing the proportion upon the same ratio as the value of the property in Arkansas bears to the total value of all the property of the corporation.
Appellees attack the validity of the statute as in conflict with the Constitution of the United States and the Constitution of the State, on the ground that it constitutes a denial of due process of law by taxing the property of corporations outside -of the State and in discriminating against them by prescribing a meth-pd of taxation, at a higher rate than is applied to other corporations, domestic and foreign, not having par-value stock, and by taxing them at a higher rate than is applied to other foreign corporations not having non-par-value stock divided into a smaller number of shares.
We are unable to preceive any theory upon which it can be claimed that the prescribed statutory method of fixing the tax constitutes an imposition of the tax on property of either of appellee corporations situated outside of the State. If it be conceded that the statute is invalid because it adopts the wrong method of taxation, it is not true that the tax imposition reaches to property outside of the State. The statute expressly provides, as we have already seen, that the fee shall be based upon the proportion of subscribed stock of the corporation employed in Arkansas. Property outside of the State is not taxed at all under this method, and is not considered except for the purpose of determining the proportion of the non-par-value stock representing the property in this State. Learned counsel for appellees cite numerous decisions of the Supreme Court of the United States establishing the rule that it is beyond the power of the State, under any guise whatever, to tax property outside of the State, or to levy franchise taxes based upon property outside of the State, or to burden interstate commerce by taxation, but those cases have no application here, for the reason, as before stated, that this statute does not purport to tax property outside of the State nor. to burden interstate commerce, and does not, in fact, bring about that result. The same principle is applicable as that which seemed to control the Supreme Court of-the United States in the following cases: Wallace v. Hines, 253 U. S. 66; Underwood Typewriter Co. v. Chamberlain, 254 U. S. 113; Hump Hairpin Co. v. Emmerson, 258 U. S. 290; Bass, Ratcliff & Gretton v. Taos Commission, 266 U. S. 271, 45 Sup. Ct. Reporter, 82.
The effect of the statute is simply to provide a definite method for fixing the franchise tax, and, unless it is found that it is confiscatory in its effect, nr that it results in a method whereby the tax is imposed upon property outside of the State, or is a burden upon interstate commerce, it is not open to attack.
The power of the State to make reasonable classifications for purposes of regulation or of taxation has been often decided and never denied, and such .classifica7 tions will not be overturned by the court if all corporations of the same class are treated alike. St. L. I. M. & S. Ry. Co. v. Paul, 64 Ark. 83; St L. I. M. & So. Ry. Co. v. State, 86 Ark. 518; Arkansas Stave Co. v. State, 94 Ark. 27. The statute under consideration applies equally to all corporations organized on the same basis, both domestic and foreign, that is to say, corporations with non-par-value stock. It may be true, as urged by counsel for appellees, and as shown by illustrations in the brief, that the statute may work a difference in the amount of tax as between corporations having the same amount of assets, but this argument is answered by the fact that a corporation may choose for itself whether it shall or shall not bring itself within the terms of this statute. It is a voluntary act of the corporation in accepting the statutory basis of par-value, rather than to express a value in the face of the certificate. Such statutes are not uncommon, but, on the contrary, are in vogue in a great many of the States, such statutes generally prescribing a par value of one hundred dollars. Similar statutes have been upheld in Michigan and Illinois. Detroit Mortgage Corporation v. Secretary of State, 211 Mich, 320, 178 N. W. 697; Roberts & Schaefer Co. v. Emmerson (Ill.), 144 N. E. 818. Our statute, however, fixes the value at twenty-five dollars, which is the par value of the stock of corporations organized under general statute. It is not without interest to note that in the State of Delaware, where both of these corporations are organized, there is a statute fixing the value of non-par-value stock at one hundred dollars. Nor is there any force in the contention of counsel that the statute, -as applied to the total shares -of -stock, is invalid because it fixes the par-value of the capital stock at a sum enormously in excess of the actual value of the assets of the corporation as shown by its annual report to the Railroad Commision. It will be noted, as we have already seen, that the tax is not based upon the total value of the stock, but only that portion of it which represents the investment and ownership of property in this State, and it will be seen that this statute applies alike to all corporations, domestic and foreign, which operate on the non-par-value basis. There is no unfair discrimination against that kind of a corporation. The statute does not, in any view, constitute a violation of § 6, art. 12, of the Constitution of the State, since it is seen that there is no element of confiscation involved in its effect.
The State has the power to fix the method of ascertaining the value of a franchise and imposing a tax on. that basis, if it is a fair and just basis.
We fail to discover any grounds for attack upon the validity of this statute, and as its terms were complied with in the imposition of the tax against each of the appellees, it follows that the decree of the chancery court restraining the State’s officers from enforcing this tax was erroneous. Therefore the decree in each case is reversed, and the cause remanded for further proceedings not inconsistent with this opinion. | [
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Tom Glaze, Justice.
This probate court case on appeal is a companion one to a chancery court appeal (No. 93-224), and both cases, decided by the same trial judge, involve questions concerning the construction of testamentary trusts provisions in the Will of Jack W. Rich and provisions of the Will of Lois W. Rich, Mr. Rich’s wife. Lois died about eleven years after her husband. As residuary beneficiaries, appellants initiated suit in this matter in Crittenden Probate Court, seeking discovery of assets held in trust, asking for assets in the Rich Marital Trust to be placed in Lois Rich’s estate and further requesting an equal in-kind distribution of stock. Appellee, as trustee of the Rich Marital Trust, entered her appearance in the probate proceeding, and denied that any of the relief sought by appellants should be granted and specifically stated the probate court had no jurisdiction to distribute the assets or stock as appellants requested. Appellee then filed suit in Crittenden Chancery Court for a declaratory judgment, requesting a distribution of stock and assets in a manner which appellants subsequently opposed in their answer to appellee’s petition.
The probate court decided only that the distributions of assets contained in Mr. Rich’s testamentary marital trust need not pass through the estate of Lois W. Rich. None of the parties question the probate court’s ruling in this respect. Appellants are concerned with the following part of the probate court’s order:
The remaining controversies between the parties with respect to the duties and/or discretion of Sara Larkey in dividing and distributing assets of the Rich Marital Trust as Trustee thereof are being resolved contemporaneously by the Chancery Court in the above-described Chancery action. Insofar as this Court has jurisdiction of that subject matter, it adopts the Chancery Court’s findings as its judgment herein. Otherwise, this Court abstains from deciding those trust issues herein. (Emphasis added.)
The chancery court did, in fact, eventually decide those issues touching on the construction of the Richs’ wills, the distribution of the assets and stock thereunder and the validity of appellee’s actions making such distributions when she was both a trustee and beneficiary. However, out of an abundance of caution, appellants contend the probate court had no authority to decide issues involving the distribution of assets in this case, and insofar as the probate court indicated it did have, appellants ask us to reverse such a ruling. Appellants merely wish to be assured the relevant issues decided by chancery court in this cause are in no way obscured or prevented from being considered on appeal because of an erroneous probate order.
While we understand appellants’ cautious approach, we do not read the probate judge’s order to mean that the probate court was exercising jurisdiction to decide whether appellee’s proposed distribution of assets and stock is valid. Appellants are correct that neither the Arkansas Constitution nor Ark. Code Ann. § 28-1-104 (1987) confers on probate courts jurisdiction to administer a trust created by a will. See Alexander v. Alexander, 262 Ark. 612, 561 S.W.2d 59 (1978). The probate court here acted properly in this matter by deferring the related trust and distribution issues to chancery court. Therefore, we affirm the probate court’s decision. Having disposed of the jurisdiction issue raised in this appeal from probate court, we consider all remaining issues between the parties in the chancery court appeal, No. 93-224, Clement v. Larkey, 314 Ark. 489, 863 S.W.2d 580 (1993.) | [
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David Newbern, Justice.
This is a first degree murder case in which the appellant, Darrell Smith, was convicted and sentenced to life imprisonment for killing George Sparlin. Smith’s sole point of appeal is that the evidence was insufficient to support the conviction. We find the evidence was sufficient and affirm the conviction.
Police investigations produced a stream of circumstantial evidence which tied Smith to the shooting. From testimony the jury could have found these facts: Sparlin employed Smith on a part-time basis and on the night in question was working with Smith in his (Sparlin’s) shop where heavy trucks were repaired. The shop was 30 to 40 yards away from Sparlin’s home. Sparlin was last seen alive, other than by Smith, at 3:00 p.m. on February 1 by his step-son, Kevin Hopkins. Hopkins also heard Sparlin talking on the shop phone between 8:00 and 8:45 p.m. on that date. Kevin left the house with his girlfriend shortly after hearing the phone calls.
Chuck Fite was also employed by Sparlin, and on the night of February 1 Fite made a call to Sparlin about 8:00 p.m. asking if Sparlin needed him to come into work. Sparlin promised to come and pick Fite up. After waiting for a time without being picked up Fite called Sparlin again and was informed that Smith was at the shop and they were working. Sparlin informed Fite he would be there to pick him up in a short time. After another period of time Fite called again and Sparlin stated that Smith would pick him up shortly. Approximately 30 minutes later, Smith arrived to pick Fite up in a black four-wheel drive Chevrolet pickup.
Rather than take Fite directly to the shop, Smith, who said he needed to run an errand, drove to the home of David Givens. Givens also employed Smith, and there was testimony that Givens’s wife and Sparlin were having an affair. Givens was not at home when Smith and Fite arrived. Smith then drove Fite to a point near Sparlin’s shop and dropped him off. Fite found Sparlin in the garage dying from gunshot wounds. Fite called an ambulance which arrived five minutes after the call. He also called Sparlin’s mother-in-law, Willene Hopkins, who lived nearby. She arrived within minutes.
Hopkins stated she had heard five or six shots from the direction of the shop around 9:30 p.m. February 1 and a short time later heard a truck leave the vicinity. Joy Batchelor lives about 100 yards from the Sparlin home, and as she was coming home around 9:30 that night, she encountered a black pickup truck coming out from in front of the shop at a high rate of speed. Debbie Batchelor was in the Batchelor home around 9:30 p.m. and heard five or six shots followed by the sound of a truck leaving. Cindy Batchelor was following her mother-in-law, Joy, home from work and also saw the black or dark blue Chevrolet pickup leave the shop at a high rate of speed. She stated the truck she saw was almost identical to one shown in a photograph of Smith’s truck although she could not positively say they were the same.
Catherine Boyette was an EMT attendant on the ambulance which arrived at the shop. She found Sparlin unconscious but alive. He was taken to a hospital in Malvern. He was in a coma. Robert Fletcher, the nursing supervisor who treated Sparlin, observed a bullet fragment fall from one of his wounds. The fragment was later placed in the hands of the sheriff.
Bob Adams, Sheriff of Grant County, arrived on the scene of the shooting on February 1 at approximately 10:30 p.m. The ambulance had taken Sparlin away. At the scene Adams located five spent .22 cartridge casings, each of which was marked with a “C” on the end. After investigating at the scene Sheriff Adams went to Smith’s home. Upon arrival he observed Smith’s truck in the driveway. Adams glanced into the truck and observed a brick of .22 caliber shells of the same brand as those found at the scene of the shooting. When Adams entered the residence Smith denied knowing of the shooting. Adams asked Smith to come to the Sheriffs office with him, and as they were leaving, Adams observed blood on the back of Smith’s trouser leg. He immediately advised Smith of his rights and arrested him.
Smith made a statement at the Sheriffs office in which he denied any involvement in the shooting and explained that he was injured while hunting earlier in the day. He stated he had changed his trousers and burned the ones he had been wearing earlier. He explained his failure to mention the gunshot wound to his leg to persons he spoke with later that evening as being due to the fact that it was not bothering him that much. Smith also denied owning a .22 caliber pistol but said he owned a single shot .22 antique rifle. Later on in the investigation blood on the drivers side seat and a spent .22 cartridge casing were found in Smith’s truck.
Alvin Brown, a Malvern resident, stated he observed Smith firing a .22 automatic pistol in front of Brown’s house, for the purpose of “sighting it in” some three or four weeks before the shooting of Sparlin. Sheriff Adams located additional casings in Brown’s yard which were later identified as having been fired from the same weapon as the bullets which struck Sparlin.
Tom Carden, a U.S. Army Recruiter, stated that three years before the shooting he had traded to Smith a .22 automatic rifle with a rotary clip which would fire 10 or 11 times in succession.
Lisa Sackevicius, a criminalist for the Arkansas State Crime Laboratory, testified that Smith was found to have a low level of the elements which may have been gunshot residue on his hands at the time of his arrest. The tests were not conclusive as there are environmental and occupational sources which could have been sources of the elements.
Dr. David DeJong, a forensic pathologist, performed the autopsy on Sparlin and concluded he died as the result of a gunshot to his head. There were four bullet holes in the body, and three bullets taken from the body were turned over to the Arkansas State Crime Laboratory.
Berwin Monroe, chief firearms and tool marks examiner for the Crime Laboratory, testified that all the bullets submitted were examined by him. He concluded the casings found in the Smith vehicle, the casings found at the Brown residence, the five casings found at the scene of the shooting, and the bullet removed from Sparlin were all fired from the same firearm.
After presentation of this testimony to the jury, counsel for Smith made a directed verdict motion on the basis that there was no physical evidence tying Smith to the commission of the crime and that the evidence was otherwise insufficient to sustain a guilty verdict. The motion was denied.
In defense Smith called his brother, Richard. Richard Smith testified that he had traded a .22 caliber pistol to his brother Darrell at Christmas of 1991 in exchange for the .22 automatic rifle. Samantha Smith, Darrell’s daughter, testified in his behalf that her father left their home about 8:30 p.m. on February 1 to go hunting and didn’t return until around 10:00 p.m. Darrell Smith testified and explained his version of the events of February 1, denying any involvement in the shooting of Sparlin.
The defense rested and renewed the motion for directed verdict. The motion was again denied. The jury deliberated and returned a guilty verdict imposing a sentence of life imprisonment.
1. Sufficiency of the evidence
When the sufficiency of the evidence is challenged, we affirm if there is substantial evidence to support the verdict. Abdullah v. State, 301 Ark. 235, 783 S.W.2d 58 (1990). Evidence is substantial if it is of sufficient force to compel reasonable minds to reach a conclusion that is beyond suspicion and conjecture. Edwards v. State, 300 Ark. 4, 775 S.W.2d 900 (1989). We have long held that circumstantial evidence alone may be sufficient to support a conviction. Hurvey v. State, 298 Ark. 289, 766 S.W.2d 926 (1989). Such evidence must be consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion. Pemberton v. State, 292 Ark. 405, 730 S.W.2d 889 (1987). We review the evidence in thelightmost favorable to the appellee, considering only that evidence which tends to support the verdict. Brown v. State, 309 Ark. 503, 832 S.W.2d 477 (1992); Hooks v. State, 303 Ark. 236, 795 S.W.2d 56 (1990).
There is ample evidence to support the verdict in this case. Shell casings from the murder weapon were found in Smith’s vehicle and a vehicle very similar to his was seen leaving the scene of the murder at a time shortly after the shots were heard. Smith’s explanation for the recent wound in his leg, which he did not even mention to persons he spoke with after he allegedly shot himself, was absurd, and the jury obviously chose not to believe his story.
The credibility of witnesses is a fact question for the trier of fact. The trier of fact alone determines the weight to be given the evidence, and may reject or accept any part of it. Smith v. State, 308 Ark. 390, 824 S.W.2d 838 (1992). Credibility determinations will not be disturbed on appeal when there is substantial evidence to support the fact finder’s conclusion. Campbell v. State, 294 Ark. 639, 746 S.W.2d 37 (1988).
2. Rule 4-3(h) review
As Smith received a life imprisonment sentence, the record has been examined in accordance with Ark. Sup. Ct. R. 4-3(h), and there were no rulings adverse to Smith which constituted prejudicial error.
Affirmed.
Holt, C.J., and Dudley and Glaze, JJ., concur. | [
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Per Curiam.
Lawrence Charles Garrett, by his attorney, has filed a motion for a rule on the clerk.
His attorney, John L. Kearney, admits by motion and brief that the record was tendered late due to a mistake on his part.
We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979).
The motion is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
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Robert H. Dudley, Justice.
Appellant was charged with capital murder. He filed motions to suppress the five incriminating statements he had made to the police. The trial court denied the motions. The result was that the statements could be introduced into evidence at trial. Appellant then entered a plea of guilty to the charge of capital murder, but the plea was conditioned upon this appeal of the trial court’s denial of his motions to suppress the evidence. See A.R.Cr.P. Rule 24.3(b). The trial court sentenced appellant to a term of life without parole, and he now appeals from the rulings on the suppression motions. We uphold the rulings of the trial court. In addition, since this case involves a sentence of life in prison, we must review the record of the trial proceedings for any rulings which were adverse to appellant and which might constitute prejudicial error. Ark. Sup. Ct. R. 4-3(h). Because of the procedure in this case, appellant’s conditional plea of guilty constituted his trial, and there were no rulings adverse to appellant in that trial other than the rulings involving the suppression motions. Since the trial court’s rulings on those motions are upheld, appellant’s guilty plea cannot be withdrawn, and he is without any further direct appeal. He must spend the remainder of his life in the penitentiary without possibility of parole.
The facts necessary to understand the evidentiary rulings on appeal, stated from the view most favorable to the appellee, are as follows. The corpse of a murder victim was found near Harrison on January 26, 1992. After a thorough investigation, the police established appellant as the primary suspect. They additionally found that appellant had multiple prior felony convictions in different states with some of the convictions involving violence as well as escape. Accordingly, the police sent out a bulletin that appellant was wanted for homicide and that he should be considered armed and dangerous. Shortly thereafter, on February 4, appellant telephoned Glenn Redding, the Patrol Commander of the Harrison Police Department, and said, “I hear you are looking for me.” Redding replied that appellant was being sought for capital murder, and that, because the bulletin had notified all police that appellant should be considered armed and dangerous, he should contact an attorney and arrange a peaceful surrender. Appellant responded that he did wish to talk with an attorney before turning himself in. Appellant would not tell Redding his location, but the call was traced to the Paducah, Kentucky telephone exchange. The Kentucky State Police were notified of the call and were given a description of the car appellant was driving.
On the afternoon of February 6, a Kentucky State Policeman spotted appellant, arrested him, handcuffed him, advised him of his Miranda rights, placed him in his police car, and took him to the troop post in Mayfield, Kentucky. The post does not have jail facilities. It has a steel bar attached to a concrete wall, and high risk people are handcuffed to the bar while being processed. Appellant was considered high risk and accordingly was handcuffed to the bar. After only a short while, a detective came into the room, again advised appellant of his Miranda rights, and gave him a written statement of those rights. Appellant waived those rights in writing. All of this took place over a short time span, as appellant was arrested at 3:41 in the afternoon and signed the waiver about an hour and one-half later, at 5:23.
Appellant answered questions without hesitation during a lengthy interview that covers a total of forty-three transcribed pages. In the first thirty-five pages of the interview, appellant admitted that he had been in Harrison and had been drinking with the victim the last night of her life. He stated that he then stabbed her, but that he did so only in self-defense. He stated that he let her out of his car and had no idea of who might have later murdered her. At page thirty-six of the interview, and after appellant had given the above incriminating statement, the Kentucky detective asked appellant to give a more accurate statement of the whole affair. The detective said that appellant would later be questioned in Arkansas, and the officers in Arkansas would not be as friendly as they were because those officers would be from the area where the murder was committed. Appellant did not incriminate himself any further. Shortly after the comment about the officers in Arkansas, the detective said, “I can’t make you say anything.” The appellant responded: “Well, I understand that, and I don’t want to be a smart ass and I don’t want to appear to be one, and I don’t want to be one, but in fifteen years in prison I’m not stupid when we’re talking about things like this.” An attorney was appointed to represent appellant in the extradition proceedings, and appellant waived extradition.
The public defender in Harrison learned that the police were looking for appellant and asked the circuit judge to appoint him as appellant’s attorney. The circuit judge responded that he would do so in the event of appellant’s apprehension. On February 7, the day after appellant had given the incriminating statement in Kentucky, the public defender called the jail in Boone County and left a message that appellant was not to make a statement about the crime. A few minutes later, at 1:50 in the afternoon, the attorney called the jail in Kentucky and asked the jailer to instruct appellant not to give a statement. Immediately thereafter appellant called the attorney, and the attorney instructed him not to make a statement. Meanwhile, Captain Wolfe of the Boone County. Sheriffs Office and Sergeant Bill Gage of the Arkansas State Police had arrived in Mayfield, Kentucky and had taken custody of appellant. In mid-afternoon on the 7th, the three of them started back to Boone County in a police car. They did not ask appellant any questions until they stopped in Dyersberg, Tennessee to get appellant some cigarettes. At that time, 4:11 on the afternoon of the 7th, appellant’s Miranda rights were again read to him. There was no separate waiver of his rights, but the standard form used to advise appellant of his rights contains questions that imply a waiver. For example, appellant’s right to an attorney was explained to him as follows:
“Do you understand that you have the right to talk to a lawyer for advice before we ask you any questions and to have him with you during questioning?” Appellant responded in writing, “Yes sir.”
“Do you understand that if you cannot afford a lawyer, one will be appointed for you before any questioning if you wish, at no cost to you?” Appellant signed, “Yes sir.”
“Do you understand that if you decide to answer questions now without a lawyer present, you still have the right to stop answering at any time? You also have the right to stop answering at any time until you talk to a lawyer?” Appellant signed, “Yes sir.”
Appellant and the officers got back in the car to resume the journey to Boone County. Over the next hour or so appellant told the officers more about the murder. He said he and the victim had been drinking heavily, and she tried to kill him with a butcher knife. He said he took it away from her and stabbed her once in the back and twice in the front. He told the officers the location of the trash dumpster where he had disposed of the knife, the victim’s purse, and part of her clothing. By 6:20 that afternoon, they had reached Paragould and stopped at a restaurant. There, the officers again advised appellant of his Miranda rights. In doing so, they used the same form they had used earlier in the afternoon. Appellant signed a written statement that was a redaction of his earlier oral statement. They got to Harrison later that night, Friday the 7th, and appellant was placed in jail. On the following morning, February 8, Captain Wolfe gave appellant the same Miranda warnings, and appellant gave a lengthy and incriminating recorded interview. He was arraigned on Monday, February 10, and a lawyer was appointed to defend him.
About a month later, on March 4, appellant asked to speak to Captain Wolfe about a problem he was having in receiving his mail. After discussing the problem about the mail, appellant asked some questions about the murder and started to discuss the crime scene. Wolfe testified that he told appellant that he needed to wait until his attorney arrived before talking about the murder and that he did not want to violate appellant’s rights. The jailer, Raymond Howe, confirmed that appellant initiated the conversation about the crime scene. Appellant then volunteered a further statement about the crime scene.
Appellant’s points of appeal involve the Fifth and Sixth Amendments as well as the Arkansans Rules of Criminal Procedure. The arguments can be most clearly addressed by using the chronological order of the statements. The first statement was the one made to the detective in Kentucky. Appellant contends that this statement should have been suppressed because it was taken in violation of his Fifth Amendment rights. In order for a custodial statement to be admissible a defendant must have made a voluntary, knowing, and intelligent waiver of his Miranda rights. Mauppin v. State, 309 Ark. 235, 831 S.W.2d 104 (1992). The inquiry into the a waiver of those rights has two distinct components. Id. The first involves voluntariness. This component of the inquiry concerns whether appellant made a free choice, uncoerced by the police, to waive his rights. Id. The second component of the inquiry involves whether the defendant made the waiver knowingly and intelligently. Id.
Appellant first contends that the statement made in Kentucky was the product of police coercion. He argues that because he was handcuffed to a bar and because the police told him that a later interview in Arkansas would be conducted by less friendly police, he was coerced into making the statement. The argument is wholly without merit. There was neither misconduct nor coercion by the Kentucky officers. The bulletin had informed them that the appellant was to be considered armed and dangerous. He had a prior conviction for escape and had convictions for crimes against persons. In fact, at that time he was on parole from the Nevada Department of Prisons as the result of a conviction for attempted murder. There was no lockup room at the post. The restraint was the result of appellant’s prior crimes and was reasonable under the circumstances. It was not designed to create, nor should it have created the impression that something bad would happen if the appellant did not confess. The appellant had already made the incriminating part of the statement before the detective told appellant that the police in Kentucky would be friendlier than the police in Arkansas. Thus, the detective’s statement could not have coerced appellant into making the statement. Appellant’s later comment, that he had spent fifteen years in prison and knew that he did not have to say anything, is overwhelming proof of that fact.
Appellant next argues that the trial court erred in admitting the statement made in Kentucky because it violated his Fifth Amendment right to make only a knowing waiver. He contends that he did not understand the consequences of the waiver because the Kentucky officer did not explain the full range of penalties for the offense of capital murder in Arkansas. Appellant does not cite any cases, nor are we aware of any, that uphold his argument that at the time of making an incriminating statement, as distinguished from the time of making a guilty plea in court, a suspect must be advised of the exact range of penalties to which he might be subjected. Such a requirement would often present an impossible burden for the police. Often they do not know what formal charge will eventually be filed by the prosecutor, and most often they do not know what the suspect will say. Accordingly, they could not possibly advise a suspect of the exact range of penalties he will face. Even so, in this case, appellant clearly understood that he had been arrested on a charge of capital murder and that he was being asked to make a statement of fact about his involvement in the murder. He knew that it was serious crime and that he faced serious consequences. He had been arrested for, and convicted of, multiple crimes. He under stood the system and what he was doing. The trial court ruled that knowledge, taken together, was sufficient for appellant to clearly understand the consequences of the waiver. The ruling of the trial court was not clearly erroneous.
In reviewing the admissibility of incriminating statements, we make an independent determination based on the totality of the circumstances and reverse the trial court’s ruling only if it was clearly erroneous. Segerstrom v. State, 301 Ark. 314, 783 S. W.2d 847 (1990). We have no hesitancy whatsoever in holding that the trial court’s ruling on the motion to suppress this statement was not in error.
Appellant next contends that the trial court erred in its rulings on the admissibility of the statements taken on the return trip to Arkansas and in admitting the recorded statement taken by Captain Wolfe on the 8th. The first of these arguments is a Sixth Amendment argument. In it, appellant contends that, after an attorney was appointed for him in Kentucky, his Sixth Amendment right to advice by that counsel attached unless it was waived, and that he did not waive the right to counsel with that attorney. The argument is without merit. The attorney was appointed for the purpose of advising appellant on the extradition proceedings. The core purpose of the Sixth Amendment guarantee of counsel is to provide assistance to criminal defendants at trial and at all critical pretrial proceedings. United States v. Gouveia, 467 U.S. 180, 188 (1984). An extradition proceeding has only a “modest function,” not involving the question of guilt or innocence, and is not a “criminal proceeding” within the meaning of the Sixth Amendment. See Judd v. Vose, 813 F.2d 494 (1st Cir. 1987) (and cases cited therein).
Appellant next makes a Fifth Amendment argument that these statements should have been suppressed. He contends that on the trip to Harrison the officers advised him of his Miranda rights, but failed to ask him if he waived those rights. He contends the same occurred the next day when he gave the recorded statement to Captain Wolfe. His contention is that he simply did not waive his rights, and it was the State’s burden to show that he had so done. We have held that a confession may be obtained on the basis of an implied waiver of Miranda rights. Ward v. State, 308 Ark. 415, 827 S.W.2d 110, cert. denied, 113 S. Ct. 124 (1992). In this case, the form used to advise appellant of his rights included questions which the appellant answered. The clear implication of the answers is that appellant waived the right to remain silent and waived the right to discuss matters with an attorney or have an attorney present.
However, it is not necessary for us to make our holding based solely upon an implied waiver, because there simply is no constitutional requirement that Miranda warnings be repeated each time a suspect is questioned. Cope v. State, 292 Ark. 391, 730 S.W.2d 242 (1987); Wyrick v. Fields, 459 U.S. 42 (1982). Obviously, if there is no constitutional requirement that a suspect be warned of his rights each time he is questioned, then there is no requirement that he waive those rights each time he is questioned. Here, the appellant was given adequate warning of his Miranda rights by the Kentucky detective on the afternoon of February 6. He waived those rights in writing at that time. Early the next afternoon a public defender, who eventually would be appointed to represent appellant, advised him not to make a statement. There were no other occurrences which might cause appellant to forget any of the warnings before the commencement of trip to Boone County in mid-afternoon. There is no reason that the warning and waiver by the Kentucky officers on the afternoon of the 6th was not, standing alone, sufficient warning and waiver for the statements made on the trip to Harrison on the 7th. The critical question is whether the accused understood the consequences of a decision to forego the aid of counsel. Patterson v. Illinois, 487 U.S. 285 (1988). The trial court did not err in ruling that the appellant understood the consequences.
The next day, February 8, Captain Wolfe gave appellant the same Miranda warnings as he gave on the 7th. Again, there was no express waiver. Appellant gave an incriminating statement that was recorded. He argues the trial court erred in refusing to suppress this statement because there was no waiver. Again, because of the short interval of time between the formal waiver in Kentucky and this statement and the lack of any extraordinary intervening occurrence, the prior waiver was sufficient. We cannot say that the trial court erred in ruling that appellant understood the consequences of foregoing counsel.
Appellant next argues that the trial court erred in refusing to suppress the incriminating statement that he gave on March 4, which was after counsel had been appointed and after he had been arraigned. The trial court found that appellant initiated the conversation, volunteered the statement without any questioning, and, consequently, there was a waiver of appellant’s Sixth Amendment right to counsel. See Ward v. State, 308 Ark. 415, 827 S.W.2d 110, cert. denied, 113 S. Ct. 124 (1992). The trial court’s finding was based on the testimony of Captain Wolfe and jailer Howe. Appellant disputes that testimony. The issue was one of credibility, and it is in the province of the finder of fact to determine the credibility of witnesses. Atkins v. State, 310 Ark. 295, 836 S.W.2d 367 (1992). There was substantial evidence to support the findings of fact made by the trial court. Accordingly, we hold the trial court did not err in refusing to suppress the statement of March 4.
Appellant makes another constitutional argument involving both the Fifth and Sixth Amendment rights to counsel. In this argument appellant admits that a waiver of Miranda rights would constitute a waiver of Fifth Amendment rights, but contends that something more is required for a valid waiver of the Sixth Amendment right to counsel. For example, in United States v. Mohabir, 624 F.2d 1140 (2d Cir. 1980), the court stated that once the Sixth Amendment right to counsel attached, “a valid waiver ... to have counsel present during post-indictment must be preceded by a federal judicial officer’s explanation of the content and significance of this right.” Id. at 1153. In Duncan v. State, 291 Ark. 521, 726 S.W.2d 653 (1987), we indicated that we might also require something more than a waiver of Miranda rights to constitute a waiver of Sixth Amendment Rights. However, those cases were decided before the Supreme Court of the United States determined whether a waiver of Miranda rights would constitute a waiver of both the Fifth and Sixth Amendment rights. In Patterson v. Illinois, 487 U.S. 285 (1988), the Court decided that issue and expressly held that “whatever warnings suffice for Miranda’s purposes will also be sufficient in the context of postindictment [Sixth Amendment] questioning.” Id. at 298. Consequently, in this case the Miranda warnings and the waiver of the Miranda rights was sufficient to waive appellant’s Fifth as well as Sixth Amendment rights.
Appellant’s final constitutional argument is that his Sixth Amendment rights were violated when the police failed to follow his lawyer’s instructions to not question him. The argument is without merit for a number of reasons. First, appellant had neither employed the attorney, nor had the attorney been appointed to represent him, at the time the attorney spoke to the jailer. The attorney simply did not represent appellant at the time he gave the instruction. Second, appellant had already made the statement to the Kentucky detective the day before the attorney made his call to Kentucky. Even so, the police told appellant of the call, and, in fact, appellant returned the attorney’s call, and the attorney told him not to make any statements. Appellant subsequently chose to ignore counsel’s advice. He now argues that the trial court erred in refusing to suppress the statement because the police failed to follow the attorney’s instructions. It is not clear that the police failed to follow the attorney’s instructions, but even if he were appellant’s attorney and might have given instructions to the police which they failed to follow, we would not reverse on this point. The failure of police to follow counsel’s instructions does not affect the validity of an otherwise valid waiver. Mitchell v. State, 306 Ark. 464, 816 S.W.2d 566 (1991); Moran v. Burbine, 475 U.S. 412 (1986).
Appellant’s final argument involves Rule 8.1 of the Arkansas Rules of Criminal Procedure, which provides that an arrested person must be taken before a magistrate without unnecessary delay. Appellant was arrested in Kentucky on Thursday, February 6, and returned to Boone County on the night of Friday, the 7th. He was arraigned on February 10, the following Monday. In several cases we have held that a similar delay over the weekend was not unreasonable. Johnson v. State, 307 Ark. 525, 823 S.W.2d 440 (1992); Owens v. State, 300 Ark. 73, 777 S.W.2d 205 (1989); Brown v. State, 276 Ark. 20, 631 S.W.2d 829 (1982). Even if the delay might possibly be considered unreasonable, these statements would not be suppressed because there was no causal relationship between the giving of the statements and a delay in the first appearance. Owens v. State, 300 Ark. 73, 777 S.W.2d 205 (1989). Here, the first, four custodial statements were not in any way related to a delay. Appellant made the first statement in Kentucky within three hours of his arrest. The next two statements were made the next day on the way back to Boone County, and appellant could not have been taken before the local magistrate at that time. The fourth statement was given the next day. In short, the statements were given before there was any possibility that they were given as a result of an unreasonable delay.
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Otis H. Turner, Justice.
This appeal involves the interpretation of certain provisions of the Arkansas income tax laws relating to corporate income taxes. The appellant, the Kansas City Southern Railway Company, deducted dividends received from its subsidiary, L&A Railroad, as nontaxable or exempt income for the 1982 taxing year. Kansas City Southern had a net loss in the 1982 tax year and carried this loss forward on its 1983 Arkansas income tax return. However, in computing the net operating loss to be carried forward, it did not add back to its gross income the nontaxable dividend income from its subsidiary. This resulted in an assessment by the Arkansas Department of Finance and Administration of additional taxes. A penalty for the appellant’s failure to file an estimate of its 1984 taxes was added, as well as a late filing penalty that was assessed on its 1983 tax return.
The appellant challenged both the state’s method for calculating the net operating loss and its assessment of penalties. The controversy was submitted to the chancellor for motion on summary judgment, and from a ruling favorable to the state of Arkansas, this appeal is taken, and we affirm.
For reversal, the appellant alleges three errors in the decision of the chancellor:
First, the chancellor’s interpretation of the words “all nontaxable income” as used in Ark. Code Ann. § 26-51-427(2) (1987 & Supp. 1989) is not reasonable, logical or in accordance with the ordinary usage of language;
Second, the chancellor should have interpreted Ark. Code Ann. § 26-51-404 (1987 & Supp. 1989) as amending Ark. Code Ann. § 26-51-427(2) when she considered whether or not exempted dividends received should be included in gross income in computing net operating loss;
Third, the appellant’s interpretation of the statutes was reasonable, and although it might be found that a tax was due and owing, no penalty should have attached and in no event should nonpayment have been attributed to willful neglect.
We must consider together the applicable statutory provisions in resolving the ultimate issue in this case — whether the appellant is required to sweep back into gross income the tax-exempt dividend income from its subsidiary in arriving at a net operating loss. Including exempt dividends in gross income, in this instance, will eliminate the net operating loss and the resulting benefits in carrying such loss forward to succeeding tax years.
Arkansas Code Annotated § 26-51-404(b)(9), enacted as a part of Act 570 of 1965, provides:
(b) The term “gross income” does not include the following items, which shall be exempt from taxation under this act:
(9) Dividends received by a corporation doing business within this state from a subsidiary if at least ninety-five percent (95%) of the subsidiary’s capital stock is owned by a corporation doing business within this state
Arkansas Code Annotated § 26-51-427(2)(A), enacted as a part of Act 147 of 1957, provides:
(2). . . [T]he term “net operating loss” is defined as the excess of allowable deductions over gross income for the taxable year, subject to the following adjustments:
(A) There shall be added to gross income all nontaxable income, not required to be reported as gross income, as provided by law, less any expenses properly and reasonably incurred in earning nontaxable income, which expenses would otherwise be nondeductible. . . .
We must determine whether or not the two quoted statutory provisions can be read together and applied without reaching a “strained, illogical, and unreasonable” result, as the appellant contends.
The appellant concedes that these statutes are not ambiguous; therefore, unless the statutes, both relating to the same subject, are in conflict and cannot be reconciled, they are to be read together, and each is to be given its intended effect. Ragland v. Yeargan, 288 Ark. 81, 702 S.W.2d 23 (1986). See also, Wells v. Heath, 274 Ark. 45, 622 S.W.2d 163 (1981); Cummings v. Washington County Election Commission, 291 Ark. 354, 724 S.W.2d 486 (1987). In the absence of ambiguity, the statute must be given effect as it reads without resorting to construction or interpretation. Ragland v. Meadowbrook Country Club, 300 Ark. 164, 777 S.W.2d 852 (1989); Townsend v. State, 292 Ark. 157, 728 S.W.2d 516 (1987); Cook v. Bevill, 246 Ark. 805, 440 S.W.2d 570 (1969).
The appellant would draw a distinction between the terms “exempt income” and “non-taxable income” on the basis that income, once exempt, is exempt from taxation for all purposes. We decline to give such an interpretation to the term.
