author: George Rose Smith, J., Carleton Harris, Chief Justice Ed. F. MoFaddin, Associate Justice

text:
    Holiman v. Dovers.
    5-2883
    366 S. W. 2d 197
    Supplemental opinion on rehearing delivered April 15, 1963.
   George Rose Smith, J.,

on rehearing. Each side has filed a petition for rehearing. We shall first consider the appellees’ petition.

In seeking a reconsideration the majority faction makes two principal contentions. First, it is insisted that our reference to the differences between the congregational form of church government and other forms of church government implies that a congregational church is subject to judicial control in property matters, while other churches are not.

This is not the case at all. It is unquestionably the duty of the courts to decide legal questions involving the ownership and control of church property regardless of the form of ecclesiastical government that may be in effect. A dispute arising in a congregational church, however, may reach the courts more rapidly than a similar dispute under another form of church government, for there is no possibility of an appeal to higher authority within the denomination.

When recourse is provided within the denomination itself, the complaining parties must avail themselves of that remedy before resorting to the courts. Sanders v. Baggerly, 96 Ark. 117, 135, 131 S. W. 49. Yet in many instances, especially when the controversy is between a local church and the parent organization, the dispute, as far as it concerns property rights, is ultimately determined by the civil courts. For example, an individual church is free to secede from the denomination if it elects to do so, but it cannot take the church property with it where the effect of that action would be to devote the property to doctrines fundamentally different from those to which the property was dedicated. Trustees of Pencoder Presbyterian Church v. Gibson, 26 Del. Ch. 375, 22 Atl. 2d 782; Presbytery of Bismarck v. Allen, 74 N. D. 400, 22 N. W. 2d 625. Conversely, if it is the parent organization that has departed from the basic articles of faith, as by an unauthorized merger with another denomination, the local church has a right not only to secede but also to retain its property. Boyles v. Roberts, 222 Mo. 613, 121 S. W. 805. Thus the differences in the form of church government do affect the procedure by which a property dispute may reach the courts, but there is no discrimination in the rules that are to be applied when the case is eventually submitted for judicial decision.

Secondly, the majority faction presents this argument : ‘ ‘ The court usurped a function of the local church in deciding that certain doctrines were fundamental because differences among the members thereto resulted in a split in the church. In a congregational church, no authority has the power to determine what doctrines are fundamental to that church. This authority to determine doctrine is solely a matter for the church to decide by vote of the membership.”

On the spiritual side the appellees’ position is undoubtedly well taken. The majority group are, as we stated in our original opinion, completely at liberty to adopt any religious beliefs they choose and to engage a pastor who will preach the doctrines of their choice. Nor a court to restrict the exercise of such spiritual rights would clearly involve an inadmissible invasion of religious freedom.

But on the temporal side the appellees are wrong. Here the issue is one of property—nothing more. If the majority prevail in this case they will be entitled to remain in control of the physical church property at Traskwood, while the minority will of necessity have to find another place in which to hold their services. If the minority prevail those two roles will be reversed. Thus, stripped of nonessentials, what the majority are contending for in this litigation is not freedom of religious belief but simply the right to enjoy the possession and the use of tangible church property.

That property, however, was acquired by the church through the contributions and sacrifices of many members, past and present, throughout the sixty years that the Traskwood church has existed. The property was dedicated for use as a Landmark Missionary Baptist church. Even though each Landmark Missionary Baptist church is a self-governing unit, the evidence clearly shows that the Landmark Missionary Baptists are a denomination adhering to certain doctrines that are regarded, and have for many years been regarded, as fundamental. It was to the perpetuation of those doctrines that the property now in question was dedicated by those whose efforts brought about its acquisition.

In this situation the majority faction cannot divert the property to beliefs that radically depart from the purposes to which the property was originally dedicated. A fair statement of the general rule appears in Reid v. Johnston, 241 N. C. 201, 85 S. E. 2d 114: “While it is true that the North Rocky Mount Missionary Baptist Church is a self-governing unit, a majority of its membership is supreme and is entitled to control its church property only so long as the majority remains true to the fundamental faith, usages, customs, and practices of this particular church, as accepted by both factious before the dispute arose . . .

“A majority of the membership of the North Rocky Mount Missionary Baptist Church may not, as against a faithful minority, divert the property of that church to another denomination, or to the support of doctrines,, usages, customs and practices radically and fundamentally opposed to the characteristic doctrines, usages, customs and practices of that particular church, recognized and accepted by both factions before the dissension, for in such an event the real identity of the church is no longer lodged with the majority group, but resides with the minority adhering to its fundamental faith, usages, customs and practices, before the dissension, who, though small in numbers, are entitled to hold and control the entire property of the church.”

The uncompromising position of these appellees— that as the majority group they are absolutely free to divert the church property to any purpose they choose— was stated and answered in an opinion that has become a classic case in this field of the law: “After the majority has recognized itself a party to a controversy that should be settled in the interest of peace and harmony, the claim that it should itself sit in judgment to determine that controversy is somewhat novel. The minority lay at the door of the majority the charge of heresy. The majority say: ‘We constitute the church. All power is vested in the church, and hence in us. We determine that the charge is false. ’ This is the precise claim made by appellees as to the power of a majority, and it is the precise action taken by appellees as a majority in Mt. Zion Baptist Church ... In view of this, the claim of the majority that ‘if it desires to change to a Mormon church it may do so, and no person or persons, no man or body of men, either civil or ecclesiastical, has any right or power to interfere,’ is not strange. The position leads to this: Consider the majority of a particular Baptist church as guilty of the grossest violations of and the wildest departure from the church covenants and faith. Being accused by the minority, the accused sit in judgment, which it declares in its favor, and then pleads the judgment it declares as conclusive of its innocence, because no other man or body of men has authority to interfere. However such a rule may serve in purely ecclesiastical relations, we unhesitatingly say the civil law will not adhere to it where the result is to divert trust property from its proper channel.” Mt. Zion Baptist Church v. Whitmore, 83 Iowa 138, 49 N. W. 81, 13 L.R.A. 198.

The principles announced by the Iowa court are so demonstrably logical, so plainly fair and just, so completely unanswerable, that it is not surprising to find that they have been adopted in 27 of the 28 states in which the question now before us appears to have been considered. In most of the cases cited in the appendix to this opinion the courts granted the relief sought, restoring the faithful minority to the control of the church property. In many of the cases the pastor, who was ordinarily selected by the majority, was also enjoined from using the church property. It is true, of course, that in nearly every instance the court was compelled to determine a delicate issue in a religious controversy—whether there had been such a departure from the original articles of belief as to require the intervention of equity. But, in view of the controlling rule of law, that question becomes an issue of fact governing property rights, and consequently it becomes the duty of the court to decide the question, not as an ecclesiastical determination but as a temporal and judicial issue upon which property rights depend.

(For the benefit of those students of the law who may be inclined to study the authorities in detail, we are citing in an appendix to this opinion one case from each of the 27 jurisdictions which have unequivocally adopted what is overwhelmingly the majority view throughout the United States, with only Texas taking the contrary position.)

The appellees’ petition for rehearing is denied.

The appellants insist in their petition that in merely restraining Elder Dovers from using the church property we did not grant the minority the full relief to which they are entitled by law. Upon further consideration we are of the opinion that this contention is correct. We had hoped to promote unity in the church, but it is evident that our proposed solution to the controversy would not achieve that end. We have no doubt that the members of the majority group are wholly sincere in their adherence to the views expressed by Elder Dovers. That being true, it follows that the majority faction could not conscientiously devote the church property to beliefs conforming to the faith, usages, customs, and practices of this church, as they existed before this schism arose. Thus the dispute is certain to recur in the same form as long as the majority faction is in control of the church property.

The appellants’ petition for rehearing is granted, and the cause is remanded for the entry of a decree placing the appellants in possession of the church property.

APPENDIX

Jurisdictions holding that in a controversy such as this one the courts will enjoin the majority faction from devoting the church property to purposes constituting a fundamental departure from the traditional faith, customs, usages, and practices of the church:

Alabama: Guin v. Johnson, 230 Ala. 427, 161 So. 810.

California: Baker v. Ducker, 79 Calif. 365, 21 P. 764.

Colorado: Baptist City Mission Society v. People’s Tabernacle Congregational Church, 64 Colo. 574, 174 P. 1118, 8 A.L.R. 102.

Connecticut: McAuliffe v. Russian Greek Catholic Church, 130 Conn. 521, 36 Atl. 2d 53.

Delaware: Trustees of Pencader Presbyterian Church v. Gibson, 26 Del. Ch. 375, 22 Atl. 2d 782.

Georgia: Chatfield v. Dennington, 206 Ga. 762, 58 S. E. 2d 842.

Illinois: Stallings v. Finney, 287 Ill. 145, 122 N. E. 369.

Indiana: Smith v. Pedigo, 145 Ind. 361, 33 N. E. 777, 19 L.R.A. 433.

Iowa: Mt. Zion Baptist Church v. Whitmore, 83 Iowa 138, 49 N. W. 81, 13 L.R.A. 198.

Kansas: Huber v. Thorn, 189 Kan. 631, 371 P. 2d 143.

Kentucky: Parker v. Harper, 295 Ky. 686, 175 S. W. 2d 361.

Michigan: Davis v. Scher, 356 Mich. 291, 97 N. W. 2d 137.

Minnesota: Lindstrom v. Tell, 131 Minn. 203, 154 N. W. 969.

Mississippi: Linton v. Flowers, 230 Miss. 838, 94 So. 2d 615.

Missouri: Boyles v. Roberts, 222 Mo. 613, 121 S. W. 805.

New Hampshire: Hale v. Everett, 53 N. H. 9, 16 Am. Rep. 82.

