text:
    Nylan W. COLEMAN et ux v. Nolan B. YOUNG
    74-55
    510 S.W. 2d 877
    Opinion delivered July 17, 1974
    [Rehearing denied July 22, 1974.]

      Frierson & Walker, by: Gary E. Johnston, for appellants.

      Hale, Fogleman & Rogers, for appellee.
   Lyle Brown, Justice.

Appellants’ tort action was dismissed on the theory that it was barred by the three year statute of limitations, Ark. Stat. Ann. § 37-206 (Repl. 1962). Appellants had first filed suit in federal district court, took a nonsuit and refiled in state court. Appellants contend they had a right to refile within one year from the dismissal of the federal court action, relying on the “saving statute” incorporated in Ark. Stat. Ann. § 37-222 (Repl. 1962).

The suit arose from an automobile collision which occurred in Crittenden County on December 10, 1969. Suit was filed in federal district court in Arkansas on December 5, 1972, based on alleged diversity of citizenship. On the day suit was filed summons was placed in the hands of the United States Marshal. The summons called for service by certified mail on the defendant at an address in West Point, Mississippi.

A motion to dismiss for want of diversity of citizenship was filed by defendant-appellee. From the pleadings and un-controverted affidavits it appears certain appellee was at the time of the collision a resident of Mississippi; however, he moved to Blytheville, Arkansas, and had been living there for more than a year at the time the suit was filed in federal court. In that situation the plaintiff-appellant moved for and was granted a dismissal without prejudice on March 12, 1973. Then on April 5, 1973, the action was refiled in the Circuit Court of Crittenden County, and service of summons was had the same month.

The defendant-appellee moved for dismissal on the theory the action was barred by the three year statute of limitations, § 37-206 supra. Appellee successfully advanced in the trial court a two-fold theory to support his motion for dismissal. First, he argued that since there was no diversity of citizenship at the time the suit was filed in federal court, the filing thereof did not toll the statute. He deduces that no suit was legally commenced because the complaint was not filed in the office of the clerk of the proper court, citing Ark. Stat. Ann. § 27-301 (Repl. 1962). That section provides that “A civil action is commenced by filing in the office of the clerk of the proper court a complaint and causing a summons of the proper county or counties”. Second, he argues that summons was not placed in the hands of the proper officer as required by § 27-301. He points out that summons was given to the United States Marshal, that officer having no legal authority to perfect service because appellee was not a resident of Mississippi.

Appellee concedes we have cases which “seem to stand for the proposition that actions dismissed for lack of jurisdiction of the subject matter can be refiled within the period of the saving statute”. We conclude that those cases are in fact controlling here and that appellee cannot prevail.

The “saving statute” with which we are concerned provides, among other things, that after commencing an action the plaintiff can take a nonsuit and commence a new action within one year after the nonsuit. Sec. 37-222 supra. This court was faced with the same problem as is now before us in the early case of L.R., M.R. & T. Ry. v. Manees, 49 Ark. 248, 4 S.W. 778 (1887). In that case the original judgment was rendered by a court which had no jurisdiction over the action. It was held that the suit could be refiled within the one year limitation period even though it was after the expiration of the regular time for filing the suit. Manees has been cited with approval in K.C. So. Ry. Co. v. Akin, 138 Ark. 10, 210 S.W. 350 (1919); Norm Company v. Harris, 197 Ark. 124, 122 S.W. 2d 532 (1938); and Casey v. Burdine, 214 Ark. 680, 217 S.W. 2d 613 (1949). Manees points out that the statute should be given a liberal and equitable construction to secure that class of litigants who, “from causes incident to the administration of the law, are compelled to abandon their present action, whether by their own act or the act of the court, when either would leave them a cause of action yet undetermined, by giving them a reasonable time in which to renew such action”.

Reversed and remanded.

FOGLEMAN, J., not participating.


source: Caselaw Access Project

author: John A. Fogleman, Justice.

license: Public Domain

text:
    CITY of MULBERRY v. Amond EDWARDS et ux
    74-33
    510 S.W. 2d 286
    Opinion delivered June 17, 1974

      Jeta Taylor (deceased) and Ralph W. Robinson, for appellant.

      N. D. Edwards and Lonnie Batchelor, for appellees.
   John A. Fogleman, Justice.

Appellant attacks a jury verdict awarding appellees $13,000 as just compensation for the taking of 42.3 acres of land out of a tract of 140 acres, for creation of a lake for the water supply of Mulberry, as excessive and without substantial evidentiary support. We affirm.

Robert Geliy, who had lived in Crawford County all of his 58 years, had been a real estate broker and appraiser for 18 years. His qualifications as an expert on real estate values were enumerated. No objection was made to his qualification as an expert. He appraised the Edwards property, after having made a study of land values in the area. He valued the entire Edwards tract at $45,500 on the date of taking, and at $29,460 after the taking. He did not consider improvements in his evaluation, because he did not feel that they were affected by the taking in any way. No objection was offered to his stating his opinion as to these values.

Appellant first says that Geliy’s testimony was not substantial because he did not refer to a comparable sale. Having qualified as an expert, he was not required to do so on direct examination. Arkansas State Highway Commission v. Southern Development Corporation, 250 Ark. 1016, 469 S.W. 2d 102. The burden of showing that he had no reasonable basis for his opinion rested upon appellant. Arkansas Louisiana Gas Co. v. McGaughey Bros., Inc., 250 Ark. 1083, 468 S.W. 2d 754. Obviously, he was not asked on cross-examination about comparable sales, so his testimony cannot be said to lack substan-tiality on this account. Arkansas Louisiana Gas Co. v. McGaughey Bros., Inc., supra.

Appellant’s whole argument as to this witness rests almost entirely upon the misconception that somehow the burden rested upon appellees, after qualifying the witness as an expert, to show that he had a fair and reasonable basis for his opinion, apparently by having him describe what he took to be comparable sales. Appellant also contends, however, that this witness placed a value of $350 per acre on the Edwards land on the basis of the sale of an adjoining tract at $62.50 per acre. But appellant’s premise is unfounded. Geliy was asked about this sale only on cross-examination. He said he did not consider this to be a comparable sale. Mac Bolding, another expert witness called by appellees, when asked about the sale, said that “somebody stole that man’s land” because of ignorance about values, or that the land was given away. Strangely enough, appellant’s expert considered this sale comparable, but stated that it did not have the supporting characteristics that he liked, that the purchaser seemed reluctant to talk about its value and that he was uncertain whether the road providing access to the property was public or private. Consequently, he did not rely on this sale as much as he did others indicating higher values.

While there were other witnesses whose testimony tended to support the verdict, the testimony of Geliy was not shown to be insubstantial. Since the difference in value before and after the taking was $16,040, according to his testimony, we cannot say the verdict was excessive. The judgment is affirmed.


author: J. FRED Jones, Justice.

text:
    Rufus EDMONDSON, d/b/a RUFUS EDMONDSON MOTORS v. Daniel A. HARRIS, by his father, Wayne HARRIS
    74-24
    510 S.W. 2d 290
    Opinion delivered June 17, 1974

      Laser, Sharp, Haley, Young & Boswell, P.A., for appellant.

      Joe Purcell, for appellee.
   J. FRED Jones, Justice.

Rufus Edmondson owned a Honda motorcycle agency in Benton, Arkansas, and was in the business of selling and repairing motorcycles. Wayne Harris had purchased a Honda motorcycle from Edmondson and returned it to Edmondson for repairs. The motorcycle was stolen from Edmondson’s locked building during a burglary over the weekend. Harris sued Edmondson for the value of the motorcycle, the case was tried by the circuit judge sitting as a jury and judgment was rendered for Harris in the amount of SI,580.

On appeal to this court Edmondson contends that there was no substantial evidence to support the judgment of the trial court, but we are of the opinion there"was.

The facts appear to be as follows: On March 30, 1973, Harris delivered a 1972 Honda motorcycle to Edmondson’s place of business for repairs. Edmondson kept the motorcycle-over the weekend and locked it inside his building along with other new and used vehicles. Edmondson left the ignition key in the switch on the motorcycle and during the weekend his place was burglarized and the motorcycle, which weighed about 700 pounds, was stolen. The evidence indicated that a window was broken to gain entry to the building; that a door was then unlocked from the inside and the motorcycle rolled from the building.

It is quite true, as pointed out by the appellant, that some state courts have held the mere leaving of an ignition key in a vehicle inside a locked garage is not such evidence of negligence as should be considered by a jury, but in the case at bar the one motorcycle key was designed for and served two purposes. One was for the regular ignition switch and the other was to lock the front wheel of the vehicle in a turned position where it could only be pushed or ridden in a circle.

Mr. Edmondson testified that the front fork on the motorcycle had been extended and unless the lock had been reinstated it could not have been locked. He said he did not examine the motorcycle and does not know whether the motorcycle could be locked.

Mr. Harris testified that when the key was removed from the Honda, it remained in a locked position with the front wheel at an angle. He said that had the key been removed from the switch, it would have been impossible to roll or ride the Honda from the premises, and that it would have taken six or seven men to remove it from the premises.

We are of the opinion that when the evidence is viewed in the light most favorable to the trial court’s finding, there was substantial evidence to sustain the judgment of the trial court, and that the judgment must be affirmed.

Affirmed.


author: J. Fred Jones, Justice.

text:
    ARKANSAS STATE HIGHWAY COMMISSION v. Martha O. BLAKNEY
    74-59
    510 S.W. 2d 267
    Opinion delivered June 17, 1974

      Thomas B. Keys and George 0. Green, for appellant.