Here, the income of the subsidiary, L&A Railroad, was reported and taxed as an entity separate from its parent company, Kansas City Southern. This method of tax reporting was chosen by the appellant for its own reasons (which are neither known nor relevant here), although a consolidated return could have been filed. The income of the subsidiary was then paid to the parent in the form of dividends and was statutorily exempt from taxation as income to the parent. If, however, the parent sustained a net operating loss that could be carried over to subsequent tax years, then — and only then — for the restricted purpose of computing such net operating loss, all non-taxable income must be added back into income and considered.
The privilege of a net operating loss carry-forward as a deduction in subsequent tax years is a tax privilege existing through legislative grace. Skelton v. B.C. Land Co., Inc., 256 Ark. 961, 513 S.W.2d 919 (1974). The same authority certainly has the power to dictate how and to what extent such a privilege may then be exercised.
This appears to be a case of first impression in Arkansas. The appellant makes a compelling argument, citing authority from other jurisdictions. A case which appears to be directly on point is Midland Financial Corp. v. Wisconsin Dept. of Revenue, 116 Wis.2d 40, 341 N.W.2d 397 (1983). The statutes at issue in Midland, though similar to ours, were held by the Wisconsin court to be ambiguous. They are therefore distinguishable from the unambiguous Arkansas provisions. As the chancellor in the present case declared: “I am bound to apply an unambiguous statute as it is written.” There could not be a more succinct statement of the application of this well-established principle.
We also hold the chancellor’s imposition of statutory penalties to be correct. The appellant’s 1983 tax return was due on or before September 15,1984, following the granting of a six-month extension. The return was filed, however, on October 15, 1984.
The effective law at the time, Ark. Code Ann. § 26-18-208(1) (1987), provided that upon a taxpayer’s failure to file a required return, unless it was shown that the failure was due to reasonable cause and not to willful neglect, five percent of the amount of the tax for each month the return was delinquent would be added up to a maximum of 25 percent.
When the appellant filed its late return for the 1983 tax year, it admitted a tax liability of $44,931.00. There is no reasonable and sufficient explanation for the appellant’s delinquency. The ensuing penalty assessed by the appellee and upheld by the chancellor was mandated by the language of the statute and was therefore appropriate.
An additional penalty was assessed by the appellee for the appellant’s underestimated taxes for 1984. Arkansas Code Annotated § 26-51 -911 (a) (1987) provides that every taxpayer subject to income tax shall file a declaration of estimated tax for the income year if the taxpayer reasonably expects the tax liability to exceed $100.00. Arkansas Code Annotated § 26-51-912 (1987) then provides a penalty of one-half of one percent per month of the amount of the underestimate, in addition to the amount of the tax, unless the taxpayer estimates the tax as the same amount for the preceding income year. In that event the estimate is sufficient to avoid a penalty.
The appellant’s 1983 return admitted some $45,000 in taxes due. It could hardly be said that the appellant reasonably believed that its income tax liability for 1984 would not have exceeded the $100 statutory exemption for filing tax estimates.
We find no error and affirm the decree of the chancellor in all respects.
Price, J., not participating. | [
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Jack Holt, Jr., Chief Justice.
The sole issue in this appeal is whether the appellant, Newton Donald Jenkins, Sr., was denied his right to speedy trial. We hold that he was not and affirm.
On April 8,1988, Jenkins, along with two other defendants, was arrested and charged with five counts of theft by deception (counts one through five), one count of fraud (count six), and one count of making false statements to the Commissioner of the Arkansas Securities Department (count seven). On July 1,1988, he pleaded not guilty.
On September 6, 1988, Jenkins filed a motion for a twelve-day extention of time from September 7, 1988, until September 19, 1988, to file pretrial motions. The trial court granted this motion.
On September 19, 1988, Jenkins filed a motion to sever defendants, and the State responded that the motion was unwarranted. On September 27,1988, the case was passed for two days at Jenkins’ request.
On September 29,1988, an omnibus hearing was held, and the court denied Jenkins’ motion for severance of the defendants. However, with the agreement of parties, the court severed the counts: Counts one, five, six, and seven were to be tried separately; and counts two, three, and four were to be tried together. Trial was set on all counts, except six and seven, for the week beginning December 12, 1988.
On December 12, 1988, counts two, three, and four were tried as scheduled, and a mistrial was granted as to those counts. Counts one and five were not tried on December 15 and 16,1988, as originally scheduled.
On January 24,1989, an omnibus hearing was held concern ing trial of counts six and seven. The court stated, “Give me a trial date.” The case coordinator asked, “How fast do you want to do it?” Appellant’s attorney replied, “May, if possible, Judge.” The prosecutor replied, “March, if possible.” The court stated, “When are we setting things?” The case coordinator responded, “March.” Defense counsel then stated that he needed more time. Thereafter, the court asked if the omnibus hearing could be held that day. Defense counsel responded that he needed to file some motions first. As a result, the court set the omnibus hearing for April 4 and trial for April 19, 1989.
On January 31, 1989, the State filed an amended information charging Jenkins with one count of theft by deception, one count of fraud, and one count of making false statements to the Commissioner of the Arkansas Securities Department. These counts were the same as counts one, six, and seven of the original information. The omnibus hearing was held on April 4,1989, as scheduled.
On April 13, 1989, Jenkins filed a motion to dismiss on the ground that his right to speedy trial had been denied since twelve months had expired since the date of his arrest. At the conclusion of a hearing, the court denied the motion, finding, in part, that defense counsel wanted to go to trial at a later date than scheduled and that “it was put off” by “continuance or acquiescence.”
On April 19,1989, Jenkins was tried on counts two and three and sentenced to five years imprisonment and a fine of $22,500. On June 1,1989, he pleaded nolo contendere to count one, with reservation of the right to appeal his conviction, along with his other convictions, on speedy trial grounds. If successful, he would be permitted to withdraw his plea and be discharged. He was sentenced to five years on count one, the sentence to run concurrently with the sentence on his other convictions.
For reversal, Jenkins contends that the trial court erred in denying his motion to dismiss the charges against him based upon the denial of his right to speedy trial. We hold that Jenkins was not denied his right to speedy trial on counts two and three in that he would have been speedily tried on these counts but for his request in January 1989 to go to trial in May 1989. Accordingly, we need not address whether any other periods of delay are excludable. As for Jenkins’ contention concerning count one, to which he pleaded nolo contendere, we do not reach the merits of his argument because we find that he is not authorized by our rules of criminal procedure to appeal from this plea.
Arkansas R. Crim. P. 28.1(c) provides:
Any defendant charged after October 1, 1987, in circuit court and held to bail, or otherwise lawfully set at liberty, including released from incarceration pursuant to subsection (a) hereof, shall be entitled to have the charge dismissed with an absolute bar to prosecution if not brought to trial within twelve (12) months from the time provided for in Rule 28.2, excluding only such periods of necessary delay as are authorized in Rule 28.3.
The date Jenkins was arrested, April 8,1988, began the time period for speedy trial. Ark. R. Crim. P. 28.2(a). Trial was held on counts two and three on April 19, 1989, eleven days past the twelve-month time limit for speedy trial.
Once the accused has shown that the trial is to be held after the speedy trial period has expired, the State has the burden of showing the delay was legally justified. Nelson v. State, 297 Ark. 58, 759 S.W.2d 215 (1988); Allen v. State, 294 Ark. 209, 742 S.W.2d 886 (1988).
We find that the State has met its burden as it is readily apparent from the record that counts two and three would have been tried in March, well within the time for speedy trial, but for defense counsel’s request at the January 24, 1989, omnibus hearing, that the case be tried in May, after the time for speedy trial had expired. Moreover, he acquiesced in the court’s decision to hold the trial on April 19, 1989.
Where an accused is offered a speedy trial but requests that the case be tried at a later date, and that delaying act is memorialized by a record taken at the time it occurred, he cannot complain that his right to speedy trial was denied. See Key v. State, 300 Ark. 66, 776 S.W.2d 820 (1989). Sec also Campbell v. State, 264 Ark. 372, 571 S.W.2d 597 (1978). This holding is based upon the rule that one cannot agree with a trial court’s ruling and then attack it on appeal. Key, supra.
We do not reach the merits of Jenkins’ contention concern ing count one, to which he pleaded nolo contendere, because we hold that, under the circumstances, he cannot appeal from this plea.
Except as provided for in Ark. R. Crim. P. 24.3(b), there shall be no appeal from a plea of guilty or nolo contendere. Ark. R. Crim. P. 36.1. Under Rule 24.3(b), a defendant may enter a conditional plea of guilty or nolo contendere, reserving the right, on appeal from the judgment, to review of an adverse ruling on a motion to suppress evidence. Simply put, this Rule does not provide for a conditional plea of nolo contendere, with reservation of the right to review of an adverse speedy trial determination. See Pickett v. State, 301 Ark. 345, 783 S.W.2d 854 (1990); Jenkins v. State, 301 Ark. 20, 781 S.W.2d 461 (1989).
Granted, the court, the prosecutor, and the defense counsel all agreed that Jenkins could enter a conditional plea, reserving the right to appeal the trial court’s adverse speedy-trial ruling. Notwithstanding this agreement, we cannot reach the merits of Jenkins’ contention since our rules clearly do not provide for such an appeal.
Affirmed.
Price, J., not participating. | [
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Per Curiam.
The petitioner Steve Edward Russaw was convicted of first degree battery and sentenced to ten years imprisonment and fined $10,000. After his jury trial, he requested that, instead of the fine, the trial court sentence him to another year of commitment to be served consecutively to the ten year sentence. The trial court first considered the request but then ruled that since his family indicated that they could raise that amount of money for an appeal bond, he should pay the fine which the jury had recommended. The conviction was affirmed by the Arkansas Court of Appeals in an opinion not designated for publication. Russaw v. State, CACR 88-289 (August 23,1989). The petitioner now seeks permission to proceed in circuit court for post-conviction relief.
The petitioner alleges that on October 4,1989, after his conviction was ¿(firmed, he was taken before the trial court where the trial court withdrew the $10,000 fine and imposed a one year sentence to be served consecutively to the first ten year sentence. The petitioner argues that the court was acting without its jurisdiction to impose two sentences for the same crime and that he was denied a fair trial because he was not represented by counsel for the October 4 hearing. The hearing does not appear in the transcript. Since there is no certified record from which we can determine whether the petitioner has raised an issue cognizable under Rule 37, we grant him permission to proceed in circuit court with a petition limited to the issue of whether the trial court had jurisdiction to modify the sentence once it had been put into execution. See Glick v. State, 283 Ark. 412, 677 S.W.2d 844 (1984).
Petition granted. | [
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Robert H. Dudley, Justice.
The appellant was convicted of rape and kidnapping. There is no merit in either of his points of appeal, and we affirm both convictions.
Appellant’s first argument is that the trial court erred in admitting testimony about a serological examination of his underwear. The short answer to the argument is that there was no testimony whatsoever about a serological examination of appellant’s underwear, nor even whether he wore any. We assume appellant has not confused his underwear with the victim’s semen-stained underwear, which was admitted into evidence without objection, and from which blood typing was obtained. We can only assume that appellant meant to argue that the serological test results of his pants and of his blood sample should not have been admitted into evidence. If that is his intended argument, it has no merit.
With respect to the serological test results on his pants, appellant did not preserve his argument for appeal because there was no objection to the introduction of the test results. Appellant apparently recognizes that no objection was made below on this evidence and argues that it was not necessary for him to renew his objection; however, that argument is fallacious. He never made the original objection about serological test results conducted on his pants.
The transcript reflects that at the time the pants were introduced, appellant’s counsel asked to approach the bench and an “off-the-record discussion” followed. The trial court then stated, “Let the record show that over the objection of the defendant, we will receive State’s Exhibit Numbers 2 [brown coat], 3 [man’s white shirt], 4 [black pair of men’s pants]. . . .” We have often condemned the practice of off-the-record discussions because it is impossible for us to know the basis of the objection. Dumond v. State, 294 Ark. 379, 743 S.W.2d 779 (1988). Such an objection is clearly inadequate to preserve an argument that the subsequent admission of serological test results, which were conducted on the pants, was error.
Blood was taken from the appellant and typed. The prosecutor asked the crime-lab serologist if she knew appellant’s blood type. Appellant’s counsel objected and asked to approach the bench. The transcript again reflects another “off-the-record” discussion, followed by the trial court stating, “The court’s going to sustain the objection and ask you to lay a better foundation.” A foundation was then laid.
Appellant may be arguing that foundation was inadequate. As in Munnerlyn v. State, 264 Ark. 928, 576 S.W.2d 714 (1979), appellant does not allege that the samples had been tampered with and there is nothing in the record to suggest such a possibility. It is not necessary that every moment from the time evidence comes into the possession of a law enforcement agency until it is introduced at trial be accounted for by every person who could have conceivably come into contact with it. It is only necessary that the trial judge, in his discretion, be satisfied that the evidence presented is genuine and, in reasonable probability, has not been tampered with. The trial judge did not abuse his discretion in allowing the result of the serological test of appellant’s blood sample.
Appellant’s next argument concerns sufficiency of the evidence. He contends that he was not sufficiently identified, and there was not sufficient evidence of penetration of the victim. There is no merit in either argument.
The victim expressly identified the appellant as her attacker. The testimony of the victim alone is sufficient identification. However, in addition to the victim’s identification, two (2) other witnesses saw appellant with the victim at the time of the crimes, and a policeman caught appellant just as he left the victim. Further, his blood type matched the blood type found in the semen on the victim’s underwear. The identification was sufficient.
With regard to penetration, the victim testified that appellant took off her pants, got on top of her, and “sticks his thing in there,” . . . “he penetrated me.” The language is sufficient evidence of rape. There is no real doubt about the meaning of the testimony.
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Per Curiam.
Thomas B. Devine III, Deputy Public Defender for the Sixth Judicial District moves to be relieved as counsel in this appeal. Billy Ray Scott, the appellant, was convicted of first degree murder and sentenced to 200 years imprisonment. At the conclusion of the trial Scott questioned the effectiveness of Devine, who was his counsel at the trial. The trial court held a hearing on the matter, treating it as a petition for relief pursuant to the provisions of former Ark. R. Crim. P. 37. The court found counsel not to have been ineffective and denied the petition. The record, including a transcript of the hearing on ineffectiveness of counsel, has been lodged in this court.
Mr. Devine’s motion to be relieved as counsel is granted. Debby D. Cross, Esquire, is appointed counsel on appeal. The briefing schedule provided in our Rule 11 (a) shall commence this date. | [
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Jack Holt, Jr.,
Chief Justice. The appellant, CDI Contractors, Inc. (CDI), an Arkansas corporation with its principal place of business located in Pulaski County, Arkansas, is the general contractor for an office project in Jackson, Mississippi. CDI awarded to the appellee, Goff Steel Erectors, Inc. (Goff), a foreign corporation not qualified to do business in Arkansas, a subcontract to install reinforcing steel in the office project.
CDI maintains that Goff failed to perform its obligations under the subcontract and filed suit in the Pulaski County Circuit Court. The trial court dismissed the complaint on the basis that Goff was not subject to the personal jurisdiction of the Arkansas courts. The trial court further found that, even if it did have jurisdiction pursuant to the long-arm statute, Pulaski County was not the proper venue for the suit.
CDI appeals from that order on two points of error: 1) that the trial court erred in dismissing its complaint since the trial court does have personal jurisdiction over Goff, and 2) that the trial court erred in dismissing its complaint since Pulaski County is the proper venue for this case.
We disagree and affirm the trial court.
CDI contends that Goff is subject to the personal jurisdiction of the Arkansas courts. Ark. Code Ann. § 16-4-101(C)(1) (1987) provides for personal jurisdiction based upon conduct and states that “[a] court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a (cause of action) (claim for relief) arising from the person’s: (a) Transacting any business in this state . . . .”
The purpose of this section is to permit Arkansas courts to exercise the maximum in personam jurisdiction allowable by due process. Martin v. Kelley Elec. Co., 371 F.Supp. 1225 (E.D. Ark. 1974); SD Leasing, Inc. v. Al Spain & Assoc., Inc., 277 Ark. 178, 640 S.W.2d 451 (1982). We noted in SD Leasing, Inc., supra, that:
International Shoe Co. v. Washington, 326 U.S. 310 (1945) set out the due process requirements for personal jurisdiction: In order for a valid judgment to be rendered against a nonresident defendant not served within the forum state, due process requires that “certain minimum contacts” exist between the nonresident and the state “such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ”
A single contract can provide the basis for the exercise of jurisdiction over a nonresident defendant if there is a substantial connection between the contract and the forum state. See McGee v. International Life Ins. Co., 355 U.S. 220 (1957).
CDI’s reliance on SD Leasing, Inc., supra, however, is misplaced. In SD Leasing, Inc., the appellee, a Florida corporation, defaulted on a non-cancelable lease agreement between it and the appellant, SD Leasing, Inc., an Arkansas corporation, and the appellant filed suit in Arkansas to recover the balance due. The trial court granted the appellee’s motion to dismiss for lack of personal jurisdiction; we reversed on appeal on the basis that there were sufficient minimum contacts to meet due process requirements for personal jurisdiction of the non-resident appellee.
The contacts were sufficient in SD Leasing, Inc., where (1) the lease, although executed in Florida, was mailed to the appellant in Arkansas where it was reviewed, approved, and accepted, (2) the appellee mailed its monthly payments directly to appellant in Arkansas, as well as two memos informing the appellant it was going out of business, (3) the lease agreement specifically provided that the lease “shall be governed by and construed under the laws of the State of Arkansas,” and (4) the lease provided that in the event of default, the lessee would consent to and be subject to the jurisdiction of the courts of the State of Arkansas to enforce the terms of the lease.
In this case, Goff submitted a bid by telephone to CDI for the subcontracting job on the Mississippi office project. CDI agents went to Mississippi, where the president of Goff signed the contract, in regard to formalizing the contract. The contract was mailed to CDI, and CDI contends that the contract was executed in Pulaski County, Arkansas; Goff contends that the contract was executed in Jackson, Mississippi. The contract provided that Goff must mail its payment requests to Arkansas, but did not contain any provisions concerning jurisdiction or applicable law for dispute resolution.
In Mountaire Feeds, Inc. v. Agro Impex, 677 F.2d 651 (8th Cir. 1982), it was held that the use of arteries of interstate mail, telephone, railway, and banking facilities is insufficient, standing alone, to satisfy due process in asserting long-arm jurisdiction over a nonresident corporation.
In reviewing a trial court’s decision on a motion to dismiss, we treat the facts alleged in the complaint as true and view them in a light most favorable to the plaintiff. Mid-South Beverages, Inc. v. Forrest City Grocery Co., 300 Ark. 204, 778 S.W.2d 218 (1989) (citing Battle v. Harris, 298 Ark. 241, 766 S.W.2d 431 (1989)).
We find that Golfs telephone and mail transactions do not, standing alone, satisfy the minimum contacts required by due process to bring it within Arkansas’s jurisdiction.
We need not address GDI’s second point of error, relating to venue, due to our finding of a lack of jurisdiction.
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Tom Glaze, Justice.
This case involves a paternity proceeding which was originally heard and decided by a paternity referee and the Washington County Judge. On November 2,1988, they entered an order finding appellant the father of Mallory Cate, born on January 24,1987, and among other things, appellant was ordered to pay $25.00 per week. On December 2,1988, appellant filed what he labeled a “prayer for an appeal” to the Washington County Circuit Court, and the county judge by court order granted the appeal on the same date. On January 16, 1989, appellee, Mallory’s mother, moved to dismiss appellant’s appeal, stating the appellant had failed to file an appeal bond as required by law. Appellant responded, asserting no bond was necessary. By letter opinion, the Washington County circuit judge held that an appeal bond was required, and subsequently entered an order dismissing appellant’s appeal to circuit court upon finding the appellant had failed to post such a bond.
The sole issue here is whether appellant was required to file an appeal bond in order to perfect an appeal to circuit court from the referee’s and county judge’s November 2, 1987 order. Two statutes, Ark. Code Ann. §§ 9-10-106 and -10-117 (1987), bear on this question and set forth the appeal procedure in paternity actions to the circuit court. Section 9-10-117 was enacted in 1875 and subsection (b) of that statute provides that no appeal shall be granted until an appeal bond, with affidavit, is filed. That provision has been interpreted to mean that there could be no valid appeal without the filing of a bond. See Epperson v. Sharp, 222 Ark. 456, 261 S.W.2d 267 (1953).
Appellant contends that § 9-10-106, which was enacted in 1977 and amended in 1983, authorized the county court to appoint a paternity referee to hear paternity proceedings and, in so doing, provided for an appeal procedure that required no bond. In making his argument, appellant cites § 9-10-106(d)(1) and (d)(4) which provide as follows:
(d)(1) Appeals from any decision of the paternity referee may be taken as a matter of right to the circuit court in the county in which the case was decided by causing the record to be filed with the clerk of the circuit court within thirty (30) days after the decision of the paternity referee is rendered.
* * * *
(d)(4) Every person shall have the right to post an appeal bond in such amount and under such conditions as the paternity referee shall, in his discretion, determine.
Appellant does not contend that § 9-10-106 supersedes § 9-10-117, but instead argues that when a county judge decides the paternity issue, the party appealing the decision must post a bond; however, if a referee decides the issue, no bond is necessary. We find no logic to such reasoning.
First, appellant’s argument ignores the language in § 9-10-106(c) which provides the decisions of the paternity referee shall be binding upon the county judge and such order or judgment shall have the same effect as a decision by the county judge. Clearly, by such statutory language, the General Assembly in no way intended to provide a preferential or different treatment to appeals from decisions made by referees as opposed to those made . by county judges. As noted above, § 9-10-106(d)(4) merely provides every person shall have the right to post an appeal bond and only the amount and conditions of such a bond are left to-the discretion of the referee. We find nothing in the provisions ,of § 9-10-106 which alleviates the posting of an appeal bond in paternity proceedings.
Second, it is well established that the General Assembly is deemed cognizant of this court’s decisions respecting statutory interpretation whenever it enacts legislation, Smith v. Ridgeview Baptist Church, 257 Ark. 139, 514 S.W.2d 717 (1974), and that being so, the General Assembly was fully aware that we had already construed § 9-10-117 as requiring a bond when perfecting an appeal from a paternity action. Epperson, 222 Ark. 456, 261 S.W.2d 267. Nonetheless, in enacting § 9-10-106, the General Assembly gave no indication that it intended to dispense with bonds in appeals from paternity decisions, but instead merely reiterated that which was already provided in § 9-10-117, viz., that every person shall have the right to post an appeal bond. ,.
Sections 9-10-106 and -10-117 involve the same subject matter and when construing them together, as we must, the intent of the General Assembly is evident that an appeal bond is required under both provisions regardless of whether the paternity action is decided by a referee or county judge.
In the present case, both the paternity referee and county judge entered the order determining appellant was Mallory’s father and fixing support payments at $25.00 per week. Interestingly enough, the county judge, not the referee, was the one who granted an appeal. In any event, no mention of an appeal bond was made by either the referee or county judge and for that reason, the circuit judge dismissed appellant’s appeal. The judge was correct, and we affirm.
The “prayer” was accompanied by an affidavit stating that the appeal was not taken for the purposes of vexation and delay.
In the transcript, we do find the referee and county judge’s order finding paternity and fixing support did refer to a security bond for the payment of child support ordered by the county court. | [
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Otis H. Turner, Justice.
The appellant, Brookside Village Mobile Homes, commenced this action to recover past due rental payments on a mobile home alleged to be due under a written agreement. Gail Meyers, the appellee, counterclaimed, alleging that the writing was a contract of sale and contending that she entered into the contractual arrangement as a result of Brook- side’s fraudulent conduct.
The circuit court, as trier of fact, held the contract to be one of sale entered into by Meyers as a result of Brookside’s deceit and rendered a judgment for the appellee in an amount equal to payments made to the appellant ($1,101.71), together with an attorney’s fee of $1000 pursuant to the provisions of Ark. Code Ann. § 16-22-308 (Supp. 1989). We must reverse because of a lack of any substantial evidence to support the finding of deceit.
Brookside Village Mobile Homes operates a mobile home park and rents and sells mobile homes. Gail Meyers, a prospect, was shown several mobile homes in the appellant’s park and chose a mobile home located in space 69. On January 8,1988, Meyers executed a “Lease/Rental Agreement” with the appellant for space 69 in Brookside Village Mobile Home Park and subsequently moved into the mobile home located in that space which she had selected.
On February 10, 1988, Meyers executed a “Lease With Option to Purchase,” which described a 1982 14’ x 52’ “Liberty” mobile home, serial number 7460, and paid to Brookside the sum of $500 for the purchase option. However, the home Meyers had inspected and moved into was not the unit described in the Lease With Option to Purchase,” but was, in fact, a 1984 14’ x 52’ “Champion” unit, serial number 5395, which, according to the evidence, was of the same value as the “Liberty” model.
A few months later, Meyers defaulted in her lease payments, and Brookside sued for the unpaid rentals. Meyers counterclaimed, alleging fraud and seeking compensatory and punitive damages.
The trial court found that the “Lease With Option to Purchase” was, in fact, a contract for the sale of the mobile home; that Brookside was guilty of “deceit” in the transaction; and that Meyers was entitled to a return of her $500 along with all payments made toward the “purchase.” Further, as the appellant was the prevailing party, an award of $1,000 as a reasonable attorney’s fee was granted to Meyers’ attorney. No proof was required concerning the value of the attorney’s services. From that decision, the appellant has raised this appeal.
The tort of deceit is established when each of five elements is shown: First, a false representation of a material fact; second, knowledge or belief on the part of the person making the representation that the representation is false or that there is not a sufficient basis of information to make such a representation; third, an intent to induce the other party to act or refrain from acting in reliance upon the misrepresentation; fourth, a justifiable reliance upon the representation by the other party in taking action thereon; and fifth, resulting damages. Higgins v. Hines, 289 Ark. 281, 711 S.W.2d 783 (1986); Storthz v. Commercial National Bank, 276 Ark. 10, 631 S.W.2d 613 (1982); see also, Prosser, Law of Torts (4th Ed. 1971), pp. 685-686.
It is undisputed that the mobile home described in the “Lease With Option to Purchase” was not the mobile home that Meyers selected and occupied. Standing alone, this fact would appear to satisfy the requirement of a false representation of a material fact, if it were not for the additional fact (which the record makes abundantly clear) that a simple clerical mistake occurred rather than an attempt to deceive. The mistake was at no time disputed by Brookside; moreover, Bill Meyers, the appellee’s former husband, who assisted in the rental negotiations, testified that no one employed by the appellant ever refused to correct the mistaken description.
There is no evidence that Brookside induced or intended to induce the appellee to act or refrain from acting in reliance upon a representation concerning the brand or model of the unit located in space 69. To the contrary, it was clear from the testimony of both the appellee and her former husband that she specifically chose the mobile home in space 69, without regard to a particular brand or model year. The appellee candidly admitted that she moved into the mobile home that she had chosen after looking at several others and. made no claim that she was purchasing a particular brand. Additionally, the instruments signed by the appellee provided that she was accepting the unit “as is.”
The burden of proving fraud requires not only a showing that the purchaser was without knowledge of the facts, but also that the ascertainment of the undisclosed fact was not within the reach of the purchaser’s diligent attention or observation. Vaught v. Satterfield, 260 Ark. 544, 542 S.W.2d 502 (1976). Clearly, the appellee had ample opportunity to inspect the trailer and did, in fact, make such an inspection. Further, Bill Meyers pointed out that the brand name “Champion” was visible on the front of the mobile home. The trademark also appeared on a plaque inside the unit.
The appellee failed to meet her burden of showing knowledge or belief on the part of the appellant that the description in the option to purchase was false. She was unable, as well, to prove that the appellant acted with an intention to induce her to act or refrain from acting in reliance upon a misrepresentation or to establish her justifiable reliance upon a material representation. This cause, therefore, is reversed and remanded.
Arkansas Code Annotated Section 16-22-308 (Supp. 1989), the statute relied upon by the court in authorizing the award of attorney’s fees, provides for such an award to the prevailing party. Since the judgment in favor of the prevailing party is reversed, the award of attorney’s fees is also reversed.
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Robert H. Dudley, Justice.
Appellant Bill Blankenship, the regional manager of a private security firm, owns four (4) rental properties in the Jacksonville area. John Finley applied to Blankenship for work as a security guard. The two had never before met. In his work application Finley wrote that he had experience laying tile. Blankenship told Finley that he did not have an opening for a security guard, but that he owned a rent house which needed bathroom and kitchen repairs. Finley said he needed work, and Blankenship hired him to repair the bathroom shower for “around six hundred dollars.” Finley was going to use regular sheetrock in the wall, but Blankenship specified waterproof sheetrock and the color of the tile. It took Finley “three or four days” to complete the bathroom, and Blankenship went by to check the progress “once or at most twice,” or else “occasionally.” Blankenship specified that Finley should go into the apartment to work only when one of the tenants was there. Blankenship did nothing else. The bathroom job was successfully completed.
Blankenship then hired Finley, by another oral contract, to repair and retile the kitchen “for an agreed amount of money,” or on a “materials cost plus labor” basis. Blankenship specified treated wood for the braces in the kitchen. There is no proof that Blankenship ever saw any of the work being done in the kitchen. The contractor was in the process of taking up floor linoleum and used gasoline to remove the glue when an explosion and fire occurred. Injury and damages to the tenants, appellees Overholt and Frye, occurred. The trial court refused to grant a directed verdict for the owner of the property, appellant Blankenship. Appellant Blankenship was held not to be the employer of an independent contractor, but instead the master in a master-servant relationship, and, thus, vicarious liability attached for Finley’s negligence. We reverse and dismiss as to appellant Blankenship.
An employer of an independent contractor is not liable for the independent contractor’s torts which are committed in the performance of the contracted work. Humphries v. Kendall, 195 Ark. 45, 111 S.W.2d 492 (1938). However, when an employer goes beyond certain limits in directing, supervising, or controlling the performance of the work, the relationship changes from employer and independent contractor to master and servant, and the master is liable for the servant’s torts. Meyer v. Moore, 195 Ark. 1114, 115 S.W.2d 1087 (1938).
In drawing that line between independent contractor and servant, we look at the totality of the circumstances. Alpha Zeta Chapter of Pi Kappa Alpha Fraternity v. Sullivan, 293 Ark. 576, 740 S.W.2d 127 (1987). Section 220 of the Restatement (Second) of Agency sets out the various circumstances or facts which are to be weighed in drawing the line:
(a) the extent of control which, by the agreement, the master may exercise over the details of the work;
(b) whether or not the one employed is engaged in a distinct occupation or business;
(c) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;
(d) the skill required in the particular occupation;
(e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;
(f) the length of time for which the person is employed;
(g) the method of payment, whether by the time or by the job;
(h) whether or not the work is a part of the regular business of the employer;
(i) whether or not the parties believe they are creating the relation of master and servant; and
G) whether the principal is or is not in business.
We have written that (a) above, the extent of control, is the principal factor in determining the relationship. Moore v. Phillips, 197 Ark. 131, 120 S.W.2d 722 (1938). In Moore, we explained:
By a long line of decisions this court is committed to the universal rule, that where the contractor is to produce a certain result, according to specific and definite contractual directions, agreed upon and made a part of the contract, and the duty of the contractor is to produce the net result by means and methods of his own choice, and the owner is not concerned with the physical conduct of either the contractor or his employees, then the contract does not create the relation of master and servant. This court has consistently accepted and stated the settled rule that even though control and direction be retained by the owner, the relation of master and servant is not thereby created unless such control and direction relate to the physical conduct of the contractor in the performance of the work with respect to the details thereof. St. Louis, I.M. & S. R. v. Gillihan, 77 Ark. 551, 92 S.W. 793; Moore Lumber Co. v. Starrett, 170 Ark. 92, 279 S.W. 4.
Here, the employer was not concerned with the physical conduct of the contractor. Instead, he was concerned with the result. The fact that he wanted treated wood for the braces in the kitchen floor is a specification for the end result, and not supervision of the physical conduct of the contractor. The employer was not engaged in one of the building trades, knew nothing about them, had no tools, had no skill in the field, did not even know the helper’s name, and had never before employed the contractor. The relationship between the employer and the contractor was in every way described in the Restatement test that of employer and independent contractor.
Viewing the evidence and all inferences most favorably to appellees, as we must do in the denial of a motion for a directed verdict, we cannot say there was any substantial evidence to support the verdict.
Reversed and dismissed as to appellant Blankenship.
Special Justice Gene E. McKissic joins in this opinion.
Hays, J., and Special Justice Eddie N. Christian, dissent.
Glaze and Turner, JJ., not participating. | [
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David Newbern, Justice.
Kimberly Ellen Middleton sued the appellees, Elvis Stilwell and Clarence Sloate, for injuries sustained by her in two separate automobile accidents. Eighteen days after the accident involving Stilwell, she had a collision with Sloate. She claimed her injuries from the first wreck were aggravated in the second one. The trial court ordered that one of the defendants be dismissed, in effect requiring two separate actions. The claim against Sloate was dismissed without prejudice. Middleton argues it was error to have dismissed her claim against Sloate thus preventing her from seeking joint and several liability of the two defendants in the same action. We must dismiss the appeal because there is no appealable order.
When multiple parties are involved in a case,
the court may direct the entry of a final judgment as to one or more but fewer than all of the . . . parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates . . .the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties. [Ark. R. Civ. P. 54(b)]
We have stated on many occasions that, for purposes of appeal, a judgment is final if it dismisses the parties from the court, discharges them from the action, or concludes their rights to the subject matter in controversy. Elardo v. Taylor, 291 Ark. 503, 726 S.W.2d 1 (1987); McElroy Bank & Trust v. Zuber, 275 Ark. 345, 629 S.W.2d 304 (1982). See Ark. R. App. P. 2(a). Although the dismissal of the claim against Sloate was without prejudice, it was clearly a dismissal of Sloate from this action. The court thus could have made a determination that there was no need for delay and could have directed the entry of a final judgment of dismissal of Sloate from this action in accordance with Rule 54(b). No such determination or direction occurred.
The failure to comply with Rule 54(b) presents a jurisdictional issue in this court which we will raise on our own, and, absent compliance, we dismiss the appeal for lack of a final order. King v. Little Rock School Dist., 296 Ark. 552, 758 S.W.2d 708 (1988); Kilcrease v. Butler, 291 Ark. 275, 724 S.W.2d 169 (1987).
Appeal dismissed.
Glaze and Turner, JJ., not participating. | [
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Tom Glaze, Justice.
The state appeals from the trial court’s granting of the appellee’s petition for writ of habeas corpus. In granting the writ, the trial court found that no record or other competent evidence exists to show that the appellee entered voluntary pleas of guilty in the Prairie County Circuit Court, Northern District, to three counts of kidiiapping. Without a proper and voluntary plea of guilty, the trial court held that there could not be a valid judgment of guilt or a subsequent valid commitment to the penitentiary. On appeal, the state argues that the trial court erred in granting the writ of habeas corpus. We agree and therefore reverse and dismiss.
The appellee was charged with first degree murder in Prairie County, Southern District, robbery in Monroe County, and three counts of kidnapping in Prairie County, Northern District. On a change of venue, she was tried for the murder charge in Lonoke County and was convicted of the lesser included offense of second degree murder and sentenced to eleven (11) years imprisonment. The appellee states that her trial in Lonoke County was on April 15,16 and 17,1975, and that she was sentenced on the following Monday, April 21.
According to three Prairie County, Northern District, kidnapping judgments, the appellee appeared in person and with her attorney, James Burnett, on April 16,1975, and entered pleas of guilty to the kidnapping charges. These judgments were signed by Circuit Judge W. M. Lee on June 7, 1975. They reflect appellee was sentenced to serve eight (8) years for each count for a total of twenty-four (24) years to run consecutively to the murder and robbery sentence for a total of forty-five (45) years imprisonment. The judgments are the only evidence in the record to support the existence of the appellee’s guilty pleas to the kidnapping charges. The appellee denied having pled guilty to the kidnapping charges and testified that she was unaware of the existence of these kidnapping judgments until sometime in 1987. After serving the time for her murder and robbery convictions, the appellee filed a writ of habeas corpus in Jefferson County, where she is detained, alleging that the kidnapping judgments and commitments were invalid.
The state argues that a writ of habeas corpus is not the appropriate remedy under the facts of this case. We must agree. This court has repeatedly held that one is held without lawful authority and thus entitled to writ of habeas corpus when it is shown that the commitment is invalid on its face or the court lacked jurisdiction. See Johnson v. State, 298 Ark. 479, 769 S.W.2d 3 (1989); George v. State, 285 Ark. 84, 685 S.W.2d 141 (1985); Stover v. Hamilton, 270 Ark. 310, 604 S.W.2d 934 (1980); State v. Auten, 211 Ark. 703, 202 S.W.2d 763 (1947).
The appellee argues that a writ of habeas corpus is also available to question the validity of a conviction, not just the facial invalidity of the conviction judgment. In support of her argument, she cites Bakery. Lockhart, 288 Ark. 91, 702 S.W.2d 403 (1986), where we said, “a petition for writ of habeas corpus is restricted to the questions of whether the petitioner is in custody pursuant to a valid conviction and whether the convicting court had proper jurisdiction.” Unfortunately, the Baker court rephrased the long settled rule pertaining to a person’s entitlement to a writ of habeas corpus, and in doing so, misspoke. We correct that error by reaffirming our prior holdings, as cited above, that a writ of habeas corpus petition is only proper when it is shown that a commitment is invalid on its face or the court lacked jurisdiction.