New Jersey: Grupe v. Rudisill, 101 N.J. Eq. 145, 136 Atl. 911.

New York: Saint Nicholas Ukrainian Orthodox Church v. St. Nicholas Ruthenian (Ukrainian) Greek Catholic Church, 157 N.Y.S. 2d 586.

North Carolina: Reid v. Johnston, 241 N. C. 201, 85 S. E. 2d 114.

North Dakota: Presbytery of Bismarck v. Allen, 74 N. D. 400, 22 N. W. 2d 625.

Ohio: Kemp v. Lentz, 46 Ohio Law Abs. 28, 68 N. E. 2d 339.

Pennsylvania: Church of God v. Church of God, 355 Pa. 478, 50 Atl. 2d 357.

South Carolina: Middleton v. Ellison, 95 S. C. 158, 78 S. E. 739.

Tennessee: Beard v. Francis, 43 Tenn. App. 513, 309 S. W. 2d 788.

Virginia: Finley v. Brent, 87 Va. 103, 12 S. E. 228.

(Original opinion delivered March. 4, 1963, p. 211.)

West Virginia: Canterbury v. Canterbury, 143 W. Va. 165, 100 S. E. 2d 565.

Wisconsin: Franke v. Mann, 106 Wis. 118, 81 N. W. 1014.

Contra. Texas: First Baptist Church of Paris v. Fort, 93 Tex. 215, 54 S. W. 892, 49 L.R.A. 617.

Carleton Harris, C. J., concurs.

Ed. F. McFaddin, J., dissents.

Carleton Harris, Chief Justice

(concurring). There has been a great deal of confusion and misunderstanding as to the position taken by this court, and I desire to take this opportunity to comment upon these aspects of the case wherein the greatest amount of misunderstanding seems to have arisen.

First, the question of separation of church and state is not involved in this litigation. This court is not concerned with the beliefs of any individual; no one is being told to accept any particular doctrine; no one is advised that one doctrine is preferable to another; Elder Dovers and his followers may expound their beliefs next door to the present building, across the street from the present building, or, as far as we are’ concerned, at any place in the world—except in the property involved in this litigation, which was dedicated, to another purpose. This, brings me to the second point of misunderstanding.

As a Baptist, I am, of course, well aware that an individual Baptist church is entirely independent and autonomous, and its affairs cannot be directed by the denominational organization. I should like to call attention to the fact that, while the tenets and beliefs of Landmark Missionary Baptist in general were radically departed from by the interpretations and preaching of Elder Dovers, the articles of faith under ivhich this particular church was operating were likewise violated.

The third point of misunderstanding is possibly the one that I desire most to comment upon. It has been suggested that in granting the relief sought by appellants, this court has set a precedent, i.e., we have rendered a. holding heretofore unknown to the law, and not found in judicial annals. This assertion is completely and totally erroneous. The majority has pointed out that 27 states have held what this court is holding today, with only one state taking a contrary position. A case is cited in the appendix from each of those 27 jurisdictions; actually, several cases of like import appear in the Reports of each of these states, and in some states numerous cases are cited to the same effect. Most of the cases involve one or another of the various groups of the Baptist faith, though I have read cases that relate to several other denominations that also operate as congregational type churches.

Without endeavoring to determine definitely when the first holding was rendered to this effect, I can say that cases, holding the view herein expressed, have been declared the law as early as 1868. Hale v. Everett, 16 AM Rep. 82.

The most recent case that I am aware of is Huber v. Thorn, 371 P. 2d 143. This case was decided less than a year ago (May 5,1962, with rehearing denied on June 22, 1962) by the Supreme Court of Kansas. The litigation involved the largest Baptist church in Kansas, the First Baptist Church of Wichita. According to the opinion, written by Justice Jackson, the property was worth approximately two million dollars above existing indebtedness. After giving a brief historical review of the Baptist church in this country from the time of Roger Williams, and recognizing “that one of the firm principles of the Baptist church has been that each church was its own master and might run its own affairs as an autonomous church,” the court proceeded to discuss the schism that had arisen in the congregation. Though a majority had voted on two occasions (once by a vote of 1,174 to 235, and subsequently by a ratio of 2% to 1) to take certain action, the Supreme Court found that the vote by the majority violated the tenets, rules and practices of the church, and directed the trial court to issue an injunction against the majority, as sought by the minority. Reid v. Johnston, 85 S. E. 2d 114, one of several cases from North Carolina, a rather well known case, is cited, and quoted from, in the present majority opinion. This ease was decided a little over eight years ago.

Not only is the overwhelming weight of authority in support of the position here taken, but the language of our own cases is likewise in complete accord. While we have had no cases involving the use of church property, where the evidence established that the majority had departed from basic doctrines and tenets, there is certainly no question in my mind as to the action this court would have taken had that issue been presented and sustained. I should like to briefly discuss our Arkansas cases where Baptist churches were involved. First, however, let it be pointed out that all of the cases (wherein property rights were at issue) hold that a court has jurisdiction to settle property disputes in a congregational church. Reference will be made to this in discussing the opinions.

Chambers v. Jones, Chairman, 222 Ark. 596, 262 S. W. 2d 285, involved simply the question of whether a pastor was legally discharged. Rush v. Yancey, 233 Ark. 883, 349 S. W. 2d 337, related to the question of whether a pastor was properly discharged and, further, whether a certain meeting, at which some members were excluded, was a legal meeting. No question of departure from doctrine was raised in either case. In Hatchett, et al, v. Mt. Pleasant Baptist Church, et al, 46 Ark. 291, a majority of the members of the church discharged the pastor because of disorderly conduct, but he endeavored to continue to preach. Again, no question of deviation from basic church tenets or doctrine was at issue. This court, in upholding the trial court, which had enjoined Hatchett from acting as pastor, said, “In a congregational church, the majority, if they adhere to the organ ization and to the doctrines, represent the church.” In Monk v. Little, 122 Ark. 7, 182 S. W. 511, a dispute arose in the Little Flock Primitive Baptist Church. Here, two factions disagreed as to who should serve as pastor, but no question of departure from basic doctrine was presented to this court, the contentions relating entirely to two questions, viz., whether the petition of an excluded member for restoration to the church should have been granted, and whether the two factions had agreed to abide by the decision of a council of ministers which had heard the case. Both sides, of course, wanted to use the church property. This court, in its opinion, set forth the two principles of law which are likewise present in the instant litigation. Quoting from that case:

“(1) In the case before us, property rights are involved, and the court properly assumed jurisdiction of the case.
(2) In the case of Hatchett, et al, v. Mount Pleasant Baptist Church, et al, 46 Ark. 291, the court expressly held that in a congregational church the majority, if they have adhered to the organization and to the doctrines of the church,5b represent the church.”

In Ables v. Garner, 220 Ark. 211, 246 S. W. 2d 732, a Landmark Missionary Baptist Church case, the trial court held that conduct of the church, ‘ ‘ such as the designation of messengers as observers and their attendance when the North (American Baptist) Association convened, and conduct of the church in purchasing or in not purchasing particular literature, — these were not such departures from the faith entertained by the acting body as to justify civil interference with property rights.” The trial court found that essential tenets had not been impaired and this court, on appeal, in an opinion by the late Chief Justice Griffin Smith, said,

“We are unable to say that these findings were contrary to preponderating evidence. Our cases hold that in a congregational church, the majority, acting as local church rules provide, represents the organization unless there is a departure from essential doctrines.”

Further in the opinion, this court refers to the case of Booker v. Smith, 214 Ark. 102, 214 S. W. 2d 513, and states,

“It was said that the rights of different factions forming a religious body under the congregational form of church government are to be determined by the membership and that a majority controls. This statement, of course, assumes that the vote has been cast according to established rules. It also presupposes that from a doctrinal standpoint there has not been such an abrupt departure from congregational principles as to discredit the prevailing'group as a matter of laiv.”6b

Booker v. Smith, supra, involved the Antioch Baptist Church in Bradley County, Arkansas. The Antioch church was organized prior to 1866. In 1868, a tract of one acre was conveyed to three named persons as “deacons of the Baptist church in trust for a place of religious worship.” From the opinion:

“From the evidence in the record, the following facts appear: In 1902, there arose a dispute among some of the Baptist churches in Arkansas as to the handling of money for mission purposes. One group to the dispute was called “Convention Baptists,” and the other group was called “Landmark Baptists.” This appears as a statement vouched for by a witness: “ In 1902, a division came among Arkansas Baptists and the Landmark body was organized.’ ” The same witness said of the Antioch Church: Q. You testified that it could not have been a Landmark Church before 1902, because the Landmark Church was not organized before 1902? A. The Landmark Association was not.’ ”

According to the opinion, the dispute between the two groups within the Antioch Church came to the surface in 1924. At a regular meeting a vote was taken to determine whether the church would adhere to the Convention Baptists or to the Landmark Baptists, and the vote was 31 to 14 for the Convention Baptists. Thereafter, a settlement was effectuated whereby the Landmark Baptists were allowed to use the church building the first and third Sundays of each month, since the Convention Baptists held services only on the second and fourth Sundays. The testimony reflected that members of the two groups would attend the other’s church services; however, after 20 years of this joint use of the building, litigation developed which eventually made its way to this court, the case being decided in November, 1948. "We said:

“Appellants here are the representatives of the Convention Baptist group, and they claim full control of all the church property subject only to the use agreement made in 1924. Appellees are the representatives of the Landmark Baptist group, and are seeking either to sustain the decree of the chancery court or—-by cross appeal—to obtain an election to determine the present numerical strength of the two groups. It is admitted that both the Convention group and the Landmark group at Antioch have remained true to the Faith and Doctrines of the Baptist church.