      Catlett & Henderson, for appellee.
   J. Fred Jones, Justice.

This is a condemnation case involving the widening of Shackleford Road between Markham Street and Kanis Road in western Little Rock in connection with the construction of Interstate 430.

The appellee Martha O. Blakney owned a rectangular plot of land at the northeast corner of the intersection of Shackleford and Kanis Roads. The south end of her property fronted 325 feet on Kanis Road and the west side fronted 983 feet on Shackleford Road. The north end of the property along Shackleford Road was approximately 43 feet higher in elevation than was the south end along Kanis Road, but the property was easily accessible from both Shackleford and Kanis Roads at any point.

The Highway Commission took a strip 40 feet wide and 325 feet long of the front of the property along Kanis Road, and a strip 983 feet long varying in width from 60 to 175 feet along Shackleford Road. The Commission changed the grade of Shackleford Road to near level, thus lowering the roadbed approximately 43 feet along the north portion of Mrs. Blakney’s property and making that portion of her property practically inaccessible from Shackleford Road.

Mrs. Blakney’s tract consisted of 6.67 acres outside of rights-of-way prior to the taking, and the land actually taken amounted to 2.41 acres. Upon declaration of taking and order of possession, the Commission paid $20,500 into the registry of the court as just compensation. Mr. W. R. Meeks, Jr. testified as an expert in behalf of Mrs. Blakney. He said that her property had been damaged in the sum of $69,500. Mr. C. V. Barnes, an expert called by Mrs. Blakney, testified that in his opinion the damage amounted to $74,000. Mr. Walker Watson testified as an expert for the Highway Commission and testified to damage in the amount of $3,850. The jury returned a verdict upon which judgment was entered for $60,000 and on appeal to this court the Highway Commission contends that the trial court erred in failing to strike the value testimony of appellee’s expert witnesses on the grounds that the comparable sales relied on by the witnesses were too remote and not in a comparable economic use area. We do not agree with this contention.

Both Meeks and Barnes testified as to several comparable sales in the area. The ones complained of by the Commission consisted of one sale of 10.55 acres at the intersection of Kanis and Barrow Roads for $217,450. Another sale of 9.975 acres at the same intersection brought $160,000. Barrow and Shackleford Roads, where they intersect with Kanis Road, are comparable locations except that Barrow Road is closer to downtown Little Rock than is Shackleford Road. Shackleford Road is considerably longer than Barrow Road and was described by witness Barnes as the next University Avenue. University Avenue is Little Rock’s most westerly, and one of its busiest, north-south thoroughfares. Mr. Meeks testified as to a number of sales in the immediate vicinity of the Blakney property. One such sale was immediately across Kanis Road from the Blakney property and the sale price was $43,560 per acre. Another sale was only seven and one-half blocks from the Blakney property and the sale price was $43,500 per acre. Both Meeks and Barnes testified that the prior sales they used in arriving at the fair market value of the Blakney property were comparable in size, location and use to the Blakney property, and there is no substantial evidence to the contrary.

The judgment is affirmed.


author: CONLEY Byrd, Justice.

text:
    Robert E. GRAY Sr. v. W. D. GADDY et al
    74-47
    510 S.W. 2d 269
    Opinion delivered June 17, 1974

      Smith, Williams, Friday, Eldredge & Clark, by: Michael G. Thompson, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Lonnie A. Powers, Dep. Atty. Gen., for appellees and cross-appellants.
   CONLEY Byrd, Justice.

In a taxpayer’s action by appellant Robert E. Gray, Sr., for a declaratory judgment, the trial court held invalid sections 3 and 6(d) and portions of sections 8 and 13 of Act 452 of 1973, on the basis that they conflicted with Article 19, § 15 of the Constitution of Arkansas. For reversal of the actions of the trial court in upholding the provisions of Act 452 which empowers the State Printing Specifications Review Committee to prepare specifications and approve all awards of state printing contracts, appellant Robert E. Gray, Sr. brings this appeal. The appellees, W. D. Gaddy, Robert Young and Gerald Fitzgerald, individually and as members of the State Printing Specifications Review Committee cross appeal with respect to sections 3, 6(d), and 13 of Act 452.

Act 452 of 1973, is an attempt by the General Assembly to clarify the powers and duties of the various State Officers and Committees who execute the laws governing the purchase of printing, stationery and other materials as required by Act 19, § 15 of the Constitution of Arkansas. Section 3 of the Act provides:

“SECTION 3. As used in this Act and in Section 15 of Article 19 of the Constitution of the State of Arkansas the following definitions shall apply:
(a). PRINTING. Printing shall mean: (1) Any item requiring raised or engraved lettering; (2) Materials with lettering thereon which because of their nature can only be prepared on a professional printing press accepting paper sheets larger than 11x17 inches utilizing highly skilled technicians; (3) Items with lettering thereon which are required in such exceptionally large quantities that their preparation can be more economically accomplished by traditional large scale, professional printing methods than by reproduction equipment as defined in Act 100 of 1967.
(b) STATIONERY. Stationery shall mean letterheads and envelopes utilizing raised or engraved lettering or letterheads and envelopes which meet the definition of printing as defined in (2) and (3) of subsection (a) above.”

That portion of Section 6 of the Act that is here involved provides:

“The State Printing Specifications Review Committee shall have the following powers and duties:
(a) . . .
(d) To remove trom future printing contracts any items now covered by such contracts which are not printing or stationery as defined in this Act. The procurement of any such items removed from the printing contracts now in force shall thereafter be governed by the provisions of the State Purchasing Law, Act 313 of 1955 as amended, or, in the case of items suitable for reproduction, by the provisions of Act 100 of 1967 and Section 14 of Act 585 of 1971, as amended.”

Section 13 of the Act provides:

“SECTION 13. Section 3 of Act 100 of 1967 is hereby amended to read as follows:
‘Nothing in this Act shall in any way prohibit any institution of higher learning of this State, any vocational-technical school or any other education or correctional institution from owning and operating duplicating or printing equipment primarily used in the educational or training program of the institution; and nothing in this Act nor in Section 15 of Article 19 of the Constitution of the State of Arkansas shall be interpreted to prevent such educational-correctional institutions from bidding on any printing contract covering the printing needs of said educational or correctional institution where the accomplishment of such printing jobs could reasonably be performed as a normal part of the training of students in the use of such printing equipment; nor shall this Act be construed to prohibit the State Highway Department or other agencies from using duplicating or printing equipment, acquired primarily for use in the internal operations of the agency or in furnishing reports and data of limited quantity to the Federal government or agencies thereof where the same are required in cooperative or aid programs.”

Article 19, § 15 of the Constitution of Arkansas provides:

“§ 15. Contracts for stationery, printing and other supplies — Personal interest in contracts prohibited. — All stationery, printing, paper, fi el, for the use of the General Assembly and other departments of government, shall be furnished and the printing, binding and distributing of the laws, journals, department reports and all other printing and binding, and the repairing and furnishing the halls and rooms used for the meetings of the General Assembly and its committees, shall be performed under contract to be given to the lowest responsible bidder, below such maximum price and under such regulations as shall be prescribed by law. No member or officer of any department of the government shall in any way be interested in such contracts, and all such contracts shall be subject to the approval of the Governor, Auditor and Treasurer.”

We have construed the foregoing provision of the Constitution to hold invalid an Act of the General Assembly that authorized the Governor to participate either directly or indirectly in the negotiating and letting of state printing contracts. See Ellison v. Oliver, 147 Ark. 252, 227 S.W. 586 (1921) and Muncrief v. Hall, Secretary of State, 222 Ark. 570, 262 S.W. 2d 92 (1953). However, in Kegeles v. Ambort, 243 Ark. 994, 423 S.W. 2d 875 (1968), we held that the State Printing Specifications Review Committee established pursuant to Act 441 of 1967, did not conflict with Article 19, § 15, supra.

Appellant in contending that Kegeles v. Ambort, supra, is not here controlling, points out that since the passage of Act 38 of 1971, the people who appoint the people who serve on the State Printing Specifications Review Committee serve at the will and pleasure of the Governor. Appellant also points out that the committee is given greater powers than it had under the 1967 Act involved in the Kegeles case, supra. As we view Act 452, here involved, it does not conflict with Article 19, § 15 as construed in Ellison v. Oliver, supra, and Muncrief v. Hall, Secretary of State, supra. In Ellison v. Oliver, supra, the Governor, Auditor and Secretary of State constituted a committee to negotiate and let printing contracts. In Muncrief v. Hall, Secretary of State, supra, the power to negotiate and let state printing contracts was conferred upon the Director of Finance, who served by the appointment of and at the will of the Governor. Under the Act here involved, the Secretary of State and the State printing Clerk are ex-officio members of the State Printing Specifications Review Committee. In addition after the specifications are drawn by the committee, the contracts are turned over to the Secretary of State for the purpose of advertising for bids. The Secretary of State initially determines who is the lowest responsible bidder and who should be awarded the contract. Before the contract is submitted to the Governor, the Auditor and State Treasurer for approval, the Act requires an approval of the award by the Committee. Under the circumstances we do not believe that the negotiation and the letting of State Printing contracts under Act 452, supra, come within the maxim involved in Muncrief v. Hall, Secretary of State, supra, that “What I cannot do myself, I cannot do through another.” Neither do we find any merit in the contention that the provision requiring the Committee’s approval of the contracts awards is violative of Arti-ele 19, § 15, supra. The Constitution only sets the minimum approval that is required to bind the State on a printing contract. It does not prohibit more stringent standards.