In the present case, the Prairie County Circuit Court clearly had jurisdiction to accept guilty pleas to kidnapping charges in that county. Therefore, our review is limited to whether the appellee’s convictions are invalid on their face. These judgments state that the appellee and her attorney appeared before the court and entered a guilty plea, and are signed by the circuit judge. However, the appellee contends that her convictions are invalid on their face because the judgments state that the sentences will run consecutively to the sentence in the murder trial, which had not yet been completed. In other words, when the appellee allegedly appeared in Prairie County to enter her guilty plea on April 16, the judge sentenced her to eight (8) years for each count of kidnapping to run consecutively to her Lonoke County murder sentence, which at the time did not exist.
Appellee’s view of the kidnapping judgments as being facially invalid must fail even if her murder case was still pending at the time she pled guilty to the kidnapping counts. Under A.R.Cr.P. Rule 24.4(c), before accepting a plea of guilty, a trial judge must address the defendant personally and inform him or her and determine that he or she understands, among other things, the maximum possible sentence on the charge, including that possible from consecutive sentences. Here, while the trial judge did not know the appellee’s murder sentence, he could have fulfilled the requirement of Rule 24.4(c) by having told her the possible range of sentences she could receive for murder. See Peterson v. State, 296 Ark. 324, 756 S.W.2d 897 (1988). While in Peterson, the issue was whether the trial court erred in failing to inform the defendant that his sentences could be ordered consecutively before accepting his guilty plea, the court’s discussion of the trial court’s meeting of the Rule 24.4(c) requirements is helpful in the present case. The defendant, in Peterson, pled guilty to one charge while other charges were still pending. Before accepting his guilty plea, the trial judge instructed the defendant regarding the range of sentences he could receive for the pending charges. Here, we find nothing on the face of the kidnapping judgments that reflects the trial judge failed to tell the appellee the range of sentences possible for her murder charge when he informed her that her kidnapping sentences would run consecutively to that sentence.
While we note the appellee’s testimony and evidence supporting her contention that she never appeared in the Prairie County Circuit Court and pled guilty to the kidnapping charges, our review in a habeas corpus case is limited to finding error on the face of those convictions. From our review of the appellee’s kidnapping judgments and commitments, we cannot say that they are invalid on their face. Therefore, we must reverse the trial court’s granting of the writ of habeas corpus.
Purtle, J., dissents.
We do not discuss the appellee’s robbery charge since it is not at issue in this appeal.
If appellee is due any relief, it would be under A.R.Cr.P. Rule 37. Such post-conviction relief, however, would not be in Jefferson County, but in Prairie County, where the judgments were filed. | [
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Jack Holt, Jr., Chief Justice.
On June 30, 1989, the appellant, Tyrone Jones, pleaded guilty to, and was convicted of: 1) three counts of robbery and sentenced to ten years on each count to run consecutively to one another and to all of his other convictions; 2) robbery and sentenced to five years to run consecutively to his other convictions; 3) aggravated robbery and sentenced to life imprisonment; 4) burglary and sentenced to ten years and theft of property and sentenced to five years, both to run concurrently to each other but consecutively to his other convictions; and 5) escape in the second degree and sentenced to two years to run consecutively to his other convictions.
Jones received fourteen months jail time credit for time served prior to his sentence to imprisonment, which was applied only to the escape in the second degree conviction.
In his sole point of error, Jones contends that the trial court erred in failing to give fourteen months of jail time credit to each of the imposed sentences.
Arkansas Code Ann. § 5-4-404 (1987) provides as follows:
If a defendant is held in custody for conduct that results in a sentence to imprisonment, the court shall credit the time spent in custody against the sentence.
Although one may not appeal from a guilty plea, Redding v. State, 293 Ark. 411, 738 S.W.2d 410 (1987), and A.R.Cr.P. Rule 36.1, we have held that a criminal defendant who has pleaded guilty may appeal on the issue of the application of jail time credit. Cox v. State, 288 Ark. 300, 705 S.W.2d 1 (1986).
In Travis v.State, 292 Ark. 463, 730 S.W.2d 501 (1987), we held that the defendant was not entitled to credit for his time in jail or the penitentiary because the time he was serving was on an unrelated charge. In referring to Ark. Stat. Ann. § 41-904 (Repl. 1977) (now codified as Ark. Code Ann. § 5-4-404 (1987)), we stated that “that law clearly does not apply when, as here, the defendant’s incarceration exists because of charges or criminal conduct other than the one on which the defendant seeks credit and for which he is convicted and sentenced.” See McGirt v. State, 289 Ark. 7, 708 S.W.2d 620 (1986); Boone v. State, 270 Ark. 83, 603 S.W.2d 410 (1980).
In this case, Jones was initially charged on April 5, 1988, with one count of aggravated robbery and two counts of robbery and held in continuous custody (except for a brief period while on escape) until he was sentenced to imprisonment on June 30,1989. He was also charged with the following offenses: 1) on April 22, 1988, with aggravated robbery; 2) on May 24, 1988, with aggravated robbery, burglary, kidnapping, rape, and two counts of theft of property; and 3) on July 5, 1988, with escape in the second degree.
The subsequent offenses with which Jones was charged are wholly unrelated to the conduct that resulted in his sentence of three consecutive ten year terms for three counts of robbery, which was based on the April 5,1988, charges. Accordingly, he is entitled to 452 days of credit for the time served between April 5, 1988, and June 30, 1989. Under the rationale of Travis, supra, jail time credit should only be applied to the sentences relating to the April 5, 1988, charges.
Consequently, the judgment is affirmed as modified and remanded in accordance with this opinion.
Price, J., not participating.
789 S.W.2d 730
William R. Simpson, Jr., Public Defender, by: Didi H. Sailings, Deputy Public Defender, for appellant.
Steve Clark, Att’y Gen., by: Lynley Arnett, Asst. Att’y Gen., for appellee.
SUPPLEMENTAL OPINION ON DENIAL OF REHEARING MAY 21, 1990
Per Curiam.
In this matter, the trial court denied appellant’s application for jail time credit, and on appeal, we affirmed as modified and remanded the trial court to conform its holding to show that the appellant has 452 days of jail time credit. The state, in its petition for rehearing, contends this court had no appellate jurisdiction of the trial court’s denial of the appellant’s motion for jail time credit because the sentences imposed against appellant arose from his guilty pleas, from which he had no right to appeal. See A.R.Cr. P. Rule 36.1; Jenkins v. State, 301 Ark. 20, 781 S.W.2d 461 (1989); Redding v. State, 293 Ark. 411, 738 S.W.2d 410 (1987). The state is wrong.
Under Ark. Code Ann. § 16-90-111 (b)(1) (Supp. 1989), a circuit court has authority to reduce a sentence within 120 days after the sentence is imposed or after receipt of a mandate issued upon affirmance of the judgment or dismissal of the appeal. Here, the appellant pled guilty to three felonies on June 12, 1989, and on June 30, 1989, or eighteen days later, he also requested jail time credit, which the trial court denied. Appellant’s request for jail time credit and reduction of sentence was timely made, and he duly filed his appeal from the trial court’s denial of his request. Clearly, we had appellate jurisdiction to decide the correctness of the trial court’s decision.
The state correctly notes that, in our opinion, we misrepresented the holding in Cox v. State, 288 Ark. 300, 705 S.W.2d 1 (1986), as stating that a defendant who has pleaded guilty may appeal on the issue of the application of jail time credit. Even so, since the lower court and this court in the present case had jurisdiction to consider appellant’s argument for jail time credit under § 16-90-111(b)(1), such a miscue in no way affects the result this court reached. In reading Cox, it is difficult to discern exactly how that matter came to this court for review, but it is of no import. There, Cox filed his motion for jail time credit in circuit court within three years of his conviction judgment, and the lower court and this court on appeal could have considered such issue under A.R.Cr.P. Rule 37, even if Cox had been unable to raise it in ány othér manner. See Williams v. State, 291 Ark. 255, 724 S.W.2d 158 (1987).
The state’s petition for rehearing is denied.
Rule 37 has since been abolished. See Whitmore v. State, 299 Ark. 55, 771 S.W.2d 266 (1989). | [
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David Newbern, Justice.
This is an appeal from denial of a petition for a writ of habeas corpus. Alfred James Miller, Jr., was accused of robbing a grocery store while armed with a butcher knife. He pleaded guilty to aggravated robbery and was convicted in 1978. Since then, he has contended in petitions filed pursuant to Ark. R. Crim. P. 37 that no formal judgment was entered in his case. He argues he was entitled to post-conviction relief because without a dated judgment he was unable to calculate the effect of his sentence on a sentence he was serving when convicted and could not know when his time for seeking Rule 37 relief would expire. His two Rule 37 petitions were denied, and he has made the same allegations in his petition for a writ of habeas corpus.
The writ of habeas corpus may be granted upon a showing of probable cause that an incarcerated person is detained without lawful authority or is being detained without bail to which he is entitled. Ark. Code Ann. § 16-112-103(a) (1987). The writ may not be granted unless it is shown that the commitment is unlawful on its face or that the court authorizing the commitment lacked jurisdiction. Johnson v. State, 298 Ark. 479, 769 S.W.2d 3 (1989); George v. State, 285 Ark. 84, 685 S.W.2d 141 (1985).
The amended order of commitment in this case purports to be a true transcript of the judgment and sentence of the court. It refers to proceedings of September 8,1978, at which Mr. Miller pleaded guilty to aggravated robbery and was sentenced to 50 years imprisonment with 20 years suspended, noting that Mr. Miller admitted he had previously been convicted of four felonies. Mr. Miller does not even allege that the order is unlawful on its face or that the court lacked jurisdiction. The trial court correctly observed that the relief sought was more in the nature of the kind which can be granted pursuant to Rule 37. He properly refused to consider Rule 37 relief because it had already been sought and denied.
Mr. Miller has also argued that certain testimony was improperly received in the hearing on the writ. We need not address that point because it would not affect the disposition of the case even if correct.
Affirmed. | [
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Otis H. Turner, Justice.
The appellant raises six points for reversal in this appeal from his conviction on a charge of possession of marijuana with intent to deliver. His arguments are unpersuasive, and we affirm the judgment.
Edmond (Ned) Parette, the appellant, and his wife, Elizabeth (Liz) Parette, lived together with their infant child in a single-family residence in Fayetteville, Arkansas, until November, 1985, when the appellant moved out. He filed a suit for divorce in May, 1986.
Mrs. Parette remained in the residence until September, 1986, when she surrendered the house and key to the appellant. (The appellant’s father was the owner of the house.) The house remained unoccupied, although both husband and wife had left various items of personal property inside.
Sometime during the fall of 1986, Liz Parette had a chance
meeting with a high school acquaintance, Harry Perry, a police officer for the city of Springdale, Arkansas. She testified that she told the officer that she believed her former husband was involved in “dope.”
In October, 1986, Liz Parette, wishing to obtain some of her possessions from the house, met with her former neighbor, Ann Hannah, and, with her assistance, entered the house through a utility-room window. Once inside, she smelled the odor of marijuana and discovered a large amount of the substance in trash bags stored in a closet, together with scales, plastic bags, and other items, which she identified as the property of Ned Parette.
The two women then took the bags and the other items of personal property to Mrs. Hannah’s house. Mrs. Parette then phoned her friend, Officer Harry Perry. She subsequently gave the marijuana and other items taken from the house to Perry, who delivered all of the property to the Springdale Police Department. In March, 1987, the appellant was arrested and charged with possession of a controlled substance with intent to deliver.
Liz Parette was ultimately granted immunity from prosecu-. tion. At her former husband’s trial, she testified that the appellant had been involved in marijuana trafficking during the course of their marriage. A pretrial motion by the defense to suppress the physical evidence was denied. Following a trial by jury, the appellant was convicted and sentenced to ten years imprisonment and fined $20,000.
The appellant argues six issues for reversal:
I. The state failed to meet its burden of proving the validity of the warrantless search.
II. The appellant’s former wife should not have been permitted to testify against him.
III. The trial court erroneously permitted evidence from a surprise witness after the state admitted a discovery violation.
IV. The trial court prejudicially restricted cross-examination of a material witness.
V. The trial court erroneously excluded the testimony of a defense witness.
VI. The trial court erroneously denied a directed verdict for the appellant.
After a careful review, we hold that the trial was without prejudicial error, and we affirm.
I.
The appellant made a pretrial motion to suppress the evidence taken from the house by Liz Parette and Ann Hannah on the basis that it had been obtained in violation of the Fourth Amendment to the United States Constitution.
Pertinent testimony indicates that the appellant and Liz Parette lived together in the house; that the appellant moved and Liz remained; that Liz then moved but left certain items of personal property in the house, some of which belonged to her estranged husband, some to her, and some to their infant child. Thereafter, the appellant had access to the house, owned by his father, and frequented it on numerous occasions, but neither the appellant nor Mrs. Parette occupied the premises.
The appellant’s motion to suppress raised two issues to be resolved by the trial court: first, whether the appellant had standing to challenge the seizure of the evidence; and second, whether the two women were acting as private citizens or as agents of the police due to Liz Parette’s relationship with Officer Perry and her earlier conversation with him concerning a belief that appellant was involved with “dope.”
It is well settled that one must have standing in order to complain of an alleged illegal search and seizure. Rakas v. Illinois, 439 U.S. 128 (1978); Ross v. State, 300 Ark. 369, 779 S.W.2d 161 (1989). There was no showing that the appellant owned or leased the house or maintained or had a right to maintain control of the premises; thus, the trial court was correct in holding that the appellant lacked standing to complain. Also, the appellant acknowledges that the search and seizure restraints found under the provisions of both the state and federal Constitutions operate as restraints upon the government and its agents rather than upon private individuals. Smith v. State, 267 Ark. 1138, 594 S.W.2d 251 (Ark. App. 1980). Only when it is established that the private individual acted at the direction of a law enforcement agency or officer can he or she be considered an arm of the government. Houston v. State, 299 Ark. 7, 771 S. W.2d 16 (1989). This question was properly before the trial court, who was able to evaluate the evidence and to resolve any conflicts which might have existed. Atchison v. State, 298 Ark. 344, 767 S. W.2d 312(1989). We find that the trial court’s decision was not against a preponderance of the evidence.
II.
The appellant next argues that his ex-wife should not have been permitted to testify against him.
In advancing this argument, the appellant relies upon a series of legislative enactments, decisions of this court, and promulgations of procedural rules by this court under its constitutionally-granted powers.
Act 14 of 1943, previously codified as Ark. Stat. Ann. §§ 43-2019 — 2020, prohibited the introduction by the opposing party of any testimony by one spouse against the other in a criminal case. In 1975, the legislature established rules of evidence by legislative act. Rule 504 changed the prior rule to prohibit the testimony of one spouse against the other only with respect to confidential communications. On October 13, 1986, this court held that the act changing the rule was invalid and then adopted the Rules of Evidence (including Rule 504) by per curiam order. See Ricarte v. State, 290 Ark. 100, 717 S.W.2d 488 (1986).
The appellant’s argument is controlled by our holding in Smith v. State, 291 Ark. 163, 722 S.W.2d 853 (1987). There we specifically held that where the change in law between the commission of the crime and the trial did not make any fact admissible to prove the crime which fact would not have been admissible at the time of the commission, but only made testimony admissible which would not have been previously admissible, it is an evidentiary matter, not one of substantive law, and as such, is within the court’s rule-making authority. See Curtis v. State, 301 Ark. 208, 783 S.W.2d 47 (1990).
The trial court properly allowed Liz Parette to testify against her former husband.
III.
The appellant contends that reversal is required due to the admission of testimonial and physical evidence of a surprise witness after the state admitted a discovery violation.
In response to discovery requests by the appellant, the state listed as a witness an employee of the United Parcel Service who had taken the appellant’s fingerprints, apparently as a part of an application for employment. The listed witness was going to be used only for the purpose of establishing that the prints on the card were the prints of the appellant. During the course of trial, the state found that the listed witness was unavailable and so elected to call a deputy sheriff who could identify the appellant’s fingerprints on the card made at the time of the arrest. Neither the listed witness nor the substituted witness were to be called for the purpose of comparing the record or “card” prints with the prints lifted from the bags of marijuana — that evidence was provided by a listed expert. When informed of the substitute witness, counsel for the appellant objected. Although the objection was overruled, the court gave counsel for the appellant thirty minutes to confer with the witness outside the courtroom prior to his testifying.
The witness — whether listed or substituted is immaterial under these circumstances — was called only for the limited purpose of laying a foundation for the testimony of the fingerprint expert. Though counsel for the appellant argues prejudice, there was nothing before the trial court or this court on appeal to indicate how the substitution might have been prejudicial. The appellant’s attorney asserts that he was prepared to “gut” the listed witness but does not elaborate. The ingenuity necessary to “gut” a witness called only for the limited purpose of identifying a fingerprint card would be useful knowledge and should have been explained.
Even if this substitution of witnesses amounted to a discovery violation, so long as no real prejudice to the appellant ensued, reversal is not warranted. Caldwell v. State, 295 Ark. 149, 747 S.W.2d 99 (1988).
IV.
The appellant next argues that the trial court committed prejudicial error in restricting the appellant’s cross-examination of Officer Perry.
During this cross-examination, the appellant’s attorney asked the witness if he had taken an oath to uphold the law. Perry answered affirmatively. Counsel then inquired whether, at any time during his employment with the Ouachita County Sheriff’s Office, he had violated the law. The state objected, and the defense proffered that Perry had constructed and set off a “bomb” in a tree on the University of Arkansas campus during a gay rights march. This act resulted in a reprimand and termination of employment by the sheriff’s office. The state countered that the evidence had nothing to do with truthfulness or veracity as required by Rhodes v. State, 276 Ark. 203, 634 S.W.2d 107 (1982). The court sustained the state’s objection.
Arkansas Rules of Evidence Rule 608 (b) provides that specific instances of conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of a crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness concerning his character for truthfulness.
We have interpreted this rule and limited its application to instances where the inquiry on cross-examination concerns misconduct “clearly probative of truthfulness or untruthfulness.” Rhodes v. State, 276 Ark. 203, 634 S.W.2d 107 (1982). We do not view the inquiry as relating to misconduct clearly probative of untruthfulness as argued by the appellant. The record indicates that the witness’s misconduct resulted in a charge of discharging fireworks within the city. The appellant attempts to make a conceptual leap backward from this petty misdemeanor, not itself relating in any way to truthfulness or untruthfulness, to the policeman’s oath and then forward to the standard established in Rhodes. There is simply no analogy between the Rhodes situation and that ruled upon the court in this case. We decline to permit the appellant to bootstrap, by reverse analogy, this situation to Rhodes, and we refuse to hold that the trial court abused the discretion granted to him under the rule.
The appellant also contends that the evidence was admissible under A.R.E. Rules 404 and 405. Rule 404 provides that character evidence of a witness is not admissible to prove that he acted in conformity therewith on a particular occasion, except as provided for in Rules 607, 608 and 609, none of which applied here. Except to the extent discussed above, Rule 405 obviously refers only to the character of the accused as an essential element of the charge and has no application to this cross-examination directed to the character of a witness.
V.
It is next contended that the trial court erred in excluding the testimony of a witness for the defense.
Kerry Burke, a witness called for the defense, was asked by appellant’s attorney whether Liz Parette had changed since he first met her at college. The state objected, and the court sustained the objection “unless you [counsel for the appellant] attempt to qualify him as an expert.” Counsel responded that he could not meet the requirement and continued his interrogation of the witness. During the subsequent questioning, witness Burke testified that Liz Parette had on one occasion become emotionally upset, that she “was not herself,” and that she stated that she would “find a way to get” the appellant.
The record seems clear that the appellant accomplished his intended purpose with this witness and the testimony was in fact introduced. In any event, there appears no prejudice. See Watson v. State, 291 Ark. 358, 724 S.W.2d 478 (1987).
VI.
As his last point for reversal, the appellant contends there was no sufficient evidence to sustain the verdict.
The appellant presents three sub-arguments in advancing this issue: first, that Liz Parette and the appellant were in joint possession of the house and the appellant was, at the very worst, only in constructive possession of the marijuana; second, that Liz Parette was an accomplice and the evidence corroborating her testimony was not sufficient under the requirements of Ark. Code Ann. § 16-89-111(e) (1987); and third, the chain of custody of the contraband was. defective, rendering the admission as evidence reversible error.
Only one of the three sub-arguments was raised at the trial level. The appellant moved for a directed verdict on the constructive possession issue, both at close of the state’s case and when the defense rested; therefore, that issue is properly preserved and is the only one under this point that will be considered. See ARCP Rule 36.2(b); Houston v. State, 299 Ark. 7, 771 S.W.2d 16 (1989). In order to preserve an issue for appeal, that issue must be stated clearly and specifically. Price v. State, 285 Ark. 148, 685 S.W.2d 506 (1985). Only the objections raised at the trial level are deemed to be. properly before this court on appeal; all others are considered waived. Harris v. State, 295 Ark. 456, 748 S.W.2d 666 (1988). Thus, only the constructive possession argument is properly before this court.
If this conviction is to be affirmed, it must be shown that the appellant possessed the marijuana. Constructive possession is a sufficient showing. Constructive possession may be implied where the contraband is found in a place immediately and exclusively accessible to the defendant and subject to his control. Where, however there is joint occupancy of premises, then some additional factor must be present linking the accused to the contraband. The state must prove that the accused exercised care, control and management over the contraband and that the accused knew that it was in fact contraband. Plotts v. State, 297 Ark. 66, 759 S.W.2d 793 (1988).
There is an abundance of evidence from which a jury could conclude that the appellant exercised control over the contraband and knew where it was. Liz Parette testified that, during their marriage, the appellant received marijuana shipments once every one or two months; that a silver trash bag introduced into evidence was used by the appellant to cover the shipments when they were received; that a canvas bookbag, plastic baggies, and a set of scales that were identified and introduced were found with the marijuana and belonged to the appellant; that the canvas bookbag was obtained at Henderson State University when she and the appellant attended college; that a red bag bearing a Life magazine logo contained the appellant’s contact lens case, a “cocaine chopper” and wooden hashish pipe, all of which belonged to the appellant and were found by her with the marijuana.
There is also substantial evidence from which the jury could find that the appellant had easy access to and frequented the house where the contraband was found on a number of occasions. The appellant’s father owned the house, and the next door neighbor testified that she saw the appellant at the house quite often after Liz Parette moved out. This same neighbor once tried to go in the house when she saw the appellant cleaning inside. The appellant refused her admission, saying that the house was “a pit.”
Suffice it to say the evidence in support of the verdict is substantial, if not overwhelming.
Affirmed.
Price, J., not participating. | [
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David Newbern, Justice.
Jack William Beebe appeals from his conviction of aggravated robbery and theft for which he was sentenced to concurrent sentences of 50 and 60 years imprisonment as an habitual offender. He raises four points of appeal, and we find none of them warrant reversal.
Martha Campbell testified that she and her husband, Jesse Campbell, and Beebe discussed robbing a convenience store. Jesse obtained a shotgun belonging to Martha’s brother. He sawed the barrel off. Jesse and Martha made some masks to be used in a robbery. On a Monday, the Campbells and Beebe went to the bank at Centerton, Arkansas. They were driving a blue and white Dodge truck. Jesse and Beebe went inside to look around, and they asked for change for a ten dollar bill. Upon driving away from the bank they discussed the possibility that the surveillance cameras at the bank might cause them to be spotted if they robbed it.
That evening the three picked out a convenience store to rob. The Campbells waited with the truck some distance from the store while Beebe walked to the store and back. The store was closed, so the robbery attempt failed. They then picked out a second convenience store but decided to wait until there were no customers present. Jesse and Beebe stood where they apparently could observe the store, and a policeman came up to them and asked what they were doing. They then returned to Martha and the truck, giving up the attempt to rob the second store.
The next day the Campbells and Beebe decided to rob the bank. They let Jesse out at the bank, and Martha and Beebe went out a dirt road with the truck. As they had planned it, Jesse took a teller’s car after the robbery and met Martha and Beebe at the truck. Later that day, they were stopped by police officers while riding around in the truck.
At a pre-trial suppression hearing, Bill Baskin, a state police investigator, testified that he had received a radio transmission to the effect that he should look out for a “rough” blue and white pickup truck with two men and a woman. Physical descriptions were given to Baskin of the persons wanted for investigation in connection with the bank robbery. Upon seeing a truck with occupants matching the description, he stopped the truck.
The Campbells and Beebe were separated from each other, and they gave conflicting stories about where they were going. Beebe was sent to a state police vehicle where he was put in the back seat from which he could not get out without help from outside. Martha was then placed in the car with Beebe, and they were taken to the sheriffs office for continued investigation. They were not told they were not obliged to go.
Martha had left her purse on the seat of the truck. When the purse was searched for weapons, the money from the bank robbery was found. The officer driving Martha and Beebe received a radio transmission to place them under arrest, and he did so after stopping the car and handcuffing them. An FBI agent had told officers at the scene of the traffic stop that people matching the descriptions of the Campbells and Beebe had been seen the day before “casing” the bank. In addition, two bank tellers who had been victims of the robbery were brought to the scene. One of them identified Martha and Beebe as having been at the bank the day before. Apparently that information was not passed on to the officer who drove Beebe and Martha to the sheriffs office.
Beebe was questioned at the sheriffs office. The prosecutor, David Clinger, participated in the questioning. He told Beebe that the sentence for aggravated robbery was ten to forty years or life imprisonment and did not mention possible enhancement based on previous convictions. Speaking apparently to Beebe and the Campbells, Clinger said, “As far as making an armed robbery case, we don’t need a single thing out of any of you all’s mouth.” Beebe testified at the pre-trial hearing that he would not have made a statement had he known his sentence could have been different from that stated by Clinger.
1. Suppression of Beebe’s statement
Beebe contends his statement to the police should have been suppressed because his arrest was unlawful and the police failed to comply with Ark. R. Crim. P. 2.3 and 3.1. The statement is not included in the abstract of the record. We have no idea whether the statement was prejudicial. Rule 11 (f) of the Rules of the Arkansas Supreme Court and Court of Appeals requires an abstract of the parts of the record which are material to the points to be argued in the brief. Nichols v. State, 268 Ark. 541, 595 S.W.2d 237 (Ark. App. 1980). See Moser v. State, 262 Ark. 329, 557 S.W.2d 385 (1977). Without knowing whether the statement was prejudicial, we cannot review the question presented.
2. Prior bad acts
Beebe moved in limine to suppress testimony about the planning of the convenience store robberies. He contends it was error to deny the motion because the testimony was more prejudicial than probative. In Price v. State, 268 Ark. 535, 597 S.W.2d 598 (1980), we stated that one of the elements to be considered under A.R.E. 404(b) in determining whether the evidence of prior bad acts could be admitted was the A.R.E. 403 test of probative value versus unfairly prejudicial effect. The evidence here meets the other elements of the Rule 404(b) test because it shows Beebe’s participation in a continuing course of conduct or plan to commit an aggravated robbery.
Whether the probative value of the testimony about prior bad acts outweighs any unfair prejudice is a question within the discretion of the trial judge, and we will not disturb the trial judge’s decision absent an abuse of discretion. Bennett v. State, 297 Ark. 115, 759 S.W.2d 799 (1988).
Beebe cites Golden v. State, 10 Ark. App. 363, 664 S.W.2d 496 (1984), in which the court of appeals found error in admitting evidence of three burglary convictions which were unrelated to the one charged. The court noted the other evidence in the case and pointed out that it was unnecessary to refer to the earlier convictions.
We cannot hold that the court abused its discretion in permitting Martha to testify about the events leading up to the bank robbery. Beebe was charged as an accomplice. The other evidence against Beebe was strong but circumstantial. It was based on his presence and association with the Campbells immediately prior to and after the robbery. Martha Campbell’s testimony that Beebe participated in the planning and attempting of the two convenience store robberies within 24 hours of the bank robbery was directly and highly probative that he was a partici pant in the bank robbery. The unfair prejudice was minimal in comparison.
3. Prosecutor’s participation
Beebe argues that because Prosecutor Clinger participated in questioning him and made misleading statements to him, any statement by Beebe to the police should have been suppressed or else he should have been allowed to call Clinger as a witness. He claims his rights under the Sixth and Fourteenth Amendments have been violated.
We do not approve of a prosecutor participating in a criminal investigation in such a manner as might cause him to become a witness. Duncan v. State, 291 Ark. 521, 726 S.W.2d 653 (1987). The argument here, however, is that Clinger should have been required to testify when Beebe called him as a witness. It is contended that his testimony would have shown that Beebe’s statements to the police were the result of overreaching because of Clinger’s remarks about the sentence for aggravated robbery and whether any statements from Beebe were needed for a case against him.
As noted above, we have no idea what statement or statements were made by Beebe. Unlike the Duncan case, there were no remarks by the prosecutor at the trial which amounted to testimony about the interrogation of the defendant. The argument has no merit.
4. Comment on Beebe’s failure to testify
In closing argument, a deputy prosecutor reviewed the evidence presented by the state and said, “I submit to you that that evidence has not been disputed.” He then made reference to various witnesses’ testimony, some of which had not been challenged by cross-examination.
No objection was made by the defense until the conclusion of the state’s argument. The remark was not necessarily a comment on Beebe’s failure to testify as the state’s evidence could have been disputed by evidence other than testimony by the accused. Even if the comment had been improper, the objection came too late, Houston v. State, 293 Ark. 492, 739 S.W.2d 154 (1987), and Beebe did not fulfill his obligation to obtain a ruling on it in order to preserve the point for appeal. Wood v. State, 276 Ark. 346, 635 S.W.2d 224 (1982).
Affirmed. | [
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Per Curiam.
The petitioner Nylon Vick was convicted of two counts of rape and one count of kidnapping and was sentenced to one hundred and forty years imprisonment. His convictions were affirmed upon appeal. Vick v. State, 299 Ark. 25, 770 S.W.2d 653 (1989). The petitioner now seeks permission to proceed in circuit court pursuant to Criminal Procedure Rule 37.
The petitioner claims first that his attorney was ineffective. To prevail on a claim of ineffective assistance of counsel, the petitioner must show first that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the sixth amendment. Second, the petitioner must show that the deficient performance prejudiced the defense, which requires showing that counsel’s errors were so serious as to deprive the petitioner of a fair trial. Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unreliable. A court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. The petitioner must show there is a reasonable probability that, but for counsel’s errors, the factfinder would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absent the errors. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. In making a determination on a claim of ineffectiveness, the totality of the evidence before the judge or jury must be considered. Strickland v. Washington, 466 U.S. 668 (1984).
The victim testified that the petitioner held her in his house overnight and raped her several times. She also testified that he forced her to take baths at his house. The petitioner now alleges that his attorney was ineffective because, had he investigated the case prior to trial, he would have learned that there were no utilities turned on at the house, and therefore, the petitioner could not have forced the victim to take baths. The petitioner argues that had his counsel investigated he could have proven that the victim committed perjury. Even if it was proven that the victim was not forced to take baths, it is very unlikely that that fact alone would cast doubt on the verdicts since there was clear testimony that the petitioner held the victim and raped her. Therefore, the petitioner’s allegations, even if true, would not undermine confidence in the outcome of the trial, and that is what is required. Strickland v. Washington, supra.
The petitioner also claims that the victim perjured herself at least twenty times and the defense counsel allowed the perjury to the petitioner’s prejudice. The petitioner fails to say about what the victim lied; therefore, the allegation is conclusory and does not warrant an evidentiary hearing. Smith v. State, 264 Ark. 329, 571 S.W.2d 591 (1978).
At trial the prosecutor repeatedly questioned the petitioner on cross-examination concerning why he did not tell the police his exculpatory version of the facts which he was testifying to at trial when he was arrested or afterwards. The petitioner answered that, “the police did not ask me,” and “[m]y lawyer had already warned me that I didn’t have to make a statement unless I wanted to.” After the prosecution asked numerous questions pertaining to this matter, the defense counsel objected. The trial court sustained the objection. On appeal, this court did not consider the petitioner’s claim that the prosecution violated his fourteenth amendment right to a fair trial by asking him about his post-arrest silence since petitioner received all the relief from the trial court that his attorney requested. This court stated that since the petitioner requested neither an admonition nor a mistrial, no reversible error occurred. The petitioner argues now that his attorney was not reasonably competent in failing to move for a mistrial or a dismissal.
In Doyle v. Ohio, 426 U.S. 610 (1976), the United States Supreme Court held that it is fundamentally unfair and a deprivation of due process to allow an arrested person’s silence to be used to impeach an explanation subsequently offered at trial. However, it is possible that where the defendant’s silence is mentioned by the state, it is harmless error if there is no prosecutorial focus by repetitive questioning or arguing on a defendant’s silence and where the evidence of guilt is overwhelming. See Hobbs v. State, 277 Ark. 271, 641 S.W.2d 9 (1982). In this case the error was harmless because a defense objection was sustained and because of the overwhelming evidence against the petitioner. This court cannot say that defense counsel’s failure to object to the questioning was so critical, or that his failure to move for a mistrial or dismissal was so critical as to undermine confidence in the outcome of the trial. See Strickland v. Washington, supra.
In addition to his argument that his counsel was ineffective for failure to halt the prosecution’s pursuit of his failure to exculpate himself, the petitioner argues that the prosecutor engaged in prosecutorial misconduct by questioning the petitioner about his failure to have told the police the exculpatory story he told on the witness stand. This argument was raised on appeal and cannot be raised again in Rule 37 proceedings. Rule 37 does not provide an opportunity to reargue points settled on appeal. Swindler v. State, 272 Ark. 340, 617 S.W.2d 1 (1981).
The petitioner claims too that the prosecutor should have been required to furnish expert testimony from a physician, who had examined the victim since the petitioner claimed at trial that he did not rape the victim. This argument should have been raised at trial and on appeal. Since it was not and is not so fundamental as to render the judgment of conviction void, it will not be considered. White v. State, 290 Ark. 77, 716 S.W.2d 203 (1986). Moreover, the testimony of a rape victim is sufficient to support a conviction for rape. Urquhart v. State, 273 Ark. 486, 621 S.W.2d 218 (1981).
The petitioner claims next that his convictions for two counts of rape and one count of kidnapping violate the double jeopardy clause of the constitution because each of the counts arose out of the same episode. One act can provide a basis for more than one charge. In this case, the petitioner kidnapped the victim and forced her to participate in several acts of intercourse. Therefore, separate convictions for each of these acts will stand. Kidnapping and rape are not lesser included offenses of one another since each crime requires a different element of proof. Cozzaglio v. State, 289 Ark. 33, 709 S.W.2d 70 (1986).
The petitioner has also filed a motion asking that he be appointed counsel. Since post-conviction proceedings under Rule 37 are civil in nature there is no constitutional right to appointment of counsel to prepare a petition under Rule 37. Fretwell v. State, 290 Ark. 221, 718 S.W.2d 109 (1986). Rule 37.3 provides for the appointment of counsel by the circuit court for the hearing if one is granted if the petitioner is unable to afford counsel. Robinson v. State, 295 Ark. 693, 751 S.W.2d 335 (1988).
The petitioner, who states that he is indigent, asks this court to provide him with a copy of the complete record of the transcript related to his proceedings so that he may use it to amend the matters herein.
A petitioner is not entitled to a free copy of the trial record or other material on file with this court unless he demonstrates some reasonably compelling need for specific documentary evidence to support an allegation contained in a petition for post-conviction relief. See Austin v. State, 287 Ark. 256, 697 S.W.2d 914 (1985); sec Chavez v. Sigler, 438 F.2d 890 (8th Cir. 1971); see also United States v. Losing, 601 F.2d 351 (8th Cir. 1979). Indigency alone does not entitle a petitioner to photocopies at public expense. Washington v. State, 270 Ark. 840, 606 S.W.2d 365 (1980). Since the petitioner has cited no specific compelling reason requiring these copies, the motion will be denied.
It should be noted that when an appeal has been lodged in either this court or the Court of Appeals, the appeal transcript remains permanently on file with the Clerk of the Supreme Court. Counsel'may check a transcript out through the Clerk’s office for a period of time, and persons who are not attorneys may review a transcript in the Clerk’s office and photocopy all or portions of it. An incarcerated person desiring a photocopy of pages from a transcript may write this court and request that the copy be mailed to the prison. All persons, including prisoners, must bear the cost of photocopying. Austin v. State, supra.
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Hart, C. J.,
(after stating the facts). The paper title of the plaintiff failed as to lot 2 in block 1 of Knight’s Addition to the town of Tuckerman, Arkansas. The plaintiff alleged that Charles Parrott had conveyed this lot to his wife, Martha Parrott, but that the deed had been lost. The record contains no proof that Charles Parrott executed a deed to said lot 2 to Martha Parrott. It does show that 'Charles Parrott orally agreed to con vey said lot to Martha Parrott, but died without having-executed the deed. Martha Parrott never entered into possession of the lot.