“The only reason for judicial intervention is the settlement of the property rights claimed by the rival groups. ’ ’

This court held that the matter was settled by the 1924 election, but certainly the question of deviation from basic doctrine was not involved, since, as shown by the opinion (here quoted), both groups were admittedly true to Baptist doctrine. Furthermore, the trust was originally created for “Baptists” and, as shown by the opinion, the Landmark group was not in existence at the time of the execution of the deed.

To me, it is apparent, from this review of our own decisions, that the rule, upon which the present case is decided, was recognized by this court many years ago.

Actually, in nearly 15 years on the bench, I cannot recall any issue where there is more unanimity of opinion by state courts than on the question here presented.

It has been said that a Baptist church is the ‘ ‘ purest democracy in the world,” which is also to say that majority rule is a recognized principle of that denomination. But like other great principles, legal and constitutional, there is a limitation. For instance, we recognize that every adult citizen of Arkansas is entitled to vote in every election—but only if he holds a proper poll tax receipt! The Constitution of these United States and the Constitution of the State of Arkansas guarantee freedom of speech—but this does not mean that one can slander his neighbor with impunity! Both documents likewise guarantee freedom of the press—but this does not give license to libel! Yes—in a Baptist church, “the majority rule ’ ’—but with the limitation that property, dedicated to specific doctrines and tenets, cannot be appropriated by a majority from a faithful minority, and used for the promotion of alien beliefs or dogma!

Accordingly, I am of the view that the property dedicated to the doctrines, usages, customs and practices of the Traskwood Landmark Missionary Baptist Church, as set forth in the articles of faith and abstract of faith under which the Trashtvood church was operating, cannot be diverted to the use of those whose doctrines and usages are contrary to such articles and abstract of faith, and who would thus use the property contrary to the purpose for which it came into being.

Ed. F. MoFaddin, Associate Justice

(dissenting). On rehearing there is a supplemental opinion and a concurring opinion. In accordance with the views expressed in my original dissent, I would grant the appellees ’ petition for rehearing and affirm the decree of the Chancery Court. The more I study this case, the more thoroughly I am convinced of the correctness of the views stated in my original dissent; and I register this present dissent so that no one will think I have weakened in my position.

       The North Carolina Supreme Court, in its judgment, stated concisely the general rule: “That the true congregation of the North Rocky Mount Missionary Baptist Church consists of the plaintiffs and all other members of the congregation who adhere and submit to the characteristic doctrines, usages, customs and practices of this particular church, recognized and accepted by both factions of the congregation before the dissension between them arose.”

        Rush v. Yancey, 233 Ark. 883, 349 S. W. 2d 337; Chambers v. Jones, Chairman, 222 Ark. 296, 262 S. W. 2d 285; Ables v. Garner, 220 Ark. 211, 246 S. W. 2d 732; Monk v. Little, 122 Ark. 7, 182 S. W. 511; Hatchett v. Mt. Pleasant Baptist Church, 46 Ark. 291: Booker v. Smith, 214 Ark. 102, 214 S. W. 2d 513.

       Emphasis supplied.

         The original vote on the hiring of the pastor was a tie, and the vote of the excluded member, had he been restored to membership, apparently would have broken the tie.

       a. and b. Emphasis supplied.

       a. and b. Emphasis supplied.

       This information was evidently placed in the opinion as a matter of showing that the Landmark Baptists could not have been the intended recipients of the property since this group was not in existence at the time the deed was obtained.

       Emphasis supplied.


source: Caselaw Access Project

author: Carleton Harris, Chief Justice.

license: Public Domain

text:
    Chamberlain v. Crawford, Ex’r.
    5-2974
    366 S. W. 2d 897
    Opinion delivered April 22, 1963.

      Caldwell T. Bennett and-TP. E. Billingsley, for appellant.

      Murphy S Arnold, for appellee.
   Carleton Harris, Chief Justice.

This is an appeal from the Probate Court of Independence County, Arkansas, wherein a claim filed by appellant, Ray C. Chamberlain, against the estate of Claude C. Crawford, deceased, was disallowed because it was not filed within the statutory period.

Claude Crawford departed this life in Memphis, Tennessee, about June 10, 1961, and his Last Will and Testament was admitted to probate in Shelby County, Tennessee, on June 15. On August 18, 1961, a petition was filed in the Independence County Probate Court, seeking ancillary administration for certain property located in that county.

Pat Crawford, a brother of the deceased, and executor under the will admitted in Shelby County, was named personal representative for the ancillary administration on August 26, 1961. Thereafter, on September 1, 1961, the personal representative caused to b® published the “Notice to Creditors,” notifying all creditors to exhibit their claims within six months from the first date of publication, or be forever barred. On September 26, the several heirs of Claude C. Crawford filed an “Entry of Appearance and Waiver of Notice.” On March 15,1962, appellant filed his claim against the estate of Claude C. Crawford, which the court disallowed, the court finding “that the claim of Ray C. Chamberlain be disallowed as not being filed within the six months period allowed for claims against the estate after publication of notice to the creditors.” From such order, comes this appeal.

The appeal is predicated on the fact that the several entries of appearance and waivers of notice by the heirs of the testator were not filed until September 26, 1961, and appellant contends that the notice to creditors could not have been legally published until after the entries of appearance and waivers of notice had been filed. He thus asserts that his claim was filed within proper time; in other words, that the six months statute did not commence to run until September 26.

We do not agree with this contention. At the outset, it will be noted that appellant is not complaining of lack of notice to himself, but rather is complaining of an alleged lack of notice to the heirs. Of course, if the heirs had felt aggrieved at any action taken, or were of the view that some right had been denied them because no notice was given, theirs was the prerogative (under certain circumstances) to complain, but that question is not here presented. In fact, the heirs filed no demand for notice, and, as herein stated, subsequently entered their appearance and waived notice. Section 62-2107, Ark. Stats., provides:

“If an interested person desires to be notified before a will is admitted to probate or before a general personal representative is appointed, he may file with the clerk a demand for notice. A demand for notice is not effective unless it contains a statement of the interest of the person filing it, and his address or that of his attorney. After filing same, no will shall be admitted to probate and no personal representative shall be appointed other than a special administrator until the notice provided in Section 49 (Sec. 62-2110) has been given.”

Section 62-2109 further provides:

“Upon filing the petition for probate or for the appointment of a general personal representative, if no demand for notice has been filed as provided in Section 46 (Sec. 62-2107), and if such petition is not opposed by an interested person, the court may, in its discretion, hear it forthwith or at such time and place as it may direct, without requiring notice.”

Still further, from Section 62-2111:

“Promptly after the letters have been granted on the estate of a deceased person, the personal representative shall cause to be published a notice of his appointment, stating the date thereof, and requiring all persons having claims against the estate to exhibit them properly verified to him, within six months from the date of the first publication of the notice, or they shall be forever barred and precluded from any benefit in such estate. * * * ”

The remaining statute, applicable to this litigation, is Section 62-2601. "We think this claim was clearly barred under either § 62-2111 or § 62-2601.

In Wolfe v. Herndon, 234 Ark. 543, 353 S. W. 2d 540, we said:

“In analyzing the statutes our starting point must be § 100 of the Probate Code, which sweepingly declares that, except in two instances, all claims against a decedent’s estate, ‘whether due or to become due, absolute or contingent, liquidated or unliquidated, founded on contract or otherwise,’ shall be forever barred unless presented to the personal representative or filed in court within six months after the first publication of the notice to creditors. Ark. Stats., § 62-2601. This language unmistakably expresses the legislative intention to require the assertion of all claims, including those sounding in tort, within the six-month period.”

Further:

“McAllen Wolfe complains that his guardian ad litem was not appointed in strict compliance with the statute. This is immaterial. The question is whether his claim against the Jacobs estate has been presented within the time allowed by law. * * * In the absence of a savings clause it was incumbent upon McAllen to present his claim in compliance with the statute. The asserted procedural irregularity could not affect his affirmative duty of establishing his claim according to law.”

Since the record reflects that statutory requirements were followed by the personal representative, and that appellant’s claim was filed more than six months after the first publication of notice to creditors, it follows that the claim was properly disallowed.

Affirmed.

       The court never did reach the merits of the claim.

       Pertinent portions of Section 62-2601, are as follows:
      a. STATUTE OF NONCLAIM. Except as provided in Sections 111 [§ 62-2602] and 119 [§ 62-2610], all claims against a decedent’s estate, other than expenses of administration and claims of the United States which, under valid laws of the United States, are not barrable by a statute of nonclaim, but including claims of a state or territory of the United States, and any subdivision thereof, whether due or to become due, absolute or contingent, liquidated or unliquidated, founded on contract or otherwise, shall be forever barred as against the estate, the personal representative, the heirs and devisees of the decedent, unless verified and presented to the personal representative or filed with the court within six months after the date of the first publication of notice to creditors.
      b. STATUTES OF LIMITATION. No claim shall be allowed which was barred by any statute of limitation at the time of the decedent’s death.
      c. WHEN STATUTE OF NONCLAIM NOT AFFECTED BY STATUTES OF LIMITATION. No claim shall be barred by the statutes of limitation which was not barred thereby at the time of the decedent’s death, if the claim shall be presented to the personal representative or filed with the court within six months after the date of the first publication of notice to creditors. * * * *


author: Ed. F. MoFaddin, Associate Justice.

text:
    Stratton v. Corder.
    5-2988
    366 S. W. 2d 894
    Opinion delivered April 22, 1963.

      John L. Anderson, for appellant.

      George K. Cracraft, Jr., for appellee.
   Ed. F. MoFaddin, Associate Justice.