Appellees, to reverse the trial court in holding Sections 3 and 6 (d) of Act 452, supra, invalid, point to our decision in Parkin v. Day, 250 Ark. 15, 463 S.W. 2d 656 (1971), and contend that it is permissible for the Legislature to interpret ambiguous constitutional language as to what may constitute printing, stationery, etc. In the first place it appears to us that perhaps the committee and those responsible for the drafting of Act 452 of 1973 may have misinterpreted our decision in Parkin v. Day, supra, to permit the State to go into the printing business. Such was not the purpose of our decision there. That decision only recognized that Article 19, § 15 did not prohibit State Agencies from using the same type of modern office duplicating machinery that is customarily used in business establishments generally. In the next place appellees’ contention with respect to Sections 3 and 6 (d) of the Act ignores the requirements of Article 19, § 15, supra, that “All stationery, printing, paper, fuel . . . All other printing and binding . . . shall be performed under contract to be given to the lowest responsible bidder Consequently, we agree with the trial court that Sections 3 and 6 (d) are invalid.

Appellees do not here contend that the trial court was in error in holding invalid those portions of Section 13 of Act 452, supra, that would have permitted state educational or correctional institutions to bid on state printing contracts but do contend that the trial court erred in holding invalid that portion of Section 13 which permits educational or correctional institutions to own and operate duplicating or printing equipment used in educational or training programs. Since we do not interpret the trial court’s decree as prohibiting such institutions from owning and operating such equipment for educational or training purposes, we find no merit in the contention.

Affirmed.


author: Conley Byrd, Justice.

text:
    Darrell SHARP v. GREAT SOUTHERN COACHES, INC
    74-63
    510 S.W. 2d 266
    Opinion delivered June 17, 1974

      Troy L. Henry, for appellant.

      Barrett, Wheatley, Smith & Deacon by: John V. Phelps, for appellee.
   Conley Byrd, Justice.

Appellant Darrell Sharp, the owner and driver of a gravel truck involved in a collision with a vehicle owned and operated by appellee Great Southern Coaches, Inc., brought this action to recover damages for loss of use during the time the vehicle was being repaired. Appellee admitted that the collision was occasioned by negligence chargeable to it. The trial court found that appellant had sustained damages for loss of use of his vehicle in the amount of $1,800, but denied recovery on the theory that loss of use of a vehicle is not a compensable element of damages in Arkansas.

The record shows that the dump truck was essential to appellant’s business and that as a result of the collision he missed the use of the truck for 26 working days while it was in the shop for repair. Appellant testified he had a net income from the use of the truck in the amount of $1,950, the month before the collision and in the amount of $2,542, for the month after the repairs. His estimate of the amount he would have made during the time lost for repairs was $1,800. The only objection by appellee was as follows:

. .The defendant objects to testimony being offered on the element of loss of use of the vehicle in question on the grounds that it is not properly an element of damage to be considered by the court.”

Damages for loss of use of a vehicle have recently been before this court. See Higgins v. Elliott’s Feed, Seed & Fertilizer Co., 248 Ark. 450, 451 S.W. 2d 884 (1970) and Jones v. Herrin, 252 Ark. 837, 481 S.W. 2d 362 (1972). In the Higgins case, supra, we denied a recovery for profits because they were too speculative. In the Jones case, supra, we also had a problem with the sufficiency of the proof and in holding that the trial court there properly followed our prior decisions, we quoted Restatement of Torts § 928 and pointed out that there was some merit in Jones’ contention that our previous cases denying recovery for loss of use should be overruled. The concurring justices thought the statement of “some merit” in the Jones case, supra, was an insufficient caveat and that we should have given notice that we would re-examine the issue anew. It was there pointed out that Arkansas was the only state that denied a recovery for loss of use of a vehicle.

Appellant Sharp in contending that we should overrule our prior cases refers us to Article II, § 13 of the Constitution of Arkansas which provides:

“Every person is entitled to a certain remedy in the laws for all injuries or wrongs he may receive in his person, property or character. ...”

We note that we ordinarily recognize loss of use as an element of damages where the detention of other types of property is involved, McDaniel v. Crabtree, 21 Ark. 431 (1860) and Continental Gin Co. v. Clement, 176 Ark. 864, 4 S.W. 2d 901 (1928). When our prior decisions with reference to the compensability of loss of use of a vehicle are considered along with the criticism that has been leveled at them, Jones v. Herrin, supra, together with the inconsistent position we have taken when loss of use of other property is involved, we find that our former decisions with reference to the compensability for loss of use of a vehicle were somewhat arbitrary and should be overruled when only a partial destruction is involved. In so far as a business vehicle is concerned Madison-Smith Cadillac Co. v. Smith, 181 Ark. 715, 27 S.W. 2d 524 (1930) and Kane v. Carper-Dover Mercantile Co, 206 Ark. 674, 177 S.W. 2d 41 (1944), are overruled. Consequently, it follows that appellant is entitled to judgment for the loss of use of his vehicle in the amount of SI,800.

Appellee for the first time on appeal contends that loss of profits cannot be included in an element of damages for loss of use. We disagree for two reasons. In the first place such an issue cannot be raised for the first time on appeal. In the second place, C. McCormick, Damages § 124 recognizes the following criteria for determination of the value of use:

1. The rental value or the amount which could have been realized by renting out the article during the period;
2. The cost of hiring a substitute; and
3. The ordinary profits that could have been made from the use of the vehicle.

Reversed and remanded with directions to enter a judgment in the amount of SI,800.


author: Frank Holt, Justice.

text:
    Obrie Eugene WHITE v. STATE of Arkansas
    CR 74-20
    510 S.W. 2d 285
    Opinion delivered June 17, 1974

      John W. Parkerson, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Alston Jennings Jr., Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

Appellant was convicted of robbery, as a multiple offender, by a jury and his punishment assessed at 21 years in the Department of Correction. For reversal appellant first contends through present court appointed counsel that the court erred in permitting the state to adduce testimony which tended to indicate that the appellant had committed other crimes or showed criminal misbehavior independent of the alleged offense for which he was being tried. We cannot agree;

Appellant correctly contends that evidence of other crimes by the accused cannot be used to prove the alleged offense at issue if not relevant to show intent. Alford v. State, 223 Ark. 330, 266 S.W. 2d 804 (1954). Neither is evidence admissible to show the accused’s bad character unless the defendant has put his character in issue. Ware v. State, 91 Ark. 555, 121 S.W. 927 (1909). We do not find these cases applicable in the case at bar. Here the appellant’s confederate, who was serving a nine-year sentence on a plea of guilty to the same robbery charge, was called by the state as a witness. However, he testified that he actually committed the armed robbery and that appellant, his friend of several years, was an unwitting accomplice. It clearly appears, on cross-examination, that this witness was trying to take the blame and shield the appellant. He also denied that appellant was to share in the proceeds of the robbery. On re-direct the state pursued the inquiry by asking the witness if he had not on previous occasions shared funds with the appellant whenever he, the witness, “made a score of any kind.” The witness replied that he had never done anything before with the appellant. He was also permitted to be questioned as to whether he had previously taken “a fall” thereby exonerating appellant of possessing a stolen shotgun. The witness answered that he had exonerated appellant by “telling the truth.”

We perceive no prejudice to appellant. Also, in view of the witness’s evasive and inconsistent statements which obviously were designed to cast blame upon himself for the armed robbery and exonerate appellant, we think the state properly was permitted to make these inquiries as bearing on the witness’s credibility.

Appellant also contends that there was no substantial evidence to support the verdict and, therefore, the trial court erred in not granting his motion for a directed verdict. The trial court properly overruled appellant’s motion. The victim of the armed robbery identified the appellant as being present with the other participant during the robbery. Appellant attracted the victim’s attention by making ¿^purchase of some wine and cigarettes. When the store employee opened the cash register, appellant’s companion, the state’s witness, robbed him of $100 at gunpoint. The state’s witness finally admitted that he had furnished the appellant with sufficient money for the purpose of making the purchase and that appellant had knowingly aided and abetted in the robbery.

Affirmed.


text:
    Johnny KING Jr. v. STATE of Arkansas
    CR 74-32
    510 S.W. 2d 876
    Opinion delivered June 17, 1974
    [Rehearing denied July 22, 1974.]

      Kenneth C. Coffelt, for appellant.

      Jim Guy Tucker, Atty. Gen., by: O.H. Hargraves, Dep. Atty. Gen., for appellee.
   Frank Holt, Justice.

Appellant was convicted by a jury of burglary and a three year sentence in the Department of Correction was assessed. For reversal of that judgment appellant contends that the evidence was insufficient to establish intent to commit larceny as charged in the information. We cannot agree.

A burglary is committed whenever anyone unlawfully breaks or enters a building “with the intent to commit .... larceny.” Ark. Stat. Ann. § 41-1001 (Repl. 1964). The appellant was found by the police lying on the floor in a local junior high school. They had responded to an alarm system installed at the school and arrived within approximately four minutes. A glass window next to the entrance door was broken sufficiently to permit entry into the building. Inside the building was a jack handle which belonged to the appellant. A padlock and chain were broken off the gymnasium door leading into the football area and that door was physical education equipment in the gymnasium. No property was missing from the building.

It is not necessary that the intent to commit burglary be consummated in order to constitute that offense. Clay v. State, 236 Ark. 398, 366 S.W. 2d 299 (1963). There we reiterated the well established rule that the offense can be established by proof of circumstances from which the intent to commit larceny can fairly be inferred. To the same effect is Scates and Blaylock v. State, 244 Ark. 333, 424 S.W. 2d 876 (1968), where we found the evidence sufficient to constitute the crime of burglary when one of the appellants was found hiding in a cafe restroom with a tire tool on the floor near him and the other appellant was secreted in the kitchen. The evidence indicated entrance through a broken window. Nothing was found missing. § 41-1002 provides that the manner of breaking is material to show the intent of the offender.