Equity never enforces a voluntary agreement to convey land where no possession has been taken of the land or valuable improvements made on it. It is only when the donee takes possession and makes valuable and substantial betterments upon the land, in reliance on the donation, that specific performance will be enforced. In such a case the expenditures of the donee supply a valuable consideration, and the possession and betterments constitute such part performance as to take the case out of the statutes of frauds. Young v. Crawford, 82 Ark. 33, 100 S. W. 87; and Murphy v. Graves, 170 Ark. 180, 279 S. W. 359.
The paper title of the plaintiff also failed as to lot 1, in block 1. Martha Parrott had the record title to this lot, and made a deed of trust to John R. Loftin, Jr., trustee, to-secure an indebtedness which she owed A. S.' Lawrence. Default was made in the payment of the indebtedness, land a foreclosure of the deed of trust was had under, the power of sale contained in it. The trustee executed a deed to A. S. Lawrence, who became the purchaser at the foreclosure sale under the power contained in the deed of trust. The amount secured by the deed of trust was $160, and the amount bid by Lawrence at the foreclosure sale under the power contained in the deed of trust was $60. Under § 6807 of Criawford & Moses’ Digest, notices in conformity with any deed of trust as to amounts under $350 may be posted in five conspicuous places in the county, but the statute further provides that notice shall be served in all cases upon the debtor as summons is now served. No service was had upon Martha Parrott, ias required by the statute, and for that reason the sale was invalid. Gleason v. Boone, 123 Ark. 523, 185 S. W. 1093, and Wilkison v. Hudspeth, 134 Ark. 132, 203 S. W. 263. In these and in other cases decided by this court it is held that, where the statutory requirements as to making the sale are not complied with, the sale is void.
It is next contended by counsel for the plaintiff that he has acquired title by the payment of' taxes for seven consecutive years, the lands being unimproved. Plaintiff cannot claim to be holding title under Martha Parrott, because, as we have already seen, her title to the lot owned by her was never legally divested, and she never acquird any title to the lot owned by her husband. Plaintiff must therefore iclaim under A. S. Lawrence; who claimed the land by virtue of the trustee’s deed executed to him in 1917. There had been no payment of taxes for seven consecutive years up to that time by the plaintiff. The record shows that the lands were sold in 1920 for the nonpayment of taxes for the year 1919. William M. Biggers, the purchaser at the tax sale, received a tax deed on July 6, 1922. In 1923 he sold one of the lots to Fannie Boyce, and both lots were inclosed by a fence, and have been in the possession of said defendants ever since. Thu® it will be seen that the record does not bear out plaintiff in his contention. On the other hand, the clerk’s tax deed is in regular form, and gave color of title to William Biggers and Fannie Boyce. They-held adverse possession under this tax deed for two years prior to the bringing of this action, and acquired title thereby. Black v. Brown, 129 Ark. 270, 195 S. W. 673; and Culver v. Gillian, 160 Ark. 397, 254 S. W. 681.
Finally it is insisted that the decree should be reversed because the court erred in transferring the case to equity. In the first place, it may be said that the facts in the case are undisputed, and this court has held that a decree in equity will not be reversed, although the case was improperly transferred from law, where, under the law and facts, the judgment, if rendered at law, must necessarily have been the same. Eagle v. Oldham, 116 Ark. 565, 174 S. W. 1176, 1199. To the same effect see Clark v. Spanley, 122 Ark. 366, 183 S. W. 964; and Shapard v. Lesser, 127 Ark. 590, 193 S. W. 262, 3 L. R. A. 247. Moreover, Fannie Boyce asked for a reforma tion of the deed to her from "William M. Biggers, and this gave a court of equity jurisdiction in the case.
The result of our views is that the decree of the chancellor is correct, and it will be affirmed. | [
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Humphreys, J.
Appellees instituted suit against appellant in the circuit court of Phillips County upon a fife insurance policy, to recover one-half the damages occasioned by fire to a building on lot 22, block 19, in West Helena, Arkansas. The property was insured against loss by fire in two companies, the policy in question hav ing been issued by appellant. For this reason suit was brought against appellant for only one-half of the alleged loss. The policy contained a paragraph for the appraisement of the loss by arbitrators in case the parties could not agree between themselves. It provided that each party might choose an appraiser, and that the two chosen should1 select an umpire, and, if the appraisers could not agree upon an umpire, either party might apply to any court of record in the county .to obtain one. It was alleged in the complaint that the parties could not agree upon the amount of damage, and that appellant chose J. A. Sullivan and appellees F. O. Cannon as appraisers; that the appraisers failed to select an umpire, whereupon appellees applied to and procured the appointment of B. J. Bruen as umpire by the circuit court of said county; that, after proper notice to the parties, F. C. Cannon and B. J. Bruen made and estimated the entire damage to the building at $3,073.10.
The cause was submitted upon the pleadings, the testimony adduced, and the instructions of the court, which resulted in a verdict and judgment against appellant for $1,506.38, including interest, from which is this appeal.
Appellant contends for a reversal of the judgment upon the ground that the evidence is insufficient to support the amount of the verdict. We cannot agree with appellant in this contention, for two reasons.
In the first place, there was an arbitration and award conformable to the provisions contained in the policy, and the award exceeded in amount the verdict and judgment. An award will not be set aside unless the result of fraud or mistake, or of the misfeasance or malfeasance of the appraisers. Niagara Fire Ins. Co. v. Boone, 76 Ark. 153.
In the next place, E. C. Hornor testified positively that appellees were damaged in the amount of the award. It is argued that his testimony was impaired because, in his proof of loss dated January 23,' 1922, he fixed the entire amount of damage to the building at $2,123.05. Mr. Hornor explained that he based the proof of loss on an estimate made by H. H. Walters, and that afterwards he ascertained that Walters had omitted many items of damage which should have been included in the estimate. It is also argued that the estimates of damage to the building on account of fire made by E. P. Walker, in the sum of $752.19, and J. B. Lyle in the sum of $1,510.25, a short time after the fire, are proof conclusive that the verdict was exc.essive. Mr. Hornor testified that these estimates omitted many items of damage resulting from the fire.
The weight of the testimony and credibility of the witnesses were questions for the jury, and not for this court on appeal. There is evidence of a substantial nature in the record tending to support the verdict, so we will not disturb it.
No error appearing, the judgment is affirmed. | [
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Smith, J.
In 1920 appellant, Joy Rice Milling Company, hereinafter referred to as the company, was engaged in the milling of rice at Wheatley, Arkansas, and appellees were engaged- in growing rice in that vicinity during that year. Some time prior to 1920 there had been formed an association known as the Southern Rice Growers’ Association, hereinafter referred to as the association, the purpose of which was to advance the interest of rice growers by putting rice on the market most advantageously and by advertising and other propaganda to increase the consumption of rice as an article of diet.
The members of this association gave over, to the officers thereof the control of their rice for purpose of sale, and the association itself, for the benefit of its members, entered into a contract with the company whereby the rice of the members should be milled by the company for a dollar per bushel and the by-products, and it was agreed that the company should collect for the association eight cents per bushel as membership dues, and should also collect five cents per bushel, which was to be expended by the association and the company for advertising and propaganda purposes. The contract between the company and the association required the company to make certain advances on the rice of the members which had been delivered to and milled by the company, and in consideration of this obligation, the right was given to the company to sell the rice of the owners to whom advances of money had been made. The contract between the association and the company contained the provision that the rice was to be sold only by and with the consent of the association, acting through its duly authorized agents, but the company reserved the right to sell the rice belonging to the members of the association and that of other owners to whom advances of money were made. Pursuant to the provisions of the contract, advances were made by the company to certain of the members of the association. The company also made advances to certain persons who were not members of the association, and these advances were evidenced by the promissory notes of the owners of rice to whom advances were made, and these notes conferred on the company authority to sell the rice of such owners at the best price obtainable and to deduct such advances and the interest thereon, and to account thereafter for any balance remaining due to the owner. There were a number of other rice owners, who were not members of the association and who had not borrowed money from the company, whose rice had been milled and was stored by the company.
The rice market was sluggish, and the price had depreciated during April and May, 1921, and the company had a large quantity of rice on hand at that time, and made sale of all the rice owned by the parties to this litigation. Indeed, the company appears to have sold all the rice on hand, and, about thirty days thereafter, rendered to each owner a statement showing the sale of his rice, and this statement was accompanied in each instance by a check payable to the owner, which recited that it was in full of the proceeds of the sale.
The sale thus made was not satisfactory to the owners, and they soon thereafter brought separate suits to recover the alleged market value of their rice. There were forty-six of these suits, but they were eonsolidated and tried together, and there was a general finding for the plaintiffs that the rice had not 'been sold for the market value thereof, which the court found to be three and one-half cents per pound, and that the members of the association who had been charged with the items which the contract between the company and the association required the company to collect for the association should not be charged to the members thereof, for the reason that the association had, prior to April 15, been adjudged a bankrupt and had ceased to function, and there was no showing that the company had paid to the association these items, and the company, by its appeal, questions the findings of the court adverse to it.
It was contended by the plaintiffs in all the cases that an exorbitant milling-' charge had been made, that the charge of a dollar per bushel should not be allowed in stating the account; but the court found against all the plaintiffs on this issue, and charged a milling fee of a dollar per bushel against each of the plaintiffs, and they have prayed and perfected a cross-appeal on that question.
There are certain issues common to all the cases, and these we proceed first to consider.
It is first contended by the company that it had authority to sell the rice, and that it obtained the best market price therefor; and it further contends that, even though the testimony supports an adverse finding to it on those issues, there was an accord and satisfaction as to all the owners who accepted and cashed the checks tendered in payment of the sales made by it for the account of the owners.
After a careful consideration of the testimony we have reached the conclusion that, in the case of one or more of the owners, express authority to -sell was conferred -by written direction to that effect, and that authority to sell was conferred on the company in the notes which had been executed to it by the owners who had borrowed money from it directly. It is earnestly contended that authority existed to sell the rice of the owners who were members of the association, and that this authority was conferred by the contract between the company and the association for its membership. But we do not think this contract conferred that authority, as sales could be made only by and with the consent of the officers of, the association acting for its members, and it is not contended that the consent of the officers of the association was obtained.
As to the owners who were not members of the association and who had executed no notes to the company, it is insisted, on behalf of the company, that authority to sell had been expressly conferred. The testimony on this issue is. sharply conflicting, although, as we have said, it does appear that certain owners conferred this authority. As to the majority of the owners, we have concluded that the sale was made without authority so to do. Indeed, as to one of the largest owners of the rice sold by the company, one who was not a member of the association and who had borrowed no money from the company, the testimony shows that the sale was made over the protest of the owner, and at á much smaller price than the owner had contracted to' sell a portion of his rice.
We have further concluded, however, that it is unimportant to differentiate between these owners, as we have concluded that the sale made by the company was not made in good faith, and was made at a price less than the market value of the rice, and, this being true, the company should be held accountable for the rice at its fair market value. This was the view of the trial court, as evidenced by the decree in the case, and we have concluded that this finding is not clearly against the preponderance of the evidence. On no -other theory could judgment have been rendered in favor of all the plaintiffs, as there was authority to sell expressly conferred by some owners, and, in the cases of the makers of the notes, authorization to sell was there conferred, yet judgment was rendered in favor of those plaintiffs as well as in the eases of those who clearly had granted no such authority.
One of the largest owners testified that, a few days before the company claimed to have made the sale, he obtained samples of his rice, and stated at the time that he desired these samples to enable him to sell the rice in Chicago, to which city he was going-in a few days for the purpose of selling his rice. This owner was in Wheatley,' where the mill was located and the rice was stored, on the day his rice was sold, which was on Sunday. This owner represented himself and twenty others in whose rice he was interested, a fact known to the company, and the transaction involved many thousands of dollars, yet he was not notified that a sale of this magnitude was impending, and he testified that he rode from Wheatley to Memphis on the afternoon of the day of the sale with the manager of the mill and the purchasers of the rice, yet no intimation was given him that his rice had been sold, and he was not advised of that fact until after his return from 'Chicago. These purchasers were ■shown to have arrived in Wheatley on the noon train and to have left for Memphis on the afternoon train, between four and five in the afternoon, between which hours the alleged sale was consummated.
It is true this plaintiff admitted that the company had previously sold some of his rice; but he also testified that no sale had ever been made previously until the offer of the purchaser had been submitted to and approved by him.
On behalf of another of the largest owners, the Murphy-Legg Land Company, it was shown that a sale of two cars of rice, at a price of four cents per pound, had been made, and that the owner had given orders to the company to ship out that quantity of rice, yet these instructions were disregarded. This owner was not a member of the association, had borrowed no money, and the testimony shows very satisfactorily that this owner was selling its own rice, and had never authorized the company to make any sale on its account, and it was not advised of the sale of any .of its rice until after it had ordered cars placed for the shipment of rice which had been sold in Kansas City and Chicago. Upon being advised of the sale of its rice ¡by the company, this owner filed suit in the chancery court to restrain the company from disposing of its rice, and obtained from the chancellor a temporary restraining order forbidding the company from disposing of the rice or from shipping it out. Although the company claimed to have shipped the rice before this order was obtained, a representative of the owner who went to the mill to demand the surrender of the rice discovered there rice belonging to his principal.
This is a circumstance which weighs heavily with us in considering whether the finding of the chancellor, that a grossly inadequate price was obtained, and one much less than might have been obtained, is clearly against the preponderance of the evidence. The owner had sold part of the rice for nearly twice the price at which the company sought to account for it, and, if the market price had been received, it would have been a matter of but little difficulty for the company to have replaced the rice the possession of which the owner was demanding. In settlement of this sale the company remitted the owner a check for $3,212.34 in full settlement of the proceeds of the rice; but this check was returned uncashed, and, when the owner brought suit to recover what the alleged to be the true market value of the rice, the company filed an answer admitting an indebtedness of $4,575.12.
We have concluded therefore that the finding of the court below that the company had not obtained the fair market price for the rice is not clearly against the preponderance of the evidence. . We think there was such a reckless disregard of the rights and best interest of the rice owners as warranted the court in charging the company with the actual market value of the rice. The testimony shows that the company had apparently decided to dispose of all the rice on hand, and it did so rather summarily, and a portion of the rice was sold to another rice company, whose president was also the president of the appellant company.
The testimony is conflicting as to what the market value of the rice was; but the testimony shows that the screenings from the rice, which were used for feeding stock, sold at two cents per pound. The court found that the market value of fancy rice at the time of the sale was three and one-half cents per pound, and stated the account ¡between the parties on this basis, and we have concluded that this finding is not clearly against the preponderance of the evidence.
As we have said, certain of the plaintiffs were members of the association, and the contract entered into by that association on their behalf with the company provided that the rice should be sold only by and with the consent of the association, acting through its duly authorized agent. Other owners had borrowed money and had executed notes, which conferred authority on the company to sell the rice of such owners; and still other owners had, by written direction, authorized the company to sell their rice; while other owners came within none of these classes, and their rice was sold without authority, and in one instance, as we have stated, over the protest of the owner and in violation of an order of the court forbidding that action.
We have-concluded that it is unimportant to distinguish those cases, for the reason that the company should be required to settle with each owner on the basis of the actual market value of the rice, rather than on the basis of the price received.
The duty of a factor under the circumstances was stated by this court in the case of Wynne v. Schnabaum, 78 Ark. 402, to be to exercise a sound and honest discretion, and that, when this is done, the factor has discharged his duty, the measure of the duty being to sell for the fair value or the market price. But, when the sale is made recklessly or in a manner to show that an honest effort was not made and reasonable diligence was not used to obtain the fair market value, the factor is held to account to his principal for the actual or fair market value of the article sold. Burke v. Napoleon Hill Cotton Co., 134 Ark. 580; Wynne, Love & Co. v. Bunch, 157 Ark. 395.
What we have just said also disposes of the defense interposed hy the company that certain of the owners cashed the checks which had been mailed them in payment of the proceeds of the sale of the rice. The checks mailed were for an undisputed amount due the respective owners. The money sent them was their own money, and the owners had the right to assume that, even though the company had, with or without authority, assumed the function of factor in selling the rice, that duty had been faithfully discharged, and, upon being advised to the contrary, the owners were not estopped to demand the respective amounts legally due them.
The court below allowed the company to charge the account of each of the plaintiffs with a milling charge of a dollar per bushel, and the plaintiffs have cross-appealed from that part of the decree. The testimony shows that, at the time when the price of the rice was high, the association had contracted on behalf of its members to pay a milling charge of a dollar per bushel, together with the by-products, and this was the price charged by all the mills, and was the price charged against the association members and all others. The testimony shows that this charge resulted in what appears to be an exorbitant profit to the company, in view of the depreciated price of the rice and the reduced cost of operating expenses of the mill. But this was the company’s price to all persons, and it was the price charged by all other mills. It was the contract price agreed upon by many of the plaintiffs, and known to others, and the owners who had not agreed to pay this price, or were not advised what the price was, would have no right to demand that their rice be milled at less than the company’s established price when the company did nothing to induce the belief on their part that they would be charged less than the customary price charged by the company and other mills engaged in the same business.
The company insists that it had the right to charge all owners with the association fees of eight cents per bushel and the fee of five cents per bushel for advertising purposes. As we have said, the contract between the association and the company did require the company to deduct for the association eight cents per bushel for association dues. This agreement was, of course, binding as to the members of the association, but it is not binding as to the owners who were not members of the association and who had not agreed to pay it.
The contract between the company and the association also required the company to collect from each member of the association five cents per bushel, to be expended in advertising purposes to extend the use of rice, and to expend itself, out of its own funds, a sum corresponding to the amount so collected from the members. But what we have said about the association dues is equally applicable to this item.
But the association became bankrupt on April 15, 1921, and it is urged that this fact terminated that contract, as the sales out of which litigation arose were made at a later date. The company insists, however, that it should be allowed to collect these fees, because it has been charged with them and will be held to account for them to the receiver of the association; that the association had, pursuant to the purposes'of its organization, and in anticipation of realizing revenues which would be derived-from its contract with the company and other similar contracts with other mills, expended money in advertising and -operating expenses prior to the bankruptcy of the association, and that it will be called upon to account to the association for these items, which its contract with the association required it to collect from the members of the association.
If, in fact, the association did incur obligations upon the faith of the collections which the company agreed to make from the members of the association, the company may be required to account to the receiver of the association for the -fees and dues which it should have collected on the rice milled by it during the time the contract between the company and the association was effective, and, for this reason, the company should have credit for such sums of money as it will be required to account for to the receiver of the association, and the decree of the court disallowing these items will therefore be reversed.
Of course, the company should not be allowed to collect these items unless it has been required to account for and pay them over to the receiver of the association, and any recovery on this account against those owners from whom this collection should have been made will be limited to such sums as the company is held liable for to the receiver of the association.
It follows, from what we have said, that the decree must be affirmed on the cross-appeal of the plaintiffs, and would be affirmed in its entirety but for the failure of the court to take into account the membership fees and the advertising charges which the company claims it will have to pay over to the receiver' of the association, and the decree will be reversed for the purpose only of adjudicating those items, and in all other respects it is affirmed. | [
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Hart, J.,
(after stating the facts). A vendor of land who has parted with the legal title has in equity a lien cm the land for the unpaid purchase money,- as against his vendee and subsequent purchasers with notice; and a subsequent purchaser will be affected with notice of all recitals in the title deeds of his vendor, whether recorded or not. If anything appears in such deeds sufficient to put a prudent man on inquiry, which, if prosecuted with ordinary diligence, would lead to actual notice of some right or title in conflict with that he is about to purchase, it is his duty to make the inquiry, and, if he does not make it, he is guilty of bad faith, or negligence, and the law will charge him with the actual notice he would have received if he had made it. Notice that part of the purchase money remains unpaid is sufficient notice. Gaines v. Summers, 50 Ark. 322; Graysonia-Nashville Lbr. Co. v. Saline Development Co., 118 Ark. 192; and Madden v. Suddarth, 144 Ark. 79.
Our statement of facts shows that A. N. Simmons conveyed this land by a warranty deed to J. S. Thomas on the 17th day of October, 1917.. The deed recites a consideration of $6,666.66, “in hand paid and to be paid by J. W. Thomas.”
On the 3rd day of December, 1918, J. W. Thomas and wife executed a warranty deed to said lands to L. D. Williams. The deed recites a consideration of $8,000, “one-third of which is paid in cash, and the remainder secured by a deed of trust on land, to us in hand paid by L. D. Williams, and the assumption of the sum of $3,333.33, same being two-thirds of a mortgage, the balance due on which is $5,000 in favor of A. N. Simmons.” The mortgage of L. D. Williams and wife to the Maxwell Investment Company, which was transferred to. the Union & Planters’ Bank & Trust. Company, was not executed until the 1st day of November, 1920;
The deeds from A. N. Simmons and wife to J. ¡W. Thomas and from J. W. Thomas and wife to L. D. Williams were both in the line of title of the Maxwell Investment Company, and that company transferred its mortgage from L. I). Williams to the Union & Planters’ Bank & Trust Company: The mortgagee and its assignee were subsequent purchasers and affected with notice of all recitals in the title deeds of their vendors.
L. D. Williams, when he purchased the land in controversy from J. W. Thomas, knew that the latter still owed A. N. Simmons a balance for the land, and gave Thomas his obligation for the amount. The deed recites that Williams assumed the sum of $3,333.33 which Thomas owed Simmons. The amount'Williams assumed to pay was a part of the consideration of his purchase, and was at the time a lien on the lands.
The Maxwell Investment Company could have ascertained this fact from inquiries suggested by the' recitation of the consideration in the deed from Thomas to Williams and by the deed from Simmons to Thomas. It will be remembered that the latter deed contains the recitation that it is for a consideration of $6,666.66, paid and to be paid by J. W. Thomas. An inquiry of Thomas or of Simmons would have revealed the fact that there was a balance of the purchase money due Simmons.
It is true that the abstract of title furnished the Maxwell Investment Company recited that the consideration to Simmons had been paid; but this recitation in the abstract of title necessarily could not control. If the Maxwell Investment Company was affected "with notice of all recitals in the title deeds of its vendor, it could not ignore these recitals and rely upon a recital in the abstract of title. In other words, a mistake in the abstract of title would not relieve it from making inquiries suggested by the deed in the line of its title. Neither would the fact that Williams made the statement that there were no liens on the land when he made his application for a loan relieve it from (mailing' the inquiries suggested, in the deeds just referred to. Any inquiry made by the Maxwell Investment Company to Thomas or Simmons would have disclosed the fact, that there was a balance of purchase money due Simmons, and that Williams had expressly agreed with Thomas to assume a part of this, and that the amount he assumed to pay was a part of the consideration of his purchase from Thomas. •
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Humphreys, J.
This suit was brought by appellees against appellants in the chancery court of Howard County to foreclose a vendor’s lien for unpaid purchase money against all that part of the N% of the of section 36, township 7 south, range 27 west, north of Muddy Fork, in Howard County, Arkansas.
Appellants filed an answer and cross-complaint, interposing the defense that appellees had no title to the land when they conveyed it to them, and had acquired none since, and offering to rescind the contract of sale and purchase. In keeping with their offer to rescind their contract, they tendered a deed into court conveying said land back to appellees, and prayed for a judgment against them for the purchase money, which they had theretofore paid.
The cause was heard upon the pleadings and testimony adduced, which resulted in a judgment and decree of foreclosure for the unpaid purchase money of $433.18 and interest thereon, from which an appeal has been duly prosecuted to this court.
The record herein reveals the following undisputed facts: The land in question was formerly owned by the Nashville Lumber Company. This company executed a mortgage on all of its property in Howard and several other counties in Arkansas to the Lesser-Goldman Cotton Company for a large sum. The land in question was described in the mortgage, if at all, as “all property owned by the Nashville Lumber Company,' or afterwards acquired by it, in Howard and other counties in Arkansas.” The mortgage was foreclosed in the United States District Court for the Western District of Arkansas, Texarkana Division, and in all the proceedings the description of the property followed the description in the mortgage. The property was conveyed to the purchaser at the foreclosure sale, and by the purchaser at said sale to appellees under the same general description. Appellees however conveyed it under specific and definite description to appellants and placed them in possession thereof. Prior to the foreclosure proceedings aforesaid, the Nashville Lumber Company conveyed the land in question under specific and definite descrip tion to the Grays onia-Nashville Lumber Company, who still claims title thereto, but has never brought suit to evict appellants.
The instant suit was brought on March 28, 1923, and at that time appellants had been in actual possession of the land in question for several years, having moved upon same a short time after they purchased it on the 10th day of June, 1919.
The only questions arising on the appeal for determination by this court are, first, whether the general description contained in the Goldman mortgage, and the foreclosure proceedings thereunder, were sufficient in law to convey a title to the land; and second, whether appellants were in a position to interpose a defect or failure of title as a defense to a recovery of the unpaid purchase money.
(1) The general rule as to the sufficiency of a description to pass title to land under deed or mortgage in this State is that it shall be described with sufficient certainty to identify it. If not particularly and certainly described in the deed, the deed itself must make reference to something tangible by which the land can be located. Doe ex dem. Phillips Heirs v. Porter, 3 Ark. 18; Tolle v. Curley, 159 Ark. 175. The deed itself must furnish a key by which the land sought to be conveyed may be identified, and the real question in this case is whether the reference to ownership of lands in a certain county and State will accomplish this purpose. It will be observed that the description in the mortgage and foreclosure proceedings in the instant case embraces all the property owned by the Nashville Lumber Company in Howard and certain other counties in Arkansas. . Of course, a reference to a part of the lands owned by said company in said counties would be too indefinite and uncertain to pass title to any lands, but we think the description covering all the lands owned by said company in said counties is definite enough to satisfy our registration laws, and was constructive notice to all parties dealing with lands owned by said company in said counties. This exact point has never been decided by this court, but the rule thus announced is in accord with the weight of authority, and follows the rule laid down by the Supreme Court of the United States. Wilson v. Boyce, 92 U. S. 325; Harmon v. James, 45 Amer. Dec. 296 (Miss.); Roehl v. Haumesser, 114 Ind. 314; Higgins v. Higgins, 121 Cal. 489; Strouse v. Cohen, 113 N. C. 349; Smith v. Westall, 17 Tex. 509; Devlin on Deeds, § 1013; 8 R. C. L. 1076.
(2) Moreover, if the description were defective, appellants are not in a position to interpose a defect or failure of title as a defense to the recovery of the unpaid purchase money. Appellants remained in possession of the land for several years after purchasing same, and made no effort to rescind the contract on account of a defect or failure of title. Even if such a defense were permissible in .a suit for purchase money before eviction, a question unnecessary to determine, appellants, by lapse of time, have forfeited the right to rescind the contract. An offer to rescind a contract must be made within a reasonable time after having had an opportunity to discover the grounds therefor.
No error appearing, the decree is affirmed.
Chief Justice McCulloch and Mr. Justice Smith concur. | [
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Wood, J.
This action was instituted by the appellants against the appellee. The appellants alleged that a judgment was obtained against them in the Hot Spring-Chancery Court, which was declared a lien against a certain lot in Malvern, Arkansas, and the lot was ordered sold to satisfy the judgment; that,,on the day of sale, Alice Wilson, acting as agent of Creen Eason, entered into a contract with W. W. Wheeler to buy in the lot for appellants, with the understanding that they were to pay Wheeler the amount bid by him with ten per cent, interest until the amount for which the lot was sold and the costs of suit were fully paid to Wheeler; that, in pursuance of such agreement, Wheeler bought the lot for the appellants, and, by agreement of appellant with him, a deed to the lot was to be made to Wheeler to secure him against loss until the amount was fully paid; that, under the contract, when the amount was fully paid, Wheeler was to deed the lot to Eason; that Wheeler paid the sum of $228.62 for the lot, and that appellants had paid appellee on this sum $98, and tendered him the balance, and asked that he perform his part of the contract to convey to Eason the lot in controversy, which appellee refused to do. Appellants prayed that appellee he required to perform his contract.
Appellee answered denying all the allegations of the complaint, and set up, by way of cross-complaint,that appellant Eason was in the unlawful possession of the lot, and had been since the 5th day of December, 1921; that by .reason of such possession, the appellee had been damaged in the sum of $112. He prayed judgment for the possession of the lot, and for damages.
The testimony for the appellants followed closely the allegations of their complaint. It was shown, in addition to these allegations, that the lot in controversy was worth about $1,000. The appellants testified to the contract as set up in their complaint, and that appellee bought the lot pursuant to this contract, and refused, after they had paid him the sum of $98, to receive the balance of the purchase money paid by him for the lot, and refused to make Eason a deed.
Alice Wilson testified that, on the day of the sale, she told certain parties that the appellant had entered into the contract with appellee to buy the lot in for Eason, and these parties corroborated her testimony in that respect. There was also testimony to the effect that the party who held the judgment against the appellants for which the lot was sold, heard his son say that the appellee purchased the lot for the appellants.
The appellee testified that he never made any agreement with the appellants to buy the lot in controversy. He bought the lot on the day it was dated for sale, and paid the money to the commissioner and received his deed; that he never agreed to buy the propery in for anybody; that the appellants had not paid him the sum of $98 on the purchase money. After appellee bought the lot, he told Eason that he would have to pay the sum of $7 per month rent for same. Appellee did not receive any rents from Eason, and had him arrested -on one or two occasions for failure to pay the rent. Eason had paid only the sum of $15.80 for the whole time ho had been there. Appellee, since his purchase, had continu ously paid the taxes on the property. The property had a value of about $500. Eason lived on the property at the time appellee bought the same in 1921, and had been living on it ever since.' The appellee further testified that Alice Wilson came to see him on the day of the sale and asked him if he would buy in the property, and he told her he didn’t want to fool with it in the condition it was in.
The appellants testified, in rebuttal, that they never agreed with the appellee at any time to pay rent on the place.
The trial court dismissed the appellants’ complaint for want of equity, and entered a decree in favor of the appellee for the possession of the property and the sum of $129.56, balance due appellee on the rents, from which decree is this appeal.
The appellants seek to establish a trust ex maleficio on the part of the appellee concerning the lot in controversy, under the provisions of § 4868, Crawford & Moses’ Digest, as follows:
“Where any conveyance shall be made of any lands or tenements, by which a trust or confidence may arise or result by implication of law, such trust or confidence shall not be affected by anything contained in this act.”
The alleged contract between the appellants and the appellee concerning the lot in controversy was oral, and was void and unenforceable under the statute of frauds, unless the testimony was sufficient to prove an implied trust under the above statute. See § 4867, C. & M. Digest.
In LaCotts v. LaCotts, 109 Ark. 335-337, we said: “We are of the opinion that, according to the proof adduced, this case does not contain any elements of a trust ex mlaleficio, for the reason that the proof does not show that appellant procured the title by the commission of any fraud. Putting it in the strongest light, the testimony adduced by appellee only tends to establish a promise on the part of appellant to purchase the land and hold it for appellee, and a .breach of that promise. This alone is not sufficient to establish a trust ex maleficio. Spradling v. Spradling, 101 Ark. 451.” Under the facts of that case, we held that the proof was not sufficient to show any positive fraud on the part of the purchaser of the land at the sale by which he procured the title. But if the appellee, in the case at bar, procured the title in the manner alleged by the appellants, then appellee would be guilty of a positive fraud, and should be declared a trustee ex maleficio of the lot in controversy, under the doctrine announced by Prof. Pomeroy and quoted by Judge Riddick, speaking for this court, in Ammonette v. Black, 73 Ark. 310, as follows: “A second well-settled and even common form of trusts ex maleficio occurs whenever a person acquires the legal title to lands by means of an intentionally false and fraudulent verbal promise to hold the same for a certain specified purpose — as, for example, a promise to convey the land to a designated individual, or to reconvey it to the grantor, and the like — and, having thus fraudulently obtained the title, he retains, uses and claims the property as absolutely his own, so that the whole transaction by means of which the ownership is obtained is in fact a scheme of actual deceit. Equity regards such a person as holding the property charged with a constructive trust, and will compel him to fulfill the trust by conveying according to his engagement. There must, of course, in such cases be an element of positive fraud by means of which legal title is wrongfully acquired, for, if there was only a mere parol promise, the statute of frauds would apply.” See also Bray v. Timms, 162 Ark. 247.
According to the testimony of the appellants, the appellee intentionally deceived them when they were seeking to make arrangements to have some one purchase the lot, by telling them that he would purchase the same and take title in his own name as security and allow them to repay him the purchase monev. It is manifest that, if this testimony of the appellants be true, appellee, by these false and fraudulent representations, deceived the appellants and caused them not to proceed further to make arrangements to purchase the lot, which they might have done hut for such promises and representations upon the part of the appellee. But the burden was upon the appellants to prove that the appellee defrauded them in the manner alleged. The testimony of third parties, to the effect that Alice Wilson told them, on the day of the sale, that the appellee had agreed to buy the lot in controversy for the appellants, was not competent as proof in corroboration of her statements that such a contract was entered into between appellee and appellants. Such statements of Alice Wilson, in the absence of the appellee, were not binding on him, and there is no testimony in the record, except the testimony nf the appellants, to the effect that the oral contract was entered into as alleged by the appellants. The testi money of the appellee, on the other hand, is as strong to the effect that he did not enter into such a contract. With this conflict of testimony, we are convinced that the appellants have not established a trust ex maleficio under the requirements of the rule announced in Tiller v. Henry, 75 Ark 446, as follows: “Constructive trusts may be proved by parol, but parol evidence is received with great caution, and the courts uniformly require the evidence to establish such trusts to. be clear and satisfactory. Sometimes it is expressed that the ‘evidence offered for this purpose must be of so positive a character as to leave no doubt of the fact,’ and sometimes it is expressed as requiring: the evidence to be ‘full, clear and convincing’ and sometime expressed as requiring it to be clearly established.’ * * * Titles to real estate cannot be overturned by a bare preponderance of oral testimony seeking to establish a trust in opposition to written instruments. The conservatism of the courts has prevented the tenure of realty being based on such shifting sands.” See also Bray v. Timms, supra, and cases there cited to the same point.
The decree is therefore correct, and it is affirmed. | [
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Humphreys, J.
This is an appeal from an order made by the chancery court of the Fort Smith District of Sebastian County, on September 4,1924, awarding the custody of Dorothy Clayton to-her father, Joe O. Clayton, for the purpose of taking her to Texarkana -and entering her in the Patty Hill School, during the term which began September 8 of this year. On August 17, 1923, Nellie Clayton, the wife of Joe O. Clayton and mother of Dorothy Clayton, a girl child seven years of age, obtained an absolute decree of divorce from Joe O. 'Clayton upon, the ground that he had offered such indignities to her person as rendered her condition in life intolerable. In that decree the custody and care of the child was awarded to the mother, with privilege to the father to have the child one day every two weeks.
On June 10, 1924, Joe O. Clayton filed -a motion to modify the order made in said decree with reference to the custody of -said child, asking that he be given the custody of her for the-purpose of placing her in a school, and alleging, in support of the motion, that he had changed his conduct of life. On July 14,1924, the motion was heard, and an order was made leaving the child in the temporary custody of her mother, Nellie Clayton, with privilege to the father to have the custody of the child one-half the time, and taking under advisement that part of the motion requesting the privilege -of placing her in some school of his own selection. With reference to this feature of the motion the decree contains the following paragraph:
“It is further ordered -that, when defendant shall have arranged for the placing of the child in a school of his choice, he submit the same in writing to the court, on notice to plaintiff; provided that, in any such plan, defendant make due provision for the privilege of plaintiff to visit the child, at stated reasonable times, including the reasonable expense thereto to plaintiff. Accordingly, this hearing, so far -as defendant’s motion to be awarded the privilege to place the child in school -of his choice is concerned, is continued.”
On September 4, 1924, without any notice having been given to Nellie Clayton, and without knowledge on her part, the court entered an order permitting,Joe O. Clayton to place his daughter in the Patty Hill School at Texarkana, at the term beginning on September 8. There was a provision in the order directing the sheriff to deliver Dorothy to her father for that purpose, and requiring him to return -her to Port Smith at the expiration of the term, for orders touching her custody during the vacation period. This is the order from which an appeal has been prosecuted to this court, and is an order from which an appeal will lie. Weatherton v. Taylor, 124 Ark. 579. A motion was subsequently filed by Nellie Clayton upon notice to Joe O. Clayton for a modification of the order, but, as we understand from the reading of the order dismissing the motion, it was summarily dismissed without a hearing thereon, because the allegations therein called for a reiteration of testimony which had theretofore been heard by the learned chancellor and of facts with which he was familiar. We cannot agree with counsel for appellee that the motion which Nellie Clayton filed to modify the order entered on September 4, and which was summarily dismissed by the court on the 19th of September, has estopped her from taking an appeal from the order entered on September 4, which, as heretofore stated, was an appealable order.
We think the court erred in entering the order of September 4 without a notice to or without the knowledge of Nellie Clayton, to whom the custody of her child had been awarded, until a plan for schooling her had been matured and presented to the court by Joe O. Clayton, after notice to Nellie Clayton. The order of the court of date July 14 contained a provision that she should have notice when the plan for educating the child should be presented to the court for consideration. The plan presented to and adopted by th’e court had the effect of sending the child to a distant city and into another chancery district, which would necessarily result in depriving the mother of seeing and1 visiting her seven-year-old daughter at reasonable times and opportunities. The order was of vital importance to the mother as well as the child, because it severed, for the time being, the natural tie between mother and daughter, and should not have been entered without an opportunity to the mother to be heard. The evidence upon which the order was based was taken orally before the court, in the absence of Nellie Clayton, so she had no opportunity to make up a bill of exceptions which might enable her to present the case heard by the trial court, to this court for trial dé novo on the merits. She should have been accorded this privilege.