The posed question is the validity of a gift inter vivos. The appellants and appellees together constitute all the heirs at law of E. E. Corder, who died intestate on November 27, 1960, possessed of considerable realty. His estate has been administered and the heirs desire to partition the property. The only issue on this appeal is the validity and effect to be given an instrument executed by E. E. Corder to the appellee, Monte E. Corder.

In December 1952 E. E. Corder was the owner of the store building in Helena, Arkansas, described as 416 York Street, and Monte E. Corder was operating the Oorder Furniture Store in said building. On December 16th Mr. E. E. Corder executed the following instrument:

“In consideration of the affection that I have for my nephew, I, E. E. Corder, give to my said nephew, Monte E. Corder, the right to occupy a store building located at 416 York Street, Helena, Arkansas, where he now operates the Corder Furniture Company free of rental charges so long as he desires to continue said operation. /s/ B. E. Corder.”

This instrument was duly acknowledged and placed of record in Phillips County, Arkansas, by B. E. Corder, and delivered by him to Monte E. Corder, who has continued at all times from December 16, 1952 to the present to operate the Corder Furniture Store at 416 York Street, and has paid no rent to anyone for such use.

The appellants, as plaintiffs, filed this suit, praying that the said instrument be declared null and void and that the property be sold free of any claims of Monte E. Corder under said instrument. The appellees claim the instrument to be valid. The Chancery decree was in favor of the validity of the instrument; and on this appeal the appellants urge two points, which we now list and then consider together in deciding this case:

“I. The instrument in question does not meet the requirements of a gift ‘ inter vivos.
“II. The instrument in question does not meet the requirements of a lease agreement and is void for uncertainty. ’ ’

The intention of ft. E. Corder is clear; but the appellants insist that such intention was not accomplished in compliance with legal requirements. We agree with the Chancery decree that the instrument is valid. It was a completed gift inter vivos and conveyed to Monte E. Corder a right in the property analogous to a widow’s right of homestead. To make a valid gift inter vivos: (a) the donor at the time must have been of sound mind; (b) must have actually delivered the subject matter of the gift to the donee; (c) by such act must have intended to pass title thereto to the donee to take effect immediately; and (d) the donee must have actually accepted it as a gift. These are the requirements specifically stated in Lowe v. Hart, 93 Ark. 548, 125 S. W. 1030, and recognized in the authorities generally (24 Am. Jur. p. 738 et seq., “Gifts” § 20 et seq.).

(a) That the donor, ft. E. Corder, was of sound mind has not been questioned in this case, (b) That It. E. Corder actually delivered the subject matter of the gift to Monte E. Corder is clearly established, because Monte E. Corder was in possession of the property and the instrument was delivered and placed of record. 24 Am. Jur. p. 749, “Gifts” § 32 et seq.; 28 C. J. p. 637, “Gifts,” § 26; 38 C.J.S. p. 802, “Gifts” <§. 22; Annotations in 63 A.L.R. 545 and 48 A.L.R. 2d 1409. (c) That R. E. Corder intended to pass to the donee the title of the gift (i.e., the free use of the property for the limited time) is established by the fact that E. E. Corder continued to live from 1952 to 1960 and saw his donee occupy the property, rent free, during all such period of time, (d) That the donee, Monte E. Corder, accepted the gift is established by the fact that he has continued at all times in possession of the property, rent free. A gift inter vivos may be of any kind of property, i.e., real, personal, or mixed. 24 Am. Jur. p. 763 et seq., “Gifts” § 66 et seq.; 38 C.J.S. p. 808, “Gifts” § 30 et seq.

The appellants insist that the gift was conditional, since the free use of the building was to be for only so long as Monte E. Corder operated a furniture store therein. We hold the gift was absolutely unconditional. It was beyond the power of the donor, R. E. Corder, to make a termination of the gift after the delivery. The fact that when the gift should expire by its terms there would be a reversion to the estate of R. E. Corder did not and does not keep the gift from being unconditional. The reverter did not make the gift conditional: it showed the termination of the right of Monte E. Corder. The fact that on December 16, 1952, R. E. Corder did not know for how long such use would continue did not make the gift conditional or defeasible or uncertain.

The appellants insist that the instrument did not create a valid estate; and that at most it was an estate at sufferance and therefore could be terminated by either party. We do not agree with appellants’ contention. As we have said, the right of Monte E. Corder to use the store building at 416 York Street is analogous in many respects to the homestead right of a widow under Art. 9, § 6 of our Constitution. She has a homestead right for her life, subject to abandonment. Garibaldi v. Jones, 48 Ark. 230, 1 S. W. 149; Neeley v. Martin, 126 Ark. 1, 189 S. W. 182; Van Pelt v. Johnson, 212 Ark. 398, 259 S. W. 2d 519. In the case at bar, Monte E. Corder had the personal right to use the store building for a furniture store, subject to abandonment.

Finding no error, the decree of the Chancery Court is affirmed.

       The Chancellor rendered a written opinion, which we copy:
      “It is my understanding that at this stage of the litigation between the parties to this action the Chancellor is requested to make a determination only of the legal effect of the certain written instrument dated December 16th, 1952, executed by R. E. Corder, by which he gave or undertook to give to his nephew, Monte Corder, the right to occupy a store building located at 416 York Street in Helena, Arkansas, where he at this time operated the Corder Furniture Company free of rental as long as he desires to continue said operation. The instrument was executed by R. E. Corder, acknowledged in proper form and placed of record in the Recorder's Office which indicates delivery. As the stipulation seems to indicate possession and occupancy has been exercised by Monte Corder for nearly ten years since the date of the instrument. The question for decision seems to be to determine if Monte Corder has the right to continue to occupy the building free of rent as against the heirs and next of kin of R. E. Corder, deceased. The record seems to indicate that R. E. Corder died intestate and there was no testamentary provision with reference to this property or any of his other assets . . .
      “I do not term this instrument as a lease agreement as between the parties making it but rather the donation or gift of a property right by an uncle to his nephew. The intentions of R. E. Corder as reflected by the writing appear to be definite and certain and I do not find any legal preclusion which would negate such a conveyance. While the instrument is not drawn as a good lawyer would have drawn it, the writing is clear and unambiguous though the term ‘as long as he desires to continue said operation' could have been couched in more certain terms. I think it is manifest that R. E. Corder intended for Monte E. Corder to occupy the premises for so long a time as he operated the furniture company in the location, and he should be permitted to continue his occupancy free of rent until he ceases to use the building for that purpose. Of course there would be no title in Monte Corder under the instrument and the rights he acquires by reason of it would terminate upon his death. The grant under the instrument could not be enlarged to include any other property or buildings other than at 416 York Street, Helena, Arkansas.”


author: Paul "Ward, Associate Justice.

text:
    Norman v. State.
    5067
    366 S. W. 2d 891
    Opinion delivered April 22, 1963.

      William T. Stahl, for appellant.

      Bruce Bennett, Atty. General, by Jerry L. Patterson, Asst. Atty. General, for appellee.
   Paul "Ward, Associate Justice.

Appellant, James Daniel Norman, was found guilty by a jury of the crime of robbery, and tbe court sentenced Mm to six years in tbe penitentiary.

To better understand the issues raised on appeal by appellant, we set out below a summary of the facts and circumstances attending the alleged offense, Ms apprehension, and his trial.

The testimony shows: that appellant (or someone alleged to be appellant) engaged a taxi (driven by A. J. Shepperson) in Memphis at about two a.m. on December 3,1957, for the purpose of driving to Marion, Arkansas; that they drove two miles past Marion when appellant drew a pistol on Shepperson and forced Shepperson to give him $15; that appellant was taken into custody by R. E. Craig (a deputy sheriff) on January 18, 1962, in Hawkinsville, Georgia, where appellant was an inmate of a county prison farm, and; that he was promptly confined in the Crittenden County jail where he remained until tried on September 18, 1962. The information was filed January 29,1962.

Appellant’s contention for a reversal is based on three separate grounds, to-wit: One, introduction of certain evidence; Two, disqualification of the trial judge; and, Three, insufficiency of the evidence.

One. The state, in order to explain the delay (from 1957 to 1962) in trying appellant, and in order to avoid the provisions of Ark. Stats. § 43-1602 and to invoke the provisions of § 43-1604, offered to prove by E. E. Craig that appellant made certain statements to him about the length of time he had served in the Georgia prison. Appellant objected to the testimony, but after the trial court admitted the testimony and explained its purpose, no exception was saved to the ruling of the court. In this situation we are not at liberty to examine the merits of the objection, as was fully explained in Criner v. State, 236 Ark. 220, 365 S. W. 2d 252.

Two. Before the trial began appellant filed a motion, asking the trial judge to disqualify himself and to transfer the cause to another judge. The motion was denied, and appellant saved his exceptions. We have no hesitancy in approving the action of the trial court. However, in explanation of the action of the trial judge and also the attorney who made the motion, we set out below, the attending facts and circumstances.

Previous to the trial the court had appointed an attorney to represent appellant, but, for reasons set out in the record, the attorney requested to be and was relieved of the appointment. Thereupon, the present attorney was appointed to handle the defense. The first attorney’s request was in a letter to the trial judge. Appellant objected to certain portions of the letter which, he thought, might tend to prejudice the trial judge against him. In overruling the motion the trial court commented frankly on the situation, making a full disclosure of his attitude. Among other things the court, in referring to the letter, said: It “did not nor does it at this time cause the court, as it now exists, to have any bias or prejudice against the defendant.”