In the case at bar appellant testified about the circumstances of his presence in the building. According to him he was forced at gun point to break into the building by an unidentified individual. He acknowledged the jack handle was his and that the police arrived within five minutes from the time the breaking occurred.

When we view the evidence in the light most favorable to the appellee, as we must do on appeal, we are of the view that ample substantial evidence exists to sustain the jury’s finding. The credibility of appellant’s version was for the jury to determine.

Affirmed.


author: CARLETON HARRIS, Chief Justice.

text:
    Ruth Butler LINDSEY v. ARKANSAS CEMENT Company, Employer and UNITED STATES FIDELITY AND GUARANTY Company, Insurance Carrier
    74-72
    510 S.W. 2d 552
    Opinion delivered June 24, 1974
    Harness, Friedman & Kusin, for appellant.

      Tackett, Moore, Dowd & Harrelson, for appellees.
   CARLETON HARRIS, Chief Justice.

This is a workmen’s compensation case, arising out of a fall by claimant, Ruth Butler Lindsey, appellant herein, while she was employed by Arkansas Cement Company, appellant contending that she suffered certain injuries as a result of the fall. The referee held the claim compensable, but on appeal to the full commission, that tribunal, though finding that claimant suffered a fall while in the course of her employment, also found that her subsequent complaints were not causally related to the fall of August 18, 1971. The claim was denied, and on appeal to the Little River County Circuit Court, the order of the commission denying and dismissing the claim was affirmed. From the judgment entered by the circuit court, appellant brings this appeal. For reversal, it is urged that there was no substantial evidence to support the findings of the commission, and it is insisted that a preponderance of the evidence, reasonable doubts being resolved in favor of the claimant, necessitated an award in favor of claimant.

There is no dispute but that Mrs. Lindsey, employed in the billing department of the company, fell on August 18 while she was engaged in her duties at the cement company. She testified that her supervisor buzzed for her to come to his office and get a rubber stamp; that she “is always in a rush”, and she hurriedly went around the corner to get to her desk and hit a plug in the floor, started slinging her hands to prevent falling, and fell on her back. Two other employees witnessed the fall, but their versions were quite a bit different from that of claimant. Cathey Lisenby, who typed invoices, worked in the office with Mrs. Lindsey, and she described the fall as a “slow fall” and not at all “hard”. She said that Mrs. Lindsey’s right arm landed on her (Mrs. Lisenby’s) leg and that the only part of claimant’s body which touched the floor was her buttocks. Mrs. Lisenby testified that claimant’s shoulder did not hit the floor or “anything else.” Bill Pullen, an assistant office supervisor, said that when he looked from his desk, he saw Mrs. Lindsey sitting on the floor with her hands in her lap; that she stated she was not hurt, picked up her papers, and went back to the supervisor’s office.

Mrs. Lindsey continued to work, but on September 9, she took her husband, who had the flu, to Dr. Richard B. Dickenson, a physician of DeQueen, and at the time, complained that her shoulder and hand hurt. Dickenson found that she was suffering from bursitis, gave her a shot, and stated that she made no complaint to him of having received an injury. He did not see her again. About a week later, she went to see Dr. Barry Green, an orthopedic surgeon of Tex-arkana, Texas, who diagnosed her problems as subdeltoid bursitis and carpal tunnel syndrome. She gave no history to Dr. Green at the time of having suffered any injury. Dr. Green testified that there is no specific cause for bursitis; that “people can just develop bursitis.” He also said that a numbness she complained of in her right hand and wrist could not have been caused by any disability suffered in her right shoulder. In referring to the wrist, he mentioned that she was a typist and that he had treated patients with the same syndrome who were typists (though he had treated many who were not typists) but the “constant flexion extension of the wnst in the typing process can cause it.”_

Claimant testified that she went to Dallas on October 6 to see Dr. Thomas Caldwell, a nerve specialist, because Dr. Green suggested that she should have the condition of her nerves checked. Dr. Greene saw Mrs. Lindsey on several occasions between the first visit on September 16 and when he performed an operation for the carpal tunnel condition on November 10, 1971. Thereafter, he saw her on several occasions through 1971, and suggested that she go to Dr. Warren Long in Shreveport. In early January, she went to Dr. Long, returned to Little Rock, and thereafter, around February 11, 1972, Dr. Greene found that she had a condition known as “causalgia.”

On March 10, 1972, Mrs. Lindsey went to Dr. Harold Chakales of Little Rock, who placed her in the hospital for tests. These tests revealed the condition of causalgia. Dr. Chakales also stated:

“During this hospitalization I also checked out her brain, we did echo-encephalogram, which was normal, checked out her heart, skull films were normal, x-ray of the cervical spine did show some slight straightening of the cervical lordosis, compatible with symptomatic arthritis of the neck.
“We also felt that Mrs. Lindsey was an extremely nervous patient and she borders on psychoneurosis, and that this condition had gotten to the point that it was really about to get her down. ***
“She was subsequently admitted to St. Vincent’s Infirmary by Doctor John Baber and Doctor William Hayden, who had Doctor Harold Hawley, Psychiatrist, evaluate her, before they even considered operating on her, and they concurred that a sympathectomy would be indicated. A significant fact was the fact that during the hospitalization at Memorial, we had the Anesthesiologist, Doctor Weare, perform a stellate ganglion block, with local anesthetic, stick a needle in the stellate ganglion — and she had marked relief, she had a lot of relief from her pain and this is why I recommended a stellate ganglionectomy and Doctors Baber arid Hayden subsequently operated on her.”

Dr. Greene testified that one could only speculate as to the cause of claimant’s ailments, though Dr. Chakales, after being asked about the various complaints, viz- bursitis and pain in the right forearm, right wrist, neck, back and lower extremities, stated:

“I will put it like this, from the history that the patient gives me, if what she tells me is the truth and it is substantiated that she did fall and hurt her shoulder, then I would say that the traumatic episode was the precipitating cause and what we are seeing is a long drawn out course.”

Of course, the finding of the commission, after reviewing the testimony of claimant and those who witnessed the fall, as well as the testimony of all physicians, was that there was no causal relationship between such fall and the complaints that she subsequently made, and the commission opinion mentions that she did not give a history of a fall to any physician until she was observed by Dr. Long in Shreveport, Louisiana, on January 6, 1972. This, of course, would be about four and one-half months after the fall, and it is, to say the least, unusual, that she did not mention this alleged accident to doctors she consulted, particularly since she testified that she started hurting the next day after the fall, and the record reflects that she had contacted several doctors before seeing Long. In Wilson v. United Auto Workers, 246 Ark. 1158, 441 S.W. 2d 475, this court said:

“In considering this case, it is necessary that we keep in mind basic fundamentals concerning review of workmen’s compensation cases. The burden was on the claimant to show that the injury arose in the course of the employment and grew out of or resulted from the employment. American Casualty Co. v. Jones, 224 Ark. 731, 276 S.W. 2d 41. The findings of the Workmen’s Compensation Commission have the same binding force, effect and verity as the verdict of a jury and are treated in this court in the same manner as a jury verdict. Kelley v. Southern Pulpwood Co., 239 Ark. 1074, 396 S.W. 2d 305; American Casualty Company v. Jones, 224 Ark. 731, 276 S.W. 2d 41. In doing so, we must accept that view of the facts which is the most favorable to the commission’s findings. Albert Pike Hotel v. Trapner, 240 Ark. 958, 403 S.W. 2d 73; Burrow Construction Co. v. Langley, 238 Ark. 992, 386 S.W. 2d 484; Elm. Springs Canning Co. v. Sullins, 207 Ark. 257, 180 S.W. 2d 113. We must also keep in mind that the commission must determine the extent to which credit is given to testimony, even when it is undisputed. [Citing cases.].”

After a careful review of the record in this case, we are unable to say that the findings and order of the commission were not supported by substantial evidence. That being true, it follows that the judgment of the Little River County Circuit Court should be, and hereby is, affirmed.

It is so ordered.

       The medical testimony reflects that the carpus is the wrist bone and a carpal tunnel syndrome is compression of the median nerve by the transvers metacarpal ligament.

       Dr. Greene defined causalgia as “a disturbance in the autonomic nerves which supply an extremity and no one knows the exact pathophysiology other than it’s a reflex mechanism where the sympathetic nerves are over stimulated. Now, why they become over stimulated, no one knows this. What happens is, the nerves received abnormal stimulation. This develops recurrent pain and the patient then does not use the part.”

       There is no testimony by these doctors in the record.


author: Carleton Harris, Chief Justice. JOHN A. FoGLEMAN, Justice,

text:
    Jacob CANTRELL III by His Next of Friend and Guardian J. C. CANTRELL, Jr. v. Charles S. GOLDBERGER, Municipal Judge
    CR 74-7
    510 S.W. 2d 546
    Opinion delivered June 24, 1974

      Thurman Ragar Jr., for appellants.

      Jim Guy Tucker, Atty. Cien., by: Alston Jennings Jr., Asst. Atty. Gen., for appellee.
   Carleton Harris, Chief Justice.