On account of the error indicated the order is reversed, and the cause is remanded for proceedings not inconsistent with this opinion. | [
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McCulloch, C. J.
The city council of Little Rock passed an ordinance, on petition of ten of the owners of real property in the affected area, creating a street improvement district for the purpose of paving parts of certain connecting streets, and, within three months after the publication of the-ordinance, a petition, signed by a majority in value- of the owners of real property in the district, asking for the construction of the improvement, was presented to the city council. The last petition contained a stipulation that the cost of the improvement should not exceed fifty per centum of the value of the real property in the district as shown by the last county assessment. The city council found that the last petition contained a majority in value of the owners of real property in the district, and thereupon passed the second ordinance, appointing the board of commissioners of the district authorized by statute to construct .the improvement. Plans were formed for the improvement, and the cost thereof was estimated to be $29,385.65. The commissioners, according to the allegations of the complaint in this action, have proceeded to assess benefits, ,and are about to proceed with the construction of the improvement.
Appellant is the owner of real property in the district, and instituted this action to restrain further proceedings on the ground that the estimated cost of the improvement will exceed fifty per centum of the value of the real property in the district as shown by the last county assessment.
An answer was filed by the commissioners of the district denying that .the estimated cost would exceed the percentage stipulated in the petition of the property owners. There was a trial on this issue, and the court sustaiiied the contention of the commissioners, and dismissed appellant’s complaint for want of equity.
The decision of the case involves an interpretation of the statute enacted by the General Assembly of 1921 (Acts 1921, p. 416) amending § 5666, Crawford & Moses’ Digest, the amendatory act reading, in part, as follows:
“The petition for such improvement, signed by a majority- in value of the owners of the real property in the district, shall -specify what percentage of the value of -the real property in the district, as shown by the last county assessment, the said improvement shall not exceed in cost; and any improvement may be undertaken which in cost does not exceed the percentage of the value of the real property in the district specified in the petition.”
The boundaries of the district included all land abutting on- either of the streets to be improved and within one hundred and fifty feet of either of said streets, and it appears from the allegations of the complaint, and the plat of the affected area, that most of the lots in the district are irregular in size and shape, so that some of them are more than one hundred and fifty feet deep and some less, and the result is that parts of some of the lots are beyond the boundaries of the district. This situation is more fully and accurately described in the opinion of this court in the recent case involving the validity of the organization of this district. Hill v. Walthour, 165 Art. 243.
It appears, from the iast assessment book of the county, that the aggregate assessed value of the lots lying wholly within the boundaries of the district is $24,080, which is less than the estimated cost of the improvement; but appellees introduced witnesses to prove that a fair apportionment, according to the last county assessment, of the parts of lots situated in the district, added to the assessed value of all of the lots lying wholly within the district, would amount to the aggregate sum of $64,400, which is more than double the estimated cost of the improvement.
It is the contention of appellant that, under the statute, the last assessment for county taxation affords the sole test of value without considering extraneous evidence, whereas the contention of counsel for appellees is that the statute means only that the county assessment list shall be accepted as the basis for ascertaining the value, and that, where a whole lot assessed as a unit lies partly inside and partly outside of the district, evidence may be taken to ascertain the proportionate value of that part of the lot lying inside of the district on the basis of the value of the whole as fixed by the county assessor.
We are of the opinion that the contention of appellant is sound and that the statute does not admit of any test of value other than the face of the assessment rolls. Similar language is used in the statute with reference to ascertaining the majority in value of property owners asking for the improvement ('Crawford & Moses’ Digest, $ 5653), and we have decided that it means that the investigation must be confined to the face of the assessment, without considering omitted property or property hearing a double assessment. Improvement Dist. No. 1 v. St. Louis S. W. Ry. Co., 99 Ark. 508; Malvern v. Nunn, 127 Ark. 418.
In the case first cited above, the court, after reviewing the method of assessing property for county purposes, said:
. “The valuation of the various properties thus made and placed upon the county- assessment list gives, we think, with greater approximation, the true and uniform, valuation of all the real property in an improvement district than any other mode of procedure. It is true that property may escape from the county assessment, but, under any other system or investigation, juridical or otherwise, this can and will occur. On account of the great divergence in the testimony of witnesses as to the value of property, 'the county assessment is a better criterion for determining the true valuation of all the property in any proposed district than a determination dependent upon such divergent testimony. If it is said that we should take the values of the real property, as shown by the county assessment list, and then find the real property which has been omitted therefrom to be added thereto, and, by the testimony of witnesses, determine the value of this omitted property, then it will be necessary to determine, from the conflicting testimony, the true value of such omitted real property, and, in order to equalize this value with that upon the county assessment, it will be further necessary to find and determine the actual value of all the property appearing upon the county assessment in comparison with • its assessed value, so as • to make equal and uniform the value that shall be placed upon the omitted property. Taking into consideration the care, diligence, and safeguards that are provided for in making the county assessments, we are of the opinion that, in comparison with any other system' of procedure, it will give with greater approximation the true and uniform value of all the real property in any proposed improvement district. The provisions of the statute prescribing that the city council shall be governed by the valuation placed upon the property as shown by the last county assessment, in fixing the value of property in a proposed improvement district as a basis for determining whether a majority in value of the property owners have signed the petition, does not, we think, contravene any constitutional requirement.”
It was the manifest design of the lawmakers, in making the last assessment list the sole evidence of value, to adopt a definite and certain test not dependent upon the judgment or discretion of any one except the assessing authorities of the county. The difficulty in the present case grows out of the unusual size and shape of the lots - in the district, and this unusual situation could not have' been in the minds of the framers of the statute. We take notice of the almost universal custom of laying out lots and blocks of uniform size in cities and towns, and our statute in regard to the duty of assessing officers for ordinary tax purposes to assess each lot separately as a unit: Crawford & Moses’ Digest, § 992'8.
The statute now under consideration was passed, doubtless, with reference to the provisions of the other statute just referred to, and there was no thought in the legislative mind of it becoming necessary to break up a unit of value adopted by the county assessor pursuant to statutory directions, in order to ascertain the proportionate value of a lot lying partly outside of an improvement district. It may result that the adoption of the face of the assessment list as the sole test of value of property in a district will thwart the plan for constructing the improvement, and might, as to property similarly situated, prevent the formation of a district. But that results, not from a defect in the law, but from the extraordinary and unusual circumstances affecting this particular district. The formation of a district is the voluntary act of the owners of property, under authority of the statute, and, in order to form such a district, they must bring themselves and the affected property within the provisions of the statute. If the situation of a given area is so peculiar that the law does not admit of it being organized into an improvement district, the difficulty is, as before stated, not with the law, but arises from the peculiar facts. We must therefore construe the statute to mean that, in determining the percentage of value, the face of the assessment list must be looked to as the sole test, and that the value of a lot constituting a single unit of value for assessment purposes, lying partly inside and partly outside, cannot be considered and its proportionate value ascertained by evidence aliunde.
It is further contended that, according to the evidence adduced, the value of the parts of lots lying outside the district is negligible, and for that reason should be discarded and not considered. It is true that a witness testified that, in his opinion, the value of the lots outside the district was negligible, but that is a mere matter of opinion, and it was the design of the statute not to leave the question of value to the opinions of witnesses in an investigation by the court to determine that value, the statute having made the assessor’s list the sole test. It certainly cannot be said that the area constituting the parts of lots outside the district should be excluded on the doctrine of de mimmis. It is shown that substantial portions of the lots lie outside of the district, in some instances as much as fifty feet of the back end of the lots.
Our conclusion is that, according to the only test afforded by the statute, the cost of the improvement will exceed more than fifty per centum of the valuation of the real property in the district according to the last assessment, and that the commissioners have no power to proceed with the improvement.
The decree of the chancery court is therefore reversed, and the cause remanded with directions to enter a decree in accordance with the prayer of appellant’s complaint. | [
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Kirby, J.,
(after stating the facts). Appellants insist that, upon a correct construction of the provision of the building contract relative thereto, the amount per day provided and required to be paid.and allowed to be charged against the contractor for the time required to construct and finish the improvement beyond the time it was agreed to be finished, should have been charged, and that the court erred in not rendering a judgment for the full amount claimed as liquidated damages by the board for such delay, and this contention must be sustained. The authorities are reviewed and the rule for assessment of liquidated damages again announced in Robbins v. Plant, 174 Art. 639, 297 S. W. 1027, 31 L. R. 491.
Said article 6 binds the contractor to the completion of the building not later than June 24, 1926, and to the payment to the owner as liquidated damages the sum of $50 per day for each day the building remains uncompleted after said date; that additional time, for delays beyond the contractor’s reasonable control, is only to be allowed when approved in writing by the architect, and that it is expressly understood that said sums of money are agreed upon as the amount due the owner as liquidated damages for the owner’s inability to use said building.
The damages for the breach of the contract in respect of delay in the completion of the building are in their, very nature uncertain and difficult of ascertainment, it being well-nigh impossible to prove any pecuniary loss to the board or the State on account of it, all of which was recognized by both parties thereto, and it was expressly agreed that such amount should be regarded as liquidated damages.
In Rutherford v. Kohler, 174 Ark. 894, 298 S. W. 9; Robbin v. Plant, supra, the court quoted from Wait v. Stanton, 104 Ark. 9, 147 S. W. 446, which had passed upon precisely the same as article 7, already set out herein, and held: “The obligation of the contractor to make claim for an extension was a condition precedent to his right thereto.”
There is no evidence showing that the contractor made any claim to the architect for an extension of time, in accordance with said article 7 of the contract, or otherwise, at any time during the period of the claimed delays, or at all, before the completion of the building. Nor does the proof show nor is it even claimed that the delays were caused by the act, neglect or default of the owner or its architect. Then, too, the architect testified that the contractor was not entitled to an extension of time on account of any of the delays, because they resulted from his own failure to order and arrange for procuring his materials on time, as he was bound under the contract to do.
The architect’s decision was binding on the contractor, too, in the absence of fraud or such gross mistake as necessarily implied bad faith on the part of the architect, and none such was even alleged, nor was there any proof conducing to that effect. Boston Store v. Schleuter, 88 Ark. 213, 114 S. W. 242; Carlile v. Corrigan, 83 Ark. 136, 103 S. W. 620; Federal Grain Co. v. Hayes Grain Commission Co., 161 Ark. 51, 255 S. W. 307; Hayes Grain Commission Co. v. Federal Grain Co., 169 Ark. 1072, 277 S. W. 521; U. S. v. Gleason, 175 U. S. 588, 20 S. Ct. 23, 44 L. ed. 284; Ripley v. U. S., 223 U. S. 695, 32 S. Ct. 352, 56 L. ed. 614.
The board did allow the contractor for 14 days’ ■ extension of time for delay claimed by him to have been caused by frequent rises' in the river, preventing his being able to get the sand necessary for the construction, notwithstanding the architect’s judgment that he was not entitled to it, but this constituted no waiver of its right to insist upon the stipulated damages for all the rest of the delay in the completion or construction and delivery of the building, as the lower court erroneously held.
The judgment is accordingly reversed, and, the contractor having been fully paid, as well as all other claims for construction of the building, the cause is remanded with directions to issue a mandamus to compel the Auditor to issue warrants for payment of the balance of the appropriation to the board, in accordance with the law and the prayer of the petition. | [
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Smith, J.
Appellant brought this suit against R. E. Jones to collect a sum of money alleged to be due him for the board of a crew of men who had been engaged in drilling a well for oil and gas, and who bad been employed by Jones and the Lone Star Drilling Company. Appellant attached 'an automobile) then in the possession of Jones. The Excelsior Motor-Car Company and the First State Bank of Corsicana, Texas, both Texas corporations, filed interpleas. The motor-car company claimed the attached property as its own, and the bank claimed the right of possession under a mortgage executed to it by the motor-car company. At the trial of the cause the court directed the jury to return a verdict in favor of the bank, and continued the cause as to' the motor-car company, and this appeal is from that judgment.
At the trial testimony to the following effect was offered: There was introduced in evidence a bill of sale from the Trinity Drilling Company to the Excelsior Motor-Car Company for an automobile, which was identified as the one attached. The secretary of the motor-car company testified that that company bought the automobile from the Trinity Drilling Company and received a bill of sale therefor, wihch was exhibited. This witness further testified that the mortgage from the motor-car company to the bank, which was also offered in evidence, had been executed by it. E. Jones as president of that company, but, on her cross-examination, stated that there was nothing in the records of the company to show that Jones was president of the company or that he had any authority from the board of directors to execute this mortgage. The question which elicited his answer, however, was this: ‘ ‘ Who are and have been the officers of the Excelsior Motor-Car Company for and during’ the last twelve months ? ’ ’ The date of the mortgage shows that it was not executed during the period of time covered by the question.
The mortgage was offered in evidence, and attention is called to the fact that it was not attested by the secretary and does not bear the seal of the corporation.
There was offered in evidence the articles of incorporation of the motor-car company, from which it appears that Jones was, in fact, one of the three incorporators, and that his name first appeared.
The motor-oar company is a party to this litigation, and does not dispute the existence or validity of the mortgage which Jones executed in its name, and has not appealed from the judgment of the court, which contained the finding that the bank is entitled to the possession of the car by virtue of this mortgage. The cashier of the bank testified that, at the time the loan was made to the corporation, Jones represented himself as being* its president, and executed and acknowledg*ed the mortgage as such, and after its delivery to the bank it was duly recorded in the county in which it was executed, and that the indebtedness secured by the mortgage had not been paid, and that the automobile h'ad been removed to this State without the knowledge or consent of the bank.
The undisputed testimony shows a sale of the automobile to the motor-car company, and the defendant in the attachment suit was not therefore its owner, and we think there was no question about the validity of the mortgage for the jury to decide. The mortgagor does not question its validity, and it was executed in its name by an officer who purported to act as its president. The pleadings in the case do not raise the question whether Jones had authority to execute the mortgage, which was referred to in the interplea, a copy of the mortgage being thereto attached.
We think the testimony is undisputed that the defendant in the attachment suit was not the owner of the attached property — the automobile — and, this being true, the question is whether the bank made a prima facie showing that if was entitled to its possession. We think this showing was made. The mortgage was a Texas contract, duly executed and recorded in that State. It was executed in the name of the motor-car company, by a person who professed to be its president. The motor-car company is a party to this litigation, and did not, and does not, question the validity of the mortgage. It is true, as we have said, that no showing was made that Jones was authorized to execute the mortgage by any action of the board of directors; but we do not think this failure of proof made an issue concerning its validity which should have been submitted to the jury.
In the case of Brownwood Ice Co v. York Mfg. Co., 37 S. W. 339, a chattel mortgage had been executed by the president of a corporation alone, and, in litigation which involved its validity, the Court of Civil Appeals of Texas said: “These mortgages were executed apparently by the authority of the defendant corporations. It is true, no by-law or resolution of the 'board of directors of these ice companies is shown authorizing the execution of the notes and mortgages, but they were executed by the president on behalf of the companies, and it will be presumed, in the absence of any evidence to the contrary, that he had authority to bind the companies in these particular instances. The law does not presume that these notes and mortgages were executed for purposes beyond the scope of the corporate authority of the companies. The presumption is that the notes and mortgages are valid and binding upon the companies; and, if such was not the case, the burden rested upon the corporations to show that they were executed for a purpose and under such circumstances as would not bind them, which was not done in this case. Therefore the judgment will be affirmed.”
The question was again considered by the Court of Civil Appeals of Texas in the case of Peyton v. Sturgis, 202 S. W. 205, where the court said: “The first contention is, in substance, that the mortgage is void because it appears that the person executing it was, at most, an officer or stockholder, and not authorized by the corporation to do that which he assumed to do. Confining our remarks and the application thereof to the precise facts of the present case, it must be conceded that, while a corporation may mortgage its property to secure payment of its debts when solvent (article 1162, Vernon’s Sayles’ Stats.), ordinarily that authority does not inherently exist in any officer of the corporation as such, but must in all cases be conferred by the board of directors. Article 1159, Vernon’s Sayles’ Stats.; Henderson Merc. Co. v. Bank, 100 Tex. 344, 99 S. W. 850. However, it is the rule that, when such acts are done by the president or vice president of the corporation, they are apparently authorized by the corporation, since such officers are the appropriate ones to exercise such functions, and their acts will be presumed to be corporate acts, in the absence of a showing that such officers were not so authorized. Ballard v. Carmichael, 83 Tex. 355, 18 S. W. 734; Brownwood Ice Co. v. York Mfg. Co., 37 S. W. 339.”
In that case the chattel mortgage had not been executed by the president, but by the secretary and treasurer, and, after saying that a mortgage so executed could not be said to have been signed with apparent authority, for the reason that the secretary and treasurer is not ordinarily the appropriate officer to perform such acts, the court found that the appellant was estopped to question the authority even of the secretary and treasurer, for the reason that the company, which had not perfected its corporate organization, had received the money which the mortgage was given to secure.
We conclude therefore that the verdict was properly directed in favor of the bank, and that judgment is affirmed. | [
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Humphreys, J.
What we have said in the case of W. D. Stroud v. State, No. 3029, is decisive of the case of Floyd Stroud v. State. These are companion cases. The appellants are brothers, and, while they were separately tried, they were each tried upon the theory that they had conspired together to cause the storehouse of R. A. Harkins & Company to be burned, and that, pursuant to this conspiracy first formed between themselves, they had employed T. B. Wackerly to burn the building, or to procure some one to do so. Much of the testimony in the two cases is identical, and no useful purpose would be served in repeating it here or in restating the theory on which the State asked and secured a conviction.
The admission of the testimony in regard to the telephone conversation between Floyd McCuen and Floyd Stroud was condemned as erroneous and prejudicial in the case of W. D. Stroud, because it occurred after the consummation of the conspiracy and in the absence of W. D. Stroud.
But this testimony was admissible against Floyd Stroud, because it involved proof of something which he himself did, and proof of any act or declaration of the party on trial having probative value is admissible against him, even after the completion of the conspiracy.
The case against Floyd Stroud must, on the authority of what we have said in the W. D. Stroud case, be reversed, however, on account of the admission of the testimony of Roscoe Perkins. This witness testified that he knew both W. D. Stroud and Floyd Stroud, and remembered the occasion of the burning of the Harkins & Company building at Ratcliff. That W. D. Stroud had given him $100 in bills to deliver to the attorney who was representing Wackerly, and that he delivered this money to the attorney in Floyd Stroud’s store. The witness was asked: “Was it given to him (the attorney) in his (Floyd Stroud’s) presence?” and he answered, “Yes sir, but I could not say whether Floyd saw it or not.” He was also asked, “Where was Floyd Stroud?” and he answered, “Talking with the attorney when I gave him the money.” The witness had previously testified that Floyd Stroud did not know anything about the matter unless he had seen the witness give the attorney the money.
We do not think it sufficiently appears from this testimony that Floyd Stroud was a party to the payment of this fee, or that he knew what it was. No explanation of it was made at the time by the witness to the attorney, nor did the witness state that he told Floyd Stroud what he intended to do or had done. So far as the testimony shows, this may have been, and was, a transaction without significance to Floyd Stroud, and, in the absence of some showing charging him with knowl edge of the transaction, it would be like any other act of an alleged co-conspirator after tbe end of the conspiracy, and would be inadmissible, under the rule announced in the W. D. Stroud case, and, on account of the admission of this incompetent testimony, which was necessarily prejudicial, the judgment in the Floyd Stroud case will also be reversed.
McCulloch, C. J., and Smith, J., dissent. | [
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Smith, J.
On January 15, 1920, W. E. Rotenberry executed and delivered to Lasswell & Goble his promisr sory note, payable to their order, .for the sum of $750. Lasswell & Coble were indebted to the Union Bank & Trust Company, of Searcy, in the sum of $700, and they deposited the Rotenberry note with the bank as collateral to their own note. Rotenberry paid the bank $100 on his note to Lasswell & Coble, and the bank indorsed a credit therefor on the Rotenberry note, and applied the payment as a credit on the Lasswell & Coble note. At some time it was agreed that the bank should take the Rotenberry note in satisfaction of the Lasswell & Coble note. The exact date of this agreement does not appear.
On December 31, 1921, the bank loaned Rotenberry $2,391, and to secure this loan took two notes from Rotenberry on that date, one for $1,500 and the other for $891. On the date of this loan, Rotenberry executed a deed of trust conveying certain lands to secure the $1,500 note, and on the same date executed a chattel mortgage to secure the $891 note. The bank at that time held the note from.Rotenberry to Lasswell & Coble as collateral to the note of Lasswell & Coble, payablé to its order.
The deed of trust to the land described the $1,500 note, but did not specifically describe any other indebtedness. The chattel mortgage described the note for $891, but did. not describe specifically any other indebtedness. The deed of trust, however, contained this clause: “It is also agreed that the foregoing conveyance shall stand as security for the payment of any extensions or renewals of the whole or any part of said indebtedness by indorsement on the' above mentioned obligation or by the execution of new evidence of indebtedness in lieu thereof; also a-s security for the payment of any other liability or liabilities of the grantor, already or hereafter contracted, to the said Union 'Bank & Trust Company, until the satisfaction of this mortgage or deed of trust upon the margin of the records thereof, with interest at the rate of ten per cent, per annum.” The chattel mortgage contained a clause substantially similar.
On April 8, 1922, Lasswell & Coble brought suit on the note of Rotenberry payable to their order, and caused an attachment to be issued, which was levied on eight bales of cotton and a Ford touring car. The complaint in this case alleged that Lasswell & Coble were the owners of this note, and the testimony shows that the president of the bank authorized the institution of this suit, as agent for Lasswell & Coble, and the bank executed the attachment bond as surety.
The bank filed an intervention in this suit, alleging its ownership of the $700 note of Lasswell & Coble payable to its order, and that the note sued on of Rotenberry to Lasswell & Coble had been placed in its hands as collateral security to the Lasswell & Coble note, and that, by virtue of this transaction, the bank was the owner of the Rotenberry note. There was an allegation that the attached cotton was perishable, and a prayer that the court order it sold, and the circuit judge made this order.
Rotenberry filed a voluntary petition in bankruptcy, and was adjudged a bankrupt, and received his discharge as such. In this proceeding the bankruptcy court ordered the distribution of the proceeds of the sale of the cotton and some strawberries owned by Rotenberry.
An intervention was filed by the bank in that proceeding, in which the bank alleged its ownership of the note from Rotenberry to Lasswell & Coble, and that the same was secured by the chattel mortgage; but the court, after a hearing on that issue, adjudged that the chattel mortgage did not secure the note of Rotenberry to Lass-.well & Coble.
Thereafter the bank brought this proceeding to foreclose the deed of trust given it by Rotenberry, and alleged in its complaint that the note from Rotenberry to Lasswell & Coble was secured by that instrument.
An answer was filed by Rotenberry, denying that the deed of trust secured his note to Lasswell & Coble, and, upon the hearing of this issue, -the court found in favor of Rotenberry, but decreed that the land be sold in satisfaction of the $1,500 note of Rotenberry to the bank, and the bank has appealed from that decree.
"We are of the opinion that the deed of trust did not include the note from Rotenberry to Lasswell & Coble. It is true the bank held this note at the time of the execution of that instrument, but it held it only as collateral; and if the deed of trust was intended to secure this note, language less ambiguous should have been used to express that intent.
The deed of trust does provide that it shall stand “also as security for the payment of any other liability or liabilities of the grantor already or hereafter contracted to the Union Bank & Trust Company until the satisfaction of this mortgage or deed of trust upon the margin of the records thereof, with interest at the rate of .ten per.cent, per annum.’’
This language is unquestionably broad enough to secure any other or additional indebtedness incurred by Rotenberry to the bank, but we think it has reference to such, indebtedness as was directly incurred to the bank, and that this collateral note was not within the contemplation of the parties. A significant fact is that the. bank’s loans were at ten per cent. This was the interest charged in the note of Lasswell & Coble to the bank, and was also the rate specified in both the $1,500 note and the $891 note, and the language quoted above shows that this was the rate which the bank contracted to charge Eotenberry for all sums secured by the deed of trust, whereas the note from Eotenberry to Lasswell & Coble bore interest at the rate of eight per cent. only.
In the case of Martin v. Halbrooks, 55 Ark. 569, thé mortgage there sought to be foreclosed secured the specified sum named “and all other indebtedness which may then (November 1, 1889) be due.” Prior to November 1, 1889, the mortgagee bought a judgment which had b'een recovered against the mortgagor, and sbught to include the amount of this judgment in the indebtedness secured by the mortgage. Chief Justice Cockrill there said that one may execute a valid mortgage to secure a debt to be contracted thereafter, and that it is not necessary that the amount to be secured should be set out in 'the instrument, and that an unequivocal agreement in a mortgage that the instrument should secure all indebtedness of whatever nature that might be due from the mortgagor to the mortgagee, at a future date named, would not be invalid1 between the parties for the want of certainty. But he also said that the words, “and all other indebtedness,” would be construed to mean, in the absence of unambiguous language showing a contrary purpose, indebtedness of the same nature as that specifically described and within the purpose of the mortgage.
•So here we think the language set out' was intended to include all direct obligations of Eotenberry to the bank, of whatever nature, upon all, of which an interest charge of ten per cent, would be - made, and did not include the note from Eotenberry to Lasswell & Coble, which bore interest at the rate of eight per cent, only, and was held by the bank merely as collateral at the time tne deed of trust was executed.
Of course, the intention of the parties at the time of the execution of the' deed of trust, as expressed by the language therein employed, governs, and this purpose cannot be enlarged by parol agreement made at the time of its execution, or one subsequently made, to enlarge the indebtedness which should be secured. Briggs v. Steele, 91 Ark. 458.
We are reenforced in the view announced by the action of the bank in causing suit to be brought on the note of Botenberry to Lasswell & Coble by the last-named parties. The testimony shows that this was done by the bank as the agent and representative of Lasswell & Coble, and that the bank executed the attachment bond. It is not likely that the bank would have instituted suit in the name of Lasswell & Coble, as owners of the note, to enforce payment in their name, if it was the owner of the note and had the note secured both by the deed of trust on the land and the chattel mortgage on the personal property. Cox v. Harris, 64 Ark. 213; Liddell v. Jones, 76 Ark. 344; Jennings v. McIlroy, 42 Ark. 236.
It is true the bank intervened in this "attachment suit, but it did so not to assert any rights under the chattel mortgage, for the intervention made no reference to the chattel mortgage, .but it intervened for the purpose of praying that the attached property be ordered sold under ¿he attachment, and that the proceeds of such sale, be paid it as the holder of the note sued on as collateral to the note of the plaintiffs payable to’its order.
The decree is correct, and is affirmed. | [
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Wood, J.
This is an action instituted by the appellee against the appellants. The appellee alleged in substance that, on the 1st of July, 1920, the appellant, through his agents, requested the appellee to execute to appellant an oil and gas lease on property owned by the appellee; that appellant’s agents represented that, within three months, a well would be begun in the neighborhood of this land to ascertain whether oil or gas was in that territory; that it was represented that the lease was wanted for another year, and nothing was said about rental; that the appellee and his wife executed the lease in accordance with this understanding; that the appellee has since discovered that there is a provision in the lease for an extension from year to year for a period of five years, provided the appellant deposited to the credit of the appellee the sum of $15 per acre as a consideration for the extension of said lease annually; that the appellant has failed to comply with this provision of the lease, and has failed to drill on the land as required in the lease. The appellee alleged that the lease was therefore null and void, and prayed that the same be canceled and that their title be quieted in said lands.
The appellant answered as trustee, denying that there were any representations made excepting those set forth in the lease, and he denied that the rental was to be $15 per acre, but alleged that, instead, the rental was to be fifteen cents per acre, which fact the appellee knew at the time. Appellant further alleged that the fifteen cents per acre had been deposited according to the terms of the lease, and he asked that the appellees be compelled to accept that sum and that the suit be dismissed. He prayed, by way of cross-relief, that the lease be reformed so as to read fifteen cents per acre for rental, and fox-such other and further relief as he was entitled to.
The lease under review was a lease from the appellee, S: E. Halton, lessor, to J. W. House,'Jr., lessee, on 635 acres of land situated in Ouachita County, Arkansas, described therein. The lease was to remain in force for a period of five years from date, and ‘ ‘ as long thereafter as oil or gas, or either of them, is produced from the said land by the lessee.” Among other recitals constituting the consideration is the following: “If no well be commenced on said land on or before the 1st day of July, 1920, this lease shall terminate as to both parties, unless the lessee, on or before that date, shall pay or tender to the lessor, or to the lessor’s credit in the Camden National Bank at Camden, Arkansas, or its successors, which shall continue as a depository, regardless of changes in the ownership of said land, the sum of 15 per acre dollars, which shall operate as a rental to cover the privilege of deferring the commencement of a well for 12 months from said date. In like manner, and upon like payments or tenders, the commencement of a well may be further deferred for like periods of the same number of months successively. And it is understood and agreed that the consideration first recited herein, the down-payment, covers not only the privilege granted to the date when said first rental is payable as aforesaid, but also the lessee’s option of extending that period as aforesaid, and any and all other rights conferred. Should the first well drilled on the above described land be a dry hole, then, and in that event, if a second well is not commenced on said land within twelve months from the expiration of the last rental period which rental has been paid, this lease shall terminate as to both parties, unless the lessee, on or before the expiration of said twelve months, shall resume the payments of rentals in the same amount and in the same manner as hereinbefore provided. And it is agreed that, upon the resumption of the payment of rentals, as above provided, that the last preceding paragraph hereof, governing the payment of the rentals and the effect thereof, shall continue in force just as though there had been no interruption in the rental payments. ”
It is unnecessary to set out the testimony concerning the question as to whether the leases were procured through fraudulent representations by the agents of the appellant. The syndicate, for which J. W. House, Jr., was the trustee, procured the drilling of a well in the neighborhood or locality of the land in controversy prior to the expiration of one year, and procured the development of other wells. But no well was drilled on the l'and in controversy within one year. The appellant tendered fifteen cents per acre to the appellees, which they refused to accept, and appellees filed this action, on August 16, 1922, to forfeit the lease.
The appellant concedes that he'had not drilled a well on the lands in controversy on or before the first day of July, 1920, and has not yet drilled any wells on the land, but he contends that he did drill wells in the neighborhood of this land, and that such drilling was a compliance with the provisions of the lease by which the lease contract was terminated unless a well were begun on the land within a period of twelve months. The appellant also contends that this provision of the lease cannot avail appellee, for the reason that appellant had tendered to the appellee the fifteen cents per acre before the expiration of the year contemplated by the lease contract.
The appellant further contends that, although the five-year lease had expired since the institution of the suit by the appellee, nevertheless the appellee cannot avail himself of that fact, because the bringing of the suit by him entitled the appellant to an extension of time for the fulfillment of his contract until the litigation is concluded.
The trial court dismissed the appellant’s cross-bill asking for a reformation of the lease, for want of equity, and granted the appellee’s prayer terminating the lease and quieting the title to the lands involved in the appellee, from which is this appeal.
The lease was based upon a sufficient consideration, and was valid when made. We are convinced that there was no fraud upon the part of the agents of the appellant in its procurement.
In Epperson v. Helbron, 145 Ark. 566, we held (quoting syllabus): “An oil and gas lease for a term of ten years in consideration of $1, in which the lessee covenanted, in ease a well was not completed within one year from date of execution, to pay a fixed sum per annum for each additional year, and to pay a royalty of one-eighth of all the oil, is valid; part of the consideration being the exploitation of the mineral resources under the land.” See also Gross v. Menton, 158 Ark. 448.
The appellant has failed to comply with the terms of the lease. The lease contract provides that “if no well be commenced on said land on or before the first day of July, 1920, this lease shall terminate as to both parties.” This recital of the contract requires that a well be commenced on the land described therein, and not on some other land. The placing of a well on other land than that described, even though in the neighborhood or vicinity of the lands mentioned, is not a compliance with the provisions of the contract. Appellee Halton testified that the well was to be drilled on the lands described and not on some other land, and such are the plain terms of the lease. The words “on said land” could have no other interpretation.
Furthermore, the bringing of the suit by the appellee to declare a forfeiture of the lease does not entitle the appellant, under the facts of this 'record, to an extension of time for commencing drilling operations. While the appellee instituted this action against the appellant, he did not seek an injunction to restrain him from drilling operations on the land, and did not interpose any obstacle in appellant’s way other than the mere filing of the suit.
A court of chancery, upon a proper showing, might grant relief to a lessee where it would be unconscionable not to do so under particular circumstances. But the mere filing of a suit claiming that the contract had been forfeited is not sufficient. It is not shown that the appel lee, by asking for an injunction, or by threats or intimidation, attempted to prevent the appellant from performing his contract to drill. Appellant therefore is not in an attitude to claim that the filing of the suit interfered with his drilling operations, and that he is therefore entitled in equity to have the time for the performance of his contract extended. The appellant himself has asked for affirmative relief in the reformation of the lease contract. The lease, on its face, plainly says that appellant must pay $15 per acre rental, instead of fifteen cents per acre,.for the privilege of deferring the commencement of his well for twelve-month periods, and appellant concedes that he has not complied with the contract in this respect, and asks that the lease be reformed to show that it was the mutual intention of the parties that appellant should pay fifteen cents per acre instead of $15. If appellant intended to make this contention, he should have been more prompt in instituting his action to have the contract interpreted and reformed to conform with his notion of the proper construction to be given the contract. Appellant is not in an attitude to ask the interposition of a court of chancery to prevent the forfeiture of the lease.
The decree is therefore in all things correct, and it is affirmed. i! | | [
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Wood, J.
This is an action by the appellee against the appellant. The appellee alleged that, prior to December 20, 1920, Poinsett County was indebted to Hooten, or Hooten & Company, in the sum of $1,708; that J. C. Hooten, or Hooten & Company, assigned the account to the appellee, and that the appellee was the only person having the right to receive payment from the county; that the appellant, notwithstanding this fact, procured a warrant to be issued by the clerk of Poinsett County to him, which warrant he converted to his own use, and thereby damaged the appellee in the sum of $1,708, which the appellee had demanded and which the appellant had refused to pay, and for which amount appellee prayed judgment.
The appellant was duly served with summons, and, having failed to answer, judgment was rendered by default against him on September 6, 1923. The judgment, after reciting that the appellant had been duly summoned, called, and made default, continues as follows: “The court finds from the evidence that the defendant has been personally served with summons at the place and at and for the time in form and manner required by law; that in December, 1920, the defendant received and appropriated to his own use a county warrant of Poinsett County, which warrant was, at the time of such receipt and appropriation, the property of plaintiff ; that the same was issued in the amount and of the value of $1,708, and that defendant is indebted to plaintiff in said sum, together with interest thereon at six per cent. from January 1, 1921, amounting in the aggregate to $1,986.60. It is therefore by the court considered, ordered and adjudged that plaintiff Ed Landers have and recover of and from the defendant W. D. Shelton said sum of $1,986.60, together with all costs herein, for which execution may issue.” Prom the above judgment is this appeal.
The appellant contends, first, that the complaint fails to state a cause of action within the jurisdiction of the court. The complaint, though somewhat vague and indefinite, contains sufficient allegations to state a cause of action in favor of the appellee against the appellant for conversion. It alleges that the appellee was the owner of a warrant by assignment from Hooten, or Hooten & Company, which had been previously allowed by the county court, and that the appellant, “without any right or authority, procured the clerk of Poinsett County to issue and deliver the warrant to him, and that the appellant used and converted the same to his own use, to the damage of appellee in the sum of $1,708.” The appellant contends that appellee’s remedy, as the assignee of the claim of Hooten, or Hooten & Company, was to apply to the clerk of Poinsett County for the issuance of the warrant to him under the procedure set forth in §§ 1999 to 2002, inclusive, of Crawford & Moses ’ Digest. These sections provide for the issuance by the clerk of county warrants to those who have had claims allowed against the county upon their request and receipt for same. But the fact that the appellee, as the assignee of the claim against the county, might have had the right, under these provisions of the law, to have had the county clerk of Poinsett County issue the warrant to him direct by complying with the above sections, does not interfere with the appellee’s right to proceed against the appellant, if the appellant, without authority from the appellee, procured the clerk of Poinsett County to issue the warrant to him. If the appellant procured the clerk to issue the warrant to him when he was not entitled to the .same, then appellant was guilty of a wrong for which he was liable to the appellee, and such conduct on the part of the appellant, under the -circumstances, does not make the appellant any the less liable, even though the clerk of Poinsett County, in issuing the warrant to the appellant, may not have complied with the law. The clerk’s failure to do his duty, as stated by counsel for appellee, did not destroy appellee’s title to the warrant nor vest title to the same in appellant. The fact, if it be a fact, that the county clerk of Poinsett County negligently delivered the warrant to appellant, did not exonerate appellant, nor free him from liability in procuring the clerk to issue the warrant to him without authority. The complaint states -a -cause of action, and, if ¡appellant desired that it be made more definite and certain, he was served with process and had an opportunity to appear and move the court to that end. The allegation that “the defendant, without any right or authority, procured the clerk of Poinsett County to issue and deliver said warrant to him” was sufficient, in the absence of a motion to make more specific, to let in proof as to the method used by the appellant to procure the -clerk to issue the warrant to him. Likewise, the allegation that Hooten, or Hooten & Company, had assigned the claim and warrant to the appellee was -sufficient, in the absence -of motion to make more specific, to let in proof as to the manner of the transfer or assignment.