Appellant, in his brief, commendably admits the trial judge was not disqualified (under the provisions of Article 7, § 20 of the Constitution or Ark. Stats. § 22-113) because of any interest in the case. Appellant suggests that the trial judge might have disqualified himself in keeping with certain language quoted (from 15 R.C.L. 530, § 18) in the case of Hudspeth v. State, 188 Ark. 323, 67 S. W. 2d 191. However, neither the cited opinion nor the quoted language sustains appellant. The latter, in speaking of bias or prejudice as a disqualification of a judge, says “. . . this must be shown as a matter of fact, and not as a matter of opinion of the defendant or any other person.” In the case under consideration not only are there no facts showing bias or prejudice, but no one even expresses an opinion that either existed. As aptly stated by the trial court at the time the motion was overruled, it could not “in carrying out the duty required of it, disqualify for the reasons alleged. ’ ’

Three. The question raised as to tLe sufficiency of the evidence to sustain the conviction relates only to the identity of the person who robbed Shepperson. Shepperson, on direct examination, was “quite sure” the appellant was the man who robbed him — he saw appellant in the light near the Peabody Hotel in Memphis. On cross-examination the witness appeared to be somewhat less certain, as shown by the following:

‘‘ Q. Remember, you are under oath?
' ‘ A. That is right.
‘ ‘ Q. Sworn to tell the truth ?
‘‘A. That is right.
“Q. Can you, beyond a doubt, say that this is the man, the passenger in your cab that night?
“A. This gentleman looks like the gentleman, only had a shorter haircut.
‘ ‘ Q. Can’t say, positively ?
“A. Five years makes a lot of difference, 'but to me the face of the gentleman looks the same to me.
“ Q. Is it true, you cannot say, positively, this is the man?
“A. I can’t say, under oath, no, I won’t say it.”

Following the above the state introduced a picture of appellant made when he was placed in the Crittenden County jail. On recall of Shepperson by the state this picture was shown to him and he was asked if that was the man who robbed him.

“A. Yes, sir. This is the gentleman.

‘ ‘ Q. Can you tell the jury of whom that is a picture?

“A. That is a picture of the gentleman sitting- over here.

‘ ‘ Q. Can you say —

“A. That is the man right there, he is much heavier there and the crew haircut.

‘ ‘Q. Hair cut similar or different from the man?

“A. Hair cut just about that way, short haircut.

‘ ‘ Q. Does, Mr. Shepperson, does seeing that picture make you any more or less certain of your identification of the defendant?”

“A. I believe, I am more certain.

‘ ‘ Q. What do you tell the jury, Mr. Shepperson, now, about whether this is the man who committed the crime ?

“A. Without a doubt, I believe, this is the man.”

In view of the above testimony we are unwilling to say the jury verdict was not supported by substantial evidence.

Affirmed.

Holt, J., disqualified.


author: Sam Bobinson, Associate Justice. Jim Johnson, Associate Justice

text:
    Thornbrough, Commr. v. Mayner.
    5-2877
    366 S. W. 2d 889
    Opinion delivered April 22, 1963.

      Luke Arnett and Herrn Northcutt, for appellant.

      Mark E. Woolsey, for appellee.
   Sam Bobinson, Associate Justice.

On the 9th day of July, 1952, the Administrator of the Employment Security Division of the State Labor Department filed with the Circuit Clerk of the Franklin Circuit Court, a certificate of assessment of contributions levied against appellee, Paul Mayner, under authority of the Arkansas Employment Security Act, Ark. Stats. 81-1115 - 81-1122. On September 12, 1961, appellant caused an execution to be issued on said assessment which, according to the statute, has the force and effect of a judgment. On November 1, 1961, appellee filed this action petitioning the court to set aside the purported judgment and to quash the execution, contending that the recorded assessment does not have the force and effect of a judgment; that it is invalid and void. The court granted the petition, set aside the judgment, and quashed the execution. The Commissioner of Labor has appealed.

Ark. Stats. 81-1117(e) provides: “If any person, firm, or corporation shall become delinquent in the payment of any contribution or interest or penalties required to be paid by the act, it shall be the duty of the Administrator, when the amount of such contribution, interest, and penalties is determined, either by the report of the employer or by such investigations as the Administrator may have made, to assess the contributions, interest and penalties so determined against such delinquent employer, and to certify the amount of such contributions, interest, and penalties to the Commissioner, and mail or otherwise deliver a copy of said assessment to the delinquent employer. At the end of ten [10] days thereafter, said assessment shall become prima facie correct, and the Administrator shall certify the amount of said delinquent contributions, interest, and penalties to the clerk of the circuit court of the county wherein the employer is domiciled or has a place of business and it shall be the duty of the clerk to file such certificate of record and to enter the same in the record of the circuit court for judgment and decrees under the procedure prescribed for filing transcripts of judgments by sections 8440 and 8442 of Pope’s Digest of the Statutes of Arkansas, 1937 [§§ 26-1121, 26-1123], and thereupon the said assessment shall have the force and effect of a judgment of the circuit court. Execution shall thereupon be issuable, at the request of the Administrator, his agent or attorney, or any other employee of the Employment Security Division of the Department of Labor of the State of Arkansas, forthwith by the clerk of the circuit court, directed to the sheriff, who shall make a levy on any property, assets, or effects of the employer against whom the contribution is assessed.”

Appellee Mayner contends, and the trial court held, that the certificate filed with the circuit clerk is null and void because it shows on its face that ten days had not elapsed from the time the Administrator made the assessment of delinquent contributions until the certificate of delinquency was executed. The matter was certified by the Administrator to the Commissioner of Labor on the 27th day of June, 1952, and on the 7th day of July, the Administrator certified that ten days had expired. Appellant contends that even if it is conceded that under the wording of the statute the first and last day should be excluded and therefore ten days had not expired, the appellee still cannot prevail.

There is no allegation or showing that appellee has a meritorious defense to the assessment. Appellant points out that under our statute and decisions, a judgment shall not be set aside until there is a showing of a meritorious defense to the action in which the judgment is rendered. Ark. Stats. 29-509 provides: “A judgment shall not be vacated on motion or complaint until it is adjudged that there is a valid defense to the action in which the judgment is rendered. ... ”. In Overton v. Alston, 199 Ark. 96, 132 S. W. 2d 834, it was held that a judgment could not be set aside on certiorari even though erroneous and void, unless it appears from the petition that petitioner has a meritorious defense to the action. See also St. Louis & San Francisco Railroad Co. v. Bowman, 76 Ark. 32, 88 S. W. 1033. In Berringer v. Stevens, 145 Ark. 293, 225 S. W. 14, it was held that “valid” as used in the statute, is synonymous with the word “meritorious ’ ’. See also Haville v. Pearrow, 233 Ark. 586, 346 S. W. 2d 204; Alexander v. Jones, 233 Ark. 708, 346 S. W. 2d 692.

Appellee contends that there is a distinction between a judgment and the assessment filed with the clerk in this case, which, according to the statute, has the force and effect of a judgment. We can see no valid distinction between a judgment and a recording having the force and effect of a judgment. The two are synonymous. There was an analogous situation in Davis v. Bank of Atkins, 205 Ark. 144, 167 S. W. 2d 876, where the court said: “The effect of this action on the part of appellee under the section of the statute, supra, was to transfer completely the judgment from the justice court, an inferior court, to the circuit court, a superior court, and to give this judgment the same force and effect, and the same remedies for enforcement, as if the judgment had been originally rendered by the superior court. ’ ’ (Our italics).

Here, the statute provides that when the assessment is filed with the clerk it shall have the force and effect of a judgment. This being true, it cannot be set aside until there has been a showing of a meritorious defense.

Reversed and remanded for further proceedings not inconsistent herewith.

Johnson, J. dissents.

Jim Johnson, Associate Justice

(dissenting). In reversing this case the majority has indulged an assumption that is, in my view, contrary to the record. The majority has assumed the judgment which the trial court set aside is valid on its face, when in fact the record reveals unequivocably that it is not prima facie correct or valid on its face. The law on this question has long been settled by Woodburn v. Driver, 81 Ark. 333, 99 S. W. 384 (83 C.J.S. p. 794), where this court held that a judgment in a summary proceeding must be such as is authorized by law. Was this judgment authorized by law!

The record reveals that the Administrator of the Employment Security Division of the State Labor Department proceeded under Ark. Stats. §§ 81-1115 - 81-1122. As provided under § 81-1117(e), the Administrator is to notify a delinquent employer of an assessment against the employer. This section further provides: “At the end of ten [10] days thereafter, said assessment shall become prima facie correct, and the Administrator shall certify the amount of said delinquent contributions, interest and penalties to the clerk of the circuit court of the county wherein the employer is domiciled or has a place of business and it shall be the duty of the clerk to file such certificate of record and to enter the same in the record of the circuit court for judgment and decrees under the procedure prescribed for filing transcripts of judgments by sections 8440 and 8442 of Pope’s Digest of the Statutes of Arkansas, 1937 [§<§ 26-1121, 26-1123], and thereupon the said assessment shall have the force and effect of a judgment of the circuit court.” [Emphasis mine.]

This is clearly a summary proceeding and the strict construction which we are forced to give it, Files v. Robinson db Co., 30 Ark. 487; Prairie Creek Coal Mining Co. v. Kittrell, 107 Ark. 361, 155 S. W. 496, 50 Am. Jur., Statutes, § 406, makes it mandatory that any judgments rendered pursuant to these statutes conform to the very letter of the law.

The record shows, and it is not contended otherwise by the majority, that the Administrator was premature in filing the certificate of assessment. This premature action does not follow the strict letter of the statute invoked by the Administrator. It naturally follows, therefore, that this premature action taken by the Administrator deprives that action of any force of law rendering the action nugatory and invalid upon its face, and thereby making it unworthy of taking on the “force and effect” of a judgment of the circuit court.

This being true I cannot escape the conclusion that in the absence of a judgment, Ark. Stats. § 29-509 does not obtain to a summary proceeding such as is here presented.