Jacob Cantrell III, 17 years of age, was arrested in Jefferson County by sheriff’s deputies, without a warrant, for possession of marijuana, a misdemeanor. He was never taken before the Juvenile Court of Jefferson County. Instead, he was charged with the offense in the Municipal Court of Pine Bluff. Young Cantrell entered a plea of not guilty and moved that the case be transferred to the Juvenile Court of Jefferson County. In support of his motion, it was asserted that, since Cantrell was arrested without a warrant, the jurisdiction of the juvenile court over him was exclusive until that court transferred the matter to another court. The motion was denied. Thereupon, the minor, by his next friend and guardian, J. C. Cantrell, Jr., petitioned the Circuit Court of Jefferson County for a writ of prohibition to the municipal court restraining and prohibiting that court from proceeding further in the trial of appellant. The writ was denied, and timely appeal was taken.

Ark. Stat. Ann. §§ 45-201 — 45-244 (Repl. 1964 and Supp. 1973) constitutes Chapter 2 of Title 45 dealing with juvenile delinquents and juvenile courts.

Let it first be pointed out that this appeal relates only to minors who are arrested without a warrant, and appellant relies on Ark. Stat. Ann. § 45-224 (Repl. 1964) which provides that where one, under the age of 18 years, is arrested without a warrant, it shall be the duty of the officer making the arrest to take that person directly before the juvenile court of the county, wherein such court, after having given notice as required by the act, will proceed to an examination of the case, determining whether the minor is a dependent or delinquent child, or, within his discretion, the judge of the juvenile court may dismiss the cause and transfer the minor to any of the courts having jurisdiction of the offense of which the minor may be found guilty. A proper determination of the intent of the General Assembly requires that all of the provisions of the act be read together, and when this is done, we are of the view that appellant’s argument must fail. Ark. Stat. Ann. § 45-240, we think, makes it clear that the legislature did not intend, and did not grant, exclusive authority in the juvenile (county ) court in matters relating to the arrest of persons under 18 years of age without a warrant. That section provides:

“Nothing in this act shall be construed to be in conflict (with) or to repeal or to prevent proceedings under any act or statute of this State which may have otherwise defined any specific act of any person as a crime or misdemeanor of any character, which act might also constitute contributory delinquency or contributory dependency, or to prevent or to interfere with proceedings under any such acts, *** ”

We have no Arkansas cases interpreting this section, but the United States District Court for the Eastern District of Arkansas, Western Division, had occasion to mention the same contention in the case of Pritchard, et al v. Downie, 216 F. Supp. 621. There, the late District Judge, Gordon E. Young, a highly respected jurist, after citing the statute, said:

“The plaintiffs contend that this statute requires that minors be taken to the juvenile court instantly and always. I have considerable doubt as to the efficacy of this position. Section 45-240 of the Arkansas Statutes provides that nothing in this act (which includes 45-224) will affect or prevent ‘proceedings under any act or statute of this State which may have otherwise defined any specific act of any person as a crime or misdemeanor of any character, which act might also constitute contributory delinquency or contributory dependency, or to prevent or to interfere with proceedings under any such acts, * * It appears from this statute that the officers may elect as to the manner in which they are to proceed; i.e., whether the child should be taken before the juvenile court as a delinquent or charged in criminal court under a separate crime or misdemeanor. The record reflects that this has been the customary practice of the Little Rock police under these statutes.”

While this was not the controlling point in the litigation there at issue, we agree with the reasoning of that court. After all, the 17 year old minor in this case was not charged with being a delinquent; rather, he was charged with a specific offense, the possession of marijuana, and the municipal court had jurisdiction over the accused and the alleged offense with which he is charged.

Although we think that § 45-240 disposes of appellant’s contention, as a matter of further showing the intent of the General Assembly in passing the original act, and amending it from time to time, other matters should be mentioned. Under the view advanced by appellant, who contends that an arrested juvenile must be taken “directly before the juvenile court”, procedure to be followed would become rather confusing and complicated, and in fact, some of the pertinent provisions would be in conflict.

Ark. Stat. Ann. § 45-202.1 (Supp. 1973) grants county judges authority to appoint referees who are authorized to pass on all juvenile cases. However, the next section, 45-202.2, provides that appeals may be taken to the judge of the juvenile court from the decision of the referee by causing the papers to be lodged with the judge of that court within ten days after a decision is made. It, of course, is at once apparent that this section is in conflict with § 45-224, which, as heretofore stated, provides that after the minor is taken directly before the county court, such court may either determine that the minor is a dependent or delinquent child, or may transfer such person to any of the courts having jurisdiction of the offense. In other words, it clearly appears that the General Assembly has not explicitly required, nor intended, that the minor be taken directly before the county judge, else there would be no reason for a section providing an appeal from the decision of the referee to the county court. Certainly, it cannot be said that § 45-202.1 simply permits the referee to act in the place of the juvenile court. Suppose that one is arrested without a warrant and taken before the referee, and after a hearing, the latter decides that the minor should be transferred to the municipal court. While the juvenile judge, under the section relied upon by appellant, would have this right to transfer, the referee would not, for § 45-202.2 gives the minor the right to appeal from the referee’s decision to the judge of the juvenile court.

At any rate, the procedure outlined seems unnecessary, since both the circuit court and the municipal court have the authority, when a juvenile is brought before their respective tribunals, to, if they deem it proper, transfer the case to juvenile court for disposition; accordingly, the person whose case should be adjudicated by the county judge or the juvenile referee is not deprived of that right under our present law.

Affirmed.

Brown and Fogleman.JJ., dissent.

JOHN A. FoGLEMAN, Justice,

dissenting. I would probably join in the majority opinion if it were within the province of this court to make a policy decision. I certainly would, if I could find it possible to read the English language as the majority reads it in applying Ark. Stat. Ann. § 45-240 (Repl. 1964). But I find neither of these alternatives possible. The General Assembly has eliminated the possibility of a policy decision, even if it were otherwise in the jurisdiction of the judicial department. I am simply unable to understand how § 45-240 can be read to have the effect given it by the majority without emasculating it. In order to do so, this particular section must be read with a vision so peculiarly astigmatic that a whole limiting and qualifying clause printed in virtually two full lines in the official 1911 Acts of Arkansas, more than a full line in Ark. Stat. Ann. and nearly two lines in the majority opinion is totally obscured. In order to apply the section as the majority has, it must be read:

Nothing in this act shall be construed to be in conflict (with) or to repeal or to prevent proceedings under any act or statute of this State which may have otherwise defined any specific act of any person as a crime or misdemeanor of any character, **** or to prevent or to interfere with proceedings under any such acts, ****

The omission is that which clearly makes the section inapplicable here. The clause omitted is “. . . which act might also constitute contributory delinquency or contributory dependency ...”

If there could be any lingering doubt about the effect to be given these limiting and qualifying words and their inconsistency with the application of the statute made by the majority it should be totally dispelled by a reading of the remainder of the section. Those words clearly indicate that the type of offenses which might be described as contributory delinquency or contributory dependency were the only ones intended to be treated by that section of the act. The remainder of the section not quoted in the majority opinion follows:

**** nor shall it be construed to be inconsistent with or to repeal any act providing for the support of the parent, or parents of their minor children, or any act providing for the punishment or cruelty to children or the taking of indecent liberties with, or selling whiskey, tobacco or firearms to children, or permitting them in evil or disreputable places, and nothing in any such act or similar acts shall be construed to be inconsistent with or repeal this act or prevent proceeding hereunder, but in all cases where there shall be more than one prosecution for the same offense under whatever acts of the character herein described, the fact may be given in evidence to the judge of the court and may be in the discretion of the court considered in mitigation of any sentence in any such cases.

In order to properly view the matter, the provisions of Act 215 of 1911, now appearing as Ark. Stat. Ann. §§ 45-201 — 206, 45-209 — 216, 45-218, 45-220 — 225, 45-227 — 240 (Repl. 1964 and Supp. 1973) must be looked to. There the General Assembly was attempting to deal effectively with what was then, and is now, a difficult and perplexing social problem — the proper handling of minors who are either actual or potential offenders against the law and society. It was the first effort made in this state to treat the problem comprehensively. The plan adopted was in accord with a prevailing national trend. See Maxted, Some Problems of Courts for Arkansas, 9 Ark. L. Rev. 23. See also, McDonough, The Juvenile Court and Judicial Reform in Arkansas, 22 Ark. L. Rev. 17. It then was widely accepted and approved as a progressive move. It was first tested in Ex parte King, 141 Ark. 213, 217 S.W. 465. In that opinion this court mirrored the prevailing mood of the day, saying:

The progressive and enlightened policy of such legislation is everywhere recognized and commended. Happily for the unfortunate class benefited and for the public weal we find no barrier in our organic law to the act in its present form.

It then behooves us to ascertain the “unfortunate class benefited.” The very first section of the act makes all under the age of 18 years, for the purposes of the act, wards of the state, whose persons were made subject to the guardianship and control of the county court, sitting under the pseudonym, juvenile court. Ark. Stat. Ann. §§ 45-201 (Supp. 1973), 45-206, 45-202 (Repl. 1964). Ex parte King, supra. The act then undertakes to define the particular class benefited. It consists of dependent children, neglected children and delinquent children. Insofar as this case is concerned, we need only to look to the definition of the words “delinquent child” to determine whether appellant might be in that category. The definition includes any child under the age of 18 years who commits any act for which he might be prosecuted for a felony or misdemeanor if he were over 18. Appellant is in that class, if guilty. Ark. Stat. Ann. § 45-204 (Supp. 1973).