Section 6303 of Crawford & Moses’ Digest, providing that the sale of a judgment, or any part thereof, of any court of record must be by a written transfer, etc., we do not consider has any application to the allegations of the complaint. A claim against the county which has been allowed and a warrant issued thereon as evidence of such allowance is not within the purview of § 6303-, supra. Such a warrant is personal property like a note, check, draft, or other chose. A judgment by default admits to be true all material allegations properly set forth in the declaration, and is tantamount to ’ an admission that plaintiff is entitled to judgment as prayed by him. 15 R. C. L. 667, §§ 117, 118; Melton v. St. L. I. M. & S. Ry. Co., 99 Ark. 433.
2. The appellant next contends that a jury should have been called to assess the damages, and that, since this was not done, the judgment is void. We find it unnecessary to decide, and do not decide, this question for the reason that if it be conceded that it was the duty of the court to-call a jury to -assess the damages and that the court erred in not doing so, nevertheless, such error, under the recitals of the judgment could not have prejudiced the appellant. The judgment recites that “the court finds from the evidence that the defendant received and appropriated to his own use a county warrant, which warrant was, at the time of such receipt -and appropriation, the property of plaintiff; that the same was issued in the amount and of the value of $1,708,” etc. These recitals were sufficient to show that the findings and judgment of the court were predicated, not alone upon the pleadings in the cause, but upon the evidence. The recitals show that the merits of the cause were finally determined, and the judgment is therefore sufficient. Melton v. St. L. I. M. & S. Ry. Co. supra. See also Cook v. Hancock, 20 Texas 2, 33 C. J., p. 1194, §§ 125-128. The presumption from these recitals is that the judgment of the court was based on sufficient evidence to sustain the same. In the absence of a showing to the contrary, it will be presumed that the court had the warrant before it, and that such warrant was worth its face value. Moreover, the warrant itself was prima facie of the value stated on its face. See §§ 2028, 2029, C. & M. Digest; Goyne v. Ashley County, 31 Ark. 552; Union County v. Smith, 34 Ark. 684; Barton v. Swepson, 44 Ark. 437. See also Watkins v. Stough, 103 Ark. 468.
The recitals of the judgment shows that if a jury had been called, the only verdict it could have rendered under the evidence would have been to assess the damages at the amount set forth in the recitals of the court’s judgment.
The judgment is in all things correct, and it is affirmed. | [
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McCulloch, C. J.
This is an appeal from a decree of the chancery court sustaining a demurrer to appellant’s complaint against appellees and dismissing said complaint for want of equity. The facts stated in the complaint are, that appellant purchased an automobile from appellees, trading in an old car in part payment and making a small cash payment, and' agreed to pay the balance of the purchase price in installments, executing an installment note containing a reservation of title in the vendor; that appellant stored the car for safekeeping with, appellees, and, on demand, appellees refused to surrender the same; that appellant brought a replevin suit against appellees in the common pleas court of Mississippi County for recovery of possession of the automobile, and that, on the trial of the case, there was a judgment against appellant, from which an appeal was prosecuted to the circuit court, where the cause is now pending.
The complaint sets forth the substance of the pleadings in the replevin suit, and it appears that appellant, in his complaint in that suit, asserted that he was the owner of the automobile under the aforesaid contract of purchase, and that he had paid all of the installments of the purchase price which had fallen due, and that he had used the automobile in a proper and lawful manner. The answer of appellees in the replevin suit is set forth in substance, and shows that appellees denied that appellant had paid the installments as they fell due, and alleged that there were unpaid matured installments, and that appellant had otherwise failed to comply with his contract by abusing the car and failing to take proper care of it.
The contract of purchase between appellant and appellees was exhibited with the complaint, and it shows, in addition to the terms of the sale concerning the payment of the price', a stipulation that the automobile was not to be used for passenger service, and that appellant would take proper care of it.
It is alleged in the complaint that appellant is an ignorant colored man, and was not advised that the contract contained any stipulations other than the bare agreement to pay the installments and that the title should be reserved in appellees until all of the installments were paid, and he alleges that he was induced to sign the contract on the false representation that it contained only those stipulations. There is a further allegation, however, in the complaint that appellees are not claiming any rights under the stipulation with reference to the car not being used for passenger service. The prayer of the complaint is for a reformation of the contract so as to eliminate all features except the promise to pay the installments and the reservation of title.
It will be observed, from the narrative set forth in the complaint as to the issues involved in the replevin suit, that appellant claimed the right to immediate possession of the property, that he had properly used the car, and had paid the installments which had fallen due, and that these contentions were all disputed in allegations of the answer of appellees setting up their rights under the written contract.
We are of tlie opinion that the chancery court was correct in sustaining the demurrer, to this complaint. Conceding, without deciding, that it stated a cause of action for tlie reformation of the contract, it shows that appellant brought suit for the possession of the automobile in a court of competent jurisdiction, and that, with full knowledge of the contents of tlie contract and the assertion by appellees of their rights thereunder, he elected to proceed to trial upon the issues presented and to a final judgment of the court, and that he appealed to the circuit court, where the cause is now pending. Appellant took his chances in the assertion of his rights in the other litigation, and is bound by that judgment, his only remedy being the prosecution.of liis appeal to the circuit court in that case.
The decree is therefore affirmed. | [
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Hart, C. J.
Appellants, as taxpayers of Lonoke County, brought this suit in equity against E. M. High, as county judge of said county, and certain other persons as courthouse commissioners, to enjoin them from proceeding further in the erection of a courthouse and in the issuance of warrants for the payment thereof. The chancery court found the issues in favor of the defendants, and the case is here on appeal.
In Kirk v. High, 169 Ark. 152, 273 S. W. 389, 41 A. L. R. 782, it was held that a provision of Constitutional Amendment No. 11, that no county court or other county agent shall make any contract in excess of the revenue from all sources during the fiscal year in which the contract is made, does not forbid contracting for courthouses unless the total cost of construction can be paid out of the revenue of a single year, if payments can be so arranged that the total expenditure of the year shall not exceed its revenues. This holding was reaffirmed in the later cases of Ivy v. Edwards, 174 Ark. 1167, 298 S. W. 1006, and Lake v. Tatum, 175 Ark. 90, 1 S. W. (2d) 554.
It is conceded by counsel for the plaintiffs that all the issues raised by the complaint, except one, are settled against them by the decision in the cases just cited. We have examined the complaint, and find that all th<^ issues raised except one have been decided adversely to plaintiffs in these cases, and no useful purpose could be served by restating the issues and again giving our reasons for so holding.
The main reliance for reversal of the decree is that the court erred in not sustaining the following allegation of the complaint:
“Third. That the consideration provided for by the contract was fraudulently fixed at an exorbitant amount to include carrying charges or interest, because of the fact that the consideration is to be paid in warrants maturing in the future over a number of years, instead of in cash. That said contract calls for the payment of $199,500, but that the cost of said courthouse and jail, if paid for in cash, would not exceed the sum of $150,000.”
The answer of defendants denies that there was any fraud or collusion entered into between them and the contractor for the construction of the courthouse. They aver that they let the contract at public auction, pursuant to the provisions of the statute, to the lowest bidder, and that the Herman & McCain Construction Company was the lowest bidder of five contractors who submitted bids. The defendants let the contract for the construction of the courthouse to said construction company, and said construction company proceeded in good faith to comply with their contract for the erection of said courthouse-.
In Stone v. Mayo, 135 Ark. 130, 204 S. W. 752, it was held that, where a contract to build a county courthouse was let to the lowest bidder and there was no evidence of fraud or collusion between the contractor and the courthouse commissioners, there was a valid and binding-contract between the parties. In discussing the principles of law governing cases of this sort, the court said:
“That case controls this. Here was a straight contract for the construction of the courthouse for $91,-806.90. There was no evidence of any collusion among -the bidders to perpetrate a fraud on the court to have the contract let at a hig’her price because of the depreciated value of the county warrants, nor is there any testimony to warrant the conclusion that the county court entered into a collusion with the contractor to give him the contract at an increased price because the value of the county scrip was less than par. The fact that the bidders made inquiry and ascertained that the value of the county warrants was less than par and made their bid with such knowledge does not establish that there was a collusion between them to- stifle- the bidding- and to defraud the court by securing a contract at a higher price on account of the depreciated value of the county warrants. There is no -allegation that the county -court, or its commissioner, or the bidder, in securing the contract, were guilty of fraud.”
The principles of law announced in that case must govern the present one, there being no proof of fraud or collusion between the commissioners and the contractor. The decree was therefore correct, and will be affirmed. | [
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Smith, J.
This suit was brought in the chancery court for the Fort Smith District of Sebastian County by Georgia R. Williams, widow of Mathew A. Williams, to confirm her title to certain lots in the city of Fort Smith owned by her husband at the time of his death. The complaint alleges that Mrs. Williams has title to the lots under the will of her husband, and that in an ex parte proceeding had in 190iS it was decreed that Mrs. Williams took a present absolute estate under said will. The present suit is an adversary one, the heirs at law of the testator being made parties by the service of process. These heirs appeared and demurred to the amended complaint, and their demurrer was sustained, and, as Mrs. Williams stood upon the sufficiency of the complaint, it was dismissed as being without equity, and-she has appealed.
It appears from the allegations of the complaint that, in 1887, M. A. Williams, the then husband of the plaintiff, made a will. At the time of the execution of this will the testator and. his wife had no children, although they had been married to each other for a number of years. The testator died in 1908, and no children had been born to him and his wife at the time of his death, and no children have been born to his wife since his death, and she has not remarried.
The will reads as follows: “This is the last will and testament of me, Mathew A. Williams, made this the thirtieth day of December, A. D. 1887, in Logan County, Arkansas, as follows:
“I bequeath all my lands, tenements and hereditaments and all household furniture, ready money, securities for money, goods, chattels and all other parts of my real and personal estate and effects whatsoever, unto my wife, Georgiaann R. Williams, and the heirs of her body, to and for their absolute use and benefit, for her lifetime, subject only to the payment of my just debts, funeral and testamentary expenses and the charge of proving and recording this my last will, and I appoint my said wife executrix of this my last will, and hereby revoke all other wills.
“In witness whereof I hereunto set my hand and seal the day and year above mentioned.
“Signed, sealed, published and acknowledged by the said Mathew A. Williams as and for his last will and testament in the presence of us, who, in his presence and at his request, and in the presence of each other, have subscribed our names hereunto as witnesses thereof.
“M. A. Williams (Seal)
“ J. L. Moffett, W. L. Loving. ’’
On behalf of appellant, Mrs. Williams, it is insisted that the words, “heirs of her body,” appearing in the will, meant children, and should be so interpreted. To this proposition we readily assent. It is further insisted that, when so read, the wifi should be construed as giving to Mrs. Williams, and any children born to her begotten by the testator, or 'born to her by a subsequent marriage after the testator’s death, the fee title, for their joint use during their life, that is, that it was not a devise to the mother for her life, with the remainder over to the children, but was a devise to the mother and her children for their joint use during her life, and that, failing issue born to her, she took the fee title.
The will is a short one, and we have read it many times in an effort to ascertain the meaning of the testator, for we must ascertain his intention from the language which he has employed. As aiding the court in the discharge of this duty, many cases have been cited and discussed in the able and excellent briefs filed by respective counsel. We do not review these cases in this opinion, although they have been very carefully considered by us, as there are points of difference as well as of similarity between the instruments construed in all these cases.
Certain rules of construction, which have become rules of property, have been called to our attention, and these we have endeavored to follow.
In the case of Watson v. Wolf-Goldman Realty Co., 95 Ark. 18, certain rules of construction were announced which are applicable here. It was there said that, in this State, no distinction is made between the meaning of the words “bodily heirs” and “heirs of the body,” and that a conveyance to a grantee and his bodily heirs .creates a life estate in the grantee, with the remainder in fee simple in his children who survive him and the issue of such as died during his life per stirpes. Such is the purport of § 1499, C. & M. Digest. In this opinion it was further decided that the addition of such phrase as “and assigns forever” to the words “bodily heirs” does not add to or take from the estate granted and do not operate to enlarge the estate granted to a fee simple.
Here the devise is to “my wife, Georgiaann R. Williams, and the heirs of her body.” If this was all the will said, it is clear, under the case cited and. numerous other cases cited in the briefs, that the wife would have taken only an estate for life, with remainder over to the heirs of her body, or her children, but, as no children were born to her, this life estate would expire, failing children, upon her death, and the remainder would pass in fee simple absolute to the heirs at law of the testator.
The will, however, does not end with the words quoted, but these are followed by the words “to and for their absolute use and benefit for her lifetime.” Do these last words enlarge the estate devised to the wife to a fee simple, subject to be opened up to let in children born to her who would share this fee simple title with her?
The decision of this question is determinative of the testator’s intention, and we do not answer it with the assurance of inerrancy.
We have concluded that only an estate for life was granted to the wife, and even this estate was to be shared by her children during her lifetime, if any were born.
It is argued against this construction that it contravenes the presumption against intestacy, and results in holding that the testator had disposed of nothing more than an estate for the life of his wife. In answer to this contention it may be said (1), that, if there is a partial intestacy, that fact results from a failure of birth of children. There would have been no intestacy had .children been born, for they would have taken the fee after the expiration of the life estate of their mother, and this would have been true had a child or children been born to Mrs. Williams by a subsequent marriage, for the testator did not limit the bodily heirs of his wife to those by himself begotten. (2). It may be further said that, while there is a presumption against partial intestacy, this is a mere presumption, to be invoked only when necessary to interpret a will. There may be partial intestacy, notwithstanding there is a presumption to the contrary.
In Thompson on Wills, § 236, it is said: “In jurisdictions where the rule in Shelley’s Case has been abolished, a life estate may be created by a gift to one for life, with remainder to his heirs. And even in jurisdictions where this rule prevails, a devise to one for life, and, on his death, to the ‘heirs of his body by him begotten,’ passes a life estate only to the devisee. Unless modified by some other provision of the will, a life estate only will pass by such expressions as, ‘during his life’ or ‘for the full term of his natural life.’ Where the words used show an intention on the part of the testator to give nothing more than a life estate, such estate will be created, especially where the remainder is given to others. If so expressed, a devise may be for life, even though there is no disposition of the fee. In such case the fee becomes a part of the residuary estate, or passes as in case of intestacy. A life estate may be created bv a gift of the use, possession, or enjoyment of the real estate for life; also by a gift for life of tbe rents, profits, or income. But an unlimited gift of tbe proceeds of real estate has been held to vest in the beneficiary an absolute estate in the corpus.”
Here the devise is to the “absolute use and benefit” of the testator’s wife and the heirs of her body for her lifetime, and, whether there be partial intestacy or not, we have concluded that no greater estate was given the wife than one for her life, in any view of this case that may be taken.
As to the ex parte proceeding, but little was said in the briefs, and but little need be said by us. This was an ex parte proceeding, and did not bind the heirs of the testator who were not parties thereto.
Upon a consideration of the whole case we have concluded that the demurrer to the complaint was properly sustained, and that decree is affirmed. | [
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Humphreys, J.
This is a contest over the custody of Lee Donald Herbert, a child two years of age, between his father and mother on one side and his uncle and aunt on the other.
The child wias brought before Judge Keck, circuit judge of the Second Judicial District, on a writ of habeas corpus. After hearing the evidence, the judge awarded the custody of the child to its parents, and appellants contend for a reversal of the order, upon the authority of the case of Verser v. Ford, 37 Ark. 27. In that case it was said:
“As against strangers, the father, however poor and humble, if of good moral character and able to support the child in his own style of life, cannot be deprived of the privilege by any one whatever, however brilliant the advantage he may offer. It is not enough to consider the interest of the child alone, and, as between father and mother, or other near relations of the child, where . sympathies of the tenderest nature may be relied on, the father is generally to be preferred.”
The court however made an exception to this general rule in that case, because the infant was motherless and needed the care of the grandmother, in whose custody the father had placed it when the mother died. In the instant case the infant was not motherless.
The record reflects that H. E. Herbert and R. T. Herbert are brothers, and that, on account of the illness of Mary Herbert, the mother of the child, for about six months after its birth, the uncle and aunt offered and were allowed to take care of the infant. The father and mother had three other children to care for, and the necessity of the situation demanded that temporary disposition be made of the infant. The uncle and aunt offered to nurture and care for the child, and were permitted ■ to do so. They retained the custody of it for about two years, and during that period furnished food and raiment for it. The father and mother paid little or no attention to the child during that time. At the expiration of two years the father and mother requested the return of the child, which request was refused on account of the affection which the parents had permitted to grow up between the uncle and aunt and the child. Both families were fit persons to have the custody of the child, and were able to support and maintain it.
The instant case is not parallel to and ruled by the case of Verser v. Ford, supra. The child will receive the tender care of its own mother under the order of the court. Every attention which could be bestowed upon it by the aunt can be and will be bestowed upon it by its mother. Where not detrimental to the welfare of children, the law recognizes the preferential rights of parents to them over relatives and strangers. Paramount rights of parents will be respected, unless the special circumstances demand that such rights be ignored. In the instant case the child is yet a mere infant, not having arrived at the age of discretion enabling’ it to intelligently consider its future welfare. It is true that it had learned to call the uncle and aunt father and mother, but' its affection for them has not been allowed to root too deeply by lapse of time. The relationship has not been allowed .to exist for such a period of time that it can be reasonably said that a severance thereof would be detrimental to the child and a rank injustice to the uncle and aunt. It is better that the ties be severed now than to permit them to grow stronger and then attempt to sever them.
No error appearing, the judgment is affirmed. | [
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Humphreys, J.
Appellee brought suit for $721.69, in the circuit court of Dallas County, against H. E. Jones,' Cecil Futch. and appellants, upon a note which all of them executed to the Bank of Fordyce, and which appellee paid at maturity, alleging that he was surety for the other signers of the note.
H. E. Jones and Cecil Futch filed a separate answer, admitting that they owed the note, but claimed that they were entitled to a credit thereon for Í125.35 for repair work done by them on automobiles belonging to appellee.
Appellants filed a separate answer, admitting the execution of the note, and alleging that, instead'of appellee being surety for all the signers thereof, they, together with appellee, were sureties for H. E. .Jones and Cecil Futch. They further allege that, as co-sureties, each was liable for one-fifth of the amount paid to the bank by appellee, less the amount owed H. E. Jones and Cecil Futch for repairs on his. automobiles.
The cause was submitted to the court sitting as a jury, upon the pleadings and testimony adduced by the respective parties, which resulted in a judgment against H.-E. Jones and Cecil Futch for the full amount of the note, less $125.35 allowed Jones and .Futch as a set-off for repair work on appellee’s automobiles, and a joint and several judgment against the appellants for $577.24, being four-fifths of the amount paid by appellee to the bank in discharge of the note, from which judgment against them appellants have duly prosecuted an appeal to this court.
The facts are practically undisputed, and, in substance, are as follows:
On August 13, 1926, appellants and appellee became, sureties for H. E. Jones and Cecil Futch on a. note which they all executed to the Bank of Fordyce for $700, bearing interest at the rate of ten per cent, per annum from date until paid. After maturity of the note appellee paid the bank the face of the note and the unpaid interest, amounting to $713.77, and took an assignment of the note to himself. IT. E. Jones and Cecil Futch did repair work on automobiles belonging to ajipellee amounting to $125.35;
Appellants contend for a reversal of the judgment upon two grounds, the first being that the court should have deducted the claim of H. E. Jones and Cecil Futch for the amount paid by appellee in discharge of the note, and then have apportioned the remainder among the sureties; and the second being that the court should have entered a several judgment against each for one-fifth of the remainder instead of a joint and several judgment for the total amount of the remainder against them.
(1) . Appellants are in error in their first contention. Their co-surety paid $721.69 to the bank in discharge of their mutual obligation as sureties, and he was entitled by way of contribution to a judgment against each for one-fifth of the total amount he paid the bank. They had no interest whatever in the claim of H. E. Jones and Cecil Futch against appellee for repair work. This was a matter between appellee and H. E. Jones and Cecil Futch. H. E. Jones and Cecil Futch were entitled to offset their claim against appellee’s claim against them, but appellants, having no interest in the JonesFutch claim, could not use it as an offset against appellee’s claim against them. The court did not err in disallowing them a credit for the Jones-Futch account before ordering contribution on their part.
(2) The court did err, however, in rendering a joint and several judgment against appellants, co-sureties with appellee, for their contribution. He should have rendered a judgment against each for one-fifth of the amount as his contribution, it not appearing that any of them were insolvent. Appellee was. entitled to a judgment against each for the amount he had paid for him, but was not entitled to a judgment by way of contribution against them all for the amount he had paid for each.
On account of the error indicated the judgment is reversed, and judgment is ordered to be entered here against each appellant for one-fifth of $721.69, or $144.34, together with interest thereon from the date of the rendition of the' original judgment by the trial court. | [
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Mehaffy, J.
The plaintiff, appellee here, on June 15, 1926, filed suit in the Union Circuit Court against the defendant, J. E. Bailey, alleging that the defendant was indebted to him for services in the sum of $868, with interest from January 1,1924.
' Defendant filed answer, denying the material allegations of the complaint, and, some time thereafter, filed a demurrer to the complaint, alleging as grounds therefor: “The complaint fails to have attached thereto as an exhibit an itemized statement of the account sued upon, and fails to have a sufficient account sued upon incorporated in said complaint.”
The court overruled the demurrer, and defendant saved exceptions. After the overruling of the demurrer both parties announced ready for trial, a jury was impaneled, and, after hearing the evidence and the instructions of the court, returned a verdict for plaintiff in the sum of $500, and judgment was- entered for that amount.
Defendant filed motion for new trial, which was overruled, exceptions saved, and this appeal is prosecuted to reverse said judgment. . > :.
The appellant urges a reversal on three grounds. First, that the court erred in refusing to give defendant’s instruction No. 1, which instructed the jury to find for the defendant; second, because the court erred in giving the court’s instruction upoxi the question of quern-turn meruit; and third, because the court erred in overruling defendant’s demurrer to the complaint.
Appellant first insists that the court erred in refusing to give the peremptory instruction requested by him. Appellant does not mention this question in his motion for a new trial. He does, however, state in his motion for a new trial that the verdict is contrary to the evidence and contrary to both the law and the evidence. If the evidence was xiot sufficient to support the verdict, of course it would have been the duty of the court to direct a verdict for the defendant. But the proof is undisputed that plaintiff performed services for the defendant for which he had not been paid. The defendant himself testified that he did not have any agreement with Fenter at any time during 1923 to pay him $200 a moxxth; that what he owed Bailey and what the Bailey-Murray Oil Compaxxy owed him was paid jointly, $75 during the month of August. He said also that Fenter might have had a little more work to do if he ordered feedstuff, although that was not his business. And although the defendant testifies that Fenter never mentioned any balance that he was claiming, and never told him that he was going to charge him $225 a month, or $200 a month, and testified that nothing was said about $200 a month, axxd that Fenter told him that if he would see that he got his room rent and a little eating moxiey he would take care of his books, if witness could pay him a little bit, and witness testified that he told him he would do his best, but he did not know whether he could or not. Defendant also admitted writing a letter and testified that he gave Fenter authority to act for him in trying to save his property; that it would take very little of his time; and the plaintiff testified very positively about doing the work.
Whether Bailey owed Fenter anything at all, and, if he did, the amount of the indebtedness, were both questions of fact for the jury, and there was substantial evidence to support the verdict of the jury, and the verdict is conclusive on this court.
Counsel for appellant argue that, according to defendant’s statement, he had paid all that he owed plaintiff at the rate of $75 per month, and that, at the ■filing of the suit, he would not have owed him anything. However, he also testifies that he did some work, and it was a question for the jury to determine how much.
It is next insisted by appellant that, if Fenter is entitled to anything at all, he is entitled to recover what he sued for, and not entitled to recover on a quantum meruit basis. Appellant relies on the case of Bayou Meto Drainage Dist. v. Chapline, 143 Ark. 446, 220 S. W. 807, and quotes from that case as follows: “ Where there is no agreement as to a stipulated sum for the fee in the employment of an attorney, then the attorney can recover for services rendered upon quantum merwit.” In that ease it was contended on the part of the plaintiffs that there was an agreement for the customary fee. However, there was a controversy about what the contract was, just as there is in this case, and both parties introduced testimony for the purpose of showing the value of the services. There is in this case proof of employment to perform services, but no evidence to show an agreement as to the amount to be paid for the services. It is true that plaintiff alleged in his complaint that there was a contract for $200 a month, and it appears that, in the absence of defendant, the plaintiff, who kept the books, had charged the defendant with $200 a month. He did not; however, testify that the defendant agreed to pay this amount, but he did testify that defendant, in effect, said that he would make it all right. In other words, pay him what his services were worth. And again, although the plaintiff alleged a contract and the defendant denied it, evidence was admitted without objec tion tending to show the value of the services performed. The defendant himself introduced evidence tending to-show that there was very little work to he done; that it would take only a very short time each day to do all that plaintiff was required to do, and, of course, if he had been contending that there was a contract or relying on the fact that defendant’s suit was based on an express contract, testimony of the value of his services would have been inadmissible. That is, if he had a right to recover on an express contract fixing a definite amount, the contract would, of course, govern as to the amount of recovery, and testimony as to the actual value of the services would be inadmissible.
The court in discussing this question said:
“Under the issue joined the court did not err in refusing to admit testimony showing the value of appellants’ services. Without reference to the value of the services, they were either entitled, to five per cent, of the sale price of the land, or they were not entitled to anything. Where there is an express contract for services at a fixed compensation, there can be no recovery quantum meruit.” Christian & Taylor v. Fancher, 151 Ark. 102, 235 S. W. 397.
In the case of Bayou Meto Drainage Dist. v. Chapline, referred to by appellant, the court said:
“The appellants answered, denying all the material allegations of the complaint except the employment of the appellees by the appellants. They set out in their answer that appellants had refused to- pay the appellees because these fees were unreasonable and greatly in excess of the fee for. which the appellants contracted with the appellees. * * * Moreover, under the undisputed evidence in this case, the commissioners did not fix the fee of the appellees until after the services which they had been employed to render had all been performed. The compensation for their services was fixed by the board at the time they were discharged, not when they were employed. The preponderance of the evidence shows that the appellees were employed and that the compensation to be paid for their services was not stipulated in advance. The appellees are therefore entitled to recover upon quantum meruit.”
In the case last cited the defendants stated in their pleadings and in their evidence that there was an express contract fixing the amount. The appellees denied this. In the case at bar the plaintiff in his complaint stated that he was entitled to so much under the contract, but the evidence on the part of both the plaintiff and defendant was admitted without objection as to the character and amount of services performed. And the defendant in the instant case contends that the contract was for $75 a month. It is true that the plaintiff said that he was suing on a contract, but in the Bayou Meto Drainage District case tiie suit was on a contract, the defendants claiming that the amount was fixed, and the plaintiffs claiming that it was to.be the customary amount.
We think the court did not err in giving instruction No. 2, which authorized a recovery if the jury found for the plaintiff in whatever sum the evidence showed would be reasonable for the services performed, if they did not find that there was a contract fixing the amount.
It is next insisted that the court erred in overruling defendant’s demurrer. •. This contention is based on ^ 4200 of Crawford & Moses’ Digest. That section provides as follows:
“In suits upon accounts, the affidavit of the plaintiff, duly^ taken and certified according to law that such account is just and correct, shall be sufficient to establish the same, unless the defendant shall, under oath, deny the correctness of the account, either in whole or in part; in which case the plaintiff shall be held to prove such part of his account as is thus denied by other evidence.”
It will be observed that this section only provides that, when this section is complied with, this shall be sufficient to establish the same, etc., but it does not require the plaintiff to file the affidavit, and, if a complaint states a cause of action, the mere fact that the affidavit provided for in the section referred to is not filed would not justify the court in sustaining a demurrer to the complaint.
Section 1187 of Crawford & Moses’ Digest provides:
“The complaint must contain: (1) The .style of the court in which the action is brought. (2) The style of the action, consisting of the names of all the parties thereto, distinguishing them as plaintiffs and defendants, followed by the words, ‘complaint at law,’ if the proceedings are at law, and by the words ‘complaint in equity,’if the proceedings are equitable. (3) A state-, ment in ordinary and concise language, without repetition, of the facts constituting the plaintiff’s cause of action. (4) A demand of the relief to which the plaintiff considers himself entitled.”
A complaint for wort or labor or services that complies with § 1187, above quoted, states a cause of action.
Section 1189 provides that the defendant may demur to the complaint where it appears on its face:
“(1) That the court has no jurisdiction of the person of the defendant, or the subject of the action; or, (2) that the plaintiff has not legal capacity to sue'; or, (3) that there is another action pending between the same parties for the same cause; or, (4) that there is a defect of parties plaintiff or defendant; or, (5) that the complaint does not state facts sufficient to constitute a cause of action.”
The complaint in this case states facts sufficient to constitute a cause of action, and the court properly overruled the demurrer.
But where one accepts the. services of another the law implies a previous request and a subsequent promise. It was said by this court: “We are of the opinion that the court erred in its instructions to the jury. It is an elementary principle of the law of contracts that, where a party accepts the beneficial results of another’s services, the law implies a previous request and a sub sequent promise.” Nissen v. Flournoy, 160 Ark. 311, 254 S. W. 540.
The verdict of the jury is aot without substantial evidence to support it, and the case is therefore affirmed. | [
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Hart, J.
On the 2d day of August, 1924, appellants instituted an action in the chancery court against appel lees to enjoin them from attempting to collect a decree against them.
According to the allegations of the complaint, Road Improvement District No. 4 of Johnson County, Arkansas, was created by a special act of the Legislature at its special session in 1920. On the 23d day of February, 1920, the road commissioners named in the act entered into a contract with the Hight-Burkett Engineering Company as engineers for said district, and said engineers, after making a preliminary survey, duly filed their plans and specifications with the commissioners, as provided by the contract. The road district abandoned the improvement on account of the high cost of construction.
On the 9th day of June, 1923, Carl C. Burkett, who had succeeded to all the rights of the Hight-Burkett Engineering Company, brought suit against the road district for the sum of $7,825.77 for making a preliminary survey of the road to be improved.
By an act approved March 21, 1923, the act creating said improvement district was repealed. Special Acts of 1923, p. 1143.
Section 2 of the act provides that all claims against said district must be presented to the commissioners thereof, duly verified as required by law in actions of account, and, if not presented within six months from this date, they shall be forever barred.
Section 3 provides that, if the commissioners reject any claim presented to them, the holder thereof shall be barred unless he shall, within sixty days after notice of the rejection thereof, proceed to enforce the same by suit.
Burkett did not file his claim with the commissioners, but proceeded with his suit in the chancery court against them, and recovered judgment on the 8th day of December, 1923.
The commissioners appealed to the Supreme Court, and the decree of the chancery court was affirmed on April 14, 1924. Road Improvement District No. 4 v. Burhett, 163 Ark. 578.
The chancellor sustained a demurrer to the complaint of appellants, and, appellants refusing to plead further, their complaint was dismissed for want of equity.
The commissioners have duly prosecuted an appeal to this court.
It will ¡be seen that the repealing act referred to in our statement of facts requires all claims to be presented to the commissioners within six months from the date of the approval of the act, which was March 21, 1923, and that the claim in question was not presented to the commissioners. Statutes of this kind have been sustained as reasonable, and the word “claim” has been construed to embrace every species of legal demand. Western Randolph County Road Improvement District v. First National Rank, 159 Ark. 578. Therefore we think that there should be an actual presentation of the claim within the time prescribed, or something done by the claimant equivalent to it. The bringing of a suit on the claim against the commissioners is, under the circumstances of this case, equivalent to an actual presentation.
The suit by the engineers against the road improvement district to recover for preliminary expenses was brought before the repealing- act was passed. The commissioners refused to pay the claim, and the suit was prosecuted until a recovery was had in the chancery court in December, 1923. The commissioners continued to fight the claim, and appealed to the Supreme Court. The decree of the chancellor was affirmed in April, 1924.
Thus it will be seen that the road commissioners were informed of the nature of the demand of the engineers and that the latter were insisting upon its payment. They could not be more effectually advised of both these facts if the claim had been formally presented to them and payment demanded. Therefore there was, to all intents and purposes, a compliance with the statute.
We are of the opinion that the commencement of the suit by the engineers against the district within the statutory period and its continued prosecution operated as a presentment of the claim on which the suit was founded. This is in accord with our holding in the case of MclIroy v. Baird, 157 Ark. 288. In that case it was held that, where all the parties have treated a claim against a defunct road improvement district as if it had been rejected by the commissioners, it is too late, after judgment, to raise the question that it had not been passed on by the commissioners, and rejected by them.
Moreover, there is a presumption in favor of the validity of the decree in the chancery suit of the engineers against the road improvement district to recover their fee for making a preliminary survey, which must prevail in a collateral attack on the decree. When the suit was brought by the engineers against the district to recover their fee, it was the duty of the commissioners to interpose all defenses, both legal and equitable, which they might have to the suit, and this included the defense that the claim had not been filed with them within the time prescribed by statute. Livingston v. New England Mortgage Security Co., 77 Ark. 379, and Taylor v. King, 135 Ark. 43.
It follows that the decree will be affirmed. | [
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Smith, J.
Appellant was convicted on the testimony of Joe Logan on the charge of selling intoxicating liquors. Logan testified that he had been drinking-moonshine whiskey, when he ¡bought two bottles of vanilla extract from appellant, which he also drank, and that the extract made him drunk.
Appellant was the county agent for the Watkins Medical Company, and sold various preparations put up by that company. His stock of merchandise was transported over the county in a wagon, from which he made his sales.
A witness testified that he found a number of empty ■bottles of vanilla extract, having the label of the Watkins Medical Company on them, in the woods .about a quarter of a mile from appellant’s home, at a place where a number of young men were accustomed to assemble for the purpose of gambling. The admission of this testimony was objected to as incompetent, but we think it was competent to show that the extract was used as a beverage, and was drunk as such, it being also shown that appellant was the exclusive agent selling the Watkins preparations in that county.
Appellant requested an instruction numbered 1, which would have told the jury, in effect, that, if Logan represented-to appellant, at the time the extract was purchased, that he was buying it for his mother, who intended to use it in cooking, the defendant should be acquitted.
Appellant also asked, and the court refused to give, an instruction which would have told the jury to acquit the defendant unless the extract was sold for use as a beverage.
Both of these instructions were refused, and prop erly so.
Our present statute on the subject of the sale' of intoxicants was thoroughly considered and recently construed in the case of Leslie v. State, 155 Ark. 526, and it would serve no useful purpose to repeat here what was there said. See also Sanders v. State, 164 Ark. 491.
The witness Logan admitted that he told appellant he was buying the .extract to be used by his mother in cooking; -but, under the law as announced in the cases cited, this was immaterial, if the article sold could be and was used as an intoxicating beverage, although it was not manufactured' for. that purpose and was not sold -by appellant to be so used.
Appellant requested, but the court refused to give, an instruction numbered 3, reading as follows: “If an extract containing only the necessary quantity of alcohol to compound and preserve it for domestic use is sold, then such sale is not unlawful because some one of abnormal taste, depraved habits or perverted habits buys such extract for use as a beverage.”
This instruction, or one to the same effect, should have been given as requested by appellant. The instruc .t-ion is copied substantially from the language appearing in the opinion in the Leslie case, supra, and. by the lan- . guage there used we meant to say that it was not unlawful to sell a medicine which contained no more alcohol than was necessary to compound and preserve it, and that the lawful act of compounding medicine with no more alcohol than was necessary to compound and preserve it ■was not rendered unlawful because some pervert drank the medicine.
A chemist is permitted to use such quantity of alcohol as is reasonably necessary for this purpose, without violating the law; if he uses a larger quantity, he does so at his peril, and in violation of the law. It is therefore a question of fact in such cases whether a greater quantity of alcohol was used than was reasonably necessary for the lawful purpose of compounding and preserving.
Appellant testified that the extract which he sold the witness Logan contained 33 1/3 per cent, of alcohol, but that the company had later reduced the quantity of alcohol to 24 per cent., but the extracts had not proved satisfactory to his customers, who were almost exclusively housewives, since the reduction in the percentage of alcohol.
A druggist who had followed that business for fourteen years testified that it was customary and necessary in compounding extracts to use from 30 to 60 per cent, of alcohol.
The jury might therefore have found that the extract contained no more .alcohol than was reasonably necessary to compound and preserve it, .and may have believed that it was the whiskey which made Logan drunk, and yet have convicted appellant because the extract did contain alcohol and was drunk by the witness.
The court, in instructions given, told the jury that it was unlawful to sell a compound containing intoxicants which might be used for beverage purposes, whether the seller intended that they should be so used or not. This, generally speaking, is the law; but this statement of the law is subject to the exception in instruction numbered 3 requested by appellant. •
Extracts are commonly regarded as foods, rather than as drugs, but § 5 of the Pure Food and Drug Act, which became § 4822 G. & M. Digest, defines the term “drug” as “all medicines 'and preparations recognized in the United States Pharmacopoeia or National Formulary for internal or external use, * * *” and extract of vanilla or tincture of vanilla is found in the 8th revision of the United States Pharmacopoeia, page 488, and also appears in all the prior revisions of the Pharmacopoeia, and is also found in the National Formulary.