For the reasons stated, I respectfully dissent.


author: Jim Johnson, Associate Justice. Sam Robinson, Associate Justice Ed. F. MoFaddin, Associate Justice

text:
    Ark. State Highway Comm. v. Dean.
    5-2963
    367 S. W. 2d 107
    Opinion delivered April 22, 1963.
    [Rehearing denied May 20, 1963.]

      Dowell Anders and H. Clay Robinson, for appellant.

      David 0. Bartain, for appellee.
   Jim Johnson, Associate Justice.

This appeal involves the question of whether a land owner received notice of condemnation of part of his land for highway purposes by the County Court and was thus afforded an opportunity to seek just compensation.

In 1927 the Crawford County Court entered an order condemning a right of way for U. S. Highway No. 71 from Fine Springs south to Alma. The order condemns a right of way 35 feet wide to the right or west side of the centerline of an existing county road. In 1932 appellees R. P. Dean and wife purchased two acres of land on the west side of Highway 71, one acre from J. A. Bradley and one acre from S. M. Denniston. The county records reflect payment of compensation to Bradley, but no record of payment to Denniston for the property condemned. This action involves the land purchased from Denniston.

In 1961 the Highway Commission began reconstruction of Highway 71 and in so doing entered upon the entire 35 feet of right of way west of the centerline. In 1962 appellees filed an action for an injunction against Standard Industries, Inc., the contractor doing the reconstruction, seeking to enjoin them from trespassing on appellees’ land. Appellant, the Arkansas State Highway Commission, as the real party defendant, was permitted to intervene in the action. At trial the parties entered into the following stipulation:

(1) that a valid order of the Crawford County Court of August 10, 1927, condemns the original right of way for U. S. Highway 71 and that this order condemns a right of way of 35 feet to the right (west) of the center-line between Stations 180 and 185 which is across the property deeded to appellees by Bradley and Denniston;

(2) that the county record books reflect that Bradley was paid just compensation for condemnation of his property under the 1927 condemnation order;

(3) that although the county records show payment to a number of people pursuant to the court order, there is no record of payment to Denniston;

(4) that the question presented to the court by the stipulation was whether notice of the condemnation of 35 feet of right of way west of the centerline of U. S. Highway 71, by means of the order of the Crawford County Court dated August 10, 1927, was ever given to the owner of the land so condemned so that he was afforded an opportunity to seek just compensation for the property from the county court;

(5) that a portion of the area lying between the centerline of U. S. Highway 71 and a line 35 feet from the centerline has been used and maintained as a highway since 1927, so that even if the Court finds that the owner of the land never received notice of the taking, yet the plaintiffs (appellees) will not be entitled to an injunction to keep the Highway Commission from entering upon the whole 35 foot area; and if the court holds against the Highway Commission on the question of notice, then it will make a factual determination of the area actually used and maintained for U. S. Highway 71;

(6) that if the court holds against the Highway Commission the landowner will be permitted to seek his just compensation from the Crawford County Court for the taking of the property in question and the Highway Commission will be required to put up an open-end indemnity bond guaranteeing payment of just compensation to the plaintiffs in case the Crawford County Court is financially unable to pay the claim of the plaintiffs.

In its opinion, the trial court set out the stipulation in full, discussed the testimony of appellant’s two witnesses and exhibits, as well as appellee’s testimony, and found that the area lying between the centerline of Highway 71 and a line 17 feet west of the centerline had been condemned, but that the property lying west of that had not been condemned and is the property of appellees; the court then stated that appellees would be permanently enjoined from interfering with the construction work and that they would be permitted to seek their just compensation from the county court for the taking of the property lying between 17 and 35 feet west of the centerline of Highway 71, across the acre purchased from Denniston, and then required the Highway Commission to file a bond guaranteeing payment of just compensation to appellees in case the county court is financially unable to pay appellees’ claim. The decree was entered September 11, 1962, from which the Highway Commission has appealed.

For reversal appellant contends that the period of limitation of one year contained in the County Court Condemnation Act [Ark. Stats. § 76-917] bars any claim for just compensation for the property disputed between the parties.

The question here presented is whether such notice of the county court order of 1927 was ever given to the owner of the land condemned as would afford the owner an opportunity to seek just compensation for his property within the one-year statutory limitation.

Where, as here, there was no payment of compensation for the taking of land and no publication of notice proved, the burden is on appellant to prove that the landowner had actual notice of the taking of his land. Arkansas State Highway Commission v. Anderson, 234 Ark. 774, 354 S. W. 2d 554.

Appellant attempted to prove notice by testimony on ditching and fencing, that is that the Highway Department cut ditches 29 to 35 feet from the centerline in 1932 and had all fences moved back to 35 feet from the center-line, which were such acts of sovereignty by the Highway Department as to put the land owner on notice. Appellant’s witness, a draftsman for the Highway Department, testified that examination of old records of the Highway Department showed that the contractor was reimbursed for moving fence, but admitted that it was not possible to tell from the old records exactly what stations were involved in moving the fence; that the records simply made reference to so many rods of fence and did not indicate where they were. Appellant’s other witness, a highway engineer, testified that it was customary in 1927 to cut ditches 29 to 35 feet from the centerline, but was unable to testify about the ditch on the property here involved. On the other hand, appellee testified that some of the Bradley acre had been fenced, but that there was no fence on the Denniston acre when he purchased and moved onto that unimproved property. He further testified that there was a ditch 7 or 8 feet from the edge of the slab which he filled in in 1932. (The slab extended west 9 feet from the centerline.) To bolster appellees’ contention that no entry was made beyond 17 feet west of the centerline until the present widening of Highway 71 was commenced, he offered the description of the property deeded him which runs, “West 17 feet to a point on the north line of said forty acre tract, which point is 8 feet west of the west side of the concrete slab of Highway No. 71.”

There was some evidence taken from appellant’s exhibits which indicated the straightening of a slight curve or jog in the existing county road over which Highway 71 was constructed along the front of appellees’ property; even so, taking the evidence as a whole, we cannot say that the Chancellor’s finding that appellant failed to meet the burden of proof was against the preponderance of the evidence.

This court has consistently held that an action of the State Highway Department in improving and paving an existing road is insufficient to put adjoining property owners on notice that additional lands were being taken so as to set in motion the one year statute of limitations for the filing of claims for the taking of lands under a county court condemnation order. Bollinger v. Arkansas State Highway Comm., 229 Ark. 53, 315 S. W. 2d 889; Arkansas State Highway Comm. v. Dobbs, 232 Ark. 541, 340 S. W. 2d 283; Arkansas State Highway Comm. v. Anderson, supra. In the absence of such notice, the decree is affirmed.

McFaddin, J., concurs; Smith and Robinson, JJ., dissent.

Sam Robinson, Associate Justice

(dissenting). Denniston did not attempt to make a conveyance of any portion of the property embraced within the right of way of Highway 71. After setting out the description in the deed of the land convoyed, there is this provision: “Except from this conveyance that part of the property taken by the right of way Highway No. 71, United States Highway No. 71.”

Appellee Dean has never owned any part of the property in the right of way of Highway 71 and in these circumstances I cannot see how he is entitled to be paid for something that he does not own and has never owned.

In addition to what has been said, I think the evidence is overwhelming to the effect that Denniston, Dean’s predecessor in title, had notice of the taking of the small strip of his land for highway purposes.

On August 10, 1927, the Crawford County Court made an order condemning for the construction of Highway 71, a right of way extending 35 feet on the west side of the centerline of an existing road from Fine Springs, South to Alma, Arkansas. At that time Denniston owned one acre of unimproved land adjacent to the road and the new right of way would take about 18 feet off the east side of the Denniston acre.

The condemnation was made by the County Court and the statutes allow the owner 12 months in which to make a claim for compensation. The order of condemnation and the taking of the property is sufficient notice to the owner even though he may have received no other notice. The twelve month period in which he can make his claim begins to run from the time of the taking. Sloan v. Lawrence County, 134 Ark. 121, 203 S. W. 260, Arkansas State Highway Commission v. Dobbs, 232 Ark. 541, 340 S. W. 2d 283.

Only a few months after the order for the taking in 1927 a new road was built. The evidence is convincing that the right of way across the Denniston acre was taken at that time. Some of the plans and specifications for the road built in 1927 were introduced in evidence. These plans show clearly that there was a fence across the front of the Denniston property. The plans call for moving it back a distance of 5 feet, which would make it 35 feet from the centerline of the highway. The records of the Highway Department introduced in evidence, show a contract was made for moving the fence, and payment was made for moving it. The plans and specifications call for the cutting of a ditch at a distance of from 29 to 35 feet from the centerline of the highway, which would place it on property involved in this litigation. Dean has filled in the ditch across the acre involved since he purchased it, but claims that it was only about 17 feet from the centerline. The ditches on property both to the North and South of the acre involved were from 29 to 35 feet West of the centerline. The road built in 1927 was a Federal Aid Project, and according to government requirements the ditches had to be from 29 to 35 feet from the centerline. There is no reason why any exceptions would be made to the Denniston acre, because it was unimproved at the time.

All the circumstances indicate that Denniston was fully aware that the right of way was being extended to a distance of 35 feet from the centerline. In my opinion, there is no substantial evidence to the contrary.

For the reasons set out herein, I respectfully dissent.