It was clearly the intention of the legislature to place within the jurisdiction and power of the county court (for convenience called the juvenile court), in the manner provided in the act, the disposition of minors, who are considered as wards of the state, i.e., under the age of 18 years. Ark. Stat. Ann. § 45-201, 45-209 (Repl. 1964). Ex parte King, supra. That jurisdiction extends to “all cases coming within the terms of the act.” Ark. Stat. Ann. § 45-206. The act explicitly requires a liberal construction, to the end that, in case of delinquency, as far as practicable any delinquent child shall be treated, not as a criminal, but as misdirected and misguided and needing aid, encouragement and assistance, and if such child cannot be properly cared for and corrected in his own home or with the help and assistance of probation officers, then he may be placed in a suitable institution where he may be helped and educated and equipped for industrial efficiency and useful citizenship. Ark. Stat. Ann. § 45-233 (Repl. 1964). Ex parte King, supra. It was not the intention of the act to confer upon the county court the power to institute criminal prosecutions against minors or to punish for alleged violations of law. It did undertake reclamation and reformation, rather than condemnation and punishment and to open the doors of an asylum rather than a jail. Through it, the state, as parens patriae, assumes the guardianship of her minors who are under the age of 18 because they come within the terms of the act and need her protection. Ex parte King, supra. The jurisdiction over infants under 18 and their guardianship, so far as their conduct might affect the welfare of the community in which they reside, or are found, is vested in the county court, as a local concern of the county. Ex parte King, supra.

The act, however, did not automatically vest that court with exclusive jurisdiction in every case in which a violation of a state law is involved or alleged. It did not give jurisdiction to the county court over a minor under 18 against whom prosecution has been commenced in a manner which requires his arrest upon a warrant issued out of any court in this state. Ark. Stat. Ann. § 45-224 (Repl. 1964). When, however, a child under the age of 18 years is arrested without a warrant, it shall be the duty of the arresting officer to take him directly before the juvenile court. That court then may either exercise its discretion to transfer the child to any of the courts of this state having jurisdiction of the offense of which he may be found guilty, or proceed under the provisions of the act for reclamation and reformation of wayward youth. Ark. Stat. Ann. § 45-224. The language of the act as to the minor who may be arrested without a warrant is clearly mandatory. If it had not been so intended, the word “may” rather than “shall” would have been used. A reading of this section (and other statutes) evinces a clear legislative intention that a court acting through a judicial officer, not an arresting officer, make the determination, in the exercise of judicial discretion, whether a youthful law violator should be prosecuted in the criminal courts as an adult would be, with the attendant publicity, the risk that he be imprisoned as an adult with adult offenders, the possibility of evidence in the proceeding being used against him in other proceedings and the resulting criminal record. If the minor is arrested without a warrant, that discretion is to be exercised by the juvenile court, but when arrested on a warrant, by the court from which the warrant issued, or which has jurisdiction by virtue of a charge filed therein. Ark. Stat. Ann. §§ 45-224, 241 (Repl. 1964).

The argument, that Ark. Stat. Ann. § 45-240 (Repl. 1964) makes proceedings against appellant in the municipal court permissible in spite of the fact that he was arrested without a warrant and never taken before the juvenile court, is based upon a misreading of the section. Whatever its effect may be, insofar as this argument is concerned, it is simply a disclaimer of any intention to repeal any act or prevent any proceedings defining as a crime or misdemeanor an act which might also constitute contributory delinquency or contributory dependency.

I have desperately but unsuccessfully tried to fathom the reasoning by which the majority is persuaded that Ark. Stat. Ann. 45-202.1, 202.2 (Supp. 1973) adopted 58 years later than the basic act, has any bearing whatever on the question before the court. Assuming that the latter sections are constitutional, the referee is at best an arm of the county court in the exercise of that court’s jurisdiction. Clearly, there was no legislative intent to create a new court. If so, the act is palpably unconstitutional. Furthermore, I cannot read these sections as the majority does. I do not see why the referee is not authorized to act in these cases as fully as he could in any other, if indeed the General Assembly can vest a referee with such broad powers as it has attempted by these sections. Ark. Stat. Ann. § 45-202.1 clearly states that the referee “. . . shall have power to hear and pass on all Juvenile cases ...”

The courts have no power to inquire into the wisdom, advisability, expediency or propriety of this legislative determination of this matter which was solely for consideration of the legislative department. Ward v. Bailey, 198 Ark. 27, 127 S.W. 2d 272; Albright v. Karston, 206 Ark. 307, 176 S.W. 2d 421; Reed v. Hundley, 208 Ark. 924, 188 S.W. 2d 117; Fugett v. State, 208 Ark. 979, 188 S.W. 2d 641; Cook v. Arkansas-Missouri Power Corp., 209 Ark. 750, 192 S.W. 2d 210; Longstreth v. Cook, 215 Ark. 72, 220 S.W. 2d 443; Beaumont v. Faubus, 239 Ark. 801, 394 S.W. 2d 478.

I would reverse the judgment denying the writ of prohibition and direct the Circuit Court of Jefferson County to issue the writ.

I am authorized to state that Mr. Justice Brown joins in this dissent.

       The act was upheld in Ex Parte King, 141 Ark. 213, 217 S.W. 465, where we pointed out that the court was properly termed the “county court”, and stated:
      “The second section of the act provides: ‘The county courts of the several counties of the State shall have original jurisdiction in all cases coming within the terms of this act. All trials under this act shall be by the court without a jury.’
      “Section 3 of the act provides as follows: ‘The findings of the court shall be entered in a book or books to be kept for that purpose, and known as the “Juvenile Record” and the court may, for convenience, be called “The Juvenile Court”.’ * * *
      “We need not analyze the various provisions of the act. Suffice it to say when they are all considered, as they must be, and given their proper construction in relation to each other, it was not the intention of the Legislature to create a separate and independent tribunal and vest it with certain functions and powers, but rather to place within the jurisdiction and power of the county court, in the manner provided in the act, the subject-matter of the disposition of minors, who, for purposes of the act, are considered wards of the State. * * *
      “The third section, while designating the court as the ‘Juvenile Court’ and its record as the ‘Juvenile Record,’ expressly declares that this is done ‘for convenience’.”

       Recording to the Eighth Annual Report of the Judicial Department of Arkansas, 1972 Judicial Statistics, referees handle juvenile cases in about one-third of Arkansas counties.

       I am not unaware of contrary dictum in Pritchard v. Downie, 216 F. Supp. 621 (D.C. 1963). I simply do not agree with the conclusion stated by the late distinguished trial judge who wrote that opinion.

       Arkansas Statutes Annotated § 45-241 (Repl. 1964) was the only statute invoked in the motion to transfer in Stanley v. State, 248 Ark. 787, 454 S.W. 2d 72. The motion did not mention Ark. Stat. Ann. § 45-224, nor was there any allegation or evidence in support of the motion to indicate that Stanley was arrested without a warrant or prior to the filing of the information against him. No jurisdictional question was asserted in the motion in any manner. The motion simply asked the circuit court to transfer the case to the juvenile court in the minor’s best interest.


author: George Rose Smith, Justice.

text:
    STATE of Arkansas v. Randall L. WILLIAMS, Judge
    CR 74-23
    512 S.W. 2d 531
    Opinion delivered June 24, 1974
    [Rehearing denied September 9, 1974.]

      Jim Guy Tucker, Atty. Gen., by: Alston Jennings Jr., Asst. Atty. Gen., for petitioner.

      George Howard Jr., for respondent.
   George Rose Smith, Justice.

This is an ex parte petition Tiled by the State of Arkansas for a writ of certiorari to quash an order entered in the Jefferson Circuit Court in the case of Jackson v. State. Curtis Lee Jackson, who appears to be the real party in interest, has appeared specially by counsel to ask that the petition for a writ of certiorari be dismissed. Upon the six-page record before us we conclude that the petition should be dismissed, for want of proper parties.

In March, 1973, we affirmed a judgment finding Jackson guilty of burglary and sentencing 'him to imprisonment for two years. Jackson v. State, 253 Ark. 1116, 491 S.W. 2d 581 (1973). In September the trial court, at Jackson’s request, entered an order suspending the sentence and allowing him to remain at liberty, without supervision. Apparently the State filed a notice of appeal from that order, but we infer from the record that the appeal was not perfected owing to the State’s failure to obtain the record and lodge it in this court.

On February 14, 1974, the Attorney General filed the present ex parte petition for a writ of certiorari to quash the trial court’s order of suspension, the State’s contention apparently being that the order is void under such cases as Freeman v. State, 158 Ark. 262, 249 S.W. 582, 250 S.W. 522 (1923). Jackson is obviously the real party in interest, but, as we have indicated, he is >not joined as a party to the proceeding and appears specially to oppose the petition.

We are unwilling to say that the trial court’s order of suspension is so demonstrably void on its face that it should be quashed in a proceeding to which Jackson, the person actually concerned, is not a party. Ordinarily a petition for cer-tiorari is an adversary proceeding, in which interested persons are entitled to be heard. See Black v. Brinkley, 54 Ark. 372, 15 S.W. 1030 (1891). Here it is certainly possible that Jackson has a valid defense to the petition, or at least an arguable one. There is, for example the possibility that the State consented to the order or that its abortive attempt to appeal precludes it from attacking the order. What the State is asking us to do, in this ex parte proceeding, is to cancel the trial court’s order and to send Jackson to prison, without affording him either notice or an opportunity to be heard, and with no evidence except the bare order itself. We are not persuaded that such a summary disposition of the matter is called for.

Petition dismissed.


author: Lyle Brown, Justice.

text:
    Robert D. JONES, Jr. & Anne C. JONES, Individually and as Shareholders of TWIN OAKS FISH FARM, INC. v. Joseph YORK, Janice YORK, Elsa Caroline YORK and TWIN OAKS FISH FARM, INC.
    74-64
    510 S.W. 2d 574
    Opinion delivered June 24, 1974

      Hugh L. Brown and Walter Skelton, for appellants.