We conclude therefore that the same rule is applicable alike to extracts or tinctures as is applicable to other drugs, that is, so much alcohol, and no more, may be used as is reasonably necessary to compound and preserve, and, if this quantity, and no more, is used for that purpose, the law is not violated, although some pervert drinks it.
For the error indicated the judgment is reversed, and the cause is remanded for a new trial.
Humphreys, J., dissents. | [
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Smith, J.
In 1920 appellants, who are the children and heirs at law of W. L. Conrey, brought suit to partition certain lands- owned by- their father, a part of the lands being owned by him in severalty, and others as a tenant in common with T. J. Sharum. The complaint described the lands owned by their father in severalty, and alleged that each of the plaintiffs was the owner of an undivided third interest; and the complaint also described the lands owned by Sharum and their father as tenants in common. The first mentioned lands contained 120 acres, and the last mentioned contained 360 acres,, and all of it was in the same section.
There was an error in the description of this land, as it appeared in the complaint, and, as a result of this error, forty acres of the land owned by Sharum and the plaintiffs’ ancestor was omitted from the complaint. There was never any controversy about the respective interests of the parties or the description of the land which they owned.
Sharum filed no answer, but personally appeared in court, where he and other witnesses testified at the hearing then had, and the court found that the lands could not be partitioned in kind, so a sale was ordered, and a commissioner was appointed to make the sale. The decree ordering the sale correctly described the lands, but did not adjudge the respective interests of the parties. This decree was rendered May 31, 1921.
A sale was made by the commissioner on July 16, 1921, pursuant to the directions of the decree of sale, and at this sale the- land was first offered in forty-acre tracts, and Sharum was the highest bidder for each tract, his bids totaling* $2,250. After thus offering the land for sale, the commissioner offered all of it as a single tract, and Sharum was again the highest'bidder, his bid being $2,250.
The commissioner reported the sale to the court as having been made on a credit of three months, but he did not take the note of the purchaser as the decree directed. "When the commissioner presented the certificate of purchase to Sharum, he declined to execute a note, stating that he owned a. half interest in most of the land', and had paid the taxes on all of it, and that the title to a part of the land might not be good, but he did pay the commissioner $900 in cash.
The report of the commissioner came on for confirmation, and was approved by the court on the 3rd day of the April term, 1922. The commissioner was directed to execute a deed, and this he did, and the same was acknowledged in open coxirt.
It appears that the various orders of the court above referred to were either.never prepared by the attorneys for the clerk to enter or were not entered of record by the clerk if prepared, and thus the matter stood until the April, 1923, term of the court, when the executors of Sharum, who had died in the meantime, filed petitions for the entry, nunc pro tuno, of the court orders above referred to.
There appears to be little controversy about the facts stated above; but there is considerable conflict as to the value of the lands.
The heirs of Conrey, who were the plaintiffs in the original suit, filed .answers to the various petitions for mum pro tw%c "orders, and also filed exceptions to the confirmation of the commissioner’s report, and offered testimony tending to show that the lands had sold for a grossly inadequate price. This testimony related, however, to certain specific tracts of land, and not to the whole of it.
It is now insisted that the court did not acquire jurisdiction of the forty-acre tract omitted from the complaint, and that the sale to Sharum was void because he abandoned his purchase by failing to execute the note and by not offering to comply with his bid until the filing of the petitions for .the mmc pro turne orders.
The court made the nunc pro tunc orders as prayed, and this appeal is from that decree.
We think the court had jurisdiction to order the sale of the land omitted from the complaint. The court found that the parties appeared and testified in open court. The .appellants were the plaintiffs there. They prayed for the partition or sale of the lands. There was no dispute or uncertainty a/bout the description of the lands or the respective interests of the parties, and the decree of sale for partition correctly described the lands. Evidently the court treated the complaint as amended to conform to the admitted facts as shown by the testimony then heard.
The court found that the respective interests of the parties were adjudged as required by § 8100, C. & M. Digest, and that the report of the sale had been duly approved and confirmed, and that the commissioner had been directed to execute a deed, and that the deed had been approved, and it was ordered that decrees be entered mmc pro tunc showing these facts.
Pending the hearing of these petitions, the attorneys for the executor waived in open court any claim for the taxes paid by Sharum on the interest of his co-tenant, and the balance due on the purchase price was tendered into court, whereupon the court directed that the deed, which had been previously executed and approved but not delivered, should be then delivered, and this was done.
We find nothing in this proceeding which calls for the reversal of the decree of the court below. In making these mmc pro tucnc orders the court merely directed that a proper record be made of what had been previously adjudged. Sharum should, of course, have been required to execute the note as ordered by the original decree of sale; but there is nothing in the testimony to show that he abandoned his purchase. His payment of $900 to the commissioner refutes that contention. He should, of course, have allowed the court to adjudge what part of his bid should be finally paid after allowing him credit for the taxes; but these were questions which should have been raised when the report of the commissioner came on for confirmation. Evidently no credit for these tax payments was allowed Sharum when the report of sale was confirmed, but he waived this omission by agreeing in open court that no account should be taken of them. Upon payment of the balance due on Sharum’s bid, which was tendered and paid into court, he became entitled to the delivery of the deed which the court had previously approved.
Upon the question of inadequacy of price, it suffices to say that the testimony does not show such gross inadequacy of price as to raise a presumption of fraud or unfairness, even though this question had been raised when the report of sale came on for confirmation, as it should have been. Gleason v. Boone, 123 Ark. 523.
No error appears, so the decree directing the entry of nunc pro tunc orders is affirmed. | [
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McHaney, J.
On May 33, 1923, appellees sold to Clem A. Schaer lot one (3), block thirteen (13), Kimball’s South Park Addition to the city of Little Rock, for a consideration of $12,000, $5,500 of which was in cash and $6,500 evidenced by one note signed by said Schaer, having an accelerating clause" providing that the whole amount of the note might be declared due on failure to pay any installment of interest thereon. This note ivas secured b)r vendor’s lien in the deed executed and delivered to Scliaer. The cash payment añade by Schaer was obtained from the Union Trust Company by the execution of ten aiotes by said Schaer and his wife, Ethel F. Schaer, nine for the sum of $300 each, and one for the sum of $5,100, all being dated May 33, 1923, the first of said $100 notes becoming due December 3, 1923, and one $100 note due each six months thereafter, and the note for $5,300 becoming clu'e June 1, 1928, and all of said notes being secured by deed of trust on said property. These notes were identical in form, and all contained the following clause: “This is one of ten notes of even date aggregating $6,000, all equally secured and all of which shall become payable at election of holder upon default in payment of principal or interest of any of them.”
The deed of trust executed by Mr. and Airs. Schaer contained the following provisions :
“Said parties of the first part (Clem A. Schaer and Ethel F. Schaer) are justly indebted unto the said party of the third part (Union Trust Company) in the principal sum of $6,000, gold coin of the United States of America, being- for a loan thereof made by the said party of the third part to the said parties of the first part, and payable according- to the tenor and effect of the principal notes of Clem A. Schaer and Ethel-F. Schaer.” Also: “But, if default be made in the payment of said principal or interest notes, or any of them, or any renewals or extensions thereof, when the same may become due and payable, according- to the tenor and effect thereof, * * * the Avhole of said indebtedness herein secured shall, at the election of the party of the third part, or the legal holder or holders of the. indebtedness herein secured, become and be considered due and payable, as if due and payable according to the tenor thereof.”
The lien retained in the deed from appellant to Schaer Avas waived in the 'face of the instrument in favor of the notes and deed of trust to the Union Trust Company in the sum of $6,000. The $5,100 note heretofore described had interest coupons attached thereto maturing evury six months, and these coupons AA-ere signed only .by Clem A. Schaer. The notes due December 1, 192.2, and June 1, 1924, AVere duly paid. In October, 1924, Clem A. Schaer died. The note becoming due December 1, 1924, aagis not paid at. maturity, hut-on December 11, 1924, Airs. Schaer took up this note and all the remaining notes in the hands of the Union Trust. Company, and it made the folloAving- indorsement on each of said notes:
“For A-alue receiA-ed, Ave hereby sell and assign to Ethel F. Schaer, or order, all our interest in the Avithin bond and all our rights under the -mortgage securing the same, without recourse. Union Trust Company, agent, by E. J. Bodmian. ”
And on the same date the following' indorsement was made on the margin of the record of the deed of trust securing said notes:
“Note of $100 due December 1, 1923, and note of $100 due June 1, 1924, having- been paid, for value received the remaining notes, aggregating $5,800, together with the lien of this instrument and all rights hereunder, are hereby assigned to Ethel F. Schaer, without recourse. This 11th day of December, 1924. Union Trust Company, agent, by E. J. Bodman.”
Mrs. Schaer thereafter retained said notes until August 10, 1926, when she sold and assigned the same to appellants, J. C. Harding and L. J. Loeb, with similar indorsements on the notes and the margin of the record as had theretofore been made by the Union Trust Company. Interest on the note to appellees was paid by Clem A. Schaer in his lifetime, and, after his death, three installments of interest were paid, two ¡by Joe Schaer, trustee, for Mrs. Clem Schaer, and one by Mrs. Schaer on December 7, 1925, being the last interest payment made. The interest installments due in .1926 not having been paid, appellees exercised the option in their note, declared the whole amount due and payable, and on February 21,1927, brought, suit to foreclose their lien for the whole amount of the note and accrued interest, making Mrs. Schaer and her children and appellants, Harding and Loeb, defendants to this action, in which they prayed a • prior and paramount lien upon the property to the lien of Harding and Loeb, on the ground that the reacquisition of said notes by Mrs. Schaer from the Union Trust, Company constituted a payment thereof, so far as their second lien was concerned. Appellants, Harding and Loeb, filed an answer and cross-complaint, setting up the facts heretofore stated relative to their acquisition of said paper’; that they acquired same in good faith and due course, and that their lien was prior and paramount to the lien of appellees. Under the accelerating clause contained in said notes they had declared the whole amqunt thereof due and payable, on which they prayed judgment for a first lien on said property. The court sustained the contention of appellees, entered a decree giving* judgment to them for the full amount of their note and interest, and making same prior and paramount to the claim of appellants. It also gave judgment to the appellants for the amount of their notes, with interest, and decreed a foreclosure thereof subject to the lien of appellees. From this judgment against them Harding* and Loeb have appealed.
The facts are undisputed, and are substantially as heretofore stated: The question for our determination is, first, whether, on the reacquisition of ’ a negotiable instrument by one of the joint makers before maturity, he may, for a consideration, and before maturity, reissue it after it has become his property; and, second, whether, if such negotiable paper consists of a series of notes with an accelerating clause, providing that the holder may, at his election, declare , all subsequent notes due if default be made in the payment of one, and one of such notes is past due at the time of reacquisition, the assignee of such notes from the maker takes them subject to the right of the holder of the second lien to plead payment thereof and thereby make the second lien become the first lien.
Eelative to the first proposition, § 7885, C. &. M. Digest, subdivision 5, provides: “A' negotiable instrument is discharged when the principal debtor becomes the holder of the instrument at or after maturity in his own right.” There are four other subdivisions to this same section, hut subdivision 5 is the only one applicable to the facts in this case. Mrs. Schaer was a joint maker of these notes, and therefore a principal debtor, and when she became the holder of any one of the notes in controversy, at or after maturity, under this section such notes were discharged. It will he seen from the facts heretofore stated that, at the time she reacquired these notes, one of the $100 notes was past due. It will also he seen that three other of such $100 notes became due in her possession and before she reissued them. As to these notes there can be no question but what they are discharged. But, at the time she re-negotiated them, there were three of the $100 notes and one $5,100 note unmatured. The first subdivision of the section of the Digest to the effect that an instrument is discharged “by payment in due course by or on behalf of the principal debtor” does not apply because, as to these notes, it cannot be said that her act in having them assigned to her constituted payment, because it was not done in due course, for the reason that these notes were not yet due.
Section 7816, C. & M. Digest, being § 50 of the Negotiable Instrument Act, provides: “Whére an instrument iis negotiated back to a prior party, such party may, subject to the provisions of this act, reissue and further negotiate the same. But he is not entitled to enforce payment thereof against any intervening- party to whom he is personally liable.”
Construing this same section of the Negotiable Instrument Act, the Missouri Appellate Court, in the case of Arthur v. Rosier, 217 Mo. App. 382, 266 S. W. 737, a case exactly like this on the question now under' consideration, except that the husband reacquired and reissued the note before maturity, said:
“The maker of a promissory note, who is sui juris, may, for a consideration, before maturity, reissue it after it has become his property, but he cannot enforce payment against any intervening party to whom he was personally liable. Section 836 R. S. 1919; Sater v. Hunt, 66 Mo. App. 527; Curry v. Lofou, Mo. App. 163, 113 S. W. 246. In view of the law authorizing the maker to reissue a note that has become his property after its first issue, we hold that Morris occupied the position of an original payee. All parties dealing with this note knew that it was originally secured by a trust deed on the Siloam Springs property.”
The Supreme Court of Tennessee had the same question under consideration in the case of Horn v. Nicholas, 139 Tenn. 453, 201 S. W. 756, and, in construing this same section of the Negotiable Instruments Law, quoted the English rule stated by Lord Abinger, C. B., in Morley v. Culverwell, 7 M. & W. 174, 151 Eng. Reprint 727, as follows :
“A bill is not properly paid and satisfied according to its tenor unless it be paid when it is due; and consequently if it be satisfied before it is due, by an arrangement between the drawer and acceptor, that does not prevent the acceptor from negotiating it. ’ ’
Continuing, the court said:
“Mr. Daniel, in the last edition of his Negotiable Instruments (page 914), after quoting the language of the above decision, states that in the first edition he had stated the law tó be in accord with the New York or minority rule, but that ‘examination of the English authorities, and of the South Carolina case (White v. Williams, 8 S. C. 290, 28 Am. Rep. 294), has satisfied him of the error, and that the English view is correct.’
“This, we believe, is also the conception of bankers and men of commerce as to the rights of such parties; and it evidently was the one acted upon in the instant case. The doctrine admits of convenient results in practical operation, as the facts of this case manifest. The maker was permitted to keep alive the lien securing the note by being allowed to acquire for reissue; whereas, if the note were to be treated as paid, it would be necessary to create a new lien to secure a fresh note. The Negotiable Instruments Law, it appears, is framed .to accord with this view. ”
The court then refers to § 119 (5) of the Negotiable Instruments Law, which is § 7885, C. & M. Digest, heretofore referred to, to the effect that “a negotiable instrument is discharged when the principal debtor becomes the holder of the instrument at of after maturity, in his own right,” and said that this section indicates “that, by acquisition before maturity, a discharge, precluding re-negotiation, does not result.” The court then quotes § 50 of the Negotiable Instruments Law, § 7816,- 0., & M. Digest, heretofore quoted, and says: “The privilege of acquiring- in negotiation and of reissuing is thus broadly in favor of any prior partjn And by § 30 (7796, C. & M. Digest), an instrument is negotiated when it is transferred from one person to another in such manner as to constitute the transferee the holder thereof.”
. We therefore conclude on this point that a negotiable instrument may be reacquired by the maker or one of the joint makers before maturity, and reissued so as to carry the lien of deed of trust or mortgage with it.
On the second proposition it will be noticed that all the notes and the deed of trust had an laccelerating clause which provided in substance that, upon default in the payment of any note or the interest thereon, the whole amount then due and unpaid might, at the option of the holder, be declared due -and-payable. But for this provision in the notes, and/ or deed of trust, no person could have declared them due and payable upon default in the. payment of any one, not even the Union Trust Company. This was a privilege accorded the Union Trust Company, or the holder of the notes — any person to whom it might sell or assign them. It was a privilege accorded the holder of the notes by virtue of the contract between the makers and the Union Trust Company, personal to the holder. In other words, it was the privilege of a holder that he could exercise or not at his election, and he alone had the right to elect. It was not a privilege accorded the holder of the second lien, and there are no equities in the case that could extend the privilege to any one but the holder. The authorities cited by counsel for appellee on this question are correct propositions of law, but they' are not applicable to this case, as they refer to defenses on the notes themselves in an action by an assignee or subsequent holder against the maker.
These authorities apply as between Mrs. Schaer and Harding and Doeb, but it is a defense available only to the maker or person primarily liable. Certainly the appellees.in this case could not interpose a defense peculiarly applicable to Mrs. Schaer which she does not see proper to interpose or make for herself. We therefore conclude that the fact that one of these notes was past due when Mrs. Scliaer reacquired them, and that three others of them fell due in her hands, would not preclude her from re-negotiating the remainder of the notes to the appellants, which carried with them the lien of the deed of trust, and that it continued to be a first lien on‘the property.
The judgment of the chancery court is therefore reversed, and the cause is remanded with directions to enter a decree foreclosing the lien of appellants on the notes acquired by them before maturity, and declaring it a first lien on the property, and to decree a foreclosure on the note of appellee and declare it to be a second lien on the property. It is so ordered.
Mehaefy, J., disqualified and not participating. | [
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Mehaffy, J.
The appellants filed suit in the Second Division of the Union Chancery Court, on the 24th of December, 1925, against appellees, Harry Luster, Tom Nash and R. R. Bondurant, in the aggregate sum of $2,286, for labor and work which they had done and performed in the drilling of an oil well, located on the northeast quarter of the southeast quarter of the southwest quarter, section 1, township 16 south, range 16 west, Union County, Arkansas, and asking that a lien be declared upon the drilling rig, machinery and equipment, and the oil and gas produced from said well, to secure payment of said judgment; that the last of said labor was performed within the last ninety days prior to the filing of this suit; and gave the amount of each laborer’s claim.
A decree was rendered by default, and afterwards a motion to set aside was filed and granted, and the chancellor made a finding of facts, finding* the interest of each party, and, it appearing that other parties were necessary parties, the court ordered that they be served, which was done, and held that the plaintiffs were entitled to a lien on the leases, but that they were not entitled to a lien against the drilling* rig and not entitled to a personal judgment against the defendants, Nash, King and Bundurant.
H. R. F. Goode filed an intervention, claiming that he held ia mortgage on the drilling rig, and the court found that said mortgage was prior and paramount to all of the contracts between the parties -to the suit, and granted H. R. F. Goode’s intervention, -holding that plaintiffs had no lien against the drilling* rig.
The only question, in the case is whether the liens for labor are superior and paramount to the lien of the mortgage.
Act number 513 of .the Acts of the General Assembly of 1923 was construed by this court in the ease of Pilcher v. Parker, 173 Ark. 837, 293 S. W. 738. Section one of the act provides:
“Any person or persons working in or about the drilling or operation of any oil or gas well, or any well being drilled for oil or gas, in this State, shall have a lien on the output and production of such oil or gas well for the amount due for such work, and, in addition thereto, his lien shall attach to all machinery, tools, equipment and implements used in such drilling or operation of such oil or gas wells, including all leases to oil or gas rights on the land and upon which such drilling or operations shall be performed. Such lien shall be superior or paramount to any and all other liens or claims of any kind whatsoever, and no contract, sale, transfer or other disposition of said property shall operate to defeat said lien, and said lien shall be enforced in the same manner now provided by law for the enforcement of laborers’ liens. ”
Section two provides.: “This lien shall not be construed to be a lien upon the re'al estate of the employer or lessee, but shall be a lien upon the personal property used and connected with said drilling and operations and the output or production of said oil or gas lease on said land.”
In construing this act, this - court, among other things, said:'
“Our construction of the.act is that it gives a lien to laborers working in or about drilling operations of any oil or gas well on all machinery, tools, equipment, and implements used in such drilling operations, irrespective .of who may own the machinery. The fact that one man’s property may be taken to pay the debt of another does not render the act unconstitutional. In the instant case, according to the undisputed testimony, appellant placed his property in the possession of the lessee, knowing the purpose for which it was to be used by him, and knowing that the statute quoted above gives a lien to laborers for services performed by them in and about the drilling, operations, and he -therefore Voluntarily subjects his property to such liens as are given by the statute. He could have protected himself against the statutory-lien in favor of laborers by requiring hjs lessee to give him a bond to pay the laborers’ claims and to return it to 'him free from such incumbrances. A statute similar to act 513 was upheld as constitutional by the Supreme Court of California in the cases of Church v. Garrison, 75 Cal. 199, 16 P. 885, and Lambert v. Davis, 116 Cal. 292, 48 P. 123. Section 1 of the California statute provides that ‘ every person performing work or labor of any kind in, with, about, or upon any threshing machines, the engine, horse-power, wagons, or appurtenances thereof, while engaged in threshing,’ shall have a lien upon same to the extent of the value of his services.”
This court further quoted from the California court the following: “That the actual ownership of the property was an immaterial circumstance — the obvious theory, and, as we deem it, the correct one, being that the one lawfully holding from the.actual owner the possession and the right to operate the machine is to be deemed, for the purposes of the statute, the owner of the property. ’ ’
In the case decided April 25, 1927, construing this act, it will be observed that we said of the owner: “He could have protected himself against the statutory lien in favor of laborers by requiring his lessee to give bim a bond to pay the laborers’ claims and to return it to him free from such incumbrances.”
Our statute with reference to mortgage of personal property provides: “In the absence of stipulations to the contrary, the mortgagee of personal property shall have the legal title thereto and the right to possession.” Section 7393, Crawford & Moses’ Digest.
He would then, of course, stand in the same attitude as the owner of the property, because he is the legal owner and entitled to the possession of said property, and. as we said in the former case, could protect himself against the statutory lien in favor of laborers either by taking possession of the property, as he had authority to do under the law, or requiring the mortgagor to give him a bond to pay the laborers.
One taking a mortgage on a drilling outfit is bound to know the kind of use to which, such property shall be put, and when he takes his mortgage he knows that laborers will probably be employed, who, under the statute above quoted, will have a lien superior to the lien of his mortgage. He should therefore take such steps as might be necessary to protect himself against liens of laborers.
We have already held the statute valid, and held that the laborer was entitled to his lien even against the owner of the property, and this case is controlled by the ease of Pilcher v. Parker, supra.
The case is therefore reversed, and remanded with directions to enter a decree for a lien against the property in favor of the laborers. | [
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McCulloch, C. J.
The petitioner, William L. Smith, has brought here on certiorari the record of proceedings before the Pulaski Chancery Court involving his right to be discharged from the United States Veterans’ Hospital No. 78, located near the city of Little Rock.
The petitioner applied to the chancery court for a writ of habeas corpus directed to the superintendent of the hospital, directing the latter to produce petitioner before the court and show cause why he should not be discharged. In the petition for habeas corpus it was alleged that petitioner was “imprisoned and illegally restrained of his liberty by the medical officers of U. S. Veterans’ Bureau Hospital No. 78, located in Pulaski County, Arkansas, by reason of, so he is informed and verily believes, the impression and belief of said medical officers that he is insane and a dangerous person to be at large.” The petition reads further as follows:
“Your petitioner further states that he is not so imprisoned and restrained by reason of the judgment or order of any court whatsoever, and that the only pretext for his said imprisonment and restraint is the erroneous belief of said officials that said imprisonment and restraint is beneficial to petitioner’s health; the only offer for petitioner’s release was conditioned upon his attorney signing the paper hereto attached as ‘Exhibit A’ which is made a part hereof, and whereas, on the contrary, petitioner states that said imprisonment and restraint and close confinement is damaging* to his peace of mind and to his physical health, that no good and sufficient reason therefor now exists.”
The prayer of the petition was that petitioner be “discharged from said unlawful imprisonment and restraint.”
After service of the writ, the superintendent of the hospital appeared and filed a response to the petition, il which he stated, in substance, that petitioner was a patient in said hospital, and was being detained therein in accordance with the rules and regulations governing the institution; that respondent admitted that he had no legal right to detain petitioner, but that the latter was a dangerously insane man, and should not be turned loose upon the community by being* discharged from the hospital without being taken charge of by some one capable of taking care of him. A paragraph in the answer reads as follows: “It'is not the disposition or intention of the hospital authorities to detain any persons in said institution where there is some one who will take the responsibility of patient to be discharged, and further respondent states that if said William L. Smith were permitted to be discharged and run at large he would be a menace to the public.” The response makes reference to exhibits showing the personal and military history of petitioner, which exhibits are made part of the response, and those exhibits show that petitioner was brought to the hospital for treatment, and, according to his personal history and physical examination, he is a paranoiac with homicidal tendencies; that he killed two of his comrades while in the army, and was acquitted on the ground of insanity, and that, immediately before his being placed in the hospital, he fired a gun at a man on the street for the reason that, as he said, the latter ‘ ‘ spit at him., ’ ’
Petitioner demurred to the response, and, upon the demurrer being overruled, petitioner stood upon the demurrer and suffered his petition to be dismissed, and, as before stated, has brought the record here for review on certiorari.
Petitioner was entitled to have his mental condition inquired into for the purpose of determining whether or not he was entitled to be discharged from the hospital, but Ms attorney was content with standing upon the demurrer to the response, which set forth all the facts and circumstances under which petitioner is being detained in the hospital. The demurrer conceded those facts to be true, and we must treat the case here as if the chancellor had found, upon proper evidence, the state of facts set forth in the response. According to those facts, the petitioner is insane, and is a dangerous paranoiac, on account of having homicidal tendencies, which have been demonstrated by overt acts in the commission of homicides and by another recent homicidal attempt. Under those circumstances, the petitioner is not entitled to an absolute discharge from the custody of the hospital authorities. According to the allegations of the response, which 'must be taken as true, the hospital authorities rightfully received petitioner into their custody, and the court should not require them to turn him loose and permit him to go at large, if he is afflicted in the manner and to the extent set forth in the response. In this respect the hospital authorities are in the same attitude and are charged with the same duties as any other person having rightful custody of an insane person. The duty is not to abandon an insane person until he can be taken into custody by such person or institution as is charged by law with the duty to care for the insane. The statutes of this State provide that, when a person is insane so as to endanger his own person or the person or property of others, “it shall be the duty of his guardian, or other person under whose care he may be, and who is bound to provide for his support, to confine him in some suitable place until the next term of the probate court for his county, which shall make such order for the restraint, support and safekeeping of such person as the circumstances of the case shall require.” Crawford & Moses’ Digest, § 5854. Adequate provision is made by law for the custody and care of insane persons, and, of course, these statutes have full application to an insane person in the United States Veterans’ Hospital, but, until some steps are taken for the legal care and custody of such, insane person, the court will not require the absolute discharge of the patient from custody. The facts of the case, as detailed in the response of the superintendent of the hospital, do not show that petitioner is entitled to an absolute discharge, and the chancery court was correct in refusing to grant relief.
Affirmed.
Hart, J., dissents. | [
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Humphreys, J.
This case was affirmed (Purvis v. Elder, 175 Ark. 780, 1 S. W. (2d.) 36), whereupon appellee moved for judgment on the supersedeas bond, which was granted. In keeping with the order, the clerk of this court entered a judgment for $2,592, using as his guide the amount shown by the receiver’s report in the record. The judgment rendered in the trial court was not for a specific sum. Our attention has been called to the fact that the judgment was not for a specific amount but for a portion of the assets in the hands of the receiver, and that the receiver’s report appearing in the record was not his final report but, on the contrary, was his first report, which did not show all legal disbursements. In view of this fact it was error to enter a judgment here for a specific sum on the supersedeas bond, but tbe same should have fixed the liability on the bond, and the ease should have been remanded with direction that the amount thereof be ascertained by the trial court ■after allowing* the receiver such amounts as have been paid out >by him on order o'f the trial court. | [
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Hart, J.,
(after stating the facts). A specific legacy or devise is a gift by will of a specific article or part of the testator’s estate, which is identified and distinguished from all other parts of the -same kind, and which may be satisfied only by the delivery of the particular thing. 28 R. C. L., pp. 289 and 291; Kenaday v. Sinnott, 179 U. S. 606; case note to 11 L. R. A. ( N. S.) p. 55; and case note to 10 Ann. Cas. p. 490. Tested by the definition just stated, the legacy to Joe Mullin was a specific legacy, and the various devises in the will were specific devises.
This brings us to a consideration of which is entitled to preference over the other, if any, in the payment of the debts of the decedent. Prof. Pomeroy says that whenever it becomes necessary to resort to th© class composed of the specific legacies and devises, all the legacies and devises in that class will abate pro rata. That specific legacies and devises stand upon the same footing, are subject to the same liability, are abated together under the same circumstances, and contribute ratably for the payment of debts and charges. Pomeroy’s Eq. Jur., 3d. ed., vol. 3, § 1137.
In the case of Brant v. Brant, 40 Mo. 266, the testator, by his will, directed his executors to pay off and discharge all of his debts out of his estate as soon as it could conveniently be done after his decease. He then bequeathed and devised his estate by specific leg-aeies and devises to his wife and his children in nearly equal parts. Plis executors paid off the debts from the rents of the real estate. Upon a bill to marshal assets, the court held that, as the testator had designated no specific fund from which the debts .were to be paid, it was his intention that the devisees and legatees should contribute ratably to the abatement of the incumbrance, and that the whole burden of the debts could not be thrown upon the personal estate. The court recognized that, if a man dies intestate, owing debts, payment will be made in the regular order pointed out by the statute, commencing with the personal property.
On the other hand, the court said that if he devises and bequeaths his whole property specifically, both real and personal, it is an indication that the objects or recipients of his bounty shall have the estate in the proportions designated in the will. There, as here, the testator had made specific gifts of personal property and specific devises of real property, and there were debts probated against the estate which could not be paid without using either the specific legacies or specific devises for such purpose. In such case, if the law should step in and make a distinction where the testator had made none, and where he had specifically designated each particular species of personal property and parcel of land, which should go to the various persons named in his will, the rule would make a very different will for the. testator from that prepared by himself.
In this case, as in that, the testator commenced his will with a general direction to the executors to pay his debts as soon as it could conveniently be done after his death. His whole estate was disposed of by specific devises and bequests, and, as no specific fund was designated and set apart for the payment of the debts, the natural presumption is that he intended that the devisees and legatees should contribute ratably to their abatement.
In the case before us the testator made his will one day and died the next day. It may be presumed that he knew about how much money he had in bank and the approximate value of his other personal property. It will also be presumed that he knew approximately, at least, the amount of debts which he owed. So in this case, if he had intended for his personal property to be applied first to the payment of' his debts, he had just as well not have made a specific legacy to Joe Mullin of the money he had in bank, for he knew that his other personal property was not sufficient for the payment of his debts. Therefore the rule is reasonable and just that specific devises of land and specific bequests of personalty must abate ratably in case of a deficiency of assets for the payment of the debts of the testator, because both land and personal property, under our statute, may be liable for such debts; and it was equally the intention of the testator that the legatee should have the money in bank and the devisees the particular tract of land left to each of them. Armstrong’s Appeal, 63 Penn. 312; and O’Day v. O’Day, 193 Mo. 62, 91 S. W. 921, 4 L. R. A. (N. S.) 922.
We concur with, the reasoning of those opinions that the just manner of construing the will is to give it such an application that the plans of the testator in the distribution of his estate shall be fairly carried out and no disappointment shall happen to those who appear to have been equally the objects of his bounty Of course this rule applies to specific devises and specific legacies, and not to the residuary clause of a will. Therefore we hold that, in marshaling assets for the payment of the debts of the testator, specific legacies of personal property abate proportionately with specific devises of land.
Another matter must be considered in the premises. The record shows that the testator had a wife living at the time of his death. It is true that he had a divorce suit pending against her, but it had not been disposed of. His widow made demand of the executors for a settlement of her dower.- This court has held that a widow is entitled to dower in kind out of the dioses in action of her deceased husband. Sharp v. Himes, 129 Ark. 327.
Hence the widow was entitled to dower in the specific legacy of Joe Mullin.. There being no children, she was entitled to one-half of this amount. -Crawford & Moses’ Digest, § 3536. The result of our views is that the circuit court erred in rendering judgment against the executors for the whole amount of the legacy of Joe Mullin, and for that error the judgment will be reversed, and the cause remanded with directions to allow one-half of the amount of this legacy as -dower to the widow, and to abate the balance proportionately with the specific devises of land in the payment of the -debts probated against the estate of the decedent and the costs of administration,' and for further proceedings according to law and not inconsistent with this opinion. | [
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Smith, J.
Appellee brought suit against the administratrix of the estate of Jay Fulbright, deceased, upon a demand for alleged unpaid salary amounting to $10,000, and offered testimony tending to show that the demand was just, and that he was entitled to receive the amount sued for.
Testimony was offered by the defendant administratrix to the effect that nothing was due appellee, and that the demand upon which he sued had been compromised and settled. Had the verdict been for the defendant we would be required to hold that the testimony was ample to sustain the finding.
After the jury had had the case under consideration for some time, a report was made to the court that the jury was unable to agree. The court required the jury to further consider the case, and a verdict was finally returned for the plaintiff for the sum of $5,000, one-half the amount sued for, thus indicating that a compromise verdict had been reached, as the verdict should consistently have been for $10,000 or for nothing.
'Both parties filed motions for a new trial, and both motions were overruled. Appellee filed a supplementary motion praying the court to render judgment for $10,000 notwithstanding the verdict, and that motion was sustained, and judgment was rendered for that .amount, and this appeal has been duly prosecuted from that judgment.
We do not review the testimony, for, as has been said, it was sharply conflicting, and is legally sufficient to support la verdict for $10,000 in favor of the plaintiff or one in favor of the defendant. There appears to be no assignment of error requiring discussion except the action of the court in rendering judgment for $10,000 notwithstanding the jury had returned a verdict in favor of the plaintiff for only $5,000.
The case of Jackson v. Carter, 169 Ark. 1154, 278 S. W. 32, was a suit' upon three notes which had been executed in payment of the purchase price of ¡an automobile. The defendant denied liability upon the notes on the ground that the automobile had been stolen, and there was a verdict and judgment in his favor. Upon the appeal to this court it was held that the defendant had failed to prove that the automobile had been stolen, and that the proof was insufficient to show that the consideration for the notes had failed. It was therefore held that, as the undisputed testimony showed that plaintiff was entitled to a judgment for the amount of the notes, judgment should be rendered here for the plaintiff, notwithstanding a verdict had been returned in favor of the defendant, and this was'done. It was there said, however: .
“But § 6271 of Crawford & Moses’ Digest provides: ‘When a trial by a jury has been had, judgment must be entered by the clerk in conformity with the verdict, unless it is special, or the court orders the case to be reserved for future argument or consideration.’ And § 6273 provides: ‘Where, upon the statements in the pleadings, one party is entitled by law to judgment in his favor, judgment shall be so entered by the court, though • a verdict has been found against such party. ’ The facts of this record do not bring the case within either of the above sections of our statute. The verdict was not special, the case was not reserved by the court for future judgment or consideration, . and there was no statement in the pleadings to justify the court in- entering a judgment in favor of the appellant. Therefore the appellant was not entitled to a judgment non obstante veredicto. ‘The motion in arrest of judgment in civil causes is unknown to our system of practice, and, where it does obtain, can be maintained only for a defect upon the face of the record, of which the evidence constitutes no part’ (Citing cases).”
It is apparent that neither section of the statute quoted in the case cited above is applicable to the facts in this ease. Here the answer denied any liability, and the testimony on behalf of the defendant would have sustained that finding. The plaintiff was therefore not entitled to a judgment under the pleadings nor under the undisputed proof. Ryan v. Fielder, 99 Ark. 374, 138 S. W. 973; Collier v. Newport Water Co., 100 Ark. 47, 139 S. W. 635, Ann. Cas. 1913D, 45; Sharff Distilling Co. v. Dennis, 113 Ark. 221, 168 S. W. 141; Coleman v. Utley, 153 Ark. 233, 240 S. W. 10; Trippe v. Duval, 33 Ark. 811.
We have held that where a jury found, under conflicting testimony, that a plaintiff was entitled to recover damages, and the undisputed testimony showed the damages were substantial, the judgment for nominal damages only was an error, to correct which this court would reverse the judgment. This is true, however, because a judgment for nominal damages is, in effect, a refusal to assess damages. Krummen Motor Bus & Taxi Co. v. Mechamics’ Lumber Co., 175 Ark. 750, 300 S. W. 389; Martin v. Kraemer, 172 Ark. 397, 288 S. W. 903; Dunbar v. Cowger, 68 Ark. 444, 59 S. W. 951; Carroll v. Texarkana Gas Co., 102 Ark. 137, 143 S. W. 586; Bothe v. Morris, 103 Ark. 370, 146 S. W. 1184.
Here the verdict and judgment was not for a nominal sum, but was- for a very substantial amount, to-wit, the sum of $5,000. There was therefore no refusal to render judgment for more than a nominal amount.
It is true that the verdict is not consistent, but this is not ground for us to reverse the judgment, as it is supported by very substantial and sufficient testimony.
A very similar question was presented in the case of Washa v. Harris, 167 Ark. 186, 266 S. W. 944, and it was there said:
‘ ‘ It must be conceded that the verdict does not appear to be consistent with either theory of the case, but we cannot say that it is unsupported by the testimony. The testimony in Harris’ behalf would have supported a verdict for the entire amount in controversy, except the price of the pulley, which was only $42.50, which would, of- course, have included the $3,000 paid in cash, yet the verdict of the jury included only so much of the $3,000 as was necessary to extinguish the note and the price of the pulley, ¡and we will not therefore disturb the verdict, because the jury’s finding on the facts against appellant sustains the verdict, and would support a larger recovery against him than the mere extinguishment of the note.”