Ed. F. MoFaddin, Associate Justice

(concurring). I concur in the affirmance of this decree. It is my understanding of the evidence in this case that there was a preexisting highway in front of the Denniston property before the 1927 County Court order; and the said 1927 Court order was to widen the already existing right-of-way by taking an additional strip from the landowners. I do not find any definite evidence to show that there was ever any entry by the Highway authorities on the additional strip so taken. In this situation I think the case at bar is ruled by such cases as State Highway Comm. v. Holden, 217 Ark. 466, 231 S. W. 2d 113; and Ark. State Highway Comm. v. Cook, 236 Ark. 251, 365 S. W. 2d 463 (Opinion March 11, 1963).


author: Frank Holt, Associate Justice.

text:
    Ark. State Highway Comm. v. Webster.
    5-2979
    367 S. W. 2d 233
    Opinion delivered April 22, 1963.
    [Rehearing denied May 27, 1963.]

      Dowell Anders and Thomas B. Keys, for appellant.

      Fred M. Pickens, Jr. and Wayne Boyce, for appellee.
   Frank Holt, Associate Justice.

The appellant, Arkansas State Highway Commission, brought this action in an eminent domain proceeding against Rufus Webster and Pearl Webster, appellees, for the acquisition of a fee simple title to .12 of an acre of their land for the use and purpose of widening an existing hard-surface highway. This land was part of a tract of 1.58 acres owned by the appellees. Upon a jury trial the verdict resulted in favor of the appellees and their damages were assessed in the sum of $2,250.00.

On appeal, the appellant contends that the trial court committed reversible error in admitting into evidence the landowner’s exhibit No. 3 which is a photograph. The picture represents a view of the Webster and adjoining-property before completion of the construction or widening- of the highway. It depicts the flooded condition of the newly graded ditch following a heavy rain. Mr. Webster testified that the water almost covered his driveway. There were other pictures in evidence of a different nature depicting various views of the property before and after the taking thereof which tended to aid the jury.

From the testimony surrounding the introduction of this picture we think it is clear that the jury understood, as reasonable men certainly would understand, the evidentiary value of this questioned picture when considered along with the other pictures introduced in evidence. We think the admissibility of this photograph, under the facts in this case, comes well within the sound discretion of the trial court. We have consistently said :

‘ ‘ * * * The admission, relevancy and materiality of photographs as evidence is left to the discretion of the trial judge and, unless that discretion has been abused, his ruling will not be disturbed. ’ ’

McGeorge Contracting Co. v. Mizell, 216 Ark. 509, 226 S. W. 2d 566. See, also, Lee v. Crittenden County, 216 Ark. 480, 226 S. W. 2d 79. There was no abuse of discretion by the court in the instant case in admitting this photograph into evidence. Also, it was sufficiently accurate to be of some aid and value to the jury on the issue before them. There is no proof in this case that this particular picture was misleading to the jury and, therefore, prejudicial to the appellant. Southern National Insurance Co. v. Williams, 224 Ark. 938, 277 S. W. 2d 487.

The appellant further contends that the landowner’s witness, D. L. Buffington, did not know the width of the old right-of-way and did not take into consideration the construction of the new highway in arriving at the landowner’s damages. From a review of Mr. Buffington’s testimony we think that he was sufficiently knowledgeable of those factors in determining Ms estimate of the landowner’s damages.

Next, the appellant complains that its witness, Curtis Hutchins, was not permitted to testify fully about the distance from the proposed right-of-way line to the outer limits of the construction as reflected by a sketch map. From a study of the record in this case we find that upon the introduction into evidence of this sketch map as an exhibit to Mr. Hutchins’ testimony the following occurred :

‘ ‘ Q. What are the construction limits on these particular plans?
A. The construction limits of Mr. and Mrs. Webster’s property, the construction will lack roughly from 10 to 12 foot going out to the present right-of-way line before the additional taking of the 13 feet. In other words, we will have the additional taking and another roughly 12 feet between the present right-of-way line and the construction line. ’ ’

In view of this testimony we are of the opinion that this point is not well taken.

Appellant next contends the court should have given its requested Instruction as to the measure of damages. Appellant argues that the true measure of damages, as reflected in the requested instruction, is the difference between the value of the land before the construction and the value after construction of the highway. The court instructed the jury that the measure of damages would be the difference between the fair market value of the entire tract of land before the taking and the fair market value of the remaining land after the taking for highway purposes. We have consistently approved the rule that the measure of damages is the difference between the fair market value of the affected lands before and after the taking of the landowner’s property. In Board of Directors, St. Francis Levee Dist. v. Morledge, 231 Ark. 815, 332 S. W. 2d 822, we said:

“By a long line of decisions we have established that the determination of the damage, in cases like these, is to‘ be measured by what the property was reasonably worth before the taking, and what the remainder of the property is worth after the taking.”

See, also, Pulaski County v. Horton, 224 Ark. 864, 276 S. W. 2d 706; Arkansas State Highway Comm. v. Fox, 230 Ark. 287, 322 S. W. 2d 81.

We have also said that the measure of damages is the value of the land before the construction and after the construction of a road. Herndon v. Pulaski County, 196 Ark. 284, 117 S. W. 2d 1051. In the particular case before us, we think the same result would be reached by applying either method in determining the damages. We find no prejudice to appellant’s rights by the refusal of the requested instruction.

The appellant also contends there is no substantial evidence to support the verdict of the jury. Whether there exists substantial evidence to support a jury verdict is a question of law. Arkansas State Highway Commission v. Covert, 232 Ark. 463, 338 S. W. 2d 196. The Websters, the landowners, testified that they purchased this property in 1956 for the sum of $4,950.00; that in March of 1960 they moved upon the property; that before the taking by appellant in May, 1961, they made sufficient repairs for the dwelling to be liveable and they restored an existing building adequately to conduct therein a profitable cafe and tavern business. They testified that as a result of appellant’s taking a 13 foot strip across the front of their property abutting upon the existing highway, the parking area for customers would be reduced from a space for twenty (20) cars to ten (10) cars, or a fifty per cent reduction. They testified that before the taking their property was worth $10,000.00 and after the taking, $5,000.00. Thus, they estimated their damages to be the sum of $5,000.00.

Mr. Buffington, a real estate dealer and appraiser in that locality, testified for appellees that the property was worth $8,600.00 before the taking and $6,000.00 after the taking. Consequently, the appellees had been damaged in the sum of $2,600.00. Mr. James Parish, another local realtor and appraiser, testified for appellees that before the taking he placed a value of $8,500.00 on appellees’ property and after the taking a value of $5,500.00, making a difference of $3,000.00 in the fair market value. Mr. Curtis Hutchins, a staff appraiser for the appellant, testified that before the taking he considered the property to be worth $5,600.00 and after the taking to be of the value of $5,225.00. Therefore, in his opinion the landowner’s damage would be $375.00. Mr. Wesley Adams, an appraiser for appellant, testified that the value before the taking was $6,025.00 and after the taking the value was $5,625.00. Thus, the damage to the appellees’ property was $400.00. From these several witnesses we have the variance from $5,000.00 to $375.00 as the damages to appellees’ property.

We have consistently held that in determining the sufficiency of the evidence to support a verdict we must view the evidence, with every reasonable inference arising therefrom, in a light most favorable to the appellee and if there is any substantial evidence to support the verdict rendered by the jury, the triers of the facts, we will not disturb it on an appeal. Arkansas State Highway Comm. v. Addy, 231 Ark. 381, 329 S. W. 2d 535; Arkansas State Highway Comm. v. Covert, supra.

We view the evidence in this ease to be sufficiently substantial to support the jury verdict of the award of damages. Therefore, we affirm.


text:
    Casey v. Self.
    5-2996
    367 S. W. 2d 114
    Opinion delivered April 29, 1963.

      Robert E. Irwin, for appellant.

      Parker Parker, for appellee.
   Ed. F. MoFaddin, Associate Justice.

The appellants seek to have nullified an order to punish them for contempt. The order was made by the Pope Chancery Court (Judge Wiley Bean presiding) on July 16,1962, and contained this language:

“IT IS THEREFORE BY THE COURT, ordered, adjudged, and decreed that the Defendants, Leo Casey and Ella Casey, shall comply with the decree of this Court dated 24th day of October, 1961 within 30 days of this date.
“ It is further ordered and directed that the Clerk of this Court issue a commitment to the Sheriff of Pope County to arrest said Ella Casey and Leo Casey, and hold them in the Pope County Jail subject to the further orders of this Court, should the said Leo Casey and Ella Casey fail and refuse to comply with the Decree of October 24, 1961.”

The point appellants now seek to urge is that the decree of October 24, 1961 was void and therefore they should not be required to comply with the order of July 16, 1962. The first time the appellants ever questioned the validity of the decree of October 24, 1961 was by a “Response” filed by them on June 22, 1962, which response reads:

“That the original judgment in this case entered on October 24, 1961, is void for the reason that the Act under which Honorable John G. Rye was appointed special Chancellor during the temporary absence of the duly elected Chancellor George 0. Patterson, is unconstitutional. ’ ’

Although there is no evidence of any kind in the record in this case, the appellants say in their brief in this Court:

“In September, 1961, Judge Patterson became ill and certified himself unable to perform his duties as Chancellor. On September 25, 1961, Honorable Orval E. Faubus, Governor of Arkansas, appointed Honorable John G. Rye, a member of the Pope County Bar, to serve as special chancellor. This appointment was made by virtue of Act 417 of 1941 which appears as Ark. Stat. 22-437 through 22-440. During the time the Honorable John G. Rye was serving as special chancellor, under his appointment by the governor, the evidence and testimony was transcribed and presented to Judge Rye for determination. Judge Rye rendered a decree of specific performance in favor of the plaintiff.”

In short, the appellants here insist that the decree of October 24, 1961 was void and therefore the appellants should not be required to comply with the order of July 16, 1962.