      Lightle, Tedder & Hannah, for cross appellants.
   Lyle Brown, Justice.

The appellants, Robert D. Jones, Jr. and wife were plaintiffs below. The defendants below — appellees and cross-appellants here — are Joseph York and wife, and Elsa Caroline York. The litigation stems from the unsuccessful operation of a fish farm by all the parties.

Robert Jones and Joe York, close friends residing in Little Rock, conceived the idea in 1968 of going into the fish farming business. W. D. York and Elsa Caroline York, husband and wife, owned jointly and resided on a farm in White County. They were the parents of Joe York. (W. D. York died before the filing of this suit.) Robert Jones and Joe York persuaded the elder Yorks to join in business with the agreement that the 140 acre farm of the elder Yorks would be used as the fish farm. Thus the three men and their wives entered into a joint venture in late 1968 with the understanding that a corporation would later be formed and each family would own a one-third interest therein.

The parties borrowed $30,000 from the Commercial National Bank in Little Rock with which to begin operations. They all made themselves jointly and severally liable for the debt. The only collateral, in addition to personal endorsements, was the farm which the elder Yorks mortgaged to the bank. It was agreed the Joseph E. Yorks and the Joneses would each pay to the elder Yorks the sum of $11,666 representing an agreed one-third value of the farm. Thereafter, the interests of all would be conveyed to the corporation to be formed. Whether the debts to the elder Yorks were to be paid before the land was deeded to the corporation is disputed.

The corporation, Twin Oaks Fish Farm, Inc., was formed on July 1, 1969. Shortly thereafter, the Robert Joneses and the Joseph E. Yorks moved to the farm site, living in house trailers. After a period of months, differences arose between the parties, largely over the insistence by the Joneses that the land should be deeded to the parties for final conveyance into the corporation. The Joneses left the farm and returned to Little Rock in the summer of 1970. At that time the Joneses had paid $450 on the debt to W. D. and Elsa York. Joseph and Janice York had paid nothing. The Joneses allege they left under an agreement that they, the Joneses, would leave and relinquish all interest in the farm and the corporation except a loan made by Robert Jones to the corporation in the sum of $9,379.45, and the Yorks and the corporation would relinquish all rights against them.

Such agreement as heretofore described is disputed by the Yorks. Elsa York alleged the Joneses still owe her $11,166 on the Robert Jones’ original debt for a one-third interest in the farm. She never conveyed any interest to the Joneses, and admitted at the trial that she could not convey it, having already conveyed the farm to her son, Joe. Elsa York’s claim was denied by the chancellor and she cross-appeals from that part of the judgment.

Robert Jones loaned the corporation $9,379.45 early in its operation. When the farm was sold, all corporate debts were paid out of the proceeds of the sale except the debt to Robert Jones. At the trial it developed that Elsa York was holding a balance of $10,000 from the sale of the farm. The trial court gave the Joneses judgment against the corporation for the debt owing them but denied the Joneses a lien on the proceeds held by Elsa York. The Joneses appeal from thai part of the judgment.

The Joneses also sued Joseph E. and Janice Sue York for $860.37 representing the total of some personal loans made to the Yorks. On this item the chancellor held with the Joneses. The Yorks filed a motion to amend by pleading the statute of limitations but the motion was denied. The Yorks appeal from the denial of the motion.

The points advanced in this court by appellants, the Joneses, are:

I. The chancellor erred in holding that there was no delivery of the deed to the real property in issue to the Twin Oaks Fish Farm Corporation; and in holding that Elsa Caroline York does not hold the funds from the sale of said realty as a constructive trustee for the payment of the corporate debt owed to Robert D. and Anne C. Jones.
II. The chancellor erred in not granting the plaintiffs (appellants) six per cent interest on the $9,379.45 debt which was awarded plaintiffs against the corporation.

The appellee and cross-appellant, Joe York, contends the chancellor erred in not permitting the Yorks to amend their answer by pleading the statute of limitations with reference to the Joneses’ claim for $860.37.

The appellee and cross-appellant, Elsa Caroline York, contends the chancellor erred in refusing to award her judgment against Robert Jones in the principal sum of $ 11,166 for a one-third interest in the lands. Mrs. York concedes that her cross-appeal is “a conditional one”. She says that if this court agrees with the chancellor and “sustains the decree, then she would not be entitled to recover on cross-appeal for the reason that the original agreement to convey to the corporation had not been consummated, and this in itself would have relieved appellant Jones of the necessity to pay”.

The major issue to be resolved by this appeal is whether the chancellor was correct in holding there was no delivery of a deed covering the real estate to Twin Oaks Fish Farm Corporation. We shall now consider the evidence relating to the execution of the deed.

In early 1969 Joe York and Robert Jones engaged attorney Will Mitchell to form a corporation. By July 3, 1969, the papers had been prepared and were forwarded to York. In addition Mr. Mitchell prepared two deeds affecting the farm. “ [T]he plan was for the William D. Yorks to convey to Joe York a one-third undivided interest in that tract and to Jones a one-third undivided interest . . . ., and then it was planned that the three sets of owners would convey title to the corporation. * * * To my knowledge these deeds were never executed. I do know that sometime later on the plan was changed. There were delays and I was never told why the deeds were never executed at the time.”

Mr. Mitchell explained further that upon the execution of the recited deeds, the Joneses and the Joe Yorks were each to deliver a promissory note to W. D. York for their one-third of the purchase price. Mr. Mitchell said that was not done, in fact his files did not reflect that the notes were ever prepared.

Mr. Mitchell testified that in June or July of 1970 a difference arose between the Joe Yorks and the Joneses. Thereupon, the Joneses withdrew from the business. A new proposal was made by Robert Jones to Joe York and Mr. Mitchell prepared the papers. It consisted of a release of all claims that either party had against the other; the debt of the corporation to Robert Jones in the amount of $9,379.45 was acknowledged; the farm was to be conveyed to Twin Oaks Fish Farm; Jones was to get a second mortgage to secure his promissory note; and the Joneses were to surrender their stock in the corporation. All the papers were sent to Joe York but Mr. Mitchell did not know whether they were ever executed. The witness said he had no knowledge as to whether the new plan was ever put into effect.

Witness Mitchell also testified that he prepared a deed conveying the farm to the corporation and it was executed. It was delivered to Joe York.

Joe York testified that the new plan of operation, including the deed to the farm, was contingent on refinancing. Mr. Mitchell said he had no knowledge of the contingency but he said he did know that Joe York was trying to refinance the operation. Joe York testified he went to numerous lending institutions with the plan but was rejected. The main reason, he said, was that the financiers objected to financing an operation in which half the stock would be owned by an elderly couple (the W. D. Yorks). As a result of his inability to get refinancing, Joe York said he destroyed the papers relating to the new proposal and had his parents deed him the property. Before he could make progress on refinancing with him as the sole owner the note to Commercial National Bank became long past due. In addition several thousand dollars in accounts which were owed by the corporation became due. The Yorks had personally guaranteed the accounts. Consequently, the farm was sold to an individual. There were sufficient funds raised by the sale to pay the recited debts. There was a balance of over $10,000 and Joe York explained that he gave the funds to his mother because he considered her the actual owner of the farm.

Attorney Mitchell’s testimony lent some support to Joe York’s position about the contingency of refinancing. He said that “refinancing was in the picture on the part of the Joe Yorks”. Also, Robert Jones’ testimony gave some credence to Joe York’s position. Jones said he was aware that York thought the new arrangement would make possible the badly needed refinancing. The loan was not obtained, no deeds or mortgages were recorded, and no minutes were placed in the corporation minute book. The trial court specifically found there was no delivery of the deed to the real property to Elsa York. The note and second mortgage to Jones were never signed and delivered.

The chancellor concluded that the deed from the Yorks to the corporation was contingent upon refinancing and that the deed was never delivered. We have not tried to mention all the evidence but we have considered carefully the entire abstract. Credibility was an important factor. The issue was close but we are unable to say that the conclusion of the chancellor is clearly against the preponderance of the evidence.

On the other point raised by the appellants, the Joneses, we think the chancellor should have granted judgment for six per cent interest on the $9,379.45 debt. The promissory note for the debt reflected interest and 'in fact the corporation actually made an interest payment.

On the cross issue of whether Joe York should have been permitted to amend to plead the statute of limitation on the personal debt of $860.37, we are unable to say the chancellor abused his discretion. The motion to amend was not made until long after the trial had started and a considerable portion of the evidence had been taken.

Since we are sustaining the chancellor on the issue of whether there was delivery of the deed from the Yorks to the corporation, we find no merit in cross-appellant Elsa Caroline York’s contention that she should have judgment against Robert Jones for $11,166.

Affirmed as modified.


text:
    Kenneth Marcus ALLEN v. STATE of Arkansas
    CR 74-33
    510 S.W. 2d 541
    Opinion delivered June 24, 1974

      Robert J. Morehead, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Robert S. Moore Jr., Asst. Atty. Gen., for appellee.
   Lyle Brown, Justice.

Appellant was convicted and sentenced to twenty-two years imprisonment in connection with the armed robbery of a branch bank in Sherrill, Arkansas. The four points for reversal are that the confession was not voluntary; that the court illegally proscribed the questioning by appellant’s attorney of the circumstances surrounding the taking of the confession; that the identification testimony was unreliable and should have been stricken; and that the verdict was contrary to the evidence.