The trial court might have granted the motion of either party for a new trial, ¡and should have done so if convinced that the verdict was contrary to the preponderance of the evidence. Twist v. Mullinix, 126 Ark. 427, 190 S. W. 851. But the jury having returned a verdict for a substantial amount, and the plaintiff not being entitled, under the pleadings or the undisputed pr'oof, to recover a larger amount, the court was without authority to render judgment for a larger sum than that fixed by the verdict.
The trial court should properly have granted the appellee’s motion for a new trial if convinced that the verdict was contrary to the preponderance of the evidence, or have overruled both motions for a new trial if not so convinced. But the action of the court does very clearly indicate a finding on the part of the trial court that the verdict for $5,000 was not contrary to the preponderance of the evidence, because the court has actually increased the recovery. There can therefore be no error in affirming* the judgment for $5,000, if appellee elects to have that done. But, unless this election is made, the judgment must be reversed, ¡and it will be so ordered unless appellee shall, within fifteen days, remit $5,000 of the judgment, thus leaving the verdict of the jury undisturbed. | [
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Hart, J.
Wilson Yother was convicted before a jury for murder in the second degree, and his punishment fixed at seven years in the State Penitentiary. .The case is here on appeal.
The first assignment of error is that the court erred in permitting Beatrice Evans to testify in the case.
Wilson Yother was charged with having killed Joe Holmes by cutting him with -a knife, one night in May, 1924. The case was tried on the 23rd of October, 1924. Beatrice Evans was ten years old at the time of the trial, and had testified before the grand jury, which returned the indictment, and was examined before the circuit .judge on the application of the defendant for bail. Objection was made to her testifying as a witness, and we copy from her examination on this point the following:
“Q. How old are you, Beatrice? A. Ten. Q. Ten years old? A. Yes sir. Q. Were you a witness before the judge here one time about this matter? A. Yes sir. Q. You know what it is to swear — to hold up your hand and say you will swear the truth? A. Yes sir. Q. You know what will happen to you if you don’t? A. Yes sir.”
She then testified that both of her parents were dead, and that she had lived with Joe Holmes and his wife for four months before Joe Holmes was killed. We again quote from her testimony the following:
“By Court: Q. Beatrice, tell me — you were sworn here, were you? A. Sir? Q. Were you sworn here with the other witnesses? Did you hold up your hand and say that you would tell the truth, the whole truth, and nothing but the truth? A. Yes sir. Q. Well, now, suppose you tell a falsehood after you have taken that oath, what will happen to you? A. Put me in the reform school. Q. Put you in the reform school? A. Yes sir. Anything else that would happen to you that you know of? A. No sir. Q. What becomes of people that swear falsely? A. Put them in the penitentiary. Q. Do you know what becomes of them when they die? A. No sir. Q. You don’t know that? A. No sir.”
At the conclusion of her examination, the court permitted her to testify, over the objections of the defendant. She testified that she was present when the killing occurred, and was examined and cross-examined at great length. She stated in detail the circumstances attending the killing, and did so in a connected and intelligent manner. Being under fourteen years of age, the question of her competency as a witness was left to the legal discretion of the trial judge, and, in the absence of a clear abuse, the judicial discretion is not reviewable upon appeal. Crosby v. State, 93 Ark. 156.
According to the rule laid down in that case, an infant under fourteen years of age must not only have intelligence enough to understand what he is testifying about, but he must also have a due sense of the sanctity of an oath. In that case we held that the infant was not competent as a witness, because the examination was not sufficiently comprehensive. The boy stated that it was wrong not to tell the truth, but that he did not know what would be done to him if he did not tell the truth. He was not asked, and did not state, anything from which it could be inferred that he comprehended the danger of swearing falsely or appreciated the sanctity of an oath.
In the case before us the facts are essentially different. The examination of the witness was much more comprehensive. She first 'stated that she knew what would happen to her if she did not swear the truth. On further examination she stated that, if she did not tell the truth, she would be put in the reform school, and that people generally who swore falsely were put in the penitentiary. She did say that she did not know what became of such people when they died. But this is far from showing that she did not appreciate the sanctity of an oath. Her whole examination, taken together, shows that she knew that she would he punished. It was fairly inferable that she fully comprehended the sanctity and obligations of an oath. Therefore there was no abuse of discretion in the circuit court allowing her to testify as a witness in the case.
It is insisted that the court erred in giving instruction No. 4, which reads as follows:
‘ ‘ The court tells you to weigh the testimony of the witness that appeared to be a child of tender years, and you take the tender years and childish nature into consideration, together with the environment about the child and the probability or the improbability of its testimony having been influenced by any other person, and give to that testimony just such weight as you think it is entitled to have. Test it by the same rules that you do the testimony t>f other witnesses.”
It is true that the last sentence tells the jury to test the evidence given by the infant by the same rules as that of other witnesses; but, when the instruction is read as a whole, it left it to the jury to take into consideration the tender age, experience and environment of the child. Therefore the instruction was not inherently wrong, and no reversible error was committed in giving it.
No other assignments of error are relied upon for a reversal of the judgment, and it follows that the judgment will be affirmed. | [
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McHaney, J.
This is a suit to enforce a material-man’s "lien on a ten-acre oil and gas lease in Union County, near Norphlet, commonly referred to as the Edwards farm, in the sum of $1,346.20, which lease was owned by G. G. Baggett. It appears that Gano, Honan and Baggett owned an oil and gas lease on a town lot in Norphlet, Arkansas, referred to as the townsite lease, and that Baggett operated this lease for' himself, Gano and Honan, and had authority from them to order materials for repairs and equipment from appellee, to. be charged to Gano and Honan, with whom they had a line of credit. Baggett had no credit or account with appellee. Between November 14,1924, and February 21,1925, he ordered material and supplies from appellee in the above sum of money, which were charged to Gano and Honan, which were not used upon the townsite lease of Gano, Honan and Baggett, hut were used in and upon the Edwards farm lease owned by Baggett himself, without any authority from Gano and Honan. After discovering that material and supplies in the above' sum had been delivered to the Edwards farm lease, without authority from Gano and Honan, appellee restated its account with Gano and Honan, and charged Baggett with said amount, and, upon his failure to pay therefor, filed a lien upon the Edwards farm lease, and, in apt time, brought suit to foreclose same. On March 6, 1925, Baggett sold and assigned the lease in controversy to appellant, S. H. Riggs, for a consideration of $10,000 in cash, warranting the title against liens and incumbrances. On May 13, 1925, Riggs sold and assigned the lease in controversy to his co-appellees, E. R. Owen and Mrs. Irma G. Day, for a consideration of $2,500 in cash and short term notes, and an oil payment of $5,000, payable out of 7/32 of the first production, in which he warranted the title and covenanted against liens and incumbrances. This last assignment was not filed for record until February 9, 3926. Suit was brought against Baggett and C. G. Graham, on the theory that Baggett and Graham were partners, for a personal judgment against them, and against Riggs, Owen and Day as purchasers of said lease after the accrual of said lien. No service was ever had on Graham. On a trial of the case the court decreed personal judgment against Baggett in the above sum, and fixed a lien in favor of appellee on said lease, and ordered it sold in satisfaction thereof if not paid within ten days. The decree also gave personal judgment in favor of Owen and Day against Biggs in the «ame sum for breach of his covenant of warranty, and also in favor of Biggs against Baggett for breach of his covenant of warranty. Owen, Day and Biggs have appealed from the decree fixing a lien against the property and ordering foreclosure, and Biggs has appealed from the decree awarding judgment against him in favor of Owen and Day.
Appellants first insist, for a reversal of the case, that there is no evidence sufficient to establish a contract, either express or implied, between appellee and Baggett, or Baggett and Graham, relating to the furnishing of any material by appellee for the lease in controversy, and that, since a contract, express or implied, is the very foundation of the right to a lien, under the statute, appellee must fail. We cannot agree with counsel in this contention, as we think the evidence amply sufficient to show an implied contract between Baggett and the appellee. His letter of May 19 is a recognition of the indebtedness and a promise to pay. The undisputed evidence shows that Baggett, the owner of the Edwards lease, ordered these materials himself from appellee, although charged to G-ano and Honan, and that they were used upon his property. Under such circumstances the law will imply a promise to pay for them, which makes a contract between him and the appellee. The case of Crown Central Petroleum Co. v. Frick-Reid Supply Company, 173 Ark. 983, 293 S. W. 1012, is authority for this holding. We do not review the evidence on this point, but have read same carefully and hold that it is amply sufficient to establish a ease of an implied contract between Biaggett and appellee for the purchase and sale of the material sold and delivered to his lease.
It is next contended, that, if it be held that there was a contract, express or implied, then appellee is a subcontractor for Grano and Honan, to whom the material was sold and charged, and who, it is insisted, furnished the material as principal contractors with Baggett, and that hence they are necessary parties to this action. We do not agree with this contention, for the reason that we have already stated that there was an implied contract between appellee and Baggett for the purchase and sale of these materials, and, since they were furnished and went into his property, there was an implied contract on his part to pay for them, and an express promise on his part in his letter of May 19 to pay therefor. Under this state of facts appellee is a materialman, and made a sale of the materials directly to the owner., entering into a property in which Glano and Honan had no interest, and they are not therefore proper or necessary parties to this action.
It is next insisted that no notice of the intention to file the claim of lien was given or served on the property owner, as required by the statute as a prerequisite to the filing of the lien. Appellee, being an original contractor with the owner, is not required, under the statute, to give the ten days’ notice. Appellee is not a subcontractor, but an original contractor for the material furnished. Where material or labor is furnished under a contract with the owner, the necessity for the notice is dispensed with. It was not necessary therefore to notify Baggett, as he was the owner at the time the material was bought. It was unnecessary to notify Biggs, Owen and Day, because they were purchasers subsequent to the accrual of the lien, and within the ninety days given to appellee within which to file Ms lien. They were properly made parties to the action, and cannot complain of the failure to give them the ten days’ notice. Eddy v. Loyd, 90 Ark. 340, 119 S. W. 264.
It is next insisted that the proof is not sufficient to show that the items of materials which form the basis of this action were in fact actually placed on, or used in or upon, or became a part of, tbe property 'against which the lien was established. Not only did Baggett acknowledge this indebtedness, the correctness of the account. for materials furnished, and promise to pay therefor, which is testified to by Mr. Harter, witness for appellee, and as shown in Baggett’s letter .written subsequent to the separation of the account, but it is shown in the testimony of Honan, who testified to the effect that he took the entire account of appellee against Gano and Honan, went upon the respective leases, and checked the materials, item by item, and stated that the items included in the suit to establish this lien went upon Baggett’s lease. This evidence was not disputed by appellants, and this was sufficient to establish the fact that the materials furnished were used upon the leasehold in question.
It is finally insisted that-appellants are innocent purchasers, without any notice of appellee’s claim of lien, or that it had furnished anything for the lease, or that Baggett, or Baggett and Graham, or any one else, owed appellee for anything that went on the lease. This position cannot be sustained, as there can be no innocent purchasers of property as against mechanics’ liens which are asserted within the time and in the manner provided by law. They must take notice of the statute giving liens to material furnishers and laborers and allowing ninety days in which to perfect their liens after the material and labor have been furnished, and that an otherwise good record title may be incumbered thereby within such time.
In the recent case of Bell v. Koontz, 172 Ark. 870, 290 S. W. 597, this court passed upon the same point adversely to appellants’ contention, and, in the course of its opinion, said: “They bought subject to Bell’s lien for material, because the statute required them to take notice of the existence thereof during the ninety-day period given him after furnishing the last item to file his lien or to bring suit to enforce it.” Citing § 6911, C. & M. Digest; Eddy v. Loyd, 90 Ark. 340, 119 S. W. 264.
We adhere to the above holding, and announce again that purchasers of property must take notice of the statute giving materialmen and laborers ninety days after the materials are furnished and the labor done in which to file a lien, and that, during such time, there can he no innocent purchasers of the property. Statements of the owner or his agent that there are no claims for liens cannot bind the lien claimant from whom no inquiry was made, and who made no misrepresentations regarding the matter.
We find no reversible error, arid the decree is accordingly affirmed. | [
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Kirby, J.,
(after stating the facts). It is earnestly insisted that the evidence is not legally sufficient to support the verdict, land that the court erred in refusing to give appellant’® requested instruction No. 1 for a directed verdict.
There is very little conflict in the testimony. It is ■undisputed that it was not necessary to remove the top from the air mixer in order to start the engine, but that it was not unusual — -was in fact customary — to do so, the engine 'being started more readily when it was done. The appellee was an experienced workman, and understood the operation of such engines, and undertook to start this one in this customary way. He said it could be done more easily 'by removal of the top 'from the air mixer. It is not complained that the appellant was negligent in not warning him of the danger incident to the service performed, but only that it failed in its duty to exercise ordinary care to furnish safe machinery and instrumentalities for the performance of his work. He could have easily picked up and replaced the top of the air mixer without bringing his face over the mixer or near enough thereto to have 'been injured by an explosion from a backfire of the engine coming out of the mixer, and none could have escaped that way had the top not been removed for starting the engine, as he also knew. There was no emergency requiring him suddenly to select the method for doing the work, or excusing him from attempting the least safe way. He was working under his own. initiative or direction in starting the engine, working according to his preference at the time, and, being familiar with this method of doing the work, and necessarily knowing and appreciating the danger incident thereto in attempting it, he must be held to have assumed the risk. St. L. I. M. & S. By. Go. v. Wiseman, 119 Ark. 477, 177 S. W. 1139; Henry Wrape Go. v. Huddleston, 66 Ark. 239, 50 S. W. 452. He carelessly and unthoughtedly brought his face over the air mixer in reaching- for the top to replace it, and without any necessity for doing so, and, although he stated he had not known of any explosion from a back-fire coming through the open air mixer after the engine was started, he knew that the top was put on such mixer to prevent the explosions from backfire coming out that way, and also that the top was off, necessarily exposing him to any danger that might result therefrom.
There does not appear to be any reasonable excuse for the careless manner of bringing his face near to and over the open mixer in attempting to replace the top thereon, and in so doing he was guilty of negligence contributing to his own injury also, and but for which the injury would not have occurred.
The court erred in not directing a verdict for the appellant, and the judgment is reversed and the cause dismissed. | [
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Hart, C. J.,
(after stating the facts). The sole reliance of the plaintiff for a reversal of the judgment is that the court erred in allowing the defendant to introduce evidence to show that the salesman of the plaintiff represented, at the time the contract was executed, that the reading material would “tie-in” with the cuts. No such provision was inserted in the contract. On the contrary, in plain terms the contract recites that it is the sale of “seventy-eight Who’s Who advertising engravings with ads and lobby cards, bulletin, and copy of monthly letter. ’ ’ The contract provides that all promises and agreements are 'Stated therein, and that verbal agreements with salesmen are not authorized.
We are of the opinion that the court erred in allowing the testimony of the cashier of the bank to be introduced before the jury. His testimony to the effect that the salesman told him that the advertising material would “tie-in” with the cuts was plainly contradictory of the terms of the written contract. This court has uniformly enforced the general rule that a written contract cannot be contradicted or varied by evidence of an oral agreement between the parties before or at the time of the execution of .such contract. Federal Lumber Co. v. Harris, 152 Ark. 448, 238 S.. W. 611; Delaney v. Jackson, 95 Ark. 135, 128 S. W. 859; and Pictorial Review Co. v. Rosen, 171 Ark. 719, 285 S. W. 385.
In the last case cited the court upheld a ruling of the trial court to the effect that parol evidence would be admitted to show that a traveling salesman had induced a customer to sign a printed form of contract in blank because he was in a hurry to catch a train, and promised to fill in the terms of the contract in accordance with the terms of their agreement. The purchaser had confidence in him, and relied upon his representation. The salesman filled out a contract different from the one the purchaser made, and, as soon as the purchaser found it out, he countermanded the order and notified the company not to ship the goods. The court held that the evidence of the purchaser was not a contradiction of the writing, but showed what was the real agreement between the parties.
No such condition exists in the case at bar. The evidence for the bank, which was admitted over the objections of tbe plaintiff, was to the effect that the salesman of the plaintiff had represented that the advertising material bought would “tie-in” with the cuts. As we have already seen, this was contradictory of the terms of the written contract which was signed by the parties after being written. Therefore tbe court erred in admitting it over the objections of the plaintiff, and for that error the judgment must be reversed.
Inasmuch as the case seems to have been fully developed, no'useful purpose could be served by remanding it for a new trial. The undisputed evidence shows that the sum of $130 is due the plaintiff by the defendant on the contract, and that the whole of this amount is due. This amount should bear interest under the contract as follows: $52 from February 1, 1927, and $78 from August 1, 1927. It is ordered that judgment be entered here in favor of the plaintiff against the defendant for said sum. | [
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Smith, J.
The hill of exceptions in this case, consisting of only two pages, contains a synopsis of the testimony, which the trial judge has certified as containing all the testimony at the trial. The certificate to the hill of exceptions contains no reference to the instructions given at the trial, and only one of them 'appears in the bill of exceptions.
The suit was brought by A. J. Brasher against C., B. Cotton and J. R. Jeffers on a promissory note for $'226, executed by them to 'Brasher’s order, and dated September 11, 1919. Cotton died after the institution of the suit, and the cause was revived in the name of his administratrix. The answer filed admitted the execution of the note sued on, but alleged that it had been paid by virtue of an agreement that the note should be credited on another note dated May 11, 1920, for the sum of $2,653.90 executed by Brasher to Cotton’s order. At the trial from which this appeal comes a son of Cotton testified to this agreement, but Brasher denied having made it.
It was shown by the testimony that Brasher was adjudged a bankrupt,' and received his discharge as such, and he admitted that he did not list the note here sued on among his assets. He explained this by stating that before the institution of the bankruptcy proceedings, he had delivered the note sued on to the Farmers’ Bank of Dardanelle, where it was held by the bank as collateral security for a loan which the bank had made to him and his brother, and that this loan was evidenced by their joint note to the bank. The amount of this loan does not appear from the testimony .in the bill of exceptions. Brasher further testified that, after he had been discharged in bankruptcy, he redeemed the note from the bank by paying the note for which the note in suit had been put up as collateral.
The only instruction set out in the bill of exceptions reads as follows:
“If the jury find that A. J. Brasher, in good faith, turned over said note sued on herein as collateral security to the Farmers’ Bank of Dardanelle, prior to his filing of his petition in bankruptcy, or before he was adjudged a bankrupt in the Federal court, and that, after his discharge in bankruptcy, he redeemed this note from said bank by "paying off his and his brother’s note to said bank, for which it was placed as collateral, and there was no fraud connected with said transaction, he was the rightful party to sue on said note, provided the jury finds said note had not been paid by set-off as contended by the defendant, Cotton. ’ ’
The bill of exceptions recites that the instruction set out was given among other instructions, but it does not appear what these other instructions were, and it must therefore be conclusively presumed that the jury was correctly instructed as to what would be good faith in failing to list the note by the bankrupt as a part of his assets.
It is the law that the trustee of a bankrupt takes all the interest that the bankrupt has in all commercial paper. Section 766, Brandenberg on Bankruptcy. But it is also the law that the trustee is not required to take into custody property so incumbered as to be valueless, and, if he declines for this reason in good faith to do so, the equity of the bankrupt in the incumbered property remains in him. It was so decided by this court under the bankruptcy act of 1867 in the case of Brookfield v. Stephens, 40 Ark. 36.
In § 760, Brandenberg on Bankruptcy, it is said:
“Neither a receiver nor trustee is bound to accept property of an onerous or unprofitable character, or to assume an obligation of the bankrupt, unless for the benefit of the creditors. Accordingly, the trustee may refuse to take possession of mortgaged property, or property held in trust, and it is his duty to do so if its value, over and above the incumbrance, is not sufficient to justify an attempt to administer it. Where property is mortgaged beyond its value, and the trustee elects not to take the same, it may be surrendered to the mortgagee without prejudice to the right of the trustee to contest the Validity of the mortgage. ’ ’
So here we must presume, in view of the record before us, that the jury found that the failure of the trustee to take possession of the note sued on was an act of bad faith in fraud of the bankrupt’s creditors, and the judgment must be affirmed, and it is so ordered. | [
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Holt, J.
This cause originated in the justice of the peace court for Bowie township, Desha county, Arkansas, June 2, 1941. In this suit J. H. Millerick sought to recover benefits alleged to be due under the sickness provisions of an insurance policy carried by him with appellee, Benefit Association of Railway Employees: Appellee defended on the ground that the policy had lapsed for failure to pay premiums. July 14, 1941, Mr. Millerick died and October 21,1941, the action was appealed to the circuit court by appellee and revived in the name of appellant. On this latter date the cause was heard before the circuit court, sitting as a jury, and the issues determined in favor of appellee, Benefit Association. This appeal followed.
The record discloses that on June 3, 1933, J. H. Millerick, the deceased, obtained from appellee a policy of insurance, and delivered to it a pay roll deduction order, directing his employer, The Missouri Pacific Railroad Companjq to deduct from his salary each month $3.60, the amount of the premium due upon said insurance policy. The policy provides in part that “The Association hereby insures J. H. Millerick ... by occupation locomotive engineer, from 12 o’clock noon of the above date . . . until 12 o’clock noon ... on the same date of the month following and for such terms of one calendar month each thereafter as the monthly premium of $3.60 paid by the insured will continue this policy in force.”
The deduction order was deposited with the railroad company in St. Louis, Missouri, and deductions were begun as of June 19, 1933, and continued by the railroad company and remitted to the insurance company, appellee, each month up to and including March, 1939. At this time Mr. Millerick changed his place of work. We quote from his testimony: “Q. Did you change? A. Yes, I changed place- of work. Q. Did you have a new timekeeper on that other division? A. I don’t know. I don’t think so, think same timekeeper in St. Louis.” The railroad company made no deduction from Mr. Millerick’s pay roll for April, 1939, or for any month subsequent thereto, and appellee insurance company received no premium from anyone after March, 1939. During the time from and including April, 1939, through January, 1941, Mr. Millerick was earning and receiving an average of $312 per month from the railroad company.
Appellee, having received no premium payments upon the policy in question after March, 1939, wrote a letter to Mr. Millerick in part as follows: “September 1, 1939. File — 63608 old — J. W. Millerick. Dear Brother: For some time past, no deduction has been reported fr.om your earnings by the railroad company by whom you are employed, covering the monthly premiums on your health and accident policy, and it has now lapsed. This may be due to your being transferred or temporarily laid off. A lapsed policy is of no value to anyone and we could not give you claim service if you were disabled. . . . The association issues policies covering all classes of railroad occupations, which give full coverage at unusually low rates. You cannot afford to work on a railroad without B.A.R.E. health and accident coverage. If you have been laid off, -\ve will gladly reinstate you if a remittance of one month’s premium is sent into the home office. If you have been transferred, please let us know immediately your present occupation and where employed, and we will place you on our billings and automatically reinstate your policy as soon as deductions are made. May we hear from you in the enclosed self-addressed envelope which does not need a stamp? Fraternally yours, F. B. Aliara, Vice-President.”
Mr. Millerick admitted having received this letter either in the fall of 1939 or in the fall of 1940. We quote from his testimony on this point: “Q. Didn’t the company .as of the date of September 1, 1939, write you?' A. Don’t think the date is right, it was long in the fall before I got back that I got this letter. I couldn’t tell you the date, I left the letter on the engine. . . . Q. Either in the fall of ’39 or the fall of ’40 you got a letter? You did receive a letter from the company at some date, either in the fall of ’39 or ’40 to the effect that your premium had not been paid for some time prior thereto, is that correct? A. Yes.”
Mr. Millerick also admitted that he did nothing after the receipt of this letter to pay the premium due or anything in an effort to reinstate his policy.
In February, 1941, Mr. Millerick became disabled' within the terms of the policy and subsequently made demand for indemnity and was informed by appellee that his policy had lapsed.
For reversal appellant earnestly argues here (quoting from her brief) “That the policy never lapsed as from March, 1939, to January, 1941. Mr. Millerick earned from the M. O. P. Ry. Co. from March, 1939, to January, 3941, $7,176.75, the smallest amount of his monthly earnings was $223.17 and the largest $533.66,. an average of $312 each month from March, 1939, to January, 1941. That the appellee could have collected the monthly premiums on the deduction order it held if proper demand had been made on the railroad company for them in that the deduction order nor the policy was ever canceled; that the letter did not constitute notice sufficient to lapse the policy because the appellee negligently and carelessly failed and refused to make proper demand for the insurance premiums.” To support her contention, appellant relies on the case of Pacific Mutual Life Ins. Co. v. Harris, 187 Ark. 772, 63 S. W. 2d 219.
We think, however, that the Harris case does not control here and is clearly distinguished from the instant case on the facts. The Harris case seems to have been predicated on the failure of the insurance company to notify, or make demand, for the payment of the premium in question. In the instant case, however, the appellee insurance company, after waiting from April until September, 1939, and having’ received no premiums, proceeded by letter to notify Mr. Millerick of that fact, in addition informed him that his policy had lapsed and offered to reinstate his policy if he would remit one month’s premium. There was no requirement for a physical examination. In addition to this notice by appellee to Mr. Millerick that premiums were not being received, that his policy had lapsed and demand for premium payments, Mr. Millerick had the additional information that his premiums were not being paid from the fact that the monthly premium payments of $3.60 were not being deducted from his pay check on or after April, 3939, since he was drawing all the money due him. Cer tainly, therefore, he must have known that the railroad company was not paying his monthly.premiums when all his wages were being paid to him.
After appellee, insurance company, had given the insured, Millerick, direct notice that his policy had lapsed for failure to pay premiums, no further duty rested upon appellee to make demand upon the railroad company or anyone else for the payment of the premiums in question. It was within the power of Mr. Millerick to lapse the policy in question if he so desired and this, we think, Mr. Millerick did in the instant case.
The principles announced in the following cases, we think,. apply here:
In Pacific Mutual Life Ins. Co. v. Walker, 67 Ark. 147, 53 S. W. 675, this court held (quoting headnote No. 3 from the Southwestern Reporter): “Where an insured gives an order to a railroad company to pay part of his future wages to an insurance company in payment of an installment of premium on an accident policy, which order the insurance company accepts, and the railroad company retains funds in its hands belonging to the insured to pay said premiums, and the insurance company does not collect it, and does not return the order, or make any effort to notify the insured that it is unpaid, the insured, on suffering loss, is entitled to recovery, though said premium is not paid. ’ ’
We think the effect of this holding is to relieve the insurance company of all liability upon the giving of notice and demand to the insured, as was done in the instant case.
In Benefit Association of Railway Employees v. Hamcock, 248 Ky. 315, 58 S. W. 2d 578, it is said: “It devolves upon the insurer to present the order for the payment as the installments fall due and in case of the nonpayment to notify the insured of their nonpayment as a prerequisite of its right to insist on a forfeiture thereof.”
And in Stewart v. Continental Casualty Co., 229 Ky. 634, 17 S. W. 2d 745, 67 A. L. R. 175, this language is used: “ But the insured, in a case like this, when he has provided for the payment when due, and the premium made is in the possession of the defendant or under its control, payment will be deemed to have been made, until the insured is notified by the defendant to the contrary. ’ ’
On the whole case, finding no error, the judgment is affirmed. | [
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Smith, J.
Appellees are the owners of real estate situated in Sewer Improvement District No. 93 of the city of Little Rock, and they brought this suit for the benefit of themselves and of all other property owners of the district against A. W. Sloss, to require Sloss to discontinué a connection made with the sewers of the improvement district.
Sloss owned a tract of land which he divided into streets and lots, and which he called the Highland Park Addition. This addition was adjacent to but outside of the boundaries of the improvement district. Sloss put in, at' liis own expense, the necessary pipes to afford his addition sewerage facilities, and, after doing so, he made a contract with the commissioners of the improvement district whereby the pipes of his addition might be connected with those -of the improvement district, and for this connection he agreed to pay, and later paid, the sum of $100 in cash. Sloss was at the time one of the commissioners of the improvement district, but allowed the other commissioners to fix thé charge to be made, and did not participate as a commissioner in the determination of that question.
The connection with the sewers of the improvement district was made in August, 1925, and on April 2, 1926-, appellees brought this suit to compel a disconnection and to recover the sum of $5000 as compensation for the use of the sewer of the improvement district. The ¡complaint alleged that ¡Sloss had conspired with 'his associate commissioners to obtain sewer connections for his addition at a grossly inadequate price, and that the contract for this connection was void. The complaint alleged that the property owners had called upon the commissioners of the improvement district to institute this suit, but they had declined and failed to do so.
A demurrer was filed by Sloss, and, after it was overruled, an answer was filed, in both of which pleadings the right of the property owners to sue was challenged, and the answer denied all the material allegations of the complaint.
Certain persons who had bought lots from Sloss in the Highland Park Addition intervened, and alleged that the complaining property owners and the improvement district were’estopped from prosecuting the ¡suit, because, with full knowledge of the connection, they had permitted interveners to buy lots in the Highland Park Addition on the assumption that sewerage facilities had been provided for their property, and it was alleged that the suit of the plaintiffs was also barred by laches in failing to promptly institute suit.
On October 18, 1926, the plaintiffs filed an amendment to their complaint, in which they alleged that final settlement had not been made by the commissioners of the improvement district for the construction of the sewer, and that the district was still in charge of the commissioners, but it was also alleged that, if the city had taken over and was in charge of the district, Sloss had not obtained permission from the city to make the connection, and that the city council had been called upon to bring suit or join in the prosecution of this one, and had failed and refused to do so. There was a prayer that a disconnection be ordered, or that Sloss be required to pay $5000 to the improvement district, which was alleged to be the value of the connection.
An answer was filed to this amended complaint, alleging all the defenses previously made.
The cause was heard by the chancery -court on October 15,1926, and an order was made but not entered upon that hearing, and on January 7, 1927, a motion was filed for a nunc pro tuno order directing the entry of the prior order. The prayer for the nunc pro tunc order was granted and the order was entered, in which it was recited that the court had found that the connection had been made without legal authority, and that Sloss had been given twenty days in which to apply to the city council for permission to make the connection, with a proviso that, if either party was not satisfied with the compensation required by the city' for the connection, a hearing would be had by the court on that subject, and jurisdiction of the cause was retained for that purpose.
On the final submission it was shown by the records of the city clerk that the complaining property owners had, on June 28, 1926, called upon the city council to bring suit or to .join in this one against Sloss for connecting with the sewer of the improvement district, but that the request was denied. It was further shown by this officer that, after the first hearing before the chancellor, a committee of the council had submitted a report, which was later adopted by the council, fixing the value of the connection at $1,225 and that this sum had not been paid.
Hugh E. Carter, a civil engineer, testified that lie had examined the plans and specifications of the sewer district and had made estimates of the proportionate part of the cost of the improvement system which Sloss should pay. He testified that there were the equivalent of 1,655 standard lots 50 by 140 feet within the boundaries of the improvement district, and 53 such lots in the Highland Park Addition, which number was 3.1 per cent, of the total number of lots in both districts, and that, on the estimated cost to the improvement district of $115,053 for the installation of the sewerage system, Sloss should pay 3.1 per cent, of that amount, or the sum of $3,566.
J. H. Eice, on behalf of Sloss, testified that he, too, had made an estimate of the amount appellant should play for the connection. Witness had been engineer in charge of the improvement district when the system was constructed, and he gave in detail the length, size and cost of the laterals and main lines and the outfall lines and of the septic tank used in the plans of the improvement. He testified that the capacity of the plant was twice that of the district’s requirements, and that no overloading resulted from the connection made by Sloss. This witness also testified that it was. not fair to require a small addition, which had installed at its own cost its pipe lines, to share in the entire cost of the larger district, and that it was proper to take into account only the cost of the main serving the Highland Park Addition, including the septic tank. He further testified that only 48 lots in the Highland Park Addition did use or could- make use of the district’s system, and that he had made a calculation so that he could tell what Sloss should pay if the court should adopt the theory that Sloss ought to share the proportionate cost of the whole outfall system, including the septic tank, instead of that part only which he used, and on that basis Sloss should pay $773.76.
Testimony was offered on behalf of Sloss to the effect that similar connections were quite common, and that ordinarily no charge, or only a nominal charge, was made for such connection.
In the case of Peay v. Kinsworthy, 126 Ark. 323, 190 S. W. 565, the commissioners of a sewer improvement district brought suit against Peay to enjoin him from making a connection with the sewers of the improvement .district until he should first pay therefor. Peay, as a private individual, constructed a system of sewers in territory adjacent to that of the improvement district, in consideration of the abutting property owners paying certain sums of money as compensation for connections with his sewer, and thereafter, without obtaining permission from the commissioners of the improvement district, Peay connected his sewer with that of the district. The improvement had not been completed nor turned over to the city, so the commissioners brought suit to require Peay to disconnect or to pay for the connection.
We there said that there appeared to be no statute controlling the case of a connection with a sewer district before it had been taken .charge of by the city, but that there was no reason why the commissioners of the district should not, prior to that time, take the necessary action to protect the interests of the district. The court in that case found the value of the connection to be $400, and enjoined Peay from making or using the connection until that sum was paid. We there copied § 5726, Kirby’s Digest, which appears as § 7541, C. & M. Digest, and provides the method of determining the charge to be made for sewerage connections by the city council.
But little need be said of the interventions of the property owners who bought lots from Sloss in the Highland Park Addition. The charge for the connection was assessed by the court below against Sloss individually, and this appears to be proper, for the reason that he sold the lots to tlie interveners upon the assumption that the lots were connected with a sewerage system, and he should therefore bear the cost of furnishing what he represented the lots already had.
We think the property owners who brought this suit are not estopped from maintaining it, as they did nothing, nor did the improvement district do anything, to induce the belief on the part of the interveners that an outlet for their sewage would be furnished without cost' to them, and the plea of laches is not well taken, for the reason that the present suit was brought within what we think was a reasonable time, under all the circumstances of the case.
We are also of the opinion that the contract between Sloss and the other commissioners of the district was not valid and binding, for the reason that Sloss was himself one of the commissioners, and he could not make a contract with himself. He should have resigned as a commissioner before making a contract with the board of which he was a member. Such contracts are contrary to public policy, and are void for that reason. Tallman v. Lewis, 124 Ark. 6, 186 S. W. 296; Gould v. Toland, 149 Ark. 476, 485, 232 S. W. 434. But, inasmuch as it is not denied that Sloss paid and the district received $100 for this connection, that sum .should be credited upon whatever amount is found to be the value of the connection.
We think also that the property owners had the right to institute this suit,, and that the action should not be dismissed as having* been prematurely brought.
As was said in the case of Peay v. Kinsworthy, supra, it was the duty of the commissioners to protect the interests of the district before it was turned over to the city as a completed project, and it was the duty of the city council thereafter to take such action as was necessary for that purpose. The original complaint alleged the failure of the commissioners to sue after demand had been made that they do so. But this allegation was made upon the theory that the commissioners were still in control of the property and affairs of the district, and, when it was discovered that the improvement had been turned over to the city as a completed project, demand .was made that the city sue, and this demand was also refused. The amended complaint alleged this fact.
It may be admitted that the property owners, as such, had no primary right to sue, and that they acquired this right only upon the failure of the commissioners to sue while the district was in their hands or the failure of the city to act after it took charge of the improvement. The undisputed testimony shows such a demand and a refusal in each case, and the right of the property, owners to sue thereupon accrued, and the amended complaint was, in effect, a new suit, which was not filed until after the city had been called upon to act and had refused to do so. We are therefore of the opinion that the property owners had the right to prosecute this suit. Tallman v. Lewis, supra; Griffin v. Rhoten, 85 Ark. 89, 107 S. W. 380.
In the development of the case it does not appear that the testimony on either side conformed to the measure of compensation provided by § 7541, C. & M. Digest, above referred to. This section provides that “no person shall be allowed to tap any such sewer without paying in proportion to the value of his property to be benefited thereby, as compared with the value of the property taxed in the district and the actual cost of said sewers.” The testimony of the two engineers who testified as experts, one on each side, expressed the views of these witnesses as to what would be an equitable basis and as to what the charge should be when calculated on that basis. We therefore decide the case made by the parties, and, as the calculations made by Rice more nearly conform to the statute and appear otherwise to be more equitable than the basis upon which Carter apportioned the cost, we accept the calculation made by Rice:
The first calculation made by Rice, fixing the value of the connection at $544.80, took account only of that part of the outfall system used by the Highland Park Addition, whereas his second calculation, fixing the value at $773.76, took into account the .whole outfall system. Rice’s testimony shows the cost of the septic tank and that of all ouitfall mains to have been $30,194, and the second calculation requires the Highland Park Addition to share in this cost. We think this should be done. The testimony shows that the lots in the Highland Park Addition are on the opposite side of the district from the sep tic tank, .and the sewlage from this property passes through a longer distance of the outfall pipe than does that of the property in the district, and it is not practicable to apportion this cost except upon the basis of the total cost of the whole outfall system and septic tank.
The decree of the court below will therefore be modified by fixing the value of the connection at $773.76, and, as $100 has been paid on that account, it will be credited thereon, and judgment will be rendered against Sloss for the difference, the same to be paid to the improvement district and to bear interest from Aug. 1, 1925, to date the connection was made.
Mr. Justice Humphreys, dissenting, is of opinion that the decree should be affirmed for the amount fixed by the city council. | [
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