There are several answers to appellants’ insistence:

1. Whether John G. Rye was a de jure judge or a de facto judge of the Pope Chancery Court on October 24, 1961, is entirely immaterial on the present appeal. The Pope Chancery Court was a de jure court, and John G. Rye was presiding as Judge thereof when he rendered the decree of October 24, 1961. Appellants gave notice of appeal from that decree, but abandoned the appeal. So tbe decree of the Pope Chancery Court of October 24, 1961 is final. We held in Pope v. Pope, 213 Ark. 321, 210 S. W. 2d 319, that when the court was de jure and the judge presiding was merely de facto, nevertheless the judgments and decrees of the Court were valid. That case settles the validity of the decree of October 24,1961 in the case at bar.

2. Another reason why appellants cannot prevail on their argument in the present case is because the record here before us shows that on May 17, 1962, Judge Wiley Bean (whose status as a de jure judge of the Pope Chancery Court is not questioned by the appellants), while presiding over the Pope Chancery Court, reviewed the entire case on motion for citation and held that the decree of specific performance made on October 24, 1961, was in all respects valid and binding on the present appellants. An order was then entered by the Pope Chancery Court on May 17,1962, directing the appellants, present in Court at the hearing, to comply with the said order within ten days. There was no appeal from the order of May 17, 1962; and it is the refusal of the appellants to comply with that order by Judge Bean that brought about the citation for contempt here involved. In short, the order of May 17,1962 is final and binding on the appellants.

3. A third reason for holding against the appellants is the fact that they did not perfect an appeal from either the decree of October 24, 1961 or the order of May 17, 1962. Bather, the appellants elected to ignore those orders; and when brought before the Court for punishment for contempt, they sought to plead the invalidity of the previous orders. We held in Carnes v. Butt, 215 Ark. 549, 221 S. W. 2d 416, and again in Hickinbotham v. Williams, 227 Ark. 126, 296 S. W. 2d 897, that a party who violated an order of injunction could not test the validity of the original order when cited for contempt for its violation. Those cases are ruling here, and the appellants cannot resist the punishment for contempt by claiming invalidity of the orders of which they were contemptuous. The remedy of the appellants was to appeal from the orders which they considered erroneous; and they failed to prosecute such appeals.

Finding no merit in the appellants’ contentions, we afford them no relief, whether we treat this as an appeal or a certiorari proceeding.


author: Paul Ward, Associate Justice.

text:
    Bates v. Orr.
    5-3055
    367 S. W. 2d 122
    Opinion delivered April 29, 1963.

      Ponder & Lingo, by Harry L. Ponder, for appellant.

      Mehaffy, Smith & Williams, Friday & Bowen, for appellee.

      Caldwell T. Bennett and Carmack Sullivan,, Amici Curiae.

   Paul Ward, Associate Justice.

This litigation stems from the consolidation of two school districts in Sharp County. Presently set out is a summary statement of the pertinent facts involved.

On December 4, 1962 the electors of Hardy School District No. 38 and Ash Flat School District No. 4 approved (by a vote of more than four to one) the consolidation of said school districts into one district to be known as Highland School District No. 42. This proceeding was had under Act 125 of 1961, being Ark. Stats. §§ 80-446 et seq. The ballots used in both districts were identical except that the ballots for each district were designated by its appropriate name.

The ballots contained two proposals to be voted upon. One, consolidation, stating that the new consolidated school facilities would be located upon the “Moody, Pogue and Wiles property,” upon which “options have been secured”; Two, submission of a 41 mill school tax including

. (a) 25 mills for the maintenance and operation of schools; and (b) 16 mills of this tax is to be collected annually and will constitute a continuing annual levy until the payment in full of the principal and interest of a proposed bond issue of $264,125, which will run approximately 22 years and will be issued for the purpose of erecting and equipping new school buildings, making improvements and additions to existing school facilities, acquiring a site, and refunding $14,113 in outstanding school indebtedness.”

Following proper certification of the election, the directors of the two districts met and proceeded to operate as one board for the new district, as is provided in the Act. It proceeded to advertise and sell school bonds in the amount of $264,125. Delivery of the bonds was held up pending our decision on certain objections arising out of the entire, proceedings. According to appellant’s statement on appeal, the principal objection raised was that the directors of District No. 42 decided to locate the school facilities on property other than the Moody, Pogue and Wiles property. This point, along with four others, is relied on by appellant for a reversal of the trial court which approved the consolidation proceedings, the issuance of the bonds, and the substituted site for the school facilities.

The matter reaches this Court in the following manner. S. C. Bates, appellant, (representing property owners in the two districts) filed suit in chancery court against the directors of the consolidated district to force them to select the site mentioned in the ballot (Moody, Pogue and Wiles property); and also to invalidate (for reasons later discussed) the entire consolidation proceedings.

One. We find no merit in appellant’s argument that “the question on consolidation . . . was not submitted in the form designated” by Section 4 of said Act 125 of 1961. We have carefully examined the form of ballot used here and find that it is substantially in conformity with the requirements of said section. In fact both are alike as to form and it would serve no useful purpose to set them out for comparison.

In this same connection appellant especially urges that the ballot used was fatally defective because it gave the voter no opportunity to vote for consolidation and against the designated site or vice versa. We can understand how, under some circumstances an objection of this type might have merit, but not so in this case. In the first place, as shown by the ballots, the proposed site had not actually been secured. In other words, the selection of a site rested finally within the power and discretion of the directors where this Court has said it rests. See: Johnson v. Robbins, 223 Ark. 150, 264 S. W. 2d 640. As will be made apparent later, the change of sites could not have prejudiced the voters in any material way.

Also it is argued that the ballot is fatally defective because it violates Amendment No. 40 to the Constitution. This amendment, in pertinent part, provides that the directors of each district shall prepare and make public sixty days in advance of the annual school election a proposed budget and fix the rate of tax levy. It is pointed out by appellant that this could not have been done in this instance because District No. 42 was not in existence sixty days before the annual election held on December 4, 1962. We see no merit in this argument for the following reasons. Since this case is not a direct attack on the manner in which the election was held, we must assume that it was in all respects in compliance with the law and that every prerequisite was met. Therefore, we can assume the directors in the two original districts complied with the law — including Amendment No. 40. Section 7 of said act provides that the new district succeeds “to all the rights and property of the districts consolidated”, etc. Appellant does not, and cannot successfully, deny the districts had a legal right to consolidate and to vote the necessary millage to operate and construct the buildings. We know of no legal inhibition against the old districts doing in one election what they might have done in two elections. This was a regular school election, therefore the voters could have voted against consolidation and against the increased tax rate and still (under Amendment No. 40) the old rate would have been in effect in each old district.

Two. Appellant here states that “The court erred in finding that the consolidation was valid, ’ ’ relying on his argument presented under point ‘£ One ’ ’ above, which we have already rejected. It is our opinion that the procedure set out in Act 125 of 1961 was correctly followed in this case.

Three. It is next contended that the act does not authorize submitting, on the same ballot, the question of consolidation and also the question of issuing bonds based on a tax levy. In view of what we have already said we deem it unnessary to discuss this point further than to say the contention is technical and deals with form rather than substance.

Four. We find no merit in appellant’s further argument that said act is invalid because it is in violation of Amendment No. 40 to the Constitution, which provides that tax money voted by a school district shall not be used for any other purpose (than school purposes) or by any other district. As to the purpose for which the money involved here will be used, there is no question or dispute — it will be used for school purposes. Also, for all intents and purposes, the tax money in this instance was voted by and will be used in the same district — District No. 42. Also, the question here raised was decided adversely to appellant by the decision in Bonner v. Snipes, 103 Ark. 298, 147 S. W. 56.

Five. We come now to the final point and the one upon which appellant presumably relies most heavily for a reversal.

As before stated, the ballot on the consolidation proposal contained these words — “. . . with the new school plant to be located on the Moody, Pogue and Wiles property, upon which options have been secured.” It is the contention of appellant that when the majority voted affirmatively on the above ballot it, ipso facto, created a binding obligation on the directors of the new district to place the school facilities on that property and nowhere else. The logical conclusion of that contention would be that the entire project would have to fail if the designated site could not, for any reason, be secured. We are not convinced by that line of reasoning, nor do we find that any statute or court decision of this State binds or impels us to adopt it. To support appellant’s position reliance is placed on certain language found in the case of Matthews v. Rural High School District No. 5 of Johnson County, 120 Kan. 347, 242 P. 1016. The language, in effect, is that an affirmative vote on the proposition of issuing bonds to erect a school building is a sufficiently definite and valid designation of the site. Neither the facts nor the opinion in the above cited case lend any support to appellant’s argument. In that case two elections were held. One authorized consolidation and designated the “location at Spring Hill.” The next year the directors purchased twenty acres of land “in and adjoining Spring Hill, ’ ’ and paid $7,000 for it. Four years later the voters authorized bonds to erect a school house “on the land owned by the district adjoining the city of Spring Hill.” After the directors had started construction on that site, Matthews (as a taxpayer) tried to enjoin construction on that particular site. The trial court merely refused the injunction, and the Supreme Court properly affirmed. The issue presented here was not raised or discussed in the cited case.

We have concluded the trial court was fully justified in approving the site (other than the one designated) upon which to erect school facilities. The situation and facts supporting that conclusion are, in essence, as follows: (a) The directors were unable (because one of the landowners declined to honor his agreement) to secure the designated site; (b) The optioned site would have cost around $6,000; (c) The new site was donated to the district, and was suitable for all purposes; and, (d) The new site was adjacent to the designated site and both sites abut U. S. Highway No. 62.

Under the above set of facts we cannot believe that any elector, who voted for consolidation because of the designated site, would have voted against consolidation had he known the change would be made in site locations. In other words, we think the difference between the sites was too insignificant to affect the electors’ vote, or to justify a reversal.

Affirmed.