The Confession. Within a few weeks after the robbery appellant was taken into custody in California by a federal agent under a warrant charging unlawful flight. Special Agent Hoffer questioned appellant on the way to the courthouse for an identity hearing. In the Denno hearing appellant testified that Hoffer threatened to have appellant’s mother arrested for harboring a fugitive if appellant did not make a statement. Opposed to that allegation was the testimony of Hoffer, who testified that appellant’s admissions were freely and voluntarily given; that no threats were made; and no promise of reward was given. Appellant also testified on cross-examination that he voluntarily signed the waiver of rights form. Considering all those surrounding facts, together with the considerable weight given by us to the trial court’s resolution of evidentiary conflicts, we conclude that the admission of guilt was voluntary.

The Conduct of the Denno Hearing. First, appellant contends his counsel was not permitted to probe into the circumstances surrounding the taking of the confession. When it appeared to the court that appellant’s counsel was asking questions not pertinent to the voluntariness of the confession, the court admonished him that the sole question in the Denno hearing was the voluntariness of the confession. Counsel agreed with the court, changed his line of questioning, and made no objection to the court’s ruling.

Appellant further contends under this point that Gene Hoffer should not have been allowed to testify in the absence of producing the notes which Hoffer made while appellant was making his statement. Agent Hoffer said he destroyed the notes after making up and filing his formal report. Appellant advances no argument to support this sub-point; further, we are not cited any authority, and we know of none, which would make Hoffer’s testimony inadmissible in the absence of the notes he took.

The Identification Testimony. The two employees who were present in the bank at the time of the robbery positively identified appellant at the trial. Appellant’s point is based on alleged discrepancies in the testimony of the two witnesses as to their identification of appellant in a lineup when he was returned to Arkansas. The photographs made at the lineup showed appellant wearing a beard but it was agreed by the witnesses that appellant had no beard at the time of the robbery. One of the witnesses testified that in the pictures shown her, appellant was wearing a beard. The other witness did not think any of the persons in the lineup was wearing a beard. The discrepancy in the testimony, which is nothing more than minor, went only to the credibility of the witnesses and did not constitute prejudicial error. As previously mentioned, appellant was, positively identified at the trial by both witnesses.

The weight of the evidence. It is contended that in the absence of unreliable evidence on identification and the coerced confession there is no evidence to connect defendant with the crime. It is apparent from what we have said about the propriety of the identification evidence and the admissibility of the confession that the point has no merit.

Affirmed.


author: JOHN A. Fogleman, Justice.

text:
    H. E. BROWN et ux v. CENTRAL ARKANSAS PRODUCTION CREDIT Association
    74-54
    510 S.W. 2d 571
    Opinion delivered June 24, 1974

      Herby Branscum Jr., for appellant.

      Hartje & Hartje, for appellee.
   JOHN A. Fogleman, Justice.

This appeal was taken from a decree of the Chancery Court of Perry County in a foreclosure suit awarding appellee a judgment for $2,915.10, interest and an attorney’s fee of $750.99. The suit was filed on March 1, 1972. The complaint alleged that an indebtedness then amounting to $15,081.97 remained due appellee on a note for $18,910.54 executed by appellants on December 17, 1969 and secured by a mortgage on certain real property and a security interest in certain farm equipment. After the suit was filed, appellants, with permission of appellees, sold the farm equipment and applied the proceeds to the debt. Thereáfter, appellants filed a petition seeking a stay of the sale of the real estate, and later alleged that appellee had charged a usurious rate of interest, and that the attorney’s fee of $750.00 allowed in the decree was unreasonable. After a hearing, the chancellor rejected appellants’ contentions but reduced the judgment from $2,-962.11 previously awarded. We affirm.

At the hearing, appellant Henry Brown testified that he borrowed the face amount of the note from Central Arkansas Production Credit Association on December 17, 1969 and that no payment was made until January 4, 1971 when $6,-000 was paid by check. Brown said $2,019 of this was applied to interest and the remainder to principal. Brown said he first borrowed money from the Production Credit Association in 1952 or 1953. Appellants objected to cross-examination of Brown about his 1969 Central Arkansas Production Credit Association loan made in January, 1969, but when the objection was overruled, he answered that, while he did not think he owed appellee anything that was not incorporated into the face amount of the note sued on, it was possible that he did.

Estella Shaw, treasurer of the credit association, testified about the history of loans made to Brown on January 13 and December 17, 1969. She related that sometimes there is a time lag between a loan application and its approval by the association’s loan committee. She said that the note sued on was prepared on December 17, 1969 and that an unpaid balance on the January loan amounting to $15,355.54 was “renewed” as a part of the indebtedness evidenced by the new note. Under the lender’s procedures, the application, note and mortgage are prepared the same day. If there is a time lapse between the application and disbursement upon approval of the loan, interest accrued in the interval on a preexisting indebtedness is not included in the new note. According to her calculations interest at 7% on Brown’s debt remaining unpaid on the January loan amounted to $144.31, when the $6,000 payment was made. Mrs. Shaw applied the first $144.31 to the payment of this interest and the balance as a credit on the new note. She pointed out that no recovery of the $144.31 item was sought in the foreclosure complaint. On cross-examination, she admitted that the $2,019.00 credited to interest on both the old and new loans would exceed 10% per annum on the principal of the new loan. She also said that interest amounting to $1,874.69 was charged on the December loan at the time of this payment and that principal was credited with the remaining $3,981.00.

The chancellor held that the contract was not usurious, but said that some confusion about the $144.31 item was attributable to appellee’s failure to furnish appellants with a breakdown showing the indebtedness existing at the time of the $6,000 payment and the application of that payment. Upon this basis, he ordered that the judgment be reduced by this amount and described his action as a gift to appellants by the court. Because of evidence showing that only $1,200 was disbursed to appellants at the time of the December loan, the chancellor did not accord full credibility to Henry Brown’s testimony denying any indebtedness to appellee in December 1969 other than the face amount of the note.

Appellants first contend that the chancellor erred in admitting over their objection testimony relating to indebtedness existing prior to the note sued on, because no allegation in appellee’s pleading indicated that a part of the payment made in January 1971 was or should have been applied to the preexisting indebtedness. Appellants argue that, because appellee’s treasurer, by answering pretrial interrogatories (not abstracted) stated that the original amount of the debt was $18,910.54 and that the amount of interest paid in 1971 was $2,019.00, without stating that a part had been applied to a previous debt, the court permitted a new issue to be raised over their objection and that the testimony was immaterial to any issue in the case. We do not agree with appellants on this point.

The note was not usurious upon its face, so the burden of proving usury rested upon appellants. Hayes v. First National Bank of Memphis, 256 Ark. 328, 507 S.W. 2d 701 (1974); Peoples Loan and Investment Company v. Booth, 245 Ark. 146, 431 S.W. 2d 472. The issue must be determined as of the date of the contract involved and not by subsequent events. United-Bilt Homes, Inc. v. Teague, 245 Ark. 132, 432 S.W. 2d 1. In order for a charge to constitute usury, there must have been an intention on the part of the lender to take or receive more than the maximum legal rate of interest. Ragge v. Bryan, 249 Ark. 164, 458 S.W. 2d 403. In an effort to meet this burden, Henry Brown testified that he was charged $2,019 interest when he made the $6,000 payment. In determining whether this charge was usurious, all attendant circumstances germane to the transaction should be taken into consideration. Textron, Ine. v. Whitener, 249 Ark. 57, 458 S.W. 2d 367; Ragge v. Bryan, supra. Assuming, without deciding, that appellee’s application of the $6,000 payment could have rendered the transaction usurious, it would have been error for the chancellor to have excluded evidence as to the status of Brown’s indebtedness to appellee at the time the note was executed and the loan approved and appellee’s reasons for applying the payment as it did. See Nineteen Corporation v. Guaranty Financial Corp., 246 Ark. 400, 438 S.W. 2d 685.

We likewise disagree with appellant’s contention that the chancery court erred in its holding that the note- and mortgage should not be cancelled for usury. The intention to charge a usurious rate of interest will never be presumed, imputed or inferred where an opposite result can be reached. Hayes v. First National Bank of Memphis, 256 Ark. 328, 507 S.W. 2d 701 (1974). To constitute usury, there must have been an intention on the part of the lender to take or receive more than the legal rate. Ragge v. Bryan, 249 Ark. 164, 458 S.W. 2d 403. When the questioned instrument is not usurious on its face, this intent must be clearly shown. Arkansas Real Estate Company v. Buhler, 247 Ark. 582, 447 S.W.2d 126. The evidence in this case falls far short of showing such an intention. We agree with the chancellor that it clearly preponderates in favor of appellee.

Appellant’s contention that the attorney’s fee allowed was excessive seems to be based upon their misconception of the factors to be considered. They contend that an allowance of a $750 fee on a judgment for only $2,915.00 was excessive because it involved only the filing of a complaint, answering a set of interrogatories and appearing at a one-hour trial. The note in question provided for the allowable statutory 10% for attorney’s fees. At the time of the filing of the complaint the debt was more than $15,000 and resort to a security interest in personal property was contemplated. The subsequent sale of this property, by agreement, was certainly attributable, at least in part, to the filing of the suit. The chancellor felt that he might have been justified in allowing $1800.00 (on the basis of the face amount of the note) and held that $750.00 was proper. We have said that considerable weight must be given in such matters to the opinion of the trial judge before whom the proceedings are conducted. Robinson v. Champion, 251 Ark. 817, 475 S.W. 2d 677. See also Slayton v. Russ, 205 Ark. 474, 169 S.W. 2d 571. We certainly cannot say the chancellor made an excessive allowance in this case and are inclined to agree with him that a fee of $750 was reasonable under all the circumstances. '

The judgment is affirmed.